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EXHIBIT 10.21
AGREEMENT OF LEASE
MONY Plaza
Syracuse, New York
CONTINENTAL TOWERS,
Landlord
and
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK,
Tenant
Dated as of December 21, 1988
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TABLE OF CONTENTS
ARTICLE NO. DESCRIPTION PAGE NO.
Article 1. PREMISES 1
Article 2. TERM 1
Article 3. RENT 2
Article 4. TAXES. ASSESSMENTS, AND UTILITIES 2
Article 5. ALTERATIONS AND IMPROVEMENTS TO PREMISES 4
Article 6. TITLE TO BUILDINGS AND FIXTURES 5
Article 7. QUIET ENJOYMENT OF THE PREMISES 5
Article 8. SUBORDINATION OF LEASE 5
Article 9. MORTGAGING THE PREMISES 6
Article 10. USE OF PREMISES 6
Article 11. NO UNLAWFUL OR OBJECTIONABLE USE 6
Article 12. MAINTENANCE OF PREMISES 6
Article 13. FIRE AND OTHER CASUALTY 7
Article 14. INSURANCE ON PREMISES 8
Article 15. SIGNS AND ADVERTISING MATTER 9
Article 16. MECHANICS' AND OTHER LIENS 9
Article 17. PAINTING AND DECORATION 10
Article 18. INDEMNIFICATION 10
Article 19. TENANT'S COVENANTS 11
Article 20. LANDLORD'S RIGHT OF INSPECTION 11
Article 21. ASSIGNMENT AND SUBLETTING 12
Article 22. DEFAULT PROVISIONS 13
Article 23. FURTHER MAINTENANCE AND USE OBLIGATIONS
OF TENANT 14
Article 24. CONDEMNATION 14
Article 25. WAIVER OF LANDLORD 15
Article 26. HOLDING OVER 16
Article 27. OPTION TO RENEW 16
Article 28. SUCCESSION 17
Article 29. SURRENDER OF PREMISES 17
Article 30. ASBESTOS REMOVAL/HAZARDOUS WASTES 17
Article 31. BROKER'S COMMISSIONS 18
Article 32. NOTICES 19
Article 33. CAPTIONS 19
Article 34. GOVERNING LAW AND JURISDICTION 20
Article 35. EXCULPATION 20
Article 36. INTERPRETATION 20
Article 37. SEVERABILITY 20
Article 38. ESTOPPEL CERTIFICATES 21
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AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (this "Lease"), made as of the day of December,
1988, is by and between CONTINENTAL TOWERS, a New York general partnership, with
its principal place of business at c/o Green & Seifter, Attorneys, P.C.; ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (hereinafter referred to as "Landlord") and
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a New York corporation, having an
office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (hereinafter referred to as
"Tenant").
W I T N E S S E T H:
Landlord has purchased from Tenant the premises, which are more fully
defined below. The purchase was made in accordance with the terms and conditions
of an Agreement of Sale and Purchase/Leaseback of the premises between Landlord
and Tenant dated October 27, 1988 (the "Agreement"). The Agreement is attached
hereto as Exhibit A and is hereby incorporated by reference. As part of the
Agreement, Landlord and Tenant have agreed that Tenant shall lease the premises
from Landlord. In the case of any conflict between the provisions of the
Agreement and the provisions of this Lease, the provisions of this Lease shall
govern.
Therefore, in consideration of the rent hereinafter required to be paid
and the performance of the covenants and agreements hereinafter provided,
Landlord and Tenant by these presents hereby covenant and agree as follows:
ARTICLE 1. PREMISES
Landlord does hereby lease and demise unto Tenant and Tenant does
hereby rent from Landlord, subject to the terms and conditions of this Lease,
the parcel of land and the improvements thereon consisting of two (2) office
towers of 19 stories each connected by a 5-story office wing, which improvements
contain approximately ▇▇▇,▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ and
approximately 578,970 square feet of net rentable office area, subject to the
terms of that certain lease agreement dated December 31, 1968 between Tenant and
the City of Syracuse and subject to that certain operating agreement dated
August 1, 1981, copies of which lease and operating agreement are attached as
Exhibits H and J to the Agreement, located at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, said parcel of land being more particularly described in Exhibit B
attached hereto and made a part hereof, together with all fixtures, equipment,
and other property purchased by Landlord from Tenant, all of the above being
hereinafter called the "Premises."
ARTICLE 2. TERM
This Lease shall be an initial or original term of twenty (20) years
commencing as of the date hereof and ending on the day of December, 2008, plus
any extended term as hereinafter provided.
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ARTICLE 3. RENT
Tenant covenants and agrees to pay unto Landlord the base net rentals
in accordance with Exhibit C attached hereto and made a part hereof commencing
as of the date hereof and on the first day of each and every month hereafter, in
advance, through the entire term of this Lease, together with such increase of
said annual and monthly fixed net rent, in accordance with the provisions of
this Lease as hereinafter provided. If Landlord so requires, Tenant shall make
all or part of the rental payments directly to Landlord's lender provided Tenant
receives written notice from Landlord directing Tenant to make such payments to
lender.
All rent (including all sums payable as rent in accordance with the
preceding paragraph and as hereinafter provided) shall be construed in every
instance as an absolute net rent payable by Tenant to Landlord.
This Lease is an absolute net lease, and the annual rent and all other
sums payable hereunder to or on behalf of Landlord shall be paid without notice
or demand and without setoff, counterclaim, abatement, suspension, deduction, or
defense. It is the express intent of the parties hereto that the annual rent
provided to be paid by Tenant to Landlord under the terms of Article 3 hereof
shall be an absolute net rent payable to Landlord and that Tenant shall, in any
or all events and at its sole cost and expense and in addition to the said
monthly rental, pay any and all other items of expense in connection with the
Premises of whatever nature, including but not limited to all taxes and
assessments imposed by any governmental authority on the Premises, the building
now or hereafter existing thereon or attached thereto, the contents thereof, and
the use thereof, together with the procurement and maintenance by Tenant of the
insurance hereinafter specified. This Lease shall always be construed in order
to effectuate the foregoing declared intent of the parties hereto. If Tenant or
Landlord shall so require, Landlord and Tenant shall enter into a memorandum of
lease, which shall be recorded in the appropriate land records in order to
document the terms and conditions hereof.
ARTICLE 4. TAXES. ASSESSMENTS, AND UTILITIES
Tenant agrees to pay when due or payable all charges for all utilities
(including gas, oil, water, and electricity) furnished to and consumed in the
operation of and used by the Premises. Tenant shall make its own arrangements
for all utilities, and Landlord shall be under no obligation to furnish any
utilities to the Premises. Landlord shall not be liable for any interruption or
failure in the supply of any such utilities to the Premises.
Landlord and Tenant hereby acknowledge that they have entered into that
certain agreement with the City of Syracuse dated December 1988, which agreement
requires certain payments thereunder in lieu of the payment of real estate
taxes. Tenant hereby agrees to make the payments due under the aforementioned
agreement.
Tenant further agrees that it will at all times keep sufficient heat in
the building to prevent the existing pipes therein from freezing. Tenant agrees
to pay all real estate taxes, assessments, water rents or rates, sewerage
charges, public dues, and similar
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charges of all kinds levied, assessed, or imposed or to be levied, assessed, or
imposed on or against the Premises (including land and any improvements now or
hereafter erected thereon) or, in lieu thereof or instead of an increase
therein, levied, assessed, or imposed as a capital levy or otherwise on the
rents receivable or received from the Premises during the term of this Lease so
that the rent for the Premises as set forth in Article 3 hereof shall always be
absolutely net to Landlord, as provided above. Landlord agrees, to the extent it
is permitted to do so under applicable law, to elect that such taxes,
assessments, water rates, public dues, or other charges be paid on an
installment basis in the maximum number of installments permissible. Landlord
further agrees that Tenant shall be liable only for such installments thereof
which become due and payable during the term of this Lease or any renewal
thereof.
Tenant will arrange with the appropriate taxing authority to have all
tax bills, special assessments, water rents or rates, sewerage charges, public
dues, and similar charges of all kinds levied against the Premises sent to
Tenant, and Tenant will pay the same to the applicable taxing authority before
the date when they become due and payable without interest or penalty. Tenant
shall send a receipted copy of such ▇▇▇▇ to Landlord promptly after such
payment. Tenant shall bear the cost of any penalty or interest resulting from a
late payment. If Tenant shall deem itself aggrieved by any such tax, it shall
communicate such fact to Landlord, and Tenant may, in its own name or in the
name of Landlord, but at the sole cost and expense of Tenant, contest in good
faith the validity of any taxes, assessments, water rates, public dues, or other
charges. Tenant shall not, however, withhold the payment of such taxes,
assessments, water rates, public dues, or other charges unless such charges may
be contested without payment. If requested by Tenant, Landlord shall join Tenant
in any such contest, provided that Tenant agrees to protect and save harmless
Landlord from all attorneys' fees, costs, and damages resulting from any such
proceedings or from the failure of Tenant to make any such payments. During the
term of this Lease, however, Landlord shall not be permitted to join in any such
contest as a matter of right unless Tenant has consented to Landlord joining in
such contest or Tenant has not exercised its option to renew this Lease within
the time provided. Tenant shall immediately upon the termination of such
proceedings pay all such taxes, assessments, water rates, public dues, or
charges and any and all damages, interest, penalties, costs, and expenses
arising therefrom that may be adjudged against the Premises. During the time
that any such taxes, assessments, water rates, public dues, or similar charges
are being so contested in good faith by Tenant and provided that Landlord is
notified in writing thereof and is thereafter kept fully informed as to the
outcome of the various stages of any such contest, Landlord shall have no right,
except as hereinafter stated, to pay the same. Landlord agrees to cooperate with
Tenant to such extent as Tenant shall reasonably request in any such contested
proceeding, it being understood that Tenant shall promptly reimburse Landlord
for all costs and expenses thereby incurred by Landlord.
Notwithstanding anything contained or implied in this Article 4 to the
contrary, Tenant shall not permit the Premises or any part thereof to be sold,
offered for sale, or advertised for sale because of nonpayment of any such
taxes, assessments, water rent or rates, public dues, or charges, even though
such item may then be in the process of being contested as aforesaid. In the
event of any such offering for sale or the advertisement of
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sale of the Premises, by reason of any such nonpayment thereof, Tenant shall
forthwith pay said taxes, assessments, water rents or rates, public dues, or
charges, together with interest, penalties, and costs and do anything else
required to have the offering for sale or advertisement of sale withdrawn and
stopped. If Tenant fails to pay said taxes, assessments, water rents or rates,
public dues, or charges as aforesaid, Landlord may but shall not be obligated to
pay the same, and Tenant shall reimburse Landlord forthwith upon demand for the
amount so paid by Landlord and for all other costs, reasonable attorneys' fees,
expenses, and damages incurred by Landlord in connection therewith, together
with interest at the rate of fifteen percent (15%) per annum (hereinafter the
"Lease Interest Rate") on sums paid by Landlord, counting from the date of such
payment.
Nothing contained in this Lease shall require Tenant to pay any
franchise tax or any income, profit, estate, inheritance, succession tax, or
capital levy (other than a capital levy on rents as herein provided) assessed
against or payable by Landlord, nor shall any such tax be included within the
term real property taxes and assessments, provided, however, that if at any time
during the term of this Lease there shall be adopted by any applicable
governmental authority some other method of taxation on real estate as a
substitute or a modification in whole or in part for taxes on real estate, as
now levied (which substitute method of taxation is hereinafter collectively
referred to as "Substitute Taxes"), Tenant shall pay all such Substitute Taxes
as soon as they shall become due and payable. If the parties cannot agree
whether such Substitute Taxes are in substitution or modification in whole or in
part for taxes on real estate, as now levied, or on the extent to which Tenant
shall bear the cost of such Substitute Taxes, the matter shall be submitted to
arbitration by the parties in accordance with the rules then obtaining the
American Arbitration Association or its successor. In the event Landlord
advances sums to cover such Substitute Taxes pending resolution of whether such
Substitute Taxes are in substitution or modification in whole or in part for
real estate taxes that would be owed by Tenant and through arbitration it is
determined that Tenant is responsible for such Substitute Taxes or a portion
thereof, Tenant shall pay Landlord the Lease Interest Rate on those sums
advanced by Landlord for the whole or the portion of such Substitute Taxes that
are determined to be owed by Tenant.
ARTICLE 5. ALTERATIONS AND IMPROVEMENTS TO PREMISES
Tenant will not make any structural alterations to the exterior of the
Premises or any part thereof nor structural alterations to the interior which
would result in a reduction of the net rentable area of the Premises by more
than 5,000 NRA in the aggregate, during the term of the Lease and any renewals,
without first obtaining Landlord's written approval of such structural
alterations and changes, which approval shall not be unreasonably withheld or
delayed. Failure of Landlord to respond in writing to written notice by Tenant
of any such structural alterations and changes within 10 days' of receipt such
notice shall be deemed approval by Landlord.
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ARTICLE 6. TITLE TO BUILDINGS AND FIXTURES
Provided it is not in default, the Tenant is given the right to remove,
during the term of this Lease, such equipment and trade fixtures in the Leased
Premises as Tenant has paid for, provided same does not constitute part of the
realty (i.e., air conditioning or heating equipment). However, if the Tenant is
in default and moves out, or is dispossessed, and fails to remove any property,
equipment and trade fixtures, or other property within ten (10) days after such
default, dispossession, or removal, then and in that event, the said equipment
and trade fixtures or other property shall be deemed at the option of the
Landlord to be abandoned; or in lieu thereof, at the Landlord's option, the
Landlord may remove such property and charge the reasonable cost and expense of
removal and storage to the Tenant.
Anything to the contrary contained herein notwithstanding, it is
expressly understood and agreed that the Tenant may install, connect, and
operate equipment as may be deemed necessary by the Tenant for its business,
subject to compliance with applicable rules and regulations of governmental
boards and bureaus having jurisdiction thereof. Subject to the terms and
conditions of this Lease, the machinery, trade fixtures, and equipment belonging
to the Tenant shall, except as hereinabove specifically provided, at all times
be considered and intended to be personal property of the Tenant and not part of
the realty and shall be subject to removal by the Tenant, provided at the time
of such removal that the Tenant is not in default pursuant to the terms and
conditions of this Lease and that the Tenant, at its own cost and expense, pays
for any damage to the Leased Premises caused by such removal.
ARTICLE 7. QUIET ENJOYMENT OF THE PREMISES
So long as no default by Tenant has occurred and is continuing
hereunder, Landlord warrants peaceful and quiet enjoyment of the Premises by
Tenant against any act of Landlord or anyone claiming through Landlord; provided
that Landlord and its agents may enter upon and examine the Premises at
reasonable times and upon reasonable notice. Tenant reserves the right to
exclude certain security areas within the Premises from Landlord's examination.
Landlord hereby warrants that it has the right to lease the Premises.
ARTICLE 8. SUBORDINATION OF LEASE
Tenant agrees to subordinate this Lease to any future mortgage made by
Landlord to any bank, insurance company, or other lending institution; provided
that such mortgagee will agree not to disturb Tenant's rights and possession
while not in default hereunder and provided further that in the event of the
institution of foreclosure or other suit or proceeding under or pursuant to any
such mortgage, Tenant will not be made a party to any suit or proceeding, and
the same shall not affect the rights of Tenant under this Lease, but any
purchaser of said property under foreclosure or other suit or proceeding shall
take said property subject to this Lease. Tenant further agrees to execute such
nondisturbance, attornment, and subordination agreements or other similar
instruments as may reasonably be required by Landlord or such mortgages in form
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similar to the form attached to the Agreement. Such mortgagee(s) are hereinafter
referred to as "Lender." Failure of Tenant to execute such reasonable
nondisturbance, attornment, and subordination agreements, as aforesaid, within
ten (10) business days of written request by Landlord shall constitute a default
by Tenant hereunder. In addition, Tenant agrees to make reasonable changes to
the Lease form as may be reasonably requested by Lender, provided any such
changes do not, in the sole opinion of Tenant, materially affect the Tenant's
rights and obligations under the Lease.
ARTICLE 9. MORTGAGING THE PREMISES
Tenant shall not mortgage this Lease in whole or in part without the
prior written consent of the Landlord, which consent shall not be unreasonably
withheld, and, if required, the prior written consent of Lender.
ARTICLE 10. USE OF PREMISES
Tenant covenants and agrees to use and occupy the Leased Premises for
any lawful purposes.
ARTICLE 11. NO UNLAWFUL OR OBJECTIONABLE USE
Tenant, on behalf of itself and of all subtenants occupying space under
subleases covering portions of the Premises, agrees to make no unlawful use of
the Premises and agrees to comply with and carry out at its own cost and expense
all laws, ordinances, rules, regulations, and requirements affecting or
pertaining to the Premises.
ARTICLE 12. MAINTENANCE OF PREMISES
Tenant shall at all times take all measures (except for measures
completely beyond the control of Tenant) to keep the entire Premises (including
all entrances and vestibules), all partitions, windows, window frames, moldings,
glass, doors, door openers, fixtures, equipment, and appurtenances thereof
(including lighting, heating, electrical, plumbing, ventilating and air
conditioning fixtures and systems, and other mechanical equipment and
appurtenances), and all parts of the Premises in first-class condition and
repair as well as clean, orderly, sanitary, and safe, including but not limited
to doing such things as are necessary to cause the Premises to comply with
applicable laws, ordinances, rules, regulations, and orders by governmental and
public bodies and agencies. If replacement of equipment, fixtures, and
appurtenances thereof are necessary, to maintain the Property in a first class
condition, Tenant shall promptly replace the same with equipment, fixtures, and
appurtenances of substantially the same quality and shall repair all damage done
in or by said replacement.
Tenant agrees and acknowledges that it has accepted the Premises in "As
Is" condition. Tenant acknowledges that the Premises are in good order and
condition and are sufficient for all uses intended by Tenant.
Landlord shall have no obligation whatsoever with respect to the
maintenance of the Premises or any buildings or improvements thereon, whether
structural or
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nonstructural, foreseen or unforeseen, ordinary or extraordinary, all of such
maintenance to be undertaken by Tenant. Any alterations or repairs required by
public authorities shall be made by Tenant at Tenant's cost and expense. Tenant
shall comply with reasonable regulations of the fire or liability insurance
carriers who may provide insurance for the Premises as well as the requirements
promulgated by the Board of Fire Underwriters or such other appropriate agency
but only if required by law. Tenant shall return the Premises in good condition
at the end of the Lease term, reasonable wear and tear excepted.
ARTICLE 13. FIRE AND OTHER CASUALTY
(a) Except as provided herein, no loss or damage by fire or other
casualty, resulting in either partial or total destruction of any buildings or
buildings on the Premises, shall operate to terminate this Lease or to relieve
or discharge Tenant from the payment of rents or amounts collectible as rent as
they become due and payable or from the performance and fulfillment of any of
Tenant's obligations and undertakings herein. "Other casualty," as herein used,
among other things, shall include loss or damage resulting from known causes,
uprisings, and acts of God and the common enemy.
(b) If any building or improvements placed or to be placed on the
Premises, any part thereof, or any fixtures, equipment, and machinery
constituting a portion of the Premises used or intended to be used in connection
with the Premises, at any time or times during the continuance of this Lease,
shall be damaged or destroyed by fire or other casualty, Tenant, with all
reasonable diligence, shall:
(1) Repair, reconstruct, or replace such buildings or
improvements upon the same general plans and dimensions as
before the occurrence of such fire or other casualty or with
such changes or alterations as may be approved in writing by
Landlord, which approval shall not be unreasonably withheld;
and
(2) Repair, reconstruct, or replace such fixtures, equipment, and
machinery with like quality and value as before the occurrence
of such fire or other casualty or with such changes or
alterations as may be approved in writing by Landlord, which
approval shall not be unreasonably withheld.
Any such repairs, reconstruction or replacement shall be at the sole
cost and expense of Tenant and upon the completion thereof shall be free and
clear of all liens and encumbrances of any nature whatsoever, including
mechanics' liens. In the event such loss or damage by fire or other casualty
results in a loss of 33-1/3% of floor area of the Premises and such loss or
damage by fire or other casualty occurs after the first day of the third (3rd)
year prior to the end of the term or any extension hereof, Tenant, at its
option, upon thirty (30) days' notice in writing to Landlord, given at any time
within sixty (60) days after such loss or damage by fire or casualty, may elect
not to rebuild the Premises provided Tenant makes available to Landlord the
insurance proceeds insuring such fire or other casualty, as required by this
Lease, or pays to Landlord the agreed value of such
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loss and Tenant continues to pay the rent. In the event Landlord and Tenant
cannot agree on the agreed value of such loss, such value shall be determined
through arbitration by the parties in accordance with rules then obtaining of
the American Arbitration Association or its successor.
ARTICLE 14. INSURANCE ON PREMISES
Tenant, at its sole expense, shall obtain and keep in force during the
term hereof fire and extended coverage insurance on all buildings and
improvements that are or hereafter placed or built upon the Premises and on all
machinery, furniture, fixtures, and equipment of the nature acquired by Landlord
pursuant to the Agreement. The amount of such insurance shall never during the
term of this Lease be less than the greater of $66,000,000 for replacement of
the buildings only, or one hundred percent (100%) of the full replacement cost
of said buildings, improvements, machinery, fixtures, and equipment, exclusive
of foundations, which constitute a part of the Premises, with an annual
replacement cost endorsement, and Tenant will furnish to Landlord an annual
endorsement from its insurance carrier certifying that any such property is
insured to its full insurable value. Tenant hereby waives as against Landlord
any and all claims and demands of whatever nature for damages, loss, or injury
to the buildings and improvements that are or hereafter placed or built upon the
Premises and to the property of Tenant in, upon, or about the Premises which
shall result from fire or other hazards covered by such extended coverage
insurance. Tenant further agrees that each such policy of fire and extended
coverage insurance and all other policies of insurance on the Premises, which
shall be obtained by Tenant, whether required by the provisions of this Lease or
not, shall be made expressly subject to the provisions of this article and that
Tenant's insurers hereunder shall waive any right of subrogation against
Landlord.
All insurance provided for in this Article 14 and all renewals thereof
shall name Landlord as an additional insured and shall be issued by companies
reasonably approved by Landlord and any Lender. The term mortgagee or Lender as
used in this Lease shall not be deemed to include the mortgagee or lender, if
any, with respect to Tenant's interest in the Premises. The fire and extended
coverage insurance provided for herein shall be payable to Landlord, Lender, and
Tenant as their interests may appear, and any loss adjustment shall require the
joint written consent of Landlord, Lender, and Tenant. All policies shall be
subject to reasonable approval by Landlord as to form and substance and shall
expressly provide that such policies shall not be cancelled or altered without
thirty (30) days' prior written notice to Landlord and Lender. Landlord
acknowledges that Tenant may insure this Property under a blanket master policy,
in which event, only a certificate of endorsement to the master policy
reflecting the coverage will be provided.
All amounts that shall be received under any insurance policy mentioned
or described herein shall be made available to Tenant for payment of the cost of
repair, reconstruction, or replacement of any buildings, improvements,
furniture, fixtures, equipment, and machinery so damaged or destroyed. In the
event the Premises is security for a loan to Landlord, the loan documents shall
provide that the proceeds from such insurance shall be made available for
restoration of the Premises under such reasonable safeguards as may be imposed
by Lender. Any amount remaining from the proceeds of
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any such insurance funds after the repair, reconstruction, and replacement of
any buildings, improvements, furniture, fixtures, equipment, and machinery, as
herein required, if there be at that time no default on the part of Tenant in
the performance of its covenants or obligations hereunder, shall be immediately
paid to Tenant. In the event that Tenant fails or refuses to properly undertake
the reconstruction or replacement of any buildings or improvements or any
portion of the Premises damaged or destroyed by fire or other casualty within
ninety (90) days after the occurrence of such damage or destruction, Landlord
may retain and apply such insurance proceeds for said purposes, and it is hereby
authorized by Tenant to cause all of said restoration and reconstruction work to
be completed. If said insurance proceeds shall be insufficient in amount to
cover the cost of repair, reconstruction, or replacement of any buildings,
improvements, furniture, fixtures, equipment, and machinery, as herein required,
Tenant will promptly pay any deficiency to Landlord or at Landlord's direction,
except that during the last three (3) years of the term of this Lease Tenant
shall have the right to elect not to rebuild the Premises but may instead make
such insurance proceeds available to Landlord or pay to Landlord the agreed
value of such loss, all in accordance with the provisions of Article 13,
subparagraph (b) above.
Notwithstanding the foregoing provisions of this Article 14, at any
time while Tenant's net worth shall exceed Three Hundred Million and No/100
Dollars ($300,000,000.00) and at Tenant's sole discretion, Tenant may elect to
self insure its obligation to restore the Premises or Tenant may procure
insurance which may be insured under a blanket insurance policy covering the
Premises and other properties insured by Tenant. Tenant's right to self-insure
shall be subject to the reasonable approval of Landlord's Lender.
ARTICLE 15. SIGNS AND ADVERTISING MATTER
Tenant shall have the right to maintain and control all signage and
advertising matter, including signage and advertising on the roof of the
Premises, presently being maintained or hereinafter installed at the Premises,
provided that Tenant maintains such signage and advertising in compliance with
all applicable laws and insurance requirements. Landlord hereby agrees that
during the term of this Lease and any extension hereof, the Premises shall
remain known as "MONY Plaza," and Landlord shall not change the address or the
name of the Premises without obtaining Tenant's prior written consent. Provided
Tenant is not in default hereunder, Tenant shall have the right to change the
name of the Premises at its sole discretion without first obtaining Landlord's
prior consent.
ARTICLE 16. MECHANICS' AND OTHER LIENS
Tenant covenants and agrees to keep all of the Premises, every part
thereof, and all buildings and other improvements thereon free and clear of and
from any and all mechanics', materialmen's, and other liens for work or labor
done, services performed, or materials and appliances used in or about the
Premises for or in connection with any operations of Tenant, any alteration,
improvement, or repairs or additions which Tenant may make or permit or cause to
be made, or any work or construction by, for, or
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permitted by Tenant on or about the Premises, and at all times promptly and
fully to pay and discharge any and all claims upon which any such lien may or
could be based, and to save and hold Landlord and all of the Premises and all
buildings and improvements thereon free and harmless of and from any and all
such liens and claims of liens and suits or other proceedings pertaining
thereto.
Notwithstanding the foregoing, Tenant shall be permitted to contest
such mechanics', materialmen's, and other liens, provided that Landlord is
indemnified and held harmless from any claims arising from such liens. No
mechanics' or materialmen's liens, mortgages, or other liens of any character
whatsoever created or suffered by Tenant shall in any way or to any extent
affect the interest or rights of Landlord hereunder or its rights or interests
in any buildings or other improvements on the Premises or attach its title to or
rights in the Premises. In the event Landlord advances sums pursuant to the
terms of this Article 16, Tenant shall reimburse Landlord for such sums advanced
and reasonable costs in connection therewith due with the next payment of rent
due hereunder, with interest at the Lease Interest Rate due from the date such
funds are advanced. In the event Tenant's net worth shall fall below Three
Hundred Million and No/100 Dollars ($300,000,000.00) and Landlord's Lender
requires the posting of bond, or Landlord's title insurer requires the posting
of bond, Tenant shall post bond.
ARTICLE 17. PAINTING AND DECORATION
Tenant shall have the right to paint or decorate the interior and the
exterior of the Premises without first obtaining Landlord's written approval of
such painting or decoration. With respect to the interior of the Premises,
Tenant shall be permitted to perform tenant fitout, including but not limited to
relocation of walls, HVAC ducts, electrical outlets, and telephone outlets,
without obtaining Landlord's prior approval, provided that Tenant does not
impair the use of the Premises.
ARTICLE 18. INDEMNIFICATION
Tenant shall pay and shall protect, indemnify, and save harmless
Landlord against all liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and reasonable expenses), causes of action, suits,
claims, demands, or judgments of any nature, except such resulting from the
gross and wanton acts of negligence of Landlord or its agents, arising from (a)
injury to or death of any person or damage to or loss of property on the
Premises or on adjoining sidewalks, streets, or ways or connected with the use,
conditions, or occupancy of any thereof and (b) violation of this Lease.
In furtherance of the above covenant of indemnification, Tenant agrees
to keep in force at its own expense, so long as this Lease remains in effect,
public liability insurance in companies reasonably acceptable to Landlord with
respect to the Premises, in form reasonably satisfactory to Landlord, covering
Landlord and Tenant, with minimum limits of Five Million and No/100 Dollars
($5,000,000.00) on account of bodily injuries to or death of one (1) person,
Twenty Million and No/100 Dollars ($20,000,000.00) on account of bodily injuries
to or death of more than one (1) person as a result of any one accident or
disaster, and property damage insurance with minimum limits of One Million and
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No/100 Dollars ($1,000,000.00), and Tenant reserves the right to provide such
coverage under the terms of a blanket insurance policy covering the Premises and
other properties for which Tenant maintains insurance coverage. Tenant shall
provide Landlord with a certificate or certificates insuring the Premises and
shall produce such other reasonable evidence of insurance as Landlord may
require. On the commencement of the term of this Lease and thereafter not less
than thirty (30) days prior to the expiration date of the policies of insurance
required by this Article 18, Tenant shall deliver to Landlord certificates or
binders of the insurer with respect thereto which are reasonably satisfactory to
Landlord accompanied by evidence of the payment of the premiums for the
policies. Said insurance policies, certificates, or binders relating thereto
shall name Landlord as an insured. All such insurance policies shall provide
that no cancellation thereof or material change therein shall be made unless
Landlord shall have been given twenty (20) days' prior written notice thereof
and that no act or omission by Tenant shall invalidate such policies as they
apply to Landlord.
Notwithstanding the foregoing provisions of this Article 18, at any
time while Tenant's net worth shall exceed Three Hundred Million and No/100
Dollars ($300,000,000.00), Tenant may elect to self insure its covenant of
indemnification or to procure such insurance coverage as Tenant deems necessary
in its sole discretion. Tenant's right to self-insure shall be subject to the
reasonable approval of Landlord's Lender.
ARTICLE 19. TENANT'S COVENANTS
Tenant covenants and agrees that it will perform all agreements herein
expressed on its part to be performed and that it will within thirty (30) days
of receipt of written notice specifying action desired by Landlord in connection
with any such covenant commence to comply with such notice and shall proceed
diligently to comply with such notice within such thirty (30) day period. Except
in the event of an emergency where no notice shall be required, if Tenant fails
to perform all agreements herein expressed within thirty (30) days of receipt of
written notice by Landlord specifying the action desired or if Tenant fails to
commence to perform such action within the aforesaid thirty (30) day period and
fails to diligently pursue the same, Landlord may effect compliance with the
terms hereof and collect from Tenant as additional rent the reasonable cost of
such compliance, together with interest at the Lease Interest Rate from the date
Landlord advances sums to effect performance, which payments of additional rent
shall be due with the next installment of rent due hereunder.
ARTICLE 20. LANDLORD'S RIGHT OF INSPECTION
Except in the event of an emergency, Landlord may, at any reasonable
time, upon furnishing at least two (2) days' prior written notice to Tenant, and
from time to time, enter upon the Premises for the purpose of inspection of any
buildings or improvements placed thereon and for such other purposes as may be
necessary or proper for the reasonable protection of its interest. Tenant
reserves the right, however, to exclude Landlord from areas within the Premises
which Tenant deems necessary to preserve its security and equipment and the
security and equipment of any subtenant within the
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Premises, as may be required under such subtenant's lease. Any entering upon the
Premises by Landlord shall not unreasonably interfere with the operations of
Tenant or any subtenant within the Premises.
ARTICLE 21. ASSIGNMENT AND SUBLETTING
Tenant will not sell, assign, mortgage, pledge, hypothecate, or in any
manner transfer this Lease or any interest therein without Landlord's prior
written consent and the written consent of the Lender, if required by such
Lender, which consent in either such case shall not be unreasonably withheld.
However, Tenant, without the consent of Landlord, may assign its interest
hereunder to a wholly-owned affiliate or other related entity of Tenant, so long
as Tenant remains primarily obligated and liable under this Lease. It is
understood and agreed that no such assignment whether to such wholly-owned
affiliate or other related entity or otherwise with the consent of Landlord,
shall limit or modify any power or right of Landlord hereunder or effect or
reduce any obligation of Tenant hereunder, and all such obligations shall
continue in full effect as obligations of a principal and not as of a guarantor
or surety, as though no assignment or subletting had been made. Consent by
Landlord and any Lender to any assignment shall not waive the necessity for
consent to any subsequent assignment. Any attempt at transfer, assignment,
license to use, hypothecation, or other alienation of this Lease, except as
expressly permitted herein, shall be void and shall confer no rights on third
parties. Notwithstanding any assignment, transfer, or other alienation of this
Lease, Tenant shall remain fully liable on this Lease and for the performance of
all terms, covenants, and provisions of this Lease.
Notwithstanding the above, Landlord hereby acknowledges that as of the
date of commencement of this Lease, Tenant is not occupying all of the leasable
space within the office buildings constructed on the Premises, and Tenant has
previously leased space in said office buildings to the tenants identified in
Exhibit D attached hereto and made a part hereof, such space having been leased
to such tenants only pursuant to the leases to them which Landlord has approved
as of the date hereof. Landlord hereby agrees that the tenants identified in
Exhibit D shall be treated as subtenants under the terms of this Lease and shall
remain as subtenants so long as their leases remain in full force and effect.
Landlord hereby also agrees that Tenant shall have the right to continue to
sublet all or portions of the Premises without obtaining Landlord's prior
written consent provided that such sublease does not extend beyond the term
hereof, and provided further that Landlord's consent, which consent shall not be
unreasonably withheld, shall be necessary for such subleases with subtenants who
at the time are not existing tenants within the Property, entered into within
the last 912 days of the initial Lease term, provided Tenant has not exercised
its option to renew, or in the last 912 days of the first renewal term, unless
Tenant has exercised its option to renew, or in the last 912 days of the second
renewal term. Landlord agrees that so long as no default has occurred or is
continuing under this Lease, Tenant shall have the right to collect and receive
all rents and other sums due pursuant to any sublease for its own uses and
purposes.
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ARTICLE 22. DEFAULT PROVISIONS
If any of the following events (herein referred to as "events of
default") shall occur, namely, if any default shall be made by Tenant in the
payment punctually when due and payable of any rent or other monies due
hereunder and such default shall continue for a period of three (3) days after
the date due; or if Tenant shall fail to furnish all insurance coverage as
required pursuant to the terms of this Lease; or if default shall be made by
Tenant in the performance of any other of the terms, covenants, or conditions
herein contained to be performed by Tenant and such default shall continue for a
period of thirty (30) days after written notice thereof to Tenant (provided that
in the case of any such default which cannot be cured by the payment of money
and cannot with diligence be cured within such thirty (30) day period, if Tenant
shall commence promptly to cure the same and thereafter prosecute the curing
thereof with diligence, the time within which such default may be cured shall be
extended for such period as is necessary to complete the curing thereof with
diligence); or if Tenant shall abandon the Premises, provided that Tenant shall
not be in default hereunder for abandonment of the Premises if Tenant continues
to pay the rent and all other sums due hereunder and continues to perform its
covenants with respect to the maintenance of the Premises; or if Tenant shall
admit in writing its inability to pay its debts generally as they become due,
file a petition in bankruptcy, insolvency, reorganization, readjustment of debt,
dissolution, or liquidation under any law or statute of the federal government
or any state government or any subdivision of either, now or hereafter in
effect, make an assignment for the benefit of its creditors, consent to or
acquiesce in the appointment of a receiver of itself or of the whole or any
substantial part of the Premises; if there shall be filed against Tenant any
involuntary petition in bankruptcy, insolvency, reorganization, readjustment of
debt, dissolution, or liquidation under any law or statute of the federal
government or any state government or any subdivision of either, now or
hereafter in effect, and such petition shall not have been dismissed within
ninety (90) days after the filing thereof; or if an order, judgment, or decree
shall be entered by any court of competent jurisdiction appointing, without the
consent of Tenant, a receiver of Tenant or of the whole or any substantial part
of the Premises, and such order, judgment, or decree shall not be vacated or set
aside or stayed within ninety (90) days from the date of such appointment; or if
a court of competent jurisdiction shall enter an order, judgment, or decree
approving a petition filed against Tenant under any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution, or liquidation
law or statute of the federal government or any state government or any
subdivision of either, now or hereafter in effect, and such order, judgment, or
decree shall not be set aside or stayed within ninety (90) days from the date of
entry of such order, judgment, or decree, or a stay of such proceedings be
thereafter set aside; or if under the provisions of any other law for the relief
or aid of debtors, any court of competent jurisdiction shall assume custody or
control of Tenant or of the whole or any substantial part of the Premises and
such custody or control shall not be terminated within ninety (90) days from the
date of assumption of such custody or control; then in any of such event of
default, Landlord shall have the following options:
(a) To collect, by suit or otherwise, each installment of rent or other
sum as it becomes due and payable hereunder, together with interest at the Lease
Interest Rate
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from the date such installment of rent or other sum became due and payable, or
to enforce by suit or otherwise any other term or provision hereof on the part
of Tenant required to be kept or performed;
(b) To reenter and take possession of all or any part of the Premises,
with or without process of law, at any time after written notice to that effect
to Tenant, and Tenant shall immediately vacate the Premises and deliver
possession thereof to Landlord, and if Tenant does not so vacate, Landlord may
expel Tenant or any person occupying the Premises, using such force as may be
necessary, without being guilty of trespass, forcible entry, detainer, or other
tort, but nevertheless, Tenant shall, to the extent permitted by law, remain
liable for the unpaid rent and all other sums due and payable by Tenant
hereunder as such rent or other sums shall or would have become due and payable,
but there shall be credited against such unpaid rent the net proceeds realized
from the leasing of the Premises to a third party, after first deducting from
such proceeds all costs and expenses incurred in connection with such leasing,
including but not limited to reasonable advertising costs, attorneys' fees,
brokerage fees, and expenses of keeping the Premises in good order or preparing
the same for leasing; or
(c) To terminate this Lease, and in such event, Tenant agrees
immediately to surrender possession of the Premises and, to the extent permitted
by law, to pay to Landlord the amount of damage sustained by Landlord by reason
of Tenant's breach of this Lease.
ARTICLE 23. FURTHER MAINTENANCE AND USE OBLIGATIONS OF TENANT
Tenant agrees to maintain the Premises at its own expense in a clean,
orderly, and sanitary condition and free of insects, rodents, vermin, and other
pests; not to permit undue accumulation of garbage, trash, rubbish, and other
refuse and to remove the same at its own expense; to keep the ground surrounding
any building in a neat, orderly fashion; to remove all snow and ice from all
parking areas and walkways; and to conduct its business in the Premises in all
respects in a dignified manner.
ARTICLE 24. CONDEMNATION
If the whole or any substantial portion of the Premises shall be taken
under the power of eminent domain by any public or quasi-public authority so as
to preclude the use of the said Premises by Tenant in the conduct of its
business as hereinbefore provided, this Lease shall terminate on the day that
Tenant is required to yield possession thereof. If only a portion of the
Premises shall be taken under the power of eminent domain by a public or
quasi-public authority and such taking does not substantially impair the
usefulness of the Premises for the purposes for which the same are hereby
demised, Tenant shall make such repairs and alterations that may be necessary in
order to restore the Premises to a useful condition for Tenant, provided that
the proceeds of such condemnation award are paid to Tenant to be used by Tenant
for repair and restoration of the Premises. Tenant shall make the repairs and
restoration even though the amount of the award is insufficient for that
purpose, but if such award turns out to be greater than the cost of repair and
restoration, the surplus shall belong to Tenant, except such surplus
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which shall constitute the residual value of the condemned Property. In the
event the Premises is security for a loan to Landlord, the loan documents shall
provide that the proceeds from such condemnation shall be made available for
restoration of the Premises under such reasonable safeguards as may be imposed
by Lender. The rent hereinbefore provided shall be reduced proportionately as to
the portion of the Premises so taken until and unless they are subsequently
restored or repaired, said adjustment of rent to be made as of the date Tenant
is required to yield possession of a portion of the Premises as hereinbefore
provided.
In the event such taking of a portion of the Premises results in a loss
of 33-1/3% or more of the floor area of the Premises, such taking of a portion
of the Premises occurs after the first day of the third (3rd) lease year prior
to the end of the term hereof, the rent hereinbefore provided shall be reduced
proportionately as to the portion of the Premises so taken, said adjustment of
rent to be made as of the date Tenant is required to yield possession of such
portion of the Premises, in which event, all compensation awarded for any such
taking of the Premises shall belong to and be the property of Landlord,
provided, however, that Landlord shall not be entitled to any portion of any
specific separate award made to Tenant for loss of business or for the cost of
removal and the relocation of stock, fixtures, or any equipment installed at the
cost and expense of Tenant and with the permission of Landlord as provided
hereinbefore and/or hereafter, provided that Tenant actually and promptly
removes such stock, fixtures, or equipment.
ARTICLE 25. WAIVER OF LANDLORD
If any action or proceeding is instituted or if other steps are taken
by Landlord and a compromise, part payment, or settlement thereof shall be made,
either before or after judgment, the same shall not constitute or operate as a
waiver by Landlord of any right, covenant, or provision of or under this Lease
or of any subsequent breach or breaches thereof nor of this Lease itself unless
so specified in writing in such settlement. No waiver of any default under or
breach or violation of any provision or covenant of this Lease shall constitute
or operate as a waiver of such provision or covenant or of any subsequent
default thereunder or breach or violation thereof, and no delay, failure, or
omission in exercising or enforcing any right, privilege, or option under this
Lease shall constitute a waiver, abandonment, or relinquishment thereof or
prohibit or prevent any election under or enforcement or exercise of any
provision, right, privilege, or option herein contained or granted. No waiver of
any provision hereof by Landlord shall be deemed to have been made unless and
until such waiver shall have been reduced to writing and signed by Landlord. The
receipt by Landlord of rent with knowledge of any breach or default under this
Lease shall not constitute or operate as a waiver of such breach, violation, or
default. Payment by Tenant or receipt by Landlord of any lesser amount than the
stipulated rent or other sums due Landlord shall operate only as a payment on
account of said rent or other sums; no endorsement or statement on any check or
other remittance or in any communication accompanying or relating to such
payment shall operate as a compromise or accord and satisfaction unless the same
is approved in writing by Landlord, and Landlord may accept such check,
remittance, or payment without prejudice to its right to recover the balance of
said rent or other sums due by Tenant and pursue any other remedy allowable by
law or under this Lease.
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ARTICLE 26. HOLDING OVER
Any holding over after the expiration of the term hereof and any
renewals, extensions, or modifications thereof must be with the prior written
consent of Landlord and shall be construed to be a tenancy from month to month
at the rents herein specified for the then last lease year, as identified in
Exhibit C or as Exhibit C may be amended due to the exercise of any renewal
option by Tenant, (prorated on a monthly basis) and shall otherwise be on the
terms and conditions herein specified.
ARTICLE 27. OPTION TO RENEW
Provided that Tenant shall furnish written notice to Landlord by
certified or registered mail, postage prepaid, at least nine hundred twelve
(912) days prior to the termination of the original term of this Lease and at
least nine hundred twelve (912) days prior to the expiration of any Extended
Term (as provided for below), Tenant shall have two (2) consecutive options to
renew this Lease (provided, however, that no default exists on the part of
Tenant under the terms of this Lease, both as of the date of furnishing said
notice of intention to renew and as of the first date of commencement of the
applicable renewal period), and each such option shall be for an additional term
of five (5) years (Extended Term), commencing as of the day immediately
following the termination of the initial term of this Lease or any Extended
Term. Within thirty (30) days of Tenant's notice to exercise its option to renew
or to extend the term of this Lease, Landlord shall notify Tenant of the new
fixed minimum base rent, which shall be equal to 90% of the then market rate for
net leases for similar properties located in the Syracuse MSA. In the event
Tenant finds such new base rent acceptable, Tenant shall notify Landlord in
writing of such acceptance within thirty (30) days of receipt of Landlord's
notice setting forth the new base rent. In the event Tenant finds such new base
rent unacceptable, Tenant shall notify Landlord in writing of such
unacceptability within thirty (30) days of receipt of Landlord's notice setting
forth the new base rent. Within ten (10) business days of receipt of Tenant's
notice, Landlord and Tenant shall each nominate and appoint one (1) appraiser.
Upon the appointment of the two (2) appraisers, the two (2) appraisers so
appointed shall, within ten (10) business days of their appointment and before
exchanging views as to the then market rate for net leases for similar
properties located in the Syracuse MSA, appoint in writing a third appraiser and
shall give written notice of such appointment to Landlord and Tenant. The
appraisers selected pursuant hereto shall be sworn faithfully and fairly to
determine the then market rate for net leases for similar properties located in
the Syracuse MSA. The three (3) appraisers shall afford both Landlord and Tenant
a hearing and the right to submit evidence with the privilege of
cross-examination on the questions at issue. As soon as reasonably possible
after the Landlord and Tenant have been heard, each of the appraisers shall
prepare a written report, and they shall then make their determination of the
then market rate for net leases for similar properties located in the Syracuse
MSA upon the basis of those written reports. In the event the three (3)
appraisers are unable to agree upon a determination, the base rent shall be an
amount equal to 90% of the average of the two (2) closest rates contained in the
reports submitted by the three (3) appraisers. The appraisers shall make their
determination in writing and shall give notice of the same to Landlord and
Tenant. In the event Tenant finds such appraised new base rent to be
unacceptable, Tenant shall
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notify Landlord in writing of such unacceptability within thirty (30) days of
receipt of the appraiser's notice setting forth the new base rent, in which
event the option to renew shall be deemed waived by Tenant. Landlord and Tenant
shall each pay the fees and expenses of the appraiser whom they selected, and
the fee and any general expenses of the third appraiser shall be divided equally
between Landlord and Tenant. In the event any appraiser appointed as aforesaid
shall thereafter become unable or unwilling to act, such appraiser's successor
shall be appointed in the same manner as provided above. Any appraiser appointed
hereunder shall have no less than five (5) years' experience in the appraisal of
real property and shall hold the professional designation of M.A.I.
ARTICLE 28. SUCCESSION
This Lease and all of the covenants, agreements, conditions, and
provisions herein contained shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors, and assigns, as the
case may be. The term "Landlord" as used herein shall include the heirs,
successors, and assigns of Landlord and assigns of the reversionary estate under
this Lease. The term "Tenant" as used herein shall include the successors of
Tenant and the assigns of the entire leasehold estate under this Lease.
ARTICLE 29. SURRENDER OF PREMISES
On the last day or earlier permitted termination of the Lease term,
Tenant shall quit and surrender the Premises in good and orderly condition and
repair (reasonable wear and tear excepted) and shall deliver and surrender the
Premises to the Landlord peaceably Prior to the expiration of the Lease, Tenant
shall remove all of its personal property, equipment, and trade fixtures, from
the Premises. All personal property not removed by Tenant shall be deemed
abandoned by Tenant, and Landlord reserves the right to charge the reasonable
cost of such removal to the Tenant, which obligation shall survive the Lease
termination and surrender hereinabove provided. If the Premises be not
surrendered by the end of the Lease term, as it may be extended, and Tenant
holds over without the consent of Landlord as called for in Section 26, Tenant
shall pay rental to Landlord on a month-to-month basis at 150% of the rents
herein specified for the then last Lease year (prorated on a monthly basis). If
Tenant's alterations or improvements are not removed by the end of the Lease
term, as it may be extended, Tenant shall indemnify Landlord against loss or
liability resulting from Tenant's failure to remove the alterations. Tenant
shall deliver the Premises to Landlord in compliance with all applicable zoning
and municipal regulations.
ARTICLE 30. ASBESTOS REMOVAL/HAZARDOUS WASTES
Tenant hereby agrees at its sole cost and expense to remove and dispose
of all asbestos containing materials ("ACMs") existing in a friable condition
and all ACMs existing in a nonfriable condition (except for ACMs found in areas
not accessible by the general public, which areas can be maintained or
encapsulated with minimal danger of future damages and such ACMs as exist in
small quantities, which shall be allowed to remain unless such ACMs are required
by law to be removed. Generally, the ACMs will consist of certain types of pipe
and boiler insulation which are presently confined to
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equipment rooms and boiler rooms, behind closed walls and confined to specific
pieces of equipment) from the Premises as required by law or by the end of
Tenant's initial term under this Lease, whichever is earlier. Any ACM removal
and/or abatement actions initiated by Tenant shall be performed by contractors
and workmen licensed, certified, and experienced for and in ACM removal and/or
abatement. All safety and health precautions required by the EPA, OSHA, and
state and local authorities shall be complied with.
Tenant hereby agrees to indemnify and hold Landlord, its principals,
successors and/or assigns and the Landlord's mortgage lender harmless from and
against any and all reasonable costs, expenses, attorneys' and legal fees,
charges, liability, loss, or damages assessed or otherwise determined in or
arising from or in connection with any judgments, record, claims, suits,
demands, proceedings, and investigations (collectively "Claims") arising from or
related to any ACMs or ACM removal and/or abatement actions by Tenant or its
agents in and about the Premises, including but not limited to Claims by any
former, present, or future tenant; any former, present, or future employee,
agent, guest, or invitee of such tenant; or any present or future employee,
agent, guest, or invitee of Tenant, provided such Claims do not arise as the
result of a condition created by Landlord; or, subsequent to the expiration of
this Lease and vacation of the Premises by Tenant, by other intervening third
parties. During the term of this Lease, Tenant shall not knowingly permit any
tenant to create, store, or release or to allow the creation, storage, or
release of any "Hazardous Substances" (as hereinafter defined) on the Premises
unless such creation, storage, or release is in full compliance with the
applicable, federal, state, or local environmental statute, regulation, or
ordinance.
For the purposes hereof, "Hazardous Substances" shall mean asbestos and
any substance or material defined or designated as a hazardous or toxic
substance or other similar term by any federal, state, or local environmental
statute, regulation, or ordinance presently in effect or that may be promulgated
in the future, as such statutes, regulations, or ordinances may be amended from
time to time.
ARTICLE 31. BROKER'S COMMISSIONS
Landlord and Tenant hereby represent and warrant to each other that no
real estate broker(s) has been employed in connection with this Lease and hereby
agree to indemnify, protect, defend, and hold each other harmless against and
with respect to any obligation, liability, or claim of liability based in any
way on any agreements, arrangements, or understandings claimed to have been made
or actually made by Landlord or Tenant, as the case may be, with any third party
with respect to this Lease.
Notwithstanding the foregoing, Tenant shall pay and shall be solely
responsible for existing and renewal lease commissions for leases signed by
Tenant as former owner of the Premises.
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ARTICLE 32. NOTICES
Any notice required or permitted by this Lease to be given by either
party to the other shall be in writing and may be personally delivered or sent
by either overnight courier service or by registered or certified mail properly
addressed to the said parties their agents, representatives, successors, or
assigns, or some one of them, at the last known address of such addressee and
deposited with the United States Postal Service or with such overnight courier
service, and the date of such deposit shall be deemed the date of giving such
notice. Until further notice in writing to the contrary, all notices to Landlord
and Tenant shall be sent to the following addresses:
TO LANDLORD: Continental Towers
c/o Green & Seifter, Attorneys, P.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
Green & Seifter, Attorneys, P.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
TO TENANT: The Mutual Life Insurance Company of New York
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Director of Building Services
with a copy to:
The Mutual Life Insurance Company of New York
1740 Broadway, Mail Drop ▇▇-▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President-Real Estate Asset Management
ARTICLE 33. CAPTIONS
Captions and section numbers appearing in this Lease are inserted only
as a matter of convenience and in no way define, limit, construe, or describe
the scope or intent of such section of this Lease and shall not in any way
affect this Lease.
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ARTICLE 34. GOVERNING LAW AND JURISDICTION
This Lease shall be construed under and governed by the laws of the
State of New York. The parties acknowledge that this Lease has been drafted,
negotiated, made, delivered, and consummated in the State of New York.
ARTICLE 35. EXCULPATION
The term "Landlord" as used in this Lease shall be limited to mean and include
only the then lawful owner (at the time in question) of the Premises, and in the
event of any transfer or transfers of said estate, Landlord herein named (and in
case of any subsequent transfers or conveyances, the then grantor) shall be
automatically freed and relieved from and after the date of such transfer and
conveyance of all liability with respect to the performance of any covenants and
agreements on the part of Landlord contained in this Lease thereafter to be
performed. It is understood and agreed that if any Landlord or grantor shall
have committed a default prior to such transfer, Landlord or grantor committing
such default shall not be exempt from such liability attaching thereto; it being
intended that the covenants and agreements contained in this Lease on the part
of Landlord to be performed, subject to the provisions of this Lease, are
binding on Landlord, its successors, and assigns only during and in respect to
their successive periods of ownership.
Notwithstanding any provisions in this Lease to the contrary, Tenant
shall look solely to the estate and property of Landlord in the land and
building of which the Premises are a part for the satisfaction of Tenant's
remedies for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default or breach by
Landlord with respect to any of the terms, covenants, and conditions of this
Lease to be observed and/or performed by Landlord and no other property or
assets of Landlord shall be subject to levy, execution, or other enforcement
procedure for the satisfaction of Tenant's remedies.
ARTICLE 36. INTERPRETATION
It is hereby agreed that this Lease and all of the terms and provisions
hereof contain and represent the only agreement between the parties hereto as of
this date, and the same shall not be amended, modified, or changed in any manner
whatsoever except by an agreement in writing between Landlord and Tenant and/or
their successors and assigns.
ARTICLE 37. SEVERABILITY
In the event that any provision of this Lease shall be determined
invalid or unenforceable in accordance with applicable law, such provision
shall, insofar as possible, be construed or applied in such manner as will
permit enforcement. Otherwise, this Lease shall be construed as if such
provision had never been made a part hereof.
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23
ARTICLE 38. ESTOPPEL CERTIFICATES
Upon not less than thirty (30) days' prior written request, Tenant
agrees to execute, acknowledge, and deliver a statement in writing certifying
that this Lease is unmodified, in full force and effect (or if there have been
any modifications, the same are in full force and effect as modified and stating
the modifications), and the dates to which the basic rent hereof and other
charges have been paid and any other information reasonably requested. Any such
statement delivered pursuant to this article may be relied upon by any
prospective purchaser, mortgagee, or lending source. Upon not less than thirty
(30) days' prior written request, Landlord agrees to execute, acknowledge, and
deliver a statement in writing certifying, if applicable, that Tenant is current
and is not in default with respect to any monetary obligations or covenants
hereunder. Any reasonable requests of Tenant for certification of Landlord with
respect to compliance by Tenant with any other covenants or obligations of
Tenant hereunder will be given due consideration by Landlord. Appropriate
certification in response to such requests shall be in the sole discretion of
Landlord reasonably exercised.
21
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Lease as of the day and year first written above.
AS TO LANDLORD:
CONTINENTAL TOWERS,
a New York general partnership
By: Twin Towers Investors, L.P.,
a general partner
By: Continental Realty
of New York, Inc.,
WITNESS its general partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------- ---------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ S. ▇▇▇▇▇▇▇ ▇▇▇ Assistant Secretary
--------------------
By: Continental Realty Fund
Limited Partnership,
a general partner
By: Continental Realty
of New York, Inc.,
WITNESS its general partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------- ----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ S. ▇▇▇▇▇▇▇ ▇▇▇ Assistant Secretary
--------------------
AS TO TENANT:
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK,
WITNESS a New York corporation
/s/▇▇▇▇▇ ▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ Ridioff
--------------------- -------------------
▇▇▇▇▇▇▇ Ridioff
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President for
--------------------- Investment Management
Attest:
By: /s/ ▇▇▇▇▇▇ ▇. Dawrem
--------------------
Its: Assistant Secretary
-------------------
22
25
EXHIBIT A
Copy of Agreement of Sale and Purchase/Leaseback
26
CONTINENTAL REALTY OF NEW YORK, INC.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
October 27, 1998
The Mutual Life Insurance
Company of New York
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Re: MONY Tower III
Dear ▇▇▇:
This letter is to constitute a letter of intent for Continental Realty
of New York, Inc. ("CRNY"), or its assignee, so long as the assignee is an
entity in which CRNY is a principal owner, to purchase and develop the
"Southerly Half of Block" as shown on Exhibit "A" attached hereto (the "South
Site") and the property described herein in paragraph A(l); on the following
general terms and conditions:
A. Conditioned upon CRNY's agreements in B(l)-(S), MONY agrees
to:
(1) Sell to CRNY all its ownership interests in the block
bounded by ▇▇▇▇▇▇▇▇ Street, ▇▇▇▇▇▇ Street, ▇▇▇▇▇ Street and ▇▇▇▇▇▇▇▇ Place at a
price equal to MONY's total costs including but not limited to demolition costs
and costs of improvements to the property; and
(2) Sell to CRNY the South Site, including land and air
rights, at a price to be computed based upon the fair market value of the
buildable square footage; and
(3) Assign to CRNY all of its interests in the current MONY
Garage,
B. Conditioned upon MONY's agreements in A(l)-(3), CRNY agrees at
its sole expense to:
(1) Purchase all the City of Syracuse's ownership and
leasehold interest in the Parking Garage; and
(2) Restructure and refurbish in a good and workmanlike manner
the existing Parking Garage, or whatever portion thereof is retained, retaining
at least the two
27
The Mutual Life Insurance
Company of New York
October 27, 1988
Page 2
sub levels below grade, to adequate and approved standards, however, pending
such restructuring and refurbishing, the truck entrances along ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ shall remain unobstructed; and
(3) Subject to approval of the design by MONY, build an office
building of approximately 200,000 square feet ("MONY Tower III") on the South
Site and give MONY the option to lease 50,000 square feet five years at the then
market rate for leases of similar size and duration but in no event greater than
a pre-set rate in the Syracuse MSA, following completion of the building; and
(4) Build, or have built in a good and workmanlike manner,
sufficient parking spaces (which for the purposes hereof shall be defined as
1.75 spaces for every 1,000 square feet of net rentable area) to adequately
service MONY Towers 1, 11 and III, which parking spaces shall be built prior to
construction of the MONY Tower III identified above; and
(5) Effect an overall stabilization in MONY's real estate tax
obligations at the assessed rate in effect as of the date hereof.
C. Subject to D and E below, which are legally enforceable
obligations, this letter is merely an evidence of the intent of MONY and CRNY
and does not constitute legally binding obligations on either party.
D. From the date hereof through March 31, 1989 MONY agrees to
negotiate solely with CRNY to arrive at definitive agreements to carry out the
intent expressed herein, provided however that the parties hereto can agree to
extend the provisions hereof for an additional three (3) month period so long as
the parties continue negotiations in good faith.
E. MONY hereby grants to CRNY, in consideration of CRNY's
execution of an Agreement of Sale and Purchase Leaseback ("Purchase Agreement")
and execution of an Agreement of Lease, a Right of First Refusal for a period of
one year from the closing date set forth in the Purchase Agreement. Before MONY
may sell the South Site or the property described in Paragraph A(l) of this
Letter of Intent, it shall first provide CRNY with a copy of a bona fide
third-party offer and CRNY shall have thirty (30) days to agree to purchase on
the same terms as those contained in the third-party offer and within
2
28
The Mutual Life Insurance
Company of New York
October 27, 1988
Page 3
the same time frame. If CRNY does not notify MONY in writing of its decision to
exercise its Right of First Refusal within such thirty (30) day period, MONY
shall be free to sell the property and this Right of First Refusal shall lapse.
Very truly yours,
CONTINENTAL REALTY OF NEW YORK, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------
AGREED, TO AND ACCEPTED this
27th day of October, 1988
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
3
29
AGREEMENT OF SALE AND PURCHASE/LEASEBACK
THIS AGREEMENT, made and entered into as of the 27th day of October,
1988, by and between THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, a New York
corporation, with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ("Seller") and CONTINENTAL REALTY OF NEW YORK, INC., a New York
corporation, with its principal place of business at c/o Green & Seifter,
Attorneys, P.C.; ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the owner of a certain parcel of land containing
approximately 2.17 acres more or less located in the City of Syracuse, Onondaga
County, New York with building and improvements thereon, a legal description of
which is attached hereto as Exhibit A and made a part hereof, which Seller
desires to sell and Purchaser desires to purchase.
NOW, THEREFORE, for and in consideration of the covenants and
agreements hereinafter set forth and other good and valuable considerations, in
hand paid by Purchaser to Seller, the receipt and sufficiency whereof are hereby
acknowledged, Seller and Purchaser hereby covenant and agree as follows:
1. Sale of Property. Seller will sell to Purchaser and Purchaser
will purchase from Seller the following, upon the terms and conditions
hereinafter set forth:
(a) Fee simple title to that certain tract of real property
and the building and improvements thereon commonly known as "MONY Plaza,"
located at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, which
building consists of two (2) office towers of 19 stories each connected by a
5-story office wing containing approximately ▇▇▇,▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ and approximately 578,970 square feet of net rentable office area,
and which real property is more particularly described in Exhibit A attached
hereto, and all personal property described in Exhibit B attached hereto.
(b) All rights, privileges, and easements appurtenant to said
real property, including without limitation all minerals, oil, gas, and other
hydrocarbon substances in, on, or under said real property, as well as all
development rights, air rights, water, water rights, and water stock relating to
said real property, and any easements, rights-of-way, or other appurtenances
used in connection with the beneficial use and enjoyment of said real property.
(c) All right, title, and interest of Seller in and to any
unpaid awards for damages in any taking in eminent domain or by reason of change
of grade of any street.
(d) All of the interest of Seller in any intangible property
now or hereafter owned by Seller in said real property, improvements, and
personalty, including
30
without limitation the right to use any trade style or name now used in
connection with said real property (excluding the right to utilize the name
"MONY" or "MONY Plaza" or any derivation of the name "MONY", but only provided
Seller consents in writing to the use of such name) and any contract or lease
rights, agreements, utility contracts, or other rights relating to the
ownership, use, and operation of the property. Excluded from the terms hereof
shall be the interest of Seller, the City of Syracuse, and Syracuse Parking
Center, Inc., as such interests appear within the terms of the various leases,
subleases, and other agreements identified within Section 16 hereof.
All of the above being hereinafter collectively referred to as the
"Property."
Purchaser agrees to accept the aforesaid Property "As Is" in its
present condition and, further, subject to such state of facts as would be
disclosed by (i) a current, accurate survey, provided such facts do not
unreasonably interfere with the current use of the Property nor render the
Property unmarketable, (ii) personal inspection of the Property, and (iii) ▇▇▇▇▇
▇, environmental and hazardous materials site evaluation, all of which are
without any representations or warranties of any nature whatsoever by Seller;
provided however that this Agreement shall be contingent upon a satisfactory
engineering inspection and a Level I Environmental and Hazardous Materials Site
Evaluation of the Property, which Purchaser agrees to have performed within two
(2) weeks from the date hereof. In the event the Level I evaluation reveals the
need for further testing, such further testing shall be performed within two
weeks of such revelation. Provided further, however, that Purchaser shall have
no right to cancel this Agreement in the event of any non-material defect. In
the event there is a "material defect" (as hereinafter defined) within the
Property, Purchaser shall notify Seller in writing within five (5) business days
after receipt of such engineering inspection report or environmental evaluation,
and Seller at its sole election shall have the right to cure such defect, which
cure shall be commenced within thirty (30) days-of receipt of Purchaser's
notice. Seller shall notify Purchaser of its election to cure within ten (10)
business days after receipt of Purchaser's notice. In the event such cure cannot
be accomplished within said thirty (30) day period, Seller shall not be in
default hereunder provided Seller commences to cure such material defect within
the aforesaid thirty (30) day period and diligently pursues the same, in which
event the "Closing Date" (as hereinafter defined) shall not be delayed provided
Purchaser's lender would fund a loan to Purchaser pending completion of such
repair and/or remediation of the Property. For the purposes hereof, a "material
defect" shall mean a defect which is so substantial in nature as to allow a
purchaser under a contract of sale in New York to terminate the contract of sale
upon discovery. In connection with the making of an engineering inspection or
environmental evaluation of the Property, Seller agrees that it shall provide
Purchaser with a copy of any asbestos studies that Seller performs or has
performed at that Property in connection with Seller's ownership of the Property
or its obligations set forth below. Upon receipt of such report, Purchaser shall
have ten (10) business days to have such report reviewed by an independent
expert of Purchaser's choosing. Subject to the provisions of the Lease referred
to in Section 15, Purchaser undertakes to assume and perform any and all
liabilities and obligations in connection with the Property accruing from and
after the Closing Date (as hereinafter defined), except those assumed herein by
the Seller. Notwithstanding the foregoing, Seller agrees at its sole cost and
expense to remove and dispose of all asbestos containing
2
31
materials ("ACMs") existing in a friable condition and all ACMs existing in a
nonfriable condition (except for ACMs found in areas not accessible by the
general public, which areas can be maintained or encapsulated with minimal
danger of future damages and such ACMs exist in small quantities, which shall be
allowed to remain unless such ACMs are required by law to be removed. Generally,
the ACMs will consist of certain types of pipe and boiler insulation which are
presently confined to equipment rooms and boiler rooms, behind closed walls and
confined to specific pieces of equipment.) from the Property as required by law
or by the end of Seller's first lease term as "Tenant" within the Property, as
more particularly described within Section 15 below, whichever is earlier. Any
ACM removal and/or abatement actions initiated by Seller shall be performed by
contractors and workmen licensed, certified, and experienced for and in ACM
removal and/or abatement. All safety and health precautions required by the EPA,
OSHA, and state and local authorities shall be complied with.
Seller hereby agrees to indemnify and hold Purchaser, its principals,
successors, and/or assigns, and Purchaser's mortgage lender harmless from and
against any and all reasonable costs, expenses, attorneys' and legal fees,
charges, liability, loss or damages assessed or otherwise determined in or
arising from or in connection with any judgments, orders, claims, suits,
demands, proceedings and investigations (collectively "Claims") arising from or
related to any ACMs or ACM removal and/or abatement actions by Seller, or its
agents, in and about the Property, including but not limited to Claims by any
former, present, or future tenant; any former, present, or future employee,
agent, guest, or invitee of such tenant; or any present or future employee,
agent, guest, or invitee of Seller, provided such Claims do not arise as the
result of a condition created by Purchaser; or, subsequent to the expiration of
the lease referred to in Section 15 below and vacation of the Property by the
Tenant pursuant thereto by other intervening third parties. The provisions
hereof shall survive Closing and the delivery of the deed.
Notwithstanding the provisions hereinabove set forth, the existence of
any ACM'S within the Property shall not be deemed a "material defect" nor give
rise to the right of Purchaser to terminate this Agreement.
2. Purchase Price and Time Payment. The purchase price is
Sixty-Six Million Two Hundred Thousand and No/100 Dollars ($66,200,000.00)
payable as follows:
(a) Simultaneously with the signing of this Agreement,
Purchaser shall deliver to Seller a deposit of $2,000,000.00, (hereinafter the
"Deposit") in the form of a check, subject to collection. Interest earned on the
Deposit at a rate of $330 per day from the date Purchaser's check clears,
through the day before Closing, shall be the property of Purchaser and credited
against the Purchase Price at Closing.
(b) Subject to the Provision of Section 6(d), Purchaser shall
deliver to Seller $64,200,000.00 at Closing,-which funds shall be delivered to
Seller by Federal Funds wire transfer to the account of Seller or by certified
or cashier's check payable to Seller, as Seller shall direct by no later than
2:00 p.m. of the day of Closing.
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32
3. Miscellaneous Adjustments and Prorations. There shall be no
adjustment between the parties for fixed rentals, percentage rentals, tenant
security deposits, real estate taxes, assessments, water, and other utility
bills, it being the intention of the parties hereto that simultaneously with
delivery of the deed by the Seller to the Purchaser on the Closing Date that the
Property be leased back to the Seller by the Purchaser on a triple net lease
basis, as provided in Paragraph 15 hereof, and that the Seller shall remain
responsible for paying such items during the term of such triple net lease and
all extensions thereof.
4. Closing Costs. Seller shall pay at Closing (as hereinafter
defined) the New York State Real Property Transfer Gains Tax and the New York
State Transfer Tax. Purchaser shall pay at Closing the premium for its owner's
and lender's title insurance fee, mortgage tax (if applicable), and all filing
and recording fees, including the costs of recording the deed. Seller and
Purchaser hereby agree to cooperate in the execution of any and all tax forms
required to be filed in connection with this transaction.
5. Accounting Data. Seller agrees that Purchaser and its duly
authorized accountants and representatives may, during reasonable business
hours, review Seller's books and records pertaining to the operations of the
Property. If in the reasonable opinion of Purchaser's counsel any federal or
state regulatory agencies or commissions would require audited statements of the
operations of the Property, then and in that event, Purchaser and its duly
authorized representatives shall have the right to audit the books and records
of Seller, provided, however, that preparation of any audited or unaudited
accounting reports or statements by Purchaser's accountants shall not be deemed
to constitute a warranty or representation by Seller that the matters contained
in such audits are accurate
6. Purchaser's Investigations: Title: Survey: and Mortgage.
(a) Purchaser's Investigation. Seller shall make available to
Purchaser for Purchaser's review at ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, the following: rent roll and all Tenant Leases affecting the Property, as
well as any other documents or instruments of a nonconfidential nature relating
to the operation of the Property which Purchaser may reasonably request,
including without limitation (i) copies of all maintenance and supply service
contracts and a list of any such contracts that are unwritten; (ii) warranties
and guaranties, if any, covering any equipment, machinery, or other personal
property or fixtures on the Property; (iii) copies of all certificates of
occupancy and any other governmental licenses or approvals, if any, relating to
any portion of the Property in the possession of Seller. In all instances, the
documents and information provided to Purchaser in connection with its
investigation shall be kept confidential. Seller represents that it is currently
spending approximately $9.60 per square foot to operate the Premises. Purchaser
shall have fifteen (15) days from the date hereof to investigate Seller's
operating statements and related documentation, and in the event Purchaser's
investigation reveals that Seller's representation is substantially inaccurate,
Purchaser shall have the right to terminate this Agreement and receive a return
of the Deposit by providing Seller with written notice of such termination
within the aforementioned fifteen (15) day period.
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33
(b) Title. Within ten (10) business days of the date of this
Agreement, Purchaser shall obtain at its sole cost and expense a preliminary
title commitment of then current date covering the Property, accompanied by
copies of all documents referred to in the report, which title report shall have
been issued by a title insurance company licensed to do business in the state in
which the Property is located and which Property is subject to those exceptions
appearing on Exhibit C (the "Permitted Title Exceptions"), provided such
exceptions do not render title unmarketable, and no other exceptions. Within
thirty (30) days from the date hereof, Purchaser shall notify Seller in writing
of any objections it has to title, and provided such objection can be cured or
insured over, such objection shall not give rise to any right to terminate this
Agreement by Purchaser.
(c) Survey. Within ten (10) business days of the date of this
Agreement, Seller shall obtain at its sole cost and expense a plat of survey
prepared by a registered land surveyor licensed to do business in the State of
New York.
(d) Mortgage. Seller and Purchaser have agreed that the Seller
shall provide and the Purchaser shall accept first mortgage financing provided
by the Seller and secured by the Property, and in connection with such financing
Purchaser shall deposit with Seller an additional sum of one million and no/100
($1,000,000) dollars which deposit shall be in compliance with Section 2 above,
within one week from the date hereof, and which financing shall be provided on
the following terms and conditions:
1. Borrower: Purchaser or Purchaser's assignee, as provided
for in Section 19(j)
2. Amount: $56,000,000
3. Term: 5 years
4. Interest Rate: Nine and three quarters (9.75%) percent per
annum payable monthly in arrears.
5. Amortization: None.
6. Loan Prepayment: Prepayment shall be permitted at any time on any
interest installment date upon thirty (30) days
prior written notice to prepay the loan in full,
but not in part, upon payment in addition to
such principal amount and all interest accrued
thereon, of a prepayment premium equal to the
greater of the following:
A. The product obtained by multiplying:
1. The difference obtained by subtracting from
9.75% the then current yield rate on the U.S.
Treasury Note with a maturity date closest to
the fifth anniversary of the loan as such yield
is reported in The Wall Street Journal or
similar
5
34
publication on the fifth business day
preceding the prepayment date. If there are more
than one U.S. Treasury Note with a maturity date
as specified above, the average of such yield
rates shall be utilized, times;
2. The number of years and fraction thereof
remaining between the prepayment date and the
fifth anniversary of the loan, times;
3. The unpaid principal amount; or
B. One (1%) percent of the principal amount in
the event the loan is held by a party other than
Seller or its wholly owned subsidiaries, or
one-half of one (.50%) percent in the event the
loan is held by Seller or one of its wholly
owned subsidiaries.
7. Loan Documentation: All loan documentation is to be satisfactory
to Lender and its Counsel and be on forms
customarily used by MONY for similar loans.
The loan documents are to include, among
other things, an assignment of the Purchaser's
interest in the Lease referred to in Section
15 and an authorization by Purchaser as
Landlord' to MONY as Tenant thereunder to
effect payment of the Lease payments directly
to Lender to cover any interest payments due
under the loan.
8. Costs: Purchaser shall pay for all reasonable costs
related to the loan, including, but not
limited to, the mortgage recording tax,
recording fees, title insurance for the
Lender and Lender's attorneys' fees. In the
event MONY is the Lender, Purchaser shall pay to
MONY a Processing Fee of $30,000 and no
attorneys' fees for closing the loan shall be
payable.
9. Secondary Financing: Up to $5 Million will be permitted provided it
is furnished by a reputable financial
institution customarily in the business of
making such loans, or by a pension or union
sponsored retirement fund.
7. Risk of Loss. Destruction. Condemnation.
(a) Risk of loss or damage to the Property or any part thereof
by fire or other casualty from the date of this Agreement to the Closing Date
shall be on Seller.
(b) If prior to the Closing the Property or any part aged by
fire or any other cause of whatsoever nature, Seller shall promptly give
Purchaser written notice of such damage. If the cost for repairing such damage
shall, in the reasonable judgment of Purchaser, exceed $6,000,000.00, Purchaser
shall have the option, by written notice
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35
delivered to Seller within ten (10) days of Seller's written notice of damage to
Purchaser, either (i) to require Seller to convey the Property to Purchaser in
its damaged condition or (ii) to terminate this Agreement. Should Purchaser
elect to terminate this Agreement, after notice by Purchaser to Seller and after
a return of the Deposit to Purchaser, neither party hereto shall thereafter have
any further rights or obligations hereunder. If the cost for repairing such
damage shall, in the reasonable judgment of Purchaser, not exceed $6,000,000, or
if it elects to require Seller to convey the Property to Purchaser in its
damaged condition, and Purchaser and Seller shall enter into the Lease as
specified in Section 15 hereof, and all of Seller's obligations under said
Lease, including the payment of rent and repair and/or restoration of the
Property, shall thereupon commence.
(c) If during the pendency of this Agreement and prior to the
Closing Date condemnation proceedings are commenced (or threatened)
with-respect to the Property or any other land or interest herein subject to
this Agreement, which proceedings threaten to take a material portion of the
Property (as hereinafter defined), Purchaser may, at its election, terminate
this Agreement by written notice to Seller within ten (10) days after Seller's
notification to Purchaser of the commencement of condemnation proceedings. For
the purpose herein set forth, a material portion of the Property shall mean a
taking which results in a loss of 33-1/3% of the floor space within the
Property. In the event of such termination and upon return of the Deposit to
Purchaser, neither party hereto shall thereafter have any further duties or
obligations hereunder. If Purchaser fails to exercise such right to terminate
within the period prescribed, then the Seller and the Purchaser, by their
respective attorneys, shall have the right to, appear and to defend their
respective interests in the Property in such condemnation proceedings, and the
right to any award in condemnation shall be assigned to Purchaser at Closing and
shall not reduce the purchase price, but such condemnation shall give Seller the
right to reduce the payments due under the lease referred to in Section 15 below
in the same proportion as the award bears to the Purchase Price.
8. Closing. The parties hereby establish the following terms,
conditions, and procedures for the consummation of the sale of the Property as
set forth hereinbelow:
(a) Closing Procedures. This transaction shall be closed on
such date, time, and at such place as is mutually agreeable to the parties
hereto (herein "Closing Date" and "Closing") but no later than December 22,
1988, time being of the essence.
At the Closing, Seller shall cause to be delivered the following items,
and the failure of Seller to deliver any such items shall relieve Purchaser of
its obligations to purchase hereunder:
(1) A Bargain and Sale Deed with Covenant against
Grantor's Acts and lien, covenant pursuant to Section
13 of the Lien Law in form and substance satisfactory
to the title insurer, duly executed and. acknowledged
by Seller, in recordable form, conveying fee title to
the Property to Purchaser.
7
36
(2) Any and all original documents (or copies thereof if
Seller does not possess the originals) of the type
described in Paragraph 6(a) not previously delivered
to Purchaser. Seller hereby agrees that it shall
provide such reasonable documentation as may be
required by the title insurer or Purchaser's mortgage
lender in order to facilitate the Closing of this
transaction.
(3) Copies of any and all plans, permits, certificates of
occupancy, or any other governmental approvals,
permits, applications, or certificates affecting or
relating to the Property which Seller may have in its
possession.
(4) An assignment of any warranties, guaranties, and/or
service contracts, if applicable, which may affect or
relate to the Property and only if such warranties,
guaranties, and/or service contracts extend beyond
the term of the Lease contemplated within Section 15
hereof. During the term of such Lease, warranties,
guaranties, and/or service contracts shall remain the
property of Seller.
(5) The Lease, as specified in Section 15, is
substantially that as attached hereto as Exhibit D,
duly executed and acknowledged by Seller.
(6) Such corporate resolutions, duly executed,
acknowledged, and adopted, as may be necessary for
Seller to perform all obligations arising under or in
connection with this Agreement.
(7) Reasonable written evidence dated no earlier than
fifteen (15) days prior to Closing that the Property
is free of any violations of any governmental
regulations affecting the Property.
At the Closing, Purchaser shall cause to be delivered the following
items, and the failure of Purchaser to deliver any such items shall relieve
Seller of its obligations to sell hereunder:
(1) Nondisturbance, Attornment, and Subordination
Agreement from Purchaser's lender, if any,
substantially in the form of Exhibit E attached
hereto.
(b) Delivery of Purchase Price. On the Closing Date, Purchaser shall
deliver to Seller the balance of the purchase price calculated pursuant to the
Closing Statement to be prepared by the parties in accordance with the
provisions of subparagraph (c) herein below.
(c) Purchase Price Adjustments and Prorations. The following
adjustments and prorations (which shall be on a daily basis) shall be calculated
as of the Closing Date as hereinabove defined. The parties agree that they shall
prepare in form mutually satisfactory to them a Closing Statement, as of the
Closing Date, wherein they shall set
8
37
forth in reasonable detail the calculations of all of the adjustments and
prorations as hereinafter provided, if any, as well as the costs set forth in
subparagraph (d) hereinbelow.
(d) Cost of Closing.
Seller shall pay at Closing:
(1) The full, New York State Transfer Tax;
(2) The full New York State Real Property Transfer Gains
Tax;
(3) Its own attorney's fees, if any.
(4) All other usual closing costs and expenses
customarily the responsibility of Seller.
Purchaser shall pay at Closing:
(1) All intangible (and any other) taxes and recording or
filing costs associated with recording and/or filing
the deed and any loan documents entered into, in
connection with Purchaser's financing of the purchase
of the Property;
(2) The entire cost and expense of owner's policy of
title insurance and lender's policy of title
insurance (if applicable) elsewhere described herein;
(3) The full cost of recording deed (excluding the New
York State Transfer Tax and the New York State Real
Property Transfer Gains Tax);
(4) Its own attorneys' fees; and Lenders attorneys' fees
or Processing Fees to MONY should Purchaser elect to
take the Floating Rate Loan referred to in Section
6(d).
(5) All other usual closing costs and expenses
customarily the responsibility of Purchaser.
(e) Title Insurance. Purchaser shall at its own costs and expense
obtain at Closing a lender's policy of title insurance for any financing that it
has obtained in connection with the purchase of the Property and an owner's
policy of title insurance, such title policies to be issued by a title insurance
company acceptable to Purchaser and its lender, insuring the lenders mortgage as
a first priority lien on the fee simple title to the Property, subject only to
such exceptions as Purchaser's lender shall have approved as contained in the
preliminary title report pursuant to Paragraph 6(b) and the standard exceptions
contained in such policies of title insurance. Purchaser agrees in obtaining
9
38
such title insurance to protect Metro Land Services, Inc. to the extent of not
less than 25% of the gross title insurance premiums paid.
9. Representations and Warranties of Seller. Seller specifically
represents and warrants to Purchaser, both now and as of the Closing Date and
thereafter, where applicable, each and all of the following:
(a) On the Closing Date, Seller will be the owner of and have
title in fee simple to all the improvements situated thereon and shall know of
no possessory or other rights affecting the Property (other than those revealed
in Section 16 below and in the preliminary title report referred to herein)
prior to the Closing and as set forth on the attached Exhibit F ("Tenant
Leases/Possessory Rights").
(b) The legal description of the land as set forth in Exhibit
A attached hereto is substantially the same description as contained in the deed
pursuant to which Seller acquired its title, except as more particularly
described in Section 16 below, pertaining to the exclusion of the property and
the improvements thereon subject to the therein defined "City Lease South."
(c) There are no outstanding contracts made by Seller for any
improvements to the Property which have not been fully paid for, and Seller
shall cause to be discharged any and all mechanics' or materialmen's liens
arising from work for which Seller has contracted. Notwithstanding the
foregoing, in the event any mechanics' or materialmen's liens arise as a result
of work being performed on Seller's behalf, Seller reserves the right to contest
such liens provided that such lien is bonded over or other security is provided
to the title insurer so that it may insure over such mechanics' or materialmen's
lien.
(d) No notice has come to the attention of the officers of
Seller of any condemnation actions against the Property or any part thereof.
(e) No notice has come to the attention of the officers of
Seller of any special assessments against the Property other than those special
assessments set forth in the preliminary title commitment to be obtained
pursuant to Paragraph 6(b).
(f) No notice has come to the attention of the officers of
Seller of any violations of any governmental regulations affecting the Property.
(g) To the best of Seller's knowledge, Seller, as landlord, is
not in default under the terms and conditions of any Tenant Leases. Seller, as
landlord, has received no notice of any default on the part of any tenant under
any of the Tenant Leases.
(h) Seller is a corporation validly existing, in good
standing, and authorized to do business in the State of New York, and Seller has
full power and authority to execute and deliver this Agreement and to perform
all obligations arising under or in connection with this Agreement.
10
39
10. Breach of Warranties.
(a) Prior to the Closing Date, Purchaser shall notify Seller
of any breach of warranties discovered by Purchaser prior to the Closing Date.
In the event a material breach is discovered, Purchaser may either (i) terminate
this Agreement with no liability on its part or (ii) give notice that it intends
to complete the purchase irrespective of the breach, in which event the Closing
will take place as scheduled, and such breach will be considered waived. In the
event Purchaser elects to terminate this Agreement due to a material breach by
Seller, Seller shall reimburse Purchaser for its reasonable out-of-pocket
expenses incurred as a result of entering into this Agreement, and Seller shall
return the Deposit to Purchaser.
(b) In the event that Seller should fail to consummate this
Agreement for any reason, except Purchaser's default, Purchaser may (i) declare
this Agreement null and void, and Seller shall reimburse Purchaser for its
reasonable out-of-pocket expenses incurred as a result of entering into this
Agreement and shall return the Deposit to Purchaser, and thereafter, neither
Seller nor Purchaser shall have any further duties or obligations to the other
hereunder, or (ii) enforce specific performance of Seller's duties and
obligations under this Agreement.
(c) In the event that Purchaser should fail to consummate this
Agreement for any reason, except Seller's default or the termination of this
Agreement pursuant to the various termination provisions hereof, Seller may
retain the deposit paid by Purchaser to Seller pursuant to the terms of
Paragraph 2(a) hereof, which shall be Seller's sole remedy at law or in equity.
11. Modification or Alteration of Leases. With respect to the
Property and subject to the provisions of the Lease referred to in Section 15,
Seller shall be permitted to continue after execution of this Agreement to enter
into any modifications, alterations, or changes of any lease, contract, or
agreement, relating to the Property unless such modification, alteration, or
change of lease, contract, or agreement requires performance after the
expiration of Seller's lease term as "Tenant," as such term may be extended
pursuant to the terms of the lease and as more particularly described in Section
15 below.
12. Broker's Commissions. Seller and Purchaser hereby represent
and warrant to each other that no sales broker(s) have been employed in
connection with the sales transaction contemplated hereby and agree to
indemnify, protect, defend, and hold each other harmless against and with
respect to any obligation, liability, or claim of liability based in any way on
any agreements, arrangements, or understandings claimed to have been made or
actually made by Seller or Purchaser, as the case may be, with any third party
as to the sale of the Property.
Seller shall pay and shall be solely responsible for existing and
renewal lease commissions for leases signed by Seller.
13. Effect of Invalidation. If any one or more of the provisions
of this Agreement is for any reason held to be invalid, illegal, or
unenforceable in any respect by
11
40
any court, such invalidity, illegality, or unenforceability shall not affect the
validity and enforceability of any other provisions hereof, and this Agreement
shall be construed as though such invalid, illegal, or unenforceable provision
had never been contained herein. This provision shall not apply with respect to
the following Sections of this Agreement: 1, 2, 3, 4, 6, 7, 8, 9, 10, 15, 16, 18
and 19.
14. Notices. Any notice, demand, or document which either party is
required or may desire to give or deliver to or make upon the other party shall,
in the case of a notice or demand, be in writing and shall be personally
delivered or given or made by United States registered or certified mail, with
postage thereon fully prepaid, addressed as follows, subject to the right of
either party to designate a different address for itself by notice similarly
given:
TO SELLER: The Mutual Life Insurance Company of New York
1740 Broadway, Mail Drop ▇▇-▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President for
Investment Management
with a copy to:
The Mutual Life Insurance Company of New York
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Counsel-MONY Real Estate
Investment Management
TO PURCHASER: Continental Realty of New York, Inc.
c/o Green & Seifter, Attorneys, P.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ with a copy to:
Green & Seifter, Attorneys, P.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Any notice, demand, or document so given or delivered or made shall be
deemed to be given, delivered, or made on the day of actual delivery as shown by
the addressee's registry or certification receipt or on the third day after the
same is deposited in the United States mail, whichever is earlier in time. Any
such notice, demand, or document not given, delivered, or made by registered or
certified mail, as aforesaid, shall be
12
41
deemed to be given, delivered, or made upon receipt of the same by the party or
parties to whom the same is to be given, delivered, or made.
15. Leaseback of Property. At Closing, Purchaser and Seller shall
enter into a lease, the terms of which shall provide, among other things, that
Seller shall leaseback the Property, including the improvements thereon from
Purchaser, on a triple net basis for a term of twenty (20) years with two (2)
five (5) year renewal options, the form of such lease to be substantially that
as attached hereto as Exhibit D.
16. Parking Garage. Seller is currently subleasing space within
the garage below the Property and adjacent to the Property (hereinafter the
"Parking Garage") from the City of Syracuse pursuant to the terms of that
certain lease dated January 1, 1973 (hereinafter "Sublease"), a copy of which is
attached hereto as Exhibit G. The City of Syracuse is the tenant of portions of
the Parking Garage pursuant to the terms of the two (2) following leases: (1)
lease dated December 31, 1968 by and between Seller, as landlord, and the City
of Syracuse, as tenant, which lease was recorded on June 13, 1969 in the Office
of the Clerk of the County of Onondaga, New York, in Book 2405 of Deeds at page
734, (hereinafter "City Lease North"), a copy of which is attached hereto as
Exhibit H, and (2) lease dated December 31, 1968 by and between Seller, as
landlord, and the City of Syracuse, as tenant, which lease was recorded on June
13, 1969 in the Office of the Clerk of the County of Onondaga, New York, in Book
2405 of Deeds at page 753, (hereinafter "City Lease South"), a copy of which is
attached hereto as Exhibit I. The Parking Garage is currently being operated by
Syracuse Parking Center, Inc., a New York corporation, pursuant to the terms of
an Operating Agreement dated August 1, 1981, a copy of which is attached hereto
as Exhibit J. It is the intent of the Parties hereto that the Parking Garage be
operated, as a single unit. So long as Seller, or its successors or assigns, is
the owner of the portion of the Parking Garage presently subject to the City
Lease South, or the land thereunder, and such portion is operated in whole or in
part as a parking garage with spaces available on a non-exclusive basis to
tenants of the Property, Seller shall have the right to operate the Parking
Garage as a single unit, including that portion of the Parking Garage presently
subject to the City Lease North, without payment of consideration other than
Seller's obligation to sell the Property to Purchaser and all income to be
derived from the operation of the Parking Garage, whether during the term of the
Lease contemplated in Section 15 above or thereafter, shall be the property of
the operator of the Parking Garage. Seller reserves the right to enter into or
consent to any amendment, modification or termination of the City Lease North,
the Sublease, the City Lease South and/or the Operating Agreement without the
prior consent of Purchaser provided any such amendments, modifications or
terminations do not totally preclude tenants of the Property from the
non-exclusive use of the Parking Garage. Seller agrees to consult with Purchaser
on any such amendments, modifications or terminations provided however that
Purchaser's advice to Seller shall under no circumstances be binding on Seller.
The provisions hereof shall survive delivery of the deed.
17. Signage. Notwithstanding the sale of the Property from Seller to
Purchaser and at all times during the term of the lease identified in Section 15
above and all renewals and replacements thereof, Purchaser agrees that (i) the
Property shall remain
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known as MONY Plaza or such other name as Seller may designate, (ii) Seller
shall be permitted to retain and replace its existing signage on the Property,
and (iii) Seller shall be permitted to continue to do so as long as such signage
is in compliance with the local zoning ordinances. This section shall survive
delivery of the deed hereunder.
18. Nonforeign Certificate. On the date of Closing, Seller shall
deliver to Purchaser a certification that Seller is not a nonresident alien (a
foreign corporation, partnership, trust, or estate, as defined in the Internal
Revenue Code and Treasury Regulations promulgated thereunder.
19. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire
agreement between the parties in respect of the matters herein set forth,
supersedes all prior agreements between the parties may not be modified,
amended, or terminated except by a written agreement signed by both of the
parties hereto.
(b) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall for all purposes be deemed to be an
original, and all of which together shall constitute but one and the same
Agreement of the parties.
(c) Captions. The captions of the paragraphs and subparagraphs
of this Agreement are for convenience only and shall not be considered or
referred to in resolving questions of interpretation or construction.
(d) Attorney's Fees. Should either party hereto institute any
action or proceeding in any court to enforce any provision of this Agreement,
the prevailing party shall be entitled to receive from the losing party such
amount as the court may adjudge to be reasonable attorney's fees for the
services rendered the prevailing party in such action or proceeding.
(e) Applicable Law. This Agreement and the transaction
contemplated herein shall be governed by and construed under the laws of the
State of New York.
(f) Waiver. No waiver by Seller or Purchaser of any breach
respectively by Purchaser or Seller of any provisions of this Agreement shall be
deemed or construed to be a waiver of any subsequent or continuing breach of the
same or any other provision of this Agreement; nor shall any forebearance by
Purchaser or Seller from the exercise of a remedy for any such breach be deemed
or construed to be a waiver by Purchaser or Seller of any of their respective
rights or remedies with respect to such breach(es).
(g) Notification. Upon Purchaser's request, Seller shall
execute all reasonable notices to tenants, contractors, or other persons of the
change in ownership of the Property.
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43
(h) Meaning of Phrases. The use herein by Seller of the
phrases "to the best of Seller's knowledge," "Seller is not aware of any,"
"Seller has received no notice of," and phrases of similar import shall not mean
or imply that Seller has made any independent investigation into the matter as
to which such phrase is used or has any duty to make investigation. Seller's
obligation in such regard and the only duty it has hereunder is to review the
books and records pertaining to the Property in its possession.
(i) Representations and Warranties. Representations and
warranties made by the parties to this Agreement shall survive the Closing only
if and to the extent expressly so stated.
(j) Amendment and Assignment. This Agreement may not be
assigned by the parties hereto and may only be amended by a writing signed by
Seller and Purchaser. Purchaser, however, shall be permitted to assign this
Agreement without first obtaining Seller's prior written consent to an entity in
which Purchaser is a principal owner, including but not limited to a general
partner in a limited partnership; provided such assignment takes place by no
later than November 15, 1988. Purchaser or its assignee agrees to provide to
Seller by November 15, 1988 any required gains tax affidavit.
(k) Time of the Essence. Seller and Purchaser hereby agree
that time is of the essence with regard to the matters set forth herein.
15
44
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Sale and Purchase/Leaseback as of the day and year first written above.
SELLER:
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK,
a New York corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Witness: By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President for
Investment Management
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Attest:
/s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇
-------------------
By: /s/ Cliente K. Krubah
---------------------
Its: Assistant Secretary
PURCHASER:
CONTINENTAL REALTY OF NEW YORK,
INC.,
WITNESS: a New York corporation
Witness:
/s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------- -----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Treasurer
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Asst. Secretary
----------------------------------------
16
45
EXHIBIT B
Property Description
ALL THAT TRACT OR PARCEL OF LAND situate in the City of Syracuse,
County of Onondaga, and State of New York, and being a portion of Block #134 in
said City, and being more particularly described as follows:
BEGINNING at the intersection of the present easterly line of ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ with the present southerly line of Madison Street, said point of
intersection being the northwesterly corner of Block #134;
Thence South 89(degree) 47'10" East, along said southerly line of
Madison Street, a distance of 471.79 feet to the northeasterly corner of said
Block #134;
Thence South 0(degree) 06'00" West, along the present westerly line of
▇▇▇▇▇▇▇▇▇▇ Street, a distance of 180.51 feet to the northeasterly corner of a
permanent easement conveyed to the City of Syracuse by The Mutual Life Insurance
Company of New York by deed recorded in the Onondaga County Clerk's Office in
Liber of Deeds #2395, Page #140;
Thence North 89(degree) 49'40" West, along the northerly line of said
permanent easement and being parallel to the northerly line of ▇▇▇▇▇▇▇▇ Street,
a distance of 471.66 feet to its intersection with said easterly line of South
▇▇▇▇▇▇ Street;
Thence North 0(degree) 03'30" East, along said easterly line of said
South ▇▇▇▇▇▇ Street, a distance of 180.86 feet to the place of beginning.
Containing 85,233.26 square feet of land, or 1.956 acres of land, more or less.
The hereinabove described parcel of land is subject to any and all
easements and/or rights-of-way of record and to that certain lease with the City
of Syracuse, as tenant, which lease was recorded on June 13, 1969 in the Office
of the Clerk of the County of Onondaga, New York in Book of Deeds 2405, Page
734, for which The Mutual Life Insurance Company of New York reserves its rights
thereunder.
46
EXHIBIT C
Annual Lease Payments
Lease Year Monthly Installments Annual Payment
---------- -------------------- --------------
1 $487,500.00 $5,850,000
2 497,250.00 5,967,000
3 507,195.00 6,086,340
4 517,338.91 6,208,067
5 527,685.66 6,332,228
6 538,239.41 6,458,873
7 549,004.16 6,588,050
8 559,984.25 6,719,811
9 571,183.91 6,854,207
10 582,607.66 6,991,292
11 594,259.75 7,131,117
12 606,145.00 7,273,740
13 618,267.83 7,419,214
14 630,633.25 7,567,599
15 643,245.91 7,718,951
16 656,110.83 7,873,330
17 669,233.00 8,030,796
18 682,617.66 8,191,412
19 696,270.00 8,355,241
20 710,195.41 8,522,345
47
EXHIBIT D
List of Tenants
48
MONY TOWER 1-RENT ROLL
TENANT SPACE SQUARE FEET RENT PER YEAR
------ ----- ----------- -------------
Mutual of New York Subcellar-Wing 4,805 N/A
Mutual of New York Cellar-Wing 4,141 N/A
Chase Lincoln First Ground Floor and Basement (Ground 11,900 $ 71,000.00
Floor 8,900) (Basement 3,000)
U.S. Air Ground Floor, Basement, and 10,200 110,508.00
Mezzanine
(Basement = 8,000)
(Mezzanine = 4,000
Mutual of New York 2nd-5th Wing 81,448 N/A
(20,362 x 4)
Mutual of ▇▇▇ ▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇ (12,428 x 11) 136,708 N/A
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 13th and 14th Floors 24,856 447,408.00
▇▇▇▇▇ & McLennan, Inc. 15th Floor 5,943 106,974.00
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ 15th Floor 5,755 86,325.00
Storage 2,160.00
Vacant ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇.▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Inc. 16th Floor 6,827 122,886.00
Mutual of New York 16th Floor 5,601 ▇/▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇. ▇▇▇▇ ▇▇▇▇▇ 12,428 173,992.00
Ernst & Whinney 18th Floor 12,428 196,362.40
Ernst & Whinney 19th Floor 5,143 81,259.40
Guardian Life Insurance 19th Floor 2,355 36,570.22
Mutual of New York 19th Floor 4,930 N/A
TOTALS 336,023 $1,435,418.02
RENT PER ESCALATED RENT
TENANT RENT PER MONTH SQUARE FOOT EFFECTIVE DATE
------ -------------- ----------- --------------
Mutual of New York N/A $16.00
Mutual of New York N/A 16.00
Chase Lincoln First $5,916.67 5.97
U.S. Air 9,209.00 10.83
Mutual of New York N/A 16.00
Mutual of New York N/A 16.00
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 37,284.00 18.00 N/A
▇▇▇▇▇ & McLennan, Inc. 8,914.50 18.00 N/A
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ 7,193.75 15.00 N/A
180.00 Storage
Vacant 0.00 --
▇▇▇▇▇ Real Estate, Inc. 10,240.50 18.00 N/A
Mutual of New York N/A N/A
Price Waterhouse & Co. 14,499.33 14.00 1/l/90-12/31/94
Ernst & Whinney 16,363.58 15.80 N/A
Ernst & Whinney 6,771.62 15.80 11/l/89-10/31/94
Guardian Life Insurance 3,047.52 15.53 4/l/89-3/31/92
Mutual of New York N/A N/A N/A
1. U.S. Air will vacate premises 12/31/88.
2. ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc. will vacate premises 8/31/88.
3. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ will vacate premises 11/30/88.
1
49
MONY TOWER 1 - RENT ROLL (cont'd)
ESCALATED RENT TAX INSURANCE
TENANT ANNUAL AMOUNT LEASE EXPIRES OPTIONS ESCALATION ESCALATION
------ ------------- ------------- ------- ---------- ----------
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Chase Lincoln First 03/31/97 None 2.85% N/A
U.S. Air 12/31/81 None 3.39% 3.39%
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Mutual of New York N/A N/A N/A N/A
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ N/A None 04/30/90 N/A N/A
▇▇▇▇▇ & McLennan, Inc. N/A 12/31/88 None N/A N/A
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ N/A 11/30/88 (1) 5-Year Option N/A N/A
Exercise by 3/1/88
Vacant
▇▇▇▇▇ Real Estate, Inc. N/A 05/31/93 None N/A N/A
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Price Waterhouse & Co. $223,704.00 12/31/94 None ▇/▇ ▇/▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇/▇ 10/31/94 See Below See Below See Below
Ernst & Whinney 333,849.00 10/31/94 (1) 5-Year Option N/A N/A
(Max.)
Guardian Life Insurance Co. 40,035.00 03/31/921 None N/A N/A
Mutual of New York N/A N/A N/A N/A N/A
2
50
MONY TOWER 2 - RENT ROLL
RENT PER RENT PER
TENANT SPACE SQUARE FEET YEAR MONTH
------ ----- ----------- ---- -----
Mutual of New York Subcellar 5,500 N/A N/A
Mutual of New York Cellar 5,800 N/A N/A
Mutual of New York lst Floor 9,480 N/A N/A
Mutual of New York 2nd-5th Floor 49,712 N/A N/A
(12,428 x 4)
Mutual of New York 6th Floor 12,428 N/A N/A
Metropolitan Tops'n Temps 7th Floor 677 $ 8,462.50 $ 705.21
Mutual of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ 7,092 N/A N/A
Insurance Company of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ 4,659 74,544.00 6,212.00
Mutual of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ 8,927 N/A N/A
Mutual of New York 9th Floor 9,398 N/A N/A
American Home Assurance 9th Floor 534 8,010.00 667.50
Mutual Life Ins. Co. Agency 9th Floor 1,563 26,571.00 2,214.25
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ (12,428 x 9) 111,852 N/A N/A
Mutual Life Ins. Co. of New York - 17,606.3
Syracuse Agency 19th Floor 12,428 211,275.96 3
------- -----------
TOTALS 240,050 $328,863.46
RENT PER SQUARE ESCALATED RENT
TENANT FOOT EFFECTIVE DATE
------ ---- --------------
Mutual of New York 16.00 N/A
Mutual of New York 16.00 N/A
Mutual of New York 16.00 N/A
Mutual of New York 16.00 N/A
Mutual of New York 16.00 N/A
Metropolitan Tops'n Temps 12.50 1/l/88-12/31/88
Mutual of New York 16.00 N/A
Insurance Company of North America 16.00 N/A
Mutual of New York 16.00 N/A
Mutual of New York N/A N/A
American Home Assurance 15.00 N/A
Mutual Life Ins. Co. Agency 17.00 N/A
Mutual of New York 16.00 N/A
Mutual Life Ins. Co. of New York -
Syracuse Agency 17.00
1. Insurance Company of North America/CIGNA will vacate premises 3/31/89 or
sooner.
2. American Home Assurance Co. will vacate premises 8/31/88.
3
51
MONY TOWER 2 - RENT ROLL (cont'd)
ESCALATED RENT OPERATING EXPENSE
TENANT ANNUAL AMOUNT LEASE EXPIRES OPTIONS PRO RATA SHARE BASE YEAR ELECTRIC
-------------------------- -------------- ------------- -------- -------------- --------- ------------
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Mutual of New York N/A N/A N/A N/A N/A
Metropolitan Tops'n Temps $11,509.00 12/31/88 None .2% 1979 $ 39.49/month
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Insurance Company of North America N/A 03/31/89 None 1.9 1979 N/A
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
American Home Assurance Co. N/A 12/31/88 None .229% 1984 $ 31.50/month
Mutual Life Ins. Co. - Agency N/A 04/30/92 None .64% 1988 $104.20/month
Mutual of ▇▇▇ ▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
Mutual Life Ins. Co. of 04/30/92 None 5% 1984 N/A
New York - Syracuse Agency
4
