Exhibit 10.1
WTC-OL 92567.1 Lease No. WT-2887-B-84 (985)
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THE PORT AUTHORITY
OF NEW YORK AND NEW JERSEY
WORLD TRADE CENTER
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AGREEMENT OF LEASE
between
THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY
and
EURO BROKERS INC.
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WTC-OL 92567.4
THIS AGREEMENT, made as of the 10th day of September, 1992 by and
between THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY (hereinafter called the
"Port Authority"), a body corporate and politic, created by Compact between the
States of New Jersey and New York, with the consent of the Congress of the
United States of America, and having an office at One World Trade Center, in the
borough of Manhattan, City, County, and State of New York, and EURO BROKERS INC.
(hereinafter called the "Lessee"), a corporation organized and existing under
and by virtue of the laws of the State of New York having an office and place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
whose representative is ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
WITNESSETH That:
The Port Authority and the Lessee, for and in consideration of the
rents, covenants and agreements hereinafter contained, mutually covenant and
agree as follows:
Section 1. Letting
The Port Authority hereby lets to the Lessee and the Lessee hereby
hires and takes from the Port Authority, at the World Trade Center (sometimes
hereinafter referred to as the "Facility"), in the Borough of Manhattan, City,
County and State of New York, the space as shown in diagonal hatching on the
sketch annexed hereto, made a part hereof and marked Exhibit A, together with
the fixtures, improvements and other property of the Port Authority located or
to be located therein or thereon, the said space, fixtures, improvements and
other property of the Port Authority being hereinafter collectively referred to
as the "premises". The Port Authority and the Lessee hereby acknowledge that the
aforesaid premises constitute non-residential real property.
Section 2. Term
The term of the letting under this Agreement shall commence at 12:01
o'clock A.M. on September 11, 1992 and shall, unless sooner terminated, or
unless extended, expire at 11:59 o'clock P.M. on September 10, 2007.
Section 3. Rights of User by the Lessee
The Lessee shall use the premises for the following purposes only and
for no other purpose whatsoever: as a clerical and administrative office for the
Lessee's business
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as broker for banks in the purchase and sale of foreign exchange and in
arranging for the exchange (primarily international) of funds for deposit in
foreign and domestic banks, as well as international financing transactions
generally.
Section 4. Basic Rental
(a) The Lessee agrees to pay to the Port Authority a basic rental for
the premises as stated in Section 44.
(b) The basic rental shall be subject to adjustment during the letting
in accordance with the provisions of Schedule A attached to this Agreement and
hereby made a part hereof.
Section 5. Governmental Requirements
(a) The Lessee shall procure all licenses, certificates, permits or
other authorization from all governmental authorities having jurisdiction over
the operations of the Lessee at the premises or at the Facility which may be
necessary for the conduct of its operations.
(b) The Lessee shall pay all taxes, import duties, license,
certification, permit and examination fees, excises and other charges which may
be assessed, levied, exacted or imposed on its property, operations or occupancy
hereunder or any property whatsoever which may be received at the premises or on
the gross receipts or income therefrom and shall make all applications, reports
and returns required in connection therewith. If any bond or other undertaking
shall be required by any governmental authority in connection with any of the
operations of the Lessee or any property received or exhibited by the Lessee at
the premises, the Lessee shall furnish the same and pay all other expenses in
connection therewith.
(c) The Lessee shall promptly observe, comply with and execute the
provisions of any and all present and future governmental laws, rules and
regulations, requirements, orders and directions which may pertain or apply to
the operations of the Lessee on the premises or at the Facility or its occupancy
of the premises, and the Lessee shall, in accordance with and subject to the
provisions of the Section of this Agreement entitled "Construction by the
Lessee", make any and all improvements, alterations or repairs of the premises
that may be required at any time hereafter by any such present or future law,
rule, regulation, requirement, order or direction.
(d) The provisions of this Section are not to be construed as a
submission by the Port Authority to the application to itself of such
requirements, or any of them.
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Section 6. Rules and Regulations
(a) The Lessee covenants and agrees to observe and obey (and to compel
its officers, members, employees, agents, representatives, contractors,
customers, guests, invitees and those doing business with it to observe and
obey) the Rules and Regulations of the Port Authority (a copy of which is
attached hereto, hereby made a part hereof and marked "Exhibit R") for the
government of the conduct and operations of the Lessee, and such further
reasonable rules and regulations (including amendments and supplements thereto)
as may from time to time and throughout the letting be promulgated by the Port
Authority for reasons of safety, health or preservation of property, or for the
maintenance of the good and orderly appearance of the premises and the Facility
or for the safe or efficient operation of the Facility. The Port Authority
agrees that, except in cases of emergency, it will give notice to the Lessee of
every such further rule or regulation adopted by it at least five (5) days
before the Lessee shall be required to comply therewith.
(b) No statement or provision in the said Rules and Regulations shall
be deemed a representation or promise by the Port Authority that any services or
privileges described therein shall be or remain available or that such charges,
prices, rates or fees, if any, as are stated therein shall be or remain in
effect all of the same being subject to change by the Port Authority from time
to time whenever it deems a change advisable.
Section 7. Responsibilities of the Lessee
(a) The Lessee shall conduct its operations in an orderly and proper
manner and so as not to annoy, disturb or be offensive to others at the
Facility, and the Lessee shall control the conduct, demeanor and appearance of
its officers, members, employees, agents, representatives, contractors,
customers, guests, invitees and those doing business with it. Upon objection
from the Port Authority concerning the conduct, demeanor or appearance of any
such the Lessee shall immediately take all steps necessary to remove the cause
of the objection.
(b) The Lessee shall not commit any nuisance on the premises, or do or
permit to be done anything which may result in the creation or commission of a
nuisance on the premises, and the Lessee shall not cause or permit to be caused
or produced upon the premises, to permeate the same or to emanate therefrom, any
unusual, noxious or objectionable smokes, gases, vapors, odors or objectionable
noises.
(c) The Lessee shall not keep, maintain, place or install in the
premises any fixtures or equipment the use of which is not consistent with and
required for the purposes of the letting as set forth in the Section of this
Agreement entitled "Rights of User by the Lessee" and the Lessee shall not use
or connect any equipment or engage in any activity or operation in the premises
which will cause or tend to cause an overloading
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of the capacity of any existing or future utility, mechanical, electrical,
communication or other systems, or portions thereof, serving the premises, nor
shall the Lessee do or permit to be done anything which may interfere with the
effectiveness or accessibility of existing and future utility, mechanical,
electrical, communication or other systems, or portions thereof, serving the
premises, nor shall the Lessee do or permit to be done anything which may
interfere with the effectiveness or accessibility of existing and future
utility, mechanical, electrical, communication or other systems or portions
thereof on the premises or elsewhere at the Facility.
(d) The Lessee shall not overload any floor, roadway, passageway,
pavement or other surface or any wall, partition, column or other supporting
member, or any elevator or other conveyance, in the premises or at the Facility
and without limiting any other provision of this Agreement, the Lessee shall
repair, replace or rebuild any such damaged by overloading.
(e) The Lessee shall not install, maintain or operate or permit the
installation, maintenance or operation on the premises of any vending machine or
service designed to dispense or sell food, beverages, tobacco products or
merchandise of any kind, whether or not included in the above categories, or any
restaurant, cafeteria, kitchen, stand or other establishment for the
preparation, dispensing or sale of food, beverages, tobacco or tobacco products,
or merchandise of any kind or any equipment or device for the furnishing to the
public of a service of any kind, including without limitation thereto any
telephone pay-stations.
(f) The Lessee shall not use or make any reference, by advertising or
otherwise, to the names "World Trade Center" (except to designate the Lessee's
business address and then only in a conventional manner and without emphasis or
display), "Port of New York Authority", "Port Authority" or any simulation or
abbreviation of any such names, or any emblem, picture or reproduction of the
World Trade Center, for any purpose whatsoever. Furthermore, the Lessee shall
not make use of or originate any material intended for publication or visual or
oral presentation which may tend to impair the reputation of the World Trade
Center or its desirability. Upon notice from the Port Authority the Lessee shall
immediately discontinue any such use or reference.
(g) The Lessee shall not do or permit to be done any act or thing upon
the premises or at the Facility which will invalidate or conflict with any
insurance policies covering the premises or any part thereof, or the Facility,
or any part thereof, at which, in the opinion of the Port Authority, may
constitute an extra-hazardous condition, so as to increase the risks normally
attendant upon the operations contemplated by the Section of this Agreement
entitled "Rights of User by the Lessee", and the Lessee shall promptly observe,
comply with and execute the provisions of any and all present and future rules
and regulations, requirements, orders and directions and the National Fire
Protection Association and the New York Fire Insurance Rating Organization, and
of any other
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board or organization exercising or which may exercise similar functions, which
may pertain or apply to the operations of the Lessee on the premises, and the
Lessee shall, subject to and in accordance with the provisions of the Section of
this Agreement entitled "Construction by the Lessee", make any and all
improvements, alterations or repairs of the premises that may be required at any
time hereafter by any such present or future rule, regulation, requirement,
order or direction, and if by reason of any failure on the part of the Lessee to
comply with the provisions of this Agreement any insurance rate on the premises
of any part thereof, or on the Facility or any part thereof, shall at any time
be higher than it otherwise would be, then the Lessee shall pay to the Port
Authority, as an item of additional rental, that part of all insurance premiums
paid by the Port Authority which shall have been charged because of such
violation or failure by the Lessee, but no such payment shall relieve the Lessee
of its other obligations under this paragraph.
(h) The Lessee recognizes that the Port Authority has undertaken the
planning, construction and operation of the Facility as a facility of commerce
pursuant to concurrent legislation of the State of New York, Chapter 209, Laws
of New York, 1962 and the State of New Jersey, ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇. The purpose, character and scope of the Lessee's occupancy, operation and
usage of the premises as described in Section 3 of this Agreement are of primary
importance and inducement to the Port Authority in entering into this Agreement
of lease with the Lessee. The Lessee has represented to the Port Authority that
all of its occupancy, operation and usage, thoughout the term of the letting
hereunder, will be in strict accordance with and subject to the provisions and
requirements of Section 3 of this Agreement and the Port Authority has relied on
such representations in entering into this Agreement. Without affecting the
Lessee's liability for any breach of this representation and its obligations
hereunder, in the event that the Lessee has not complied with all the
requirements of this Section and of Section 3 of this Agreement, the Port
Authority may by five (5) days' notice terminate this Agreement and the letting
hereunder and the same shall be and operate as a conditional limitation and have
the same effect as if it were specifically included as a ground for termination
under subdivision (a) of Section 20 of this Agreement.
Section 8. Maintenance and Repair
(a) Except to the extent of such items of cleaning service as may be
supplied by the Port Authority as stated in Section 42, the Lessee shall at all
times keep the premises in a clean and orderly condition and appearance,
together with all fixtures, equipment and personal property of the Lessee
located in or on the premises, including without limitation thereto the interior
surface of windows and both sides of all entrance doors.
(b) The Lessee shall repair, replace, rebuild and paint all or any part
of the premises or of the Facility which may be damaged or destroyed by the acts
or omissions of the Lessee, its officers, members, employees, agents,
representatives, contractors,
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customers, guests, invitees or other persons who are doing business with the
Lessee or who are on or at the premises or the Facility with the consent of the
Lessee.
(c) The Lessee shall take good care of the premises, including therein,
without limitation thereto, walls, partitions, floors, ceilings, doors and
columns, and all parts thereof, and all equipment and fixtures, and shall do all
preventive maintenance and make all necessary non-structural repairs,
replacements, rebuilding and painting necessary to keep the premises in the
condition existing at the commencement date of the letting and to keep any
improvements, additions and fixtures made or installed during the term of the
letting in the condition they were in when made or installed except for
reasonable wear which does not adversely affect the watertight condition or
structural integrity of the building or adversely affect the efficient or proper
utilization or the appearance of any part of the premises.
(d) In the event the Lessee fails to commence so to make or do any
repair, replacements, rebuilding or painting required by this Agreement within a
period of ten (10) days after notice from the Port Authority so to do, or fails
diligently to continue to completion the repair, replacement, rebuilding or
painting of all of the premises required to be repaired, replaced, rebuilt or
painted by the Lessee under the terms of this Agreement, the Port which may, at
its option, and in addition to any other remedies which may be available to it,
repair, replace, rebuild or paint all or any part of the premises included in
the said notice, the Port Authority's cost thereof to be paid by the Lessee on
demand. This option or the exercise thereof shall not be deemed to create or
imply any obligation or duty to the Lessee or others.
(e) The obligation of the Lessee as set forth in paragraphs (b) and (c)
of this Section, in the event of damage or destruction covered by any contract
of insurance under which the Port Authority is the insured, is hereby released
to the extent that the loss is recouped by actual payment to the Port Authority
of the proceeds of such insurance; provided, however, that if at any time
because of this release the insurance carrier of any policy covering the
premises or any part thereof shall increase the premiums, otherwise payable for
fire, extended coverage or rental coverage applicable to the premises, the
Lessees shall pay to the Port Authority an amount equivalent to such increase or
increases on demand; and provided, further, that if at any time this release
shall invalidate any such policy of insurance or reduce, limit or void the
rights of the Port Authority thereunder, or if because of this release, any such
insurance carrier shall cancel any such policy or shall refuse to issue or renew
the same or shall refuse to issue a policy with an endorsement thereof under
which this release is permitted without prejudice to the interest of the insured
or shall cancel such endorsement or refuse to renew the same or shall take any
other action to alter, decrease or diminish the benefits of the Port Authority
under the policy, then the release shall be void and of no effect. Nothing
herein shall be construed to imply an obligation on the Port Authority to carry
any such insurance policy or to obtain or keep in force any such endorsement.
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Section 9. Casualty
(a) In the event that, as a result of a casualty insured against by the
Port Authority under the New York standard form of fire insurance policy carried
by it on the premises, the premises are damaged without the fault of the Lessee,
its officers, members, employees, customers, guests, invitees or other persons
who are doing business with the Lessee or who are on the premises with the
Lessee's consent, so as to render the premises untenantable in whole or part,
then
(1) if the Port Authority finds that the necessary repairs or
rebuilding can be completed within ninety (90) days after the
occurrence of the damage, the Port Authority shall repair or rebuild
with due diligence, and the rental hereunder shall be abated, as
hereinafter provided in the Section of this Agreement entitled
"Abatement of Rental", only for the period from the occurrence of the
damage to the completion of the repairs or rebuilding, whether or not
the work of repair or rebuilding is actually completed within the said
ninety (90) days; or
(2) if the Port Authority finds that such repairs or
rebuilding cannot be completed within ninety (90) days after the
occurrence of the damage, or if the Port Authority concludes that other
than the premises also require rebuilding, then the Port Authority
shall have options: (i) to proceed with due diligence to repair or to
rebuild the premises as necessary; or (ii) to terminate the letting as
to the damaged portion of the premises only, and the rental hereunder
shall be abated as provided in the Section of this Agreement entitled
"Abatement of Rental", from and after the occurrence of the damage, or
(iii) to terminate the lettering as to the entire premises; and in the
case of (i) and (iii), the rental hereunder shall be abated, as
provided in the Section of this Agreement entitled "Abatement of
Rental", either, as the case may require, for the period from the
occurrence of the damage to the completion of repairs and rebuilding of
the premises or for the period from the occurrence of the damage to the
effective date of termination.
(b) The parties do hereby stipulate that neither the provisions of
Section 227 of the Real Property Law of the State of New York nor those of any
other similar statute shall extend or apply to this Agreement.
(c) The Lessee shall give the Port Authority immediate notice in case
of any fire, accident or casualty in the premises or elsewhere in the Facility
if the occurrence elsewhere in the Facility is known to and involves the Lessee,
its officers, members, employees, agents, representatives, contractors, or is
known to any of them and involves customers, guests or invitees of the Lessee.
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(d) In the event of a partial or total destruction of the premises, the
Lessee shall immediately remove any and all of its property and all debris from
the premises or the portion thereto destroyed and if the Lessee does not
promptly so remove, the Port Authority may remove the Lessee's property to a
public warehouse for deposit or retain the same in its own possession and sell
the same at public auction, the proceeds of which shall be applied first to the
expenses of removal, storage and sale, second to any sums owed by the Lessee to
the Port Authority, with any balance remaining to be paid to the Lessee; if the
expenses of such removal, storage and sale shall exceed the proceeds of sale,
the Lessee shall pay such excess to the Port Authority upon demand.
Section 10. Indemnity
(a) The Lessee shall indemnify and hold harmless the Port Authority,
its Commissioners, officers, agents and employees from (and shall reimburse the
Port Authority for the Port Authority's costs or expenses including legal
expenses incurred in connection with the defense of) all claims and demands of
third persons including but not limited to those for death, for personal
injuries, or for property damages, arising out of any default of the Lessee in
performing or observing any term or provision of this Agreement, or out of the
use or occupancy of the premises by the Lessee or by others with its consent, or
out of any of the acts or omissions of the Lessee, its officers, members,
employees, agents, representatives, contractors, customers, guests, invitees and
other persons who are doing business with the Lessee or who are at the premises
with the Lessee's consent where such acts or omissions are on the premises, or
arising out of any acts or omissions of the Lessee, its officers, members,
employees, agents and representatives where such actions or omissions are
elsewhere.
(b) If so directed, the Lessee shall at its own expense defend any suit
based upon any such claim or demand (even if such suit, claim or demand is
groundless, false or fraudulent), and in handling such it shall not, without
obtaining express advance permission from the General Counsel of the Port
Authority, raise any defense involving in any way the jurisdiction of the
tribunal over the person of the Port Authority, the immunity of the Port
Authority, its Commissioners, officers, agents or employees, the governmental
nature of the Port Authority or the provision of any statutes respecting suits
against the Port Authority.
Section 11. Ingress and Egress
The Lessee solely for itself, its officers, employees and such business
invitees as are at the premises in connection with the transaction of the
regular business of the Lessee, shall have the right of ingress and egress
between the premises and the City streets outside the Facility. Such right shall
be exercised by means of such corridors, lobbies, public areas and pedestrian or
vehicular ways, and by means of such elevators, escalators or other facilities
for movement of persons or property, to be used subject to all the provisions of
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this Agreement and in common with others having rights of passage and movement
within the Facility, as may from time to time be designated by the Port
Authority for the use of the public. The use of any such facility, way or other
area shall be subject to the rules and regulations of the Port Authority which
are now in effect or which may hereafter be promulgated for the safe and
efficient operation of the Facility. The Port Authority may, at any time,
temporarily or permanently close, move, change or limit the use of, or consent
to or request the closing, moving, changing or limitation of the use of, any
such facility, way or any other area at or near the Facility presently or
hereafter used as such, so long as a means of ingress and egress as provided
above remains available to the Lessee. The Lessee hereby releases and discharges
the Port Authority, and all municipalities and other governmental authorities,
and their respective successors and assigns, of and from any and all claims,
demands, or causes of action which the Lessee may now or at any time hereafter
have against any of the foregoing, arising or alleged to arise out of the
closing, changing or limitation of the use of any facility, way or other area,
whether within or outside the Facility. The Lessee shall not do or permit
anything to be done which will interfere with the free access and passage of
others to space adjacent to the premises or in any areas, streets, ways,
facilities and walks near the premises.
Section 12. Construction by the Lessee
The Lessee shall not erect any structures, make any modifications,
alternations, additions, improvements, repairs or replacements or do any
construction work on or to the premises, or install any fixtures in or on the
premises (other than trade fixtures, removable without injury to the premises)
without the prior consent of the Port Authority, and in the event any
construction, improvement, alternation, modification, addition, repair or
replacement is made or done with or without such consent and unless the consent
of the Port Authority shall expressly provide otherwise, the same shall
immediately become the property of the Port Authority and the Lessee shall have
no right to change or remove the same either during the term or at the
expiration thereof. Notwithstanding the foregoing, immediately upon notice from
the Port Authority given at any time during the letting, the Lessee shall remove
or change any of the same made or done by it without the Port Authority's
consent, and in the case of any of the same made or done with the Port
Authority's consent, the Lessee if so required by notice from the Port
Authority, shall remove or change the same immediately upon the expiration or
termination of the letting, or immediately upon receipt of such notice as may be
given within sixty (60) days after such expiration or termination. With respect
to any modifications, additions, alterations, improvements, installations or
construction made or done by the Port Authority at the request of the Lessee
either prior to or during the term of the letting, the Lessee shall have the
same obligations as provided above with respect to that made or done by the
Lessee with the Port Authority's consent.
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Section 13. Signs
Except with the prior consent of the Port Authority, the Lessee shall
not erect, maintain or display any signs, advertising, posters or similar
devices at or on the exterior parts of the premises or in the premises so as to
be visible through the windows, glass walls or exterior doors thereof. Upon the
expiration or termination of the letting, the Lessee shall remove, obliterate or
paint out, as the Port Authority may direct, any and all signs and advertising,
posters or similar devices, and in connection therewith shall restore the area
affected to the same condition as at the commencement of the letting.
Section 14. Injury and Damage to Person or Property
The Port Authority shall not be liable to the Lessee or others for any
personal injury, death or property damage from falling material, water, rain,
hail, snow, gas, steam, dampness, explosion, smoke, radiation, and/or
electricity, whether the same may leak into or fall, issue, or flow from any
part of the premises or of the Facility, including without limitation thereto
any utility, mechanical, electrical, communication or other systems therein, or
from any other place or quarter unless said damage, injury or death shall be due
to the negligent acts of the Port Authority, its employees or agents.
Section 15. Additional Rent and Charges
(a) If the Lessee shall fail or refuse to perform any of its
obligations under this Agreement, the Port Authority, in addition to all other
remedies available to it, shall have the right to perform any of the same and
the Lessee shall pay the Port Authority's cost thereof on demand. If the Port
Authority has paid any sum or sums or has incurred any obligations, expense or
cost which the Lessee has agreed to pay or reimburse the Port Authority for, or
if the Port Authority is required or elects to pay any sum or sums or incurs any
obligations, expense or cost by reason of the failure, neglect or refusal of the
Lessee to perform or fulfill any one or more of the conditions, covenants or
agreements contained in this Agreement, or as a result of an act or omission of
the Lessee contrary to the said conditions, covenants and agreements, including
any legal expense or cost in connection with any actions or proceeding brought
by the Port Authority against the Lessee or by third parties against the Port
Authority, the Lessee agrees to pay the sum or sums so paid or the expense and
the Port Authority's cost so incurred, including all interest costs, damages and
penalties, and the same may be added to any installment of rent thereafter due
hereunder and each and every part of the same shall be and become additional
rent, recoverable by the Port Authority in the same manner and with like
remedies as if it were originally a part of the basic rental as set forth in the
Section of this Agreement entitled "Basic Rental".
(b) "Cost" or "costs" of the Port Authority in this Agreement shall
mean and include (1) payroll costs including but not limited to contributions to
the retirement
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system, or the cost of participation in other pension plans or systems,
insurance costs, sick leave pay, holiday, vacation, authorized absence pay or
other fringe benefits; (2) cost of materials, supplies and equipment used
(including rental thereof); (3) payments to contractors; (4) any other direct
costs; and (5) 30% of the foregoing.
Section 16. Rights of Entry Reserved
(a) The Port Authority, by its officers, employees, agents,
representatives and contractors shall have the right at all reasonable times to
enter upon the premises for the purpose of inspecting the same, for observing
the performance by the Lessee of its obligations under this Agreement, and for
the doing of any act or thing which the Port Authority may be obligated or have
the right to do under this Agreement or otherwise.
(b) Without limiting the generality of the foregoing, the Port
Authority, by its officers, employees, representatives and contractors, shall
have the right, for the benefit of the Lessee or for the benefit of others at
the Facility, to maintain initially existing and future utility, mechanical,
electrical, communication and other systems or portions thereof on the premises,
and to enter upon the premises at all reasonable times to make such repairs,
alternations and replacements as may, in the opinion of the Port Authority, be
deemed necessary or advisable and, from time to time, to construct or install
over, in, under or through the premises new lines, pipes, mains, wires,
conduits, equipment and other such; and to use the premises for access to other
portions of the Facility not otherwise conveniently accessible; provided,
however, that such repair, alteration, replacement, construction or access shall
not unreasonably interfere with the use of the premises by the Lessee.
(c) In the event that any property of the Lessee shall obstruct the
access of the Port Authority, its employees, agents or contractors to any of the
existing or future utility, mechanical, electrical, communication and other
systems and thus shall interfere with the inspection, maintenance, repair or
modification of any such system, the Lessee shall move such property as
requested by the Port Authority, in order that the access may be had to the
system or part thereof for its inspection, maintenance, repair or modification.
(d) Nothing in this Section shall or shall be construed to impose upon
the Port Authority any obligations so to construct or maintain or to make
repairs, replacements, alternations or additions, or shall create any liability
for any failure so to do. The Lessee is and shall be in exclusive control and
possession of the premises and the Port Authority shall not in any event be
liable for any injury or damage to any property or to any person happening on or
about the premises nor for any injury or damage to the premises nor to any
property of the Lessee or of any other person located therein or thereon (other
than those occasioned by the negligent acts of the Port Authority).
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(e) At any time and from time to time during normal business hours
within the six (6) months next preceding the expiration of the letting, the Port
Authority, by its agents and employees, whether or not accompanied by
prospective lessees, occupiers or users of the premises, shall have the right to
enter thereon for the purpose of exhibiting and viewing all parts of the same.
(f) If, during the last month of the letting, the Lessee shall have
removed all or substantially all of the Lessee's property from the premises, the
Port Authority may immediately enter and alter, renovate and redecorate the
premises and change locks on doors in the premises.
(g) The exercise of any or all of the foregoing rights by the Port
Authority or others shall not be or be construed to be an eviction of the Lessee
nor be made on the grounds for any abatement of rental or any claim or demand
for damages, consequential or otherwise.
Section 17. Condemnation
(a) In any action or proceeding instituted by any governmental or other
authorized agency or agencies for the taking for a public use of any interest in
all or any part of the premises, or in case of any deed, lease or other
conveyance in lieu thereof (all of which are in this Section referred to as
"taking or conveyance") the Lessee shall not be entitled to assert any claim to
any compensation, award or part thereof made or to be made therein or therefor
or any claim to any consideration or rental or any part thereof paid therefor,
or to institute any action or proceeding or to assert any claim against such
agency or agencies or against the Port Authority for or on account of any such
taking or conveyance, except for the possible claim to an award for trade
fixtures owned and installed by the Lessee, it being understood and agreed
between the Port Authority and the Lessee that the Port Authority shall be
entitled to all the compensation or awards made or to be made or paid and all
such consideration or rentals, free of any claim or right of the Lessee. No
taking by or delivery to any governmental authority under this paragraph (a)
shall be or be construed to be an eviction of the Lessee or be the basis for any
claim by the Lessee for damages, consequential or otherwise.
(b) In the event of a taking or conveyance of the entire premises by
any governmental or other authorized agency or agencies, then the letter under
this Agreement shall, as of the date possession is taken from the Port Authority
by such agency or agencies, cease and determine in the same manner and with the
same effect as if the term of the letting had on that date expired.
(c) In the event of a taking or conveyance by any governmental or other
authorized agency or agencies of a part of the premises then the letting as to
such part only shall, as of the date possession thereof is taken from the Port
Authority by such
13
agency or agencies, cease and determine, and the rental thereafter to be paid by
the Lessee to the Port Authority shall be abated as provided in the Section of
this Agreement entitled "Abatement of Rental" from and after the date of such
taking or conveyance.
(d) In the event that the taking or conveyance or the delivery by the
Lessee or taking by the Port Authority pursuant to Section 41 covers fifty per
cent (50%) or more of the total usable area of the premises, then the Lessee and
the Port Authority shall each have an option exercisable by notice given within
ten (10) days after such taking or conveyance, to terminate the letting
hereunder, as of the date of such taking, and such termination shall be
effective as if the date of such taking, and such termination shall be effective
as if the date of such taking were the original date of expiration hereof.
Section 18. Abatement of Rental
(a) In the event that the Lessee shall at any time become entitled to
an abatement of rent, the basic rental set forth in the Section of the Agreement
entitled "Basic Rental" shall be abated for the period the abatement is in
effect by the same percentage that the area of the part of the premises the use
of which is denied to the Lessee is of the total area of the premises.
(b) For the purposes of this Section, the number of square feet
contained in the premises or parts thereof shall be computed as follows: By
measuring from the inside surface of outer building walls to the surface of the
public area side, or of the non-exclusive area side, as the case may require, of
all partitions separating the space measured from adjoining areas designed for
the use of the public or for use by the Lessee in common with others, and to the
center of partitions separating the space measured form adjoining space
exclusively used by others; no deduction will be made for columns, partitions,
pilasters or projections necessary to the building and contained within the
space measured. Permanent partitions enclosing elevator shafts, stairs,
fire-towers, vents, pipe-shafts, meter-closets, flues, stacks and any vertical
shafts have the same relation to the space measured as do outer building walls.
(c) In the event that during the term of the letting under this
Agreement the Lessee shall be partially evicted and shall remain in possession
of the premises or the balance thereof, the Lessee agrees that notwithstanding
it might have the right to suspend payment of the rent in the absence of this
provision, it agrees to pay and will pay at the times and in the manner herein
provided, the full rent reserved less only an abatement thereof computed in
accordance with the above.
Section 19. Assignment and Sublease
(a) The Lessee shall not assign, sell, convey, transfer, mortgage, or
pledge this Agreement or any part thereof, or any rights created thereby or the
letting, or any part
14
thereof, without the prior written consent of the Port Authority.
(b) The Lessee shall not sublet the premises, or any part thereof,
without the prior written consent of the Port Authority.
(c) If the Lessee assigns, sells, conveys, transfers, mortgages,
pledges, or sublets in violation of paragraphs (a) or (b) of this Section or if
the premises are occupied by anybody other than the Lessee, the Port Authority
may collect rent from any assignee, sublessee or anyone who claims a right to
this Agreement or letting or who occupies the premises, and shall apply the net
amount collected to the basic rental herein reserved; and no such collection
shall be deemed a waiver by the Port Authority of the covenants contained in
paragraphs (a) and (b) of this Section nor an acceptance by the Port Authority
of any such assignee, sublessee, claimant or occupant as Lessee, nor a release
of the Lessee by the Port Authority from the further performance by the Lessee
of the covenants contained herein. The granting of consent by the Port Authority
to any assignment or subletting shall not be deemed to operate as a waiver of
the requirement for obtaining the express prior written consent of the Port
Authority to any other or subsequent assignment or subletting.
(d) The Lessee shall not use, or permit any person to use, the premises
or any portion thereof, except for the purposes set forth in the Section of this
Agreement entitled "Rights of User by the Lessee."
Section 20. Termination
(a) If any one or more of the following events shall occur, that is to
say:
(1) The Lessee shall become insolvent, or shall take the benefit
of any present or future insolvency statute, or shall make a general
assignment for the benefit of creditors, or file a voluntary petition
in bankruptcy or a petition or answer seeking an arrangement or its
reorganization or the readjustment of its indebtedness under the
federal bankruptcy laws or under any other law or statute of the
United States or of any State thereof, or consent to the appointment
of a receiver, trustee, or liquidator of all or substantially all of
its property; or
(2) By order or decree of a court the Lessee shall be adjudged
bankrupt or an order shall be made approving a petition filed by any
of the creditors or, if the Lessee is a corporation, by any of the
stockholders of the Lessee, seeking its reorganization or the
readjustment of its indebtedness under the federal bankruptcy laws or
under any law or statute of the United States or of any State thereof;
or
15
(3) A petition under any part of the federal bankruptcy laws or
an action under any present or future insolvency law or statute shall
be filed against the Lessee and shall not be dismissed within thirty
(30) days after the filing thereof; or
(4) The letting hereunder or the interest or estate of the Lessee
under this Agreement shall be transferred to, pass to or devolve upon,
by operation of law or otherwise, any other person, firm or
corporation; or
(5) The Lessee, if a corporation, shall, without the prior
consent of the Port Authority, become a possessor or merged
corporation in a merger, a constituent corporation in a consolidation,
or a corporation in dissolution; or
(6) The Lessee is a partnership, and the said partnership shall
be dissolved as the result of any act or omission of its partners or
any of them, or by operation of law or the order or decree of any
court having jurisdiction, or for any other reason whatsoever; or
(7) By or pursuant to, or under authority of any legislative act,
resolution or rule, or any order or decree of any court or
governmental board, agency or officer, a receiver, trustee, or
liquidator shall take possession or control of all or substantially
all the property of the Lessee, or any execution or attachment shall
be issued against the Lessee or any of its property, whereupon
possession of the premises shall be taken by someone other than the
Lessee, and any such possession or control shall continue in effect
for a period of fifteen (15) days; or
(8) Any lien is filed against the premises because of any act or
omission of the Lessee and is not removed within ten (10) days; or
(9) The Lessee shall voluntarily abandon, desert, vacate or
discontinue its operations in the premises, or, after exhausting or
abandoning any right of further appeal, the Lessee shall be prevented
for a period of thirty (30) days by action of any governmental agency
from conducting its operations on the premises, regardless of the
fault of the Lessee; or the Lessee shall fail to take occupancy and
commence operations within fifteen (15) days after the commencement
date; or
(10) The Lessee shall fail duly and punctually to pay the rentals
or to make any other payment required hereunder when due to the Port
Authority; or
(11) The Lessee shall fail to keep, perform and observe each and
every other promise, covenant and agreement set forth in this
Agreement on its part to be kept, performed, or observed, within ten
(10) days after receipt of notice of
16
default thereunder from the Port Authority (except where fulfillment
of its obligation requires activity over a period of time, and the
Lessee shall have commenced to perform whatever may be required for
fulfillment within ten (10) days after receipt of notice and continues
such performance without interruption except for causes beyond its
control); or
(12) If this Agreement shall require a guarantor of one or more
of the Lessee's obligations under this Agreement and any of the events
described in subparagraphs (1), (2), (3) or (7) above shall occur to
or with respect to the guarantor (whether or not they shall also occur
to or with respect to the Lessee);
then upon the occurrence of any such event or at any time thereafter during the
continuance thereof, the Port Authority may by five (5) days' notice terminate
the letting, such termination to be effective upon the date specified in such
notice. Such right of termination and the exercise thereof shall be and operate
as a conditional limitation.
(b) If any of the events enumerated in paragraph (a) of this Section
shall occur prior to the commencement of the letting, the Lessee shall not be
entitled to enter into possession of the premises and the Port Authority upon
the occurrence of any such event or at any time thereafter during the
continuance thereof by twenty-four (24) hours' notice may cancel the interest of
the Lessee under this Agreement, such cancellation to be effective upon the date
specified in such notice.
(c) No acceptance by the Port Authority of rentals, fees, charges or
other payments in whole or in part for any period or periods after a default in
any of the terms, covenants and conditions to be performed, kept or observed by
the Lessee shall be deemed a waiver of any right on the part of the Port
Authority to terminate the letting.
(d) No waiver by the Port Authority of any default on the part of the
Lessee in performance of any of the terms, covenants or conditions hereof to be
performed, kept or observed by the Lessee shall be or be construed to be a
waiver by the Port Authority of any other or subsequent default in performance
of any of the said terms, covenants and conditions.
(e) The rights of termination described above shall be in addition to
any other rights of termination provided in this Agreement and in addition to
any rights and remedies that the Port Authority would have at law or in equity
consequent upon any breach of this Agreement by the Lessee, and the exercise by
the Port Authority of any right of termination shall be without prejudice to any
other such rights and remedies.
(f) The Lessee shall not interpose any counterclaims in any summary
proceeding or action for non-payment of rental which may be brought by the Port
Authority.
17
Section 21. Right of Re-entry
The Port Authority shall, as an additional remedy upon the giving of a
notice of termination as provided in the Section of this Agreement entitled
"Termination", have the right to re-enter the premises and every part thereof
upon the effective date of termination without further notice of any kind, and
may regain and resume possession either with or without the institution of
summary or any other legal proceedings or otherwise. Such re-entry, or regaining
or resumption of possession, however, shall not in any manner affect, alter or
diminish any of the obligations of the Lessee under this Agreement, and shall in
no event constitute an acceptance of surrender.
Section 22. Survival of the Obligations of the Lessee
(a) In the event that the letting shall have been terminated in
accordance with a notice of termination as provided in the Section of this
Agreement entitled "Termination", or the interest of the Lessee canceled
pursuant thereto, or in the event that the Port Authority has re-entered,
regained or resumed possession of the premises in accordance with the provisions
of the Section of this Agreement entitled "Right of Re-entry", all the
obligations of the Lessee under this Agreement shall survive such termination or
cancellation, re-entry, regaining or resumption of possession and shall remain
in full force and effect for the full term of this Agreement, and the amount or
amounts of damages or deficiency shall become due and payable, as more
specifically stated in paragraph (b) below, to the Port Authority to the same
extent, at the same time or times and in the same manner as if no termination,
cancellation, re-entry, regaining or resumption of possession had taken place.
(b) Immediately upon any termination or cancellation pursuant to the
Section of this Agreement entitled "Termination", or upon any re-entry,
regaining or resumption of possession in accordance with the Section of this
Agreement entitled "Right of Re-entry", there shall become due and payable by
the Lessee to the Port Authority, in addition to rental accrued prior to the
effective date of termination, without notice or demand and as damages, the sum
of the following:
(1) subject to the provisions of paragraph (c) below, an amount
equal to the then present value of all basic rental provided for in
this Agreement for the entire term, following the effective date of
termination, as originally fixed in the Section of this Agreement
entitled "Term" less the amount thereof which may have been actually
paid by the Lessee;
(2) the amount of all other unfulfilled monetary obligations of
the Lessee under this Agreement, including without limitation thereto,
all sums constituting additional rental hereunder and the cost to the
expenses of the Port Authority for fulfilling all other obligations of
the Lessee which would have
18
accrued or mature during the balance of the term or on the expiration
date originally fixed or within a stated time after expiration or
termination; and
(3) an amount equal to the cost to and the expenses of the Port
Authority in connection with the termination, cancellation, regaining
possession and restoring and reletting the premises, the Port
Authority's legal expenses and cost, and the Port Authority's costs
and expenses for the care and maintenance of the premises during any
period of vacancy, and any brokerage fees and commissions in
connection with any reletting.
(c) The Port Authority may at any time bring an action to recover all
the damages as set forth above not previously recovered in separate actions, or
it may bring separate actions to recover the items of damages set forth in
subparagraphs (2) and (3) of paragraph (b) above and separate actions
periodically to recover from time to time only such portion of the damages set
forth in subparagraph (1) of paragraph (b) above as would have accrued as rental
up to the time of the action if there had been no termination or cancellation.
In any such action the Lessee shall be allowed a credit against its survived
damages obligations equal to the amounts which the Port Authority shall have
actually received from any tenant, licensee, permittee or other occupier of the
premises or a part thereof during the period for which damages are sought, and
if recovery is sought for a period subsequent to the date of suit a credit equal
to the market rental value of the premises during such period (discounted to
reflect the then present value thereof). If at the time of such action the Port
Authority has relet the premises the rental for the premises obtained through
such reletting shall be deemed to be the market rental value of the premises or
be deemed to be the basis of computing such market rental value if less than the
entire premises were relet. In no event shall any credit be allowed to the
Lessee against its damages for any period exceed the then present value of the
basic rental which would have been payable under this Agreement during such
period if a termination or cancellation had not taken place. In determining
present value of rental an interest rate of 4% per annum shall be used.
Section 23. Reletting by the Port Authority
The Port Authority, upon termination or cancellation pursuant to the
Section of this Agreement entitled "Termination", or upon any re-entry,
regaining or resumption of possession pursuant to the Section of this Agreement
entitled "Right of Re-entry", may occupy the premises or may relet the premises,
and shall have the right to permit any person, firm or corporation to enter upon
the premises and use the same. The Port Authority may grant free rental or other
concessions and such reletting may be of part only of the premises or of the
premises or a part thereof together with other space, and for a period of time
the same as or different from the balance of the term hereunder remaining, and
on terms and conditions and for purposes the same as or different from those set
forth in this Agreement. The Port Authority shall also, upon termination or
19
cancellation pursuant to the Section of this Agreement entitled "Termination",
or upon its re-entry, regaining or resumption of possession pursuant to the
Section of this Agreement entitled "Right of Re-entry", have the right to repair
or to make structural or other changes in the premises, including changes which
alter the character of the premises and the suitability thereof for the purposes
of the Lessee under this Agreement, without affecting, altering or diminishing
the obligations of the Lessee hereunder. In the event either of any reletting or
of any actual use and occupancy by the Port Authority (the mere right to use and
occupy not being sufficient however) there shall be credited to the account of
the Lessee against its survived obligations hereunder any net amount remaining
after deducting from the amount actually received from any lessee, licensee,
permittee or other occupier as the rental or fee for the use of the said
premises or portion thereof during the balance of the letting as the same is
originally stated in this Agreement, or from the market value of the occupancy
of such portion of the premises as the Port Authority may during such period
actually use and occupy, all expenses, costs and disbursements incurred or paid
by the Port Authority in connection therewith. No such reletting or such use and
occupancy shall be or be construed to be an acceptance of a surrender.
Section 24. Waiver of Redemption
The Lessee hereby waives any and all rights of redemption, granted by
or under any present or future law, arising in the event it is evicted or
dispossessed for any cause, or in the event the Port Authority obtains or
retains possession of the premises in any lawful manner.
Section 25. Remedies and Suits Against the Lessee
All remedies provided in this Agreement shall be deemed cumulative and
additional and not in lieu of or exclusive of each other or of any other remedy
available to the Port Authority at law or in equity. In the event of a breach or
threatened breach by the Lessee of any term, covenant, condition or provision of
this Agreement, the Port Authority shall have the right of injunction and the
right to invoke any other remedy allowed by law or in equity as if termination,
re-entry, summary proceedings and any other specific remedies including without
limitation thereto, indemnity and reimbursement, were not mentioned herein, and
neither the mention thereof nor the pursuance or exercise or failure to pursue
or exercise any right or remedy shall preclude the pursuance or exercise of any
other right or remedy.
Section 26. Surrender
(a) The Lessee covenants and agrees to yield and deliver peaceably to
the Port Authority possession of the premises on the date of the cessation of
the letting, whether such cessation be by termination, expiration, promptly and
in the same condition as at
20
the time the Lessee entered into possession, such reasonable wear excepted as
would not adversely affect or interfere with the efficient and proper
utilization of the premises or any part thereof.
(b) Unless the same are required for the performance by the Lessee of
its obligations hereunder, the Lessee shall have the right at any time during
the letter to remove from the premises, and, on or before the expiration or
earlier termination of the letting, shall so remove its equipment, removable
fixtures and other personal property, and all property of third persons for
which it is responsible, repairing all damages caused by such removal. If the
Lessee shall fail to remove such property on or before the termination or
expiration of the letter, the Port Authority shall have the same rights with
respect to such property as it has in the event of casualty under Section 9(d).
Section 27. Acceptance of Surrender of Lease
No agreement of surrender or to accept a surrender shall be valid
unless and until the same shall have been reduced to writing and signed by the
duly authorized representatives of the Port Authority and of the Lessee. Except
as expressly provided in this Section, neither the doing of, nor any omission to
do, any act or thing, by any of the officers, agents or employees of the Port
Authority, shall be deemed an acceptance of a surrender of the letting or of
this Agreement. Without limiting the foregoing, no employee or officer of the
Port Authority shall be authorized to accept the keys of the premises prior to
the expiration date of the letting as fixed in the Section of this Agreement
entitled "Term" and no delivery of the keys by the Lessee shall constitute a
termination of this Agreement or acceptance of surrender.
Section 28. Notices
(a) Notices, requests, permissions, consents and approvals given or
required to be given to or by either party under this Agreement, shall not be
effective unless they are given in writing, and all such notices and requests
shall be (i) personally delivered to the party or a duly designated officer or
representative of such party; or (ii) delivered to the office of such party,
officer or representative during regular business hours; or (iii) delivered to
the residence of such party, officer or representative; or (iv) if directed to
the Lessee, delivered at the premises at any time; or (v) forwarded to such
party, officer or representative at the office or residence address by
registered or certified mail. The Lessee shall designate an office within the
Port of New York District and an officer or representative whose regular place
of business is at such office. Until further notice, the Port Authority hereby
designates its Executive Director, and the Lessee designates the person named as
representative on the first page hereof as their respective officers or
representatives upon whom notices and requests may be served, and the Port
Authority designates its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and the Lessee designates its office at its address stated on the first
page hereof, as their respective
21
offices where notices and requests may be served.
(b) If any notice is mailed or delivered, the giving of such notice
shall be complete upon receipt, or, in the event of a refusal by the addressee,
upon the first tender of the notice to the addressee or at the permitted
address. If any notice is sent by telegraph, the giving of such notice shall be
complete upon receipt or, in the event of a refusal by the addressee, upon the
first tender of the notice by the telegraph company to the addressee or at the
address thereof.
Section 29. Payments
(a) All payments required of the Lessee by this Agreement shall be made
at the office of the Treasurer of the Port Authority, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or to such other officer or address as may be
substituted therefor.
(b) No payment by the Lessee or receipt by the Port Authority of a
lesser rental amount than that which is due and payable under the provisions of
this Agreement at the time of such payment shall be deemed to be other than a
payment on account of the earliest rental then due, nor shall any endorsement or
statement on any check or in any letter accompanying any check or payment be
deemed an accord and satisfaction, and the Port Authority may accept such check
or payment without prejudicing in any way its right to recover the balance of
such rental or to pursue any other remedy provided in this Agreement or by law.
Section 30. Subrogation
This Agreement and the letting hereunder are and shall be subject and
subordinate to all mortgages which may now or hereafter affect the premises or
the Facility, and to all renewals, modifications, consolidations, replacements
and extensions thereof, and although the provisions of this Section shall be
deemed to be self-operating and effective for all purposes without any further
instrument on the part of the Lessee, the Lessee shall execute on demand and
without expense to the Port Authority such further instruments confirmatory of
the provisions of this Section as the Port Authority may request.
Section 31. Quiet Enjoyment
The Port Authority covenants and agrees that as long as it remains the
owner of the Facility, the Lessee, upon paying all rentals hereunder and
performing all the covenants, conditions and provisions of this Agreement on its
part to be performed, shall and may peaceably and quietly have, hold and enjoy
the premises free of any act or acts of the Port Authority except as expressly
permitted in this Agreement.
22
Section 32. Non-Liability of Individuals
Neither the Commissions of the Port Authority nor any of them, not any
officer, agent or employee thereof, shall be charged personally by the Lessee
with any liability or held liable to it under any term or provision of this
Agreement, or because of its execution or attempted execution, or because of any
breach or attempted or alleged breach thereof.
Section 33. Headings
The section headings and the paragraph headings, if any, are inserted
only as a matter of convenience and for reference and in no way define, limit or
describe the scope or intent of any provision hereof.
Section 34. Construction and Application of Terms
(a) Wherever in this Agreement a third person singular neuter pronoun
or adjective is used referred to the Lessee, the same shall be taken and
understood to refer to the Lessee, regardless of the actual gender or number
thereof.
(b) Whenever in this Agreement the Lessee is placed under an obligation
or covenants to do or to refrain from or is prohibited from doing, or is
entitled or privileged to do, any act or thing, the following shall apply:
(1) If the Lessee is a corporation, its obligations shall be
performed or its rights or privileges shall be exercised only by its
officers and employees; or
(2) If the Lessee is an unincorporated association or a business
or "Massachusetts" trust, the obligation shall be that of its members
or trustees, as well as of itself, and shall be performed only by its
members or trustees, and officers and employees, and the right or
privilege shall be exercised only by its members or trustees, and its
officers and employees; or
(3) If the Lessee is a partnership, the obligation shall be that
of its partners and shall be performed only by its partners and
employees and the rights or privileges shall be exercised only by its
partners and employees; or
(4) If the Lessee is an individual, the obligations shall be that
of himself (or herself) and shall be performed only by himself (or
herself) and his (or her) employees and the right or privilege shall
be exercised only by himself (or herself) and his (or her) employees.
23
(5) None of the provisions of this paragraph (b) shall be taken
to alter, amend or diminish any obligation of the Lessee assumed in
relation to its invitees, customers, agents, representatives,
contractors or other persons, firms or corporations doing business
with it.
(c) If more than one individual or other legal entity is the Lessee
under this Agreement, each and every obligation hereof shall be the joint and
several obligation of each such individual or other legal entity.
(d) Unless otherwise stated in the Section of this Agreement entitled
"Rights of User by the Lessee", the rights of user thereby granted to the Lessee
with respect to the premises shall be exercised by the Lessee only for its own
account and, without limiting the generality of the foregoing, shall not be
exercised as agent, representative, factor, broker, forwarder, bailee, or
consignee without legal title to the subject matter of the consignment.
(e) The Lessee's representative, hereinbefore specified in this
Agreement (or such substitute as the Lessee may hereafter designate in writing),
shall have full authority to act for the Lessee in connection with this
Agreement and any things done or to be done hereunder, and to execute on the
Lessee's behalf any amendments or supplements to this Agreement or any extension
thereof.
(f) This Agreement does not constitute the Lessee, the agent or
representative of the Port Authority for any purpose whatsoever.
(g) All designations of time herein contained shall refer to the
time-system then officially in effect in the municipality wherein the premises
are located.
(h) No greater rights or privileges with respect to the use of the
premises or any part thereof or with respect to the Facility are granted or
intended to be granted to the Lessee by this Agreement, or by any provision
thereof, than the rights and privileges expressly granted hereby.
Section 35. Definitions
The following terms, when used in this Agreement, shall have the
respective meanings given below:
(a) "Letting" shall mean the letting under this Agreement for the
original term stated herein, and shall include any extensions thereof which may
be made pursuant to the provisions of this Agreement, or otherwise.
(b) "World Trade Center" or "Facility" shall mean the building complex
to be
24
constructed by the Port Authority within the area in the Borough of Manhattan,
City, County, and State of New York, bounded generally by the east side of
Church Street on the east, the south side of Liberty Street and the south side
of Liberty Street extended on the south, the ▇▇▇▇▇▇ River on the west, and on
the north by a line beginning at the point of intersection of the ▇▇▇▇▇▇ Rider
and the north side of ▇▇▇▇▇ Street extended, running along the north side of
▇▇▇▇▇ Street extended and the north side of ▇▇▇▇▇ Street to the west side of
Washington Street, then along the west side of Washington Street to the north
side of ▇▇▇▇▇▇▇ Street, then along the north side of ▇▇▇▇▇▇▇ Street to the east
side of West Broadway, then along the east side of West Broadway to the north
side of ▇▇▇▇▇ Street, then along the north side of ▇▇▇▇▇ Street to the east side
of Church Street, together with such additional contiguous area as may be agreed
upon from time to time between the Port Authority and the said City of New York;
(c) The phrase "utility, mechanical, electrical, communication and
other systems" shall mean and include (without limitation thereto) the
following: machinery, engines, dynamos, boilers, elevators, escalators,
incinerators and incinerator flues, systems for the supply of fuel, electricity,
water, gas and steam, plumbing, heating, sewerage, drainage, ventilating, air
conditioning, communications, fire-alarm, fire-protection, sprinkler, telephone,
telegraph and other systems, fire hydrants, fire hoses, and their respective
wires, mains, conduits, lines, tubes, pipes, equipment, motors, cables, fixtures
and other equipment.
(d) "Causes or conditions beyond the control of the Port Authority",
shall mean and include acts of God, the elements, weather conditions, tides,
earthquakes, settlements, fire, acts of governmental authority, war, shortage of
labor or materials, acts of third parties for which the Port Authority is not
responsible, injunctions, strikes, boycotts, picketing, slowdowns, work
stoppages, labor troubles or disputes of every kind (including all those
affecting the Port Authority, its contractors, suppliers or subcontractors) or
any other condition or circumstances, whether similar to or different from the
foregoing (it being agreed that the foregoing enumeration shall not limit or be
characteristic of such conditions or circumstances) which is beyond the control
of the Port Authority or which could not be prevented or remedied by reasonable
effort and at reasonable expense.
(e) "Holidays" or "legal holidays" shall mean and include the following
days in each year: the first day of January, known as New Year's day; the
twelfth day of February, known as Lincoln's birthday; the third Monday in
February, known as Washington's birthday; the last Monday in May, known as
Memorial day; the fourth day of July, known as Independence day; the first
Monday in September, known as Labor day; the second Monday in October, known as
Columbus day; the fourth Monday in October, known as Veterans' day; the fourth
Thursday in November, known as Thanksgiving day; and the twenty-fifth day of
December, known as Christmas day; and if any of such days is Sunday, the next
day thereafter; and each general Election day in the State of New York; and such
other or different days or dates as are declared "holidays" or
25
"legal holidays" under the laws of the State of New York or as may hereafter be
so declared.
(f) "Normal business hours", shall mean 8:00 o'clock A.M. to 6:00
o'clock P.M. Mondays to Fridays inclusive, legal holidays excepted.
Section 36. Force Majeure
(a) The Port Authority shall not be liable for any failure, delay or
interruption in performing its obligations hereunder due to causes or conditions
beyond the control of the Port Authority. Further, the Port Authority shall not
be liable unless the failure, delay or interruption shall result from failure on
the part of the Port Authority to use reasonable care to prevent or reasonable
efforts to cure such failure, delay or interruption.
(b) No abatement, diminution or reduction of the rent or other charges
payable by the Lessee, shall be claimed by or allowed to the Lessee for any
inconvenience, interruption, cessation or loss of business or other loss caused,
directly or indirectly, by any present or future laws, rules, requirements,
orders, directions, ordinances or regulations of the United States of America,
or of the state, county or city governments, or of any other municipal,
governmental or lawful authority whatsoever, or by priorities, rationing or
curtailment of labor or materials, or by war or any matter or thing resulting
therefrom, or by any other cause or condition beyond the control of the Port
Authority, nor shall this Agreement be affected by any such causes or
conditions.
Section 37. Premises
(a) The Lessee acknowledges that it has not relied upon any
representation or statement of the Port Authority or its Commissioners,
officers, employees or agents as to the suitability of the premises for the
operations permitted on the premises by this Agreement. Without limiting any
obligation of the Lessee to commence operations hereunder at the time and in the
manner stated elsewhere in this Agreement, the Lessee agrees that no portion of
the premises will be used initially or at any time during the letting which is
in a condition unsafe or improper for the conduct of the Lessee's operations
hereunder so that there is a possibility of injury or damage to life or
property. For all purposes of this Agreement the premises hereunder
(notwithstanding any statement elsewhere in this Agreement of any rule for the
measurement of the area hereof) shall be deemed to include all of the enclosing
partitions, and the adjacent exterior building walls and glass to and including
the exterior surface thereof.
(b) The Port Authority may by written authorization allow the Lessee to
enter into the possession of the premises prior to the date specified in the
Section of this Agreement entitled "Term" as the commencement of the term of the
letting, solely for
26
the purpose of moving personal property of the Lessee into the premises and of
installing fixtures. If the lessee receives such written authorizations, the
Lessee shall use and occupy the premises in accordance with and subject to all
the terms, covenants, conditions and provisions of this Agreement other than
those relating to payment of rent and rights of user and except as may be
expressly provided otherwise by the written authorization.
Section 38. Governmental Compliance
In the event that all or any portion of the premises is required by the
Port Authority to comply with any present or future governmental law, rule,
regulation, requirement, order or direction, the Port Authority shall give the
Lessee notice that all or any such portion of the premises is so required and
the Lessee shall deliver all or any such portion of the premises so required on
the date specified in such notice and, if the Lessee does not so deliver, the
Port Authority may take the same. No such taking or delivery shall be or be
construed to be an eviction of the Lessee or a breach of this Agreement. In the
event that the Lessee has received a notice hereunder it shall deliver all or
any such portion of the premises so required in the same condition as that
required hereunder for the delivery of the premises on the cessation of the
letting. In the event of the taking or delivery of all the premises, this
Agreement and the letting hereunder shall on the day of such taking or delivery
cease and expire as if that day were the date, originally stated herein for the
expiration of this Agreement; and, in the event of the taking or delivery of any
portion of the premises, then, from and after such taking or delivery, such
portion of the premises shall cease to be a part of the premises hereunder.
There shall be an abatement of the rental in the event of any such taking or
delivery of a portion of the premises as provided in the Section of this
Agreement entitled "Abatement of Rental".
Section 39. Services and Utilities
(a) Subject to all the terms and provisions of this Agreement, the Port
Authority will furnish without additional charge to the Lessee the following:
(1) Heat, ventilation and air cooling to maintain in the premises
an even and comfortable working temperature during normal business
hours;
(2) To the extent that the Lessee's consumption does not exceed
the capacity of feeders, risers or wiring in the premises or Facility,
electricity, during normal business hours, in reasonable quantities
solely for illumination, by which is meant the energizing of
fluorescent and incandescent bulbs (to be supplied, paid for and
installed by the Lessee), and for the operation of such machines and
equipment as the Port Authority may consent to in advance; and
(b) Unless the premises contain toilet and washroom facilities, the
Port Authority shall, without additional charge, furnish non-exclusive toilet
and washroom facilities for
27
the employees of the Lessee.
(c) The Port Authority will supply services in the premises as
described in Schedule B attached hereto and hereby made a part hereof.
(d) If the Lessee, in accordance with the Section of this Agreement
entitled "Construction by the Lessee" or otherwise, erects any partitions or
makes any improvements which stop, hinder, obstruct or interfere with the
cooling of the air or the heating of the premises, or if the Lessee shall fail
to close and keep closed the window coverings when the sun is shining on the
windows of the premises, then no such action by the Lessee shall impose any
obligations on the Port Authority to install facilities, fixtures or equipment
for air-cooling or for heating additional to those existing or presently
contemplated or to increase the capacity or output of initially existing
facilities, equipment or fixtures and the Lessee shall not in any such event be
relieved of any of its obligation hereunder because a comfortable temperature is
not maintained. No consent given by the Port Authority to the erection of
partitions or the making of any improvements shall be or be deemed to be a
representation that the work consented to will not stop, hinder, obstruct or
interfere with either the cooling of the air or heating of the premises or any
portion thereof. It is hereby understood further that the installation by the
Lessee of any equipment which itself requires air cooling or which requires
additional quantities of air cooling at the portion of the premises where such
equipment is installed, or the concentration in any portion of the premises of
such a number of people so as to require additional quantities of air cooling,
shall not impose any obligation on the Port Authority to install facilities,
fixtures and equipment for air cooling additional to those initially existing,
or to increase the capacity or output of initially existing facilities,
equipment or fixtures and the Lessee shall not in any event be relieved of any
of its obligations hereunder.
(e) The Lessee shall keep closed all entrance doors and all windows in
the premises except that doors may be opened when required for ingress or
egress. The Lessee shall not otherwise waste or dissipate the air cooling or
heating services. Without otherwise affecting the Port Authority's rights or
remedies in the event of any breach by the Lessee of its obligations under this
Agreement, the Port Authority shall have the right to discontinue or reduce the
said heating or air-cooling service during any period of such waste or
dissipation and any failure of the Port Authority to supply any such service
under such condition shall not affect any of the Lessee's obligations under this
Agreement.
(f) If any federal, state, municipal or other governmental body,
authority or agency or any public utility assesses, levies, imposes, makes or
increases any charge, fee or rent on the Port Authority for any service, system
or utility now or in the future supplied to or available to the premises or to
any occupants or users thereof or to the structure or building of which the
premises form a part (including but not limited to any sewer rent or
28
charge for the use of sewer systems), the Lessee shall, at the option of the
Port Authority exercised at any time and from time to time by notice to the
Lessee, pay, in accordance with said notice, such charge, fee or rent or
increase thereof (or the portion thereof allocated by the Port Authority to the
premises or the Lessee's operations hereunder) either directly to the
governmental body, authority or agency or to the public utility or directly to
the Port Authority.
(g) The Port Authority shall have the right to discontinue temporarily
the supply of any of the above services when necessary or desirable in the
opinion of the Port Authority in order to make any repairs, alterations, changes
or improvements in the premises or elsewhere in the Facility including but not
limited to all systems for the supply of services.
(h) No failure, delay, interruption or reduction in any service or
services shall be or shall be construed to be an eviction of the Lessee, shall
be grounds for any diminution or abatement of the rentals payable hereunder, or
shall constitute grounds for any claim by the Lessee for damages, consequential
or otherwise, unless due to the negligent acts of the Port Authority, its
employees or agents. The Lessee shall not be entitled to receive any service or
services during any period during which the Lessee shall be in default under any
of the provisions of this Agreement.
(i) The Port Authority shall be under no obligation to supply any
service or services if and to the extent and during any period that the
supplying of any such service or services or the use of any component necessary
therefor shall be prohibited or rationed by any federal, state or municipal law,
rule, regulation, requirement, order or direction and if the Port Authority
deems it in the public interest to comply therewith, even though such law, rule,
regulation, requirement, order or direction may not be mandatory on the Port
Authority as a public agency.
(j) The Port Authority shall have no obligations or responsibility with
respect to the performance of any services or providing, supplying or furnishing
to the Lessee of any utilities or services whatsoever except as expressly
provided in this Section.
Section 40. Additional Services
(a) From and after the commencement by the Lessee of the business
operations in the premises permitted under Section 3, the Port Authority will
furnish to the Lessee in the premises, for operation of the equipment comprising
special air cooling facilities installed by the Lessee, condenser water
sufficient for a rated capacity of seventy (70) tons, and the Lessee agrees to
pay to the Port Authority for such condenser water an annual charge at the rate
of Seventy-five Thousand Seven Hundred Thirty-seven Dollars and Ninety Cents
($75,737.90), such payment to be made by the Lessee to the Port Authority
regardless of whether the Lessee takes none or a portion only of such condenser
water. If
29
the Lessee requires additional quantities of condenser water for use
in its air cooling equipment, and provided the Port Authority has additional
quantities available to furnish to the Lessee, the Port Authority will furnish
the same and the Lessee shall pay to the Port Authority for such additional
condenser water an annual charge at the rate of One Thousand Eighty-one Dollars
and Ninety-seven Cents ($1,081.97) per ton of the rated cooling capacity of the
Lessee's equipment requiring such additional condenser water as determined by
the Port Authority, such payment to be made by the Lessee to the Port Authority
regardless of whether the Lessee takes none or a portion only of such additional
condenser water. The parties hereto acknowledge that the rated capacity of the
Lessee's equipment is eighty (80) tons. In the event of any changes made in the
Lessee's air cooling equipment or the installation thereof, the Lessee shall
supply to the Port Authority such certifications of rated capacity as the Port
Authority shall request, including certifications of third parties. The annual
charge for condenser water, together with the annual charge for additional
condenser water, shall be payable by the Lessee in advance in equal monthly
installments and shall be payable at the same time, in the same manner and shall
be recoverable with like remedies as if it were a part of the basic rental
reserved under this Agreement.
(b) The charges for condenser water stated in paragraph (a) above shall
be subject to increase from time to time as follows: "Wage rate" as used in this
paragraph shall mean the hourly straight time wage rate for Engineers as that
wage rate is established from time to time by collective bargaining agreement
between the Realty Advisory Board on Labor Relations, Incorporated, acting on
behalf of various building owners and Local 94 of the International Union of
Operating Engineers, AFL-CIO, and "basic wage rate" shall mean the wage rate in
effect on January 1, 1992. From and after each wage rate established from and
after January 1, 1992, the Lessee shall pay annual charges in addition to the
charges for condenser water and additional condenser water stated in paragraph
(a) above, such additional charge for condenser water to be at an annual rate of
One Hundred Seventy-five Dollars and No Cents ($175.00) for each one percent
(1%), or major fraction thereof, that the wage rate so established exceeds the
basic wage rate and such additional annual charge for additional condenser water
shall be at an annual rate per ton equal to $2.50 for each one percent (1%), or
major fraction thereof, that the wage rate so established exceeds the basic wage
rate. If either the Realty Advisory Board on Labor Relations, Incorporated, or
Local 94 of the International Union of Operating Engineers, AFL-CIO, shall cease
to exist or a collective bargaining agreement shall cease to be negotiated
between the Realty Advisory Board on Labor Relations, Incorporated and Local 94
of the International Union of Operating Engineers, AFL-CIO, then the wage rate
to be used for computing increases in the said charge shall be the wage rate for
Engineers established under such collective bargaining agreements as the Port
Authority shall select. If the job classification "Engineers" shall be renamed
or abolished, then the Port Authority will select the job classification
performing substantially the same labor functions as Engineers and the wage rate
of the job classification so selected shall be used in computing increases in
the charges provided for herein.
30
(c) The furnishing of condenser water and additional condenser water by
the Port Authority as provided for herein shall be subject to all of the terms,
provisions and conditions of Section 42 of this Agreement. Notwithstanding that
the Port Authority is obligated to furnish condenser water as provided in
paragraph (a) hereof, the Port Authority shall have no responsibility whatsoever
for conditioning or cooling the air in that area of the premises served by the
air cooling equipment installed by the Lessee nor for the maintenance therein of
any specified temperature or comfort level, but nothing set forth herein shall
relieve the Port Authority of its obligation to provide ventilation and air
cooling in accordance with and subject to the provisions of Schedule D attached
hereto and hereby made a part hereof. The Lessee shall and does hereby release
the Port Authority from, and shall indemnify the Port Authority against, any and
all claims and demands, losses or damages (including but not limited to any such
occurring to any data processing or other equipment located in the premises or
to any work product thereof) arising or resulting from the failure to maintain a
proper temperature or air quality in the premises and regardless of whether the
same is due to the acts or omissions of the Port Authority, the Lessee or of
others, unless such failure is due to the negligent acts of the Port Authority.
Section 41. Rental Obligations
(a) The Lessee shall pay to the Port Authority a basic rental for the
premises as follows:
(i) During the period from and after the commencement date of the
term of the letting hereunder through September 10, 1997, the Lessee
shall pay a basic rental at the rate of Nine Hundred Fifteen Thousand
Sixty Dollars and No Cents ($915,060.00) per annum, as follows: in the
sum of Twelve Thousand Seven Hundred Nine Dollars and No Cents
($12,709.00) on July 27, 1993 and in advance in equal monthly
installments in the amount of Seventy-six Thousand Two Hundred
Fifty-five Dollars and No Cents ($76,255.00) on August 1, 1993 and on
the first day of each calendar month thereafter through September 10,
1997, provided however that notwithstanding the foregoing, for the
period from and after September 1, 1997 through and including
September 10, 1997, the Lessee shall pay to the Port Authority the sum
of Twenty-five Thousand Four Hundred Eighteen Dollars and No Cents
($25,418.00).
(ii) During the period from and after September 11, 1997 through
September 10, 2002 the Lessee shall pay a basic rental at the rate of
Nine Hundred Seventy-nine Thousand Two Hundred Seventy-two Dollars and
No Cents ($979,272.00) per annum, as follows: in the sum of Fifty-four
Thousand Four Hundred Three Dollars and No Cents ($54,403.00) on
September 11, 1997 and in advance in monthly installments of
Eighty-one Thousand Six Hundred Six
31
Dollars and No Cents ($81,606.00) each on October 1, 1997 and on the
first day of each calendar month thereafter through September 10,
2002, provided however that notwithstanding the foregoing, for the
period from and after September 1, 2002 through and including
September 10, 2002, the Lessee shall pay to the Port Authority the sum
of Twenty-seven Thousand Two Hundred Two Dollars and No Cents
($27,202.00).
(iii) During the period from and after September 11, 2002 through
the balance of the term of the letting under this Agreement, the
Lessee shall pay a basic rental at the rate of One Million One Hundred
Seventy-one Thousand Nine Hundred Eight Dollars and No Cents
($1,171,908.00) per annum, as follows: in the sum of Sixty-five
Thousand One Hundred Six Dollars and No Cents ($65,106.00) on
September 11, 2002 and in advance in monthly installments of
Ninety-seven Thousand Six Hundred Fifty-nine Dollars and No Cents
($97,659.00) each on October 1, 2002 and on the first day of each
calendar month thereafter throughout the balance of the term of the
letting under this Agreement, provided however that notwithstanding
the foregoing, for the period from and after September 1, 2007 through
the balance of the term of the letting under this Agreement the Lessee
shall pay to the Port Authority the sum of Thirty-two Thousand Five
Hundred Fifty-three Dollars and No Cents ($32,553.00).
(b) If the expiration or termination date of the letting under this
Agreement is other than the last day of a calendar month, the basic rental for
the portion of the last calendar month during which the letting under this
Agreement is in effect shall be the amount of the monthly installment applicable
to that calendar month multiplied by a fraction the numerator of which shall be
the number of days the letting is in effect in that calendar month and the
denominator of which shall be the number of days in that calendar month.
(c) The provisions of paragraph (b) of Section 4 were deleted in their
entirety.
Section 42. Liability Insurance
(a) The Lessee in its own name as assured shall secure and pay the
premium on a policy of comprehensive general liability insurance including a
contractual liability endorsement for such coverage as may be stipulated by the
Port Authority covering the Lessee's operations hereunder which shall be
effective throughout the letting under this Agreement and shall be in a combined
single limit of not less than $2,000,000 for liability for bodily injury, for
wrongful death and for property damage arising from any one occurrence.
(b) The Port Authority shall be included as an additional insured in
any policy of liability insurance required by this Section.
32
(c) As to any insurance required by this Section, a certified copy of
each of the policies or a certificate or certificates evidencing the existence
thereof, or binders, shall be delivered to the Port Authority within twenty (20)
days prior to the commencement date of the letting hereunder. In the event any
binder is delivered, it shall be replaced within thirty (30) days by a certified
copy of the policy or a certificate. Each such copy or certificate shall contain
a valid provision or endorsement that the policy may not be canceled,
terminated, changed or modified, without giving ten (10) days written advance
notice thereof to the Port Authority. A renewal policy shall be delivered to the
Port Authority at least fifteen (15) days prior to the expiration date of each
expiring policy, except for any policy expiring after the date of expiration of
the letting. If at any time any of the policies shall be or become
unsatisfactory to the Port Authority as to form or substance (the Port Authority
hereby agreeing not to act arbitrarily in making such determination), or if any
of the carriers issuing such policies shall be or become unsatisfactory to the
Port Authority, the Lessee shall promptly obtain a new and satisfactory policy
in replacement.
(d) Each policy of insurance required by this Section shall contain a
provision that the insurer shall not without obtaining express advance
permission from the General Counsel of the Port Authority, raise any defense
involving in any way the jurisdiction of the tribunal over the person of the
Port Authority, the immunity of the Port Authority, its Commissioners, officers,
agents or employees, the governmental nature of the Port Authority or the
provisions of any statutes respecting suits against the Port Authority.
Section 43. Electricity
(a) Subject to all the terms, provisions and conditions of Section
42(f), (g), (h) and (i) of this Agreement, and notwithstanding the provisions of
Section 42(a)(2) of this Agreement, and to the extent that the Lessee's
consumption does not exceed the capacity of feeders, risers or wiring in the
building of which the premises is a part or in the premises (it being the
Lessee's sole responsibility for designing and constructing distribution systems
for the premises), the Port Authority will supply to the Lessee electricity
solely for illumination by which is meant the energizing of fluorescent and
incandescent bulbs (to be supplied, paid for and installed by the Lessee) and
for the operation of such machines and equipment as the Port Authority may
consent to in advance and the Lessee shall pay for the same in accordance with
the following provisions of this Section. The total electrical capacity to be
provided by the Port Authority to the premises shall be as set forth in Schedule
D attached hereto and hereby made a part hereof. The quantity of all electricity
supplied to the Lessee shall be measured by a meter or meters furnished by the
Port Authority for that purpose (such meter or meters to be installed by the
Lessee at its sole cost and expense), and in the event any such meter fails to
record such, the quantity of electricity so supplied during any period that a
meter is out of service will be considered to be the same as the quantity
supplied during a like period
33
either immediately before or immediately after such interruption as selected by
the Port Authority. The quantity of such electricity shall be paid for by the
Lessee at the greater of the following rates:
(1) the rates (including the fuel or other adjustment factor, if
any) which the Lessee, under the service classification then
applicable to the Lessee, would be required to pay for the same
quantity of electricity to be used for the same purpose under the same
conditions if the Lessee had purchased such electricity directly from
the public utility company supplying the same to commercial buildings
in the vicinity; or
(2) the Port Authority's cost of obtaining and supplying the same
quantity of electricity.
The Lessee shall pay the cost of such consumption and demand for each such
billing period to the Port Authority upon demand therefor and the same shall be
deemed additional rental collectible in the same manner and with like remedies
as if it were a part of the basic rental reserved hereunder.
(b) Notwithstanding that the Port Authority has agreed to supply
electricity to the Lessee, the Port Authority shall be under no obligation to
provide or continue such service if the Port Authority is prevented by law,
agreement or otherwise from submetering electricity as hereinabove set forth or
elects not to so submeter the same and in any such event the Lessee shall make
all arrangements and conversions necessary to obtain electricity directly from
the public utility company supplying electricity in the vicinity. Also, in such
event, the Lessee shall perform the construction necessary for such conversion
and if any lines or equipment of the Port Authority are with the consent of the
Port Authority used therefor, the Port Authority may make an appropriate charge
therefor to the Lessee based on its costs and expenses for the said lines and
equipment.
Section 44. Late Charges
If the Lessee should fail to pay any amount required under this
Agreement when due to the Port Authority, including without limitation any
payment of basic or other rental or any payment of utility or other charges or
if any such amount is found to be due as the result of an audit, then, in such
event, the Port Authority may impose (by statement, ▇▇▇▇ or otherwise) a late
charge with respect to each such unpaid amount for each late charge period
(hereinbelow described) during the entirety of which* such amount remains
unpaid, each such late charge not to exceed an amount equal to eight-tenths of
one percent of such unpaid amount for each late charge period. There shall be
----------------------------
* such late charge period
34
twenty-four late charge periods on a calendar year basis; each late charge
period shall be for a period of at least fifteen (15) calendar days except one
late charge period each calendar year may be for a period of less than fifteen
(but not less than thirteen) calendar days. Without limiting the generality of
the foregoing, late charge periods in the case of amounts found to have been
owing to the Port Authority as the result of Port Authority audit findings shall
consist of each late charge period following the date the unpaid amount should
have been paid under this Agreement. Each late charge shall be payable
immediately upon demand made at any time therefor by the Port Authority. No
acceptance by the Port Authority of payment of any unpaid amount or of any
unpaid late charge amount shall be deemed a waiver of the right of the Port
Authority to payment of any late charge or late charges payable under the
provisions of this Section with respect to such unpaid amount. Each late charge
shall be recoverable by the Port Authority in the same manner and with like
remedies as if it were originally a part of the basic rental as set forth in the
section of this Agreement entitled "Basic Rental". Nothing in this Section is
intended to, or shall be deemed to, affect, alter, modify or diminish in any way
(i) any rights of the Port Authority under this Agreement, including without
limitation the Port Authority's rights set forth in the section of this
Agreement entitled "Termination" or (ii) any obligations of the Lessee under
this Agreement. In the event that any late charge imposed pursuant to this
Section shall exceed a legal maximum applicable to such late charge, then, in
such event, each such late charge payable under this Agreement shall be payable
instead at such legal maximum. For purposes of this Section only, any payment
required under this Agreement the amount of which cannot be known by the Lessee
until the Port Authority notifies the Lessee thereof, including, without
limitation thereto, amounts found to have been owing to the Port Authority as
the result of Port Authority audit findings, shall not be deemed due to the Port
Authority until such notice has been given.
Section 45. Finishes To Be Provided By The Lessee
(a) The Lessee has thoroughly examined and inspected the premises and
has found the same to be in good order and repair and suitable for the Lessee's
operations hereunder and agrees to take the premises in the condition it is in
when vacated by the occupant thereof and turned over to the Lessee by the Port
Authority, and the Port Authority shall have no obligation hereunder for
finishing work or preparation of the premises for the Lessee's use except that
the Port Authority, through its employees, agents, representatives, contractors
and subcontractors, shall install a peripheral loop fire protection sprinkler
main serving the floor on which the premises is located and shall also refinish
the public corridors, the passenger elevator lobby and the bathrooms on the said
floor, which refinishing work shall include the installation of building
standard wall coverings, ceilings, floor covering and bathroom finishes
conforming in materials, style and workmanship with the aforesaid installations
customarily found on other multiple-tenant floors in the Facility, and except
further that the Port Authority shall remove and replace or cause to be removed
and replaced from building structural steel members above
35
the dropped ceilings in the premises friable asbestos-containing materials as
defined in the guidelines established by the United States Environmental Agency
("USEPA") and set forth in the USEPA publication entitled "Guidance for
Controlling Asbestos-Containing Materials in Buildings" (EPA 560/5-85-024, June
1985), provided that such friable asbestos-containing materials have not been
installed by or for the Lessee, and provided further that, in addition to all
other rights of entry reserved to the Port Authority under this Agreement, the
Lessee expressly provides the Port Authority with access to the premises for
such removal and replacement work. The Lessee shall not do anything during the
term of the letting of the premises which may involve or affect any
asbestos-containing materials which may be or may be found to be present in the
premises except in accordance with any law, rule, regulation, requirement, order
or direction of any governmental authority applicable thereto or which would be
applicable if the building of which the premises are a part were under private
ownership. The Lessee agrees to perform at its sole cost and expense all
construction and installation work that it may require to finish off and
decorate the premises, including the installation of non-asbestos-containing
spray-on fireproofing material in those areas on the underside of the floor slab
immediately above the floor on which the premises is located where fireproofing
material is missing (the said fireproofing material installation work being
hereinafter referred to as the "Additional Work"). In addition, if the Lessee so
elects and if all applicable laws, rules, regulations, orders and directions so
allow, the Lessee, at its cost and expense and in conjunction with its
construction and installation work in the premises, may convert one of the
present women's public bathrooms located on the floor on which the premises is
located into a men's public bathroom which shall include the installation of
urinals and all related plumbing and construction work. In the event the Lessee
so elects to convert a women's public bathroom into a men's public bathroom, the
Port Authority, solely in connection with such initial conversion work, shall
refinish the said converted bathroom in building standard finishes, as provided
above. The Lessee has furnished information to the Port Authority regarding the
gender composition of its current work force and hereby represents and warrants
that such information is complete and accurate. Notwithstanding the above-stated
permission granted to the Lessee to perform the aforesaid bathroom conversion
work, the Lessee shall be required, at any time during the term of the letting
hereunder and at its sole cost and expense, to re-convert the said converted
men's public bathroom into a women's public bathroom within a period of not more
than ninety (90) days following the date of its receipt of demand therefor from
the Port Authority if any applicable laws, rules, regulations orders or
directions, including but not limited to any rules, regulations, orders or
directions set forth in the New York City Building Code (the applicability of
same to be determined as if the Port Authority were a private corporation),
require a women's public bathroom facility on the floor on which the premises is
located in addition to the existing women's public bathroom. In connection with
the foregoing, the Lessee agrees to furnish to the Port Authority, from
time-to-time and upon request, a statement certified by a responsible officer of
the Lessee confirming the gender composition of its then current work force, and
the Lessee shall also furnish to the Port Authority, upon request therefor, any
additional information to
36
enable the Port Authority to determine whether any such re-conversion work is
necessary. In the event such reconversion work is required by applicable law or
otherwise in accordance with the provisions hereof and the Lessee fails to
perform such work within the aforesaid ninety (90) day period, the Port
Authority may itself perform such reconversion work and the cost thereof shall
be and become additional rental recoverable by the Port Authority in accordance
with the provisions of Section 15 of this Agreement. The requirement herein that
the Lessee shall conform to the requirements of any applicable laws, rules,
regulations, orders or directions, including but not limited to any rules,
regulations, orders or directions of the New York City Building Code with
respect to the need to perform such reconversion work shall not be or be deemed
to be a recognition by the Port Authority that the New York City Building Code
is applicable to the World Trade Center or to any other facilities owned or
operated by the Port Authority or that the Port Authority is required by any
law, rule, regulation, order or direction to conform to or comply with the New
York City Building Code. Without limiting the generality of the foregoing, the
Lessee acknowledges that facilities for heat, ventilation and air cooling have
heretofore been installed in the premises pursuant to a certain design
configuration, and notwithstanding the provisions of Section 42 of this
Agreement the Port Authority makes no representations that such heat,
ventilation and air-cooling shall maintain in the premises an even and
comfortable working temperature, and in the event any alteration to such
facilities shall be required in order to maintain an even and comfortable
working temperature the cost of the same shall be bome by the Lessee. Subject to
the foregoing, the Port Authority represents that the design criteria and
capacity of the heat, ventilation and air cooling system available to the Lessee
are as set forth in Schedule D attached hereto. The Lessee shall submit to the
Port Authority for its approval a construction application in the form supplied
by the Port Authority and containing such terms and conditions as the Port
Authority may include setting forth in detail and by appropriate plans and
specifications the construction and installation work proposed by the Lessee to
finish off and decorate the premises and the manner of and time periods for
performing the same, including, without limitation thereto, the Additional Work
and also including plans and specifications for any public bathroom conversion
work undertaken by the Lessee in accordance with the provisions of this Section.
The data to be supplied by the Lessee shall describe in detail the fixtures,
equipment and systems to be installed by the Lessee including those for the
emission, handling and distribution of heat, air conditioning, domestic hot and
cold water and electrical and other systems and shall show the proposed method
of tying in the same to the utility lines or connections provided by the Port
Authority either on or off the premises. The Lessee shall be responsible for
retaining all architectural, engineering and other technical consultants and
services as may be required by the Port Authority and for developing, completing
and submitting detailed plans and specifications for the work. The plans and
specifications to be submitted by the Lessee to the Port Authority shall bear
the seal of a qualified architect or professional engineer and shall be in
sufficient detail for a contractor to perform the work. The Lessee shall not
engage any contractor or permit the use of any subcontractor unless and until
each such contractor or
37
subcontractor shall have been approved by the Port Authority. The Lessee shall
include in each such contract or subcontract such provisions as the Port
Authority may approve or require including, without limitation thereto,
provisions regarding labor harmony. The Port Authority shall review the
construction application and all plans and specifications furnished by the
Lessee with respect to the premises and any public bathroom conversion work
proposed to be undertaken by the Lessee and will forward its comments on the
same to the Lessee within twenty (20) business days after its receipt thereof
provided that such plans and specifications cover all of the construction and
installation work necessary to finish off and decorate the premises (including
the work required for the conversion of a public bathroom if the Lessee elects
to perform such work), and will review and comment on any corrected, modified or
amended plans and specifications resubmitted to the Port Authority by the Lessee
within ten (10) business days after receipt of any such resubmission. If the sum
of the number of business days actually required by the Port Authority for the
review of each submission and resubmission of the Lessee's plans and
specifications as referred to in this paragraph shall be in excess of the sum of
the number of business days allocated to each review of the Lessee's submission
and resubmission of its plans and specifications (as referred to in this
paragraph), there shall be no postponement of the date fixed in paragraph (a) of
Section 44 of this Agreement for the commencement of payment of basic rental,
but upon completion of the construction and installation work to be performed by
the Lessee hereunder, the Lessee shall be entitled to a credit against its basic
rental obligations next becoming due under this Agreement in an amount which
shall be equal to the product obtained by multiplying the number of such excess
business days by the sum of Two Thousand Five Hundred Seven Dollars and No Cents
($2,507.00). The Lessee hereby expressly agrees that such rental credit shall be
the sole remedy available to the Lessee in the event the Port Authority fails,
within the time periods provided, to respond to the Lessee's submission or
resubmission of its construction application and plans and specifications. The
Lessee hereby assumes the risk of loss or damage to all of the construction and
installation work prior to the completion thereof and the risk of loss or damage
to all property of the Port Authority arising out of or in connection with the
performance of the construction and installation work. In the event of such loss
or damage, the Lessee shall forthwith repair, replace and make good the
construction and installation work and the property of the Port Authority
without cost or expense to the Port Authority. The Lessee shall itself and shall
also require its contractors to indemnify and hold harmless the Port Authority,
its Commissioners, officers, agents and employees from and against all claims
and demands, just or unjust, of third persons (including employees, officers and
agents of the Port Authority) arising or alleged to arise out of the performance
of the Lessee's construction and installation work and for all expenses,
including without limitation thereto legal expenses, incurred by it and by them
in the defense, settlement or satisfaction thereof, including without limitation
thereto, claims and demands for death, for personal injury or for property
damage, direct or consequential, whether they arise from the acts or omissions
of the Lessee, of any contractors of the Lessee, of the Port Authority, or of
third persons, or from acts of God
38
or of the public enemy, or otherwise, excepting only claims and demands which
result solely from affirmative willful or solely from negligent acts done by the
Port Authority, its Commissioners, officers, agents and employees with respect
to the construction and installation work, provided, however, that the Lessee
shall not be required to indemnify the Port Authority where such indemnity would
be precluded pursuant to the provisions of Section 5-322.1 of the General
Obligations Law of the State of New York. The Lessee shall, and shall cause each
of its contractors and subcontractors to obtain and maintain in force such
insurance coverage, including without limitation a contractual liability
endorsement covering the obligations assumed by the Lessee in the three
preceding sentences. All work to be performed by the Lessee hereunder shall be
completed in accordance with the said construction application and final plans
and specifications approved by the Port Authority, shall be subject to
inspection by the Port Authority during the progress of the work and after the
completion thereof and the Lessee shall redo or replace at its own expense any
work not done in accordance therewith. Upon completion of the construction and
installation work to be performed by the Lessee pursuant to the construction
application the Lessee shall deliver to the Port Authority a certificate by an
authorized officer of the Lessee and a certificate by the Lessee's qualified
architect or professional engineer, each certifying that the construction and
installation work has been performed strictly in accordance with the
construction application and the final plans and specifications approved by the
Port Authority and the provisions of this Agreement and in compliance with all
applicable governmental laws, ordinances, enactments, resolutions, rules,
regulations and orders. The Port Authority shall inspect the construction and
installation work and if the same has been completed as certified by the Lessee
and such architect or engineer, the Port Authority's General Manager, Planning,
Design and Construction, World Trade Department, shall so certify to the Port
Authority and to the Lessee, subject to the condition that all risks thereafter
with respect to the construction and installation work and any liability
therefor for negligence or other reason shall be borne by the Lessee. The Lessee
shall not use or permit the use of the premises or any portion thereof for any
purpose whatsoever until such certification is received from said General
Manager, Planning, Design and Construction and the Lessee shall not use or
permit the use of the premises or any portion thereof even if such certification
is received with respect to a portion of the construction and installation work
if said General Manager, Planning, Design and Construction states in any such
certification that the premises cannot be used until other specified portions of
the construction and installation work are completed. Upon completion of the
work the Lessee shall supply the Port Authority with "as built" drawings in form
and number requested by the Port Authority. "Business days" as used herein shall
mean Mondays to Fridays, inclusive, legal holidays excepted.
(b) No construction or installation work shall be commenced by the
Lessee until the commencement of the term of the letting under this Agreement
and until the construction application and plans and specifications referred to
in paragraph (a) above have been finally approved by the Port Authority. In the
event of any inconsistency
39
between the provisions of this Agreement and the construction application, the
provisions of this Agreement shall control.
(c) The Lessee shall be solely responsible for the plans and
specifications used by it, and for the adequacy and sufficiency of such plans
and specifications and all the improvements depicted thereon or covered thereby,
regardless of the consent thereto or approval thereof by the Port Authority or
the incorporation therein of any Port Authority requirements or recommendations.
The Port Authority shall have no obligations or liabilities in connection with
the performance of the work performed by the Lessee or on its behalf or the
contracts for the performance thereof entered into by the Lessee. The Lessee
shall undertake reasonable efforts to assure that any warranties extended or
available to the Lessee in connection with the aforesaid work shall be for the
benefit of the Port Authority as well as the Lessee.
(d) Without limiting or affecting any other term or provision of this
Agreement, the Lessee shall be solely responsible for the design, adequacy and
operation of all utility, mechanical, electrical, communications and other
systems installed by the Lessee in the premises and shall do all preventive
maintenance and make all repairs, replacements, rebuilding and painting
necessary to keep such systems and all other improvements, additions and
fixtures, finishes and decorations made or installed by the Lessee (whether the
same involves structural or non-structural work) in the condition they were in
when made or installed except for reasonable wear which does not adversely
affect the watertight condition or structural integrity of the building or
adversely affect the efficient or proper utilization or appearance of any part
of the premises.
(e) Title to and property in the construction and installation work and
to all fixtures, equipment and systems (other than trade fixtures and personal
property and the Lessee's telecommunications system) installed pursuant to this
Section and any replacement or replacements thereof shall vest in the Port
Authority upon the construction, installation or replacement thereof and the
Lessee shall execute such necessary documents confirming the same as the Port
Authority may require.
(f) The Port Authority will pay to the Lessee an amount equal to the
lesser of (1) the cost of the construction and installation work performed in
the premises and the cost of any initial conversion work in the existing women's
public bathroom undertaken by the Lessee pursuant to the provisions of this
Section, but excluding therefrom the cost of the Additional Work, or (2) the sum
of One Million Two Hundred Eighty-four Thousand Two Hundred Eighty Dollars and
No Cents ($1,284,280.00), such lesser amount being hereinafter called the
"Lessee's Finishing Allowance", and, notwithstanding anything to the contrary
set forth in paragraph (a) of this Section, shall also pay to the Lessee the
negotiated sum of Two Thousand Two Hundred Fifty Dollars and No Cents
($2,250.00) as and for the cost of the Additional Work. In no event shall the
amount to be paid to the Lessee for the Additional Work be included in the
Lessee's Finishing Allowance. "Cost" as used herein shall mean the sum of the
following amounts paid by the Lessee for performance of its construction and
installation work in the premises and the cost of any initial conversion work in
the existing women's public bathroom: (i) direct labor and material costs, (ii)
contract costs for the purchase and installation of fixtures, equipment and
other finishing and decorating work excluding those types mentioned of contract
costs covered in the following subdivision (iii) and (iii) engineering,
architectural and planning and design fees which, taken together, do not exceed
twenty (20%) of the amount described in subdivisions (i) and (ii) of this
sentence. The Lessee's Finishing
40
Allowance will be paid to the Lessee as follows: on or about the 10th day of the
calendar month following the calendar month in which the Lessee commences the
construction and installation work in the premises pursuant to the provisions of
this Section and on the 10th day of each calendar month thereafter during the
period of performance of such construction and installation work the Lessee
shall deliver a certificate to the Port Authority signed by a responsible fiscal
officer of the Lessee which shall certify the amount of the payments made by the
Lessee which are properly includible in the Lessee's cost of performing the
construction and installation work (excluding the Additional Work) during the
preceding calendar month, each such certificate to set forth the total
cumulative payments constituting the Lessee's cost made by the Lessee from the
commencement of the construction and installation work to the date of the
certificate and each such certificate to also contain a certification by the
Lessee that the portion of the Lessee's construction and installation work
performed by the Lessee since the last such certificate and covered by such
certificate has been performed strictly in accordance with the terms of this
Agreement and the construction application. Within 15 days after the delivery of
each such certificate by the Lessee, the Port Authority shall pay to the Lessee
the amount constituting the Lessee's cost of performing the construction and
installation work and paid by the Lessee during the preceding calendar month
less ten percent (10%) thereof, provided that the total of such periodic
payments made by the Port Authority shall not exceed ninety percent (90%) of the
Lessee's Finishing Allowance. Upon completion of the construction and
installation work in the premises to the satisfaction of the Port Authority's
General Manager, Planning, Design and Construction, World Trade Department, and
his certification thereof to the Port Authority and to the Lessee, the Port
Authority will pay to the Lessee the amount so certified by the Lessee which
shall be the final amount payable to the Lessee and shall equal the total of the
ten percent (10%) deductions made in connection with all previous periodic
payments less the amount of the Port Authority's periodic payments which a
preliminary determination of the Lessee's cost discloses exceeds the Lessee's
Finishing Allowance, such payment to be made within 15 days after such
certification. Also, upon completion of all the construction and installation
work to be performed by the Lessee pursuant to the provisions of this Section
(including the Additional Work), the Lessee shall supply to the Port Authority a
full statement of the cost thereof, certified by a responsible fiscal officer of
the Lessee which shall itemize the cost of the Lessee's construction and
installation work in the premises. After examination and approval of such
certified statement and after such further examination of the records
41
and books of account of the Lessee as the Port Authority may deem reasonable,
the Port Authority will finally determine the cost of the construction and
installation work performed in the premises (excluding the amount of the
Additional Work) and if such final determination discloses that a part of the
Lessee's Finishing Allowance remains unpaid the Port Authority will pay the same
to the Lessee within fifteen (15) days after such final determination, and if
the final determination discloses that the payments previously made exceed the
Lessee's Finishing Allowance, the Lessee shall repay to the Port Authority the
amount of such excess within fifteen (15) days after notice from the Port
Authority of the amount thereof. Upon the final determination of the cost of the
construction and installation work in the premises, and further upon the mutual
agreement of the Lessee and the Port Authority with respect to the number of
square feet in which fireproofing material has been installed by the Lessee, the
Port Authority shall thereupon pay the Lessee the amount for such work
calculated in accordance with the provisions of this paragraph (f). The Lessee
shall permit the Port Authority by its agents, employees and representatives at
all reasonable times prior to a final determination of cost to examine and audit
the records and other documentation of the Lessee which pertain to and will
substantiate the cost. In no event whatsoever shall cost, as defined and
computed in this paragraph, include any expenses, outlays or charges whatsoever
by or for the account of the Lessee for or in connection with any equipment or
fixtures or the making of any finishing or decorating work unless such are
actually and completely installed in and or made to the premises, nor shall cost
include the cost of any equipment, fixture or improvement which is secured by
liens, mortgages, other encumbrances or conditional bills of sale, nor shall
cost include any payment made to organizations which are owned by or in common
ownership with the Lessee.
Section 46. Additional Provisions Relating to Assignment and Subletting
(a) Notwithstanding the provisions of Section 19(a) of this Agreement,
the Lessee shall have the right to assign this Agreement and the letting
hereunder in its entirety to a corporation which directly or indirectly controls
or is directly or indirectly controlled by the Lessee, or to a corporation which
is directly or indirectly controlled by a corporation which directly controls
the Lessee, and in the case of such indirect control, each of the corporate
entities in the chain between the Lessee and the proposed assignee shall
directly control or be directly controlled by the immediately adjacent corporate
entity in such chain, or to a corporation into or with which the Lessee is
merged or consolidated if all the conditions stated in subparagraph (k)(2) of
Section 54 of this Agreement are met and such assignment is required in
connection with such merger or consolidation, provided however that nothing
contained herein shall limit or affect the provisions of Section 7(h) in any way
and any such assignee shall use the premises solely for the purposes set forth
in Section 3 and for no other purpose whatsoever, and provided further however
that such assignment shall not be effective until an agreement in the form
annexed hereto as "Exhibit Y" has been executed by the Port Authority, the
Lessee, and the proposed assignee, and the Port Authority's consent as herein
stated shall be effective only as long
42
as the proposed assignee maintains the above-described relationship to the
Lessee. If such relationship is no longer in effect, the Port Authority shall
have the right, in addition to all other rights and remedies under this
Agreement, to revoke its said consent and the Lessee and assignee will
immediately cause this Agreement and the letting hereunder to be reassigned to
the Lessee.
(b) Notwithstanding the provisions of Section 19(b) of this Agreement,
the Lessee may, after the commencement of the letting, sublet portions of or all
of the premises (but under no circumstances shall there be more than seven
subtenants in the premises at any one time in addition to the Lessee, or eight
subtenants in the premises at any one time if the Lessee no longer occupies
space in the premises) provided that all of the following conditions precedent
and requirements have been met or satisfied: (1) Each proposed subtenant shall,
in the opinion of the Port Authority, be eligible, suitable and qualified as a
World Trade Center tenant (such opinion not to be exercised arbitrarily by the
Port Authority); (2) The rental payable by the subtenant to the Lessee for or in
connection with its use or occupancy of the subleased space shall be not less
than the rental charged by the Port Authority (taking into account any rental
concession and finishing allowance) for comparable space having a comparable
term on the date of such subletting, provided however that if (i) the term of
any proposed subletting consists of the entire then-remaining balance of the
term of the letting under this Agreement, less one day, and (ii) the conditions
and requirements of subdivisions (1), (4) and (5) of this paragraph (b) have
been met or satisfied, then, subject to the provisions of paragraph (g) of this
Section 49, the rental proposed to be paid to by such subtenant may be less than
the rental charged by the Port Authority (taking into account any rental
concession and finishing allowance) for comparable space for a comparable term;
(3) If the rental and any other consideration payable by the subtenant to the
Lessee for or in connection with its use or occupancy of the subleased space
shall be in excess of the rental rate provided for in this Agreement, the Lessee
shall so notify the Port Authority and the Lessee shall pay fifty percent (50%)
of such excess to the Port Authority as received, subject to the deductions
referred to in paragraph (f) hereof; (4) The proposed subtenant is not a current
occupant of the World Trade Center and has not been in discussion with the Port
Authority toward its current or future occupancy for space in the World Trade
Center within a period of one hundred eighty (180) days immediately preceding
the date the Lessee requests the consent of the Port Authority to such
subletting; and (5) The Lessee, the subtenant and the Port Authority have
executed the form of Consent to Sublease Agreement annexed to this Agreement and
marked "Exhibit X".
(c) Execution of the Consent to Sublease Agreement referred to in
paragraph (b) above by the Port Authority and return thereof to the Lessee shall
constitute the determination referred to in subdivision (1) of paragraph (b)
above. The Lessee and subtenant shall present in advance all documents,
information and other data which the Port Authority may reasonably require
relating to the matters covered in subdivisions (1), (2), (3) and (4) of
paragraph (b) above, and the subtenant shall supply during the
43
continuance of any approved subletting such additional or current documents,
information or other data as the Port Authority may from time to time reasonably
require. The Port Authority shall execute the Consent to Sublease Agreement, or
shall specify to the Lessee its reasons for refusing to do so, within a period
of thirty (30) days following receipt by the Port Authority of a written
sublease agreement fully executed by the Lessee and a proposed subtenant and any
other documents, information and data reasonably required by the Port Authority
with respect to such proposed subletting.
(d) If, after any subletting pursuant to paragraph (b) of this Section
becomes effective, any of the conditions set forth in said paragraph (b) shall
be violated as to any subtenant in the premises, which violation or breach
continues beyond the giving of notice by the Port Authority and the expiration
of a thirty (30) day period to cure, the Port Authority shall have the right, in
addition to all other rights and remedies available under this Agreement, to
cancel the consent to said subletting by notice to the Lessee, in which event
the Sublease between the Lessee and the said subtenant shall immediately
terminate and expire and the Lessee shall immediately cause the said subtenant
to vacate the portion of the premises or the entire premises, as the case may
be, sublet to the subtenant. Notwithstanding the provisions of this Section, the
Lessee shall be solely responsible for complying with any requirements regarding
the permissible number of persons who may use or occupy the portion of the
premises or the entire premises, as the case may be, sublet to the subtenant.
Use or occupancy of the premises by a subtenant pursuant to the consent granted
hereunder shall not entitle such subtenant, by itself, to have or exercise any
rights or privileges which the Port Authority has or may hereafter accord to
lessees of space in the World Trade Center, including, without limitation
thereto, listings on directories, boards, publications or similar privileges.
(e) "Control" or "Controlled" as used in paragraph (a) of this Section
shall mean the ownership by one corporate entity of at least fifty-one percent
(51%) of the issued and outstanding shares of the capital stock and voting
rights (with the power to exercise such rights) of another corporate entity. The
Lessee and a proposed assignee purporting to meet the conditions of paragraph
(a) of this Section shall present in advance all documents, information and
other data which the Port Authority may require relating to the relationship
between them and during the continuance of any approved assignment they shall
supply such additional or current documentation or other data as the Port
Authority may from time to time require.
(f) If, in connection with any subletting pursuant to the provisions of
paragraph (b) hereof consented to by the Port Authority as provided herein, the
Lessee (1) has paid a brokerage commission (at the current rates prevailing in
the City of New York) to a real estate broker licensed to do business in the
State of New York, which brokerage commission is not reimbursed to the Lessee by
the subtenant, provided such brokerage commission is actually paid for services
and is incurred solely in connection with such subletting and would not have
been required to have been paid except for such subletting;
44
or (2) has incurred any cost for finishing and decorating such sublet space to
prepare the same for such subtenant which is not reimbursed to the Lessee by the
subtenant (the total of items (1) and (2) being hereinafter referred to as the
"subleasing expense"), then the Lessee shall divide the subleasing expense by
the number of calendar months and the proportionate part of any partial calendar
month comprising the term of such sublease, and the amount resulting from such
division shall be deducted from the amount of the rental or other consideration
payable by the subtenant to the Lessee each month which is in excess of the
rental rate payable by the Lessee to the Port Authority applicable to the
subleased space for that month, and the balance of such excess of the rental and
other consideration shall be payable by the Lessee to the Port Authority for
that month. If requested by the Port Authority, the Lessee shall make available
from time to time for examination by the Port Authority the Lessee's books and
records relating to the receipt of sublease rental and to the subleasing
expense.
(g) If, in connection with any proposed subletting pursuant to the
provisions of paragraph (b) hereof, the rental payable by the proposed subtenant
to the Lessee for the use and occupancy of the subleased space is less than the
rental being charged by the Port Authority for comparable space having a
comparable term on the date of such proposed subletting and the term of the
proposed sublease is for a term equal to the then-remaining balance of the term
of the letting under this Agreement, less one day, then, by notice to the Lessee
within thirty (30) days following the submission to the Port Authority by the
Lessee of the name and address of the proposed subtenant, the portion of the
premises proposed to be sublet, the use to which the proposed subtenant will put
the premises and the amount of rental, including additional rental payable by
the proposed subtenant under the sublease, the Port Authority may terminate this
Agreement as to the portion of the premises proposed to be subleased (such
termination being hereinafter referred to as the "Port Authority Termination").
The Port Authority Termination shall be effective as of the proposed
commencement date of the proposed sublease, and from and after such effective
date there shall be an abatement of rental in accordance with the provisions of
Section 18 hereof. If, in connection with any proposed subletting pursuant to
the provisions of paragraph (b) hereof, the rental payable by the proposed
subtenant to the Lessee for the use and occupancy of the subleased space is less
than the rental payable by the Lessee under this Agreement and the term of the
proposed sublease is for a term equal to the then-remaining balance of the term
of the letting under this Agreement, less one day, and the Port Authority
exercises its Port Authority Termination option, the Lessee shall pay to the
Port Authority upon the date of such Port Authority Termination the sum of the
following amounts: (i) an amount equal to the then-present value of the
difference between (x) the amount obtained by multiplying the amount of basic
rental payable by the Lessee to the Port Authority under this Agreement for the
premises during the period from the effective date of the Port Authority
Termination through the balance of the term of the letting under this Agreement
by a fraction the numerator of which shall be the number of
45
rentable square feet contained in the portion of the premises proposed to be
subleased and the denominator of which shall be the total number of rentable
square feet contained in the premises and (y) the "Total Sublease Basic Rental
Amount"; the Total Sublease Basic Rental Amount shall be the product obtained by
multiplying the number of months from the effective date of the Port Authority
Termination through the balance of the term of the letting under this Agreement
by the average monthly basic rental amount payable under the proposed sublease,
such average amount to be obtained by dividing the number of months in the
proposed sublease term into the total basic rental payable under the proposed
sublease for the entire term of such sublease and (ii) an amount equal to the
work allowance, if any, offered by the Lessee to the proposed sublessee for
finishing and decorating the portion of the premises proposed to be subleased,
and (iii) an amount equal to the brokerage commission payable by the Lessee, if
any, in connection with the proposed subletting. In determining the present
value of basic rental, an interest rate per annum equal to the prime rate
established by Citibank, N.A. at the time of the determination shall be used.
Notwithstanding anything to the contrary contained in the foregoing, the
provisions of this paragraph (g) shall not be applicable to any proposed
subletting in which the term thereof is less than the then-remaining balance of
the term of the letting under this Agreement, less one day, irrespective of the
amount of the rental to be paid by the proposed subtenant.
Section 47. Lessee's Right of Termination
Upon the terms and conditions hereinafter set forth, the Lessee shall
have the right to terminate this Agreement and the letting hereunder effective
as of a date to be specified by the Lessee in a notice to the Port Authority
which date shall be not earlier than the tenth anniversary of the commencement
date of the letting:
(a) Not later than fifteen (15) calendar months prior to the tenth
(10th) anniversary of the commencement date of the letting, the Lessee shall
give to the Port Authority firm and unconditional notice of its intention to
terminate this Agreement and the letting hereunder and on or before the intended
effective date of termination, the Lessee shall pay to the Port Authority the
sum of One Million Two Hundred Thousand Dollars and No Cents ($1,200,000.00),
which sum shall be in addition to all other amounts, including but not limited
to rental amounts, payable by the Lessee to the Port Authority pursuant to the
provisions of this Agreement through the effective date of termination provided
for herein.
(b) No notice of termination by the Lessee pursuant to paragraph (a)
above shall be effective if the Lessee is in default in the performance or
observance of any term, provision or condition of this Agreement, beyond any
applicable period to cure such default, either on the date of the giving of such
notice or on the intended or effective date of the termination provided for
therein or if on either of such dates the Lessee is under notice of termination
by the Port Authority.
46
(c) Any effective notice of termination given by the Lessee in
accordance with the provisions of this Section 50 shall have the same force and
effect as if the effective date of termination stated in such notice were the
date originally fixed herein for the expiration of the term of the letting under
this Agreement.
Section 48. Security Deposit
(a) The Lessee has heretofore deposited with the Port Authority the sum
of Ninety Thousand Dollars and No Cents ($90,000.00) as security for the full,
faithful and prompt performance of and compliance with, on the part of the
Lessee, all of the covenants, terms and conditions of an agreement of lease
entered into with the Port Authority covering other space at the World Trade
Center and identified as World Trade Center Lease Number WT-1653-N-5 (985)
(hereinafter, the "Existing Lease") on the part of the Lessee to be fulfilled,
kept, performed and observed, all as provided in Section 46 of the Existing
Lease, paragraph 9 of Supplemental Agreement No. 3 to the Lease, paragraph 9 of
Supplemental Agreement No. 4 to the Lease and paragraph 10 of Supplemental
Agreement No. 7 to the Lease. The Lessee and the Port Authority hereby agree
that the said sum shall also be security for the full, faithful and prompt
performance of and compliance with, on the part of the Lessee, all of the
covenants, terms and conditions contained in this Agreement on the part of the
Lessee to be fulfilled, kept, performed and observed. In addition to any and all
other remedies available to it, the Port Authority shall have the right, at its
option at any time and from time to time with or without notice, to use the said
deposit or any part thereof in whole or partial satisfaction of any of its
claims or demands against the Lessee arising under this Agreement. There shall
be no obligation on the Port Authority to exercise such right and neither the
existence of such right nor the holding of the deposit itself shall cure any
default or breach occurring under this Agreement nor be deemed to release any
person, firm or corporation from any of the obligations, claims or demands
arising under this Agreement. In the event the Port Authority shall at any time
or times so use the deposit or any part thereof, whether in connection with any
obligation, claim or demand arising under the Existing Lease or under this
Agreement, or if bonds shall have been deposited and the market value thereof
shall have declined below the amount mentioned above, the Lessee shall, on
demand of the Port Authority and within two days thereafter, deposit with the
Port Authority additional cash or bonds so as to maintain the deposit at the
full amount of Ninety Thousand Dollars and No Cents ($90,000.00) as hereinabove
stated. All such additional deposits shall be subject to all the terms,
provisions and conditions of Section 46 of the Existing Lease and of this
Agreement. Notwithstanding the provisions of the Existing Lease, no part of the
deposit made under the Existing Lease shall be returned by the Port Authority
upon the expiration, cancellation or termination of the Existing Lease unless
this Agreement shall have expired or have been canceled or terminated. In any
event, upon the expiration or earlier cancellation or termination of this
Agreement (and provided that the Existing Lease has expired or been terminated
prior thereto), and upon request therefor by the Lessee, the Port Authority will
return the full deposit less the
47
amount of any and all unpaid claims and demands (including estimated damages) of
the Port Authority by reason of any default or breach by the Lessee of either
the Existing Lease or this Agreement. The Lessee agrees that it will not assign
or encumber the said deposit.
(b) For purposes of the provisions set forth in paragraph (a) hereof,
the Lessee hereby certifies that its I.R.S. Employer Identification No. is
▇▇-▇▇▇▇▇▇▇.
Section 49. Brokerage
Prior to the execution of this Agreement by either party hereto,
Section 28 was deleted in its entirety and the following is hereby substituted
in lieu thereof:
"Section 28. Brokerage
The Lessee represents and warrants that in connection with the
negotiation of this Agreement and the letting hereunder it has not had any
contacts, dealings or conversations with any broker except ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Inc., a New York corporation with an office and place of business at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and that there is no broker who is or may be
entitled to be paid a commission in connection with this Agreement or the
letting hereunder except ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. The Lessee shall indemnify the
Port Authority and save it harmless from any and all claims which have been or
may be made by any and all persons, firms or corporations whatsoever for
services in connection with the negotiation and execution of this Agreement or
the letting hereunder arising out of, through or on account of any contacts,
dealings, acts or conversations of the Lessee in connection with the negotiation
and execution of this Agreement or in connection with any letting of the space
referred to herein except for a claim of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. if the said
claim is made in accordance with the terms of the Agreement between the Port
Authority and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. dated as of July 2, 1992."
Section 50. Changes, Additions and Deletions to this Agreement
Prior to the execution of this Agreement by either of the parties
hereto the following changes, additions and deletions were made:
(a) The Lessee shall not be required by reason of the provisions of
paragraph (c) of Section 5 to make structural improvements, alterations or
repairs to the premises which are also required to be made generally throughout
the World Trade Center unless the requirement generally throughout the World
Trade Center results from particular operations of the Lessee in the premises or
its occupancy thereof which are not common to other tenants at the World Trade
Center.
48
(b) (1) The Port Authority hereby agrees to apply the Rules and
Regulations set forth in Exhibit R and any further rule or regulation hereafter
promulgated by the Port Authority equitably and without discrimination against
the Lessee and all other tenants in the Facility except to the extent that any
such rule or regulation may be inapplicable by agreement or otherwise to the
Lessee or any such tenant.
(2) If a rule or regulation set forth in Exhibit R shall conflict with
any express provision of this Agreement, the provision of this Agreement shall
control.
(c) Subject to all the terms and provisions of this Agreement, and
notwithstanding the provisions of paragraph (e) of Section 7 and Rules 15 and
20, the Lessee may install in the premises, pursuant to an approved construction
application, facilities for the warming and serving of food and nonalcoholic
beverages (including a ▇▇▇▇▇ or similar type unit or warming or microwave oven,
vending machines, hot coffee and tea dispensing equipment, refrigerator and ice
machine) for consumption on the premises solely by the Lessee's employees and
business guests, and lunchroom facilities or other eating facilities, provided
that if such facilities, machines or equipment are operated or supplied by an
independent operator, such contractor, operator or supplier shall be approved by
the Port Authority (such approval not to be unreasonably withheld). None of the
foregoing facilities, equipment or machines shall be installed unless and until
the Port Authority has consented in writing to the type of facilities, machines
and equipment and the methods of installation and locations where such
facilities, machines or equipment may be installed. In the event the
installation of such facilities, machines and equipment shall require
modifications or alterations to building systems or equipment (including
heating, ventilating or air-conditioning systems), and whether such
installations, modifications or alterations are performed by the Lessee or by
the Port Authority, the Lessee shall be responsible for the cost of such
facilities, machines and equipment, the installation thereof and any such
modifications or alterations, and no such installation, alteration or
modification shall be commenced until the Lessee has received an approved
construction application therefor. The Port Authority reserves the right from
time-to-time to make additional charges to the Lessee for costs incurred by the
Port Authority for any and all utilities or other building services used in
connection with any of the aforesaid facilities, machines or equipment. The
Lessee has represented to the Port Authority that no recognizable or measurable
odors will result outside the premises from its intended use of any facilities,
machines and equipment installed by the Lessee, and the Lessee covenants and
agrees that upon notification from the Port Authority that objectionable odors
emanate or result outside the premises from the Lessee's use of any such
facilities, machines or equipment in the premises (whether through the building
heating, ventilating or air-conditioning systems or otherwise), the Lessee will
immediately discontinue use of any such facilities, machines or equipment and
shall not resume the use or operation thereof until written consent therefor has
been obtained from the Port Authority, such consent not to be arbitrarily
withheld. Nothing herein is intended to permit the furnishing to the public on
the premises of any food or other merchandise or
49
any other service of any kind.
(d) (1) The words "and paid for by the Lessee" set forth in the first
and second lines of paragraph (a) of Section 8 were deleted.
(2) Nothing set forth in paragraph (c) of Section 8 shall be deemed
or construed to impose upon the Lessee an obligation to repair any structural
part of the premises, by which is meant the exterior building walls, floor slab,
structural steel members and core walls.
(e) (1) The reference in paragraph (a) of Section 9 to "a casualty
insured against by the Port Authority under the New York Standard Form of Fire
Insurance Policy carried by it on the premises" shall be deemed to include a
casualty which at the time of the occurrence of the damage would have been
covered by the New York Standard Form of Fire Insurance Policy and the New York
Standard Form of Extended Coverage Endorsement, whether or not said policy or
endorsement was actually carried by the Port Authority at the time of such
damage.
(2) The words and figure "ninety (90) days" appearing in the second
and sixth lines of paragraph (a)(1) and in the second line of paragraph (a)(2)
of Section 9 were deleted in each instance the words and figure "one hundred
eighty (180) days" were inserted in lieu thereof.
(3) In the event of damage to the premises under circumstances
described in paragraph (a)(2) of Section 9, the Port Authority shall advise the
Lessee within thirty (30) days after the occurrence of the damage which of the
options set forth in said paragraph (a)(2) it elects to pursue. If the Port
Authority elects under subdivision (i) thereof to repair or rebuild the premises
and estimates that the repairs or rebuilding cannot be completed within one
hundred eighty (180) days after the occurrence of the damage, the Port Authority
shall so notify the Lessee and thereafter the Lessee shall have the right on
thirty (30) days' notice to the Port Authority, exercised within ten (10) days
after the Lessee's receipt of notice from the Port Authority respecting the
duration of the repairs or rebuilding, to terminate the letting under this
Agreement, provided that the chief executive officer of the Lessee certifies to
the Port Authority that the damage to the premises caused by the casualty has
materially impaired the Lessee's ability to conduct its permitted business
operations described in Section 3 of this Agreement prior to the substantial
completion of the repairs or rebuilding and provided further that the Lessee is
not under notice of default or under notice of termination from the Port
Authority either on the date of the giving of its notice to the Port Authority
or on the effective date of such termination. In the event of termination
pursuant to this provision, this Agreement and the letting hereunder shall cease
and expire on the effective date of termination stated in the notice as if such
date were the date originally stated herein for the expiration of this
Agreement. Termination by the Lessee pursuant to the provisions of this
paragraph shall
50
not relieve either party hereto of any obligations or liabilities which shall
have accrued on or before the effective date of termination stated in the
notice, or which shall mature on such date.
(4) If, in the event of damage to the premises under the
circumstances described in paragraph (a)(2) of Section 9, the Port Authority
elects under subdivision (ii) thereof to terminate the letting as to the damaged
portion of the premises only, then the Lessee shall have the right, on thirty
(30) days' notice to the Port Authority, exercised within ten (10) days after
the Lessee's receipt of notice from the Port Authority terminating the letting
as to the damaged portion of the premises, to terminate the letting under this
Agreement as to the balance of the premises with the same effect as expiration,
provided that the Lessee has undertaken all reasonable good faith efforts to
relocate its personnel, systems and equipment from the portion of the premises
in which the casualty has occurred and to continue its business operations in
the balance of the premises not directly damaged by the casualty, provided
further that the chief executive officer of the Lessee certifies to the Port
Authority that the loss of use of the damaged portion of the premises has
materially impaired the Lessee's ability to conduct its permitted business
operations described in Section 3 of this Agreement in the balance of the
premises not directly damaged by the casualty, and provided yet further that the
Lessee is not under notice of default or under notice of termination from the
Port Authority either on the date of the giving of its notice to the Port
Authority or on the effective date of such termination. In the event the Lessee
does not exercise the aforesaid right to terminate the letting as to the balance
of the premises, then the Port Authority, through its employees, agents,
representatives, contractors and subcontractors shall construct and install a
demising wall or walls to demise and separate the damaged portion of the
premises from the balance of the premises remaining to the Lessee.
(f) The word "such" appearing in the first line of paragraph (b) of
Section 10 was deleted and the words "referred to in paragraph (a) of this
Section" were inserted following the word "demand" in the second line of said
paragraph (b).
(g) (1) Notwithstanding anything to the contrary set forth in the
provisions of Sections 12, 26 or 48 hereof, the Lessee shall not be required to
remove upon the expiration or earlier termination of the term of the letting
hereunder, but in its discretion may so remove, its telecommunications equipment
and systems which, for purposes hereof, shall be deemed to include all
free-standing individual units of telecommunications equipment and all frames,
switches and closets associated therewith or forming part thereof. In the event
the Lessee elects to remove the aforesaid telecommunications equipment and
systems, it shall remove each and every component unit thereof, but nothing
herein set forth shall require the Lessee to remove the wiring installed for
such systems and equipment. In any event, and irrespective of whether the Lessee
shall elect to remove its telecommunications equipment and systems, the Lessee
shall be required to remove from the premises upon the expiration of the term of
the letting hereunder all of
51
its standard office equipment, inventories, removable fixtures and other
personal property of the Lessee or for which the Lessee is responsible.
Notwithstanding the foregoing, the Lessee shall not be required to, and shall
not, remove upon the expiration or earlier termination of the term of the
letting hereunder any and all other finishes, systems, or installations made or
installed by the Lessee at any time during the term of the letting hereunder,
including but not limited to, its battery-powered electrical supply system, its
self-contained back-up cooling system and all proprietary air-cooling and fire
suppression systems, all raised flooring, all carpeting, the kitchen and other
facilities. The Lessee shall repair any damage caused by its required removal
work and any telecommunications equipment removal work and shall also be
required to cap all affected electrical and plumbing lines flush with walls,
floors and ceilings to the condition existing at the time the Lessee entered
into possession of the premises. Other than as set forth above, the Lessee shall
not be required to repair or restore the premises upon the expiration or earlier
termination of the term of the letting hereunder, it being understood that
nothing set forth in this paragraph shall alter, affect or diminish in any way
the Lessee's obligations of maintenance and repair during the term of the
letting in accordance with the provisions of this Agreement.
(2) The Port Authority shall not act arbitrarily or capriciously
in granting or withholding the consent described in Section 12. The provisions
of Section 12 shall be deemed to apply solely to work performed by the Lessee
during the term of the letting following completion of the initial construction
and installation work pursuant to Section 48 hereof and shall not be deemed to
apply to any work which is solely decorative in nature and does not involve
matters of life, safety or health and does not directly or indirectly affect any
building systems.
(h) Prior to exercising any right of entry reserved to it under Section
16, and except in cases of emergency, the Port Authority agrees to give the
Lessee reasonable prior oral notice of its intention to enter the premises.
(i) In addition to the right of termination provided for in paragraph
(d) of Section 17, if, in the event of a taking pursuant to paragraph (c) of
Section 17, or a taking or delivery of a portion of the premises pursuant to
Section 41 of this Agreement, the Lessee shall have the right, on ten (10) days'
written notice to the Port Authority given within ten (10) days after such
taking or delivery, to terminate this Agreement and the letting hereunder as to
the balance of the premises with the same effect as expiration, provided that
the Lessee has undertaken all reasonable good faith efforts to relocate its
personnel, systems and equipment from the portion of the premises so taken or
delivered and to continue its business operations in the balance of the premises
not so taken or delivered, provided further that the chief executive officer
certifies to the Port Authority that the loss of use of the portion of the
premises so taken or delivered has materially impaired the Lessee's ability to
conduct in the balance of the premises not taken or delivered the business
operations of the Lessee permitted under Section 3 of this Agreement and
52
provided yet further that the Lessee is not under notice of default or under
notice of termination from the Port Authority either on the date of the giving
of its notice to the Port Authority or on the intended effective date of such
termination. In the event the Port Authority disagrees with the Lessee's
conclusion that the loss of use of the portion of the premises so taken or
delivered has materially impaired the Lessee's ability to conduct its permitted
business operations in the balance of the premises, the Port Authority shall
request arbitration with respect thereto. The arbitration procedures set forth
in subparagraph (e)(4) of this Section 54 shall govern any such arbitration
commenced by the Port Authority. Termination by the Lessee pursuant to the
provisions of this subparagraph shall not relieve the Lessee of any obligations
or liabilities which shall have accrued on or before the effective date of
termination stated in its notice or which shall mature on such date.
(j) In the event that the basic rental payable by the Lessee with
respect to the premises shall be abated pursuant to the provisions of Section
18, then the additional basic rental payable with respect to the premises shall
also be abated. For the purpose of determining the abated additional basic
rental in accordance with the provisions of Schedule A, during the period of
such abatement the "Rentable square feet in the premises" shall be deemed to be
the number of square feet set forth in paragraph (f) of Section 1 of Schedule A
multiplied by a fraction the numerator of which shall be the number of square
feet contained in the remaining portion of the premises and the denominator of
which shall be the number of square feet originally constituting the premises,
both determined as provided in paragraph (b) of Section 18.
(k) The following changes were made in Section 20:
(1) The words "except as expressly permitted in subparagraph
(a)(5) of this Section and in Section 49 of this Agreement" were
inserted at the end of subparagraph (a)(4).
(2) Notwithstanding the provisions of subparagraph (a)(5), a
merger or consolidation shall not be a ground for termination if the
resulting corporation has a financial standing as of the date of the
merger or consolidation at least as good as that of the Lessee, by
which is meant that its ratio of fixed assets to fixed liabilities,
its ratio of current assets to current liabilities and its tangible
net worth shall each be at least as favorable as that of the Lessee.
(3) The word and figure "fifteen (15)" set forth in the last line
of subparagraph (a)(7) were deleted and the word and figure "thirty
(30)" were inserted in lieu thereof.
(4) The word and figure "ten (10)" set forth in the last line of
subparagraph (a)(8) were deleted and the following was substituted
therefor:
53
"twenty (20) days of the Lessee's receipt of notice of filing thereof,
unless within such twenty (20)-day period the Lessee shall secure a
bond in the amount of such lien and shall commence an action for
removal of such lien;"
(5) Subparagraph (a)(10) was deleted in its entirety and the
following was substituted in lieu thereof;
"(10) The Lessee shall fail to pay the rentals or to make any
other payments required hereunder within five (5) days after receipt
of notice from the Port Authority; or"
(6) The provisions of paragraph (f) shall not be deemed to
prevent the Lessee from interposing as a counterclaim any claim which
under the law of the State of New York would be deemed to have been
waived if it were not interposed in any action or proceeding referred
to in said paragraph.
(l) In the last line of paragraph (c) of Section 22 the word and figure
"an interest rate of 4% per annum" were deleted and the words "an interest rate
per annum equal to the rate of interest publicly announced by Citibank, N.A. at
the time of the determination as its base rate (or such other term as may be
used by Citibank, N.A., from time-to-time, for the rate presently referred to as
its 'base rate')" were inserted in lieu thereof.
(m) The words "made at the office of the Treasurer of the Port
Authority, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇" set forth in the
first and second lines of paragraph (a) of Section 30 were deleted and the words
"mailed to The Port Authority of New York and New Jersey, ▇.▇. ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇" were inserted in lieu thereof.
(n) In the case of any mortgage which is hereafter to be placed upon
the premises, the Port Authority will request the mortgagee to agree,
notwithstanding the provisions of Section 31 of this Agreement, to give the
Lessee assurance that the mortgagee will not disturb the Lessee's rights and
possession while the Lessee is not in default under this Agreement and that in
the event of the institution of a foreclosure or other suit or proceeding under
or pursuant to such mortgage, the Lessee will not be made a party to any such
suit or proceeding and the same shall not affect the rights of the Lessee under
this Agreement and any purchaser under such foreclosure or other suit or
proceeding shall take the property subject to this Agreement and shall be bound
by all its covenants as though such purchaser were the original landlord.
Failure or refusal of any mortgagee to give such assurance or to include in the
mortgage a provision to the foregoing effect shall not constitute a breach of
any obligation of the Port Authority or limit the Port Authority's right to
proceed to make a mortgage without such assurance to the Lessee, in
54
which event the provisions of Section 31 of this Agreement shall be and continue
in full force and effect.
(o) Section 32 was deleted in its entirety and the following was
inserted in lieu thereof
"Section 32. Quiet Enjoyment
The Lessee, upon paying all rentals hereunder and performing all the
covenants, conditions and provisions of this Agreement on its part to be
performed, shall and may peaceably and quietly have, hold and enjoy the premises
free of any act or acts of the Port Authority or any successor landlord, except
as expressly permitted in this Agreement, it being understood and agreed that
the Port Authority's liability hereunder shall obtain only so long as it remains
the owner of the Building of which the premises are a part."
(p) Sections 37 and 38 were deleted in their entirety.
(q) The words "and including" in the last line of paragraph (a) of
Section 40 were deleted and the words "but excluding" were inserted in lieu
thereof.
(r) (1) The Port Authority acknowledges that the Lessee intends to
occupy the premises outside of normal business hours and the Lessee acknowledges
that the Port Authority and its contractors will be required to retain personnel
to perform work and to provide utilities and services in connection with the
Lessee's non-business hour use. The Lessee hereby agrees to pay to the Port
Authority the charges established by the Port Authority for such non-business
hour use, as such charges may be increased from time to time, including without
limitation thereto charges for heat, ventilation and air-cooling and for any
other services for which charges are now or in the future generally imposed by
the Port Authority at the Facility for non-business hour usage, it being
understood that the Lessee shall be required to pay such charges only when the
specific services or utilities for which such charges are imposed have been
requested or ordered by the Lessee, it being further understood that the Port
Authority shall have no obligation to provide such services or utilities to the
Lessee during non-business hours unless such are specifically requested by the
Lessee. The Lessee understands that reduced elevator service is available during
non-business hours and that the Lessee's staff and visitors may be subject to
additional security checks during nonbusiness hours.
(2) The words "and the Lessee shall take and pay for" set forth
in the first line of paragraph (c) of Section 42 were deleted.
(3) The words "or desirable" set forth in the second line of
paragraph (g) of Section 42 were deleted.
55
(4) The Port Authority shall not act arbitrarily and capriciously
in temporarily discontinuing the supply of services pursuant to paragraph (g) of
Section 42.
(5) In the event that any failure to supply any service which the
Port Authority has agreed to supply under this Agreement (whether or not excused
by Section 39 or other provisions hereof) renders uninhabitable one or more
portions of the premises so that the Lessee's operations under Section 3 cannot
reasonably be conducted therein, and such failure of service is not the result
of the fault of the Lessee, its officers, employees, agents or contractors, and
provided that the Lessee shall give notice to the Port Authority of such fact
and shall thereafter vacate the said portion of the premises for five (5)
consecutive days, then thereafter, while such uninhabitable and vacant condition
shall continue, the Lessee shall be entitled to an abatement of the basic rental
and the additional basic rental hereunder pursuant to the provisions of Section
18, as amended by the provisions of paragraph (j) of this Section 54, solely as
to the portion of the premises so rendered uninhabitable and vacated.
(s) The Port Authority will not exercise its rights under Rule 27 if
the Lessee removes any lien filed against the premises within twenty (20) days
after the Lessee's receipt of notice of filing thereof or if within such twenty
(20)-day period the Lessee shall secure a bond in the amount of such lien and
shall commence an action for removal of such lien.
It shall be unnecessary to physically make the foregoing changes, additions and
deletions in the aforesaid sections of this Agreement.
Section 51. Entire Agreement
This Agreement consists of the following: pages 1 through 48,
inclusive, plus Exhibits A, X, Y and R and Schedules A, B and D.
It constitutes the entire agreement of the parties on the subject
matter hereof and may not be changed, modified, discharged or extended except by
written instrument duly executed by the Port Authority and the Lessee. The
Lessee agrees that no representations or warranties shall be binding upon the
Port Authority unless expressed in writing in this Agreement.
56
IN WITNESS WHEREOF, the parties hereto have executed these presents as
of the day and year first above written.
THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY
ATTEST:
/s/
By /s/ Director, World Trade Department
------------------------------------
Secretary (SEAL)
EURO BROKERS INC.
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Secretary (SEAL)
(Title) President
------------------------------------
(CORPORATE SEAL)
57
FLOOR PLAN
58
SCHEDULE A
1. For the purposes of this Schedule A, the following provisions shall
apply:
(a) "Taxes" shall mean real estate taxes and assessments which may be
imposed from time to time by the United States of America, the State of New
York or any municipality or other governmental authority, upon the Port
Authority with respect to the buildings, structures, facilities or land at
the World Trade Center or with respect to the rentals or income therefrom
in lieu of or in addition to any tax or assessment which would otherwise be
a real estate tax or assessment and taxes shall include any payments in
lieu of real estate taxes or assessments which may be agreed upon between
the Port Authority and any of the foregoing governmental authorities, other
than payments in lieu of taxes described in paragraph (b) below.
(b) "Payments in lieu of taxes" shall mean such payments as the Port
Authority has agreed to pay the City of New York under an agreement dated
1967 as it may have been or may be hereafter supplemented or amended
(hereinafter called "the City Agreement").
(c) The "annual per rentable square foot factor" referred to in this
Schedule was initially fixed at $1.25 in the City Agreement and provision
was made in paragraph 7(3) of the City Agreement for changes therein from
time to time to reflect changes in the tax rate and changes in assessed
valuations.
(d) "Tax base" shall mean the annual per rentable square foot factor
finally established to be the annual per rentable square foot factor to be
used in computing payments in lieu of taxes for the tax year beginning July
1, 1992.
(e) "Tax year" shall mean the twelve-month period established by The
City of New York as a tax year for real estate tax purposes.
(f) "Wage rate" shall mean the cost for an hour's work by a ▇▇▇▇▇▇
engaged to work a 40 hour work week in a Class A office building in the
City of New York which hourly cost shall be limited solely to the hourly
wage rate for porters as that rate is established from time to time by
collective bargaining agreement between the Realty Advisory Board on Labor
Relations, Incorporated, acting on behalf of various building owners and
Local 32B-32J, Service Employees International Union, AFL-CIO, (which
collective bargaining agreement is hereinafter referred to as "the
Contract"), plus a proper proportion of fringe benefits and other payroll
costs. As used herein:
Page 1 of Schedule A
(1) "▇▇▇▇▇▇" or "porters" shall mean those employees engaged in
the general maintenance and operation of office buildings and
classified as "Others" by the Contract.
(2) "Fringe benefits" shall mean the items of cost which an
employer would be obligated to pay or would incur pursuant to the
Contract on the basis of wages paid to a ▇▇▇▇▇▇ engaged to work a 40
hour work week in Class A office building in New York City who is
entitled to receive on an annual basis the maximum entitlement under
the Contract, including, without limitation, vacation allowances, sick
leave, holiday pay, birthdays, jury duty, medical checkup, lunch time,
relief time, other paid time off, bonuses, union assessments allocable
to pension plans and welfare and training funds, and health, life,
accident, or other such types of insurance.
(3) "Other payroll costs" shall mean taxes payable pursuant to
law by an employer upon the basis of wages paid to a ▇▇▇▇▇▇ engaged to
work a 40 hour work week in a Class A office building in New York
City, including, without limitation, F.I.C.A., New York State
Unemployment Insurance and Federal Unemployment Insurance.
If at any time during the term of the letting under the Lease the
Contract shall require regular employment of porters on days or during
hours when overtime or other premium pay rates are in effect pursuant to
the Contract the hourly wage rate for porters under the Contract for the
applicable period shall be determined by dividing the weekly wage an
employer would be obligated to pay a ▇▇▇▇▇▇ engaged to work a 40 hour work
week in a Class A office building in New York City under the Contract by
40.
If either the Realty Advisory Board on Labor Relations, Incorporated
or Local 32B-32J, Service Employees International Union, AFL-CIO shall
cease to exist or a collective bargaining agreement shall cease to be
negotiated between the Realty Advisory Board on Labor Relations,
Incorporated and Local 32B-32J, Service Employees International Union,
AFL-CIO, or if the job classification "Others" shall be renamed or
abolished in any subsequent collective bargaining agreement entered into
between the Realty Advisory Board on Labor Relations, Incorporated and
Local 32B-32J, Service Employees International Union, AFL-CIO, then the
wage rate to be used in applying the provisions of this Schedule shall be
the wage rate for those employees engaged in the general maintenance and
operation of Class A office buildings either pursuant to any subsequent
collective bargaining agreement between the Realty Advisory Board on Labor
Relations, Incorporated and Local 32B-32J, Service Employees
Page 2 of Schedule A
International Union, AFL-CIO, or if there is no such agreement, then
pursuant to such agreement as the Port Authority shall select.
(g) "Basic wage rate" shall mean the wage rate in effect on January 1,
1992.
(h) "Rentable square feet in the premises" shall mean 32,107 square
feet.
(i) "Lease" shall mean the agreement of lease to which this schedule
is attached.
2. From and after each July 1, following the commencement date of the
letting under the Lease, the Lessee shall pay an additional basic rental under
the Lease at the annual rate computed by multiplying the rentable square feet in
the premises by the excess over the tax base of the total of: (i) the annual per
rentable square foot amount of taxes for the tax year beginning on that July 1;
and (ii) the annual per rentable square foot factor used in computing payments
in lieu of taxes for the tax year beginning on that July 1. If taxes become
payable on a basis other than an annual amount per rentable square foot, the
Port Authority will allocate those taxes to the rentable square feet of space in
the World Trade Center and will notify the Lessee of the amount of such
allocation.
3. In addition to additional basic rental payable under paragraph 2
above, from and after the commencement date of the letting under the Lease, the
Lessee shall pay additional basic rental under the Lease at an annual rate equal
to $0.0065 for each $0.01, or major fraction thereof, that the wage rate in
affect on the commencement date of the letting and each wage rate thereafter
established from time to time during the term of the letting exceeds the basic
wage rate, multiplied by the rentable square feet in the premises.
4. If the imposition or allocation of taxes or the establishment of an
annual per rentable square foot factor to be used in computing payments in lieu
of taxes for any tax year or the establishment of a wage rate to be effective
for any period of time is delayed for any reason whatsoever, the Lessee shall
nevertheless continue to pay the additional basic rental at the annual rate then
in effect subject to retroactive adjustments at such time as the taxes are
imposed or allocated or the said per rentable square foot factor or wage rate
shall have been established.
5. After imposition and allocation of taxes for any tax year and the
establishment for each tax year of the annual per rentable square foot factor
used in computing payments in lieu of taxes and after the effective date of each
wage rate in excess of the basic wage rate, the Port Authority will compute the
annual rate or rates of additional basic rental payable by the Lessee under
paragraph 2 or 3 above and will notify the Lessee of the amounts thereof.
Additional basic rental accruing under paragraph 2 or
Page 3 of Schedule A
3 above shall be computed separately and each amount thereof shall be payable by
the Lessee to the Port Authority in advance in monthly installments, each
installment being equal to 1/12 of the annual rate except that if at the time
the Port Authority gives notice to the Lessee under this paragraph, additional
basic rental shall have accrued for a period prior to the notice, the Lessee
shall pay such additional basic rental in full for such period, within ten days
after such notice.
6. If after an amount of additional basic rental shall have been fixed
under paragraphs 2 or 3 above for any period, taxes are imposed or the amount of
taxes or the annual per rentable square foot factor in regard to payments in
lieu of taxes or the wage rate used for computing such additional basic rental
shall be changed or adjusted, then the additional basic rental payable for that
period shall be recomputed and from and after notification of the imposition,
change or adjustment, the Lessee shall make payments based upon the recomputed
additional basic rental and upon demand the Lessee shall pay any excess in
additional basic rental as recomputed over amounts of additional basic rental
theretofore actually paid. If such change or adjustment results in a reduction
in the amount of additional basic rental for any period prior to notification,
the Port Authority will credit the Lessee with the difference between the
additional basic rental as recomputed for that period and amounts of additional
basic rental actually paid.
/s/ Port Authority
-----------------------
For the Port Authority
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
For the Lessee
Page 4 of Schedule A
SCHEDULE B
Routine Office Cleaning
-----------------------
Daily (Five days each week except Saturdays, Sundays, and Holidays
------------------------------------------------------------------
1. Empty and damp wipe ash trays, empty waste baskets. Transport
collected waste from normal daily office operations only to trash handling areas
and removal from the building. Collection and removal of waste different from or
in excess of that from normal daily office operations is not included and shall
be deemed additional cleaning services and requested in accordance with the
provisions of this Schedule.
2. Dust horizontal surfaces of office furniture, equipment, ledges, and
▇▇▇▇▇.
3. Dust sweep vinyl asbestos floor and/or spot vacuum carpeted
surfaces, if any.
4. Clean and sanitize water fountains.
5. Damp wipe fingerprints, smears, smudges, etc., on door, wall and
partition surfaces.
Weekly (Once each week)
-----------------------
6. Dust vertical surfaces of office furniture and equipment.
7. Vacuum entire carpeted floor surfaces. Quarterly (Once each three
months)
8. Wash interior surfaces of exterior window glass.
9. Dust all pictures, frames, charts, graphs, and similar wall
hangings, plus partitions, doors, and door frame surfaces.
/s/ Port Authority
-----------------------
For the Port Authority
Initialed:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
For the Lessee
Schedule B
SCHEDULE D
----------
HEATING, VENTILATING AND AIR CONDITIONING SYSTEM
------------------------------------------------
The HVAC system is of a dual system design incorporating a peripheral
induction unit system which supplies air within fifteen (15) feet distance
measured inboard from the exterior glass and an interior system which
conditions the balance of the floor area. Each of the systems is designed
to deliver the following quantities subject to a 10% variance.
HVAC AIR SUPPLY QUANTITIES - PERIPHERAL SYSTEM
----------------------------------------------
NORTH WEST
UNIT TYPE UNIT TYPE
NO. OF UNITS/EXP. NO. OF UNITS/EXP.
CFM CFM
----------------- -----------------
FLOOR #3 (19) 50 #1 (9) 50
-----
84B #2 (1) 35 #2 (1) 35
SOUTH EAST
UNIT TYPE UNIT TYPE
NO. OF UNITS/EXP. NO. OF UNITS/EXP.
CFM CFM
----------------- -----------------
FLOOR #4 (28) 60 #4 (28) 60
-----
84B #5 (2) 40 #5 (2) 40
Induction units are spaced at the rate of one (1) unit per two (2) windows
average, subject to verification of actual field conditions. Each unit delivers
air of approximately 60(Degree)F utilizing water which in winter ranges between
80(Degree)F to 130(Degree)F as needed, and in summer at 60(Degree)F average
(current schedule for the air conditioning system to be turned on is March 15
and off is November 15). Supply air to induction units is constant with variable
water temperature and rate of flow.
Page 1 of Schedule D
HVAC AIR SUPPLY QUANTITIES - INTERIOR SYSTEM
AVERAGE SUPPLY
QUADRANT NE NW SE SW AIR TEMP
FLOOR CFM CFM CFM CPM SUMMER - WINTER
-----------------------------------------------------------------------------
84 4895 610 4895 3107 60(Degree)F
Interior supply air rate is .84 CFM per square foot. Air temperature is
controlled by zone thermostat at central air handling unit. Design is based on
one (1) person per 100 square feet and an average electrical load of four (4)
▇▇▇▇▇ per square foot.
The supply air fed from base building air conditioning systems, for both
interior and perimeter areas, shall be capable of maintaining a 78(Degree)F, 50%
RH when outdoor air conditions are 89(Degree)F DB and 73(Degree)F WB, with
window drapes drawn. The winter design conditions are: outdoor air temperature
at 11(Degree)F, indoor air temperature at 70(Degree)F.
FLOOR LOAD DESIGN CRITERIA
--------------------------
Structural design live load is 100 lbs per square foot reducible.
ELECTRICAL SYSTEM CAPACITY
--------------------------
Effective July 1, 1992, a total of eight (8) ▇▇▇▇▇ per rentable (32,107) square
foot of electricity will be available.
/s/ Port Authority
------------------------
FOR THE PORT AUTHORITY
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
FOR THE LESSEE
Page 2 of Schedule D
WTC-CSL-101068 X
----------------
EXHIBIT X
---------
CONSENT TO SUBLEASE
-------------------
Port Authority Lease No.
(said Lease being dated as of )
THIS AGREEMENT, made as of by and among THE PORT
AUTHORITY OF NEW YORK AND NEW JERSEY (hereinafter called "the Port Authority"),
a body corporate and politic, created by Compact between the States of New
Jersey and New York, with the consent of the Congress of the United States of
America and having an office at One World Trade Center, in the Borough of
Manhattan, City, County and State of New York, and
(hereinafter called "the Lessee"), and
(hereinafter called "the Sublessee"),
whose representative is
WITNESSETH, That:
WHEREAS, the Port Authority and the Lessee have entered into a lease
identified above by Port Authority Lease Number and by date and covering
premises at the World Trade Center in the Borough of Manhattan, City, County and
State of New York (which lease, as the same may have been or may hereafter be
supplemented and amended is hereinafter called "the Lease"); and
WHEREAS, the Lessee has requested the consent of the Port Authority to
a proposed sublease, a copy of which is attached hereto and made a part hereof
and is hereinafter called "the Sublease";
NOW, THEREFORE, for and in consideration of the covenants and mutual
agreements herein contained, the Port Authority, the Lessee and the Sublessee
hereby agree as follows:
1. On the terms and conditions hereinafter set forth the Port Authority
consents to the Sublease.
2. The Sublease shall terminate and expire, without notice to the
Sublessee, on the day preceding the date of expiration or earlier termination of
the Lease, or on such earlier date as the Lessee and Sublessee may agree upon or
on the effective date of any revocation of this Consent by the Port Authority.
The Sublessee shall quit the subleased premises and remove its personal property
and personal property for which it is
Page 3 of Exhibit X
responsible therefrom on or before the termination or expiration of the
Sublease.
3. If the Lessee shall at any time be in default under the Lease, the
Sublessee shall on demand of the Port Authority pay directly to the Port
Authority any rental, fee or other amount due to the Lessee. No such payment
shall relieve the Lessee from any obligations under the Lease or under this
Consent or affect the Port Authority's rights or remedies thereunder but all
such payments shall be credited against the obligations of the Lessee or of the
Sublessee, as the Port Authority may determine, for each payment or part
thereof.
4. In any case of difference between the provisions of the Lease or of
this Consent and the provisions of the Sublease, the provisions of the Lease or
of this Consent, as the case may be, shall be controlling, it being the
intention of the Port Authority merely to permit the exercise of the Lessee's
rights (to the extent permitted by the Sublease) by the Sublessee, and not to
enlarge or otherwise change the rights granted by the Lease. All of the terms,
provisions and conditions of the Lease shall be and remain in full force and
effect.
5. The Sublessee, in its operations under or in connection with the
Sublease and its occupancy of the premises, agrees to assume, observe, be bound
by and comply with all the terms, provisions, covenants and conditions of the
Lease.* Without limiting the generality of the foregoing, the Sublessee shall
use the premises for the purposes set forth in Section 3 of the Lease and for no
other purpose whatsoever.**
6. Without in any wise affecting the obligations of the Lessee under
the Lease and under this Consent, the Sublessee agrees with respect to its acts
and omissions to indemnify the Port Authority and to make repairs and
replacements as if it were the Lessee under the Lease. However, all acts and
omissions of the Sublessee shall be deemed to be acts and omissions of the
Lessee under the Lease and the Lessee shall also be severally responsible
therefor, including but not limited to the obligations of indemnification and
repair.
7. In addition to all other remedies available to the Port Authority
under the Lease or otherwise, this Consent may be revoked by the Port Authority
by notice to the Lessee and the Sublessee in the event of any breach by the
Sublessee of any term or provision of the Lease or of this Consent,*** and no
such revocation shall be deemed to affect the Lease or the continuance thereof.
Any notice given to the Sublessee shall be sufficient if given in accordance
with the Section of the Lease entitled "Notices", for the
----------------
* Including, without limitation thereto, the repair and restoration
obligations set forth in Sections 12 and 26 of the Lease, as amended by the
provisions of Section 53(g)(1) of the Lease.
** Or for such other purpose as set forth in the Sublease as would render the
Sublessee eligible, suitable and qualified in the Port Authority's
non-arbitrary determination pursuant to Section 49(b) of the Lease.
*** Which breach continues beyond the giving of any required notice and the
expiration of any applicable period to cure.
Page 4 of Exhibit X
purpose of which the Sublessee hereby designates the person named as
representative on the first page hereof as its officer or representative upon
whom notices may be served and the Sublessee designates its office at the
address stated on the first page hereof as the office where such notices may be
served.
8. The Lessee and Sublessee represent and warrant that the attached
Sublease sets forth the full and entire rental or other consideration payable to
the Lessee by the Sublessee for or in connection with the subletting hereunder
or use or occupancy of the subleased space and they further represent and
warrant that there is no rental or consideration other than as stipulated in the
attached Sublease.
9. The granting of this Consent by the Port Authority shall not be or
be deemed to operate as a waiver of the requirement for consent to any
subsequent subletting (by the Lessee or by the Sublessee) or to any assignment
of the Lease or the Sublease or of any rights under either of them, whether in
whole or in part.
10. References herein to the Sublessee shall mean and include the
Sublessee, its officers, agents, employees and also others on the premises or
the Facility with the consent of the Sublessee.
11. Neither the Commissioners of the Port Authority nor any of them,
nor any officer, agent or employee thereof shall be held personally liable to
the Lessee or to the Sublessee under any term or provision of this Consent or
because of its execution or because of any breach or alleged breach thereof.
IN WITNESS WHEREOF, the Port Authority, the Lessee and the Sublessee
have executed these presents.
ATTEST: THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY
____________________________ By__________________________________
(Title)____________________________
(Seal)
ATTEST: ___________________________________
Lessee
____________________________ By_________________________________
(Title)____________________________
(Corporate Seal)
ATTEST: ___________________________________
Sublessee
____________________________ By_________________________________
Page 5 of Exhibit X
(Title)____________________________
(Corporate Seal)
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the day of , 19 , before me personally came
to me known, who, being by me duly sworn, did depose and say
that he resides at ;
that he is the of
The Port Authority of New York and New Jersey, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of the
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by order of the Board of Commissioners of the said
corporation; and that he signed his name thereto by like order.
____________________________
(notarial seal and stamp)
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the day of , 19 , before me
personally came that he is the of
the corporation described in, and which executed the foregoing instrument; that
he knows the seal of the said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of the said corporation; and that he signed his name thereto by
like order.
____________________________
(notarial seal and stamp)
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the day of , 19 , before me
personally came to me known, who, being by me duly sworn, did
depose and say
that he resides at ;
that he is the of the corporation
described in, and which executed the foregoing instrument; that he knows the
seal of the said corporation; that the seal affixed to the said instrument is
such corporate seal; that it was so affixed by order of the Board of Directors
of the said corporation; and that he signed his name thereto by like order.
____________________________
(notarial seal and stamp)
Page 6 of Exhibit X
EXHIBIT Y
---------
ASSIGNMENT OF LEASE
WITH ASSUMPTION AND CONSENT
(Lease No. )
THIS AGREEMENT, made as of by THE PORT AUTHORITY
OF NEW YORK AND NEW JERSEY (hereinafter called "the Port Authority"), a body
corporate and politic created by Compact between the States of New York and New
Jersey, with the consent of the Congress of the United States of America, having
an office for the transaction of business at One World Trade Center, in the
Borough of Manhattan, in the City, County and State of New York, and
(hereinafter called "the Assignor"),
a corporation organized and existing under the laws of the State of
with an office for the transaction of business at
an individual, residing at
a partnership, consisting of
and
(hereinafter called "the Assignee"),
a corporation organized and existing under the laws of the State of
with an office for the transaction of business at
an individual, residing at
a partnership, consisting of
the representative of which is
WITNESSETH, THAT:
WHEREAS, the Assignor desires to assign to the Assignee that certain
Agreement of Lease dated as of , 19 , made by and between The Port
Authority and the Assignor, and hereinafter, as the same has been heretofore
amended and extended, called "the Lease";
covering premises at
WHEREAS, the Port Authority is willing to consent to such assignment on
certain terms, provisions, covenants and conditions:
Page 1 of Exhibit Y
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained, the Port Authority, the Assignor and the Assignee hereby agree
as follows:
1. The Assignor does hereby assign, transfer and set over to the
Assignee, heirs, executors, administrators and successors to
and their own proper use, benefit and behoof forever, the Lease, to have and to
hold the same unto the Assignee heirs, executors, administrators and successors
from the day of , 19 , for and during all the rest, residue,
and remainder of the term of the letting under the Lease, subject nevertheless
to all the terms, provisions, covenants and conditions therein contained; and
the Assignor does hereby assign, transfer and set over unto the Assignee heirs,
executors, administrators and successors, all right, title and interest of the
Assignor in and to a certain deposit (whether of cash or bonds) in the amount of
made by the Assignor with the Port Authority, as security for the
performance of the terms, provisions, covenants and conditions of the Lease, but
subject to the provisions of the Lease and to any claim or right to the said
deposit or any part thereof heretofore or hereafter made or to be made on the
part of the Port Authority.
2. The Port Authority hereby consents to the foregoing assignment.
Notwithstanding anything herein to the contrary, the granting of such consent by
the Port Authority shall not be, or be deemed to operate as, a waiver of the
requirement for consent or consents to each and every subsequent assignment by
the Assignee or by any subsequent assignee, nor shall the Assignor be relieved
of liability under the terms, provisions, covenants and conditions of the Lease
by reason of this consent of the Port Authority or of one or more other consents
to one or more other assignments thereof.
3. The Assignor agrees that this assignment of the Lease and this
consent of the Port Authority thereto shall not in any way whatsoever affect or
impair the liability of the Assignor to perform all the terms, provisions,
covenants and conditions, including without limitation thereto the obligation to
pay rent, of the Lease on the part of the Lessee or tenant thereunder to be
performed, and that the Assignor shall continue fully liable for the performance
of all the terms, provisions, covenants and conditions, including without
limitation thereto the obligation to pay rent, on the part of the Lessee or
tenant thereunder to be performed.
4. The Assignee does hereby assume the performance of and does hereby
agree to perform, observe and be subject to, all the terms, provisions,
covenants and conditions, including without limitation thereto the obligation to
pay rent, contained in the Lease, which were or are to be performed or observed
by or are applicable to the Lessee thereunder as though the Assignee were the
original signatory to the Lease. Without limiting the foregoing, as an
inducement to the Port Authority to consent to this assignment, the Assignee has
agreed to all the provisions of Section 7(h) and has made the same
representations required of the Lessee under Section 7(h) and the Assignee
hereby covenants and agrees that the Assignee will use the premises solely for
the purpose set forth in Section 3 of the Lease and that such use shall be
subject to the provisions of Section 7(h) of the Lease. The execution of this
instrument by the Port Authority does not constitute a representation by it that
the Assignor has performed or fulfilled every obligation required by the Lease;
and as to such matters the Assignee agrees to rely solely upon the
representation of the Assignor.
Page 2 of Exhibit Y
5. Neither the Commissioners of the Port Authority nor any of them, nor
any officer, agent or employee thereof, shall be charged personally by the
Assignor or by the Assignee with any liability or held liable to either of them
under any term or provision of this Agreement, or because of its execution or
attempted execution, or because of any breach or attempted or alleged breach
thereof.
IN WITNESS WHEREOF, the Port Authority, the Assignor and the Assignee
have executed these presents as of the date first hereinabove set forth.
ASSIGNOR:
_____________________________
ATTEST: By____________________________
_____________________
(Title)_______________________
(Seal)
ASSIGNEE:
_____________________________
ATTEST: By____________________________
_____________________
(Title)_______________________
(Seal)
WITNESS:
_____________________ _________________________(L.S.)
WITNESS:
_____________________ _________________________(L.S.)
THE PORT AUTHORITY OF NEW
YORK AND NEW JERSEY
_____________________________
ATTEST: By____________________________
_____________________
(Title)_______________________
(Seal)
Page 3 of Exhibit Y
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the day of , 19 , before me came
to me known, who, being by me duly sworn, did depose and say that he resides at
that he is the of THE PORT OF NEW YORK AUTHORITY, the
corporation described in, and which executed the foregoing instrument; that he
knows the seal of the said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by order of the
Commissioners of the said corporation; and that he signed his name thereto by
like order.
---------------------------
STATE OF )
) ss.
COUNTY OF )
On the day of , 19 , before me personally came
to me known, who, being by me duly sworn, did depose and say, that he resides
that he is the of
the corporation described in and which executed the foregoing instrument; that
he knows the seal of the said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by order of the Board
of directors of the said corporation; and that he signed his name thereto by
like order.
---------------------------
STATE OF )
) ss.
COUNTY OF )
On the day of , 19 , before me
personally came , to me known, who, being by me duly
sworn, did depose and say, that he resides
that he is the of
the corporation described in and which executed the foregoing instrument; that
he knows the seal of the said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of the said corporation; and that he signed his name thereto by
like order.
---------------------------
Page 4 of Exhibit Y
EXHIBIT R
RULES AND REGULATIONS
FOR THE WORLD TRADE CENTER
1. PERMISSION GRANTED TO USE WORLD TRADE CENTER CONDITIONAL. Permission
granted by the Port Authority directly or indirectly, expressly or by
implication, to any person or persons, to enter upon or use any part of the
World Trade Center (including lessees and other persons occupying or using space
at the World Trade Center, persons doing business with the Port Authority or
with its lessees or permittees, and all other persons whatsoever whether or not
of the type indicated), is conditioned upon compliance with the Port Authority
Rules and Regulations as from time to time may be changed; and entry upon or
into the World Trade Center by any person shall be deemed to constitute an
agreement by such person to comply with said Rules and Regulations.
2. The Manager of the World Trade Center shall have authority to deny
the use of the World Trade Center to any person violating the said Rules and
Regulations or laws, ordinances or regulations of the United States, the State
of New York or the City of New York.
3. ENTRY RESTRICTIONS. Persons shall use the common areas and
facilities in the World Trade Center solely for purposes of ingress and egress,
and no person shall cause any obstruction of or loiter in any such common area
or facility. No person shall interfere with the safe, orderly flow of vehicular
or passenger traffic. No person shall be permitted to sleep, lie down or sit on
the floor, ledges, platforms, steps or escalators nor erect any unauthorized
permanent or temporary structure at the World Trade Center without the express
written permission of the Manager. In addition, no person shall spit, urinate or
defecate on any part of the World Trade Center other than in a urinal or toilet
intended for that purpose. No person shall enter upon any court or roof area or
parking area unless specifically so authorized by lease, permit, license or
other agreement with the Port Authority. The Port Authority may exclude from
buildings at the World Trade Center, between the hours of 6 p.m. and 8 a.m. and
at all hours on Saturday, Sundays and legal holidays, all persons who do not
present a pass to the World Trade Center. All such passes shall be in such form
as the Manager of the World Trade Center may prescribe from time to time and no
person shall issue passes unless authorized in writing by the Manager to do so.
Any area barricaded, roped off or otherwise restricted, shall be presumed to be
closed to the public, and members of the public are prohibited from entering
said areas without the express permission of the Manager or his designee.
Furthermore, if the Port Authority deems it advisable for security reasons,
occupants of space at the World Trade Center and persons frequently doing
business there shall provide, and their employees shall wear or carry, badges or
other suitable means of identification which shall be subject to the prior
approval of the Port Authority. Each
Page 1 of Exhibit R
person responsible for issuance of a pass or other means of identification to
another person shall be liable to the Port Authority for all acts or omissions
of such other persons.
4. No person shall ▇▇▇▇▇▇ or conduct or engage in any game of chance at
the World Trade Center unless such game of chance is permitted by local, state
and federal law and has been approved by the Manager.
5. No person may for commercial use make drawings or take still
photographs or motion pictures within the World Trade Center without permission
of the Manager.
6. No persons other than authorized persons or employees of the Port
Authority in designated areas, shall bathe, shower, shave, launder or change
clothes or remain undressed in any public restroom, sink. washroom on or within
the World Trade Center.
7. AUTHORIZATION REQUIRED FOR COMMERCIAL ACTIVITY, ENTERTAINMENT OR
SOLICITATION OF FUNDS. No person at the World Trade Center, unless duly
authorized in writing by the Port Authority, shall: (a) sell, or offer for sale
any articles of merchandise or carry on any other commercial activity; or (b)
solicit any business or trade, or perform or offer to perform any service,
including without limitation thereto the carrying of baggage for hire, the
shining of shoes or bootblacking; or (c) entertain or offer to entertain any
persons by any method including, without limitation thereto, by singing, dancing
or playing any musical instrument; or (d) canvass, peddle, or solicit funds for
any purpose.
8. ALCOHOLIC BEVERAGE RESTRICTIONS. No person shall drink or carry any
open alcoholic beverage on any part of the World TRADE Center; provided,
however, that this section shall not apply to those premises or areas wherein
the consumption of alcoholic beverages is permitted pursuant to the provisions
of a lease or other written agreement with the Port Authority.
9. PERMISSION REQUIRED FOR POSTING OR DISTRIBUTION OF PRINTED MATTER,
ETC. No person shall post, distribute, exhibit, inscribe, paint or affix (nor
shall any person cause, direct or order the posting, distributing, exhibiting,
inscribing, painting or affixing of) signs, advertisements, circulars, notices,
posters, or printed or written or pictorial matter or articles or objects of any
kind at, in, on or to any part of the common areas and facilities of the World
Trade Center without the prior written consent of the Manager of the World Trade
Center. In the event of the violation of the foregoing, the Port Authority may
remove the same without any liability, and may charge the expense and cost
incurred for such removal to the person or persons violating this rule.
Page 2 of Exhibit R
10. PROPERTY DAMAGE. No person shall deface, ▇▇▇▇, break or otherwise
damage any part of the World Trade Center or any property thereat. No person
shall remove, alter or deface any barricade, fence or sign at the World Trade
Center.
11. All persons at the World Trade Center shall exercise the utmost
care to avoid and prevent injury to persons and damage to property. Neither any
inclusion in nor any omission from these Rules and Regulations shall be
construed to relieve any person from exercising the utmost care to avoid and
prevent injury to persons and damage to property.
12. LOST ARTICLES TO BE TURNED OVER TO PORT AUTHORITY. Persons finding
lost articles at the World Trade Center shall turn them over to a Port Authority
policeman or to the office of the Manager. Articles which are not claimed by the
owner within 90 days may be turned over to the finders thereof, unless found by
Port Authority employees.
13. ANIMALS AND PETS, BARRED, EXCEPTION. No person except a police
officer or other person authorized by the Manager of the World Trade Center
shall enter in or upon the World Trade Center with any animal or pet of any kind
except a "seeing eye" dog or an animal properly confined for shipment.
14. REQUESTS FOR PORT AUTHORITY EMPLOYEES TO PERFORM WORK OR SERVICES
TO BE DIRECTED TO MANAGER. No person shall request any Port Authority employee
to do any work or perform any service, but shall make all such requests to the
Manager of the World Trade Center who may not comply with the request unless the
person making the request is entitled to receive the service AT the time the
request is made under written agreement with the Port Authority, and each person
claiming to be so entitled shall make known such fact to the Manager when the
request is made.
15. SMOKING, OPERATION OF CUTTING TORCHES AND LIKE DEVICES RESTRICTED.
No person shall smoke or carry lighted cigars. cigarettes, pipes, matches or any
naked flame in any place where smoking is specifically prohibited by signs, and
no person shall operate at the World Trade Center an oxyacetylene torch,
electric arc or similar flame or spark-producing device, ▇▇▇▇ or light a fire or
otherwise create a fire or life/safety hazard on any part of the World Trade
Center. No person shall tamper with or permit to be done anything which may
interfere with the effectiveness or accessibility of any fire prevention,
warning or extinguisher equipment at the World Trade Center nor use the same for
any purpose other than fire fighting or fire prevention. Tags showing date of
last inspection attached to units of fire extinguishing and fire fighting
equipment shall not be removed therefrom.
16. TRANSPORTATION, STORAGE, ETC. OF CERTAIN MATERIALS AND SUBSTANCES
PROHIBITED. No person shall store, keep, carry, handle, use, dispense or
transport at, in or
Page 3 of Exhibit R
upon the World Trade Center, or bring into the World Trade Center for any
purpose:
(a) any flammable, combustible, explosive, corrosive, oxidizing,
poisonous, compressed or otherwise offensive fluid, gas, chemical substance
or material, at such time or place or in such manner or condition as to
endanger unreasonably or as to be likely to endanger unreasonably persons
or property; or
(b) any firearms or any other weapons, except persons carrying
firearms pursuant to and in compliance with law and all licenses, permits.
etc. in connection therewith including such of the following as may be on
official duty: authorized peace officers, post office, customs or express
carrier employees or members of the armed forces of the United States; or
(c) the following radioactive materials:
(1) source material (as defined in Standards for Protection
Against Radiation, promulgated by the Nuclear Regulatory Commission,
Title 10, Code of Federal Regulations, Part 20) including but not
limited to uranium, thorium, or any combination thereof (but not
including the "unimportant quantities of source material" set forth in
10 CFR 40.13);
(2) special nuclear material (as defined in Standards for
Protection Against Radiation, promulgated by the Nuclear Regulatory
Commission, Title 10, Code of Federal Regulations, Part 20) including,
but not limited to, plutonium, uranium 233, uranium enriched in the
isotope 233 or in the isotope 235, or any material artificially
enriched by any of the foregoing;
(3) nuclear reactor fuel elements that are partially expended or
irradiated;
(4) new nuclear reactor fuel elements;
(5) radioactive waste material; or
(6) any radioactive material moving under an Interstate Commerce
Commission special permit or Nuclear Regulatory Commission permit and
escort.
17. TAMPERING WITH CONTROLS, EQUIPMENT, ETC. PROHIBITED. No person
shall tamper with or permit to be done anything which may interfere with the
effectiveness or accessibility of any World Trade Center controls, machinery or
equipment including without limitation thereto thermostats, heater valves,
sprinkler valves and devices, or blower motors, and no person shall turn on or
off heating or air cooling controls in the World Trade Center or operate, adjust
or otherwise handle or manipulate any of the aforesaid systems or portions
thereof or operate any other equipment, machinery or other devices installed or
located therein unless expressly authorized in writing by the Port Authority to
do so.
18. OVERLOADING OF UTILITY, MECHANICAL, ETC., SYSTEMS
PROHIBITED. No person shall keep, maintain, place or install, use or connect at
the World Trade Center any equipment or engage in any activity or operation at
the World Trade Center which will cause or tend to cause an overloading of the
capacity of any electrical circuit or system or portion of any other utility,
mechanical, electrical, electronic, computerized communication or other systems
serving the World Trade Center, nor do or permit to be done anything which may
interfere with the
Page 4 of Exhibit R
effectiveness or accessibility of existing and future utility, mechanical,
electrical, electronic, computerized communication or other systems or portions
thereof at the World Trade Center. No person shall in any common area plug a TV,
radio or electrical device into any electrical outlet or connect any device to
any utility at or in the World Trade Center without the express written approval
of the Manager.
19. OBSTRUCTION OF EXPANSION OR CONTRACTION JOINTS PROHIBITED. No
person shall place any furniture, machine or equipment over any expansion or
contraction joint unless one end of such furniture, machine or equipment is free
to permit expansion or contraction.
20. PERMISSION REQUIRED FOR INSTALLATIONS OR OPERATION OF CERTAIN
EQUIPMENT. No person shall install or use at the World Trade Center, except with
the prior written consent of the Manager of the World Trade Center, any air
conditioning unit or equipment, refrigerator, heating or cooking apparatus or
other power activated equipment or any signal or call system or other
communication systems or equipment or any device which connects to the power or
other lines for signal or communications or other transmissions in any way
whatsoever. No person shall install or operate at the World Trade Center any
device which may in the Port Authority's opinion interfere with or impair any
radio, television or telephone transmission or reception or any other
communication service.
21. PERMISSION REQUIRED TO LAY FLOOR COVERING. No person shall lay any
linoleum, floor tile, carpeting or any other affixed floor covering at the World
Trade Center without the prior written consent of the Manager of the World Trade
Center, and if such consent is given, such directions as the Port Authority may
give as to methods and procedures to be used in the laying and installing of any
such floor covering shall be followed.
Page 5 of Exhibit R
22. LOCKS AND KEYS. No person shall place any additional lock of any
kind upon any window or interior or exterior door without the prior written
consent of the Manager and unless a key therefor is delivered to the Port
Authority, nor make any change in any door or window lock or the mechanism
thereof, except with the prior written consent of the Manager. Upon the
expiration or sooner termination of any agreement covering occupancy of space,
the occupant shall surrender to the Port Authority any and all keys to interior
and exterior doors or windows, whether said keys were furnished to or were
otherwise procured by occupants and in the event of the loss of any keys
furnished by the Port Authority the occupant shall pay to the Port Authority the
Port Authority's cost of replacement thereof.
23. OBSTRUCTION OF LIGHT, AIR, HEAT, PASSAGE, ETC. PROHIBITED. No
person shall obstruct or permit the obstruction of light, air or passage in the
World Trade Center, or cover or obstruct any elements of the heating,
ventilating or air cooling systems therein. In addition, no person shall place
any window coverings including without limitation thereto, curtains, blinds,
shades, draperies or screens on any exterior window, without the prior written
consent of the Manager of the World Trade Center, but all occupants of space
shall provide and install, at their expense, such draperies as the Port
Authority may in its discretion require or approve, and all occupants of space
shall keep the draperies closed whenever the sun is shining on the windows.
24. APPROVAL REQUIRED FOR CERTAIN SERVICE CONTRACTS. No person shall
purchase or contract for spring water, ice, waxing, rug shampooing, draperies,
towels, cleaning, glass washing, furniture polishing, lamp servicing, cleaning
of electric fixtures, removal of waste paper, rubbish and garbage, or other like
services at the World Trade Center except from contractors, companies or persons
approved by the Port Authority.
25. MEASURES REQUIRED TO ELIMINATE DAMAGING VIBRATIONS. All persons in
their operations and use of space at the World Trade Center shall take all
reasonable measures to eliminate vibrations tending to damage any part of the
World Trade Center.
26. OBJECTIONABLE NOISE PROHIBITED. No person shall make, continue,
cause or permit to be made or continued, any objectionable or disturbing noises
or disturb or interfere with occupants of the World Trade Center or neighboring
buildings or premises, whether by the use of any loudspeaker or other amplifying
device, musical instrument, radio, talking machine, television, unmusical noise,
whistling, singing, or in any other way. Nothing in this section shall affect
the right of the Port Authority in its sole discretion to authorize commercial
activity, entertainment or solicitation of funds.
27. ACTS OR OMISSIONS RESULTING IN FILING OF LIENS PROHIBITED. No
person shall do or omit to do anything which may be grounds for the filing of
any mechanic's or other lien against the World Trade Center or any part thereof.
Nothing
Page 6 of Exhibit R
herein shall be deemed to be a consent by the Port Authority to any such lien or
the filing thereof or any implication that such lien would be valid or
enforceable against the Port Authority or its property, but if such lien is
filed, notwithstanding that it may be groundless or unenforceable, the Port
Authority may take such steps as may be required to remove it including payment
of any debts alleged to be owed by any person and such person shall pay the Port
Authority the Port Authority's cost thereof upon demand.
28. NAMES OF PERSONS TO BE NOTIFIED IN EVENT OF EMERGENCY TO BE FILED.
Each occupant of space at the World Trade Center shall file with the Port
Authority the name, address, and telephone number of at least two authorized
representatives to be notified in the event of an emergency.
29. DOORS, WINDOWS TO BE LOCKED AND UTILITY SERVICES TURNED OFF UPON
LEAVING. All occupants of space at the World Trade Center shall, before leaving
the same at any time, close and lock all entrance doors therein and turn off all
utility services controllable by the occupant.
30. USE OF PREMISES FOR LODGING, SLEEPING OR IMMORAL PURPOSES
PROHIBITED. No occupant of space at the World Trade Center shall use the same
for lodging or sleeping purposes or for any immoral purposes.
31. USE OF PREMISES DURING OTHER THAN NORMAL BUSINESS HOURS. When an
occupant of space at the World Trade Center intends to occupy the space during
hours other than normal business hours, the occupant shall make a request, in
writing, for such of those services which the occupant is entitled to receive
during normal business hours as the occupant may desire during hours other than
normal business hours, each such request to be made by 4 p.m. of the last
business day before each day during which the services are desired. Such
services will be provided and paid for by the occupant in accordance with the
schedule of rates established by the Port Authority from time to time and the
occupant agrees that the Port Authority has made no representations or
warranties that the premises will be habitable or usable by the occupant during
other than normal business hours unless the aforesaid services are requested in
advance by the occupant. An occupant of any space at the World Trade Center
shall advise the Manager of the World Trade Center one day in advance of any
occasion when the space he occupies will not be occupied during normal business
hours because of vacations or special holidays.
32. SIDEWALKS, OPEN AREAS, ETC. TO BE KEPT FREE FROM SNOW, ICE, DIRT
AND RUBBISH. All persons occupying at the World Trade Center any space which has
an entrance or exit opening out on a sidewalk or other open area, shall keep all
sidewalks, open areas, curbs, lobbies, vestibules and steps adjacent to such
space free from snow, ice, dirt and rubbish.
Page 7 of Exhibit R
33. ABANDONMENT OF PROPERTY PROHIBITED. No person shall abandon any
property at the World Trade Center. Nor shall any person for himself, herself or
another store either temporarily or permanently any personal property at any
part of the World Trade Center without the approval of the Manager of the World
Trade Center. No person shall store bundles, paper, cloth, cardboard or any
other material in solid, liquid or gas form that could in any way pose a fire or
life/safety hazard or obstruct or hinder passage without the express, written
approval of the Manager.
34. ACCUMULATION AND DISPOSAL OF GARBAGE, DEBRIS, WASTE, ETC.
RESTRICTED. No person shall allow any garbage, debris, or other waste materials
(whether solid or liquid) to collect or accumulate at the World Trade Center and
each person shall be responsible for the removal from the World Trade Center of
all garbage, debris and other waste materials (whether solid or liquid) arising
out of that person's operations or occupancy or use of space at the World Trade
Center. All persons shall use extreme care when effecting removal of all such
waste and in no event shall any person use for such purpose any facilities of
the Port Authority without the prior consent in writing of the Manager of the
World Trade Center. All persons shall effect such removal only during such hours
and by such means as are prescribed by the Manager of the World Trade Center. No
person shall use the water closets, wash bowls or other plumbing fixtures for
any purposes other than those for which they were designed, and no person shall
throw therein any improper articles or substances (whether liquid or solid)
including without limitation thereto garbage, refuse, sweepings, rubbish, rags,
ashes or litter. No person shall drop or throw anything out of the doors,
windows or down the passageways or into any ventilating or elevator shaftway,
stairwell or other openings. The cost of correcting any condition or repairing
any damage resulting from misuse of fixtures or facilities or from other actions
prohibited herein shall be borne by the persons who, or whose officers,
employees, representatives, agents, contractors or invitees, have caused the
same.
35. TRASH REMOVAL. All persons at the World Trade Center are
responsible for providing for their own trash removal to a compactor provided by
the Manager for this purpose. No other method of trash disposal is permitted
without the express written consent of the Manager.
36. MOVEMENT OF INVENTORY, SUPPLIES, EQUIPMENT, FURNISHINGS, ETC.
RESTRICTED. No person shall move inventory, merchandise, supplies or materials,
fixtures, equipment, furnishings, or bulky articles of any kind, including
without limiting the generality thereof, desks, chairs, tables, safes, cabinets,
shelves, business machines, fans or floor coverings, to or from any space at the
World Trade Center except with the prior written consent of the Manager of the
World Trade Center and during such hours on such days as may be prescribed by
the Manager of the World
Page 8 of Exhibit R
Trade Center. In no event will consent be given unless the person employed or
under contract to perform such moving is competent and responsible and at least
24 hours' notice of the person's desire to have such moving performed has been
given in writing to the Manager of the World Trade Center. No person shall use
hand trucks in the passenger elevators or shall use the passenger elevators to
transport freight or bulky packages of any type without the written consent of
the Manager of the World Trade Center.
37. RIGHT RESERVED TO INSPECT FREIGHT, ARTICLES, PACKAGES, ETC. BROUGHT
IN OR OUT. The Port Authority reserves the right to inspect all freight and
other articles including hand-carried packages brought into or out of the World
Trade Center and to exclude therefrom all articles which violate any of these
Rules and Regulations, and to require the occupants of space and others
regularly doing business at the World Trade Center to issue package passes (in
such form as may be approved by the Port Authority) for packages being carried
to or from, or from one location to another within the World Trade Center.
38. ELEVATOR SERVICE.
(a) Non-exclusive automatic passenger elevator service will be
operated during normal business hours.
(b) Minimal passenger elevator service will be available at times
other than normal business hours for persons who may have business in
the World Trade Center during such times and whose presence in the
World Trade Center is duly authorized in the manner the Port Authority
prescribes.
(c) Freight elevators and truck docks will be available for
routine movements during normal business hours. Notice must be given
within normal business hours to the Manager of the World Trade Center
at least 24 hours in advance in the event freight elevator service is
desired which cannot be accommodated as a routine movement or during
normal business hours. The person requesting the same will pay the
cost for this extra freight elevator service in accordance with the
schedule of rates established by the Port Authority from time to time.
Persons for whose account property is being delivered or picked up at
the truck docks shall arrange for such delivery or pick-up to be made
only at such place or places as may be designated by the Port
Authority for such purposes and shall arrange for the handling and
movement of the property in such a way that it will be removed from
the truck docks immediately upon its arrival there, and such persons
shall not allow any property to be placed or transported at any time
in any common area or facility at the World Trade Center unless the
area or facility is one which the Manager has designated AS a proper
area or facility for that type of property or transportation or to
remain therein for a longer time than is necessary to transport it to
its destination. The Port Authority will not be responsible for the
custody, security, handling or movement of property while at the truck
docks or on the freight elevators or while en route to or from either
of the same and the person for whose account property is being
delivered or picked
Page 9 of Exhibit R
up at the truck docks or is being transported on, to or from freight
elevators shall make all arrangements for loading, unloading, handling
and movement of the property and its security, including keeping the
property attended at all times. Property may be moved within the World
Trade Center solely by suitable vehicles of the indoor industrial
▇▇▇▇▇▇▇ type with rubber tire and side guards and by way of such
routes as the Manager may designate from time to time.
39. OPERATION OF ELEVATORS BY PERSONS OTHER THAN PORT AUTHORITY
EMPLOYEES PROHIBITED. No person other than employees of the Port Authority, or
their designees, shall operate any freight elevator or passenger elevator
(except for the operation in automatic passenger elevators of such controls as
are designed for use by passengers) at the World Trade Center.
40. USE OF ELEVATOR, ESCALATORS AND LOADING DOCKS RESTRICTED.
(a) Passenger elevators and escalators may not be used to carry
freight.
(b) The use of any escalator, elevator, private right-of-way or
truck loading dock at the World Trade Center will be subject to the
direct control of the Manager.
(c) No unauthorized person shall cause an elevator or escalator
to stop by means of any emergency stopping device unless continued
operation would appear to result in probable injury to a person or
persons. Any such stopping should be reported immediately to the
Manager.
41. VEHICULAR TRAFFIC RESTRICTED. No person shall (nor shall any
occupant of space at the World Trade Center permit its officers, employees,
agents, representatives of other persons who are connected with or are doing
business with such occupant or who are at the World Trade Center for the purpose
of visiting such space, to) operate any automotive or other vehicle (including
skateboard, roller skates or bicycle, scooter or any self-propelled vehicle or
device) in any area of the World Trade Center not designated for such use, or
operate the same in any vehicular roadway, parking area, public area or street,
in or adjacent to the World Trade Center, or park or allow any vehicle to stand
in any such roadway, area or street except in accordance with such signs, speed
limits, lights, signals, pavement markings, directions, laws, ordinances, rules
and regulations (of the Port Authority or of such other agency, municipality or
other governmental authority having Jurisdiction) as may be in force from time
to time. No person shall park vehicles except in those portions of the parking
area designated for that purpose by the Port Authority and except upon payment
of such parking fees and charges as may from time to time be prescribed and if
specific space is assigned to that person then only in the space so assigned. In
the event that a person shall park in any space other than the specific
Page 10 of Exhibit R
space assigned to that person then that person shall pay to the Port Authority
upon demand $25 per day per car parked in any area other than those designated.
42. DISABLED, ABANDONED OR ILLEGALLY PARKED VEHICLES SUBJECT TO
REMOVAL. The Manager may remove from any area at the World Trade Center any
vehicle which is disabled, abandoned, parked in violation of these Rules and
Regulations, or which presents an operational problem to any area at the World
Trade Center, at the operator's or owner's expense and without liability for
damage which may result in the course of such moving.
43. OPERATION OF MOTOR VEHICLES. No person shall operate a vehicle at
the World Trade Center in a careless or negligent manner or in disregard of the
rights and safety of others, or without due caution or circumspection, or at a
speed in excess of speed limits posted in the area where the vehicle is being
operated, or in any event at a speed in excess of fifteen (15) miles per hour,
or at any speed or in a manner which endangers unreasonably or is likely to
endanger unreasonably persons or property, or while the driver thereof IS under
the influence of intoxicating liquor, or any narcotic or habit-forming drug or
if such vehicle is so constructed, equipped or loaded as to endanger
unreasonably or be likely to endanger unreasonably persons or property, or
unless (a) the driver thereof is duly authorized to operate such vehicle on
State or municipal highways; and (b) such vehicle is registered in accordance
with the provisions of law.
44. DUTY OF DRIVER OF VEHICLE INVOLVED IN ACCIDENTS. The driver of any
vehicle involved in an accident at the World Trade Center which results in
injury or death to any person or damage to any property shall immediately stop
such vehicle at the scene of the accident, render such assistance as may be
needed, and give his name, address, and operator's license and registration
number to the person injured or to any officer or witnesses of the accident. The
operator of such vehicle shall make a report of such accident in accordance with
the law of the State of New York.
45. DEFINITIONS. As used in these Rules and Regulations:
(a) "Holidays" or "legal holidays" shall mean and include the
following days in each year: the first day of January, known as New
Year's day; the third Monday in January, known as ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇. day; the twelfth day of February, known as Lincoln's birthday; the
third Monday in February, known as Washington's birthday; the last
Monday in May, known as Memorial day; the fourth day of July, known as
Independence day; the first Monday in September, known as Labor day;
the second Monday in October, known as Columbus day; the eleventh day
of November, known as Veteran's day; the fourth Thursday in November,
known as Thanksgiving day; and the twenty-fifth day of December, known
as Christmas day; and if any of such days is Sunday, the next day
thereafter; and each general election day in the State of New York;
and
Page 11 of Exhibit R
such other or different days or dates as are declared "holidays" or
"legal holidays" under the laws of the State of New York or as may
hereafter be so declared.
(b) "Normal business hours" shall mean 8 a.m. to 6 p.m. Mondays
to Fridays inclusive, legal holidays excepted.
(c) "Person" or "persons" shall mean and include natural persons,
corporations and other legal entities, whether foreign or domestic,
sovereign states and governments, governmental and quasi-governmental
authorities, bureaus, agencies, boards and other units of governments,
and partnerships, firms, companies, joint ventures and unincorporated
associations. All persons shall be responsible for the acts or
omissions of their officers, members, employees, agents,
representatives, contractors, customers, guests, invitees, and those
doing business with them.
(d) "Manager" or "Manager of the World Trade Center" shall mean
the person or persons from time to time designated by the Port
Authority to exercise the powers and functions vested in the said
Manager by these Rules and Regulations and shall include a temporary
or acting Manager of the World Trade Center and his duly designated
representative or representatives.
(e) "Common areas and facilities" shall mean and include, without
limiting the generality thereof, entrances, exits, lobbies, toilets,
passages, halls, corridors, courts, plazas, vestibules, stairways and
elevators, escalators and other areas and facilities for the movement
of persons and/or property.
Page 12 of Exhibit R
(Port Authority Acknowledgment)
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 17th day of June, 1993, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ to me known, who, being by me duly sworn, did depose and say that he
resides in ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; that he is the Director,
World Trade Department of The Port Authority of New York and New Jersey, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of the said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by order of the Board
of Commissioners of the said corporation; and that he signed his name thereto by
like order.
---------------------------------
(Corporate Acknowledgment)
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 24th day of December, 1992, before me personally came ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ to me known, who, being by me duly sworn, did depose and say that he
resides in Franklin Lakes, New Jersey; that he is the President of Euro Brokers
Inc., one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of the said corporation; that the seal
affixed to the said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of the said corporation; and that he signed his
name thereto by like order.
---------------------------------
Page 13 of Exhibit R
