EXHIBIT 10.4
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SUBLEASE
BETWEEN
▇▇▇▇ & ▇▇▇▇▇, INC. AND GRAYSLER
CORPORATION
AS LANDLORD
AND
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
AS TENANT
----------
Dated, December 30, 1957.
Affecting Premises on the Westerly side of Lexington Avenue,
253 feet 4-inches Northerly of ▇▇▇▇ ▇▇▇▇▇▇
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Recorded in the Office of the Register of the City of New York in New York
County on December 31, 1957 in Liber 5024 of Conveyances at Page 430.
The Landlord's interest in the within Sublease was acquired by Metropolitan
Life Insurance Company by Assignment from ▇▇▇▇ & ▇▇▇▇▇, Inc. and Graysler
Corporation dated December 30, 1957 and recorded in said Register's Office on
December 31, 1957 in Liber 5024 of Conveyances at Page 613.
The Tenant's interest in the within Sublease was assigned by
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇▇ ▇. Wien by Assignment dated December 30, 1957 and
recorded in said Register's Office on December 31, 1957 in Liber 5024 of
Conveyances at Page 621.
TABLE OF CONTENTS
PAGE
ARTICLE 1.
Definitions, Demise and Initial Term ..................... 1
ARTICLE 2.
Rent .................................................... 6
ARTICLE 3.
Payment of Taxes, Assessments, etc. ...................... 8
ARTICLE 4.
Surrender ............................................... 12
ARTICLE 5.
Insurance ................................................ 14
ARTICLE 6.
Landlord's Right TO Perform Tenant's Covenants ........... 19
ARTICLE 7.
Repairs and Maintenance of the Property, Steam
and Electricity ....................................... 20
ARTICLE 8.
Compliance with Laws, Ordinances, etc. ................... 23
ARTICLE 9.
Changes and Alterations .................................. 25
ARTICLE 10.
Discharge of Liens ....................................... 28
ARTICLE 11.
Use of Property .......................................... 29
ii TABLE OF CONTENTS
PAGE
ARTICLE 12.
Ground Lease ............................................. 30
ARTICLE 13.
Entry on Property by Landlord, etc. ...................... 32
ARTICLE 14.
Indemnification of Landlord .............................. 33
ARTICLE 15.
Damage or Destruction .................................... 34
ARTICLE 16.
Condemnation ............................................. 38
ARTICLE 17.
Vault Space .............................................. 46
ARTICLE 18.
Mortgages, Assignments, Subleases and Transfers
of Tenant's Interest ................................... 47
ARTICLE 19.
Conditional Limitations--Default Provisions .............. 63
ARTICLE 20.
Renewal Privileges ....................................... 69
ARTICLE 21.
Invalidity of Particular Provisions ...................... 73
ARTICLE 22.
Notices .................................................. 73
ARTICLE 23.
Condition of and Title to Property, Quiet Enjoyment ...... 74
TABLE OF CONTENTS iii
PAGE
ARTICLE 24.
Excavation and Shoring ................................... 75
ARTICLE 25.
Arbitration and Appraisal ................................ 76
ARTICLE 26.
Miscellaneous ............................................ 78
SCHEDULES:
A. Description of Grant of Term ....................... 82
B. Description of Ground Lease ........................ 83
C. Schedule for Determination of Amounts
Payable to Landlord Under Section 16.03 ........... 84
THIS LEASE, dated the 30th day of December, 1957, between ▇▇▇▇ & ▇▇▇▇▇,
INC., a corporation duly organized and existing under the laws of the State of
Delware, having an office and place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
17,
New York, and GRAYSLER CORPORATION, a corporation duly organized and
existing under the laws of the State of
New York, having its office and
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ 17,
New York,
(hereinafter collectively called the "Landlord") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, residing
at ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, (hereinafter called the
"Tenant").
W I T N E S S E T H :
ARTICLE 1
DEFINITIONS, DEMISE AND INITIAL TERM
That for purposes of this lease, unless the context otherwise requires:
(a) the term "Grant of Term" shall mean instrument described in
Schedule A annexed hereto;
(b) the term "Ground Lease" shall mean the instrument described in
Schedule B annexed hereto;
(c) the term "Ground Lessor" shall mean the lessor under the Ground
Lease, and the term "Ground Lessee" shall mean the lessee under the Ground
Lease;
(d) the term "Ground Rent" shall mean the rental payable under the
Ground Lease and therein defined as the "Ground Rental";
(e) the term "Building" shall have the meaning ascribed thereto in the
Ground Lease;
(f) the term "Demised Premises" shall mean the premises in the Borough
of Manhattan, City and State
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of
New York, demised by the Ground Lease, located generally on the westerly
side of Lexington Avenue (beginning at a point 253 feet 4 inches northerly
of 42nd Street) and known as the Graybar Building and by the street address
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, together with any easements and other rights demised
or otherwise provided for the benefit of the Ground Lessee under the Ground
Lease;
(g) the term "Tenant" shall mean the tenant named herein, and from and
after any valid assignment of the whole of tenant's interest in this lease
pursuant to the provisions hereof, shall mean only the assignee thereof;
(h) the term "Landlord" shall mean only the lessee for the time being
under the Ground Lease;
(i) the term "Railroad Company" shall mean the
New York Central
Railroad Company or its successors or assigns as grantor under the Grant of
Term;
(j) the term "subtenant" shall mean any tenant or licensee of any
space in the Demised Premises (other than Tenant or a Total Subtenant); the
term "
sublease" shall mean any lease (other than this Lease or the Ground
Lease or a total
sublease) or other agreement for the use and occupancy of
any such space; the term "subrent" shall mean any rent or other charge for
such use or occupancy under a
sublease; the term "existing
sublease" shall
mean any
sublease made before the date of this lease; and the term "future
sublease" shall mean any sublease made on or after said date;
(k) The term "major sublease" shall mean any sublease having a term
(including renewal options) of 6 years or more or providing for a fixed
subrent at the rate of $50,000 or more per annum during any year of the
term thereof. For purposes of this
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definition, any two or more subleases with the same person, as subtenant,
shall be deemed to be a single sublease providing for a fixed subrent at
the aggregate rate per annum specified in such leases;
(l) the term "total sublease" shall mean a lease made by Tenant of all
or substantially all of the Demised Premises and the term "Total Subtenant"
shall mean the tenant under such lease;
(m) the term "term of this lease" or words of similar import shall
mean the initial term and any renewal term which has become effective;
(n) the term "Leasehold Mortgagee" shall mean the holder of a mortgage
on this lease or the trustee under a deed of trust of this lease securing
bonds or notes issued by Tenant, and the term "Leasehold Mortgage" shall
mean any such mortgage or deed of trust.
That Landlord is the Ground Lessee under the Ground Lease; and
That Landlord, for and in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of Tenant, its
successors and assigns, to be paid, kept and performed, does hereby demise and
lease to Tenant, and Tenant does hereby take and hire from Landlord, the Demised
Premises,
SUBJECT, however, to the following:
(1) the Grant of Term;
(2) the Ground Lease;
(3) state of facts shown on the survey made by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
dated March 4, 1927, and of J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, dated March 28, 1944
(using lines of plot set forth in record description) drawn and redated to
June 1, 1950 by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
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redated by ▇▇▇▇ ▇. ▇▇▇▇▇▇-▇. ▇. ▇▇▇▇▇▇▇, Inc., as of September 18, 1953,
redated November 10, 1955 by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and redated by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ May 24, 1957, and any additional state of facts which an
inspection and more recent accurate survey would show;
(4) easements granted to the City of
New York by instrument recorded
in the Office of the Register of the County of
New York in Liber 193,
Section 5 of Conveyances, page 38, as amended by instrument recorded in
said Register's Office in Liber 191, Section 5 of Conveyances, page 478;
and restrictive agreement recorded in said Register's Office in Liber 3850
of Conveyances, page 488, as modified by agreements set forth in
instruments recorded, respectively, in said Register's Office in Liber 3932
of Conveyances, page 131, and Liber 3983 of Conveyances, page 380;
(5) Impositions (as defined in Article 3 hereof), accrued or
unaccrued, fixed or not fixed;
(6) revocable nature of any rights, easements, licenses or privileges
to use vaults, areas, tunnels, ramps or structures under streets, avenues
or sidewalks on which the Demised Premises abut;
(7) consents or grants prior to the date of this lease for the
erection of any structures on, under or above said streets or avenues and
grants, licenses or consents, if any, with respect to public utility lines
and equipment;
(8) right to maintain elevators from the Newsreel Theatre beneath the
Demised Premises, as provided in lease recorded in Liber 3944 of
Conveyances, page 417, as modified by instrument recorded in Liber 4407 of
Conveyances, page 477;
(9) existing subleases and the rights of the subtenants thereunder, it
being intended that the leasehold estate of Tenant created by this lease
shall be subject and subordinate to the leasehold estates of said
subtenants created by said subleases, notwithstanding
5
the provisions of any clause in any such sublease purporting to subordinate
such sublease and the rights of the subtenant thereunder to ground or
underlying leases, and Landlord hereby assigns to Tenant for the term of
this lease all its right, title and interest in and to such existing
subleases and (subject to any existing assignments thereof) the rents and
profits due or to become due to Landlord under the provisions thereof.
(10) building restrictions and regulations in resolution or ordinance
adopted by Board of Estimate and Apportionment of the City of
New York, on
July 25, 1916, and the amendments and additions thereto, now in force;
(11) present and future zoning laws, ordinances, resolutions and
regulations of the City of New York and all present and future ordinances,
laws, regulations and orders of all boards, bureaus, commissions and bodies
of any municipal, county, state or federal sovereigns now or hereafter
having or acquiring jurisdiction of the Demised Premises and the use and
improvement thereof;
(12) revocable nature of the right, if any, to maintain marquees or
signs, beyond the building lines;
(13) the effect of all present and future municipal, state and federal
laws, orders and regulations relating to subtenants, their rights and
rentals to be charged for the use of the Demised Premises or any portion or
portions thereof;
(14) violations of law, ordinances, orders or requirements that might
be disclosed by an examination and inspection or search of the Demised
Premises by any federal, state or municipal departments or authority having
jurisdiction, as the same may exist on the date of the commencement of the
term of this lease;
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(15) the condition and state of repair of the Demised Premises as the
same may be on the date of the commencement of the term of this lease;
(16) any defects of title or encumbrances of record or encroachments,
existing at the date of the commencement of the term of this lease;
TO HAVE AND TO HOLD the same, subject as aforesaid, unto Tenant, and,
subject to the provisions hereof, its successors and assigns, for an initial
term of eighteen years, five months and two days commencing on December 30,
1957, and expiring on May 30, 1976, unless this lease shall sooner terminate as
hereinafter provided.
This lease is made upon the following covenants, agreements, terms,
provisions, conditions and limitations, all of which Tenant covenants and agrees
to perform and observe:
ARTICLE 2
RENT
SECTION 2.01. Tenant convenants and agrees to pay to Landlord, in such coin
or currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, at Landlord's address
specified in or furnished pursuant to Section 22.01 hereof, during the aforesaid
initial term, a net rental of One Million Six Hundred Twenty Thousand Dollars
($1,620,000) per annum.
Such net annual rental (hereinafter called the "net rent") shall be in
addition to all other payments to be made by the Tenant as hereinafter provided
and shall be paid in equal monthly installments of One Hundred Thirty Five
Thousand Dollars ($135,000), each in advance on the first day of each calendar
month during the term of this lease; provided, however, that the net rent
payable in respect of the period from the date of commencement of
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said initial term to January 1, 1958, shall be Three Thousand Dollars ($3,000)
per diem and shall be paid on said commencement date.
Tenant covenants and agrees to pay to Landlord, in like coin or currency,
at said address and at least 5 days before the same shall become due under the
Ground Lease, a sum or sums equal to each installment of the Ground Rent;
provided, however, that Landlord may, by written notice, require Tenant to pay
the Ground Rent directly to the Ground Lessor on or before the due date thereof,
in which event Tenant shall furnish to Landlord receipts for such payments.
SECTION 2.02. It is the purpose and intent of Landlord and Tenant that the
net rent shall be net to Landlord, so that this lease shall yield, net, to
Landlord, the net rent specified in Section 2.01 hereof in each year during the
initial term of this lease and the net rent specified in Article 20 hereof in
each year during each renewal term hereof, if renewed as provided in said
Article 20, and that all costs, expenses and charges of every kind and nature
relating to the Demised Premises (except the taxes of Landlord referred to in
Section 3.02 of Article 3 hereof and any payments on account of interest or
principal under any mortgage or deed of trust which shall be a lien on the fee
of the premises of which the Demised Premises are a part, or on the estate
created by the Grant of Term, or on the leasehold estate created by the Ground
Lease) which may arise or become due during or out of the term of this lease
shall be paid by Tenant, and that Landlord shall be indemnified and saved
harmless by Tenant from and against the same.
SECTION 2.03. The net rent shall be paid to Landlord without notice or
demand and without abatement, deduction or set-off, except as otherwise
expressly provided in this lease.
8
SECTION 2.04. Tenant will pay, as additional rent, and (except as may be
otherwise expressly provided in this lease) without notice, abatement, deduction
or set-off, the Ground Rent and all other sums, Impositions (as defined in
Article 3 hereof), costs, expenses and other payments which Tenant in any of the
provisions of this lease assumes or agrees to pay, and, in the event of any
non-payment thereof, Landlord shall have (in addition to all other rights and
remedies) all the rights and remedies provided for herein or by law in the case
of non-payment of the net rent.
If Tenant shall pay to Landlord the additional rent payable hereunder in
respect of Ground Rent or Impositions before Landlord shall be required to pay
the same pursuant to the Ground Lease, Landlord agrees to receive and hold the
additional rent so paid in a fiduciary capacity and to apply the same to the
payment of such Impositions and Ground Rent pursuant to the Ground Lease.
ARTICLE 3
PAYMENT OF TAXES, ASSESSMENTS, ETC.
SECTION 3.01. Subject to the provisions of Sections 3.02 and 3.04 hereof,
Tenant shall pay to Landlord, at least 5 days before the last date when the same
may be paid by Landlord pursuant to Paragraph First of the Ground Lease, all
amounts payable by Landlord pursuant to said Paragraph in respect of taxes,
charges, assessments, and water and sewer rents and Tenant shall also pay before
any fine, penalty, interest or cost may be added thereto, or become due or be
imposed by operation of law for the nonpayment thereof, any and all other taxes,
assessments, rents, rates, charges for public utilities, excises, levies, vault
and all other license and permit fees and other governmental charges, general
and special, ordinary and extraordinary, unforeseen and foreseen, of any kind
and nature whatsoever which at any
9
time prior to or during the term of this lease may be assessed, levied,
confirmed, imposed upon, or grow or become due and payable out of or in respect
of, or become a lien on, the Demised Premises or any part thereof or any
appurtenance thereto, the income received from any subtenant or Total Subtenant,
any use or occupation of the Demised Premises, and such franchises as may be
appurtenant to the use of the Demised Premises, this transaction or any document
to which Tenant is a party creating or transferring an interest or estate in the
Demised Premises, (all such taxes, assessments, rents, rates, excises, levies,
fees and other charges being hereinafter referred to as "Impositions", and any
of the same being hereinafter referred to as an "Imposition").
SECTION 3.02. Nothing herein contained shall require Tenant to pay income
taxes or corporation franchise or excess profits taxes or estate, inheritance,
succession or transfer taxes or capital levies assessed against or imposed upon
Landlord; provided, however, that if at any time during the term of this lease
the methods of taxation prevailing at the commencement of the term hereof shall
be altered so as to cause the whole or any part of the taxes, assessments,
levies, impositions or charges now or hereafter levied, assessed or imposed on
real estate and the improvements thereon to be levied, assessed and imposed,
wholly or partially on the rents received therefrom, or to be measured by or
based, in whole or in part, upon the Demised Premises and imposed upon Landlord,
then all such taxes, assessments, levies, impositions or charges, or the part
thereof so levied, assessed, imposed, measured or based, shall be deemed to be
included within the term "Impositions" for the purposes hereof, to the extent
that such Impositions would be payable if the Demised Premises were the only
property of Landlord subject to such Impositions, and Tenant shall pay and
discharge the same as herein provided in respect of the payment of Impositions.
10
Nothing herein shall require Tenant to pay any portion of the Impositions
in respect of the Demised Premises which shall be payable by the Ground Lessor
except to the extent that Landlord, as Ground Lessee, shall be obligated to pay,
or reimburse the Ground Lessor for the payment of, the same.
SECTION 3.03. Landlord may, by written notice, require Tenant (a) to pay
directly to the Ground Lessor on or before the due date thereof all amounts
payable by Landlord in respect of Impositions pursuant to Paragraph First of the
Ground Lease, or (b) to pay to Landlord, at least 5 days before the same would
otherwise be payable pursuant to Section 3.01 hereof the amount of any other
Impositions to be paid by Tenant pursuant to said Section. Tenant will furnish
to Landlord, promptly after payment thereof, receipts for all Impositions paid
by Tenant pursuant to this Article to persons other than Landlord. Landlord will
deliver to Tenant copies of any bills or notices received by Landlord with
respect to any Impositions payable by Tenant.
SECTION 3.04. Tenant shall have the right to contest the amount or
validity, in whole or in part, of any Imposition by appropriate proceedings
diligently conducted in good faith and (if payment of such Imposition would
operate as a bar to such contest or interfere materially with the prosecution
thereof) may postpone or defer payment of such Imposition, provided that
(a) neither the Demised Premises nor any part thereof would, by reason
of such postponement or deferment, be in danger of being forfeited or lost,
(b) such contest (if in respect of any Imposition payable by Landlord
as Ground Lessee) shall be permitted by the Ground Lease or the Ground
Lessor, and Tenant shall furnish the Ground Lessor with such indemnities as
may be required by the Ground Lease or the Ground Lessor,
11
(c) such postponement or deferment (if in respect of any Imposition
payable by Landlord as Ground Lessee) will entitle Landlord, as Ground
Lessee, to a corresponding postponement or deferment under the Ground
Lease, and
(d) in case of any such postponement or deferment, Tenant shall have
deposited with Landlord the amount so contested and unpaid, together with
all interest and penalties in connection therewith and all charges that may
or might be assessed against or become a charge on the Demised Premises or
any part thereof in such proceedings, or shall have furnished to Landlord
security reasonably satisfactory to Landlord sufficient to cover said
amount, interest, penalties and charges.
Upon the termination of any such proceedings, Tenant shall pay the amount
of such Imposition or part thereof as finally determined in such proceedings,
the payment of which may have been deferred during the prosecution of such
proceedings, together with any costs, fees, interest, penalties or other
liabilities in connection therewith, and, upon such payment, Landlord shall
return, without interest, any amount deposited with it with respect to such
Imposition as aforesaid, or, at the written request of Tenant, Landlord shall
make available to Tenant, upon such reasonable conditions as Landlord may
prescribe, the amount of such deposit for the making of such payment as
aforesaid. If, at any time during the continuance of such proceedings, Landlord
shall deem any amount deposited as aforesaid insufficient, Tenant shall, upon
demand, make an additional deposit, as aforesaid, of such additional sum as
Landlord reasonably may request, and upon failure of Tenant so to do, the amount
theretofore deposited may be applied by Landlord to the payment, removal and
discharge of such Imposition, and the interest and penalties in connection
therewith and any costs, fees or other liability accruing in any such
proceedings, and the balance, if any, shall be returned to Tenant
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SECTION 3.05. Landlord shall not be required to join in any proceedings
referred to in Section 3.04 hereof unless the Ground Lease or the provisions of
any applicable law, rule or regulation at the time in effect shall require that
such proceedings be brought by and/or in the name of Landlord, in which event
Landlord shall join in such proceedings or permit the same to be brought in its
name. Landlord shall not ultimately be subjected to any liability for the
payment of any costs or expenses in connection with any such proceedings, and
Tenant shall indemnify and save harmless Landlord from any such costs and
expenses. Tenant shall be entitled to any refund of any Imposition and penalties
or interest thereon received by Landlord which have been paid by Tenant, or
which have been paid by Landlord but previously reimbursed in full by Tenant,
and which, in either event, shall not be payable to the Ground Lessor.
SECTION 3.06. Tenant may, in the name of, but without expense to Landlord,
and after 10 days' prior written notice to Landlord, exercise any of the rights
of Landlord provided for in Paragraph FIRST of the Ground Lease with respect to
arbitration of disagreements as to the amount of Impositions payable by the
Ground Lessee.
SECTION 3.07. Notwithstanding the foregoing provisions of this Article 3,
Tenant shall not be obligated to make any payments in respect of any Impositions
pursuant hereto until the rendition by Landlord to Tenant of a ▇▇▇▇ therefor,
showing the aggregate amount of such Imposition and the portion thereof payable
by Tenant pursuant hereto.
ARTICLE 4
SURRENDER.
SECTION 4.01. On the last day of the term hereof or upon any earlier
termination of this lease, or upon any re-entry by Landlord upon the Demised
Premises pursuant
13
to Article 19 hereof, Tenant shall surrender the Demised Premises, together with
all fixtures and articles of personal property attached to or used in connection
with the operation thereof, into the possession and use of Landlord without
delay and in good order, condition and repair, reasonable wear and tear
excepted, free and clear of all lettings and occupancies other than subleases
permitted by this lease and any existing subleases and free and clear of all
liens and encumbrances other than those, if any, permitted by this lease or
created or consented to by Landlord.
SECTION 4.02. Where furnished by or at the expense of any subtenant,
furniture, trade fixtures and business equipment (not constituting part of the
Demised Premises) may be removed by Tenant or by such subtenant at or prior to
the termination of its sublease, provided, however, that the removal thereof
will not contravene the provisions of the Ground Lease and that Tenant shall
with due diligence, and without expense to Landlord, cause the Building to be
promptly restored to its condition prior to such removal and cause any injury
due to such removal to be promptly repaired.
SECTION 4.03. Any personal property of Tenant or any subtenant which shall
remain in the Building after the termination of this lease or any sublease and
the removal of Tenant or such subtenant from the Building, may, at the option of
Landlord be deemed to have been abandoned by Tenant or such subtenant and either
may be retained by Landlord as its property or be disposed of, without
accountability, in such manner as Landlord may see fit.
SECTION 4.04. Landlord shall not be responsible for any loss or damage
occurring to any property owned by Tenant or any subtenant.
SECTION 4.05. The provisions of this Article 4 shall survive any
termination of this lease.
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ARTICLE 5
INSURANCE
SECTION 5.01. Tenant, at its sole cost and expense, shall keep the Building
insured, during the term of this lease, against loss or damage by fire,
lightning, windstorm, hail, explosion, riot and civil commotion, aircraft and
vehicles and smoke, and all other available extended coverage (with provisions
for deduction of not more than $50) in an amount which is not less than 100% of
the replacement value of the Building, without any deduction being made for
depreciation, to the extent such insurance is available. Such replacement value
shall be determined from time to time, but not more frequently than once in any
24 consecutive calendar months, at the request of Landlord, by one of the
insurers or, at the option of Landlord, by an appraiser, architect or contractor
who shall be mutually and reasonably acceptable to Landlord and Tenant. No
omission on the part of Landlord to request any such determination shall relieve
Tenant of its obligation hereunder.
SECTION 5.02. Tenant, at its sole cost and expense, shall maintain:
(a) comprehensive general public liability insurance against claims
for bodily injury, death or property damage, occurring thereon, in or about
the Demised Premises or the elevators or any escalator therein and on, in
or about the adjoining streets, property and passageways, such insurance to
afford minimum protection, during the term of this lease, of not less than
$500,000 in respect of bodily injury or death to any one person, and of not
less than $2,000,000 in respect of any one accident, and of not less than
$100,000 for property damage;
(b) boiler insurance, provided the Building contains a boiler, and, if
requested by Landlord, plate glass insurance;
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(c) war risk insurance upon the Building as and when such insurance is
obtainable from the United States of America, or any agency or
instrumentality thereof, in an amount equal to the lesser of the full
replacement value thereof or the maximum amount of such insurance
obtainable;
(d) rent insurance against loss of rent due to the risks referred to
in Section 5.01 (including those embraced by available extended coverage)
in an amount sufficient to prevent Landlord (and Tenant, if named as an
insured) from being a co-insurer within the terms of the policy or policies
in question, but in any event in an amount not less than the net rent and
the estimated additional rent hereunder for 18 months; and in the event
that the Building shall be destroyed or seriously damaged, Tenant shall
cause to be deposited with Landlord so much of the proceeds of such
insurance as shall equal the net rent and estimated additional rent for one
year, which amount shall be held and applied by Landlord on account of the
payment of such net rent and additional rent until the restoration of the
Building, at which time, provided Tenant is not then in default, the
balance, if any, of such deposit shall be returned by Landlord to Tenant;
and
(e) such other insurance, and in such amounts, as may from time to
time be reasonably required by Landlord against other insurable hazards
which at the time are commonly insured against in the case of premises
similarly situated, due regard being given to the height and type of
building, its construction, use and occupancy.
Tenant shall not violate or permit to be violated any of the conditions or
provisions of any policy provided for in Section 5.01 or 5.02 and Tenant shall
so perform and satisfy the requirements of the companies writing such
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policies that at all times companies of good standing satisfactory to Landlord
shall be willing to write and/or to continue such insurance.
SECTION 5.03. Tenant may effect for its own account any insurance not
required under the provisions of this lease, but any insurance effected by
Tenant on the Building, whether or not required under this Article 5, shall be
for the mutual benefit of Landlord and Tenant and shall be subject to all other
provisions of this Article 5 and of Article 15 hereof. Tenant shall promptly
notify Landlord of the issuance of any such insurance.
SECTION 5.04. All insurance provided for in this Article 5 shall be
effected under valid and enforceable policies issued by insurers of recognized
responsibility which are licensed to do business in the State of New York, are
well rated by national rating organizations, and have been approved in writing
by Landlord (such approval not to be unreasonably withheld) and, in the case of
insurance provided for in Section 5.01, by the Ground Lessor. Upon the execution
of this lease, and thereafter not less than 10 days prior to the expiration
dates of the expiring policies theretofore furnished pursuant to this Article 5
or Article 9 hereof, originals of the policies, bearing notations evidencing the
payment of premiums or accompanied by other evidence satisfactory to Landlord of
such payment, shall be delivered by Tenant to Landlord, together (in the case of
any insurance provided for in Section 5.01 hereof) with duplicate copies
thereof.
SECTION 5.05. All policies of insurance provided for in Sections 5.01 and
5.02 hereof shall name Landlord, and (in the case of those provided for in
Section 5.01) the Ground Lessor, as the insureds, as their respective interests
may appear. Subject to the provisions of the Ground Lease, such policies may
also name Tenant and any Total Subtenant as their respective interests may
appear, and may be made payable to any Leasehold Mortgagee and any
17
leasehold mortgagee (as defined in Section 18.13 hereof) of a total sublease, as
their interests may appear, pursuant to a standard mortgagee clause. The loss,
if any, under any policies provided for in such Section 5.01 and in paragraphs
(c) and (e) of Section 5.02 shall be adjusted with the insurance companies (a)
by Tenant, in the case of any particular casualty resulting in damage or
destruction not exceeding $100,000 in the aggregate, or (b) by Landlord,
Tenant, any Leasehold Mortgagee, any Total Subtenant and any leasehold mortgagee
of a total sublease, in the case of any particular casualty resulting in damage
or destruction exceeding $100,000 but not exceeding $250,000 in the aggregate,
or (c) by Landlord and (to the extent required or permitted by the Ground Lease)
by the Ground Lessor and/or Tenant and/or any Leasehold Mortgagee, and/or any
Total Sub-tenant and/or any leasehold mortgagee of a total sublease, as their
respective interests may appear, in the case of any particular casualty
resulting in damage or destruction exceeding $250,000 in the aggregate. The
proceeds of any such insurance, as so adjusted, shall be payable:
(i) to Tenant, in the case of any particular casualty resulting in
damage or destruction not exceeding $100,000 in the aggregate, or
(ii) to Landlord (or, at Tenant's election, to an insurance trustee
which shall be a bank or trust company having its principal office in the
Borough of Manhattan, City of New York, selected by, and whose charges
shall be paid by, Tenant) for the purposes set forth in Article 15, in the
case of any particular casualty resulting in damage or destruction
exceeding $100,000, but not exceeding $250,000, in the aggregate, or
(iii) in the case of any particular casualty resulting in damage or
destruction exceeding $250,000 in the aggregate, either (A) to the
insurance trustee designated pursuant to Paragraph Seventh of the Ground
Lease in the case of proceeds of insurance provided
18
for in Section 5.01 hereof or (B) to Landlord (or, at Tenant's election, to
an insurance trustee selected as provided in clause (ii) of this Section),
for the purposes set forth in Article 15, in the case of proceeds of
insurance provided for in Section 5.02 hereof.
All such policies shall provide that the loss, if any, thereunder shall be
adjusted and paid as hereinabove provided. Each such policy shall contain (if
obtainable) a provision that no act or omission of Tenant shall affect or limit
the obligation of the insurance company to pay to Landlord the amount of any
loss sustained and an agreement by the insurer that such policy shall not be
cancelled without at least 10 days' prior written notice to Landlord and {in the
case of policies provided for in Section 5.01) the Ground Lessor.
SECTION 5.06. If, at any time during the term of this lease, Landlord shall
request that the amount of liability insurance provided by Tenant, as required
by Section 5.02 and paragraph (g) of Section 9.01 hereof, be increased on the
ground that such coverage is inadequate properly to protect the interest of
Landlord, or if Landlord shall require other insurance pursuant to the
provisions of paragraph (e) of Section 5.02, and Tenant shall refuse to comply
with any such request or requirement, the dispute shall be submitted to
arbitration as provided in Article 25 hereof. Tenant shall thereafter carry the
amount, and such kind, of insurance as determined by such arbitration to be
adequate and required, but in no event shall the amount of public liability
insurance be less than the amounts specified in Section 5.02 and in paragraph
(g) of Section 9.01 hereof.
SECTION 5.07. Upon the expiration of this lease, the unearned premiums upon
any such transferable insurance policies lodged with Landlord by Tenant shall be
apportioned, if Tenant shall not then be in default in the performance of any of
Tenant's covenants, agreements and undertakings in this lease.
19
ARTICLE 6
LANDLORD'S RIGHT TO PERFORM TENANT'S CONVENANTS
SECTION 6.01. If Tenant shall at any time fail to pay any Imposition in
accordance with the provisions of Article 3 hereof, or to pay for or maintain
any of the insurance policies provided for in Article 5 hereof, or to make any
other payment or perform any other act on its part to be made or performed
hereunder, then Landlord, after 30 days' notice to Tenant (or, if necessary to
avoid a default under the Ground Lease, after 10 days' notice, or, in case of
any emergency, on such notice, or without notice, as may be reasonable under the
circumstances) and without waiving, or releasing Tenant from, any obligation of
Tenant hereunder, may (but shall not be required to):
(a) pay any Imposition payable by Tenant pursuant to the provisions of
Article 3 hereof, or
(b) pay for and maintain any of the insurance policies provided for in
Article 5 hereof, or
(c) make any other payment or perform any other act on Tenant's part
to be made or performed as in this lease provided,
and may enter upon the Demised Premises for the purpose and take all such action
thereon as may be necessary therefor.
SECTION 6.02. All sums so paid by Landlord and all costs and expenses
incurred by Landlord in connection with the performance of any such act
(together with interest thereon at the rate of 6% per annum from the respective
dates of Landlord's making of each such payment or incurring of each such cost
and expense) shall constitute additional rent payable by Tenant under this lease
and shall be paid by Tenant to Landlord on demand,
20
and Landlord shall not be limited in the proof of any damages which Landlord may
claim against Tenant arising out of or by reason of Tenant's failure to provide
and keep in force insurance as aforesaid, to the amount of the insurance premium
or premiums not paid or incurred by Tenant and which would have been payable
upon such insurance, but Landlord shall also be entitled to recover as damages
for such breach, the uninsured amount of any loss (to the extent of any
deficiency in the insurance required by the provisions of this lease), damages,
costs and expenses of suit suffered or incurred by reason of damage to, or
destruction of, the Demised Premises, occurring during any period when Tenant
shall have failed or neglected to provide insurance as aforesaid. However, any
amount so recovered by the Landlord for damages to the Demised Premises shall be
subject to the provisions of Article 15 hereof.
ARTICLE 7
REPAIRS AND MAINTENANCE OF THE PROPERTY,
STEAM AND ELECTRICITY
SECTION 7.01. During the term of this lease, Tenant, at its sole cost and
expense, will take good care of the Building (including the fixtures and
facilities therein), and the sidewalks, driveways and curbs adjoining the
Building and will maintain and keep the same in good order and condition, and
make all necessary repairs thereto, interior and exterior, structural and
non-structural, ordinary and extraordinary, and foreseen and unforeseen, unless
prohibited by the Ground Lease and not consented to by Ground Lessor. When used
in this Article 7, the term "repairs" shall include all necessary replacements,
renewals, alterations, additions and betterments. All repairs made by Tenant
shall be equal in quality and class to the original work. Nothing in this
Section contained shall obligate Tenant to repair any portion of the Building
21
excepted from the Demised Premises if and to the extent that the Ground Lessor
is obligated under the Ground Lease to make such repairs at its own cost and
expense without reimbursement from Landlord as Ground Lessee. Without limiting
the generality of the foregoing, Tenant shall cause all windows in the north and
east walls of the Building, including the north wall of the south wing, to be
caulked, and all split, buckled or otherwise damaged slate window ▇▇▇▇▇ in the
Building to be replaced, on or before May 1, 1958, and Tenant will, promptly
after written request by Landlord, cause all other windows of the Building to be
caulked, when and if, in Landlord's reasonable judgment, such caulking shall be
necessary.
SECTION 7.02. The necessity for and adequacy of repairs to the Building
pursuant to Section 7.01 hereof shall be measured by the standard which is
appropriate for buildings of similar construction and class, provided that
Tenant shall in any event make all repairs required to be made by the Ground
Lessee under the Ground Lease.
SECTION 7.03. Tenant shall maintain all portions of the Building and the
adjacent sidewalks, driveways and curbs in a clean and orderly condition, free
of dirt, rubbish, snow, ice and unlawful obstructions; provided, however, that
Tenant shall not be responsible for the maintenance, lighting, cleaning and
policing of the passageway extending from Lexington Avenue to the Grand Central
Terminal building, but Tenant shall pay to Landlord (or, on Landlord's written
request, to the Railroad Company), promptly upon rendition of bills therefor,
the portion of the expense of such maintenance, lighting, cleaning and policing
which Landlord is required to pay as Ground Lessee under the Ground Lease.
SECTION 7.04. Landlord shall not be required to furnish any services or
facilities, or to make any repairs or alterations, in or to the Building.
22
SECTION 7.05. Tenant shall, at its own cost and expense, take all action
necessary to obtain directly from the public utility companies furnishing such
service in the Borough of Manhattan, City and State of New York, a sufficient
supply of all electric current and all steam required for any and all purposes
in the Demised Premises. All such arrangements (including the installation, in
accordance with plans and specifications approved by Landlord and the Ground
Lessor, of all mains, pipes, condensate lines, conduits, drip tanks, pumps,
ejectors, meter equipment and other facilities required for the purpose of
obtaining such service and disposing of any condensate therefrom and the
installation of all such rectifiers, motor generators and other equipment, and
the doing of such wiring and other work as may be required to enable Tenant to
use the electric current to be supplied by such public utility company for the
operation of elevators, ventilating fans, pumps and heavy machinery in the
Demised Premises) shall be completed and such service shall commence on or
before January 1, 1959. Without limiting the generality of the foregoing
provisions of this Article, Tenant shall be responsible for the maintenance and
repair of such facilities. Pending the completion of such arrangements and the
commencement of such service, Landlord assigns to Tenant its right to receive
from the Ground Lessor, subject to the provisions of Paragraph Eighth of the
Ground Lease, all such direct current and steam as the Ground Lessor is
obligated to furnish thereunder for the Demised Premises, but Landlord shall not
be responsible for the furnishing of such service except to the extent of
permitting Tenant to take such action, in Landlord's name, as may be required to
enforce said provisions of the Ground Lease.
SECTION 7.06. During the initial term of this lease, Tenant or any Total
Subtenant shall, upon written request of Landlord, appoint from a list submitted
by Landlord of at least four real estate firms specializing in the management
23
and operation of high grade office buildings in the Borough of Manhattan, one
such firm to act as its agent in the management of the Demised Premises. After
any such appointment of an agent, Landlord may, upon 30 days' notice, require
Tenant or such a Total Subtenant to replace any such agent by appointment of
another from a list of at least six such firms submitted by Landlord. Tenant or
a Total Subtenant may at any time substitute or replace such appointed agent
with any other agent selected from the last-furnished list.
ARTICLE 8
COMPLIANCE WITH LAWS, ORDINANCES, ETC.
SECTION 8.01. During the term of this lease, Tenant, at its sole cost and
expense, shall promptly comply with all present and future laws, ordinances,
orders, rules, regulations and requirements of all federal, state and municipal
governments, courts, departments, commissions, boards and officers, any national
or local Board of Fire Underwriters, or any other body exercising functions
similar to those of any of the foregoing, foreseen or unforeseen, ordinary as
well as extraordinary, which may be applicable to the Demised Premises and the
sidewalks, curbs and vaults adjoining the Demised Premises or to the use or
manner of use of the Demised Premises or the owners, tenants or occupants
thereof, whether or not such law, ordinance, order, rule, regulation or
requirement shall necessitate structural changes or improvements, or the removal
of any encroachments or projections, ornamental, structural or otherwise, onto
or over the streets adjacent to the Demised Premises, or onto or over other
property contiguous or adjacent thereto.
SECTION 8.02. Tenant shall have the right to contest by appropriate
proceedings diligently conducted in good faith, in the name of Tenant or
Landlord or both, without cost or expense to Landlord, the validity or
application of
24
any law, ordinance, order, rule, regulation or requirement of the nature
referred to in Section 8.01 hereof, provided that such contest shall be
permitted by the Ground Lease and Tenant shall have furnished to the Ground
Lessor such indemnity as may be required by the terms of the Ground Lease. If by
the terms of any such law, ordinance, order, rule, regulation or requirement,
compliance therewith pending the prosecution of any such proceeding may legally
be delayed without the incurrence of any lien, charge or liability of any kind
against the Demised Premises or Tenant's leasehold interest therein and without
subjecting Tenant or Landlord to any liability, civil or criminal, for failure
so to comply therewith, Tenant may delay compliance therewith until the final
determination of such proceeding. If any lien, charge or civil liability would
be incurred by reason of any such delay, Tenant nevertheless, with the prior
written consent of Landlord (such consent not to be unreasonably withheld), may
contest as aforesaid and delay as aforesaid, provided that such delay would not
subject Landlord to criminal liability and Tenant (i) furnishes to Landlord
security, reasonably satisfactory to Landlord, against any loss or injury by
reason of such contest or delay, and (ii) prosecutes the contest with due
diligence.
Landlord shall not be required to join in any proceedings referred to in
this Section unless the Ground Lease or the provisions of any applicable law,
rule or regulation at the time in effect shall require that such proceedings be
brought by and/or in the name of Landlord, in which event Landlord shall join in
such proceedings or permit the same to be brought in its name.
SECTION 8.03. Without limiting the generality of the foregoing provisions
of this Article 8 or the provisions of Article 7 hereof:
(a) Tenant shall not suffer, allow or permit the loading of any of the
floors of the Building, or any
25
portion or portions thereof, beyond the weights permitted by the building
ordinances of the City of New York, as changed from time to time during the
term of this lease by orders of the municipal authorities having or
asserting jurisdiction in the premises;
(b) Tenant shall not construct or allow or permit to be constructed
any advertising signs upon the roof, walls or windows of the Building or
any lettering upon the windows, nor shall Tenant permit the windows above
the floor next above the ground floor, or the windows, if any, in the
spaces adjoining the passageway from Lexington Avenue to the Grand Central
Terminal building, to be used for advertising or display purposes, without
in each case the written consent of Landlord, and (if required by the
Ground Lease) the written consent of the Ground Lessor first had and
obtained.
ARTICLE 9
CHANGES AND ALTERATIONS
SECTION 9.01. Tenant will make no alterations or changes in the Building or
any part thereof, except in compliance with the provisions of Paragraph Sixth of
the Ground Lease, and all matters requiring the consent or approval of the
Ground Lessor thereunder shall also require the consent or approval of Landlord,
which consent or approval of Landlord shall not be unreasonably withheld. In
addition to, and without limiting the generality of, the foregoing, Tenant
covenants and agrees that:
(a) No change or alteration, involving an estimated cost of more than
$100,000, including any restoration required by Article 15 or 16 hereof,
shall be made without the prior written consent of Landlord, such consent
not to be withheld if the change
26
or alteration would not in the reasonable opinion of Landlord impair the
value, rental value, rentability or usefulness of the Building or any part
thereof.
(b) No change or alteration shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be required from time to
time, all permits and authorizations of all municipal departments and
governmental subdivisions having jurisdiction. Landlord shall join in the
application for such permits or authorizations whenever such action is
necessary, but without any liability or expense to Landlord.
(c) No structural change or alteration shall be made except in
accordance with plans and specifications approved in writing by the Ground
Lessor and Landlord, and such approval by Landlord shall not be
unreasonably withheld.
(d) Any change or alteration shall, when completed, be of such a
character as not to reduce the value, rental value or rentability or
usefulness of the Demised Premises.
(e) Any change or alteration shall be made promptly and in a good and
workmanlike manner and in compliance with all applicable permits and
authorizations and building and zoning laws and with all other laws,
ordinances, orders, rules, regulations and requirements of all federal,
state and municipal governments, departments, commissions, boards and
officers, any national or local Board of Fire Underwriters, or any other
body hereafter exercising functions similar to those of any of the
foregoing.
(f) The cost of any such change or alterations shall be paid in cash
or its equivalent so that the Demised Premises shall at all times be free
of liens for labor and materials supplied or claimed to have been supplied
to the Demised Premises.
27
(g) Workmen's compensation insurance covering all persons employed in
connection with the work and with respect to whom death or bodily injury
claims could be asserted against Landlord, Tenant or the Demised Premises,
and general liability insurance for the mutual benefit of Tenant and
Landlord with limits of not less than $250,000 in the event of bodily
injury to one person and not less than $1,000,000 in the event of bodily
injury to any number of persons in any one accident, and with limits of not
less than $25,000 for property damage, shall be maintained or caused to be
maintained by Tenant at Tenant's sole cost and expense at all times when
any work is in process in connection with any change or alteration. All
such insurance shall be in a company or companies of recognized
responsibility, and all policies or certificates therefor issued by the
respective insurers, bearing notations evidencing the payment of premiums
or accompanied by other evidence satisfactory to Landlord of such payment,
shall be delivered to Landlord.
(h) If the estimated cost of any such change or alteration shall be in
excess of $100,000, Tenant, before commencement of work, at Tenant's sole
cost and expense, shall furnish to Landlord a surety company performance
bond, issued by a surety company acceptable to Landlord, in an amount at
least equal to the estimated cost of such change or alteration,
guaranteeing the completion thereof within a reasonable time, free and
clear of all liens, encumbrances, chattel mortgages, conditional bills of
sale, and other charges, and in accordance with the plans and
specifications approved by Landlord or, in lieu of such performance bond,
other security reasonably satisfactory to Landlord. No performance bond or
other security shall be required except to the extent that
28
such estimated cost exceeds the amounts deposited pursuant to Section 15.02
or available for the purpose pursuant to Section 16.04 of this lease.
ARTICLE 10
DISCHARGE OF LIENS
SECTION 10.01. Tenant will not create or permit to be created or to remain,
and will discharge, any lien, encumbrance or charge (levied on account of any
Imposition or any mechanic's, laborer's or materialman's lien or any mortgage,
conditional sale, title retention agreement or chattel mortgage, or otherwise)
which might be or become a lien, encumbrance or charge upon the Demised Premises
or any part thereof or the income therefrom, having any priority or preference
over or ranking on a parity with the estate, rights and interest of Landlord in
the Demised Premises or any part thereof or the income therefrom, and Tenant
will not suffer any other matter or thing whereby the estate, rights and
interest of Landlord in the Demised Premises or any part thereof might be
impaired; provided that any Imposition may, after the same becomes a lien on the
Demised Premises, be paid or contested in accordance with Article 3 hereof, and
any mechanic's, laborer's or materialman's lien may be discharged in accordance
with Section 10.02 hereof.
SECTION 10.02. If any mechanic's, laborer's or materialman's lien shall at
any time be filed against the Demised Premises or any part thereof, Tenant,
within 50 days after notice of the filing thereof, will cause the same to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid, then, in addition to any other right or
remedy, Landlord may, but shall not be obligated to, discharge the same either
by paying the amount claimed to
29
be due or by procuring the discharge of such lien by deposit or by bonding
proceedings, and in any such event Landlord shall be entitled, if Landlord so
elects, to compel the prosecution of an action for the foreclosure of such lien
by the lienor and to pay the amount of the judgment in favor of the lienor with
interest, costs and allowances. Any amount so paid by Landlord and all costs and
expenses incurred by Landlord in connection therewith, together with interest
thereon at the rate of 6% per annum from the respective dates of Landlord's
making of the payment or incurring of the cost and expense shall constitute
additional rent payable by Tenant under this lease and shall be paid by Tenant
to Landlord on demand.
SECTION 10.03. Nothing in this lease contained shall be deemed or construed
in any way as constituting the consent or request of Landlord, express or
implied by inference or otherwise, to any contractor, subcontractor, laborer or
materialman for the performance of any labor or the furnishing of any materials
for any specific improvement, alteration to or repair of the Demised Premises or
any part thereof, nor as giving Tenant any right, power or authority to contract
for or permit the rendering of any services or the furnishing of any materials
that would give rise to the filing of any lien against the Demised Premises or
any part thereof.
ARTICLE 11
USE OF PROPERTY
SECTION 11.01. Tenant will use the Demised Premises only for a high-grade
office building, except that the ground floor and floor next above the ground
floor may be used for banks, for trust companies, or for stores, and Tenant
shall not use or permit or allow the Demised Premises or any portion thereof to
be used for any other purpose, without
30
prior written consent of Landlord and the Ground Lessor. Tenant will not use or
allow the Demised Premises or any part thereof to be used or occupied for any
unlawful purpose or in violation of the Ground Lease or any certificate of
occupancy or certificate of compliance covering or affecting the use of the
Demised Premises or any part thereof and will not suffer any act to be done or
any condition to exist on the Demised Premises or any part thereof or any
article to be brought thereon, which would in any way violate the Ground Lease
or which may be dangerous, unless safeguarded as required by law, or which may,
in law, constitute a nuisance, public or private, or which may make void or
voidable any insurance then in force with respect thereto.
SECTION 11.02. Tenant will not do or suffer any waste or damage,
disfigurement or injury to the Building or any part thereof.
SECTION 11.03. Tenant shall not use or permit the use of the Demised
Premises or any part thereof for any purpose which in the reasonable opinion of
Landlord would adversely affect the then value or character of the Demised
Premises. Any dispute between Landlord and Tenant arising under the provisions
of this Section 11.03 shall be submitted to arbitration as provided under
Article 25 hereof.
ARTICLE 12
GROUND LEASE
SECTION 12.01. This lease is subject and subordinate to all the terms,
covenants and conditions of the Ground Lease and Tenant agrees that it will, at
its cost and expense, promptly perform and observe all obligations of Landlord,
as Ground Lessee thereunder (other than the requirements thereof for the payment
to the Ground
31
Lessor of the Ground Rent and additional rentals thereunder, to the extent that
the same shall be paid by Tenant to Landlord), and comply with all restrictions
and other requirements of the Ground Lease applicable to the Ground Lessee and
the Demised Premises. Specific references in other Articles of this lease to
compliance with particular requirements of the Ground Lease shall not limit the
generality of the foregoing.
SECTION 12.02. Landlord covenants and agrees that it will duly pay to the
Ground Lessor each and every installment of Ground Rent and additional rent
under the Ground Lease which Tenant shall have paid hereunder to Landlord.
Landlord further covenants and agrees that it will not do, suffer or permit any
act, condition or thing to occur which would or may constitute a default under
the Ground Lease, except to the extent that such occurrence shall have resulted,
directly or indirectly, from a default hereunder either by Tenant or caused by
any Total Subtenant or any subtenant. Tenant shall have the right to, at any
time or from time to time, but shall not be obligated to, make any such payment
or payments or take any such action as shall be necessary to prevent a default
under the terms of the Ground Lease, and (except to the extent that such default
shall have resulted, directly or indirectly, from a default hereunder by Tenant
or caused by any Total Subtenant or any subtenant), Tenant may thereafter deduct
the amount of any such payment from the next succeeding installment or
installments of net rent or additional rent accruing under this lease, with
interest thereon at the rate of 6% per annum from the date of any such payment.
SECTION 12.03. Landlord shall not modify or consent to any modification of
the Ground Lease or the Grant of Term except with the prior written consent of
Tenant and any such modification made without such consent shall be null and
void and of no effect so far as Tenant is concerned.
32
ARTICLE 13
ENTRY ON PROPERTY BY LANDLORD, ETC.
SECTION 13.01. Tenant will permit Landlord and its authorized
representatives to enter the Demised Premises at all reasonable times for the
purpose of (a) inspecting the same and (b) making any necessary repairs thereto
and performing any other work therein that may be necessary by reason of
Tenant's failure to make any such repairs or perform any such other work or to
commence the same for 30 days after written notice from Landlord. Nothing herein
shall imply any duty upon the part of Landlord to do any such work; and
performance thereof by Landlord shall not constitute a waiver of Tenant's
default in failing to perform the same. Landlord may, during the progress of any
such work in the Demised Premises, keep and store therein or elsewhere upon the
Demised Premises all necessary materials, tools, supplies and equipment.
Landlord shall not be liable for inconvenience, annoyance, disturbance, loss of
business or other damage of Tenant, any Total Subtenant or any subtenant by
reason of making such repairs or the performance of any such work, or on account
of bringing materials, tools, supplies and equipment into or through the Demised
Premises during the course thereof and the obligations of Tenant under this
lease shall not be affected thereby.
SECTION 13.02. Landlord shall have the right to enter the Demised Premises
at all reasonable times during usual business hours for the purpose of showing
the same to prospective purchasers or mortgagees, and, at any time within 2
years prior to the expiration of the initial term of this lease (unless Tenant
theretofore shall have given written notice of its election to renew this lease
as provided in Article 20 hereof) or within 2 years prior to the expiration of
any renewal term of this lease (unless Tenant, if entitled to renew this lease
as provided in Article 20
33
hereof, theretofore shall have given Landlord written notice of its election so
to renew this lease as therein provided), for the purpose of showing the same to
prospective tenants.
ARTICLE 14
INDEMNIFICATION OF LANDLORD
SECTION 14.01. Tenant will indemnify and save harmless Landlord against and
from all liabilities, obligations, damages, penalties, claims, costs, charges
and expenses, including reasonable architects' and attorneys' fees, which may be
imposed upon or incurred by or asserted against Landlord by reason of any of the
following occurring during the term of this lease:
(a) any work or thing done in, on or about the Demised Premises or any
part thereof;
(b) any use, non-use, possession, occupation, condition, operation,
maintenance or management of the Demised Premises or any part thereof or
any street, alloy, sidewalk, curb, vault, passageway or space adjacent
thereto;
(c) any negligence on the part of Tenant or any of its agents,
contractors, servants, employees, sub-tenants, licensees or invitees;
(d) any accident, injury or damage to any person or property occurring
in, on or about the Demised Premises or any part thereof or any street,
alley, sidewalk, curb, vault, passageway or space adjacent thereto;
(e) any failure by Tenant to perform or comply with any of the
covenants, agreements, terms or conditions contained in this lease on its
part to be performed or complied with; or
34
(f) any tax attributable to the execution, delivery or recording of
this lease or any modification hereof.
In case any action or proceeding is brought against Landlord by reason of any
such claim, Tenant upon written notice from Landlord will at Tenant's expense
resist or defend such action or proceeding by counsel approved by Landlord in
writing, such approval not to be unreasonably withheld.
ARTICLE 15
DAMAGE OR DESTRUCTION
SECTION 15.01. In case of casualty to the Building resulting in damage or
destruction exceeding $100,000 in the aggregate, Tenant shall promptly give
written notice thereof to Landlord. Regardless of the amount of any such damage
or destruction, Tenant shall at its sole cost and expense, and whether or not
the insurance proceeds, if any, shall be sufficient for the purpose, restore,
repair, replace, rebuild or alter the Building as nearly as possible to its
value, condition and character immediately prior to such damage or destruction
and in conformity with the requirements of the Ground Lease and the provisions
of Article 9 hereof. Such restoration, repairs, replacements, rebuilding or
alterations shall be commenced promptly and prosecuted, with reasonable
diligence.
SECTION 15.02. Subject to the provisions of the Ground Lease, all insurance
proceeds received by Landlord or any insurance trustee selected by Tenant
pursuant to Section 5.05 hereof, on account of such damage or destruction, less
the actual cost, fees and expenses, if any, incurred in connection with
adjustment of the loss, shall be applied by Landlord or such insurance trustee
to pay or reimburse Tenant for the payment of the cost of the aforesaid
demolition, restoration, repairs, replacement, rebuilding or alterations,
35
including the cost of temporary repairs or for the protection of property
pending the completion of permanent restoration, repairs, replacements,
rebuilding or alterations (all of which temporary repairs, protection of
property and permanent restoration, repairs, replacement, rebuilding or
alterations are hereinafter collectively referred to as the "restoration"), and
shall be paid out from time to time as such restoration progresses upon the
written request of Tenant which shall be accompanied by the following:
(1) A certificate signed by Tenant, dated not more than 30 days prior
to such request, setting forth the following:
(A) That the sum then requested either has been paid by Tenant,
or is justly due to contractors, subcontractors, materialmen,
engineers, architects or other persons who have rendered services or
furnished materials for the restoration therein specified, the names
and addresses of such persons, a brief description of such services
and materials, the several amounts so paid or due to each of said
persons in respect thereof, that no part of such expenditures has been
or is being made the basis, in any previous or then pending request,
for the withdrawal of insurance money or has been made out of the
proceeds of insurance received by Tenant, and that the sum then
requested does not exceed the value of the services and materials
described in the certificate.
(B) That, except for the amount, if any, stated (pursuant to the
foregoing subclause (1) (A)) in such certificate to be due for
services or materials, there is no outstanding indebtedness known to
the persons signing such certificate, after due inquiry, which is then
due for labor, wages, materials, supplies or services in connection
with such restoration.
37
Lease, Landlord or such insurance trustee shall, out of such insurance money,
pay or cause to be paid to Tenant or the persons named (pursuant to subclause
(1) (A) of this Section 15.02) in such certificate the respective amounts stated
therein to have been paid by Tenant or to be due to them, as the case may be.
If the insurance money at the time available for the purpose, less the
actual cost, fees and expenses, if any, incurred in connection with the
adjustment of the loss, shall be insufficient to pay the entire cost of such
restoration, Tenant will pay the deficiency.
Upon receipt by Landlord or such insurance trustee of satisfactory evidence
of the character required by clauses (1) and (2) of this Section 15.02 and by
the Ground Lease that the restoration has been completed and paid for in full
and that there are no liens of the character referred to therein, any balance of
the insurance money held by Landlord or the insurance trustee selected by Tenant
hereunder or to which Landlord may be entitled pursuant to the Ground Lease
shall be paid to Tenant.
SECTION 15.03. If, during the last five years of the last renewal term of
this lease, the Building shall be damaged or destroyed by fire or otherwise, and
as a result thereof Landlord shall be entitled to terminate the Ground Lease
pursuant to Paragraph Seventh thereof,
(a) nothing herein contained shall prohibit the Landlord from
exercising such right of termination,
(b) Tenant shall have a corresponding right to terminate this lease;
and
(c) in case of any such termination of the Ground Lease by Landlord,
this lease shall terminate as of a date one day prior to the date of
termination of the Ground Lease and Landlord shall give Tenant at least 30
days' prior written notice of the date of such termination.
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In the event of any such termination, any insurance proceeds payable in
respect of such damage or destruction shall be paid over to the Ground Lessor to
the extent required by the Ground Lease and any balance thereof shall be applied
first to the payment of any other amounts owing to the Ground Lessor pursuant to
said Paragraph Seventh and any remaining balance shall be paid to Tenant.
SECTION 15.04. Except as provided in Section 15.03 hereof, no destruction
of or damage to the Demised Premises or any part thereof by fire or any other
casualty shall terminate or permit Tenant to surrender this lease or shall
relieve Tenant from its liability to pay the full net rent and additional rent
and other charges payable under this lease or from any of its other obligations
under this lease, and Tenant waives any rights now or hereafter conferred upon
it by statute or otherwise to quit or surrender this lease or the Demised
Premises or any part thereof, or to any suspension, diminution, abatement or
reduction of rent on account of any such destruction or damage.
ARTICLE 16
CONDEMNATION
SECTION 16.01. In the event that the Demised Premises, or any part thereof,
shall be taken in condemnation proceedings or by exercise of any right of
eminent domain, Landlord shall be entitled to collect from any condemnor the
entire award that shall be made with respect to the leasehold estate created by
the Ground Lease and for consequential damages to the Demised Premises, without
deduction therefrom for any estate hereby vested in or owned by Tenant, subject
to Tenant's rights as set forth in this Article 16. Tenant agrees to execute, or
cause to be executed, any and all further documents that may be required in
order to facilitate collection by Landlord of
39
any and all such awards. Tenant, in cooperation with Landlord, shall have the
right to participate in any condemnation proceedings for the purpose of
protecting Tenant's interest hereunder. For purposes of this Article, any such
taking which shall result in a termination of the Ground Lease (whether by
action of Landlord, by operation of law or otherwise) is referred to as a "Total
Taking"; any such taking which shall not result in a termination of the Ground
Lease is referred to as a "Partial Taking"; and the net amount of any such award
so collected by Landlord in the event of a Total or Partial Taking, after
deducting the expenses mentioned in Section 16.03 hereof, is referred to as the
"Net Award."
SECTION 16.02. In case of a Total Taking, this lease shall terminate and
expire on the date of termination of the Ground Lease and the net rent shall be
apportioned and paid to such date. In such event, Tenant shall not be entitled
to receive any apportionment of Impositions theretofore paid or payable by
Tenant, except to the extent that apportionment or refund is granted by the
condemnor acquiring the Demised Premises.
SECTION 16.03. In case of a Total Taking, the rights of Landlord and Tenant
to share in the Net Award shall be as follows and in the following order of
priority:
(a) In case of any such taking during the initial term of this lease,
Landlord's share shall be an amount determined in accordance with
Schedule C attached hereto and made part hereof.
(b) In case of any such taking during the first renewal term of this
lease, Landlord's share shall be the greater of (i) 30% of the Net Award or
(ii) an amount determined by deducting from $6,000,000 the sum of $45,000
for each 3-month period of said renewal term elapsed prior to the date of
such Partial Taking.
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(c) In case of any such taking during the second or third renewal term
of this lease, Landlord's share shall be 30% of the Net Award.
(d) Tenant shall be entitled to receive any balance of the Net Award
after all payments have been made to Landlord as provided in paragraphs
(a), (b) and (c) of this Section 16.03.
There shall be deducted from Landlord's share the aggregate of any amounts
retained by Landlord pursuant to Section 16.04 by reason of any prior Partial
Taking.
SECTION 16.04. In case of a Partial Taking, Tenant, at its expense, shall
restore the Building to substantially its former condition, to the extent the
same is feasible, in accordance with the provisions of Article 9 hereof. All of
the Net Award shall be held by Landlord and applied and paid over toward the
cost of demolition, repair and restoration, substantially in the same manner and
subject to the same conditions as those provided in Section 15.02 hereof with
respect to insurance and other moneys, and any balance remaining in the hands of
Landlord after payment of such cost of demolition, repair and restoration as
aforementioned, shall be retained by Landlord and the net rent adjusted as
provided in Section 16.05. In the event that the costs of such demolition,
repairs and restoration shall exceed the Net Award, Tenant shall pay the
deficiency.
SECTION 16.05. In case of a Partial Taking, this lease shall continue, but
the net rent thereafter payable by Tenant shall be apportioned and reduced from
the date of each such partial taking as follows:
(a) if such taking shall occur during the initial term, by an amount
equal to 9% per annum of the Net Award as to rent payable for the remaining
period of the initial term of this lease, and 3% per annum of the
41
Net Award as to rent payable during each renewal term of this lease; or
(b) if such taking shall occur during any renewal term of this lease,
by an amount equal to 3% per annum of the Net Award as to rent payable
during the remaining period of said renewal term and during any subsequent
renewal term.
Any net rent becoming due and payable hereunder between the date of any such
Partial Taking and the date of determination of the amount of the rent
reduction, if any, to be made in respect hereof shall be paid at the rate
theretofore payable hereunder; provided, however, that after such determination
Landlord, within 10 days after request, shall pay to Tenant an amount equal to
the amount by which any net rent theretofore paid by Tenant for such period
shall exceed the amount of the net rent for such period as so reduced or Tenant,
at its election, may deduct such amount from any subsequent installment or
installments of net rent payable hereunder.
If, in the case of any Partial Taking, more than 20% of the rentable space
in the Demised Premises is so taken, Tenant may elect to purchase from Landlord
all of Landlord's right, title and interest in and to this lease and the Ground
Lease, free and clear of any liens and encumbrances created or suffered by
Landlord, together with any balance of the Net Award (after deducting any
portion thereof theretofore paid over by Landlord to Tenant or at Tenant's
direction on account of the cost of any restoration theretofore made pursuant to
Section 16.04), at a purchase price determined as follows:
(a) If the Partial Taking occurs during the initial term hereof, the
purchase price shall be the amount which would have been payable to
Landlord pursuant to Section 16.03 (a) hereof if such Partial Taking had
been a Total Taking.
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(b) If the Partial Taking occurs after the initial term hereof, the
purchase price shall be an amount equal to the greater of 30% of such Net
Award (prior to any deduction for restoration costs) or 30% of the
appraised value of Landlord's interest in the Demised Premises (determined
as of a date immediately prior to such Partial Taking and without deduction
for the value of the interest therein of Tenant and otherwise pursuant to
the provisions of Section 25.02 hereof).
Such election to purchase shall be exercised by written notice to Landlord given
within 60 days after the determination of the amount of the Net Award. Within 60
days after receipt of any such notice, Landlord shall assign to Tenant or
Tenant's designee or nominee, against receipt of the purchase price, Landlord's
interest in and to the Ground Lease, this lease and the Net Award; provided,
however, that Landlord shall not be required to make any such assignment if
Tenant shall, at the time, be in default hereunder and shall have been notified
thereof, or if Tenant shall fail to assume Landlord's obligations under the
Ground Lease, or if such assignment and assumption shall not operate to relieve
Landlord of its liabilities and obligations under the Ground Lease. Such
assignment shall be without recourse against Landlord.
No apportionment of Impositions shall be made in connection with such
assignment except to the extent provided in Section 16.02. The net rent shall be
apportioned to the date of such Partial Taking and Landlord shall refund to
Tenant the amount by which any net rent paid by Tenant beyond said date shall
exceed interest on the purchase price computed from said date to the date of
payment of the purchase price. Said interest shall be computed at the rate of 6%
per annum if the Partial Taking occurs during the initial term, or at the rate
payable on the award by the condemnor if such Partial Taking
43
occurs during any renewal term. Any funds held by Landlord in which Tenant shall
have an interest shall be turned over to Tenant upon delivery of such
assignment.
Any dispute between Landlord and Tenant as to whether or not more than 20%
of the Demised Premises shall have been so taken shall be submitted to
arbitration pursuant to Section 25.01.
SECTION 16.06. Tenant shall not be entitled to share in any award or awards
made in condemnation proceedings for the taking of any appurtenances to the
Demised Premises, vaults, areas or projections outside of the boundaries of the
Demised Premises, or rights in, under or above the streets adjoining said lands,
or the rights and benefits of light, air or access to said streets, or for the
taking of space, or rights therein, below the surface of, or above, the Demised
Premises; provided, however, that any award or compensation received by Landlord
for any such taking shall be applied and paid over, as provided in Section
16.04, toward the cost of such demolition, repair and restoration of the
Building as shall be necessitated by such taking, and any balance remaining in
the hands of Landlord shall be retained by Landlord, and the net rent shall be
reduced and apportioned in the same manner as provided in Section 16.05 with
respect to the balance of the Net Award received and retained by Landlord in the
case of a Partial Taking.
SECTION 16.07. If the temporary use of the whole or any part of the Demised
Premises shall be taken by any lawful power or authority, by the exercise of the
right of condemnation or eminent domain, or by agreement between Tenant and
those authorized to exercise such right, Tenant shall give prompt notice thereof
to Landlord, the term of this lease shall not be reduced or affected in any way,
Tenant shall continue to pay in full the net rent, additional rent and other
charges herein reserved, without
44
reduction or abatement, and Tenant shall be entitled to receive for itself any
award or payment made for such use, provided, however, that
(a) if the taking is for a period not extending beyond the initial
term or the then current term of this lease and if such award or payment is
made in a lump sum, the same shall be paid to and held by Landlord as a
fund which Landlord shall apply from time to time to the payments due to
Landlord from Tenant under the terms of this lease, except that, if such
taking results in changes or alterations in the Building which would
necessitate an expenditure to restore the Building to its former condition,
then a portion of such award or payment considered by Landlord as
appropriate to cover the expenses of such restoration shall be retained by
Landlord, without application as aforesaid, and applied and paid over
toward the restoration of the Building to its former condition,
substantially in the same manner and subject to the same conditions as
those provided in Section 15.02 hereof with respect to insurance and other
monies, or
(b) if the taking is for a period extending beyond the initial term or
the then current term of this lease, such award or payment shall be
apportioned between Landlord and Tenant as of the stated expiration date of
such term; Tenant's share thereof shall, if paid in a lump sum, be paid to
Landlord and applied in accordance with the provisions of paragraph (a) of
this Section 16.07 and, in case the then current term of this lease shall
be extended pursuant to Article 20 hereof beyond such then current term,
Landlord shall from time to time, from and after the commencement of such
extended term, apply the sums received by it upon such apportionment to the
payments thereafter due to Landlord from Tenant under the terms
45
of this lease; provided, however, that the amount of any award or payment
allowed or retained for restoration of the Building, shall remain the
property of Landlord if the lease shall expire prior to the restoration of
the Building to its former condition.
Tenant shall also pay all fees, costs and expenses of every character of the
Landlord in connection with the eventualities provided for in this Section.
Tenant shall be entitled at the close of each year after any such taking, to
receive any surplus remaining of said award or awards, after making provision
for all payments required pursuant to paragraphs (a) and (b) of this Section
16.07.
SECTION 16.08. In the case of any taking covered by the provisions of this
Article 16, except as in Section 16.07 provided, Landlord and Tenant shall be
entitled to reimbursement from any award or awards of all reasonable costs, fees
and expenses incurred in the determination and collection of any such awards.
SECTION 16.09. If the Ground Lessor shall take and use, or permit to be
used, any portion of the Demised Premises pursuant to the Ground Lease, Landlord
shall be entitled to receive and retain any lump sum payment made by the Ground
Lessor pursuant to the Ground Lease on account of the rental value of such
portion so taken, in which event the net rent thereafter payable hereunder shall
be reduced in accordance with the provisions of Section 16.05 with the same
effect as though the amount so retained and received by Landlord had represented
a Net Award received in respect of a Partial Taking. If, however, in lieu of a
lump sum payment to Landlord by reason of such a taking by the Ground Lessor,
the Ground Rental shall be reduced or the Lessee under the Ground Lease shall be
entitled to a credit or offset in respect thereof against the Ground Rental
thereafter payable,
46
Tenant shall not be entitled to any reduction or abatement of the net rent
hereunder.
SECTION 16.10. In any case under this Article 16, where Landlord is
required to hold, apply and pay over moneys toward the cost of demolition,
repair or restoration, Tenant may elect to have such moneys paid to a trustee,
which shall be a bank or trust company having its principal office in the
Borough of Manhattan, City of New York, selected by, and whose charges shall be
paid by, Tenant. In such case such trustee shall disburse such moneys
substantially in the same manner and subject to the same conditions as an
insurance trustee disbursing insurance proceeds under Section 15.02 hereof. The
portion of said moneys which Landlord is entitled to retain shall be paid over
to Landlord by said trustee.
ARTICLE 17
VAULT SPACE
SECTION 17.01. Vaults and areas, if any, now or hereafter built extending
beyond the building line of the Demised Premises are not included within the
Demised Premises, but Tenant may occupy and use the same during the term of this
lease, subject to the Ground Lease and to such laws, permits, rules and
regulations as may be imposed by appropriate governmental authorities with
respect thereto.
SECTION 17.02. No revocation on the part of any governmental department or
authority of any license or permit to maintain and use any such vault shall in
any way affect this lease or the amount of the rent or any other charge payable
by Tenant hereunder. If any such license or permit shall be revoked, Tenant
will, at its sole cost and expense, do and perform all such work as may be
necessary to comply with any order revoking the same.
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ARTICLE 18
MORTGAGES, ASSIGNMENTS, SUBLEASES AND TRANSFERS
OF TENANT'S INTEREST
SECTION 18.01. Except as hereinafter otherwise specifically provided:
(i) neither this lease nor any interest of Tenant in this lease or in
any sublease, or in any subrents shall be sold, assigned, transferred or
otherwise disposed of, whether by operation of law or otherwise, nor shall
the Demised Premises be sublet as an entirety or substantially as an
entirety; nor
(ii) shall any of the issued and outstanding capital stock of any
corporation or corporations owning this lease as Tenant be sold, assigned,
transferred or otherwise disposed of if such sale, assignment, transfer or
other disposition will result in vesting the control of such corporation or
corporations in a person or persons, who was not a stockholder of such
corporation or corporations at the time such corporation or corporations
became the owner of this lease, pursuant to the terms hereof; nor
(iii) shall the interest or interests of any partner in any
partnership at any time owning this lease as Tenant be sold, assigned,
transferred or otherwise disposed of, if such sale, assignment, transfer or
other disposition will result in vesting the control of such partnership in
persons who were not partners at the time such partnership became the owner
of this lease, pursuant to the terms hereof;
without the prior written consent of Landlord.
After January 1, 1963, Landlord's consent to an assignment of Tenant's
interest in this lease or to any of the
48
transactions mentioned in subsections (ii) and (iii) may not be unreasonably
withheld, provided that, in the case of any such assignment the assignee shall
be a corporation or corporations qualified to do business in the State of New
York or a partnership having at least one general partner who shall be a
resident of the State of New York.
Pursuant to this Section, Landlord hereby consents to the execution and
delivery of a total sublease to ▇▇▇▇ ▇▇▇▇▇▇▇▇ substantially in the form
identified as Exhibit D, initialled by the parties hereto and herein referred to
as the "Iacavone Sublease". In the event that the Iacavone Sublease, or any
total sublease subsequently made by Tenant with Landlord's consent, shall be
terminated, whether such termination shall occur before or after January 1,
1963, Landlord agrees that it will not unreasonably withhold its consent to the
making of a new total sublease to a corporation or partnership of the type
referred to in the foregoing paragraph, in substantially the same form as the
Iacavone Sublease, except as to the rent payable under such new total sublease,
which rent shall be at least equal to the net rent and additional rent payable
hereunder and except that such new total sublease may be for a term shorter than
that of the Iacavone Sublease. The credit standing or financial responsibility
of the proposed new Total Subtenant shall not be considered by Landlord in
determining whether to withhold its consent to such new total sublease.
Not more than one total sublease shall be permitted to exist at any one
time. Not more than one partnership or three corporations may at any one time
constitute the Tenant hereunder or the Total Subtenant under any total sublease.
No consent by Landlord to an assignment of this lease or any interest
therein and no assignment made as hereinafter permitted, shall be effective
until there shall have been delivered to Landlord an agreement, or a duplicate
original of such assignment containing an agreement, in recordable form,
executed by the assignor and the proposed assignee, wherein and whereby such
assignee assumes due
49
performance of the obligations on the assignor's part to be performed under this
lease to the end of the term hereof.
Landlord's consent shall not be required for
(a) the assignment, transfer or other disposition of Tenant's interest
in this lease if such assignment, transfer or other disposition shall occur
as the result of the death or incompetency of any person, or of any partner
in a partnership, owning this lease as Tenant, nor to an assignment,
transfer or other disposition of the interest of Tenant in this lease by
any corporation or corporations or any partnership owning this lease as
Tenant either to any corporation or corporations qualified to do business
in New York or to any partnership having at least one general partner
resident in the State of New York, provided that each stockholder of such
corporation or corporations or each partner in such partnership to which
such assignment, transfer or other disposition shall be made shall either
own stock in such corporation or corporations or have an interest in such
partnership in an amount which shall be proportionately comparable to the
amount of stock owned or the interest held by such stockholder or partner
in the corporation or corporations or the partnership making the
assignment, transfer or other disposition;
(b) the assignment, transfer or other disposition of the issued and
outstanding capital stock of any corporation or corporations owning this
lease as Tenant occurring as the result of the death, incompetency or
bankruptcy of any stockholder; or the sale, assignment, transfer or other
disposition of the issued and outstanding capital stock of any corporation
or corporations owning this lease as Tenant, provided such sale,
assignment, transfer or other disposition does not result in vesting the
control of such corporation or corporations in a person or persons who was
not
50
a stockholder of such corporation or corporations at the time such
corporation or corporations became the owner of this lease pursuant to the
terms hereof;
(c) the assignment, transfer or other disposition of the interest or
interests of any partner in any partnership at any time owning this lease
as Tenant occurring as a result of the death, incompetency or bankruptcy of
such partner; or the sale, assignment or transfer or other disposition of
the interest of any such partner provided such sale, assignment, transfer
or other disposition does not result in vesting the control of such
partnership in one or more persons who were not partners in such
partnership at the time such partnership became the owner of this lease
pursuant to the terms hereof; or
(d) a pledge or hypothecation of issued and outstanding capital stock
of any corporation or corporations, or of an interest in any partnership,
owning this lease as Tenant by any stockholder in such corporation or
corporations, or by any partner in such partnership, to any savings bank,
bank or trust company or other institution under the supervision of the
Comptroller of the Currency of the United States or of the Insurance or
Banking Departments of the State of New York.
For the purpose of this Section 18.01, "control" of any corporation shall
be deemed to be vested in the person or persons owning more than 50% of the
voting power for the election of the members of the Board of Directors of such
corporation; and "control" of a partnership shall be deemed to be vested in the
person or persons owning more than 50% of the total interest in such
partnership.
Any assignment of this lease, or of the interest of Tenant hereunder, or
transfer of stock or any interest in any corporation or partnership as
aforesaid, without full
51
compliance with any and all requirements set forth in this lease shall be
invalid and of no effect against Landlord.
Upon the making of an effective assignment hereunder and the delivery by
the assignor to Landlord of the agreement of the assignee to assume the
obligations of this lease as aforesaid, all liabilities and obligations on the
part of the assignor accruing after such assignment shall terminate, provided
that upon the effective date of such assignment and thereafter all liabilities
and obligations shall be binding only upon the assignee, but nothing herein
contained shall be construed to release the assignor from any liability or
obligation which accrued prior to the effective date of such assignment. In the
event this lease shall be assigned to a partnership, or to more than one
corporation, all such corporations and all general partners in such partnership
shall assume the obligations of this lease jointly and severally; but upon any
subsequent assignment of this lease by such partnership the liabilities and
obligations of the partners in such partnership shall similarly be terminated.
SECTION 18.02. Tenant shall have the right to mortgage this lease, to
execute and deliver to a trustee a deed of trust of this lease securing bonds or
notes issued by Tenant, and to assign, pledge or hypothecate this lease as
security for any such mortgage or deed of trust: (a) to a college or university;
or (b) to a pension fund or employees' profit-sharing trust subject to
regulation by the State of New York or any agency thereof; or (c) to a savings
bank, bank, trust or insurance company, or any other monetary or lending
institution, authorized to make leasehold mortgage loans in the State of New
York, organized and existing under the laws of the United States, or any state
thereof, and authorized to do business in the State of New York and under the
supervision of the Comptroller of the Currency of the United States, or of
either the Insurance or Banking Departments of the State of New York. Any one of
the foregoing permitted
52
mortgagees is hereinafter referred to as an Institution. In connection with an
assignment of this lease as in Section 18.01 of this Article 18 provided, Tenant
may take back a purchase money Leasehold Mortgage as part of the consideration
for such assignment. Except as herein specifically permitted, Tenant shall not,
without the prior written consent of the Landlord, mortgage or pledge the
interest of Tenant in and to this lease or in and to the Demised Premises,
whether by operation of law or otherwise.
No Leasehold Mortgage shall be binding upon Landlord in the enforcement of
its rights and remedies herein and by law provided, unless and until an executed
counterpart thereof shall have been delivered to Landlord, notwithstanding any
other form of notice, actual or constructive. Any Leasehold Mortgage shall be
specifically subject and subordinate to the rights of Landlord hereunder,
including specifically, but without limitation, the rights of Landlord under
Section 18.10 hereof. Any mortgage on this lease or the interest of Tenant
hereunder without full compliance with any and all requirements hereunder shall
be invalid and no effect against Landlord. The consent by Landlord to a
Leasehold Mortgage as hereinabove provided, may be conditioned at the option of
Landlord, upon the inclusion of a clause in the leasehold mortgage substantially
to the effect that: (i) the Leasehold Mortgagee, prior to the institution of any
proceedings to foreclose any mortgage, or negotiations to accept an assignment
in lieu of a foreclosure, shall notify Landlord in writing to that effect,
(ii) Landlord shall have the right within 20 days after the giving of such
notice to purchase the mortgage and the indebtedness which it secures, at a
purchase price equal to the full amount then owing to the Leasehold Mortgagee
under said mortgage and the indebtedness which it secures, including interest
accrued and unpaid and statutory costs and allowances in the event any
foreclosure proceedings shall have commenced. No more than one Leasehold
Mortgage on this lease and no more than one leasehold
53
mortgage on any total sublease shall be permitted to exist at any one time.
SECTION 18.03. Any Consent by Landlord to a sale, assignment, total
sublease, mortgage, pledge, hypothecation, transfer of stock, or transfer of
this lease, shall apply only to the specific transaction thereby authorized and
shall not relieve Tenant from the requirement of obtaining the prior written
consent of Landlord to any further sale, assignment, mortgage, total sublease,
pledge, hypothecation, transfer of stock as aforementioned, or other transfer of
this lease. In instances where the consent of Landlord to any such transaction
may not be unreasonably withheld, then, contemporaneously with the request of
Tenant for such consent, Tenant shall submit, in writing, information reasonably
sufficient to enable Landlord to decide with respect thereto. The failure of
Landlord to reply within a period of 30 days after receipt of any such request
(or 10 days in the case of a request for consent to the making of a new total
sublease) shall be deemed to constitute the refusal of Landlord to grant
consent. The written refusal by Landlord to so consent, or Landlord's failure to
reply within such period shall, at the election to Tenant, constitute a dispute
to be determined by arbitration as provided in Article 25 hereof. The
arbitration of any such dispute, as herein provided, shall constitute the sole
remedy available to the parties with respect to any such refusal of consent.
SECTION 18.04. If a Leasehold Mortgagee shall have given to Landlord,
before any default shall have occurred under this lease, a written notice,
specifying the name and address of such mortgagee, Landlord shall give to such
Leasehold Mortgagee a copy of each notice of default by Tenant at the same time
as and whenever any such notice of default shall thereafter be given by Landlord
to Tenant, addressed to such Leasehold Mortgagee at the address last furnished
to Landlord which address
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shall (unless otherwise approved by the Landlord or except in the case of an
Institution) be in the Borough of Manhattan, City and State of New York. No such
notice by Landlord shall be deemed to have been given unless and until a copy
thereof shall have been so given to such Leasehold Mortgagee. Landlord will
accept performance by any such Leasehold Mortgagee of any convenant, condition,
or agreement on Tenant's part to be performed hereunder with the same force and
effect as though performed by Tenant, if the same shall be adequate for purposes
of compliance with the Ground Lease and if, at the time of such performance,
Landlord shall be furnished with evidence reasonably satisfactory to Landlord of
the interest in the lease claimed by the person tendering such performance.
SECTION 18.05. In case of termination of this lease by reason of the
happening of any Event of Default, Landlord shall give notice thereof to any
Leasehold Mortgagee who shall have notified Landlord of its name and address
pursuant to Section 18.04 hereof, which notice shall be addressed to such
Leasehold Mortgagee at the address last furnished to Landlord as above provided.
Landlord shall, on written request of such Leasehold Mortgagee made any time
within 30 days after the mailing of such notice, execute and deliver a new lease
of the Demised Premises to such Leasehold Mortgagee, or its designee or nominee,
for the remainder of the term of this lease, at the net rent and additional rent
and upon the covenants, conditions, limitations and agreements herein contained,
including the covenants in respect to renewals, provided that such Leasehold
Mortgagee shall have paid to Landlord all rent, additional rent and other
charges due under this lease up to and including the date of the commencement of
the term of such new lease, together with all expenses, including reasonable
attorney's fees, incident to the execution and delivery of such new lease, but
nothing herein contained shall be deemed to impose any obligation on the
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part of the Landlord to deliver physical possession of the Demised Premises to
such Leasehold Mortgagee. Any such designee or nominee of a Leasehold Mortgagee
shall be a corporation qualified to do business in the State of New York.
SECTION 18.06. No Leasehold Mortgagee shall be entitled to become the owner
of this lease by foreclosure, or by assignment in lieu of foreclosure, unless
such Leasehold Mortgagee, or its designee or nominee, shall first have delivered
to Landlord an assumption agreement, executed in recordable form, wherein and
whereby such Leasehold Mortgagee, assumes the performance of all the terms,
covenants and conditions of this lease.
SECTION 18.07. Nothing herein contained shall prevent Tenant from
subletting portions (constituting less than all or substantially all) of the
Demised Premises, provided that each such sublease shall be subject and
subordinate to this lease and to the rights of Landlord hereunder. Any total
sublease shall also be expressly subject and subordinate to this lease and to
the rights of Landlord hereunder and, subject to the provisions of Section 18.13
hereof, shall be expressly terminable at the sole election of Landlord upon the
termination of this lease.
SECTION 18.08. Tenant shall furnish Landlord with fully executed or
photo-copies of any total sublease and all subleases of space in the Demised
Premises and with such information with respect thereto as Landlord may
reasonably require and, in the case of a total sublease shall furnish Landlord
with 10 additional copies thereof. Tenant shall deliver, or cause any Total
Subtenant to deliver, to Landlord, in duplicate, within 90 days after the end of
each fiscal year of Tenant or of the Total Subtenant, as the case may be, a
statement of income and expenses for such fiscal year, and a rent schedule
showing all subleases and the duration of the respective terms thereof, with
respect to the operation of the Demised Premises,
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which statement shall be certified by an independent certified public
accountant. Such statement shall be accompanied by a statement of the names and
addresses of all stockholders in any corporation or partners in any partnership
holding this lease or any total sublease, showing the number of shares of stock
owned by each stockholder of such corporation, or the respective interests of
the partners in such partnerships, as the case may be; provided, however, that,
if at any time during the term of this lease any corporation holding this lease
or any total sublease is an Institution, or if the stock of any corporation
holding this lease or any total sublease is listed on any recognized Stock
Exchange, then a list of its stockholders shall not be required. If more than
one corporation holds this lease or any total sublease, such statement shall be
made by an officer of each such corporation.
SECTION 18.09. Tenant shall perform and observe each and every term and
condition to be performed or observed by the sublessor under all existing and
future subleases and shall and does hereby indemnify and agree to hold Landlord,
harmless from any and all liabilities, claims and causes of action arising
thereunder.
SECTION 18.10. Effective as of date of the happening of an Event of
Default, Tenant hereby assigns to Landlord all of its right, title and interest
in and to all present and future subleases and total subleases and all rents due
and to become due thereunder. After the effective date of such assignment,
Landlord shall apply any net amount collected by it from subtenants or any Total
Subtenant to the rent or additional rent due under this lease. No collection of
rent by Landlord from an assignee of this lease or from a subtenant or any Total
Subtenant shall constitute a waiver of any of the provisions of this Article 18
or an acceptance of the assignee, subtenant or Total Subtenant as a tenant or a
release of Tenant from performance by Tenant of its obligations under this
lease.
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In the event of the failure of any Subtenant to pay sub-rent to Landlord
pursuant to the foregoing assignment after the happening of an Event of Default,
any such rent thereafter collected by Tenant or any Total Subtenant shall be
deemed to constitute a trust fund for the benefit of Landlord.
Tenant shall not directly or indirectly collect or accept any payment of
rent (other than additional rent) under any sublease or total sublease more than
three months in advance of the date when the same shall become due, and such
rent, in the case of any future sublease or total sublease, shall be payable at
least every three months; provided, however, that any sublease of a store may
require the subtenant thereunder to make a rent security deposit in an amount
not exceeding ten per cent of the aggregate sub-rent reserved for the term of
such sublease.
SECTION 18.11. Tenant assumes and shall be responsible for and liable to
Landlord, for all acts and omissions on the part of any present or future
subtenant, and any violation of any of the terms, provisions or conditions of
this lease, whether by act or omission, by any subtenant or Total Subtenant
shall constitute a violation by Tenant. Wherever Landlord's consent is required
to the taking of any action by Tenant under this Article 18, Landlord's consent
shall also be required to the taking of any corresponding action by a Total
Subtenant. In no event shall a Total Subtenant be entitled to make a further
total sublease.
SECTION 18.12. Tenant shall not modify any major sublease or any total
sublease so as to reduce the rent, shorten the term, or otherwise adversely
affect to any material extent the rights of the lessor thereunder, or permit
cancellation or accept the surrender of any such sublease, without the prior
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld; provided, however, that, in the case of any major
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sublease covering one or more full floors in the Building and any additional
diversified smaller portions of space in the Building, such sublease may be
modified in order to substitute new space in the Building for some or all of the
diversified smaller space previously covered by such sublease if (a) the terms
thereof, as so modified, shall not be otherwise modified except that provision
may be made for an increase in the annual rental and for the redecoration of the
new space in accordance with the standards then in effect for redecorating space
in the Building demised to other tenants, and (b) no major sublease to any other
subtenant shall be cancelled or modified in connection with such transaction;
and provided further that Tenant may, without consent of Landlord, permit the
cancellation or accept the surrender of any total sublease or shorten the term
thereof or reduce the rent thereunder to an amount not less than the net rent
and additional rent hereunder. In addition to being subject and subordinate to
the terms of this lease, as required by the provisions of Section 18.07 hereof,
each major sublease made after the date of this lease shall contain a specific
provision to the effect that such sublease may not be modified or amended so as
to reduce the rent or shorten the term, or otherwise adversely affect to any
material extent the rights of the lessor thereunder, or be cancelled or
surrendered without the prior written consent, in each instance, of Landlord.
Each future sublease shall also contain an agreement on the part of the
subtenant to the effect that such sublease shall not terminate or be terminable
by the subtenant thereunder by reason of any termination of this lease or of any
total sublease, except that in case of the institution of any summary or other
proceeding by Landlord, any sublease made after the date of this lease may be
terminated if the subtenant thereunder is name by Landlord as a party, and
served with process, in any such proceeding for possession of the Demised
Premises or the space occupied by such subtenant, and a warrant or judgement for
possession of such space is issued in such proceeding. Each future sublease
shall contain an agreement on the part of the subtenant to the effect that
Landlord shall be given notice of, and a reasonable opportunity to cure, any
default on the part of the lessor under such sublease.
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Notwithstanding the provisions of Section 18.11 hereof, if any Total
Subtenant, in violation of the provisions of its total sublease, shall have
executed and delivered a sublease which shall not conform to the requirements of
this Section 18.12 or Section 18.07 hereof, Tenant shall not be deemed to be in
default hereunder by reason of such default by the Total Subtenant, either (a)
if such default by the Total Subtenant shall have been cured within 30 days
after Landlord shall have notified Tenant of such default by the Total
Subtenant, or (b) if Tenant shall have commenced proceedings to terminate such
total sublease within 10 days after the expiration of such 30 day period and
shall have thereafter diligently prosecuted such proceedings to completion.
SECTION 18.13. The provisions of Sections 18.04, 18.05, 18.06 and the last
paragraph of Section 18.02 hereof applicable to Leasehold Mortgagees shall be
applicable to a Total Subtenant and to a leasehold mortgagee (including in said
term a trustee of a deed of trust securing an issue of bonds or notes issued by
the Total Subtenant) of a total sublease; provided, however, that the provisions
of Section 18.05 hereof shall not be applicable to a Total Subtenant if the
Event of Default referred to in said Section 18.05 shall have resulted, directly
or indirectly, from a default by such Total Subtenant under its total sublease,
and provided further that the net rent and additional rent payable under any new
lease of the Demised Premises to such Total Subtenant or leasehold mortgagee
shall be increased to an amount equal to the fixed or basic rent and additional
rent (other than rent based on a percentage of income) payable under such total
sublease.
In the event that any Total Subtenant or any leasehold mortgagee of any
total sublease shall be entitled to exercise the rights of a Leasehold Mortgagee
under Section 18.05, and if, within the 30 day period specified in Section 18.05
more than one request for a new lease shall have been received by Landlord,
priority shall be given (regardless of the order in which such requests shall be
made or received) to any Leasehold Mortgagee of this lease making such a
request, then to any Total Subtenant making such a request and then to any
leasehold mortgagee of a total sublease making such a request.
SECTION 18.14. Landlord agrees that if is shall execute and deliver a
mortgage or deed of trust of the Ground
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Lease as referred to in Paragraphs Third and Tenth thereof, it shall require the
holder of each such mortgage or the trustee under each such deed of trust to
covenant and agree in the mortgage or deed of trust that if such holder or
trustee or the designee of either shall obtain a new lease as provided in said
Paragraphs Tenth or shall renew the Ground Lease and become the lessee
thereunder as provided in Paragraph Twelfth thereof then, provided that no Event
of Default shall be in existence at the time of the termination of the Ground
Lease and/or at the time when such new lease or renewal lease, as the case may
be, is obtained by such holder, such holder, trustee or designee shall,
simultaneously with the execution and delivery of such new lease or renewal
lease, as the case may be, enter into a new lease with Tenant, without cost or
expense to such holder, trustee or designee, for the remainder of the term of
this lease or for the corresponding renewal term of this lease, as the case may
be, and at the net rent and additional rent and upon the covenants, conditions,
limitations and agreements contained herein including the covenants in respect
to renewals.
SECTION 18.15. Notwithstanding the provisions of Article 10, paragraphs (f)
and (h) of Section 9.01 and Section 18.01 hereof, but subject in other respects
to the provisions of Article 9 hereof and subject to compliance with all
applicable provisions of the Ground Lease, Tenant or any Total Subtenant may, in
connection with the installation of air-conditioning in any office space in the
Building (i) make a chattel mortgage or mortgages upon any air-conditioning
facilities required for the purpose, or assign or pledge a portion of the
subrent payable under any sublease of the space to be air-conditioned, in either
case in order to secure the repayment of a loan obtained to finance not more
than the cost of such air-conditioning installation (including necessary related
alterations and redecorating), or (ii) purchase the necessary equipment for any
such air-conditioning facilities under a conditional sale contract or contracts;
provided, however, that
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(1) prior to the taking of any such action, Tenant or such Total Subtenant
shall have submitted to Landlord a written proposal for the air-conditioning of
such space, which proposal shall
(a) include preliminary plans and outline specifications for, and an
estimate of the cost of, the proposed installation,
(b) be conditioned upon an increase in (i) the net rent hereunder, and
(ii) the basic or fixed rent payable under any total sublease, in each case
by the amount necessary to amortize the cost of such installation and to
yield 6% per annum on the unamortized balances of such cost over a period
of not more than ten years which period, however, shall not extend beyond
the date of expiration of any sublease referred to in paragraph (c) below,
and
(c) be further conditioned upon an increase in the subrent payable
under any and all subleases covering such space, by an amount at least
sufficient to amortize the cost of such installation and to yield at least
6% per annum on the unamortized balances of such cost over the period
referred to in paragraph (b) above;
and Landlord shall have failed or refused, within a period of 20 days after
receipt of such proposal, to offer to pay for the cost of the proposed
installation on the basis so proposed.
(2) any such conditional sale contract or loan security document shall
contain provisions satisfactory to Landlord providing that the conditional
vendor or the lender, as the case may be, will not exercise any rights or
remedies after a default thereunder by the borrower or conditional purchaser, as
the case may be, unless such conditional vendor or the lender shall have
notified Landlord in writing of such default and Landlord shall have failed to
cure such default within a period of 30 days after receipt of such notice;
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(3) the subrent payable under any and all subleases of the space to be
air-conditioned shall be increased by an amount (hereinafter called the
air-conditioning rent) which shall in the aggregate be at least sufficient to
cover all payments required to be made to the conditional vendor or lender when
and as due (all of which payments shall become due within a period not in excess
of ten years and not extending beyond the term of any such sublease);
(4) the amount of air-conditioning rent for any given period which may be
assigned or pledged as security for any such loan shall not exceed the amount
required to pay the aggregate requirements for principal and interest payments
on said loan for the same period;
(5) no such loan shall be secured both by chattel mortgage and assignment
or pledge of air-conditioning rent.
Unless Landlord shall pay for the cost of such air-conditioning
installation, no increase in respect thereof shall be made in the net rent
hereunder or in the fixed or basic rent payable under any total sublease;
provided, however, that any amounts expended by Landlord to cure any default
under any such loan security document or conditional sale contract shall
constitute additional rent hereunder. If Tenant or the Total Subtenant shall
desire pursuant to this Section to air-condition any space to be leased under a
new sublease not in effect at the time of the submission to Landlord of the
proposal referred to in paragraph (1) of this Section, the part of the subrent
payable under such sublease and properly attributable to the cost of the
air-conditioning installation in such space may be treated, for purposes of this
Section, as a rent increase for air-conditioning purposes, provided, however,
that the total subrent for such space shall exceed the rent payable under the
last previous sublease of such space by an amount at least equal to the
air-conditioning rent. Landlord shall be furnished with a copy of any such
conditional sale contract or loan security document.
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ARTICLE 19
CONDITIONAL LIMITATIONS--DEFAULT PROVISIONS
SECTION 19.01. If any one or more of the following events (herein
sometimes called "Events of Default") shall happen:
(a) if default shall be made in the due and punctual payment of any
net rent or additional rent payable under this lease (on account of Ground
Rent, Impositions or otherwise) or any part thereof when and as the same
shall become due and payable, and such default shall continue for a period
of 20 days after written notice thereof from Landlord to Tenant; or
(b) if default shall be made by Tenant in the performance of or
compliance with any of the covenants, agreements, terms or provisions
contained in this lease, other than those referred to in the foregoing
paragraph (a), and such default shall continue for a period of 50 days
after written notice thereof from Landlord to Tenant, except that in
connection with a default not susceptible of being cured with due diligence
within 50 days, the time of Tenant within which to cure the same shall be
extended for such time as may be necessary to cure the same with all due
diligence, provided Tenant commences promptly and proceeds diligently to
cure the same and further provided that such period of time shall not be so
extended as to subject Landlord to any criminal liability or to the
possible termination of the Ground Lease; or
(c) if Tenant shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt or insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future applicable federal,
state or other
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statute or law, or shall seek or consent to or acquiesce in the appointment
of any trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties or of the Demised Premises or any
interest of Tenant therein; or
(d) if within 60 days after the commencement of any proceeding against
Tenant seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future applicable federal,
state or other statute or law, such proceeding shall not have been
dismissed, or if, within 60 days after the appointment, without the consent
or acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant
or of all or any substantial part of its properties or of the Demised
Premises or any interest of Tenant therein, such appointment shall not have
been vacated or stayed on appeal or otherwise, or if, within 60 days after
the expiration of any such stay, such appointment shall not have been
vacated; or
(e) if the Demised Premises shall be abandoned by Tenant;
(f) the inclusion, without Landlord's prior written consent, of
subtenants as parties to any summary or other proceedings for the recovery
of possession of the Demised Premises brought by Tenant against a Total
Subtenant;
then and in any such event Landlord at any time thereafter during the
continuance of such Events of Default may give written notice to Tenant and to
any Leasehold Mortgagee or Total Subtenant or leasehold mortgagee of a total
sublease entitled to notice of default, specifying such Event or Events of
Default and stating that this lease and the term hereby demised shall expire and
terminate on the date specified in such notice, which shall be at least 5 days
after the giving of such notice in case of an Event of Default specified in
paragraph (f) of this Section, or 20 days after the giving of such notice in
case of any other Event of Default; and upon the date specified in such notice,
subject to the provisions of Section 19.04 hereof, this lease and the term
hereby demised and all rights of Tenant under this lease shall expire and
terminate.
Nothing in the preceding paragraph shall be deemed to require Landlord to
give the 20 day notice therein provided for prior to the
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commencement of a summary proceeding for non-payment of rent or a plenary action
for the recovery of rent on account of any of the defaults specified in clause
(a), it being intended that such notice is for the purpose of creating a
conditional limitation hereunder pursuant to which this lease shall terminate
and Tenant shall become a hold-over tenant.
If, at any time during the term of this lease, this lease is owned by more
than one corporation as Tenant, the provisions of paragraphs (c) and (d) hereof
shall apply to each such corporation.
SECTION 19.02. Upon any such expiration or termination of this lease,
Tenant shall quit and peacefully surrender the Demised Premises to Landlord, and
Landlord, upon or at any time after any such expiration or termination, may
without further notice, enter upon and re-enter the Demised Premises and possess
and repossess itself thereof, by force, summary proceedings, ejectment or
otherwise, and may dispossess Tenant and remove Tenant and all other persons and
property from the Demised Premises and may have, hold and enjoy the Demised
Premises and the right to receive all rental income of and from the same.
SECTION 19.03. At any time or from time to time after any such expiration
or termination, Landlord may relet the Demised Premises or any part thereof, in
the name of Landlord or otherwise, for such term or terms (which may be greater
or less than the period which would otherwise have constituted the balance of
the term of this lease) and on such conditions (which may include concessions or
free rent) as Landlord, in its uncontrolled discretion, may determine and may
collect and receive the rents therefor. Landlord shall in no way be responsible
or liable for any failure to relet the Demised Premises or any part thereof, or
for any failure to collect any rent due upon any such reletting.
SECTION 19.04. No such expiration or termination of this lease shall
relieve Tenant of its liability and obligations under this lease, and such
liability and obligations shall survive any such expiration or termination. In
the event of any such expiration or termination, whether or not the Demised
Premises or any part thereof shall have been relet, Tenant shall pay to Landlord
the net rent and all other charges required to be paid by Tenant up to
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the time of such expiration or termination of this lease, and thereafter Tenant,
until the end of what would have been the term of this lease in the absence of
such expiration or termination, shall be liable to Landlord for, and shall pay
to Landlord, as and for liquidated and agreed current damages for Tenant's
default,
(a) the equivalent of the amount of the net rent and the other rent
and charges which would be payable under this lease by Tenant if this lease
were still in effect, less
(b) the net proceeds of any reletting effected pursuant to the
provisions of Section 19.03 hereof, after deducting all Landlord's expenses
in connection with such reletting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses, reasonable
attorneys' fees, alteration costs, and expenses of preparation for such
reletting.
Tenant shall pay such current damages (herein called "deficiency") to Landlord
monthly on the days on which the net rent would have been payable under this
lease if this lease were still in effect, and Landlord shall be entitled to
recover from Tenant each monthly deficiency as the same shall arise. At any time
after any such expiration or termination, in lieu of collecting any further
monthly deficiencies as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, as and for liquidated and
agreed final damages for Tenant's default, an amount equal to the difference
between the net rent and all additional rent reserved hereunder for the
unexpired portion of the term demised and the then fair and reasonable rental
value of the Demised Premises for the same period. In the computation of such
damages the difference between any installment of rent becoming due hereunder
after the date of termination and the fair and reasonable rental value of the
Demised Premises for the period for which such installment way payable
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shall be discounted to the date of termination at the rate of four percent (4%)
per annum. If the Demised Premises or any part thereof be re-let by Landlord for
the unexpired term of said lease, or any part thereof, before presentation of
proof of such liquidated damages to any court, commission or tribunal, the
amount of rent reserved upon such re-letting shall prima facie be the fair and
reasonable rental value for the part or the whole of the premises so re-let
during the term of the re-letting. Nothing herein contained shall limit or
prejudice the right of Landlord to prove for and obtain as liquidated damages by
reason of such termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which, such damages are to be proved, whether or not such amount be greater,
equal to, or less than the amount of the difference referred to above.
SECTION 19.05. Tenant hereby expressly waives, so far as permitted by law,
the service of any notice of intention to re-enter provided for in any statute,
and Tenant, for and on behalf of itself and all persons claiming through or
under Tenant (including but not limited to a leasehold mortgagee or other
creditor of a Total Subtenant), also waives any and all right of redemption or
re-entry or re-possession or to restore the operation of this lease in case
Tenant shall be dispossessed by a judgment or by warrant of any court or judge
or in case of re-entry or re-possession by Landlord or in case of any expiration
or termination of this lease, subject to the right of a Leasehold Mortgagee or a
Total Subtenant or a leasehold mortgagee of a total sublease to obtain a new
lease in strict accordance with the provisions of Sections 18.05 and 18.13
hereof. Landlord and Tenant, so far as permitted by law, waive and will waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on any matters whatsoever arising out of or in
any way connected with this lease, the relationship
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of Landlord and Tenant, Tenant's use or occupancy of said premises, or any claim
of injury or damage. The terms "enter", "re-enter", "entry" or "re-entry", as
used in this lease are not restricted to their technical legal meaning.
SECTION 19.06. No failure by Landlord to insist upon the strict
performance of any covenant, agreement, term or condition of this lease or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant, agreement, term or
condition. No covenant, agreement, term or condition of this lease to be
performed or complied with by Tenant, and no breach thereof, shall be waived,
altered or modified except by a written instrument executed by Landlord. No
waiver of any breach shall affect or alter this lease, but each and every
covenant, agreement, term and condition of this lease shall continue in full
force and effect with respect to any other then existing or subsequent breach
thereof.
SECTION 19.07. In the event of any breach or threatened breach by Tenant
of any of the covenants, agreements, terms or conditions contained in this
lease, Landlord shall be entitled to enjoin such breach or threatened breach and
shall have the right to invoke any right and remedy allowed at law or in equity
or by statute or otherwise as through re-entry, summary proceedings, and other
remedies were not provided for in this lease.
SECTION 19.08. Each right and remedy of Landlord provided for in this
lease shall be cumulative and shall be in addition to every other right or
remedy provided for in this lease or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by Landlord of any one or more of the rights or remedies provided for in this
lease or
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now or hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or later exercise by Landlord of any or all other
rights or remedies provided for in this lease or now or hereafter existing at
law or in equity or by statute or otherwise.
SECTION 19.09. Interest at the rate of 6% per annum shall accrue upon any
net rent or additional rent payable under this lease during any period while the
payment thereof by Tenant may be delayed.
ARTICLE 20
RENEWAL PRIVILEGES
SECTION 20.01. Subject to the provisions of Sections 20.03 and 20.04
hereof, the term of this lease may, at the option of Tenant by written notice to
Landlord as herein provided, be renewed and extended as follows:
FIRST RENEWAL TERM--May 31, 1976 to December 30, 1987
SECOND RENEWAL TERM--December 31, 1987 to December 30,2008
THIRD RENEWAL TERM--December 31, 2008 to December 30, 2029
Any such renewal option shall be exercised by written notice given by
Tenant to Landlord at least 12, and not more than 30, months prior to the
commencement of the particular renewal term, and (subject to the provisions of
Section 20.03 hereof) if such notice shall have so been given and this lease and
the Ground Lease shall be in effect on the day next preceding the commencement
of such renewal term this lease shall thereupon be automatically renewed for
such renewal term.
Each renewal term shall be upon the same terms, covenants and conditions as
in this lease provided, except
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that the net rent for each renewal term shall be Five Hundred Forty Thousand
Dollars ($540,000). There shall be no privilege to Tenant of renewals of the
terms of this lease beyond the Third Renewal Term referred to above. Payment of
all additional rent and other charges on the part of Tenant to be made as in
this lease provided shall continue to be made during each of such renewal terms.
Any termination of this lease shall terminate any right of renewal hereunder.
SECTION 20.02. In the event that Tenant shall fail to exercise its option
to renew the term of this lease within the applicable period prescribed in this
Article 20, Landlord shall give notice thereof to any Leasehold Mortgagee
entitled to notice under Section 18.04 hereof and any such Leasehold Mortgagee
may, within 30 days after the giving of such notice, elect that this lease be
renewed for the relevant renewal term upon the same terms, covenants and
conditions and with the same effect as though such option had been exercised by
Tenant as in this Article 20 provided, except that Tenant shall not be the
lessee in the renewal lease and shall have no obligations thereunder and the
Leasehold Mortgagee shall deliver to Landlord an assumption agreement, executed
in recordable form, wherein and whereby such Leasehold Mortgagee or its designee
shall assume the performance of all the terms, covenants and conditions of this
lease as so renewed.
SECTION 20.03. The attempted exercise by Tenant or a Leasehold Mortgagee,
as the case may be, of any option to renew this lease shall not become
effective, nor shall any such renewal term be created if either
(a) at the time when notice of the exercise of such option shall be
given to Landlord; or
(b) on the day next preceding the purported commencement date of the
renewal term; or
71
(c) during the period of 60 days next preceding the last date on which
Landlord may notify the Ground Lessor of exercise of its corresponding
privilege of renewing the Ground Lease,
a default hereunder shall have occurred, Tenant and such Leasehold Mortgagee
shall have been notified thereof, and such default shall not have been cured
within the time or times permitted by this lease.
SECTION 20.04. Landlord agrees that if it shall have received a notice of
renewal pursuant to this Article, it will, at least 60 days before the
expiration of the period within which notice of renewal of the Ground Lease may
be effectively given, either
(a) give notice to be Ground Lessor of its election to exercise its
corresponding renewal privilege under the Ground Lease, or
(b) give notice to Tenant and any Leasehold Mortgagee to the effect
that Landlord does not desire to renew this lease and the Ground Lease.
If Landlord shall fail to give the notice to the Ground Lessor referred to in
paragraph (a) of this Section, then and in such event (whether or not the
notices referred to in paragraph (b) of this Section shall have been given),
Tenant and any Leasehold Mortgagee shall be entitled to exercise the rights of
renewal provided for in Paragraph Twelfth of the Ground Lease, and Landlord, if
so requested, shall execute a written instrument confirming the permission
hereby granted, in which event this lease shall terminate on the expiration of
the then current term without obligation on Landlord's part to renew.
Notwithstanding the foregoing provisions of this Section, neither Tenant nor any
Leasehold Mortgagee shall be entitled to exercise any right to renew the Ground
Lease at a time when Tenant is in default hereunder and the foregoing parties
shall have received notice thereof.
72
SECTION 20.05. The provisions of Sections 20.02, 20.03 and 20.04 hereof
applicable to a Leasehold Mortgagee shall be applicable to a Total Subtenant and
to a leasehold mortgagee (including in said term a trustee of a deed of trust
securing an issue of bonds or notes issued by the Total Subtenant) of a total
sublease; provided, however, that such provisions shall not be applicable to a
Total Subtenant if Tenant shall be in default hereunder and such default shall
have resulted, directly or indirectly, from a default by such Total Subtenant
under its total sublease.
In the event that any Total Subtenant or any leasehold mortgagee of any
total sublease shall be entitled to exercise the rights of a Leasehold Mortgagee
under Section 20.02 and if, within the 30 day period specified in Section 20.02
more than one election to renew this lease shall have been received by Landlord,
priority shall be given (regardless of the order in which such elections shall
be made or received) to any Leasehold Mortgagee of this Lease making such
election, then to any Total Subtenant making such election and then to any
leasehold mortgagee of a total sublease making such election.
SECTION 20.06. If Landlord shall acquire the interest of the Ground Lessor
in and to the Demised Premises, Landlord, in addition to its rights and
obligations hereunder, shall have the same rights and obligations with respect
thereto as the Ground Lessor (including without limitation the right to collect
the Ground Rent) as though the Ground Lease was to continue in full force and
effect for the duration of the term of this lease, regardless of whether or not
the Ground Lease shall have been terminated by cancellation, merger or otherwise
after such acquisition. If Tenant or a Total Subtenant shall acquire fee title
to the Demised Premises or the Ground Lessor's interest therein, this lease and
the Ground Lease shall remain in full force and effect without affecting the
obligations of Landlord or Tenant hereunder.
73
ARTICLE 21
INVALIDITY OF PARTICULAR PROVISIONS
SECTION 21.01. If any term or provision of this lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this lease shall be valid and be enforced to the fullest extent
permitted by law.
ARTICLE 22
NOTICES
SECTION 22.01. All notices, demands and requests required under this lease
shall be in writing. All such notices, demands and requests shall be deemed to
have been properly given if served personally, or if sent by United States
registered mail, postage prepaid, addressed as hereinafter provided. All such
notices, demands and requests mailed to Landlord shall be addressed to Landlord
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇. Y., attention: Treasurer, or at such other
address (and addressed to the attention of such officer or other person) as
Landlord may from time to time designate by written notice to Tenant. Tenant
shall notify any Leasehold Mortgagee or Total Subtenant of any address so
designated by Landlord. All such notices, demands and requests mailed to Tenant
shall be addressed to Tenant at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, N. Y., c/▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, or at such other address in the City and State of New York as
Tenant may from time to time designate by written notice to Landlord. All such
notices, demands and requests mailed to any Leasehold Mortgagee or Total
Subtenant or leasehold mortgagee
74
of a total sublease shall be addressed to such Leasehold Mortagee or Total
Subtenant or leasehold mortgagee of a total sublease, as the case may be, at the
address furnished to Landlord pursuant to the provisions of Article 18 hereof,
or to such other address in the City and State of New York as such Leasehold
Mortgagee or Total Subtenant or leasehold mortgagee of a total sublease, as the
case may be, may from time to time designate by written notice to Landlord.
SECTION 22.02. Notices, demands and requests which shall be served by
registered mail upon Landlord, Tenant, any Leasehold Mortgagee or any Total
Subtenant or leasehold mortgagee of a total sublease in the manner aforesaid,
shall be deemed sufficiently served or given for all purposes hereunder at the
time such notice, demand or request shall be mailed by United States registered
mail as aforesaid in any Post Office or Branch Post Office regularly maintained
by the United States Government in the State of New York.
ARTICLE 23
CONDITION OF AND TITLE TO PROPERTY
QUIET ENJOYMENT
SECTION 23.01. Tenant represents and agrees that the Demised Premises, the
title thereto, the sidewalks and structures adjoining the same, any subsurface
conditions thereof, and the present uses and non uses thereof, have been
examined by Tenant and that Tenant accepts the same in the condition or state in
which they or any of them now are, without representation or warranty, express
or implied in fact or by law, by Landlord and without recourse to Landlord, as
to the title thereto, the nature, condition or usability thereof or the use or
uses to which the Demised Premises or any part thereof may be put.
75
SECTION 23.02. Landlord covenants and agrees that Tenant, upon paying the
net rent and all additional rent and other charges herein provided for and
observing and keeping all covenants, agreements and conditions of this lease on
its part to be observed and kept, shall quietly have and enjoy the Demised
Premises during the term of this lease without hindrance or molestation by
anyone claiming by, or through Landlord, subject, however, to the exceptions,
reservations and conditions of this lease.
SECTION 23.03. In case Landlord shall convey or otherwise dispose of its
interest in the Demised Premises, all liabilities and obligations on the part of
Landlord under this lease accruing after such conveyance or disposal shall
terminate upon such conveyance or disposal, and thereupon all such liabilities
and obligations shall be binding upon the new owner of such interest; provided,
however, that any funds held by Landlord hereunder in which Tenant has an
interest hereunder shall be turned over to the new owner of such interest or, to
the extent required by Sections 5.05 or 16.10 hereof, to the trustee or trustees
provided for in said Sections.
ARTICLE 24
EXCAVATION AND SHORING
SECTION 24.01. If any excavation shall be made or contemplated to be made
for building or other purposes upon property or streets adjacent to or nearby
the Demised Premises, Tenant either
(a) shall afford to the person or persons causing or authorized to
cause such excavation the right to enter upon the Demised Premises for the
purpose of doing such work as such person or persons shall consider to be
necessary to preserve any of the walls or structures of the Building from
injury or damage and to support the same by proper foundations, or
76
(b) shall, at Tenant's expense (without hereby waiving any claims
against the aforesaid person or persons) do or cause to be done all such
work as may be necessary to preserve any of the walls or structures of the
Building from injury or damages and to support the same by proper
foundations.
Tenant shall not, by reason of any such excavation or work, have any claim
against Landlord for damages or indemnity or for suspension, diminution,
abatement or reduction of rent under this lease.
ARTICLE 25
ARBITRATION AND APPRAISAL
SECTION 25.01. In any case in which it is provided by the terms of this
lease that any matter shall be determined by arbitration (otherwise than
pursuant to the Ground Lease), such arbitration shall be conducted in accordance
with the rules then obtaining of the American Arbitration Association, and
judgment upon the award rendered may be entered in any Court having jurisdiction
thereof.
SECTION 25.02. If it shall become necessary, for purposes of Section 16.05
hereof, to determine the appraised value of Landlord's interest in the Demised
Premises, such appraisal shall be made in accordance with the provisions of this
Section 25.02.
Concurrently with the delivery to Landlord of its notice of election to
purchase pursuant to Section 16.05 hereof, Tenant shall appoint a disinterested
person of recognized competence in the field as one of the appraisers. Within 10
days thereafter, Landlord shall by written notice to Tenant appoint a second
disinterested person of recognized competence in such field as an appraiser. The
appraisers thus appointed shall appoint a third disinterested person of
recognized competence in such field, and such three
77
appraisers shall as promptly as possible determine such value, provided,
however, that
(a) if the second appraiser shall not have been appointed as
aforesaid, the first appraiser shall proceed to determine such value; and
(b) if, within 5 days after the appointment of the second appraiser,
the two appraisers appointed by the parties shall be unable to agree upon
the appointment of a third appraiser, they shall give written notice of
such failure to agree to the parties, and, if the parties fail to agree
upon the selection of such third appraiser within 5 days after the
appraisers appointed by the parties gave notice as aforesaid, then within 5
days thereafter either of the parties upon written notice to the other
party hereto may apply for such appointment to the Supreme Court of the
State of New York or to any other court having jurisdiction and exercising
functions similar to those now exercised by the Supreme Court of the State
of New York.
Landlord and Tenant shall each be entitled to present evidence and argument to
the appraisers.
The determination of the majority of the appraisers or of the sole
appraiser, as the case may be, shall be conclusive upon the parties and judgment
upon the same may be entered in any court having jurisdiction thereof. The
appraisers shall give written notice to the parties stating their determination,
and shall furnish to each party a copy of such determination signed by them.
The expenses of such appraisal shall be borne by Tenant.
In the event of the failure, refusal or inability of any appraiser to act,
a new appraiser shall be appointed in his stead, which appointment shall be made
in the same manner as hereinbefore provided for the appointment of the appraiser
so failing, refusing or unable to act.
78
ARTICLE 26
MISCELLANEOUS
SECTION 26.01. The performance of any of the obligations of Tenant by any
subtenant or Total Subtenant shall be accepted as and deemed to be the
equivalent of the performance thereof by Tenant.
Landlord agrees, for the benefit of any Total Subtenant, that whenever,
pursuant to Section 18.11 hereof, Landlord's consent shall be required for the
taking of any action by such Total Subtenant, such consent shall not be
unreasonably withheld if, in accordance with the express provisions of Article
18, Landlord's consent to any corresponding action by Tenant could not be
unreasonably withheld. The arbitration of any dispute as to whether any such
consent by Landlord has been unreasonably withheld shall constitute the sole
remedy available to the Total Subtenant and shall be conducted as provided in
Article 25.01 hereof, at the expense of the Total Subtenant.
SECTION 26.02. At any time and from time to time, Landlord, on at least
twenty days' prior written request by Tenant, and Tenant, on at least twenty
days' prior written request by Landlord, will deliver to the party making such
request a statement in writing certifying that this lease is unmodified and in
full force and effect (or if there shall have been modifications that the same
is in full force and effect as modified and stating the modifications) and the
dates to which the net rent and other charges have been paid and stating whether
or not, to the best knowledge of the party executing such certificate, the party
requesting such statement is in default in performance of any covenant,
agreement or condition contained in this lease and, if so, specifying each such
default of which the executing party may have knowledge.
SECTION 26.03. The captions of this lease and the table of contents
preceding this lease are for convenience and reference only and in no way
define, limit or describe the scope or intent of this lease.
79
SECTION 26.04. It is the intention of the parties hereto that the estate
acquired hereunder by Tenant shall not merge with or into any other estate,
whether lesser or greater, in the Demised Premises now held or hereafter
acquired by said Tenant or by any disclosed or undisclosed principal of said
Tenant.
SECTION 26.05. This lease shall be construed and enforced in accordance
with the laws of the State of New York.
SECTION 26.06. The covenants and agreements herein contained shall bind
and inure to the benefit of Landlord, its successors and assigns, and Tenant,
its legal representatives, successors and assigns, except as otherwise provided
herein.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this lease the
day and year first above written.
▇▇▇▇ & ▇▇▇▇▇, INC.
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ [CORPORATE
Senior Vice-President SEAL]
Attest:
▇▇▇▇▇ ▇. ▇▇▇▇
Secretary
GRAYSLEB CORPORATION
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ [CORPORATE
Senior Vice-President SEAL]
Attest:
▇▇▇▇▇ ▇. ▇▇▇▇
Secretary
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (L.S.)
(▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇)
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ) ss.:
On this 30th day of December, 1957, before me personally came
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me known and known to me to be Senior Vice President of
▇▇▇▇ & ▇▇▇▇▇, INC., who being by me duly sworn deposes and says: that he resides
at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, N. Y.; that he is Senior Vice President of
▇▇▇▇ & ▇▇▇▇▇, INC., one of the corporations described in and which executed the
foregoing instrument and knows the corporate seal thereof; that the seal affixed
to the foregoing instrument is the corporate seal of ▇▇▇▇ & ▇▇▇▇▇, INC., and was
affixed thereto by authority of the Board of Directors of said corporation, and
that he signed his name thereto as Senior Vice President by like authority.
▇▇▇ ▇. ▇▇▇▇▇▇
[SEAL]
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 30th day of December, 1957, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, to me known and known to me to be Senior Vice President of GRAYSLER
CORPORATION, who being by me duly sworn deposes and says: that he resides at ▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, N. Y.; that he is Senior Vice President of
GRAYSLER CORPORATION, one of the corporations described in and which executed
the foregoing instrument, and knows the corporate seal thereof; that the seal
affixed to the foregoing instrument is the corporate seal of GRAYSLER
CORPORATION, and was affixed thereto by authority of the Board of Directors of
said corporation, and that he signed his name thereto as Senior Vice President
by like authority.
▇▇▇ ▇. ▇▇▇▇▇▇
[SEAL]
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ) ss.:
On the 30th day of December, in the year 1957, before me personally came
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, to me known to be the individual described in, and who
executed the foregoing instrument, and acknowledged that she executed the same.
▇▇▇ ▇. ▇▇▇▇▇▇
[SEAL]
82
SCHEDULE A
DESCRIPTION OF GRANT OF TERM
The term "GRANT OF TERM" shall mean the instrument made by and between The
New York Central Railroad Company (hereinafter in this Schedule and Schedule B
hereto called the "Railroad Company") and New York State Realty and Terminal
Company (hereinafter in this Schedule and Schedule B hereto called the "Realty
Company"), dated July 30, 1925, and recorded in the Office of the Register of
the County of New York (now the Office of the Register of the City of New York
in the County of New York) on September 12, 1925, in Liber 3505 of Conveyances,
at Page 347
(a) as the same may have been modified by agreements dated October 21,
1927, and November 2, 1938, and recorded in said Register's Office in Liber 3672
of Conveyances at Page 388 and Liber 4278 of Conveyances at Page 217
respectively
(b) as the same was amended, modified and extended by instruments dated
April 12, 1944, and recorded in said Register's Office on May 26, 1944, in Liber
4287 of Conveyances, at Page 201, and dated September 28, 1953, and recorded in
said Register's Office an October 9, 1953, in Liber 4854 of Conveyances, at Page
370; and
(c) as the same was amended, modified and extended by instrument dated
December 30, 1957, which instrument was executed and delivered prior to the
execution and delivery of the lease to which this Schedule is annexed.
83
SCHEDULE B
DESCRIPTION OF GROUND LEASE
The term "GROUND LEASE" shall mean the instrument made between the Realty
Company, as Lessor, and Eastern Offices, Inc., as Lessee, dated July 30, 1925,
and recorded in said Register's Officer on September 12, 1925, in Liber 3496 of
Conveyances, at Page 183
(a) as the same was modified by agreements dated respectively October 21,
1927, June 19, 1928, and November 2, 1938, and recorded respectively in said
Register's Office in Liber 3672 of Conveyances, at Page 388, Liber 3901 of
Conveyances, at Page 228, and Liber 4278 of Conveyances, at Page 217,
(b) as the same was further modified and renewed by agreement dated April
5, 1944, and supplemental agreement dated April 5, 1944, and supplemental
agreement dated April 12, 1944, and recorded in said Register's Office on May
26, 1944, in Liber 4287 of Conveyances, at Pages 208 and 195, respectively,
(c) as further modified by agreement dated July 20, 1950, and recorded in
said Register's Office on August 1, 1950, in Liber 5174 of Conveyances, at Page
265,
(d) as the same was further amended and the term thereof revised and
extended by Modified Agreement of Lease made as of January 1, 1953, and recorded
in said Register's Office on October 9, 1953, in Liber 4854 of Conveyances, at
Page 307;
(e) as the same was further modified, and the term thereof revised and
extended, by Modified Agreement of Lease dated December 30, 1957, which
instrument was executed and delivered after the instrument referred to in
paragraph (c) of Schedule A and prior to the lease to which this Schedule is
annexed.
84
SCHEDULE C
SCHEDULE FOR DETERMINATION OF AMOUNTS PAYABLE
TO LANDLORD UNDER SECTION 16.03.
LANDLORD
IF TAKING OCCURS RECEIVES
Prior to April 1,1958 ................. $ 18,000,000
Thereafter and prior to July 1,1958 ................. 17,908,683
" " " " Oct. 1,1958 ................. 17,815,990
" " " " Jan. 1,1959 ................. 17,721,900
" " " " April 1,1959 ................. 17,626,391
" " " " July 1,1959 ................. 17,529,442
" " " " Oct. 1,1959 ................. 17,431,032
" " " " Jan. 1,1960 ................. 17,331,138
" " " " April 1,1960 ................. 17,229,739
" " " " July 1,1960 ................. 17,126,810
" " " " Oct. 1,1960 ................. 17,022,330
" " " " Jan. 1,1961 ................. 16,916,275
" " " " April 1,1961 ................. 16,808,621
" " " " July 1,1961 ................. 16,699,345
" " " " Oct. 1,1961 ................. 16,588,421
" " " " Jan. 1,1962 ................. 16,475,824
" " " " April 1,1962 ................. 16,361,531
" " " " July 1,1962 ................. 16,245,514
" " " " Oct. 1,1962 ................. 16,127,749
" " " " Jan. 1,1963 ................. 16,008,208
" " " " April 1,1963 ................. 15,886,865
" " " " July 1,1963 ................. 15,763,692
" " " " Oct. 1,1963 ................. 15,638,663
" " " " Jan. 1,1964 ................. 15,511,749
" " " " April 1,1964 ................. 15,382,922
" " " " July 1,1964 ................. 15,252,153
" " " " Oct. 1,1964 ................. 15,119,412
" " " " Jan. 1,1965 ................. 14,984,670
" " " " April 1,1965 ................. 14,847,897
" " " " July 1,1965 ................. 14,709,063
" " " " Oct. 1,1965 ................. 14,568,135
" " " " Jan. 1,1966 ................. 14,425,082
" " " " April 1,1966 ................. 14,279,874
" " " " July 1,1966 ................. 14,132,476
" " " " Oct. 1,1966 ................. 13,982,856
" " " " Jan. 1,1967 ................. 13,830,980
" " " " April 1,1967 ................. 13,676,815
" " " " July 1,1967 ................. 13,520,326
85
LANDLORD
IF TAKING OCCURS RECEIVES
Thereafter and prior to Oct. 1, 1967 .............. 13,361,478
" " " " Jan. 1, 1968 .............. 13,200,235
" " " " April 1, 1968 .............. 13,036,562
" " " " July 1, 1968 .............. 12,870,421
" " " " Oct. 1, 1968 .............. 12,701,775
" " " " Jan. 1, 1969 .............. 12,530,587
" " " " April 1, 1969 .............. 12,356,819
" " " " July 1, 1969 .............. 12,180,430
" " " " Oct. 1, 1969 .............. 12,001,383
" " " " Jan. 1, 1970 .............. 11,819,637
" " " " April 1, 1970 .............. 11,635,150
" " " " July 1, 1970 .............. 11,447,883
" " " " Oct. 1, 1970 .............. 11,257,793
" " " " Jan. 1, 1971 .............. 11,064,836
" " " " April 1, 1971 .............. 10,868,971
" " " " July 1, 1971 .............. 10,670,154
" " " " Oct. 1, 1971 .............. 10,468,339
" " " " Jan. 1, 1972 .............. 10,263,482
" " " " April 1, 1972 .............. 10,055,536
" " " " July 1, 1972 .............. 9,844,456
" " " " Oct. 1, 1972 .............. 9,630,194
" " " " Jan. 1, 1973 .............. 9,412,701
" " " " April 1, 1973 .............. 9,191,930
" " " " July 1, 1973 .............. 8,967,831
" " " " Oct. 1, 1973 .............. 8,740,353
" " " " Jan. 1, 1974 .............. 8,509,446
" " " " April 1, 1974 .............. 8,275,059
" " " " July 1, 1974 .............. 8,037,137
" " " " Oct. 1, 1974 .............. 7,795,629
" " " " Jan. 1, 1975 .............. 7,550,481
" " " " April 1, 1975 .............. 7,301,636
" " " " July 1, 1975 .............. 7,049,041
" " " " Oct. 1, 1975 .............. 6,792,637
" " " " Jan. 1, 1976 .............. 6,532,368
" " " " April 1, 1976 .............. 6,268,176
" " " " June 1, 1976 .............. 6,000,000
