EXHIBIT 10.8
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SUBLEASE
Between
CS FIRST BOSTON CORPORATION,
Sublessor
And
XXXXXXX XXXXXXX, INC. D/B/A
AMERICAN HOME MORTGAGE,
Subtenant
Premises:
The Entire 28th Floor
at Tower 49
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Dated: As of February 15, 1996
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TABLE OF CONTENTS
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SECTION PAGE
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1. DEMISE AND TERM......................................................... 1
2. SUBORDINATE TO XXXXXXXXX................................................ 2
3. INCORPORATION BY REFERENCE.............................................. 2
4. PERFORMANCE BY SUBLESSOR................................................ 4
5. NO BREACH OF XXXXXXXXX.................................................. 6
6. NO PRIVITY OF ESTATE.................................................... 6
7. INDEMNITY............................................................... 6
8. WAIVER OF SUBROGATION................................................... 7
9. FIXED RENT.............................................................. 7
10. LATE CHARGES............................................................ 8
11. ADDITIONAL CHARGES...................................................... 8
12. USE..................................................................... 10
13. CONDITION OF SUBLEASED PREMISES......................................... 10
14. CONSENTS AND APPROVALS.................................................. 11
15. NOTICES................................................................. 12
16. TERMINATION OF XXXXXXXXX................................................ 12
17. ASSIGNMENT AND SUBLETTING............................................... 13
18. INSURANCE............................................................... 15
19. ESTOPPEL CERTIFICATES................................................... 16
20. ALTERATIONS............................................................. 16
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SECTION PAGE
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21. RIGHT TO CURE SUBTENANT'S DEFAULTS....................................... 16
22. BROKERAGE................................................................ 17
23. WAIVER OF JURY TRIAL AND RIGHT TO COUNTERCLAIM........................... 17
24. NO WAIVER................................................................ 17
25. COMPLETE AGREEMENT....................................................... 17
26. SUCCESSORS AND ASSIGNS................................................... 17
27. INTERPRETATION........................................................... 18
28. WAIVER OF IMMUNITY AND CONSENT TO JURISDICTION........................... 18
29. SECURITY DEPOSIT......................................................... 18
30. CLEANING AND OTHER SERVICES.............................................. 20
31. SUBTENANT ELECTRICITY.................................................... 21
32. ENVIRONMENTAL MATTERS.................................................... 22
33. QUIET ENJOYMENT.......................................................... 22
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
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SUBLEASE
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THIS SUBLEASE (this "Sublease"), dated as of the ____ day of
February, 1996, by and between CS FIRST BOSTON CORPORATION, a Massachusetts
corporation having an address at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(herein called "Sublessor"), and XXXXXXX XXXXXXX, INC., a New York corporation,
doing business as American Home Mortgage, having an address at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (herein called "Subtenant").
WITNESSETH:
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WHEREAS, by lease dated May 17, 1984 by and between Solstead
Associates, a New York limited partnership, predecessor in interest to Kato Real
Estate Corporation (which latter entity and any subsequent landlord under the
Xxxxxxxxx are hereinafter collectively referred to as "Overlandlord"), as
landlord, and Sublessor, as tenant, as amended by that certain First
Modification of Lease Agreement, dated as of September 15, 1984 (the "First
Modification"), that certain Second Modification of Lease Agreement, dated as of
December 16, 1986 (the "Second Modification"), that certain Third Modification
of Lease Agreement, dated as of September 1, 1990 (the "Third Modification"),
and that certain First Supplement to Lease, dated as of July 29, 1994 (the
"First Supplement"; as so amended, the "Xxxxxxxxx"), Overlandlord leased to
Sublessor certain space located in the building more particularly described in
the Xxxxxxxxx and known as Tower 49, and having the street address 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building"); and
WHEREAS, Subtenant desires to lease from Sublessor certain space
consisting of the entire twenty-eighth (28th) floor of the Building, all as more
particularly described herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. DEMISE AND TERM. (a) Subject to the terms of this Sublease,
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Sublessor hereby leases to Subtenant, and Subtenant hereby hires from Sublessor,
those certain premises (herein called the "Subleased Premises") consisting of
the entire twenty-eighth (28th) floor of the Building, as more particularly
identified on Exhibit A annexed hereto and made a part hereof, containing those
items of office furniture presently located in the Subleased Premises which are
identified on Exhibit C annexed hereto and made a part hereof (the "Furniture").
The term of this Sublease shall be the period commencing on February 15, 1996
(the "Commencement Date") and expiring at midnight on September 13, 1999 (the
"Expiration Date"), unless sooner terminated as herein provided. In the event
that Subtenant shall occupy any portion of the Subleased Premises prior to the
Commencement Date, Subtenant agrees to be bound by all of the terms and
conditions of this Sublease with
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respect to such use and occupancy. Sublessor and Subtenant shall, upon the
request of either such party, promptly execute and deliver a statement setting
forth the Commencement Date.
(b) Subtenant expressly waives any right to rescind this Sublease
under Section 223-a of the New York Real Property Law ("Section 223-a") or any
other present or future law of similar import then in effect with respect to all
or any portion of the Subleased Premises, and further expressly waives any right
to recover any damages which may result from Sublessor's failure or inability to
deliver possession of all or any portion of the Subleased Premises on the
Commencement Date. Subtenant agrees that the provisions of this Section are
intended to constitute "an express provision to the contrary" within the meaning
of Section 223-a.
2. SUBORDINATE TO XXXXXXXXX. This Sublease is and shall be subject
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and subordinate to the Xxxxxxxxx, and to the matters to which the Xxxxxxxxx is
or shall be subject and subordinate. A true and correct copy of the Xxxxxxxxx
(with certain deletions of rental information set forth therein) (a) has been
delivered to and examined by Subtenant, (b) is annexed hereto as Exhibit B, and
(c) is made a part hereof.
3. INCORPORATION BY REFERENCE. (a) The terms, covenants and
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conditions of the Xxxxxxxxx are incorporated herein by reference so that, except
to the extent that they are modified by the provisions of this Sublease for the
purpose of incorporation by reference, each and every term, covenant and
condition of the Xxxxxxxxx binding or inuring to the benefit of Overlandlord
with respect to the Subleased Premises shall, in respect of this Sublease, bind
or inure to the benefit of Sublessor, and each and every term, covenant and
condition of the Xxxxxxxxx binding or inuring to the benefit of the tenant
thereunder with respect to the Subleased Premises shall, in respect of this
Sublease, bind or inure to the benefit of Subtenant with the same force and
effect as if such terms, covenants and conditions were completely set forth in
this Sublease, except to the extent that any such terms, covenants or conditions
by their nature or intent relate to premises other than the Subleased Premises,
and as if (i) references in the Xxxxxxxxx to the "Premises" shall be deemed to
refer to the "Subleased Premises" hereunder, (ii) references in the Xxxxxxxxx to
"Landlord" and to "Tenant" shall be deemed to refer to "Sublessor" and
"Subtenant" hereunder, respectively, (iii) references in the Xxxxxxxxx to the
"Fixed Rent" and "Additional Rent" shall be deemed to refer to the "Fixed Rent"
and "Additional Charges" hereunder, respectively, and (iv) references in the
Xxxxxxxxx to the "Term" shall be deemed to refer to the "term of this Sublease".
It is further understood and agreed that where reference is made in the
Xxxxxxxxx to the "Lease" the same shall be deemed to refer to this "Sublease".
The time limits contained in the Xxxxxxxxx for the giving of notices, making of
demands or performing of any act, condition or covenant on the part of the
tenant thereunder, or for the exercise by the tenant thereunder of any right,
remedy or option, are changed for the purposes of incorporation herein by
reference by shortening the same in each instance by three (3) days, so that in
each instance Subtenant shall have three (3) days less time to observe or
perform hereunder than Sublessor has as the tenant under the Xxxxxxxxx. If the
Xxxxxxxxx, as incorporated herein, only allows five (5) days or less for
Subtenant to perform
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any act or to correct any failure relating to the Subleased Premises or this
Sublease, then. except in the event of an emergency, Subtenant shall
nevertheless be allowed three (3) days to perform any such act or to correct any
such failure.
(b) The following provisions of the Xxxxxxxxx and Exhibits annexed
thereto shall be deemed deleted for the purposes of incorporation by reference
in this Sublease:
the preamble; Article 1; Section 2.02(r) (references to Exhibits B, D, E, G
and H only); Section 3.01; Article 4; Section 5.02(a)(iv) (reference to
Work Letter in the second sentence only); Section 5.06 (reference to
Landlord's Work in the first sentence only); Section 6.01(a); Section
6.01(b); Section 6.01(f); Section 6.01(h); Section 6.02(e); Section 8.03
(amounts of insurance only); Section 10.01 (reference to Article 4, Exhibit
D and right to make "structural changes" in first sentence only); Section
10.08; Section 12.01 (second, third and fourth sentences only); Section
12.03; Section 13.05; Section 14.03 (second sentence only); Section 22.01;
Section 22.02; Section 22.03; Section 22.04; Section 22.05; Section 23.06;
Section 30.02(d); Article 31; Section 34.01 (last sentence only); Section
35.01; Article 36; Section 39.01; Section 39.02; Article 40; Section 42.01;
Section 42.04; Section 42.05; Article 43; Article 44; Section 45.02;
Section 45.03; Section 45.05;. Section 45.06; Section 45.07 (second
sentence only); Article 46; Exhibit B; Exhibit D; Exhibit E; Exhibit G;
Exhibit H; the First Modification; the Second Modification; and the Third
Modification.
For purposes of incorporation by reference of the Xxxxxxxxx, the following
provisions shall apply: the words "to be" in the first sentence of Section 13.01
shall be deemed deleted; and all references in Article 14 and elsewhere in the
Xxxxxxxxx to the "Cleaning Contract" shall be deemed to mean that certain
Cleaning Contract, dated of even date with the Xxxxxxxxx, between Solstead
Associates ("Solstead") and Sublessor, as the same has been assigned by Solstead
(the "Cleaning Agreement").
(c) For purposes of incorporation by reference of the Xxxxxxxxx,
where reference is made in the following Sections, Article and Exhibit to
"Landlord", the same shall be deemed to mean "Overlandlord":
Section 5.06 (first sentence only); Section 8.05; Section 11.01; Section
11.02; Section 12.01 (first sentence only); Section 12.02; Section 13.02
(fifth and sixth sentences only); Section 14.06; Section 15.01; Section
15.02 (the first use of the word "Landlord" in the first sentence only);
Section 15.03(b); Section 16.03 (first sentence only); Section 16.05;
Section 24.04; Article 32; Section 39.03; and Exhibit C.
(d) For purposes of incorporation by reference of the Xxxxxxxxx,
where reference is made in the following Sections and Article to "Landlord", the
same shall be deemed to mean "Overlandlord" and "Sublessor":
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Section 5.06 (third and fourth sentences only); Section 8.02(a); Section
8.08; Section 10.01; Section 10.02(a); Section 10.02(b); Section 10.02(c);
Section 10.04: Section 10.05; Section 10.07; Section 14.04; Section 14.05;
Section 14.08; Section 15.03(a); Section 15.04; Section 15.05; Section
16.03 (the first use of the word "Landlord" in the second sentence only);
Section 16.06; Section 17.01(d)(iii); Section 21.05(b); Section 23.01;
Section 23.02; Section 23.03; Section 23.04; Section 23.05; Section 24.01;
Section 24.02; Section 24.03; Section 25.01; Section 25.02; Section 30.01
(and the reference therein to "Exhibit C" shall be deemed to refer to
"Exhibit F"); Section 33.01; Section 34.01; Section 37.01; and Article 20;
where reference is made in any provision of the Xxxxxxxxx to the renewal or
extension option, each such provision shall be construed as though there
were no renewal or extension option set forth in the Xxxxxxxxx; and where
reference is made in any provisions of the Xxxxxxxxx to the Work Letter or
use of the roof or basement space, each such provision shall be construed
as though there were no Work Letter or use of the roof or basement space
set forth in the Xxxxxxxxx.
(e) If any of the express provisions of this Sublease shall conflict
with any of the provisions incorporated by reference, such conflict shall be
resolved in every instance in favor of the express provisions of this Sublease.
4. PERFORMANCE BY SUBLESSOR. (a) Any obligation of Overlandlord under
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the Xxxxxxxxx which, pursuant to the incorporation by reference set forth in
Section 3 hereof, is to be performed by Sublessor, shall be observed or
performed by Sublessor using reasonable and diligent efforts to cause
Overlandlord to observe and/or perform the same, and Sublessor shall have a
reasonable time within which to enforce its rights to cause such observance or
performance. Any obligation of Sublessor under this Sublease, to the extent that
it is (i) not an obligation of Overlandlord under the Xxxxxxxxx (as incorporated
herein by reference), and (ii) specifically set forth in this Sublease as an
obligation of Sublessor and not of Overlandlord, shall be observed and performed
by Sublessor. Subtenant shall not in any event have any rights in respect of the
Subleased Premises greater than Sublessor's rights under the Xxxxxxxxx. Except
as otherwise set forth in Section 3 hereof or elsewhere in this Sublease,
Sublessor agrees that Subtenant shall have and enjoy the same rights which
Sublessor, as tenant under the Xxxxxxxxx, has to performance by Overlandlord of
any service, repair, alteration or other similar obligation which is the
obligation of Overlandlord to perform in respect of the Subleased Premises
pursuant to those provisions of the Xxxxxxxxx incorporated herein by reference;
provided, however, that, except for Sublessor's obligation to use reasonable and
diligent efforts to cause Overlandlord to observe or perform its obligations
pursuant to the Xxxxxxxxx, as set forth herein, and except as expressly set
forth to the contrary in this Sublease, in no event shall Sublessor have any
obligation or responsibility whatsoever to provide or perform any such service,
repair, alteration or other similar obligation including, but not limited to,
the obligation of Overlandlord to (i) make restorations or repairs after damage
to the Building or the Subleased Premises by fire or other casualty or after
condemnation pursuant to Articles 15 and 16 of the Xxxxxxxxx, (ii) make the
repairs or alterations referred to in
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Article 11 of the Xxxxxxxxx, or (iii) provide the services specified in Article
12, Section 13.05, Article 14 and Article 25 of the Xxxxxxxxx. Subtenant further
acknowledges and agrees that each such obligation shall be provided or performed
by Overlandlord and not by Sublessor. No failure to furnish, or interruption of,
any such services or facilities shall give rise to any (x) abatement, diminution
or reduction of Subtenant's obligations under this Sublease, except as set forth
in Subsection 4(b) hereof, (y) constructive eviction, whether in whole or in
part, or (z) liability on the part of Sublessor.
(b) If Overlandlord does not perform or observe any of the
agreements, covenants, obligations, terms, provisions or conditions under the
Xxxxxxxxx on its part to be performed or observed (collectively, "Overlandlord's
Obligations") (including any obligation for the payment of money or any failure
or delay on Overlandlord's part in providing any services or in making any
repairs or alterations, or in performing or observing any similar obligation of
Overlandlord under the Xxxxxxxxx), Sublessor shall have no liability therefor to
Subtenant and shall be excused from performance of the corresponding obligations
which may be owed by Sublessor to Subtenant under this Sublease. However,
Subtenant, pursuant to the provisions of Section 4(c) hereof, may fully enforce
Sublessor's rights against Overlandlord in respect of any such default insofar
as the same relate to the Subleased Premises, and if and to the extent that
Sublessor shall receive any abatement of Fixed Rent or Additional Rent in
respect of the Subleased Premises, the Fixed Rent and Additional Charges due
under this Sublease shall xxxxx to any such extent, less any costs or expenses
incurred by Sublessor in obtaining any such abatement.
(c) If Subtenant shall notify Sublessor that Overlandlord is not
supplying services to the Subleased Premises or otherwise not performing any of
Overlandlord's Obligations as required under the Xxxxxxxxx, Sublessor shall use
all reasonable efforts to cause Overlandlord to comply with Overlandlord's
Obligations; provided, however, that (unless otherwise expressly provided
herein) in no event shall Sublessor be obligated to (i) commence or maintain any
action or proceeding at law or in equity, or (ii) otherwise expend any sums of
money to compel Overlandlord to perform or observe its obligations under the
Xxxxxxxxx. If, following a reasonable time within which Sublessor has expended
such reasonable efforts as aforesaid, Overlandlord shall fail to perform such
Overlandlord's Obligations, Sublessor shall, upon notice, permit Subtenant, at
Subtenant's sole cost and expense, to enforce Sublessor's rights against
Overlandlord with respect to the Subleased Premises in Sublessor's name or in
Subtenant's name as agent for Sublessor, and Subtenant shall and hereby does
agree to indemnify Sublessor in respect thereof in accordance with the terms of
Section 7 hereof. Sublessor shall, at no expense to Sublessor, provide its
reasonable cooperation to Sublessee.
5. NO BREACH OF XXXXXXXXX. (a) Sublessor represents and warrants to
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Subtenant that (i) the Xxxxxxxxx is in full force and effect and, except as
otherwise set forth herein, has not been modified or amended, (ii) Sublessor has
not received any notice of default from Overlandlord, (iii) to the best of
Sublessor's knowledge, Overlandlord is not in material default on the date
hereof in its respective obligations
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pursuant to the terms of the Xxxxxxxxx, (iv) Sublessor has not received notice
of any occurrence which, with the giving of notice or the passage of time, or
both, would constitute a material default on the part of either Sublessor or
Overlandlord, respectively, pursuant to the terms of the Xxxxxxxxx, (v)
Sublessor is in compliance with Sections 22.04(b) and (d) of the Xxxxxxxxx, (vi)
Sublessor has good title to the items of office furniture identified on Exhibit
C annexed hereto and may license the use of the same to Subtenant and (vii) as
of the date hereof, Sublessor has no claims, counterclaims, offsets or
deductions against Fixed Rent payable under the Xxxxxxxxx or otherwise with
respect to Overlandlord in respect of the Xxxxxxxxx; provided, however, that the
representation and warranty made pursuant to the preceding subsection (iv)
hereof does not constitute a waiver of any such claims, counterclaims, offsets
or deductions, and is made solely for the benefit of Subtenant and may not be
relied upon by any third party including, but not limited to, Overlandlord.
(b) Neither party hereto shall do or permit to be done any act or
thing which may constitute a breach or violation of any term, covenant or
condition of the Xxxxxxxxx by the landlord or tenant thereunder, as applicable,
with respect to the Subleased Premises, whether or not such act or thing is
permitted under the provisions of this Sublease.
6. NO PRIVITY OF ESTATE. Nothing contained in this Sublease shall be
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construed to create private of estate or of contract between Subtenant and
Overlandlord.
7. INDEMNITY. (a) Subtenant shall and hereby does indemnify, defend
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and hold harmless Sublessor from and against any and all losses, costs, damages,
expenses and liabilities (including, but not limited to, attorneys' fees and
expenses), which Sublessor incurs or pays out by reason of (i) any accidents,
damages or injuries to persons or property occurring in, on or about the
Subleased Premises, (ii) any work done in or to the Subleased Premises by or on
behalf of, or at the direction of, Subtenant, (iii) any act, omission or
negligence on the part of Subtenant and/or its officers, employees, agents,
customers, invitees, licensees, or permitted further subtenants or assigns, or
any person claiming through or under Subtenant and/or its officers, employees,
agents, customers, invitees, licensees, or permitted further subtenants or
assigns with respect to the Building or the Subleased Premises, (iv) Subtenant's
enforcement of Sublessor's rights against Overlandlord with respect to the
Subleased Premises in Sublessor's name or in Subtenant's name as agent for
Sublessor pursuant to Section 4 or Subsection 11(b) hereof, (v) Subtenant's
failure to comply with the covenants set forth in Subsection 5(b) hereof, (vi)
Subtenant's use, maintenance or removal of the Furniture (as such term is
defined in Section 1 hereof), (vii) any violation of Subtenant's covenants set
forth herein, or (viii) any other breach or default hereunder on Subtenant's
part. Notwithstanding anything to the contrary set forth herein, the foregoing
indemnification shall not apply to any loss, cost, damage or expense suffered by
Sublessor solely as a result of Sublessor's willful misconduct or willful
default hereunder. The indemnification set forth in this Section 7 shall survive
the Expiration Date or sooner termination of the term of this Sublease.
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(b) Sublessor shall and hereby does indemnify, defend and held
harmless Subtenant from and against any and all losses, costs, damages, expenses
and liabilities (including, but not limited to, attorneys' fees and expenses),
which Subtenant incurs or pays out by reason of (i) breach of the
representations and warranties of Sublessor as set forth in Section 5 hereof,
(ii) any violation of Sublessor's covenants set forth in Section 30, (iii) any
act, omission or negligence on the part of Sublessor and/or its officers,
employees, agents, customers, invitees, licensees, or any person claiming
through or under Sublessor and/or its officers, employees, agents, customers,
invitees, licensees, with respect to the Subleased Premises, (iv) Sublessor's
failure to comply with the covenants set forth in Subsection 5(b) hereof, or (v)
any other breach or default hereunder on Sublessor's part.
8. WAIVER OF SUBROGATION. Subtenant agrees to cause its insurance
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carriers to include any classes or endorsements in favor of Overlandlord
including, but not limited to, waivers of the right of subrogation, which
Sublessor is required to provide pursuant to the provisions of the Xxxxxxxxx.
9. FIXED RENT. (a) Except as provided in Section 9(b), Subtenant
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shall pay to Sublessor rent (herein called "Fixed Rent") hereunder at the rate
of Three Hundred Fifty Thousand Seven Hundred Fifty and 00/100 Dollars
($350,750.00) per annum in equal monthly installments of Twenty-Nine Thousand
Two Hundred Twenty-Nine and 16/100 Dollars ($29,229.16) in advance on the first
day of each month during the term of this Sublease, commencing on the
Commencement Date (such date is referred to herein as the "Rent Commencement
Date").
(b) Sublessor shall xxxxx one hundred percent (100%) of the monthly
Fixed Rent for the first eight full months and the thirteenth month of the term
of this Sublease.
(c) Fixed Rent shall be paid in advance to Sublessor on the first day
of each and every month during the term of this Sublease in lawful money of the
United States by check drawn on a bank which is a member of the New York
Clearing House Association at the address of Sublessor set forth in the first
paragraph of this Sublease to the attention of the Secretary and Manager of
Facilities, or to such other person and/or at such other address as Sublessor
may from time to time designate by notice in writing to Subtenant. All other
amounts payable by Subtenant to Sublessor under the terms of this Sublease
(hereinafter called "Additional Charges") shall be paid within ten (10) days of
notice of same from Sublessor to Subtenant in the manner set forth aforesaid. If
for any reason whatsoever the term of this Sublease shall expire or be sooner
terminated on a date which is not the last day of the month, Fixed Rent shall be
prorated based upon the number of days in any such month. Fixed Rent and
Additional Charges shall be paid promptly when due, without notice or demand
therefor, and without deduction, abatement, counterclaim or setoff of any amount
or for any reason whatsoever. Unless otherwise expressly permitted pursuant to
the terms of this Sublease, no payment by Subtenant or receipt by Sublessor of
any lesser amount than the amount stipulated to be paid hereunder shall be
deemed other than on account of the earliest stipulated Fixed Rent or Additional
Charges, nor shall any endorsement or statement on any
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check or letter be deemed an accord and satisfaction, and Sublessor may accept
any check or payment without prejudice to Sublessor's right to recover the
balance due, if any, or to pursue any other remedy available to Sublessor.
10. LATE CHARGES. If payment of any Fixed Rent or Additional Charges
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shall not have been paid within ten (10) days after the date on which such
amount was due and payable hereunder, a late charge calculated by multiplying an
annual rate equal to one percent (1%) over the rate of interest publicly
announced from time to time by Citibank, N.A. in New York, New York as its base
rate by the sum so due and owing shall be added to the sum due and shall be
deemed Additional Charges hereunder. Nothing in this Section contained and no
acceptance of late charges by Sublessor shall be deemed to extend or change the
time for payment of Fixed Rent or Additional Charges.
11. ADDITIONAL CHARGES. (a) In addition to the Fixed Rent reserved in
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Section 9 hereof, Subtenant covenants and agrees to pay to Sublessor, as
Additional Charges, the following:
(i) Subtenant's Proportionate Share (as hereinafter defined) of all
sums which Sublessor is required to pay to Overlandlord with respect to the
Xxxxxxxxx Space (as hereinafter defined) pursuant to (x) Article 6 of the
Xxxxxxxxx with respect to the term of this Sublease in respect of (A)
Operating Expenses (as defined in Exhibit C to the Xxxxxxxxx) in excess of
Base Operating Expenses (as hereinafter defined) and (B) Taxes (as defined
in Subsection 6.01(g) of the Xxxxxxxxx) in excess of Base Taxes (as
hereinafter defined), (y) Article 7 of the Xxxxxxxxx in respect of Building
Electricity Costs (as defined in Section 7.01(a) of the Xxxxxxxxx) in
excess of Building Electricity Costs for the base calendar year 1996, and
(z) subject to Section 30 hereof, Article 4 of the Cleaning Agreement (or
in the event of the termination of the Cleaning Agreement, pursuant to
Subsection 14.0 1(b)(ii) of the Xxxxxxxxx) in respect of cleaning cost
escalation in excess of cleaning costs for the base calendar year 1996. For
purposes hereof, the term "Base Taxes" as used in the Xxxxxxxxx, as
incorporated herein by reference, shall mean all Taxes applicable to the
Building for fiscal tax year 1996-1997, and the term "Base Operating
Expenses" as used in the Xxxxxxxxx, as incorporated herein by reference,
shall mean all Operating Expenses applicable to the Building for calendar
year 1996. The term "Tax Year" as used in the Xxxxxxxxx, as incorporated
herein by reference, shall mean each period of twelve (12) months
commencing on January 1st of each year. Increases in Taxes during the term
of this Sublease, if any, shall be effective as of January 1 of each year
during the term of this Sublease. The term "Subtenant's Proportionate
Share" shall mean that fraction, the numerator of which is the rentable
area of the Subleased Premises and the denominator of which is the rentable
area of all of the space leased by Sublessor under the Xxxxxxxxx (the
"Xxxxxxxxx Space"). The parties hereto irrevocably agree that Subtenant's
Proportionate Share, expressed as a percentage, is five percent (5%);
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(ii) All sums payable for or on account of additional cleaning
services in respect of the Subleased Premises including, without being
limited to, pursuant to Sections 1 and 16 of the Cleaning Agreement; and
(iii) Any other sums which become due and payable by Sublessor to
Overlandlord as Additional Rent (as such term is used in the Xxxxxxxxx) or
otherwise which would not have become due and payable but for the acts
and/or failures to act of Subtenant under this Sublease, including, but not
limited to: (x) any increase in Overlandlord's fire, rent or other
insurance premiums as provided in Subsection 8.02(a) of the Xxxxxxxxx
resulting from any act or omission of Subtenant; (y) any additional charges
to Sublessor on account of Subtenant's use of heating, ventilation or air
conditioning as provided in Section 12.02 of the Xxxxxxxxx; and (z)
elevator service after hours or in excess of normal usage in respect of the
Subleased Premises, as provided in Sections 45.05 and 45.07 of the
Xxxxxxxxx.
(b) The parties hereto agree that Sublessor shall in no event be
liable to Subtenant nor shall Subtenant be excused from the performance or
observance of any of its obligations to be performed or observed under this
Sublease, or entitled to terminate this Sublease or to receive any reduction in
or abatement of the annual Fixed Rent, Additional Charges and other charges
provided for in this Sublease, because of any error in any statement submitted
by Overlandlord, except as may be permitted to Sublessor as tenant under the
Xxxxxxxxx. If Overlandlord shall fail to correct any such statement which is
contested by Subtenant, Sublessor shall, upon notice, permit Subtenant, at
Subtenant's sole cost and expense, to enforce Sublessor's rights against
Overlandlord with respect to such statement in Sublessor's name or in
Subtenant's name as agent for Sublessor, provided that Subtenant indemnifies
Sublessor therefor in accordance with the terms of Section 7 hereof. Sublessor
agrees to cooperate with Subtenant in such action and shall execute any and all
documents reasonably required in furtherance of such action. In the event that
as a result of Subtenant's action Sublessor shall receive a refund relating to
such contested statement, Sublessor shall pay to Subtenant, out of such refund,
an amount equal to the reasonable costs and expenses incurred by Subtenant in
connection therewith upon presentation of receipted bills therefor, and
Subtenant's proportionate share of the balance of such refund, as applicable. If
Sublessor receives any notice or demand from Overlandlord in respect of the
Subleased Premises, Sublessor shall promptly forward a copy thereof to
Subtenant. In the event of any dispute concerning the accuracy of any Additional
Charges imposed upon Subtenant, Subtenant agrees to pay any such disputed
Additional Charges promptly upon demand therefor.
(c) Sublessor shall provide Subtenant with copies of all relevant
statements with respect to Additional Charges, Additional Rent and other charges
provided for in this Sublease, together with survey results of Overlandlord
received by Sublessor relating, directly or indirectly, to the Subleased
Premises, and any item of Additional Charges payable by Sublessor pursuant to
the provisions of the Xxxxxxxxx, together with a statement or statements, with
appropriate computations, of such amounts, if any, which Subtenant is
10
thereafter required to pay hereunder. Any failure or delay on the part of
Sublessor to xxxx Subtenant (or send copies of relevant statements or survey
results of Overlandlord received by Sublessor) shall not operate as a waiver of
Sublessor's rights hereunder to collect any such Additional Charges.
(d) Subtenant's obligations to pay any Additional Charges during the
use and occupancy of the Subleased Premises by Subtenant or its successors and
assigns, and Sublessor's obligation to refund any overpayment, if any, hereunder
shall survive the Expiration Date or sooner termination of the term of this
Sublease and, except as may be herein provided, all sums payable by Subtenant to
Sublessor pursuant to this Sublease as Additional Charges shall be collectible
by Sublessor at the same time and in the same manner as Fixed Rent.
(e) In the event that the Building air-cooling and/or heating system
is divided into zones within the Building and Subtenant requests any additional
or off-hour services, Subtenant shall pay the entire cost of such services as
Additional Charges, notwithstanding the fact that other tenants or subtenants in
the service zone may benefit from such services. However, in the event that
another tenant or subtenant requests such off-hour services and Subtenant
receives the benefit thereof as a consequence of being within the same service
zone as such other tenant, and Subtenant has not requested any such services,
Subtenant shall have no obligation to pay for any portion of such services. In
the event that both Subtenant and another tenant or subtenant request additional
or off-hour services of air-cooling and/or heating, the cost of such services as
described above shall be paid by Subtenant and such other tenant or subtenant on
a pro rata basis in accordance with the square footage of each party's premises
--- ----
within the same service zone of the Building.
12. USE. Subject to the terms of Section 3 hereof, Subtenant shall
---
use and occupy the Subleased Premises for any use permitted pursuant to Article
5 of the Xxxxxxxxx, as the same has been incorporated herein, and for no other
purpose. Subtenant shall comply with the temporary or permanent certificate of
occupancy relating to the Subleased Premises and with all Legal Requirements (as
such term is defined in Section 2.01 of the Xxxxxxxxx), and requirements of the
board of fire underwriters and/or the fire insurance rating organization or
similar organization performing the same or similar functions, whether now or
hereafter in force, having or claiming authority over the Subleased Premises.
13. CONDITION OF SUBLEASED PREMISES. (a) Supplementing the terms of
-------------------------------
Section 42.02 of the Xxxxxxxxx, and except as otherwise expressly set forth in
this Sublease, Subtenant acknowledges and agrees that it is leasing the
Subleased Premises "as is" and Sublessor is not required to perform any work or
expend any monies in connection with the space demised pursuant to the terms of
this Sublease. In making and executing this Sublease, Subtenant has relied
solely on such investigations, examinations and inspections of the Subleased
Premises as Subtenant has chosen to make or has made. Subtenant acknowledges
that Sublessor has afforded Subtenant the opportunity for full and complete
investigations, examinations and inspections of the Subleased Premises.
11
(b) The parties hereto agrees that (i) Subtenant shall accept
possession of the Furniture in its "as is, where is" condition and (ii)
Sublessor has made no representations or warranties of any kind (including, but
not limited to, warranties of fitness for any particular use or purpose) with
respect to the Furniture. Subtenant agrees to maintain the Furniture in the
condition accepted and, subject to the next succeeding sentence, upon the
Expiration Date or termination of this Sublease, to surrender possession of the
Furniture to Sublessor in the same condition, subject to ordinary use, wear and
tear and natural deterioration. Subtenant shall have the option, upon written
notice to Sublessor given no earlier than sixty (60) days and no later than
thirty (30) days prior to the expiration of this Sublease, to purchase the
Furniture at such cost equal to the fair market value of the Furniture on the
day such Notice is deemed given pursuant to this Sublease, as such cost is
agreed upon by the parties. In the event the parties are unable to agree upon
the fair market value of the Furniture, such fair market value shall be
determined by a reputable independent appraiser designated by Sublessor and
reasonably approved by Subtenant. The fees and disbursements of such appraiser
shall be borne equally by Sublessor and Subtenant. Subtenant shall repair or
replace at its own expense any Furniture accepted in accordance herewith not in
the condition required to be maintained hereunder and, in the event Subtenant
fails to do so, Subtenant agrees that Sublessor shall have the right, but not
the obligation, to so repair or replace and to charge Subtenant therefor as and
for Additional Charges. Sublessor and Subtenant agree that Subtenant shall in no
event violate the terms of the Xxxxxxxxx in connection with the use and
maintenance of the Furniture. Subtenant agrees promptly to repair any damage to
the Subleased Premises (or reimburse Sublessor for the reasonable cost thereof)
caused by the use and maintenance of the Furniture. Subtenant further agrees to
indemnify, defend and hold harmless Sublessor from any suit, claim, damage,
judgment, loss, cost or expense arising out of Subtenant's use of the Furniture.
(c) Sublessor represents to Subtenant that, to the best of
Sublessor's knowledge, the Building elevators, air conditioning, heating,
ventilating, plumbing, water, lighting and electrical power facilities used in
connection with the Subleased Premises are in good working order on the date
hereof; provided, however, that the foregoing representation (i) shall not
constitute a warranty of any nature whatsoever, and (ii) does not modify or
otherwise affect in any manner Sublessor's obligation to deliver and Subtenant's
obligation to sublease the Subleased Premises in their "as is" condition as set
forth in Subsection 13(a) hereof.
14. CONSENTS AND APPROVALS. Supplementing the terms of Article 38 of
----------------------
the Xxxxxxxxx, in any instance when Sublessor's consent or approval is required
under this Sublease, Sublessor's refusal to consent to or approve any matter or
thing shall be deemed reasonable if, inter alia, such consent or approval has
----- ----
not been obtained from Overlandlord.
15. NOTICES. All notices, consents, approvals, demands and requests
-------
which are required or desired to be given by either party to the other hereunder
shall be in writing, addressed as hereinafter set forth, and shall be sent by
(a) United States registered or
12
certified mail and deposited in a United States post office, return receipt
requested and postage prepaid. (b) hand delivery or (c) overnight courier
service. Notices, consents, approvals, demands and requests which are served
upon Sublessor or Subtenant in the manner provided herein shall be deemed to
have been given or served for all purposes hereunder on the third (3rd) day
following the date on which such notice, consent, approval, demand or request
shall have been delivered for deposit in a United States post office, addressed
as provided herein, or when received by hand or courier as aforesaid by the
addressee hereinafter set forth. All notices, consents, approvals, demands and
requests given to Subtenant shall be addressed to Subtenant at the following
address, or at such other place or to such other addressee as Subtenant may,
from time to time, designate in a notice given in accordance with the provision
of this Section: 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx with a copy addressed
to: Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx P.C., 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxx X. Xxxxxx, Esq. All
notices, consents, approvals, demands and requests given to Sublessor shall be
in duplicate, and until such time as Sublessor shall designate otherwise, one
such duplicate shall be addressed to Sublessor at its address set forth in the
first paragraph of this Sublease to the attention of the Director of Corporate
Services, and the other duplicate shall be addressed to Shearman & Sterling,
Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Real
Estate Notices CMS 2962/2496. Sublessor may from time to time change the names
and/or addresses to which notices, consents, approvals, demands and requests
given to Sublessor shall be addressed and sent as aforesaid, by designating such
other names and/or addresses in a notice given in accordance with the provisions
of this Article.
16. TERMINATION OF XXXXXXXXX. If for any reason the term of the
------------------------
Xxxxxxxxx shall terminate prior to the Expiration Date, this Sublease shall
thereupon be terminated. Notwithstanding the foregoing (but subject to the terms
of the Xxxxxxxxx), Subtenant covenants and agrees that if for any, reason the
term of the Xxxxxxxxx shall terminate prior to the Expiration Date or
Overlandlord shall otherwise succeed to the estate of Sublessor in respect of
the Subleased Premises, Subtenant shall and hereby does waive any right to
surrender possession of the Subleased Premises or to terminate this Sublease
and, at Overlandlord's election, Subtenant agrees to be bound to Overlandlord
for the balance of the term of this Sublease and to attorn to and recognize
Overlandlord as its landlord under all of the then executory terms of this
Sublease, except that Overlandlord shall not be (a) liable for any previous act,
omission or negligence of Sublessor under this Sublease, (b) subject to any
counterclaim, defense or offset not expressly provided for in this Sublease
theretofore accruing to Subtenant against Sublessor, (c) bound by any previous
modification or by any previous prepayment of more than one month's Fixed Rent
and Additional Charges unless paid as provided in this Sublease, or (d)
obligated to perform any repairs or other work in the Subleased Premises or the
Building beyond Overlandlord's obligations under the Xxxxxxxxx, and Subtenant
agrees to execute and deliver such instruments as Overlandlord may reasonably
request to evidence and confirm such attornment.
17. ASSIGNMENT AND SUBLETTING. (a) Except as expressly provided in
-------------------------
this Article 17, Subtenant shall not, by operation of law or otherwise, assign,
13
sell, mortgage, pledge or in any manner transfer this Sublease or any interest
herein, or sublet the Subleased Premises or any part or parts thereof, or grant
any concession or license or otherwise permit occupancy of all or any portion of
the Subleased Premises by any person, without the consent of (i) Sublessor,
which consent shall not be unreasonably withheld or delayed if such proposed
assignment or subletting is in accordance with the terms of Subsections 17(b)
through (g) hereof or, if not in accordance with such provisions, may be
withheld for any reason whatsoever, and (ii) Overlandlord, as set forth more
fully in Article 22 of the Xxxxxxxxx. Subtenant shall pay, upon demand, (i) any
cost, expense or fee of Overlandlord which is required to be paid in connection
with any assignment, subleasing or occupancy pursuant to this Section 17, and
(ii) any cost or expense of Sublessor which is incurred by Sublessor in
connection with any request for consent to any assignment, subletting or
occupancy pursuant to this Section 17. For purposes of this provision, unless
Subtenant shall be a "public corporation," the sale or transfer of fifty percent
(50%) of the stock of Subtenant, whether in a single transfer or in transfers of
lesser amounts which, when aggregated together, equal fifty percent (50%), shall
be deemed an assignment of Subtenant's interest under this Sublease.
(b) In the event that Subtenant shall desire Sublessor's consent to
an assignment of this Sublease or to a subletting of all or any portion of the
Subleased Premises, Subtenant shall request such consent by submitting to
Sublessor a statement of the material terms and conditions of such proposed
assignment or sublease and such other information as Sublessor may reasonably
require. Provided that Subtenant shall not be in default under any of the terms,
covenants or conditions of this Sublease, Sublessor shall not unreasonably
withhold or delay its consent to any such proposed assignment or subletting if
any proposed assignee or subtenant of Subtenant shall have a net worth
reasonably acceptable to Sublessor. Sublessor shall notify Subtenant whether it
consents to the proposed assignment or subletting within thirty (30) days from
the receipt by Sublessor of Subtenant's statement as required herein.
(c) Subject to Subsection 17(b) hereof, if Subtenant shall sublet all
or any portion of the Subleased Premises, Subtenant shall pay to Sublessor, as
Additional Charges hereunder, on a monthly basis, fifty percent (50%) of the
amount by which (a) any rents, additional charges or other consideration payable
in connection with the subletting by Subtenant (including, but not limited to,
sums paid for the sale or rental of leasehold improvements and personal property
in excess of, in the case of leasehold improvements and personal property
actually purchased by Subtenant, the unamortized or undepreciated value thereof)
exceeds (b) the sum of (i) the pro rata portion (on a rentable square foot
basis) of the amount payable for Fixed Rent and Additional Charges hereunder for
such portion of the Subleased Premises during the term of the subletting, (ii)
any amounts paid by Subtenant under Section 17(a) hereof and (iii) any amounts
paid by Subtenant on account of reasonable brokerage commissions incurred by
Subtenant in connection with the particular subletting in question (amortized
over the term of the subletting).
14
(d) Subject to the terms of this Section 17, Subtenant shall not
publicly advertise (except by listing with a broker) space in the Subleased
Premises at a rental rate less than the rent at which Overlandlord or Sublessor.
as the case may be, is then offering to lease comparable space in the Building,
if any; provided, that the foregoing restriction shall not be deemed to prohibit
Subtenant from privately offering space, or negotiating a sublease, at a lower
rental rate.
(e) Neither the consent of Sublessor to an assignment, subletting,
concession or license nor the references in this Sublease to assignees,
subtenants concessionaires or licensees shall in any way be construed to relieve
Subtenant of the requirement of obtaining the consent of Sublessor to any
further assignment or subletting or to the making of any assignment, subletting,
concession or license for all or any part of the Subleased Premises. In the
event Sublessor consents to any assignment of this Sublease, the assignee shall
execute and deliver to Sublessor an agreement, in form and substance
satisfactory to Sublessor, whereby the assignee shall assume all of Subtenant's
obligations under this Sublease. Notwithstanding any assignment or subletting,
including, without limitation, any assignment or subletting permitted or
consented to, the original Subtenant named herein and any other person(s) who at
any time was or were Subtenant shall remain fully liable on this Sublease, and
if this Sublease shall be amended, modified, extended or renewed, the original
Subtenant named herein and any other person(s) who at any time was or were
Subtenant shall remain fully liable on this Sublease as so amended, modified,
extended or renewed; provided, however, that no such amendment or other
modification to this Sublease following any such assignment shall adversely
affect Subtenant's rights or responsibilities under this Sublease. Any violation
of any provision of this Sublease by any assignee, subtenant or other occupant
shall be deemed a violation by the original Subtenant named herein, and the then
Subtenant and any other person(s) who at any time was or were Subtenant, it
being the intention and meaning that the original Subtenant named herein, the
then Subtenant and any other person(s) who at any time was or were Subtenant
shall all be liable to Sublessor for any and all acts and omissions of any and
all assignees, subtenants and other occupants of the Subleased Premises. If this
Sublease shall be assigned or if the Subleased Premises or any part thereof
shall be sublet or occupied by any person or persons other than the original
Subtenant named herein, Sublessor may collect rent from any such assignee and/or
any subtenants or occupants, and apply the net amounts collected to Fixed Rent
and Additional Charges, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this Section, or
the acceptance of the assignee, subtenant or occupancy as Subtenant, or a
release of any person from the further performance by such person of the
obligations of Subtenant under this Sublease.
(f) Notwithstanding anything to the contrary set forth in this
Section 17, so long as Subtenant shall not be in default under any of the terms,
covenants or conditions of this Sublease, Subtenant may, without the prior
written consent of Sublessor but subject to the terms of the Xxxxxxxxx and
following written notice thereof to Sublessor, permit all or any portion of the
Subleased Premises to be used by an entity which is an affiliate (as such term
is defined in Subsection 2.02(n) of the Xxxxxxxxx) of Subtenant upon such terms
and
15
conditions (but subject to the terms of this Sublease) as Subtenant and any such
affiliate may mutually agree.
(g) If, for any reason whatsoever, the ownership of or by Subtenant
of an affiliate set forth in Subsection 17(f) hereof which is a corporation is
reduced to less than a majority of the shares of all classes of voting stock
therein, such reduction shall constitute a prohibited assignment of this
Sublease or a sublease of all or a portion of the Subleased Premises, as the
case may be, and Subtenant shall cause any such affiliate to vacate that portion
of the Subleased Premises which it occupies simultaneously with the occurrence
of any such reduction. The failure of the affiliate promptly to vacate that
portion of the Subleased Premises promptly which it occupies shall constitute a
substantial default under the terms of this Sublease and Sublessor shall have
all the rights and remedies set forth herein in the event of a default by
Subtenant.
18. INSURANCE. Notwithstanding anything to the contrary set forth in
---------
Section 8.03 of the Xxxxxxxxx, Subtenant shall maintain throughout the term of
this Sublease comprehensive general public liability insurance in respect of the
Subleased Premises and the conduct and operation of business therein, with
Sublessor and Overlandlord listed as additional insureds, with limits of not
less than One Million Dollars ($1000,000.00) for bodily injury or death to any
one person and One Million Dollars ($1000,000.00) for bodily injury or death to
any number of persons in any one occurrence, and One Million Dollars
($1,000,000.00) for property damage, including water damage and sprinkler
leakage legal liability, with no penalty to Sublessor or Overlandlord resulting
from deductibles or self-insured retentions effected in Subtenant's insurance
coverage. Any such comprehensive general public liability insurance shall be
written on the 1973 ISO occurrence format with no "claims made" provisions
applying if such ISO occurrence format is then available and, if not available,
any successor thereto or otherwise comparable format. Subtenant agrees that upon
notice of Sublessor the aforesaid amounts of insurance shall be increased to
such reasonable amounts as may be then customary in New York City for comparable
space in comparable buildings. Subtenant shall deliver to Sublessor and
Overlandlord a fully paid-for policy or certificate evidencing the foregoing
coverage promptly following the date hereof and in any event prior to the
Commencement Date. Subtenant shall procure and pay for renewals of such
insurance from time to time before the expiration thereof, and Subtenant shall
deliver to Sublessor and Overlandlord such renewal policy or certificate at
least thirty (30) days before the expiration of any existing policy. In the
event Subtenant fails so to deliver such renewal policy or certificate at least
thirty (30) days before the expiration of any existing policy, Sublessor shall
have the right, but not the obligation, to obtain the same and the cost thereof
shall constitute Additional Charges payable hereunder. All such policies shall
be issued by companies licensed to do business in the State of New York, and
shall be rated "A" or better by Best's Insurance Guide, and all such policies
shall contain a provision whereby the same cannot be canceled or modified unless
Sublessor and Overlandlord are given at least twenty (20) days' prior written
notice of such cancellation or modification. Notwithstanding anything to the
contrary set forth herein, Subtenant acknowledges and agrees that Sublessor
shall have no obligation or responsibility whatsoever, to Subtenant to obtain or
16
maintain the insurance referenced in Sections 8.05, 8.06 and 8.07 of the
Xxxxxxxxx: Subtenant further acknowledges and agrees that such insurance shall
be obtained or maintained by Overlandlord and not by Sublessor.
19. ESTOPPEL CERTIFICATES. Subtenant shall, within ten (10) days
---------------------
after each and every request by Sublessor, execute, acknowledge and deliver to
Sublessor, without cost or expense to Sublessor, a statement in writing (a)
certifying that this Sublease is unmodified and, to the best knowledge of
Subtenant, is in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified, and stating such
modifications), (b) specifying the dates to which Fixed Rent and Additional
Charges have been paid, (c) stating whether or not, to the best knowledge of
Subtenant, Sublessor is in default in performance or observance of its
obligations under this Sublease and, if so, specifying each such default, (d)
stating whether or not, to the best knowledge of Subtenant, any event has
occurred which, with the giving of notice or passage of time, or both, would
constitute a default by Sublessor under this Sublease, and, if so, specifying
each such event, and (e) containing such other information with respect to the
Subleased Premises or this Sublease as Sublessor shall reasonably request. Any
such statement delivered pursuant to this Section may be relied upon by any
prospective assignee, transferee or mortgagee of the leasehold estate under the
Sublessor.
20. ALTERATIONS. Notwithstanding anything to the contrary set forth
-----------
in Article 10 of the Xxxxxxxxx, as the same has been incorporated herein by
reference, Subtenant shall not make or cause, suffer or permit the making of any
alteration, addition, change, replacement, installation or addition in or to the
Subleased Premises without obtaining the prior consent of Sublessor and, if
required, Overlandlord in each instance.
21. RIGHT TO CURE SUBTENANT'S DEFAULTS. If Subtenant shall at any
----------------------------------
time fail to make any payment or perform any other obligation of Subtenant
hereunder, then Sublessor shall have the right, but not the obligation, after
the lesser of five (5) days' notice to Subtenant or the time within which
Overlandlord may act on Sublessor's behalf under the Xxxxxxxxx, or without
notice to Subtenant in the case of any emergency, and without waiving or
releasing Subtenant from any obligations of Subtenant hereunder, to make such
payment or perform such other obligation of Subtenant in such manner and to such
extent as Sublessor shall deem necessary, and in exercising any such right, to
pay any incidental costs and expenses, employ attorneys and other professionals,
and incur and pay attorneys' fees and other costs reasonably required in
connection therewith. Subtenant shall pay to Sublessor upon demand all sums so
paid by Sublessor and all incidental costs and expenses of Sublessor in
connection therewith, together with interest thereon at the Interest Rate (as
such term is defined in Section 2.01(g) of the Xxxxxxxxx), or the then maximum
lawful interest rate, whichever shall be less, from the date of the making of
any such expenditures.
22. BROKERAGE. Subtenant represents and warrants to Sublessor that no
---------
broker or other person had any part, or was instrumental in any way, in bringing
about this
17
Sublease, other than Colliers ABR, Inc. (the "Broker"). Subtenant agrees to
indemnify, defend and hold harmless Sublessor from and against any claims made
by any broker or other person other than the Broker for a brokerage commission,
finder's fee, or similar compensation by reason of or in connection with this
Sublease, and any loss, liability, damage, cost and expense (including, without
limitation, attorneys' fees and expenses) in connection with such claims if such
broker or other person claims to have had dealings with Subtenant with respect
to the Subleased Premises. Sublessor agrees to pay the commission of the Broker
earned in connection with this transaction, if any, in accordance with the terms
of the agreement between Sublessor and the Broker.
23. WAIVER OF JURY TRIAL AND RIGHT TO COUNTERCLAIM. In addition to
----------------------------------------------
the covenants set forth in Article 26 of the Xxxxxxxxx, as incorporated herein
by reference, the parties hereto hereby waive all right to trial by jury in any
summary action or other action, proceeding or counterclaim arising out of or in
any way connected with this Sublease, the relationship of Sublessor and
Subtenant, the Subleased Premises and the use and occupancy thereof, and any
claim of injury or damages. Subtenant also hereby waives all right to assert or
interpose a counterclaim in any summary proceeding or other action or proceeding
to recover or obtain possession of the Subleased Premises.
24. NO WAIVER. The failure of either party hereto to insist in any
---------
one or more cases upon the strict performance or observance of any obligation of
the other party hereto hereunder or to exercise any right or option contained
herein shall not be construed as a waiver or relinquishment for the future of
any such obligation of such other party or any right or option of such party.
Sublessor's receipt and acceptance of Fixed Rent or Additional Charges, or
Sublessor's or Subtenant's acceptance of performance of any other obligation by
Subtenant or Sublessor, as the case may be, with knowledge of Subtenant's or
Sublessor's breach of any provision of this Sublease, shall not be deemed a
waiver of such breach. No waiver by either party hereto of any term, covenant or
condition of this Sublease shall be deemed to have been made unless expressed in
writing and signed by both parties hereto.
25. COMPLETE AGREEMENT. There are no representations, agreements,
------------------
arrangements or understandings, oral or written, between the parties relating to
the subject matter of this Sublease which are not fully expressed in this
Sublease. This Sublease cannot be changed or terminated orally or in any manner
other than by a written agreement executed by both parties hereto.
26. SUCCESSORS AND ASSIGNS. The provisions of this Sublease, except
----------------------
as herein otherwise specifically provided, shall extend to, bind and inure to
the benefit of the parties hereto and their respective personal representatives,
heirs, successors and permitted assigns. In the event of any assignment or
transfer of the leasehold estate under the Xxxxxxxxx by Sublessor or any
successor in interest thereto, the transferor or assignor, as the case may be,
shall be and hereby is entirely relieved and freed of all obligations under this
Sublease.
18
27. INTERPRETATION. Notwithstanding the place of execution or
--------------
performance of this Sublease, this Sublease shall be governed by, construed and
enforced in accordance with the internal laws of the State of New York without
reference to principles of conflict of laws. If any provision of this Sublease
or application thereof to any person or circumstance shall, for any reason and
to any extent, be invalid or unenforceable, the remainder of this Sublease and
the application of that provision to other persons or circumstances shall not be
affected, but rather shall be enforced to the maximum extent permitted by law.
The captions, headings and titles in this Sublease are solely for convenience of
reference and shall not affect its interpretation. This Sublease shall be
construed without regard to any presumption or other rule requiring construction
against the party causing this Sublease to be drafted. Each covenant, agreement,
obligation or other provision of this Sublease shall be deemed and construed as
a separate and independent covenant of the party bound by, undertaking or making
the same, which covenant, agreement, obligation or other provision shall be
construed and interpreted in the context of the Sublease as a whole. All terms
and words used in this Sublease, regardless of the number or gender in which
they are used, shall be deemed to include any other number and any other gender
as the context may require. The word "person" as used in this Sublease shall
mean a natural person or persons, a partnership, a corporation or any other form
of business or legal association or entity.
28. WAIVER OF IMMUNITY AND CONSENT TO JURISDICTION. To the extent
----------------------------------------------
that Subtenant or any of its property has, or may hereafter acquire, directly or
indirectly, any right of immunity from the jurisdiction of any court or from any
legal process (including immunity from attachment prior to judgment) on the
grounds of diplomatic status or sovereignty, Subtenant hereby irrevocably waives
any such right of immunity in respect of its obligations arising under or in
connection with this Sublease or Subtenant's occupancy of the Subleased
Premises. Subtenant represents and warrants to Sublessor that it is not now
entitled, directly or indirectly, to any such diplomatic or sovereign immunity
and should Sublessor or Overlandlord bring any suit, action or proceeding in the
State of New York or any other jurisdiction to enforce any obligation or
liability of Subtenant arising under or in connection with this Sublease or
Subtenant's occupancy of the Subleased Premises, no such immunity shall be
claimed by or on behalf of Subtenant.
29. SECURITY DEPOSIT. (a) Subtenant has deposited with Sublessor on
----------------
the date of execution and delivery of this Sublease a check, subject to
collection, in the amount of Fifty-Eight Thousand Four Hundred Fifty-Eight and
33/100 Dollars ($58,458.33) (the "Security Deposit") as security for the full
and punctual performance by Subtenant of all of its obligations under this
Sublease. Sublessor covenants and agrees that it shall invest the Security
Deposit in U.S. Treasury Bills having reasonable maturities taking into account
the proposed Expiration Date of this Sublease at such a yield as shall be
available. If the U.S. Treasury Bills held by Sublessor do not mature before the
Expiration Date, Sublessor shall either deliver said U.S. Treasury Bills to
Subtenant or shall sell them prior to maturity. For purposes of this Agreement,
a transfer of U.S. Treasury Bills to Subtenant shall be deemed to constitute
delivery thereof. Subtenant acknowledges and agrees that Sublessor shall have
19
no liability for any loss occasioned by investment of the Security Deposit as
aforesaid, or for any failure to obtain the maximum possible yield from the
Security Deposit.
(b) In the event of any default by Subtenant hereunder, Sublessor
shall have the right, but shall not be obligated, to use, apply or retain all or
any portion of the security deposit for (i) the payment of any Fixed Rent,
Additional Charges or any other sum as to which Subtenant is in default, (ii)
the payment of any amount which Sublessor may spend or become obligated to spend
to repair damage to the Subleased Premises or the Building for which repairs
Subtenant is liable, or (iii) the payment of any amount Sublessor may spend or
become obligated to spend, or for the compensation of Sublessor for any losses
incurred, by reason of Subtenant's default, including, but not limited to, any
damage or deficiency arising in connection with the reletting of the Subleased
Premises and all associated legal fees. If any portion of said deposit is so
used or applied, then, within three (3) business days after written notice to
Subtenant of such use or application, Subtenant shall deposit with Sublessor
cash or a check in an amount sufficient to restore the Security Deposit to its
original amount, and Subtenant's failure to do so shall constitute a default
under this Sublease.
(c) Within thirty (30) days after the expiration of the term of this
Sublease, and provided Subtenant has vacated the Subleased Premises and is not
in default hereunder, Sublessor shall return such Security Deposit to Subtenant,
less such portion thereof as Sublessor shall have appropriated to satisfy any
default by Subtenant hereunder. The use, application or retention of the
Security Deposit, or any portion thereof, by Sublessor shall not prevent
Sublessor from exercising any other right or remedy provided by this Sublease or
by law, and shall not limit any recovery to which Sublessor may otherwise be
entitled. The Security Deposit shall not be assigned or encumbered by Subtenant.
(d) In the event of the sale or transfer of Sublessor's interest in
the Subleased Premises, Sublessor shall have the right to transfer the Security
Deposit to the purchaser or transferee, in which event Subtenant shall look only
to the purchaser or transferee for the return of the Security Deposit, and
Sublessor shall be released from all liability to Subtenant for the return of
such Security Deposit.
30. CLEANING AND OTHER SERVICES. (a) Notwithstanding anything to the
---------------------------
contrary contained herein, Subtenant acknowledges and agrees that any and all
cleaning services to be provided to the Subleased Premises shall be performed by
Overlandlord or the Cleaning Contractor (as defined in the Cleaning Agreement)
in accordance with the terms of Article 14 of the Xxxxxxxxx and the Cleaning
Agreement, a true and complete copy of which is annexed hereto as Exhibit D.
Sublessor and Subtenant agree that the Fixed Rent set forth in Section 9 hereof
shall include Subtenant's Proportionate Share of the fixed annual cleaning fee
for the Subleased Premises payable pursuant to Section 3(a) of the Cleaning
Agreement, but shall not include any cleaning cost escalation payable pursuant
to Section 4 of the Cleaning Agreement in excess of cleaning costs incurred by
Sublessor in respect of the Subleased Premises for calendar year 1996, and
Subtenant shall
20
pay, as and for Additional Charges in accordance with the terms of this
Sublease, any and all escalations or additional charges levied by Overlandlord
or the Cleaning Contractor, as the case may be, in excess of any sums payable in
respect of cleaning services for calendar year 1996 in respect of the Subleased
Premises. Sublessor agrees that Subtenant shall have and enjoy the same rights
which Sublessor, as tenant under the Xxxxxxxxx, has to performance by
Overlandlord or the Cleaning Contractor of any service to be provided pursuant
to Article 14 of the Xxxxxxxxx or pursuant to the Cleaning Agreement,
respectively. In no event shall Sublessor be liable to Subtenant for the failure
of Overlandlord or the Cleaning Contractor to perform any such services;
provided, however, that Sublessor agrees to use all reasonable efforts to cause
Overlandlord or the Cleaning Contractor to perform any such services.
(b) Subject to the terms of Section 4 hereof, Sublessor covenants and
agrees that it shall make available to the Subleased Premises from 8:00 a.m. to
8:00 p.m. on Business Days (as such term is defined in Section 2.01 of the
Xxxxxxxxx) and from 8:00 a.m. to 1:00 p.m. on Saturdays no less than Subtenant's
Proportionate Share of the capacity of the Building's HVAC systems allocated to
Sublessor pursuant to the Xxxxxxxxx, including chilling, ventilation and air
volume capacities and CFMs. Such availability shall include, in the case of air
conditioning, no less than twenty-five (25) tons of condenser water in the
Building's cooling towers and cells.
(c) Subject to the terms of Section 4 hereof, Sublessor further
agrees that it shall make available at all times to the Subleased Premises no
less than Subtenant's Proportionate Share of hot and cold water provided by
Overlandlord for the operation of any lavatories and drinking fountains located
in the Subleased Premises.
(d) Sublessor covenants and agrees that it shall promptly forward to
Overlandlord any request of Subtenant that Overlandlord furnish replacement
lighting, tubes, lamps, starters, bulbs and ballasts (collectively, "Lighting
Equipment") required by Subtenant in the Subleased Premises; provided, however,
that (i) Subtenant shall reimburse Overlandlord for the cost of any such
Lighting Equipment promptly following demand therefor, and (ii) Sublessor shall
have no liability to Subtenant in the event that Overlandlord shall fail to
comply with any such request, or in the event of any loss, cost, damage or
expense resulting from the inadequacy or failure of any such Lighting Equipment.
Nothing set forth herein shall be construed to obligate Subtenant to purchase
any such Lighting Equipment from either Sublessor or Overlandlord.
(e) Upon the written request of Subtenant and other tenants or
subtenants leasing greater than sixty percent (60%) in the aggregate of the
space leased to Sublessor pursuant to the Xxxxxxxxx, Sublessor shall request
that Overlandlord, within the respective times prescribed by law for such
purposes and in accordance with the terms of the Xxxxxxxxx,
21
(i) file an application with the Tax Commission of the City of New
York, or with such other body as shall have the power to fix or review
assessed valuations, for reduction of the assessed valuation of the Real
Property (as such term is defined in the Xxxxxxxxx), and, unless a
reduction acceptable to Overlandlord is made,
(ii) file a petition or other appropriate pleading for the purpose of
obtaining a judicial review of such assessed valuation.
Sublessor agrees to provide to Subtenant the information supplied by
Overlandlord to Sublessor pursuant to Subsection 6.02(e) of the Xxxxxxxxx. Any
charges incurred by Sublessor or Overlandlord in connection with the
application, petition, or other pleading set forth in this Section 30 shall be
payable as and for Additional Charges by Subtenant and any other tenants or
subtenants requesting the filing or maintaining of any such application,
petition or other pleading pro rata in accordance with the square footage of
--- ----
space in the Building leased or subleased to such parties.
(f) Sublessor agrees to cause Overlandlord to provide Subtenant no
less than Subtenant's Proportionate Share of space, but in no event fewer than
four (4) listings, on the Building directory in the ground floor lobby of the
Building for the purpose of identifying Subtenant and its employees.
(g) Sublessor shall not be obligated to provide or maintain any
security patrol or security system with respect to the Subleased Premises but
will permit Subtenant, at its sole cost and expense, to use the card reader
systems currently mounted on the doors located in the Subleased Premises which
card reader systems Sublessor shall disconnect from Sublessor's existing
security system.
31. SUBTENANT ELECTRICITY. The parties hereto acknowledge and agree
---------------------
that the Subleased Premises are separately metered for electrical energy and
that any and all electrical energy to be supplied to the Subleased Premises
shall be supplied directly by the public utility company then serving the
Building with such service and Subtenant shall be responsible for making all
such arrangements therefor with such public utility company. Subtenant shall pay
the amount set forth on each month's xxxx for electrical energy directly to the
utility company supplying such electrical energy. In no event shall Sublessor be
liable to Subtenant for the failure of such utility company to supply such
electrical energy to the Subleased Premises.
32. ENVIRONMENTAL MATTERS. Subtenant covenants and agrees that it
---------------------
shall not permit any materials to be used in the Subleased Premises in violation
of any applicable environmental law, and hereby indemnifies Sublessor for any
loss incurred by Sublessor as a result of the breach of the foregoing covenant
and agreement in accordance with the terms of Section 7 hereof. Each of the
parties hereto agrees promptly to notify the other in the event that it becomes
aware of any violation of any applicable environmental law affecting the
Subleased Premises.
22
33. QUIET ENJOYMENT. If, and so long as, Subtenant pays the Fixed
---------------
Rent and Additional Charges and keeps, observes and performs each and every
term, covenant and condition of this Sublease on the part or on behalf of
Subtenant to be kept, observed and performed, Subtenant shall peaceably and
quietly enjoy the Subleased Premises throughout the term of this Sublease
without hindrance by Sublessor, subject to the provisions of this Sublease, the
Xxxxxxxxx, and any matter to which this Sublease and the Xxxxxxxxx are or may be
subject and subordinate.
IN WITNESS WHEREOF, Sublessor and Subtenant have hereunto executed
this Sublease as of the day and year first above written.
CS FIRST BOSTON CORPORATION
By: [SIGNATURE APPEARS HERE] By: [SIGNATURE APPEARS HERE]
---------------------------- ----------------------------
Title: Managing Director Title: Director
XXXXXXX XXXXXXX, INC. D/B/A
AMERICAN HOME MORTGAGE
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Title: President
EXHIBIT A
---------
Subleased Premises
------------------
[GRAPH OF CS FIRST BOSTION FURNITURE PLAN APPEARS HERE]
CS First Boston: Corporate Services: Furniture Plan T49 - 028
EXHIBIT C
---------
Exhibit C
CLEANING AGREEMENT
------------------
AGREEMENT dated May 17. 1984 by and between Solstead Associates, a New York
limited partnership having an office c/o Solomon Equities, Inc., Suite 1401, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Contractor"), and THE FIRST BOSTON
CORPORATION, a Massachusetts corporation having an office at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Tenant is the tenant of the entire twenty-fifth through
forty-fourth rental floors (the "Premises") of the building (the "Building")
know as Tower 49 erected by Solstead Associates on East 49th Street, between
Fifth Avenue and Madison Avenue, New York, New York, pursuant to that certain
agreement of lease dated concurrently herewith between Solstead Associates and
Tenant (the "Lease""); and
WHEREAS, Tenant desires to obtain cleaning services for the Premises during
the term of the Lease; and
WHEREAS, Solstead Associates is desirous and willing to furnish the
cleaning services requested by Tenant throughout the term of the Lease or, at
the option of Solstead Associates, to assign this agreement to the manager of
the Building or to some other entity performing or arranging for such cleaning
services in the Building;
2
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Contractor and Tenant for themselves, their successors and assigns covenant and
agree as follows:
1. Contractor shall perform the cleaning services on business days (as
defined in Article 13 hereof) in the Premises as provided in (i) the Cleaning
Specifications which are annexed hereto, made a part hereof and incorporated
herein by reference and (ii) Article 16 hereof. Notwithstanding the foregoing,
Contractor will not be required to furnish any services:
(a) except as provided in the Cleaning Specifications and Article 16
hereof; and
(b) in any kitchen or food preparation area of the Premises, provided,
however, that any areas available to persons utilizing the food services
provided by such kitchen or food preparation area shall not be considered
part of the kitchen or food preparation area.
If Tenant shall desire additional cleaning services, Tenant shall pay
Contractor, as an additional cleaning fee hereunder, within ten (10) days after
demand therefor from Contractor, Contractor's actual out-of-pocket expenses
for such additional cleaning services plus fifteen percent (15%) of such
expenses for Contractor's administration costs. Contractor will furnish Tenant
with copies of such data as
3
Tenant may reasonably request to verify such out-of-pocket expenses. Contractor
represents that the quality of the cleaning services to be furnished hereunder
shall be comparable to that of the services of other contractors in first class
office buildings in the area of the Building. Contractor reserves the right to
employ such subcontractors as Contractor may from time to time determine.
2. The term of this agreement shall commence on the Commencement Date of
the Lease (as that term is defined therein) and shall expire upon the expiration
or sooner termination of the Lease (as provided therein). Tenant shall promptly
notify Contractor in writing if Tenant elects to renew the Lease after the
initial 15-year term thereof as provided in Section 1.03 of the Lease.
3. (a) Subject to the provisions of subdivision (b) of this Article
providing for adjustments of the fixed annual cleaning fee, Tenant shall pay to
Contractor a fixed annual cleaning fee for the services provided hereunder at
the annual rate of $610,000.00, which Tenant agrees to pay in equal monthly
installments in advance on the first day of each and every calendar month during
the term of this agreement. The fixed annual cleaning fee and any cleaning cost
escalation (as provided in Article 4 of this agreement) and all other charges
herein reserved or payable shall be payable to Contractor at the office of
Contractor or at such
4
other place as Contractor may designate, by a good and sufficient check draw on
a New York City bank which is a member of the New York Clearing House or a
successor thereto, without demand therefor and without any deduction, off-set or
abatement whatsoever, except as expressly provided herein. The fixed annual
cleaning fee shall be prorated and adjusted for any month during the term hereof
which is less than a full calendar month on a per diem basis.
(b) The fixed annual cleaning fee has been computed at the rate of $2.00
per year for each square foot of rentable space within the Premises. Contractor
and Tenant acknowledge that the Lease now provides that each full rental floor
in the Premises contains 15,250 rentable square feet. If pursuant to the
provisions of the Lease there shall be any redetermination of the rentable
square footage in the Premises and as a result thereof the fixed annual rental
under the Lease is adjusted. Contractor and Tenant shall make a corresponding
adjustment of the fixed annual cleaning fee payable hereunder at the rate of
$2.00 per square foot of rentable space in the Premises as so redetermined. The
fixed annual cleaning fee shall also be reduced at the rate of $2.00 for each
square foot of rentable space within Premises which shall be used as a kitchen
or food preparation area and for any portion of the Premises prior to the
initial occupancy thereof by Tenant or any other occupant claiming by
5
or through Tenant, so long as Contractor shall not be required by Tenant to
furnish cleaning services therein. The determination of the number of square
feet of rentable space contained within such kitchen or food preparation area or
such unoccupied area shall be made jointly by Contractor and Tenant as soon as
possible after the Commencement Date of the Lease and thereafter if there is any
change in such kitchen or food preparation area or such unoccupied area in which
Contractor shall not furnish cleaning services. If Contractor and Tenant are
unable to agree on such determination, either of them shall have the right to
have any dispute with respect to the foregoing determined by arbitration
pursuant to Article 8, which arbitration shall be by three (3) architects each
of whom shall have at least ten (10) years experience in the design,
construction and finishing of major office buildings in the City of New York.
Contractor and Tenant shall execute any amendment of this agreement which
may be required to effect the intent of this paragraph.
(c) If Tenant shall elect to occupy any portion of the Premises prior to
the Commencement Date as provided in Section 1.05 of the Lease, within five (5)
business days after receipt from Tenant of a written request therefor,
Contractor shall commence providing the cleaning services called for in this
agreement in those portions of the
6
Premises designated by Tenant in such request; provided that Tenant shall pay
Contractor for such services at the rate of $2.00 per year per rentable square
foot of such designated areas (which shall not include kitchen or food
preparation areas or unoccupied areas), payable in equal monthly installments,
in advance, on the first day of each calendar month (prorated on a per diem
basis for periods of less than a full calendar month) and shall also pay any
cleaning cost escalation, appropriately prorated on a per square foot basis for
such areas, which would have been payable had the term of this agreement
commenced, Any redetermination of or disagreement as to the number of square
feet in the areas so designated by Tenant shall be dealt with in accordance with
paragraph (b) of this Article as if the term of this agreement had commenced.
4. Tenant shall also pay to Contractor cleaning cost escalation in
accordance with this Article.
(a) Definitions: For the purpose of this Article, the following definitions
shall apply:
(i) Base Labor Rate" shall mean the Labor Rate (as defined in
subsection (ii) of this Section) for calendar year 1983 as presently contained
in the agreement between the Realty Advisory Board on Labor Relations, Inc. and
Local 32B-32J of the Building Service Employees International Union AFL-CIO,
which
7
Base Labor Rate shall not be changed in the event of any change hereafter made
in such agreement with respect to said labor rate for calendar year 1983 nor
affected by any cost of living adjustments provided for in such agreement.
(ii) "Labor Rate" shall mean the average hourly cost, inclusive of
allocations and apportionments of taxes and fringe benefits incident,
applicable, allocable or related thereto, for an hour's work by a xxxxxx engaged
to work full time, based on the minimum regular hourly wage rate for such
employment, determined as follows:
(x) The minimum regular hourly wage rate shall be the rate for
employment of porters in Class A office buildings from time to time
established by agreement between the Realty Advisory Board on Labor
Relations, Inc. and Local 32B-32J of the Building Service Employees
International Union AFL-CIO or by the successors to either or both of
them, which rate shall be used in computations under this Article 4 whether
or not porters' wages are actually paid by or for Contractor or by
independent contractors who furnish such services to the Premises.
8
(y) The term "porters" shall mean that classification of employee
engaged in the general maintenance and operation of office buildings most nearly
comparable to that classification now applicable to porters in the agreement in
force in 1983 with said Local 32B-32J (which classification is presently termed
"others" in said agreement).
(z) The term "fringe benefits" shall mean all fringe benefits,
including amounts for, allocable to or attributable to: pensions and welfare
funds; vacations, holidays, sick days, birthdays, jury duty, medical checkup,
lunch hours, relief time, "personal" days and other paid time off; bonuses; and
social security, unemployment, disability benefits, health, life, accident,
workmen's compensation and other types of insurance. If length of service shall
be a factor in determining any element of fringe benefits, it shall be
conclusively presumed that all employees have completed one year of service on
the last day of the calendar year reflected in the date of this agreement, plus
one additional year of service at the end of each calendar year thereafter
during the term hereof.
9
If there is no such union agreement in effect at any time during the term
hereof, then all computations and payments called for in this Article shall
nevertheless be made, but shall be made on the basis of the regular hourly wage
rates, plus taxes and fringe benefits incident, allocable, or applicable
thereto, actually being paid or accrued at such time by the Contractor, or by
the contractor performing the cleaning services for Contractor, for such
porters, and appropriate retroactive adjustment shall thereafter be made if and
when the minimum regular hourly wage rate pursuant to such agreement is finally
determined. If any such union agreement shall require the regular employment of
porters on days or during hours when overtime or other premium pay rates are in
effect, then the "regular hourly wage rate", as used above, shall be deemed to
mean the actual weekly wage rate, divided by the actual hours in a calendar week
during which such porters are required to be employed (if, for example, as of
October 1, 1985, such an agreement shall require the regular employment of
building porters for forty (40) hours during a calendar
10
week at a regular hourly wage rate of $4.00 for the first thirty (30)
hours, and premium or overtime hourly wage rate of $5.50 for the remaining
ten hours, then the "regular hourly wage rate" under this Article 4, as of
October 1, 1985, shall be deemed to be the total weekly wage rate of
$175,000 divided by forty (40), the total number of required hours of
employment, which equals $4,375).
(iii) "Contractor's Statement" means a statement certified by
Contractor or containing a computation of or information relating to any
cleaning cost escalation.
(iv) "Operation Year" means each calendar year that includes any part
of the term hereof.
(b) In the event that the Labor Rate in effect on the first day of any
Operation Year shall exceed the Base Labor Rate, Tenant shall pay to Contractor,
as an additional cleaning fee for such Operation Year, cleaning cost escalation
in an amount equal to the product obtained by multiplying (i) the percentage
increase between the said Labor Rate in effect on the first day of such
Operation Year and the Base Labor Rate by (ii) the fixed annual cleaning fee, By
or after the start of the first Operation Year and by or after the start of each
11
Operation Year thereafter, Contractor shall furnish to Tenant a Contractor's
Statement setting forth in reasonable detail a calculation of the Labor Rate in
effect on the first day of such Operation Year and the cleaning cost escalation,
if any, which shall be due hereunder from Tenant to Contractor, Any such
cleaning cost escalation shall be paid as provided in (c) below.
(c) Each annual amount of cleaning cost escalation due by reason of the
foregoing shall commence to be payable, in equal monthly installments, as of the
first day of the period for which the Labor Rate shall exceed the Base Labor
Rate. After Contractor shall furnish Tenant with a Contractor's Statement
relating to any increase in the Labor Rate, such monthly installments of
cleaning cost escalation, equal to one-twelfth (1/12) of the annual amount
determined above, shall be paid by Tenant to Contractor until a new change takes
place in the Labor Rate. In the event that the Contractor's Statement is
furnished to Tenant after the commencement of the relevant Operation Year, there
shall be promptly paid by Tenant to Contractor any additional amount of cleaning
cost escalation theretofore accrued or allocable to the period prior to the
furnishing of the said Contractor's Statement. In the event Tenant shall have
made any overpayment of cleaning cost escalation because
12
a Contractor's Statement is furnished to Tenant after a downward change in the
Labor Rate, the amount of such overpayment shall be promptly refunded to Tenant.
In the event that the Labor Rate shall be changed or shall change more
frequently than once a year, the adjustment hereunder shall similarly be made by
Contractor in an additional Contractor's Statement furnished by Contractor, so
as to reflect such change in the monthly installments of cleaning cost
escalation, as of the effective date of each such change. In the event the fixed
annual cleaning fee shall be adjusted pursuant to Article 3(b), from and after
the effective date of such adjustment, the cleaning cost escalation, if any, for
the remaining portion of the relevant Operation Year shall be recalculated using
such new fixed annual cleaning fee and Contractor shall furnish Tenant with a
Contractor's Statement setting forth such recalculation. Any additional amount
or overpayment of cleaning cost escalation resulting from such recalculation
shall be promptly paid by or refunded to Tenant, as applicable.
(d) The Contractor's Statements thus furnished to Tenant shall constitute a
final determination as between Contractor and Tenant of the Labor Rate and
cleaning cost escalation for the periods represented thereby, unless Tenant
within six (6) months after they are furnished
13
shall give a notice to Contractor that it disputes their accuracy, which notice
shall specify the respects in which the statement is inaccurate. Pending the
resolution of such dispute, Tenant shall pay the cleaning cost escalation to
Contractor in accordance with the statements furnished by Contractor. Any such
dispute as to the accuracy of the calculations in said statements shall be
resolved by arbitration in accordance with the provisions of Article 8 hereof,
which arbitration shall be by three (3) arbitrators each of whom shall have at
least ten (10) years' experience in the supervision of the operation and
management of major office buildings in Manhattan. Whenever a dispute is to be
determined by arbitration as provided anywhere in this agreement, pending such
determination, Tenant shall pay to Contractor the full amount claimed without
diminution, abatement or offset. If the dispute is determined favorably to
Tenant. Contractor shall be obligated to pay to Tenant, within ten (10) days
after service upon Contractor of the notice of such determination, the full
amount of such diminution, abatement or offset to which the Tenant was entitled,
together with interest thereon at the rate publicly announced by Citibank, N.A.
as its "base rate" on the date on which Tenant paid the amount being recovered,
from the date Tenant paid such amount to
14
Contractor to the date Tenant is paid the entire amount due to Tenant, failing
which Tenant shall have the right to offset such amount against the installments
of fixed annual cleaning fee next falling due hereunder.
(e) If the commencement date of the term of this agreement is not the first
day of an Operation Year, then, subject to any later changes in the Labor Rate,
the cleaning cost escalation due hereunder for the Operation Year in which such
commencement date occurs shall be a proportionate share of said cleaning cost
escalation for the entire Operation Year, said proportionate share to be based
upon the length of time that the term hereof shall be in existence during such
Operation Year. Upon the date of any expiration or termination of this
agreement, whether the same be the date hereinabove set forth for the expiration
of the term hereof or any prior or subsequent date, a proportionate share of
said cleaning cost escalation for the Operation Year during which such
expiration or termination occurs shall immediately become due and payable by
Tenant to Contractor, if it was not theretofore already billed and paid. The
said proportionate share shall be based upon the length of time that the term
hereof shall have been in existence during such Operation Year. Any cleaning
cost escalation paid by Tenant in respect of the period from and after
15
such expiration or termination shall be promptly refunded to Tenant. Prior to or
promptly after said expiration or termination, Contractor shall compute the
cleaning cost escalation, if any, due from or payable to Tenant, as aforesaid,
which computations shall either be based on that Operation Year's Labor Rate(s)
or, if the same shall then be unavailable for any reason beyond Contractor's
control, on an estimate based upon the most recent Contractor's Statements. If
an estimate is used then Contractor thereafter, when the same becomes known,
shall cause statements to be prepared on the basis of that Operation Year's
Labor Rate(s). Upon Contractor's furnishing such statement to Tenant, Contractor
and Tenant shall make appropriate adjustments of amounts then owing.
(f) Contractor's and Tenant's obligation to make the adjustments and
payments referred to in subdivisions (c), (d) and (e) above shall survive any
expiration or termination of this agreement. Any delay or failure of Contractor
in billing for any cleaning cost escalation payable as hereinabove provided
shall not constitute a waiver of or in any way impair the continuing obligation
of Tenant to pay such cleaning cost escalation hereunder. In no event shall the
fixed annual cleaning fee as set forth in Article 3 of this agreement be reduced
by virtue of this Article 4.
16
5. In the event that Tenant claims that Contractor has not or is not
complying with each and all of the terms and provisions of Article 1 of this
agreement, Tenant may serve notice to that effect upon Contractor, specifying
the respects in which such non-compliance is claimed. If at the expiration of
ten (10) days after the giving of such notice, Tenant is still of the opinion
that Contractor has not cured the non-compliance, or at any time thereafter
Tenant is of the opinion that the non-compliance has recurred, Tenant may demand
that the question of whether or not Contractor is so complying be settled by
arbitration in accordance with the provisions of Article 8 hereof. If a majority
of the arbitrators shall determine that Contractor is not so complying, then
Contractor shall have ten (10) days after the rendering of such decision in
which to effect such compliance. If the arbitrators shall specifically hold in
their decision that the performance of an affirmative act or acts required by
Contractor in order to effect such compliance is not reasonably possible within
the said ten (10) days and shall certify the time within which Contractor must
comply, then Contractor shall comply within the time so specified. In the event
that Contractor shall fail to effect such compliance as hereinbefore provided,
then Tenant may serve upon Contractor a ten (10) day notice of cancellation of
this agreement. Upon the expiration of said ten (10)
17
days, this agreement and the term hereunder shall end and expire as fully and
completely as if the date of expiration were the day herein fixed for the end
and expiration of this agreement and the term hereof. In such event, the fixed
annual cleaning fee and all cleaning cost escalation payable hereunder shall be
adjusted and prorated between Contractor and Tenant as of the date of
termination. Upon such termination, Tenant acknowledges that the provisions of
Section 14.01 of the Lease shall become operative and Contractor shall have no
further responsibility to Tenant hereunder.
6. If Tenant defaults in making any payment of the fixed annual cleaning
fee or cleaning cost escalation as provided in Articles 3 and 4 hereof,
Contractor shall have the right to serve a fifteen (15) day notice upon Tenant
specifying said default and upon the expiration of said fifteen (15) days, if
Tenant shall have failed to remedy such default, then Contractor may serve a ten
(10) day notice of cancellation of this agreement upon Tenant, and, upon the
expiration of said ten (10) days, this agreement and the term hereof shall end
and expire as fully and completely as if the date of expiration of such ten (10)
day period were the day herein definitely fixed for the end and expiration of
this agreement and the term hereof. In such event, the fixed annual cleaning fee
and all cleaning cost escalation payable
18
hereunder shall be adjusted and pro rated between Contractor and Tenant as of
the date of such termination. Upon such termination, Tenant acknowledges that
the provisions of Section 14.01 of the Lease shall become operative and neither
party shall have any further responsibility to the other accruing hereunder
thereafter, except that Tenant shall remain liable to Contractor for any fixed
annual cleaning fee and cleaning cost escalation which shall have accrued prior
to such termination and shall not have been paid by Tenant to Contractor.
7. Any notice or demand, consent, approval or disapproval, or statement
required to be given by the terms and provisions of this agreement, or by any
law or governmental regulation, either by Contractor to Tenant or by Tenant to
Contractor, shall be in writing. Unless otherwise required by such law or
regulation such notice or demand shall be given, and shall be deemed to have
been served and given by Contractor and received by Tenant, upon actual receipt
by Tenant or, if earlier, on the second day following the day when Contractor
shall have deposited such notice or demand by registered or certified mail
enclosed in a securely closed post-paid wrapper, in a United States Government
general or branch post office, or official depository with the exclusive care
and, custody thereof, addressed to Tenant, attention of the Corporate Secretary,
at the address set
19
forth after Tenant's name of page 1 of this agreement. After Tenant shall occupy
the Premises, the address of Tenant for notices, demands, consents, approvals or
disapprovals shall be the Building. Such notice, demand, consent, approval or
disapproval shall be given, and shall be deemed to have been served and given by
Tenant and received by Contractor, upon actual receipt by Contractor or, if
earlier, on the second day following the day when Tenant shall have deposited
such notice or demand by registered or certified mail enclosed in a securely
closed post-paid wrapper, in a United States Government general or branch post
office, or official depository with the exclusive care and custody thereof,
addressed to Contractor at the address set forth after Contractor's name on page
one of this agreement. Either party may, by notice as aforesaid, designate a
different address or addresses and an additional party for notices, demands,
consents, approvals or disapprovals.
8. (a) Every dispute between the parties which is expressly provided
in this agreement to be determined by arbitration shall be resolved in the
manner provided in this Article.
(b) Either party may request arbitration of any such matter in
dispute. The party requesting arbitration shall do so by giving notice to that
effect to the other party, specifying in said notice the name and address of the
20
person designated to act as an arbitrator on its behalf. Within fifteen (15)
days after the service of such notice, the other party shall give notice to the
first party specifying the name and address of the person designated to act as
an arbitrator on its behalf. If the second party fails to notify the first party
of the appointment of its arbitrator, as aforesaid, within the time above
specified, then the appointment of the second arbitrator shall be made in the
same manner as hereinafter provided for the appointment of a third arbitrator in
a case where the two arbitrators appointed hereunder and the parties are unable
to agree upon such appointment. The two arbitrators so chosen shall meet within
ten (10) days after the second arbitrator is appointed. If the two arbitrators
shall not agree upon the question in dispute, they shall together appoint a
third arbitrator. In the event of their being unable to agree upon such
appointment within thirty (30) days after the appointment of the second
arbitrator, the third arbitrator shall be selected by the parties themselves if
they can agree thereon within a further period of fifteen (15) days. If the
parties do not so agree, then either party, on behalf of both and on notice to
the other, may request such appointment by the American Arbitration Association
(or any organization successor thereto) in accordance with its rules then
prevailing or if the American Arbitration Association (or
21
such successor organization) shall fail to appoint said third arbitrator within
fifteen (15) days after such request is made, then either party may apply, on
notice to the other, to the Supreme Court in the County of New York (or any
other court having jurisdiction and exercising functions similar to those now
exercised by said Court) for the appointment of such third arbitrator, and the
other party shall not raise any question as to such court's full power and
jurisdiction to entertain the application and make the appointment. Each
arbitrator chosen or appointed pursuant to this Section shall be a person having
at least ten (10) years experience in the County of New York in a calling
connected with the dispute and the third arbitrator shall be disinterested and
such arbitrator shall be the only arbitrator who must be disinterested.
(c) The arbitration shall be conducted, to the extent consistent with this
Article, in accordance with the then prevailing rules of the American
Arbitration Association (or any organization successor thereto) in the City and
County of New York. The arbitrators shall have the right to retain and consult
experts and competent authorities skilled in the matters under arbitration. The
arbitrators shall render their decision and award, upon the concurrence of at
least two of their number, within sixty (60) days after the appointment of the
third arbitrator. Such decision and award
22
shall be in writing and counterpart copies thereof shall be delivered to each of
the parties. In rendering such decision and award, the arbitrators shall not add
to, subtract from or otherwise modify the provisions of this agreement.
Judgment may be had on the decision and award of the arbitrators so rendered and
may be enforced in accordance with the laws of the State of New York. If for any
reason whatsoever the written decision and award of the arbitrators shall not be
rendered with sixty (60) days after the appointment of the third arbitrator,
either party may apply to the Supreme Court of the State of New York or to any
other court having jurisdiction and exercising the functions similar to those
now exercised by such court, by action, proceeding or otherwise (but not by a
new arbitration proceeding) as may be proper to determine the question in
dispute consistently with the provisions of this agreement. Each shall pay the
fees and expenses of the one of the two original arbitrators appointed by or for
such party and the fees and expenses of the third arbitrator and all other
expenses of the arbitration shall be borne by the parties equally. However, each
party shall bear the expense of its own counsel, experts and presentation of
proof.
9. (a) If, by reason of (1) strike, (2) labor troubles, (3)
governmental pre-emption in connection with a national emergency, (4) any rule,
order or regulation of any
23
governmental agency, (5) conditions of supply or demand which are affected by
war or other national, state or municipal emergency, or (6) any cause beyond
Contractor's control, Contractor shall be unable to fulfill its obligations
under this agreement or shall be unable to supply any service which Contractor
is obligated to supply, this agreement shall in no way be affected except that
Tenant shall be entitled to (i) an abatement of the fixed annual cleaning fee
and cleaning cost escalation to the extent of the allocable charge per square
foot and the related cleaning cost escalation for any space covered hereunder in
which Contractor shall be unable to fulfill its obligations or supply the
services required hereunder for any period during which such condition shall
exist and/or (ii) an equitable reduction of the fixed annual cleaning fee and
cleaning cost escalation for any space covered hereunder in which Contractor
shall perform some, but not all, of its obligations and services for any period
during which Contractor shall be unable to supply such services or fulfill such
obligations. Any dispute as to the amount of equitable reduction of fixed
annual cleaning fee and cleaning cost provided for hereunder shall be resolved
by arbitration in accordance with the provisions of Article 8 hereof. As
Contractor shall learn of the happening of any of the foregoing conditions,
Contractor shall promptly notify Tenant of such event and, if ascertainable, its
estimated
24
duration and will proceed promptly and diligently with the fulfillment of its
obligations as soon as reasonably possible.
(b) If and for so long as all or any portion of the Premises shall
be Untenantable, as such term is defined in the Lease, if Tenant shall notify
Contractor of such condition and shall request Contractor to suspend cleaning in
such areas, Contractor shall so suspend such cleaning for the duration of such
condition and there shall be an equitable abatement of the fixed annual cleaning
fee and any cleaning cost escalation payable in respect of such Untenantable
space for the duration of such suspension.
10. (a) Contractor shall supply competent supervisory personnel,
proper cleaning materials, implements, machinery and cleaning supplies (except
as may be herein other wise specified) for the satisfactory performance of all
services. Contractor agrees to supply all of its employees with clean and neat
uniforms and to keep these uniforms in good condition and repair, replacing them
at sufficient intervals to maintain a constant, well-groomed appearance.
(b) It is understood that, on infrequent occasions, certain cleaning
in certain limited areas involving less than an entire floor, such as a meeting
or board room, conference room, private dining room, auditorium, cafeteria or
the offices of the top management of Tenant, may be required by Tenant other
than or the regularly scheduled times therefor.
25
Tenant shall use reasonable efforts to communicate to Contractor's supervisory
personnel Tenant's special knowledge and awareness of cleaning which
unexpectedly becomes necessary from time to time and Contractor shall cause its
supervisory personnel to cooperate fully with Tenant so as to seek to achieve
the desired results of having all areas of the Premises clean and presentable.
(c) All labor, materials, equipment and supervision shall be to the
reasonable satisfaction of Tenant.
11. Except for claims arising out of acts caused by the negligence of
Tenant or its agents, servants, employees or representatives, Contractor hereby
indemnifies and agrees to hold harmless and defend Tenant against any claims,
expenses and liabilities arising out of the furnishing of Contractor's services
hereunder or out of any default by Contractor hereunder or out of any act of
negligence of Contractor or its agents, employees or licensees in connection
with this agreement. This indemnity agreement shall also include the defense of
Tenant by counsel, reasonably satisfactory to Tenant, and the payment of all
reasonable legal fees by Contractor. The foregoing provisions of this Article
shall survive the expiration or termination of this agreement.
12. Contractor shall supply Workmen's Compensation Insurance,
Disability Insurance, Commercial Blanket Fidelity
26
Bond and Comprehensive General Public Liability Insurance, including Contractual
Liability Insurance, in amounts reasonably satisfactory to Tenant, and
certificates evidencing such insurance and payment of the premiums therefor
shall be furnished to Tenant upon request. Such insurance shall be issued by
companies qualified to do business in New York and reasonably satisfactory to
Tenant. Contractor shall comply with all requirements of governmental
authorities and shall furnish to Tenant upon request copies of all permits and
licenses required.
13. As used herein "business days" shall mean all days except
Saturdays, Sundays and the days observed by the Federal or the New York State or
City governments as legal holidays and such other days as shall be designated as
holidays by the applicable operating engineers union or building service
employees union contract. Notwithstanding the foregoing, any day on which the
New York Stock Exchange or commercial banks in the City of New York are open for
business shall constitute a business day.
14. If Tenant shall not pay any fixed annual cleaning fee or cleaning
cost escalation within ten (10) days after the same shall be due hereunder,
Tenant shall pay to Contractor a late charge in an amount equal to the rate of
interest publicly announce, from time to time, by Citibank, N.A. as its "base
rate", on the date on which such payment
27
was due for the period from the date on which the fixed annual cleaning fee or
cleaning cost escalation, as the case may be, was due until the date of payment
thereof by Tenant to Contractor.
15. At the request of Tenant, Contractor shall endeavor to employ a
limited number of individuals designated by Tenant for the purpose of providing
certain of the cleaning services specified hereunder, provided that such
individuals shall comply with all union and other legal requirements for
employment by Contractor.
16. Contractor shall remove all refuse and rubbish including, without
limitation, refuse commonly referred to as "wet garbage", related to Tenant's
vending machines and eating facilities requiring special handling ("Wet
Garbage") in connection with the cleaning services to be provided hereunder upon
and subject to the following terms and conditions:
(a) All Wet Garbage shall be deposited by Tenant in a location in the
Building designed by the landlord under the Lease adjacent to the freight
elevator on the floor on which Tenant's kitchen, food service or food
preparation area is located;
(b) All Wet Garbage shall be contained in sealed reinforced bags or
receptacles of customary office size for Wet Garbage; and
28
(c) Tenant shall pay to Contractor, as an additional cleaning fee
hereunder, within ten (10) days after demand therefor from Contractor,
Contractor's actual out-of-pocket expenses for carting the Wet Garbage
plus fifteen percent (15%) of such expenses for Contractor's administration
costs. Contractor will furnish Tenant with copies of such data as Tenant
may reasonably request to verify the carting expenses specified in this
subparagraph (c).
17. This agreement shall bind, and inure to the benefit of, the
parties hereto and their respective successors and assigns, and shall be
construed in accordance with the laws of the State of New York.
18. This agreement sets forth the entire understanding of the parties
hereto with respect to the subject matter hereof and this agreement may not be
amended or modified, nor may any provision hereof be waived, except by a writing
signed by the party to be charged. Any such amendment, modification or waiver
shall be effective only in the specific instance and for the purpose for which
given.
19. It is expressly agreed and understood that Solstead Associates, as
the initial Contractor and the initial landlord under the Lease, shall have the
right to assign its rights and obligations under this agreement to (a) any
affiliate (as such term is defined in the Lease) of
29
Solstead Associates that is acting as manager of the Building or supplying
cleaning services to the Building or (b) any reputable independent cleaning
contractor capable of providing the cleaning services called for in this
agreement in a manner commensurate with the status of the Building as a
first-class office building in the midtown east area of Manhattan; provided that
any such assignee shall assume in writing the obligations of the Contractor
hereunder.
IN WITNESS WHEREOF, Contractor and Tenant have duly executed this agreement on
the date first above written.
SOLSTEAD ASSOCIATES
By: Plaza 49 Associates, a General Partner
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
General Partner
THE FIRST BOSTON CORPORATION
By /s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx
Managing Director
Cleaning Specifications
-----------------------
GENERAL CLEANING:
NIGHTLY - BUSINESS DAYS
General Offices:
1. All hardsurfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpeted areas, moving only light furniture
(desks, file cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures, baseboards and
window xxxxx.
4. Empty and wipe clean all ash trays and screen all sand urns.
5. Empty all wastepaper receptacles and remove wastepaper.
6. Dust interiors of all wastepaper disposal cans and baskets.
7. Wash clean all water fountains and coolers.
8. Sweep all private stairways.
Lavatories:
1. Sweep and wash all floors, using an odorless detergent.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Paper towel and sanitary receptacles emptied and cleaned.
7. Fill toilet tissue holders and soap dispensers.
2
WEEKLY
1. Vacuum clean all carpeting and rugs, including those on stairs, if any.
2. dust all vertical surfaces such as walls, partitions, door louvers and
other surfaces within a person's reach.
3. Wipe clean all interior metal and remove fingermarks.
EVERY OTHER MONTH
High dust premises if required, including the following:
1. Dust all pictures, frames, charts, graphs and similar wallhangings not
reached in nightly cleaning.
2. Dust clean all vertical surfaces such as walls, partitions, doors, ducts
and other surfaces not reached in nightly or weekly cleaning.
3. Dust all pipes, ventilating and air-conditioning louvers, ducts, high
mouldings and other high areas not reached in nightly or weekly cleaning.
4. Dust all venetian blinds and window frames.
