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Exhibit 10.21
INDENTURE OF LEASE
BETWEEN
XXXXX XXXXXXXX AND XXXXXXX XXXXXXXX
AND
YOUNG & RUBICAM INC.
July 12, 1984
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TABLE OF CONTENTS
Article Title Page
------- ----- ----
1 Premises 1
2 Base Term 2
3 Rent 3
4 Use 6
5 Delivery of Premises 8
6 Payment of Impositions 12
7 Renewal Options 16
8 Alterations 19
9 Landlord's and Tenant's Property 24
10 Tenant's Right of First Offer 26
11 Maintenance and Repairs 28
12 Insurance 32
13 Damage or Destruction 38
14 Eminent Domain 44
15 Compliance with Laws 47
16 Access 50
17 Notice of Occurrences 51
18 Non-Liability and Indemnification 52
19 Curing Tenant's Defaults 54
20 Brokerage 56
21 Notices 57
22 Estoppel Certificates 59
23 Window Cleaning 60
24 Quiet Enjoyment 61
25 Mechanics' Liens 62
26 Assignment and Sub-Letting 64
27 Subordination 67
28 Excavation and Shoring 70
29 Arbitration 71
30 No Rent Abatement 73
31 Recordable Memorandum 74
32 Surrender 75
33 Conditions of Limitation 76
34 Re-Entry by Landlord 78
35 Damages 79
36 Affirmative Waivers 82
37 No Waivers 83
38 Miscellaneous 84
39 Tenant's Financial Statements 89
40 Building Name 90
41 Sanitary Maintenance 91
42 Syndication Rights 92
43 Definitions 95
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INDENTURE OF LEASE dated the 12th day of July, 1984, by and between Xxxxx
Xxxxxxxx and Xxxxxxx Xxxxxxxx, Tenants in Common, having an office for the
transaction of business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Landlord")
and Young & Rubicam Inc., a corporation organized and existing under the laws of
the State of New York, having an office for the transaction of business at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Tenant")
W I T N E S S E T H:
In consideration of Ten ($10.00) Dollars, other good and valuable
consideration, and the mutual covenants contained herein, and intending to be
legally bound hereby, Landlord and Tenant hereby agree with each other as
follows:
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ARTICLE 1
Premises
Section 1.01 Landlord hereby leases and lets to Tenant, and Tenant hereby
takes and hires from Landlord, upon and subject to the terms, conditions,
covenants and provisions hereof, all that certain tract, piece or parcel of
land, situated in the City of New York, County of New York and State of New
York, more particularly described in Exhibit "A" annexed hereto and made a part
hereof, together with any and all building and improvements now existing or to
be constructed pursuant to the terms hereof ("the Building"), appurtenances,
rights, privileges and easements benefitting, belonging or pertaining thereto,
and any right, title and interest of Landlord in and to any land lying in the
bed of any street, road or highway (open or proposed) to the center line
thereof, in front of or adjoining said tract, piece or parcel of land (all the
foregoing hereinafter sometimes referred to as the "Demised Premises" or the
"Premises")
Section 1.02 The Premises are demised subject to:
(a) the condition of title of the Demised Premises and exceptions
set forth in Exhibit B, hereto annexed.
(b) Landlord's acquisition of fee title to the Demised Premises on
or before December 31, 1984.
(c) Landlord's reservation of all development rights appurtenant
thereto provided, however, that nothing contained herein shall be deemed to
allow Landlord to construct any buildings or improvements on the Demised
Premises other than as set forth in this Lease. In the event that Landlord's
exercise of such rights requires the affirmative action of Tenant, Tenant shall
not be required to take such action unless Landlord incurs the reasonable
expense related thereto and Landlord indemnifies Tenant from any claim related
thereto.
Section 1.03 In the event Tenant wishes to obtain Leasehold Title
Insurance, Tenant shall request such insurance be issued on the date that
Landlord acquires fee title to the Premises. Landlord shall give Tenant at least
fifteen (15) days' notice of the date on which Landlord shall close title. In
the event that American Title Insurance Company will not insure Tenant's
leasehold subject only to those exceptions set forth on Exhibit B (plus such
other exceptions as caused solely by Tenant) then the Commencement Date shall be
delayed until such exceptions are removed. Tenant's failure to request a bona
fide title insurance policy to be issued on such date shall be deemed a waiver
of this Section.
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ARTICLE 2
Base Term
Section 2.01. The "Base Term" of this Lease shall consist of a "Short
Term" if applicable and a "Full Term." The Short Term shall commence on the
Commencement Date and end on November 30, 1985. The Full Term shall commence on
the earlier to occur of ninety (90) days subsequent to the Commencement Date or
December 1, 1985, and shall end at midnight on the nineteenth anniversary of the
expiration of Lease Year One, or on such earlier date upon which the term of
this Lease shall expire or be cancelled or terminated pursuant to any of the
conditions or covenants of this Lease or pursuant to law. Notwithstanding the
foregoing, if the Commencement Date occurs after December 1, 1985 there shall be
no Short Term and the Full Term shall commence on the Commencement Date.
Section 2.02. The "Commencement Date" shall be the earliest to occur of
(a) the date on which the Premises are ready for Tenant's occupancy (as set
forth in Article 5) or (b) the date Tenant, or anyone claiming under or through
Tenant, first occupies the Premises or any part thereof, with Landlord's
consent, for any purpose other than the performance of Tenant's Optional Work
(as defined in Section 5.01), except as otherwise specifically provided in
Section IID 14 of Exhibit C hereto. Promptly following the Commencement Date the
parties hereto shall enter into an agreement in form and substance satisfactory
to land1ord setting forth the Commencement Date.
Section 2.03. "Lease Year One" shall be deemed the first year of the Full
Term and shall commence on the first day of the Full Term and shall end on the
last day of that month determined by subtracting from fifteen (15) months that
number of months as shall equal the difference between the number of calendar
months between the Commencement Date and the commencement of the Full Term. The
term "Lease Year" shall refer to each year of the Term including Lease Year One.
Each succeeding Lease Year, after Lease Year One, shall run for the successive
twelve month period from the expiration of the preceding Lease Year, except the
last Lease Year shall end on the Expiration Date.
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ARTICLE 3
Rent
Section 3.01. Except as set forth in those Sections of this Lease that
specifically provide for abatement, Tenant shall pay to Landlord, without
notice, abatement, deduction or set-off, in lawful money of the United States by
good check drawn on a bank or trust company which is a member of the New York
Clearinghouse Association, or in such other form or fashion as may be reasonably
acceptable to Landlord, at the office of the Landlord or at such other place as
Landlord may designate, the following:
(a) Base annual rent, as hereinafter set forth ("Base Annual Rent"),
in equal monthly installments in advance, on the first day of each and every
calendar month throughout the Term except that if the commencement of the Full
Term occurs on a day other than the first day of a calendar month, the Base
Annual Rent payable for the partial month at the commencement of the Full Term
shall be prorated; similarly if the Full Term shall end on a day other than the
last day of a calendar month, the Base Annual Rent shall be prorated for such
month. The Base Annual Rent for Lease Year One is Seven Million Dollars.
Thereafter, for each successive Lease Year of the Full Term, the Base Annual
Rent shall be increased by three and one-half (3.5%) percent over the preceding
Lease Year's Base Annual Rent (i.e., the Base Annual Rent for Lease Year Two
shall be determined by multiplying $7,000,000 by 1.035; the product shall be
the Base Annual Rent for Lease Year Two and shall be the multiplicand in
determining the Base Annual Rent for Lease Year 3)
(b) Additional payments consisting of all other sums of money as
shall become due from and payable by Tenant hereunder ("Additional Payments");
The term "Rent" shall include Base Annual Rent and Additional Rent, and
Landlord shall have all rights and remedies provided for herein or by law for
the payment of Rent, whether designated Base Annual Rent or Additional Rent. As
a convenience to Tenant, Landlord shall endeavor to send to Tenant, monthly, a
ten day advance memorandum setting forth the next monthly installment of Base
Annual Rent. The failure of
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Landlord to send such memorandum, or if sent, to send an accurate or timely
memorandum, shall in no way relieve Tenant of the obligation to timely pay the
Rent nor in any way mitigate the penalties or late charges otherwise due because
of a late or insufficient payment; except as set forth in Section 3.04.
Section 3.02. If any of the Rent payable under the terms of this Lease
shall be or become uncollectible, reduced or required to be refunded because of
any statute, ordinance, rule or regulation of any Federal, State or City
government or agency, Tenant shall enter into such agreement(s) and take such
other steps as Landlord may reasonably request and as may be legally permissible
to permit Landlord to collect the maximum Rent, but in no event greater than the
Base Annual Rent, which from time to time during the continuance of such legal
rent restriction may be legally permissible. Upon the termination of such legal
rent restriction, so long as the Term has not expired, (a) the Rent shall become
and thereafter be payable in accordance with the amounts reserved herein for the
periods following such termination and (b) Tenant shall pay to Landlord, to the
maximum extent legally permissible, an amount equal to (i) the Rent which would
have been paid pursuant to this Lease but for such legal rent restriction less
(ii) the Rent and payments in lieu of rents paid by Tenant during the period
such legal restriction was in effect.
Section 3.03. No payment by Tenant or receipt or acceptance by Landlord of
a lesser amount than the correct Base Annual Rent or Additional Rent (including
underpayments caused by Landlord's errors or omissions rendering bills or
statements) shall be deemed to be other than a payment on account, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment preclude Landlord from depositing or negotiating such check without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this Lease or at law provided.
Section 3.04. If Tenant shall fail to pay any Rent, within five (5) days
after the same becomes due and payable, Tenant shall pay, in addition to the
Rent then due, the sum of (x) interest calculated on such unpaid amounts at the
lesser of (a) the interest rate applicable to a late payment of interest and
charged by the then Superior Mortgagee (a letter from the Superior Mortgagee or
Landlord's good faith certification of interest rate shall be conclusive as to
such rate), or (b) the maximum rate permitted by law, and (y) any penalties and
late charges incurred by Landlord applicable to the related late payment
actually charged by the Superior Mortgagee, as a result of Landlord's delay
caused by Tenants late payment provided that if there is no Superior Mortgagee
then the interest rate
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shall be equal to the prime interest rate charged by Manufacturers Hanover Trust
Company plus three (3%) per cent or if such rate is in excess of the maximum
rate permitted by law, calculated on the basis of actual days elapsed, based on
a 360-day year, from the date such Rent became due to the date of payment. The
provisions herein for such interest shall not be construed to extend the date
for payment of any sums required to be paid by Tenant hereunder or to relieve
Tenant of its obligation to pay all such sums at the time or times herein
stipulated. Notwithstanding the foregoing, interest on late payments of Base
Annual Rent shall not be due unless Landlord has advised Tenant that the payment
has not been received timely. Landlord shall be relieved of this notice
obligation in each Lease Year after Landlord has sent the fourth such notice.
The sending of any notice, the failure to send a notice, or the failure to send
a timely accurate notice shall not relieve Tenant of its obligation to timely
pay Base Annual Rent.
Section 3.05. It is the intention of the Landlord and the Tenant that the
Rent shall be net to the Landlord throughout the Base Term and the Renewal
Terms; that all costs, expenses and obligations of every kind relating to
Tenant's use and occupancy of the Demised Premises (except as specifically set
forth herein) which may arise or become due during the Base Term and the Renewal
Term shall be paid by Tenant, and Landlord shall be indemnified by Tenant
against such cost, expenses and obligations; provided, however, that Tenant
shall have no obligations to pay any income or franchise tax assessed against
Landlord or the interest or principal on any Superior Mortgage.
Section 3.06. Additional Payments shall be due and payable as Additional
Rent hereunder ("Additional Rent"). Additional Payments shall for these
purposes be deemed due on the first day that such amounts were or become due to
Landlord or any other person to whom such payment is to be made.
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ARTICLE 4
Use
Section 4.01. Tenant shall only use and occupy the Premises for: (a)
executive and administrative offices, (b) art studios, production facilities,
typesetting, slide production, television production and such other uses (other
than light or heavy manufacturing) as are then customary in the
advertising/communications and public relations business or (c) such retail use
as the Landlord shall from time to time reasonably permit (taking into account
the notice of the business of the proposed subtenant as appropriate to a first
class office building in Manhattan) for so long as Messrs. Xxxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx, or an entity referred to in Section 10.02 (c) or (d) hereof,
is the Landlord hereunder From and after such time that Messrs. Xxxxx Xxxxxxxx
and Xxxxxxx Xxxxxxxx, ceases to be the Landlord hereunder, the ground level
space may be used for any lawful purpose. Tenant shall have the right, incident
to the uses set forth in sub-sections (a) and (b) to maintain vending machines,
kitchens, dining and exercise facilities.
Section 4.02. As soon as practicable Landlord shall deliver to Tenant a
Certificate of Occupancy permitting the use of the Demised Premises for general
and executive offices and, with regard to the ground floor, retail sales ("the
Initial Certificate of Occupancy") provided that nothing contained herein shall
limit Landlord's obligation contained in Exhibit C to deliver a temporary
Certificate of Occupancy on Substantial Completion of Base Building and Tenant
Work. If any governmental certificate, license or permit, other than the Initial
Certificate of Occupancy to be obtained by Landlord, shall be required for the
proper and lawful conduct of Tenant's business in the Premises or any part
thereof, Tenant, at its expense, shall duly procure and thereafter maintain such
certificate, license or permit and submit the same to Landlord for inspection.
Tenant shall at all times comply with the terms and conditions of each such
certificate, license or permit.
Section 4.03. Tenant shall not at any time use or occupy or suffer or
permit anyone to use or occupy the Premises, or do or permit anything to be done
in the Premises, in any manner (a) which violates the Certificate of Occupancy
for the Demised Premises or for the Building; (b) which causes injury to the
Demised Premises or any Building Equipment; (c) which constitutes a violation of
applicable laws and regulations or the requirements of any public authorities
with jurisdiction or the requirements of insurance bodies; (d) which impairs the
appearance of the building as a first-class office building;
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(e) which impairs the economic maintenance, operation and repair of the Building
and/or the Building Equipment; or (f) which makes any fire or other casualty
insurance with extended coverage or liability, elevator, boiler, sprinkler, or
other similar insurance unobtainable from insurance companies of the nature
specified in Article 12 authorized to do business in New York at standard rates
provided, however, such insurance shall not be deemed to be unobtainable if such
insurance is obtainable by payment of an additional premium and Tenant pays such
premium.
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ARTICLE 5
Delivery of Premises
Section 5.01. The Demised Premises shall be prepared for Tenant's
occupancy in the manner set forth in Exhibit C annexed hereto and incorporated
herein. "Landlord's Work" is that work required thereby to be done by Landlord
(including labor and materials). "Tenant's Optional Work" is such other work,
materials and installations as Tenant deems necessary or appropriate to prepare
the Demised Premises for occupancy in accordance with the uses permitted
hereunder but which are not included within Landlord's Work. Landlord shall be
responsible for and shall pay for Landlord's Work as provided in Exhibit C
hereto and Tenant shall be responsible and shall pay for Tenant's Optional Work.
Section 5.02. The Premises shall be deemed ready for Tenant's occupancy on
the earlier of (a) the date on which the Premises are Substantially Completed as
set forth in Exhibit C, or (b) the date that Tenant actually takes occupancy of
the Demised Premises other than pursuant to Section II D 14 of Exhibit C.
Landlord shall give Tenant at least one day's written notice of Substantial
Completion as defined in Section 5.03 and the Commencement Date shall be the
date set forth in the notice.
Section 5.03. The Premises shall be deemed Substantially Complete upon a)
Substantial Completion of the Base Building (as such term is defined in Exhibit
C) and b) Substantial Completion of Tenant's Space (as such term is defined in
Exhibit C) provided, however, with respect to those floors denominated
"Untenanted Floors" in Section II E (2) (f) of Exhibit C, such floors shall be
deemed Substantially Complete upon the earlier of (i) Substantial Completion of
(a) and (b) above or (ii) the Substantial Completion of such floors as otherwise
provided in Exhibit C. Nothing contained herein shall be deemed to limit
Landlord's obligation to construct as set forth in Exhibit C. The determination
of Substantial Completion in (a) and (b) above shall be made in accordance with
the provisions of Exhibit C.
Section 5.04. Any items not on Landlord's or Tenant's Punch List as said
terms are used in Exhibit C, other than latent defects that could not reasonably
be discovered during such inspection (or could not reasonably have been
discovered at any prior inspection performed by Tenant's Architect or Tenant's
Construction Consultant while Landlord was performing Landlord's Work) ("Latent
Defects") shall be deemed irrevocably waived by Tenant. Notwithstanding the
foregoing, for purposes hereof Latent Defects in telecommunication and other
work
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performed by Tenant's contractors (as provided in Section III C 2 of Exhibit C)
shall not constitute "Latent Defects" hereunder. Upon receipt of Tenant's Punch
List, Landlord shall diligently and in good faith do or complete the work or
make the repairs required to be made as provided in Exhibit C. The cost of such
repairs, if any, shall be paid in the manner set forth in Exhibit C.
Section 5.05. Punch List shall be defined as a written comprehensive
itemization of the following categories prepared subsequent to Landlord's
declaration of Substantial Completion.
a) all work that is incomplete either in material or in workmanship.
b) all work that is defective either in material or in workmanship.
c) all work that is not in accordance with the Construction
Documents.
The "Punch List" shall be prepared by a licensed Architect who shall
incorporate the accepted guidelines of the Construction Industry for material
and labor standards to be utilized. This definition includes Landlord's Base
Building Punch List and Tenant's Punch List as such terms are used in Exhibit C.
Section 5.06. The Premises shall be presumed to be in satisfactory
condition on the Commencement Date, except for those items referred to on
Tenant's Punch List, as set forth in Section 5.04. Notwithstanding the
foregoing, the taking of occupancy shall not be deemed to be conclusive
evidence, as against Tenant, that Landlord shall have satisfactorily completed
all of Landlord's Work not completed because, a) under good construction
scheduling practice, such work should be done after completion of still
incompleted finishing or other work to be done by or on behalf of Tenant, and
(b) with respect to Latent Defects. As to Latent Defects, Tenant must (i)
conduct at least one inspection of the Premises with Tenant's Architect or
Tenant's Consultants within twelve (12) months from the Commencement Date, and
(ii) give Landlord written certification by Tenant's Architect and Tenant's
Construction Manager that there are Latent Defects in Landlord's Work which
specifies in detail each such Latent Defect. Landlord shall have the right to
enter the Premises to complete or repair any unfinished items and Latent Defects
and entry by Landlord, its agents, servants, employees or contractors for such
purpose shall be without liability to Tenant except for liability arising out of
the negilgence or willful misconduct of Landlord, its agents, servants,
employees
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or contractors. Landlord shall endeavor to cause all repairs to be done in a
manner to cause minimal interference with Tenant's business operations and with
due care for Tenant's property and employees. No defect discovered twelve months
or more subsequent to the Commencement Late shall be deemed a Latent Defect. The
responsibility for the repair of non-Latent Defects is set forth in Article 8.
Section 5.07. If Landlord is unable to give possession of the Premises on
the Commencement Date, because of the fact that a temporary or permanent
Certificate of Occupancy has not been procured, or because the Premises are not
Substantially Completed on any particular date, or for any other reason
(including, but not limited to, the occurrence of an event of Force Majeure),
Landlord shall not be subject to any liability for failure to give possession on
the Commencement Date except as set forth in Section 5.11, and the validity of
this Lease shall not be impaired under such circumstances, nor shall the same be
construed in any way to extend the term of this Lease, but the Base Annual Rent
and Additional Rent payable hereunder shall be abated until Landlord has given
notice to Tenant that the Premises are ready for Tenant's occupancy.
Section 5.08. Tenant hereby waives the provisions of Section 223-a of the
Real Propery Law of the State of New York, and agrees that the provisions of
this Article are intended to constitute "an express provision to the contrary"
within the meaning of Section 223-a.
Section 5.09. Notwithstanding anything herein to the contrary, in the
event that Landlord has not Substantially Completed the Demised Premises by
October 1, 1986, or January 1, 1987 if the delay is caused by Force Majeure,
then and in such event Tenant shall have the right, thereafter upon thirty (30)
days notice to Landlord and the Superior Mortgagee to cancel this Lease. Upon
the expiration of said thirty (30) day period, if the Demised Premises are still
not Substantially Complete, this Lease shall terminate and each party shall have
no further liability to the other. In the event that Tenant exercises this
option Landlord shall reimburse Tenant the amount spent by Tenant for
improvements to the Premises pursuant to Exhibit C.
Section 5.10. In the event that the Demised Premises are not Substantially
Complete on or before November 1, 1985 then Landlord shall, subject to the
limitation in Section 5.11, reimburse to Tenant on the first day of the month
following the month in which the Holdover Expense was incurred the actual
Holdover Expenses incurred by Tenant. As used herein Holdover Expenses means
those actual expenses (including reasonable attorneys fees) of Tenant (or
subsidiaries) incurred because
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Tenant (or subsidiaries) held over beyond the expiration of a lease term
(expiring on or after October 31, 1985) and above and beyond the expenses Tenant
would have incurred had such lease term not expired, but shall not include
incidental damages, loss of income, loss of business, or similar damages. In all
instances Tenant shall substantiate such expense with receipted bills or
invoices or other documentation reasonably satisfactory to Landlord.
Section 5.11. (a) Landlord's liability for Holdover Expenses shall not
exceed $125,000 per month provided that i) in any month wherein Tenant does not
suffer or incur Holdover Expenses in an amount of $125,000 the difference
between $125,000 and the Holdover Expenses for such month shall be available for
the next succeeding month and shall be added to $125,000 for purposes of
determining the reimburseable Holdover Expenses for the next succeeding month or
months; and ii) in the event that Tenant (or subsidiaries) is dispossessed from
its then occupied premises by final judicial process and after utilizing counsel
chosen with Landlord's reasonable consent the Landlord's monthly contribution to
Holdover Expenses shall equal $125,000 plus one-half the amount by which monthly
Holdover Expenses exceed $125,000. In no event shall Landlord be responsible for
more than twenty-four months of Holdover Expenses.
(b) In the event Landlord procures insurance coverage for Holdover
Expenses occasioned by an event of Force Majeure, other than an event of Force
Majeure related to a casualty, Tenant agrees to reimburse Landlord for one-half
of the premium for such insurance up to a maximum reimbursement of $40,000
provided, however, that such insurance coverage shall not exceed $20,000,000.
The reimbursement shall be forthwith paid to Landlord upon Landlord's delivery
to Tenant of a receipted xxxx together with evidence of such insurance coverage.
(c) Notwithstanding anything to the contrary, in the event Tenant incurs
Holdover Expenses because an event of Force Majeure involving an industry wide
labor disturbance that prevents Landlord from timely delivering the Premises,
and such Holdover Expenses are not reimbursed or paid for by insurance proceeds
obtained pursuant to sub-section (b) or otherwise, then Landlord's obligation to
reimburse Tenant for Holdover Expenses shall be limited to one-half of each
month's Holdover Expense occurring after such event of Force Majeure, up to
$62,500 per month plus one-quarter of the remaining expenses.
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ARTICLE 6
Payment of Impositions
Section 6.01. As used herein "Impositions" shall mean all taxes and
assessments, special assessments, special ad valorum levies and service charges
levied, assessed or imposed at any time by any governmental authority or special
district upon or against all or part of the Demised Premises, water and sewer
charges, rates and rents, charges for public utilities, excises, levies, license
and permit fees, and similar charges, now or hereafter levied or assessed
against the Demised Premises or appurtenant to the use thereof and also any tax,
assessment, special assessment, special ad xxxxxxx xxxx or service charge
levied, assessed or imposed at any time by any governmental authority in
connection with the receipt of income or rents from the Demised Premises,
including without limitation all interest, penalties and late charges relating
to the foregoing, to the extent that same shall be in lieu of or in addition to
all or a portion of any of the aforesaid taxes, assessments, special
assessments, special ad valorum levies or service charges upon or against all or
part of the Demised Premises but shall not include income, estate, succession,
inheritance, capital stock, transfer or similar taxes of owner or Landlord or
any franchise taxes imposed upon any corporate owner of the fee of the Demised
Premises or any income, profits or revenue tax, by any municipality, county or
state, the United States of America or any governmental body; provided, however,
that if at any time during the Term of this Lease, the present method of
taxation or assessment shall be so changed that the whole or any part of the
taxes, assessments, levies, impositions or charges now levied, assessed or
imposed on real estate and the improvements thereon shall be levied, assessed
and/or imposed wholly or partially as a capital levy or otherwise on the Rents
(or should it be any form of occupancy or use tax) received from the Demised
Premises or the Rents reserved herein or any part thereof, then such taxes,
assessments, levies, impositions or charges, to the extent so levied, assessed
or imposed, including without limitation all interest, penalties and late
charges relating to the foregoing, shall be deemed to be included within the
term "Impositions" to the extent that such tax would be payable if the Demised
Premises were the only property of the Landlord subject to such tax.
Section 6.02. As Additional Payment during the Term, Tenant will pay or
cause to be paid, as and when the same becomes due, all Impositions, provided,
however, that:
(a) All Impositions for the fiscal year or tax year in which the
Term of this Lease begins as well as all Impositions for the fiscal year or tax
year in which the Term
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of this Lease expires shall be apportioned as of the Commencement Date or
Expiration Date, as the case may be so that Tenant shall pay its proportionate
share o of such Impositions; and
(b) Where payment of any Imposition is permitted by law to be made
in installments, Tenant may pay such Imposition in installments as and when such
installments become due, provided, however, that the amount of all installments
of any such Imposition which will become due and payable up to the Expiration
Date shall remain the responsibility of Tenant.
(c) Where any Imposition is attributable in part to property other
than the Demised Premises or any improvements of property therein (including the
Building Equipment), provided Tenant has paid such amount, Landlord will, on
demand, reimburse Tenant within fifteen (15) days of receipt of demand for the
amount of such Imposition which is attributable to such other property, failing
which Tenant shall have the right to deduct such amount from any Rent theretofor
or thereafter falling due hereunder. Landlord agrees, however, to use its best
efforts, whenever possible and so long as the aggregate amount of the Imposition
is not thereby increased, to effect a division of the property to which the
Imposition is attributable, so that the Demised Premises constitute a separate
and independent property to which any Imposition may be made applicable.
Section 6.03. Except as set forth in Section 6.02(c), Tenant shall pay all
Impositions directly to the taxing authority, and shall deliver to Landlord
within fifteen days upon request, photostatic copies of receipted bills or other
evidence reasonably satisfactory to Landlord showing such payment.
Section 6.04. Tenant shall have the right to contest the amount or
validity, in whole or in part, of any Imposition by appropriate proceedings, at
Tenant's own cost and expense (which, if instituted, will be conducted with
reasonable diligence) provided, that Tenant shall nevertheless make all payments
required to be made pursuant to such Imposition until there has been a final
determination relieving Tenant of its obligation to make such payment. As used
herein "final determination" means the decision of the highest court of
competent jurisdiction before which the matter has been brought with all time
for rehearings, rearguments or further appeals having expired. In the event that
an Imposition may be contested prior to the payment of such Imposition, and the
failure to timely pay such Imposition shall not result in a lien or other charge
to the Demised Premises, Tenant may contest such Imposition prior to payment so
long as Tenant has reasonably satisfied Landlord that no lien or charge against
the Demised Premises will result thereby. Tenant shall be
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entitled to any refund of any such Imposition and penalties or interest thereon,
which have been paid by Tenant or paid by Landlord, and for which Landlord has
been fully reimbursed.
(a) If any such Imposition paid by Tenant relates to any land or
buildings other than the Demised Premises, Landlord shall pay to Tenant within
fifteen days of receipt of demand the amount of such Imposition relating to land
or buildings other than the Demised Premises. If, pursuant to any contest
initiated by Tenant, Landlord receives a refund of payment on account of an
Imposition paid by Landlord for which Tenant had no responsibility, Tenant may
deduct from such award, or request refund thereof, Landlord's pro rata share of
the expenses attributable to such refund.
Section 6.05. The certificate, advice, xxxx or statement of the existence
of or of the payment or nonpayment of any Imposition issued or given by the
appropriate officials authorized or designated by law to issue or give the same
or to receive payment of such Imposition shall be prima facie evidence for all
purposes of the existence or amount, or payment or non-payment, of such
Imposition.
Section 6.06. Tenant may, if it shall so desire, endeavor at any time to
obtain a reduction of the assessed valuation of the Demised Premises for the
purpose of reducing taxes thereon and, in such event, at the request of Tenant,
but without expense to Landlord, Landlord will cooperate with Tenant in
attempting to obtain such a reduction. Tenant shall be authorized to collect
any tax refund payable as a result of any proceeding Tenant may institute for
that purpose and any such tax refund shall be the property of Tenant to the
extent to which it is based on payments made by Tenant. Landlord shall be
entitled to a pro rata share of the net proceeds of any such refund to the
extent that it is based upon payments made by Landlord and Tenant shall be
entitled to receive contribution from Landlord of Landlord's pro rata share of
expenses as set forth in Section 6.04.
Section 6.07. Landlord shall not be required to join in any action or
proceeding referred to in Section 6.04 or Section 6.06 hereof unless required by
law or any rule or regulation in order to make such action or proceeding
effective, in which event any such action or proceeding may be taken by Tenant
in the name of, but without expense to, Landlord. If required by law, or
requested by Tenant and so long as Landlord incurs no expense (present or
future), Landlord shall assist Tenant in obtaining the benefit of any available
abatement in Impositions. Tenant hereby agrees to save Landlord harmless from
all costs, expenses, claims, loss or damage (including
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attorneys' fees), by reason of, in connection with, on account of, growing out
of, or resulting from, any such action or proceeding.
Section 6.08. Landlord warrants and represents that it is responsible for
and shall pay, subject to apportionment with Tenant in accordance with the
provisions of Section 6.02 and Section IID 14 of Exhibit C, all Impositions
through the day immediately preceding the Commencement Date.
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ARTICLE 7
Renewal Options
Section 7.01. Tenant shall have five (5) successive options to extend the
Base Term of this Lease for an additional term of five years (each such period
or any combination of such periods are referred to as the "Renewal Term" or
"Renewal Terms"), provided that Tenant, at the time of the exercise of each such
option or thereafter shall not be in default under any of the material terms,
covenants or conditions of this Lease, beyond the time within which Tenant may
cure such default under the provisions of this Lease.
Section 7.02. Each Renewal Term shall be upon the same terms and
conditions as contained in this Lease except (a) the Base Annual Rental to be
paid shall be that amount set forth in Section 7.04, (b) after the exercise of
the fifth renewal option there shall be no further option, privilege or right to
extend the Term of this Lease beyond the expiration of the Renewal Term; (c) the
failure to exercise any one renewal option shall cause all subsequent renewal
options to expire; and (d) in no event shall the Term be forty-nine years or
more (this Lease shall, in such circumstance, expire on the day preceding the
forty-ninth anniversary of the Commencement Late)
Section 7.03. Each option to extend the Term must be exercised by Tenant
giving notice to Landlord in the manner specified in Article 21. The first
option (to extend the Base Term) may only be exercised by giving notice no later
than twenty-four months nor earlier than thirty-six months prior to the
Expiration Date. Thereafter, all subsequent options must be exercised no earlier
than twenty-four months and no later than eighteen months prior to the end of
such Renewal Term. Upon the effective exercise of any option this Lease shall be
deemed to be extended without the execution of any further lease or other
instrument. As soon as practical after Tenant's exercise of this option,
Landlord and Tenant shall seek to negotiate the Base Annual Rent for Renewal
Lease Year One of the respective Renewal Term. In the event that Landlord and
Tenant cannot agree upon such Base Annual Rent by the commencement of the tenth
day prior to the commencement of the eighteenth month prior to the expiration of
the Base Term or Renewal Term, as the case may be, (a) Tenant may withdraw its
exercise of its renewal option by giving notice to Landlord in the same manner
as Tenant exercised such option; and (b) if Tenant does not withdraw its
exercise, the Base Annual Rent shall be determined in accordance with the
procedure set forth in Section 7.04.
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Section 7.04. The Base Annual Rent to be paid during each Renewal Term
shall be determined as follows:
(a) Renewal Lease Year One - The higher of 103.5% of the Base
Annual Rent for the immediately preceding Lease Year (or Renewal Lease Year) or
90% of the "fair market rental value" of the Demised Premises. The determination
of fair market rental value shall be as follows:
(i) Within ten (10) days prior to the commencement of the
eighteenth month prior to the commencement of the Renewal Term
("180th day") Landlord and Tenant shall each give written
notice to the other specifying the name and address of the
person designated to act as an arbitrator on its behalf. The
failure of either party to select an arbitrator shall be
deemed a waiver by that party of its right to choose an
arbitrator and the determination required to be made hereunder
shall be made by the single arbitrator. The two arbitrators so
chosen shall meet in New York City within fifteen (15) days of
the 180th day, and if, within forty-five (45) days of the
180th day, the two arbitrators shall not agree upon a
determination in accordance with the provisions hereof, they
shall together appoint a third arbitrator. In the event they
are unable to agree upon such appointment, the third
arbitrator shall be selected by the parties themselves if they
can agree thereon. If the parties do not so agree, then either
party, on behalf of both and on notice to the other, may
request such appointment by the President of the Real Estate
Board of New York (or any successor organization) in
accordance with its rules then prevailing or if they shall
fail to appoint said third arbitrator within forty-five (45)
days after such request is made, then either party may apply,
on notice to the other, to the presiding Justice of the
Appellate Division, First Department, Supreme Court, New York
County, New York (or any other Court having jurisdiction and
exercising functions similar to those now exercised by said
Court) for the appointment of such third arbitrator.
(ii) Each party shall pay the fees and expenses of the one of the
two original arbitrators
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appointed by or for such party, and the fees and expenses of
the third arbitrator and all other expenses (not including
the attorneys fees, witness fee and similar expenses of the
parties which shall be borne by the party engaging same)
shall be paid equally by Landlord and Tenant.
(iii) The majority of the arbitrators shall determine the fair
market rental value of the Demised Premises and render a
decision as to their determination to both Landlord and Tenant
by the later of sixty (60) days of the appointment of the
first two arbitrators or thirty (30) days from the appointment
of the third arbitrator. In rendering such decision and award,
the arbitrators shall take into account all of the terms and
provisions of this Lease but shall not consider the value of
Tenant's Property or leasehold improvements installed and paid
for by Tenant subsequent to the Commencement Date. The
decision and award of the arbitrators shall be in writing and
be final and conclusive on the parties and counterpart copies
thereof shall be delivered to each of the parties.
(iv) Each of the arbitrators selected as herein provided shall have
at least ten (10) years experience in the (a) leasing of
office space in, and/or (b) appraisal of first class office
buildings in New York County.
(v) If a Renewal Term shall have commenced prior to the
determination by the arbitrators, Tenant shall pay at the rate
of 103.5% of the Base Annual Rent for the immediately
preceding Lease Year, and in the event the arbitrators
determine that the Base Annual Rent for Renewal Lease Year One
is greater than 103.5% of the Base Annual Rent for the
immediately preceding Lease Year, Tenant shall promptly pay
the difference to Landlord upon demand, as Additional Rental.
(b) The Base Annual Rent for each of the four subsequent Renewal
Lease Years of each Renewal Term shall be equal to 103.5% of the Base Annual
Rent for the immediately preceding Renewal Lease Year of such Renewal Term.
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ARTICLE 8
Alterations
Section 8.01. Tenant may, from time to time, at its expense, make such
non-structural alterations ("Alterations") on and to the Building, as Tenant may
reasonably consider necessary for the conduct of its business in the Building,
provided and upon condition that: (a) the outside appearance of the Building
shall not be affected without Landlord's consent which will not be unreasonably
withheld or delayed; (b) the proper functioning of the mechanical, electrical,
sanitary and other service systems of the Building shall not be adversely
affected; (c) no more than seven days after completing Alterations, Tenant shall
submit to Landlord complete "as-built" plans and specifications for the work
done; (d) before proceeding with any Alterations which will cost (exclusive of
the costs of decorating work) more than $250,000 multiplied by the sum of 1 and
the product of 0.035 and the Lease Year number, as estimated by a reputable
contractor designated by Tenant (who, if the Alteration will affect the
Structure or Building Equipment, will be subject to the reasonable approval of
Landlord), Tenant shall obtain and deliver to Landlord either (i) a performance
bond and a labor and materials payment bond (issued by a corporate surety
licensed to do business in New York and reasonably satisfactory to Landlord),
each in an amount equal to 100% of such estimated cost and in form and substance
reasonably satisfactory to Landlord, or (ii) such other security as shall be
reasonably satisfactory to Landlord; (e) Tenant shall complete the Alterations
in accordance with the filed plans; and (f) the Alterations, when completed,
shall not require the issuance of a new Certificate of Occupancy. In instances
wherein Landlord is required to approve Tenant's plans pursuant to this Section
8.01, Landlord shall be deemed to have approved such plans if Landlord does not
comment within ten (10) days of its receipt of such plans. In the event that
Landlord disapproves such plans, Landlord's notice shall set forth in reasonable
detail the reasons for such disapproval.
Section 8.02. Tenant may, from time to time, but in no event after Lease
Year 15 (unless Tenant shall have agreed to restore the altered portion of the
Demised Premises to the condition that existed prior to the Alteration when
Tenant surrenders possession of the Demised Premises, if so required by
Landlord), make structural alterations ("Structural Alterations") in and to the
Demised Premises for the conduct of its business at the Demised Premises, with
the prior written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed so long as (a) the height and
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bulk of the Building shall not be increased and the outside appearance of the
Building shall not be affected; (b) Tenant shall have submitted to Landlord, for
approval, complete plans and specifications for the work to be done (and Tenant
shall not proceed with any work until Tenant has received Landlord's written
consent); (c) the Structural Alterations, when completed, shall not require a
material change in the use set forth in the Certificate of Occupancy (in this
instance Landlord shall not unreasonably withhold its consent to such alteration
unless such Alteration involves a material change in the Certificate of
Occupancy); and (d) Tenant shall pay Landlord, upon demand, the reasonable costs
and expenses incurred by Landlord in reviewing such plans and specifications and
in inspecting such Structural Alterations to assure that they are being
performed in accordance with the plans and specifications and in accordance with
applicable laws, ordinances and administrative requirements (whether federal,
state or local). In addition, Tenant agrees that:
(i) All such work shall be done at Tenant's sole cost and expense.
(ii) No such work shall damage, or impair access to, or the
usefulness of, the Building. Tenant shall keep the Building
and the adjoining sidewalks reasonably free from any
accumulations of rubbish or debris and prevent any
unreasonable accumulation of dirt, dust or annoyance as a
result of the Structural Alterations.
(iii) The Landlord, its architect and their agents and employees
shall have the right, upon giving notice and at reasonable
times, to enter upon the Demised Premises during the course
of construction to inspect and determine whether the work
conforms to the approved plans and specifications and the
terms of this Lease.
(iv) Tenant will cause the Structural Alterations to be promptly
commenced and diligently completed in full compliance with all
applicable laws, building codes, zoning resolutions,
regulations and requirements of all government agencies having
jurisdiction.
(v) Prior to commencing the Structural Alteration if the cost will
exceed $250,000 multiplied by the sum of 1 and the product of
0.035 and the Lease Year number, Tenant shall at Tenant's
election, either:
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(a) deliver to Landlord a payment and performance bond issued by an
insurance company qualified to do business in New York with a Best rating of A
or better insuring that the work to be undertaken by Tenant shall be completed
in accordance with the previously submitted plans and specifications and shall
be fully paid; or
(b) deliver to Landlord a clean, irrevocable letter of credit issued
by a commercial bank in the City of New York, in an amount not less than the
estimated cost (as determined by Landlord) of the Structural Alterations which
Landlord may draw upon to defray the cost of completing such work. Any such
letter of credit shall be replaced (if the work has not yet been completed) at
least ten (10) days prior to its expiration date;
(c) deliver to Landlord an amount equal to the cost (as determined
by Tenant's contractor) of such Structural Alterations to hold as a security
deposit, which fund shall be paid to Landlord to be used by Landlord to defray
the cost of completing the work. The said fund shall be deposited in an interest
bearing account. Interest shall accrue within the account and be paid in
accordance with the provisions hereof governing the payment of the principal; or
(d) deliver to Landlord such other appropriate security as is
reasonably acceptable to Landlord.
Upon certification to Landlord by a licensed architect in the employ of
Tenant (and approved by Landlord) to the effect that all such work has been
completed and paid for in accordance with the approved plans and specifications,
and either i) the delivery to Landlord of lien waivers duly executed by each of
Tenant's contractors and sub-contractors; or ii) the expiration of the statutory
lien period without any liens, being filed; or iii) the expiration of the
statutory period for liens to be filed and the satisfactory bonding of, or
securing by appropriate cash deposit or other appropriate means, any filed
liens, Landlord shall surrender the bonds or letters of credit provided in
paragraphs (a) or (b) above to Tenant for cancellation, or release to Tenant of
all of its rights in and to said cash security funds, as the case may be.
Landlord agrees that it shall review Tenant's plans and specifications
within thirty (30) days of receipt and that Landlord's failure to respond to
Tenant within said thirty (30) days shall be deemed Landlord's approval. In the
event that Landlord disapproves such plans, Landlord's notice shall set forth
in reasonable detail the reasons for such disapproval.
Section 8.03. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Alterations or Structural Alterations and for final approval thereof upon
completion, and shall cause Alterations or Structural Alterations to be
installed, performed, and completed in compliance therewith and
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with all applicable law and requirements of insurance bodies. Landlord shall
cooperate with Tenant in obtaining such permits and certificates so long as
there is no cost or expense to Landlord not paid by Tenant. Alterations shall be
diligently performed in a good and workmanlike manner, using materials, and
equipment at least equal in quality and class to the better of (i) the original
installations of the Building, or (ii) the then standards for the Building
established by Landlord. Landlord agrees that it will not arbitrarily or
capriciously raise the standards for the Building during the Term. Structural
Alterations and Alterations in or to the mechanical, elevator, electrical,
sanitary, heating, ventilating, air-conditioning or other systems in the
Demised Premises shall be performed only by the contractor (s) approved by
Landlord. Landlord agrees not to unreasonably withhold or delay its consent to
Tenant's choice of contractor(s). Alterations or Structural Alterations shall be
performed in such manner as not to impose any additional expense upon Landlord
in the construction, maintenance, operation or repair of the Building. If any
such additional expense shall be incurred by Landlord as a result of Tenant's
performance, Tenant shall pay such additional expense upon demand. Throughout
the performance of Alterations or Structural Alterations, Tenant, at its
expense, shall carry, or cause to be carried, workmen's compensation insurance
in statutory limits and general liability insurance, with completed operation
endorsement, for any occurrence in or about the Demised Premises, under which
Landlord and its agent shall be named as parties insured, in such limits as
Landlord may reasonably require, with insurers reasonably satisfactory to
Landlord. Tenant shall furnish Landlord with reasonably satisfactory evidence
that such insurance is in effect before the commencment of Alterations or
Structural Alterations and, on request, at reasonable intervals thereafter
during the continuance of Alterations or Structural Alterations.
Section 8.04. Tenant, at its expense, and with diligence and dispatch,
shall procure the cancellation or discharge of all notices of violation arising
from or otherwise connected with Alterations or Structural Alterations done for
or supplied to Tenant, or any person claiming through or under Tenant, which
shall be issued by the Department of Buildings of the City of New York or any
other New York City agency or public authority having or asserting jurisdiction.
Tenant shall defend, indemnify and save harmless Landlord from and against any
and all mechanics' and other liens and encumbrances filed in connection with
Alterations or Structural Alterations or any person claiming through or under
Tenant, including, without limitation, security interests in any materials,
fixtures or
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articles so installed in and constituting part of the Premises and against all
costs, expenses and liabilities incurred in connection with any such lien or
encumbrance or any action or proceeding brought thereon. Tenant, at its expense,
shall procure the satisfaction or discharge of record of all such liens and
encumbrances within 45 days after the filing thereof. However, nothing herein
contained shall prevent Tenant from contesting, in good faith and at its own
expense, any notice of violation.
Section 8.05. Landlord's approval or consent to Alterations or Structural
Alterations shall not be deemed Landlord's agreement or acknowledgement that
said Alterations or Structural Alterations comply with applicable laws, rules or
regulations or insurance requirements; nor shall Landlord's approval or consent
be deemed to be a waiver of compliance with applicable laws, rules, regulations,
insurance requirements, or any other term or phrase of this Lease.
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ARTICLE 9
Landlord's and Tenant's Property
Section 9.01. All fixtures, equipment, improvements and appurtenances
attached to or built into the Premises at the commencement of or during the Term
of this Lease, whether or not by or at the expense of Tenant, except as provided
in Section 9.02 shall be and remain a part of the Premises, shall be deemed the
property of Landlord and shall not be removed by Tenant; provided, however,
Tenant shall have the right to remove any such fixture, equipment, improvement
or appurtenance other than an item of Building Equipment so long as Tenant
repairs any damage caused by such removal and restores the Demised Premises to
their condition immediately preceding such installation subject to reasonable
wear and tear. Further, any carpeting or other personal property in the Premises
on the Expiration Date, unless installed and paid for by Tenant, shall be and
shall remain Landlord's property and shall not be removed by Tenant, unless
Landlord requests its removal, in which event Tenant shall remove such property
at Tenant's expense.
Section 9.02. All movable partitions, business and trade fixtures,
machinery and equipment, communications equipment and office equipment, whether
or not attached to or built into the Premises, which are installed in the
Premises by or for the account of Tenant without expense to Landlord and can be
removed without structural damage to the Building, and all furniture,
furnishings and other articles of movable personal property owned by Tenant and
located in the Premises (herein collectively called "Tenant's Property") shall
be and shall remain the property of Tenant and may be removed by Tenant at any
time during the Term of this Lease; provided that if any of Tenant's Property is
removed, Tenant shall repair or pay the cost of repairing any damage to the
Premises resulting from the installation and/or removal thereof. Any equipment
or other property constituting Landlord's Work (as set forth in Exhibit C
hereto), including that for which Landlord has paid by virtue of Tenant's
Allowance (as set forth in Exhibit C hereto) shall not be deemed to have been
installed by or for the account of Tenant without expense to Landlord, shall not
be considered Tenant's Property and shall be deemed the property of Landlord.
Section 9.03. At or before the Expiration Date of this Lease, or within 30
days after an earlier termination date, Tenant, at its expense, shall remove
from the Premises all of Tenant's Property (except such items thereof as
Landlord shall have expressly permitted to remain, which property shall become
the property of Landlord), and Tenant shall repair any damage to the Premises
resulting from any installation and/or removal of Tenant's Property.
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Section 9.04. Any other items of Tenant's Property which shall remain in
the Premises after the Expiration Date, or after a period of 30 days following
an earlier termination date, may, at the option of Landlord, be deemed to have
been abandoned, and in such case, such items may be retained by Landlord, as its
property or disposed of by Landlord, at Tenant's expense, without
accountability, in such manner as Landlord shall determine.
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ARTICLE 10
Tenant's Right of First Offer
Section 10.01. In the event that at any time during the Term hereof
Landlord shall, in good faith, determine to sell the Demised Premises, Landlord
shall first submit the proposed offer to Tenant, containing prices, financing
terms, closing date and any other salient terms. Landlord's proposal shall be in
the form of a contract of sale. Tenant shall have ninety (90) days from receipt
to accept such offer; in the event that Tenant accepts the offer, Tenant shall
have fifteen (15) days to execute a contract of sale with Landlord. If Tenant
fails to accept such offer, Landlord may offer the Demised Premises to such
other prospective purchaser as Landlord may desire upon the terms and for the
amount contained in Landlord's initial offer, provided, however, that if
Landlord does not execute a contract of sale with such other prospective
purchaser upon such terms within nine months and 15 days from the date Landlord
first submitted an offer to Tenant, Landlord may not sell or convey the Demised
Premises without again complying with this Section. In the event that Landlord
receives a subsequent bona fide offer upon different terms and Landlord is
willing to accept such offer, Landlord shall advise Tenant that it has received
such offer and enclose a copy of such offer. Tenant shall thereupon have fifteen
(15) days to accept such offer and execute a contract of sale with Landlord. If
Tenant fails to execute a contract of sale within such fifteen (15) day period
Landlord shall be free to sell to such bona fide offeror.
The provisions of this section shall apply to a transfer of fifty (50%)
percent or more of either (i) the shares of capital stock of a corporation or
(ii) the interest in any limited or general partnership.
Section 10.02. Subject to Section 10.04, Landlord shall not be required to
comply with Section 10.01 where Landlord
(a) is negotiating with any public or quasi public body for sale or
conveyance in lieu of an eminent domain proceeding; or
(b) is negotiating in good faith the delivery of a deed to a
Superior Mortgagee in lieu of foreclosure proceedings; or
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(c) is planning to convey to any person owning, controlling or under
common control with Landlord or to a spouse or blood relative (including adopted
children) of Landlord or trust for the benefit of such spouse or blood relative
(including adopted children); or
(d) is planning or considering the conveyance or conveyances to any
(i) general or limited partnership or partnerships of which Xxxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx will be general partners or (ii) joint venture or joint
ventures of which Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx will be co-venturers, or
(iii) entity or entities or successor which has retained Xxxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx, as managing agent, and which has required that Xxxxx Xxxxxxxx
and Xxxxxxx Xxxxxxxx remain responsible for the construction and delivery of the
Premises pursuant to the terms hereof, so long as any such conveyance occurs
within the first two years subsequent to the commencement of construction of the
work described in Exhibit C; or
(e) any transfer or conveyance between Xxxxx Xxxxxxxx and Xxxxxxx
Xxxxxxxx; or
(f) if the Landlord is a natural person or persons, any conveyance
contemplated because of the death or incompetency of the Landlord (or if the
Landlord be more than an individual, then the death or incompetency of any such
person).
10.03. Any purchaser or assignee acquiring their interest pursuant to
Section 10.01 or 10.02 shall be deemed to have thereafter assumed all of
Landlord's obligations under this Lease.
10.04. Except as permitted by Section 10.02, Landlord shall not assign
this Lease nor convey or sell the Premises prior to the Commencement Date except
to an entity in which Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxxxx have more than a 50%
ownership interest.
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ARTICLE 11
Maintenance and Repairs
Section 11.01. Except as otherwise specifically provided in this Lease,
Landlord shall not be required to furnish any services or facilities or to make
any repairs or alterations in or to the Demised Premises (structural or
non-structural) throughout the Term, Tenant hereby assuming the full and sole
responsibility for the condition, operation, repair, replacement, maintenance
and management of the Demised Premises. All repairs and replacements required to
be made shall be made by Tenant at its sole cost and expense and shall be made
in such manner as to maintain the Demised Premises in substantially the
equivalent condition to its condition after completion of Landlord's Work, as
set forth in Exhibit C (as the same may have been changed pursuant to Article 8)
reasonable wear and tear and unless otherwise provided in Article 13, damage by
fire, casualties, the elements or act of God excepted. Except as otherwise
provided herein, Tenant shall promptly, at its expense, throughout the Term,
take good care of the Premises, the fixtures and appurtenances therein, the
exterior of the Building (including painting), the roof, Building Equipment and
Tenant's Property and Tenant shall be responsible for all repairs, interior and
exterior, Structural or non-Structural, ordinary and extraordinary, foreseen and
unforeseen, in and to the Premises and the Building Equipment, facilities and
systems thereof.
Section 11.02. All work to be performed by Tenant as specified in Section
11.01 shall be performed only by contractor(s) reasonably approved by Landlord
and paid by Tenant. Landlord's consent to Tenant's contractors shall not be
required prior to Tenant's making non-Structural repairs. At the commencement
of the Base Term Landlord shall assign to Tenant all warranties obtained from
the contractors who manufactured or installed Building Equipment.
Section 11.03. Except as otherwise provided herein, Landlord shall
maintain and be responsible for repairs to the structural portions of the
Demised Premises, consisting of the exterior facade (other than those matters
contained in Section 41.01), the beams, columns, slabs, perimeter walls and core
walls (herein referred to as the "Structure" or the "Structural portions of the
Premises, as the context requires) portions of the Demised Premises and Latent
Defects (within the time frame set forth in Article 5) except that Tenant shall
be responsible for repairs or maintenance required if:
(a) Tenant has performed Structural Alterations in which event
Tenant shall assume all liability and
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responsibility for maintenance and repair to those areas where Tenant performed
Structural Alterations, but only to the extent necessitated or caused by such
Structural Alterations; or
(b) Such maintenance or repair is caused by (i) the installation,
use or operation of Tenant's Property in the Demised Premises; (ii) the
performance of Tenant's Optional Work, Structural Alterations or Alterations;
(iii) the moving of Tenant's Property in or out of the Demised Premises; or (iv)
the act, omission, misuse or neglect of Tenant or any of its sub-tenants or its
or their employees, agents, contractors or invitees.
Landlord agrees that all repairs required to be made by Landlord shall, to
the extent practical or feasible, be done expeditiously and with an effort to
cause minimum interference to Tenant's business and with reasonable care to the
persons and property at the Demised Premises provided, however that nothing
contained herein shall require Landlord to incur overtime expense. Landlord
shall maintain the structure in the same manner as comparable buildings in the
area renovated as first class office buildings.
Section 11.04. Except as otherwise expressly provided in this Lease,
Landlord shall have no liability to Tenant, nor shall Tenant's covenants and
obligations under this Lease be reduced or abated in any manner whatsoever, by
reason of any inconvenience, annoyance, interruption or injury to business
arising from Landlord's making any repairs or changes which Landlord is required
or permitted to make by this Lease, or required by law, to make in or to any
portion of the Premises, or in or to the fixtures, equipment or appurtenances of
the Premises and Building Equipment. Landlord represents that in making such
repairs, it shall not materially and substantially reduce the useable square
footage. All repairs shall be made in the manner set forth in Section 11.03.
Section 11.05. If at any time during the Base Term a repair is required to
major components of the air conditioning system or the boiler(s), the cost of
which repair will exceed 20% of the then replacement cost of such major
components of the air conditioning system or the boiler (s), as reasonably
estimated by Tenant, Landlord shall repair or replace such item (and seek to
obtain the best price under the circumstances) and shall receive payment from
Tenant as follows:
(a) Landlord shall certify to Tenant Landlord's cost of repairing or
purchasing and installing such item (the "Replacement Cost") and if requested by
Tenant, Landlord shall exhibit copies of bills or statements relating thereto;
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(b) the Replacement Cost shall be multiplied by a number such that
the product will be an amount equal to the monthly payment needed to amortize a
loan equal to the Replacement Cost payable monthly over a 20 year term in
constant payments of principal and interest at the then best published rate for
secondary financing as published by Manufacturers Hanover Trust Company (or any
successor thereto) (the product to be known as the "Monthly Factor")
(c) the Monthly Factor shall be paid monthly over the months
remaining in the Term commencing at the time the replacement was complete and
shall be due as an Additional Payment hereunder.
Section 11.06. If at any time during the Base Term a repair is required to
the air conditioning system or a component thereof or the boiler(s), the cost of
which will exceed 20% of the the replacement costs of such components of the air
conditioning system or the boiler(s), as reasonably estimated by Tenant and
Tenant is required to do such work because either the repair is an emergency to
which Landlord cannot promptly respond or Landlord has refused for a reasonable
period of time to do the work, then Tenant shall repair or replace such item and
receive payment from Landlord as follows:
(a) Tenant shall certify to Landlord the Replacement Cost;
(b) Landlord shall within 15 days of receipt of such notice
reimburse Tenant for the Replacement Cost;
(c) Thereafter Tenant shall pay Landlord the Monthly Factor as if
Landlord initially incurred the Replacement Cost pursuant to Section 11.05.
Section 11.07. In connection with Landlord's obligation to make repairs or
Alterations as set forth in this Lease Tenant shall permit Landlord to erect,
use and maintain pipes and conduits in and through the Premises; to store
materials at the Premises while such repairs or Alterations are being made with
Tenant's consent which will not be unreasonably withheld or delayed; and to
enter upon the Premises with Landlord's agents, employees and contractors.
Landlord shall at all times endeavor to minimize the dislocation or disruption
of Tenant's business.
Section 11.08. If at any time during a Renewal Term a repair is required
for Building Equipment or components thereof the cost of which will exceed 20%
of the replacement cost of such component item of Building Equipment as
reasonably
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estimated by Tenant, then Landlord shall at its expense make such repair or
replacement. All repairs shall be made as expeditiously as practical (without
overtime) and with materials of like or better quality as those required for use
in Landlord's Work.
Section 11.09. Notwithstanding anything herein to the contrary, wherever
in Exhibit C Landlord has agreed to be responsible for failures resulting from
the use of existing materials, Landlord shall be responsible for repairs
thereto, in accordance with Exhibit C subject however to Tenant's obligation to
maintain such component and to maintain the Building and Building Equipment of
which such component is a part.
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ARTICLE 12
Insurance
Section 12.01(a). Tenant, at its expense, shall keep the Demised Premises
(including the Building and Building Equipment) on the Demised Premises insured,
during the Term, against all risks of physical loss, loss or damage by fire,
with such extended coverage as shall from time to time be customary for premises
similarly situated (as to both use and area) in the Borough of Manhattan, City
of New York, with replacement cost endorsement, in amounts sufficient to prevent
Landlord or Tenant from being or becoming a co-insurer within the terms of the
policy or policies in question and in no event less than ninety per cent (90%)
of the replacement value of the Building and Building Equipment exclusive of the
cost of foundations, excavations, and footings below the lowest basement floor,
without any deduction being made for depreciation and with (i) an inflation
rider and (ii) an agreed amount endorsement. Such replacement value shall be
determined from time to time, but no more frequently than once in any
twenty-four consecutive calendar months, at the request of Landlord, by an
appraiser, architect or contractor who shall be mutually and reasonably
acceptable to Landlord and Tenant (the cost of which shall be equally borne by
Landlord and Tenant). No omission on the part of Landlord to request any such
determination shall relieve Tenant of its obligations hereunder.
(b) Prior to the Commencement Date, Landlord at Landlord's expense,
shall keep the Demised Premises insured in the same manner and to the same
extent as is required of and by Tenant after the Commencement Date; with regard
to comprehensive general public liability insurance Landlord shall name Tenant
as an additional insured.
Section 12.02. Tenant, at its expense, shall maintain during the Term for
the mutual benefit of Landlord and Tenant:
(a) comprehensive, general public liability insurance against claims
for bodily injury, death or property damage, occurring upon, in or about the
Demised Premises, or the elevators or any escalators, and on, in or about the
adjoining sidewalks and passageways (including, without limitation, personal
injury, death or property damage, resulting directly or indirectly from any
change, alteration, improvement or repair thereof) with broad form general
liability endorsement for at least $20,000,000 for any one occurrence and
$500,000 for damage to property and in such greater or lesser limits as may be
determined pursuant to Section 12.10 hereof;
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(b) boiler and pressure vessel insurance, including pressure pipes,
if there be any such vessel or pipes in the Demised Premises, in an amount not
less than $250,000 per boiler;
(c) during the course of any alterations or construction by Tenant
at the Premises and until completion thereof, Builder's Risk insurance on an
"all risk" basis (including collapse) on a completed value (non-reporting) form
for full replacement value covering the interest of Landlord and Tenant (and
their respective contractors and subcontractors), the Superior Mortgagee, and
all work incorporated in the Demised Premises and all materials and equipment
therein, provided, however, Tenant may self-insure that amount of loss
determined by multiplying $250,000 by the sum of 1 and the product of 0.035 and
the Lease Year number;
(d) Worker's Compensation and Employer's Liability Insurance, as
required by law for Tenant's agents, employees, licensees and contractors;
(e) Sprinkler and water damage insurance;
(f) rental value insurance against loss of rental or other income
derived from the use of the Demised Premises due to the risks referred to in
Section 12.01 hereof (including those embraced by "extended coverage") in an
amount sufficient to prevent Tenant from becoming a co-insurer within the terms
of the policy or policies in question, but in no event in an amount or amounts
less than the aggregate amount of the Base Annual Rent and the Impositions
hereunder for a period of three years; and Tenant hereby assigns to Landlord,
or to a Trustee under Section 12.08 hereof if there be one, the proceeds of such
insurance so that in the event the Demised Premises or part thereof shall be
destroyed or seriously damaged such proceeds shall be used for the payment of
such Base Annual Rent and Impositions hereunder until the restoration of such
improvements. Notwithstanding anything herein to the contrary, Landlord shall
reimburse Tenant, within 15 days of Tenant's presentation of a xxxx, for the
cost of such insurance for so long as Landlord requires Tenant to carry such
insurance under Tenant's global policy; and
(g) so long as Landlord agrees to bear one-half the cost of the
related premiums, (i) such other insurance in such amounts as may from time to
time be reasonably required by either: (A) Landlord against other insurable
hazards which at the time are customarily insured against in the case of
premises similarly situated in the Borough of Manhattan, City of New York, due
regard being, or to be, given to the height and type of Building, its
construction, use and occupancy, or
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(B) any Superior Mortgagee, and (ii) such additional amounts of coverage in
excess of that which Tenant is required to provide pursuant to this Article 12,
which amounts are required by either (A) Landlord, or (B) any Superior
Mortgagee.
Section 12.03.
A. All insurance provided for in this Article shall be effected
under valid and enforceable policies, issued by insurers with "Best" ratings of
not less than A, licensed to do business in New York and authorized to issue
such policies. Upon the execution of this Lease, and thereafter promptly
following Landlord's request therefor, originals of the policies (or,
certificates of the insurers) bearing notations evidencing the payment of
premiums or accompanied by other evidence reasonably satisfactory to Landlord or
such payment, shall be delivered by Tenant to Landlord.
B. Nothing in this Article shall prevent Tenant from taking out
insurance of the kind and in the amounts provided for under this Article under a
blanket insurance policy or policies covering other properties as well as the
Demised Premises, provided, however, that any such policy or policies of blanket
insurance (i) shall specify therein, or Tenant shall furnish Landlord at
Tenant's option, with either an endorsement evidencing the insurance coverage
and the named assureds or a written statement from the insurers under such
policy or policies specifying, the amount of the total insurance allocated to
the Demised Premises, which amounts shall not be less than the amounts required
by Sections 12.01 and 12.02 hereof and, (ii) such amounts so specified shall be
sufficient to prevent any one of the assureds from becoming a co-insurer within
the terms of the applicable policy or policies, and provided further, however,
that any such policy or policies of blanket insurance shall, as to the Demised
Premises, otherwise comply as to endorsements and coverage with the provisions
of this Article.
Section 12.04. [This section intentionally omitted.]
Section 12.05. Tenant shall not violate or permit the violation of any
condition imposed by any insurance policy then issued in respect of the Demised
Premises and/or the property therein and shall not do, or permit anything to be
done, or keep or permit anything to be kept in the Demised Premises which would
subject Landlord to any liability or responsibility for personal injury or death
or property damage, or which would increase any insurance rate in respect of the
Demised Premises or the property therein over the rate which would otherwise
then be in effect or which would result in insurance companies of good standing
refusing to insure the Demised Premises or the
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property therein in amounts reasonably satisfactory to Landlord, or which would
result in the cancellation of or the assertion of any defense by the insurer in
whole or in part to claims under any policy of insurance in respect of the
Demised Premises or the personal property, fixtures and equipment located
therein or thereon. Tenant shall have the right, at its sole cost and expense to
contest by appropriate proceeding any purported violation of an insurance
provision, provided that during such contention or proceeding all insurance
required to be obtained by Tenant pursuant to this Lease is in full force and
effect and such contention or proceeding does not invalidate any insurance
carried by Landlord. Landlord agrees, if requested by Tenant and so long as it
is without cost or expense, to cooperate with Tenant in any such proceeding;
provided, however, if Landlord would be required to incur any cost or expense in
connection with such cooperation, Landlord agrees to do so on the express
condition that Tenant will pay Landlord's costs therefor.
Section 12.06. Tenant and Landlord shall secure an appropriate clause in,
or an endorsement upon, each insurance policy obtained by them covering or
applicable to the Demised Premises or the personal property, fixtures and
equipment located therein or thereon, pursuant to which the insurance company
waives subrogation or permits the insured, prior to any loss, to agree with a
third party to waive any claim it might have against said third party without
invalidating the coverage under the insurance policy. The waiver of subrogation
or permission for waiver of any claim shall extend to Tenant and Landlord or
their agents or employees. Tenant hereby releases Landlord to the extent of
insurance required to be provided and provided by Tenant pursuant to this
Article (and, to the extent that Landlord carries insurance, Landlord releases
Tenant) and its agents and employees in respect of any claim (including a claim
for negligence) which it might otherwise have against landlord or its agents (or
Tenant and its agents) or employees for loss, damage or destruction with respect
to Tenant's Property (or Landlord's property) by fire or other casualty
including rental value or business interest, as the case may be, occurring
during the Term as herein provided.
Section 12.07. Any policies of insurance of the character described in
Section 12.01 hereof shall expressly provide that any losses thereunder shall be
adjusted with and approved by landlord. All insurance provided in accordance
with this Article 12 shall be carried in the name of Landlord and Tenant with
standard mortgagee endorsement covering the interest of any Superior Mortgagee
as such interest may appear and any amounts received pursuant thereto shall be
paid to Landlord and, if requested by Landlord, to the holder of any Superior
Mortgage covering the Demised Premises, for application to the cost of
restoration and repair of the Building, except in the event of termination of
the Lease pursuant to Section 33, in which case such amounts shall be paid to
Landlord.
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Section 12.08. In the case of such damage or destruction resulting in
insurance proceeds of more than $50,000, such insurance proceeds shall be
deposited with a Trustee of Landlord's choosing and shall be paid by the Trustee
in the manner set forth in Article 13. In the event that the damage or
destruction results in insurance proceeds of less than $50,000, Landlord shall
receive and hold such amounts (less the reasonable costs of collecting and
administering such amounts) and reimburse itself for its actual expenditures in
making such repairs in accordance with the provisions of Article 13. In the
event, after the making of all repairs required to be made pursuant to Article
13, there are excess funds remaining with Landlord or the Trustee, such amounts
shall be remitted to Tenant.
Section 12.09. At the expiration of the Term, all policies which are
transferable shall be at Landlord's option, transferred to Landlord free of all
right, title and interest of Tenant and those claiming under Tenant, except that
Tenant shall retain its interest in such policies as they relate to all events
occurring prior to the expiration of the Term, as to which Tenant is entitled to
the protection afforded or proceeds payable under this Lease, in which event
Landlord shall pay to Tenant an amount equal to the unearned premiums
apportioned as of such expiration date. In the event of Landlord's eviction of
Tenant for default, Landlord shall credit against all amounts due from Tenant an
amount equal to the unearned premiums apportioned to the date of eviction on all
policies assigned and acceptable to Landlord.
Section 12.10. Landlord may from time to time, but not more frequently
than once every year, require that the amount of public liability insurance to
be maintained by Tenant under Section 12.02 be increased so that the amount
thereof adequately protects Landlord's interest. If Tenant shall claim that
Landlord's requirement is excessive, the resolution of the dispute shall be
determined by arbitration as provided in Article 24. Tenant shall thereafter
carry the insurance as determined by such arbitration to be required, but in no
event shall the amount thereof be less than the amount specified in Section
12.02.
12.11. Tenant covenants and agrees that it will, at all times during the
Term of this Lease, subject to the provisions of Section 18.01, indemnify,
protect, defend and save Landlord harmless from and against any and all claims,
costs, charges or liabilities (including attorneys' fees) arising from damage or
injury, actual or claimed, of whatsoever kind or character, to property or
persons, occurring in or about the Demised Premises, or the streets, sidewalks,
passageways and alleys adjacent thereto to the extent and amount Tenant was
required to insure against such casualty or event, but excluding from
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this limitation, Tenant's negligence, and in case any action or proceeding shall
be brought against Landlord by reason of such claim, Tenant, upon notice from
Landlord shall resist or defend such action or proceeding at Tenant's expense,
whether or not Tenant has actually obtained insurance coverage for such claims
as required herein.
Section 12.12. Except as set forth in Section 12.01(b) nothing contained
in this Article 12 shall be deemed to require Landlord to carry any insurance.
Section 12.13. All insurance policies delivered pursuant to this Article
shall contain an agreement by the insurer that such policy shall not be
cancelled except on at least thirty (30) days prior notice to Landlord. As to
any loss sustained by Tenant (or Landlord) for which Tenant (or Landlord) is
required to obtain insurance pursuant to this Lease, Tenant (or Landlord) waives
any and all claims and rights for damages against Landlord (or Tenant).
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ARTICLE 13
Damage or Destruction
Section 13.01. Except as is provided in Sections 13.04 and 13.06 hereof,
in case of damage to or destruction of the Building or Building Equipment or any
part thereof by fire or other casualty, Tenant shall promptly give written
notice thereof to Landlord, and Landlord shall, at Landlord's expense, and
whether or not insurance proceeds, if any, shall be sufficient for the purpose,
restore, repair, replace, rebuild or alter the same to restore it as nearly a
possible to its condition or character immediately prior to damage or
destruction. Such restorations, repairs, replacements, rebuilding or alterations
shall be commenced within ninety days from the date of the occurrence of such
damage or destruction, which time shall be extended, if necessary, by time
commensurate with any delays due to adjustment of related insurance claims,
preparation of plans and specifications, and applications for zoning variances
and rezoning, and shall thereafter be prosecuted with reasonable diligence,
unavoidable delays excepted and in accordance with applicable laws, ordinances
and administrative requirements (whether federal, state or local).
Section 13.02. Prior to commencing any work Landlord shall deliver to
Tenant an estimate of the cost of the Restoration certified by an officer of
Landlord and an architect or engineer (reasonably acceptable to Tenant) retained
by Landlord to supervise the construction work.
Section 13.03. A. All insurance money paid on account of such damage or
destruction to the Trustee acting hereunder pursuant to the provision of Section
12.08 (or to the Landlord if the insurance proceeds are less than $50,000)
hereof less the reasonable cost, if any, incurred in connection with adjustment
of the loss and the collection thereof shall be applied by such Trustee (or
Landlord) to the payment of the cost of the aforesaid restoration, repairs,
replacement, rebuilding or alterations, including the cost of temporary repairs
or for the protection of property pending the completion of permanent
restoration, (all of which temporary repairs, protection of property and
permanent restorations, replacements, rebuilding or alterations are hereinafter
collectively referred to as the "Restoration" and the act of doing such
Restoration is hereinafter described as "Restore" and "Restoring" as the context
requires), and shall be paid out to, or at the direction of Landlord from time
to time as the Restoration progresses, in installments equal to the cost of work
completed and materials furnished, and shall be received by Landlord for the
purposes of paying the cost of such Restoration. At the time of each takedown of
funds,
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Landlord shall prepare and make available to Tenant (if requested) a verified
certificate signed by Landlord or if Landlord is a partnership or corporation,
by a general partner or a senior executive officer of Landlord as the case may
be and a certificate signed by the architect or engineer in charge of such
construction, dated not more than thirty days following such request, setting
forth the following:
(1) that the sum then requested represents the amount that
either has been paid by Landlord, or is then due to contractors,
subcontractors, materialmen, engineers, architects or other persons
who have rendered services or furnished materials for the
Restoration therein specified, and giving a brief description of
such services and materials and the several amounts so paid or due
to each of said persons in respect thereof, and stating that no part
of such expenditures has been or is being made the basis, in any
previous or then pending request, for the withdrawal of insurance
money or has been paid out of the proceeds of insurance received by
Landlord;
(2) that the cost, as estimated by the persons signing such
certificate, of the Restoration required to be done subsequent to
the date of such certificate in order to complete the same, does not
exceed the aggregate of the insurance money remaining in the hands
of Trustee or (Landlord) after payment of the sum requested in such
certificate.
Upon compliance with the foregoing provisions of this Section, such Trustee (or
Landlord) shall, out of such insurance money, pay or cause to be paid to
Landlord or the persons named in such certificate (pursuant to subclause (1) of
this Section) the respective amounts stated therein to have been paid by
Landlord or to be due to them, as the case may be.
B. If the net insurance proceeds as aforesaid at the time held by such
Trustee (or Landlord) shall be insufficient to pay the entire cost of such
Restoration, landlord shall pay the deficiency forthwith.
C. Upon receipt by such Trustee (or Landlord) of satisfactory evidence, of
the character required by clauses (1) and (2) of this Section, that the
Restoration has been completed and paid for in full and that there are no liens
of the character referred to therein, any balance of the insurance money at the
time held by such Trustee or Landlord shall be paid to Tenant, unless Tenant is
in default hereunder for failure to pay Rent, in which case such insurance
proceeds shall be applied against the amount owed to Landlord at such time.
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D. Anything herein contained to the contrary notwithstanding, in the event
of the termination of this Lease pursuant to Article 33, any and all insurance
proceeds then on hand with the Trustee shall be paid over to landlord, and
Tenant shall have no right, title, interest or claim thereto or therein
whatsoever, and any amounts held by Landlord shall be retained by Landlord.
Section 13.04. Other than as set forth in Section 13.06 in case of damage
or destruction to the Demised Premises which shall amount to substantially total
destruction of the Building and Building Equipment (i.e. if the casualty
destroys 75% or more of the useable area Demised Premises) and to be of such a
character that in the reasonable judgment of Landlord requires demolition of the
remainder of the Building or shall require more than twelve (12) months for
Restoration, Landlord shall have ninety (90) days from the casualty to notify
Tenant of Landlord's election either to Restore, or not to Restore the Premises.
If Landlord elects so to Restore, Landlord shall deliver to Tenant its estimate
of the approximate completion date of such Restoration. Landlord's failure to
send notice of its election either to Restore or not to Restore shall be deemed
Landlord's election not to Restore. If Landlord elects not to Restore or is
deemed to have elected not to Restore this Lease shall terminate as of the
giving (or deemed giving) of such notice provided, however, Tenant, within
fifteen (15) days of the giving of such notice (or deemed giving of such notice)
from Landlord may notify Landlord that Tenant elects to have landlord Restore.
In such event, Landlord shall commence Restoration. If Landlord elects to
Restore Landlord must Substantially Complete such Restoration within two (2)
months following Landlord's estimated date of completion of Restoration. In the
event Landlord fails to Substantially Complete the Restoration of the Demised
Premises by the expiration of such period (plus an additional three (3) months
if the delay is caused by Force Majeure), Tenant may thereafter upon thirty
(30) days notice elect to cancel this Lease, but if the Demised Premises are
Substantially Complete at the expiration of such thirty (30) day period, this
Lease shall continue until the end of the Term. If this Lease shall be cancelled
pursuant to this Article, it shall be terminated with the same force and effect
as if the date of such termination was set forth as the natural expiration of
this Lease.
Should Landlord elect to Restore landlord shall Restore substantially in
accordance with the procedures and specifications set forth in Exhibit C and
monies shall be released to Landlord in the manner set forth in Section 13.03.
Substantial Completion shall be determined subtantially in the manner set forth
in Article 5. In the event Landlord elects not to Restore Landlord agrees that
it shall not for twelve months from the casualty relet the Demised Premises.
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Section 13.05. Except as set forth in Sections 13.04, 13.06 and 13.10, no
destruction of or damage to the Demised Premises or any part thereof by fire or
any other casualty shall permit Tenant to surrender this Lease or shall relieve
Tenant from its liability to pay the Base Annual Rent or Additional Rent or from
any of its other obligations under this Lease (except that the proceeds of Rent
insurance shall be held and applied as provided in Section 12.02 hereof), and
Tenant waives any rights now or hereafter conferred upon it by statute or
otherwise or quit or surrender this Lease or the Demised Premises or any part
thereof, or to any suspension, diminution, abatement or reduction of Rent on
account of any such destruction or damage.
Section 13.06. Anything herein to the contrary notwithstanding if, during
the last three years of the Base Term or of any Renewal Term, the Demised
Premises shall be so damaged by fire or otherwise that the cost of Restoration
of the Building and Building Equipment thereof shall exceed the greater of (i)
the current year's Base Annual Rent, or (ii) 60% of the then replacement value
of the Building and Building Equipment (any dispute with respect the extent of
such damage to be arbitrated pursuant to Article 29), then
(a) Landlord may elect either to Restore the Demised Premises or to
cancel this Lease on at least thirty (30) days' notice, given within sixty
(60) days after such damage. If Landlord elects so to cancel this Lease,
this Lease and any and all renewal rights hereunder shall come to an end
on the date specified in such notice and Landlord further agrees that it
shall not for six months from the casualty relet the Premises, provided
however, Tenant may within fifteen (15) days of such notice of
cancellation from Landlord notify Landlord that it elects to have Landlord
Restore the Premises, in which event Landlord shall commence Restoration;
and
(b) Tenant may elect to cancel this Lease on at least thirty (30)
days' notice, given within sixty (60) days after such damage, and this
Lease shall come to an end on the date specified in such notice; provided,
however, that simultaneously with the giving of its notice, Tenant shall
deliver to Landlord an assignment, duly executed and acknowledged by
Tenant, transferring to Landlord all of the rights and claims of Tenant
in, to and under all insurance proceeds covering such damage or
destruction and in and to all insurance policies carried by Tenant
pursuant to this Lease.
In the event of any such cancellation, Landlord shall not be obligated to
perform any Restoration, and this Lease and the Term hereof and all renewal
rights shall terminate as of the effective date of such cancellation as
specified in the notice,
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all such insurance proceeds shall be the property of Landlord and Tenant shall
not have any rights or claims with respect thereto. No such cancellation and
termination shall release Tenant from any obligation hereunder for Rent, accrued
or payable for or during any period prior to the effective date of such
cancellation, and any prepaid Rent beyond the effective date of such
cancellation shall be adjusted. In case of any arbitration of a dispute under
this Section whether any cost of replacement shall exceed sixty per cent (60%)
of the then replacement value of the Building and Building Equipment, the time
to give any notice under this Section shall be extended to a date which shall be
thirty (30) days after the determination of such arbitration.
If Landlord elects to Restore, as provided in paragraph (a) above,
Landlord shall give Tenant Landlord's good faith estimate of the time needed to
Restore at the time the Landlord elects to rebuild. If such estimate indicates
that such Restoration will exceed ninety (90) days, Tenant may upon ten (10)
days notice elect to cancel this Lease. In the event Landlord fails to
Substantially Complete the Restoration of the Demised Premises by the later of
ten (10) days following such estimate or one hundred (100) days from Landlord's
delivery of the aforementioned Restoration estimate (130 days if the delay is
caused by force majeure), Tenant may thereafter upon thirty (30) days' notice
elect to cancel this Lease and if the Demised Premises are not Substantially
Complete at the expiration of such thirty (30) day period, this Lease shall be
cancelled with the same force and effect as if the date of such expiration was
set forth as the natural expiration of the Lease.
Section 13.07. In any instance of Restoration utilizing insurance
proceeds, the Superior Mortgagee may impose such terms and conditions upon the
use of the insurance proceeds, including escrows, hold-backs and the like as the
Superior Mortgagee shall determine appropriate in the circumstance, and Landlord
and Tenant shall agree to and abide by such terms and conditions but may not
apply the proceeds to reduce obligations thereunder (except if Tenant has
defaulted in a material obligation hereunder and has not cured such default
within the time for curing and such default)
Section 13.08. The provisions of this Article shall be deemed an express
agreement governing any case of damage to or
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destruction of the Premises by fire or other casualty, and Section 227 of the
Real Property Law of the State of New York, providing for such a contingency in
the absence of an express agreement, and any other law of like import, now or
hereafter in force, shall have no application in such case.
Section 13.09. Except as specifically provided in Sections 13.04 and
13.06, in all instances wherein Landlord elects to Restore the Demised Premises,
Landlord shall, as promptly as practical, deliver to Tenant Landlord's good
faith estimate of the time within which Landlord reasonably expects to
Substantially Complete the Restoration. In the event that with respect to
Restoration required pursuant to Section 13.04, such estimate indicates more
than 12 months is needed for Restoration then Tenant may within 20 days of such
notice elect to cancel this Lease.
Section 13.10. In the event of the occurrence of any casualty, the
prorated share of Base Annual Rent payable hereunder for the portion of the
Premises not usable or occupied by Tenant as a result of such casualty shall
xxxxx from the date of the casualty until Landlord shall have Substantially
Complete the applicable Restoration. Any insurance proceeds available from
insurance carried pursuant to Section 12.02(f) shall be remitted to Landlord.
Section 13.11. In the event that any casualty or loss occurs for which
insurance coverage is required hereunder and such insurance coverage is not
available because Tenant failed to obtain such insurance, or if obtained allowed
to lapse or be cancelled because of Tenant's failure or negligence, Tenant shall
be responsible for and shall pay Landlord the amount that would have been
available had such insurance been in effect.
Section 13.12. In the event Tenant elects to cancel this Lease pursuant to
any Section of this Article. Landlord shall retain all insurance proceeds
relating to the Demised Premises. Provided and to the extent that Tenant is not
in default in the payment of Rent hereunder, insurance proceeds relating to the
Tenant's leasehold interest and Tenant's Property shall be paid to Tenant.
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ARTICLE 14
Eminent Domain
Section 14.01. If all or substantially all the whole of the Demised
Premises or complete access thereto shall be taken by condemnation or in any
other manner for any public or quasi-public use or purpose, this Lease and Term
and estate hereby granted shall terminate as of the date of vesting of title on
such taking (herein called "Date of the Taking"), and the Base Annual Rent and
Additional Rent shall be prorated and adjusted as of such date. For purposes of
this article, (a) "substantially" shall mean 80% or more of the rentable space
in the Building; (b) the Building shall be deemed to have 320,000 square feet of
rentable space (but this shall not be deemed a representation by Landlord).
Section 14.02. In the event of a taking described in Section 14.01 the
compensation or award shall be divided and distributed as follows: (a) first
monies shall be given to the Superior Mortgagee first in priority in an amount
sufficient to repay such Superior Mortgage including all principal sums due
thereunder and all interest accrued thereon (but limited to interest related to
one month's payment); (b) thereafter the Tenant shall receive that amount of the
residual (remaining after subtracting the amount in Subsection (a)), determined
by multiplying the balance of the award (after making the payment described
in Subsection (a) above) by a fraction of which the numerator is the value of
Tenant's leasehold interest including the value of Tenant's renewal options but
excluding the value of Tenant's purchase option and the denominator is the sum
of the value of Tenant's leasehold interest including the value of Tenant's
renewal options and the value of Landlord's interest in the Demised Premises
excluding therefrom the portion of the Superior Mortgage paid pursuant to
Subsection (a). Landlord and Tenant shall first try to agree upon value. If no
agreement is reached within ten (10) days, either party may demand arbitration;
(c) the balance shall be given to Landlord. The application for the compensation
or award shall be made by Landlord and Tenant shall cooperate, without cost or
charge, with Landlord in making application for such award, including execution
of such documents as may be required by Landlord or its counsel. The amounts
payable hereunder represent Tenant's sole right to receive or claim compensation
for a taking as described in Section 14.01.
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Section 14.03. If the temporary use or occupancy of all or any part of the
Premises shall be condemned or taken for any public or quasi-public use or
purpose during the Term, this Lease and the Term shall be and remain unaffected
by such condemnation or taking and Tenant shall continue to be responsible for
all of its obligations hereunder (except to the extent prevented from so doing
by reason of such condemnation or taking) and it shall continue to pay the Rent
in full. In the event of any such condemnation or taking, Tenant shall be
entitled to appear, claim, prove and receive the entire award unless the period
of temporary use or occupancy extends beyond the Expiration Date in which event
Landlord shall be entitled to appear, claim, prove and receive the entire award
as represents the cost of Restoration of the Premises and the balance of any
such award shall be apportioned between Landlord and Tenant as of the Expiration
Date. At the termination of such occupancy prior to the Expiration Date, Tenant,
at its own expense, will restore the Premises as nearly as possible to their
condition prior to the condemnation or taking. Notwithstanding the foregoing,
any lump sum award received by Tenant as compensation for temporary use and
occupancy of the Premises shall be delivered to and held by Landlord in trust
for the payment of Rent.
Section 14.04. In the event of a taking of less than 80% of the Building
this Lease shall continue in full force and effect except that the Base Annual
Rent to be paid shall be reduced to that amount determined by multiplying the
then applicable Base Annual Rent by a fraction, the numerator of which is the
percentage of the Building taken in the condemnation proceeding and the
denominator is 100. The Base Annual Rent set forth above shall be effective and
shall be prorated from the bate that the condemning authority taxes possession.
Section 14.05. In the event of any taking of less than the whole of the
Demised Premises which does not result in termination of this Lease, Landlord,
at its expense, and whether or not any award or awards shall be sufficient for
the purpose, shall proceed with reasonable diligence to repair the remaining
parts of the Building (other than those parts which are Tenant's Property) to
substantially their former condition to the extent that the same may be feasible
and so as to, as nearly as practicable under the circumstances, constitute a
complete and tenantable Building, and in accordance with the procedures
contained in Exhibit C. Landlord shall perform all repairs required to restore
Tenant's leasehold improvements so long as the cost thereof shall not exceed
$500,000. If the cost of such repairs exceed $500,000 Tenant shall cause such
work to be done at Tenant's sole expense to the extent the work
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exceeds $500,000, and in accordance with the provisions of Article 8. The
parties will agree to an appropriate transition in the event an excess of
$500,000 is expended by Landlord in connection with the foregoing.
Landlord shall be promptly reimbursed by Tenant for the cost of all Tenant
Optional Work done by Landlord. Landlord and Tenant shall pro rata share any
compensation or award made for such work based upon the relative expenditures
for such repairs. Landlord shall endeavor to obtain the most favorable prices
available under the circumstances for such work.
Section 14.06. The terms "condemnation" and "acquisition" as used herein
shall include any agreement in lieu of or in anticipation of the exercise of the
power of eminent domain between Landlord and any governmental authority
authorized to exercise the power of eminent domain. In the event that there
shall be any dispute between Landlord and Tenant arising out of provisions of
this Article, such dispute shall be settled by arbitration pursuant to Article
28.
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ARTICLE 15
Compliance with Laws
Section 15.01. Tenant shall give prompt notice to Landlord of any notice
it receives of the violation of any law, rule, regulation or requirement of any
public authority with respect to the Premises or the use or occupation thereof.
Except as otherwise provided herein, Tenant shall, at Tenant's expense, comply
with all laws rules, regulations and requirements of all public authorities
which shall, in respect of the Premises or the use and occupation thereof, or
the abatement of any nuisance in, on or about the Premises, impose any
violation, order or duty on Landlord or Tenant, arising from (a) the use of the
Premises, (b) the manner of conduct of Tenant's business or operation of its
installations, equipment or other property therein, (c) any cause or condition
created by or at the instance of Tenant, (d) the use or operation of any
Building Equipment, or (e) breach of any of Tenant's obligations hereunder; and
Tenant shall pay all the costs, expenses, fines, penalties and damages,
including reasonable attorneys fees, which may be imposed upon Landlord by
reason of or arising out of Tenant's failure to fully and promptly comply with
and observe the provisions of this Section. However, Tenant need not comply with
any such law, rule, regulation or requirement of any public authority so long as
Tenant shall be contesting the validity thereof, or the applicability thereof to
the Premises, in accordance with Section 15.02. Landlord, at its expense, shall
comply with all other such laws, rules, regulations and requirements of public
authorities as shall affect the Premises, but may similarly defer compliance so
long as Landlord shall be contesting the validity or applicability thereof.
15.02. Tenant, at its expense, after notice to Landlord, may contest, by
appropriate proceedings prosecuted diligently and in good faith, the validity,
or applicability to the Premises, of any law, rule, regulation or requirement of
any public authority, provided that (a) Landlord shall not be subject to
criminal penalty or to prosecution for a crime, nor shall the Premises or any
part thereof be subject to being condemned or vacated, by reason of
non-compliance or otherwise by reason of such contest; and (b) if the cost of
such compliance exceeds $250,000 multiplied by 1 and the product of 0.035 and
the Lease Year number before the commencement of such contest, Tenant shall
furnish to Landlord either (i) the bond of a surety company reasonably
satisfactory to Landlord, which bond shall be, as to its provisions and form,
satisfactory to Landlord, and shall be in an amount at least equal to 100% of
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the cost of such compliance (as estimated by a reputable contractor designated
by Tenant) and shall indemnify Landlord against the cost thereof and against all
liability for damages, interest, penalties and expenses (including reasonable
attorneys' fees and expenses), resulting from or incurred in connection with
such contest or non-compliance, or (ii) other security in place of such bond
reasonably satisfactory to Landlord; (c) such non-compliance or contest shall
not constitute or result in any violation of any Superior Mortgage, or if any
such Superior Mortgage shall permit such non-compliance or contest on condition
of the taking of action or furnishing of security by Landlord, such action shall
be taken and such security shall be furnished at the expense of Tenant; and (d)
Tenant shall keep Landlord advised as to the status of such proceedings. Without
limiting the application of the above, Landlord shall be deemed subject to
prosecution for a crime if Landlord, or its managing agent, or any officer,
director, partner, shareholder or employee of Landlord or its managing agent, as
an individual, is charged with a crime of any kind or degree whatever, whether
by service of a summons or otherwise, unless such charge is withdrawn before
Landlord or its managing agent, or such officer, director, partner, shareholder
or employee of Landlord (as the case may be) is required to plead or answer
thereto.
Section 15.03. [This Section purposely omitted.]
Section 15.04. Except as otherwise provided herein, Tenant, at its
expense, shall promptly comply with all orders, rules and regulations of the
National Board of Fire Underwriters, the New York Board of Fire Underwriters or
any other body or bodies exercising similar functions, foreseen or unforeseen,
ordinary as well as extraordinary, which may be applicable to the Demised
Premises subsequent to the Commencement Date or to the use or manner of use of
the Demised Premises provided no such orders, rules, regulations or requirement
shall necessitate Structural changes or improvements or interfere with the use
and enjoyment of the Demised Premises, and whether or not such compliance is
required by reason of any condition, event or circumstance existing prior to or
after the Commencement Date, unless such condition, event or circumstances was
caused by Landlord's negligence.
Section 15.05. Landlord represents that on the Commencement Date the
Demised Premises will be in compliance with all applicable laws, rules or
regulations excepting those matters which then remain subject to Landlord's
completion of Tenant's Punch List or the completion of the work remaining
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unfinished because Tenant took occupancy prior to Landlord's advice to Tenant
that the Premises were Substantially Complete. Landlord further represents that
the work done was in compliance with applicable law during the construction
period, and if not so in compliance Landlord, at its expense, will comply with
such laws.
Section 15.06. Notwithstanding anything herein to the contrary, if at any
time during the Term, a capital expenditure for Building Equipment is required
in excess of $250,000 in order to comply with newly enacted legislation or
regulation of any public authority having jurisdiction, Landlord shall comply
with such requirement and receive payment from Tenant as follows:
(a) Landlord shall certify to Tenant Landlord's cost of complying
with such law, rule or regulation ("the Compliance Cost") and if requested by
Tenant Landlord shall exhibit copies of bills or statements relating thereto;
(b) the Compliance Cost shall be multiplied by a number such that
the product will be an amount equal to the monthly payment needed to amortize a
loan equal to the monthly payment needed to amortize a loan equal to the
Compliance Cost payable monthly over a 20 year term in constant payments of
principal and interest at the then best published rate for a secondary financing
as published by Manufacturers Hanover Trust Company (or any successor thereto)
(the product to be known as "Monthly Factor");
(c) the Monthly Factor shall be paid monthly over the months
remaining in the Term commencing at the time the replacement was made and shall
be due as an Additional Payment hereunder.
Section 15.07 In the event that Structural work is required pursuant to
the provisions of this Article, Landlord shall perform such work and bear the
cost thereof.
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ARTICLE 16
Access
Section 16.01. Landlord and its agents shall have the right to enter
and/or pass through the Premises at any time or times upon notice and at
reasonable times (except in the event of an emergency when Landlord may enter at
any time) (a) to examine the Premises and to show them to actual and prospective
Superior Mortgagees, or prospective purchasers, mortgagees or lessees (but with
regard to prospective lessees only during the last eighteen months of the Term)
of the Building and (b) to examine the Premises in order to determine whether
Tenant is complying with the obligations pursuant to this Lease; and (c) to make
such repairs, alterations, additions and improvements in or to the Premises (or
just the Building or the Building Equipment) as Landlord is required or desires
to make. Landlord shall be allowed to take all materials into and upon the
Premises that may be required in connection therewith, without any liability to
Tenant and without any reduction of Tenant's covenants and obligations hereunder
except that Landlord agrees not to store materials at the Premises.
Section 16.02. If at any time any windows of the Premises are temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building, or if any part of the Building, is
temporarily or permanently closed or inoperable, the same shall be without
liability to Landlord and without any reduction or diminution of Tenant's
obligations under this Lease, provided, however, that if it is Landlord's
responsibility to cure such condition, Landlord shall diligently and in good
faith cause to be made all repairs required to be made.
Section 16.03. During the period of 18 months prior to the Expiration Date
of this Lease, Landlord and its agents may exhibit the Premises to prospective
tenants, upon notice and at reasonable times.
Section 16.04. If during the last month of the Term, Tenant has removed
all of Tenant's Property from the Premises, and if Tenant shall have ceased
doing business therein, Landlord may, without notice to Tenant, immediately
enter the Premises and alter, renovate and decorate the same, without liability
to Tenant and without reducing or otherwise affecting Tenant's covenants and
obligations hereunder.
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ARTICLE 17
Notice of Occurrences
Section 17.01. Tenant shall give prompt notice to Landlord of (a) any
occurrence in or about the Demised Premises for which a reasonable man would
conclude that Landlord might be liable, (b) any fire or other casualty in the
Premises, (c) any damage to or defect in the Demised Premises, including the
Building Equipment and appurtenances thereof, for the repair of which Landlord
might be responsible, and (d) any damage to or defect in any part or
appurtenance of the Building Equipment.
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ARTICLE 18
Non-Liability and Indemnification
Section 18.01. Neither Landlord nor any partner, director, officer, agent,
servant or employee of Landlord shall be liable to Tenant for any loss, injury
or damage to Tenant or to any other person, or to this or their property,
irrespective of the cause of such injury, damage or loss, unless caused by or
resulting from the negligence of Landlord, its agents, servants, licensees,
invitees, or employees in the operation or maintenance of the Premises or the
Building (and then only if the casualty is not one for which Tenant was required
to obtain insurance pursuant to Article 12, without contributory negligence on
the part of Tenant or any of its subtenants or licensees or its or their
employees, agents or contractors). Further, neither Landlord nor any partner,
director, officer, agent, servant or employee of Landlord shall be liable (a)
for any such damage caused by other tenants or persons in, upon or about the
Demised Premises, or caused by operations in construction of any public or
quasi-public work, or (b) even if negligent, for incidental damages (such as
loss of income, loss of business or similar damages) arising out of any loss of
use of the Premises or any equipment or facilities therein by Tenant or any
person claiming through or under Tenant.
Section 18.02. Tenant shall indemnify and hold harmless Landlord and its
partners, directors, officers, agents and employees from and against any and all
claims arising from or in connection with (a) the conduct or management of the
Demised Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord) in or about the Demised
Premises (including sidewalks and other public areas) during the Term; (b) any
omission or negligence of Tenant or any of its subtenants or licensees or its or
their partners, directors, officers, agents, invitees, employees or contractors;
(c) any accident, injury or damage whatever other than that caused by Landlord's
negligence or the negligence of Landlord's agents, servants, employees or
invitees) occurring in, at or upon the Premises; and (d) any breach or default
by Tenant in the full and prompt payment and performance of Tenant's obligations
under this Lease; together with all costs, expenses and liabilities incurred in
or in connection with each such claim or action or proceeding brought thereon,
including, without limitation, all reasonable attorneys' fees and expenses. In
case any action or proceeding be brought against Landlord and/or its partners,
directors, officers, agents or employees by reason of any such claim, Tenant,
upon notice from Landlord, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to
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Landlord) unless Tenant is a party therein, in which case Tenant shall reimburse
Landlord for all of Landlord's reasonable attorneys' fees; if Tenant is a party
therein Tenant may defend Landlord with Tenant's counsel unless there would be a
conflict of interest in Landlord and Tenant having the same counsel in such
matter.
Section 18.03. Landlord shall indemnify and hold Tenant harmless from and
against any all claims or liabilities arising out of or in connection with any
unpaid Impositions, or any mechanics, materialmen, or other liens affecting the
Demised Premises on the Commencement Date, or arising out of work done prior to
the Commencement Date.
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ARTICLE 19
Curing Defaults
Section 19.01. If Tenant shall default in the performance of any of
Tenant's obligations under this Lease, Landlord may, without thereby waiving
such default (but shall not be obligated to) perform the same for the account
and at the expense of Tenant, without notice in a case of emergency or a
situation which in Landlord's reasonable opinion, with the passage of time, may
result in an emergency, and in any other case only if such default continues
after the expiration of thirty (30) days from the date Landlord gives Tenant
notice of the default provided, however, if such default is not reasonably
capable of being cured within such thirty (30) day period, Landlord may (but is
not obligated to do so) perform the same for the account of and at the expense
of Tenant if Tenant shall not have commenced and diligently proceeded to cure
such default.
Section 19.02. Other than as set forth in Section 38.09 if Landlord shall
default in the performance of any Landlord's obligations under this Lease,
Tenant may, without thereby waiving such default (but shall not be obligated to)
perform the same for the account and at the expense of Landlord, without notice
in a case of emergency, or a situation which in Tenant's reasonable opinion,
with the passage of time, may result in an emergency and in any other case only
if such default continues after the expiration of sixty (60) days from the date
Tenant gives Landlord notice of the default provided, however, if such default
is not reasonably capable of being cured within such sixty (60) day period,
Tenant may (but is not obligated to do so) perform the same for the account of
and at the expense of Landlord if Landlord shall not have commenced and
diligently proceeded to cure such default. Bills for any expenses incurred by
Tenant in connection with any such performance by it of work for Landlord shall
be payable by Landlord within 15 days after Landlord's receipt of such xxxx.
Late payments by Landlord shall bear interest at the same rate as late payments
by Tenant.
Section 19.03. Bills for any expenses incurred by Landlord in connection
with any such performance by it for the account of Tenant, and bills for all
costs, expenses and disbursements of every kind and nature whatsoever, including
reasonable counsel fees, involved in collecting or endeavoring to collect
overdue Base Annual Rent, Additional Payments or Additional Rent or any part
thereof or enforcing or endeavoring to enforce any rights against Tenant, or
Tenant's obligations hereunder, under or in connection with this Lease or
pursuant to law,
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including any such cost, expense and disbursement involved in instituting and
prosecuting summary proceedings or in recovering possession of the Premises
after default by Tenant or upon the expiration or sooner termination of this
Lease, and interest on all sums advanced by Landlord under this Section at the
rate and in the manner set forth in Section 3.04 shall be due as and for
Additional Rent.
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ARTICLE 20
Brokerage
Section 20.01. Tenant and Landlord each covenants, warrants and represents
to the other that no brokers except Xxxxxx X. Xxxxxx Company, Inc. and Yoles &
Xxxxx, Inc. (the "Brokers") were instrumental in bringing about or consummating
this Lease and that (a) Tenant had no conversations or negotiations with any
broker except the Brokers concerning the leasing of the Demised Premises, and
(b) Landlord had no conversations or negotiations with any broker except the
Brokers concerning Tenant's leasing of the Demised Premises.
Section 20.02. Tenant agrees to indemnify and hold harmless Landlord
against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, without limitation,
attorneys' fees and expenses arising out of any conversation or negotiations had
by Tenant with any broker other than the Brokers.
Section 20.03. Landlord agrees to indemnify and hold harmless Tenant
against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, without limitation,
attorneys' fees an expenses arising out of any conversation or negotiations had
by Landlord with any broker other than the Brokers.
Section 20.04. Landlord shall pay a brokerage commission due the Brokers
pursuant to a separate agreement between Landlord and each of the Brokers.
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ARTICLE 21
Notices
Section 21.01. Except as permitted in Section 21.02, any notice,
statement, demand, consent, approval or other communication required or
permitted to be given, rendered or made by either party to the other, pursuant
to this Lease or pursuant to any applicable law, rule, regulation, or
requirement of public authority, shall be in writing (whether or not so stated
elsewhere in this Lease) and shall be deemed to have been properly given,
rendered or made only if (a) sent by registered or certified mail, return
receipt requested, posted in a United States post office station or letter box
in the continental United States, or (b) personally delivered, return receipt
requested, and if to Tenant addressed to
Young & Rubicam Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X.
Attn: Chief Financial Officer
and with a courtesy copy to:
Young & Rubicam Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X.
Attn: General Counsel
and if to Landlord, addressed to:
Messrs. Xxxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
and with a courtesy copy to:
Xxxxx Xxxxx & Xxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
except that if Tenant shall move its above office outside of the Borough of
Manhattan, Tenant's address shall be the Demised Premises, and shall be deemed
to have been given, rendered or made on the first business day after the day so
mailed or delivered. Either party may, by notice as aforesaid, designate a
different address or addresses for notices, statements,
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demands, consents, approvals or other communications intended for it.
Section 21.02. Any notice, statement or demand for Rent by Landlord may be
made by personal delivery to Tenant, with the envelope or wrapper marked to the
attention of the Chief Financial Officer. Such notice shall be deemed delivered
on the date personally delivered.
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ARTICLE 22
Estoppel Certificates
Section 22.01. Each party agrees, at any time and from time to time, as
requested by the other party, upon not less than 10 days' prior notice, to
execute and deliver to the other a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications); certifying the dates to which the Base Annual Rent, Additional
Payments and Additional Rent have been paid; stating whether or not, to the best
knowledge of the signer, the other party is in default in performance of any of
its obligations under this Lease, and, if so, specifying each such default of
which the signer shall have knowledge; and stating whether or not, to the best
knowledge of the signer, any event has occurred which with the giving of notice
or passage of time, or both, would constitute such a default, and, if so,
specifying each such event, it being intended that any such statement delivered
pursuant hereto shall be deemed a representation and warranty to be relied upon
by the party requesting the certificate and by others with whom such party may
be dealing, regardless of independent investigation. Tenant or Landlord, as the
case may be, also shall include in any such statement such other information
concerning this Lease as Landlord or Tenant may reasonably request.
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ARTICLE 23
Window Cleaning
Section 23.01. Tenant will not require, permit, suffer or allow the
cleaning of any window in the Demised Premises from the outside (within the
meaning of Section 202 of the New York Labor Law or and successor statute
thereto) unless the equipment and safety devices required by all applicable
provisions of law including Section 202 of the New York Labor Law or any
successor statute thereto, or the rules of the Board of Standards and Appeals
are provided and used. Tenant hereby indemnifies Landlord against liability as a
result of the Tenant's requiring, permitting, suffering or allowing any window
in the Premises to be cleaned from the outside in violation of any applicable
rule, regulation or provision of law.
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ARTICLE 24
Quiet Enjoyment
Section 24.01. So long as Tenant pays all of the Base Annual Rent and
Additional Rent and performs all of Tenant's other obligations hereunder, Tenant
shall peaceably and quietly have, hold and enjoy the Demised Premises without
hindrance, ejection or molestation by Landlord or any person lawfully claiming
through or under Landlord, subject, nevertheless, to the provisions of this
Lease and to Superior Mortgages (as limited and modified by Article 27). This
personal covenant shall be construed as a covenant running with the Land, and is
not, nor shall it be construed as, a personal covenant of Landlord, except to
the extent of Landlord's interest in this Lease and only so long as such
interest shall continue, and thereafter this covenant shall be binding only upon
subsequent successors in interest to Landlord's interest in this Lease, to the
extent of their respective interests, as and when they shall acquire the same,
and so long as they shall retain such interest.
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ARTICLE 25
Mechanics' Liens
Section 25.01. If Tenant causes any Structural Alteration, Alterations,
changes, additions, improvements or repairs to be made to the Demised Premises,
or material furnished or labor performed therein or thereon, neither Landlord
nor the Demised Premises shall, under any circumstances, be liable for the
payment of any expenses incurred or for the value of any such work done or
material furnished to the Demised Premises or any part thereof; but all such
alterations, changes, additions, improvements and repairs and materials and
labor shall be at Tenant's expense, and Tenant shall be solely and wholly
responsible to contractors, laborers and materialmen furnishing labor and
material to the Demised Premises, or any part thereof, for or on behalf of
Tenant.
Section 25.02. Tenant shall not suffer or permit any mechanics' liens to
be filed against the Demised Premises nor against Tenant's leasehold interest in
the Demised Premises, by reason of work, labor, services or material supplied to
Tenant or to any occupant of the Demised Premises. If any such mechanic's lien
shall at any time be filed against the Demised Premises, Tenant shall, at its
own cost and expense, cause the same to be cancelled and discharged of record by
surety bond or appropriate cash deposit or other appropriate means within thirty
(30) days after the date of filing the same and notice thereof to Tenant, and
Tenant shall indemnify and save Landlord harmless from and against any and all
costs, expenses, claims, losses or damages resulting therefrom or by reason
thereof.
Section 25.03. Tenant, at Tenant's expense, shall also defend on behalf of
Landlord, any action, suit or proceedings which may be brought thereon or for
the enforcement of such liens or orders, and Tenant shall pay any damages and
satisfy and discharge any judgment entered thereon and save Landlord harmless
from and against any and all costs, expenses, claims, losses or damages
resulting therefrom or by reason thereof.
Section 25.04. If Tenant shall fail to discharge such mechanic's lien
within such period, then, in addition to any other right or remedy of Landlord,
Landlord may, but shall not be obligated to, discharge the same either by paying
the amount claimed to be due or by procuring the discharge of such lien by
deposit in court or bonding, and in any such event, Landlord shall be entitled,
if Landlord so elects, to compel the prosecution of any action for the
foreclosure of such mechanic`s lien by the lienor and to pay the amount of the
judgment, if any, in favor of the lienor, with interest, costs and allowances.
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Section 25.05. Any amount paid by Landlord for any of the aforesaid
charges and all other expenses of Landlord, including reasonable counsel fees,
in defending any such action or in procuring the discharge of said lien, with
all necessary disbursements in connection therewith with interest thereon
computed in the manner set forth in Section 3.04, shall be repaid within a
period of twenty (20) days after written demand therefor by Landlord to Tenant,
and may be treated as Additional Rent payable with the next installment of Base
Annual Rent.
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ARTICLE 26
Assignment and Sub-Letting
Section 26.01. Tenant may at any time after the commencement of the Full
Term, without releasing itself from any liability hereunder assign this Lease in
whole and not in part, without the Landlord's consent, subject to Section 26.04
and the following:
(a) at the time of (i) the making of such assignment and (ii) the
effective date of such assignment, Tenant shall not be in default beyond the
time for curing any default under any of the material terms, covenants or
conditions of this Lease;
(b) Tenant shall have delivered a true copy of such assignment to
Landlord not less than one (1) day prior to the effective date of such
assignment;
(c) the assignee shall have executed an assumption of each of
Tenants' obligations hereunder in form reasonably satisfactory to Landlord and
shall have delivered a duplicate original to Landlord not less than one (1) day
prior to the effective date of such assignment;
(d) The assumption shall provide that Tenant and the assignee shall
be jointly and severally liable for the payment of all sums and the performance
of all terms, covenants, conditions and agreements required to be performed by
Tenant;
(e) the assignment shall not attempt to amend or modify any of the
terms, covenants or conditions of this Lease; and
(f) no assignment shall be effective if the Assignee is entitled to
diplomatic or sovereign immunity or is otherwise immune from the service of
process;
(g) except as hereinabove set forth, no assignment shall be
permitted and, if made, shall not be effective against Landlord; and
(h) Tenant may not assign this Lease, directly or indirectly, to an
assignee who is a "tax exempt entity" as defined in Section 168(j)(4) of the
Internal Revenue Code of 1954, or any successor section.
Section 26.02. Subject to the provisions of Section 26.04, Tenant shall
have the right to sub-let, all or a portion of the
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Demised Premises at any time without Landlord's consent, except that:
(a) at the time of (i) making such sublease and (ii) the effective
date of such sublease, Tenant shall not be in default beyond the time for curing
any default under any of the material terms, covenants or conditions of this
Lease;
(b) all sub-leases shall be in writing; and
(c) no sub-lease shall extend beyond the Term of this Lease; and
(d) true copies of all sub-leases and any modifications thereto
shall be delivered to Landlord within ten (10) days of execution;
(e) all sub-leases shall be, and shall provide therein, that they
are subject and subordinate to this Lease and contain sub-lessee's agreement for
the benefit of Landlord not to violate any of the provisions of this Lease
(other than the obligation to pay Rent);
(f) no sub-lease shall be permitted or effective if such sub-lessee
shall be entitled to diplomatic or sovereign immunity or immunity from judicial
process; and
(g) Tenant may not sublease all or any portion of the Demised
Premises, directly or indirectly, to a subtenant who is a "tax-exempt entity" as
defined in Section 168(j)(4) of the Internal Revenue Code of 1954, or any
successor section in excess of such portion of the rentable area of the Demised
Premises as will trigger the provisions of such Section or successor section.
Section 26.03.
(a) The right granted Tenant hereunder to sub-let all or a portion
of the space shall not be deemed to grant or extend any rights from Landlord to
such sub-tenants, and Landlord shall not be bound by any term, covenant or
condition of any sub-lease, whether or not Landlord has received notice of such
sub-let.
(b) In the event of the termination of this Lease, whether by
expiration, forfeiture, cancellation or surrender or any other termination all
sub-leases shall, at the option of Landlord, terminate.
(c) The rights granted Tenant hereunder are Tenant's exclusive
sub-let rights and Tenant may not permit or allow any sub-let in contravention
of the terms hereinabove set forth.
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Section 26.04. In the event that at any time during the Term hereof Tenant
shall, in good faith, determine to assign, directly or indirectly, all or a
portion of its interest in the Demised Premises, or sublet, directly or
indirectly all but an immaterial portion of its interest in the Demised Premises
(except an assignment to collateralize a loan or an assignment or sublease to an
entity owning, owned, controlling, controlled, or under common control with
Tenant) and if Landlord reasonably demonstrates to Tenant its financial ability
to support such assumption or sublease, as the case may be, Tenant shall first
submit the proposed offer to Landlord, containing prices, rental rates, closing
date and other salient terms. Tenant's proposal shall be in the form of an
assignment or sublease, as the case may be. Landlord shall have forty-five (45)
days from receipt to accept such offer; in the event that Landlord accepts the
offer, Landlord shall have fifteen (15) days to execute an assignment or
sublease, as the case may be, with Tenant. If Landlord fails to accept such
offer, Tenant may offer the Demised Premises, or portion thereof, to such other
prospective assignee or subtenant as Tenant may desire, upon the terms and for
the amount contained in Tenant's initial offer, provided, however, that if
Tenant does not execute an assignment or sublease with such other prospective
assignee or subtenant upon such terms within nine (9) months and fifteen (15)
days from the date Tenant first submitted an offer to Landlord, Tenant may not
assign or sublet the Demised Premises, or portion thereof without again
complying with this Section.
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ARTICLE 27
Subordination
Section 27.01. This Lease, and all rights of Tenant hereunder, are and
shall be subject and subordinate to all mortgages which may now or hereafter
affect the Demised Premises, or the land or the Building ("Superior Mortgage")
to each and every advance made or hereafter to be made under such mortgages, and
to all renewals, modifications, replacements and extensions of such mortgages
and spreaders and consolidations of such mortgages. However, this subordination
of this Lease is expressly subject to the following conditions:
(a) Tenant shall have received notice of such Superior Mortgage.
(b) So long as Tenant has complied with all the terms and provisions
of this Lease and is not in default under and terms, covenants or
conditions of this Lease, (i) Tenant shall not be named or joined in any
action or proceeding to foreclose any Superior Mortgage (unless Tenant is
deemed a necessary party), (ii) any such action or proceeding shall not
result in a cancellation or termination of this Lease, and (iii) if the
holder of any Superior Mortgage becomes the owner of the fee of the
Demised Premises or if the Demised Premises shall be sold as a result of
any action or proceeding to foreclose any Superior Mortgage, this Lease
shall continue in full force and effect as a direct lease between Tenant
and the then owner of the Demised Premises upon all of the terms and
conditions of this Lease, except such as are not applicable or pertinent
to the remainder of the Term.
(c) So long as Tenant has complied with all the terms and provisions
of this Lease and is not in default under the terms, covenants or
conditions of the Lease, and subject to the imposition of such conditions
as they may require, the holder of any such Superior Mortgage ("Superior
Mortgagee") shall consent to the application of insurance proceeds and
condemnation awards in the manner set forth in Articles 12, 13, and 14.
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Section 27.02. The subordination herein set forth shall be self-operative
and no further instrument of subordination shall be required. However, should
Tenant request, Landlord shall use its best efforts to obtain from any Superior
Mortgagee, written confirmation of Tenant's rights hereunder, provided that if
Landlord shall be required to incur any expense in obtaining such agreement,
Tenant shall reimburse Landlord for all expenses (including reasonable
attorney's fees) incurred in obtaining such agreement. Tenant shall, if
requested by Landlord or the Superior Mortgagee execute, at Tenant's cost and
expense, such an agreement, in recordable form, as may be reasonably requested
to confirm such subordination.
Section 27.03. 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 claim a partial or total eviction, Tenant shall not exercise
such right (a) until it has given written notice of such act or omission to
Landlord and each Superior Mortgagee whose name and address shall previously
have been furnished to Tenant, and (b) until a reasonable period for remedying
such act or omission shall have elapsed following the giving of such notice and
following the time when such Superior Mortgagee shall have become entitled under
such Superior Mortgage, to remedy the same (which reasonable period shall be the
same period to which Landlord would be entitled under this Lease or otherwise,
after similar notice, to effect such remedy), provided such Superior Mortgagee
shall with due diligence give Tenant notice of intention to, and commence and
continue to remedy such act or omission, provided, however, if such act or
omission shall relate to an event described in Section 5.09 or Article 13
allowing Tenant to cancel this Lease, the Superior Mortgagee shall not have
additional time (except as set forth in Section 5.09 or Article 13) to remedy
such act or omission. Landlord shall furnish Tenant with the name and address of
the Superior Mortgagee.
Section 27.04. If any Superior 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 at the request of such party so succeeding
to Landlord's rights (herein called "Successor Landlord" and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that Successor Landlord
may reasonably request to evidence such attornment. 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
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set forth in this Lease except that the Successor Landlord shall not (a) be
liable for any previous act or omission of Landlord (who shall remain liable to
Tenant) under this Lease; (b) be subject to any offset, not expressly provided
for in this Lease, which theretofore shall have accrued to Tenant against
Landlord; or (c) unless previously agreed upon, be bound by any previous
modification of this Lease or by any previous prepayment of Base Annual Rent in
excess on one month.
Section 27.05. If, in connection with the obtaining, renewal or extension
of any Superior Mortgage, such proposed or existing Superior Mortgagee shall
request modifications of this Lease, Tenant shall consent to such modifications
provided they do not materially or adversely (a) increase Tenant's obligations
hereunder, or (b) decrease Tenant's rights hereunder. Any increase in Base
Annual Rent shall be deemed material and adverse.
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ARTICLE 28
Excavation and Shoring
Section 28.01.
A. If any excavation shall be made or contemplated to be made for
building or other purposes upon property or streets adjacent to or nearby the
Demised Premises, Tenant either
(a) shall afford to the person or persons causing or authorized to
cause such excavation the right to enter upon Demised Premises for the
purpose of doing such work as such person or persons shall consider to be
necessary to preserve any of the walls or structures of the Building or
the Demised Premises from injury or damage and to support the same by
proper foundations, or
(b) shall, at Landlord's expense, do or cause to be done all such
work as may be necessary to preserve any of the walls or structures of the
improvements on the Demised Premises from injury or damage and to support
the same by proper foundations.
Tenant shall not by reason of any such excavation or work, have any claim
against Landlord for suspension, diminution, abatement or reduction of Rent
under this Lease or for damages or indemnity unless resulting from or arising
out of Landlord's negligence or willful misconduct.
B. Landlord hereby assigns to Tenant, without recourse, such rights,
if any, as Landlord may have against any parties causing damage to the Demised
Premises to xxx for and recover amounts expended by Tenant as a result of such
damage.
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ARTICLE 29
Arbitration
Section 29.01. Except as set forth in Article 7, in any case in which it
is provided by the terms of this Lease that any matter shall be determined by
arbitration, such arbitration shall be conducted in the manner specified in this
Article.
Section 29.02. The party desiring such arbitration shall give written
notice to that effect to the other party specifying the matter to be arbitrated
and shall in such notice appoint a person of recognized competence as arbitrator
on its behalf. Within fifteen days thereafter, the other party shall by written
notice to the original party appoint a second person of recognized competence as
arbitrator on its behalf. The arbitrators thus appointed shall appoint a third
person, independent and of recognized competence and such three arbitrators
shall as promptly as possible determine such matter, provided, however, that
(a) if the second arbitrator shall not have been appointed as
aforesaid, the first arbitrator shall proceed to determine such matter;
and
(b) if the two arbitrators appointed by the parties shall be unable
to agree, within fifteen days after the appointment of the second
arbitrator, upon the appointment of a third arbitrator, they shall give
written notice of such failure to agree to the parties, and, if the
parties fail to agree upon the selection of such third arbitrator within
fifteen days after the arbitrators appointed by the parties give notice as
aforesaid, then within ten days thereafter either of the parties upon
written notice to the other party may request such appointment by the then
President of the Real Estate Board of New York, Inc. (or any organization
successor thereto), or in his absence, refusal, failure or inability to
act, may apply for such appointment to the presiding Justice of the
Appellate Division, First Department, Supreme Court, New York County, New
York, (or to any other court having jurisdiction and exercising functions
similar to those now exercised by the said Court).
Landlord and Tenant shall each be entitled to present evidence and
argument to the arbitrators.
Section 29.03. The determination of the majority of the arbitrators or of
the sole arbitrator, as the case may be, shall be conclusive upon the parties
and judgment upon the same
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may be entered in any court having jurisdiction thereof. The arbitrators or the
sole arbitrator, as the case may be, shall give written notice to the parties
stating their or his determination, and shall furnish to each party a signed
copy of such determination.
Section 29.04. Each party shall pay the fees and expenses of the
arbitrator appointed by such party and one-half of the fee and expenses of the
third arbitrator, if any.
Section 29.05. Anything in this Lease contained to the contrary
notwithstanding, whenever under the provisions of this Lease, Tenant is required
to make any payment or to perform any act or thing at a specified time or within
a specified time limit, and any such payment or performance is subject to
arbitration under this Article, such time or time limit as it relates to the
specific amount subject to arbitration, as the case may be, shall be and be
deemed to be extended by the period consumed by the institution and prosecution
of any arbitration concerning or relating to such payment or performance.
Section 29.06. As used herein a person of recognized competence shall be
any person engaged in the real estate business in Manhattan as a broker,
appraiser lender, attorney or accountant for at least the ten preceding years.
Section 29.07. Except as specifically set forth in this Lease, the parties
hereto have not agreed to arbitration for the determination of any dispute
hereunder.
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ARTICLE 30
No Rent Abatement
Section 30.01. Unless otherwise expressly provided in this Lease, no
abatement, diminution or reduction of Rent shall be claimed by or allowed to
Tenant, or any person claiming under it, under any circumstances, whether for
inconvenience, discomfort, interruption of business, or otherwise, arising from
any cause including the making of alterations, changes, additions, improvements
or repairs to the Building, or buildings, now on or which may hereafter be
erected on the Demised Premises, by virtue or because of any present or future
governmental laws, ordinances, requirements, orders, directions, rules or
regulations or for any other cause or reason.
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ARTICLE 31
Recordable Memorandum
Section 31.01. Promptly after the Landlord acquires fee title to the
Demised Premises or a leasehold in the Demised Premises, Landlord and Tenant
shall execute a memorandum of lease in recordable form, setting forth a
description of the Demised Premises, the Term, rights of renewal, and such other
information, excepting the Rent, as either party may reasonably request. The
memorandum of lease may be recorded by either party hereto and the party so
recording such instrument shall pay the recording fee. In no event shall the
memorandum of lease be deemed to alter, amend, or modify any of the terms,
covenants or conditions of this Lease. Except as set forth herein Tenant shall
not record this Lease.
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ARTICLE 32
Surrender
Section 32.01. On the last day of the Term, or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the Demised
Premises, Tenant shall quit and surrender the Demised Premises to Landlord
"broom clean" and in good order, condition and repair, except for ordinary wear
and tear and such damage or destruction as Landlord is required to repair or
restore under this Lease, free and clear of all lettings and occupancies other
than subleases to which Landlord shall have specifically and particularly
consented, and Tenant shall remove all of the Tenant's Property therefrom except
as otherwise expressly provided in this Lease.
Section 32.02. No act or thing done by Landlord or its agents shall be
deemed an acceptance of a surrender of the Demised Premises, and no agreement to
accept such surrender shall be valid unless in writing and signed by Landlord.
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ARTICLE 33
Conditions of Limitation
Section 33.01. This Lease and the Term and estate hereby granted are
subject to the limitation that whenever Tenant, or any guarantor, if any, of
Tenant's obligations under this Lease, shall make an assignment for the benefit
of creditors, or shall file a voluntary petition under any bankruptcy or
insolvency law, or an involuntary petition alleging an act of bankruptcy or
insolvency shall be filed against Tenant or such guarantor under the
reorganization provisions of the United States Bankruptcy Code or under the
provisions of any law of like import, or whenever a permanent receiver of
Tenant, or such guarantor, or of or for the property of Tenant, or such
guarantor shall be appointed, then Landlord (a) if such event occurs without the
acquiescence of Tenant, or such guarantor, as the case may be, at any time after
the event continues for ninety (90) days, or (b) in any other case at any time
after the occurrence of any such event, may give Tenant a notice of intention to
end the Term of this Lease at the expiration of five days from the date of
service of such notice of intention, and upon the expiration of said five-day
period this Lease and the Term and estate hereby granted, whether or not the
Term shall theretofore have commenced, shall terminate with the same force and
effect as if that day were the Expiration Date of this Lease, but Tenant shall
remain liable for damages as provided in Article 35. If as a matter of law,
Landlord has no right on the bankruptcy of Tenant to terminate this Lease, then,
if Tenant, as debtor, or its trustee wishes to assume or assign this Lease, in
addition to curing or adequately assuring the curing of all defaults existing
under this Lease on Tenant's part on the date of filing of the proceeding (such
assurance being defined below), Tenant, as debtor, or the trustee or assignee
must also furnish adequate assurance of future performance under this Lease (as
defined below). Adequate assurance of curing defects means the posting with
Landlord a sum in cash sufficient to defray the cost of such cure. Adequate
assurance of future performance under this Lease means posting a deposit equal
to two (2) months Rent and in the case of an assignee, assuring Landlord that
assignee is financially capable of assuming this Lease. In a reorganization
under Chapter 11 of the Bankruptcy Code, the debtor or trustee must assume or
assign this Lease within 120 days from the filing of the proceeding, or the
debtor or the trustee shall be deemed to have rejected or terminated this Lease.
Section 33.02. The Lease and the term and estate hereby granted are
subject to the further limitations that:
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(a) if Tenant shall default in the payment of any Base Annual Rent
or Impositions and such default shall continue for fifteen (15) days after
notice, or
(b) if Tenant shall default in the payment of Additional Rent (other
than Impositions) and such default shall continue for twenty (20) days
after notice from Landlord specifying such default; or
(c) if Tenant shall be, whether by action or inaction, in default in
its obligations under this Lease (other than a default in the payment of
Base Annual Rent or Additional Rent) and such default shall continue and
not be remedied within thirty (30) days after Landlord shall have given to
Tenant a notice specifying the same, or in the case of a default which
cannot with due diligence be cured within a period of thirty (30) days and
the continuance of which for the period required for cure will not subject
Landlord to prosecution for a crime (as more particularly described in
Section 15.02) or foreclosure of any Superior Mortgage, if Tenant shall
not (i) within said 30-day period advise Landlord of Tenant's intention to
take all steps necessary to remedy such default, (ii) duly commence within
said 30-day period, and thereafter diligently prosecute to completion all
steps necessary to remedy the default and (iii) complete such remedy
within a reasonable time after the date of said notice of Landlord,
then, in any of said cases, Landlord may give to Tenant a notice of intention to
end the Term of this Lease, and upon the expiration of said five days from the
date of service of such notice of intention this Lease and the Term and estate
hereby granted, whether or not the Term shall theretofore have commenced, shall
terminate with the same effect as if that day were the Expiration Date of this
Lease, but Tenant shall remain liable for damages as provided in Article 35.
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ARTICLE 34
Re-Entry by Landlord
Section 34.01. If Tenant shall default in the payment of any Rent, and
such default shall continue after any applicable grace period, or if this Lease
shall terminate as provided in Article 33, Landlord or Landlord's agents and
employees may immediately or at any time thereafter re-enter the Premises, or
any part thereof, either by summary dispossess proceedings or by any suitable
action or proceeding at law, or by force or otherwise, 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 Demised Premises. The word "re-enter", as used herein, is not restricted to
its technical legal meaning. If this lease is terminated under the provisions of
Article 33, or if Landlord shall re-enter the Demised Premises under the
provisions of this Article, or in the event of the termination of this Lease, or
of re-entry, by or under any summary dispossess or other proceeding or action or
any provision by law by reason of default hereunder on the part of Tenant,
Tenant shall thereupon pay to Landlord the Base Annual Rent and Additional Rent
payable up to the time of such termination of this Lease, or of such recovery of
possession of the Premises by Landlord, as the case may be, and shall also pay
to Landlord damages as provided in Article 35.
Section 34.02. In the event of a breach or threatened breach by Tenant of
any of its obligations under this Lease, Landlord shall also have the right to
seek temporary or permanent injunctive relief. The special remedies to which
Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any other remedies to which Landlord may lawfully be entitled at
any time and Landlord may invoke any remedy allowed at law or in equity as if
specific remedies were not provided for herein.
Section 34.03. If this Lease shall terminate under the provisions of
Article 33, or if Landlord shall re-enter the Demised Premises under the
provisions of this Article, or in the event of the termination of this Lease, or
of re-entry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all monies, if any, paid by Tenant to
Landlord, whether as advance Rent, security or otherwise, but such monies shall
be credited by Landlord against any Base Annual Rent or Additional Rent due from
Tenant at the time of such termination or re-entry or, at Landlord's option,
against any damages payable by Tenant under Article 35 or pursuant to law.
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ARTICLE 35
Damages
Section 35.01. If this Lease is terminated under the provisions of Article
33, or if Landlord shall re-enter the Demised Premises under the provisions of
Article 34, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default beyond any applicable grace period hereunder on the
part of Tenant, Tenant shall pay to Landlord as damages sums equal to the Base
Annual Rent and the Additional Payment which would have been payable by Tenant
had the Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the date contemplated as the Expiration
Date of this Lease had it not so terminated or if Landlord had not so re-entered
the Demised Premises, provided, however, that if Landlord shall relet the
Demised Premises during said period, Landlord shall credit Tenant with the net
rents received by Landlord from such reletting, such net rents to be determined
by first deducting from the gross rents as and when received by Landlord from
such reletting the expenses incurred or paid by Landlord in terminating this
Lease or in re-entering the Demised Premises and in securing possession thereof,
as well as the expenses of reletting, including without limitation, altering and
preparing the Demised Premises for new tenants, brokers' commissions, reasonable
legal fees, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom, it being understood that any such reletting
may be for a period shorter or longer than the remaining term of this Lease; but
in no event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled to receive in any suit for the collection of damages pursuant to this
section a credit in respect of any net rents from a reletting, except to the
extent that such net rents are actually received by Landlord. If the Demised
Premises or any part thereof be relet by Landlord for the unexpired portion of
the Term, or any part thereof, before presentation of proof of such damages to
any court, commission or tribunal, the amount of rent reserved upon such
reletting shall, prima facie, be the fair and reasonable rental value for the
Demised Premises, or part thereof, so relet during the term of the reletting.
Landlord shall not be liable in any way whatsoever for its failure or refusal to
relet the Demised Premises or any part thereof, or if the Demised Premises or
any part thereof are relet, for its failure to collect the rent under such
reletting, and no such refusal or failure to relet or failure
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to collect rent shall release or affect Tenant's liability for damages or
otherwise under this Lease.
Section 35.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 33, or under any provision of law,
or had Landlord not re-entered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as damages by reason of
the termination of this Lease or re-entry on the Demised Premises for the
default of Tenant under this Lease an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which, such damages are to be proved whether or not such amount be greater,
or less than any of the sums referred to in Section 35.01.
Section 35.03. In addition, if this Lease is terminated under the
provisions of Article 33, or if Landlord shall re-enter the Demised Premises
under the provisions of Article 34, Tenant agrees that:
(a) the Demised Premises shall be in the same condition as that in
which Tenant has agreed to surrender the same to Landlord at the
expiration of the Term hereof;
(b) Tenant shall have performed prior to any such termination any
covenant of Tenant contained in this Lease for the making of any
Alteration or for restoring or rebuilding the Demised Premises, or any
part thereof; and
(c) for the breach of any covenant of Tenant set forth above in this
Section 35.03, Landlord shall be entitled immediately, without notice or
other action by Landlord, to recover, and Tenant shall pay, as and for
liquidated damages therefor, the cost of performing such covenant.
Section 35.04. In addition to any other remedies Landlord may have under
this Lease, and without reducing or adversely affecting any of Landlord's rights
and remedies under Article 33, if any Base Annual Rent, Additional Rent and
damages
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payable hereunder by Tenant to Landlord are not paid within the time periods set
forth elsewhere in this Lease, the same shall bear interest at the rate set
forth in Section 3.04, from the due date thereof until paid, and the amount of
such interest shall be Additional Rent hereunder.
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ARTICLE 36
Affirmative Waivers
Section 36.01. Tenant, on behalf of itself and any and all persons
claiming through or under Tenant, does hereby waive and surrender all right and
privilege which it, they or any of them might have under or by reason of any
present of future law, to redeem the Premises or to have a continuance of this
Lease after being dispossessed or ejected therefrom after final judicial
determination.
Section 36.02. If Tenant is in arrears in payment of Base Annual Rent or
Additional Rent, Tenant waives Tenant's right, if any, to designate the items
which any payments made by Tenant are to be credited, and Tenant agrees the
Landlord may apply any payments made by Tenant to such items as Landlord sees
fit, irrespective of and notwithstanding any designation or request by Tenant as
to the items which any such payments shall be credited.
Section 36.03. Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either against the other on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises, including, without limitation, any claim of injury or damage,
and any emergency and other statutory remedy with respect thereto.
Section 36.04. Tenant shall not interpose any counterclaim of any kind in
any action or proceeding commenced by Landlord to recover the Rent, unless
Tenant's failure to assert such counterclaim in such proceeding shall forever
preclude Tenant, as a matter of law, from pursuing such claim.
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ARTICLE 37
No Waivers
Section 37.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future performance of such one or more
obligations of this Lease or the right to exercise such election, but the same
shall continue and remain in full force and effect with respect to any
subsequent breach, and/or omission. The receipt and acceptance of Base Annual
Rent or Additional Rent with knowledge of breach by Tenant of any obligation of
this Lease shall not be deemed a waiver of such breach.
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ARTICLE 38
Miscellaneous
Section 38.01. Tenant expressly acknowledges that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement which may be made between the parties concurrently with the
execution and delivery of this Lease and shall expressly refer to this Lease.
All understandings and agreements heretofore had between the parties are merged
in this Lease and any other written agreement(s) made concurrently herewith,
which alone fully and completely express the agreement of the parties and which
are entered into after full investigation, neither party relying upon any
statement or representation not embodied in this Lease or any other written
agreement(s) made concurrently herewith.
Section 38.02. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of the abandonment is
sought.
Section 38.03. Except as otherwise expressly provided in this Lease, the
obligation of this Lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to herein.
Section 38.04. Tenant shall look only to Landlord's estate and property in
the Demised Premises (or the proceeds thereof) for the satisfaction of Tenant's
remedies for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder, and no other property or assets of Landlord or its partners 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 Demised Premises.
Section 38.05. Any apportionments or prorations of Base Annual Rent or
Additional Rent to be made under this Lease
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shall be computed on the basis of a 360 day year with 12 months of 30 days each.
Section 38.06. In each instance hereunder wherein Tenant has agreed to
deliver a certificate or other instrument, Landlord shall be entitled to execute
such certificate or instrument on behalf of Tenant, as Tenant's attorney-in-fact
if Tenant does not deliver such certificate or instrument to Landlord or
Landlord's designee, properly executed, within the time herein set forth for the
delivery of such certificate or instrument.
Section 38.07. Irrespective of the place of execution or performance this
Lease shall be governed by and construed in accordance with the laws of the
State of New York. If any provision of this Lease or the application thereof to
any person or circumstance shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Lease and the application of that provision
to other persons or circumstances shall not be affected but rather shall be
enforced to the extent permitted by law. The table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. Each covenant, agreement, obligation or other
provision of this Lease on Tenant's part to be performed, shall be deemed and
construed as a separate and independent covenant of Tenant, not dependent on any
other provision of this Lease. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
Section 38.08. Whenever Tenant shall submit to Landlord any plan,
agreement, or other document for Landlord's consent or approval, and Landlord
requires the opinion of Landlord's architect or engineers, attorney or
accountant as to the form or substance thereof, Tenant agrees to pay the
reasonable fee of such person for reviewing the said plan, agreement, or
document.
Section 38.09. (a) If Landlord fails to meet an obligation required to be
performed by Landlord pursuant to the Lease within thirty days after notice from
Tenant of Landlord's failure to meet such obligation and Landlord thereafter
certifies to Tenant that 1) Landlord is financially unable to meet such
obligation, and 2) after exerting reasonable efforts to secure the financing
required to meet such obligation, Landlord has been unable to procure such
financing, then and in
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such event, the Tenant may but shall not be obligated to (1) procure a loan for
Landlord, directly or indirectly, of the funds necessary to enable Landlord to
meet the aforementioned obligation; provided, however, that the amount of such
loan shall not exceed the Base Annual Rent due over the succeeding twelve
months. The loan will be self-amortizing in constant monthly payments of
principal and interest over a twelve month term commencing thirty days after the
full proceeds of the loan have been paid to Landlord, provided, however, if the
full proceeds of the loan have not been paid to Landlord within three (3) months
of the execution of the Note hereinafter mentioned, the Landlord will commence
repayment of the amount borrowed upon the expiration of said three (3) month
period hereinabove referred to and bearing interest at the rate set forth in
Section 3.04 (but without late charges and penalties as set forth in 3.04(y)).
The loan shall be evidenced by a note ("Note") incorporating these terms in a
form satisfactory to Tenant, which Note shall be delivered by Landlord to Tenant
or Tenant's designee on the date Landlord delivers to Tenant the certification
hereinabove set forth. In the event that Landlord fails to make any payment
required to be made pursuant to the Note within 10 days of due date, Tenant may
offset that payment against the next due installment of Base Annual Rent due
hereunder and thereafter, without further notice Tenant may continue such
monthly offset until the Note has been fully paid, or (2) guarantee a loan in an
amount necessary to enable Landlord to meet the aforementioned obligation,
provided, however that the amount of such loan shall not exceed the Base Annual
rent due over the succeeding twelve months. If Landlord fails to make any
payment or meet any obligation under such guaranteed loan and as a result Tenant
is required to expend any amount on Landlord's behalf in accordance with its
obligations under such guarantee, Tenant may offset such expenditure together
with interest thereon at the rate set forth in Section 3.04 (but without late
charges and penalties as set forth in 3.04(y)) against the next due monthly
installment of Base Annual Rent due hereunder and thereafter, without further
notice Tenant may continue such monthly offset until such expenditure and
interest has been fully paid.
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The proceeds of any loan made by Tenant pursuant to (1) or any loan
guaranteed by Tenant pursuant to (2) shall be held by Tenant and shall be
applied to the payment of the cost of Landlord's performance of its obligations
from time to time as the performance progresses, in installments equal to the
cost of work completed and materials furnished in accordance with the provisions
of Section 13.02 and 13.03(b), (c), and (d). At the time of each takedown of
funds, Landlord or if Landlord is a partnership or a corporation, by a general
partner or a senior executive officer, of Landlord, as the case may be, shall
prepare and make available to Tenant such documentation as Tenant may require
setting forth the following:
(i) that the sum then requested represents the amount that either
has been paid by Landlord or is then due to contractors, subcontractors,
materialmen, engineers, architects or other persons who have rendered services
or furnished materials and the amounts so paid or due to each of the said
persons in respect thereof, and that no part of such expenditures has been or is
being made the basis of any previous or then pending request for the takedown of
loan proceeds or has been made out of loan proceeds; and
(ii) that the cost, as reasonably estimated by Landlord, required to
complete the aforesaid performance does not exceed the aggregate amount of the
loan remaining in Tenant's hands after payment of the sum required.
Upon compliance with the foregoing provisions of this Section, Tenant
shall pay or cause to be paid out of such loan proceeds to Landlord or the
persons referred to in clause (i) above, the respective amounts which Landlord
has documented is due to them. If after fully performing all obligations
required of Landlord there are excess funds remaining with Tenant, Tenant shall
(x) retain such funds if the loan was procured by Tenant and the amount of the
loan made to Landlord will be reduced by the amount Tenant so retains or (y) if
Tenant has guaranteed such loan, Tenant shall remit such excess funds to
Landlord, provided, however, if Tenant is required to expend any amount on
Landlord's behalf in accordance with Tenant's obligation under the guarantee,
Tenant may retain such excess funds to the extent required to repay or reduce
the Landlord's obligations to repay the amount of such expenditure together with
interest thereon.
(b) If, within 60 days of Tenant's notice as set forth in subsection (a)
or within a reasonable period following the making or guarantying of the loan
referred to in paragraph (a) hereof (or a shorter period as may be required in
the event of an emergency), Landlord fails to take any action to satisfy
Landlord's obligation required to be performed by Landlord
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pursuant to the Lease or fails diligently to proceed to satisfy such
obligations, then Tenant may, at such time, or thereafter, so long as Landlord
continues to fail to take action to satisfy its obligations hereunder, but shall
not be obligated to, perform Landlord's obligation and demand from Landlord
repayment of the cost thereof as if the loan hereinabove described had been
made. Landlord's failure to make such payments to Tenant shall entitle Tenant to
offset such amounts against next due rent payments in the manner set forth in
subsection (a).
(c) Tenant's failure to procure the loan hereinabove described shall not
be a default pursuant to this Lease.
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ARTICLE 39
Tenant's Financial Statements
Section 39.01. Throughout the Term whenever requested by a Superior
Mortgagee or by a proposed Superior Mortgagee, provided Landlord executes and
delivers to Tenant a confidentiality agreement, substantially in the form
annexed hereto as Exhibit D, Tenant shall cause to be prepared and timely
delivered, but no more than twice a year, to such Superior Mortgagee or proposed
Superior Mortgagee:
(A) Annual consolidated financial statements (balance sheets and
profit and loss statements) of Tenant, in comparative form certified by
independent certified public accountants and prepared in accordance with
generally accepted accounting principles applied on a basis consistent
with prior periods, and certified by the chief financial officer of
Tenant; and
(2) Such other information regarding the financial condition of
Tenant as may be reasonably requested.
Section 39.02. Each financial statement of Tenant shall be accompanied by
a certificate of its chief financial officer that (a) he has reviewed this Lease
and has no knowledge of any default hereunder or of any condition or event
which, with notice or lapse of time or both, would constitute a default
hereunder (or, if any such default, condition or event shall exist, the nature
and period of existence thereof and the action to be taken by Tenant with
respect thereto), and (b) no material adverse change in the business, condition
(financial or otherwise), operations or prospects of Tenant or its affiliates
has occurred during the period covered by such statement and through the date of
such certification.
Section 39.03. Throughout the Term, Tenant shall on the first day of each
Lease Year deliver to Landlord a certificate of Tenant's chief financial officer
containing the certification required by Section 39.02. In lieu of delivering
such certificate to Landlord, Tenant may at its sole election make available to
Landlord at Landlord's office and at reasonable times, Tenant's audited
financial statements as described in Section 39.01; provided that Landlord
executes a confidentiality agreement substantially in the form attached hereto
as Exhibit "D".
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ARTICLE 40
Building Name
Section 40.01. Tenant shall have the right to designate the name of the
Building and to thereafter change such designation from time to time as may be
reasonable. Tenant hereby consents to the use of such name by Landlord in such
advertising or promotional materials as Landlord determines provided, however,
all such advertising and promotional materials shall be subject to Tenant's
prior approval. In the event that Tenant does not designate a name for the
Building within six (6) months of the execution of this Lease, Tenant shall be
deemed to have initially chosen the name "Gramercy Court".
Section 40.02. Tenant at Tenant's sole cost and expense, shall be entitled
to erect on the facade of the Building identifying signs subject to:
(a) submission of plans and specifications to Landlord which are
reasonably satisfactory to Landlord;
(b) the consent or acknowledgement of Landlord's architect which
will not be unreasonably withheld or delayed that the proposed signs are
in conformity with and complement the architectural integrity of the
facade of the Building;
(c) Tenant's procuring all necessary permits and licenses for the
installation and maintenance of such signs;
(d) The installation by Tenant of the signs shall be done in
accordance with the provisions of Article 8 as if such work constituted a
Structural Alteration.
(e) On the Expiration Date, Tenant shall remove the signs and repair
and restore the facade of the Building if necessary.
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ARTICLE 41
Sanitary Maintenance
Section 41.01. In order to maintain the Demised Premises as a first class
office building, Tenant shall at Tenant's expense and throughout the Term:
(a) retain at the Demised Premises cleaning, carting, exterminating,
window cleaning, janitorial and maintenance personnel sufficient to
maintain the Demised Premises as a first class office building;
(b) keep in full force and effect prepaid maintenance service
contracts for the Building Equipment with contractors or maintenance
personnel reasonably satisfactory to Landlord; and
(c) maintain all public portions of the Demised Premises (including
adjoining streets and sidewalks) clean and free from accumulated dirt,
snow, ice and litter.
Section 41.02 Landlord shall be responsible for painting, pointing,
caulking windows, and cleaning the facade of the building. During the Base Term
Tenant will upon request of Landlord (which request shall include contractor's
receipts) reimburse Landlord for the painting and cleaning expenses incurred
after Lease Year 10, but such reimbursement shall not exceed $200,000.
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ARTICLE 42
Syndication Rights
Section 42.01. Promptly upon request by Landlord, Tenant will execute any
amendments to the Lease and any additional documents provided by Landlord and
deemed necessary by Landlord to facilitate a sale or syndication of all or part
of the Demised Premises, provided such amendment to the Lease or additional
documents will not cause Tenant in its reasonable judgment to incur any
additional financial burden beyond that which is provided herein, except as to
certain Impositions as are specifically provided for below and provided such
amendment or additional document will not in Tenant's reasonable judgment
materially or adversely increase Tenant's obligations or decrease Tenant's
rights hereunder.
Section 42.02. In the event (i) of a proposed transfer or sale of all or a
portion of (A) the Demised Premises or (B) the entity which owns the Demised
Premises, other than as described in Section 10.02 (a), (b), (c), (e) or (f)
("Sale"), and (ii) such Sale closes within two years from the Commencement Date,
Landlord shall give Tenant notice of such Sale within fifteen (15) days after
the related closing by delivering all material documents relating thereto (which
Tenant shall keep confidential in the manner provided in Exhibit "D") Tenant
shall thereafter have twenty (20) days from the giving of such notice to advise
Landlord whether Tenant elects to be bound by the provisions of Section 42.03 as
set forth below.
Tenant's failure to timely give such notice shall be deemed Tenant's
irrevocable determination that Section 42.03 shall be of no force and effect
with respect to such Sale (but will not effect Tenant's right to invoke Section
42.03 with respect to any subsequent Sale during such two year period).
Section 42.03 Landlord shall reimburse Tenant during the balance of the
Base Term (except as herein otherwise provided), within ten (10) days of
Tenant's notification that Tenant has paid that portion of the real estate
taxes, assessments, special assessments, special ad valorum levies or service
charges (excluding interest, late charges and penalties) ("Real Estate Taxes")
relating to the Demised Premises attributable to an increased assessed valuation
resulting directly from such Sale. Such reimbursement ("Initial Landlord
Contribution") shall be determined by multiplying the Real Estate Taxes that
would be due if the Demised Premises were fully assessed to include the increase
valuation attributable to such Sale by the tax rate in effect
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during the fiscal year in which such Sale is first reflected in the assessed
value of the Demised Premises ("Fiscal Year") by a fraction ("Landlord's Rate")
of which the numerator is the difference between the Sale price and $70 million
and the denominator is the Sale price. If the Initial Landlord Contribution
includes any amounts due as special assessments or special charges then the
Initial Landlord Contribution shall be reduced by the applicable portion payable
by Landlord of the special assessment or special charge when the special
assessment or special charge has been fully paid to the taxing authority.
For so long as the assessed valuation of the Demised Premises exceeds that
amount determined by multiplying $70 million by the Equalization Rate in effect
in the Fiscal Year then in the event of an increase in the assessed valuation of
the Demised Premises for any reason other than a Sale during the first two years
subsequent to the Commencement Date, and/or there is an increase in the
applicable tax rate during such period ("Subsequent Event"), the Initial
Landlord Contribution from and after such date shall be adjusted to equal to the
lesser of (x) the previous Initial Landlord's Contribution and (y) the amount
determined by multiplying the product of the Landlord's Rate and the assessed
valuation following the Subsequent Event by the then effective tax rate.
Any payment to be made by Landlord or Tenant hereunder, as the case may
be, shall be made in the proportions provided herein, of the actual Real Estate
Taxes paid, thereby permitting the participation of the paying party in the
related benefit of any applicable deferment which may affect the amount of Real
Estate Taxes due from time to time.
In the event Tenant elects this Section 42.03, Landlord shall at all times
have the right at Landlord's sole cost and expense to institute certiorari or
other appropriate proceedings in an attempt to reduce the assessed valuation of
the Demised Premises. Notwithstanding Article 6 hereof Landlord shall have the
right for each Fiscal Year in which Landlord is required to make the Initial
Landlord Contribution to institute, maintain and settle all certiorari or other
proceedings; provided, however, that Landlord shall allow Tenant to participate
in all such proceedings and Landlord shall not settle any such proceedings
without first receiving Tenant's approval, which will not be unreasonably
withheld or delayed and further provided if there is any dispute with regard to
settlement, the determination shall be submitted to Arbitration. If there is a
reduction in the assessed valuation, as a result of the foregoing, or otherwise,
or the applicable tax rate, which results in Real Estate Taxes in an
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amount less than the Real Estate Taxes due prior to such change in assessed
valuation or tax rate, then the difference, between the prior Real Estate Taxes
and the actual Real Estate Taxes due following the Subsequent Event shall be
subtracted from the Initial Landlord Contribution. If a certiorari or similar
proceeding related to the assessed valuation resulting from a Sale results in a
reduction in Real Estate Taxes below Real Estate Taxes calculated as if the
assessed valuation were $70,000,000 and the Equalization Rate and Tax Rate were
equal to that in effect in the Fiscal Year in which the Initial Landlord
Contribution was made ("Base Amount"), Landlord a) shall have no further
obligation to make Initial Landlord Contributions to Tenant and b) Landlord
shall receive from Tenant that amount determined by subtracting the then
applicable Real Estate Taxes from Base Amount, and, except as hereinafter
provided shall thereafter be paid throughout the Term at the time such amounts
are paid to the appropriate taxing authority.
It is hereby expressly agreed that if there has been a reduction in Real
Estate Taxes, as described in the preceding paragraph, and subsequently as a
result of events or governmental actions, Real Estate Taxes are increased,
Tenant shall nevertheless be required to make the payments to Landlord as set
forth in the preceeding paragraph. Notwithstanding the foregoing, to the extent
due to reassessments of the Demised Premises, the assessed valuation is
thereafter increased to an amount greater than the prior assessment but less
than the assessed valuation resulting from applying the then Equalization Rate
to $70,000,000, the Tenant's obligation to pay Landlord as provided in the
preceding paragraph will be correspondingly reduced. Tenant shall have no
further obligation to make payments to Landlord as herein provided from and
after the time that such assessed valuation equals the assessed valuation
resulting from applying the then Equalization rate to $70,000,000. Any dispute
regarding the apportionment of the related benefits described in this paragraph
shall be resolved by arbitration as provided in the Lease.
All payments made by Tenant to Landlord pursuant to this Article shall
constitute Additional Payments.
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ARTICLE 43
Definitions
Section 42.01 For the purposes of this Lease, the following terms have the
meanings indicated:
(a) "Additional Rent" shall have the meaning as set forth in Article
3 hereof.
(b) "Additional Payment" shall have the meaning as set forth in
Article 3 hereof.
(c) "Alterations" shall have the meaning as set forth in Article 8
hereof.
(d) The term "and/or" when applied to two or more matters or things
shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(e) "Base Term" shall have the meaning as set forth in Article 2
hereof.
(f) "Base Annual Rent" shall have the meaning as set forth in
Article 3 hereof.
(g) "Best" shall have the meaning as set forth in Article 12 hereof.
(h) Purposely omitted.
(i) "Building" shall have the meaning as set forth in Article 1
hereof.
(j) "Brokers" shall have the meaning as set forth in Article 20
hereof.
(k) "Building Equipment" means all machinery, apparatus, equipment,
personal property, fixtures and systems of every kind and nature
whatsoever now or hereafter attached to or used in connection with the
operation or maintenance of the Building, including all electrical,
heating, mechanical, sanitary, sprinkler, utility, power, plumbing,
cleaning, fire prevention, refrigeration, ventilating, air cooling, air
conditioning, elevator and escalator systems, apparatus and equipment and
any and all renewals and replacements of any thereof (this inclusion shall
in no way effect the respective repair and
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maintenance obligations of Landlord and Tenant as set forth in this
Lease); but excluding, however, (i) Tenant's Property, (ii) property of
contractors servicing the Building and (iii) improvements for water, gas,
steam and electricity and other similar equipment owned by any public
utility company or any governmental agency or body.
(l) "Commencement Date" shall have the meaning as set forth in
Article 2 hereof.
(m) "Completion Date" shall have the meaning as set forth in Article
5 hereof.
(n) "Consent" means prior consent and approval and the consent by
either party to any particular action shall not in any way be considered
as relieving the other party from obtaining the express consent to any
subsequent or further action.
(o) "Construction Documents" shall have the meaning set forth in
Exhibit C.
(p) "Date of the Taking" shall have the meaning as set forth in
Article 14 herein.
(q) "Demised Premises" shall have the meaning as set forth in
Article 1 hereof.
(r) "Expiration Date" is 12 midnight on the last day of the Base
Term, or if the Lease be renewed, the "Renewal Term, the option with
respect to which has been exercised by Tenant.
(s) "Force Majeure means any and all causes beyond Landlord's
reasonable control, including delays caused by Tenant, governmental
restriction, regulation or control, labor dispute, accident, mechanical
breakdown, shortages or inability to obtain labor, fuel, steam, water,
electricity or materials, acts of God, enemy action, civil commotion, fire
or other casualty.
(t) "Full Term" shall have the meaning as set forth in Article 2
hereof.
(u) The terms "herein," "hereof" and "hereunder," and words of
similar import, shall be construed to refer to this Lease as a whole, and
not to any particular Article or Section, unless expressly so stated.
(v) "Holdover Expenses" shall have the meaning set forth in Article
5.
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(w) "Impositions" shall have the meaning as set forth in Article 6
hereof.
(x) "Include" and "including" shall be construed as if followed by
the phrase "without being limited to."
(y) Reference to Tenant being "in default hereunder," or words of
like import, shall mean that Tenant is in default in the performance of
one or more of Tenant's obligations hereunder.
(z) "In full force and effect" when used in reference to this Lease
as a condition to the existence or exercise of a right on the part of
Tenant shall be construed in each instance as including the further
condition that at the time in question no default on the part of Tenant
exists, and no event has occurred which has continued to exist for such
period of time (after notice, if any, required by this Lease), as would
entitle Landlord in either such instance to terminate this Lease or to
dispossess Tenant.
(aa) "Initial Certificate of Occupancy" shall have the meaning set
forth in Article 4 hereof.
(bb) "Landlord" means only the owner at the time in question of the
Demised Premises, so that in the event of any transfer or transfers of
title to the Demised Premises or of Landlord's interest in a Lease of the
Demised Premises, the transferor shall be and hereby is relieved and freed
of all obligations of Landlord under this Lease accruing after such
transfer, and it shall be deemed, without further agreement that such
transferee has assumed and agreed to perform and observe all obligations
of Landlord herein during the period it is the holder of Landlord's
interest under this Lease.
(cc) "Latent Defects" shall have the meaning as set forth in Article
5 hereof.
(dd) "Lease" shall mean this indenture of lease together with all
exhibits and documents attached hereto.
(ee) "Lease Year" shall have the meaning as set forth in Article 2
hereof.
(ff) "Lease Year One" shall have the meaning as set forth in Article
2 hereof.
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(gg) "Lease Year Number" shall refer to the number of years which
have elapsed following the first day of the Full Term and prior to the
date of the event to which such reference to "Lease Year Number" is made
herein.
(hh) "Obligations of this Lease" and words of like import, shall
mean the covenants to pay Rent and all of the other terms of this Lease.
Any provision in this Lease that one party or the other or both shall do
or not do or shall cause or permit or not cause or permit a particular
act, condition or circumstance shall be deemed to mean that such party so
covenants or both parties so covenant, as the case may be.
(ii) "the 180th day" shall have the meaning as set forth in Article
7 hereof.
(jj) "Premises" shall have the meaning as set forth in Article 1
hereof.
(kk) "Renewal Lease Year" means a twelve month period of time
occurring within a Renewal Term (e.g. Renewal Lease Year One is the first
year of any Renewal Term).
(ll) "Renewal Lease Year One" means the first Lease Year of each
Renewal Term.
(mm) "Renewal Term" or "Renewal Terms" shall have the same meaning
as set forth in Article 7 hereof.
(nn) "Rent" shall have the meaning as set forth in Article 3 hereof.
(oo) "Restoration" shall have the meaning as set forth in Article 13
hereof.
(pp) "Short Term" shall have the meaning as set forth in Article 2
hereof.
(qq) "Structural" shall have the meaning as set forth in Article 11
hereof.
(rr) "Structural Alterations" shall have the meaning as SCL forth in
Article 8 hereof.
(ss) "Successor Landlord" shall have the meaning as set forth in
Article 27 hereof.
(tt) "Superior Mortgage" shall have the meaning as set forth in
Article 27 hereof.
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(uu) "Superior Mortgagee" shall have the meaning as set forth in
Article 27 hereof.
(vv) "Tenant" means the Tenant herein named or any assignee or other
successor in interest (immediate or remote) of the Tenant herein named,
which at the time in question is the owner of the Tenant's estate and
interest granted by this Lease; but the foregoing provisions of this
subsection shall not be construed to permit any assignment of this Lease
or to relieve the Tenant herein named or any assignee or other successor
in interest (whether immediate or remote) of the Tenant herein named from
the full and prompt payment, performance and observance of the covenants,
obligations and conditions to be performed, paid and observed by Tenant
under this Lease.
(ww) "Tenant's Architect" is Hellmuth, Obata, Kassabaum, P.C. or
such other person designated by Tenant and licensed to practice
architecture in the State of New York.
(xx) "Tenant's Construction Consultant" is Hunter and Partner or
such person designated by Tenant who shall have been engaged in the
construction business in the Borough of Manhattan for at least the
preceding five years. If such person is a partnership or corporation such
person may only act through a general partner or corporate officer.
(yy) "Tenant hereby indemnifies Landlord against liability" and
"Landlord hereby indemnifies Tenant against liability" and words of
similar import shall mean that the indemnifying party hereby agrees to and
hereby does indemnify, hold and save the indemnified party and its agents
(and in each case where Landlord is the indemnified party, the Superior
Mortgagee) and their respective agents, employees, contractors, officers,
directors, shareholders, partners and principals (disclosed or
undisclosed), harmless from and against any and all cost, liability,
claim, damage, fine, penalty and expense, including reasonable attorneys'
fees and disbursements, but the same shall not be construed as
indemnifying any of the foregoing named persons against its or their own
negligence.
(zz) "Tenant's obligations hereunder," and words of like import, and
"Landlord's obligations hereunder," and words of like import, shall mean
the obligations of this Lease which are to be performed or observed by
Tenant, or by Landlord, as the case may be. Reference to "performance" of
either party's obligations and words of like import shall be construed as
"performance and
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103
observance". Tenant's obligations hereunder shall be construed in every
instance as conditions as well as covenants.
(aaa) "Tenant's Property" shall have the meaning as set forth in
Article 9 hereof.
(bbb) "Tenant's Punch List" shall have the meaning as set forth in
Article 5 hereof.
(ccc) "Tenant's Optional Work" shall have the meaning as set forth
in Article 5 hereof.
(ddd) "Term" means Base Term and Renewal Term(s), but only those
Renewal Terms, the option with respect to which has been exercised by
Tenant.
(eee) "Trustee" means an insurance company, bank or trust company
with a principal office in the Borough of Manhattan and having capital in
excess of $250,000,000.
(fff) All words or phrases defined within a Section shall have the
same meaning throughout this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
LANDLORD:
Witness:
/s/ [ILLEGIBLE] /s/ Xxxxx Xxxxxxxx
------------------------ -----------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
-----------------------------
Xxxxxxx Xxxxxxxx
TENANT: Young & Rubicam Inc.
Witness:
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------- ------------------------
-100-
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 12th day of July, 1984, before me personally came , to me
known, who being by me duly sworn, did say that he has an office at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX, that he is of Young & Rubicam Inc., the
corporation described in and which executed the foregoing instrument as
Tenant; that he knows the seal of said corporation; that the seal affixed to
said instrument is such seal; that it was so affixed by order of the board of
directors of said corporation; and that he signed his name thereby by like
order.
/s/ Xxxxx Xxxxxxxx
---------------------------
Notary Public
XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 4803539
Qualified in New York County
Commission Expires March 30, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 12th day of July, 1984, before me personally came Xxxxx
Xxxxxxxx, to me known and known to me to be the individual described in and who,
as Landlord, executed the foregoing instrument and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxxxxxx
---------------------------
Notary Public
XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 4803539
Qualified in New York County
Commission Expires March 30, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 12th day of July, 1984, before me personally came Xxxxxxx
Xxxxxxxx, to me know and known to me to be the individual described in and who,
as Landlord, executed the foregoing instrument and acknowledged to me that he
executed the same.
/s/ Xxxxx Xxxxxxxx
---------------------------
Notary Public
XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 4803539
Qualified in New York County
Commission Expires March 30, 1986
-101-
105
FIRST AMENDMENT TO INDENTURE OF LEASE
THIS AMENDMENT made as of the 15 day of November, 1984 by and
between GRAMERCY COURT ASSOCIATES (hereinafter referred to as "Landlord") and
YOUNG & RUBICAM INC. (hereinafter referred to as "Tenant").
W I T N S S E T H:
WHEREAS, Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, as Landlord, and
Tenant, as tenant, entered into an Indenture of Lease dated July 12, 1984
(hereinafter referred to as "Lease") whereby Landlord let to Tenant the premises
situated at 000 Xxxx Xxxxxx Xxxxx in the City of New York, State of New York
which premises are more particularly described in the Lease; and
WHEREAS, by Assiqnment dated September 24, 1984, Xxxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx assigned all their right, title and interest in the Lease to
Landlord; and
WHEREAS, Landlord and Tenant now desire to amend the Lease as follows:
NOW THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, Landlord and Tenant hereby agree
as follows:
1. Section 2.03 of the Lease is hereby amended to read as follows:
106
"Lease Year One" shall be deemed the first year of the Full Term and shall
commence on the first day of the Full Term and shall end on the last day of that
month determined by subtracting the number of months between the Commencement
Date and the commencement of the Full Term from the following:
(a) fifteen (15) months, if the Commencement Date is on or prior to
October 1, 1985,
(b) fourteen (14) months plus the number of days by which the
Commencement Date precedes November 1, 1985, if the Commencement Date is
subsequent to October 1, 1985 but prior to November 1, 1985,
(c) fourteen (14) months, if the Commencement Date is November 1,
1985 or November 2, 1985,
(d) fourteen (14) months less one half the number of days (rounded
down to the nearest whole day) between the Commencement Date and November 1,
1985, if the Commencement Date occurs after November 2, 1985, but prior to
January 1, 1986.
(e) thirteen (13) months if the Commencement Date occurs on or after
January 1, 1986.
The term "Lease Year" shall refer to each year of the term including Lease
Year One. Each succeeding Lease Year, after Lease Year One, shall run for the
successive twelve month period from the expiration of the preceding Lease Year,
except the last Lease Year shall end on the Expiration Date.
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107
2. The second sentence of Section 5.10 of the Lease is hereby amended to
read as follows:
As used herein 'Holdover Expenses' shall mean one half of those
actual expenses (including reasonable attorney's fees) of Tenant (or
Tenant's subsidiaries) incurred because Tenant (or Tenant's subsidiaries)
held over beyond the expiration of a lease term (expiring on or after
October 31, 1985) above and beyond the expenses had such lease term not
expired, but shall not include incidental damages, loss of income, loss of
business or similar damages.
3. Section 5.11 of the Lease is hereby amended by inserting "$62,500" in
lieu of "$125,000" in the second, fourth, fifth, seventh, thirteenth and
fourteenth lines thereof.
4. Intentionally omitted.
5. Section II D.7 of Exhibit "C" to the Lease is hereby amended by
inserting "October 31, 1984" in lieu of "October 1, 1984" in the first line
thereof.
6. Section II D. 8 of Exhibit "C" to the Lease is hereby amended by
deleting the last sentence thereof in its entirety and replacing it as follows:
"In the event Tenant's Construction Documents are not timely filed with the
Building Department, any resulting delay shall be treated as a "delayed
submission" as such term is defined in paragraph II E(2) hereof."
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108
7. Exhibit "C" to the Lease is hereby amended by adding the following
Section II D.15:
15. Submission of Tenant's Revised Construction Documents
On or before November 16, 1984, Tenant shall furnish to Landlord
Tenant's Construction Documents and Tenant's Interior Decoration
Documents with all architectural and engineering details of such
revisions as may be required to incorporate change orders mutually
agreed upon by Landlord and Tenant prior to November 16, 1984 which
Tenant requires to reduce the Budget Estimate submitted by Landlord
to Tenant by letter dated October 11, 1984 and which documents shall
be stamped "For Construction."
8. Section II E. 2a. of Exhibit "C" to the Lease is hereby amended to read
as follows:
In the event all or a portion of Tenant's Construction Documents or
resubmissions of Construction Documents are not submitted in
completed form by the respective dates ("Due Dates") set forth in
Section II D hereof (hereinafter referred to as "delayed
submissions"), the date of Substantial Completion of the floor(s)
relating to such late
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109
construction documents shall be determined by subtracting the
number of days of delay in Substantial Completion resulting
from such delayed submissions, from the date of actual
completion of the related floor(s), provided, however, in no
event shall the date of Substantial Completion be deemed to
occur prior to October 1, 1985 for the purposes of this
paragraph.
9. Sections II E 2b, II E 2c, II E 2d and II E 2f of Exhibit "C" to the
Lease are hereby deleted.
10. Section II E 2e of Exhibit "C" to the Lease is hereby renumbered
Section II E 2b.
11. Section II E. of Exhibit "C" to the Lease is amended by adding thereto
the following:
6. Emergency Meetings to Resolve Delays.
If Tenant, pursuant to any provision of this Letter, has not
responded to requests, submissions or demands by Landlord within the
specified response time, Landlord may request a meeting with Xxxx
Xxxxxx, Esq., or an Executive Officer of Tenant of equivalent
authority of Tenant, and Xx. Xxxxxx or such other designated officer
shall attend such meeting. Such meeting shall occur within two (2)
calendar days of
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110
notice by Landlord to Tenant and any delay in the occurence of such
meeting beyond such period shall be considered a delaying item.
12. The parties hereto acknowledge that this amendment is subject to the
acceptance and approval by Manufacturers Hanover Trust Company which approval
Landlord agrees to use its best efforts to obtain as promptly as practical.
13. Except as hereby expressly amended and modified, the terms and
provisions of the Lease shall remain in full force and effect and are hereby
ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the date first above written.
GRAMERCY COURT ASSOCIATES
By:
-------------------------
Xxxxx Xxxxxxxx
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Xxxxxxx Xxxxxxxx
YOUNG & RUBICAM INC.
By: /s/ [ILLEGIBLE]
-------------------------
ACCEPTED AND APPROVED:
MANUFACTURERS HANOVER TRUST COMPANY
By: /s/ [[ILLEGIBLE]]
----------------------------
-6-
111
AGREEMENT AND SECOND AMENDMENT TO INDENTURE OF LEASE
THIS AGREEMENT AND SECOND AMENDMENT TO INDENTURE OF LEASE made as of the
31st day of July, 1985 by and between GRAMERCY COURT ASSOCIATES (hereinafter
referred to as "Landlord") and YOUNG & RUBICAM INC. (hereinafter referred to as
"Tenant").
W I T N E S S E T H:
WHEREAS, Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, as landlord, and Tenant, as
tenant, entered into an Indenture of Lease (the "Indenture of Lease") dated July
12, 1984 whereby the premises situated at 000 Xxxx Xxxxxx Xxxxx in the City of
New York, State of New York, which premises are more particularly described in
the Indenture of Lease (the "Premises"), were let to Tenant;
WHEREAS, by Assignment dated September 24, 1984, Xxxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx assigned all of their right, title and interest in the
Indenture of Lease to Landlord;
WHEREAS, by Amendment dated November 15, 1984 between Landlord and Tenant,
the Indenture of Lease was amended (the Indenture of Lease as so amended being
hereinafter to as the "Lease");
WHEREAS, Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx have separately agreed with
Tenant pursuant to a letter agreement dated July 12, 1984 (the "July Letter
Agreement") as to certain
112
matters including the obligations of Messrs. Xxxxxxxx and Xxxxxxxx to pay
$3,500,000 to Tenant upon certain conditions (the "$3,500,000 Payment") and, in
connection with such obligation to make the $3,500,000 Payment, to take out a
Letter of Credit in the amount of $3,500,000 (the "Letter of Credit");
WHEREAS, Landlord has agreed with Tenant pursuant to a Letter Agreement
dated November 15, 1984 (the "November Letter Agreement") as to certain
additional matters pertaining to the Lease and the Premises;
WHEREAS, by letter dated April 30, 1985 (the "Commitment Letter")
Connecticut General Life Insurance Company (the "Lender") has agreed to lend to
the Landlord the sum of $59,000,000 (the "Loan") upon the condition that certain
modifications be made in the Lease and upon such other terms and conditions as
are set forth in the Commitment Letter;
NOW THEREFORE, in order to induce the Lender to make the Loan, which the
parties agree is in their mutual interests, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. $3,500,000 Payment. Tenant acknowledges that $3,500,000 Payment is
solely the personal obligation of Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx which
obligation as set forth in the July Letter Agreement is hereby ratified and
affirmed. In the event Tenant fails to receive all or any portion of the
113
$3,500,000 Payment when due, Tenant shall nonetheless continue to be obligated
to make all payments under the Lease to the full extent set forth therein and
Tenant (i) shall not assert any breach or default in the $3,500,000 Payment as a
defense to its failure to perform any of its obligations (including, but not
limited to, its obligation to pay rent) under the Lease, and (ii) shall not make
any claims arising out of such $3,500,000 Payment against the Lender (in the
Lender's capacity either as lender or as owner of the Premises by acceptance of
a deed in lieu of foreclosure or otherwise). Nothing set forth herein shall
preclude Tenant from drawing upon the Letter of Credit in the event all or any
portion of the $3,500,000 Payment is not paid when due.
2. The Lease is hereby amended as follows:
2.1 Subordination. Paragraph (b) of Section 27.01 of the Lease is
hereby amended by deleting the phrase "So long as Tenant has complied with all
the terms and provisions of this Lease and is not in default under any terms,
covenants or conditions of this Lease" and substituting therefor the phrase "So
long as this Lease has not been terminated".
2.2 Assignment and Subletting. Section 26.04 of the Lease is hereby
amended by adding the following sentence at the end thereof:
"Notwithstanding anything to the contrary set forth in this Section
26.04, there shall not be any assignment or sublease of all or any
portion of the Demised Premises from Tenant to Landlord without the
prior
114
written consent of any holder of any Superior Mortgage, provided,
however, that the failure or refusal of the Superior Mortgagee to
consent within the same time period that Landlord has to respond to
Tenant shall be deemed a rejection of such request. If the Superior
Mortgagee refuses the request (whether affirmatively or by inaction)
Landlord shall be deemed to have forever waived its rights under
this Section.
2.3 Tenant's Right of First Offer. Section 10.02 is hereby
amended to add an additional sub-paragraph (g) at the end thereof to read as
follows:
"(g) A sale or transfer to an entity which is controlled by,
controls, or is under common control with the seller or transferor
if the sale or transfer takes place after foreclosure of a Superior
Mortgage or acceptance of a deed in lieu of such foreclosure and if
the seller or transferor was the holder of the Superior Mortgage or
is an entity which is controlled by, controls or is under common
control with such holder."
2.4 Insurance. Section 12.03 of the Lease is hereby amended by
deleting the reference to "`Best' ratings of not less than A" and substituting a
reference to "`Best' ratings of not less than A+: XV".
3. Other Lease Provisions. The Lease except as expressly amended
hereby, shall remain in full force and effect as on the date hereof.
4. Termination of Tenancy of C.U. Graphics Centers, Inc. Landlord
and Tenant acknowledge that the tenancy of C.U. Graphics Centers, Inc. and the
lease dated December 20, 1978 between LaSalle Industries, Inc. and C.U. Graphics
Centers, Inc., which was assigned to Landlord by LaSalle Industries, Inc. by
Assignment dated September 25, 1984 have both been terminated and, accordingly,
paragraph IV of the November Letter Agreement is of no further force and effect.
115
5. Acceptance of the Construction Lender and the Lender. The parties
do agree to and acknowledge this Agreement and Second Amendment of Indenture of
Lease subject to the acceptance and approval of Manufacturers Hanover Trust
Company, the construction lender, and the Lender, which approvals Landlord
agrees to use its best efforts to obtain as promptly as practicable.
IN WITNESS WHEREOF, the parties hereto have set their hands and
seals as of the date first above written.
GRAMERCY COURT ASSOCIATES
By: /s/ Xxxxx Xxxxxxxx
-------------------------
Xxxxx Xxxxxxxx
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Xxxxxxx Xxxxxxxx
YOUNG & RUBICAM INC.
By: /s/ [ILLEGIBLE]
-------------------------
ACCEPTED AND APPROVED:
MANUFACTURERS HANOVER TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxx, AVP Date: July 31, 1985
----------------------------- -------------------
116
CONNECTICUT GENERAL LIFE INSURANCE COMPANY.
By: /s/ [ILLEGIBLE] Date: 7/31/85
----------------------------- -------------------
We affirm our obligation to
Young & Rubicam Inc. pursuant
to Section 1 hereof
/s/ Xxxxx Xxxxxxxx
-------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
------------------------
Xxxxxxx Xxxxxxxx
0063C
117
YOUNG & RUBICAM INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
December 12, 1985
Messrs. Xxxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx
Gramercy Court Associates
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Reference is made to (i) that certain Indenture of Lease (the "Indenture
of Lease") dated July 12, 1984 between Xxxxxxx Xxxxxxxx ("Xxxxxxxx") and Xxxxx
Xxxxxxxx ("Xxxxxxxx") as Landlord and Young & Rubicam, Inc. ("Young & Rubicam")
as Tenant which Lease was assigned by Xxxxxxxx and Xxxxxxxx to Gramercy Court
Associates ("GCA") by assignment dated September 24, 1984, and amended by the
First Amendment of Lease dated November 15, 1984 (the "First Amendment") and the
Agreement and Second Amendment of Lease dated July 31, 1985 (the "Second
Amendment") and (ii) a letter agreement dated July 12, 1984 between Xxxxxxxx,
Xxxxxxxx and Xxxxx & Rubicam (the "July Letter Agreement") and a letter
agreement between GCA and Young & Rubicam dated November 15, 1984 (the "November
Letter Agreement"). The Indenture of Lease as amended by the First Amendment and
Second Amendment is hereinafter referred to as the Lease.
This document may be referred to as the THIRD AMENDMENT TO THE INDENTURE
OF LEASE.
This will confirm the agreement between Young & Rubicam and GCA, Xxxxxxxx
and Xxxxxxxx as follows:
1. Capitalized terms defined in the Lease and not otherwise defined herein
shall have the same meanings when used herein.
2. Young & Rubicam and GCA agree to amend and the Lease is hereby amended
as follows:
(a) Section 2.01 of the Lease (as heretofore amended) is hereby
amended to read in its entirety as follows:
"Section 2.01. The "Full Term" of the Lease shall commence on December 12,
1985 and shall end on midnight on January 22, 2006, or on such earlier
date
118
upon which the term of this Lease shall expire or be cancelled or
terminated pursuant to any of the conditions or covenants of this Lease or
pursuant to law. There shall be no "Short Term" of this Lease and the
"Base Term" of this Lease shall mean the Full Term."
(b) Section 2.02 of the Lease is hereby amended by adding the
following sentence at the end of such Section.
"The parties hereto acknowledge that the "Commencment Date" is December
12, 1985."
(c) The first sentence of Section 2.03 of the Lease is hereby
deleted and the following sentence substituted therefor.
"Lease Year One" shall commence on December 12, 1985 and end on January
22, 1987, unless this Lease shall otherwise expire or be cancelled or
terminated in accordance with the terms hereof."
(d) Paragraph (a) of Section 3.01 of the Lease (as heretofore
amended) is hereof amended to read in its entirety as follows:
(a) Base annual rent, as hereinafter set forth ("Base Annual Rent") in
advance on the first day of each and every calendar month throughout the
Term, except that the Base Annual Rent payable for the partial calendar
month at the commencement of the Full Term shall be payable on the
Commencement Date. The Base Annual Rent for Lease Year One and Lease Year
Two (and the first 9 days of Lease Year Three which fall within January
1988) are as follows:
December 1985 $376,344.08
January 1986 Free
February 1986 $427,083.32
March 1986 $291,666.67
April 1986 $291,666.67
May 1986 $291,666.67
June 1986 $291 666.67
July 1986 $291,666.67
August 1986 $291,666.67
September 1986 $291,666.67
October 1986 $291,666.67
November 1986 $291,666.67
December 1986 $291,666.67
January 1987 $297,594.07
February 1987 $312,083.34
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119
March 1987 $603,750.00
April 1987 $603,750.00
May 1987 $603,750.00
June 1987 $603,750.00
July 1987 $603,750.00
August 1987 $603,750.00
September 1987 $603,750.00
October 1987 $603,750.00
November 1987 $603,750.00
December 1987 $603,750.00
January 1988 $609,884.86
The Base Annual Rent for Lease Year Three (which commences on January 23,
1988 and ends on January 22, 1989) shall be Seven Million Four Hundred
Ninety Eight Thousand Five Hundred Seventy Five Dollars ($7,498,575.00).
Thereafter, for each successive Lease Year of the Full Term, the Base
Annual Rent shall be increased by three and one-half (3.5%) percent over
the preceding Lease Year's Base Annual Rent (i.e., the Base Annual Rent
for Lease Year Four shall be determined by multiplying $7,498,575 by
1.035; the product shall be the multiplicand In determining the Base
Annual Rent for Lease Year Five). The Base Annual Rent payable for each
full calendar month within each Lease Year commencing with Lease Year
Three shall be one-twelfth of the Base Annual Rent for such Lease Year;
and the Base Annual Rent for each month of January within the Full Term
shall be the sum of (a) 22/31 of one-twelfth of the Base Annual Rent of
the Lease Year ending and (b) 9/31 of one-twelfth of the Base Annual Rent
of the Lease Year commencing."
(e) Section 3.01 of the Lease, as amended by the preceding paragraph
(d) is further amended by adding at the end thereof a new paragraph (c), as
follows:
(c) In the event Tenant defaults under any provision of this Lease and
such default is not cured after notice, if required, and the lapse of
applicable grace periods, the Base Annual Rent payable for the month of
January 1986 through December 1986 shall be increased to $583,333,33, the
Base Annual Rent payable for the month of January 1987 shall be increased
to $589,260.74 and the Base Annual Rent payable for the month of February
1987 shall be increased to $603,750."
(f) Section 14.02 of the Lease is hereby amended by deleting the
paranthetical clause "(but limited to interest related to one month's payment)".
Tenant hereby acknowledges
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120
that it is familiar with the interest accrual provision of the five year
mortgage Loan (with an optional five-year extension) which Connecticut General
Life Insurance Co. is making to Landlord.
3. The Second Amendment is hereby amended by deleting Section 1
thereof.
4. The July Letter Agreement is hereby superseded and shall be void
and of no further force and effect.
5. The November Letter Agreement is hereby amended by deleting
Article II thereof.
6. Except as expressly amended hereby the Lease and the November
Letter Agreement shall remain in full force and effect.
7. Young & Rubicam hereby consents to the purchase of a 49.9%
partnership interest in GCA by Gramrock Associates a New York Limited
Partnership, and confirms that such purchase and subsequent transfers between
the partners of GCA will not give rise to Tenant's right of first offer under
Article X of the Lease; so long as the transfer is between Xxxxx X. Xxxxxxxx and
Xxxxxxx Xxxxxxxx (or their permitted assigns pursuant to Article X) and Gramrock
Associates, so long as the general partners and substantially all of its limited
partners are partners of Lazard Freres & Co. or members of their immediate
families, or an entity similarly controlled by or under common control with
Lazard Freres & Co.
8. This letter agreement shall be binding upon the successor and
assigns of the parties hereto.
Please indicate your agreement to and acceptance of the provisions
hereof by signing this letter agreement in the space provided below. This letter
agreement shall not be effective until approved by Manufacturers Hanover Trust
Company and Connecticut General Life Insurance Company and shall be void and of
no further force and effect if not so accepted and approved within 60 days from
the date hereof.
Very truly yours
YOUNG & RUBICAM INC.
By: [[ILLEGIBLE]]
-----------------------
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121
Agreed and Accepted:
GRAMERCY COURT ASSOCIATES
By: /s/ [[ILLEGIBLE]]
-------------------------
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------
XXXXXXX XXXXXXXX
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
XXXXX X. XXXXXXXX
Approved:
MANUFACTURERS HANOVER TRUST COMPANY Date: 12/17/89
---------------
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Vice President
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY Date:
---------------
By CIGNA Capital Advisors, Inc.
By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------
0000X
-0-
000
XXXXX XX XXX XXXX )
)ss.:
COUNTY OF NEW YORK )
On this 12 day of December, 1985, before me personally came Xxxxx
Xxxxxxxx and Xxxxxxx Xxxxxxxx, to me known, and known to me to be the general
partners in Gramercy Court Associates, the firm described in and which executed
the foregoing instrument, and Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx acknowledge
that they executed the foregoing instrument for and on behalf of such firm.
/s/ [ILLEGIBLE]
----------------------
NOTARY PUBLIC
No. 4514918
Qualified NY County
Term Expires 3/30/87
-7-
000
XXXXX XX XXX XXXX )
)ss.:
COUNTY OF NEW YORK )
On the 12 day of December, 1985, before me personally came Xxxxxxx
Xxxxxxxx and Xxxxx Xxxxxxxx, to me known to be the individuals described in and
who executed the foregoing instrument, and acknowledged that they executed the
same.
/s/ [ILLEGIBLE]
----------------------
NOTARY PUBLIC
No. 4514918
Qualified NY County
Term Expires 3/30/87
-8-
000
XXXXX XX XXX XXXX )
)ss.:
COUNTY OF NEW YORK )
On this 17 day of December, 1985, before me personally came Xxxxx
Xxxxxxx, to me known, and known to me to be an Assistant Vice President of
Manufacturers Hanover Trust Company, the corporation described in and which
executed the foregoing instrument, and said Assistant Vice President
acknowledges that she executed the foregoing instrument by order of the board of
directors of said corporation.
/s/ Xxxxxx Xxxxxx
----------------------
NOTARY PUBLIC
Xxxxxx Xxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in Nassau County
Commission Expires March 30, 0000
-0-
000
XXXXX XX Xxxxxxxxxxx )
) SS.: Bloomfield
COUNTY OF Hartford )
On this 24th day of December, 1985 before me personally came Xxxxxx
X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he resides at Hartford County, that he is a Vice President of CIGNA CAPITAL
ADVISERS, INC., the corporation described in and which executed the foregoing
instrument on behalf of CONNECTICUT GENERAL LIFE INSURANCE COMPANY, and that he
signed his name thereto by order of the Board of Directors of said corporation.
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Notary Pubic
Xxxxxxx X. Xxxxxxxx
My commission expires 3/31/90
[SEAL]
126
Young & Rubicam Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
November 12, 0000
Xxxxxxxx Xxxxx Associates
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Reference is made to (i) that certain indenture of lease (the
"Indenture of Lease") dated July 12, 1984 between Xxxxxxx Xxxxxxxx ("Xxxxxxxx")
and Xxxxx Xxxxxxxx ("Xxxxxxxx") as Landlord and Young & Rubicam Inc. ("Young &
Rubicam") as Tenant which lease was assigned by Xxxxxxxx and Xxxxxxxx to
Gramercy Court Associates ("GCA") by assignment dated September 24, 1984, and
amended by the first amendment of lease dated November 15, 1984 ("the first
amendment") and the agreement and second amendment of lease dated July 31, 1985
("the second amendment") and a third amendment of lease dated December 12, 1985
("the third amendment"), (ii) a letter agreement dated July 12, 1984 between
Xxxxxxxx, Xxxxxxxx and Xxxxx & Rubicam (the "July letter agreement") and a
letter agreement between GCA and Young & Rubicam dated November 15, 1984 ("the
November letter agree-
000
Xxxxxxxx Xxxxx Associates
November 12, 1987
Page 2
ment") and iii) a letter agreement dated December 12, 1985 relating to
construction disputes ("the Survival Letter"). All of the above are referred to
collectively as "the Lease".
This document may be referred to as the Fourth Amendment to the
Indenture of Lease.
This will confirm the agreement between Young & Rubicam and GCA as
follows:
1. Capitalized terms defined in the Lease and not otherwise defined
herein shall have the same meanings when used herein.
2. Young & Rubicam and GCA agree to amend the Lease and the Lease is
hereby amended as follows:
2.1 Section 1.02(c) is hereby amended by adding the following at the
end thereof:
"Tenant hereby waives and surrenders any right it may have
under the zoning resolution of the City of New York and any
applicable statutes to consent to the mortgaging or sale of
the development rights reserved by Landlord hereunder;
provided, however, that nothing contained herein shall be
deemed Tenant's acquiescence to the construction
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of any buildings or improvements on the Demised Premises other
than as set forth in this Lease."
2.2 Section 10.02(b) is hereby deleted and replaced as follows:
"(b) is negotiating in good faith the delivery of a deed
to a Superior Mortgagee, or the designee of a Superior
Mortgagee, which is an entity controlled by, which controls,
or which is under common control with, the Superior Mortgagee,
in lieu of foreclosure proceedings."
2.3 A new section 10.05 is added as follows:
"10.05. In the event that Tenant acquires the Demised Premises
pursuant to its exercise of its rights pursuant to Section
10.01 or otherwise, this Lease shall not be merged with the
fee title to the Demised Premises and shall continue in full
force and effect unless the Superior Mortgagee consents to
such termination."
2.4 A new Section 10.06 is added as follows:
"10.06. In the event that Tenant exercises its rights pursuant
to Section 10.01 to acquire the
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Demised Premises but does not close the purchase because
Landlord does not deliver title as required by the contract of
sale, such failure by the Landlord to deliver title shall not
be an event of default under this Lease."
2.5 A new Section 10.07 is hereby added as follows:
"10.07. As used in this Article 10 the term "control"
(including the terms "controlling," "controlled by" and "under
common control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of a corporation, partnership,
individual or other entity, whether through the ownership of
voting securities, by contract, or otherwise."
2.6 Section 13.04 is amended by inserting after the sixth sentence
thereof the following sentences and deleting the seventh sentence:
"In the event that Landlord has elected not to Restore and
Tenant has elected to have Landlord Restore then in such event
Landlord shall deliver to Tenant its estimate of the
approximate comple-
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tion date of such Restoration within 45 days of Tenant's
delivery of its election to have Landlord restore. Upon its
receipt of Landlord's estimate Tenant shall have ten (10) days
to elect to cancel this Lease. If Tenant does not
affirmatively and timely elect to cancel within such ten (10)
day period Tenant shall be deemed to have waived its right to
cancel and Landlord must Substantially Complete such
Restoration within six (6) months following Landlord's
estimated date of completion of Restoration. In the event
Landlord fails to Substantially Complete the Restoration of
the Demised Premises by the expiration of the applicable
period after the approximate date of completion as set forth
in the sixth or ninth sentences of this Section, as the case
may be, (plus an additional three (3) months if the delay is
caused by Force Majeure), Tenant may thereafter upon thirty
(30) days notice elect to cancel this Lease, but if the
Demised Premises are Substantially Complete at the expiration
of such thirty (30) day period, this Lease shall continue
until the end of the Term."
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2.7 Section 13.04 is further amended by inserting the following
phrase:
", or be required to Restore,"
between the words "Restore" and "Landlord" in the first sentence of the second
paragraph.
2.8 Section 13.06 of the lease is hereby amended by changing
paragraph (a) thereof to read as follows:
"(a). Landlord may elect either to Restore the Demised
Premises or to cancel this Lease on at least thirty (30) days'
notice, given within sixty (60) days after such damage.
Landlord's failure to send notice of its election either to
Restore or not to Restore shall be deemed Landlord's election
not to Restore. If Landlord elects so to cancel this Lease,
this Lease and any and all renewal rights hereunder shall come
to an end on the date specified in such notice and Landlord
further agrees that it shall not for six months from the
casualty relet the Premises, provided, however, Tenant may
within fifteen (15) days of such notice of cancellation from
Landlord so long as it simultaneously exercises the next
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available renewal option as set forth in Article 7 hereof,
notify Landlord that it elects to have Landlord Restore the
premises, in which event Landlord shall deliver the good faith
estimate of time needed to Restore as provided in the
penultimate paragraph of this Section 13.06; and"
2.9 Section 13.06 is further amended by deleting the last paragraph
and replacing it with the two paragraphs following:
"If Landlord elects to Restore, as provided in
paragraph (a) above, Landlord shall simultaneously with such
election give Tenant Landlord's good faith estimate of the
time needed to Restore. If Tenant has elected to have
Landlord Restore after Landlord has given its election to
cancel then Landlord shall give Tenant Landlord's good faith
estimate of the time needed to Restore within forty-five
(45) days of the receipt of Tenant's notice. If, in either
case, Landlord's estimate of the time needed to Restore
indicates that such Restoration will exceed ninety (90) days,
Tenant may upon ten (10)
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days notice elect to cancel this Lease in the manner and with
the effect described in subsection (b) hereof. If Landlord
elects to Restore, Landlord must Substantially Complete such
Restoration within two (2) months following Landlord's
estimated date of completion of Restoration. In the event
that Landlord has elected not to Restore and Tenant has
elected to have Landlord Restore then in such event Landlord
must Substantially Complete such Restoration within six (6)
months following Landlord's estimated date of completion of
Restoration. In the event Landlord fails to Substantially
Complete the Restoration of the Demised Premises by the
expiration of the applicable period after the approximate date
of completion as provided in the preceding two sentences (plus
an additional three (3) months if the delay is caused by Force
Majeure), Tenant may thereafter upon thirty (30) days notice
elect to cancel this Lease, in the manner and with the effect
described in subsection (b) hereof, and, if the Demised
Premises are not Substantially Complete at the expiration of
such thirty (30) day period, this Lease shall
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be cancelled with the same force and effect as if the date of
such expiration was set forth as the natural expiration of the
Lease (including, if applicable, any Renewal Term).
"Should Landlord elect to Restore, or be required to
Restore, Landlord shall Restore substantially in accordance
with the procedures and specifications set forth in Exhibit C
and monies shall be released to Landlord in the manner set
forth in Section 13.03. Substantial Completion shall be
determined substantially in the manner set forth in Article
5."
2.10 Section 2(e) of the Third Amendment of Indenture of Lease dated
December 12, 1985 is hereby deleted in its entirety and is of no further force
and effect.
3. This amendment is subject to the consent of Metropolitan Life
Insurance Company. If such consent is not given within thirty (30) days of the
date hereof this Fourth Amendment shall be null void and of no force and effect.
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4. Except as expressly set forth herein the Lease is and shall
continue to remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto set their hands and seals
this 12 day of November, 1987.
Young & Rubicam Inc.
By /s/ [[ILLEGIBLE]]
------------------------
Gramercy Court Associates
By /s/ [[ILLEGIBLE]]
------------------------
/s/ [[ILLEGIBLE]]
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We hereby consent to this
Fourth Amendment this 1st day
of December,1987.
Metropolitan Life Insurance Company
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Assistant Vice President
