EXHIBIT 10.3
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PRIME LEASE
BETWEEN
NATIONAL RAILROAD PASSENGER CORPORATION, AS LANDLORD
AND
PENN STATION LEASING, LLC, AS TENANT
FOR PREMISES LOCATED AT:
PORTIONS OF PENNSYLVANIA STATION
(RETAIL, CONCOURSE, AND ANCILLARY FACILITIES)
NEW YORK, NEW YORK
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TABLE OF CONTENTS
PAGE
1 Definitions..............................................................1
2 Demising of Premises; Term..............................................21
2.1 Demise..........................................................21
2.2 Term............................................................21
3 Rent....................................................................21
3.1 Fixed Rent......................................................21
3.2 Payment; Proration; Etc.........................................21
3.3 Additional Rent.................................................21
3.4 No Allocation to FF&E...........................................22
3.5 No Offsets......................................................22
3.6 Government Restriction on Rent..................................22
4 Additional Payments by Tenant; Impositions..............................22
4.1 Landlord's Net Return...........................................22
4.2 Impositions.....................................................23
4.3 Assessments in Installments.....................................23
4.4 BID Decisions...................................................23
4.5 Direct Payment by Landlord......................................23
4.6 Utilities.......................................................24
4.7 Interaction with Amtrak Sublease................................24
5 Use.....................................................................24
5.1 Permitted Use...................................................24
5.2 Control.........................................................24
5.3 Railroad Station Operations.....................................25
5.4 Management Fees.................................................25
6 Compliance..............................................................25
6.1 Generally.......................................................25
6.2 Copies of Notices...............................................25
7 Maintenance and Alterations.............................................26
7.1 Obligation to Maintain..........................................26
7.2 Construction Work...............................................26
7.3 Plans and Specifications........................................27
7.4 Applications and Filings........................................27
7.5 Other Cooperation with Approvals................................27
7.6 Landlord Nonappearance..........................................27
8 Prohibited Liens........................................................27
8.1 Tenant's Covenant...............................................28
8.2 Protection of Landlord..........................................28
8.3 Landlord's Additional Covenant..................................28
9 Hazardous Substances....................................................29
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PAGE
9.1 Restrictions....................................................29
9.2 Compliance; Clean-Up............................................29
9.3 Environmental Indemnity.........................................30
10 Indemnification; Liability of Landlord..................................30
10.1 Obligations.....................................................30
10.2 Liability of Landlord...........................................30
10.3 Indemnification Procedures......................................31
11 Right of Contest........................................................32
11.1 Tenant's Right; Contest Conditions..............................32
11.2 Landlord Obligations and Protections............................33
11.3 Miscellaneous...................................................34
12 Insurance...............................................................34
12.1 Tenant to Insure................................................34
12.2 Nature of Insurance Program.....................................34
12.3 Policy Requirements and Endorsements............................35
12.4 Deliveries to Landlord..........................................35
12.5 Waiver of Certain Claims........................................36
12.6 No Representation...............................................36
13 Losses and Loss Proceeds................................................36
13.1 Notice..........................................................36
13.2 Effect of Casualty..............................................36
13.3 Substantial Condemnation........................................36
13.4 Insubstantial Condemnation......................................37
13.5 Temporary Condemnation..........................................37
13.6 Use of Loss Proceeds............................................38
13.7 Payments for Fee Estate.........................................38
13.8 Continuation of Lease...........................................38
14 Representations and Warranties..........................................39
14.1 Due Authorization and Execution.................................39
14.2 No Litigation...................................................39
14.3 FIRPTA..........................................................39
15 Transfers by Landlord...................................................39
15.1 Landlord's Right to Convey......................................39
16 Fee Mortgages...........................................................40
16.1 Landlord's Rights...............................................40
16.2 Fee Mortgage Foreclosure........................................40
16.3 Protection of Fee Mortgagees....................................40
17 Tenant's Transfers......................................................41
17.1 Tenant's Absolute Right.........................................41
18 Subleases...............................................................41
18.1 Tenant's Right to Sublet........................................41
18.2 Assignment of Subrents..........................................41
18.3 Required Provisions.............................................41
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PAGE
18.4 Conditions to Effectiveness of Certain Transactions.............42
18.5 Release of Assignor.............................................42
19 Leasehold Mortgages.....................................................43
19.1 Tenant's Rights.................................................43
19.2 Landlord's Acknowledgment of Leasehold Mortgagee................43
19.3 Future Modifications............................................43
19.4 Recognition; Certain Obligations................................44
19.5 Termination of Leasehold Mortgagee's Rights.....................44
20 Operational Protections for Leasehold Mortgagees........................44
20.1 Leasehold Impairments...........................................44
20.2 Certain Proceedings.............................................45
20.3 Copies of Notices...............................................45
20.4 Governmental and Other Notices..................................45
20.5 Tenant's Rights, Generally......................................46
21 Leasehold Mortgagees' Notice and Opportunity to Cure....................46
21.1 Tenant's Cure Period Expiration Notice; Right to Cure...........46
21.2 Additional Time for Leasehold Mortgagee's Cure Rights...........46
21.3 Multiple Defaults...............................................48
21.4 Effect of Cure..................................................48
21.5 Quiet Enjoyment.................................................48
21.6 Leasehold Mortgagee's Right to Enter............................49
21.7 Payments by Leasehold Mortgagee.................................49
22 Leasehold Mortgagee's Right to a New Lease..............................49
22.1 Documentation and Priority......................................49
22.2 Adjustment for Net Income.......................................50
22.3 Pendency of Dispute.............................................50
22.4 Assignment of Certain Items.....................................50
22.5 Landlord's Costs and Expenses...................................51
22.6 Survival........................................................51
23 Bankruptcy..............................................................51
23.1 Affecting Tenant................................................51
23.2 Affecting Landlord..............................................51
24 Equipment Liens.........................................................53
24.1 Tenant's Rights.................................................53
24.2 Required Provisions for Equipment Liens.........................53
25 Quiet Enjoyment; Title to Certain Premises; Certain Agreements..........53
25.1 Quiet Enjoyment.................................................54
25.2 Access and Inspection...........................................54
25.3 Title to Improvements and FF&E..................................54
25.4 Single Purpose Entity...........................................54
26 Events of Default; Remedies.............................................54
26.1 Definition of "Event of Default."...............................54
26.2 Remedies........................................................55
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PAGE
26.3 Proceeds of Reletting...........................................58
26.4 Exculpation; Landlord's Sole and Exclusive Remedy...............59
26.5 Tenant's Late Payments; Late Charges............................59
26.6 Landlord's Right to Cure........................................59
26.7 Holding Over....................................................59
26.8 WAIVERS.........................................................60
26.9 Accord and Satisfaction; Partial Payments.......................60
26.10 Miscellaneous...................................................60
27 End of Term.............................................................62
28 Notices.................................................................62
29 No Broker...............................................................63
30 Nonrecourse.............................................................63
31 Memorandum of Lease.....................................................63
32 Additional Deliveries; Third Parties....................................64
32.1 Estoppel Certificates...........................................64
32.2 Further Assurances..............................................64
32.3 Amendment.......................................................64
32.4 Successors and Assigns..........................................64
33 Miscellaneous...........................................................64
33.1 No Waiver by Silence............................................64
33.2 Unavoidable Delay...............................................65
33.3 Performance Under Protest.......................................65
33.4 Costs and Expenses; Legal Costs.................................65
33.5 Vault Space.....................................................65
33.6 No Consequential Damages........................................65
34 Interpretation, Execution, and Application of Lease.....................66
34.1 Governing Law...................................................66
34.2 Counterparts....................................................66
34.3 Reasonableness..................................................66
34.4 Partial Invalidity..............................................66
34.5 Interpretation..................................................66
34.6 Delivery of Drafts..............................................67
34.7 Captions........................................................67
34.8 Entire Agreement................................................67
35 State Statutory Provisions..............................................67
35.1 Casualty........................................................67
35.2 Windows.........................................................67
35.3 Statutory Right of Redemption...................................68
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PRIME LEASE
This PRIME LEASE (together with all exhibits and schedules attached,
and as it may be modified, amended, renewed, supplemented, extended, or replaced
by the parties hereto from time to time, this "LEASE") is made and entered into
as of June 20, 2001 (the "COMMENCEMENT DATE"), between NATIONAL RAILROAD
PASSENGER CORPORATION, doing business as AMTRAK, a District of Columbia
corporation (together with its successors and assigns, "LANDLORD"), and PENN
STATION LEASING, LLC, a Delaware limited liability company (together with its
successors and assigns, "TENANT").
W I T N E S S E T H:
WHEREAS, Landlord owns all of the following real property
(collectively, excluding however all Excluded Premises, the "PREMISES"): (a) the
Improvements; (b) the Appurtenances; and (c) the Equipment;
WHEREAS, Landlord desires to lease the Premises to Tenant, and
Tenant desires to lease the Premises from Landlord;
WHEREAS, in addition to the lease of the Premises to Tenant,
Landlord has made certain covenants for the benefit of Tenant pursuant to
SECTION 8.3 ("LANDLORD'S ADDITIONAL COVENANTS");
WHEREAS, contemporaneously herewith, Tenant is subleasing the entire
Premises to Landlord (in such capacity, the "AMTRAK SUBTENANT") pursuant to a
Facility Sublease of even date herewith (the "AMTRAK SUBLEASE"); and
WHEREAS, the parties desire to enter into this Lease to set forth
their rights and obligations relating to the Premises and Landlord's Additional
Covenants.
NOW, THEREFORE, for good and valuable consideration, by entering
into this Lease, Landlord leases and demises the Premises to Tenant, and Tenant
takes and hires the Premises from Landlord, subject only to Permitted Exceptions
and the Reserved Rights, for the Term, upon the terms and conditions of this
Lease.
1 DEFINITIONS.
The following definitions apply in this Lease, together with any
other definitions in this Lease. Terms may be used before they are defined. An
Index of Defined Terms follows the signature page. A term defined in the plural
may be used in the singular, and vice versa, all in accordance with ordinary
principles of English grammar.
ADDITIONAL RENT. The "ADDITIONAL RENT" shall mean any and all sums
and payments that this Lease requires Tenant to pay Landlord or any third party,
whether or not expressly designated as Additional Rent, except Fixed Rent.
AFFILIATE. An "AFFILIATE" of any specified Person shall mean any
other Person directly or indirectly Controlling or Controlled by or under direct
or indirect common Control with such specified Person. The term "AFFILIATED"
shall have the correlative meaning.
APPLICATIONS AND FILINGS. The "APPLICATIONS AND FILINGS" (or
"APPLICATIONS OR FILINGS" and other variations on such term) shall mean any
instrument, document, agreement, certificate, or filing (or amendment of any of
the foregoing): (a) necessary or appropriate for any Construction Work this
Lease allows, including any application for any utility service or hookup,
easement, covenant, condition, restriction, subdivision plat, or such other
instruments as Tenant may from time to time request in connection with such
Construction Work; (b) to enable Tenant to obtain any abatement, deferral, or
other benefit that may otherwise be reasonably available for Impositions; (c) to
enable Tenant from time to time to seek any Approval or to use and operate the
Premises in accordance with this Lease; (d) otherwise reasonably necessary and
appropriate to permit Tenant to realize the benefits of the Premises under this
Lease; or (f) that this Lease otherwise requires Landlord to sign for Tenant.
APPROVALS. The "APPROVALS" shall mean any and all licenses, permits
(including building, demolition, alteration, use, and special permits),
approvals, consents, certificates (including certificate(s) of occupancy),
rulings, variances, authorizations, or amendments to any of the foregoing as
shall be necessary or appropriate under any Law during the Term in connection
with the commencement, performance, or completion of any Construction Work, or
the zoning, rezoning (to the extent permitted by this Lease), use, occupancy,
maintenance, or operation of, the Premises.
APPURTENANCES. The "APPURTENANCES" shall mean, collectively,
Landlord's right, title and interest, if any, in and to (a) non-exclusive public
rights of way, public spaces, sidewalks and alleys, which are now or hereafter
used in connection with the Improvements and; (b) awards to be made in lieu of
any of the foregoing, and all unpaid awards or other proceeds for damages to the
Improvements by reason of the change of grade of any street, road or avenue.
BANKRUPTCY PROCEEDING. A "BANKRUPTCY PROCEEDING" shall mean any
bankruptcy, composition, insolvency, reorganization, or similar proceeding,
whether voluntary or involuntary, under Bankruptcy Law, including any assignment
for the benefit of creditors, appointment of a receiver or trustee, or any
similar proceeding.
BANKRUPTCY LAW. The "BANKRUPTCY LAW" shall mean ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ Code, and any other or successor state or federal bankruptcy, insolvency,
reorganization, moratorium, or similar law for the relief of debtors.
BID. A "BID" shall mean any present or future business improvement
district or similar district or program, proposed or actual, that includes or
may include any of the Premises.
BUSINESS DAY. A "BUSINESS DAY" shall mean any weekday on which banks
in the State are generally open to conduct regular banking business with bank
personnel.
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CASUALTY. A "CASUALTY" shall mean any damage or destruction
(including any damage or destruction for which insurance was not obtained or
obtainable) of any kind or nature, ordinary or extraordinary, foreseen or
unforeseen, affecting any or all improvements located on or constituting part of
the Premises.
CONCOURSE AREA A. The "CONCOURSE AREA A" shall mean a volume of
space located on "Level A" from the floor of "Level A" up to certain heights
therein, as indicated on EXHIBIT A (such volume of space constituting a portion
of Block 781, Lots 1 and 2, and of the subsurface of West 33rd Street), together
with a non-exclusive easement and right in Landlord's interest in (a) the
Concourse Area B (constituting the portion of the surface of ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇,
and of the subsurface of West 33rd Street) in common with the public and LIRR
for ingress and egress to pass in, over, through and across and use and
enjoyment of Concourse Area A, and (b) certain stairways, elevators and
escalators, as more particularly described on EXHIBIT A and now occupied, on a
non-exclusive basis by LIRR, NJT and Landlord.
CONCOURSE AREA B. The "CONCOURSE AREA B" shall mean a volume of
space located on "Level B" from the floor of "Level B" up to certain heights
therein, as indicated on EXHIBIT A (such volume of space constituting a portion
of Block 781, Lots 1 and 2), together with a non-exclusive easement and right in
Landlord's interest in (a) the Concourse Area A, in common with the public and
NJT, for ingress and egress to pass in, over, through and across and use and
enjoyment of Concourse Area B, (b) the so called "Hilton Passageway" and
"Seventh Avenue Corridor" (including the baggage corridor) shown on EXHIBIT A,
and (c) certain stairways, elevators and escalators, as more particularly
described on EXHIBIT A and now occupied, on a non-exclusive basis by Landlord
and NJT.
CONDEMNATION. A "CONDEMNATION" shall mean: (a) any temporary or
permanent taking of (or of the right to use or occupy) all or part of the
Premises by condemnation, eminent domain, or any similar proceeding; and/or (b)
any action by any Government not resulting in an actual transfer of an interest
in (or of the right to use or occupy) all or part of the Premises but creating a
right to compensation, such as a change in grade of any street upon which the
Premises abut.
CONDEMNATION AWARD. A "CONDEMNATION AWARD" shall mean the entire
amount of any award(s) paid or payable (whether or not in a separate award) to
either party after the Commencement Date because of or as compensation for any
Condemnation, including: (1) any award made for any improvements that are the
subject of the Condemnation; (2) the full amount paid or payable by the
condemning authority for the estate that is the subject of the Condemnation, as
determined pursuant to the Condemnation; (3) any interest payable on account of
such award; and (4) any other sums payable on account of such Condemnation,
including for any prepayment premium under any Mortgage.
CONDEMNATION EFFECTIVE DATE. For any Condemnation, the "CONDEMNATION
EFFECTIVE DATE" shall mean the first date when the condemning authority has
acquired title to or possession of any portion of the Premises that is subject
to the Condemnation.
CONSTRUCTION WORK. The "CONSTRUCTION WORK" shall mean any
alteration, addition, development, redevelopment, modification, expansion,
demolition, Restoration, or
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other construction or reconstruction work affecting any or all improvements from
time to time constituting part of the Premises, or the construction or
reconstruction of any new improvements, or repair of any existing improvements,
located on or at the Premises.
CONTROL. The term "CONTROL" shall mean the possession, directly or
indirectly, of either: (a) at least 51% direct or indirect ownership of a
Person; or (b) the power to direct or cause the direction of the management and
policies of such Person, whether by ownership of Equity Interests, by contract,
or otherwise.
CONTROL OF THE PREMISES. For any Leasehold Mortgagee, "CONTROL OF
THE PREMISES" shall mean any of the following: (1) possession of the Premises by
a receiver, trustee, or similar officer appointed in a judicial proceeding
commenced by such Leasehold Mortgagee; (2) possession as mortgagee-in-possession
pursuant to an affirmative written election to become a mortgagee-in-possession;
or (3) acquisition of the Leasehold Estate by a Successor Tenant through a
Foreclosure Event initiated by such Leasehold Mortgagee. For any Fee Mortgagee,
"CONTROL OF THE PREMISES" shall have the same meaning, referring instead to the
Fee Estate and a successor Landlord.
COUNTY. The "COUNTY" shall mean the county where the Premises are
located.
CPI. The "CPI" shall mean the United States Department of Labor,
Bureau of Labor Statistics "Consumer Price Index" for Urban Wage Earners and
Clerical Workers (CPI-W) published for New York - Northern New Jersey - Long
Island, NY-NJ-CT-PA, with a base of 1982-1984 = 100. If the CPI ceases to be
published, and there is no successor, then Landlord shall specify a reasonable
substitute index. The CPI for any date shall mean the CPI last published before
the calendar month that includes such date.
CPI ADJUSTMENT FACTOR. As of any date, the "CPI ADJUSTMENT FACTOR"
shall mean the greater of (a) 1.00 or (b) the CPI for such date divided by the
CPI for the Commencement Date.
DEFAULT. A "DEFAULT" shall mean any Monetary Default or Non-Monetary
Default. Every covenant of Tenant under this Lease, if not performed or complied
with by Tenant, shall give rise to a Default for which Tenant and (other than
for Tenant-Specific Defaults) each Leasehold Mortgagee shall have the cure
rights provided for in this Lease.
DEFAULT INTEREST. The "DEFAULT INTEREST" shall mean interest at an
annual rate equal to the lesser of: (a) 9.25% plus five (5) percent per annum or
(b) the highest rate, if any, permitted by law under the circumstances.
DEPOSITORY. A "DEPOSITORY" shall mean an Institutional Lender
designated by a Leasehold Mortgagee (or, if no Leasehold Mortgage exists, then
by Tenant). A Leasehold Mortgagee that is an Institutional Lender may designate
itself.
DISPUTE RESOLUTION DOCUMENTS. The "DISPUTE RESOLUTION DOCUMENTS"
shall mean all demands, notices, papers, pleadings, motions, and other documents
and other written communications relating to or arising from any legal or other
dispute resolution proceeding of
4
any kind relating to this Lease or the Premises (including any litigation,
arbitration, mediation, appraisal, or any other dispute resolution proceeding or
procedure of any kind).
ENVIRONMENTAL LAW. An "ENVIRONMENTAL LAW" shall mean any Law related
to environmental conditions on, under, or about the Premises, or relating to
soil, air and ground water conditions at, under, in, or upon the Premises, or
governing the use, generation, storage, transportation, disposal, release,
clean-up or control of Hazardous Substances in, under, on, at, to, or from the
Premises. Environmental Law shall also include any and all federal, state and
local environmental, health or safety laws, statutes, ordinances, codes,
regulations, rules of common law, orders, decrees or any other requirement of
any Government, as now or at any time hereafter are in effect, relating to or
imposing liability or standards of conduct concerning gasoline, petroleum and
other petroleum by-products, asbestos (including any product or construction
material containing sufficient asbestos to be subject to such Laws) explosives,
PCBs, radioactive materials or any "hazardous" or "toxic" material, substance or
waste that is defined by those or similar terms or is regulated as such under
any statute, law, ordinance, rule or regulation of any Government having
jurisdiction over the Premises or any portion thereof or its use, including any
material, substance or waste which is: (i) defined as a "hazardous substance"
under Section 311 of the Water Pollution Control Act (33 U.S.C. ss. 1317), as
amended; (ii) defined as a "hazardous waste" under Section 1004 of The Resource
Conservation and Recovery Act of 1976, 42 U.S.C. ss. 6901, et seq., as amended;
(iii) defined as a "hazardous substance" or "hazardous waste" under Section 101
of The Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Reauthorization Act of 1986, 42 U.S.C. ss.
9601 et seq. or any so-called "superfund" or "superlien" law, including the
judicial interpretations thereof; (iv) defined as a "pollutant" or "contaminant"
under 42 U.S.C.A. ss. 9601(33); (v) defined as "hazardous waste" under 40 C.F.R.
Part 260; (vi) defined as a "hazardous chemical" under 29 C.F.R. Part 1910; or
(vii) subject to any other Law or other past (and still in effect), present, or
future requirement of any Government regulating, relating to or imposing
obligations, liability or standards of conduct concerning the protection of
human health, plant life, animal life, natural resources, property or the
enjoyment of life or property free from the presence in the environment of any
solid, liquid, gas, odor or any form of energy from whatever source.
EQUIPMENT. "EQUIPMENT" shall mean, collectively, all fixtures and
personal property incorporated in or attached to and used or usable in the
operation of the Improvements including all machinery, apparatus, heating,
lighting, plumbing, ventilating, air cooling and air conditioning equipment;
retail signage; ticket offices; elevators, escalators and hoists; washroom,
toilet and lavatory equipment; communication systems and public address
equipment; fire prevention and extinguishing equipment; and all additions
thereto and replacements thereof. Equipment shall not include any Transportation
Infrastructure.
EQUITY INTEREST. An "EQUITY INTEREST" shall mean all or any portion
of any direct or indirect equity or ownership interest(s) (whether stock,
partnership interest, membership interest, or other interest of an ownership or
equity nature) in any entity at any tier of ownership that directly or
indirectly owns or holds any ownership or equity interest in the Fee Estate or
the Leasehold Estate, as applicable.
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ESTOPPEL CERTIFICATE. An "ESTOPPEL CERTIFICATE" shall mean a
statement, addressed to the other party to this Lease or as such other party
shall direct, containing statements to the following effect (identifying in
reasonable detail any exceptions that may exist at the time), as requested by
either party: (a) this Lease has not been amended, constitutes the entire
agreement between the parties relating to the Premises, and is in full force and
effect; (b) neither party is, to the best of the signer's knowledge, in default
under this Lease and to the best of the signer's knowledge no facts or
circumstances exist that, with the passage of time or the giving of notice or
both, would constitute defaults under this Lease by either party; (c) Tenant has
paid all Rent that has accrued to date; (d) the signing party is not, to the
best of its knowledge, entitled to any defenses, offsets, claims, counterclaims
or rights or recoupment against its obligations under this Lease; and (e) the
current Fixed Rent, if not ascertainable from the text of this Lease.
EXCISED OBLIGATIONS. The "EXCISED OBLIGATIONS" shall mean the
following obligations under this Lease or any New Lease: (a) all Tenant-Specific
Obligations; and (b) during a period of 30 days from any Foreclosure Event under
a Leasehold Mortgage or New Lease Delivery Date, any covenant to use or operate
the Premises for any purpose.
EXCLUDED PREMISES. The "EXCLUDED PREMISES" shall mean, collectively,
Landlord's Equipment, Landlord's Air Rights, Landlord's Improvements, Trackage
Rights, Transportation Infrastructure, the Vehicular/Pedestrian Passageway, and
the Structure.
EXPIRATION DATE. The "EXPIRATION DATE" shall mean the date when this
Lease terminates or expires in accordance with its terms, whether on the
Scheduled Expiration Date or by Landlord's exercise of remedies for an Event of
Default or otherwise.
▇▇▇▇▇▇ BUILDING. The "▇▇▇▇▇▇ BUILDING" shall mean the post office
building located on the west side of 8th Avenue across from Pennsylvania Station
and commonly known as the "▇▇▇▇▇▇ Building," which has been the subject of
various development proposals as a railroad station.
FEE DEBT SERVICE. The "FEE DEBT SERVICE" shall mean all payments due
and payable from time to time under any Fee Mortgage, including principal,
interest, late charges, prepayment premium, costs of collection, reimbursement
of protective advances, and any and all other sums secured by any Fee Mortgage,
whether payable upon maturity or earlier, including upon acceleration.
FEE ESTATE. The "FEE ESTATE" shall mean Landlord's fee estate in the
Premises or any part of the Premises and any direct or indirect interest in such
fee estate, including Landlord's reversionary interest in the Premises after the
Expiration Date.
FEE MORTGAGE. A "FEE MORTGAGE" shall mean any Mortgage: (a) that
encumbers all or part of the Fee Estate; (b) that complies with this Lease; (c)
a copy of which (recorded or unrecorded) is promptly after execution delivered
to Tenant and all Leasehold Mortgagee(s) with a certification by the Fee
Mortgagee that the copy is accurate and stating the name and Notice address of
such Fee Mortgagee; and (d) that is held by a Fee Mortgagee that is an
Institutional Lender and not a Prohibited Person.
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FEE MORTGAGEE. A "FEE MORTGAGEE" shall mean any Mortgagee holding a
Fee Mortgage.
FF&E. The "FF&E" shall mean all movable furniture, fixtures,
equipment, and personal property (excluding Equipment and Transportation
Infrastructure) that may be removed from the Premises without material damage
thereto and without adversely affecting: (a) the structural integrity of the
Premises; (b) any electrical, plumbing, mechanical, or other system of the
Premises; (c) the present or future operation of any such system; or (d) the
present or future provision of any utility service to the Premises. FF&E
includes items such as factory equipment, furniture, fixtures and equipment,
telephone, telecommunications and facsimile transmission equipment, point of
sale equipment, televisions, radios, and computer systems, excluding any
Transportation Infrastructure.
FORECLOSURE EVENT. A "FORECLOSURE EVENT" shall mean any transfer of
title to any estate as the result of any: (1) judicial or nonjudicial
foreclosure; (2) trustee's sale; (3) deed, transfer, assignment, or other
conveyance in lieu of foreclosure; (4) other similar exercise of rights or
remedies under any Mortgage; or (5) transfer by operation of or pursuant to any
Bankruptcy Proceeding (including an auction or plan of reorganization pursuant
to any Bankruptcy Proceeding), in each case ("1" through "5") whether the
transferee is a Mortgagee, a party claiming through a Mortgagee, or a third
party.
FRANCHISE AGREEMENT. The "FRANCHISE AGREEMENT" shall mean the
Certificate, dated October 9, 1902, originally from the Board of Rapid Transit
Railroad Commissioners for The City of New York to the Pennsylvania, New York
and Long Island Rail Road Company, as the same has been or may be amended or
modified from time to time.
GOVERNMENT. A "GOVERNMENT" shall mean each and every governmental
authority, quasi-governmental body, department, agency, bureau, or other entity
or instrumentality having or claiming jurisdiction over the Premises, including
the federal government of the United States, the State government and any
subdivisions and municipalities thereof, including the County government, and
all other applicable governmental authorities and subdivisions thereof.
"Government" shall also include any planning commission, board of standards and
appeals, department of buildings, and city council having or claiming
jurisdiction over the Premises. To the extent that Landlord or Landlord's
construction department or equivalent division of Landlord has authority to
issue building permits or otherwise regulate Construction Work within the
Premises, Landlord shall solely in such capacity also constitute a Government.
HAZARDOUS SUBSTANCES. The term "HAZARDOUS SUBSTANCES" includes
flammable substances, explosives, radioactive materials, asbestos,
polychlorinated biphenyls, chemicals known to cause cancer or reproductive
toxicity, pollutants, contaminants, hazardous wastes, medical wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic by, or otherwise regulated or
controlled under, Environmental Law.
HAZARDOUS SUBSTANCES DISCHARGE. A "HAZARDOUS SUBSTANCES DISCHARGE"
shall mean any deposit, spill, discharge, or other release of Hazardous
Substances that occurs at or
7
from the Premises, or into the Premises, or that arises at any time from the
use, occupancy, or operation of the Premises or any activities conducted therein
or any adjacent or nearby real property, or resulting from the seepage, leakage,
or other transmission of Hazardous Substances from other real property to the
Premises, whether or not caused by a party to this Lease and whether occurring
before or after the Commencement Date.
IMMATERIAL LOSS. An "IMMATERIAL LOSS" shall mean any Casualty or
Condemnation if: (a) Restoration is reasonably feasible; and (b) the cost to
Restore would not exceed $500,000 times the CPI Adjustment Factor.
IMPOSITIONS. The "IMPOSITIONS" shall mean all general and special
real estate taxes (including any taxes on FF&E, sales taxes, use taxes, and the
like), BID payments, assessments, water and sewer rents, rates and charges,
excises, levies, license and permit fees, fines, penalties and other
governmental charges and any interest or costs with respect thereto, charges for
any easement or agreement benefiting the Premises (except to the extent such
agreement or easement is not a Permitted Exception, unless made by Landlord at
Tenant's request), and charges for public and private utilities (including gas,
electricity, light, heat, air conditioning, power and telephone and other
communication services), general and special, ordinary and extraordinary,
foreseen and unforeseen, of any kind and nature whatsoever which at any time
before or during the Term and applicable to the Term or any part thereof may be
assessed, levied, confirmed, imposed upon, or grow or become due and payable out
of or in respect of, or charged with respect to or become a lien on, the
Premises, or the sidewalks or streets in front of or adjoining the Premises, or
any vault, passageway or space in, over or under such sidewalk or street, or any
other appurtenances of the Premises, or any FF&E, Equipment or other facility
used in the operation thereof, or the rent or income received therefrom, or any
use or occupancy thereof, or the Rent, or any document to which Tenant is a
party creating or transferring an interest or estate in the Premises (other than
on account of any actions or omissions of Landlord). The "IMPOSITIONS" shall
not, however, include any of the following, all of which Landlord shall pay
before delinquent or payable only with a penalty: (a) any franchise, income,
excess profits, estate, inheritance, succession, transfer, gift, corporation,
business, capital levy, or profits tax, or license fee, of Landlord; (b) the
incremental portion of any of the items listed in this paragraph that would not
have been levied, imposed or assessed but for any sale or other direct or
indirect transfer of the Fee Estate or of any Equity Interest in Landlord during
the Term; (c) any items listed in this paragraph that would not have been
payable but for any act or omission of Landlord; (d) any items listed in this
paragraph that are levied, assessed, or imposed against the Premises during the
Term based on the recapture or reversal of any previous tax abatement or tax
subsidy, or compensating for any previous tax deferral or reduced assessment or
valuation, or correcting a miscalculation or misdetermination, relating to any
period(s) before the Commencement Date; and (e) interest, penalties, and other
charges for items "a" through "d." Notwithstanding the foregoing, (1) Tenant
shall be responsible for and shall pay any tax on Rent and any occupancy or rent
tax that accrues during the Term and (2) if at any time during the Term the
method of taxation prevailing at the Commencement Date shall be altered so that
any new tax, assessment, levy (including any municipal, state or federal levy),
imposition, or charge, or any part thereof, shall be measured by or be based in
whole or in part upon the Premises and shall be imposed upon Landlord, then all
such new taxes, assessments, levies, impositions, or charges, or the part
thereof to the extent that they are so measured or based, shall be deemed to be
included within the term "Impositions," to the extent that such
8
Impositions would be payable if the Premises were the only property of Landlord
subject to such Impositions, and Tenant shall pay and discharge the same as this
Lease requires for the payment of Impositions, except to the extent that such
tax, assessment, or levy referred to in item "2" is not included in the
definition of "Impositions" under the preceding sentence.
IMPROVEMENTS. The "IMPROVEMENTS" shall mean, collectively, the
Concourse Area A and Concourse Area B and all facilities, structures, and other
improvements of every kind, nature and description and used in connection
therewith and now located or hereafter erected, constructed or placed upon or
within Concourse Area A and/or Concourse Area B and used in connection therewith
and all fixtures constituting a part thereof, and all alterations, changes and
additions thereto.
INDEMNIFY. Wherever this Lease states that any Indemnitor shall
"INDEMNIFY" any Person from, against, or for a particular matter, this shall
mean the Indemnitor shall indemnify the Indemnitee and defend and hold the
Indemnitee harmless from and against any and all loss, cost, claims, liability,
penalties, judgments, damages or other injury, detriment, or expense (including
Legal Costs, interest and penalties) reasonably incurred or suffered by the
Indemnitee on account of the matter that is the subject of such indemnification
or in enforcing the Indemnitor's indemnity.
INDEMNITEE. An "INDEMNITEE" shall mean: (a) a party entitled to be
Indemnified under this Lease and (b) its partners, members, officers, directors,
agents, employees, and mortgagees).
INDEMNITOR. An "INDEMNITOR" shall mean a party that agrees to
Indemnify any other Person.
INSTITUTIONAL LENDER. An "INSTITUTIONAL LENDER" shall mean: (1) a
bank (state, federal or foreign), trust company (in its individual or trust
capacity), insurance company, credit union, savings bank (state or federal),
pension, welfare or retirement fund or system, real estate investment trust, a
nationally recognized investment bank, a finance subsidiary of a Fortune 500
company (such as AT&T Capital Corporation or General Electric Capital
Corporation), real estate mortgage investment conduit, or securitization trust;
(2) any issuer of collateralized mortgage obligations or any similar investment
entity (provided that such issuer or other entity is publicly traded or was or
is sponsored by an entity that otherwise constitutes an Institutional Lender or
has a trustee that is, or is an Affiliate of, any entity that otherwise
constitutes an Institutional Lender); (3) any Person that is a wholly owned
subsidiary of or is a combination of any one or more of the foregoing Persons;
or (4) any of the foregoing when acting as trustee for other lender(s) or
investor(s), whether or not such other lender(s) or investor(s) are themselves
Institutional Lenders.
INSUBSTANTIAL CONDEMNATION. An "INSUBSTANTIAL CONDEMNATION" shall
mean any Condemnation except: (1) a Substantial Condemnation or (2) a Temporary
Condemnation.
LANDLORD. The "LANDLORD" initially shall mean the Landlord named in
the opening paragraph of this Lease. After every transfer of the Fee Estate,
"Landlord" shall mean only the owner(s) of the Fee Estate at the time in
question.
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LANDLORD'S AIR RIGHTS. The "LANDLORD'S AIR RIGHTS" shall mean all
unused development rights and so called "air rights" appurtenant to and
otherwise used in connection with Concourse Area A and/or Concourse Area B and,
to the extent of Landlord's interest therein, the Excluded Premises.
LANDLORD'S EQUIPMENT. The "LANDLORD'S EQUIPMENT" shall mean,
collectively, all fixtures and personal property incorporated in or attached to
and used or usable in the operation of all shop, engine house and repair
facilities, track machinery and equipment (including machinery and equipment
located in yards or terminals for the repair and servicing of trains, cars or
locomotives), electric transmission lines, catenary, water chilling equipment,
and all other machinery, apparatus, devices, motors, dynamos, engines,
compressors, pumps, boilers and burners; all ties, rails, switches and other
track material, track laying and servicing material, all signals system
apparatus, including interlockers, sidings, turn outs, turntables, fences,
pipes, tanks and fittings.
LANDLORD'S IMPROVEMENTS. The "LANDLORD'S IMPROVEMENTS" shall mean,
collectively, all of Landlord's right, title and interest in, to and under the
tracks and platforms situated below Concourse Area A, Concourse Area B and the
▇▇▇▇▇▇ Building (such platforms constituting a portion of ▇▇▇ ▇▇▇, ▇▇▇▇ ▇ and 2,
and of the subsurface of ▇▇▇ ▇▇▇, ▇▇▇ ▇▇, and of the subsurfaces of Seventh
Avenue, West 32nd Street, West 33rd Street and Eighth Avenue).
LAWS. The "LAWS" shall mean all laws, ordinances, requirements,
orders, proclamations, directives, rules, and regulations of any Government
affecting the Premises or this Lease in any way, including the development,
improvement, alteration, use, maintenance, taxation, operation, or occupancy of,
or environmental conditions affecting, the Premises or any part of the Premises,
or relating to any Impositions, or otherwise relating to this Lease or the
parties' rights and remedies under this Lease, or any Transfer of any of the
foregoing, whether in force at the Commencement Date or passed, enacted or
imposed at some later time, subject in all cases, however, to any applicable
waiver, variance, or exemption.
LEASEHOLD ESTATE. The "LEASEHOLD ESTATE" shall mean Tenant's
leasehold estate and all of Tenant's rights and privileges under this Lease,
upon and subject to all the terms and conditions of this Lease, and any part of
such leasehold estate and any direct or indirect interest in such leasehold
estate.
LEASEHOLD IMPAIRMENT. A "LEASEHOLD IMPAIRMENT" shall mean any of the
following, whether expressly provided for in this Lease or resulting from any
future agreement between Landlord and Tenant or from the unilateral action of
either of them: (a) cancellation, termination, surrender, acceptance of
surrender, waiver, abandonment, amendment, modification, severance, or rejection
of this Lease, in whole or in part; (b) subordination of this Lease to any Fee
Mortgage or other encumbrance on the Fee Estate; (c) execution or modification
of any encumbrance (prior to this Lease and the Leasehold Estate) affecting the
Fee Estate; (d) Tenant's consent to: (i) any of the foregoing or (ii) any other
matter of a material nature that requires Tenant's consent under this Lease; or
(e) either party's delivery of any notice to the other that impairs or may
impair, or purports to limit the exercise of, any Leasehold Mortgagee's rights
and remedies under its Leasehold Mortgage or this Lease.
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LEASEHOLD MORTGAGE. A "LEASEHOLD MORTGAGE" shall mean any Mortgage:
(a) that encumbers the Leasehold Estate or any interest in the Leasehold Estate;
(b) a copy of which (recorded or unrecorded) is promptly after execution
delivered to Landlord, with a certification by the Leasehold Mortgagee that the
copy is accurate and stating the name and Notice address of the Leasehold
Mortgagee; and (c) that is held by a Leasehold Mortgagee that is an
Institutional Lender and not a Prohibited Person.
LEASEHOLD MORTGAGE BALANCE. The "LEASEHOLD MORTGAGE BALANCE" means
the total amount of all sums secured by any and all Leasehold Mortgage(s),
including principal, interest, default interest, late charges, reimbursement of
protective advances, yield maintenance premium, prepayment fee, and all other
amounts whatsoever secured by any such Leasehold Mortgage.
LEASEHOLD MORTGAGEE. A "LEASEHOLD MORTGAGEE" shall mean a Mortgagee
holding a Leasehold Mortgage. If a Leasehold Mortgagee assigns its Leasehold
Mortgage or changes its address, then Landlord shall not be bound by the
assignment or change unless and until the affected Leasehold Mortgagee(s)
has/have given Landlord Notice of the name and address of the holder of the new
Leasehold Mortgage.
LEASEHOLD MORTGAGEE'S CONSENT. A "LEASEHOLD MORTGAGEE'S CONSENT" for
any matter that expressly refers to "Leasehold Mortgagee's Consent" shall mean
Leasehold Mortgagee's prior written consent to such matter. If this Lease
requires Leasehold Mortgagee's Consent for a particular matter, then such
Leasehold Mortgagee may withhold consent for any reason or no reason (i.e., in
its sole, absolute, and unreviewable discretion) except where this Lease or the
Leasehold Mortgage (or any loan document secured by the Leasehold Mortgage)
expressly states otherwise. When no Leasehold Mortgagee exists, references to
Leasehold Mortgagee's Consent shall be disregarded. Nothing in this definition
shall require Landlord to obtain (or to confirm that Tenant obtained) any
consent from any Leasehold Mortgagee except where this Lease expressly requires
"Leasehold Mortgagee's Consent."
LEASEHOLD MORTGAGEE'S CURE. "LEASEHOLD MORTGAGEE'S CURE" shall mean,
subject to and in accordance with this Lease, any Leasehold Mortgagee's: (a)
actions taken to cure a Default, whether or not successful, and/or (b) cure of
such Default.
LEASEHOLD MORTGAGEE'S CURE RIGHTS. "LEASEHOLD MORTGAGEE'S CURE
RIGHTS" shall mean all rights of Leasehold Mortgagee(s) under this Lease to
effectuate any Leasehold Mortgagee's Cure.
LEGAL COSTS. The "LEGAL COSTS" of any Person shall mean all
reasonable costs and expenses such Person incurs in any legal proceeding (or
other matter for which such Person is entitled to be reimbursed for its Legal
Costs), including reasonable attorneys' fees, court costs, and expenses at the
trial and any appellate level, and in or as a result of any Bankruptcy
Proceedings.
LIABILITY INSURANCE. The "LIABILITY INSURANCE" shall mean general
comprehensive public liability insurance against claims for personal injury,
death, or property damage occurring
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upon, in, or about the Premises or adjoining streets and passageways, providing
coverage for a combined single limit of $100 million for any one accident or in
the aggregate.
LIRR. The "LIRR" shall mean the Long Island Rail Road Company, a
body corporate and politic constituting a public benefit corporation of the
State of New York and having an office at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
LOSS. A "LOSS" shall mean any Casualty or Condemnation.
LOSS PROCEEDS. The "LOSS PROCEEDS" shall mean Condemnation Award(s)
and/or Property Insurance Proceeds.
MAJOR CONSTRUCTION WORK. The term "MAJOR CONSTRUCTION WORK" shall
mean any Construction Work whose estimated cost exceeds $1,000,000 times the CPI
Adjustment Factor.
MEMORANDUM OF LEASE. A "MEMORANDUM OF LEASE" shall mean a memorandum
of this Lease, in recordable form, setting forth the following provisions of
this Lease: (a) information required by statute; (b) restrictions on Transfers,
zoning lot mergers, and Fee Mortgages, if any; and (c) such other information as
the parties hereto agree to set forth therein.
MONETARY DEFAULT. A "MONETARY DEFAULT" shall mean any failure by
Tenant to: (1) pay, when and as this Lease requires, any Rent, including
Additional Rent, whether to Landlord or to a third party, subject in all
applicable cases to Tenant's Right of Contest; (2) pay as they become due all
insurance premiums that this Lease requires Tenant to pay; or (3) properly apply
any Loss Proceeds or other money, if any, that this Lease requires Tenant to
apply in a particular manner or for a particular purpose.
MORTGAGE. A "MORTGAGE" shall mean any mortgage, deed of trust,
security deed, contract for deed, deed to secure debt, or other voluntary real
property (including leasehold) security instrument(s) or agreement(s) intended
to grant real property (including leasehold) security for any obligation
(including a purchase-money or other promissory note) encumbering the Leasehold
Estate or the Fee Estate, as entered into, renewed, modified, consolidated,
increased, decreased, amended, extended, restated, assigned, collaterally
assigned, or supplemented from time to time, unless and until paid, satisfied,
and discharged of record. A Mortgage may be either a Fee Mortgage or a Leasehold
Mortgage or both.
MORTGAGEE. A "MORTGAGEE" shall mean a holder of any Mortgage and its
successors and assigns.
MORTGAGEE PROTECTIONS. The "MORTGAGEE PROTECTIONS" shall mean, for
any Mortgagee, all rights, protections, and privileges of such Mortgagee under
this Lease, including: (1) any right to receive Notices and/or to cure defaults
(including, in the case of a Leasehold Mortgagee, all Leasehold Mortgagee's Cure
Rights); (2) in the case of a Leasehold Mortgagee, any requirement for Leasehold
Mortgagee's Consent and all provisions regarding a New Lease; and (3) all other
rights, remedies, protections, privileges, and powers of such Mortgagee and
anyone claiming through or under such Mortgagee, including (in the case of any
Leasehold Mortgagee) a New Tenant and any Successor Tenant.
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NEW LEASE. A "NEW LEASE" shall mean a new lease of the Premises,
effective as of (or retroactively to) the Expiration Date of this Lease, for the
remainder of the Term of this Lease, through and including the Scheduled
Expiration Date, considered as if this Lease had not been terminated, with New
Tenant, on all the same terms and provisions of this Lease, and in the same form
as this Lease, whether entered into pursuant to this Lease or by agreement
between Landlord and a New Tenant. Any New Lease shall include all rights and
privileges of Tenant under this Lease, but shall not include any Excised
Obligations or any Leasehold Impairments made without Leasehold Mortgagee's
Consent and shall be subject to all matters which this Lease is subject to
including, without limitation, the Reserved Rights. Any New Lease or a
memorandum thereof shall be in recordable form, and shall include all Mortgagee
Protections for the benefit of New Tenant's Leasehold Mortgagee(s).
NEW LEASE DELIVERY DATE. A "NEW LEASE DELIVERY DATE" shall mean the
date when Landlord and New Tenant enter into and deliver a New Lease.
NEW LEASE OPTION PERIOD. A "NEW LEASE OPTION PERIOD" shall mean, if
any Expiration Date occurs (except because of (1) the Scheduled Expiration Date;
(2) a Casualty Termination; or (3) a Substantial Condemnation), a period that
begins on such Expiration Date and ends 90 days after Landlord has Notified all
Leasehold Mortgagee(s) of such Expiration Date. The New Lease Option Period
shall be tolled and extended: (x) during any Bankruptcy Proceeding affecting
Landlord; (y) whenever Leasehold Mortgagee's right to require Landlord to enter
into a New Lease is otherwise materially restricted or impaired, other than
because of Leasehold Mortgagee's acts or omissions; and (z) for 30 days after
either "x" or "y." All Leasehold Mortgagees, considered as a group, shall have
only a single New Lease Option Period. No individual Leasehold Mortgagee shall
have a separate or sequential New Lease Option Period.
NEW TENANT. A "NEW TENANT" shall mean the Leasehold Mortgagee that
requests (and/or obtains) a New Lease or such other Tenant under a New Lease as
such Leasehold Mortgagee shall determine (but excluding the Tenant originally
named in this Lease and its Affiliates), all as designated by such Leasehold
Mortgagee by Notice to Landlord. Any New Tenant shall have all the same rights
and obligations as Tenant under this Lease, subject to: (a) the definition of a
New Lease; and (b) the Nonrecourse Clause.
NJT. The "NJT" shall mean New Jersey Transit Corporation, a public
instrumentality of the State of New Jersey.
NON-MONETARY DEFAULT. A "NON-MONETARY DEFAULT" shall mean occurrence
of any of the following, except a Monetary Default: (1) any substantial breach
by Tenant of its obligations under this Lease; (2) Tenant's failure to comply
with material restrictions or prohibitions in this Lease; or (3) any other event
or circumstance that, with passage of time or giving of notice, or both, or
neither, would constitute an Event of Default.
NOTICE. A "NOTICE" shall mean any approval, consent, demand,
designation, election, notice, or request, including one relating to a Default,
alleged Default, Event of Default, or termination (or alleged termination) of
this Lease, that any party gives regarding this Lease.
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Notices shall be delivered, and shall become effective, only in accordance with
the Section of this Lease entitled "Notices."
NOTIFY. The word "NOTIFY" shall mean give a Notice.
PERMITTED EXCEPTIONS. The "PERMITTED EXCEPTIONS" shall mean all: (1)
title exceptions affecting the Fee Estate and constituting exceptions in
Tenant's leasehold policy of title insurance covering the Leasehold Estate; (2)
title exceptions (including Subleases) caused by Tenant's acts or omissions,
consented to or requested by Tenant in writing (with Leasehold Mortgagee's
Consent), or resulting from Tenant's failure to comply with this Lease; (3)
Applications and Filings entered into at Tenant's request (with Leasehold
Mortgagee's Consent); (4) terms and provisions of either this Lease or a New
Lease; and (5) additional matters listed on EXHIBIT D.
PERSON. A "PERSON" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, limited liability company, Government, or other
entity. (The foregoing definition does not limit any Transfer restrictions in
this Lease.)
POST-REJECTION OFFSET AMOUNT. A "POST-REJECTION OFFSET AMOUNT" shall
mean, after rejection of this Lease in a Bankruptcy Proceeding affecting
Landlord, the amount of any offset that Tenant may claim under 11 U.S.C. ss.
365(h)(1)(B) or any similar statute.
PRIME RATE. The "PRIME RATE" shall mean the prime rate or equivalent
"base" or "reference" rate for corporate loans that, at Landlord's election, by
Notice to Tenant, is from time to time: (a) published in the Wall Street
Journal; (b) announced by any large United States "money center" commercial bank
Tenant designates; or (c) if such rate is no longer so published or announced,
then a reasonably equivalent rate published by an authoritative third party that
Landlord reasonably designates. Notwithstanding anything to the contrary in this
paragraph, the Prime Rate shall never exceed a rate of interest that would
otherwise require any party to pay interest above the highest rate legally
permitted under the circumstances.
PROHIBITED LIENS. A "PROHIBITED LIEN" shall mean any mechanic's,
vendor's, laborer's or material supplier's statutory lien or other similar lien
arising from work, labor, services, equipment, or materials supplied, or claimed
to have been supplied, to Tenant or any Subtenant (or anyone claiming through
either), which lien attaches (or may attach upon termination of this Lease) to
the Fee Estate or any Excluded Premises.
PROHIBITED PERSON. A "PROHIBITED PERSON" shall mean any Person that
is: (a) immune from civil process whether automatically or at the election of
such Person; (b) Controlled by a convicted felon or by any Person whose business
reputation is such that in either Landlord's or Tenant's reasonable
determination a reasonable and typical Institutional Lender would, because of
such business reputation, refuse to make a substantial loan to such Person; (c)
more likely than not to cause a Rating Agency to object to having such Person or
its Affiliate as the borrower under a securitized loan or to determine that any
such loan does not meet Rating Agency Requirements; (d) debarred from obtaining
federal, state, or municipal contracts; or (e) not subject to the jurisdiction
of the courts of the State. Notwithstanding the above, in no event
14
shall (i) any successor in interest to Landlord by reason of the sale, transfer,
conveyance, assignment (by operation by laws or otherwise), merger,
consolidation, amalgamation or other disposition, directly or indirectly, by
operation of law or otherwise, of all or substantially all of the business and
assets of Landlord or the stock of Landlord, (ii) the United States Department
of Transportation or (iii) any agency, instrumentality or quasi-governmental
entity thereof including, without limitation, the Federal Railroad
Administration; in any case, be or be deemed to be a Prohibited Person.
PROPERTY INSURANCE. The "PROPERTY INSURANCE" shall mean property
insurance against all loss customarily included under so called "All Risk"
policies including flood, earthquake, vandalism, and malicious mischief, boiler
and machinery, and such other insurable hazards as, under good insurance
practices, from time to time are insured against for other property and
buildings similar to the Premises in nature, use, location, height, and type of
construction. The amount of such "All Risk" insurance shall be not less than one
hundred percent (100%) of the replacement cost value of the Premises, calculated
as if the Premises could be fully restored at its present location. Each such
insurance policy shall contain an agreed amount and replacement cost value
endorsement and shall cover all tenant improvements and betterments comprising a
portion of the Premises. If the insurance required under this paragraph is not
obtained by blanket insurance policies, the insurance policy shall be endorsed
to also provide guaranteed building replacement cost.
PROPERTY INSURANCE PROCEEDS. The "PROPERTY INSURANCE PROCEEDS" shall
mean net proceeds (after reasonable costs of adjustment and collection,
including Legal Costs) of Property Insurance, when and as received by Landlord,
Tenant, Depository, or any Mortgagee.
RATING AGENCY REQUIREMENTS. The "RATING AGENCY REQUIREMENTS" shall
mean any: (a) requirements of any rating agency that rates or has rated any
securities issued pursuant to a securitization that includes any interest in any
indebtedness secured by a Leasehold Mortgage; or (b) standards or criteria that
any such rating agency requires to be satisfied for any such securities to
obtain or maintain any specified rating or to maximize the face amount of any
securities qualifying for a particular rating.
RENT. The "RENT" shall mean Fixed Rent and Additional Rent.
RESERVED RIGHTS. The "RESERVED RIGHTS" shall mean the rights of
Landlord and of the Landlord's invitees, licensees, and other designees to enter
the Premises for the following purposes, provided that such activities do not
unreasonably interfere with the use and operation of the Premises: (a) to
install, operate, maintain, repair, replace, expand, contract, and otherwise
modify any Excluded Premises and perform any Construction Work; (b) in the
course of any operation, maintenance, repair, replacement, expansion,
contraction, or other modification of any railroad and/or building system; and
(c) to fulfill any of Landlord's obligations under any agreement, instrument or
document with NJT and/or LIRR.
RESTORATION. A "RESTORATION" shall mean, upon a Casualty or an
Insubstantial Condemnation, the safeguarding, clearing, repair, restoration,
alteration, replacement, rebuilding, and reconstruction of the damaged or
remaining improvements located at the Premises as nearly as practicable to their
class, condition, quality, and value immediately before such Loss, with
15
such alterations (including demolition) as Tenant shall make in conformity with
this Lease, subject to any changes in Laws that would limit reconstruction.
RESTORATION FUNDS. The "RESTORATION FUNDS" shall mean any Loss
Proceeds (and deposits by Tenant) to be applied to Restoration.
RESTORE. "RESTORE" shall mean accomplish a Restoration.
RETAIL OPERATIONS. The "RETAIL OPERATIONS" shall mean, in accordance
with past practices: (a) operation of the retail stores that are located in the
Premises and serve the passengers and other customers using Pennsylvania
Station; and (b) performance of such actions and provision of such services to
the tenants of such retail stores as the leases of such retail stores require.
RPAPL. The "RPAPL" shall mean New York Real Property Actions and
Proceedings Law.
SCHEDULED EXPIRATION DATE. The "SCHEDULED EXPIRATION DATE" shall
mean June 14, 2032.
SENIOR. The term "SENIOR," when referring to multiple Mortgage(s),
shall mean the most senior in lien.
SINGLE PURPOSE ENTITY. A "SINGLE PURPOSE ENTITY" shall mean an
entity that: (a) has no assets, property, or activities (except its interest in
the Premises and any directly related assets, property, and activities) and no
liabilities except those directly arising from its interest in the Premises or
as permitted or required by this Lease; (b) maintains complete, separate, and
accurate books, records, and accounts relating solely to its own affairs; (c)
does not commingle its accounts, funds, or money with those of any other person;
(d) does not cause or permit its affairs to be combined, to any degree, with
those of any other entity; (e) holds itself out as being an independent and
separate entity for all purposes, with no liability for the debts or obligations
of any other person; (f) does not cause or permit any other person to hold
itself out as being responsible for the debts and obligations of such other
person; and (g) otherwise in all material respects is and remains a
single-purpose entity in compliance with all then-applicable standards and
criteria of all of Fitch, Inc.; ▇▇▇▇▇'▇ Investors Service; and Standard &
Poor's.
STATE. The "STATE" shall mean the state or commonwealth where the
Premises are located.
STRUCTURE. The "STRUCTURE" of the Premises shall mean only the
foundation, footings, concrete subfloors, structural supports, load-bearing
walls, and roof support system of or surrounding the Premises.
SUBLEASE. A "SUBLEASE" shall mean any sublease of the Premises or
any part of the Premises, or any other agreement or arrangement (including a
license, occupancy, concession, or management agreement) made by Tenant granting
any third party the right to occupy, use or possess all or any portion of the
Premises, together with any subsublease or any further level of subletting of
the Premises or any part of the Premises, as any of the foregoing
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may be assigned, extended, renewed, or amended from time to time. Any reference
to Subleases in this Lease shall not be deemed to limit, diminish, impair, or
waive any restrictions on Subleases set forth in this Lease.
SUBRENT. The "SUBRENT" shall mean all subrents and other money due
and payable by Subtenants under Subleases.
SUBSTANTIAL CONDEMNATION. A "SUBSTANTIAL CONDEMNATION" shall mean
any Condemnation that (a) takes the entire Premises; or (b) in Tenant's
reasonable determination (with Leasehold Mortgagee's Consent) renders the
remaining Premises Uneconomic.
SUBTENANT. A "SUBTENANT" shall mean any person having rights of
occupancy, use, or possession under a Sublease.
SUCCESSOR TENANT. A "SUCCESSOR TENANT" shall mean: (1) any assignee,
purchaser, or transferee of the Leasehold Estate through a Foreclosure Event,
including a Leasehold Mortgagee; and (2) such purchaser's, transferee's, or
assignee's direct and indirect successors and assigns. Any Successor Tenant
shall have all the rights and obligations of Tenant under this Lease, subject to
the Nonrecourse Clause.
TEMPORARY CONDEMNATION. A "TEMPORARY CONDEMNATION" shall mean a
Condemnation of the temporary right to use or occupy all or part of the
Premises.
TENANT'S CURE PERIOD EXPIRATION NOTICE. A "TENANT'S CURE PERIOD
EXPIRATION NOTICE") shall mean a Notice, from Landlord to all Leasehold
Mortgagees, that for any particular alleged Default: (1) states that Tenant's
cure period has expired; (2) describes such alleged Default in reasonable
detail; (3) cites the provision of this Lease under which such alleged Default
arose; and (4) specifies the duration of the relevant Leasehold Mortgagee's Cure
Rights. For all Leasehold Mortgagees, any Tenant's Cure Period Expiration Notice
shall become effective only when Landlord has delivered it to all Leasehold
Mortgagees. Landlord need not deliver sequential Tenant's Cure Period Expiration
Notices to multiple Leasehold Mortgagees.
TENANT-SPECIFIC DEFAULT. A "TENANT-SPECIFIC DEFAULT" shall mean any
Default that: (a) is not reasonably susceptible of cure by a Leasehold
Mortgagee, such as (to the extent, if any, that it actually constitutes a
Default under this Lease) any Default resulting from a Bankruptcy Proceeding
affecting any Person; prohibited transfer; prohibited change of management;
failure to deliver required financial information within Tenant's control;
failure to remove or retain any particular officer, employee, or director of
Tenant; failure to comply with restrictions or requirements regarding
nondisclosure, competition, or obligations regarding other activities that
relate to other real property of Landlord or Tenant; (b) by its nature relates
only to, or can reasonably be performed only by, Tenant or its Affiliates; or
(c) consists of Tenant's failure to satisfy or discharge any lien, charge, or
encumbrance that: (1) attaches to the Leasehold Estate but not the Fee Estate;
(2) is junior to the Leasehold Mortgage; and (3) this Lease prohibits.
TENANT-SPECIFIC OBLIGATION. A "TENANT-SPECIFIC OBLIGATION" shall
mean any obligation whose breach would constitute a Tenant-Specific Default.
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TERM. The "TERM" shall mean a term beginning on the date hereof and
ending on the Scheduled Expiration Date.
TRACKAGE RIGHTS. The "TRACKAGE RIGHTS" shall mean, collectively, all
of Landlord's right, title and interest in and to any and all operating and
trackage rights below the Premises, including the rights of Landlord to: (i)
operate trains, cars and locomotives (commercial, freight and passenger); (ii)
provide through and local train service (commercial, freight, passenger, and
mail); (iii) operate long haul (through) train service (commercial, freight,
passenger and mail); (iv) provided that such activities do not unreasonably
interfere with the use and operations of the Premises, use or occupy any portion
of the Premises to operate any and all of the foregoing equipment, facilities,
and services; and (v) exercise Landlord's rights under the Franchise Agreement.
TRANSFER. A "TRANSFER" of any property shall mean any of the
following, whether by operation of law or otherwise, whether voluntary or
involuntary, and whether direct or indirect: (a) any sale, grant, conveyance,
assignment, mortgage, pledge, hypothecation, or other transfer, whether direct
or indirect, of all or any part of such property, or of any legal, beneficial,
or equitable interest or estate in the same or any portion thereof (including
the grant of any lien, easement, or other encumbrance); (b) any sale, other
transfer, issuance, modification, conversion, exchange, or other reallocation(s)
of any Equity Interest(s) in the owner of such property by the holder of such
Equity Interest(s); (c) any other direct, indirect, voluntary, or involuntary
transfer, assignment, sale, conveyance, pledge, or hypothecation affecting any
Equity Interest(s) or any other interest in such property or in any such owner
(or in any other direct or indirect owner at any higher tier of ownership)
through any manner whatsoever; or (d) any transaction that is in substance
equivalent to any of the foregoing transactions. A transaction affecting Equity
Interests in Tenant or another entity, as referred to in clauses "b" through
"d," shall be deemed a Transfer by Tenant even though Tenant is not technically
the transferor. The term "TRANSFER" shall not, however, include any transfer
(provided that the other party to this Lease has been given Notice of such
transfer) of an Equity Interest that constitutes a mere change in form of
ownership with no material change in beneficial ownership and is a tax-free
transaction under federal income tax law and New York State real estate transfer
tax law.
TRANSPORTATION INFRASTRUCTURE. The "TRANSPORTATION INFRASTRUCTURE"
shall mean all present and future equipment (including elevators and
escalators), machinery, communications lines and devices (including public
address lines and devices), non-retail signage, utilities, and other property of
any kind that in each of the foregoing cases: (a) is necessary or appropriate to
the operation of the train station presently known as Pennsylvania Station as
opposed to Retail Operations; (b) is owned or leased by Landlord or any
Affiliate of Landlord; and (c) if removed, would not materially interfere with
or impair the use of the Premises as the same are now being used.
UNAVOIDABLE DELAY. An "UNAVOIDABLE DELAY" shall mean delay in
performance of any obligation under this Lease (excluding any obligation to pay
money) arising from or on account of any cause whatsoever beyond the reasonable
control of the Person required to perform, notwithstanding such Person's
reasonable diligent efforts, including industry-wide strikes, labor troubles or
other union activities (but only to the extent such actions (a) affect similar
premises at that time and (b) do not result from an act or omission of the
Person claiming
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Unavoidable Delay), such Person's inability to obtain required labor or
materials after reasonable commercial efforts to do so, litigation (unless
caused by the party claiming Unavoidable Delay), Loss, accidents, Laws,
governmental preemption, war, or riots. Unavoidable Delay shall not include any
delay caused by the insolvency, financial condition, or illiquidity of the
Person obligated to perform. A party required to perform under this Lease shall
give the other party Notice within 30 days after such party knows of any such
Unavoidable Delay and shall give the other party Notice within 10 days after
such Unavoidable Delay ceases to exist. Where this Lease states that performance
of any obligation is subject to Unavoidable Delay(s) or words of similar import,
such Unavoidable Delay(s) shall extend the time permitted for such performance
only by the number of days by which such Unavoidable Delay(s) actually delayed
such performance.
UNECONOMIC. Any fact, circumstance, or event shall render the
Premises "UNECONOMIC" if it does or would, in Tenant's reasonable judgment, with
Leasehold Mortgagee's Consent: (1) materially diminish the value or utility of
the Premises; (2) prevent all or a substantial part of the Premises from being
used for its previously intended purpose; (3) materially impairs any material
service(s) necessary or appropriate for economic operation of the Premises; (4)
cause all or part of the Premises not to comply with any operating requirements
under any license or franchise held by Tenant; (5) prevent Tenant from
reasonably operating the Premises for retail and office uses, whether in a
manner substantially consistent with past practice or on a scale that is smaller
but nevertheless profitable (after taking into account the payment of all
expenses) and reasonably feasible; or (6) cause Tenant's operation of all or
part of the Premises to be impracticable or commercially unreasonable.
VEHICULAR/PEDESTRIAN PASSAGEWAY. The "VEHICULAR/PEDESTRIAN
PASSAGEWAY" shall mean all of Landlord's right, title and interest in, to, and
under the area located above Concourse Area A and Concourse Area B on the Site
Plan attached as EXHIBIT E running between 33rd Street and 31st Street
identified as "taxi drive" thereon.
WAIVER OF SUBROGATION. A "WAIVER OF SUBROGATION" shall mean a
provision in, or endorsement to, any policy of property insurance, by which the
insurance carrier agrees to waive all rights of recovery by way of subrogation
against either party to this Lease in connection with any loss covered by such
policy.
2 DEMISING OF PREMISES; TERM.
2.1 DEMISE. Landlord hereby leases and demises the Premises to
Tenant, and Tenant hereby leases the Premises from Landlord, for the Term,
subject to the Permitted Exceptions. Anything contained in this Lease to the
contrary notwithstanding, in no event shall this Lease be or be deemed to be an
assignment, conveyance, release, sublet or other transfer of Landlord's interest
in and to (a) the Level A and Platform Lease, dated August 5, 1988 by and
between Landlord, as lessor, and the LIRR, as lessee or (b) the East End
Concourse Lease, dated September 29, 1997, and by and between Landlord, as
lessor, and NJT, as Lessee, or (c) any of the other instruments, documents and
agreements between the parties thereto and their successors and assigns.
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2.2 TERM. The Term shall commence on the Commencement Date. The Term
shall continue until 11:59 p.m. on the Scheduled Expiration Date, unless
terminated sooner.
3 RENT.
3.1 FIXED RENT. Tenant shall pay Landlord, without notice or demand,
in lawful money of the United States of America, a net rental (the "FIXED RENT")
equal to $300,000,000.
3.2 PAYMENT; PRORATION; ETC. Tenant shall pay Fixed Rent in one
installment in advance on the date hereof. Tenant shall pay all other items of
Rent payable to Landlord by good and sufficient check payable to Landlord or by
wire transfer, at such address as Landlord shall designate from time to time.
Landlord acknowledges receipt of the payment in full of Fixed Rent for the Term.
3.3 ADDITIONAL RENT. In addition to Fixed Rent, Tenant shall pay
Landlord (or the appropriate third party, as applicable), as additional rent
under this Lease, all Additional Rent. Except where this Lease provides
otherwise, Tenant shall pay all Additional Rent within 10 Business Days after
receipt of an invoice and reasonable backup documentation.
3.4 NO ALLOCATION TO FF&E. No Rent is allocable to any FF&E.
3.5 NO OFFSETS. Tenant shall pay all Rent without offset, defense,
claim, counterclaim, reduction, or deduction of any kind whatsoever.
3.6 GOVERNMENT RESTRICTION ON RENT. During any period when any Rent
shall be or become uncollectible, reduced, or required to be refunded because of
any rent control Law or other Law (a "RENT REGULATION PERIOD"), Tenant shall
enter into such agreement(s) and take such other steps as Landlord may
reasonably request and as may be legally permissible to permit Landlord to
collect the maximum Rent that, from time to time during such Rent Regulation
Period, may be legally permissible (and not in excess of the amounts then
reserved therefor under this Lease to the extent then due and payable under this
Lease). After any Rent Regulation Period: (a) Rent shall become and thereafter
be payable in accordance with this Lease; and (b) Tenant shall promptly pay in
full to Landlord, unless prohibited by Law, an amount equal to the difference,
if any, between the following during the Rent Regulation Period: (1) the Rent
that this Lease required Tenant to pay under the express terms of this Lease;
less (2) the Rent Tenant actually paid.
4 ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS.
4.1 LANDLORD'S NET RETURN. This Lease shall constitute an absolutely
"net lease." The Fixed Rent shall give Landlord an absolutely "net" return for
the Term, free of any expenses or charges for the Premises, except as this Lease
expressly provides. Tenant shall pay as Additional Rent and discharge (subject
to Tenant's right of Contest or Landlord's obligation to perform acts or furnish
services as this Lease expressly provides), before failure to pay shall create a
material risk of forfeiture or penalty, each and every item of expense, of every
kind and nature whatsoever, related to or arising from the Premises, or by
reason of or in any manner connected with or arising from the development,
leasing, operation, management, maintenance,
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repair, use, or occupancy of, or Construction Work affecting, the Premises or
any portion of the Premises. Notwithstanding anything to the contrary in this
Lease, Tenant shall not be required to pay any of the following and Tenant may
offset against Rent any sums paid by Tenant on account of, and Landlord shall
Indemnify Tenant with respect to the payment of, the following items payable,
accrued, or incurred by Landlord: (a) Fee Debt Service; (b) depreciation,
amortization, brokerage commissions, financing or refinancing costs, management
fees, or leasing expenses for the Fee Estate or the Premises; (c) consulting,
overhead, accounting, tax preparation, other professional fees, travel, legal
and staff costs, bank service charges, and other costs incidental to Landlord's
ownership of the Premises and administration and monitoring of this Lease,
including such costs Landlord incurs in reviewing anything Tenant delivers under
this Lease (except where this Lease expressly provides otherwise); (d) any costs
or expenses that Landlord incurs in or for any litigation, except to the extent
that this Lease requires Tenant to pay such costs or expenses; (e) any costs
arising from or under any instrument or agreement affecting the Premises but not
a Permitted Exception and to which Landlord is a party and Tenant is not a
party; (f) any Impositions, insurance premiums, utilities, operating expenses,
or other costs related to the Premises that accrued before the Commencement
Date; (g) any sums payable by Landlord under this Lease; (h) any professional
fees, consulting fees, or other costs Landlord incurs in reviewing any items
delivered by Tenant under this Lease or otherwise in monitoring or administering
this Lease or determining whether Tenant is in compliance with this Lease,
except as this Lease otherwise expressly provides; (i) all costs related to or
arising from the Excluded Premises; and (j) all other costs or expenses that, by
their nature, are personal to Landlord or Landlord's investment in or ownership
of the Fee Estate.
4.2 IMPOSITIONS. During the Term (with daily proration for periods
partially within the Term and partially outside the Term), Tenant shall pay and
discharge as Additional Rent all Impositions, before failure to pay shall create
a material risk to Landlord of forfeiture or penalty, subject however to
Tenant's right of Contest as this Lease expressly provides. Tenant shall also
pay all interest and penalties any Government assesses for late payment of any
Imposition, except late payment assessed because Landlord failed to remit an
Imposition (paid to Landlord by Tenant) in accordance with Tenant's reasonable
instructions (provided they involve only ministerial functions) or failed to
promptly forward Tenant a copy of any applicable ▇▇▇▇ that Landlord receives. In
the latter case Landlord shall pay such interest and penalties. Tenant shall
within a reasonable time after Notice from Landlord give Landlord reasonable
proof that Tenant has paid any Imposition(s) that this Lease requires Tenant to
pay. Tenant shall have the sole right and authority to contest Impositions, in
compliance with the Contest Conditions.
4.3 ASSESSMENTS IN INSTALLMENTS. To the extent permitted by Law,
Tenant shall have the right to apply to have any assessment payable in
installments. Tenant shall then pay and discharge only such installments as
shall become due and payable during the Term.
4.4 BID DECISIONS. If any proposal is made to include the Premises
in any BID (or to modify any of the terms of any BID, including the amount or
calculation of any required payments) and the owner of the Premises is entitled
to vote in favor of or against such proposal, then Landlord shall determine how
to vote and Tenant shall have no right to participate in such determination or
vote. Tenant shall execute any documents Landlord reasonably requires to
evidence and implement the requirements of this paragraph.
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4.5 DIRECT PAYMENT BY LANDLORD. If any Imposition or other
Additional Rent must be paid directly by Landlord, then: (a) Landlord appoints
Tenant as Landlord's attorney-in-fact for making such payment; and (b) if the
payee nevertheless refuses to accept payment from Tenant, then Tenant shall
Notify Landlord of such fact and shall pay such amount to Landlord in a timely
manner accompanied by reasonable instructions on the further remittance of such
payment. Landlord shall with reasonable promptness comply with Tenant's
reasonable instructions. Landlord shall Indemnify Tenant against Landlord's
failure to do so.
4.6 UTILITIES. Tenant shall arrange and pay for all fuel, gas,
light, power, water, sewage, garbage disposal, telephone, and other utility
charges, and the expenses of installation, maintenance, use, and service in
connection with the foregoing, for the Premises during the Term. Landlord shall
have absolutely no liability or responsibility in connection with any of the
foregoing, provided that Landlord performs its obligations regarding any related
Applications and Filings. Nothing in this paragraph shall obligate Tenant to
maintain, repair, pay for, replace, or operate any Excluded Premises. If Tenant
causes any damage or interference to any Excluded Premises, then Landlord may
repair such damage or interference and Tenant shall reimburse Landlord as
Additional Rent for the reasonable cost of such repair.
4.7 INTERACTION WITH AMTRAK SUBLEASE. Notwithstanding anything to
the contrary in this Lease, to the extent that Amtrak Subtenant agrees to
perform any obligation that is substantially similar to any obligation of Tenant
under this Lease, if any Default occurs regarding such obligation (an "AMTRAK
SUBTENANT DEFAULT"), such Amtrak Subtenant Default shall not constitute a
Default for purposes of this Lease.
5 USE.
5.1 PERMITTED USE. Tenant may use the Premises for any legal
purpose. In using the Premises, Tenant shall at no time interfere with or damage
any Excluded Premises.
5.2 CONTROL. Tenant shall have possession, occupancy, use, and
management of the Premises, subject only to Permitted Exceptions, the Reserved
Rights and the Excluded Premises. Tenant shall have the exclusive right to
install signage on or at the Premises, or to Transfer the right to install such
signage during the Term to a third party, in compliance with Law, except for
signage that constitutes Transportation Infrastructure. Tenant may enter into,
terminate, modify, amend, or waive any existing or future contracts relating to
management or operation of the Premises and provision of services to the
Premises. Any such contracts shall automatically expire on the Expiration Date.
Tenant shall Indemnify Landlord for any claims relating to the control,
possession, occupancy, and management of the Premises during the Term, subject
only to the terms of this Lease.
5.3 RAILROAD STATION OPERATIONS. Tenant acknowledges that the
Premises are located in, and part of, a railroad station operated by Landlord
and Landlord's designees or contractors. To facilitate the operation of such
railroad station, Tenant shall not, in the course of its use and occupancy of
the Premises (including any Construction Work) or exercise of any of Tenant's
rights under this Lease or otherwise regarding the Premises, modify any of the
following without Landlord's prior written consent, which may be withheld for
any reason or no reason: (a) circulation patterns within the Premises (other
than within areas that were leased to
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retail operators as of the Commencement Date); (b) access pathways to any of
Landlord's Improvements (other than in connection with its enforcement of
Landlord's Additional Covenants); (c) capacity, access controls, floor finishes,
or other characteristics of either of "a" or "b"; or (d) configuration or layout
of any of the foregoing. During any Construction Work, Landlord shall not
unreasonably refuse to permit temporary interference with any of "a" through
"d," but such interference shall be subject to such rules, regulations,
restrictions, and requirements as Landlord shall reasonably establish from time
to time based on past practices. Landlord may prohibit all such interference
during "rush hour" periods as identified by Landlord in good faith from time to
time, even if this requires Tenant to use overtime labor to perform Construction
Work. Landlord may from time to time establish reasonable rules and regulations
governing activities in the Premises, and may close portions of the Premises to
the public, as reasonably necessary for the conduct of Landlord's railroad
activities.
5.4 MANAGEMENT FEES. Tenant shall timely pay and discharge all fees,
costs, and expenses related to or arising from the management or operation of
the Premises and the provision of services to the Premises.
6 COMPLIANCE.
6.1 GENERALLY. Tenant shall during the Term, at Tenant's expense, in
all material respects; subject to Tenant's right of Contest, and except to the
extent relating to any Excluded Premises: (a) comply with all Laws and Permitted
Exceptions; and (b) procure and comply with all Approvals required by Law.
6.2 COPIES OF NOTICES. Landlord shall promptly give Tenant a copy of
any notice of any kind relating to the Premises or any Impositions (including
any ▇▇▇▇ or statement), and any notice of nonrenewal or threatened nonrenewal of
any Approval that Landlord receives from any Government, utility company,
insurance carrier, insurance rating bureau, or other agency or authority having
or claiming jurisdiction over, or an interest in, the Premises or its use,
operation, or occupancy or Tenant's activities permitted by this Lease.
7 MAINTENANCE AND ALTERATIONS.
7.1 OBLIGATION TO MAINTAIN. Except to the extent that (a) this Lease
otherwise expressly provides or permits or (b) Tenant is performing Construction
Work in compliance with this Lease, Tenant shall during the Term keep and
maintain the Premises in good order, condition, and repair as the same has been
maintained prior to the date hereof, subject to Loss (governed by other
provisions of this Lease), reasonable wear and tear, and any other conditions
that this Lease does not require Tenant to repair. Tenant's obligation to
maintain the Premises includes an obligation to make all repairs that the
Premises (including plumbing, heating, air conditioning, ventilating,
electrical, lighting, fixtures, walls, building systems, ceilings, floors,
windows, doors, plate glass, and signs located in, on or at the Premises,
together with any sidewalks and streets adjacent to the Premises) may require by
Law from time to time during the Term, whether structural or nonstructural,
foreseen or unforeseen, capital or operating. Notwithstanding anything to the
contrary in this paragraph, Tenant shall have no obligation to maintain, and
Landlord shall maintain, all Excluded Premises.
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7.2 CONSTRUCTION WORK. At Tenant's sole cost and expense, Tenant may
but need not perform any Construction Work, without Landlord's consent, as
Tenant shall consider necessary or appropriate, provided that such Construction
Work: (a) does not adversely affect or interfere with any Excluded Premises or
the Reserved Rights; (b) does not diminish the value or utility of the Premises,
Landlord's Fee Estate, or the use of the Premises (including capacity) for its
existing purposes; and (c) complies with Law. Tenant shall not perform any
Construction Work except in compliance with the preceding sentence and all other
applicable requirements of this Lease. To the extent that Tenant commences any
Construction Work, Tenant shall complete it with reasonable diligence and within
a reasonable period. Tenant shall pay for all Construction Work when and as
required by the parties that perform such Construction Work. At least 10 days
before starting any Major Construction Work, Tenant shall give Landlord for such
Construction Work: (w) a complete copy of Tenant's plans and specifications and
schedule; (x) all contract(s); (y) proof of the insurance this Lease requires;
and (z) such other documents and deliveries (including additional insurance) as
Landlord shall reasonably require. All contracts for Construction Work shall
provide that: (a) the contractor acknowledges that any mechanics' liens shall be
enforceable solely against the Leasehold Estate and not the Fee Estate; and (b)
at Landlord's option, Tenant may assign such contracts to Landlord. To the
extent Landlord requires, Tenant shall assign any or all such contracts to
Landlord, such assignment to be effective upon an Event of Default, all under
documents reasonably satisfactory to Landlord. If any Construction Work is Major
Construction Work, then Tenant shall deliver to Landlord, before commencing such
Construction Work, a surety bond (or other security reasonably satisfactory to
Landlord) on terms reasonably satisfactory to Landlord in an amount equal to
110% of the cost of such Construction Work. Tenant shall also deliver to
Landlord such a bond or other security for any Construction Work undertaken by
any retail Subtenant or subsubtenant if: (a) the estimated cost of such
Construction Work exceeds $100,000 times the CPI Adjustment Factor; and (b)
Landlord does not waive such bond or other security, such waiver not to be
unreasonably withheld. All improvements that Tenant or anyone claiming through
Tenant constructs in the Premises shall become part of the Improvements.
7.3 PLANS AND SPECIFICATIONS. Promptly after completing any Major
Construction Work, Tenant shall give Landlord copies of Tenant's plans and
specifications and surveys (including working plans and specifications and
"as-built" plans and specifications and surveys) for such Construction Work.
Such deliveries are for Landlord's information only except to the extent, if
any, this Lease otherwise expressly states.
7.4 APPLICATIONS AND FILINGS. Upon Tenant's request, Landlord shall,
without cost to Landlord, promptly join in and execute any Application or Filing
as Tenant may from time to time request, provided that: (a) such Application or
Filing is in customary form and imposes no material obligations (other than
obligations that are ministerial in nature or merely require compliance with
Law) upon Landlord; (b) no uncured Event of Default exists; and (c) Tenant
reimburses Landlord's Legal Costs incurred in performing under this paragraph.
7.5 OTHER COOPERATION WITH APPROVALS. Promptly upon Tenant's request
and without charge to Tenant, Landlord shall furnish all information in its
possession that Tenant shall reasonably request and that is required in
connection with the filing and prosecution of any Applications and Filings.
Tenant shall, on Landlord's request, reimburse any Legal Costs that Landlord
incurs in connection with the foregoing.
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7.6 LANDLORD NONAPPEARANCE. Unless an uncured Event of Default
exists, Landlord shall not appear in opposition to any action or application
brought, sought, or defended by Tenant before any Government arising out of any
Application or Filing consistent with this Lease.
8 PROHIBITED LIENS.
8.1 TENANT'S COVENANT. If a Prohibited Lien is filed then Tenant
shall, within 60 days after receiving Notice from Landlord of such filing (but
in any case within 15 days after receipt of Notice from Landlord of commencement
of foreclosure proceedings), commence appropriate action to cause such
Prohibited Lien to be paid, discharged, bonded, or cleared from title under New
York Lien Law Section 20 or any similar successor statute. Tenant shall
thereafter prosecute such action with reasonable diligence and continuity. If
Landlord receives notice of any such filing, then Landlord shall promptly Notify
Tenant. Nothing in this Lease shall be construed to: (a) limit Tenant's right of
Contest; or (b) obligate Tenant regarding any lien that results from any act or
omission by Landlord. If any Subtenant causes a Prohibited Lien, then Tenant's
obligations under this paragraph shall be suspended so long as both: (a) Tenant
is with reasonable diligence endeavoring to cause the Subtenant to remove the
Prohibited Lien; and (b) the holder of the Prohibited Lien has not commenced
foreclosure proceedings.
8.2 PROTECTION OF LANDLORD. NOTICE IS HEREBY GIVEN THAT LANDLORD
SHALL NOT BE LIABLE FOR ANY LABOR OR MATERIALS FURNISHED OR TO BE FURNISHED TO
TENANT UPON CREDIT, AND THAT NO MECHANIC'S OR OTHER LIEN FOR ANY SUCH LABOR OR
MATERIALS SHALL ATTACH TO OR AFFECT THE FEE ESTATE. NOTHING IN THIS LEASE SHALL
BE DEEMED OR CONSTRUED IN ANY WAY TO CONSTITUTE LANDLORD'S CONSENT OR REQUEST,
EXPRESS OR IMPLIED, BY INFERENCE OR OTHERWISE, TO ANY CONTRACTOR, SUBCONTRACTOR,
LABORER, EQUIPMENT OR MATERIAL SUPPLIER FOR THE PERFORMANCE OF ANY LABOR OR THE
FURNISHING OF ANY MATERIALS OR EQUIPMENT FOR ANY CONSTRUCTION WORK, NOR AS
GIVING TENANT ANY RIGHT, POWER OR AUTHORITY TO CONTRACT FOR, OR PERMIT THE
RENDERING OF, ANY SERVICES, OR THE FURNISHING OF ANY MATERIALS THAT WOULD GIVE
RISE TO THE FILING OF ANY LIENS AGAINST THE FEE ESTATE. TENANT SHALL INDEMNIFY
LANDLORD AGAINST ANY CONSTRUCTION WORK UNDERTAKEN BY TENANT OR ANYONE CLAIMING
THROUGH TENANT, AND AGAINST ALL PROHIBITED LIENS.
8.3 LANDLORD'S ADDITIONAL COVENANT. Landlord, on behalf of itself
and any entity owned or controlled by Landlord, any purchaser of all or
substantially all of its assets, and their respective successors and assigns
(each, a "LANDLORD PARTY"), covenants and agrees not to encumber, create,
assume, hypothecate, pledge or grant a security interest in or ▇▇▇▇▇ ▇ ▇▇▇▇,
charge or any other interest whatsoever in or with respect to the Landlord
Improvements and/or Landlord's right, title and interest in, to and under the
tracks and platforms situated below the ▇▇▇▇▇▇ Building, whether superior or
inferior to the rights and benefits of Tenant hereunder, except for or in
connection with (i) Permitted Exceptions (e.g., the rights of LIRR and NJT),
(ii) future liens for property taxes and assessments not then delinquent, (iii)
liens for real estate and personal property taxes and vault charges and all
other taxes, levies and other similar charges
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levied by a governmental authority on the Excluded Premises and/or ▇▇▇▇▇▇
Building not yet due and payable; (iv) statutory liens of carriers,
warehousemen, mechanics, materialmen and other similar liens arising by
operation of law, that are incurred in the ordinary course of business and
discharged by Landlord or any Landlord Party by payment, bonding or otherwise
within 45 days after the filing thereof or that are being contested in good
faith; (v) all easement, rights-of-way, restrictions and other similar
non-monetary encumbrances against real property, (vi) any other lien to which
the Tenant (subject to Leasehold Mortgagee's Consent) may expressly consent to
in writing. Anything contained in this Agreement to the contrary
notwithstanding, including, without limitation, the provisions contained in the
defined terms "Trackage Rights" or "Reserved Rights" or the exclusion of the
Excluded Premises from the Premises, in the event that Landlord or any Landlord
Party is in default of Landlord's Additional Covenants beyond notice and grace
periods, Landlord or any Landlord Party, in operating its trains, cars and
locomotives, whether in connection with through or local train service including
long haul, commercial passenger, freight and mail, may not use the tracks
forming a part of or incorporated in the term Trackage Rights or the ▇▇▇▇▇▇
Building to stop and pick up or discharge passengers or load or unload freight,
mail or other commercial products except with respect to or otherwise in
connection with the health or safety of passengers and/or Landlord's invitees,
employees and agents. Each party hereto agrees that Tenant could be irreparably
damaged if Landlord failed to perform Landlord's Additional Covenants under this
Agreement, and that Tenant would not have an adequate remedy at law for money
damages in such event. Accordingly, Tenant shall be entitled to specific
performance and injunctive and other equitable relief to enforce the performance
of the Landlord's Additional Covenants. This provision is without prejudice to
any other rights that Tenant may have against Landlord for any failure by
Landlord to perform the Landlord's Additional Covenants under this Agreement.
9 HAZARDOUS SUBSTANCES.
9.1 RESTRICTIONS. Tenant shall not cause or permit to occur on,
under or at the Premises during the Term: (a) any violation of any material
Environmental Law; or (b) the use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous Substance, or the
transportation to or from the Premises of any Hazardous Substance, unless both:
(i) reasonably necessary and customary for the conduct of Tenant's or any
Subtenant's business in accordance with customary standards for Tenant's or any
Subtenant's , as the case may be, industry, or to operate and maintain the
Premises for uses this Lease permits and (ii) in compliance with all material
applicable Environmental Laws.
9.2 COMPLIANCE; CLEAN-UP. Tenant shall, at Tenant's expense, to the
extent relating to or arising from Tenant's or any Subtenant's activities, or
from any Retail Operations: (a) comply with all applicable material
Environmental Laws and, to the extent required by Environmental Laws, clean up
any Hazardous Substances Discharge on, at, or under the Premises; (b) make all
submissions to, deliver all information required by, and otherwise fully comply
with all requirements of any Government arising under material Environmental
Laws; (c) if any Government requires any clean-up plan or clean-up measures
because of a Hazardous Substances Discharge, prepare and submit the required
plans and all related bonds and other financial assurances; (d) promptly and
diligently carry out all such clean-up plans; and (e) Indemnify Landlord against
any Hazardous Substances Discharge. Any party's obligations under this paragraph
shall not limit such party's rights against third parties.
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9.3 ENVIRONMENTAL INDEMNITY. Anything contained in this Lease to the
contrary notwithstanding, Landlord shall and hereby does indemnify, defend, and
hold Tenant harmless from any claims, liabilities, costs (including response and
remediation costs), or expenses, including, but not limited to, reasonable
attorneys' fees and costs of litigation, incurred or suffered by Tenant arising
from the bringing, allowing, using, permitting, generating, creating, emitting,
releasing, or disposing of Hazardous Substances by Landlord, its employees,
agents, contractors, business invitees, and subtenants and all other persons and
entities claiming by, through, or under Landlord whether such acts existed prior
to or after the date hereof. Landlord's duty to defend, hold harmless, and
indemnify Tenant hereunder shall survive the expiration or earlier termination
of this Lease. Landlord acknowledges that Landlord has an affirmative duty to
notify immediately Tenant of any release or suspected release of Hazardous
Substances on or about the Premises.
10 INDEMNIFICATION; LIABILITY OF LANDLORD.
10.1 OBLIGATIONS. Landlord and Tenant shall each Indemnify the other
against any: (a) wrongful act, wrongful omission, or negligence of the
Indemnitor (and anyone claiming by or through the Indemnitor) or its or their
partners, members, directors, officers, or employees; and (b) breach or default
by the Indemnitor under this Lease. In addition, Tenant shall Indemnify Landlord
against all the following matters during the Term and so long as Tenant remains
in possession after the Expiration Date: (v) any Applications and Filings
entered into at Tenant's request; (w) the operation or occupancy of the
Premises; (x) any Construction Work and any agreements made by Tenant or anyone
claiming through Tenant regarding Construction Work; (y) the condition of the
Premises or any street, curb or sidewalk adjoining the Premises, or of any
vaults, tunnels, passageways or space under, adjoining or appurtenant to the
Premises; and (z) any accident, injury or damage whatsoever caused to any person
in or on the Premises or upon or under the sidewalks adjoining the Premises.
Notwithstanding anything to the contrary in this Lease, no Indemnitor shall be
required to Indemnify any Indemnitee regarding the Indemnitee's intentional acts
or omissions or negligence. This paragraph does not apply to Environmental Laws
and Hazardous Substances Discharges, which are covered elsewhere.
10.2 LIABILITY OF LANDLORD. During the Term, subject to the Reserved
Rights: (a) Tenant is and shall be in exclusive control and possession of the
Premises; and (b) Landlord shall not be liable for any injury or damage to any
property (of Tenant or any other Person) or to any Person occurring on or about
the Premises, unless caused by Landlord's intentional act, omission, or
negligence. Landlord shall Indemnify Tenant against: (i) Landlord's installation
and operation of all Excluded Premises; (ii) the exercise of the Reserved
Rights; and (iii) any claim arising from or relating to any real property (other
than the Premises) owned or leased by Landlord or any Affiliate of Landlord,
including any Construction Work and any past, present, or future violation of
any Environmental Law in, on, or at such real property. Landlord's rights under
this Lease shall not impose upon Landlord any liability to third parties, but
nothing in this Lease shall be construed to exculpate, relieve or Indemnify
Landlord from or against any liability of Landlord: (a) to third parties
existing at or before the Commencement Date; (b) arising from the intentional
acts or omissions or negligence or the exercise of the Reserved Rights; or (c)
arising from any matter for which this Lease requires Landlord to Indemnify
Tenant.
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10.3 INDEMNIFICATION PROCEDURES. Wherever this Lease requires an
Indemnitor to Indemnify an Indemnitee:
10.3.1 PROMPT NOTICE. The Indemnitee shall give the Indemnitor
prompt Notice of any claim. To the extent, and only to the extent, that both (a)
the Indemnitee fails to give prompt Notice and (b) such failure materially
prejudices the Indemnitor, the Indemnitor shall be relieved of its indemnity
obligations under this Lease regarding such claim.
10.3.2 SELECTION OF COUNSEL. The Indemnitor shall select
counsel reasonably acceptable to the Indemnitee. Counsel to the Indemnitor's
insurance carrier shall be deemed satisfactory. Even though the Indemnitor shall
defend the action, the Indemnitee may, at its option and its own expense, engage
separate counsel to advise it regarding the claim and its defense. Such counsel
may attend all proceedings and meetings. The Indemnitor's counsel shall actively
consult with the Indemnitee's counsel. The Indemnitor and the Indemnitor's
counsel shall, however, fully control the defense.
10.3.3 SETTLEMENT. The Indemnitor may, with the consent of the
Indemnitee, not to be unreasonably withheld, settle the claim. The Indemnitee's
consent shall not be required for any settlement by which: (w) the Indemnitor
procures (by payment, settlement, or otherwise) a release of the Indemnitee by
which the Indemnitee is not required to make any payment whatsoever to the
claimant, (x) neither the Indemnitee nor the Indemnitor on behalf of the
Indemnitee makes any admission of liability, (y) the continued effectiveness of
this Lease is not jeopardized in any way, and (z) the Indemnitee's interest in
the Premises is not jeopardized in any way.
10.3.4 INSURANCE PROCEEDS. The Indemnitor's obligations shall
be reduced by net insurance proceeds actually collected by the Indemnitee on
account of the matter giving rise to the indemnification.
11 RIGHT OF CONTEST
11.1 TENANT'S RIGHT; CONTEST CONDITIONS. Notwithstanding anything to
the contrary in this Lease, Tenant shall have the exclusive right to contest, at
its sole expense, by appropriate legal proceedings diligently conducted in good
faith, the amount or validity of any Imposition or Prohibited Lien; the
valuation, assessment, or reassessment (whether proposed, phased, or final) of
the Premises for purposes of Impositions; the amount of any Imposition; the
validity of any Law or its application to the Premises; the terms or conditions
of, or requirements for, any Approval; or the validity or merit of any claim
against which this Lease requires Tenant to Indemnify Landlord (any of the
foregoing, a "CONTEST"). Tenant may defer payment or performance of the
contested obligation pending the outcome of the Contest, provided that Tenant
causes the following conditions (collectively, the "CONTEST CONDITIONS") to
remain satisfied:
11.1.1 NO CRIMINAL ACT. Such deferral or noncompliance shall
not constitute a criminal act on the part of Landlord or subject Landlord to a
material risk of any fines or penalties, other than civil penalties for which
Tenant has given Landlord a bond, letter of
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credit, or other security reasonably satisfactory to Landlord (the "CONTEST
SECURITY") in an amount equal to the reasonably estimated amount of such civil
penalties.
11.1.2 NO LIABILITY. Such deferral or noncompliance will not
create a material risk of a lien, charge, or other liability of any kind against
the Fee Estate, unless Tenant has given Landlord Contest Security equal to the
reasonably estimated amount of such lien, charge, or other liability.
11.1.3 NO FORFEITURE. Such deferral or noncompliance will not
place the Fee Estate in material danger of being forfeited or lost.
11.1.4 NO COST TO LANDLORD. Such Contest shall be without
cost, liability, or expense, to Landlord.
11.1.5 DILIGENCE. Tenant shall prosecute such Contest with
reasonable diligence and in good faith.
11.1.6 PAYMENT. If required for such Contest, Tenant shall
have paid the Contested Impositions or other matter.
11.1.7 COLLECTION OF IMPOSITIONS. If such Contest relates to
an Imposition, then such Contest shall suspend the collection of the contested
Imposition from Landlord and the Fee Estate.
11.1.8 NO TAX DEED. If, at any time, payment of any Imposition
is necessary to prevent the imminent (i.e., within 30 days) delivery of a tax
deed conveying the Fee Estate or any portion thereof as a result of nonpayment
of Impositions, then Tenant shall pay or cause to be paid the sums in sufficient
time to prevent delivery of such deed.
11.1.9 NO DEFAULT. No Event of Default shall exist under this
Lease at the time of such Contest.
11.1.10 SECURITY. If the amount at issue in such Contest (and
all other Contests then pending) exceeds an amount equal to $100,000 times the
CPI Adjustment Factor, then Tenant shall, before proceeding with such Contest,
give Landlord a bond, letter of credit, cash, or other security for such
Contest, in an amount equal to such excess, all in a manner reasonably
satisfactory to Landlord. Landlord shall promptly release such security to
Tenant after the Contest has been resolved and Tenant has performed its
obligations, if any, as determined by such resolution. Such security shall be
held in the same manner as the Security. The amount of any Contest Security
otherwise provided by Tenant shall be credited against Tenant's obligations
under this paragraph.
11.1.11 NAMED PARTIES. If Landlord has been named as a party
in any action, then Tenant shall cause Landlord to be removed as such party and
Tenant substituted in Landlord's place, if permissible under the circumstances.
11.2 LANDLORD OBLIGATIONS AND PROTECTIONS. Landlord need not join
in any Contest unless (a) Tenant has complied with the Contest Conditions and
(b) such Contest must
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be initiated or prosecuted in Landlord's name. In such case, Landlord shall
cooperate, as Tenant shall reasonably request, to permit the Contest to be
prosecuted in Landlord's name. Landlord shall give Tenant any documents,
deliveries, and information in Landlord's control and reasonably necessary for
Tenant to prosecute its Contest. Landlord shall otherwise assist Tenant in such
Contest as Tenant shall reasonably require. Tenant shall pay all reasonable
costs and expenses, including Legal Costs, incident to any Contest. Tenant
shall, upon Landlord's request, advance (when Landlord incurs them) any
reasonable, actual third party out-of-pocket costs and expenses, including Legal
Costs, that Landlord incurs or reasonably anticipates incurring, for Tenant's
Contest and Landlord's assistance with such Contest. Tenant shall Indemnify
Landlord regarding Tenant's Contest.
11.3 MISCELLANEOUS. Tenant shall be entitled to any refund of any
Imposition (and penalties and interest paid by Tenant), to the extent
attributable to periods within the Term, whether such refund is made during or
after the Term. Upon termination of Tenant's Contest of an Imposition, Tenant
shall pay the amount of such Imposition (if any) as has been finally determined
in such Contest to be due, to the extent attributable to periods within the
Term, together with any costs, interest, penalties, or other liabilities in
connection with such Imposition. Upon final determination of Tenant's Contest of
a Law by a court of competent jurisdiction, Tenant shall comply with such final
determination. So long as the Contest Conditions remain satisfied, Landlord
shall not enter any objection to any Contest. Landlord may contest any matter
for which Tenant is entitled to (but does not) prosecute a Contest, but only if:
(a) Landlord Notifies Tenant of Landlord's intention to do so; (b) Tenant fails
to commence such Contest within 15 days after receipt of such Notice; and (c)
Landlord's contest complies with all conditions and covenants that would apply
to a Contest by Tenant, transposing references to the parties and their
interests as appropriate.
12 INSURANCE.
12.1 TENANT TO INSURE. Tenant shall, at its sole expense, during the
Term, maintain or cause to be maintained, the following insurance (or its then
reasonably available equivalent): (a) Property Insurance; and (b) Liability
Insurance.
12.2 NATURE OF INSURANCE PROGRAM. All insurance policies this Lease
requires shall be issued by carriers that: (a) have a policyholders' rating of
"A:X" or better, based on the latest rating publication of Property and Casualty
Insurers by A.M. Best Company (or its equivalent if such publication ceases to
be published) and (b) are lawfully doing business in the State. Tenant may
provide any insurance under a "blanket" or "umbrella" insurance policy, provided
that (i) such policy or a certificate of such policy shall specify the amount(s)
of the total insurance allocated to the Premises, which amount(s) shall equal or
exceed the amount(s) required by this Lease and shall not be reduced for claims
made for other properties and (ii) such policy otherwise complies with this
Lease. Notwithstanding the above, the policies of insurance required by this
Lease may be written by so-called "captive" insurance company(ies) of Landlord,
provided that the risk is reinsured with insurers that have a claims paying
ability rating of not less than "A:X" by A.M. Best.
12.3 POLICY REQUIREMENTS AND ENDORSEMENTS. All insurance policies
this Lease requires shall contain (by endorsement or otherwise) the following
provisions:
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12.3.1 INSUREDS. Liability Insurance policies shall name
Landlord as an "additional insured" and all Mortgagees permitted by this Lease
as "additional insureds." Property Insurance policies shall name Tenant's Senior
Leasehold Mortgagee as loss payee as its interest may appear and each Mortgagee
permitted by this Lease under a standard noncontributing mortgagee clause.
Notwithstanding anything to the contrary in this paragraph, all Property
Insurance Proceeds shall be paid and applied as this Lease provides.
12.3.2 PRIMARY COVERAGE. All policies shall be written as
primary policies not contributing to or in excess of any coverage that Landlord
may carry.
12.3.3 CONTRACTUAL LIABILITY. Liability Insurance policies
shall contain contractual liability coverage, for Tenant's indemnity obligations
under this Lease, to the extent covered by customary contractual liability
insurance coverage. Tenant's failure to obtain such contractual liability
coverage shall not relieve Tenant from any indemnity obligation under this
Lease.
12.3.4 NOTICE TO LANDLORD. The insurance carrier shall
undertake to give Landlord 30 days' prior Notice of cancellation or nonrenewal,
other than on account of nonpayment of premiums, provided that failure to give
such Notice shall not adversely affect the rights or increase the obligations of
the insurance carrier.
12.3.5 ORDINANCE COVERAGE. Property Insurance policies shall
contain "ordinance or law" coverage.
12.4 DELIVERIES TO LANDLORD. On the Commencement Date, and no later
than 10 days before any Liability Insurance or Property Insurance expires or is
cancelled, Tenant shall deliver to Landlord certificates of insurance evidencing
Tenant's maintenance of all Liability Insurance and Property Insurance this
Lease requires, in each case providing coverage for at least one year from the
date delivered.
12.5 WAIVER OF CERTAIN CLAIMS. To the extent that Landlord or
Tenant purchases any policy of property insurance, the party purchasing such
insurance (the "INSURANCE PURCHASER") shall attempt to cause the insurance
carrier to agree to a Waiver of Subrogation, if not already included in the
policy. If any insurance policy cannot be obtained with a Waiver of Subrogation,
or a Waiver of Subrogation is obtainable only by paying an additional premium,
then the Insurance Purchaser shall so Notify the other party. The other party
shall then have 10 Business Days after receipt of such Notice either to (a)
direct the Insurance Purchaser insurance to place such insurance with a company
that is reasonably satisfactory to the other party and that will issue the
insurance with a Waiver of Subrogation at no greater or additional cost, or (b)
agree to pay the additional premium if such a policy can be obtained only at
additional cost. To the extent that the parties actually obtain insurance with a
Waiver of Subrogation, the parties release each other, and their respective
authorized representatives, from any claims for damage to any person or the
Premises that are caused by or result from risks insured against under such
insurance policies, but only to the extent of the available insurance proceeds.
12.6 NO REPRESENTATION. Neither party makes any representation that
the limits, scope, or forms of insurance coverage this Lease requires are
adequate or sufficient.
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13 LOSSES AND LOSS PROCEEDS.
13.1 NOTICE. If either party becomes aware of any Casualty or any
actual, threatened, or contemplated Condemnation, then such party shall promptly
Notify the other party and its Mortgagees.
13.2 EFFECT OF CASUALTY. If any Casualty occurs after the
Commencement Date, then no Rent shall ▇▇▇▇▇. Tenant shall Restore with
reasonable promptness. In the event of any such Casualty, (a) this Lease shall
not terminate; (b) Tenant shall be solely responsible for negotiating and
adjusting any Property Insurance Proceeds; and (c) all Property Insurance
Proceeds shall be applied to Restore, in accordance with the disbursement
procedures set forth in the Senior Leasehold Mortgagee's loan documents.
13.3 SUBSTANTIAL CONDEMNATION. If a Substantial Condemnation occurs
after the Commencement Date, then as of the Condemnation Effective Date the
Expiration Date shall occur and the parties shall apportion Rent. Landlord shall
not settle or compromise any Condemnation Award unless either: (a) the final
Condemnation Award equals or exceeds the Leasehold Mortgage Balance; or (b)
Landlord obtains both Tenant's consent and Leasehold Mortgagee's Consent. Tenant
may at its option control such proceedings (to the exclusion of Landlord, if
Tenant so elects) and claim such share of the Condemnation Award as Tenant is
entitled to receive under this Lease. Any Leasehold Mortgagee shall also (to the
exclusion of both Landlord and Tenant, to the extent Leasehold Mortgagee so
elects consistent with such Leasehold Mortgagee's loan documents) be entitled to
appear and participate in any settlement, arbitration, hearing, trial, appeal,
or other proceeding for any Condemnation. Any Condemnation Award shall be paid
to Depository. Landlord and Tenant (subject to the rights of Leasehold
Mortgagee(s)) shall allocate the Condemnation Award as follows and in the
following order of priority, without duplication, until exhausted:
13.3.1 PREPAYMENT PREMIUM. To Leasehold Mortgagee, to the
extent that both (1) because of such Condemnation, any Leasehold Mortgagee
imposes any fee or charge that such Leasehold Mortgagee could not have collected
but for the Condemnation and the related prepayment of such Leasehold
Mortgagee's loan, and (2) the Condemnation Award was directly or indirectly
increased by such fee or charge.
13.3.2 COSTS AND EXPENSES. Subject to the rights of Leasehold
Mortgagees, to reimburse Tenant for Tenant's actual costs and expenses,
including Legal Costs, incurred in the Substantial Condemnation and determining
and collecting the Condemnation Award.
13.3.3 TENANT'S CLAIM. Tenant shall, subject to the rights of
Leasehold Mortgagees, receive such portion of the Condemnation Award as shall
equal the Leasehold Mortgage Balance.
13.3.4 LANDLORD'S CLAIM. Landlord shall, subject to the rights
of Fee Mortgagees, receive the entire remainder of the Condemnation Award.
13.4 INSUBSTANTIAL CONDEMNATION. If an Insubstantial Condemnation
occurs after the Commencement Date, then any Condemnation Award(s) shall be paid
to Depository
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and applied first toward Restoration, in the same manner as Restoration after
Casualty. Whether or not the Condemnation Award is adequate, Tenant shall, at
its expense, Restore in compliance with this Lease. After Tenant has completed
and fully paid for Restoration, any remaining Condemnation Award shall be
distributed to Landlord and Tenant as if it arose from a Substantial
Condemnation that affected only the portion of the Premises taken, with an
equitable allocation of all elements taken into account in determining such
distribution.
13.5 TEMPORARY CONDEMNATION. If a Temporary Condemnation occurs
after the Commencement Date, then Tenant (subject to the rights of Leasehold
Mortgagees) shall receive the Condemnation Award (to the extent attributable to
periods within the Term) and this Lease shall not be affected in any way.
Landlord shall have no right to participate in any proceedings for a Temporary
Condemnation unless either (x) Tenant, with Leasehold Mortgagee's Consent,
elects to terminate this Lease because of the Temporary Condemnation or (y)
Tenant may not legally participate in such proceedings. In the latter case,
Landlord shall participate in such proceedings in accordance with Tenant's
instructions, all at Tenant's reasonable expense and using counsel selected,
instructed, and paid by Tenant, subject to the rights of Senior Leasehold
Mortgagee under its loan documents.
13.6 USE OF LOSS PROCEEDS. Landlord assigns to Tenant (and its
Leasehold Mortgagee(s)) the right to receive all Loss Proceeds. All Loss
Proceeds shall be paid to Depository, to be disbursed by Depository, subject to
the terms of the Senior Leasehold Mortgage and this Lease. If Landlord receives
any Loss Proceeds, Landlord shall promptly remit them to Depository. If a Loss
is an Immaterial Loss, then (subject to the terms of the Senior Leasehold
Mortgage on disbursement of Loss Proceeds to Restore) the Depository shall
release all Loss Proceeds to Tenant, to be applied first to Restoration. If a
Loss is not an Immaterial Loss, then Depository shall retain the Loss Proceeds
and pay them over to Tenant from time to time, upon the following terms, for
Restoration. Depository shall first reimburse Landlord and Tenant from such Loss
Proceeds for their actual, necessary, and proper costs and expenses in
collecting such Loss Proceeds. Depository shall release Loss Proceeds to Tenant
from time to time as Restoration progresses in accordance with the procedures
required by the Senior Leasehold Mortgagee. If no Leasehold Mortgage exists,
then Depository shall disburse the Loss Proceeds from time to time pursuant to
normal and customary disbursement procedures consistent with this Lease, as
reasonably required by Landlord. Until Tenant has completed and paid for
Restoration, Tenant shall hold all Loss Proceeds in trust to be used first to
Restore and for no other purpose. If any Prohibited Lien is filed against the
Premises, Tenant shall not be entitled to receive any further installment of
Loss Proceeds until Tenant has satisfied, bonded, or otherwise discharged such
Prohibited Lien when and as this Lease requires. When Tenant has completed and
paid for Restoration, Depository shall release to Tenant, and Tenant may retain
(subject to rights of Leasehold Mortgagees), any remaining Loss Proceeds. If
Restoration Funds are insufficient to Restore, then Tenant shall nevertheless
Restore at its expense. Depository shall not release any Loss Proceeds until and
unless Tenant has expended on such Restoration an amount equal to any such
insufficiency.
13.7 PAYMENTS FOR FEE ESTATE. Loss Proceeds shall under no
circumstances be paid to Landlord or any Fee Mortgagee unless Tenant validly
elects a Casualty Termination. Landlord and Tenant direct any condemning
authority to remit and disburse any Condemnation Awards to Senior Leasehold
Mortgagee (or Tenant) in accordance with this Lease.
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13.8 CONTINUATION OF LEASE. Except as this Lease expressly
provides, this Lease shall not terminate, be forfeited, or be affected in any
other manner, and Tenant waives any right to quit or surrender the Premises or
any part of the Premises, because of any Loss or any resulting untenantability.
Unless and until this Lease has been validly terminated, Tenant's obligations
under this Lease, including the obligation to pay Rent, shall continue unabated,
subject to the Nonrecourse Clause.
14 REPRESENTATIONS AND WARRANTIES.
Landlord represents and warrants to Tenant that the following facts
and conditions exist and are true as of the Commencement Date and, to the extent
specifically so stated, will remain true throughout the Term. In addition,
Tenant makes, for the benefit of Landlord, certain reciprocal representations
and warranties as set forth below.
14.1 DUE AUTHORIZATION AND EXECUTION. Landlord has full right,
title, authority, and capacity to execute and perform this Lease, the Memorandum
of Lease, and any other agreements and documents to which Landlord is a party
and referred to or required by this Lease (collectively, the "LEASE-RELATED
DOCUMENTS"); the execution and delivery of the Lease-Related Documents has been
duly authorized by all requisite actions of Landlord; the Lease-Related
Documents constitute valid, binding, and enforceable obligations of Landlord;
and neither the execution of the Lease-Related Documents nor the consummation of
the transactions contemplated thereby violates any agreement (including
Landlord's organizational documents), contract or other restriction to which
Landlord is a party or is bound. Tenant makes to Landlord representations and
warranties reciprocal to those in the preceding sentence. Both parties'
representations and warranties contained in this paragraph shall continue to
apply in full force and effect throughout the Term as if made continuously
during the Term.
14.2 NO LITIGATION. There is no existing or, to Landlord's
knowledge, pending or threatened litigation, suit, action, or proceeding before
any court or administrative agency affecting Landlord, any constituent entity or
individual of Landlord, or the Premises that would, if adversely determined,
adversely affect the Premises or Tenant's ability to continue Retail Operations.
14.3 FIRPTA. Landlord is not a "foreign person" within the meaning
of Section 1445(f)(3) of the United States Internal Revenue Code of 1986.
15 TRANSFERS BY LANDLORD.
15.1 LANDLORD'S RIGHT TO CONVEY. Landlord may Transfer the Fee
Estate from time to time, but only if (a) the Amtrak Sublease is still in full
force and effect and no Event of Default shall have occurred and be continuing
hereunder unless such Transfer shall cure such default; (b) the Transferee is
not a Prohibited Person; (c) such transaction and the resulting ownership of
Landlord do not otherwise violate this Lease; (d) Landlord promptly Notifies
Tenant of such Transfer; and (e) the Transfer is subject to this Lease and all
rights of Tenant (and Tenant's subtenants) under this Lease. If any transaction
violates the preceding sentence, then: (w) it shall be null, void, and of no
force or effect; (x) notwithstanding the foregoing,
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Tenant shall be entitled to equitable relief to cancel and rescind it; (y)
Tenant may terminate this Lease; and (z) Tenant may exercise any other available
rights or remedies.
16 FEE MORTGAGES.
16.1 LANDLORD'S RIGHTS. Landlord shall have the right to execute and
deliver Fee Mortgage(s) at any time and from time to time during the Term,
provided that each such Fee Mortgage complies with the definition of such term.
Any Mortgage made by Landlord that encumbers the Fee Estate but violates the
preceding sentence shall be null and void and a violation of this Lease. Tenant
need not join in, or subordinate this Lease to, any Fee Mortgage. If Tenant
enters into any such joinder or subordination, then it shall not be effective
without Leasehold Mortgagee's Consent. Any Fee Mortgagee shall acknowledge and
agree in writing that the Fee Mortgage that it holds is and shall be subject and
subordinate to this Lease and the lien of the Senior Leasehold Mortgage.
16.2 FEE MORTGAGE FORECLOSURE. Upon a Foreclosure Event under a Fee
Mortgage, this Lease shall continue in full force and effect. Tenant shall
attorn to the successor holder of the Fee Estate as successor Landlord, provided
that such successor holder has assumed in writing all obligations of Landlord
under this Lease. Such attornment shall in no way diminish or impair Tenant's
rights and remedies against Landlord (all of which Tenant may continue to assert
against the successor Landlord), or require Tenant to waive any default by
Landlord.
16.3 PROTECTION OF FEE MORTGAGEES. If Tenant gives Landlord any
Notice of any alleged breach or default by Landlord, then Tenant shall
simultaneously give a copy of such Notice to all Fee Mortgagee(s). Such Fee
Mortgagee(s) shall have the right to cure Landlord's alleged breach or default
within the cure period allowed to Landlord under this Lease, and with like
effect as if Landlord had done so. Tenant's failure to give Fee Mortgagee(s) the
Notice required by this paragraph shall not be a Default by Tenant, but no
Notice by Tenant of any Default by Landlord (or any resulting exercise of rights
and remedies by Tenant) shall be effective against such Fee Mortgagee(s) unless
and until Tenant shall have given to such Fee Mortgagee(s) such Notice and
opportunity to cure.
17 TENANT'S TRANSFERS.
17.1 TENANT'S ABSOLUTE RIGHT. Subject to the provisions of ARTICLE
19, Tenant may not Transfer this Lease or the Leasehold Estate without
Landlord's consent; except that the foregoing shall not apply to (a) any
Transfer by exercise of remedies under a Leasehold Mortgage or (b) any Person
whose title derives from any Transfer in clause (a).
18 SUBLEASES.
18.1 TENANT'S RIGHT TO SUBLET. Tenant may enter into or modify any
Sublease, terminate any Sublease or evict any Subtenant, and grant any consent
or waiver under any Sublease, all without Landlord's consent. No Sublease shall
affect any obligations of Tenant or rights of Landlord under this Lease, all of
which shall continue in full force and effect notwithstanding any Sublease. Any
Sublease shall expire no later than one day before the last day of the Term.
Tenant shall Indemnify Landlord regarding all Subleases. Except as provided
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in SECTION 4.7, the fact that any Subtenant causes any Default shall not relieve
Tenant of Tenant's obligation to cure it.
18.2 ASSIGNMENT OF SUBRENTS. To secure Tenant's performance under
this Lease, Tenant assigns, transfers, and sets over to Landlord, subject to the
conditions set forth in this paragraph (and subject to the rights of Leasehold
Mortgagees), all of Tenant's right, title, and interest in and to all Subleases
and Subrent. Tenant hereby confers on Landlord, together with its agents and
representatives, a right of entry in, and sufficient possession of, the Premises
to permit and assure the collection by Landlord of all Subrent. Landlord's
exercise of such right of entry and qualified possession shall not constitute an
eviction of Tenant. Unless and until this Lease has terminated, Tenant shall
have a license to exercise its right, title, and interest in and to all
Subleases and Subrent. Landlord may revoke such license, at its option, if and
only if this Lease has terminated. Upon any such revocation, Landlord may
collect Subrent directly from Subtenants, and apply the net amount collected to
the Rent. No such collection shall be, or be deemed to be, Landlord's waiver of
any terms of this Lease, acceptance of any Subtenant as Tenant, or release of
Tenant from any obligations under this Lease. Any sums Landlord collects in
excess of the net amount Landlord applies against Rent shall (so long as this
Lease has not been terminated) belong to Tenant and be promptly refunded to
Tenant (subject to the rights of any Leasehold Mortgagee).
18.3 REQUIRED PROVISIONS. Each Sublease entered into from and after
the date hereof, other than the Amtrak Sublease, shall contain provisions in
form and substance substantially as set forth below in this Section. By
executing each such Sublease, each such Subtenant shall be deemed to have agreed
to these provisions, which reflect the definitions in this Lease. All such
defined terms shall be modified in the Sublease as appropriate to reflect the
definitions in the Sublease.
All terms, covenants, and provisions of this Sublease and all
rights, remedies, and options of Subtenant under this Sublease are
and shall at all times remain fully subject and subordinate in all
respects to the Lease. If such Lease and the Leasehold Estate
terminates, then this Sublease shall terminate. In that event,
Subtenant, only at the option and request of Landlord (except as
Landlord has agreed otherwise in writing), shall attorn to Landlord
and recognize Landlord as Subtenant's direct landlord under this
Sublease. Subtenant shall execute and deliver, at any time and from
time to time, upon the request of Tenant, Landlord, any Fee
Mortgagee, or any Leasehold Mortgagee, any instrument necessary or
appropriate to evidence such attornment. Subtenant appoints each of
the foregoing as Subtenant's attorney-in-fact, irrevocably, with
full power of substitution, to execute and deliver any such
instrument. This appointment is coupled with an interest and is
irrevocable. Subtenant waives any present or future statute or rule
of law that may allow Subtenant to terminate this Sublease or to
surrender possession of the demised subpremises if the Lease
terminates. This Sublease shall not be affected in any way
whatsoever by any such termination or any proceeding for such a
termination.
18.4 CONDITIONS TO EFFECTIVENESS OF CERTAIN TRANSACTIONS. No
assignment or sublease of the entire Premises or substantially the entire
Premises shall be effective unless and
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until such assignment or sublease otherwise complies with this Lease and
Landlord shall have received: (1) an executed counterpart of the instrument of
assignment; (2) in the case of an assignment, an executed assumption of this
Lease by the assignee, in recordable form, effective as of the date of the
assignment; (3) in the case of a sublease of all or substantially all the
Premises, a copy of the executed Sublease complying with this Lease; and (4)
Notice of the identity of the assignee or Subtenant. No assignment of this Lease
or subletting of all or substantially all of the Premises except upon compliance
with the provisions of this Section shall have any validity. Landlord
acknowledges that the Amtrak Sublease complies with this paragraph.
18.5 RELEASE OF ASSIGNOR. Upon any assignment of this Lease made in
compliance with this Lease, the assignor shall be released from all obligations
of Tenant under this Lease except any obligation to hold and apply Restoration
Funds held by the assignor at the date of the assignment (unless transferred to
the assignee) and any unperformed obligations that shall have matured before
such assignment (unless assumed in writing, in recordable form, by the
assignee).
19 LEASEHOLD MORTGAGES.
19.1 TENANT'S RIGHTS. Notwithstanding anything in this Lease to the
contrary, Tenant shall have the absolute and unconditional right, without
Landlord's consent, at any time and from time to time during the Term, to:
execute and deliver one or more Leasehold Mortgage(s) encumbering this Lease and
the Leasehold Estate to any Leasehold Mortgagee, provided only that each
Leasehold Mortgage complies with the definition of such term. Any Mortgage made
by Tenant that encumbers the Leasehold Estate but violates the preceding
sentence shall be null and void and a violation of this Lease. Landlord shall
not be required to join in, or "subordinate" the Fee Estate to, any Leasehold
Mortgage. There shall be no limit on the amount or nature of any obligation
secured by a Leasehold Mortgage; the purpose for which the proceeds of any such
financing may be applied; the nature or character of any Leasehold Mortgagee;
the subsequent assignment, transfer, or hypothecation of any Leasehold Mortgage;
the creation of participation or syndication interests in or to any Leasehold
Mortgage; or any Leasehold Mortgagee's exercise of any rights or remedies
against Tenant under any Leasehold Mortgage. Any Leasehold Mortgage may secure
construction, permanent, monetary, non-monetary, purchase-money, single-asset,
multiproperty, dollar, nondollar, recourse, nonrecourse, general corporate, or
any other financing or obligations of any kind whatsoever.
19.2 LANDLORD'S ACKNOWLEDGMENT OF LEASEHOLD MORTGAGEE. Landlord
shall, upon written request, acknowledge receipt of the name and address of any
Leasehold Mortgagee (or prospective Leasehold Mortgagee) and confirm to such
party that such party is or would be, upon closing of its financing or its
acquisition of an existing Leasehold Mortgage: (1) a Leasehold Mortgagee (in
compliance with the definition of such term, including all applicable conditions
and requirements set forth in such definition) entitled to all Mortgagee
Protections and (2) an Institutional Lender, if applicable, provided that
Landlord receives reasonable proof of the foregoing. Such acknowledgment shall,
if requested, be in recordable form. Tenant may record it at Tenant's cost.
After reviewing the proof of the status of any (prospective) Leasehold
Mortgagee, if Landlord reasonably determines that any such acknowledgment
requested by Tenant or such (prospective) Leasehold Mortgagee or assignee would
be inaccurate, then
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Landlord shall promptly Notify Tenant and the (prospective) Leasehold Mortgagee
or assignee of such determination. Such Notice shall specify the reasonable
basis for Landlord's determination. Without limiting Landlord's obligations
under this paragraph, Landlord acknowledges that Landlord has received Notice of
the following Leasehold Mortgagee and the following Leasehold Mortgagee fully
qualifies as such under this Lease: ▇▇▇▇▇ Fargo Bank Northwest, N.A., having an
address for Notices at c/o Corporate Trust Services, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇, Esq.
19.3 FUTURE MODIFICATIONS. If any Leasehold Mortgagee requires any
modification of this Lease or other document to be provided under this Lease, or
if any such modification is necessary or appropriate to comply with Rating
Agency Requirements, then Landlord shall, at Tenant's or any Leasehold
Mortgagee's request, promptly execute and deliver to Tenant such instruments in
recordable form effecting such modification as such Leasehold Mortgagee or
rating agency shall require, provided that any such modification does not modify
Rent, the Term, or any security required under this Lease, and does not
otherwise materially adversely affect Landlord's rights, materially increase
Landlord's or any Fee Mortgagee's obligations, or materially decrease Tenant's
obligations under this Lease. If any prospective Leasehold Mortgagee requires
any such modification, then Landlord shall execute and deliver such
modification, in accordance with and to the extent required by this paragraph,
and place such modification in escrow with Landlord's counsel. Landlord's
counsel shall release such modification upon the closing of such prospective
Leasehold Mortgagee's loan to Tenant.
19.4 RECOGNITION; CERTAIN OBLIGATIONS. If any Successor Tenant
acquires this Lease and the Leasehold Estate through a Foreclosure Event, or any
New Tenant obtains a New Lease, then: (1) Landlord shall recognize such
Successor Tenant as Tenant under this Lease or New Tenant as Tenant under a New
Lease, as applicable; (2) all Tenant-Specific Defaults shall no longer be
Defaults; (3) New Tenant or Successor Tenant shall not be bound by any Leasehold
Impairment made without Leasehold Mortgagee's Consent; and (4) New Tenant or
Successor Tenant shall have no obligation to comply with or perform any Excised
Obligations. The preceding clauses "1" through "4" shall not limit Landlord's
rights and remedies against any former Tenant in such former Tenant's personal
capacity (i.e., not as Tenant under this Lease), to the extent that such former
Tenant may have any personal liability.
19.5 TERMINATION OF LEASEHOLD MORTGAGEE'S RIGHTS. If a Leasehold
Mortgagee is entitled to Mortgagee Protections, then such entitlement shall not
terminate unless and until such time, if any, as either (1) the Leasehold
Mortgage shall have been satisfied and discharged of record, except through a
Foreclosure Event (in which case such entitlement shall continue for 180 days
after such Foreclosure Event); (2) such Leasehold Mortgagee has consented in
writing to termination of its Mortgagee Protections; or (3) after Landlord has
complied with all Mortgagee Protections, Landlord has validly terminated this
Lease, no Leasehold Mortgagee has validly requested (and is entitled to) a New
Lease, and the New Lease Option Period has expired. Upon the occurrence of "3,"
the obligations formerly secured by Leasehold Mortgage(s) shall no longer be
secured by Leasehold Mortgagees.
20 OPERATIONAL PROTECTIONS FOR LEASEHOLD MORTGAGEES.
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Notwithstanding anything to the contrary in this Lease, if Tenant at any
time or from time to time enters into any Leasehold Mortgage, then:
20.1 LEASEHOLD IMPAIRMENTS. Neither Landlord nor Tenant shall make,
and Landlord and Tenant shall not agree to, any Leasehold Impairment without
Leasehold Mortgagee's Consent. Any Leasehold Impairment made or entered into
without Leasehold Mortgagee's Consent shall not be effective and shall not bind
Leasehold Mortgagee or any New Tenant or Successor Tenant. Nothing in this
paragraph limits Landlord's right to terminate this Lease after an Event of
Default and the expiration of all Leasehold Mortgagee's Cure Rights without cure
of such Event of Default, subject however to (1) provisions of this Lease that
limit Landlord's right to terminate this Lease because of Tenant-Specific
Default(s) or certain Non-Monetary Defaults; and (2) the right of a Leasehold
Mortgagee to obtain a New Lease.
20.2 CERTAIN PROCEEDINGS. In the event of any arbitration,
appraisal, litigation, mediation, or other dispute resolution proceeding,
including any action by Landlord to enforce any rights and remedies under, or to
terminate, this Lease; any proceeding to determine Rent or any component of
Rent; or any proceeding to recover, determine, or apply any Loss Proceeds:
20.2.1 NOTICE. If Landlord initiated such proceeding, and
promptly after Landlord becomes aware of any such proceeding not initiated by
Landlord, Landlord shall promptly Notify every Leasehold Mortgagee of the
commencement of such proceeding. With such Notice, Landlord shall enclose copies
of all Dispute Resolution Documents related to such proceeding to the extent
then given or received by Landlord. Landlord shall give every Leasehold
Mortgagee copies of all additional Dispute Resolution Documents for such
proceeding when and as Landlord gives or receives them.
20.2.2 PARTICIPATION. Senior Leasehold Mortgage may
participate in such proceeding, at no additional cost to Landlord. At Senior
Leasehold Mortgagee's option, such participation shall be to the exclusion of
(and in place of participation by) Tenant. Such participation shall, to the
extent required by Senior Leasehold Mortgagee, include: (1) receiving copies of
all Dispute Resolution Documents at the same time they are served upon or
delivered to Landlord or Tenant; (2) filing any Dispute Resolution Documents
contemplated or permitted by such proceedings; and (3) receiving Notice of,
attending, and participating in all hearings, meetings, and other sessions or
proceedings.
20.3 COPIES OF NOTICES. If Landlord gives any Notice to Tenant,
then Landlord shall at the same time (and by a means permitted by this Lease)
give a copy of such Notice to all Leasehold Mortgagees. No Notice to Tenant
shall be effective unless and until so given to all Leasehold Mortgagees. No
Default, Event of Default, termination of this Lease, or other exercise of
Landlord's rights or remedies predicated upon giving of Notice to Tenant shall
be deemed to have occurred or arisen unless Landlord has given like Notice to
each Leasehold Mortgagee as this paragraph requires. Any such Notice shall
describe in reasonable detail the alleged Default or other event allegedly
entitling Landlord to exercise any rights or remedies of Landlord.
20.4 GOVERNMENTAL AND OTHER NOTICES. If Landlord receives any notice
from any Government or insurance carrier relating to the Premises, including any
notice asserting any
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noncompliance with Law or insurance requirements, or otherwise indicating the
possible need for any action relating to the Premises, then Landlord shall
promptly give a copy of such notice to each Leasehold Mortgagee.
20.5 TENANT'S RIGHTS, GENERALLY. Any Leasehold Mortgagee may at any
time exercise any or all rights or remedies of Tenant under this Lease.
21 LEASEHOLD MORTGAGEES' NOTICE AND OPPORTUNITY TO CURE.
Notwithstanding anything to the contrary in this Lease, if Tenant at any
time or from time to time enters into any Leasehold Mortgage, and the Leasehold
Mortgagee or Tenant has given Landlord Notice of such Leasehold Mortgage, then:
21.1 TENANT'S CURE PERIOD EXPIRATION NOTICE; RIGHT TO CURE. If a
Default or alleged Default occurs and Tenant does not cure it within the cure
period under this Lease, then Landlord shall promptly give each Leasehold
Mortgagee a Tenant's Cure Period Expiration Notice. If Landlord fails to give
any or all Leasehold Mortgagee(s) a Tenant's Cure Period Expiration Notice then
Landlord shall not incur any liability to Tenant or any Leasehold Mortgagee.
Landlord's right to exercise any rights or remedies under this Lease shall
(except as this Lease otherwise expressly provides) be deferred until: (a)
Landlord has given all Leasehold Mortgagees a Tenant's Cure Period Expiration
Notice; and (b) all Leasehold Mortgagee's Cure Rights have expired without
exercise. Any Leasehold Mortgagee shall have the right, but not the obligation,
to perform any obligation of Tenant under this Lease and to cure any Default.
Landlord shall accept performance by or at the instigation of a Leasehold
Mortgagee in fulfillment of Tenant's obligations, for the account of Tenant and
with the same force and effect as if performed by Tenant, provided that such
performance is rendered within the cure period that applies to a Leasehold
Mortgagee under this Lease.
21.2 ADDITIONAL TIME FOR LEASEHOLD MORTGAGEE'S CURE RIGHTS. If any
Default occurs, then any Leasehold Mortgagee shall have the same cure period, if
any, available to Tenant under this Lease, plus the additional time provided for
below (regardless of the original time fixed for performance by Tenant), within
which to take (if such Leasehold Mortgagee so elects; and no Leasehold Mortgagee
shall have any duty to undertake any Leasehold Mortgagee's Cure of any kind)
whichever of the actions set forth below shall apply to such Default:
21.2.1 MONETARY DEFAULTS. In the case of a Monetary Default,
Leasehold Mortgagee may at its option cure such Default within a cure period
consisting of Tenant's cure period under this Lease extended through the date 30
days after such Leasehold Mortgagee shall have received Tenant's Cure Period
Expiration Notice for such Monetary Default. If the amount of any Monetary
Default has not been finally determined (for example, because of a dispute
between Landlord and Tenant regarding the amount of any Rent), then in place of
curing such Monetary Default a Leasehold Mortgagee that is an Institutional
Lender may instead (1) cure such Monetary Default to the extent the amount of
such Monetary Default is not in dispute and (2) undertake in writing that such
Leasehold Mortgagee shall cure the remaining disputed portion of such Monetary
Default within 30 days after the dispute shall have been resolved. The parties
shall then cooperate to resolve such dispute promptly in accordance with this
Lease. Pending
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such resolution, Landlord shall continue to suspend any exercise of remedies on
account of the disputed Default.
21.2.2 NON-MONETARY DEFAULTS CURABLE WITHOUT POSSESSION. In
the case of any Non-Monetary Default that a Leasehold Mortgagee can reasonably
cure without obtaining possession of the Premises (excluding in any event a
Tenant-Specific Default), provided that Leasehold Mortgagee has cured all
Monetary Defaults, Leasehold Mortgagee may at its option: (1) within a period
consisting of Tenant's cure period for such Non-Monetary Default, extended
through the date 90 days after Leasehold Mortgagee received the Tenant's Cure
Period Expiration Notice for such Non-Monetary Default, advise Landlord of
Leasehold Mortgagee's intention to take all reasonable steps necessary to cure
such Non-Monetary Default; (2) commence the cure of such Non-Monetary Default
within the extended period in clause "1"; and then (during and after such
extended period) diligently prosecute to completion the cure of such
Non-Monetary Default, subject to Unavoidable Delay; and (3) complete such remedy
within a reasonable time under the circumstances, subject to Unavoidable Delay.
21.2.3 DEFAULTS CURABLE ONLY BY OBTAINING POSSESSION AND
TENANT-SPECIFIC DEFAULTS. In the case of (1) any Non-Monetary Default that a
Leasehold Mortgagee cannot reasonably cure without possession of the Premises
(including any Default relating to any Alterations) or (2) any Tenant-Specific
Default, Leasehold Mortgagee shall be entitled (but not required) to do the
following (but only so long as, for any Defaults other than those referred to in
this paragraph ["1" and "2"], such Leasehold Mortgagee has exercised or is
exercising, within the applicable periods, the applicable Leasehold Mortgagee's
Cure Rights):
A. DURING CURE PERIOD. At any time during the cure
period (if any) that applies to Tenant, extended through the date 90 days after
such Leasehold Mortgagee's receipt of the Tenant's Cure Period Expiration Notice
for such Default, or if no cure period applies to Tenant, then within 90 days
after receiving Notice of the Non-Monetary Default, Leasehold Mortgagee may
initiate proceedings, and (subject to any stay in any Bankruptcy Proceedings
affecting Tenant, or any injunction, so long as such stay or injunction has not
been lifted) then diligently prosecute the same to completion (but not
necessarily within such 90-day period) subject to Unavoidable Delay, to obtain
Control of the Premises.
B. FURTHER CURE AFTER CONTROL OF PREMISES. Upon
obtaining Control of the Premises (whether before or after the expiration of any
cure period that otherwise applies), Leasehold Mortgagee or Successor Tenant
shall then be entitled (but not required) to proceed with reasonable diligence
to cure such Non-Monetary Defaults as are then reasonably susceptible of being
cured by such Leasehold Mortgagee or Successor Tenant (excluding Tenant-Specific
Defaults, which neither Leasehold Mortgagee nor Successor Tenant need cure at
any time), within (a) 30 days after such Leasehold Mortgagee or Successor Tenant
shall have obtained Control of the Premises, subject to Unavoidable Delay or (b)
if such Non-Monetary Default is not reasonably susceptible of cure within such
period, then within a reasonable time under the circumstances. A Leasehold
Mortgagee or Successor Tenant having Control of the Premises shall not be bound
by any deadline for completion of any construction or alterations, or other
performance, required of Tenant under this Lease, provided that such Leasehold
Mortgagee or Successor Tenant shall with reasonable diligence prosecute
completion of same and shall cure all Monetary Defaults within the period
provided for under this Lease for such cure.
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21.3 MULTIPLE DEFAULTS. If, at any time, multiple Defaults exist,
then Leasehold Mortgagee's Cure Rights, and Landlord's rights and remedies,
shall apply separately for each such Default. If any Default of any type occurs
and all Leasehold Mortgagee's Cure Rights for such Default have expired without
exercise, then except where this Lease expressly provides otherwise Landlord may
exercise its rights and remedies for such Default even if a Leasehold Mortgagee
is endeavoring to cure some other Default.
21.4 EFFECT OF CURE. A Leasehold Mortgagee shall not be required to
continue to exercise Leasehold Mortgagee's Cure Rights or otherwise proceed to
obtain or to exercise Control of the Premises if and when the Default that such
Leasehold Mortgagee was attempting to cure shall have been cured. Upon such cure
and the cure of any other Defaults in accordance with this Lease, this Lease
shall continue in full force and effect as if no Default(s) had occurred. Even
if a Leasehold Mortgagee has commenced Leasehold Mortgagee's Cure, such
Leasehold Mortgagee may abandon or discontinue Leasehold Mortgagee's Cure at any
time, without liability to Landlord or otherwise. Mortgagee's exercise of
Leasehold Mortgagee's Cure Rights shall not be deemed an assumption of this
Lease in whole or in part. If any Leasehold Mortgagee cures any Default, then
such Leasehold Mortgagee shall not be deemed to be subrogated to, or otherwise
entitled to the benefits of, any rights or remedies of Landlord under this
Lease.
21.5 QUIET ENJOYMENT. So long as the period for a Leasehold
Mortgagee to exercise Leasehold Mortgagee's Cure Rights for any Default has not
expired, Landlord shall not (1) re-enter the Premises on account of such Default
(but this shall not limit any other right of access to the Premises); (2) give
any Notice terminating or electing to terminate this Lease; or (3) bring a
proceeding on account of such Default to (w) dispossess Tenant, Subtenants
and/or other occupants of the Premises, (x) re-enter the Premises, (y) terminate
this Lease or the Leasehold Estate, or (z) otherwise (except as expressly
permitted by this paragraph) exercise any other rights or remedies under this
Lease by reason of such Default. Nothing in the Mortgagee Protections shall,
however, be construed to either (i) extend the Term beyond the Expiration Date
(including Renewal Terms) that would have applied absent a Default or (ii)
require any Leasehold Mortgagee to cure any Tenant-Specific Default as a
condition to preserving this Lease or to obtaining a New Lease (but this shall
not limit a Leasehold Mortgagee's obligation to seek to obtain Control of the
Premises, and then consummate a Foreclosure Event, by way of the exercise of
Leasehold Mortgagee's Cure Rights, if Leasehold Mortgagee desires to preclude
Landlord from terminating this Lease on account of a Tenant-Specific Default).
21.6 LEASEHOLD MORTGAGEE'S RIGHT TO ENTER. Landlord and Tenant
authorize each Leasehold Mortgagee to enter the Premises, and take any actions,
as reasonably necessary (in the reasonable determination of such Leasehold
Mortgagee) to effect Leasehold Mortgagee's Cure upon reasonable oral notice to
Tenant and in accordance with Tenant's reasonable instructions. In entering the
Premises to exercise Leasehold Mortgagee's Cure Rights, a Leasehold Mortgagee
shall not unreasonably interfere with lawful activities on the Premises.
21.7 PAYMENTS BY LEASEHOLD MORTGAGEE. Any payment made, or
performance rendered, by a Leasehold Mortgagee to Landlord to cure any claimed
Default shall be deemed to have been made or rendered "under protest" and
without prejudice to Tenant's or Leasehold
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Mortgagee's rights and remedies if Landlord's claim of a Default shall be
determined to have been erroneous.
22 LEASEHOLD MORTGAGEE'S RIGHT TO A NEW LEASE.
If the Expiration Date occurs before the Scheduled Expiration Date for any
reason (including (a) as the result of any Default or rejection in a Bankruptcy
Proceeding, and (b) Leasehold Mortgagee's failing to timely exercise its
Leasehold Mortgagee's Cure Rights), but excluding any termination, with
Leasehold Mortgagee's Consent, because of a Loss, then (in addition to any other
or previous Notice that this Lease requires Landlord to give to a Leasehold
Mortgagee) Landlord shall, within ten Business Days, Notify all Leasehold
Mortgagees of such termination. Upon a Leasehold Mortgagee's request given
within the New Lease Option Period, Landlord shall enter into a New Lease with
New Tenant, provided that on the New Lease Delivery Date New Tenant: (1) pays
Landlord all sums then due under this Lease as if this Lease had not terminated;
and (2) agrees to cure with reasonable diligence all then-uncured Non-Monetary
Defaults (except Tenant-Specific Defaults), within a reasonable period after the
New Lease Delivery Date. If Landlord fails to enter into such a New Lease when
and as required to do so, then Landlord shall nevertheless be deemed to have
done so as this Lease requires, but this shall not limit Landlord's obligations.
In no event shall any Leasehold Mortgagee or New Tenant be required to cure any
Tenant-Specific Default as a condition to obtaining or retaining a New Lease or
otherwise. Nothing in this Lease shall prevent Landlord from terminating this
Lease in accordance with its terms (after compliance with all Leasehold
Mortgagee's Cure Rights), but any such termination shall thereafter be subject
to Leasehold Mortgagees' rights to obtain a New Lease (even if any Leasehold
Mortgagee could have prevented such termination by exercising its Leasehold
Mortgagee's Cure Rights). The following additional provisions shall apply to any
New Lease:
22.1 DOCUMENTATION AND PRIORITY. Any New Lease, any memorandum of a
New Lease, and the Leasehold Estate under any New Lease shall be subject to no
prior right, lien, encumbrance, or other interest in the Fee Estate except
Permitted Exceptions. The immediately preceding sentence shall be
self-executing. On the New Lease Delivery Date (or promptly after request),
Landlord shall, if requested, at New Tenant's expense, execute and deliver such
documents (including a new Memorandum of Lease, tax returns, and affidavits) as
New Tenant shall reasonably request to enable New Tenant to obtain title
insurance for the New Lease (including ownership of the improvements demised
under the New Lease), subject only to Permitted Exceptions. Any New Lease and
New Tenant's Leasehold Estate under any New Lease shall be subject to: (a) the
rights of all Persons in possession, except to the extent resulting from
Landlord's violations of this Lease; (b) any matters that encumbered the
Leasehold Estate and were senior and prior to the Leasehold Mortgage held by the
Leasehold Mortgagee that requested the New Lease; and (c) Permitted Exceptions.
New Tenant shall own and hold any New Lease (and the Leasehold Estate under the
New Lease) free and clear of any claims of: (1) any previous Tenant, including
the Tenant originally named in this Lease; and (2) except to the extent that New
Tenant gives Landlord Notice otherwise, any holder of any lien that encumbered
the Leasehold Estate before this Lease was terminated, but whose lien was junior
and subordinate to that of the Leasehold Mortgagee that requested the New Lease.
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22.2 ADJUSTMENT FOR NET INCOME. On the New Lease Delivery Date,
Landlord shall pay New Tenant an amount equal to the net operating income that
Landlord received from the Premises (gross income from Subleases and other
operations conducted at the Premises, less Rent and reasonable operating
expenses expended or incurred by Landlord) from the Expiration Date to the New
Lease Delivery Date, together with interest at the Prime Rate from the date
Landlord received each (net) payment on account of such net operating income,
provided that New Tenant simultaneously pays Landlord (or credits Landlord an
amount equal to) all sums required to be paid Landlord under this Lease upon
execution of such New Lease (including any Rent due but unpaid), and not
otherwise paid by Landlord from gross income of the Premises.
22.3 PENDENCY OF DISPUTE. If Landlord and New Tenant disagree
regarding any payment due Landlord as a condition to execution of a New Lease,
then New Tenant (if an Institutional Lender acting for an Institutional Lender)
shall not be required to pay the disputed portion of such payment (as a
condition to obtaining a New Lease) provided that such New Tenant: (1) on the
New Lease Delivery Date pays Landlord the full amount not in controversy and (2)
agrees in writing to pay any additional sum ultimately determined to be due
promptly upon such determination with interest at the Prime Rate from the New
Lease Delivery Date. The parties shall cooperate to determine any disputed
amount promptly in accordance with the New Lease.
22.4 ASSIGNMENT OF CERTAIN ITEMS. On the New Lease Delivery Date,
Landlord shall assign without recourse to New Tenant Landlord's entire right,
title, and interest in and to all: (1) moneys (including Loss Proceeds), if any,
then held by, or payable to, Landlord that Tenant (or Leasehold Mortgagee) would
have been entitled to receive but for Tenant's Default and Landlord's
termination of this Lease; (2) leases affecting any portion of the Premises
(which leases, upon such assignment by Landlord to New Tenant, shall become
Subleases arising from the Leasehold Estate under the New Lease); and (3)
security deposits of Subtenants, except in each case ("1" through "3") to the
extent directed otherwise by New Tenant.
22.5 LANDLORD'S COSTS AND EXPENSES. If a Leasehold Mortgagee
requires Landlord to enter into a New Lease, then on the New Lease Delivery Date
(and as a condition to Landlord's delivery of the New Lease) such Leasehold
Mortgagee shall pay all reasonable expenses, including transfer taxes and Legal
Costs, incurred by Landlord in connection with any Default and termination of
this Lease, recovery of possession of the Premises, and preparation, execution,
and delivery of the New Lease, any memorandum of the New Lease requested by New
Tenant, and any other documents that New Tenant reasonably requests to enable
New Tenant to obtain title insurance for the New Lease.
22.6 SURVIVAL. All rights of any Leasehold Mortgagee, and
obligations of Landlord, regarding a New Lease shall survive termination of this
Lease.
23 BANKRUPTCY.
23.1 AFFECTING TENANT. If Tenant (as debtor in possession) or a
trustee in bankruptcy for Tenant rejects this Lease in any Bankruptcy
Proceeding, then such rejection shall be deemed Tenant's assignment of this
Lease and the Leasehold Estate to a Successor Tenant (to be designated by Senior
Leasehold Mortgagee within a reasonable period after request), in the
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nature of an assignment in lieu of foreclosure, subject to all Leasehold
Mortgages. Such deemed assignment shall not terminate this Lease, but after such
assignment the assignor's liability under this Lease shall not exceed the
liability that would have existed if such assignor had rejected this Lease. Each
Leasehold Mortgagee shall continue to have all the rights of a Leasehold
Mortgagee as if the Bankruptcy Proceeding had not occurred, unless such
Leasehold Mortgagee shall disapprove such deemed assignment by Notice to
Landlord within 30 days after such Leasehold Mortgagee received Notice of
rejection of this Lease in Bankruptcy Proceedings. If any court determines that
this Lease terminated notwithstanding the foregoing deemed assignment, then: (a)
the effective date of such termination shall constitute an Expiration Date; and
(b) Leasehold Mortgagee(s) shall remain entitled to a New Lease as provided in
this Lease, if Leasehold Mortgagee(s) timely request(s) such New Lease during
the New Lease Option Period.
23.2 AFFECTING LANDLORD. If Landlord (as debtor in possession) or a
trustee in bankruptcy for Landlord rejects this Lease in any Bankruptcy
Proceeding affecting Landlord, then:
23.2.1 ASSIGNMENT. Landlord and Tenant acknowledge (but
Landlord does not represent or warrant) that to the extent provided in any
Leasehold Mortgage: (a) Leasehold Mortgagee's collateral includes Tenant's
rights under 11 U.S.C.ss.365(h); and (b) all such rights can be and have been
validly and effectively assigned to Leasehold Mortgagee.
23.2.2 TENANT'S ELECTION. Tenant hereby elects not to treat
this Lease as terminated under 11 U.S.C. ss. 365(h). Tenant has no right, power,
or authority to change such election, or to elect to treat this Lease as
terminated, except with Leasehold Mortgagee's Consent. If Tenant purports,
without Leasehold Mortgagee's Consent, to elect to treat this Lease as
terminated, then such purported election and purported termination shall be
null, void, and of no force or effect. Leasehold Mortgagee shall have the right,
to the exclusion of Tenant, to make any election and exercise any rights of
Tenant under 11 U.S.C. ss. 365(h)(1). Provided that a Leasehold Mortgagee shall
have received Notice of Landlord's Bankruptcy Proceeding simultaneously with
Notice to Tenant, such Leasehold Mortgagee's rights under the preceding sentence
must be exercised, if at all, subject to such time limits and requirements as
would apply to Tenant, but as against Leasehold Mortgagee every such time period
shall be extended by 30 days.
23.2.3 CONTINUATION OF LEASE. If Tenant purports, without
Leasehold Mortgagee's Consent, to treat this Lease as terminated, then
(notwithstanding such purported election by Tenant) Tenant shall be deemed to
have elected to continue this Lease pursuant to 11 U.S.C. ss. 365(h)(1)(A)(ii).
Notwithstanding any such purported termination, this Lease shall not be deemed
to have been terminated, and shall continue in effect without change on all the
same terms and conditions, including those regarding Rent and Mortgagee
Protections. Tenant and its successors (including Leasehold Mortgagees, any New
Tenant, and any Successor Tenant) shall then be entitled to offset against Rent
the Post-Rejection Offset Amount, subject to the terms of this Lease regarding
any such offset.
23.2.4 CONTINUATION OF LEASEHOLD MORTGAGES. The lien of any
Leasehold Mortgage that existed before rejection of this Lease shall extend to
Tenant's continuing possessory and other rights under 11 U.S.C. ss. 365(h) in
the Premises and this Lease after such
45
rejection, with the same priority as such lien would have enjoyed with respect
to the Leasehold Estate had such rejection not taken place.
23.2.5 POST-REJECTION OFFSET AMOUNTS. If Tenant desires to
reduce any Rent by any Post-Rejection Offset Amount, then Tenant shall, on or
within ten Business Days after the date when any such Rent becomes due, deliver
to Landlord a Notice setting forth the Post-Rejection Offset Amount, the reason
for it, and an itemization in reasonable detail of Tenant's damages and costs
arising from Landlord's nonperformance of the covenant(s) in this Lease that
gave rise to such Post-Rejection Offset Amount. Such Notice shall not be
effective unless joined in by Senior Leasehold Mortgagee. Landlord shall be
deemed to have irrevocably accepted such Post-Rejection Offset Amount unless,
within ten Business Days after Tenant shall have given Notice of the
Post-Rejection Offset Amount (as determined by Tenant), Landlord shall give
Notice to Tenant and each Leasehold Mortgagee stating: (1) Landlord disputes the
Post-Rejection Offset Amount; (2) the reasonable basis for such dispute; and (3)
the Post-Rejection Offset Amount, if any, that Landlord would accept. If, ten
Business Days after receipt of such Notice, Tenant has not paid Landlord an
amount equal to the difference between the Post-Rejection Offset Amount as
determined by Tenant and the Post-Rejection Offset Amount as determined by
Landlord (or if Landlord shall not have proposed such an amount, then Tenant
shall not have paid Landlord the entire Post-Rejection Offset Amount as
determined by Tenant), then Landlord may commence a proceeding in the United
States Bankruptcy Court in which Landlord's case under the Bankruptcy Code is
then pending, or if such case has been closed then in any court of competent
jurisdiction in the State, to determine the proper Post-Rejection Offset Amount.
Landlord shall give each Leasehold Mortgagee simultaneous copies of all
pleadings, motions, and other papers Landlord files in any such action.
Leasehold Mortgagee shall have the right to intervene in any such action and, at
Leasehold Mortgagee's option, the right to control any such action to the
exclusion of Tenant. If, as of the date 30 days after such court enters a final
and nonappealable order or judgment declaring that Tenant must pay Landlord any
amount previously offset, Tenant has not paid such amount to Landlord, then
Landlord shall have all the rights and remedies available to it under this Lease
or otherwise at law in respect of a Monetary Default, subject in each case to
Leasehold Mortgagee's Cure Rights. Except as described in the preceding
sentence, Tenant's failure to pay any disputed Rent on account of a
Post-Rejection Offset Amount shall not constitute a Default.
24 EQUIPMENT LIENS.
24.1 TENANT'S RIGHTS. If at any time or from time to time Tenant
desires to enter into or grant any equipment lien and provided that no uncured
Event of Default exists, then upon Tenant's request Landlord shall enter into
(and shall cause every Fee Mortgagee to enter into) such reasonable and
customary documentation as Tenant shall reasonably request and which is
otherwise on commercially reasonable terms and conditions.
24.2 REQUIRED PROVISIONS FOR EQUIPMENT LIENS. If Tenant enters into
any equipment financing, then Tenant shall: (i) not file (or cause or permit to
be filed) a lien against the Premises or any part of the Premises and (ii) cause
to be inserted in the documents for such lien a provision to the following
effect:
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Notwithstanding anything to the contrary herein, this chattel
mortgage, conditional sales agreement, title retention agreement or
security agreement shall not create or be filed as a lien against
the land, building and Landlord's improvements constituting the real
property in which the equipment covered hereby are to be located or
installed.
25 QUIET ENJOYMENT; TITLE TO CERTAIN PREMISES; CERTAIN AGREEMENTS.
25.1 QUIET ENJOYMENT. Landlord covenants that, so long as this Lease
is in full force and effect and has not been terminated, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises for the Term, subject to
the terms of this Lease and the Reserved Rights, without molestation or
disturbance by or from Landlord or anyone claiming by or through Landlord or
having title to the Premises paramount to Landlord, and free of any encumbrance
created or suffered by Landlord, except Permitted Exceptions.
25.2 ACCESS AND INSPECTION. Notwithstanding anything to the contrary
in this Lease, Landlord and its agents, representatives, and designees shall
have the right to enter the Premises upon reasonable notice to Tenant during
regular business hours, and in accordance with Tenant's reasonable instructions,
solely to: (a) ascertain whether Tenant is complying with this Lease; (b) cure
Tenant's Defaults of which Landlord has given Tenant Notice; (c) inspect the
Premises and any Construction Work; (d) perform such tests, borings, and other
analyses as Landlord shall determine may be necessary or appropriate relating to
the (non)compliance of the Premises with any Environmental Law or possible
existence of Hazardous Substances on, at, or under the Premises; (e) show the
Premises to prospective purchasers, Transferees, or Fee Mortgagees; (f) perform
any and all obligations required under or by any of the documents, instruments
or agreements with LIRR and/or NJT; or (g) exercise its rights under this Lease.
Landlord shall Indemnify Tenant against any claims arising from Landlord's entry
upon the Premises under this paragraph or any other provision of this Lease
permitting Landlord to enter the Premises (except upon termination of this Lease
or upon Landlord's exercise of its right of re-entry upon an Event of Default
under this Lease).
25.3 TITLE TO IMPROVEMENTS AND FF&E. Notwithstanding anything to the
contrary in this Lease, all improvements, Equipment, and FF&E located in, on, or
at the Premises or otherwise constituting part of the Premises shall at all
times during the Term be owned by, and shall belong to, Landlord. All benefits
and burdens of ownership of the foregoing, including title, depreciation, tax
credits, and all other tax items, shall be and remain in Landlord during the
Term.
25.4 SINGLE PURPOSE ENTITY. Tenant: (a) shall at all times be and
remain a Single Purpose Entity; and (b) represents and warrants that, as of the
Commencement Date, it is a Single Purpose Entity.
26 EVENTS OF DEFAULT; REMEDIES.
26.1 DEFINITION OF "EVENT OF DEFAULT." An "EVENT OF DEFAULT" shall
mean the occurrence of any one or more of the following, unless resulting
entirely from any default by the Subtenant under the Amtrak Sublease:
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26.1.1 MONETARY DEFAULT. If a Monetary Default shall occur and
shall continue for 10 Business Days after Landlord has Notified Tenant of such
Monetary Default, specifying in reasonable detail the amount of money not paid
and the nature of each such payment.
26.1.2 BANKRUPTCY OR INSOLVENCY. If Tenant becomes bankrupt or
insolvent, or makes an assignment for the benefit of creditors, ceases to do
business as a going concern, ceases to pay its debts as they become due or
admits in writing that it is unable to pay its debts as they become due, or
becomes a "debtor," whether voluntarily or involuntarily, under Bankruptcy Law,
or is otherwise the subject of any similar proceeding under state or federal law
(unless, in the case of an involuntary petition, the same is contested with
diligence and continuity and dismissed within 150 days); or a custodian or
trustee is appointed to take possession of, or an attachment, execution or other
judicial seizure is made with respect to, substantially all of Tenant's assets
or Tenant's interest in this Lease (unless such appointment, attachment,
execution or other seizure was involuntary and is contested with diligence and
continuity and is vacated and discharged within 150 days).
26.1.3 NON-MONETARY DEFAULT. If any Non-Monetary Default (not
listed above) shall occur and shall continue and not be remedied by Tenant
within 45 days after Landlord shall have delivered to Tenant a Notice describing
the same in reasonable detail, or, in the case of a Non-Monetary Default that
cannot with due diligence be cured within 45 days from such Notice, if Tenant
shall not (x) within 45 days from Landlord's Notice advise Landlord of Tenant's
intention to take all reasonable steps necessary to remedy such Non-Monetary
Default; (y) duly commence the cure of such Non-Monetary Default within such
period, and then diligently prosecute to completion the remedy of the
Non-Monetary Default; and (z) complete such remedy within a reasonable time
under the circumstances (not necessarily limited to 45 days).
26.2 REMEDIES. If an Event of Default occurs, then Landlord shall,
at Landlord's option, have any or all of the following remedies, all of which
shall be cumulative (so that Landlord's exercise of one remedy shall not
preclude Landlord's exercise of another remedy), in addition to such other
remedies as may be available at law or in equity or under any other terms of
this Lease. Landlord's remedies shall include:
26.2.1 TERMINATION OF TENANT'S RIGHTS. Landlord may terminate
Tenant's right to possession of the Premises by any lawful means, in which case
this Lease and the Term shall terminate (and such date of termination shall be
the Expiration Date) and Tenant shall immediately surrender possession of the
Premises to Landlord.
26.2.2 TAKING OF POSSESSION. Landlord may re-enter and take
possession of the Premises with process of law, whether by summary proceedings
or otherwise, and remove Tenant, with or without having terminated this Lease,
and without thereby being liable for damages or guilty of trespass. This is
intended to constitute an express right of re-entry on Landlord's part. Except
as expressly provided herein or prohibited by applicable law, Tenant, for and on
behalf of itself and all persons claiming by, through or under Tenant, expressly
waives any right to service of notice of intention to re-enter provided in any
Law and any and all right of redemption provided by any law or statute now or
hereafter enacted or otherwise, or re-entry or
48
repossession or to restore the operation of this Lease in case Tenant shall be
dispossessed by a judgment or by warrant of any court or judge or in case of
re-entry or repossession by Landlord or in case of any expiration or termination
of this Lease. No re-entry by Landlord, whether had or taken under summary
proceedings or otherwise, shall absolve or discharge Tenant from liability under
this Lease. The terms "enter," "re-enter," "entry," and "re-entry," as used in
this Lease, are not restricted to their technical legal meaning.
26.2.3 SUITS BEFORE EXPIRATION DATE. Landlord may ▇▇▇ for
damages or to recover Rent from time to time at Landlord's election.
26.2.4 RECEIPT OF MONEYS. No receipt of moneys by Landlord
from Tenant after termination of this Lease, or after the giving of any notice
of termination of this Lease, shall reinstate, continue or extend the Term of
this Lease or affect any notice theretofore given to Tenant, or operate as a
waiver of the right of Landlord to enforce the payment of Rent payable by Tenant
hereunder or thereafter falling due, or operate as a waiver of the right of
Landlord to recover possession of the Premises by proper remedy, except as this
Lease expressly states otherwise, it being agreed that after service of notice
to terminate this Lease or the commencement of suit or summary proceedings, or
after final order or judgment for the possession of the Premises, Landlord may
demand, receive and collect any moneys due or thereafter falling due without in
any manner affecting such notice, proceeding, order, suit or judgment, all such
moneys collected being deemed payments on account of the use and occupation of
the Premises or, at the election of Landlord, on account of Tenant's liability
hereunder.
26.2.5 NO WAIVER. No failure by Landlord to insist upon the
strict performance of any covenant, agreement, term or condition of this Lease
or to exercise any right or remedy consequent upon a Default in such
performance, and no acceptance of full or partial Rent during the continuance of
any such Default, shall constitute a waiver of any such Default or of such
covenant, agreement, term or condition. No covenant, agreement, term or
condition of this Lease to be performed or complied with by Tenant, and no
default thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord. No waiver of any Default shall affect or alter
this Lease, but each and every covenant, agreement, term and condition of this
Lease shall continue in full force and effect with respect to any other then
existing or subsequent Default of such covenant, agreement, term or condition of
this Lease.
26.2.6 SECURITY DEVICES. Landlord may change the locks and
other security devices providing admittance to the Premises.
26.2.7 CONDITIONAL LIMITATION. Landlord may serve upon Tenant
a written 30-day notice of cancellation and termination of this Lease. Upon the
expiration of such 30-day period, this Lease and the Term shall automatically
and without any action by anyone terminate, expire and come to an end, by the
mere lapse of time, as fully and completely as if the expiration of such 30-day
period were the Expiration Date. The passage of such 30-day period constitutes
the limit beyond which Tenant's tenancy no longer exists. Tenant shall then quit
and surrender the Premises to Landlord but remain liable as this Lease provides.
It is a conditional limitation of this Lease that the Term shall terminate and
expire as set forth in this paragraph. This paragraph is intended to establish a
conditional limitation and not a condition subsequent.
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Nothing in this paragraph shall limit Landlord's right to commence and prosecute
a summary dispossess proceeding under RPAPL Article 7.
26.2.8 DAMAGES. Landlord may recover from Tenant all damages
incurred by Landlord by reason of Tenant's Default, including the reasonable
costs of recovering possession, reletting the Premises, and any and all other
damages legally recoverable by Landlord, together with reasonable out of pocket
costs and expenses incurred by Landlord, including Legal Costs and bank fees for
checks returned by the bank. Such damages shall include, at Landlord's election,
either (a) the present value, calculated at a discount rate equal to 4% per
annum, of the excess of the total Fixed Rent under this Lease over the fair
market rental value of the Premises for the balance of the Term; or (b) the Rent
payable to Landlord provided for in this Lease, when and as due and payable
under this Lease, less (in the case of this clause "b" only) Landlord's actual
proceeds of reletting net of Landlord's actual reasonable costs of reletting.
Landlord may recover such damages at any time after Tenant's default, including
after expiration of the Term. Notwithstanding anything in Law to the contrary,
(x) Landlord shall not be required to commence separate actions to enforce
Tenant's obligations with respect to each month's Rent not paid, or each month's
accrual of damages on account of Tenant's Default, but may bring and prosecute a
single combined action for all such Rent and damages; and (y) Landlord shall
have no right to recover any consequential damages by reason of Tenant's
Default.
26.2.9 INJUNCTION OF BREACHES. Whether or not an Event of
Default has occurred, Landlord shall be entitled to obtain a court order
enjoining Tenant from continuing conduct constituting a breach or that threatens
to constitute a breach of Tenant's covenants in this Lease. Tenant specifically
and expressly acknowledges that damages would not constitute an adequate remedy
for Tenant's breach of any non-monetary covenant contained in this Lease.
26.2.10 CONTINUE LEASE. Landlord may at Landlord's option
maintain Tenant's right to possession. In that case, this Lease shall continue
in effect and Landlord shall be entitled to continue to enforce it, including
the right to collect Rent when due and the right to any remedies for nonpayment.
26.2.11 RESTORATION FUNDS. Upon any termination of this Lease,
to the extent that Landlord or Depository then holds any Restoration Funds, they
shall be applied solely as directed by Landlord, including as a payment to
Landlord on account of any damages or other sums then payable to Landlord.
26.3 PROCEEDS OF RELETTING. Landlord shall apply any proceeds of
any reletting as follows, without duplication:
26.3.1 LANDLORD'S COSTS. First, to pay to itself the cost and
expense of terminating this Lease, re-entering, retaking, repossessing,
repairing, altering and/or completing construction of any improvements, or any
portion thereof, and the cost and expense of removing all persons and Premises
therefrom, including in such costs reasonable and customary brokerage
commissions and Legal Costs and Default Interest on the foregoing;
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26.3.2 PREPARATION FOR RELETTING. Second, to pay to itself the
cost and expense reasonably sustained in securing any new tenants and other
occupants, including in such costs all brokerage commissions, Legal Costs, and
any other reasonable costs of preparing the Premises for reletting, and Default
Interest on the foregoing;
26.3.3 COSTS OF MAINTENANCE AND OPERATION. Third, to the
extent that Landlord shall maintain and operate the Premises, to pay to itself
the reasonable cost and expense of operating and maintaining the Premises and
Default Interest on the foregoing; and
26.3.4 RESIDUE. Fourth, to pay to itself any balance remaining
on account of the liability of Tenant to Landlord.
26.4 EXCULPATION; LANDLORD'S SOLE AND EXCLUSIVE REMEDY.
Notwithstanding anything to the contrary in this Lease, Landlord's right to
terminate this Lease and re-enter the Premises and take possession of the
Premises (and collect damages from Tenant, but only to the extent of Tenant's
interest in the Premises) shall constitute Landlord's sole and exclusive remedy
for any Default or Event of Default by Tenant. Landlord expressly waives,
releases and relinquishes any and all right to recover damages or any other sum,
or have any other remedy against Tenant, except to the extent of Tenant's
interest in the Premises.
26.5 TENANT'S LATE PAYMENTS; LATE CHARGES. If Tenant fails to make
any payment to Landlord required under this Lease within five days after such
payment is first due and payable, then in addition to any other remedies of
Landlord, and without reducing or adversely affecting any of Landlord's other
rights and remedies, Tenant shall pay Landlord within five days after demand
Default Interest on such late payment, beginning on the date such payment was
first due and payable and continuing until the date when Tenant actually makes
such payment. In addition, and without limiting any other rights or remedies of
Landlord, Tenant shall pay Landlord, as Additional Rent, an administrative
charge equal to 5% of any payment that Tenant fails to pay within five days
after such payment is first due and payable. Such administrative charge is
intended to compensate Landlord for the inconvenience and staff time incurred by
Landlord to handle the late or missed payment, shall not be deemed a penalty or
compensation for use of funds, and shall not be credited against any other
obligations of Tenant under this Lease.
26.6 LANDLORD'S RIGHT TO CURE. If Tenant at any time fails to make
any payment or take any action this Lease requires, then Landlord, after three
Business Days' Notice to Tenant, or in an emergency with such notice (if any) as
is reasonably practicable under the circumstances, and without waiving or
releasing Tenant from any obligation of Tenant or from any default by Tenant and
without waiving Landlord's right to take such action as this Lease may permit as
a result of such Default, may (but shall be under no obligation to) make such
payment or take such action. Tenant shall reimburse Landlord, as Additional
Rent, for an amount equal to the sum of (a) all reasonable sums paid by Landlord
and all costs and expenses reasonably incurred by Landlord, together with
Landlord's Legal Costs, in connection with the exercise of Landlord's cure
rights under this paragraph plus (b) Default Interest on "a."
26.7 HOLDING OVER. The parties recognize and agree that if for any
reason or no reason Tenant remains in the Premises after the Expiration Date,
then Landlord will suffer injury
51
that is substantial, difficult or impossible to measure accurately. Therefore,
if Tenant remains in the Premises after the Expiration Date, for any reason or
no reason, then in addition to any other rights or remedies available to
Landlord, Tenant shall pay to Landlord, as liquidated damages and not as a
penalty, for each month (prorated daily for partial months) during which Tenant
holds over after the Expiration Date, a sum equal to: 120% (for the first month
or partial month of holding over), 133% (for the second month or partial month
of holding over), and 150% (for each subsequent month or partial month of
holding over) times the monthly Rent, including Additional Rent, payable under
this Lease during the year preceding the Expiration Date.
26.8 WAIVERS. LANDLORD AND TENANT IRREVOCABLY WAIVE ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION
ARISING OUT OF OR RELATING TO THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT UNDER THIS LEASE, THE ENFORCEMENT OF THIS LEASE, TENANT'S USE OR
OCCUPANCY OF THE PREMISES, ANY CLAIM OF INJURY OR DAMAGE ARISING BETWEEN
LANDLORD AND TENANT, OR ANY ACTIONS OF LANDLORD IN CONNECTION WITH OR RELATING
TO THE ENFORCEMENT OF THIS LEASE. TENANT WAIVES ANY RIGHT OF REDEMPTION PROVIDED
FOR BY LAW. TENANT WAIVES ANY RIGHT TO INTERPOSE ANY COUNTERCLAIM IN ANY ACTION
BY LANDLORD TO ENFORCE THIS LEASE OR ANY RIGHTS AND REMEDIES OF LANDLORD UNDER
THIS LEASE.
26.9 ACCORD AND SATISFACTION; PARTIAL PAYMENTS. No payment by Tenant
or receipt by Landlord of a lesser amount than the amount required to be paid by
Tenant under this Lease shall be deemed to be other than a part payment on
account by Tenant, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment of Rent be deemed an accord or
satisfaction. Landlord may accept any such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
for nonpayment, including termination of this Lease and commencement of a
summary dispossess proceeding.
26.10 MISCELLANEOUS. Landlord and Tenant further agree as follows
with respect to any Defaults and Landlord's rights and remedies.
26.10.1 LANDLORD'S DEFAULTS. Notwithstanding anything to the
contrary in this Lease, before exercising any right to terminate this Lease
because of Landlord's or a Landlord Party's default (including any such
termination right expressly provided for, or implied, under applicable law) or
to claim a partial or total eviction (actual or constructive) because of
Landlord's or a Landlord Party's alleged default, or to exercise any other
rights or remedies against Landlord including, without limitation, enforcement
of the provisions of SECTION 8.3, Tenant shall give Landlord Notice of such
alleged default. Landlord shall then have 30 days to cure such alleged default.
If Landlord cannot reasonably cure an alleged default within 30 days, such cure
period shall be extended for such further period as Landlord shall reasonably
require (except that, with respect to an alleged default by Landlord under the
provisions of SECTION 8.3, Landlord shall have no right to further extend such
cure period), provided that during such extended period Landlord shall endeavor
to cure such alleged default diligently and with reasonable continuity. In the
event that Tenant fails or refuses to enforce its rights and remedies hereunder
(including, without limitation, its right to enforce Landlord's
52
Additional Covenants) then, without notice to Tenant, a Leasehold Mortgagee may
enforce such rights and remedies, which may include actions at law or in equity,
including the right to specific performance and injunctive relief. Tenant hereby
appoints each Leasehold Mortgagee as Tenant's attorney-in-fact, coupled with an
interest, to enforce such rights and remedies. This paragraph shall not apply to
any Landlord default for which this Lease establishes specific requirements
regarding Notice and opportunity to cure.
26.10.2 NONPAYMENT. If Tenant fails to pay any Rent, then
Landlord (in addition to all other rights and remedies) shall have all rights
and remedies in this Lease or under applicable law for nonpayment of rent.
26.10.3 SURVIVAL. No termination of this Lease and no taking
possession of and/or reletting the Premises (or any part thereof) shall relieve
Tenant of its liabilities and obligations hereunder, all of which shall survive
such expiration, termination, repossession, or reletting, but subject to any
limitations on personal liability or recourse contained in this Lease.
26.10.4 MULTIPLE SUITS. Landlord may ▇▇▇ to recover damages,
or a sum equal to any installment(s) of Rent payable hereunder or any
deficiencies or other sums payable by Tenant to Landlord under this Article,
from time to time at Landlord's election. Nothing in this Lease shall be deemed
to require Landlord to await the date when this Lease or the Term would have
expired absent an Event of Default by Tenant and a resulting termination of this
Lease.
26.10.5 RECEIPT OF MONIES. Unless such payment shall fully
cure all Monetary Defaults, no receipt of moneys by Landlord from Tenant after
the giving of a termination notice or a notice to obtain possession, or after
the retaking of possession by Landlord as aforesaid, shall reinstate, continue,
or extend the Term or affect any notice previously given to Tenant, or operate
as a waiver of Landlord's right to enforcement of Rent payable by Tenant under
this Lease or thereafter falling due, or operate as a waiver of Landlord's right
to recover possession of the Premises. After the service of any such notice, or
the commencement of any suit or summary proceedings, or after a final order or
judgment for possession of the Premises, Landlord may demand, receive and
collect any moneys due or thereafter falling due without in any manner affecting
such notice, proceeding, order, suit, or judgment, unless such payments shall
fully cure all Monetary Defaults. Any sums so collected (without thereby curing
all Monetary Defaults) shall instead be deemed payments on account of use and
occupation of the Premises or, at Landlord's election, to have been made on
account of Tenant's liability under this Lease.
26.10.6 NO DOUBLE RECOVERY. In no event shall Landlord be
entitled, directly or indirectly, to recover twice for the same element of
Landlord's damages.
27 END OF TERM.
Upon any Expiration Date: (a) all improvements constituting part of
the Premises (including all Equipment) shall become Landlord's property, subject
to Permitted Exceptions; (b) Tenant shall deliver to Landlord possession of the
Premises, in the condition required by this
53
Lease, subject to any Loss that this Lease does not require Tenant to Restore;
(c) Tenant shall surrender any right, title, or interest in and to the Premises
and deliver such evidence and confirmation thereof as Landlord shall reasonably
require; (d) Tenant shall deliver the Premises free and clear of all: (i)
Subleases, and (ii) liens except (1) Permitted Exceptions and (2) liens created
as a result of Landlord's or any of its agents' acts or omissions; (e) Tenant
shall assign to Landlord, without recourse, and give Landlord copies or
originals of, all Subleases and all assignable licenses, permits, contracts,
warranties, and guarantees then in effect for the Premises; (f) the parties
shall cooperate to achieve an orderly transition of operations from Tenant to
Landlord without interruption, including delivery of such books and records (or
copies thereof) as Landlord shall reasonably require; (g) the parties shall
adjust for Impositions and all other expenses and income of the Premises and any
prepaid Rent and shall make such payments as shall be appropriate on account of
such adjustment in the same manner as for a sale of the Premises (but any sums
otherwise payable to Tenant shall first be applied to cure any Default); and (h)
the parties shall terminate the Memorandum of Lease. At the Expiration Date,
Tenant shall not remove from the Premises any FF&E or Equipment, and shall
return the Premises to Landlord in a condition sufficient for Landlord to
continue Retail Operations substantially consistent with Tenant's Retail
Operations before the Expiration Date (or, at Landlord's option, Retail
Operations as conducted before the Commencement Date).
28 NOTICES. All Notices shall be in writing and shall be addressed to
Landlord and Tenant (with copies to their counsel) as set forth in EXHIBIT G.
Notices shall be delivered by Federal Express, Postal Service Express Mail, or
other nationally recognized overnight delivery service to the addresses set
forth in EXHIBIT G. Notices shall be deemed delivered on the date of delivery
(or when delivery has been attempted twice, as evidenced by the written report
of the delivery service) to the address(es) set forth below. No Notice shall be
effective unless and until a copy of such Notice has been delivered to the
intended recipient's Mortgagee(s) of which the sender shall have received
Notice. Either party may change its address or the name and address of its
attorneys by giving Notice in compliance with this Lease. Notice given for a
party by any attorney who represents such party shall constitute Notice by such
party. Notwithstanding the foregoing, Notices regarding the regular payment of
Rent under this Lease (as opposed to a Default, for example) may be sent by
first class mail, in which case they shall be deemed delivered three Business
Days after deposit in the United States mail, provided that no postal strike (or
other event likely to disrupt postal service) is then in effect.
29 NO BROKER.
Each party: (a) represents and warrants that it did not engage or
deal with any broker or finder, except Broker, in connection with this Lease and
no person except Broker is entitled to any commission or finder's fee on account
of any agreements or arrangements made by such party; and (b) shall Indemnify
the other party against any breach of such representation. Landlord shall
compensate Broker under a separate agreement and Indemnify Tenant against any
claims by Broker.
30 NONRECOURSE.
Notwithstanding anything to the contrary in this Lease, the
liability under this Lease of Landlord and Tenant (including any New Tenant or
Successor Tenant) and each of their
54
parent(s), subsidiary(ies), or affiliated corporations or other entities, and
any of their constituent partners, joint venturers, or tenants-in-common, for
damages or otherwise, shall be enforceable against, and shall not extend beyond,
their interests in the Premises (including the proceeds thereof). No property or
assets whatsoever, other than Landlord's or Tenant's (as applicable) interest in
the Premises (including the proceeds thereof), shall be subject to levy,
execution or any other enforcement procedure for the satisfaction of any
remedies (monetary or otherwise) of the other party arising under or in
connection with this Lease. No shareholder, officer, member, manager, director,
agent or employee of Tenant or Landlord shall have any liability under this
Lease. (This Lease sometimes refers to this paragraph as the "NONRECOURSE
CLAUSE.")
31 MEMORANDUM OF LEASE.
Upon request by either, the parties shall promptly execute,
acknowledge, and deliver duplicate originals of a Memorandum of Lease. Either
party may record such Memorandum of Lease. Any taxes imposed upon such recording
shall be paid by the party that bears primary liability under Law for payment of
such taxes. If the parties amend this Lease, then the parties shall have the
same rights and obligations regarding a memorandum of such amendment as they do
for the Memorandum of Lease.
32 ADDITIONAL DELIVERIES; THIRD PARTIES.
32.1 ESTOPPEL CERTIFICATES. From time to time, each party to this
Lease (a "REQUESTING PARTY") may, up to twice a year, require the other party (a
"CERTIFYING PARTY") to execute, acknowledge and deliver to the Requesting Party
(or directly to a designated third party) up to four original counterparts of an
Estoppel Certificate. The Certifying Party shall sign, acknowledge, and return
such Estoppel Certificate within 15 days after request. Any third party to whom
an Estoppel Certificate is directed may rely on such Estoppel Certificate.
32.2 FURTHER ASSURANCES. Each party shall execute and deliver such
further documents, and perform such further acts, as may be reasonably necessary
to achieve the intent of the parties in entering into this Lease.
32.3 AMENDMENT. Any modification or amendment to this Lease, and any
waiver of Landlord's obligations under this Lease, must be in writing signed by
the party to be charged.
32.4 SUCCESSORS AND ASSIGNS. Any present or future Mortgagee shall
have the right to enforce all Mortgagee Protections directly in its own name as
a third-party beneficiary. This Lease shall bind and benefit Landlord and Tenant
and their successors and assigns, but this shall not limit or supersede any
restrictions on Transfer contained in this Lease. Nothing in this Lease confers
on any Person (except Landlord, Tenant, Leasehold Mortgagees, and Fee
Mortgagees) any right to insist upon, or to enforce against Landlord or Tenant,
the performance or observance by either party of its obligations under this
Lease.
33 MISCELLANEOUS.
33.1 NO WAIVER BY SILENCE. Failure of either party to complain of
any act or omission on the part of the other party shall not be deemed a waiver
by the noncomplaining party
55
of any of its rights under this Lease. No waiver by either party at any time,
express or implied, of any breach of any provisions of this Lease shall be a
waiver of a breach of any other provision of this Lease or a consent to any
subsequent breach of the same or any other provision. No acceptance by Landlord
of any partial payment shall constitute an accord or satisfaction but shall only
be deemed a part payment on account.
33.2 UNAVOIDABLE DELAY. Each party's obligation to perform or
observe any term, condition, covenant or agreement on such party's part to be
performed or observed under this Lease (other than any obligation to pay money
when due) shall be suspended during such time as such performance or observance
is prevented or delayed by reason of any Unavoidable Delay.
33.3 PERFORMANCE UNDER PROTEST. If a dispute arises regarding
performance of any obligation under this Lease, the party against which such
obligation is asserted shall have the right to perform it under protest, which
shall not be regarded as voluntary performance. A party that shall have
performed under protest shall have the right to institute appropriate
proceedings to recover any amount paid or the reasonable cost of otherwise
complying with any such obligation, together with interest at the Prime Rate on
funds expended.
33.4 COSTS AND EXPENSES; LEGAL COSTS. In the event of any litigation
or dispute between Landlord and Tenant, or claim made by either against the
other, arising from this Lease or the landlord-tenant relationship under this
Lease, or on account of Landlord's enforcement of this Lease upon Tenant's
default, or to enforce or interpret this Lease or seek declaratory or injunctive
relief in connection with this Lease, or to exercise any rights or remedies
under or with respect to this Lease, or to regain or attempt to regain
possession of the Premises or otherwise terminate this Lease, or in any
Bankruptcy Proceeding affecting the other party to this Lease, the prevailing
party shall be entitled to reimbursement of its Legal Costs together with
Default Interest thereon, together with all other reasonable costs and expenses
incurred in enforcing this Lease or curing the other party's default.
33.5 VAULT SPACE. Any vaults and other areas now existing or
subsequently built extending beyond the building line of the Premises are not
part of the Premises, but Tenant may occupy and use the same during the Term,
subject to applicable Laws and payment of all applicable Impositions. No
revocation by any Government of any license or permit to maintain and use any
such vaults shall in any way affect this Lease or the Rent. Landlord makes no
representation or warranty regarding any such vaults or Tenant's right to use or
occupy same for any purpose, or any fees or taxes that may be imposed on account
of such use or occupancy.
33.6 NO CONSEQUENTIAL DAMAGES. Landlord and Tenant each hereby
agrees that, whenever either party to this Lease shall be entitled to seek or
claim damages against the other party (whether by reason of a breach of this
Lease by such party, in enforcement of any indemnity obligation, for
misrepresentation or breach of warranty, or otherwise), neither Landlord nor
Tenant shall seek, nor shall there be awarded or granted by any court,
arbitrator, or other adjudicator, any speculative, consequential, collateral,
special, punitive, or indirect damages, whether such breach shall be willful,
knowing, intentional, deliberate, or otherwise. The parties intend that any
damages awarded to either party shall be limited to the actual, direct damages
sustained by the aggrieved
56
party in question. Neither party shall be liable for any loss of profits
suffered or claimed to have been suffered by the other.
34 INTERPRETATION, EXECUTION, AND APPLICATION OF LEASE.
34.1 GOVERNING LAW. This Lease, its interpretation and performance,
the relationship between the parties, and any disputes arising from or relating
to any of the foregoing, shall be governed, construed, interpreted, and
regulated under the laws of the State, without regard to principles of conflict
of laws.
34.2 COUNTERPARTS. This Lease may be executed in counterparts.
34.3 REASONABLENESS. Wherever this Lease states that approval by
either party shall not be unreasonably withheld: (a) such approval shall not be
unreasonably delayed or conditioned; (b) no withholding of approval shall be
deemed reasonable unless withheld by Notice specifying reasonable grounds, in
reasonable detail, for such withholding of approval, and indicating specific
reasonable changes in the proposal under consideration that would cause such
proposal to be acceptable; and (c) if Landlord grants consent or fails to object
to any matter, this shall not be deemed a waiver by Landlord of its rights to
require such consent for any further or similar matter.
34.4 PARTIAL INVALIDITY. If any term or provision of this Lease or
the application of such term or provision to any party or circumstance shall to
any extent be invalid or unenforceable, then the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected by such
invalidity. All remaining provisions of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
34.5 INTERPRETATION. No inference in favor of or against any party
shall be drawn from the fact that such party has drafted any portion of this
Lease. The parties have both participated substantially in the negotiation,
drafting and revision of this Lease with representation by counsel and such
other advisers as they have deemed appropriate. A term defined in the singular
may be used in the plural, and vice versa, all in accordance with the normal
principles of English grammar, which shall also govern all other language used
in this Lease. The words "INCLUDE" and "INCLUDING" shall be construed to be
followed by the words: "without limitation." The parties acknowledge and
recognize that the document and version numbers and footers in this Lease may
vary from page to page because of the timing and sequencing of this transaction.
Each of the following terms shall be interpreted as if followed by the words
"(or any part thereof)" except where the context clearly requires otherwise:
Equipment; FF&E; Fee Estate; Land; Leasehold Estate; Premises; and Structure.
34.6 DELIVERY OF DRAFTS. Neither party shall be bound by this Lease
unless and until such party shall have executed at least one counterpart of this
Lease and delivered such executed counterpart to the other party. The submission
of draft(s) of this Lease or comment(s) on such drafts shall not bind either
party in any way. Such draft(s) and comment(s) shall not be considered in
interpreting this Lease.
57
34.7 CAPTIONS. The captions of this Lease are for convenience and
reference only. They in no way affect this Lease.
34.8 ENTIRE AGREEMENT. This Lease contains all the terms, covenants
and conditions relating to Tenant's leasing of the Premises. The parties have no
separate understandings or agreements, oral or written, relating to the Premises
or Tenant's use or occupancy of, or any interest of Tenant in, the Premises.
35 STATE STATUTORY PROVISIONS.
35.1 CASUALTY. The provisions of this Lease on Loss are intended to
constitute the parties' "express agreement to the contrary" to the provisions of
New York Real Property Law Section 227.
35.2 WINDOWS. Tenant shall not suffer or permit any windows in the
Premises to be cleaned from outside in violation of New York Labor Law Section
202.
35.3 STATUTORY RIGHT OF REDEMPTION. Tenant waives the right of
redemption under RPAPL Section 761.
58
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on
the Commencement Date.
LANDLORD
NATIONAL RAILROAD PASSENGER CORPORATION, a
District of Columbia corporation
By:
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: its authorized signatory
------------------------------------
Employer Identification Number: _________________
Date: June ___, 2001
TENANT
PENN STATION LEASING, LLC, a Delaware limited
liability company
By:___________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Officer
------------------------------------
Employer Identification Number: __________________
Date: June ____, 2001
ATTACHMENTS:
Index of Defined Terms
--------------------------------------------------------------------------------
EXHIBIT DESCRIPTION
--------------------------------------------------------------------------------
Concourse Area A
--------------------------------------------------------------------------------
LIRR Stairways, Elevators, and Escalators
--------------------------------------------------------------------------------
Concourse Area B
--------------------------------------------------------------------------------
Hilton Passageway and Seventh Avenue Corridor
--------------------------------------------------------------------------------
Landlord/NJT Stairways, Elevators, and Escalators
--------------------------------------------------------------------------------
Tracks and Platforms Constituting Landlord's Improvements
--------------------------------------------------------------------------------
Additional Permitted Exceptions
--------------------------------------------------------------------------------
Site Plan Showing Vehicular/Pedestrian Passageway
--------------------------------------------------------------------------------
Description of Vehicular/Pedestrian Passageway
--------------------------------------------------------------------------------
Notice Addresses (Including Required Copy Recipients)
--------------------------------------------------------------------------------
INDEX OF DEFINED TERMS
Additional Rent....................2
Affiliate..........................2
Affiliated.........................2
Amtrak Sublease....................1
Amtrak Subtenant...................1
Amtrak Subtenant Default..........24
Applications and Filings...........2
Applications or Filings............2
Approvals..........................2
Appurtenances......................2
Bankruptcy Law.....................2
Bankruptcy Proceeding..............2
BID................................3
Business Day.......................3
Casualty...........................3
Certifying Party..................64
Commencement Date..................1
Concourse Area A...................3
Concourse Area B...................3
Condemnation.......................3
Condemnation Award.................3
Condemnation Effective Date........4
Construction Work..................4
Contest...........................32
Contest Conditions................32
Contest Security..................32
Control............................4
Control of the Premises............4
County.............................4
CPI................................4
CPI Adjustment Factor..............4
Default............................4
Default Interest...................5
Depository.........................5
Dispute Resolution Documents.......5
Environmental Law..................5
Equipment......................6, 67
Equity Interest....................6
Estoppel Certificate...............6
Event of Default..................55
Excised Obligations................6
Excluded Premises..................6
Expiration Date....................6
▇▇▇▇▇▇ Building....................7
Fee Debt Service...................7
Fee Estate.....................7, 67
Fee Mortgage.......................7
Fee Mortgagee......................7
FF&E...........................7, 67
Fixed Rent........................21
Foreclosure Event..................7
Franchise Agreement................7
Government.........................8
Hazardous Substances...............8
Hazardous Substances Discharge.....8
Immaterial Loss....................8
Impositions........................8
Improvements.......................9
include...........................67
including.........................67
Indemnify..........................9
Indemnitee........................10
Indemnitor........................10
Institutional Lender..............10
Insubstantial Condemnation........10
Insurance Purchaser...............36
Land..............................67
Landlord.......................1, 10
Landlord Party....................28
Landlord's Additional Covenants....1
Landlord's Air Rights.............10
Landlord's Equipment..............10
Landlord's Improvements...........10
Laws..............................11
Lease..............................1
Leasehold Estate..............11, 67
Leasehold Impairment..............11
Leasehold Mortgage................11
Leasehold Mortgage Balance........11
Leasehold Mortgagee...............11
Leasehold Mortgagee's Consent.....12
Leasehold Mortgagee's Cure........12
Leasehold Mortgagee's Cure Rights.12
Lease-Related Documents...........39
Legal Costs.......................12
Liability Insurance...............12
LIRR..............................12
Loss..............................12
Loss Proceeds.....................12
Major Construction Work...........13
Memorandum of Lease...............13
Monetary Default..................13
Mortgage..........................13
Mortgagee.........................13
Mortgagee Protections.............13
New Lease.........................13
New Lease Delivery Date...........14
New Lease Option Period...........14
New Tenant........................14
NJT...............................14
Non-Monetary Default..............14
Nonrecourse Clause................63
Notice............................14
Notify............................14
Permitted Exceptions..............15
Person............................15
Post-Rejection Offset Amount......15
Premises.......................1, 67
Prime Rate........................15
Prohibited Lien...................15
Prohibited Person.................15
Property Insurance................16
Property Insurance Proceeds.......16
Rating Agency Requirements........16
Rent..............................16
Rent Regulation Period............22
Requesting Party..................64
Reserved Rights...................16
Restoration.......................16
Restoration Funds.................17
Restore...........................17
Retail Operations.................17
RPAPL.............................17
Scheduled Expiration Date.........17
Senior............................17
Single Purpose Entity.............17
State.............................17
Structure.....................17, 67
Sublease..........................17
Subrent...........................18
Substantial Condemnation..........18
Subtenant.........................18
Successor Tenant..................18
Temporary Condemnation............18
Tenant.............................1
Tenant's Cure Period Expiration
Notice..........................18
Tenant-Specific Default...........18
Tenant-Specific Obligation........19
Term..............................19
Trackage Rights...................19
Transfer..........................19
Transportation Infrastructure.....19
Unavoidable Delay.................20
Uneconomic........................20
Vehicular/Pedestrian Passageway...20
Waiver of Subrogation.............20
ii
EXHIBIT D
ADDITIONAL PERMITTED EXCEPTIONS
Permitted Exceptions shall include all of the following, as they existed on June
20, 2001:
1. All leases, subleases, tenancies and rights of occupancy affecting the
Premises caused or permitted by Tenant or by anyone claiming by, through, or
under Tenant;
2. All rights, if any, for electricity, gas, telephone, water, cable
television and any other utilities to maintain and operate lines, cables, poles
and distribution boxes in, over and upon the Premises;
3. Possible projections and/or encroachments of retaining walls, foundations,
▇▇▇▇▇▇, areas, steps, ▇▇▇▇▇, trim, cornices, standpipes, fire escapes, coal
chutes, casings, ledges, water tables, lintels, porticos, keystones, windows,
▇▇▇▇▇▇, copings, cellar doors, sidewalk elevators, fences, fire escapes and the
like, or similar projections or objects upon, under or above any adjoining
buildings and/or streets or avenues or those belonging to adjoining premises
which encroach upon the Premises or within any set-back areas, and variations
between the lines of record title and fences, retaining walls, hedges, and the
like;
4. Variations between the tax diagram or the tax map and the record
description;
5. Zoning, environmental, municipal, building and all other laws, regulations
or similar matters imposed by any federal, state, municipal or local government
or any public or quasi-public board, authority or similar agency having
jurisdiction over the Premises or any portion thereof;
6. All notes or notices of any violation of law or municipal ordinances,
orders or requirements noted in or issued by any governmental or
quasi-governmental authority or departments having or asserting jurisdiction,
now or hereafter affecting the Premises;
7. The lien for all taxes, charges, rents, assessments and any other
governmental charges which are not yet due and payable; and
8. Any documents, instruments or agreements evidencing, securing or otherwise
relating to any loan made by the holder of the existing Fee Mortgage(s) to
Landlord, but only if Tenant is able to obtain a leasehold policy of title
insurance that affirmatively insures that such Fee Mortgage(s) are subordinate
to this Lease.
Permitted Exceptions shall also include all of the following:
a. Liens for real estate and personal property taxes and vault charges and
all other taxes, levies and other similar charges levied by any Government on
the Premises not yet due and payable or to the extent that nonpayment thereof is
expressly permitted by this Lease;
1
b. Future liens for property taxes and assessments not then delinquent;
c. In the case of liens arising after the Commencement Date, statutory liens
of carriers, warehousemen, mechanics, materialmen and other similar liens
arising by operation of law, that are incurred in the ordinary course of
business subject to the other provisions hereof and discharged by Tenant by
payment, bonding or otherwise within 45 days after the filing thereof or that
are being contested in good faith;
d. Liens arising from reasonable and customary purchase money financing of
personal property and equipment leasing to the extent the same are created in
the ordinary course of business;
e. All easement, rights-of-way, restrictions and other similar charges or
non-monetary encumbrances against real property that do not materially and
adversely affect (i) the ability of Tenant to pay any of its obligations to any
person as and when due, (ii) the marketability of title to the Premises, or
(iii) the use or operation of the Premises;
f. Rights of existing and future tenants, as tenants only, pursuant to the
leases of the Premises; and
g. Any other liens or other matters approved by the Senior Leasehold
Mortgagee or the Senior Leasehold Mortgagee's counsel in writing or permitted
pursuant to the terms of the Senior Leasehold Mortgagee's loan documents.
2
EXHIBIT G
NOTICE ADDRESSEES (INCLUDING REQUIRED COPY RECIPIENTS)
--------------------------------------------------------------------------------
PARTY: NOTICE ADDRESS: WITH A COPY TO:
--------------------------------------------------------------------------------
Landlord National Railroad National Railroad
Passenger Corporation Passenger Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Treasurer Attention: General
Counsel
--------------------------------------------------------------------------------
Tenant Penn Station Leasing, LLC National Railroad
c/o National Railroad Passenger Corporation
Passenger Corporation ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ Attention: General
Attention: Treasurer Counsel
--------------------------------------------------------------------------------
1