EXHIBIT 10.14
AMENDED AND RESTATED LEASE
ISE ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇
to
▇▇▇▇▇▇▇▇▇▇ ▇▇▇., TENANT
FOR THE BUILDING KNOWN AS
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
TABLE OF CONTENTS
Page
PREAMBLE.....................................................................1
ARTICLE ONE LEASE OF PREMISES................................1
Section 1.01. Lease of Premises......................................1
ARTICLE TWO TERM.............................................2
Section 2.01. Initial Term..........................................2
Section 2.02. Renewal Term...........................................2
Section 2.03. Right of First Offer...................................3
Section 2.04. 557 Property Right of First Offer......................7
Section 2.05. Term of this Lease.....................................8
ARTICLE THREE DELIVERY OF PREMISES.............................8
Section 3.01. Delivery of Premises...................................8
Section 3.02. Subtenancies...........................................8
Section 3.03. Capital Improvement Funds..............................8
ARTICLE FOUR RENTAL...........................................9
Section 4.01. Annual Rental..........................................9
Section 4.02. Net Lease.............................................10
Section 4.03. Real Estate Taxes.....................................10
Section 4.04. Renewal Rental.......................................12
Section 4.05. Certain Offset Rights.................................13
ARTICLE FIVE OPERATIONS AND MAINTENANCE......................13
Section 5.01. Standard of Operations................................13
Section 5.02. Cost of Operations and Maintenance....................14
Section 5.03. Consultative Period...................................15
Section 5.04. Tenant's Insurance....................................16
ARTICLE SIX LEASEHOLD MORTGAGES.............................18
Section 6.01. Mortgageable Lease....................................18
(i)
ARTICLE SEVEN USE AND ACCESS..................................19
Section 7.01. Use...................................................19
Section 7.02. Access................................................22
ARTICLE EIGHT REPAIR AND MAINTENANCE.........................22
Section 8.01. Tenant's Obligation to Repair and Maintain............22
ARTICLE NINE FIRE AND OTHER CASUALTY.........................23
Section 9.01. Damage or Destruction.................................23
Section 9.02. Waiver of Subrogation Rights..........................23
ARTICLE TEN LIABILITY.......................................24
Section 10.01. Indemnification of the Parties........................24
Section 10.02. Landlord's Exculpation................................24
ARTICLE ELEVEN ALTERATIONS AND FIXTURES........................25
Section 11.01. Alterations by Tenant.................................25
Section 11.02. Requirements..........................................27
Section 11.03. Tenant's Property.....................................28
Section 11.04. Restoration Obligation................................28
Section 11.05. Landlord's Property...................................29
ARTICLE TWELVE CONDEMNATION....................................30
Section 12.01. Total Taking..........................................30
Section 12.01. Partial Taking........................................30
Section 12.03. Claims of Landlord and Tenant.........................30
Section 12.04. Distribution of the Award.............................30
Section 12.05. Temporary Taking of Premises.........................31
Section 12.06. Tenant's Obligation to Restore........................31
ARTICLE THIRTEEN REMEDIES AND DEFAULTS...........................31
Section 13.01. Default by Tenant.....................................31
Section 13.02. Landlord's Remedies...................................32
Section 13.03. Late Payments.........................................33
Section 13.04. Prevailing Party......................................33
ARTICLE FOURTEEN BANKRUPTCY......................................34
Section 14.01. Bankruptcy by Tenant..................................34
(ii)
ARTICLE FIFTEEN COMPLIANCE WITH LAWS............................34
Section 15.01. Tenant's Compliance with Laws.........................34
ARTICLE SIXTEEN ASSIGNMENT AND SUBLETTING.......................35
Section 16.01. Assignment by Tenant.................................35
Section 16.02. Subletting by Tenant..................................37
Section 16.03. Partnership Tenant....................................40
Section 16.04. Acceptance of Rent....................................40
ARTICLE SEVENTEEN LANDLORD'S ACCESS...............................40
Section 17.01. Landlord's Access to Premises.........................40
Section 17.02. Limitations on Landlord's Right to Change the
Building...........................................40
ARTICLE EIGHTEEN NAME OF BUILDING; SIGNS.........................41
Section 18.01. Tenant's Right to Designate Building Name.............41
Section 18.02. Signs Identifying the Building........................41
Section 18.03. Landlord's Exterior Sign..............................41
ARTICLE NINETEEN QUIET ENJOYMENT.................................42
Section 19.01. Quiet Enjoyment......................................42
ARTICLE TWENTY NON-WAIVER......................................42
Section 20.01. Non-Waiver By Either Party............................42
ARTICLE TWENTY-ONE NOTICES; CONSENT TO JURISDICTIONS...............42
Section 21.01. Notices to Landlord or Tenant.........................42
Section 21.02. Consent to Jurisdiction...............................43
ARTICLE TWENTY-TWO PARTIAL INVALIDITY..............................45
Section 22.01. Severability Clause...................................45
ARTICLE TWENTY-THREE BROKERAGE.......................................45
Section 23.01. Brokerage.............................................45
ARTICLE TWENTY-FOUR SUBORDINATION; NON-DISTURBANCE..................45
Section 24.01. Subordination.........................................45
(iii)
Section 24.02. Non-disturbance......................................47
ARTICLE TWENTY-FIVE [Intentionally Omitted].........................49
ARTICLE TWENTY-SIX ARBITRATION OF DISPUTES.........................49
Section 26.01. Arbitration...........................................49
Section 26.02. Payment of Expenses in Certain Circumstances..........51
ARTICLE TWENTY-SEVEN ENVIRONMENTAL MATTERS...........................51
Section 27.01. Tenant's Covenants....................................51
Section 27.02. Indemnity.............................................51
ARTICLE TWENTY-EIGHT REPRESENTATIONS AND WARRANTIES OF LANDLORD;
INDEMNITIES.....................................52
Section 28.01. Representations and Warranties of Landlord............52
Section 28.02. Negative Covenants....................................52
Section 28.03. Landlord's Indemnity..................................53
Section 28.04. Tenant's Indemnity...................................53
ARTICLE TWENTY-NINE LANDLORD'S LIABILITY............................53
Section 29.01. Landlord's Liability..................................53
ARTICLE THIRTY [Intentionally Omitted].........................54
ARTICLE THIRTY-ONE MISCELLANEOUS...................................54
Section 31.01. Certain Miscellaneous Provisions......................54
Section 31.02. Governing Law.........................................56
Section 31.03. Memoranda Agreements..................................56
Section 31.04. Additional Rent.......................................56
Section 31.05. Estoppel Certificates.................................57
Section 31.06. No Merger.............................................57
Section 31.07. Business Days.........................................57
Section 31.08. Hold-over.............................................57
Section 31.09. Financial Statements..................................58
Section 31.10. Ise Sublease..........................................58
Section 31.11. Transfer of Ownership.................................58
Section 31.12. Reduced FAR...........................................58
(iv)
ARTICLE THIRTY-TWO SECURITY........................................58
Section 32.01. Security..............................................58
ARTICLE THIRTY-THREE ▇▇▇ FINANCING...................................60
Section 33.01. ▇▇▇ Financing.........................................60
EXHIBIT A DESCRIPTION OF LAND
EXHIBIT B DESCRIPTION OF 557 LAND
EXHIBIT C ELEVATOR LOCATION
EXHIBIT D BATHROOM LOCATION
EXHIBIT E LANDLORD'S SIGN
EXHIBIT F LANDLORD'S LETTER OF CREDIT
EXHIBIT G NON-DISTURBANCE, SUBORDINATION AND ATTORNMENT AGREEMENT
EXHIBIT H EXISTING ENCUMBRANCES, COVENANTS, AGREEMENTS AND EASEMENTS
EXHIBIT I TENANT'S LETTER OF CREDIT
SCHEDULE 1 SUBLEASES
SCHEDULE 2 ANNUAL RENT
(v)
INDEX OF TERMS USED IN LEASE
Page
557 Building.................................................................7
557 Document.................................................................7
557 Land....................................................................7
557 Landlord.................................................................1
557 Property.................................................................7
557 Right of First Offer.....................................................7
AAA.........................................................................48
Acceptable Purchaser.........................................................5
additional out-of-pocket expense............................................20
Additional Rent.............................................................55
Affiliate...................................................................53
Alterations.................................................................24
Annual Rental................................................................9
Applicable Law..............................................................33
Atrium......................................................................27
Award......................................................................29
Building.....................................................................2
Building Applications.......................................................25
Building Structure...........................................................9
business days...............................................................55
children.....................................................................5
Commencement Date...........................................................1
Comparable Buildings........................................................17
consideration...............................................................52
Consultative Period.........................................................15
Date of the Taking..........................................................29
domestic institutional lender...............................................18
Easements Agreement..........................................................1
Event of Default...........................................................30
Excusable Delays............................................................53
Expedited Arbitration.......................................................49
Expiration Date..............................................................2
Failing Party...............................................................11
Fair Rental Value...........................................................12
Financial Test.............................................................15
First Mortgage..............................................................44
First Refusal Notice.........................................................4
First Refusal Right..........................................................4
first-class.................................................................13
Hazardous Materials.........................................................50
(vi)
▇▇▇........................................................................59
▇▇▇ Financing...............................................................59
Initial Capital Improvement Amount...........................................8
Initial Term.................................................................2
initially named Landlord herein..............................................7
initially named Tenant herein................................................3
Ise Sublease................................................................56
Land.........................................................................2
Land Owner...................................................................6
Landlord.....................................................................1
Landlord's Mortgagee........................................................45
Landlord's Offer.............................................................3
▇▇▇▇▇▇▇▇....................................................................43
Lease.......................................................................1
Lease Expiration............................................................13
Lease Termination...........................................................13
Letter of Credit............................................................44
LLC..........................................................................5
LPC.........................................................................40
▇▇▇▇.......................................................................43
▇▇▇▇▇▇▇▇....................................................................43
Minimum Net Worth...........................................................36
Mortgage....................................................................45
mortgageable lease..........................................................18
NDA.........................................................................37
New Contract.................................................................4
Notices.....................................................................41
Option Exercise Date.........................................................2
person......................................................................53
Premises.....................................................................2
Prime Rate..................................................................53
Prior Lease..................................................................1
proceeds...................................................................52
Property.....................................................................3
Prospective Purchaser.....................................................4, 6
Purchase Contract............................................................4
purchase price...............................................................5
Purchaser Information........................................................5
Pursuing Party.............................................................11
Real Estate Taxes...........................................................10
Reimbursable Capital Improvements............................................8
Renewal Option...............................................................2
Renewal Term.................................................................2
(vii)
rent........................................................................55
rental.....................................................................55
Restoration Standard........................................................13
sale.........................................................................5
Scholastic...................................................................6
Second Capital Improvement Amount............................................8
sell.........................................................................5
SNDA.......................................................................45
Structural Alterations......................................................24
Successor Corporation........................................................3
Successor Landlord..........................................................47
Tax Protest.................................................................11
Tax Year....................................................................12
Tenant.......................................................................1
Tenant's 557 Interest.......................................................7
Tenant's Letter of Credit...................................................57
Tenant's Renewal Notice......................................................2
Tenant's separate claim items...............................................29
term of this Lease...........................................................8
Threshold Rental............................................................38
Use and Character Criteria.................................................36
(viii)
AMENDED AND RESTATED LEASE
THIS AMENDED AND RESTATED LEASE (hereinafter, the "Lease" or this
"Lease"), effective as of August 1, 1999 (the "Commencement Date"), amends and
restates in its entirety the existing lease, dated as of January 28, 1992,
amended by Amendment of Lease dated as of April 1, 1993 (which was clarified by
letter dated May 5, 1995, from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. to ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇ of Ise Hiyoko, Inc.), Second Amendment of Lease dated as of August 24,
1995, and Memorandum of Agreement dated August 25, 1995 (the lease as so amended
prior to this amendment and restatement is referred to herein as the "Prior
Lease"), by and between ISE HIYOKO, INC., a Japanese corporation, predecessor in
interest to ISE 555 BROADWAY, LLC, a New York limited liability company, having
an office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter, "Landlord"),
and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., a New York corporation, with an office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Tenant").
PREAMBLE
The parties hereto acknowledge that, notwithstanding the amendment and
restatement hereby, the Prior Lease was effective in accordance with its terms
up to the Commencement Date of this Lease. The parties further acknowledge that,
as of the Commencement Date of this Lease, there are no outstanding notices of
default nor, respectively, to the best knowledge of each party, any act or
omission of either party which, with notice or lapse of time or both, would be a
default under the Prior Lease. Landlord (on behalf of Landlord and Landlord's
predecessor in interest) releases Tenant, and Tenant releases Landlord and
Landlord's predecessor in interest, from any and all claims, losses,
liabilities, damages and obligations arising prior to the Commencement Date of
this Lease under or in connection with the Prior Lease. The parties hereto also
acknowledge that the Property is encumbered by an Amended and Restated Easements
Agreement dated as of August 1, 1999, among Landlord, Tenant, and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Noma ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇) and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇) (collectively, the "557 Landlord")
(such agreement, as it may be amended and/or restated from time to time, the
"Easements Agreement"), which Easements Agreement amends and restates in its
entirety the easements agreement dated as of July 10, 1998, recorded on August
26, 1998, in Reel 2689, Page 00792.
ARTICLE ONE
LEASE OF PREMISES
Section 1.01. Lease of Premises. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, upon and subject to the covenants,
agreements, terms, provisions and
conditions of this Lease, for the term and at the rent hereinafter stated, the
entire building known as ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, presently constructed
on the land (the "Land") described in Exhibit A attached hereto, together with
all fixtures, equipment, improvements, installations and appurtenances which at
the Commencement Date or during the term of this Lease are attached to or used
in connection with access to or the operation of the building (the building and
such fixtures, equipment, improvements, installations and appurtenances are
herein referred to as the "Building" or the "Premises").
ARTICLE TWO
TERM
Section 2.01. Initial Term. The initial term of this Lease (the "Initial
Term") shall commence on the Commencement Date, and shall consist of a period of
thirty (30) years, and expire on July 31, 2029 (the "Expiration Date"), or on
such earlier date on which the term of this Lease may expire or be terminated
pursuant to the provisions of this Lease or pursuant to law, or on such later
date on which the term of this Lease may expire pursuant to Subsection 2.02(a)
hereof.
Section 2.02. Renewal Term. (a) Provided that there shall not then exist
an uncured "Event of Default" (as such term is defined in Article 13 below) on
the date Tenant delivers Tenant's Renewal Notice (hereinafter defined) to
Landlord, Tenant shall have the option (the "Renewal Option") to renew the term
of this Lease for one renewal term (the "Renewal Term"), for ten (10) years. The
Renewal Option for the Renewal Term shall be exercised by written notice from
Tenant to Landlord (the "Tenant's Renewal Notice") to the effect that Tenant
desires to renew the term of this Lease, to be given not later than two years
prior to the Expiration Date of the Initial Term ("Option Exercise Date"). If
Tenant shall fail to give Tenant's Renewal Notice to Landlord on or before the
Option Exercise Date, then the Renewal Option shall not lapse and Landlord shall
not enter into a lease(s) for the Premises or any portion thereof for any period
after the expiration of the Initial Term, unless (i) Landlord shall have given
Tenant written notice that Tenant has not exercised Tenant's right to extend the
term of this Lease, and (ii) an additional period of fifteen (15) business days,
during which additional period Tenant may exercise such right to extend the term
of this Lease, has elapsed from receipt of such notice by Tenant. If Tenant
shall not have exercised the Renewal Option prior to the expiration of said
fifteenth (15th) business day, then Tenant's right to extend the Initial Term
shall be deemed to have been waived. The Renewal Term shall be on the same
covenants, agreements, terms, provisions and conditions as are contained herein,
except as expressly provided herein to the contrary. The rent payable during the
Renewal Term shall be as provided in Section 4.04. If Tenant fails to exercise
effectively its Renewal Option (and the Renewal Term does not become effective),
then the Lease shall terminate on the original Expiration Date as herein
provided.
-2-
(b) At any time after the Renewal Term has become effective and the
rent payable during the Renewal Term determined, Landlord and Tenant, upon
request of either, shall execute an agreement supplementary hereto identifying
the Annual Rental payable during the Renewal Term.
(c) For all purposes under this Lease, the term "initially named
Tenant herein" shall be deemed to refer only to: (i) the corporate entity which
is ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. (whether or not known by or using such name), (ii) any
"Successor Corporation" (defined below), and (iii) any Affiliate of ▇▇▇▇▇▇▇▇▇▇
▇▇▇. or of a Successor Corporation. The term "Successor Corporation" shall be
deemed to refer to and include any entity which (x) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. is merged
into or consolidated with, or (y) acquires all or substantially all of the
assets or stock of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. From and after the date on which an entity
qualifies hereunder as a Successor Corporation, such entity shall, as applicable
under this Lease, be deemed to be ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. Within sixty (60) days
following the occurrence of any transaction which Tenant believes results in the
existence of a Successor Corporation, Tenant shall give Landlord notice thereof.
If, within sixty (60) days following receipt of such notice, Landlord shall
request evidence to support Tenant's determination that such transaction has
resulted in the existence of a Successor Corporation, Tenant shall promptly
furnish Landlord with such evidence. Without limiting the nature of what
constitutes acceptable evidence, Landlord agrees that the opinion letter of an
independent attorney or the certified statement of an independent certified
public accountant to the effect that such transaction resulted in the existence
of a Successor Corporation shall be deemed presumptive evidence of the same.
Section 2.03. Right of First Offer. (a) Provided that: (i) Tenant is not
in default under this Lease after expiration of all applicable notice and cure
periods, and (ii) the initially named Tenant herein is then in occupancy of at
least 102,500 rentable square feet in the Building, the initially named Tenant
herein shall have and is hereby granted a right of first offer to purchase the
Building and the Land (the Land and Building being collectively referred to
herein as the "Property") from Landlord as hereinafter provided.
(b) Prior to making or accepting an offer to sell all or any portion
of the Property, including the creation and sale of all or any portion of a
ground leasehold interest in the Land, to any third party, Landlord shall submit
to Tenant a written statement ("Landlord's Offer") setting forth all of the
material terms and conditions (including the purchase price, terms of any
purchase money or other financing and all other material terms) pursuant to
which Landlord shall in good faith intend to offer to sell all or any portion of
the Property. Within sixty (60) days after Tenant shall have received Landlord's
Offer, Tenant shall give Landlord written notice of whether or not Tenant
desires to accept Landlord's Offer. If Tenant elects to accept Landlord's Offer,
Landlord and Tenant shall within thirty (30) days thereafter execute and deliver
a contract of sale which reflects the terms of Landlord's Offer and which is
otherwise consistent with contracts for the sale of like property in the Borough
of Manhattan in the City of New York. If Tenant elects not to accept Landlord's
Offer, or if Tenant shall not have responded to Landlord's Offer prior to the
expiration of said sixty (60) day period, then Landlord may thereafter proceed
to sell the Property
-3-
(or the portion thereof specified in Landlord's Offer) in accordance with the
terms and conditions contained in the Landlord's Offer delivered to Tenant,
provided that: (i) if, within twelve (12) months after the date on which
Landlord shall have given Landlord's Offer to Tenant, Landlord shall not
consummate the sale of the Property (or the portion thereof described in
Landlord's Offer) to an "Acceptable Purchaser" (defined below) on such terms and
conditions as provided in Landlord's Offer (it being agreed for the purposes
hereof that, if the purchase price of the Property set forth in the Purchase
Contract (defined below) shall be equal to at least ninety-six (96%) percent of
the purchase price set forth in Landlord's Offer, then both purchase prices
shall be deemed the same), then Landlord shall again be required to comply with
the provisions of this Section 2.03 and offer to sell the Property (or the
relevant portion thereof) to Tenant on all of the same terms and conditions upon
which Landlord intends to sell the Property (or the relevant portion thereof) to
a third party; or (ii) if, within said twelve (12) month period, Landlord and a
prospective purchaser (the "Prospective Purchaser") have entered into a contract
of sale (the "Purchase Contract") and are prepared and (subject to the
provisions of this Section 2.03) ready, willing and able to consummate a sale of
the Property (or the portion thereof described in Landlord's Offer), and (x)
such Prospective Purchaser is not an Acceptable Purchaser or (y) the purchase
price of the Property (or the portion thereof described in Landlord's Offer) set
forth in the Purchase Contract is less than the purchase price set forth in
Landlord's Offer by an amount which is equal to four (4%) percent or more of the
purchase price set forth in Landlord's Offer, then Landlord shall promptly give
Tenant notice thereof (the "First Refusal Notice") together with a fully
executed original of the Purchase Contract and the "Purchaser Information"
(defined below), the "New Contract" (defined below) and Landlord's determination
as to whether the Prospective Purchaser is an Acceptable Purchaser, and Landlord
shall not have the right to consummate such sale to the Prospective Purchaser
unless and until Tenant shall fail to timely exercise the First Refusal Right
hereinafter set forth.
(c) Upon the occurrence of either of the events set forth in clause
(x) or clause (y) of the foregoing Subsection 2.03(b), Tenant shall have the
right (the "First Refusal Right") to purchase the Property (or the portion
thereof described in Landlord's Offer) on the same terms and conditions made
available to the Prospective Purchaser pursuant to the Purchase Contract.
Subject to the provisions of Subsection 2.02(g) below, the First Refusal Right
shall be exercisable only in the following manner. If Tenant shall elect to
exercise the First Refusal Right, then, within thirty (30) days following
delivery to Tenant of the First Refusal Notice, the Purchase Contract, the
Purchaser Information and the New Contract, Tenant shall notify Landlord that
Tenant wishes to exercise the First Refusal Right and execute and deliver to
Landlord the New Contract, along with any downpayment or monies payable pursuant
thereto upon the execution thereof by the Prospective Purchaser under the
Purchase Contract, and any documents or other items required to be delivered in
accordance therewith, time being of the essence with respect to the delivery
thereof, or be deemed to have waived the First Refusal Right. For purposes
hereof, the "New Contract" shall mean a contract of sale, executed by Landlord
(as seller) which is identical to the Purchase Contract, except for changes in
the name, address and reference to the purchaser (revised to reflect Tenant, as
purchaser), and any other changes which are necessary or appropriate to reflect
the fact that Tenant is the contract vendee, as opposed to
-4-
the purchaser named in the Purchase Contract. Following full execution of the
New Contract, Landlord and Tenant shall consummate the transaction contemplated
thereby in accordance with the terms of the New Contract. In no event shall
Tenant be obligated to pay to Landlord any "break-up" or similar fee, or
reimburse Landlord for any costs (including brokerage fees) incurred by
Landlord, regardless of whether Landlord is obligated to pay any fee to, or
reimburse the expenses of, the Prospective Purchaser in connection with Tenant's
exercise of the First Refusal Right.
(d) The term "Acceptable Purchaser" shall be deemed to refer to any
person or any Affiliate of such person who owns at least one other rental office
building in any urban area of the United States, unless such person (or any
Affiliate of such person): (i) has ever been convicted of any felony, or (ii)
has been indicted on any felony charge during the five (5) years preceding the
execution of the Purchase Contract, or (iii) has been the subject of any
voluntary or involuntary bankruptcy, insolvency, reorganization or similar
proceedings of the type described in Section 14.01 below during the five (5)
years preceding the execution of the Purchase Contract (provided that, in the
case of an involuntary proceeding, the same shall not have been dismissed within
one hundred twenty (120) days after the commencement of such proceeding), or
(iv) is a publisher of any books, magazines, other reading matter or computer
software designed primarily for children or to educate children (it being
understood and agreed that, for the purpose hereof, the term "children" includes
all ages below adult, i.e., from infant through teenager), or (v) has at least
ten (10%) percent of its consolidated sales generated from publishing of any
kind, or (vi) has or operates under a name which is commonly associated with the
publishing industry. Within ten (10) days following the execution of any
Purchase Contract, and regardless of whether Landlord believes that the
Prospective Purchaser is an Acceptable Purchaser, Landlord shall furnish to
Tenant such information (the "Purchaser Information") as shall enable Tenant to
determine whether the Prospective Purchaser is an Acceptable Purchaser. If
Tenant shall, in good faith, dispute Landlord's determination that the
Prospective Purchaser is an Acceptable Purchaser, and Landlord and Tenant shall
be unable to resolve such dispute within ten (10) days after Tenant receives the
Purchaser Information, then the determination as to whether the Prospective
Purchaser is an Acceptable Purchaser shall be determined by arbitration in the
manner provided in Article 26 below. Pending resolution of such dispute,
Landlord shall not be permitted to consummate the sale contemplated by the
Purchase Contract and Tenant shall not be permitted to exercise the aforesaid
First Refusal Right.
(e) For the purposes of this Section 203: (i) all references to
"purchase price" shall be deemed to refer to the actual purchase price as
adjusted to reflect the economic value of all material business terms contained
in the Landlord's Offer and Purchase Contract, as the case may be; (ii) the
terms "sell" and "sale" shall include any and all leases (other than space
leases), or the creation of a ground leasehold estate in the property, or
conveyances of any fee, leasehold or lesser interest(s) in all or any part of
the Property, but shall not include one or more conveyances of stock of a
corporate Landlord or partnership interests of a partnership Landlord or
membership interest in a limited liability company ("LLC") Landlord which do
not, in the aggregate, (x) exceed forty-nine and ninety-nine one-hundredths of
one (49.99%) percent of such
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stock or (general or limited) partnership interests, or membership interests or
(y) yield control of said corporate, partnership or LLC Landlord to any person
other than Mr. Hikonobu Ise (provided, however, that, if said stock shall be
conveyed to a corporation or a "master limited partnership" which has its shares
traded on a public exchange, and Tenant shall have elected not to exercise the
First Refusal Right with respect thereto, then any subsequent conveyances of
such publicly traded stock or shares shall not be deemed a "sale" for the
purposes of this Section 2.03); and (iii) the term "Prospective Purchaser" shall
not be deemed to include any Affiliate of Landlord, provided that (x) such
Affiliate shall not have become an Affiliate of Landlord for the purpose of
circumventing Tenant's rights under this Section 2.03, and (y) such Affiliate
shall continue to be an Affiliate of Landlord for at least one (1) year
following consummation of the sale.
(f) Tenant's rights to purchase the Property as set forth in this
Section 2.03 shall be contained in the memorandum of this Lease described in
Section 31.03.
(g) Supplementing the provisions of Subsection 2.03(c) above, it is
the intention of the parties that, if Landlord shall create a ground leasehold
estate in the Property, and shall (then or thereafter) sell the Land (i.e., the
fee portion of the Property) to any third party (after Tenant shall have
declined to purchase the Land under the terms of Subsections 2.03(b) and (c)
above), then, if Landlord shall thereafter desire to sell the Building or ground
lease to such third party (or any successors, assigns or Affiliates of such
third party; collectively, the "Land Owner") and if Tenant shall exercise
Tenant's rights pursuant to this Section 2.03 to purchase the Building, then
Tenant shall thereafter have the option to purchase the Land from the Land Owner
at the then prevailing fair market value thereof (determined, in the event of a
dispute, in accordance with the provisions of Article 26 below). Such option
shall be exercisable in the following manner. Within thirty (30) days following
(i) Landlord having given notice to Tenant that Landlord intends to sell the
Building or ground lease to the Land Owner (and provided that such notice
correctly identifies the name and address of the Land Owner), and (ii) Tenant's
exercise of such option to purchase the Building under this Section 2.03, Tenant
shall notify Landlord and the Land Owner whether Tenant desires to exercise said
option to purchase the Land. Failure by Tenant to give such notice to Landlord
and the Land Owner within said time period shall be deemed a waiver by Tenant of
such option to purchase the Land. If Tenant shall elect to exercise such option,
then, within thirty (30) days following agreement or a determination of the fair
market value of the Land, Tenant and the Land Owner shall execute and exchange a
contract of sale which reflects the agreed upon or determined purchase price,
and which is otherwise consistent with contracts for the sale of like property
in Manhattan. In order to bind the Land Owner to the terms of the foregoing
option, Landlord agrees that Landlord shall include the following sentence in
any deed or other instrument which is required to be recorded in order to effect
a sale of the Land: "If the Grantor [i.e., Landlord], or its successors and
assigns, shall at any time hereafter (during the term of that certain lease (the
"Lease") dated as of August 1, 1999, as such term may be extended or renewed,
between Ise ▇▇▇ ▇▇▇▇▇▇▇▇, LLC, as landlord, and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ("Scholastic"),
as tenant, of the premises [i.e., ▇▇▇ ▇▇▇▇▇▇▇▇]) sell, be required to sell or
accept an offer to sell all or any portion of the Grantor's rights, title and
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interest to that certain building located on the premises, or any ground lease
of the premises, to the Grantee [i.e., said third party purchaser], or its
successors, assigns or affiliates, then the Grantee, or such successors, assigns
or affiliates, shall be required to sell the premises to Scholastic, or its
successors and assigns, for the then current fair market value thereof, subject
to, however, and in accordance with the applicable procedures set forth in
Section 2.03 of the Lease."
(h) In the event that Tenant exercises its right to purchase all or
any part of the Property as set forth in this Section 2.03 or Tenant otherwise
desires to purchase all or any part of the Property, in either case at any time
during which the Property is subject to a Mortgage and after the earlier of (i)
four (4) years after the date of the Mortgage, and (ii) two (2) years after the
date of securitization of the loan secured by the Mortgage, and Tenant does not
wish to purchase the Property subject to the Mortgage, then Landlord on behalf
of Tenant, at Tenant's request and at Tenant's cost, shall cause the release of
the Property from the lien of the Mortgage and other Loan Documents (as such
term is defined in the Mortgage) in the manner set forth in the Mortgage.
Section 2.04. 557 Property Right of First Offer. (a) If (x) the initially
named Landlord herein (as defined below) is then the owner of the Building, (y)
the 557 Building (as hereinafter defined) shall have been constructed, and (z)
the initially named Tenant herein shall have obtained permanent financing for
the 557 Building, then the initially named Landlord herein shall have and is
hereby granted a right of first offer (the "557 Right of First Offer") to
purchase such right, title and interest (whether leasehold or fee or options to
acquire any interest in the fee) of the initially named Tenant herein as the
initially named Tenant herein may then own ("Tenant's 557 Interest") in and to
the parcel of land described on Exhibit B attached hereto (the "557 Land") and
the building to be constructed on the 557 Land (the "557 Building"; the 557 Land
and the 557 Building being collectively referred to herein as the "557
Property") from the initially named Tenant herein as hereinafter provided.
(b) The procedure for granting and exercising the 557 Right of First
Offer shall be in accordance with the terms and provisions of Section 2.03
hereof, with the terms therein being used, mutatis mutandis, provided, however,
that (i) any sale of all or any portion of Tenant's fee interest in and to the
557 Property and any subsequent sale thereof shall be subject to the terms and
conditions of the Option Agreement dated as of October 9, 1996, by and between
each of the individuals comprising the 557 Landlord, as optionors, and Tenant,
as optionee, and (ii) the concept of "Acceptable Purchaser" as used in Section
2.03 hereof, and all rights of first refusal in connection with the concept of
"Acceptable Purchaser", shall not be applicable to the 557 Right of First Offer.
(c) For all purposes under this Lease, the term "initially named
Landlord herein" shall be deemed to refer only to: (i) the entity which is ISE
▇▇▇ ▇▇▇▇▇▇▇▇, LLC (whether or not known by or using such name), (ii) any
"Successor Corporation" (with such term being used,
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mutatis mutandis), and (iii) any Affiliate of ISE 555 Broadway, LLC or of a
Successor Corporation.
(d) Landlord's rights to purchase Tenant's 557 Interest as set forth
in this Section 2.04 shall be contained in a memorandum or other document (the
"557 Document") which, at Landlord's expense, may be filed and recorded of
record against the 557 Property.
(e) Landlord and Tenant shall instruct their respective counsel to
negotiate the 557 Document in good faith. If the parties are unable to agree
upon the form of the 557 Document by December 31, 1999, or such later date as
the parties shall agree upon, either party may submit the matter to
determination by arbitration pursuant to Article 26 hereof.
Section 2.05. Term of this Lease. The phrase "term of this Lease" shall
mean the Initial Term and (if applicable) the Renewal Term.
ARTICLE THREE
DELIVERY OF PREMISES
Section 3.01. Delivery of Premises. Tenant acknowledges that it has
possession of the Building on the Commencement Date and Tenant accepts such
possession in its present "as is" condition with whatever patent or latent
defects may exist. Tenant specifically acknowledges that, except as otherwise
provided in Section 3.03 hereof, Landlord has no obligations to Tenant arising
out of the present or prior condition of the Building, including, without
limitation, the possible existence of any asbestos in any part of the Building.
As between Landlord and Tenant, Tenant agrees that currently existing violations
of law, violations hereafter arising, or latent or patent defects in the
Building are Tenant's responsibility, whether or not any such condition is the
result of Landlord's neglect, negligence or failure to perform any obligation
that may have existed prior to the Commencement Date of this Lease.
Section 3.02. Subtenancies. Tenant represents that as of the Commencement
Date it is in physical occupancy of the entire Building except for space
subleased to its subtenants under written leases, counterparts of which have
been delivered to Landlord and are identified on Schedule 1 attached hereto.
Section 3.03. Capital Improvement Funds.
(a) Notwithstanding anything to the contrary in this Lease, Landlord
agrees to give Tenant, upon the commencement of this Lease, $1,601,134 (the
"Initial Capital Improvement Amount") which amount shall be used by Tenant only
to pay for the cost of capital improvements to the Building systems and/or the
Building Structure (as hereinafter defined) made after the date hereof and/or
the cost of any capital improvements or replacements made
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after the date hereof which are necessary or required to enable Tenant, upon the
expiration or earlier termination of the term of this Lease, to return the
Building to Landlord in compliance with the Restoration Standard, as set forth
in Section 5.01 hereof, and shall not be used by Tenant for any other purposes
(the foregoing uses are hereinafter referred to as "Reimbursable Capital
Improvements"). In addition, Landlord agrees to give to Tenant, on or before
July 1, 2014, $1,750,000 (the "Second Capital Improvement Amount") to pay for
Reimbursable Capital Improvements to the Building made either before or after
July 1, 2014. Tenant shall deliver to Landlord receipts and invoices for all
work paid for with the Initial Capital Improvement Amount and the Second Capital
Improvement Amount; it being agreed, however, that the foregoing requirement
shall not be a condition to Landlord's obligation to pay the aforesaid amounts
to Tenant. Such receipts and invoices shall describe the improvements completed
in sufficient detail to establish that such improvements qualified as
Reimbursable Capital Improvements. "Building Structure" means the foundation,
footings, roof, exterior walls and load-bearing walls and columns of the
Building, the floors and ceilings in the Building, and core stairs, elevators,
exterior windows, exterior plate glass, window ▇▇▇▇▇ and sashes in the Building.
(b) Without in any way limiting any remedies as Tenant may have at
law in equity, except that Tenant shall not be permitted to terminate this Lease
due to any violation by Landlord of this Subsection 3.03(b), if Landlord shall
fail to pay any portion of the Initial Capital Improvement Amount and the Second
Capital Improvement Amount when due hereunder, then thirty (30) days after
notice to Landlord, Tenant shall have the right to offset any such unpaid
amount(s), together with interest thereon, from the date when such amount(s)
first came due until the date that the same are fully offset by Tenant or paid
to Tenant, at an annual rate equal to the Prime Rate against first rentals then
due or thereafter coming due under this Lease.
ARTICLE FOUR
RENTAL
Section 4.01. Annual Rental. (a) Tenant shall pay to Landlord, as rent,
without any abatement, setoff or deduction for any reason whatsoever, except as
set forth herein, annual base rental (the "Annual Rental") by wire transfer of
immediately available federal funds, to the account of Landlord in accordance
with wire instructions delivered by Landlord to Tenant by separate letter or to
such other account as Landlord may, by notice, instruct, or, provided that
Landlord shall give Tenant not less than ten (10) business days written notice
thereof, by check payable to Landlord at Landlord's office in the New York City
metropolitan area, as set forth on Schedule 2.
From and after the Commencement Date, the Annual Rental shall be payable
in twelve (12) equal monthly installments, in advance, on the first business day
of each calendar month, the first such payment being due and payable on the
Commencement Date. A prorated monthly
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installment shall be paid if the Commencement Date is other than the first day
of a calendar month or if the term of this Lease terminates on a day other than
the last day of a calendar month.
(b) If any of the Annual Rental and/or Additional Rent shall be or
become uncollectible, reduced or required to be refunded because of any act or
law enacted by a governmental authority in the nature of "rent control" or
similar rent restriction, Tenant shall enter into such agreement(s) and take
such other steps (without additional expense to Tenant) as Landlord may
reasonably request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of such
legal rent restriction may be legally permissible (but not in excess of the
amounts reserved therefor under this Lease). If such legal rent restriction
shall be terminated during the term of this Lease, (x) the Annual Rental and/or
Additional Rent shall become and thereafter be payable in accordance with the
amounts reserved herein for the periods following such termination, and (y)
Tenant shall pay to Landlord within thirty (30) days after being billed
therefor, to the maximum extent legally permissible, an amount equal to (i) the
Annual Rental and/or Additional Rent which would have been paid pursuant to this
Lease but for such legal rent restriction, less (ii) the rents paid by Tenant
during the period such legal rent restriction was in effect.
(c) All amounts payable by Tenant to Landlord pursuant to this
Lease, including, without limitation, Annual Rental and Additional Rent (as
hereinafter defined), shall be deemed to be rent, and Tenant's failure to pay
same shall be considered a failure to pay rent hereunder and Landlord shall be
entitled to all rights and remedies provided herein or by law in connection
therewith.
(d) Except as expressly set forth herein, Tenant shall be permitted
to make payments of Additional Rent, if to Landlord, by check, at the office of
Landlord first set forth above, or elsewhere in the New York City metropolitan
area as directed from time to time by Landlord's written notice to Tenant.
Section 4.02. Net Lease. This Lease shall be deemed and construed to be a
"net lease", and Tenant shall pay to Landlord the Annual Rental free of any
charges, assessments, impositions or deductions of any kind, and without
abatement, deduction or set-off (except as set forth herein), and Landlord shall
not be required to make any payment of any kind or be under any other obligation
hereunder, except as otherwise provided elsewhere in this Lease.
Section 4.03. Real Estate Taxes. (a) "Real Estate Taxes" shall mean (i)
any and all real estate taxes, assessments and any special assessments, sewer
rent and water charges, municipal taxes, county taxes, school taxes or any other
governmental charge, general or special, ordinary or extraordinary, of any
nature, that are or may be assessed, levied or imposed upon all or any part of
the Land and/or the Building, giving effect to any abatements, refunds,
reductions, credits and the like, and (ii) all taxes assessed or imposed with
respect to the rentals payable hereunder other than general income and gross
receipts taxes, but excluding any and all transfer, income, franchise,
corporate, estate, inheritance, succession, gifts, gains, capital stock or
recording taxes
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levied on Landlord or the holder of any mortgage affecting the Land or Building.
If at any time during the term of this Lease the methods of taxation prevailing
on the date hereof shall be altered so that in lieu of, or as a substitute for
or addition to, the whole or any part of such real estate taxes, assessments and
special assessments now imposed on real estate, there shall be levied, assessed
or imposed (x) a tax, assessment, levy, imposition, license fee or charge as a
capital levy or otherwise on the rents received therefrom, or (y) any other
substitute or additional tax, assessments, levies, impositions, fees or charges,
then the same shall be deemed to be included within the term "Real Estate Taxes"
for the purposes hereof, but only if, in any such cases, it shall then be
customary that office space of 75,000 or more rentable square feet leases in
first-class Manhattan office buildings shall include the same in Real Estate
Taxes (unless such inclusion shall be due to such leases having been executed at
times when market conditions favored landlords or owners of such buildings).
(b) Tenant shall pay all Real Estate Taxes levied or assessed
against the Property or any part thereof when due and payable and prior to the
time that any penalty or interest may be charged in respect of the nonpayment
thereof, and shall obtain receipted tax bills therefor.
(c) Tenant shall pay to the appropriate taxing authority all Real
Estate Taxes on or prior to their respective due dates. If the Commencement Date
or the Expiration Date shall be a day other than the first day or last day,
respectively, of a Tax Year, then Tenant's Real Estate Tax obligation with
respect to such Tax Year shall be pro-rated in accordance with the number of
days during such Tax Year which occur within the term of this Lease.
(d) (i) Landlord hereby grants and assigns to Tenant all rights
Landlord may have to apply for correction, or petition for reduction, of the
assessed valuation of the Building and the Land, to claim and obtain a refund of
Real Estate Taxes or otherwise challenge the validity or applicability of any
real estate tax, assessment or similar or related charge or law (any such
application, petition, claim of refund or challenge, a "Tax Protest"). Tenant
shall have the right (except as set forth in 4.03(d)(ii) below), to accept or
reject any proposed settlement or compromise of any such Tax Protest during any
phase or stage thereof, and to determine whether to appeal from, or in any
manner challenge, a denial of any such Tax Protest. Landlord shall fully and
timely cooperate with Tenant in the prosecution of any and all Tax Protests and,
in connection therewith, Landlord shall execute all such petitions,
applications, pleadings or other documentation prepared and/or filed in
connection with a Tax Protest as Tenant may reasonably require (including,
without limitation, a Real Property Income and Expense statement), and shall
make available to Tenant any material and information in Landlord's possession,
custody or control relating to the cost of the Building, and any improvements
made thereon, the income derived from the operation thereof, financing
arrangements and any other facts Tenant may reasonably require. Tenant agrees
that the provisions of the foregoing sentence shall not be construed so as to
require Landlord to execute any documents which are inaccurate, not in the
proper form, or not reasonably necessary (from a legal, practical or knowledge
standpoint) to prosecute such Tax Protest.
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(ii) During the last two (2) years of the Initial Term (if
Tenant has not exercised its Renewal Option) or of the Renewal Term, the grant
and assignment referred to in Subdivision 4.03(d)(i) above shall not be
applicable except as otherwise set forth in Subdivision 4.03(d)(iii) below. If
Landlord shall be the party prosecuting a Tax Protest, Landlord shall have all
the rights with respect to the Tax Protest which would have been provided to
Tenant pursuant to Subdivision 4.03(d)(i) had Tenant prosecuted the Tax Protest,
and Tenant shall fully and timely cooperate with Landlord in the prosecution of
the Tax Protest in the manner and to the extent set forth for Landlord in
Subdivision 4.03(d)(i) above.
(iii) Notwithstanding anything to the contrary contained in
this Subsection 4.03(d), if the party which has the initial control of the right
to apply for a Tax Protest pursuant to Subdivision 4.03(d)(ii) shall not have
done so prior to the thirtieth (30th) day before the last day for filing a
timely Tax Protest, and thereafter fails to do so within ten (10) days following
a written demand therefor (hereinafter the "Failing Party") by the other party,
then such other party (hereinafter the "Pursuing Party") shall have the right to
do so; provided, however, that if, as a result of a Tax Protest filed by the
Pursuing Party, there shall be an increase or a reduction or refund in Real
Estate Taxes, the Pursuing Party shall be solely responsible for the payment of
such increase and shall obtain the benefit of the reduction or refund. If the
Landlord is the Pursuing Party the Tenant shall pay to Landlord the amount of
such reduction or refund.
(e) "Tax Year" shall mean every twelve (12) consecutive month
period, all or any part of which occurs during the term of this Lease,
commencing each July 1 or such other date as shall be the first day of the
fiscal tax year of The City of New York.
Section 4.04. Renewal Rental. (a) (i) The Annual Rental for the Renewal
Term shall be the greater of ninety (90%) percent of the Fair Rental Value
(hereafter defined) or the Annual Rental in effect for the year preceding the
first year of the Renewal Term.
(ii) Additional Rent shall be payable for the Renewal Term on
the same basis as during the Initial Term.
(iii) Within fifteen (15) days after Tenant shall have given
Landlord Tenant's Renewal Notice (but not earlier than two years prior to the
end of the Initial Term), Landlord shall notify Tenant of Landlord's
determination of the Fair Rental Value for the Renewal Term. If Tenant shall
disagree with Landlord's determination of the Fair Rental Value, then Tenant,
within thirty (30) days after having received Landlord's notice, shall notify
Landlord (x) that Tenant disputes Landlord's determination and (y) of Tenant's
determination of the Fair Rental Value. If Landlord and Tenant shall be unable
to agree upon the Fair Rental Value within twenty (20) days after Tenant
notifies Landlord that Tenant disputes Landlord's determination, then either
party may immediately or at any time thereafter submit the dispute to determine
the Fair Rental Value to arbitration in the manner provided in Article 26.
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(b) The term "Fair Rental Value" shall mean the base annual rental
which a willing bona fide third party tenant would pay at the time in question
to a willing bona fide landlord for a lease for the Renewal Term in its then
condition and state of repair (except that any improvements installed at the
sole cost and expense of Tenant shall be considered only to the extent that such
improvements shall be deemed by the arbitrator to have economic value to a new
tenant), on the same terms, covenants and conditions as are contained in this
Lease, and considering, in particular, the facts that (i) no rent concessions or
work allowances are to be granted or paid by Landlord, (ii) Landlord shall not
incur any brokerage fees in connection with the leasing of the Premises to
Tenant for the Renewal Term, and (iii) Tenant pays directly for all taxes and
operating expenses from the first dollar.
(c) If for any reason the Fair Rental Value shall not have been
determined prior to the commencement of the Renewal Term, then, from the
commencement of the Renewal Term until the Fair Rental Value, and, accordingly,
the Annual Rental, shall have been finally determined, Tenant shall pay Annual
Rental at the rate of the average of the Landlord's and Tenant's proposed rent
per annum. Upon such final determination and within thirty (30) days after
demand therefor, Tenant shall pay to Landlord any deficiency from the
commencement date of the Renewal Term to the date of such final determination,
or, if Tenant shall have overpaid, Landlord shall refund to Tenant any
overpayment, with such deficiency or refund payments to bear interest computed
at the Prime Rate from the date of such deficiency or overpayment until the day
that the deficiency or refund payment is made by Landlord or Tenant (as the case
may be).
Section 4.05. Certain Offset Rights. In the event (i) Landlord fails to
pay Tenant any amount owed to Tenant pursuant to Subsections 4.03(d)(iii),
5.03(c) or 8.01(c) of this Lease, (ii) an arbitrator has decided in favor of
Tenant with respect to such disputed amount, and (iii) Landlord has failed to
pay such amount for fifteen (15) days after the date of the arbitrator's
determination, Tenant shall have the right to offset the amount owed Tenant
against the Annual Rental and Additional Rent then due or thereafter coming due
under this Lease. In addition, if the amount owed to Tenant pursuant to
Subsections 4.03(d)(iii), 5.03(c) or 8.01(c) of this Lease does not include
interest thereon at the Prime Rate, then Tenant shall also have the right to
offset interest on the declining balance of such amount at the Prime Rate from
the date such amount should have been paid to Tenant until such interest is
fully offset by Tenant or fully reimbursed to Tenant.
ARTICLE FIVE
OPERATIONS AND MAINTENANCE
Section 5.01. Standard of Operations. (a) Tenant covenants to operate and
maintain the Building so that upon the expiration of the Lease the Building will
be returned to Landlord in a condition meeting the "Restoration Standard" as
herein defined.
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(b) "Restoration Standard" means that at the expiration or earlier
termination of the term of this Lease ("Lease Expiration" or "Lease
Termination") the Building will be returned to Landlord in its then "as is"
condition provided that: (i) it is not in a state of disrepair, and (ii)
considering the nature of Tenant's use of the office space as its corporate
headquarters, it has been maintained in a "first-class" manner as hereinafter
defined.
(c) "first-class" means that: (i) no maintenance has been deferred;
(ii) maintenance has been performed on a regular basis in accordance with
industry standards in the operation and maintenance of buildings similar to the
Building in age, size and use in Soho; and (iii) to the extent that the
requirements of (i) and (ii) of this subdivision (c) imply a need for capital
improvement or replacement, Tenant shall have performed the capital improvement
or replacement regardless of the time remaining in the then term of this Lease.
(d) In the event Tenant fails to maintain the Building in accordance
with Subsection 5.01(c) above, such failure shall not be deemed a default
hereunder during the term of this Lease, but Tenant shall be required to meet
the Restoration Standard by restoring the Building upon Lease Expiration or
Lease Termination to the same condition it would have been in had Tenant
fulfilled its obligation to maintain the Building in accordance with Subsection
5.01(c).
Section 5.02. Cost of Operations and Maintenance. (a) Except as otherwise
provided in Section 3.03 hereof and to the extent hereinafter specifically
otherwise provided, all costs of operations and maintenance (including, without
limitation, capital costs and managing agent fees incurred whether or not
Landlord exercises its rights under Section 5.02(d) hereof) that are: (i)
necessary to meet legal requirements, (ii) necessary to achieve and maintain the
Restoration Standard, (iii) otherwise specifically required by this Lease, or
(iv) otherwise desired by Tenant, shall be paid for by Tenant.
(b) During the term of this Lease, Tenant shall enter into a
management agreement (or successive management agreements) with a professional
third party building management firm to operate the Building in a manner which
satisfies the operation standard set forth in Section 5.01 hereof.
Simultaneously with the execution and delivery of this Lease, Tenant has entered
into a management agreement with CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., a copy of which has
been provided to Landlord. Upon the expiration or termination of the management
agreement, Tenant shall enter into a new or renewal agreement with CB ▇▇▇▇▇▇▇
▇▇▇▇▇, Inc. or Tenant may, instead, enter into a management agreement with
another recognized professional national property management firm with an office
in New York City or with a recognized professional New York City management firm
that already has under management at least (i) five (5) New York City office
buildings and (ii) 1,000,000 square feet of office space. Any management
agreement entered into by Tenant shall be terminable by or at the request of
Landlord in the event Landlord exercises its rights under Subdivision 5.02(d)
below. Tenant shall not self-manage the Building. On a quarterly basis, Tenant
shall provide or cause to be
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provided to Landlord, for informational purposes only, a copy of quarterly or
other periodic or special reports prepared or obtained by the management firm
for Tenant relating only to (i) the condition of the building (including the
status of capital improvements in progress and planned for the future), (ii)
incidents or problems that may have developed with the Premises, and (iii)
during the Consultative Period, current financial reports, and during any period
when Landlord is managing the Building, current financial reports and financial
reports for the preceding three (3) years, in each case, with respect to the
budget, income, expenses and operation of the Building. Landlord agrees that all
Landlord's requests and other communications regarding the foregoing reports
shall be directed to Tenant rather than said management firm.
(c) Upon the completion of construction of the 557 Building, Tenant
shall provide an adequate and appropriate space for the management of the
Building in the 557 Building.
(d) Landlord has the right to hire a management firm (CB ▇▇▇▇▇▇▇
▇▇▇▇▇, Inc. or another meeting the requirements of Subdivision 5.02(b) above) to
perform the management functions described above, but only if and for so long as
both of the following two conditions exist: (i) Tenant is not in physical
occupancy of at least 102,500 rentable square feet of office space in the
Building, and (ii) Tenant does not meet the Financial Test (as hereinafter set
forth). During the time the management firm has been hired by Landlord, except
in emergencies, Landlord shall obtain Tenant's approval (which approval shall
not be unreasonably withheld or unduly delayed), or shall cause the managing
agent to obtain Tenant's approval (which approval shall not be unreasonably
withheld or unduly delayed), prior to Landlord or such managing agent making a
decision which increases the cost of any line item in the operating expense
budget by $5,000 or more. Any management agreement entered into by Landlord
shall be terminable by or at the request of Tenant if and when either of the
above conditions no longer exists. If Landlord exercises its rights under this
Section 5.02(d), Landlord shall manage the Building in accordance with Sections
5.01(b) and (c). Landlord shall not self-manage the Building.
(e) As used in this Lease, "Financial Test" shall mean a credit
rating not lower than Standard & Poors Senior Long Term Debt rating of BB+
(i.e., as of the Commencement Date, one Standard & Poors rating level below
"investment grade" of BBB-). In the event Standard & Poors no longer exists or
no longer publishes credit ratings, the parties shall agree to a comparable
substitute credit rating agency. If the parties are unable to agree to a
substitute credit rating agency, the issue shall be resolved by arbitration in
accordance with Section 26.01.
Section 5.03. Consultative Period. The following provisions shall obtain
during the last two years (the "Consultative Period") of the Initial Term (if
Tenant has not exercised its right to renew) or of the Renewal Term:
(a) The parties will consult with one another with respect to any
significant management issues. The purpose of consultation shall be a good faith
effort by Landlord and
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Tenant to agree on appropriate management measures and capital and non-capital
expenditures to meet the Restoration Standard in a commercially reasonable
manner.
(b) Tenant shall be obligated to make and pay for capital
improvements only if (i) needed to meet the Restoration Standard or (ii) desired
by Tenant. Tenant shall elect whether to make such other capital improvements as
requested by Landlord or to permit Landlord to make them, in either event at
Landlord's cost, provided that the making of such capital improvements shall not
materially interfere with Tenant's use or occupancy of any portion of the
Property or access thereto.
(c) If Tenant shall be performing a capital improvement needed to
meet the Restoration Standard, Landlord may, on reasonable notice, require
Tenant to upgrade the same (but only if such incremental work shall not
materially interfere with Tenant's use or occupancy of any portion of the
Property or access thereto), in which event the additional cost attributable to
the upgrade shall be paid for by Landlord on a periodic basis that generally
corresponds to the progress of the work.
(d) If Landlord has exercised its rights under Section 5.02(d),
Landlord may not require Tenant to pay for non-capital expenditures other than
the same types of items and magnitudes included in Tenant's budgets or actual
expenditures in the three years preceding the Consultative Period.
(e) Disputes regarding (i) whether an issue is a significant
management issue, (ii) a failure to agree on whether a proposed capital
improvement is needed to meet the Restoration Standard or on the additional cost
attributable to an upgrade or (iii) the types and magnitudes of proposed
non-capital expenditures, shall be resolved by arbitration in the manner
provided by Article 26 below; provided that any arbitrator acting under Section
26.01 in connection with any of the foregoing matters shall be a specialist
(i.e., a building manager, engineer, architect, etc.) in the issue with which
the arbitration is concerned, and shall have been actively engaged in such
specialty for a period of at least ten (10) years before the date of his or her
appointment as an arbitrator hereunder.
Section 5.04. Tenant's Insurance. Tenant shall maintain in full force and
effect at all times during the term of this Lease:
(a) standard all-risk fire and casualty insurance (including,
without limitation and if commercially reasonable, flood and earthquake
coverages), with so-called "law and ordinance" coverage, covering the Building
and all leasehold improvements now or hereafter in the Premises in an amount at
least equal to replacement cost of the Building (excluding foundation and
excavation costs) and said leasehold improvements at the time in question, but
in no event less than such coverage as is required to avoid co-insurance
provisions; the policy shall contain a replacement cost and agreed amount
endorsement.
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(b) commercial general liability insurance, including a contractual
liability endorsement, which shall include bodily injury, personal injury,
death, independent contractors, completed operations and property damage
coverages, having a combined single limit amount of not less than $15,000,000
against all claims, demands or actions with respect to damage, injury or death
made by or on behalf of any person or entity, in respect of the Premises and the
roof of the Building, or arising from or related to the conduct and operation of
Tenant's business in the Premises.
(c) employer's liability insurance with a minimum limit of
$1,000,000 for bodily injury;
(d) worker's compensation, disability and other similar insurance in
statutory limits covering all persons employed by Tenant (and Tenant shall cause
Tenant's managing agent to maintain the same covering all persons employed by
Tenant's managing agent) or in connection with any work performed by or on
behalf of Tenant in the Building (or paying for comparable insurance taken out
by Landlord for persons employed by Landlord or Landlord's managing agent if
Landlord exercises its rights contained in Section 5.02(d) hereof);
(e) [intentionally omitted]
(f) rent or business interruption insurance in an amount sufficient
to pay the Annual Rental and estimated Real Estate Taxes during any period in
which 25% or more of the Building is rendered unuseable for Tenant's business
and Tenant is obligated hereunder to rebuild; and
(g) such other insurance coverage as is customarily carried by net
lessees in respect of buildings similar to the Building in Soho ("Comparable
Buildings").
Commencing with the fifth (5th) anniversary of the Commencement Date, Landlord
may from time to time during the term of this Lease (but not more frequently
than once during any period of five (5) years) require that the amount and type
of the insurance to be maintained by Tenant hereunder be increased, so that said
amount and type adequately protects Landlord's interest; provided, however, that
Landlord may not require Tenant to procure any insurance which (i) exceeds in
type or amount the insurance which is then being customarily required to be
maintained of net lessees of Comparable Buildings, or (ii) is not available at
commercially reasonable rates. Said policies of insurance may be written as
primary policy coverage or a combination of primary and excess coverage and
shall be issued by good and solvent companies, having a rating of not less than
"A:VIII" in Best's Key Rating Guide, licensed to do business in the State of New
York, or other companies approved by Landlord, which approval shall not be
unreasonably withheld or delayed. Landlord hereby approves the Atlantic Mutual
Insurance Co. and Centennial Insurance Company (or any of their affiliates or
subsidiaries) as Tenant's insurer. Said policies required under Subparagraphs
(b), (c) and (d) above shall name Landlord and Landlord's Mortgagee as
additional insureds as their interests may appear, and the policy
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required under Subparagraph (a) above shall name Landlord as an additional
insured and Landlord's Mortgagee as a mortgagee and loss payee as their
interests may appear and shall be payable and the proceeds made available to
Tenant as provided in Article 9 hereof. Said policies (if and to the extent that
the same shall be customary) shall provide that the insurer will give at least
thirty (30) days prior written notice of cancellation of said policy or of any
material modification thereof. Within twenty (20) days following the execution
of this Lease, and at least twenty (20) days prior to the expiration of any such
policy or renewals thereof, Tenant shall furnish to Landlord a certificate or
certificates of insurance (including appropriate endorsements showing Landlord
as an additional insured) certifying that the insurance coverage required hereby
is in force. Any insurance required by the terms of this Lease to be carried by
Tenant may be under a blanket policy (or policies) covering other properties or
locations of Tenant and/or its related or affiliated corporations. If such
insurance is maintained under a blanket policy, Tenant shall procure and deliver
to Landlord a statement from the insurer or authorized agent of the insurer
setting forth the coverage maintained and the amounts thereof allocated to the
risks at the Land and Building intended to be insured hereunder, which amounts
shall not be less than the limits set forth in clauses (a) through (g) of this
Section 5.04. Tenant shall promptly give Landlord a copy of any notice of
violation of insurance requirements received by Tenant from any insurance
carrier of Tenant.
ARTICLE SIX
LEASEHOLD MORTGAGES
Section 6.01. Mortgageable Lease. Notwithstanding anything to the contrary
contained in this Lease, Tenant shall, upon notice to Landlord, have the right
to mortgage this Lease and Tenant's rights hereunder without the consent of
Landlord (except that the consent of Landlord, not to be unreasonably withheld
or delayed, shall be required if the proposed mortgagee is not a domestic
institutional lender), and Landlord acknowledges that, in such event, it is the
intention of the parties that the rights of Tenant under this Lease shall be
mortgageable in accordance with institutional mortgage lending practices (i.e.,
this Lease shall be a "mortgageable lease"). Accordingly, Landlord shall
(subject to the limitations set forth below) consent to and make whatever
reasonable changes to this Lease as may be reasonably required, from time to
time, by a domestic institutional lender making a loan secured by an exculpated,
unguaranteed leasehold mortgage upon the interest of Tenant under this Lease,
including, but not limited to, payments to Tenant or mortgagee in condemnation
for the amount set forth in Section 12.04 hereof, rights to notice and
opportunity to cure, recording of notice of the mortgagee's rights, elimination
of any non-curable default obligations, estoppel certificates and the right to a
replacement lease in the event of a termination of this Lease if the leasehold
mortgagee cures monetary defaults prior to the expiration of the applicable
grace period(s). Tenant shall have the unrestricted right to collaterally assign
this Lease, provided that the assignee coming into possession of the Premises by
reason of such assignment satisfies the use and Minimum Net Worth requirements
set forth in Subsection 16.01(c) below. Tenant agrees that Landlord shall not be
required to make any
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changes to this Lease which shall (i) extend or shorten the term of this Lease,
(ii) increase any of Landlord's obligations or decrease any of Landlord's rights
under this Lease, except to a de minimis extent, or (iii) affect Tenant's
obligation to pay Annual Rental and Additional Rent. For the purposes of this
Lease, the term "domestic institutional lender" shall mean a savings bank, a
savings and loan association, a commercial bank, a trust company, which is
organized under the laws of the United States or Canada and subject to the
supervision of the Comptroller of the Currency, the Federal Reserve Board or a
state banking superintendent or commissioners, an insurance company, an
investment bank, a real estate mortgage investment conduit, a trustee in
securitization, or any assignee of any thereof (which assignee must also be a
domestic institutional lender) organized and existing under the laws of the
United States or Canada, a real estate investment trust sponsored by a domestic
institutional lender (which is not another real estate investment trust), or a
union, federal, state, municipal or secular employee's welfare, benefit, pension
or retirement fund.
ARTICLE SEVEN
USE AND ACCESS
Section 7.01. Use. (a) Tenant, its permitted assignees, permitted
subtenants and other permitted occupants of the Building or portions thereof
shall have the right to use the Building and all portions thereof for general
and executive office use and all purposes ancillary thereto, consistent with
ancillary uses in Comparable Buildings, as well as for retail use where
permitted by Applicable Law.
(b) Without limiting the foregoing, Tenant shall have the right to
use portions of the Building for the following specific purposes:
(i) medical departments for employees of Tenant;
(ii) cafeterias, kitchens, pantries and dining rooms for the
feeding of employees and guests of Tenant;
(iii) gallery and other retail uses (on the basement, first
and second floors of the Building only);
(iv) vending machines and snack bars for the sale of food,
confections, nonalcoholic beverages, cigars and cigarettes, newspapers and other
convenience items to employees of Tenant;
(v) business machines, equipment for printing, producing and
reproducing forms, circulars and other materials used in connection with the
conduct of Tenant's business,
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and equipment for the production of such photostats and other material as Tenant
may require for the transaction of its business, but in either instance not for
sale to others;
(vi) libraries;
(vii) computer and other electronic data processing equipment;
(viii) auditoriums;
(ix) board rooms, conference rooms and screening rooms;
(x) training rooms for employees and guests of Tenant;
(xi) facilities for storage of equipment and supplies in
connection with the foregoing;
(xii) safe and vault areas;
(xiii) audio-visual and closed circuit television facilities;
(xiv) a gymnasium, exercise and health room facility for
employees of Tenant, including, without limitation, locker rooms, showers and
related facilities;
(xv) radio and other electronic communication facilities;
(xvi) child care facilities; and
(xvii) retail sale of books and other educational materials.
(c) Without limiting the foregoing, Tenant shall have the right to
use the roof of the Building for the following outdoor purposes:
(i) dining area for the use by employees and guests of Tenant;
(ii) lounge area for employees and guests of Tenant;
(iii) parties and social gatherings of employees and guests of
Tenant;
(iv) area for microwave, satellite or other antenna
communication system; and
(v) such other outdoor roof activities as permitted by and in
accordance with Applicable Law in connection with such use.
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(d) To the extent any of the specific uses set forth in Subsections
(b) and (c) above or any other special use to which Tenant is permitted to put
the Premises requires an amendment to the existing certificate of occupancy,
Tenant shall be responsible for obtaining and maintaining the same at Tenant's
cost, as well as any other governmental permit, approval or license required by
Applicable Law in connection therewith. Landlord shall cooperate with Tenant and
shall execute all applications, authorizations and other instruments (but only
if the same shall be accurate, in the proper form and reasonably necessary for
Landlord to execute) reasonably required to enable Tenant to fulfill Tenant's
responsibilities under this Subsection (d); provided, however, that Landlord
shall not be required to incur any additional out-of-pocket expense therefor (it
being agreed and understood, however, that any cost or expense which Landlord is
or would be contractually obligated or legally liable to pay to any third party
or any governmental agency for any reason other than the cooperation requirement
set forth in this Subsection (d) shall not be deemed or construed an "additional
out-of-pocket expense"), unless Tenant agrees to reimburse Landlord for the
same. Tenant agrees to furnish Landlord with a copy of Tenant's applications in
connection therewith, and to furnish Landlord a copy of the amended certificate
of occupancy within a reasonable period of time following Tenant's receipt
thereof. The foregoing provisions are not intended to be deemed Landlord's
consent to any use of the Premises not otherwise permitted hereunder. Landlord
does not represent that any of the uses of the Premises specified in Subsections
7.01(b) and (c) above are or shall be in compliance with Applicable Law.
(e) Tenant shall not permit or conduct any obscene performances
within the Premises, nor permit use of the Premises for nude modeling, or as a
sex club of any sort, or as a "massage parlor". Obscenity is defined here as it
is in Penal Law '235.00. Tenant shall not use or occupy the Building, or
knowingly permit any agent, employee, licensee or invitee of Tenant to use or
occupy the Premises, or do anything in the Building, or knowingly permit
anything to be done in, brought into or kept on the Premises by any agent,
employee, licensee or invitee of Tenant, which: (i) violates the certificate of
occupancy for the Building; (ii) causes injury to the Building or any of
Landlord's equipment, facilities or systems therein; or (iii) constitutes a
violation of Applicable Laws or the requirements of relevant insurance bodies.
Landlord agrees not to enforce the provisions of this Subsection 7.01(e) against
Tenant in a commercially unreasonable manner.
(f) Tenant shall not use, or knowingly permit anyone to use, the
Premises or any part thereof, for gambling activities or for the regular conduct
of auctions, except that Tenant may conduct public art and similar auctions on
the first and second floors of the Building, occasional other auctions for
charitable, educational or community purposes, and private auctions of Tenant's
own assets.
(g) Tenant shall not commit waste upon the Premises.
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Section 7.02. Access. Tenant and its permitted subtenants and other
permitted occupants of the Premises, and their employees, agents, licensees and
invitees, shall have access to the Premises at all times, 24 hours per day,
every day of the year. Notwithstanding the foregoing, Landlord shall have the
right to close the Building one (1) day per year if necessary to prevent any
easements by prescription.
ARTICLE EIGHT
REPAIRS AND MAINTENANCE
Section 8.01. Tenant's Obligation to Repair and Maintain. (a) Tenant
shall, at its sole cost and expense, keep and maintain in good repair and
working order and make all necessary repairs and replacements to and perform all
necessary maintenance upon the Building (including, without limitation, any base
building systems) and public portions of the Building and all parts thereof,
including, without limitation, the foundation, footings, roof, exterior walls
and load-bearing walls and columns of the Building, the plumbing, electrical and
mechanical systems serving the Building, all floors and ceilings in the
Building, all core stairs, all elevators, all exterior windows, exterior plate
glass, window ▇▇▇▇▇ and sashes in the Building and all Building equipment within
and serving the Building.
(b) Tenant shall also be responsible for all repairs, interior and
exterior, structural and non-structural, ordinary and extraordinary, foreseen
and unforeseen, in and to the Building, the roof, and all of Tenant's leasehold
improvements.
(c) Landlord shall be responsible for all repairs to the Building or
any part thereof, the need for which arises out of the wrongful or negligent act
or omission of Landlord or of Landlord's employees, agents (including, without
limitation, Landlord's managing agent during any period when Landlord has hired
a management firm under Section 5.02(d) hereof), contractors or invitees, which
wrongful or negligent act or omission occurs after the Commencement Date. In
addition, and notwithstanding the foregoing, in the event Landlord has exercised
its right to hire a management firm under Section 5.02(d), Landlord shall be
responsible for all repairs to the Building or any part thereof to the extent
the need therefore arises out of Landlord's failure to perform its obligations
to manage the Building in accordance with the terms of this Lease. All repairs
in and to the Building for which Landlord is responsible in accordance with this
Subsection 8.01(c) shall be promptly performed by Landlord in compliance with
all Applicable Laws. If Landlord shall default in the performance of any of
Landlord's obligations under this Subsection 8.01(c), or if Landlord shall fail
to make any payment that Landlord agrees or is obligated to make pursuant to
this Subsection 8.01(c), then Tenant, after five (5) business days notice to
Landlord (and without notice in the case of an emergency), may perform the
obligation, or, in the case of a payment due others, make the payment, as
Landlord's agent. The full amount of the cost and expense so incurred by Tenant
or the payment so made, together with the amount of any reasonable attorneys'
fees in instituting,
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prosecuting or defending any action or proceeding by reason of any default of
Landlord hereunder, shall be paid by Landlord to Tenant with interest at the
Prime Rate thereon from the date so paid or incurred by Tenant until paid by
Landlord.
ARTICLE NINE
FIRE AND OTHER CASUALTY
Section 9.01. Damage or Destruction. (a) Except to the extent otherwise
provided in Subsection (b) of this Section 9.01, (i) Tenant at its sole cost and
expense shall promptly proceed to reconstruct, restore and repair any damage or
destruction to the Premises by fire or other casualty to a condition
substantially equivalent in value and function to the extent permitted by law to
its former condition; and (ii) Tenant specifically waives any rights it might
otherwise have under New York Real Property Law ' 227 to any abatement of rent
or other obligations under this Lease or to any right to terminate this Lease.
(b) (i) If, during the 19th or 20th years of the Initial Term or
during the last two years of the Initial Term (if Tenant has not exercised its
Renewal Option) or during the last two years of the Renewal Term, more than 25%
of the Building shall be damaged by fire or other casualty, Tenant may elect not
to reconstruct, restore or repair, and may terminate this Lease on thirty (30)
days written notice to Landlord given at any time after the date of the fire or
other casualty. Tenant, in that event, will assign to Landlord all its rights
under the fire and extended coverage insurance policies required to be
maintained under this Lease, and subject to a pro-ration and apportionment of
Annual Rental and Real Estate Taxes as of the date of the casualty, no further
rentals shall be due hereunder.
(ii) If, during the first eighteen (18) years of the Initial
Term, more than 25% of the Building shall be damaged by fire or other casualty,
Tenant shall be obligated to rebuild as required by Section 9.01(a) hereof but
Tenant may, at its option, elect to terminate this Lease as of the 18th
anniversary of the Commencement Date by giving Landlord a notice to that effect
no later than the earlier of (i) one year after the date of the fire or casualty
and (ii) the eighteenth anniversary of the Commencement Date.
Section 9.02. Waiver of Subrogation Rights. (a) The parties hereto hereby
waive any and all rights of recovery, claim, action or cause of action, against
the other party (and, in the case of Tenant, such waiver shall extend to
Tenant's permitted subtenants and other occupants of the Premises), their
respective agents, partners, officers and employees, for any loss or damage that
may occur to the Building and to all property, whether real, personal or mixed,
located in the Building, by reason of fire, the elements or any other cause
normally insured against under the terms of standard "all risk" insurance
policies of the type prescribed from time to time for use in respect of the
Building, regardless of cause or origin, including the negligence of the parties
hereto or of any such subtenants or other occupants of the Building, their
respective agents and
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employees. Each party agrees to provide the other with reasonable evidence of
its insurance carrier's consent to such waiver of subrogation. Nothing contained
in this Section 9.02 shall be deemed to relieve either party of any duty imposed
elsewhere in this Lease to repair, restore or rebuild provided for elsewhere in
this Lease.
(b) Landlord and Tenant shall each include in its fire insurance
policies appropriate clauses pursuant to which the insurance companies (i) waive
all rights of subrogation against the other and each party's mortgagee with
respect to losses payable under such policies and/or (ii) agree that such
policies shall not be invalidated should the insured waive in writing prior to a
loss any or all rights of recovery against any party for losses covered by such
policies.
ARTICLE TEN
LIABILITY
Section 10.01. Indemnification of the Parties. Subject to the provisions
of Section 9.02, Landlord and Tenant each agree to indemnify and save the other
(and such other's partners, directors, employees, shareholders, members and
principals) harmless from any and all claims with respect to bodily injury or
property damage: (i) arising from any breach or default on the part of the
indemnifying party in the performance of any covenant or agreement on its part
to be performed pursuant to the terms of this Lease, or (ii) arising from the
indemnifying party's negligence or the negligence of any of its agents,
contractors or employees, including, without limitation, all costs, reasonable
counsel fees and disbursements, expenses and liabilities incurred in connection
with any such claim; and if any action or proceeding is brought against either
Landlord or Tenant by reason of any such claim, the indemnifying party upon
notice from the party to be indemnified covenants to resist or defend such
action or proceeding at its expense. In addition to the foregoing and subject to
the provisions of Section 9.02, Tenant agrees to indemnify and save Landlord
harmless from any and all claims, accidents, damages or injuries whatsoever
occurring in the Building or on the roof of the Building, unless and to the
extent caused by the negligence or willful misconduct of Landlord or an
Affiliate of Landlord or of their respective agents, employees, contractors or
invitees. The party to be indemnified shall not settle any such action without
the consent of the indemnifying party, and shall permit the indemnifying party
to participate in the defense of any such action.
Section 10.02. Landlord's Exculpation. Except as otherwise expressly
provided in this Lease, Landlord shall not be liable to Tenant for any loss or
injury or damage to Tenant, or to Tenant's property, irrespective of the cause
of such injury, damage or loss, and Landlord shall not be liable for any damage
to property of Tenant entrusted to employees of Landlord or for loss of or
damage to any such property by theft or otherwise, except, in all such cases, to
the extent caused by or resulting from (i) the failure by Landlord to fulfill
any of Landlord's obligations under this Lease, or (ii) the negligence or
willful misconduct of Landlord, or of an Affiliate of
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Landlord or of their respective agents, employees, contractors or invitees
(subject, however, to the provisions of Section 9.02 above).
ARTICLE ELEVEN
ALTERATIONS AND FIXTURES
Section 11.01. Alterations by Tenant. (a) At any time, and from time to
time during the term of this Lease, Tenant may make all such improvements,
additions, changes and alterations to the Premises (collectively, "Alterations")
as Tenant shall deem necessary or desirable.
(b) Alterations to the building systems which neither constitute
waste nor materially diminish the value of the Building are not Structural
Alterations. Other Alterations to building systems are Structural Alterations.
(c) "Structural Alterations" are Alterations that (other than to a
de minimis extent): (i) reduce the value of the Building, (ii) reduce the
marketability of the office space of the Building for single or multi-tenancy,
(iii) affect the structural integrity of the Building (i.e., load-bearing
components), (iv) affect the facade or other exterior appearance of the
Building, or (v) if made to Building Systems, constitute waste.
(d) Tenant shall give Landlord at least ten (10) business days prior
written notice of any proposed Alteration (Structural or otherwise) in
sufficient detail for Landlord to determine whether the proposed Alteration is a
Structural Alteration; provided that Tenant need not give Landlord notice of any
proposed Alteration that is clearly not a Structural Alteration.
(e) If a proposed Alteration is a Structural Alteration, Landlord
may require the restoration at Lease Expiration of the portions of the Building
affected by the Structural Alteration, but only if Landlord shall have given
Tenant a written notice to that effect within ten (10) business days after
receiving Tenant's notice of the proposed Structural Alteration.
(f) Notwithstanding the foregoing provisions of this Section 11.01,
Tenant may proceed to perform any Alteration (whether or not a Structural
Alteration) without having received Landlord's notice described in Section
11.01(e) hereof. Tenant acknowledges that it proceeds at its own risk (i.e.,
Landlord may determine that the proposed Alteration is a Structural Alteration,
and require the restoration at Lease Expiration of the portions of the Building
affected by the Structural Alteration) if Tenant fails to wait for the earlier
of Landlord's notice or the lapse of the ten (10) business days as stated in
Section 11.01(e). In the event Tenant's notice to Landlord regarding the
proposed Structural Alteration does not accurately describe or cover the
Alteration that is ultimately built (as shown in the "as built" plans delivered
to Landlord upon completion of the Alteration pursuant to Section 11.02(c)),
Landlord shall have the right to
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require the restoration at Lease Expiration of the portions of the Building
affected by such Structural Alteration.
(g) Promptly upon the completion of any Structural Alteration as to
which Landlord has reserved a right to require restoration, Tenant shall inform
Landlord in writing as to Tenant's good faith reasonable estimate of the cost of
restoration.
(h) If Landlord or Tenant disputes whether (A) an Alteration is a
Structural Alteration or (B) Tenant's good faith reasonable estimate of the cost
of restoration is, in fact, a commercially reasonable estimate, the dispute
shall be settled by Expedited Arbitration commenced by either party (x) within
six (6) months after the delivery by Tenant to Landlord of the notice set forth
in Subsection 11.01(d) above (or if no such notice has been given within six (6)
months from the date Landlord has actual knowledge of the information that
Tenant is required to include in its notice to Landlord pursuant to Subsection
11.01(d) above), in the case of a dispute as to the matter set forth in clause
(A) of this Subsection 11.01(h), or (y) within six (6) months after the delivery
by Tenant to Landlord of the writing set forth in Subsection 11.01(g) above, in
the case of a dispute as to the matter set forth in clause (B) of this
Subsection 11.01(h). A failure to commence to arbitrate the Landlord's
determination that an Alteration is a Structural Alteration or Tenant's estimate
of the cost of restoration within the six (6) months shall constitute a waiver
by both parties of any objections to the determination or estimate, as the case
may be.
(i) Notwithstanding anything to the contrary set forth in Subsection
11.01(e) above, Tenant may add, without having to restore, (i) two passenger
elevators (in the location and having the operational specifications shown on
Exhibit C attached hereto) and (ii) bathrooms (in the locations shown on Exhibit
D attached hereto).
(j) Landlord shall reasonably cooperate with Tenant in connection
with the performance of Alterations, and sign any application or other
instrument ("Building Applications") for any permit, license, certificate,
approval or authorization required to be obtained under Applicable Law in
connection with any Alteration, provided the relevant Building Application is
accurate, in proper form required by Applicable Law and Landlord's execution is
reasonably necessary; provided, however, that Landlord shall not be required to
incur any additional out-of-pocket cost or expense therefor (it being agreed and
understood, however, that any cost or expense which Landlord is or would be
contractually obligated or legally liable to pay to any third party or any
governmental agency for any reason other than the cooperation requirement set
forth in this Subsection (j) shall not be deemed or construed an "additional
out-of-pocket expense"), unless Tenant agrees to reimburse Landlord for the
same.
(k) In addition to Landlord's cooperation obligation contained in
Subsection (j) above, at Tenant's request, Landlord shall transfer to Tenant and
the managing agent of the Building, to the extent permitted by Applicable Law,
the joint (but not several) authority to
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execute as "owner" all Building Applications during such times as Landlord has
not exercised its rights under Section 5.02(d) hereof.
(l) All Building Applications filed by or on behalf of Tenant shall
be signed both by Tenant and the managing agent of the Building. Tenant shall
deliver or cause to be delivered to Landlord a copy of each Building Application
promptly after it has been signed by Tenant and the managing agent of the
Building.
(m) During the performance of any Structural Alteration which
requires the issuance of a New York City Building Department permit and exceeds
$300,000 in cost, representatives of Landlord shall have the right to inspect
the same at reasonable times, on reasonable prior notice and accompanied by a
representative of Tenant (unless Tenant shall fail to make a representative
available for such purpose).
Section 11.02. Requirements. (a) When Tenant performs an Alteration,
Tenant shall:
(i) perform the Alteration in a good and workmanlike manner
using contractors and mechanics of recognized competence and using materials and
equipment at least comparable in grade to the original installation in the
Building;
(ii) perform the Alteration in compliance with Applicable Law;
and
(iii) pay for all costs incurred in connection with the
Alterations, without limitation, all permits, certificates, approvals and
licenses necessary to complete the Alterations.
(b) Prior to commencing the performance of an Alteration, Tenant
shall comply with the following requirements:
(i) Tenant shall obtain all permits, approvals and
certificates required by Applicable Law needed for the performance of the
Alteration, except insofar as governmental practice and procedure requires that
such permits, approvals and certificates be issued in stages, in which case
Tenant shall obtain the same as required for the performance of the Alteration;
and
(ii) Tenant shall obtain, or cause to be carried by Tenant's
general contractor, commercial general liability insurance, "all risk" Builder's
Risk Insurance and worker's compensation insurance, with completed operations
endorsement, which insurance shall (x) include Landlord and Landlord's Mortgagee
and the managing agent for the Building as additional insureds, and (if and to
the extent that the same shall be customary) shall provide that the insurer will
give Landlord and said additional insureds thirty (30) days prior written notice
of cancellation of said policy and of any material modification thereof, (y) be
in such limits as are reasonably appropriate for the nature and cost of the
particular work, and (z) be issued by a company or companies of recognized
responsibility and licensed to do business in the State of New York.
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(c) Promptly following completion of any Alteration and Landlord's
request therefor, Tenant shall deliver to Landlord (x) the final governmental
approvals, including any amended or newly issued certificate of occupancy
required in connection with the completed Alteration, and (y) such "as built"
plans for such Alteration as are required by Applicable Law. Landlord
acknowledges that all plans for any Alteration, including, without limitation,
any "as-built" plans required to be delivered to Landlord pursuant to this
Article 11, shall remain the exclusive property of Tenant and/or the architect
and/or the engineer who prepared such plans, provided that Landlord shall be
permitted to use such plans for the purpose of completing such Alteration if and
when Landlord has the right to do so under the terms of this Lease.
Section 11.03. Tenant's Property. (a) Tenant may, at any time and from
time to time during or upon the expiration or earlier termination of the term of
this Lease, remove from the Building any or all trade fixtures, equipment,
moveable partitions, moveable walls and wall systems, furniture and furnishings,
and other moveable personal property in the Premises by or at the behest of
Tenant, provided such installation or removal is accomplished without permanent
and material damage to the Building. Tenant shall promptly repair any damage
caused by such removal.
(b) Upon the expiration of this Lease, Tenant shall remove all of
Tenant's personal property from the Building, and Tenant shall promptly repair
any damage to the Building resulting therefrom. If Tenant shall fail to remove
any personal property of Tenant which Tenant is permitted to remove upon the
expiration of this Lease, then (unless Tenant shall then be unable to remove the
same due to Excusable Delay) any such property not removed, within ten (10) days
following notice given to Tenant by Landlord following such expiration shall be
deemed to have been abandoned, and shall, at Landlord's election, become the
property of Landlord or disposed of by Landlord, without accountability to
Tenant, in such manner as Landlord shall reasonably determine.
Section 11.04. Restoration Obligation. (a) Tenant shall be obligated to
pay for restoration after Lease Termination of the following items: (i) any
Structural Alteration as to which Landlord has reserved its right under this
Lease to require restoration; (ii) unless requested otherwise by Landlord, the
restoration of the Building effected by the separation of the Building from ▇▇▇
▇▇▇▇▇▇▇▇ if and to the extent required in accordance with the Easements
Agreement; and (iii) the slabbing over in a commercially reasonable manner of
any interior stairwells ("Atrium") constructed by Tenant (whether prior or
subsequent to the Commencement Date of this Lease) if, and to the extent that,
Landlord in good faith determines that it will pursue a leasing program for the
Building or portions thereof to lease space to single floor tenants or to more
than one tenant on a floor or to multifloor tenants who will not use the
existing Atrium or portions thereof.
(b) Tenant shall discharge the restoration obligations set forth in
Section 11.04(a) above by reimbursing Landlord for the commercially reasonable
cost incurred by Landlord in
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physically accomplishing those restorations which Landlord has the right under
this Lease to require. If Landlord and Tenant are unable to agree upon the
commercially reasonable cost or the appropriate allocation of cost to a required
restoration item, the dispute will be resolved by Expedited Arbitration.
(c) Landlord shall notify Tenant no later than one year after Lease
Termination which items Landlord intends to restore. Landlord will commence
restoration on those items on a schedule which, in accordance with New York City
construction industry practice, would reasonably anticipate substantial
completion prior to the second anniversary of Lease Expiration.
(d) If and for so long as Tenant does not meet the Financial Test at
Lease Termination or at any time thereafter, Tenant shall deposit in escrow with
the Escrow Agent (as hereinafter defined) the amount by which the total of all
commercially reasonable estimates of costs of restorations arrived at pursuant
to Section 11.01(g) and (h) hereof plus $280,000 (the currently agreed upon
commercially reasonable cost of restoration of the entire Atrium) exceeds the
amount of Tenant's Letter of Credit. The amount, if any, required to be
deposited will be recalculated when Landlord gives Tenant the notice required
under Section 11.04(c) above. The amounts so deposited plus Tenant's Letter of
Credit shall be security for performance of Tenant's obligations under Sections
11.04(a) and (b) hereof but shall not limit Tenant's liability. Escrow Agent
shall be agreed upon by Landlord and Tenant but in any event it shall be a
reputable law firm in New York City having no less than ten attorneys. If the
parties fail to agree on an Escrow Agent within 30 days from the date the need
for the Escrow Agent arises, then either party may ask the President of the
Association of the Bar of The City of New York to appoint an Escrow Agent. The
parties hereto shall be bound by such appointment. The Escrow Agent shall invest
the escrowed funds in a commercially reasonable interest bearing investment.
(e) Tenant's liability for payment with respect to restoration shall
not exceed the commercially reasonable costs incurred by Landlord for physical
restoration actually performed within two years of Lease Termination. Any
amounts in escrow in excess of Landlord's unreimbursed costs shall be released
from escrow and paid over (together with interest thereon) to Tenant as soon as
practicable after the second anniversary of Lease Expiration. The provisions of
this Section 11.04(e) shall survive the expiration or earlier termination of
this Lease.
Section 11.05. Landlord's Property. All Alterations performed by Tenant to
the core of the Building, and all fixtures (other than trade fixtures),
appurtenances and leasehold improvements permanently attached to or built into
the Premises shall, upon Lease Expiration, be deemed to be the property of
Landlord, subject, however, to Tenant's right to perform the Alterations
permitted pursuant to this Article 11.
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ARTICLE TWELVE
CONDEMNATION
Section 12.01. Total Taking. If all of the Premises shall be taken by
condemnation or in any other manner for any public or quasi-public use or
purpose (other than for temporary use or occupancy), the term of this Lease
shall terminate as of the date of vesting of title (the "Date of the Taking"),
and, subject to a pro-ration and apportionment of Annual Rental and Real Estate
Taxes as of the Date of the Taking, Tenant shall have no further obligations
hereunder.
Section 12.02. Partial Taking. In the event of a partial taking, this
Lease shall remain in effect with respect to the balance of the Premises without
any reduction in the Annual Rental, Additional Rent or other sums payable
hereunder and Tenant shall be obligated to rebuild, alter and restore the
remaining part of the Building.
Section 12.03. Claims of Landlord and Tenant. Except as otherwise provided
herein and subject to the provisions of Section 12.04 hereof, Landlord shall be
entitled to receive the entire award in any proceeding with respect to any
taking (other than for temporary use and occupancy) provided for in this
Article. Tenant shall also have the right to make a separate claim with the
condemning authority for (a) any moving expenses incurred by Tenant as a result
of such taking; (b) the unamortized portion (on a straight-line basis over
twenty (20) years) of any costs incurred by Tenant in connection with any
alteration or improvement made by Tenant to the Premises; (c) the value of any
of Tenant's property taken (not compensated for under (b) of this sentence); and
(d) any other separate claim which Tenant may hereafter be permitted to make. If
Tenant shall not be permitted to make a separate claim in such proceeding,
Landlord shall prosecute all claims in such proceeding on behalf of both
Landlord and Tenant, in which event Tenant may, if it so elects and at its
expense, join with Landlord in such proceeding, retain co-counsel, attend
hearings, present arguments and generally participate in the conduct of the
proceeding. Items (a), (b), (c) and (d) above in this Section 12.03 are
hereinafter referred to as "Tenant's separate claim items."
Section 12.04. Distribution of the Award. The aggregate amount of all
awards received in any proceeding relating to any taking (other than awards to
Tenant for temporary use or occupancy) is hereinafter called the "Award".
Regardless of the apportionment of the Award in such proceeding, and regardless
of any termination of this Lease, the Award shall be distributed in the
following order of priority:
(a) If Tenant shall be obligated to repair, alter and restore the
remaining part of the Building or the Premises pursuant to Section 12.02, there
shall be paid: (i) to Tenant, the amount actually expended by Tenant for such
repair, alteration and restoration; (ii) to Tenant, any Tenant's separate claim
items; (iii) to Landlord, the amount by which Landlord's reversionary interest
in the Premises had there been no taking has been reduced by the taking; (iv) to
Tenant, the amount by which the taking reduced the value of the estate vested in
Tenant
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by this Lease; and (v) to Landlord, the balance, if any of the Award. The
foregoing amounts payable to Landlord shall be paid to Landlord's Mortgagee to
the extent required by Landlord's Mortgage.
(b) If the Lease is terminated pursuant to Section 12.01: (i) the
Landlord's Mortgagee shall be paid such amount as shall be necessary to satisfy
the Mortgage; (ii) the Tenant shall be paid the Tenant's separate claim items;
and (iii) the Landlord shall be paid any balance of the Award.
(c) The provisions of this Section 12.04 shall survive termination
of the Lease.
Section 12.05. Temporary Taking of Premises. If all or any part of the
Premises shall be temporarily taken by condemnation or otherwise for any public
or quasi-public use or purpose, this Lease shall nevertheless remain in full
force and effect. Tenant shall continue to be responsible for all of its
obligations hereunder in so far as such obligations are not affected by such
taking, including, without limitation, Tenant's liability for the Annual Rental
and Additional Rent reserved hereunder. The entire Award for a temporary taking
shall belong to the Tenant provided the entire term of the temporary taking
falls within the unexpired term of this Lease; otherwise, the Award will be
apportioned between Landlord and Tenant in an equitable manner to reflect the
damages to be suffered by Tenant during the Lease term and the damages to be
suffered by Landlord thereafter. Any dispute between Landlord and Tenant with
respect to such apportionment shall be resolved by arbitration.
Section 12.06. Tenant's Obligation to Restore. In the event of a taking
which does not result in the termination of this Lease, Tenant shall, at
Tenant's expense and regardless whether any Award or Awards shall be sufficient
for the purpose, proceed with due diligence to repair, alter and restore the
remaining part of the Premises substantially to their former condition to the
extent feasible and permitted by law to constitute a complete and tenantable
Building. Upon the expiration of any temporary taking which did not result in a
termination of this Lease, Tenant shall restore the Premises to their former
condition as aforesaid.
ARTICLE THIRTEEN
REMEDIES AND DEFAULTS
Section 13.01. Default by Tenant. Any of the following events shall be an
"Event of Default" hereunder:
(a) If Tenant shall fail to pay any monthly installment of the
Annual Rental or any item of Additional Rent when due, and failure to make
either of such payments shall continue for a period of ten (10) days after
written notice thereof by Landlord; or
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(b) If Tenant shall fail to perform or observe any other covenant,
term, provision or condition of this Lease to the detriment of Landlord and such
failure shall continue for a period of thirty (30) days after written notice
thereof by Landlord (or such longer period as may be reasonably required to cure
such default), subject to Excusable Delays.
Section 13.02. Landlord's Remedies. (a) This Lease is subject to the
limitation that, if an Event of Default shall have occurred and then be
continuing, then, at Landlord's option and upon fifteen (15) days prior written
notice to Tenant (if such Event of Default shall not have been cured within said
fifteen (15) days), this Lease and the term and estate hereby granted and
Tenant's right to possession and occupancy of the Premises shall immediately
cease and terminate. Notwithstanding the foregoing, if Landlord shall have
properly delivered two (2) such termination notices to Tenant by reason of
separate Events of Default occurring within the preceding twelve (12) month
period, then Tenant shall not have the right to cure the third Event of Default
during said fifteen (15) day termination period.
(b) Despite any termination of this Lease, Tenant agrees that Tenant
shall remain liable for the Annual Rental and any Additional Rent due and to
become due hereunder, and the same shall be paid by Tenant to Landlord on the
regular days stipulated herein for payment of rentals. If the Premises are relet
in whole or in part, Tenant shall be entitled to a credit in the amount of the
Annual Rental or Additional Rent received by Landlord as a result (after
deducting all reasonable costs incurred by Landlord in finding a new tenant and
making the Premises (or any portion thereof) ready for occupancy, including, but
not limited to, brokerage and advertising fees). Tenant shall remain obligated
to pay the amount of any deficiency in the Annual Rental or any Additional Rent
obtained on such reletting, but if the Annual Rental or any Additional Rent
obtained on such reletting is greater than that provided for herein plus
Landlord's costs, Landlord shall be entitled to receive such excess. Landlord
shall have the right to collect from Tenant amounts equal to said deficiencies
provided for above by suits or proceedings brought from time to time on one or
more occasions without Landlord being obligated to wait until the expiration of
the term of this Lease.
(c) If this Lease shall have been terminated pursuant to Subsection
13.02(a) above, then, in lieu of (but not in addition to) the rental liability
provided in Subsection 13.02(b) above, Landlord may elect, by notice given to
Tenant within thirty (30) days following such termination, to claim and receive
as damages a liquidated sum equal to the then present value of the amount, if
any, by which (i) the aggregate of the Annual Rental and the Additional Rent
which would have been payable by Tenant to Landlord under this Lease during the
period beginning on the date of such election and ending on the Expiration Date,
exceeds (ii) the Fair Rental Value of the Premises (which, in the event of a
dispute thereto, shall be determined in accordance with Article 26 below) for
said period.
(d) If an Event of Default shall have occurred and then be
continuing, Landlord or Landlord's agents and employees may, after the fifteen
(15) day notice period provided in Section 13.02(a) above or at any time
thereafter, terminate this Lease and then reenter the
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Premises, either by summary dispossess proceedings or by any suitable action or
proceeding at law, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any person therefrom, to
the end that Landlord may have, hold and enjoy the Premises. If this Lease shall
be terminated, and whether or not Landlord shall then reenter the Premises under
the provisions of this Article 13, Tenant shall thereupon pay to Landlord the
Annual Rental and any other amount due hereunder payable up to the time of such
termination of this Lease, and shall also pay to Landlord damages as hereinabove
provided.
(e) If this Lease shall be terminated under the provisions of this
Article 13, and whether or not Landlord shall then reenter the Premises under
the provisions of this Article 13, Landlord shall be entitled to retain all
monies, if any, paid by Tenant to Landlord, whether as advance rent, security or
otherwise, but such monies shall be credited by Landlord against any Annual
Rental or any other amount due hereunder from Tenant at the time of such
termination or, if no such amount shall be due, against any damages payable by
Tenant hereunder.
(f) If an Event of Default shall occur and then be continuing, then
Landlord, any superior lessor or any Landlord's Mortgagee, without thereby
waiving such default, may (but shall not be obligated to) perform the same for
the account and at the reasonable expense of Tenant, without notice in a case of
emergency, and in any other case only upon five (5) business days notice to
Tenant. The full amount of the reasonable cost and expense so incurred by
Landlord, such superior lessor or Landlord's Mortgagee shall be paid by Tenant
to Landlord, with interest at the Prime Rate from the date such expense was paid
by Landlord, superior lessor or Landlord's Mortgagee until paid by Tenant.
Section 13.03. Late Payments. If either party shall fail to pay to the
other any amount then due under this Lease, and, if such failure shall continue
for a period of thirty (30) days after notice has been given to the late payor
that the same is overdue, then the party obligated to make such payment shall be
also obligated to pay to the other: (a) a one-time administrative charge equal
to one (1%) percent of the overdue amount, and (b) interest on such overdue
amount at the Prime Rate, from its due date until paid.
Section 13.04. Prevailing Party. Notwithstanding anything to the contrary
contained herein, (i) if Landlord shall institute any action or proceeding
against Tenant with respect to any matter arising from this Lease, or (ii) if
Tenant shall institute any action or proceeding against Landlord with respect to
any matter arising from this Lease, then, in either of such events, the party
not prevailing in such actions or proceedings shall, within thirty (30) days
following demand therefor, pay to the other party the expenditures (including
reasonable attorneys' fees), with interest at the Prime Rate, incurred by such
other party in connection therewith.
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ARTICLE FOURTEEN
BANKRUPTCY
Section 14.01. Bankruptcy by Tenant. This lease is subject to the
limitation that if (a) a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or
substantially all of Tenant's assets shall be filed against Tenant in any court
pursuant to any statute either of the United States or of any state and Tenant
fails to secure a discharge thereof within one hundred twenty (120) days, or if
Tenant shall voluntarily file a petition in bankruptcy or makes an assignment
for the benefit of creditors or petitions for or enters into an arrangement with
creditors, or (b) if a permanent receiver shall be appointed for all of the
property of Tenant, the term of this Lease, at the option of Landlord, exercised
within thirty (30) days after notice of the happening of any one or more of such
events, shall terminate on such date as Landlord shall specify by notice to
Tenant, with the same effect as if the date of termination were the Expiration
Date of this Lease, but Tenant shall remain liable for rentals and/or damages
and attorneys' fees as provided in Article Thirteen; provided, however, that
Landlord may not terminate the term of this Lease if and for so long as Tenant
shall pay the Annual Rental when due and Tenant shall not be in default of any
other obligations hereunder after the expiration of any applicable cure period.
ARTICLE FIFTEEN
COMPLIANCE WITH LAWS
Section 15.01. Tenant's Compliance with Laws. (a) Tenant, at Tenant's
expense, shall comply with any valid and applicable laws, rules, orders,
ordinances, regulations and other requirements, present or future (collectively,
"Applicable Law"), affecting the Premises, or the use or occupancy thereof, that
are promulgated by any governmental authority or agency having jurisdiction over
the Premises, and with any reasonable and industry-wide requirements of the
insurance companies insuring Landlord or Tenant against damage, loss or
liability for accidents in or connected with the Premises. Without limiting
Tenant's obligations under the preceding sentence, Tenant, at Tenant's expense,
shall comply with Applicable Law relating to the installation, modification and
maintenance within the Premises of fire-rated partitions and sprinklers, gas,
smoke or fire detector or alarm systems, any emergency lighting systems or any
other currently required system to extinguish fires, including, but not limited
to, Local Law 5/1973. Tenant shall not at any time use or occupy the Premises so
as to violate the certificate of occupancy for the Building.
(b) Tenant may, at its expense (and, if necessary, in the name of,
but without expense to, Landlord) contest, by appropriate proceedings diligently
prosecuted, the validity or applicability to the Premises of any matter which
Tenant may be required to comply with pursuant to Subsection 15.01(a) above, and
may postpone compliance therewith until such
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contest shall be decided, provided that the postponement of such compliance
shall not (i) subject Landlord or its managing agent or any Mortgagee (or their
respective partners, directors, officers, shareholders, agents and employees) to
any civil fine or monetary penalty (unless Tenant assumes responsibility for the
payment thereof), criminal liability or forfeiture of the Land or Building or
any part thereof, (ii) subject the Building or any part thereof to being
condemned or vacated by reason thereof, or (iii) prevent the issuance of or
cause the certificate of occupancy for the Building to be revoked. Tenant shall
indemnify and hold harmless the Landlord's Mortgagee, and Landlord and
Landlord's partners, directors, officers, shareholders, agents and employees
from and against any and all claims arising from Tenant's contesting any
Applicable Law in accordance with this Subsection 15.01(b).
ARTICLE SIXTEEN
ASSIGNMENT AND SUBLETTING
Section 16.01. Assignment by Tenant. (a) Tenant shall have the right, on
notice to Landlord but without being required to obtain Landlord's consent, to
assign Tenant's interest in this Lease to any corporation or other entity: (i)
into or with which Tenant shall be merged or consolidated, provided (x) in the
case of a corporate assignee, that such assignee shall have (immediately after
such merger or consolidation) a net worth equal to not less than the assignor's
net worth immediately preceding such assignment, and (y) in the case of an
assignee which is a partnership or similar entity, that the aggregate net
operating income of both Tenant and the entity into or with which Tenant shall
be merged or consolidated, for the fiscal year immediately preceding such merger
or consolidation, shall be equal to not less than two (2) times the then current
Annual Rental due under this Lease; (ii) to which Tenant shall sell all or
substantially all of Tenant's stock or assets, provided that the assignor Tenant
and such assignee shall have (immediately after such sale) a combined net worth
equal to not less than the assignor's net worth immediately preceding the
assignment; and/or (iii) which controls, is controlled by, or is under common
control with, Tenant, provided that, in any of the events referred to in clauses
(i), (ii) and (iii) above, such merger, consolidation or transfer shall be for a
valid business purpose and not principally for the purpose of transferring this
Lease. In all other instances, Tenant shall have the right to assign this Lease,
provided that Tenant shall have obtained the prior consent of Landlord thereto,
which consent shall not be unreasonably withheld or unduly delayed, unless
Landlord shall have the right to withhold its consent pursuant to the provisions
of Subsection 16.01(c) below. Provided that Tenant's request for Landlord's
consent to such proposed assignment shall state that Landlord shall be deemed to
have granted such consent if Landlord does not respond to said request within
ten (10) business days, then, if Landlord shall fail to consent to a proposed
assignment or to notify Tenant in reasonable detail of Landlord's reasons for
refusing to consent to any proposed assignment of this Lease within ten (10)
business days after Tenant shall have requested such consent and furnished to
Landlord the information and statement required pursuant to Subsection 16.01(c)
below, then Landlord shall be deemed to have consented to such proposed
assignment. For purposes of this Lease, without limiting the
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nature of what constitutes acceptable evidence, Landlord agrees that the
certified statement of a certified public accountant (from a firm which shall be
comprised of not less than twenty five (25) accountants) attesting to the "net
worth" or the "net operating income" of the Tenant, assignee or subtenant,
respectively, computed in accordance with generally accepted accounting
principles, shall (except for the purpose of releasing assignor Tenant from its
obligations hereunder in the case of an assignment to a person which has a net
worth of $300,000,000, as provided in Subsection 16.01(b) below) be deemed
conclusive and binding evidence of the same.
(b) Any assignment or transfer, whether made with Landlord's consent
or without Landlord's consent pursuant to this Article 16 (excluding, however,
assignments by operation of law or which otherwise become effective without an
instrument of assignment), shall be made only if, and shall not be effective
until, Tenant shall deliver to Landlord a duplicate original instrument of
assignment, duly executed and acknowledged by Tenant, and assumption, duly
executed and acknowledged by the assignee, whereby the assignee shall assume the
obligations of this Lease on the part of Tenant to be performed or observed ((x)
in the case of a merger or consolidation pursuant to clause (i) of Subsection
16.01(a) above, from the Commencement Date, and (y) in the case of any other
assignment, only from the effective date of such assignment), and whereby the
assignee shall agree that the provisions of this Article 16 shall,
notwithstanding such assignment or transfer, continue to be binding upon the
assignee with respect to all future assignments and transfers. The original
named Tenant covenants that, notwithstanding any assignment or transfer, whether
or not in violation of the provisions of this Lease, and notwithstanding the
acceptance of Annual Rental and/or Additional Rent by Landlord from the
assignee, transferee or any other party, the original named Tenant shall remain
fully liable for the payment of the Annual Rental and Additional Rent provided
in this Lease and for the performance and observance of all other obligations
provided in this Lease to be performed or observed by Tenant. Notwithstanding
anything in the foregoing sentence to the contrary, if Tenant shall assign all
of its interest in this Lease to an assignee which shall have a net worth of not
less than Three Hundred Million ($300,000,000) Dollars, and Tenant shall give
Landlord reasonable evidence thereof, and the assignee shall have as of the
effective date of the assignment an S&P Senior Long Term Debt rating of BBB or
higher, then Tenant (including the initially named Tenant herein as well as all
successors, if any, to Tenant's interest herein, other than such assignee) shall
be released from all obligations to be performed or observed by Tenant under
this Lease from and after the effective date of the assignment and assumption
agreement described in this Subsection 16.01(b). If the original named Tenant
assigns this Lease in accordance with this Article 16 but is not released from
liability hereunder, Landlord shall give the original named Tenant a copy of
each notice of default given by Landlord to the then current tenant under this
Lease at the same time as any such notice shall be given to the then current
tenant. Landlord shall not have any right to terminate this Lease, or otherwise
to exercise any of its rights and remedies hereunder, after a default by such
current tenant, unless and until (i) the original named Tenant receives a copy
of the default notice in question, and (ii) the original named Tenant has an
opportunity to remedy such default within the time periods set forth in Article
13 above. Landlord shall accept timely performance by the original named Tenant
of any term, covenant, provision or agreement contained herein on the then
current tenant's part to be observed and
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performed with the same force and effect as if performed by the then current
tenant. If the original named Tenant shall cure the default by such current
tenant, or if the default shall be incurable (such as bankruptcy), and Landlord
or the current tenant seeks to terminate this Lease, then the original named
Tenant shall have the right to resume actual possession of the Premises for the
unexpired balance of the term of this Lease upon all of the then executory terms
of this Lease.
(c) With respect to any proposed assignment for which Landlord's
consent is required pursuant to Subsection 16.01(a) above, Tenant shall furnish
to Landlord, simultaneously with Tenant's request for such consent, reasonable
evidence of the proposed assignee's net worth (or, if the proposed assignee is a
partnership or similar entity, the proposed assignee's net operating income),
together with a statement by the proposed assignee as to the name and then
current address of the proposed assignee, the nature of the assignee's business
and the proposed assignee's intended use of the Premises. Landlord shall have
the right to withhold consent to the proposed assignment only if (i) on the date
that Tenant requests Landlord's consent to the proposed assignment, the proposed
assignee's net worth is less than the "Minimum Net Worth" (defined below) (or,
if the proposed assignee is a partnership or similar entity, if the proposed
assignee's aggregate net operating income for the previous year shall be less
than two (2) times the then current Annual Rental), (ii) the proposed assignee's
intended use of the Premises would violate the provisions of Article 7 above,
(iii) the proposed assignee (or any Affiliate thereof) has ever been convicted
of any felony, (iv) the proposed assignee (or any Affiliate thereof) has been
indicted on any felony charge during the five (5) years preceding the proposed
assignment, or (v) the proposed assignee (or any Affiliate thereof) has been the
subject of any voluntary or involuntary bankruptcy, insolvency, reorganization
or similar proceedings of the type described in Section 14.01 above during the
five (5) years preceding the proposed assignment (provided that, in the case of
an involuntary bankruptcy proceeding, the same shall not have been dismissed
within one hundred twenty (120) days after the commencement of such proceeding)
(the criteria set forth in the foregoing clauses (ii) through (v) being
collectively referred to as the "Use and Character Criteria"). For the purposes
hereof, the term "Minimum Net Worth" shall mean: (x) $15,000,000 during the
period commencing on the Commencement Date and continuing to the twentieth
(20th) anniversary of the Commencement Date, (y) $20,000,000 during the period
commencing on the twentieth (20th) anniversary of the Commencement Date and
continuing to the Expiration Date, and (z) $25,000,000 during the Renewal Term,
if this Lease shall have been renewed for the Renewal Term). Landlord shall also
have the right to withhold consent to the proposed assignment if there shall
then exist an uncured Event of Default.
Section 16.02. Subletting by Tenant. (a) Tenant shall have the right,
without being required to obtain Landlord's consent, to sublet all or any
portion of the Premises. Tenant shall give Landlord prior written notice of a
subletting of all or substantially all of (i) the entire Premises, (ii) the
office portion of the Premises or (iii) the retail portion of the Premises.
Landlord shall have no recapture or profit-sharing rights with respect to any
subletting.
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(b) Each sublease will terminate at least one day prior to the date
of Lease Termination.
(c) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until Tenant shall deliver to
Landlord either a duplicate original or a conformed copy of the sublease.
(d) Each sublease shall provide that it is subject and subordinate
to this Lease and to the matters to which this Lease is or shall be subordinate,
and that, in the event of termination, reentry or dispossession by Landlord
under this Lease, Landlord may, at its option (subject, however, to the
provisions of Subsection 16.02(f) below), succeed to the right, title and
interest of Tenant, as sublessor, under such sublease, and such subtenant shall,
at Landlord's option (subject, however, to the provisions of Subsection 16.02(f)
below), attorn to Landlord pursuant to the then executory provisions of such
sublease, except that Landlord shall not be (A) liable for any previous act or
omission of Tenant under such sublease, (B) subject to any credit, offset,
claim, counterclaim, demand or defense which such subtenant may have against
Tenant, (C) bound by any previous modification of such sublease unless a
duplicate original or conformed copy of such modification has been delivered to
Landlord promptly after execution or by any previous prepayment of more than one
month's rent, (D) bound by any covenant of Tenant to undertake or complete any
construction of the Premises or any portion thereof, (E) required to account for
any security deposit of the subtenant other than any security deposit actually
delivered to Landlord by Tenant, or (F) bound by any obligation to make any
payment to such subtenant or grant any credits, except for services, repairs,
maintenance and restoration provided for under the sublease to be performed
after the date of such attornment.
(e) Each sublease which permits further assignment or subletting
shall provide that the subtenant may not assign its rights thereunder or further
sublet the space demised under the sublease, in whole or in part, without first
delivering to Landlord a duplicate original or conformed copy of any instrument
of assignment or subletting, as the case may be.
(f) Subject to the provisions of this Subsection 16.02(f), Landlord
shall, upon the request of Tenant, enter into a nondisturbance agreement (an
"NDA"), reasonably satisfactory to Landlord and the subtenant stating that, in
the event of the termination of this Lease by reason of the default of Tenant
hereunder, so long as there shall be no default by such subtenant under its
sublease beyond any applicable grace period set forth in the sublease for the
curing of such default, Landlord shall not disturb such subtenant's possession
of the subleased premises, provided that such subtenant shall attorn to and
recognize Landlord as its landlord under the sublease. Landlord shall not be
obligated to enter into an NDA, unless: (i) the sublease, if of office space:
(x) is for a full floor or more; and (y) has a rent if converted to a square
foot net lease basis (i.e., rent plus real estate taxes and operating expenses)
equal to or greater than the net rent plus Real Estate Taxes and operating
expenses payable by Tenant hereunder, or, alternatively, requires the subtenant,
should it ever attorn to Landlord, to pay to Landlord per rentable square foot
the same Annual Rental, Real Estate Taxes and operating expenses that
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Tenant would have paid with respect to the sublease premises; and (ii) the
sublease, if of retail space, has a rent and additional rent obligation that is
at or above market for comparable retail space in SoHo, or, alternatively,
requires the subtenant, should it ever attorn to Landlord, to pay to Landlord a
rent and additional rent obligation that is at market for comparable retail
space in SoHo. Notwithstanding anything to the contrary set forth herein, any
NDA delivered by Landlord pursuant to this Subsection 16.02(f) shall, pursuant
to this Lease, be conditional and by its terms expressly contain the condition,
such that, in the event of any termination of this Lease (as to all or a portion
of the Premises) other than by reason of Tenant's default (e.g., by reason of a
casualty during the last two years of the Term), any NDA with a subtenant which
occupies the space with respect to which this Lease is terminated shall,
automatically and without further act of the parties, terminate and be of no
further force or effect from and after the applicable termination date. Upon the
attornment and recognition referred to in the foregoing sentences, and the
posting of the security (if any) required pursuant to the provisions of the next
sentence, the sublease shall continue in full force and effect as, or as if it
were, a direct lease between Landlord and such subtenant upon all of the then
executory terms, conditions and covenants as are set forth in such sublease,
except as set forth in the next sentence and further except that Landlord shall
not be: (A) liable for any previous act or omission of Tenant under such
sublease, (B) subject to any credit, offset, claim, counterclaim, demand or
defense which such subtenant may have against Tenant, (C) bound by any previous
modification of such sublease unless a duplicate original or conformed copy of
the modification has been delivered to Landlord promptly after execution, (D)
bound by any covenant of Tenant to undertake or complete any construction of the
Premises or any portion thereof, (E) required to account for any security
deposit of the subtenant other than any security deposit actually delivered to
Landlord by Tenant, (F) bound by any obligation to make any payment to such
subtenant or grant any credits, except for services, repairs, maintenance and
restoration provided for under the sublease to be performed after the date of
such attornment, or (G) bound by any rent which such subtenant might have paid
to any Tenant for more than one month in advance. The foregoing NDA shall be
(and shall provide that it is) subject to the condition that the subtenant (on
the effective date of said attornment) shall have a net worth or shall deposit
security in lieu thereof (which security may be in the form of cash or a letter
of credit substantively similar to the letter of credit described in Article 32
below) in accordance with the following formula: (I) if the subtenant's net
worth shall be not less than an amount equal to twice the sum of the Annual
Rental, Real Estate Taxes and operating expenses payable pursuant to this Lease
(pro rated on a rentable square foot basis for the subleased premises) for the
calendar year in which said attornment shall become effective (such amount being
referred to herein as "Threshold Rental"), no security shall be required; and
(II) if the subtenant's net worth shall be less than one hundred (100%) percent
of Threshold Rental, then the subtenant shall be required to deposit security
equal to fifty (50%) percent of Threshold Rental.
(g) Affiliates of Tenant shall be permitted to occupy the Premises
(or portions thereof) without such occupancy being deemed an assignment of this
Lease or a subletting of the Premises (or portions thereof).
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Section 16.03. Partnership Tenant. Notwithstanding anything to the
contrary contained in this Lease, if Tenant's interest in this Lease shall be
assigned to a partnership, the partners of such partnership Tenant shall have no
personal liability with respect to any of the provisions of this Lease, and if
such partnership Tenant shall be in breach or shall default with respect to its
obligations under this Lease, Landlord shall look solely to the assets of such
partnership Tenant for the satisfaction of Landlord's remedies, and in no event
shall Landlord attempt to secure any personal judgment against any constituent
partner of such partnership Tenant by reason of such default by such partnership
Tenant.
Section 16.04. Acceptance of Rent. If this Lease shall be assigned,
Landlord may collect rent from the assignee thereof. Landlord may apply the net
amount collected to the Annual Rental and Additional Rent herein reserved, but
(except as otherwise provided elsewhere in this Article 16) no such assignment
shall be deemed a release of Tenant from the performance by Tenant of Tenant's
obligation under this Lease.
ARTICLE SEVENTEEN
LANDLORD'S ACCESS
Section 17.01. Landlord's Access to Premises. Landlord, and Landlord's
employees, agents and contractors, shall have the right to enter and pass
through the Premises or any part or parts thereof (a) during business hours,
unless otherwise consented to by Tenant: (i) to examine the Premises and to show
the Premises to mortgagees and to prospective purchasers, mortgagees or insurers
(and potential lessees during the last two (2) years of the term of this Lease),
and (ii) if and so long as Landlord has exercised its right to manage the
Premises pursuant to Section 5.02(d) hereof, for cleaning and maintenance and
making such repairs, replacements or changes in or to the Premises or its
facilities as may be permitted by this Lease or as may be mutually agreed upon
by the parties; provided, however, that the foregoing shall be done upon
reasonable advance notice to Tenant, in a reasonable manner so as to minimize
interference with Tenant's business operations and, if required by Tenant,
accompanied by a designated representative of Tenant (provided that Tenant makes
such a representative available); and (b) in emergencies. Tenant may designate
one or more areas in the Premises as secure areas, and Landlord shall have no
access thereto without being accompanied by a designated representative of
Tenant (provided that Tenant makes such a representative available) except in
the case of emergencies if Landlord is accompanied by members of the Fire or
Police Department. In connection with any entry onto the Premises permitted
hereunder, Landlord shall use, and/or shall cause Landlord's employees, agents
and contractors to use, best efforts to minimize, and if possible avoid, any
damage to Tenant's property and installations in or about the Premises. Any such
damage shall be repaired promptly by Landlord, at Landlord's expense.
Section 17.02. Limitations on Landlord's Right to Change the Building.
Unless required by Applicable Law or this Lease, and then only to the extent so
required, Landlord shall not,
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without Tenant's consent (which consent shall not be unreasonably withheld or
unduly delayed), make any addition to the Building, or any other improvements on
the Land, or any alteration of the external appearance of the Building, or make
any other alteration or change to the Premises. In addition, Landlord shall not,
at any time during the term of this Lease, construct any additional buildings or
other improvements on the Land, or lease or permit the use or occupancy of any
portion of the Land or any improvements thereon to any party or entity except as
provided in this Lease.
ARTICLE EIGHTEEN
NAME OF BUILDING; SIGNS
Section 18.01. Tenant's Right to Designate Building Name. Tenant shall
have the right, from time to time, to designate, and thereafter change, the name
of the Building, so long as such name shall relate to the name under which
Tenant (or any subtenant or occupant of at least 50% of the office space or at
least 50% of the retail space) is doing business at the time of any such
designation.
Section 18.02. Signs Identifying the Building. Tenant may install,
maintain, repair and replace exterior signs, flag poles and flags, banners,
sculptures and/or graphics identifying the Building and setting forth Tenant's
name and/or logo (or the name or logo of any permitted subtenants of the
Premises), the locations, sizes, materials and designs of such signs, sculptures
and/or graphics to be determined by Tenant in the exercise of Tenant's
reasonable discretion, provided that at any time that appropriate consents and
permits have been obtained under Applicable Law to permit two or more flagpoles
or bannerpoles, the second to southerly most flagpole or bannerpole and, if
Tenant fails or ceases to use the southerly most, the southerly most flagpole or
bannerpole shall be reserved for the use of Landlord's "555 Broadway" banner.
Landlord's "555 Broadway" banner shall be the size of the other banners, if any,
installed by or on behalf of Tenant (or any subtenant), and similar in design
and content to the "555 Broadway" banner heretofore installed. Tenant represents
that it is currently seeking to obtain consent from the Landmarks Preservation
Commission ("LPC") to install four (4) or five (5) flagpoles or bannerpoles on
the Broadway facade of the Building. Until such consent is obtained, Tenant
shall have the exclusive use of the existing flagpole and Tenant may, in
Tenant's discretion, replace Landlord's "555 Broadway" banner heretofore
installed with Tenant's own banner or remove the flagpole entirely.
Section 18.03. Landlord's Exterior Sign. Landlord has the right to affix
to the exterior of the Building a sign in the form, at the location and meeting
the specifications set forth in Exhibit E hereto and which is in accordance with
all applicable governmental laws, rules and regulations (including, without
limitation, those of the LPC).
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ARTICLE NINETEEN
QUIET ENJOYMENT
Section 19.01. Quiet Enjoyment. So long as this Lease is in effect,
Landlord covenants and agrees to take all necessary steps to secure and to
maintain for the benefit of Tenant the quiet and peaceful possession of the
Premises for the term of this Lease, without hindrance, claim or molestation by
Landlord or any other person, subject, nevertheless, to the provisions of this
Lease and to any instrument which is superior hereto.
ARTICLE TWENTY
NON-WAIVER
Section 20.01. Non-Waiver By Either Party. Failure by either party to
complain of any action, nonaction or default of the other party shall not
constitute a waiver of any aggrieved party's rights hereunder. Waiver by either
party of any right in the event of any default of the other party shall not
constitute a waiver of any right for either a subsequent default of the same
obligation or for any other default, past (except to the extent specifically
waived herein), present or future.
ARTICLE TWENTY-ONE
NOTICES; CONSENT TO JURISDICTION
Section 21.01. Notices to Landlord or Tenant. (a) Any notice or
communication ("Notices") to Landlord or Tenant required or permitted to be
given under this Lease shall be effectively given only if in writing and mailed
by United States Registered or Certified Mail, postage prepaid, return receipt
requested, or if delivered by hand or by national overnight courier, addressed
as follows:
If to Tenant, addressed as follows:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
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with a copy of any notice to:
Stroock & Stroock & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.
If to Landlord, addressed as follows:
Ise ▇▇▇ ▇▇▇▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy of any notice to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Either party shall have the right to change the identity of persons to whom and
the address to which Notices shall thereafter be sent by giving Notice to the
other party as aforesaid. Notices shall be deemed given upon receipt (or refusal
to accept, if applicable). Landlord and Tenant shall have the right to designate
their respective mortgagees as additional notice recipients.
(b) With respect to any matter under this Lease where it is provided
that the recipient of a Notice shall be deemed to have consented to the request
set forth therein if such recipient shall fail to respond thereto within a
stated time period, such deemed consent shall not be operative unless such
Notice shall state, in capital letters at the top of such Notice, that the
consent of the recipient will be deemed to have been given if the recipient
fails to respond within the stated time period.
Section 21.02. Consent to Jurisdiction. Landlord and Tenant hereby
irrevocably consent and submit to the jurisdiction of any federal, state, county
or municipal court sitting in the County of New York in respect to any action or
proceeding brought therein by either against the other concerning any matters
arising out of or in any way relating to this Lease. Landlord expressly waives
any rights of Landlord pursuant to the laws of Japan or any other jurisdiction
by virtue of which exclusive jurisdiction of the courts of such other
jurisdiction might be claimed. Landlord and Tenant each (a) irrevocably waives
personal service of any summons and complaint and consent to the service upon
Landlord or Tenant, as the case may be, of process in any such action or
proceeding by the mailing of such process by registered mail, return receipt
requested, to Landlord or Tenant, as the case may be, at the address set forth
above or such other
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address in the New York City metropolitan area that Landlord or Tenant, as the
case may be, may designate for notices from time to time, provided that, with
respect to any time that Landlord or Tenant, as the case may be, does not
maintain offices at a New York City metropolitan area address as set forth
above, Landlord hereby designates ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq. c/o ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & Sanseverino LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (which
designation shall be irrevocable unless Landlord shall have theretofore notified
Tenant of Landlord's similarly irrevocable designation of another
attorney-at-law in the City of New York) and Tenant hereby designates Stroock &
Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn.: ▇▇▇▇▇
▇▇▇▇, Esq. (which designation shall be irrevocable unless Tenant shall have
notified Landlord of Tenant's similar irrevocable designation of another
attorney at law in New York City) to accept service of any process on Landlord's
behalf or Tenant's behalf, as the case may be, and hereby agree that such
service shall be deemed sufficient; (b) irrevocably waives all objections as to
venue and any and all rights Landlord or Tenant, as the case may be, may have to
seek a change of venue with respect to any such act or proceeding; and (c)
agrees that the laws of the State of New York shall govern in any such action or
proceeding and waives any defense to any action or proceeding granted by the
laws of any other country or jurisdiction unless such defense is also allowed by
the laws of the State of New York. Landlord and Tenant further agree that any
action or proceeding by either against the other in respect to any matters
arising out of or in any way relating to this Lease shall be brought only in the
State of New York, County of New York. Notwithstanding anything to the contrary
set forth herein, in the event of a sale or conveyance of Landlord's interest in
the Building to a domestic entity, the designation referred to above shall be
applicable only with respect to such service of process which Tenant shall
desire to make on the initially named Landlord herein (i.e., Ise 555 Broadway,
LLC, or any other entity which would qualify under the "initially named Tenant
herein" definition (substituting the term "Landlord" for "Tenant") as set forth
in Subsection 2.02(c) above). If Landlord's interest in the Building shall be
sold or conveyed to a foreign entity, and such foreign entity shall have entered
into a written agreement with Tenant identifying a substitute agent located in
New York City, then the designation referred to above shall be applicable only
with respect to such service of process which Tenant shall desire to make on the
initially named Landlord herein. Notwithstanding anything to the contrary set
forth herein, in the event of an assignment of Tenant's interest in the Building
to a domestic entity, the designation referred to above shall be applicable only
with respect to such service of process which Landlord shall desire to make on
the initially named Tenant herein (i.e., ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., or any other entity
which would qualify under the "initially named Tenant herein" definition as set
forth in Subsection 2.02(c) above). If Tenant's interest in the Building shall
be assigned to a foreign entity, and such foreign entity shall have entered into
a written agreement with Landlord identifying a substitute agent located in New
York City, then the designation referred to above shall be applicable only with
respect to such service of process which Landlord shall desire to make on the
initially named Tenant herein.
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ARTICLE TWENTY-TWO
PARTIAL INVALIDITY
Section 22.01. Severability Clause. If any term, condition or covenant of
this Lease, or the application thereof to any person or circumstance, shall ever
be held to be invalid or unenforceable, then in each such event the remainder of
this Lease or the application of such term, condition or covenant to any other
person or any other circumstance (other than those as to which it shall be
invalid or unenforceable) shall not be thereby affected, and each term,
condition and covenant hereof shall remain valid and enforceable to the fullest
extent permitted by law.
ARTICLE TWENTY-THREE
BROKERAGE
Section 23.01. Brokerage. Each of Landlord and Tenant represents to the
other that the only brokers and consultants with whom they have dealt with
respect to this Lease are ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III ("▇▇▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇
("▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, Commonwealth Advisors, LLC, and ▇▇▇▇
▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ Realty ("▇▇▇▇▇▇▇▇"). Landlord agrees to pay all commissions
that may be due or owing to Lawrence, Luce and/or any person or entity claiming
a commission or similar fee by, through or under ▇▇▇▇▇▇▇▇ and/or ▇▇▇▇ pursuant
to a separate agreement. Tenant agrees to pay all commissions that may be due or
owing to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ and Commonwealth Advisors pursuant to
separate agreements. Except as has been made the responsibility of the other
party pursuant to the other provisions of this Section 23.01, Landlord and
Tenant each agree to indemnify and hold the other harmless against any claims
for commissions that may be asserted in connection with this Lease arising out
of a breach of the foregoing representation by such party. Tenant agrees to
indemnify and hold Landlord harmless from any claims for brokerage commissions
that may be asserted by ▇▇▇▇▇▇▇, Sachs & Co. or The Lansco Corporation or ▇▇▇▇
▇. ▇▇▇▇▇▇ against Landlord in connection with this Lease. Landlord agrees to
indemnify and hold Tenant harmless from any claims for brokerage commissions
that may be asserted by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc., CB ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Inc. and LaSalle Partners.
ARTICLE TWENTY-FOUR
SUBORDINATION; NON-DISTURBANCE
Section 24.01. Subordination. (a) Subject to the provisions of Section
24.02, this Lease is subject and subordinate to a first mortgage of the fee
estate in the Property in the original principal amount of $34,000,000, dated as
of the date hereof, between Landlord, as mortgagor, and Credit Suisse First
Boston Mortgage Capital LLC, as mortgagee (the "First Mortgage"), and
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to any and all amendments, modifications, refinancings and replacements thereof
(and to any and all amendments and modifications of any and all refinancings and
replacements) in whatever amount, provided:
(i) any refinancing or replacement of the First Mortgage or
any other financing of the Property or Mortgage is with a domestic institutional
lender, or, if a refinancing or replacement of the First Mortgage or any other
financing of the Property or Mortgage, is with a lender other than a domestic
institutional lender, the principal amount of the mortgage upon such refinancing
or replacement or other financing does not exceed 90% of the Fair Market Value
of the Property; and
(ii) at any time during which Landlord has control of
management of the Premises pursuant to the provisions of Section 5.02(d) hereof,
any refinancing or replacement of the First Mortgage then on the Property or any
other financing of the Property or Mortgage (whether or not with a domestic
institutional lender) does not exceed 90% of the Fair Market Value of the
Property.
(b) In the event that the principal balance of a refinanced or
replaced First Mortgage or of any other financing of the Property or Mortgage
exceeds 90% of the Fair Market Value of the Premises and Land and either the
First Mortgage is refinanced or replaced or any other financing of the Property
or Mortgage is (x) with a lender other than a domestic institutional lender or
(y) at any time during which Landlord has control of management of the Premises
pursuant to the provisions of Section 5.02(d) hereof, then this Lease shall be
subject and subordinate to the refinanced or replaced First Mortgage or any
other financing of the Property or Mortgage; provided that Landlord shall
deliver to Tenant an evergreen letter of credit (the "Letter of Credit") issued
by a major money center bank, having an office in New York City which actively
handles commercial letters of credit, in an amount equal to the amount by which
the principal of the refinanced or replaced First Mortgage or any other
financing of the Property or Mortgage exceeds 90% of the Fair Market Value of
the Property. The Letter of Credit shall be substantially in the form attached
hereto as Exhibit F. Tenant shall have recourse against the Letter of Credit, or
any cash into which the Letter of Credit may be converted as a result of a
failure by Landlord to keep the Letter of Credit evergreen, to satisfy any
judgment it may obtain against Landlord for any default by Landlord under this
Lease. If control of management reverts to Tenant or if the principal balance of
the Mortgage becomes less than 90% of the Fair Market Value of the Property, the
Letter of Credit shall be returned to Landlord; provided, however, that Landlord
shall deliver to Tenant the Letter of Credit if the provisions of this
Subsection 24.01(b) shall again become applicable.
(c) If Landlord fails to renew the Letter of Credit at the later of
(i) at least ten (10) business days prior to its expiration or twenty (20)
business days after notice from Tenant that the expiration is less than sixty
(60) calendar days away, Tenant may present the Letter of Credit for payment
and, upon receiving payment, shall deposit the amount thereof in a separate,
interest bearing account in a major money center bank having a branch or main
office in New York City.
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The amount so deposited and the interest thereon shall be held for the same
purposes and turned over to Landlord under the same circumstances as apply
hereunder to the Letter of Credit.
(d) Landlord may, from time to time, grant mortgages or other
security interests covering its fee estate in the Property (collectively, a
"Mortgage"; with the holder of a Mortgage being referred to herein as
"Landlord's Mortgagee"). Subject to the provisions of this Section 24.01 and
Section 24.02, this Lease and all rights of Tenant hereunder shall be subject
and subordinate to any ground leases, overriding leases, underlying leases, and
any Mortgage, including any modifications, replacements, extensions or renewals
thereof and advances thereunder, from time to time in effect. Within thirty (30)
days after request by Landlord, Tenant agrees to execute a subordination and
non-disturbance agreement, confirming the provisions of Subsections 24.01(a) and
(d) and Section 24.02 below, in form and substance reasonably acceptable to
Tenant.
Section 24.02. Non-disturbance. (a) The subordination of this Lease to any
ground lease, overriding lease, underlying lease or Mortgage referred to in
Section 24.01 is expressly conditioned on the lessor or holder thereof expressly
agreeing to execute and deliver a subordination, nondisturbance and attornment
agreement with Tenant substantially in the form annexed hereto as Exhibit G and
made a part hereof, but in no event shall such agreement impose any greater
burden or obligations on Tenant or reduce any rights of Tenant beyond those set
forth in Exhibit G (such agreement, an "SNDA"), to the effect that (i) Tenant
will not be named or joined in any proceeding (or trustee's sale) to terminate
such lease or reenter the premises thereof, or to enforce or foreclose the
Mortgage unless such be required by law, provided that such proceeding shall not
derogate the rights of Tenant under this Lease or the use and occupancy by
Tenant (or its permitted assignees and subtenants) of the Premises, (ii)
enforcement of any such lease or Mortgage shall not terminate this Lease or
disturb Tenant in the possession or use of the Premises, (iii) any party
succeeding to the interest of Landlord as a result of the termination of such
lease or the lessor's reentry onto the premises thereof, or of the enforcement
or foreclosure of the Mortgage shall be bound to Tenant, and Tenant shall be
bound to such party, under all of the terms, covenants and conditions of this
Lease, for the balance of the term of this Lease, including the Renewal Term
(except as expressly set forth in Subsection 24.02(c) below), (iv) Tenant
acknowledges the subordination referred to in Section 24.01, if requested by
Landlord's Mortgagee or superior lessor, (v) insurance proceeds and Awards shall
be first applied as provided in this Lease, and (vi) the Mortgage shall be
subject and subordinate to the Easements Agreement.
(b) If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to ▇▇▇▇▇ or offset against the payment of rent or to claim a partial
or total eviction, Tenant shall not exercise such right (i) until Tenant shall
have given notice of such act or omission to Landlord and to each Landlord's
Mortgagee and each superior lessor who has entered into an SNDA with Tenant, and
whose then current name and address shall previously have been furnished to
Tenant, (ii) with respect to a notice of cancellation or termination, until the
period which is five (5) business days
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(in the case of monetary defaults) or thirty (30) days (in the case of
non-monetary defaults) beyond the date to which Landlord would be entitled under
this Lease, after similar notice, to effect such remedy, shall have elapsed
following the giving of such notice, provided that (x) such Landlord's Mortgagee
or superior lessor shall with due diligence give Tenant notice of intention to,
and promptly commence and with due diligence continue to, remedy such act or
omission, and (y) such remedy shall be within five (5) business days (in case of
monetary defaults) or thirty (30) days (in case of non-monetary defaults) after
expiration of any time period available to Landlord (and subject to the same
obligations applicable to Landlord) under the terms of this Lease or by law to
effect a cure thereof, and (iii) with respect to a notice of abatement or offset
or notice of partial or total eviction, until the period to which Landlord would
be entitled under this Lease, after similar notice, to effect such remedy, shall
have elapsed following the giving of such notice, provided that (x) such
Landlord's Mortgagee or superior lessor shall with due diligence give Tenant
notice of intention to, and promptly commence and with due diligence continue
to, remedy such act or omission, and (y) such remedy shall be within the same
time period available to Landlord (and subject to the same obligations
applicable to Landlord) under the terms of this Lease to effect a cure thereof.
Nothing contained in this Subsection 24.02(b) shall be deemed to permit or
require the further extension of the cure periods beyond the applicable cure
periods provided herein, including, without limitation, in the event (i) of
force majeure, (ii) such Landlord's Mortgagee or superior lessor shall have
commenced to cure a default within the applicable time period but shall not have
prosecuted the same to completion within said time period, and/or (iii)
possession of the Premises or the mortgaged property is required in order for
such Landlord's Mortgagee or superior lessor to cure such default, or such
default is not susceptible of being cured by such Landlord's Mortgagee or
superior lessor. The aforesaid notice to Landlord's Mortgagees and superior
lessors may be given by Tenant to any such Landlord's Mortgagee or lessor
simultaneously with the giving of such notice to Landlord, or at any time
thereafter.
(c) Supplementing the provisions of Subsection 24.02(a) above, if
any superior lessor or Landlord's Mortgagee who has entered into an SNDA with
Tenant, or any designee of any such lessor or Landlord's Mortgagee, shall
succeed to the rights of Landlord under this Lease, whether through possession
or foreclosure action or delivery of a new lease or deed, then such party so
succeeding to Landlord's rights (herein called "Successor Landlord") and Tenant
shall enter into a written agreement whereby such Successor Landlord agrees to
accept Tenant's attornment and Tenant agrees to attorn to and recognize such
Successor Landlord as Tenant's landlord under this Lease. Upon such attornment,
this Lease shall continue in full force and effect as a direct lease between the
Successor Landlord and Tenant upon all of the terms, conditions and covenants as
are set forth in this Lease as if the Successor Landlord were the original
landlord under this Lease, except that the Successor Landlord shall not be (i)
bound by any payments of rent which Tenant might have made for more than one (1)
month in advance to Landlord (or Landlord's predecessors in interest), (ii)
liable to pay damages to Tenant for any breach, act, or omission or negligence
of any prior Landlord (including the then defaulting Landlord), but shall
nonetheless remain subject to any and all abatements, deductions, offsets,
claims, counterclaims and/or defenses which shall have accrued to Tenant against
any prior
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landlord (including the then defaulting Landlord) prior to the date that
Successor Landlord shall have succeeded to the rights of Landlord under this
Lease, but in any case, provided, however, such non-liability for damages shall
neither diminish Successor Landlord's liability for continuing obligations of
Landlord nor diminish Tenant's rights under this Lease with respect to the
continuing failure of Successor Landlord to perform the Landlord's obligations
under this Lease after the date that Successor Landlord succeeds to the interest
of Landlord under this Lease; or (iii) bound by any agreement amending this
Lease made without the Successor Landlord's consent (but only to the extent that
such amendment shall increase Successor Landlord's obligations or decrease
Tenant's obligations under this Lease).
(d) If requested to do so by a first Landlord's Mortgagee who shall
have entered, or then be entering, into an SNDA with Tenant, Tenant shall agree
to make reasonable changes to this Lease, provided that such changes
(individually or collectively) shall not (i) increase or decrease the term of
this Lease or increase the rental, or (ii) increase any of Landlord's rights
under this Lease, or (iii) increase (except to a de minimis extent) any of
Tenant's obligations under this Lease.
ARTICLE TWENTY-FIVE
[Intentionally Omitted]
ARTICLE TWENTY-SIX
ARBITRATION OF DISPUTES
Section 26.01. Arbitration. (a) All disputes and determinations under this
Lease which are specifically stated to be determined pursuant to this Article
Twenty-Six or to be determined by arbitration shall be determined by arbitration
conducted in New York, New York, as follows. The party desiring such arbitration
shall give notice to the other party. If the parties shall not have agreed on a
choice of an arbitrator within fifteen (15) days after the service of such
notice, then either party, on behalf of both, may request that the New York
office of the American Arbitration Association ("AAA") appoint an arbitrator to
render a resolution of said dispute or to make the determination in question. In
the absence or failure, refusal or inability of AAA to act within twenty (20)
days, then either party, on behalf of both, may apply to a Justice of the
Supreme Court of New York, New York County, for the appointment of an
arbitrator, and the other party shall not raise any question as to the court's
full power and jurisdiction to entertain the application and make the
appointment. In the event of the failure, refusal or inability of an arbitrator
to act, a successor shall be appointed within ten (10) days as hereinbefore
provided. Notwithstanding the foregoing, if a determination of Fair Rental
Value, fair market value or the value of either Landlord's or Tenant's estate in
the Premises is the issue to be arbitrated or involved in the matter being
arbitrated, each arbitrator selected or appointed pursuant to this
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Section 26.01 shall be an appraiser, a member of the American Institute of Real
Estate Appraisers (or a successor organization), and shall have been engaged in
appraisals with respect to office properties in lower Manhattan for a period of
at least ten (10) years before the date of his appointment. Any arbitrator
acting under this Section 26.01 in connection with any other matter shall be
experienced in the issue with which the arbitration is concerned and shall have
been actively engaged in such field for a period of at least ten (10) years
before the date of his appointment as arbitrator hereunder.
(b) All arbitrators chosen or appointed pursuant to this Article 26
shall (x) be sworn fairly and impartially to perform their duties as such
arbitrator, and (y) not be an employee or past employee of Landlord or Tenant or
their respective Affiliates. Within sixty (60) days after the appointment of
such arbitrator, such arbitrator shall determine the matter which is the subject
of the arbitration and shall issue a written opinion. The decision of the
arbitrator shall be conclusively binding upon the parties, and judgment upon the
decision may be entered in any court having jurisdiction; provided, however,
that with respect to a dispute or question regarding a determination of Fair
Rental Value or the value of either Landlord's or Tenant's interest in the
Premises, the arbitrator must select one or the other of the valuations of
Landlord and Tenant, and the decision so made by the arbitrator shall in all
cases be conclusively binding upon the parties, and judgment upon the decision
may be entered in any court having jurisdiction. Except with respect to an
arbitration involving the determination of Fair Rental Value or fair market
value, the losing party shall pay the fees and expenses of all arbitrators
acting under this Section 26.01.
(c) Landlord and Tenant agree to sign all documents and to do all
other things necessary to submit any such matter to arbitration and further
agree to, and hereby do, waive any and all rights they or either of them may at
any time have to revoke their agreement hereunder to submit to arbitration and
to abide by the decision rendered thereunder. For such period, if any, as this
agreement to arbitrate is not legally binding or the arbitrator's award is not
legally enforceable, the provisions requiring arbitration shall be deemed
deleted and matters to be determined by arbitration shall be subject to
litigation.
(d) Any dispute or determination under this Lease which is
specifically stated to be determined pursuant to Expedited Arbitration or where
either party shall have the right to submit a dispute relating to the
reasonableness of the grant or denial of a consent by the other party to binding
arbitration, such dispute shall be determined under the Expedited Procedures
provisions (Rules 56 through 60 in the April 1, 1997 edition) of the Arbitration
Rules for the Real Estate Industry of AAA ("Expedited Arbitration"). In cases
where the parties utilize such arbitration: (i) the parties will have no right
to object if the arbitrator so appointed was on the list submitted by the AAA
and was not objected to in accordance with Rule 54, (ii) the first hearing shall
be held within seven (7) business days after the appointment of the arbitrator,
(iii) if the arbitrator shall find that a party acted unreasonably in
withholding or delaying a consent or approval, such consent or approval shall be
deemed granted, and (iv) the losing party in such arbitration shall pay the
arbitration costs charged by AAA and/or the arbitrator.
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Section 26.02. Payment of Expenses in Certain Circumstances. (a) Whenever
Landlord (i) is requested to give an approval or consent pursuant to any
provision of this Lease (or other document related to the Premises or Tenant's
rights hereunder, e.g., the Amended and Restated Easements Agreement dated as of
August 1, 1999) or (ii) is required to enter into an NDA, Tenant shall pay for,
or reimburse Landlord for, Landlord's reasonable out-of-pocket costs in
reviewing or preparing plans or documents, including reasonable professional
fees (such as legal, architectural, engineering, etc.) actually incurred.
(b) If Landlord unreasonably withholds an approval or consent under
circumstances where Landlord may not unreasonably withhold an approval or
consent, then, notwithstanding Subsection 26.02(a)(i) above, Tenant shall not be
obligated to pay Landlord's legal fees and Landlord shall be obligated to pay
Tenant's reasonable legal fees incurred in connection with the proceeding
brought to establish Tenant's entitlement to the approval or consent.
Conversely, if a proceeding establishes that Landlord acted reasonably in
withholding its approval or consent, Tenant shall pay Landlord's reasonable
legal fees incurred in the proceeding.
ARTICLE TWENTY-SEVEN
ENVIRONMENTAL MATTERS
Section 27.01. Tenant's Covenants. Tenant covenants and agrees that Tenant
will not cause or permit the storage, treatment or disposal on, under or about
the Building, or transport to or from the Building any "Hazardous Materials"
(which term shall mean substances defined as "hazardous wastes" or "toxic
substances" in the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss.6901, et seq.,) or any other substances similarly
defined pursuant to federal law and the laws of the State or City of New York in
violation of Applicable Laws. In the event of a breach of the provisions of this
Section 27.01, Landlord shall have the right, in addition to all other rights
and remedies available to it under this Lease or at law, to require Tenant to
remove or remediate any such Hazardous Materials from the Premises in the manner
prescribed for such removal by Applicable Laws. The provisions of this Section
27.01 shall survive the expiration of this Lease.
Section 27.02. Indemnity. Tenant hereby indemnifies, saves and holds
harmless Landlord from and against any and all costs, claims, damages,
liabilities, losses and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) suffered or incurred by Landlord and arising
from Tenant's breach of its covenants and/or agreements contained in this
Article 27.
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ARTICLE TWENTY-EIGHT
REPRESENTATIONS AND WARRANTIES OF LANDLORD; INDEMNITIES
Section 28.01. Representations and Warranties of Landlord. (a)
Notwithstanding anything herein contained to the contrary, Landlord represents
and warrants to, and covenants with, Tenant that the following are true on the
Commencement Date: (i) Landlord owns fee title to the Land and Building, free
and clear of liens, mortgages, encumbrances, claims, agreements, covenants,
restrictions, easements, liens, or other matters affecting title to the Land and
Building, except as set forth on Exhibit H annexed hereto; (ii) no persons or
entities, other than Tenant and subtenants of Tenant, shall have any right to
possession or use of all or any part of the Premises from and after the
Commencement Date, other than as expressly set forth elsewhere in this Lease;
(iii) no person has an option to purchase all or any part of the Property; (iv)
no lien or encumbrance, other than Real Estate Taxes which are not yet due and
payable and the matters set forth on Exhibit H annexed hereto, has been levied
or assessed against, or imposed upon, the Property; (v) Landlord has no
knowledge of any pending or threatened proceeding or public improvements which
might result in the levy of any special assessment against the Property; (vi)
there is no pending eminent domain proceeding affecting the Property, and
Landlord has received no notice of any pending or threatened eminent domain
proceeding; and (vii) there are no claims, actions, proceedings, orders or
disputes pending, or to the knowledge of Landlord, threatened against or
affecting the Property or Landlord's interest therein and there are no existing
orders, judgments or decrees of any court or governmental authority affecting
the Property or Landlord's interest therein.
(b) Landlord represents and warrants to Tenant:
(i) That, to the best of Landlord's knowledge, there are no
actions, suits or proceedings pending or, to the knowledge of Landlord,
threatened against or affecting Landlord, at law or in equity or before any
governmental authority which would impair Landlord's ability to perform
Landlord's obligations under this Lease;
(ii) That this Lease has been duly authorized, executed and
delivered by Landlord, and (subject to the provisions hereof) constitutes the
legal, valid and binding obligation of Landlord; and
(iii) That, to the best of Landlord's knowledge, the
consummation of the transactions hereby contemplated and the performance of this
Lease will not result in any breach or violation of, or constitute a default
under any lease, bank loan or credit agreement to which Landlord is a party.
Section 28.02. Negative Covenants. Except as otherwise expressly provided
in this Lease, Landlord covenants and agrees that from and after the date
hereof, if the same would (other than in a de minimis manner) reduce the value
of the Property, Landlord shall not: (i)
-52-
create or permit to be created any lien, encumbrance, easement, covenant,
restriction or any other matter of record against the Premises or the Property
(it being agreed by the parties hereto that any financing or refinancing of the
Building shall not be deemed to reduce the value of the Property); (ii) modify,
amend, terminate, suspend or otherwise impair the certificate of occupancy for
the Building; or (iii) amend, modify, terminate or otherwise impair any
covenant, agreement, easement or other matter listed in Exhibit H annexed
hereto. Supplementing the foregoing, except to the extent then required by
Applicable Law, Landlord shall not (except as expressly permitted elsewhere in
this Lease) violate any of the foregoing covenants contained in clauses (i)
through (iii) above, if violation thereof would (other than in a de minimis
manner) adversely affect Tenant's use of the Premises or adversely affect
Tenant's rights under this Lease.
Section 28.03. Landlord's Indemnity. Landlord hereby indemnifies, saves
and holds Tenant harmless from and against any and all liability, damages,
claims, losses, costs and expenses (including, without limitation, reasonable
attorneys' fee and disbursements) suffered or incurred by Tenant and to the
extent arising out of or in connection with the breach of any representations,
warranties, agreements and/or covenants of Landlord under this Article 28.
Section 28.04. Tenant's Indemnity. Tenant hereby indemnifies, saves and
holds Landlord harmless from and against any and all liability, damages, claims,
losses, costs and expenses (including, without limitation, reasonable attorneys'
fees and disbursements) suffered or incurred by Landlord and to the extent
arising out of or in connection with (i) the breach of any representations,
warranties, agreements and/or covenants of Tenant under Subsection 31.01(m)
below, or (ii) the existence of one or more conditions which are the subject of
such representations and warranties (regardless of whether the existence of such
condition(s) constitutes a breach of such representations or warranties).
ARTICLE TWENTY-NINE
LANDLORD'S LIABILITY
Section 29.01. Landlord's Liability. Tenant shall look only to Landlord's
estate, interest and property in the Property (including for these purposes, if
applicable, the Letter of Credit described in Section 24.01(b) or cash proceeds
thereof) for the satisfaction of Tenant's remedies hereunder or, for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default by Landlord hereunder, and no
other property or assets of Landlord or of Landlord's partners, officers,
directors, shareholders or principals, disclosed or undisclosed, shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder or Tenant's use or occupancy of the Premises.
Landlord's estate, interest and property in the Property shall include (from and
after the date of such default, act or omission by Landlord) all rents received
by Landlord with respect to the Property (or any portion thereof), the
consideration or proceeds of any sale or other conveyance of Landlord's estate,
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interest and property in the Property (or any portion thereof), the proceeds of
a financing or refinancing received by Landlord from the grant of any mortgage
interest in Landlord's estate, interest and property in the Property (or any
portion thereof), and any insurance proceeds or Awards relating to the Property,
to the extent not previously applied to the restoration of the Property. For the
purposes of this Section 29.01, the terms "consideration" and "proceeds" of a
sale, conveyance or financing shall not include the amount of indebtedness,
theretofore secured by a third-party mortgage lien against the Property, repaid
by such consideration or proceeds.
ARTICLE THIRTY
Intentionally Omitted
ARTICLE THIRTY-ONE
MISCELLANEOUS
Section 31.01. Certain Miscellaneous Provisions. (a) This Lease (including
the Exhibits referred to herein and all supplementary agreements provided for
herein) and the Easements Agreement contain the entire agreement between the
parties, and except for the Easements Agreement, all prior negotiations and
agreements are merged into this Lease.
(b) This Lease may not be changed, modified, terminated or
discharged, in whole or in part, except by a writing, executed by the party
against whom enforcement of the change, modification, termination or discharge
is sought.
(c) The Article and Section headings or titles in this Lease are
inserted for convenience only and are not to be given any effect in its
construction.
(d) Wherever appropriate in this Lease, personal pronouns shall be
deemed to include the other genders and the singular to include the plural.
(e) The covenants and agreements contained herein shall inure to and
be binding upon Landlord, its successors and assigns, and Tenant, its successors
and assigns.
(f) Except as expressly set forth herein or in any SNDA, any party
succeeding to or acquiring any part of the interest of any party "Landlord"
hereunder shall automatically take the same subject to such liability and
indebtedness to Tenant as said party "Landlord" may have had under this Lease
prior to said successor party's acquisition or succession, subject, however, to
any valid defenses or offsets that would have been available to such party
"Landlord" under this Lease.
-54-
(g) The term "Prime Rate" shall mean the rate of interest announced
publicly by Citibank, N.A., or its successor, from time to time, as the rate of
interest to its most credit-worthy customers on commercial loans having a
duration of ninety (90) days.
(h) The term "Excusable Delays" as used in this Lease shall mean any
delay due to strikes, lockouts or other labor or industrial disturbance, civil
disturbance, future order of any government, court or regulatory body claiming
jurisdiction, act of the public enemy, war, riot, sabotage, blockade, embargo,
inability to secure materials, supplies or labor though ordinary sources by
reason of shortages or priority or similar regulation or order of any
government, court or regulatory body, lightning, earthquake, fire, storm,
hurricane, tornado, flood, washout, explosion, or any cause whatsoever beyond
the reasonable control of the party from whom performance is required, or any of
its contractors or other representatives, whether or not similar to any of the
causes hereinabove stated; provided, however, that for purposes of this
definition, a party's lack of funds shall not be deemed to be a cause beyond the
control of such party.
(i) The term "person" shall mean any natural person or persons, a
partnership, a corporation, and any other form of business or legal association
or entity, unless otherwise expressly stated. An "Affiliate" of a particular
person shall mean any other person which controls, is controlled by or is under
common control with, the particular person.
(j) The term "Tenant" shall mean the Tenant herein named or any
assignee or other successor in interest (immediate or remote) of the Tenant
herein named, which at the time in question is the owner of the Tenant's estate
and interest granted by this Lease; but the foregoing provisions of this
Subsection (j) shall not be construed to permit any assignment of this Lease or
to relieve the Tenant herein named or any assignee or other successor in
interest (whether immediate or remote) of the Tenant herein named from the full
and prompt payment, performance and observance of the covenants, obligations and
conditions to be paid, performed and observed by Tenant under this Lease, except
as specifically set forth elsewhere in this Lease.
(k) The term "Landlord" shall mean only the owner, at the time in
question, of the Building, or Landlord's interest in a superior lease of the
Building, so that in the event of any transfer or transfers of title to the
Building or of Landlord's interest in a superior lease of the Building, the
transferor shall be and hereby is relieved and freed of all obligations of
Landlord under this Lease accruing after such transfer, provided that such
transferee shall have entered into a written agreement with Tenant whereby such
transferee shall assume and agree to perform and observe all obligations of
Landlord herein during the period that such transferee is the holder of
Landlord's interest under this Lease. The foregoing provisions shall not be
construed to permit any transfer by Landlord except as specifically set forth
elsewhere in this Lease.
(l) The primary remedies of a party in cases where such party
disputes the other's reasonableness in exercising its judgment or withholding or
delaying any consent or approval expressly required pursuant to a specific
provision of this Lease shall be those remedies in the nature of an injunction,
declaratory judgment or specific performance, or arbitration as set forth
-55-
in Subsection 26.01(d) above; and such party's right to seek money damages shall
be limited to actual compensatory damages, and shall be available only in
instances where (i) said primary remedies shall be unavailable or inadequate, or
(ii) the party whose reasonableness is being disputed shall have acted in bad
faith.
(m) Tenant represents and warrants:
(i) That, to the best of Tenant's knowledge, there are no
actions, suits or proceedings pending or, to the knowledge of Tenant, threatened
against or affecting Tenant, at law or in equity or before any governmental
authority which would impair Tenant's ability to perform its obligations under
this Lease;
(ii) That this Lease has been duly authorized, executed and
delivered by Tenant, and (subject to the provisions hereof) constitutes the
legal, valid and binding obligation of Tenant; and
(iii) That, to the best of Tenant's knowledge, the
consummation of the transactions hereby contemplated and the performance of this
Lease will not result in any breach or violation of, or constitute a default
under any lease, bank loan or credit agreement to which Tenant is a party.
(n) This Lease may be executed in counterparts, all of which taken
together shall constitute one and the same original, and the execution of
separate counterparts by Landlord and Tenant shall bind Landlord and Tenant as
if they had executed the same counterparts.
Section 31.02. Governing Law. This Lease shall be governed (i) in all
respects by the law of the State of New York, and (ii) the provisions hereof,
without the aid of any canon, custom or rule of law requiring construction
against the party drafting the provision in question.
Section 31.03. Memoranda Agreements. Each of Landlord and Tenant shall, at
the other's request, execute, acknowledge and deliver a memorandum or short-form
of this Lease, and memoranda or short-forms of all agreements supplementary
hereto, which the requesting party may, at such party's expense, file and record
of record.
Section 31.04. Additional Rent. If Tenant shall fail to pay to the
appropriate taxing authority such Real Estate Taxes as Tenant is required to pay
under this Lease prior to the last date when the same is payable without
penalty, Landlord may, after ten (10) days notice thereof to Tenant (and
Tenant's failure to pay the same within said ten (10) day period), pay the same,
and Tenant shall within ten (10) days after notice of such payment by Landlord,
reimburse Landlord for the amount thereof (including penalties and interest (if
any)), with interest thereon at the Prime Rate from the date of such payment by
Landlord to the date of reimbursement. Such obligation of Tenant, if not timely
so paid, shall constitute "Additional Rent" payable hereunder
-56-
by Tenant to Landlord, and together with Annual Rental shall be included in the
terms "rent" and "rental."
Section 31.05. Estoppel Certificates. Each of Landlord and Tenant shall,
upon not less than fifteen (15) days notice from the other party, execute,
acknowledge and deliver to the other a written statement certifying that this
Lease is unmodified and in full force and effect (or, if this Lease shall have
been modified, listing such modifications), the dates to which Annual Rental and
Additional Rent have been paid and whether or not, to the best knowledge of such
party, the other party is in default of any of its obligations under this Lease
and such other reasonable matters reasonably requested by the relevant third
parties for whom such estoppel certificates are being procured.
Section 31.06. No Merger. There shall be no merger of this Lease, or the
leasehold estate created by this Lease, with any other estate or interest in the
Premises, or any part thereof, by reason of the fact that the same person may
acquire or own or hold, directly or indirectly, (i) this Lease or the leasehold
estate created by this Lease, or any interest in this Lease or in any such
leasehold estate, and (ii) any such other estate or interest in the Premises or
any part thereof; and no such merger shall occur unless and until all persons
having an interest (including a security interest) in (a) this Lease or the
leasehold estate created by this Lease and (b) any such other estate or interest
in the Premises, or any part thereof, shall join in a written instrument
effecting such merger and shall duly record the same.
Section 31.07. Business Days. The term "business days" shall mean all days
other than Saturdays, Sundays and those holidays observed by the federal
government and New York State as holidays.
Section 31.08. Hold-over. If Tenant shall hold-over after the expiration
of this Lease, the parties hereby agree that Tenant's occupancy of the Premises
after the expiration of the term shall be under a month-to-month tenancy
commencing on the first day after the Expiration Date, and shall be upon all of
the terms and conditions set forth herein, except that Tenant shall pay for each
month of Tenant's continued use and occupancy of the Premises during which
Tenant shall hold-over a sum equal to one-twelfth (1/12) of: (x) one hundred ten
(110%) percent of the Annual Rental which would have been payable by Tenant had
Tenant exercised its Renewal Option (as such amount is determined in accordance
with Section 4.04(a)(i)), plus (y) the Additional Rent paid by Tenant during the
preceding twelve (12) months pursuant to Sections 4.02 and 4.03 of this Lease;
provided, however, that if Tenant shall not have vacated the Premises as a
result of an Excusable Delay, or if Tenant shall have been conducting good faith
negotiations with Landlord in connection with a renewal or extension of this
Lease beyond the expiration of the Initial Term or the Renewal Term, then, for
the ninety (90) day period following the expiration of this Lease, the reference
in clause (x) above to one hundred ten (110%) percent shall be deemed to be one
hundred (100%) percent. The payment provided in this Section 31.08 shall be in
lieu of any other remedy or payment that shall be available to Landlord under
this
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Lease or at law, including, without limitation, damages, for holding-over, but
the same shall not detract from Landlord's right to continue to seek to obtain
possession of the Premises.
Section 31.09. Financial Statements. Within fifteen (15) days following
Landlord's written request therefor, but no more frequently then once in any six
(6) month period, Tenant shall submit to Landlord a copy of Tenant's most recent
audited consolidated financial statement.
Section 31.10. Ise Sublease. Simultaneously or nearly so herewith, Tenant
has entered into a sublease with an affiliate of Landlord (the "Ise Sublease").
In the event that any or all of the space demised under the Ise Sublease becomes
subject to Tenant's exclusive control, the Annual Rental hereunder shall be
increased by an amount which is the product of the rentable square footage of
the space demised under the Ise Sublease that becomes subject to Tenant's
exclusive control times 0.35 times the Annual Rental per rentable square foot of
the balance of the Premises demised hereunder. For the purposes of this
calculation, the rentable square footage of the space demised under the ISE
Sublease is 3,608 and the rentable square footage of the balance of the Premises
demised hereunder is 223,200. Thus, by way of example, if 2,000 rentable square
feet of the space demised under the ISE Sublease becomes subject to Tenant's
exclusive control during the time the Annual Rental per rentable square foot is
$4,200,000/223,200 (or $18.82 per rental square foot), the Annual Rental will be
increased by $13,174 (that is, $18.82 times 0.35 times 2,000). Thereafter, when
the Annual Rental as set forth on Schedule 2 hereof is increased, the amount to
be added to the Annual Rental for the former ISE Sublease space will be
appropriately adjusted to reflect the increase in the Annual Rental per square
foot of the balance of the Premises demised hereunder.
Section 31.11. Transfer of Ownership. Tenant acknowledges and accepts the
transfer of ownership of the Property from the named Landlord under the Prior
Lease to the named Landlord under this Lease.
Section 31.12. Reduced FAR. Landlord acknowledges that Tenant shall have
no liability to Landlord for any subsequent reduction in the floor area of the
Building that might come about or be required by Applicable Law if, as a result
of the enforcement by Landlord of any of Tenant's restoration obligations
hereunder, one or more governmental or quasi-governmental authorities determine
that there is an increase in the measurable floor area of the Building and
requires a reduction of the floor area of the Building in connection therewith.
The provisions of this Section 31.12 shall survive the expiration or earlier
termination of this Lease.
ARTICLE THIRTY-TWO
SECURITY
Section 32.01. Security. (a) Landlord acknowledges that Tenant has
delivered to Landlord or, at Landlord's direction, to Landlord's Mortgagee, as
the case may be, a irrevocable
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standby and "evergreen" letter of credit (the "Tenant's Letter of Credit", a
copy of which is substantially in the form attached hereto as Exhibit I) as
security for the performance of Tenant's obligations under this Lease, in the
amount of $1,000,000.
(b) In the event that an Event of Default shall occur and be
continuing, Landlord or, for so long as Landlord's Mortgagee shall be the
beneficiary of Tenant's Letter of Credit, Landlord's Mortgagee, as the case may
be, may apply the whole or any part of the proceeds of the Tenant's Letter of
Credit or any cash security then held by Landlord or, for so long as Landlord's
Mortgagee shall be the beneficiary of Tenant's Letter of Credit, Landlord's
Mortgagee, as the case may be, so deposited to the extent required for the
payment of (i) Annual Rental or Additional Rent, or (ii) any sum which Landlord
or, for so long as Landlord's Mortgagee shall be the beneficiary of Tenant's
Letter of Credit, Landlord's Mortgagee, as the case may be, may reasonably
expend to cure such Event of Default. If Landlord or, for so long as Landlord's
Mortgagee shall be the beneficiary of Tenant's Letter of Credit, Landlord's
Mortgagee, as the case may be, applies or retains any part of the Tenant's
Letter of Credit in accordance with the foregoing, Tenant shall, within thirty
(30) days after demand therefor by Landlord or, for so long as Landlord's
Mortgagee shall be the beneficiary of Tenant's Letter of Credit, Landlord's
Mortgagee, as the case may be, deposit with Landlord or, for so long as
Landlord's Mortgagee shall be the beneficiary of Tenant's Letter of Credit,
Landlord's Mortgagee, as the case may be, a sum equal to the amount so used,
applied or retained, as security as aforesaid, or a suitable replacement
Tenant's Letter of Credit, failing which Landlord or, for so long as Landlord's
Mortgagee shall be the beneficiary of Tenant's Letter of Credit, Landlord's
Mortgagee, as the case may be, shall have the same rights and remedies as for
the nonpayment of Annual Rental beyond the applicable grace period.
(c) If, on the Expiration Date or sooner termination of this Lease,
Tenant is in compliance with the Financial Test and Tenant shall not be (I) in
default of any of Tenant's monetary obligations under this Lease, or (II) in
material default of any of Tenant's non-monetary obligations under this Lease
(it being agreed for the purposes hereof that a material default of a
non-monetary obligation shall be limited to a default which, if not cured by
Tenant, would cause monetary damages to Landlord or would jeopardize Landlord's
interest in the Building), Landlord shall return or shall cause to be returned
the Tenant's Letter of Credit (or any cash security then held by Landlord or,
for so long as Landlord's Mortgagee shall be the beneficiary of Tenant's Letter
of Credit, Landlord's Mortgagee, as the case may be) to Tenant on the Expiration
Date or on such earlier date on which this Lease may terminate in accordance
with the provisions of this Lease, together with a letter, duly signed and
acknowledged by Landlord or, for so long as Landlord's Mortgagee shall be the
beneficiary of Tenant's Letter of Credit, Landlord's Mortgagee, as the case may
be, (x) stating that Landlord or, for so long as Landlord's Mortgagee shall be
the beneficiary of Tenant's Letter of Credit, Landlord's Mortgagee, as the case
may be, has relinquished all of Landlord's or, for so long as Landlord's
Mortgagee shall be the beneficiary of Tenant's Letter of Credit, Landlord's
Mortgagee's (as the case may be) rights and interest in the Tenant's Letter of
Credit and (y) authorizing the issuing bank to cancel the Tenant's Letter of
Credit.
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(d) If, on the Expiration Date or sooner termination of this Lease,
Tenant does not meet the Financial Test and Tenant has restoration obligations
pursuant to Section 11.04, Tenant's Letter of Credit shall remain outstanding
and shall be kept current by Tenant until Tenant's restoration obligation is
fully discharged and Tenant has met the requirements (other than the Financial
Test) for return of the Tenant's Letter of Credit set forth in Subsection
32.01(c) above, whereupon Landlord shall return or shall cause to be returned
the Tenant's Letter of Credit (and any cash security then held by Landlord, or
for so long as Landlord's Mortgagee shall be the beneficiary of Tenant's Letter
of Credit, Landlord's Mortgagee, as the case may be) to Tenant together with the
letter described in Subsection 32.01(c) above.
(e) In the event of a transfer of Landlord's interest in the
Property or Landlord's Mortgagee's interest in the Mortgage (and only in such
events), Landlord or, for so long as Landlord's Mortgagee shall be the
beneficiary of Tenant's Letter of Credit, Landlord's Mortgagee, as the case may
be, shall have the right to transfer the Tenant's Letter of Credit, or any sums
collected thereunder by Landlord or, for so long as Landlord's Mortgagee shall
be the beneficiary of Tenant's Letter of Credit, Landlord's Mortgagee, as the
case may be, from the issuing bank, to the transferee in accordance with all
requirements of the issuing bank, and Landlord or, for so long as Landlord's
Mortgagee shall be the beneficiary of Tenant's Letter of Credit, Landlord's
Mortgagee, as the case may be, shall thereupon be released by Tenant from all
liability for the return or payment of the amount transferred, and Tenant shall
look solely to the new Landlord or, if designated by Landlord as the transferee,
the new Landlord's Mortgagee, as the case may be, for the return or payment of
the same.
(f) If Landlord, or for so long as Landlord's Mortgagee shall be the
beneficiary of Tenant's Letter of Credit, Landlord's Mortgagee, as the case may
be, shall be holding any part of the proceeds of the Tenant's Letter of Credit
as cash security, the same shall be placed by Landlord or, so long as Landlord's
Mortgagee shall be the beneficiary of Tenant's Letter of Credit, Landlord's
Mortgagee, as the case may be, in a bank or similar institutional
interest-bearing account, and the interest earned thereon shall be disbursed
annually by Landlord, or for so long as Landlord's Mortgagee shall be the
beneficiary of Tenant's Letter of Credit, Landlord's Mortgagee, as the case may
be, to Tenant.
(g) Landlord agrees to pay the transfer fee of the issuing bank in
the event of a transfer of Tenant's Letter of Credit pursuant to Subsection
32.01(e) above.
ARTICLE THIRTY-THREE
▇▇▇ FINANCING
Section 33.01. ▇▇▇ Financing. Landlord acknowledges that Tenant has
obtained financing from the New York City Industrial Development Agency (the
"▇▇▇") in connection
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with the Prior Lease (the "▇▇▇ Financing"). Accordingly, Landlord agrees that,
if Tenant shall so request, Landlord shall cooperate with Tenant in connection
with such ▇▇▇ Financing, and any amendments, modifications, refinancings and
replacements thereof, including, without limitation, if Tenant has or may enter
into a leasing of personalty arrangement with the ▇▇▇, permitting the ▇▇▇ access
to the Premises to repossess such personalty if entitled to do so under the
provisions of the ▇▇▇ Financing documents; provided that Landlord shall not be
deprived of any of the economic benefits or legal rights (including, without
limitation, privity) or remedies set forth in this Lease, and that the same
shall be accomplished without Landlord being required to incur any additional
out-of-pocket cost or expense thereby (it being agreed and understood, however,
that any cost or expense which Landlord is or would be contractually obligated
or legally liable to pay to any third party or any governmental agency for any
reason other than the cooperation requirement set forth in this Section 33.01
shall not be deemed or construed an "additional out-of-pocket cost or expense").
If any amendments, modifications, refinancings and replacements of such ▇▇▇
Financing shall result in an additional out-of-pocket cost or expense to
Landlord, Tenant shall nonetheless have the right to require Landlord's
cooperation in connection therewith, provided that Tenant shall promptly
reimburse Landlord for such additional out-of-pocket costs or expenses.
Notwithstanding anything to the contrary contained herein, this Section 33.01
shall not impose any greater obligations on Landlord beyond those previously
performed by Landlord with respect to the ▇▇▇ Financing under the Prior Lease.
[SIGNATURES ON FOLLOWING PAGE]
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THIS LEASE is hereby executed and delivered effective as of the day and
year first above written.
LANDLORD:
ISE 555 BROADWAY, LLC
By: ISE HIYOKO, INC.
its Managing Member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Vice Chairman
TENANT:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP
-62-
EXHIBIT A
DESCRIPTION OF LAND
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York bounded and described
as follows:
BEGINNING at a point on the westerly side of Broadway, distant 224 feet 8 inches
northerly from the corner formed by the intersection of the westerly side of
Broadway and the northerly side of Spring Street;
RUNNING THENCE westerly along the southerly face of the southerly wall of the
building on the premises herein described, 200 feet 3 inches to the easterly
side of ▇▇▇▇▇▇ Street at a point therein distant 225 feet 1/4 of an inch
northerly from the northerly side of Spring Street, as measured along said
easterly line of ▇▇▇▇▇▇ Street;
THENCE RUNNING northerly along the easterly side of ▇▇▇▇▇▇ Street, 99 feet 5
inches;
THENCE easterly on a line which forms an angle on its northerly side with
easterly side of ▇▇▇▇▇▇ Street of 90 degrees 32 minutes 10 seconds 50 feet to an
angle point.
THENCE easterly on a line drawn parallel with the southerly side of Prince
Street and partly along the northerly face of the northerly wall of the building
on the premises herein described, 150 feet 3 inches to the westerly side of
Broadway; and
THENCE southerly along the westerly side of Broadway, 99 feet 1 inch to the
point or place of BEGINNING.
Together with all improvements now or hereafter existing thereon.
Having a street address of ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ (a/k/a ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇), ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇.
A-1
EXHIBIT B
DESCRIPTION OF THE 557 LAND
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:
BEGINNING at a point on the westerly side of Broadway distant one hundred and
one feet southerly from the corner formed by the intersection of the said
westerly side of Broadway with the southerly side of Prince Street;
RUNNING THENCE westerly parallel with Prince Street, 200 feet to the easterly
side of ▇▇▇▇▇▇ Street;
THENCE southerly along the said easterly side of ▇▇▇▇▇▇ Street, 50 feet;
THENCE easterly again parallel with Prince Street, 200 feet to the westerly side
of Broadway; and
THENCE northerly along the said westerly side of Broadway, 50 feet to the point
or place of BEGINNING.
B-1
EXHIBIT C
ELEVATOR LOCATION
[follows this page]
C-1
[second floor plan indicating future
elevator location]
EXHIBIT D
BATHROOM LOCATION
[follows this page]
D-1
[Second floor plans indicating optional
locations for proposed restrooms]
[Typical floor partial plan indicating
optional locations for proposed
restrooms - 555 Broadway]
EXHIBIT E
LANDLORD'S SIGN
[follows this page]
E-1
[Diagram of partial exterior
elevation indicating layout for
signs]
EXHIBIT F
LANDLORD'S LETTER OF CREDIT
[ISSUING BANK]
[Date]
▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ref: Irrevocable Letter of Credit No. __________
Gentlemen:
By order of our client, ISE ▇▇▇ ▇▇▇▇▇▇▇▇, LLC, having an office at ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, we hereby open in your favor our irrevocable standby Letter
of Credit No. __________ for the aggregate sum of [amount described in Section
___ of this Lease] United States Dollars, (U.S. $__________) effective
immediately and expiring at our [address of Bank] New York Office on __________
or any automatically extended date.
Funds under this Letter of Credit are available to you against presentation of
your sight draft(s) drawn on us marked "drawn under Irrevocable Letter of Credit
No. __________ date [date of Letter of Credit]", and accompanied by the
following:
Beneficiary's signed statement that ISE ▇▇▇ ▇▇▇▇▇▇▇▇, LLC has failed to comply
with the terms and conditions of a contract described as Amended and Restated
Lease between ISE 555 Broadway, LLC, as Landlord, and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. as Tenant,
dated August 1, 1999 and that the beneficiary is entitled to draw on this Letter
of Credit.
It is a condition of this Letter of Credit that it shall be deemed automatically
extended without amendment for one year from the present or any future
expiration date hereof, unless thirty (30) days prior to any such date we shall
notify you by registered mail that we elect not to consider this Letter of
Credit renewed for any such additional period. Upon receipt by you of such
notice, you may draw hereunder by means of your draft on us at sight,
accompanied by the original Letter of Credit.
F-1
This Letter of Credit is transferrable in whole but not in part by the
beneficiary upon notice to the undersigned, together with the payment of a
transfer charge of one-quarter of one percent of the amount of this Letter of
Credit. Requests for transfer will be in the form of Annex A attached hereto,
duly completed by an officer of your company and accompanied by the original of
this Letter of Credit.
If we receive your sight draft as mentioned above, in accordance with the terms
and conditions of this credit, here at our [address], New York Office we will
promptly honor the same.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision) International Chamber of Commerce
Brochure No. 500, shall be deemed to be a contract made under, and as to
matters not governed by the UCP, shall be governed by and construed in
accordance with the laws of the State of New York and applicable U.S. Federal
Law.
[Name of Bank]
By: __________________________
Authorized Signature
Title:
[ANNEX A TO BE ADDED BY ISSUING BANK, IF REQUIRED]
F-2
EXHIBIT G
NON-DISTURBANCE, SUBORDINATION AND ATTORNMENT AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of this ____ day of
______________, ______, by and between ______________________, a
_________________________ with its principal place of business located at
________________________________ (the "Mortgagee"), and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., a New
York corporation having an address at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Tenant").
W I T N E S S E T H
WHEREAS, Tenant is the tenant under and pursuant to that certain amended
and restated lease (the "Lease"), dated as of August 1, 1999, with Ise 555
Broadway, LLC, a New York limited liability company ("Landlord"), as landlord,
pursuant to which Tenant leased the entire building (the "Premises") located at
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, as more particularly set forth in the Lease;
WHEREAS, Landlord, Tenant, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Noma ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (formerly known
as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇) and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
(collectively, the "557 Landlord") entered into an Amended and Restated
Easements Agreement dated as of August 1, 1999, pursuant to which Landlord
granted to Tenant and/or the 557 Landlord certain easements and rights as more
particularly set forth therein (such agreement, as it may be amended and/or
restated from time to time with, so long as the Mortgage (as hereinafter
defined) shall be in full force and effect, Mortgagee's written consent (which
consent shall not be unreasonably withheld or delayed), the "Easements
Agreement"), which Easements Agreement is intended to be recorded simultaneously
or nearly so with the recording of this Agreement and which Easements Agreement
amends and restates in its entirety the easements agreement dated as of July 10,
1998, recorded on August 26, 1998 in Reel 2689 Page 00792;
WHEREAS, Mortgagee is the owner and holder of those certain mortgages as
more particularly described on Schedule A annexed hereto (collectively, the
"Mortgage"). The Mortgage secures a loan made by Mortgagee to Landlord (the
"Loan");
WHEREAS, the Mortgage constitutes a lien upon all of Landlord's right,
title and interest in and to that certain property (the "Mortgaged Property")
situated in the Borough of Manhattan, City, County and State of New York, as
more particularly described in Schedule B annexed
G-1
hereto, and the building located thereon commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇; and
WHEREAS, Tenant has agreed to subordinate the Lease to the Mortgage and to
the lien thereof, and Mortgagee has agreed to grant non-disturbance to Tenant
under the Lease, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises hereinafter
contained and other good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, Tenant and Mortgagee, intending to be legally
bound, hereby covenant and agree as follows:
1. So long as Tenant is not in default under the Lease after the
expiration of all applicable notice and cure periods provided for therein,
Mortgagee and Tenant each expressly agrees, on behalf of itself and its
successors and assigns, to the following:
(a) Tenant's possession and occupancy of the Premises and Tenant's
rights and privileges under the Lease shall not be disturbed by Mortgagee.
(b) Tenant shall not be named or joined by Mortgagee as a party
defendant in any action or proceeding or trustee's sale which may be instituted
or commenced by Mortgagee to foreclose or enforce the Mortgage, unless Tenant is
deemed a necessary party by the court, in which event Tenant may be so named or
joined, but such naming or joining shall not otherwise be in derogation of the
rights of Tenant set forth in this Agreement.
(c) Any insurance proceeds or Awards (as such term is defined in the
Lease) shall be applied and distributed as provided in the Lease.
Notwithstanding anything to the contrary herein or in the Lease, all fire and
casualty insurance proceeds and Awards shall be held by an independent third
party trustee selected by Mortgagee and reasonably acceptable to Tenant (the
"Insurance Trustee"), which trustee shall be deemed acceptable if such trustee
shall be a major money center bank with a branch office in New York City. The
Insurance Trustee shall be paid a reasonable and customary fee, which amount
shall be paid out of the fire and casualty insurance proceeds or Award.
(i) The Insurance Trustee shall distribute to Tenant all fire
and casualty insurance proceeds actually received by the Insurance Trustee such
that Tenant can restore the Premises in accordance with Section 9.01(a) of the
Lease, subject to the following provisions. Within ten (10) days after request
by Tenant therefor, the Insurance Trustee shall release to Tenant thirty percent
(30%) of such fire and casualty insurance proceeds, which Tenant agrees to hold
as a trust fund for expenses due and owing, incurred or to be incurred by Tenant
in connection with the restoration of the Premises in accordance with the
provisions of the Lease. Within ten (10) days after receipt by the Insurance
Trustee of (A) receipted invoices or other
G-2
sufficient evidence showing the expenses incurred by Tenant in connection with
the restoration of the Premises theretofore performed, (B) a certification of
Tenant's architect or engineer that the restoration of the Premises is
proceeding on schedule and in accordance with the provisions of the Lease, and
(C) a certification by Tenant that Tenant has utilized the first thirty (30)
percent of such fire and casualty insurance proceeds in connection with the
restoration of the Premises (collectively, the "Deliveries"), the Insurance
Trustee shall advance to Tenant the next installment of thirty percent (30%) of
such fire and casualty insurance proceeds. The third installment of thirty
percent (30%) of such fire and casualty insurance proceeds shall be advanced to
Tenant by the Insurance Trustee within ten (10) days after receipt by the
Insurance Trustee of the Deliveries with respect to the second thirty (30)
percent of such fire and casualty insurance proceeds in connection with the
restoration of the Premises. The Insurance Trustee shall retain the final ten
percent (10%) of such fire and casualty insurance proceeds until Tenant's
restoration shall have been substantially completed, and (x) receipted invoices
or other sufficient evidence showing the expenses incurred by Tenant in
connection with the restoration of the Premises theretofore performed, and (y)
final waivers of lien from all contractors, subcontractors and materialmen who
have furnished materials or supplies or performed work or services in connection
with the restoration of the Premises, shall have been delivered by Tenant to the
Insurance Trustee, which final ten percent (10%) of such fire and casualty
insurance proceeds shall be paid to Tenant within ten (10) days thereafter. Any
excess fire and casualty insurance proceeds held by the Insurance Trustee upon
the completion of the restoration or repair of the Premises in accordance with
the provisions of the Lease, as certified to the Insurance Trustee and Mortgagee
by the Tenant and Tenant's architect or engineer, shall be paid to Tenant within
ten (10) days after written demand therefor by Tenant. Notwithstanding anything
to the contrary set forth in this Agreement, neither the Insurance Trustee nor
the Mortgagee shall have any right to approve of, or consent to, the restoration
of the Premises or any aspect thereof or any plans and specifications for the
restoration of the Premises.
(ii) The Insurance Trustee shall distribute to Tenant Tenant's
share of the Award as provided in the Lease, and shall distribute Landlord's
share of the Award as provided in the Mortgage. To the extent Tenant's share of
the Award is required to be used to restore the Premises (a "Restoration
Award"), the Insurance Trustee shall distribute the same to Tenant in accordance
with the provisions set forth in Paragraph (i) above. All Awards due Tenant
under the Lease which are not Restoration Awards shall be paid by the Insurance
Trustee to Tenant within ten (10) days after written demand therefor by Tenant.
(d) The Mortgage shall be subject and subordinate to the Easements
Agreement.
2. If Mortgagee shall succeed to the rights of the Landlord under the
Lease, whether through possession, termination or cancellation of the Lease,
surrender, assignment, judicial action, sublettings, foreclosure action or
delivery of a deed or otherwise, and, provided no event of default then exists
under the Lease beyond the applicable notice and cure periods of the Lease
G-3
and this Agreement, Tenant shall attorn to and recognize Mortgagee as its
landlord and Mortgagee shall accept such attornment and recognize Tenant's
rights of possession and use of the Premises in accordance with the terms,
covenants and conditions of the Lease immediately upon Mortgagee's succeeding to
the interests of the Landlord under the Lease (said attornment to be effective
and self-operative without the execution of any further instruments, but Tenant
nevertheless agrees to execute any instruments or documents reasonably
satisfactory to Mortgagee and Tenant to confirm such attornment and/or otherwise
carry out the intent and purposes of this Agreement). The respective rights and
obligations of Tenant and Mortgagee upon such attornment shall be the same
during the balance of the term of the Lease, including any extensions or
renewals of the term of the Lease, as the respective rights and obligations of
Landlord and Tenant under the Lease as if Mortgagee and Tenant had entered into
a direct lease upon the terms of the Lease, except as provided in Paragraph 3
below; it being the intention of the parties hereto for this purpose to
incorporate the Lease in this Agreement by reference with the same force and
effect as if set forth at length herein. Tenant acknowledges that, except as
provided below, the provisions of Section 2.03 of the Lease shall not apply to
any foreclosure sale of the Mortgage or to the delivery of a deed in lieu of
foreclosure of the Mortgage. Notwithstanding the foregoing, so long as Tenant is
not in default under the Lease after the expiration of all applicable notice and
cure periods provided for therein, in the event that any such delivery of a deed
in lieu of foreclosure will be to an entity which is not the then holder of the
Mortgage or its related or affiliated entity, then the then holder of the
Mortgage shall give Tenant notice of such proposed transfer and the proposed
consideration to be paid to the then holder of the Mortgage and the terms of
such transfer, and Tenant shall have the right, by notice exercised within sixty
(60) days after Tenant shall have received such notice, to receive the proposed
deed in lieu of foreclosure for the same consideration and upon the same terms.
If the grantee of the deed in lieu of foreclosure is Mortgagee or its related or
affiliated entity, then the provisions of Section 2.03 of the Lease shall apply
to any transaction whereby such grantee ceases to be Mortgagee or its related or
affiliated entity (as if such transaction were a proposed sale of the Mortgaged
Property.) Following any purchase of the Mortgaged Property at foreclosure or
any transfer of the Mortgaged Property by deed in lieu of foreclosure, the
provisions of Section 2.03 of the Lease shall apply to any subsequent proposed
transfer of the Mortgaged Property.
3. Upon Mortgagee succeeding to the rights of Landlord under the Lease,
Mortgagee, as landlord, shall not be:
(a) Liable to pay damages to Tenant caused by any breach, act,
omission or negligence of any prior Landlord (including the then defaulting
Landlord), but shall (subject to Tenant's having complied with the provisions of
Paragraph 5 below) nonetheless remain subject to any and all abatements,
deductions, offsets, claims, counterclaims and/or defenses which shall have
accrued to Tenant against any prior landlord (including the then defaulting
Landlord) prior to the date that Mortgagee shall have succeeded to the rights of
Landlord under the Lease, but in any case, provided, however, such non-liability
for damages shall neither diminish Mortgagee's
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liability for continuing obligations of Landlord nor diminish Tenant's rights
under the Lease with respect to the continuing failure of Mortgagee to perform
the Landlord's obligations under the Lease after the date that Mortgagee
succeeds to the interest of Landlord under the Lease and after the expiration of
all applicable notice and cure periods provided for herein;
(b) Bound by any rent, additional rent or other items of rental
under the Lease which Tenant might have paid for more than the current month to
any prior Landlord (including the then defaulting Landlord); or
(c) Bound by the terms of any agreement amending, modifying,
supplementing or terminating the Lease made without Mortgagee's written consent,
which consent shall not be unreasonably withheld or delayed.
4. Tenant waives, and covenants not to exercise, any rights it may have to
terminate or avoid the Lease arising out of any proceedings brought to foreclose
or enforce the Mortgage, provided, however, that, so long as Tenant is not in
default under the Lease after the expiration of all applicable notice and cure
periods provided for therein, such proceeding shall not derogate the rights of
Tenant under the Lease or the use and occupancy by Tenant (or its permitted
assignees and subtenants) of the Premises, it being intended that the Lease
shall survive any such proceedings.
5. (a) Tenant shall notify Mortgagee of any default by Landlord under the
Lease which would entitle Tenant to cancel the Lease or ▇▇▇▇▇ the fixed rent,
additional rent or other items of rental due and payable thereunder, and agrees
that, notwithstanding any provisions of the Lease to the contrary, (i) no notice
of cancellation thereof shall be effective unless Mortgagee shall have received
notice of the default giving rise to such cancellation and shall have failed
within five (5) business days (in the case of monetary defaults) or thirty (30)
days (in the case of non-monetary defaults) after expiration of any time period
available to Landlord (and subject to the same obligations applicable to
Landlord) under the terms of the Lease to effect a cure thereof, and (ii) no
notice of abatement shall be effective unless Mortgagee shall have received
notice of the default giving rise to such abatement and shall have failed within
the same time period available to Landlord (and subject to the same obligations
applicable to Landlord) under the terms of the Lease to effect a cure thereof;
provided, however, that, if Mortgagee shall not have been given notice of the
default giving rise to such right of cancellation of the Lease or such right of
abatement of rental concurrently with the giving of such notice of the default
to Landlord, then the applicable cure periods provided above shall be deemed to
be extended by one (1) day for each day from and after the giving of such notice
of the default to Landlord that Mortgagee shall not have been given such notice
of the default. Nothing contained in this Paragraph 5 shall be deemed to permit
or require the further extension of the cure periods beyond the applicable cure
periods provided in this Agreement, including, without limitation, in the event
(i) of force majeure, (ii) Mortgagee shall have commenced to cure a default
within the applicable time period but shall not have prosecuted the same to
completion within said time period, and/or (iii)
G-5
possession of the Premises or the Mortgaged Property is required in order for
Mortgagee to cure such default, or such default is not susceptible of being
cured by Mortgagee.
(b) Landlord shall notify the holder of any leasehold mortgage on
the interest of Tenant under the Lease (a "Leasehold Mortgagee") of any default
by Tenant under the Lease, and agrees that, notwithstanding any provisions of
the Lease to the contrary, no notice of default shall be effective unless such
Leasehold Mortgagee shall have received notice of the default and shall have
failed within five (5) business days (in the case of monetary defaults) or
thirty (30) days (in the case of non-monetary defaults) after expiration of any
time period available to Tenant (and subject to the same obligations applicable
to Tenant) under the terms of the Lease to effect a cure thereof; provided,
however, that, if the Leasehold Mortgagee shall not have been given notice of
the default concurrently with the giving of such notice of the default to
Tenant, then the applicable cure periods provided above shall be deemed to be
extended by one (1) day for each day from and after the giving of such notice of
the default to Tenant that the Leasehold Mortgagee shall not have been given
such notice of the default.
6. Tenant acknowledges and agrees that the Lease and Tenant's right, title
and interest under the Lease shall be subject and subordinate to the Mortgage
(including all amendments, modifications, supplements, renewals and extensions
at any time with respect thereto), and all advances made or to be made
thereunder. Without limiting the foregoing, if Tenant shall desire to purchase
the Mortgaged Property at any time during which the Mortgaged Property is
subject to the Mortgage, Tenant shall have no right to purchase all or any part
of the Mortgaged Property or the Premises, whether pursuant to Section 2.03 of
the Lease or otherwise, unless Tenant shall comply with the provisions of
clauses (i) through (vi) only of Subsection 10(f) and Section 12 of the Mortgage
(it being acknowledged by the Mortgagee that (x) clauses (i) through (vi) of
Subsection 10(f) shall be the only factors considered by Mortgagee in giving its
consent to the sale or transfer of the Mortgaged Property, and (y) after the
date that is the earlier of (i) four (4) years after the date of the Mortgage,
and (ii) two years after the date of securitization of the Loan, Landlord (on
behalf of and at the request of Tenant) may cause the release of the Mortgaged
Property from the lien of the Mortgage and the other Loan Documents (as such
term is defined in the Mortgage) in accordance with the provisions of Section 55
of the Mortgage, in which case, provided that the Mortgaged Property is released
in accordance with the provisions of Section 55 of the Mortgage, the foregoing
restrictions shall not apply.
7. Notwithstanding anything to the contrary contained in the Lease, Tenant
acknowledges and agrees that in the event that Mortgagee shall succeed to
Landlord's interest under the Lease (i) no shareholder, partner, director,
officer, agent or employee of Mortgagee (collectively, the "Parties") shall be
liable for the performance of the Mortgagee's obligation under the Lease; (ii)
Tenant shall look to Mortgagee to enforce Mortgagee's obligations under the
Lease and shall not seek any damages against any of the Parties; and (iii) the
liability of Mortgagee for Mortgagee's obligations under the Lease shall not
exceed and shall be limited to Mortgagee's estate, interest and property in the
Mortgaged Property and Tenant shall not look to
G-6
any other property or assets of Mortgagee or the property or assets of any of
the Parties in seeking either to enforce Mortgagee's obligations under the Lease
or to satisfy a judgment for Mortgagee's failure to perform such obligations.
Notwithstanding anything to the contrary contained herein, Mortgagee's estate,
interest and property in the Mortgaged Property shall include all rents received
by Mortgagee with respect to the Mortgaged Property (or any portion thereof),
the consideration or proceeds of any sale or other conveyance of Mortgagee's
estate, interest and property in the Mortgaged Property (or any portion
thereof), the proceeds of a financing or refinancing received by Mortgagee from
the grant of any mortgage interest in Mortgagee's estate, interest and property
in the Mortgaged Property (or any portion thereof), and any insurance proceeds
or Awards relating to the Mortgaged Property.
8. Tenant hereby represents and warrants to Mortgagee that as of the date
hereof (i) Tenant is the owner and holder of the Tenant's interest under the
Lease, (ii) the Lease has not been modified or amended, (iii) the Lease is in
full force and effect pursuant to the provisions thereof and the term thereof
has commenced, and (iv) to the best of Tenant's knowledge, neither Tenant nor
Landlord is in default or in breach of any of the terms, covenants or provisions
of the Lease.
9. Landlord hereby authorizes and directs Tenant to name the Mortgagee as
the beneficiary of the Tenant's Letter of Credit (as such term is defined in the
Lease), and Landlord agrees to return to Tenant the existing letter of credit
under the Prior Lease (as such term is defined in the Lease), together with a
letter, duly signed and acknowledged by Landlord, (a) stating that Landlord has
relinquished all of Landlord's rights and interest in and to the existing letter
of credit under the Prior Lease, and (b) authorizing the issuing bank to cancel
the existing letter of credit under the Prior Lease simultaneously with the
issuance of the Tenant's Letter of Credit naming the Mortgagee as the
beneficiary. For so long as Mortgagee shall be the beneficiary of Tenant's
Letter of Credit, Mortgagee agrees to comply with all obligations of Landlord
under Article 32 of the Lease, including, without limitation, such obligations
of Landlord upon the expiration or earlier termination of the Lease, it being
agreed that Landlord shall be bound by all actions taken by Mortgagee under
Article 32 of the Lease as if Landlord had performed such actions itself. If,
prior to the expiration or earlier termination of the Lease, the Mortgage shall
no longer be in effect, Mortgagee shall return to Tenant the Tenant's Letter of
Credit, together with (i) a letter, duly signed and acknowledged by Mortgagee,
(x) stating that Mortgagee has relinquished all of Mortgagee's rights and
interest in and to the Tenant's Letter of Credit, and (y) authorizing the
issuing bank to transfer Tenant's Letter of Credit to Landlord or to the
subsequent holder of any refinanced or replaced mortgage on Landlord's fee
estate in the Mortgaged Property designated by Landlord, (ii) transfer forms,
duly signed and acknowledged by Mortgagee, required by the issuing bank, and
(iii) payment of the transfer fee required by the issuing bank, which payment
shall be made or provided for solely by Landlord on behalf of Mortgagee, it
being agreed that Landlord shall be solely liable for (and Mortgagee shall not
be liable for) any transfer fees required by the issuing bank.
G-7
10. All notices, consents and other communications pursuant to the
provisions of this Agreement shall be in writing and shall be deemed to have
been sufficiently given or served for all purposes as of the date (i) when hand
delivered or (ii) five (5) business days after being sent by registered or
certified mail, return receipt requested or (iii) the date actually received (as
shown on a signed receipt) if sent by overnight courier to any party hereto at
the following addresses:
If to Mortgagee:
_________________________________
_________________________________
_________________________________
_________________________________
Attention: ______________________
Telecopier: _____________________
with copies to:
_________________________________
_________________________________
_________________________________
_________________________________
Attention: ______________________
Telecopier: _____________________
and to:
_________________________________
_________________________________
_________________________________
Attention: ______________________
Telephone: ______________________
If to Tenant:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with copies to:
G-8
▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Stroock & Stroock & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.
Each party may designate a change of address by notice to the other party, given
at least fifteen (15) days before such change of address is to become effective.
11. To the extent that the Lease shall entitle Tenant to notice of any
mortgage, this Agreement shall constitute such notice to Tenant with respect to
the Mortgage.
12. Whenever used in this Agreement, unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, the word
"Tenant" shall mean "Tenant or any subsequent holder of an interest under the
Lease, provided the interest of such holder is acquired in conformance with the
terms and conditions of the Lease"; "Mortgagee" shall mean "Mortgagee or any
subsequent holder or holders of the Mortgage, or any party acquiring fee title
to the Mortgaged Property or any part thereof by purchase at a foreclosure sale
or by deed in lieu of foreclosure"; 'Landlord" shall mean "the present landlord
under the lease and such landlord's predecessors and successors and assigns."
Pronouns of any gender shall include the other genders, and either the singular
or plural shall include the other.
13. This Agreement shall inure to the benefit of and be binding upon the
Tenant and Mortgagee, and each successor Tenant and Mortgagee, and may not be
modified other than by a written instrument duly signed and delivered by Tenant
and Mortgagee.
14. This Agreement may be executed in counterparts, all of which taken
together shall constitute one and the same original, and the execution of
separate counterparts by Tenant and Mortgagee shall bind Tenant and Mortgagee as
if they had executed the same counterparts.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
G-9
IN WITNESS WHEREOF, Tenant and Mortgagee have caused this agreement to be
duly executed as of the date first above written.
Mortgagee: Tenant:
_________________________ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
By: _________________________ By: _________________________
Name: Name:
Title: Title:
In order to induce Tenant and Mortgagee to enter into the foregoing
Non-Disturbance, Subordination and Attornment Agreement, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
undersigned hereby consents to each and every term and condition of such
Agreement and to the execution of such agreement by Tenant and Mortgagee.
Landlord:
ISE 555 BROADWAY, LLC
By: ISE Hiyoko, Inc.,
its managing member
By: _____________________
Name:
Title:
G-10
STATE OF _________ )
)
COUNTY OF _________ )
On the _____ day of ______________________ in the year 1999, before me,
the undersigned, a notary public in and for said state, personally appeared
____________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
_________________________
Notary Public
G-11
STATE OF _________ )
)
COUNTY OF _________ )
On the _____ day of ______________________ in the year 1999, before me,
the undersigned, a notary public in and for said state, personally appeared
____________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
_________________________
Notary Public
▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
)
COUNTY OF NEW YORK )
On the _____ day of ______________________ in the year 1999, before me,
personally came ▇▇▇▇▇ ▇▇▇▇▇▇, to me known, who, being by me duly sworn, did
depose and say that he resides at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇;
that he is the Vice Chairman of Ise Hiyoko, Inc., a Japanese corporation (the
"Corporation"), the managing member of ISE 555 Broadway, LLC, the New York
limited liability company (the "Limited Liability Company") named in the
foregoing instrument; and that he has the authority to sign the same by order of
the board of directors of the Corporation, as managing member of the Limited
Liability Company and that he acknowledged that he executed the same as the act
and deed of the Corporation and the Limited Liability Company.
_________________________
Notary Public
G-13
SCHEDULE A
Mortgages
1. Mortgage made by Rouss Building, Inc. to The ▇▇▇▇▇▇▇ Estate dated 3/29/38,
recorded 3/30/38 in Liber 4325 Mp. 138 to secure the sum of $50,000.00 and
interest.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 was/were assigned by The ▇▇▇▇▇▇▇ Estate to Union Square
Savings Bank by assignment dated 12/29/50, recorded 2/51, in Liber 5208
Mp. 112.
2. Mortgage made by Rouss Building Inc. to ▇. ▇▇▇▇▇▇▇▇ and Sons Inc. dated
11/1/38, recorded 11/29/38 in Liber 4347 Mp. 471 to secure the sum of
$30,000.00 and interest.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 2 was/were assigned by ▇. ▇▇▇▇▇▇▇▇ and Sons Inc. to ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Holdings Inc. by assignment dated 6/23/47, recorded 6/25/47, i
n Liber 4919 Mp. 13.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 2 was/were assigned by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Holdings Inc. to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ by assignment dated 10/30/47, recorded 11/3/47, in Liber 4949
Mp. 454.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 2 was/were assigned by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Holdings
Inc. to Union Square Savings Bank by assignment dated 12/28/50,
recorded 2/51, in Liber 5208 Mp. 108.
3. Mortgage made by Rouss Building Inc. to The RFC Mortgage Company dated
4/13/39, recorded 4/18/39 in Liber 43644 Mp. 179 to secure the sum of
$160,000.00 and interest.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 3 was/were assigned by The RFC Mortgage Company to Union
Square Savings Bank by assignment dated 6/21/44, recorded 6/23/44, in
Liber 4685 Mp. 548
Agreement Extending Mortgage Agreement made between Rouss Building Inc.
and Union Square Savings Bank dated 12/29/50 recorded 1/16/51 in Liber
5211 Mp. 513. Consolidated mortgages 1 thru 3 to form a single lien of
$164,578.00.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 3 as consolidated was/were assigned by Union Square
Savings Bank to ▇▇▇▇▇▇▇ Export Corporation by assignment dated 3/7/60,
recorded 3/7/60, in Liber 5881 Mp. 415.
G-14
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 3 as consolidated was/were assigned by ▇▇▇▇▇▇▇ Export
Corporation to The Manhattan Savings Bank by assignment dated 10/28/65,
recorded 11/3/65, in Liber 6428 Mp. 414.
4. Mortgage made by ▇▇▇▇▇ ▇▇▇▇▇▇▇ to The Manhattan Savings Bank dated
10/28/65, recorded 11/3/65 in Liber 6428 Mp. 419 to secure the sum of
$431,492.00 and interest.
Consolidation and Extension Agreement made between ▇▇▇▇▇ ▇▇▇▇▇▇▇ and The
Manhattan Savings Bank dated 10/28/65 recorded 11/3/65 in Liber 6428 Mp.
423. Consolidates mortgages 1 thru 4 to form a single lien of $525,000.00.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 4 as consolidated was/were assigned by The Manhattan
Savings Bank to The Globe Wernicke Realty Company by assignment dated
6/30/75, recorded 6/30/75, in Reel 344 Page 1469
Extension Agreement made between ▇▇▇ ▇▇▇▇▇▇▇▇ Corp. and The Globe Wernicke
Realty Company dated 11/1/75 recorded 11/5/75 in Reel 354 Page 1956.
Extends mortgages 1 thru 4 as consolidated.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 4 as consolidated was/were assigned by The Globe
Wernicke Realty Company to American Savings Bank, FSB by assignment dated
10/14/86, recorded 10/23/86, in Reel 1133 Page 1269.
5. Mortgage made by ▇▇▇▇▇▇▇ Enterprises Incorporated to American Savings
Bank, FSB dated 10/14/86, recorded 10/23/86 in Reel 1133 Page 1274 to
secure the sum of $3,109,075.34 and interest.
Consolidation, Modification and Extension Agreement made between ▇▇▇▇▇▇▇
Enterprises Incorporated and American Savings Bank, FSB dated 10/14/86
recorded 10/23/86 in Reel 1133 Page 1292. Consolidates mortgages 1 thru 5
to form a single lien of $3,350,000.00.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 5 as consolidated was/were assigned by American Savings
Bank, FSB f/k/a American Savings Bank to City Federal Savings Bank by
assignment dated 4/28/88, recorded 5/10/88, in Reel 1400 Page 361.
G-15
6. Mortgage made by ▇▇▇▇▇▇▇ Enterprises incorporated to City Federal Savings
Bank dated 5/3/88, recorded 5/10/88 in Reel 1400 Page 367 to secure the
sum of $7,186,901.72 and interest.
Consolidated, Modification and Spreader Agreement made between ▇▇▇▇▇▇▇
Enterprises Incorporated and City Federal Savings Bank dated 5/3/88
recorded 5/10/88 in Reel 1400 Page 435. Consolidates mortgages 1 thru 6 to
form a single lien of $10,510,000.00 and same are modified and spread to
cover those parts of premises not already covered.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 6 as consolidated was/were assigned by City Savings
Bank, FSB in conservatorship, resolution trust corporation as conservator
to Barclays Bank PLC and The Day-Ichi Kangyo Bank, Ltd. by assignment
dated 9/18/90, recorded 9/19/90, in Reel 1729 Page 1645.
7. Subordinate Loan Mortgage and Security Agreement made by ▇▇▇▇▇▇▇
Enterprises Incorporated to City Federal Savings Bank dated 5/3/88,
recorded 5/10/88 in Reel 1400 Page 401 to secure the sum of $1,490,000.00
and interest.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 7 was/were assigned by City Savings Bank, FSB in
conservatorship, resolution trust corporation as conservator to Barclays
Bank PLC (Tokyo Branch) and The Dai-Ichi Kangyo Bank Ltd. by assignment
dated 9/18/90, recorded 9/19/90, in Reel 1729 Page 1650.
8. Mortgage made by Ise Hiyoko Inc. to Barclays Bank PLC (Tokyo Branch) and
The Dai-Ichi Kangyo Bank dated 9/18/90, recorded 9/19/90 in Reel 1729 Page
1655 to secure the sum of $2,639,878.66 and interest.
Consolidation, Modification and Extension Agreement made between Ise
Hiyoko, Inc. and Barclays Bank PLC (Tokyo Branch) and The Dai-Ichi Kangyo
Bank dated 9/18/90 recorded 9/19/90 in Reel 1729 Page 1661. Consolidates
mortgages 1 thru 8 to form a single lien of $14,000,000.00 and modifies
and extends same.
COLLATERAL ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 8 as consolidated was/were assigned by Barclays Bank
PLC (Tokyo Branch) and The Dai-Ichi Kangyo Bank, Ltd. to Orient
Corporation by assignment dated 9/18/90, recorded 9/19/90, in Reel 1729
Page 1702.
ASSIGNMENT OF MORTGAGE
G-16
Mortgages 1 thru 8 were assigned by Orient Corporation to Barclays Bank,
PLC (Tokyo Branch) and The Dai-Ichi Kangyo Bank, Ltd. by assignment dated
8/25/95, recorded 8/31/95, in Reel 2238 Page 2018.
ASSIGNMENT OF MORTGAGE
Mortgages 1 thru 8 were assigned by Barclays Bank, PLC (Tokyo Branch) and
The Dai-Ichi Kangyo Bank, Ltd. to Greyrock Capital Group Inc. by
assignment dated 8/25/95, recorded 8/31/95, in Reel 2238 Page 2034.
9. Mortgage made by Ise Hiyoko Inc. to Orient Corporation dated 1/20/93,
recorded 2/1/93 in Reel 1942 Page 458 to secure the sum of $2,000,000.00
and interest.
Mortgage Modification Agreement made by and between Orient Corporation and
Ise Hiyoko, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel 2238
Page 1987.
ASSIGNMENT OF MORTGAGE
Mortgage 9 was assigned by Orient Corporation to Greyrock Capital Group,
Inc. by assignment dated 8/25/95, recorded 8/31/95 in Reel 2238 Page 2008.
10. Mortgage made by Ise Hiyoko Inc. to Orient Corporation dated 1/20/93,
recorded 2/1/93 in Reel 1942 Page 498 to secure the sum of $5,000,000.00
and interest.
Mortgage Modification Agreement made by and between Orient Corporation and
Ise Hiyoko, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel 2238
Page 1994.
ASSIGNMENT OF MORTGAGE
Mortgage 10 was assigned by Orient Corporation to Greyrock Capital Group,
Inc. by assignment dated 8/25/95, recorded 8/31/95 in Reel 2238 Page 2013.
11. Subordinate Mortgage made by Ise Hiyoko, Inc. to Orient Corporation dated
4/6/94, recorded 4/7/94 in Reel 2077 Page 1669 as re-indexed in Reel 2229
Page 503 on 7/31/95 to secure the sum of $7,000,000.00 and interest.
Modification Agreement made by and between Orient Corporation and Ise
Hiyoko, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel 2238
Page 2001.
ASSIGNMENT OF MORTGAGE
Mortgage 11 was assigned by Orient Corporation to Greyrock Capital Group,
Inc. by assignment dated 8/25/95, recorded 8/31/95 in Reel 2243 Page 915.
Consolidation Agreement made by and between Greyrock Capital Group, Inc.
and Ise Hiyoko, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel
2238 Page 2055.
G-17
Consolidates mortgages 1 thru 11 to form a single lien of $28,000,000.00.
Modification and Splitter Agreement made by and between Greyrock Capital
Group, Inc. and Ise Hiyoko, Inc. by agreement dated 8/25/95, recorded
8/31/95 in Reel 2238 Page 2066. Splits mortgages 1 thru 11 as consolidated
into two liens:
a. 1st mortgage (Substitute Mortgage A) in the amount of
$20,000,000.00.
b. 2nd mortgage (Substitute Mortgage B) in the amount of $8,000,000.00.
12. Superior Mortgage - Substitute A made by Ise Hiyoko, Inc. to Greyrock
Capital Group Inc. dated 8/25/95, recorded 8/31/95 in Reel 2238 Page 2080
to secure the sum of $20,000,000.00 and interest.
ASSIGNMENT OF MORTGAGE
Superior Mortgage - Substitute A is being assigned to Credit Suisse First
Boston Mortgage Capital LLC by that certain Assignment of Mortgage from
NationsCredit Commercial Corporation, successor-in-interest to Greyrock
Capital Group, dated as of 8/4/99 and being recorded in the Register's
Office simultaneously herewith.
13. Subordinate Mortgage - Substitute B (the "Mortgage") made by Ise Hiyoko,
Inc. to Greyrock Capital Group Inc. dated 8/25/95, recorded 8/31/95 in
Reel 2238 Page 2147 to secure the sum of $8,000,000.00 and interest.
ASSIGNMENT OF MORTGAGE
The Mortgage was assigned by Greyrock Capital Group Inc. to Harayokey,
Inc. by assignment dated 8/25/95, recorded 8/31/95 in Reel 2238 Page 2152.
Subordination Agreement made by and between Greyrock Capital Group Inc. to
Harayokey, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel 2238
Page 2135. Subordinates mortgage in Reel 2238 Page 2147 to mortgage in
Reel 2238 Page 2080.
ASSIGNMENT OF MORTGAGE
The Mortgage is being assigned to Credit Suisse First Boston Mortgage
Capital LLC by that certain Assignment of Mortgage made by Harayokey,
Inc., dated as of 8/4/99 and being recorded in the Register's Office
simultaneously herewith.
14. MORTGAGE made by ISE ▇▇▇ ▇▇▇▇▇▇▇▇, LLC to Credit Suisse First Boston
Mortgage Capital LLC dated as of 8/4/99 and to be recorded to secure the
sum of $9,731,893.37 and interest.
G-18
AMENDED, RESTATED AND CONSOLIDATED MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS AND SECURITY AGREEMENT made between ISE 555 Broadway, LLC and Credit
Suisse First Boston Mortgage Capital LLC dated as of 8/4/99 and to be
recorded.
Consolidates Mortgages 1 through 14 above to form a single first lien of
$34,000,000.00. and interest.
G-19
SCHEDULE B
Mortgaged Property
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York bounded and described
as follows:
BEGINNING at a point on the westerly side of Broadway, distant 224 feet 8 inches
northerly from the corner formed by the intersection of the westerly side of
Broadway and the northerly side of Spring Street;
RUNNING THENCE westerly along the southerly face of the southerly wall of the
building on the premises herein described, 200 feet 3 inches to the easterly
side of ▇▇▇▇▇▇ Street at a point therein distant 225 feet 1/4 of an inch
northerly from the northerly side of Spring Street, as measured along said
easterly line of ▇▇▇▇▇▇ Street;
THENCE RUNNING northerly along the easterly side of ▇▇▇▇▇▇ Street, 99 feet 5
inches;
THENCE easterly on a line which forms an angle on its northerly side with
easterly side of ▇▇▇▇▇▇ Street of 90 degrees 32 minutes 10 seconds 50 feet to an
angle point.
THENCE easterly on a line drawn parallel with the southerly side of Prince
Street and partly along the northerly face of the northerly wall of the building
on the premises herein described, 150 feet 3 inches to the westerly side of
Broadway; and
THENCE southerly along the westerly side of Broadway, 99 feet 1 inch to the
point or place of BEGINNING.
Together with all improvements now or hereafter existing thereon.
G-20
EXHIBIT H
EXISTING ENCUMBRANCES, COVENANTS, AGREEMENTS AND EASEMENTS
1. The Premises (or part of the Premises) have been designated as a
Landmark, Landmark Site or Historic District, by an instrument dated 8/16/73 and
recorded on 8/17/73 in Reel 288 Page 1059 and are subject to the restricted use
as provided in the New York City Administrative Code, Chapter 3, Landmarks
Preservation and Historic Districts, Section 25-30 et. seq.
2. Recital as to underground tunnel contained in deed made by The ▇▇▇▇▇▇▇
Estate to Rouss Building, Inc., dated February 19, 1938, recorded March 30, 1938
in Liber 3984 cp 62.
3. Violations:
(a) Sidewalk Violation filed May 11, 1990 (File # 53161).
(b) Sidewalk Violation filed December 5, 1991 (File # 60692).
(c) ECB violation 38055606J issued 7/31/96.
4. Amended and Restated Easements Agreement dated as of August 1, 1999,
among Landlord, Tenant, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Noma ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (formerly known as ▇▇▇▇▇
▇▇▇▇▇▇▇▇) and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
(collectively, the "557 Landlord"), as such agreement may be amended and/or
restated from time to time, which Easements Agreement amends and restates in its
entirety the easements agreement dated as of July 10, 1998, recorded on August
26, 1998, in Reel 2689, Page 00792.
5. A survey of the Premises made by Montrose Surveying Co., Inc. dated
June 18, 1999 shows the following:
a. The northerly wall of the building on the premises adjoining on the
south leans up to .08 foot, over the Premises.
b. The chimney of the building on the premises adjoining on the south
is anchored to the wall of the Building and carried to the roof
thereof.
c. The brick piers, above first story of Building encroach .08 foot on
▇▇▇▇▇▇ Street.
d. The northerly wall of the Building leans .5 foot, more or less, over
premises adjoining on the north.
H-1
e. Roof of Building projects .33 foot over the north adjoining
premises.
f. Roof trim of Building projects .6 foot over premises on the north,
and .37 foot over premises on the south.
g. Encroachments and projections on and over Broadway by stone bases,
trim, grade areas, and stone and iron piers.
h. Encroachments and projections on and over ▇▇▇▇▇▇ Street by steps,
cellar doors, trim, marquee and vents.
i. Building in the course of construction on the premises adjoining on
the north, foundation only completed. Said construction subject to
easement referred to in item 4 above.
j. Mortgages set forth on Schedule 1 of this Exhibit H.
H-2
Schedule 1 to Exhibit H
Mortgages
1. Mortgage made by Rouss Building, Inc. to The ▇▇▇▇▇▇▇ Estate dated 3/29/38,
recorded 3/30/38 in Liber 4325 Mp. 138 to secure the sum of $50,000.00 and
interest.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 was/were assigned by The ▇▇▇▇▇▇▇ Estate to Union Square
Savings Bank by assignment dated 12/29/50, recorded 1/2/51, in Liber 5208
Mp. 112.
2. Mortgage made by Rouss Building Inc. to ▇. ▇▇▇▇▇▇▇▇ and Sons Inc. dated
11/1/38, recorded 11/29/38 in Liber 4347 Mp. 471 to secure the sum of
$30,000.00 and interest.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 2 was/were assigned by ▇. ▇▇▇▇▇▇▇▇ and Sons Inc. to ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Holdings Inc. by assignment dated 6/23/47, recorded 6/25/47, i n
Liber 4919 Mp. 13.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 2 was/were assigned by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Holdings Inc. to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ by
assignment dated 10/30/47, recorded 11/3/47, in Liber 4949 Mp. 454.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 2 was/were assigned by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Holdings Inc. to Union
Square Savings Bank by assignment dated 12/28/50, recorded 1/2/51, in
Liber 5208 Mp. 108.
3. Mortgage made by Rouss Building Inc. to The RFC Mortgage Company dated
4/13/39, recorded 4/18/39 in Liber 43644 Mp. 179 to secure the sum of
$160,000.00 and interest.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 3 was/were assigned by The RFC Mortgage Company to Union
Square Savings Bank by assignment dated 6/21/44, recorded 6/23/44, in
Liber 4685 Mp. 548
Agreement Extending Mortgage Agreement made between Rouss Building Inc.
and Union Square Savings Bank dated 12/29/50 recorded 1/16/51 in Liber
5211 Mp. 513. Consolidated mortgages 1 thru 3 to form a single lien of
$164,578.00.
H-3
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 3 as consolidated was/were assigned by Union Square
Savings Bank to ▇▇▇▇▇▇▇ Export Corporation by assignment dated 3/7/60,
recorded 3/7/60, in Liber 5881 Mp. 415.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 3 as consolidated was/were assigned by ▇▇▇▇▇▇▇ Export
Corporation to The Manhattan Savings Bank by assignment dated 10/28/65,
recorded 11/3/65, in Liber 6428 Mp. 414.
4. Mortgage made by ▇▇▇▇▇ ▇▇▇▇▇▇▇ to The Manhattan Savings Bank dated
10/28/65, recorded 11/3/65 in Liber 6428 Mp. 419 to secure the sum of
$431,492.00 and interest.
Consolidation and Extension Agreement made between ▇▇▇▇▇ ▇▇▇▇▇▇▇ and The
Manhattan Savings Bank dated 10/28/65 recorded 11/3/65 in Liber 6428 Mp.
423. Consolidates mortgages 1 thru 4 to form a single lien of $525,00000.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 4 as consolidated was/were assigned by The Manhattan
Savings Bank to The Globe Wernicke Realty Company by assignment dated
6/30/75, recorded 6/30/75, in Reel 344 Page 1469
Extension Agreement made between ▇▇▇ ▇▇▇▇▇▇▇▇ Corp. and The Globe Wernicke
Realty Company dated 11/1/75 recorded 11/5/75 in Reel 354 Page 1956.
Extends mortgages 1 thru 4 as consolidated.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 4 as consolidated was/were assigned by The Globe
Wernicke Realty Company to American Savings Bank, FSB by assignment dated
10/14/86, recorded 10/23/86, in Reel 1133 Page 1269.
5. Mortgage made by ▇▇▇▇▇▇▇ Enterprises Incorporated to American Savings
Bank, FSB dated 10/14/86, recorded 10/23/86 in Reel 1133 Page 1274 to
secure the sum of $3,109,075.34 and interest.
Consolidation, Modification and Extension Agreement made between ▇▇▇▇▇▇▇
Enterprises Incorporated and American Savings Bank, FSB dated 10/14/86
recorded 10/23/86 in Reel 1133 Page 1292. Consolidates mortgages 1 thru 5
to form a single lien of $3,350,000.00.
H-4
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 5 as consolidated was/were assigned by American Savings
Bank, FSB f/k/a American Savings Bank to City Federal Savings Bank by
assignment dated 4/28/88, recorded 5/10/88, in Reel 1400 Page 361.
6. Mortgage made by ▇▇▇▇▇▇▇ Enterprises incorporated to City Federal Savings
Bank dated 5/3/88, recorded 5/10/88 in Reel 1400 Page 367 to secure the
sum of $7,186,901.72 and interest.
Consolidated, Modification and Spreader Agreement made between ▇▇▇▇▇▇▇
Enterprises Incorporated and City Federal Savings Bank dated 5/3/88
recorded 5/10/88 in Reel 1400 Page 435. Consolidates mortgages 1 thru 6 to
form a single lien of $10,510,000.00 and same are modified and spread to
cover those parts of premises not already covered.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 1 thru 6 as consolidated was/were assigned by City Savings
Bank, FSB in conservatorship, resolution trust corporation as conservator
to Barclays Bank PLC and The Day-Ichi Kangyo Bank, Ltd. by assignment
dated 9/18/90, recorded 9/19/90, in Reel 1729 Page 1645.
7. Subordinate Loan Mortgage and Security Agreement made by ▇▇▇▇▇▇▇
Enterprises Incorporated to City Federal Savings Bank dated 5/3/88,
recorded 5/10/88 in Reel 1400 Page 401 to secure the sum of $1,490,000.00
and interest.
ASSIGNMENT OF MORTGAGE
Mortgage(s) 7 was/were assigned by City Savings Bank, FSB in
conservatorship, resolution trust corporation as conservator to Barclays
Bank PLC (Tokyo Branch) and The Dai-Ichi Kangyo Bank Ltd. by assignment
dated 9/18/90, recorded 9/19/90, in Reel 1729 Page 1650.
8. Mortgage made by Ise Hiyoko Inc. to Barclays Bank PLC (Tokyo Branch) and
The Dai-Ichi Kangyo Bank dated 9/18/90, recorded 9/19/90 in Reel 1729 Page
1655 to secure the sum of $2,639,878.66 and interest.
Consolidation, Modification and Extension Agreement made between Ise
Hiyoko, Inc. and Barclays Bank PLC (Tokyo Branch) and The Dai-Ichi Kangyo
Bank dated 9/18/90 recorded 9/19/90 in Reel 1729 Page 1661. Consolidates
mortgages 1 thru 8 to form a single lien of $14,000,000.00 and modifies
and extends same.
COLLATERAL ASSIGNMENT OF MORTGAGE
H-5
Mortgage(s) 1 thru 8 as consolidated was/were assigned by Barclays Bank
PLC (Tokyo Branch) and The Dai-Ichi Kangyo Bank, Ltd. to Orient
Corporation by assignment dated 9/18/90, recorded 9/19/90, in Reel 1729
Page 1702.
ASSIGNMENT OF MORTGAGE
Mortgages 1 thru 8 were assigned by Orient Corporation to Barclays Bank,
PLC (Tokyo Branch) and The Dai-Ichi Kangyo Bank, Ltd. by assignment dated
8/25/95, recorded 8/31/95, in Reel 2238 Page 2018.
ASSIGNMENT OF MORTGAGE
Mortgages 1 thru 8 were assigned by Barclays Bank, PLC (Tokyo Branch) and
The Dai-Ichi Kangyo Bank, Ltd. to Greyrock Capital Group Inc. by
assignment dated 8/25/95, recorded 8/31/95, in Reel 2238 Page 2034.
9. Mortgage made by Ise Hiyoko Inc. to Orient Corporation dated 1/20/93,
recorded 2/1/93 in Reel 1942 Page 458 to secure the sum of $2,000,000.00
and interest.
Mortgage Modification Agreement made by and between Orient Corporation and
Ise Hiyoko, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel 2238
Page 1987.
ASSIGNMENT OF MORTGAGE
Mortgage 9 was assigned by Orient Corporation to Greyrock Capital Group,
Inc. by assignment dated 8/25/95, recorded 8/31/95 in Reel 2238 Page 2008.
10. Mortgage made by Ise Hiyoko Inc. to Orient Corporation dated 1/20/93,
recorded 2/1/93 in Reel 1942 Page 498 to secure the sum of $5,000,000.00
and interest.
Mortgage Modification Agreement made by and between Orient Corporation and
Ise Hiyoko, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel 2238
Page 1994.
ASSIGNMENT OF MORTGAGE
Mortgage 10 was assigned by Orient Corporation to Greyrock Capital Group,
Inc. by assignment dated 8/25/95, recorded 8/31/95 in Reel 2238 Page 2013.
11. Subordinate Mortgage made by Ise Hiyoko, Inc. to Orient Corporation dated
4/6/94, recorded 4/7/94 in Reel 2077 Page 1669 as re-indexed in Reel 2229
Page 503 on 7/31/95 to secure the sum of $7,000,000.00 and interest.
Modification Agreement made by and between Orient Corporation and Ise
Hiyoko, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel 2238
Page 2001.
ASSIGNMENT OF MORTGAGE
H-6
Mortgage 11 was assigned by Orient Corporation to Greyrock Capital Group,
Inc. by assignment dated 8/25/95, recorded 8/31/95 in Reel 2243 Page 915.
Consolidation Agreement made by and between Greyrock Capital Group, Inc.
and Ise Hiyoko, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel
2238 Page 2055.
Consolidates mortgages 1 thru 11 to form a single lien of $28,000,000.00.
Modification and Splitter Agreement made by and between Greyrock Capital
Group, Inc. and Ise Hiyoko, Inc. by agreement dated 8/25/95, recorded
8/31/95 in Reel 2238 Page 2066. Splits mortgages 1 thru 11 as consolidated
into two liens:
a. 1st mortgage (Substitute Mortgage A) in the amount of
$20,000,000.00.
b. 2nd mortgage (Substitute Mortgage B) in the amount of $8,000,000.00.
12. Superior Mortgage - Substitute A made by Ise Hiyoko, Inc. to Greyrock
Capital Group Inc. dated 8/25/95, recorded 8/31/95 in Reel 2238 Page 2080
to secure the sum of $20,000,000.00 and interest.
ASSIGNMENT OF MORTGAGE
Superior Mortgage - Substitute A is being assigned to Credit Suisse First
Boston Mortgage Capital LLC by that certain Assignment of Mortgage from
NationsCredit Commercial Corporation, successor-in-interest to Greyrock
Capital Group, dated as of 8/4/99 and being recorded in the Register's
Office simultaneously herewith.
13. Subordinate Mortgage - Substitute B (the "Mortgage") made by Ise Hiyoko,
Inc. to Greyrock Capital Group Inc. dated 8/25/95, recorded 8/31/95 in
Reel 2238 Page 2147 to secure the sum of $8,000,000.00 and interest.
ASSIGNMENT OF MORTGAGE
The Mortgage was assigned by Greyrock Capital Group Inc. to Harayokey,
Inc. by assignment dated 8/25/95, recorded 8/31/95 in Reel 2238 Page 2152.
Subordination Agreement made by and between Greyrock Capital Group Inc. to
Harayokey, Inc. by agreement dated 8/25/95, recorded 8/31/95 in Reel 2238
Page 2135. Subordinates mortgage in Reel 2238 Page 2147 to mortgage in
Reel 2238 Page 2080.
ASSIGNMENT OF MORTGAGE
The Mortgage is being assigned to Credit Suisse First Boston Mortgage
Capital LLC by that certain Assignment of Mortgage made by Harayokey,
Inc., dated as of 8/4/99 and being recorded in the Register's Office
simultaneously herewith.
H-7
14. MORTGAGE made by ISE ▇▇▇ ▇▇▇▇▇▇▇▇, LLC to Credit Suisse First Boston
Mortgage Capital LLC dated as of 8/4/99 and to be recorded to secure the
sum of $9,731,893.37 and interest.
AMENDED, RESTATED AND CONSOLIDATED MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS AND SECURITY AGREEMENT made between ISE 555 Broadway, LLC and Credit
Suisse First Boston Mortgage Capital LLC dated as of 8/4/99 and to be
recorded.
Consolidates Mortgages 1 through 14 above to form a single first lien of
$34,000,000.00. and interest.
H-8
EXHIBIT I
TENANT'S LETTER OF CREDIT
[ISSUING BANK]
[Date]
Beneficiary:
[Landlord or Landlord's Mortgagee
(if required by Landlord's Mortgagee)]
Ref: Irrevocable Letter of Credit No. __________
Gentlemen:
By order of our client, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., having an office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, we hereby open in your favor our irrevocable standby Letter of
Credit No. __________ for the aggregate sum of One Million United States
Dollars, (U.S. $1,000,000.00) effective immediately and expiring at our [address
of Bank] New York Office on __________ or any automatically extended date.
Funds under this Letter of Credit are available to you against presentation of
your sight draft(s) drawn on us marked "drawn under Irrevocable Letter of Credit
No. __________ date [date of Letter of Credit]", and accompanied by the
following:
Beneficiary's signed statement that ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. has failed to comply with
the terms and conditions of a contract described as Amended and Restated Lease
between ISE 555 Broadway, LLC, as Landlord, and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. as Tenant, dated
August 1, 1999 and that the beneficiary is entitled to draw on this Letter of
Credit.
It is a condition of this Letter of Credit that it shall be deemed automatically
extended without amendment for one year from the present or any future
expiration date hereof, unless thirty (30) days prior to any such date we shall
notify you by registered mail that we elect not to consider this Letter of
Credit renewed for any such additional period. Upon receipt by you of such
notice,
I-1
you may draw hereunder by means of your draft on us at sight, accompanied by the
original Letter of Credit.
This Letter of Credit is transferrable in whole but not in part by the
beneficiary upon notice to the undersigned, together with the payment of a
transfer charge of one-quarter of one percent of the amount of this Letter of
Credit. Requests for transfer will be in the form of Annex A attached hereto,
duly completed by an officer of your company and accompanied by the original of
this Letter of Credit.
If we receive your sight draft as mentioned above, in accordance with the terms
and conditions of this credit, here at our [address], New York Office we will
promptly honor the same.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision) International Chamber of Commerce Brochure
No. 500, shall be deemed to be a contract made under, and as to matters not
governed by the UCP, shall be governed by and construed in accordance with the
laws of the State of New York and applicable U.S. Federal Law.
[Name of Bank]
By: __________________________
Authorized Signature
Title:
[ANNEX A TO BE ADDED BY ISSUING BANK, IF REQUIRED]
I-2
SCHEDULE 1
SUBLEASES
1. Indenture of Lease dated as of March 17, 1998, between ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. and
DFS Group, L.P., as amended by Commencement Date Agreement dated May 20,
1998, and as assigned by DFS Group, L.P. to Sephora USA, LLC, for a
portion of ground floor space in the Building.
2. Sublease dated as of April 4, 1999, between ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. and Federal
Express Corporation, for a portion of ground floor space in the Building.
3. Sublease dated as of August 1, 1999, between ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. and ISE New
York, LLC, for a portion of space on the first floor below grade in the
Building.
I-3
SCHEDULE 2
ANNUAL RENTAL
Period Annual Rental
8/1/99 - 7/31/02 $4,200,000
8/1/02 - 7/31/07 $4,620,000
8/1/07 - 7/31/12 $5,313,000
8/1/12 - 7/31/16 $6,163,080
8/1/16 - 7/31/19 $7,149,173
8/1/19 - 7/31/24 $8,042,820
8/1/24 - 7/31/29 $9,048,172
I-4