EXHIBIT 10.6
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OPERATING SUBLEASE
BETWEEN
PRECISION DYNAMICS CORPORATION
AS SUB-SUBLANDLORD
AND
GRAYBAR BUILDING COMPANY
AS SUB-SUBTENANT
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Dated, as of June 1, 1964.
Affecting Premises on the Westerly side of Lexington Avenue,
253 feet 4 inches Northerly of 00xx Xxxxxx
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Recorded in the Office of the Register of the City of New York in New York
County on , 19 in Liber of Conveyances at Page .
TABLE OF CONTENTS
PAGE
ARTICLE 1.
Definitions, Demise and Initial Term .......................................... 1
ARTICLE 2.
Rent .......................................................................... 7
ARTICLE 3.
Payment of Taxes, Assessments, etc. ........................................... 13
ARTICLE 4.
Surrender ..................................................................... 19
ARTICLE 5.
Insurance ..................................................................... 21
ARTICLE 6.
Sub-sublandlords' Rights to Perform Sub-subtenant's Covenants ................. 27
ARTICLE 7.
Repairs and Maintenance of the Property ....................................... 29
ARTICLE 8.
Compliance with Laws, Ordinances, etc. ........................................ 31
ARTICLE 9.
Changes and Alterations ....................................................... 33
ARTICLE 10.
Discharge of Liens ............................................................ 37
ARTICLE 11.
Use of Property ............................................................... 38
ii TABLE OF CONTENTS
PAGE
ARTICLE 12.
Subordination to Prior Leases and Compliance Therewith ........................ 39
ARTICLE 13.
Entry on Property by Sub-sublandlord, etc. .................................... 41
ARTICLE 14.
Indemnification of Sub-sublandlord ............................................ 43
ARTICLE 15.
Damage or Destruction ......................................................... 44
ARTICLE 16.
Condemnation .................................................................. 48
ARTICLE 17.
Vault Space ................................................................... 53
ARTICLE 18.
Mortgages, Assignments, Subleases and Transfers of Sub-subtenant's Interest ... 54
ARTICLE 19.
Conditional Limitations--Default Provisions ................................... 69
ARTICLE 20.
Renewal Privileges ............................................................ 77
ARTICLE 21.
Invalidity of Particular Provisions ........................................... 80
ARTICLE 22.
Notices ....................................................................... 80
TABLE OF CONTENTS iii
PAGE
ARTICLE 23.
Condition of and Title to Property, Quiet Enjoyment ........................... 81
ARTICLE 24.
Excavation and Shoring ........................................................ 82
ARTICLE 25.
Arbitration ................................................................... 83
ARTICLE 26.
Miscellaneous ................................................................. 84
SCHEDULES:
A. Description of Grant of Term ............................................ 89
B. Description of Ground Lease ............................................. 90
C. Description of Mesne Lease .............................................. 91
D. Description of Operating Lease .......................................... 92
THIS LEASE dated as of the 1st day of June, 1964, between PRECISION
DYNAMICS CORPORATION, a
New York corporation, having an office, c/o Kahr &
Xxxxxxx & Xxxxxx at 000 Xxxx Xxxxxx, Xxx Xxxx 00, Xxx Xxxx (hereinafter called
the "Sub-sublandlord"), and Xxxxx X. Helmsley, d/b/a Graybar Building Company,
with an office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx 00, Xxx Xxxx (hereinafter called
the "Sub-subtenant");
W I T N E S S E T H :
ARTICLE 1
DEFINITIONS, DEMISE AND INITIAL TERM
That for purposes of this lease, unless the context otherwise requires:
(a) the term "Grant of Term" shall mean the instrument described
in Schedule A annexed hereto;
(b) the term "Ground Lease" shall mean the instrument described
in Schedule B annexed hereto;
(c) the term "Ground Lessor" shall mean the lessor under the
Ground Lease, and the term "Ground Lessee" shall mean the lessee under
the Ground Lease;
(d) the term "Ground Rent" shall mean the rental payable under
the Ground Lease and therein defined as the "Ground Rental";
(e) the term "Building" shall have the meaning ascribed thereto
in the Ground Lease;
(f) the term "Demised Premises" shall mean the premises in the
Borough of Manhattan, City and State of
New York, demised by the
Ground Lease, located generally on the westerly side of Lexington
Avenue (beginning at a point 253 feet 4 inches northerly of 42nd
Street) and known as the Graybar Building and
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by the street address 000 Xxxxxxxxx Xxxxxx, together with any
easements and other rights demised or otherwise provided for the
benefit of the Ground Lessee under the Ground Lease;
(g) the term "Mesne Lease" shall mean the instrument described in
Schedule C annexed hereto;
(h) the term "Landlord" shall mean the landlord under the Mesne
Lease and the term "Tenant" shall mean the tenant under the Mesne
Lease;
(i) the term "Net Rent" shall mean the net annual rental payable
under the Mesne Lease and therein defined as the "net rent";
(j) the term "Operating Lease" shall mean the instrument
described in Schedule D annexed hereto;
(k) the term "Sublessor" shall mean the landlord under the
Operating Lease and the term "Sublessee" shall mean the tenant under
the Operating Lease;
(l) the term "Basic Rent" shall mean the net an-annual fixed
rental payable under the Operating Lease and therein defined as the
"basic rent" and the term "Overage Rent" shall mean the additional
rent based on 1/3 of the annual net income derived by the Sublessee
from the leasehold estate created by the Operating Lease payable
thereunder and determined as provided in Section 2.02 thereof and
therein defined as "overage rent."
(m) the term "Sub-subtenant" shall mean the sub-subtenant named
herein, and from and after any valid assignment of the whole of
sub-subtenant's interest in this lease pursuant to the provisions
hereof, shall mean only the assignee thereof;
(n) the term "Sub-sublandlord" shall mean only the sublessee for
the time being under the Operating Lease;
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(o) the term "Railroad Company" shall mean the
New York Central
Railroad Company or its successors or assigns as grantor under the
Grant of Term;
(p) the term "subtenant" shall mean any tenant or licensee of any
space in the Demised Premises (other than Ground Lessee, Tenant,
Sublessee and Sub-subtenant); the term "sublease" shall mean any lease
(other than this lease, the Ground Lease, the Mesne Lease or the
Operating Lease) or other agreement for the use and occupancy of any
such space; the term "subrent" shall mean any rent or other charge for
such use or occupancy under a sublease; the term "existing sublease"
shall mean any sublease made before the date of this lease; and the
term "future sublease" shall mean any sublease made on or after said
date;
(q) the term "major sublease" shall mean any sub-lease having a
remaining unexpired term of six months or more or providing for a
fixed subrent at the rate of $25,000 or more per annum during any year
of the term thereof. For purposes of this definition, any two or more
subleases with the same person, as subtenant, shall be deemed to be a
single sublease providing for a fixed subrent at the aggregate rate
per annum specified in such leases;
(r) the term "term of this lease" or words of similar import
shall mean the initial term and any renewal term which has become
effective;
That Sub-sublandlord is the Sublessee under the Operating Lease; and
That Sub-sublandlord, for and in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of Sub-subtenant, its
successors and assigns, to be paid, kept and performed, does hereby demise and
lease to Sub-subtenant, and Sub-subtenant does
4
hereby take and hire from Sub-sublandlord, the Demised Premises,
SUBJECT, however, to the following:
(1) the Grant of Term;
(2) the Ground Lease;
(3) the Mesne Lease;
(4) the Operating Lease;
(5) state of facts shown on the survey made by
Xxxxxx X. Xxxxxxxxx, dated March 4, 1927, and of J. Xxxxxx Xxxxxxxxx,
dated March 28, 1944 (using lines of plot set forth in record
description) drawn and redated to June 1, 1950 by Xxxxxxx X. Xxxxxxx
and redated by Xxxx X. Xxxxxx-X. X. Xxxxxxx, Inc., as of September 18,
1953, redated November 10, 1955 by Xxxxxxx X. Xxxxxxx and redated by
Xxxxxxx X. Xxxxxxx September 18, 1958, and any additional state of
facts which an inspection and more recent accurate survey would show;
(6) easements granted to the City of
New York by instrument
recorded in the Office of the Register of the County of
New York in
Liber 193, Section 5 of Conveyances, page 38, as amended by instrument
recorded in said Register's Office in Liber 191, Section 5 of
Conveyances, page 478; and restrictive agreement recorded in said
Register's Office in Liber 3850 of Conveyances, page 488, as modified
by agreements set forth in instruments recorded, respectively, in said
Register's Office in Liber 3932 of Conveyances, page 131, and Liber
3983 of Conveyances, page 380;
(7) Impositions (as defined in Article 3 hereof), accrued or
unaccrued, fixed or not fixed;
(8) revocable nature of any rights, easements, licenses or
privileges to use vaults, areas, tunnels, ramps
5
or structures under streets, avenues or sidewalks on which the Demised
Premises abut;
(9) consents or grants prior to the date of this lease for the
erection of any structures on, under or above said streets or avenues
and grants, licenses or consents, if any, with respect to public
utility lines and equipment;
(10) right to maintain elevators from the Newsreel Theatre
beneath the Demised Premises, as provided in lease recorded in Liber
3944 of Conveyances, page 417, as modified by instrument recorded in
Liber 4407 of Conveyances, page 477;
(11) existing subleases and the rights of the subtenants
thereunder, it being intended that the leasehold estate of
Sub-subtenant created by this lease shall be subject and subordinate
to the leasehold estates of said subtenants created by said subleases,
notwithstanding the provisions of any clause in any such sublease
purporting to subordinate such sublease and the rights of the
subtenant thereunder to ground or underlying leases, and
Sub-sublandlord, subject to the provisions of Section 18.10 of the
Mesne Lease, hereby assigns to Sub-subtenant for the term of this
lease all its right, title and interest in and to such existing
subleases and the rents and profits due or to become due to
Sub-sublandlord under the provisions thereof; and Sub-subtenant hereby
agrees to perform and comply with all the obligations of the landlord
under each and every such sublease;
(12) building restrictions and regulations in resolution or
ordinance adopted by Board of Estimate and Apportionment of the City
of
New York, on July 25, 1916, and the amendments and additions
thereto, now in force;
(13) present and future zoning laws, ordinances, resolutions and
regulations of the City of
New York
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and all present and future ordinances, laws, regulations and orders of
all boards, bureaus, commissions and bodies of any municipal, county,
state or federal sovereigns now or hereafter having or acquiring
jurisdiction of the Demised Premises and the use and improvement
thereof;
(14) revocable nature of the right, if any, to maintain marquees
or signs, beyond the building lines;
(15) the effect of all present and future municipal, state and
federal laws, orders and regulations relating to subtenants, their
rights and rentals to be charged for the use of the Demised Premises
or any portion or portions thereof;
(16) violations of law, ordinances, orders or requirements that
might be disclosed by an examination and inspection or search of the
Demised Premises by any federal, state or municipal departments or
authority having jurisdiction, as the same may exist on the date of
the commencement of the term of this lease;
(17) the condition and state of repair of the Demised Premises as
the same may be on the date of the commencement of the term of this
lease;
(18) any defects of title or encumbrances of record or
encroachments, existing at the date of the commencement of the term of
this lease;
(19) Agreement dated as of July 21, 1960, between Grand Central
Building Inc., Graybar Building Associates and Graycrat Corp.,
recorded in said Register's office on August 8, 1960, in Liber 5123 of
Conveyances, page 606; and
(20) Agreement dated February 27, 1958, between Metropolitan Life
Insurance Company, Xxxxxxxx X. Wien, Xxxx & Xxxxx, Inc. and Graysler
Corporation,
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recorded in said Register's office on March 11, 1958, in Liber 5032 of
Conveyances, page 430.
TO HAVE AND TO HOLD the same, subject, as aforesaid, unto Sub-subtenant
and, subject to the provisions hereof, its successors and assigns, for an
initial term commencing on the date hereof, and expiring on May 28, 1976, unless
this lease shall sooner terminate as hereinafter provided.
This lease is made upon the following covenants, agreements, terms,
provisions, conditions and limitations, all of which Sub-subtenant covenants and
agrees to perform and observe:
ARTICLE 2
RENT
SECTION 2.01. Sub-subtenant covenants and agrees to pay to Sub-sublandlord,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, at
Sub-sublandlord's address specified in or furnished pursuant to Section 22.01
hereof, during the aforesaid initial term and any and all renewals thereof, a
net rental (hereinafter referred to as the "rent") of Four Hundred Fifty
Thousand Dollars ($450,000) annually, in equal monthly installments of
Thirty-seven Thousand Five Hundred Dollars ($37,500) each, in advance on the
first day of each calendar month, except that the installment of rent due June
1, 1964, has been paid on the execution and delivery of this lease.
SECTION 2.02. Sub-subtenant shall deposit under the terms of Section 2.05
of the Operating Lease at least one calendar month before same shall become due
under the Ground Lease, a sum or sums equal to the Ground Rent as same may be
fixed from time to time pursuant to the provisions of the Ground Lease and at
the time of making such deposit, or any portion thereof, shall procure and
forthwith
8
deliver to Sub-sublandlord the receipt of the Escrow Agent provided for in
Section 2.05 of the Operating Lease for the amount so deposited; provided,
however, that if Sublessor, pursuant to Section 2.03 of the Operating Lease,
shall require Sublessee from time to time to pay the Ground Rent directly to the
Ground Lessor on or before the due date thereof, Sub-sublandlord shall give
Sub-subtenant prompt notice of such requirement and thereafter Sub-subtenant
shall make such payment at least ten days before the due date thereof and shall
forthwith furnish to Sublessor and Sub-sublandlord proof reasonably satisfactory
to Sublessor and Sub-sublandlord of the payment thereof. To the extent that it
shall be permissible under the Ground Lease and the Mesne Lease, Sub-subtenant
may, on behalf of and without expense to Sub-sublandlord, participate in any
arbitration or other proceeding by which the Ground Rent is fixed.
SECTION 2.03. Sub-subtenant shall also deposit under the terms of
Section 2.05 of the Operating Lease, at least one calendar month before same
shall become due under the Mesne Lease, a sum or sums equal to the Net Rent, as
same may be fixed from time to time pursuant to the provisions of the Mesne
Lease, and at the time of making such deposit, or any portion thereof, shall
procure and forthwith deliver to Sub-sublandlord the receipt of said Escrow
Agent for the amount so deposited; provided, however, that if Sublessor,
pursuant to Section 2.04 of the Operating Lease, shall require Sublessee from
time to time to pay the Net Rent directly to Landlord on or before the due date
thereof, Sub-sublandlord shall give Sub-subtenant prompt notice of such
requirement and thereafter Sub-subtenant shall make such payment at least ten
days before the due date thereof and shall forthwith furnish to Sublessor and
Sub-sublandlord proof reasonably satisfactory to Sublessor and Sub-sublandlord
of the payment thereof.
SECTION 2.04. Sub-sublandlord shall forthwith on the execution of this
lease, and from time to time thereafter
9
on the selection of a new Escrow Agent, give irrevocable instructions to said
Escrow Agent that Sub-subtenant shall be entitled to the return of all sums
deposited after the date of this lease to which the Sublessee shall become
entitled under the provisions of Section 2.05 of the Operating Lease in the
event of a default by Sublessor as tenant under the Mesne Lease resulting in a
termination of the Mesne Lease or in the event of the expiration or sooner
termination of the Operating Lease, unless such default or termination shall
have resulted directly or indirectly from a default hereunder either by
Sub-subtenant or caused by any subtenant. If any of said sums to which
Sub-subtenant may become so entitled shall be received by Sub-sublandlord, it
shall hold them in trust to pay them over to Sub-subtenant.
In the event that Sub-sublandlord shall become entitled, under the
provisions of Section 2.05 of the Operating Lease, to approve the selection of
the Escrow Agent, Sub-sublandlord will not give such approval unless it shall
first notify Sub-subtenant of the attorney or attorneys selected as Escrow Agent
and Sub-subtenant either gives its approval of such selection or fails to act on
such notice within five days after receipt thereof.
SECTION 2.05. Sub-subtenant shall also pay, as additional rent during the
term of this lease, directly to Sublessor on or before the due date thereof,
the installments of Basic Rent payable from time to time pursuant to the
provisions of the Operating Lease, and shall furnish to Sub-sublandlord a
receipt by Sublessor for each such payment, or any partial payment on account
thereof, within the grace periods stipulated in Section 19.01(b) hereof.
SECTION 2.06. Sub-subtenant shall also pay, as additional rent during the
term of this lease, Overage Rent as and when the same shall become due and
payable, from time to time, pursuant to the provisions of the Operating Lease,
such Overage Rent to be computed and determined
10
as provided in Section 2.02 of the Operating Lease with the same force and with
like effect as if this lease were not in existence but as if the "annual net
income" referred to in said Section 2.02 were based on the gross income for any
calendar year derived by Sub-subtenant from the leasehold estate created by this
lease. Payment of such Overage Rent shall be made directly to Sublessor, except
that after a payment of Overage Rent has been so made to Sublessor (unless
otherwise provided in Section 2.11 hereof), one-twelfth of such payment shall be
deposited in escrow on the first day of each of the next twelve succeeding
months to be held for application to the Overage Rent, if any, which shall next
become due and payable. Such deposits shall be made with Sub-sublandlord, unless
Sub-subtenant shall elect that they shall be made with a bank or trust company
selected by Sub-subtenant whose fees and charges shall be paid by Sub-subtenant.
If there shall be no Overage Rent due at the end of any such twelve months
period, the amounts on deposit shall be refunded to Sub-subtenant and
Sub-subtenant shall not be required to make such deposits for the following
year. Promptly after making payment of Overage Rent, the party making the same
shall submit reasonably satisfactory proof of such payment to the other party,
or in the case of payment by such bank or trust company, to both parties hereto.
Sub-subtenant shall furnish to Sub-sublandlord such financial statements as are
required under Section 2.02 of the Operating Lease.
SECTION 2.07. It is the purpose and intent of Sub-sublandlord and
Sub-subtenant that the rent shall be net to Sub-sublandlord, so that this lease
shall yield, net, to Sub-sublandlord the rent specified in Section 2.01 hereof
in each year during the initial term of this lease and any and all renewals
thereof, and that all costs, expenses and charges of every kind and nature
relating to the Demised Premises (except the taxes of Landlord, Sublessor and
Sub-sublandlord referred to in Section 3.03 of Article 3
11
hereof and any payments on account of interest or principal under any mortgage
or deed of trust which shall be a lien on the fee of the premises of which the
Demised Premises are a part, or on the estate created by the Grant of Term, on
the leasehold estate created by the Ground Lease, on the leasehold estate
created by the Mesne Lease or on the leasehold estate created by the Operating
Lease), which may arise or become due during or out of the term of this lease
shall be paid by Sub-subtenant, and that Sub-sublandlord shall be indemnified
and saved harmless by Sub-subtenant from and against the same.
SECTION 2.08. The rent, Basic Rent, Overage Rent, Net Rent and Ground Rent
shall be paid or deposited without notice or demand and without abatement,
deduction or setoff, except as otherwise expressly provided in this lease.
SECTION 2.09. All sums (other than the rent, but including Basic Rent,
Overage Rent, Net Rent and Ground Rent) which may be or become due and payable
or are to be deposited by Sub-subtenant pursuant to any provision of this lease
shall be deemed to be additional rent hereunder and, except as in this lease
otherwise expressly provided, shall be paid or deposited without notice or
demand and without abatement, deduction or set-off, and, upon the failure of
Sub-subtenant to pay or deposit any such sums, then, at the option of
Sub-sublandlord, the same may be added to any installment of rent then due or
thereafter becoming due; and Sub-sublandlord shall have the same rights and
remedies in the event of the non-payment or non-deposit thereof by Sub-subtenant
as in the case of default in the payment of rent.
SECTION 2.10. All of the subrents, income, issues and profits collected by
Sub-subtenant from the Demised Premises shall be deposited in a separate bank
account in a bank or trust company selected by Sub-subtenant, and shall be
deemed trust funds to be applied, except as provided in Section 2.11 hereof, to
the payment of all of the obligations
12
of Sub-subtenant accruing under the terms of this lease during the then current
calendar year, including the Overage Rent for such calendar year. The balance,
if any, of monies so deposited during each such calendar year may not be
withdrawn by Sub-subtenant for its own use, except as otherwise provided in
Section 2.11 hereof, until the time of furnishing the financial statements under
Section 2.06 for such calendar year.
Each payment or bonus paid to Sub-subtenant in consideration of the
modification, cancellation or termination of any sublease, shall be deposited in
the aforesaid account and shall be applied as provided in the preceding
paragraph until the earlier of (i) the date of expiration of the sublease in
question, or (ii) the date on which the space covered thereby shall have been
relet to one or more subtenants having financial standing, in the aggregate,
equal to or greater than the financial standing of the subtenant under the
cancelled or terminated sublease, at a subrent or subrents aggregating not less
than the subrent payable under the cancelled or terminated sublease, when the
amount so deposited or the unapplied balance thereof may be withdrawn by
Sub-subtenant for its own use, provided there shall then be no existing Event of
Default.
SECTION 2.11. In the calendar year 1964 and in subsequent calendar years,
if Sub-subtenant shall not desire to make monthly deposits on account of Overage
Rent as provided in Section 2.06 hereof or shall desire to withdraw monies
deposited under Section 2.10 at more frequent intervals than therein provided,
Sub-subtenant may submit to Sub-sublandlord not more than 90 days after the end
of each calendar month, monthly statements of net income prepared in accordance
with the provisions of Section 2.02 of the Operating Lease, showing, on a
cumulative basis for such calendar year, the estimated Overage Rent accrued
during the month or months covered by such statement (the "minimum net income"
as such term is defined in said Section 2.02 to be prorated according
13
to the number of months covered by each such statement). If any such statement
shall disclose that after paying all rent, additional rent and other charges
hereunder, together with the expenses of operation, due and payable during the
period covered by such statement, there shall remain on deposit in the separate
bank account provided for in Section 2.10 hereof in excess of an amount
sufficient to cover the estimated Overage Rent shown as accrued by said
statement, Sub-subtenant may withdraw the excess for its own use and shall not
be required to make the deposits required under Section 2.06 hereof. If
Sub-sublandlord shall dispute any computation made in any such monthly
statement, there shall be no such withdrawal by Sub-subtenant until such dispute
shall be settled, either by agreement or by arbitration pursuant to Article 25
hereof; it being the intent of this provision that at all times the trust funds
held under Section 2.06 shall not be invaded if the ability of Sub-subtenant to
make the payments therefrom required hereunder shall be jeopardized.
SECTION 2.12. Upon request by Sub-sublandlord, all payments or deposits of
Basic Rent, Net Rent, Overage Rent, Ground Rent or tax deposits required to be
made by Sub-subtenant pursuant to Sections 2.02, 2.03, 2.05, 2.06 and 3.02
hereof shall be made by Sub-subtenant directly to Sub-sublandlord, who shall
receive such payments or deposits as a trust fund, and shall apply them to the
payments or deposits required under said sections. In such event Sub-sublandlord
shall deliver to Sub-subtenant copies of the receipts or acknowledgments which
Sub-subtenant would be required to deliver to Sub-sublandlord under said
sections.
ARTICLE 3
PAYMENT OF TAXES, ASSESSMENTS, ETC.
SECTION 3.01. Subject to the provisions of Sections 3.03 and 3.05 hereof,
Sub-subtenant shall pay or deposit, at the times and in the manner specified in
Section 3.02 of the
14
Operating Lease all amounts payable by Tenant pursuant to Section 3.01 of the
Mesne Lease in respect of taxes, charges, assessments and water and sewer rents;
and Sub-subtenant shall also pay before any fine, penalty, interest or cost may
be added thereto, or become due or be imposed by operation of law for the
nonpayment thereof, any and all other taxes, assessments, rents, rates, charges
for public utilities, excises, levies, vault and all other license and permit
fees and other governmental charges, general and special, ordinary and
extraordinary, unforeseen and foreseen, of any kind and nature whatsoever, which
at any time prior to or during the term of this lease may be assessed, levied,
confirmed, imposed upon, or grow or become due and payable out of or in respect
of, or become a lien on, the Demised Premises or any part thereof or any
appurtenance thereto, the income received from subtenants, any use or occupation
of the Demised Premises, and such franchises as may be appurtenant to the use of
the Demised Premises, this transaction or any document to which Sub-subtenant is
a party creating or transferring an interest or estate in the Demised Premises,
and any document heretofore executed and delivered creating or transferring the
interest of Landlord, Sublessor or Sub-sublandlord in the Demised Premises (all
such taxes, assessments, rents, rates, excises, levies, fees and other charges
being hereinafter referred to as "Impositions", and any of the same being
hereinafter referred to as an "Imposition").
SECTION 3.02. All Impositions payable by Sub-subtenant hereunder, other
than real estate taxes, shall be paid by Sub-subtenant (a) to Sublessor at least
fifteen days before the date on which the same shall become payable by
Sub-lessor to Landlord pursuant to Article 3 of the Mesne Lease, or (b) if
permitted by the Mesne Lease, directly to the governmental authority to which
said Imposition is payable, on or before the last day on which the same may be
paid without penalty.
15
Sub-subtenant's obligations with respect to the payment of real estate
taxes shall be discharged in the following manner: On the 1st day of each month
Sub-subtenant shall deposit with the Escrow Agent provided for in Section 2.05
of the Operating Lease a sum equal to one-twelfth of that portion of the real
estate taxes for the then current tax year which is required to be paid pursuant
to the Mesne Lease or, in the event that the amount of such real estate taxes
shall not then have been fixed, such deposit shall be based upon real estate
taxes for the preceding tax year, all as required by Section 3.02 of the
Operating Lease. At the time of making any such deposit, Sub-subtenant shall
procure and forthwith deliver to Sub-sublandlord the receipt of said Escrow
Agent for the amount deposited. Sub-sublandlord will furnish to Sub-subtenant,
promptly after receipt thereof, the proof of payment of the portion of real
estate taxes payable under Article 3 of the Mesne Lease furnished to
Sub-sublandlord by the Escrow Agent. In the event that the accumulated monthly
deposits shall be insufficient to pay any portion of such real estate taxes
under the Mesne Lease at least thirty days prior to the date when the same shall
become due and payable thereunder, Sub-subtenant shall, immediately upon demand
by Sub-sublandlord, deposit with the Escrow Agent an additional sum which, when
added to such accumulated deposits, shall be sufficient to pay such real estate
taxes. Any excess of such deposits in the hands of the Escrow Agent immediately
after such payment under the Mesne Lease shall be credited on account of the
next monthly deposit.
SECTION 3.03. Nothing herein contained shall require Sub-subtenant to pay
income or gross receipts taxes or corporation franchise or excess profits taxes
or estate, inheritance, succession or transfer taxes or capital levies assessed
against or imposed upon Landlord, Sublessor or Sub-sublandlord; provided,
however, that if at any time during the term of this lease the methods of
taxation prevailing
16
at the commencement of the term hereof shall be altered so as to cause the whole
or any part of the taxes, assessments, levies, impositions or charges now or
hereafter levied, assessed or imposed on real estate and the improvements
thereon to be levied, assessed and imposed wholly or partially on the rents
received therefrom, or to be measured by or based, in whole or in part, upon the
Demised Premises and imposed upon Landlord, Sublessor or Sub-sublandlord, then
all such taxes, assessments, levies, impositions or charges, or the part thereof
so levied, assessed, imposed, measured or based, shall be deemed to be included
within the term "Impositions" for the purposes hereof, to the extent that such
Impositions would be payable if the leasehold estates in the Demised Premises
created by the Ground Lease, the Mesne Lease and the Operating Lease were the
only property of Landlord, Sublessor and Sub-sublandlord, respectively, subject
to such Impositions, and Sub-subtenant shall pay and discharge the same as
herein provided in respect of the payment of Impositions.
Nothing herein shall require Sub-subtenant to pay any portion of the
Impositions in respect of the Demised Premises which shall be payable by the
Ground Lessor except to the extent that Sublessor, as Tenant under the Mesne
Lease, shall be obligated to pay, or reimburse the Landlord thereunder for the
payment of, the same.
SECTION 3.04. If Sublessor, pursuant to Section 3.04 of the Operating
Lease, shall require Sublessee, from time to time, in lieu of making monthly
deposits pursuant to Section 3.02 of the Operating Lease, to pay directly to the
Ground Lessor on or before the due date thereof all amounts payable to Ground
Lessor in respect of Impositions pursuant to Paragraph First of the Ground
Lease, Sub-sublandlord shall give Sub-subtenant prompt notice of such
requirement and thereafter Sub-subtenant will make like monthly deposits with
Sub-sublandlord, or with a bank or trust company selected by Sub-sublandlord and
17
whose fees and charges shall be paid by Sub-subtenant. Such deposits shall be
applied to the making of such payments and Sublessor and Sub-subtenant (and also
Sub-sublandlord if it shall not have been the recipient of such deposits)
promptly after payment thereof, shall be furnished with receipts for all
Impositions so paid pursuant to this Article to persons other than Sublessor.
Sub-sublandlord will deliver to Sub-subtenant copies of any bills or notices
received by Sub-sublandlord with respect to any Impositions payable by
Sub-subtenant. To the extent that same is permissible under the Ground Lease,
the Mesne Lease and the Operating Lease, Sub-subtenant may, at its sole cost and
expense, participate on behalf of Sub-sublandlord in any arbitration proceeding
held pursuant to Paragraph First of the Ground Lease for the purpose of
determining the proportion of any Imposition payable by the Ground Lessor, and
the portion thereof payable by the Ground Lessee.
SECTION 3.05. Sub-subtenant shall have the right to contest the amount or
validity, in whole or in part, of any Imposition by appropriate proceedings
diligently conducted in good faith and (if payment of such Imposition would
operate as a bar to such contest or interfere materially with the prosecution
thereof) may postpone or defer payment of such Imposition, provided that
(a) neither the Demised Premises nor any part thereof would, by
reason of such postponement or deferment, be in danger of being
forfeited or lost,
(b) such contest (if in respect of any Imposition payable under
the Mesne Lease) shall be permitted by the Mesne Lease and
Sub-subtenant shall furnish all security and indemnities as are
required under the Mesne Lease to be furnished by Tenant under such
circumstances,
(c) such postponement or deferment (if in respect of any
Imposition payable under the Mesne Lease)
18
will entitle Sublessor, as Tenant, to a corresponding postponement or
deferment under the Mesne Lease, and
(d) in case of any such postponement or deferment, Sub-subtenant
shall have deposited with Sublessor the amount so contested and
unpaid, together with all interest and penalties in connection
therewith and all charges that may or might be assessed against or
become a charge on the Demised Premises or any part thereof in such
proceedings, or shall have furnished to Sublessor security reasonably
satisfactory to Sublessor sufficient to cover said amount, interest,
penalties and charges.
Upon the termination of any such proceedings, Sub-subtenant shall pay the
amount of such Imposition or part thereof as finally determined in such
proceedings, the payment of which may have been deferred during the prosecution
of such proceedings, together with any costs, fees, interest, penalties or other
liabilities in connection therewith, and, upon such payment, Sub-sublandlord
shall return, without interest, any amount deposited with Sub-lessor and
returned by it to Sub-sublandlord with respect to such Imposition as aforesaid,
or, at the written request of Sub-subtenant, Sub-sublandlord shall cause
Sublessor to make available to Sub-subtenant, upon such reasonable conditions as
Sublessor may prescribe, the amount of such deposit for the making of such
payment as aforesaid. If, at any time during the continuance of such
proceedings, Sublessor shall deem any amount deposited as aforesaid
insufficient, Sub-subtenant shall, upon demand by Sub-sublandlord, make an
additional deposit, as aforesaid, of such additional sum as Sublessor may
request of Sub-sublandlord, and upon failure of Sub-subtenant so to do, the
amount theretofore deposited may be applied by Sublessor to the payment, removal
and discharge of such Imposition, and the interest and penalties in connection
therewith
19
and any costs, fees or other liability accruing in any such proceedings, and the
balance, if any, returned to Sub-sublandlord shall be turned over to
Sub-subtenant.
SECTION 3.06. Sub-sublandlord shall not be required to join in any
proceedings referred to in Section 3.05 hereof unless the Mesne Lease or the
Operating Lease or the provisions of any applicable law, rule or regulation at
the time in effect shall require that such proceedings be brought by and/or in
the name of Sub-sublandlord, in which event Sub-sublandlord shall join in such
proceedings or permit the same to be brought in its name. Sub-sublandlord shall
not ultimately be subjected to any liability for the payment of any costs or
expenses in connection with any such proceeding, and Sub-subtenant shall
indemnify and save harmless Sub-sublandlord from any such costs and expenses.
Sub-subtenant, if not in default hereunder, shall be entitled to any refund of
any Imposition and penalties or interest thereon received by Sub-sublandlord,
either directly or from Sublessor, which have been paid by Sub-subtenant, or
which have been paid by Sub-sublandlord but previously reimbursed in full by
Sub-subtenant, and which, in either event, shall not be payable to the Ground
Lessor.
SECTION 3.07. Sub-sublandlord will promptly deliver to Sub-subtenant any
xxxx that may have been rendered to Sub-sublandlord with respect to Impositions
and the portion thereof payable by Sub-subtenant pursuant hereto.
ARTICLE 4
SURRENDER
SECTION 4.01. On the last day of the term hereof or upon any earlier
termination of this lease, or upon any re-entry by Sub-sublandlord upon the
Demised Premises pursuant to Article 19 hereof, Sub-subtenant shall surrender
20
the Demised Premises, together with all fixtures and articles of personal
property attached to or used in the operation thereof, into the possession and
use of Sub-sublandlord without delay and, subject to the provisions of
Section 15.03 hereof, in good order, condition and repair, reasonable wear and
tear excepted, free and clear of all lettings and occupancies other than
subleases permitted by this lease and any existing subleases and free and clear
of all liens and encumbrances other than those, if any, permitted by this lease
or created or consented to by Sub-sublandlord.
SECTION 4.02. Where furnished by or at the expense of any subtenant,
furniture, trade fixtures and business equipment (not constituting part of the
Demised Premises) may be removed by such subtenant at or prior to the
termination of its sublease, provided, however, that the removal thereof will
not contravene the provisions of the Ground Lease, the Mesne Lease or the
Operating Lease and that Sub-subtenant shall with due diligence, and without
expense to Sub-sublandlord, cause the Building to be promptly restored to its
condition prior to such removal and cause any injury due to such removal to be
promptly repaired.
SECTION 4.03. Any personal property of Sub-subtenant or any subtenant which
shall remain in the Building after the termination of this lease or any sublease
and the removal of Sub-subtenant or such subtenant from the Building, may, at
the option of Sub-sublandlord be deemed to have been abandoned by Sub-subtenant
or such subtenant and either may be retained by Sub-sublandlord as its property
or be disposed of, without accountability, in such manner as Sub-sublandlord may
see fit.
SECTION 4.04. Sub-sublandlord shall not be responsible for any loss or
damage occurring to any property owned by Sub-subtenant or any subtenant.
SECTION 4.05. The provisions of this Article 4 shall survive any
termination of this lease.
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ARTICLE 5
INSURANCE
SECTION 5.01. Sub-subtenant, at its sole cost and expense, shall keep the
Building insured, during the term of this lease, against loss or damage by fire,
lightning, wind-storm, hail, explosion, riot and civil commotion, aircraft and
vehicles and smoke, and all other available extended coverage (with provisions
for deduction of not more than $50) in an amount which is not less than 100% of
the replacement value of the Building, without any deduction being made for
depreciation, to the extent such insurance is available. Such replacement value
shall be determined from time to time, but not more frequently than once in any
24 consecutive calendar months, at the request of Sub-sublandlord, by one of the
insurers or, at the option of Sub-sublandlord by an appraiser, architect or
contractor who shall be reasonably acceptable to Landlord, Sublessor,
Sub-sublandlord and Sub-subtenant. No omission on the part of Sub-sublandlord to
request any such determination shall relieve Sub-subtenant of its obligation
hereunder.
SECTION 5.02. Sub-subtenant, at its sole cost and expense, shall maintain:
(a) comprehensive general public liability insurance against
claims for bodily injury, death or property damage, occurring thereon,
in or about the Demised Premises or the elevators or any escalator
therein and on, in or about the adjoining streets, property and
passageways, such insurance to afford minimum protection, during the
term of this lease, of not less than $500,000 in respect of bodily
injury or death to any one person, and of not less than $2,000,000 in
respect of any one accident, and of not less than $100,000 for
property damage;
22
(b) boiler insurance, provided the Building contains a boiler,
and, if requested by Sublessor, plate glass insurance;
(c) war risk insurance upon the Building as and when such
insurance is obtainable from the United States of America, or any
agency or instrumentality thereof, in an amount equal to the lesser of
the full replacement value thereof or the maximum amount of such
insurance obtainable;
(d) rent insurance against loss of rent due to the risks referred
to in Section 5.01 hereof (including those embraced by available
extended coverage) in an amount sufficient to prevent Sub-sublandlord
(and Sub-subtenant, if named as an insured) from being a co-insurer
within the terms of the policy or policies in question, but in any
event in an amount not less than the rent, Basic Rent, Net Rent,
Ground Rent and all estimated Overage Rent and other additional rent
hereunder, for eighteen months; and in the even that the Building
shall be destroyed or seriously damaged, Sub-subtenant shall cause to
be deposited with Sublessor so much of the proceeds of such insurance
as shall equal the Basic Rent, Net Rent and other additional rent
under the Operating Lease for one year and shall deposit the balance
of such proceeds with Sub-sublandlord for application to the payment
of the rent hereunder. Sublessor may deposit with Landlord, out of the
insurance proceeds so deposited with Sublessor, the amount required to
be deposited by Sublessor, as Tenant, under Section 5.02(d) of the
Mesne Lease, to be held and applied by Landlord in the manner therein
provided, and the balance of such proceeds less such amount as shall
be necessary, with the portion of said proceeds theretofore deposited
with Sub-sublandlord, to equal the rent payable for a
23
period of twelve months (which amount shall be paid to and held and
applied by Sub-sublandlord as herein provided), shall be held and
applied by Sublessor on account of the payment of such Basic Rent and
additional rent under the Operating Lease until the restoration of the
Building, at which time, provided Sub-subtenant is not then in
default, the balance, if any, of such deposit, returned by Sublessor
to Sublessee and any unapplied sums retained by Sub-sublandlord shall
be returned to Sub-subtenant; and
(e) such other insurance, and in such amounts, as may from time
to time be reasonably required by Sub-sublandlord against other
insurable hazards which at the time are commonly insured against in
the case of premises similarly situated, due regard being given to the
height and type of building, its construction, use and occupancy.
Sub-subtenant shall not violate or permit to be violated any of the
conditions or provisions of any policy provided for in Sections 5.01 or 5.02
hereof and Sub-subtenant shall so perform and satisfy the requirements of the
companies writing such policies that at all times companies of good standing
satisfactory to Sub-sublandlord shall be willing to write and/or to continue
such insurance.
SECTION 5.03. Sub-subtenant may effect for its own account any insurance
not required under the provisions of this lease, but any insurance effected by
Sub-subtenant on the Building, whether or not required under this Article 5,
shall be for the benefit of Landlord, Sublessor, Sub-sublandlord and
Sub-subtenant, and, if required by Sublessor, any leasehold mortgagee of the
Mesne Lease, and, if required by Sub-sublandlord, any leasehold mortgagee of the
Operating Lease, and shall be subject to all other provisions of this Article 5
and of Article 15 hereof. Sub-subtenant shall promptly and notify
Sub-sublandlord of the issuance of any such insurance.
24
SECTION 5.04. All insurance provided for in this Article 5 shall be
effected under valid and enforceable policies issued by insurers of recognized
responsibility which are licensed to do business in the State of
New York, are
well rated by national rating organizations, and have been approved in writing
by Landlord, by Sublessor and by Sub-sublandlord (such approval not to be
unreasonably withheld) and, in the case of insurance provided for in Section
5.01 hereof, by the Ground Lessor. Upon the execution of this lease, and
thereafter not less than twenty days prior to the expiration dates of the
expiring policies theretofore furnished pursuant to this Article 5 or Article 9
hereof, originals of the policies, bearing notations evidencing the payment of
premiums or accompanied by other evidence satisfactory to Landlord, to Sublessor
and to Sub-sublandlord of such payment, shall be delivered by Sub-subtenant to
Sub-sublandlord. Said policies shall be held by Sub-sublandlord, or at its
option, may be delivered to and deposited with the Landlord, the Ground Lessor
or Sub-lessor. Upon request by Sub-sublandlord, Sub-subtenant shall furnish one
or more duplicate copies of any policy.
If permitted by Landlord under the Mesne Lease, any insurance provided for
in this Article 5 may be effected by a policy or policies of blanket insurance,
provided however that either (a) any such policy or policies of blanket
insurance shall specify therein, or (b) Sub-subtenant shall furnish
Sub-sublandlord with a written statement from the insurers under such policy or
policies specifying, the amount of the total insurance allocated to the Demised
Premises; and provided further, that in all other respects, any such policy or
policies shall comply with the other provisions of this lease.
SECTION 5.05. All policies of insurance provided for in Sections 5.01 and
5.02 hereof shall name Landlord, Sublessor, Sub-sublandlord and (in the case of
those provided for in Section 5.01) the Ground Lessor, as the insureds, as
25
their respective interests may appear. Subject to the provisions of the Ground
Lease, such policies may also name Sub-subtenant as an insured, as its interest
may appear, and may be made payable, subject to the provisions of this lease, to
any leasehold mortgagee of this lease, the Mesne Lease or the Operating Lease,
as their interests may appear, pursuant to a standard mortgagee clause. The
loss, if any, under any policies provided for in such Section 5.01 and in
paragraphs (c) and (e) of Section 5.02 shall be adjusted with the insurance
companies by (a) Sub-subtenant, in the case of any particular casualty resulting
in damage or destruction not exceeding $100,000 in the aggregate, or (b)
Landlord, Sublessor, Sub-sublandlord, Sub-subtenant, and any leasehold mortgagee
of this lease, the Mesne Lease or the Operating Lease, in the case of any
particular casualty resulting in damage or destruction exceeding $100,000 but
not exceeding $250,000 in the aggregate, or (c) by Landlord and (to the extent
required or permitted by the Ground Lease and the Mesne Lease) by the Ground
Lessor, Sublessor, Sub-sublandlord, Sub-subtenant, and/or any leasehold
mortgagee of this lease, the Mesne Lease and/or the Operating Lease, as their
respective interests may appear in the case of any particular casualty resulting
in damage or destruction exceeding $250,000 in the aggregate. The proceeds of
any such insurance, as so adjusted, shall be payable:
(i) to Sub-subtenant, in the case of any particular casualty
resulting in damage or destruction not exceeding $100,000 in the
aggregate, or
(ii) to Landlord (or, at Sublessor's election, to an insurance
trustee which shall be a bank or trust company which is a member of
the New York Clearing House Association, selected by Sublessor as
provided in Section 5.05 of the Operating Lease, and whose charges
shall be paid by Sub-subtenant), for the purposes set forth in Article
15, in the case of any particular
26
casualty resulting in damage or destruction exceeding $100,000, but
not exceeding $250,000, in the aggregate, or
(iii) in the case of any particular casualty resulting in damage
or destruction exceeding $250,000 in the aggregate, either (A) to the
insurance trustee designated pursuant to Paragraph Seventh of the
Ground Lease in the case of proceeds of insurance provided for in
Section 5.01 hereof or (B) to Landlord (or, at Sublessor's election,
to an insurance trustee selected as provided in clause (iii) of
Section 5.05 of the Operating Lease), for the purposes set forth in
Article 15 hereof, in the case of proceeds of insurance provided for
in Section 5.02 hereof.
All such policies shall provide that the loss, if any, thereunder shall be
adjusted and paid as hereinabove provided. Each such policy shall contain (if
obtainable) a provision that no act or omission of Sub-subtenant shall affect or
limit the obligation of the insurance company to pay to Landlord, Sublessor and
Sub-sublandlord the amount of any loss sustained and an agreement by the insurer
that such policy shall not be cancelled without at least ten days' prior written
notice to Landlord, Sublessor, Sub-sublandlord and (in the case of policies
provided for in Section 5.01) the Ground Lessor.
SECTION 5.06. If, at any time during the term of this lease,
Sub-sublandlord shall request that the amount of liability insurance provided by
Sub-subtenant, as required by Section 5.02 hereof and paragraph (g) of Section
9.01 hereof, be increased on the ground that such coverage is inadequate
properly to protect the interest of Sub-sublandlord, or if Sub-sublandlord shall
require other insurance pursuant to the provisions of paragraph (e) of Section
5.02 hereof and Sub-subtenant shall refuse to comply with any such request or
requirement, the dispute shall be submitted
27
to arbitration as provided in Article 25 hereof. Sub-subtenant shall thereafter
carry the amount, and such kind, of insurance as determined by such arbitration
to be adequate and required, but in no event shall the amount of public
liability insurance be less than the amounts specified in Section 5.02 hereof
and in paragraph (g) of Section 9.01 hereof.
SECTION 5.07. Upon the expiration of this lease, the unearned premiums upon
any transferable insurance policies lodged with Sub-sublandlord by Sub-subtenant
shall be apportioned, if Sub-subtenant shall not then be in default in the
performance of any of Sub-subtenant's covenants, agreements and undertakings in
this lease.
SECTION 5.08. Upon request of Sub-Subtenant, Sub-sublandlord will request
Sublessor to designate an insurance trustee as provided in Section 5.05 of the
Operating Lease and will also request that Sublessor select as such insurance
trustee such bank or trust company which is a member of the New York Clearing
House Association as shall be specified by Sub-sublandlord in such request.
ARTICLE 6
SUB-SUBLANDLORD'S RIGHTS TO PERFORM SUB-SUBTENANT'S
COVENANTS
SECTION 6.01 If Sub-subtenant shall at any time fail to pay any Imposition
in accordance with the provisions of Article 3 hereof, or to pay for or maintain
any of the insurance policies provided for in Article 5 hereof, or to make any
other payment or perform any other act on its part to be made or performed
hereunder, then Sub-sublandlord, after ten days' notice to Sub-subtenant (or, if
necessary to avoid a default under the Mesne Lease after five days' notice, or,
in case of any emergency, on such notice, or without notice, as may be
reasonable under the
28
circumstances) and without waiving, or releasing Sub-subtenant from, any
obligation of Sub-subtenant hereunder, may (but shall not be required to):
(a) pay any Imposition payable by Sub-subtenant pursuant to the
provisions of Article 3 hereof, or
(b) pay for and maintain any of the insurance policies provided
for in Article 5 hereof, or
(c) make any other payment or perform any other act on
Sub-subtenant's part to be made or performed as in this lease
provided,
and may enter upon the Demised Premises for the purpose and take all such action
thereon as may be necessary therefor.
SECTION 6.02. All sums so paid by Sub-sublandlord and all costs and
expenses incurred by Sub-sublandlord in connection with the performance of any
such act (together with interest thereon at the rate of 6% per annum from the
respective dates of Sub-sublandlord's making of each such payment or incurring
of each such cost and expense) shall constitute additional rent payable by
Sub-subtenant under this lease and shall be paid by Sub-subtenant to
Sub-sublandlord on demand, and Sub-sublandlord shall not be limited in the proof
of any damages which Sub-sublandlord may claim against Sub-subtenant arising out
of or by reason of Sub-subtenant's failure to provide and keep in force
insurance as aforesaid, to the amount of the insurance premium or premiums not
paid or incurred by Sub-subtenant and which would have been payable upon such
insurance, but Sub-sublandlord shall also be entitled to recover as damages for
such breach, the uninsured amount of any loss (to the extent of any deficiency
in the insurance required by the provisions of this lease), damages, costs and
expenses of suit suffered or incurred by reason of damage to, or destruction of,
the Demised
29
Premises, occurring during any period when Sub-subtenant shall have failed or
neglected to provide insurance as aforesaid. However, any amount so recovered by
the Sub-sublandlord for damages to the Demised Premises shall be subject to the
provisions of Article 15 hereof.
ARTICLE 7
REPAIRS AND MAINTENANCE OF THE PROPERTY
SECTION 7.01. During the term of this lease, Sub-subtenant, at its sole
cost and expense, will take good care of the Building (including the fixtures
and facilities therein), and the sidewalks, driveways and curbs adjoining the
Building and will maintain and keep the same in good order and condition, and
make all necessary repairs thereto, interior and exterior, structural and
non-structural, ordinary and extraordinary, and foreseen and unforeseen, unless
prohibited by the Ground Lease and not consented to by Ground Lessor. When used
in this Article 7, the term "repairs" shall include all necessary replacements,
renewals, alterations, additions and betterments. All repairs made by
Sub-subtenant shall be equal in quality and class to the original work. Nothing
in this Section contained shall obligate Sub-subtenant to repair any portion of
the Building excepted from the Demised Premises if and to the extent that the
Ground Lessor is obligated under the Ground Lease to make such repairs at its
own cost and expense without reimbursement from Landlord as Ground Lessee.
SECTION 7.02. The necessity for and adequacy of repairs to the Building
pursuant to Section 7.01 hereof shall be measured by the standard which is
appropriate for buildings of similar construction and class, provided that
Sub-subtenant shall in any event make all repairs required to be made by the
Sublessee under the Operating Lease.
30
SECTION 7.03. Sub-subtenant shall maintain all portions of the Building and
the adjacent sidewalks, driveways and curbs in a clean and orderly condition,
free of dirt, rubbish, snow, ice and unlawful obstructions; provided, however,
that Sub-subtenant shall not be responsible for the maintenance, lighting,
cleaning and policing of the passageway extending from Lexington Avenue to the
Grand Central Terminal building, but Sub-subtenant shall pay to Sublessor (or,
on Sublessor's written request, to the Railroad Company), promptly upon
rendition of bills therefor, the portion of the expense of such maintenance,
lighting, cleaning and policing which Sublessor is required to pay as Tenant
under the Mesne Lease.
SECTION 7.04. Sub-sublandlord shall not be required to furnish any services
or facilities, or to make any repairs or alterations, in or to the Building,
Sub-subtenant hereby assumes full responsibility for the condition, operation,
repair, replacement, maintenance and management of the Building except to the
extent that (in the case of portions thereof excepted from the Demised Premises)
the Ground Lessor is responsible therefor under the Ground Lease. Sub-subtenant
is and shall be in exclusive control and possession of the Demised Premises as
provided herein, and Sub-sublandlord shall not in any event whatsoever be liable
for any injury or damage to any property or to any person happening on or about
the Demised Premises, nor for any injury or damage to the Demised Premises, nor
to any property of Sub-subtenant, or of any other person contained therein. The
provisions hereof permitting Sub-Sublandlord to enter and inspect the Demised
Premises are made for the purpose of enabling Sub-sublandlord to be informed as
to whether Sub-subtenant is complying with the agreements, terms, covenants and
conditions hereof, and to do such acts as Sub-subtenant shall fail to do.
31
SECTION 7.05. During the initial term of this lease, Sub-subtenant shall,
upon written request of Landlord, appoint from a list submitted by Landlord of
at least four real estate firms specializing in the management and operation of
high grade office buildings in the Borough of Manhattan, one such firm to act as
its agent in the management of the Demised Premises. After any such appointment
of an agent, upon thirty days' notice from Landlord, Sub-subtenant shall replace
any such agent by appointment of another from a list of at least six such firms
submitted by Landlord. Sub-subtenant may at any time substitute or replace such
appointed agent with any other agent selected from the last-furnished list.
ARTICLE 8
COMPLIANCE WITH LAWS, ORDINANCES, ETC.
SECTION 8.01. During the term of this lease, Sub-subtenant, at its sole
cost and expense, shall promptly comply with all present and future laws,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governments, courts, departments, commissions, boards and
officers, any national or local Board of Fire Underwriters, or any other body
exercising functions similar to those of any of the foregoing, foreseen or
unforeseen, ordinary as well as extraordinary, which may be applicable to the
Demised Premises and the sidewalks, curbs and vaults adjoining the Demised
Premises or to the use or manner of use of the Demised Premises or the owners,
tenants or occupants thereof, whether or not such law, ordinance, order, rule,
regulation or requirement shall necessitate structural changes or improvements,
or the removal of any encroachments or projections, ornamental, structural or
otherwise, onto or over the streets adjacent to the Demised Premises, or onto or
over other property contiguous or adjacent thereto.
32
SECTION 8.02. Sub-subtenant shall have the right to contest by appropriate
proceedings diligently conducted in good faith, in the name of Landlord,
Sublessor, Sub-sublandlord, or any of them, without cost or expense to Landlord,
Sublessor or Sub-sublandlord, the validity or application of any law, ordinance,
order rule, regulation or requirement of the nature referred to in Section 8.01
hereof, provided that such contest shall be permitted by the Ground Lease, the
Mesne Lease and the Operating Lease and Sub-subtenant shall have furnished to
the Ground Lessor and Landlord such indemnities as may be required by the terms
of the Ground Lease and to Sub-sublandlord such further indemnities as
Sub-sublandlord may reasonably require. If by the terms of any such law,
ordinance, order, rule, regulation or requirement, compliance therewith pending
the prosecution of any such proceeding may legally be delayed without the
incurrence of any lien, charge or liability of any kind against the Demised
Premises or Sub-sublandlord's or Sub-subtenant's leasehold interest therein and
without subjecting Landlord, Sublessor or Sub-sublandlord to any liability,
civil or criminal, for failure so to comply therewith, Sub-subtenant may delay
compliance therewith until the final determination of such proceeding. If any
lien, charge or civil liability would be incurred by reason of any such delay,
Sub-subtenant, nevertheless, with the prior written consent of Landlord,
Sublessor and of Sub-sublandlord (such consent of Sub-sublandlord not to be
unreasonably withheld), may contest as aforesaid and delay as aforesaid,
provided that such delay would not subject Landlord, Sublessor or
Sub-sublandlord to criminal liability and Sub-subtenant (i) furnishes to
Landlord, to Sublessor, and to Sub-sublandlord security, satisfactory to
Landlord and Sublessor and reasonably satisfactory to Sub-sublandlord, against
any loss or injury by reason of such contest or delay, and (ii) prosecutes the
contest with due diligence.
Neither Landlord, Sublessor nor Sub-sublandlord shall be required to join
in any proceedings referred to in this Section unless the Ground Lease, the
Mesne Lease, the
33
Operating Lease or the provisions of any applicable law, rule or regulation at
the time in effect shall require that such proceedings be brought by and/or in
the name of Landlord and/or in the name of Sublessor and/or in the name of
Sub-sublandlord in which event Sub-sublandlord shall join in such proceedings or
permit the same to be brought in its name and/or require Sublessor to, or to
cause Landlord to, do likewise.
SECTION 8.03. Without limiting the generality of the foregoing provisions
of this Article 8 or the provisions of Article 7 hereof:
(a) Sub-subtenant shall not suffer, allow or permit the loading
of any of the floors of the Building, or any portion or portions
thereof, beyond the weights permitted by the building ordinances of
the City of New York, as changed from time to time during the term of
this lease by orders of the municipal authorities having or asserting
jurisdiction in the premises;
(b) Sub-subtenant shall not construct or allow or permit to be
constructed any advertising signs upon the roof, walls or windows of
the Building or any lettering upon the windows, nor shall
Sub-subtenant permit the windows above the floor next above the ground
floor, or the windows, if any, in the spaces adjoining the passageway
from Lexington Avenue to the Grand Central Terminal building, to be
used for advertising or display purposes, without in each case the
written consent of Landlord, and (if required by the Ground Lease) the
written consent of the Ground Lessor first had and obtained.
ARTICLE 9
CHANGES AND ALTERATIONS
SECTION 9.01. Sub-subtenant will make no alterations or changes in the
Building or any part thereof, except in compliance with the provisions of
Paragraph Sixth of the
34
Ground Lease, and all matters requiring the consent or approval of the Ground
Lessor thereunder shall also require the consent or approval of Landlord,
Sublessor and Sub-sublandlord. Sublessor having agreed with Sub-sublandlord
that its consent or approval shall not be unreasonably withheld,
Sub-sublandlord hereby agrees upon request of Sub-subtenant to request such
consent or approval of Sublessor and further agrees that Sub-sublandlord's
consent or approval shall not be unreasonably withheld. In addition to, and
without limiting the generality of, the foregoing, Sub-subtenant covenants and
agrees that:
(a) No change or alteration, involving an estimated cost of more
than $100,000, including any restoration required by Articles 15 or 16
hereof, shall be made without the prior written consent of Landlord,
Sublessor and Sub-sublandlord. Sublessor having agreed with
Sub-sublandlord that its consent will not be withheld if the change or
alteration would not in the reasonable opinion of Sublessor impair the
value, rental value, rentability or usefulness of the Building or any
part thereof, Sub-sublandlord agrees upon request of Sub-subtenant to
request such consent of Sublessor and further agrees that
Sub-sublandlord's consent thereto shall not be unreasonably withheld.
(b) No change or alteration shall be undertaken until
Sub-subtenant shall have procured and paid for, so far as the same may
be required from time to time, all permits and authorizations of all
municipal departments and governmental subdivisions having
jurisdiction. Sub-sublandlord shall join in the application for such
permits or authorizations whenever such action is necessary, and shall
request Sublessor and Landlord to do likewise, but without any
liability or expense to Landlord, to Sublessor or to Sub-sublandlord.
(c) No structural change or alteration shall be made except in
accordance with plans and specifications
35
approved in writing by the Ground Lessor, Landlord, Sublessor and
Sub-sublandlord. Sublessor having agreed with Sub-sublandlord that its
approval shall not be unreasonably withheld, Sub-sublandlord agrees
upon request to request such consent of Sublessor and further agrees
that Sub-sublandlord's consent thereto shall not be unreasonably
withheld.
(d) Any change or alteration shall, when completed, be of such a
character as not to reduce the value, rental value or rentability or
usefulness of the Demised Premises.
(e) Any change or alteration shall be made promptly and in a good
and workmanlike manner and in compliance with all applicable permits
and authorizations and building and zoning laws and with all other
laws, ordinances, orders, rules, regulations and requirements of all
federal, state and municipal governments, departments, commissions,
boards and officers, any national or local Board of Fire underwriters,
or any other body hereafter exercising functions similar to those of
any of the foregoing.
(f) The cost of any such change or alterations shall be paid in
cash or its equivalent so that the Demised Premises shall at all times
be free of liens for labor and materials supplied or claimed to have
been supplied to the Demised Premises.
(g) Workmen's compensation insurance covering all persons
employed in connection with the work and with respect to whom death or
bodily injury claims could be asserted against Landlord, Sublessor,
Sub-sublandlord, Sub-subtenant or the Demised Premises, and general
liability insurance for the benefit of Landlord, Sublessor,
Sub-sublandlord and Sub-subtenant with limits of not less than
$250,000 in the event of bodily injury to one person and not less than
$1,000,000
36
in the event of bodily injury to any number of persons in any one
accident, and with limits of not less than $25,000 for property
damage, shall be maintained or caused to be maintained by
Sub-subtenant at Sub-subtenant's sole cost and expense at all times
when any work is in process in connection with any change or
alteration. All such insurance shall be in a company or companies of
recognized responsibility, and all policies or certificates therefor
issued by the respective insurers, bearing notations evidencing the
payment of premiums or accompanied by other evidence satisfactory to
Landlord, Sublessor and Sub-sublandlord of such payment, shall be
delivered to Sub-sublandlord.
(h) If the estimated cost of any such change or alteration shall
be in excess of $100,000, Sub-subtenant, before commencement of work,
at Sub-subtenant's sole cost and expense, shall furnish to Landlord,
to Sublessor and to Sub-sublandlord a surety company performance bond,
issued by a surety company acceptable to Landlord, to Sublessor and to
Sub-sublandlord in an amount at least equal to the estimated cost of
such change or alteration, guaranteeing the completion thereof within
a reasonable time, free and clear of all 1iens, encumbrances, chattel
mortgages, conditional bills of sale, and other charges, and in
accordance with the plans and specifications approved by Landlord,
Sublessor and Sub-sublandlord or, in lieu of such performance bond,
other security reasonably satisfactory to Landlord, Sublessor and
Sub-sublandlord, No performance bond or other security shall be
required except to the extent that such estimated cost exceeds the
amounts deposited pursuant to Section 15.02 hereof or available for
the purpose pursuant to Section 16.04 hereof.
37
ARTICLE 10
DISCHARGE OF LIENS
SECTION 10.01. Sub-subtenant will not create or permit to be created or to
remain, and will discharge, any lien, encumbrance or charge (levied on account
of any Imposition or any mechanic's, laborer's or materialman's lien or any
mortgage, conditional sale, title retention agreement or chattel morgage or
otherwise) which might be or become a lien, encumbrance or charge upon the
Demised Premises or any part thereof or the income therefrom, having any
priority or preference over or ranking on a parity with the estate, rights and
interest of Sub-sublandlord in the Demised Premises or any part thereof or the
income therefrom, nor shall Sub-subtenant create any mortgage, lien, encumbrance
or charge upon its leasehold estate in the Demised Premises except in
accordance with the requirements of Sections 18.02, 18.10 and 18.15 hereof, and
Sub-subtenant will not suffer any other matter or thing whereby the estate,
rights and interest of Sub-sublandlord in the Demised Premises or any part
thereof might be impaired; provided that any Imposition may, after the same
becomes a lien on the Demised Premises, be paid or contested in accordance with
Article 3 hereof, and any mechanic's, laborer's or materialman's lien may be
discharged in accordance with Section 10.02 hereof.
SECTION 10.02. If any mechanic's, laborer's or materialman's lien shall at
any time be filed against the Demised Premises or any part thereof, whether for
labor or materials furnished prior or subsequent to the date of this lease,
Sub-subtenant, within twenty days after notice of the filing thereof, will cause
the same to be discharged of record by payment, deposit, bond, order of a court
of competent jurisdiction or otherwise. If Sub-subtenant shall fail to cause
such lien to be discharged within the period aforesaid, then, in addition to any
other right or
38
remedy, Sub-sublandlord may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, and in any such event
Sub-sublandlord shall be entitled, if Sub-sublandlord so elects, to compel the
prosecution of an action for the foreclosure of such lien by the lienor and to
pay the amount of the judgment in favor of the lienor with interest, costs and
allowances. Any amount so paid by Sub-sublandlord and all costs and expenses
incurred by Sub-sublandlord in connection therewith, together with interest
thereon at the rate of 6% per annum from the respective dates of
Sub-sublandlord's making of the payment or incurring of the cost and expense
shall constitute additional rent payable by Sub-subtenant under this lease and
shall be paid by Sub-subtenant to Sub-sublandlord on demand.
SECTION 10.03. Nothing in this lease contained shall be deemed or construed
in any way as constituting the consent or request of Sub-sublandlord, express
or implied by inference or otherwise, to any contractor, subcontractor, laborer
or materialman for the performance of any labor or the furnishing of any
materials for any specific improvement, alteration to or repair of the Demised
Premises or any part thereof, nor as giving Sub-subtenant any right, power or
authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of any lien
against the Demised Premises or any part thereof.
ARTICLE 11
USE OF PROPERTY
SECTION 11.01. Sub-subtenant will use the Demised Premises only for a
high-grade office building, except that the ground floor and floor next above
the ground floor may be used for banks, for trust companies, or for stores, and
39
Sub-subtenant shall not use or permit or allow the Demised Premises or any
portion thereof to be used for any other purpose, without prior written consent
of Sub-sublandlord, Sublessor, Landlord and the Ground Lessor. Sub-subtenant
will not use or allow the Demised Premises or any part thereof to be used or
occupied for any unlawful purpose or in violation of the Operating Lease, the
Mesne Lease, the Ground Lease or any certificate of occupancy or certificate of
compliance covering or affecting the use of the Demised Premises or any part
thereof and will not suffer any act to be done or any condition to exist on the
Demised Premises or any part thereof or any articles to be brought thereon,
which would in any way violate the Operating Lease, the Mesne Lease, the Ground
Lease or which may be dangerous, unless safeguarded as required by law, or which
may, in law, constitute a nuisance, public or private, or which may make void or
voidable any insurance then in force with respect thereto.
SECTION 11.02. Sub-subtenant will not do or suffer any waste or damage,
disfigurement or injury to the Building or any part thereof.
SECTION 11.03. Sub-subtenant shall not use or permit the use of the Demised
Premises or any part thereof for any purpose which in the reasonable opinion of
Sub-sublandlord would adversely affect the then value or character of the
Demised Premises. Any dispute between Sub-sublandlord and Sub-subtenant arising
under the provisions of this Section 11.03 shall be submitted to arbitration as
provided under Article 25 hereof.
ARTICLE 12
SUBORDINATION TO PRIOR LEASES AND COMPLIANCE THEREWITH
SECTION 12.01. This lease is subject and subordinate to the Grant of Term,
the Ground Lease, the Mesne Lease, the Operating Lease and to all of the terms,
covenants
40
and conditions of each of them. Sub-subtenant agrees that it shall, at its cost
and expense, promptly perform and observe all obligations of the Ground Lessor
as grantee under the Grant of Term, of Landlord as Ground Lessee under the
Ground Lease, of Sublessor as Tenant under the Mesne Lease and of
Sub-sublandlord as Sublessee under the Operating Lease (except that, to the
extent that Sub-subtenant shall have deposited same with the Escrow Agent under
the Operating Lease, Sub-subtenant shall not be required to make payments to the
Ground Lessor of Ground Rent or additional rent under the Ground Lease, or to
Landlord of Net Rent or additional rent under the Mesne Lease), and shall comply
with all restrictions and requirements of the Grant of Term, the Ground Lease,
the Mesne Lease and the Operating Lease, applicable to the said grantee, the
Ground Lessee, Tenant or Sublessee, as the case may be, irrespective of whether
the obligations, restrictions or requirements are more stringent than those
herein imposed upon Sub-subtenant. Specific references in other articles of this
lease to compliance with particular requirements of the Grant of Term, Ground
Lease, Mesne Lease and the Operating Lease shall not limit the generality of the
foregoing.
SECTION 12.02. Sub-sublandlord covenants and agrees that it will not do,
suffer or permit any act, condition or thing to occur which would or might
constitute a default under the Operating Lease, except to the extent that such
occurrence shall have resulted, directly or indirectly, from a default hereunder
either by Sub-subtenant or caused by any subtenant.
Sub-sublandlord further covenants and agrees that it shall forthwith give
to Sub-subtenant a copy of each notice of default which shall have been given to
Sub-sublandlord under the provisions of the Ground Lease, the Mesne Lease or the
Operating Lease.
Sub-sublandlord covenants and agrees that if the Escrow Agent, appointed
under Section 2.05 of the Operating
4l
Lease, shall fail to pay to Landlord (or to the Ground Lessor, if Landlord shall
so direct) any installment of Ground Rent or additional rent under the Ground
Lease or shall fail to pay to Landlord any installment of Net Rent or additional
rent under the Mesne Lease, with respect to which and to the extent that
Sub-subtenant shall have made deposits hereunder with the Escrow Agent, or if
Sub-sublandlord shall fail to make any payment or to perform any act required of
the Sublessee under the Operating Lease, then Sub-subtenant may, but shall not
be obligated to, make any payment or take any action as shall be necessary to
cure a default by the Ground Lessee under the Ground Lease or by Tenant under
the Mesne Lease or by Sublessee under the Operating Lease and (except to the
extent that such default shall have resulted, directly or indirectly, from a
default hereunder either by Sub-subtenant or caused by any subtenant)
Sub-subtenant may thereafter deduct the amount of any such payment, or the cost
of any such other action, from the next succeeding installment or installments
of rent or additional rent accruing under this lease, with interest thereon at
the rate of 6% per annum from the date of such payment or the incurring of such
cost.
SECTION 12.03. Sub-sublandlord shall not modify or consent to any
modification of the Operating Lease, the Mesne Lease, the Ground Lease or the
Grant of Term except with the prior written consent of Sub-subtenant, and any
such modification made without such consent shall be null and void and of no
effect so far as Sub-subtenant is concerned.
ARTICLE 13
ENTRY ON PROPERTY BY SUB-SUBLANDLORD, ETC.
SECTION 13.01. Sub-subtenant will permit Landlord, Sublessor and
Sub-sublandlord and their authorized representatives to enter the Demised
Premises at all reasonable
42
times for the purpose of (a) inspecting the same and (b) making any necessary
repairs thereto and performing any other work therein that may be necessary by
reason of Sub-subtenant's failure, for ten days after written notice from
Sub-sublandlord, to make any such repairs or perform any such other work or to
commence the same. Nothing herein shall imply any duty upon the part of
Sub-sublandlord to do any such work; and performance thereof by Sub-sublandlord
shall not constitute a waiver of Sub-subtenant's default in failing to perform
the same. Landlord, or Sublessor or Sub-sublandlord may, during the progress of
any such work in the Demised Premises, keep and store therein all necessary
materials, tools, supplies and equipment. Sub-sublandlord shall not be liable
for inconvenience, annoyance, disturbance, loss of business or other damage of
Sub-subtenant or any subtenant by reason of making such repairs or the
performance of any such work, or on account of bringing materials, tools,
supplies and equipment into or through the Demised Premises during the course
thereof, and the obligations of Sub-subtenant under this lease shall not be
affected thereby.
SECTION 13.02. Landlord, Sublessor and Sub-sublandlord shall have the right
to enter the Demised Premises at all reasonable times during usual business
hours for the purpose of showing the same to prospective purchasers or
mortgagees, and, at any time within two years prior to the expiration of the
initial term of this lease (unless Sub-subtenant theretofore shall have given
written notice of its election to renew this lease as provided in Article 20
hereof) or within two years prior to the expiration of any renewal term of this
lease (unless Sub-subtenant, if entitled to renew this lease as provided in
Article 20 hereof, theretofore shall have given Sublessor written notice of its
election so to renew this lease as therein provided), for the purpose of showing
the same to prospective tenants.
43
ARTICLE 14
INDEMNIFICATION OF SUB-SUBLANDLORD
SECTION 14.01. Sub-subtenant will indemnify and save harmless
Sub-sublandlord against and from all liabilities, obligations, judgments,
damages, penalties, claims, costs, charges and expenses, including reasonable
architects' and attorneys' fees, which may be imposed upon or incurred by or
asserted against Sub-sublandlord by reason of any of the following occurring
during the term of this lease:
(a) any work or thing done in, on or about the Demised Premises
or any part thereof;
(b) any use, non-use, possession, occupation, condition,
operation, maintenance or management of the Demised Premises or any
part thereof, or any street, alley, sidewalk, curb, vault, passageway
or space adjacent thereto;
(c) any negligence on the part of Sub-subtenant or any of its
agents, contractors, servants, employees, subtenants, licensees or
invitees;
(d) any accident, injury or damage to any person or property
occurring in, on or about the Demised Premises or any part thereof or
any street, alley, sidewalk, curb, vault, passageway or space adjacent
thereto;
(e) any failure by Sub-subtenant to perform or comply with any of
the covenants, agreements, terms or conditions contained in this lease
on its part to be performed or complied with;
(f) any tax attributable to the execution, delivery or recording
of the Mesne Lease, the Operating Lease or this lease or any
modification hereof; or
(g) any liability which may have been imposed upon
Sub-sublandlord as "Owner" by the Sub-subtenant, as Agent under the
terms of a certain Management Agreement dated April 16, 1963 made
44
by Precision Dynamics Corporation as Owner to Xxxx & Xxxxx, Inc. as
Agent, as amended by agreement dated January 10, 1964 between
Precision Dynamics Corporation and Xxxxx X. Helmsley d/b/a Graybar
Building Company (successor in interest to Xxxx & Xxxxx, Inc.) as
Agent, which agreement as so modified, was cancelled as of the date of
the execution of this Operating Sublease.
(h) any claim by Sublessor against Sub-sublandlord arising out
of or connected with any of the matters set forth in paragraphs (a)
through (f) matters set forth in paragraphs (a) through (g)
In case any action or proceeding is brought against Sub-sublandlord by reason of
any such claim, Sub-subtenant upon written notice from Sub-sublandlord will at
Sub-subtenant's expense resist or defend such action or proceeding.
ARTICLE 15
DAMAGE OR DESTRUCTION
SECTION 15.01. In case of casualty to the Building resulting in damage or
destruction exceeding $100,000 in the aggregate, Sub-subtenant shall promptly
give written notice thereof to Sub-sublandlord. Regardless of the amount of any
such damage or destruction, Sub-subtenant shall at its sole cost and expense,
and whether or not the insurance proceeds, if any, shall be sufficient for the
purpose, restore, repair, replace, rebuild or alter the Building as nearly as
possible to its value, condition and character immediately prior to such damage
or destruction and in conformity with the requirements of the Ground Lease, the
Mesne Lease, the Operating Lease and the provisions of Article 9 hereof. Such
restoration, repairs, replacements, rebuilding or alterations shall be commenced
promptly and prosecuted with reasonable diligence.
SECTION 15.02. Subject to the provisions of the Ground Lease, the Mesne
Lease and the Operating Lease, all insurance
45
proceeds received by Sub-sublandlord or any insurance trustee selected by
Sublessor pursuant to Section 5.05 of the Operating Lease, on account of such
damage or destruction, less the actual cost, fees and expenses, if any, incurred
in connection with adjustment of the loss, shall be applied by Sub-sublandlord
or such insurance trustee to pay or reimburse Sub-subtenant for the payment of
the cost of the aforesaid demolition, restoration, repairs, replacement,
rebuilding or alterations, including the cost of temporary repairs or for the
protection of property pending the completion of permanent restoration, repairs,
replacements, rebuilding or alterations (all of which temporary repairs,
protection of property and permanent restoration, repairs, replacements,
rebuilding or alterations are hereinafter collectively referred to as the
"restoration"), and shall be paid out from time to time as such restoration
progresses upon the written request of Sub-subtenant which shall be accompanied
by the following:
(1) A certificate signed by Sub-subtenant, dated not more than thirty
days prior to such request, setting forth the following:
(A) That the sum then requested either has been paid by
Sub-subtenant, or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other persons who have rendered
services or furnished materials for the restoration therein specified,
the names and addresses of such persons, a brief description of such
services and materials, the several amounts so paid or due to each of
said persons in respect thereof, that no part of such expenditures has
been or is being made the basis, in any previous or then pending
request, for the withdrawal of insurance money or has been made out of
the proceeds of insurance received by Sub-subtenant, and that the sum
then requested does not exceed the value of the services and materials
described in the certificate.
46
(B) That, except for the amount, if any, stated (pursuant to the
foregoing subclause (1) (A)) in such certificate to be due for
services or materials, there is no outstanding indebtedness known to
the persons signing such certificate, after due inquiry, which is then
due for labor, wages, materials, supplies or services in connection
with such restoration.
(C) That the cost, as estimated by the persons signing such
certificate, of the restoration required to be done subsequent to the
date of such certificate in order to complete the same, does not
exceed the insurance money, plus any amount deposited by Sub-subtenant
to defray such cost and remaining in the hands of Sub-sublandlord or
such insurance trustee after payment of the sum requested in such
certificate.
(2) A title company or official search, or other evidence satisfactory
to Sub-sublandlord or the insurance trustee, showing that there have not
been filed with respect to the Demised Premises, any vendor's,
contractor's, mechanic's, laborer's or materialman's statutory or similar
lien which has not been discharged of record, except such as will be
discharged upon payment of the sum requested in such certificate.
(3) An opinion of counsel (who may be counsel to Sub-subtenant)
stating that the instruments which have been or are therewith delivered to
Sub-sublandlord or to such insurance trustee conform to the requirements of
the foregoing clauses (1) and (2) of this Section and that, upon the basis
of such request, the insurance proceeds, the withdrawal of which is then
requested, may be properly paid over under this Section.
The certificate required by clause (1) of this Section 15.02 shall be signed
also by the architect and/or engineer in charge of the restoration, who shall be
selected by Sub-subtenant and approved in writing by Landlord, Sublessor and
Sub-sublandlord (Sublessor having agreed with Sub-sublandlord
47
that its approval shall not be unreasonably withheld, Sub-sublandlord shall
request such approval by Sublessor and agrees that it shall not unreasonably
withhold Sub-sublandlord's approval thereof) and (in the case of proceeds of
insurance provided for in Section 5.01) by the Ground Lessor.
Upon compliance with the foregoing provisions of this Section 15.02 and
with the requirements of the Ground Lease, Sub-sublandlord or such insurance
trustee shall, out of such insurance money, pay or cause to be paid to
Sub-subtenant or the persons named (pursuant to sub-clause (1) (A) of this
Section 15.02) in such certificate the respective amounts stated therein to have
been paid by Sub-subtenant or to be due to them, as the case may be.
If the insurance money at the time available for the purpose, less the
actual cost, fees and expenses, if any, incurred in connection with the
adjustment of the loss shall be insufficient to pay the entire cost of such
restoration, Sub-subtenant shall pay the deficiency.
Upon receipt by Sub-sublandlord or such insurance trusttee of satisfactory
evidence of the character required by clauses (1) and (2) of this Section 15.02
that the restoration has been completed and paid for in full and that there are
no liens of the character referred to therein or Events of Default hereunder,
any balance of the insurance money held by Sub-sublandlord or such insurance
trustee or to which Sub-sublandlord may be entitled pursuant to the Operating
Lease shall be paid to Sub-subtenant.
SECTION 15.03. If, during the last five years of the last renewal term of
this lease, the Building shall be damaged or destroyed by fire or otherwise, and
as a result thereof Sub-sublandlord shall be entitled to terminate the Operating
Lease pursuant to Section 15.03 thereof,
(a) nothing herein contained shall prohibit the Sub-sublandlord
from exercising such right of termination,
(b) Sub-subtenant shall have a corresponding right to terminate
this lease; and
48
(c) in case of any such termination of the Operating Lease by
Sublessor or Sub-sublandlord, this lease shall terminate as of a date
prior to the date of termination of the Operating Lease and
Sub-sublandlord shall give Sub-subtenant at least fifteen days' prior
written notice of the date of such termination.
SECTION 15.04. Except as provided in Section 15.03 hereof, no destruction
of or damage to the Demised Premises or any part thereof by fire or any other
casualty shall terminate or permit Sub-subtenant to surrender this lease or
shall relieve Sub-subtenant from its liability to pay the full rent, additional
rent and other charges payable under this lease, except to the extent that the
same shall be paid by the application thereto of the proceeds of rent insurance
pursuant to Paragraph (d) of Section 5.02 hereof, or from any of its other
obligations under this lease, and Sub-subtenant waives any rights now or
hereafter conferred upon it by statute or otherwise to quit or surrender this
lease or the Demised Premises or any part thereof, or to any Suspension,
diminution, abatement or reduction of rent on account of any such destruction or
damage.
ARTICLE 16
CONDEMNATION
SECTION 16.01. In the event that the Demised Premises, or any part thereof,
shall be taken in condemnation proceedings or by exercise of any right of
eminent domain, subject to the provisions of the Operating Lease,
Sub-sublandlord shall be entitled to collect from any condemnor the entire
portion of the award made with respect to the leasehold estate created by the
Operating Lease and for consequential damages to the Demised Premises to which
Sub-sublandlord is entitled as Sublessee under the Operating Lease, without
deduction therefrom for any estate hereby vested in or owned by Sub-subtenant,
subject to Sub-subtenant's rights as set forth in this
49
Article 16. Sub-subtenant agrees to execute, to cause to be executed, any and
all further documents that may be required in order to facilitate collection by
Sub-sublandlord of such portion of any and all such awards. Sub-subtenant, in
cooperation with Sub-sublandlord, shall have the right to participate in any
condemnation proceedings for the purpose of protecting Sub-subtenant's interest
hereunder. For purposes of this Article, any such taking which shall result in a
termination of the Operating Lease (whether by action of Sub-sublandlord, by
operation of law or otherwise) is referred to as a "Total Taking"; any such
taking which shall not result in a termination of the Operating Lease is
referred to as a "Partial Taking"; and the portion of any such award to which
Sub-sublandlord is entitled under the provisions of the Operating Lease in the
event of a Total Taking, after deducting the expenses mentioned in Section 16.08
hereof, less any part of such expenses recouped by Sub-sublandlord under the
Operating Lease, is referred to as the "Net Award."
SECTION 16.02. In case of a Total Taking, this lease shall terminate and
expire on the date of termination of the Operating Lease and the rent, Basic
Rent and Net Rent shall be apportioned and paid to such date. In such event,
Sub-subtenant shall not be entitled to receive any apportionment of Impositions
theretofore paid or payable by Sub-subtenant, except to the extent that such
apportionment or refund is granted by the condemnor acquiring the Demised
Premises and except for any refund to which Sub-sublandlord may be entitled
under Section 2.03 hereof.
SECTION 16.03. In the event of a Total Taking, the Net Award received by
Sub-sublandlord shall be divided between Sub-sublandlord and Sub-subtenant as
follows:
(a) Sub-sublandlord shall first receive $4,500,000 or so much
thereof as is available out of the proceeds of the Net Award.
50
(b) The balance, if any, of the Net Award shall be paid to
Sub-subtenant.
SECTION 16.04. In case of a Partial Taking, Sub-subtenant, at its expense,
shall restore the Building to substantially its former condition, to the extent
the same is feasible, in accordance with the provisions of Article 9 hereof. The
cost of demolition, repair and restoration shall be paid for out of the Net
Award (as same is defined in the Mesne Lease) pursuant to the provisions of
Section 16.04 of the Mesne Lease to the extent that said Net Award shall be
available therefor. In the event that the costs of such demolition, repair and
restoration shall exceed said Net Award, Sub-subtenant shall pay the deficiency.
SECTION 16.05. In case of a Partial Taking:
(a) This lease shall continue and Sub-subtenant shall continue to
pay or deposit rent, Basic Rent, Overage Rent, Net Rent, Ground Rent,
and all other additional rent and other charges as herein provided.
(b) In the event that Sub-sublandlord shall receive from
Sublessor a refund of any Net Rent, Basic Rent or Overage Rent
deposited or paid by Sub-subtenant pursuant to this lease,
Sub-sublandlord shall promptly refund same to Sub-subtenant.
(c) Sub-subtenant shall not be entitled to receive any portion of
any award made as a result of such Partial Taking, except to the
extent that such award shall be made available pursuant to
Section 16.04 hereof.
SECTION 16.06. Sub-subtenant shall not be entitled to share in any award or
awards made in condemnation proceedings for the taking of any appurtenances to
the Demised Premises, vaults, areas or projections outside of the boundaries of
the Demised Premises, or rights in, under or above the streets adjoining said
lands, or the rights and benefits of light, air, or access to said streets, or
for the
51
taking of space, or rights, therein, below the surface of, or above, the Demised
Premises. The cost of such demolition, repair and restoration of the Building as
shall be necessitated by such taking shall be paid for out of any award or
compensation received by Landlord for any such taking in accordance with Section
16.06 of the Mesne Lease.
SECTION 16.07. If the temporary use of the whole or any part of the Demised
Premises shall be taken by any lawful power or authority, by the exercise of the
right of condemnation or eminent domain, or by agreement between Sub-subtenant
and those authorized to exercise such right, Sub-subtenant shall give prompt
notice thereof to Sub-sublandlord, the term of this lease shall not be reduced
or affected in any way, Sub-subtenant shall continue to pay in full the rent,
additional rent and other charges herein reserved, without reduction or
abatement, and Sub-subtenant shall be entitled to receive for itself any award
or payment made for such use, provided, however, that
(a) if the taking is for a period not extending beyond the
initial term or the then current term of this lease and if such award
or payment is made in a lump sum, the same shall be paid to and held
by Sub-sublandlord as a fund which Sub-sublandlord shall pay over and
apply as follows; Sub-sublandlord shall pay over to Landlord the sums
due to Landlord pursuant to Section 16.07 of the Mesne Lease and due
to Sublessor pursuant to Section 16.07 of the Operating Lease and the
balance of such award shall be held by Sub-sublandlord and applied
from time to time to the payments due to Sub-sublandlord from
Sub-subtenant under the terms of this lease, except that, if such
taking results in changes or alterations in the Building which would
necessitate an expenditure to restore the Building to its former
condition, then a portion of such award or payment considered by
Sub-sublandlord as appropriate to cover the expenses of such
restoration may be retained by Sub-sublandlord,
52
without application as aforesaid, and applied and paid over toward the
restoration of the Building to its former condition, substantially in
the same manner and subject to the same conditions as those provided
in Section 15.02 hereof with respect to insurance and other moneys, or
(b) if the taking is for a period extending beyond the initial
term or the then current term of this lease, such award or payment
shall be apportioned between Sub-sublandlord and Sub-subtenant as of
the stated expiration date of such term; Sub-subtenant's share thereof
shall, if paid in a lump sum, be paid to Sub-Sublandlord and applied
in accordance with the provisions of paragraph (a) of this
Section 16.07 and, in case the then current term of this lease shall
be extended pursuant to Article 20 hereof beyond such then current
term. Sub-subtenant shall from time to time, from and after the
commencement of such extended term, apply the sums received by it upon
such apportionment to the payments thereafter due to Sub-sublandlord
from Sub-subtenant under the terms of this lease; provided, however,
that the amount of any award or payment allowed or retained for
restoration of the Building, shall remain the property of
Sub-sublandlord if the lease shall expire prior to the restoration of
the Building to its former condition.
Sub-subtenant shall also pay all fees, costs and expenses of every character of
the Sub-sublandlord in connection with the eventualities provided for in this
Section. Sub-subtenant shall be entitled at the close of each year after any
such taking to receive any surplus remaining of said award or awards, after
making provision for all payments required pursuant to paragraphs (a) and (b) of
this Section 16.07.
SECTION 16.08. In the case of any taking covered by the provisions of this
Article 16, except as in Section 16.07
53
provided, Sub-sublandlord and Sub-subtenant shall be entitled to reimbursement
from any award or awards of all reasonable costs, fees and expenses incurred in
the determination and collection of any such awards.
SECTION 16.09. If the Ground Lessor shall take and use, or permit to be
used, any portion of the Demised Premises pursuant to the Ground Lease, Landlord
shall be entitled to receive and retain any lump sum payment made by the Ground
Lessor pursuant to the Ground Lease on account of the rental value of such
portion so taken.
SECTION 16.10. Upon request of Sub-subtenant, Sub-sublandlord will
request Sublessor to make the election referred to in Section 16.10 of the Mesne
Lease in accordance with the provisions of Section 16.10 of the Operating Lease.
ARTICLE 17
VAULT SPACE
SECTION 17.01. Vaults and areas, if any, now or hereafter built extending
beyond the building line of the Demised Premises are not included within the
Demised Premises, but Sub-subtenant may occupy and use the same during the term
of this lease, subject to the Ground Lease, to the Mesne Lease, to the Operating
Lease and to such laws, permits, rules and regulations as may be imposed by
appropriate governmental authorities with respect thereto.
SECTION 17.02 No revocation on the part of any governmental department or
authority of any license or permit to maintain and use any such vault shall in
any way affect this lease or the amount of the rent or any other charge payable
by Sub-subtenant hereunder. If any such license or permit shall be revoked,
Sub-subtenant will, at its sole cost and expense, do and perform all such work
as may be necessary to comply with any order revoking the same.
54
ARTICLE 18
MORTGAGES, ASSIGNMENTS, SUBLEASES AND TRANSFERS OF
SUB-SUBTENANT'S INTERESTS
SECTION 18.01 (a) Neither this lease nor any interest of Sub-subtenant in
this lease or in any sublease, or in any subrents shall be sold, assigned,
transferred or otherwise disposed of whether by operation of law or otherwise,
nor shall the Demised Premises be sublet as an entirety or substantially as an
entirety; nor
(b) shall any of the issued and outstanding capital stock of any
corporation or corporations owning this lease as Sub-subtenant be
sold, assigned, transferred or otherwise disposed of, if such sale,
assignment, transfer or other disposition will result in vesting the
control of such corporation or corporations in a person (or persons)
who was not a stockholder of such corporation or corporations at the
time such corporation or corporations become the owner of this lease
pursuant to the terms hereof; nor
(c) shall the interest or interests of any partner in any
partnership at any time owning this lease as Sub-subtenant be sold,
assigned, transferred or otherwise disposed of, if such sale,
assignment, transfer or other disposition will result in vesting the
control of such partnership in persons who were not partners at the
time that this partnership became the owner of this lease pursuant to
the terms hereof;
without (i) such prior written consent of Landlord as may be required under
Article 18 of the Mesne Lease (ii) such prior written consent of Sublessor as
may be required under Article 18 of the Sublease, and (iii) the prior written
consent of Sub-sublandlord, which consent Sub-sublandlord hereby agrees it will
not unreasonably withhold, and
55
(iv) full compliance by Sub-subtenant with all of the terms and conditions of
said Article 18 of the Mesne Lease and said Article 18 of the Sublease. It is
understood that the sales, assignments, transfers and other dispositions
restricted by this Article 18 include, INTER ALIA, dispositions for security
purposes whether by way of mortgage, pledge, hypothecation or otherwise.
Sub-sublandlord hereby agrees subject to the provisions of the Mesne Lease and
the Operating Lease that so long as no Event of Default exists hereunder the
interest of the Sub-subtenant may be assigned from time to time without
Sub-sublandlord's consent to a corporation qualified to do business in the
State of New York, which is controlled by Xxxxx X. Helmsley or in the case of
his death or incompetency, by his legal representatives.
No assignment shall be effective until there shall have been delivered to
Sub-sublandlord a duplicate original of the assignment in recordable form,
executed by the assignor and the proposed assignee containing an agreement
whereby such assignee assumes due performance of the obligations on the
assignor's part to be performed under this lease from the date of such
assignment to the end of the term hereof. Upon the assignor having delivered to
Sub-sublandlord said assignment and agreement, all liabilities and obligations
on the part of the assignor accruing after such assignment shall terminate,
provided that upon the effective date of such assignment and thereafter all
liabilities and obligations shall be binding only upon the assignee, but nothing
herein contained shall be construed to release the assignor from any liability
or obligation which accrued prior to the effective date of such assignment. In
the event this lease shall be assigned to a partnership, or to more than one
corporation, all said corporations and all general partners in such partnership
shall assume the obligations of this lease jointly and severally; but upon any
subsequent assignment of this lease by such partnership the liabilities and
obligations of the partners in such partnership subsequent to such assignment
shall similarly be terminated.
56
For the purpose of this Section 18.01, "control" of any corporation shall
be deemed to be vested in the person or persons owning more than 96% of the
voting power for the election of the members of the Board of Directors of such
corporation; and "control" of a partnership shall be deemed to be vested in the
person or persons owning more than 96% in the total interest of the partnership.
Any assignment of this lease, or of the interest of Sub-subtenant
hereunder, or transfer of stock or of any interest of any corporation or
partnership as aforesaid, without full compliance with any and all requirements
set forth in this lease shall be invalid and of no effect against
Sub-sublandlord. In no event shall Sub-subtenant be entitled to make a lease of
all or substantially all of the Demised Premises.
SECTION 18.02. Subject to the requirements of the Mesne Lease with respect
to consent of Landlord, Sub-subtenant shall have the right to mortgage this
lease, to execute and deliver to a trustee a deed of trust of this lease
securing bonds or notes issued by Sub-subtenant, and to assign, pledge or
hypothecate this lease as security for any such mortgage or deed of trust; (a)
to a college or university; or (b) to pension fund or employees' profit-sharing
trust subject to regulation by the State of New York or any agent thereof; or
(c) to a savings bank, bank, trust or insurance company or any other monetary or
lending institution, authorized to make leasehold mortgage loans in the State of
New York, organized and existing under the laws of the United States, or any
state thereof and authorized to do business in the State of New York and under
the supervision of the Comptroller of the Currency of the United States, or of
either the Insurance or Banking Departments of the State of New York, Any one of
the foregoing permitted mortgagees is hereinafter referred to as an Institution.
Sub-subtenant covenants that the net proceeds of any aforementioned Leasehold
Mortgage made prior to December 1, 1973, will be used to make improvements and
betterments in and to the Building. In
57
connection with an assignment of this lease as in Section 18.01 of this Article
18 provided, Xxxxx X. Helmsley, Sub-subtenant named herein may take back a
purchase money Leasehold Mortgage as part of the consideration for such
assignment but the said Xxxxx X. Helmsley (or in the event of his death or
insanity, his legal representatives) agrees not to sell, assign, pledge or
otherwise transfer said Leasehold Mortgage prior to May 28, 1976. Except as
herein specifically permitted Sub-subtenant shall not without obtaining the
prior written consent of Landlord and Sub-sublandlord, mortgage or pledge the
interest of Sub-subtenant in and to this lease or in and to the Demised
Premises, whether by operation of law or otherwise.
No Leasehold Mortgage shall be binding upon Sub-sublandlord in the
enforcement of its rights and remedies herein and by law provided, unless and
until executed counterparts thereof shall have been delivered to
Sub-sublandlord, Sublessor and to Landlord, notwithstanding any other form of
notice actual or constructive. Any Leasehold Mortgage shall be specifically
subject and subordinate to the rights of Sub-sublandlord hereunder and of
Landlord under the Mesne Lease and of Sublessor under the Operating Lease,
including specifically, but without limitation, the rights of Sub-sublandlord
under Section 18.10 hereof, the rights of Sublessor under Section 18.10 of the
Operating Lease and the rights of Landlord under Section 18.10 of the Mesne
Lease. Any mortgage on this lease or the interest of Sub-subtenant hereunder
without full compliance with any and all requirements hereunder shall be
invalid and of no effect against Sub-sublandlord, Sublessor and Landlord. The
consent by Landlord to a Leasehold Mortgage, as hereinabove provided, may be
conditioned at the option of Landlord, upon the inclusion of a clause in the
Leasehold Mortgage substantially to the effect that: (i) the Leasehold Mortgagee
prior to the institution of any proceedings to foreclose any mortgage or
negotiations to accept an assignment in lieu of a foreclosure, shall notify
Landlord in writing to that effect, and (ii) Landlord shall have the right
within 20 days after
58
the giving of such notice to purchase the mortgage and the indebtedness which it
secures, at a purchase price equal to the full amount then owing to the
Leasehold Mortgage under said Mortgage and the indebtedness which it secures,
including interest accrued and unpaid and statutory costs and allowances in the
event any foreclosure proceedings shall have commenced. No more than one
Leasehold Mortgage on this lease may exist at any one time.
SECTION 18.03. Any consent by Landlord and by Sublessor and Sub-sublandlord
to a sale, assignment, mortgage, pledge, hypothecation, transfer of stock, or
transfer of this lease, shall apply only to the specific transaction thereby
authorized and shall not release Sub-subtenant from the requirement of obtaining
the prior written consent of Landlord, Sublessor and Sub-sublandlord to any
further sale, assignment, mortgage, pledge, hypothecation, transfer of stock as
aforementioned or other transfer of this lease. In instances where the consent
of Landlord, Sublessor and Sub-sublandlord to any such transaction may not be
unreasonably withheld, then, contemporaneously with the request of Sub-subtenant
for such consent, Sub-subtenant shall submit, in writing, information sufficient
to enable Landlord, Sublessor and Sub-sublandlord to decide with respect
thereto.
SECTION 18.04. If a Leasehold Mortgagee shall have given to Sub-sublandlord
before any default shall have occurred under this lease, a written notice,
specifying the name and address of such mortgagee, Sub-sublandlord shall give to
such Leasehold Mortgagee a copy of each notice of default by Sub-subtenant at
the same time as and whenever any such notice of default shall thereafter be
given by Sub-sublandlord to Sub-subtenant, addressed to such Leasehold Mortgagee
at the address last furnished to Sub-sublandlord. No such notice by
Sub-sublandlord shall be deemed to have been given unless and until a copy
thereof shall have been so given to such Leasehold Mortgagee.
59
Sub-sublandlord will accept performance by any such Leasehold Mortgagee of any
covenant, condition, or agreement on Sub-subtenant's part to be performed
hereunder with the same force and effect as though performed by Sub-subtenant,
if the same shall be adequate for purposes of compliance with the Operating
Lease, the Mesne Lease and the Ground Lease and if, at the time of such
performance, Sub-sublandlord shall be furnished with evidence reasonably
satisfactory to Sub-sublandlord of the interest in the lease claimed by the
person tendering such performance.
SECTION 18.05. In case of termination of this lease by reason of the
happening of any Event of Default, Sub-sublandlord shall give notice thereof to
any Leasehold Mortgagee who shall have notified Sub-sublandlord of its name and
address pursuant to Section 18.04, which notice shall be addressed to such
Leasehold Mortgagee at the address last furnished to Sub-sublandlord as above
provided. Sub-sublandlord shall, on written request of such Leasehold
Mortgagee made any time within 30 days after the mailing of such notice, execute
and deliver a new lease of the Demised Premises to such Leasehold Mortgagee, or
its designee or nominee, for the remainder of the term of this lease, at the
basic rent and all additional rent and upon the covenants, conditions,
limitations and agreements herein contained, including the covenants with
respect to renewals, provided such Leasehold Mortgagee, shall have paid to
Sub-sublandlord all rent, additional rent and other charges due under this lease
up to and including the date of the commencement of the term of such new lease,
together with all expenses incurred by Sub-sublandlord, including reasonable
attorney's fees, but nothing herein contained shall be deemed to impose any
obligation on the part of the Sub-sublandlord to deliver physical possession of
the Demised Premises to such Leasehold Mortgagee. Any such designee or nominee
of a Leasehold Mortgagee shall be a corporation qualified to do business in the
State of New York.
60
SECTION 18.06. No Leasehold Mortgagee shall be entitled to become the owner
of this lease by foreclosure, or by assignment in lieu of foreclosure unless
such Leasehold Mortgagee, or its designee or nominee shall first have delivered
to Sub-sublandlord an assumption agreement executed in recordable form, wherein
and whereby such Leasehold Mortgagee, or a corporate designee or nominee of such
Leasehold Mortgagee assumes the performance of all the terms, covenants and
conditions of this lease.
SECTION 18.07. Nothing herein contained shall prevent Sub-subtenant from
subletting portions (constituting less than all or substantially all) of the
Demised Premises, provided that each such sublease shall be subject and
subordinate to this lease and the rights of Sub-sublandlord hereunder, to the
Operating Lease and the rights of Sublessor thereunder, and to the Mesne Lease
and the rights of Landlord thereunder. This lease is and shall be subject and
subordinate to the Operating Lease and the rights of Sublessor thereunder and to
the Mesne Lease and the rights of Landlord thereunder. Subject to the provisions
of Section 18.13 of the Mesne Lease and Section 18.15 of the Operating Lease,
this lease shall be terminable at the election of Landlord upon the termination
of the Mesne Lease or, at Sublessor's election, upon the termination of the
Operating Lease.
SECTION 18.08. Sub-subtenant shall furnish Landlord and Sub-sublandlord
with fully executed or photo-copies of all subleases of space in the Demised
Premises and with such information with respect thereto as Landlord and
Sub-sublandlord may require and Sub-subtenant shall deliver to Sub-sublandlord,
Sublessor and Landlord, in duplicate, within eighty-five days after the end of
each fiscal year of Sub-subtenant, a statement of income and expenses for such
fiscal year with respect to the operation of the Demised Premises, and a
schedule showing all subleases, the subrents payable thereunder, the duration of
the respective terms thereof and any renewal or cancellation
61
privileges contained therein, which statement shall be certified by an
independent firm of public accountants of recognized national standing. Such
statement shall be accompanied by a statement of the names and addresses of all
stockholders in any corporation or partners in any partnership holding this
lease, showing the number of shares of stock owned by each stockholder of such
corporation, or the respective interest of each such partner in the partnership,
as the case may be; provided, however, that if at any time during the term of
this lease any corporation holding this lease is a savings bank, bank, trust or
insurance company, or other monetary or lending institution authorized to do
business in the State of New York, organized and existing under the laws of the
United States or any State thereof and under the supervision of the Comptroller
of the Currency of the United States or of either the Insurance or Banking
Departments of the State of New York, or if the stock of any corporation holding
this lease is listed on any authorized Stock Exchange, then a list of
stockholders shall not be required. If more than one corporation holds this
lease such statement shall be made by an officer of each such corporation.
SECTION 18.09. Sub-subtenant shall perform and observe each and every term
and condition to be performed or observed by Sub-sublandlord under all existing
and future subleases and shall and does hereby indemnify and agree to hold
Sub-sublandlord harmless from any and all liabilities, claims and causes of
action arising thereunder. All subtenants' security deposits held by
Sub-subtenant at the commencement of the term of this lease or hereafter
deposited with Sub-subtenant shall be deposited by Sub-subtenant in a special
account in a bank or trust company selected by Sub-subtenant and shall
constitute trust funds in the hands of Sub-subtenant.
SECTION 18.10. Effective as of the date of the happening of an Event of
Default, Sub-subtenant hereby assigns to Sub-sublandlord, subject to the
provisions of Section 18.10
62
of the Operating Lease and of Section l8.10 of the Mesne Lease, all of its
right, title and interest in and to all existing and future subleases and all
rents due and to become due thereunder. After the effective date of such
assignment, Sub-sublandlord shall apply any net amount collected by it from
subtenants pursuant to such assignment to any rent, additional rent and other
charges due or to become due under this lease for such periods and in such order
as Sub-sublandlord may elect. No collection of subrent by Sub-sublandlord from a
subtenant shall constitute a waiver of any of the provisions of this Article 18,
or an acceptance of the subtenant as a tenant or a release of Sub-subtenant from
performance by Sub-subtenant of its obligations under this lease.
Sub-subtenant shall not, without Sub-sublandlord's prior written consent,
directly or indirectly collect or accept any payment of subrent under any
sublease in advance of the date when the same shall become due under the terms
of such sublease, and such subrent, in the case of any future sublease, or
amendment of an existing sublease, shall be payable at least every three months;
provided, however, that any sublease of a store may require the subtenant
thereunder to make a rent security deposit in an amount not exceeding ten per
cent of the aggregate subrent reserved for the term of such sublease. In the
event of the failure of any subtenant to pay subrent to Landlord pursuant to the
assignment provided for in said Section 18.10 of the Mesne Lease after the
happening of an Event of Default thereunder or to pay such subrent to Sublessor
pursuant to the assignment provided for in said Section 18.10 of the Operating
Lease after the happening of an Event of Default thereunder or to pay such
subrent to Sub-sublandlord pursuant to the foregoing assignment after the
happening of an Event of Default hereunder, any such rent thereafter collected
by Sub-subtenant shall be deemed to constitute a trust fund for the benefit of
Landlord, Sublessor or Sub-sublandlord, whichever's assignment shall first
become effective.
63
SECTION 18.11. Sub-subtenant assumes and shall be responsible for and
liable to Sub-sublandlord for all acts and omissions on the part of any present
or future subtenant, and any violation of any of the terms, provisions or
conditions of this lease, whether by act or omission, by any subtenant shall
constitute a violation by Sub-subtenant.
SECTION 18.12. Sub-subtenant shall not modify any major sublease so as to
reduce the rent, shorten the term, or otherwise adversely affect to any material
extent the rights of the lessor thereunder or the rights, if any, of
Sub-sublandlord or permit cancellation or accept the surrender of any such
sublease, without the prior written consent of Sub-sublandlord, Sublessor and
Landlord in each instance (which consent of Sub-sublandlord shall not be
unreasonably withheld); provided, however, that, in the case of any major
sublease covering one or more full floors in the Building and any additional
diversified smaller portions of space in the Building, such sublease may be
modified in order to substitute new space in the Building for some or all of the
diversified smaller space previously covered by such sublease if (a) the terms
thereof, as so modified, shall not be otherwise modified, except that provision
may be made for an increase in the annual rental and for the redecoration of
the new space in accordance with the standards then in effect for redecorating
space in the Building demised to other subtenants, and (b) no major sublease to
any other subtenant shall be cancelled or modified in connection with such
transaction. Sub-subtenant further agrees not to cancel more than two subleases
providing for a fixed subrent of $10,000 or more per annum each and having a
remaining term of more than six months in any one twelve month period. In
addition to being subject and subordinate to the terms of this lease, as
required by the provisions of Section 18.07 hereof, each major sublease made
after the date of this lease shall contain a specific provision to the effect
that such sublease may not be modified or amended so as to reduce the subrent
or shorten the
64
term, or otherwise adversely affect to any material extent the rights of the
lessor or the rights, if any, of Sub-sublandlord thereunder, or be cancelled or
surrendered without the prior written consent, in each instance of Landlord,
Sublessor and Sub-sublandlord (which consent of Sub-sublandlord will not be
unreasonably withheld). Sublessor has agreed with Sub-sublandlord that its
consent to any such modification, amendment, cancellation or surrender of a
major lease will not be unreasonably withheld and a Sub-sublandlord agrees, on
request of Sub-subtenant, to request such consent of Sublessor.
Each future sublease shall also contain an agreement on the part of the
subtenant to the effect that such sublease shall not terminate or be terminable
by the subtenant thereunder by reason of any termination of this lease, of the
Operating Lease or of the Mesne Lease or of any other lease of all or
substantially all of the Demised Premises, except that in case of the
institution of any summary or other proceeding by Landlord, any sublease made
after the date of this lease may be terminated if the subtenant thereunder is
named by Landlord as a party, and served with process, in any such proceeding
for possession of the Demised Premises or the space occupied by such subtenant,
and a warrant or judgment for possession of such space is issued in such
proceeding. Each future sublease shall contain an agreement on the part of the
subtenant to the effect that Sub-sublandlord, Sublessor and Landlord shall be
given notice of, and a reasonable opportunity to cure, any default on the part
of the lessor under such sublease.
SECTION 18.13. Sub-sublandlord agrees that if it shall execute and deliver
a mortgage or deed of trust of the Operating Lease as referred to in Section
18.02 thereof, it shall require the holder of each such mortgage or the trustee
under each such deed of trust to covenant and agree in the mortgage or deed of
trust that if such holder or trustee or the designee of either shall obtain a
new
65
lease as provided in Section 18.05 of the Operating Lease or in Section 18.13 of
the Mesne Lease or shall renew the Mesne Lease and become tenant thereunder as
provided in Section 20.05 of the Mesne Lease, or shall renew the Operating Lease
and become Sublessee thereunder as provided in Section 20.02 thereof, then,
subject to the provisions of Section 18.07 of the Mesne Lease and provided that
no Event of Default under this lease shall be in existence at the time of the
termination of the Operating Lease and/or at the time when such new lease or
renewal lease, as the case may be, is obtained by such holder, such holder,
trustee or designee shall, simultaneously with the execution and delivery of
such new lease or of an assumption agreement in connection with such renewal, as
the case may be, enter into a new lease with Sub-subtenant, without cost or
expense to such holder, trustee or designee, for the remainder of the term of
this lease or for the corresponding renewal term of this lease, as the case may
be, and at the rent and all additional rent and upon the covenants, conditions,
limitations and agreements contained herein including the covenants in respect
to renewals.
SECTION 18.14. If Sub-sublandlord shall obtain a new lease, as provided in
Paragraph Eleventh of the Ground Lease or in Section 18.13 of the Mesne Lease or
as shall be provided in a mortgage or deed of trust of the Ground Lease, as
required by Section 18.14 of the Mesne Lease, or as shall be provided in a
mortgage or deed of trust of the Mesne Lease, as required by Section 18.13 of
the Operating Lease, or if Sub-sublandlord shall renew the Ground Lease and
become the Ground Lessee as provided in Paragraph Twelfth thereof, or shall
renew the Mesne Lease and become the Tenant as provided in Section 20.05
thereof, then, subject to the provisions of Section 18.07 of the Mesne Lease,
and provided that no Event of Default under this lease shall be in existence at
the time of the termination of the Ground Lease or the Mesne Lease, as the case
may be, and/or at the time when such new lease or renewal
66
lease, is obtained by Sub-sublandlord, this lease shall continue in full force
and effect or may be renewed in accordance with its terms, as the case may be,
and if Sub-subtenant shall so request, in confirmation thereof Sub-sublandlord
shall simultaneously with the execution and delivery of such new lease, or
assumption agreement in connection with such renewal, as the case may be, enter
into a new lease with Sub-subtenant without cost or expense to Sub-sublandlord,
for the remainder of the term of this lease, and at the net rent and all
additional rent and upon the covenants, conditions, limitations and agreements
contained herein, including the covenants with respect to renewals.
In any of the foregoing cases where Sub-sublandlord shall be entitled to
request a new lease with respect to the Ground Lease or shall be entitled to
elect to renew the Ground Lease and shall not desire to do so, at least five
days before the expiration of the applicable period within which Sub-sublandlord
shall be required to request such new lease or to make such election to renew,
as the case may be, Sub-sublandlord shall give notice to Sub-subtenant to the
effect that Sub-sublandlord does not desire to make such request or election, as
the case may be, and if there shall then be no existing Event of Default under
this lease, Sub-subtenant shall be entitled to make such request or election, as
the case may be, on behalf of and in the name of Sub-sublandlord, and
Sub-sublandlord, if so requested, shall execute a written instrument confirming
the permission hereby granted and, effective as of the date of termination of
the Ground Lease or of the expiration of the then current term thereof,
whichever date shall be applicable, shall assign the Operating Lease to
Sub-subtenant which, pursuant to Section 18.01 thereof, shall assume due
performance of the obligations of the Sublessee's part to be performed to the
end of the term thereof; provided, however, that Sub-sublandlord shall have no
obligation or responsibility to obtain the consent of Landlord to such
assignment.
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SECTION 18.15. Notwithstanding the provisions of Article 10 and paragraphs
(f) and (h) of Section 9.01 hereof, but subject in other respects to the
provisions of Article 9 hereof and subject to compliance with all applicable
provisions of the Ground Lease, the Mesne Lease and the Operating Lease,
Sub-subtenant may, in connection with the installation of air-conditioning in
any office space in the Building (i) make a chattel mortgage or mortgages upon
any air-conditioning facilities required for the purpose, or assign or pledge a
portion of the subrent payable under any sublease of the space to be
air-conditioned, in either case in order to secure the repayment of a loan
obtained to finance not more than the cost of such air-conditioning installation
(including necessary related alterations and redecorating), or (ii) purchase the
necessary equipment for any such air-conditioning facilities under a conditional
sale contract or contracts; provided, however, that
(1) Sub-subtenant shall first have submitted to Landlord (with copies to
Sublessor and Sub-sublandlord) a written proposal for the air-conditioning of
such space which proposal shall
(a) include preliminary plans and outline specifications for, and
an estimate of the cost of, the proposed installation,
(b) be conditioned upon an increase in the Net Rent payable under
the Mesne Lease by the amount necessary to amortize the cost of such
installation and to yield 6% per annum on the unamortized balances of
such cost over a period of not more than ten years, which period,
however, shall not extend beyond the date of expiration of any
sublease referred to in paragraph (c) below, and
(c) be further conditioned upon an increase in the aggregate
subrent payable under any and all subleases covering such space, by an
amount at least sufficient to amortize the cost of such installation
and to yield at
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least 6% per annum on the unamortized balances of such cost over the
period referred to in paragraph (b) above; and
Landlord shall have failed or refused, within a period of twenty days after
receipt of such proposal, to offer to pay for the cost of the proposed
installation on the basis so proposed;
(2) any such conditional sale contract or loan security document shall
contain provisions satisfactory to Sub-sublandlord, Sublessor and Landlord
providing that the conditional vendor or the lender, as the case may be, will
not exercise any rights or remedies after a default thereunder by the borrower
or conditional purchaser, as the case may be, unless such conditional vendor or
the lender shall have notified Sub-sublandlord, Sublessor and Landlord in
writing of such default and either Sub-sublandlord, Sublessor or Landlord shall
have failed to cure such default within a period of thirty days after receipt of
such notice;
(3) the subrent payable under any and all subleases of the space to be
air-conditioned shall be increased by an amount (hereinafter called the
air-conditioning rent) which shall in the aggregate be at least sufficient to
cover all payments required to be made to the conditional vendor or lender when
and as due (all of which payments shall become due within a period not in excess
of ten years and not extending beyond the term of any such sublease);
(4) the amount of air-conditioning rent for any given period which may be
assigned or pledged as security for any such loan shall not exceed the amount
required to pay the aggregate requirements for principal and interest payments
on said loan for the same period; and
(5) no such loan shall be secured both by chattel mortgage and assignment
or pledge of air-conditioning rent.
Unless Landlord shall pay for the cost of such air-conditioning
installation, no increase in respect thereof shall
69
be made in the Net Rent, provided, however, that any amounts expended by
Sub-sublandlord, Sublessor or Landlord to cure any default under any such loan
security document or conditional sale contract shall constitute additional rent
hereunder. Sub-subtenant will perform or cause to be performed all of the terms,
covenants and conditions required to be performed by the conditional purchaser
under each such conditional sale contract and by the borrower under each such
loan security document. If Sub-subtenant shall desire pursuant to this Section
to air-condition any space to be leased under a new sublease not in effect at
the time of the submission to Landlord of the proposal referred to in paragraph
(1) of this Section, the part of the subrent payable under such sublease and
properly attributable to the cost of the air-conditioning installation in such
space may be treated, for purposes of this Section, as a subrent increase for
air-conditioning purposes, provided, however, that the total subrent for such
space shall exceed the subrent payable under the last previous sublease of such
space by an amount at least equal to the air-conditioning rent.
Landlord, Sublessor and Sub-sublandlord shall each be furnished with a copy
of any such conditional sale contract or loan security document.
ARTICLE 19
CONDITIONAL LIMITATIONS--DEFAULT PROVISIONS
SECTION 19.01. If any one or more of the following events (herein sometimes
called "Events of Default") shall happen:
(a) If Sub-subtenant shall default in the payment of rent
hereunder, or any part thereof, and such default shall continue for a
period of five days after notice thereof from Sub-landlord to
Sub-tenant, or
(b) If Sub-subtenant shall default in the payment of Basic Rent,
or any part thereof, and such default
70
shall continue for a period of five days after notice thereof by
Sub-sublandlord to Sub-subtenant, or
(e) if Sub-subtenant shall default in the making of any deposit
for Net Rent or Ground Rent, or any part thereof, and such default
shall continue for a period of five days after notice thereof by
Sub-sublandlord to Sub-subtenant, or
(d) if Sub-subtenant shall default in the making of any tax
deposit to be made pursuant to Section 3.02 of the Operating Lease or
any part thereof, and such default shall continue for a period of five
days after notice thereof by Sub-sublandlord to Sub-subtenant.
(e) if Sub-subtenant shall default in the payment of any other
item of additional rent or any other charge required to be paid
hereunder, or any part of same, for five days after notice thereof by
Sub-sublandlord to Sub-subtenant, or
(f) if Sub-subtenant shall default in the performance of or
compliance with any of the covenants, agreements, terms or provisions
contained in this lease, other than those referred to in the foregoing
paragraphs (a), (b), (c), (d) and (e) and such default shall continue
for a period of twenty days after written notice thereof from
Sub-sublandlord to Sub-subtenant, except that in connection with a
default not susceptible of being cured with due diligence within
twenty days, the time of Sub-subtenant within which to cure the same
shall be extended for such time as may be necessary to cure the same
with all due diligence, provided Sub-subtenant commences promptly and
proceeds diligently to cure the same, and further provided that such
period of time shall not be so extended as to subject Sub-sublandlord
to any criminal liability or to the possible termination of the
Operating Lease; or
(g) if Sub-subtenant shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall
file any petition or answer seeking
71
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any
future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Sub-subtenant or of all or any substantial part of its
properties of the Demised Premises or any interest of Sub-subtenant
therein; or
(h) if within sixty days after the commencement of any proceeding
against Sub-subtenant seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under the present or any future federal bankruptcy act or any other
present or future applicable federal, state or other statute or law,
such proceeding shall not have been dismissed, or if, within sixty
days after the appointment, without the consent or acquiescence of
Sub-subtenant, of any trustee, receiver or liquidator of Sub-subtenant
or of all or any properties or of the Demised Premises or any interest
of Sub-subtenant therein, such appointment shall not have been vacated
or stayed on appeal or otherwise, or if, within sixty days after the
expiration of any such stay, such appointment shall not have been
vacated; or
(i) if the Demised Premises shall be abandoned by Sub-subtenant;
then and in any such event Sub-sublandlord at any time thereafter during the
continuance of any such Event of Default may give give written notice to
Sub-subtenant, specifying such Event or Events of Default and stating that this
lease and the term hereby demised shall expire and terminate on the date
specified in such notice, which shall be at least five days after the giving of
such notice; and upon the date specified in such notice, subject to the
provisions of Section 19.04 hereof, this lease and the term hereby demised and
all rights of Sub-subtenant under this lease shall expire and terminate.
72
Nothing in the preceding paragraph shall be deemed to require
Sub-sublandlord to give the five day notice therein provided for prior to the
commencement of a summary proceeding for non-payment of rent or a plenary action
for the recovery of rent on account of any of the defaults specified in
paragraphs (a), (b), (c), (d) and (e), it being intended that such notice is
only for the purpose of creating a conditional limitation hereunder pursuant to
which this lease shall terminate and Sub-subtenant shall become a holdover
tenant.
If, at any time during the term of this lease, this lease is owned by more
than one corporation as Sub-subtenant, the provisions of paragraphs (g) and (h)
hereof shall apply to each such corporation.
If, by assignment or otherwise, the Sub-subtenant hereunder shall become
the Sublessee under the Operating Lease or under any new lease substituted for
the Operating Lease, this lease shall xxxxxxxxx, XXXX FACTO, be cancelled and
terminated if Landlord requests such cancellation within sixty days after
receiving written notice that Sub-subtenant has become such a Sublessee.
SECTION 19.02. Upon any expiration or termination of this lease, whether
pursuant to Section 19.01 hereof or by summary dispossess proceedings or
otherwise, Sub-subtenant shall quit and peacefully surrender the Demised
Premises to Sub-sublandlord, and upon or at any time after any such expiration
or termination, Sub-sublandlord may without further notice, enter upon and
re-enter the Demised Premises and possess and repossess itself thereof, by
force, summary proceedings, ejectment or otherwise, and may dispossess
Sub-subtenant and remove Sub-subtenant and all other persons and property from
the Demised Premises and may have, hold and enjoy the Demised Premises and the
right to receive all rental income of and from the same.
SECTION 19.03. At any time or from time to time after any such expiration
or termination, Sub-sublandlord may
73
relet the Demised Premises or any part thereof, in the name of Sub-sublandlord
or otherwise, for such term or terms (which may be greater or less than the
period which would otherwise have constituted the balance of the term of this
lease) and on such conditions (which may include concessions or free rent) as
Sub-sublandlord, in its uncontrolled discretion, may determine and may collect
and receive the rents therefor. Sub-sublandlord shall in no way be responsible
or liable for any failure to relet the Demised Premises or any part thereof, or
for any failure to collect any rent due upon any such reletting.
SECTION 19.04. No such expiration or termination of this lease shall
relieve Sub-subtenant of its liability and obligations under this lease and such
liability and obligations shall survive any such expiration or termination. In
the event of any expiration or termination, whether or not the Demised Premises
or any part thereof shall have been relet, Sub-subtenant shall pay to
Sub-sublandlord the rent, the Basic Rent, Net Rent, Ground Rent and all other
additional rent and other charges required to be paid by Sub-subtenant up to the
time of such expiration or termination of this lease, and thereafter
Sub-subtenant, until the end of what would have been the term of this lease in
the absence of such expiration or termination, shall be liable to
Sub-sublandlord for, and shall pay to Sub-sublandlord, as and for liquidated and
agreed current damages for Sub-subtenant's default,
(a) the equivalent of the amount of the rent, Basic Rent, Net
Rent, Ground Rent, the average of the Overage Rent paid over the
immediately preceding three years, and all other additional rent and
other charges which would be payable under this lease by Sub-subtenant
if this lease were still in effect, less
(b) the net proceeds of any reletting effected pursuant to the
provisions of Section 19.03 hereof, after deducting all
Sub-sublandlord's expenses in connection
74
with such reletting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, reasonable attorneys'
fees, alteration costs, and expenses of preparation for such reletting
and/or
(c) the net proceeds of any subrents received by Sub-sublandlord
from any subtenant.
Sub-subtenant shall pay such current damages (herein called "deficiency") to
Sub-sublandlord monthly on the days on which the rent would have been payable
under this lease if this lease were still in effect, and Sub-sublandlord shall
be entitled to recover from Sub-subtenant each monthly deficiency as the same
shall arise. At any time after any such expiration or termination, in lieu of
collecting any further monthly deficiencies as aforesaid, Sub-sublandlord shall
be entitled to recover from Sub-subtenant, and Sub-subtenant shall pay to
Sub-sublandlord, on demand, as and for liquidated and agreed final damages for
Sub-subtenant's default, an amount equal to the difference between the rent,
Basic Rent, Net Rent, Ground Rent, the average of the Overage Rent paid over the
immediately preceding three years, and all other additional rent reserved
hereunder for the unexpired portion of the term demised and the then fair and
reasonable rental value of the Demised Premises for the same period. In the
computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination and the fair and reasonable
rental value of the Demised Premises for the period for which such installment
was payable shall be discounted to the date of termination at the rate of four
per cent (4%) per annum. If the Demised Premises or any part thereof be re-let
by Sub-sublandlord for the unexpired term of said lease, or any part thereof,
before presentation of proof of such liquidated damages to any court, commission
or tribunal, the amount of rent reserved upon such re-letting shall prima facie
be the fair and reasonable rental value
75
for the part or the whole of the premises so re-let during the term of the
re-letting. Nothing herein contained shall limit or prejudice the right of
Sub-sublandlord to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
SECTION 19.05. Sub-subtenant hereby expressly waives, so far as permitted
by law, the service of any notice of intention to re-enter provided for in any
statute, and Sub-subtenant, for and on behalf of itself and all persons claiming
through or under Sub-subtenant (including but not limited to a leasehold
mortgagee or a creditor of Sub-subtenant), also waives any and all right of
redemption or re-entry or re-possession or to restore the operation of this
lease in case Sub-subtenant shall be dispossessed by a judgment or by warrant of
any court or judge or in case of re-entry or re-possession by Sub-sublandlord or
in case of any expiration or termination of this lease, subject to the right of
a Leasehold Mortgagee to obtain a new lease in strict accordance with the
provisions of Section 18.05 hereof. Sub-sublandlord and Sub-subtenant waive and
will waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matters whatsoever arising
out of or in any way connected with this lease, the relationship of
Sub-sublandlord and Sub-subtenant, Sub-subtenant's use or occupancy of said
premises, or any claim of injury or damage. The terms "enter", "re-enter",
"entry" or "re-entry", as used in this lease are not restricted to their
technical legal meaning.
SECTION 19.06. No failure by Sub-sublandlord to insist upon the strict
performance of any covenant, agreement,
76
term or condition of this lease or to exercise any right or remedy consequent
upon a breach thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
of such covenant, agreement, term or condition. No covenant, agreement, term or
condition of this lease to be performed or complied with by Sub-subtenant, and
no breach thereof, shall be waived, altered or modified except by a written
instrument executed by Sub-sublandlord. No waiver of any breach shall affect or
alter this lease, but each and every covenant, agreement, term and condition of
this lease shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.
SECTION 19.07. In the event of any breach or threatened breach by
Sub-subtenant of any of the covenants, agreements, terms or conditions contained
in this lease, Sub-sublandlord shall be entitled to enjoin such breach or
threatened breach and shall have the right to invoke any right and remedy
allowed at law or in equity or by statute, or otherwise as though re-entry,
summary proceedings, and other remedies were not provided for in this lease.
SECTION 19.08. Each right and remedy of Sub-sublandlord provided for in
this lease shall be cumulative and shall be in addition to every other right or
remedy provided for in this lease or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by Sub-sublandlord of any one or more of the rights or remedies provided for in
this lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by
Sub-sublandlord of any or all other rights or remedies provided for in this
lease or now or hereafter existing at law or in equity or by statute or
otherwise.
SECTION 19.09. Interest at the rate of 6% per annum shall accrue upon any
rent and all additional rent payable
77
or to be deposited under this lease during any period while the payment or
deposit thereof by Sub-subtenant is delayed.
ARTICLE 20
RENEWAL PRIVILEGES
SECTION 20.01. Subject to the provisions of Sections 20.03 and 20.04
hereof, the term of this lease may, at the option of Sub-subtenant, by written
notice to Sub-sublandlord as herein provided, by renewed and extended as
follows:
FIRST RENEWAL TERM--May 29,1976 to December 28, 1987
SECOND RENEWAL TERM--December 29,1987 to December 28, 2008
THIRD RENEWAL TERM--December 29,2008 to December 28, 2029
Any such renewal option shall be exercised by written notice given by
Sub-subtenant to Sub-sublandlord at least 24 and not more than 30 months prior
to the commencement of the particular renewal term, and (subject to the
provisions of Section 20.03 hereof) if such notice shall have so been given and
this lease, the Operating Lease, the Mesne Lease and the Ground Lease shall be
in effect on the day next preceding the commencement of such renewal term this
lease shall thereupon be automatically renewed for such renewal term.
Each renewal term shall be upon the same terms, covenants and conditions as
in this lease provided, except that there shall be no privilege to Sub-subtenant
of renewals of the terms of this lease beyond the Third Renewal Term referred to
above. Payment of all additional rent and other charges on the part of
Sub-subtenant to be made as in this lease provided shall continue to be made
during each of
78
such renewal terms. Any termination of this lease shall terminate any right of
renewal hereunder.
SECTION 20.02. In the event that Sub-subtenant shall fail to exercise its
option to renew the term of this lease within the applicable period prescribed
in this Article 20 Sub-sublandlord shall give notice thereof to any Leasehold
Mortgagee entitled to notice under Section 18.04 hereof and any such Leasehold
Mortgagee may (subject to the provisions of Section 20.03 thereof), within 30
days after the giving of such notice, elect that this lease be renewed for the
relevant renewal term upon the terms, covenants and conditions and with the same
effect as though such option had been exercised by Sub-subtenant as in this
Article 20 provided, except that Sub-subtenant shall not be the lessee in the
renewal term and shall have no obligations thereunder and the Leasehold
Mortgagee shall deliver to Sub-sublandlord an assumption agreement, executed in
recordable form wherein and whereby such Leasehold Mortgagee or its designee
shall assume the performance of all the terms, covenants and conditions of this
lease as so renewed.
SECTION 20.03. The attempted exercise by Sub-subtenant or a leasehold
mortgagee, as the case may be of any option to renew this lease shall not become
effective, nor shall any such renewal term be created if either
(a) at the time when notice of the exercise of such option shall
be given to Sub-sublandlord; or
(b) on the day next preceding the purported commencement date of
the renewal term; or
(c) during the period of sixty days next preceding the last date
on which Sub-sublandlord may notify the Sublessor of exercise of its
corresponding privilege of renewing the Operating Lease,
an Event of Default hereunder shall have occurred, Sub-subtenant shall have been
notified thereof, and such Event
79
of Default shall not have been cured within the time or times permitted by this
lease.
SECTION 20.04. Sub-sublandlord agrees that if it shall have received a
notice of renewal pursuant to this Article, it will at least ninety days before
the expiration of the period within which notice of renewal of the Operating
Lease may be effectively given, either
(a) give notice to Sublessor of its election to exercise its
corresponding renewal privilege under the Operating Lease, or
(b) give notice to Sub-subtenant to the effect that
Sub-sublandlord does not desire to renew this lease and the Operating
Lease.
If Sub-sublandlord shall fail to give the notice to Sublessor referred to in
paragraph (a) of this Section, then and in such event (whether or not the notice
referred to in paragraph (b) of this Section shall have been given)
Sub-subtenant shall be entitled to exercise the rights of renewal provided for
in Article 20 of the Operating Lease on behalf and in the name of
Sub-sublandlord, and Sub-sublandlord, if so requested, shall execute a written
instrument confirming the permission hereby granted and effective as of the
expiration of the then current term shall assign the Operating Lease to
Sub-subtenant which, pursuant to Section 18.01 thereof, shall assume due
performance of the obligations on the Sublessee's part to be performed to the
end of the term thereof; provided, however, the Sub-sublandlord shall have no
obligation or responsibility to obtain the consent of Landlord to such
assignment.
SECTION 20.05. If Sub-sublandlord shall acquire the interest of the Grand
Lessor and/or the Landlord and/or the Sublessor in and to the Demised Premises,
Sub-sublandlord, in addition to its rights and obligations hereunder,
80
shall have the same rights and obligations with respect thereto as the Ground
Lessor and/or the Landlord and/or the Sublessor (including without limitation
the right to collect the Ground Rent and/or the Net Rent and/or the Basic Rent
and Overage Rent) as though the Ground Lease and/or the Mesne Lease and/or the
Operating Lease was to continue in full force and effect for the duration of the
term of this lease, regardless of whether or not the Ground Lease and/or the
Mesne Lease and/or the Operating Lease shall have been terminated by
cancellation, merger, or otherwise after such acquisition. If Sub-subtenant
shall acquire fee title to the Demised Premises, the Ground Lessor's, the
Landlord's or the Sublessor's interest therein, this lease, the Ground Lease
and/or the Mesne Lease and/or the Operating Lease shall remain in full force and
effect without affecting the obligations of Sub-sublandlord or Sub-subtenant
hereunder.
ARTICLE 21
INVALIDITY OF PARTICULAR PROVISIONS
SECTION 21.01. If any term or provision of this lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this lease shall be valid and be enforced to the fullest extent
permitted by law.
ARTICLE 22
NOTICES
SECTION 22.01. All notices, demands and requests required under this lease
shall be in writing. All such notices, demands and requests shall be deemed to
have
81
been properly given if served personally, or if sent by United States registered
mail, postage prepaid, addressed as hereinafter provided. All such notices,
demands and requests mailed to Sub-sublandlord shall be addressed to
Sub-sublandlord, c/o Kahr & Xxxxxxx & Xxxxxx, at 000 Xxxx Xxxxxx, Xxx Xxxx 22,
N. Y., or at such other address in the City and State of New York, as
Sub-sublandlord may from time to time designate by written notice to
Sub-subtenant. All such notices, demands and requests to Sub-subtenant shall be
addressed to Sub-subtenant, attention Xxxxx X. Helmsley, 00 X. 00 Xxxxxx, Xxx
Xxxx 17, N. Y., or at such other address as Sub-subtenant may from time to time
designate by written notice to Sub-sublandlord.
SECTION 22.02. Notices, demands and requests which shall be served by
registered mail upon Sub-sublandlord or Sub-subtenant in the manner aforesaid,
shall be deemed sufficiently served or given for all purposes hereunder at the
time such notice, demand or request shall be mailed by United States registered
mail as aforesaid in any Post Office or Branch Post Office regularly maintained
by the United States Government in the State of New York. Notices, demands and
requests to be served upon Sub-subtenant may be served by the attorney for
Sub-sublandlord in Sub-sublandlord's behalf.
ARTICLE 23
CONDITION OF AND TITLE TO PROPERTY
QUIET ENJOYMENT
SECTION 23.01. Sub-subtenant represents and agrees that the Demised
Premises, the title thereto, the sidewalks and structures adjoining the same,
any subsurface conditions thereof, and the present uses and non-uses thereof,
have been examined by Sub-subtenant and that Sub-subtenant accepts the same in
the condition or state in which they or any of them now are, without
representation or
82
warranty, express or implied in fact or by law, by Sub-sublandlord and without
recourse to Sub-sublandlord, as to the title thereto, the nature, condition or
usability thereof or the use or uses to which the Demised Premises or any part
thereof may be put.
SECTION 23.02. Sub-sublandlord covenants and agrees that Sub-subtenant,
upon paying the rent, Basic Rent, Overage Rent, Net Rent, Ground Rent and all
other and additional rent and other charges herein provided for and observing
and keeping all covenants, agreements and conditions of this lease on its part
to be kept, shall quietly have and enjoy the Demised Premises during the term of
this lease without hindrance or molestation by anyone claiming by, or through
Sub-sublandlord, subject, however, to the exceptions, reservations and
conditions of this lease.
SECTION 23.03. In case Sub-sublandlord shall assign or otherwise dispose of
its interest in the Demised Premises, all liabilities and obligations on the
part of Sub-sublandlord under this lease accruing after such assignment or
disposal shall terminate upon such assignment or disposal, and thereupon all
such liabilities and obligations shall be binding upon the new owner of such
interest; provided, however, that any funds held by Sub-sublandlord hereunder in
which Sub-subtenant has an interest hereunder (except for such funds as shall
have been delivered to Landlord pursuant to the terms of the Mesne Lease, which
funds may continue to be held by Landlord) shall be turned over to the new owner
of such interest or, to the extent required by Sections 5.05 or 16.10 hereof, to
the trustee or trustees provided for in said Sections.
ARTICLE 24
EXCAVATION AND SHORING
SECTION 24.01. If any excavation shall be made or contemplated to be made
for building or other purposes upon
83
property or streets adjacent to or nearby the Demised Premises, Sub-subtenant
either.
(a) shall afford to the person or persons causing or authorized
to cause such excavation the right to enter upon the Demised Premises
for the purpose of doing such work as such person or persons shall
consider to be necessary to preserve any of the walls or structures of
the Building from injury or damage and to support the same by proper
foundations, or
(b) shall, at Sub-subtenant's expense (without hereby waiving any
claims against the aforesaid person or persons), do or cause to be
done all such work as may be necessary to preserve any of the walls or
structures of the Building from injury or damages and to support the
same by proper foundations.
Sub-subtenant shall not, by reason of any such excavation or work, have any
claim against Sub-sublandlord for damages or indemnity or for suspension,
diminution, abatement or reduction of rent under this lease.
ARTICLE 25
ARBITRATION
SECTION 25.01. In any case in which it is provided by the terms of this
lease that any matter shall be determined by arbitration (otherwise than
pursuant to the Ground Lease), such arbitration shall be conducted in accordance
with the rules then obtaining of the American Arbitration Association, and
judgment upon the award rendered may be entered in any Court having jurisdiction
thereof.
SECTION 25.02. In the event that any dispute hereunder shall be submitted
to arbitration, and if the same subject matters shall also be in dispute between
Sublessor and Sub-sublandlord under the Operating Lease and shall have
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been submitted to arbitration pursuant to the Operating Lease, the arbitration
between Sublessor and Sub-sublandlord and the arbitration between
Sub-sublandlord and Sub-subtenant shall be held simultaneously before the same
arbitrators, and any decision imposing an obligation or duty upon
Sub-sublandlord shall be construed as placing a similar obligation or duty upon
Sub-subtenant. In any such arbitration, Sub-sublandlord and Sub-subtenant will
cooperate in the selection of the arbitrator or of one of the arbitrators, if
there shall be more than one, and in the conduct of the proceeding.
ARTICLE 26
MISCELLANEOUS
SECTION 26.01. At any time and from time to time, Sub-sublandlord, on at
least twenty days' prior written request by Sub-subtenant, and Sub-subtenant, on
at least twenty days' prior written request by Sub-sublandlord, will deliver to
the party making such request a statement in writing certifying that this lease
is unmodified and in full force and effect (or if there shall have been
modifications that the same is in full force and effect as modified and stating
the modifications) and the dates to which the rent and other charges have been
paid, whether there are any existing set-offs or defense to the rent and all
additional rent and other charges due to Sub-sublandlord under this lease, and
stating whether or not to the best knowledge of the party executing such
certificate the party requesting such statement is in default in performance of
any covenant, agreement or condition contained in this lease and, if so,
specifying each such default of which the executing party may have knowledge.
SECTION 26.02. The captions of this lease and the table of contents
preceding this lease are for convenience and
85
reference only and in no way define, limit or describe the scope or intent of
this lease.
SECTION 26.03. It is the intention of the parties hereto that the estate
acquired hereunder by Sub-subtenant shall not merge with or into any other
estate, whether lesser or greater, in the Demised Premises now held or hereafter
acquired by said Sub-subtenant or by any disclosed or undisclosed principal of
said Sub-subtenant.
SECTION 26.04. In all cases where the consent or approval of Landlord or
Sublessor shall be required under this lease or the Mesne Lease or the Operating
Lease, Sub-subtenant shall, prior to performing the act or thing for which such
consent or approval is required, furnish Sub-sublandlord with proof reasonably
satisfactory to Sub-sublandlord that such consent or approval has been obtained,
and no consent or approval by Sub-sublandlord, if required in any case where the
consent or approval of Landlord or Sublessor is also required, shall be
effective unless and until such proof has been delivered to Sub-sublandlord.
Wherever under the provisions of the Operating Lease Sub-sublandlord as the
Sublessee thereunder shall have any right, claim or cause of action against
Sublessor by reason of the failure of Sublessor to carry out any agreement,
covenant or undertaking therein made by Sublessor with Sublessee, Sub-subtenant
may on at least three days notice to Sub-sublandlord (or on less notice or
without notice in case of an emergency or in any other case where three days
notice may not be given without substantial prejudice to Sub-subtenant) take
such action and institute such proceedings against Sublessor (which may be taken
or instituted in the name of Sub-sublandlord, but without expense to
Sub-sublandlord) as may be necessary or desirable to enforce performance of, or
to recover damages for Sublessor's failure to carry out, such agreement,
covenant or undertaking.
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SECTION 26.05. Upon the expiration or earlier termination of this lease,
then, unless Sub-sublandlord shall have no further interest in the Demised
Premises Sub-subtenant shall deliver to Sub-sublandlord all subleases, lease
files, plans and all other documents in the possession of Sub-subtenant or its
managing agent which may be required for the operation and management of the
Demised Premises, together with all prepaid subrents and all security deposits.
This provision shall survive any such expiration or termination of this lease,
and Sub-sublandlord and Sub-subtenant agree that Sub-sublandlord will suffer
irreparable injury in the event of violation of this provision, and that
Sub-sublandlord shall be entitled to a mandatory injunction (including a
temporary mandatory injunction, pendente lite) to enforce the provisions hereof.
SECTION 26.06. Without hereby limiting the effect of applicability of any
specific provision of this lease of like or similar import, whenever under any
provision of this lease expressly providing or requiring that a consent or
approval shall not be unreasonably withheld, or that an act, forbearance,
quantity, amount, sum of money, value, time limit or any other matter or thing
shall be reasonable (or shall not be unreasonable) a dispute or disagreement
shall arise between Sub-sublandlord and Sub-subtenant as to whether or not the
withholding of the consent or approval in question is unreasonable or as to
whether or not the act, forbearance, quantity, amount, sum of money, value, time
limit or other matter or thing in question is reasonable (or not unreasonable)
such dispute or disagreement shall be settled by arbitration as provided in
Article 25 hereof.
SECTION 26.07. This lease shall be construed and enforced in accordance
with the laws of the State of New York.
SECTION 26.08. The covenants and agreements herein contained shall bind and
inure to the benefit of Sub-sublandlord,
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its successors and assigns, and Sub-subtenant, his legal representatives,
successors and assigns, except as otherwise provided herein.
IN WITNESS WHEREOF, Sub-sublandlord and Sub-subtenant have duly executed
this lease the day and year first above written.
PRECISION DYNAMICS CORPORATION
By /s/ [ILLEGIBLE]
-----------------------------
Assistant Vice-President
/s/ Xxxxx X. Helmsley
-----------------------------
XXXXX X. HELMSLEY,
d/b/a Graybar
Building Company
88
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the 24th day of June, 1964, before me personally came Xxxxx Xxxx, to me
known, who, being by me duly sworn, did depose and say that he resides at 55
[ILLEGIBLE] Rockville Centre, New York; that he is an Assistant Vice-President
of PRECISION DYNAMICS CORPORATION, the corporation described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the board of directors of said corporation, and that he
signed his name thereto by like order.
[ILLEGIBLE]
[SEAL]
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the 15th day of June, 1964, before me personally came Xxxxx X. Helmsley,
to me known to be the individual described in, and who executed the foregoing
instrument, and acknowledged that he executed the same.
[ILLEGIBLE]
[SEAL]
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SCHEDULE A
DESCRIPTION OF GRANT OF TERM
The term "GRANT OF TERM" shall mean the instrument made by and between The
New York Central Railroad Company (hereinafter in this Schedule and Schedule B
hereto called the "Railroad Company") and New York State Realty and Terminal
Company (hereinafter in this Schedule and Schedule B hereto called the "Realty
Company"), dated July 30, 1925, and recorded in the Office of the Register of
the County of New York (now the Office of the Register of the City of New York
in the County of New York) on September 12, 1925, in Liber 3505 of Conveyances,
at Page 347
(a) as the same may have been modified by agreements dated October 21,
1927, and November 2, 1938, and recorded in said Register's Office in Liber 3672
of Conveyances at Page 388 and Liber 4278 of Conveyances at Page 217
respectively
(b) as the same was amended, modified and extended by instruments dated
April 12, 1944, and recorded in said Register's Office on May 26, 1944, in Liber
4287 of Convelances, at Page 201, and dated September 28, 1953, and recorded in
said Register's Office on October 9, 1953, in Liber 4854 of Conveyances, at Page
370; and
(c) as the same was amended, modified and extended by instrument dated
December 30, 1957, and recorded in said Register's Office on December 31, 1957,
in Liber 5024 of Conveyances, at Page 325.
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SCHEDULE B
DESCRIPTION OF GROUND LEASE
The term "GROUND LEASE" shall mean the instrument made between the Realty
Company, as Lessor, and Eastern Offices, Inc., as Lessee, dated July 30, 1925,
and recorded in said Register's Office on September 12, 1925, in Liber 3496 of
Conveyances, at Page 183
(a) as the same was modified by agreements dated respectively October 21,
1927, June 19, 1928, and November 2, 1938, and recorded respectively in said
Register's Office in Liber 3672 of Conveyances, at Page 388, Liber 3901 of
Conveyances, at Page 228, and Liber 4278 of Conveyances, at Page 217,
(b) as the same was further modified and renewed by agreement dated April
5, 1944, and supplemental agreement dated April 12, 1944, and recorded in said
Register's Office on May 26, 1944, in Liber 4287 of Conveyances, at Pages 208
and 195, respectively,
(c) as further modified by agreement dated July 20, 1950, and recorded in
said Register's Office on August 1, 1950, in Liber 5174 of Conveyances, at
Page 265,
(d) as the same was further amended and the term thereof revised and
extended by Modified Agreement of Lease made as of January 1, 1953, and recorded
in said Register's Office on October 9, 1953, in Liber 4854 of Conveyances, at
Page 307,
(e) as the same was further modified, and the term thereof revised and
extended, by Modified Agreement of Lease dated December 30, 1957, and recorded
in said Register's Office on December 31, 1957, in Liber 5024 of Conveyances, at
Page 251; and
(f) the Lessee's interest in which lease was, after mesne assignments,
thereof, assigned to and is now held by Metropolitan Life Insurance Company by
agreement dated December 30, 1957, and recorded in said Register's Office on
December 31, 1957, in Liber 5024 of Conveyances, at Page 613.
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SCHEDULE C
DESCRIPTION OF MESNE LEASE
The term "Mesne Lease" shall mean the instrument made between Xxxx & Xxxxx,
Inc. and Graysler Corporation, as Landlord, and Xxxx X. Xxxxxxxx, as Tenant,
dated December 30, 1957, and recorded in said Register's office on December 31,
1957 in Liber 5024 of Conveyances at Page 430, which lease was corrected and
amended by Agreement dated February 27, 1958 between Metropolitan Life Insurance
Company, Xxxxxxxx X. Wien, Xxxx & Xxxxx, Inc. and Graysler Corporation and
recorded in said Register's office on March 11, 1958, in Liber 5032 of
Conveyances at Page 430, the Tenant's interest in which lease was, after a mesne
assignment, assigned to and is now held by Graybar Building Associates by
assignment dated April 30, 1958 and recorded in said Register's office on April
30, 1958 in Liber 5036 of Conveyances, at Page 569, which lease was further
amended by agreement dated as of June 1, 1964, between Metropolitan Life
Insurance Company, Graybar Building Associates and Precision Dynamics
Corporation intended to be recorded in said Register's Office simultaneously
herewith.
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SCHEDULE D
DESCRIPTION OF OPERATING LEASE
The term "Operating Lease" shall mean the instrument made between
Xxxx X. Xxxxxxxx, as Sublessor and Xxxx Xxxxxxxx, as Sublessee, dated December
30, 1957 and recorded in said Register's office on December 31, 1957 in Liber
5024 of Conveyances at Page 523, which lease was corrected and amended by
Agreement dated February 27, 1958 between Metropolitan Life Insurance Company,
Xxxxxxxx X. Wien, Xxxx & Xxxxx, Inc. and Graysler Corporation and recorded in
said Register's office on March 11, 1958, in Liber 5032 of Conveyances at Page
430, the Sublessee's interest in which lease was, after mesne assignments
thereof assigned to and is now held by Precision Dynamics Corporation, which
lease was further amended by agreement dated as of June 1, 1964, between
Metropolitan Life Insurance Company, Graybar Building Associates and said
Precision Dynamics Corporation intended to be recorded in said Register's Office
simultaneously herewith.
