REAL ESTATE LEASE

Exhibit 10(qqq)

 

REAL ESTATE LEASE

BETWEEN

4101 AUSTIN BOULEVARD CORP.,

Landlord

and

FRUCTIBAIL INVEST,

Tenant

 

Dated February 27, 2006

 

 

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TABLE OF CONTENTS

 

 

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AGREEMENT OF REAL ESTATE LEASE, made as of this February 27, 2006, between 4101 AUSTIN BOULEVARD CORP., a New York corporation (“ Landlord ”), and FRUCTIBAIL INVEST, a French société civile (“ Tenant ”),

WITNESSETH:

The parties hereto, for themselves, their legal representatives, successors and assigns, hereby covenant as follows.

DEFINITIONS

“ AAA ” shall mean the American Arbitration Association, or its successor.

“ Additional Rent ” shall mean all additional rent and other amounts payable by Tenant to Landlord under this Real Estate Lease other than Fixed Rental.

“ Affiliate ” shall mean a Person which shall (1) Control, (2) be under the Control of, or (3) be under common Control with, the Person in question. Solely with respect to the references to Affiliates contained in the definitions of NBP Sub Change of Control and BNY Change of Control, the ownership threshold contained in the definition of “Control” shall be deemed to be 75% rather than 50%.

“ After-Tax Basis ” shall mean the basis or position leaving the beneficiary of a payment or deduction provided for by this Real Estate Lease in no better and no worse position than that which it would have been in had the event which gave rise to the payment or deduction obligation not occurred. The party receiving a payment that is to be made on an After-Tax Basis will provide computations in reasonable detail; provided , however , that neither party shall have the right to examine the other party’s books or records and nothing herein shall require either party to manage its tax affairs in any manner other than as it sees fit.

“ Alterations ” shall mean alterations, installations, improvements, additions or other physical changes (other than decorations) in or about the Premises.

“ Assigned Leases ” shall mean those leases set forth in Schedule 2 .

“ Bankruptcy Code ” shall mean 11 U.S.C. Section 101 et seq. , or any statute of similar nature and purpose.

“ BNY ” shall mean The Bank of New York Company, Inc., a New York corporation.

“ BNY Change of Control ” shall mean, at any time, any Person who is not an Affiliate, or two or more Persons who are not Affiliates, as the case may be, of any member of the BNY Group, shall have acquired direct or indirect ownership of Voting Stock of any member of the BNY Group representing greater than 10% of the combined voting power of all Voting Stock of such member of the BNY Group.

“ BNY Group ” shall mean BNY, Landlord and the Bank of New York, a New York corporation.

 

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“ BNY Guarantee ” shall mean the Guarantee, dated as of the date hereof, executed by BNY in favor of Tenant pursuant to which BNY guarantees the payment and performance of the obligations of Landlord under this Real Estate Lease.

“ Building ” shall mean the One Wall Street Building or the 101 Barclay Street Building, and “ Buildings ” shall mean both of such buildings, collectively.

“ Building Systems ” shall mean the mechanical, gas, electrical, sanitary, heating, air conditioning, ventilating, elevator, plumbing, life-safety and other similar service systems of the Buildings.

“ Business Days ” shall mean all days other than Saturdays, Sundays and holidays on which banks in New York State or Paris, France are authorized or required to be closed.

“ Change of Law ” shall mean (i) the passing of, or (ii) a change in or (iii) the introduction, proposal, issuance or repeal of, any law, rule, notice, announcement, regulation or regulatory requirement, directive or interpretation thereof or in the published practice or policy (or in the final application thereof, including for the avoidance of doubt, material changes to administrative procedures such as forms or elections necessary to the claiming of any tax benefit) of any government, governmental department, tax authority, agency or regulatory authority or supervisory body of any country, or in any treaty, in each case not actually or prospectively in force at the date of this Real Estate Lease, or any change or development in the interpretation by any court, governmental department, tax authority or regulatory authority of any country of any of the foregoing, in each case occurring or made known to any of the parties hereto after the date of this Real Estate Lease, whether or not such measure applies retroactively and whether or not such measure constitutes a change from a prior position on the same issue.

“ Control ” shall mean direct or indirect ownership of more than 50% of (i) the outstanding voting stock of a corporation, or (ii) other equity interest if not a corporation, together with in each case the possession of power to direct or cause the direction of the management and policy of such corporation or other entity, whether through the ownership of voting securities, by statute or according to the provisions of a contract.

“ Default Rate ,” with respect to any period for which an amount payable hereunder has not been paid when due, shall mean an annual interest rate equal to (i) with respect to amounts payable in Dollars hereunder, LIBOR for such period plus 1% and (ii) with respect to amounts payable in Euros hereunder, EURIBOR for such period plus 1%.

“ Dollars ” and “ $ ” shall mean lawful money of the United States of America.

“ Early Termination Amount ” shall mean the amount payable in Euros by Landlord to Tenant in reimbursement of pre-paid Fixed Rent upon the expiration or earlier termination of this Real Estate Lease for any reason whatsoever, which amount shall be determined in accordance with the schedule of payments set forth in Exhibit B .

“ Effective Date ” shall have the meaning set forth in Section 1.1 hereof.

 

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“ Environmental Law ” shall mean any and all applicable Federal, state or local laws, rules, orders, permits, regulations, statutes, ordinances, codes or decrees of any Governmental Authority or common law regulating or imposing liability or standards of conduct concerning human health, natural resources or the environment, as now or may at any time hereafter be in effect, including, without limitation, the Clean Water Act, the Clean Air Act, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, the Emergency Planning and Community Right-to Know Act, the Resource Conservation and Recovery Act, the Safe Drinking Water Act, the Hazardous and Solid Waste Amendments of 1984, the Federal Insecticide, Fungicide and Rodenticide Act, the Toxic Substances Control Act and the Solid Waste Disposal Act of 1965, in each case, with each amendment, supplement or modification thereto and as each shall be amended, supplemented or modified in the future, their state or municipal equivalents, and the Federal, state or municipal regulations promulgated thereunder.

“ Expiration Date ” shall mean the Fixed Expiration Date or such earlier or later date on which the Term shall sooner or later end pursuant to any of the terms, conditions or covenants of this Real Estate Lease or pursuant to law.

“ EURIBOR ” shall mean, in respect of any period for which EURIBOR is to be determined, the rate per annum determined by the Banking Federation of the European Union which appears on Telerate Page 248 (or such other pages as may replace Page 248 on that service or such other service as may be nominated by the Banking Federation of the European Union (including the Reuters Screen) as the information vendor for the purposes of displaying Banking Federation of the European Union offered rates for deposits in Euros) at approximately 11:00 a.m. two Business Days prior to the first Business Day of such period for a term comparable to the term for with EURIBOR is to be determined or, if a rate for such term is not so quoted, a rate determined by a straight-line interpolation of the rates quoted for the term next longer and the term next shorter than such term. If, for any reason, such rate is not available, the term “EURIBOR” shall mean the rate per annum on the Reuters Screen as the offered rate for deposits in Euros at approximately I 1:00 a.m. two Business Days prior to the first Business Day of such period for a term comparable to the term for which EURIBOR is to be determined or, if a rate for such term is not so quoted, a rate determined by a straight line interpolation of the rates quoted for the term next longer and the term next shorter than such term; provided, however, if more than one rate is specified for a term comparable to the interest period contemplated on the Reuters Screen, the applicable rate shall be the arithmetic mean of all such rates. If EURIBOR cannot be determined in accordance with the foregoing provision then EURIBOR shall be the arithmetic mean of quotations provided by each of ABN AMRO, HSBC, BNP Paribas, Deutsche Bank and Société Générale, as each such bank’s interbank offered rate for deposits in Euros to leading banks in the European interbank market at approximately 11:00 a.m. two Business Days prior to the first Business Day of such interest period, provided, that if any of such banks fails to supply any such offered rate by 1:00 p.m. on the required date, EURIBOR for the relevant interest period shall be determined on the basis of the quotations provided by the remaining such banks.

“ Euros ” shall mean the lawful currency of the European Monetary Union.

 

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“ Fixed Expiration Date ” shall have the meaning set forth in Section 1.1 hereof.

“ Fixed Rent ” shall have the meaning set forth in Section 1.2 hereof.

“ Governmental Authority (Authorities) ” shall mean the United States of America, the State of New York, the City of New York, any political subdivision thereof and any agency, department, commission, board, bureau or instrumentality of any of the foregoing, or any quasigovernmental authority, now existing or hereafter created, having jurisdiction over the Premises or any portion thereof.

“ Gross-up Amount ” shall have the meaning set forth in Section 39.1 hereof.

“ Guaranties ” or “ Guarantees ” shall mean the BNY Guarantee and the NBP Guarantee.

“ HVAC ” shall mean heat, ventilation and air conditioning.

“ HVAC Systems ” shall mean the Building Systems providing HVAC.

“ Landlord ”, on the date as of which this Real Estate Lease is made, shall mean 4101 Austin Boulevard Corp., a New York corporation having an office at One Wall Street, New York, NY 10286, together with any successor or assignee thereof permitted pursuant to the terms of this Real Estate Lease.

“ Landlord Indemnitees ” shall mean Landlord, the principals comprising Landlord and its and their respective Affiliates, partners, members, shareholders, officers, directors, employees, agents and contractors.

“ Landlord Parties ” shall have the meaning set forth in Section 38.3 hereof.

“ Landlord Termination Event ” shall have the meaning set forth in Section 16.1 hereof.

“ LIBOR ” shall mean, in respect of any period for which LIBOR is to be determined, the rate per annum appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in US dollars at approximately 11:00 a.m. two Business Days prior to the first Business Day of such period for a term comparable to the term for which LIBOR is to be determined or, if a rate for such term is not so quoted, a rate determined by a straight-line interpolation of the rates quoted for the term next longer and the term next shorter than such term. If, for any reason, such rate is not available, the term “LIBOR” shall mean the rate per annum on Reuters Screen LIBOR01 as the London interbank offered rate for deposits in US dollars at approximately 11:00 a.m. two Business Days prior to the first Business Day of such period for a term comparable to the term for which LIBOR is to be determined or, if a rate for such term is not so quoted, a rate determined by a straight line interpolation of the rates Real Estate Lease quoted for the term next longer and the term next shorter than such term; provided, however, if more than one rate is specified for a term comparable to the interest period contemplated on Reuters Screen LIBOR01, the applicable rate shall be the arithmetic mean of all such rates. If LIBOR cannot be determined in accordance with the foregoing provision then LIBOR shall be the arithmetic mean of quotations provided by each of ABN AMRO, HSBC,

 

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BNP Paribas, Deutsche Bank and Société Générale, as each such bank’s London interbank offered rate of exchange at 11:00 a.m. two Business Days prior to the first Business Day of such period for the relevant term.

“ NBP ” shall mean Natexis Banques Populaire, a French société anonyme having its registered office at 45, rue Saint Dominique, 75007 Paris, and registered under number 542 044 524 R.C.S. with the Registre du commerce et des sociétés of Paris.

“ NBP Guarantee ” shall mean the Guarantee, dated as of the date hereof, executed by NBP, in favor of Landlord pursuant to which NBP guarantees the payment and performance obligations of Tenant under this Real Estate Lease.

“ NBP Sub Change of Control ” shall mean, at any time, any Person who is not an Affiliate, or two or more Persons who are not Affiliates, as the case may be, of Tenant shall have acquired any ownership interest in Tenant.

“ Notice Period ” shall have the meaning set forth in Section 27.2 hereof.

“ One Wall Street Building ” shall mean all buildings, equipment and other improvements and appurtenances of every kind and description now located or hereafter erected, constructed or placed upon, and any and all alterations, and replacements thereof, additions thereto and substitutions therefor, situated on and including the land commonly known by the address One Wall Street, New York, NY.

“ 101 Barclay Building ” shall mean all buildings, equipment and other improvements and appurtenances of every kind and description now located or hereafter erected, constructed or placed upon, and any and all alterations, and replacements thereof, additions thereto and substitutions therefor, situated on and including the land commonly known by the address of 101 Barclay Street, New York, NY.

“ Person(s) or person(s) ” shall mean any natural person or persons, a partnership, a limited liability company, a corporation and any other form of business or legal association or entity.

“ Premises ” shall mean the land particularly described in Exhibit A together with all improvements thereon including the Building Systems and Buildings commonly known as 101 Barclay Street, New York, NY and One Wall Street, New York, NY.

“ Real Estate Lease ” shall mean this Real Estate Lease together with all exhibits and schedules annexed hereto and made a part hereof, as the same may be amended from time to time.

“ Real Estate Tax Account ” shall have the meaning given to such term in Section 27.1.

“ Real Estate Tax Account Funding Date ” shall have the meaning given to such term in Section 27.1.

“ Rental ” shall mean and be deemed to include the Fixed Rent and all Additional Rent.

 

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“ Requirements ” shall mean all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes and executive orders, extraordinary as well as ordinary, of all Governmental Authorities now existing or hereafter created, and of any and all of their departments, agencies and bureaus, having the force of law affecting the Premises or any portion thereof, or any street, avenue or sidewalk comprising a part of or in front thereof or any vault in or under the same, or requiring removal of any encroachment, or affecting the maintenance, use or occupation of the Premises or any portion thereof.

“ Rules and Regulations ” shall mean the rules and regulations annexed hereto and made a part hereof as Schedule 1 , and such other and further reasonable rules and regulations as Landlord or Landlord’s agents may from time to time adopt, on such notice to be given as Landlord may elect, subject to Tenant’s right to dispute the reasonableness thereof as provided in Article 8 hereof.

“ Severable Alterations ” shall mean non-structural modifications or alterations that can be removed from the subject property without causing any material damage to such property and which are not mandated to be part of the subject property pursuant to any Requirement.

“ SNDA ” shall mean a subordination, nondisturbance and attornment agreement, in recordable form, which provides for all terms set forth in Section 37.1 hereof and is in commercially reasonable form.

“ SNDA-Eligible Sublease ” shall mean a written sublease that Tenant enters into in good faith that meets the following criteria: (i) the configuration of the subleased space is commercially reasonable; (ii) any “free rent” or rent abatement periods are commercially reasonable; (iii) the sublease rent and escalations are commercially reasonable; and (iv) the sublease does not violate the express terms of this Real Estate Lease.

“ Taxes ” shall mean the aggregate amount of real estate taxes and any general or special assessments (exclusive of penalties and interest thereon) imposed upon the Premises (including, without limitation, (i) assessments made upon or with respect to any “air” and “development” rights now or hereafter appurtenant to or affecting the Premises, (ii) any fee, tax or charge imposed by any Governmental Authority for any vaults, vault space or other space within or outside the boundaries of the Premises, and (iii) any taxes or assessments levied after the Effective Date in whole or in part for public benefits to the Premises, including, without limitation, any Business Improvement District taxes and assessments and any commercial rent occupancy taxes) without taking into account any discount that Landlord may receive by virtue of any early payment of Taxes; provided, that if because of any change in the taxation of real estate, any other tax or assessment, however denominated (including, without limitation, any franchise, income, profit, sales, use, occupancy, gross receipts or rental tax) is imposed upon Landlord or the occupancy, rents or income therefrom, in substitution for any of the foregoing Taxes, such other tax or assessment shall be deemed part of Taxes computed as if Landlord’s sole asset were the Premises. With respect to any tax year, all reasonable and customary expenses, including attorneys’ fees and disbursements, experts’ and other witnesses’ fees, incurred in contesting the validity or amount of any Taxes or in obtaining a refund of Taxes shall be considered as part of the Taxes for such tax year. Anything contained herein to the contrary notwithstanding, Taxes shall not be deemed to include (w) any taxes on Landlord’s income, (x)

 

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franchise taxes, (y) estate or inheritance taxes (z) any similar taxes imposed on Landlord, unless such taxes are levied, assessed or imposed in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions which now constitute Taxes.

“ Tenant ” shall mean Fructibail Invest, a French société civile having its registered office at 115, rue Montmartre, 75002 Paris and registered under number 485 307 904 R.C.S. with the Registre du commerce et des sociétés of Paris.

“ Tenant Indemnitees ” shall mean Tenant, the principals comprising Tenant and its and their direct or indirect partners, members, shareholders, officers, directors, employees and contractors.

“ Tenant-Paid Taxes ” shall mean all Taxes assessed or charged against the Premises to the extent payable during the Term. Anything contained herein to the contrary notwithstanding, Tenant-Paid Taxes shall not be deemed to include (w) any taxes on Landlord’s income, (x) franchise taxes, (y) estate or inheritance taxes or (z) any similar taxes imposed on Landlord, unless such taxes are levied, assessed or imposed in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions which now constitute Tenant-Paid Taxes.

“ Tenant’s Property ” shall have the meaning set forth in Section 3.1 (B) hereof.

“ Tenant Termination Event ” shall have the meaning set forth in Section 16.2.

“ Term ” shall mean a term which shall commence on the Effective Date and shall expire on the Expiration Date.

“ Transaction Document ” shall mean this Real Estate Lease and any other document designated as a Transaction Document by the Landlord, the Tenant or their respective Affiliates in connection with the transactions contemplated hereby or in respect of the Premises.

“ Treaty ” shall mean the Convention between the Government of the United States of America and the Government of the French Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital, signed August 31, 1994, as amended by any applicable protocol, or any successor treaty.

“ Unavoidable Delays ” shall have the meaning set forth in Article 25 hereof.

“ Voting Stock ” shall mean the capital stock or other ownership interests having ordinary voting power under ordinary circumstances for the election of directors (or the equivalent) of the subject corporation, association or other entity.

“ Withholding Tax ” shall mean any tax imposed by means of withholding or deduction, including any interest or penalties relating to such tax.

WITNESSETH:

WHEREAS, Landlord is the owner of the Premises, Landlord desires to lease the Premises to Tenant, and Tenant desires to lease the Premises from Landlord, on the terms and conditions set forth herein.

 

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NOW, THEREFORE, in consideration of the mutual covenants contained herein, the rental payments to be made hereunder, and for other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, for themselves, their successors and assigns, hereby agree as follows:

ARTICLE 1: DEMISE, PREMISES, TERM, RENT

Section 1.1. Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the Premises upon all of the terms set forth in this Real Estate Lease, for the Term to commence on March 3, 2006 (the “ Effective Date ”) and to expire at 5:00 P.M., Eastern Time on March 3, 2031 (the “ Fixed Expiration Date ”).

Section 1.2. From and after the Effective Date, the base rent for the Premises (the “ Fixed Rent ”) for the entire Term under this Real Estate Lease shall be an aggregate amount equal to Four Hundred Thirty Five Million Eight Hundred Thousand Euros (€435,800,000) corresponding to the amounts set forth in Exhibit E and payable no later than 9:00 A.M. Eastern Time on the Effective Date. The Fixed Rent shall be allocated, for purposes of Articles 10 and 11, as follows: €236,850,000 shall be allocable to the One Wall Street Building and €198,950,000 shall be allocable to the 101 Barclay Building. Tenant shall pay all Additional Rent when due and owing hereunder.

ARTICLE 2: USE AND OCCUPANCY

The Premises shall be used and occupied for general office purposes and for any other purpose permitted by the certificates of occupancy affecting the Premises as from time to time amended.

ARTICLE 3: ALTERATIONS

Section 3.1. (1) Prior to making any Alterations which either affect the Building Systems or are estimated to cost in excess of $2,500,000, Tenant shall (i) submit to Landlord plans and specifications (including architectural, mechanical and structural drawings) for each such proposed Alteration and shall not commence any such Alteration without first obtaining Landlord’s approval of such plans and specifications and (ii) obtain all permits, approvals and certificates required by any Governmental Authorities to make such Alterations, it being agreed that any such Alterations as well as the cost to obtain such permits, approvals and certificates shall be made at Tenant’s expense. Upon completion of such Alteration, Tenant, at Tenant’s expense, shall obtain certificates of final approval of such Alteration required by any Governmental Authority and shall furnish Landlord with copies thereof, together with the “as-built” plans and specifications for such Alterations. All Alterations shall be made and performed substantially in accordance with the plans and specifications therefor, if any, as approved by the Landlord, all Requirements and the Rules and Regulations. All materials and equipment to be incorporated in the Premises as a result of any Alterations or a part thereof shall be first quality and no such materials or equipment (other than Tenant’s Property) shall be subject to any lien, encumbrance and chattel mortgage or title retention or security agreement.

 

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(2) Any review or approval by Landlord of any plans and/or specifications or any preparation or design of any plans by Landlord’s architect or engineer (or any architect or engineer designated by Landlord) with respect to any Alteration shall be solely for Landlord’s benefit, and without any representation or warranty whatsoever to Tenant or any other Person with respect to the compliance thereof with any Requirements, the adequacy, correctness or efficiency thereof, or otherwise.

(B) All Tenant’s Property installed by Tenant and all Severable Alterations in and to the Premises which may be made by Tenant at its own cost and expense prior to and during the Term, shall remain the property of Tenant. Tenant, on or prior to the Expiration Date, shall remove from the Premises, at Tenant’s sole cost and expense, all of Tenant’s movable fixtures and movable partitions, telephone and other equipment, all equipment installed heretofore or hereafter by Tenant in connection with the operation of its business, if any, including without limitation, computers, screens, trading stations, and wiring installed by Tenant, and all other equipment, furniture, furnishings, decorations and other items of personal property heretofore or hereafter installed by Tenant (collectively, “ Tenant’s Property ”, it being understood, for the avoidance of doubt, that “Tenant’s Property” shall not include any non-Severable Alterations), and shall repair and restore in good and worker like manner to good condition any damage to the Premises or the Buildings caused by such removal. Tenant’s Property shall not include any property of any subtenants of all or any part of the Premises.

(C) (1) All Alterations shall be performed, at Tenant’s sole cost and expense, by contractors, subcontractors or mechanics approved by Landlord in its sole discretion. Prior to making an Alteration that is a Severable Alteration, at Tenant’s request, Landlord shall furnish Tenant with a list of contractors who charge commercially competitive rates and who may perform Alterations to the Premises on behalf of Tenant. If Tenant engages any contractor set forth on the list with respect to such Severable Alteration, Tenant shall not be required to obtain Landlord’s consent for such contractor unless, prior to the earlier of (a) entering into a contract with such contractor, and (b) commencement of work by such contractor, Landlord shall notify Tenant that such contractor has been removed from the list. Any Alteration that is a non-Severable Alteration shall be subject to Landlord’s prior written consent, which consent may be withheld in Landlord’s sole discretion.

(2) Notwithstanding the foregoing, with respect to any Severable Alteration affecting any Building System, (i) Tenant shall select a contractor from a list of approved contractors furnished by Landlord to Tenant (containing least three contractors who charge commercially competitive rates) and (ii) such Severable Alteration shall, at Tenant’s cost and expense, be designed by Tenant’s consultants and approved by Landlord in its sole discretion.

Section 3.2. Tenant shall pay to Landlord from time to time in connection with the performance of any Alterations, no later than thirty (30) days after demand therefor, as additional rent, a fee equal to the commercially competitive rate charged by a third party independent licensed architect or engineer, chosen by Landlord, to review the plans and specifications, if any, for such Alterations.

 

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Section 3.3. Upon the request of Tenant, Landlord, at Tenant’s cost and expense, shall join in any applications for any permits, approvals or certificates required to be obtained by Tenant in connection with any permitted Alteration (provided that the provisions of the applicable Requirement shall require that Landlord join in such application) and shall otherwise cooperate with Tenant in connection therewith, provided that Landlord shall not be obligated to incur any cost or expense, including, without limitation, attorneys’ fees and disbursements, or suffer any liability in connection therewith.

ARTICLE 4: REPAIRS-FLOOR LOAD

Section 4.1. Landlord at its sole expense shall operate, maintain and make, or cause to be operated, maintained and made, all necessary repairs (both structural and nonstructural) to the Building Systems to keep the same in good condition and repair, normal wear and tear excepted.

Section 4.2. Tenant shall not place a load upon any floor of the Premises exceeding the floor load per square foot area which such floor was designed to carry and which is allowed by Requirements. Business machines and mechanical equipment shall be placed and maintained by Tenant at Tenant’s expense in settings sufficient in Landlord’s reasonable judgment to absorb and prevent vibration, noise and annoyance. Except as expressly provided in this Real Estate Lease, there shall be no allowance to Tenant for a diminution of rental value and no liability on the part of Landlord by reason of inconvenience, annoyance or injury to business arising from Landlord, Tenant or others making, or failing to make, any repairs, alterations, additions or improvements in or to any portion of the Premises.

Section 4.3. Landlord shall use its reasonable efforts to minimize interference with Tenant’s and Tenant’s subtenants’ use and occupancy of the Premises in making any repairs, alterations, additions or improvements.

ARTICLE 5: CERTAIN LANDLORD RIGHTS

Section 5.1. Any Building employee to whom any property shall be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant’s agent with respect to such property and neither Landlord nor its agents shall be liable for any damage to property of Tenant or of others entrusted to employees of the Building, nor for the loss of or damage to any property of Tenant by theft or otherwise. Neither Landlord nor its agents shall be liable for any injury (or death) to persons or damage to property resulting from fire or other casualty, nor shall Landlord or its agents be liable for any such injury (or death) to persons or damage caused by other tenants or persons in the Buildings or caused by construction of any private, public or quasi-public work; nor shall Landlord be liable for any injury (or death) to persons or damage to property improvements resulting from any latent defect in the Buildings (provided that the foregoing shall not relieve Landlord from its obligations, if any, to repair such latent defect pursuant to the provisions of Article 4 hereof).

Section 5.2. If at any time any windows of the Premises are temporarily closed, darkened or bricked-up due to any Requirement or by reason of repairs, maintenance, alterations, or improvements to the Building, or any of such windows are permanently closed, darkened or

 

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bricked-up due to any Requirement, Landlord shall not be liable for any damage Tenant may sustain thereby and Tenant shall not be entitled to any compensation therefor, nor abatement or diminution of any item of the Rental, nor shall the same release Tenant from its obligations hereunder, nor constitute an actual or constructive eviction, in whole or in part, by reason of inconvenience or annoyance to Tenant, or injury to or interruption of Tenant’s business, or otherwise, nor impose any liability upon Landlord or its agents. If at any time the windows of the Premises are temporarily closed, darkened or bricked-up, as aforesaid, then, unless Tenant is required pursuant to this Real Estate Lease to perform the repairs, maintenance, alterations, or improvements, or to comply with the Requirements, which resulted in such windows being closed, darkened or bricked-up, Landlord shall perform, or cause to be performed, such repairs, maintenance, alterations or improvements to the extent required by applicable Requirements with reasonable diligence and otherwise take such action as may be reasonably necessary to minimize the period during which such windows are temporarily closed, darkened or bricked-up.

ARTICLE 6: REQUIREMENTS OF LAW

Tenant and Landlord shall comply with all Requirements applicable to the use, ownership and maintenance of the Premises, including, without limitation, those applicable to the Tenant’s making of any Alterations therein or Landlord’s repairs thereto or the result of the making thereof. Neither Tenant nor Landlord shall do or permit to be done any act or thing upon the Premises which will invalidate or be in conflict with a standard “all-risk” insurance policy; nor shall Tenant or Landlord do anything in the Premises, or permit anything to be done in or upon the Premises, or bring or keep anything therein, except as now or hereafter permitted by the New York City Fire Department, or other authority having jurisdiction.

ARTICLE 7: ENCUMBRANCES

Section 7.1. There shall be no restriction on Landlord’s right to amend or modify any encumbrance existing with respect to the Premises on the date hereof but Landlord shall not further encumber, mortgage, pledge or hypothecate the Premises during the Term; provided , that any such amendment or modification of an existing encumbrance which may have a material adverse effect on the use or occupancy of the Premises shall require the prior consent of the Tenant. Any mechanics lien filed against the Premises for work claimed to have been done for, or materials claimed to have been furnished to, Landlord shall be discharged or bonded over by Landlord no later than thirty (30) days after Landlord shall have received notice thereof. Any lien filed against the Premises for non-payment of Taxes (other than Tenant-Paid Taxes) shall be discharged by Landlord no later than thirty (30) days after Landlord shall have received notice thereof. Any mechanics lien filed against the Premises for work claimed to have been done for, or materials claimed to have been furnished to, Tenant shall be discharged by Tenant no later than thirty (30) days after Tenant shall have received notice thereof. Any lien filed against the Premises as a result of non-payment of Tenant-Paid Taxes, that has not been contested, shall be discharged by Tenant no later than thirty (30) days after Tenant shall have received notice thereof.

Section 7.2. Tenant hereby irrevocably waives any and all right(s) it may have in connection with any zoning lot merger or transfer of development rights with respect to the Premises

 

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including, without limitation, any rights it may have to be a party to, to contest, or to execute, any Declaration of Restrictions (as such term is used in Section 12-10 of the Zoning Resolution of The City of New York effective December 15, 1961, as amended) with respect to the Premises, which would cause the Premises to be merged with or unmerged from any other zoning lot pursuant to such Zoning Resolution or to any document of a similar nature and purpose, and Tenant agrees that this Real Estate Lease shall be subject and subordinate to any declaration of restrictions or any other document of similar nature and purpose now affecting the Premises. In confirmation of such subordination and waiver, Tenant shall execute and deliver promptly any certificate or instrument that Landlord reasonably may request in a form consented to by Tenant (such consent not to be unreasonably withheld).

ARTICLE 8: RULES AND REGULATIONS

Landlord and Tenant and each of their respective contractors, employees, agents, visitors, invitees and licensees shall comply with the Rules and Regulations. Tenant shall have the right to dispute the reasonableness of any additional Rule or Regulation hereafter adopted by Landlord. If Tenant disputes the reasonableness of any additional Rule or Regulation hereafter adopted by Landlord, the dispute shall be determined by arbitration in the City of New York in accordance with the rules and regulations then obtaining of the AAA. Any such determination shall be final and conclusive upon the parties hereto. The right to dispute the reasonableness of any additional Rule or Regulation shall be deemed waived unless the same shall be asserted by service of a notice upon Landlord no later than thirty (30) days after receipt by Tenant of notice of the adoption of any such additional Rule Regulation. Nothing contained in this Real Estate Lease shall be construed to impose upon Landlord any duty or obligation to enforce the Rules and Regulations or terms, covenants or conditions in any other lease against any other tenant, and Landlord shall not be liable to Tenant for violation of the same by any other tenant, its employees, agents, visitors or licensees. If any conflict or inconsistency exists between the Rules and Regulations and the provisions of this Real Estate Lease, then the provisions of this Real Estate Lease shall control.

ARTICLE 9: INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT

Section 9.1. Tenant shall obtain and keep in full force and effect (i) an “all risk” insurance policy for Tenant’s Property and all Alterations made by Tenant or on behalf of Tenant (whether before or after the Effective Date) in connection with Tenant’s operations at the Premises in an amount equal to one hundred percent (100%) of the replacement value thereof, and (ii) a policy of commercial general liability (the “ Liability Policy ”), with a broad form contractual liability endorsement which provides, on an occurrence basis, a minimum combined single limit of no less than $5,000,000 (coverage in excess of $1,000,000 may be provided by way of an umbrella/excess liability policy). Tenant shall be named as the loss payee under the insurance policy required by Section 9.1(i) above with respect to all Tenant’s Property and Alterations other than non-Severable Alterations. Landlord shall be named as loss payee with respect to all non-Severable Alterations. Tenant, Landlord, Landlord’s managing agent and Landlord’s agents (whose names shall have been furnished to Tenant) shall all be named as insured parties, as their respective interests may appear, with respect to the Liability Policy. Such Liability Policy shall include a provision under which the insurer agrees to indemnify, defend and hold Landlord,

 

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Landlord’s managing agent and Landlord’s agents harmless from and against, subject to the limits of liability set forth in this Section 9.1 , all cost, expense and liability arising out of, or based upon, any and all claims, accidents, injuries and damages mentioned in Article 34 . In addition, the policy required to be carried pursuant to clause (ii) above shall contain a provision that (a) no act or omission of Tenant shall affect or limit the obligation of the insurer to pay the amount of any loss sustained and (b) each policy shall be non-cancelable with respect to Landlord, Landlord’s managing agent and Landlord’s agents (whose names and addresses shall have been furnished to Tenant) unless thirty (30) days’ prior written notice shall have been given to Landlord by certified mail, return receipt requested, which notice shall contain the policy number and the names of the insured and additional insureds. In addition, upon receipt by Tenant of any notice of cancellation or any other notice from the insurance carrier which may adversely affect the coverage of the insureds under such policy of insurance, Tenant shall immediately deliver to Landlord and any other additional insured hereunder a copy of such notice. The minimum amounts of liability under the Liability Policy shall be a combined single limit with respect to each occurrence in an amount of $5,000,000 for injury (or death) to persons and damage to property, which amount shall be increased from time to time to that amount of insurance which in Landlord’s reasonable judgment is then being customarily required by prudent landlords of institutional first class buildings in New York City. All insurance required to be carried by Tenant pursuant to the terms of this Real Estate Lease shall be effected under valid and enforceable policies issued by reputable and independent insurers permitted to do business in the State of New York, and rated in Best’s Insurance Guide, or any successor thereto (or if there be none, an organization having a national reputation) as having a general policyholder rating of “ A ” and a financial rating of at least “ XIII ”.

Section 9.2. Landlord or its Affiliate shall obtain and keep, or cause to be obtained and kept, in full force and effect insurance against loss or damage by fire and other casualty to the Buildings, including the Alterations (but exclusive of Tenant’s Property and any Alterations made by Tenant or on behalf of Tenant (whether before or after the Effective Date) in connection with Tenant’s operations), as may insurable under then available standard forms of “all-risk” insurance policies, in an amount equal to one hundred percent (100%) of the replacement value thereof or in such lesser amount determined by Landlord. Notwithstanding the foregoing, Landlord shall not be liable to Tenant for any failure to insure, replace or restore any Alterations. If requested by Landlord, Tenant shall cooperate with Landlord and Landlord’s insurance companies in the adjustment of any claims for any damage to the Building or such Alterations. Landlord shall be loss payee under the insurance policies required by this Section 9.2 .

Section 9.3. Tenant shall deliver to Landlord appropriate certificates of insurance, including evidence of waivers of subrogation required to be carried by Tenant pursuant to this Article 9 . Evidence of each renewal or replacement of a policy shall be delivered by Tenant to Landlord at least twenty (20) days prior to the expiration of such policy.

Section 9.4. Tenant acknowledges that Landlord shall not carry insurance on, and shall not be responsible for damage to, Tenant’s Property.

 

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Section 9.5. Tenant shall not obtain any property insurance (under policies required to be maintained pursuant to clause (i) of Section 9.1 or otherwise) that covers the property that is covered by the policies required to be maintained by Landlord pursuant to Section 9.2 .

Section 9.6. Landlord shall have the right from time to time to obtain insurance coverage for the Premises which differs from the insurance coverage required by this Article 9 . Tenant shall have the right to request a description of insurance coverage pertaining to the Premises from Landlord on an annual basis.

ARTICLE 10: DESTRUCTION BY FIRE OR OTHER CAUSE

Section 10.1. If either of the Buildings shall be damaged by fire or other casualty, the damage (with such modifications as shall be required in order to comply with Requirements) shall, so long as neither Landlord nor Tenant has exercised any right it may have to terminate this Real Estate Lease pursuant to Section 10.2, be diligently repaired or cause to be repaired by and at the expense of Landlord to substantially the condition prior to the damage or as Landlord shall otherwise decide and as is otherwise permitted by any subleases. Landlord shall use its reasonable efforts to minimize interference with Tenant’s use and occupancy in making any repairs pursuant to this section.

Section 10.2. Anything contained in Section 10.1 hereof to the contrary notwithstanding, if more than twenty-five percent (25%) of the rentable area of either of the Buildings (or such lesser portion of either of the Buildings as may in Landlord’s judgment cause the affected Building to be uneconomic to rebuild) shall be damaged by fire or other casualty, then Landlord, at Landlord’s option, may, not later than ninety (90) days following the damage, give Tenant a notice in writing terminating this Real Estate Lease with respect to both Buildings. If more than twenty-five percent (25%) of the rentable area of either of the Buildings shall be damaged by fire or other casualty, then Tenant, at Tenant’s option, may, not later than ninety (90) days following the damage, give Landlord a notice in writing terminating this Real Estate Lease with respect to both Buildings. If either Landlord or Tenant elect to terminate this Real Estate Lease, such election shall be made by delivering notice thereof in the form of Exhibit C attached hereto and made a part hereof, the Term shall expire on the tenth (10 ^th ) Business Day after notice is given to the other party, and Tenant shall vacate the Premises and surrender the same to Landlord in accordance with the provisions of Article 20 hereof. In connection with the termination of this Real Estate Lease under the conditions provided for in this Section 10.2 , Landlord shall pay the Early Termination Amount applicable to the Premises to Tenant on the tenth (10th) Business Day after such notice is given. The receipt by Tenant of the Early Termination Amount in the manner provided in Section 38.11 hereof is a condition precedent to the effective termination of this Real Estate Lease.

Section 10.3. (A) Notwithstanding the foregoing, if either of the Buildings shall be substantially damaged during the last year of the Term, Landlord may elect by notice, given no later than thirty (30) days after the occurrence of such damage, to terminate this Real Estate Lease and, if Landlord makes such election, the Term shall expire on the tenth (10th) Business Day after notice of such election is given by Landlord and Tenant shall vacate the Premises and surrender the same to Landlord in accordance with the provisions of Article 20 hereof. Landlord

 

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shall pay the applicable Early Termination Amount to Tenant on the tenth (10th) Business Day after such notice given. The receipt by Tenant of the Early Termination Amount in the manner provided in Section 38.11 hereof is a condition precedent to the effective termination of this Real Estate Lease pursuant to this paragraph.

(B) Notwithstanding the foregoing, if either of the Buildings shall be substantially damaged during the last year of the Term, Tenant may elect by notice, given no later than thirty (30) days after the occurrence of such damage, to terminate this Real Estate Lease and, if Tenant makes such election, the Term shall expire on the tenth (10th) Business Day after notice of such election is given by Tenant and Tenant shall vacate the Premises and surrender the same to Landlord in accordance with the provisions of Article 20 hereof. Landlord shall pay the applicable Early Termination Amount to Tenant on the tenth (10th) Business Day after such notice is given. The receipt by Tenant of the Early Termination Amount in the manner provided in Section 38.11 hereof is a condition precedent to the effective termination of this Real Estate Lease pursuant to this paragraph.

Section 10.4. This Article 10 constitutes an express agreement governing any case of damage or destruction of the Premises or the Buildings by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case.

ARTICLE 11: EMINENT DOMAIN

Section 11.1. If the whole of either of the Buildings shall be acquired or condemned for any public or quasi-public use or purpose, this Real Estate Lease and the Term shall end with respect to both Buildings as of the date of the vesting of title with the same effect as if said date were the Fixed Expiration Date. If only a part of a Building shall be so acquired or condemned then, (i) except as provided in clause (ii) of this Section 11.1 , this Real Estate Lease and the Term shall continue in force and effect; (ii) if (a) the part of the Building so acquired or condemned shall contain more than ten percent (10%) the total area of the affected Building immediately prior to such acquisition or condemnation, or (b) by reason of such acquisition or condemnation, Landlord deems it uneconomic in its judgment to restore the affected Building, or (c) Tenant no longer has reasonable means of access to the affected Building or (d) Landlord or Tenant reasonably shall determine the remainder of the affected Building is unsuitable for the business conducted therein, Landlord or Tenant, at their option, may give to the other, no later than sixty (60) days next following the date upon which either party shall have received notice of the proposed condemnation or acquisition, thirty (30) days’ notice of termination with respect to both Buildings in the form of Exhibit C . If any such notice of termination is given by Landlord or Tenant, Landlord shall pay the applicable Early Termination Amount to Tenant on the thirtieth (30th) day after such notice is given. The receipt by Tenant of the Early Termination Amount in the manner provided in Section 38.11 hereof is a condition precedent to the effective termination of this Real Estate Lease. If a part of a Building shall be so acquired or condemned, and if neither party elects to terminate this Real Estate Lease pursuant to the foregoing provisions of this Section 11.1 , Landlord, at Landlord’s expense, shall restore or cause to be

 

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restored that part of the affected building not so acquired or condemned and the Rental payable under this Real Estate Lease shall not be reduced by reason thereof.

Section 11.2. In the event of any such acquisition or condemnation of all or any part of a Building, Landlord shall be entitled to receive the award for any such acquisition or condemnation; provided that, if Landlord shall fail to pay the relevant Early Termination Amount on the due date thereof, Landlord’s right to receive any such award up to an amount equal to any Early Termination Amount then due and payable shall be deemed to be assigned to Tenant and any such assignment shall be deemed to be effective on the Effective Date.

Section 11.3. If the whole or any part of a Building shall be condemned temporarily during the Term for any public or quasi-public use or purpose, the Term shall not be reduced or affected in any w