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AMENDED AND RESTATED LEASE
Dated as of March 27, 0000,
Xxxxxxx
XXXXX XXXXXX BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee,
Lessor
and
XXXXX XXXXXX INC.,
SALOMON BROTHERS INC,
TRAVELERS GROUP INC.,
MUTUAL MANAGEMENT CORP.,
XXXXX XXXXXX CAPITAL SERVICES INC.,
XXXXX XXXXXX COMMERCIAL CORP.,
XXXXX XXXXXX FUTURES MANAGEMENT INC.
and
XXXXX XXXXXX GLOBAL CAPITAL MANAGEMENT, INC.,
as tenants in common,
Lessee
THIS LEASE HAS BEEN MANUALLY EXECUTED IN COUNTERPARTS NUMBERED CONSECUTIVELY
FROM 1 TO 35. TO THE EXTENT, IF ANY, THAT THIS LEASE CONSTITUTES CHATTEL PAPER
(AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY
APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS LEASE MAY BE CREATED
THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART OF THIS LEASE OTHER THAN
COUNTERPART NO. 1.
This is Counterpart No. ____
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TABLE OF CONTENTS
Page
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1. Lease of Property; Title and Condition...................................................................1
2. Use; Quiet Enjoyment; Hazardous Materials................................................................2
3. Term.....................................................................................................3
4. Rent.....................................................................................................3
5. Net Lease; Non-Terminability.............................................................................4
6. Taxes and Assessments; Compliance with Law; Certain Agreements...........................................5
7. Matters of Title.........................................................................................5
8. Certain Zoning Matters...................................................................................6
9. Maintenance and Repair...................................................................................6
10. Lessee Alterations; Removal..............................................................................7
11. Lessee's Right to Contest Property Taxes.................................................................7
12. Condemnation and Casualty................................................................................8
13. Effect of Termination Notice............................................................................10
14. Lessee Purchase Option..................................................................................10
15. Procedure Upon Purchase.................................................................................11
16. Insurance...............................................................................................11
17. Subletting and Non-Disturbance; No Mortgage of Estate; Assignment.......................................13
18. Permitted Contests......................................................................................14
19. Default Provisions......................................................................................15
20. Additional Rights.......................................................................................17
21. Notices, Demands, and Other Instruments.................................................................18
22. No Default Certificate..................................................................................18
23. Surrender...............................................................................................18
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24. Miscellaneous...........................................................................................19
25. Headings and Table of Contents..........................................................................20
26. Lessor's Right to Cure Lessee's Default.................................................................20
27. Expiration of the Lease.................................................................................20
28. Subordination...........................................................................................21
29. Waiver of Trial by Jury.................................................................................22
30. Jurisdiction............................................................................................22
31. No Merger of Title......................................................................................22
32. Further Assurances......................................................................................22
33. Schedules; Exhibits.....................................................................................22
34. Tenants in Common.......................................................................................22
SCHEDULE A Description of the Parcel
SCHEDULE B Rent Schedule
SCHEDULE C Interests of Tenants in Common
Exhibit A Form of Memorandum of Lease
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AMENDED AND RESTATED LEASE dated as of March 27, 1998 (this
"Lease"), between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual capacity but solely in its capacity as
Trustee of the 1993 Xxxxx Xxxxxx Office Building Trust under that certain
unrecorded Amended and Restated Declaration of Trust dated as of December 30,
1994 (as amended on March 27, 1998, the "Declaration") (the "Lessor"), having
its Corporate Trust Office at x/x Xxxxx Xxxxxx Xxxx and Trust Company, X.X. Xxx
000, Xxxxxx, Xxxxxxxxxxxxx 00000, and XXXXX XXXXXX INC., a Delaware corporation,
SALOMON BROTHERS INC, a Delaware corporation, MUTUAL MANAGEMENT CORP. (formerly
Xxxxx Xxxxxx Mutual Funds Management Inc., which was successor by merger to
Mutual Management Corp.), a New York Corporation, XXXXX XXXXXX CAPITAL SERVICES
INC., a Delaware corporation, XXXXX XXXXXX COMMERCIAL CORP., a Delaware
corporation, XXXXX XXXXXX FUTURES MANAGEMENT INC., a Delaware corporation, XXXXX
XXXXXX GLOBAL CAPITAL MANAGEMENT, Inc., a Delaware corporation, and TRAVELERS
GROUP INC. (formerly The Travelers Inc.), a Delaware Corporation, as tenants in
common (collectively, the "Lessee").
Preliminary Statement
The Lessee and Lessor entered into that certain Lease dated
July 30, 1993 (the "Original Lease");
The Lessee and Lessor entered into that certain Amended and
Restated Lease dated December 30, 1994 (the "Amended and Restated Lease");
The Company desires, among other things to refinance the
Instruments and acquire funding to complete construction of the Modifications
and the parties to the Participation Agreement have agreed to such refinancing
and additional construction;
In connection with such refinancing the parties hereto desire
to amend and restate the Amended and Restated Lease in its entirety to provide,
among other things, for an extended lease term;
Lessor wishes to lease the Property to Lessee and Lessee
wishes to lease the same from Lessor. Lessor and Lessee intend that this Lease
be treated, for accounting purposes, as an operating lease. Capitalized terms
used herein and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Amended and Restated Lease dated as of December
30, 1994 by and among the Lessor, the Lessee and the financial institutions
named therein, as the same may be amended, modified or supplemented from time to
time (the "Participation Agreement").
NOW, THEREFORE, the parties do hereby agree as follows:
1. Lease of Property; Title and Condition.
(a) In consideration of the rents and covenants herein stipulated to be
paid and performed by the Lessee and upon the terms and conditions herein
specified, the Lessor hereby leases the Property to the Lessee and the Lessee
hereby leases the Property from the Lessor.
(b) The Property is leased to the Lessee hereunder subject to (a) all
applicable Legal Requirements and all Insurance Requirements now or hereafter in
effect; and (b) all encumbrances now or hereafter affecting the Property. The
Lessee has examined the Property and title thereto (as well as Lessor's interest
therein) and has found the same satisfactory for all purposes of this Lease.
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(c) THE LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED,
WITH RESPECT TO THE PROPERTY, THE IMPROVEMENTS OR ANY FIXTURE OR OTHER ITEM
CONSTITUTING A PORTION THEREOF, OR THE LOCATION, USE, DESCRIPTION, DESIGN,
MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, CONDITION, OR
DURABILITY THEREOF OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN,
OR AS TO THE LESSOR'S TITLE THERETO OR OWNERSHIP THEREOF OR OTHERWISE, IT BEING
AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY THE LESSEE. IN THE
EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE PROPERTY, THE
IMPROVEMENTS OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF,
WHETHER PATENT OR LATENT, THE LESSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY
WITH RESPECT THERETO. THE PROVISIONS OF THIS PARAGRAPH 1(c) HAVE BEEN NEGOTIATED
AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, BY THE LESSOR WITH RESPECT TO THE PROPERTY, THE
IMPROVEMENTS OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF,
WHETHER ARISING PURSUANT TO THE UCC OR ANY OTHER LAW, NOW OR HEREAFTER IN
EFFECT.
2. Use; Quiet Enjoyment; Hazardous Materials.
(a) The Lessee may use the Property for any lawful purpose, provided
that the use of the Property shall comply with all material Legal Requirements.
(b) Subject to paragraph 28 hereof, the Lessor covenants that, unless a
Default, Event of Termination, or an Event of Default has occurred and is
continuing, it will not, and will not permit any party claiming by or under the
Lessor to, interfere with the peaceful and quiet possession and enjoyment of the
Property by the Lessee; provided, however, that the Lessor, the Independent
Engineer, the Managing Agents, the Environmental Consultant and their
successors, assigns, representatives and agents (the "Lessor Group"), at
Lessor's sole cost and expense, may, upon reasonable notice to the Lessee
(unless a Default, Event of Termination or an Event of Default has occurred, in
which case, such entrance and examination shall be at Lessee's sole cost and
expense and no such notice shall be necessary), enter upon the Property and
examine the Property and the Lessee's books and records relating to the Property
and its operation as it may require at reasonable times and upon reasonable
notice.
(c) Any failure by the Lessor or any member of the Lessor Group to
comply with the foregoing provisions of this paragraph 2 or any other provision
of this Lease shall not give the Lessee any right to cancel or terminate this
Lease, or to xxxxx, reduce or make deduction from or offset against any Basic
Rent, Additional Rent or other sum payable under this Lease, or to fail to
perform or observe any other covenant, agreement or obligation hereunder.
(d) Lessor, at Lessee's sole cost and expense, shall cooperate and
assist with Lessee's efforts to obtain all services, Applicable Permits and
contracts necessary or useful for the construction of the Modifications or the
operation and maintenance of the Property for the intended purposes thereof and
the Lessor shall execute such documents or papers as may be reasonably necessary
for such purposes.
(e) The Lessee shall, and it shall require (and shall indemnify in the
manner and the Persons specified in Section 9.15 of the Participation Agreement
for the breach of such requirement) that any and all sublessees, employees,
contractors, subcontractors, agents, representatives, affiliates,
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consultants, occupants and any and all other Persons, (i) comply in all material
respects with all applicable Environmental Laws relating to the Property or
activities undertaken on the Property, and (ii) use, employ, process, emit,
generate, store, handle, transport, dispose of and/or arrange for the disposal
of any and all Hazardous Materials in, on or, directly or indirectly, related to
or used in connection with the Property or any part thereof in compliance in all
material respects with all applicable Environmental Laws and in a manner
consistent with prudent industry practice and which does not pose a significant
risk to human health or the environment.
(f) The Company has entered into the Construction Agency Agreement with
the Lessor pursuant to which the Lessee, as Construction Agent, has agreed to
design, procure and construct the Modifications. All Modifications shall, as the
construction or installation of the same is completed, become a part of the
Improvements, and title thereto shall be and remain in the Lessor.
3. Term. The Property is leased for a term (the "Term"), which
commenced as of July 30, 1993 and shall end on March 27, 2003 (the "Expiration
Date") or on such earlier date as this Lease shall be terminated pursuant to any
provision hereof.
4. Rent.
(a) Lessee shall pay to the Lessor Basic Rent on each Payment Date in
the amounts determined in accordance with Schedule B hereto.
(b) All amounts that the Lessee is required to pay to the Lessor
pursuant to this Lease (other than Basic Rent), including, but not limited to,
(i) all sums, costs and expenses paid or incurred by Lessor pursuant to
Paragraphs 23 and 26 hereof and Item I.B(1) of Schedule B hereto, (ii) all costs
and expenses relating to the Property or the Lessee's use or the Lessor's
ownership thereof or the Lessee's failure to perform its obligations hereunder,
(iii) any and all amounts payable upon transfer or purchase of (or otherwise
relating to) the Property, and (iv) Additional Costs as more fully described in
Item II of Schedule B hereto, as well as Impositions and Charges pursuant to
Section 6.03 of the Participation Agreement, together with every fine, penalty,
interest and cost that may be added for non-payment or late payment thereof, as
well as the costs of enforcement and legal fees in respect of clauses (ii) and
(iii) above, shall constitute "Additional Rent" and shall be paid by Lessee on
demand. Lessor shall give Lessee notice of any Additional Rent due hereunder
promptly after it has knowledge of such Additional Rent, and shall use its best
efforts to notify the Lessee in advance of the due date and amount of such
Additional Rent; provided that failure to give such prompt notice shall not
relieve the Lessee of its obligation to pay such Additional Rent.
(c) The Lessee shall pay on demand to the Lessor interest at the
Default Rate on all amounts payable by it to the Lessor hereunder (i) from the
due date thereof until paid in full and (ii) upon the occurrence and during the
continuance of an Event of Default.
(d) All amounts payable by the Lessee hereunder shall be paid in lawful
money of the United States of America and in immediately available funds by
12:30 P.M. (New York City Time) on the date when due, unless any such due date
is not a Business Day in which case (unless otherwise set forth herein) payment
shall be due and payable on the next succeeding Business Day (but any amounts
due shall be calculated through the date actually paid) at the Lessor's address
for payments set forth in the Participation Agreement or at such other address
or to such other person in the United States of America or in such other manner
as the Lessor from time to time may designate to the Lessee by written
instructions.
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(e) The Lessee shall perform all of its obligations under this Lease at
its sole cost and expense and shall pay, when due and without notice or demand
(except as otherwise provided in this Lease), all amounts due hereunder. The
Lessee agrees to pay on demand (except as otherwise provided for in the
Operative Documents) (i) all Impositions which have become due and payable
(subject to Lessee's rights pursuant to paragraphs 11 and 18) and (ii) all
indemnity obligations and all charges, fees, costs and expenses of the Lessor
(as well as amounts equal to all indemnity obligations the Lessor undertakes
pursuant to the Declaration or the Participation Agreement to the Purchasers,
including, without limitation, the fees and expenses of Trustee's Counsel and
Special Counsel and the charges, fees and expenses of the Appraiser, the
Independent Engineer and the Environmental Consultant) which are required to be
paid by, or in connection with the preparation, execution, delivery,
administration, performance, modification and amendment of, this Lease and the
other Operative Documents and any other documents to be delivered in connection
herewith or therewith as well as in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of the Operative Documents
and such other documents.
5. Net Lease; Non-Terminability.
(a) This Lease is a "net lease" and, except as otherwise expressly
provided herein, this Lease, any present or future Law to the contrary
notwithstanding, shall not terminate, nor shall the Lessee be entitled to any
abatement, reduction, set-off, counterclaim, defense or deduction with respect
to any Basic Rent, Additional Rent or other sum payable hereunder. The
obligations of the Lessee hereunder shall not be affected by reason of: (i) any
damage to or destruction of the Property or any part thereof by any cause
whatsoever (including, without limitation, by fire, Casualty or act of God or
enemy or any other force majeure event);(ii) any Condemnation, including,
without limitation, a temporary Condemnation of the Property (or Lessor's
interest therein) or any part thereof; (iii) any prohibition, limitation,
restriction or prevention of the Lessee's use, occupancy or enjoyment of the
Property or any part thereof by any Person; (iv) any matter affecting title to
the Property or any part thereof; (v) any eviction of the Lessee from, or loss
of possession by the Lessee of, the Property or any part thereof, by reason of
title paramount or otherwise; (vi) any default by the Lessor hereunder or under
any other agreement; (vii) the invalidity or unenforceability of any provision
hereof or the impossibility or illegality of performance by the Lessor or the
Lessee or both; (viii) any action of any Governmental Authority; or (ix) any
other cause or occurrence whatsoever, whether similar or dissimilar to the
foregoing. The parties intend that the obligations of the Lessee hereunder shall
continue unaffected unless such obligations shall have been modified or
terminated pursuant to an express provision of this Lease.
(b) The Lessee shall remain obliged under this Lease in accordance with
its terms and shall not take any action to terminate, rescind or avoid this
Lease, notwithstanding any bankruptcy, insolvency, reorganization, liquidation,
dissolution or other proceeding affecting the Lessor or any action with respect
to this Lease which may be taken by any trustee, receiver or liquidator or by
any court. Except as expressly permitted in this Lease, the Lessee waives all
rights to terminate or surrender this Lease, or to any abatement or deferment of
Basic Rent, Additional Rent or other sums payable hereunder. The Lessee shall
remain obliged under this Lease in accordance with its terms and the Lessee
hereby waives any and all rights now or hereafter conferred by Law or otherwise
to modify or to avoid strict compliance with its obligations under this Lease.
All payments made to the Lessor hereunder as required hereby shall be final, and
the Lessee shall not seek to recover any such payment or any part thereof for
any reason whatsoever, absent manifest error.
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6. Taxes and Assessments; Compliance with Law; Certain Agreements.
(a) The Lessee shall pay or cause to be paid, subject to paragraphs 11
and 18, all Impositions before any fine, penalty, interest or cost may be added
or any default may be claimed or any termination or foreclosure or forfeiture
procedures for nonpayment may be commenced. If any Imposition may legally be
paid in installments, such Imposition may be so paid in installments; provided,
however, that all such installments which may be due from time to time shall be
paid by the Lessee by, on or before the Expiration Date or the earlier
termination of this Lease.
(b) The Lessee shall comply in all material respects with, and cause
the Property to be in compliance in all material respects with, all Legal
Requirements.
(c) Lessee shall promptly, but in any case within five Business Days of
the receipt thereof, forward to Lessor and the Managing Agents copies of any
notices, complaints, summons, or any other notifications received by Lessee from
any Governmental Authority relating to alleged violations of any Environmental
Law or potential adverse actions in any way involving environmental, health, or
safety matters affecting the Property (or any part thereof) in which the cleanup
obligations or corrective action or the liability under any Environmental Law
could exceed $10,000. Lessee shall promptly notify Lessor when it becomes aware
of any spill or any other release of any Hazardous Material, whether or not such
spill or release occurred prior to, on or after the date hereof, at, in, on,
under or from the Property or any part thereof that is required to be reported
to any Governmental Authority or that could reasonably be expected to result in
any ordered remediation or corrective action or obligation. Whether or not the
Lessee is required to give notice of any of the matters set forth in this
paragraph 6(c), the Lessee shall immediately initiate, at its sole cost and
expense, such actions as may be necessary to comply in all material respects
with all applicable Environmental Laws and to alleviate any significant risk to
human health or the environment. Once the Lessee commences such actions, the
Lessee shall thereafter diligently and expeditiously proceed to comply in a
timely manner with all Environmental Laws and to eliminate any significant risk
to human health or the environment and shall, at the request of the Lessor, give
periodic progress reports on its compliance efforts and actions.
7. Matters of Title.
(a) Other than Permitted Encumbrances, the Lessee shall not create or
permit to be created or exist, and shall promptly remove and discharge, any Lien
upon this Lease or any sublease permitted hereby, the Property (or Lessor's
interest therein) or any part thereof or interest therein, or upon any Basic
Rent, Additional Rent or other sum payable hereunder, which Lien arises for any
reason, including, without limitation, any and all Liens which arise out of the
ownership, use, condition, occupancy, construction, possession, repair or
rebuilding of the Property or any part thereof (including, without limitation,
by reason of construction of the Modifications) or by reason of labor or
materials furnished or claimed to have been furnished to the Lessee or for the
Property or any part thereof.
(b) Nothing contained in this Lease shall be considered as constituting
the consent or request of the Lessor, express or implied, to or for the
performance by any contractor, laborer, materialman, or vendor of any labor or
services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Property or any part
thereof. NOTICE IS HEREBY GIVEN THAT THE LESSOR IS NOT AND SHALL NOT BE LIABLE
FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE,
OR TO ANYONE HOLDING OR POSSESSING THE PROPERTY OR ANY PART THEREOF THROUGH OR
UNDER THE LESSEE, AND THAT NO MECHANIC'S OR OTHER SIMILAR
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STATUTORY LIENS FOR ANY LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT
THE PROPERTY OR ANY PART THEREOF.
(c) The Lessor shall not create, grant or suffer to exist any Lien upon
this Lease, the Property or any part thereof or upon any Basic Rent or
Additional Rent or any other sum payable hereunder except (i) Permitted
Encumbrances and (ii) in respect of any action taken by the Lessor or the
holders from time to time of the Instruments in connection with the perfection
or enforcement of any rights under any Operative Document.
8. Certain Zoning Matters.
(a) Lessor agrees that the Lessee during the Term shall have the
exclusive right (so long as no Event of Termination or Event of Default has
occurred and is continuing) to secure subdivision approvals, site plan
approvals, annexation or de-annexation approvals, zoning variances, and Permits
necessary or desirable for the development, use, operation, maintenance or
condition of the Property (and Lessor's interest therein) or any part thereof;
provided that the fair market value of the Property as a general purpose office
building is not materially lessened thereby; and provided, further that no such
action shall impair the Lien of the Mortgages or the ability of the Agent to
foreclose thereon.
(b) Lessor agrees to execute such documents and take all other actions
as shall be reasonably necessary, and otherwise cooperate with Lessee, in
connection with the matters described above; provided, however, that (i) all
costs and expenses incurred by the Lessor in connection therewith shall be borne
by Lessee and (ii) Lessor shall not be required to execute any documents which
would, in its opinion, materially diminish the value of the Property (or
Lessor's interest therein) as a general purpose office building or otherwise
adversely affect the transactions contemplated by the Operative Documents or the
rights or interests of the Lessor or the holders from time to time of the
Instruments.
9. Maintenance and Repair.
(a) The Lessee, at its own expense, will manage and maintain the
Property (i) in good working order, (ii) in good mechanical condition and
repair, (iii) in accordance with prudent industry practice and (iv) in a manner
consistent with that of other class A office buildings in downtown Manhattan.
Lessee further agrees to take all action, and make all changes and repairs,
structural and nonstructural, foreseen and unforeseen, ordinary and
extraordinary, which (x) may be required to maintain the Property in accordance
with the above standards and (y) which may be required pursuant to any material
Legal Requirement or any Insurance Requirement at any time in effect. All
repairs, replacements and rebuilding by the Lessee hereunder shall immediately
become and shall remain part of the Property, subject to this Lease. The Lessor
shall not be required to, and the Lessee hereby waives any right to require the
Lessor to, manage, maintain, replace, repair or rebuild the Property or any part
thereof, and the Lessee waives any and all rights it may now or hereafter have
to make any repairs at the cost and expense of the Lessor pursuant to any Legal
Requirement, Insurance Requirement, or otherwise, at any time in effect.
(b) In the event that all or any part of the Improvements shall
encroach upon any property or right-of-way adjoining or adjacent to the Parcel
or any part thereof, or shall violate any agreements or conditions affecting the
Property or any part thereof, or shall obstruct any easement or right-of-way to
which the Property or any part thereof may be subject, then the Lessee shall, at
its sole cost and expense, (i) contest such matter pursuant to paragraph 18
hereof, or (ii) obtain valid and effective Permits for or consents to such
encroachments and/or violations (without any liability to Lessor
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or the holders of the Instruments) or waivers or settlements of all claims,
liabilities and damages resulting therefrom, or (iii) make such changes,
including alteration, to the Improvements and take such other action as shall be
necessary to rectify such encroachments, violations, hindrances, obstructions or
impairments without impairing the value of the Property.
10. Lessee Alterations; Removal. Termination has occurred or no Default
or Event of Default shall have occurred and is continuing, the Lessee may, at
its own cost and expense, make alterations to the Property or any part thereof
(in addition to the Modifications); provided, however, that (i) the fair market
value of the Property (and Lessor's rights and interests therein) shall not
materially be lessened thereby and (ii) such work shall be completed in a good
and workmanlike manner free and clear of any Liens for labor, services or
materials (subject to paragraph 18 hereof) and in compliance with all material
applicable Legal Requirements and all Insurance Requirements.
(a) The Lessee shall be permitted at any time during, or upon the
expiration or termination of, the Term, and at its sole cost and expense, to
remove or demolish any alterations to the Property in accordance with prudent
industry practices; provided, however, that, such removal shall not (i) impair
the intended use or materially reduce the fair market value of the Property (or
any part thereof) (or Lessor's interest therein) below its fair market value
immediately prior to such removal or demolition (assuming compliance by the
Lessee with the terms of this Lease) and (ii) cause a violation of any material
Legal Requirement or any Insurance Requirement or significantly increase any
risk of liability under any Environmental Law or any risk to human health or the
environment. Any damage to the Property or any part thereof caused by such
removal shall promptly be repaired by the Lessee and the Property or any part
thereof shall be restored to its condition (or the equivalent thereof) as it
existed immediately prior to the construction of such removed alterations
(assuming compliance by the Lessee with the terms of this Lease) at the Lessee's
sole cost and expense. The Lessee may place upon the Property (or any part
thereof) any inventory, fixtures, machinery, equipment or other property
belonging to the Lessee or third parties and remove the same at any time during
the Term; provided, however, that, at the request of the Lessor (unless the
Lessee (or its designee) shall have purchased Lessor's right, title and interest
in and to the Property pursuant to the terms hereof), the Lessee shall remove
the same at the expiration or termination hereof and any damage to the Property
or any part thereof caused by any such removal shall promptly be repaired by the
Lessee, and the Property or such part thereof restored to its condition (or the
equivalent thereof) as it existed immediately prior to the placement of any such
property upon the Property (assuming the Property was then in the condition
required pursuant to the terms of this Lease), all at the Lessee's sole cost and
expense.
(b) The Lessee shall notify the Lessor of any alterations (other than
the Modifications) to the Property the cost of which is anticipated to exceed in
the aggregate $3,000,000 in any calendar year, which notice shall include a
reasonably detailed description of the work that will be done. All such
alterations shall become and remain part of the Property and shall be subject to
this Lease, unless and until removed by the Lessee in accordance with paragraph
10(b).
11. Lessee's Right to Contest Property Taxes.
(a) The Lessee, at its own cost and expense and in compliance with
paragraph 18, shall have the sole right, at any time, to seek a reduction in the
assessed valuation of the Property or any part thereof and to contest any
Property Taxes for the Property or any part thereof. The Lessor shall not be
required to join in any proceeding or contest brought by the Lessee unless the
provisions of any Legal Requirement require that the proceeding or contest be
brought by or in the name of the owner of the Property. In that case Lessor
shall join in the proceeding or contest or permit it to be brought in the
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Lessor's name as long as Lessee indemnifies and reimburses the Lessor for any
and all costs and expenses incurred by the Lessor in connection therewith. The
Lessee, on a final non-appealable determination of the proceeding or contest,
shall immediately pay, discharge and satisfy any decision or judgment rendered,
together with all costs, interest, additions to tax, fines and penalties
incidental to any such decision or judgment.
12. Condemnation and Casualty.
(a) General. The Lessee hereby irrevocably assigns to the Lessor any
award or compensation or insurance payment to which the Lessee or any Person
claiming through or under the Lessee may become entitled by reason of its
interest in the Property or any part thereof if (i) the Property or any part
thereof (or Lessor's interest therein) is damaged or destroyed by fire or other
casualty (a "Casualty") or (ii) the use, occupancy or title of the Property or
any part thereof (or Lessor's interest therein) is taken or requisitioned or
sold in, or on account of any actual or threatened condemnation, taking or
eminent domain proceedings, or other action by any Person or Governmental
Authority having the power of eminent domain (a "Condemnation").
The Lessee shall promptly notify the Lessor in writing of any such
Casualty or Condemnation and shall appear in any proceeding or action to defend,
negotiate, prosecute or adjust any claim for any award or compensation or
insurance payment on account of any Casualty or Condemnation and shall take all
appropriate action in connection with any Casualty or Condemnation, including
the employment of counsel satisfactory to the Lessor. The Lessor shall have the
right to appear and participate and to employ counsel in any such proceeding or
action, and the reasonable fees and expenses of such counsel shall be paid by
the Lessee. If the Lessee shall elect not to appear or shall fail to prosecute
diligently, the Lessor may assume the prosecution thereof and the Lessee shall
pay all of the costs and expenses of the Lessor (including, but not limited to,
reasonable fees and expenses of the Lessor's counsel) and the reasonable fees
and expenses of Special Counsel. Other than as provided in paragraph 16(b)
(iii), no settlement of any such proceeding or action shall be made by the
Lessee or the Lessor without the written consent of the other party hereto,
which consent shall not unreasonably be withheld.
Except as provided below, any and all amounts representing proceeds
paid in connection with any such Condemnation or Casualty, as the case may be
(collectively, the "Proceeds"), shall be paid over to the Proceeds Trustee (as
defined below) to be held in trust by such Proceeds Trustee and distributed
either pursuant to this paragraph 12 or pursuant to the Declaration and
paragraph 15 hereof, as appropriate, (all such Proceeds, less the costs and
expenses incurred by the Lessor in collecting such amounts, but including any
reimbursement by the Lessee for costs and expenses in connection therewith to
which the Lessor and the holders from time to time of the Instruments are
entitled pursuant to this Lease or the other Operative Documents, are the "Net
Proceeds"). Any and all Proceeds received by the Lessee in connection with any
such proceeding or action shall be received and held in trust for the benefit of
the Lessor, shall be segregated from other funds of the Lessee and shall be
forthwith paid over to the Proceeds Trustee. The Lessee agrees that this Lease
shall control the rights of the Lessor and the Lessee in any such Proceeds, and
any present or future Law to the contrary is hereby waived. Any and all
reasonable charges, fees and expenses of the Proceeds Trustee shall be paid from
the Net Proceeds. "Proceeds Trustee" shall mean SSBTC or such title company or
other independent bank or trust company as may be designated by the Lessor, at
the direction of the Majority Purchasers. Notwithstanding the foregoing, if the
total amount of Net Proceeds are $25,000,000 or less, and a Termination Notice
shall not have been (or have been deemed to be) delivered and no Event of
Default shall have occurred and is
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continuing, such proceeds shall not be required to be paid over to the Proceeds
Trustee, but shall be paid to the Lessee, for application pursuant to paragraph
12(c) below.
(b) Condemnation or Casualty with Termination.
(i) If a Casualty or a Condemnation shall in the good faith
opinion of the Lessee affect the Property in such manner as to render
it unsuitable for restoration or for continued use and occupancy by the
Lessee for the intended purposes thereof, then the Lessee may deliver
to the Lessor, not later than 30 days after such occurrence a written
notice (herein called a "Termination Notice") describing the event
giving rise to such termination and describing the status of any
proceeding or action and the amount of any Condemnation award or
insurance payment received or expected to be received in connection
therewith, together with the date, or anticipated date, of such
receipt.
(ii) If a Condemnation shall result in the taking of more than
20% of the then fair market value of the Property prior to such
Condemnation, or if a Casualty shall result in the damage or
destruction of more than 20% of the then fair market value of the
Lessor's interest in the Property prior to such Casualty, in each
instance as determined pursuant to the Appraisal Procedure, or if
restoration of the Property to its value and utility prior to such
Casualty or Condemnation shall be impractical or uneconomical or cannot
be completed prior to the Expiration Date, then the Lessee shall be
deemed to have delivered to the Lessor a Termination Notice with
respect to the Property as of such occurrence. Either the Lessor or the
Lessee may initiate the Appraisal Procedure by submitting a written
request that an appraiser be appointed.
(c) Condemnation or Casualty Without Termination. If, after a Casualty
or Condemnation, the Lessee has not given or been deemed to have given a
Termination Notice in accordance with subparagraph 12(b), then this Lease shall
continue in full force and effect, and the Lessee shall, at its cost and
expense, within a reasonable period (not to exceed 30 days) commence and
diligently pursue to completion, regardless of whether or not any Net Proceeds
in respect of such Casualty or Condemnation have been paid to the Proceeds
Trustee or the Lessee, as the case may be, the rebuilding, replacement or repair
of any damage to the Property caused by such event in conformity with the
requirements of this Lease, including without limitation paragraphs 9 and 10 in
order to restore the Property (in the case of a Condemnation, as nearly as
practicable) to the value and operating condition (assuming Lessee's compliance
with the terms of this Lease prior to the occurrence of the Condemnation or
Casualty) thereof immediately prior to such event. In connection with such
restoration the Lessee shall, before beginning such restoration, submit plans
and specifications for such restoration, together with an estimate of the cost
thereof, and all necessary construction contracts therefor for the Lessor's and
the Independent Engineer's approval (provided, that if Lessee proposes to
restore the Property to the same plans and specifications existing immediately
prior to the Casualty or Condemnation, using all new materials of at least like
quality used prior to the occurrence of such Condemnation or Casualty and
otherwise consistent with the construction of first class office buildings in
New York City, no approval of such plans and specifications by Lessor or the
Independent Engineer shall be required), which consent will not unreasonably be
withheld; provided that (i) the capacity and useful life of the Improvements
shall not, after such restoration, be substantially less than the capacity and
useful life prior to such Casualty or Condemnation;(ii) neither the fair market
value of the Property nor Lessor's interest therein shall, after such
restoration, be substantially less than its fair market value prior to such
Casualty or Condemnation and (iii) if the estimated cost to complete such
restoration exceeds the amount of Net Proceeds, the Lessor is, in its sole
judgment, satisfied that the Lessee shall have sufficient funds (the "Excess
Funds") available to pay such excess. If either Mortgage has been recorded, the
Lessee shall
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hold such Excess Funds and any Net Proceeds then held by the Lessee pursuant to
paragraph 12(a) in a segregated account, subject to application in accordance
with the terms of the next succeeding paragraph hereof. Such work shall be
completed in a good and workmanlike manner free and clear of all Liens for
labor, services or materials and in compliance with all applicable material
Legal Requirements and all Insurance Requirements. All reasonable fees and
expenses of the Lessor and the Independent Engineer in connection with any
rebuilding and restoration shall be at the Lessee's sole cost and expense.
The Lessee shall be entitled to pay the Excess Funds or to receive
payment from the Net Proceeds or to pay the Net Proceeds if then held by Lessee
pursuant to paragraph 12(a), as the case may be, from time to time as such work
of rebuilding, replacement or repair progresses, but only after presentation of
an Officer's Certificate of the Lessee certifying that no Default or Event of
Default under any of the Operative Documents has occurred and is continuing and
that the Net Proceeds held by the Proceeds Trustee or the Lessee, as the case
may be, plus all necessary undisbursed Excess Funds are adequate to complete
such rebuilding, replacement or repair. The Proceeds Trustee shall deliver, or
cause to be delivered, payment within five days after its receipt of the
certificates required above. In connection with such payments Lessee shall first
disburse all Excess Funds for the cost of such restoration prior to the
disbursement of any Net Proceeds by the Proceeds Trustee or the Lessee. Upon
receipt by the Proceeds Trustee (with a copy to the Lessor) of an Officer's
Certificate from the Lessee, to the effect that final payment has been made for
any such work and stating that the rebuilding, replacement or repair has been
completed in compliance with the terms and conditions of this Lease, the
remaining amount of such Net Proceeds shall (i) be paid to the Lessee or (ii) if
such remaining Net Proceeds shall then be held by the Lessee pursuant to the
terms hereof, may be used by the Lessee for purposes other than those set forth
in this paragraph 12.
(d) Temporary Condemnation or Lease Termination. Notwithstanding any
provision to the contrary contained in this paragraph 12, in the event of any
temporary Condemnation this Lease shall remain in full force and effect, and
provided no Default or Event of Default has occurred and is continuing, the
Lessee shall be entitled to receive the Net Proceeds allocable to such temporary
Condemnation, except that if this Lease shall expire or terminate during such
temporary Condemnation (other than by reason of the Lessee's exercise of its
Option to Purchase and its payment of the Purchase Price), then the Lessor shall
be entitled to the Net Proceeds allocable to the period after the termination or
expiration of this Lease.
13. Effect of Termination Notice. The Termination Notice given pursuant
to paragraph 12(b) shall specify a date, not less than 30 nor more than 60 days
after the giving of such Notice upon which this Lease shall terminate. If the
Termination Notice is deemed given, the date of termination shall be the 30th
day after the receipt of the appraisal required by paragraph 12(b)(ii). On such
date this Lease will terminate, except with respect to obligations and
liabilities, actual or contingent, which have arisen on or prior to such date.
Upon such termination, the provisions of the Instrument Guaranty and the Company
Guaranty shall apply.
14. Lessee Purchase Option.
(a) At any time during the Term, Lessee may deliver to Lessor a notice
of exercise of its option to purchase (the "Option to Purchase") Lessor's
interest in the Property.
(b) Any exercise of Lessee's Option to Purchase shall be irrevocable
and unconditional and shall set forth the applicable Purchase Price. The
procedure for the purchase of the Property and the purchase price therefor shall
be governed by paragraph 15 hereof.
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(c) In addition to the foregoing rights, in the event this Lease has
been terminated as a result of an Event of Default Lessee may for a period of 30
days after such termination deliver to the Lessor a notice of exercise of its
Option to Purchase the Property, and in such event, the provisions of paragraph
14(b) and paragraph 15 shall apply.
15. Procedure Upon Purchase.
(a) The date of the closing of the Lessee's purchase of Lessor's
interest in the Property (the "Closing Date") shall be (i) in the case of a
purchase by the Lessee pursuant to paragraph 14(c), on the fifth Business Day
following the Lessee's delivery of notice of exercise of the Option to Purchase,
or (ii) otherwise, on the first Payment Date occurring at least 15 days
following the date of Lessor's receipt of the notice of exercise in compliance
with the notice provisions of the Participation Agreement, but in no event later
than the Expiration Date. On the Closing Date, upon receipt of the Purchase
Price, the Lessor shall, subject to compliance with all Legal Requirements,
convey, or cause to be conveyed, any and all of its right, title and interest in
and to the Property, (or, in the case of an occurrence of a Casualty or
Condemnation, the remaining portion thereof) to the Lessee or its designee by
appropriate instruments of conveyance, containing no representation or warranty
(expressed or implied) except that the Lessor's interest in the Property is free
and clear of any conveyance, mortgage, lease, or Lien or other adverse interest
of any kind created or caused by the Lessor or any person claiming by, through
or under the Lessor (except in connection with the arrangements contemplated by
the Operative Documents or as otherwise consented to or created or caused by the
Lessee and except as to any interest created by the Lessor upon the exercise of
any right hereunder upon any Event of Default or Event of Termination).
(b) On the Closing Date, the Lessee shall pay, or cause to be paid, to
the Lessor a price equal to the Capitalized Cost of the Property (as defined in
Schedule B hereof) together with all Basic Rent, Additional Rent and all other
sums then due and payable hereunder or under any of the Operative Documents
relating to the Property up to and including such Closing Date plus all Closing
Costs (such amounts are herein referred to as the "Purchase Price"), and the
Lessor shall simultaneously (i) deliver to the Lessee or its designee the
instrument(s) referred to in subparagraph 15(a) above and any other instruments
reasonably necessary to convey to the Lessee or its designee Lessor's interest
in the Property (and assign all Real Estate Agreements to which Lessor is a
party) (other than any indemnities thereunder) and any other related property
then required to be assigned pursuant hereto, and (ii) convey, or cause to be
conveyed, to the Lessee or its designee any Net Proceeds related to the Property
and/or the right to receive the same. In the event that the payments due under
this paragraph are not paid in full when due, any moneys actually paid shall be
deemed to be a payment after an Event of Default and shall not be deemed to be
Purchase Price.
(c) Upon the completion of any purchase of the Property pursuant to
this paragraph 15, but not prior thereto, this Lease shall terminate, or, at the
request and expense of the Lessee, the Lessor shall transfer its interest in
this Lease, in either case except with respect to obligations and liabilities of
the Lessee actual or contingent which have arisen on or prior to such date of
purchase, and except as elsewhere expressly provided herein and as provided in
Section 9.15(b) of the Participation Agreement.
16. Insurance.
(a) The Lessee will purchase and maintain, or cause to be purchased and
maintained, insurance with respect to the Property of the following types and in
the following amounts (or in such
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greater amounts as may become necessary from time to time to prevent the Lessor,
the Lessee and the holders from time to time of the Instruments from becoming
co-insurers of any loss) but in no event in amounts less than those customarily
maintained for other similar buildings in downtown Manhattan; provided, however,
that the Lessee may self-insure (other than in respect of business interruption
insurance which may include a three-day deductible) for the first $1,000,000 in
coverage for any of the following:
(i) Property Insurance: Insurance against physical damage to
the Property caused by "all risks" perils, including flood insurance
and business interruption coverage as well as broad form boiler and
machinery coverage;
(ii) "All Risk", Builder's Risk Insurance: Insurance against
all risk of physical loss or damage to the Property while in the course
of construction;
(iii) General Public Liability Insurance: Insurance against
claims for bodily injury (including death) and property damage
occurring on, in or about the Property or resulting from activities on
the Property, in the minimum combined single limit amount of $75
million in the annual aggregate and $75 million for bodily injury (or
death) and/or property damage;
(iv) Workers' Compensation Insurance: Insurance, including,
without limitation, workers' compensation insurance at statutory levels
and employers' liability insurance, with a limit of $100,000 in the
aggregate; and
(v) Other Insurance: Such other insurance, in such amounts and
against such risks, as is either (x) customarily carried by companies
owning, operating or leasing property or conducting businesses similar
and/or similarly situated to the Property and/or the Lessee, or (y)
reasonably requested from time to time by Lessor or the Managing
Agents.
Such insurance shall be written by companies that are nationally
recognized (including Lloyd's of London or other recognized international
insurers); primary insurance shall be written by companies rated at least A- XI
or better in Best's Key Guide (provided that the insurance required pursuant to
clauses (iii) and (iv) of this paragraph 16(a) may be written by Gulf Insurance
Company so long as such company maintains a rating of at least A+ VIII in Best's
Key Guide) and legally qualified to issue such insurance, selected by the Lessee
and shall name SSBTC (in its individual capacity and as Trustee) and the Agent
for the benefit of the holders from time to time of the Instruments and their
assigns, as additional insureds, as their interests may appear.
(b) (i) The insurance referred to in paragraph 16(a)(i) and (ii) for
the Property may be a blanket policy and shall (i) at all times be in an amount
at least equal to 100% of the replacement cost value (without depreciation), and
(ii) shall name SSBTC (in its individual capacity and as Trustee) and the Agent
for the benefit of the holders from time to time of the Instruments, and their
assignees, as additional insureds, as their interests may appear.
(ii) Every policy required under paragraph 16(a) shall: (1) expressly
(A) provide that it will not be canceled or terminated or changed except upon 30
days' prior written notice to the Lessor and the Lessee and the Agent, except in
the case of cancellation or termination due to a lapse for non-payment, in which
case only 10 days' prior written notice shall be required; (B) provide that the
interests of the Lessor and the Agent for the benefit of the holders from time
to time of the Instruments shall be insured regardless of any breach or
violation by the Lessee of any warranties, declarations or conditions
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contained in such insurance; (C) provide that any act, omission or negligence of
one party insured thereunder shall not invalidate or affect said insurance
coverage for any other party insured thereunder and that such insurance shall
not be invalidated by any foreclosure or other proceedings or notices thereof
relating to the Property or any part thereof, nor by legal title to, or
ownership of the Property or any part thereof becoming vested in or by Lessor or
its agents, nor by occupancy or use of the Property or any part thereof for
purposes more hazardous than permitted by such policy; (D) include a waiver of
all rights of subrogation against the Lessor and the holders from time to time
of the Instruments and any recourse against the Lessor or the holders from time
to time of the Instruments for payment of any premiums or assessments under any
policy; and (E) not contain a provision relieving the insurer thereunder of
liability for any loss by reason of the existence of other policies of insurance
covering the Property or any part thereof against the peril involved, whether
collectible or not, if such other policies do not name the Lessor and the Agent
for the benefit of the holders from time to time of the Instruments as
additional insureds. The Lessee shall advise the Lessor and the Agent promptly
of any policy cancellation or any change adversely affecting the coverage
provided thereby.
(iii) As long as no Event of Default shall have occurred and be
continuing, the Lessee may agree to the adjustment of any insurance claim
pertaining to the Property or any part thereof; provided, however, that if such
claim originally involved an amount of $25,000,000 or more, the amount equal to
the difference between such original amount and the adjusted amount shall be
treated as Net Proceeds and Lessee shall either pay over such amount to the
Proceeds Trustee or provide the Proceeds Trustee with a letter of credit,
reasonably acceptable to the Lessor, for such amount.
(c) The Lessee shall deliver to the Lessor the certificates of
insurance evidencing the existence of all insurance which is required to be
maintained by the Lessee hereunder including descriptions of the previously
mentioned Insurance Requirements not customarily found in a standard insurance
policy as well as descriptions of the exceptions to coverage under such
policies, such delivery to be made (i) as provided in Section 2.01(j) of the
Participation Agreement, (ii) within 30 days of the issuance of any additional
policies or amendments or supplements to any of such insurance, and (iii) on or
prior to the expiration date of any such insurance. The Lessee shall notify
Lessor of any nonrenewal of any policy required hereunder and shall cause each
insurer under each policy required hereunder to give the Lessor notice within
the time frames specified in paragraph 16(b)(ii)(1)(A) of any lapse under any
such policy. The Lessee shall not obtain or carry separate insurance concurrent
in form, or contributing in the event of loss, with that required by this
paragraph 16 unless the Lessor and the Agent for the benefit of the holders from
time to time of the Instruments are named as additional insureds therein, with
loss payable as provided in this Lease. The Lessee shall immediately notify the
Lessor and the holders from time to time of the Instruments whenever any such
separate insurance is obtained and shall deliver to the Lessor the certificates
of insurance evidencing the same as is required hereunder.
17. Subletting and Non-Disturbance; No Mortgage of Estate; Assignment.
(a) The Lessee may sublet or license a portion or portions of the
Property to any third party from time to time, provided that (i) such sublease
shall by its terms be expressly made subject and subordinate to the terms of
this Lease and the Mortgages and (ii) there shall exist no Default or Event of
Default or Event of Termination as of the date such sublease is executed by the
Lessee.
(b) No sublease or license pursuant to this paragraph 17 shall modify
or limit any right or power of the Lessor hereunder or affect or reduce any
obligation of the Lessee hereunder, and all such obligations shall continue in
full force and effect as obligations of a principal and not of a guarantor or
surety, as though no subletting had been made or occupancy permitted.
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(c) The Lessee shall provide a conformed copy of any sublease or
license to Lessor and the Managing Agents no later than 15 days prior to the
effective date of such sublease.
(d) The Lessee or any sublessee or licensee permitted hereby shall not
directly or indirectly assign (except as provided in clause (f) below),
mortgage, pledge or otherwise encumber its interest in and to this Lease or in
and to any sublease or the rentals payable thereunder without the prior written
consent of the Lessor and all such subleases and license agreements shall
contain such a restriction.
(e) Any sublease or license of Lessee's interest or any further
sublease thereof made otherwise than as expressly permitted by this paragraph 17
and any mortgage, pledge or assignment of the Lessee's interest hereunder or
under any such sublease shall be null and void.
(f) Each entity comprising the Lessee shall have the right to assign
all (other than as provided below) or portions of its interest as tenant in
common hereunder to one or more wholly owned subsidiaries or Affiliates of the
Guarantor by delivering written notice to the Lessor, the Managing Agents and
the Agent, which notice shall be accompanied by a copy of the assignment
instrument and the original validly executed and delivered agreement of the
assignee to assume all the obligations of the Lessee hereunder. Upon delivery of
any such notice, the assignee named therein shall, without further action or the
need for any additional documentation, be deemed a tenant in common hereunder
and shall thereafter be included in the term "Lessee"; provided, that the
Company and Salomon Brothers Inc shall at all times retain a combined undivided
51% interest in this Lease as tenants in common with the other entities
comprising the Lessee.
18. Permitted Contests.
(a) So long as no Default or Event of Default has occurred and is
continuing, the Lessee shall not be required, nor shall the Lessor have the
right, to pay, discharge or remove any Imposition (other than Excluded Taxes) or
to comply or cause the Property or any part thereof to comply with any
applicable Legal Requirement or to pay any materialman's, laborer's or
undischarged or unremoved Lien, as long as the Lessee shall at its sole cost and
expense contest, or cause to be contested, in good faith, the existence, amount
or validity thereof by appropriate proceedings which shall (i) in the case of an
unpaid Imposition or undischarged or unremoved Lien, prevent the collection
thereof from the Lessor or against the Property or any part thereof or Lessor's
interest in any of the foregoing, (ii) prevent the sale, forfeiture or loss of
the Property or any part thereof, and prevent the impairment or subordination of
the Agent's Lien, if any, pursuant to the Mortgage(s), and (iii) in the case of
a Legal Requirement, not subject the Lessor or the holders from time to time of
the Instruments to the risk of any criminal liability or civil liability for
failure to comply therewith. The Lessee shall give such reasonable security as
may be demanded by the Lessor to insure ultimate payment of such Imposition or
the discharge or removal of any materialman's, laborer's or mechanic's Lien or
to insure compliance with such Legal Requirement and to prevent any sale or
forfeiture of the Property or any part thereof or Lessor's interest in any of
the foregoing, or any interference with or deductions from any Basic Rent,
Additional Rent or any other sum required to be paid by the Lessee hereunder by
reason of such non-payment, non-discharge, non-removal or non-compliance;
provided, that, unless a Default or Event of Default has occurred and is
continuing, the Lessee shall not be obliged to post any such security if at any
time the aggregate amount needed for all such purposes shall not exceed
$7,000,000.
(b) The Lessor shall cooperate with the Lessee in any contest and shall
allow the Lessee to conduct such contest (in the name of the Lessor, if
necessary) at the Lessee's sole cost and
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expense. The Lessee shall notify the Lessor of each such proceeding within ten
Business Days prior to the commencement thereof, which notice shall describe
such proceeding in reasonable detail.
(c) The Lessee shall, promptly after the final determination (including
appeals) of any contest brought by it pursuant to this paragraph 18, pay and
discharge all amounts which shall be determined to be payable therein and shall
be entitled to receive and retain for its own account all amounts refunded
and/or rebated as a result of any such contest and if the Lessor receives any
amount as a result of such contest to which it is not otherwise entitled
pursuant to this Lease, it shall promptly return such amount to the Lessee.
19. Default Provisions.
(a) Any of the following occurrences or acts shall constitute an event
of default (each, an "Event of Default") under this Lease:
(i) if the Lessee shall fail to pay (a) any Basic Rent,
Additional Rent or any other amounts required to be paid hereunder
within five business days after the date on which payment is due or (b)
Purchase Price on the date on which payment is due;
(ii) subject to paragraph 18, if the Lessee shall fail to pay
any Imposition when such payment shall become due or within any grace
period provided for payment of such Imposition;
(iii) if the Lessee shall fail to comply with any Insurance
Requirement or, if such failure is due to a downgrading in the rating
of any insurer in Best's Key Guide to a level below that required
pursuant to paragraph 16(a) hereof, the Lessee's failure to replace
such insurer with another insurer having the required rating within
thirty-five (35) days of such downgrading;
(iv) if the Lessee shall grant, suffer to exist (for ten
Business Days without removal or full bonding) or create any Lien
(other than Permitted Encumbrances) upon this Lease or the Property or
any part thereof or interest therein or upon any Basic Rent, Additional
Rent or other sum payable hereunder;
(v) if the Lessee shall fail to comply with the requirements
of paragraph 27(b)(i) within the time periods provided therein;
(vi) if the Lessee has elected to abandon the Property
pursuant to paragraph 27(a), and does not comply with the provisions of
paragraph 27(a);
(vii) if the Lessee shall fail to observe or perform any other
provision hereof and such failure shall continue until the earlier of
(a) 30 days after the date on which the Lessee becomes aware of such
failure or (b) 10 days after notice by the Lessor to the Lessee of such
failure;
(viii) if an Event of Default under the Participation
Agreement or any other Operative Document shall have occurred;
(ix) if the Lessee shall have abandoned the Property for a
period of 30 consecutive days; or
(x) if any entity comprising the Lessee shall commence an
action for the partition of Lessee's interest in this Lease.
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(b) The Lessor may take all steps to protect and enforce the rights of
the Lessor or obligations of the Lessee hereunder, whether by action, suit or
proceeding at law or in equity (for the specific performance of any covenant,
condition or agreement contained in this Lease, or in aid of the execution of
any power herein granted or for any foreclosure, or for the enforcement of any
other appropriate legal or equitable remedy) or otherwise as the Lessor shall
deem necessary or advisable.
(c) (i) subject to paragraph 14(c), if an Event of Default shall have
occurred and be continuing, then upon five days' written notice by the Lessor to
the Lessee, in addition to all other rights or remedies available, the Lessor
may terminate this Lease and the Lessee's right to possession of the Property or
any part thereof. This Lease and the estate hereby granted shall expire and
terminate at midnight on the fifth day (or such later date as may be specified
therein) after the date of such notice, as fully and completely and with the
same effect as if such date were the date herein fixed for the expiration of the
Term and all rights of the Lessee shall terminate but the Lessee shall remain
liable as hereinafter provided.
(ii) Should the Lessor elect not to terminate this Lease, this Lease
shall continue in effect and Lessor may enforce all Lessor's rights and remedies
under this Lease including the right to recover Basic Rent and Additional Rent
as it becomes due under this Lease. For the purposes hereof, the following shall
not be deemed to constitute a termination of this Lease:
(A) Acts of maintenance or preservation of the Property or any
part thereof or efforts to relet the Property or any part thereof,
including, without limitation, termination of any sublease of the
Property and removal of such subtenant from the Property; and/or
(B) The appointment of a receiver upon the initiative of the
Lessor to protect the Lessor's interest under this Lease.
(d) If an Event of Default shall have occurred and be continuing, upon
five (5) days' notice the Lessor shall have (i) the right, whether or not this
Lease shall have been terminated pursuant to paragraph 19(c) hereof, to re-enter
and repossess the Property or any part thereof, as the Lessor may elect, by
summary proceedings, ejectment, any other legal action or in any other lawful
manner the Lessor determines to be necessary or desirable and (ii) the right to
remove all Persons and property therefrom. The Lessor shall be under no
liability by reason of any such re-entry, repossession or removal. No re-entry
or repossession of the Property or any part thereof shall be construed as an
election by the Lessor to terminate this Lease unless a notice of such
termination is given to the Lessee pursuant to paragraph 19(c) hereof, or unless
such termination is decreed by a court or other Governmental Authority of
competent jurisdiction. Should the Lessor elect to re-enter the Property as
herein provided or should the Lessor take possession pursuant to legal
proceedings or pursuant to any notice provided for by Law or upon termination of
this Lease pursuant to paragraph 19(c) hereof or otherwise as permitted by Law,
the Lessee shall peaceably quit and surrender the Property or any part thereof
to the Lessor. In any such event, neither the Lessee nor any Person claiming
through or under the Lessee, by virtue of any Law, shall be entitled to
possession or to remain in possession of the Property or any such part thereof,
but shall forthwith quit and surrender the Property to the Lessor.
(e) At any time or from time to time after the re-entry or repossession
of the Property or any part thereof pursuant to paragraph 19(d) hereof, whether
or not this Lease shall have been terminated pursuant to paragraph 19(c) hereof,
the Lessor may (but shall be under no obligation to) relet the Property or any
part thereof, for the account of the Lessee, without notice to the Lessee, for
such term or terms and on such conditions and for such uses as the Lessor, in
its sole discretion, may determine.
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The Lessor may collect and receive any rents payable by reason of such
reletting. The Lessor shall not be liable for any failure to relet the Property
or any part thereof or for any failure to collect any rent due upon any such
reletting.
(f) No termination of this Lease pursuant to paragraph 19(c) hereof, or
by operation of Law, and no re-entry or repossession of the Property or any part
thereof, pursuant to paragraph 19(d) hereof, and no reletting of the Property or
any part thereof pursuant to paragraph 19(e) hereof, shall relieve the Lessee of
its liabilities and obligations hereunder, all of which shall survive such
termination, re-entry, repossession or reletting.
(g) In the event of any termination of this Lease or of the Lessee's
right to possession of the Property or any part thereof by reason of the
occurrence of any Event of Default, the Lessee shall promptly pay to the Lessor
all Basic Rent and Additional Rent and other sums required to be paid to and
including the date of such termination of this Lease or of the Lessee's right to
possession; and thereafter, until the end of the Term, whether or not the
Property or any part thereof shall have been relet, the Lessee to the extent
permitted by applicable Law shall be liable to the Lessor for, and shall pay to
the Lessor, on the days on which such amounts would be payable under this Lease
in the absence of such termination, re-entry or repossession, as agreed current
damages and not as a penalty: all Basic Rent, all Additional Rent and other sums
which would be payable under this Lease by the Lessee, in the absence of such
termination, re-entry or repossession, and all costs (including attorneys' fees
and expenses) incurred by the Lessor hereunder (payable on demand). The Lessor
shall apply against Lessee's obligations, when received, the net proceeds, if
any, of any reletting effected for the account of the Lessee pursuant to
paragraph 19(e), after deducting from such proceeds all the Lessor's expenses in
connection with such reletting (including, but not limited to, all repossession
costs, brokerage commissions, attorneys' fees and expenses, employees' expenses,
alteration and financing costs and expenses of preparation for such reletting).
20. Additional Rights.
(a) No right or remedy hereunder shall be exclusive of any other right
or remedy, but shall be cumulative and in addition to any other right or remedy
hereunder or now or hereafter existing by Law or in equity and the exercise by
the Lessor of any one or more of such rights, powers or remedies shall not
preclude the simultaneous exercise of any or all of such other rights, powers or
remedies. Failure to insist upon the strict performance of any provision hereof
or to exercise any option, right, power or remedy contained herein shall not
constitute a waiver or relinquishment thereof for the future. Receipt by the
Lessor of any Basic Rent, Additional Rent or other sum payable hereunder with
knowledge of the breach by Lessee of any provision hereof shall not constitute
waiver of such breach, and no waiver by the Lessor of any provision hereof shall
be deemed to have been made unless made in writing. The Lessor shall be entitled
to injunctive relief in case of the violation or attempted or threatened
violation of any of the provisions hereof, a decree compelling performance of
any of the provisions hereof or any other remedy allowed to the Lessor by Law or
in equity.
(b) The Lessee hereby waives and surrenders for itself and all those
claiming under it, including creditors of all kinds, (i) any right and privilege
which they may have to redeem the Property or any part thereof or to have a
continuance of this Lease after termination of the Lessee's right of occupancy
by Law or by any legal process or writ, or under the terms of this Lease, or
after the termination of the Term as herein provided and (ii) the benefits of
any Law which exempts property from liability for debt or for distress for rent.
17
21
(c) If an Event of Default has occurred hereunder, the Lessee shall pay
to the Lessor on demand, all reasonable fees and expenses, including attorneys'
fees and expenses, incurred by the Lessor, up to the time the Lessor has
knowledge that such Event of Default has been cured by the Lessee, in enforcing
its rights under this Lease.
(d) TIME IS OF THE ESSENCE IN LESSEE'S PERFORMANCE UNDER THIS LEASE AND
THE TERMS HEREIN SHALL BE SO CONSTRUED.
21. Notices, Demands, and Other Instruments. All notices, offers,
consents and other instruments given pursuant to this Lease shall be sent to the
parties hereto at the addresses set forth on Schedule I to the Participation
Agreement and shall be given in the manner and shall be effective at the times
and under the terms set forth in Section 9.02 of the Participation Agreement;
provided that, each of the Lessor and the Lessee may from time to time specify,
by giving not less than fifteen (15) days' prior notice thereof to the other
party (i) any other address in the United States as its address for purposes of
this Lease and (ii) any other Person that is to receive copies of notices,
offers, consents and other instruments hereunder; provided that neither party
shall be entitled to designate more than 2 other Persons to receive copies of
notices hereunder.
22. No Default Certificate. Each party hereto shall, at the reasonable
request of the other party hereto, deliver to such other party a certificate
stating whether such first party has knowledge of, or has received notice from
any Person of, any Casualty, Condemnation, Default or Event of Default.
23. Surrender.
(a) Upon the expiration or termination of this Lease or the termination
of Lessee's possession of the Property, the Lessee shall surrender the Property
to the Lessor in the condition in which the Property was upon the commencement
of the Term hereof except as altered by the Modifications and as otherwise
repaired, rebuilt, altered, added to or built as permitted or required hereby
and except for ordinary wear and tear. To the extent that the Property is not in
compliance with the above upon such expiration or termination, the Lessee shall
pay to the Lessor as Additional Rent such additional amounts as are required to
place it in compliance therewith.
(b) The Lessee shall also surrender the Property to the Lessor free and
clear of all Liens, easements, consents and restrictive covenants and agreements
affecting the Property which the Lessee is obliged hereunder to remove.
(c) The Lessee shall also surrender the Property in a condition such
that the Property is in compliance with all applicable Environmental Laws at
surrender (whether or not the deadline for such compliance would otherwise
expire before the end of the Term). Nothing contained in this paragraph 23 shall
relieve or discharge or in any way affect the obligation of the Lessee to cure
promptly pursuant to this Lease any violations of Legal Requirements referred to
in this Lease, or to pay and discharge any Liens and Impositions against the
Property. Lessee shall cooperate, to the fullest extent, with the Lessor, its
subsequent lessees, operators or purchasers to effect the transfer of all of
Lessee's Applicable Permits for the Property to such Persons.
(d) The Lessee, at its sole cost and expense, shall remove from the
Property on or prior to the thirtieth (30th) day following such expiration or
termination all property situated thereon which is not owned by the Lessor and
shall repair any damage caused by such removal and shall restore the Property to
the condition and working order (or reasonable equivalent thereof) in which it
existed
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22
immediately prior to the installation of such property, except for ordinary wear
and tear. Lessee shall indemnify and hold harmless the Lessor, the holders of
Instruments and their respective successors and assigns from and against any
loss, liability or claim arising out of the Lessee's removal of such property
from the Property. Any such property of the Lessee not so removed shall become
the property of the Lessor, and the Lessor may cause such property to be removed
from the Property and disposed of, and the cost of any such removal and
disposition of the Lessee's property and of repairing any damage caused by such
removal and of the restoration of the Property to the condition and working
order (or reasonable equivalent thereof) in which it existed immediately prior
to the installation of such property, ordinary wear and tear excepted, shall be
borne by the Lessee.
(e) The obligations of the Lessee under this paragraph 23 shall survive
the expiration or any termination of this Lease (whether by operation of Law or
otherwise) for all matters described herein which occur or arise prior to such
expiration or termination or arise out of or result from facts, events, claims,
liabilities, actions or conditions occurring, arising or existing on or before
such expiration or termination.
24. Miscellaneous.
(a) This Lease supersedes all prior agreements between the parties
hereto with respect to the matters addressed herein. Each provision hereof shall
be separate and independent and the breach of any such provision by the Lessor
shall not discharge or relieve the Lessee from its obligations to perform each
and every covenant to be performed by the Lessee hereunder. If any provision
hereof or the application thereof to any Person or circumstance shall be invalid
or unenforceable, the remaining provisions hereof, or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each provision hereof shall
be valid and shall be enforceable to the extent permitted by Law. All provisions
contained in this Lease shall be binding upon, inure to the benefit of, and be
enforceable by, the respective permitted successors and assigns of the Lessor
and the Lessee to the same extent as if each successor and assignee were named
as a party hereto. Except for subleases and licenses permitted or created in
accordance with paragraph 17 hereof, the Lessee may not assign its rights or
obligations hereunder or any interest herein. The Lessor may assign all or any
part of its interest in the Property and/or its rights and obligations under
this Lease to the extent permitted by the Operative Documents. This Lease may
not be changed, modified or discharged except by a writing signed by the Lessor
and the Lessee, in compliance with the requirements set forth in the
Participation Agreement. Any change, modification or discharge made otherwise
than as expressly permitted by this paragraph 24 shall be null and void. THIS
LEASE SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. This Lease, when delivered, shall constitute an original,
fully enforceable counterpart for all purposes except that only the counterpart
stamped or marked "COUNTERPART NUMBER ONE" or "COUNTERPART NUMBER 1" shall
constitute, to the extent applicable, "chattel paper" or other "collateral"
within the meaning of the Uniform Commercial Code in effect in any jurisdiction.
(b) No recourse shall be had against the Lessor, the Trustee, the
Agent, Managing Agents or any holder of any Instrument or their respective
employees, agents, beneficiaries or shareholders, for any claim based on any
failure by the Lessor in the performance or observance of any of the agreements,
covenants or provisions contained in this Lease and in the event of any such
failure, recourse shall be had solely against the Lessor's interest in the
Property; provided, however, that nothing contained in this Lease shall be taken
to prevent enforcement of any claim against the Lessor or any other Person
arising out of or in connection with this Lease based on fraud, gross negligence
or willful misconduct of any officer, director, shareholder or employee of the
Lessor and nothing shall prevent
19
23
enforcement against any other Person to which any part thereof shall have been
transferred, or obligations undertaken or assumed in writing by such Person.
25. Headings and Table of Contents. The table of contents and the
headings of the various paragraphs and Schedules of this Lease are for
convenience only and shall not affect the meaning of the terms and conditions of
this Lease.
26. Lessor's Right to Cure Lessee's Default. If the Lessee shall fail
to make any payment or perform any act required to be made or performed under
this Lease, and such failure results in an Event of Default hereunder, the
Lessor, without waiving any Default or Event of Default or releasing Lessee from
any obligation, may (but shall be under no obligation to) make such payment or
perform such act for the account and at the sole cost and expense of the Lessee,
and may enter upon the Property for such purpose and take all such action
thereon as, at the Lessor's sole discretion, may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of the Lessee. The Lessor
shall endeavor to give notice to the Lessee of any such action taken pursuant to
this paragraph 26, but its failure to do so shall not affect its rights
hereunder. All sums so paid by the Lessor and all costs and expenses (including,
without limitation, attorneys' fees and expenses so incurred, together with
interest thereon at the Default Rate to the extent permitted by Law) shall be
paid by the Lessee to the Lessor on demand as Additional Rent.
27. Expiration of the Lease.
(a) The Lessee shall give notice to the Lessor, not less than twelve
(12) months prior to the Expiration Date, if it intends to abandon the Property
as of the Expiration Date and pay to the Lessor on the Expiration Date any Basic
Rent, Additional Rent and any other amounts then due and payable to the Lessor
hereunder (and the failure to give such notice shall constitute a notice that
the Lessee will exercise its Option to Purchase the Property on the Expiration
Date (unless earlier purchased in accordance with paragraphs 14 and 15)). Upon
the giving of such notice that it intends to abandon the Property, the Lessee
shall be obliged to comply with the requirements of paragraph 27(b)(i) hereof.
The Lessee shall not be entitled to give such notice, or to abandon the
Property, if the Property is included on the CERCLIS list maintained by the U.S.
Environmental Protection Agency, unless such agency has issued a no further
action letter in connection therewith.
(b) (i) Upon the election of the Lessee to abandon the Property
pursuant to paragraph 27(a) hereof, Lessee shall provide, or cause to be
provided or accomplished, at the sole cost and expense of the Lessee, to or for
the benefit of the Lessor and the holders of the Instruments, within the time
frame specified:
(A) A Phase I environmental audit of the Property (and any
additional investigations suggested by the results of the Phase I
environmental audit), commissioned by the Lessor which shall be
completed not less than 30 days and not more than 60 days prior to the
Expiration Date, and shall be satisfactory in all respects to the
Managing Agents, the Lessor and the holders of B-Notes and
Certificates, in each case, in their sole discretion;
(B) A report of an Independent Engineer commissioned by the
Lessor shall have been completed not less than 30 days and not more
than 60 days prior to the Expiration Date, and shall be satisfactory in
all respects to the Managing Agents, the Lessor and the Majority
Holders of the B-Notes and the Certificates, in their sole
20
24
discretion, to the effect that the Property has been maintained in
accordance with the terms and conditions of the Lease and will, at the
Expiration Date, be in the condition required by the Lease;
(C) At least 30 but not more than 60 days prior to the
Expiration Date, evidence satisfactory to the Lessor and the Majority
Holders of the B-Notes and Certificates that all necessary easements,
permits, material contracts and other matters to be delivered pursuant
to the Services Agreement will be provided;
(D) Evidence satisfactory to the Lessor and the Majority
Holders of the B-Notes and Certificates that a Permanent Certificate of
Occupancy for the Improvements shall have been issued no less than nine
months prior to the Expiration Date and shall be in full force and
effect on the Expiration Date;
(E) At the Expiration Date, no Casualty or Condemnation shall
have occurred for which rebuilding and restoration pursuant to
paragraph 12(c) is not complete, and there shall be no temporary
Condemnation which extends beyond the Expiration Date; and
(F) If the Lessee has removed or made material alterations to
the Modifications after the Completion Date, not less than 30 and not
more than 60 days prior to the Expiration Date the Lessee shall deliver
an appraisal from an appraiser reasonably satisfactory to the Lessor
and the Majority Holders of the B-Notes and Certificates which shall
indicate that the fair market value of the Property at the Expiration
Date will be at least $300,000,000. If such appraisal indicates a fair
market value which is below $300,000,000 (the "Appraised Value"), such
appraisal shall also indicate what the fair market value of the
Property would have been had the Modifications remained in the
condition required on the Completion Date (ordinary wear and tear
excepted) (the "Required Value").
(ii) Upon the Lessee's election to abandon the Property pursuant to
paragraph 27(a) hereof, the Lessor shall have the sole and exclusive right to
sell or dispose of its interest in the Property and, as of the Expiration Date,
the Lessee shall have no further claim thereto except pursuant to Section 5.03
of the Declaration. The proceeds of any sale or disposition of the Lessor's
interest in the Property pursuant to this paragraph 27(b) (herein called a
"Qualified Sale") shall be applied by the Lessor as follows: first, to pay all
Closing Costs in connection with the Qualified Sale; and second, as provided in
the Declaration. If (A) the Required Value (as defined in clause (i)(F) above)
is higher than the Appraised Value (as defined in clause (i)(F) above) and (B)
the Sales Proceeds are less than the principal and stated amount of, plus
interest and yield and all other amounts due and owing with respect to, the
B-Notes and Certificates, the Lessee shall pay to Lessor funds equal to the
difference between the Sales Proceeds and such amounts due and owing with
respect to the B-Notes and Certificates, but in no case shall Lessee be required
to pay an amount exceeding the lesser of (x) the difference between the Required
Value and the Appraised Value and (y) the difference between $300,000,000 and
the Appraised Value (such payment, the "Required Value Payment").
28. Subordination. Notwithstanding anything to the contrary contained
in this Lease, this Lease and all rights of Lessee hereunder shall be, and the
same are hereby made and shall be subject and subordinate in all respects to the
lien created by, as well as to all of the terms, covenants and
21
25
conditions contained in, any and all mortgages, in whatever amount(s), on
whatever terms and conditions and without regard to the order of recordation
thereof (each such mortgage hereinafter referred to as the "Prior Mortgage"),
now or at any time hereafter affecting or encumbering the Property, including,
without limitation, any such mortgage now or hereafter granted by the Lessor on
its interest in the Property, as well as to any and all advances under, and
increases to, the Prior Mortgage, and any and all extensions, consolidations,
modifications and supplements thereto. The foregoing subordination provision
shall be self-operative and no further instrument of subordination shall be
required to effect the same. In confirmation of such subordination, the Lessee
shall promptly execute and deliver any instrument that the Lessor, the holder of
any Prior Mortgage, or any of their respective successors in interest may
reasonably request to evidence such subordination. Notwithstanding the
foregoing, the Agent may at any time elect to subordinate any one or more of the
Prior Mortgages held by the Agent to this Lease upon such terms and conditions,
and reserving such rights as the holder of such Prior Mortgages, as the Agent
desires. Any such subordination shall be effectuated by an instrument in
writing, executed by the Agent and shall be effectuated by the Agent only upon
the direction of all of the holders of the series of Instruments for whose
benefit such Prior Mortgage was granted.
29. Waiver of Trial by Jury. IN ANY ACTION OR PROCEEDING UNDER OR
RELATED TO THIS LEASE OR THE OPERATIVE DOCUMENTS OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION WITH THE FOREGOING, THE LESSOR AND THE LESSEE HEREBY AGREE THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY,
REGARDLESS OF WHICH PARTY COMMENCES SUCH ACTION OR PROCEEDING.
30. Jurisdiction. Jurisdiction hereunder shall be governed by the
provisions governing jurisdiction set forth in Section 7.20 of the Participation
Agreement, which procedures are hereby incorporated herein mutatis mutandis, by
reference, as if fully set forth herein.
31. No Merger of Title. There shall be no merger of this Lease nor of
the leasehold estate created by this Lease with the fee ownership of the
Property by reason of the fact that the same Person may acquire, own or hold,
directly or indirectly, this Lease or the leasehold estate created by this Lease
or any interest in this Lease or interest in the fee ownership of the Parcel,
and no such merger shall occur unless and until all Persons having any interest
in (x) the leasehold estate created by this Lease (y) the fee ownership of the
Property or any part thereof shall join in a written instrument effecting such
merger and shall duly record the same.
32. Further Assurances. Each party hereto agrees that it will promptly
and duly execute and deliver to the other party such documents and assurances
and take such further actions as the other party may from time to time
reasonably request to carry out more effectively the intent and purpose of this
Lease, or to establish and protect the rights and remedies created or intended
to be created hereunder in favor of any party.
33. Schedules; Exhibits. Schedules A, B and C referred to in this Lease
are hereby incorporated by reference herein.
34. Tenants in Common. At all times each tenant-in-common comprising
the Lessee under this Lease shall be jointly and severally liable for the
performance of all obligations of the Lessee hereunder, including without
limitation, the obligation to pay Basic Rent, Additional Rent and all other
amounts becoming due and payable from time to time hereunder.
22
26
IN WITNESS WHEREOF, the parties hereto have caused this Lease
to be duly executed by their respective Officers thereunto duly authorized as of
the date hereof.
STATE STREET BANK AND TRUST
COMPANY OF
CONNECTICUT, NATIONAL
ASSOCIATION, not in
its individual
capacity but solely as
Trustee of the 1993
Xxxxx Xxxxxx Office
Building Trust, as
lessor
By: /s/ Xxxxxx X. XxxXxxxxx
----------------------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Assistant Vice President
XXXXX XXXXXX INC.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Deputy Treasurer
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
SALOMON BROTHERS INC
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Deputy Treasurer
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
TRAVELERS GROUP INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
27
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Deputy Treasurer
MUTUAL MANAGEMENT CORP.
By: /s/ Xxxxxxx X. Day
----------------------------------------
Name: Xxxxxxx X. Day
Title: Treasurer
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Controller
XXXXX XXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
By: /s/ Xxx Xxxxxxx
----------------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Treasurer
XXXXX XXXXXX COMMERCIAL CORP.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
By: /s/ Xxx Xxxxxxx
----------------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Treasurer
XXXXX XXXXXX FUTURES MANAGEMENT INC.
By: /s/ Xxxxxx X. Dontuono
----------------------------------------
Name:
Title:
28
By: /s/ Xxx Xxxxxxx
----------------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Treasurer
XXXXX XXXXXX GLOBAL CAPITAL MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
By: /s/ Xxx Xxxxxxx
----------------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Treasurer
29
STATE OF MASSACHUSETTS )
) ss.:
COUNTY OF SUFFOLK )
On the 25th day of March, 1998, before me personally came
Xxxxxx X. XxxXxxxxx, to me known, who, being by me duly sworn, did depose and
say that he resides at Middleboro MA; that he is the Assistant Vice President of
State Street Bank and Trust Company of Connecticut, National Association, a
national banking association, not in its individual capacity but solely as
Trustee under a Declaration of Trust dated as of December 30, 1994, as amended;
and that he signed his name thereto by authority of the board of directors of
said national banking association.
/s/ Rose Xxxxx Xxxxxxx
----------------------------------------
Notary Public
[ROSE XXXXX XXXXXXX
Notary Public
My Commission Expires January 14, 2005]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of March, 1998, before me personally came Xxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is the Deputy Treasurer of Xxxxx Xxxxxx Inc., the corporation described in
and which executed the foregoing instrument; and that he signed his name thereto
by authority of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 015A5050058
Qualified in New York County
Commission Expires Oct. 2, 1999]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of March, 1998, before me personally came Xxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is the Deputy Treasurer of Salomon Brothers Inc, the corporation described in
and which executed the foregoing instrument; and that he signed his name thereto
by authority of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 015A5050058
Qualified in New York County
Commission Expires Oct. 2, 1999]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of March, 1998, before me personally came
Xxxxxx Xxxxx, to me known, who, being by me duly sworn, did depose and say that
he is the Treasurer of Travelers Group Inc., the corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
authority of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 015A5050058
Qualified in New York County
Commission Expires Oct. 2, 1999]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of March, 1998, before me personally came
Xxxxxxx X. Day, to me known, who, being by me duly sworn, did depose and say
that he is the Treasurer of Mutual Management Corp., the corporation described
in and which executed the foregoing instrument; and that he signed his name
thereto by authority of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 015A5050058
Qualified in New York County
Commission Expires Oct. 2, 1999]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of March, 1998, before me personally came
Xxxxxx Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is the Treasurer of Xxxxx Xxxxxx Futures Management Inc., the
corporation described in and which executed the foregoing instrument; and that
he signed his name thereto by authority of the board of directors of said
corporation.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 015A5050058
Qualified in New York County
Commission Expires Oct. 2, 1999]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of March, 1998, before me personally came Xxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is the Treasurer of Xxxxx Xxxxxx Capital Services Inc., the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by authority of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 015A5050058
Qualified in New York County
Commission Expires Oct. 2, 1999]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of March, 1998, before me personally came Xxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is the Treasurer of Xxxxx Xxxxxx Commercial Corp., the corporation described
in and which executed the foregoing instrument; and that he signed his name
thereto by authority of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 015A5050058
Qualified in New York County
Commission Expires Oct. 2, 1999]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of March, 1998, before me personally came, to
me known, who, being by me duly sworn, did depose and say that he is the
Treasurer of Xxxxx Xxxxxx Global Capital Management, Inc., the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by authority of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 015A5050058
Qualified in New York County
Commission Expires Oct. 2, 1999]
38
SCHEDULE A
Description of the Parcel
PARCEL 1
The fee of Parcel 1 and the Lease (in part) cover premises more particularly
described as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the southerly line of
Xxxxxx Street with the westerly line of Greenwich Street;
RUNNING THENCE South 21 degrees 23 minutes 00 minutes east along the westerly
line of Greenwich Street, 210.01 feet;
THENCE South 68 degrees 07 minutes 20 seconds West 140.00 feet;
THENCE South 21 degrees 52 minutes 40 seconds East 9.00 feet;
THENCE South 68 degrees 07 minutes 20 seconds West 281.89 feet to a point in the
easterly line of West Street;
THENCE North 20 degrees 04 minutes 45 seconds West along the easterly line of
West Street, 219.11 feet to the corner formed by the intersection of the
easterly line of West Street with southerly line of Xxxxxx Street;
THENCE North 68 degrees 07 minutes 20 seconds East along the southerly line of
Xxxxxx Street, 416.52 feet to the point or place of BEGINNING.
The street lines described above as shown on map entitled "Map Showing a Change
in the Street System etc. in Connection with the Washington Market Urban Renewal
Area", dated March 4, 1970, modified July 1, 1970, Acc. No. 29985, adopted by
the Board of Estimate, October 8, 1970, Cal. No. 15.
Elevations refer to Datum use by the Topographical Bureau, Borough of Manhattan,
which is 2.75 feet above United States Coast and Geodetic Survey Datum, mean sea
level, Xxxxx Hook, New Jersey.
The bearings area in the system used on the Borough Survey, Borough President's
Office, Manhattan.
PARCEL 2
The Lease in part covers premises more particularly described as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded ad described
as follows:
BEGINNING at the corner formed by the intersection of the easterly line of West
Street with the northerly line of X. Xxxxx Street;
39
RUNNING THENCE North 20 degrees 04 minutes 45 seconds West, along the easterly
line of West Street, 190.09 feet;
THENCE North 21 degrees 52 minutes 40 seconds West 9.00 feet;
THENCE North 68 degrees 07 minutes 20 seconds East 140.00 feet to a point in the
westerly line of Greenwich Street;
THENCE South 21 degrees 28 minutes 00 seconds East, along the westerly line of
Greenwich Street, 199.00 feet to the corner formed by the intersection of the
northerly line of X. Xxxxx Street with the westerly line of Greenwich Street;
THENCE South 68 degrees 07 minutes 20 seconds West, along the northerly line of
X. Xxxxx Street, 426.43 feet to the point or place of BEGINNING.
The street lines described above are as shown on map entitled "Map Showing a
Change in the Street System etc. in Connection wit the Washington Market Urban
Renewal Area", dated March 4, 1970, modified July 1, 1970, Acc. No. 29985,
adopted by the Board of Estimate, October 8, 1970, Cal. No. 15.
Elevations refer to Datum use by the Topographical Bureau, Borough of Manhattan,
which is 2.75 feet above United States Coast and Geodetic Survey Datum, mean sea
level, Xxxxx Hook, New Jersey.
The bearings area in the system used on the Borough Survey, Borough President's
Office, Manhattan.
BLANKET DESCRIPTION (PARCELS 1 AND 2)
The Lease covers premises more particularly described as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded ad described
as follows:
BEGINNING at the corner formed by the intersection of the southerly line of
Xxxxxx Street with the westerly line of Greenwich Street;
RUNNING THENCE South 21 degrees 28 minutes 00 seconds East along the westerly
line of Greenwich Street, 409.01 feet to the corner formed by the intersection
of the westerly line of Greenwich Street with the northerly line of X. Xxxxx
Street;
THENCE South 68 degrees 07 minutes 20 seconds West along the northerly line of
X. Xxxxx Street, 426.43 feet to the corner formed by the intersection of the
northerly line of X. Xxxxx Street with the easterly line of West Street;
THENCE North 20 degrees 04 minutes 45 seconds West along the easterly line of
West Street, 409.20 feet to the corner formed by the intersection of the
easterly line of West Street with the southerly line of Xxxxxx Street;
THENCE North 68 degrees 07 minutes 20 seconds East along the southerly line of
Xxxxxx Street, 416.52 feet to the point or place of BEGINNING;
00
Xxx xxxxxx lines described above are as shown on map entitled "Map Showing a
Change in the Street System etc. in Connection wit the Washington Market Urban
Renewal Area", dated March 4, 1970, modified July 1, 1970, Acc. No. 29985,
adopted by the Board of Estimate, October 8, 1970, Cal. No. 15.
Elevations refer to Datum use by the Topographical Bureau, Borough of Manhattan,
which is 2.75 feet above United States Coast and Geodetic Survey Datum, mean sea
level, Xxxxx Hook, New Jersey.
The bearings area in the system used on the Borough Survey, Borough President's
Office, Manhattan.
41
SCHEDULE B
Rent Schedule
Capitalized terms used herein and not defined herein shall
have the meanings ascribed to them in the Lease (and the other Schedules
thereto) to which this Schedule B is attached including terms defined by
reference in the Lease to the other Operative Documents.
I. Basic Rent
(A) Capitalized Cost.
The "Capitalized Cost" of the Property is equal to the sum of
the outstanding aggregate principal amounts of the A-Notes,
B-Notes and Construction Notes plus the aggregate stated
amount of the Certificates.
The "Series A Portion" shall mean that portion of the
Capitalized Cost which is equal to the sum of the aggregate
principal amount outstanding of the Construction A-Notes and
the A-Notes.
The "Series B Portion" shall mean that portion of the
Capitalized Cost which is equal to the sum of the aggregate
principal amount outstanding of the Construction B-Notes and
the B-Notes.
The "Series C Portion" shall mean that portion of the
Capitalized Cost which is equal to the aggregate stated amount
outstanding of the Certificates.
B. Basic Rent.
"Basic Rent" shall be due and payable in arrears on each
Payment Date in amounts calculated as set forth below:
(1) If the Construction Notes are exchanged on a day
which is not a regular Payment Date, Basic Rent shall
be proportionately adjusted to such date of exchange,
and any additional costs (including, without
limitation, any Break Costs) incurred by the Lessor
in connection with such exchange shall also be
payable on such date as Additional Rent under this
Lease. A certificate as to the amount of such costs
submitted to the Lessee by the Lessor shall be
conclusive and binding for all purposes, absent
manifest error.
(2) Basic Rent shall equal the sum of (A) an amount equal
to the product of the Series A Portion times the
Applicable Rate, and (B) an amount equal to the
product of the Series B Portion times the Applicable
Rate, and (C) an amount equal to the product of the
Series C Portion times the Applicable Rate; all
calculated in compliance with the Rate Calculations.
No payments in respect of Basic Rent will be due and payable to the
Lessor to the extent that payments of interest and other payments due
under or with respect to the Construction Notes are made by
Construction Advances pursuant to Section 1.05(c) of the Participation
Agreement.
42
II. Additional Rent
In addition to such Additional Rent as may otherwise be payable under the
Lease, Lessee shall pay subject to the provisions of this Lease and the
Participation Agreement, within 30 days of a demand therefor but subject in
all cases to Lessee's rights under the Operative Documents, as Additional
Rent, without duplication, all Break Costs, Funding Costs, Reserve Costs,
Increased Costs (for the period beginning 30 days before the Lessee's
receipt of the relevant holder's notice thereof) and Illegality Costs
(collectively, "Additional Costs"); provided, however, that no Additional
Rent shall be payable hereunder in respect of Increased Costs incurred by
any Certificate Purchaser which is not a bank or an affiliate of a bank.
Promptly after Lessor receives notice from any holder of Instruments of any
Additional Costs to be payable as Additional Rent Lessor shall supply (i) a
copy of the same to the Lessee; provided, however, that, other than as
provided in the first parenthetical of the preceding paragraph with respect
to Increased Costs, the failure to provide such notice as to Additional
Costs shall not affect the Lessor's right to recover Additional Rent for
the same but shall merely affect the timing of such recovery; and (ii) a
certificate in reasonable detail setting forth the basis for and the amount
of such Additional Costs submitted by the Lessor (on behalf of a holder) to
the Lessee which notice shall be conclusive and binding for all purposes,
absent manifest error.
43
SCHEDULE C
INTERESTS OF TENANTS IN COMMON
Xxxxx Xxxxxx Inc. 84.86%
Travelers Group Inc. 7.38%
Salomon Brothers Inc 5.00%
Mutual Management Corp. 2.50%
Xxxxx Xxxxxx Capital Services Inc. 0.07%
Xxxxx Xxxxxx Commercial Corp. 0.07%
Xxxxx Xxxxxx Futures Management Inc. 0.06%
Xxxxx Xxxxxx Global Capital Management, Inc. 0.06%
44
Exhibit A
Form of Memorandum of Amended and Restated Lease
STATE OF: NEW YORK
COUNTY OF: NEW YORK
Prepared by, Recording Requested by
and When Recorded Return to:
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee of the 1993
Xxxxx Xxxxxx Office Building Trust
c/o Xxxxxx X. Xxxxx, Esq.
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
MEMORANDUM OF AMENDED AND RESTATED LEASE
THIS MEMORANDUM OF AMENDED AND RESTATED LEASE (this
"Memorandum") is entered into and executed as of March 27, 1998, by and between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, not in
its individual capacity but solely in its capacity as Trustee of the 1993 Xxxxx
Xxxxxx Office Building Trust under that certain unrecorded Amended and Restated
Declaration of Trust dated as of December 30, 1994 (as amended on March 27,
1998, the "Declaration"), (the "Lessor") having its Corporate Trust Office at
x/x Xxxxx Xxxxxx Xxxx and Trust Company, X.X. Xxx 000, Xxxxxx, Xxxxxxxxxxxxx
00000, and XXXXX XXXXXX INC., a Delaware corporation, SALOMON BROTHERS INC, a
Delaware corporation, MUTUAL MANAGEMENT CORP. (formerly Xxxxx Xxxxxx Mutual
Funds Management Inc., which was a successor by merger to Mutual Management
Corp.), a New York Corporation, XXXXX XXXXXX CAPITAL SERVICES INC., a Delaware
corporation, XXXXX XXXXXX COMMERCIAL CORP., a Delaware corporation, XXXXX XXXXXX
FUTURES MANAGEMENT INC., a Delaware corporation, XXXXX XXXXXX GLOBAL CAPITAL
MANAGEMENT, INC., a Delaware corporation, and TRAVELERS GROUP INC. (formerly The
Travelers Inc.), a Delaware corporation, as tenants in common (collectively, the
"Lessee").
45
PRELIMINARY STATEMENT
Lessor is the owner of the parcels of land more particularly
described on Schedule A hereto and all easements, rights, and appurtenances
relating thereto (collectively, the "Parcel") and all structures, buildings, or
other improvements now or hereafter located on the Parcel (collectively, the
"Improvements"). Lessor leased the Parcel and the Improvements (collectively,
the "Property") to Lessee pursuant to that certain Lease, dated as of July 30,
1993 (the "Original Lease"). The Lessee and the Lessor amended and restated, in
its entirety, the Original Lease to, among other things, extend the lease term
(the "Amended and Restated Lease"). The Lessee and the Lessor wish to amend the
Amended and Restated Lease to, among other things, extend the lease term.
Lessor wishes to evidence of record in the State of New York a
memorandum of that certain unrecorded amendment to the Amended and Restated
Lease between Lessor and Lessee dated March 27, 1998 (the "Lease"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Lease.
PART I
MEMORANDUM OF LEASE
NOW, THEREFORE, the parties do hereby agree that the Lease
provides as follows:
(i) The term of the Lease is for a term commencing as of July
30, 1993 and ending on March 27, 2003, or such earlier date as provided
in the Lease;
(ii) Nothing contained in the Lease shall be considered as
constituting the consent or request of the Lessor, express or implied,
to or for the performance by any contractor, laborer, materialman, or
vendor of any labor or services or for the furnishing of any materials
for any construction, alteration, addition, repair or demolition of or
to the Property or any part thereof. NOTICE IS HEREBY GIVEN THAT THE
LESSOR IS NOT AND SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE, OR TO ANYONE
HOLDING OR POSSESSING THE PROPERTY OR ANY PART THEREOF THROUGH OR UNDER
THE LESSEE, AND THAT NO MECHANIC'S OR OTHER SIMILAR STATUTORY LIENS FOR
ANY LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE PROPERTY
OR ANY PART THEREOF.
A-2
46
PART II
MISCELLANEOUS
1. No Modification; Conflict. Nothing contained in this
Memorandum shall modify or be deemed to modify the Lease. Should any conflict
exist between the provisions of this Memorandum and the Lease, the terms and
provisions of the Lease shall govern.
2. Multiple Counterparts. The parties may sign this Memorandum
in any number of counterparts and on separate counterparts, each of which shall
be an original but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Memorandum of Lease to be duly executed by their respective officers solely for
the purposes of acknowledging and placing of record their agreements referred to
above.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Trustee of the 1993 Xxxxx Xxxxxx Office
Building Trust, as lessor
By:
------------------------------------------
Name:
Title:
XXXXX XXXXXX INC.
By:
------------------------------------------
Name:
Title:
A-3
47
SALOMON BROTHERS INC
By:
------------------------------------------
Name:
Title:
TRAVELERS GROUP INC.
By:
------------------------------------------
Name:
Title:
MUTUAL MANAGEMENT CORP.
By:
------------------------------------------
Name:
Title:
A-4
48
XXXXX XXXXXX FUTURES
MANAGEMENT INC.
By:
------------------------------------------
Name:
Title:
XXXXX XXXXXX CAPITAL SERVICES INC.
By:
-----------------------------------------
Name:
Title:
XXXXX XXXXXX COMMERCIAL CORP.
By:
------------------------------------------
Name:
Title:
XXXXX XXXXXX GLOBAL
CAPITAL MANAGEMENT, INC.
By:
------------------------------------------
Name:
Title:
A-5
49
SCHEDULE A
to Memorandum of Lease
Description of the Parcel
PARCEL 1
The fee of Parcel 1 and the Lease (in part) cover premises more particularly
described as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the southerly line of
Xxxxxx Street with the westerly line of Greenwich Street;
RUNNING THENCE South 21 degrees 23 minutes 00 minutes east along the westerly
line of Greenwich Street, 210.01 feet;
THENCE South 68 degrees 07 minutes 20 seconds West 140.00 feet;
THENCE South 21 degrees 52 minutes 40 seconds East 9.00 feet;
THENCE South 68 degrees 07 minutes 20 seconds West 281.89 feet to a point in the
easterly line of West Street;
THENCE North 20 degrees 04 minutes 45 seconds West along the easterly line of
West Street, 219.11 feet to the corner formed by the intersection of the
easterly line of West Street with southerly line of Xxxxxx Street;
THENCE North 68 degrees 07 minutes 20 seconds East along the southerly line of
Xxxxxx Street, 416.52 feet to the point or place of BEGINNING.
The street lines described above as shown on map entitled "Map Showing a Change
in the Street System etc. in Connection with the Washington Market Urban Renewal
Area", dated March 4, 1970, modified July 1, 1970, Acc. No. 29985, adopted by
the Board of Estimate, October 8, 1970, Cal. No. 15.
Elevations refer to Datum use by the Topographical Bureau, Borough of Manhattan,
which is 2.75 feet above United States Coast and Geodetic Survey Datum, mean sea
level, Xxxxx Hook, New Jersey.
The bearings area in the system used on the Borough Survey, Borough President's
Office, Manhattan.
50
PARCEL 2
The Lease in part covers premises more particularly described as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded ad described
as follows:
BEGINNING at the corner formed by the intersection of the easterly line of West
Street with the northerly line of X. Xxxxx Street;
RUNNING THENCE North 20 degrees 04 minutes 45 seconds West, along the easterly
line of West Street, 190.09 feet;
THENCE North 21 degrees 52 minutes 40 seconds West 9.00 feet;
THENCE North 68 degrees 07 minutes 20 seconds East 140.00 feet to a point in the
westerly line of Greenwich Street;
THENCE South 21 degrees 28 minutes 00 seconds East, along the westerly line of
Greenwich Street, 199.00 feet to the corner formed by the intersection of the
northerly line of X. Xxxxx Street with the westerly line of Greenwich Street;
THENCE South 68 degrees 07 minutes 20 seconds West, along the northerly line of
X. Xxxxx Street, 426.43 feet to the point or place of BEGINNING.
The street lines described above are as shown on map entitled "Map Showing a
Change in the Street System etc. in Connection wit the Washington Market Urban
Renewal Area", dated March 4, 1970, modified July 1, 1970, Acc. No. 29985,
adopted by the Board of Estimate, October 8, 1970, Cal. No. 15.
Elevations refer to Datum use by the Topographical Bureau, Borough of Manhattan,
which is 2.75 feet above United States Coast and Geodetic Survey Datum, mean sea
level, Xxxxx Hook, New Jersey.
The bearings area in the system used on the Borough Survey, Borough President's
Office, Manhattan.
BLANKET DESCRIPTION (PARCELS 1 AND 2)
The Lease covers premises more particularly described as follows:
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded ad described
as follows:
BEGINNING at the corner formed by the intersection of the southerly line of
Xxxxxx Street with the westerly line of Greenwich Street;
RUNNING THENCE South 21 degrees 28 minutes 00 seconds East along the westerly
line of Greenwich Street, 409.01 feet to the corner formed by the intersection
of the westerly line of Greenwich Street with the northerly line of X. Xxxxx
Street;
ii
51
THENCE South 68 degrees 07 minutes 20 seconds West along the northerly line of
X. Xxxxx Street, 426.43 feet to the corner formed by the intersection of the
northerly line of X. Xxxxx Street with the easterly line of West Street;
THENCE North 20 degrees 04 minutes 45 seconds West along the easterly line of
West Street, 409.20 feet to the corner formed by the intersection of the
easterly line of West Street with the southerly line of Xxxxxx Street;
THENCE North 68 degrees 07 minutes 20 seconds East along the southerly line of
Xxxxxx Street, 416.52 feet to the point or place of BEGINNING;
The street lines described above are as shown on map entitled "Map Showing a
Change in the Street System etc. in Connection wit the Washington Market Urban
Renewal Area", dated March 4, 1970, modified July 1, 1970, Acc. No. 29985,
adopted by the Board of Estimate, October 8, 1970, Cal. No. 15.
Elevations refer to Datum use by the Topographical Bureau, Borough of Manhattan,
which is 2.75 feet above United States Coast and Geodetic Survey Datum, mean sea
level, Xxxxx Hook, New Jersey.
The bearings area in the system used on the Borough Survey, Borough President's
Office, Manhattan.
iii
