\nSchedule A Fixed Rent<\/p>\nExhibit A Land
\nExhibit B List of Units of Condominium
\nExhibit C-1 Floor Plan of 41st Floor
\nExhibit C-2 Floor Plan of 42nd Floor
\nExhibit C-3 Floor Plan of 43rd Floor
\nExhibit C-4 Floor Plan of 44th Floor
\nExhibit C-5 Floor Plan of 45th Floor
\nExhibit C-6 Floor Plan of 46th Floor
\nExhibit C-7 Floor Plan of 48th Floor
\nExhibit C-8 Floor Plan of 49th Floor
\nExhibit C-9 Floor Plan of 50th Floor
\nExhibit D Rentable Area of Building and Each Floor
\nExhibit E Landlord’s Work
\nExhibit F-1 Form of Non-Disturbance Agreement for
\n Underlying Leases
\nExhibit F-2 Form of Non-Disturbance Agreement for
\n Mortgages
\nExhibit G Form of Assumption Agreement
\nExhibit H Rules and Regulations
\nExhibit I List of Contractors Approved for Initial
\n Alterations
\nExhibit J Alteration Rules and Regulations
\nExhibit K HVAC Specifications
\nExhibit L Cleaning Specifications
\nExhibit M-1 PSI Dedicated Lobby
\nExhibit M-2 Bank X Elevator Lobby and Bank X Concourse
\n Elevator
\nExhibit M-3 Location of Lobby Partitions, Security Desk
\n and Podium
\nExhibit N Building’s Certificate of Occupancy
\nExhibit O-1 Form of Landlord’s Consent to Assignments
\nExhibit O-2 Form of Landlord’s Consent to Subleases
\nExhibit P Permitted Location of Unisex Lavatories (Each
\n Floor)
\nExhibit Q Acknowledged ACM Areas
\nExhibit R Switchgear Room (Containing Designated 20th
\n Floor Electrical Panels)
\nExhibit S Primary Landlord Conduit Areas
\nExhibit T-1 Stairwell B Enclosure Location
\nExhibit T-2 Stairwell E Enclosure Location
\nExhibit T-3 Designated Fire Stairwells
\nExhibit U Map of Possible Area of Qualified Relocation
\n Premises
\nExhibit V-1 Specifications for Chilled Water Meter
\nExhibit V-2 Specifications for Steam Meter
\nExhibit W Lease Amendments and Modifications; Re: GSAM
\nExhibit X-1 Tenant’s Penthouse Roof Area
\nExhibit X-2 Building Penthouse
\nExhibit X-3 Ancillary Telecommunications Roof Area
\nExhibit X-4 Tenant’s Fuel Tank Area
\nExhibit X-5 Tenant’s 20th Floor Electrical Power Areas
\nExhibit X-6 Structural Work Preliminary Plans
\nExhibit X-7 Penthouse Work Preliminary Plans
\nExhibit X-8 Noise and Vibration Specification
\nExhibit X-9 Description of Tenant’s UPS Units
\nExhibit X-10 Fire Tower
\nExhibit X-11 Designated Hot Decks
\nExhibit X-12 Building’s Freight Elevator Lobby
\nExhibit X-13 Specifications for 50th Floor Pipe Relocation
\n Work
\nExhibit Y Floor Plan of 47th Floor (47th Floor Space)
\nExhibit Z Disabled Person Access Procedures
\n<\/c><\/s><\/caption>\n<\/table>\n
-iii-
\n 5
\n LEASE, dated April 5, 1994, between THE CHASE MANHATTAN BANK
\n(NATIONAL ASSOCIATION), incorporated under the laws of the United States of
\nAmerica, having an office at 4 Chase MetroTech Center, 17th Floor, Brooklyn, New
\nYork 11245, Attention: Vice President (herein called “LANDLORD”) and THE GOLDMAN
\nSACHS GROUP, L.P., a Delaware limited partnership, having its principal business
\naddress at 85 Broad Street, New York, New York 10004, Attention: General
\nServices Department (herein called “TENANT”).<\/p>\n
W I T N E S S E T H:<\/p>\n
ARTICLE 1<\/p>\n
Premises, Term and Fixed Rent<\/p>\n
1.01. Landlord hereby leases to Tenant, and Tenant hereby
\nhires from Landlord, upon and subject to the terms, covenants, provisions and
\nconditions of this lease, the premises described in Section 1.03, which premises
\nare located in the building known as One New York Plaza in the City, County and
\nState of New York (herein called the “BUILDING”), which Building is located on
\nthe land described in Exhibit A attached hereto and made a part hereof (herein
\ncalled the “LAND”).<\/p>\n
1.02. As of March 4, 1993, Landlord, as the then sole fee
\nsimple owner of the Building and the Land, submitted the Building and the Land
\nto condominium ownership in accordance with the Condominium Act (as defined in
\nArticle 31 hereof) by recording the Condominium Declaration (as defined in
\nArticle 31 hereof), and thereby created the condominium known as The One New
\nYork Plaza Condominium (the “CONDOMINIUM”), which Condominium consists of the
\nunits described on Exhibit B annexed hereto and made a part hereof (each, a
\n“UNIT”, and collectively, the “UNITS”), and which Condominium is governed by the
\nCommon Owner and\/or the Board, as such terms are defined in and as more
\nparticularly set forth in the Condominium Declaration; such Board and Common
\nOwner being herein referred to collectively as the “CONDOMINIUM BOARD”).<\/p>\n
1.03. The premises leased to Tenant hereunder (herein called
\nthe “PREMISES”) consist of those portions of the forty-first (41st),
\nforty-second (42nd), forty-third (43rd), forty-fourth (44th), forty-fifth
\n(45th), forty-sixth (46th), forty-eighth (48th), forty-ninth (49th) and
\nfiftieth (50th) floors of the Building that are shown hatched on the floor plans
\nattached hereto as Exhibit C-1 through Exhibit C-9, respectively.<\/p>\n
1.04. The term of this lease (a) shall commence on the date
\nhereof (the “COMMENCEMENT DATE”), and (b) shall end at 11:59 p.m. on last day of
\nthe month in which occurs the tenth (10th) anniversary of the day preceding the
\nFixed Rent Commencement Date (as hereinafter defined) (such day being herein
\ncalled the “INITIAL EXPIRATION DATE”, and such day, as the same may be extended
\npursuant to Article 38 hereof, being herein called the “EXPIRATION DATE”), or on
\nsuch earlier date upon which the term of this lease shall expire or be canceled
\nor terminated pursuant to any of the conditions or covenants of this lease or
\npursuant to law. As used in this lease, the term “THEN CURRENT EXPIRATION DATE”
\nshall mean, as of any date, the last day of the last Renewal Term the Renewal
\nOption with respect to which has, as of such date, been finally exercised or if,
\nas of such date, no Renewal Option has been finally exercised, the Initial
\nExpiration Date. As used above, the phrase “finally exercised” shall mean, with
\nrespect to any Renewal Option, that the same has been duly exercised by Tenant,
\nthat any right of Landlord to render such exercise void, and any right of Tenant
\nto rescind such exercise, shall have lapsed or been waived in writing.
\n 6
\n 1.05. The rents shall be and consist of (1) fixed rent (herein
\ncalled “FIXED RENT”), which shall be payable for the Premises at the per annum
\nrates therefor set forth on Schedule A annexed hereto, and which, subject to the
\nprovisions of Section 1.06 below, shall be payable commencing on the
\nCommencement Date and thereafter in equal monthly installments in advance on the
\nfirst day of each and every calendar month during the term of this lease, and
\n(2) additional rent (herein called “ADDITIONAL CHARGES”) consisting of Tax
\nPayments (as hereinafter defined), Operating Payments (as hereinafter defined)
\nand all other sums of money as shall become due from and payable by Tenant to
\nLandlord hereunder; all to be paid in lawful money of the United States to
\nLandlord at its office, or such other place, or to Landlord’s agent and at such
\nother place, as Landlord shall designate by written notice to Tenant.<\/p>\n
1.06. The “FIXED RENT COMMENCEMENT DATE” shall be September
\n21, 1994. Notwithstanding anything to the contrary contained in Section 1.05
\nabove, (i) there shall be a complete abatement of the Fixed Rent set forth on
\nSchedule A attached hereto for the period commencing on the Commencement Date
\nand ending on the day preceding the Fixed Rent Commencement Date, both days
\ninclusive, and (ii) such Fixed Rent for the month in which the Fixed Rent
\nCommencement Date occurs shall be a prorated amount, determined on a per diem
\nbasis, and shall be payable on the Fixed Rent Commencement Date. Furthermore,
\nthere shall be an additional abatement of the Fixed Rent payable with respect to
\nthe Premises located on the forty-third (43rd) floor of the Building only
\n(determined on a pro-rata rentable square foot basis between the Premises
\nlocated on such forty-third (43rd) floor of the Building and the entirety of the
\nInitially Demised Premises (as defined in Article 31 hereof) based solely upon
\nthe Fixed Rent as set forth on Schedule A attached hereto, i.e., without regard
\nto any increase in such Fixed Rent pursuant to the provisions of Article 42
\nhereof and the operation of Section 1.11 hereof)) for the period commencing on
\nthe Fixed Rent Commencement Date and ending on the day preceding the first (1st)
\nanniversary of the Fixed Rent Commencement Date, both days inclusive.<\/p>\n
1.07. Tenant covenants and agrees to pay Fixed Rent and
\nAdditional Charges as follows: Tenant shall pay Fixed Rent and Recurring
\nAdditional Charges (as hereinafter defined) without notice or demand therefor.
\nTenant shall pay all other Additional Charges at such time or times as may be
\nprovided for herein, or, if no due date is specified, within thirty (30) days of
\nnotice or demand therefor. Tenant shall pay Fixed Rent and all Additional
\nCharges without any abatement, deduction or setoff for any reason whatsoever,
\nexcept as may be expressly provided in this lease. Unless otherwise instructed
\nby Landlord, Fixed Rent and Recurring Additional Charges shall be paid by wire
\ntransfer of immediately available federal funds to Landlord or its designee, to
\nsuch account(s) as may be designated in written directions delivered by Landlord
\nto Tenant from time to time, and in the absence of any such instructions, in the
\nsame manner as hereinafter provided for other Additional Charges. All other
\nAdditional Charges shall be paid by good and sufficient check (subject to
\ncollection) drawn on a bank which is a member of the Federal Reserve system or a
\nsuccessor thereto. As used herein, the term “RECURRING ADDITIONAL CHARGES” shall
\nmean (i) those Additional Charges payable periodically by Tenant in accordance
\nwith the provisions of Section 3.02(b) hereof, (ii) those Additional Charges
\npayable monthly by Tenant in accordance with the provisions of Section 3.03(b)
\nhereof, and (iii) those Additional Charges payable monthly by Tenant in
\naccordance with the provisions of Section 41.07 hereof.<\/p>\n
1.08. No payment by Tenant or receipt or acceptance by
\nLandlord of a lesser amount than the correct Fixed Rent or Additional Charges
\nshall be deemed to be other than a payment on<\/p>\n
-2-
\n 7
\naccount, nor shall any endorsement or statement on any check or any letter
\naccompanying any check or payment be deemed an accord and satisfaction, and
\nLandlord may accept such check or payment without prejudice to Landlord’s right
\nto recover the balance or pursue any other remedy in this lease or at law
\nprovided.<\/p>\n
1.09. If any of the Fixed Rent or Additional Charges payable
\nunder the terms and provisions of this lease shall be or become uncollectible,
\nreduced or required to be refunded because of any legal rent restrictions
\nenacted by a governmental authority, Tenant (without any additional expense to
\nTenant, other than expense which is de minimis or which Landlord has agreed to
\npay) shall enter into such agreement(s) and take such other steps as Landlord
\nmay request and as may be legally permissible to permit Landlord to collect the
\nmaximum rents which from time to time during the continuance of such legal rent
\nrestriction may be legally permissible (but not in excess of the amounts nor
\nearlier than the due dates reserved therefor under this lease). Upon the
\ntermination of such legal rent restriction, (a) the Fixed Rent and\/or Additional
\nCharges shall become and thereafter be payable in accordance with the amounts
\nreserved herein for the periods following such termination, and (b) Tenant shall
\npay to Landlord within thirty (30) days after being billed, to the maximum
\nextent legally permissible, an amount equal to (i) the Fixed Rent and\/or
\nAdditional Charges which would have been paid pursuant to this lease but for
\nsuch legal rent restriction less (ii) the rents paid by Tenant during the period
\nsuch legal rent restriction was in effect. The rights and obligations set forth
\nin this Section 1.09 shall survive the expiration or termination of this lease
\nfor a period of three (3) years following such expiration or termination.<\/p>\n
1.10. Additional Charges shall be deemed to be rent and
\nTenant’s failure to pay Additional Charges shall be considered a failure to pay
\nrent hereunder and Landlord shall be entitled to all rights and remedies
\nprovided herein or by law in connection therewith.<\/p>\n
1.11. For all purposes of this lease, the Fixed Rent payable
\nwith respect to any particular portion of the Premises shall, absent any express
\nprovisions to the contrary (such as the last sentence of Section 1.06 hereof),
\nbe determined on a pro-rata rentable square foot basis between such portion of
\nthe Premises and the entirety of the Premises.<\/p>\n
ARTICLE 2<\/p>\n
Use of Premises<\/p>\n
2.01. Tenant shall have the right to use and occupy the
\nPremises only as follows: (i) primarily, for general and executive office use,
\nand, to the extent incidental to such general and executive office use, for
\ncomputer and data processing, photocopying, kitchenette (including microwave and
\ndishwasher), pantry and vending machine areas (the uses described in this clause
\n(i) being herein called the “PRIMARY USE”); and (ii) secondarily, for (x)
\nprinting, (y) cooking, cafeteria and dining facilities (whether food and
\nbeverages be provided with or without charge), and health and exercise
\nfacilities (whether the same be available with or without charge), all for use
\nsolely by Tenant’s employees and business invitees, and (z) other uses
\nincidental to the Primary Use which are consistent with a first-class office
\nbuilding (the uses described in this clause (ii) being herein called the
\n“SECONDARY USES”).<\/p>\n
2.02. (a) Landlord, throughout the term of this lease, shall
\nmaintain in effect a Certificate of Occupancy for the Building (either temporary
\nor permanent) which, subject to the completion by Tenant of its Initial
\nAlterations (as such term<\/p>\n
-3-
\n 8
\nis defined in Article 11 hereof) in accordance with this lease, will (I) permit
\nthe use of the Premises by Tenant for the Primary Use at occupancy levels, for
\neach portion thereof, which are not less than the occupancy levels therefor set
\nforth in the existing Certificate of Occupancy for the Building, a copy of which
\nis attached hereto as Exhibit N (herein called the “EXISTING CERTIFICATE OF
\nOCCUPANCY”), and (II) permit the floors of the Premises to be loaded with a load
\nat least equal to the permitted floor load set forth on the Existing Certificate
\nof Occupancy; provided, however that Landlord shall have no liability for a
\nbreach of the foregoing if such breach results from any act or omission of
\nTenant or any Tenant Party (as hereinafter defined), which act or omission
\nviolates any provision of this lease.<\/p>\n
(b) If any governmental license or permit (other
\nthan a Certificate of Occupancy for the Building permitting the Premises to be
\nused for the Primary Use at the occupancy levels and with the floor loads
\nreferred to in Section 2.02(a) above) shall be required for the proper and
\nlawful conduct of business in the Premises or any part thereof and if the
\nfailure to have such license or permit would affect the Real Property, Landlord
\nor any occupant of the Building, then Tenant, at its expense, shall duly procure
\nand thereafter maintain such license or permit and, upon request, deliver a copy
\nthereof to Landlord. Additionally, if Tenant shall desire to use the Premises,
\nor any portion thereof, for a use other than the Primary Use at the occupancy
\nlevels and with the floor loads referred to in Section 2.02(a) above, and such
\nuse shall require a modification or amendment of the then existing Certificate
\nof Occupancy for the Building, then, prior to so using the Premises or such
\nportion thereof, Tenant, at its expense, shall procure any such required
\nmodification or amendment. The foregoing provisions are not intended to be
\ndeemed Landlord’s consent to any Alterations or to a use of the Premises not
\notherwise permitted hereunder. Landlord shall execute (and provide any readily
\naccessible information known by Landlord for) any applications and similar
\ndocuments reasonably required in connection with obtaining any licenses or
\npermits or any amendments or modifications of any Certificate of Occupancy for
\nthe Building required by the foregoing provisions of this Section 2.02(b),
\nprovided that such documents are in proper form. Tenant hereby agrees that it
\nshall (i) reimburse Landlord all Landlord’s out-of-pocket expenses incurred in
\nconnection with Tenant’s obtaining of any such license, permit, amendment or
\nmodification (including without limitation those incurred in connection with
\nLandlord’s execution of any applications or similar documents, or its provision
\nof information, as provided in the preceding sentence), and (ii) indemnify and
\nhold harmless Landlord against any and all liabilities which Landlord may incur
\nby reason of its execution of any applications or similar documents, or its
\nprovision of information, as provided in the preceding sentence; provided,
\nhowever, that neither such reimbursement nor such indemnity shall include any
\nsuch expenses or liabilities to the extent that (A) Landlord is responsible
\ntherefor under any other provision of this lease, (B) the same would be, or
\nwould have been, discharged, satisfied or avoided by Landlord’s performance of
\nits obligations under this lease, or (C) the same arise out of any inaccuracy in
\nany information provided by Landlord.<\/p>\n
(c) In connection with the Initial
\nAlterations, Landlord has heretofore delivered to Tenant a Form ACP-5 executed
\nby Landlord’s hygienist with respect to the portion of the Premises located on
\neach Premises Floor (as hereinafter defined). In connection with any Alterations
\nmade subsequent to the Initial Alterations, Landlord, reasonably promptly after
\na request therefor, shall deliver to Tenant, with respect to each portion of the
\nPremises in respect of which such Alterations shall be performed, a Form ACP-5
\nexecuted by Landlord’s hygienist and\/or any other form or documentation which
\nevidences or confirms the absence of asbestos from such<\/p>\n
-4-
\n 9
\nportion(s) of the Premises, provided that (i) such other form or documentation
\nis then required by any governmental agency as a condition to the performance of
\nsuch Alterations, and (ii) the matters evidenced or confirmed by such other form
\nor documentation are not greater in scope then the matters evidenced or
\nconfirmed by the initial Form ACP-5 delivered by Landlord with respect to such
\nportion(s) of the Premises. In no event shall the provisions of this Section
\n2.02(c) require Landlord to perform any work in the Premises or otherwise.<\/p>\n
2.03. Tenant shall not use or occupy the Premises or the
\nBuilding, or suffer or permit anyone to use or occupy the Premises, in any
\nmanner which would violate the Certificate of Occupancy for the Building (except
\nto the extent that such violation is attributable to Landlord’s failure to
\ncomply with its obligations under Section 2.02(a) above). Tenant shall not at
\nany time use or occupy the Premises or the Building, or suffer or permit anyone
\nto use or occupy the Premises, in any manner, or do anything in the Premises or
\nthe Building, or suffer or permit anything to be done in, brought into or kept
\non the Premises, which (a) impairs the proper and economic maintenance,
\noperation and repair of the Building and\/or its equipment, facilities or systems
\n(except to the extent that such impairment arises out of the use of the Premises
\nfor the Primary Use in accordance with the provisions of this lease), (b)
\nconstitutes a nuisance, public or private, (c) makes unobtainable from reputable
\ninsurance companies authorized to do business in New York State all risk
\nproperty insurance, or liability, elevator, boiler or other insurance at
\nstandard rates, or (d) discharges objectionable fumes, vapors or odors into the
\nBuilding’s flues or vents or otherwise, except to the extent such fumes, vapors
\nor odors are discharged into flues or vents designed for such purposes and which
\nTenant, pursuant to the terms of this lease, is permitted to use.<\/p>\n
2.04. Tenant shall not use, or suffer or permit anyone to use,
\nthe Premises or any part thereof, by or for (i) an agency, department or bureau
\nof the United States Government, (ii) any state or municipality within the
\nUnited States or any foreign government, or any political subdivision of any of
\nthem, (iii) an employment or travel agency (other than an executive search firm
\nand other than an employment or travel agency primarily serving Tenant’s
\nemployees), (iv) any charitable or religious organization or union (except that,
\nso long as Original Tenant is in occupancy of more than one-half (1\/2) of the
\nrentable area of the Premises, Original Tenant may sublease portions of the
\nPremises to one or more Qualified Charities (as hereinafter defined), provided,
\nthat each such sublease shall be permitted under Article 7, no such sublease
\nshall provide for any sublease rent or other consideration to be paid to Tenant,
\nand that all such subleases, in the aggregate, do not demise an area greater
\nthan 21,500 rentable square feet), (v) a school or classroom (it being agreed
\nthat this clause shall not prohibit Tenant from using discrete portions of the
\nPremises for training, lectures or other classroom purposes for Tenant’s
\nemployees and\/or customers in connection with Tenant’s business, it being
\nunderstood that all such uses shall be considered Secondary Uses), (vi) medical
\nor psychiatric offices (it being agreed that this clause shall not prohibit
\nTenant from employing doctors and\/or nurses at the Premises for Tenant’s
\nemployees), (vii) conduct of an auction (other than in the ordinary course of
\nTenant’s business), (viii) gambling activities, (ix) the conduct of obscene,
\npornographic or similarly disreputable activities, (x) an automated teller
\nmachine or similar facility (except that Tenant, during any period that there is
\nno Qualified ATM (as hereinafter defined) located on the Real Property, shall
\nhave the right to allow an automated teller machine or similar facility to be
\nlocated in the Premises for use solely by Tenant’s employees, provided that the
\nsame is removed promptly after the end of any such period), (xi) a restaurant
\nand\/or bar and\/or the sale of<\/p>\n
-5-
\n 10
\nconfectionery and\/or soda and\/or beverages and\/or sandwiches and\/or ice cream
\nand\/or baked goods (the foregoing shall not prohibit the use of portions of the
\nPremises as kitchenette, pantry or vending machine areas pursuant to Section
\n2.01(i) or for the Secondary Uses described in Section 2.01(ii)(y) hereof),
\n(xii) the business of photographic reproductions and\/or offset printing (except
\nthat Tenant may use portions of the Premises for photographic reproductions
\nand\/or offset printing in connection with, either directly or indirectly, its
\nown business and\/or activities), (xiii) the retail offices or the retail
\nactivities of a bank, trust company, safe deposit business, savings and loan
\nassociation, or loan company, (xiv) the retail sale of traveler’s checks or
\nforeign exchange, or (xv) a retail stock brokerage office or for retail stock
\nbrokerage purposes (except that Original Tenant and its Affiliates may use
\nportions of the Premises as a retail stock brokerage office or for retail stock
\nbrokerage purposes, provided, that at no time shall the portions of the Premises
\nso used exceed, in the aggregate, 43,000 rentable square feet). For purposes of
\nthis Section 2.04, (I) the term “QUALIFIED CHARITY” shall mean any charitable
\norganization (x) which has no political, religious or union affiliation (or
\nwhich has a religious affiliation, but no religious purpose), and (y) with which
\neither Original Tenant or one or more of the partners or principals of Original
\nTenant are actively involved, (II) the term “QUALIFIED ATM” shall mean any
\nautomated teller machine or similar facility operated and maintained on the Real
\nProperty by Landlord or by any person authorized by Landlord, and which is
\navailable for use by Tenant’s employees, and (III) the term “RETAIL” shall refer
\nto a business whose primary patronage are customers visiting its offices in
\nperson.<\/p>\n
ARTICLE 3<\/p>\n
Escalations<\/p>\n
3.01. The terms defined below shall for the purposes of this
\nlease have the meanings herein specified:<\/p>\n
(a) “OPERATING STATEMENT” shall mean, with
\nrespect to any Operating Year, a document containing (i) a reasonably itemized
\nstatement of Operating Expenses for such Operating Year prepared by an
\nindependent certified public accountant, and (ii) with respect to any Operating
\nYear after the Base Operating Year, a statement, in reasonable detail, of the
\nOperating Payment payable by Tenant for such Operating Year.<\/p>\n
(b) “TAX STATEMENT” shall mean a document
\nsetting forth, in reasonable detail, the Tax Payment payable by Tenant for a
\nspecified Tax Year pursuant to this Article 3.<\/p>\n
(c) “OPERATING EXPENSES” shall mean, without
\nduplication, all expenses paid or incurred by, or on behalf of, Landlord or any
\nother Condominium Party (whether directly or indirectly by way of reimbursement
\nthrough common charges or otherwise) in respect of the repair, replacement,
\nmaintenance, operation and\/or security of the Real Property (as hereinafter
\ndefined), determined on an accrual basis and otherwise in accordance with
\ngenerally accepted accounting principles (except to the extent that any of the
\nfollowing provisions of this Section 3.01(c) are inconsistent with generally
\naccepted accounting principles), including, without limitation, the following:<\/p>\n
(A) salaries, wages, medical, surgical, insurance
\n(including, without limitation, group life and disability insurance), union and
\ngeneral welfare benefits, pension payments, severance payments, sick day
\npayments and other fringe benefits of, and payroll taxes, worker’s compensation,
\nuniforms and similar related expenses (whether direct or<\/p>\n
-6-
\n 11
\nindirect) for, employees engaged in such repair, replacement, maintenance,
\noperation and\/or security (all of the foregoing being herein called “LABOR
\nCOSTS”); provided, however, that if any such employees are not engaged
\nexclusively in such repair, replacement, maintenance, operation and\/or security,
\nthen the Labor Costs of or for such employees shall be included in Operating
\nExpenses on a pro-rated basis, based upon the proportion of such employees’
\ntotal work time that is spent engaged in such repair, replacement, maintenance,
\noperation and\/or security;<\/p>\n
(B) the cost of fuel, gas, steam,
\nelectricity, heat, ventilation, air-conditioning and chilled or condenser water,
\nwater, sewer and other utilities, together with any taxes and surcharges on, and
\nfees paid to third parties in connection with the calculation and billing of,
\nsuch utilities;<\/p>\n
(C) the cost of painting and\/or decorating
\nall areas of the Real Property, excluding, however, any leasable areas of the
\nBuilding (the phrase “LEASABLE AREAS” of the Building shall, at any time, mean
\nall areas of the Building that are then leased or available for lease to
\ntenants, whether or not the same are then being marketed, and shall include any
\nspace occupied or held for occupancy by Landlord or any Affiliate of Landlord,
\nother than as Building Offices (as hereinafter defined));<\/p>\n
(D) the cost of casualty, liability,
\nfidelity, rent and all other insurance regarding the Real Property and the
\nrepair, replacement, maintenance, operation and\/or security thereof, to the
\nextent the such types of insurance are customarily carried in respect of Similar
\nBuildings (as defined in Article 31 hereof);<\/p>\n
(E) the cost of all supplies, tools,
\nmaterials and equipment, whether by purchase or rental, used in the repair,
\nreplacement, maintenance, operation and\/or security of the Real Property, and
\nany sales and other taxes thereon;<\/p>\n
(F) all office expenses, such as telephone,
\nutility, stationery and similar expenses incurred in connection with any
\nBuilding office or other premises in the Real Property utilized by employees
\nand\/or contractors engaged in the repair, replacement, maintenance, operation
\nand\/or security of the Real Property (collectively, “BUILDING OFFICES”) (it
\nbeing agreed that Operating Expenses shall not include the rental value of any
\nBuilding Offices);<\/p>\n
(G) the cost of cleaning, janitorial and
\nsecurity services, including, without limitation, glass cleaning, snow and ice
\nremoval and garbage and waste collection and\/or disposal;<\/p>\n
(H) the cost of maintaining all existing
\ninterior and exterior landscaping, but excluding the initial cost of any
\nadditional landscaping;<\/p>\n
(I) the cost of alterations, additions,
\nimprovements, replacements and repairs made with respect to the Real Property
\nand of tools and equipment acquired for use in the operation, maintenance or
\nrepair of the Real Property; provided, however, that (i) no Capital Costs (as
\nhereinafter defined) incurred in or prior to the Base Operating Year shall be
\nincluded in Operating Expenses for the year of incurrence or any subsequent
\nyear, and (ii) Capital Costs incurred subsequent to the Base Operating Year
\nshall be included in Operating Expenses only:<\/p>\n
(1) if, and to the extent that, the
\n alteration, addition, improvement, replacement, repair,<\/p>\n
-7-
\n 12
\n equipment or tool in question (a) is required to be made by a
\n Subsequent Legal Requirement (as hereinafter defined) (it being agreed
\n that an alteration, addition, improvement, replacement, repair,
\n equipment or tool shall not be deemed required to be made by a
\n Subsequent Legal Requirement to the extent that such alteration,
\n addition, improvement, replacement, repair, equipment or tool is also
\n required to be made by an Existing Legal Requirement (as hereinafter
\n defined)), and (b) if made to any leasable area of the Building (or to
\n the passenger elevator lobby or any common corridors on any
\n multi-tenant floor of the Building), would not, if such leasable area
\n (or such lobby or corridors on a multi-tenant floor, as the case may
\n be), were demised by this lease, be the responsibility of Tenant under
\n Article 8 hereof; and, in such event, for each month during the useful
\n life of the alteration, addition, improvement, replacement, repair,
\n equipment or tool in question there shall be included in Operating
\n Expenses an amount equal to the combined constant monthly principal and
\n interest payment which would be payable on a loan (i) having an
\n original principal amount equal to the Capital Costs of such
\n alteration, addition, improvement, replacement, repair, equipment or
\n tool, (ii) bearing interest at the Capital Cost Rate (as hereinafter
\n defined) applicable to such Capital Costs, and (iii) providing for a
\n combined constant monthly payment of principal and interest sufficient
\n to fully-liquidate such loan over a period of time equal in length to
\n the length of such useful life (except, that (x) if such useful life
\n shall not commence on the first day of a month, then the amount so
\n included in the month in which such useful life shall commence shall be
\n computed on a prorata basis, and (y) if such useful life shall not end
\n on the last day of a month, then the amount so included in the month in
\n which such useful life shall end shall be computed on a prorata basis);
\n or<\/p>\n
(2) if the alteration, addition,
\n improvement, replacement, repair, equipment or tool in question is such
\n that, at the time made, Landlord reasonably estimates that the same
\n will result in an avoidance of or a savings in Operating Expenses over
\n the useful life of such alteration, addition, improvement, replacement,
\n repair, equipment or tool, then (a) Landlord shall prepare a written
\n schedule setting forth Landlord’s reasonable estimate of the Operating
\n Expenses avoided or saved for each Operating Year during the Cost
\n Savings Period for such alteration, addition, improvement, replacement,
\n repair, equipment or tool as a result of the same, and shall make the
\n same a part of the Operating Expense Records (or otherwise made
\n available to Tenant) on or prior to the date that Landlord delivers the
\n first Operating Statement reflecting Operating Expenses pursuant to
\n this Section 3.01(c)(I)(2) resulting from such alteration, addition,
\n improvement, replacement, repair, equipment or tool (which written
\n schedule, in respect of any alteration, addition, improvement,
\n replacement, repair, equipment or tool, is herein called the “ESTIMATED
\n COST SAVINGS SCHEDULE” and Landlord’s estimate of the Operating
\n Expenses so avoided or saved for each Operating Year as set forth on
\n any such schedule is herein called an “ESTIMATED ANNUAL SAVINGS
\n AMOUNT”), and (b) there shall be included in Operating Expenses for
\n each month during the useful life of such alteration, addition,
\n improvement, replacement, repair, equipment or tool an amount equal to
\n the combined constant monthly principal and interest payment which
\n would be payable on a loan (i) having an original principal amount
\n equal to the Capital Costs of such alteration, addition, improvement,
\n replacement, repair, equipment or tool, (ii) bearing interest at the
\n Capital Cost Rate (as hereinafter defined) applicable to such Capital
\n Costs, and (iii) providing for a combined constant monthly<\/p>\n
-8-
\n 13
\n payment of principal and interest sufficient to fully-liquidate such
\n loan over a period of time equal in length to the length of such useful
\n life (except, that (x) if such useful life shall not commence on the
\n first day of a month, then the amount so included in the month in which
\n such useful life shall commence shall be computed on a prorata basis,
\n and (y) if such useful life shall not end on the last day of a month,
\n then the amount so included in the month in which such useful life
\n shall end shall be computed on a prorata basis); provided, however,
\n that if, with respect to any alteration, addition, improvement,
\n replacement, repair, equipment or tool, (X) the present value of all
\n the monthly amounts which, absent this proviso, would be included in
\n Operating Expenses during the Cost Savings Period for such alteration,
\n addition, improvement, replacement, repair, equipment or tool pursuant
\n to the foregoing provisions of this Section 3.01(c)(I)(2) (which
\n present value shall be determined as of the first day of the such Cost
\n Savings Period, using a discount rate of 10%), exceeds (Y) the present
\n value of all the Estimated Annual Savings Amounts on the Estimated Cost
\n Savings Schedule in respect of such alteration, addition, improvement,
\n replacement, repair, equipment or tool (which present value shall be
\n determined as of the first day of such Cost Savings Period, using a
\n discount rate of 10%, and assuming that the Estimated Annual Savings
\n Amount for any Operating Year shall be payable in equal monthly
\n installments during such Operating Year, or during the portion thereof
\n within the Cost Savings Period) (such excess, in respect of any
\n alteration, addition, improvement, replacement, repair, equipment or
\n tool, being herein called the “SECTION 3.01(c)(I)(2) EXCESS”), then (i)
\n such monthly amounts referred to in subclause (X) above shall not be
\n included in Operating Expenses as hereinabove provided pursuant to this
\n Section 3.01(c)(I)(2), and (ii) in lieu thereof, the following
\n provisions shall apply:<\/p>\n
(A) for each Operating Year
\n during the Cost Savings Period for the alteration, addition,
\n improvement, replacement, repair, equipment or tool in
\n question, there shall be included in Operating Expenses an
\n amount equal to the Estimated Annual Savings Amount for such
\n Operating Year as set forth on the Estimated Cost Savings
\n Schedule in respect of such alteration, addition, improvement,
\n replacement, repair, equipment or tool; and<\/p>\n
(B) if the Cost Savings
\n Period shall end prior to the Expiration Date, then, for each
\n Operating Year after the Cost Savings Period for the
\n alteration, addition, improvement, replacement, repair,
\n equipment or tool in question, there shall be included in
\n Operating Expenses an amount, if any, equal to the lesser of
\n (i) the excess, if any, of (x) the Section 3.01(c)(I)(2)
\n Excess in respect of such alteration, addition, improvement,
\n replacement, repair, equipment or tool, over (y) all amounts
\n included in Operating Expenses for prior Operating Years
\n pursuant to this subclause (B) in respect of such alteration,
\n addition, improvement, replacement, repair, equipment or tool,
\n and (ii) Landlord’s reasonable estimate of the Operating
\n Expenses avoided or saved for such Operating Year as a result
\n of such alteration, addition, improvement, replacement,
\n repair, equipment or tool;<\/p>\n
it being agreed that, as used herein, (A) the term “CAPITAL COSTS” shall mean
\nthe costs of any alteration, addition, improvement, replacement, repair,
\nequipment or tool the costs of which, under generally accepted accounting
\nprinciples consistently applied, are required to be capitalized (it being
\nunderstood that if, under generally accepted accounting<\/p>\n
-9-
\n 14
\nprinciples, the issue of whether, or the extent to which, any such costs are
\nrequired to be capitalized shall depend upon whether such costs are deemed
\n“material”, then the issue of whether such costs are deemed “material” shall be
\ndetermined assuming the Real Property were the sole asset of Landlord), (B) the
\nterm “SUBSEQUENT LEGAL REQUIREMENT” shall mean (i) any statute or governmental
\nrule or regulation in implementation thereof which is adopted after the date
\nhereof or (ii) any amendment to or modification of a statute or governmental
\nrule or regulation in implementation thereof, which amendment or modification is
\nadopted after the date hereof (and, without limiting the generality of the
\nforegoing, such term shall exclude any Existing Legal Requirement taking effect
\nafter the date hereof), (C) the term “EXISTING LEGAL REQUIREMENT” shall mean any
\nstatute or governmental rule or regulation in implementation thereof which is
\nadopted on or prior to the date hereof or (ii) any amendment to or modification
\nof a statute or governmental rule or regulation in implementation thereof, which
\namendment or modification is adopted prior to the date hereof, (D) the term
\n“USEFUL LIFE”, of any alteration, addition, improvement, replacement, repair,
\nequipment or tool, shall mean the useful life thereof determined in accordance
\nwith generally accepted accounting principles, and (E) the term “COST SAVINGS
\nPERIOD”, for any alteration, addition, improvement, replacement, repair,
\nequipment or tool, shall mean the period of the useful life thereof, provided,
\nhowever, that such period, in all events, shall end on the Then Current
\nExpiration Date (as of the date that Landlord shall have made the Estimated Cost
\nSavings Schedule, in respect of such alteration, addition, improvement,
\nreplacement, repair, equipment or tool, a part of the Operating Expense
\nRecords);<\/p>\n
(J) management fees; it being agreed that
\n(i) for the Base Operating Year, the amount included in Operating Expenses
\npursuant to this Section 3.01(c)(J) shall be conclusively deemed to be $480,000
\n(and there shall not be included in Operating Expenses for the Base Operating
\nYear any actual management fees or any cost in respect of services customarily
\nprovided by a managing agent as part of its standard and customary management
\nfee, i.e., without separate or additional charge, such as, by way of example,
\nbookkeeping), and (ii) for any subsequent Operating Year, or portion thereof,
\nduring which no managing agent is employed in respect of the Real Property, the
\namount included in Operating Expenses pursuant to this Section 3.01(c)(J) shall
\nbe an amount equal to the then standard and customary management fee for a
\nSimilar Building (and there shall not be included in Operating Expenses for such
\nOperating Year, or, as the case may be, the applicable portion thereof, any cost
\nin respect of services customarily provided by a managing agent as part of its
\nstandard and customary management fee, i.e., without separate or additional
\ncharge, such as, by way of example, bookkeeping);<\/p>\n
(K) all reasonable costs and expenses of
\nlegal, accounting and other professional services incurred with respect to the
\nrepair, replacement, maintenance, operation and\/or security of the Real
\nProperty;<\/p>\n
(L) vault taxes, sewer rents, water frontage
\ncharges; and<\/p>\n
(M) assessments, common charges or the like
\nimposed by the Condominium Board to the extent that the same are imposed to pay
\nfor (or as reimbursement for) costs which constitute Operating Expenses.<\/p>\n
Notwithstanding anything to the contrary
\ncontained in the foregoing provisions of this subsection (c), the term
\n“OPERATING EXPENSES”, as used and defined under this subsection (c), shall not
\ninclude the following items:<\/p>\n
-10-
\n 15
\n (1) depreciation and amortization (except as provided above in
\nthis subsection (c));<\/p>\n
(2) interest on and amortization of debts (except as provided
\nabove in this subsection (c));<\/p>\n
(3) the cost of tenant improvements, installations and
\ndecorations made in connection with preparing space for tenant(s) or renovating
\nspace for an existing tenant, including any permit, license and inspection fees
\nand any contribution by Landlord to the cost of tenant improvements,
\ninstallations and decorations;<\/p>\n
(4) leasing and brokerage commissions and similar fees;<\/p>\n
(5) financing or refinancing costs;<\/p>\n
(6) the cost of any work or service (or level or amount
\nthereof) provided to any tenant(s) of the Building (including Tenant) which is
\nin excess of the work or service (or level or amount thereof) which Landlord is
\nrequired by this lease to furnish to Tenant without separate or additional
\ncharge (including without limitation the costs of all overtime HVAC,
\nsupplemental HVAC, supplemental chilled water, supplemental condenser water,
\nspecial or supplemental cleaning, and overtime freight elevator service); it
\nbeing agreed, however, that, without limitation, none of the following costs
\nshall be excluded from Operating Expenses by reason of this clause (6): (i) the
\ncosts of operating, maintaining, repairing and replacing any freight elevator
\ndedicated to one or more other tenants of the Building (other than the costs of
\noperating such freight elevator during overtime hours); and (ii) the costs of
\noperating, maintaining, repairing and replacing any passenger elevators in the
\nBuilding (except to the extent such costs are attributable to providing one or
\nmore other tenants of the Building with a greater level of passenger elevator
\nservice (as to number of elevators, determined on a proportional rentable square
\nfoot basis, or hours of operation) than that provided to Tenant under this lease
\nwithout a separate or additional charge);<\/p>\n
(7) the cost of any electricity consumed in the Premises or
\nany other leasable areas of the Building (together with any taxes and surcharges
\non, and fees paid to third parties in connection with the calculation and
\nbilling of such electricity);<\/p>\n
(8) Taxes, as well as franchise, gains, transfer, inheritance,
\nestate and income taxes, excess profit taxes and capital stock taxes;<\/p>\n
(9) interest, fines or penalties resulting from the violation
\nby Landlord or any tenant of the Building of any laws or requirements of public
\nauthorities;<\/p>\n
(10) costs and expenses incurred in connection with procuring
\ntenants, including lease concessions, landlord contributions and allowances,
\nlease takeover or rental assumption obligations;<\/p>\n
(11) costs resulting from any judgment, settlement or
\narbitration award against Landlord and attorneys’ fees and disbursements and
\nother costs incurred in connection with the defense of any claim or action
\nagainst Landlord; provided, however, that any portion of such costs, fees and
\ndisbursements (other than any thereof which were awarded as compensation for
\nbodily or personal injury) which would otherwise be included in and not excluded
\nfrom Operating Expenses pursuant to this Section 3.01(c), irrespective of such
\nliability, shall, notwithstanding the foregoing, constitute an Operating
\nExpense;<\/p>\n
-11-
\n 16
\n (12) Labor Costs for personnel above the grade of building
\nmanager;<\/p>\n
(13) rent and all other amounts payable under any ground,
\noverriding or underlying lease of all or any portion of the Real Property;
\nprovided, however, that any sums paid under any such lease in respect of
\nexpenses which would otherwise be included in and not excluded from Operating
\nExpenses pursuant to this Section 3.01(c) shall not be excluded from Operating
\nExpenses even though denominated as “rent” under any such lease;<\/p>\n
(14) costs incurred for the repair and restoration of the
\nBuilding the need for which results from a casualty; provided, however, that
\nOperating Expenses shall include such costs to the extent of any commercially
\nreasonable deductible under the applicable insurance policy(ies), it being
\nagreed that (i) the costs so included in Operating Expenses shall be attributed
\nto the item(s) of the Landlord Restoration Work (as hereinafter defined) which
\nhave the longest useful life(s) (such useful life(s) being determined in
\naccordance with generally accepted accounting principles), and (ii) in respect
\nof each such item, for each month of the useful life of such item (as so
\ndetermined) there shall be included in Operating Expenses an amount equal to the
\ncombined constant monthly principal and interest payment which would be payable
\non a loan (i) having an original principal amount equal to the cost of such
\nitem, (ii) bearing interest at the Capital Cost Rate (as hereinafter defined)
\napplicable to such cost, and (iii) providing for a combined constant monthly
\npayment of principal and interest sufficient to fully-liquidate such loan over a
\nperiod of time equal in length to the length of such useful life (except, that
\n(x) if such useful life shall not commence on the first day of a month, the
\namount so included in the month in which such useful life shall commence shall
\nbe computed on a prorata basis, and (y) if such useful life shall not end on the
\nlast day of a month, the amount so included in the month in which such useful
\nlife shall end shall be computed on a prorata basis);<\/p>\n
(15) the excess, if any, of (i) any sums paid or incurred
\nbetween affiliated parties for goods, services or other items the costs of which
\nare includable in Operating Expenses over (ii) the sums which would have been
\npaid or incurred therefor if the same had been furnished by unaffiliated third
\nparties on a competitive basis;<\/p>\n
(16) any compensation paid to clerks, attendants or other
\npersons in commercial concessions;<\/p>\n
(17) advertising and promotional expenditures;<\/p>\n
(18) all costs which under generally accepted accounting
\nprinciples consistently applied are required to be capitalized (it being
\nunderstood that if, under generally accepted accounting principles, the issue of
\nwhether, or the extent to which, any such costs are required to be capitalized
\nshall depend upon whether such costs are deemed “material”, then the issue of
\nwhether such costs are deemed “material” shall be determined assuming the Real
\nProperty were the sole asset of Landlord), except for (i) Capital Costs
\nincludable in Operating Expenses pursuant to Section 3.01(c)(I) above, (ii)
\ncosts includable in Operating Expenses pursuant to Section 3.01(c)(14) above,
\nand (iii) costs which under generally accepted accounting principles
\nconsistently applied would qualify as deferred expenses (e.g., prepaid charges)
\n(which deferred expenses shall be includable as and when chargeable in
\naccordance with generally accepted accounting principles consistently applied);
\nexcept, in any case pursuant to this clause (18), if and to the extent<\/p>\n
-12-
\n 17
\notherwise excluded from Operating Expenses by any other provision of this
\nSection 3.01(c);<\/p>\n
(19) any charges or penalties resulting from a late payment of
\nany item of Operating Expenses;<\/p>\n
(20) costs incurred in the removal, encapsulation, handling or
\nother treatment of asbestos;<\/p>\n
(21) the costs of purchasing sculptures, paintings and other
\nworks of fine art located within or outside the Building;<\/p>\n
(22) any costs related to the Retail Part (as hereinafter
\ndefined) of the Building (provided, however, that Operating Expenses shall
\ninclude costs incurred in connection with the portions of the Real Property
\n(other than leasable areas of the Building) that serve both the Retail Part and
\nother parts of the Building to the extent the same are otherwise includable in
\nOperating Expenses);<\/p>\n
(23) costs incurred for the repair and restoration of the
\nBuilding the need for which results from a condemnation;<\/p>\n
(24) costs incurred with respect to a sale of all or any
\nportion of the Real Property;<\/p>\n
(25) legal fees, expenses and disbursements relating (A) to
\nthe enforcement of leases, recovery of possession, collection of rent, (B) to
\ndisputes with tenants or prospective tenants of the Building or real estate
\nbrokers, or (C) to disputes with purchasers or mortgagees or underlying lessors
\nof the Real Property, (C) to negotiations of leases, contracts of sale or
\nmortgages or sale or finance documents, or (D) to the defense of any claims for
\nbodily or personal injury or for any other damages the payment of which would
\nnot constitute Operating Expenses;<\/p>\n
(26) costs incurred in the operation and maintenance of the
\nBuilding’s Parking Garage (as hereinafter defined);<\/p>\n
(27) costs relating to withdrawal liability or unfunded
\npension liability under the Multi-Employer Pension Plan Act or similar law;<\/p>\n
(28) the cost of installing, operating and maintaining any
\nspecialty facility, such as an observatory, broadcasting facilities, luncheon
\nclub, athletic or recreational club, cafeteria or dining facility; provided,
\nhowever, that Operating Expenses shall include costs incurred in connection with
\nthe portions of the Real Property (other than the leasable areas of the
\nBuilding) that serve both any such specialty facility and other parts of the
\nBuilding to the extent the same are otherwise includable in Operating Expenses;<\/p>\n
(29) Landlord’s general overhead not related to the Building;
\nand<\/p>\n
(30) assessments, common charges or the like imposed by the
\nCondominium Board to the extent that the same are imposed to pay for (or as
\nreimbursement for) costs which do not constitute Operating Expenses (it being
\nagreed that any such assessments, common charges or the like which are paid to
\nthe Condominium Board or otherwise to establish “reserves” for future
\nexpenditures shall not be included in Operating Expenses at the time so paid,
\nbut cost paid from any such reserves shall be Operating Expenses, when incurred,
\nto the extent such costs constitute Operating Expenses).<\/p>\n
-13-
\n 18
\n As used in this Section 3.01(c) the term
\n“tenant” shall include Landlord, and any Affiliate of Landlord, as occupant of
\nany leasable space in the Building.<\/p>\n
If during any relevant period (i) any leasable
\narea of the Building shall be vacant or unoccupied, and\/or (ii) the tenant or
\noccupant of any space in the Building shall undertake to perform work or
\nservices therein, the cost of which, if the same had been performed by or on
\nbehalf of Landlord, would have been included in Operating Expenses, then, in any
\nsuch event(s), the Operating Expenses for such period shall be adjusted to
\nreflect the Operating Expenses that would have been paid or incurred if
\none-hundred (100%) percent of the leasable areas of the Building had been
\noccupied or if the costs of all such work or services were paid or incurred as
\nOperating Expenses, as the case may be.<\/p>\n
(d) “OPERATING YEAR” shall mean each calendar
\nyear in which occurs any part of the term of this lease.<\/p>\n
(e) “BASE OPERATING YEAR” shall mean the
\ncalendar year commencing on January 1, 1994.<\/p>\n
(f) “BASE OPERATING AMOUNT” shall mean the
\nOperating Expenses for the Base Operating Year.<\/p>\n
(g) “CAPITAL COST RATE”, in respect of any
\ncosts, shall mean a per annum rate equal to the Base Rate (as defined in Article
\n31 hereof) in effect as of December 31st of the Operating Year in which such
\ncosts are incurred.<\/p>\n
(h) “REAL PROPERTY” shall mean, collectively,
\nthe Building and all fixtures, machinery and equipment installed therein or used
\nin the operation thereof (including, without limitation, the entire Base
\nBuilding (as hereinafter defined) and all improvements and betterments of the
\nBuilding’s tenants (whether or not owned by Landlord)), including, but not
\nlimited to, all cables, fans, pumps, boilers, generators, heating and cooling
\nequipment, wiring and electrical fixtures and metering, control and distribution
\nequipment, component parts of the HVAC, electrical, plumbing, elevator and any
\nlife or property protection systems (including, without limitation, sprinkler
\nsystems), window washing equipment and snow removal equipment, the Land, the
\ncurbs, sidewalks and plazas on the Land, and all easements and other
\nappurtenances to the Building and\/or the Land. For any Tax Year that the Real
\nProperty shall include more than a single tax lot, the “Real Property”, for
\npurposes of this Article 3, shall be deemed to include, and be comprised of, all
\nof such tax lots, and, without limiting the generality thereof, for so long as
\nthe Condominium shall be in effect, the “Real Property”, for purposes of this
\nArticle 3, shall be deemed to include, and be comprised of, all of the Units and
\nthe common interests appurtenant thereto (including without limitation the IDA
\nUnits) and all common interests appurtenant thereto.<\/p>\n
(i) “IDA UNITS” shall mean, at any time, the
\nUnits in which title is then held by the IDA; the term “IDA” shall mean the New
\nYork City Industrial Development Agency, its successors and assigns.<\/p>\n
(j) “TAXES”, with respect to the Real Property
\n(or any Unit(s) or other tax lot(s) comprising the same), shall mean all (A) the
\nreal estate taxes and assessments (special or otherwise), rates, charges and any
\nother levies, impositions or charges of a similar or dissimilar nature, whether
\ngeneral, special, ordinary or extraordinary, foreseen or unforeseen, which may
\nbe levied, assessed or imposed upon or with respect to the Real Property (or any
\nUnit(s) or other tax lot(s) comprising the same) at any time by any federal,
\nstate, municipal or other governments or governmental bodies or authorities, and
\n(B)<\/p>\n
-14-
\n 19
\nexpenses incurred in contesting taxes or assessments and\/or the assessed value
\nof the Real Property (or any Unit(s) or other tax lot(s) comprising the same)
\nwhich expenses shall be allocated to the Tax Year to which such expenses relate.
\nIf at any time during the term of this lease the methods of taxation prevailing
\non the date hereof shall be altered so that in lieu of, or as an addition to or
\nas a substitute for, the whole or any part of such real estate taxes or
\nassessments (special or otherwise) now imposed on real estate, there shall be
\nlevied, assessed or imposed (x) a tax, assessment, levy, imposition, license fee
\nor charge wholly or partially as a capital levy or otherwise on the rents
\nreceived therefrom, or (y) a tax, charge or assessment, special or otherwise,
\nintended to serve as a real estate tax or to fulfill substantially the same
\nfunction as existing real estate taxes, then the same shall be deemed to be
\nincluded within the term “Taxes” for the purposes hereof; provided, however,
\nthat, for purposes of such inclusion, the amounts described in clause (x) above
\nshall be computed as if Landlord owned the entire Real Property (or the
\napplicable Unit(s) or other tax lot(s)) and the same was the only real estate
\nowned by Landlord. For the purposes hereof, assessments included within Taxes
\nshall, regardless of how actually paid, be deemed to be paid in the maximum
\nnumber of installments permitted by the taxing authority imposing any such
\nassessment, together with interest calculated at a rate equal to the rate then
\nbeing charged by the taxing authority imposing such assessment. If Landlord
\nshall receive any refund of Taxes, then Taxes shall be computed net of (i.e. by
\ndeducting) such refund; for purposes of this lease, a “refund” of Taxes shall
\ninclude the interest, if any, which is paid by the taxing authority to Landlord
\nin respect of such refund.<\/p>\n
(k) “REAL PROPERTY TAXES”, for any Tax Year,
\nshall mean the sum of (A) all Taxes payable with respect to the Real Property
\nfor such Tax Year, plus (B) all Taxes that would have been payable with respect
\nto the IDA Units for such Tax Year, but for any exemption then in effect
\ntherefor (but which, in fact, are not payable as a result of such exemption).<\/p>\n
(l) (1) “PSI’S GENERATOR TAXES” shall mean
\neither (i) for any Tax Year that PSI’s Generator constitutes a separate tax lot
\nfor purposes of Taxes, Taxes payable with respect to such separate tax lot for
\nsuch Tax Year, and (ii) for any Tax Year that PSI’s Generator does not
\nconstitute a separate tax lot for purposes of Taxes, the portion of Taxes
\npayable with respect to the Real Property which is attributable to PSI’s
\nGenerator; the term “PSI’S GENERATOR” shall mean those certain generators
\nheretofore installed and currently maintained in the Building by Prudential
\nSecurities Incorporated (herein, together with its successors and assigns,
\ncalled “PSI”), inclusive of all fuel tanks, fuel pumps, fuel pipes and
\nelectrical conduits ancillary thereto, and together with (x) any successor
\ngenerator(s) and\/or ancillary equipment thereto, and (y) any of PSI’s
\nsupplements or additions to such generator and\/or such ancillary equipment (by
\nway of additional generator units and\/or ancillary equipment or otherwise).<\/p>\n
(2) “TENANT’S GENERATOR TAXES” shall
\nmean either (i) for any Tax Year that Tenant’s Generator constitutes a separate
\ntax lot for purposes of Taxes, Taxes payable with respect to such separate tax
\nlot for such Tax Year, and (ii) for any Tax Year that Tenant’s Generator does
\nnot constitute a separate tax lot for purposes of Taxes, the portion of Taxes
\npayable with respect to the Real Property which is attributable to Tenant’s
\nGenerator; the term “Tenant’s Generator” being defined in Article 41 hereof.<\/p>\n
(3) “GENERATOR TAXES” shall mean
\nTenant’s Generator Taxes and\/or PSI’s Generator Taxes; the term “GENERATOR”
\nshall mean Tenant’s Generator and\/or PSI’s Generator.<\/p>\n
-15-
\n 20
\n (m) “ADJUSTED REAL PROPERTY TAXES”, for any Tax
\nYear, shall mean the excess of (i) Real Property Taxes for such Tax Year
\n(inclusive of PSI’s Generator Taxes and Tenant’s Generator Taxes for such Tax
\nYear), over (ii) the sum of (x) PSI’s Generator Taxes for such Tax Year, plus
\n(y) Tenant’s Generator Taxes for such Tax Year.<\/p>\n
(n) “TAX YEAR” shall mean each period of twelve
\n(12) months, commencing on the first day of July of each such period, in which
\noccurs any part of the term of this lease (or the Applicable Period (as
\nhereinafter defined)), or such other period of twelve (12) months occurring
\nduring the term of this lease (or the Applicable Period) as hereafter may be
\nduly adopted as the fiscal year for real estate tax purposes of the City of New
\nYork.<\/p>\n
(o) “BASE TAX AMOUNT” shall mean the sum of (i)
\none-half (1\/2) of Adjusted Real Property Taxes for the Tax Year commencing on
\nJuly 1, 1994 and ending on June 30, 1995, plus (ii) one-half (1\/2) of Adjusted
\nReal Property Taxes for the Tax Year commencing on July 1, 1995 and ending on
\nJune 30, 1996.<\/p>\n
(p) “TENANT’S OPERATING SHARE”, during any
\nperiod, shall mean a fraction (expressed as a percentage rounded to four decimal
\nplaces), (i) the numerator of which is the then aggregate rentable area of the
\nPremises, and (ii) the denominator of which is equal to Tenant’s Operating Share
\nDenominator (as defined in Section 3.06 below). As of the date hereof, Tenant’s
\nOperating Share is 16.3523%. If, for any Operating Year, Tenant’s Operating
\nShare shall not remain a constant percentage throughout the entirety of such
\nOperating Year, then Tenant’s Operating Share for such Operating Year shall be
\nthat percentage which represents the weighted average (computed on a per diem
\nbasis) of all the percentages constituting Tenant’s Operating Share during such
\nOperating Year.<\/p>\n
(q) “TENANT’S TAX SHARE”, during any period,
\nshall mean a fraction (expressed as a percentage rounded to four decimal
\nplaces), (i) the numerator of which is the then aggregate rentable area of the
\nPremises, and (ii) the denominator of which is equal to Tenant’s Tax Share
\nDenominator (as defined in Section 3.06 below). As of the date hereof, Tenant’s
\nTax Share is 15.9961%. If, for any Tax Year, Tenant’s Tax Share shall not remain
\na constant percentage throughout the entirety of such Tax Year, then Tenant’s
\nTax Share for such Tax Year shall be that percentage which represents the
\nweighted average (computed on a per diem basis) of all the percentages
\nconstituting Tenant’s Tax Share during such Tax Year.<\/p>\n
(r) “TAX CLOSURE DATE”, for any Tax Year, shall
\nmean the date upon which all tax reduction proceedings in respect of Taxes for
\nsuch Tax Year (exclusive of any such proceedings regarding Taxes with respect to
\na Generator which, for such Tax Year, constitutes a separate tax lot) shall have
\nbeen finally resolved (or, if no such proceedings shall have been timely
\ninstituted for such Tax Year, then the date upon which the right to bring such
\nproceedings shall have lapsed).<\/p>\n
3.02. (a) Tenant, for each Tax Year (subject to the provisions
\nof Section 3.02(h) below), shall pay to Landlord as Additional Charges an amount
\n(herein called the “TAX PAYMENT”) equal to the sum of (i) Tenant’s Tax Share of
\nthe excess of (x) the Adjusted Real Property Taxes for such Tax Year, over (y)
\nthe Base Tax Amount (the portion of any Tax Payment described in this clause (i)
\nbeing herein called the “BASE COMPONENT” of such Tax Payment), plus (ii)
\nTenant’s Generator Taxes for such Tax Year (the portion of any Tax Payment
\ndescribed in this clause (ii) being herein called the “GENERATOR COMPONENT” of
\nsuch Tax Payment).<\/p>\n
-16-
\n 21
\n (b) Landlord, at anytime prior to, during, or
\nafter the end of, any Tax Year, may deliver to Tenant a Tax Statement(s) for
\nsuch Tax Year. Tenant, for each Tax Year, shall pay to Landlord the Tax Payment
\nset forth on the Tax Statement(s) for such Tax Year in the same number of
\ninstallments as Taxes are required to be paid to the City of New York for such
\nTax Year, with each such installment being due on the later to occur of (x) the
\ndate that is thirty (30) days prior to the due date of the corresponding
\ninstallment of Taxes and (y) the date that is ten (10) Business Days after the
\ndate that Tenant receives the initial Tax Statement for such Tax Year.<\/p>\n
(c) If, at any time after the delivery of the
\ninitial Tax Statement for any Tax Year, it is determined that, the Tax Payment
\nfor such Tax Year is greater or less than the amount set forth on the then most
\nrecent Tax Statement(s) (for any reason including without limitation (i) any
\nincrease in Taxes for such Tax Year, whether before, during or after such Tax
\nYear, (ii) any decrease in the Taxes for any Tax Year, whether or before, during
\nor after such Tax Year, including without limitation any such decrease resulting
\nfrom any refund of Taxes for such Tax Year, or (iii) any decrease in Taxes
\ncomprising the whole or any part of the Base Tax Amount, including without
\nlimitation any such decrease resulting from any refund of Taxes for either or
\nboth of the 1994\/95 Tax Year or the 1995\/96 Tax Year), then, in any case that
\nthe Tax Payment is greater, Landlord may, or, in any case that the Tax Payment
\nis less, Landlord shall, furnish to Tenant a revised Tax Statement(s) for such
\nTax Year. If any revised Tax Statement shall set forth a Tax Payment that is
\ngreater than that set forth on the previous Tax Statement, then Tenant shall pay
\nto Landlord such additional amount within thirty (30) days after Tenant’s
\nreceipt of such revised Tax Statement. If any revised Tax Statement shall set
\nforth a Tax Payment that is less than that set forth on the previous Tax
\nStatement, then Landlord, within thirty (30) days after Tenant’s receipt of such
\nrevised Tax Statement, shall pay to Tenant the difference between the Tax
\nPayment, as set forth on the revised Tax Statement, and the Tax Payment set
\nforth on the previous Tax Statement.<\/p>\n
(d) (1) Nothing contained in this lease shall
\nrequire the filing of any application, or the institution of any proceeding,
\nseeking a reduction in Taxes or assessed valuation. Tenant, for itself and its
\nimmediate and remote subtenants and successors in interest hereunder, hereby
\nwaives, to the extent permitted by law, any right Tenant may now or in the
\nfuture have to protest or contest any Taxes. As used herein, the phrase “PROTEST
\nOR CONTEST” of Taxes shall include the filing of any application, and the
\ninstitution, prosecution and\/or settlement of any proceeding, seeking a
\nreduction in Taxes or the assessed valuation of the Real Property or any part
\nthereof, and any other challenge of the determination of Taxes or such assessed
\nvaluation.<\/p>\n
(2) Notwithstanding the provisions of
\nSection 3.02(d)(1) above, Landlord, upon Tenant’s request received between
\nJanuary 2 and February 10 of each calendar year during the term of this lease,
\nshall, on or before February 24 of such calendar year, advise Tenant whether or
\nnot Landlord intends to file a Protest with respect to the next succeeding Tax
\nYear. A “PROTEST” shall mean such necessary administrative action(s) under
\napplicable law as shall be necessary to protest the tentative assessed valuation
\nof the Real Property. If Landlord advises Tenant that Landlord does not intend
\nto file a Protest with respect to such Tax Year, Tenant shall have the right,
\nupon notice given to Landlord on or before February 25 of such calendar year
\n(or, if February 25 is not a Business Day, then the next succeeding Business
\nDay), to require Landlord, at Tenant’s expense, to file a Protest in accordance
\nwith this Section 3.02(d)(2). If Tenant shall give such notice to Landlord,<\/p>\n
-17-
\n 22
\nLandlord, at Tenant’s expense, shall commence a Protest. Failure of Tenant to so
\nnotify Landlord as aforesaid shall be deemed a waiver of Tenant’s right to cause
\nLandlord to commence a Protest. Tenant, within thirty (30) days after demand by
\nLandlord, shall reimburse Landlord as Additional Charges for any costs and
\nexpenses incurred by Landlord in connection with any Protest filed by reason of
\nTenant’s direction. If such Protest shall result in a refund of the Taxes paid
\nfor such Tax Year, then, provided Tenant shall have paid all costs and expenses
\nrequired to be paid by Tenant in accordance with the preceding sentence and
\nTenant shall not otherwise be in monetary default under this lease beyond the
\nexpiration of any applicable notice and\/or cure period, the amount of such
\nrefund shall be paid to Tenant up to the amount of costs and expenses paid by
\nTenant in connection with the prosecution of such Protest before application
\nthereof toward a refund of the tax payments for such Tax Year to tenants in the
\nBuilding (including without limitation Tenant) as may be required pursuant to
\ntheir respective leases.<\/p>\n
(e) For any Tax Year, Taxes “payable” with
\nrespect to the Real Property (or any Unit(s) or other tax lot(s) comprising the
\nsame) shall be computed by and after giving effect to (i) any deferral or
\nabatement of Taxes in effect for such Tax Year, and (ii) any repayment, with
\ninterest if applicable, during such Tax Year of any Taxes deferred or abated in
\nany prior year. Without limiting the generality of the foregoing, it is
\nunderstood and agreed:<\/p>\n
(1) that Landlord has obtained, or intends to obtain,
\n benefits under Title 11, Chapter 2, Part 4 of the Administrative Code
\n of the City of New York (the “ICIP”);<\/p>\n
(2) that Tenant shall report to Landlord upon request the
\n number of workers permanently engaged in employment in the Premises,
\n the nature of each worker’s employment and the New York City residency
\n of each worker;<\/p>\n
(3) that Tenant shall provide access to the Premises by
\n employees and agents of the Department (as such term is defined in the
\n ICIP Rules and Regulations) at all reasonable times at the request of
\n Landlord (which request may be verbal); and<\/p>\n
(4) that Tenant shall not be required to pay taxes or
\n charges which become due because of the willful neglect or fraud by
\n Landlord in connection with ICIP, or otherwise relieve or indemnify
\n Landlord from any personal liability arising under the Administrative
\n Code of the City of New York, Section 11-265, except where imposition
\n of such taxes, charges or liability is occasioned by actions of Tenant
\n in violation of this lease.<\/p>\n
Landlord represents that, other than (x) the ICIP tax deferral and abatement
\nprogram(s), and (y) tax deferral and abatement programs applicable to the IDA
\nUnits resulting from, or incident to, the IDA’s ownership thereof or other
\nbenefit programs of the IDA, (I) the Real Property is not currently subject to
\ntax deferral or abatement program, and (II) no tax deferral or abatement program
\nto which the Real Property is currently subject or was previously subject (prior
\nto the date hereof) will hereafter require any repayment of any Taxes deferred
\nor abated in any prior year.<\/p>\n
(f) If Tenant installs Tenant’s Generator, then
\nthe following provisions shall apply:<\/p>\n
(1) Tenant, at Tenant’s expense, shall cooperate with
\nLandlord in connection with Landlord’s efforts to<\/p>\n
-18-
\n 23
\ncause Tenant’s Generator to be assigned a separate tax lot for purposes of
\nTaxes.<\/p>\n
(2) For each Tax Year that Tenant’s Generator does not
\nconstitute a separate tax lot, the following provisions shall apply:<\/p>\n
(A) Landlord, promptly after the occurrence of the Tax
\nClosure Date with respect to such Tax Year, shall furnish to Tenant a notice
\nthat the same has occurred, it being understood and agreed that (i) such notice
\nmay be given as part of a Tax Statement furnished after the Tax Closure Date,
\nand (ii) in any case where the initial Tax Statement for such Tax Year has not
\ntheretofore been furnished, such notice shall be accompanied by such initial Tax
\nStatement (the date upon which such notice is furnished by Landlord being herein
\ncalled the “TAX CLOSURE NOTICE DATE”). The term “GENERATOR TAX DISPUTE PERIOD”,
\nfor any Tax Year, shall mean the period commencing on the Tax Closure Date for
\nsuch Tax Year and ending on the date one hundred twenty (120) days after the Tax
\nClosure Notice Date for such Tax Year; provided, however, that if, after the Tax
\nClosure Date for such Tax Year but prior to the expiration of such 120-day
\nperiod, Landlord shall issue a Tax Statement for such Tax Year, then the
\nGenerator Tax Dispute Period shall be the period commencing on the Tax Closure
\nDate for such Tax Year and ending on the date one hundred twenty (120) days
\nafter the later of (i) the Tax Closure Notice Date or (ii) the date on which
\nsuch Tax Statement is issued.<\/p>\n
(B) (i) Tenant, unless and until there shall be a final
\ndetermination of Tenant’s Generator Taxes for such Tax Year pursuant to the
\nprovisions of this Section 3.02(f)(2) (by agreement, arbitration or otherwise),
\nshall make payments of the Tax Payment for such Tax Year based upon Landlord’s
\nestimate of Tenant’s Generator Taxes for such Tax Year, if any, as set forth
\nfrom time to time on the then most recent Tax Statement for such Tax Year.
\nLandlord’s estimate of Tenant’s Generator Taxes for any Tax Year, as set forth
\non any Tax Statement, shall not be greater than Landlord’s then good-faith
\nopinion of Tenant’s Generator Taxes for such Tax Year.<\/p>\n
(ii) If, at anytime during the Generator Tax Dispute
\nPeriod for such Tax Year, Tenant reasonably believes that the amount set forth
\nas Tenant’s Generator Taxes on the then most recent Tax Statement for such Tax
\nYear is incorrect, then Tenant, by notice to Landlord given not later than end
\nof the Generator Tax Dispute Period for such Tax Year, shall so notify Landlord
\nof Tenant’s belief, which notice shall refer to the Tax Year with respect to
\nwhich such notice is being served, and set forth Tenant’s good-faith opinion of
\nthe amount of Tenant’s Generator Taxes for such Tax Year (each such notice being
\nherein called a “GENERATOR DISPUTE NOTICE”). If Tenant shall fail to serve a
\nGenerator Dispute Notice prior to the end of the Generator Tax Dispute Period,
\nthen, subject to the provisions of subsection (iii) below, the amount set forth
\nas Tenant’s Generator Taxes on the most recent Tax Statement as of the end of
\nsuch period shall be binding and conclusive on Landlord and Tenant.<\/p>\n
(iii) For purposes of this lease, Tenant’s Generator
\nTaxes shall be deemed to have been finally determined for any Tax Year upon (x)
\nthe expiration of the Generator Tax Dispute Period with respect to such Tax Year
\n(in the event that Tenant does not give a Generator Dispute Notice prior to the
\nend of such Generator Tax Dispute Period as provided in Section
\n3.02(f)(2)(B)(ii) above), (y) a determination in arbitration as to Tenant’s
\nGenerator Taxes (following Tenant’s giving of a Generator Dispute Notice)
\npursuant to Section 3.02(f)(2)(C) below, or (z) an agreement of Landlord and
\nTenant as to Tenant’s Generator Taxes (following Tenant’s giving of a<\/p>\n
-19-
\n 24
\nGenerator Dispute Notice as contemplated by Section 3.02(f)(2)(C) below);
\nprovided, however, that if Landlord, in accordance with the provisions of this
\nlease, shall issue a Tax Statement for such Tax Year after the lapse of the
\nGenerator Tax Dispute Period, then, and in each such case, Tenant’s Generator
\nTaxes for such Tax Year shall not be finally determined as aforesaid, but rather
\nthe provisions of Sections 3.02(f)(2)(B)(ii) and 3.02(f)(2)(C), as well as this
\nSection 3.02(f)(2)(B)(iii), shall again apply, mutatis mutandis, except that the
\nGenerator Tax Dispute Period shall be the period commencing on the date on which
\nLandlord issued such Tax Statement and ending on the date that is one hundred
\ntwenty (120) days thereafter. Accordingly, pursuant to the operation of the
\nproviso to the preceding sentence there may be more than one final determination
\nof the Tenant’s Generator Taxes.<\/p>\n
(C) If Tenant shall timely serve a Generator Dispute Notice
\nfor any Tax Year, then (I) Landlord and Tenant shall proceed in good-faith to
\nagree upon the amount of the Tenant’s Generator Taxes for the Tax Year in
\nquestion, and (II) if Landlord and Tenant are unable to so agree on or prior to
\nthe date that is sixty (60) days after the date that Landlord receives the
\nGenerator Dispute Notice, then, at anytime thereafter, either of Landlord or
\nTenant, by written notice to the other party (herein called a “GENERATOR
\nARBITRATION NOTICE”), may submit the determination of Tenant’s Generator Taxes
\nfor such Tax Year to arbitration in accordance with the following provisions:<\/p>\n
(w) Within thirty (30) days after either party’s receipt
\n of a Generator Arbitration Notice, each of Landlord and Tenant, by
\n notice to the other party, shall appoint an arbitrator (the two
\n arbitrators so appointed being herein collectively called the “INITIAL
\n GENERATOR ARBITRATORS”). If either Landlord or Tenant shall fail to
\n timely appoint an Initial Generator Arbitrator within such 30-day
\n period, then the party which appointed an Initial Generator Arbitrator
\n may notify the other party of such failure (which notice shall refer
\n specifically to this Section 3.02(f)(2)(C)(w)), and if, in such event,
\n the other party does not, within a period of ten (10) days after its
\n receipt of such notice, appoint the second Initial Generator
\n Arbitrator, then the appointed Initial Generator Arbitrator shall
\n independently select and appoint the second Initial Generator
\n Arbitrator, within fifteen (15) days after the expiration of such
\n 10-day period. Within twenty (20) days after the appointment of both
\n Initial Generator Arbitrators, the Initial Generator Arbitrators shall
\n jointly appoint a mutually agreeable third arbitrator who shall be
\n impartial (herein called the “THIRD GENERATOR ARBITRATOR”). If the
\n Initial Generator Arbitrators fail to agree upon and appoint the Third
\n Generator Arbitrator within such 10-day period, then either Landlord or
\n Tenant may request that the American Arbitration Association (“AAA”)
\n appoint the Third Generator Arbitrator within twenty (20) days after
\n such request, and both parties shall be bound by any appointment so
\n made within such 20-day period. If the Third Generator Arbitrator shall
\n not have been appointed within such 20-day period, then either Landlord
\n or Tenant may apply to any court having jurisdiction to make such
\n appointment. The Third Generator Arbitrator shall subscribe and swear
\n to an oath to fairly and impartially perform the duties required of the
\n Third Generator Arbitrator pursuant to this Section 3.02(f)(2)(C).<\/p>\n
(x) Within thirty (30) days after the appointment of the
\n Third Generator Arbitrator, Landlord and Tenant shall each submit to
\n the Third Arbitrator, in a sealed envelope, a written statement setting
\n forth such party’s then good-faith determination of<\/p>\n
-20-
\n 25
\n Tenant’s Generator Taxes for such Tax Year (Landlord’s determination is
\n herein called “LANDLORD’S GENERATOR DETERMINATION” and Tenant’s
\n determination is herein called “TENANT’S GENERATOR DETERMINATION” and
\n Landlord’s Generator Determination and Tenant’s Generator Determination
\n are herein collectively called the “GENERATOR DETERMINATIONS”). Neither
\n of the Generator Determinations shall be opened except as and when
\n hereinafter expressly provided. If either Landlord or Tenant shall fail
\n to submit its Generator Determination in accordance with the provisions
\n of this Section 3.02(f)(2)(C)(x), then the party which made a Generator
\n Determination shall notify the other party of such failure (which
\n notice shall refer specifically to this Section 3.02(f)(2)(C)(x)), and
\n if, in such event, the other party does not, within a period of ten
\n (10) days after its receipt of such notice, submit its Generator
\n Determination, then the only Generator Determination which was made in
\n accordance with this Section 3.02(f)(2)(C)(x) shall promptly thereafter
\n be opened by the Third Generator Arbitrator, and Tenant’s Generator
\n Taxes for such Tax Year shall be such Generator Determination, which
\n Generator Determination shall be conclusive and binding upon both
\n Landlord and Tenant.<\/p>\n
(y) If both Landlord and Tenant submit their
\n respective Generator Determinations in accordance with the provisions
\n of Section 3.02(f)(2)(C)(x) above, then the Third Generator Arbitrator
\n shall arrange a meeting (herein called the “GENERATOR ARBITRATION
\n MEETING”) to be held at the Building office (or at such other place as
\n is mutually agreeable to the Third Arbitrator and Landlord and Tenant
\n and located in the Borough of Manhattan), and which shall occur during
\n Business Hours on a day not later than twenty (20) days after the Third
\n Generator Arbitrator’s receipt of both Generator Determinations.
\n Landlord and Tenant shall have not less than ten (10) days notice of
\n the date, time and location of the Generator Arbitration Meeting and
\n shall have the right to have its representatives present thereat. At
\n the Generator Arbitration Meeting, (i) the Generator Determinations
\n shall be opened by the Third Arbitrator and copies thereof shall be
\n distributed to Landlord and Tenant, and (ii) thereafter, each of
\n Landlord and Tenant may submit to the Third Generator Arbitrator such
\n written evidence in support of its Generator Determination as it deems
\n appropriate.<\/p>\n
(z) Within twenty (20) days after the
\n Generator Arbitration Meeting, the Third Arbitrator shall independently
\n select the Generator Determination (as between Landlord’s Generator
\n Determination and Tenant’s Generator Determination) which, in his
\n opinion, more accurately reflects Tenant’s Generator Taxes, and shall
\n notify Landlord and Tenant of such selection in writing.<\/p>\n
(D) With respect to any arbitration
\nconducted pursuant to the provisions of Section 3.02(f)(2)(C) above, the
\nfollowing provisions shall apply: (i) the fees and expenses of any such
\narbitration shall be borne by the parties equally, but each party shall bear the
\nexpense of the Initial Generator Arbitrator appointed by it and its attorneys
\nand experts as well as any expenses of presenting its own proof; (ii) Landlord
\nand Tenant shall each have the right to submit such data and memoranda to the
\nThird Arbitrator in support of their respective positions as they may deem
\nnecessary or appropriate; (iii) each arbitrator shall be an attorney licensed to
\npractice law in the State of New York, who shall not be a sole practitioner, and
\nwho shall have at least ten (10) years’ experience in tax certiorari and real
\nestate tax litigation with respect to properties which are similar in character
\nto the Building; and (iv) no arbitrator shall have any power to add to, modify
\nor change any such definitions or any other provisions of<\/p>\n
-21-
\n 26
\nthis lease, and the jurisdiction of the arbitrators is accordingly limited.<\/p>\n
(E) Within thirty (30) days after the final determination
\nof Tenant’s Generator Taxes for any Tax Year as between Landlord and Tenant, the
\nTax Payment for such Tax Year shall be re-computed and reconciled with payments
\ntheretofore made on account of such Tax Payment, and (i) if the payments
\ntheretofore made by Tenant on account of such Tax Payment were less than the Tax
\nPayment as re-computed, then Tenant shall pay to Landlord the amount of such
\ndeficiency within twenty (20) days after demand therefor, or (ii) if the
\npayments theretofore made by Tenant on account of such Tax Payment were greater
\nthan the Tax Payment as re-computed, then Landlord shall pay to Tenant the
\namount of such overpayment within twenty (20) days after demand therefor.<\/p>\n
(3) If, for any Tax Year that Tenant’s Generator
\nconstitutes a separate tax lot, Tenant shall have the obligation to pay to
\nLandlord, as the Generator Component of the Tax Payment, an amount equal to the
\nentire amount of Tenant’s Generator Taxes, then, for each such Tax Year and
\nnotwithstanding the provisions of Section 3.02(d) to the contrary, the following
\nprovisions shall apply:<\/p>\n
(A) Except as provided below, (i) Landlord shall not have
\nany right to protest or contest Tenant’s Generator Taxes for such Tax Year or
\nany obligation to do so, and (ii) Tenant shall have the right to protest or
\ncontest Tenant’s Generator Taxes for such Tax Year.<\/p>\n
(B) Landlord, in connection with any such protest or
\ncontest of Tenant’s Generator Taxes made or instituted by Tenant pursuant to
\nSection 3.02(f)(3)(A) above, shall, within fifteen (15) Business Days after
\nwritten request therefor, execute (and provide any readily accessible
\ninformation known by Landlord for) any documents reasonably required in
\nconnection therewith, provided that such documents are in proper form. Tenant
\nhereby agrees that it shall (x) reimburse Landlord all Landlord’s out-of-pocket
\nexpenses incurred in connection with any protest or contest of Tenant’s
\nGenerator Taxes made or instituted by Tenant (including without limitation those
\nincurred in connection with Landlord’s execution of any documents, or its
\nprovision of information, as provided in the preceding sentence), and (y)
\nindemnify and hold harmless Landlord against any and all liabilities which
\nLandlord may incur by reason of its execution of any documents, or its provision
\nof information, as provided in the preceding sentence; provided, however, that
\nneither such reimbursement nor such indemnity shall include any such expenses or
\nliabilities to the extent that (i) Landlord is responsible therefor under any
\nother provision of this lease, (ii) the same would be, or would have been,
\ndischarged, satisfied or avoided by Landlord’s performance of its obligations
\nunder this lease, or (iii) the same arise out of any inaccuracy in any
\ninformation provided by Landlord.<\/p>\n
(C) Notwithstanding the foregoing provisions of this
\nSection 3.02(f)(3), Tenant’s right to protest or contest Tenant’s Generator
\nTaxes as set forth in Section 3.02(f)(3)(A) above for any Tax Year (as well as
\nLandlord’s obligation to execute documents and provide information in connection
\ntherewith as set forth in Section 3.02(f)(3)(B) above), shall be subject to such
\nprotest or contest by Tenant not having, in Landlord’s reasonable judgement, a
\nnegative impact upon Landlord in any pending or prospective protest or contest
\nof any other Taxes for such Tax Year or any other Tax Year.<\/p>\n
(g) In respect of PSI’s Generator, the
\nfollowing provisions shall apply:<\/p>\n
-22-
\n 27
\n (1) Landlord shall make application to the applicable
\ntaxing authority to have PSI’s Generator assigned a separate tax lot for
\npurposes of Taxes.<\/p>\n
(2) For each Tax Year that PSI’s Generator does not
\nconstitute a separate tax lot, the following provisions shall apply:<\/p>\n
(A) Tenant, unless and until there shall be a final
\ndetermination of PSI’s Generator Taxes as between Landlord and PSI (by agreement
\nor arbitration), shall make payments of the Tax Payment for such Tax Year based
\nupon Landlord’s estimate of PSI’s Generator Taxes for such Tax Year, if any, as
\nset forth from time to time on the then most recent Tax Statement for such Tax
\nYear. Landlord’s estimate of PSI’s Generator Taxes for any Tax Year, as set
\nforth on any Tax Statement, shall not be greater than Landlord’s then good-faith
\nopinion of PSI’s Generator Taxes for such Tax Year.<\/p>\n
(B) Upon a final determination of PSI’s Generator Taxes as
\nbetween Landlord and PSI for any Tax Year, PSI’s Generator Taxes for purposes of
\nthis lease for such Tax Year shall be deemed to be one of the following amounts
\n(which amount, in either case, shall be conclusive and binding upon Landlord and
\nTenant): (i) if the final determination of PSI’s Generator Taxes as between
\nLandlord and PSI for such Tax Year was the result of a binding arbitration
\nproceeding between Landlord and PSI, then PSI’s Generator Taxes under this lease
\nfor such Tax Year shall be deemed to be the amount of such final determination;
\nand (ii) in any other case, PSI’s Generator Taxes under this lease for such Tax
\nYear shall be deemed to be an amount equal to (x) the Generator Differential
\nFactor (as hereinafter defined) for such Tax Year, multiplied by (y) Tenant’s
\nGenerator Taxes for such Tax Year (as finally determined under this lease). As
\nused herein, the “GENERATOR DIFFERENTIAL FACTOR”, for any Tax Year, shall mean
\nthe quotient obtained by dividing (I) the capacity of PSI’s Generator (measured
\nin KVAs) for such Tax Year, by (II) the capacity of Tenant’s Generator (measured
\nin KVAs) for such Tax Year (which quotient, if not a whole number, shall be
\nrounded to four decimal places).<\/p>\n
(C) Within thirty (30) days after the final determination
\nof PSI’s Generator Taxes under this lease for any Tax Year (it being understood
\nthat if Section 3.02(g)(2)(B)(ii) is applicable, then such final determination
\ncannot be made until Tenant’s Generator Taxes for such Tax Year have been
\nfinally determined), the Tax Payment for such Tax Year shall be re-computed and
\nreconciled with payments theretofore made on account of such Tax Payment, and
\n(i) if the payments theretofore made by Tenant on account of such Tax Payment
\nwere less than the Tax Payment as re-computed, then Tenant shall pay to Landlord
\nthe amount of such deficiency within twenty (20) days after demand therefor, or
\n(ii) if the payments theretofore made by Tenant on account of such Tax Payment
\nwere greater than the Tax Payment as re-computed, then Landlord shall pay to
\nTenant the amount of such overpayment within twenty (20) days after demand
\ntherefor.<\/p>\n
(h) (1) Notwithstanding anything to the contrary
\nset forth above in this Section 3.02, there shall be an abatement of the Base
\nComponent of the Tax Payment(s) which are payable in respect of all periods
\nprior to the Tax Payment Commencement Date (as hereinafter defined); there shall
\nbe no such abatement of the Generator Component of such Tax Payment(s). The “TAX
\nPAYMENT COMMENCEMENT DATE” shall be July 1, 1995. If the Tax Payment
\nCommencement Date shall be a day other than the first day of a Tax Year, then
\nthe Base Component of the Tax Payment for the Tax Year in which the Tax Payment
\nCommencement Date occurs shall be prorated (on a per diem basis) to correspond<\/p>\n
-23-
\n 28
\nto that portion of the Tax Year occurring on or after the Tax Payment
\nCommencement Date.<\/p>\n
(2) Notwithstanding anything to the contrary set forth
\nabove in this Section 3.02, in respect of the Tax Year in which the Expiration
\nDate occurs, (i) the Base Component of the Tax Payment shall be prorated (on a
\nper diem basis) to correspond to that portion of such Tax Year occurring on or
\nprior to the Expiration Date, and (ii) except as provided in Section 3.02(h)(3)
\nbelow, the Generator Component of the Tax Payment shall also be prorated (on a
\nper diem basis) to correspond to that portion of such Tax Year occurring on or
\nprior to the Expiration Date.<\/p>\n
(3) Unless (i) Landlord, pursuant to Section 12.02(c)
\nhereof, shall designate Tenant’s Generator Unit as among Designated Exterior
\nImprovements (as hereinafter defined), or (ii) in any case that this lease shall
\nterminate pursuant to a Non-Scheduled Early Termination (as hereinafter
\ndefined), the Section 12.02(c) Work shall include the removal of Tenant’s
\nGenerator Unit and Landlord shall not perform the same in accordance with the
\nprovisions of Section 12.02(c), the following provisions shall apply
\n(notwithstanding the foregoing provisions of this Section 3.02): (A) in respect
\nof the Tax Year in which the Expiration Date occurs, the Generator Component of
\nthe Tax Payment shall not be prorated (but rather Tenant shall pay, as the
\nGenerator Component of the Tax Payment for such Tax Year, an amount equal to the
\nentirety of Tenant’s Generator Taxes for such Tax Year, notwithstanding the fact
\nthat this lease shall not be in effect for the entirety of such Tax Year), and
\n(B) in respect of each fiscal tax year or other period occurring after the Tax
\nYear in which the Expiration Date occurs, Tenant, notwithstanding that this
\nlease will not be in effect for any part of such fiscal tax year or other
\nperiod, shall continue to pay to Landlord an amount equal to either (i) for any
\nsuch fiscal tax year or other period for which a separate tax lot exists for
\nTenant’s Generator (whether or not Tenant’s Generator is in existence during
\nsuch fiscal tax year or other period), Taxes payable with respect to such
\nseparate tax lot, and (ii) for any other such fiscal tax year or other period,
\nthe portion of Taxes payable with respect to the Real Property which is
\nattributable to the then current or past existence of Tenant’s Generator. The
\nprovisions of Sections 3.02(b), 3.02(c) and 3.02(f) above, as applicable to the
\nGenerator Component of the Tax Payment for Tax Years, shall apply, mutatis
\nmutandis, to Tenant’s payment obligations pursuant to clause (B) above for the
\nfiscal tax years and other periods described therein.<\/p>\n
3.03. (a) Tenant, for each Operating Year occurring after the
\nBase Operating Year, shall pay to Landlord, as Additional Charges for such
\nOperating Year, an amount (herein called the “OPERATING PAYMENT”) equal to
\nTenant’s Operating Share of the excess of (i) Operating Expenses for such
\nOperating Year, over (ii) the Base Operating Amount.<\/p>\n
(b) Landlord may furnish to Tenant, prior to the
\ncommencement of each Operating Year subsequent to the Base Operating Year, a
\nwritten statement setting forth Landlord’s reasonable estimate of the Operating
\nPayment for such Operating Year (such estimate, as the same may be revised as
\nhereinafter provided, the “LANDLORD’S ESTIMATED OPERATING PAYMENT”). Tenant
\nshall pay to Landlord on the first day of each month during the Operating Year
\nfor which the Operating Payment will be due, an amount equal to one-twelfth
\n(1\/12th) of the Landlord’s Estimated Operating Payment for such Operating Year.
\nIf, however, Landlord shall not furnish any such estimate for an Operating Year
\nor if Landlord shall furnish any such estimate for an Operating Year subsequent
\nto the commencement thereof, then (i) until the first day of the month following
\nthe month in which such estimate is furnished to Tenant, Tenant shall pay to
\nLandlord on the first<\/p>\n
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\n 29
\nday of each month an amount equal to the monthly sum payable by Tenant to
\nLandlord under this Section 3.03 for the last month of the preceding Operating
\nYear, (ii) after such estimate is furnished to Tenant, Landlord shall give
\nnotice to Tenant stating whether the installments of the Operating Payment
\npreviously made for such Operating Year were greater or less than the
\ninstallments of the Operating Payment which should have been previously made for
\nsuch Operating Year in accordance with such estimate, and (A) if there shall be
\na deficiency, Tenant shall pay the amount thereof within thirty (30) days after
\nTenant’s receipt of such notice, or (B) if there shall have been an overpayment,
\nLandlord shall, within thirty (30) days from the giving of such notice, refund
\nto Tenant the amount thereof, together with interest on the amount thereof at
\nthe Base Rate for the period from the date(s) of such overpayment to the date
\nsuch payment is made, and (iii) on the first day of the month following the
\nmonth in which such estimate is furnished to Tenant, and on the first day of
\neach month thereafter throughout the remainder of such Operating Year, Tenant
\nshall pay to Landlord an amount equal to one-twelfth (1\/12th) of the Landlord’s
\nEstimated Operating Payment set forth on such estimate. Landlord may, during
\neach Operating Year (but not more than twice during any Operating Year), furnish
\nto Tenant a revised statement of Landlord’s Estimated Operating Payment for such
\nOperating Year, and in such case, the Landlord’s Estimated Operating Payment for
\nsuch Operating Year shall be adjusted and paid or refunded or credited as the
\ncase may be, substantially in the same manner as provided in the preceding
\nsentence.<\/p>\n
(c) Landlord, after the end of each Operating Year
\nsubsequent to the Base Operating Year, shall furnish to Tenant an Operating
\nStatement for such Operating Year. Landlord, prior to or together with the
\ndelivery of the initial Operating Statement for the first Operating Year after
\nthe Base Operating Year, shall furnish to Tenant an Operating Statement for the
\nBase Operating Year (the “BASE YEAR OPERATING STATEMENT”). If, for any Operating
\nYear after the Base Operating Year, the Operating Statement shall show that the
\nsums paid by Tenant, if any, under Section 3.03(b) exceeded the Operating
\nPayment to be paid by Tenant for such Operating Year (such excess for any
\nOperating Year being herein called the “OPERATING OVERPAYMENT”), then Landlord,
\nwithin thirty (30) days after delivery of such Operating Statement, shall refund
\nto Tenant the amount of such Operating Overpayment, together with interest on
\nthe amount thereof at the Base Rate for the period commencing on the last day of
\nthe Operating Year in question and ending on the date the appropriate refund is
\nmade. If the Operating Statement for such Operating Year shall show that the
\nsums so paid by Tenant were less than the Operating Payment to be paid by Tenant
\nfor such Operating Year (such deficiency for any Operating Year being herein
\ncalled the “OPERATING DEFICIENCY”), Tenant shall pay the amount of such
\nOperating Deficiency within thirty (30) days after Tenant’s receipt of the
\nOperating Statement.<\/p>\n
(d) (1) Tenant, upon notice given no later than the
\napplicable Audit Notice Deadline Date (as hereinafter defined) with respect to
\nany Operating Statement, may elect to have Tenant’s employees, accountants or
\nother agents examine, at reasonable times and at such location(s) in the City of
\nNew York as Landlord may reasonably designate, the Operating Expense Records (as
\nhereinafter defined) with respect to such Operating Statement; if Tenant shall
\nnot timely give such notice, then the Operating Statement in question shall be
\nconclusive and binding upon Tenant (it being agreed that the foregoing shall not
\nbe construed to prejudice Tenant’s rights with respect to items constituting
\nrevisions or corrections to such Operating Statement which are set forth in a
\nsubsequently delivered revised or corrected Operating Statement for the same
\nOperating Year). As used herein, the “AUDIT NOTICE DEADLINE DATE”, with respect
\nto any Operating Statement, shall refer to the date one hundred<\/p>\n
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\n 30
\neighty (180) days after the date of Tenant’s receipt thereof; provided, however,
\nthat with respect to the initial Base Year Operating Statement, the initial
\nOperating Statement for the first Operating Year after the Base Operating Year
\nand the initial Operating Statement for the second Operating Year after the Base
\nOperating Year (such three Operating Statements being herein collectively called
\nthe “THRESHOLD OPERATING STATEMENTS”), the term “Audit Notice Deadline Date”
\nshall refer to the date (herein called the “INITIAL AUDIT NOTICE DEADLINE DATE”)
\nthat is one hundred eighty (180) days after the first date after all of the
\nThreshold Operating Statements shall have been furnished to Tenant. As used
\nherein, “OPERATING EXPENSE RECORDS”, with respect to any Operating Statement,
\nshall mean such books and records as are relevant to the Operating Expenses
\nincurred in the Operating Year for which such Operating Statement is furnished.
\nIn connection with any examination by Tenant of the Operating Expense Records,
\nTenant agrees to treat, and to instruct its employees, accountants, attorneys
\nand agents to treat, all information as confidential and not disclose it to any
\nother person except Tenant’s accountants, employees, attorneys and agents,
\nexcept as may be required by law or may be necessary or appropriate in
\nconnection with the prosecution of any claim by Tenant hereunder.<\/p>\n
(2) If Tenant shall, in good-faith, dispute any Operating
\nStatement, then Tenant, no later than the Audit Notice Deadline Date with
\nrespect to such Operating Statement, may send a written notice (each, a
\n“TENANT’S STATEMENT”) to Landlord, setting forth such dispute(s) and specifying
\nin reasonable detail the basis therefor and Tenant’s determination of the
\nOperating Expenses for such Operating Year. If Tenant shall not timely give such
\nTenant’s Statement, then the Operating Statement in question shall be conclusive
\nand binding upon Tenant. If Tenant shall timely give such Tenant’s Statement,
\nthen Landlord and Tenant shall attempt to resolve and adjust such dispute(s). If
\nthey are unable to do so, Landlord and Tenant shall designate a certified public
\naccountant (the “ARBITER”) whose determination made in accordance with this
\nSection 3.03(d)(2) shall be binding upon the parties. The Arbiter shall be a
\nmember of an independent certified public accounting firm having at least twenty
\n(20) accounting professionals and shall have practiced as a certified public
\naccountant for at least ten (10) years. In the event that Landlord and Tenant
\nshall be unable to agree upon the designation of the Arbiter within thirty (30)
\ndays after receipt of notice from the other party requesting agreement as to the
\ndesignation of the Arbiter, which notice shall contain the names and addresses
\nof two or more certified public accountants who are acceptable to the party
\nsending such notice (any one of whom, if acceptable to the party receiving such
\nnotice as shall be evidenced by notice given by the receiving party to the other
\nparty within such thirty (30) day period, shall be the agreed upon Arbiter),
\nthen either party shall have the right to request the American Arbitration
\nAssociation (the “AAA”) (or any organization which is the successor thereto) to
\ndesignate as the Arbiter a certified public accountant whose determination made
\nin accordance with this Section 3.03(d)(2) shall be conclusive and binding upon
\nthe parties. Landlord and Tenant hereby agree that (A) except with respect to
\nthe Base Operating Year, any determination of Operating Expenses made by an
\nArbiter designated pursuant to this Section 3.03(d)(2) shall neither exceed the
\ndetermination of Landlord set forth in the Operating Statement nor be less the
\ndetermination of Tenant set forth in Tenant’s Statement, (B) with respect to the
\nBase Operating Year, any determination of Operating Expenses made by an Arbiter
\ndesignated pursuant to this Section 3.03(d)(2) shall neither exceed the
\ndetermination of Tenant set forth in Tenant’s Statement, nor be less than the
\ndetermination of Landlord set forth in the Operating Statement, and (C) that any
\ndetermination which does not comply with the foregoing shall be deemed increased
\nor<\/p>\n
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\n 31
\ndecreased, as the case may be, to cure such noncompliance. In rendering such
\ndetermination the Arbiter shall not add to, subtract from or otherwise modify
\nthe provisions of this lease, including the immediately preceding sentence.
\nNotwithstanding the foregoing provisions of this Section 3.03(d), Tenant,
\npending the resolution of any contest pursuant to the terms hereof shall
\ncontinue to pay in the manner provided for in this Section 3.03 all sums as
\ndetermined to be due based upon the Operating Statement. If, and to the extent
\nthat Tenant shall prevail, then within thirty (30) days after the resolution of
\nsuch contest (i.e., the Arbiter’s determination), Landlord shall make an
\nappropriate refund to Tenant, together with interest on the amount thereof at
\nthe Interest Rate (as defined in Article 31 hereof) for the period commencing on
\nthe last day of the Operating Year to which such refund relates and ending on
\nthe date such appropriate refund is made; if such determination shall relate to
\nthe Base Operating Year, any applicable refund shall be made with respect to all
\nsubsequent Operating Years with respect to which an initial Operating Statement
\nshall have been furnished to Tenant. With respect to any Operating Year other
\nthan the Base Operating Year, (i) if the Operating Expenses set forth in the
\nOperating Statement shall, in the aggregate, exceed 105% of the Arbiter’s
\ndetermination thereof, the costs of the Arbiter shall be borne by Landlord, (ii)
\nif the Operating Expenses set forth in Tenant’s Statement shall, in the
\naggregate, be less than 95% of the Arbiter’s determination thereof, the costs of
\nthe Arbiter shall be borne by Tenant, and (iii) otherwise, the costs of the
\nArbiter shall be shared equally. With respect to the Base Operating Year, (x) if
\nthe Operating Expenses set forth in Tenant’s Statement shall, in the aggregate,
\nexceed 105% of the Arbiter’s determination thereof, the costs of the Arbiter
\nshall be borne by Tenant, (y) if the Operating Expenses set forth in the
\nOperating Statement shall, in the aggregate be less than 95% of the Arbiter’s
\ndetermination thereof, the costs of the Arbiter shall be borne by Landlord, and
\n(z) otherwise, the costs of the Arbiter shall be shared equally.<\/p>\n
(3) Notwithstanding anything to the contrary contained in
\nSection 3.03(d)(2) above, the following provisions shall apply with respect to
\nTenant’s rights thereunder to dispute any amount included within Operating
\nExpenses on any Operating Statement pursuant to Section 3.01(c)(I)(2) hereof as
\na result of any alteration, addition, improvement, replacement, repair,
\nequipment or tool (each such amount being herein called a “SECTION 3.01(C)(I)(2)
\nAMOUNT”):<\/p>\n
(A) If Tenant shall not timely
\ngive a Tenant’s Statement with respect to any Operating Statement reflecting a
\nSection 3.01(c)(I)(2) Amount, or if Tenant’s Statement with respect to such an
\nOperating Statement shall not set forth a dispute of any Section 3.01(c)(I)(2)
\nAmount reflected therein, then (i) any such Section 3.01(c)(I)(2) Amount, as
\nreflected in such Operating Statement, shall be conclusive and binding upon
\nTenant, and (ii) in addition, the facts, figures and schedules used by Landlord
\nin determining such conclusive and binding Section 3.01(c)(I)(2) Amount (i.e.,
\nLandlord’s determination of each of the useful life, the Cost Savings Period,
\nthe Capital Costs and the Capital Cost Rate with respect to such alteration,
\naddition, improvement, replacement, repair, equipment or tool in question, as
\nwell as the Estimated Cost Savings Schedule as prepared by Landlord with respect
\nthereto) shall all be conclusive and binding upon Tenant for purposes of all
\nSection 3.01(c)(I)(2) Amounts theretofore or thereafter based thereon (including
\nwithout limitation any such Section 3.01(c)(I)(2) Amounts may appear on any
\nsubsequent Operating Statements), it being agreed that all further disputes by
\nTenant of such facts, figures and schedules shall be foreclosed.<\/p>\n
(B) If Tenant shall timely
\ngive a Tenant’s Statement with respect to any Operating Statement<\/p>\n
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\n 32
\nreflecting a Section 3.01(c)(I)(2) Amount and such Tenant’s Statement shall set
\nforth a dispute of any such Section 3.01(c)(I)(2) Amount reflected therein
\n(other than a dispute which is foreclosed pursuant to Section 3.03(d)(3)(A)
\nabove), then, to the extent any disputes as to such amounts shall be arbitrated
\nas provided in Section 3.03(d)(2) above, the following provisions shall apply
\nand bind the Arbiter:<\/p>\n
(x) If any Estimated
\nCost Savings Schedule shall be disputed, as to one or more Estimated Annual
\nSavings Amounts, then the issue which the Arbiter shall determine shall be
\nwhether each such disputed Estimated Annual Savings Amount was or was not a
\nreasonable estimate, at the time that the Estimated Cost Savings Schedule was
\nmade a part of the Operating Expense Records, of the Operating Expenses which
\nwould be avoided or saved for the applicable Operating Year as a result of the
\nalteration, addition, improvement, replacement, repair, equipment or tool in
\nquestion; in rendering his determination as to each such disputed Estimated
\nAnnual Savings Amount, the Arbiter shall be bound by the following: (I) if any
\nEstimated Annual Savings Amount is equal to or less than 115% of the Arbiter’s
\nopinion of what was the best estimate, at the time that the Estimated Cost
\nSavings Schedule was made a part of the Operating Expense Records, of the
\nOperating Expenses which would be avoided or saved for the applicable Operating
\nYear as a result of the alteration, addition, improvement, replacement, repair,
\nequipment or tool in question, then such Estimated Annual Savings Amount shall
\nconclusively be deemed to have been reasonable at such time; and (II) if any
\nEstimated Annual Savings Amount is greater than 115% of the Arbiter’s opinion of
\nwhat was the best estimate, at the time that the Estimated Cost Savings Schedule
\nwas made a part of the Operating Expense Records, of the Operating Expenses
\nwhich would be avoided or saved for the applicable Operating Year as a result of
\nthe alteration, addition, improvement, replacement, repair, equipment or tool in
\nquestion, then such Estimated Annual Savings Amount shall conclusively be deemed
\nto have been unreasonable at such time. Each disputed Estimated Annual Savings
\nAmount which the Arbiter determines to be an unreasonable in accordance with the
\nforegoing, shall be changed to the Arbiter’s opinion of what was the best
\nestimate, at the time that the Estimated Cost Savings Schedule was made a part
\nof the Operating Expense Records, of the Operating Expenses which would be
\navoided or saved for the applicable Operating Year as a result of the
\nalteration, addition, improvement, replacement, repair, equipment or tool in
\nquestion. The determination of the Arbiter, as to any disputed Estimated Annual
\nSavings Amount, shall, if made in accordance with this Section 3.03(d)(3)(x), be
\nconclusive and binding upon Landlord and Tenant as to all Section 3.01(c)(I)(2)
\nAmounts theretofore or thereafter based thereon.<\/p>\n
(y) If Landlord’s
\ndetermination of the useful life, Cost Savings Period, Capital Costs or Capital
\nCost Rate with respect to any alteration, addition, improvement, replacement,
\nrepair, equipment or tool shall be disputed, then any determination of the
\nArbiter with respect thereto shall be conclusive and binding upon Landlord and
\nTenant as to all Section 3.01(c)(I)(2) Amounts theretofore or thereafter based
\nthereon.<\/p>\n
(e) (1) Notwithstanding anything to the contrary set
\nforth above in this Section 3.03, there shall be an abatement of the Operating
\nPayment(s), if any, which are payable in respect of all periods prior to the
\nOperating Payment Commencement Date (as hereinafter defined). The “OPERATING
\nPAYMENT COMMENCEMENT DATE” shall be January 1, 1995. If the Operating Payment
\nCommencement Date shall be a day other than the first day of a Operating Year,
\nthen the Operating Payment for the Operating Year in which the Operating Payment
\nCommencement Date occurs shall be prorated (on a per diem basis) to correspond
\nto<\/p>\n
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\n 33
\nthat portion of the Operating Year occurring on or after the Operating Payment
\nCommencement Date.<\/p>\n
(2) Notwithstanding anything to the contrary set forth
\nabove in this Section 3.03, the Operating Payment for any Operating Year which
\nends after the Expiration Date, shall be prorated (on a per diem basis) to
\ncorrespond to that portion of such Operating Year occurring on or prior to the
\nExpiration Date.<\/p>\n
3.04. (a) In any case provided in this Article 3 in which
\nTenant is entitled to a payment from Landlord pursuant to the terms of this
\nArticle 3, Landlord, in lieu of making such payment, may credit the amount
\nthereof against the immediately following future installments of Fixed Rent and
\nAdditional Charges; provided, however, that if such a credit would exceed
\nTenant’s next installment of Fixed Rent and Recurring Additional Charges, then
\nthe uncredited portion of such excess shall bear interest at the Base Rate from
\nthe date due until the date credited. Nothing in this Article 3 shall be
\nconstrued so as to result in a decrease in the Fixed Rent hereunder. If this
\nlease shall expire before any such credit shall have been fully applied, then
\nLandlord, within thirty (30) days after the expiration hereof, shall refund to
\nTenant the unapplied balance of such credit, but if Tenant is in monetary
\ndefault hereunder Landlord may, in lieu thereof, credit the same against the
\namount of such default or withhold the same until such default is cured.<\/p>\n
(b) The expiration or termination of this lease
\nduring any Tax Year or Operating Year (for any part or all of which there is a
\nTax Payment or Operating Payment under this Article) shall not affect the rights
\nor obligations of the parties hereto respecting such payment and any Operating
\nStatement or Tax Statement, as the case may be, relating to such payment may be
\nsent to Tenant subsequent to, and all such rights and obligations of Landlord
\nand Tenant with respect thereto shall survive, any such expiration or
\ntermination. Any payments due under such Operating Statement and Tax Statement,
\nas the case may be, shall be payable within thirty (30) days after such
\nstatement or bill is sent to Tenant.<\/p>\n
3.05. (a) (1) Landlord’s failure to render, or delay in
\nrendering, a Tax Statement, or a revised or corrected Tax Statement, for any Tax
\nYear shall not prejudice Landlord’s right to thereafter render a Tax Statement,
\nor a revised or corrected Tax Statement, for such Tax Year or any other Tax
\nYear, nor shall the rendering of a revised or corrected Tax Statement for any
\nTax Year prejudice Landlord’s right to thereafter render a further revised or
\ncorrected Tax Statement for such Tax Year.<\/p>\n
(2) Notwithstanding the provisions of Section 3.05(a)(1)
\nabove or anything hereinabove contained to the contrary, if Landlord shall not
\nhave rendered an initial Tax Statement for any Tax Year on or prior to the date
\nthat is two (2) years after the end of such Tax Year, then Tenant may deliver to
\nLandlord a notice setting forth such failure, which notice shall expressly refer
\nto this Section 3.05(a)(2), and, in such event, if Landlord’s failure to deliver
\nan initial Tax Statement for such Tax Year shall continue for a further period
\nof three (3) months after Landlord’s receipt of such notice, then Landlord shall
\nno longer have the right to deliver a Tax Statement for such Tax Year and Tenant
\nshall not be obligated to make any Tax Payment for such Tax Year (it being
\nunderstood that the provisions of this Section 3.05(a)(2) however, shall not
\naffect, in any way, Landlord’s right to deliver a Tax Statement for any other
\nTax Year or to collect from Tenant any Tax Payment for such other Tax Year).<\/p>\n
(3) Notwithstanding the provisions of Section 3.05(a)(1)
\nabove or anything hereinabove contained to the<\/p>\n
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\n 34
\ncontrary, Landlord shall not have the right to render a revised or corrected Tax
\nStatement for any Tax Year later than the later to occur of (i) the date two (2)
\nyears after rendering of the initial Tax Statement for such Tax Year, and (ii)
\nthe date one (1) year after Tax Closure Date for such Tax Year; provided,
\nhowever, that Landlord shall always be (a) entitled and required to render a
\nrevised Tax Statement based upon a decrease in Taxes or increase in the Base Tax
\nAmount pursuant to any tax reduction proceeding or other tax litigation, and (b)
\nentitled to render a revised Tax Statement based upon an increase in Taxes or
\ndecrease in the Base Tax Amount pursuant to any tax reduction proceeding or
\nother tax litigation.<\/p>\n
(b) (1) Landlord’s failure to render, or delay in rendering, an
\nOperating Statement with respect to any Operating Year shall not prejudice
\nLandlord’s right to thereafter render an Operating Statement for such Operating
\nYear or any other Operating Year, nor shall the rendering of an Operating
\nStatement (or a revised or corrected Operating Statement) for any Operating Year
\nprejudice Landlord’s right to thereafter render one or more revised or corrected
\nOperating Statements for such Operating Year.<\/p>\n
(2) Notwithstanding the provisions of Section 3.05(b)(1)
\nabove or anything hereinabove contained to the contrary, if Landlord shall not
\nhave rendered an initial Operating Statement for any Operating Year prior to the
\ndate that is two (2) years after the end of such Operating Year, then Tenant may
\ndeliver to Landlord a notice setting forth such failure, which notice shall
\nexpressly refer to this Section 3.05(b)(2), and, in such event, if Landlord’s
\nfailure to deliver an initial Operating Statement for such Operating Year shall
\ncontinue for a further period of three (3) months after Landlord’s receipt of
\nsuch notice, then (i) Landlord shall still be obligated to deliver an Operating
\nStatement for such Operating Year and Tenant may suspend payment of any sums
\nwhich would otherwise come due under Section 3.03(b) until such Operating
\nStatement is furnished, (ii) Tenant shall not be obligated to pay any Operating
\nDeficiency for such Operating Year, and (iii) Landlord, within thirty (30) days
\nfrom delivery of such an Operating Statement for such Operating Year, shall
\nrefund to Tenant the amount of such Operating Overpayment, together with
\ninterest on the amount thereof at the Interest Rate (rather than at the Base
\nRate as provided in Section 3.03(c) above) for the period commencing on the last
\nday of the Operating Year in question and ending on the date the appropriate
\nrefund is made (it being understood that the provisions of this Section
\n3.05(b)(2), however, shall not affect, in any way, Landlord’s right to deliver
\nan Operating Statement for any other Operating Year or to collect from Tenant
\nany Operating Deficiency for such other Operating Year). The provisions of this
\nSection 3.05(b)(2) shall not apply to the Base Year Operating Statement;
\nprovided, however, that Landlord shall not be deemed to have delivered an
\nOperating Statement for any Operating Year subsequent to the Base Operating Year
\nunless and until it shall have furnished the Base Year Operating Statement.<\/p>\n
(3) Notwithstanding the provisions of Section 3.05(b)(1)
\nabove or anything hereinabove contained to the contrary, (I) with respect to any
\nOperating Year in respect of which one of the Threshold Operating Statements was
\nrendered, Landlord shall not have the right later than one (1) year after the
\nInitial Audit Notice Deadline Date to render a revised or corrected Operating
\nStatement with respect to such Operating Year, and (II) with respect to each
\nOperating Year occurring after the Operating Years in respect of which any of
\nthe Threshold Operating Statements were rendered, Landlord shall not have the
\nright later than one (1) year after rendering the initial Operating Statement
\nwith respect to such Operating Year<\/p>\n
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\n 35
\nto render a revised or corrected Operating Statement with respect to such
\nOperating Year.<\/p>\n
3.06. The parties hereto agree that for purposes of this
\nlease: (i) the rentable area of each floor of the Building shall be deemed to be
\nthe rentable square footages as set forth on Exhibit D attached hereto and made
\na part hereof (and, accordingly, all references in this lease to the rentable
\narea of any portion of the Building, including without limitation the Premises
\nor any portion thereof, shall be deemed to mean the rentable area thereof
\ncomputed with reference to the applicable rentable square footages set forth on
\nExhibit D attached hereto), (ii) the term “TENANT’S OPERATING SHARE DENOMINATOR”
\nshall be deemed to mean 2,333,731 and (iii) the term “TENANT’S TAX SHARE
\nDENOMINATOR” shall be deemed to mean 2,385,689; provided, however, in no event
\nshall such deemed rentable square footages and\/or numbers constitute or imply
\nany representation or warranty by Landlord whatsoever, as to the actual size of
\nany floor, any other portion of the Building or the Building or portions
\nthereof.<\/p>\n
ARTICLE 4<\/p>\n
Delivery of Premises; Landlord’s Work<\/p>\n
4.01. Tenant acknowledges that it has inspected the Premises
\nand is fully familiar with the condition of the Premises. Tenant hereby accepts
\nthe Premises “as is” on the date hereof. Except for Landlord’s Work (as
\nhereinafter defined), Landlord shall have no obligation to perform any work in
\nreadying the Premises for Tenant’s occupancy. No provision of this Article 4
\nshall release Landlord from the performance of any of its obligations under any
\nother Article of this lease.<\/p>\n
4.02. For purposes of this lease, the following terms shall
\nhave the following meanings:<\/p>\n
“LANDLORD’S WORK” shall mean, collectively, the following work:
\n(i) the work described in “PART I” of Exhibit E attached hereto (herein called
\nthe “STAIRWAY WORK”); (ii) the work described in “PART II” of Exhibit E attached
\nhereto (herein called the “SECONDARY WORK”); (iii) the work described in “PART
\nIII” of Exhibit E attached hereto (herein called “LANDLORD’S 50TH FLOOR WORK”);
\nand (iv) the work described in “PART IV” of Exhibit E attached hereto (herein
\ncalled the “ELEVATOR WORK”).<\/p>\n
“STAIRWAY WORK TARGET DATE” shall be May 15 1994; provided,
\nhowever, that the Stairway Work Target Date shall be postponed one day for each
\nday that Landlord is delayed in causing the substantial completion of the
\nStairway Work by reason of either (i) one or more acts or omissions of Tenant or
\nany Tenant Party (as such term is defined in Article 31 hereof), which acts or
\nomissions constitute a violation of this lease (including without limitation a
\nviolation of Section 4.04 hereof), or (ii) any stoppage or interruption in the
\nprosecution of Stairway Work undertaken pursuant to a request by Tenant or any
\nTenant Party, whether incident to the coordination of work pursuant to Section
\n4.04 or otherwise.<\/p>\n
“SECONDARY WORK TARGET DATE” shall be June 30, 1994; provided,
\nhowever, that the Secondary Work Target Date shall be postponed one day for each
\nday that Landlord is delayed in causing the substantial completion of the
\nSecondary Work by reason of either (i) one or more acts or omissions of Tenant
\nor any Tenant Party (as such term is defined in Article 31 hereof), which acts
\nor omissions constitute a violation of this lease (including without limitation
\na violation of Section 4.04 hereof), or (ii) any stoppage or interruption in the
\nprosecution of Secondary Work undertaken pursuant to a request by Tenant or<\/p>\n
-31-
\n 36
\nany Tenant Party, whether incident to the coordination of work pursuant to
\nSection 4.04 or otherwise.<\/p>\n
“LANDLORD’S 50TH FLOOR WORK TARGET DATE” shall be May 15, 1994;
\nprovided, however, that Landlord’s 50th Floor Work Target Date shall be
\npostponed one day for each day that Landlord is delayed in causing the
\nsubstantial completion of the Landlord’s 50th Floor Work by reason of either (i)
\none or more acts or omissions of Tenant or any Tenant Party (as such term is
\ndefined in Article 31 hereof), which acts or omissions constitute a violation of
\nthis lease (including without limitation a violation of Section 4.04 hereof), or
\n(ii) any stoppage or interruption in the prosecution of Landlord’s 50th Floor
\nWork undertaken pursuant to a request by Tenant or any Tenant Party, whether
\nincident to the coordination of work pursuant to Section 4.04 or otherwise.<\/p>\n
“ELEVATOR WORK TARGET DATE” shall be September 1, 1994;
\nprovided, however, that the Elevator Work Target Date shall be postponed one day
\nfor each day that Landlord is delayed in causing the substantial completion of
\nthe Elevator Work by reason of either (i) one or more acts or omissions of
\nTenant or any Tenant Party (as such term is defined in Article 31 hereof), which
\nacts or omissions constitute a violation of this lease (including without
\nlimitation a violation of Section 4.04 hereof), or (ii) any stoppage or
\ninterruption in the prosecution of the Elevator Work undertaken pursuant to a
\nrequest by Tenant or any Tenant Party, whether incident to the coordination of
\nwork pursuant to Section 4.04 or otherwise.<\/p>\n
4.03. (a) Landlord, at its sole cost and expense, shall
\nperform the Stairway Work and the Secondary Work, and may perform Landlord’s
\n50th Floor Work. All Landlord’s Work shall performed in a good and workmanlike
\nmanner in accordance with all applicable laws and requirements of public
\nauthorities having jurisdiction thereover, and sound construction practice.<\/p>\n
(b) (1) Landlord, subject to one or more Events of Force
\nMajeure, shall substantially complete the Stairway Work on or prior to the
\nStairway Work Target Date.<\/p>\n
(2) If, for any reason (including one or more Events
\nof Force Majeure), Landlord fails to substantially complete the Stairway Work on
\nor prior to the Stairway Work Target Date, then Tenant, as its sole and
\nexclusive remedy therefor, shall have the right, but not the obligation, to
\nperform the Stairway Work (or, as the case may be, the then incomplete portions
\nthereof), which right may be exercised only by written notice thereof to
\nLandlord given within the period commencing on the day immediately following the
\nStairway Work Target Date and ending on the date that is fifteen (15) days
\nthereafter, both days inclusive. If Tenant exercises such right, then (i)
\nLandlord shall no longer have any obligation to perform the Stairway Work (or,
\nas the case may be, the then incomplete portions thereof), (ii) Tenant, in
\ncompliance with the provisions of Article 11 hereof, shall perform the same, and
\n(iii) Landlord shall reimburse Tenant an amount equal to the reasonable
\nout-of-pocket costs incurred by Tenant in performing the Stairway Work (or, as
\nthe case may be, the incomplete portions thereof), including engineering,
\npermitting and construction costs, which reimbursement shall be made by Landlord
\nwithin thirty (30) days after its receipt of a statement from Tenant setting
\nforth all such reimbursable costs and accompanied by paid invoices therefor.<\/p>\n
(c) Landlord, subject to one or more Events of Force
\nMajeure, shall substantially complete the Secondary Work on or prior to the
\nSecondary Work Target Date.<\/p>\n
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\n 37
\n (d) If Landlord elects to perform Landlord’s 50th Floor
\nWork, then Landlord, subject to one or more Events of Force Majeure, shall
\nsubstantially complete the same on or prior to the Landlord’s 50th Floor Work
\nTarget Date.<\/p>\n
(e) Landlord, subject to one or more Events of Force
\nMajeure, shall substantially complete the Elevator Work on or prior to the
\nElevator Work Target Date.<\/p>\n
4.04. During Landlord’s prosecution of Landlord’s Work, Tenant
\nshall have the right to perform, or cause its contractors to perform, the
\nInitial Alterations, provided Tenant shall have complied with the provisions of
\nArticle 11 hereof, including the requirement that the labor union affiliation of
\nall such contractors shall be compatible with the labor employed by or on behalf
\nof Landlord. Landlord and Tenant shall cooperate with each other to facilitate
\nthe simultaneous prosecution of Landlord’s Work and the Initial Alterations and
\nshall each perform, or cause to be performed, their respective work in
\naccordance with good construction practices.<\/p>\n
ARTICLE 5<\/p>\n
Subordination, Non-Disturbance and Attornment<\/p>\n
5.01. For purposes of this lease, the following terms shall
\nhave the following meanings:<\/p>\n
(a) “UNDERLYING LEASE” shall mean any ground lease,
\noverriding lease or underlying lease of the Land and\/or any portion of the
\nBuilding of which the Premises are a part (but excluding any such lease which
\n(x) demises only leasable areas of the Building outside of the Premises, or (y)
\ndemises only one or more Units, no part of which is within the Premises), now or
\nhereafter existing, and all renewals, modifications, replacements and extensions
\nof any such lease; and the lessor of an Underlying Lease or its successor in
\ninterest, at the time referred in question, is herein called an “UNDERLYING
\nLESSOR”. The term “Underlying Lease” shall include without limitation the Master
\nGround Lease and the Common Elements Net Lease.<\/p>\n
(b) “MASTER GROUND LEASE” shall mean that certain Ground
\nLease, dated December 31, 1966, between Landlord (as successor-in-interest to
\nSol G. Atlas and John P. McGrath), as lessor, and Landlord (as
\nsuccessor-in-interest to New York Plaza Building Company), as lessee, a
\nmemorandum of which was recorded April 18, 1967 in the Register’s Office in Rec.
\nLiber 172 Page 10, as modified by (1) a certain Agreement dated June 14, 1968, a
\nmemorandum of which was recorded July 2, 1968 in the Register’s Office in Rec.
\nLiber 323 Page 162, (2) a certain Assignment and Assumption of Ground Lease,
\ndated October 19, 1989, which was recorded October 24, 1989 in the Register’s
\nOffice in Reel 1631 Page 1561, and (3) a certain Amendment to Ground Lease dated
\nApril 30, 1993, a memorandum of which Agreement shall has heretofore been
\nrecorded in the Register’s Office.<\/p>\n
(c) “COMMON ELEMENTS NET LEASE” shall mean that certain
\nAgreement of Lease, dated as of March 29, 1993, between the One New York Plaza
\nCondominium, as landlord, and Landlord, as tenant.<\/p>\n
(d) “MORTGAGE” shall mean any mortgage which may now or
\nhereafter affect the Land and\/or any portion of the Building of which the
\nPremises are a part and\/or any Underlying Lease, whether or not any such
\nmortgage shall also cover other lands and\/or buildings and\/or leases, including
\neach and every advance made or hereafter to be made under any such mortgage, and
\nto all modifications, replacements and extensions, spreaders and<\/p>\n
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\n 38
\nconsolidations of any such mortgage; and the holder of a Mortgage is herein
\ncalled a “MORTGAGEE”.<\/p>\n
(e) “NON-DISTURBANCE AGREEMENT” shall mean (1) in the
\ncase of an Underlying Lease, an agreement between the Underlying Lessor under
\nsuch Underlying Lease and Tenant, either in the form annexed hereto as Exhibit
\nF-1 or in such other form as shall be proposed by such Underlying Lessor so long
\nas such other form, as compared to the form annexed as Exhibit F-1, does not, in
\nany material respect, increase the obligations or liabilities of Tenant or
\ndecrease the rights or remedies of Tenant, and, in all cases, in recordable
\nform, providing in substance that (A) such Underlying Lessor will not name or
\njoin Tenant as a party defendant or otherwise in any suit, action or proceeding
\nto enforce any rights granted to such Underlying Lessor under its Underlying
\nLease (unless required by law), and (B) that if such Underlying Lease shall
\nterminate or be terminated, the Underlying Lessor will recognize Tenant as the
\ndirect tenant of such Underlying Lessor on the same terms and conditions as are
\ncontained in this Lease, and (2) in the case of a Mortgage, an agreement between
\nthe Mortgagee under such Mortgage and Tenant, either in the form annexed hereto
\nas Exhibit F-2 or in such other form as shall be proposed by such Mortgagee so
\nlong as such other form, as compared to the form annexed as Exhibit F-2, does
\nnot, in any material respect, increase the obligations or liabilities of Tenant
\nor decrease the rights or remedies of Tenant, and, in all cases, in recordable
\nform, providing in substance that (A) Tenant shall not be named or joined as a
\nparty defendant or otherwise in any suit, action or proceeding to enforce any
\nrights granted to such Mortgagee under its Mortgage (unless required by law),
\nand (B) the possession of Tenant shall not be disturbed or evicted and this
\nlease, Tenant’s leasehold estate and Tenant’s rights hereunder shall not be
\nterminated or otherwise adversely affected as a result of any foreclosure of any
\nsuch Mortgage, and any sale pursuant to any such foreclosure or the delivery of
\na deed in lieu of foreclosure, or other acquisition of Landlord’s interest in
\nthe Land and\/or Building pursuant to the enforcement of the Mortgagee’s
\nremedies; provided, however, that (i) any such provisions of any Non-Disturbance
\nAgreement may be conditioned upon this lease being in full force and effect and
\nno Event of Default having occurred and being continuing, and may be further
\nconditioned upon and made subject to Tenant’s compliance with the provisions of
\nSection 5.04 hereof (pursuant to the same or separate agreement), and (ii) any
\nNon-Disturbance Agreement may contain the substance of Section 5.03 hereof and
\nsubclauses (a) through (f) of Section 5.04 hereof.<\/p>\n
5.02. Subject to Section 5.05 hereof, this lease, and all
\nrights of Tenant hereunder, are and shall be subject and subordinate to each and
\nevery Underlying Lease and to each and every Mortgage. In confirmation of such
\nsubordination, Tenant shall promptly execute, acknowledge and deliver any
\ninstrument that Landlord, any Underlying Lessor or any Mortgagee, or any of
\ntheir respective successors in interest, may reasonably request to evidence such
\nsubordination. Without limiting the generality of the foregoing, this lease is
\nand shall be subject and subordinate in all respects to the Master Ground Lease
\nand the Common Elements Net Lease. Landlord represents that, as of the date
\nhereof, (i) there are no Mortgages, and (ii) there are no Underlying Leases,
\nother than the Master Ground Lease and the Common Elements Net Lease.<\/p>\n
5.03. If any act or omission of Landlord would give Tenant the
\nright, immediately or after lapse of a period of time, to cancel or terminate
\nthis lease, or to abate or offset against the payment of rent or to claim a
\npartial or total eviction, Tenant shall not exercise such right (a) until it has
\ngiven written notice of such act or omission to each Mortgagee and each
\nUnderlying Lessor whose name and address shall previously have<\/p>\n
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\n 39
\nbeen furnished to Tenant (in each case with a copy to Landlord), and (b) until a
\nreasonable period for remedying such act or omission shall have elapsed
\nfollowing the giving of such notice which shall include a reasonable period of
\ntime for such Mortgagee or Underlying Lessor to have become entitled under such
\nMortgage or Underlying Lease, as the case may be, to remedy the same and shall
\nin no event be less than the period to which Landlord would be entitled under
\nthis lease or otherwise, after similar notice, to effect such remedy plus thirty
\n(30) days, provided that such Mortgagee or Underlying Lessor shall, within
\nthirty (30) days after its receipt of Tenant’s notice given in accordance
\nherewith, give Tenant notice of its intention to diligently (i) take such
\nactions as shall be required in order to entitle it to remedy such act or
\nomission and (ii) having become so entitled, remedy such act or omission;
\nprovided, however, that such reasonable period, if not theretofore expired,
\nshall be deemed to expire upon a failure by such Mortgagee or Underlying Lessor
\nto act in reasonable conformity with such notice of intention. The notice and
\ncure rights of Mortgagees and Underlying Lessors set forth in this Section 5.03
\nare not intended to apply to Tenant’s rights to terminate this lease as
\nexpressly set forth Sections 19.03, 20.02 and 37.01 hereof, or to Tenant’s
\nrights to an abatement of rent expressly as set forth in Sections 1.06,
\n3.02(h)(1), 3.03(e)(1), 19.02 and 33.01 hereof.<\/p>\n
5.04. If any Underlying Lessor or Mortgagee, any designee of
\nany Underlying Lessor or Mortgagee, or any other person shall succeed to the
\nrights of Landlord under this lease, whether through possession or foreclosure
\naction or delivery of a new lease or deed, then at the request of such party so
\nsucceeding to Landlord’s rights (herein called “SUCCESSOR LANDLORD”), Tenant
\nshall attorn to and recognize such Successor Landlord as Tenant’s landlord under
\nthis lease and shall promptly execute and deliver any instrument that such
\nSuccessor Landlord may reasonably request to evidence such attornment. Upon such
\nattornment this lease shall continue in full force and effect as a direct lease
\nbetween the Successor Landlord and Tenant upon all of the terms, conditions and
\ncovenants as are set forth in this lease, except that a Successor Landlord shall
\nnot be:<\/p>\n
(a) liable for any previous act or omission of Landlord (or its
\npredecessors in interest); it being understood that the foregoing is not
\nintended to relieve Successor Landlord of any liability arising by reason of its
\nacts or omissions from and after the date of such attornment, including a
\ncontinuation of the failure of the prior Landlord to perform its obligations
\nunder this lease, in which case Successor Landlord upon receipt of notice of
\nsuch continuation from Tenant shall have a reasonable period of time to remedy
\nsame (which period shall not exceed the time period granted Landlord for such
\nremedy pursuant to the terms of this Lease);<\/p>\n
(b) responsible for any monies owing by Landlord to the credit
\nof Tenant;<\/p>\n
(c) subject to any offsets, claims, counterclaims, demands or
\ndefenses which Tenant may have against Landlord (or its predecessors in
\ninterest);<\/p>\n
(d) bound by any payments of rent which Tenant might have made
\nfor more than one (1) month in advance to Landlord (or its predecessors in
\ninterest);<\/p>\n
(e) required to account for any security deposit other than any
\nsecurity deposit actually delivered to the Successor Landlord; and<\/p>\n
(f) bound by any modification of this lease, which is made
\nafter the date Tenant has actual notice of the existence of such Successor
\nLandlord’s Mortgage or Underlying<\/p>\n
-35-
\n 40
\nLease, and which is made without the written consent of the Mortgagee or
\nUnderlying Lessor.<\/p>\n
5.05. (a) Landlord, with respect to any Mortgage or Underlying
\nLease executed after the date hereof, shall deliver to Tenant a Non-Disturbance
\nAgreement from the Mortgagee or Underlying Lessor thereunder; provided, however,
\nthat if an Event of Default has occurred and is continuing, then Landlord shall
\nhave no obligation to deliver a Non-Disturbance Agreement to Tenant with respect
\nto any such future Mortgage or future Underlying Lease until such time as such
\nEvent of Default shall have ceased to continue, and, during the continuance of
\nsuch Event of Default, this lease shall be subject and subordinate to such
\nUnderlying Lease or Mortgage notwithstanding that a Non-Disturbance Agreement
\nhas not been delivered to Tenant.<\/p>\n
(b) If, in any instance, (i) Landlord shall have
\ndelivered to Tenant a form of Non-Disturbance Agreement for execution by Tenant
\n(whether or not such form of Non-Disturbance Agreement shall have theretofore
\nbeen executed by the applicable Underlying Lessor or Mortgagee) together with a
\nrequest, referring to this clause (i) of this Section 5.05(b) and conforming to
\nthe last sentence of this Section 5.05(b), that Tenant execute the same, (ii)
\nTenant shall fail or refuse to execute and deliver same within fifteen (15)
\nBusiness Days after such delivery (or, in any case that the form of
\nNon-Disturbance Agreement is either (x) a form proposed by the applicable
\nUnderlying Lessor which differs from the form annexed hereto as Exhibit F-1, or
\n(y) a form proposed by the applicable Mortgagee which differs from the form
\nannexed hereto as Exhibit F-2, within twenty (20) Business Days after such
\ndelivery), (iii) following the expiration of such fifteen (15) Business Day
\nperiod (or, as the case may be, twenty (20) Business Day period), Landlord
\ndelivers to Tenant a notice setting forth such failure or refusal and referring
\nto this clause (iii) of this Section 5.05(b) and conforming to the last sentence
\nof this Section 5.05(b), and (iv) Tenant’s failure or refusal shall continue for
\na period of five (5) Business Days after Tenant’s receipt of the notice
\ndescribed in clause (iii) above (the last day of such five (5) Business Day
\nperiod being herein called, with respect to such Underlying Lease or Mortgage,
\nthe “NDA EXECUTION DEADLINE DATE”), then Landlord shall have no further
\nobligation pursuant to this Section 5.05 with respect to such Underlying Lease
\nor Mortgage, all of Landlord’s obligations being deemed satisfied, and this
\nlease and all rights of Tenant hereunder shall remain subject and subordinate to
\nsuch Underlying Lease or Mortgage without any need to deliver to Tenant a
\nNon-Disturbance Agreement, and no further instrument of subordination shall be
\nrequired. Any notice from Landlord under this Section 5.05(b) shall include, on
\nthe first page thereof, in capital letters the following legend: AS MORE FULLY
\nSET FORTH IN SECTION 5.05(b) OF THE LEASE, YOUR FAILURE TIMELY TO RESPOND TO
\nTHIS NOTICE MAY RESULT IN THE LEASE BEING SUBJECT AND SUBORDINATE TO AN
\nUNDERLYING LEASE OR MORTGAGE WITHOUT NON-DISTURBANCE PROTECTION.<\/p>\n
(c) If, in any instance, (i) Landlord shall deliver to
\nTenant a form of Non-Disturbance Agreement for execution by Tenant which has not
\ntheretofore been executed by the applicable Underlying Lessor or Mortgagee, as
\nthe case may be, and (ii) Tenant executes such form of Non-Disturbance Agreement
\nand delivers the same to Landlord on or prior to the applicable NDA Execution
\nDeadline Date, then Landlord shall, within fifteen (15) Business Days after
\nTenant’s execution thereof, cause the same to be executed by such Underlying
\nLessor or Mortgagee, as the case may be, and delivered to Tenant and, until such
\ntime as the Non-Disturbance Agreement is so delivered to Tenant, this lease
\nshall be superior to such Underlying Lease or Mortgage, as the case may be.<\/p>\n
-36-
\n 41
\n (d) If, with respect to any Mortgage or Underlying
\nLease executed after the date hereof, Landlord shall not deliver to Tenant a
\nNon-Disturbance Agreement from the Mortgagee or Underlying Lessor thereunder as
\nrequired by the foregoing provisions of this Section 5.05, then, unless and
\nuntil the same is delivered, this lease shall be superior to such Underlying
\nLease or Mortgage (and Landlord shall have no liability by reason of such not
\nhaving delivered the Non-Disturbance Agreement with respect to such Underlying
\nLease or Mortgage).<\/p>\n
(e) Tenant shall have the right to record any
\nNon-Disturbance Agreement, provided that Tenant shall pay for all costs, taxes
\nand\/or expenses necessary for the recordation of such Non-Disturbance Agreement.
\nUpon the expiration or earlier termination of this lease (or the expiration or
\ntermination of the applicable Mortgage or Underlying Lease, as the case may be),
\nTenant agrees to promptly execute, acknowledge and deliver to Landlord all
\nnecessary instrument(s) prepared by Landlord in recordable form and otherwise in
\nform reasonably satisfactory to Tenant, evidencing such expiration or
\ntermination of this lease and sufficient to discharge of record any
\nNon-Disturbance Agreements (or, in the case of the expiration or termination of
\nthe applicable Mortgage or Underlying Lease, to promptly execute, acknowledge
\nand deliver to Landlord all necessary instrument(s) prepared by Landlord (or by
\nthe applicable Underlying Lessor or Mortgagee) in recordable form and otherwise
\nin form reasonably satisfactory to Tenant, sufficient to discharge of record any
\nNon-Disturbance Agreements delivered to Tenant by the holder of any such expired
\nor terminated Mortgage or Underlying Lease, as the case may be), and, in all
\ncases, Tenant shall pay for all costs, taxes and\/or expenses necessary to effect
\nthe recordation of such instrument(s). In the event that Tenant shall fail to
\ncomply with the foregoing sentence, Tenant shall be liable for all Landlord’s
\ndamages, costs and other liability occasioned by such failure.<\/p>\n
ARTICLE 6<\/p>\n
Quiet Enjoyment<\/p>\n
6.01. So long as no Event of Default has occurred and is
\ncontinuing, Tenant shall peaceably and quietly have, hold and enjoy the Premises
\nwithout hindrance, ejection or molestation by Landlord or any person lawfully
\nclaiming through or under Landlord, subject, nevertheless, to the provisions of
\nthis lease. This covenant shall be construed as a covenant running with the
\nLand, and is not, nor shall it be construed as, a personal covenant of Landlord,
\nexcept to the extent of Landlord’s interest in the Real Property and only so
\nlong as such interest shall continue, and thereafter, with respect to the period
\ncommencing on the date Landlord has no interest in the Real Property and ending
\non the date Landlord reacquires an interest therein, Landlord shall be relieved
\nof all liability hereunder and this covenant shall be binding only upon
\nsubsequent successors in interest of Landlord’s interest in this lease, to the
\nextent of their respective interests, as and when they shall acquire the same,
\nand so long as they shall retain such interest.<\/p>\n
ARTICLE 7<\/p>\n
Assignment, Subletting and Mortgaging<\/p>\n
7.01. Except as may be expressly permitted herein, Tenant
\nshall not, whether voluntarily, involuntarily, or by operation of law or
\notherwise, without in each instance obtaining the prior written consent of
\nLandlord: (a) assign in whole or in part or otherwise transfer in whole or in
\npart this lease or the<\/p>\n
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\n 42
\nterm and estate hereby granted, (b) sublet the Premises or any part thereof, or
\nallow the same to be used, occupied or utilized by anyone other than Tenant, (c)
\nmortgage, pledge, encumber or otherwise hypothecate this lease or the Premises
\nor any part thereof or any Tenant’s Improvements in any manner whatsoever, other
\nthan as specifically set forth in Section 11.10, or (d) permit the Premises or
\nany part thereof to be occupied or used for desk space or mailing privileges by
\nany person other than Tenant.<\/p>\n
7.02. (a) If Tenant is a corporation, then a transfer of stock
\n(by a single transfer or by multiple transfers effected pursuant to a common
\nplan) or any other transaction (such as, by way of example, the issuance of
\nadditional stock, the redemption of stock, a stock voting agreement, a change in
\nclasses of stock or a merger or consolidation involving Tenant) which transfer
\nor other transaction results in a change of control of Tenant (or, in the event
\nof a merger or consolidation involving Tenant, a change of control of the
\nresulting corporation), shall be deemed, for all purposes of this Article 7, an
\nassignment of this lease, and if Tenant is a partnership, joint venture or other
\nnon-corporate entity, then a transfer of an interest in the distributions of
\nprofits and losses of such partnership, joint venture or other non-corporate
\nentity (by a single transfer or by multiple transfers effected pursuant to a
\ncommon plan) or any other transaction (such as, by way of example, the creation
\nof partnership interests) which transfer or other transaction results in a
\nchange of control of such partnership, joint venture or other non-corporate
\nentity, shall be deemed, for all purposes of this Article 7, an assignment of
\nthis lease. As used above in this Section 7.02(a), the term “TRANSFER” shall not
\nincludes sales effected through the “over-the-counter market” or through any
\nrecognized stock exchange, unless such sales are effected by persons deemed
\n“insiders” within the meaning of the Securities Exchange Act of 1934, as
\namended. As used herein, the term “CONTROL” shall have the meaning ascribed
\nthereto in Article 31 hereof.<\/p>\n
(b) (1) Notwithstanding the provisions of Section
\n7.02(a) above, the transfers and other transactions which, pursuant to the
\naforesaid provisions, constitute deemed assignments of this lease, shall
\nnevertheless be permitted hereunder (without the consent of Landlord) if (i)
\nimmediately after such deemed assignment, Tenant (which, in the event of a
\nmerger or consolidation involving Tenant, is the resulting corporation) has a
\nnet worth computed in accordance with generally accepted accounting principles
\nconsistently applied which is not less than the Minimum Net Worth (as
\nhereinafter defined), and (ii) such transfer or other transaction is effected
\nfor legitimate business purposes, and not primarily for the purpose of
\ntransferring this lease.<\/p>\n
(2) Tenant shall have the right, without the consent
\nof Landlord, to assign its interest in this lease to any person acquiring, by
\npurchase or other transfer, all or substantially all of Tenant’s assets provided
\nthat (i) such purchase or other transfer is effected for legitimate business
\npurposes, and not primarily for the purpose of transferring this lease and (ii)
\nimmediately after such assignment, the purchaser or other transferee, as the
\ncase may be, has a net worth computed in accordance with generally accepted
\naccounting principles consistently applied which is not less than the Minimum
\nNet Worth.<\/p>\n
(3) Within ten (10) after any deemed assignment or
\nassignment permitted by this Section 7.02(b) without Landlord’s consent, Tenant
\n(which, in the event of a merger or consolidation involving Tenant, is the
\nresulting corporation, and, in the event of an assignment pursuant to Section
\n7.02, is the purchaser or other transferee) shall furnish Landlord with (i)
\nproof reasonably satisfactory to Landlord that<\/p>\n
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\n 43
\nits net worth exceeds the Minimum Net Worth, and (ii) a written description of
\nthe transaction and a duplicate original instrument of the assignment, or
\nequivalent instrument, effecting the assignment, or deemed assignment, of this
\nlease, as the case may be.<\/p>\n
(4) The term “MINIMUM NET WORTH” shall mean (i) with
\nrespect to any deemed assignment or assignment made during the initial term of
\nthis lease, a net worth, computed in accordance with generally accepted
\naccounting principles, equal to eighteen (18) times the sum of the aggregate of
\nthe Fixed Rent due and payable over the last twelve (12) months of the initial
\nterm of this lease (computed without regard to any abatements, credits or
\noffsets applicable thereto and without regard to any expansion rights
\nunexercised as of the date of such assignment or deemed assignment), or (ii)
\nwith respect to any deemed assignment or assignment made during any Renewal Term
\n(as hereinafter defined), a net worth, computed in accordance with generally
\naccepted accounting principles, equal to eighteen (18) times the sum of the
\naggregate of the Fixed Rent due and payable over the last twelve (12) months of
\nsuch Renewal Term (computed without regard to any abatements, credits or offsets
\napplicable thereto and without regard to any expansion rights unexercised as of
\nthe date of such assignment or deemed assignment).<\/p>\n
(c) (1) Notwithstanding anything to the contrary contained
\nherein, Tenant, without any need to obtain Landlord’s consent, may sublet the
\nwhole or any portion of the Premises to any person that, at the time of the
\nmaking of such sublease, is an Affiliate of Tenant, provided, that, at the time
\nsuch sublease is made, Tenant has no intention of effecting or permitting a
\ntransfer of control of such Affiliate of Tenant. Within ten (10) days of the
\ncommencement date of any such sublease, Tenant shall furnish Landlord with a
\nduplicate original instrument thereof duly executed by Tenant and the subtenant.<\/p>\n
(2) Notwithstanding anything to the contrary contained
\nherein, if any person purchases or otherwise acquires a GS Business Unit (as
\nhereinafter defined), then Original Tenant, without any need to obtain
\nLandlord’s consent, may sublet to such person all or any portion of the Premises
\nwhich, prior to such purchase or acquisition, was occupied, exclusively or
\nprimarily, by such GS Business Unit, provided, that (i) such GS Business Unit
\nshall have been occupying space in the Premises for a period of at least one (1)
\nyear prior to such purchase or other acquisition, (ii) such sublease shall be
\nmade together with such purchase or other acquisition, and (iii) immediately
\nafter such purchase or other acquisition, Original Tenant shall have a net worth
\ncomputed in accordance with generally accepted accounting principles
\nconsistently applied which is not less the Minimum Net Worth. The term “GS
\nBUSINESS UNIT” shall mean any discernable and on-going part of the business
\nwhich Original Tenant and\/or Affiliates of Original Tenant conducts at the
\nPremises (whether or not organized as a separate legal entity). A person shall
\nbe deemed to have purchased or otherwise acquired a GS Business Unit only if
\nsuch person shall purchase or otherwise acquire all or substantially all of the
\nTenant’s Property used by such GS Business Unit immediately prior to such
\npurchase or other acquisition and, immediately after such purchase or other
\nacquisition, shall employ, or seek to employ, all or substantially all of the
\nemployees of such GS Business Unit immediately prior to such purchase or other
\nacquisition. For purposes of this Section 7.02(c)(2), a person which “purchases
\nor otherwise acquires a GS Business Unit” shall include, without limitation, an
\nAffiliate of Original Tenant (whether pre-existing or newly formed) which
\nacquires a GS Business Unit, even in a case where Original Tenant has an
\nintention of effecting or permitting a transfer of control of such Affiliate
\nimmediately after such acquisition. Within ten (10) days of the commencement
\ndate of any such sublease, Original<\/p>\n
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\n 44
\nTenant shall furnish Landlord with a duplicate original instrument thereof duly
\nexecuted by Original Tenant and the subtenant.<\/p>\n
(d) (1) The terms and provisions of Section 7.02(a)
\nshall be deemed to apply, mutatis mutandis, to any permitted subtenant of Tenant
\nwith respect to the assignment or deemed assignment of such subtenant’s
\nsublease.<\/p>\n
(2) The terms and provisions of Section 7.02(b)
\nhereof shall be deemed to apply, mutatis mutandis, to any permitted subtenant of
\nTenant with respect to the assignment or deemed assignment of such subtenant’s
\nsublease, except that the subtenant’s assignee or deemed assignee need not
\ncomply with the provisions thereof relating to net worth; provided, however,
\nthat such terms and provisions shall not apply to permit any such assignment or
\ndeemed assignment, if, immediately prior to such assignment or deemed
\nassignment, the subtenant is an Affiliate of Tenant, unless, immediately after
\nsuch assignment or deemed assignment, Tenant has a net worth computed in
\naccordance with generally accepted accounting principles consistently applied
\nwhich is not less the Minimum Net Worth.<\/p>\n
(3) The terms and provisions of Section 7.02(c)(1)
\nhereof shall apply, mutatis mutandis, to any permitted subtenant of Tenant with
\nrespect to the undersubletting of all or any part of the sublease premises to
\nAffiliates of such subtenant; provided, however, that such terms and provisions
\nshall not apply to any undersubletting by a subtenant that, at the time of the
\nmaking of such undersubletting, is an Affiliate of Tenant.<\/p>\n
7.03. If this lease shall be assigned, whether or not in
\nviolation of the provisions of this lease, Landlord may collect rent from the
\nassignee. If the Premises or any part thereof are sublet or used or occupied by
\nanybody other than Tenant, whether or not in violation of this lease, Landlord
\nmay, after default by Tenant, and expiration of Tenant’s time to cure such
\ndefault, collect rent from the subtenant or occupant. In either event, Landlord
\nshall apply the net amount collected to the Fixed Rent and Additional Charges
\nherein reserved, but no such assignment, subletting, occupancy or collection
\nshall be deemed a waiver of any of the provisions of Section 7.01, or the
\nacceptance of the assignee, subtenant or occupant as tenant, or a release of
\nTenant from the performance by Tenant of Tenant’s obligations under this lease.
\nThe consent by Landlord to a particular assignment, mortgaging, subletting or
\nuse or occupancy by others shall not in any way be considered a consent by
\nLandlord to any other or further assignment, mortgaging or subletting or use or
\noccupancy by others not expressly permitted by this Article. References in this
\nlease to use or occupancy by others (that is, anyone other than Tenant) shall
\nnot be construed as limited to subtenants and those claiming under or through
\nsubtenants but shall also include licensees and others claiming under or through
\nTenant, immediately or remotely.<\/p>\n
7.04. Any assignment or deemed assignment, whether made with
\nLandlord’s consent pursuant to the provisions of this Article 7, or without the
\nneed of Landlord’s consent pursuant to this Section 7.02 hereof, shall be made
\nonly if, and shall not be effective until, the entity owning the Tenant’s
\ninterest in this lease following such assignment or deemed assignment shall
\nexecute, acknowledge and deliver to Landlord an agreement in the form of Exhibit
\nG hereto whereby such entity shall:<\/p>\n
(a) assume the obligations of this lease on the
\n part of Tenant to be performed or observed as of the effective
\n date of the assignment or deemed assignment (except, that, in
\n the case of any assignment or deemed assignment effected
\n pursuant to Section 7.02<\/p>\n
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\n 45
\n hereof without the need of Landlord’s consent, such assumption
\n shall be effective as of the Commencement Date); and<\/p>\n
(b) agree that the provisions in Article 7
\n shall, notwithstanding such assignment or transfer, continue
\n to be binding upon it in respect of all future assignments and
\n deemed assignments;<\/p>\n
provided, however, that, in the case of any deemed assignment, no such
\ninstrument shall be required if the entity owning the Tenant’s interest in this
\nlease following such deemed assignment shall be the same as the entity owning
\nthe Tenant’s interest in this lease prior to such deemed assignment. Tenant
\ncovenants that, notwithstanding any assignment or deemed assignment, whether or
\nnot in violation of the provisions of this lease, and notwithstanding the
\nacceptance of Fixed Rent and\/or Additional Charges by Landlord from any
\nassignee, or any other party, Tenant shall remain fully liable for the payment
\nof the Fixed Rent and Additional Charges and for the performance and observance
\nof other obligations of this lease on the part of Tenant to be performed or
\nobserved.<\/p>\n
7.05. The joint and several liability of Tenant and any
\nimmediate or remote successor in interest of Tenant and the due performance of
\nthe obligations of this lease on Tenant’s part to be performed or observed shall
\nnot be discharged, released or impaired in any respect by any agreement or
\nstipulation made by Landlord extending the time of, or modifying any of the
\nobligations of, this lease, or by any waiver or failure of Landlord to enforce
\nany of the obligations of this lease. Notwithstanding the foregoing, if this
\nlease shall be assigned, the assignor Tenant shall not thereafter be liable with
\nrespect to any obligations of Tenant to the extent that the same arise out of
\nany modification of this lease effected after the effective date of such
\nassignment.<\/p>\n
7.06. The listing of any name other than that of Tenant,
\nwhether on the doors of the Premises or the Building directory, or otherwise,
\nshall not operate to vest any right or interest in this lease or in the
\nPremises, nor shall it be deemed to be the consent of Landlord to any assignment
\nor deemed assignment of this lease or to any sublease of the Premises or to the
\nuse or occupancy thereof by others.<\/p>\n
7.07. (a) Notwithstanding anything to the contrary contained
\nin this Article, if Tenant shall at any time or times during the term of this
\nlease desire to assign this lease or sublet all or part of the Premises (other
\nthan (i) an assignment, or deemed assignment, pursuant to Section 7.02(b) for
\nwhich Landlord’s consent is not required, (ii) a sublease pursuant to Section
\n7.02(c) for which Landlord’s consent is not required, or (iii) a Short-Term
\nSublease (as hereinafter defined)), Tenant shall give notice thereof to
\nLandlord, which notice (“TENANT’S INITIAL NOTICE”) shall contain all of the
\nfollowing terms and conditions:<\/p>\n
(1) in the case of a desired assignment, (i) the desired
\n effective date thereof (which desired effective date shall not be not
\n more than eighteen (18) months after the date Landlord receives
\n Tenant’s Initial Notice (or, if the Premises, as of the date of such
\n Tenant’s Initial Notice, consist of less than 100,000 rentable square
\n feet, not more than twelve (12) months after the date Landlord receives
\n Tenant’s Initial Notice)), (ii) the total amount of all sums and other
\n consideration, if any, that Tenant in good faith, contemplates
\n receiving from a prospective third party assignee in consideration of
\n such assignment (assuming there will be no Excess Tenant Property
\n Payments (as hereinafter defined) in connection with such assignment),<\/p>\n
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\n 46
\n (iii) the nature and amount of all tenant inducements (such as, by way
\n of example only, direct payments, work allowances and workletters), if
\n any, that Tenant, in good faith, contemplates being required to grant a
\n prospective third party assignee, and (iv) Tenant’s reasonably detailed
\n computation of the Net Effective Assignment Price (as hereinafter
\n defined) or the Net Effective Assignment Payment (as hereinafter
\n defined), as the case may be, for the desired assignment set forth in
\n such Tenant’s Initial Notice; and<\/p>\n
(2) in the case of a desired sublease, (i) the desired
\n commencement date of such desired sublease (it being agreed that such
\n desired commencement date (x) in the case of a desired sublease of an
\n area consisting of less than 100,000 rentable square feet, shall not be
\n more than twelve (12) months after the date Landlord receives Tenant’s
\n Initial Notice, and (y) in the case of a desired sublease of an area
\n consisting of 100,000 rentable square feet or more, shall be not more
\n than eighteen (18) months after the date Landlord receives Tenant’s
\n Initial Notice), and the desired expiration date of such desired
\n sublease (it being agreed that no Tenant’s Initial Notice shall set
\n forth or contemplate any renewal, extension, termination or other
\n options whereby the term of the desired sublease could be shortened or
\n lengthened), (ii) a description of the portion of the Premises that
\n Tenant desires to sublease, including a floor plan delineating the same
\n (it being agreed that no Tenant’s Initial Notice shall set forth or
\n contemplate any expansion, contraction or other option or provision
\n whereby the space to be demised under the desired sublease will or
\n could be enlarged or reduced at anytime during the term of the desired
\n sublease), (iii) all rent, additional rent and other consideration
\n (including without limitation all rent and additional rent payable with
\n respect to taxes, operating expenses and other “pass-through” expenses,
\n including, if applicable, information as to base years or amounts, and
\n rent concessions) which Tenant, in good faith, contemplates receiving
\n from a prospective third party subtenant in respect of the desired
\n sublease (assuming there will be no Excess Tenant Property Payments in
\n connection with such desired sublease) (it being agreed that each
\n Tenant’s Initial Notice shall set forth a fixed rent which is payable
\n in equal monthly amounts throughout the term of the desired sublease,
\n except that, at Tenant’s option, a Tenant’s Initial Notice may set
\n forth a period, prior to the first such monthly payment, during which
\n such fixed rent would abate), (iv) the nature and amount of all tenant
\n inducements (such as, by way of example only, direct payments, work
\n allowances and workletters), if any, that Tenant, in good faith,
\n contemplates being required to offer a prospective third party
\n subtenant in respect of the desired sublease, and (v) Tenant’s
\n reasonably detailed computation of the Net Effective Sublease Rental
\n (as hereinafter defined) for the desired sublease set forth in such
\n Tenant’s Initial Notice (together, if applicable, with a statement
\n setting forth any assumptions made by Tenant in computing such Net
\n Effective Sublease Rental, including without limitation any assumptions
\n made with respect to future taxes, operating expenses and other
\n “pass-through” expenses, all of which assumptions shall be reasonable).<\/p>\n
As used herein, the following terms shall have the following meanings:<\/p>\n
(A) The term “NET EFFECTIVE ASSIGNMENT PRICE” shall mean,
\nwith respect to any desired assignment set forth in a Tenant’s Initial Notice or
\nany proposed assignment set forth in a Tenant’s Proposal Notice (as hereinafter
\ndefined), the excess, if any, of (I) the net present value, determined as of<\/p>\n
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\n 47
\nthe effective date of the desired or proposed assignment using a discount rate
\nof 10% per annum, of all sums and other consideration to be paid by the assignee
\nin respect of the desired or proposed assignment (as well as, in the case of any
\nproposed assignment, any Excess Tenant Property Payments in connection
\ntherewith), discounted from the date that any such payment(s) are to be made
\nunder the desired or proposed assignment to the effective date of such desired
\nor proposed assignment, over (II) the net present value, determined as of the
\neffective date of the desired or proposed assignment using a discount rate of
\n10% per annum, of all tenant inducements (such as, by way of example only,
\ndirect payments, work allowances and workletters) to be paid or incurred by
\nassignor to assignee in respect of such desired or proposed assignment,
\ndiscounted from the date that such tenant inducements are to be paid or incurred
\nunder the desired or proposed assignment to the effective date of such desired
\nor proposed assignment.<\/p>\n
(B) The term “NET EFFECTIVE ASSIGNMENT PAYMENT” shall mean,
\nwith respect to any desired assignment set forth in a Tenant’s Initial Notice or
\nany proposed assignment set forth in a Tenant’s Proposal Notice, the excess, if
\nany, of (I) the net present value, determined as of the effective date of the
\ndesired or proposed assignment using a discount rate of 10% per annum, of all
\ntenant inducements (such as, by way of example only, direct payments, work
\nallowances and workletters) to be paid or incurred by assignor to assignee in
\nrespect of such desired or proposed assignment, discounted from the date that
\nsuch tenant inducements are to be paid or incurred under the desired or proposed
\nassignment to the effective date of such desired or proposed assignment, over
\n(II) the net present value, determined as of the effective date of the desired
\nor proposed assignment using a discount rate of 10% per annum, of the aggregate
\nof all sums and other consideration to be paid by the assignee in respect of the
\ndesired or proposed assignment (as well as, in the case of any proposed
\nassignment, any Excess Tenant Property Payments in connection therewith),
\ndiscounted from the date that any such payment(s) are to be made under the
\ndesired or proposed assignment to the effective date of such desired or proposed
\nassignment.<\/p>\n
(C) The term “NET EFFECTIVE SUBLEASE RENTAL” shall mean,
\nwith respect to any desired sublease set forth in a Tenant’s Initial Notice or
\nproposed sublease set forth in a Tenant’s Proposal Notice, the monthly amount
\nper rentable square foot, equal to the quotient obtained by dividing (I) the
\nquotient obtained by dividing (i) the excess of (x) the net present value,
\ndetermined as of the commencement date of the desired or proposed sublease using
\na discount rate of 10% per annum, of the aggregate of all rent, additional rent
\nand other consideration payable under the desired or proposed sublease (as well
\nas, in the case of a proposed sublease, any Excess Tenant Property Payments in
\nconnection therewith), discounted from the dates that such payments are to be
\nmade under the desired or proposed sublease to the commencement date of such
\ndesired or proposed sublease, over (y) the net present value of all tenant
\ninducements (such as, by way of example only, direct payments, work allowances
\nand workletters) to be paid or incurred to the subtenant under the desired or
\nproposed sublease, discounted, using a discount rate of 10% per annum, from the
\ndate that such tenant inducements are to be paid or incurred under the desired
\nor proposed sublease to the commencement date of such desired or proposed
\nsublease, by (ii) the number of calendar months (rounded to the nearest one-half
\nmonth) within the term of such desired or proposed sublease, by (II) the number
\nof rentable square feet in the area to be demised by such desired or proposed
\nsublease. With respect to the application of the foregoing, it is agreed that
\nthe Net Effective Sublease Rental of a proposed sublease set forth in a Tenant’s
\nProposal Notice shall be determined solely with reference to the initial term of
\nsuch proposed sublease,<\/p>\n
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\n 48
\ni.e., without regard to any renewal term pertinent to any Qualified Sublease
\nRenewal Provision (as hereinafter defined) set forth in such Tenant’s Proposal
\nNotice.<\/p>\n
(b) Each Tenant’s Initial Notice shall be deemed an
\noffer from Tenant to Landlord, whereby Landlord may, at its option, (i)
\nterminate this lease, in the case of (x) a desired assignment or (y) a desired
\nsublease of an area comprising 90% or more of the rentable area of the Premises,
\nor (ii) terminate this lease with respect to the desired sublease area, in the
\ncase of a desired sublease. Said option(s) (“LANDLORD’S RECAPTURE OPTIONS”) may
\nbe exercised by Landlord by giving notice to Tenant at any time within the
\nperiod (the “OPTION PERIOD”) of thirty (30) days after Landlord’s receipt of
\nTenant’s Initial Notice.<\/p>\n
(c) No Tenant’s Initial Notice (or series of Tenant’s
\nInitial Notices) shall contemplate a sublease (or series of subleases) which is
\n(or are) intentionally structured in a manner which is designed to frustrate
\nLandlord’s rights hereunder with respect to its Recapture Options. Without
\nlimiting the generality of the foregoing, if any Tenant’s Initial Notice shall
\nset forth a desired sublease of less than all of the Premises located on any
\nPremises Floor, then each of the desired sublease premises and the remaining
\nbalance of such Premises Floor shall consist solely of one or more Rentable
\nBlocks. The term “RENTABLE BLOCK” shall mean any contiguous block of not less
\nthan 10,000 rentable square feet which, taking into account its size, location
\nand configuration, can be leased as office space to willing office tenants in
\naccordance with applicable laws and requirements of public authorities.<\/p>\n
(d) If, at the time it delivers Tenant’s Initial Notice,
\nTenant is then negotiating with any specific potential assignees or subtenants,
\nthen Tenant shall set forth in Tenant’s Initial Notice (A) the name and address
\nof each such potential assignee or subtenant, and (B) a reasonably detailed
\ndescription of the nature and character of the business of each such potential
\nassignee or subtenant. In addition, if a sublease, letter of intent or similar
\nwriting has theretofore been executed (all of which writings must be conditioned
\nupon both Landlord not exercising any of its applicable Recapture Options and
\nLandlord granting its consent hereunder), then Tenant shall deliver a copy of
\nthe same to Landlord with the Tenant’s Initial Notice; and, if such a sublease,
\nletter or similar writing is thereafter executed prior to the end of the Option
\nPeriod, then Tenant shall deliver a copy of the same to Landlord promptly after
\nthe same is executed.<\/p>\n
7.08. (a) If Landlord exercises Landlord’s Recapture Option
\nset forth in Section 7.07(b)(i) to terminate this lease, then, this lease shall
\nend and expire on (i) in the case of desired assignment, the later to occur of
\n(x) the date which is twelve (12) months after the date that Landlord received
\nthe Tenant’s Initial Notice setting forth such desired assignment (or, if the
\nPremises, as of the date of such Tenant’s Initial Notice, consisted of (I) less
\nthan 100,000 rentable square feet but more than space located solely on a single
\nPremises Floor, then the date six (6) months after the date Landlord received
\nsuch Tenant’s Initial Notice, or (II) space located solely on a single Premises
\nFloor, then the date four (4) months after the date Landlord received such
\nTenant’s Initial Notice), and (y) the effective date of the desired assignment
\nset forth in such Tenant’s Initial Notice, or (ii) in the case of a desired
\nsublease, the later to occur of (A) the date which is twelve (12) months after
\nthe date that Landlord received the Tenant’s Initial Notice setting forth such
\ndesired sublease (or, if the Premises, as of the date of such Tenant’s Initial
\nNotice, consisted of (X) less than 100,000 rentable square feet but more than
\nspace located solely on a single Premises Floor, the date six (6)<\/p>\n
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\n 49
\nmonths after the date Landlord received such Tenant’s Initial Notice, or (Y)
\nspace located solely on a single Premises Floor, the date four (4) months after
\nthe date Landlord received such Tenant’s Initial Notice), and (B) the
\ncommencement date of the desired sublease set forth in such Tenant’s Initial
\nNotice; and, in each such case, the Fixed Rent and Additional Charges shall be
\npaid and apportioned to the date of such termination.<\/p>\n
(b) If Landlord exercises Landlord’s Recapture Option
\nset forth in Section 7.07(b)(ii) to terminate this lease with respect to the
\ndesired sublease area set forth in a Tenant’s Initial Notice, then (i) this
\nlease shall end and expire with respect to such desired sublease area on the
\nlater to occur of (A) either (x) in the event that such desired sublease area
\nconsists solely of space which is located on a single Premises Floor, the date
\nwhich is four (4) months after the date that Landlord received such Tenant’s
\nInitial Notice, (y) in the event that such desired sublease area consists of
\nmore than solely space which is located on a single Premises Floor, but consists
\nof less than 100,000 rentable square feet in the aggregate, the date which is
\nsix (6) months after the date that Landlord received such Tenant’s Initial
\nNotice, or (z) in the event that such desired sublease area consists of more
\nthan 100,000 rentable square feet in the aggregate, the date which is twelve
\n(12) months after the date that Landlord received such Tenant’s Initial Notice,
\nand (B) the commencement date of the desired sublease as set forth in such
\nTenant’s Initial Notice (any such area being hereinafter referred to as
\n“RECAPTURED SPACE”), (ii) from and after such date the Fixed Rent and Additional
\nCharges shall be adjusted, based upon the proportion that the rentable area of
\nthe Premises remaining after the deletion of the Recaptured Space bears to the
\ntotal rentable area of the Premises prior to the deletion of the Recaptured
\nSpace, and (iii) Landlord shall physically separate the Recaptured Space from
\nthe balance of the Premises and in comply with any laws and requirements of any
\npublic authorities relating to such separation, and Tenant, thereafter upon
\ndemand, shall pay to Landlord, as Additional Charges hereunder, an amount equal
\nto one-half (1\/2) the actual out-of-pocket costs incurred by Landlord in
\nphysically separating such Recaptured Space from the balance of the Premises,
\nand in complying with any laws and requirements of any public authorities
\nrelating to such separation.<\/p>\n
(c) If (i) any Recaptured Space constitutes less than
\nthe entire rentable area on any Premises Floor, and portions of the Premises
\nremain on such Premises Floor, and (ii) Landlord thereafter leases such
\nRecaptured Space to one or more tenants, then Tenant, as applicable, shall (x)
\nin any case where the Recaptured Space is not appurtenant to the Building’s
\npassenger elevator lobby located on such Premises Floor or the Building’s
\nfreight elevator lobby located on such Premises Floor, provide such tenants of
\nLandlord with ingress and egress to and from such passenger and freight elevator
\nlobbies, and (y) in all cases, provide such tenants with ingress and egress to
\nand from, and with the use of, the Core Lavatories located on such Premises
\nFloor.<\/p>\n
7.09. (a) If, in any case that Landlord has received a
\nTenant’s Initial Notice and Landlord has not exercised any of its Recapture
\nOptions within the Option Period, Tenant, thereafter, continues to desire to
\nassign this lease or to sublease all or a portion of the Premises as set forth
\nin such Tenant’s Initial Notice, then Tenant, no later than the Post-Option
\nSubmission Deadline Date (as hereinafter defined) with respect to such Tenant’s
\nInitial Notice, may submit to Landlord one or more Tenant’s Proposal Notices (as
\nhereinafter defined), each describing either a proposed assignment (in any case
\nthat the Tenant’s Initial Notice set forth a desired assignment) or a proposed
\nsublease (in any case that the Tenant’s Initial Notice set forth a desired
\nsublease). As used herein, the term “POST-<\/p>\n
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\n 50
\nOPTION SUBMISSION DEADLINE DATE”, with respect to any Tenant’s Initial Notice,
\nshall be the date that is one hundred twenty (120) days after the effective date
\nof the desired assignment set forth in such Tenant’s Initial Notice or the
\ncommencement date of the desired sublease set forth in such Tenant’s Initial
\nNotice, as the case may be.<\/p>\n
(b) In any case that Tenant desires to enter
\ninto a Short-Term Sublease (and, accordingly, Tenant is not obligated under
\nSection 7.07 hereof to submit a Tenant’s Initial Notice), Tenant (without first
\nsubmitting a Tenant’s Initial Notice) may submit to Landlord a Tenant’s Proposal
\nNotice describing a proposed Short-Term Sublease. The term “SHORT-TERM SUBLEASE”
\nshall mean a sublease which will expire prior to the date that is eighteen (18)
\nmonths prior to the Then Current Expiration Date (as of the execution of such
\nsublease); it being understood that a Short-Term Sublease may include one or
\nmore renewal or extension options, provided, that, in the event that all such
\nrenewal and extension options are exercised, such sublease will still expire
\nprior to the date that is eighteen (18) months prior to the Then Current
\nExpiration Date (as of the execution of such sublease).<\/p>\n
(c) A “TENANT’S PROPOSAL NOTICE” shall be a
\nnotice from Tenant to Landlord setting forth a proposed assignment or sublease
\nand requesting Landlord’s consent thereto, which notice shall have been rendered
\npursuant to either Section 7.09(a) or Section 7.09(b) above, and shall comply
\nwith all the provisions of this Section 7.09. Each Tenant’s Proposal Notice
\nshall set forth (i) the name and address of the proposed assignee or subtenant,
\n(ii) the effective date of the proposed assignment or the commencement date and
\nexpiration date of the proposed sublease (it being agreed that no proposed
\nsublease, other than a proposed Short-Term Sublease, described in a Tenant’s
\nProposal Notice shall include or contemplate any renewal, extension, termination
\nor other option whereby the term of the proposed sublease will or could be
\nshortened or lengthened, except for one or more Qualified Sublease Renewal
\nProvisions (as hereinafter defined) with respect to such proposed sublease),
\n(iii) in the case of a proposed sublease, a description of the portion of the
\nPremises to be sublet (including a floor plan) and its proposed use (it being
\nagreed that no proposed sublease, other than a proposed Short-Term Sublease,
\ndescribed in a Tenant’s Proposal Notice shall include or contemplate any
\nexpansion, contraction or other option or provision whereby the space to be
\ndemised under the proposed sublease will or could be enlarged or reduced at
\nanytime during the term of the proposed sublease), (iv) the economic terms of
\nthe proposed assignment or sublease, which shall include (x) in the case of a
\nproposed assignment, the sums and other consideration, if any, payable to Tenant
\nin respect of the assignment, and the nature and amount of all tenant
\ninducements to be paid or incurred to the proposed assignee (and, if applicable,
\nany Excess Tenant Property Payments payable in connection with such proposed
\nassignment), and (y) in the case of a proposed sublease, all rent, additional
\nrent and other consideration (including without limitation all rent and
\nadditional rent with respect to taxes, operating expenses and other
\n“pass-through” expenses, including, if applicable, information as to base years
\nor amounts and rent concessions) payable to Tenant under the proposed sublease,
\nand the nature and amount of all tenant inducements to be paid or incurred to
\nthe proposed subtenant (and, if applicable, any Excess Tenant Property Payments
\npayable in connection with such proposed sublease). The term “QUALIFIED SUBLEASE
\nRENEWAL PROVISION”, with respect to any proposed sublease, shall mean (I) any
\noption provision contained in the original form of such proposed sublease
\n(exercisable by the subtenant under the proposed sublease or Tenant, as
\nsublandlord, under the proposed sublease) to extend the term of such proposed
\nsublease, or (II) any provision contained in the original form of such proposed<\/p>\n
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\n 51
\nsublease which provides that the term thereof shall be automatically deemed
\nextended upon a renewal of this lease; provided, however, that no such option or
\nprovision in any proposed sublease shall be deemed a “Qualified Sublease Renewal
\nProvision” unless (X) the first renewal term pertinent to any such option or
\nprovision contained in such proposed sublease shall commence on, or on the first
\nday after, the Then Current Expiration Date (as of the execution of the proposed
\nsublease), (Y) during the renewal term pertinent to all such options or
\nprovisions contained in such proposed sublease, the sublease rent shall be equal
\nto the per annum per rentable square foot rate of Fixed Rent, Tax Payments and
\nOperating Expenses payable under this lease during such renewal term, and (Z)
\neach such option or provision shall be expressly conditioned upon the renewal of
\nthis lease for the full duration the renewal term pertinent thereto. Each
\nTenant’s Proposal Notice shall be accompanied by (A) a conformed or photostatic
\nexecuted copy of the proposed assignment agreement or sublease (it being
\nunderstood that the effectiveness of the proposed assignment contemplated by the
\nassignment agreement or the commencement of the proposed sublease, as the case
\nmay be, shall be expressly conditioned, in such assignment agreement or proposed
\nsublease, upon Landlord granting its consent to the proposed assignment or
\nproposed sublease in accordance with this Article 7 (which express condition of
\nLandlord’s consent, with respect to any proposed assignment or sublease, is
\nherein called the “CONSENT CONDITION”)), (B) a reasonably detailed description
\nof the nature and character of the business of the proposed subtenant or
\nassignee, and reasonably detailed character references for such proposed
\nassignee or subtenant, and (C) with respect to any assignment, reasonably
\ndetailed financial references with respect to the proposed assignee and current
\nfinancial information with respect to the proposed assignee, including, without
\nlimitation, its most recent balance sheet and income statements certified by its
\nchief financial officer, or, if available, a certified public accountant, to the
\nextent available to Tenant. Each Tenant’s Proposal Notice shall expressly
\nrequest Landlord’s consent to the proposed assignment or sublease set forth
\ntherein and shall include, on the first page thereof, in capital letters the
\nfollowing legend: AS MORE FULLY SET FORTH IN SECTION 7.10 OF THE LEASE,
\nLANDLORD’S FAILURE TO RESPOND TO THIS NOTICE WITHIN FIFTEEN (15) BUSINESS DAYS
\nOF ITS SUBMISSION TO LANDLORD MAY RESULT IN LANDLORD BEING DEEMED TO HAVE
\nCONSENTED TO THE PROPOSED ASSIGNMENT OR SUBLEASE DESCRIBED HEREIN.<\/p>\n
(d) Each Tenant’s Proposal Notice that is
\nsubmitted pursuant to Section 7.09(a) prior to the Post-Option Submission
\nDeadline Date, shall also include Tenant’s reasonably detailed computation of
\nthe Net Effective Assignment Price or Net Effective Assignment Payment, as
\napplicable, with respect to the proposed assignment set forth in such Tenant’s
\nProposal Notice, or the Net Effective Sublease Rental with respect to the
\nproposed sublease set forth in such Tenant’s Proposal Notice (which Net
\nEffective Sublease Rental shall be computed using the same assumptions as were
\nreasonably set forth in the applicable Tenant’s Initial Notice with respect to
\nthe desired sublease set forth therein). It shall be condition precedent to
\nTenant’s right to proceed with the proposed assignment or proposed sublease set
\nforth in any such Tenant’s Proposal Notice that such proposed assignment or
\nsublease satisfy the following conditions:<\/p>\n
(i) (x) the effective date of any such proposed
\n assignment (it being agreed that, for purposes of determining such
\n effective date, the Consent Condition with respect to such assignment
\n shall be deemed satisfied on the date Landlord receives Tenant’s
\n Proposal Notice) shall be no more than one hundred twenty (120) days
\n before or after the effective date of the desired assignment set forth
\n in the applicable Tenant’s Initial Notice, and (y) the commencement
\n date of any proposed sublease (it being agreed that, for<\/p>\n
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\n 52
\n purposes of determining such commencement date, the Consent Condition
\n with respect to such sublease shall be deemed satisfied on the date
\n Landlord receives Tenant’s Proposal Notice) shall be no more than one
\n hundred twenty (120) days before or after the commencement date of the
\n desired sublease set forth in the applicable Tenant’s Initial Notice;<\/p>\n
(ii) in the case of a proposed sublease, the
\n space proposed to be sublet shall not be materially different in size
\n (i.e., larger or smaller by more than 5%), and, except for the
\n foregoing size differential, shall not be in a different location, than
\n the desired sublease area set forth in the applicable Tenant’s Initial
\n Notice;<\/p>\n
(iii) in the case of a proposed sublease, the
\n expiration date of the sublease term (determined without regard to any
\n renewal terms pertinent to any Qualified Sublease Renewal Provisions)
\n shall not be materially earlier or later (i.e., earlier or later by
\n more than (x) three (3) months, if the sublease term of such proposed
\n sublease is five (5) years or less, or (y) six (6) months, if the
\n sublease term of such proposed sublease is longer than five (5) years)
\n than the desired expiration date set forth in the applicable Tenant’s
\n Initial Notice; and<\/p>\n
(iv) (x) in the case of a proposed sublease, the
\n Net Effective Sublease Rental of the proposed sublease shall be equal
\n to or greater than 92-1\/2% of the Net Effective Sublease Rental of the
\n desired sublease set forth in the Tenant’s Initial Notice, or (y) in
\n the case of a proposed assignment, either (1) both such proposed
\n assignment and the desired assignment set forth in the applicable
\n Tenant’s Initial Notice shall reflect a Net Effective Assignment Price
\n and the Net Effective Assignment Price of such proposed assignment
\n shall be equal to or greater than 92-1\/2% of the Net Effective
\n Assignment Price of such desired assignment, or (2) both such proposed
\n assignment and the desired assignment set forth in the applicable
\n Tenant’s Initial Notice shall reflect a Net Effective Assignment
\n Payment and the Net Effective Assignment Payment of such proposed
\n assignment shall be equal to or less than 107-1\/2% of the Net Effective
\n Assignment Payment of such desired assignment, or (3) neither such
\n proposed assignment nor the desired assignment set forth in the
\n applicable Tenant’s Initial Notice shall reflect a Net Effective
\n Assignment Price or a Net Effective Assignment Payment.<\/p>\n
In any case that a proposed assignment or sublease does not meet the foregoing
\nconditions, Tenant shall not have the right to render a Tenant’s Proposal Notice
\nwith respect thereto, and any purported Tenant’s Proposal Notice rendered
\npursuant thereto shall be null and void and Landlord need not consider the same.<\/p>\n
(e) If, in any case where a Tenant’s Initial
\nNotice is required under Section 7.07 and delivered in accordance therewith, (i)
\nLandlord fails to exercise any of its Recapture Options under Section 7.07, and
\n(ii) Tenant fails to submit a complying Tenant’s Proposal Notice on or before
\nthe Post-Option Submission Deadline Date, then Tenant shall again comply with
\nall of the provisions and conditions of Section 7.07, if applicable, before
\nassigning this lease or subletting all or part of the Premises.<\/p>\n
7.10. If Tenant shall have complied with the provisions of
\nSections 7.07, if applicable, and Tenant shall have submitted a Tenant’s
\nProposal Notice in accordance, and shall have otherwise complied, with Section
\n7.09, then Landlord’s consent to the proposed assignment or sublease set forth
\nin a<\/p>\n
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\n 53
\nTenant’s Proposal Notice shall not be unreasonably withheld, provided and upon
\ncondition that:<\/p>\n
(a) the proposed assignee or subtenant is
\n engaged in a business which is in keeping with the then standards of
\n the Building;<\/p>\n
(b) the proposed assignee or subtenant is a
\n reputable person or entity in keeping with the then standards of the
\n Building;<\/p>\n
(c) the proposed assignee or subtenant (or any
\n person or entity which, directly or indirectly, controls, is controlled
\n by, or is under common control with, the proposed assignee or
\n subtenant) shall not then be an occupant of any part of the Building;
\n provided, however, that this clause (c) shall not apply to a proposed
\n subtenant that, at the time Landlord receives the Tenant’s Proposal
\n Notice, is an existing subtenant of Tenant unless immediately prior to
\n becoming an existing subtenant of Tenant such proposed subtenant was an
\n existing direct tenant of Landlord;<\/p>\n
(d) the proposed assignee or subtenant (or any
\n person or entity which, directly or indirectly, controls, is controlled
\n by, or is under common control with, the proposed assignee or
\n subtenant) shall not be a person or entity with whom Landlord has,
\n within the six (6) month period prior to Landlord’s receipt of Tenant’s
\n Proposal Notice, been actively negotiating to lease space in the
\n Building (as used herein the term “ACTIVELY NEGOTIATING” shall mean
\n Landlord has either (I) subsequent to a general or specific request,
\n expression of interest or discussions or negotiations, sent to a
\n specific prospective subtenant (or its designated agent), or (II)
\n received from a specific subtenant (or its designated agent), a written
\n proposal to lease space in the Building (or subsequent modification
\n thereof or supplement thereto), which proposal (or which proposal as
\n modified or supplemented) shall contain the financial terms of the
\n proposed lease and indicate the approximate square footage of the space
\n to be demised by such proposed lease);<\/p>\n
(e) in the case of a proposed assignment, the
\n proposed assignee shall have a net worth computed in accordance with
\n generally accepted accounting principles equal to or greater than the
\n Minimum Net Worth;<\/p>\n
(f) there shall not be more than four (4)
\n Premises Occupants (as hereinafter defined) on any Premises Floor
\n (which number “four (4)” shall be pro-rated on a rentable square foot
\n basis, and rounded to the nearest whole number, for Partial Premises
\n Floors (as defined in Article 31 hereof)) (as used herein, the term
\n “PREMISES OCCUPANT” shall mean any occupant of the Premises, including
\n Tenant, any subtenant and any undersubtenant (but excluding an
\n Affiliate of Tenant which only occupies space in the Premises which is
\n not separated by demising walls from the balance of the Premises));<\/p>\n
(g) in the case of a proposed sublease, if the
\n area to be demised thereby consists of less than the entire rentable
\n area of a Premises Floor, then each of such area and the remaining
\n balance of such Premises Floor shall consist of one or more Rentable
\n Blocks;<\/p>\n
(h) Tenant shall reimburse Landlord, within ten
\n (10) days after demand, for any out-of-pocket costs incurred by
\n Landlord in connection with said assignment or sublease, including,
\n without limitation, the costs of making investigations as to the
\n acceptability of the proposed assignee or subtenant, and reasonable
\n legal costs incurred<\/p>\n
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\n 54
\n in connection with the granting of any requested consent; and<\/p>\n
(i) Tenant shall have complied with all the
\n provisions of this Article 7 (including without limitation Article
\n 7.11), and no Event of Default shall then exist hereunder.<\/p>\n
Provided Tenant shall have complied with the provisions of Sections 7.07, if
\napplicable, and shall have submitted a Tenant’s Proposal Notice in accordance
\nwith, and shall have otherwise complied with, Section 7.09, Landlord shall give
\n(or withhold) its consent to a proposed assignment or sublease within fifteen
\n(15) Business Days after the submission to Landlord of the Tenant’s Proposal
\nNotice setting forth the same (if such consent is not given or withheld within
\nsuch fifteen (15) Business Day period, the same shall be deemed given).
\nLandlord’s consent to a proposed assignment shall be in the form of Exhibit O-1;
\nwhich consent shall be conditioned upon Tenant, within ten (10) Business Days
\nafter its receipt of such instrument, (i) executing, and causing the proposed
\nassignee to execute, the same, and (ii) delivering the same, as fully executed,
\nto Landlord. Landlord’s consent to a proposed sublease shall be in the form of
\nExhibit O-2; which consent shall be conditioned upon Tenant, within ten (10)
\nBusiness Days after its receipt of such instrument, (x) executing, and causing
\nthe proposed subtenant to execute, the same, and (y) delivering the same, as
\nfully executed, to Landlord.<\/p>\n
7.11. (a) For purposes of this Section 7.11 and Section 7.12,
\nthe following definitions shall apply:<\/p>\n
(1) “ASSIGNMENT CONSIDERATION”, with respect to any
\nassignment, shall mean the sum of (i) any and all sums and other consideration
\nactually paid to Assignor (whether before, upon or after the assignment) by the
\nassignee for or by reason of such assignment (including without limitation any
\namounts paid in respect of the sale or transfer of any Tenant’s Improvements),
\nand (ii) any Excess Tenant Property Payments in connection with such assignment.
\n“ASSIGNOR” shall mean the Tenant prior to the assignment.<\/p>\n
(2) “SUBLEASE CONSIDERATION”, with respect to any sublease
\nfor any calendar year, shall mean the sum of (i) any and all rents, additional
\ncharges or other consideration actually paid to Tenant by the subtenant pursuant
\nto such sublease or in respect thereof (including without limitation any amounts
\npaid for the sale or other transfer of any Tenant’s Improvements) during such
\ncalendar year, and (ii) any Excess Tenant Property Payments in connection with
\nsuch sublease for such calendar year.<\/p>\n
(3) “SUBLEASE PROFIT”, with respect to any sublease for
\nany calendar year, shall mean the positive excess, if any, of (i) the Sublease
\nConsideration with respect to such sublease for such calendar year, over (ii)
\nthe Fixed Rent and Additional Charges accruing hereunder during such calendar
\nyear (or, if applicable, the portion of such calendar year which is within the
\nterm of such sublease) in respect of the sublease premises (determined on a
\npro-rated rentable square foot basis) pursuant to the terms hereof.<\/p>\n
(4) “SUBLEASE LOSS”, with respect to any sublease for any
\ncalendar year, shall mean the positive excess, if any, of (i) the Fixed Rent and
\nAdditional Charges accruing hereunder during such calendar year (or, if
\napplicable, the portion of such calendar year which is within the term of such
\nsublease) in respect of the sublease premises (determined on a pro-rated
\nrentable square foot basis) pursuant to the terms<\/p>\n
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\n 55
\nhereof, over (ii) the Sublease Consideration with respect to such sublease for
\nsuch calendar year.<\/p>\n
(5) “TRANSACTION EXPENSES”, with respect to any assignment
\nor sublease, shall mean the sum of the customary brokerage commissions actually
\npaid or incurred by Assignor or Tenant in connection therewith, as well as any
\namount paid to Landlord pursuant to Section 7.10(h) hereof.<\/p>\n
(6) “TENANT INDUCEMENTS”, with respect to any assignment
\nor sublease, shall mean the sum of all tenant inducements (by way of example
\nonly, direct payments, work allowances and workletters) paid or incurred to the
\nassignee or the subtenant in connection therewith (and, in the case of any such
\ntenant inducement not paid in cash, shall refer to the dollar value thereof).<\/p>\n
(7) “EXCESS TENANT PROPERTY PAYMENTS”, shall mean (i) in
\nconnection with any assignment (or, if applicable, any desired or proposed
\nassignment), the positive excess, if any, of (A) the aggregate of all sums paid
\nfor the sale or rental of Tenant’s Property by the assignee under such
\nassignment (or, if applicable, such desired or proposed assignment), over (B)
\nthe then (as of the date of the assignment) net unamortized or undepreciated
\ncost thereof (as set forth on Tenant’s federal income tax return for the year of
\nthe assignment), or (ii) in connection with any sublease (or, if applicable, any
\ndesired or proposed sublease) for any calendar year, shall mean the positive
\nexcess, if any, of (A) the aggregate of all sums paid for the sale or rental of
\nTenant’s Property during such calendar year by the subtenant under such sublease
\n(or, if applicable, such desired or proposed sublease), over (B) the portion of
\nthe cost thereof amortized or depreciated during such calendar year (as set
\nforth on Tenant’s federal income tax return for such calendar year), or, for any
\ncalendar year that is partly within and partly without the term of the sublease,
\na pro-rated portion thereof.<\/p>\n
(8) “SHOWING AND SEPARATION EXPENSES”, (i) with respect to
\nany assignment, shall mean the costs of any Alterations made by Assignor during
\nthe period after Assignor shall have vacated the Premises and prior to Assignor
\nhaving executed any instrument effecting the assignment, which Alterations are
\nmade to prepare the Premises for marketing or to enhance the marketability
\nthereof, or (ii) with respect to any sublease, shall mean (x) the costs of any
\nAlterations made by Tenant in or to the sublease premises during the period
\nafter Tenant shall have vacated the sublease premises and prior to Tenant having
\nexecuted the sublease, which Alterations are made to prepare the Premises for
\nmarketing or to enhance the marketability thereof, and (y) in any case where the
\nsublease premises (or any portion thereof) consist of less than all of the
\nleasable area on a given Premises Floor, the costs of any Alterations made by
\nTenant to physically separate the sublease premises (or the applicable portion
\nthereof) from the balance of the Premises located on such Premises Floor and to
\ncomply with any laws and requirements of any public authorities relating to such
\nseparation; provided, however, that in no event shall Showing and Separation
\nExpenses ever include any costs which are included in Tenant’s Inducements.<\/p>\n
(9) “COLLECTION EXPENSES”, with respect to any assignment
\nor sublease, shall mean the costs paid or incurred by Tenant or Assignor with
\nrespect to such assignment or sublease, as the case may be, pursuant to the
\nprovisions of Section 7.11(d)(1) hereof.<\/p>\n
(b) If Landlord shall consent to any assignment
\nof this lease, then, in consideration therefor, Assignor, within ten (10) days
\nafter Assignor’s receipt of any<\/p>\n
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\n 56
\nAssignment Consideration, shall (i) deliver to Landlord a written statement,
\ncertified by an officer of Assignor, setting forth, in reasonable detail, the
\nAssignment Consideration theretofore received and the Tenant Inducements,
\nTransaction Expenses, Showing and Separation Expenses and Collection Expenses
\ntheretofore paid or incurred by Assignor with respect to such assignment, and
\n(ii) retain such Assignment Consideration or pay the same to Landlord in
\naccordance with the following:<\/p>\n
first, such Assignment Consideration shall be
\n retained by Assignor to the extent of the sum of (w) all
\n Tenant Inducements theretofore paid or incurred by Assignor
\n with respect to such assignment, plus (x) all Transaction
\n Expenses theretofore paid or incurred by Assignor with respect
\n to such assignment, plus (y) all Showing and Separation
\n Expenses theretofore paid or incurred by Assignor with respect
\n to such assignment, plus (z) all Collection Expenses
\n theretofore paid or incurred by Assignor with respect to such
\n assignment (except to the extent that amounts were previously
\n retained by Assignor pursuant to this clause first with
\n respect to such assignment); and<\/p>\n
second, with respect to the balance of such
\n Assignment Consideration, (x) fifty percent (50%) shall be
\n retained by Assignor, and (y) fifty percent (50%) shall be
\n paid to Landlord.<\/p>\n
Tenant and Assignor shall be and remain jointly and severally liable for all
\namounts due under this Section 7.11(b), and, in the case of Tenant, the all such
\namounts due shall be due as Additional Charges hereunder.<\/p>\n
(c) If Landlord shall consent to any sublease of
\nall or any portion of the Premises, then, in consideration therefor, Tenant,
\nwithin thirty (30) days after the close of each calendar year during the term of
\nthis lease in which such sublease is in effect, shall (i) deliver to Landlord a
\nwritten statement, certified by an officer of Tenant, setting forth, in
\nreasonable detail, the Sublease Consideration and the Sublease Profit, if any,
\nwith respect to such sublease for such calendar year, and the Tenant
\nInducements, Transaction Expenses, Showing and Separation Expenses and
\nCollection Expenses theretofore paid or incurred with respect to such sublease,
\nand (ii) retain such Sublease Profit or pay the same to Landlord in accordance
\nwith the following:<\/p>\n
first, such Sublease Profit shall be retained by
\n Tenant to the extent of the sum of (v) all Tenant Inducements
\n theretofore paid or incurred by Tenant with respect to such
\n sublease, plus (w) all Transaction Expenses theretofore paid
\n or incurred by Tenant with respect to such sublease, plus (x)
\n all Showing and Separation Expenses theretofore paid or
\n incurred by Tenant with respect to such sublease, plus (y) all
\n Collection Expenses theretofore paid or incurred by Tenant
\n with respect to such sublease, plus (z) any Sublease Losses
\n for prior calendar years with respect to such sublease (except
\n to the extent that amounts were retained by Tenant for
\n previous calendar years pursuant to this clause first with
\n respect to such sublease); and<\/p>\n
second, with respect to the balance of such
\n Sublease Profit, (x) fifty percent (50%) shall be retained by
\n Tenant, and (y) fifty percent (50%) shall be paid to Landlord.<\/p>\n
(d) (1) Tenant covenants to make all
\ncommercially reasonable efforts to collect from its assignee or<\/p>\n
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\n 57
\nsubtenants, as the case may be, any amounts which would comprise Assignment
\nConsideration or Sublease Consideration, respectively; provided, however, that
\n(i) Tenant may compromise or settle any claim in good faith, (ii) Tenant shall
\nnot be required to commence or continue such efforts if Tenant reasonably
\nbelieves that the amount and likelihood of recovery does not justify the costs
\nand risks of commencing or continuing such efforts, and (iii) this Section
\n7.11(d)(1) shall not be deemed to restrict Tenant’s rights to terminate a
\nsublease, in whole or in part, as set forth in Section 7.14 hereof.<\/p>\n
(2) Tenant, from time to time within
\nforty-five (45) days of a request therefor by Landlord, shall (i) provide
\nLandlord with an accounting of all such sums paid or payable to it as either
\nAssignment Consideration or Sublease Consideration (which accounting shall set
\nforth any past-due amounts), as well as any amounts paid or payable by it as
\nTenant Inducements or Transaction Expenses, and (ii) permit Landlord, at
\nreasonable times during Business Hours, to inspect Tenant’s books and records in
\nrespect of Assignment Consideration, Sublease Consideration, Tenant Inducements,
\nTransaction Expenses, Showing and Separation Expenses and Collection Expenses.<\/p>\n
7.12. (a) For purposes of this Section 7.12, the following
\ndefinitions shall apply:<\/p>\n
(1) “CONTEMPLATED ASSIGNMENT” shall
\nmean any desired assignment set forth in a Tenant’s Initial Notice, if, with
\nrespect to such desired assignment and Tenant’s Initial Notice, Landlord
\nexercises its Recapture Option set forth in Section 7.07(b)(i).<\/p>\n
(2) “CONTEMPLATED ASSIGNMENT
\nCONSIDERATION”, with respect to any Contemplated Assignment, shall mean the
\nAssignment Consideration that would have been paid pursuant to such Contemplated
\nAssignment (assuming the Contemplated Assignment had been consummated as
\ncontemplated in the applicable Tenant’s Initial Notice and that all such
\nAssignment Consideration that would have been payable thereunder had been paid
\nas and when due); it being further agreed that, for purposes of this Section
\n7.12, such Contemplated Assignment Consideration shall be deemed payable as and
\nwhen the aforesaid Assignment Consideration would have been paid pursuant to
\nsuch Contemplated Assignment had the same been consummated as contemplated in
\nthe applicable Tenant’s Initial Notice and had all such Assignment Consideration
\nthat would have been payable thereunder been paid as and when contemplated.<\/p>\n
(3) “CONTEMPLATED SUBLEASE” shall mean
\nany desired sublease set forth in a Tenant’s Initial Notice (but only as to the
\ninitial term thereof), if, with respect to such desired sublease and Tenant’s
\nInitial Notice, Landlord exercises any of its Recapture Options set forth in
\nSection 7.07(b).<\/p>\n
(4) “CONTEMPLATED SUBLEASE
\nCONSIDERATION”, with respect to any Contemplated Sublease for the any calendar
\nyear, shall mean the Sublease Consideration that would have been paid pursuant
\nto such Contemplated Sublease for such calendar year (assuming that such
\nContemplated Sublease had been consummated as contemplated in the applicable
\nTenant’s Initial Notice and that all such Sublease Consideration that would have
\nbeen payable thereunder had been paid as and when contemplated).<\/p>\n
(5) “CONTEMPLATED LEASE RENT”, with
\nrespect to any Contemplated Sublease for any calendar year, shall mean the Fixed
\nRent and Additional Charges which, but for the termination of this lease in
\nrespect of the premises contemplated to be demised by such Contemplated
\nSublease, would have accrued hereunder during such calendar year (or, if
\napplicable, the<\/p>\n
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\n 58
\nportion of such calendar year which would have been within the term of the
\nContemplated Sublease) in respect of the premises contemplated to be demised by
\nthe Contemplated Sublease (determined on a pro-rated rentable square foot basis)
\npursuant to the terms hereof.<\/p>\n
(6) “CONTEMPLATED TENANT INDUCEMENTS”,
\nwith respect to any Contemplated Assignment or Contemplated Sublease, shall mean
\nthe sum of all Tenant Inducements which would have been paid or incurred to the
\nassignee or the subtenant in connection therewith (assuming the Contemplated
\nAssignment or Contemplated Sublease had been consummated as contemplated in the
\napplicable Tenant’s Initial Notice and that all such Tenant Inducements that
\nwould have been payable or incurrable thereunder had been paid or incurred as
\nand when due); it being further agreed that, for purposes of this Section 7.12,
\nsuch Contemplated Tenant Inducements shall be deemed payable or incurrable as
\nand when the aforesaid Tenant Inducements would have been paid or incurred
\npursuant to such Contemplated Assignment or the Contemplated Sublease, as the
\ncase may be, had such Contemplated Assignment or Contemplated Sublease, as the
\ncase may be, been consummated as contemplated in the applicable Tenant’s Initial
\nNotice and had all such Tenant Inducements that would have been payable or
\nincurrable thereunder been paid or incurred as and when contemplated.<\/p>\n
(7) “CONTEMPLATED BROKERAGE EXPENSES”,
\nwith respect to any Contemplated Assignment or Contemplated Sublease, shall mean
\nthe customary brokerage commissions which would have been payable by Tenant in
\nconnection therewith (assuming that the Contemplated Assignment or Contemplated
\nSublease was consummated as provided in the applicable Tenant’s Initial Notice);
\nit being further agreed that, for purposes of this Section 7.12, the
\nContemplated Brokerage Expenses for any Contemplated Assignment or Contemplated
\nSublease, as the case may be, shall be deemed incurred on the date that is
\nthirty (30) days after the contemplated effective date of the Contemplated
\nAssignment or the contemplated commencement date of the Contemplated Sublease,
\nas the case may be.<\/p>\n
(8) “CONTEMPLATED ASSIGNMENT PROFIT
\nPAYMENT”, with respect to any Contemplated Assignment Consideration which would
\nhave been received by Assignor pursuant to any Contemplated Assignment, shall
\nmean the portion thereof, if any, which would have been payable to Landlord
\npursuant to Section 7.11(b) hereof in respect of such Contemplated Assignment,
\n(a) assuming that (i) such Contemplated Assignment had been consummated as
\ncontemplated in the applicable Tenant’s Initial Notice, (ii) the applicable
\nContemplated Assignment Consideration shall have been paid as and when
\ncontemplated, (iii) the applicable Contemplated Tenant Inducements shall have
\nbeen paid or incurred as and when contemplated, and (iv) the Contemplated
\nBrokerage Expenses have been incurred as hereinabove provided, and (b)
\nreflecting Showing and Separation Expenses and Collection Expenses of zero.<\/p>\n
(9) “CONTEMPLATED SUBLEASE PROFIT
\nPAYMENT”, with respect to any Contemplated Sublease for any calendar year, shall
\nmean the amount of Sublease Profit, if any, which would have been payable to
\nLandlord pursuant to Section 7.11(c) hereof for such Contemplated Sublease for
\nsuch calendar year, (a) assuming that (i) such Contemplated Sublease had been
\nconsummated as contemplated in the applicable Tenant’s Initial Notice, (ii) the
\napplicable Contemplated Sublease Consideration shall have been paid as and when
\ncontemplated, (iii) the applicable Contemplated Tenant Inducements shall have
\nbeen paid or incurred as and when contemplated, and (iv) the Contemplated
\nBrokerage Expenses have been incurred as hereinabove provided, and (b)
\nreflecting Showing and Separation Expenses and Collection Expenses of zero.<\/p>\n
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\n (b) If Landlord shall exercise its Recapture Option set forth
\nin Section 7.07(b)(i) hereof in respect of a desired assignment set forth in any
\nTenant’s Initial Notice, and, as a result thereof, this lease shall be
\nterminated as provided in Section 7.08(a) hereof, then, with respect to the
\nContemplated Assignment resulting from such exercise, Landlord or Tenant, as
\napplicable, shall make the following payments:<\/p>\n
(1) Landlord, as and when any Contemplated Assignment
\n Consideration with respect to any Contemplated Assignment is deemed
\n payable pursuant to the provisions of this Section 7.12, shall pay to
\n Tenant the excess of (i) such Contemplated Assignment Consideration,
\n over (ii) the Contemplated Assignment Profit Payment, if any, with
\n respect to such Contemplated Assignment Consideration.<\/p>\n
(2) Tenant shall pay to Landlord an amount equal to
\n the Contemplated Brokerage Expenses with respect to such Contemplated
\n Assignment, as and when the same are deemed to be payable pursuant to
\n the provisions of this Section 7.12.<\/p>\n
(3) Tenant shall pay to Landlord an amount equal to
\n the Contemplated Tenant Inducements with respect to such Contemplated
\n Assignment, as and when the same are deemed to be payable pursuant to
\n the provisions of this Section 7.12.<\/p>\n
(c) If either (i) Landlord shall exercise its Recapture Option
\nset forth in Section 7.07(b)(i) hereof in respect of a desired sublease set
\nforth in any Tenant’s Notice, and, as a result thereof, this lease shall be
\nterminated pursuant to Section 7.08(a) hereof, or (ii) Landlord shall exercise
\nits Recapture Option set forth in Section 7.07(b)(ii) hereof in respect of a
\ndesired sublease set forth in any Tenant’s Notice, and, as a result thereof,
\nthis lease shall be terminated with respect to Recaptured Space pursuant to the
\nprovisions of Section 7.08(b) hereof, then, with respect to the Contemplated
\nSublease resulting from each such termination, the following provisions shall
\napply:<\/p>\n
(1) Tenant shall make the following payments to
\nLandlord:<\/p>\n
(A) Tenant shall pay to Landlord an amount equal to the
\n Contemplated Brokerage Expenses with respect to such Contemplated
\n Sublease, as and when the same are deemed to be incurred pursuant to
\n the provisions of this Section 7.12.<\/p>\n
(B) Tenant shall pay to Landlord an amount equal to the
\n Contemplated Tenant Inducements with respect to such Contemplated
\n Sublease, as and when the same are deemed to be payable pursuant to
\n the provisions of this Section 7.12.<\/p>\n
(2) Landlord, promptly after the close of each
\ncalendar year the whole or any part of which is within the term of such
\nContemplated Sublease, shall deliver to Tenant a written statement (each, an
\n“ANNUAL CONTEMPLATED SUBLEASE STATEMENT”) setting forth the Contemplated
\nSublease Consideration and the Contemplated Lease Rent for such Contemplated
\nSublease for such calendar year. Within thirty (30) days after Tenant’s receipt
\nof the Annual Contemplated Sublease Statement for any calendar year, Landlord or
\nTenant, as applicable, shall make the following payments:<\/p>\n
(A) Landlord shall pay to Tenant the excess, if any, of (i)
\n the Contemplated Sublease<\/p>\n
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\n 60
\n Consideration with respect to such Contemplated Sublease for such
\n calendar year, over (ii) the sum of (A) the Contemplated Lease Rent
\n with respect to such Contemplated Sublease for such calendar year, and
\n (B) the Contemplated Sublease Profit Payment with respect to such
\n Contemplated Sublease for such calendar year.<\/p>\n
(B) Tenant shall pay to
\n Landlord the excess, if any, of (i) the Contemplated Lease Rent for
\n such Contemplated Sublease for such calendar year, over (ii) the
\n Contemplated Sublease Consideration for such Contemplated Sublease for
\n such calendar year.<\/p>\n
(d) If Landlord shall exercise any Recapture
\nOption, then Landlord shall reimburse Tenant for one-half (1\/2) of any Transfer
\nTaxes (as hereinafter defined) which Tenant incurs on account of (I) the
\ntermination of this lease, in whole or in part, arising out of such exercise, or
\n(II) any amount paid or payable to Tenant pursuant to the provisions of this
\nSection 7.12 (including any amounts payable under this Section 7.12(d)), but
\nonly to the extent that such Transfer Taxes exceed the Transfer Taxes which
\nTenant would have incurred if Landlord had not exercised such Recapture Option
\nand the transaction described in the Tenant’s Initial Notice giving rise to such
\nRecapture Option had been consummated in accordance with the terms of such
\nTenant’s Initial Notice. The term “TRANSFER TAXES” shall mean, collectively, (i)
\nthe New York State Real Property Transfer Gains Tax payable under Article 31-B
\nof the New York State Tax Law, (ii) the New York State Real Estate Transfer Tax,
\nand (iii) the New York City Real Property Transfer Tax, and (iv) any other gains
\nor transfer taxes adopted after the date hereof.<\/p>\n
(e) The payment of obligations of Landlord and
\nTenant under this Section 7.12 shall survive the termination of this lease (in
\nwhole or in part). In any such case, either Landlord or Tenant, upon the request
\nof the other party, shall provide such other party with reasonably satisfactory
\ndocumentation acknowledging and evidencing its payment obligations under this
\nSection 7.12.<\/p>\n
7.13. With respect to each and every sublease or subletting
\nunder this lease (including any sublease to which Landlord has consented and any
\nsublease entered into pursuant to Section 7.02(c) hereof), it is further agreed
\nas follows:<\/p>\n
(a) No subletting shall be for a sublease term
\nending later than one day prior to the Expiration Date.<\/p>\n
(b) No sublease shall be valid, and no sub-
\ntenant shall take possession of the Premises or any part thereof, until an
\nexecuted counterpart of such sublease has been delivered to Landlord.<\/p>\n
(c) Each sublease shall provide that it is
\nsubject and subordinate to this lease and to any matters to which this lease is
\nor shall be subordinate, and that in the event of termination, reentry or
\ndispossess by Landlord under this lease Landlord may, at its option, take over
\nall of the right, title and interest of Tenant, as sublessor, under such
\nsublease, and such subtenant shall, at Landlord’s option, attorn to Landlord
\npursuant to the then executory provisions of such sublease, except that Landlord
\nshall not be (1) liable for any previous act or omission of Tenant under such
\nsublease, (2) subject to any credit, offset, claim, counterclaim, demand or
\ndefense which such subtenant may have against Tenant, (3) bound by any previous
\nprepayment of more than one (1) month’s rent, (4) required to account for any
\nsecurity deposit of the subtenant other than any security deposit actually
\ndelivered to Landlord by Tenant, or (5) required to remove any person occupying
\nthe Premises or any part thereof.<\/p>\n
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\n (d) (1) Each sublease shall provide that, except
\nas may be contemplated in subsections (2) and (3) of this Section 7.13(d), the
\nsubtenant may not assign its rights thereunder or undersublet the space demised
\nunder the sublease, in whole or in part, without Landlord’s consent, and shall
\nset forth the terms and provisions of Section 7.02(a) hereof, mutatis mutandis,
\nwith respect to the assignment or deemed assignment of such sublease.<\/p>\n
(2) Each sublease may set forth the terms
\nand provisions of Section 7.02(b) hereof, mutatis mutandis, with respect to the
\nassignment or deemed assignment of such sublease, except that the subtenant’s
\nassignee or deemed assignee need not comply with the provisions thereof relating
\nto net worth; provided, however, that each such sublease shall expressly provide
\nthat such terms and provisions shall not apply to permit any such assignment or
\ndeemed assignment, if, immediately prior to such assignment or deemed
\nassignment, the subtenant is an Affiliate of Tenant, unless, immediately after
\nsuch assignment or deemed assignment, Tenant has a net worth computed in
\naccordance with generally accepted accounting principles consistently applied
\nwhich is not less the Minimum Net Worth.<\/p>\n
(3) Each sublease may set forth the terms
\nand provisions of Section 7.02(c)(1) hereof, mutatis mutandis, with respect to
\nthe undersubletting by the subtenant of all or any part of the sublease premises
\nto Affiliates of such subtenant; provided, however, that each such sublease
\nshall expressly provide that such terms and provisions shall not apply to any
\nundersubletting by a subtenant that, at the time of the making of such
\nundersubletting, is an Affiliate of Tenant.<\/p>\n
7.14. Tenant, without Landlord’s consent (and without
\nsubmitting any Tenant’s Initial Notice or Tenant’s Proposal Notice), may modify,
\namend or terminate, in whole or in part, any sublease; provided, however, that<\/p>\n
(a) no such modification or amendment of any
\n sublease (other than a sublease which, at the time of such modification
\n or amendment, is to an Affiliate of Tenant), shall either<\/p>\n
(1) extend the term of the sublease (other than (x) an
\n extension of the term of a sublease pursuant to a Qualified
\n Sublease Renewal Provision, it being understood that such
\n provision need not be implemented precisely in accordance with
\n its terms, so long as the commencement and expiration of the
\n pertinent renewal term and the rent payable during such
\n renewal term are the same as each would have been had such
\n Qualified Sublease Renewal Provision been implemented
\n precisely in accordance with its terms, or (y) an extension of
\n the term of a Short-Term Sublease pursuant to any option or
\n other provision set forth in the original form of such
\n sublease, it being understood that such provision need not be
\n implemented precisely in accordance with its terms, so long as
\n the commencement and expiration of the pertinent renewal term
\n and the rent payable during such renewal term are the same as
\n each would have been had such provision been implemented
\n precisely in accordance with its terms), or<\/p>\n
(2) expand the premises demised by the sublease (other
\n than an expansion of the premises demised by a Short-Term
\n Sublease pursuant to any option or other provision set forth
\n in the original form of such sublease, it being understood
\n that such provision need not be implemented precisely in
\n accordance with its terms, so long as the space added to the
\n premises<\/p>\n
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\n 62
\n demised by such sublease is the same and the per annum rent
\n payable therefor are the same as each would have been had such
\n provision been implemented precisely in accordance with its
\n terms), and<\/p>\n
(b) no such modification, amendment or
\n termination of any sublease (other than a sublease which, at the time
\n of such modification, amendment or termination, is to an Affiliate of
\n Tenant) shall decrease the rent payable under the sublease (other than
\n (i) a proportional decrease in rent resulting from a partial
\n termination of the sublease, or (ii) a complete elimination of rent
\n resulting from a termination of the sublease in whole), and<\/p>\n
(c) no such modification or amendment of any
\n sublease shall cause the sublease not to comply with any of the
\n provisions of Sections 7.13, 7.15 and 7.16 hereof, and<\/p>\n
(d) no such modification, amendment or
\n termination shall be valid until an executed counterpart thereof has
\n been delivered to Landlord, together with, in the case of a
\n termination, a certificate, signed by a partner of Tenant (or, if
\n Tenant is not then a partnership, an officer of Tenant at or above the
\n level of Vice President), indicating that the termination was not
\n contemplated at the time the sublease was executed.<\/p>\n
7.15. Each subletting shall be subject to all of the
\ncovenants, agreements, terms, provisions and conditions contained in this lease.
\nNotwithstanding any subletting to any subtenant and\/or acceptance of rent or
\nadditional rent by Landlord from any subtenant, Tenant shall and will remain
\nfully liable for the payment of the Fixed Rent and Additional Charges due and to
\nbecome due hereunder and for the performance of all the covenants, agreements,
\nterms, provisions and conditions contained in this lease on the part of Tenant
\nto be performed and all acts and omissions of any licensee or subtenant or
\nanyone claiming under or through any subtenant which shall be in violation of
\nany of the obligations of this lease, and any such violation shall be deemed to
\nbe a violation by Tenant.<\/p>\n
7.16. (a) Tenant agrees that, notwithstanding any subletting
\nby Tenant pursuant to this Article 7, (i) no other subletting of the Premises
\n(or any portion thereof) shall be made by Tenant, except in accordance with this
\nArticle 7, and (ii) except as contemplated by subsections (2) and (3) of Section
\n7.13(d), no undersubletting of any part of the Premises shall be made by any
\nsubtenant, and no subtenant shall assign its sublease, without Landlord’s
\nconsent.<\/p>\n
(b) (1) If Tenant, on behalf of any subtenant under a
\nQualified Sublease (as hereinafter defined), other than a subtenant that, at the
\ntime of the request pursuant to this Section 7.16(b), is an Affiliate of Tenant,
\nshall request Landlord’s consent to any proposed assignment of such sublease or
\nto a proposed undersubletting of all or a portion of the sublease premises
\ndemised thereby, then, provided that Tenant and such subtenant shall have
\npreviously complied with the provisions of such sublease described in Section
\n7.16(b)(3)(C) below and provided that such request is made pursuant to a notice
\nsubstantially in the form of a Tenant’s Proposal Notice as described in Section
\n7.09, Landlord’s consent, subject to the conditions set forth in Section 7.10,
\napplied mutatis mutandis, shall not be unreasonably withheld. The provisions of
\nSections 7.07, 7.08, 7.09 (other than subsection (c) thereof), 7.11 (except as
\nprovided below) and 7.12 shall not apply to any such assignment of a sublease or
\nto any such undersubletting.<\/p>\n
(2) With respect to (i) any sublease other than a
\nQualified Sublease, and (ii) any Qualified Sublease<\/p>\n
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\n 63
\nduring any period that the subtenant thereunder is an Affiliate of Tenant,
\nLandlord, notwithstanding anything herein to the contrary, shall have no
\nobligation to consent to any assignment of any such sublease or to any
\nundersubletting of the sublease premises demised thereby, or to be reasonable in
\nany such regard.<\/p>\n
(3) As used herein, the term “QUALIFIED
\nSUBLEASE” shall mean any sublease which (A) demises all of the leasable area on
\na Premises Floor (it being understood that such sublease may demise other space
\nin addition thereto), (B) has an initial term of five (5) years or more (it
\nbeing agreed that, for purposes of this clause (B) only, the “initial term” of a
\nsublease shall be the initial term thereof, excluding any period within such
\ninitial term during which the subtenant under such sublease is an Affiliate of
\nTenant), (C) provides that if the subtenant under such sublease shall desire to
\nassign its sublease or undersublease the whole or any portion of its sublease
\npremises (other than as contemplated in subsections (2) and (3) of Section
\n7.13(d)), then Tenant and the subtenant shall jointly notify Landlord of the
\nsubtenant’s desire, which notification shall be given prior to the subtenant
\neither marketing its sublease for assignment or its sublease premises or any
\npart thereof for undersubletting, or otherwise considering offers therefor, (D)
\nsets forth the provisions of Section 7.11 hereof, mutatis mutandis, with respect
\nto the assignment of the sublease (other than an assignment or deemed assignment
\ncontemplated by the provisions described in Section 7.13(d)(2) hereof) and the
\nundersubletting of all or a part of the sublease premises (other than an
\nundersubletting contemplated by the provisions described Section 7.13(d)(3)
\nhereof), such that Tenant shall be entitled to receive from the subtenant (I)
\nthe same portion of the consideration paid to the subtenant on account of an
\nassignment of the sublease that Landlord is entitled to receive under Section
\n7.11(b) hereof from Tenant on account of an assignment of this lease, and (II)
\nthe same portion of the rent and other consideration paid to the subtenant on
\naccount of an undersubletting that Landlord is entitled to receive under Section
\n7.11(c) hereof from Tenant on account of a sublease of all or a part of the
\nPremises, and (E) provides that any and all of the rights of Tenant, as
\nsublandlord, under the provisions of the sublease described in clause (D) above
\nshall be assignable by Tenant to Landlord at any time and from time to time.<\/p>\n
(c) (1) As used herein, the following terms
\nshall have the following meanings: (i) “SUBLEASE-LEVEL PROFIT PROVISIONS”, of
\nany sublease, shall mean the provisions of such sublease described in Section
\n7.16(b)(3)(D) above; (ii) “ASSIGNMENT OF SUBLEASE PROFIT”, with respect to the
\nassignment of any sublease, shall mean the amounts which Tenant is entitled to
\nreceive pursuant to the Sublease-Level Profit Provisions of such sublease from
\nthe subtenant thereunder on account of such assignment of such sublease; and
\n(iii) “UNDERSUBLETTING PROFIT”, with respect to any undersubletting, shall mean
\nthe amounts which Tenant is entitled to receive pursuant to the Sublease-Level
\nProfit Provisions of such sublease from the subtenant thereunder on account of
\nsuch undersubletting.<\/p>\n
(2) Tenant, as and when it receives the
\nsame pursuant to the Sublease-Level Profit Provisions of any sublease, shall pay
\nto Landlord, as Additional Charges hereunder, the entire amount of any
\nAssignment of Sublease Profit and Undersubletting Profit. Such amounts received
\nby Tenant and paid to Landlord shall not be considered “Assignment
\nConsideration” or “Sublease Consideration” for purposes of Section 7.11 hereof.<\/p>\n
(3) Tenant, from time to time within
\nforty-five (45) days of a request therefor by Landlord, shall provide Landlord
\nwith an accounting of all such sums paid or payable to Tenant as either
\nAssignment of Sublease Profit or<\/p>\n
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\n 64
\nUndersubletting Profit (which accounting shall set forth any past-due amounts).<\/p>\n
(4) Tenant covenants to make all commercially reasonable
\nefforts to enforce the Sublease-Level Profit Provisions in each of its subleases
\nand collect from its subtenants (or former subtenants) any Assignment of
\nSublease Profit or Undersubletting Profit due thereunder; provided, however,
\nthat (i) Tenant may compromise or settle any claim in good faith (provided that
\nTenant shall not compromise or settle any claim until after it shall have given
\nLandlord thirty (30) days written notice of its intention to do so, it being
\nunderstood that Landlord may exercise its rights set forth in the last sentence
\nof this Section 7.16(c)(4) with respect to any such claim during such 30-day
\nperiod), (ii) Tenant shall not be required to commence or continue such efforts
\nif Tenant reasonably believes that the amount and likelihood of recovery does
\nnot justify the costs and risks of commencing or continuing such efforts, and
\n(iii) this Section 7.16(c)(4) shall not be deemed to restrict Tenant’s rights to
\nterminate a sublease, in whole or in part, as set forth in Section 7.14 hereof.
\nTenant, upon demand, shall assign to Landlord any or all of its rights under the
\nSublease-Level Profit Provisions of any sublease (including without limitation
\nthe right thereunder to receive Assignment of Sublease Profit or Undersubletting
\nProfit and the rights thereunder to receive accountings and inspect books and
\nrecords).<\/p>\n
7.17. If Landlord shall decline to give its consent to any
\nproposed assignment or sublease, or if Landlord shall exercise any of its
\nRecapture Options, Tenant shall indemnify, defend and hold harmless Landlord
\nagainst and from any and all loss, liability, damages, costs and expenses
\n(including reasonable counsel fees) resulting from any claims that may be made
\nagainst Landlord by the proposed assignee or subtenant, or by any brokers or
\nother persons claiming a commission or similar compensation in connection with
\nthe proposed assignment or sublease.<\/p>\n
7.18. Notwithstanding the foregoing provisions of this Article
\n7, for so long as Original Tenant is Tenant, Original Tenant may, from time to
\ntime, sublease space in the Premises to any Affiliate of Original Tenant without
\nthere being a written sublease, provided, that (i) such unwritten sublease shall
\nbe deemed subject and subordinate to this lease and to any matters to which this
\nlease is or shall be subordinate, and, without limiting the generality thereof,
\nthe provisions of Section 7.13 hereof (excluding, however, subsection (b)
\nthereof) and Sections 7.14, 7.15 and 7.16 hereof shall apply to such unwritten
\nsublease (as fully and completely as if the same were a written sublease
\nincorporating and\/or being subject to the same as required hereby), (ii) prior
\nto such Affiliate of Original Tenant taking occupancy of the space sublet
\npursuant to such unwritten sublease, Original Tenant shall deliver to Landlord a
\nwritten notice (executed by both Original Tenant and such Affiliate of Original
\nTenant) indicating that such Affiliate of Original Tenant is about to take
\noccupancy of such sublet space as a subtenant of Original Tenant without a
\nwritten sublease, which notice shall be accompanied by a floor plan(s)
\ndescribing the space being so sublet and which notice shall be deemed an
\nacknowledgement of the provisions of clause (i) of this sentence, and (iii) such
\nunwritten sublease (and such Affiliate’s occupancy of the space sublet
\nthereunder) shall be deemed to automatically terminate upon the expiration or
\nearlier termination of this lease, or, if earlier, upon either (x) Original
\nTenant ceasing to be Tenant hereunder, or (y) such Affiliate of Original Tenant
\nceasing to be an Affiliate of Original Tenant.<\/p>\n
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\n ARTICLE 8<\/p>\n
Compliance with Laws<\/p>\n
8.01. (a) Tenant shall give prompt notice to Landlord of any
\nwritten notice of any violation of any law or requirement of any public
\nauthority with respect to the Premises or the use or occupation thereof which
\nTenant receives from any governmental authority.<\/p>\n
(b) Tenant, at its expense, shall comply with all
\npresent and future laws and requirements of any public authorities to the extent
\nthat the same require compliance in, to or upon the Premises or the Base
\nBuilding Premises Components (including without limitation compliance requiring
\nthe performance of alterations, additions, improvements, replacements or
\nrepairs, whether the same are structural or non-structural, ordinary or
\nextraordinary, foreseen or unforeseen); provided, however, that Tenant shall not
\nbe required to make any alterations, additions, improvements, replacements or
\nrepairs in, to or upon the Base Building Premises Components (other than as
\nprovided in Section 8.03 hereof) in order to comply with any such law or
\nrequirement of public authorities, except to the extent that the need for such
\ncompliance arises by reason of (i) Tenant’s use and occupancy of the Premises
\nfor the Primary Use, but only if (x) the need for such compliance arises by
\nreason of Tenant’s particular manner of use of the Premises for the Primary Use
\n(including, without limitation, the nature and layout of Tenant’s Improvements
\nand Tenant’s Property and the density of personnel), and (y) such particular
\nmanner of use is untypical among tenants of Similar Buildings which use space
\nfor the Primary Use or an equivalent use (it being agreed that Tenant’s
\nparticular manner of use shall not be deemed so untypical on the basis of the
\nnumber of persons occupying the Premises on any Premises Floor so long as such
\nnumber of persons does not exceed the occupancy levels for such Premises Floor
\nas set forth on the Existing Certificate of Occupancy), (ii) Tenant’s use and
\noccupancy of the Premises for any Secondary Use, (iii) Tenant’s performance of
\nany Section 8.01 Alterations (as hereinafter defined), (iv) the presence or
\noperation of any Tenant’s Improvements resulting from any Section 8.01
\nAlterations, or (v) a violation by Tenant of the provisions of this lease. As
\nused herein, the term “SECTION 8.01 ALTERATIONS” shall mean any Alterations
\nwhich (w) are not limited to the Premises or which affect the exterior of the
\nBuilding (it being understood that Alterations within the Premises shall not be
\ndeemed Section 8.01 Alterations solely by reason of being visible from outside
\nthe Premises), (x) are structural or otherwise affect (other than to a de
\nminimis extent) the structural elements of the Building, (y) affect the
\nfunctioning or performance of the Building Systems (as hereinafter defined) in
\nareas of the Building outside of the Premises (other than to a de minimis
\nextent), or (z) are otherwise not commonly performed by or on behalf of tenants
\nin Similar Buildings.<\/p>\n
(c) Tenant, in addition, shall be responsible for the
\ncost of compliance with all present and future laws and requirements of any
\npublic authorities to the extent that the same require compliance in, to or upon
\nthe Real Property outside the Premises and the Base Building Premises Components
\n(including without limitation compliance requiring the performance of
\nalterations, additions, improvements, replacements or repairs whether the same
\nare structural or non-structural, ordinary or extraordinary, foreseen or
\nunforeseen), but only to the extent that the need for compliance therewith
\narises by reason of (i) Tenant’s use and occupancy of the Premises for any
\nSecondary Use, (ii) Tenant’s performance of any Section 8.01 Alterations, (iii)
\nthe presence or operation of any Tenant’s Improvements resulting from any
\nSection 8.01 Alterations, or (iv) any violation by Tenant of the provisions of
\nthis lease.<\/p>\n
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\n (d) In addition to the foregoing, Tenant, within thirty
\n(30) days after its receipt of a demand therefor, shall pay all expenses, fines
\nand penalties which may be imposed upon Landlord or any Landlord Party (as
\nhereinafter defined) by reason of or arising out of Tenant’s failure to fully
\nand promptly comply with and observe the provisions of this Article 8 after
\nTenant has notice of the need for such compliance.<\/p>\n
(e) Whenever, pursuant to the provisions of this Section
\n8.01, Tenant shall be required to comply, or to be responsible for the costs of
\ncompliance with, any law or requirement of any public authority, Tenant may, in
\nlieu thereof, as the case may be, (i) cease or alter its use or occupancy giving
\nrise to such requirement of compliance, or (ii) cease or alter its performance
\nof Alterations giving rise to such requirement of compliance, or (iii) remove or
\nalter the Tenant’s Improvements (or cease or alter the operation thereof) giving
\nrise to such requirement of compliance, (iv) cure the violation of this lease
\ngiving rise to such requirement of compliance, or (v) take any other action (so
\nlong as taking the same does not violate this lease), such that after such
\ncessation, alteration, removal, cure or other action, such compliance is no
\nlonger required. Furthermore, notwithstanding the foregoing provisions of this
\nSection 8.01, Tenant need not comply with any law or requirement of any public
\nauthority referred to in Section 8.01(b) above, and Tenant shall not be
\nresponsible for the costs of compliance with any law or requirement of any
\npublic authority referred to in Section 8.01(c) above, in either case, so long
\nas Tenant shall be contesting the validity thereof, or the applicability
\nthereof, in accordance with Section 8.02.<\/p>\n
(f) The parties agree that nothing in this Section 8.01
\nis intended to, or shall be deemed to, impose any liability or obligation upon
\nTenant with respect to any violations of law or requirements of public
\nauthorities affecting the Premises on the date of this lease.<\/p>\n
8.02. Tenant, at its expense, after notice to Landlord, may
\ncontest, by appropriate proceedings prosecuted diligently and in good faith, the
\nvalidity or applicability of any law or requirement of any public authority,
\nprovided that (a) Tenant shall be obligated to comply with the same pursuant to
\nSection 8.01(b) above or responsible for the cost of complying with the same
\npursuant to Section 8.01(c) above, (b) no Event of Default shall have occurred
\nand be continuing, (c) neither Landlord nor any Landlord Party shall be subject
\nto criminal penalty or to prosecution for a crime, or any other fine or charge
\n(unless Tenant pays such other fine or charge), nor shall the Premises or any
\npart thereof or the Real Property or any part thereof, be subject to being
\ncondemned or vacated, nor shall the Real Property or any part thereof, be
\nsubjected to any lien or encumbrance, by reason of non-compliance or otherwise
\nby reason of such contest, unless such lien or encumbrance shall be bonded,
\ndischarged or otherwise removed of record within thirty (30) days after the
\ncreation of such lien or encumbrance, (d) if any Underlying Lease and\/or any
\nMortgage shall permit such non-compliance or contest on condition of the
\nfurnishing of security by Landlord or any Landlord Party, such security shall be
\nfurnished at the expense of Tenant, (e) such non-compliance or contest shall not
\nprevent Landlord or any other Condominium Party (as defined in Article 31
\nhereof) from (i) obtaining any and all permits and licenses in connection with
\nthe operation of the Real Property or (ii) performing any alterations, additions
\nor improvements in or to the Real Property or obtaining any and all permits and
\nlicenses in connection therewith, and (f) Tenant, upon request, shall keep
\nLandlord advised as to the status of such proceedings; in addition, Tenant shall
\nindemnify Landlord against any loss, cost, damage or expense (including
\nreasonably attorneys fees, but excluding consequential damages) incurred by
\nLandlord by reason of any such contest or any such deferral of<\/p>\n
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\ncompliance. Without limiting the application of the above, a party shall be
\ndeemed subject to prosecution for a crime if such party, as an individual, is
\ncharged with a crime of any kind or degree whatever, whether by service of a
\nsummons or otherwise, unless such charge is withdrawn before such party is
\nrequired to plead or answer thereto.<\/p>\n
8.03. Notwithstanding anything to the contrary contained
\nherein, as part of the Initial Alterations, Tenant shall perform all work and
\nmake all installations necessary in order to fully sprinkler the Premises in
\ncompliance with the provisions of Local Law 5 of the New York City
\nAdministrative Code, as approved January 18, 1973, as amended and as may be
\nhereafter amended from time to time through the completion of the Initial
\nAlterations.<\/p>\n
8.04. (a) Landlord, at its expense, shall comply with all
\npresent and future laws and requirements of any public authorities to the extent
\nthat the same require the performance of alterations, additions, improvements,
\nreplacements or repairs (whether the same are structural or non-structural,
\nordinary or extraordinary, foreseen or unforeseen) in, to or upon the Base
\nBuilding Premises Components, except to the extent that Tenant is obligated to
\ncomply therewith pursuant to the provisions of Section 8.01(b) or Section 8.03
\nhereof.<\/p>\n
(b) Landlord, at its expense (except as otherwise
\nprovided below), shall comply with all present and future laws and requirements
\nof public authorities to the extent that the same require compliance in, to or
\nupon the Base Building other than the Base Building Premises Components
\n(including without limitation compliance requiring the performance of
\nalterations, additions, improvements, replacements and repairs whether the same
\nare structural or non-structural, ordinary or extraordinary, foreseen or
\nunforeseen), but only to the extent that the failure to effect such compliance
\nwould subject Tenant to liability or adversely affect, other than to a de
\nminimis extent, (i) Tenant’s use or occupancy of the Premises, (ii) access to
\nthe Premises, (iii) the provision of Building Services to the Premises, or (iv)
\nTenant’s right and ability to perform Alterations which would otherwise be
\npermitted hereunder; provided, however, that such compliance shall be at
\nTenant’s expense to the extent Tenant is responsible for the cost of such
\ncompliance pursuant to Section 8.01(c) hereof; provided, further, however, that
\n(I) if Tenant is validly exercising its rights under Section 8.02 hereof to
\ncontest the validity or applicability of the law or requirement of public
\nauthority requiring such compliance, then, during the pendency of such contest,
\n(x) Landlord shall have no obligation under this Section 8.04 to effect such
\ncompliance, and (y) in the event that Landlord elects to effect such compliance,
\nthe same shall be at Landlord’s expense (as opposed to Tenant’s expense),
\nprovided that, in such event, Tenant shall reimburse Landlord the cost of such
\ncompliance to the extent that Landlord can demonstrate that such law or
\nrequirement of public authority was valid and applicable, and (II) except in
\ncases of emergency (in which cases no such notice or opportunity need by
\nfurnished or afforded), it shall be a condition precedent to Tenant’s obligation
\nto pay the costs of such compliance that Landlord shall have (A) furnished
\nTenant with reasonable prior notice of Landlord’s intention to effect such
\ncompliance at Tenant’s expense and (B) afforded Tenant a reasonable opportunity
\nto exercise its rights under the first sentence of Section 8.01(e) hereof such
\nthat, after the exercise thereof, such compliance is no longer required.<\/p>\n
(c) Notwithstanding the foregoing provisions of this
\nSection 8.04, Landlord may defer compliance with any law or requirements of
\npublic authorities with which it is obligated to comply hereunder, so long as
\nLandlord shall be contesting the validity or applicability thereof in good faith
\nby appropriate<\/p>\n
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\nproceedings, provided that (i) Tenant shall not be subject to criminal penalty
\nor to prosecution for a crime, or any other fine or charge (unless Landlord pays
\nsuch other fine or charge), (ii) neither the Premises (or any part thereof) nor
\nany part of the Real Property which affects the Premises or Tenant’s use and
\noccupancy thereof, shall be subject to being condemned or vacated, by reason of
\nnon-compliance or otherwise by reason of such contest, (iii) such non-compliance
\nor contest shall not prevent Tenant from lawfully occupying the Premises, or
\nperforming any Alterations (other than Section 8.01 Alterations) in the
\nPremises, or obtaining any and all permits and licenses required to be obtained
\nby it in connection therewith, and (iv) Landlord, after request, shall use
\nreasonable efforts to keep Tenant advised as to the status of such proceedings;
\nin addition, Landlord shall indemnify Tenant against any loss, cost, damage or
\nexpense (including reasonably attorneys fees, but excluding consequential
\ndamages) incurred by Tenant by reason of any such contest or any such deferral
\nof compliance.<\/p>\n
8.05. (a) If, as of the date hereof, the Core Lavatories do
\nnot comply with the Americans with Disabilities Act and the regulations
\nthereunder, as amended and in effect as of the date hereof (the “ADA”), then,
\nregardless of when such noncompliance shall become known, notwithstanding
\nanything to the contrary set forth in this lease, Landlord, at its sole cost and
\nexpense, shall perform any and all additional or other work needed to cause such
\nCore Lavatories to comply with the ADA. Tenant hereby agrees that Tenant shall
\nnot take any action or commence any proceeding to require Landlord to comply
\nwith the ADA as it relates to the Core Lavatories, unless (i) either (x) a
\ngovernmental body or agency asserts or alleges, in substance, that any Core
\nLavatory does not comply with the ADA, or (y) a customer or employee asserts or
\nalleges in writing, in substance, that any Core Lavatory does not so comply, and
\n(ii) on the basis of any such assertion or allegation described in clause (i)
\nabove, Tenant reasonably believes that (A) such Core Lavatory does not so
\ncomply, and (B) such non-compliance will give rise to liability on the part of
\nTenant to a governmental entity or to Tenant’s employees or other persons. The
\npreceding sentence shall not be deemed to limit Tenant’s rights under Section
\n18.02 hereof.<\/p>\n
(b) Tenant agrees that it shall reasonably cooperate, at
\nLandlord’s expense, with Landlord in its efforts (i) to comply with the ADA as
\nit relates to the Core Lavatories, and (ii) to demonstrate to the applicable
\ngovernmental authorities that the Core Lavatories do in fact comply with the
\nADA. Additionally, Tenant further agrees that if (x) the Core Lavatories on any
\nPremises Floor do not comply with the ADA, and (y) as a result thereof, Landlord
\nis required to take action in order to comply with the ADA on such Premises
\nFloor, then Landlord, at its sole cost and expense, shall have the right to
\nperform the work necessary to install within the Premises on each such Premises
\nFloor a unisex lavatory containing not more than 100 rentable square feet (each,
\na “UNISEX LAVATORY”); provided, however, that any Unisex Lavatory installed on
\nany Premises Floor shall be installed within the area of the Premises on such
\nPremises Floor designated on Exhibit P attached hereto (such Exhibit P is a
\nfloor plan which illustrates a typical floor plan for the Premises Floors). If
\nLandlord installs a Unisex Lavatory within the Premises on any Premises Floor,
\nthen, from and after the date upon which Landlord commences the construction
\nwork necessary for the installation of such Unisex Lavatory, the Fixed Rent,
\nTenant’s Operating Share and Tenant’s Tax Share thereafter in effect from time
\nto time hereunder shall be proportionately reduced based upon the relationship
\nwhich (1) the number of rentable square feet contained within the Unisex
\nLavatory plus the number of rentable square feet outside the Unisex Lavatory
\nwhich, by reason of the existence of the Unisex Lavatory, becomes<\/p>\n
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\nunusable, if any, bears to (2) the number of rentable square feet contained
\nwithin the Premises.<\/p>\n
8.06. (a) Landlord hereby represents that, to the best of its
\nknowledge, there are no asbestos-containing materials (“ACMS”) located on any
\nPremises Floor or in any Designated Conduit Areas (as hereinafter defined),
\nother than in or about the Acknowledged ACM Areas (as hereinafter defined). As
\nused herein, (i) the term “DESIGNATED CONDUIT AREAS” shall mean the areas
\nthrough which Tenant has the right to run pipes and conduits pursuant to Section
\n14.02(b), Section 16.11, Section 16.14 and Article 41 hereof, and (ii) the term
\n“ACKNOWLEDGED ACM AREAS” shall mean (x) each of the Designated Hot Decks (as
\ndefined in Section 41.09 hereof) and (y) the areas on any Premises Floor or in
\nany Designated Conduit Areas which are so delineated on one or more of the floor
\nplans attached hereto as Exhibit Q.<\/p>\n
(b) If, at anytime during the term of this lease, any
\nACMs (other than any ACMs installed by Tenant) are found to be located on any
\nPremises Floor outside of the Acknowledged ACM Areas or in any Designated
\nConduit Areas outside of the Acknowledged ACM Areas and Tenant notifies
\nLandlord, in writing, of the existence of such ACMs (herein called the
\n“ADDITIONAL NOTICED ACMS”), then, whether or not Landlord had knowledge of the
\nsame as of the date hereof, the following provisions shall apply:<\/p>\n
(1) If any Additional Noticed ACMs are required to be
\nremoved, encapsulated or otherwise treated by any law or requirement of public
\nauthority, then, notwithstanding anything to the contrary contained in the
\nforegoing provisions of this Article 8, Landlord, at its expense, shall promptly
\nremove, encapsulate or otherwise treat such Additional Noticed ACMs in
\naccordance with all laws and requirements of public authorities. With respect to
\nany Additional Noticed ACMs which Landlord is not required to remove pursuant to
\nthis Section 8.06(b)(1), Landlord, nevertheless (and irrespective of whether
\nLandlord is required to encapsulate or otherwise treat the same), may, at its
\noption, elect to remove the same at anytime, any such optional removal to done
\nin accordance with all laws and requirements of public authorities.<\/p>\n
(2) If, at anytime during the term of this lease, (i)
\nTenant shall inform Landlord, by written notice, that the existence of any
\nAdditional Noticed ACMs (which Landlord is not then required to remove pursuant
\nto Section 8.06(b)(1) above and which Landlord has not otherwise theretofore
\nelected to remove) will result in Tenant incurring increased costs to perform
\nAlterations which Tenant intends to perform, and which Tenant hereunder has the
\nright to perform, which notice shall (x) describe, in reasonable detail, the
\nparticular Alterations and Additional Noticed ACMs in question, and (y) set
\nforth Tenant’s best estimate of the total costs to perform such Alterations and
\nof the incremental portion of such costs which will be directly attributable to
\nthe existence of such Additional Noticed ACMs, and (ii) Landlord, within twenty
\n(20) Business Days after its receipt of such notice from Tenant, does not agree,
\nin writing, that Landlord will remove such Additional Noticed ACMs, then, and
\nonly in such events, Landlord will reimburse Tenant all incremental
\nout-of-pocket costs incurred by Tenant in performing such Alterations which are
\ndirectly attributable to the existence of such Additional Noticed ACMs, which
\nreimbursement shall be made by Landlord within thirty (30) days after its
\nreceipt of a statement from Tenant setting forth all such reimbursable costs and
\naccompanied by paid invoices therefor. If, pursuant to clause (ii) of this
\nSection 8.06(b)(2), Landlord agrees in writing that it will remove any
\nAdditional Noticed ACMs, then Landlord, at its expense, shall promptly
\nthereafter remove such<\/p>\n
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\n 70
\nAdditional Noticed ACMs in accordance with all laws and requirements of public
\nauthorities.<\/p>\n
ARTICLE 9<\/p>\n
Insurance<\/p>\n
9.01. Tenant shall not violate, or permit the violation of,
\nany condition imposed by any insurance policy then issued to Landlord, any
\nCondominium Party, any Mortgagee or any receiver in possession in respect of the
\nReal Property and shall not do, or permit anything to be done, or keep or permit
\nanything to be kept in the Premises which would (i) increase any insurance rate
\nin respect of the Real Property over the rate which would otherwise then be in
\neffect, (ii) result in insurance companies of good standing refusing to insure
\nthe Real Property in amounts reasonably satisfactory to Landlord, or (iii)
\nresult in the cancellation (in whole or in part) of, or give rise to any defense
\nby the insurer to claims under, any policy of insurance in respect of the Real
\nProperty. Tenant’s use of the Premises for the Primary Use in accordance with
\nthe provisions of this lease shall not, in and of itself, violate the provisions
\nof this Section 9.01. Tenant shall not be deemed in violation of the provisions
\nof this Section 9.01 unless and until Tenant receives notice thereof from
\nLandlord.<\/p>\n
9.02. If, by reason of any failure of Tenant to comply with
\nthe provisions of this lease, the premiums on any insurance of Landlord or any
\nCondominium Party on the Real Property shall be higher than they otherwise would
\nbe, then Tenant shall reimburse Landlord, on demand and as Additional Charges,
\nfor that part of such premiums attributable to such failure on the part of
\nTenant. A schedule or “make up” of rates for the Real Property or the Premises,
\nas the case may be, issued by the New York Fire Insurance Rating Organization or
\nother similar body making rates for insurance for the Real Property or the
\nPremises, as the case may be, shall be conclusive evidence of the facts therein
\nstated and of the several items and charges in the insurance rate then
\napplicable to the Real Property or the Premises, as the case may be.<\/p>\n
9.03. Tenant, at its expense, shall maintain at all times
\nduring the term of this lease (a) “all risk” property insurance covering
\nTenant’s Improvements and all Tenant’s Property to a limit of not less than the
\nfull replacement cost thereof with a deductible of not more than $10,000), (b)
\ncommercial general liability insurance (including a contractual liability
\nendorsement and an endorsement specifying that such insurance is primary and
\ndoes not require contribution by any insurance policy maintained by Landlord or
\nany other person or entity), and personal injury liability coverage, in respect
\nof the Premises and the conduct or operation of business therein, with Landlord,
\neach Condominium Party, the Building’s managing agent, if any, and each
\nUnderlying Lessor and Mortgagee whose name and address shall previously have
\nbeen furnished to Tenant, as additional insureds, with limits for bodily injury
\nand death of not less than Five Million ($5,000,000) Dollars for any occurrence
\ninvolving one person, Ten Million ($10,000,000) Dollars for any occurrence
\ninvolving two or more persons and not less than Five Million ($5,000,000)
\nDollars for property damage liability in any one occurrence, (c) steam boiler,
\nair conditioning or machinery insurance, if there is a boiler or pressure object
\nor similar equipment in the Premises and installed by Tenant, with Landlord,
\neach Condominium Party, the Building’s managing agent, if any, and each
\nUnderlying Lessor and Mortgagee whose name and address shall previously have
\nbeen furnished to Tenant, as additional insureds, with limits of not less than
\nFive Million ($5,000,000) Dollars, (d) Workers’ Compensation Insurance with
\ncoverage applicable in New York State<\/p>\n
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\n 71
\nwith limits in accordance with the statutory requirements of New York State,
\nwhich insurance shall contain provisions waiving underwriters’ rights of
\nsubrogation against Landlord, (e) Coverage B – Employer’s Liability Coverage,
\nincluding occupational disease with a limit of not less than $1,000,000 per
\naccident, which insurance shall contain provisions waiving underwriters’ rights
\nof subrogation against Landlord, and (f) when Alterations are in progress, the
\ninsurance specified in Section 11.06 hereof and\/or in the Alterations Rules and
\nRegulations (as hereinafter defined). The limits of such insurance shall not
\nlimit the liability of Tenant. Tenant shall deliver to Landlord, on or prior to
\nthe Commencement Date, such fully paid-for policies or certificates of
\ninsurance, in form reasonably satisfactory to Landlord, issued by the insurance
\ncompany or its authorized agent. Tenant shall procure and pay for renewals of
\nsuch insurance from time to time before the expiration thereof, and Tenant shall
\ndeliver to Landlord and any additional insureds such renewal policy or a
\ncertificate thereof at least thirty (30) days before the expiration of any
\nexisting policy. All such policies shall be issued by companies of recognized
\nresponsibility and rated by Best’s Insurance Reports or any successor
\npublication of comparable standing and carrying a rating of “B+” or better (or
\nthe then equivalent of such rating) with a financial size category of VIII or
\nbetter (or the then equivalent of such financial size), and all such policies
\nshall contain a provision whereby the same cannot be canceled or modified unless
\nLandlord and any additional insureds are given at least thirty (30) days’ prior
\nwritten notice of such cancellation or modification. Tenant shall have the right
\nto insure and maintain the insurance coverages set forth in this Section under
\nblanket insurance policies covering other premises occupied or owned by Tenant
\nand Affiliates of Tenant so long as such blanket policies comply as to terms and
\namounts with the insurance provisions set forth in this lease without
\nco-insurance; provided that upon request, Tenant shall deliver to Landlord a
\ncertificate of Tenant’s insurer evidencing the portion of such blanket insurance
\nallocated to the Premises.<\/p>\n
9.04. (a) During the term of this lease, Tenant shall include
\nin each of its insurance policies insuring Tenant’s Improvements and Tenant’s
\nProperty and the use thereof against loss, damage or destruction by fire or
\nother casualty, a waiver of the insurer’s right of subrogation against Landlord,
\neach Condominium Party and the Building’s managing agent or, if such waiver
\nshould be unobtainable or unenforceable, (i) an express agreement that such
\npolicy shall not be invalidated if the insured party waives the right of
\nrecovery against the person responsible for a casualty covered by the policy
\nbefore the casualty or (ii) any other form of permission for the release of
\nLandlord, each Condominium Party and the Building’s managing agent. If such
\nwaiver, agreement or permission shall not be, or shall cease to be, obtainable
\nfrom Tenant’s then current insurance company, then Tenant shall so notify
\nLandlord promptly after learning thereof, and shall use its best efforts to
\nobtain the same from another insurance company described in Section 9.03 hereof.
\nTenant hereby releases Landlord, each Condominium Party and the Building’s
\nmanaging agent, with respect to any claim (including a claim for negligence)
\nwhich it might otherwise have against Landlord, a Condominium Party and\/or the
\nBuilding’s managing agent, for loss, damage or destruction of or to any Tenant’s
\nImprovements and\/or Tenant’s Property, or the use thereof, to the extent to
\nwhich it is, or is required to be, insured under a policy or policies containing
\na waiver of subrogation or permission to release liability, as provided in this
\nSection 9.04(a).<\/p>\n
(b) Landlord shall include in each of its insurance
\npolicies insuring the Building and all Landlord’s property and interest therein
\nand the rents therefrom against loss, damage or destruction by fire or other
\ncasualty, a waiver<\/p>\n
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\nof the insurer’s right of subrogation against Tenant and any subtenant of the
\nPremises during the term of this lease or, if such waiver should be unobtainable
\nor unenforceable, (i) an express agreement that such policy shall not be
\ninvalidated if the insured party waives the right of recovery against the person
\nresponsible for a casualty covered by the policy before the casualty or (ii) any
\nother form of permission for the release of Tenant and any subtenant of the
\nPremises. If such waiver, agreement or permission shall not be, or shall cease
\nto be, obtainable from the then current insurance company of Landlord, then
\nLandlord shall so notify Tenant promptly after learning thereof, and shall use
\nits best efforts, to obtain the same from another insurance company described in
\nSection 9.03 hereof. Landlord hereby releases Tenant and any subtenant of the
\nPremises, with respect to any claim (including a claim for negligence) which it
\nmight otherwise have against Tenant or any subtenant of the Premises, for loss,
\ndamage or destruction of or to the Building or the rents therefrom to the extent
\nto which it is, or is required to be, insured under a policy or policies
\ncontaining a waiver of subrogation or permission to release liability, as
\nprovided in this Section 9.04(b).<\/p>\n
(c) Nothing contained in this Section 9.04 shall be
\ndeemed to relieve either Landlord or Tenant of any duty imposed elsewhere in
\nthis lease to repair, restore or rebuild or to nullify any abatement of rents
\nprovided for elsewhere in this lease.<\/p>\n
9.05. Landlord may from time to time require that the amount
\nof the insurance to be maintained by Tenant under Section 9.03 hereof be
\nincreased, so that the amount thereof is substantially equivalent to the amount
\ngenerally required of tenants by prudent landlords of Similar Buildings.<\/p>\n
9.06. Landlord shall keep and maintain (a) “all risk” property
\ninsurance covering the Building (not including Tenant’s Improvements, Tenant’s
\nProperty, or any other tenant improvements and betterments or tenant property)
\nto a limit of not less than the full replacement cost thereof, and (b)
\ncommercial general liability insurance (including a contractual liability
\nendorsement and an endorsement specifying that such insurance is primary and
\ndoes not require contribution by any insurance policy maintained by Tenant or
\nany other person or entity), and personal injury liability coverage, in respect
\nof the Real Property and the management, operation, repair and replacement
\nthereof, with Tenant, as additional insureds, with limits for bodily injury and
\ndeath of not less than Five Million ($5,000,000) Dollars for any occurrence
\ninvolving one person, Ten Million ($10,000,000) Dollars for any occurrence
\ninvolving two or more persons and not less than Five Million ($5,000,000)
\nDollars for property damage liability in any one occurrence, (c) steam boiler,
\nair conditioning or machinery insurance, if there is a boiler or pressure object
\nor similar equipment in the Real Property (other than any installed by any
\ntenant), with Tenant, as additional insureds, with limits of not less than Five
\nMillion ($5,000,000) Dollars, (d) Workers’ Compensation Insurance with coverage
\napplicable in New York State with limits in accordance with the statutory
\nrequirements of New York State, which insurance shall contain provisions waiving
\nunderwriters’ rights of subrogation against Tenant, (e) Coverage B – Employer’s
\nLiability Coverage, including occupational disease with a limit of not less than
\n$1,000,000 per accident, which insurance shall contain provisions waiving
\nunderwriters’ rights of subrogation against Tenant, and (f) when Landlord is
\nperforming alterations, additions or improvements in the Real Property,
\nappropriate Builder’s risk insurance and commercial general liability insurance
\nwith completed operations coverage. The limits of such insurance shall not limit
\nthe liability of Landlord. Landlord shall procure and pay for renewals of such
\ninsurance from time to time before the expiration thereof, and Landlord shall
\ndeliver to<\/p>\n
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\nTenant and any additional insureds such renewal policy or a certificate thereof
\nat least thirty (30) days before the expiration of any existing policy. All such
\npolicies shall be issued by companies of recognized responsibility and rated by
\nBest’s Insurance Reports or any successor publication of comparable standing and
\ncarrying a rating of “B+” or better (or the then equivalent of such rating) with
\na financial size category of VIII or better (or the then equivalent of such
\nfinancial size). Landlord shall have the right to insure and maintain the
\ninsurance coverages set forth in this Section 9.06 under blanket insurance
\npolicies covering other real property occupied or owned by Landlord and\/or
\nAffiliates of Landlord so long as such blanket policies comply as to terms and
\namounts with the insurance provisions set forth in this lease without
\nco-insurance.<\/p>\n
ARTICLE 10<\/p>\n
Rules and Regulations<\/p>\n
10.01. Tenant and its employees and agents shall faithfully
\nobserve and comply with the rules and regulations annexed hereto as Exhibit H,
\nand such reasonable changes therein, whether by addition, modification or
\nelimination, as Landlord at any time or times hereafter may make and communicate
\nin writing to Tenant, which, in the reasonable judgment of Landlord, shall be
\nnecessary for the reputation, safety, care and appearance of the Real Property,
\nor the preservation of good order therein, or the operation or maintenance of
\nthe Real Property, and which do not materially affect the conduct of Tenant’s
\nbusiness in the Premises or materially affect Tenant’s rights or obligations
\nunder this lease (such rules and regulations as changed from time to time being
\nherein called “RULES AND REGULATIONS”); provided, however, that in case of any
\nconflict or inconsistency between the provisions of this lease and any of the
\nRules and Regulations, the provisions of this lease shall control.<\/p>\n
10.02. Nothing in this lease contained shall be construed to
\nimpose upon Landlord any duty or obligation to enforce the Rules and Regulations
\nagainst Tenant or any other tenant or any employees or agents of Tenant or any
\nother tenant, and Landlord shall not be liable to Tenant for violation of the
\nRules and Regulations by another tenant or its employees, agents, invitees or
\nlicensees. Landlord shall not enforce against Tenant, and Tenant shall have no
\nobligation to comply with, any Rule or Regulation except to the extent that the
\nsame is applicable to, and enforced by Landlord against, all office tenants and
\noccupants of the Building other than any as to which or against which, on the
\nbasis of reasonable concerns of Landlord relating to the operation and
\nmaintenance of the Building, applied by Landlord in a non-discriminatory manner,
\nsuch Rule or Regulation is not applicable or not enforced.<\/p>\n
10.03. If Tenant, in good faith, shall dispute whether any
\nchange in the Rules and Regulations made and communicated by Landlord is
\nauthorized by the provisions of Section 10.01, then Tenant, at its option, may
\nelect to submit such dispute to arbitration in accordance with the provisions of
\nArticle 40 (in which arbitration the sole issue to be determined shall be
\nwhether such change is authorized by the provisions of Section 10.01); in order
\nso to submit such dispute to arbitration, Tenant shall so notify Landlord within
\nsixty (60) days after Tenant’s receipt of notice from Landlord of such change
\n(time being of the essence). Pending resolution of such dispute by arbitration,
\nTenant shall comply with such change; provided, however, that if (i) Tenant, in
\nthe aforesaid notice, shall notify Landlord that Tenant’s compliance with such
\nchange will immediately and materially affect the conduct of Tenant’s business
\nin the Premises or immediately and materially affect Tenant’s rights or<\/p>\n
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\nobligations under this lease, and (ii) Tenant’s non-compliance with such change
\nshall not adversely affect the health, safety or welfare of any other tenant or
\noccupant of the Building, then, and only then, Tenant shall not be required to
\ncomply with such change during the pendency of the arbitration proceeding.
\nTenant’s failure to submit such dispute to arbitration shall not constitute a
\nwaiver of Tenant’s right to later contest such change, by means other than
\narbitration, on the basis that the same was not authorized by the provisions of
\nSection 10.01.<\/p>\n
ARTICLE 11<\/p>\n
Alterations<\/p>\n
11.01. For purposes of this Article 11, the following
\nterms shall have the following meanings:<\/p>\n
(a) “ALTERATIONS” shall mean any alterations, additions,
\nimprovements or changes (the term “changes” to include without limitation any
\nremovals or demolition) of any nature which are performed, by or on behalf of
\nTenant, in, to or about the Building, including without limitation the Premises
\nand the Building Systems. “Alterations” shall not include any alterations,
\nadditions, improvements or changes which are performed by or on behalf of
\nLandlord.<\/p>\n
(b) “INITIAL ALTERATIONS” shall mean any and all
\nAlterations performed by or on behalf of Tenant in order to prepare the
\nInitially Demised Premises and the 47th Floor Space (as hereinafter defined) for
\nTenant’s initial occupancy thereof (and, unless otherwise expressly provided to
\nthe contrary, the term “Alterations” shall include Initial Alterations).<\/p>\n
(c) “MATERIAL ALTERATIONS” shall mean any Alterations
\nwhich (i) are not limited to the Premises or which affect the exterior of the
\nBuilding (it being understood that Alterations within the Premises shall not be
\ndeemed Material Alterations solely by reason of being visible from outside the
\nPremises), (ii) are structural or otherwise affect (other than to a de minimis
\nextent) the structural elements of the Building, (iii) affect the functioning or
\nperformance of the Building Systems (as hereinafter defined) in areas of the
\nBuilding outside of the Premises (other than to a de minimis extent), or (iv)
\nrequire permission from or notice to any governmental authority.<\/p>\n
(d) “EXTERIOR MATERIAL ALTERATIONS” shall mean any
\nMaterial Alterations described in clause (i) of Section 11.01(c) above;
\nexcluding, however, any such Material Alterations which are performed within one
\nor more electrical closets located on any Premises Floor even though such
\nelectrical closets are not part of the Premises.<\/p>\n
(e) “MINOR ALTERATIONS” shall mean any Alterations which
\nare not Material Alterations.<\/p>\n
(f) “PRE-AUTHORIZED ALTERATIONS” shall mean any
\nAlterations which, pursuant to the express provisions of any other Article of
\nthis lease, Tenant has been granted the right to perform; it being understood
\nthat if Tenant is granted to the right to perform any Alterations subject to any
\nspecified conditions, then such Alterations shall be deemed “Pre-Authorized
\nAlterations” only to the extent all such conditions shall have been satisfied.<\/p>\n
(g) “REQUIRED ALTERATIONS” shall mean any Alterations
\nwhich, pursuant to the express provisions of any other Article of this lease,
\nTenant has the obligation to perform; it being understood that Alterations may
\nbe both Required Alterations and Pre-Authorized Alterations.<\/p>\n
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\n 75
\n (h) “DISCRETIONARY ALTERATIONS” shall mean any
\nExterior Material Alterations which are not Pre-Authorized Alterations and\/or
\nRequired Alterations.<\/p>\n
(i) The term “PLANS AND SPECIFICATIONS” shall
\n(i) when used with respect to Material Alterations, mean a complete set of fully
\ndetailed and coordinated working drawings setting forth such Material
\nAlterations, and (ii) when used with respect to Minor Alterations, mean a
\ncomplete set of architectural drawings and, if applicable, mechanical
\nspecifications.<\/p>\n
11.02. (a) Tenant, subject to its compliance with the
\napplicable provisions of this lease, including without limitation the provisions
\nof this Article 11, may perform Minor Alterations without the need to obtain
\nLandlord’s approval. Tenant, not less than two (2) Business Days prior to
\ncommencing any Minor Alterations for which Tenant has retained a contractor,
\nshall give Landlord notice thereof, which notice shall include a description of
\nthe work to be performed, and, to the extent that plans and specifications
\ntherefor have been prepared by Tenant, such notice shall be accompanied by such
\nplans and specifications.<\/p>\n
(b) Tenant, subject to its compliance with the
\napplicable provisions of this lease, including without limitation the provisions
\nof this Article 11, may perform Material Alterations, provided that Tenant shall
\nhave first obtained Landlord’s prior written approval of such Material
\nAlterations as set forth on plans and specifications therefor, which approval,
\nother than with respect to Discretionary Alterations, shall not be unreasonably
\nwithheld. Tenant, prior to commencing any Material Alterations, shall request
\nLandlord’s approval thereof by written notice (each, a “MATERIAL ALTERATION
\nREQUEST NOTICE”), which notice shall (i) include a description of the work to be
\nperformed, and (ii) set forth, on the first page thereof, in capital letters,
\nthe following legend: AS MORE FULLY SET FORTH IN SECTION 11.02(b) OF THE LEASE,
\nLANDLORD’S FAILURE TO RESPOND TO THIS NOTICE WITHIN FIFTEEN (15) BUSINESS DAYS
\nOF ITS SUBMISSION TO LANDLORD MAY RESULT IN LANDLORD BEING DEEMED TO HAVE
\nAPPROVED THE PROPOSED MATERIAL ALTERATIONS DESCRIBED IN THE PLANS AND
\nSPECIFICATIONS ACCOMPANYING THIS NOTICE. Each Material Alteration Request Notice
\nshall be accompanied by reasonably detailed plans and specifications setting
\nforth the Material Alterations described therein. If Tenant shall request
\nLandlord’s approval of any Material Alterations pursuant to a complying Material
\nAlteration Request Notice and such notice shall be accompanied by reasonably
\ndetailed plans and specifications setting forth such Material Alterations as
\nhereinabove required, then, except with respect to Discretionary Alterations,
\nLandlord shall either approve or disapprove such Material Alterations as set
\nforth on such plans and specifications on or prior to the Material Alteration
\nPlan Review Deadline Date (as hereinafter defined) with respect to such Material
\nAlterations. If Landlord shall not grant or deny approval by the Material
\nAlteration Plan Review Deadline Date for any Material Alterations, Landlord’s
\napproval thereof shall be deemed to have been granted. As used herein the term
\n“MATERIAL ALTERATION PLAN REVIEW DEADLINE DATE”, with respect to any Material
\nAlterations, shall mean the fifteenth (15th) Business Day after the submission
\nto Landlord of a complying Material Alteration Request Notice requesting
\nLandlord’s approval of such Material Alterations which is accompanied by
\nreasonably detailed plans and specifications setting forth such Material
\nAlterations as hereinabove required; provided, however, that if prior to such
\nfifteenth (15th) Business Day, Landlord shall request from Tenant additional
\ninformation reasonably required by Landlord in order to make its decision, then
\nthe Material Alteration Plan Review Deadline Date with respect to such Material
\nAlterations shall be the fifteenth (15th) Business Day after Landlord’s receipt
\nof<\/p>\n
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\n 76
\nsuch additional information. Notwithstanding the foregoing, references in the
\nforegoing provisions of this Section 11.02(b) to “fifteen (15) Business Days” or
\nthe “fifteenth (15th) Business Day” shall, as applied to any Material
\nAlterations which are Initial Alterations, be deemed to be “twenty (20) Business
\nDays” or the “twentieth (20th) Business Day”.<\/p>\n
(c) (1) Tenant’s right to perform any Pre-
\nAuthorized Alterations shall nevertheless be conditioned upon (i) in the case of
\nMinor Alterations, Tenant first complying with provisions of Section 11.02(a),
\nand (ii) in the case of Material Alterations, Tenant first complying with
\nprovisions of Section 11.02(b) and, incident thereto, Tenant obtaining
\nLandlord’s approval of such Material Alterations as set forth on plans and
\nspecifications submitted by Tenant in accordance therewith; and<\/p>\n
(2) Tenant’s obligation to perform any Required
\nAlterations shall include an obligation of the part of Tenant to (i) in the case
\nof Minor Alterations, first comply with provisions of Section 11.02(a), and (ii)
\nin the case of Material Alterations, first comply with provisions of Section
\n11.02(b) and, incident thereto, obtain Landlord’s approval of such Material
\nAlterations as set forth on plans and specifications submitted by Tenant in
\naccordance therewith.<\/p>\n
(3) In addition, Tenant’s right to perform any
\nPre-Authorized Alterations or Required Alterations shall, as with all other
\nAlterations, be further subject to the other provisions of this Article 11
\n(Section 11.03 hereof through Section 11.12 hereof, inclusive).<\/p>\n
(d) Except as expressly permitted by this Article
\n11, Tenant shall not perform any Alterations.<\/p>\n
11.03. (a) (1) Tenant, in connection with any Material
\nAlterations, shall reimburse Landlord, as Additional Charges, for (i) all
\nreasonable out-of-pocket costs incurred by Landlord on an arms-length basis to
\noutside parties for reviewing plans and specifications submitted by Tenant (but
\nnot any costs incurred by Landlord for or in connection with the review thereof
\nby employees of Landlord or any Affiliate of Landlord), (ii) all reasonable
\nout-of-pocket costs incurred by Landlord on an arms-length basis to outside
\nparties for on-site inspections (but not any costs incurred by Landlord for or
\nin connection with on site inspections by employees of Landlord or any Affiliate
\nof Landlord), and (iii) any supervision and coordination costs incurred pursuant
\nto Section 11.03(c) below, whether the same are incurred to outside parties or
\nto Landlord’s employees.<\/p>\n
(2) Tenant shall pay to Landlord, as Additional
\nCharges, Landlord’s labor costs incurred in connection with the performance by
\nTenant of any Alterations on an overtime basis (i.e., after Business Hours on
\nBusiness Days), including, without limitation, all labor costs for overtime
\nhoisting and stand-by overtime personnel (including without limitation operating
\nengineers and stand-by electricians) payable in respect of periods other than
\nBusiness Hours on Business Days; provided, however, if any such labor shall
\nsimultaneously be used by Landlord in connection with any work by Landlord, or
\nby any other tenant or occupant of the Building in connection with any work by
\nsuch tenant or occupant, then such labor costs shall be equitably apportioned
\namong Tenant, Landlord and such other tenants or occupants, as applicable.<\/p>\n
(3) Tenant, in connection with any Alterations,
\nshall pay for and obtain directly all labor and carting for the cleanup and
\nremoval of debris.<\/p>\n
(4) All sums payable by Tenant to Landlord
\npursuant to this Section 11.03(a) shall be due thirty<\/p>\n
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\n 77
\n(30) days after demand therefor by Landlord, each of which demands shall set
\nforth with reasonable detail the manner in which the amount due thereunder was
\ncalculated.<\/p>\n
(b) Tenant agrees that any review or approval by
\nLandlord of any plans and\/or specifications with respect to any Alterations is
\nsolely for Landlord’s benefit, and without any representation or warranty
\nwhatsoever to Tenant with respect to the adequacy, correctness or efficiency
\nthereof or otherwise. No approval of plans or specifications by Landlord or
\nconsent by Landlord allowing Tenant to make Alterations shall in any way be
\ndeemed to be an agreement by Landlord that the contemplated Alterations comply
\nwith any laws and requirements of any public authorities or requirements of
\ninsurance bodies or the certificate of occupancy for the Building nor shall it
\nbe deemed to be a waiver by Landlord of the compliance by Tenant with any of the
\nterms of this lease (it being the intent of the parties that this sentence shall
\nnot be construed to mean that Landlord may take the position that Tenant failed
\nto obtain Landlord’s approval of the plans and specifications for an Alteration
\nafter Landlord has approved such plans and specifications). Notice is hereby
\ngiven that neither Landlord nor any Landlord Party shall be liable for any labor
\nor materials furnished or to be furnished to Tenant upon credit, and that no
\nmechanic’s or other lien for such labor or materials shall attach to or affect
\nany estate or interest of Landlord or any Landlord Party in and to the Premises,
\nthe Building or the Real Property.<\/p>\n
(c) To the extent that any Alterations permitted to be
\nmade hereunder, or any portions thereof, require work to be performed outside of
\nthe Premises, such work shall be performed only at such time or times as are
\nreasonably designated by Landlord, and, at Landlord’s option, under the
\nsupervision of Landlord or its designated representative. Landlord shall have
\nthe right to coordinate such work with any of work then being undertaken by
\nLandlord or by any other tenants of the Building.<\/p>\n
11.04. (a) Tenant shall perform Alterations using only
\ncontractors that are first approved by Landlord with respect to such Alterations
\nin writing, which approval shall not be unreasonably withheld. Landlord’s
\napproval of any trade contractor shall be solely with respect to the trade or
\ntrades in which it is engaged and for which approval is requested. Landlord
\nshall not have the right to designate one or a limited number of general
\ncontractors or, except as provided in Section 11.04(c), one or a limited number
\nof trade contractors for any trade; provided, however, that this sentence shall
\nnot require Landlord to approve any general or trade contractor as to which
\nLandlord (acting in accordance with the first sentence of this Section 11.04(a)
\nand without regard to the number of general contractors or trade contractors for
\nany trade then approved) is permitted to withhold approval.<\/p>\n
(b) Any contractor that Landlord hereafter approves in
\nwriting in connection with any Alterations, shall be deemed approved for a
\nperiod of one (1) year from the date of Landlord’s notice approving such
\ncontractor, unless Landlord, upon notice to Tenant, thereafter elects to revoke
\nits approval of any such contractor, in which event, such contractor, upon the
\ngiving of such notice to Tenant, shall no longer be deemed approved (except that
\nsuch contractor shall remain approved with respect to any contract that Tenant
\nshall have theretofore entered into with such contractor prior to the giving of
\nsuch notice).<\/p>\n
(c) Notwithstanding anything to the contrary set forth
\nin subsections (a) or (b) above or elsewhere in this lease, Tenant shall only be
\npermitted to use Landlord’s designated life safety system contractor to make
\nconnections between the Building’s life safety system and the sensors,<\/p>\n
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\n 78
\nstrobes, speakers alarms and other terminal devices installed by
\nTenant.<\/p>\n
(d) Without limiting the generality of the foregoing,
\nLandlord hereby approves with respect to the Initial Alterations, the
\ncontractors listed on Exhibit I annexed hereto; the contractors so listed shall
\nbe deemed approved for the duration of the Initial Alterations.<\/p>\n
(e) All contractors approved or designated by Landlord
\npursuant to this Section 11.04 shall be subject to the provisions of Sections
\n11.05 and 11.07 hereof.<\/p>\n
11.05. Tenant shall, and shall cause its contractors to,
\nfaithfully observe and comply with the alteration rules and regulations annexed
\nhereto as Exhibit J, and such reasonable changes therein (whether by addition,
\nmodification or elimination) as Landlord at any time or times hereafter may make
\nand communicate in writing to Tenant, which, in the reasonable judgment of
\nLandlord, shall be necessary for the reputation, safety, care and appearance of
\nthe Real Property, or the preservation of good order therein, or the operation
\nor maintenance of the Real Property, and which do not materially affect the
\nperformance of Alterations in the Premises or materially affect Tenant’s rights
\nor obligations under this lease (such alteration rules and regulations as
\nchanged from time to time being herein called “ALTERATION RULES AND
\nREGULATIONS”); provided, however, that in case of any conflict or inconsistency
\nbetween any of the provisions of this Article 11 and any of the provisions of
\nthe Alteration Rules and Regulations, the provisions of this Article 11 shall
\ncontrol. The provisions of Sections 10.02 and 10.03 shall apply, mutatis
\nmutandis, to the Alteration Rules and Regulations.<\/p>\n
11.06. (a) Tenant, at its expense, shall obtain (and furnish
\ntrue and complete copies to Landlord of) all necessary governmental permits and
\ncertificates for the commencement and prosecution of Alterations and for final
\napproval thereof upon completion, and shall cause Alterations to be performed in
\ncompliance therewith, with all applicable laws and requirements of public
\nauthorities, with all applicable requirements of insurance bodies and, if
\napplicable, with the plans and specifications approved by Landlord. Landlord,
\nwithin three (3) Business Days after its receipt of a written request from
\nTenant therefor, shall execute (and provide any readily accessible information
\nknown by Landlord for) any permit applications and similar documents reasonably
\nrequired in connection with obtaining such permits and certificates and any such
\nfinal approvals, provided that such applications and documents are in proper
\nform; provided, however, that neither Landlord’s execution of such applications
\nand documents nor its provision of information shall constitute Landlord’s
\napproval of any Alterations described in such applications or documents, and, if
\nLandlord, pursuant to Section 11.02 hereof, shall disapprove any Alterations
\ndescribed in such applications or documents, then any such applications and
\ndocuments, as well as any permits, certificates and approvals obtained thereby,
\nshall be promptly withdrawn or canceled by Tenant. Tenant hereby agrees that it
\nshall (i) reimburse Landlord all Landlord’s out-of-pocket expenses incurred in
\nconnection with Tenant’s obtaining of any such permits, certificates or
\napprovals (including without limitation those incurred in connection with
\nLandlord’s execution of any permit applications and similar documents, or its
\nprovision of information, as provided in the preceding sentence), and (ii) and
\nindemnify and hold harmless Landlord against any and all liabilities which
\nLandlord may incur by reason of its execution of any permit applications and
\nsimilar documents, or its provision of information, as provided in the preceding
\nsentence; provided, however, that neither such reimbursement nor such indemnity
\nshall include any such expenses or liabilities to<\/p>\n
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\n 79
\nthe extent that (A) Landlord is responsible therefor under any other provision
\nof this lease, (B) the same would be, or would have been, discharged, satisfied
\nor avoided by Landlord’s performance of its obligations under this lease, or (C)
\nthe same arise out of any inaccuracy in any information provided by Landlord.<\/p>\n
(b) Alterations shall be diligently performed in a good
\nand workmanlike manner, using materials at least equal in quality and class to
\nthe then standards for the Building.<\/p>\n
(c) Alterations (including the Initial Alterations)
\nshall be performed in such manner as not to unreasonably interfere with or delay
\nand as not to impose any additional expense (except to the extent Tenant
\nreimburses Landlord therefor) upon Landlord in the construction, maintenance,
\nrepair or operation of the Real Property; if the performance of an Alteration
\nwill impose any additional expense upon Landlord, then Landlord shall advise
\nTenant of the amount of such additional expense promptly after Landlord becomes
\naware of such amount.<\/p>\n
(d) Throughout the performance of Alterations, Tenant,
\nat its expense, shall carry, or cause to be carried, (i) workers’ compensation
\ninsurance in statutory limits, (ii) general liability insurance, with completed
\noperation endorsement, for any occurrence in or about the Premises (or, if
\napplicable, any other area of the Real Property in which the Alterations in
\nquestion are being performed), under which Landlord and its managing agent, if
\nany, and any Underlying Lessor and Mortgagee whose name and address shall
\npreviously have been furnished to Tenant shall be named as parties insured, in
\nsuch limits as Landlord may reasonably require, and (iii) “all risk” Builders
\nRisk coverage, all with insurers reasonably satisfactory to Landlord. Tenant
\nshall furnish Landlord with reasonably satisfactory evidence that such insurance
\nis in effect at or before the commencement of Alterations and, on request, at
\nreasonable intervals thereafter during the continuance of Alterations.<\/p>\n
(e) The provisions of Section 12.02 hereof shall not be
\ndeemed to prohibit Tenant from removing during the term of this lease any or all
\nof Tenant’s Improvements (or, after the 47th Floor Space (as hereinafter
\ndefined) is leased hereunder, any or all of the PSI 47th Floor Improvements (as
\nhereinafter defined)); provided, however, that (i) any such removal shall be
\ndeemed Alterations and, accordingly, Tenant’s right to perform the same shall be
\nsubject to the provisions of this Article 11, and (ii) no such removal shall be
\neffected within the last twelve (12) months of the term, unless the such removal
\nis effected for a legitimate business purpose and the same does not leave the
\nPremises or any other portion of the Building in an unsafe condition. The
\nremoval of the PSI 47th Floor Improvements shall be deemed Pre-Authorized
\nAlterations. As used herein, the “PSI 47TH FLOOR IMPROVEMENTS” shall mean any of
\nthe improvements, betterments, fixtures, equipment and appurtenances affixed to,
\nattached to, built into or otherwise installed in or on the 47th Floor Space by
\nPSI.<\/p>\n
11.07. Tenant shall not exercise any of its rights pursuant to
\nthe provisions of this Article 11 or Article 13 in a manner which would violate
\nLandlord’s union contracts affecting the Real Property, or create any work
\nstoppage, picketing, labor disruption or dispute or any interference (other than
\nde minimis interference) with the operation of the Building by (or for)
\nLandlord. In addition, Tenant shall not enter into any service contract in
\nrespect of Tenant’s Improvements (as opposed to Tenant’s Property) or any
\ncleaning contract, if any such contract or the performance of work thereunder
\nwould violate Landlord’s union contracts affecting the Real Property, or create
\nany work<\/p>\n
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\nstoppage, picketing, labor disruption or dispute or any interference (other than
\nde minimis interference) with the operation of the Building by (or for)
\nLandlord. Tenant shall immediately stop any work or other activity under this
\nArticle 11 or Article 13 or pursuant to one or more of the aforementioned
\ncontracts if Landlord notifies Tenant that continuing such work or activity
\nwould violate Landlord’s union contracts affecting the Real Property, or create
\nany work stoppage, picketing, labor disruption or dispute or any interference
\n(other than de minimis interference) with the operation of the Building by (or
\nfor) Landlord, provided such notice sets forth a reasonably detailed explanation
\nof the circumstances giving rise to the delivery of such notice.<\/p>\n
11.08. Tenant, at its expense, and with diligence and
\ndispatch, shall procure the cancellation or discharge of all notices of
\nviolation arising from or otherwise connected with Alterations, or any other
\nwork, labor, services or materials done for or supplied to Tenant, or any person
\nclaiming through or under Tenant, which shall be issued by the Department of
\nBuildings of the City of New York or any other public authority having or
\nasserting jurisdiction; provided, however, that Tenant may defer procuring such
\ncancellation or discharge so long as Tenant is contesting such notice of
\nviolation, or the validity or applicability thereof, in accordance with Section
\n8.02. Tenant shall defend, indemnify and save harmless Landlord from and against
\nany and all mechanic’s and other liens and encumbrances filed in connection with
\nAlterations, or any other work, labor, services or materials done for or
\nsupplied to Tenant, or any person claiming through or under Tenant, including,
\nwithout limitation, security interests in any materials, fixtures or articles so
\ninstalled in and constituting part of the Premises and against all costs,
\nexpenses and liabilities incurred in connection with any such lien or
\nencumbrance or any action or proceeding brought thereon. Tenant, at its expense,
\nshall procure the satisfaction or discharge of record by bonding, payment or
\notherwise, of all such liens and encumbrances within thirty (30) days after
\nknowledge or notice thereof.<\/p>\n
11.09. Tenant, promptly upon the completion of any
\nAlterations, other than Decorating, shall deliver to Landlord “as built”
\ndrawings of such Alterations, or, in the event Tenant does not have “as built”
\ndrawings prepared, a set of construction drawings marked to show any change(s)
\nmade during construction.<\/p>\n
11.10. All Tenant’s Improvements shall be fully paid for by
\nTenant in cash and shall not be subject to conditional bills of sale, chattel
\nmortgage or other title retention agreements. Tenant, however, may lease or
\nfinance purchases of Tenant’s Property, provided that, in conducting any entry
\nto and removal of fixtures or equipment from the Premises and\/or the Building,
\nany lessor, vendor or lender shall, (a) prior to entry, provide Landlord upon
\nLandlord’s request with evidence of appropriate liability insurance as
\nreasonably determined by Landlord, (b) use reasonable care, (c) repair all
\ndamage caused by its activities in or about the Real Property, and (d) comply
\nwith applicable law. In the event of a default by Tenant under this lease,
\nLandlord shall not be required to notify any such vendor, lessor or lender prior
\nto exercising Landlord’s rights and remedies under this lease. Notice is hereby
\ngiven that neither Landlord nor any Landlord Party shall be liable for any labor
\nor materials furnished or to be furnished to Tenant upon credit, and that no
\nmechanics’ or other lien for such labor or materials shall attach to or affect
\nany estate or interest of Landlord or any Landlord Party in any part of the Real
\nProperty.<\/p>\n
11.11. Tenant, within forty-five (45) days after a request by
\nLandlord, shall furnish to Landlord copies of all records with respect to
\nAlterations and the cost thereof then in Tenant’s possession, if the same shall
\nbe required in connection<\/p>\n
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\nwith any proceeding to reduce the assessed valuation of the Real Property, or in
\nconnection with any proceeding instituted pursuant to Article 8 hereof or for
\nany other valid business reason or purpose.<\/p>\n
11.12. (a) Before proceeding with any Alteration (other than
\nthe Initial Alterations) the cost of which, when aggregated with the cost of all
\nother Alterations which have not then been completed, will cost more than
\none-twentieth (1\/20) of the then net worth of Tenant computed in accordance with
\ngenerally accepted accounting principles consistently applied (exclusive of the
\ncosts of Decorating and items constituting Tenant’s Property), as such cost is
\nestimated by a reputable contractor designated by Landlord, Tenant shall furnish
\nto Landlord one of the following (as selected by Tenant): (i) a cash deposit,
\n(ii) an irrevocable, unconditional, negotiable letter of credit, issued by and
\ndrawn on a bank or trust company which is a member of the New York Clearing
\nHouse Association naming Landlord as beneficiary and in a form reasonably
\nsatisfactory to Landlord or (ii) a payment and performance bond issued by a
\nbonding company reasonably satisfactory to Landlord naming Landlord as
\nbeneficiary, and in a form reasonably satisfactory to Landlord (it being agreed
\nthat a bond which requires any payment as a condition to the bonding company
\nperforming its obligations under the bond shall not be a form reasonably
\nsatisfactory to Landlord); each to be in an amount equal to one hundred
\ntwenty-five (125%) percent of the cost of the Alteration, estimated as set forth
\nabove; provided, however, if the security provided by Tenant is a cash deposit
\nor letter of credit pursuant to subclauses (i) or (ii) above, the amount thereof
\nshall be the lesser of (x) 125% of the cost of the Alteration, estimated as set
\nforth above or (y) the amount by which (1) the sum of the cost of the Alteration
\nin question plus the cost of all other Alterations which have not then been
\ncompleted exceeds (2) the amount which is 1\/20th of the then net worth of
\nTenant. Any such letter of credit shall be for one year and shall be renewed by
\nTenant each and every year until the Alteration in question is completed and
\nshall be delivered to Landlord not less than thirty (30) days prior to the
\nexpiration of the then current letter of credit. Failure to deliver such new
\nletter of credit on or before said date shall give Landlord the right, inter
\nalia, to present the then current letter of credit for payment. Upon Landlord’s
\nrequest made in connection with any Alteration proposed to be made by Tenant
\nwhich Landlord reasonably believes might cost in excess of 1\/20th of the then
\nnet worth of Tenant, but not, in any case, more often than once in any calendar
\nyear, Tenant shall submit to Landlord a balance sheet of Tenant, prepared in
\naccordance with generally accepted accounting principles consistently applied,
\nas of the end of the most recent calendar year, together with a certification of
\nthe Chief Financial Officer of Tenant certifying that such balance sheet is true
\nand correct and accurately reflects the net worth of Tenant as of its date.<\/p>\n
(b) Upon (i) the completion of the Alteration in
\naccordance with the terms of this Article 11 and (ii) the submission to Landlord
\nof proof evidencing the payment in full for said Alteration, the security
\ndeposited with Landlord (or the balance of the proceeds thereof, if Tenant has
\nfurnished cash or a letter of credit and if Landlord has drawn on the same)
\nshall be returned promptly to Tenant.<\/p>\n
(c) Upon the Tenant’s failure to properly perform,
\ncomplete and fully pay for all sums due for the said Alteration, Landlord shall
\nbe entitled to draw on the security deposited under this Article 11 to the
\nextent it deems necessary in connection with the said Alteration, the
\nrestoration and\/or protection of the Premises or the Real Property and the
\npayment or satisfaction of any costs, damages or expenses in connection<\/p>\n
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\nwith the foregoing and\/or Tenant’s obligations under this Article
\n11.<\/p>\n
ARTICLE 12<\/p>\n
Tenant’s Improvements and Tenant’s Property<\/p>\n
12.01. For purposes of this lease, the following terms
\nshall have the following meanings:<\/p>\n
(a) The term “TENANT’S IMPROVEMENTS” shall mean all
\nimprovements, betterments, fixtures (other than trade fixtures), equipment and
\nappurtenances affixed to, attached to, built into, or otherwise installed in or
\non, the Building by or on behalf of Tenant (whether or not at Tenant’s expense)
\nduring the term of this lease, inclusive of all such improvements, betterments,
\nfixtures, equipment and appurtenances installed as part of either the Initial
\nAlterations or subsequent Alterations (other than Tenant’s Structural Work (as
\nhereinafter defined) and the Fire Tower Work (as hereinafter defined) or, as the
\ncase may be, the Hot Deck Work (as hereinafter defined)), including without
\nlimitation (i) all installations, systems and facilities installed in or about
\nthe Building by or on behalf of Tenant (whether wholly within the Premises,
\nwholly without the Premises, or partly within and partly without the Premises),
\n(ii) Tenant’s line, riser and other connections to any such installations,
\nsystems and facilities, (iii) Tenant’s lines and other connections to the
\nBuilding Systems, (iv) raised floors, and (v) all wiring and cabling installed
\nbelow such raised floors, above hung ceilings, or within any shaft, wall or
\nfixed partition; but excluding, in all cases, Tenant’s Property.<\/p>\n
(b) The term “TENANT’S PROPERTY” shall mean all
\narticles of movable personal property owned or leased by Tenant and located in
\nthe Premises, including without limitation office furniture and furnishings,
\ntrade fixtures, business equipment, office machinery, movable partitions,
\ncommunications equipment, and wiring and cabling not included in clause (v) of
\nSection 12.01(a).<\/p>\n
12.02. (a) All Tenant’s Improvements, as they exist upon the
\nexpiration or earlier termination of the term of this lease, shall be and remain
\na part of the Building and shall be deemed Landlord’s property, and,
\naccordingly, Tenant’s Improvements shall not be removed by Tenant upon the
\nexpiration or earlier termination of this lease.<\/p>\n
(b) Notwithstanding the foregoing or anything else to
\nthe contrary that may be contained herein, if (I) after the expiration or
\nearlier termination of the term of this lease, Landlord, in its sole discretion,
\neffects a demolition of the entirety of the Premises located on any Premises
\nFloor, and (II) such demolition is effected prior to any part of the Premises
\nlocated on such Premises Floor being occupied by any new tenant or occupant for
\nthe conduct of its business for a period exceeding twelve (12) full calendar
\nmonths, then, and in each such case, Tenant, within thirty (30) days after a
\nwritten demand therefor, shall reimburse Landlord one-half (1\/2) of the
\naggregate costs reasonably incurred by Landlord in effecting such demolition. As
\nused herein, the “DEMOLITION”, of any portion of the Premises, shall mean the
\nremoval of all or substantially all of the Tenant’s Improvements located in such
\nportion of the Premises and, following such removal, the restoration of such
\nportion of the Premises to a condition substantially similar to that existing as
\nof the date hereof.<\/p>\n
(c) (1) As used herein, the following terms shall have
\nthe following meanings:<\/p>\n
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\n (A) The term “SECTION 12.02(c) EXTERIOR
\nIMPROVEMENTS” shall mean, collectively, all the Tenant’s Improvements located
\noutside the Premises (including without limitation any or all of the Tenant’s
\nImprovements installed pursuant to the provisions of Article 41 hereof) and all
\nthe Structural Work Improvements; excluding, however, (I) the Non-Removable
\nExterior Improvements and (II) except in cases where this lease is terminated
\npursuant to a Non-Scheduled Early Termination, the Designated Exterior
\nImprovements.<\/p>\n
(B) The “SECTION 12.02(c) WORK” shall mean all
\nthe work required to (i) remove from the Building all the Section 12.02(c)
\nExterior Improvements, and (ii) restore the applicable areas of the Building to
\ntheir condition prior to the installation of such Section 12.02(c) Exterior
\nImprovements, ordinary wear and tear excepted.<\/p>\n
(C) The term “NON-REMOVABLE EXTERIOR
\nIMPROVEMENTS” shall mean, collectively, (i) the portions of the Tenant’s
\nImprovements located outside the Premises which consist of (w) electrical
\nconduits (as opposed to the wiring and cabling therein), as well as the
\nenclosures within which such conduits are located, (x) communications conduits
\n(as opposed to the wiring and cabling therein), as well as the enclosures within
\nwhich such conduits are located, (y) fuel pipes to Tenant’s Fuel Tank and
\nconnecting Tenant’s Fuel Tank to Tenant’s Generator, as well as the enclosures
\nwithin which such pipes are located, and (z) chilled water pipes (other than
\ntapered chilled water pipes), as well as the enclosures within which such pipes
\nare located, and (ii) the steel plating of perimeter columns done as part of
\nTenant’s Structural Work or the Penthouse Work (as hereinafter defined).<\/p>\n
(D) The term “DESIGNATED EXTERIOR IMPROVEMENTS”
\nshall mean, collectively, those portions of the Tenant Improvements located
\noutside the Premises and\/or the Structural Work Improvements which Landlord, by
\none or more written notices to Tenant (collectively, the “SECTION 12.02(c)
\nDESIGNATION NOTICES”), designates as improvements which are to remain at the end
\nof the term of this lease. Any Section 12.02(c) Designation Notice which is
\nreceived by Tenant after the date that is one hundred and eighty (180) days
\nprior to Expiration Date (or, if applicable, the date of an earlier termination
\nhereof), shall be effective to designate only the portion of the improvements
\nmentioned therein that have not theretofore been removed.<\/p>\n
(E) The term “NON-SCHEDULED EARLY TERMINATION”
\nshall mean any termination of this lease prior to the Expiration Date, other
\nthan such an early termination pursuant to either of Articles 7 or 37 hereof.<\/p>\n
(2) Except in cases where this lease is terminated
\npursuant to a Non-Scheduled Early Termination, Tenant, subject to and in
\naccordance with the provisions of Article 11 hereof, shall, at its expense,
\nperform all the Section 12.02(c) Work and shall complete the same on or prior to
\nthe Expiration Date (or, if this lease shall be terminated prior to the
\nExpiration Date other than pursuant to a Non-Scheduled Early Termination, or
\nprior to the date of such termination). If, and to the extent that, Tenant fails
\nto complete the Section 12.02(c) Work on or prior to the Expiration Date (or
\nsuch termination date), then Landlord, at anytime thereafter, may, at its
\noption, perform Tenant’s Section 12.02(c) Work at Tenant’s expense. If, and to
\nthe extent that, Landlord performs any of the Section 12.02(c) Work at Tenant’s
\nexpense pursuant to the foregoing provisions of this Section 12.02(c)(2), then
\nTenant, from time to time within thirty (30) days after any written demand
\ntherefor, shall reimburse Landlord the costs theretofore incurred by Landlord in
\nthe prosecution of such the Section 12.02(c) Work,<\/p>\n
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\ntogether with interest thereon at the Interest Rate for the period from the date
\nsuch costs were paid by Landlord to the date of such reimbursement.<\/p>\n
(3) In any case where this lease is terminated
\npursuant to a Non-Scheduled Early Termination, Landlord, may elect, at its
\noption and at Tenant’s expense, to perform the whole or any portion of the
\nSection 12.02(c) Work after the date of such termination. If, and to the extent
\nthat, Landlord elects to perform the Section 12.02(c) Work, such work (i) shall
\nbe commenced on or prior to the date that is eighteen (18) months after the date
\nof such termination of this lease, and (ii) subject to Force Majeure, shall be
\ncompleted not later than the date that is twenty-four (24) months after the date
\nof such termination. If, and to the extent that, Landlord performs the Section
\n12.02(c) Work pursuant to the foregoing provisions of this Section 12.02(c)(3),
\nthen Tenant, from time to time within thirty (30) days after any written demand
\ntherefor, shall reimburse Landlord the reasonable out-of-pocket costs
\ntheretofore incurred by Landlord in the prosecution of such Section 12.02(c)
\nWork.<\/p>\n
12.03. All Tenant’s Property shall be and shall remain the
\nproperty of Tenant throughout the term of this lease and may be removed by
\nTenant at any time during the term of this lease (or, if applicable, within the
\n15-day period referred to below). On or prior to the Expiration Date (or within
\nfifteen (15) days after any earlier termination of this lease), Tenant, at its
\nexpense, shall remove all Tenant’s Property from the Premises. Tenant shall
\nrepair any damage to the Building (including without limitation the Premises)
\ncaused by such removal. Any items of Tenant’s Property which shall remain in the
\nPremises after the Expiration Date (or, as the case may be, within fifteen (15)
\ndays following the earlier termination of this lease), may, at the option of
\nLandlord, be deemed to have been abandoned, and in such case such items may be
\nretained by Landlord as its property or disposed of by Landlord, without
\naccountability, in such manner as Landlord shall determine and at Tenant’s
\nexpense.<\/p>\n
ARTICLE 13<\/p>\n
Repairs and Maintenance<\/p>\n
13.01. (a) Tenant, throughout the term of this lease, shall,
\nat its expense, take good care of and maintain in good order and condition, and
\nshall be responsible for all repairs and replacements (ordinary and
\nextraordinary, foreseen and unforeseen) to (i) the Premises (but not the Base
\nBuilding Premises Components, except as provided below), and (ii) all Tenant’s
\nImprovements whether within or outside of the Premises. Without limiting the
\ngenerality of the foregoing, Tenant, at its expense, shall promptly replace all
\ndamaged or broken doors (including, without limitation, entrance doors) and all
\ninterior glass in and about the Premises. Notwithstanding the foregoing, Tenant
\nshall not be responsible for any repairs or replacements under this Section
\n13.01(a) to the extent that Landlord is responsible for the same under Section
\n13.02(b) hereof.<\/p>\n
(b) Tenant, in addition, shall be responsible for all
\nrepairs and replacements, interior and exterior, structural and non-structural,
\nordinary and extraordinary, foreseen and unforeseen, in and to (x) the Real
\nProperty outside of the Premises (exclusive of any Tenant Improvements outside
\nof the Premises) and (y) the Base Building Premises Components (whether within
\nor outside of the Premises), in each case, to the extent the need for which
\narises out of (i) the performance of Alterations, or the installation, use,
\noperation or existence of any Tenant’s Improvements or Tenant’s Property
\n(provided, however, that Tenant shall not be responsible therefor under this<\/p>\n
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\nclause (i) to the extent that the repair or replacement in question would not
\nhave been needed but for (x) a violation by Landlord of its obligations under
\nthis lease, or (y) a representation made by Landlord hereunder being untrue),
\n(ii) the moving by or on behalf of Tenant of any Tenant’s Improvements or
\nTenant’s Property in or out of the Building or between different floors or parts
\nof the Building or the Premises, (iii) any violation by Tenant of the provisions
\nof this lease, or (iv) the negligence or intentional misconduct of Tenant, any
\nTenant Party or any of their agents, contractors or invitees.<\/p>\n
(c) The maintenance, repairs and replacements for which
\nTenant is responsible pursuant to the provisions of this Section 13.01 (herein
\ncalled “TENANT REPAIRS”) shall be performed in accordance with the following
\nprovisions:<\/p>\n
(1) Tenant shall perform all Tenant Repairs for which
\nTenant is responsible pursuant to Section 13.01(a) above promptly, at its
\nexpense, and in a manner which will not interfere (in other than a de minimis
\nmanner) with the use of the Building by others. If, and to the extent that, such
\nTenant Repairs are to Tenant’s Improvements located outside the Premises or
\notherwise require work to be performed outside of the Premises, then (i) such
\nwork shall be performed only at such time or times as are reasonably designated
\nby Landlord, and, at Landlord’s option, under the supervision of Landlord or its
\ndesignated representative, (ii) Landlord shall have the right to coordinate such
\nwork with any work then being undertaken by Landlord or by any other tenants of
\nthe Building, and (iii) Tenant, within thirty (30) days after a written demand
\ntherefor, shall reimburse Landlord all supervision and coordination costs
\nincurred by Landlord pursuant to clauses (i) or (ii) above (whether incurred to
\nLandlord’s employees or outside parties); provided, however, that, in cases of
\nemergency, Tenant, subject to the rights of other tenants, may perform such work
\nat any time or times (to the extent necessitated by such emergency), so long as
\nTenant, immediately prior to commencing any such work, shall give Landlord
\nnotice of the emergency and the work to be performed (which notice may be oral
\nand shall be given to the applicable Building Office or, if such Building Office
\nis closed, the Building’s security desk).<\/p>\n
(2) Landlord, at its option, may elect to perform
\nTenant Repairs for which Tenant is responsible pursuant to Section 13.01(b)
\nabove (each, a “TENANT BUILDING REPAIR”) at Tenant’s expense. If Tenant notifies
\nLandlord of the need for any Tenant Building Repair, then Landlord shall
\npromptly notify Tenant as to whether Landlord elects to perform such Tenant
\nBuilding Repair, at Tenant’s expense, or to have Tenant perform such repair. In
\nall cases, except in cases of emergency (in which cases Landlord need not so
\nnotify Tenant), Landlord, prior to commencing any Tenant Building Repair, shall
\nnotify Tenant that Landlord has elected to perform the same at Tenant’s expense.<\/p>\n
(A) To the extent that Landlord elects to
\nperform any Tenant Building Repair at Tenant’s expense, (i) Landlord shall
\nperform the same promptly, and the provisions of Section 35.15 shall apply in
\nrespect thereof, and (ii) Tenant, within thirty (30) days after a written demand
\ntherefor, shall reimburse Landlord all of Landlord’s out-of-pocket costs
\nreasonably incurred in connection with such Tenant Building Repair. Tenant, at
\nits own expense, shall have the right to monitor the progress of Tenant Building
\nRepair undertaken by Landlord.<\/p>\n
(B) To the extent that Landlord elects to have
\nTenant perform any Tenant Building Repair, (i) Tenant shall perform the same
\npromptly, at its expense, and in a manner which will not interfere (in other
\nthan a de minimis<\/p>\n
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\nmanner) with the use of the Building by others, (ii) such work shall be
\nperformed only at such time or times as are reasonably designated by Landlord,
\nand, at Landlord’s option, under the supervision of Landlord or its designated
\nrepresentative, (iii) Landlord shall have the right to coordinate such work with
\nany work then being undertaken by Landlord or by any other tenants of the
\nBuilding, and (iv) Tenant, within thirty (30) days after a written demand
\ntherefor, shall reimburse Landlord all supervision and coordination costs
\nincurred by Landlord pursuant to clauses (ii) and (iii) above (whether incurred
\nto Landlord’s employees or outside parties).<\/p>\n
13.02. (a) Except to the extent that Tenant shall be
\nresponsible for the same pursuant to the provisions of Section 13.01(a) or (b)
\nabove, Landlord, at its expense, shall make repairs and replacements to, and
\notherwise keep and maintain (in a condition befitting a first-class downtown
\nManhattan office building), the Base Building, other than those portions of the
\nBase Building which are not Base Building Premises Components and which do not
\naffect, or affect only to a de minimis extent, (i) Tenant’s use and occupancy of
\nthe Premises, (ii) access to the Premises, (iii) the provision of Building
\nServices to the Premises, and (iv) Tenant’s right or ability to perform
\nAlterations which would otherwise be permitted hereunder.<\/p>\n
(b) Landlord, in addition, shall be responsible for all
\nrepairs and replacements, interior and exterior, structural and non-structural,
\nordinary and extraordinary, foreseen and unforeseen, in and to the Premises,
\nTenant’s Improvements and Tenant’s Property, in each case, to the extent, the
\nneed for which arises out of (i) the performance of any work in the Premises by
\nLandlord, or person authorized by Landlord to enter the Premises, or any of
\ntheir respective employees, agents or contractors (provided, however, that
\nLandlord shall not be responsible therefor under this clause (i) to the extent
\nthat the repair or replacement in question would not have been needed but for a
\nviolation by Tenant of its obligations under this lease), (ii) the conduct of
\nalterations, additions, improvements or changes in the Building by Landlord or
\nany of its employees, agents or contractors, (iii) any violation by Landlord of
\nthis lease, or (iv) the negligence or intentional misconduct of Landlord or any
\nof its employees, agents, contractors or invitees (any such repairs and
\nreplacements being herein called “LANDLORD’S ADDITIONAL REPAIRS”). Tenant, at
\nits option, may elect to perform any of Landlord’s Additional Repairs at
\nLandlord’s expense. If Landlord notifies Tenant of the need for any Landlord’s
\nAdditional Repairs, then Tenant shall promptly notify Landlord as to whether
\nTenant elects to perform such Landlord’s Additional Repairs, at Landlord’s
\nexpense, or to have Landlord perform such repair. In all cases, except in cases
\nof emergency (in which cases Tenant need not so notify Tenant), Tenant, prior to
\ncommencing any Landlord’s Additional Repairs, shall notify Landlord that Tenant
\nhas elected to perform the same at Landlord’s expense. To the extent that Tenant
\nelects to perform any Tenant Building Repair at Landlord’s expense, (x) Tenant
\nshall perform the same in accordance with the provisions of Section 13.01(c)(1),
\napplied mutatis mutandis (except that the same shall be performed at Landlord’s
\nexpense and the provisions of Section 13.01(c)(iii) shall not so apply), and (y)
\nLandlord, within thirty (30) days after a written demand therefor, shall
\nreimburse Tenant all of Tenant’s out-of-pocket costs reasonably incurred in
\nconnection with such Landlord’s Additional Repair.<\/p>\n
13.03. All maintenance, repairs and replacements performed by
\nTenant in the Building (including without limitation Tenant Repairs performed by
\nTenant and Landlord’s Additional Repairs performed by Tenant, but specifically
\nexcluding any maintenance, repairs and replacements performed by Tenant to
\nTenant’s Property (as opposed to Tenant’s Improvements)) shall be performed
\nusing only contractors which have been approved or<\/p>\n
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\ndesignated by Landlord in accordance with the provisions of Sections 11.04
\nhereof, applied mutatis mutandis with respect to such maintenance, repairs and
\nreplacements. The provisions of Sections 11.05 and 11.07 hereof, as well as any
\nother provisions of Article 11 relating to the standards and\/or prosecution of
\nwork in the Building, shall likewise apply, mutatis mutandis, to maintenance,
\nrepairs and replacements performed by Tenant pursuant to this Article 13.<\/p>\n
13.04. Tenant shall have the right, as well as the obligation,
\nto perform the maintenance, repairs and replacements for which it is responsible
\nunder Section 13.01(a) above, subject, in all cases, to the other provisions of
\nthis Article 13. In respect thereof, it is agreed that Tenant’s right to repair
\nand replace any Tenant Improvements shall include only (i) the right to repair
\nsuch Tenant Improvements, as needed, without modification or change thereto, and
\n(ii) the right to replace such Tenant Improvements or any portion thereof, as
\nneeded, without modification or change thereto; it being understood that any
\nmodifications or changes to any Tenant Improvements shall be deemed Alterations
\nand may be performed only subject to and in accordance with Article 11 hereof.
\nIn addition, the right of Tenant to replace, as opposed to repair, any Tenant
\nImprovements located outside the Premises shall, notwithstanding anything to the
\ncontrary contained herein, be deemed to allow Tenant to replace such Tenant
\nImprovements or a portion thereof (as opposed to repairing the same) only to the
\nextent that (x) such Tenant Improvements are of such a nature that the same can
\nonly be replaced and not repaired, or (y) the repair of the same is not feasible
\nin light of the damage or defect in question.<\/p>\n
13.05. Except as expressly set forth in this lease, Landlord
\nshall have no liability to Tenant, nor, except as expressly set forth in Section
\n33.01, shall Tenant’s covenants and obligations under this lease be reduced or
\nabated in any manner whatsoever, by reason of any inconvenience, annoyance,
\ninterruption or injury arising from Landlord’s making any repairs or changes
\nwhich Landlord is required or permitted by this lease, or required by law, to
\nmake in or to the Building, including without limitation the Premises. The
\nprovisions of this Section 13.05 shall not absolve Landlord of its obligations
\nto comply with the provisions of Section 35.15 hereof.<\/p>\n
13.06. This Article 13 shall not be applicable, to any extent,
\nto any fire or other casualty referred to in Article 19, or to any repairs or
\nreplacements of any damage or destruction resulting therefrom; the same shall be
\ngoverned by the other applicable provisions of this lease, including Articles 9
\nand 19.<\/p>\n
ARTICLE 14<\/p>\n
Electric Energy<\/p>\n
14.01. (a) Landlord shall furnish electricity, for use by
\nTenant in the Premises and in the operation of Tenant’s Improvements, to the
\nBase Connection Points (as hereinafter defined) at an aggregate level (for all
\nthe Base Connection Points combined) of not less than six and one-half (6.5)
\nwatts demand load per usable square foot of the Premises. As used herein, (i)
\nthe “BASE CONNECTION POINTS” shall mean the points of connection on the
\nBuilding’s electric risers which are located in the Premises Floor Electrical
\nClosets (as hereinafter defined), each of which shall be selected by Tenant and
\napproved by Landlord, (ii) the “PREMISES FLOOR ELECTRICAL CLOSETS” shall mean
\neach of the four (4) electrical closets located on each Premises Floor (it being
\nunderstood that such closets are not included within the Premises), (iii) the
\n“COMMITTED BASE ELECTRICITY LEVEL” shall mean the minimum aggregate level at
\nwhich Landlord shall furnish electricity to the Base Connection Points (i.e.,<\/p>\n
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\nsix and one-half (6.5) watts demand load per usable square foot of the
\nPremises), and (iv) “TENANT’S BASE ELECTRICITY” shall mean the electricity drawn
\nby Tenant from the Base Connection Points. It being agreed that, for purposes of
\nthis Section 14.01(a), the useable area of the Premises shall be conclusively
\ndeemed to be 80% of the deemed rentable area of the Premises determined pursuant
\nto the provisions of Section 3.06 hereof and Exhibit D annexed hereto.<\/p>\n
(b) Tenant, subject to and in accordance with the
\napplicable provisions of this lease (including without limitation Article 11
\nhereof), shall (i) make such connections at the Base Connection Points as will
\nallow Tenant to draw electricity therefrom, and (ii) distribute Tenant’s Base
\nElectricity from the Base Connection Points (x) to the various points throughout
\nthe Premises where Tenant’s Base Electricity is consumed, and\/or (y) to Tenant
\nImprovements located outside the Premises which consume electricity. Tenant
\nshall not draw electricity from the Building’s electrical risers other than from
\nthe Base Connection Points. Nothing in this Section 14.01(b) or in Section
\n14.02(b) hereof shall be deemed to permit Tenant to utilize any electrical
\nconduits outside of the Premises; it being understood that Tenant shall have the
\nright to utilize certain electrical conduits outside the Premises pursuant to
\nthe provisions of Section 14.02(c) hereof or Article 41 hereof (and that
\nLandlord may hereafter grant Tenant other rights to utilize certain electrical
\nconduits outside the Premises).<\/p>\n
(c) In connection with the distribution of electricity
\nfrom the Base Connection Points, or any conversion of voltage incident thereto,
\nTenant shall have the right to utilize or dispose of any transformers or panels
\nlocated, as of the date hereof, in the Premises Floor Electrical Closets, but
\nLandlord makes no representation or warranty concerning the condition of such
\ntransformers or panels or the adequacy thereof for Tenant’s connection,
\ndistribution or conversion needs. After the completion of the Secondary Work and
\nthereafter throughout the term of this lease, (i) Tenant shall have access to
\nthe Premises Floor Electrical Closets, and (ii) the same shall not service any
\nother tenant of the Building; except, that Landlord and persons authorized by
\nLandlord may run electrical conduits and risers through such closets.<\/p>\n
(d) Tenant covenants that, at no time during the term
\nof this lease, shall Tenant ever draw electricity from the Base Connection
\nPoints at a level in excess of the Committed Base Electricity Level. Tenant
\nfurther covenants that its use of electricity shall never exceed the capacity of
\nthe electrical risers, distribution conductors and other equipment installed by
\nTenant to distribute Tenant’s Base Electricity as hereinabove provided.<\/p>\n
14.02. (a) Landlord shall furnish electricity, for use by
\nTenant in the Premises and in the operation of Tenant’s Improvements, to the
\nDesignated 20th Floor Electrical Panels (as hereinafter defined) at an aggregate
\nlevel of not less than 2,500 KVA. As used herein, (i) the “DESIGNATED 20TH FLOOR
\nELECTRICAL PANELS” shall mean those certain electrical panels heretofore
\ndesignated by Landlord and being contained in the switchgear room on the 20th
\nfloor of the Building which is shown hatched on Exhibit R attached hereto, (ii)
\nthe “COMMITTED SUPPLEMENTAL ELECTRICITY LEVEL” shall mean the minimum aggregate
\nlevel at which Landlord shall furnish electricity to the Designated 20th Floor
\nElectrical Panels (i.e., 2,500 KVA), and (iii) “TENANT’S SUPPLEMENTAL
\nELECTRICITY” shall mean the electricity drawn by Tenant from the Designated 20th
\nFloor Electrical Panels. Tenant, subject to and in accordance with the
\nprovisions of Articles 11 hereof and in connection with the Initial Alterations,
\nshall, at its expense, perform the work needed to (x) install a meter pan in
\nrespect of the Designated 20th Floor Electrical Panels (herein<\/p>\n
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\ncalled the “20TH FLOOR METER PAN”), and (y) run up to twenty (20) 4-inch
\nelectrical conduits (I) from the Designated 20th Floor Electrical Panels to
\nTenant’s Electrical Distribution Room (as hereinafter defined), and (II) from
\nTenant’s Electrical Distribution Room to Tenant’s UPS Room (as hereinafter
\ndefined), all of which electrical conduits to be run in locations on the 20th
\nfloor of the Building reasonably designated by Landlord (such work being herein
\ncalled the “20TH FLOOR ELECTRICAL WORK”). For purposes of applying Article 11
\nhereof to the 20th Floor Electrical Work, the same shall be deemed Exterior
\nMaterial Alterations and Pre-Authorized Alterations.<\/p>\n
(b) Tenant, subject to and in accordance with the
\napplicable provisions of this lease (including without limitation Article 11
\nhereof), shall (i) make such connections at the Designated 20th Floor Electrical
\nPanels as will allow Tenant to draw electricity therefrom, and (ii) distribute
\nTenant’s Supplemental Electricity from the Designated 20th Floor Electrical
\nPanels (x) to any points within the Premises where Tenant’s Supplemental
\nElectricity is consumed, and\/or (y) to any Tenant’s Improvements located outside
\nthe Premises which consume electricity.<\/p>\n
(c) In connection with the distribution of Tenant’s
\nSupplemental Electricity from the Designated 20th Floor Electrical Panels as
\naforesaid, Tenant, subject to and in accordance with the provisions of Article
\n11 hereof, shall have the right, from time to time, to install one or more
\nelectrical conduits connecting Tenant’s Electrical Distribution Room and
\nTenant’s UPS Room to the Premises Floors and the roof of the Building, which
\nelectrical conduits shall run vertically through Tenant’s Stairwell B Enclosure
\n(as hereinafter defined) and\/or Tenant’s Stairwell E Enclosure (as hereinafter
\ndefined), and, to the extent any of such electrical conduits need to run
\nhorizontally, the same shall be run in locations reasonably designated by
\nLandlord; provided, however, that Tenant’s right to install any such electrical
\nconduit shall be conditioned upon (i) Tenant having theretofore installed, or
\nTenant contemporaneously therewith installing, either or both of Tenant’s
\nStairwell B Enclosure and Tenant’s Stairwell E Enclosure pursuant to Section
\n16.14 hereof, and (ii) there being sufficient space within Tenant’s Stairwell B
\nEnclosure and\/or Tenant’s Stairwell E Enclosure to install such electrical
\nconduit. Such electrical conduits are herein collectively called the “TENANT’S
\nSUPPLEMENTAL ELECTRICITY CONDUITS”, and the work required to install the same
\nbeing herein called the “TENANT’S SUPPLEMENTAL ELECTRICITY CONDUIT WORK”. For
\npurposes of applying Article 11 hereof to Tenant’s Supplemental Electricity
\nWork, the same shall be deemed Exterior Material Alterations and, subject to the
\nforegoing provisions of this Section 14.02(c), Pre-Authorized Alterations.<\/p>\n
(d) Tenant covenants that, at no time during the term
\nof this lease, shall Tenant ever draw electricity from the Designated 20th Floor
\nElectrical Panels at a level in excess of the Committed Supplemental Electricity
\nLevel. Tenant further covenants that its use of electricity shall never exceed
\nthe capacity of the electrical risers, distribution conductors and other
\nequipment installed by Tenant to distribute Tenant’s Supplemental Electricity as
\nhereinabove provided.<\/p>\n
14.03. (a) Tenant shall pay Landlord, or a meter company
\ndesignated by Landlord, for Tenant’s Base Electricity and Tenant’s Supplemental
\nElectricity (collectively, “TENANT’S ELECTRICITY”) on a submetered basis in
\naccordance with the following provisions of Section 14.03(b) (unless the
\nprovisions of Section 14.04 through Section 14.07 hereof shall apply) and, in
\nall events, at the rates and charges set forth in this Section 14.03(c).<\/p>\n
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\n (b) Tenant’s Electricity shall be measured by one or
\nmore submeters, measuring both demand and consumption, and one or more of such
\nsubmeters, or a separate meter or device, shall measure demand as to all such
\nsubmeters on a “co-incident” basis (such submeters, together with all related
\nequipment, are herein collectively called “TENANT’S SUBMETERS”). As used herein,
\nthe term “demand” shall mean demand as defined by the public utility company
\nfurnishing electricity to the Building from time to time (herein called the
\n“UTILITY COMPANY”) and as measured over such time period or interval as the
\nUtility Company shall measure the same. Tenant’s Submeter(s) initially measuring
\nTenant’s Base Electricity shall be installed by Landlord, at its expense, on or
\nprior to the date that is six (6) weeks after the date that Tenant shall have
\ninstalled its electrical panels in each of the Premises Floor Electrical
\nClosets. Tenant’s Submeter(s) measuring Tenant’s Supplemental Electricity shall
\nbe installed by Landlord, and Landlord shall endeavor to install such Tenant’s
\nSubmeter(s) on or prior to the date (herein called the “SUPPLEMENTAL METER
\nOUTSIDE DATE”) that is six (6) weeks after the date that Tenant shall have
\ninstalled the 20th Floor Meter Pan and shall have notified Landlord thereof.<\/p>\n
(c) The amount to be charged to Tenant by Landlord, for
\nany billing period, for Tenant’s Electricity (whether the demand and consumption
\ncomponents thereof are measured by Tenant’s Submeters or determined by survey as
\nherein elsewhere provided), shall be 102% of the amount indicated by applying
\nboth the number of KWs of demand for such period (measured on a co-incident
\ndemand basis) and the KWHRs of consumption for such period, to Landlord’s Rate
\nSchedule for such period. Tenant shall also pay, and Landlord shall remit to the
\nappropriate governmental agency, all sales tax payable on the amounts set forth
\nin the preceding sentence. As used herein, “LANDLORD RATE SCHEDULE”, for any
\nperiod, shall be rate schedule, for both KWs and KWHRs, at which Landlord
\npurchases electricity for the Building from the Utility Company during such
\nperiod, excluding, however, any sales tax which may be included in such
\nschedule. Bills for Tenant’s Electricity, which Tenant hereby agrees to pay,
\nshall be rendered by Landlord, or the meter company, to Tenant at such time and
\nfor such billing periods as Landlord may elect, and shall be payable as an
\nAdditional Charge within thirty (30) days after the rendition of any such bill.
\nEach electric bill rendered by Landlord to Tenant for Tenant’s Base Electricity
\nshall be accompanied by a copy of the electricity bill(s) for the Building
\nidentifying Landlord’s Rate Schedule for the applicable billing period.<\/p>\n
(d) (1) Prior to the date that the Tenant’s Submeter(s)
\nmeasuring Tenant’s Base Electricity are installed on any Premises Floor, (I)
\nTenant, during the period commencing on the date hereof and ending on the day
\nprior to the date that Tenant first occupies such Premises Floor for the
\nordinary conduct of its business, shall pay to Landlord, in respect of Tenant’s
\nBase Electricity for such Premises Floor, an amount equal to $1.00 per rentable
\nsquare foot per annum, and (II) Tenant, during the period, if any, commencing on
\nthe date that Tenant first occupies such Premises Floor for the ordinary conduct
\nof its business and ending on the date that the Tenant’s Submeters measuring
\nTenant’s Base Electricity are installed and made operational on such Premises
\nFloor, shall pay to Landlord, in respect of Tenant’s Base Electricity for such
\nPremises Floor, an amount equal to $2.50 per rentable square foot per annum,
\nwhich amount shall be deemed a payment on account for such period and shall be
\nretroactively adjusted, after the installation of the Tenant’s Submeter(s)
\nmeasuring Tenant’s Base Electricity for such Premises Floor, based upon the
\nfirst 12-months of readings of such Tenant’s Submeter(s) substantially in
\naccordance with the provisions of Section 14.05 hereof.<\/p>\n
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\n (2) Tenant shall not draw any electricity from
\nthe Designated 20th Floor Electrical Panels, prior to the first to occur of (i)
\nthe date that the Tenant’s Submeter(s) measuring Tenant’s Supplemental
\nElectricity are installed, and (ii) the day after the Supplemental Meter Outside
\nDate. Consistent with the foregoing, if Tenant’s Submeter(s) measuring Tenant’s
\nSupplemental Electricity are not installed on or prior to the Supplemental Meter
\nOutside Date, then, for the period commencing on the day after the Supplemental
\nMeter Outside Date and ending with the installation of such Tenant Submeter(s),
\nTenant shall not be charged for drawing Tenant’s Supplemental Electricity from
\nthe Designated 20th Floor Electrical Panels.<\/p>\n
(e) Landlord’s obligations under this Article 14 shall
\nnot be affected, diminished or excused by reason of Landlord’s use or employment
\nof a meter company. Any such meter company shall for purposes of this lease be
\ndeemed Landlord’s agent.<\/p>\n
14.04. In the event that the “submetering” of electricity in
\nthe Building is hereafter prohibited by any law hereafter enacted, or by any
\norder or ruling hereafter issued by the Public Service Commission of the State
\nof New York, or by any final judicial decision hereafter issued by any
\nappropriate court, then, at the request of Landlord, Tenant shall, unless Tenant
\nelects to require Landlord to provide Tenant’s Electricity pursuant to Section
\n14.05 hereof, promptly apply to the appropriate Utility Company for direct
\nelectric service and bear all costs and expenses necessary to comply with all
\nrules and regulations of the Utility Company pertinent thereto, and, upon the
\ncommencement of such direct service, Landlord shall be relieved of any further
\nobligation to furnish Tenant’s Electricity to Tenant pursuant to this Article
\n14, except that Landlord shall permit its wires, conduits and electrical
\nequipment, to the extent available and safely capable, to be used for such
\npurpose. If any additional feeder, riser or other equipment is necessary to
\nsupply such direct service, Landlord shall, at the sole cost and expense of
\nTenant, install the same at reasonably competitive rates, if in Landlord’s
\nreasonable judgment the same are so necessary and will not cause damage or
\ninjury to the Building or the Premises or cause or create a dangerous or
\nhazardous condition (other than one which is temporary) or unreasonably
\ninterfere with or disturb other tenants or occupants (other than on a temporary
\nbasis).<\/p>\n
14.05. (a) If submetering of electricity is prohibited as
\ndescribed in Section 14.04 above and Tenant does not elect to obtain direct
\nelectric service from the Utility Company, then the demand (KW) and consumption
\n(KWHR) components of Tenant’s Electricity shall be determined from time to time
\nby electric survey made from time to time in accordance with the provisions of
\nthis Section 14.05, Section 14.06 and Section 14.07. Pending an initial survey
\nmade by Landlord’s utility consultant, effective as of the date (the “INITIAL
\nSURVEY EFFECTIVE DATE”) when Landlord has commenced charging Tenant for Tenant’s
\nElectricity pursuant to this Section 14.05 (with suitable proration for any
\nperiod of less than a full calendar month), the Fixed Rent specified in Section
\n1.04 shall be increased by an amount (the “INITIAL CHARGE”) which shall be at
\nthe rate of $2.50 per rentable square foot per annum, or if there has been
\ntwelve (12) months’ charges of submetered electric, an amount per month equal to
\nthe average of the prior twelve (12) months’ charges for submetered electric.
\nAfter completion of an electrical survey made by Landlord’s utility consultant
\nof Tenant’s demand (KW) and consumption (KWHR) of electricity, said consultant
\nshall apply the rates set forth in Section 14.03 hereof to arrive at an amount
\n(the “ACTUAL CHARGE”), and the Fixed Rent shall be appropriately adjusted
\nretroactively to the Initial Survey Effective Date to reflect any amount by
\nwhich the Actual Charge differs from the Initial Charge. If the Actual<\/p>\n
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\nCharge is greater than the Initial Charge, Tenant shall pay resulting deficiency
\nwithin ten (10) days after being billed therefor. If the Actual Charge is less
\nthan the Initial Charge, Landlord shall refund the resulting overpayment within
\nten (10) days after the determination of the Actual Charge. Landlord shall cause
\nits utility consultant to complete the aforesaid survey and computation, and to
\nnotify the parties thereof, no later than sixty (60) days after the Initial
\nSurvey Effective Date. Thereafter and from time to time during the term of this
\nlease, Landlord may, and whenever Tenant shall so request, Landlord shall
\npromptly, cause additional surveys of Tenant’s electric demand and consumption
\nto be made by Landlord’s utility consultant. Whenever Tenant shall so request,
\nthe fees of Landlord’s utility consultant shall be paid by Tenant. In the event
\nany of the foregoing surveys shall determine that there has been an increase or
\ndecrease in Tenant’s demand or consumption, then effective retroactively to the
\ndate of such increase or decrease (except as otherwise provided below) the then
\ncurrent Actual Charge, as same may have been previously increased or decreased
\npursuant to the terms hereof, shall be increased or decreased in accordance with
\nsuch survey determination. If the Actual Charge is thus increased, Tenant shall
\npay resulting deficiency within ten (10) days after being billed therefor. If
\nthe Actual Charge is thus decreased, Landlord shall refund the resulting
\noverpayment within ten (10) days after such determination. Notwithstanding the
\nforegoing provisions of this Section 14.06, (i) no increase resulting from any
\nsurvey made after the initial survey shall be retroactive to any date more than
\n30 days prior to the date of such survey, (ii) no decrease resulting from any
\nsurvey made after the initial survey at Tenant’s request shall be retroactive to
\nany date more than 30 days prior to the date of Tenant’s request, and (iii) no
\ndecrease resulting from any survey made after the initial survey without
\nTenant’s request shall be retroactive to any date more than 30 days prior to the
\ndate of such survey. Each survey after the initial survey shall include a
\nstatement of the date, determined in accordance with this Section 14.05(a), to
\nwhich it is to be given retroactive effect.<\/p>\n
(b) In the event from time to time after the initial
\nsurvey or a subsequent survey any additional electrically operated equipment is
\ninstalled in the Premises by Tenant or connected or any electrically operated
\nequipment is removed from the Premises or disconnected, or if Tenant shall
\nincrease or decrease its hours of operation, or if the charges by the Utility
\nCompany are increased or decreased, then and in any of such events the Actual
\nCharge shall be increased or decreased accordingly. The amount of such increase
\nor decrease in the Actual Charge shall be determined in the first instance by
\nLandlord’s utility consultant. At any time after any such event shall occur,
\nLandlord may, and if Tenant shall so request, Landlord shall promptly, cause the
\namount of such increase or decrease to be so determined. Whenever Tenant shall
\nso request, the fees of Landlord’s utility consultant shall be paid by Tenant.
\nIn addition, the Actual Charge will be increased or decreased quarterly in
\naccordance with calculations by Landlord’s utility consultant to reflect changes
\nin the fuel adjustment component of the Utility Company’s charge. Any increase
\nor decrease pursuant to this Section 14.05(b) in the amount charged Tenant for
\nelectricity shall be retroactive to the date on which the fact or condition
\ngiving rise thereto occurred; provided, however, that (i) no increase shall be
\nretroactive to any date more than 30 days prior to the date on which Tenant is
\nnotified thereof, (ii) no decrease resulting from any determination made at
\nTenant’s request shall be retroactive to any date more than thirty (30) days
\nprior to the date of Tenant’s request, and (iii) no decrease resulting from any
\ndetermination made without Tenant’s request shall be retroactive to any date
\nprior to the date on which Tenant is notified thereof. Each determination shall
\ninclude a statement of the date, determined in accordance<\/p>\n
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\nwith this Section 14.05(b), to which it is to be given retroactive effect.<\/p>\n
14.06. Surveys made of Tenant’s electrical demand and
\nconsumption shall be based upon the use of electricity between the hours of 8:00
\na.m. to 6:00 p.m., Mondays through Fridays, and such other days and hours as
\nTenant (together with all Tenant Parties) uses electricity for lighting and for
\nthe conduct of its business in the Premises (if Tenant uses electricity during
\ncertain hours in portions of the Premises but not all of the Premises, such fact
\nshall be taken into account); and if cleaning services are provided by Landlord,
\nsuch survey shall include (i) during Landlord’s normal cleaning hours of five
\n(5) hours per day (which shall not be subject to reduction), lighting within the
\nPremises, and (ii) during such portion of such five (5) hours as such equipment
\nis ordinarily so used, the use of the electrical equipment normally used for
\nsuch cleaning. The electric demand and consumption of any light or device shall
\nnot be deemed to be constant or continuous (unless so by its nature) and the
\nutility consultant shall reasonably estimate the actual demand and consumption
\nof each light or device, and, for purposes of determining Tenant’s total demand,
\nthe utility consultant shall also reasonably estimate the diversity factor to be
\napplied to the demand of each such light or device.<\/p>\n
14.07. All survey determinations made in accordance with
\nSection 14.05(a) and all other determinations made in accordance with Section
\n14.05(b), in each case including the date, determined in accordance with Section
\n14.05, to which the same shall be given retroactive effect, shall be accompanied
\nby full documentation and shall be subject to contest by Tenant as provided in
\nthis Section 14.07. In the event electricity shall be furnished to Tenant as
\ncontemplated in Section 14.05 hereof, then Tenant, within sixty (60) days after
\nnotification from Landlord of any determination of Landlord’s utility consultant
\nin accordance with the provisions of Section 14.05(a) or (b), shall have the
\nright to contest, at Tenant’s cost and expense, such determination, in each case
\nincluding the aforesaid date, by submitting to Landlord a like determination
\nprepared by a utility consultant of Tenant’s selection which will highlight the
\ndifferences between Landlord’s determination and Tenant’s determination. If
\nLandlord’s utility consultant and Tenant’s utility consultant shall be unable to
\nreach agreement within thirty (30) days, then such two consultants shall
\ndesignate a third utility consultant to make the determination, and the
\ndetermination of such third consultant shall be binding and conclusive on both
\nLandlord and Tenant. If the determination of such third consultant shall
\nsubstantially confirm the finding of Landlord’s utility consultant (i.e., within
\nten percent (10%)), then Tenant shall pay the cost of such third consultant. If
\nsuch third consultant shall substantially confirm the determination of Tenant’s
\nconsultant (i.e., within ten percent (10%)), then Landlord shall pay the cost of
\nsuch third consultant. If such third consultant shall make a determination
\nsubstantially different from that of both Landlord’s and Tenant’s utility
\nconsultants (or is within ten percent (10%) of both such determinations), then
\nthe cost of such third consultant shall be borne equally by Landlord and Tenant.
\nIn the event that Landlord’s utility consultant and Tenant’s utility consultant
\nshall be unable to agree upon the designation of a third utility consultant
\nwithin thirty (30) days after Tenant’s utility consultant shall have made its
\ndetermination (different from that of Landlord’s utility consultant) then either
\nparty shall have the right to request the American Arbitration Association in
\nthe City of New York to designate a third utility consultant whose decision
\nshall be conclusive and binding upon the parties, and the costs of such third
\nconsultant shall be borne as hereinbefore provided in the case of a third
\nconsultant designated by Landlord’s and Tenant’s utility consultants. Pending
\nthe resolution of any contest pursuant to the terms hereof, Tenant<\/p>\n
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\nshall pay the Actual Charge determined by Landlord’s utility consultant, and
\nupon the resolution of such contest, appropriate adjustment in accordance with
\nsuch resolution of such Actual Charge shall be made retroactive to (i) the date
\nto which the contested determination was given retroactive effect or (ii) if
\nTenant shall have contested such date, to the date determined in such contest.<\/p>\n
14.08. (a) If Tenant requires additional electrical capacity,
\nabove the Committed Base Electricity Level and the Committed Supplemental
\nElectricity Level, then Tenant may deliver to Landlord a notice which shall set
\nforth the level of additional electrical capacity required and shall request
\nthat Landlord endeavor to obtain such additional electrical capacity from the
\nUtility Company (each such notice being herein called a “ADDITIONAL ELECTRICITY
\nNOTICE”). If, after Landlord receives an Additional Electricity Notice, Tenant
\nshall demonstrate its need for the additional electrical capacity requested in
\nsuch Additional Electricity Notice to Landlord’s reasonable satisfaction, then
\nLandlord, at Tenant’s expense and in coordination with Tenant, shall make
\nreasonable efforts to cause the Utility Company to deliver to the Building the
\nadditional electrical capacity set forth in the Additional Electricity Notice;
\nprovided, however, that Landlord’s foregoing obligation to use reasonable
\nefforts shall not require Landlord to (i) initiate or otherwise participate in
\nany litigation or administrative proceeding, (ii) make any alterations,
\nadditions or improvements to the Real Property (other than, if applicable, the
\ninstallation of the Additional Electrical Equipment (as hereinafter defined)
\npursuant to the provisions of Section 14.08(b) hereof at Tenant’s expense),
\n(iii) expend any money (unless Tenant pays such amounts to Landlord prior to the
\ndate the same are due from Landlord), or (iv) take any action which would or
\nmight adversely affect on (x) Landlord’s ability to obtain electricity from the
\nUtility Company for the remainder of the Real Property or (y) Landlord’s ability
\nto distribute electricity to any portion of the Real Property. Tenant shall
\nreimburse Landlord all Landlord’s out-of-pocket expenses incurred in connection
\nwith, and indemnify and hold harmless Landlord against any and all claims and
\nliabilities arising out of, Landlord’s obtaining of, or Landlord’s attempts to
\nobtain, the additional electrical capacity requested in the Additional
\nElectricity Notice (including without limitation those incurred in connection
\nwith or arising out of Landlord’s execution of any applications and similar
\ndocuments).<\/p>\n
(b) If, in response to a request of Tenant or Landlord,
\nthe Utility Company shall agree to furnish the additional electrical capacity
\nset forth in any Additional Electricity Notice, then Landlord, at Tenant’s
\nexpense, shall (i) permit the Utility Company to install in the Building’s
\nelectric vault the equipment and connections necessary to provide such
\nadditional electrical capacity to the Building (such equipment and connections
\nbeing herein called the “ADDITIONAL BUILDING ELECTRICAL EQUIPMENT”), and (ii)
\neither install, or, at Landlord’s option, permit Tenant to install, the risers,
\nswitches, transformers, panels and related equipment necessary to make such
\nadditional electrical capacity available to the Premises and the meters or
\nsubmeters needed to measure the electricity drawn therefrom (all such risers,
\nswitches, transformers, panels and related equipment, together with such meters
\nor submeters, being herein called the “ADDITIONAL TENANT ELECTRICAL EQUIPMENT”).
\nTenant shall (x) pay, or reimburse Landlord, all charges of the Utility Company
\nwith respect to its installation of the Additional Building Electrical Equipment
\nor otherwise charged in connection with the furnishing of additional electrical
\ncapacity to the Building pursuant to the provisions of this Section 14.08(b),
\nand (y) reimburse Landlord all reasonable out-of-pocket cost incurred by
\nLandlord in connection with the installation of the Additional Tenant Electrical
\nEquipment. Upon<\/p>\n
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\nsuch installation of the Additional Tenant Electrical Equipment, the same shall
\nconstitute Tenant’s Improvements.<\/p>\n
(c) Notwithstanding anything to contrary contained in
\nthe foregoing provisions of this Section 14.08 or in any other provision of this
\nlease, Tenant hereby agrees that (I) except for Tenant’s rights to draw
\nelectricity expressly set forth in Sections 14.01 and 14.02 hereof, Landlord
\nshall never have any obligation to furnish to Tenant and Tenant shall never have
\nany right or claim whatsoever to any electrical capacity currently existing in
\nthe Building (regardless of whether any such capacity is now being used or is
\never used and regardless of whether any such capacity may hereafter become
\navailable for use), and (II) except for any additional electrical capacity
\nfurnished to the Building by the Utility Company pursuant to this Section 14.08
\nas hereinabove provided, Tenant shall have no rights or claims whatsoever to any
\nadditional electrical capacity hereafter furnished to the Building by the
\nUtility Company. Without limiting the generality of the foregoing, it is
\nunderstood and agreed that if the Utility Company denies a request made by
\nLandlord or Tenant to furnish to the Building the additional electrical capacity
\nset forth in an Additional Electricity Notice and gives as its reason therefor
\nthat there is unused or available electrical capacity in the Building, then,
\nnotwithstanding that there is such unused or available capacity, Landlord shall
\nhave no obligation to furnish any portion of such capacity to Tenant and Tenant
\nshall have no rights thereto.<\/p>\n
14.09. Landlord shall not be liable in any event to Tenant for
\nany failure, interruption or defect in the supply or character of electric
\nenergy furnished to the Premises by reason of any act or omission of the public
\nutility serving the Building with electricity or for any other reason not
\nattributable to Landlord’s willful misconduct or negligence (but in no event
\nshall Landlord be responsible for any consequential damages).<\/p>\n
14.10. If pursuant to any law, ruling, order or regulation,
\nthe charges under which Tenant is purchasing electricity from Landlord pursuant
\nto this Article 14 shall be reduced below that which Landlord is otherwise
\nentitled hereunder, then, unless prohibited by laws and requirements of public
\nauthorities, Tenant shall pay said deficiency to Landlord as an Additional
\nCharge within thirty (30) days after being billed therefor by Landlord, as
\ncompensation for the use and maintenance of the Building’s electric distribution
\nsystem.<\/p>\n
14.11. Tenant, at its sole cost and expense, using its own
\nemployees, or a vendor or contractor selected by Tenant, shall furnish and
\ninstall all replacement lighting, tubes, lamps, bulbs and ballasts required in
\nthe Premises.<\/p>\n
14.12. If any rebates shall be available from the Utility
\nCompany, as part of any utility sponsored energy conservation rebate program, on
\naccount of the energy efficient nature of Tenant’s lighting fixtures and\/or
\nequipment, then Landlord, at Tenant’s sole expense, (i) shall, if Tenant shall
\nrequest, make and prosecute applications for any such rebates, and take other
\nreasonably requested actions in furtherance thereof, and (ii) shall, to the
\nextent any such rebates are actually received by Landlord, promptly remit the
\nsame to Tenant.<\/p>\n
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\n ARTICLE 15<\/p>\n
Landlord’s Services<\/p>\n
15.01. For the purposes of this Article 15, the fol-
\nlowing terms shall have the following meanings:<\/p>\n
(a) “BUSINESS OCCUPANCY DATE”, with respect to any
\nPremises Floor, shall mean the date on which Tenant takes occupancy of the
\nportion of the Premises located on such Premises Floor for the conduct of its
\nusual business. Tenant shall give Landlord notice of the Business Occupancy Date
\nwith respect to each Premises Floor at least five (5) Business Days prior to the
\noccurrence thereof.<\/p>\n
(b) “BUSINESS HOURS” shall mean the hours between
\n8:00 a.m. and 6:00 p.m. on Business Days.<\/p>\n
(c) “BUSINESS DAYS” shall mean all days, except
\nSaturdays, Sundays and Holidays. Notwithstanding the foregoing, for purposes of
\nSection 15.03 hereof and Section 15.05 hereof (but not for any other purposes
\nhereunder), the term “Business Days” shall include Partial Service Holidays.<\/p>\n
(d) “HOLIDAYS” shall mean New Year’s Day, Washington’s
\nBirthday, Memorial Day, Independence Day, Labor Day, Thanksgiving, the day
\nfollowing Thanksgiving, Christmas and any other days which shall be either (i)
\nobserved by the federal or the state governments as legal holidays, or (ii)
\ndesignated as a holiday by the applicable Building Service Union Employee
\nService contract or by the applicable Operating Engineers contract. At anytime
\nafter the beginning of a calendar year, Landlord, promptly after its receipt of
\na written request therefor from Tenant, shall furnish Tenant with a notice
\ndesignating the Holidays for that calendar year.<\/p>\n
(e) “PARTIAL SERVICE HOLIDAYS” shall mean any Holiday
\nwhich occurs on a weekday and on which the New York Stock Exchange is open for
\ntrading.<\/p>\n
15.02. (a) Landlord shall furnish cold water to the sprinklers
\non each Premises Floor to the extent required for sprinkler purposes only.
\nLandlord’s sprinkler system (up to and including the main sprinkler loop on each
\nPremises Floor) shall be hydraulically designed for office space with .015 gpm
\nper square foot to the 2,000 most remote square feet, a water reserve of 30
\nminutes and a maximum head coverage area of 196 square feet.<\/p>\n
(b) Landlord shall furnish hot and cold water to the
\nCore Lavatories on each Premises Floor to the extent required for normal core
\nlavatory, drinking and cleaning purposes only. In addition, Landlord, without
\ncharge to Tenant, shall furnish additional hot and\/or cold water for use by
\nTenant for the following purposes: (i) satellite lavatories (containing no more
\nthan one sink and one toilet each), up to a maximum of two (2) per Premises
\nFloor, and (ii) pantries (containing no more than one dishwasher and one sink
\neach), up to a maximum of two (2) per Premises Floor. Such additional hot and\/or
\ncold water shall be furnished through the Building’s plumbing system to, and
\nshall be accessible by Tenant at, one or more of the valved outlets therefor
\nwhich currently exist in the core of the Building on each Premises Floor.<\/p>\n
(c) If, consistent with Section 2.01 hereof, Tenant
\nshall require water for any purposes other than those set forth in Section
\n15.02(a) and (b) above (which other purposes shall include without limitation
\n(i) water for any additional pantries, or for any kitchenettes, kitchens or a
\ncafeteria or other dining facility, inclusive of any sinks, dishwashers,<\/p>\n
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\ncoffee machines, etc. therein, (ii) water for any additional satellite or
\nprivate lavatories installed by Tenant, (iii) water for any gymnasium or showers
\ninstalled by Tenant, and\/or (iv) water for Tenant’s Cooling Plant), then
\nLandlord need only furnish additional cold water for such other purposes, as so
\nrequired, which additional cold water shall be furnished through the Building’s
\nplumbing system to, and shall be accessible by Tenant at, one or more of the
\nvalved outlets therefor which currently exist in the core of the Building on
\neach Premises Floor and, after the completion of the Secondary Work, a single
\nvalved outlet on the roof of the Building. Such furnished water shall have a
\npressure at the outlet of not less than 13 psig and not more than 80 psig. If
\nTenant uses water for any purposes other than as set forth in Section 15.02(a)
\nand (b) above, then Landlord may install and maintain, at Tenant’s expense, one
\nor more meters to measure Tenant’s consumption of such water for such other
\npurposes. Tenant shall reimburse Landlord for the quantities of water shown on
\nsuch meter or meters, periodically, within thirty (30) days after written demand
\ntherefor, in accordance with the rates and charges of the utility company or
\nmunicipality supplying such water to the Building. Tenant, at its expense, shall
\nbe solely responsible for distributing to and within the Premises, and, to the
\nextent Tenant requires hot water, heating any additional cold water furnished
\npursuant to this Section 15.02(c). Landlord shall also make available to Tenant
\nat a plugged point of connection on each Premises Floor (i) a 4″ waste line and
\n(ii) a 2″ vent line.<\/p>\n
15.03. (a) Landlord, during Business Hours, shall furnish, in
\naccordance with the specifications set forth on Exhibit K annexed hereto, (i)
\nheat and ventilation service at the perimeter of each Premises Floor through the
\nexisting perimeter equipment (such heat and ventilation service being herein
\ncalled “BASE BUILDING HEAT SERVICE”), and (ii) air-conditioning and ventilation
\nservice both (x) at the perimeter of each Premises Floor (through the existing
\nperimeter equipment), other than the 50th floor of the Building, and (y) at
\ndelivery points (designated by Landlord) in the Building’s core located on each
\nPremises Floor, other than the 50th floor of the Building (such air-conditioning
\nand ventilation service being herein called “BASE BUILDING AIR-CONDITIONING
\nSERVICE”). Tenant, at its expense, shall have right to measure the provision of
\nheat, air-conditioning and ventilation service to the Premises as aforesaid to
\nconfirm that the same is in conformity with the specifications set forth on
\nExhibit K, and to temporarily or permanently install equipment for that purpose,
\nprovided, that no such equipment shall have any adverse affect on the operation,
\nperformance or maintenance of the Building’s HVAC system(s) or any related
\nequipment. Landlord shall provide either Base Building Heat Service or Base
\nBuilding Air-Conditioning Service according to outside conditions and not
\naccording to the season or time of year.<\/p>\n
(b) If Tenant shall request that Landlord furnish Base
\nBuilding Heat Service (“OVERTIME HEAT”) or Base Building Air-Conditioning
\nService (“OVERTIME AC”) to any Premises Floor(s) at any time other than Business
\nHours, then Landlord shall furnish such service at such times (x) upon no less
\nthan five (5) hours’ advance notice from Tenant for overtime service after six
\n(6) p.m. on Business Days, and (y) upon notice received before Noon on the
\npreceding Business Day for overtime service on non-Business Days. Each such
\nnotice shall specify the Premises Floor or Floors to which service is to be
\nprovided. Tenant, within thirty (30) days after its receipt of a demand
\ntherefor, shall pay to Landlord (x) the Overtime AC Rate for any Overtime AC,
\nand (y) the Overtime Heat Rate for any Overtime Heat. As of the date hereof, the
\n“OVERTIME AC RATE” shall be $40 per hour, per floor, and the “OVERTIME HEAT
\nRATE” shall be $40 per hour, per floor. Each of the Overtime AC Rate and the
\nOvertime Heat Rate shall be Adjusted by CPI (as defined in Article 31 hereof).<\/p>\n
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\n (c) Notwithstanding anything to the contrary contained
\nin the foregoing provisions of this Section 15.03, Landlord shall have no
\nobligation to furnish either Base Building Heat Service or Base Building
\nAir-Conditioning Service to the 50th floor of the Building or any part thereof.
\nTenant, for so long as the Premises shall include any space on the 50th floor of
\nthe Building, shall be solely responsible for furnishing heat and
\nair-conditioning to the leasable areas of the 50th floor of the Building
\n(including without limitation the Premises). For such purposes, Tenant shall be
\nentitled to utilize both (i) the existing separate heating system currently
\nlocated on the 50th floor of the Building, and (ii) the existing
\nair-conditioning unit currently located on the 50th floor of the Building, and,
\nsubject to and in accordance with the provisions of Article 11 hereof, shall
\nhave the right to modify and supplement such separate heating system and
\nair-conditioning unit (such separate heating system, as so modified and
\nsupplemented, being herein called the “50TH FLOOR HEATING UNIT”; such
\nair-conditioning unit, as so modified and supplemented, being herein called the
\n“50TH FLOOR AC UNIT”; and such 50th Floor Heating Unit and such 50th Floor AC
\nUnit being herein collectively called the “50TH FLOOR HVAC UNITS”). Landlord,
\nwithout charge to Tenant, shall furnish the steam needed to operate the 50th
\nFloor Heating Unit; it being understood that Landlord shall have no other
\nobligation to furnish any service to the 50th Floor Heating Unit. Tenant,
\nsubject to and in accordance with the applicable provisions of this lease,
\nshall, at Tenant’s expense, furnish the electricity needed to operate the 50th
\nFloor AC Unit (from the electricity furnished by Landlord to Tenant pursuant to
\nArticle 14 hereof) and the chilled water needed to operate the 50th Floor AC
\nUnit (from the chilled water furnished by Landlord to Tenant pursuant to Section
\n15.04 hereof or the chilled water generated by Tenant’s Cooling Plant); it being
\nunderstood that Landlord shall have no separate obligation to furnish
\nelectricity or chilled water or any other service to the 50th Floor AC Unit. The
\n50th Floor HVAC Units shall be deemed part of “Tenant’s Improvements” for all
\npurposes of this lease; provided, however, that, in all events, each of the 50th
\nFloor HVAC Units shall be surrendered with the Premises upon the expiration or
\nearlier termination of this lease (or, as the case may be, the expiration or
\nearlier termination of this lease with respect to the entirety of the Premises
\nlocated on the 50th Floor of the Building) in the same or better condition, and
\nwith equal or better capacity, than each such unit is in on the date hereof,
\nsubject to ordinary wear and tear. Landlord makes no representation or warranty
\nwhatsoever concerning the capacity or existing condition of either of the 50th
\nFloor HVAC Units. Notwithstanding the foregoing provisions of this Section
\n15.03(c), if, at anytime, the Premises shall include some, but less than all,
\nthe leasable area on the 50th floor of the Building, then Tenant shall enter
\ninto an agreement with Landlord (or, at Landlord’s option, the tenant(s) or
\nother occupant(s) of such other leasable area), which agreement shall (I)
\nprovide that Tenant, without charge to Landlord or the tenant(s) or other
\noccupant(s) of such leasable area, shall provide heat service and
\nair-conditioning service to such other leasable area substantially as it
\nprovides heat service and air-conditioning service to the Premises (both during
\nand after Business Hours), (II) provide that Landlord (or, as the case may be,
\nthe tenant(s) or other occupant(s) of such other leasable area), from time to
\ntime, shall reimburse Tenant its (or their) proportionate share of the
\nreasonable costs incurred by Tenant in repairing and replacing the 50th Floor
\nHVAC Units (which proportionate share shall be computed on a pro-rata rentable
\nsquare basis), and (III) contain provisions substantially similar to Section
\n15.03(b) hereof and Section 15.10(a) and (b) hereof with respect to such heat
\nservice and air-conditioning service.<\/p>\n
15.04. (a) Landlord shall furnish chilled water to
\nthe SCW Distribution Points, 24 hours a day, 7 days a week, at a
\nlevel which, subject to Tenant making proper connection thereto,<\/p>\n
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\nwill enable Tenant to draw at least 400 tons of chilled water, in the aggregate,
\nfrom such points at any time. Tenant shall have the right to draw from the SCW
\nDistribution Points, at any instance in time, up to, but not in excess of, 400
\ntons of chilled water, which chilled water shall be used in the operation of
\nTenant’s Supplemental AC Equipment (as hereinafter defined), the 50th Floor AC
\nUnit and\/or Tenant’s UPS System (as hereinafter defined). Tenant, at its
\nexpense, shall be responsible for connecting to the SCW Distribution Points and
\ndistributing any chilled water drawn from such SCW Distribution Points to
\nTenant’s Supplemental AC Equipment, the 50th Floor AC Unit and\/or Tenant’s UPS
\nSystem. Such chilled water shall be furnished at 48 degrees F., and shall be
\nreturned at 58 degrees F.; the system differential pressure shall be 20 psig at
\nthe highest floor. As used herein, the “SCW DISTRIBUTION POINTS” shall mean the
\nsingle point on each Premises Floor located in the Building’s core, the single
\npoint on the roof of the Building and the single point on the 20th floor of the
\nBuilding, which shall be designated by Landlord, and, at which Tenant, after the
\ncompletion of the Secondary Work, shall be able to draw chilled water.
\nNotwithstanding the foregoing, Landlord shall have no obligations under this
\nSection 15.04(a) until after the substantial completion of the Secondary Work.
\nThe term “TENANT’S SUPPLEMENTAL AC EQUIPMENT” shall mean, collectively, all of
\nTenant’s water-cooled supplemental air-conditioning units.<\/p>\n
(b) (1) For purposes of this Section 15.04, the
\nfollowing terms shall have the following meanings:<\/p>\n
“TON HOURS”, for any period as measured by any
\n chilled water meter, shall mean a number of ton hours equal to the
\n quotient of (A) the product of (y) the number of BTUs of chilled water
\n consumed by Tenant during such period (as measured by such meter),
\n multiplied by (z) the “Meter Factor” (as such term is used in the
\n vernacular of the industry) applicable to the make and model number of
\n such meter, divided by (B) the BTUH Factor applicable to the make and
\n model number of such meter.<\/p>\n
“ON-PEAK HOURS”, for any period, shall mean
\n those hours which, during such period, are designated as on-peak hours
\n (or another designation similar thereto) on the electric rate schedule
\n at which Landlord purchases electricity for the Building from the
\n Utility Company. As of the date hereof, On-Peak Hours shall be the
\n hours from 8:00 a.m. to 10:00 p.m. Monday through Friday.<\/p>\n
“OFF-PEAK HOURS”, for any period, shall mean
\n those hours which are not On-Peak Hours during such period.<\/p>\n
“ON-PEAK SUPPLEMENTAL CHILLED WATER RATE”, as of
\n the date hereof, shall mean eighteen cents ($0.18) per Ton Hour, it
\n being agreed that such rate shall be Adjusted By CPI.<\/p>\n
“OFF-PEAK SUPPLEMENTAL CHILLED WATER RATE”, as
\n of the date hereof, shall mean thirteen cents ($0.13) per Ton Hour, it
\n being agreed that such rate shall be Adjusted By CPI.<\/p>\n
“MINIMUM PER DIEM SCW CHARGE” shall mean an
\n amount equal to $137, which amount shall be Adjusted By CPI.<\/p>\n
“50TH FLOOR PER DIEM CREDIT” shall mean (I)
\n during any period that the Premises include any space on the 50th floor
\n of the Building, an amount equal to $131, which amount shall be
\n Adjusted By CPI, and (II) during any other period, $0.<\/p>\n
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\n 100
\n (2) Tenant, prior to drawing any chilled water
\nfrom any SCW Distribution Points, shall, at its expense, install one or more
\nmeters (each, a “CHILLED WATER METER”) at one or more of such point(s) (or such
\nother location on the Building’s chilled water loop approved by Landlord) which
\nwill monitor Tenant’s draw and consumption of chilled water from all the SCW
\nDistribution Points during each of On-Peak Hours and Off-Peak Hours, which
\nmeter shall (i) separately register the number of Ton Hours consumption during
\nOn-Peak Hours and consumption during Off-Peak Hours, (ii) otherwise provide
\naccurate time of day readings of Tenant’s draw and consumption of chilled water
\nfrom the SCW Distribution Points, and (iii) otherwise be in conformity with the
\nmeter specifications set forth on Exhibit V-1 attached hereto. In addition,
\nTenant, together with the Chilled Water Meters, shall install such equipment as
\nwill prevent Tenant from drawing, at any instant in time, chilled water from the
\nSCW Distribution Points in excess of 400 tons in the aggregate.<\/p>\n
(3) Tenant, within thirty (30) days after its
\nreceipt of a written demand therefor, shall pay to Landlord as Additional
\nCharges hereunder, for all chilled water it draws from the SCW Distribution
\nPoints during any period, an amount equal to the positive excess, if any, of (I)
\nthe greater of (x) an amount equal to Minimum Per Diem SCW Charge multiplied by
\nthe number of days in such period, and (y) the Meter Charge for such period,
\nover (II) the 50th Floor Per Diem Credit multiplied by the number of days in
\nsuch period. As used herein, the “METER CHARGE”, for any period, shall mean an
\namount equal to the sum of (i) the product obtained by multiplying (1) the
\naggregate of all Ton Hours consumed during On-Peak Hours during such period (as
\nmeasured by the Chilled Water Meters), by (2) the On-Peak Supplemental Chilled
\nWater Rate applicable during such period, plus (ii) the product obtained by
\nmultiplying (A) the aggregate of all Ton Hours consumed during Off-Peak Hours
\nduring such period (as measured by the Chilled Water Meters) by (B) the Off-
\nPeak Supplemental Chilled Water Rate applicable during such period.<\/p>\n
15.05. (a) Landlord shall provide passenger elevator service
\nto the Premises Floors, which service shall be provided (i) during Business
\nHours, through at least eight (8) hi-rise passenger elevators, and (ii) at all
\nother times, through at least the Evening Elevator Number (as hereinafter
\ndefined) of hi-rise passenger elevators. Such passenger elevator service shall
\ncontinue, throughout the term of this lease, to be furnished by the passenger
\nelevators now serving the Premises Floors and, throughout the term of this
\nlease, no floor, other than the floors now regularly served by such passenger
\nelevators (i.e., only the 41st through 50th floors of the Building, the
\nBuilding’s ground floor lobby and, as to the Bank X Concourse Elevator (as
\nhereinafter defined) only, the retail concourse level of the Building), shall be
\nserved by such passenger elevators. Landlord’s obligation to provide passenger
\nelevator pursuant to the provisions of this Section 15.05(a) shall not commence
\nwith respect to any Premises Floor until the Business Occupancy Date with
\nrespect to such Premises Floor. As used herein the term “EVENING ELEVATOR
\nNUMBER” shall mean (i) during the Bank X Control Period, seven (7), and (ii)
\nduring any other period, two (2); provided, however, that, during any such other
\nperiod, Tenant, by notice to Landlord, may request that the Evening Elevator
\nNumber be increased to a whole number which is not greater than seven (7) (the
\nexcess of such requested whole number over two (2) being called the “REQUESTED
\nINCREMENTAL NUMBER”), and, in such event, (x) Landlord, promptly after its
\nreceipt of such a notice, shall install the access and security controls in the
\nRequested Incremental Number of hi-rise passenger elevators as shall be
\nnecessary for such passenger elevators to serve the Premises Floors at times
\nother than Business Hours consistent with Landlord’s security requirements for
\nthe Building, (y) after the installation of such controls, the Evening Elevator
\nNumber<\/p>\n
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\n 101
\nshall be increased to be the sum of two (2) plus the Requested Incremental
\nNumber, and (z) Tenant, within thirty (30) days after written demand, shall
\nreimburse Landlord all of the reasonable out-of-pocket expenses incurred by
\nLandlord in installing such controls.<\/p>\n
(b) Prior to the Business Occupancy Date with respect
\nto each Premises Floor, Landlord, provided it shall have received forty-eight
\n(48) hours notice of Tenant’s requirements, shall furnish Tenant, after Business
\nHours on up to two (2) Business Days for each Premises Floor (but not exceeding
\nten (10) Business Days in the aggregate for the move-in of the Premises), with
\nthe exclusive use of up to two (2) high-rise passenger elevators for the purpose
\nof facilitating Tenant’s move-in with respect to such Premises Floor. When
\nTenant shall vacate any Premises Floor, Landlord, provided it shall have
\nreceived adequate notice of Tenant’s requirements, shall furnish Tenant, after
\nBusiness Hours on up to two (2) Business Days for each Premises Floor (but not
\nexceeding ten (10) Business Days in the aggregate for the vacation of Premises
\nFloors during the term of this lease), with the exclusive use of up to two (2)
\nhigh-rise passenger elevators for the purpose of facilitating Tenant’s move-out
\nof such Premises Floor. Tenant, within thirty (30) days after a written demand,
\nshall reimburse Landlord all out-of-pocket costs incurred by Landlord in
\nconnection with or as a result of Tenant’s use of any passenger elevators for
\nits move-in or move-out of any Premises Floor pursuant to the provisions of this
\nSection 15.05(b).<\/p>\n
(c) Notwithstanding anything to the contrary that may
\nbe contained herein, in no event shall Tenant ever use, or permit any Tenant
\nParty to use, any passenger elevator(s) to carry construction personnel or
\nmaterials. Tenant may, however, use the passenger elevators (i) for regular
\ndeliveries of mail, food and similar items (but may not, except as provided
\nbelow, utilize hand trucks or similar devices to effect such deliveries), and
\n(ii) during the Bank X Control Period only, for the movement, from one Premises
\nFloor to another (but not between the Premises and the Building’s lobby), of
\npackages and boxes by hand truck or similar device, provided, that (x) such
\npackages or boxes shall not be larger than the size of packages and boxes
\nnormally handled by package delivery services such as Federal Express or UPS,
\nand (y) such packages and boxes shall not consist or contain heavy furniture or
\nequipment; it being agreed that Tenant shall be responsible for any repairs and
\nreplacements to the passenger elevators the need for which arises from any uses
\npursuant to this sentence. In addition, Tenant, during the prosecution of
\nAlterations, may allow its construction personnel to use the Building’s fire
\nstairs to travel from one Premises Floor to another (but not between the
\nPremises and the Building’s lobby); provided, however, that (A) Tenant shall
\ncause such fire stairs to be kept unobstructed and clean and free and debris at
\nall times, and shall cause all the doors on the Premises Floors which lead to
\nthe fire stairs to be kept closed when not in actual use, and (B) Tenant shall
\nbe responsible for any repairs and replacements to the fire stairs the need for
\nwhich arises from any use pursuant to this sentence.<\/p>\n
15.06. (a) Landlord, during Business Hours, shall provide
\nTenant with freight elevator service to each Premises Floor (and to other floors
\nof the Building in connection with Tenant’s performance of any permitted
\nAlterations or permitted maintenance, repairs or replacements of Tenant’s
\nImprovements on such other floors) on a non-exclusive, first-come first-served
\nbasis (i.e., no advance scheduling). Tenant, however, shall not have the right
\nto use any of the Building’s freight elevators during Business Hours for bulk
\ndeliveries (i.e., deliveries requiring multiple trips) of construction
\nmaterials, furniture or equipment.<\/p>\n
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\n (b) If Tenant shall require freight elevator service
\nother than during Business Hours (“OVERTIME FREIGHT ELEVATOR SERVICE”), then
\nLandlord shall provide the same on a first-reserved first-served basis, (i) upon
\nnotice from Tenant that is received by Landlord no less than five (5) hours’ in
\nadvance, for evening overtime service after 6:00 p.m. on Business Days, (ii)
\nupon notice from Tenant that is received by Landlord before Noon on the
\npreceding Business Day, for overtime service on non-Business Days or (iii) upon
\nnotice from Tenant that is received by Landlord before Noon on the preceding
\nBusiness Day, for morning overtime service before 8:00 a.m. on Business Days.
\nTenant, within thirty (30) days after its receipt of a written demand therefor,
\nshall pay to Landlord the applicable Overtime Freight Rate (as hereinafter
\ndefined) for any Overtime Freight Elevator Service. As of the date hereof, the
\n“OVERTIME FREIGHT RATE” is $55 per hour per freight elevator, with (x) a minimum
\n2-hour charge of $110 per freight elevator for any period of service commencing
\nat 6:00 p.m. on a Business Day, and (y) a minimum 4-hour charge of $220 per
\nfreight elevator for any other period of service (it being agreed that the
\nminimum charge for any period of service may satisfied collectively by Tenant
\nand one or more other tenants or occupants of the Building). The Overtime
\nFreight Rate (as well as the minimum charges derived therefrom) shall be
\nAdjusted by CPI.<\/p>\n
(c) Notwithstanding anything to the contrary contained
\nin the foregoing provisions of this Section 15.06, Tenant, during the Section
\n15.06(c) Period (as hereinafter defined) only, shall have the exclusive right,
\nboth during and after Business Hours, to use the Designated Freight Elevator (as
\nhereinafter defined); provided, however, that (I) such exclusivity shall not
\napply during any period during the Section 15.06(c) Period that any one of the
\nBuilding’s three freight elevators is out of service, (II) Landlord, even at
\ntimes during the Section 15.06(c) Period when such exclusivity does apply, shall
\nhave the right to use, or permit to be used, the Designated Freight Elevator for
\nemergency and\/or critical deliveries (it being understood that any critical
\ndelivery shall be limited to a single trip), and (III) Tenant shall still be
\nobligated to pay the Overtime Freight Rate for the use of the Designated Freight
\nElevator after Business Hours during the Section 15.06(c) Period. As used
\nherein, the following terms shall have the following meanings: (A) the “SECTION
\n15.06(C) PERIOD” shall mean the period commencing on the date hereof and ending
\non the first to occur of (i) December 31, 1994, and (ii) the date that the
\nBusiness Occupancy Date shall have occurred with respect to at least six (6)
\nPremises Floors; and (B) the “DESIGNATED FREIGHT ELEVATOR” shall mean the
\nfreight elevator in the Building which shall be designated as such by Landlord
\npursuant to this Section 15.06(c) (which freight elevator shall be designated
\nfrom the Building’s two available freight elevators which generally provide
\nnon-exclusive service (i.e., other than the freight elevator exclusively
\ndedicated to PSI pursuant to its lease)), it being agreed that Landlord may
\nchange the Designated Freight Elevator from time to time during the Section
\n15.06(c) Period. The second sentence of Section 15.06(a) shall not be applicable
\nto the Designated Freight Elevator during any portion of the Section 15.06(c)
\nPeriod during which Tenant shall have the exclusive right to use the Designated
\nFreight Elevator pursuant to this Section 15.06(c).<\/p>\n
(d) Freight elevator service shall include, whenever
\nTenant shall so elect, use of a loading dock and there shall be no separate
\ncharge therefor.<\/p>\n
15.07. (a) Landlord shall cause the Premises and the
\napplicable portions of the Base Building (including the exterior
\nwindows on each Premises Floor), to be cleaned in accordance with
\nthe cleaning specifications set forth on Exhibit L annexed hereto
\n(herein called the “CLEANING SPECIFICATIONS”). Tenant shall pay<\/p>\n
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\nto Landlord, within thirty (30) days after written demand, the additional costs
\nincurred by Landlord for (i) extra cleaning work in the Premises required
\nbecause of (x) carelessness, misuse or neglect on the part of Tenant or any
\nTenant Party or its or their visitors, (y) interior glass partitions or unusual
\nquantity of interior glass surfaces, and (z) materials or finishes installed by
\nor on behalf of Tenant which are unusually difficult or time-consuming to clean,
\nand (ii) removal from the Premises and the Building of any refuse and rubbish of
\nTenant in excess of that ordinarily accumulated in business office occupancy,
\nincluding, without limitation, kitchen refuse and rubbish, and (iii) removal
\nfrom the Premises and the Building of any refuse and rubbish of Tenant at times
\nother than Landlord’s standard cleaning times.<\/p>\n
(b) Notwithstanding the foregoing provisions of Section
\n15.07(a), Landlord shall not be required to clean any portions of the Premises
\nused for (A) kitchen, cafeteria or dining facilities, kitchenettes, pantries and
\nvending machine areas, (B) private lavatories or toilets installed by Tenant or
\nany Tenant Party, (C) any gymnasium or exercise facilities, (D) printing, or (E)
\nother special purposes requiring greater or more difficult cleaning work than
\noffice areas (it being agreed that trading floor use is not such a special
\npurpose); and Tenant agrees, at Tenant’s expense, to retain Landlord’s cleaning
\ncontractor (and no other cleaning contractor) to perform such cleaning;
\nprovided, however, that if (i) Landlord’s cleaning contractor proposes to charge
\nTenant for such additional cleaning services at rates which, in the aggregate,
\nare materially in excess of the market rates for such additional cleaning
\nservices (which “market rates” shall be determined with reference to the rates
\ncharged for such services by cleaning contractors of Similar Buildings), and
\n(ii) Tenant, prior to retaining Landlord’s cleaning contractor for such
\nadditional cleaning services, notifies Landlord thereof in writing, then
\nLandlord shall reimburse Tenant the amount of such excess (unless Landlord, at
\nits option, shall, in lieu thereof, grant Tenant the right to employ its own
\ncontractor to perform such additional cleaning services).<\/p>\n
(c) Landlord, its cleaning contractor and their
\nrespective employees shall have access to the Premises after 6:00 p.m. and
\nbefore 6:00 a.m. and shall have the right to use, without charge therefor, all
\nlight, power and water in the Premises reasonably required to clean the Premises
\nas required under this Section 15.07.<\/p>\n
(d) Tenant shall not clean, nor require, permit, suffer
\nor allow any windows in the Premises to be cleaned, from the outside in
\nviolation of Section 202 of the Labor Law, or any other applicable law.<\/p>\n
(e) Notwithstanding anything to the contrary contained
\nin the foregoing provisions of this Section 15.07, Landlord shall have no
\nobligation to provide any of the aforesaid cleaning services to any Premises
\nFloor (or the Premises thereon) prior to the Business Occupancy Date therefor.<\/p>\n
15.08. Landlord shall provide life safety service through the
\nBuilding’s Class E System to the DGPs serving the Premises. Landlord shall
\nprovide Tenant with at least eight (8) points on each Premises Floor at which
\nTenant may tie-in to the Building’s Class E System.<\/p>\n
15.09. Except as expressly provided in this Article
\n15, Landlord shall not be required to provide any services to the
\nPremises.<\/p>\n
15.10. (a) Landlord, subject to Section 15.10(b), (c)
\nand (d) below, reserves the right, without liability to Tenant
\nand without it being deemed a constructive eviction, to stop or<\/p>\n
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\n 104
\ninterrupt any heating, elevator, escalator, lighting, ventilating,
\nair-conditioning, steam, power, electricity, water, chilled water, cleaning or
\nother service and to stop or interrupt the use of any Building Systems or
\nBuilding facilities at such times as may be necessary and only for as long as
\nmay reasonably be required by reason of accidents, strikes, or the making of
\nalterations, additions, improvements, replacements or repairs or the inability
\nto secure a proper supply of fuel, gas, steam, water, electricity, labor or
\nsupplies, or by reason of any other similar or dissimilar cause beyond the
\nreasonable control of Landlord. No such stoppage or interruption shall (i)
\nresult in any liability from Landlord to Tenant (except for any liability, other
\nthan consequential damages, arising out of a violation of the provisions of
\nSection 15.10(b), (c) and (d) below) or (ii) entitle Tenant to any diminution or
\nabatement of rent (except as may be expressly provided for in Section 33.01
\nhereof) or other compensation nor shall this lease or any of the obligations of
\nTenant be affected or reduced by reason of any such stoppage or interruption.<\/p>\n
(b) Landlord shall not (i) voluntarily effect any
\nService Shutdown of electricity without first providing Tenant with at least ten
\n(10) Business Days notice of the approximate time and duration of such Service
\nShutdown, (ii) voluntarily effect any Service Shutdown of any other service
\nwithout first providing Tenant with at least five (5) Business Days notice of
\nthe approximate time and duration of such Service Shutdown, (iii) voluntarily
\neffect or continue a Service Shutdown of electricity, chilled water or make-up
\nwater (as defined below) other than during the hours from 8:00 a.m. Saturday to
\n8:00 p.m. Sunday, (iv) voluntarily effect or continue a Service Shutdown of
\nchilled water and make-up water simultaneously; provided, however, that Landlord
\nmay voluntarily effect any Service Shutdown (including without limitation a
\nService Shutdown of electricity, chilled water or make-up, or of chilled water
\nand make-up water simultaneously) at any time or times, and without any
\nrequirement that it give Tenant notice thereof, if (A) the Service Shutdown is
\neffected by Landlord with a view toward averting or reducing danger to persons
\nor damage to property (including without limitation damage to any Building
\nSystems), (B) the Service Shutdown is effected by Landlord in response to any
\nactual or perceived emergency, (C) the Service Shutdown is effected by Landlord
\nin response to the directive of a governmental or quasi-governmental authority
\nor a public utility, or (D) the Service Shutdown is not a Service Shutdown to
\nelectricity, chilled water or make-up water, and does not otherwise materially
\naffect the operation of Tenant’s business in the Premises; provided, further,
\nhowever, that, in the cases described in clauses (A), (B) and (C) above,
\nLandlord shall, if practicable, give Tenant such prior notice of the Service
\nShutdown to be effected as shall be reasonable under the circumstances (which
\nnotice may be written or oral), except that Landlord shall never be required to
\ngive notice in cases where it effects a Service Shutdown in response to an
\nactual or perceived emergency which could imminently result in danger to health
\nor safety of persons or in substantial damage to property. For purposes of this
\nSection 15.10(b), the term “SERVICE SHUTDOWN” shall mean (x) a shutdown of one
\nor more Building System(s) which provide one or more Building Services to
\nTenant, or (y) any other act with respect to a Building System which results in
\na diminution in the level of the Building Service provided thereby below the
\nlevels required hereunder (other than a de minimis diminution which is not of
\nelectricity); provided, however, that the term “Service Shutdown” shall not
\ninclude a shutdown of, or diminution in, either (I) passenger elevator service
\n(as set forth in Section 15.05 hereof) or (II) freight elevator service (as set
\nforth in Section 15.06 hereof) (it being agreed that the provisions of Section
\n15.10(d) below, and not the provisions of this Section 15.10(b), shall apply to
\npassenger elevator service and freight elevator service). As used herein,
\nLandlord shall be<\/p>\n
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\n 105
\ndeemed to have “VOLUNTARILY EFFECTED” a Service Shutdown only if Landlord, by
\nits own direct, intentional and affirmative act, effects such a Service
\nShutdown, and Landlord shall be deemed to have “VOLUNTARILY CONTINUED” a Service
\nShutdown only if Landlord, by its own direct, intentional and affirmative act or
\nomission, continues a theretofore effected Service Shutdown. As used in this
\nSection 15.10(b), the term “MAKE-UP WATER” shall mean the domestic water, if
\nany, which is furnished to the valved outlet on the roof of the Building from
\nwhich Tenant intends to draw domestic water to be used by Tenant as “make-up
\nwater” in connection with Tenant’s Cooling Plant (as defined in Article 41
\nhereof).<\/p>\n
(c) If (i) Landlord, pursuant to Section 15.10(b)
\nabove, shall deliver to Tenant a notice indicating that a Proposed Optional
\nElectricity Service Shutdown (as hereinafter defined) shall occur and setting
\nforth the scheduled date and time therefor, and (ii) Tenant, on or prior to 5
\np.m. of the Business Day immediately following the Business Day that Tenant
\nreceives such notice (time being of the essence), shall deliver (by hand
\ndelivery to the applicable Building Office) a notice (x) requesting that such
\nProposed Optional Electricity Service Shutdown be rescheduled for a different
\ndate other than the scheduled date therefor set forth in Landlord’s notice, and
\n(y) setting forth one or more requested rescheduled dates, it being agreed that
\nno such requested rescheduled date shall be more than two (2) weeks after the
\nscheduled date set forth in Landlord’s notice (which notice of Tenant is herein
\ncalled a “TENANT’S SECTION 15.10(C) REQUEST NOTICE”), then, and only in such
\nevents, Landlord shall promptly reschedule the Proposed Optional Electricity
\nService Shutdown to occur on one of the requested rescheduled dates set forth in
\nTenant’s Section 15.10(c) Request Notice (or on some later date which is
\nconsistent with the foregoing provisions of this Section 15.10), unless
\nLandlord, in its reasonable judgement, determines that another tenant or
\noccupant of the Building will be inconvenienced (other than to a de minimis
\nextent) by such rescheduling (in which event Landlord need not reschedule the
\nProposed Optional Electricity Service Shutdown and may voluntarily effect the
\nsame on the original scheduled date without regard to Tenant’s Section 15.10(c)
\nRequest Notice). In any case where Landlord actually reschedules a Proposed
\nOptional Electricity Service Shutdown pursuant to the foregoing provisions of
\nthis Section 15.10(c) or otherwise at Tenant’s request, Tenant shall reimburse
\nLandlord all out-of-pocket costs incurred by Landlord in connection with such
\nrescheduling. As used herein, the term “PROPOSED OPTIONAL ELECTRICITY SERVICE
\nSHUTDOWN” shall mean any proposed Service Shutdown of electricity which is to be
\nvoluntarily effected by Landlord other than (i) with a view toward averting or
\nreducing danger to persons or damage to property, (ii) in response to any actual
\nor perceived emergency, or (iii) in response to the directive of a governmental
\nor quasi-governmental authority or a public utility. Notwithstanding the
\nforegoing provisions of this Section 15.10(c), Tenant shall not have the right
\nto serve more than one Tenant’s Section 15.10(c) Request Notice with respect to
\nany particular Proposed Optional Electricity Service Shutdown.<\/p>\n
(d) Landlord shall not (i) during Rush Hours, shutdown
\n(i.e., take or keep out of service for repairs or any other purpose), any of the
\npassenger elevators which are required to serve the Premises pursuant to the
\nprovisions of Section 15.05 hereof, (ii) during Mid-Day Hours, shutdown more
\nthan two (2) of the passenger elevators which are required to serve the Premises
\npursuant to the provisions of Section 15.05 hereof (except that Landlord may, in
\naddition, shutdown a third such passenger elevator if such shutdown is
\nreasonably needed to facilitate work to be performed on or with respect to
\neither of the first two such passenger elevators which were shutdown), (iii)
\nduring Off Hours, shutdown the passenger elevators which are required to serve
\nthe Premises pursuant to the provisions of Section 15.05<\/p>\n
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\n 106
\nhereof, such that less than two (2) of such passenger elevators shall then serve
\nthe Premises (or, during any period when the Evening Elevator Number is less
\nthan four (4), such that less than one (1) of such passenger elevator shall then
\nserve the Premises), or (iv) during any period, shutdown the Building’s freight
\nelevators, such that there is no generally available freight elevator to provide
\nthe service required under Section 15.06 hereof; provided, however, that
\nLandlord may shutdown any or all of the passenger elevators required to serve
\nthe Premises pursuant Section 15.05 and\/or any or all of the Building’s freight
\nelevators, at any time or times, if (A) the shutdown is effected by Landlord
\nwith a view toward averting or reducing danger to persons or damage to property
\n(including without limitation damage to any elevators), (B) the shutdown is
\neffected by Landlord in response to any actual or perceived emergency, or (C)
\nthe shutdown is effected by Landlord in response to the directive of a
\ngovernmental or quasi-governmental authority or a public utility. As used
\nherein, (I) the term “RUSH HOURS” shall mean the hours from 7:00 a.m. to 9:00
\na.m. and the hours from 4:00 p.m. to 6:00 p.m., Mondays through Fridays (other
\nthan Holidays), (II) the term “MID-DAY HOURS” shall mean the hours from 9:00
\na.m. to 4:00 p.m., Mondays through Fridays (other than Holidays), and (III) the
\nterm “OFF HOURS” shall mean all hours on all days other than Rush Hours and
\nMid-Day Hours.<\/p>\n
15.11. Only Landlord or persons approved by Landlord (which
\napproval shall not unreasonably be withheld) shall be permitted to furnish or
\nsell laundry, linen, towels, drinking water, ice, food, beverages, bootblacking,
\nbarbering and other similar supplies and services to tenants. Such persons
\napproved by Landlord may contract directly with Tenant. Landlord may fix the
\nreasonable circumstances under which such supplies and services are to be
\nfurnished or sold. Landlord expressly reserves the right to exclude from the
\nBuilding any person not so approved by Landlord. However, Tenant, its regular
\noffice employees or invitees may personally bring food or beverages into the
\nBuilding or order the same for delivery for consumption within the Premises
\nsolely by Tenant, its regular office employees or invitees.<\/p>\n
15.12. Landlord, after installing the Steam Outlets (as
\nhereinafter defined), shall furnish steam to the Steam Outlets, at a aggregate
\nlevel which, subject to Tenant making proper connection to such outlets, will
\nenable Tenant to draw at least 3000 pounds of steam per hour, in the aggregate,
\nfrom such outlets. Tenant shall have the right to draw steam from the Steam
\nOutlets up to, but not in excess of, 3000 pounds of steam per hour. Tenant,
\nprior to drawing any steam from the Steam Outlets, shall install a steam meter
\nconforming to the meter specifications set forth on Exhibit V-2 attached hereto
\nwhich shall measure the amount so drawn. Tenant, from time to time within thirty
\n(30) days after being billed therefor, shall pay Landlord for all steam drawn by
\nTenant, as measured by such steam meter, in amounts determined by applying the
\napplicable utility rates (as set forth on applicable utility rate schedule),
\nexcluding sales tax, to the steam so drawn. Tenant shall also pay, and Landlord
\nshall remit to the appropriate governmental agency, all sales tax payable on the
\namounts set forth in the preceding sentence. Landlord, at its expense, shall
\ninstall the Steam Outlets on or prior to the date which is six (6) weeks after
\nthe date that Tenant shall designate, by written notice to Landlord, the floor
\non which it will initially locate its cafeteria, subject, however, to delays
\noccasioned by one or more Events of Force Majeure and\/or one or more delays
\noccasioned by Tenant. As used herein, the “STEAM OUTLETS” shall mean (i) a 3
\ninch valved outlet, with a 1-1\/2 inch medium pressure condensate return line,
\nwhich shall be located on the Premises Floor which Tenant designates as the
\nfloor on which it will initially locate its cafeteria, and (ii) a 3 inch valved
\noutlet, with a 1-1\/2 inch<\/p>\n
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\n 107
\nmedium pressure condensate return line, which shall be located on the Premises
\nFloor which is immediately below such floor.<\/p>\n
15.13. Landlord hereby grants Tenant the exclusive right to
\nuse the gas riser now serving the 50th floor of the Building from the point at
\nwhich gas service to the 50th floor is now separately metered to the 50th floor
\nend thereof. Tenant shall make its own arrangements with the utility company for
\nthe furnishing of gas to the Premises. Landlord makes no representation or
\nwarranty whatsoever as to the condition of such gas riser.<\/p>\n
15.14. Landlord shall not be liable in any event to Tenant for
\nany failure, interruption or defect in the supply or character of steam or gas
\nfurnished to the Premises by reason of any act or omission of the public utility
\nserving the Building with steam or gas or for any other reason not attributable
\nto Landlord’s willful misconduct or negligence (but in no event shall Landlord
\nbe responsible for any consequential damages).<\/p>\n
ARTICLE 16<\/p>\n
Access and Name of Building<\/p>\n
16.01. Except for the space within the inside surfaces of all
\nwalls bounding the Premises, slab ceilings, floors, windows and doors bounding
\nthe Premises (other than any such space used on the date hereof for shafts,
\nstacks, pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or
\nother Building facilities), all of the Building (including, without limitation,
\nexterior Building walls, core walls, doors and entrances (or, on any
\nmulti-tenant floor, corridor walls, doors and entrances), any terraces or roofs
\nand any areas on any Premises Floor which are not included within the Premises
\n(and further including without limitation the aforementioned space used on the
\ndate hereof for shafts, stacks, pipes, conduits, fan rooms, ducts, electrical or
\nother utilities, sinks or other Building facilities), and the use thereof, as
\nwell as access thereto through the Premises for the purposes of operation,
\nmaintenance, alteration, addition, improvement, replacement and repair) is
\nreserved to Landlord, one or more of the other Condominium Parties and\/or
\npersons authorized by either Landlord or one or more of the other Condominium
\nParties, and no space or property so reserved shall be deemed to be part of the
\nPremises.<\/p>\n
16.02. (a) Landlord reserves the right, and Tenant shall
\npermit Landlord and persons authorized by Landlord to install, erect, use,
\nmaintain, repair and replace pipes, ducts and conduits in and through the
\nPremises; provided, however, that Landlord, after the date hereof, may locate
\nany such pipe, duct or conduit within the Premises (as opposed to the areas
\nreserved to Landlord pursuant to Section 16.01 hereof) only if it is not
\nfeasible for Landlord to locate such pipe, duct or conduit within areas reserved
\nto Landlord pursuant to Section 16.01 hereof; provided, further, however, that,
\neven in cases where, pursuant to the preceding proviso, Landlord may locate a
\npipe, duct or conduit within the Premises, Landlord may only locate such pipe,
\nduct or conduit within one or more of the Primary Landlord Conduit Areas (as
\nhereinafter defined), unless it is also not feasible for Landlord to locate such
\npipe, duct or conduit within Primary Landlord Conduit Areas, in which event
\nLandlord may locate such pipe, duct or conduit within one or more of the
\nSecondary Landlord Conduit Areas.<\/p>\n
(b) Landlord, prior to locating any pipe, duct or
\nconduit within the Premises pursuant to the provisions of Section 16.02(a) above
\n(whether within any Primary Landlord Conduit Areas or Secondary Conduit Areas),
\nshall notify Tenant of Landlord’s intention to do so, which notice shall contain
\nan<\/p>\n
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\n 108
\nadequate description of the location(s) within the Premises in which Landlord
\nproposes to locate such pipe, duct or conduit (such location(s) being herein
\ncalled “LANDLORD’S PROPOSED LOCATION(S)”), it being agreed that any such notice
\nshall be accompanied by, and include, a floor plan(s) delineating such
\nlocation(s) to the extent that such delineation is needed to comprise an
\nadequate description of such location(s). Tenant, within ten (10) Business Days
\nafter its receipt of such notice, shall have the right, by notice to Landlord
\n(given within such 10 Business Day period), to designate a different location(s)
\nwithin the Premises, or within the areas reserved to Landlord pursuant to
\nSection 16.01 hereof, in which such pipe, duct or conduit (such different
\nlocation(s) are herein called “TENANT’S ALTERNATIVE LOCATION(S)”). So long as it
\nis physically feasible to locate the pipe, duct or conduit in question in
\nTenant’s Alternative Location(s), Landlord shall locate the same in Tenant’s
\nAlternative Location(s) rather than Landlord’s Proposed Location(s). In any such
\ncase, however, Tenant, within thirty (30) days after any written demand, shall
\npay to Landlord an amount equal to Landlord’s reasonable estimate of the
\nincremental cost of locating such pipe, duct or conduit in Tenant’s Alternative
\nLocation(s), as opposed to locating the same in Landlord’s Proposed Location.<\/p>\n
(c) Any pipe, duct or conduit located within the
\nPremises shall be concealed behind then existing walls, ceilings or raised
\nfloors of the Premises if feasible (and if not feasible, then the same shall be
\ncompletely furred at points immediately adjacent to partitioning, columns or
\nceilings).<\/p>\n
(d) As used in this Section 16.02, (I) the term
\n“FEASIBLE” shall mean both physically feasible and economically feasible, from
\nLandlord’s perspective, and consistent with all laws and requirements of public
\nauthorities, (II) the term “PRIMARY LANDLORD CONDUIT AREAS” shall mean any of
\n(x) the areas of the Premises located between the hung and structural ceiling of
\nthe Premises on each Premises Floor, (y) the areas of the Premises located
\nunderneath any raised flooring, and (z) the other areas of the Premises shown
\nhatched on Exhibit S attached hereto, and (III) the term “SECONDARY LANDLORD
\nCONDUIT AREAS” shall mean any area of the Premises which is adjacent to (A) any
\nwalls, floors or ceilings bounding the Premises (including without limitation
\ncore and exterior walls) or (B) any areas reserved to Landlord pursuant to
\nSection 16.01 hereof.<\/p>\n
16.03. (a) Subject to the terms of Sections 16.03(b) and
\n35.15, Landlord and persons authorized by Landlord shall have the right, upon
\nreasonable prior notice (except that no notice shall be required in the case of
\nemergency), to enter and\/or pass through the Premises at any reasonable times
\n(or at any time in the case of emergency) for any one or more of the following
\npurposes: (i) to examine the Premises and to show them to actual and prospective
\nCondominium Parties or Mortgagees, or prospective purchasers of the Building;
\n(ii) to make such alterations, additions, improvements, repairs or replacements
\nin or to the Real Property (excluding, however, the Premises and Tenant’s
\nImprovements located outside the Premises) as Landlord or any other Condominium
\nParty is required to make or deems reasonably necessary to make, (iii) to make
\n(x) such alterations, additions or improvements in and to the Premises (and
\nTenant’s Improvements located outside the Premises) as Landlord is required or
\nauthorized by this lease to make, or (y) such repairs or replacements in and to
\nthe Premises (and Tenant’s Improvements located outside the Premises) as
\nLandlord is required or permitted by this lease or by law to make; (iv) to
\nprovide the services which Landlord is required to provide hereunder; and (v) to
\nread any utility meters located therein.<\/p>\n
(b) Tenant, from time to time (but not more frequently
\nthan twice in any calendar year), may, upon not less<\/p>\n
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\nthan thirty (30) days prior written notice to Landlord, designate one or more
\ndiscrete portions of the Premises as high security areas (herein called the
\n“SECURITY AREAS”), provided, that (1) Tenant’s notice shall be accompanied by
\nfloor plans of the applicable Premises Floor(s) designating the Security Areas,
\nand (2) any such designation shall be reasonable in light of Tenant’s business
\nrequirements. Landlord shall have no right to enter any Security Areas except
\nfor any entry made (i) for the purpose of operating, maintaining, repairing and
\nreplacing the Building and\/or the Building Systems, and (ii) either (x) at times
\nreasonably designated by Tenant, or (y) at any time in case of emergency. Except
\nin the case of an emergency, Landlord shall notify Tenant prior to entering the
\nSecurity Areas and Tenant shall have the right to have its representative(s)
\naccompany Landlord’s representative(s) during any such entry; provided, however,
\nthat Tenant, at all times during Business Hours (and, upon 24 hours’ notice from
\nLandlord, at any other time), shall make one or more such representatives
\navailable to so accompany Landlord. Landlord shall have no obligation to provide
\nany services, or make any repairs, to the Security Areas, or to other portions
\nof the Premises, to the extent that access to the Security Areas is necessary to
\nprovide such services or make such repairs, unless Tenant shall provide Landlord
\nwith access to the Security Areas for purposes of providing such services or
\nmaking such repairs at those times that Landlord shall reasonably designate in
\nrespect thereof.<\/p>\n
16.04. (a) If at any time any windows of the Premises are
\neither temporarily darkened or obstructed by reason of any repairs,
\nimprovements, maintenance and\/or cleaning in or about the Building (or
\npermanently darkened or obstructed if required by law), or if any part of the
\nBuilding, other than the Premises or access thereto, is temporarily or
\npermanently closed or inoperable, the same shall be without liability to
\nLandlord and without any reduction or diminution of Tenant’s obligations under
\nthis lease. Nothing contained in this Section 16.04(a) shall be deemed to
\nabrogate any of Landlord’s obligations to furnish Building Services, as such
\nobligations are herein expressly set forth. In addition, this Section 16.04
\nshall not limit or restrict any abatement or termination right granted Tenant
\npursuant to the provisions of Article 19, 20 or 33.<\/p>\n
(b) (1) Landlord, except as hereinafter provided in
\nthis Section 16.02(b)(2), shall have the right to cover some or all of the
\nexterior windows serving the Premises with any Mylar (as hereinafter defined),
\nbut only if (i) Landlord is required to do so by law or requirement of public
\nauthority, or (ii) Landlord elects to do so in order to effect compliance with a
\nlaw or requirement of public authority, even though there may be alternative
\nmeans of effecting such compliance. The term “MYLAR” shall mean any mylar or any
\nother transparent window covering which may create a mirror-like effect. Any
\nMylar installed by Landlord on the exterior windows serving the Premises shall
\nbe of a grade which is consistent with the top grade of Mylar then customarily
\nbeing installed on windows in first-class office buildings located in the
\ndowntown Manhattan business district.<\/p>\n
(2) In any case described in Section 16.04(b)(1)(ii)
\nabove, Landlord, not less than thirty (30) days prior to covering any exterior
\nwindows serving the Premises with Mylar, shall give Tenant notice of its
\nintention to do so (any such notice being herein called a “LANDLORD’S MYLAR
\nNOTICE”), which notice shall (x) indicate the law or requirement of public
\nauthority in response to which Landlord proposes to so cover such windows, and
\n(y) whether Landlord proposes to so cover all or less than all of the exterior
\nwindows serving the Premises, and, if less than all, the approximate area(s) of
\nthe windows that Landlord proposes to cover. Tenant, within thirty (30) days
\nafter its receipt of a Landlord’s Mylar Notice (time being of the<\/p>\n
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\n 110
\nessence), may give a written notice to Landlord objecting to Landlord’s proposed
\ncovering of exterior windows serving the Premises with Mylar (such notice being
\nherein called the “TENANT’S MYLAR NOTICE”), which notice shall set forth one or
\nmore proposed alternative means by which Landlord may effect compliance with the
\nlaw or requirement of public authority in question (each such alternative means
\nbeing herein called a “TENANT MYLAR PROPOSAL”). If Tenant shall give Landlord a
\nTenant’s Mylar Notice, then, unless Landlord reasonably believes that none of
\nthe Tenant Mylar Proposals set forth therein will effect compliance with the law
\nor requirement of public authority in question, the following provisions shall
\napply: (i) Landlord shall not have the right to proceed with the proposed
\ncovering of exterior windows serving the Premises with Mylar as set forth in
\nLandlord’s Mylar Notice; (ii) Landlord shall have the right to proceed to effect
\ncompliance with the law or requirement of public authority in question by means
\nof any of the Tenant Mylar Proposals set forth in Tenant’s Mylar Notice; and
\n(iii) Tenant, within thirty (30) days after written demand, shall pay to
\nLandlord all the incremental costs (if any) incurred by Landlord in effecting
\ncompliance with the law or requirement of public authority in question by means
\nof such Tenant Mylar Proposal (as opposed to effecting such compliance by means
\nof the proposed covering of exterior windows of the Premises with Mylar as set
\nforth in Landlord’s Mylar Notice).<\/p>\n
16.05. During any Option Period (and following the exercise by
\nLandlord of any of its Recapture Options) and during the period of two (2) years
\nprior to the Expiration Date of this lease, Landlord and persons authorized by
\nLandlord may exhibit the Premises (or the applicable portions thereof) during
\nBusiness Hours on Business Days to prospective tenants upon reasonable advance
\nnotice.<\/p>\n
16.06. Landlord reserves the right, at any time, without it
\nbeing deemed a constructive eviction and without incurring any liability to
\nTenant therefor, or affecting or reducing any of Tenant’s covenants and
\nobligations hereunder, to make or permit to be made such alterations, additions
\nand improvements in or to the Building and the fixtures and equipment thereof
\n(but not in or to the Premises, except as expressly authorized by any provision
\nof this lease), as well as in or to the street entrances, doors, halls,
\npassages, elevators, escalators and stairways thereof, and other public parts of
\nthe Building, as Landlord shall deem necessary or desirable, provided, that no
\nsuch change, alteration, addition or improvement shall (a) materially adversely
\naffect (i) access to the Premises, (ii) the size, configuration or utility of
\nany of the Core Lavatories, or (iii) the provision of any of the Building
\nServices, or (b) otherwise affect any of the rights and obligations of Landlord
\nand Tenant that are expressly set forth in this lease.<\/p>\n
16.07. Landlord reserves the right to name the Building and to
\nchange the name or address of the Building at any time and from time to time.
\nNeither this lease nor any use by Tenant shall give Tenant any easement or other
\nright in or to the use of any door, passage, concourse or plaza connecting the
\nBuilding with any subway or any other building or to any public conveniences,
\nand the use of such doors, passages, concourses, plazas and conveniences may
\nupon reasonable prior notice to Tenant (except in the case of emergency), be
\nregulated, in accordance with the provisions of Article 10 hereof, or generally
\ndiscontinued at any time by Landlord.<\/p>\n
16.08. If Tenant shall not be personally present to open and
\npermit an entry into the Premises at any time when for any reason an entry
\ntherein shall be urgently necessary by reason of fire or other emergency,
\nLandlord or Landlord’s agents may forcibly enter the same without rendering
\nLandlord or such agents<\/p>\n
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\n 111
\nliable therefor (so long as Landlord or Landlord’s agents shall exercise
\nreasonable care in respect of Tenant’s Property) and without in any manner
\naffecting the obligations and covenants of this lease.<\/p>\n
16.09. (a) Tenant acknowledges that, as of the date hereof,
\nthe portion of the Building’s ground floor lobby shown hatched on Exhibit M-1
\nattached hereto and made a part hereof, has been dedicated to exclusively
\nserving the space demised to PSI pursuant to its lease in the Building (such
\ndedicated portion of the Building’s ground floor lobby being herein called the
\n“PSI DEDICATED LOBBY”), and that, incident thereto, the PSI Dedicated Lobby may
\nhereafter be physically separated from the remainder of the Building’s ground
\nfloor lobby. Accordingly, neither Tenant nor any Tenant Party, nor any of guests
\nor invitees of Tenant or any Tenant Party, shall have any rights of ingress to
\nor egress from the Premises or the Building (or any part thereof) through the
\nPSI Dedicated Lobby (such ingress and egress to be provided through the other
\nportions of the Building’s ground floor lobby), or any other rights with respect
\nto PSI Dedicated Lobby. Tenant further acknowledges that PSI has exclusive use
\nof one of the Building’s freight elevators and two of the Building’s loading
\ndocks.<\/p>\n
(b) (1) For purposes of this Section 16.09(b), the
\nfollowing terms shall have the following meanings:<\/p>\n
(A) “BANK X ELEVATOR LOBBY” shall mean the
\n portion of the Building’s ground floor lobby shown hatched on Exhibit
\n M-2 attached hereto.<\/p>\n
(B) “BANK X CONTROL PERIOD” shall mean the
\n period commencing on the 47th Floor Commencement Date and ending on the
\n first date that the Premises no longer include all the Initially
\n Demised Premises and the 47th Floor Space; provided, however, that if
\n the Premises no longer include all of such space solely by reason of
\n one or more terminations of this lease in part pursuant to Article 7
\n hereof, then the Bank X Control Period shall not end by reason of such
\n terminations unless and until the same, in the aggregate, result in
\n Recaptured Space on more than two (2) floors of the Building, which
\n prior to such termination, were Premises Floors.<\/p>\n
(C) “NORTH PARTITION LOCATION” shall mean the
\n location within the Bank X Elevator Lobby delineated as such on Exhibit
\n M-3 attached hereto.<\/p>\n
(D) “SOUTH PARTITION LOCATION” shall mean the
\n location within the Bank X Elevator Lobby delineated as such on Exhibit
\n M-3 attached hereto.<\/p>\n
(E) “SECURITY DESK LOCATION” shall mean the
\n location within Building’s ground floor lobby delineated as such on
\n Exhibit M-3 attached hereto.<\/p>\n
(F) “PODIUM LOCATION” shall mean the location
\n within the Bank X Elevator Lobby delineated as such on Exhibit M-3
\n attached hereto.<\/p>\n
(G) “BANK X CONCOURSE ELEVATOR” shall mean the
\n passenger elevator serving the Premises and accessible through the Bank
\n X Elevator Lobby which is delineated as such on Exhibit M-2 attached
\n hereto.<\/p>\n
(2) Tenant, during the Bank X Control Period (as
\nhereinafter defined), shall, subject to the provisions of Section 16.09(b)(3)
\nand (4) below, have the right to control ingress and egress to and from the Bank
\nX Elevator Lobby, and,<\/p>\n
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\n 112
\nincident thereto, to (i) install a movable rope partition in the North Partition
\nLocation, (ii) install a security desk in the Security Desk Location (such
\nsecurity desk being herein called “TENANT’S SECURITY DESK”), and to employ and
\nstation up to two (2) security guards at Tenant’s Security Desk, (iii) install
\none or more telephone and communications cables from Tenant’s Security Desk to
\nthe Premises (by way of a 1-1\/2 inch conduit running from Tenant’s Security Desk
\nto the nearest communications closet on the retail concourse level of the
\nBuilding which can serve the Premises, which 1-1\/2 conduit shall be installed by
\nLandlord, at Tenant’s expense, on or prior to the June 30, 1994, subject to
\ndelays occassioned by one or more Events of Force Majeure and\/or delays
\noccasioned by Tenant), and (iv) to install a podium (not to exceed 6 feet in
\nlength) within the Bank X Elevator Lobby at the Podium Location and to employ
\nand station an additional security guard at such podium. Landlord, throughout
\nthe Bank X Control Period, shall (i) maintain a partition in the South Partition
\nLocation separating the Bank X Elevator Lobby from the PSI Dedicated Lobby, and
\n(ii) furnish electricity to Tenant’s Security Desk at a level sufficient to
\nallow for the operation of up to two (2) personal computers to be located on
\nTenant’s Security Desk (which electricity shall be furnished through one or more
\nelectrical conduits which shall be installed by Landlord, at Tenant’s expense,
\nwhich installation shall be completed by Landlord on or prior to the June 30,
\n1994, subject to one or more Events of Force Majeure and\/or delays occasioned by
\nTenant). All installations made pursuant to this Section 16.09(b) shall be done
\nsubject to and in accordance with the provisions of Article 11 hereof, and, for
\npurposes thereof, such installations shall be deemed Exterior Material
\nAlterations and Pre-Authorized Alterations.<\/p>\n
(3) The rights granted to Tenant pursuant to the
\nforegoing provisions of this Section 16.09(b) during the Bank X Control Period
\nshall be subject to and upon the following provisions:<\/p>\n
(A) Upon the expiration of the Bank X Control
\nPeriod, Tenant shall immediately remove Tenant’s Security Desk and any podium,
\nrope partition or cable then maintained by Tenant (as well as cease any other
\nindicia of control over ingress and egress to and from the Bank X Elevator
\nLobby), and restore the affected areas of the Bank X Elevator Lobby and the
\nSecurity Desk Location to their condition prior to such installation, ordinary
\nwear and tear excepted.<\/p>\n
(B) Landlord and any Landlord Party shall have
\nthe absolute right to enter and\/or pass through the Bank X Elevator Lobby at any
\ntime or times for any purpose whatsoever (including without limitation (i) to
\nenter the Premises pursuant to the terms of this lease or (ii) any of the
\npurposes set forth in Section 16.03 hereof, applied mutatis mutandis, to the
\nBank X Elevator Lobby). In addition, persons authorized by Landlord shall have
\nthe right to enter and\/or pass through the Bank X Elevator Lobby (x) for the
\npurpose of entering the Premises pursuant to the terms of this lease, or (y)
\notherwise for the purposes set forth in Section 16.03 hereof, applied mutatis
\nmutandis, to the Bank X Elevator Lobby.<\/p>\n
(C) Tenant shall exercise the rights granted to
\nit under this Section 16.09(b) during the Bank X Control Period in a manner so
\nas to comply with all laws and requirements of public authorities relating
\nthereto, and, notwithstanding anything to the contrary contained in Article 8
\nhereof, shall comply with all laws or requirements of public authorities to the
\nextent that the need for compliance therewith arises out of Tenant’s exercise of
\nany of its rights under this Section 16.09(b). In addition, Tenant shall
\nexercise the rights granted to it under this Section 16.09(b) in a manner which
\nwill not violate Landlord’s union contracts affecting the Real<\/p>\n
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\n 113
\nProperty, or create any work stoppage, picketing, labor disruption or dispute or
\nany other interference (other than de minimis interference) with the operation
\nof the Building. The provisions of this Section 16.09(b)(3)(C) shall not be
\ndeemed to limit Tenant’s obligations under any other provision of this lease.<\/p>\n
(D) At all times during the Bank X Control
\nPeriod, (i) Tenant’s Security Desk shall be a desk of the same quality, type,
\ncolor and style as the security desk(s) then maintained by Landlord in the
\nBuilding’s ground floor lobby, and (ii) any rope partition or podium shall be of
\na quality, type, color and style which is consistent with the remainder of the
\nBuilding’s ground floor lobby. Tenant, prior to installing Tenant’s Security
\nDesk in the Security Desk Location or any rope partition, podium or cable in the
\nBank X Elevator Lobby, shall obtain Landlord’s written consent thereto (which
\nconsent shall not be unreasonably withheld, provided, that the same are
\nconsistent with the first sentence of this Section 16.09(b)(3)(D)). Tenant shall
\nperform any such installation consistent with the applicable provisions of
\nArticle 11 hereof. Tenant, throughout any Bank X Control Period, shall maintain
\nTenant’s Security Desk and any rope partition, podium or cable in good order and
\nrepair.<\/p>\n
(E) The rights granted to Tenant under this
\nSection 16.09(b) shall in no event be construed to grant to, or create for,
\nTenant any leasehold or any other similar interest in the Bank X Elevator Lobby
\nor the Security Desk Location during any period, it being understood that
\nTenant’s rights in respect of the Bank X Elevator Lobby and the Security Desk
\nLocation shall be only as expressly provided herein. Without limiting the
\ngenerality of the foregoing, Tenant shall have no right to make any Alterations
\n(or otherwise place any property) in (i) the Security Desk Location other than
\nthe installation of Tenant’s Security Desk as expressly authorized above, or
\n(ii) the Bank X Elevator Lobby, other than the installation of rope partition
\nand podium as expressly authorized above. In no event shall anything contained
\nin this Section 16.09(b) ever be deemed to grant Tenant any rights, of any kind
\nor nature, outside of the Bank X Elevator Lobby and the Security Desk Location.<\/p>\n
(4) If, at anytime during the Bank X Control Period,
\nany Landlord Occupant (as hereinafter defined) shall lease or otherwise occupy
\nany leasable area of the Building which is serviced by one or more passenger
\nelevators accessible only through the Bank X Elevator Lobby, then Tenant shall
\nallow each such Landlord Occupant, its subtenants and its or their employees,
\ncontractors, visitors, guests, licensees and invitees access to and through the
\nBank X Elevator Lobby (24 hours a day, 7 days a week), for ingress and egress,
\non the same basis and subject only to the same security requirements as those
\nimposed by Tenant upon its employees, contractors, visitors, guests, licensees
\nand invitees, as the case may be; provided, further, that, in all events, any
\nsecurity requirement imposed upon any Landlord Occupant, its subtenants or its
\nor their employees, contractors, visitors, guests, licensees or invitees shall
\nbe reasonable and customary (and at no charge to any such persons). Landlord, at
\nits option, may elect to submit any dispute as whether any security requirement
\nimposed upon any Landlord Occupant, its subtenants or its or their employees,
\ncontractors, visitors, guests, licensees or invitees is reasonable and customary
\nto arbitration in accordance with the provisions of Article 40 (in which
\narbitration the sole issue to be determined shall be whether such security
\nrequirement is reasonable and customary). As used herein, the term “LANDLORD
\nOCCUPANT” shall mean any of Landlord, any Condominium Party or any tenant or
\nsubtenant of Landlord or any Condominium Party, or any other party claiming by
\nthrough or under Landlord or any Condominium<\/p>\n
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\n 114
\nParty; excluding, however, Tenant and Tenant’s subtenants (other than any of
\nTenant’s subtenants which are also direct tenants or direct subtenants of
\nLandlord).<\/p>\n
(5) (A) Tenant acknowledges that the Bank X Concourse
\nElevator is an essential means of travel for disabled persons between the retail
\nconcourse (i.e. the first level below the Building lobby level) and the Building
\nlobby. Accordingly, during the Bank X Control Period (both during and outside of
\nBusiness Hours), Tenant shall permit disabled persons (and persons assisting
\ndisabled persons) desiring to travel between the Building lobby and the retail
\nconcourse access through the Bank X Elevator Lobby to or from the Bank X
\nConcourse Elevator. During the Bank X Control Period, the Bank X Concourse
\nElevator shall serve the retail concourse only to provide the access required
\nunder this Section 16.09(b)(5) for disabled persons (and persons assisting
\ndisabled persons).<\/p>\n
(B) In order to allow Tenant to maintain
\nsecurity for the Premises while permitting the access required under Section
\n16.09(b)(5)(A) above during Business Hours, Landlord and Tenant, during Business
\nHours, shall follow the procedures set forth on Exhibit Z attached hereto or
\nsuch alternative procedures as shall be proposed by Landlord and approved by
\nTenant; it being agreed that Tenant’s approval of any such alternative
\nprocedures shall not be unreasonably withheld unless the proposed alternative
\nprocedures (x) afford Tenant less security than the procedures set forth on
\nExhibit Z attached hereto, or (y) result in the Bank X Concourse Elevator being
\nunavailable for a greater duration of time during Business Hours than is the
\ncase under the procedures set forth on Exhibit Z attached hereto.
\nNotwithstanding the foregoing provisions of this Section 16.09(b)(5), if, and to
\nthe extent, that any laws or requirements of public authorities (I) shall, at
\nanytime, require changes to the then applicable procedures, then Landlord and
\nTenant shall promptly implement such changes to the procedures so as to fully
\ncomply with such law or requirement, even if the procedures as changed (x)
\nafford Tenant less security than the procedures set forth on Exhibit Z attached
\nhereto, or (y) result in the Bank X Concourse Elevator being unavailable for a
\ngreater duration of time during Business Hours than is the case under the
\nprocedures set forth on Exhibit Z attached hereto, or (II) shall, at anytime,
\nrequire that elevator access between the retail concourse and the Building lobby
\nbe available without any procedures for disabled persons (i.e., available
\nwithout their being required to obtain the assistance of any Building
\npersonnel), then, for the remainder of the Bank X Control Period, then Landlord
\nand Tenant shall have no further obligation to comply with any procedures (but
\nLandlord, at Tenant’s request, shall cause the Bank X Concourse Elevator, during
\nthe balance of the Bank X Control Period, to serve only the retail concourse and
\nthe Building lobby during Business Hours); it being further agreed that in any
\ncase that either the provisions of clause (I)(x) of this sentence or the
\nprovisions of clause (II) of this sentence are applicable, Tenant, for the
\nbalance of the Bank X Control Period, shall be entitled to employ an additional
\nsecurity guard (i.e., a security guard in addition to those to which Tenant is
\nentitled to employ pursuant to Section 16.09(b)(2) hereof), which additional
\nsecurity guard shall be stationed within the Bank X Elevator Lobby, the Bank X
\nConcourse Elevator or the Premises. So long as security guards are used under
\nthe then existing aforementioned procedures, Landlord and Tenant shall each
\nemploy a security guard at all times so that the same may be followed. Landlord,
\nat its expense, shall install and maintain any cameras, elevator controls and
\nother equipment required in connection with such procedures.<\/p>\n
(C) No failure by Landlord to comply the
\nprocedures referred to in Section 16.09(b)(5)(B), and no failure by Landlord to
\nperform any of its other obligations under<\/p>\n
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\n 115
\nSection 16.09(b)(5)(B), shall entitle Tenant to deprive disabled persons of
\naccess through the Bank X Elevator Lobby to or from the Bank X Concourse
\nElevator. Tenant sole remedies in the event of any failure by Landlord to so
\ncomply or perform shall be (i) an action for damages against Landlord in the
\namount of the incremental costs incurred by Tenant in maintaining, or
\nendeavoring to maintain, its security while permitting the access required under
\nSection 16.09(b)(5)(A) above, by reason of Landlord’s failure to so comply or
\nperform, and\/or (ii) an action for specific performance or injunction to compel
\nLandlord to so comply or perform.<\/p>\n
(6) If, at anytime and from time to time during
\nthe Bank X Control Period, Tenant, by written notice to Landlord, shall request
\nthat the hi-rise passenger elevators which serve the Premises Floors pursuant to
\nSection 15.05 hereof be reprogrammed such that (i) one or more of such passenger
\nelevators stop first on the 50th floor of the Building, (ii) certain of such
\npassenger elevators will stop only on certain of the Premises Floors, or (iii)
\nany previously effected reprogramming pursuant to this sentence be reversed,
\nthen Landlord, at Tenant’s expense, shall re-program such passenger elevators,
\nso that the same shall serve the Premises Floors in accordance with Tenant’s
\nrequest for the balance of the Bank X Control Period; provided, however, that
\n(A) the Bank X Concourse Elevator shall always serve the retail concourse level
\nof the Building for the benefit of disabled persons as provided in Section
\n16.09(b)(5) above, (B) no Premises Floor (or any other floor of the Building
\nbetween the 41st floor thereof and the 50th floor thereof) shall, by reason of
\nsuch re-programming, be served by less than four (4) such passenger elevators
\nduring Business Hours and less than three (3) such passenger elevators outside
\nof Business Hours, (C) no floor of the Building between the 41st floor thereof
\nand the 50th floor thereof on which there is located any Landlord Occupant
\nshall, by reason of such re- programming, receive passenger elevator service at
\na level below the average level of passenger elevator service provided to the
\nPremises Floors, and (D) upon the expiration of the Bank X Control Period,
\nLandlord, at Tenant’s expense, may reverse any re-programming done pursuant to
\nthis Section 16.09(b)(6).<\/p>\n
16.10. Tenant, and its permitted subtenants, may have a number
\nof listings in any Building directory maintained by Landlord in the Building’s
\nground floor lobby (other than in the PSI Dedicated Lobby) equal to (x) Tenant’s
\nTax Share of the total number of listing spaces\/slots on such directory if such
\ndirectory is manual (i.e., not computerized) or (y) two hundred (200) listing
\nspace\/slots on such directory if such directory is computerized. Landlord, from
\ntime to time, shall make such changes in the listings as Tenant shall request.<\/p>\n
16.11. (a) In order to facilitate Tenant obtaining telephone,
\nfiber optic and\/or cable television service for the Premises, Tenant, subject to
\nand in accordance with the provisions of Article 11 hereof, shall have the
\nright, from time to time, to install telecommunications conduits from the street
\nto the Premises Floors, which telecommunications conduits shall run vertically
\nthrough Tenant’s Stairwell B Enclosure and\/or Tenant’s Stairwell E Enclosure,
\nand, to the extent any of such conduits need to run horizontally, the same shall
\nbe run in locations reasonably designated by Landlord; provided, however, that
\nTenant’s right to install any such telecommunications conduit shall be
\nconditioned upon (i) Tenant having theretofore installed, or Tenant
\ncontemporaneously therewith installing, either or both of Tenant’s Stairwell B
\nEnclosure and Tenant’s Stairwell E Enclosure pursuant to Section 16.14 hereof,
\nand (ii) there being sufficient space within Tenant’s Stairwell B Enclosure
\nand\/or Tenant’s Stairwell E Enclosure to install such telecommunications
\nconduit. Such conduits are herein called “TENANT’S INITIAL COMMUNICATIONS
\nCONDUITS”.<\/p>\n
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\n 116
\n (b) If, at anytime during the term of this lease,
\nTenant shall require or desire additional telecommunications conduits in
\naddition to Tenant’s Initial Communications Conduits, then, so long as the
\nPremises shall then consist of at least four (4) Full Premises Floors, Tenant,
\nsubject to and in accordance with the provisions of Article 11 hereof, shall
\nhave the right, from time to time, to install additional telecommunication
\nconduits, which conduits shall run vertically through Tenant’s Section 41.09
\nEnclosures (as hereinafter defined), and, to the extent any of such conduits
\nneed to run horizontally, the same shall be run in locations reasonably
\ndesignated by Landlord; provided, however, that Tenant’s right to install any
\nsuch telecommunications conduit shall be conditioned upon (i) Tenant having
\ntheretofore installed, or Tenant contemporaneously therewith installing Tenant’s
\nSection 41.09 Enclosures pursuant to Section 16.14 hereof, and (ii) there being
\nsufficient space within Tenant’s Section 41.09 Enclosures to install such
\ntelecommunications conduit. Such conduits are herein called “TENANT’S
\nSUPPLEMENTAL COMMUNICATIONS CONDUITS”.<\/p>\n
(c) The work required to install either Tenant’s
\nInitial Communications Conduits or Tenant’s Supplemental Communications Conduits
\nis herein called the “TENANT’S COMMUNICATIONS CONDUIT WORK”. Tenant’s
\nCommunications Conduit Work shall be deemed Exterior Material Alterations and,
\nsubject to the foregoing provisions of this Section 16.11, Pre-Authorized
\nAlterations under Article 11 hereof.<\/p>\n
16.12. Tenant, throughout the term of this lease, shall have
\nthe right to utilize the vents currently located in and serving the Premises for
\nthe purposes for which the same are designed.<\/p>\n
16.13. (a) Landlord, throughout the term of this lease, shall
\nnot install, erect or maintain, or allow to be installed, erected or maintained,
\neither (i) any sign in the ground floor lobby of the Building which faces toward
\nthe Building’s north (i.e., Water Street) side entrance, or (ii) any sign on the
\nBuilding’s north (i.e., Water Street) facade below the fifth (5th) floor of the
\nBuilding; unless, in either event, Landlord grants Tenant the right to install,
\nerect or maintain a sign of substantially the same size and character (to the
\naforementioned sign) in a substantially equivalent location (to the location in
\nwhich the aforementioned sign is so installed, erected or maintained), which
\nsign installed, erected or maintained by Tenant would be installed, erected and
\nmaintained pursuant to Article 11 and 13 hereof and, in all events, would bear
\nonly Tenant’s name and\/or logo. The term “SIGN”, as used in this Section
\n16.13(a), shall mean any sign bearing a company’s name, initials or logo (even
\nif the Building be named for such company); but shall not include names or other
\nlettering on a Building directory.<\/p>\n
(b) Notwithstanding the foregoing provisions of Section
\n16.13(a) above, if, at anytime during the term of this lease, either (i) Tenant
\nshall not be Original Tenant, (ii) the Premises shall no longer include at least
\nfive (5) Full Premises Floors (as defined in Article 31 hereof), or (iii)
\nOriginal Tenant, together with Affiliates of Original Tenant, shall not be in
\nactual occupancy of at least 175,000 rentable square feet of space in the
\nPremises, then, in either such event, (x) the provisions of Section 16.13(a)
\nabove shall no longer apply (and, accordingly, there shall longer be
\nrestrictions on Landlord’s right to install, erect or maintain any signs or to
\nallow the same to be installed, erected or maintained), and (y) if Tenant shall
\nhave theretofore installed, erected and maintained a sign bearing its name
\nand\/or logo pursuant to rights granted to Tenant pursuant to the provisions of
\nSection 16.13(a) above, then Tenant shall promptly remove such sign from the
\nBuilding and restore the<\/p>\n
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\napplicable areas of the Building to their condition prior to the installation or
\nerection thereof.<\/p>\n
16.14. (a) For purposes of this Section 16.14, the
\nfollowing terms shall have the following meanings:<\/p>\n
The “STAIRWELL B ENCLOSURE LOCATION” shall mean
\nthe location on each floor of the Building (being near the Building’s internal
\nstairwell known as “Stairwell B”) which is shown hatched on Exhibit T-1 attached
\nhereto.<\/p>\n
The “STAIRWELL E ENCLOSURE LOCATION” shall mean
\nthe location on each floor of the Building (being near the Building’s internal
\nstairwell known as “Stairwell E”) which is shown hatched on Exhibit T-2 attached
\nhereto.<\/p>\n
(b) Tenant shall, subject to and in accordance with the
\nprovisions of Article 11 hereof, have the right, from time to time, to:<\/p>\n
(1) install one or more enclosures within the
\n Stairwell B Enclosure Location to house all the conduits to be
\n installed in such enclosures pursuant to Section 14.02(c) hereof,
\n Section 16.11(a) hereof and Article 41 hereof, it being understood and
\n agreed that (i) no such enclosure, or any part thereof (including
\n without limitation any exterior casing thereof and doors thereto when
\n closed), shall extend outside of the Stairwell B Enclosure Location,
\n and (ii) each such enclosure (inclusive of the doors thereto) shall
\n comply with all laws and requirements of public authorities, and shall
\n not cause any surrounding area to not comply with all laws and
\n requirements of public authorities (the enclosure or enclosures
\n installed pursuant to this Section 16.14(b)(1) are herein collectively
\n called “TENANT’S STAIRWELL B ENCLOSURE”); and<\/p>\n
(2) install one or more enclosures within the
\n Stairwell E Enclosure Location to house all the conduits to be
\n installed in such enclosures pursuant to Section 14.02(c) hereof,
\n Section 16.11(a) hereof and Article 41 hereof, it being understood and
\n agreed that (i) no such enclosure, or any part thereof (including
\n without limitation any exterior casing thereof and any doors thereto
\n when closed), shall extend outside of the Stairwell E Enclosure
\n Location, and (ii) each such enclosure (inclusive of the doors thereto)
\n shall comply with all laws and requirements of public authorities, and
\n shall not cause any surrounding area to not comply with all laws and
\n requirements of public authorities (the enclosure or enclosures
\n installed pursuant to this Section 16.14(b)(2) are herein collectively
\n called “TENANT’S STAIRWELL E ENCLOSURE”).<\/p>\n
The work required to install and supplement Tenant’s Stairwell B Enclosure
\nand\/or Tenant’s Stairwell E Enclosure is herein called “TENANT’S ENCLOSURE
\nWORK”. For purposes of applying Article 11 hereof to Tenant’s Enclosure Work,
\nthe same shall be deemed Exterior Material Alterations and Pre-Authorized
\nAlterations.<\/p>\n
(c) If Tenant installs Tenant’s Stairwell B Enclosure
\nand\/or Tenant’s Stairwell E Enclosure, then the following provisions shall
\napply: (i) Landlord shall not grant any other tenant or occupant of the Building
\nentry into either Tenant’s Stairwell B Enclosure or Tenant’s Stairwell E
\nEnclosure (it being understood that only Landlord and Tenant shall have a key to
\neach door providing entry into Tenant’s Stairwell B Enclosure and Tenant’s
\nStairwell E Enclosure); and (ii) except in emergencies, Landlord, prior to
\nentering either Tenant’s Stairwell B Enclosure or Tenant’s Stairwell E
\nEnclosure, shall give Tenant notice thereof (which notice, at Landlord’s option,
\nmay be oral notice to Tenant’s operations desk (which shall be<\/p>\n
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\nmanned 24 hours a day) given immediately prior to such entry), and, in any such
\ncase, Tenant, at Tenant’s expense, shall have the right to have Tenant’s
\nrepresentative accompany Landlord throughout the period of Landlord’s entry.
\nTenant shall have access to each of Tenant’s Stairwell B Enclosure and Tenant’s
\nStairwell E Enclosure solely for purposes of performing (A) Tenant’s Enclosure
\nWork and subsequent permitted Alterations within either Tenant’s Stairwell B
\nEnclosure or Tenant’s Stairwell E Enclosure (which access shall be subject to
\nthe provisions of Article 11 hereof, including without limitation the provisions
\nof Section 11.03(c) hereof), or (B) maintenance, repairs and replacements to
\nTenant’s Stairwell B Enclosure, Tenant’s Stairwell E Enclosure or any Tenant
\nImprovements located within Tenant’s Stairwell B Enclosure, Tenant’s Stairwell E
\nEnclosure (which access shall be subject to the provisions of Article 13 hereof,
\nincluding without limitation the provisions of Section 13.01(c)(1) hereof).<\/p>\n
16.15. Tenant, for so long as the Premises shall include at
\nleast four (4) Full Premises Floors, shall have the right to utilize, for
\nroutine access amongst the Premises Floors, either or both of the Designated
\nFire Stairwells (as hereinafter defined) and, incident thereto, shall have the
\nright to install either or both a card-key access system and an alarm system
\nwith respect to the doors providing access between the Premises and the
\nDesignated Fire Stairwells; provided, however, that (i) Tenant’s right to
\nutilize the Designated Fire Stairwells shall be non-exclusive, (ii) Tenant’s
\nright to utilize the Designated Fire Stairwells, or to install any card-key
\naccess system or alarm system, shall be subject to the same being in compliance
\nwith all laws and requirements of public authorities (and, without limiting the
\ngenerality of the foregoing, Tenant (x) shall recognize and maintain the legally
\nrequired number of re-entry floors, and (y) shall not install any card-key
\nsystem or any access inhibiting alarm system on any doors between the Premises
\nand the Designated Fire Stairwells on any re-entry floors), (iii) Tenant’s right
\nto utilize the Designated Fire Stairwells, or to install any card-key access
\nsystem or alarm system, shall be subject and subordinate to Landlord’s right to
\ncause the balance of the Building to be in compliance with laws and requirements
\nof public authorities, and (iv) Tenant shall (x) pay to, or reimburse Landlord,
\nall incremental costs and expenses incurred by Landlord in connection with, or
\narising out of, Tenant’s use of the Designated Fire Stairwells, including
\nwithout limitation incremental cleaning and insurance costs, and (y) in
\naccordance with the provisions of Section 18.01 hereof (applied mutatis
\nmutandis), shall indemnify and hold harmless Landlord from and against any
\nclaims to the extent the same arise out of Tenant’s use of the Designated Fire
\nStairwells. As used herein, the term “DESIGNATED FIRE STAIRWELLS” shall mean
\neither or both of the fire stairwells of the Building delineated as Stairwell C
\nand Stairwell D on Exhibit T-3 attached hereto.<\/p>\n
16.16. Tenant, throughout the term of this lease, shall have
\nthe non-exclusive right to utilize the telephone closets located on the Premises
\nFloors, for purposes of running communications conduits among Premises Floors.<\/p>\n
ARTICLE 17<\/p>\n
Partnership Tenant<\/p>\n
17.01. If Tenant is a partnership (or is comprised of two (2)
\nor more persons, individually and\/or as co-partners of a partnership) or if
\nTenant’s interest in this lease shall be assigned to a partnership (or to two
\n(2) or more persons, individually and\/or as co-partners of a partnership)
\npursuant to this article (any such partnership and such persons are referred to
\nin this Section 17.01 as “PARTNERSHIP TENANT”), the following<\/p>\n
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\nprovisions of this section shall apply to such Partnership Tenant: (a) the
\nliability of each of the parties comprising Partnership Tenant (other than
\nlimited partners) shall be joint and several, (b) each of the parties comprising
\nPartnership Tenant hereby consents in advance to, and agrees to be bound by, any
\nwritten instrument which may hereafter be executed by Partnership Tenant
\nchanging, modifying or discharging this lease, in whole or in part, or
\nsurrendering all or any part of the Premises to Landlord or renewing or
\nextending this lease and by any notices, demands, requests or other
\ncommunications which may hereafter be given by Partnership Tenant, (c) any
\nbills, statements, notices, demands, requests or other communications given or
\nrendered to Partnership Tenant shall be deemed given or rendered to Partnership
\nTenant and to all such parties and shall be binding upon Partnership Tenant and
\nall such parties, and (d) if Partnership Tenant shall admit new general
\npartners, all of such new general partners shall, by their admission to
\nPartnership Tenant, be deemed to have assumed performance of all of the terms,
\ncovenants and conditions of this lease on Tenant’s part to be observed and
\nperformed.<\/p>\n
17.02. (a) Notwithstanding anything to the contrary contained
\nin Section 17.01 above, except as provided in Section 17.02(b), no general or
\nlimited partner of Original Tenant shall have any personal liability under this
\nlease and any judgment hereunder or related hereto taken or rendered against
\nOriginal Tenant shall be enforceable only against the property of Original
\nTenant.<\/p>\n
(b) Notwithstanding the provisions of Section 17.02(a)
\nabove, (1) if at any time Original Tenant (x) shall dissolve (other than
\npursuant to, or as a result of, insolvency proceedings) and (y) shall distribute
\nits assets without adequately providing for any and all of its obligations and
\nliabilities under this lease, then all persons who were general partners of
\nOriginal Tenant immediately prior to the dissolution shall be personally and
\njointly and severally liable to Original Tenant, for the benefit of Landlord, to
\nthe extent of any loss, cost, damage or injury which Landlord may suffer as a
\nresult of the failure to make adequate provision for such obligations and
\nliabilities, and (2) the provisions of Section 17.02(a) shall not relieve any
\ngeneral or limited partner of Original Tenant from any obligation to restore to
\nOriginal Tenant any distributions of cash, property or other assets by Original
\nTenant made to such partner which (x) were made at any time when the distributor
\nwas insolvent or (y) resulted in the distributor’s becoming insolvent. For
\npurposes of this lease, Original Tenant shall be “insolvent” if (a) it is
\ngenerally unable to pay its debts and other liabilities as they become due or
\n(b) the sum of its debts is greater than all of its property at a fair valuation
\n(taking into account this lease and the liabilities of the tenant hereunder).<\/p>\n
ARTICLE 18<\/p>\n
Indemnification and Non-Liability<\/p>\n
18.01. Tenant shall indemnify and hold harmless Landlord and
\nall Landlord Parties from and against any and all claims (to the extent in
\nexcess of any sums reimbursed by insurance or, which would have been so
\nreimbursed if Landlord had maintained the insurance required to be maintained by
\nit hereunder) to the extent that the same arises from (a) the conduct or
\nmanagement of the Premises or of any business therein, or any condition created
\n(other than by Landlord or any Landlord Party or any contractor of Landlord or
\nany Landlord Party) in, at or upon the Premises, (b) the negligence or willful
\nmisconduct of Tenant or any Tenant Party, or of any contractor of Tenant or any
\nTenant Party, (c) any accident, injury or damage whatever (except<\/p>\n
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\nto the extent caused by any negligence or willful misconduct of Landlord or any
\nLandlord Party or any contractor of Landlord or any Landlord Party) occurring
\nin, at or upon the Premises, or (d) any breach or default by Tenant in the full
\nand prompt payment and performance of Tenant’s obligations under this lease;
\ntogether, subject to the provisions of this Section 18.01, with all costs,
\nexpenses and liabilities incurred in or in connection with each such claim or
\nany action or proceeding brought thereon, including, without limitation, all
\nreasonable attorneys’ fees and expenses. If any such claim is asserted against
\nLandlord and\/or any Landlord Party, Landlord shall give Tenant prompt notice
\nthereof. If Tenant shall, in good faith, believe that such claim is or may not
\nbe within the scope of the indemnity set forth in this Section then, pending
\ndetermination of that question, Tenant shall not be deemed to be in default
\nunder this lease by reason of its failure or refusal to indemnify and hold
\nharmless Landlord or any Landlord Party therefrom or to pay such costs, expenses
\nand liabilities, but if it shall be finally determined by a court of competent
\njurisdiction that such claim was within the scope of the indemnity set forth in
\nthis Section then Tenant shall be liable for any judgement or reasonable
\nsettlement or any reasonable legal fees incurred by the party entitled to
\nindemnity hereunder. If the issuer of any insurance policy maintained by Tenant
\nshall assume the defense of any claim then Landlord shall permit such insurance
\ncarrier to defend the claim with its counsel and (x) neither Landlord nor any
\nLandlord Party shall settle such claim without the consent of the insurance
\ncarrier (unless such settlement would relieve Landlord or such Landlord Party of
\nall liability for which Tenant or its insurance carrier may be liable
\nhereunder), (y) Landlord and all Landlord Parties shall reasonably cooperate, at
\nTenant’s expense, with the insurance carrier in its defense of any such claim,
\nand (z) Tenant shall not be liable for the costs of any separate counsel
\nemployed by Landlord or any Landlord Party.<\/p>\n
18.02. Landlord shall indemnify and hold harmless Tenant and
\nall Tenant Parties from and against any and all claims (to the extent in excess
\nof any sums reimbursed by insurance or, which would have been so reimbursed if
\nTenant had maintained the insurance required to be maintained by it hereunder)
\nto the extent that the same arises from (a) the negligence or willful misconduct
\nof Landlord or any Landlord Party, or of any contractor of Landlord or any
\nLandlord Party, or (b) any breach or default by Landlord in the full and prompt
\npayment and performance of Landlord’s obligations under this lease; together,
\nsubject to the provisions of this Section 18.02, with all costs, expenses and
\nliabilities incurred in or in connection with each such claim or any action or
\nproceeding brought thereon, including, without limitation, all attorneys’ fees
\nand expenses. If any such claim is asserted against Tenant and\/or any Tenant
\nParty, Tenant shall give Landlord prompt notice thereof. If Landlord shall, in
\ngood faith, believe that such claim is or may not be within the scope of the
\nindemnity set forth in this Section then, pending determination of that
\nquestion, Landlord shall not be deemed to be in default under this lease by
\nreason of its failure or refusal to indemnify and hold harmless Tenant or any
\nTenant Party therefrom or to pay such costs, expenses and liabilities, but if it
\nshall be finally determined by a court of competent jurisdiction that such claim
\nwas within the scope of the indemnity set forth in this Section then Landlord
\nshall be liable for any judgement or reasonable settlement or any reasonable
\nlegal fees incurred by the party entitled to indemnity hereunder. If the issuer
\nof any insurance policy maintained by Landlord shall assume the defense of any
\nclaim then Tenant shall permit such insurance carrier to defend the claim with
\nits counsel and (x) neither Tenant nor any Tenant Party shall settle such claim
\nwithout the consent of the insurance carrier (unless such settlement would
\nrelieve Tenant or such Tenant Party of all liability for which Landlord or its
\ninsurance carrier may be liable hereunder), (y) Tenant and all Tenant Parties
\nshall<\/p>\n
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\nreasonably cooperate, at Landlord’s expense, with the insurance carrier in its
\ndefense of any such claim, and (z) Landlord shall not be liable for the costs of
\nany separate counsel employed by Tenant or any Tenant Party.<\/p>\n
18.03. Notwithstanding any provisions of this lease to the
\ncontrary, neither Landlord nor any Landlord Party shall be liable to Tenant, and
\nneither Tenant nor any Tenant Party shall be liable to Landlord, for
\nconsequential damages of any kind or nature (including without limitation
\nconsequential damages in respect of (i) any loss of use of the Premises or any
\nTenant’s Improvements or otherwise, or (ii) any loss of use of, or rents from,
\nthe Building or any part thereof) in any event whatsoever, even if arising from
\nany act, omission or negligence of such party or from the breach by such party
\nof its obligations under this lease. Nothing in this Section 18.03 shall ever be
\ndeemed to relieve Tenant of any obligation to pay Fixed Rent and Additional
\nCharges hereunder.<\/p>\n
ARTICLE 19<\/p>\n
Damage or Destruction<\/p>\n
19.01. If the Building or the Premises shall be partially or
\ntotally damaged or destroyed by fire or other casualty, then, unless this lease
\nis terminated as hereinafter provided in this Article 19, the following
\nprovisions shall apply:<\/p>\n
(a) Landlord shall repair the damage to and restore and
\nrebuild the Base Building (inclusive of the Base Building Premises Components)
\nto a condition which is substantially the same condition as (or to a better
\ncondition than) the condition of the same immediately prior to the fire or other
\ncasualty; excluding, however, (1) those portions of the Base Building which do
\nnot affect, or affect only to a de minimis extent, (i) Tenant’s use and
\noccupancy of the Premises, (ii) access to the Premises, (iii) the provision of
\nBuilding Services to the Premises, and (iv) Tenant’s ability to perform
\nAlterations which would otherwise be permitted hereunder, and (2) in all events,
\nTenant’s Improvements and Tenant’s Property; all such repair, restoration and
\nrebuilding work being herein called the “LANDLORD RESTORATION WORK”. Landlord
\nshall commence the Landlord Restoration Work on or in respect of each Premises
\nFloor with due diligence after the Landlord Restoration Start Date (as
\nhereinafter defined) for such Premises Floor and, subject to Events of Force
\nMajeure, shall prosecute the same to completion with diligence and continuity.<\/p>\n
(b) Tenant may, but shall not be required to, perform
\nthe Tenant Restoration Work (as hereinafter defined); provided, however, that
\nTenant shall be required to remove all debris, and to remove or clean or repair,
\nas it shall elect, any or all Tenant’s Improvements, but shall not be required
\nto replace any Tenant’s Improvements so removed. As used herein, the “TENANT
\nRESTORATION WORK” shall mean all the repairs, restoration and rebuilding
\nrequired to restore the Tenant’s Improvements to their condition immediately
\nprior to the fire or other casualty. All Tenant Restoration Work shall be deemed
\nAlterations for the purpose of Article 11, and Tenant, to the extent it is
\nrequired or elects to perform the Tenant Restoration Work, shall do so in
\naccordance with the provisions thereof, provided, however, that Landlord’s
\napproval of the plans and specifications therefor shall not be required to the
\nextent the Tenant Restoration Work consists of restoring the same Tenant’s
\nImprovements which were damaged or destroyed (unless the same were made in
\nviolation of this lease). Tenant shall commence so much of the Tenant
\nRestoration Work as it shall be required by the provisions of this Section
\n19.01(b) to perform on or in<\/p>\n
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\nrespect of each Premises Floor promptly after the Tenant Restoration Start Date
\n(as hereinafter defined) for such Premises Floor, and, subject to Events of
\nForce Majeure, shall prosecute the same to completion with diligence and
\ncontinuity. In addition and in all events, Tenant shall move or remove from the
\nPremises, as soon as it is feasible to do so, such salvageable Tenant’s
\nImprovements and Tenant’s Property as may be reasonably designated by Landlord
\nas necessary for Landlord to perform the Landlord Restoration Work.<\/p>\n
(c) (1) The “LANDLORD RESTORATION START DATE”, for any
\nPremises Floor, shall mean the date ten (10) days after the date that Landlord
\nshall first have knowledge of the damage or destruction giving rise to the need
\nfor the Landlord Restoration Work on or in respect of such Premises Floor;
\nprovided, however, that (I) in any case where Landlord is required to designate
\nan Expert (as hereinafter defined) pursuant to Section 19.03 hereof, the
\n“Landlord Restoration Start Date” for any Premises Floor shall not occur prior
\nto the date that Tenant receives a statement from the Expert setting forth the
\nSection 19.03 Estimated Period (as hereinafter defined) (or, if the Section
\n19.03 Estimated Period is longer than nine (9) months, then prior to the date
\nthat is twenty (20) Business Days after Tenant’s receipt of such statement), and
\n(II) in any case where Landlord designates an Expert pursuant to Section 19.04
\nhereof, the “Landlord Restoration Start Date” for any Premises Floor shall not
\noccur until the date that Tenant receives a statement from the Expert setting
\nforth the Section 19.04 Estimate (as hereinafter defined) (or, if, by reason of
\nthe Section 19.04 Estimate, Landlord shall have a right to terminate this lease
\npursuant to Section 19.04, the first date that Landlord no longer has such
\ntermination right). Notwithstanding the foregoing, if, with respect to any fire
\nor other casualty, Tenant shall notify Landlord that Tenant is waiving any right
\nto terminate this lease that it might have or come to have under Section
\n19.03(a)(2), then, from and after the date of such notice, clause (I) of this
\nSection 19.01(c)(1) and clause (I) of Section 19.01(c)(2) shall each be
\ndisregarded with respect to such fire or other casualty.<\/p>\n
(2) The “TENANT RESTORATION START DATE”, for any
\nPremises Floor, shall mean the Ten Day Date (as hereinafter defined) for such
\nPremises Floor; provided, however, that (I) in any case where Landlord is
\nrequired to designate an Expert pursuant to Section 19.03 hereof, the “Tenant
\nRestoration Start Date” for any Premises Floor shall not occur prior to the date
\nthat Tenant receives a statement from the Expert setting forth the Section 19.03
\nEstimated Period (or, if the Section 19.03 Estimated Period is longer than nine
\n(9) months, then the date that is twenty (20) Business Days after Tenant’s
\nreceipt of such statement), and (II) in any case where Landlord designates an
\nExpert pursuant to Section 19.04 hereof, the “Tenant Restoration Start Date” for
\nany Premises Floor shall not occur until the date that Tenant receives a
\nstatement from the Expert setting forth the Section 19.04 Estimate (or, if, by
\nreason of the Section 19.04 Estimate, Landlord shall have a right to terminate
\nthis lease pursuant to Section 19.04, the first date that Landlord no longer has
\nsuch termination right). Notwithstanding the foregoing, if, with respect to any
\nfire or other casualty, Landlord shall notify Landlord that Landlord is waiving
\nany right to terminate this Lease that it might have or come to have under
\nSection 19.04, then, from and after the date of such notice, clause (II) of this
\nSection 19.01(c)(2) and clause (II) of Section 19.01(c)(1) shall be disregarded
\nwith respect to such fire or other casualty.<\/p>\n
(3) The “TEN DAY DATE”, for any Premises Floor,
\nshall mean the date that is ten (10) Business Days after Landlord shall have
\nsubstantially completed enough of the Landlord Restoration Work (if any), that
\nTenant shall be able, in<\/p>\n
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\naccordance with good construction practices, to commence prosecution of the
\nTenant Restoration Work it will be performing on or in respect of such Premises
\nFloor (including without limitation any Landlord Restoration Work that is needed
\nto provide Tenant with the access required to commence such Tenant’s Restoration
\nWork) and shall have notified Tenant thereof in writing; or if, with respect to
\nany Premises Floor, no such Landlord Restoration Work is applicable, then the
\n“Ten Day Date” for such Premises Floor shall be the date ten (10) Business Days
\nafter the date on which Tenant first learns of the damage or destruction giving
\nrise to the need for the Tenant Restoration Work to be performed on or in
\nrespect of such Premises Floor.<\/p>\n
19.02. If, on account of fire or other casualty, all or a part
\nof the Premises shall be rendered untenantable (whether as a result of damage or
\ndestruction to the Premises or damage or destruction to parts of the Building
\noutside the Premises), then the Fixed Rent, the Base Component of Tax Payments
\nand the Operating Payments attributable to each portion of the Premises that is
\nso rendered untenantable shall abate for the period (if any) commencing on the
\ndate that such portion of the Premises first becomes untenantable and ending on
\nthe day preceding the later to occur of the following dates (as applicable):<\/p>\n
(a) the earliest to occur of (i) the date that Tenant
\n shall have substantially completed so much of the Tenant Restoration
\n Work (if any) as is needed to render such portion of the Premises
\n tenantable, (ii) the date that Tenant would have substantially
\n completed so much of the Tenant Restoration Work (if any) as is needed
\n to render such portion of the Premises tenantable, had Tenant, from and
\n after the Tenant Restoration Start Date with respect to the Premises
\n Floor on which such portion of the Premises is located, prosecuted such
\n work to completion with diligence and continuity (subject to Events of
\n Force Majeure), and (iii) the date that is seven (7) months after the
\n Ten Day Date with respect to the Premises Floor on which such portion
\n of the Premises is located (provided that this subsection (a) shall
\n only be applicable if Tenant Restoration Work is needed to render such
\n portion of the Premises tenantable); and<\/p>\n
(b) the date upon which Landlord shall have
\n substantially completed so much of the Landlord Restoration Work as is
\n needed to allow such portion of the Premises, subject to the completion
\n of the applicable Tenant Restoration Work, to be made tenantable
\n (provided that this subsection (b) shall only be applicable if Landlord
\n Restoration Work is needed to render such portion of the Premises
\n tenantable);<\/p>\n
provided, however, that the aforesaid abatement period with respect to any
\nportion of the Premises shall not, in any event, extend beyond the day preceding
\nthe date that such portion of the Premises becomes tenantable (e.g., if Tenant,
\nor any person claiming by, through or under Tenant, shall re-occupy such portion
\nof the Premises for the purposes demised hereunder, then the aforesaid abatement
\nwith respect to such portion of the Premises shall thereupon automatically
\ncease).<\/p>\n
19.03. (a) If, at anytime during the term of this lease, the
\nBuilding shall be damaged or destroyed by fire or other casualty, and, as a
\nresult thereof, 40,000 rentable square feet or more of the Premises are rendered
\nuntenantable (whether as a result of damage or destruction to the Premises or
\ndamage or destruction to parts of the Building outside the Premises), then the
\nfollowing provisions shall apply:<\/p>\n
(1) Landlord, within twenty (20) Business Days
\nafter Landlord has notice of such damage, shall designate an<\/p>\n
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\nindependent, reputable contractor, registered architect or licensed professional
\nengineer, having at least ten (10) years’ experience in the applicable areas of
\nexpertise (any such contractor, architect or engineer being herein called an
\n“EXPERT”) to act in accordance with the provisions of this Section 19.03, which
\nExpert shall be subject to Tenant’s approval, which approval shall not be
\nunreasonably withheld. In any case that Landlord requests Tenant’s approval of
\none or more designated Experts (together with a brief written description of
\neach such entity’s qualifications), Tenant, within five (5) Business Days after
\nTenant’s receipt of such request, shall either grant or deny such approval with
\nrespect to each such Expert (it being agreed that Tenant’s failure to deny such
\napproval of any such Expert in a notice setting forth, in reasonable detail, its
\nreasons therefor, within such five (5) Business Day period shall be deemed an
\napproval of such Expert). Tenant further agrees that if, in connection with any
\nfire or other casualty, an Expert has been approved for substantially similar
\npurposes by a tenant of the Building (other than Tenant) that leases in excess
\nof 350,000 rentable square feet in the Building, then, with respect to such fire
\nor other casualty, Tenant’s approval of such Expert shall be deemed given.
\nWithin twenty (20) Business Days after an Expert has been approved (or deemed
\napproved) by Tenant, Landlord shall deliver to Tenant a statement prepared by
\nsuch Expert setting forth such Expert’s estimate as to the time period (measured
\nfrom the date of the fire or other casualty) required for the substantial
\ncompletion of so much of the Landlord Restoration Work as is needed to allow the
\nPremises, subject to the completion of the applicable Tenant Restoration Work,
\nto be made tenantable (the time period so set forth in such estimate is referred
\nto as the “SECTION 19.03 ESTIMATED PERIOD”).<\/p>\n
(2) If the Section 19.03 Estimated Period
\nexceeds ten (10) months from the date of the fire or other casualty, then Tenant
\nmay elect to terminate this lease by notice to Landlord given not later than
\ntwenty (20) Business Days following receipt of such estimate, which notice shall
\nset forth the date upon which this lease shall terminate, which date shall in no
\nevent be more than twelve (12) months following the date of Tenant’s notice (and
\nin no event after the Expiration Date). If Tenant makes such election, then this
\nlease shall terminate upon the termination date set forth in Tenant’s notice as
\nif such date was the Expiration Date.<\/p>\n
(3) If (i) Tenant shall not have elected to
\nterminate this lease pursuant to Section 19.03(a)(2) above (or if Tenant shall
\nnot have been entitled to terminate this lease pursuant to Section 19.03(a)(2)
\nabove), and (ii) as of the Section 19.03 Outside Date (as defined below),
\nLandlord shall not have effected the substantial completion of so much of the
\nLandlord Restoration Work as is needed to allow the Premises, subject to the
\ncompletion of the applicable Tenant Restoration Work, to be made tenantable,
\nthen Tenant, as its sole remedy on account thereof, may elect to terminate this
\nlease by notice to Landlord given not later than thirty (30) days following
\nSection 19.03 Outside Date, which notice shall set forth the date upon which
\nthis lease shall terminate, which date shall in no event be more than twelve
\n(12) months after the date of Tenant’s notice (and in no event after the
\nExpiration Date). The term “SECTION 19.03 OUTSIDE DATE”, with respect to any
\nfire or other casualty, shall mean the later to occur of (I) the date that is
\nsixty (60) days after the last day of the Section 19.03 Estimated Period, and
\n(II) the date that is ten (10) months after the date of the fire or other
\ncasualty; except that the Section 19.03 Outside Date shall be postponed, but not
\nby more than additional sixty (60) days, by Events of Force Majeure.<\/p>\n
(b) Upon the termination of this lease under any of the
\nconditions provided above in this Section 19.03,<\/p>\n
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\nTenant’s liability for Fixed Rent, the Base Component of Tax Payments and
\nOperating Payments shall, subject to the provisions of Section 19.02, be
\nprorated and adjusted as of the termination date.<\/p>\n
19.04. (a) If, at anytime during the term of this lease, the
\nBuilding shall be materially damaged or destroyed by fire or other casualty
\n(whether or not any portion of the Premises is damaged, destroyed or rendered
\nuntenantable), then Landlord, at anytime thereafter (but in no event more than
\nsixty (60) days after the date of the fire or other casualty), may designate an
\nExpert to act in accordance with the provisions of this Section 19.04, which
\nExpert shall be subject to Tenant’s approval, which approval shall not be
\nunreasonably withheld. In any case that Landlord requests Tenant’s approval of
\none or more designated Experts (together with a brief written description of
\neach such entity’s qualifications), Tenant, within five (5) Business Days after
\nTenant’s receipt of such request, shall either grant or deny such approval of
\neach such Expert (it being agreed that Tenant’s failure to deny such approval of
\nany such Expert in a notice setting forth, in reasonable detail, its reasons
\ntherefor, within such five (5) Business Day period shall be deemed an approval
\nof such Expert). Tenant further agrees that if an Expert has been approved, with
\nrespect to any fire or other casualty, for substantially similar purposes by a
\ntenant of the Building (other than Tenant) that leases in excess of 350,000
\nrentable square feet in the Building, then, with respect to such fire or other
\ncasualty, Tenant’s approval of such Expert shall be deemed given. At anytime
\nafter an Expert has been approved (or deemed approved) by Tenant (but in no
\nevent more than thirty (30) days after such Expert was approved or deemed
\napproved), Landlord may deliver to Tenant a statement prepared by such Expert
\nsetting forth such Expert’s estimate of (i) the time required to fully repair
\nand restore the Base Building (measured from the date of the fire or other
\ncasualty) and\/or (ii) the cost of such repair and restoration (such estimate
\nbeing herein called the “SECTION 19.04 ESTIMATE”).<\/p>\n
(b) If the Section 19.04 Estimate shall indicate that
\nthe full repair and restoration of the Base Building requires either (i) more
\nthan twelve (12) months (measured from the date of the fire or other casualty)
\nor (ii) the expenditure of more than forty (40%) percent of the full insurable
\nvalue of the Base Building determined as of the date immediately prior to the
\ncasualty (which term “FULL INSURABLE VALUE” shall refer to the replacement cost
\nof the Building, less the cost of footings, foundations and other structures
\nbelow the ground level of the Building), then, in either of such events,
\nLandlord may terminate this lease by giving Tenant notice to such effect within
\ntwenty (20) Business Days after the date of the Section 19.04 Estimate (but not,
\nin any event, later than ninety (90) days after such fire or other casualty),
\nwhich notice shall set forth the date for the termination of this lease, which
\ndate shall not be less than three (3) months nor more than twelve (12) months
\nfrom the date of such notice; provided, however, that Landlord shall not have
\nthe right to terminate this lease pursuant to the foregoing provisions of this
\nSection 19.04(b) unless, on account of such fire or other casualty, Landlord has
\ntheretofore terminated, or does simultaneously therewith terminate, one or more
\nOther Tower Part Leases (as hereinafter defined), which, in the aggregate,
\ndemise (at the time of the fire or other casualty) an area equal to or greater
\nthan 75% of the aggregate area demised by all Other Tower Part Leases. If
\nLandlord makes such election, then this lease shall terminate on the termination
\ndate set forth in Landlord’s notice as if the same was the Expiration Date, and
\nthe Fixed Rent, Base Component of Tax Payments and Operating Payments shall,
\nsubject to the provisions of Section 19.02, be prorated and adjusted as of such
\ntermination date. The term “OTHER TOWER PART LEASES”, with respect to any fire
\nor other casualty, shall mean all the leases<\/p>\n
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\n(other than this lease) which, at the time of such fire or other casualty,
\ndemise space in the Tower Part of the Building and do not demise space in the
\nBase Part of the Building.<\/p>\n
19.05. Except as expressly provided in this Article 19,
\nneither Landlord nor Tenant shall be entitled to terminate this lease on account
\nof damage or destruction by fire or other casualty. Landlord shall have no
\nliability to Tenant for inconvenience, loss of business or annoyance arising
\nfrom any repair or restoration of any portion of the Premises or of the Building
\npursuant to this Article 19. Landlord shall prosecute the Landlord Restoration
\nWork with diligence and continuity (subject to Force Majeure) and consistent
\nwith the provisions of Section 35.15(a) hereof, and, without limiting the
\ngenerality of the foregoing, shall use reasonable efforts to complete the
\napplicable portions of any Landlord Restoration Work prior to end of any Section
\n19.03 Estimated Period; provided, however, that, notwithstanding anything to the
\ncontrary contained in Section 35.15, in no event shall Landlord ever be
\nobligated to perform any Landlord Restoration Work except during Business Hours
\non Business Days (i.e., the provisions of Section 35.15(b) and (c) shall not
\napply to Landlord’s Restoration Work).<\/p>\n
19.06. Landlord will not be required to carry insurance of any
\nkind on Tenant’s Improvements or Tenant’s Property and shall not be required to
\nrepair any damage to or replace Tenant’s Improvements or Tenant’s Property.<\/p>\n
19.07. The provisions of this Article 19 shall be deemed an
\nexpress agreement governing any case of damage or destruction of the Premises by
\nfire or other casualty, and Section 227 of the Real Property Law of the State of
\nNew York, providing for such a contingency in the absence of an express
\nagreement, and any other law of like import, now or hereafter in force, shall
\nhave no application in such case.<\/p>\n
19.08. Tenant, to the extent it has actual knowledge thereof,
\nshall give prompt notice to Landlord of any fire or other casualty in or
\naffecting the Premises.<\/p>\n
19.09. If Tenant, pursuant to the provisions of Section 19.02
\nhereof, shall be entitled to an abatement of any Fixed Rent for any part of the
\nPremises for any period prior to the Fixed Rent Commencement Date, then the
\ndollar amount of such abatement of Fixed Rent to which Tenant is so entitled
\nunder Section 19.02 hereof shall be deemed a credit against the first
\ninstallments of Fixed Rent payable with respect to such portion of the Premises
\nafter the Fixed Rent Commencement Date.<\/p>\n
ARTICLE 20<\/p>\n
Eminent Domain<\/p>\n
20.01. If the whole of the Building or the Premises shall be
\ntaken by condemnation or in any other manner for any public or quasi-public use
\nor purpose, this lease and the term and estate hereby granted shall terminate as
\nof the date of the vesting of title in connection with such taking (herein
\ncalled “DATE OF THE TAKING”), and the Fixed Rent and Additional Charges shall be
\nprorated and adjusted as of such date.<\/p>\n
20.02. If any part of the Building or the Land shall be so
\ntaken, this lease shall be unaffected by such taking, except that (a) if more
\nthan twenty (20%) percent of the Building shall be so taken, then, in either
\nevent, Landlord may, at its option, terminate this lease by giving Tenant notice
\nto that effect within ninety (90) days after the Date of the Taking, and (b) if
\ntwenty (20%) percent or more of the rentable area of the Premises shall be so
\ntaken and the remaining rentable area of the<\/p>\n
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\nPremises shall not be reasonably sufficient, in Tenant’s reasonable judgement,
\nfor Tenant to efficiently operate its business, then Tenant may terminate this
\nlease by giving Landlord notice to that effect within ninety (90) days after the
\nDate of the Taking. This lease shall terminate on the date that such notice from
\nLandlord or Tenant to the other shall be given, and the Fixed Rent and
\nAdditional Charges shall be prorated and adjusted as of such termination date.
\nUpon such partial taking and this lease continuing in force as to any part of
\nthe Premises, the Fixed Rent, Tenant’s Tax Share and Tenant’s Operating Share
\nshall be reduced and the Base Tax Amount and Base Operating Amount shall be
\nadjusted, all in the proportion that the area of the Premises taken bears to the
\ntotal area of the Premises.<\/p>\n
20.03. (a) Landlord shall be entitled to receive the entire
\naward or payment (herein called the “BUILDING AWARD”) in connection with any
\ntaking, without reduction therefrom for any estate vested in Tenant by this
\nlease or any value attributable to the unexpired portion of the term of this
\nlease and, except as hereinafter expressly provided in Section 20.03(b) below,
\nTenant shall receive no part of such award or payment. Tenant hereby expressly
\nassigns to Landlord all of its right, title and interest in and to any right to
\nthe value of the unexpired portion of the term of this lease, and, except as
\nprovided in Section 20.03(b) below, any such award or payment.<\/p>\n
(b) If any portion of any Building Award is attributed
\nto any Tenant’s Improvements (such portion of any Building Award being herein
\ncalled the “T.I. PORTION”), then Landlord, promptly after the final
\ndetermination of such Building Award (and the T.I. Portion thereof) and its
\nreceipt of the same, shall pay to Tenant an amount equal to the T.I. Portion.<\/p>\n
(c) Nothing contained in this Section 20.03 shall be
\ndeemed to prevent Tenant from maintaining a separate action, or making a
\nseparate claim in any condemnation proceedings, for Tenant’s Improvements,
\nTenant’s Property and moving expenses; provided, however, any such award shall
\nnot result in a reduction of any Building Award.<\/p>\n
20.04. If the temporary use or occupancy of all or any part of
\nthe Premises shall be taken by condemnation or in any other manner for any
\npublic or quasi-public use or purpose during the term of this lease (any such
\ntaking being herein called a “TEMPORARY TAKING”), then (i) this lease shall be
\nand remain unaffected by such taking and Tenant shall continue to be responsible
\nfor all of its obligations hereunder insofar as such obligations are not
\naffected by such taking and shall continue to pay in full the Fixed Rent and
\nAdditional Charges when due, (ii) Tenant shall be entitled, except as
\nhereinafter set forth, to receive that portion of the award for such temporary
\ntaking which represents compensation for the use and occupancy of the Premises,
\nfor the temporary taking of Tenant’s Improvements, Tenant’s Property and for
\nmoving expenses, and (iii) Landlord shall be entitled to receive that portion of
\nthe award, if any, for such temporary taking which represents reimbursement for
\nthe cost of restoring the Premises. If the period of temporary use or occupancy
\nshall extend beyond the Expiration Date of this lease, that part of the award
\nwhich represents compensation for the use and occupancy of the Premises (or a
\npart thereof) shall be divided between Landlord and Tenant so that Tenant shall
\nreceive so much thereof as represents the period up to and including such
\nExpiration Date and Landlord shall receive so much thereof as represents the
\nperiod after such Expiration Date.<\/p>\n
20.05. In the event of a taking of less than the whole of the
\nBuilding and\/or the Land which does not result in termination of this lease, or
\nin the event of a temporary taking of all or any part of the Premises which does
\nnot result in a<\/p>\n
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\n 128
\ntermination of this lease, (a) Landlord, at its expense, and whether or not any
\naward or awards shall be sufficient for the purpose (except as provided below),
\nshall proceed with reasonable diligence to perform the Landlord’s Condemnation
\nWork (as defined below), and (b) Tenant, at its expense, and whether or not any
\naward or awards shall be sufficient for the purpose, shall have the right (but
\nshall not be obligated) to perform the Tenant’s Condemnation Work (as defined
\nbelow). The “LANDLORD’S CONDEMNATION WORK” shall mean, the work necessary to
\nrepair the remaining parts of the Building and the Premises (other than the
\nTenant’s Improvements and Tenant’s Property) to substantially their former
\ncondition to the extent that the same may be feasible (subject to reasonable
\nchanges which Landlord shall deem desirable) and so as to constitute a complete
\nand rentable Building and Premises. The “TENANT’S CONDEMNATION WORK” shall mean
\nthe work necessary to repair the Tenant’s Improvements and Tenant’s Property, to
\nsubstantially their former condition to the extent that the same may be
\nfeasible, subject to reasonable changes; such work shall be deemed Alterations.<\/p>\n
ARTICLE 21<\/p>\n
Surrender<\/p>\n
21.01. On the Expiration Date, or upon any earlier termination
\nof this lease, or upon any reentry by Landlord upon the Premises pursuant to
\nArticle 23, Tenant shall quit and surrender the Premises to Landlord
\n“broom-clean” and in good order, condition and repair, except for ordinary wear
\nand tear and such damage or destruction as Landlord is required to repair or
\nrestore under this lease or Tenant is not required under this lease to repair or
\nrestore, and Tenant (i) shall remove those Tenant’s Improvements which it is
\nrequired to remove pursuant to Article 12 hereof and (ii) shall remove all of
\nthe Tenant’s Property except as otherwise expressly provided in this lease.<\/p>\n
21.02. No act or thing done by Landlord or its agents shall be
\ndeemed an acceptance of a surrender of the Premises, and no agreement to accept
\nsuch surrender shall be valid unless in writing and signed by Landlord and each
\nUnderlying Lessor and Mortgagee (of which Tenant has knowledge) whose lease or
\nmortgage, as the case may be, provides that no such surrender may be accepted
\nwithout its consent.<\/p>\n
ARTICLE 22<\/p>\n
Conditions of Limitation<\/p>\n
22.01. This lease and the term and estate hereby granted are
\nsubject to the limitation that whenever Tenant shall make a general assignment
\nfor the benefit of creditors, or shall file a voluntary petition under any
\nbankruptcy or insolvency law, or an involuntary petition alleging an act of
\nbankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
\ninsolvency law (and such petition shall not be dismissed within 120 days after
\nits filing), or whenever a petition shall be filed by or against (and if
\nagainst, such petition shall not be dismissed within 120 days after its filing)
\nTenant under the reorganization provisions of the United States Bankruptcy Code
\nor under the provisions of any law of like import, or whenever a petition shall
\nbe filed by Tenant, under the arrangement provisions of the United States
\nBankruptcy Code or under the provisions of any law of like import, or whenever a
\npermanent receiver of Tenant, or of or for the property of Tenant, shall be
\nappointed and not removed after a period of 120 days, then Landlord, at any time
\nafter the occurrence of any such event, may give Tenant a notice of intention to
\nend the term of this lease at the expiration of five days from the date of
\nservice of such<\/p>\n
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\n 129
\nnotice of intention, and upon the expiration of said five-day period this lease
\nand the term and estate hereby granted, whether or not the term shall
\ntheretofore have commenced, shall terminate with the same effect as if that day
\nwere the expiration date of this lease, but Tenant shall remain liable for
\ndamages as provided in Article 24.<\/p>\n
22.02. This lease and the term and estate hereby
\ngranted are subject to the further limitations that:<\/p>\n
(a) if Tenant shall default in the payment of any (i)
\nFixed Rent, and such default shall continue for ten (10) days after notice
\nthereof from Landlord or (ii) Additional Charges, and such default shall
\ncontinue for a period of fifteen (15) days after notice thereof from Landlord,
\nor<\/p>\n
(b) if Tenant shall, whether by action or inaction, be
\nin default of any of its obligations under this lease (other than a default in
\nthe payment of Fixed Rent or Additional Charges) and such default shall continue
\nand not be remedied as soon as reasonably practicable and in any event within
\nthirty (30) days after Landlord shall have given to Tenant a notice specifying
\nthe same, or, in the case of a default which cannot with due diligence be cured
\nwithin a period of thirty (30) days, if Tenant shall not (x) within said thirty
\n(30) day period advise Landlord of Tenant’s intention to take all steps
\nnecessary to remedy such default, (y) duly commence within said 30-day period,
\nand thereafter diligently prosecute to completion all steps necessary to remedy
\nthe default and (z) complete such remedy within a reasonable time after the date
\nof said notice of Landlord, or<\/p>\n
(c) if any event shall occur or any contingency shall
\narise whereby this lease or the estate hereby granted or the unexpired balance
\nof the term hereof would, by operation of law or otherwise, devolve upon or pass
\nto any person, firm or corporation other than Tenant, except as expressly
\npermitted by Article 7,<\/p>\n
then in any of said cases Landlord may give to Tenant a notice of intention to
\nend the term of this lease at the expiration of ten (10) days from the date of
\nthe service of such notice of intention, and upon the expiration of said ten
\n(10) days this lease and the term and estate hereby granted, whether or not the
\nterm shall theretofore have commenced, shall terminate with the same effect as
\nif that day was the day herein definitely fixed for the end and expiration of
\nthis lease, but Tenant shall remain liable for damages as provided in Article
\n24.<\/p>\n
22.03. (a) If Tenant shall have assigned its interest in this
\nlease, and this lease shall thereafter be disaffirmed or rejected in any
\nproceeding under the United States Bankruptcy Code or under the provisions of
\nany Federal, state or foreign law of like import, or in the event of termination
\nof this lease by reason of any such proceeding, the assignor or any of its
\npredecessors in interest under this lease, upon request of Landlord given within
\nninety (90) days after such disaffirmance or rejection shall (a) pay to Landlord
\nall Fixed Rent and Additional Charges then due and payable to Landlord under
\nthis lease to and including the date of such disaffirmance or rejection and (b)
\nenter into a new lease as lessee with Landlord of the Premises for a term
\ncommencing on the effective date of such disaffirmance or rejection and ending
\non the Expiration Date, unless sooner terminated as in such lease provided, at
\nthe same Fixed Rent and Additional Charges and upon the then executory terms,
\ncovenants and conditions as are contained in this lease, except that (i) the
\nrights of the lessee under the new lease, shall be subject to any possessory
\nrights of the assignee in question under this lease and any rights of persons
\nclaiming through or under such assignee, (ii) such new lease<\/p>\n
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\n 130
\nshall require all defaults existing under this lease to be cured by the lessee
\nwith reasonable diligence, and (iii) such new lease shall require the lessee to
\npay all Additional Charges which, had this lease not been disaffirmed or
\nrejected, would have become due after the effective date of such disaffirmance
\nor rejection with respect to any prior period. If the lessee shall fail or
\nrefuse to enter into the new lease within ten (10) days after Landlord’s request
\nto do so, then in addition to all other rights and remedies by reason of such
\ndefault, under this lease, at law or in equity, Landlord shall have the same
\nrights and remedies against the lessee as if the lessee had entered into such
\nnew lease and such new lease had thereafter been terminated at the beginning of
\nits term by reason of the default of the lessee thereunder.<\/p>\n
(b) If pursuant to the Bankruptcy Code Tenant is
\npermitted to assign this lease in disregard of the restrictions contained in
\nArticle 7 (or if this lease shall be assumed by a trustee), the trustee or
\nassignee shall cure any default under this lease and shall provide adequate
\nassurance of future performance by the trustee or assignee including (i) the
\nsource of payment of rent and performance of other obligations under this Lease,
\nfor which adequate assurance shall mean the deposit of cash security with
\nLandlord in an amount equal to the sum of one year’s Fixed Rent then reserved
\nhereunder plus an amount equal to all Additional Charges payable under Article 3
\nfor the calendar year preceding the year in which such assignment is intended to
\nbecome effective, which deposit shall be held by Landlord, without interest, for
\nthe balance of the term as security for the full and faithful performance of all
\nof the obligations under this lease on the part of Tenant yet to be performed,
\nand that any such assignee of this lease shall have a net worth exclusive of
\ngood will, computed in accordance with generally accepted accounting principles,
\nequal to at least ten (10) times the aggregate of the annual Fixed Rent reserved
\nhereunder plus all Additional Charges for the preceding calendar year as
\naforesaid and (ii) that the use of the Premises shall in no way diminish the
\nreputation of the Building as a first-class office building or impose any
\nadditional burden upon the Building or increase the services to be provided by
\nLandlord. If all defaults are not cured and such adequate assurance is not
\nprovided within 60 days after there has been an order for relief under the
\nBankruptcy Code, then this lease shall be deemed rejected, Tenant or any other
\nperson in possession shall vacate the Premises, and Landlord shall be entitled
\nto retain any rent or security deposit previously received from Tenant and shall
\nhave no further liability to Tenant or any person claiming through Tenant or any
\ntrustee. If Tenant receives or is to receive any valuable consideration for such
\nan assignment of this Lease, such consideration, after deducting therefrom (a)
\nthe brokerage commissions, if any, and other expenses reasonably incurred by
\nTenant for such assignment and (b) any portion of such consideration reasonably
\ndesigned by the assignee as paid for the purchase of Tenant’s Property in the
\nPremises, shall be and become the sole exclusive property of Landlord and shall
\nbe paid over to Landlord directly by such assignee.<\/p>\n
(c) If Tenant’s trustee, Tenant or Tenant as
\ndebtor-in-possession assumes this lease and proposes to assign the same
\n(pursuant to Title 11 U.S.C. Section 365, as the same may be amended) to any
\nperson, including, without limitation, any individual, partnership or corporate
\nentity, who shall have made a bona fide offer to accept an assignment of this
\nLease on terms acceptable to the trustee, Tenant or Tenant as debtor-in-
\npossession, then notice of such proposed assignment, setting forth (x) the name
\nand address of such person, (y) all of the terms and conditions of such offer,
\nand (z) the adequate assurance to be provided Landlord to assure such person’s
\nfuture performance under this lease, including, without limitation, the
\nassurances referred to in Title 11 U.S.C. Section 365(b)(3) (as the<\/p>\n
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\nsame may be amended), shall be given to Landlord by the trustee, Tenant or
\nTenant as debtor-in-possession no later than twenty (20) days after receipt by
\nthe trustee, Tenant or Tenant as debtor-in-possession of such offer, but in any
\nevent no later than ten (10) days prior to the date that the trustee, Tenant or
\nTenant as debtor-in-possession shall make application to a court of competent
\njurisdiction for authority and approval to enter into such assignment and
\nassumption, and Landlord shall thereupon have the prior right and option, to be
\nexercised by notice to the trustee, Tenant or Tenant as debtor-in-possession,
\ngiven at any time prior to the effective date of such proposed assignment, to
\naccept an assignment of this lease upon the same terms and conditions and for
\nthe same consideration, if any, as the bona fide offer made by such person, less
\nany brokerage commissions which may be payable out of the consideration to be
\npaid by such person for the assignment of this lease.<\/p>\n
ARTICLE 23<\/p>\n
Reentry by Landlord<\/p>\n
23.01. If Landlord obtains a court order permitting reentry,
\nor if this lease shall terminate as provided in Article 22, Landlord or
\nLandlord’s agents and employees may immediately or at any time thereafter
\nreenter the Premises, or any part thereof, either by summary dispossess
\nproceedings or by any suitable action or proceeding at law, without being liable
\nto indictment, prosecution or damages therefor, and may repossess the same, and
\nmay remove any person therefrom, to the end that Landlord may have, hold and
\nenjoy the Premises. The word “reenter”, as used herein, is not restricted to its
\ntechnical legal meaning. If this lease is terminated under the provisions of
\nArticle 22, or if Landlord shall reenter the Premises under the provisions of
\nthis Article, or in the event of the termination of this lease, or of reentry,
\nby or under any summary dispossess or other proceeding or action or any
\nprovision of law by reason of default hereunder on the part of Tenant, Tenant
\nshall thereupon pay to Landlord the Fixed Rent and Additional Charges payable up
\nto the time of such termination of this lease, or of such recovery of possession
\nof the Premises by Landlord, as the case may be, and shall also pay to Landlord
\ndamages as provided in Article 24.<\/p>\n
23.02. In the event of a breach or threatened breach by Tenant
\nof any of its obligations under this lease, Landlord shall also have the right
\nof injunction. The special remedies to which Landlord may resort hereunder are
\ncumulative and are not intended to be exclusive of any other remedies to which
\nLandlord may lawfully be entitled at any time and Landlord may invoke any remedy
\nallowed at law or in equity as if specific remedies were not provided for
\nherein; provided, however, that this sentence shall not be deemed to authorize
\nLandlord to recover any damages, or exercise any remedy, expressly denied by any
\nother provision of this lease.<\/p>\n
23.03. If this lease shall terminate under the provisions of
\nArticle 22, or if Landlord shall reenter the Premises under the provisions of
\nthis Article, or in the event of the termination of this lease, or of reentry,
\nby or under any summary dispossess or other proceeding or action or any
\nprovision of law by reason of default hereunder on the part of Tenant, Landlord
\nshall be entitled to retain all monies, if any, paid by Tenant to Landlord,
\nwhether as advance rent, security or otherwise, but such monies shall be
\ncredited by Landlord against any Fixed Rent or Additional Charges due from
\nTenant at the time of such termination or reentry or, at Landlord’s option,
\nagainst any damages payable by Tenant under Article 24 or pursuant to law.<\/p>\n
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\n ARTICLE 24<\/p>\n
Damages<\/p>\n
24.01. If this lease is terminated under the provisions of Article
\n22, or if Landlord shall reenter the Premises under the provisions of Article
\n23, or in the event of the termination of this lease by reason of Tenant’s
\ndefault, or of reentry, by or under any summary dispossess or other proceeding
\nor action or any provision of law by reason of default hereunder on the part of
\nTenant, Tenant shall pay to Landlord as damages, at the election of Landlord,
\neither:<\/p>\n
(a) a sum which at the time of such termination of this
\n lease or at the time of any such re-entry by Landlord, as the case may be,
\n represents the then present value, discounted to present value at the
\n Article 24 Discount Rate (as defined below), of the excess, if any, of<\/p>\n
(1) the aggregate amount of the Fixed Rent and the
\n Additional Charges under Article 3 which, in the absence of such
\n termination or re-entry, would have been payable by Tenant
\n (conclusively presuming the average monthly Additional Charges per
\n square foot of rentable area under Article 3 to be the same as were
\n payable for the last 12 calendar months, or if less than 12 calendar
\n months have then elapsed since the Commencement Date, all of the
\n calendar months immediately preceding such termination or reentry)
\n for the period (herein called the “COMPUTATION PERIOD”) commencing
\n with such earlier termination of this lease or the date of any such
\n reentry, as the case may be, and ending with the Then Current
\n Expiration Date (as of the date immediately prior to such
\n termination or re-entry) (or, if, prior to such termination or
\n re-entry, either Landlord or Tenant shall have theretofore timely
\n exercised an expressly granted right to terminate this lease
\n pursuant to Article 7, 19, 20 or 37, then ending with such earlier
\n date upon which this lease would have terminated pursuant to such
\n previously exercised right, it being agreed that if any such
\n termination is pursuant to Article 7, 20 or 37 and the same relates
\n only to a portion of the Premises, then this parenthetical shall be
\n given effect only with respect to the portion of the Premises to
\n which such termination relates), over<\/p>\n
(2) the aggregate rental value of the Premises for
\n the Computation Period; or<\/p>\n
(b) sums equal to the Fixed Rent and the Additional
\n Charges under Article 3 which, in the absence of such termination or
\n re-entry, would have been payable by Tenant had this lease not so
\n terminated, or had Landlord not so reentered the Premises, payable upon
\n the due dates therefor specified herein following such termination or such
\n reentry and until the Then Current Expiration Date (as of the date
\n immediately prior to such termination or re-entry) (or, if, prior to such
\n termination or re-entry, either Landlord or Tenant shall have theretofore
\n timely exercised an expressly granted right to terminate this lease
\n pursuant to Article 7, 19, 20 or 37, then ending with such earlier date
\n upon which this lease would have terminated pursuant to such previously
\n exercised right, it being agreed that if any such termination is pursuant
\n to Article 7, 20 or 37 and the same relates only to a portion of the
\n Premises, then this parenthetical shall be given effect only with respect
\n to the portion of the Premises to which such termination relates);
\n provided, however, that if Landlord shall relet the Premises during said
\n period, Landlord shall credit Tenant with the<\/p>\n
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\n net rents received by Landlord from such reletting, such net rents to be
\n determined by first deducting from the gross rents as and when received by
\n Landlord from such reletting the expenses incurred or paid by Landlord in
\n terminating this lease or in reentering the Premises and in securing
\n possession thereof, as well as the expenses of reletting, including,
\n without limitation, altering and preparing the Premises for new tenants,
\n brokers’ commissions, legal fees, and all other expenses properly
\n chargeable against the Premises and the rental therefrom, it being
\n understood that any such reletting may be for a period shorter or longer
\n than the remaining term of this lease; but in no event shall Tenant be
\n entitled to receive any excess of such net rents over the sums payable by
\n Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for
\n the collection of damages pursuant to this subdivision to a credit in
\n respect of any net rents from a reletting, except to the extent that such
\n net rents are actually received by Landlord. If the Premises or any part
\n thereof should be relet in combination with other space, then proper
\n apportionment on a square foot basis shall be made of the rent received
\n from such reletting and of the expenses of reletting.<\/p>\n
If the Premises or any part thereof should be occupied by Landlord (or, if on
\nother than on an arm’s length basis, by Landlord’s agents or Affiliates) for the
\nconduct of such party’s ordinary business (as distinguished from temporary use
\nfor the business of operating and\/or leasing the Real Property), then Landlord
\nshall credit Tenant with the fair market rental value of the portion of the
\nPremises so occupied, minus the costs incurred by Landlord (or such agent or
\nAffiliate) to prepare such portion for its occupancy.<\/p>\n
If the Premises or any part thereof be relet by Landlord for the unexpired
\nportion of the term of this lease, or any part thereof, before presentation of
\nproof of such damages to any court, commission or tribunal, the amount of rent
\nreserved upon such reletting shall, prima facie, be the fair and reasonable
\nrental value for the Premises, or part thereof, so relet during the term of the
\nreletting.<\/p>\n
Landlord shall not be liable in any way whatsoever for its failure or refusal to
\nrelet the Premises or any part thereof, or if the Premises or any part thereof
\nare relet, for its failure to collect the rent under such reletting, and no such
\nrefusal or failure to relet or failure to collect rent shall release or affect
\nTenant’s liability for damages or otherwise under this lease.<\/p>\n
For the purposes of this Article 24, the “ARTICLE 24 DISCOUNT RATE” shall mean
\nthe per annum rate in effect on the first day of the Computation Period, equal
\nto the interest rate on United States Treasury Securities having a maturity date
\nthat will occur within the same calendar month as occurs the 60% Day (as defined
\nbelow). The “60% DAY” shall be the day that occurs the following number of days
\nafter the first day of the Computation Period: a number of days equal to the
\nproduct obtained by multiplying the total number of days in the Computation
\nPeriod by 0.6. If at any time United States Treasury Securities cease to be
\nissued or actively traded, Landlord, upon written notice to Tenant, shall
\nreasonably designate other obligations backed by the full faith and credit of
\nthe United States having such maturities as the instruments to be substituted
\nfor such United States Treasury Securities in order to compute the Treasury
\nRate.<\/p>\n
24.02. Suit or suits for the recovery of such damages, or any
\ninstallments thereof, may be brought by Landlord from time to time at its
\nelection, and nothing contained herein shall be deemed to require Landlord to
\npostpone suit until the date when the term of this lease would have expired if
\nit had not been so<\/p>\n
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\n 134
\nterminated under the provisions of Article 22, or had Landlord not reentered the
\nPremises. Nothing herein contained shall be construed to limit or preclude
\nrecovery by Landlord against Tenant of any sums or damages to which, in addition
\nto the damages particularly provided above, Landlord may lawfully be entitled by
\nreason of any default hereunder on the part of Tenant, except consequential
\ndamages. Nothing herein contained shall be construed to limit or prejudice the
\nright of Landlord to prove for and obtain as damages by reason of the
\ntermination of this lease or reentry on the Premises for the default of Tenant
\nunder this lease an amount equal to the maximum allowed by any statute or rule
\nof law in effect at the time when, and governing the proceedings in which, such
\ndamages are to be proved whether or not such amount be greater than any of the
\nsums referred to in Section 24.01, except consequential damages.<\/p>\n
24.03. In addition, if this lease is terminated under the provisions
\nof Article 22, or if Landlord shall reenter the Premises under the provisions
\nof Article 23, Tenant agrees that:<\/p>\n
(a) the Premises then shall be in the condition in which
\nTenant has agreed to surrender the same to Landlord at the expiration of the
\nterm hereof;<\/p>\n
(b) Tenant shall have performed prior to any such
\ntermination any covenant of Tenant contained in this lease for the making of any
\nAlterations or for restoring or rebuilding the Premises or the Building, or any
\npart thereof; and<\/p>\n
(c) for the breach of any covenant of Tenant set forth
\nabove in this Section 24.03, Landlord shall be entitled immediately, without
\nnotice or other action by Landlord, to recover, and Tenant shall pay, as and for
\nliquidated damages therefor, the cost of performing such covenant (as estimated
\nby an independent contractor selected by Landlord).<\/p>\n
24.04. In addition to any other remedies Landlord may have under
\nthis lease, and without reducing or adversely affecting any of Landlord’s rights
\nand remedies under Article 22, if any Fixed Rent, Additional Charges or damages
\npayable hereunder by Tenant to Landlord are not paid within five (5) Business
\nDays after the due date therefor, the same shall bear interest at the Interest
\nRate, from the due date thereof until paid, and the amount of such interest
\nshall be an Additional Charge hereunder.<\/p>\n
ARTICLE 25<\/p>\n
Affirmative Waivers<\/p>\n
25.01. Tenant, on behalf of itself and any and all persons claiming
\nthrough or under Tenant, does hereby waive and surrender all right and privilege
\nwhich it, they or any of them might have under or by reason of any present or
\nfuture law, to redeem the Premises or to have a continuance of this lease after
\nbeing dispossessed or ejected therefrom by process of law or under the terms of
\nthis lease or after the termination of this lease as provided in this lease.<\/p>\n
25.02. If Tenant is in arrears in payment of Fixed Rent or
\nAdditional Charges, Tenant waives Tenant’s right, if any, to designate the items
\nto which any payments made by Tenant are to be credited, and Tenant agrees that
\nLandlord may apply any payments made by Tenant to such items as Landlord sees
\nfit, irrespective of and notwithstanding any designation or request by Tenant as
\nto the items to which any such payments shall be credited.<\/p>\n
25.03. Landlord and Tenant hereby waive trial by jury in any action,
\nproceeding or counterclaim brought by either<\/p>\n
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\n 135
\nagainst the other on any matter whatsoever arising out of or in any way
\nconnected with this lease, the relationship of Landlord and Tenant, Tenant’s use
\nor occupancy of the Premises, including, without limitation, any claim of injury
\nor damage, and any emergency and other statutory remedy with respect thereto.<\/p>\n
25.04. Tenant shall not interpose any counterclaim of any kind in
\nany summary action or proceeding commenced by Landlord to recover possession of
\nthe Premises, other than a counterclaim which states only one or more claims
\nwhich, if not raised in such action or proceeding, would be irrevocably waived
\nby Tenant.<\/p>\n
ARTICLE 26<\/p>\n
No Waivers<\/p>\n
26.01. The failure of either party to insist in any one or more
\ninstances upon the strict performance of any one or more of the obligations of
\nthis lease, or to exercise any election herein contained, shall not be construed
\nas a waiver or relinquishment for the future of the performance of such one or
\nmore obligations of this lease or of the right to exercise such election, and
\nsuch right to insist upon strict performance shall continue and remain in full
\nforce and effect with respect to any subsequent breach, act or omission. The
\nreceipt by Landlord of Fixed Rent or partial payments thereof or Additional
\nCharges or partial payments thereof with knowledge of breach by Tenant of any
\nobligation of this lease shall not be deemed a waiver of such breach.<\/p>\n
26.02. If this lease is terminated by Landlord or by Tenant pursuant
\nto any of the terms hereof, Tenant shall not have the right by virtue of any
\nrenewal option herein granted to reinstate this lease.<\/p>\n
ARTICLE 27<\/p>\n
Curing Tenant’s Defaults<\/p>\n
27.01. If Tenant shall default in the performance of any of Tenant’s
\nobligations under this lease, Landlord, any Underlying Lessor or any Mortgagee
\nwithout thereby waiving such default, may (but shall not be obligated to)
\nperform the same for the account and at the expense of Tenant, without notice in
\na case of emergency, and in any other case only if such default continues after
\nthe expiration of any applicable notice and cure period. If Landlord effects
\nsuch cure by bonding any lien which Tenant is required to bond or otherwise
\ndischarge, Tenant shall obtain and substitute a bond for Landlord’s bond at its
\nsole cost and expense and reimburse Landlord for the cost of Landlord’s bond.<\/p>\n
27.02. Bills for any expenses incurred by Landlord or any Underlying
\nLessor or any Mortgagee in connection with any such performance by it for the
\naccount of Tenant, and, if Landlord shall be the successful party in any action
\nor suit, bills for all costs, expenses and disbursements of every kind and
\nnature whatsoever, including reasonable counsel fees, involved in collecting or
\nendeavoring to collect the Fixed Rent or Additional Charges or any part thereof
\nor enforcing or endeavoring to enforce any rights against Tenant or Tenant’s
\nobligations hereunder, under or in connection with this lease or pursuant to
\nlaw, including any such cost, expense and disbursement involved in instituting
\nand prosecuting summary proceedings or in recovering possession of the Premises
\nafter default by Tenant or upon the expiration or sooner termination of this
\nlease, and interest on all sums advanced by Landlord or such Underlying Lessor
\nor Mortgagee under this Section and\/or Section 27.01 (at<\/p>\n
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\n 136
\nthe Interest Rate) may be sent by Landlord or such Underlying Lessor or
\nMortgagee to Tenant monthly, or immediately, at its option, and such amounts
\nshall be due and payable as Additional Charges in accordance with the terms of
\nsuch bills.<\/p>\n
ARTICLE 28<\/p>\n
Broker<\/p>\n
28.01. Landlord and Tenant each covenant, warrant and represent to
\nthe other that no broker except Goldman, Sachs & Co. and Edward S. Gordon
\nCompany, Inc. (collectively, the “BROKERS”) was instrumental in bringing about
\nor consummating this lease and that they have had no conversations or
\nnegotiations with any broker except the Brokers concerning the leasing of the
\nPremises. Landlord and Tenant each agree to indemnify and hold harmless the
\nother against and from any claims for any brokerage commissions and all costs,
\nexpenses and liabilities in connection therewith, including, without limitation,
\nattorneys’ fees and expenses, arising out of any conversations or negotiations
\nhad by that party with any broker other than the Brokers. Landlord agrees to pay
\nthe Brokers pursuant to separate agreements.<\/p>\n
ARTICLE 29<\/p>\n
Notices<\/p>\n
29.01. Any notice, statement, demand, consent, approval or other
\ncommunication required or permitted to be given, rendered or made by either
\nLandlord or Tenant pursuant to this lease or pursuant to any applicable law or
\nrequirement of public authority (collectively, “NOTICES”) shall be in writing
\n(whether or not so stated elsewhere in this lease) and shall be deemed to have
\nbeen properly given, rendered or made only if sent by (i) registered or
\ncertified mail, return receipt requested, posted in a United States post office
\nstation or letter box in the continental United States or (ii) overnight courier
\nservice, addressed to the other party at the address hereinabove set forth, and
\nshall be deemed to have been given, rendered or made on the second (2nd)
\nBusiness Day after the day so mailed, unless mailed outside of the State of New
\nYork, in which case it shall be deemed to have been given, rendered or made on
\nthe third (3rd) Business Day after the day so mailed or when delivered by
\novernight courier service; provided, however, that notices of default given by
\none party hereto to the other shall be deemed to have been given, rendered or
\nmade on the day when actually receipted by the sendee (or if the sendee refuses
\nto accept such notice, then on the day on which the sendee refused to accept
\ndelivery of such notice). Either party may, by notice as aforesaid, designate a
\ndifferent address or addresses for notices intended for it. Notwithstanding the
\nforegoing, with respect to a default or termination of this lease, an occurrence
\npresenting imminent danger to the health or safety of persons or damage to
\nproperty in, on or about the Building or during a postal strike, notices may be
\nhand delivered to a party at the address to which notices to that party are to
\nbe sent, provided that the same notice is also sent in the manner set forth
\nabove.<\/p>\n
29.02. Notices hereunder from Landlord to Tenant may be given by
\nLandlord’s managing agent. A duplicate copy of all notices sent by Landlord to
\nTenant shall be sent to Tenant marked to the attention of Legal Department.<\/p>\n
29.03. A duplicate copy of all notices sent by Tenant to Landlord
\nshall be sent to Landlord at each of the following addresses: (i) Building
\nOffice, One New York Plaza, New York, New York 10081, Attention: Building
\nManager; and (ii) Real Estate<\/p>\n
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\n 137
\nResources, 4 Chase MetroTech Center, 17th Floor, Brooklyn, New York 11245,
\nAttention: Vice President.<\/p>\n
ARTICLE 30<\/p>\n
Estoppel Certificates<\/p>\n
30.01. Each party agrees, at any time and from time to time, on or
\nprior to the tenth day following a written request by the other party, to
\nexecute and deliver to the other a statement certifying that this lease is
\nunmodified and in full force and effect (or if there have been modifications,
\nthat the same is in full force and effect as modified and stating the
\nmodifications), certifying the Commencement Date, Expiration Date and the dates
\nto which the Fixed Rent and Additional Charges have been paid, stating whether
\nor not, to the best knowledge of the signer, the other party is in default in
\nperformance of any of its obligations under this lease, and, if so, specifying
\neach such default of which the signer shall have knowledge and stating whether
\nor not, to the best knowledge of the signer, any event has occurred which with
\nthe giving of notice or passage of time, or both, would constitute such a
\ndefault, and, if so, specifying each such event, it being intended that any such
\nstatement delivered pursuant hereto shall be deemed a representation and
\nwarranty to be relied upon by the party requesting the certificate and by others
\nwith whom such party may be dealing, regardless of independent investigation.
\nTenant also shall include or confirm in any such statement the extent, if any,
\nto which Landlord’s Work has not theretofore been completed.<\/p>\n
ARTICLE 31<\/p>\n
Definitions<\/p>\n
31.01. For the purposes of this lease, the following terms have the
\nmeanings indicated:<\/p>\n
“ADJUSTED BY CPI” shall mean that the amount in question
\nshall be adjusted on each anniversary of the date hereof by adding to such
\namount in question (as of the date hereof) an amount equal to the product of (i)
\nsuch amount, multiplied by (ii) the percentage of increase, if any, in the
\nConsumer Price Index for the month in which the applicable anniversary of the
\ndate hereof occurs, over the Consumer Price Index for the month in which shall
\noccur the date hereof. “CONSUMER PRICE INDEX” shall mean the Consumer Price
\nIndex for all Urban Consumers published by the Bureau of Labor Statistics of the
\nUnited States Department of Labor, New York, New York-Northeastern New Jersey
\nArea (1982-84 = 100), or any successor index thereto, appropriately adjusted;
\nprovided that if there shall be no successor index, a substitute index shall be
\nreasonably selected by Landlord.<\/p>\n
“AFFILIATE”, of any person, shall mean a corporation,
\npartnership or other entity which controls, is controlled by or is under common
\ncontrol with such person.<\/p>\n
“AND\/OR” when applied to one or more matters or things
\nshall be construed to apply to any one or more or all thereof as the
\ncircumstances warrant at the time in question.<\/p>\n
“BASE BUILDING” shall mean (i) the structural elements of
\nthe Real Property, (ii) the walkways, plazas, stairways and all other
\nimprovements or landscaping on the Land, (iii) the pedestrian and freight and
\nservice entrances to the Building, (iv) the Building’s ground floor lobbies and
\nall equipment, improvements and fixtures therein, (v) the common and service
\nareas of the Real Property used by or available to<\/p>\n
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\ntenants and occupants, and all equipment, improvements and fixtures therein,
\n(vi) the Building’s core and its shafts, stacks, pipes, ducts and other conduits
\nand all other areas of the Building located outside of the Premises and other
\nleasable areas of the Building, and all equipment, improvements and fixtures
\ntherein, (viii) the Building Systems and all other facilities and equipment
\nwhich are used for the provision of Building Services (whether or not located in
\nthe Premises), (ix) the Core Lavatories (whether or not included in the
\nPremises), and (x) the elevator lobby and common corridors on any multi-tenant
\nfloor and all equipment, improvements and fixtures in such lobby and corridors;
\nexcluding, however, in all events, Tenant’s Improvements and Tenant’s Property
\nas well as the improvements and betterments, and the moveable personal property,
\nof other tenants of the Building.<\/p>\n
“BASE BUILDING PREMISES COMPONENTS” shall mean (I) all
\ncomponents of the Base Building which are either within or bounding the Premises
\n(including without limitation the structural elements within or bounding the
\nPremises or any portion thereof) and (II) all other components of the Base
\nBuilding which are located on one or more Premises Floors and which exclusively
\nserve such Premises Floor.<\/p>\n
“BASE PART”, of the Building, shall mean all leasable
\nareas of the Building located on second (2nd) through eighteenth (18th) floors
\nof the Building.<\/p>\n
“BUILDING SERVICES” shall mean the services required to
\nbe furnished to Tenant pursuant to the provisions of Articles 14 and 15 hereof.<\/p>\n
“BUILDING SYSTEMS” shall mean the electrical, HVAC,
\nmechanical, chilled water, sanitary, sprinkler, utility, power, plumbing,
\ncleaning, fire control, alarm and prevention systems, elevator, escalator,
\nwindow washing, waste compacting and removal, lighting, life safety and security
\nsystems of the Building (together with all related equipment), brought to (and
\nincluding), but not beyond, the point of distribution to the Premises or the
\npoint of connection to Tenant’s Improvements, provided, that all components of
\nthe Building’s perimeter HVAC systems (including the units and controls located
\nin the Premises) and all components of the Building’s sprinkler system up to and
\nincluding the main sprinkler loop on each floor and all components of the
\nBuilding’s plumbing system in or serving the Core Lavatories shall be deemed to
\nbe included in such term; excluding, however, in all events, Tenant’s
\nImprovements and Tenant’s Property as well as the improvements and betterments,
\nand the moveable personal property, of other tenants of the Building. In the
\ncase of the Building’s electrical system, the aforesaid point of distribution
\nshall be the Base Connection Points (with respect to Tenant’s Base Electricity)
\nand the Designated 20th Floor Electrical Panels (with respect to Tenant’s
\nSupplemental Electricity).<\/p>\n
“CONDOMINIUM ACT” means the provisions of Article 9-B of
\nthe Real Property Law of the State of New York, as the same may from time to
\ntime be amended, or any successor statute thereto, and any regulations
\npromulgated thereunder as the same may from time to time be amended.<\/p>\n
“CONDOMINIUM DECLARATION” shall mean, that certain
\nDeclaration, dated as of February 16, 1993 (including, without limitation, the
\nBy-Laws and all of the other Exhibits annexed thereto), establishing a plan for
\ncondominium ownership of premises located at One New York Plaza, New York, New
\nYork, pursuant to the Condominium Act, which Declaration was recorded on March
\n4, 1993 in the Register Office in Reel 1951, Page 758, as amended by that
\ncertain First Amendment of Declaration of<\/p>\n
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\n 139
\nCondominium dated March 29, 1993 and subsequently recorded in the Register’s
\nOffice, and as the same may hereafter be amended.<\/p>\n
“CONDOMINIUM PARTY” shall mean (1) the Condominium Board,
\n(2) any fee owner of one or more Units, and (3) any lessee under a ground,
\noverriding, or underlying lease demising one or more Units (including without
\nlimitation any Underlying Lessee); and “CONDOMINIUM PARTIES” shall have the
\ncorresponding plural meaning.<\/p>\n
“CONTROL” shall mean (i) in the case of a corporation,
\neither (A) ownership or voting control, directly or indirectly, of at least
\nfifty (50%) percent of all the voting stock, or (B) the power to direct the
\nmanagement and policies of such corporation, (ii) in case of a partnership or
\njoint venture, either (x) ownership, directly or indirectly, of at least fifty
\n(50%) percent of all the general or other partnership (or similar) interests
\ntherein, or (y) the power to direct the management and policies of such
\npartnership or joint venture, and (iii) in the case of any other entity, either
\n(x) ownership, directly or indirectly, of at least fifty (50%) percent of all
\nthe equity or other beneficial interest(s) therein, or (y) the power to direct
\nthe management and policies of such entity.<\/p>\n
“CORE LAVATORIES” shall mean (a) the Building’s lavatories
\nlocated on the Premises Floors and in existence of the date hereof and any
\nUnisex Lavatories installed by Landlord pursuant to Article 8 (including, in
\neither case, all toilets, urinals, partitions, flooring, tiling, sinks, piping,
\ncounters, soap dispensers, towel dispensers, trash disposal containers, and
\nother hardware, fixtures and equipment within or serving the same from time to
\ntime) and (b) the slop sink rooms located on the Premises Floors and in
\nexistence on the date hereof (including the slop sinks and other hardware,
\nfixtures and equipment within or serving the same from time to time).<\/p>\n
“FORCE MAJEURE” and\/or “EVENT(S) OF FORCE MAJEURE” shall
\nmean fire, casualty, accident, strike, lock-out or other labor trouble,
\ngovernmental preemption of priorities or other controls in connection with a
\nnational or other public emergency or shortages of fuel, supplies or labor
\nresulting therefrom, or any other cause, whether similar or dissimilar, beyond
\nLandlord’s or Tenant’s reasonable control, as the case may be; or any failure or
\ndefect in the supply, quantity or character of electricity, water, gas, steam or
\nother utility furnished to the Premises, by reason of any requirement, act or
\nomission of the public utility or municipality serving the Building with
\nelectricity, water, gas, steam or other utility (provided such public utility’s
\nact or omission was not due to Landlord’s or Tenant’s willful misconduct,
\nnegligence or failure to remit payment to such public utility or municipality),
\nor for any other reason whether similar or dissimilar, beyond Landlord’s or
\nTenant’s reasonable control, as the case may be. A party’s inability to pay
\nmoney or to obtain funding or financing shall not constitute Force Majeure or an
\nEvent of Force Majeure.<\/p>\n
“HEREIN,” “HEREOF” and “HEREUNDER,” and words of similar
\nimport, shall be construed to refer to this lease as a whole, and not to any
\nparticular Article or section, unless expressly so stated.<\/p>\n
“INITIALLY DEMISED PREMISES” shall mean the Premises as
\ninitially demised as set forth in Section 1.03 hereof.<\/p>\n
“INTEREST RATE,” when used in this lease, shall mean an
\ninterest rate equal to two percent (2%) above the so-called annual “BASE RATE”
\nof interest established and approved by The Chase Manhattan Bank (National
\nAssociation), from time to time, as its interest rate charged for unsecured
\nloans to its<\/p>\n
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\n 140
\ncorporate customers, but in no event greater than the highest lawful rate from
\ntime to time in effect.<\/p>\n
“LANDLORD PARTY” shall mean (1) any principal, partner,
\nmember, officer, stockholder, director, employee or agent of Landlord or of any
\npartner or member of any partnership constituting Landlord, disclosed or
\nundisclosed, (2) any Condominium Party and any principal, partner, member,
\nofficer, stockholder, director, employee or agent thereof, or (3) any Mortgagee
\nand any principal, partner, member, officer, stockholder, director, employee or
\nagent thereof; and “LANDLORD PARTIES” shall have the corresponding plural
\nmeaning.<\/p>\n
“LANDLORD SHALL HAVE NO LIABILITY TO TENANT” or “THE SAME
\nSHALL BE WITHOUT LIABILITY TO LANDLORD” or “WITHOUT INCURRING ANY LIABILITY TO
\nTENANT THEREFOR”, or words of similar import shall mean (unless expressly set
\nforth herein to the contrary) that Tenant is not entitled to terminate this
\nlease, or to claim actual or constructive eviction, partial, or total, or to
\nreceive any abatement or diminution of rent, or to be relieved in any manner of
\nany of its other obligations hereunder, or to be compensated for loss or injury
\nsuffered or to enforce any other right or kind of liability whatsoever against
\nLandlord under or with respect to this lease or with respect to Tenant’s use or
\noccupancy of the Premises.<\/p>\n
“LAWS AND REQUIREMENTS OF ANY PUBLIC AUTHORITIES” and
\nwords of a similar import shall mean laws and ordinances of any or all of the
\nfederal, state, city, county and borough governments and rules, regulations,
\norders and directives of any and all departments, subdivisions, bureaus,
\nagencies or offices thereof, and of any other governmental, public or
\nquasi-public authorities having jurisdiction over the Building and\/or the
\nPremises, and the direction of any public officer pursuant to law, whether now
\nor hereafter in force.<\/p>\n
“MONETARY EVENT OF DEFAULT” shall mean an Event of Default
\nunder Section 22.02(a).<\/p>\n
“MORTGAGE” shall include a mortgage and\/or a deed of
\ntrust, and the term “HOLDER OF A MORTGAGE” or “MORTGAGEE” or words of similar
\nimport shall include a mortgagee of a mortgage or a beneficiary of a deed of
\ntrust.<\/p>\n
“PERSON” shall mean any natural person or persons, a
\npartnership, a corporation, and any other form of business or legal association
\nor entity.<\/p>\n
“PREMISES FLOOR” shall mean each floor in the Tower Part
\nof the Building on which any part of the Premises is located; such floors, as of
\nthe date hereof, being the 41st, 42nd, 43rd, 44th, 45th, 46th, 48th, 49th and
\n50th floors of the Building. As used herein, (1) the term “FULL PREMISES FLOOR”
\nshall mean any Premises Floor the entire leasable area of which is within the
\nPremises, and (2) the term “PARTIAL PREMISES FLOOR” shall mean any Premises
\nFloor the leasable area of which is partly within and partly without the
\nPremises.<\/p>\n
“REQUIREMENTS OF INSURANCE BODIES” and words of similar
\nimport shall mean rules, regulations, orders and other requirements of the New
\nYork Board of Underwriters and\/or the New York Fire Insurance Rating
\nOrganization and\/or any other similar body performing the same or similar
\nfunctions and having jurisdiction or cognizance over the Building and\/or the
\nPremises, whether now or hereafter in force.<\/p>\n
“RETAIL PART” of the Building, shall mean those portions
\nof the retail concourse level of the Building (i.e., the first below grade
\nconcourse level of the Building) that are leased or leasable for retail
\npurposes.<\/p>\n
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\n 141
\n “SIMILAR BUILDINGS” shall mean buildings which contain in
\nexcess of one million rentable square feet and which are of an age and
\nconstruction similar to the Building, and which are located in the downtown
\nManhattan business district; it being understood that (i) all references to
\n“Similar Buildings” shall allow for differences amongst the Building and other
\nsuch buildings based upon the different facilities and features thereof, and
\n(ii) for so long as the Condominium is in effect or any other condominium regime
\nis applicable to the Building, references to the “Similar Buildings” shall be
\ndeemed to refer to both such other buildings that are condominiums and to other
\nsuch buildings that are not condominiums, but, in the case of the latter
\nbuildings, allowing for appropriate adjustments based upon the fact that the
\nBuilding is a condominium and such buildings are not.<\/p>\n
“STRUCTURAL ELEMENTS” shall mean the roof, the slabs, the
\nbeams, columns, girders and other structural members and connections, the
\ninterior and exterior of all exterior walls, window frames and windows and all
\nother parts of the Building’s structure and supports.<\/p>\n
“TENANT” shall mean the Tenant herein named or any
\nassignee or other successor in interest (immediate or remote) of the Tenant
\nherein named, which at the time in question is the owner of the Tenant’s estate
\nand interest granted by this lease; but the foregoing provisions of this
\nsubsection shall not be construed to permit any assignment of this lease or to
\nrelieve the Tenant herein named or any assignee or other successor in interest
\n(whether immediate or remote) of the Tenant herein named from the full and
\nprompt payment, performance and observance of the covenants, obligations and
\nconditions to be paid, performed and observed by Tenant under this lease.<\/p>\n
“TENANT PARTY” shall mean (1) any principal, partner,
\nmember, officer, stockholder, director, employee or agent of Tenant or of any
\npartner or member of any partnership constituting Tenant, disclosed or
\nundisclosed, (2) any subtenant of Tenant or any other party claiming by, through
\nor under Tenant, and any principal, partner, member, officer, stockholder,
\ndirector, employee or agent of such subtenant or such other party; and “TENANT
\nPARTIES” shall have the corresponding plural meaning.<\/p>\n
“TENANT NAMED HEREIN” shall mean The Goldman Sachs Group,
\nL.P., a Delaware limited partnership. “ORIGINAL TENANT” shall mean the Tenant
\nNamed Herein and any immediate or remote assignee under one or more assignments
\nunder Section 7.02(b) hereof.<\/p>\n
“TOWER PART”, of the Building, shall mean all leasable
\nareas of the Building located above the twentieth (20th) floor of the Building.<\/p>\n
“UNITED STATES TREASURY SECURITIES” shall mean obligations
\nof the United States Government Treasury, yields for which obligations are
\nreported in Federal Reserve Statistical Release H.15 – Selected Interest Rates.<\/p>\n
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\n 142
\n “UNTENANTABLE”, when used with respect to the Premises, or
\nany portion thereof, shall mean that (i) the Premises, or such portion thereof,
\nis not being occupied by Tenant (or any Tenant Party) for the purposes demised
\nhereunder, and (ii) either (x) the Premises, or such portion thereof, is not
\nreasonably capable of being occupied by Tenant (or any Tenant Party) for the
\npurposes demised hereunder in a reasonable manner, or (y) the Premises, or such
\nportion thereof, is not accessible by means of adequate passenger elevator
\nservice; and “TENANTABLE”, when used with respect to the Premises, or any
\nportion thereof, shall mean that the Premises, or such portion thereof, are not
\nuntenantable.<\/p>\n
ARTICLE 32<\/p>\n
No Representations by Landlord<\/p>\n
32.01. Tenant expressly acknowledges and agrees that Landlord has
\nnot made and is not making, and Tenant, in executing and delivering this lease,
\nis not relying upon, any warranties, representations, promises or statements,
\nexcept to the extent that the same are expressly set forth in this lease or in
\nany other written agreement which may be made between the parties concurrently
\nwith the execution and delivery of this lease and shall expressly refer to this
\nlease or the Premises. All understandings and agreements heretofore had between
\nthe parties are merged in this lease and any other written agreement(s) made
\nconcurrently herewith, which alone fully and completely express the agreement of
\nthe parties and which are entered into after full investigation, neither party
\nrelying upon any statement or representation not embodied in this lease or any
\nother written agreement(s) made concurrently herewith.<\/p>\n
ARTICLE 33<\/p>\n
Untenantability<\/p>\n
33.01. If, at any time during the term of this lease, (i) there
\nshall be a stoppage or interruption of one or more of the Building Services,
\n(ii) such stoppage or interruption is caused by the negligence of Landlord,
\n(iii) such stoppage or interruption is not the result of one or more Events of
\nForce Majeure and\/or one or more acts or omissions of Tenant or any Tenant
\nParty, (iv) as a result of such stoppage or interruption, the Premises (or a
\nsubstantial portion thereof, as more fully described below, that was then being
\noccupied) become untenantable, and, accordingly are vacated, and (v) Tenant
\nnotifies of Landlord of such untenantability and vacation, then Tenant, as its
\nremedy, shall be entitled to an abatement of Fixed Rent, the Operating
\nPayment(s) and the Base Component of Tax Payment(s) otherwise payable hereunder
\nin respect of the Premises (or such substantial portion thereof) for the period
\ncommencing on the date of such untenantability and vacation (or, if later the
\ndate that Tenant notifies Landlord thereof) and ending on the date upon which
\nthe Premises (or such substantial portion thereof) is no longer untenantable.
\nFor purposes of this Section 33.01, a substantial portion of the Premises shall
\nbe deemed to mean any portion of the Premises which consists of at least 5,000
\ncontiguous rentable square feet.<\/p>\n
ARTICLE 34<\/p>\n
Holdover<\/p>\n
34.01. (a) If Tenant shall remain in possession of the Premises
\nafter the expiration or earlier termination of the term of this lease, then,
\nthroughout the period commencing on<\/p>\n
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\n 143
\nsuch expiration or earlier termination and continuing until Tenant shall fully
\nvacate the entire Premises (such period being herein called the “HOLDOVER
\nPERIOD”), Tenant shall be deemed a holdover tenant and shall be liable to
\nLandlord for rent, or a charge in respect of use and occupancy, at a per diem
\nrate, for each day of the Holdover Period, equal to (I) the Holdover Factor (as
\nhereinafter defined) for such day of the Holdover Period, multiplied by (II) the
\naverage per diem rate of Fixed Rent and Additional Charges payable by Tenant
\nduring the last year of the term of this lease (i.e., the year immediately prior
\nto the Holdover Period). As used herein, the term “HOLDOVER FACTOR” shall mean
\nthe following numbers for the following periods: (i) for the first three (3)
\nmonths of the Holdover Period, either (x) 1.25, if Tenant’s holdover was the
\nresult of one or more Events of Force Majeure, or (y) 1.50, in any other event;
\n(ii) for the next three (3) months of the Holdover Period (i.e., the 4th through
\n6th months of the Holdover Period), 1.50; and (iii) for the balance of the
\nHoldover Period (i.e., all portions thereof occurring after the 6th month of the
\nHoldover Period), 2.00. In addition to the foregoing, Landlord shall be entitled
\nto recover from Tenant any losses or damages arising from such holdover,
\nexcluding damages arising from any loss or cancellation of any other lease of
\nthe Premises or any part thereof and all other consequential damages on account
\nthereof.<\/p>\n
(b) Anything to the foregoing notwithstanding, the
\nacceptance of any rent paid by Tenant pursuant to Section 34.01(a) above shall
\nnot preclude Landlord from commencing and prosecuting a holdover or summary
\neviction proceeding, and the preceding sentence shall be deemed to be an
\n“agreement expressly providing otherwise” within the meaning of Section 223-c of
\nthe Real Property Law of the State of New York.<\/p>\n
(c) If Tenant shall hold-over or remain in possession of
\nany portion of the Premises beyond the expiration or earlier termination of this
\nlease, Tenant shall be subject not only to summary proceedings, but shall also
\nbe liable for all damages related thereto, excluding damages arising from any
\nloss or cancellation of any other lease of the Premises or any part thereof and
\nall other consequential damages. All damages to Landlord by reason of such
\nholding over by Tenant may be the subject of a separate action and need not be
\nasserted by Landlord in any summary proceedings against Tenant.<\/p>\n
ARTICLE 35<\/p>\n
Miscellaneous Provisions and Definitions<\/p>\n
35.01. No agreement shall be effective to change, modify, waive,
\nrelease, discharge, terminate or effect an abandonment of this lease, in whole
\nor in part, including, without limitation, this Section 35.01, unless such
\nagreement is in writing, refers expressly to this lease and is signed by the
\nparty against whom enforcement of the change, modification, waiver, release,
\ndischarge, termination or effectuation of the abandonment is sought. If Tenant
\nshall at any time request Landlord to sublet the Premises for Tenant’s account,
\nLandlord or its agent is authorized to receive keys for such purposes without
\nreleasing Tenant from any of its obligations under this lease, and Tenant hereby
\nreleases Landlord of any liability for loss or damage to any of the Tenant’s
\nProperty in connection with such subletting.<\/p>\n
35.02. Except as otherwise expressly provided in this lease, the
\nobligations of this lease shall bind and benefit the successors and assigns of
\nthe parties hereto with the same effect as if mentioned in each instance where a
\nparty is named or referred to; provided, however, that (a) no violation of the
\nprovisions of Article 7 shall operate to vest any rights in any<\/p>\n
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\n 144
\nsuccessor or assignee of Tenant and (b) the provisions of this Section 35.02
\nshall not be construed as modifying the conditions of limitation contained in
\nArticle 22.<\/p>\n
35.03. Tenant shall look only to Landlord’s estate and interest in
\nthe Land and the Building for the satisfaction of Tenant’s remedies, for the
\ncollection of a judgment (or other judicial process) requiring the payment of
\nmoney by Landlord in the event of any default by Landlord hereunder, and no
\nother property or assets of Landlord or its partners, officers, directors,
\nshareholders or principals, disclosed or undisclosed, shall be subject to levy,
\nexecution or other enforcement procedure for the satisfaction of Tenant’s
\nremedies under or with respect to this lease, the relationship of Landlord and
\nTenant hereunder or Tenant’s use or occupancy of the Premises.<\/p>\n
35.04. (a) The obligations of Tenant hereunder shall be in no
\nwise affected, impaired or excused, nor shall Landlord have any liability
\nwhatsoever to Tenant, nor shall it be deemed a constructive eviction to the
\nextent that Landlord is unable to fulfill, or is delayed in fulfilling, any of
\nits obligations under this lease by reason of Force Majeure.<\/p>\n
(b) The obligations of Landlord hereunder shall be in no
\nwise affected, impaired or excused, nor shall Tenant have any liability
\nwhatsoever to Landlord, to the extent that Tenant is unable to fulfill, or is
\ndelayed in fulfilling, any of its obligations under this lease by reason of
\nForce Majeure and nor shall the same give rise to any default or conditional
\nlimitation under Article 22.<\/p>\n
(c) If this lease specifies a time period for performance
\nof an obligation by any party, that time period shall be extended by the period
\nof any delay in such party’s performance caused by Force Majeure, except that
\n(i) in any instance under this lease in which either party has a termination,
\ncancellation, rescission or revocation right, the dates on which or the
\ncircumstances under which such party may exercise such right shall not be
\naffected even if the other party suffers Force Majeure (except to the extent
\nexpressly so provided), (ii) in any instance under this lease in which Tenant
\nhas the right to an abatement of, or a credit against, Fixed Rent or Additional
\nCharges, the dates in respect of which, the circumstances under which and the
\namount of such abatement shall not be affected even if Landlord suffers Force
\nMajeure (except to the extent expressly so provided), and (iii) the date on
\nwhich any party must furnish any notice or information, make any election, or
\nexercise any right shall not be affected even if such party suffers Force
\nMajeure (except to the extent expressly so provided).<\/p>\n
35.05. The obligations of Landlord and Tenant with respect to all
\nperiods prior to the expiration or other termination of this lease, including
\nwithout limitation the obligation to pay, and\/or to refund overpayments of,
\nFixed Rent and Additional Charges, shall survive the expiration or other
\ntermination of this lease.<\/p>\n
35.06. (a) Neither Landlord nor Tenant shall record this lease or
\nany instrument modifying this lease. From and after the date hereof, however,
\nLandlord, at the request of Tenant, shall, within thirty (30) days after such
\nrequest, execute, acknowledge and deliver (i) a memorandum of lease in respect
\nof this lease and a memorandum of amendment of lease in respect of any amendment
\nof this lease, sufficient for recording and in form reasonably satisfactory to
\nLandlord, which memorandum may be recorded by Tenant, and (ii) any other
\ninstrument(s) necessary to the effective recordation of such memorandum of lease
\nor memorandum of amendment of lease, as the case may be; provided, however, that
\nTenant shall pay for all costs, taxes<\/p>\n
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\n 145
\nand\/or other expenses necessary for the effective recordation of any such
\nmemorandum. Notwithstanding the foregoing, no such memorandum described in this
\nSection 35.06 shall recite the amounts or rates of Fixed Rent or Additional
\nCharges payable hereunder. In no event, shall any memorandum of this lease or
\nany amendment hereof be deemed to change or otherwise affect any of the
\nobligations or provisions of this lease or such amendment hereof.<\/p>\n
(b) In the event of a termination of this lease, Tenant,
\nwithin thirty (30) days of the date of such termination, shall execute,
\nacknowledge and deliver to Landlord all necessary instrument(s) in recordable
\nform evidencing a termination of this lease and sufficient to discharge any
\nmemorandum hereof, and any memorandum of any amendment hereof, of record, and
\nTenant shall pay for all costs, taxes and\/or expenses necessary to the effective
\nrecordation of such instrument(s). If there occurs a termination of this lease
\nand Tenant shall fail, for any reason whatsoever, to execute all of the
\naforementioned instrument(s) within the aforementioned 30-day period, then,
\nwithout limiting any other rights or remedies that Landlord may have on account
\nthereof, (i) Landlord shall be deemed to be and Tenant hereby irrevocably
\nappoints Landlord, Tenant’s attorney-in-fact, coupled with an interest, to
\nexecute such instrument(s) in the name of Tenant and on Tenant’s behalf and any
\nother instrument(s) necessary to the effective recordation of such instrument(s)
\nand the discharge of record of any memorandum or memoranda, (ii) Tenant shall
\npay for all costs, taxes and\/or expenses necessary to effectuate the recordation
\nof all such instrument(s), and (iii) Tenant shall be liable for all damages that
\nLandlord incurs as a result of Tenant’s failure (including without limitation,
\nand notwithstanding the provisions of Section 18.03 hereof, consequential
\ndamages; except that any such failure by Tenant during a period that Tenant is
\nin possession of the Premises shall not subject to Tenant to consequential
\ndamages so long as such failure results from Tenant’s good faith belief that the
\nlease is in full force and effect during such period of possession).<\/p>\n
35.07. If Tenant shall request Landlord’s consent or approval and
\nLandlord shall fail or refuse to give such consent or approval, Tenant shall not
\nbe entitled to any damages or any other remedy for any such failure or refusal
\nby Landlord to grant its consent or approval; provided, however, that in those
\ncases where Landlord has expressly agreed in writing not to unreasonably
\nwithhold its consent or approval, or where as a matter of law Landlord may not
\nunreasonably withhold its consent or approval, Tenant shall have the right, as
\nits sole and exclusive remedies, to dispute Landlord’s failure or refusal to
\ngrant its consent or approval either (i) by prosecuting an action for specific
\nperformance, injunction and\/or damages (provided that Tenant shall be entitled
\nto damages if and only if Landlord acted in bad faith in failing or refusing to
\ngrant its consent or approval) or (ii) by submitting such dispute to arbitration
\nin accordance with Article 40 hereof. The remedies described in clause (i) and
\nin clause (ii) of the preceding sentence are mutually exclusive. Tenant may
\nelect the remedy set forth in clause (ii) above only by sending written notice
\nthereof to Landlord within fifteen (15) Business Days after Tenant’s receipt of
\nthe applicable denial of the consent or approval by Landlord, and, in each such
\ncase, the sole issue to be resolved by such arbitration shall be whether
\nLandlord’s denial of consent or approval was reasonable.<\/p>\n
35.08. If an excavation shall be made upon land adjacent to or under
\nthe Building, or shall be authorized to be made, Tenant shall afford to the
\nperson causing or authorized to cause such excavation, license to enter the
\nPremises for the purpose of performing such work as is reasonably necessary to
\npreserve and protect the Building from injury or damage to<\/p>\n
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\n 146
\nsupport the same by proper foundations, without any claim for damages or
\nliability against Landlord and without reducing or otherwise affecting Tenant’s
\nobligations under this lease.<\/p>\n
35.09. Landlord represents that the floor load per square foot which
\neach of the Premises Floors is designed to carry is as set forth on the Existing
\nCertificate of Occupancy annexed hereto as Exhibit N. Tenant shall not place a
\nload upon any floor of the Premises which violates applicable law or the
\nCertificate of Occupancy of the Building or which exceeds the floor load per
\nsquare foot which such floor was designed to carry or which such floor is
\nreinforced to carry. All heavy material and\/or equipment must be placed by
\nTenant, at Tenant’s expense, so as to distribute the weight. Business machines
\nand mechanical equipment shall be placed and maintained by Tenant, at Tenant’s
\nexpense, in settings sufficient in Landlord’s reasonable judgment to absorb and
\nprevent vibration, noise and annoyance. If the Premises be or become infested
\nwith vermin as a result of the use or any misuse or neglect of the Premises by
\nTenant, its agents, employees, visitors or licensees, Tenant shall at Tenant’s
\nexpense cause the same to be exterminated from time to time to the reasonable
\nsatisfaction of Landlord and shall employ such exterminators and such
\nexterminating company or companies as shall be reasonably approved by Landlord.<\/p>\n
35.10. The submission by Landlord of this lease in draft form shall
\nbe deemed submitted solely for Tenant’s consideration and not for acceptance and
\nexecution. Such submission shall have no binding force or effect and shall
\nconfer no rights nor impose any obligations, including brokerage obligations, on
\neither party unless and until both Landlord and Tenant shall have executed the
\nlease and duplicate originals thereof shall have been delivered to the
\nrespective parties.<\/p>\n
35.11. Irrespective of the place of execution or performance, this
\nlease shall be governed by and construed in accordance with the laws of the
\nState of New York. If any provisions of this lease or the application thereof to
\nany person or circumstance shall, for any reason and to any extent, be invalid
\nor unenforceable, the remainder of this lease and the application of that
\nprovision to other persons or circumstances shall not be affected but rather
\nshall be enforced to the extent permitted by law. The table of contents,
\ncaptions, headings and titles in this lease are solely for convenience of
\nreferences and shall not affect its interpretation. This lease shall be
\nconstrued without regard to any presumption or other rule requiring construction
\nagainst the party causing this lease to be drafted. All terms and words used in
\nthis lease, shall be deemed to include any other number and any other gender as
\nthe context may require.<\/p>\n
35.12. If under the terms of this lease Tenant is obligated to pay
\nLandlord a sum in addition to the Fixed Rent under the lease and no payment
\nperiod therefor is specified, Tenant shall pay Landlord the amount due within
\nthirty (30) days after being billed.<\/p>\n
35.13. (a) Tenant represents and warrants that this lease has
\nbeen duly authorized, executed and delivered by Tenant and constitutes the
\nlegal, valid and binding obligation of Tenant.<\/p>\n
(b) Landlord represents and warrants that this lease has
\nbeen duly authorized, executed and delivered by Landlord and constitutes the
\nlegal, valid and binding obligation of Landlord.<\/p>\n
35.14. If any sales or other tax is payable with respect to any
\ncleaning or other services which Tenant purchases directly from any third party
\nor parties, Tenant shall file any<\/p>\n
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\n 147
\nrequired tax returns and shall pay any such tax, and Tenant shall indemnify and
\nhold Landlord harmless from and against any loss, damage or liability suffered
\nor incurred by Landlord on account thereof.<\/p>\n
35.15. (a) Landlord shall use reasonable efforts to (i) conduct
\n(or cause to be conducted) any entry into the Premises permitted under this
\nlease, and (ii) perform any work (i.e., alterations, additions, improvements,
\nrepairs and replacements) performed by Landlord in the Building (or cause to be
\nperformed any work performed by persons authorized by Landlord on any Building
\nSystem) (including without limitation any entry pursuant to, or work performed
\nunder, Article 16 hereof) (including without limitation any work performed by
\nLandlord pursuant to Section 35.15(c) below), in a manner so as to minimize the
\ninconvenience or interference with the operation of Tenant’s business in the
\nPremises that may occasioned by the performance of such entry or work; provided,
\nhowever, that Landlord shall not be obligated to continuously perform (or cause
\nto be continuously performed) any work and shall not be liable for any
\ninterruptions of any work, nor shall Landlord be obligated to employ contractors
\nor labor at so-called overtime or premium pay rates or to incur any other
\novertime costs and expenses in connection therewith.<\/p>\n
(b) Notwithstanding the provisions of Section 35.15(a)
\nabove, if (i) any work described in Section 35.15(a)(ii) above is being
\nperformed, or is to be performed, on any Premises Floor or does or will
\nadversely impact the provision of Building Services to Tenant during Business
\nHours, and (ii) Tenant shall request that such work, or any separable portion
\nthereof, be performed at times other than Business Hours (any such work
\ndescribed in such a request by Tenant being herein called “DESIGNATED WORK”),
\nthen, and in each such case, the following provisions shall apply with respect
\nto such Designated Work:<\/p>\n
(1) Landlord, except in the case of an actual or
\n perceived emergency, shall perform (or cause to be performed) the
\n Designated Work outside of Business Hours (even if overtime or premium pay
\n rates be thus incurred), so long as (x) doing so will not have an adverse
\n impact on any other tenant of the Building as to the operation of its
\n business during Business Hours, and (y) overtime labor is reasonably
\n available; and<\/p>\n
(2) (A) if, pursuant to this lease or any separate
\n agreement between Landlord and Tenant, the cost of any Designated Work is
\n to be borne by Tenant, then Tenant, within thirty (30) days after its
\n receipt of a demand therefor, shall pay to Landlord all of the costs that
\n Landlord incurs in connection with the performance of such work, including
\n without limitation (I) all of the Overtime Costs (as hereinafter defined)
\n with respect to such Designated Work, and (II) if Tenant’s aforesaid
\n request is received after Landlord shall have commenced or scheduled the
\n performance of such Designated Work, rescheduling charges; or<\/p>\n
(B) if Tenant is not to bear the costs of such
\n work pursuant to this lease or any separate agreement between Landlord and
\n Tenant, then (i) in any case where the performance of such work (or any
\n portion thereof) during Business Hours would have resulted in substantial
\n interference with the operation of Tenant’s business in the Premises
\n during Business Hours, Tenant shall have no obligation to pay the Overtime
\n Costs with respect to such Designated Work (but if Tenant’s aforesaid
\n request is received after Landlord shall have commenced or scheduled the
\n performance of such Designated Work, then Tenant shall reimburse Landlord
\n any rescheduling charges), or (ii) in any<\/p>\n
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\n other case, Tenant, within thirty (30) days after its receipt of a demand
\n therefor, shall pay to Landlord (x) all of the Overtime Costs (as
\n hereinafter defined) with respect to such Designated Work, and (y) if
\n Tenant’s aforesaid request is received after Landlord shall have commenced
\n or scheduled the performance of such Designated Work, rescheduling
\n charges.<\/p>\n
As used herein, “OVERTIME COSTS”, with respect to any work performed at times
\nother than Business Hours on Business Days, shall mean any and all additional
\ncosts Landlord incurs by reason of performing such work at such times other than
\nBusiness Hours on Business Days (including without limitation incremental
\novertime and premium pay rates), including without limitation, all the costs of
\nany stand-by personnel required in connection therewith (including, without
\nlimitation, operating engineers and stand-by electricians).<\/p>\n
(c) If (i) a Building System which provides
\nelectricity, chilled water, make-up water, domestic water, HVAC or passenger
\nelevator service to the Premises or otherwise to Tenant shall breakdown or
\notherwise be rendered incapable of providing the Building Services provided
\nthereby at the levels required hereunder, and (ii) Landlord, pursuant to the
\nprovisions of Article 13 hereof, shall be obligated to repair or replace such
\nBuilding System, then Landlord, at its expense, shall perform such work both
\nduring Business Hours and after Business Hours (it being agreed that Landlord
\nshall have both the right and the obligation to do so), except to the extent
\nthat (x) Landlord, in its reasonable judgement, does not believe that performing
\nsuch work after Business Hours will result in the restoration of the applicable
\nBuilding Services on an earlier date, or (y) overtime labor is not reasonably
\navailable. The provisions of this Section 35.15(c) shall override any
\ninconsistent provisions of Section 35.15(a) and (b) above.<\/p>\n
(d) If, pursuant to this lease or any separate agreement
\nbetween Landlord and Tenant, the cost of any work undertaken by Tenant in the
\nBuilding is to be borne by Landlord, then, notwithstanding anything contained
\nherein to the contrary, Landlord shall have no obligation to pay any Overtime
\nCosts with respect to any such work performed outside of Business Hours on
\nBusiness Days.<\/p>\n
35.16. Tenant acknowledges that it has no rights to any development
\nrights, “air rights” or comparable rights appurtenant to the Real Property, and
\nconsents, without further consideration, to any utilization of such rights by
\nLandlord and agrees to promptly execute and deliver any instruments which may be
\nrequested by Landlord, including instruments merging zoning lots, evidencing
\nsuch acknowledgment and consent. The provisions of this Section 35.16 shall be
\ndeemed to be and shall be construed as an express waiver by Tenant of any
\ninterest Tenant may have as a “party in interest” (as such quoted term is
\ndefined in Section 12-10 Zoning Lot of the Zoning Resolution of the City of New
\nYork) in the Real Property.<\/p>\n
35.17. Tenant agrees that, without Landlord’s consent in each
\ninstance, neither it nor any Affiliate of Tenant, nor any agent or employee of
\nTenant or any Affiliate of Tenant, shall disclose any of the terms of this lease
\n(other than the amount of space leased hereby) to any other person, other than
\nas and when required by law, or to its accountants or attorneys, its actual or
\nprospective assignees, its actual or prospective subtenants, or to real estate
\nbrokers, auditors or consultants advising Tenant, or to governmental agencies or
\nrecognized credit rating agencies. Furthermore, Tenant agrees that, without
\nLandlord’s consent in each instance, neither it nor any Affiliate of Tenant
\nshall issue or authorize any advertising or press release referring to Landlord
\n(by name) or the Building in connection<\/p>\n
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\nwith either the consummation of this lease or the occupancy of Tenant in the
\nBuilding.<\/p>\n
35.18. In the event of a breach or threatened breach by Landlord of
\nany of its obligations under this lease, Tenant shall also have the right of
\ninjunction. The special remedies to which Tenant may resort hereunder are
\ncumulative and are not intended to be exclusive of any other remedies to which
\nTenant may lawfully be entitled at any time and Tenant may invoke any remedy
\nallowed at law or in equity as if specific remedies were not provided for
\nherein; provided, however, that this sentence shall not be deemed to authorized
\nTenant to recover any damages, or exercise any remedy, expressly denied by any
\nother provision of this lease.<\/p>\n
35.19. Landlord agrees that, without Tenant’s consent in each
\ninstance, neither it, nor any Landlord Party nor any Affiliate of Landlord
\n(including Edward S. Gordon Company, Inc. or any other leasing or managing
\nagent) shall use Tenant’s Name in any signage, in any advertising, in any
\npromotional materials (including any materials prepared for or used in
\nconnection with offering the Building or any space therein or any interest
\ntherein for lease or purchase or as security for any financing) or in any press
\nrelease, publicity or communication with or to the press, in any case, in any
\nway or respect, referring or otherwise relating to this lease, the Building ore
\nTenant’s occupancy in the Building; provided, however, that<\/p>\n
(1) any of such persons may, in response to inquiries
\n from the press, confirm the fact that Tenant has entered into a lease for
\n space in the Building and the amount of such space (but, whether or not in
\n response to any such inquiry, none of such persons shall disclose or
\n confirm any of the other terms of this lease);<\/p>\n
(2) Landlord may include in promotional materials the
\n fact that Tenant has entered into a lease for space in the Building, and
\n the amount of such space (but none of the other terms of this lease),
\n provided that such materials are not prepared for, and are not used in
\n connection with, promoting or offering the Building or any space in the
\n Building for lease or purchase for purposes of occupancy; and<\/p>\n
(3) Landlord may disclose the terms of this lease to,
\n and may furnish a copy of this lease to, any purchaser, lender or, to the
\n extent that the same may be relevant thereto, tenant provided that such
\n prospective purchaser, lender or tenant has executed and delivered to
\n Landlord a written confidentiality agreement prohibiting its disclosing
\n any of the information or materials so provided (it being understood that
\n any such confidentiality agreement may permit disclosure (x) if and to the
\n extent required by applicable law, (y) to attorneys, accountants or other
\n professional advisors agreeing in writing to be bound by the terms of such
\n confidentiality agreement, or (z) of any information already in the public
\n domain).<\/p>\n
As used herein, the term “TENANT’S NAME” shall mean the name of Tenant, any
\nidentifying portion thereof, any abbreviation thereof, or any logo or symbol of
\nTenant.<\/p>\n
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\n ARTICLE 36<\/p>\n
Parking<\/p>\n
36.01. For purposes of this Article 36, the following terms shall
\nhave the following meanings:<\/p>\n
“BUILDING PARKING GARAGE” shall mean the current parking
\n garage located in the Building and containing approximately 200 parking
\n spaces.<\/p>\n
“GARAGE OPERATOR” shall mean the person that is in charge
\n of the operation of the Building Parking Garage, whether by lease, license
\n or other agreement with Landlord or otherwise.<\/p>\n
“PARKING PRIVILEGE” shall mean the right to park, or have
\n parked, a car or a similar sized vehicle in a single parking space in the
\n Building Parking Garage.<\/p>\n
“ELIGIBLE PERSON” shall mean any person that is a partner,
\n principal, director, officer or employee of Tenant, excluding, however,
\n any such person whose Eligible Person status is terminated pursuant to
\n Section 36.05 below.<\/p>\n
“DESIGNATED USER”, of any Tenant Parking Privilege, shall
\n mean, from time to time, the Eligible Person then designated by Tenant to
\n utilize such Tenant Parking Privilege pursuant to the provisions of
\n Section 36.03 below (i.e., by notice to Landlord as described in Section
\n 36.03).<\/p>\n
The “THRESHOLD NUMBER”, as of any date, shall mean the
\n excess of (i) the number of rentable square feet in the Premises as of
\n such date, divided by 12,000, over (ii) four (4).<\/p>\n
The “EXCESS NUMBER”, as of any date, shall mean the excess
\n of (i) the number of Tenant’s Parking Privileges in effect as of such
\n date, over (ii) the Threshold Number as of such date.<\/p>\n
36.02. (a) Landlord, subject to the provisions of this Article
\n36, hereby grants to Tenant, and Tenant hereby accepts, 31 Parking Privileges
\n(herein collectively called “TENANT’S PARKING PRIVILEGES”) for the term of this
\nlease, it being agreed that each Tenant’s Parking Privilege may be utilized
\nsolely by the Designated User thereof.<\/p>\n
(b) Tenant, from time to time during the term of this
\nlease, may terminate one or more of Tenant’s Parking Privileges by giving
\nLandlord written notice thereof, which notice shall set forth the date of
\ntermination, which date shall be not less than 90 days, nor more than 180 days,
\nafter the date of such notice; once a Tenant’s Parking Privilege shall be so
\nterminated, neither Tenant nor any Designated User shall have any further rights
\nin respect of such Parking Privilege (and, without limiting the generality of
\nthe foregoing, Tenant shall have no right to have the same re-granted or
\nre-issued to it or to have any other Parking Privilege(s) granted or issued to
\nit in substitution therefor or otherwise).<\/p>\n
(c) If, at any time during the term of this lease, the
\nnumber of Tenant’s Parking Privileges shall exceed the Threshold Number, then
\nLandlord, at its option, may elect to terminate one or more of Tenant’s Parking
\nPrivileges, up to a maximum of the then Excess Number of Tenant’s Parking
\nPrivileges, by giving Tenant written notice thereof. Any such notice shall set
\nforth the date of termination, which date shall be not less than 30 days, nor
\nmore than 90 days, after the date of such<\/p>\n
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\n 151
\nnotice; once a Tenant’s Parking Privilege shall be so terminated, neither Tenant
\nnor any Designated User shall have any further rights in respect of such Parking
\nPrivilege (and, without limiting the generality of the foregoing, Tenant shall
\nhave no right to have the same re-granted or re-issued to it or to have any
\nother Parking Privilege(s) granted or issued to it in substitution therefor or
\notherwise).<\/p>\n
(d) Upon the expiration or earlier termination of this
\nlease, any Tenant’s Parking Privileges then in effect shall be automatically
\nterminated.<\/p>\n
36.03. Tenant shall not permit any person to utilize any Tenant’s
\nParking Privilege other than the Designated User thereof. Each Designated User
\nshall be an Eligible Person. Tenant, within thirty (30) days after the date
\nhereof, shall submit to Landlord a notice designating the initial Designated
\nUsers of each of Tenant’s Parking Privileges (which notice shall include the
\nname, address and position of each Designated User and such information
\nregarding the license plate and make and model of such Designated User’s car as
\nLandlord may reasonably require). Tenant, from time to time during the term of
\nthis lease, may change the Designated User of any Tenant’s Parking Privilege by
\ngiving Landlord written notice thereof. If, at anytime during the term of this
\nlease, any person that is a Designated User as to any Tenant’s Parking Privilege
\nshall cease to be an Eligible Person (either because such person ceases to be a
\npartner, principal, director, officer or employee of Tenant or because such
\nperson has had its status as an Eligible Person terminated pursuant to Section
\n36.05 hereof), then such person shall thereupon cease to be a Designated User,
\nbut Tenant may designate a replacement Designated User by notice as aforesaid.<\/p>\n
36.04. Notwithstanding anything hereinabove contained to the
\ncontrary, Tenant’s Parking Privileges and the utilization thereof by any
\nDesignated User shall be subject to the following provisions:<\/p>\n
(a) Parking in the Building Parking Garage, from time to
\ntime, at the option of Landlord or the Garage Operator, may be by means of
\neither self-parking or valet parking.<\/p>\n
(b) Parking in the Building Parking Garage, from time to
\ntime, at the option of Landlord or the Garage Operator, may be on a reserved or
\non a non-reserved basis, or on a partly reserved and partly non-reserved basis.<\/p>\n
(c) Landlord or the Garage Operator may require each
\nDesignated User to use reasonable visible identification (e.g., bumper decal,
\nwindow sticker, or pass) to evidence authorized use thereof.<\/p>\n
(d) Landlord or the Garage Operator may require each
\nDesignated User to execute a parking agreement (each, a “PARKING AGREEMENT”) in
\nconnection with its utilization of a Tenant’s Parking Privilege, which agreement
\nshall be reasonable in form and content; in which event, Tenant shall cause such
\nDesignated User to execute such Parking Agreement within thirty (30) days after
\nrequest therefor from Landlord or the Garage Operator.<\/p>\n
(e) Each Designated User shall comply with all reasonable
\nrules and regulations as may from time to time be promulgated by Landlord or the
\nGarage Operator (herein called the “PARKING REGULATIONS”).<\/p>\n
(f) Neither Landlord nor the Garage Operator shall be
\nobligated to police or provide security to the Building Parking Garage (or any
\npart thereof) or to any points of access<\/p>\n
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\nwhich may connect the same to other areas of the Building. Neither Landlord nor
\nthe Garage Operator shall have any responsibility for any injury, loss, theft or
\ndamage, howsoever caused, to persons or property occurring in the Building
\nParking Garage or arising out of or attributable to the utilization of the
\nBuilding Parking Garage by the Designated Users or any other persons.<\/p>\n
36.05. If (i) a Designated User shall violate such person’s Parking
\nAgreement and, as a result thereof, Landlord or the Garage Operator, as the case
\nmay be, shall terminate such Parking Agreement, (ii) a Designated User shall
\nviolate the Parking Regulations on more than two (2) occasions, or (iii) a
\nDesignated User shall otherwise violate (or cause Tenant to violate) the
\nprovisions of this Article 36, then Landlord, in any of such events, may, at
\nanytime thereafter, terminate such Designated User’s status as an Eligible
\nPerson and, in any such event, such Designated User shall thereupon cease to be
\nan Eligible Person or a Designated User and may never again be an Eligible
\nPerson or a Designated User.<\/p>\n
36.06. Tenant, in respect of Tenant’s Parking Privileges from time
\nto time in effect, shall pay to Landlord (or, at Landlord’s direction, to the
\nGarage Operator), as Additional Charges, as and when Fixed Rent is payable, a
\nmonthly charge for each such Tenant’s Parking Privilege equal to Landlord’s or
\nthe Garage Operator’s then established monthly charges for Parking Privileges.<\/p>\n
ARTICLE 37<\/p>\n
Tenant’s Termination Right<\/p>\n
37.01. Subject to and in accordance with the provisions of this
\nArticle 37, Tenant shall have the one-time right (the “TERMINATION RIGHT”) to
\nterminate this lease as to the entire Premises or as to any Terminable Portion
\n(as hereinafter defined), effective as of the Early Termination Date (as
\nhereinafter defined), in consideration of the payment by Tenant to Landlord of
\nthe Termination Fee (as hereinafter defined) as hereinafter provided. References
\nin this Article 37 to the “Premises” shall be deemed to refer to the Premises as
\nof the date of Tenant’s Termination Notice (after giving effect to any
\ntermination of this lease in part pursuant to Article 7 hereof which either (x)
\nhas theretofore occurred or (y) will thereafter occur pursuant to a Recapture
\nOption theretofore exercised by Landlord).<\/p>\n
37.02. (a) Tenant may exercise the Termination Right only by
\nrendering written notice thereof (“TENANT’S TERMINATION NOTICE”) to Landlord,
\nwhich notice (i) shall be received by Landlord not earlier than December 1, 1996
\nand not later than November 30, 1997 (time being of the essence with respect to
\nLandlord’s receipt of Tenant’s Termination Notice), (ii) shall indicate whether
\nTenant is exercising the Termination Right as to the entire Premises or a
\nTerminable Portion thereof, and, in any latter case, shall describe and
\ndelineate the Terminable Portion, (iii) shall set forth the date that Tenant
\ndesires to have this lease terminate (in whole or in part, as the case may be),
\nwhich date shall be a date occurring after the fifth (5th) anniversary of the
\nFixed Rent Commencement Date and prior to the Initial Expiration Date, and shall
\nbe the last day of a calendar month (such date being herein called the “EARLY
\nTERMINATION DATE”), (iv) shall, in any case that Original Tenant (as Tenant
\nhereunder) or an Affiliate of Original Tenant (as Tenant hereunder) is
\nexercising the Termination Right as to the entire Premises, indicate either (x)
\nthat Original Tenant and\/or one or more of its Affiliates have, prior to the
\ndate of such notice, completed a Qualified Relocation, (y) that Original Tenant
\nand\/or<\/p>\n
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\n 153
\none or more of its Affiliates have not, prior to the date of such notice,
\ncompleted a Qualified Relocation, but that Tenant believes that Original Tenant
\nand\/or one or more of its Affiliates will complete a Qualified Relocation after
\nthe date of such notice, or (z) that Original Tenant and\/or one or more of its
\nAffiliates have not completed a Qualified Relocation prior to the date of such
\nnotice and that Tenant does not believe that Original Tenant and\/or one or more
\nof its Affiliates will do so after the date of such notice, and (v) shall be
\naccompanied by Tenant’s good and sufficient check(s) in the amount of the
\nPreliminary Termination Fee Payment (as hereinafter defined); provided, however,
\nthat if Tenant’s Termination Notice shall be accompanied by Tenant’s good and
\nsufficient check (made payable to Landlord) for an amount which Tenant believes
\nin good faith to be equal to the Preliminary Termination Fee Payment and which
\nTenant believes in good faith to have computed in a manner consistent with the
\ncontent of Tenant’s Termination Notice, then such Tenant’s Termination Notice
\nshall be valid even if the amount of such check(s) differs from the amount of
\nthe Preliminary Termination Fee Payment; provided, further, however, that in
\nsuch event, Tenant shall remain liable to Landlord for any underpayment of the
\nPreliminary Termination Fee Payment (without interest, except in the case
\ndescribed in Section 37.03(a) below), and Landlord shall be liable to Tenant for
\nany overpayment of the Preliminary Termination Fee Payment (without interest),
\nand, in either case, such reconciliation payment shall be made promptly after
\ndemand therefor.<\/p>\n
(b) Notwithstanding the foregoing, any Tenant’s
\nTermination Notice shall be null and void (and, accordingly, such notice shall
\nnot be effective to exercise the Termination Right as it so purports to
\nexercise), if, as of the date Landlord receives such notice, this lease shall
\nhave theretofore been canceled or terminated (including without limitation a
\ntermination pursuant to Article 22 hereof, but excluding a termination of this
\nlease in part pursuant to Article 7 or 20 hereof). In addition, if, as of the
\ndate Landlord receives any Tenant’s Termination Notice, Landlord, in good faith,
\nreasonably believes that a monetary Event of Default shall have theretofore
\noccurred and is then continuing, Landlord, at its option, may render the
\nTenant’s Termination Notice null and void (and, accordingly, the Tenant’s
\nTermination Notice shall not be effective to exercise the Termination Right as
\nit so purports to exercise) by giving written notice thereof to Tenant no later
\nthan ten (10) Business Days after Landlord’s receipt of the Tenant’s Termination
\nNotice (which notice is herein called “LANDLORD’S SECTION 37.02(B) NOTICE”),
\nwhich Landlord’s Section 37.02(b) Notice shall set forth Landlord’s
\ndetermination of the amount of such monetary Event of Default, i.e., the amount
\nthen due and owing to Landlord as to which such Event of Default has occurred
\nand is continuing (which amount is herein called the “ALLEGED DEFAULT AMOUNT”);
\nprovided, however, that Tenant may reinstate Tenant’s Termination Notice (and
\nthe same shall then again be effective to exercise the Termination Right as it
\nso purports to exercise) by giving written notice thereof to Landlord no later
\nthan ten (10) Business Days after Tenant receipt of Landlord’s Section 37.02(b)
\nNotice (which notice is herein called “TENANT’S SECTION 37.02(B) NOTICE”), which
\nTenant’s Section 37.02(b) Notice shall either (A) be accompanied by Tenant’s
\ngood and sufficient check (made payable to Landlord) in the amount of the
\nAlleged Default Amount, with or without protest and reservation of rights, or
\n(B) both (i) indicate Tenant’s good-faith belief that no monetary Event of
\nDefault has occurred and is then continuing, and (ii) unless Original Tenant is
\nthen Tenant, be accompanied by Tenant’s good and sufficient check (made payable
\nto Landlord) in the amount of Alleged Default Amount. In any case described in
\nclause (B) above, Landlord shall deposit the proceeds of the check with an
\nescrow agent, who shall (x) hold the funds until there shall the resolution of
\nthe dispute regarding the occurrence and continuance of a monetary<\/p>\n
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\n 154
\nEvent of Default, and (y) upon such resolution, appropriately disburse such
\nfunds to Landlord and\/or Tenant.<\/p>\n
37.03. (a) If, pursuant to Section 37.02(a)(iv)(y) above,
\nTenant’s Termination Notice shall provide that Original Tenant and\/or one or
\nmore of its Affiliates have not, prior to the date of such notice, completed a
\nQualified Relocation, but that Tenant believes that Original Tenant and\/or one
\nor more of its Affiliates will complete a Qualified Relocation after the date of
\nsuch notice, then the Preliminary Termination Fee Payment shall initially be
\ndetermined assuming that the Applicable Period will be the period described in
\nSection 37.04(g)(i); but if Original Tenant and\/or one or more of its Affiliates
\nshall fail to make a Qualified Relocation and the Applicable Period is thus the
\nperiod described in Section 37.04(g)(ii), then the Preliminary Termination Fee
\nPayment shall be recomputed based thereon and Tenant shall promptly pay the
\nincreased amount to Landlord, together with interest thereon at the Base Rate
\nfor the period from the date that the initial payment of the Preliminary
\nTermination Fee Payment was made to the date such increased amount is paid.<\/p>\n
(b) Within thirty (30) days after the final determinations
\n(between Landlord and Tenant) of both the Tax Payments for all of the Tax Years
\nincluded within the Applicable Period and the Operating Payments for all of the
\nOperating Years included within the Applicable Period, Landlord and Tenant shall
\nreconcile the amount of the Preliminary Termination Fee Payment with the
\nTermination Fee and (A) if the Termination Fee exceeds the Preliminary
\nTermination Fee Payment, then Tenant shall pay to Landlord such excess, together
\nwith interest on the amount of such excess at the Base Rate (for the period from
\nthe date that the Preliminary Termination Fee Payment was made to the date of
\nthe payment of such excess), or (B) if the Preliminary Termination Fee Payment
\nexceeds the Termination Fee, then Landlord shall pay to Tenant such excess,
\ntogether with interest on the amount of such excess at the Base Rate (for the
\nperiod from the date that the Preliminary Termination Fee Payment was made to
\nthe date of the payment of such excess).<\/p>\n
37.04. (a) The “TERMINATION FEE” shall mean an amount equal to
\nthe sum of (i) an amount equal to the Termination Space Percentage (as
\nhereinafter defined) of the sum of (x) the Unamortized Transaction Cost Amount
\n(as hereinafter defined) as of the Early Termination Date, plus (y) the
\nUnamortized 47th Floor Amount (as hereinafter defined) as of the Early
\nTermination Date, plus (ii) an amount equal to the Fixed Rent which would be
\npayable during the Applicable Period (as hereinafter defined) with respect to
\nthe Termination Space assuming this lease were in full force and effect
\nthroughout such period (determined without regard to any abatements, credits or
\noffsets), plus (iii) an amount equal to the sum of the Tax Payments which would
\nbe payable during the Applicable Period with respect to the Termination Space
\nassuming this lease were in full force and effect throughout such period
\n(determined without regard to any abatements, credits or offsets), plus (iv) an
\namount equal to the sum of the Operating Payments which would be payable during
\nthe Applicable Period with respect to the Termination Space assuming this lease
\nwere in full force and effect throughout such period (determined without regard
\nto any abatements, credits or offsets).<\/p>\n
(b) The “PRELIMINARY TERMINATION FEE PAYMENT” shall mean
\nan amount equal to the sum of (i) an amount equal to the Termination Space
\nPercentage of the sum of (x) the Unamortized Transaction Cost Amount as of the
\nEarly Termination Date, plus (y) the Unamortized 47th Floor Amount as of the
\nEarly Termination Date, plus (ii) an amount equal to the Fixed Rent which would
\nbe payable during the Applicable Period (as hereinafter defined) with respect to
\nthe Termination Space<\/p>\n
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\n 155
\nassuming this lease were in full force and effect throughout such period
\n(determined without regard to any abatements, credits or offsets), plus (iii) an
\namount equal to the sum of the Projected Tax Payments (as hereinafter defined)
\nfor the Applicable Period with respect to the Termination Space, determined as
\nof the date that Tenant delivers Tenant’s Termination Notice to Landlord, plus
\n(iv) an amount equal to the sum of the Projected Operating Payments (as
\nhereinafter defined) for the Applicable Period with respect to the Termination
\nSpace, determined as of the date that Tenant delivers Tenant’s Termination
\nNotice to Landlord.<\/p>\n
(c) (1) The “TRANSACTION COST AMOUNT” shall mean the sum
\nof (i) an amount equal to the dollar amount of the Fixed Rent which is abated
\npursuant to the provisions of Section 1.06 hereof, plus (ii) an amount equal to
\nthe sum of all brokerage commissions or other compensation payable by Landlord
\nto the Brokers on account of Tenant’s leasing of the Initially Demised Premises
\n(determined without regard to the provisions of the second sentence of Section
\n37.01 hereof).<\/p>\n
(2) The “47TH FLOOR COST AMOUNT” shall
\nmean (A) the amount of 47th Floor Fixed Rent (as hereinafter defined) which is
\nabated during the 47th Floor Abatement Period (as hereinafter defined), if any,
\nand (B) all brokerage commissions or other compensation payable by Landlord to
\nthe Brokers on account of Tenant’s leasing of the 47th Floor Space.<\/p>\n
(3) Within sixty (60) days after the occurrence of
\nthe 47th Floor Commencement Date, each of Landlord and Tenant shall execute an
\ninstrument, in mutually agreeable form, setting forth the Transaction Cost
\nAmount and the 47th Floor Cost Amount, provided, that the failure of either
\nparty to execute such instrument shall not affect the validity of any provision
\nof this Article 37 or any other provision of this lease.<\/p>\n
(d) (1) The “UNAMORTIZED TRANSACTION COST AMOUNT”, as of
\nany date, shall mean the principal balance which would be outstanding, as of
\nsuch date, under a loan (i) advanced on the Fixed Rent Commencement Date in an
\noriginal principal amount equal to the Transaction Cost Amount, (ii) bearing
\ninterest at a rate of 9% per annum, and (iii) providing for combined constant
\nmonthly payments of principal and interest sufficient to fully-liquidate such
\nloan over the period commencing on the Fixed Rent Commencement Date and ending
\non the Initial Expiration Date.<\/p>\n
(2) The “UNAMORTIZED 47TH FLOOR AMOUNT”, as of any
\ndate, shall mean the principal balance which would be outstanding, as of such
\ndate, under a loan (x) advanced on the 47th Floor Commencement Date (as
\nhereinafter defined) (or, if there is a 47th Floor Abatement Period, then the
\nday following such period) in the original principal amount equal to the 47th
\nFloor Cost Amount, (y) bearing interest at a rate of 9% per annum, and (z)
\nproviding for combined constant monthly payments of principal and interest
\nsufficient to fully-liquidate such loan over the period commencing on the 47th
\nFloor Commencement Date (as hereinafter defined) (or, if there is a 47th Floor
\nAbatement Period, then the day following such period) and ending on the Initial
\nExpiration Date.<\/p>\n
(e) The “PROJECTED TAX PAYMENTS” for any period determined
\nas of any date, shall mean the Tax Payments which would be payable during such
\nperiod (determined without regard to any abatements, credits or offsets)
\nassuming that (i) this lease (as modified through such date) were in full force
\nand effect throughout such period, (ii) Adjusted Real Property Taxes for each
\nTax Year following the last Tax Year for which the Tax Closure Date has occurred
\nas of such date, will be 104% of the Adjusted Real Property Taxes for the prior
\nTax Year (and, if, as<\/p>\n
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\n 156
\nof such date, no Tax Closure Date shall have occurred, then further assuming,
\nsolely for purposes of computing Projected Tax Payments under this Section
\n37.04(e), (X) in the event Tenant shall have theretofore received a Tax
\nStatement for any Tax Year, that the Tax Closure Date shall have occurred with
\nrespect to the last or most recent Tax Year for which Tenant shall have received
\na Tax Statement and that the Adjusted Real Property Taxes for such Tax Year are
\nas set forth on the last or most recent Tax Statement for such Tax Year, and (Y)
\nin the event that Tenant shall not theretofore have received a Tax Statement for
\nany Tax Year, that the Tax Closure Date shall have occurred with respect to the
\nthen most recently ended Tax Year and that the Adjusted Real Property Taxes
\ntherefor are zero), and (iii) Tenant’s Generator Taxes for each Tax Year
\nfollowing the last Tax Year for which Tenant’s Generator Taxes were finally
\ndetermined hereunder as of such date will be 104% of Tenant’s Generator Taxes
\nfor the prior Tax Year (or, if, as of such date, Tenant’s Generator Taxes shall
\nnot have been finally determined for any Tax Year, then assuming, solely for
\npurposes of this Section 37.04(e), that Tenant’s Generator Taxes are zero).<\/p>\n
(f) The “PROJECTED OPERATING PAYMENTS” for any period
\ndetermined as of any date, shall mean the Operating Payments which would be
\npayable during such period (determined without regard to any abatements, credits
\nor offsets) assuming that (i) this lease (as modified through such date) were in
\nfull force and effect throughout such period, and (ii) Operating Expenses for
\neach Operating Year following the last Operating Year for which Operating
\nExpenses were finally determined as of such date will be 104% of the Operating
\nExpenses for the prior Operating Year (and, if, as of such date, Operating
\nExpenses shall not have been finally determined for any Operating Year, then
\nfurther assuming, solely for purposes of computing Projected Operating Payments
\nunder this Section 37.04(f), (X) in the event Tenant shall have theretofore
\nreceived any Operating Statement for any Operating Year, that Operating Expenses
\nfor the last or most recent Operating Year for which Tenant shall have received
\nan Operating Statement are as set forth on the last or most recent Operating
\nStatement for such Operating Year, and (Y) in the event that Tenant shall not
\ntheretofore have received any Operating Statement for any Operating Year, that
\nOperating Expenses for the most recently ended Operating Year are zero).<\/p>\n
(g) The “APPLICABLE PERIOD” shall mean either (i) in any
\ncase that Original Tenant (as Tenant hereunder) or an Affiliate of Original
\nTenant (as Tenant hereunder) exercises the Termination Right and Original Tenant
\nand\/or its Affiliates shall make a Qualified Relocation (as defined below), the
\nperiod of nine (9) consecutive months commencing on the day after the Early
\nTermination Date, or (ii) in any other case, the period of eighteen (18)
\nconsecutive months commencing on the day after the Early Termination Date.<\/p>\n
(h) “QUALIFIED RELOCATION PREMISES” shall mean premises
\nlocated either (i) anywhere (within or without Manhattan) outside of lower
\nManhattan (i.e., the entirety of Manhattan south of Canal Street) or (ii)
\nanywhere in the area shown on Exhibit U attached hereto.<\/p>\n
(i) A “QUALIFIED RELOCATION” shall mean a relocation by
\nOriginal Tenant and\/or one or more of its Affiliates (while either Original
\nTenant or an Affiliate of Original Tenant is Tenant hereunder) to Qualified
\nRelocation Premises, provided, that such relocation shall include the relocation
\nto such Qualified Relocation Premises of (I) fifty (50%) or more of all the 85
\nBroad Street Employees (defined below) with respect to such relocation, and (II)
\nfifty (50%) or more of all the Premises Employees (defined below) with respect
\nto such relocation. The “85 BROAD STREET EMPLOYEES”, with respect to any
\nrelocation, shall mean all the employees of<\/p>\n
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\n 157
\nOriginal Tenant and\/or its Affiliates (i.e., Affiliates of Original Tenant at
\nthe time of such relocation) who, immediately prior to such relocation, were
\nregularly located at 85 Broad Street, New York, New York. The “PREMISES
\nEMPLOYEES”, with respect to any relocation, shall mean all the employees of
\nOriginal Tenant and\/or its Affiliates (i.e., Affiliates of Original Tenant at
\nthe time of such relocation) who, immediately prior to such relocation, were
\nregularly located at the Premises. Notwithstanding the foregoing provisions of
\nthis Section 37.04(i), if Tenant’s Termination Notice shall not provide either
\n(X) that Original Tenant and\/or one or more of its Affiliates have, prior to the
\ndate of such notice, completed a Qualified Relocation (pursuant to Section
\n37.02(a)(iv)(x) above) or (Y) that Original Tenant and\/or one or more of its
\nAffiliates have not, prior to the date of such notice, completed a Qualified
\nRelocation, but that Tenant believes that Original Tenant and\/or one or more of
\nits Affiliates will complete a Qualified Relocation after the date of such
\nnotice (pursuant to the provisions of Section 37.02(a)(iv)(y) above), then no
\nrelocation by Original Tenant and\/or one or more of its Affiliates shall ever be
\nconsidered a “Qualified Relocation”.<\/p>\n
(j) “TERMINABLE PORTION”, of the Premises, shall mean a
\nportion (i.e., less than all) of the Premises consisting solely of either: (i)
\nthe entirety of the Premises other than the Base Block; (ii) the entirety of the
\nPremises other than the Base Block and an Additional Full Floor Block; or (iii)
\nthe entirety of the Premises other than a specific single Full Premises Floor,
\nbut only if, as of the date of Tenant’s Termination Notice, (x) not less than
\n80% of the rentable area of such specific single Full Premises Floor is occupied
\nby GSAM, and (y) GSAM intends to continue in such occupancy of such Full
\nPremises Floor for the remainder of the term of this lease. As used herein, (1)
\n“BASE BLOCK” shall mean (x) the entirety of the Premises located on the four (4)
\nhighest Full Premises Floors, plus (y) the entirety of the Premises located on
\neach Partial Premises Floor, if any, which is a higher floor than one or more of
\nsuch four (4) highest Full Premises Floors, (2) an “ADDITIONAL FULL FLOOR BLOCK”
\nshall mean the entirety of the Premises located on any one or more Full Premises
\nFloors which are located below the Base Block, but only if (x) all such Full
\nPremises Floors, together, constitute a vertically contiguous block of floors,
\nand (y) the highest of such Full Premises Floors within the Additional Full
\nFloor Block is vertically contiguous with the lowest Full Premises Floor within
\nthe Base Block, and (3) “GSAM” shall mean the company now known as Goldman Sachs
\nAsset Management, Inc., any successor to such company by merger or
\nconsolidation, or any entity acquiring all or substantially all of the assets of
\nsuch company.<\/p>\n
(k) The “TERMINATION SPACE” shall mean (i) in any case
\nthat Tenant shall have properly exercised the Termination Right as to the entire
\nPremises, the entire Premises, and (ii) in any case that Tenant shall have
\nproperly exercised the Termination Right as to a Terminable Portion, the
\nTerminable Portion described and delineated in Tenant’s Termination Notice.<\/p>\n
(l) The “TERMINATION SPACE PERCENTAGE” shall mean (i) in
\nany case that Tenant shall have properly exercised the Termination Right as to
\nthe entire Premises, 100%, and (ii) in any case that Tenant shall have properly
\nexercised the Termination Right as to a Terminable Portion, a fraction, (A) the
\nnumerator of which is the number of rentable square feet in the Terminable
\nPortion described and delineated in Tenant’s Termination Notice, and (B) the
\ndenominator of which is the number of rentable square feet in the entire
\nPremises.<\/p>\n
37.05. If Tenant properly exercises the Termination Right, then, as of
\nthe Early Termination Date, this lease shall terminate and end as to the
\nTermination Space as fully and<\/p>\n
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\n 158
\ncompletely, and with the same effect, as if the Early Termination Date was the
\nExpiration Date with respect to the Termination Space and the term “Expiration
\nDate” shall, with respect to the Termination Space, thereafter refer to the
\nEarly Termination Date. Accordingly and without limiting the generality of the
\nforegoing, (i) on or prior to the Early Termination Date, Tenant shall (and
\nshall cause each Tenant Party to) vacate the Termination Space in accordance
\nwith the provisions of this lease, and (ii) as of the Early Termination Date,
\nthe Fixed Rent, the Base Component of the Tax Payments and the Operating
\nPayments payable with respect to the Termination Space shall be apportioned in
\nthe same manner and to the same extent as if the Early Termination Date was the
\nExpiration Date with respect to the Termination Space.<\/p>\n
37.06. If, pursuant to Section 37.04(j)(iii) above, the Tenant’s
\nTermination Notice shall describe and delineate Termination Space consisting of
\nthe entirety of the Premises other than a specific single Full Premises Floor
\nthen occupied by GSAM, then the following provisions shall apply:<\/p>\n
(a) Landlord, by notice to Tenant given no later than
\nthirty (30) days after its receipt of Tenant’s Termination Notice, may, by
\nwritten notice to Tenant (the “GSAM PREMISES SUBSTITUTION NOTICE”), may
\nsubstitute as the Termination Space, in lieu of the Termination Space described
\nin Tenant’s Termination Notice, the entirety of the Premises other than any
\nother single Full Premises Floor, such other single Full Premises Floor to be
\nspecified in the GSAM Premises Substitution Notice.<\/p>\n
(b) If Landlord shall give the GSAM Premises Substitution
\nNotice, then Tenant, by notice to Landlord given no later than thirty (30) days
\nafter its receipt thereof (the “GSAM TERMINATION NOTICE”), may elect to revise
\nTenant’s Termination Notice to relate to the entirety of the Premises, but to
\nmake no other revision to Tenant’s Termination Notice. Upon the giving of the
\nGSAM Termination Notice, Tenant’s Termination Notice shall be deemed, ab initio,
\nto relate to the entirety of the Premises. Together with the GSAM Termination
\nNotice, Tenant shall forward Tenant’s good and sufficient check (payable to
\nLandlord) for an amount which Tenant, in good faith, believes to be equal to the
\nexcess of the Preliminary Termination Fee Payment for the entirety of the
\nPremises over the Preliminary Termination Fee Payment originally included with
\nTenant’s Termination Notice.<\/p>\n
(c) Unless Tenant serves the GSAM Termination Notice
\nwithin the 30-day period described in Section 37.06(b) above, the terms and
\nconditions of this lease, effective as of day after the Early Termination Date
\n(and whether the Termination Space is as initially set forth in Tenant’s
\nTermination Notice or as set forth in the GSAM Premises Substitution Notice),
\nshall, automatically and without further act of the parties, be deemed amended
\nand modified as follows: (i) the Fixed Rent payable under this lease shall be
\nincreased by an amount equal to $2.00 multiplied by the number of rentable
\nsquare feet in the Premises (after the operation of the provisions of Section
\n37.05 above); and (ii) this lease shall be further amended and modified as
\nprovided on Exhibit W attached hereto. Tenant, at the request of Landlord, shall
\nexecute an instrument, in the form of a lease amendment, confirming the
\naforesaid amendments and modifications to this lease, effective as of the day
\nafter the Early Termination Date, provided, that the failure of Tenant to
\nexecute such instrument shall not affect the effectiveness of such amendments
\nand modifications or the validity thereof or the validity of any other provision
\nof this lease.<\/p>\n
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\n 159
\n ARTICLE 38<\/p>\n
Renewal Terms<\/p>\n
38.01. (a) Tenant shall have the option (herein called the “FIRST
\nRENEWAL OPTION”) to extend the term of this lease as to the entire Premises or
\nany Renewable Portion (as hereinafter defined) thereof for an additional five
\n(5) year period (the “FIRST RENEWAL TERM”), which First Renewal Term shall
\ncommence on the date immediately succeeding the Initial Expiration Date, and end
\non the fifth (5th) anniversary of the Initial Expiration Date (the “FIRST
\nRENEWAL EXPIRATION DATE”); provided, that, as of the date that Tenant gives
\nLandlord the First Renewal Notice (as hereinafter defined) this lease shall be
\nin full force and effect. The First Renewal Option shall be exercisable only
\nwith respect to the entire Premises or any Renewable Portion thereof and only by
\nTenant giving Landlord written notice of such exercise (herein called the “FIRST
\nRENEWAL NOTICE”), which notice (x) shall indicate whether Tenant is exercising
\nthe First Renewal Option as to entire Premises or a Renewable Portion thereof,
\nand, in the latter case, shall describe and delineate the Renewable Portion (it
\nbeing agreed that if the First Renewal Notice does not so indicate, then Tenant
\nshall be conclusively deemed to have exercised the First Renewal Option as to
\nthe entire Premises), and (y) shall be received by Landlord not later than the
\ndate that is eighteen (18) months prior to the Expiration Date (time being of
\nthe essence with respect to Landlord’s receipt of the First Renewal Notice).
\nLandlord, at its option, by notice to Tenant given no later than ten (10)
\nBusiness Days after Landlord’s receipt of the First Renewal Notice, may render
\nthe First Renewal Notice null and void if, at the time that Landlord receives
\nthe same, an Event of Default shall have occurred and is then continuing.<\/p>\n
(b) Tenant shall have the option (herein called the
\n“SECOND RENEWAL OPTION”) to extend the term of this lease as to the entire
\nPremises or any Renewable Portion thereof for an additional five (5) year period
\n(the “SECOND RENEWAL TERM”), which Second Renewal Term shall commence on the
\ndate immediately succeeding the First Renewal Expiration Date, and end on the
\nfifth (5th) anniversary of the First Renewal Expiration Date (the “SECOND
\nRENEWAL EXPIRATION DATE”); provided, that, Tenant shall have previously
\nexercised the First Renewal Option, and, as of the date that Tenant gives
\nLandlord the Second Renewal Notice (as hereinafter defined), this lease shall be
\nin full force and effect. The Second Renewal Option shall be exercisable only
\nwith respect to the entire Premises or any Renewable Portion thereof and only by
\nTenant giving Landlord written notice of such exercise (herein called the
\n“SECOND RENEWAL NOTICE”), which notice (x) shall indicate whether Tenant is
\nexercising the Second Renewal Option as to entire Premises or a Renewable
\nPortion thereof, and, in the latter case, shall describe and delineate the
\nRenewable Portion (it being agreed that if the Second Renewal Notice does not so
\nindicate, then, in either such case, Tenant shall be conclusively deemed to have
\nexercised the Second Renewal Option as to the entire Premises), and (y) shall be
\nreceived by Landlord not later than the date that is eighteen (18) months prior
\nto the First Renewal Expiration Date (time being of the essence with respect to
\nLandlord’s receipt of the Second Renewal Notice). Landlord, at its option, by
\nnotice to Tenant given no later than ten (10) Business Days after Landlord’s
\nreceipt of the Second Renewal Notice, may render the Second Renewal Notice null
\nand void if, at the time that Landlord receives the same, a Event of Default
\nshall have occurred and is then continuing.<\/p>\n
(c) As used herein, the following terms shall have the
\nfollowing meanings:<\/p>\n
“RENEWABLE PORTION”, of the Premises, shall mean a
\nportion (i.e., less than all) of the Premises<\/p>\n
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\n 160
\nconsisting solely of either: (i) the Base Block; or (ii) the Base Block and an
\nAdditional Full Floor Block.<\/p>\n
“FIRST RENEWAL PREMISES” shall mean either (i) the
\nentire Premises as of the date of the First Renewal Notice, if Tenant exercises
\n(or is deemed to have exercised) the First Renewal Option as to the entire
\nPremises, or (ii) the Renewable Portion described and delineated in the First
\nRenewal Notice, if Tenant exercises the First Renewal Option as to a Renewable
\nPortion (as opposed to the entire Premises).<\/p>\n
“SECOND RENEWAL PREMISES” shall mean either (i) the
\nentire Premises as of the date of the Second Renewal Notice, if Tenant exercises
\n(or is deemed to have exercised) the Second Renewal Option as to the entire
\nPremises, or (ii) the Renewable Portion described and delineated in the Second
\nRenewal Notice, if Tenant exercises the Second Renewal Option as to a Renewable
\nPortion (as opposed to the entire Premises).<\/p>\n
(d) The First Renewal Option and Second Renewal Option are
\nsometimes referred to individually as a “RENEWAL OPTION” and collectively as the
\n“RENEWAL OPTIONS”; the First Renewal Term and Second Renewal Term are sometimes
\nreferred to individually as a “RENEWAL TERM” and collectively as the “RENEWAL
\nTERMS”; the First Renewal Premises and the Second Renewal Premises are sometimes
\nreferred to individually and collectively as “RENEWAL PREMISES”.<\/p>\n
38.02. (a) If Tenant exercises the First Renewal Option in
\naccordance with the terms of Section 38.01(a) above, then this lease shall
\nthereupon be extended for the First Renewal Term upon all the same terms,
\ncovenants and conditions as are contained in this lease, except that for, and
\nduring, the First Renewal Term:<\/p>\n
(1) the Fixed Rent shall be the Fair Market Fixed
\nRent (as hereinafter defined) for the First Renewal Term, as defined and
\ndetermined pursuant to Sections 38.03, 38.04 and 38.05 below;<\/p>\n
(2) if the First Renewal Premises shall consist of
\nless than the entire Premises (as of the date of the First Renewal Notice),
\nthen, as applicable, Tenant’s Operating Share and Tenant’s Tax Share,
\nrespectively, shall be appropriately reduced by operation of the provisions of
\nSections 3.01(p) and 3.01(q), respectively;<\/p>\n
(3) any provisions of this lease with respect to (i)
\nLandlord’s Work, or (ii) any abatement period(s) with respect to Fixed Rent,
\nOperating Payment(s) or Tax Payment(s) set forth in Articles 1, 3 and 4 hereof,
\nshall not be applicable;<\/p>\n
(4) the provisions of Section 38.01(a) above
\nrelative to Tenant’s right to renew the term of this lease shall not be
\napplicable;<\/p>\n
(5) the Expiration Date shall be the First Renewal
\nExpiration Date; and<\/p>\n
(6) the Base Tax Amount shall be the Adjusted Real
\nProperty Taxes for the Tax Year ending immediately prior to the commencement of
\nthe First Renewal Term, and the Base Operating Year shall be the Operating Year
\nending immediately prior to the commencement of the First Renewal Term.<\/p>\n
(b) If Tenant exercises the Second Renewal Option in
\naccordance with the terms of Section 38.01(b), then this lease shall thereupon
\nbe extended for the Second Renewal<\/p>\n
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\n 161
\nTerm upon all the same terms, covenants and conditions as are contained in this
\nlease, except that for, and during, the Second Renewal Term:<\/p>\n
(1) the Fixed Rent shall be the Fair Market Fixed
\nRent for the Second Renewal Term as defined and determined pursuant to Sections
\n38.03, 38.04 and 38.05 below;<\/p>\n
(2) if the Second Renewal Premises shall consist of
\nless than the entire Premises (as of the date of the Second Renewal Notice),
\nthen, as applicable, Tenant’s Operating Share and Tenant’s Tax Share,
\nrespectively, shall be appropriately reduced by operation of the provisions of
\nSections 3.01(p) and 3.01(q), respectively;<\/p>\n
(3) any provisions of this lease with respect to (i)
\nLandlord’s Work, or (ii) any abatement period(s) with respect to Fixed Rent,
\nOperating Payment(s) or Tax Payment(s) set forth in Articles 1, 3 and 4 hereof,
\nshall not be applicable;<\/p>\n
(4) the provisions of Section 38.01 above relative
\nto Tenant’s right to renew the term of this lease shall not be applicable;<\/p>\n
(5) the Expiration Date shall be the Second Renewal
\nExpiration Date; and<\/p>\n
(6) the Base Tax Amount shall be the Adjusted Real
\nProperty Taxes for the Tax Year ending immediately prior to the commencement of
\nthe Second Renewal Term, and the Base Operating Year shall be the Operating Year
\nending immediately prior to the commencement of the Second Renewal Term.<\/p>\n
38.03. For purposes of this Article 38, the term “FAIR MARKET FIXED
\nRENT”, for any Renewal Term, shall mean the fixed annual rent that a willing
\ntenant would pay and a willing landlord would accept for a lease of the Renewal
\nPremises pertinent to such Renewal Term having a 10-year term (commencing with
\nthe commencement of such Renewal Term), and providing for fixed annual rent on a
\nlevel payment basis throughout such term (i.e., no step-ups in fixed rent),
\nassuming: (i) that the Renewal Premises pertinent to such Renewal Term were
\nbeing demised in their “as is” condition as of the date that Tenant exercised
\nthe applicable Renewal Option, without any allowance or contribution by
\nLandlord; (ii) that such Renewal Premises were being demised upon the same terms
\nand conditions as are provided for in this lease for such Renewal Term
\n(including without limitation the terms and conditions set forth in Section
\n38.02 above therefor); and (iii) to the extent that the creditworthiness of the
\ntenant is deemed relevant by the person determining such Fair Market Fixed Rent,
\nthat the tenant has a creditworthiness substantially equivalent to that of
\nTenant.<\/p>\n
38.04. If Tenant exercises a Renewal Option in accordance with the
\nterms of this Article 38, then the following provisions shall apply:<\/p>\n
(a) During the thirty (30) day period (the “INITIAL
\nPERIOD”) following Landlord’s receipt of an effective First Renewal Notice or
\nSecond Renewal Notice, as the case may be, Landlord and Tenant shall attempt to
\nagree upon the Fair Market Fixed Rent for the Renewal Term in question.<\/p>\n
(b) If Landlord and Tenant fail to agree upon the Fair
\nMarket Fixed Rent for any Renewal Term within the Initial Period, then the
\nfollowing provisions shall apply:<\/p>\n
(1) During the six (6) Business Day period following
\n the last day of the Initial Period (the<\/p>\n
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\n 162
\n “BILATERAL APPOINTMENT PERIOD”), Landlord and Tenant shall attempt to
\n agree upon, and appoint, an impartial natural person to serve the
\n functions required of him under this Section 38.04. If Landlord and Tenant
\n fail to do so within the Bilateral Appointment Period, then Landlord,
\n within the period of six (6) Business Days after the Bilateral Appointment
\n Period (the “LANDLORD APPOINTMENT PERIOD”), may appoint to act as such
\n impartial natural person an attorney who is a partner of a law firm of 50
\n lawyers or more that has an office in New York City. If Landlord shall not
\n make such appointment within the Landlord Appointment Period, then Tenant,
\n within the period of twenty (20) Business Days after the Landlord
\n Appointment Period (the “TENANT APPOINTMENT PERIOD”), shall appoint to act
\n as such impartial natural person an attorney who is a partner of a law
\n firm of 50 lawyers or more that has an office in New York City. The person
\n appointed as such impartial person, either by agreement of the parties or
\n otherwise, is herein referred to as the “IMPARTIAL PERSON”. Within five
\n (5) Business Days after the Impartial Person is appointed, he shall
\n execute and deliver to Landlord and Tenant an oath swearing that he shall
\n fairly and impartially perform the functions required of him under this
\n Section 38.04. The fees of the Impartial Person shall be divided and borne
\n equally between Landlord and Tenant. If Tenant shall not appoint the
\n Impartial Person prior to the end of the Tenant Appointment Period, then
\n (A) Tenant’s Rescission Right (as hereinafter defined) with respect to
\n such Renewal Option shall be null and void (and, accordingly, the Renewal
\n Option in question shall be deemed irrevocably exercised), and (B)
\n Landlord and Tenant shall thereafter attempt in good-faith to agree upon
\n the Fair Market Fixed Rent for the Renewal Term in question.<\/p>\n
(2) On the tenth (10th) Business Day after the
\n Impartial Person is appointed or selected (time being of the essence),
\n Landlord and Tenant shall each simultaneously submit to the Impartial
\n Person in sealed envelope a written statement setting forth its opinion of
\n the Fair Market Fixed Rent for the Renewal Term in question; the statement
\n submitted by Landlord pursuant to this sentence being herein called
\n “LANDLORD’S PRELIMINARY SUBMISSION”, the statement submitted by Tenant
\n pursuant to this sentence being herein called “TENANT’S PRELIMINARY
\n SUBMISSION”, and Landlord’s Preliminary Submission and Tenant’s
\n Preliminary Submission being herein collectively called “PRELIMINARY
\n SUBMISSIONS”. Each Preliminary Submission shall set forth the Fair Market
\n Fixed Rent as a per rentable square foot per annum amount for the Renewal
\n Premises. The Impartial Person shall not open or disclose either
\n Preliminary Submission submitted to it except as hereinafter expressly
\n provided. If either Landlord or Tenant shall fail to submit its
\n Preliminary Submission in accordance with the provisions of this Section
\n 38.04(b)(2), then the party which submitted a Preliminary Submission may
\n notify the other party of such failure (which notice shall refer
\n specifically to this Section 38.04(b)(2)), and if, in such event, the
\n other party does not, within a period of seven (7) days after its receipt
\n of such notice, submit its Preliminary Submission, then (I) Tenant’s
\n Rescission Right (as hereinafter defined) with respect to such Renewal
\n Option shall be null and void (and, accordingly, the Renewal Option in
\n question shall be deemed irrevocably exercised), and (II) the only
\n Preliminary Submission which was made in accordance with this Section
\n 38.04(b)(2) shall promptly thereafter be opened by the Impartial Person,
\n and the Fair Market Fixed Rent at issue shall be the determination thereof
\n as set forth in such Preliminary Submission, which determination shall be
\n conclusive and binding upon both Landlord and Tenant. If neither Landlord
\n or Tenant shall have submitted its Preliminary Submission in accordance
\n with the provisions<\/p>\n
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\n of this Section 38.04(b)(2), then (A) Tenant’s Rescission Right (as
\n hereinafter defined) with respect to such Renewal Option shall be null and
\n void (and, accordingly, the Renewal Option in question shall be deemed
\n irrevocably exercised), and (B) Landlord and Tenant shall thereafter
\n attempt in good-faith to agree upon the Fair Market Fixed Rent for the
\n Renewal Term in question.<\/p>\n
(3) If both Landlord and Tenant submit their
\n respective Preliminary Submissions in accordance with the provisions of
\n Section 38.04(b)(2) above, then the Impartial Person, within three (3)
\n Business Days after his receipt of both the Preliminary Submissions, shall
\n concurrently open the same in the presence of Landlord and Tenant and (i)
\n deliver to Tenant a copy of Landlord’s Preliminary Submission, and (ii)
\n deliver to Landlord a copy of Tenant’s Preliminary Submission. Landlord
\n and Tenant shall reasonably cooperate to effect a time and place to meet
\n with the Impartial Person to effectuate the opening and delivering the
\n Preliminary Submissions in accordance with the foregoing provisions of
\n this Section 38.04(b)(3).<\/p>\n
(4) Tenant, within the period of fifteen (15)
\n Business Days after it receives the Landlord’s Preliminary Submission from
\n the Impartial Person (herein called the “RESCISSION PERIOD”), shall have
\n the right to rescind its exercise of the Renewal Option in question (which
\n right, with respect to any Renewal Option, being herein called “TENANT’S
\n RESCISSION RIGHT”), which right may be exercised only be giving Landlord
\n written notice thereof (each, a “TENANT’S RESCISSION NOTICE”) prior to the
\n end of the Rescission Period (time being of the essence). If, with respect
\n to any Renewal Option, Tenant, for any reason, does not give Tenant’s
\n Rescission Notice prior to the end of the Rescission Period, then (i)
\n Tenant’s Rescission Right with respect to such Renewal Option in question
\n shall be null and void (and, accordingly, such Renewal Option shall be
\n deemed irrevocably exercised), and (ii) Landlord and Tenant shall
\n thereafter attempt in good-faith to agree upon the Fair Market Fixed Rent
\n for the Renewal Term in question. If, with respect to any Renewal Option,
\n Tenant does give Tenant’s Rescission Notice prior to the end of the
\n Rescission Period, then (x) Tenant’s exercise of such Renewal Option shall
\n be irrevocably rescinded, and (y) such Renewal Option (and, if applicable,
\n any other outstanding Renewal Option) shall be rendered null and void
\n (and, accordingly, this lease shall end upon the date then set forth for
\n the expiration thereof).<\/p>\n
(c) If, with respect to any Renewal Option, (i) Tenant
\nshall not have given Tenant’s Rescission Notice prior to the end of the
\nRescission Period, (ii) the Fair Market Fixed Rent for the Renewal Term in
\nquestion shall not have been finally determined pursuant to the Section 38.04(b)
\nabove, and (iii) Landlord and Tenant, as of the date that is two hundred and
\nseventy (270) days prior to the date upon which the Renewal Term in question
\nwill commence (which date being herein called “270-DAY DATE”), shall not have
\nagreed upon Fair Market Fixed Rent for such Renewal Term, then, at anytime after
\nsuch 270-Day Date and prior to an agreement between Landlord and Tenant as to
\nsuch Fair Market Fixed Rent, either Landlord or Tenant may require that the Fair
\nMarket Fixed Rent for such Renewal Term be determined by appraisal in accordance
\nwith the provisions of Section 38.05 below (any such notice being herein called
\na “RENEWAL APPRAISAL NOTICE”).<\/p>\n
(d) Upon the final determination of the Fair Market Fixed
\nRent for any Renewal Term (pursuant to the provisions of Section 38.04(b) above,
\nby appraisal in accordance with the provisions of Section 38.05 hereof, or by an
\nagreement<\/p>\n
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\nof Landlord and Tenant), the same shall constitute the Fixed Rent for such
\nRenewal Term as hereinabove provided.<\/p>\n
(e) If, as of the commencement of any Renewal Term, the
\nFair Market Fixed Rent therefor shall not have been finally determined, then (i)
\nfor the period from the commencement of such Renewal Term until the date that
\nsuch Fair Market Fixed Rent is finally determined (herein called the
\n“PRE-DETERMINATION PERIOD”), Tenant shall make payments, on account of the Fixed
\nRent for the Renewal Term (as and when Fixed Rent is payable hereunder
\ntherefor), at a per rentable square foot per annum rate equal to average per
\nrentable square foot per annum rate of Fixed Rent for the Premises as of the
\ndate immediately preceding the commencement of such Renewal Term, and (ii) upon
\nthe final determination of such Fair Market Fixed Rent, the Fixed Rent for such
\nRenewal Term shall be such Fair Market Fixed Rent, and (x) if the payments made
\nby Tenant on account of such Fixed Rent during the Pre-Determination Period were
\nless than such Fair Market Fixed Rent payable for such period, then Tenant shall
\npay to Landlord the amount of such deficiency, together with interest thereon at
\nthe Base Rate, within twenty (20) days after demand therefor, or (y) if the
\npayments made by Tenant on account of the Fixed Rent for such Renewal Term
\nduring the Pre-Determination Period were in excess of such Fair Market Fixed
\nRent payable for such period, then Landlord shall credit the amount of such
\nexcess, together with interest thereon at the Base Rate, against future
\ninstallments of Fixed Rent and\/or Additional Charges payable by Tenant.<\/p>\n
38.05. If, with respect to the Fair Market Fixed Rent for any
\nRenewal Term, either Landlord or Tenant shall serve a Renewal Appraisal Notice,
\nthen such Fair Market Fixed Rent shall be determined by appraisal in accordance
\nwith the following:<\/p>\n
(a) Within thirty (30) days after the date that is the
\nRenewal Appraisal Notice is received by the party to whom it was sent, each of
\nLandlord and Tenant, by notice to the other party, shall appoint an appraiser
\n(the two appraisers so appointed being herein collectively called the “INITIAL
\nAPPRAISERS”). If either Landlord or Tenant shall fail to timely appoint an
\nInitial Appraiser within such 30-day period, then the party which appointed an
\nInitial Appraiser may notify the other party of such failure (which notice shall
\nrefer specifically to this Section 38.05(a)), and if, in such event, the other
\nparty does not, within a period of seven (7) days after its receipt of such
\nnotice, appoint the second Initial Appraiser, then the appointed Initial
\nAppraiser shall independently select and appoint the second Initial Appraiser,
\nwho shall be impartial, within ten (10) days after the expiration of such 7-day
\nperiod.<\/p>\n
(b) Within thirty (30) days after the appointment of both
\nInitial Appraisers, (i) Landlord shall submit to each of the Initial Appraisers,
\nin a sealed envelope, a written statement setting forth Landlord’s good-faith
\ndetermination of the Fair Market Fixed Rent for the applicable Renewal Term (as
\na per rentable square foot per annum amount for the Renewal Premises therefor),
\nwhich determination shall be not greater than 105%, and not less than 95%, of
\nthe determination of such Fair Market Fixed Rent set forth in Landlord’s
\nPreliminary Submission, if any (such sealed written determination of Landlord
\nbeing herein called “LANDLORD’S FAIR MARKET DETERMINATION”), and (ii) Tenant
\nshall each submit to each of the Initial Appraisers, in a sealed envelope, a
\nwritten statement setting forth Tenant’s good-faith determination of the Fair
\nMarket Fixed Rent for the applicable Renewal Term (as a per rentable square foot
\nper annum amount for the Renewal Premises therefor), which determination shall
\nbe not greater than 105%, and not less than 95%, of the determination of such
\nFair Market Fixed Rent set forth in Tenant’s Preliminary Submission, if any
\n(such sealed written determination of Tenant being herein called “TENANT’S FAIR
\nMARKET<\/p>\n
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\nDETERMINATION”) (Landlord’s Fair Market Determination and Tenant’s Fair Market
\nDetermination are herein collectively called the “FAIR MARKET DETERMINATIONS”).
\nNeither of the Fair Market Determinations shall be opened except as and when
\nhereinafter expressly provided. If either Landlord or Tenant shall fail to
\nsubmit its Fair Market Determination in accordance with the provisions of this
\nSection 38.05(b), then the party which made a Fair Market Determination may
\nnotify the other party of such failure (which notice shall refer specifically to
\nthis Section 38.05(b)), and if, in such event, the other party does not, within
\na period of seven (7) days after its receipt of such notice, submit its Fair
\nMarket Determination, then the only Fair Market Determination which was made in
\naccordance with this Section 38.05(b) shall promptly thereafter be opened by the
\nInitial Appraisers, and the Fair Market Fixed Rent at issue shall be such Fair
\nMarket Determination, which Fair Market Determination shall be conclusive and
\nbinding upon both Landlord and Tenant.<\/p>\n
(c) If both Landlord and Tenant submit their respective
\nFair Market Determinations in accordance with the provisions of Section 38.05(b)
\nabove, then the Initial Appraisers shall arrange a meeting (herein called the
\n“INITIAL APPRAISER MEETING”) to be held at the Building office (or at such other
\nplace as is mutually agreeable to the Initial Appraisers and located in the
\nBorough of Manhattan) during Business Hours within fifteen (15) days after the
\nreceipt by both Initial Appraisers of each of the Fair Market Determinations for
\nthe purpose of opening the Fair Market Determinations. Landlord and Tenant shall
\nhave not less than ten (10) days notice of the date, time and location of the
\nInitial Appraiser Meeting and shall have the right to have its representatives
\npresent thereat. At the Initial Appraiser Meeting, (i) the Fair Market
\nDeterminations shall be opened by each of the Initial Appraisers and copies
\nthereof shall be distributed to Landlord and Tenant, and (ii) thereafter, each
\nof Landlord and Tenant may submit to the Initial Appraisers such written
\nevidence in support of its Fair Market Determination as it deems appropriate.<\/p>\n
(d) Within twenty (20) days after the Initial Appraiser
\nMeeting, each of the Initial Appraisers shall independently select the Fair
\nMarket Determination (as between Landlord’s Fair Market Determination and
\nTenant’s Fair Market Determination which, in his opinion, more accurately
\nreflects the Fair Market Fixed Rent at issue, and shall notify Landlord, Tenant
\nand the other Initial Appraiser of such selection in writing. If the two Initial
\nAppraisers concur in such selection, then the Fair Market Fixed Rent at issue
\nshall be as set forth in the selected Fair Market Determination, which Fair
\nMarket Determination shall be conclusive and binding upon both Landlord and
\nTenant.<\/p>\n
(e) If the Initial Appraisers do not concur in such
\nselection, then the two Initial Appraisers, within ten (10) days after the end
\nof such 20-day period, shall jointly appoint a mutually agreeable third
\nappraiser who shall be impartial (herein called the “THIRD APPRAISER”). If the
\nInitial Appraisers fail to agree upon and appoint the Third Appraiser within
\nsuch 10-day period, then either Landlord or Tenant may request that the American
\nArbitration Association or its successor (“AAA”) appoint the Third Appraiser
\nwithin twenty (20) days after such request, and both parties shall be bound by
\nany appointment so made within such 20-day period. If the Third Appraiser shall
\nnot have been appointed within such 20-day period, then either Landlord or
\nTenant may apply to any court having jurisdiction to make such appointment.<\/p>\n
(f) The Third Appraiser shall subscribe and swear to an
\noath to fairly and impartially select the Fair Market Determination which, in
\nhis opinion, more accurately reflects the<\/p>\n
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\n 166
\nFair Market Fixed Rent at issue. The Third Appraiser shall conduct such hearings
\nas he deems appropriate (or such hearings as either Landlord or Tenant shall
\nrequest). Within twenty (20) days after the Third Appraiser has been appointed,
\nthe Third Appraiser shall select the Fair Market Determination (i.e., either
\nLandlord’s Fair Market Determination or Tenant’s Fair Market Determination)
\nwhich, in his opinion, more accurately reflects the Fair Market Fixed Rent at
\nissue, and shall notify Landlord, Tenant and each of the Initial Appraisers of
\nsuch selection in writing. The Fair Market Fixed Rent shall be as set forth in
\nthe Fair Market Determination selected by the Third Appraiser, which Fair Market
\nDetermination shall be conclusive and binding upon both Landlord and Tenant.<\/p>\n
(g) In connection with any appraisal conducted pursuant to
\nthis Section 38.05, Landlord, if required pursuant to the terms of a Mortgage,
\nmay serve a copy of such notice on each Mortgagee, and allow such Mortgagee the
\nright to participate in such appraisal. Such right of participation shall
\ninclude, without limitation, (x) the right to be represented by counsel, (y)
\nsubmit evidence and (z) argument, but all submissions, designations, elections
\nand other actions shall be made or taken by Landlord.<\/p>\n
(h) The fees and expenses of any such appraisal shall be
\nborne by the parties equally, but each party shall bear the expense of the
\nInitial Appraiser appointed by it and its attorneys and experts as well as any
\nexpenses of presenting its own proof.<\/p>\n
(i) Landlord and Tenant shall each have the right to
\nsubmit such data and memoranda to each of the appraisers in support of their
\nrespective positions as they may deem necessary or appropriate.<\/p>\n
(j) Each appraiser shall be a qualified member of the
\nAmerican Institute of Real Estate Appraisers (or any successor of such
\nInstitute, or if such organization or successor shall no longer be in existence,
\na recognized national association or institute of appraisers) who shall not be a
\nsole practitioner, and shall have at least ten (10) years’ experience in leasing
\nand valuation of properties which are similar in character to the Building.<\/p>\n
(k) It is expressly understood, and each appraiser shall
\nacknowledge and agree, that any determination of the Fair Market Fixed Rent for
\nany Renewal Term shall be based solely on the definition thereof as set forth in
\nSection 38.03 hereof, including the assumptions and criteria set forth in such
\ndefinitions. The appraisers shall not have the power to add to, modify or change
\nany such definitions or any other provisions of this lease, and the jurisdiction
\nof the appraisers is accordingly limited.<\/p>\n
ARTICLE 39<\/p>\n
Definition of Landlord; Condominium Provisions<\/p>\n
39.01. For purposes of this lease, the following terms shall have
\nthe following meanings:<\/p>\n
“PREMISES UNITS”, at anytime, shall mean, collectively,
\nall the Units which encompass any leasable area which is located within the
\nPremises at such time. As of the date hereof, the Premises Units are the Units
\nknown as Units 41, 42, 43, 44, 45, 46, 48, 49 and 50, and, as of the 47th Floor
\nCommencement Date, the Premises Units shall include the Unit known as Unit 47.<\/p>\n
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\n “LANDLORD” shall mean: (i) during the period that the
\nCondominium is in effect, the owner, at the time in question, of the Premises
\nUnits, or of a leasehold estate in the Premises Units, so that in the event of
\nany transfer or transfers of title to the Premises Units or of such leasehold
\nestate, the transferor shall be and hereby is relieved and freed of all
\nobligations of Landlord under this lease accruing after such transfer, and it
\nshall be deemed, without further agreement, that such transferee has assumed and
\nagreed to perform and observe all obligations of Landlord hereunder accruing
\nduring the period it is the holder of title to the Premises Units or of a
\nleasehold estate in the Premises Units; provided, however, that where
\nappropriate in the context of this lease to reflect the parties intention that,
\nexcept as set forth in Section 39.03(c) below, that the rights and obligations
\nof the parties hereto shall not be affected by the existence of the Condominium
\n(but never with respect to the right to receive rent, or the making, giving or
\nreceiving of notices, consents, approvals or elections) such term shall also
\ninclude the persons referred to in Section 39.03(b) below, subject to the
\nprovisions of Section 39.03(c) below; and (ii) during any other period, the
\nowner, at the time in question, of the Building, or of a leasehold estate in the
\nBuilding, so that in the event of any transfer or transfers of title to the
\nBuilding or of such leasehold estate, the transferor shall be and hereby is
\nrelieved and freed of all obligations of Landlord under this lease accruing
\nafter such transfer, and it shall be deemed, without further agreement, that
\nsuch transferee has assumed and agreed to perform and observe all obligations of
\nLandlord hereunder accruing during the period it is the holder of title to the
\nBuilding or of a leasehold estate in the Building.<\/p>\n
The term “BOARD” shall mean the “board of managers” as
\nsuch term is used in the Condominium Act.<\/p>\n
The term “COMMON OWNER” shall have the meaning ascribed
\nthereto in the Condominium Declaration.<\/p>\n
39.02. Landlord hereby covenants to Tenant that, at all times during
\nthe term hereof, the Premises Units shall be owned or leased, as the case may
\nbe, by a single entity. If this provision is violated, then, without limiting
\nany other remedies available to Tenant against Landlord, the owners or lessees,
\nas the case may be, of the Premises Units shall be jointly and severally liable
\nfor the obligations of Landlord hereunder.<\/p>\n
39.03. (a) Landlord, as of the date hereof, is (i) the lessee of,
\nand the holder of various reversionary interests in, the Units which, as of the
\ndate hereof, are IDA Units (inclusive of the common interest in the common
\nelements of the Condominium appurtenant thereto), (ii) the owner of fee title
\nto, and the lessee of the Units which, as of the date hereof, are not IDA Units
\n(including without limitation the Premises Units) (inclusive of the common
\ninterest in the common elements of the Condominium appurtenant thereto), and
\n(iii) the lessee of the common elements of the Condominium (such fee,
\nreversionary and leasehold estates being herein collectively called “LANDLORD’S
\nCURRENT ESTATES”). In addition, Landlord, as of the date hereof, is the Common
\nOwner under the Condominium Declaration.<\/p>\n
(b) Landlord, as the holder of all of Landlord’s Current
\nEstates and with the intent to cause this lease to run with and bind all
\nLandlord’s Current Estates and thereby bind any and all future holders of any or
\nall thereof, and as Common Owner and with the intent to bind all future Common
\nOwners as well as all Boards, hereby agrees that neither the Condominium
\nDeclaration nor any provision thereof shall be effective to limit or otherwise
\nadversely affect Tenant’s rights under this lease, and, without limiting the
\ngenerality of the foregoing, that (i) Tenant shall be deemed in compliance with
\nthe Condominium Declaration so long as Tenant is in compliance with<\/p>\n
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\n 168
\nTenant’s obligations under this lease, (ii) Tenant shall be under no obligation
\nto obtain any consent or approval of any person pursuant to the Condominium
\nDeclaration, unless Tenant has an obligation to obtain the consent or approval
\nof such person under the terms of this lease, and (iii) Landlord shall grant or
\ndeny consent or approval to Tenant in accordance with the terms of this lease,
\nirrespective of the provisions of the Condominium Declaration or the regime
\ncreated thereby, and any such consent to approval granted by Landlord pursuant
\nto this lease shall bind the Common Owner and\/or the Board.<\/p>\n
(c) Notwithstanding the foregoing provisions of this
\nSection 39.03, in the event of a breach of the Landlord’s obligations under this
\nlease, the following provisions shall apply:<\/p>\n
(1) Landlord (i.e., the then Landlord, determined
\nwithout regard to the proviso to clause (i) of the definition of Landlord set
\nforth above), subject to the applicable provisions of this lease (including
\nwithout limitation Section 18.03 and Section 35.03 hereof), shall be liable for
\nsuch breach, even if such breach occurs, in whole or in part, by reason of an
\nact or omission of any holder of a Landlord’s Current Estate or any Board.<\/p>\n
(2) Tenant’s sole recourse against the holder of any
\nof Landlord’s Current Estates (other than the then Landlord, determined without
\nregard to the proviso to clause (i) of the definition of Landlord set forth
\nabove) or any Board on account of any such breach shall be an action for
\nspecific performance or injunction; it being agreed that no holder of any of
\nLandlord’s Current Estates (other than the then Landlord, determined without
\nregard to the proviso to clause (i) of the definition of Landlord set forth
\nabove) and no Board shall ever be liable to Tenant in damages on account of a
\nbreach of this lease. If Tenant shall prevail in any such action for specific
\nperformance or injunction, then Landlord shall reimburse Tenant its reasonable
\nattorney’s fees incurred in connection therewith.<\/p>\n
(d) Landlord subject to and in accordance with the
\nprovisions of Section 18.02 hereof (applied mutatis mutandis) shall indemnify
\nand hold harmless Tenant from and against any claims made by the holder of any
\nof Landlord’s Current Estates (other than the then Landlord) and\/or any Board,
\nwhich relate to the enforcement of the Condominium Declaration (or the regime
\nthereby created) against Tenant in contravention of the provisions of Section
\n39.03(b) hereof.<\/p>\n
39.04. Nothing contained in this lease shall be construed as
\nrequiring Landlord or any other party to keep the Condominium in effect during
\nthe term of this lease (or any portion thereof), and Tenant acknowledges that
\nthe same may be terminated during the term hereof. No termination of the
\nCondominium (howsoever, and for whatever reason, effected) occurring during the
\nterm of this lease shall in any way affect the validity of this lease or the
\nrights and obligations of the parties hereunder.<\/p>\n
ARTICLE 40<\/p>\n
Arbitration<\/p>\n
40.01. If, pursuant to any express provision of this lease, either
\nLandlord is entitled, Tenant is entitled, or either of Landlord or Tenant are
\nentitled, to submit a particular dispute to arbitration in accordance with the
\nprovisions of this Article 40, then each party so entitled to submit the dispute
\nin question to arbitration may do so only by delivering a notice thereof to the
\nother party (each, an “ARBITRATION NOTICE”), and<\/p>\n
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\n 169
\nif such provision of this lease shall set forth a specific period within which
\nsuch party may submit the dispute to arbitration, then such Arbitration Notice
\nmust be served prior to the expiration of such time period (time being of the
\nessence). For purposes of this Article 40, the party delivering an Arbitration
\nNotice shall be referred to as the “INITIATING PARTY”, and the party receiving
\nan Arbitration Notice shall be referred to as the “RESPONDING PARTY”. Each
\nArbitration Notice shall (i) specifically set forth the Article and Section of
\nthis lease in which are located the provisions hereof expressly entitling the
\nInitiating Party to submit the dispute in question to arbitration (such
\nprovisions being herein called the “AUTHORIZING PROVISIONS”), (ii) set forth,
\nwith reasonable specificity, the dispute being submitted to arbitration pursuant
\nto such Authorizing Provisions and the issue to be determined by arbitration
\n(which issue shall be consistent with the Authorizing Provisions) (such issue
\nbeing herein called the “ARBITRATION ISSUE”), and (iii) appoint, and set forth
\nthe name and address of, an arbitrator (herein called the “FIRST ARBITRATOR”) to
\nact in connection with the dispute in question.<\/p>\n
40.02. In each case that an Arbitration Notice is delivered in
\naccordance with the provisions of this lease, the following provisions shall
\napply:<\/p>\n
(a) The Responding Party, within eight (8) Business Days
\nafter its receipt of the Arbitration Notice, shall, by notice to Initiating
\nParty, appoint, and provided the name and address of, a second arbitrator
\n(herein called the “SECOND ARBITRATOR”) to act in connection with the dispute in
\nquestion; it being agreed that if (x) the Responding Party shall fail to appoint
\na Second Arbitrator within such 8 Business Day period, and (y) such failure
\nshall continue for 3 Business Days after the Responding Party receives a notice
\nof such failure from the Initiating Party (which notice shall expressly refer to
\nthis Section 40.02(a)), then the First Arbitrator may appoint the Second
\nArbitrator).<\/p>\n
(b) After the appointment of both the First Arbitrator and
\nthe Second Arbitrator (collectively, the “INITIAL ARBITRATORS”), the Initial
\nArbitrators shall jointly appoint, by written instrument delivered to both the
\nInitiating Party and the Responding Party, a third arbitrator to act in
\nconnection with the dispute in question (herein called the “THIRD ARBITRATOR”);
\nit being agreed that if the Initial Arbitrators shall fail to appoint the Third
\nArbitrator within the aforesaid 5 Business Day period, then either the
\nInitiating Party or the Responding Party may apply to the AAA, or if the AAA
\nshall refuse or fail to act, to a court of competent jurisdiction in the State
\nof New York, for the appointment of the Third Arbitrator.<\/p>\n
40.03. Promptly after the appointment of the Third Arbitrator, each
\nof the First Arbitrator, the Second Arbitrator and the Third Arbitrator shall
\nproceed to decide the Arbitration Issue. The arbitrators shall be instructed to
\nrender their respective decisions, in writing, within eight (8) Business Days
\nafter the appointment of the Third Arbitrator. The written decision of any two
\n(2) of the arbitrators shall be binding and conclusive upon both the Initiating
\nParty and the Responding Party.<\/p>\n
40.04. Landlord and Tenant shall each have the right to appear and
\nbe represented by counsel before any arbitrator(s) and to submit such data and
\nmemoranda in support of their respective positions with respect to the
\nArbitration Issue as may be reasonably necessary or appropriate in the
\ncircumstances; it being agreed that if a dispute shall arise as to whether any
\nsuch data or memoranda is reasonable arises, a majority of the arbitrators are
\nhereby authorized to resolve same.<\/p>\n
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\n 40.05. All the reasonable fees of the arbitrators appointed under
\nArticle 40 (whether by Tenant, Landlord, the AAA or a court) shall be paid by
\nthe non-prevailing party in the arbitration. In addition, the non-prevailing
\nparty shall reimburse the prevailing party the reasonable out-of-pocket costs
\n(including without limitation reasonable attorneys’ fees and the reasonable
\ncosts of producing witnesses and experts) incurred by the prevailing party in
\nconnection with the arbitration.<\/p>\n
40.06. With respect to any conclusive and binding decision of the
\narbitrator(s) rendered pursuant to the provisions of this Article 40, judgment
\nmay be entered thereupon in any court of competent jurisdiction. In rendering
\nany decision, the arbitrator(s) shall have no power to modify any of the
\nprovisions of this lease, and the jurisdiction of arbitrator(s) is limited
\naccordingly, it being specifically understood that the arbitrator(s), in any
\narbitration under this Article 40, shall only have authority to decide the
\nArbitration Issue in question, and in no event shall the arbitrator(s) have any
\nauthority to award damages.<\/p>\n
40.07. Each “ARBITRATOR” appointed hereunder (whether by Landlord,
\nTenant or any other person(s), organization or court) shall not then be employed
\nby Landlord, Tenant or any Affiliate of Landlord or Tenant, and, in all other
\nrespects, shall be impartial. In addition, each arbitrator (x) shall meet the
\nspecific qualifications set forth in the applicable Authorizing Provisions, or
\n(y) if no such qualifications are so set forth in the Authorizing Provisions,
\nshall be an attorney with at least ten (10) years experience in commercial real
\nestate law in the Borough of Manhattan.<\/p>\n
40.08. Landlord and Tenant shall not be deemed to have agreed to
\nhave any dispute\/issue arising out of this lease determined by arbitration
\nunless a determination in such manner shall be expressly provided hereunder.<\/p>\n
ARTICLE 41<\/p>\n
Structural Work and Exterior Improvements<\/p>\n
41.01. For the purposes of this lease, the following terms shall
\nhave the following meanings:<\/p>\n
“TENANT’S PENTHOUSE ROOF AREA” shall mean the area on
\n the roof of the Building that is shown cross-hatched on Exhibit X-1
\n attached hereto.<\/p>\n
The “BUILDING PENTHOUSE” shall mean the existing
\n penthouse of the Building which is located in the area on the roof of the
\n Building that is shown cross-hatched on Exhibit X-2 attached hereto.<\/p>\n
“ANCILLARY TELECOMMUNICATIONS ROOF AREAS” shall mean the
\n areas on the roof of the Building that is shown hatched on Exhibit X-3
\n attached hereto, which area is adjacent to the Building Penthouse.<\/p>\n
The “REMAINING ROOF AREA” shall mean the entire area on
\n the roof of the Building, other than Tenant’s Penthouse Roof Area.<\/p>\n
“TENANT’S FUEL TANK AREA” shall mean the area on the
\n subcellar level (i.e., the third below-grade level) of the Building that
\n is shown cross-hatched on Exhibit X-4 attached hereto.<\/p>\n
“TENANT’S 20TH FLOOR ELECTRICAL POWER AREAS” shall mean,
\n collectively, the two (2) areas on the twentieth<\/p>\n
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\n (20th) floor of the Building that are shown hatched on Exhibit X-5
\n attached hereto, and denoted thereon as “Area of UPS” and “Area of
\n Electrical Distribution”, respectively.<\/p>\n
“TENANT’S STRUCTURAL WORK” shall mean, collectively, the
\n following work: (i) the installation of a structural support system for
\n the roof of the Building in accordance with the Structural Work
\n Preliminary Plans; (ii) the stiffening of certain of the Building’s
\n exterior columns on the forty-eighth (48th), forty-ninth (49th) and
\n fiftieth (50th) floors of the Building, by plating the inside surfaces
\n thereof in accordance with the Structural Work Preliminary Plans; (iii)
\n subsequent to the work described in clauses (i) and (ii) above having been
\n performed, the removal of certain of the interior columns on the fiftieth
\n (50th) floor of the Building in accordance with the Structural Work
\n Preliminary Plans; and (iv) any other work ancillary thereto which is
\n either shown on the Structural Work Preliminary Plans or otherwise
\n approved by Landlord (in its sole discretion).<\/p>\n
The “STRUCTURAL WORK PRELIMINARY PLANS” shall mean the
\n preliminary plans listed on Exhibit X-6 attached hereto.<\/p>\n
The “STRUCTURAL WORK IMPROVEMENTS” shall mean the
\n improvements, betterments, fixtures and equipment installed in the
\n Building by Tenant as part of Tenant’s Structural Work.<\/p>\n
The “PENTHOUSE WORK PRELIMINARY PLANS” shall mean the
\n preliminary plans attached hereto as Exhibit X-7.<\/p>\n
41.02. (a) Tenant, subject to and in accordance with the provisions
\nof Article 11 and the following provisions of this Article 41, shall have the
\nright to perform Tenant’s Structural Work. For purposes of applying Article 11
\nhereof to Tenant’s Structural Work, all Tenant’s Structural Work shall be deemed
\nExterior Material Alterations and Initial Alterations. In addition, Tenant’s
\nStructural Work shall be deemed Pre-Authorized Alterations, but only to the
\nextent that (i) such work is set forth on the Structural Work Preliminary Plans,
\nand (ii) such work is consistent with the provisions of Section 41.02(b) below.<\/p>\n
(b) Tenant acknowledges and agrees as follows with respect to
\nTenant’s Structural Work: (i) Tenant’s Structural Work shall be such that, after
\nits completion, the roof of the Building shall have a load capacity (in all
\nlocations) which is equal to or greater than the load capacity of the roof as of
\nthe date hereof; (ii) no Structural Work Improvements shall have a height or
\nelevation (measured from the structural roof) that is greater than the height or
\nelevation therefor as set forth on the Structural Work Preliminary Plans; and
\n(iii) no Structural Work Improvements shall illuminate any part of the roof of
\nthe Building.<\/p>\n
(c) (1) Tenant shall commence Tenant’s Structural Work (if at
\nall) promptly after Landlord’s approval of the plans and specifications therefor
\npursuant to Section 11.02(b) and Section 41.02(a) above, and, in all events,
\nshall commence Tenant’s Structural Work (if at all) on or prior to the
\nStructural Work Outside Start Date (as hereinafter defined). If, for any reason,
\nTenant shall fail to commence Tenant’s Structural Work on or prior to the
\nStructural Work Outside Start Date, then, notwithstanding anything to the
\ncontrary contained in this Section 41.02, Tenant shall no longer have the right
\nto perform Tenant’s Structural Work or any other rights under this Section
\n41.02. As used herein, the “STRUCTURAL WORK OUTSIDE START DATE” shall be
\nSeptember 1, 1994; provided, however, that the<\/p>\n
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\n 172
\nStructural Work Outside Start Date shall be postponed one day for each day that
\nTenant is delayed in commencing Tenant’s Structural Work by reason of either (i)
\none or more Events of Force Majeure, or (ii) one or more acts or omissions of
\nLandlord, which acts or omissions constitute a violation of this lease.<\/p>\n
(2) Tenant, after commencing Tenant’s Structural
\nWork (it being understood that, for purposes of this sentence only, the plating
\nof exterior columns alone shall not be deemed the commencement of Tenant’s
\nStructural Work), shall prosecute the same to completion with diligence and
\ncontinuity, and, in all events, shall complete Tenant’s Structural Work on or
\nprior to the Structural Work Outside Completion Date (as hereinafter defined).
\nIf, for any reason, Tenant shall fail to complete Tenant’s Structural Work on or
\nprior to the Structural Work Outside Completion Date, then, notwithstanding
\nanything to the contrary contained in this Section 41.02, Landlord, in addition
\nto any other rights or remedies it may have under this lease (including without
\nlimitation Landlord’s rights and remedies under Article 27 hereof, but
\nspecifically excluding Landlord’s right to terminate this lease as set forth in
\nArticle 22 hereof and any right to re-enter the Premises under Article 23
\nhereof) as a result of such failure, shall have the following rights and
\nremedies (which shall be cumulative): (i) Landlord shall have the right to cause
\nTenant to prosecute such work after Business Hours (as well as during Business
\nHours), until the same is completed, and to employ overtime labor for such
\npurposes, all at Tenant’s expense; and (ii) Landlord, unless and until it
\nexercises any rights it may have under Article 27 hereof, shall, in all other
\nevents, be entitled to receive from Tenant, and Tenant shall pay to Landlord, an
\namount equal to $2,000 per day for each day in the period commencing on the day
\nafter the Structural Work Outside Completion Date and ending on the date that
\nTenant actually completes Tenant’s Structural Work (or, if applicable, the date
\nthat Landlord exercises any rights it may have under Article 27 hereof), both
\ndays inclusive. As used herein, the “STRUCTURAL WORK OUTSIDE COMPLETION DATE”
\nshall be December 31, 1994; provided, however, that the Structural Work Outside
\nCompletion Date shall be postponed one day for each day that Tenant is delayed
\nin causing the completion of Tenant’s Structural Work by reason of either (i)
\none or more Events of Force Majeure, or (ii) one or more acts or omissions of
\nLandlord, which acts or omissions constitute a violation of this lease.<\/p>\n
(d) (1) Notwithstanding anything to the contrary
\ncontained in this lease, the Structural Work Improvements shall not be deemed
\n“Tenant’s Improvements”, but rather shall be deemed part of the “Base Building”
\n(except that, for purposes of Section 8.01(c)(iii) only, the Structural Work
\nImprovements shall be deemed Tenant’s Improvements).<\/p>\n
(2) Tenant, in respect of Tenant’s Structural Work
\nand the Structural Work Improvements, hereby agrees as follows: (i) Tenant shall
\npay, or reimburse Landlord, all costs reasonably incurred by Landlord in
\neffecting repairs or replacements to the Real Property (including without
\nlimitation repairs and replacements to the Structural Work Improvements)
\npursuant to Article 13 hereof or otherwise, to the extent that the need for such
\nrepair or replacement arises out of any defect or design deficiencies in
\nTenant’s Structural Work or the Structural Work Improvements of which Tenant is
\nnotified, or otherwise has knowledge of, prior to the expiration or earlier
\ntermination of this lease (or, in the case of an earlier termination of this
\nlease pursuant to Article 22 hereof, the Then Current Expiration Date) (except
\nto the extent that the need for any such repair or replacement so arising arises
\nout of any abuse, misuse, neglect or damage of or to the Structural Work
\nImprovements occurring after the completion of Tenant’s Structural Work, normal
\nwear and tear of or to the Structural Work Improvements, or the failure properly
\nto maintain the same<\/p>\n
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\n 173
\nafter the completion of Tenant’s Structural Work); (ii) Tenant, subject to and
\nin accordance with the provisions of Section 18.01 hereof (applied mutatis
\nmutandis), shall indemnify and hold harmless Landlord from and against any and
\nall claims brought prior to the expiration or earlier termination of this lease
\n(or, in the case of an earlier termination of this lease pursuant to Article 22
\nhereof, the Then Current Expiration Date) to the extent the such claims arise
\nout of any defect or design deficiencies in Tenant’s Structural Work or the
\nStructural Work Improvements (except to the extent that such claims so arising
\narise out of any abuse, misuse, neglect or subsequent damage of or to the
\nStructural Work Improvements occurring after the completion of Tenant’s
\nStructural Work, normal wear and tear of or to the Structural Work Improvements,
\nor the failure properly to maintain the same after the completion of Tenant’s
\nStructural Work); and (iii) Tenant shall pay to, or reimburse, Landlord all
\nother damages sustained or costs incurred by Landlord prior to the expiration or
\nearlier termination of this lease (or, in the case of an earlier termination of
\nthis lease pursuant to Article 22 hereof, the Then Current Expiration Date) to
\nthe extent that such damages or costs arise out of any defect or design
\ndeficiencies in Tenant’s Structural Work or the Structural Work Improvements
\n(except to the extent that such damages or costs so arising arise out of any
\nabuse, misuse, neglect or subsequent damage of or to the Structural Work
\nImprovements occurring after the completion of Tenant’s Structural Work, normal
\nwear and tear of or to the Structural Work Improvements, or the failure properly
\nto maintain the same after the completion of Tenant’s Structural Work). The
\nforegoing provisions of this Section 41.02(d)(2) shall not be deemed, in any
\nway, to limit any obligations or liability which Tenant might otherwise have on
\naccount of Tenant’s Structural Work or the Structural Work Improvements under
\nthis lease or otherwise at law or in equity. The foregoing provisions of this
\nSection 41.02(d)(2) shall be subject to the provisions of Section 18.03 hereof.
\nIn addition, Tenant, promptly upon the completion of Tenant’s Structural Work,
\nshall obtain for Landlord (in Landlord’s name) a roof warranty for the roof of
\nthe Building as the same exists upon the completion of Tenant’s Structural Work,
\nwhich roof warranty (I) shall be issued by one or more of the roof contractors
\nperforming Tenant’s Structural Work (or the manufacturer of the roofing
\nmaterials installed), (II) shall be in substantially the same form as Landlord’s
\nexisting roof warranty issued by GAF Building Materials Corporation (which
\nwarranty is issued to ESG on behalf of the Building) (such existing roof
\nwarranty being herein called “LANDLORD’S EXISTING ROOF WARRANTY”), and (III)
\nshall run for a period of not less than fifteen (15) years from the date of the
\ncompletion of the Tenant’s Structural Work.<\/p>\n
(e) (1) If (A) the Section 12.02(c) Work includes
\nremoval and restoration work in respect of the Structural Work Improvements, and
\n(B) Tenant is obligated to perform the same pursuant to Section 12.02(c)(2)
\nhereof, then Tenant, with respect to the Section 12.02(c) Work in respect of the
\nStructural Work Improvements and the improvements, betterments, fixtures and
\nequipment installed as part of such Section 12.02(c) Work, agrees as follows:
\n(i) Tenant shall pay, or reimburse Landlord, all costs reasonably incurred by
\nLandlord in effecting repairs or replacements to the Real Property (including
\nwithout limitation repairs and replacements to such improvements, betterments,
\nfixtures and equipment) pursuant to Article 13 hereof or otherwise, to the
\nextent that the need for such repair or replacement arises out of any defect or
\ndesign deficiencies in the such Section 12.02(c) Work or such improvements,
\nbetterments, fixtures and equipment of which Tenant is notified, or otherwise
\nhas knowledge of, prior to the fifth (5th) anniversary of the completion of such
\nSection 12.02(c) Work (except to the extent that the need for any such repair or
\nreplacement so arising arises out of any abuse, misuse, neglect or damage of or
\nto such improvements, betterments, fixtures and<\/p>\n
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\n 174
\nequipment occurring after the completion of such Section 12.02(c) Work, normal
\nwear and tear of or to such improvements, betterments, fixtures and equipment,
\nor the failure properly to maintain the same after the completion of such
\nSection 12.02(c) Work); (ii) Tenant, subject to and in accordance with the
\nprovisions of Section 18.01 hereof (applied mutatis mutandis), shall indemnify
\nand hold harmless Landlord from and against any and all claims brought prior to
\nthe fifth (5th) anniversary of the completion of such Section 12.02(c) Work to
\nthe extent that such claims arise out of any defect or design deficiencies in
\nsuch Section 12.02(c) Work or such improvements, betterments, fixtures and
\nequipment (except to the extent that such claims so arising arise out of any
\nabuse, misuse, neglect or subsequent damage of or to such improvements,
\nbetterments, fixtures and equipment occurring after the completion of such
\nSection 12.02(c) Work, normal wear and tear of or to such improvements,
\nbetterments, fixtures and equipment, or the failure properly to maintain the
\nsame after the completion of such Section 12.02(c) Work); and (iii) Tenant shall
\npay to, or reimburse, Landlord all other damages sustained or costs incurred by
\nLandlord prior to the fifth (5th) anniversary of the completion of such Section
\n12.02(c) Work to the extent such damages or costs arise out of any defect or
\ndesign deficiencies in such Section 12.02(c) Work or such improvements,
\nbetterments, fixtures and equipment (except to the extent that such damages or
\ncosts so arising arise out of any abuse, misuse, neglect or subsequent damage of
\nor to such improvements, betterments, fixtures and equipment occurring after the
\ncompletion of such Section 12.02(c) Work, normal wear and tear of or to such
\nimprovements, betterments, fixtures and equipment, or the failure properly to
\nmaintain the same after the completion of such Section 12.02(c) Work). The
\nforegoing provisions of this Section 41.02(e)(1) shall not be deemed, in any
\nway, to limit any obligations or liability which Tenant might otherwise have on
\naccount of the Section 12.02(c) Work in respect of the Structural Work
\nImprovements under this lease or otherwise at law or in equity. The foregoing
\nprovisions of this Section 41.02(e)(1) shall be subject to the provisions of
\nSection 18.03 hereof. In addition, Tenant, promptly upon the completion of the
\nSection 12.02(c) Work in respect of the Structural Work Improvements, shall
\nobtain for Landlord (in Landlord’s name) a roof warranty for the roof of the
\nBuilding as the same exists upon the completion of the Section 12.02(c) Work in
\nrespect of the Structural Work Improvements, which roof warranty (I) shall be
\nissued by one or more of the roof contractors performing such Section 12.02(c)
\nWork (or the manufacturer of the roofing materials installed), (II) shall be in
\nsubstantially the same form as Landlord’s Existing Roof Warranty, and (III)
\nshall run for a period of not less than fifteen (15) years from the date of the
\ncompletion of such Section 12.02(c) Work.<\/p>\n
(2) If Landlord, pursuant to Section 12.02(c)(3),
\nelects to perform the Section 12.02(c) Work in respect of the Structural Work
\nImprovements at Tenant’s expense, then, without limiting the costs for which
\nTenant shall be obligated to reimburse Landlord under Section 12.02(c)(3),
\nTenant shall reimburse Landlord the costs incurred by Landlord in obtaining (in
\nLandlord’s name) a roof warranty for the roof of the Building as the same exists
\nupon the completion of the Section 12.02(c) Work in respect of the Structural
\nWork Improvements, which roof warranty (I) shall be issued by one or more of the
\nroof contractors performing such Section 12.02(c) Work (or the manufacturer of
\nthe roofing materials installed), (II) shall be in substantially the same form
\nas Landlord’s Existing Roof Warranty, and (III) shall run for a period of not
\nless than fifteen (15) years from the date of the completion of such Section
\n12.02(c) Work.<\/p>\n
(f) Tenant acknowledges the existence of ACMs in the areas
\nof the Building in which Tenant’s Structural Work will be performed. If, as a
\nresult of the Tenant’s Structural<\/p>\n
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\n 175
\nWork, any ACMs in the Building are required to be removed, encapsulated or
\notherwise treated by any law or requirement of public authority, then,
\nnotwithstanding anything to the contrary contained in Article 8 hereof
\n(including without limitation Section 8.06 hereof), Tenant, at its expense,
\nshall promptly remove, encapsulate or otherwise treat such ACMs in accordance
\nwith all laws and requirements of public authorities. All the work required
\nunder this Section 41.02(f) shall be performed in accordance with Article 11
\nhereof and shall constitute Pre-Authorized Alterations and, to the extent Tenant
\nperforms Tenant’s Structural Work, Required Alterations.<\/p>\n
41.03. (a) Tenant, subject to and in accordance with the provisions
\nof Article 11 and further subject to the following provisions of this Article
\n41, shall have the following rights:<\/p>\n
(1) the right to install a penthouse on the roof
\n of the Building in Tenant’s Penthouse Roof Area in accordance with the
\n Penthouse Work Preliminary Plans (it being further agreed that, in all
\n events, (A) such penthouse shall be wholly within Tenant’s Penthouse Roof
\n Area, (B) such penthouse shall be enclosed by walls (of uniform height) on
\n all four sides and by a roof of uniform height on top (except that such
\n roof need not extend the entire penthouse, i.e., a portion thereof may not
\n be covered by a roof), (C) such penthouse shall be of a height or
\n elevation (measured from the structural roof of the Building to the top of
\n the roof of such penthouse) which is not greater than that set forth on
\n the Penthouse Work Preliminary Plans, and (D) ingress and egress to such
\n penthouse shall be only by means of the doors which are shown on the
\n Penthouse Work Preliminary Plans) (such penthouse, as installed by Tenant,
\n being herein called “TENANT’S PENTHOUSE”; and the portion of Tenant’s
\n Penthouse which is covered by a roof is herein is separately referred to
\n as the “CLOSED PORTION” of Tenant’s Penthouse and the portion of Tenant’s
\n Penthouse which is not covered by a roof is herein separately referred to
\n as the “OPEN PORTION” of Tenant’s Penthouse); provided, further, that if
\n Tenant installs Tenant’s Penthouse, then Tenant, at its expense and for
\n the benefit of Landlord, shall cause Tenant’s Penthouse to include
\n facilities which provides an accommodation of counterbalance to adequately
\n support the Building’s facade cleaning rig, together with facilities for
\n affixing cables (such facilities are herein called the “RIG FACILITIES”;
\n it being agreed that such Rig Facilities shall, for all purposes, be
\n deemed part of Tenant’s Penthouse); and<\/p>\n
(2) the right to install the partition delineated
\n on the Penthouse Work Preliminary Plans, which allows for direct access
\n from one or more of the Building’s roof entrances to Tenant’s Penthouse,
\n but not from such entrance to the balance of the roof other than by
\n emergency exit (such partition, as installed by Tenant, being herein
\n called the “PENTHOUSE ROOF PARTITION”).<\/p>\n
The work required to install Tenant’s Penthouse and the Penthouse Roof Partition
\nis herein collectively called the “TENANT’S PENTHOUSE WORK”. For purposes of
\napplying Article 11 hereof to Tenant’s Penthouse Work, all Tenant’s Penthouse
\nWork shall be deemed Exterior Material Alterations. In addition, Tenant’s
\nPenthouse Work shall be deemed Pre-Authorized Alterations, but only to the
\nextent that (i) such work is set forth on the Penthouse Work Preliminary Plans,
\nand (ii) such work is otherwise consistent with the provisions of Section
\n41.03(a) above.<\/p>\n
(b) If Tenant installs Tenant’s Penthouse, then Tenant,
\nsubject to and in accordance with the provisions of Articles 11 hereof and
\nfurther subject to the following provisions of this Article 41, shall have the
\nfollowing rights:<\/p>\n
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\n 176
\n (1) the right, from time to time, to install one
\n or more fuel powered, diesel driven emergency generators and related
\n equipment in one or more locations within the Closed Portion of Tenant’s
\n Penthouse (such emergency generators and related equipment, as installed
\n from time to time, being herein collectively called “TENANT’S GENERATOR
\n UNITS”);<\/p>\n
(2) the right, from time to time, to install one
\n or more fuel tanks, together with fuel pumps, in Tenant’s Fuel Tank Area
\n (such fuel tanks and fuel pumps being herein collectively called “TENANT’S
\n FUEL TANK”);<\/p>\n
(3) the right, in connection with Tenant’s
\n installation of the initial Tenant’s Generator Units and the initial
\n Tenant’s Fuel Tank, to install, on the subcellar level of the Building, a
\n pipe enclosure containing both fill and vent pipes (which enclosure shall
\n not exceed 12 inches in diameter, in the aggregate) to supply fuel from
\n the sidewalk to Tenant’s Fuel Tank, which fuel pipe shall be located in
\n the location on the subcellar level of the Building delineated on Exhibit
\n X-4 attached hereto (such fuel pipe being herein called “TENANT’S SUPPLY
\n FUEL PIPE”);<\/p>\n
(4) the right, in connection with Tenant’s
\n installation of the initial Tenant’s Generator Units and the initial
\n Tenant’s Fuel Tank, to install a one or more fuel pipes running together
\n from from Tenant’s Fuel Tank to Tenant’s Generator Units (which pipes
\n being herein collectively called “TENANT’S MAIN FUEL PIPES”), which
\n Tenant’s Main Fuel Pipes shall run vertically through a single Tenant’s
\n Section 41.09 Enclosure (it being agreed that Tenant’s Main Fuel Pipes
\n shall run though such Tenant’s Section 41.09 Enclosure within a masonry
\n enclosure, which masonry enclosure shall not exceed 20 inches by 20
\n inches), and, to the extent that Tenant’s Main Fuel Pipes need to run
\n horizontally, the same shall be run together in locations reasonably
\n designated by Landlord and shall continue to be enclosed within such
\n masonry enclosure and otherwise as reasonably determined by Landlord;
\n provided, however, that Tenant’s right to install any Tenant’s Main Fuel
\n Pipes shall be conditioned upon (i) Tenant having theretofore installed,
\n or Tenant contemporaneously therewith installing, a Tenant’s Section 41.09
\n Enclosure, (ii) there being sufficient space within such Tenant’s Section
\n 41.09 Enclosure to install such Tenant’s Main Fuel Pipes; and<\/p>\n
(5) the right, from time to time, to install one
\n or more electrical conduits connecting Tenant’s Generator Units to the
\n Premises Floors, Tenant’s 20th Floor Electrical Power Areas, and Tenant’s
\n Fuel Tank (such electrical conduits being herein called “TENANT’S
\n GENERATOR ELECTRICAL CONDUITS”), all of which electrical conduits shall
\n run vertically through Tenant’s Section 41.09 Enclosures, and, to the
\n extent any of such electrical conduits need to run horizontally, the same
\n shall be run in locations reasonably designated by Landlord; provided,
\n however, that Tenant’s right to install any such electrical conduit shall
\n be conditioned upon (i) Tenant having theretofore installed, or Tenant
\n contemporaneously therewith installing, a Tenant’s Section 41.09
\n Enclosure, and (ii) there being sufficient space within Tenant’s Section
\n 41.09 Enclosures to install such such electrical conduit.<\/p>\n
Tenant’s Generator Units, Tenant’s Fuel Tank, Tenant’s Supply Fuel Pipe,
\nTenant’s Main Fuel Pipes and Tenant’s Generator Electrical Conduits are herein
\ncollectively called “TENANT’S GENERATOR”. Any work required to install Tenant’s
\nGenerator, or any of the components thereof, is herein called “TENANT’S
\nGENERATOR WORK”. For purposes of applying Article 11 hereof to<\/p>\n
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\n 177
\nTenant’s Generator Work, the same shall be deemed both Exterior Material
\nAlterations and Pre-Authorized Alterations.<\/p>\n
(c) If Tenant installs Tenant’s Penthouse, then Tenant,
\nsubject to and in accordance with the provisions of Articles 11 hereof and
\nfurther subject to the following provisions of this Article 41, shall have the
\nfollowing rights:<\/p>\n
(1) the right, from time to time, to install one
\n or more chillers and related equipment, in one or more locations within
\n the Closed Portion of Tenant’s Penthouse and\/or one or more cooling towers
\n and related equipment within the Open Portion of Tenant’s Penthouse, it
\n being agreed that no such chiller, cooling tower or related equipment
\n shall have a height or elevation (measured from the structural roof) which
\n is greater than that of the walls of the Open Portion of Tenant’s
\n Penthouse (such chillers, cooling towers and related equipment, as
\n installed from time to time, being herein collectively called “TENANT’S
\n COOLING PLANT UNITS”);<\/p>\n
(2) the right to install a water pipe (not to
\n exceed 2 inches in diameter), to supply domestic water from the valved
\n outlet to be located on the roof of the Building (after the completion of
\n the Secondary Work) to Tenant’s Cooling Plant Units, which water pipe
\n shall be located on the roof in a location to be reasonably designated by
\n Landlord and shall be enclosed as reasonably determined by Landlord (such
\n water pipe being herein called “TENANT’S MAKE-UP WATER PIPE”);<\/p>\n
(3) the right to install two (2) water pipes to
\n distribute chilled or condenser water from Tenant’s Cooling Plant Units to
\n the Premises Floors and Tenant’s UPS Room and to return such water to
\n Tenant’s Cooling Plant Units (each of which pipes shall not exceed 3
\n inches in diameter between 20th and 41st floors of the Building and shall
\n not exceed 10 inches in diameter between the 41st floor of the Building
\n and the roof) (such water pipe being herein called “TENANT’S COOLING PLANT
\n WATER LOOP”), which water pipes shall run vertically through Tenant’s
\n Section 41.09 Enclosures, and, to the extent any of such water pipes need
\n to run horizontally, the same shall be run in locations reasonably
\n designated by Landlord and shall be enclosed as reasonably determined by
\n Landlord; provided, however, that Tenant’s right to install Tenant’s
\n Cooling Plant Water Loop shall be conditioned upon (i) Tenant having
\n theretofore installed, or Tenant contemporaneously therewith installing, a
\n Tenant’s Section 41.09 Enclosure, and (ii) there being sufficient space
\n within Tenant’s Section 41.09 Enclosures to install Tenant’s Cooling Plant
\n Water Loop.<\/p>\n
Tenant shall distribute electricity to Tenant’s Cooling Plant Units through one
\nor more of Tenant’s Supplemental Electricity Conduits installed pursuant to
\nSection 14.02(c) hereof (the Tenant’s Supplemental Electricity Conduits so used
\nare herein called “TENANT’S COOLING PLANT ELECTRICAL CONDUITS”). Tenant’s
\nCooling Plant Units, Tenant’s Make-Up Water Pipe, Tenant’s Cooling Plant
\nElectrical Conduits and Tenant’s Cooling Plant Water Loop are herein
\ncollectively called “TENANT’S COOLING PLANT”. Any work required to install
\nTenant’s Cooling Plant (other than the installation of Tenant’s Cooling Plant
\nElectrical Conduits), is herein called “TENANT’S COOLING PLANT WORK”. For
\npurposes of applying Article 11 hereof to Tenant’s Cooling Plant Work, the same
\nshall be deemed both Exterior Material Alterations and Pre-Authorized
\nAlterations.<\/p>\n
(d) Tenant, after it shall have installed the Tenant’s
\nGenerator and\/or Tenant’s Cooling Plant shall have the right to operate the
\nsame, subject to the following<\/p>\n
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\nprovisions of this Section 41.03(d) as well as any other applicable provisions
\nof this lease. Tenant shall operate each of Tenant’s Generator and Tenant’s
\nCooling Plant (i) subject to, and in a manner so as to comply with, all laws and
\nrequirements of public authorities relating thereto (and, accordingly, Tenant
\nshall obtain any licenses and permits required in that regard), (ii) in a manner
\nso as to not interfere with the reception, transmission or other operation of
\nany antennae or other telecommunications equipment now or hereafter located on
\nthe roof of the Building, and (iii) in a manner so as to not otherwise interfere
\n(other than to a de minimis manner) with the use and occupancy of the Building
\nby others. Without limiting the generality of the foregoing, Tenant shall not
\npermit the noise or vibrations caused by either or both of Tenant’s Generator or
\nTenant’s Cooling Plant, at any time or times, to exceed the maximum allowable
\nlevels therefor set forth on the noise and vibration specifications attached
\nhereto as Exhibit X-8. Landlord, at its expense, shall have right to measure the
\nnoise or vibrations caused by Tenant’s Generator and\/or Tenant’s Cooling Plant
\nto confirm that the same is in conformity with the specifications set forth on
\nExhibit X-8, and to temporarily or permanently install equipment for that
\npurpose. Furthermore, Tenant shall not test Tenant’s Generator, other than on
\nSaturdays after 1:00 p.m. and on Sundays. Nothing in this Section 41.03(d) is
\nintended to limit any other provisions of this lease as the same may apply to
\nthe operation of Tenant’s Generator or Tenant’s Cooling Plant.<\/p>\n
(e) Tenant, subject to and in accordance with the
\nprovisions of Article 13 hereof, shall have the right and obligation to repair
\nand replace, and maintain in good working order and condition, Tenant’s
\nPenthouse, Tenant’s Penthouse Partition, Tenant’s Generator and Tenant’s Cooling
\nPlant. In connection therewith, however, if Tenant installs Tenant’s Penthouse
\nand Tenant’s Penthouse Partition, then the provisions of the second sentence of
\nSection 13.01(c)(1) hereof shall not apply with respect to repairs, replacements
\nand maintenance to Tenant’s Generator and Tenant’s Cooling Plant which are
\nperformed wholly within Tenant’s Penthouse.<\/p>\n
(f) If either applicable law or a union requirement
\nrequires that one or more operating engineers be retained in connection with the
\noperation of Tenant’s Cooling Plant, then Tenant, at its expense, shall directly
\nemploy (or shall cause to be directly employed by one of its contractors) such
\noperating engineers as are needed to so comply. If either applicable law or a
\nunion requirement requires Landlord to retain one or more operating engineers by
\nreason of the addition of Tenant’s Cooling Plant to the other HVAC equipment
\nserving the Building (including without limitation Landlord’s HVAC equipment for
\nthe Building and any supplemental HVAC equipment installed and operated by or
\nfor any tenant(s) of the Building), and such law or union requirement cannot be
\ncomplied with by Tenant employing directly (or causing one of its contractors to
\nemploy directly) an operating engineer to be present during the operation of
\nTenant’s Cooling Plant (it being agreed that if such law or union requirement
\ncan be complied with by Tenant directly employing, or causing one of its
\ncontractors to directly employ, an operating engineer, that Tenant shall do so),
\nthen Tenant, within thirty (30) days after its receipt of any written demand
\ntherefor, shall pay, or reimburse Landlord, the actual costs of employing any
\nsuch operating engineer(s).<\/p>\n
(g) Notwithstanding anything to the contrary contained
\nabove in this Section 41.03, Landlord, and persons authorized by Landlord, shall
\nhave the exclusive right to utilize the Rig Facilities in connection with the
\noperation and maintenance of the Building.<\/p>\n
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\n 41.04. (a) Tenant, subject to and in accordance with the
\nprovisions of Article 11 hereof and further subject to the following provisions
\nof this Article 41, shall have the following rights:<\/p>\n
(1) the right, from time to time, to install,
\n operate and maintain, on the “roof level” of the Building Penthouse (as
\n more particularly provided below), up to four (4) microwave dishes (no one
\n of which microwave dishes shall exceed 2 meters in diameter and no more
\n than two of which microwave dishes shall exceed 1 meter in diameter),
\n together with the ancillary equipment therefor (each such microwave dish,
\n as installed, together with the ancillary equipment therefor, being herein
\n called a “TENANT’S MICROWAVE DISH”);<\/p>\n
(2) the right, from time to time, to install,
\n operate and maintain, on the “roof level” of the Building Penthouse (as
\n more particularly provided below), up to two (2) “mast type” antennae (no
\n one of which shall exceed 3 meters in height), together with the ancillary
\n equipment therefor (each such “mast type” antenna, as installed, together
\n with its ancillary equipment therefor, being herein called a “TENANT’S
\n ANTENNA”); and<\/p>\n
(3) the right, from time to time, to install one
\n or more telecommunications cable conduits (no one of which shall exceed 2
\n inches in diameter), to connect each Tenant’s Microwave Dish and each
\n Tenant’s Antenna to the Premises Floors, which conduits shall run
\n vertically through one or more of Tenant’s Stairwell B Enclosure, Tenant’s
\n Stairwell E Enclosure or Tenant’s Section 41.09 Enclosures, and, to the
\n extent the same need to run horizontally, the same shall be run in
\n locations reasonably designated by Landlord (such telecommunications cable
\n conduits being herein collectively called “TENANT’S TELECOMMUNICATIONS
\n CABLE CONDUITS”); provided, however, that Tenant’s right to install any
\n Tenant’s Telecommunications Cable Conduit shall be conditioned upon (i)
\n Tenant having theretofore installed, or Tenant contemporaneously therewith
\n installing, Tenant’s Stairwell B Enclosure, Tenant’s Stairwell E Enclosure
\n or a Tenant’s Section 41.09 Enclosure, and (ii) there being sufficient
\n space within such enclosures to install such Tenant’s Telecommunications
\n Cable Conduit.<\/p>\n
Tenant’s Microwave Dishes, Tenant’s Antennae and Tenant’s Telecommunications
\nCable Conduits are herein collectively called “TENANT’S TELECOMMUNICATIONS
\nEQUIPMENT”. Any work required to install Tenant’s Telecommunications Equipment,
\nor any of the components thereof, is herein called “TENANT’S TELECOMMUNICATIONS
\nWORK”. For purposes of applying Article 11 hereof to Tenant’s Telecommunications
\nWork, the same shall be deemed Exterior Material Alterations and, to the extent
\nthe same is consistent with the provisions of Section 41.04(b) below,
\nPre-Authorized Alterations.<\/p>\n
(b) Tenant’s right to install, operate and maintain any
\nTenant’s Telecommunications Equipment shall be further subject to the following
\nprovisions (as well as any other applicable provisions of this lease):<\/p>\n
(1) The particular location on the “roof level” of
\nthe Building Penthouse on which each Tenant’s Microwave Dish and each Tenant’s
\nAntenna shall be located shall be such available location thereon as is first
\nselected by Tenant and then approved by Landlord (which approval by Landlord
\nshall not be unreasonably withheld).<\/p>\n
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\n 180
\n (2) Tenant acknowledges that its right to place any
\nTenant’s Microwave Dish or Tenant’s Antenna on the Building’s Penthouse shall be
\nnon-exclusive.<\/p>\n
(3) Tenant shall operate Tenant’s Telecommunications
\nEquipment subject to, and in a manner so as to comply with, all laws and
\nrequirements of public authorities relating thereto (and, accordingly, shall
\nobtain any licenses and permits required in that regard, including without
\nlimitation all required operating permits and approvals from the Federal
\nCommunications Commission).<\/p>\n
(4) No Tenant’s Microwave Dish or Tenant’s Antenna
\nshall interfere with the reception, transmission or other operation of any other
\ntelecommunications dish, antennae or other equipment placed on the roof of the
\nBuilding prior to the installation of such Tenant’s Microwave Dish or Tenant’s
\nAntenna. In each case that Landlord shall hereafter grant to any other person
\nthe right to install any telecommunications dish, antenna or other equipment on
\nthe roof of the Building, Landlord shall (i) as part of such grant, prohibit
\nsuch other person from installing any such telecommunications dish, antenna or
\nother equipment which will interfere with the reception, transmission or other
\noperation of any Tenant’s Microwave Dish or Tenant’s Antenna which was installed
\non the roof of the Building prior to the installation of such other person’s
\ntelecommunications dish, antenna or other equipment (it being understood that in
\ndetermining when any particular telecommunications dish, antenna or other
\nequipment was installed, any relocation thereof at the instance or request of
\nLandlord shall be disregarded), and (ii) thereafter use reasonable efforts to
\nenforce any such prohibition (which reasonable efforts shall include litigation,
\nbut only to the extent Landlord, in its reasonable judgement, believes that
\nlitigation is the most expeditious way to facilitate a cessation of such
\nperson’s failure to observe such prohibition).<\/p>\n
(5) Landlord, from time to time during the term of
\nthis lease, shall have the right, upon not less than twenty (20) days’ prior
\nwritten notice to Tenant (each, a “SECTION 41.04 RELOCATION NOTICE”), to (i)
\ncause Tenant to relocate any one or more of Tenant’s Microwave Dishes or
\nTenant’s Antennae to a new location(s) on the roof of the Building designated by
\nLandlord, and (ii) in connection therewith, cause Tenant to relocate any other
\nTenant’s Telecommunications Equipment; provided, however, that the quality of
\nthe reception and\/or transmission of any relocated Tenant’s Microwave Dish or
\nTenant’s Antenna in its new location on the roof of the Building shall not be
\nless than the quality of the reception and\/or transmission thereof in its prior
\nlocation. Tenant, subject to and in accordance with the provisions of Article 11
\nhereof, shall perform all the work needed to effect any such required relocation
\n(such work to be deemed Pre-Authorized Alterations upon Tenant’s receipt of the
\napplicable Section 41.04 Relocation Notice), and, in all events, shall complete
\nsuch relocation work within twenty (20) days after its receipt of the applicable
\nSection 41.04 Relocation Notice. Landlord, within thirty (30) days after a
\nwritten demand therefor, shall reimburse Tenant all of Tenant’s out-of-pocket
\ncosts reasonably incurred in connection with such relocation work.<\/p>\n
(c) Tenant, subject to and in accordance with the
\nprovisions of Article 13 hereof, shall have the right and obligation to repair
\nand replace, and maintain in good working order and condition, Tenant’s
\nTelecommunications Equipment.<\/p>\n
41.05. (a) Tenant, subject to and in accordance with the provisions
\nof Articles 11 hereof and further subject to the following provisions of this
\nArticle 41, shall have the right (i) to install in the Tenant’s 20th Floor
\nElectrical Power Area denoted on Exhibit X-5 attached hereto as “Area of UPS” an<\/p>\n
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\n 181
\nenclosed room (herein called “TENANT’S UPS ROOM”), and to install within
\nTenant’s UPS Room an uninterruptable power supply system, which system is more
\nparticularly described on Exhibit X-9 attached hereto (such uninterruptable
\npower supply system being herein called “TENANT’S UPS UNITS”), and (ii) to
\ninstall in the Tenant’s 20th Floor Electrical Power Area denoted on Exhibit X-5
\nattached hereto as “Area of Electrical Distribution” an enclosed room (herein
\ncalled “TENANT’S ELECTRICAL DISTRIBUTION ROOM”), and to install within Tenant’s
\nElectrical Distribution Room electrical distribution equipment to be utilized in
\nthe distribution of Tenant’s Supplemental Electricity (such equipment being
\nherein called “TENANT’S ELECTRICAL DISTRIBUTION ROOM EQUIPMENT”). Tenant’s UPS
\nRoom and Tenant’s UPS Units, together with any Tenant’s Supplemental Electrical
\nConduits running to or from any of thereof (and installed pursuant to Section
\n14.02 hereof), are herein collectively called “TENANT’S UPS SYSTEM”. The work
\nrequired to install Tenant’s UPS System (other than the aforementioned Tenant’s
\nSupplemental Electrical Conduits) is herein called “TENANT’S UPS WORK”. Tenant’s
\nElectrical Distribution Room and Tenant’s Electrical Distribution Room
\nEquipment, together with any Tenant’s Supplemental Electrical Conduits running
\nto or from any of thereof (and installed pursuant to Section 14.02 hereof), are
\nherein collectively called “TENANT’S ELECTRICAL DISTRIBUTION SYSTEM”. The work
\nrequired to install Tenant’s Electrical Distribution System (other than the
\naforementioned Tenant’s Supplemental Electrical Conduits) is herein called
\n“TENANT’S ELECTRICAL DISTRIBUTION WORK”. For purposes of applying Article 11
\nhereof to Tenant’s UPS Work and Tenant’s Electrical Distribution Work, each of
\nthe same shall be deemed Exterior Material Alterations and Pre-Authorized
\nAlterations.<\/p>\n
(b) Tenant, after installing Tenant’s UPS System and\/or
\nTenant’s Electrical Distribution System, shall have the right to operate the
\nsame, subject to the following provisions of this Section 41.05(b) as well as
\nany other applicable provisions of this lease. Tenant shall operate Tenant’s UPS
\nSystem and Tenant’s Electrical Distribution System (i) subject to, and in a
\nmanner so as to comply with, all laws and requirements of public authorities
\nrelating thereto (and, accordingly, shall obtain any licenses and permits
\nrequired in that regard), and (ii) in a manner so as not to otherwise interfere
\n(other than in a de minimis manner) with the use and occupancy of the Building
\nby others. Without limiting the generality of the foregoing, Tenant shall not
\npermit the noise or vibrations caused by Tenant’s UPS System and\/or Tenant’s
\nElectrical Distribution System, at any time or times, to exceed the maximum
\nallowable levels therefor set forth on the noise and vibration specifications
\nattached hereto as Exhibit X-8. Landlord, at its expense, shall have the right
\nto measure the noise or vibrations caused by Tenant’s UPS System and\/or Tenant’s
\nElectrical Distribution System to confirm that the same is in conformity with
\nthe specifications set forth on Exhibit X-8, and to temporarily or permanently
\ninstall equipment for that purpose. Nothing in this Section 41.05(b) is intended
\nto limit any other provisions of this lease as the same may apply to the
\noperation of Tenant’s UPS System and\/or Tenant’s Electrical Distribution System.<\/p>\n
(c) Tenant, subject to and in accordance with the
\nprovisions of Article 13 hereof and the following provisions of this Section
\n41.05(c), shall have the right and obligation to repair and replace, and
\nmaintain in good working order and condition, Tenant’s UPS System and Tenant’s
\nElectrical Distribution System. Tenant acknowledges that the twentieth (20th)
\nfloor of the Building may contain various portions of the Building Systems as
\nwell as other electrical and mechanical equipment, to which Tenant shall have no
\naccess rights. Accordingly, Tenant’s access to Tenant’s 20th Floor Electrical
\nPower Areas shall be subject to Landlord’s reasonable security<\/p>\n
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\n 182
\nrequirements, which shall be designed to permit Tenant access to Tenant’s 20th
\nFloor Electrical Power Areas while prohibiting such access to other areas of the
\ntwentieth (20th) floor of the Building (such reasonable security requirements
\nmay include, without limitation, the installation of a card key access system).
\nSubject to the foregoing provisions of this Section 41.05(c), the provisions of
\nthe second sentence of Section 13.01(c)(1) hereof shall not apply with respect
\nto repairs, replacements and maintenance to Tenant’s UPS System which are
\nperformed wholly within either Tenant’s UPS Room or repairs, replacements and
\nmaintenance to Tenant’s Electrical Distribution System performed wholly within
\nTenant’s Electrical Distribution Room.<\/p>\n
41.06. (a) The rights granted to Tenant in this Article 41 are
\ngiven in connection with, and as part of the rights created under, this lease
\nand are not separately transferrable or assignable (and, accordingly, may not be
\nassigned except in connection with a permitted assignment of this lease pursuant
\nto Article 7 hereof).<\/p>\n
(b) All the Tenant Improvements installed pursuant to the
\nprovisions of Sections 41.03, 41.04 and 41.05 hereof (inclusive of Tenant’s
\nPenthouse, Tenant’s Generator, Tenant’s Cooling Plant, Tenant’s
\nTelecommunications Equipment, Tenant’s UPS System and Tenant’s Electrical
\nDistribution System) shall be for the sole use and benefit of Tenant and, at
\nTenant’s option, any permitted subtenant of Tenant; and shall not be used by, or
\nfor the benefit of, any other parties. Without limiting the generality of the
\nforegoing, Tenant shall not resell, or grant licenses to, any rights in respect
\nof any such Tenant’s Improvements (other than to any permitted subtenant of
\nTenant pursuant to its sublease, and, in which event, the amounts so paid by the
\nsubtenant shall be deemed Sublease Consideration).<\/p>\n
(c) Tenant acknowledges and agrees that its right to
\nperform any of the work described in this Article 41 (including without
\nlimitation Tenant’s Structural Work, Tenant’s Penthouse Work, Tenant’s Generator
\nWork, Tenant’s Cooling Plant Work, Tenant’s UPS Work, Tenant’s Electrical
\nDistribution Work and the Fire Tower Work or, as the case may be, the Hot Deck
\nWork) or any of Sections 14.02, 16.11 or 16.14 hereof shall be subject to the
\nfollowing terms and conditions: (i) Tenant’s right to perform any such work in,
\nor otherwise obtain access to, any leased areas of the Building (including
\nwithout limitation the areas of the forty-seventh (47th) floor of the Building
\nleased to PSI) shall be subject to the rights of the tenant(s) thereof; (ii)
\nTenant, throughout the prosecution of such work, shall take such actions as are
\nneeded to prevent any water or other damage to the Building or the Real Property
\nwhich may be directly or indirectly occasioned by reason of such work or the
\nprosecution thereof; and (iii) in the case of any such work performed on or
\nabout the roof of the Building, Tenant shall perform such work in a manner so
\nthat the prosecution thereof shall not disrupt, or interfere with the reception,
\ntransmission or other operation of, any telecommunications or other equipment
\nlocated on the roof of the Building during such prosecution (whether now
\nexisting or hereafter installed); except that, in the case of Tenant’s
\nStructural Work, the provisions of clause (iii) of this sentence shall not apply
\nto any telecommunications and related equipment which are hereafter installed on
\nthe roof of the Building other than on the Building Penthouse or in the
\nAncillary Telecommunications Roof Areas. Nothing in this Section 41.06(c) shall
\nbe deemed to limit any provision of Article 11 hereof (or any other applicable
\nprovisions of this lease) as applied to any of the foregoing Alterations.<\/p>\n
(d) Tenant shall indemnify and hold harmless Landlord and
\nall Landlord Parties from and against any and all claims (to the extent in
\nexcess of any sums reimbursed by<\/p>\n
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\n 183
\ninsurance or, which would have been so reimbursed if Landlord had maintained the
\ninsurance required to be maintained by it hereunder) to the extent that the same
\narises from (i) conduct in, or the management of, Tenant’s Fuel Tank Area or
\nTenant’s 20th Floor Electrical Power Areas, or, from and after the commencement
\nof the Penthouse Work, Tenant’s Penthouse Roof Area, or of any operations
\ntherein, or any condition created (other than by Landlord or any Landlord Party
\nor any contractor of Landlord or any Landlord Party) in, at or upon Tenant’s
\nFuel Tank Area or Tenant’s 20th Floor Electrical Power Areas, or, from and after
\nthe commencement of the Penthouse Work, Tenant’s Penthouse Roof Area, or (ii)
\nany accident, injury or damage whatever (except to the extent caused by any
\nnegligence or willful misconduct of Landlord or any Landlord Party or any
\ncontractor of Landlord or any Landlord Party) occurring in, at or upon Tenant’s
\nFuel Tank Area or Tenant’s 20th Floor Electrical Power Areas, or, from and after
\nthe commencement of the Penthouse Work, Tenant’s Penthouse Roof Area; together,
\nsubject to the provisions of this Section 41.06(d), with all costs, expenses and
\nliabilities incurred in or in connection with each such claim or any action or
\nproceeding brought thereon, including, without limitation, all reasonable
\nattorneys’ fees and expenses. If any such claim is asserted against Landlord
\nand\/or any Landlord Party, Landlord shall give Tenant prompt notice thereof. If
\nTenant shall, in good faith, believe that such claim is or may not be within the
\nscope of the indemnity set forth in this Section 41.06(d), then, pending
\ndetermination of that question, Tenant shall not be deemed to be in default
\nunder this lease by reason of its failure or refusal to indemnify and hold
\nharmless Landlord or any Landlord Party therefrom or to pay such costs, expenses
\nand liabilities, but if it shall be finally determined by a court of competent
\njurisdiction that such claim was within the scope of the indemnity set forth in
\nthis Section 41.06(d), then Tenant shall be liable for any judgement or
\nreasonable settlement or any reasonable legal fees incurred by the party
\nentitled to indemnity hereunder. If the issuer of any insurance policy
\nmaintained by Tenant shall assume the defense of any claim then Landlord shall
\npermit such insurance carrier to defend the claim with its counsel and (x)
\nneither Landlord nor any Landlord Party shall settle such claim without the
\nconsent of the insurance carrier (unless such settlement would relieve Landlord
\nor such Landlord Party of all liability for which Tenant or its insurance
\ncarrier may be liable hereunder), (y) Landlord and all Landlord Parties shall
\nreasonably cooperate, at Tenant’s expense, with the insurance carrier in its
\ndefense of any such claim, and (z) Tenant shall not be liable for the costs of
\nany separate counsel employed by Landlord or any Landlord Party. Tenant’s
\ninsurance obligations under Section 9.03(b) hereof shall apply, mutatis
\nmutandis, to Tenant’s Fuel Tank Area and Tenant’s 20th Floor Electrical Power
\nAreas, and, after the commencement of Tenant’s Penthouse Work, Tenant’s
\nPenthouse Roof Area, as fully as the same apply to the Premises under Section
\n9.03(b) hereof.<\/p>\n
(e) Notwithstanding anything to the contrary contained in
\nthis Article 41, the rights granted under this Article 41 to utilize any of the
\nTenant’s Penthouse Roof Area, Tenant’s Fuel Tank Area and the Tenant’s 20th
\nFloor Electrical Power Areas for the purposes permitted hereunder are subject to
\nall such space being made available to Tenant in its “as is” condition as of the
\ndate hereof (Tenant having inspected the same), and Landlord makes no
\nrepresentation or warranty whatsoever as to whether any such space is suitable
\nfor the purposes for which Tenant is permitted to use the same. Tenant, in
\naddition to its Article 13 obligations in respect thereof, shall keep each of
\nTenant’s Fuel Tank Area, Tenant’s 20th Floor Electrical Power Areas, and, after
\nthe commencement of Tenant’s Penthouse Work, Tenant’s Penthouse Roof Area, in a
\nneat, clean and safe condition.<\/p>\n
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\n 184
\n 41.07. (a) Tenant, in consideration of the rights granted to it
\nunder Section 41.03 above (regardless of whether such rights are hereafter
\nexercised or waived or, except as expressly provided in Section 41.08 below,
\nterminated), shall pay to Landlord, as Additional Charges, the following amounts
\n(herein collectively called the “SECTION 41.03 CHARGES”): (i) a per annum amount
\nequal to $75,000.00 (the “SECTION 41.03 BASE CHARGE”); and (ii) an amount equal
\nto (x) $28,000.00 per annum, for the period from the Fixed Rent Commencement
\nDate to the day prior to the fifth anniversary of the Fixed Rent Commencement
\nDate, and (y) $35,000.00 per annum, for the period from the fifth anniversary of
\nthe Fixed Rent Commencement Date to the Initial Expiration Date (the “SECTION
\n41.03 FUEL TANK CHARGE”). Each of the Section 41.03 Charges shall be payable
\ncommencing on the Fixed Rent Commencement Date and thereafter in equal monthly
\ninstallments in advance on the first day of each and every calendar month during
\nthe term of this lease.<\/p>\n
(b) Tenant, in consideration of the rights granted to it
\nunder Section 41.04 above (regardless of whether such rights are hereafter
\nexercised or waived or, except as expressly provided in Section 41.08 below,
\nterminated), shall pay to Landlord, as an Additional Charge, an amount equal to
\n$25,000.00 per annum (herein called the “SECTION 41.04 CHARGE”), which Section
\n41.04 Charge shall be payable commencing on the Fixed Rent Commencement Date and
\nthereafter in equal monthly installments in advance on the first day of each and
\nevery calendar month during the term of this lease.<\/p>\n
(c) (1) Tenant, in consideration of the rights granted
\nto it under Section 41.05 above to install, operate, repair, replace and
\nmaintain Tenant’s UPS System (regardless of whether such rights are hereafter
\nexercised or waived or, except as expressly provided in Section 41.08 below,
\nterminated), shall pay to Landlord, as Additional Charges, a per annum amount
\nequal to $50,000.00 (the “SECTION 41.05 UPS CHARGE”), which Section 41.05 UPS
\nCharge shall be payable commencing on the Fixed Rent Commencement Date and
\nthereafter in equal monthly installments in advance on the first day of each and
\nevery calendar month during the term of this lease.<\/p>\n
(2) Tenant, in consideration of the rights granted
\nto it under Section 41.05 above to install, operate, repair, replace and
\nmaintain Tenant’s Electrical Distribution System (regardless of whether such
\nrights are hereafter exercised or waived or terminated), shall pay to Landlord,
\nas Additional Charges, a per annum amount equal to $14,000.00 (the “SECTION
\n41.05 EDS CHARGE”), which Section 41.05 EDS Charge shall be payable commencing
\non the Fixed Rent Commencement Date and thereafter in equal monthly installments
\nin advance on the first day of each and every calendar month during the term of
\nthis lease.<\/p>\n
(d) Notwithstanding the foregoing provisions of this
\nSection 41.07, during any Renewal Term hereunder, each of the Section 41.03 Base
\nCharge, the Section 41.03 Fuel Tank Charge, the Section 41.04 Charge, the
\nSection 41.05 UPS Charge and the Section 41.05 EDS Charge shall be changed
\n(i.e., increased or decreased) to be a per annum amount equal to the product of
\n(I) the amount of such charge, per annum, as set forth above in this Section
\n41.07, multiplied by (II) Section 41.07 Index (as hereinafter defined) for such
\nRenewal Term. As used herein, the “SECTION 41.07 INDEX”, for any Renewal Term,
\nshall mean a fraction, (X) the numerator of which is the average per annum per
\nrentable square foot rate of Fixed Rent payable under this lease as of the first
\nday of such Renewal Term (or, if the Fair Market Fixed Rent for such Renewal
\nTerm shall not have been finally determined as of such day, then as of the day
\nimmediately following such final determination) (determined, in either event,
\nwithout regard to any abatements, offsets or credits which might<\/p>\n
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\nthen be applicable), and (Y) the denominator of which is the average per annum
\nper rentable square foot rate of Fixed Rent payable under this lease as of the
\nFixed Rent Commencement Date (determined without regard to any abatements,
\noffsets or credits which might then be applicable). If, as of the commencement
\nof any Renewal Term, the Fair Market Fixed Rent therefor shall not have been
\nfinally determined (and accordingly the Section 41.07 Index for such Renewal
\nTerm can not then be finally determined), then the provisions of Section
\n38.04(e) hereof shall apply, mutatis mutandis, to the payments of each of the
\nSection 41.03 Base Charge, the Section 41.03 Fuel Tank Charge, the Section 41.04
\nCharge, the Section 41.05 UPS Charge and Section 41.05 EDS Charge.<\/p>\n
41.08. Notwithstanding anything to the contrary in this Article 41,
\nif, at anytime during the term of this lease, the Premises shall not include at
\nleast four (4) Full Premises Floors, then, from and after the date upon which
\nthe Premises shall first cease to include at least four (4) Full Premises Floors
\n(such date being herein called the “SECTION 41.08 DATE”), the following
\nprovisions shall apply:<\/p>\n
(a) Landlord shall have the right to terminate Tenant’s
\nrights under Section 41.03 hereof, which right may be exercised at anytime after
\nthe Section 41.08 Date by serving written notice thereof to Tenant (which notice
\nbeing herein called “LANDLORD’S SECTION 41.03 TERMINATION NOTICE”). If Landlord
\nserves Landlord’s Section 41.03 Termination Notice, then (i) effective
\nthereupon, Tenant shall no longer have any rights under Section 41.03 hereof,
\nand (ii) promptly thereafter, Tenant, subject to and in accordance with the
\nprovisions of Article 11 hereof, shall (x) remove from the Building all the
\nTenant Improvements installed pursuant to Section 41.03 (inclusive of Tenant’s
\nPenthouse, Tenant’s Penthouse Partition, Tenant’s Generator and Tenant’s Cooling
\nPlant), other than any portions of such Tenant’s Improvements which are
\nNon-Removable Exterior Improvements, and (y) restore the applicable areas of the
\nBuilding to their condition prior to the installation of such Tenant
\nImprovements, ordinary wear and tear excepted (such removal and restoration work
\nbeing herein collectively called “TENANT’S SECTION 41.03 TERMINATION WORK”). In
\nall events, Tenant shall complete Tenant’s Section 41.03 Termination Work on or
\nprior to the date that is ninety (90) days after that Landlord shall have served
\nLandlord’s Section 41.03 Termination Notice. Notwithstanding anything to the
\ncontrary contained in Section 41.07(a), Tenant’s obligation to pay the Section
\n41.03 Charges shall be end and be apportioned as of the date that Tenant
\ncompletes Tenant’s Section 41.03 Termination Work. In addition, as of such date,
\nthe provisions of Section 41.06(d) shall cease to apply to the Tenant’s
\nPenthouse Roof Area and Tenant’s Fuel Tank Area.<\/p>\n
(b) Landlord shall have the right to terminate Tenant’s
\nrights under Section 41.04 hereof, which right may be exercised at anytime after
\nthe Section 41.08 Date by serving written notice thereof to Tenant (which notice
\nbeing herein called “LANDLORD’S SECTION 41.04 TERMINATION NOTICE”). If Landlord
\nserves Landlord’s Section 41.04 Termination Notice, then (i) effective
\nthereupon, Tenant shall no longer have any rights under Section 41.04 hereof,
\nand (ii) promptly thereafter, Tenant, subject to and in accordance with the
\nprovisions of Article 11 hereof, shall (x) remove from the Building all the
\nTenant Improvements installed pursuant to Section 41.04 (inclusive of Tenant’s
\nTelecommunications Equipment), other than any portions thereof which are
\nNon-Removable Exterior Improvements, and (y) restore the applicable areas of the
\nBuilding to their condition prior to the installation of such Tenant
\nImprovements, ordinary wear and tear excepted (such removal and restoration work
\nbeing herein collectively called “TENANT’S SECTION 41.04 TERMINATION WORK”). In
\nall events, Tenant shall complete Tenant’s Section<\/p>\n
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\n41.04 Termination Work on or prior to the date that is ninety (90) days after
\nthat Landlord shall have served Landlord’s Section 41.04 Termination Notice.
\nNotwithstanding anything to the contrary contained in Section 41.07(b), Tenant’s
\nobligation to pay the Section 41.04 Charge shall end on, and be apportioned as
\nof, the date that Tenant completes Tenant’s Section 41.04 Termination Work.<\/p>\n
(c) Landlord shall have the right to terminate Tenant’s
\nrights under Section 41.05 hereof to install, operate, repair, replace and
\nmaintain Tenant’s UPS System, which right may be exercised at anytime after the
\nSection 41.08 Date by serving written notice thereof to Tenant (which notice
\nbeing herein called “LANDLORD’S UPS TERMINATION NOTICE”). If Landlord serves
\nLandlord’s UPS Termination Notice, then (i) effective thereupon, Tenant shall no
\nlonger have any rights under Section 41.05 hereof to install, operate, repair,
\nreplace and maintain Tenant’s UPS System, and (ii) promptly thereafter, Tenant,
\nsubject to and in accordance with the provisions of Article 11 hereof, shall (x)
\nremove from the Building the entirety of Tenant’s UPS System, other than any
\nportions thereof which are Non-Removable Exterior Improvements, and (y) restore
\nthe applicable areas of the Building to their condition prior to the
\ninstallation of Tenant’s UPS System, ordinary wear and tear excepted (such
\nremoval and restoration work being herein collectively called “TENANT’S UPS
\nTERMINATION WORK”). In all events, Tenant shall complete Tenant’s UPS
\nTermination Work on or prior to the date that is ninety (90) days after that
\nLandlord shall have served Landlord’s UPS Termination Notice. Notwithstanding
\nanything to the contrary contained in Section 41.07(c), Tenant’s obligation to
\npay the Section 41.05 UPS Charge shall end on, and be apportioned as of, the
\ndate that Tenant completes Tenant’s UPS Termination Work. In addition, as of
\nsuch date, the provisions of Section 41.06(d) shall cease to apply to the
\nTenant’s 20th Floor Electrical Power Areas (other than the Tenant’s 20th Floor
\nElectrical Power Area denoted on Exhibit X-5 attached hereto as “Area of
\nElectrical Distribution”, to which such provisions shall continue to apply).<\/p>\n
41.09. (a) For purposes of this lease, the following terms shall
\nhave the following meanings:<\/p>\n
The “FIRE TOWER” shall mean the fire tower of the Building
\n located in the area shown hatched on Exhibit X- 10 hereto.<\/p>\n
The “FIRE TOWER WORK” shall mean the work needed to
\n convert the Fire Tower into an enclosed electrical and mechanical shaft,
\n including without limitation the installation of structural supports,
\n access doors, catwalks and platforms (such catwalks and platforms being
\n herein called the “FIRE TOWER PLATFORMS”) and appurtenances and conforming
\n to all laws and requirements of public authorities (it being further
\n agreed that the Fire Tower Work shall include, without limitation, any
\n removal or other treatment of asbestos required by any laws or
\n requirements of public authorities in connection therewith or as a result
\n thereof).<\/p>\n
The “DESIGNATED HOT DECKS” shall mean those two (2)
\n certain existing “hot decks” located in the Building, and running from the
\n 20th floor of the Building to the roof of the Building, which are located
\n in areas delineated on Exhibit X-11 hereto.<\/p>\n
The “HOT DECK WORK” shall mean the work needed to convert
\n the Designated Hot Decks into electrical and mechanical shafts conforming
\n to all laws and requirements of public authorities (it being further
\n agreed that the Hot Deck Work shall include, without limitation, (x) any
\n removal<\/p>\n
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\n 187
\n or other treatment of asbestos required by any laws or requirements of
\n public authorities in connection therewith or as a result thereof, and (y)
\n the removal of any existing enclosures, conduits and other material
\n currently existing in the Designated Hot Decks).<\/p>\n
The “LOWER ALTERNATE ENCLOSURE LOCATION” shall mean a
\n location, on each floor of the Building from the subcellar level of the
\n Building to the 20th Floor of the Building, as shall be reasonably
\n determined by Landlord, it being agreed that such location (I) shall be
\n somewhere within the Building’s freight elevator lobby, which freight
\n elevator lobby is shown hatched on Exhibit X-12 hereto, and (II) shall
\n have a contiguous cross-sectional area which shall be not less than the
\n Aggregate Required Cross-Sectional Area (as to any floor of the Building
\n between the subcellar level of the Building and the 20th floor of the
\n Building).<\/p>\n
The “AGGREGATE REQUIRED CROSS-SECTIONAL AREA” shall mean a
\n cross-sectional area of (i) 8 square feet, as to all floors of the
\n Building between the subcellar of the Building and the 20th floor of the
\n Building, (ii) 25 square feet, as to all floors of the Building between
\n the 20th floor of the Building and the 41st floor of the Building, and
\n (iii) 28 square feet, as to all floors of the Building between the 41st
\n floor of the Building and the roof of the Building.<\/p>\n
“TENANT’S SECTION 41.09 ENCLOSURES”, as used in this
\n lease, shall mean either (i) Tenant’s Fire Tower Enclosures (in any case
\n that Tenant shall have performed the Fire Tower Work and installed any
\n Tenant’s Fire Tower Enclosures), or (ii) any of the Designated Hot Decks
\n in which the Hot Deck Work has been performed, between the 20th floor of
\n the Building and the roof, and the Tenant’s Lower Alternate Enclosure,
\n between the subcellar level of the Building to the 20th Floor of the
\n Building (in any case that Tenant shall have performed the Hot Deck Work
\n in any of the Designated Hot Decks and installed Tenant’s Lower Alternate
\n Enclosure).<\/p>\n
(b) (1) Tenant, with Landlord’s consent, has heretofore
\nfiled an application with the Department of Building for a permit to perform the
\nFire Tower Work and thus convert the Fire Tower into a mechanical and electrical
\nshaft (the “CONVERSION APPLICATION”). If the Conversion Application is granted,
\nthen Tenant, subject to and in accordance with the provisions of Article 11,
\nshall have the right to perform the Fire Tower Work (the same, for purposes of
\nArticle 11 being deemed Pre-Authorized Alterations); provided, however, that if
\nTenant, in accordance with the provisions of Section 41.09(c) below, shall serve
\nthe Alternate Route Election Notice (as hereinafter defined), then Tenant shall
\nno longer have the right to perform the Fire Tower Work.<\/p>\n
(2) If Tenant performs the Fire Tower Work, then
\nTenant, subject to and in accordance with the provisions of Article 11 hereof,
\nhave the right, from time to time, to install one or more enclosures within the
\nFire Tower to house all the Tenant’s Improvements to be installed in such
\nenclosures pursuant to Section 16.11 hereof and this Article 41, it being
\nunderstood and agreed that (i) such enclosures, in the aggregate, shall not
\noccupy an area greater than the Aggregate Required Cross-Sectional Area (as to
\nany floor of the Building), and (ii) each such enclosure shall be constructed
\nwithin the Fire Tower so as to be in compliance with all laws and requirements
\nof public authorities, and so as not to cause any surrounding area to not be in
\nsuch compliance with all laws and requirements of public authorities (the
\nenclosure or enclosures installed<\/p>\n
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\n 188
\npursuant to this Section 41.09(b)(2) are herein collectively called “TENANT’S
\nFIRE TOWER ENCLOSURES”); and<\/p>\n
(3) If Tenant performs the Fire Tower Work and
\ninstalls Tenant’s Fire Tower Enclosures, then the following provisions shall
\napply: (i) Landlord may, and may authorize other tenants or occupants of the
\nBuilding to, install, repair and replace other risers in the Fire Tower (any
\nsuch authorized tenant or occupant being herein called a “FIRE TOWER OCCUPANT”),
\nprovided, that, at all times during the term, there shall be available in the
\nFire Tower for Tenant’s Fire Tower Enclosures a contiguous cross-sectional area
\nwhich shall be not less than the Aggregate Required Cross-Sectional Area (as to
\nany floor of the Building); (ii) Landlord shall not grant any tenant or occupant
\nof the Building, other than the Fire Tower Occupants, entry onto any Fire Tower
\nPlatform, and shall not grant any tenant or occupant of the Building entry into
\nany Tenant’s Fire Tower Enclosure (it being understood that (x) only Landlord
\nand Tenant shall have a key to any door providing entry onto any Fire Tower
\nPlatform and into any Tenant’s Fire Tower Enclosure); (iii) except in
\nemergencies, Landlord, prior to entering onto any Fire Tower Platform or into
\nany of Tenant’s Fire Tower Enclosures, shall give Tenant notice thereof (which
\nnotice, at Landlord’s option, may be oral notice to Tenant’s operations desk
\n(which shall be manned 24 hours a day) given immediately prior to such entry),
\nand, in any such case, Tenant, at Tenant’s expense, shall have the right to have
\nTenant’s representative accompany Landlord throughout the period of Landlord’s
\nentry; and (iv) except in emergencies, Landlord, prior to permitting any Fire
\nTower Occupant to enter onto any Fire Tower Platform, shall give Tenant notice
\nthereof (which notice, at Landlord’s option, may be oral notice to Tenant’s
\noperations desk (which shall be manned 24 hours a day) given immediately prior
\nto such entry), and, in any such case, Tenant, at Tenant’s expense, shall have
\nthe right to have Tenant’s representative accompany such Fire Tower Occupant
\nthroughout the period of such Fire Tower Occupant’s entry. Tenant shall have
\naccess to the Fire Tower solely for purposes of performing (A) the Fire Tower
\nWork and subsequent permitted Alterations within the Fire Tower (which access
\nshall be subject to the provisions of Article 11 hereof, including without
\nlimitation the provisions of Section 11.03(c) hereof), or (B) maintenance,
\nrepairs and replacements to the Fire Tower (but this clause shall not be deemed
\nto require Tenant to maintain the Fire Tower) and any Tenant Improvements within
\nthe Fire Tower (which access shall be subject to the provisions of Article 13
\nhereof, including without limitation the provisions of Section 13.01(c)(1)
\nhereof).<\/p>\n
(c) (1) If (A) the Conversion Application is denied (it
\nbeing agreed that Tenant shall promptly notify Landlord in the event that the
\nConversion Application is denied) or (B) Tenant, by written notice given to
\nLandlord at anytime prior to Tenant commencing the Fire Tower Work (which notice
\nis herein called the “ALTERNATE ROUTE ELECTION NOTICE”), elects not to perform
\nthe Fire Tower Work because (i) Tenant reasonably believes that the Conversion
\nApplication will not be granted prior to the time at which Tenant intends to
\ncommence the Fire Tower Work, or (ii) Tenant, for any reason, is not legally
\nauthorized to perform the Fire Tower Work, or (iii) Tenant reasonably believes
\nthat (x) the cost of the Fire Tower Work plus the cost of installing all
\nTenant’s Improvements to be located in the Fire Tower, will exceed (y) one
\nhundred and fifty (150%) percent of (I) the cost of the Hot Deck Work plus (II)
\nthe cost of installing Tenant’s Lower Alternate Enclosure (as hereinafter
\ndefined), plus (III) the cost of installing all Tenant’s Improvements to be
\nlocated in either the Designated Hot Decks or Tenant’s Lower Alternate
\nEnclosure, then, in either such event, Tenant, subject to and in accordance the
\nprovisions of Article 11 hereof, Tenant shall have right to perform the Hot Deck
\nWork (the same being deemed Pre-Authorized Alterations). In addition,<\/p>\n
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\n 189
\nLandlord, within fifteen (15) Business Days after its receipt of either a notice
\nfrom Tenant indicating that the Conversion Application has been denied or the
\nAlternate Route Election Notice, shall designated the Lower Alternate Enclosure
\nLocation in accordance with the definition thereof set forth in Section 41.09(a)
\nhereof.<\/p>\n
(2) If Tenant performs the Hot Deck Work, then
\nTenant, subject to and in accordance with the provisions of Article 11 hereof,
\nhave the right, from time to time, to install one or more enclosures within the
\nLower Alternate Enclosure Location (from the subcellar level of the Building to
\nthe 20th floor of the Building) to house all the Tenant’s Improvements to be
\ninstalled in such enclosures pursuant to Section 16.11 hereof and this Article
\n41, it being understood and agreed that (i) such enclosures, in the aggregate,
\nshall not occupy an cross-sectional area which is greater than the Aggregate
\nRequired Cross-Sectional Area (as to any floor of the Building), and (ii) each
\nsuch enclosure shall be constructed entirely within the Lower Alternate
\nEnclosure Location so as to be in compliance with all laws and requirements of
\npublic authorities, and so as not to cause any surrounding area to not be in
\nsuch compliance with all laws and requirements of public authorities (the
\nenclosure or enclosures installed pursuant to this Section 41.09(c)(2) are
\nherein collectively called “TENANT’S LOWER ALTERNATE ENCLOSURE”).<\/p>\n
(3) If Tenant performs the Hot Deck Work and
\ninstalls Tenant’s Lower Alternate Enclosure, then the following provisions shall
\napply: (i) Landlord shall not grant any other tenant or occupant of the Building
\nentry into either Designated Hot Deck or Tenant’s Lower Alternate Enclosure (it
\nbeing understood that only Landlord and Tenant shall have a key to each door
\nproviding entry into (x) each Designated Hot Deck and (y) Tenant’s Lower
\nAlternate Enclosure); and (ii) except in emergencies, Landlord, prior to
\nentering any Designated Hot Deck or Tenant’s Lower Alternate Enclosure, shall
\ngive Tenant notice thereof (which notice, at Landlord’s option, may be oral
\nnotice to Tenant’s operations desk (which shall be manned 24 hours a day) given
\nimmediately prior to such entry), and, in any such case, Tenant, at Tenant’s
\nexpense, shall have the right to have Tenant’s representative accompany Landlord
\nthroughout the period of Landlord’s entry. Tenant shall have access to the
\nDesignated Hot Decks and the Lower Alternate Enclosure Location solely for
\npurposes of performing (A) the Hot Deck Work, the work needed to install
\nTenant’s Lower Alternate Enclosure and subsequent permitted Alterations within
\nthe Designated Hot Decks or Tenant’s Lower Alternate Enclosure (which access
\nshall be subject to the provisions of Article 11 hereof, including without
\nlimitation the provisions of Section 11.03(c) hereof), or (B) maintenance,
\nrepairs and replacements to the Designated Hot Decks (but this clause shall not
\nbe deemed to require Tenant to maintain the Designated Hot Decks), Tenant’s
\nLower Alternate Enclosure and any Tenant Improvements within any Designated Hot
\nDecks and Tenant’s Lower Alternate Enclosure (which access shall be subject to
\nthe provisions of Article 13 hereof, including without limitation the provisions
\nof Section 13.01(c)(1) hereof).<\/p>\n
(d) Notwithstanding anything to the contrary contained
\nherein, any fuel pipe installed by Tenant pursuant to this Article 41 shall,
\nwhen running vertically, be enclosed within masonry.<\/p>\n
41.10. In each instance in which Tenant is authorized by or pursuant
\nto this lease to install any conduit, such authorization shall include the
\nright, from time to time, subject to and in accordance with the provisions of
\nArticle 11 hereof, to run in such conduit, and remove from such conduit, wires
\nand cables for which the same is suited. For purposes of Article 11 hereof, the
\nrunning of such wires and cables (as opposed to the installation of the
\nconduits) shall be deemed Minor Alterations,<\/p>\n
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\n 190
\nnotwithstanding the fact that such wires or cables will be located, in part,
\noutside of the Premises.<\/p>\n
41.11. In each instance in which Tenant is authorized by or pursuant
\nto this lease to install any Tenant’s Improvements, such authorization shall
\ninclude the right to keep such Tenant’s Improvements, as installed, throughout
\nthe term of this lease, except as otherwise provided in this lease (including
\nwithout limitation as otherwise provided in any Exhibit attached to this lease).<\/p>\n
41.12. Tenant, prior to installing Tenant’s Fuel Tank in Tenant’s
\nFuel Tank Area, shall, subject to the other provisions of this lease, have the
\nright to utilize Tenant’s Fuel Tank Area for dry storage.<\/p>\n
41.13. Landlord, at Tenant’s expense, shall perform the pipe
\nrelocation work on the 50th floor of the Building which is described on the
\nspecifications therefor set forth on Exhibit X-13 attached hereof (such work
\nbeing herein called the “50TH FLOOR PIPE RELOCATION WORK”). Landlord, subject to
\none or more Events of Force Majeure and\/or delays occasioned by Tenant, shall
\ncomplete the 50th Floor Pipe Relocation Work on or prior to June 30, 1994.
\nTenant, from time to time within thirty (30) days after a written demand
\ntherefor, shall pay to, or reimburse, Landlord all the reasonable out-of-pocket
\ncosts incurred by Landlord in connection with the performance of the 50th Floor
\nPipe Relocation Work.<\/p>\n
ARTICLE 42<\/p>\n
47th Floor Space<\/p>\n
42.01. Effective as of the 47th Floor Commencement Date (as
\nhereinafter defined), the portions of the forty-seventh (47th) floor of the
\nBuilding shown hatched on the floor plan attached hereto as Exhibit Y (such
\nspace being herein called the “47TH FLOOR SPACE”) shall become, and be deemed to
\ncomprise, part of the Premises upon all the then executory terms hereof
\n(including without limitation the Expiration Date).<\/p>\n
42.02. In respect of the addition of the 47th Floor Space to the
\nPremises, the following terms and conditions shall apply (notwithstanding any
\nother provision of this lease to the contrary):<\/p>\n
(a) Effective as of the 47th Floor Commencement Date, the
\n Fixed Rent shall be increased by, and shall thereby include, the 47th
\n Floor Fixed Rent (as hereinafter defined). The “47TH FLOOR FIXED RENT”
\n shall mean the following per annum rents for the following periods during
\n the term: (i) for the period commencing on the 47th Floor Commencement
\n Date and ending on the day preceding the fifth (5th) anniversary of the
\n Fixed Rent Commencement Date, $1,028,232.50 (i.e., $23.75 per rentable
\n square foot multiplied by 43,294 rentable square feet); and (ii) for the
\n period commencing on the fifth (5th) anniversary of the Fixed Rent
\n Commencement Date and ending on the Initial Expiration Date, $1,158,114.50
\n (i.e., $26.75 per rentable square foot multiplied by 43,294 rentable
\n square feet). Accordingly, as of the 47th Floor Commencement Date, the
\n Fixed Rent (inclusive the Fixed Rent set forth on Schedule A and the 47th
\n Floor Fixed Rent) shall be $8,946,806.00, for the period until the day
\n preceding the 5th anniversary of the Fixed Rent Commencement Date, and
\n $10,221,542.00. After the 47th Floor Commencement Date, the provisions of
\n Section 1.11 hereof shall apply to the aggregate Fixed Rent figures set
\n forth in the preceding sentence.<\/p>\n
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\n 191
\n (b) Effective as of the 47th Floor Commencement Date,
\n Tenant’s Operating Share and Tenant’s Tax Share, respectively, shall be
\n appropriately increased by operation of the provisions of Sections 3.01(p)
\n and 3.01(q), respectively, based upon the deemed rentable area of the 47th
\n Floor Space (as such is set forth on Exhibit D attached hereto).
\n Accordingly, as of the 47th Floor Commencement Date, Tenant’s Operating
\n Share shall be 18.2074%, and Tenant’s Tax Share shall be 17.8109%.<\/p>\n
(c) Effective as of the 47th Floor Commencement Date,
\n Article 14 hereof shall apply to the 47th Floor Space, except that Tenant,
\n at Tenant’s expense, shall install the “Tenant’s Submeters” for the 47th
\n Floor Space to measure Tenant’s demand (i.e., co-incident demand measured
\n with the remainder of the Premises) and consumption of electricity in the
\n 47th Floor Space; it being understood that, with the addition of the 47th
\n Floor Space to the Premises, the “Committed Base Electrical Service Level”
\n shall be increased by operation of the provisions of Section 14.01(a)
\n hereof.<\/p>\n
(d) Effective as of the 47th Floor Commencement Date,
\n Article 15 hereof shall apply to the 47th Floor Space, except that the
\n provisions of Section 15.01(a) and the other provisions of Article 15
\n dealing with the Business Occupancy Date shall apply separately to the
\n 47th Floor Space (and thus reflect a separate “Business Occupancy Date”
\n for the 47th Floor Space, which shall be the date for the commencement of
\n certain services to the 47th Floor Space as more particularly provided in
\n Article 15).<\/p>\n
(e) In no event shall any of the following provisions of
\n this lease apply to the 47th Floor Space: (i) Article 4 hereof (it being
\n understood that the provisions of Section 42.03 below shall apply in lieu
\n thereof), or (ii) any provisions providing for a free rent period or
\n period of rent abatement in respect of Fixed Rent (it being understood
\n that the provisions of Section 42.04, if applicable, shall apply in lieu
\n thereof).<\/p>\n
42.03. (a) The “47TH FLOOR COMMENCEMENT DATE” shall be the day
\nafter the day that PSI shall have actually vacated the 47th Floor Space.<\/p>\n
(b) Landlord and Tenant, in respect of the foregoing,
\nhereby acknowledge the following: (i) PSI is currently leasing, and in occupancy
\nof, the 47th Floor Space pursuant to PSI’s lease in the Building; and (ii)
\nLandlord and PSI, as of the date hereof, have entered into an amendment to PSI’s
\nlease, which amendment, inter alia, (1) provides for the addition of space to
\nthe premises demised by PSI’s lease effective as of the date of such amendment,
\n(2) provides that PSI will use commercially reasonable efforts to vacate the
\n47th Floor Space on or about September 6, 1994, (3) provides that PSI’s lease
\nshall automatically terminate with respect to the 47th Floor Space on the date
\nthat PSI actually vacates the 47th Floor Space, and (4) provides that PSI shall
\nnot have any liability to Landlord in the event it does not vacate the 47th
\nFloor Space by September 6, 1994 or by any other date.<\/p>\n
(c) Notwithstanding anything to the contrary that may be
\ncontained in or implied by any other provision of this lease or the
\naforementioned lease amendment, Tenant acknowledges and agrees as follows: (i)
\nLandlord shall have no obligation to Tenant to enforce (by way of litigation or
\notherwise) any rights that Landlord may have against PSI, under the
\naforementioned lease amendment or otherwise, on account of PSI’s failure to
\nvacate the 47th Floor Space by August 1, 1994 or by any other date or PSI’s
\nfailure to exercise reasonable efforts<\/p>\n
-187-
\n 192
\nto do so or any other act or omission of PSI with respect to the 47th Floor
\nSpace or the vacation thereof, and Landlord shall have no liability to Tenant by
\nreason of Landlord not enforcing any such rights; and (ii) Landlord shall be
\nconclusively deemed to have delivered the 47th Floor Space to Tenant on the day
\nafter PSI shall have vacated the same without further act of the parties (it
\nbeing the intention of the parties that the 47th Floor Commencement Date shall
\noccur automatically on the day after PSI shall have vacated the 47th Floor
\nSpace, whenever that may be).<\/p>\n
(d) Tenant shall accept the 47th Floor Space in its “as
\nis” condition as of the 47th Floor Commencement Date. Section 2.02 hereof,
\nincluding Section 2.02(c) hereof, shall apply to the 47th Floor Space.<\/p>\n
(e) Tenant hereby waives any right to rescind this lease
\nor any part hereof under the provisions of Section 223-a of the Real Property
\nLaw of the State of New York, and agrees that the provisions of this Article are
\nintended to constitute “an express provision to the contrary” within the meaning
\nof said Section 223-a.<\/p>\n
42.04. Notwithstanding the provisions of Section 42.02(a), if the
\n47th Floor Commencement Date shall occur prior to the Fixed Rent Commencement
\nDate, then the 47th Floor Space Fixed Rent shall abate for the period commencing
\non the 47th Floor Commencement Date and ending on the day prior to the Fixed
\nRent Commencement Date, both days inclusive (such period, if applicable, being
\nherein called the “47TH FLOOR ABATEMENT PERIOD”).<\/p>\n
-188-
\n 193
\n 42.05. Landlord and Tenant shall, upon the request of the other
\nparty, execute, acknowledge and deliver to the other party an instrument or
\ninstruments in form reasonably satisfactory to both parties confirming the
\naddition of the 47th Floor Space to the Premises, the 47th Floor Commencement
\nDate, any increase in Fixed Rent, Tenant’s Operating Share and Tenant’s Tax
\nShare pursuant to the provisions of this Article 42, and any other terms or
\nconditions in respect of the 47th Floor Space, but any failure of the parties to
\nexecute, acknowledge and deliver such instrument(s) shall not affect the
\nvalidity of the leasing of the 47th Floor Space or any of the provisions of this
\nArticle 42.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
\nthis lease as of the day and year first above written.<\/p>\n
LANDLORD:<\/p>\n
THE CHASE MANHATTAN BANK
\n (NATIONAL ASSOCIATION)<\/p>\n
By: \/S\/Victor Castellano
\n ———————————-
\n Name: Victor Castellano
\n Title: Vice President<\/p>\n
Landlord’s Federal Tax I.D.
\n No.:<\/p>\n
13-2633612
\n ———————————-<\/p>\n
TENANT:<\/p>\n
THE GOLDMAN SACHS GROUP, L.P.<\/p>\n
By: \/S\/David A. George
\n ———————————-
\n Name: David A. George
\n Title: Partner<\/p>\n
Tenant’s Federal Tax I.D.
\n No.:<\/p>\n
13-3501777
\n ———————————-<\/p>\n
-189-
\n 194
\n LANDLORD<\/p>\n
STATE OF NEW YORK )
\n ) ss.:
\nCOUNTY OF NEW YORK )<\/p>\n
On the 5th day of April, 1994, before me personally came Victor
\nCastellano , to me known, who, being duly sworn by me, did depose and say that
\nhe resides at ___________ 84 Hillary, Westbury, New York ; that he is a Vice
\nPresident of The Chase Manhattan Bank, N.A., the national banking association
\ndescribed in and which executed the foregoing instrument; and that he signed his
\nname thereto by order of the Board of Directors of said association.<\/p>\n
\/S\/ Doreen Gismondi
\n ———————————-
\n Notary Public<\/p>\n
TENANT<\/p>\n
STATE OF NEW YORK )
\n : ss.:
\nCOUNTY OF NEW YORK )<\/p>\n
On the 5th day of April, 1994, before me personally came David A.
\nGeorge , to me known, who, being duly sworn by me, did depose and say that he
\nresides at ___________ 85 Broad Street, New York, New York ; that he is a
\ngeneral partner of THE GOLDMAN SACHS GROUP, L.P., the partnership described in
\nand which executed the foregoing instrument; that his execution of the
\ninstrument was duly authorized according to the Articles of Partnership; that he
\nexecuted the instrument on behalf of, and as the act and deed of, said
\npartnership pursuant to said authorization.<\/p>\n
\/S\/ Lynne Hoffman
\n ———————————-
\n Notary Public<\/p>\n
-190-
\n 195
\n SCHEDULE A
\n 196
\n SCHEDULE A<\/p>\n
Fixed Rent<\/p>\n
The Fixed Rent, for the Initially Demised Premises, shall be as
\nfollows:<\/p>\n
(a) SEVEN MILLION NINE HUNDRED EIGHTEEN THOUSAND FIVE HUNDRED SEVENTY
\nTHREE and 50\/100 ($7,918,573.50) Dollars per annum (i.e., $20.75 per rentable
\nsquare foot per annum, multiplied by 381,618 rentable square feet), for the
\nperiod from the Commencement Date to and including the day preceding the fifth
\n(5th) anniversary of the Fixed Rent Commencement Date.<\/p>\n
(b) NINE MILLION SIXTY THREE THOUSAND FOUR HUNDRED TWENTY SEVEN and
\n50\/100 ($9,063,427.50) Dollars per annum (i.e., $23.75 per rentable square foot
\nper annum, multiplied by 381,618 rentable square feet), for the period from the
\nfifth (5th) anniversary of the Fixed Rent Commencement Date to and including the
\nInitial Expiration Date.<\/p>\n
197
\n THIRD AMENDMENT TO LEASE<\/p>\n
THIRD AMENDMENT TO LEASE (this “Amendment”) made as of October 31,
\n1997, between THE CHASE MANHATTAN BANK, successor by merger to The Chase
\nManhattan Bank, N.A., having an office at 633 Third Avenue, New York, New York
\n10017, Attention: Vice President (herein called “Landlord”) and THE GOLDMAN
\nSACHS GROUP, L.P., a Delaware limited partnership, having its principal business
\naddress at 85 Broad Street, New York, New York 10004, Attention: General
\nServices Department (herein called “Tenant”).<\/p>\n
W I T N E S S E T H :<\/p>\n
WHEREAS, Landlord and Tenant have heretofore entered into a certain
\nlease dated as of April 5, 1994 (herein called the “Original Lease”), which
\nOriginal Lease demised certain office premises (herein collectively called the
\n“Original Lease Office Premises”) located in the building known as One New York
\nPlaza in the City, County and State of New York (herein called the “Building”);<\/p>\n
WHEREAS, Landlord and Tenant have heretofore entered into a certain
\nFirst Amendment to Lease dated as of March 1, 1995 (herein called the “First
\nAmendment”), which First Amendment amended the Original Lease to, inter alia,
\ndemise (i) certain storage space located on the subcellar level of the Building
\n(herein called the “Storage Space”), and (ii) certain other space located on the
\nretail concourse level of the Building (herein called the “Retail Concourse
\nSpace”);<\/p>\n
WHEREAS, Landlord and Tenant have heretofore entered into a certain
\nSecond Amendment to Lease dated as of June 17, 1997 (herein called the “Second
\nAmendment”), which Second Amendment amended the Original Lease, as theretofore
\namended, to, inter alia, demise certain additional office space located on the
\ntwenty-first (21st) floor of the Building (herein called the “21st Floor Space”)
\n(the Original Lease, as amended by the First Amendment and Second Amendment,
\nbeing herein called the “Existing Lease”) (the Original Lease Office Premises,
\nthe Storage Space, the Retail Concourse Space and the 21st Floor Space are
\nherein collectively called “Existing Premises”);<\/p>\n
WHEREAS, (A) Landlord is currently a party to a certain Lease, dated
\nas of November 4, 1992, between Landlord, as landlord, and Shearson Lehman
\nBrothers Inc. (which entity has since changed its name to Lehman Brothers Inc.)
\n(“Lehman”), as tenant (which lease, as heretofore amended and modified, being
\nherein called the “Lehman Lease”), which Lehman Lease demises the 40th Floor
\nSpace (as defined below) to Lehman for a term which is currently set to expire
\non April 7, 1998, and (B) Tenant, as of the date hereof, (i) has, pursuant to a
\ncertain Assignment of Sublease, dated as of the date hereof, between Continental
\nBroker-Dealer Corp. (“Continental”), as assignor, and Tenant, as
\n 198<\/p>\n
assignee (and a certain Consent and Agreement, executed incident thereto and
\ndated as of the date hereof, among Landlord, Lehman, Continental and Tenant),
\nbecome the subtenant under a certain Sublease, dated as of August 31, 1995,
\nbetween Lehman, as sublandlord, and Americorp Financial Services Inc.
\n(“Americorp”), as subtenant (such sublease being herein called the
\n“Lehman-Tenant Sublease”), (x) which Lehman-Tenant Sublease was previously
\nassigned to Continental by Americorp pursuant to a sublease assignment and
\nassumption agreement dated February 3, 1997, and (y) which Lehman-Tenant
\nSublease demises the 40th Floor Space to Tenant for a term which is currently
\nset to expire on April 6, 1998, and (ii) has, pursuant to the Lehman-Tenant
\nSublease, taken possession of the 40th Floor Space;<\/p>\n
WHEREAS, Landlord and Tenant, pursuant to this Amendment, desire to
\namend the Existing Lease as hereinafter provided (the Existing Lease as the same
\nas hereby amended being herein called the “Lease”), to, inter alia, demise the
\n40th Floor Space upon the terms and conditions hereinafter set forth;<\/p>\n
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
\ncontained, the parties hereto agree as follows:<\/p>\n
1. Defined Terms.<\/p>\n
All capitalized terms used herein, and not otherwise defined herein,
\nshall have the meanings ascribed thereto in the Existing Lease.<\/p>\n
2. Addition of 40th Floor Space.<\/p>\n
(a) Effective as of April 8, 1998 (the “40th floor Commencement
\nDate”), the portion of the fortieth (40th) floor of the Building that is shown
\nhatched on the floor plan attached hereto as Exhibit A (such space being herein
\ncalled the “40th floor Space”) shall be automatically (without further act of
\nthe parties) demised to Tenant under the Lease upon the terms and conditions set
\nforth in Section 2(b) below, and, upon such terms and conditions, shall be added
\nto, and be deemed to comprise part of, the Premises. The parties agree that, for
\npurposes of the Lease, the rentable area of the 40th Floor Space shall be
\nconclusively deemed to be 42,125 rentable square feet; but in no event shall
\nsuch deemed rentable area constitute or imply any representation or warranty by
\nLandlord whatsoever as to the actual size of the 40th Floor Space or the
\nBuilding or any part thereof.<\/p>\n
(b) The 40th Floor Space shall be added to the Premises upon all the
\nexecutory terms and conditions of the Lease (including without limitation the
\nExpiration Date), as of the 40th Floor Commencement Date, subject to and in
\naccordance with the following terms and conditions as well as the other
\nprovisions of this Amendment:<\/p>\n
(1) The 40th Floor Space shall be added to the Premises as
\npart of the Office Premises (and, as such, shall be used solely for the Primary
\nUse and Secondary<\/p>\n
-2-
\n 199<\/p>\n
Uses), and, thus, those provisions of the Lease which expressly apply solely to
\neither or both of the Storage Space or the Retail Concourse Space shall not
\napply to the 40th Floor Space.<\/p>\n
(2) The Fixed Rent, effective as of the 40th Floor Rent
\nCommencement Date, shall be increased by, and shall thus include, the 40th Floor
\nFixed Rent. As used herein, the “40th Floor Fixed Rent” shall mean the Fixed
\nRent payable for the 40th Floor Space, which shall be at the following rates for
\nthe following periods: (i) for period from the 40th Floor Rent Commencement Date
\nto and including April 30, 2003, the rate of ONE MILLION ELEVEN THOUSAND and
\n00\/100 ($1,011,000.00) DOLLARS per annum (payable in equal monthly installments
\nof $84,250.00); and (ii) for the period from May 1, 2003 to and including the
\nInitial Expiration Date, the rate of ONE MILLION TWO HUNDRED THOUSAND FIVE
\nHUNDRED SIXTY-TWO and 50\/100 ($1,200,562.50) DOLLARS per annum (payable in equal
\nmonthly installments of $100,046.88). The “40th floor Rent Commencement Date”
\nshall mean the date which is one hundred fifty (150) days after the 40th Floor
\nCommencement Date.<\/p>\n
(3) For purposes of applying Article 3 of the Original Lease
\nto the 40th Floor Space, the following provisions shall apply:<\/p>\n
(A) Notwithstanding anything to the contrary contained
\nin Sections 3.01(p) and (q) of the Original Lease, neither Tenant’s Operating
\nShare nor Tenant’s Tax Share shall be increased by the addition of the 40th
\nFloor Space to the Premises.<\/p>\n
(B) The Tax Payment for the Tax Year in which the 40th
\nFloor Rent Commencement Date occurs, and for each Tax Year thereafter, shall (in
\naddition to the Base Component, the Generator Component and the 21st Floor
\nComponent thereof) include an additional fourth component, in respect of the
\n40th Floor Space, which shall be equal to Tenant’s 40th Floor Tax Share (as
\nhereinafter defined) of the excess of (i) the Adjusted Real Property Taxes for
\nsuch Tax Year, over (ii) the 40th Floor Base Tax Amount (as hereinafter defined)
\n(such additional component, of any such Tax Payment, being herein called the
\n“40th floor Component” of such Tax Payment); provided, however, that (x) in
\nrespect of the Tax Year in which the 40th Floor Rent Commencement Date occurs,
\nthe 40th Floor Component of the Tax Payment shall be prorated (on a per diem
\nbasis) to correspond to that portion of the Tax Year occurring on or after the
\n40th Floor Rent Commencement Date, and (y) in respect of the Tax Year in which
\nthe Expiration Date occurs, the 40th Floor Component of the Tax Payment shall be
\nprorated (on a per diem basis) to correspond to that portion of such Tax Year
\noccurring on or prior to the Expiration Date. As used herein, (I) “Tenant’s 40th
\nfloor Tax Share” shall mean 1.737%, and (II) the “40th floor Base Tax Amount”
\nshall mean the Adjusted Real Property Taxes for the Tax Year commencing July 1,
\n1998 and ending June 30, 1999.<\/p>\n
(C) The Operating Payment for the Operating Year in
\nwhich the 40th Floor Rent Commencement Date occurs, and for each Operating Year
\nthereafter,<\/p>\n
-3-
\n 200<\/p>\n
shall (in addition to the amounts described in Section 3.03(a) of the Original
\nLease and Section 2(b)(3)(C) of the Second Amendment) include (and be increased
\nby) an additional amount, in respect of the 40th Floor Space, which shall be
\nequal to Tenant’s 40th Floor Operating Share (as hereinafter defined) of the
\nexcess of (i) Operating Expenses for such Operating Year, over (ii) the 40th
\nFloor Base Operating Amount (as hereinafter defined) (such additional amount,
\nfor any such Operating Year, being sometimes herein separately referred to as
\n“40th Floor Operating Payment”); provided, however, that (x) in respect of the
\nOperating Year in which the 40th Floor Rent Commencement Date occurs, the 40th
\nFloor Operating Payment shall be prorated (on a per diem basis) to correspond to
\nthat portion of the Operating Year occurring on or after the 40th Floor Rent
\nCommencement Date, and (y) in respect of the Operating Year in which the
\nExpiration Date occurs, the 40th Floor Operating Payment shall be prorated (on a
\nper diem basis) to correspond to that portion of such Operating Year occurring
\non or prior to the Expiration Date. As used herein, (I) “Tenant’s 40th Floor
\nOperating Share” shall mean 1.791%, and (II) the “40th Floor Base Operating
\nAmount” shall mean an amount equal to Operating Expenses for the Operating Year
\ncommencing January 1, 1998 and ending December 31, 1998.<\/p>\n
(4) The provisions of Article 4 of the Original Lease shall
\nnot apply to the 40th Floor Space or any part thereof.<\/p>\n
(c) Tenant hereby acknowledges and agrees that Landlord shall have
\nno obligation whatsoever to deliver possession of the 40th Floor Space to Tenant
\nupon the 40th Floor Commencement Date (but rather, upon such date, the 40th
\nFloor Space shall be automatically added to the Premises as hereinabove
\nprovided); it being further agreed, in that regard, that, upon the 40th Floor
\nCommencement Date, Tenant shall be automatically and irrevocably be deemed to
\nhave accepted the 40th Floor Space in its “AS IS” condition as of the 40th Floor
\nCommencement Date (it being understood that the provisions of this sentence
\nshall not release Landlord from its obligations with respect to the 40th Floor
\nSpace under any other provisions of the Lease). Furthermore, it is agreed that
\nthere shall be no interruption in Tenant’s occupancy between the end of the term
\nof the Lehman-Tenant Sublease and the 40th Floor Commencement Date. Tenant
\nhereby agrees that the provisions of this Article are intended to constitute “an
\nexpress provision to the contrary” within the meaning of Section 223-a of the
\nReal Property Law of the State of New York.<\/p>\n
(d) In addition to 40th Floor Fixed Rent, Tenant, simultaneously
\nwith the execution and delivery of this Amendment and in consideration therefor,
\nshall pay to Landlord, as additional rent under the Lease, the sum of FIVE
\nHUNDRED THOUSAND and 00\/100 ($500,000.00) DOLLARS (herein called the “Section
\n2(d) Additional Rent”). Tenant shall pay the Section 2(d) Additional Rent by one
\nor more separate checks of Tenant (the number and amount of such checks to be
\nsuch as Landlord shall reasonably request), each to be made payable to the order
\nof Landlord or such other payee(s) as Landlord shall direct in writing.<\/p>\n
-4-
\n 201<\/p>\n
3. Miscellaneous Amendments, Etc. to Existing Lease.<\/p>\n
(a) Effective as of the 40th Floor Commencement Date, and by
\noperation of the applicable definitions contained in Article 31 of the Original
\nLease, the fortieth (40th) floor of the Building shall become a “Premises Floor”
\nfor all purposes of the Lease.<\/p>\n
(b) (1) Landlord, as of the date hereof, hereby remakes the
\nrepresentation set forth in the last sentence of Section 5.02 of the Original
\nLease.<\/p>\n
(2) Landlord, as of the date hereof, hereby remakes the
\nrepresentation set forth in Section 8.06(a) of the Original Lease as to the
\nfortieth (40th) floor of the Building; it being agreed that, in connection
\ntherewith, the term “Acknowledged ACM Areas” is hereby amended to include (in
\naddition to those areas delineated as such in the Existing Lease) the areas on
\nthe fortieth (40th) floor of the Building which are delineated on Exhibit B
\nattached hereto. Landlord and Tenant hereby agree that, as between Landlord and
\nTenant, the provisions of Section 8.06 of the Lease shall be applicable to the
\n40th floor of the Building during the Lehman Sublease Period (as hereinafter
\ndefined) (as fully as such Section will be applicable to such floor after the
\nLehman Sublease Period); and, accordingly (but without limiting the generality
\nof the foregoing), for purposes of Section 8.06 of the Lease (i) during the
\nLehman Sublease Period the 40th floor shall be deemed to be a Premises Floor,
\nand (ii) the Lehman Sublease Period shall be deemed to be a part of the term of
\nthe Lease.<\/p>\n
(c) Notwithstanding the provisions of Section 14.03 of the Original
\nLease, Landlord, at Tenant’s expense, shall reasonably promptly (after the 40th
\nFloor Commencement Date) install the initial Tenant’s Submeter(s) to measure
\nTenant’s Base Electricity for the 40th Floor Space, and, for any period between
\nthe 40th Floor Commencement Date and the date of such installation, Tenant shall
\npay for the cost of such electricity at the rates set forth in, and in
\naccordance with the provisions of, Section 14.03(d)(1) (based upon the number of
\nrentable square feet in the 40th Floor Space).<\/p>\n
(d) (1) Effective as of the 40th Floor Commencement Date, Article 15
\nof the Original Lease is hereby amended as follows: (i) the references in
\nSection 15.04(a) and Section 15.04(b)(2) to “400 tons of chilled water” (which,
\npursuant to the Second Amendment, was changed in Section 15.04(a) to read “412
\ntons of chilled water”) are hereby further changed to read “450 tons of chilled
\nwater”; (ii) the reference to “$137” in the definition of Minimum Per Diem SCW
\nCharge, as set forth in Section 15.04(b)(1), is hereby changed to read “$154”;
\n(iii) subject to provisions of Section 6 of this Amendment, the provisions of
\nSection 15.05 and Section 15.10(d) shall not apply to the 40th Floor Space or
\notherwise to the fortieth (40th) floor of the Building or any elevators serving
\nsuch space or such floor (and, accordingly, such provisions shall continue to
\napply only to Original Lease Office Premises and the Premises Floor(s) on which
\nare located the Original Lease Office Premises); and (iv) notwithstanding the
\nprovisions of Section 15.12, Tenant may not<\/p>\n
-5-
\n 202<\/p>\n
designate the fortieth (40th) floor of the Building as the floor on which it
\nwill initially locate its cafeteria.<\/p>\n
(2) Subject to the provisions of Section 6 of this Amendment,
\nLandlord, commencing on the 40th Floor Commencement Date and thereafter
\nthroughout the term of the Lease (for so long as the 40th Floor Space shall be
\npart of the Premises), shall provide passenger elevator service to the fortieth
\n(40th) floor of the Building (with at least one (1) passenger elevator being in
\nservice at all times), subject to Section 15.10(a) of the Original Lease.
\nNotwithstanding anything to the contrary that may be contained herein, in no
\nevent shall Tenant ever use, or permit any Tenant Party to use, any passenger
\nelevator(s) serving the fortieth (40th) floor of the Building (i) to carry
\nconstruction personnel or materials, (ii) for deliveries of mail, food and
\nsimilar items, or any deliveries of packages and boxes by hand truck or similar
\ndevice.<\/p>\n
(e) Effective as of the 40th Floor Commencement Date, Article 16 of
\nthe Original Lease (as heretofore amended by Section 3(h) of the Second
\nAmendment) is hereby further amended as follows: (i) the areas of the Premises
\ndescribed in Section 16.02(d)(II)(z) relate also to the fortieth (40th) floor of
\nthe Building (as well as the 41st through 50th floors of the Building); (ii) the
\nrestrictions on Landlord’s right to install Mylar on the Building’s exterior
\nwindows serving the Premises which are set forth in Section 16.04(b) shall also
\napply to the Building’s exterior windows serving the 40th Floor Space (as well
\nas the Building’s exterior windows serving the Original Lease Office Premises);
\n(iii) clause (x) of Section 16.10 of the Original Lease is hereby further
\namended in its entirety to read “(x) if such directory is manual (i.e., not
\ncomputerized), a percentage of the total number of listing spaces\/slots on such
\ndirectory, which percentage is equal to the sum of Tenant’s Tax Share, Tenant’s
\n21st Floor Tax Share and Tenant’s 40th Floor Tax Share”; and (iv) the rights of
\nTenant under Section 16.15 shall also apply to the 40th Floor Space (in addition
\nto the Original Lease Office Premises), and the portions of the Designated Fire
\nStairwells located on the fortieth (40th) floor of the Building (in addition to
\nsuch portions located on the 41st through 50th floors of the Building).<\/p>\n
(f) Effective as of the date hereof, Article 37 of the Original
\nLease (as amended by Section 7 of the First Amendment and Section 3(k) of the
\nSecond Amendment) is hereby deleted from the Lease (and Tenant shall no longer
\nhave any rights thereunder); provided, however, that the definitions of “Base
\nBlock” and “Additional Full Floor Block” appearing in Section 37.04(j) of the
\nOriginal Lease (as modified by Section 7(a) of the First Amendment) shall remain
\npart of the Lease.<\/p>\n
(g) (1) With respect to Article 39 of the Original Lease (as amended
\nby Section 9 of the First Amendment), it is agreed that Unit 40 (in which Unit
\nthe 40th Floor Space is located) shall not constitute a “Premises Unit”.<\/p>\n
(2) Notwithstanding anything to the contrary contained in the
\nLease, if, during any period during the term of the Lease (from and after the
\n40th Floor<\/p>\n
-6-
\n 203<\/p>\n
Commencement Date), the owner or net lessee (i.e., lessee under an Underlying
\nLease) of all the Premises Units (i.e., the person which is defined as the
\nLandlord under the Lease pursuant to the definition of “Landlord” set forth
\nSection 39.01 of the Original Lease (disregarding the proviso to clause (i) of
\nsuch definition)) shall not also be either (i) the owner or net lessee of Unit
\n40, or (ii) the owner or net lessee of the portion of Unit 40 which includes the
\n40th Floor Space, then, during any such period, the owner or net lessee of Unit
\n40 (rather than the owner or net lessee of the Premises Units) shall be the
\n“Landlord” under the Lease with respect to the 40th Floor Space only (with the
\nowner or net lessee of the Premises Units remaining the Landlord under the Lease
\nwith respect to the Original Lease Office Premises).<\/p>\n
4. Amendments Re: Article 38 of Original Lease.<\/p>\n
(a) Article 38 of the Original Lease is hereby amended by deleting
\nSections 38.02 and 38.03 of the Original Lease (together with Section 8 of the
\nFirst Amendment) in their entirety, and adding in replacement thereof the
\nfollowing new Sections 38.02 and 38.03 (effective as of the date hereof):<\/p>\n
“38.02. (a) If Tenant exercises the First Renewal Option in
\n accordance with the terms of Section 38.01(a) of the Original Lease, then
\n the Lease shall thereupon be extended for the First Renewal Term upon all
\n the same terms, covenants and conditions as are contained in the Lease,
\n except that for, and during, the First Renewal Term:<\/p>\n
(1) the Fixed Rent shall be the sum of (i) the Original
\n Lease Office Premises Renewal Fixed Rent for the First Renewal Term, plus
\n (ii) the 21st Floor Space Renewal Fixed Rent for the First Renewal Term
\n (if any part of the 21st Floor Space is included within the First Renewal
\n Premises), plus (iii) the 40th Floor Space Renewal Fixed Rent for the
\n First Renewal Term (if any part of the 40th Floor Space is included within
\n the First Renewal Premises), plus (iv) the Storage Space Renewal Fixed
\n Rent for the First Renewal Term (if the Storage Space is included within
\n the First Renewal Premises), plus (v) the Retail Concourse Space Renewal
\n Fixed Rent for the First Renewal Term (if the Retail Concourse Space is
\n included within the First Renewal Premises);<\/p>\n
(2) the provisions of Article 3 of the Original Lease
\n (as amended and supplemented by the provisions of Second Amendment and the
\n Third Amendment) shall continue to apply to all the Office Premises
\n constituting part of the First Renewal Premises (and, as applicable, each
\n of the Tax Payment, including without limitation the 21st Floor Component
\n and the 40th Floor Component thereof, and the Operating Payment, including
\n without limitation the 21st Floor Operating Payment and 40th Floor
\n Operating Payment, shall continue to be payable thereunder), subject to
\n the following:<\/p>\n
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\n 204<\/p>\n
(A) effective as of first day of the First Renewal
\n Term (and for the entirety thereof), (i) each of the Base Tax Amount and
\n the 21st Floor Base Tax Amount shall be an amount equal to the Adjusted
\n Real Property Taxes for the Tax Year ending immediately prior to the
\n commencement of the First Renewal Term, and (ii) each of the Base
\n Operating Amount and the 21st Floor Base Operating Amount shall be an
\n amount equal to the Operating Expenses for the Operating Year ending
\n immediately prior to the commencement of the First Renewal Term;<\/p>\n
(B) effective as of May 1, 2008 (and for the
\n balance of the First Renewal Term), (i) the 40th Floor Base Tax Amount
\n shall be an amount equal to the Adjusted Real Property Taxes for the Tax
\n Year ending immediately prior to the commencement of the First Renewal
\n Term (it being understood that for the portion of the First Renewal Term
\n which is prior to May 1, 2008, the 40th Floor Base Tax Amount shall remain
\n an amount equal to the Adjusted Real Property Taxes for the Tax Year
\n commencing July 1, 1998 and ending June 30, 1999), and (ii) the 21st Floor
\n Base Operating Amount shall be an amount equal to the Operating Expenses
\n for the Operating Year ending immediately prior to the commencement of the
\n First Renewal Term (it being understood that for the portion of the First
\n Renewal Term which is prior to May 1, 2008, the 40th Floor Base Operating
\n Amount shall remain an amount equal to the Operating Expenses for the
\n Operating Year commencing January 1,1998 and ending December 31, 1998);
\n and<\/p>\n
(C) if, and to the extent that, the First Renewal
\n Premises shall, pursuant to one or more of the provisions of the Lease,
\n consist of less than the entirety of the Office Premises theretofore
\n constituting part of the Premises, then, as applicable, the Tenant’s Tax
\n Share, Tenant’s 21st Floor Tax Share, Tenant’s 40th Floor Tax Share,
\n Tenant’s Operating Share, Tenant’s 21st Floor Operating Share and\/or
\n Tenant’s 40th Floor Operating Share, as the case may be, shall be adjusted
\n on pro-rata rentable square foot basis (whether by operation of the
\n provisions defining the same or otherwise);<\/p>\n
(3) any provisions of the Lease with respect to (i)
\n Landlord’s Work, or (ii) any abatement period(s) with respect to Fixed
\n Rent, Operating Payments (including without limitation 21st Floor
\n Operating Payments and 40th Floor Operating Payments) and Tax Payments
\n (including without limitation the 21st Floor Component and the 40th Floor
\n Component of any Tax Payments) set forth in Articles 1, 3 and 4 of the
\n Original Lease (or any provision of the Second Amendment or Third
\n Amendment), shall not be applicable;<\/p>\n
(4) the provisions of Section 38.01(a) of the Original
\n Lease relative to Tenant’s right to renew the term of the Lease shall not
\n be applicable; and<\/p>\n
-8-
\n 205<\/p>\n
(5) the Expiration Date shall be the First Renewal
\n Expiration Date.<\/p>\n
(b) If Tenant exercises the Second Renewal Option in
\n accordance with the terms of Section 38.01(b) of the Original Lease, then
\n the Lease shall thereupon be extended for the Second Renewal Term upon all
\n the same terms, covenants and conditions as are contained in the Lease,
\n except that for, and during, the Second Renewal Term:<\/p>\n
(1) the Fixed Rent shall be the sum of (i) the Original
\n Lease Office Premises Renewal Fixed Rent for the Second Renewal Term, plus
\n (ii) the 21st Floor Space Renewal Fixed Rent for the Second Renewal Term
\n (if any part of the 21st Floor Space is included within the Second Renewal
\n Premises), plus (iii) the 40th Floor Space Renewal Fixed Rent for the
\n Second Renewal Term (if any part of the 40th Floor Space is included
\n within the Second Renewal Premises), plus (iv) the Storage Space Renewal
\n Fixed Rent for the Second Renewal Term (if the Storage Space is included
\n within the Second Renewal Premises), plus (v) the Retail Concourse Space
\n Renewal Fixed Rent for the Second Renewal Term (if the Retail Concourse
\n Space is included within the Second Renewal Premises);<\/p>\n
(2) the provisions of Article 3 of the Original Lease
\n (as amended and supplemented by the provisions of Second Amendment and the
\n Third Amendment) shall continue to apply to all the Office Premises
\n constituting part of the Second Renewal Premises (and, as applicable, each
\n of the Tax Payment, including without limitation the 21st Floor Component
\n and the 40th Floor Component thereof, and the Operating Payment, including
\n without limitation the 21st Floor Operating Payment and 40th Floor
\n Operating Payment, shall continue to be payable thereunder), subject to
\n the following:<\/p>\n
(A) effective as of first day of the Second
\n Renewal Term (and for the entirety thereof), (i) each of the Base Tax
\n Amount, the 21st Floor Base Tax Amount and the 40th Floor Base Tax Amount
\n shall be an amount equal to the Adjusted Real Property Taxes for the Tax
\n Year ending immediately prior to the commencement of the Second Renewal
\n Term, and (ii) each of the Base Operating Amount, the 21st Floor Base
\n Operating Amount and the 40th Floor Base Operating Amount shall be an
\n amount equal to the Operating Expenses for the Operating Year ending
\n immediately prior to the commencement of the Second Renewal Term; and<\/p>\n
(B) if, and to the extent that, the Second Renewal
\n Premises shall, pursuant to one or more of the provisions of the Lease,
\n consist of less than the entirety of the Office Premises theretofore
\n constituting part of the Premises, then, as applicable, the Tenant’s Tax
\n Share, Tenant’s 21st Floor Tax Share, Tenant’s 40th Floor Tax Share,
\n Tenant’s Operating Share, Tenant’s 21st Floor Operating Share and\/or
\n Tenant’s 40th Floor Operating Share, as the case may be, shall be adjusted
\n on<\/p>\n
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\n 206<\/p>\n
pro-rata rentable square foot basis (whether by operation of the
\n provisions defining the same or otherwise);<\/p>\n
(3) any provisions of the Lease with respect to (i)
\n Landlord’s Work, or (ii) any abatement period(s) with respect to Fixed
\n Rent, Operating Payments (including without limitation 21st Floor
\n Operating Payments and 40th Floor Operating Payments) and Tax Payments
\n (including without limitation the 21st Floor Component and the 40th Floor
\n Component of any Tax Payments) set forth in Articles 1, 3 and 4 of the
\n Original Lease (or any provision of the Second Amendment or Third
\n Amendment), shall not be applicable;<\/p>\n
(4) the provisions of Section 38.01 of the Original
\n Lease relative to Tenant’s right to renew the term of the Lease shall not
\n be applicable; and<\/p>\n
(5) the Expiration Date shall be the Second Renewal
\n Expiration Date.<\/p>\n
38.03. As used herein, the following terms shall have the following
\n meanings:<\/p>\n
(a) The “Fair Market Fixed Rent”, for any Renewal Term, shall
\n mean the per annum per rentable square foot rate of fixed rent that a
\n willing tenant would pay and a willing landlord would accept for a lease
\n of the Office Premises (excluding any portions thereof which, pursuant to
\n one or more provisions of the Lease, are not to be demised for such
\n Renewal Term, i.e., which are not part of the First Renewal Premises or
\n the Second Renewal Premises, as the case may be) having a 10-year term
\n (commencing with the commencement of such Renewal Term), and providing for
\n fixed annual rent on a level payment basis throughout such term (i.e., no
\n step-ups in fixed rent), assuming: (i) that the Office Premises (excluding
\n such portions thereof) were being demised in their “as is” condition as of
\n the date that Tenant exercised the applicable Renewal Option, without any
\n allowance or contribution by Landlord; (ii) that the Office Premises
\n (excluding such portions thereof) were being demised upon the same terms
\n and conditions as are provided for in the Lease for such Renewal Term
\n (including without limitation the terms and conditions set forth in
\n Section 38.02 hereinabove set forth) (but, in all cases, excluding, for
\n purposes of the determination of the applicable rate of Fair Market Fixed
\n Rent only, any different terms and conditions which are applicable only to
\n the 40th Floor Space for the initial part of the First Renewal Term); and
\n (iii) to the extent that the creditworthiness of the tenant is deemed
\n relevant by the person determining such Fair Market Fixed Rent, that the
\n tenant has a creditworthiness substantially equivalent to that of Tenant.<\/p>\n
(b) “Original Lease Office Premises Renewal Fixed Rent”, for
\n any Renewal Term, shall mean a per annum rate of Fixed Rent equal to the<\/p>\n
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\n 207<\/p>\n
product of (x) the Fair Market Fixed Rent for such Renewal Term,
\n multiplied by (y) the number of rentable square feet in the Original Lease
\n Office Premises (excluding any portions thereof which, pursuant to one or
\n more provisions of the Lease, are not to be demised during such Renewal
\n Term, i.e., which are not part of the First Renewal Premises or the Second
\n Renewal Premises, as the case may be). Such Fixed Rent shall be deemed
\n payable with respect to the Original Lease Office Premises (other than any
\n part thereof excluded as aforesaid) on pro-rata rentable square foot
\n basis.<\/p>\n
(c) “21st Floor Space Renewal Fixed Rent”, for any Renewal
\n Term, shall mean a per annum rate of Fixed Rent equal to the product of
\n (x) the Fair Market Fixed Rent for such Renewal Term, multiplied by (y)
\n the number of rentable square feet in the 21st Floor Space (excluding any
\n portions thereof which, pursuant to one or more provisions of the Lease,
\n are not to be demised during such Renewal Term, i.e., which are not part
\n of the First Renewal Premises or the Second Renewal Premises, as the case
\n may be). Such Fixed Rent shall be deemed payable with respect to the 21st
\n Floor Space (other than any part thereof excluded as aforesaid) on
\n pro-rata rentable square foot basis.<\/p>\n
(d) “40th Floor Space Renewal Fixed Rent” shall (I) for the
\n First Renewal Term, mean (x) for the portion of the First Renewal Term
\n commencing on October 1, 2004 and ending on April 30, 2008, both days
\n inclusive, a per annum rate of Fixed Rent equal to the rate of ONE MILLION
\n TWO HUNDRED THOUSAND FIVE HUNDRED SIXTY-TWO and 50\/100 ($1,200,562.50)
\n DOLLARS per annum (which rate shall be reduced on pro-rata rentable square
\n foot basis to the extent any part of the 40th Floor Space is not, pursuant
\n to one or more provisions of the Lease, part of the First Renewal
\n Premises), and (y) for the remainder of the First Renewal Term, a per
\n annum rate of Fixed Rent equal to the product of (aa) the Fair Market
\n Fixed Rent for the First Renewal Term, multiplied by (bb) the number of
\n rentable square feet in the 40th Floor Space (excluding any portions
\n thereof which, pursuant to one or more provisions of the Lease, are not to
\n be demised during the First Renewal Term, i.e., which are not part of the
\n First Renewal Premises), and (II) for the Second Renewal Term, mean a per
\n annum rate of Fixed Rent equal to the product of (A) the Fair Market Fixed
\n Rent for the Second Renewal Term, multiplied by (B) the number of rentable
\n square feet in the 40th Floor Space (excluding any portions thereof which,
\n pursuant to one or more provisions of the Lease, are not to be demised
\n during the Second Renewal Term, i.e., which are not part of the Second
\n Renewal Premises). Such Fixed Rent shall be deemed payable with respect to
\n the 40th Floor Space (other than any part thereof excluded as aforesaid)
\n on pro-rata rentable square foot basis.<\/p>\n
(e) “Storage Space Renewal Fixed Rent”, for any Renewal Term,
\n shall mean a per annum rate of Fixed Rent equal to the product of (x) the
\n per annum rate of Storage Space Fixed Rent payable immediately prior to
\n the Initial<\/p>\n
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\n 208<\/p>\n
Expiration Date, multiplied by (y) the Office Premises Factor (as
\n hereinafter defined) for such Renewal Term. Such Fixed Rent shall be
\n deemed payable with respect to the Storage Space on pro-rata rentable
\n square foot basis.<\/p>\n
(f) “Retail Concourse Space Renewal Fixed Rent”, for any
\n Renewal Term, shall mean a per annum rate of Fixed Rent equal to the
\n product of (x) the per annum rate of Retail Concourse Space Fixed Rent
\n payable immediately prior to the Initial Expiration Date, multiplied by
\n (y) the Office Premises Factor for such Renewal Term. Such Fixed Rent
\n shall be deemed payable with respect to the Retail Concourse Space on
\n pro-rata rentable square foot basis.<\/p>\n
(g) “Office Premises Factor”, for any Renewal Term, shall mean
\n a fraction, (i) the numerator of which is the Fair Market Fixed Rent for
\n such Renewal Term, and (ii) the denominator of which is $23.75 per
\n rentable square foot per annum.”<\/p>\n
(b) Article 38 of the Original Lease (as amended pursuant to Section
\n4(a) above) is hereby further amended by adding thereto the following Sections
\n38.06, 38.07 and 38.08 (effective as of the date hereof):<\/p>\n
“38.06. (a) For purposes of this Section 38.06, the following terms
\n shall have the following meanings:<\/p>\n
“Measuring Period” shall mean the period
\n commencing on October 1, 2004 and ending on September 30, 2005, both days
\n inclusive.<\/p>\n
“Non-Complete Renewal Fee” shall mean an amount
\n equal to the sum of (i) ONE MILLION TWO HUNDRED THOUSAND FIVE HUNDRED
\n SIXTY-TWO and 50\/100 ($1,200,562.50) DOLLARS, plus (ii) 1.737% of the
\n excess (the “NCRF Tax Excess”) of (x) the Adjusted Real Property Taxes
\n attributable to the Measuring Period, over (y) the Adjusted Real Property
\n Taxes for the Tax Year commencing July 1, 1998 and ending June 30, 1999,
\n plus (iii) 1.791% of the excess (the “NCRF Operating Excess”) of (x)
\n Operating Expenses attributable to the Measuring Period, over (y)
\n Operating Expenses for the Operating Year commencing January 1, 1998 and
\n ending December 31, 1998. To the extent more than a single Tax Year occurs
\n within the Measuring Period, the portion of the Adjusted Real Property
\n Taxes for each such Tax Year which shall be deemed attributable to the
\n Measuring Period shall be determined based upon the ratio that the number
\n of days in such Tax Year that are within the Measuring Period bears to the
\n total number of days in such Tax Year. To the extent more than a single
\n Operating Year occurs within the Measuring Period, the portion of the
\n Operating Expenses for each such Operating Year which shall be deemed
\n attributable to the Measuring Period shall be determined based upon the
\n ratio that the number of days in such Operating Year that are within the
\n Measuring Period bears to the total number of days in such<\/p>\n
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\n 209<\/p>\n
Operating Year. Notwithstanding the foregoing, if, as of March 31, 2003,
\n the Lease shall have been terminated as to one or more portions (but less
\n than the entirety) of the 40th Floor Space pursuant to the provisions of
\n Article 7 of the Original Lease (as amended), then the Non-Complete
\n Renewal Fee shall be reduced on a pro-rata rentable square foot basis
\n (based upon the ratio that the number of rentable square feet contained in
\n the theretofore terminated portions of the 40th Floor Space bears to the
\n number of rentable square feet comprising the entirety of the 40th Floor
\n Space).<\/p>\n
“Preliminary Non-Complete Renewal Fee Amount”
\n shall mean an amount equal to the sum of (i) ONE MILLION TWO HUNDRED
\n THOUSAND FIVE HUNDRED SIXTY-TWO and 50\/100 ($1,200,562.50) DOLLARS, plus
\n (ii) 1.737% of the best estimate of the NCRF Tax Excess (which estimate
\n shall be determined based upon the assumption that Adjusted Real Property
\n Taxes for each Tax Year following the last Tax Year for which the Tax
\n Closure Date occurred, as of September 1, 2003, will be 104% of the
\n Adjusted Real Property Taxes for the prior Tax Year), plus (iii) 1.791% of
\n the best estimate of the NCRF Operating Excess (which estimate shall be
\n determined based upon the assumption that Operating Expenses for each
\n Operating Year following the last Operating Year for which the Operating
\n Payment were finally determined between Landlord and Tenant, as of
\n September 1, 2003, will be 104% of the Operating Expenses for the prior
\n Operating Year). Notwithstanding the foregoing, if, as of March 31, 2003,
\n the Lease shall have been terminated as to one or more portions (but less
\n than the entirety) of the 40th Floor Space pursuant to the provisions of
\n Article 7 of the Original Lease (as amended), then the Preliminary
\n Non-Complete Renewal Fee shall be reduced on a pro-rata rentable square
\n foot basis (based upon the ratio that the number of rentable square feet
\n contained in the theretofore terminated portions of the 40th Floor Space
\n bears to the number of rentable square feet comprising the entirety of the
\n 40th Floor Space).<\/p>\n
“Determination Date” shall the later to occur of
\n (i) the date upon which the Tax Closure Date shall have occurred with
\n respect to all Tax Years the whole or any part of which occurs within the
\n Measuring Period, and (ii) the date upon which Operating Payment shall
\n have been finally determined (between Landlord and Tenant) for all
\n Operating Years the whole or any part of which occurs within the Measuring
\n Period.<\/p>\n
(b) If, and only if, (A) as of March 3l, 2003, the Lease
\n shall not have been terminated as to the entirety of the 40th Floor Space
\n pursuant to the provisions of Article 7 of the Original Lease (as
\n heretofore amended), and (B) either (1) Tenant shall not exercise the
\n First Renewal Option (and shall further not exercise the Special 40th
\n Floor Extension Option (as defined below)), or (2) Tenant shall exercise
\n the First Renewal Option but the First Renewal Premises shall not include
\n the 40th Floor Space, then Tenant, on account thereof, shall pay to
\n Landlord an amount equal to the Non-Complete Renewal Fee as follows: (i)
\n on or prior to June<\/p>\n
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\n 210<\/p>\n
30, 2004, Tenant shall pay to Landlord, on account of the Non-Complete
\n Renewal Fee, an amount equal to the Preliminary Non-Complete Renewal Fee
\n Amount; and (ii) within thirty (30) days after the Determination Date,
\n Landlord and Tenant shall reconcile the amount of the Preliminary
\n Non-Complete Renewal Fee Amount with the Non-Complete Renewal Fee, and (x)
\n if the Non-Complete Renewal Fee exceeds the Preliminary Non-Complete
\n Renewal Fee Amount, then Tenant shall pay to Landlord such excess,
\n together with interest on the amount of such excess at the Base Rate (for
\n the period from the date that the Preliminary Non-Complete Renewal Fee
\n Amount was paid to the date of the payment of such excess), or (y) if the
\n Preliminary Non-Complete Renewal Fee Amount exceeds the Non-Complete
\n Renewal Fee, then Landlord shall pay to Tenant such excess, together with
\n interest on the amount of such excess at the Base Rate (for the period
\n from the date that the Preliminary Non-Complete Renewal Fee Amount was
\n paid to the date of the payment of such excess).<\/p>\n
38.07. (a) If, and only if, (i) Tenant shall have not theretofore
\n exercised the First Renewal Option, (ii) Tenant shall have theretofore
\n irrevocably waived the First Renewal Option and the Second Renewal Option
\n in writing, and (iii) Tenant shall then be leasing the entirety of the
\n 40th Floor Space, then, and only in such events, Tenant shall have the
\n option (herein called the “Special 40th Floor Extension Option”) to extend
\n the term of the Lease as to the 40th Floor Space only for an additional
\n period commencing on October 1, 2004 and ending on April 30, 2008 (such
\n additional period being herein called the “Special 40th Floor Extension
\n Period”); provided, that, as of the date that Tenant gives Landlord the
\n Special 40th Floor Extension Notice (as hereinafter defined) the Lease
\n shall be in full force and effect. The Special 40th Floor Extension Option
\n shall be exercisable only by Tenant giving Landlord written notice of such
\n exercise (herein called the “Special 40th Floor Extension Notice”), which
\n notice shall be received by Landlord not later than the date that is
\n eighteen (18) months prior to the Expiration Date (time being of the
\n essence with respect to Landlord’s receipt of the Special 40th Floor
\n Extension Notice). Landlord, at its option, by notice to Tenant given no
\n later than ten (10) Business Days after Landlord’s receipt of the Special
\n 40th Floor Extension Notice, may render the Special 40th Floor Extension
\n Notice null and void if, at the time that Landlord receives the same, an
\n Event of Default shall have occurred and is then continuing.<\/p>\n
(b) If Tenant exercises the Special 40th Floor Extension
\n Option in accordance with the terms of Section 38.07(a) above, then the
\n Lease shall thereupon be extended for the 40th Floor Space only for the
\n Special 40th Floor Extension Period upon all the same terms, covenants and
\n conditions as are contained in the Lease, except that for, and during, the
\n Special 40th Floor Period: (1) the Premises shall consist solely of the
\n 40th Floor Space; (2) the Fixed Rent shall be a per annum rate of Fixed
\n Rent equal to the rate of ONE MILLION TWO HUNDRED THOUSAND FIVE HUNDRED
\n SIXTY-TWO and 50\/100 ($1,200,562.50) DOLLARS per annum; (3) the provisions
\n of Article 3 of the Original Lease (as<\/p>\n
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\n 211<\/p>\n
amended and supplemented by the provisions of Second Amendment and the
\n Third Amendment) shall continue to apply (but the Tax Payment shall
\n consist solely of the 40th Floor Component thereof, and the Operating
\n Payment shall consist solely of the 40th Floor Operating Payment); (4) any
\n provisions of the Lease with respect to (i) Landlord’s Work, or (ii) any
\n abatement period(s) with respect to Fixed Rent, Operating Payments and Tax
\n Payments set forth in Articles 1, 3 and 4 of the Original Lease (or any
\n provision of the Second Amendment or Third Amendment) shall not be
\n applicable; (5) Tenant shall have no further right to renew or extend the
\n term of the Lease; and (6) the Expiration Date shall be April 30, 2008.
\n Furthermore, and notwithstanding anything to the contrary contained
\n herein, the Lease, effective as of first day of the Special 40th Floor
\n Extension Period, shall, automatically and without further act of the
\n parties, be deemed further amended and modified as provided on Exhibit C
\n attached hereto. Tenant, at the request of Landlord, shall execute an
\n instrument, in the form of a lease amendment, confirming the terms and
\n conditions of the Lease during the Special 40th Floor Extension Period
\n (including, without limitation, the amendments and modifications to the
\n Lease set forth on Exhibit C attached hereto), provided, that the failure
\n of Tenant to execute such instrument shall not affect the effectiveness of
\n terms and conditions (including without limitation such amendments and
\n modifications) or the validity thereof or the validity of any other
\n provision of the Lease.<\/p>\n
38.08. (a) If Tenant exercises a Renewal Option as to less than the
\n entire Premises (as of such the date of such exercise), then, as of the
\n Initial Expiration Date (in the case of the First Renewal Option being
\n exercised as to less than the entire then Premises) and\/or the First
\n Renewal Expiration Date (in the case of the First Renewal Option being
\n exercised as to less than the entire then Premises), the Lease shall be
\n deemed to have expired with respect to all portions of the then Premises
\n as to which such Renewal Option is not exercised, for all purposes of the
\n Lease (including without limitation any surrender or restoration
\n obligations of Tenant under the Lease as to all such portions of the
\n Premises).<\/p>\n
(b) If Tenant exercises the Special 40th Floor Extension
\n Option in accordance with the terms of Section 38.07(a) above, then the
\n Lease (except as to the 40th Floor Space) shall be deemed to have expired
\n as of the Initial Expiration Date for all purposes (including without
\n limitation any surrender or restoration obligations of Tenant under the
\n Lease as to the Premises or any space in the Building (other than the 40th
\n Floor Space)).”<\/p>\n
5. Alterations Under Lehman Sublease.<\/p>\n
(a) Landlord and Tenant acknowledge that, pursuant to the
\naforementioned Consent and Agreement among Landlord, Lehman, Continental and
\nTenant in respect of the assignment of the Lehman-Tenant Sublease, Lehman has
\nagreed that, for the period from the date hereof until the end of the term of
\nthe Lehman-Tenant Sublease (the “Lehman Sublease<\/p>\n
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\n 212<\/p>\n
Period”), Tenant may perform any and all Alterations in and to the 40th Floor
\nSpace that Tenant desires, subject only to Tenant obtaining Landlord’s consent
\nthereto or Landlord’s agreement that its consent thereto is not required.<\/p>\n
(b) Landlord and Tenant hereby agree that, as between Landlord and
\nTenant during the Lehman Sublease Period, the provisions of the Lease shall
\ngovern and control all Alterations made (or proposed to be made) by Tenant in
\nand to the 40th Floor Space (as fully as such provisions will govern and control
\nthe same from and after the 40th Floor Commencement Date, when the 40th Floor
\nSpace becomes part of the Premises); and, accordingly (but without limiting the
\ngenerality of the foregoing), (i) Tenant, during the Lehman Sublease Period,
\nshall not make any Alterations in or to the 40th Floor Space, except as
\nexpressly permitted under the provisions of Article 11 of the Original Lease, as
\namended (applied as though the 40th Floor Space were part of the Premises), (ii)
\nthe provisions of Section 2.02(c) of the Original Lease shall apply to permitted
\nAlterations in or to the 40th Floor Space during the Lehman Sublease Period, and
\n(iii) all Alterations made during the Lehman Sublease Period shall be deemed
\n“Tenant’s Improvements” for all purposes of the Lease (including any surrender
\nor restoration obligations of Tenant under the Lease), as fully as if the same
\nwere made after the 40th Floor Commencement Date.<\/p>\n
6. 40th Floor Elevator Work.<\/p>\n
(a) For purposes hereof, the following terms shall have the
\nfollowing meanings:<\/p>\n
“40th Floor Elevator Work” shall mean (i) the Alterations
\nwhich would be necessary or appropriate to permit the Bank X Elevators to open
\non the 40th floor of the Building, so as allow such elevators to serve the 40th
\nFloor Space, and (ii) if Tenant shall so elect in conjunction with or after the
\nperformance of the Alterations referred to in clause (i) of this definition, the
\nAlterations which would be necessary or appropriate to close off the openings
\nthrough which the Current 40th Floor Elevators currently serve the 40th Floor of
\nthe Building, so as to prevent access to the 40th Floor Space through such
\nelevators.<\/p>\n
“Bank X Elevators” shall mean the hi-rise passenger elevators
\ncurrently serving the 41st through 50th floors of the Building and located
\nwithin the bank of passenger elevators known as “X Bank”.<\/p>\n
“Current 40th Floor Elevators” shall mean the hi-rise
\npassenger elevators currently serving the 40th floor of the Building (being
\nthose passenger elevators located with the bank known as “W Bank”).<\/p>\n
(b) Landlord and Tenant hereby (i) acknowledge that the 40th Floor
\nElevator Work, for purposes of the Lease, shall constitute Material Alterations
\n(and, as applicable, Exterior Material Alterations), and (ii) agree that the
\n40th Floor Elevator Work shall also be deemed Pre-Authorized Alterations (and,
\naccordingly, Tenant shall have the<\/p>\n
-16-
\n 213<\/p>\n
right to perform the 40th Floor Elevator Work, subject to and in accordance with
\nthe provisions of Article 11 of the Original Lease, as amended, including
\nwithout limitation Section 11.02(c) of the Original Lease (which section, inter
\nalia, conditions such right upon Tenant obtaining Landlord’s approval of the
\n40th Floor Elevator Work as set forth on plans and specifications pursuant to
\nthe provisions of Section 11.02(b) of the Original Lease)).<\/p>\n
(c) If Tenant performs the Alterations referred to in clause (i) of
\nthe definition of 40th Floor Elevator Work above, then the following provisions
\nshall apply: (i) Landlord, after Tenant’s request and at Tenant’s sole expense,
\nshall (x) reasonably promptly reprogram the Bank X Elevators to stop at the 40th
\nfloor of the Building (in addition to the 41st through 50th floors of the
\nBuilding), and (y) if Tenant shall so request in conjunction with or after the
\nperformance of the Alterations referred to in clause (i) of the definition of
\n40th Floor Elevator Work above, reasonably promptly reprogram the Current 40th
\nFloor Elevators to no longer stop at the 40th floor of the Building (and, thus,
\nno longer serve the 40th Floor Space); (ii) Landlord, at Tenant’s sole expense,
\nshall make appropriate modifications to the Building’s existing elevator lobby
\nsignage to reflect the fact that the Bank X Elevators now serve the 40th floor
\nof the Building (and, if the Current 40th Floor Elevators are reprogrammed
\npursuant to clause (i)(y) above, to reflect the fact that the Current 40th Floor
\nElevators no longer serve the 40th floor of the Building); and (iii) all the
\nwork needed to reverse the 40th Floor Elevator Work and restore the applicable
\nareas of the Building to their condition existing prior to the performance of
\nthe 40th Floor Elevator Work, ordinary wear and tear excepted (all such work
\nbeing herein called the “Elevator Restoration Work”) shall be deemed added to
\nthe Section 12.02(c) Work (in addition to the work currently set forth as the
\nSection 12.02(c) Work pursuant to Section 12.02(c)(1)(B) of the Original Lease),
\nand, accordingly, Tenant, at its sole expense, shall perform the same (together
\nwith the balance of the Section 12.02(c) Work) as and when required under
\nSection 12.02(c) of the Original Lease.<\/p>\n
7. Intentionally Omitted.<\/p>\n
8. Brokerage.<\/p>\n
(a) Landlord and Tenant each warrant and represent to the other that
\nno brokers, except Insignia\/Edward S. Gordon Company, Inc. (“ESG”), as agent for
\nLandlord, and Goldman, Sachs & Co. (“GS”) and Newmark & Company Real Estate,
\nInc. (“Newmark”), as brokers for Tenant (ESG, GS and Newmark being herein
\ncollectively called the “Brokers”), were instrumental in bringing about or
\nconsummating this Amendment (or any transaction effected or contemplated hereby)
\nand that they have had no conversations or negotiations with any broker except
\nthe Brokers concerning the leasing of the 40th Floor Space. Landlord and Tenant
\neach agree to indemnify and hold harmless the other against and from any claims
\nfor any brokerage commissions and all costs, expenses and liabilities in
\nconnection therewith, including, without limitation, reasonable attorneys’ fees
\nand expenses,<\/p>\n
-17-
\n 214<\/p>\n
arising out of any conversations or negotiations had by that party with any
\nbroker other than the Brokers.<\/p>\n
(b) Landlord agrees to pay ESG any brokerage commission to which it
\nis entitled with respect to the leasing of the 40th Floor Space. Landlord
\nfurther agrees to indemnify and hold harmless Tenant against and from any claims
\nfor any brokerage commissions by ESG based thereon, and all costs, expenses and
\nliabilities in connection therewith, including, without limitation, reasonable
\nattorneys’ fees and expenses.<\/p>\n
(c) Tenant agrees to pay (or cause to be paid) Newmark any brokerage
\ncommission to which it is entitled with respect to the leasing of the 40th Floor
\nSpace. Tenant further agrees to indemnify and hold harmless Landlord against and
\nfrom any claims for any brokerage commissions by Newmark based thereon, and all
\ncosts, expenses and liabilities in connection therewith, including, without
\nlimitation, reasonable attorneys’ fees and expenses.<\/p>\n
(d) Landlord agrees to pay GS a commission pursuant to a separate
\nagreement, dated as of the date hereof, between Landlord and GS (it being agreed
\nthat any other commissions or amounts due GS in respect of the leasing of the
\n40th Floor Space shall be paid by Tenant to GS).<\/p>\n
9. Miscellaneous.<\/p>\n
(a) This Amendment shall not be binding upon either Landlord or
\nTenant unless and until the same shall have been executed, acknowledged and
\ndelivered by both Landlord and Tenant.<\/p>\n
(b) Except as amended and modified by this Amendment, the Existing
\nLease and all the covenants, agreements, terms, provisions and conditions
\nthereof are hereby in all respects ratified and confirmed.<\/p>\n
-18-
\n 215<\/p>\n
(c) The covenants, agreements, terms, provisions and conditions
\ncontained in this Amendment shall bind and inure to the benefit of the parties
\nhereto and their respective successors and, except as otherwise provided in the
\nLease as amended and modified by this Amendment, their respective assigns.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
\nas of the day and year first above written.<\/p>\n
LANDLORD:<\/p>\n
THE CHASE MANHATTAN BANK<\/p>\n
By: \/s\/ Gerard J. Vanella
\n ———————-
\n Name: Gerard J. Vanella
\n Title: VP<\/p>\n
TENANT:<\/p>\n
THE GOLDMAN SACHS GROUP, L.P.<\/p>\n
By: The Goldman Sachs Corporation,
\n general partner<\/p>\n
By: \/s\/ David Blood
\n ———————
\n Name: David Blood
\n Title: EVP<\/p>\n
-19-
\n 216<\/p>\n
CONSENTS TO AMENDMENT:<\/p>\n
The undersigned, pursuant to that certain Non-Disturbance Agreement, made as of
\nthe 5th day of April, 1994, between the undersigned, as “Net Lessor”, and
\nTenant, does hereby consent to this Amendment.<\/p>\n
THE ONE NEW YORK PLAZA CONDOMINIUM<\/p>\n
By: The Board<\/p>\n
By: \/s\/ Gerard J. Vanella
\n ———————-
\n Name: Gerard J. Vanella
\n Title: Pres.<\/p>\n
The undersigned, pursuant to that certain Non-Disturbance Agreement, made as of
\nthe 5th day of April, 1994, between the undersigned, as “Underlying Lessor”, and
\nTenant, does hereby consent to this Amendment.<\/p>\n
THE CHASE MANHATTAN BANK<\/p>\n
By: \/s\/ Gerard J. Vanella
\n ———————-
\n Name: Gerard J. Vanella
\n Title: Pres.<\/p>\n
-20-
\n 217<\/p>\n
LANDLORD<\/p>\n
STATE OF NEW YORK )
\n : ss.:
\nCOUNTY OF NEW YORK )<\/p>\n
On the 6 day of November, 1997, before me personally came Gerard J.
\nVanella, to me known, who, being duly sworn by me, did depose and say that he
\nresides at Coram, New York; that he is a Vice President of THE CHASE MANHATTAN
\nBANK, the banking association described in and which executed the foregoing
\ninstrument; and that he signed his name thereto by order of the Board of
\nDirectors of said association.<\/p>\n
\/s\/ Jasmine W. Ho
\n ———————————–
\n Notary Public<\/p>\n
Jasmine W. Ho
\n Notary Public, State of New York
\n TENANT No. 01HO5063005
\n Qualified in Kings County
\n Commission Expires July 15, 1998<\/p>\n
STATE OF NEW YORK )
\n : ss.:
\nCOUNTY OF NEW YORK )<\/p>\n
On the _________ day of _____________, 1997, before me personally came
\n______________________, to me known, who, being duly sworn by me, did depose and
\nsay that he resides at _______________________________________________; that he
\nis a ______________of THE GOLDMAN SACHS CORPORATION (the “Corporation”), the
\ncorporation described in and which executed the foregoing instrument; that such
\ncorporation is a general partner of THE GOLDMAN SACHS GROUP, L.P. (the
\n“Partnership”), the partnership described in and which executed the foregoing
\ninstrument; that the execution of the instrument by the Partnership was duly
\nauthorized according to its Articles of Partnership; that the Corporation, as
\ngeneral partner, executed the instrument on behalf of the Partnership pursuant
\nto said authorization; that the execution of the instrument by the Corporation
\nwas authorized by its board of directors; and that he signed his name thereto by
\norder of such board of directors.<\/p>\n
———————————–
\n Notary Public<\/p>\n
-21-
\n 218<\/p>\n
EXHIBIT A<\/p>\n
FLOOR PLAN OF 40TH FLOOR SPACE<\/p>\n
This floor plan is annexed to and made a part of this Amendment
\nsolely to indicate the 40th Floor Space by outlining and diagonal marking. All
\nareas, conditions, dimensions and locations are approximate.<\/p>\n
[FLOOR PLAN OMITTED]<\/p>\n
40TH FLOOR OF ONE NEW YORK PLAZA
\n 219<\/p>\n
EXHIBIT B<\/p>\n
ACKNOWLEDGED ACM AREAS, RE: 40TH FLOOR<\/p>\n
[see attached]
\n 220<\/p>\n
FLOOR PLAN 40<\/p>\n
[FLOOR PLAN OMITTED]<\/p>\n
221<\/p>\n
EXHIBIT C<\/p>\n
LEASE AMENDMENT AND MODIFICATIONS<\/p>\n
RE: SPECIAL 40TH FLOOR EXTENSION OPTION<\/p>\n
Effective as of the first day of the Special 40th Floor Extension
\nPeriod, the Lease shall be amended and modified as follows (all article and
\nsection references are to the Original Lease, as such articles and sections may
\nhave heretofore been amended, or may hereafter be amended):<\/p>\n
1. Section 2.01(y) of the Lease shall be deemed deleted and the uses
\nset forth therein shall no longer be deemed permitted uses under the Lease.<\/p>\n
2. Section 2.04 of the Lease shall be amended to read as follows:<\/p>\n
2.04. Tenant shall not use, or suffer or permit anyone
\n to use, the Premises or any part thereof, by or for (i) an agency,
\n department or bureau of the United States Government, (ii) any state
\n or municipality within the United States or any foreign government,
\n or any political subdivision of any of them, (iii) an employment or
\n travel agency (other than an executive search firm and other than an
\n employment or travel agency primarily serving Tenant’s employees),
\n (iv) any charitable or religious organization or union (it being
\n agreed that this clause shall not prohibit such an organization from
\n using discrete portions of the Premises on a short-term basis and
\n for discrete purposes, provided that Tenant receives no
\n consideration therefor), (v) a school or classroom (it being agreed
\n that this clause shall not prohibit Tenant from occasionally,
\n temporarily or permanently using conference rooms or other areas of
\n the Premises for training purposes and lectures in connection with
\n and incidental to Tenant’s business, it being understood that all
\n such uses shall be considered Secondary Uses and, accordingly, that
\n Tenant shall be responsible for obtaining any permits or licenses
\n required in connection therewith), (vi) medical or psychiatric
\n offices (it being agreed that this clause shall not prohibit Tenant
\n from employing doctors and\/or nurses at the Premises for Tenant’s
\n employees), (vii) conduct of an auction (other than in the ordinary
\n course of Tenant’s business), (viii) gambling activities, (ix) the
\n conduct of obscene, pornographic or similarly disreputable
\n activities, (x) an automated teller machine or similar facility,
\n (xi) a restaurant and\/or bar and\/or the sale of confectionery and\/or
\n soda and\/or beverages and\/or sandwiches and\/or ice cream and\/or
\n baked goods (the foregoing shall not prohibit the use of portions of
\n the Premises for kitchenette, pantry and vending machine areas in
\n accordance with Section 2.01(i) above), (xii) the business of
\n photographic reproductions and\/or offset printing (except that
\n Tenant may use portions of<\/p>\n
222<\/p>\n
the Premises for photographic reproductions and\/or offset printing
\n in connection with, either directly or indirectly, its own business
\n and\/or activities), (xiii) the retail offices or the retail
\n activities of a bank, trust company, safe deposit business, savings
\n and loan association, or a loan company, (xiv) the sale of
\n traveler’s checks or foreign exchange, or (xv) a retail stock or
\n securities brokerage office or for retail stock or securities
\n brokerage purposes. For purposes of this Section 2.04, the term
\n “retail” shall refer to a business whose primary patronage are
\n customers visiting its offices in person.<\/p>\n
3. Section 3.02(d)(2) of the Lease shall be deemed deleted from the
\nLease and the provisions thereof shall no longer be applicable.<\/p>\n
4. Section 7.02(c)(2) of the Lease shall be deemed deleted from the
\nLease and the provisions thereof shall no longer be applicable.<\/p>\n
S. Section 10.03 of the Lease shall be deemed deleted from the Lease
\nand the provisions thereof shall no longer be applicable.<\/p>\n
6. The last four sentences of Section 13.02(b) of the Lease shall be
\ndeemed deleted from the Lease and the provisions thereof shall no longer be
\napplicable.<\/p>\n
7. Section 14.02 of the Lease shall be deemed deleted from the
\nLease, and, accordingly, (i) Landlord need no longer furnish, and Tenant shall
\nhave no further right to, Tenant’s Supplemental Electricity, and (ii) Tenant
\nshall have no further right to use Tenant’s Supplemental Electricity Conduits.<\/p>\n
8. Section 15.04 of the Lease shall be modified as follows: (i)
\nreferences therein to “450 tons of chilled water” shall be reduced to the
\nRevised Chilled Water Number (as defined below) of tons of chilled water (and
\nLandlord shall only be obligated to furnish the Revised Chilled Water Number of
\ntons of chilled water pursuant to such Section 15.04); and (ii) the “Minimum Per
\nDiem SCW Charge” shall be reduced by multiplying the same by a fraction the
\nnumerator of which is the Revised Chilled Water Number and the denominator of
\nwhich is 450. The “Revised Chilled Water Number” shall mean the lesser of (I)
\nthe number of tons of chilled water which, as of the first day of the Special
\n40th Floor Extension Period, is actually being drawing by Tenant with respect to
\nthe 40th Floor Space, and (II) 60.<\/p>\n
9. Section 15.05(a) of the Lease shall be modified as follows: (i)
\nthe reference in Section 15.05(a)(i) to “eight (8)” shall be changed to “four
\n(4)”; and (ii) the Evening Elevator Number shall be changed to “two (2)”.<\/p>\n
10. Section 15.10(c) of the Lease shall be deemed deleted from the
\nLease and the provisions thereof shall no longer be applicable.<\/p>\n
-2-
\n 223<\/p>\n
11. Section 15.12 of the Lease shall be deemed deleted from the
\nLease and, accordingly, Tenant shall no longer have any right to use the gas
\nriser referred to therein.<\/p>\n
12. Section 15.13 of the Lease shall be deemed deleted from the
\nLease and, accordingly, Landlord shall no longer have any obligation to furnish
\nsteam as referred to therein.<\/p>\n
13. Section 16.04(b) of the Lease shall be deemed deleted from the
\nLease and the provisions thereof shall no longer be applicable.<\/p>\n
14. Section 35.15(b) of the Lease shall be amended to read as
\nfollows:<\/p>\n
(b) If (i) Landlord shall perform work in
\n the Premises or on the floor on which the Premises are located, and
\n (ii) Tenant furnishes Landlord with a statement requesting that
\n Landlord perform such work (or specifically identified portions
\n thereof) on an overtime basis, then (A) Landlord shall perform such
\n work (or specifically identified portions thereof) on such overtime
\n basis (provided, that (x) doing so will not have an adverse impact
\n on other tenants of the Building, and (y) overtime labor is
\n reasonably available, and provided, further, that, if Tenant’s
\n aforesaid request is received by Landlord after Landlord has either
\n commenced the work in question or made arrangements with respect to
\n the timing thereof, then Landlord need only perform such work on an
\n overtime basis to the extent it can reasonably do so without
\n disruption of such work), and (B) Tenant, within thirty (30) days
\n after its receipt of a demand therefor, shall pay to Landlord, as
\n Additional Charges, all of the costs Landlord incurs in connection
\n with the performance of such work on an overtime basis, including,
\n without limitation, all the costs of any stand-by personnel required
\n in connection therewith (including, without limitation, operating
\n engineers and stand-by electricians).<\/p>\n
15. Section 35.15(c) of the Lease shall be deemed deleted from the
\nLease and the provisions thereof shall no longer be applicable.<\/p>\n
16. Article 38 of the Lease (other than Sections 38.07 and 38.08 of
\nthe Lease) shall be deemed deleted in its entirety and, accordingly, Tenant
\nshall have no longer have any right to renew the Lease.<\/p>\n
17. Tenant shall not have any further rights under Section 41.09 of
\nthe Lease to install or keep any Section 41.09 Enclosures or to run any pipes,
\nconduits, wires or cables therein or any other rights under Section 41.09 of the
\nLease; except that Tenant may keep any existing Section 41.09 Enclosures (and
\nthe pipes, conduits, wires and cabling therein), but only to the extent that (x)
\nLandlord shall not have theretofore terminated, or does not herewith or
\nhereafter terminate, Tenant’s rights under Sections 41.03 and\/or 41.04 of the
\nLease and\/or Tenant’s rights under Section 41.05 of the Lease to install,
\noperate,<\/p>\n
-3-
\n 224<\/p>\n
repair, replace and maintain Tenant’s UPS System (it being understood that
\nLandlord has such termination rights under Section 41.08 of the Lease), and (y)
\nsuch Section 41.09 Enclosures are used in connection with Tenant’s exercise of
\nsuch rights.<\/p>\n
18. In addition to the foregoing, any provisions of the Lease which,
\nby their terms, are no longer applicable due to the size of the Premises (i.e.,
\na single floor) shall likewise be deemed deleted.<\/p>\n
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