First Amendment of
Lease May 22, 1985
FIRST AMENDMENT OF LEASE
AGREEMENT dated as of May 22, 1985 between OLYMPIA & YORK BATTERY PARK
COMPANY, a New York partnership, having an office at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (herein called "Landlord"), and DOW XXXXX & COMPANY, INC., a
Delaware corporation, having an office at 00 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (herein called "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a lease dated October 21,
1983 (the "Lease") whereby Landlord demised to Tenant, upon the terms, covenants
and conditions contained therein, certain premises in the building currently
known as Building A, being constructed at the World Financial Center in the
City, County and State of New York; and
WHEREAS, Landlord and Tenant desire to amend the Lease in the respects
and upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
1. All terms used in this Agreement which are defined in the Lease
shall have the respective meanings set forth in the Lease, unless. any such term
or terms are defined otherwise in this Agreement.
2. The space demised to Tenant pursuant to Section 1.02(a) of the
Lease is hereby increased by adding thereto (a) the entire 16th and 17th floors
of the Building, (b) approxi-
mately 146 rentable square feet of space of the 18th floor of the Building,
which is more particularly described in Exhibit A annexed hereto (the "Elevator
Premises"), (c) approximately 1,187 rentable square feet of space on the cellar
through eighth floors and 18th through 40th floors of the Building, which is
more particularly described in Exhibit B annexed hereto (the "Duct Premises"),
and (d) the following (collectively, the "Lobby Premises": (i) approximately
1,000 rentable square feet of space on the +32' -0" lobby level of the Building,
which is more particularly described in Exhibit C annexed hereto, and (ii) a
Halon duct and encasement containing approximately 25 rentable square feet,
which is more particularly described in Exhibit D annexed hereto; so-that the
16th and 17th floors of the Building, the Elevator Premises, the Duct Premises
and the Lobby Premises, are also part of the Premises as if originally demised
under the Lease. The 16th and 17th floors of the Building (but not the Lobby
Premises) shall also be deemed to be part of the Office Premises. The Elevator
Premises and the Duct Premises shall be deemed to be part of the Office Premises
for purposes of Article 1, but the Elevator Premises and the Duct Premises shall
be deemed to be part of the Additional Premises for purposes of the other
Articles of the Lease (except in Sections 2.01 and 9.01, where the Elevator
Premises and the Duct Premises shall not be deemed to be part of any other
portion of the Premises) and for purposes of the Supplemental Agreement. If the
actual
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rentable square footage of the completed Elevator Premises, the Duct premises or
Lobby Premises (as measured by Landlord following completion) differs from the
rentable square footage recited above, then such actual footage shall control
for purposes hereof, and Landlord and Tenant will, upon request by the other,
confirm the same in writing.
3. Section 1.03 of the Lease is hereby deleted in its entirety from
the Lease.
4. Article 4 of the Lease is hereby amended in its entirety to read
as follows:
"ARTICLE 4
Expansion Space
4.01. Tenant shall lease the entire (except as provided in the last
sentence of this Section 4.01) 18th floor of the Building (the
"Expansion Space"), and the Expansion Space shall be added to and form
a part of the Office Premises (and the Premises), for the period (a)
beginning on the tenth anniversary of the Commencement Date, or at
Landlord's option, on such later date (which shall not be later than
the twelfth anniversary of the Commencement Date) as Landlord shall
designate by notice to Tenant given before the ninth anniversary of
the Commencement Date and (b) ending on the expiration of the term of
this lease. The Fixed Rent for the Expansion Space shall be determined
as provided in Section 4.02, and, during such period, the terms
"Premises" and "Office Premises" as used in this lease shall include
the Expansion Space. The Elevator Premises and the Duct Premises shall
continue to be part of the Premises, but shall not be considered part
of the Expansion Space.
4.02. The annual Fixed Rent for the Expansion Space shall be the
annual fair rental value for the Expansion Space during the period
(herein called the "Estimation Period") beginning on the tenth
anniversary of the Commencement Date
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and ending on the expiration of the then current term of this lease,
determined in accordance with the provisions of this Section. Landlord
shall notify Tenant of Landlord's estimate of the annual fair rental
value of the Expansion Space for the Estimation Period not later than
the ninth anniversary of the Commencement Date. Within 60 days after
the giving of such notice, Tenant shall notify Landlord whether Tenant
accepts or rejects Landlord's estimate. If Tenant accepts Landlord's
estimate or if Tenant fails to reject Landlord's estimate within such
60-day period, then the annual Fixed Rent for the Expansion Space
shall be the annual Fixed Rent set forth in Landlord's estimate. If
Tenant rejects Landlord's estimate for the Expansion Space within such
60-day period., then the dispute shall be determined by arbitration in
accordance with Article 34 of this lease. In determining the fair
market rental for the Expansion Space at the time of the commencement
of the Estimation Period, the parties and, if applicable, the
arbitrators shall take into account all relevant factors, including
without limitation, the Fixed Rent and Additional Charges at which
Landlord is leasing other space in the Building (taking into account
the floor(s) to be rented and all other factors in such other leases),
the escalation provisions and base years provided herein, the rents
and other charges then being charged for comparable space in
comparable buildings in the downtown area of New York City, the
condition of the Expansion Space if improved, the age and condition of
the Building, and the character and reputation of the Building. In no
event, however, shall the per rentable square foot annual Fixed Rent
of the Expansion Space, for the period (herein called the "Expansion
Period") during which the Expansion Space will be part of the Office
Premises, be less than the per rentable square foot Fixed Rent for any
portion of the Office Premises on the commencement date of the
Expansion Period, subject to increases pursuant to Section 1.05(b). If
the Fixed Rent for the Expansion Space shall not have been determined
(by arbitration or by agreement between the parties) before the
commencement of the Expansion Period, then pending such determination,
Tenant shall pay Fixed Rent for the Expansion Space at the estimated
rate specified in Landlord's no-
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xxxx given pursuant to the second sentence of this Section. If such
determination shall be less than Landlord's estimate, Landlord shall
promptly refund to Tenant any overpayment of Fixed Rent, with interest
as hereinafter provided, or, at Tenant's option, permit Tenant to
credit the amount of such overpayment, and such interest, against
subsequent payments of Fixed Rent; and if such determination shall be
greater than Landlord's estimate, Tenant shall pay the deficiency in
Fixed Rent that shall have accrued, with interest as hereinafter
provided, within 10 days after demand therefor. Any such overpayment
or deficiency shall bear interest from the date paid or accrued, as
the case may be, to the date on which the overpayment is refunded or
credited or the deficiency is paid, as the case may be, at the rate
specified in Section 3.10.
4.03. The Base PILOT and the Base Operating Expenses for the
Expansion Space shall be the same as are provided in Article 3 for the
rest of the Office Premises.
4.04. Tenant shall take the Expansion Space "as is", unless (a) the
Expansion Space has never been improved for occupancy by any tenant
with an installation at least equal to the standard finish work
described in Exhibit C attached hereto and made a part hereof (herein
called "Building Standard Installation"), or (b) the Expansion Space
has been so improved, but has been damaged by fire or other casualty
and the Expansion Space has not been restored in either of which
events Landlord shall provide a Building Standard Installation for the
Expansion Space prior to the commencement of the Expansion Period.
4.05. The termination of this lease during the original term of this
lease shall also terminate and render void Tenant's right (but not
Tenant's obligation, to the extent the existence of such obligation
shall affect the measure of Landlord's damages) to lease the Expansion
Space, and nothing contained in this Article shall prevent Landlord
from exercising any right or option granted to or reserved by Landlord
in this lease to terminate this lease. None of Tenant's rights,
options or elections set forth in the preceding Sections of this Ar-
5
ticle may be severed from this lease or separately sold, assigned or
transferred.
4.06. If Landlord shall be unable to give possession of the
Expansion Space on the commencement of the Expansion Period because of
the holding over or retention of possession of any tenant, undertenant
or occupant of the Expansion Space, then (a) Landlord agrees to
diligently exercise all legal rights and remedies to dispossess any
such hold-over tenant, under-tenant or occupant, (b) Landlord shall
not be subject to any liability for failure to give possession on such
commencement date and the validity of this lease shall not be impaired
under such circumstances nor shall the same be construed in any way to
extend the term of this lease, but the Fixed Rent and the Additional
Charges payable hereunder for the Expansion Space shall be abated
until Landlord has tendered possession by giving notice to Tenant that
the Expansion Space is ready for Tenant's occupancy. The provisions of
this Section are intended to constitute "an express "provision to the
contrary" within the meaning of Section 223-a of the New York Real
Property Law.
4.07. Landlord wall notify Tenant, within 30 days after the entry by
Landlord into any lease for all or part of the Expansion Space, of the
date on which the term of such lease is scheduled to expire. Landlord
will also notify Tenant of any change in any such expiration date
within 30 days after such a change. Unless this lease shall terminate,
Landlord shall not enter into any lease of the Expansion Space if the
initial or any renewal term of such lease is scheduled to expire after
the twelfth anniversary of the Commencement Date.
4.08. Landlord's option under clause (a) of the first sentence of
Section 4.01, to postpone for up to two years the commencement of the
inclusion within the Premises of the Expansion Space, may be exercised
with respect to all, but not part, of the Expansion Space.
4.09. Tenant shall not connect any additional electrical equipment
of any type in the Expansion Space to the Building electric
distribution system, other than lamps, typewriters and other small
office machines which consume com-
6
parable amounts of electricity, without Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed
as long as the amounts of electricity to be consumed do not exceed the
normal capacity of the Building system feeders, risers, electrical
conductors, electrical equipment and wiring.
4.10. At Tenant's request, Landlord, at Tenant's expense, (a) shall
cause the low midrise (B Bank) Building elevators to open onto either
or both of the 16th and/or 17th floors of the Building as Tenant shall
designate in such request and (b) shall cause the high midrise (C
Bank) Building elevators (which serve the 18th floor) to open onto
whichever of the 15th, 16th or 17th floor of the Building (but not
more than one of such floors) Tenant shall designate in such request;
in each case during the portion of the term of this lease when the
Expansion Space is included in the Premises."
5. The Lease sets out certain standards and obligations between
Landlord and Tenant with respect to the electrical specifications of the
Premises. The Building's electrical system is based upon a second contingency
design, whereby two service components may be disabled and the electrical system
will continue to provide its design capacity. As Tenant wishes to place a
greater electrical load on both the Building and the Office Premises than
permitted under the Lease and than the Building's electrical system can reliably
support, Landlord and Tenant agree as follows:
(a) Tenant will utilize its generators to service that portion of
Tenant's load for the Office Premises that exceeds the Building's
electrical capacity allocated to the Office Premises. Tenant and Landlord
shall select the initial loads that Landlord will shed when Tenant's
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load for the Office Premises exceeds the Building's capacity, according to
the procedure set forth in the following subparagraphs. The provisions of
this Paragraph 5 relate solely to the Office Premises. Tenant's electrical
load for the Lobby Premises and the Additional Premises shall at all times
comply with the limitations set forth in the Lease.
(b) At those times when only one service component is disabled ("First
Contingency Mode"), or when no service components are disabled, Tenant may
place its entire electrical load upon the Building's electrical system.
(c) At those times when the Building's electrical system is in a First
Contingency Mode, Landlord will use its best efforts to provide Tenant with
an electrical signal that will so inform it. At those times when two
service components within the Building are disabled ("Second Contingency
Mode"), Landlord will use its best efforts to provide Tenant with a second
electrical signal than will so inform it. Landlord will also endeavor to
provide Tenant with digital information, the design of which shall be
selected by Landlord, that will advise Tenant of the status of the
electrical load use within the Building. Tenant shall bear all costs
associated with the purchase, installation, maintenance or repair of all
such signaling equipment and equipment collateral thereto, and shall not
unreasonably withhold its approval
8
of Landlord's plans with respect thereto. Tenant's approval shall be deemed
given unless objected to by written notice given to Landlord within five
business days after receipt by Tenant of such plans.
(d) Within one minute of the occurrence of (i) a Second Contingency
Mode and (ii) the operation of the Building's electrical load at or above
ninety-five percent (95%) of the Building's electrical capacity, Landlord
may automatically shed Tenant's excess loads. Tenant acknowledges that its
loads will be automatically shed when the Building's electrical capacity
reaches such level. Landlord shall consult with Tenant, at mutually
agreed-upon intervals, to develop a schedule of sheddable loads that will
specify the sheddable and nonsheddable load and include a selection and
order for the shedding of Tenant's loads. If Tenant fails to consult with
Landlord concerning the selection of Tenant's loads for shedding within 30
days of a written request by Landlord for a consultation, Landlord may
choose, in its sole discretion, which of Tenant's loads it shall shed. In
such event, Landlord shall reasonably advise Tenant of those Tenant loads
it selects to shed. In the event Landlord and Tenant are unable to agree
upon which of Tenant's loads shall be shed, Landlord may choose such loads,
consistent with the requirements of the Building and the Lease.
9
(e) Landlord shall return Tenant's shedded loads to the Building's
electrical system upon the occurrence of the earlier of:
(i) one hour after the Building has returned to a First
Contingency Mode for a period of one hour, or
(ii) one hour after the Building's total electrical load has
reduced to a level that, when adding Tenant's shed load to the
Building's total electrical load, the Building's total electrical load
will not exceed ninety percent ( 90%) of the Building's electrical
capacity. Landlord, in its sole discretion, shall determine whether
the addition of Tenant's load possesses the possibility of causing the
Building's total electrical load to exceed the ninety percent (90%).
(f) Landlord will monitor the peak demands of nonsheddable load within
the Premises. If Landlord determines that the peak nonsheddable load in the
Premises is in excess of 3.5 xxxxx per usable square foot at any time,
Landlord will reasonably endeavor to so notify Tenant. Upon such
determination, Landlord, at its option, may install additional automatic
load shedding equipment that shall reduce the nonsheddable load to 3.5
xxxxx per usable square foot or make whatever other arrangements it deems
advisable, including requiring Tenant to service a
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greater portion of its own load. The installation of such additional load
shedding equipment shall be at Tenant's sole cost and expense.
(g) In the event that any public authority or utility company objects
to the installation or maintenance of the load shedding equipment or if
Landlord shall in good faith determine that any installed load shedding
equipment is violative of any law or regulation, Landlord shall have the
right, at Tenant's sole cost and expense, to disconnect such load shedding
equipment, or, if feasible, to replace or modify the load shedding system
with any other equipment or system which Landlord determines will meet the
electrical requirements, including, but not limited to, the installation of
one or more additional transformer vaults. If Landlord determines that it
possesses sufficient time to review such modification with Tenant, Tenant
may review such modification and submit to Landlord alternative means to
correct such delivery in the load shedding system. Tenant shall pay all
casts associated with the installation, maintenance and repair of such
additional equipment required by Landlord. Tenant shall pay all costs,
including attorneys' fees, expenses, fines, penalties and damages incurred
or imposed upon Landlord or any Superior Lessor or any Superior Mortgagee
by reason of the actions of any public au-
11
thority or utility company related to the load shedding system.
(h) Tenant shall pay all costs associated with the installation,
maintenance and repair of the load shedding equipment, including
modification and replacement of the equipment where necessary or as
contemplated elsewhere in this Paragraph 5. Such costs shall include,
without limitation, the cost of materials, payments to subcontractors,
architectural and engineering costs, any revisions to building plans,
insurance, field labor, removal of debris, field supervision, costs for
elevator operators, teamsters and operating *engineers, and permit and
similar fees. The load shedding equipment shall become part of the Office
Premises, as defined in the Lease, for Tenant's use according to the terms
of this Paragraph 5 during the term of the Lease.
(i) All sums due under this Paragraph 5 shall constitute Additional
Charges under the Lease and Tenant shall pay any such sum within 15 days of
receipt of Landlord's invoice, which shall reasonably specify by category
those costs incurred by Landlord. If Tenant fails to make any payments due
under or otherwise breaches this Paragraph 5, Tenant shall be in default
under this Paragraph. 5 and under the Lease (subject to the applicable
notices and grace periods provided in Section 25.02 of the Lease).
12
(j) The rights and obligations of Tenant and Landlord under Article
21 of the Lease shall be fully applicable to this Paragraph 5.
6. The following modifications are hereby made to the Lease to
account for the inclusion of the Lobby Premises (and in some cases, the Elevator
Premises and the Duct Premises) in the Premises:
(a) The following is hereby inserted at the end of Section 1.05(b):
"The Fixed Rent for the Lobby Premises shall be payable at the
following annual rates:
(1) The product obtained by multiplying $100.00 by the
square foot rentable area of the Lobby Premises, during the
period beginning on the date the term of this lease commences
with respect to the Lobby Premises and ending on the day
preceding the fifth anniversary of the Commencement Date:
(2) The product obtained by multiplying $116.67 by the
square foot rentable area of the Lobby Premises, during the
period beginning on the fifth anniversary of the Commencement
Date and ending on the day preceding the tenth anniversary of the
Commencement Date;
(3) The product obtained by multiplying $125.00 by the
square foot rentable area of the Lobby Premises, during the
period beginning on the tenth anniversary of the Commencement
Date and ending on the day preceding the 15th anniversary of the
Commencement Date; and
(4) The product obtained by multiplying $138.89 by the
square foot rentable area of the Lobby Premises, during the
period beginning on the 15th anniversary of the Commencement Date
and ending on the
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expiration date of the original term of this lease."
(b) The words "and the Lobby Premises" are hereby inserted after the
words "Office Premises" in the first, sixth, seventh, ninth and fifteenth
lines of Section 1.05(c).
(c) The following is hereby inserted after Section 1.11:
"1.12. If any portion of any installment of the "Retail Rent" or
"Other Rent" payable by Landlord pursuant to Section 3.05 of the
Ground Lease is attributable to the leasing of the Lobby Premises to
Tenant, then Tenant shall pay to Landlord an amount equal to such
portion of each installment. The first such amount shall be paid by
Tenant within 10 days after Landlord notifies Tenant that such amount
is payable, and subsequent payments under this Section 1.12 shall be
made as specified in such notice, and any subsequent such notices,
provided that Tenant shall not be required to make such payments more
frequently than the frequency with which Retail Rent or Other Rent is
payable by Landlord under the Ground Lease."
(d) The following is hereby inserted at the end of Section 2.01:
"Tenant shall use and occupy the Lobby Premises solely as a
message center (i.e., for deliveries to Tenant of press releases, news
items and other messages and documents to be used in connection with
Tenant's business), a reading room (i.e., a room open to the general
public for the reading of Tenant's publications; and Tenant may,
incidental to such use, make occasional sales of back issues of such
publications) and a security post (i.e., a location at which security
guards will be stationed for purposes of screening and escorting
visitors to the Premises); provided, however, that if Tenant desires
to use the Lobby Premises for any different purpose, Landlord will not
unreasonably withhold or delay its consent
14
to such different use as long as (i) such different use is not
prohibited by (A) Section 2.03 or 2.04 of this Lease, (B) the Ground
Lease, (C) any instruments affecting title to the Building, (D) any
other lease in the Project, or (E) any other agreement to which
Landlord is a party or by which it is bound; (ii) such different use
is in keeping with the character, reputation and appearance of the
lobby of a first-class office building; and (iii) in Landlord's
reasonable judgment, such different use is consistent with Landlord's
overall plans for the types and varieties of uses in the lobby of the
Building and the rest of the Project. If Landlord withholds such
consent it will specify its reasons therefor. Tenant shall use and
occupy the Elevator Premises solely for the installation, maintenance
and operation of equipment used for the operation of a shuttle
elevator between the 16th and 17th floors of the Building. Tenant
shall use and occupy the Duct Premises solely for the installation,
maintenance and operation of ducts between the Lobby Premises and the
Office Premises.
(e) The words "or the Lobby Premises" are hereby inserted after the
words "Office Premises" in the sixth line of Section 2.02 and in the 45th
line of Section 5.03. Also in Section 2.02, the word "Certificate", which
appears in the twelfth and thirteenth lines there of, is hereby changed to
"Certificate(s)".
(f) The following is hereby inserted after Section 2.04:
"2.05. Tenant, at its own cost and expense, shall provide an
identification sign at and for the Lobby Premises, in accordance with
the standards set forth in design criteria contained in Attachment 1
to Exhibit F. Tenant, at its own cost and expense, shall maintain any
such sign or other installation in good condition and repair and, if
required by Landlord, shall keep such sign illuminated as and during
such hours as required by Landlord. Tenant shall not alter any such
sign without Land-
15
lord's prior approval, which will not be unreasonably withheld or
delayed, and other than such permitted sign, Tenant shall not, without
Landlord's prior approval, which will not be unreasonably withheld or
delayed, place or install or suffer to be placed or installed or
maintain any sign upon or outside the Lobby Premises or inside the
Lobby Premises. Tenant shall not place or install or suffer to be
placed or installed or maintained within the Lobby Premises any
temporary or non-professionally made sign of any kind or nature, nor
shall Tenant place or maintain on the Lobby Premises, including,
without limitation, on the glass of any window or door, any sign
decoration, lettering, advertising matter, shade or blind (other than
as expressly permitted pursuant to such design criteria) or other
thing of any kind, including, without limitation, credit card stickers
or handwritten signs. Landlord shall have the right, with or without
notice to Tenant, to remove any signs installed by Tenant yin
violation of this Section 2.05 and to charge Tenant for the cost of
such removal and any repairs necessitated thereby, without liability
to Tenant for such removal. At the expiration of the term of this
lease, Tenant, at its own cost and expense, shall remove or cause to
be removed all such signs or other installations and repair any damage
to the Lobby Premises caused by such removal."
(g) The parenthetical phrase, "(either the uses described in Section
2.01 or a different use consented to by Landlord pursuant to the proviso at
the end of the third sentence of Section 2.01)" is hereby inserted after
the words "Section 2.01" in the sixth line of subsection 8.09(b).
(h) The phrase "or with respect to any proposed subletting of all or
part of the Lobby Premises (whether alone or together with any other
portion of the Prem-
16
ises)" is hereby inserted at the end of the ninth line of Section 8.12.
(i) The phrase, "or Tenant's use of the Lobby Premises other than as
a message center, reading room and security post, or Tenant's use of the
Elevator Premises other than for elevator equipment, or Tenant's use of the
Duct Premises other than for ducts," is hereby inserted at the end of
clause (b)(i) of Section 9.01.
(j) The phrase "(including without limitation special rules and
regulations applicable to space on one or both of the lobby levels of the
Building)" is hereby inserted after the word "Tenant" in the sixth line of
Section 11.01.
(k) The following words are hereby inserted at the end of the first
sentence of Section 15.01: ", and to distribute conditioned air throughout
all the Lobby Premises, to the extent set forth in the Lobby Mechanical
Specifications set forth in Exhibit G-1 attached hereto and made a part
hereof." Exhibit E annexed hereto is hereby made Exhibit G-1 to the Lease.
(l) The following provision is hereby inserted at the end of the
first sentence of Section 16.01:
"and shall supply conditioned air during Business Hours of Business
Days to the Lobby Premises, as may be required to operate, to the
extent permitted by law, any heating, ventilating and air-conditioning
systems which are installed/in the Lobby Premises, in accordance with
the lobby mechanical specifications set forth in Exhibit G-1 hereto."
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(m) The words "or conditioned air and/or chilled water for the Lobby
Premises, in either case" are hereby inserted after the word "Portion" in
the fifty-first line of Section 16.01. In addition, the following is hereby
inserted at the end of Section 16.01:
"(including, in the case of the Lobby Premises, the costs
reasonably incurred by Landlord in adjusting, modifying, supplementing
or otherwise adapting the air conditioning equipment serving the Lobby
Premises to the extent necessitate by Tenant's need for conditioned
air at times other than Business Hours of Business Days). Subject to
the provisions of Section 15.02, Tenant may, at its expense, use its
own supplemental air conditioning units in the Lobby Premises After
Hours (as hereinafter defined)."
(n) The following provision is hereby inserted after Section 16.07:
"16.08. In the event Tenant shall keep the Lobby Premises open
for use during hours, days or nights other than Business Hours of
Business Days ("After Hours"), Tenant shall pay to Landlord, as
Additional Rent, on demand, Landlord's charges for all incremental
costs and expenses incurred by Landlord in connection with Tenant's
occupancy of the Lobby Premises After Hours. If any other tenants in
the +32' 0" lobby level of the Building shall occupy their premises
After Hours at the same time as Tenant, only that equitably pro-rated
portion of Landlord's charges therefor shall be allocated to Tenant."
(o) The words "and the Lobby Premises" are hereby inserted after the
words "Office Premises" in the second line of Section 17.01. The words "or
Lobby Premises" are hereby inserted after the words "Office Premises" in
the seventh and thirteenth lines of Section 17.01.
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(p) The words "or the Lobby Premises" are hereby inserted after the
words "Office Premises" in the sixteenth line of Section 18.01 and the
twenty-sixth line of Section 22.02. The words "and the Lobby Premises" are
hereby inserted after the words "Office Premises" in the seventh line of
Section 22.02.
(q) The following provision is hereby inserted after subparagraph (d)
of Section 25.02:
"or (e) if the Lobby Premises are abandoned for a period of more
than 15 days and Tenant does not resume occupancy thereof for one or
more of the uses permitted hereunder within 15 days after notice from
Landlord,"
(r) Notwithstanding anything to the contrary provided herein of in
the Lease, Landlord shall have the right to terminate the Lease (as amended
hereby) insofar as it relates to the Lobby Premises, if the Lobby Premises
are vacated or deserted for a period of more than 15 days and Tenant does
not resume occupancy thereof for one or more of the uses permitted
hereunder within 15 days after notice from Landlord. After such a
termination (which shall be by a second notice to Tenant given after such
second 15-day period), the Lobby Premises shall no longer be part of the
Premises, but the Lease shall otherwise continue in full force and effect,
and Tenant shall remain liable for its obligations under the Lease relating
to the Lobby Premises which accrued prior to such termination.
19
(s) The following provision is hereby inserted after paragraph A6 of
Exhibit F:
"7. All Alterations of the Lobby Premises shall conform to the
design criteria set forth in Attachment 1 to this Exhibit F."
(t) Attachment 1 to this Amendment is hereby made Attachment 1 to
Exhibit F to the Lease. To the extent that the Tenant's Work referred to in
the Supplemental Agreement relates to the Lobby Premises, such Tenant's
Work shall also conform to the design criteria set forth in Attachment 1
hereto.
(u) Tenant acknowledges that Landlord is in the process of
establishing general methods and procedures for determining and billing
Additional Charges on account of operating expenses allocable to premises
on the +12' 6" and +-32' 0" lobby levels of the Building (including the
Lobby Premises). Landlord will advise Tenant of such methods and procedures
after the same have been established. To the extent that such methods and
procedures differ from the methods and procedures established pursuant to
this Agreement, such new methods and procedures shall, at Landlord's
option, be substituted for the methods and procedures established herein,
and Tenant shall, upon. request, enter into a further amendment to the
Lease, confirming such substitution; provided, however, that "Tenant shall
not be required to agree to any methods or procedures that either (A) are
not generally applica-
20
ble to the majority of other rentable space on such lobby levels or (B)
result in an increase in any of Tenant's monetary obligations under the
Lease.
7. Section 32.01 of the Lease is hereby amended by changing "245 Park
Avenue" to "000 Xxxx Xxxxxx" and "10167" to "10017" wherever such street address
and zip code appear in such Section.
8. References to the "Lease" in the Supplemental Agreement and to
the "BPC Lease" in the Takeover Agreement shall be deemed to refer to the Lease
as amended hereby.
9. The Lease, as amended by this Agreement, (a) is hereby ratified
and confirmed, and (b) shall remain in full force and. effect in accordance with
the terms, covenants and provisions thereof.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Agreement as of the day and year first above written.
LANDLORD:
OLYMPIA & YORK BATTERY PARK
COMPANY
By O&Y (U.S.) DEVELOPMENT CORP.
Managing General Partner
By /s/ Xxx Xxxxxx
----------------------------------
TENANT:
DOW XXXXX & COMPANY, INC.
By /s/ [ILLEGIBLE]
----------------------------------
VICE PRESIDENT
21
Exhibit A
Elevator Premises (as crosshatched)
Drawings Prepared by Xxxxxxx Associates:
A-29 18th Floor Plan Revised 6/17/85
EXHIBIT B
Duct Premises (as crosshatched),
a. Kitchen supply duct (Floors 2 to 8 and 15 to 17)
b. General exhaust duct (Xxxxxxx xxxxx, 0xx Xxxxx & 0xx Xxxxx)
c. Kitchen exhaust duct #2 (Floors 18 to 40 & Penthouse)
d. Hydrogen exhaust duct (Floors 18 to 40 & Penthouse)
Drawings Prepared by Xxxxxxx Associates:
A-7 Parking & Service Plan (Center) Revised 6/17/85
X-00 Xxxxxx Xxxxx (Xxxxxx) Revised 6/17/85
A-16 3rd Floor Plan (Center) Revised 6/17/85
A-18 4th Floor Plan (Center) Revised 6/17/85
A-20 5th, 6th &7th Floor Plan (Center) Revised 6/17/85
A-21A 8th Floor Plan (Center) Revised 6/17/85
A-29 18th Floor Plan Revised 6/17/85
A-30 19th, 20th & 21st Floor Plan Revised 6/17/85
A-31 22nd, 23rd, 24th & 25th Floor Plan Revised 6/17/85
A-32 26th Floor Plan Revised 6/17/85
X-00 00xx & 00xx Xxxxx Xxxx Revised 6/17/85
A-34 29th Floor Plan Revised 6/17/85
A-35 30th Floor Plan Revised 6/17/85
A-36 31st to 37th Floors Incl. Plan Revised 6/17/85
X-00 00xx & 00xx Xxxxx Xxxx Revised 6/17/85
A-38 40th Floor Plan Revised 6/17/85
A-39 Mechanical Penthouse & Roof Plan Revised 6/17/85
First Mezzanine Plan
X-00 Xxxxxxx & Xxxxxxx Xxxxx Xxxx Plan Revised 6/17/85
A-43 First Floor Core Plan Revised 6/17/85
A-44 2nd Floor Core Plan Revised 6/17/85
A-45A 3rd to 8th Floor Core Plan Revised 6/17/85
A-48 15th Floor Core Plan Revised 6/17/85
X-00X 00xx & 00xx Xxxxx Xxxx Xxxx Revised 6/17/85
A-49B 18th Floor Core Plan Revised 6/17/85
A-49C 19th Floor Core Plan Revised 6/17/85
A-49D 20th to 25th Floor Core Plan Revised 6/17/85
A-50 26th Floor Core Plan Revised 6/17/85
X-00 00xx & 00xx Xxxxx Xxxx Xxxx Revised 6/17/85
A-52 29th Floor Core Plan Revised 6/17/85
A-53 30th Floor Core Plan Revised 6/17/85
A-54 31st to 37th Floor Core Plan Revised 6/17/85
A-55 38th Floor Core Plan Revised 6/17/85
A-56 39th Floor Core Plan Revised 6/17/85
A-57 40th Floor Core Plan Revised 6/17/85
A-58 Mechanical Penthouse Levels Revised 6/17/85
Core Plans
EXHIBIT C
Dow Xxxxx Message Center
Drawings Prepared by Xxxxxx Xxxxxx Xxxxxxx:
A-175 Message Center Lobby Revised 7/17/85
A-179 Finish Plan, Reflected Ceiling Plan Revised 7/17/85
Power Plan and Furniture Plan
EXHIBIT D
Lobby Premises: Halon Duct (as crosshatched)
Drawings Prepared by Xxxxxxx & Xxxx Engineers:
XX-00 Xxxxxx Xxxxx Xxxxxx Revised 6/23/85
Drawings Prepared by Xxxxxxx Associates:
X-00 Xxxxxx Xxxxx Xxxxxx Revised 6/17/85
EXHIBIT E TO FIRST AMENDMENT OF LEASE
(TO BE EXHIBIT G-1 TO LEASE)
Lobby Mechanical Specifications
I. PURPOSES
The purpose of this Exhibit: G-1 is to set forth mechanical design criteria
for Landlord's Work and Tenant's Work. This Exhibit G-1 should be read in
conjunction with all other Exhibits to the Lease. The provisions of this Exhibit
G-1 shall be supplemental to, and shall be an integral part of, the Lease.
Capitalized terms used in thus Exhibit G-1 are used in accordance with their
definitions under the Lease, the Exhibits and the Supplemental Agreement, unless
otherwise defined in this Exhibit G-1. All materials and methods of construction
set forth in this Exhibit G-1 or elsewhere in the Lease indicate minimum
acceptable levels of quality and performance. Alternate or additional materials
and methods are subject to the prior written approval of Landlord.
II. HEATING, VENTILATING AND AIR CONDITIONING
A. Air Conditioning
1. Tenant shall extend the base building air-conditioning systems
to serve Tenant's Premises. (See Detail at page G-1-6)
a. Fan coil unit enclosures furnished by Tenant shall
maintain adequate air openings to maintain unit performance.
Enclosures shall be easily removable to
G-1-1
allow quick, easy and full access to each unit. All enclosure designs
must be submitted to and approved by Landlord.
b. Additional fan coil units or relocation of fan coil units
must be approved by Landlord. Once approved, all such additional fan
coil units shall be maintained by Tenant, at its sole cost and
expense.
c. The supply air system shall be extended by Tenant to
variable air volume zone control boxes.
(i) Variable air volume zone control boxes shall be
"Pinch down Type" as manufactured by Kruger, Xxxxxx & Xxxxxx,
Xxxxx or Tempmaster; "Series-Flow Fan Power Induction Type" as
manufactured by Kruger, Xxxxxx & Xxxxxx, or Tempmaster; or
"Parallel-Flow Fan Powered Variable Air Volume Boxes", as
manufactured by Kruger, Xxxxxx & Xxxxxx or Tempmaster, as per
base building specifications, all at Tenant's expense.
(ii) Tenants supply air duct system shall be designed so
as not to exceed available system static pressure nor inhibit
the system smoke control operations.
G-1-2
(iii) Variable air volume boxes shall be controlled to a
full open position in a fire emergency allowing a minimum of six
(6) air changes per hour direct to Tenant's Premises.
(iv) Variable air volume boxes shall be fully
accessible.
(v) The supply and return air duct systems are utilized
for smoke control in a fire emergency. Fire dampers shall not be
installed in any main ducts unless specifically approved by
Landlord.
d. The return air system shall be extended by Tenant.
(i) Opposed blade volume dampers shall be provided at
all return air duct connections.
(ii) Return air quantities shall be a minimum of 90% of
supply air quantities but in no case less than six (6) air
changes per hour of usable area as required for smoke exhaust.
(iii) Generally, return air shall be through hung ceiling
plenums. Within special areas, a ducted return system may be
required as determined by Landlord.
G-1-3
(iv) Only clean air shall be returned. Contaminated air
(odors, fumes, dust, moisture, etc.) shall be directly exhausted
to the outdoors.
(v) The return air system shall be designed so as not
to exceed the available system static pressure nor inhibit the
system smoke control operation.
(vi) The supply and return air duct systems are utilized
for smoke control in a fire emergency. Fire dampers shall not be
installed in any main ducts unless specifically approved by
Landlord.
(vii) Tenant shall provide, or cause Tenant Contractors
to provide, return air openings where indicated on the Building
Plans to ensure proper operation.
e. Tenant shall evaluate the need for internal shading devices
as required to control solar radiation effects on occupant comfort,
Tenant equipment and furnishings, etc. Internal shading design shall
be submitted to Landlord for aesthetic compatibility with the Project.
Internal shading devices shall be installed by Tenant, at Tenant's
sole expense.
G-1-4
f. Tenant shall rebalance the air system at the completion of
Tenant's Work and provide Landlord with a balancing report.
G-1-5
[GRAPHIC OF AIR CONDITIONING APPEARS HERE]
G-1-6
B. Supplementary Ventilation Systems
1. Tenant designs for connection to exterior louvers shall be
reviewed and approved by Landlord. (See Detail at page G-1-11).
a. Louver plenums shall be provided with access doors and
shall be drained.
b. Louvers shall be provided with wire mesh screens.
c. Unused portions of louvers shall be properly blanked-off
with insulated panels.
d. All intake and discharge duct connections to plenums shall
be provided with automatic louver dampers to dose when system is
shut-down. Automatic louver dampers shall be opposed blade design, not
to exceed 6" width, low leakage type (2%). Damper motors shall not be
mounted in air stream.
e. Discharge exhaust shall be a minimum of 15'-0" from
Building fresh air intake louvers.
2. If required in accordance with Tenant's use of the Premises as
permitted under Article 2 of the Lease, Tenant shall provide kitchen ventilation
in accordance with governing agencies.
G-1-7
a. The kitchen hood provided by Tenant shall be U.L. approved.
Fire protection will be in accordance with NFPA 96 1976, New York City
requirements, the Project "Fire Protection and Life Safety Plan" and
Landlord's insurance carrier requirements.
b. All kitchen exhaust hoods above food preparation areas
shall be protected by a CO\\2\\ fire extinguishing system and damper
or an approved equivalent system.
c. All kitchen exhaust hoods shall be of the grease extraction
type, with provisions for direct make-up air not less than 70%.
d. Tenant shall provide make-up air systems connected to
available exterior intake louvers equal to a minimum of 80% of the
total kitchen exhaust. Make-up air shall be proportionally direct
connected to the exhaust hood and adjacent to the hood.
e. Kitchen/restaurant area ventilation shall be designed to
maintain a minimum .1 inch negative air pressure relationship to the
public spaces and other tenant areas to prevent migration of odors to
other spaces.
G-1-8
f. The kitchen hood exhaust fan shall be a high velocity
centrifugal exhauster with continuous water curtain air wash at the
fan inlet (e.g., "Roto-clone").
g. Kitchen hood exhaust ductwork shall be welded 10 ga. black
iron with 2" calcium silicated insulation installed in accordance with
base building specifications. Ductwork shall be pitched down towards
exhaust hood. Clean-out access doors shall be provided every 10'-0"
and every change in direction. Ductwork shall be arranged so as not to
create grease traps.
h. Automatic fuel shut-off shall be provided for all cooking
equipment.
i. All cooking surfaces shall be equipped with an automatic
dry chemical, automatic sprinkler or water spray systems approved for
use in protecting cooking equipment.
j. Kitchen cooking equipment and ventilation systems shall be
arranged to shut-down in a fire emergency as signaled by the Building
fire alarm systems.
3. Supplemental ventilation air systems shall be properly tempered
(filtered, heated, cooled, etc.) when required, to maintain prescribed indoor
conditions.
G-1-9
4. Supplemental ventilation systems shall be arranged to shut-down
in a fire emergency as signaled by the Building fire alarm system.
G-1-10
[GRAPHIC OF LOUVER COMMECTION APPEARS HERE]
G-1-11
C. Supplemental Cooling
1. If approved by Landlord, Tenant shall extend the chilled water
system for Tenant's supplemental cooling.
2. All chilled water connections shall be metered and connected to
the Building's and/or the Project's automated meter monitoring system. Tenant,
at Tenant's expense, shall install, and thereafter maintain, meters specified by
Landlord. (See Detail at page G-1-13).
3. Tenant, in accordance with Landlord's design and directions and
at Landlord's cost and expense, shall exterid full size capped outlet to
adjacent tenant premises prior to construction of Tenant's systems.
G-1-12
[GRAPHIC OF WATER FLOW APPEARS HERE]
G-1-13
D. Supplemental Heating
1. If approved by Landlord, Tenant shall extend the steam system for
Tenant's supplemental heating.
2. All steam connections shall be metered and connected to the
automated meter monitoring system. Tenant, at Tenant's expense, shall install,
and thereafter maintain, meters specified by Landlord. (See Detail at page
G-1-15).
3. All steam condensate shall be returned to the Building condensate
collection system by gravity, if possible.
4. Tenant, in accordance with Landlord's design and directions and
at Landlord's cost and expense, shall extend full size capped outlet to adjacent
tenant premises prior to construction of Tenant's systems.
G-1-14
[GRAPHIC OF STEAM FLOW APPEARS HERE]
G-1-15
E. Temperature Control
1. Tenant shall provide automatic temperature controls, alarms and
life safety controls as required by Landlord.
2. All controls shall be compatible with the base building system
and shall be procured from the base building control manufacturer.
3. Tenant shall connect to the automated Building management system
as required by Landlord.
F. Ductwork
1. All ductwork shall be fabricated from galvanized sheet metal,
stainless steel or black steel in accordance with the standards of the American
Society for Heating, Refrigerating and Air Conditioning Engineers ("ASHRAE") and
the Sheet Metal and Air Conditioning Contractors National Association
("SMACNA").
2. Ductwork unit shall be constructed in accordance with the SMACNA
Standards.
3. Branches from the main low velocity trunk ductwork shall be
furnished with volume dampers or similar balancing devices in general accordance
with the standards of the Associated Air Balancing Council. All dampers shall be
accessible.
G-1-16
4. Ductwork for dishwasher exhaust, if applicable, shall be
fabricated rectangular low pressure minimum 20 gauge stainless steel ductwork.
Ductwork shall be properly pitched to drain to the hood connection: joints shall
be soldered to prevent leaking.
5. Range exhaust, if applicable, shall be fabricated in accordance
with governing agencies, but shall be at least 10 gauge or heavier black steel,
with all. joints welded. Access doors in these systems shall be in the vertical
face of the horizontal run every 10'-0" and at the bottom of the vertical riser.
6. Dishwasher exhaust ducts, if applicable, shall be insulated with
1-inch thick fiberglass duct insulation having a 3/4 pound density.
7. Tenant shall indicate the location of all fire dampers on
Tenant's Plans. Provisions shall be made for sufficient access to all fire
dampers.
G. Noise Criteria
1. Mechanical or allied equipment to be installed by Tenant must
conform to the following noise and vibration limits:
a. It must not produce sounds which emanate into any adjacent
occupied areas (not occupied by or leased by Tenant) exceeding dBA 45.
G-1-17
b. If floor mounted, it must be on an adequate resilient
mounting system to provide at least 95% vibration isolation of: all
frequencies generated by machinery or equipment.
c. If mounted or suspended from the roof or other structure,
it must provide at least 95% vibration isolation of all frequencies
generated by the equipment, and the mounting system must be such that
no resonances can occur between the equipment and the structure.
H. Calculation Criteria
1. All calculations shall be in accordance with the latest edition
of the ASHRAE Fundamentals Guide and Data Book, all applicable codes and
requirements, and good engineering practices. All calculations shall be
submitted for Landlord's engineer's approval and shall be certified by a
registered professional engineer.
2. Heating load: The spaces shall be calculated to maintain the
minimum space temperatures indicated with the equipment sized for day heating
loads.
3. Cooling Load: Cooling load calculations shall take into account
all interior heat producing items.
G-1-18
4. Tenant shall submit to Landlord calculations for the following:
a. Peak cooling load.
b. Peak heating load.
c. Instantaneous cooling load for each space served by an
individual terminal unit if more than one (1) is required.
d. Circulated CFM required for peak cooling load.
e. Instantaneous heating load for each heated space.
f. If applicable, toilet room exhaust air calculation,
including static pressure.
g. Static pressure requirements on Tenant-provided air
conditioning units and extension of base building and return air
systems.
h. If applicable, exhaust quantities and static pressure for
kitchen exhaust.
I. Fire Protection and Smoke Control
1. Tenant shall design Fire Protection and Smoke Control Systems
consistent with the base building design.
G-1-19
2. Tenant shall provide for any interfacing of all control work
and/or alarms with Landlord's fire command station and building management
system (whichever one is applicable).
III. ELECTRICAL
A. Electricity
1. Tenant shall extend from electrical facilities provided by
Landlord and shall furnish and install a disconnect switch, meter pan or current
transformer cabinet and meter pan, wire and conduit raceway as required.
Conductors will be installed through the raceway provided by Landlord into the
Premises. Tenant will extend conduit and wire from the demising wall to Tenant's
electrical distribution equipment. (See Exhibit `A' at page G-1-23)
2. Conduit is to be used for all electrical work except for
connections to lighting fixtures in accessible ceiling and motor connections
where flexible armored cable is permitted. Conduit shall not be hung from other
conduit or equipment: conduit shall be secure to structure.
3. Signal wire shall be in conduit.
4. Unused electrical/telephone floor holes should be properly
filled with concrete and any abandoned wires in the raceway or ceiling shall be
removed.
G-1-20
5. Electrical panels, disconnects and meters shall be properly
sized and identified immediately upon completion of work.
6. Breaker and panel directories shall be kept up-to-date AT ALL
TIMES. On completion, Tenant shall provide reproducible copies to Landlord's
representative.
7. Light switches are recommended for all areas.
8. No bare wire is acceptable in ceiling spaces used as return air
plenums. Wires shall be carried in EMT or flexible metallic jacket. Teflon or
metal jacketed communication cables are also acceptable. Where teflon or
metal-jacketed communication cables are used, it is essential that they be
attached to the suspension wires supporting the t-bars, rather than just laying
them on the t-bars above the acoustical tiles.
9. It is the responsibility of the electrical Subcontractor tic
seal any openings through walls or floors to safeguard the fire rating of
electrical rooms or other spaces.
10. Tenant is responsible to have all electrical work inspected and
approved, at Tenant's sole cost and expense, by the authorities having
jurisdiction
11. If computers are connected, check if special ground and any
special fire protection are required. Make sure proper interfacing is used to
avoid false alarms.
G-1-21
12. Final connections and modifications to the fire alarm and
building management system must be done by Landlord to preserve system
integrity. This includes security door locks interface to fire alarm system.
13. Due to the complexity of the life safety and Building management
systems, subcontractors must make arrangements with Landlord for any Tenant Work
to be performed which will affect these systems. Prices will be provided on
request. For other changes - such as special speakers, installation in drywall
ceiling, pull stations, security system interface to fire alarm, or special
Tenant. fire alarm system interface, prices will be provided on request.
B. Telephone
1. Tenant shall procure telephone service to and within the
Premises directly from the telephone public utility company furnishing the
service. All telephone installation and service charges shall be paid by Tenant
directly to the telephone public utility company.
G-1-22
[GRAPHIC OF ELECTRICITY DISTRIBUTION APPEARS HERE]
IV. PLUMBING AND FIRE PROTECTION
A. Sanitary Soil, Waste and Vent
1. Tenant shall extend the base building sanitary and vent piping to
serve Tenant's Premises.
a. If applicable, kitchen waste shall be provided with grease
interceptors before connecting into Landlord sanitary system:
through-the-floor grease interceptors will not be permitted unless
approved by Landlord for type and location.
B. Domestic Cold Water
1. Tenant shall extend the base building domestic cold water system
to serve Tenant's Premises.
a. Tenant shall install in its Premises a water meter
specified by Landlord, located for easy access and reacting, at
Tenant's sole cost and expense.
b. Water meter shall be installed as indicated on detail at
page G-1-26.
c. Tenant shall verify size and pressure: if additional water
pressure or a larger capacity is required, Tenant shall inform
Landlord before proceeding with any such work. If possible Landlord
will modify the system
G-1-24
and charge Tenant for the additional work in connection therewith.
G-1-25
[GRAPHIC OF WATER METER ASSEMBLY APPEARS HERE]
G-1-26
C. Gas System
1. Tenant shall arrange to obtain gas service directly from the
local utility company providing such service.
a. Tenant shall extend the gas service to serve Tenant's
Premises.
b. Gas piping routing to Tenant's Premises shall be approved
by Landlord before proceeding with the installation.
c. Gas meter connection to Landlord service pipe shall be as
per detail at page G-1-28.
2. Tenant shall allow the local utility company to inspect Tenant's
gas system prior to providing such service.
G-1-27
[GRAPHIC OF GAS METER CONNECTION APPEARS HERE]
G-1-28
D. Fire Standpipe System
1. Tenant must provide additional fire standpipe coverage to ensure
that proper fire standpipe coverage is obtained.
a. In the event that the location of Tenant's partitions, wall
fixtures, etc. are such that the fire standpipe coverage is
insufficient and the relocation or addition of fire hose valves is
necessary, any such alterations shall be performed by Landlord, at
Tenant's sole cost and expense.
2. Tenant must obtain permission from Landlord or Landlord's
representative before shutting off the fire standpipe system when fire hose
connections are added.
E. Sprinkler System
1. Tenant must ensure proper sprinkler coverage within its
Premises.
a. In the event that the design of Tenant's Premises is such that
the capacity of the sprinkler main must be increased, any such
alterations to the system will be performed by Landlord, at Tenant's
sole cost and expense.
G-1-29
2. Tenant must ensure proper coverage, approvals, warranties and
testing. Tenant must submit to Landlord, for approval, Tenant's sprinkler design
and calculations duly stamped and approved by the Underwriter's Engineer of
Record and N.Y.C. Building Department.
3. Tenant must retain water curtain at partitions separating retail
spaces from public spaces.
4. Tenant shall extend, if required by Landlord, sprinkler mains
terminating in its Premises to adjacent valve and cap the minimum sprinkler main
size shall be 2-1/2".
5. Sprinkler connection shall be installed as indicated on Detail
at page G-1-31.
6. Tenant must obtain permission from Landlord or Landlord's
representative before shunting off the fire standpipe system when any
alterations to the sprinkler system are made.
G-1-30
[GRAPHIC OF SPRINKLER RIG ASSEMBLY APPEARS HERE]
G-1-31
ATTACHMENT N0. 1
Tenant
Design
Criteria
Building A
W O R L D F I N A N C I A L C E N T E R
Table of Contents
Introduction to Design Criteria 1
Tenant Work 2
Tenant Submission Requirements 3
Definitions 6
Approved Materials for Interiors 7
General Lighting 8
Storefront Controls 9
Storefront Location Plan - Street Level 10
Storefront Location Plan - Bridge Level 11
Storefront Type W5 12
Storefront Type C 16
Storefront Type A 20
Exterior Glazing - Bridge Level - Type W8 22
Showcase Condition 26
Schematic Profiles 29
Signage Criteria 30
Issued April 9/th/, 1985
Revised April 15, 1985
INTRODUCTION TO DESIGN CRITERIA
This Tenant Design Criteria establishes basic guidelines for Tenants and their
designers as well as stating objectives and limitations of the design concept.
It constitutes part of the lease and should be read in conjunction with it.
The Design Criteria has been formulated to allow and encourage Tenants to make
the best use of the design and setting of the World Financial Center. The design
and construction of the Tenant's premises should express the individuality and
character of the Tenant and his business, with emphasis on the most important
element; the merchandise. Variety and creativity of store design are allowed by
the Design Criteria and will be encouraged by the Landlord.
Tenants are required; for the mutual benefit of all Tenants, to comply with the
Design Criteria. Should there be any differences in this Design Criteria from
details defined in the lease, the latter shall govern. Prior to commencing the
detail design, the Tenant and his consultants are required, to review the Design
Criteria, building code requirements and fire protection code requirements.
These will place certain restrictions on design and construction contemplated by
the Tenant. Review and approval of the Tenant's design will be made by the
Landlord. The Landlord will also make any interpretations required of this
criteria.
1
TENANT WORK.
Show window floors, display platforms, ceilings, entries, show window
backgrounds, doors, screens, ornamental work and all walls or other devices
between the Leased Premises and the public areas or building exterior shall be
considered Tenant Storefront work.
Any penetrations planned by the Tenant through the roof or floor of the Leased
Premises must be specifically drawn to the Landlord's attention with the
submission of preliminary drawings.
If fastening to or suspension from the underside of the floor or roof structure
is required by the Tenant, it must be planned in strict accordance with
structural and mechanical criteria. It must be approved and Installed by the
Landlord at the Tenant's expense.
No load shall be imposed upon any floor areas of the Leased Premises in excess
of the design live load of 100 pounds per square foot, uniformly distributed.
Glazing in the Tenant's premises not occurring in the Mandatory Design Area is
subject to the same controls as glazing within the Mandatory Design Area.
Tenant shall maintain interior temporary storefront treatments, installed by
Landlord, during construction.
Tenant shall install and maintain exterior temporary storefront treatments, as
specified by Landlord, during construction.
2
TENANT SUBMISSION REQUIREMENTS
Each Tenant is obliged to engage the service of a professional designer and/or
architect for his design. Each Tenant is also obliged to engage the service of
an engineer licensed in New York for Tenant mechanical, structural, and
electrical systems and utilities if required.
Preliminary Submissions
Tenants are required to submit preliminary drawings within thirty (30) days of
issue of Tenant Design package. Preliminary approval must be obtained before
submitting final detail working drawings.
The Tenant shall supply three (3) sets of Preliminary Design drawings. Each set
will consist of:
(a) Floor plan of premises. Scale -1/4" = 1' - 0".
(b) Lighting Plan. Scale - 1/4" = 1' - 0'".
(c) Storefront elevations. S c a l e - 1/4 = 1' - 0".
(d) Locations, sizes and details of all signing.
(e) Indications of any concentrated structural loads, mechanical,
electrical and lighting requirements.
(f) Indications of proposed ceiling and/or floor loads.
(g) Perspectives of proposed design of Tenant space.
When preliminary approval has been obtained, `the Tenant must submit final
working drawings consisting of four (4) sets of blueprints and one (1) set of
sepias. Drawings are to be of uniform size, preferably 24" x 36", but not
exceeding 30" x 48".
3
Final Submissions
The final submission will consist of:
(a) Floor plan(s) of premises. Scale - 1/4" = -0"
(b) Ceiling plan(s) indicating ceiling system, light
fixtures, HVAC diffusers, sprinklers. Scale . 1/4" =
1'- 0".
(c) Storefront and show window elevations and details.
Scale - 1/2" = 1' - 0".
(d) Interior elevations and details sufficient for
construction.
(e) Interior finish schedule.
(f) Complete drawings showing location and specifications
for electrical devices (light fixtures, outlets,
panels, etc.) to be installed by Tenant. Connected
electrical loads must be shown.
(g) Complete drawings and specifications for HVAC system,
plumbing, and any special mechanical equipment to be
installed by Tenant, and how and where connections will
be made to Base Building services.
(h) Storefront sign details conforming to the Landlord's
signage criteria.
(i) Locations, specifications and identifications of all
materials. These should be submitted in two (2) sets,
or included in panel form on the final working
drawings.
(j) A sample board of materials, color chips, and interior
finishes must be submitted. They must be firmly affixed
to illustration board and labeled. Where patterned
samples are submitted, the samples must be large enough
to indicate the pattern and range of color of the
material.
(k) Photographs, drawings or catalogue cuts of display
racks and fixtures must be submitted with the drawings.
(l) Drawings must indicate weight of heavy equipment such
as safes, refrigeration equipment, showcases, etc.
(m) All revisions to approved drawings and/or existing
premises must be individually approved by the Landlord
in writing.
4
Exhibit C; "Tenant Design Submission and Construction Procedure", should be
referred to for complete outlines of submission times and sequences;
The Tenant's designer and/or architect is responsible for obtaining all
necessary City and Building permit approvals from the City of New York. Proof of
application for Building permit must be shown before work can commence.
Approved plans must be on the site while construction is in progress.
Architects and/or designers must follow the "Fire Protection and Life Safety
Plan for the Battery Park City Commercial Center" (August 21, 1984) and all
subsequent revisions.
Drawings submitted for City permit approval must first have been approved by the
Landlord.
The Tenant Co-Ordinator will handle the Landlord approval process for all store
interior design, storefront designs, ceiling plans and signs proposed for
individual Tenant's premises, as well as answer quest ions and clarify problems
relating to the Tenant's planning.
All drawings and specifications relating to the Tenant's store must, in terms of
the lease, comply with this Tenant Criteria and must be submitted for Landlord
approval to:
Olympia & York
000 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Retail Tenant Co-Ordinator
5
DEFINITIONS
Lease Line: The line establishing the leaseable area.
Closure Line: The line establishing the location of the Closure
devices.
Mandatory Design Area: The Landlord has implemented the Mandatory Design Area
to ensure that Area storefront finishes are in keeping
with the overall theme of the project. The Landlord has
complete jurisdiction over finishes used in this area.
Flooring, demising wall finishes, ceilings, column
covers and finishes, lighting and sprinklers are
included in this jurisdiction. All finishes
contemplated in the Mandatory Design Area must first be
approved by the Landlord at the time of preliminary
submissions.
6
APPROVED MATERIALS FOR INTERIORS
The selection of materials in the World Financial Center is of extreme
importance in reinforcing the character of the project. The materials listed
below have been selected to encourage variety and creativity of storefront
design:
Glass: Clear vision
Ceramic frit
Mirror
Metals: Brass
Bronze
Copper
Stainless Steel
Chrome
Stone: Granite
Marble
Sandstone
Wood : Solid or wood veneers, natural finish
Floor Covering: Ceramic tile
Porcelain tile
Marble
Hardwood
Broad loom
Plastic Laminate: Solid colors only
Drywall: Paint finish
Ceilings: Drywall paint finish
Concealed spline only, no T bar ceilings
Architectural ceiling systems with quality finishes
or other special materials, as approved by Landlord. NO simulated materials such
as imitation wood, brick, stone or wood grain plastic laminate are acceptable.
Materials not meeting smoke and flame spread requirements are unacceptable.
7
GENERAL LIGHTING
A variety of lighting qualities to best suit the variable merchandising uses and
structural configurations existing throughout the project is essential. The
following conditions and criteria are set for all Tenants:
a. Tenants shall provide an appropriate level of incandescent illumination
within the Mandatory Design Area.
b. Tenants may use only Incandescent lighting in the first 10'-0" of the
store.
c. All fixtures are to be of high quality, conforming to all standards,
building and fire codes and meeting the Landlord's approval.
d. Within the Leased Premises, if base lamps (incandescent or fluorescent)
are used, the Tenant must shield these fixtures with a baffle designed
so as to shield the lamps from public areas at 5'-6' (eye level),
unless otherwise approved by the Landlord. The Landlord reserves the
right to adjust such baffles after installation is completed should
such exposed lighting conflict with the overall lighting theme of the
project.
e. All Illuminated signs or graphics and Incandescent lighting within the
Mandatory Design Area will be on separate time clocks connected to the
Tenant's distribution panel. Hours for operating this lighting and
signs shall be determined by the Landlord.
Electrode connections for neon tube-type lighting must be kept out of shoppers'
reach.
For merchandising uses requiring specific lighting to create the desired
atmosphere, approval of the design concept and fixtures must be obtained from
the Landlord.
8
STOREFRONT CONTROLS
1. The storefront entrance secured at the closure line is determined by
the Tenant's location within the building. Storefront types are
illustrated in the location plans and accompanying drawings in the
pages to follow.
2. Reference must be made to storefront location plans and accompanying
drawings to determine placement of lease and closure lines for each
storefront.
3. The Tenant is responsible for the continuation of the mall marble
flooring from the Tenant's lease line to the closure or glazing line in
areas free from the Tenant's work (show windows). The marble may be
purchased from the landlord.
4. The ceramic frit glass horizontal bands are fixed by the Landlord. No
storefront work or Tenant's sign shall appear on these bands.
5. Storefront glazing is clear vision glass.
6. If the Tenant desires opaque areas within his storefront, he may paint
out the clear vision glass from behind to match the corresponding
ceramic frit glass color two.
7. Painted out glass that is exposed to store interior must be protected
from scratching.
8. Within the Mandatory Design Area, Tenants may provide fixed showcase
units or portable showcase units fixed into position. Showcase units
are to be of an approved material.
9. Tenants' signs must appear within the Mandatory Design Area. Please
refer to signage criteria for various types of signs.
10. Storefronts must only be illuminated with incandescent lighting within
the Mandatory Design Area.
11. If the Tenant's space backs on to the exterior glazing, the tenant's
ceiling must be raised to the top of exterior' glarlng for a minimum of
3'-0" from the center of the exterior column.
12. If the above condition applies, and the store is less than 20'-0" deep,
the tenant's ceiling is fixed to the height of the exterior glazing
throughout the retail space, excluding the Mandatory Design Area.
13. The Landlord's painted metal storefronts are fixed and may not be
altered in any way by the Tenant.
9
[GRAPHIC XX XXXXXX XXXXX XXXXXXXXX]
00
[GRAPHIC OF BRIDGE XXXXX XXXXXXXXX]
00
[GRAPHIC OF STOREFRONT]
12
[GRAPHIC OF STOREFRONT]
13
[GRAPHIC OF STOREFRONT]
14
[GRAPHIC OF STOREFRONT]
15
[GRAPHIC OF EAST LOBBY STOREFRONT]
16
[GRAPHIC OF DOORWAY]
17
[GRAPHIC OF RECESSED ENTRY]
18
[GRAPHIC OF RECESSED ENTRY]
19
[GRAPHIC OF ARCADE STOREFRONT]
20
[GRAPHIC OF ARCADE STOREFRONT]
21
[GRAPHIC OF EXTERIOR GLAZING]
22
[GRAPHIC OF WINDOWS]
23
[GRAPHIC OF EXTERIOR GLAZING]
24
[GRAPHIC OF BLACKOUT WALL]
25
[GRAPHIC OF SHOWCASE]
26
[GRAPHIC OF SHOWCASE]
27
[GRAPHIC OF SHOWCASE]
28
[GRAPHIC OF SCHEMATIC PROFILES]
29
Signage Criteria
All signs and graphics on the storefront must conform to the Design Criteria.
The Tenant's sign design and specifications of application are to be submitted
with preliminary submissions and are subject to the Landlord's approval prior to
application.
No signage is allowed on the Landlord's two horizontal bands of ceramic frit
glass.
No signage is allowed on the Landlord's metal storefront.
Signage must be contained within the Mandatory Design Area.
The Tenant's sign may be one of the following:
(a) Metallic-finish letters (brass, bronze, copper) or
solid color letters (i.e. lacquered, vinyl coated) may
be applied to surface of glass. Maximum depth of
letters may not exceed 1 l2" .
(b) Painted, silkscreened, etched or applied in gold/silver
leaf signs may be applied to inner surface of glass.
(c) Exposed neon signs may be suspended behind glass.
(d) Artisan's plaque may be featured within storefront.
(e) Special signage approved by the Landlord.
Note: No box signs of any type will be approved. No charge card signs can be
affixed to the storefront.
No promotional signs of any type will be permitted. No names other than
the actual store name may appear on the storefront.
The Tenant shall provide access from within his premises for the servicing of
sign components.
All Ballast boxes, raceways, electrical transformers, and other paraphernalia
must be completely concealed. All illuminated signage will be on separate time
clocks connected to the Tenant's distribution panel. Hours of operating this
signage shall be determined by the Landlord.
30
[GRAPHIC OF SIGNAGE]
31
[GRAPHIC OF SIGNAGE]
32
Letter Agreements, dated
May 19, 1987 & December
1, 1988
WFC Tower A Company
c/o Olympia & York
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
(000) 000-0000
May 19, 1987
Xx. Xxx X. Xxxxx
Director of General Services
Dow Xxxxx & Company, Inc.
P. O. Xxx 000
Xxxxxxxxx, X.X. 00000
Re: Lease (the "Lease") between Olympia & York Battery Park Company
("Landlord") and Dow Xxxxx & Company, Inc. ("tenant"), dated October 2l,
1983.
Dear Xx. Xxxxx:
Article 19 of the Lease requires Landlord to make available to you, as
Tenant, 25 automobile parking spaces (at least five (5) of which to be located
in the garage of Building A) at the posted parking rates charged by Landlord or
the garage operator from time to time. You have previously requested that the
Lease be modified so that the number of spaces that Landlord is required to make
available to you (and for which you are required to pay the posted charges)
shall be reduced to ten (10) parking spaces.
This will confirm our agreement to reduce the total number of parking
spaces which Landlord shall be required to make available to you and for which
you are required to pay the posted charges pursuant to Article 19 from twenty
five (25) spaces to ten (10) spaces. All other provisions of Article 19,
including without limitation, the requirement that five (5) of the ten (10)
spaces be located in the garage in Building A and that no more than five (5) of
the ten (10) spaces need be specifically assigned or designated, shall remain
unmodified and in full force and effect.
Xx. Xxx X. Xxxxx -2- May 19, 1987
Kindly acknowledge your agreement to the foregoing by executing a copy of
this letter in the space provided below and returning the same to Xxxxxxx
Xxxxxxxxxx of our office at your earliest convenience.
Very truly yours,
WTC TOWER A COMPANY
By: O&Y (U.S.) Development Company, L.P.,
a general partner
By: O&Y (U.S.) Development General
Partner Corp., a general partner
By: /s/ Xxx Xxxxxx
-------------------------
Senior Vice President
Accepted and Agreed To:
Dow Xxxxx & Company, Inc.
By:_______________________
Name:
Its:
ASF:lt
cc: Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx
Xxxxxx X. Xxxxx, Esq. - Patterson, Belknap, Xxxx & Tyler
Xxxxx Xxxxxxx - Dow Xxxxx & Company, Inc.
Xxxxxxx Xxxxxxx
Olympia & York Companies (USA)
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
(000) 000-0000
As of December 1, 1988
VIA FEDERAL EXPRESS
Xx. Xxx X. Xxxxx
Director of General Services
Dow Xxxxx & Company, Inc.
Xxxxx 0 xx Xxxxx Xxxx
Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Re: Lease (the "Lease") between Olympia & York Battery Park
Company ("Landlord") and Dow Xxxxx & Company, Inc.,
("Tenant") dated October 21, 1983
Dear Xx. Xxxxx:
Article 19 of the Lease as amended by a letter agreement dated May 19,
1987, requires Landlord to make available to you, as Tenant, ten (10) automobile
parking spaces (at least five (5) of which to be located in the garage of
Building A) at the posted parking rates charged by Landlord or the garage
operator from time to time. You have requested pursuant to a letter dated
November 1, 1998 that the Lease be modified so that the number of non-reserved
parking spaces that Landlord is required to make available to you (and for which
you are required to pay the posted charges) shall be reduced by four (4),
leaving Tenant with five (5) reserved parking spaces and one (1) non-reserved
..parking space.
This will confirm our agreement to reduce the total number of parking
spaces which Landlord shall be required to make available to you and for which
you are required to pay the posted charges pursuant to Article 19 from ten (10)
spaces to six (6) spaces. All other provisions of Article 19, including without
limitation, the requirement that five (5) of the six (6) spaces be located in
the garage in Building A and that no more than five (5) of the six (6) spaces
need be specifically assigned or designated, shall remain unmodified and in full
force and effect.
Xx. Xxx X. Xxxxx
Page Two
As of December 1, 1988
Kindly acknowledge your agreement to the foregoing by executing a copy
of this letter in the space provided below and returning the same to Xxxxxx X.
Xxxxxxxxx of our office at your earliest convenience.
Very truly yours,
WTC TOWER A COMPANY
By: O&Y (U.S.) Development Company, L.P.,
a general partner
By: O&Y (U.S.) Development General
Partner Corp., a general partner
By: /s/ Xxx Xxxxxx
-----------------------------
Senior Vice President
Accepted and Agreed To:
Dow Xxxxx & Company, Inc.
By: /s/ Xxx X. Xxxxx
--------------------
Name: Xxx X. Xxxxx
Its: Director, General Services
cc: Xxxxxx Xxxxxx
Xxxxxx X. Xxxxx, Esq. - Patterson, Belknap, Xxxx & Tyler
Xxxxx Xxxxxxx - Dow Xxxxx & Company, Inc.
Second Amendment of
Lease - May 11, 1994
SECOND AMENDMENT OF LEASE
AGREEMENT dated May 11, 1994 between WFC TOWER A COMPANY, a New York
partnership (formerly known as Olympia & York Battery Park Company), having an
office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and DOW XXXXX
& COMPANY, INC., a Delaware corporation, having an office at Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant entered into a lease dated October 21,
1983 (the "Original Lease") whereby Landlord demised to Tenant, upon the terms,
covenants and conditions contained therein, certain premises in the building
currently known as One World Financial Center in the City, County and State of
New York; and
WHEREAS, Landlord and Tenant entered into a First Amendment of Lease
dated as of May 22, 1985 (the "First Amendment"; and the Original Lease, as so
amended, is herein referred to as the "Lease"); and
WHEREAS, Landlord and Tenant desire to further amend the Lease in the
respects and upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
1. All terms used in this Agreement which are defined in the Lease
shall have the respective meanings set forth in the
Lease, unless any such terms are defined otherwise in this Agreement.
2. Landlord and Tenant have agreed that the Expansion Space shall be
added to the Office Premises in stages, rather than as originally contemplated,
with the first portion of the Expansion Space to be added earlier than was
originally contemplated. Also, Landlord and Tenant have agreed upon the Fixed
Rent for the Expansion Space. Accordingly, to reflect the foregoing, and certain
related matters, Article 4 of the Lease (which is currently embodied in the
First Amendment) is hereby amended in its entirety to read as follows:
"ARTICLE 4
Expansion Space
4.01. Tenant shall lease the Expansion Space (as hereinafter defined),
and each of the respective portions of the Expansion Space shall be
added to and form a part of the Office Premises (and the Premises), for
the period beginning on the Expansion Commencement Date (as hereinafter
defined) for such portion and ending on the expiration of the term of
this lease; and, during such period, the terms "Premises" and "Office
Premises" as used in this lease shall (except as otherwise provided in
Section 4.03) include such portion of the Expansion Space. The
"Expansion Commencement Dates" shall be (a) July 1, 1994 for the
portion of the Expansion Space (the "First Expansion Space") shown by
diagonal hatching on the floor plan annexed hereto as Exhibit L (the
"Floor Plan"), which consists of approximately 7,507 rentable square
feet of space currently occupied by affiliates of Landlord, (b) March
1, 1996 for the portion of the Expansion Space (the "Second Expansion
Space") shown by cross-hatching on the Floor Plan, which consists of
approximately 19,775 rentable square feet of space currently occupied
by Battery Park City Authority ("BPCA"), and (c) September 22, 1996 for
the balance of the Expansion Space (the "Third Expansion Space"), which
consists of approximately 9,528 rentable square feet of space currently
occupied by Nippon Kangyo ("Nippon"). The
2
"Expansion Space" shall consist of the entire 18th floor of the
Building, exclusive of the Elevator Premises and the Duct Premises
(which shall continue to be part of the Premises, but shall not be
considered part of the Expansion Space).
4.02. The Fixed Rent for the Expansion Space shall be payable at the
following annual rates (in each case, subject to the provisions of
Section 1.05(c)):
(a) For the First Expansion Space, during the eleven month period (the
"Interim Expansion Period") beginning on July 1, 1994, the product
obtained by multiplying $30.00 by the square foot rentable area of
the First Expansion Space; and
(b) For (i) the First Expansion Space during the period beginning on
June 1, 1995 and ending on the expiration date of the original
term of this lease, (ii) the Second Expansion Space during the
period beginning on the Expansion Commencement Date therefor and
ending on the expiration date of the original term of this lease,
and (iii) the Third Expansion Space during the period beginning on
the Expansion Commencement Date therefor and ending on the
expiration date of the original term of this lease, the Fixed Rent
as determined pursuant to subsections 1.05(b) (iv) and 1.05(b) (v)
(in each case, taking into account the inclusion of such Expansion
Space in the Office Premises during the period in question).
4.03. The Base PILOT and the Base Operating Expenses for the Expansion
Space shall be the same as are provided in Article 3 for the rest of
the Office Premises; provided, however, that the First Expansion Space
shall be excluded from the Premises during the Interim Expansion Period
for the purposes of determining Tenant's Proportionate PILOT Share and
Tenant's Proportionate Operating Share.
4.04. Tenant shall take each Expansion Space "as is", unless such
Expansion Space has been damaged by fire or other casualty between the
date hereof and the Expansion Commencement Date therefor and such
Expansion Space has not been restored, in which event Landlord shall
provide a Building Standard Installation (as hereinafter defined) for
such Expansion Space prior to such Expansion Commencement Date. A
"Building Standard Installation" means an installation at least equal
to the standard finish work described in Exhibit C attached to this
lease.
3
4.05. The termination of this lease during the original term of this
lease shall also terminate and render void Tenant's right (but not
Tenant's obligation, to the extent the existence of such obligation
shall affect the measure of Landlord's damages) to lease the Expansion
Space, and nothing contained in this Article shall prevent Landlord
from exercising any right or option granted to or reserved by Landlord
in this lease to terminate this lease. None of Tenant's rights set
forth in the preceding Sections of this Article may be severed from
this lease or separately sold, assigned or transferred.
4.06. If Landlord shall be unable to give possession of any portion of
the Expansion Space on the Expansion Commencement Date for such
Expansion Space because of the holding over or retention of possession
of any tenant, undertenant or occupant of such portion of the Expansion
Space, then (a) Landlord agrees to diligently exercise all legal rights
and remedies to dispossess any such hold-over tenant, undertenant or
occupant (except that Landlord shall not be required to take legal
action to dispossess BPCA or Nippon if Landlord has received reasonable
assurance that BPCA or Nippon, as the case may be, will vacate the
Expansion Space occupied by it within four months after the Expansion
Commencement Date therefor, unless BPCA and/or Nippon fails to vacate
the Expansion Space occupied by it or them, as the case may be, within
such four month period, in which event Landlord shall take legal
action, as hereinabove provided), (b) Landlord shall not be subject to
any liability for failure to give possession of such portion of the
Expansion Space on such Expansion Commencement Date and (c) the
validity of this lease shall not be impaired under such circumstances
nor shall the same be construed in any way to extend the term of this
lease, but the Fixed Rent and the Additional Charges payable hereunder
for such portion of the Expansion Space shall be abated until Landlord
has tendered possession by giving notice to Tenant that such portion of
the Expansion Space is ready for Tenant's occupancy. The provisions of
this Section are intended to constitute "an express provision to the
contrary" within the meaning of Section 223-a of the New York Real
Property Law.
4.07. Unless this lease shall terminate, Landlord shall not enter into
any lease of any portion of the Expansion Space if the initial or any
renewal term of such lease is scheduled to expire after the Expansion
Commencement Date for such portion of the Expansion Space.
4
4.08. Intentionally deleted.
4.09. Tenant shall not connect any additional electrical equipment of
any type in the Expansion Space to the Building electrical distribution
system, other than lamps, typewriters and other small office machines
which consume comparable amounts of electricity, without Landlord's
prior written consent, which consent shall not be unreasonably withheld
or delayed so long as the amounts of electricity to be consumed do not
exceed the normal capacity of the Building system feeders, risers,
electrical conductors, electrical equipment and wiring. For purposes of
determining the Additional Charges payable pursuant to Section 15.01
with respect to the Expansion Space, although electric energy furnished
to the Second Expansion Space prior to the Expansion Commencement Date
therefor, and to the Third Expansion Space prior to the Expansion
Commencement Date therefor (and, in each case, at Landlord's option,
after each such Expansion Commencement Date) will each be measured by a
separate meter, a single meter may be used to measure the electric
energy furnished to operate the air handler unit servicing the entire
18th floor of the Building ("Air Handler Electric"), even before each
such Expansion Commencement Date, in which event such Additional
Charges payable by Tenant for Air Handler Electric shall be based upon
a percentage of the Air Handler Electric measured by such single meter,
which shall be the same percentage as the percentage of the rentable
square footage of the Expansion Space for which, during the period in
question, the Expansion Commencement Date shall have occurred.
4.10. Intentionally deleted."
3. Exhibit "L" attached to this Agreement is hereby made a part of the
Lease as Exhibit L thereto.
4. References to the Lease in the Supplemental Agreement and to the
"BPC Lease" in the Takeover Agreement shall be deemed to refer to the Lease as
amended hereby.
5. The Lease, as amended by this Agreement, (a) is hereby ratified and
confirmed, and (b) shall remain in full force
5
and effect in accordance with in accordance with the terms, covenants and
provisions thereof.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Agreement as of the day and year first above written.
LANDLORD:
WFC TOWER A COMPANY
By: O&Y (U.S.) DEVELOPMENT
COMPANY, L.P.,
General Partner
By: O&Y (U.S.) DEVELOPMENT
General Partner Corp.,
General Partner
By: /s/ [ILLEGIBLE]
-----------------------
Name:
Title:
TENANT:
DOW XXXXX & COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
6
EXHIBIT L
First and Second Expansion Spaces
[GRAPHIC OF 18TH FLOOR FLOORPLAN APPEARS HERE]
Third Amendment of
Lease December 1, 1995
THIRD AMENDMENT OF LEASE
Agreement, dated as of December 1, 1995, between WFC TOWER A COMPANY, a New
York partnership (formerly known as Olympia & York Battery Park Company), having
an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord") and DOW
XXXXX & COMPANY, INC., a Delaware corporation having an office at Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are parties to a Lease, dated October 21,
1983, as amended by First Amendment of Lease, dated as of May 22, 1985 (the
"First Amendment"), letter agreement, dated May 19, 1987, letter agreement,
dated as of December 1, 1988 and Second Amendment, (of Lease dated May 11, 1994
(collectively, the "Lease"), whereby Landlord leased to Tenant and Tenant hired
from Landlord certain premises (the "Premises") in the building located at One
World Financial Center, New York, New York (the "Building"); and
WHEREAS, Landlord and Tenant desire to amend the Lease to provide that
Landlord lease to Tenant and Tenant hire from Landlord certain additional space
on the +32'-0" lobby level of the Building.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Defined Terms. All capitalized terms used herein but not defined shall
have the meanings ascribed to them in the Lease.
2. Lease of Additional Space. Landlord hereby leases to Tenant and Tenant
hereby hires from Landlord, upon and subject to the terms, covenants, provisions
and conditions of this Agreement, the portion of the +32'-0" lobby level of the
Building, substantially as shown hatched on the floor plan attached hereto as
Exhibit A and made a part hereof (the "New Lobby Space"), for a term commencing
on the date of this Agreement (the "New Date") and ending at a 11:59 p.m. on May
31, 2005 (subject to Tenant's right to extend the term of the Lease in
accordance with the provisions of Article 5 of the Lease), or on such earlier
date upon which the term of the Lease shall expire or be cancelled or terminated
pursuant to any of the conditions or covenants of the Lease or pursuant to law.
The New Lobby Space shall be conclusively deemed to contain 2,311 rentable
square feet. Effective as of the New Lobby Space Commencement Date, all
references in the Lease to the "Lobby Premises" shall, except to the extent
other terms are provided in this Agreement with respect to the New Lobby Space,
be deemed to refer collectively to the Lobby Premises demised pursuant to the
First Amendment and the New Lobby Space.
3. Terms Applicable to New Lobby Space. The lease of the New Lobby Space by
Tenant shall be on all of the terms and conditions of the Lease, except that:
(a) the term of the lease of the New Lobby Space shall be as set forth
in Section 2 above;
(b) Landlord shall not be required to perform any work, to pay any
amount (except as set forth in Section 4 below), to install any fixtures or
equipment or to render any services to prepare the Building or the New Lobby
Space for Tenant's use or occupancy, and Tenant shall accept the New Lobby Space
in its "as is" condition on the New Lobby Space Commencement Date;
(c) Fixed Rent with respect to the New Lobby Space shall be payable (i)
from and after the New Lobby Space Commencement Date to and including September
30, 2000 at the annual rate of Ninety-Nine Thousand Nine Hundred Ninety-Six and
97/100 ($99,996.97) Dollars and (ii) from and after October 1, 2000 to and
including May 31, 2005 at the annual rate of One Hundred Eleven Thousand Five
Hundred Fifty-One and 97/100 ($111,551.97) Dollars; during each such period,
Fixed Rent shall be payable at the times and in the manner set forth in the
Lease, provided, however, that the provisions of Section 1.05(c) of the Lease
shall not apply to Fixed Rent required to be paid with respect to the New Lobby
Space;
(d) from and after the New Lobby Space Commencement Date to and
including the Expiration Date, Tenant shall pay to Landlord PILOT Payments with
respect to the New Lobby Space at the times and in the manner set forth in the
Lease, except that for purposes of the New Lobby Space only (i) the term "Base
PILOT Year" shall mean the PILOT Year ending June 30, 1995 and (ii) the term
"Tenant's Proportionate PILOT Share" shall mean 0.1581%;
(e) from and after the New Lobby Space Commencement Date to and
including the Expiration Date, Tenant shall pay to Landlord Operating Payments
with respect to the New Lobby Space at the times and in the manner set forth in
the Lease, except that for purposes of the New Lobby Space only (i) the term
"Base Operating Year" shall mean the 1996 calendar year, (ii) the term "Tenant's
Proportionate Operating Share" shall mean 0.1581% and (iii) the term "Base
Operating Expenses" shall mean the Operating Expenses for the Base Operating
Year.
(f) Tenant shall separately pay for electric energy supplied to the New
Lobby Space from and after the New Lobby Space Commencement Date in the amounts
and at the times set forth in Article 15 of the Lease;
(g) Tenant shall pay the monthly installment of Fixed Rent attributable
to the first calendar month of the term of the lease of the New Lobby Space (or,
if the New Lobby Space Commencement Date shall be other than the first day of a
calendar month, the Fixed Rent attributable to such partial calendar month)
simultaneously with the first regular monthly installment of Fixed Rent due
after the occurrence of the New Lobby Space Commencement Date;
(h) Tenant shall use and occupy the New Lobby Space solely for lobby and
reception purposes, for display of and training in the use of Tenant's products,
and for no other use or purpose; provided, however, that if Tenant desires to
use the New Lobby Space for any different purpose, Landlord will not
unreasonably withhold or delay its consent to such different use as long as (i)
such different use is not prohibited by (A) Section 2.03 or 2.04 of the Lease,
2
(B) the Ground Lease, (C) any instruments affecting title to the Building, (D)
any other lease in the Project, or (E) any other agreement to which Landlord is
a party or by which it is bound; (ii) such different use is in keeping with the
character, reputation and appearance of the lobby of a first-class office
building; and (iii) in Landlord's reasonable judgment, such different use is
consistent with Landlord's overall plans for the types and varieties of uses in
the lobby of the Building and the rest of the Project. If Landlord withholds
such consent, it will specify its reason(s) therefor;
(i) Tenant shall:
(i) occupy and use during the entire Lease term, the
entire New Lobby Space in accordance with the terms of the Lease, and conduct
Tenant's business therein in a manner consistent with the character, reputation
and appearance of a first-class office building;
(ii) keep the display windows, if any, and signs well
lighted during such hours and days and in the manner as Landlord shall from time
to time determine;
(iii) not operate its business under the Lease so as to
breach or violate any other lease entered into by Tenant, or violate; any
contract entered into by Tenant, or violate any judgment or decree imposed upon
Tenant;
(iv) redecorate the New Lobby Space and refinish, renew
and/or replace the fixtures, furnishings, decorations and equipment therein from
time to time during the Lease term, at Tenant's expense, as in the reasonable
judgment of Landlord may be necessary to preserve and maintain the attractive
appearance of the New Lobby Space in keeping with the general standard
maintained for the Building; and
(j) Tenant shall comply in all respects with Article 12 of the
Lease in performing any Alterations in the New Lobby Space, and any such
Alterations shall also comply in all respects, with the Tenant Design Criteria.
Without limiting the generality of the foregoing, Tenant shall, prior to
commencing any Alterations in the New Lobby Space, submit to Landlord for
Landlord's approval in accordance with said Article 12, plans showing the design
concept, signage and layout of the New Lobby Space.
4. Landlord's Contribution. (a) Landlord shall reimburse Tenant for
the cost of Initial Tenant Work (as hereinafter defined) in an amount (the "Work
Allowance") equal to the lesser of (i) Fifty-Seven Thousand Seven Hundred
Seventy-Five ($57,775) Dollars, or (ii) the actual cost of Initial Tenant Work,
upon the following terms and conditions:
(A) reimbursement shall be made to Tenant within fifteen
(15) Business Days after Initial Tenant Work has been completed and Tenant has
satisfied the requirements of Section 4(a)(B) of this Agreement;
(B) Tenant shall have supplied to Landlord: (1) a
certificate signed by Tenant's architect and an officer of Tenant certifying
that all Initial Tenant Work has been satisfactorily completed in accordance
with the plans and specifications therefor approved by
3
Landlord, (2) paid invoices evidencing the cost of all Initial Tenant Work, (3)
a general release from all contractors, subcontractors and materialmen
performing Initial Tenant Work, relating to the Initial Tenant Work and (4) all
Building Department sign-offs and inspection certificates and any permits
required to be issued by the Building Department or any other governmental
entities having jurisdiction thereover; and
(C) no Event of Default shall have occurred and be continuing.
(b) "Initial Tenant Work" means the installation of fixtures,
improvements and appurtenances attached to or built into the Premises, and shall
not include movable partitions, business and trade fixtures, machinery,
equipment, furniture, furnishings and other articles of personal property.
Tenant shall, as part of the Initial Tenant Work, construct any walls necessary
to separately demise the New Lobby Space.
(c) The right to receive reimbursement for the cost of Initial Tenant
Work as set forth in this Section 4 shall be for the exclusive benefit of
Tenant, it being the express intent of the parties hereto that in no event shall
such right be conferred upon or for the benefit of any third party, including,
without limitation, any contractor, subcontractor, materialman, laborer,
architect, engineer, attorney or any other person, firm or entity.
5. Broker. Each party hereto covenants, warrants and represents to the
other party that it had no conversations or negotiations with any broker
concerning the leasing of the New Lobby Space. Each party hereto shall indemnify
and hold harmless the other party against and from any claims for any brokerage
commissions and all costs, expenses and liabilities in connection therewith,
including, without limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by the indemnifying party with any broker
concerning the leasing of the New Lobby Space.
6. Memorandum of Amendment of Lease. At Tenant's request, Landlord and
Tenant shall promptly execute, acknowledge and deliver to each other a
memorandum in respect of this Agreement sufficient for recording and all
documents required by governmental authorities by reason of such memorandum. The
recording of such memorandum shall be at Tenant's expense. Upon the expiration
or any earlier termination of the Lease, Tenant, at Tenant's expense (but with
Landlord's cooperation), shall cause to be recorded an instrument stating that
the Lease is no longer in effect. Tenant hereby appoints Landlord as its
attorney-in-fact, coupled with an interest, for purposes of executing and
recording any such instrument. This Section 6 shall survive the expiration or
earlier termination of the Lease.
7. Lender Consent. Lender represents to Tenant that, as of the date of this
Agreement, the sole Superior Mortgage is held by The Sanwa Bank Limited
("Sanwa") pursuant to that certain Mortgage and Security Agreement dated as of
January 25, 1989. Landlord shall endeavor to obtain from Sanwa and deliver to
Tenant within thirty (30) days from the date of this Agreement a written
instrument wherein Sanwa consents to the execution and delivery of this
Agreement. If Landlord does not deliver said instrument within thirty (30) days
after the date of this Agreement, then Tenant shall have the right, by notice
given to Landlord within ten (10) days thereafter and before said instrument is
delivered, to terminate this Agreement (but the
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Lease shall otherwise remain in full force and effect as though this Agreement
had never been executed and delivered).
8. No Other Changes. Except as expressly set forth in this Agreement, the
Lease shall remain unmodified and in full force and effect, and the Lease as
modified herein is ratified and confirmed. All references in the Lease to "this
lease" shall hereafter be deemed to refer to the Lease as amended by this
Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement
as of the day and year first above written.
WFC TOWER A COMPANY,
Landlord
By: O&Y (U.S.) Development Company L.P.,
general partner
By: O&Y (U.S.) Development General
Partner Corp., general partner
By: /s/ [ILLEGIBLE]
------------------------
Name:
Title:
DOW XXXXX & COMPANY, INC.,
Tenant
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: XXXXXXX X. XXXXXXX
Title: TREASURER
5
EXHIBIT A
NEW LOBBY SPACE FLOOR PLAN
[LOBBY FLOORPLAN GRAPHIC APPEARS HERE]
[LOBBY FLOORPLAN GRAPHIC APPEARS HERE]
Fourth Amendment of
Lease - December 26, 0000
XXXXXX XXXXXXXXX OF LEASE
Agreement, dated as of December 26, 1996, between WFP TOWER A CO. L.P.
(f/k/a New Tower A LP), a Delaware limited partnership, having an office at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord",) and DOW XXXXX & COMPANY,
INC., a Delaware corporation having an office at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord's predecessor-in-interest, Olympia & York Battery Park
Company and Tenant entered into a Lease, dated October 21, 1983 (the "Original
Lease"), as amended by First Amendment of Lease, dated as of May 22, 1985 (the
"First Amendment"), letter agreement, dated May 19, l987, letter agreement,
dated as of December 1, 1988, Second Amendment of Lease, dated May 11, 1994 and
Third Amendment of Lease, dated as of December 1, 1995 (the "Third Amendment")
(collectively, the "Lease"), whereby Landlord is leasing to Tenant and Tenant is
hiring from Landlord certain premises (the "Premises") in the building located
at One World Financial Center, New York, New York (the "Building"); and
WHEREAS, Landlord and Tenant desire to amend the Lease to provide that
Landlord lease to Tenant and Tenant hire from Landlord certain additional space
on the +12'-6" lobby level and the +32'-0" lobby level of the Building.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Defined Terms. All capitalized terms used herein but not defined shall
have the meanings ascribed to them in the Lease.
2. Lease of Additional Space. (a) Landlord hereby leases to Tenant and
Tenant hereby hires from Landlord, upon and subject to the terms, covenants,
provisions and conditions of this Agreement, the following:
(i) the two portions of the +12'-6" lobby level of the Building,
substantially as shown hatched and labeled "A" (the "Lower Lobby A Space")
and "B" (the "Lower Lobby B Space") on the floor plan attached hereto as
Exhibit A and made a part hereto (collectively, the "Additional Lower Lobby
Space"); and
(ii) the portion of the +32'-0" lobby level of the Building,
substantially as shown cross-hatched and labeled "Dow Xxxxx #3" on the
floor plan attached hereto as Exhibit B and made a part hereof (the
"Additional Upper Lobby Space"; the Additional Lower Lobby Space and the
Additional Upper Lobby Space are collectively called the "Additional Lobby
Space").
(b) The term of the Lease of the Additional Lobby Space shall commence
on the date of this Agreement (the "ALS Commencement Date") and shall end at
11:59 p.m. on May
31, 2005 (subject to Tenant's right to extend the term of the Lease in
accordance with the provisions of Article 5 of the Original Lease, as amended by
this Agreement), or on such earlier date upon which the term of the Lease shall
expire or be cancelled or terminated pursuant to any of the conditions or
covenants of the Lease or pursuant to law. The Additional Lobby Space shall be
conclusively deemed to contain the following rentable square feet:
Lower Lobby A Space: 6,122
Lower Lobby B Space: 496
Additional Upper Lobby Space: 1,485
(c) Effective as of the ALS Commencement Date, all references in
the Lease to the "Lobby Premises" shall (except to the extent other terms are
provided (i) in this Agreement with respect to the Additional Lobby Space or
(ii) in the Third Amendment with respect to the New Lobby Space), be deemed to
refer collectively to the Lobby Premises demised pursuant to the First
Amendment, the New Lobby Space demised pursuant to the Third Amendment and the
Additional Lobby Space.
(d) "ALS Rent Commencement Date" means April 1, 1997.
3. Terms Applicable to Additional Lobby Space. The lease of the
Additional Lobby Space by Tenant shall be on all of the terms and conditions of
the Lease, except that:
(a) the term of the lease off the Additional Lobby Space shall be
as set forth in Section 2, above;
(b) Landlord shall not be required to perform any work, to pay any
amount, to install any fixtures or equipment or to render any services to
prepare the Building or the Additional Lobby Space for Tenant's use or
occupancy, and Tenant shall accept the Additional Lobby Space is its "as is"
condition on the ALS Commencement Date;
(c) Fixed Rent with respect to the Additional Lobby Space shall be
payable from and after the ALS Rent Commencement Date to and including May 31,
2005 as follows:
(i) with respect to the Lower Lobby A Space, at the annual
rate of Ninety Seven Thousand Nine Hundred and Fifty Two
($97,952.00) Dollars;
(ii) with respect to the Lower Lobby B Space, at the annual
rate of Four Thousand Nine Hundred Sixty ($4,960.00) Dollars; and
(iii) with respect to the Additional Upper Lobby Space, at the
annual rate of Forty Nine Thousand and Five ($49,005.00) Dollars;
during such period, Fixed Rent shall be payable at the times and in the manner
set forth in the Lease; provided, that the provisions of Section 1.05(c) of the
Original Lease shall not apply to Fixed Rent required to be paid with respect to
the Additional Lobby Space;
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(d) from and after the ALS Commencement Date to and including the
Expiration Date, Tenant shall pay to Landlord PILOT Payments with respect to the
Additional Lobby Space at the times and in the manner set forth in the Lease,
except that:
(i) for purposes of the Additional Lower Lobby Space only (A)
Section 3.02 of the Original Lease shall be deemed to read in its
entirety as follows: "Tenant shall pay for each PILOT Year during
the term of this lease an amount (herein called "PILOT Payment")
equal to respect to the Additional Lower Lobby Space only, Tenant
shall pay PILOT Payments on a net basis and not as an escalation
over the Base PILOT Year), and (B) the term "Tenant's Proportionate
PILOT Share" shall mean 0.4529%; and
(ii) for purposes of the Additional Upper Lobby Space only (A)
the term "Base PILOT Year" shall mean the PILOT Year ending June
30, 1995 and (B) the term "Tenant's Proportionate PILOT Share"
shall mean 0.1016%;
(e) from and after the ALS Commencement Date to and including the
Expiration Date, Tenant shall pay to Landlord Operating Payments with respect to
the Additional Lobby Space at the times and in the manner set forth in the
Lease, except that:
(i) for purposes of the Additional Lower Lobby Space only (A)
Section 3.08 of the Original Lease shall be deemed to read in its
entirety as follows: "Tenant shall pay for each Operating Year
during the term of this lease Tenant's Proportionate Operating
Share of the Operating Expenses for such Operating Year." (i.e.,
with respect to the Additional Lower Lobby Space only, Tenant shall
pay Operating Payments on a net basis and not as an escalation over
the Base Operating Year), and (B) the term "Tenant's Proportionate
Operating Share" shall mean 0.4529%; and
(ii) for purposes of the Additional Upper Lobby Space only (A)
the term "Base Operating Year" shall mean the 1996 calendar year,
(B) the term Tenant's Proportionate Operating Share shall mean
0.1016% and (C) the term "Base Operating Expenses" shall mean the
Operating Expenses for the Base Operating Year;
(f) notwithstanding the provisions of Sections 3(c), (d) and (e)
above to the contrary, but subject to Section 3(g) below, provided that no Event
of Default under the Lease shall have occurred and be continuing at the time
such installments become due and payable, Tenant shall be entitled to an
abatement of the installments of Fixed Rent, PILOT Payments and Operating
Payments (but not payments in respect of electricity), with respect to the
Additional Lobby Space which first become due and payable on or before March 1,
1997;
3
(g) Tenant shall separately pay for electric energy supplied to the
Additional Lobby Space from and after the ALS Commencement Date in the amounts
and at the times set forth in Article 15 of the Original Lease. Notwithstanding
the provisions of Section 15.01(a) of the Original Lease to the contrary, such
electric energy shall be furnished to the Additional Lower Lobby Space through a
submeter or submeters and related equipment, installed and maintained by Tenant,
at Tenant's expense, measuring the amount of electric energy furnished to the
Additional Lower Lobby Space. Tenant shall install such meters within 60 days
after the ALS Commencement Date and, until such installation, Tenant shall pay
for electricity furnished to the Additional Lower Lobby Space at the rate of
$3.25 per rentable square foot of the Additional Lower Lobby Space per annum,
payable in equal monthly installments on the ALS Commencement Date and on the
first date of each and every month thereafter (appropriately prorated for any
partial month);
(h) Tenant shall pay to Landlord, upon the execution and delivery
of this Agreement by Tenant, the sum of $12,659.75 in respect of the mostly
installments of Fixed Rent in respect of the Additional Lobby Space attributable
to the month of April 1997;
(i) Tenant shall use and occupy the Additional Lobby Space solely
for television production and broadcast studio purposes, and for no other use or
purpose (except that the Additional Upper Lobby Space and the Lower Lobby B
Space shall be used for the installation and operation of mechanical equipment
related to television production and broadcast studio purposes); provided, that
if Tenant desires to use the Additional Lobby Space for any different purpose,
Landlord will not unreasonably withhold or delay its consent to such different
use as long as (i) such different use is not prohibited by (A) Section 2.03 or
2.04 of the Original Lease, (B) the Ground Lease, (C) any instruments affecting
title to the Building, (D) any other lease in the Project, or (E) any other
agreement to which Landlord is a party or by which it is bound; (ii) such
different use is in keeping with the character, reputation and appearance of the
lobby of a first-class office building; and (iii) in Landlord's reasonable
judgment, such different use is consistent with Landlord's overall plans for the
types and varieties of uses in the lobby of the Building and the rest of the
Project. If Landlord withholds such consent, it will specify its reason(s)
therefor;
(j) Tenant shall:
(i) occupy and use during the entire Lease term, the entire
Additional Lobby Space in accordance with the terms of the Lease,
and conduct Tenant's business therein in a manner consistent with
the character, reputation and appearance of a first-class office
building;
(ii) keep the display windows, if any, and signs well lighted
during such hours and days and in the manner as Landlord shall from
time to time determine;
(iii) not operate its business under the Lease so as to breach
or violate any other lease entered into by Tenant, or violate any
contract
4
entered into by Tenant, or violate any judgment or decree imposed
upon Tenant;
(iv) redecorate the Additional Lobby Space and refinish, renew
and/or replace the fixtures, furnishings, decorations and equipment
therein from time to time during the Lease term, at Tenant's
expense, as in the reasonable judgment of Landlord may be necessary
to preserve and maintain the attractive appearance of the
Additional Lobby Space in keeping with the general standard
maintained for the Building;
(k) Tenant shall comply in all respects with Article 12 of the
Original Lease in performing any Alterations in the Additional Lobby Space, and
any such Alterations shall also comply in all respects, with the Tenant Design
Criteria. Without limiting the generality of the foregoing, Tenant shall, prior
to commencing any Alterations in the Additional Lobby Space, submit to Landlord
for Landlord's approval in accordance with said Article 12, plans showing the
design concept, signage and layout of the Additional Lobby Space. Tenant, at
Tenant's expense, shall construct any partitions necessary to separately demise
the Additional Lobby Space and shall install such soundproofing in the portions
of the Additional Lobby Space to be used for mechanical equipment as Landlord
may reasonably require;
(l) the following shall apply to the Lobby Premises:
(i) Landlord hereby establishes a "Control Zone", consisting
of the portion of the Land and the Building within three feet of
the Lobby Premises, both interior and exterior. Within the Control
Zone, Landlord shall have the right to approve all lighting (as to
type, intensity and hours of illumination), signage, and all other
aspects of design, and, in the case of the retail sale of
merchandise, the presentation and marketing of Tenant's goods. No
alteration in any approved design or presentation shall be made
without Landlord's approval. In addition to all other rights
available to Landlord hereunder or at law or in equity for Tenant's
failure to comply with Landlord's requirements. Landlord shall have
the right to enjoin any usage of the Control Zone of which Landlord
does not approve, and to block any storefront of the Lobby Premises
from view;
(ii) Tenant shall not place or install any sign on the exterior
of the Building, nor shall Tenant place in any display case,
windows, entrance doors or any other area visible to the public
view from the outside of the Building or from the outside of the
Lobby Premises, any signs, flashing signs, animated signs, or
otherwise, without first obtaining in each instance Landlord's
prior written consent and approval; provided, that Tenant may
utilize dignified interior signs, lettering, announcement, price
schedule, menu or any other kind or forms of inscription which are
neat, professionally printed and in good taste without obtaining
Landlord's approval, to the extent only, however, that same do not
detract from the
5
dignity and character of the Building on the express condition,
however, that Tenant shall promptly remove any sign if Landlord
shall object thereto. Landlord shall not unreasonably withhold its
consent to any sign that complies with the Tenant Design Criteria;
(iii) All ceiling heights, draperies, and other installations
affecting the appearance of the Lobby Premises, or which are
visible from the exterior shall be subject to the prior written
approval of Landlord; provided, that if such installation is more
than decorative in nature, such installation shall be subject to
the provisions of Article 12 of the Original Lease;
(iv) If Landlord shall give its written consent to requested
proposed signs or advertising by Tenant, no change in the
composition, dimensions or content of such signs or advertising may
thereafter be made without first obtaining Landlord's prior written
consent thereto in each instance;
(v) Tenant, at Tenant's sole cost and expense, prior to
installing or displaying any sign shall must apply for, obtain and
thereafter maintain throughout the term of the Lease all such sign
permits as shall be required by any law, rule or regulation
presently existing or hereafter enacted of any governmental
authority or agency or department thereof having jurisdiction, for
the installation, display and maintenance of any such sign;
(vi) On the expiration or sooner termination of the term of
the Lease, Tenant, at Tenant's sole cost and expense, shall (i)
promptly remove all signs installed or displayed by Tenant, and
(ii) promptly repair in a good and workmanlike manner in conformity
with law and all applicable provisions of the Lease, all damage to
the Building caused by such removal;
(m) (i) Subject to the further provisions of this Section 3(m),
Tenant shall have the option (the "ALS Termination Option") to terminate the
Lease with respect to the Additional Lobby Space only, effective as of April 1,
2002 (the "ALS Termination Date"), by giving notice of such election (the "ALS
Termination Notice") to Landlord on or before April 1, 2001.
(ii) Tenant shall pay to Landlord, on or before the date
Tenant gives to Landlord the ALS Termination Notice, a cancellation payment (the
"ALS Cancellation Payment") equal to the sum of (x) $151,917.00, (y) twelve (12)
times the amount of the monthly installment of the PILOT Payment payable by
Tenant to Landlord during the calendar month in which Tenant gives to Landlord
they ALS Termination Notice and (z) twelve (12) times the amount of the monthly
installment of the Operating Payment payable by Tenant to Landlord during the
calendar month in which Tenant gives Landlord the ALS Termination Notice.
6
(iii) Failure by Tenant timely to pay to Landlord the ALS
Cancellation Payment shall render Tenant's exercise of the ALS Termination
Option null and void and of no force and effect, and the Lease of the Additional
Lobby Space shall continue in full force and effect as if the ALS Termination
Notice had never been given.
(iv) If Tenant exercises the ALS Termination Option, then on or
prior to the ALS Termination Date, Tenant shall remove all of its equipment,
fixtures, furniture, leasehold improvements and all of Tenant's other personal
property from the Additional Lobby Space and shall restore such Additional Lobby
Space to its condition on the date that Tenant first took possession of the
Additional Lobby Space to perform its initial Alterations therein, ordinary wear
and tear excepted.
(v) If Tenant timely exercises the ALS Termination Option and
timely pays the ALS Cancellation Payment, then on the ALS Termination Date the
Lease shall terminate with respect to the Additional Lobby Space only (but shall
continue in full force and effect with respect to any other space then included
in the Premises).
(n) Notwithstanding the terms of Article 5 of the Lease, Tenant may, by
notice to Landlord, delivered concurrently with Tenant's notice to Landlord of
its exercise of its first renewal option set forth in Article 5 of the Lease,
elect to exclude from the Premises all of the Additional Lobby Space and if
Tenant so elects, effective as of the Expiration Date, the Lease shall terminate
with respect to the Additional Lobby Space. If Tenant so elects to exclude the
Additional Lobby Space from the Premises in connection with Tenants exercise of
such first renewal option, Tenant shall quit and surrender the Additional Lobby
Space in accordance with Section 24.01 of the Original Lease, and the Premises
shall then be deemed to exclude the Additional Lobby Space.
(o) Section 25.02(e) of the Lease shall be deleted in its entirety.
(p) The following shall be added immediately following the second (2nd)
sentence of Paragraph 6(r) of the First Amendment:
"Notwithstanding the foregoing, if Tenant vat or deserts the
Additional Lobby Space (but not any portion of the remainder of the
Lobby Premises) in the manner described above in this subparagraph
(r), then Landlord may terminate this Lease only insofar as it
relates to the Additional Lobby Space, and the Lease insofar as it
relates to the remainder of the Lobby Premises (exclusive of the
Additional Lobby Space) shall otherwise continue in full force and
effect, and Tenant shall remain liable for its obligations under the
Lease relating to the Lobby Premises, and for its obligations under
the Lease relating to the remainder of the Additional Lobby Space
which accrued prior to such termination."
7
4. Broker. Each party hereto covenants, warrants and represents to the
other party that it had no conversations or negotiations with any broker
concerning the leasing of the Additional Lobby Space. Each party hereto shall
indemnify and hold harmless the other party against and from any claims for any
brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, attorneys' fees and expenses, arising
out of any conversations or negotiations had by the indemnifying party with any
broker concerning the leasing of the Additional Lobby Space.
5. Memorandum of Amendment of Lease. At Tenant's request, Landlord and
Tenant shall promptly execute, acknowledge and deliver to each other a
memorandum in respect of this Agreement sufficient for recording and all
documents required by governmental authorities by reason of such memorandum. The
recording of such memorandum shall be at Tenant's expense. Upon the expiration
or any earlier termination of the Lease, Tenant, at Tenant's expense (but with
Landlord's cooperation), shall cause to be recorded an instrument stating that
the Lease is no longer in effect. Tenant hereby appoints Landlord as its
attorney-in-fact, coupled with an interest, for purposes of executing and
recording any such instrument. This Section 5 shall survive the expiration or
earlier termination of the Lease.
6. Lender Consent. Landlord represents to Tenant that, as of the date of
this Agreement, the sole Superior Mortgage is held by The Sanwa Bank Limited
("Sanwa") pursuant to that certain Consolidation, Amendment and Restatement of
Leasehold Mortgage, Assignment of Rents and Leases and Security Agreement dated
as of November 21, 1996. Landlord shall endeavor to obtain from Sanwa and
deliver to Tenant within thirty (30) days from the date of this Agreement a
written instrument wherein Sanwa consents to the execution and delivery of this
Agreement. If Landlord does not deliver said instrument within thirty (30) days
after the date of this Agreement, then Tenant shall have the right, by notice
given to Landlord within ten (10) days thereafter and before said instrument is
delivered, to terminate this Agreement (but the Lease shall otherwise remain in
full force and effect as though this Agreement had never been executed and
delivered).
7. No Other Charges. Except as expressly set forth in this Agreement, the
Lease shall remain unmodified and in full force and effect, and the Lease as
modified herein is ratified and confirmed. All references in the Lease to "this
lease" shall hereafter be deemed to refer to the Lease as amended by this
Agreement.
8
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement
as of the day and year first above written.
WFP TOWER A. CO., L.P.
(f/k/a New Tower A LP), Landlord
By: WFP Tower A Co. G.P. Corp., general partner
By: /s/ Xxxxxxx X. xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: EVP
DOW XXXXX & COMPANY, INC.,
Tenant
By: /s/ Xxxxxxx X Xxxxxxx
--------------------------
Name: XXXXXXX X XXXXXXX
Title: TREASURER
9
Exhibit A
ADDITIONAL LOWER LOBBY SPACE FLOOR PLAN
EXHIBIT A
[LOBBY FLOORPLAN GRAPHIC APPEARS HERE]
Exhibit B
ADDITIONAL UPPER LOBBY SPACE FLOOR PLAN
EXHIBIT B
[LOBBY FLOORPLAN GRAPHIC APPEARS HERE]
Partial Termination and Surrender
Agreement & Fifth
Amendmend of Lease
PARTIAL TERMINATION AND SURRENDER AGREEMENT
AND FIFTH AMENDMENT OF LEASE
THIS AGREEMENT, made as of the 25/th/ day of February 1999, between WFP
TOWER A CO. L.P., a Delaware limited partnership, having an address at c/o
Brookfield Financial Properties, Inc., Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Landlord"), and DOW XXXXX & COMPANY, INC., a Delaware corporation,
having an address at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Tenant").
W I T N E S S E T H :
WHEREAS, by Office Lease dated October 21, 1983, as amended by (i) First
Amendment of Lease dated as of May 22, 1985, (ii) letter agreement dated May 19,
1987, (iii) letter agreement dated as of December 1, 1988, (iv) Second Amendment
of Lease dated May 11, 1994, (v) Third Amendment of Lease dated as of December
1, 1995, and (vi) Fourth Amendment of Lease (the "Fourth Amendment") dated as of
December 26, 1996 (as so amended, the "Lease"), Landlord (either directly or
through its predecessor in interest) demised to Tenant premises consisting of
the 9th to 18th floors, inclusive, the Additional Premises, the Elevator
Premises, the Duct Premises, and the Lobby Premises (collectively, the "Existing
Premises") in the building known by the street address Tower A, One World
Financial Center, New York, New York (the "Building");
WHEREAS, the Lobby Premises include premises collectively defined in the
Fourth Amendment as the Additional Lobby Space, consisting of the Lower Lobby A
Space which contains 6,122 rentable square feet, the Lower Lobby B Space which
contains 496 rentable square feet and the Additional Upper Lobby Space which
contains 1,485 rentable square feet; and
WHEREAS, Tenant wishes to be released from its obligations under the Lease
with respect to the 17th floor, the 18th floor and the Additional Lobby Space of
the Existing Premises, to surrender such portions of the Existing Premises, and
otherwise to amend the Lease, and Landlord is willing to grant such release,
accept such surrender and so amend the Lease, all upon the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. All capitalized terms not otherwise defined in this Agreement shall have
the meanings ascribed to them in the Lease.
2. (a) Tenant shall surrender to Landlord possession of the entire 17th and
18th floors and the Additional Lobby Space of
the Existing Premises in two phases effective upon the termination dates set
forth in subparagraphs (i) and (ii) below.
(i) Effective as of 11:59 p.m. on February 28, 1999 (the
"Phase I Surrender Date"), Tenant shall surrender to Landlord possession of the
Additional Lobby Space of the Existing Premises consisting of 8,103 rentable
square feet (the "Phase I Surrendered Premises"), and shall surrender all of
Tenant's right, title and interest in and to the Phase I Surrendered Premises
under the Lease, with the intent and purpose that the term of the Lease with
respect to the Phase I Surrendered Premises shall be extinguished in the same
manner and with the same effect as if the term of the Lease had expired.
(ii) Effective as of 11:59 p.m. on April 30, 1999 (the
"Phase II Surrender Date"), Tenant shall surrender to Landlord possession of the
entire 17th and 18th floors of the Existing Premises consisting of 75,149
rentable square feet (the "Phase II Surrendered Premises"), and shall surrender
all of Tenant's right, title and interest in and to the Phase II Surrendered
Premises under the Lease, with the intent and purpose that the term of the Lease
with respect to the Phase II Surrendered Premises shall be extinguished in the
same manner and with the same effect as if the term of the Lease had expired
(the Phase I Surrendered Premises and the Phase II Surrendered Premises are
sometimes hereinafter referred to individually as an "Applicable Surrendered
Premises" and collectively as the "Surrendered Premises"; the Phase I Surrender
Date and the Phase II Surrender Date are sometimes hereinafter referred to
individually as an "Applicable Surrender Date").
(b) Effective as of the Phase I Surrender Date, all references in
the Lease to the "Lobby Premises" shall be deemed to exclude the Phase I
Surrendered Premises, and effective as of the Phase II Surrender Date, all
references in the Lease to the "Office Premises" and to the "Premises" shall be
deemed to exclude the Phase II Surrendered Premises.
(c) In consideration of the amendment of the Lease and the
acceptance by Landlord of the surrender of the Surrendered Premises by Tenant,
Tenant shall pay to Landlord by wire transfer of immediately available federal
funds in accordance with the wiring instructions set forth in Schedule A, the
amount of $15,655,861, consisting of rent in the amount of (i) $1,125,000 in
consideration of Landlord's agreement to terminate the Lease with respect to the
Phase I Surrendered Premises and (ii) $14,530,861 in consideration of Landlord's
agreement to terminate the Lease with respect to the Phase II Surrendered
Premises. Such payment, which shall be deemed Additional Charges under the
Lease, shall be made by Tenant to Landlord by 3:00 p.m. EST on the second
business day (the "Due Date"), after Landlord shall have delivered to Tenant a
copy of the Consent (as defined in Section 12 of this Agreement). If Tenant
fails to make such payment to Landlord by such date and time, time being deemed
to be of the essence with respect to Tenant's obligation to make
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such payment, then Landlord, at its option, may terminate
this Agreement by notice to Tenant given within 14 days after the Due Date and,
in such event, this Agreement and Tenant's obligation to pay such fee shall be
null and void (but the Lease shall otherwise remain in full force and effect as
though this Agreement had never been executed and delivered). If Landlord does
not so terminate this Agreement, then this Agreement shall remain in full force
and effect and Landlord may exercise all of its rights and remedies under the
Lease, as amended by this Agreement, and under law, to collect such payment from
Tenant. Interest shall accrue on such payment from the Due Date until the date
paid at the rate of the lesser of (x) four percentage points above the then
current rate of interest publicly announced from time to time by Citibank, N.A.
or its successor, as its "base rate" (or such other term as may be used by
Citibank, N.A. from time to time, for the rate presently referred to as its
"base rate") and (y) the maximum rate permitted by applicable law.
(d) On each Applicable Surrender Date, Tenant shall deliver each
Applicable Surrendered Premises to Landlord vacant, broom-clean and free and
clear of all tenancies, subtenancies and occupancies and otherwise in accordance
with the terms of the Lease and this Agreement and, with respect to the
Additional Lobby Space, Tenant shall not be obligated to perform the work to
restore the Additional Lobby Space to its original condition, as described in
Section 3(m)(iv) of the Fourth Amendment, but Tenant shall reimburse Landlord
for a portion of the cost to restore the Additional Lobby Space to such
condition, as follows: Landlord shall pay the first $10,000 of cost incurred for
such restoration work and Tenant shall pay the balance of such cost up to the
sum of $40,000. Tenant shall reimburse Landlord for such costs (up to $40,000)
within 10 days after Landlord presents its xxxx to Tenant accompanied by
supporting invoices evidencing that Landlord has incurred the first $10,000 of
such costs and the additional costs for which Landlord is seeking reimbursement
from Tenant.
(e) Notwithstanding the provisions of the last sentence of Section
24.01 of the Lease and those of paragraph (d) of this Section 2, Tenant shall
not remove the private elevator installed by Tenant between the 16th and 18th
floors of the Existing Premises. However, Landlord shall have the right to
remove same at Landlord's option and at its cost. During the remaining term of
the Lease and for so long as such private elevator shall remain in the Existing
Premises, Tenant shall, on reasonable notice from Landlord (except in the case
of an emergency, in which event no notice shall be required), afford Landlord
access on the 15th and 16th floors of the Existing Premises to all
equipment relating to or serving such private elevator, including
without limitation, the elevator pit, elevator motors, elevator cables, and all
other mechanical and electrical equipment, and to the areas surrounding such
private elevator for the purpose of enabling Landlord to repair, maintain,
replace, operate and remove same and to restore the Phase II Surrendered
Premises.
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Such access shall be on all of the terms and conditions of the Lease, including
Section 14.03. Further, Tenant shall, if requested by Landlord, assign to
Landlord or its designee Tenant's service contract with Xxxx Elevator Company
(the "Service Contract") with respect to the maintenance of the private elevator
(a copy of which Tenant has previously delivered to Landlord). Tenant shall
maintain the Service Contract in full force and effect and make all payments due
thereunder until the earliest to occur of: (i) the date Tenant pays Landlord the
sum referred to in Section 2(c) of this Agreement, (ii) Landlord's removal of
the private elevator and (iii) Landlord's request to Tenant to assign the
Service Contract to Landlord or its designee.
3. Landlord and Tenant confirm that the Lease, as amended by this
Agreement, shall continue in full force and effect with respect to all of the
Existing Premises, other than the Surrendered Premises after each Applicable
Surrender Date. Tenant shall continue to pay all Fixed Rent and Additional
Charges for the Surrendered Premises through and including each Applicable
Surrender Date in accordance with the Lease. The provisions of this Section 3
shall survive the termination or expiration of the Lease.
4. Tenant represents and warrants on behalf of itself and its
successors and assigns, that it has not done or suffered to be done (and Tenant
agrees that it will not do or suffer to be done) anything whereby the
Surrendered Premises or any alteration, decoration, installation or improvement
in and to the Surrendered Premises (collectively, the "Improvements") has or
will become encumbered in any way whatsoever and that no one other than Tenant
has acquired or will acquire through or under Tenant any right, title, or
interest in, to or under the Surrendered Premises or the Improvements. This
Section 4 shall survive the termination or expiration of the Lease and this
Agreement.
5. On each Applicable Surrender Date, Landlord shall accept the
surrender of each Applicable Surrendered Premises and release Tenant from its
obligations under the Lease with respect to such Applicable Surrendered
Premises, except that Tenant will continue to remain liable thereafter: (a) if
Tenant fails to surrender the Applicable Surrendered Premises in accordance with
the terms of the Lease, as amended by this Agreement, (i) for 125% of the sum of
the Fixed Rent and monthly Additional Charges attributable to the respective
Applicable Surrendered Premises, at the rates then payable under the Lease, for
the thirty-day period following each Applicable Surrender Date, (ii) for 150% of
the sum of the Fixed Rent and monthly Additional Charges attributable to the
respective Applicable Surrendered Premises, at the rates then payable under the
Lease, for the next thirty-day period after the period referred to in clause (i)
above, and (iii) for the amounts described in clause (ii) above and for
Landlord's liabilities, costs and expenses of every nature occasioned by
Tenant's failure to surrender such Applicable Surrendered Premises in accordance
-4-
with the terms of the Lease, as amended by this Agreement if Tenant fails to
surrender the Applicable Surrendered Premises by the date that is 60 days after
the Applicable Surrender Date (including, without limitation, reasonable
attorneys' fees and disbursements and reasonable attorneys' fees and
disbursements incurred in establishing liability under this Section 5 and in
collecting amounts payable hereunder); (b) for all liabilities and claims
incurred by or made against Landlord and/or Tenant for labor and materials
asserted to have been furnished to Tenant or anyone claiming by, through or
under Tenant with respect to such Applicable Surrendered Premises, up to and
including each Applicable Surrender Date; (c) for any claims by Landlord against
Tenant for contribution or indemnification or both arising out of third-party
claims against Landlord to the extent provided for in the Lease; (d) for all
obligations and liabilities of Tenant with respect to each Applicable
Surrendered Premises accruing on or prior to the Applicable Surrender Date; and
(e) for all other obligations of Tenant with respect to each Applicable
Surrendered Premises expressly provided in the Lease or this Agreement to
survive the termination or expiration thereof.
6. Effective on each Applicable Surrender Date, Tenant releases
Landlord and its successors and assigns from and against any and all claims,
obligations and liabilities of every kind or nature whatsoever under the Lease
thereafter arising out of or in connection with each Applicable Surrendered
Premises surrendered on such Applicable Surrender Date, other than obligations
of Landlord with respect to such Applicable Surrendered Premises expressly
provided in the Lease to survive the termination of the Lease.
7. The Lease is hereby amended as follows:
(a) Effective on the day following the Phase I Surrender Date, the
Fixed Rent set forth in Section 3(c) of the Fourth Amendment shall be reduced by
the sum of $151,917 per annum (or $12,659.75 per month). Effective on the day
following the Phase II Surrender Date, the Fixed Rent set forth in Section
1.05(b)(iv) of the Lease shall be further reduced by the sum of $3,381,705 per
annum (or $281,808.75 per month) until May 31, 2000, and the Fixed Rent set
forth in Section 1.05(b)(v) of the Lease shall be further reduced by the sum of
$3,757,450 per annum (or $313,120.83 per month) from and after June 1, 2000.
(b) Effective on the day following the Phase I Surrender Date,
Tenant's Proportionate PILOT Share and Tenant's Proportionate Operating Share
shall be reduced to 25.77%. Effective on the day following the Phase II
Surrender Date, Tenant's Proportionate PILOT Share and Tenant's Proportionate
Operating Share shall be further reduced to 20.733%.
(c) Section 32.01(a) of the Lease is hereby amended as follows:
-5-
(a) If to Landlord:
WFP Tower A Co. L.P. c/o Brookfield Financial Properties, Inc.,
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President and Chief Operating Officer
with copies to:
WFP Tower A Co. L.P. c/o Brookfield Financial Properties, Inc.
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
and
Xxxxxx Xxxxxxxxx & Xxxxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
8. This Agreement shall not be binding upon or enforceable against
Landlord unless and until Landlord shall have (i) executed and unconditionally
delivered to Tenant an executed counterpart of this Agreement and (ii) received
the Consent.
9. Each party represents to the other that such party has dealt with no
broker other than Xxxxxxx & Xxxxxxxxx, Inc. ("Broker") in connection with this
Agreement or the surrender of the Surrendered Premises, and each party shall
indemnify and hold the other harmless from and against all loss, cost, liability
and expense (including, without limitation, reasonable attorneys' fees and
disbursements) arising out of any claim for a commission or other compensation
by any broker (excluding Broker with respect to Tenant's indemnity to Landlord)
which alleges that it has dealt with the indemnifying party in connection with
this Agreement or the surrender of the Surrendered Premises. Landlord shall pay
to Broker a commission to be agreed upon between Landlord and Broker, subject
to, and in accordance with, the terms and conditions of a separate agreement
between Landlord and Broker. This Section 9 shall survive the termination or
expiration of the Lease, with respect to the Surrendered Premises, and this
Agreement.
10. Simultaneously with the execution and delivery of this Agreement,
Landlord and Tenant are executing (i) the New York City Real Property Transfer
Tax Return (the "RPT Return") and (ii) the New York State Combined Real Estate
Transfer Tax Return and Credit Line Mortgage Certificate (the "TP-584"). Tenant
shall file the RPT Return on or before the date required by law with the New
York City Department of Finance and shall give Landlord notice of such filing.
Tenant shall file the TP-584 on or before the date required by law with the New
York State
-6-
Department of Taxation and Finance and shall give Landlord notice of
such filing. Although Landlord and Tenant do not anticipate that any New York
City Real Property Transfer Tax (herein called "RPT Tax"), or New York State
Real Estate Transfer Tax (herein called "State Transfer Tax") will be payable in
connection with this Agreement or the transaction contemplated hereby, to the
extent any such RPT Tax or State Transfer Tax is due and payable by Tenant as
transferor, Tenant shall pay same as and when due and shall pay any late fees,
penalties and interest assessed for failure to pay same when due. Tenant shall
indemnify Landlord against, and hold Landlord harmless of and from, any and all
liabilities, losses, claims, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements and reasonable attorneys' fees and
disbursements incurred in establishing liability under this Section 10 and in
collecting amounts payable hereunder) arising from a breach of Tenant's
obligations under this Section 10 or incurred in connection with any RPT Tax or
State Transfer Tax or any other real estate or real property transfer tax that
is or may become, or may be asserted to be or become due, owing or imposed in
connection with this Agreement or the surrender of the Surrendered Premises now
or hereafter by the City or State of New York or any agent or instrumentality of
such City or State, including, without limitation, any penalties and interest
imposed or to be imposed in connection therewith. Tenant shall file such other
returns, affidavits or other documents that may be required in connection with
such other taxes and Landlord shall sign such returns, affidavits and documents
and otherwise cooperate with Tenant in making any filing required in connection
with such taxes. This Section 10 shall survive the termination or expiration of
the Lease and this Agreement.
11. Presently, three passenger elevators in the low mid rise elevator
bank serve the 17/th/ floor of the Existing Premises and six passenger elevators
in the high mid rise elevator bank serve floors 18 to 26 in the Building. Within
a reasonable time after the Phase II Surrender Date, Landlord shall, at Tenant's
sole cost (which shall not exceed $158,000), modify the three elevators in the
low mid rise elevator bank so that they serve no floor higher than the 16/th/
floor of the Building and modify the six elevators in the high mid rise elevator
bank to serve the 17/th/ floor in the Building, including without limitation,
the following work: (i) close the existing elevator door openings on the 17/th/
floor and modify the elevators in the low mid rise elevator bank so they serve
no floor higher than the 16/th/ floor, (ii) create new elevator door openings on
the 17/th/ floor for the purpose of extending down to such floors all of the
elevators in the high mid rise elevator bank, (iii) modify all of the elevators
in the high mid rise elevator bank to serve the 17/th/ floor, and (iv) perform
such other work in or to the elevator lobbies on the 16/th/ and 17/th/ floors
and in or to the elevators in either or both of the low mid rise elevator bank
and the high mid rise elevator bank to enable them properly to serve the floors
with respect to which such modifications are being made, including without
limitation, the purchase and installation of
-7-
any necessary cables, motors, electrical or mechanical equipment, elevator call
buttons, computer systems (including those designed to accelerate cab speed so
that the addition of the 17/th/ floor to the high mid rise elevator bank will
not adversely affect service in such bank). Tenant shall pay all such costs to
Landlord (up to but not in excess of $158,000) within fifteen days after being
billed therefor accompanied by supporting invoices. On reasonable notice from
Landlord, Tenant shall afford Landlord access to such portions of the Existing
Premises as may be necessary or desirable to enable Landlord to accomplish the
work set forth in this Section 11.
12. Landlord represents to Tenant that, as of the date of this
Agreement, the sole Superior Mortgage is held by The Sanwa Bank Limited, New
York Branch ("Sanwa") pursuant to a Consolidation, Amendment and Restatement of
Leasehold Mortgage, Assignment of Rents and Leases and Security Agreement dated
as of November 21, 1996. Landlord shall endeavor to obtain from Sanwa and
deliver to Tenant within thirty days from the execution and delivery by both
Landlord and Tenant of this Agreement a written instrument wherein Sanwa
consents to the execution and delivery of this Agreement (the "Consent"). If
Landlord does not deliver the Consent within such thirty day period, either
Landlord or Tenant shall have the right, by notice given to the other within ten
days thereafter and before said instrument is delivered, to terminate this
Agreement (but the Lease shall otherwise remain in full force and effect as
though this Agreement had never been executed and delivered).
13. This Agreement shall be governed by and construed in accordance
with New York law without regard to conflicts of law principles.
14. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same instrument.
15. Except as amended by this Agreement, the Lease is ratified and
confirmed and remains in full force and effect.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Agreement as of the day and year first above written.
LANDLORD:
WFP TOWER A CO. L.P.
By: WFP Tower A Co. G.P. Corp.,
General Partner
By: /s/ [ILLEGIBLE]
-------------------------------
Name: [ILLEGIBLE]
-----------------------------
Title: [ILLEGIBLE]
----------------------------
TENANT:
DOW XXXXX & COMPANY, INC.
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------
Name: Xxxxxx X. XxXxxxx
-----------------------------
Title: Treasurer
----------------------------
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SCHEDULE A
WIRING INSTRUCTIONS
Credit: The Sanwa Bank Limited, New York Branch
ABA#: 026 009 823
Account Name: WFP Tower A. Co., L.P.
Account No: 618107
A-1
Sixth Amendment of
Lease - September 1, 1999
SIXTH AMENDMENT OF LEASE
THIS AGREEMENT, made as of the 1st day of September 1999, between WFP TOWER
A CO. L.P., a Delaware limited partnership, having an address at c/o Brookfield
Financial Properties, Inc., Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Landlord"), and DOW XXXXX & COMPANY, INC., a Delaware corporation, having an
address at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H :
WHEREAS, by Office Lease dated October 21, 1983 (the "Original Lease"), as
amended by (i) First Amendment of Lease dated as of May 22, 1985, (ii) letter
agreement dated May 19, 1987, (iii) letter agreement dated as of December 1,
1988, (iv) Second Amendment of Lease dated May 11, 1994, (v) Third Amendment of
Lease dated as of December 1, 1995,(vi) Fourth Amendment of Lease (the "Fourth
Amendment") dated as of December 26, 1996, and (vii) Partial Termination and
Surrender Agreement and Fifth Amendment of Lease (the "Fifth Amendment") dated
as of February 25, 1999 (as so amended and partially terminated, the "Lease"),
Landlord (either directly or through its predecessor in interest) demised to
Tenant premises consisting of the 9th to 16th floors, inclusive, the Additional
Premises, the Elevator Premises, the Duct Premises, and the Lobby Premises in
the building known by the street address Tower A, One World Financial Center,
New York, New York (the "Building");
WHEREAS, the Fourth Amendment added to the Lobby Premises certain premises
collectively defined in the Fourth Amendment as the Additional Lobby Space,
consisting of the Lower Lobby A Space which contains 6,122 rentable square feet,
the Lower Lobby B Space which contains 496 rentable square feet and the
Additional Upper Lobby Space which contains 1,485 rentable square feet;
WHEREAS, pursuant to the Fifth Amendment, Tenant was released from its
obligations under the Lease with respect to, among other things, the Additional
Lobby Space, and the term of the Lease with respect to the Additional Lobby
Space was extinguished; and
WHEREAS, Tenant wishes to re-let from Landlord the Lower Lobby A Space and
Landlord is willing to lease the Lower Lobby A Space to Tenant, all upon the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration,
the mutual receipt and legal sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Defined Terms. All capitalized terms not otherwise defined in this
Agreement shall have the meanings ascribed to them in the Lease.
2. Lease of Lower Lobby A Space.
(a) Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, upon and subject to the terms, covenants, provisions and conditions of
this Agreement, that portion of the street level of the Building, substantially
as shown hatched and labeled "Lower Lobby A Space" (hereinafter, the "Lower
Lobby A Space") on the floor plan attached hereto as Exhibit A and made a part
hereof. The Lower Lobby A Space shall be conclusively deemed to contain 6,122
rentable square feet.
(b) The term of the lease of the Lower Lobby A Space shall commence on
the date of this Agreement (the "LLAS Commencement Date") and shall end at 11:59
p.m. on August 31, 2000 (subject to Tenant's right to extend the term of the
lease of the Lower Lobby A Space in accordance with the provisions of Section 4
of this Agreement, or on such earlier date upon which the term of the Lease
shall expire or be canceled or terminated pursuant to any of the conditions or
covenants of the Lease or pursuant to law. The "LLAS Expiration Date" shall mean
August 31, 2000 or, if the Lease shall sooner expire or be cancelled or
terminated or if the lease of the Lower Lobby A Space shall be extended, then it
shall mean such sooner or such later date.
(c) Effective as of the LLAS Commencement Date and until the LLAS
Expiration Date, all references in the Lease to the "Lobby Premises" shall
(except to the extent other terms are provided (i) in this Agreement with
respect to the Lower Lobby A Space or (ii) in the Third Amendment with respect
to the New Lobby Space), be deemed to refer collectively to the Lobby Premises
demised pursuant to the First Amendment, the New Lobby Space demised pursuant to
the Third Amendment and the Lower Lobby A Space.
3. Terms Applicable to Lower Lobby A Space. The lease of the Lower Lobby A
Space by Tenant shall be on all of the terms and conditions of the Lease, except
that:
(a) the term of the lease of the Lower Lobby A Space shall be as set
forth in Section 2 above;
(b) Landlord shall not be required to perform any work, to pay any
amount, to install any fixtures or equipment or to render any services to
prepare the Building or the Lower Lobby
-2-
A Space for Tenant's use or occupancy, and Tenant shall accept the Lower Lobby A
Space in its "as is" condition on the LLAS Commencement Date;
(c) Fixed Rent with respect to the Lower Lobby A Space shall be
payable from and after the LLAS Commencement Date to and including the LLAS
Expiration Date, at the annual rate of Sixty-One Thousand Two Hundred and Twenty
($61,220.00) Dollars, and during such period, Fixed Rent shall be payable at the
times and in the manner set forth in the Lease; provided, that the provisions of
Section 1.05(c) of the Original Lease shall not apply to Fixed Rent required to
be paid with respect to the Lower Lobby A Space;
(d) From and after the LLAS Commencement Date to and including the
LLAS Expiration Date, Tenant shall pay to Landlord PILOT Payments with respect
to the Lower Lobby A Space at the times and in the manner set forth in the
Lease, except that for purposes of the Lower Lobby A Space only (A) Section 3.02
of the Original Lease shall be deemed to read in its entirety as follows:
"Tenant shall pay for each PILOT Year during the term of the lease of the Lower
Lobby A Space an amount (herein called "PILOT Payment") equal to Tenant's
Proportionate PILOT Share of PILOT for such PILOT Year." (i.e., with respect to
the Lower Lobby A Space only, Tenant shall pay PILOT Payments on a net basis and
not as an escalation over the Base PILOT Year), and (B) the term "Tenant's
Proportionate PILOT Share" shall mean 0.4189%;
(e) From and after the LLAS Commencement Date to and including the
LLAS Expiration Date, Tenant shall pay to Landlord Operating Payments with
respect to the Lower Lobby A Space at the times and in the manner set forth in
the Lease, except that for purposes of the Lower Lobby A Space only (A) Section
3.08 of the Original Lease shall be deemed to read in its entirety as follows:
"Tenant shall pay for each Operating Year during the term of the lease of the
Lower Lobby A Space an amount equal to Tenant's Proportionate Operating Share of
the Operating Expenses for such Operating Year." (i.e., with respect to the
Lower Lobby A Space only, Tenant shall pay Operating Payments on a net basis and
not as an escalation over the Base Operating Year), and (B) the term "Tenant's
Proportionate Operating Share" shall mean 0.4189%;
(f) Tenant shall separately pay for electric energy supplied to the
Lower Lobby A Space from and after the LLAS Commencement Date in the amounts and
at the times set forth in Article 15 of the Original Lease. Notwithstanding the
provisions of Section 15.01(a) of the Original Lease to the contrary, such
electric energy shall be furnished to the Lower Lobby A Space through an
existing submeter or submeters and related equipment, (which is to be maintained
by Tenant, at Tenant's expense),
-3-
measuring the amount of electric energy furnished to the Lower Lobby A Space;
(g) Tenant shall pay to Landlord, upon the execution and delivery of
this Agreement by Tenant, the sum of $5,101.67 in respect of the monthly
installment of Fixed Rent in respect of the Lower Lobby A Space attributable to
the first full calendar month of the term of the lease of the Lower Lobby A
Space;
(h) Tenant shall use and occupy the Lower Lobby A Space solely for
administrative, executive and general offices, and for any other lawful uses
incidental thereto which are in keeping with the character, reputation and
appearance of a first-class office building, and for no other use or purpose.
(i) Tenant shall:
(i) occupy and use from the LLAS Commencement Date until the
LLAS Expiration Date, the entire Lower Lobby A Space in accordance with the
terms of the Lease, and conduct Tenant's business therein in a manner consistent
with the character, reputation and appearance of a first-class office building;
(ii) keep the display windows, dark, empty and clean;
(iii) not operate its business under the Lease so as to breach or
violate any other lease entered into by Tenant, or violate any contract entered
into by Tenant, or violate any judgment or decree imposed upon Tenant; and
(iv) redecorate the Lower Lobby A Space and refinish, renew
and/or replace the fixtures, furnishings, decorations and equipment therein from
time to time during the term of the lease of the Lower Lobby A Space, at
Tenant's expense, as in the reasonable judgment of Landlord may be necessary to
preserve and maintain the attractive appearance of the Lower Lobby A Space in
keeping with the general standard maintained for the Building;
(j) Tenant shall comply in all respects with Article 12 of the
Original Lease in performing any Alterations in the Lower Lobby A Space, and any
such Alterations shall also comply with respects, with the Tenant Design
Criteria. Without limiting the generality of the foregoing, Tenant shall, prior
to commencing any Alterations in the Lower Lobby A Space, submit to Landlord for
Landlord's approval in accordance with said Article 12, plans showing the design
concept, signage and layout of the Lower Lobby A Space. Tenant, at Tenant's
expense, shall construct any partitions necessary to separately demise the Lower
Lobby A Space
-4-
and shall install such soundproofing in the portions of the Lower Lobby A Space
to be used for mechanical equipment as Landlord may reasonably require. Further,
Tenant shall not disturb the existing built-in window screens and any
Alterations made by Tenant shall be built around such existing window screens;
and
(k) All provisions contained in Section 3(l) of the Fourth Amendment
relating to the Lobby Premises shall apply to the Lower Lobby A Space, except
that the reference in Section 3(l)(vi) to "the expiration or sooner termination
of the term of the Lease" shall, with respect to the Lower Lobby A Space only,
be deemed to refer to the LLAS Expiration Date. Section 3(m) of the Fourth
Amendment has been extinguished and is not applicable.
4. Option to Renew. (a) Tenant shall have one option to extend the term of
the lease of the Lower Lobby A Space for one four month period until December
31, 2000 (such additional period being hereafter referred to as the "LLAS
Extension Period"), provided that the LLAS Extension Period does not interfere
with Landlord's leasing plan for the Building, which determination Landlord
shall make in its sole discretion. Tenant's option so to extend may be exercised
only by Tenant's giving notice to that effect to Landlord not earlier than July
15, 2000 and not later than July 31, 2000, and time shall be of the essence with
respect to the exercise of such option. Landlord shall notify Tenant within 15
days ("Landlord's Rejection Period") after receipt of Tenant's notice duly
exercising its option to extend the term of the lease of the Lower Lobby A Space
that Landlord is rejecting Tenant's exercise because same interferes with
Landlord's leasing plan, in which event Tenant's exercise of its option shall be
null and void and of no force or effect. Subject to the provisions of subsection
(b) of this Section 4, upon the giving of such notice and upon the expiration of
Landlord's Rejection Period without Landlord having rejected Tenant's exercise
of its option, the term of the lease of the Lower Lobby A Space only shall be
extended for the LLAS Extension Period, without the execution of any further
instrument. Unless the context shall otherwise require, the LLAS Extension
Period shall be upon the same terms, covenants and conditions as shall be in
effect immediately prior to such extension, except that there shall be no right
or option to extend the term of the lease of the Lower Lobby A Space for any
period of time beyond December 31, 2000.
(b) The exercise of such option to extend the term of the lease with
respect to the Lower Lobby A Space at a time when an Event of Default shall have
occurred and be continuing, shall be void and of no force and effect, unless
Landlord shall elect otherwise. The termination of the Lease during the original
or any Extended Term shall also terminate and render void any option or right on
Tenant's part to extend the term of the lease with respect to the Lower Lobby A
Space, whether or not any such
-5-
option or right shall have been exercised; and nothing contained in this Section
4 shall prevent Landlord from exercising any right or option granted to or
reserved by Landlord in the Lease to terminate the Lease. This option may not be
severed from the Lease or separately sold, assigned or otherwise transferred.
(c) During the LLAS Extension Period, Fixed Rent, the PILOT Payments,
the Operating Payments and all other rent and charges payable with respect to
the Lower Lobby A Space shall continue and be the same as for the initial term
of the lease of the Lower Lobby A Space.
5. Restoration. Notwithstanding any provision contained in Article 12 of
the Lease to the contrary, prior to the LLAS Expiration Date, Tenant shall
remove all of its equipment, fixtures and furniture, and demolish its leasehold
improvements and remove all of Tenant's other personal property from the Lower
Lobby A Space and shall restore the Lower Lobby A Space to its condition on the
date that Tenant first took possession of the Lower Lobby A Space pursuant to
this Agreement to perform its initial Alterations therein. Notwithstanding the
foregoing, Tenant shall not remove or damage the existing built-in window
screens in the Lower Lobby A Space.
6. Broker. Each party hereto covenants, warrants and represents to the
other party that it had no conversations or negotiations with any broker
concerning the leasing of the Lower Lobby A Space. Each party hereto shall
indemnify and hold harmless the other party against and from any claims for any
brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, attorneys' fees and expenses, arising
out of any conversations or negotiations had by the indemnifying party with any
broker concerning the leasing of the Lower Lobby A Space.
7. Lender Consent. Landlord represents to Tenant that, as of the date of
this Agreement, the sole Superior Mortgage is held by The Sanwa Bank Limited,
New York Branch ("Sanwa") pursuant to a Consolidation, Amendment and Restatement
of Leasehold Mortgage, Assignment of Rents and Leases and Security Agreement
dated as of November 21, 1996. Landlord shall endeavor to obtain from Sanwa and
deliver to Tenant within thirty days from the execution and delivery by both
Landlord and Tenant of this Agreement a written instrument wherein Sanwa
consents to the execution and delivery of this Agreement (the "Consent"). If
Landlord does not deliver the Consent within such thirty day period, either
Landlord or Tenant shall have the right, by notice given to the other within ten
days thereafter and before said instrument is delivered, to terminate this
Agreement (but the Lease shall otherwise remain in full force and effect as
though this Agreement had never been executed and delivered).
-6-
8. Governing Laws. This Agreement shall be governed by and construed in
accordance with New York law without regard to conflicts of law principles.
9. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
10. No Other Changes. Except as amended by this Agreement, the Lease is
ratified and confirmed and remains in full force and effect. All references in
the Lease to "this lease" shall hereafter be deemed to refer to the Lease as
amended by this Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement
as of the day and year first above written.
LANDLORD:
WFP TOWER A CO. L.P.
By: WFP Tower A Co. G.P. Corp.,
General Partner
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx
President and Chief
Operating Officer
TENANT:
DOW XXXXX & COMPANY, INC.
By: /s/ Xxxxxx X. XxXxxxx
----------------------------------
Xxxxxx X. XxXxxxx
Treasurer
-7-
EXHIBIT A
ALL AREAS, CONDITIONS AND DIMENSIONS ARE APPROXIMATE
[LOGO] BROOKFIELD
[FLOORPLAN GRAPHIC APPEARS HERE]
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX
Street Level
Seventh Amendment of
Lease - September 1, 2000
SEVENTH AMENDMENT OF LEASE
THIS AGREEMENT (this "Agreement") is made as of the first day of September
2000 between WFP TOWER A CO. L.P., a Delaware limited partnership, having an
address at c/o Brookfield Financial Properties, Inc., Xxx Xxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Landlord"), and DOW XXXXX & COMPANY, INC., a Delaware
corporation, having an address at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Tenant").
W I T N E S S E T H :
WHEREAS, by Office Lease dated October 21, 1983 (the "Original Lease"), as
amended by (i) First Amendment of Lease dated as of May 22, 1985, (ii) letter
agreement dated May 19, 1987, (iii) letter agreement dated as of December 1,
1988, (iv) Second Amendment of Lease dated May 11, 1994, (v) Third Amendment of
Lease dated as of December 1, 1995, (vi) Fourth Amendment of Lease (the "Fourth
Amendment") dated as of December 26, 1996, (vii) Partial Termination and
Surrender Agreement and Fifth Amendment of Lease dated as of February 25, 1999,
and (viii) Sixth Amendment of Lease (the "Sixth Amendment") dated as of
September 1, 1999 (as so amended and partially terminated, the "Lease"),
Landlord (either directly or through its predecessor in interest) demised to
Tenant premises consisting of the 9th to 16th floors, inclusive, the Additional
Premises, the Elevator Premises, the Duct Premises, and the Lobby Premises in
the building known by the street address Tower A, One World Financial Center,
New York, New York (the "Building");
WHEREAS, the Fourth Amendment added to the Lobby Premises certain premises
collectively defined in the Fourth Amendment as the Additional Lobby Space,
consisting of (i) the Lower Lobby A Space, which Lower Lobby A Space contains
6,122 rentable square feet on the street level of the Building and which Lower
Lobby A Space is substantially shown hatched and labeled "Lower Lobby A Space"
on the floor plan attached as Exhibit A to the Sixth Amendment, (ii) the Lower
Lobby B Space which contains 496 rentable square feet and (iii) the Additional
Upper Lobby Space which contains 1,485 rentable square feet;
WHEREAS, pursuant to the Fifth Amendment, Tenant was released from its
obligations under the Lease with respect to, among other things, the Additional
Lobby Space, and the term of the Lease with respect to the Additional Lobby
Space was extinguished;
WHEREAS, pursuant to the Sixth Amendment, Tenant re-let the Lower Lobby A
Space from Landlord;
WHEREAS, pursuant to the terms of the Sixth Amendment, the term of the
lease of the Lower Lobby A space was scheduled to expire at 11:59 p.m. on August
31, 2000; and
WHEREAS, Landlord and Tenant desire to amend the Lease to (i) extend the
term of the lease to Tenant of the Lower Lobby A Space and (ii) otherwise amend
the provisions of the Lease, all on the terms and conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Defined Terms. All capitalized terms not otherwise defined in this
Agreement shall have the meanings ascribed to them in the Lease.
2. Extension of Term of Lease of Lower Lobby A Space. The term of the lease
of the Lower Lobby A Space is hereby extended for an additional term of four
years and nine months (the "LLAS Extended Term"), commencing on September 1,
2000 (which date shall hereafter be deemed to be the "LLAS Commencement Date"
under this Agreement and under the Lease, as amended by this Agreement) and
ending at 11:59 p.m. on May 31, 2005 or any earlier date upon which the term of
the lease of the Lower Lobby A Space shall expire or be canceled or terminated
pursuant to any of the conditions or covenants of the Lease (as amended by this
Agreement) or pursuant to law. The "LLAS Expiration Date", as such term is used
in this Agreement and in the Lease, as amended by this Agreement, shall
hereafter mean May 31, 2005 or any such earlier date upon which the term of the
lease of the Lower Lobby A Space shall expire or be canceled or terminated
pursuant to any of the conditions or covenants of the Lease (as amended by this
Agreement) or pursuant to law.
3. Fixed Rent and Other Payments. During the LLAS Extended Term, Tenant
shall continue to pay (a) Fixed Rent with respect to the Lower Lobby A Space at
the annual rate set forth in Section 3(c) of the Sixth Amendment (i.e., $61,220
per annum) and otherwise in accordance with the provisions of the Sixth
Amendment (it being agreed, without limiting the foregoing, that the provisions
of Section 1.05(c) of the Original Lease shall remain inapplicable to Fixed Rent
required to be paid with respect to the Lower Lobby A Space); and (b) the PILOT
Payments, the Operating Payments, the payments for electric energy supplied to
the Lower Lobby A Space and all other rent and charges payable
-2-
with respect to the Lower Lobby A Space in accordance with the existing
provisions of the Sixth Amendment.
4. Additional Terms Applicable to Lower Lobby A Space. The lease of the
Lower Lobby A Space by Tenant for the LLAS Extended Term shall otherwise be on
all of the existing terms and provisions contained in the Sixth Amendment,
except that:
(a) the term of the lease of the Lower Lobby A Space shall be the LLAS
Extended Term, as set forth in Section 2(a) above (it being agreed that from and
after the LLAS Commencement Date, all references in the Lease, as amended by
this Agreement, to the "term of the lease of the Lower Lobby A Space" shall be
deemed to mean the LLAS Extended Term);
(b) Section 4 of the Sixth Amendment is hereby deleted in its entirety
and shall be inapplicable during the LLAS Extended Term; and
(c) Tenant shall pay to Landlord, upon the execution and delivery of
this Agreement by Tenant, the sum of $5,101.67 to be applied by Landlord to the
monthly installment of Fixed Rent in respect of the Lower Lobby A Space
attributable to the calendar month September 2000.
5. Tenant Currently in Possession; Condition of Lower Lobby A Space. Tenant
hereby acknowledges that Tenant is currently in possession of the Lower Lobby A
Space (and shall continue in possession thereof during the LLAS Extended Term)
and agrees that the Lower Lobby A Space is in satisfactory condition on the date
hereof. Tenant hereby further agrees that Tenant shall accept the Lower Lobby A
Space in its "as is" condition on the LLAS Commencement Date and that Landlord
shall not be required to perform any work, to pay any amount, to install any
fixtures or equipment or to render any services to prepare the Building or the
Lower Lobby A Space for Tenant's use or occupancy.
6. Landlord's Termination Right. (a) Landlord shall have the option (the
"Termination Option"), in its sole discretion, to terminate the Lease with
respect to the lease of the Lower Lobby A Space only, subject to the terms of
this Agreement. The Termination Option shall be exercisable by written notice to
Tenant ("Landlord's Exercise Notice") given at any time following the LLAS
Commencement Date. If Landlord exercises the Termination Option, the Lease shall
terminate with respect to the lease of the Lower Lobby A Space only effective at
11:59 p.m. on the date which is one hundred and twenty (120) days after
Landlord's Exercise Notice shall have been given to Tenant (the "Termination
Date"), which Termination Date shall thereupon constitute the LLAS Expiration
Date under the Lease, as amended by this
-3-
Agreement, and Tenant shall pay all Fixed Rent, PILOT Payments, Operating
Payments, payments for electric energy supplied to the Lower Lobby A Space and
all other rent and charges payable with respect to the Lower Lobby A Space
through and including the Termination Date in accordance with this Agreement.
Such termination of the Lease with respect to the lease of the Lower Lobby A
Space shall not affect the lease of any other space to Tenant under the Lease,
and Landlord and Tenant hereby confirm and agree that the Lease shall thereafter
continue in full force and effect with respect to all space other than the Lower
Lobby A Space.
(b) Tenant shall surrender the Lower Lobby A Space to Landlord at or
prior to 11:59 p.m. on the Termination Date, vacant, broom-clean and free of all
tenancies, subtenancies and occupancies and otherwise in the condition required
under the terms and provisions of the Lease, including, without limitation,
Section 5 of the Sixth Amendment.
(c) From and after the Termination Date, Tenant shall remain liable to
Landlord for: (i) all claims against Landlord or Tenant, arising from, relating
to, or otherwise connected with, any labor and materials furnished or asserted
to have been furnished to Tenant or anyone claiming by, through or under Tenant
with respect to the Lower Lobby A Space prior to the surrender thereof to
Landlord, except to the extent any such claim shall have arisen directly from
the wilful misconduct or gross negligence of Landlord; (ii) all claims by
Landlord against Tenant for contribution or indemnification or both arising out
of third-party claims against Landlord to the extent provided for in the Lease;
(iii) all obligations and liabilities of Tenant with respect to the Lower Lobby
A Space accruing prior to the surrender thereof to Landlord; (iv) all other
claims, liabilities, injuries, losses, damages, costs and expenses incurred by
or made against Landlord or Tenant, arising from, relating to, or otherwise
connected with, circumstances, actions or omissions that occurred in the Lower
Lobby A Space prior to the surrender thereof to Landlord, except to the extent
any such claim, liability, loss, damage, cost or expense shall have arisen
directly from the wilful misconduct or gross negligence of Landlord; and (v) all
other obligations of Tenant with respect to the Lower Lobby A Space expressly
provided in this Agreement or the Lease, as amended by this Agreement, to
survive the termination or expiration hereof or thereof. Tenant's liability
under clauses (i) through (v) of this Section 6(c) shall include, without
limitation, reasonable attorneys' fees and disbursements (and reasonable
attorneys' fees and disbursements incurred in establishing liability under this
Section 6(c) and in collecting amounts payable hereunder). Tenant's liability
under this Section 6(c) shall survive the Termination Date and such surrender of
the Lower Lobby A Space to Landlord.
-4-
(d) If Tenant shall fail to surrender the Lower Lobby A Space to
Landlord in the condition required under, and otherwise in accordance with,
Section 6(b) above, then (i) such failure by Tenant shall constitute an Event of
Default under the Lease, entitling Landlord to exercise any and all of
Landlord's rights and remedies under the Lease, at law and in equity with
respect thereto; and (ii) without limiting anything in clause (i) above, for the
period commencing on the Termination Date and ending on the date that Tenant
actually surrenders the Lower Lobby A Space to Landlord in the condition
required under, and otherwise in accordance with Section 6(b) above, Tenant, at
the election of Landlord, shall be deemed to be occupying the Lower Lobby A
Space as a tenant from month-to-month, at a monthly rental equal to two hundred
percent (200%) of all Fixed Rent, PILOT Payments, Operating Payments, payments
for electric energy supplied to the Lower Lobby A Space and all other rent and
charges payable with respect to the Lower Lobby A Space payable during the last
full calendar month immediately preceding (A) the Termination Date or (B) the
date of Landlord's Exercise Notice (whichever is greater), subject to all of the
other conditions, provisions and obligations of the Lease, as amended by this
Agreement, insofar as the same are applicable to a month-to-month tenancy. In
addition, Tenant shall indemnify, defend and hold harmless Landlord for, from
and against all loss, costs, expenses, penalties, liability, damages and claims,
including, without limitation, attorneys' fees and disbursements (and attorneys'
fees and disbursements incurred in establishing liability under this Section
6(d) and in collecting amounts payable hereunder), incurred by, or assessed
against, Landlord arising from Tenant's failure to surrender the Lower Lobby A
Space to Landlord on or prior to the Termination Date in the condition required
under, and otherwise in accordance with, Section 6(b) above, including, without
limitation, (x) any rent payable by, and any loss, cost and damages, including
lost profits, claimed by, any prospective tenant of the Lower Lobby A Space or
any portion thereof, and (y) Landlord's damages as a result of such prospective
tenant rescinding or refusing to enter into the prospective lease of the Lower
Lobby A Space or any portion thereof by reason of such failure by Tenant to
timely surrender the Lower Lobby A Space. Tenant's liability under this Section
6(d) shall survive the Termination Date and such surrender of the Lower Lobby A
Space to Landlord.
7. Broker. Each party hereto covenants, warrants and represents to the
other party that it had no conversations or negotiations with any broker
concerning the extension of the lease of the Lower Lobby A Space to Tenant. Each
party hereto shall indemnify and hold harmless the other party against and from
any claims for any brokerage commissions and all costs, expenses and liabilities
in connection therewith, including, without limitation, attorneys' fees and
expenses, arising out of
-5-
any conversations or negotiations had by the indemnifying party with any broker
concerning the extension of the lease of the Lower Lobby A Space.
8. Lender Consent. Landlord represents to Tenant that, as of the date of
this Agreement, the sole Superior Mortgage is held by The Sanwa Bank Limited,
New York Branch ("Sanwa") pursuant to a Consolidation, Amendment and Restatement
of Leasehold Mortgage, Assignment of Rents and Leases and Security Agreement
dated as of November 21, 1996. Landlord shall use reasonable efforts to obtain
from Sanwa and deliver to Tenant within thirty (30) days after the execution and
delivery by both Landlord and Tenant of this Agreement a written instrument
wherein Sanwa consents to the execution and delivery of this Agreement (the
"Consent"). If Landlord does not deliver the Consent within such thirty (30) day
period, then either Landlord or Tenant shall have the right, by notice given to
the other within ten (10) days thereafter and before the Consent is delivered,
to terminate this Agreement (but the Lease shall otherwise remain in full force
and effect as though this Agreement had never been executed and delivered). As
used in this Section 8, "reasonable efforts" shall mean that Landlord shall make
the request for the Consent to Sanwa in writing and make two (2) follow-up
telephone calls to Sanwa.
9. Governing Law. This Agreement shall be governed by, and construed in
accordance with, New York law without regard to conflict of laws principles.
10. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
11. Not Binding Offer. This Agreement is offered for signature by Tenant it
is understood that this Agreement shall not be binding upon Landlord unless and
until Landlord shall have executed and delivered to Tenant a fully executed copy
of this Agreement.
12. No Oral Modification. This Agreement may not be changed or terminated
orally, but only by an agreement in writing signed by Landlord and Tenant.
13. Ratification; No Other Changes. Except as amended by this Agreement,
the Lease is ratified and confirmed and remains in full force and effect. All
references in the Lease to "this lease" shall hereafter be deemed to refer to
the Lease as amended by this Agreement.
-6-
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement
as of the day and year first above written.
LANDLORD:
WFP TOWER A CO. L.P.
By: WFP Tower A Co. G.P. Corp.,
General Partner
By: _________________________________
Xxxxxxx X. Xxxxx
President and Chief
Operating Officer
TENANT:
DOW XXXXX & COMPANY, INC.
By: _________________________________
Name:
Title:
-7-
Eighth Amendment of
Lease - July 12, 2002
EIGHTH AMENDMENT OF LEASE
THIS AGREEMENT (this "Agreement") is made as of the 12/th/ day of July 2002
between WFP TOWER A CO. L.P., a Delaware limited partnership, having an address
at c/o Brookfield Financial Properties, Inc., Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Landlord"), and DOW XXXXX & COMPANY, INC., a Delaware corporation,
having an address at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Tenant").
W I T N E S S E T H :
WHEREAS, by Office Lease dated October 21, 1983, as amended by (i) First
Amendment of Lease dated as of May 22, 1985, (ii) letter agreement dated May 19,
1987, (iii) letter agreement dated as of December 1, 1988, (iv) Second Amendment
of Lease dated May 11, 1994, (v) Third Amendment of Lease dated as of December
1, 1995, (vi) Fourth Amendment of Lease dated as of December 26, 1996, (vii)
Partial Termination and Surrender Agreement and Fifth Amendment of Lease dated
as of February 25, 1999, (viii) Sixth Amendment of Lease dated as of September
1, 1999 and (ix) Seventh Amendment of Lease dated as of September 1, 2000 (as so
amended and partially terminated, the "Lease"), Landlord (either directly or
through its predecessor in interest) demised to Tenant premises consisting of
the 9/th/ to 16/th/ floors, inclusive, the Additional Premises, the Elevator
Premises, the Duct Premises, and the Lobby Premises in the building known by the
street address Tower A, One World Financial Center, New York, New York (the
"Building");
WHEREAS, due to the events of September 11, 2001, the Building and the
Premises were rendered untenantable within the meaning of Article 22 of the
Lease; and
WHEREAS, Landlord and Tenant desire to amend the Lease to (i) provide for
Tenant, rather than Landlord, to repair the damage to and restore and rebuild
the Premises and (ii) otherwise amend the provisions of the Lease, all on the
terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Defined Terms. All capitalized terms not otherwise defined in this
Agreement shall have the meanings ascribed to them in the Lease.
2. Restoration of Premises. (a) Notwithstanding anything to the contrary
contained in Article 22 of the Lease, Tenant and not Landlord, at Tenant's sole
cost and expense (subject to the Restoration Contribution, as set forth in this
Section 2), shall repair the damage to and restore and rebuild the Premises in
accordance with the provisions of the Lease and the Scope of Work (the "Scope of
Work") annexed to this Agreement as Exhibit A (such repair, restoration and
rebuilding being referred to as "Tenant's Restoration Work"), provided that
Tenant shall not be responsible to perform the Remediation Program (as
hereinafter defined). Landlord has diligently pursued to completion the
Remediation Program. Tenant's Restoration Work shall be performed in accordance
with the alteration provisions of Article 12 of the Lease. Tenant acknowledges
that, except as otherwise provided in this Agreement, Landlord has no further
obligation to perform any restoration work under the Lease with respect to the
Premises. Nothing contained in this Agreement shall affect Landlord's obligation
to repair, restore and rebuild areas of the Building outside of the Premises or
Tenant's obligation to repair and restore Tenant's Property, all in accordance
with the provisions of the Lease. The "Remediation Program" shall mean
Landlord's fourteen-step remediation and testing program, a description of which
is annexed as Exhibit B, pursuant to which Landlord has performed and will
perform environmental cleanup of the Building so that the air quality in the
Building and in the Premises has met all applicable legal standards necessary to
enable Tenant to safely commence Tenant's Restoration Work, in the opinion of
Landlord's environmental consultant.
(b) In consideration of Tenant's performance of Tenant's Restoration
Work in accordance with the provisions of the Lease and the Scope of Work,
Landlord shall pay up to but not in excess of the sum of $3,667,540.75 (the
"Restoration Contribution") for Tenant's actual costs of performing or
installing in the Premises Tenant's Restoration Work. For purposes of the
preceding sentence, actual costs of performing or installing Tenant's
Restoration Work shall include all construction costs, including so-called
"soft" construction costs, such as costs and fees for design and engineering and
Tenant's professional and construction consultants ("Soft Costs"). Tenant shall
submit to Landlord a line item budget setting forth estimated construction costs
and Soft Costs prior to commencement of Tenant's Restoration Work. Provided that
there shall not then be existing a monetary or material non-monetary default
which continues beyond notice and the expiration of any applicable grace period
under the provisions of the Lease, Landlord shall pay for such costs by paying
the contractors, suppliers or consultants designated by Tenant or by reimbursing
Tenant (at Tenant's option) from time to time during the progress of Tenant's
Restoration Work (but not more than once per month) within 30 days after receipt
from Tenant of (i) supporting documentation therefor approved by Tenant,
accompanied by a certification of the architect supervising the work (for work
covered by such architect's design), stating that the portion of the work for
which Tenant is applying for payment has been completed substantially in
accordance with the Scope of Work and with any plans and specifications approved
by Landlord, (ii) itemized bills for labor and materials constituting portions
of such work submitted by the contractors, suppliers or consultants of the
services or materials rendered (and where Tenant elects to be reimbursed, such
bills shall have been marked "paid" by the contractor, supplier or consultant),
and (iii) waivers of liens evidencing the payment for any prior work performed
and materials supplied for which Tenant previously applied for payment, executed
and acknowledged by the contractors, suppliers and consultants which are
entitled by statute to file mechanics liens. Without limiting the generality of
the preceding sentence, a material non-monetary default shall include any
default by Tenant in its obligations under this Agreement, including any default
in the performance of any Tenant's Restoration Work. Any amounts withheld due to
any default by Tenant shall be paid to Tenant in accordance with the terms of
this Paragraph 2(b) when such default (and any other defaults by Tenant) has
been cured. If Tenant elects to perform work to the Premises which is greater in
scope than the Scope of Work and which results in the cost of Tenant's
Restoration Work exceeding the Restoration Allowance, Landlord shall have no
obligation to reimburse Tenant for such excess costs.
2
(c) Tenant's obligation to pay the Fixed Rent and Additional Charges
under the Lease shall commence on July 8, 2002 (the "Rent Recommencement Date").
(d) If, upon completion of Tenant's Restoration Work in accordance with
the provisions of this Section 2 and the complete payment of all of the costs
and expenses thereof, there shall remain any unused portion of the Restoration
Contribution, then, provided there shall not then be existing a monetary or
material non-monetary default which continues beyond notice and the expiration
of any applicable grace period under the provisions of the Lease, the amount of
such unused portion of the Restoration Contribution shall be applied as a credit
against the next accruing installment(s) of Fixed Rent payable by Tenant under
the Lease. If there shall then be any such default, such unused portion shall be
applied after such default (and any other defaults by Tenant) has been cured.
(e) Landlord and Tenant hereby acknowledge that certain dust was found
on or about May 17, 2002 on floors 9 through 11 during the removal of ductwork
located on such floors. Without reaching any conclusion regarding the nature of
the dust, Landlord and Tenant further agree that Tenant, at Tenant's sole cost
and expense, shall arrange for the removal and remediation of such dust and that
such removal and remediation shall delay Tenant's restoration of the Premises.
Therefore, notwithstanding anything to the contrary contained herein, Landlord
shall pay up to, but not in excess of, the sum of One Hundred Fifty Thousand and
00/100 Dollars ($150,000.00) (the "Additional Contribution") for the actual
difference in cost incurred by Tenant between the original cost (the "Original
Cost") of restoring the Premises on the eight week schedule beginning May 13,
2002 and the cost (the "Expedited Cost") of restoring the Premises on an
expedited basis within the same eight-week period given the interruption of the
restoration on account of the removal and remediation set forth in the preceding
sentence. The Additional Contribution shall be paid in accordance with the terms
and conditions set forth in Paragraph 2(b) above for the payment of the
Restoration Contribution, provided, however, that Tenant shall be required only
to provide evidence reasonably satisfactory to Landlord of the Expedited Cost
(i.e., invoices from contractors and/or material suppliers showing increased
cost(s) as a result of the expedited schedule). Notwithstanding the foregoing,
if, upon completion of Tenant's Restoration Work in accordance with the
provisions of this Section 2 and complete payment of all of the costs and
expenses attributable to the difference between the Original Cost and the
Expedited Cost, there shall remain any unused portion of the Additional
Contribution, Tenant shall have no right to any unused portion of the Additional
Contribution.
3. Lender Consent. Landlord represents to Tenant that, as of the date of
this Agreement, the sole Superior Mortgage is held by UFJ Bank Limited
(successor by merger to The Sanwa Bank Limited), New York Branch ("UFJ")
pursuant to a Consolidation, Amendment and Restatement of Leasehold Mortgage,
Assignment of Rents and Leases and Security Agreement dated as of November 21,
1996. Landlord shall use reasonable efforts to obtain from UFJ and deliver to
Tenant within thirty (30) days after the execution and delivery by both Landlord
and Tenant of this Agreement a written instrument wherein UFJ consents to the
execution and delivery of this Agreement (the "Consent"). If Landlord does not
deliver the Consent within such thirty (30) day period, then either Landlord or
Tenant shall have the right, by notice given to the other within ten (10) days
thereafter and before the Consent is delivered, to terminate this Agreement (but
the Lease shall otherwise remain in full force and effect as though this
Agreement had never been executed and delivered). As used in this Section 3,
"reasonable
3
efforts" shall mean that Landlord shall make the request for the Consent to UFJ
in writing and make two (2) follow-up telephone calls to UFJ.
4. Governing Law. This Agreement shall be governed by, and construed in
accordance with, New York law without regard to conflict of laws principles.
5. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
6. Not Binding Offer. This Agreement is offered for signature by Tenant. It
is understood that this Agreement shall not be binding upon Landlord or Tenant
unless and until Landlord or Tenant shall have executed and delivered to each
other a fully executed copy of this Agreement.
7. No Oral Modification. This Agreement may not be changed or terminated
orally, but only by an agreement in writing signed by Landlord and Tenant.
8. Ratification; No Other Changes. Except as amended by this Agreement, the
Lease is ratified and confirmed and remains in full force and effect. All
references in the Lease to "this lease" shall hereafter be deemed to refer to
the Lease as amended by this Agreement. The provisions of this Agreement shall
apply only to the restoration of the Premises and the completion of all
environmental remediation work required by law necessitated by the events of
September 11, 2001 and not to any subsequent damage or destruction to the
Building or the Premises or any subsequent instance of the Premises not being in
compliance with environmental laws, with respect to which the applicable
provisions of the Lease (as unamended by this Agreement) shall continue to
apply.
4
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement
as of the day and year first above written.
LANDLORD:
WFP TOWER A CO. L.P.
By: WFP Tower A Co. G.P. Corp.,
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Xxxxxxxx X. Xxxxxx
Senior Vice President
Director of Leasing
TENANT:
DOW XXXXX & COMPANY, INC.
By: /s/ Xxx X. Xxxxx
----------------
Name: Xxx X. Xxxxx
Title: Vice President,
General Services
5
Exhibit A
Scope of Work
As of May 30, 2002
DOW XXXXX & COMPANY
Floors 9-16
Scope of Work
Dow/X.X.
Xxxxxxxxxx Agreed
Dow Xxxxx Xxxxxxx Upon
Amount Amount Amount Comments
-------------------------------------------------------------------------
Xxxx Xxxxxx Scope of Work $3,017,000.00 $3,017,000.00 $3,017,000.00
Agreed Upon Contingency 150,000.00 150,000.00 150,000.00
Total Scope Agreed prior to 5/6/02: $3,167,000.00 $3,167,000.00 $3,167,000.00
Additional Items Agreed to at 5/6/02 Meeting:
Dow seeking0new grid. CL
willing to consider 50%
1) Ceiling Grid $ 234,000.00 $ 40,000.00 $ 185,000.00 of amount.
CL will concede
$3.00/sq. ft. even
though Xxxxxx says
2) Sheetrock removal for mold covering 1,300 sq. ft. 3,900.00 3,900.00 3,900.00 $2.75/sq. ft.
Dow says $250.00/Box. CL
has quote from vendor
3) 275 Leviton Boxes 68,750.00 27,387.25 50,000.00 for $99.50/Box.
Dow and CL agree on
4) 175 Floor Tiles 5,195.75 5,195.75 5,195.75 $29.69/Tile.
Dow and CL agree on
5) 35 Sensor Switches 7,875.00 7,875.00 7,875.00 $225.00/Switch.
7,800.00 Dow and CL agree on
6) 12 VMI Panels 7,800.00 7,800.00 $650.00/Panel.
This is Dow Xxxxx' cost
for providing their
technical personnel when
the sound attenuator
issue was being
7) Generator Costs 17,040.00 17,040.00 17,040.00 addressed.
Dow and CL agree on
8) Wall Paper Covering 194 square yards 8,730.00 8,730.00 8,730.00 $45.00/square yard.
215,000.00 Dow and CL agree on
9) 2x2 Light Fixtures 300,000.00 203,641.50 $215,000.00.
Total Amount of Additional Items: 653,290.75 321,569.50 500,540.75
------------- ------------- -------------
Total Scope of Work: $3,820,290.75 $3,488,599.50 $3,667,540.75
In addition to the Scope of Work, an
additional Construction Allowance has [1]
been agreed to: $ 150,000.00 $ 150,000.00 $ 150,000.00
FOOTNOTES:
[1] This is allowance for invoices attributable to additional manpower to bring
Structure Tone back on schedule for the 8 week buildout period (May 13 -
July 8, 2002).
Exhibit B
Remediation Program
XXXXXXX ENVIRONMENTAL GROUP
ENVIRONMENTAL CONSULTING & LAB SERVICES
0000 Xxxxx 00 Xxxx
XXXXX, XXX XXXXXX 00000
(000) 000-0000
Fax (000) 000-0000
The 14-Step Remediation Process included the following:
1. Removal of Tenant Contents* under the direction of Dow Xxxxx/Detail
Associates.
2. Removal of Special Items and Partitions including VMI Panels, De-mountable
Partitions, and Miscellaneous Furnishings/Office Landscapes.
3. Ceiling Tile Removal utilizing wet methods.
4. Ceiling Plenum Cleaning including all horizontal surfaces such as I-Beams,
pipe conduits, light fixtures, ductwork and ceiling grid.
5. Encapsulation of the Ceiling using a fire proofing manufacturers approved
product.
6. Cleaning and Encapsulation of Column Bases within the designated "Red
Zone" areas as defined by Detail Associates.
7. Carpet Cleaning using HEPA vacuum and steam cleaning techniques.
8. Carpet tiles were bagged and removed from floors.
9. Cleaning all areas below raised flooring utilizing HEPA vacuum and wet
wiping methods.
10. Core area cleaning including Mechanical Electrical Rooms (MER's), closets,
elevator lobbies and bathrooms.
11. HVAC Cleaning and Encapsulation including Brookfield and Dow Xxxxx
ductwork and air handling unites.
12. Carpet Mastic Removal
13. Cleaning of all Horizontal and Vertical Surfaces below the Ceiling Grid
utilizing HEPA vacuum and wet wipe methods.
14. Final Visual Inspection followed by final aggressive TEM Air Sampling
based on AHERA protocol as well as an Environmental Health Risk
Assessment.
*Refer to attached Protocol for the Removal of Tenant's Contents dated 1/7/2002.
In additional to the 14-Step Remediation Process the following tasks were
performed:
. Steam Cleaning of the Raised Floor
. Hand Cleaning of HVAC system (including Brookfield and Dow Xxxxx
systems) to comply with Dow Xxxxx ASTM 5755 Standard of less than
10,000 structures.
. Cleaning of Perimeter window diffusers and replacement of associated
flex duct.
. Remediation of visible mold utilizing wet methods, negative air and
containment methods.
Protocol for cleaning of Tenant-owned furniture and contents
One World Financial Center
Many tenant owned items on floors were exposed to dust, which may contain fine
asbestos fibers following the aftermath of the World Trade Center collapse. The
building's cleaning contractors performed an initial cleaning on the tenant
furniture and readily accessible belongings.
Testing has determined that the furnishings require special detailed cleaning.
This cleaning is the responsibility of the tenants. The building will be
performing inspections and/or testing of these tenant items after they have been
cleaned. Following is the testing criteria to be following and some suggested
methodologies.
Recommended Cleaning Procedures
These procedures are recommended, but not required. Some items may not be able
to be completely cleaned and decontaminated. They may require disposal.
Hard furniture and non-porous items: Clean all surfaces with HEPA filtered
vacuums and wet wiped.
Porous furniture and contents such as chairs and fabric panels: Clean with HEPA
vacuums and clean with stream extraction or other deep cleaning methods.
Papers, files and books: Clean with HEPA vacuums.
Note: There are many specialized cleaning and disaster recovery contractors
available to perform this type of work. The building can provide a list
of approved contractors.
Electric equipment: Open and clean and HEPA vacuums while agitating interior
components with anti-static brushes. This procedure must be done within a clean
room if done on-site. Xxxxxxx Environmental, the building's environmental
consultant, must approve the proposed set-up of this room prior to use.
Monitoring of Cleaning Procedures
Brookfield's environmental consultant will monitor the cleaning of tenant items
to ensure that contamination form the tenant spaces does not disperse to other
parts of the building. This monitoring will include approval of the means and
methods that the tenant contractors propose to use for the cleaning operation.
In addition, Brookfield's environmental consultant will perform quality
assurance and air monitoring during the process.
Clearance Criteria
In order for the building to be assured of the cleanliness of tenant owned
items, the building will implement a testing program after these items have been
cleaned.
General area testing: The building will perform air sampling using aggressive
methods (agitation of air using left blower) with the samples being analyzed by
transmission electron microscopy (TEM) utilizing AHERA Protocol. Sample results
must pass City of New York (Title 15, Chapter 1, Rules of the City of New York)
clearance criteria.
Hard Furniture and Furniture Systems: The building consultant will perform a
visual and tactile inspection including disassembly of a percentage of hard
furnishings and fixtures to inspect for visible accumulation of dust within the
systems. The inspection shall reveal no visible accumulation of dust.
Porous Furniture and contents such as chairs and fabric panels.: The building
consultant following visual inspection, may choose to vacuum the surfaces on ten
(10%) percent of these items and submit the dust for Transmission Electron
Microscope Method for Identifying and Quantifying Asbestos in non-friable
organically bound build samples NYS ELAP Method 198.4 (Xxxxxxxxx Method)
Files, books, etc.: Same as above.
Disposal Criteria
All items must be cleaned and/or packaged in plastic and moved out of the
building in such a way as to prevent the contamination of other parts of the
building.
These items contain less than 1 percent asbestos content and can therefore be
disposed as conventional waste.
Date: ____________________________
________________________________ _______________________________________
Xxxxx Xxxxxxx President Xxxxxxx X. Xxxxxxxx, Principal
Xxxxxxx Environmental Entek Environmental & Technical
Services, Inc.
ADDENDUM
Protocol for cleaning of Tenant-owned furniture and contents
One World Financial Center
Contractor Compliance
This building will be performing inspections and/or testing of tenant items
during and after they have been cleaned. The responsibility of updating the
building on work progression falls directly on the contractor. In order to
fulfill this responsibility, the contractor must have representation at daily
meetings and issue a written tentative weekly schedule no later than Noon each
Monday. Failure to comply with these terms will result in complete work stoppage
until these terms are met.
