Exhibit 2
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AGREEMENT
between
AZIW LLC
and
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
August 9, 1998
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TABLE OF CONTENTS
Page
1. DEFINITIONS...........................................................2
2. PURCHASE AND SALE.....................................................8
3. RIGHTS OF INSPECTION AND CONDITION OF PROPERTY........................9
4. PURCHASE PRICE AND DEPOSIT...........................................14
5. STATUS OF TITLE......................................................15
6. TITLE INSURANCE LIENS................................................17
7. APPORTIONMENTS.......................................................22
8. PROPERTY NOT INCLUDED IN SALE........................................30
9. COVENANTS OF AZIW; CONDITIONS TO CLOSING.............................30
10. ASSIGNMENTS AND ASSUMPTIONS, SECURITY DEPOSITS; EMPLOYEES............34
11. REPRESENTATIONS......................................................37
12. DAMAGE AND DESTRUCTION...............................................51
13. CONDEMNATION.........................................................51
14. BROKERS AND ADVISORS.................................................54
15. TAX REDUCTION PROCEEDINGS............................................56
16. TRANSFER TAXES AND RECORDING CHARGES.................................57
17. DELIVERIES TO BE MADE ON THE CLOSING DATE............................58
18. FORM OF CONVEYANCE...................................................62
19. CLOSING DATE.........................................................70
20. NOTICES..............................................................70
21. DEFAULT BY GREEN OR AZIW.............................................72
22. FIRPTA COMPLIANCE....................................................79
23. ENTIRE AGREEMENT.....................................................80
24. AMENDMENTS...........................................................80
25. WAIVER...............................................................80
26. PARTIAL INVALIDITY...................................................80
27. SECTION HEADINGS.....................................................81
28. GOVERNING LAW........................................................81
29. PARTIES; ASSIGNMENT AND RECORDING....................................81
30. FURTHER ASSURANCES...................................................82
31. THIRD-PARTY BENEFICIARY..............................................83
32. JURISDICTION AND SERVICE OF PROCESS..................................83
33. WAIVER OF TRIAL BY JURY..............................................83
34. MISCELLANEOUS........................................................83
Exhibits
A. Legal Description
B. Escrow Agreement
C. Form of Deed
D. Form of ▇▇▇▇ of Sale
E. Form of Tenant Letters
F. Form of FIRPTA
G. Form of Assignment and Assumption of Leases and Contracts
H. Form of General Assignment and Assumption
I. Memorandum
J. Intentionally Omitted
K. Nominee Agreement
L. Assignment of Membership Interests
M. Amended and Restated Operating Agreement
N. Intentionally Omitted
O-1. Note
O-2. Pledge and Security Agreement
P. Assignment of Membership Interests
Q. Guaranty
R. PSA Assignment
S. Modification of ▇▇▇▇▇▇ ▇▇▇ Lease Agreement
▇. ▇▇▇▇▇ Lease
Schedules
1. Pro Forma Title Policy
2-A. New Leases
2-B. Tenant Inducement Costs
3. Union Employees
4. Rent Roll
5. Pavilion Sublessees
6. Contracts
7. Security Deposits
8. Tenant Arrearage Schedule
9. Litigation
10. Employment Agreements
11. Management Employees
THIS AGREEMENT (this "Agreement") is made as of the 9th day
of August, 1998 by and between AZIW LLC, a New York limited liability company,
having an address c/o The Macklowe Organization, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("AZIW") and GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York limited
liability company, having an address c/o ▇▇ ▇▇▇▇▇ Realty Corp., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Green").
W I T N E S S E T H :
WHEREAS, Fashion Gallery Owners, LLC ("Owner") is the owner
and holder of the fee simple estate in and to that certain plot, piece and
parcel of land (the "Land") known as ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ and more
particularly described in Exhibit A annexed hereto, together with the buildings
and all other improvements (collectively, the "Building") located on the Land
(the Building and the Land are hereinafter sometimes collectively referred to as
the "Premises");
WHEREAS, pursuant to a purchase and sale agreement dated March
31, 1998 (the "PSA") AZIW has agreed to purchase from Owner and Owner has agreed
to sell to AZIW Owner's interests in and to the Premises upon the terms of the
PSA;
WHEREAS, AZIW desires to cause the sale and conveyance of the
Premises (and the balance of the Property as hereinafter defined) to Green, and
Green desires to acquire the Premises (and the balance of the Property as
hereinafter defined), upon the terms of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto covenant and agree as follows:
1. DEFINITIONS.
(a) When used in this Agreement, the following terms shall have
the indicated meanings:
(i) "Adjourned Closing Date" shall have the meaning
given to such term in Section 6(a)(ii) hereof.
(ii) "Agreement" shall have the meaning given to such
term in the Preamble hereof.
(iii) "Apportionment Date" shall have the meaning given
to such term in Section 7(a) hereof.
(iv) "AZIW" shall have the meaning given to such term in
the Preamble hereof.
(v) "AZIW Post-Closing TI Costs" shall have the meaning
given to such term in Section 7(h) hereof.
(vi) "AZIW Related Parties" shall have the meaning given
to such term in Section 3(d) hereof.
(vii) "AZIW Representations" shall have the meaning
given to such term in Section 11(c) hereof.
(viii) "Break-Up Fee" shall mean a payment equal to (i)
all of Green's out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees, costs and
expenses, inspection fees, appraisal fees, environmental
inspection fees and engineering fees) incurred in connection
with this Agreement and the transactions contemplated hereunder,
not to exceed One Hundred Twenty Five Thousand Dollars
($125,000) in the aggregate, plus (ii) One Hundred Fifty
Thousand Dollars ($150,000).
(ix) "Broker" shall have the meaning given to such term
in Section 14(a) hereof.
(x) "Building" shall have the meaning given to such term
in the Recitals hereof.
(xi) "Business Day" shall mean every day other than
Saturdays, Sundays, all days observed by the federal or New York
State government as legal holidays and all days on which
commercial banks in New York State are required by law to be
closed.
(xii) "Closing" shall have the meaning given to such
term in Article 19 hereof.
(xiii) "Closing Date" shall have the meaning given to
such term in Article 19 hereof.
(xiv) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time, and the regulations
promulgated thereunder, or any corresponding federal tax statute
enacted after the date of this Agreement. A reference to a
specific section of the Code refers not only to such specific
section but also to any corresponding provision of any federal
tax statute enacted after the date of this Agreement, as such
specific section or corresponding provision is in effect on the
date of application of the provisions of this Agreement
containing such reference.
(xv) "Commission" shall have the meaning given to such
term in Section 14(c) hereof.
(xvi) "Contracts" shall have the meaning given to such
term in Section 10(a)(ii) hereof.
(xvii) "Controlled Affiliate" shall have the meaning
given to such term in Section 29(b) hereof.
(xviii) "Controlled By" shall have the meaning given to
such term in Section 29(b) hereof.
(xix) "Damages" shall have the meaning given to such
term in Section 11(c) hereof.
(xx) "Deposit" shall have the meaning, given to such
term in Section 4(a) hereof.
(xxi) "Employment Agreements" shall have the meaning
given to such term in Section 11(b)(x) hereof.
(xxii) "Escrow Agent" shall have the meaning given to
such term in Section 4(a) hereof.
(xxiii) "Excluded Personalty" shall have the meaning
given to such term in Article 8 hereof.
(xxiv) "Exculpated Parties" shall have the meaning given
to such term in Section 11(a) hereof.
(xxv) "Final Closing Statement" shall have the meaning
given to such term in Section 7(i) hereof.
(xxvi) "Floor" shall have the meaning given to such term
in Section 11(c) hereof.
(xxvii) "Green" shall have the meaning given to such
term in the Preamble hereof.
(xxviii) "Green's Representatives" shall have the
meaning given to such term in Section 3(c) hereof.
(xxix) "Land" shall have the meaning given to such term
in the Recitals hereof.
(xxx) "Lease" and "Leases" shall have the meanings given
to such terms in Section 10(a)(i) hereof.
(xxxi) "Lease Additional Rent" shall have the meaning
given to such term Section 7(b)(ii) hereof.
(xxxii) "Manhattan Pacific" shall have the meaning given
to such term in Section 14(a) hereof.
(xxxiii) "New Closing Notice" shall have the meaning
given to such term in Section 6(d) hereof.
(xxxiv) "98/99 Tax Year" shall have the meaning given to
such term in Article -------------- 15 hereof. (xxxv) "Nomura"
shall have the meaning given to such term in Section 6(g)
hereof.
(xxxv) "Nomura" shall have the meaning given to such
term in Section 6(g) hereof.
(xxxvi) "Nomura Account" shall have the meaning given to
such term in Section 7(h) hereof.
(xxxvii) "Nomura Assignment" shall have the meaning
given to such term in Section 6(g) hereof.
(xxxviii)"Nomura Loan" shall have the meaning, given to
such term in Section 6(g) hereof.
(xxxix) "Nomura Loan Agreement" shall have the meaning
given to such term in Section 6(g) hereof.
(xl) "Non-Objectionable Encumbrances" shall have the
meaning given to such term in Section 6(a)(ii) hereof.
(xli) "Notices" shall have the meaning given to such
term in Article 20 hereof.
(xlii) "Objection Period" shall have the meaning given
to such term in Section 6(a)(i) hereof.
(xliii) "Owner" shall have the meaning given to such
term in the Recitals hereof.
(xliv) "Pavilion Lease" shall have the meaning given to
such term in Section 11(b)(iv) hereof.
(xlv) "Pavilion Lessee" shall have the meaning given to
such term in Section 11(b)(iv) hereof.
(xlvi) "PSA" shall have the meaning given to such term
in the Recitals hereof.
(xlvii) "Permitted Encumbrances" shall have the meaning
given to such term in Article 5 hereof.
(xlviii) "Personalty" shall have the meaning given to
such term in Section 2(a) hereof.
(xlix) "Preliminary Closing Statement" shall have the
meaning given to such term in Section 7(i) hereof.
(l) "Premises" shall have the meaning given to such term
in the Recitals hereof.
(li) "Proceeding" shall have the meaning given to such
term in Section 11(c) hereof.
(lii) "Property" shall have the meaning given to such
term in Section 2(a) hereof.
(liii) "Property Taxes" shall have " shall have the
meaning given to such term in Section 7(a)(ii) hereof.
(liv) "Purchase Price" shall have the meaning given
to such term in Article 4 hereof.
(lv) "Rents" shall have the meaning given to such term
in Section 7(a)(i) hereof.
(lvi) "Required Tenants" shall have the meaning, given
to such term in Section 17(a)(xi) hereof.
(lvii) "RET" shall have the meaning given to such
term in Section 16(a) hereof.
(lviii) "RPT" shall have the meaning given to such term
in Section 16(a) hereof.
(lix) "Scheduled Closing Date" shall have the
meaning given to such term in Section 19(a) hereof.
(lx) "Taking" shall have the meaning given to such term
in Section 13(a) hereof.
(lxi) "Tenant Inducement Costs" shall have the meaning
given to such term in Section 7(h) hereof.
(lxii) "Title Company" shall have the meaning given to
such term in Section 6(a)(i) hereof.
(lxiii) "Title Policy" shall have the meaning given to
such term in Section 6(a)(i) hereof.
(lxiv) "Transferred Security Deposits" shall have the
meaning given to such term in Section 17(a)(vii) hereof.
(lxv) "Utilities" shall have the meaning, given to such
term in Section 7(e) hereof.
(b) Capitalized terms used in this Agreement but not defined in
this Article 1 shall have the meanings assigned to them elsewhere in this
Agreement.
2. PURCHASE AND SALE.
(a) AZIW shall sell and convey, or shall cause the sale and
conveyance, to Green, and Green shall either (y) purchase and assume, subject to
the terms and conditions of this Agreement, all of the right, title and interest
conveyed, or to be conveyed, by Owner to AZIW under the PSA in, to and under (i)
the Premises; (ii) the fixtures, furnishings, furniture, equipment, machinery,
inventory, appliances and other tangible and intangible personal property owned
by Owner and located at the Premises and/or used in connection with the
operation thereof or in connection with the operation by Pavilion Lessee
(hereinafter defined) of its business (collectively, the "Personalty"); and
(iii) the Leases and Contracts in effect on the Closing Date (the items
described in clauses (i), (ii) and (iii) above shall be referred to herein
collectively as the "Property"); or (z) be admitted to AZIW as provided in
Article 18 of this Agreement in the event AZIW shall exercise the "Partnership
Election."
(b) Personalty is de minimis and no part of the Purchase Price is
allocable thereto.
3. RIGHTS OF INSPECTION AND CONDITION OF PROPERTY.
(a) AZIW acknowledges Green is a subsidiary of a real estate
investment trust under the Code (a "REIT") and, accordingly that Green will be
required to file an audited financial statement pertaining to the Property for
1997 and the portion of the calendar year in which the Closing occurs up to the
Closing Date (a "314 Audit"). AZIW shall make all information regarding the
operation of the Property which is in AZIW's possession or control available to
Green and its accountants to facilitate such 314 Audit, but the same shall be
expressly without representation or warranty of any kind, including, without
limitation, with respect to the content or insufficiency thereof. As a condition
to the Closing, AZIW, at AZIW's cost and expense, shall cause Ernst &
Young/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to prepare and update through the Closing and deliver to
Green on or before the Closing a 314 Audit in form and substance reasonably
acceptable to Green, in compliance with all applicable laws, rules and
regulations of governmental authorities and accounting organizations and
providing, among other things, that the Property qualifies for inclusion in a
REIT under the Code and all other applicable laws, regulations and rules.
(b) Subject to the rights of Tenants under the Leases, and
Owner's rights and AZIW's obligations under the PSA, AZIW shall use reasonable
efforts to afford Green access to the Premises at such reasonable times as Green
shall request such that the Property and its utility and service systems thereon
may be inspected by such engineers, environmental inspectors, architects and
others acting on behalf of Green, as Green may designate. As a condition
precedent to entering the Premises in connection with any such inspection, Green
shall maintain or cause to be maintained, at Green's sole cost and expense, a
policy of comprehensive general public liability insurance by an insurer or
syndicate of insurers reasonably acceptable to AZIW, (i) with a combined single
limit of not less than One Million Dollars ($1,000,000) general liability and
Five Million Dollars ($5,000,000) excess umbrella liability and (ii) insuring
Green, AZIW and Owner, their respective affiliates, Owner's lender and any other
person or entity related to AZIW or Owner or involved with the transaction
contemplated by this Agreement (such additional persons or entities to be
designated in writing by AZIW), as additional insureds, against any injuries or
damages to persons or property that may result from or are related to (x)
Green's entry upon any of the Premises and (y) any inspection or other activity
conducted thereon by Green's Representatives. Green shall deliver evidence of
such insurance coverage to AZIW prior to the commencement of the first
inspection and proof of continued coverage prior to any subsequent inspection.
(c) In conducting the inspection of the Property, neither Green
nor any of Green's agents, employees, consultants, inspectors, appraisers,
engineers and contractors (collectively, "Green's Representatives") shall (a)
contact or have any discussions with Owner or any of Owner's employees, agents
or representatives, or with any tenants at, or contractors providing services
to, the Premises, (b) interfere with the business of Owner conducted at or
relating to the Premises or (c) damage the Premises or any portion thereof. When
conducting the foregoing inspection, Green and Green's Representatives shall at
all times comply with and shall be subject to all other terms, covenants and
conditions of this Agreement. AZIW may from time to time establish reasonable
rules of conduct for Green and Green's Representatives in furtherance of the
foregoing. Green shall schedule and coordinate all inspections, including,
without limitation, any environmental test, with AZIW. AZIW shall be entitled to
have a representative present at all times during each such inspection. Green
agrees to pay to AZIW on demand the cost of repairing and restoring any damage
which Green or Green's Representatives shall cause to the Premises or any
portion thereof. All inspection fees, appraisal fees, engineering fees and other
costs and expenses of any kind incurred by Green or Green's Representatives
relating to such inspection of the Premises and its other due diligence shall be
at the sole expense of Green, except as otherwise expressly provided in this
Agreement. Green and Green's Representatives shall not be permitted to conduct
borings of the Premises or drilling in or on the Premises in connection with the
preparation of an environmental audit or in connection with any other inspection
of the Premises without the consent of AZIW (and, if such consent is given,
Green shall be obligated to pay to AZIW on demand the cost of repairing and
restoring any damage as aforesaid). Green shall prevent any of Green's
Representatives from filing or recording any lien, judgment or encumbrance
against the Premises for any fees or expenses payable in connection with any
inspection, and Green shall, at its sole cost and expense, promptly discharge of
record any such liens, judgments or other encumbrances that are so filed or
recorded (including, without limitation, liens for services, labor or materials
furnished). AZIW's right to pursue Green for a breach before the Closing or
earlier termination of this Agreement of Green's obligations under this Section
3(c) shall survive the Closing or any termination of this Agreement, and the
immediately preceding sentence shall survive any termination of this Agreement.
(d) Green agrees to indemnify and hold AZIW and its direct and
indirect shareholders, officers, directors, partners, principals, members,
employees, agents, contractors, and any successors or assigns of the foregoing
(collectively with AZIW, "AZIW Related Parties"), harmless from and against any
and all losses, costs, damages, liens, claims, liabilities or expenses
(including, but not limited to, reasonable attorneys' fees, court costs and
disbursements) incurred by any of AZIW's Related Parties arising from or by
reason of Green's and/or Green's Representatives' access to, or inspection of,
the Premises, or any tests, inspections or other due diligence conducted
pursuant to this Agreement. Notwithstanding anything contained in this Agreement
to the contrary, if Green defaults under its obligations under this Article 3,
AZIW shall be entitled to retain a portion (up to one hundred percent (100%)) of
the Deposit equal to the actual damages incurred by AZIW in connection with such
default, as determined pursuant to a final, unappealable judgment resulting from
an action commenced before this Agreement is terminated, provided, however, that
the foregoing shall not limit the remedies which AZIW may have at law or equity
for such default. The provisions of this Section 3(d) shall survive the Closing
or any termination of this Agreement.
(e) Notwithstanding the foregoing inspection rights, but subject
to AZIW's representations and warranties set forth in this Agreement, Green
agrees to accept the Property "AS IS" and "WITH ALL FAULTS" on the date hereof,
subject to (i) reasonable use, wear, tear and natural deterioration between the
date hereof and the Closing Date and (ii) damage by fire or other casualty and
condemnation between the date hereof and the Closing Date as set forth in
Articles 12 and 13 hereof. Green has investigated, and is satisfied with, the
Property and the physical condition, including environmental matters, income,
expense and operations thereof, and all other matters or things affecting or
relating to the Property. Green agrees that any investigation or inspection
performed by Green in accordance with subsections (a) through (d) of this
Article 3 is performed by Green, and allowed by AZIW, solely for the purpose of
assisting Green in preparing such plans, engineering reports and management
systems, and the making of such other preparations as Green may reasonably
anticipate to be required in connection with the ownership of the Property after
acquisition of same by Green. Access to the Property is solely for the benefit
of Green for the aforestated purpose and shall neither be a basis for evaluating
the purchase and sale herein agreed to by Green, nor, subject to AZIW's
representations and warranties set forth in this Agreement, a contingency or
condition to the performance of Green's obligations hereunder. The results of
any such inspection, whether evidencing latent or patent defects in the Premises
or otherwise disclosing a condition which is undesirable or in violation of any
law or governmental rule, regulation, ordinance or order, shall not, except as
otherwise provided in this Agreement, be grounds for any release of Green's
obligations hereunder or the time for the performance of same, any amendment or
modification of this Agreement or any abatement in the Purchase Price. Except as
expressly set forth in this Agreement: (i) neither AZIW nor the employees,
agents, representatives, accountants or attorneys of AZIW or any broker or any
other persons representing or purporting to represent AZIW have made any oral or
written representations or warranties whatsoever with respect to the physical
condition or operation of the Property, the revenues and expenses generated by
and associated with the Property, the zoning and other laws, regulations and
rules applicable thereto or the compliance by the Premises therewith, or with
respect to the Leases or the Contracts; and (ii) neither AZIW nor Green has
relied or will rely on any such representations made or to be made by the other,
or by the employees, agents, representatives, accountants or attorneys of the
other.
4. PURCHASE PRICE AND DEPOSIT.
The purchase price to be paid by Green for the Property (the
"Purchase Price") is Seventy-Two Million Dollars ($72,000,000), subject to
adjustment and apportionment as provided in this Agreement.
(a) Simultaneously with the execution of this Agreement by Green,
Green is delivering to ▇▇▇▇▇▇▇▇▇ Traurig, as escrow agent (the "Escrow Agent"),
Three Million Five Hundred Thousand Dollars ($3,500,000) by a certified check or
official cashier's check payable directly to the order of "▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as
Escrow Agent" (the "Deposit").
(b) Upon receipt by Escrow Agent of the Deposit, to the extent
possible, Escrow Agent shall cause the same to be deposited in a federally
insured interest-bearing account selected by Escrow Agent (it being agreed that
Escrow Agent shall not be liable for the amount of any interest or loss that
results from any such investments) and Escrow Agent shall hold the Deposit in
accordance with the provisions of Exhibit B annexed hereto. If the Closing
occurs, the interest on the Deposit, if any, shall be paid to AZIW (without
credit against the Purchase Price) and, if the Closing does not occur and this
Agreement is terminated, then the interest earned on the Deposit shall be paid
to the party entitled to receive the Deposit as provided in this Agreement. The
party receiving such interest shall pay all income taxes thereon.
(c) At the Closing Green shall pay the balance of the Purchase
Price (i.e., the Purchase Price less the Deposit, but without off-set for any
interest earned on the Deposit), as apportioned and adjusted pursuant to this
Agreement and subject to Section 18(c).
(d) All monies payable by Green under this Agreement, unless
otherwise specified in this Agreement, shall be paid, at AZIW's election, by
unendorsed bank check(s) issued by a bank which is a member of the New York
Clearinghouse Association and payable directly to the order of AZIW or to such
person or entity or persons or entities as AZIW may designate in writing, at
least two (2) Business Days prior to the Closing Date or by wire transfer in
immediately available federal funds for credit to such bank account or accounts
as shall be so specified by AZIW.
5. STATUS OF TITLE
Subject to the terms and provisions of this Agreement, the
Premises shall be sold and conveyed to Green, and Green shall accept same,
subject only to the following, (collectively, the "Permitted Encumbrances"):
(a) the state of facts disclosed on the survey prepared by ▇▇▇▇
▇. ▇▇▇▇▇▇ -▇.▇. ▇▇▇▇▇▇▇, Inc. dated January 16, 1931, last redated by visual
examination dated June 2, 1997 and any further state of facts that a current
survey of the Premises or a personal inspection would disclose;
(b) the easements, conditions, restrictions, agreements and
encumbrances set forth on the Pro Forma Policy (hereinafter defined);
(c) Non-Objectionable Encumbrances and any liens, encumbrances or
other title exceptions approved or waived by Green as provided in Article 6
hereof;
(d) Property Taxes which are a lien but not yet due and payable,
subject to proration in accordance with Article 7 hereof;
(e) any laws, rules, regulations, statutes, ordinances, orders or
other legal requirements affecting the Premises, including, without limitation,
those relating to zoning and land use;
(f) any utility company rights, easements and franchises for
electricity, water, steam, gas, telephone or other service or the right to use
and maintain poles, lines, wires, cables, pipes, boxes and other fixtures and
facilities in, over, under and upon the Premises, provided that in the case of
any of the foregoing items that are not of record, the same do not materially
and adversely affect the present use of the Premises;
(g) any installment not yet due and payable of assessments
imposed after the date hereof and affecting the Premises or any portion thereof;
(h) the rights and interests held by tenants under the Leases in
effect at Closing; and
(i) provided the AZIW Representation in Section 11(b)(xx) is true
as of Closing, all violations of laws, rules, regulations, statutes, ordinances,
orders or requirements, now or hereafter issued or noted ("Violations"). Green
agrees that neither it nor any of its officers, directors, employees, agents or
anyone acting through or at their direction shall contact the New York City
Department of Buildings or any other New York City agency with respect to any
Violations without AZIW's prior written consent which may be withheld only if
Owner withholds its consent to AZIWs corresponding request to Owner under the
PSA and which request AZIW shall make to Owner immediately upon receiving
Green's request for such consent, provided Green may cause the Title Company to
perform normal departmental searches with respect to violations on the Property.
6. TITLE INSURANCE; LIENS.
(a) (i) Schedule 1 annexed hereto contains a copy of the pro
forma title insurance policy No. LTM-8399-M (the "Pro Forma
Policy") prepared by Lawyers Title Insurance Corporation (the
"Title Company"). AZIW shall promptly arrange with the Title
Company for the issuance to Green at Closing of an owner's policy
of title insurance (the "Title Policy") for the Premises in the
form of the Pro Forma Policy and AZIW shall arrange to have any
further updates or revisions thereto delivered by the Title
Company simultaneously to Green's and AZIW's attorneys. No later
than the day before Closing TIME BEING OF THE ESSENCE (the period
between the date hereof and the day before Closing being
hereinafter referred to as the "Objection Period"), Green shall
deliver to AZIW notice of Green's objections (the "Title
Objections") to any liens, encumbrances or other title exceptions
(other than Permitted Encumbrances) revealed by any update or
revision to the Pro Forma Policy, it being agreed that Green
shall have no right to object to the Permitted Encumbrances. If
Green does not deliver any such objection notice by the day
before the Closing, Green shall be deemed to have waived its
right to object to any new liens, encumbrances or other title
exceptions appearing on such update (and the same shall not
constitute Title Objections and shall be deemed Permitted
Encumbrances). If Green delivers such objection notice within the
Objection Period, any liens, encumbrances and other title
exceptions appearing on any update to the Pro Forma Policy which
are not expressly objected to in such notice shall not constitute
Title Objections and shall be deemed Permitted Encumbrances.
(ii) Green shall not be entitled to object to, and
shall be deemed to have approved, any liens, encumbrances or
other title exceptions (and the same shall not constitute Title
Objections but shall be deemed Permitted Encumbrances) (1) over
which the Title Company is willing to insure (without additional
cost to Green), (2) against which the Title Company is willing to
provide affirmative insurance (without additional cost to Green),
or (3) which will be extinguished upon the transfer of the
Property (collectively, the "Non-Objectionable Encumbrances").
Notwithstanding anything to the contrary contained herein, if any
Title Objections have not been eliminated by the Scheduled
Closing Date (unless the same are waived by Green without any
abatement in the Purchase Price), and Owner has exercised its
right under the PSA to adjourn the Scheduled Closing Date for the
purpose of attempting to cure such Title Objections, AZIW shall
adjourn the Scheduled Closing Date (such date to which AZIW
adjourns the Scheduled Closing Date is herein referred to as the
"Adjourned Closing Date") for the same period which Owner has
adjourned the Scheduled Closing Date under the PSA, such period
not to exceed ninety (90) days after the Scheduled Closing Date,
to facilitate the attempt to eliminate such Title Objections.
(iii) Without limiting the provisions of Section
3(c), in no event shall any lien, encumbrance or other exception
arising as a result of any act or omission of Green or anyone
acting on behalf of Green be deemed a Title Objection.
(b) If any Title Objection is not cured by the Adjourned Closing
Date, unless the same is waived by Green, then Green may (i) by written notice
given to AZIW within eight (8) Business Days after the Adjourned Closing Date
or, if AZIW has not adjourned the Closing pursuant to Section 6(a), within eight
(8) Business Days after the Scheduled Closing Date, accept the Property subject
to such Title Objection without abatement of the Purchase Price, in which event
(x) such Title Objection shall be deemed to be, for all purposes, a Permitted
Encumbrance, (y) Green shall close hereunder notwithstanding the existence of
same, and (z) AZIW shall have no obligation whatsoever after the Closing Date
with respect to any failure of such Title Objection to be eliminated, or (ii)
terminate this Agreement by notice given to AZIW within eight (8) Business Days
following the Adjourned Closing Date or, if AZIW has not adjourned the Closing
pursuant to Section 6(a), within eight (8) Business Days after the Scheduled
Closing Date, TIME BEING OF THE ESSENCE, in which event Green shall be entitled
to a return of the Deposit. If Green fails to deliver the notice described in
clause (i) or (ii) above within the eight (8) Business Day period described
therein, TIME BEING OF THE ESSENCE, Green shall be deemed to have made the
election under clause (ii) of this Section 6(b). Upon the giving or deemed
giving of any termination notice under clause (ii) above, then upon the return
to Green of the Deposit, this Agreement shall terminate and neither party hereto
shall have any further rights or obligations hereunder other than those that are
expressly provided to survive the termination hereof. Upon Green's exercise of
the option under clause (i) above, AZIW shall serve such corresponding notices
and take such other action under the PSA to avoid any termination of the PSA and
to facilitate the conveyance of title to Green in accordance with this
Agreement.
(c) It is expressly understood that in no event shall AZIW be
required to bring any action or institute any proceeding, or to otherwise incur
any costs or expenses in order to attempt to eliminate any Title Objections or
to otherwise cause title to the Premises to be conveyed in accordance with the
terms of this Agreement on the Closing Date, subject to Sections 6(e), (f), (g)
and (h) and Section 21(c) below.
(d) If the Scheduled Closing Date shall have been adjourned to
facilitate the cure of Title Objections in accordance with the provisions of
Section 6(a), AZIW shall, upon the satisfactory cure thereof, promptly
reschedule the Scheduled Closing Date, upon at least eight (8) Business Days'
prior notice to Green (the "New Closing Notice"); it being agreed, however, that
if any matters which are Title Objections arise between the date the New Closing
Notice is given and the rescheduled Scheduled Closing Date, and Owner shall have
exercised its right under the PSA to again adjourn the Closing in order to
attempt to cause such Title Objections to be eliminated, by sending AZIW the
appropriate notice pursuant to the PSA, then AZIW shall adjourn the Closing for
a corresponding period or periods to facilitate the cure of such Title
Objections, it being agreed, however, that AZIW shall not be entitled to adjourn
the Scheduled Closing Date pursuant to this Article 6 for a period or periods in
excess of ninety (90) days in the aggregate.
(e) If any update to the Pro Forma Policy discloses judgments or
bankruptcies against other persons having names the same as or similar to that
of AZIW, AZIW shall deliver to the Title Company affidavits showing that such
judgments or bankruptcies are not against AZIW in order to induce the Title
Company to omit exceptions for such judgments, bankruptcies or other returns or
to insure over same.
(f) It shall be a condition to Green's obligation to close that
it receives (or in the event of a Closing under the Partnership Election, that
AZIW receives) a Title Policy from the Title Company, in the form of the Pro
Forma Policy which insures fee simple title to the Premises in the amount of the
Purchase Price, at normal rates and subject only to the Permitted Encumbrances.
(g) It is a condition to Green's obligations under this Agreement
that upon the Closing, the curent holder ("Nomura") of the existing loan of
Nomura (the "Nomura Loan"), as more particularly described in the loan agreement
dated June 25, 1997 between Owner and Nomura Asset Capital Corporation (the
"Nomura Loan Agreement") shall assign to Green's lender or other designee of
Green the mortgages securing and the notes evidencing the Nomura Loan upon
payment to Nomura at Closing of the amount necessary to repay the Nomura Loan in
full (the "Nomura Loan Amount") and deliver a full release in favor of Owner and
its members and affiliates, and any guarantors of any obligation under the
Nomura Loan (such assignment and release being referred to hereinafter
collectively as the "Nomura Assignment"). At Closing, Green shall pay the
amounts payable under Section 2.3.1(b)(ii)-(iii) of the Nomura Loan Agreement
not to exceed Five Million Six Hundred Thousand Dollars ($5,600,000.00) in the
aggregate (the "Prepayment Costs") and, other than amounts not exceeding Twenty
Five Thousand Dollars ($25,000) in the aggregate (which Green has already paid
to Nomura), Green shall not be obligated to pay any of Nomura's fees, costs or
expenses or other sums (including, without limitation, accrued interest or
penalties or late charges thereon) in connection with or in consideration of the
Nomura Assignment. Green shall not in any event be obligated to pay any
"breakage" or any other charge associated with the failure of the Nomura Loan to
be prepaid on a payment date under the Nomura Loan Documents (hereinafter
defined) or any fee, cost, expense or other consideration, including any
increase to the Prepayment Costs incurred or imposed as a result of any
extension of the Closing or the payment of the Nomura Loan after August 11,
1998. Other than the amounts expressly set forth in this Paragraph to be paid by
Green, AZIW shall be responsible for payment at Closing of all amounts imposed
in connection with the Nomura Loan, including, without limitation any Prepayment
Costs in excess of Five Million Six Hundred Thousand Dollars ($5,600,000.00). If
the Prepayment Costs are less than Five Million Six Hundred Thousand Dollars
($5,600,000.00), the Commission shall be increased by an amount equal to
sixty-five percent (65%) of the difference between Five Million Six Hundred
Thousand Dollars ($5,600,000.00) and the actual amount of the Prepayment Costs.
7. APPORTIONMENTS.
(a) The following, shall be apportioned between AZIW and Green as
of 11:59 p.m. on the day immediately preceding the Closing Date (the
"Apportionment Date")
(i) prepaid rents, fixed rents and additional rents payable
pursuant to the Leases (including, without limitation, operating
expense escalation payments, real estate tax escalation payments
and percentage rent, if any, payable under the Leases)
(collectively, "Rents") to be apportioned in accordance with
Section 7(b) hereof,
(ii) real estate taxes, sewer rents and taxes, water rates
and charges (to the extent not accounted for pursuant to clause
(i) above), vault charges and taxes, business improvement
district taxes and assessments and any other governmental taxes,
charges or assessments levied or assessed against the Premises
(collectively, "Property Taxes"), on the basis of the respective
periods for which each is assessed or imposed, to be apportioned
in accordance with Section 7(c) hereof;
(iii) administrative charges on security deposits held
pursuant to the Leases;
(iv) fuel, if any, based on a reading completed within five
(5) days prior to the Closing Date or, if not so completed, as
estimated by the supplier to the Premises, at current cost,
together with any sales taxes payable in connection therewith, if
any (a letter from such fuel supplier shall be conclusive
evidence as to the quantity of fuel on hand and the current cost
therefor);
(v) prepaid fees for licenses and other permits assigned to
Green at the Closing;
(vi) any amounts prepaid or payable by the owner of the
Property under the Contracts;
(vii) wages and fringe benefits (including, without
limitation, vacation pay, sick days, health, welfare, pension and
disability benefits) and other compensation payable to all
personnel employed at the Building, (including without
limitation, all employees employed by Owner's property manager);
and
(viii) such other items as are customarily apportioned in
accordance with real estate closings of commercial office
properties in the Borough of Manhattan. (b b) (i) If, on the
Apportionment Date, there are any past due Rents owing by any
tenant for a period through the Apportionment Date, Green shall
use its commercially reasonable efforts to collect the same after
the Closing Date (provided Green shall not be obligated to
institute legal proceedings against any tenant with regard to the
same and AZIW shall not be permitted thereafter to institute
legal proceedings against such tenant). Any Rent received from
any such tenant after the Closing Date shall be applied in the
following order of priority: (A) first, to Rent arrearages with
respect to the month in which the Closing Date shall occur
(subject to apportionment pursuant to Section 7(a) above), (B)
second, to Rent arrearages with respect to the month following
the month in which the Closing Date occurs (C) third, provided
all rent payable to Green with respect to the applicable tenant
for the period post-Closing is current, to Rent arrearages with
respect to the period preceding the month in which the Closing
Date shall occur, provided neither AZIW nor Owner has been
reimbursed for the same pursuant to Section 10(b) hereof, and (D)
all other Rent collected shall belong to Green.
(ii) If, as of the Closing Date, any Rents other than fixed
rents (including, without limitation, operating, expense
escalations, real estate tax escalations and percentage rent)
(collectively, "Lease Additional Rent") have not been billed or
have not been determined in accordance with the provisions of the
Leases or, if billed (and to the extent such amounts are
reflected on Schedule 8), have not been collected by the landlord
thereunder, Green shall (A) ▇▇▇▇ the same when billable, (B)
cooperate with AZIW to determine the correct amount of Lease
Additional Rent and (C) diligently pursue and use all
commercially reasonable efforts to achieve the collection of the
same (provided Green shall not be obligated to institute legal
proceedings against any tenant with regard to the same, and AZIW
shall not thereafter institute legal proceedings against such
tenants). If the final determination of Lease Additional Rent in
accordance with the Leases shows that a net amount is owed by
AZIW to Green, the portion of Lease Additional Rent attributable
to the period following the Apportionment Date shall be paid by
AZIW to Green within ten (10) Business Days of such final
determination under the Leases. If the final determination of
Lease Additional Rent in accordance with the Leases shows that a
net amount is owed by Green to AZIW, the portion of Lease
Additional Rent attributable to the period up to and including
the Apportionment Date shall be paid by Green to AZIW, or at
AZIW's written direction, to AZIW's designee, within ten (10)
Business Days of such final determination.
(iii) Any Rents received by AZIW or Green following the
Closing Date which are the property of the other (as determined
in accordance with this Section 7(b)) shall be paid to the other
within five (5) Business Days following receipt thereof.
(c) Property Taxes shall be apportioned on the basis of the
fiscal period for which assessed. If the Closing Date shall occur either before
an assessment is made or a tax rate is fixed for the tax period in which the
Closing Date occurs, the apportionment of such Property Taxes based thereon
shall be made on the Closing Date by applying the tax rate for the preceding
year to the latest assessed valuation, but, promptly after the assessment and/or
tax rate for the current year are fixed, the apportionment thereof shall be
recalculated and AZIW or Green, as the case may be, shall promptly make an
appropriate payment to the other based on such recalculation.
(d) If there are water meters on the Premises, the unfixed water
rates and charges and sewer rents and taxes covered by meters, if any, shall be
apportioned (i) on the basis of an actual reading completed within five (5) days
prior to Closing (with pro rated estimates of expenses for any days between such
reading and the Apportionment Date), or (ii) if such reading has not been so
completed, on the basis of the last available reading (with pro rated estimates
of expenses for any days between such reading and the Apportionment Date). If
the apportionment is not based on an actual current reading, then upon the
taking of a subsequent actual reading, such apportionment shall be readjusted
and AZIW or Green, as the case may be, shall promptly deliver to the other the
amount determined to be due upon such readjustment.
(e) Charges for all electricity, steam, gas and other utility
services (collectively, "Utilities") shall be apportioned on the basis of actual
current readings or, if such readings have not been made, on the basis of the
most recent bills that are available (with pro rated estimates of expenses for
any days between such reading or ▇▇▇▇ and the Apportionment Date). If any
apportionment is not based on an actual current reading, then, upon the taking
of a subsequent actual reading, such apportionment shall be readjusted and AZIW
or Green, as the case may be, shall promptly deliver to the other the amount
determined to be due upon such readjustment.
(f) Green shall make the payments required pursuant to Section
10(c) hereof.
(g) Green shall have no right to receive any rental insurance
proceeds which relate to the period prior to the Closing Date and, if any such
proceeds are delivered to Green, Green shall, within five (5) Business Days
following receipt thereof, pay the same to AZIW.
(h) Green agrees that it shall be responsible for the payment of
all Tenant Inducement Costs, leasing commissions (including, without limitation,
any so-called override fees and commissions payable to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Associates or any affiliate thereof and construction management fees payable to
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Associates or any affiliate thereof) which become due and
payable (whether before or after the Closing Date) arising from, relating to or
in connection with (A) any renewals, modifications, amendments or expansions of
existing Leases or other supplementary agreements relating thereto entered into
between the date hereof and the Closing Date that have been approved (or deemed
approved) by Green and (B) any new Leases entered into between the date hereof
and the Closing Date that have been approved (or deemed approved) by Green.
Green shall be responsible for (a) seventy-five percent (75%) of a full standard
leasing commission and for no other overrides or Tenant Inducement Costs in
connection with the proposed Modification of Lease Agreement between ▇▇▇▇▇▇ ▇▇▇
Marketing, Inc. and Owner, in the form of Exhibit S annexed hereto (the "LF
Modification"); (b) one full standard leasing commission and the other Tenant
Inducement Costs, leasing commissions and construction management fees, but no
other override fees, in connection with the proposed lease between Owner and
▇▇▇▇▇, Ltd. on the terms more particularly described on Exhibit T (the "▇▇▇▇▇
Lease"); and (c) the "Unpaid Tenant Inducements" shown on Schedule 2-B. AZIW
shall be responsible for leasing commissions, construction management fees,
override fees and Tenant Inducement Costs in connection with the LF Modification
or the ▇▇▇▇▇ Lease in excess of those amounts set forth in the immediately
preceding sentence and the "Paid Tenant Inducements" shown on Schedule 2-B. If
as of the Closing Date AZIW shall have paid any Tenant Inducement Costs, leasing
commissions or construction management fees, as aforesaid, for which Green is
responsible pursuant to this Section, Green shall reimburse AZIW therefor at
Closing provided that AZIW shall supply invoices and statements for all such
Tenant Inducement Costs, leasing commissions and construction management fees to
Green on or prior to the payment thereof. AZIW and Green shall review all Leases
and determine the approximate cost of all such post-Closing Tenant Inducement
Costs, leasing commissions and construction management fees which are payable
after Closing but for which AZIW is responsible ("AZIW Post-Closing TI Costs")
and the aggregate amount thereof shall be credited against the Purchase Price.
AZIW shall be relieved of all liability therefor, and thereafter Green shall pay
such amounts to or on behalf of the applicable tenants as they become due and
indemnify AZIW therefor; provided that when the parties have determined the
actual amount of such AZIW Post-Closing TI Costs, the parties shall further
adjust such amounts. For purposes hereof, the term "Tenant Inducement Costs"
shall mean any out-of-pocket payments required under a Lease to be paid by the
landlord thereunder to or for the benefit of the tenant thereunder which is in
the nature of a tenant inducement or concession, including, without limitation,
tenant improvement costs, design, refurbishment and other work allowances for
the initial occupancy of the space, lease buyout costs, and moving, allowances,
and all legal fees and expenses in connection with the foregoing (to the extent
legal fees relating to Leases on Schedule 2 have been provided for on Schedule
2). Any of the aforesaid Tenant Inducement Costs, leasing commissions and
construction management fees required to be paid by AZIW or Green pursuant to
this Section 7(h) shall be deposited by AZIW or Green, as applicable, into the
operating account for the Building controlled by Nomura (the "Nomura Account")
prior to Closing, but, with regard to Green's responsibility for Tenant
Inducement Costs, within three (3) Business Days after Green's approval or
deemed approval of such documents described in clauses (A) or (B) of this
Section 7(h) (it being expressly understood that Owner has full access to such
account and the right to make the withdrawals therefrom); and the amount so
deposited by Green, if any, shall be refunded or paid to Green in the event that
Green is entitled to a return of the Deposit as determined in accordance with
this Agreement; and the amount so deposited by Green shall be retained by AZIW
in the event that AZIW is entitled to the Deposit as determined in accordance
with this Agreement.
(i) At or prior to the Closing, AZIW and Green and/or their
respective agents or designees will jointly prepare a preliminary closing
statement (the "Preliminary Closing Statement") which will show the net amount
due either to AZIW or to Green as the result of the adjustments and prorations
provided for herein, and such net due amount will be added to or subtracted from
the cash balance of the Purchase Price to be paid to AZIW at the Closing
pursuant to Article 4 hereof, as applicable. Within one hundred twenty (120)
days following the Closing Date, AZIW and Green will jointly prepare a final
closing statement reasonably satisfactory to AZIW and Green in form and
substance (the "Final Closing Statement") setting forth the final determination
of the adjustments and prorations provided for herein and setting forth any
items which are not capable of being determined at such time (and the manner in
which such items shall be determined and paid). The net amount due AZIW or
Green, if any, by reason of adjustments to the Preliminary Closing Statement as
shown in the Final Closing Statement, shall be paid in cash by the party
obligated therefor within ten (10) Business Days following that party's receipt
of the approved Final Closing Statement. The adjustments, prorations and
determinations agreed to by AZIW and Green in the Final Closing Statement shall
be conclusive and binding on the parties hereto absent manifest error, except to
the extent that any such determinations are expressly subject to a longer
survival period hereunder. AZIW and Green agree that any items which are not
capable of being determined at the time the Final Closing Statement is prepared
shall be determined and paid in the manner set forth in the Final Closing
Statement. Prior to and following the Closing Date, each party shall provide the
other with such information as the other shall reasonably request in order to
make the preliminary and final adjustments and prorations provided for herein.
(j) Intentionally Deleted.
(k) The Prepayment Costs and other costs payable in connection
with the Nomura Assignment shall be paid in accordance with and subject to
Section 6(g).
(l) The Fee and Expense Deposit shall be credited to AZIW in
accordance with Section 21(g).
(m) The provisions of this Article 7 shall survive the Closing.
8. PROPERTY NOT INCLUDED IN SALE.
Notwithstanding anything to the contrary contained herein, it is
expressly agreed by the parties hereto that (a) any fixtures, furniture,
furnishings, equipment or other personal property (including, without
limitation, trade fixtures in, on, around or affixed to the Premises, owned or
leased from a third party by any tenant, managing, agent, leasing agent,
contractor, or employee at the Building (collectively, "Excluded Personalty")
and (b) all escrow or reserve accounts or other accounts of any nature
whatsoever held by or owing from Nomura (or any nominee or designee) in
connection with the Nomura Loan, including, without limitation, any reserves for
tenant improvements, taxes, insurance, interest, required repairs, operating and
maintenance, or other reserves required under the documents relating to the
Nomura Loan (the "Nomura Loan Documents"), shall not be included in the Property
to be sold to Green hereunder. The provisions of this Article 8 do not apply to
the escrow account described in Section 10(c).
9. COVENANTS OF AZIW; CONDITIONS TO CLOSING.
(a) From the date of this Agreement until the Closing Date, AZIW
shall:
(i) not enter into any agreement (including any new
Contracts or Leases) with respect to all or any portion of the
Property, any interest therein or any interest in AZIW,
including, without limitation, as to the leasing, management,
financing, operation, sale or encumbrance thereof, whether
directly or indirectly, except for such ministerial agreements as
shall be necessary to facilitate the closing of AZIW's purchase
of the Property in accordance with the PSA and for such
agreements with Green as are contemplated by this Agreement;
(ii) maintain the PSA in full force and effect and take all
such actions as shall be necessary to facilitate the Closing of
AZIW's purchase of the Property in accordance with the PSA;
(iii) not take any action or fail to take any action that
could impair, impede or delay the sale of the Property to AZIW on
the Closing Date in accordance with the PSA;
(iv) not, without Green's prior written consent, which shall
not be unreasonably withheld, make any request of Owner under the
PSA, except as may be necessary to facilitate AZIW's compliance
with its obligations under this Agreement;
(v) subject to Section 9(b), not consent to any demand of
Owner under the PSA or make any election or waive any right under
the PSA if such consent, election or waiver could impair, impede
or delay the sale of the Property to AZIW on the Closing Date in
accordance with the PSA or adversely affect of the condition of
the Property or title thereof, including, without limitation, the
exercise of any waiver or election with regard to Violations
under Section 5(i) of the PSA; and
(vi) deliver to Green and its attorneys upon AZIW's receipt
thereof copies of all notices received pursuant to or in
connection with the PSA and otherwise keep Green informed on a
current basis of all discussions and other communications with
Owner or its counsel pursuant to or in connection with the PSA.
(b) From the date of this Agreement until the Closing Date, AZIW
shall not, without Green's prior written consent, which consent shall not be
unreasonably withheld with regard to any item for which AZIW's consent may not
be unreasonably withheld under the PSA:
(i) consent to or suffer the termination, amendment or
modification of any existing Lease, or permit Owner to enter into
any new Lease for space at the Premises, other than the
termination of any Lease as a result of the tenant's default
thereunder, or agree to or suffer the expenditure any Tenant
Inducement Costs not expressly provided for under the terms of
any existing Lease;
(ii) consent to or suffer the amendment or modification
(other than non-material amendments or modifications) or renewal
of any of the Contracts;
(iii) consent to or suffer the execution of any new
Contracts; or
(iv) consent to or suffer the hiring of any new employees
who would, upon termination by Green at any time within one month
of the Closing, be entitled to severance or any other termination
related benefits.
(c) Whenever in this Article 9 AZIW is required to obtain Green's
approval with respect to any transaction or consent described therein, Green
shall, within four (4) Business Days after receipt of AZIW's request therefor,
notify AZIW of its approval or disapproval of same and, if Green fails to notify
AZIW of its disapproval within said four (4) Business Day period, Green shall be
deemed to have approved same, TIME BEING OF THE ESSENCE.
(d) Intentionally Deleted.
(e) AZIW covenants that so long as this Agreement is in full
force and effect and Green is not in default hereunder, AZIW shall not consent
to or suffer the amendment or modification any of the loan documents relating to
the Nomura Loan, without the consent of Green.
(f) Notwithstanding anything contained in this Agreement to the
contrary, the obligation of Green to acquire the Property on the Closing Date
shall, in addition to any other conditions set forth in this Agreement, be
contingent and conditioned upon satisfaction of the following conditions:
(i) Owner and ▇▇▇▇▇▇ ▇▇▇ Marketing, Inc. shall have entered
into the LF Modification and Owner and ▇▇▇▇▇, Ltd. shall have
entered into the ▇▇▇▇▇ Lease. The LF Modification shall be in the
form of Exhibit S annexed hereto and the ▇▇▇▇▇ Lease shall be in
the form of Exhibit T annexed hereto except for (a) immaterial
changes; and (b) with respect to the ▇▇▇▇▇ Lease, changes
consistent with other leases in the Premises of comparable size.
In no event, however, may there be any change to the rent,
additional rent, Tenant Inducement Costs or other financial terms
of or under the LF Modification or the ▇▇▇▇▇ Lease, the use,
location or size of the space thereunder, or in the obligations
of the landlord thereunder without Green's prior written consent,
which consent shall not be unreasonably withheld; and
(ii) all Leases on Schedule 2-A (other than the proposed
Lease with Arial B) shall be in full force and effect. The
foregoing conditions with respect to the LF Modification and the
▇▇▇▇▇ Lease shall be deemed satisfied only if all such documents
shall, prior to or upon Closing, be the valid, binding and
enforceable obligations of the tenants thereunder, in full force
and effect and subject to no conditions other than the
obligations of the landlord described therein to be performed
after the Closing Date.
(g) AZIW shall use its best efforts (excluding, however the
obligation to make any payment or provide any economic consideration or
concession) to amend Section 6.01 of the ▇▇▇▇▇ Lease by inserting after the word
"manufacturing" the following parenthetical: "(provided that manufacturing shall
be limited to light manufacturing as an accessory to tenants showroom and office
space, shall in no event be the primary use of the Demised Premises and shall be
conducted in accordance with the Buildings Certificate of Occupancy and the
other conditions and requirements of this lease)".
10. ASSIGNMENTS AND ASSUMPTIONS; SECURITY DEPOSITS; EMPLOYEES
(a) On the Closing Date, AZIW shall assign to Green or cause to
be assigned to Green, without recourse, representation or warranty (except as
expressly set forth in this Agreement), and Green agrees to assume all
obligations accruing on and after the Closing Date under, the documents
described in clauses (i), (ii) and (iii) below:
(i) the leases, licenses and other occupancy agreements
demising space at the Premises which are then in effect
(individually, a "Lease" and collectively, "Leases"), together
with any security deposited by the tenants thereunder;
(ii) the service, maintenance, supply and other agreements
relating to the operation of the Premises, which are then in
effect (collectively, "Contracts"); and
(iii) the transferable permits, licenses and intangibles, if
any, relating to the Property and the other intangible
Personalty.
(b) Green acknowledges that prior to the Closing, Owner may (i)
apply any security deposits held under Leases in respect of defaults by tenants
under the applicable Leases and (ii) return the security deposit of any tenant
thereunder who is entitled to the return of such deposit pursuant to the terms
of its Lease. If Owner takes the action described in clause (i) above to apply a
security deposit, AZIW shall indemnify Green against, and hold Green harmless
from, any claim made by any such tenant against Green in connection therewith.
At the Closing, AZIW shall transfer or cause to be transferred to Green the
security deposits held by Owner as of the Apportionment Date not applied to
defaults or returned to tenants as above provided. To the extent that any such
security deposit to be so transferred which is comprised of a letter of credit
shall not be transferable as of the Closing, AZIW and Green shall cooperate with
each other (and AZIW shall cooperate with Owner as required under the PSA)
following the Closing so as to cause the transfer to Green of the same or to
obtain a replacement letter of credit with respect thereto in favor of Green
and, in either case, Green shall upon receipt thereof assume the obligations
with respect to such security deposit pursuant to an assumption agreement
reasonably acceptable to AZIW and Green. Until any such letter of credit shall
be transferred or replaced, AZIW shall hold the same, or cause the same to be
held, for the benefit of Green and shall draw upon the same, or cause the same
to be drawn upon, and deliver the proceeds to Green or return the same, or cause
same to be returned, to the applicable tenant, in each case upon Green's written
request, provided that Green shall indemnify and hold harmless AZIW from any and
all loss, cost, damage, liability or expense (including, without limitation,
reasonable attorneys' fees, court costs and disbursements) incurred by AZIW as a
result of any such actions taken by AZIW at Green's request. The provisions of
this Section 10(b) shall survive the Closing.
(c) AZIW shall transfer or cause to be transferred to Green at
Closing that certain tenant improvement reserve account held by TitleServ, Inc.
in connection with the ▇▇▇▇▇▇ A.S.L., Ltd. (successor by name chance to Sassco
Fashions, Ltd.) Lease. At Closing, the Purchase Price shall be reduced by the
balance in said reserve account transferred to Green as of the Closing Date and
Green shall pay AZIW at Closing, in addition to all other amounts owing
hereunder, an amount equal to the amount in the account so transferred and
credited. The parties understand that the amount in the account as of March 31,
1998 was One Million Seven Hundred Fifty-Two Thousand Nine Hundred Eighty-Two
and 07/100 Dollars ($1,752,982.07).
(d) Green agrees that, effective as of the Closing Date, all
employees at the Building set forth on Schedule 3 who are union employees shall
be offered the same employment by Green (or by the property manager to be
engaged by Green) under their then current employment contracts or agreements,
including any collective bargaining agreements. Green acknowledges that in the
event it terminates any of such union employees or if it terminates Harvard
Cleaning, Inc. or Manhattan Securities, Inc. or requires those companies to
reduce their Premises-related services or employees at the Premises from those
listed on Schedule 3 and, as a result, any of the union employees engaged by
such companies are terminated, certain termination benefits may be payable with
respect to such terminated employees. Green agrees that it shall be liable for
all termination benefits with respect to the union employees listed on Schedule
3 and hereby agrees to indemnify and hold harmless AZIW and the AZIW Related
Parties from and against any loss, cost, damage, liability or expense
(including, without limitation, reasonable attorneys' fees, court costs and
disbursements) incurred by AZIW or any other AZIW Related Party arising from or
by reason of Green's failure to pay termination benefits as and when payable
with regard to any union employee listed on Schedule 3. The provisions of this
Section 10(d) shall survive the Closing.
11. REPRESENTATIONS.
(a) Green expressly acknowledges that, except as expressly set
forth in this Agreement, neither AZIW, nor any person acting on behalf of AZIW,
nor any person or entity which prepared or provided any of the materials
reviewed by Green in conducting its due diligence, nor any direct or indirect
officer, director, partner, shareholder, employee, agent, representative,
accountant, advisor, attorney, principal, affiliate, consultant, contractor,
successor or assign of any of the foregoing parties (AZIW, and all of the other
parties described in the preceding portions of this sentence (other than Green)
shall be referred to herein collectively as the "Exculpated Parties") has made
any oral or written representation or warranty, whether expressed or implied, by
operation of law or otherwise, with respect to the Property, the zoning and
other laws, regulations and rules applicable thereto or the compliance by the
Property therewith, the revenues and expenses generated by or associated with
the Property, or otherwise relating, to the Property or the transactions
contemplated herein. Green further acknowledges that, except as expressly set
forth below all materials which have been provided by any of the Exculpated
Parties have been provided without any warranty or representation, express or
implied as to their content, suitability for any purpose, accuracy, truthfulness
or completeness, and Green shall not have any recourse against AZIW or, except
as provided herein, any of the other Exculpated Parties in the event of any
errors therein or omissions therefrom. Green is acquiring the Property based
solely on its own independent investigation and inspection of the Property and
not in reliance on any information provided by AZIW, or any of the other
Exculpated Parties, except for the representations expressly set forth herein.
(b) AZIW hereby represents and warrants to Green as of the date
hereof, and as of the Closing, as follows:
(i) The Leases listed on Schedule 4 are the only leases,
licenses, tenancies, possession agreements and occupancy
agreements affecting the Premises on the date hereof and there
are no other leases, licenses, tenancies, possession agreements
or occupancy agreements affecting the Premises; such Leases,
except as indicated otherwise on Schedule 4 are in full force and
set forth the entire agreement between Owner and the tenants for
the use and occupancy of the Premises; to AZIW's knowledge, the
lessor under such Leases has not received any notice that it is
in default of any of its obligations under such Leases which has
not been cured; fixed rent and additional rent are being billed
to the tenants in accordance with Schedule 4; no tenant is in
arrears in the payment of rent for more than the current calendar
month, except as set forth on Schedule 4; no notice of default
has been sent to any tenant under the Leases which remains
uncured; no tenant is entitled to "free" rent, rent concessions,
rebates rent abatements, set-offs, or offsets against rent or
tenant improvement allowances except as set forth in the Lease
with such tenant and no tenant claims a right to any of the
foregoing, except as set forth on Schedule 4; no waiver,
indulgence or postponement of any tenant's obligation under any
Lease is in effect nor has any been provided; no tenant is
contesting its share of tax increases or operating expenses as
required by its Lease or any rent, escalation or other charges
billed to it and no tenant has claimed that any work required to
be performed by the lessor under each of the Leases has not been
completed in violation of the applicable Lease (provided that
with respect to any tenant claim for uncompleted work not
constituting a default under the applicable Lease, the payment of
the cost for such work shall be adjusted at Closing in accordance
with Section 7(h)).
(ii) The Leases listed on Schedule 2-A are all of the
leases, lease modifications and lease amendments currently under
negotiation between AZIW and/or Owner; true and complete copies
of all of same have been provided to Green; as of Closing all of
the statements in Section 11(b)(i) shall be deemed made and shall
be true as to all of same other than the proposed Lease with
Arial B.
(iii) Green acknowledges that it has received and reviewed a
copy of the notice from Steilman by ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to
which said tenant has exercised its right to terminate its Lease.
Further, Green acknowledges that Owner has received numerous
complaints from tenants regarding the blockage of windows in
certain tenant spaces.
(iv) That certain lease between Owner and Fashion Gallery
Pavilion, Inc., successor-in-interest to 1412 Pavilion Suites,
Inc. ("Pavilion Lessee"), dated June 1, 1994 (the "Pavilion
Lease"), is in full force and effect and no default exists
thereunder. All sublessees and other parties occupying any space
in the Premises pursuant to a sublease with the Pavilion Lessee
are current in the payment of rent and other charges, except as
reflected on Schedule 5, and the Pavilion Lessee has not received
any written notice from any sublessee or other occupant alleging
any default thereunder by the Pavilion Lessee. The Pavilion
Lessee's interest in the Pavilion Lease shall be assigned at
Closing to Green or its designee thereof free and clear of liens
and encumbrances except for Permitted Encumbrances. Green
acknowledges that Owner and/or the Pavilion Lessee have received
several complaints from sublessees regarding the blockage of
windows in certain sublessee spaces.
(v) Attached hereto as Schedule 6 is a true, correct and
complete list of the Contracts in effect as of the date hereof.
(vi) Attached hereto as Schedule 7 is a true, correct and
complete list of the security deposits currently held under the
Leases in effect as of the date hereof.
(vii) Attached hereto as Schedule 8 is a tenant arrearage
schedule which, as to arrearages accruing during Owner's period
of ownership, is true, correct and complete in all material
respects.
(viii) Except for the matters set forth on Schedule 9, there
is no action, suit, litigation, hearing or administrative
proceeding pending, or, to AZIW's knowledge, threatened with
respect to all or any portion of the Premises.
(ix) There are no condemnation or eminent domain proceedings
pending or, to AZIW's knowledge, threatened against the Premises.
(x) Except as set forth on Schedule 10, there are no
employment, union or other similar agreements to which AZIW is a
party and relating to the Premises (the agreements set forth on
Schedule 10 being referred to, collectively, as the "Employment
Agreements").
(xi) No employees at the Premises are employed by either
Owner or the Premises. All of the employees at the Premises are
employed by Owner's property manager, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Associates, some of which employees are union members. Green may
retain or discharge any such employees, provided, however, that
if Green discharges any such employee, or otherwise elects not to
continue his/her employment, then Green shall be responsible for
the payment of any and all severance and other costs payable in
connection therewith. Schedule 11 annexed hereto is a list of all
such employees currently employed by Owner's property manager at
the Premises.
(xii) AZIW (A) is a limited liability company duly
organized, validly existing in good standing under the laws of
New York and (B) has all requisite power and authority to enter
into and carry out the transactions contemplated by this
Agreement.
(xiii) To AZIW's knowledge Owner has not received, since
Owner has owned the Property, any written notice from the
Department of Environmental Protection or any other governmental
authority regarding any alleged violation of any environmental
law, rule or regulation.
(xiv) To AZIW's knowledge, Owner has not received any
written notice that Owner has committed a default under the
Nomura Loan Documents or that any condition exists which, with
the passage of time or the giving of notice, would result in an
event of default which, in either case, could cause a failure to
deliver the Nomura Assignment at Closing.
(xv) This Agreement constitutes the legal, valid and binding
obligation of AZIW, enforceable against AZIW in accordance with
its terms. AZIW has taken all necessary action to authorize and
approve the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement.
(xvi) No action, suit, claim, investigation or proceeding,
whether legal or administrative or in mediation or arbitration,
is pending or, to the best of AZIW's knowledge, threatened, at
law or in equity, against Owner or AZIW before or by any court or
federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which would
prevent AZIW from performing its obligations pursuant to this
Agreement, and there are no judgments, decrees or orders entered
on a suit or proceeding against Owner or AZIW, an adverse
decision in which might, or which judgment, decree or order does,
adversely affect AZIW's ability to perform its obligations
pursuant to, or Green's rights under, this Agreement, or which
seeks to restrain, prohibit, invalidate, set aside, rescind,
prevent or make unlawful this Agreement or the carrying, out of
this Agreement or the transactions contemplated hereby.
(xvii) The execution and delivery of this Agreement and the
performance by AZIW of its obligations hereunder do not and will
not conflict with or violate any law, rule, judgment, regulation,
order, writ, injunction or decree of any court or governmental or
quasi-governmental entity with jurisdiction over AZIW, including,
without limitation, the United States of America, the State of
New York or any political subdivision of either of the foregoing,
or any decision or ruling of any arbitrator to which AZIW is a
party or by which AZIW is bound or affected.
(xviii) AZIW has delivered to Green true, correct and
complete copies of the Nomura Loan Agreement and the loan
documents relating to the Nomura Loan, none of which have been
amended or modified.
(xix) The PSA constitutes the legal, valid and binding
obligation of AZIW enforceable against AZIW in accordance with
its terms; the PSA is in full force and effect; Owner has
asserted no claims by or against AZIW that AZIW is in default of
the PSA; and the PSA has not been amended, modified, rescinded or
assigned by any party thereto other than in valid, binding and
enforceable written agreements previously delivered to Green. For
purposes of determining whether the representations in this
Section (xix) are true as of Closing, the fact that Owner may be
objecting to AZIW having entered into this Agreement, or
consummating a Closing, with Green shall not be considered a
breach of this Section 11(b)(xix) provided such objection was not
raised to AZIW before the execution of this Agreement.
(xx) No Violation exists that would give AZIW the right to
terminate, or receive a credit against the purchase price under,
the PSA.
(c) The representations and warranties of AZIW contained in
Section 11(b) (collectively, the "AZIW Representations" and each an "AZIW
Representation") shall survive the Closing for six (6) months following the
Closing Date. Each AZIW Representation shall automatically be null and void and
of no further force and effect after six (6) months following the Closing Date
unless, prior to the end of such six (6) month period, Green shall have
commenced a legal proceeding against AZIW alleging that AZIW shall be in breach
of such AZIW Representation and that Green shall have suffered actual damages as
a result thereof (a "Proceeding"). If Green timely commences a Proceeding, and a
court of competent jurisdiction, pursuant to a final, non-appealable order in
connection with such Proceeding, determines that (1) the applicable AZIW
Representation was breached as of the date of this Agreement or the date of
Closing and (2) Green suffered actual damages (the "Damages") by reason of such
breach and (3) subject to Section 11(e), Green did not have actual knowledge of
such breach prior to the Closing, then Green shall be entitled to receive an
amount equal to the Damages; provided, however, Green shall not pursue any claim
against AZIW that causes damage to Green that is less than the Floor (as
hereinafter defined). As used herein, the term "Floor" shall mean with respect
to any claim or claims against AZIW for breach of any of AZIW's Representations,
One Hundred Thousand Dollars ($100,000). For purposes of construing the
foregoing provisions of this Section 11(c), the parties agree that (i) if Green
has a single claim against AZIW which is less than One Hundred Thousand Dollars
($100,000), then Green shall not be entitled to pursue such claim unless and
until such claim aggregates One Hundred Thousand Dollars ($100,000) as provided
in clause (iii) below, (ii) if Green has a single claim against AZIW that is
more than One Hundred Thousand Dollars ($100,000), then Green shall be entitled
to pursue the actual loss suffered by Green in connection with such claim
against AZIW, and, if Green is successful, AZIW shall reimburse Green for the
full amount of such claim, subject to the immediately succeeding sentence, and
(iii) if Green has multiple claims against AZIW that aggregate more than One
Hundred Thousand Dollars ($100,000), then Green shall be entitled to pursue such
claims against AZIW, and, if Green is successful, AZIW shall reimburse Green for
an amount equal to the full amount of all such claims in excess of One Hundred
Thousand Dollars ($100,000), subject to the immediately succeeding sentence
(e.g., if there are seven (7) claims of Two Hundred Thousand Dollars ($200,000)
each, then AZIW's liability would be One Million Three Hundred Thousand Dollars
($1,300,000)). In no event shall Green be entitled to receive in connection with
any and all breaches of the AZIW Representations an aggregate amount in excess
of the Ceiling (as hereinafter defined). As used herein, the term "Ceiling"
shall mean Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00)
with respect to any claim or claims against AZIW for breach of AZIW's
Representations. For purposes of this Section 11(c), Green shall be deemed to
have actual knowledge if Green and/or its affiliates and their respective
officers, employees, agents, representatives or consultants had knowledge of the
fact in issue prior to Closing.
(d) Intentionally Deleted.
(e) The AZIW Representations are subject to the following
limitations: (i) to the extent that AZIW has delivered to Green any Leases or
Contracts or provided any other information with respect to the Property at any
time prior to the date hereof and such Leases, Contracts or other information
containing provisions inconsistent with any of such AZIW Representations, then
such AZIW Representations shall be deemed modified to conform to such provisions
and (ii) AZIW shall have no liability with respect to any incorrect information
set forth in any tenant estoppel certificate, except that if any tenant estoppel
certificate with any AZIW Representation is inconsistent and the tenant estoppel
certificate proves correct, then the corresponding AZIW Representation shall be
deemed a misrepresentation. For purposes of this Article 11, AZIW's knowledge
shall be deemed to be the actual knowledge of AZIW and/or its affiliates and
their respective officers, employees, agents, representatives or consultants
engaged in the transaction contemplated hereby and the transaction under the
PSA. AZIW shall deliver to Green at Closing a memorandum discussing whether the
representations set forth in Section 11(b) remain true and correct as of the
Closing Date (with the appropriate knowledge qualifiers), and, if said
representations are no longer true or correct, identifying in which ways said
representations have changed (the "Representation Memorandum"), and except as
otherwise expressly set forth in this Agreement, the fact that any AZIW
Representation is not true and correct as of the Closing Date, whether disclosed
in the Representation Memorandum or not, shall not give Green the right to
terminate this Agreement or bring suit against AZIW for damages. If Green
discovers prior to Closing that any AZIW Representation under Sections 11(b)(i),
(ii), (iii), (iv), (v), (vi), (vii), (x), (xi), (xix) or (xx) (collectively,
"Income/Expense Representations" and each an "Income/Expense Representation")
was inaccurate when made or is inaccurate at the time of Closing and the
aggregate loss to the value of the Property (as determined jointly by Green and
AZIW) as a result of or related to such breach exceeds the amount of the
Commission payable at Closing, then Green shall have the right to pursue its
remedies under Section 21(b) unless AZIW, in its sole discretion, elects to (i)
cure any such defect or (ii) reduce the Purchase Price by an amount that
approximates the reduction in value of the Property (as determined jointly by
Green and AZIW) as a result of or related to such breach, and, in either case,
the parties shall proceed to Closing, provided in the case of clause (i) that
such breach is cured upon the Closing Date to the reasonable satisfaction of
Green. If Green discovers prior to Closing any inaccuracy in an Income/Expense
Representation and the aggregate loss to the value of the Property (as
determined jointly by Green and AZIW) as a result of or related to such
inaccuracy is less than or equal to the amount of the Commission payable at
Closing, then:
(i) to the extent the loss in value to Property is
attributable to a claim or other contingent liability, upon the
Closing Green shall deposit with Escrow Agent a portion of the
Commission equal to the aggregate projected loss in value
attributable to such claims or other contingent liabilities (as
estimated by Green in good faith) and Escrow Agent shall invest
and hold such portion of the Commission in accordance with
Exhibit B. If by the date that is six (6) months after the
Closing Date there shall have been no assertion of any such claim
or contingent liability, Escrow Agent shall release such portion
of the Commission to Manhattan Pacific. If, however, there shall
be an assertion of any such claim or contingent liability at any
time within the six (6) months after the Closing Date, then
Escrow Agent shall continue to hold such portion of the
Commission until authorized to release same in writing by AZIW
and Green or in the event of an adjudication by a court of
competent jurisdiction, in accordance with such adjudication. It
is expressly understood that the escrow of any portion of the
Commission deposited hereunder shall not limit Green's recovery
if the obligations to Green under Section 11(c) if the applicable
liability to Green under Section 11(c) exceeds such portion of
the Commission; and
(ii) to the extent any loss in value to the Property can be
reduced to a liquidated sum certain as of the Closing, then upon
the Closing the Commission shall be reduced by an amount equal to
the aggregate loss in value attributable to items that can be
reduced to a liquidated sum certain.
(iii) The AZIW Representations under Section 11(b)(viii),
(ix), (xii), (xiii), (xiv), (xv), (xvi), (xvii) and (xviii)
(collectively, "Non-Financial Representations" and each a
"Non-Financial Representation") shall be deemed to be to AZIW's
knowledge with respect to documents executed, information
acquired, proceedings commenced, or otherwise, or the absence
thereof, during and/or relating to the period prior to March 25,
1998. If Green discovers prior to Closing that any Non-Financial
Representation as of the date hereof is inaccurate as the result
of any act, occurrence or state of facts first occurring or
existing on a date prior to the date Owner took title to the
Property and such inaccuracy results in a net reduction on the
net cash flow generated by the Property in an amount equal to or
greater than Five Hundred Thousand Dollars ($500,000) per year in
any future year, then Green shall have the right to terminate
this Agreement unless AZIW, in its sole discretion, elects to (i)
cure any such defect or (ii) to reduce the Purchase Price by an
amount that approximates the reduction in value of the Property
as a result of such material misrepresentation, and, in either
case, this Agreement shall not terminate and the parties shall
proceed to Closing, provided in the case of clause (i) that such
material representation is cured to the reasonable satisfaction
of Green. Nothing contained in this Section 11(e) shall be deemed
to limit Green's rights set forth in Section 11(c) with respect
to Green's rights after the Closing. If Green terminates this
Agreement pursuant to this Section 11(e), Green shall be entitled
to a return of the Deposit and, upon such return neither party
hereto shall have any rights or obligations hereunder to the
other except as expressly provided herein.
(f) Green represents and warrants to AZIW as of the date hereof
that:
(i) Green is a limited liability company duly organized,
validly existing and in good standing under the laws of the State
of New York and has the requisite power and authority to carry on
its business in the State of New York as it is now being
conducted and to carry out the transactions contemplated by this
Agreement.
(ii) This Agreement constitutes the legal, valid and binding
obligation of Green, enforceable against Green in accordance with
its terms. Green has taken all necessary action to authorize and
approve the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement.
(iii) No action, suit, claim, investigation or proceeding,
whether legal or administrative or in mediation or arbitration,
is pending or, to the best of Green's knowledge, threatened, at
law or in equity, against Green before or by any court or
federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which would
prevent Green from performing, its obligations pursuant to this
Agreement, and there are no judgments, decrees or orders entered
on a suit or proceeding against Green, an adverse decision in
which might, or which judgment, decree or order does, adversely
affect Green's ability to perform its obligations pursuant to, or
AZIW's rights under, this Agreement, or which seeks to restrain,
prohibit, invalidate, set aside, rescind, prevent or make
unlawful this Agreement or the carrying, out of this Agreement or
the transactions contemplated hereby.
(iv) The execution and delivery of this Agreement and the
performance by Green of its obligations hereunder do not and will
not conflict with or violate any law, rule, judgment, regulation,
order, writ, injunction or decree of any court or governmental or
quasi-governmental entity with jurisdiction over Green,
including, without limitation, the United States of America, the
State of New York or any political subdivision of either of the
foregoing, or any decision or ruling of any arbitrator to which
Green is a party or by which Green is bound or affected.
(v) Green has received and reviewed the Nomura Loan
Documents and, specifically, the provisions relating to the
Prepayment Costs, and Green acknowledges that AZIW has made no
representation whatsoever with respect to the amount of the
Prepayment Costs.
(g) The representations and warranties of Green contained in
Section 11(f) (other than subsection (v)) shall survive the
Closing for six (6) months following the Closing Date. Each such
representation and warranty shall automatically be null and void
and of no further force and effect after six (6) months following
the Closing Date unless, prior to the end of such six (6) month
period, AZIW shall have commenced a legal proceeding against
Green alleging that Green shall be in breach of such
representation or warranty and that AZIW shall have suffered
actual damages as a result thereof. If AZIW shall have timely
commenced a Proceeding and a court of competent jurisdiction
shall, pursuant to a final, non-appealable order in connection
with such Proceeding, determines that (1) any of the applicable
representation or warranty was incorrect, false, misleading or
inaccurate as of the date of this Agreement and (2) AZIW suffered
Damages by reason of such breach and (3) AZIW did not have actual
knowledge or constructive knowledge of such breach on or prior to
the Closing Date, then AZIW shall be entitled to receive an
amount equal to the Damages.
(h) The provisions of this Article 11 shall survive the
Closing, but, in the case of the representations and warranties
set forth in Sections 11(b) and 11(f), such survival shall be
limited to the extent set forth in Sections 11(c) and 11(g).
12. DAMAGE AND DESTRUCTION.
If all or any part of the Building is damaged by fire or other
casualty occurring following the date hereof and prior to the Closing Date,
whether or not such damage affects a material part of the Building, then neither
party shall have the right to terminate this Agreement and the parties shall
nonetheless consummate this transaction in accordance with this Agreement,
without any abatement of the Purchase Price or any liability or obligation on
the part of AZIW by reason of said destruction or damage. In such event, AZIW
shall assign (or cause to be assigned) to Green and Green shall have the right
to make a claim for and to retain any casualty insurance proceeds received under
the casualty insurance policies in effect with respect to the Premises net of
(i) any costs incurred by Owner in connection with settling any such insurance
claims and (ii) any costs incurred by Owner (whether funded from such insurance
proceeds or not) to repair or rebuild, in part or in whole, the Property.
Further Green shall receive a credit from the cash due at Closing for the amount
of the deductible on such casualty insurance policy. The provisions of this
Article 12 supersede the provisions of Section 5-1311 of the General Obligations
Law of the State of New York.
13. CONDEMNATION.
(a) If, prior to the Closing Date, any part of the Premises is
taken (other than a temporary taking), or if Owner or AZIW shall receive an
official notice from any governmental authority having eminent domain power over
the Premises of its intention to take, by eminent domain proceeding, any part of
the Premises (a "Taking"), then:
(i) if such Taking involves less than or equal to ten
percent (10%) of the rentable area of the Building as determined
by an independent architect chosen by AZIW (subject to Green's
review and reasonable approval of such determination and the
provisions of Section 13(b) below), and does not materially and
adversely affect access to the Premises, neither party shall have
any right to terminate this Agreement, and the parties shall
nonetheless consummate this transaction in accordance with this
Agreement, without any abatement of the Purchase Price or any
liability or obligation on the part of AZIW by reason of said
Taking, provided, however, that AZIW shall, on the Closing Date
(i) assign and remit (or cause to be assigned and remitted) to
Green, and Green shall be entitled to receive and keep, the net
proceeds of any award or other proceeds of such Taking which may
have been collected by Owner and assigned to AZIW (i.e., the net
proceeds of such Taking less Owner's reasonable expenses incurred
in connection with such Taking), or (ii) if no award or other
proceeds have been collected, deliver (or cause to be delivered)
to Green an assignment of AZIW's right to any such award or other
proceeds which may be payable to Owner as a result of such
Taking, and Green shall pay AZIW an amount equal to the expenses
charged by Owner to AZIW in connection with such Taking;
(ii) if such Taking involves more than ten percent (10%) of
the rentable area of the Building as determined by an independent
architect chosen by AZIW (subject to Green's review and
reasonable approval of such determination and the provisions of
Section 13(b) below), or materially and adversely affects access
to the Premises, Green shall have the option, exercisable within
nine (9) Business Days after receipt of notice of such Taking,
TIME BEING OF THE ESSENCE, to terminate this Agreement by
delivering notice thereof to AZIW, whereupon the Deposit shall be
returned to Green and this Agreement shall be deemed canceled and
of no further force or effect, and neither party shall have any
further rights or liabilities against or to the other except
pursuant to the provisions of this Agreement which are expressly
provided to survive the termination hereof. If a Taking described
in this clause (ii) shall occur and Green shall not timely elect
to terminate this Agreement, then Green and AZIW shall consummate
this transaction in accordance with this Agreement, without any
abatement of the Purchase Price or any liability or obligation on
the part of AZIW by reason of such Taking, provided, however,
that AZIW shall, on the Closing Date, (i) assign and remit to
Green, and Green shall be entitled to receive and keep, the net
proceeds of any award or other proceeds of such Taking which may
have been collected by or assigned to AZIW as a result of such
Taking less the reasonable expenses incurred by AZIW in
connection with such Taking, or (ii) if no award or other
proceeds shall have been collected, deliver to Green an
assignment of AZIW's right to any such award or other proceeds
which may be payable to AZIW as a result of such Taking and Green
shall reimburse AZIW for the reasonable expenses incurred by AZIW
in connection with such Taking.
(b) The provisions of this Article 13 supersede the provisions of
Section 5-1311 of the General Obligations Law of the State of New York. Any
disputes under this Article 13 as to whether the Taking (i) involves more than
ten percent (10%) of the rentable area of the Building or (ii) materially and
adversely affects access to the Building shall be resolved by expedited
arbitration before a single arbitrator acceptable to both AZIW and Green in
their reasonable judgment in accordance with the rules of the American
Arbitration Association; provided that if AZIW and Green fail to agree on an
arbitrator within five days after a dispute arises, then either party may
request the Real Estate Board of New York, Inc. designate an arbitrator. Such
arbitrator shall be an independent architect having at least ten (10) years of
experience in the construction of office buildings in Manhattan. The costs and
expenses of such Arbitrator shall be borne equally by AZIW and Green.
14. BROKERS AND ADVISORS.
(a) Green represents and warrants to AZIW that it has not dealt
or negotiated with, or engaged on its own behalf or for its benefit, any broker,
finder, consultant, advisor, or professional in the capacity of a broker or
finder (each a "Broker") in connection with this Agreement or the transactions
contemplated hereby, other than Manhattan Pacific Management Co. Inc.
("Manhattan Pacific") whom Green has engaged as its buyer's broker in connection
with this Agreement and its acquisition of the Property. Green hereby agrees to
indemnify, defend and hold AZIW and the other AZIW Related Parties harmless from
and against any and all claims, demands, causes of action, losses, costs and
expenses (including reasonable attorneys' fees, court costs and disbursements)
arising from any claim for commission, fees or other compensation or
reimbursement for expenses made by any Broker other than Manhattan Pacific,
engaged by or claiming to have dealt with Green in connection with this
Agreement or the transactions contemplated hereby.
(b) AZIW represents and warrants to Green that it has not dealt
or negotiated with, or engaged on its own behalf or for its benefit, any Broker,
other than Manhattan Pacific, in connection with this Agreement or the
transactions contemplated hereby. AZIW hereby agrees to indemnify, defend and
hold Green and its direct and indirect shareholders, officers, directors,
partners, principals, members, employees, agents, contractors and any successors
or assigns of the foregoing, harmless from and against any and all claims,
demands, causes of action, losses, costs and expenses (including reasonable
attorneys' fees, court costs and disbursements) arising from any claim for
commission, fees or other compensation or reimbursement for expenses made by any
Broker, including Manhattan Pacific, engaged by or claiming to have dealt with
AZIW in connection with this Agreement or the transactions contemplated hereby,
except for the payments to be made by Green in accordance with Section 14(c)
below in connection with Green's engagement of Manhattan Pacific as its buyer's
broker in connection with this Agreement and Green's acquisition of the
Property.
(c) In consideration of the brokerage services rendered by
Manhattan Pacific in connection with the transactions contemplated by this
Agreement, Green shall pay Manhattan Pacific as its full and complete
compensation in connection with the transactions described in this Agreement:
Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000) (the
"Commission"). The Commission shall be deemed earned only as, if and when the
Closing occurs in accordance with this Agreement and (ii) if earned, shall be
payable at the Closing, subject to Section 11(c) above.
(d) By signing this Agreement, Manhattan Pacific hereby agrees
that:
(i) If for any reason or cause whatsoever the Closing shall
not have occurred, then (a) neither the Commission nor any other
compensation of any kind shall be deemed earned by Manhattan
Pacific or be payable by Green nor shall Green have any liability
to Manhattan Pacific for damages and (b) Green is released from
any and all liability to Manhattan Pacific for the Commission;
(ii) Intentionally Deleted;
(iii) In no event shall Green be obligated to institute any
legal or other proceedings to compel the sale or transfer of
title of the Property;
(iv) If any action is commenced to compel payment of the
Commission pursuant to a final unappealable order of a court of
competent jurisdiction, the prevailing party shall be entitled to
its reasonable attorneys' fees and expenses in connection
therewith, and if liability is apportioned pursuant to such
order, each party shall pay its own attorneys' fees and expenses;
and
(v) No representation, promise or inducement of any kind has
been made to Manhattan Pacific by Green.
(e) The provisions of this Article 14 shall survive the
termination of this Agreement or the Closing.
15. TAX REDUCTION PROCEEDINGS.
Owner has filed an application for the reduction of the assessed
valuation of the Premises for real estate taxes for the New York City fiscal
year July 1, 1998 to June 30, 1999 (the "98/99 Tax Year") with respect to which
proceeding AZIW has agreed to direct Owner. Provided Green is not in default
hereunder, AZIW shall confer with, and accept the direction of, Green with
respect to any direction to Owner about any decision to settle or prosecute the
tax reduction proceeding relating to the 98/99 Tax Year. The amount of any tax
refunds (net of attorneys' fees and other costs of obtaining such tax refunds)
with respect to any portion of the Premises for the tax year in which the
Apportionment Date occurs shall be apportioned between AZIW and Green as of the
Apportionment Date. To the extent that any tenant shall, in accordance with the
terms of its Lease, be entitled to receive a portion of any tax refunds which
AZIW or Green is entitled to receive hereunder, then AZIW or Green, as the case
may be, shall be obligated to pay such portion thereof to such tenant in
accordance with its Lease. If, in lieu of a tax refund for the 98/99 Tax Year, a
tax credit is received with respect to any portion of the Premises for any
future tax year, then (x) within thirty (30) days after receipt by AZIW or
Green, as the case may be, of evidence of the actual amount of such tax credit
(net of attorneys' fees and other costs of obtaining such tax credit), the tax
credit apportionment shall be readjusted between AZIW and Green, and (y) upon
realization by Green of a tax savings on account of such credit, Green shall pay
to AZIW an amount equal to its pro rata share of the savings realized (as
apportioned). The provisions of this Article 15 shall survive the Closing.
16. TRANSFER TAXES AND RECORDING CHARGES.
(a) At the Closing, AZIW and Green shall execute, acknowledge,
deliver and file all such returns as may be necessary to comply with Article 31
of the Tax Law of the State of New York and the regulations applicable thereto,
as the same may be amended from time to time (the "RET") and the New York City
Real Property Transfer Tax (Admin. Code Article 21) and the regulations
applicable thereto, as the same may be amended from time to time (the "RPT"). On
the Closing Date, and thereafter to the extent any additional taxes become
payable, AZIW shall pay to the appropriate party the amounts payable under the
RET and RPT, if any.
(b) Notwithstanding anything to the contrary contained herein,
upon written request of AZIW at least two (2) Business Days prior to the Closing
Date, Green shall bring to the Closing separate certified or bank checks in the
amount of the taxes due with respect to the RET and the RPT, if any, or arrange
for the funds to be wired to the Title Company, which amount shall be credited
against the Purchase Price payable on the Closing Date.
(c) Except as set forth in Sections 6(g) and 16(a) above, Green
shall be liable for the payment of its own fees (excluding AZIW's legal fees),
expenses, recording charges and taxes in connection with the conveyance of the
Property to Green (including, without limitation, the cost of obtaining Green's
own title insurance, recording fees, and all other title related expenses but
excluding the costs necessary to remove liens and encumbrances that are not
Permitted Encumbrances). It is expressly agreed, however, that Green shall have
no liability to pay or reimburse to AZIW any costs or expenses incurred under or
in connection with the PSA or the Closing thereunder or any amount payable to
Owner under the PSA not payable by Green hereunder, including, without
limitation, under Sections 4(b), 7(h) (to the extent not otherwise payable by
Green under Section 7(h) of this Agreement), 16(c) or Schedule J of the PSA.
(d) The provisions of this Article 16 shall survive the Closing.
17. DELIVERIES TO BE MADE ON THE CLOSING DATE.
(a) On the Closing Date, AZIW shall deliver or cause to be
delivered to Green the following:
(i) A duly executed and acknowledged Bargain and Sale Deed
Without Covenant Against Grantor's Acts in the form attached
hereto as Exhibit C;
(ii) A duly executed ▇▇▇▇ of Sale in the form attached
hereto as Exhibit D;
(iii) Originals or, if unavailable, certified copies, of the
Leases and Contracts then in effect to the extent delivered by
Owner under the PSA, provided that with respect to the Leases
listed on Schedule 2-A, originals regardless of whether same have
been delivered by Owner;
(iv) Letters to all tenants under the Leases in the form
attached hereto as Exhibit E;
(v) Originals or, if unavailable, copies, of plans and
specifications, technical manuals and similar materials for the
Building to the extent same are delivered by Owner under the PSA;
(vi) A duly executed certification as to AZIW's nonforeign
status as prescribed in Article 21 hereof, if appropriate, in the
form attached hereto as Exhibit F;
(vii) The cash security deposits (together with interest
accrued thereon less a 1% administrative fee) and letters of
credit, if any, held as security under the Leases, but only to
the extent the same have not been applied in accordance with the
Leases or returned to tenants and relate to tenants occupying
space in the Building on the Closing Date pursuant to Leases then
in effect (the "Transferred Security Deposits");
(viii) Originals or, if unavailable, copies of all books and
records relating to the Premises delivered by Owner under the
PSA;
(ix) Originals or, if unavailable, copies, of all permits,
licenses and approvals relating to the ownership, use or
operation of the Premises, to the extent delivered by Owner under
the PSA;
(x) Keys and combinations relating to the operation of the
Premises to the extent delivered by Owner under the PSA;
(xi) Executed tenant estoppel certificates from the Required
Tenants (as defined below) each in the form such Required Tenant
is obligated to deliver under its applicable Lease (subject to
(a) non-material modifications thereof, (b) such tenant making
note of items which constitute Permitted Encumbrances or which
AZIW otherwise agrees to discharge, and (c) modifications thereof
to conform the same to Leases or other information delivered to
Green or made available for its review). The "Required Tenants"
are: (1) The ▇▇▇▇▇▇ ▇▇▇ Companies Inc. (and/or its successor
▇▇▇▇▇▇ ▇▇▇ Marketing, Inc.), (2) Escada (USA) Inc., (3) ▇▇▇▇▇▇
A.S.L., Ltd. and (4) ▇▇▇▇▇ ▇▇▇▇▇, Inc.; and estoppel certificates
from all other tenants who have delivered estoppel certificates
under the PSA, but the delivery by such other tenants of estoppel
certificates shall not be deemed to be a required Closing
delivery and shall not otherwise be deemed to be a condition
precedent to Closing (it being agreed, however, that the
foregoing shall not be interpreted to affect any remedy Green may
otherwise have under Article 11 with respect to any
misrepresentations by AZIW). Green acknowledges that ▇▇▇▇▇ ▇▇▇▇▇,
Inc. may be currently attempting to sublet its premises and that
anything contained in the estoppel certificate from ▇▇▇▇▇ ▇▇▇▇▇,
Inc. indicating as much shall not be deemed grounds for Green to
object to the content of such estoppel certificate and shall not
be deemed inconsistent with any of AZIW's representations
contained herein;
(xii) A Representations Memorandum; and
(xiii) The Nomura Assignment.
AZIW shall be deemed to have delivered the items set forth in
clauses (iii), (v), (viii), (ix) and (x) above if the same are left in the
Building management office on the Closing Date.
(b) On the Closing Date, Green shall deliver or cause to be
delivered to AZIW (or as AZIW shall direct) the balance of the Purchase Price
(net of any other amounts owing to or by Green hereunder) payable at the
Closing, as adjusted for apportionments and adjustments in the manner required
under this Agreement subject to Article 18.
(c) AZIW and Green shall, on the Closing Date, each execute,
acknowledge (as appropriate) and exchange the following documents:
(i) The returns required under the RET, the RPT and any
other tax laws applicable to the transactions contemplated
herein;
(ii) An Assignment and Assumption of Leases and Contracts in
the form attached hereto as Exhibit G (Schedule A to said
document to include, without limitation, all subleases under the
Pavilion Lease and the interest of the lessee and sublessor under
the Pavilion Lease (such document to include, without limitation,
all of the right, title and interest of assignor thereunder in,
to and under the Personalty licenses and permits of the Pavilion
Lessee);
(iii) A General Assignment and Assumption Agreement in the
form attached hereto as Exhibit H;
(iv) Any other affidavit, document or instrument required to
be delivered by AZIW or Green pursuant to the terms of this
Agreement;
(v) A memorandum in the form attached hereto as Exhibit I to
be submitted for recording on the date hereof.
18. FORM OF CONVEYANCE.
(a) Notwithstanding anything contained in this Agreement to the
contrary, if prior to the Closing Date AZIW makes the "Nominee Election", the
"Partnership Election" or the "Assignment Election" (each as hereinafter
defined), then the applicable provisions of this Article 18 shall apply; it
being agreed that if AZIW makes neither the Nominee Election, the Partnership
Election nor the Assignment Election, then the provisions of this Article 18
shall be deemed inapplicable and the Closing shall occur without reference to
this Article 18.
(b) On or prior to the Scheduled Closing Date, AZIW may notify
Green that AZIW elects to take title to the Property from Owner under the PSA as
Green's nominee and will accept an appointment as Green's nominee for such
purpose (the "Nominee Election"). If AZIW makes the Nominee Election then
augmenting Article 17 of this Agreement, AZIW and Green hereby covenant and
agree that the obligation of Green to consummate the transactions contemplated
hereby at the Closing is further subject to the following conditions being
satisfied, and Green and AZIW hereby covenant and agree to take the actions
specified as to each of them respectively in this Section to satisfy such
conditions, on or before the Closing Date (unless otherwise provided in this
Section 18(b)). If any of the following conditions is not so satisfied (unless
the failure of such condition is due to Green's default under this Agreement),
then the Nominee Election shall be void and the provisions of this Section 18(b)
shall be inapplicable:
(i) Prior to the closing under the PSA, Green and AZIW shall
have executed the Nominee Agreement annexed hereto as Exhibit K
(the "Nominee Agreement").
(ii) AZIW, as Green's nominee, shall have closed the
transaction under the PSA in accordance with the PSA, subject to
the following conditions:
(A) To the extent there exists any payment obligation
under the PSA greater than or in addition to the payment
obligations of Green under this Agreement, such greater or
additional payment obligations shall be and remain the sole
and exclusive obligations of AZIW and shall not be paid or
reimbursed by Green, it being expressly understood that
Green's sole financial obligations with regard to the
transaction in the event of the Nominee Election shall not
exceed Green's financial obligations expressly set forth in
the other provisions of this Agreement;
(B) Green shall not be deemed to have assumed and shall
not be liable for any representation, warranty, covenant,
liability, indemnity or other obligation (including, without
limitation, any post-closing liability obligation) of AZIW
under the PSA, all of which representations, warranties,
covenants, liabilities and obligations shall be and remain
the sole and exclusive representations, warranties,
covenants, liabilities and obligations of AZIW for its own
account and not by or on behalf of Green;
(C) All representations, warranties, covenants,
liabilities and obligations of AZIW under this Agreement
shall be deemed material inducements and consideration to
Green to enter into the Nominee Agreement and all such
representations, warranties, covenants, liabilities,
indemnities and obligations of AZIW under this Agreement
shall remain the sole and exclusive representations,
warranties, covenants, liabilities, indemnities and
obligations by and of AZIW to and for the benefit of (and
not by or on behalf of) Green. Accordingly, the Nominee
Election shall not reduce or impair the representations,
warranties, covenants, liabilities or obligations to Green
under this Agreement. Subject to Section 6(b), Section 6(d),
Article 9 and Section 21(c) of this Agreement, AZIW shall
retain the right, in AZIW's sole discretion, to pursue
remedies against Owner in the event of Owner's default under
the PSA.
(D) All items required to be delivered by AZIW under
Article 17 above shall be executed at Closing and delivered
to Green by AZIW, in its capacity as Green's nominee under
the Nominee Agreement; and
(E) AZIW shall not accept title to the Property as
Green's nominee, nor shall Green be obligated to accept
title to the Property from AZIW, unless all conditions to
Closing otherwise under this Agreement, including, without
limitation, those conditions relating to the Leases and the
Nomura Loan, shall have been satisfied in accordance with
this Agreement.
(c) On or prior to the Closing Date, AZIW may notify Green that
AZIW elects to admit Green as a forty-nine percent (49%) non-managing member in
AZIW (the "Partnership Election"). If AZIW makes the Partnership Election, then
augmenting Article 17 of this Agreement, AZIW and Green hereby covenant and
agree that the obligation of Green to consummate the transactions contemplated
hereby at the Closing is further subject to the following conditions being
satisfied, and Green and AZIW hereby covenant and agree to take the actions
specified as to each of them respectively in this Section to satisfy such
conditions, on or before the Closing Date (unless otherwise provided in this
Section 18(c)). If any of the following conditions is not satisfied (unless the
failure of such condition is due to Green's default under this Agreement), then
the Partnership Election shall be void and the provisions of this Section 18(d)
shall be inapplicable:
(i) Prior to the closing under the PSA:
(A) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Macklowe") shall have executed and
delivered to Green an Assignment of Membership Interests in
the form of Exhibit L annexed hereto;
(B) Green, Macklowe and AZIW Inc. ("Macklowe Member")
shall have executed and delivered an Amended and Restated
Operating Agreement in the form of Exhibit M annexed hereto;
(C) Green shall have made a capital contribution to
AZIW equal to forty-nine percent (49%) of the adjusted and
apportioned Purchase Price due at Closing under this
Agreement, the portion of the Prepayment Costs payable by
Green hereunder and of the Commission to the extent payable
at Closing (the "Green Closing Obligation"), it being
expressly understood that Green's sole financial obligations
with regard to the transaction contemplated hereby are those
of Green expressly set forth in the provisions of this
Agreement;
(D) ▇▇ ▇▇▇▇▇ Operating Partnership, L.P. shall make a
loan to Macklowe and Macklowe Member, jointly and severally,
equal to fifty-one percent (51%) of the Green Closing
Obligation, such loan to be evidenced and secured by a
demand note and pledge and security agreement in the form of
Exhibit O-1 and Exhibit O-2 annexed hereto. Macklowe and
Macklowe Member shall make a capital contribution to AZIW
equal to: (i) one hundred percent (100%) of the proceeds of
such loan plus (ii) one hundred percent (100%) of the
difference between (x) the Green Closing Obligation and (y)
the purchase price under the PSA and all other amounts due
Owner under the PSA plus (iii) all other amounts payable by
AZIW hereunder, including, without limitation, the RET and
RPT;
(ii) AZIW shall have closed in accordance with the PSA;
provided that AZIW shall accept title to the Property under the
PSA only if all conditions to Closing hereunder, including,
without limitation, those conditions relating to the Leases and
the Nomura Loan, shall have been satisfied in accordance with
this Agreement;
(iii) By signing this Agreement on its own behalf, Macklowe
and Macklowe Member agree that in the event of the Partnership
Election: all representations, warranties, covenants,
liabilities, indemnities and obligations of AZIW under this
Agreement shall be deemed to have been made by Macklowe and
Macklowe Member as material inducements and consideration to
Green to acquire interests in AZIW and all such representations,
warranties, covenants, liabilities, indemnities and obligations
of AZIW under this Agreement shall become representations,
warranties, covenants, liabilities, indemnities and obligations
by and of Macklowe and Macklowe Member to and for the benefit of
Green. Subject to Section 6(b), Section 6(d), Article 9 and
Section 21(c) of this Agreement, until the Closing, AZIW shall
retain the right, in AZIW's sole discretion, to pursue remedies
against Owner in the event of Owner's default under the PSA,
provided that, notwithstanding the immediately preceding sentence
but subject to the last sentence of Section 21(e), after the
Closing Macklowe and Macklowe Member shall have no rights to
pursue any right or remedy against Owner under the PSA or in
connection with the transaction contemplated thereby.
Accordingly, the Partnership Election shall not reduce or impair
the representations, warranties, covenants, liabilities,
indemnities or obligations made for the benefit of Green under
this Agreement;
(iv) Immediately after the Closing under the PSA, Macklowe
and Macklowe Member and shall have executed and delivered to ▇▇
▇▇▇▇▇ Operating Partnership, L.P., Assignments of Membership
Interests, in the form of Exhibit P annexed hereto, pursuant to
which Macklowe and Macklowe Member shall convey to ▇▇ ▇▇▇▇▇
Operating Partnership, L.P. in satisfaction of the loan to
Macklowe Member, the balance of the membership interests and
management rights in AZIW not previously conveyed to Green.
(d) On or prior to the Closing Date, AZIW may notify Green that
AZIW elects to assign to Green its right, title and interest as purchaser under
the PSA (the "Assignment Election"). If AZIW makes the Assignment Election then
augmenting Article 17 of this Agreement, AZIW and Green hereby covenant and
agree that the obligation of Green to consummate the transactions contemplated
hereby at the Closing is further subject to the following conditions being
satisfied, and Green and AZIW hereby covenant and agree to take the actions
specified as to each of them respectively in this Section to satisfy such
conditions, on or before the Closing Date (unless otherwise provided in this
Section 18(d)). If any of the following conditions is not so satisfied (unless
the failure of such condition is due to Green's default under this Agreement),
then the Assignment Election shall be void and the provisions of this Section
18(c) shall be inapplicable:
(i) Prior to the closing under the PSA, Green and AZIW shall
have executed the Assignment Agreement annexed hereto as Exhibit
R (the "PSA Assignment").
(ii) Prior to the closing under the PSA, AZIW shall have
delivered to Green the unconditional written consent of Owner to
the assignment to Green of AZIW's right, title and interest as
purchaser under the PSA.
(iii) Upon the Closing, Green shall accept the closing
documents to be delivered by Owner in accordance with the PSA in
lieu of the deliveries to be made by AZIW under Article 17
hereof, except that AZIW shall deliver or cause to be delivered,
the Nomura Assignment, the Representation Memorandum, any items
under Section 17(c)(iv) and those items listed on Sections
17(a)(vi) and 17(c)(i) as applicable to the PSA assignment.
(iv) To the extent there exists any payment obligation under
the PSA greater than or in addition to the payment obligations of
Green under this Agreement, including, without limitation, those
obligations of AZIW, such greater or additional payment
obligations shall be and remain the sole and exclusive
obligations of AZIW and shall not be paid or reimbursed by Green,
it being expressly understood that Green's sole financial
obligations with regard to the transaction in the event of the
Assignment Election shall not exceed Green's financial
obligations expressly set forth in the other provisions of this
Agreement.
(v) All representations, warranties, covenants, liabilities
and obligations of AZIW under this Agreement shall be deemed
material inducements and consideration to Green to accept the PSA
Assignment and all such representations, warranties, covenants,
liabilities, indemnities and obligations of AZIW under this
Agreement shall remain the sole and exclusive representations,
warranties, covenants, liabilities, indemnities and obligations
by and of AZIW to and for the benefit of (and not by or on behalf
of) Green, subject to the last sentence of Section 21(e).
Accordingly, the Assignment Election shall not reduce or impair
the representations, warranties, covenants, liabilities or
obligations to Green under this Agreement and same shall survive
the PSA Assignment if and to the extent same are stated in this
Agreement to survive the Closing.
(vi) Green may elect not to accept the PSA Assignment unless
all conditions to Closing otherwise under this Agreement,
including, without limitation, those conditions relating to the
Leases and the Nomura Loan, shall have been satisfied in
accordance with this Agreement.
(e) AZIW shall have the right from time to time until the Closing
to make either the Nominee Election, the Partnership Election or the Assignment
Election and subsequently rescind same and (i) close without giving effect to
this Article 18 or (ii) make a subsequent election under this Article 18. The
Nominee Election, the Partnership Election or the Assignment Election and the
right to close without any such election are exclusive of each other and may not
be exercised concurrently. If AZIW fails to notify Green prior to the Closing of
which election AZIW is making under this Article 18 (or whether AZIW chooses to
close without making any elections under this Article 18) then AZIW shall be
deemed to have chosen the Nominee Election.
19. CLOSING DATE.
The closing (the "Closing") of the transactions contemplated
hereunder shall occur, and the documents referred to in Article 17 hereof shall
be delivered upon tender of the Purchase Price provided for in this Agreement,
at 10:00 a.m. on August 11, 1998 (the "Scheduled Closing Date"; the actual date
of the Closing is hereinafter referred to as the "Closing Date"), at the offices
of Green's attorneys, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ or such other place as to which the parties shall mutually agree. Except
as provided below, TIME IS OF THE ESSENCE as to the parties' obligation to close
the transaction contemplated hereunder on August 11, 1998; or, if AZIW shall
have extended the Scheduled Closing Date pursuant to Article 6, on such
Scheduled Closing Date so designated by AZIW; or if AZIW and Owner by mutual
agreement shall have extended the Closing Date under the PSA, then on such
extended date, but in no event may such extended date be later then August 21,
1998, TIME BEING OF THE ESSENCE.
20. NOTICES.
All notices, demands, requests or other communications
(collectively, "Notices") required to be given or which may be given hereunder
shall be in writing and shall be sent by (i) national overnight delivery
service, (ii) facsimile transmission (provided that the original shall be
simultaneously delivered by national overnight delivery service or personal
delivery), or (iii) personal delivery, addressed as follows:
(a) If to AZIW:
AZIW LLC
c/o The Macklowe Organization
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Green:
Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Real Estate Corp.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Investment Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any Notice so sent by national overnight delivery service or
personal delivery shall be deemed given on the date of receipt or refusal as
indicated on the return receipt, or the receipt of the national overnight
delivery service or personal delivery service. Any Notice sent by facsimile
transmission shall be deemed given when received as confirmed by the telecopier
electronic confirmation receipt or, if after 5:00 p.m., on the next Business
Day. A Notice may be given either by a party or by such party's attorney. AZIW
or Green may designate, by notice given to the other in accordance with the
terms of this Article 20 additional or substituted parties to whom Notices
should be sent hereunder.
21. DEFAULT BY GREEN OR AZIW.
(a) (i) If Green defaults in the payment of the Purchase
Price or if Green shall default in the performance of any of its
other obligations to be performed on the Closing Date or any of
its other material obligations to be performed under this
Agreement prior to the Closing Date and such default shall
continue to be uncured by the Closing Date, AZIW's sole remedy by
reason thereof shall be to terminate this Agreement and, upon
such termination, AZIW shall be entitled to retain the Deposit as
liquidated damages for Green's default hereunder, it being agreed
that the damages by reason of Green's default are difficult, if
not impossible, to ascertain, and, thereafter Green and AZIW
shall have no further rights or obligations under this Agreement
except for those that are expressly provided in this Agreement to
survive the termination hereof.
(ii) If Owner terminates the PSA pursuant to a right given
to it thereunder and Green takes any action in bad faith which
wrongfully interferes with Owner's ability to sell, exchange,
transfer, lease, dispose of or finance the Property or wrongfully
take any other actions with respect thereto (including, without
limitation, the filing of any notice of pendency or exercise of
other provisional remedy against the Property), as determined by
a non-appealable decision of a court of competent jurisdiction,
then ▇▇ ▇▇▇▇▇ Operating Partnership, L.P. shall be liable for and
shall indemnify AZIW and its members against any and all loss,
cost, damage, liability or expense (including, without
limitation, reasonable attorneys' fees, court costs and
disbursements and consequential damages) for which AZIW is held
liable to Owner by reason of or relating to such action taken in
bad faith which wrongfully interferes with Owner's ability to
sell, exchange, transfer, lease, dispose of or finance the
Property, it being expressly understood that in no event shall
Green be liable under this Section for: (a) any action taken by
AZIW in violation of this Agreement or the PSA; or (b) any action
taken in good faith to enforce this Agreement.
(b) If (x) AZIW defaults in any of its obligations to be
performed on the Closing Date or (y) AZIW defaults in the performance of any of
its obligations to be performed prior to the Closing Date and such default shall
continue to be uncured by the Closing Date, Green as its sole remedy by reason
thereof (in lieu of prosecuting an action for damages or proceeding with any
other legal course of conduct, the right to bring such other actions or
proceedings being expressly and voluntarily waived by Green, following and upon
advice of its counsel) shall have the right, either (i) to enforce specific
performance of AZIW's obligations hereunder, provided that any action for
specific performance shall be commenced within sixty (60) days after the
Scheduled Closing Date, and, if Green prevails thereunder, in addition to any
other decree issued by the court, AZIW shall reimburse Green for all reasonable
legal fees, court costs and all other reasonable costs of such action or (ii) to
receive a return of the Deposit; it being understood that if Green fails to
commence an action for specific performance within sixty (60) days after the
Scheduled Closing Date, Green's sole remedy shall be to receive a return of the
Deposit. Upon such return and delivery, this Agreement shall terminate and
neither party hereto shall have any further obligations hereunder except for
those that are expressly provided in this Agreement to survive the termination
hereof. Notwithstanding, the foregoing, Green shall have no right to seek
specific performance if AZIW shall be prohibited from performing its obligations
hereunder by reason of any law, regulation, or other legal requirement
applicable to AZIW. Nothing in this Section 21(b) shall be deemed to limit or
impair Green's other rights and remedies under Article 11, this Article 21, the
Guaranty (hereinafter defined) or with respect to any obligation of AZIW that
survives Closing. If Owner fails to convey title to the Property to AZIW on the
Closing Date in accordance with the PSA, and such failure by Owner is due to a
default or breach by AZIW as purchaser under the PSA, then AZIW shall be in
default of its obligations under this Agreement and Green shall have such rights
and remedies against AZIW as otherwise are provided for in this Section for a
default by AZIW.
(c) (i) If Owner defaults in any of its obligations under the PSA
or Owner fails to convey title to the Property to AZIW on the
Closing Date in accordance with the PSA, then provided such
default or failure by Owner is not due to a default or breach by
AZIW as purchaser under the PSA (it being expressly understood
that the fact of AZIW having entered into this Agreement with
Green shall not for the purposes of this Article 21 be considered
a default under the PSA) then by written notice to Green no later
than the Scheduled Closing Date, AZIW may elect either to (a)
terminate this Agreement, return to Green the Deposit and pay to
Green the Break-Up Fee and upon such return and payment this
Agreement shall terminate and neither party shall have any
further obligations hereunder except for those obligations that
are expressly provided in this Agreement to survive the
termination hereof; or (b) AZIW may adjourn the Closing Date for
a period of ninety (90) days after the Scheduled Closing Date
(the "Remedial Period") to obtain Owner's performance under the
PSA. If AZIW fails to timely notify Green of its election under
the immediately preceding sentence, then AZIW shall be deemed to
have made the election in clause (b) of such sentence.
(ii) At any time during the Remedial Period, AZIW may elect
to cease its efforts to obtain Owner's performance under the PSA
in which event the Deposit shall be returned to Green, AZIW shall
pay the Break-Up Fee to Green and upon such return and payment
this Agreement shall terminate and neither party shall have any
further obligations hereunder except for those obligations that
are expressly provided in this Agreement to survive the
termination hereof. It is expressly understood, however, that for
so long as AZIW is pursuing efforts to obtain Owner's performance
under the PSA during the Remedial Period, AZIW shall have no
right to terminate this Agreement pursuant to the immediately
preceding sentence. During the Remedial Period, Green, at no cost
or liability to Green, shall reasonably cooperate with AZIW in
AZIW's efforts to obtain Owner's performance under the PSA.
(iii) If Owner performs its closing obligations under the
PSA during the Remedial Period, then Green and AZIW immediately
upon such performance shall close the transaction hereunder in
accordance with this Agreement. If AZIW fails to obtain Owner's
performance of its obligations under the PSA by the end of the
Remedial Period, TIME BEING OF THE ESSENCE, then, by written
notice to AZIW given within ten (10) Business Days after the end
of the Remedial Period, Green may elect: (y) to receive a return
of the Deposit plus the Break-Up Fee (hereinafter defined), and
upon such return and payment this Agreement shall terminate and
neither party shall any further obligations hereunder except for
those obligations that are expressly provided in this Agreement
to survive the termination hereof; or (z) not to terminate this
Agreement in which event this Agreement shall remain in full
force and effect until the earliest of (I) the date AZIW closes
the transaction under this Agreement in accordance with its
terms; (II) the date AZIW terminates this Agreement by written
notice to Green; and (III) the first anniversary of the Scheduled
Closing Date. If this Agreement terminates pursuant to clause II
or III of the immediately preceding clause (z), the Deposit shall
be returned to Green and upon such return this Agreement shall
terminate and neither party shall any further obligations
hereunder except for those that are expressly provided in this
Agreement to survive the termination hereof. Regardless if Green
makes the election under such clause (z), AZIW shall have no
obligation to further pursue Owner's performance under the PSA
after the expiration of the Remedial Period.
(d) Intentionally Deleted.
(e) Supplementing all other liabilities and indemnities of AZIW
to Green hereunder, and notwithstanding any other provision of this Agreement
(including, without limitation, any provision purporting to create a sole and
exclusive remedy for the benefit of Green and Sections 3(e) and 11(a) hereof)
AZIW, Manhattan Pacific and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ agree, jointly and severally, to
indemnify and hold Green and its direct and indirect shareholders, officers,
directors, partners, principals, members, employees, agents, contractors and any
successors or assigns of the foregoing (collectively with Green, the "Green
Related Parties") harmless from and against any and all losses, costs, damages,
liens, claims, liabilities or expenses (including, but not limited to,
reasonable attorneys' fees, court costs and disbursements) incurred by any of
the Green Related Parties arising from or by reason of:
(i) any representation, warranty, covenant,
liability, indemnity or obligation of AZIW as purchaser under
the PSA, any liability or obligation incurred by AZIW under or
in connection with the PSA, including, without limitation, any
post-closing or surviving obligation under the PSA, any actual
or alleged default, breach or misrepresentation under the PSA
and any claim or cause of action, whether or not based on the
PSA, asserted by Owner and, in the event of the Assignment
Election, notwithstanding any assumption by Green (as between
Green and Owner) of the obligations of AZIW under the PSA;
(ii) Intentionally Deleted;
(iii) Green's cooperation with AZIW pursuant to Section
21(c)(ii) above; and
(iv) the RET and the RPT, including without limitation,
all penalties and interest due to the non-payment or late
payment thereof.
This Section 21(e) shall survive the Closing or termination of
this Agreement. The liability under this Section 21(e) of Manhattan Pacific and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall apply regardless of whether the Closing is pursuant to the
Nominee Election, the Partnership Election, the Assignment Election or none of
them, and shall not be limited or impaired in the event of a Closing with the
application of the Nominee Election, the Partnership Election, the Assignment
Election or none of them. If, in the event of a Closing pursuant to the Nominee
Election, the Partnership Election or the Assignment Election, (i) Green elects
not to pursue AZIW for any of the obligations under this Section 21(e) or (ii)
as a matter of law AZIW may not be liable for any of the obligations under this
Section 21(e), the joint and several obligations of Manhattan Pacific and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ shall remain in full force and effect to the full extent thereof.
Further, in the event of a Closing with the Partnership Election, the foregoing
indemnity shall be deemed to run in favor of AZIW's members, and in such event
Green and ▇▇ ▇▇▇▇▇ Operating Partnership, L.P., as AZIW's members, may enforce
the foregoing indemnity against Macklowe and Manhattan Pacific. In the event of
a Closing with the Partnership Election or the Assignment Election, then to the
extent Macklowe, Macklowe Member or Manhattan Pacific has previously made a
payment to AZIW under this Section 21(e) on account of any liability of Owner
surviving the Closing under the PSA for which Macklowe, Macklowe Member or
Manhattan Pacific may have a corresponding liability under this Agreement or the
Guaranty, then AZIW, at the request and direction of, with counsel selected by
and at the cost and expense of Macklowe, Macklowe Member, and/or Manhattan
Pacific shall commence and prosecute an action against Owner for such liability
of Owner under the PSA provided that: (x) any and all losses, costs, damages,
liens, claims, liabilities and expenses (including, but not limited to,
reasonable attorneys' fees, court costs and disbursements) incurred by AZIW in
connection with such action (whether as the result of any counterclaim, or
otherwise) shall be covered by the indemnity in Section 21(e) and the Guaranty;
and (y) any counsel selected in connection with such proceeding shall be subject
to Green's reasonable approval and shall not, in any event, have any legal or
business conflict with Green or its affiliates.
(f) To further secure AZIW's obligations to Green under this
Agreement, Macklowe and Manhattan Pacific simultaneously with the execution and
delivery of this Agreement have executed and delivered to Green the guaranty in
the form of Exhibit Q annexed hereto (the "Guaranty").
(g) To further secure AZIW's obligation to pay the Break-Up Fee,
AZIW has previously deposited with ▇▇▇▇▇▇▇▇▇ Traurig, Green's attorneys,
Twenty-Five Thousand Dollars ($25,000.00) (the "Fee & Expense Deposit"). The Fee
and Expense Deposit is not held in escrow and Green shall have the right to
direct the use of the Fee and Expense Deposit for any purpose in its sole and
absolute discretion. If the transaction contemplated hereby closes, the amount
of the Fee and Expense Deposit shall be a credit to AZIW. If the transaction
contemplated hereby does not close, the amount of the Fee & Expense Deposit
shall be a credit against the Break Up Fee, if and when the Break Up Fee is
payable in accordance with this Agreement. If the transaction contemplated
hereby does not close and the Break Up Fee is not payable (as determined at the
expiration of the Remedial Period) or if AZIW is entitled to a return of the
Deposit, then Green shall pay the amount of the Fee and Expense Deposit to AZIW
at the same time the Deposit is paid to AZIW.
22. FIRPTA COMPLIANCE.
AZIW shall comply with the provisions of the Foreign Investment
in Real Property Tax Act, Section 1445 of the Code, or any successor or similar
law. AZIW acknowledges that Section 1445 of the Code provides that a transferee
of a United States real property interest must withhold tax if the transferee is
a foreign person. To inform Green that withholding of tax is not required upon
the disposition of a United States real property interest by AZIW, AZIW hereby
represents and warrants that AZIW is not a foreign person as that term is
defined in the Code and Income Tax Regulations. On the Closing Date, AZIW shall
deliver to Green a certification as to AZIW's non-foreign status in the form
attached hereto as Exhibit 4 and shall comply with any temporary or final
regulations promulgated with respect thereto and any relevant revenue procedures
or other officially published announcements of the Internal Revenue Service of
the U.S. Department of the Treasury in connection therewith.
23. ENTIRE AGREEMENT.
This Agreement contains all of the terms agreed upon between AZIW
and Green with respect to the subject matter hereof, and all prior agreements,
understandings, representations and statements, oral or written, between AZIW
and Green are merged into this Agreement. The provisions of this Section shall
survive the Closing or the termination hereof.
24. AMENDMENTS.
This Agreement may not be changed, modified or terminated, except
by an instrument executed by AZIW and Green. The provisions of this Article 24
shall survive the Closing or the termination hereof.
25. WAIVER.
No waiver by either party of any failure or refusal by the other
party to comply with its obligations shall be deemed a waiver of any other or
subsequent failure or refusal to so comply. The provisions of this Article 25
shall survive the Closing or the termination hereof.
26. PARTIAL INVALIDITY.
If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and shall be enforced to the fullest
extent permitted by law. The provisions of this Article 26 shall survive the
Closing or the termination hereof.
27. SECTION HEADINGS.
The headings of the various sections of this Agreement have been
inserted only for the purposes of convenience and are not part of this Agreement
and shall not be deemed in any manner to modify, explain, expand or restrict any
of the provisions of this Agreement. The provisions of this Article 26 shall
survive the Closing or the termination hereof.
28. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New
York without giving effect to conflict of laws principles thereof. The
provisions of this Article 28 shall survive the Closing or the termination
hereof.
29. PARTIES; ASSIGNMENT AND RECORDING.
(a) This Agreement and the various rights and obligations
arising hereunder shall inure to the benefit of and be binding upon AZIW and
Green and their respective successors and permitted assigns, provided, however,
that none of the representations or warranties made by AZIW hereunder shall
inure to the benefit of any person or entity that may succeed to Green's
interest in the Property after the Closing Date.
(b) Green shall not assign or otherwise transfer this Agreement
or any of its rights or obligations hereunder or any of the direct or indirect
ownership interests in Green, without first obtaining AZIW's consent thereto,
provided, however, that Green shall have the right upon notice to AZIW to assign
this Agreement one or more times to a "Controlled Affiliate". "Controlled
Affiliate" shall mean any entity "controlled by" or the majority of the
beneficial interests in which are owned, directly or indirectly, by, ▇▇ ▇▇▇▇▇
Realty Corp. or ▇▇ ▇▇▇▇▇ Operating Partnership, L.P. in each case as of the date
of the assignment and the Closing Date. "Controlled by" means the power and
authority to direct the business and affairs of the assignee by reason of the
ownership of a majority of the beneficial interests in such assignee, by
contract or otherwise. Any such assignment shall be conditioned upon Green
delivering to AZIW an executed original of the assignment and assumption
agreement wherein the assignee assumes all of the obligations of Green and proof
reasonably satisfactory to AZIW that the assignee constitutes a "Controlled
Affiliate." An assignment or transfer of this Agreement shall not relieve Green
of any of its obligations hereunder which accrued prior to the date of such
assignment.
(c) Neither this Agreement nor any memorandum hereof may be
recorded without first obtaining AZIW's consent thereto.
(d) Notwithstanding, anything contained in Section 29(c) Green
and AZIW shall execute at Closing a memorandum substantially in the form
attached hereto as Exhibit 7 regarding AZIW's rights pursuant to Article 15
hereof, and Green and AZIW shall submit the same to the Title Company for
recording at Closing.
(e) The provisions of Section 29(a) and 29(c) shall survive the
Closing or the termination hereof. The provisions of Section 29(b) shall survive
the termination hereof.
30. FURTHER ASSURANCES.
AZIW and Green will do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, assignments, notices, transfers and
assurances as are reasonably required by the other party, for the better
assuring, conveying, assigning, transferring and confirming unto Green the
Property and for carrying out the intentions or facilitating the consummation of
this Agreement. The provisions of this Article 30 shall survive the Closing.
31. THIRD-PARTY BENEFICIARY.
This Agreement is an agreement solely for the benefit of the
parties hereto (and their permitted successors and/or assigns). No other person,
party or entity shall have any rights hereunder nor shall any other person,
party or entity be entitled to rely upon the terms, covenants and provisions
contained herein. The provisions of this Article 31 shall survive the Closing or
the termination hereof.
32. JURISDICTION AND SERVICE OF PROCESS.
The parties hereto agree to submit to personal jurisdiction in
the State of New York in any action or proceeding arising out of this Agreement
and, in furtherance of such agreement, the parties hereby agree and consent that
without limiting other methods of obtaining jurisdiction, personal jurisdiction
over the parties in any such action or proceeding may be obtained within or
without the jurisdiction of any court located in New York. The provisions of
this Article 32 shall survive the Closing or the termination hereof.
33. WAIVER OF TRIAL BY JURY.
GREEN AND AZIW HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN
CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT. THE PROVISIONS
OF THIS ARTICLE 33 SHALL SURVIVE THE CLOSING OR THE TERMINATION HEREOF.
34. MISCELLANEOUS.
(a) Whenever in this Agreement it is provided that Green's
successors and/or transferees and/or assignees shall have any rights or
obligations, such phrase shall be deemed to include all designees of Green as
well as all of the transferees, successors and assigns of Green and such
designees.
(b) This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and together constitute one and the same
instrument.
(c) Any consent or approval to be given hereunder (whether by
AZIW or Green) shall not be effective unless the same shall be given in advance
of the taking of the action for which consent or approval is requested and shall
be in writing. Except as otherwise expressly provided herein, any consent or
approval requested of AZIW or Green may be withheld by AZIW or Green in its sole
and absolute discretion.
(d) Green and AZIW each agree to preserve the confidentiality of
all "Confidential Information" received from the other. "Confidential
Information" means (i) the existence and contents of this Agreement, (ii)
Green's involvement in the transaction contemplated hereby, (iii) any
information of a proprietary or confidential nature relating to the business or
the assets of Green, AZIW, or any of their respective affiliates or related
companies that is not public information known by either of the parties prior to
the date of this Agreement. Neither party will: disclose any Confidential
Information of the other party (other than to such party's attorneys,
accountants, consultants, agents and potential financing sources in connection
with the transaction contemplated hereby who shall receive the Confidential
Information subject to the terms and conditions of this Agreement); or use the
Confidential Information for any purposes other than in connection with the
transaction contemplated hereby. Without limiting the generality of the
immediately preceding sentence: (a) Confidential Information may be disclosed to
Nomura in connection with the Nomura Loan; and (b) Green will not communicate
with Owner, or any agent or representative of Owner with regard to the Property
or the transaction contemplated hereby, and if Owner or any representative or
agent of Owner makes any inquiry of Green with regard thereto, Green shall first
consult with Macklowe prior to responding to such inquiry. The Confidential
Information also may be disclosed as required by applicable law (including legal
requirements applicable to Green as a publicly held company), by court order, or
by obligations imposed on the disclosing party pursuant to any listing agreement
with any national security exchange. Any public announcement indicating the
association of
[The remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have signed this Agreement
as of the date first above written.
AGENT:
AZIW LLC
By: AZIW Inc., its managing member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
PRINCIPAL:
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership, L.P.
By: ▇▇ ▇▇▇▇▇ Realty Corp.
By: _______________________________
Name:
Title:
Green with Property, and the timing of such announcements, must be discussed and
agreed to in advance by Green and AZIW.
(e) The provisions of this Article 35 shall survive the Closing
or the termination hereof.
IN WITNESS WHEREOF, AZIW and Green have caused this Agreement to
be executed the day and year first above written.
SELLER:
AZIW LLC
By: AZIW Inc., its managing member
By:________________________________
▇▇▇▇▇▇ ▇▇▇▇, President
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership,
L.P., its manager
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By:
Name:
Title:
BY HIS EXECUTION BELOW, THE
UNDERSIGNED AGREES TO BE BOUND
PERSONALLY BY THE PROVISIONS OF
SECTIONS 18 (c) AND 21(e) HEREOF:
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BY ITS EXECUTION BELOW, THE
UNDERSIGNED AGREES TO BE BOUND BY
THE PROVISIONS OF SECTION 21(e)
HEREOF:
Manhattan Pacific Management Co., Inc.
By:___________________________________
▇▇▇▇▇▇ ▇▇▇▇, President
BY ITS EXECUTION BELOW, THE
UNDERSIGNED AGREES TO BE BOUND BY
THE PROVISIONS OF ARTICLE 14 AND
SECTION 21(a)(ii) HEREOF:
▇▇ ▇▇▇▇▇ Operating Partnership, L.P.
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By:_______________________________
Name:
Title:
BY ITS EXECUTION BELOW THE
UNDERSIGNED AGREES TO BE BOUND BY
THE PROVISIONS OF EXHIBIT B HEREOF:
▇▇▇▇▇▇▇▇▇ TRAURIG
By:__________________________________
[The remainder of this page intentionally left blank]
Exhibit A
Legal Description
-----------------
Exhibit A
---------
Legal Description
-----------------
ALL that certain plot, piece or parcel of land, situate, lying
and being in the Borough of Manhattan, City, County and State of New York,
bounded and described as follows:
BEGINNING at the corner formed by the intersection of the
easterly side of Broadway and the northerly side of ▇▇▇▇ ▇▇▇▇▇▇;
RUNNING THENCE northerly along the easterly side of Broadway 102
feet 6 inches;
THENCE easterly parallel with the northerly side of 39th Stree
and along the center line of the block 189 feet 1 3/4 inches;
THENCE southerly at right angles to ▇▇▇▇ ▇▇▇▇▇▇ 98 feet 9 inches
to the northerly side of ▇▇▇▇ ▇▇▇▇▇▇;
THENCE westerly along the northerly side of ▇▇▇▇ ▇▇▇▇▇▇ 161 feet
8 inches to the point or place of beginning.
TOGETHER with all the right, title and interest of Seller, if
any, of, in and to the land lying in the street in front of and adjoining said
premises.
Exhibit B
---------
Escrow Agreement
----------------
Exhibit B
ESCROW PROVISIONS
-----------------
The Deposit and the portion of the Commission deposited under
Section 21(f) of this Agreement, shall be held in an interest bearing money
market account by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Escrow Agent") on the terms and conditions
of this Exhibit B. The Deposit and, if paid, the portion of the Commission
deposited under Section 21(f) of this Agreement, and all interest thereon
are sometimes referred to herein collectively as "Escrowed Funds".
I. Disposition.
a. If the Closing takes place, Escrow Agent shall deliver
the Deposit and the interest thereon (the "Deposit Funds") to AZIW. If the
Agreement is terminated, Escrow Agent shall deliver the Deposit Funds to the
party entitled thereto under the terms of the Agreement. The portion of the
Commission deposited under Section 21(f) of this Agreement and the interest
thereon (the "Commission Funds") shall be held and disbursed in accordance with
Section 21(f) of the Agreement.
b. Except for the delivery of the Deposit Funds at the
Closing, Escrow Agent will deliver Escrowed Funds only after five (5) Business
Days' written notice to AZIW and Green, and with respect to the Commission
Funds, to Manhattan Pacific, provided Escrow Agent shall not have received any
objection to the release of Escrowed Funds from any such party prior to Escrow
Agent's release thereof. If there is any dispute as to whether Escrow Agent is
obligated to deliver Escrowed Funds or any portion of thereof, or as to whom
Escrowed Funds or any portion thereof is to be delivered, Escrow Agent may hold
same (i) until it is authorized to deliver Escrowed Funds in a writing signed by
AZIW and Green, and with respect to Commission Funds, Manhattan Pacific, or (ii)
in accordance with the terms of a final order of a court of competent
jurisdiction from which no appeal can be made. Notwithstanding anything to the
contrary in this Exhibit B, Escrow Agent shall have the right at any time to
deposit Escrowed Funds with the clerk of any court having jurisdiction in New
York County. Escrow Agent shall give written notice of such deposit to AZIW and
Green and with respect to Commission Funds, Manhattan Pacific. Upon such
deposit, Escrow Agent shall be relieved and discharged of all further
obligations and liability hereunder.
II. Stakeholder Only; Successor. The parties acknowledge that
Escrow Agent is acting solely as a stakeholder at their request and for their
convenience, and that Escrow Agent shall not be deemed to be the agent of either
of the parties. At any time Escrow Agent shall be permitted to appoint a
successor Escrow Agent and upon Escrow Agent's delivery of Escrowed Funds to
such successor and such successor's agreement in writing to be bound by the
terms of this Exhibit B Escrow Agent shall be relieved of its obligations under
this Exhibit B.
III. Indemnity. AZIW, Green and Manhattan Pacific shall jointly
and severally indemnify and hold Escrow Agent harmless from and against all
costs, claims and expenses, including attorney's fees and disbursements incurred
with respect to actions or omissions taken or suffered by Escrow Agent except
for Escrow Agent's willful misconduct or gross negligence.
IV. Liability and Escrow Agent's Duties. Escrow Agent shall not be
liable with respect to its duties hereunder except for Escrow Agent's willful
misconduct or gross negligence. Escrow Agent may act upon any writing believed
by it in good faith to be genuine and to be signed and presented by the proper
person or entity, and shall not be liable in connection with the performance of
any duties imposed upon Escrow Agent by the provisions of this Exhibit B, except
for Escrow Agent's own willful default or gross negligence. Escrow Agent shall
have no duties or responsibilities except those specifically set forth in this
Exhibit B. Escrow Agent shall not be bound by any modification of this Exhibit B
unless Escrow Agent shall have given prior written consent thereto and shall not
be bound by any modification of any other provision of this Agreement unless it
has been delivered and executed counterpart of such modification executed and
delivered by both Green and AZIW and, if applicable to the Commission Funds,
Manhattan Pacific. If Escrow Agent shall be uncertain as to Escrow Agent's
duties or rights hereunder, or shall receive instructions from Green, AZIW or
Manhattan Pacific which, in Escrow Agent's opinion, are in conflict with any of
the provisions hereof, Escrow Agent shall be entitled to hold or deposit
Escrowed Funds pursuant to this Exhibit B and may decline to take any other
action.
V. Representation of Green. AZIW and Manhattan Pacific understand
and agree that, notwithstanding its duties as Escrow Agent hereunder, Escrow
Agent is the attorney for Green and, accordingly, neither its services as Escrow
Agent under this Agreement nor any provision of this Agreement, either express
or implied, shall restrict or inhibit Escrow Agent in any way from representing
Green in any action, dispute, controversy, arbitration, suit or negotiation
arising under the Agreement or in any manner or context, whether or not directly
or indirectly involving AZIW, Green or Manhattan Pacific.
Exhibit C
Form of Deed
------------
EXHIBIT C
---------
FORM OF DEED
-----------
BARGAIN AND SALE DEED
WITHOUT COVENANTS AGAINST GRANTOR'S ACTS
FROM AZIW LLC, AS GRANTOR,
TO GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, AS GRANTEE
--------------------------------------
THIS INDENTURE, is made as of the __ day of _______________, 1998
between AZIW LLC, a New York limited liability company, having an address c/o
The Macklowe Organization, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("GRANTOR"),
and Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York limited liability company, having an
address c/o ▇▇ ▇▇▇▇▇ Realty Corp., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
("Grantee").
WITNESSETH, that Grantor, in consideration of good and valuable
consideration paid by Grantee, the receipt and sufficiency of which is hereby
acknowledged, does hereby grant and release unto Grantee, its heirs or
successors and assigns forever;
ALL the right, title, interest, claim and demand whatsoever as Grantor
has in or to that certain plot, piece or parcel of land more particularly
described on Schedule A attached hereto and made a part hereof, together with
----------
the buildings and improvements located thereon;
TOGETHER, with all right, title and interest, if any, of Grantor in
and to any streets and roads abutting the above described premises to the center
lines thereof;
TOGETHER with the appurtenances and all the estate and rights of the
Grantor in and to said premises; and
SUBJECT TO, any and all liens, encumbrances and other matters of
record, including, without limitation, inter alia that certain Amended and
----- ----
Restated Mortgage, Assignment of Leases and Rents and Security Agreement dated
as of June 25, 1997 by and between Grantor, as mortgagor, and Nomura Asset
Capital Corporation, as mortgagee, recorded in Reel 25 10, Page 2090.
TO HAVE AND TO HOLD the premises herein granted unto Grantee, the
heirs or successors and assigns of the Grantee forever.
AND Grantor, in compliance with Section 13 of the Lien Law, covenants
that it will receive the consideration for this conveyance and will hold the
right to receive such consideration as a trust fund to be applied first for the
purpose of paying the cost of the improvement and will apply the same first to
the payment of the cost of the improvement before using any part of the total of
the same for any other purpose.
IN WITNESS WHEREOF, Grantor and Grantee have duly executed this
Indenture the day and year first above written.
SELLER:
------
AZIW LLC
By: AZIW Inc., its managing member
By: _______________________________
Name:
Title:
PURCHASER:
---------
Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership, L.P.,
its manager
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By: _______________________________
Name:
Title:
ACKNOWLEDGMENTS
---------------
STATE OF NEW YORK )
)ss.
COUNTY OF NEW YORK )
On the ___ day of _____________, 199_ before me, the undersigned, a
notary in and for said state, personally appeared _____________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity and that by
his/her signature on the instrument, the individual, or the person upon behalf
of which the individual acted, executed the instrument.
__________________________
Notary Public
STATE OF NEW YORK )
)ss.
COUNTY OF NEW YORK )
On the ___ day of _____________, 199_ before me, the undersigned, a
notary in and for said state, personally appeared ______________________
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity and that by
his/her signature on the instrument, the individual, or the person upon behalf
of which the individual acted, executed the instrument.
__________________________
Notary Public
Schedule A
Legal Description
-----------------
ALL that certain plot, piece or parcel of land, situate, lying and being in
the Borough of Manhattan, City, County and State of New York, bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the easterly side of
Broadway and the northerly side of ▇▇▇▇ ▇▇▇▇▇▇;
RUNNING THENCE northerly along the easterly side of Broadway 102 feet 6
inches;
THENCE easterly parallel with the northerly side of ▇▇▇▇ ▇▇▇▇▇▇ and along
the center line of the block 189 feet 13/4 inches;
THENCE southerly at right angles to ▇▇▇▇ ▇▇▇▇▇▇ 98 feet 9 inches to the
northerly side of ▇▇▇▇ ▇▇▇▇▇▇;
THENCE westerly along the northerly side of ▇▇▇▇ ▇▇▇▇▇▇ 161 feet 8 inches
to the point or place of beginning.
TOGETHER with all the right, title and interest of Seller, if any, of, in
and to the land lying in the street in front of and adjoining said premises.
BARGAIN AND SALE DEED
WITHOUT COVENANTS AGAINST GRANTOR'S ACTS
TITLE NO.
LTM-8399-M
AZIW LLC
TO
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
BLOCK: 815
LOT: 14
COUNTY: New York
RECORD AND
RETURN BY MAIL TO:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Exhibit D
Form of ▇▇▇▇ of Sale
--------------------
EXHIBIT D
---------
FORM OF ▇▇▇▇ OF SALE
--------------------
AZIW LLC, a New York limited liability company, having an address c/o
The Macklowe Organization, 142 West 57th Street, New York,New York, ("Seller"),
in consideration of Ten Dollars ($10.00) and other good and valuable
consideration paid to Seller by Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York limited
company, having an address c/o ▇▇ ▇▇▇▇▇ Realty Corp., ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Purchaser"), the receipt and sufficiency of which are hereby
acknowledged, hereby sells, conveys, assigns, transfers, delivers and sets over
to Purchaser all fixtures, furniture, furnishings, equipment, machinery,
inventory, appliances and other articles of tangible personal property owned by
Seller and which are located at and used or usable in connection with the real
property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
TO HAVE AND TO HOLD unto Purchaser and its successors and assigns to
its and their own use and benefit forever.
This ▇▇▇▇ of Sale is made by Seller without recourse and without any
expressed or implied representation or warranty whatsoever.
IN WITNESS WHEREOF, Seller has caused this ▇▇▇▇ of Sale to be executed
as of this day of _____________, 1998.
AZIW LLC
By: AZIW Inc., its managing member
By: ___________________________
Name:
Title:
Exhibit E
Form of Tenant Letters
----------------------
EXHIBIT E
---------
FORM OF NOTICE TO TENANTS
-------------------------
AZIW LLC
c/o The Macklowe Organization
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
____________, 199_
TO:
[INSERT NAME AND ADDRESS OF
TENANT]
Re: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
--------------------------------
Dear Tenant:
This is to notify you that, today, the referenced property has been
acquired by Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC ("Purchaser"). As of the date hereof, your
lease (including any security deposit) has been assigned to Purchaser and
Purchaser has assumed the obligations as landlord under your lease (including
the obligation to return any security deposit, if owed to you) which accrue from
and after the date hereof.
You are hereby authorized and directed to make all future rent
payments to Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, c/o ▇▇ ▇▇▇▇▇ Realty Corp., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Any future inquiries regarding your lease
should be directed to ________________________ at the aforementioned address.
Very truly yours,
SELLER:
------
AZIW LLC
By: AZIW Inc., its managing member
By: ___________________________
Name:
Title:
Exhibit F
FORM OF FIRPTA
--------------
EXHIBIT F
---------
FORM OF FIRPTA AFFIDAVIT
------------------------
Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code") provides that a transferee of a U.S. real property interest must
----
withhold tax if the transferor is a foreign person. To inform the transferee
that withholding of tax is not required upon the disposition of a U.S. real
property interest by AZIW LLC, a New York limited liability company
("Transferor"), Transferor hereby certifies to Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New
----------
York limited liability company, as follows:
1. Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and Treasury Regulations promulgated thereunder);
2. The U.S. employer identification number of Transferor is __________
-______________; and
3. Transferor's office address is c/o The Macklowe Organization, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Transferor understands that this
certification may be disclosed to the Internal Revenue Service by the transferee
and that any false statement contained herein could be punished by fine,
imprisonment, or both.
Under penalties of pedury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of Transferor.
AZIW LLC
By: AZIW INC., its managing member
By: ___________________________
Name:
Title:
Dated as of ___________, 199_
Exhibit G
Form of Assignment and Assumption of Leases and Contracts
---------------------------------------------------------
Exhibit G
FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES AND CONTRACTS
---------------------------------------------------------
AZIW LLC, a New York limited liability company, having an address c/o
The Macklowe Organization, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Assignor"), in consideration of Ten Dollars ($10.00) and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby assigns to Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York limited
liability company, having an address at c/o ▇▇ ▇▇▇▇▇ Realty Corp., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Assignee"), (i) all right, title and interest
of Assignor as lessor under all the leases, license agreements and other
occupancy agreements (collectively, the "Leases") in effect for space at the
real property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Premises") and
listed on Schedule A, and (ii) all right, title and interest of Assignor under
----------
all of the service, maintenance, supply and other agreements (collectively, the
"Contracts") in effect relating to the operation of the Premises and listed on
Schedule B.
----------
Assignee hereby expressly assumes (i) all of the obligations imposed
upon the lessor under the Leases which accrue from and after the date hereof
(including, without limitation, the lessor's obligation to return any
Transferred Security Deposits (as defined in that certain Agreement between
Assignor and Assignee dated ____________, 1998 (the "Agreement") and (ii) all of
the obligations imposed upon the owner of the Premises under the Contracts which
accrue from and after the date hereof. Without limiting Assignee's obligations
hereunder or under the Agreement, Assignee expressly acknowledges, and agrees to
perform, its obligation to pay "Tenant Inducement Costs" (as defined in the
Agreement) and leasing commissions in accordance with the terms of Section 7(b)
of the Agreement.
Assignee acknowledges that, simultaneously with the execution hereof,
Assignee has received $_____________ from Assignor and an assignment of the
letters of credit set forth on Schedule C attached hereto in respect of the
-----------
Transferred Security Deposits.
This Assignment and Assumption of Leases and Contracts is made by
Assignor without recourse and without any express or implied representation or
warranty whatsoever except to the extent expressly provided in the Agreement.
This Assignment and Assumption of Leases and Contracts inures to the
benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
and Assumption of Leases and Contracts to be executed as of this ___ day of
___________, 199_.
ASSIGNOR:
--------
AZIW LLC
By: AZIW Inc., its managing member
By: ___________________________
Name:
Title:
ASSIGNEE:
--------
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership, L.P.,
its manager
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By: _______________________
Name:
Title:
Exhibit H
Form of General Assignment and Assumption
-----------------------------------------
Exhibit H
FORM OF GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
---------------------------------------------------
THIS GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT is made and entered
into this ___ day of _______________, 199_, between AZIW LLC, a New York limited
liability company, having an address c/o The Macklowe Organization, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Assignor"), and Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC,
a New York limited liability company, having an address c/o ▇▇ ▇▇▇▇▇ Realty
Corp., ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Assignee").
W I T N E S S E T H:
- - - - - - - - - -
Assignor for Ten Dollars ($10.00), and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby assigns to Assignee all of Assignor's right, title and interest in, to
and under (i) all books, records, and files owned by Assignor and relating to
the occupancy, use or operation of the real property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Premises"), (ii) all transferable licenses, approvals,
certificates and permits held by Assignor and exclusively relating to the
occupancy, use or operation of the Premises, and (iii) all other items of
intangible personal property owned by Assignor and exclusively relating to the
occupancy, use or operation of the Premises (the items set forth in clauses (i)
through (iii) above are hereinafter referred to collectively as the "Property");
TO HAVE AND TO HOLD unto Assignee and its successors and assigns to
its and their own use and benefit forever.
Assignee hereby expressly assumes the obligations of Assignor in
respect of the Property accruing from and after the date hereof.
This agreement is made by assignor without recourse and without any
expressed or implied representation or warranty whatsoever.
This Agreement inures to the benefit of the parties hereto and their
respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have caused this General
Assignment and Assumption Agreement to be executed as of this ___ day of
_____________, 199_.
ASSIGNOR:
--------
AZIW LLC
By: AZIW Inc., its managing member
By: ___________________________
Name:
Title:
ASSIGNEE:
--------
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership, L.P.,
its manager
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By: _______________________
Name:
Title:
Exhibit I
Memorandum
----------
Exhibit I
FORM OF SECTION 15 MEMORANDUM
-----------------------------
MEMORANDUM
----------
THIS MEMORANDUM is executed as of August __, 1998, between AZIW LLC, a
New York limited liability company, having, an address c/o The Macklowe
Organization, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Seller"), and
Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York limited liability company, having an address
c/o ▇▇ ▇▇▇▇▇ Realty Corp., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller and Purchaser are parties to an Agreement of even date
herewith (the "Agreement") pursuant to which Seller has contracted to sell and
Purchaser has contracted to acquire all of Seller's right, title and interest in
and to certain land, together with improvements to be constructed thereon,
described on Schedule A annexed hereto and made a part hereof (the "Premises")
----------
in Borough of Manhattan, City, County and State of New York.
WHEREAS, the parties desire to record a memorandum memorializing,
certain (but not all) of the terms, provisions, covenants and conditions set
forth in the Agreement.
NOW, THEREFORE, Seller and Purchaser declare as follows:
1. The Agreement provides as follows:
TAX REDUCTION PROCEEDINGS.
-------------------------
Seller has filed an application for the reduction of the assessed valuation
of the Premises for real estate taxes for the New York City fiscal year July 1,
1998 to June 30, 1999 (the "98/99 Tax Year") with respect to which proceeding
--------------
Seller has agreed to direct Fashion Gallery Owners, LLC ("Owner"). Provided
Purchaser is not in default hereunder, Seller shall confer with, and accept the
direction of, Purchaser with respect to any direction to Owner about any
decision to settle or prosecute the tax reduction proceeding relating to the
98/99 Tax Year. The amount of any tax refunds (net of attorneys' fees and other
costs of obtaining such tax refunds) with respect to any portion of the Premises
for the tax year in which the Apportionment Date occurs shall be apportioned
between Seller and Purchaser as of the Apportionment Date. To the extent that
any tenant shall, in accordance with the terms of its Lease, be entitled to
receive a portion of any tax refunds which Seller or Purchaser is entitled to
receive hereunder, then Seller or Purchaser, as the case may be, shall be
obligated to pay such portion thereof to such tenant in accordance with its
Lease. If, in lieu of a tax refund for the 98/99 Tax Year, a tax credit is
received with respect to any portion of the Premises for any future tax year,
then (x) within thirty (30) days after receipt by Seller or Purchaser, as the
case may be, of evidence of the actual amount of such tax credit (net of
attorneys' fees and other costs of obtaining such tax credit), the tax credit
apportionment shall be readjusted between Seller and Purchaser, and (y) upon
realization by Purchaser of a tax savings on account of such credit, Purchaser
shall pay to Seller an amount equal to its pro rata share of the savings
realized (as apportioned).
2. Purchaser has delivered a contract deposit in the amount of $________
which deposit will be (i) credited against the purchase price, (ii) retained by
Seller or (iii) returned to Purchaser, as provided in the Agreement.
3. The terms of this Memorandum and the obligations and benefits
conferred hereunder shall inure to the successors and assigns of the parties
hereto.
IN WITNESS WHEREOF, this Memorandum of Lease has been duly executed
as of the date first above written.
AZIW LLC
By: AZIW Inc., its managing member
By: ___________________________
Name:
Title:
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership, L.P.,
its manager
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By: ___________________________
Name:
Title:
ACKNOWLEDGMENTS
---------------
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the ___ day of _____________, 1998 before me, the undersigned, a
notary in and for said state, personally appeared ______________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity and that by
his/her signature on the instrument, the individual, or the person upon behalf
of which the individual acted, executed the instrument.
__________________________
Notary Public
STATE OF NEW YORK )
)ss.
COUNTY OF NEW YORK )
On the ___ day of _____________, 1998 before me, the undersigned, a
notary in and for said state, personally appeared ______________________
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity and that by
his/her signature on the instrument, the individual, or the person upon behalf
of which the individual acted, executed the instrument.
__________________________
Notary Public
EXHIBIT J
---------
Intentionally Omitted
Exhibit K
Nominee Agreement
-----------------
Exhibit K
---------
NOMINEE AGREEMENT
NOMINEE AGREEMENT (this "Agreement"), made this ____ day of
---------
August, 1998, by and between AZIW LLC, a New York limited liability company,
having an address c/o The Macklowe Organization, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("AZIW") and GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York limited
liability company, having an address c/o ▇▇ ▇▇▇▇▇ Realty Corp., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Green").
W I T N E S S E T H:
WHEREAS, AZIW has entered into a certain Purchase and Sale
Agreement dated ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇ "▇▇▇") with Fashion Gallery Owners, LLC, for
the purpose of acquiring record title to the premises commonly known as ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Property");
WHEREAS, AZIW and Green have entered into an Agreement (the
"Agreement") with respect to the Property; and
WHEREAS, Green has requested that AZIW act as a nominee for Green
in connection with the purchase of the Property, and AZIW has willingly agreed
to act as a nominee for Green.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions hereinafter contained and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties do hereby agree as follows:
1. Green hereby appoints AZIW to act as its nominee and AZIW
hereby accepts such appointment and agrees to perform such duties for and on
behalf of Green as are set forth in this Agreement.
2. AZIW acknowledges that AZIW is or will be holding all rights
under the PSA solely as nominee for and on behalf of Green and that AZIW has no
personal or beneficial interest, but only an interest as Green's nominee, in and
to the PSA and/or the Property.
3. Green shall have and shall at all times continue to have all
benefits, rights, privileges and indemnities accruing under or with respect to
the PSA, the Property and any interest related thereto.
4. For AZIW's services under this Agreement, Green shall pay to
AZIW a fee of One Hundred Dollars ($100.00) per annum, payable annually in
advance as of the first day of January of each year from the date of this
Agreement and in addition thereto, shall reimburse AZIW for any out-of-pocket
expenses actually incurred by AZIW on behalf of Green.
5. AZIW shall have no discretionary authority to act for or on
behalf of Green and AZIW shall not do or suffer to be done any act or omission
with respect to the PSA or the Property, but shall perform only such acts as may
be specifically requested by Green in writing, including, without limitation,
the following:
(a) Upon delivery of written instructions from Green, AZIW
shall immediately cause (i) title to the Property and (ii) any interest related
thereto to be transferred and assigned to Green or to such other person, persons
or entities as Green may, in its sole discretion, designate.
(b) Any and all notices, statements and communications
received by AZIW as Contract Vendee or with respect to the Property shall be
promptly given to Green in accordance with the Agreement.
(c) If AZIW shall receive any funds advanced pursuant to any
contracts and documents executed in accordance herewith, AZIW shall disburse
such funds in accordance with the directions of Green, either directly to Green
or to such persons, firms and/or entities as Green may, in its sole discretion,
designate. AZIW shall account to Green for all funds so received by AZIW on
behalf of Green in such reasonable manner as Green may from time to time
require.
6. AZIW agrees that, except as required by law or to enforce
its rights hereunder, AZIW shall not, without the prior written consent of
Green, disclose to any third party, the existence of the agency established
hereby or the fact that AZIW is signing any documents as nominee for Green.
7. The authority and duties of AZIW hereunder shall not be
delegated or assigned by AZIW except at the written direction or with the prior
written consent of Green.
8. Notwithstanding anything herein contained to the contrary,
this Agreement shall terminate and be of no further force or effect upon the
conveyance of the Property to Green or Green's designee.
9. This Agreement and the rights and obligations of AZIW and
Green hereunder are subject to the terms and conditions applicable hereto set
forth in Section 18(b) of the Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first above written.
AGENT:
AZIW LLC
By: AZIW Inc.
By:_____________________________
Name:
Title:
PRINCIPAL:
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership,
L.P., its manager
By: ▇▇ ▇▇▇▇▇ Realty Corp., its
general partner
By:_____________________________
Name:
Title:
Exhibit L
Assignment of Membership Interests
----------------------------------
Exhibit L
ASSIGNMENT AND ASSUMPTION
OF
MEMBERSHIP INTEREST
THIS ASSIGNMENT AND ASSUMPTION ("Assignment")is made as of this
day ______ of August 1998, by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, having an address at
▇▇▇ ▇▇▇▇ ▇▇" ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as
"Assignor," and Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York limited liability company
having an address at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 100 18, hereinafter
referred to as "Assignee."
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Assignor is the present holder of ninety-nine percent (99%) of
the membership interests in AZIW LLC, a New York limited liability Company (the
"Company"); and
WHEREAS, Assignor desires to transfer to Assignee and Assignee desires
to acquire, a forty-nine percent (49%) membership interest in and to the Company
from Assignor (such interest is hereinafter referred to as the "Membership
Interesf");
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
1. Assignor hereby irrevocably and absolutely assigns and transfers the
Membership Interest to Assignee and directs that all future distributions and
allocations of taxable income or loss on account of the Membership Interest be
paid or allocated to Assignee, and Assignee hereby agrees to and accepts this
Assignment and assumes and agrees to discharge all of the obligations,
responsibilities and liabilities of Assignor under the Operating Agreement of
the Company as the owner and holder of the Membership Interest. Such assignment
is made without any warranties, recourse or representations.
2. Assignor hereby certifies that, to its best knowledge, it is the
sole owner of the Membership Interest, that the Membership Interest has not been
pledged, and that there are no liens or encumbrances attached to such Membership
Interest.
3. This Assignment shall be binding upon and shall inure to the benefit
of the parties hereto, their administrators, successors-in-interest and assigns.
4. This Assignment shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, each of the undersigned has executed this
Assignment as of the date first above written.
__________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership,
L.P., its manager
By: ▇▇ ▇▇▇▇▇ Realty Corp., its
general partner
By:________________________
Name:
Title:
Exhibit M
---------
AMENDED AND RESTATED OPERATING AGREEMENT
See Attached
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
AZIW LLC
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
1.1 Definitions ...................................................1
ARTICLE 2
MEMBERS, TERM, NAME, PURPOSE AND PLACE OF BUSINESS
2.1 Continuation of the Company ........................................4
2.2 Name ...............................................................5
2.3 Purposes and Powers ................................................5
2.4 Articles of Organization; Foreign Qualification ....................5
2.5 No State Law Partnership; Liability to Third Parties ...............5
2.6 Place of Business ..................................................5
2.7 Term ...............................................................6
ARTICLE 3
CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS
3.1 Interests of Members ...............................................6
3.2 Capital Contributions ..............................................6
3.3 Capital Accounts ...................................................6
3.4 Managing Member's Liability for Capital ............................8
ARTICLE 4
MANAGEMENT
4.1 Management Powers of the Managing Member ........................8
4.2 Board of Directors ..............................................8
4.3 Action by Directors .............................................8
4.4 Officers ........................................................10
4.5 The Members Have No Management Powers ...........................10
4.6 Compensation of the Managing Member; Reimbursement for Expenses .10
4.7 Indemnification .................................................11
4.8 Exculpation; Duties .............................................11
4.9 Reserves ........................................................12
4.10 Certain Tax Matters .............................................12
4.11 Meetings ........................................................13
ARTICLE 5
CASH DISTRIBUTIONS
5.1 Net Cash Flow ....................................................13
5.2 Allocation of Net Cash Flow ......................................13
5.3 Limitation on Distributions ......................................13
ARTICLE 6
ALLOCATION OF TAXES; SPECIAL ALLOCATIONS
6.1 Definition of Net Profits and Net Losses .........................14
6.2 Allocation of Net Profits ........................................14
6.3 Allocation of Net Losses .........................................14
6.4 Special Allocations ..............................................15
6.5 Negative Capital Accounts ........................................16
6.6 Section 704(c) Allocations .......................................16
ARTICLE 7
BOOKS, RECORDS, REPORTS AND ACCOUNTS
7.1 Books and Records ................................................17
7.2 Retention of Books and Records ...................................17
7.3 Members' Rights Regarding Books, Records, and Tax Information ....18
7.4 Reports ..........................................................18
7.5 Bank Accounts ....................................................18
7.6 Goodwill .........................................................18
7.7 Election under Section 754 of the Code ...........................18
ARTICLE 8
WITHDRAWAL; TRANSFER OF COMPANY INTERESTS
8.1 Restriction on the Transfer of Membership Interests .............19
8.2 Withdrawal; Death or Incapacity; Further Conditions .............20
ARTICLE 9
DISSOLUTION LIQUIDATION AND TERMINATION OF THE COMPANY
9.1 Dissolution .....................................................21
9.2 Liquidation and Termination .....................................21
9.3 Payment of Debts ................................................22
9.4 Remaining Distribution ..........................................22
9.5 Reserves ........................................................22
9.6 Final Accounting ................................................22
ARTICLE 10
POWER OF ATTORNEY
10.1 Power ............................................................22
10.2 Survival of Power ................................................23
ARTICLE 11
SEPARATE LEGAL ENTITY
11.3 Separate Legal Entity.............................................23
ARTICLE 12
FURTHER DOCUMENTS; CONSENT
12.1 Execution by Members .............................................25
12.2 Method of Givine Consent .........................................25
ARTICLE 13
MISCELLANEOUS
13.1 Authority to Amend ...............................................25
13.2 Choice of Law ....................................................25
13.3 Choice of Forum ..................................................26
13.4 Notices ..........................................................26
13.5 Entire Agreement .................................................26
13.6 Severability .....................................................26
13.7 Binding Agreement ................................................26
13.8 Waiver of Action for Partition ...................................26
13.9 Terminology ......................................................26
13.10 Captions .........................................................26
13.11 Counterparts .....................................................27
EXHIBIT A
AMENDED AND RESTATED
OPERATING AGREEMENT
OF AZIW LLC
AGREEMENT made as of this ____ day of August, 1998, by and between
[Macklowe Entity], a [New York] [limited liability company] having an address at
[______________________] ("[_____]"); and Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York
limited liability company having an address at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Broadway")([Macklowe Entity] and Broadway are hereinafter
referred to individually as a "Member" or collectively as the "Members").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the [Macklowe Entity] formed a New York limited liability
company as the sole Member on __________ 1998 named AZIW LLC (hereinafter, the
"Company") for the purpose of acquiring that certain real property described on
Exhibit A attached hereto and more commonly known as ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ (the "Property");
WHEREAS, the [Macklowe entity] desires to admit Broadway as an
additional Member of the Company; and
WHEREAS, the [Macklowe entity] and Broadway desire to amend and restate
the original Operating Agreement of the Company and that this Agreement be, and
hereby is, the sole governing document of the Company.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree to the following intending to be
legally bound thereby:
ARTICLE I
---------
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement the following terms
shall have the meanings respectively assigned to them in this Article I unless
otherwise expressly provided herein or unless the context otherwise requires:
Affiliate: "Affiliate" shall mean, with respect to another person, (a)
any Person directly or indirectly owning, controlling or holding with power to
vote ten percent (10%) or more of the outstanding voting securities or interests
of such other Person; (b) any Person ten percent (10%) or more of whose
outstanding voting securities are directly or indirectly owned, controlled or
held with power to vote by such other Person; (c) any Person directly or
indirectly controlling, controlled by or under common control with such other
Person; (d) any officer, director or partner of such other Person; (e) if such
other Person is an officer, director or partner, any company for which such
Person acts in any such capacity; and (f) any close relative or spouse of the
specified Person.
Agreement: "Agreement" shall mean this Amended and Restated Operating
Agreement of the Company as the same may be amended or restated from time to
time in accordance with its terms.
Bankrupt Member: "Bankrupt Member" shall mean any member (a) that (i)
makes an assignment for the benefit of creditors; (ii) files a voluntary
petition in bankruptcy; (iii) is adjudged a bankrupt or insolvent, or has
entered against such Member an order for relief, in any bankruptcy or insolvency
proceedings; (iv) files a petition or answer seeking for the Member any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any statute, law or regulation; (v) files an answer or
other pleading admitting or failing to contest the material allegations of a
petition filed against the Member in any proceeding of the type described in
subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents to, or
acquiesces in the appointment of a trustee, receiver or liquidator of the Member
or of all or any substantial part of the Member's properties; or (b) against
which, a proceeding seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any statute, law
or regulation has been commenced and one hundred twenty (120) days have expired
without dismissal thereof or with respect to which, without the Member's consent
or acquiescence, a trustee, receiver or liquidator of the Member or of all or
any substantial part of the Member's properties has been appointed and ninety
(90) days have expired without the appointment having been vacated or stayed, or
ninety (90) days have expired after the date of expiration of a stay, if the
appointment has not previously been vacated.
Assignee: "Assignee" shall mean a Person who has acquired a share of
the Company's profits and losses and such rights to receive distributions from
the Company as are assigned to that Person, but who is not a Substitute Member.
Capital Account: "Capital Account" shall mean, as to the Member, the
account established and maintained for such Member pursuant to Article 3 hereof.
Capital Contribution: "Capital Contribution" shall mean the amount in
cash contributed and the fair market value of other property contributed by each
Member (or its predecessors in interest) to the capital of the Company for such
Member's Membership Interest.
Certificates: "Certificates" shall mean any issue of securities issued
in respect of a pool of mortgage loans that includes the First Mortgage.
Code: "Code" shall mean the Internal Revenue Code of 1986, as amended.
Company: "Company" shall mean AZIW LLC, a New York limited liability
company.
Control: "Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of management, policies or
activities of a person or entity, whether through ownership of voting
securities, by contract or otherwise).
Independent Representative: "Independent Representative" shall mean a
director of the Company who is not at the time of appointment, has not been at
any time during the preceding five (5) years and shall not be at any time while
serving as Independent Representative any of the following: (a) a stockholder,
director (other than in his or her capacity as the Independent Representative),
officer, employee, partner, member, or partner of any member of the Company, the
Company, or any Affiliate of any such member or the Company; (b) a stockholder,
director, officer, employee, partner, or member of any customer of, supplier or
service provider (including professionals) to, or other Person who derives more
than 10% of its purchases, revenues, compensation, or other financial
remuneration from its activities with, any member of the Company, the Company,
or any Affiliate of any such member of the Company or who otherwise is
financially dependent upon an officer, director, or employee of the Company, the
Company, a family member (by blood or marriage) of any such officer, director,
or employee, or a business entity owned or controlled by any of the foregoing;
(c) a Person or other entity controlling or under common control with any such
stockholder, director, officer, employee, partner, member, customer, supplier or
other Person; or (d) a member of the immediate family of any individual
described in (a), (b), or (c) above. Notwithstanding the foregoing, an
Independent Representative may serve in similar capacities for other "special
purpose" entities formed by the Company or any affiliate thereof. The initial
Independent Representative of the Company shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
IRS: "IRS" shall mean the Internal Revenue Service.
Loan: "Loan" shall mean that certain first mortgage loan made by
[Nomura] (together with its successors and assigns, "Lender") in favor of AZIW
LLC and secured by the premises commonly known as ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ (the "Property").
Loan Documents: "Loan Documents" shall have the meaning ascribed to it
in that certain Agreement of Assignment of Assumption of Loan dated as of 1998,
among Lender, AZIW LLC and others.
Managing Member: "Managing Member" shall mean the (Macklowe entity] and
any successor Managing Member appointed pursuant to this Agreement, each in its
capacity as a managing member of the Company.
Membershinp Interest: "Membership Interest" shall mean the limited
liability company interest of the Member in the Company, including, without
limitation, rights in the capital of the Company, rights to receive
distributions (liquidating or otherwise) and allocations of profits and losses.
Non-Consolidation Opinion: "Non-Consolidation Opinion" shall mean an
opinion of counsel to the Company (reasonably satisfactory to the Lender and
each Rating Agency in form and substance, from counsel reasonably satisfactory
to the Lender and each Rating Agency and containing assumptions, limitations and
qualifications customary for opinions of such type) to the effect that a court
of competent jurisdiction in a proceeding under the United States Bankruptcy
Code would not consolidate the assets and liabilities of the Company with those
of any member or Affiliate thereof which became a debtor under the United States
Bankruptcy Code and would not consolidate the assets and liabilities of the
Managing Member with those of any equity owner thereof which became a debtor
under the United States Bankruptcy Code, and if applicable to the Company, that
any such Transfer would not be a fraudulent conveyance under the United States
Bankruptcy Code.
Person: "Person" shall mean a natural person, estate, partnership
(whether general or limited and whether domestic or foreign), joint venture,
limited liability company, foreign limited liability company, association,
corporation, real estate investment trust, business trust or other trust,
custodian, nominee or any other individual or entity in its own or any
representative capacity.
Rating Agency: "Rating Agency" shall mean any nationally recognized
rating agency that has been requested by the Lender or any transferee of the
Lender to rate any Certificates and which is then rating, or expected to rate,
such Certificates.
Single Purpose Entity: "Single Purpose Entity" shall mean an entity,
other than an individual, that is formed or organized solely for the purpose of
holding, directly or indirectly through one or more other Single Purpose
Entities, an interest in the Company, does not engage in any business unrelated
to the ownership of such interest, does not have any assets other than those
related to the ownership of such interest, has its own separate books and
records and its own accounts, holds itself out as being an entity separate and
apart from any other entity, and whose organizational documents contain
provisions substantively similar to those contained as of the date hereof in the
Articles of Organization of the Company relating to its purpose, separateness,
and the requirement for direct or, if such entity is not a corporation,
indirect, con-sent of an Independent Representative to the same types of
transactions specified herein.
Substitute Member: "Substitute Member" shall mean any Person to whom
the Membership Interest in the Company has been transferred and who was not the
Member immediately prior to such transfer and who has been admitted to the
Company as the Member pursuant to and in accordance with the provisions of
Article 8 of this Agreement.
Transfer: "Transfer" shall mean a sale, assignment, transfer, exchange,
mortgage, pledge, grant of a security interest, or other disposition or
encumbrance (including, without limitation, by operation of law), or any act
thereof.
ARTICLE 2
MEMBERS, TERM, NAME, PURPOSE AND PLACE OF BUSINESS
2.1 Continuation of the Company. The parties hereto agree to continue
AZIW LLC under the New York Limited Liability Company Law ▇▇.▇▇. 101 Ct. Sec.
(the "Law"), as such Law may from time to time be amended; provided, however,
that in the event of any inconsistency between any provision of the Law and the
provisions of this Agreement, the provisions of this Agreement shall govern.
2.2 Name. The name of the Company is AZIW LLC. The business of the
Company shall be conducted solely under such name and title to all assets of the
Company shall be held in such name.
2.3 Purposes and Powers. The Company has been formed for the purpose of
owning, holding, selling, leasing, transferring, exchanging, operating and
managing the Property and engaging in any and all activities permitted under the
Law which are incidental thereto. Until the Loan is paid and satisfied in full,
the purposes of the Company shall not be amended, modified or supplemented in
any respect. The Company shall not engage in any activities other than as
permitted by this section.
2.4 Articles of Organization; Foreign Qualification. The Articles of
Organization of the Company were filed for record in the office of the Secretary
of State of the State of New York on _________, 1998, in accordance with the
Law. Prior to the Company's conducting business in any jurisdiction other than
the State of New York, the Managing Member of the Company shall cause the
Company to comply, to the extent procedures are available and those matters are
reasonably within the control of the Managing Member, with all requirements
necessary to qualify the Company as a foreign limited liability company in that
jurisdiction. At the request of the Managing Member of the Company, each Member
shall execute, acknowledge, swear to, and deliver all certificates and other
instruments conforming with this Agreement that are necessary or appropriate to
qualify, continue and terminate the qualification of the Company as a foreign
limited liability company in all such jurisdictions in which the Company may
conduct business. The Managing Member is hereby designated as an authorized
person, with the meaning of the Law, to execute, deliver and file, or cause the
execution, delivery and filing of, all certificates (and any amendments and/or
restatements thereof) required or permitted by the Law to be filed in the office
of the Secretary of State of the State of New York. The Managing Member shall
execute and file all documents required by the Law to be filed in connection
with the continuation of the Company and to preserve and maintain the limited
liability of its Members.
2.5 No State Law Partnership; Liability to Third Parties. The Members
intend that the Company be a partnership solely for federal and state income tax
purposes. It is the Members intention that the Company not be a partnership
(including, without limitation, a limited partnership) or joint venture, that no
Member be a partner or joint venturer of any other Member and that this
Agreement not be construed to suggest otherwise. Except as otherwise
specifically provided in the Law, no Member shall be liable for the debts,
obligations or liabilities of the Company or any other Member, including under a
judgment, decree or order of a court.
2.6 Place of Business. The principal place of business of the Company
shall be _____ or at such other location as may be selected by the Managing
Member from time to time. The Managing Member shall give notice to the Members
of any change in the location of the principal place of business of the Company.
2.7 Term. The term of the Company shall continue in perpetuity, unless
the Company is earlier dissolved pursuant to law or the provisions of this
Agreement.
ARTICLE 3
CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS
3.1 Interests of Members. Subject to Articles 7 and 8 hereof, the
respective interests of the Members ("Percentage Interests") in the Company
shall be as follows:
[Macklowe Entity] 51%
Broadway 49%
---
Total 100%
====
3.2 Capital Contributions.
3.2.1 Upon execution hereof, each Member contributed to the
capital of the Company the cash and/or value of property set forth on Exhibit A
annexed hereto.
3.2.2 No Member may withdraw any capital from the Company without
the consent of all the other Members.
3.2.3 Except as otherwise provided herein, no Member shall have
the right to demand or receive property, other than cash, in return for a
capital contribution or have priority over another Member, either as to the
return of capital contributions or as to profits, losses or distributions, or as
to compensation by way of income.
3.2.4 No Member shall be entitled to interest of any kind on its
capital contribution.
3.2.5 No Member shall be required to contribute any additional
cash or property to the capital of the Company.
3.3 Capital Accounts. A capital account ("Capital Account") shall be
maintained for each Member on the books of the Company in accordance with the
provisions of Treasury Regulation section 1.704-1(b)(2)(iv) as such regulation
is in effect on the date hereof.
3.3.1 Subject to the last sentence of section 2.3.3 below, the
Capital Account of each Member shall be credited with (i) an amount equal to
such Member's cash capital contributions and the fair market value of property
contributed to the Company (net of liabilities secured by such property), and
(ii) such Member's share of the Company's Net Profit and any item of gain
specially allocated to such Member in accordance with Article 5 hereof, but for
this purpose including income and gain exempt from tax;
3.3.2 Subject to the last sentence of Section 2.3.3, below, the
Capital Account of each Member shall be debited by (i) the amount of cash
distributions to such Member and the fair market value of property distributed
to the Member (net of liabilities secured by such property), and (ii) such
Member's share of the Company's Net Loss and any item of loss or expense
specially allocated to such Member pursuant to Article 5 hereof, and of
expenditures which are permitted to be neither capitalized nor deducted for tax
purposes (including for this purpose losses or expenses which may not be
deducted for tax purposes pursuant to either Section 267(a)(1), Section 709 or
Section 707(b) of the Internal Revenue Code of 1986, as amended (the "Code")).
3.3.3 Upon the transfer of an interest in the Company, the Capital
Account of the transferor Member (as adjusted, if at all, as required by this
Section 2.3.3) that is attributable to the transferred interest will be carried
over to the transferee Member. The Capital Account will not be adjusted to
reflect any adjustment under Section 743 of the Code. Upon (1) the liquidation
of the Company, (2) the liquidation of a Member's interest in the Company, (3)
the distribution of money or property to a Member, or (4) the contribution of
money or property to the Company by a new or existing Member as consideration
for an interest in the Company, adjustments shall be made to the Members'
Capital Accounts in the following manner. Any property of the Company which is
not sold in connection with such event shall be valued at their then fair market
value. Such fair market value shall be used to determine both the amount of gain
or loss which would have been recognized by the Company if the property had been
sold for such fair market value (subject to any debt secured by the property) at
such time, and the amount of Net Cash Flow which would have been distributable
by the Company pursuant to Article 4 if the property had been sold at such time
for said fair market value (less the amount of any debt secured by the
property). The Capital Accounts of the Members shall be adjusted to reflect the
allocation of such hypothetical gain or loss (in accordance with Article 5). The
Capital Accounts of the Members (or of a transferee of a Member) shall
thereafter be adjusted to reflect the Member's share of "book items" rather than
tax items in accordance with Treasury Regulation Sections 1.704-1(b)(2)(iv)(g)
and 1.704(b)(4)(i) and subsequent allocations of income, gain, loss and
deductions shall be made as necessary so as to take account of the variation
between the adjusted tax basis and the fair market value of such property in
accordance with Section 704 of the Code.
3.3.4 For purposes of Section 2.3.3, (A) the term "liquidation of
the Company" shall mean (1) a termination of the Company effected in accordance
with Article 8, but only if the Company ceases to be a going concern and is
continued in existence solely to wind-up its affairs, or (2) a termination of
the Company pursuant to Section 708(b)(1) of the Code, and (B) the term
"liquidation of a Member's interest in the Company" shall mean the termination
of the Member's entire interest in the Company effected by a distribution, or a
series of distributions, by the Company to the Member.
3.3.5 The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with the Treasury Regulations promulgated under Section 704 of the Code (the
"Regulations"), and shall be interpreted and applied in a manner consistent with
such Regulations. In the event the Managing Member shall determine that it is
prudent to modify the manner in which the Capital Accounts, or any debits or
credits thereto, are computed in order to comply with such Regulations, the
Managing Member may make such modification after notifying all other Members in
writing of the intent to so modify the Capital Accounts and provided further
that no Member objects in writing to such modification within ten (10) days of
such notice.
3.4 Managing Member's Liability for Capital. The Managing Member shall
have no personal liability for the return of any Capital Contributions to the
Members or to compensate a negative balance in the Capital Account of any Member
existing at any time.
ARTICLE 4
MANAGEMENT
4.1 Management Powers of the Managing Member. Except as otherwise
expressly provided in this Agreement, the management, operation and control of
the Company and its day-to-day business and affairs shall vest solely in the
Managing Member. The Managing Member of the Company shall be the [Macklowe
Entity]. The officers of the Company shall conduct the Company's business and
affairs pursuant to, and in accordance with, the annual goals established by the
Managing Member. The Managing Member may delegate to such other officers as it
may appoint from time to time the authority to conduct the day-to-day operations
of the Company's business.
4.2 Board of Directors. The Company shall have a Board of Managers
which shall be designated as the Company's "Board of Directors" and each member
of the Board of Directors shall be designated as a "Director." The Board of
Directors shall have the authority set forth in this Agreement. The Directors
are not "managers" within the meaning of the Law. The initial members of the
Board of Directors shall be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and the Independent Representative.
Members of the Board of Directors may be appointed and removed from time to time
by the Managing Member, in its sole discretion, provided, however, that as long
as the Loan is outstanding, the Company shall have at lease one Independent
Representative. The Board of Directors shall hold meetings, at such times and
places to be agreed upon by a majority of the Board of Directors.
4.3 Action by Directors.
4.3.1 Except as set forth in Section 7.3.2, any action required by
this Agreement to be taken by the Directors shall require the agreement of not
less than a majority of the Directors.
4.3.2 Until the Loan is paid and satisfied in full, the Company
may take the following actions only with unanimous approvals of all members of
the Board of Directors, including, without limitation, the Independent
Representative:
(i) make an assignment for the benefit of creditors;
(ii) file a voluntary petition in bankruptcy;
(iii) file a petition or answer seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute,
law or regulation;
(iv) file an answer or other pleading admitting or
failing to contest the material allegations of a petition
filed against the Company in any proceeding of the type
described in subclauses (i) through (iii) of this Section
4.3.2;
(v) seek, consent to, or acquiesce in the appointment
of a trustee, receiver or liquidator of the Company or of all
or any substantial part of the Company's properties;
(vi) amend this Agreement;
(vii) voluntarily dissolve and wind up, or
consolidate or merge the Company or sell all or substantially
all of the assets of the Company;
(viii) engage in any business activity not set forth
in Section 2.3 of this Agreement; and
(ix) take any action that would permit the Company
to: (a) make an assignment for the benefit of creditors; (b)
file a voluntary petition in bankruptcy; (c) file a petition
or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief under any statute, law, or regulation; (d) file an
answer or other pleading admitting or failing to contest the
material allegations of a petition filed against the Company
in any proceeding of the type described in subc1auses (a)
through (c) of this clause (ix); (e) seek, consent to, or
acquiesce in the appointment of a trustee, receiver or
liquidator of the Company or of all or any substantial part of
the Company's properties; (f) amend the Amended and Restated
Operating Agreement of the Company, or (g) dissolve,
liquidate, consolidate or merge the Company or sell all or
substantially all of the assets of the Company.
No member of the Board of Directors shall be guilty of breaching any
fiduciary duty to any Member by refusing to consent to any of the above listed
actions.
4.3.3 Notwithstanding anything in this Agreement, the Company may
not take any of the actions set forth in subsections (vi) and (vii) of Section
7.3.2 until the Loan is paid and satisfied in full.
4.4 Officers.
4.4.1 The Company shall have an officer designated as the
Company's President who shall be appointed from time to time by the Managing
Member. The President shall be the chief operating officer of the Company. The
President of the Company is hereby delegated the power, authority and
responsibility of the day-to-day management, administrative, financial and
implementive acts of the Company's business. The President of the Company shall
have the right and power to bind the Company and to make the final determination
on questions relative to the usual and customary daily business decisions,
affairs and acts of the Company. Other primary management functions of the
Company shall be assigned by the Managing Member.
4.4.2 The Company shall also have officers designated as vice
presidents who shall be appointed from time to time by the Managing Member. The
vice presidents shall have such powers and duties as may from time to time be
assigned to them by the Managing Member or the president. At the request of the
president, or in the case of his absence or disability, the vice president
designated by the president (or in the absence of such designation, the vice
president designated by the Managing Member) shall perform all the duties of the
president and, when so acting, shall have all the powers of the president.
4.4.3 The Managing Member may appoint such other offices as it may
deem advisable from time to time. Each officer of the Company shall hold office
at the pleasure of the Managing Member, and the Managing Member may remove any
officer at any time, with or without cause. If appointed by the Managing Member,
the officers shall have the duties assigned to them by the Managing Member.
4.5 The Members Have No Manazement Powers. The Members (other than the
Managing Member) shall have no voice or participation in the management of the
Company business, and no power to bind the Company or to act on behalf of the
Company in any manner whatsoever, except as specifically authorized by this
Agreement.
4.6 Compensation of the Managing Member; Reimbursement for Expenses.
4.6.1 The Managing Member shall receive no compensation for acting
as Managing Member of the Company.
4.6.2 All costs and expenses actually incurred in connection with
the organization of the Company and the ongoing operation or management of the
business of the Company shall be borne by the Company.
4.6.3 The Company shall reimburse the Managing Member for all
actual and reasonable out-of-pocket costs and expenses incurred by the Managing
Member in connection with the organization and business of the Company.
4.7 Indemnification.
4.7.1 General. Except as otherwise provided in this Section 7.4,
the Company shall indemnify any Director or officer and may indemnify any
employee or agent of the Company who was or is a party or is threatened to be
made a party to a threatened, pending, or completed action, suit, or proceeding
(whether civil, criminal, administrative, or investigative and whether formal or
informal) other than an action by or in the right of the Company, where such
person is a party because such person is or was a Director, officer, employee,
or agent of the Company. Except as otherwise provided in this Section 7.4, the
Company shall indemnify its Directors against expenses, including, attorney
fees, judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by a Director in connection with an action, suit or
proceeding relating to acts or omissions of that Director regarding the items
set forth in Section 7.2.2 of this Agreement.
4.7.2 Permissive Indemnification. Except as otherwise provided in
this Section 7.4, the Company shall indemnify such Director, officer, employee
or agent against expenses, including attorneys fees, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with the action, suit or proceeding. To the fullest extent
permitted by law, the Company shall indemnify such Director, officer, employee,
or agent if the person acted in good faith and did not engage in willful
misconduct or gross negligence. With respect to a criminal action or proceeding,
the person must have had no reasonable cause to believe such person's misconduct
was unlawful. Unless ordered by a court, any indemnification permitted under
this Section 7.4.2 shall be made by the Company only as the Company authorizes
in the specific case after (i) determining that the indemnification is proper
under the circumstances because the person to be indemnified has met the
applicable standard of conduct and (ii) evaluating the reasonableness of the
expenses and of the amounts paid in settlement. This determination and
evaluation shall be made by a majority vote of the Members who are not parties
or threatened to be made parties to the action, suit or proceeding. However, no
indemnification shall be provided to any Director, officer, employee, or agent
of the Company for or in connection with (i) the receipt of a financial benefit
to which the person is not entitled; (ii) voting for assenting to a distribution
to Members in violation of this Agreement or the Law; or (iii) a knowing
violation of law.
4.7.3 Mandatory Indemnification. To the extent that a Director,
officer, employee, or agent of the Company has been successful on the merits or
otherwise in defense of an action, suit, or proceeding described in Section
7.4.1 or in defense of any claim, issue, or other matter in such action, suit or
proceeding, such person shall be indemnified against actual and reasonable
expenses, including attorney fees, incurred by such person in connection with
the action, suit, proceeding and any action, suit or proceeding brought to
enforce such mandatory indemnification.
4.8 Exculpation; Duties.
4.8.1 No Member, Director or officer of the Company shall be
liable to the Company or any other Person who has an interest in the Company for
any loss, damage or claim... (REMAINDER OF TEXT MISSING)
*** PAGE MISSING ***
4.11 Meetings. Meetings of the Members shall not be held unless the
Managing Member, in its sole discretion, decides to call a meeting of the
Members for any purpose.
ARTICLE 5
CASH DISTRIBUTIONS
5.1 Net Cash Flow. Subject to the provisions of Sections 4.3 and 8.3,
the Managing Member shall distribute or cause to be distributed to the Members,
not less often than annually, in accordance with Section 4.2, the excess, if any
"Net Cash Flow"), of:
5.1.1 The aggregate amount of all income and receipts of all kinds
received by the Company from all sources, including (a) rentals, (b) interest,
(c) a sale, exchange or other disposition, or financing or refinancing, of all
or any portion of Company property or any interest therein, and (d) a recovery
for the destruction or other casualty loss of any portion of Company property,
all as determined on a cash basis, over
5.1.2 All cash disbursements of the Company including (a) payment
of interest and principal on any loans when and if due; (b) legal and accounting
fees incurred in connection with the Company business; (c) taxes; (d) all costs
or expenses paid in connection with any sale or refinancing, including, without
limitation, brokerage commissions, commitment fees, standby fees, mortgage taxes
or charges, title insurance premiums, counsel fees, collection costs, recording
charges and appraisal fees; (e) amounts used or to be used in connection with
repairs, alterations, additions, improvements or replacements, made or to be
made, including, without limitation, any repair, improvement, replacement or
addition required to be made as a result of any casualty or as a condition of
sale, condemnation or refinancing; and (f) amounts reserved in accordance with
Section 3.6. If the Managing Member shall determine that any reserve described
above is no longer necessary, funds so reserved shall be distributed to the
Members in the same proportion which would have been determined if such funds
had been distributed pursuant to Section 4.2 at the time of placement in the
reserve.
5.2 Allocation of Net Cash Flow. Net Cash Flow distributable in
accordance with Section 4.1 shall be distributed to the Members in proportion to
their Percentage Interests.
5.3 Limitation on Distributions. Notwithstanding Section 4.2, Net Cash
Flow from a transaction which is a part of the liquidation of the Company in
accordance with Section 8.2, together with other funds remaining to be
distributed at such time, shall be distributed to the Members in accordance with
Section 4.2 no later than the later of (a) the end of the taxable year of the
Company in which such liquidation occurs or (b) within 90 days after the date of
such liquidation event, after payment of all Company liabilities and expenses
(or adequate provision therefor), except that in no event shall the distribution
to a Member exceed the positive balance in such Member's Capital Account after
giving effect to all allocations to such Member under Article 5 of Net Profits
and Net Losses, so that liquidation proceeds shall be distributed in accordance
with each Member's positive Capital Account balance (within the meaning of
Treasury Regulation Section 1.704-1(b)(2)(ii)(b) as in effect on the date
hereof).
ARTICLE 6
ALLOCATION OF TAXES; SPECIAL ALLOCATIONS
6.1 Definitign of Net Profits and Net Losses. "Net Profits" or "Net
Losses", as the case may be, shall mean, for any fiscal year of the Company, the
net profit or net loss of the Company determined for Federal income tax
purposes, but including as an item of income or gain any such item which is
earned by the Company during such year and is exempt from Federal income tax,
and deducting the amount of any expenditures incurred by the Company during such
fiscal year that are described in Section 705(a)(2)(B) of the Code or the
corresponding provisions of any subsequent law and excluding any items that are
specially allocated under Section 5.4 hereof.
6.2 Allocation of Net Profits. Subject to Section 5.4, for each fiscal
year of the Company, Net Profits shall be allocated to the Members as follows:
6.2.1 First, to those Members having negative Capital Account
balances, in the proportion of such negative balances until such balances are
eliminated.
6.2.2 Next, to the Members in the proportions necessary to render
positive Capital Account balances in the same proportion as the Percentage
Interests.
6.2.3 Lastly, to the Members in proportion to their Percentage
Interests.
6.3 Allocation of Net Losses. Subject to Section 5.4, for each fiscal
year of the Company, Net Loss shall be allocated to the Members as follows:
6.3.1 First, to those Members having positive Capital Account
balances, in the proportions necessary to render their respective Capital
Account balances in the same proportion as their respective Percentage
Interests.
6.3.2 Next, to those Members having positive Capital Account
balances, in the proportion of such balances until such balances are eliminated.
6.3.3 Next, to the Members in the proportions necessary to render
negative Capital Accounts in the same proportion as the Percentage Interests.
6.3.4 Lastly, to the Members in accordance with their Percentage
Interests.
6.3.5 Notwithstanding the foregoing, if the allocation of Net Loss
to a Member would create or increase a Qualified Income Offset Amount (as
hereinafter defined in Section 5.4.4), there shall be allocated to such Member
only that amount of Net Loss as will not create or increase a Qualified Income
Offset Amount. In the event some but not all of the Members would have a
Qualified Income Offset Amount as a consequence of an allocation of Net Loss,
the limitation set forth in this Section 5.3.5 shall be applied on a
Member-by-Member basis so as to allocate the maximurn permissible Net Loss to
each Member under Treasury Regulation Section 1.704-1(b)(2)(ii)(d).
6.4 Special Allocations.
6.4.1 If at anytime other than the end of a fiscal year of the
Company a Member shall withdraw from or be admitted to the Company, or shall
transfer all or a part of its interest in the Company, or a shift in the
Percentage Interest of the Members shall occur as the result of any other
occurrence, the allocable share of the various items of Company income, gain,
loss, deduction and credit shall be allocated, to the extent permitted by the
Code, among the Members in the same ratio as the number of days in the year
respectively before and after the transfer or shift is recognized by the Company
bears to the actual number of days in the entire fiscal year.
6.4.2 Notwithstanding any other provision of this Agreement to the
contrary, if there is a net decrease in Company Minimum Gain (determined in
accordance with Treasury Regulation Section 1.704-2(d) as if the Company were a
partnership) during any fiscal year of the Company, then there shall be
specially allocated to each Member items of Company income and gain for such
year (and, if necessary, subsequent fiscal years) in an amount equal to such
Member's share of the net decrease in Company Minimum Gain (determined in
accordance with Treasury Regulation Section 1.704-2(g) as if the Company were a
partnership). The items to be so allocated shall be determined in accordance
with Treasury Regulation Section l.704-2(f)(6) and 1.704-2(j)(2)(i) and (iii).
This Section 5.4.2 is intended to comply with the minimum gain chargeback
requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted
consistently therewith.
6.4.3 Notwithstanding any other provision of this Agreement to the
contrary, if there is a net decrease in Member Minimum Gain during any fiscal
year, then each Member shall be specially allocated items of Company income and
gain for such year (and, if necessary, for subsequent fiscal years) in an amount
equal to that Member's share, if any (determined in accordance with Treasury
Regulation Section 1.704-2(i)(4)), of the net decrease in Member Minimum Gain.
The items to be so allocated shall be determined in accordance with the
provisions of Treasury Regulation Section 1.704-2(i)(4) and 1.704-26)(2)(i). As
used herein, the term "Member Minimum Gain!" shall have the same meaning
ascribed to partner non-recourse debt minimum gain, determined in accordance
with Treasury Regulation Sections 1.704-2(i)(2) and 1.704-2(i)(3). This Section
5.4.3 is intended to comply with the minimum gain chargeback requirement in
Treasury Regulation Section 1.704-2(i) and shall be interpreted consistently
therewith.
6.4.4 If during any fiscal year of the Company any Member receives
any adjustment, allocation or distribution described in Treasury Regulation
Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6) and, as a result of such
adjustment, allocation or distribution, such Member has a Qualified Income
Offset Amount (as hereinafter defined), then a pro rata portion of each item of
Company income and gain (including gross income) for such fiscal year or other
period (and, if necessary, for subsequent fiscal years) shall (prior to any Net
Profits allocation pursuant to Section 5.1 hereof) be allocated to such Member
in an amount and manner sufficient to eliminate such Qualified Income Offset
Amount as quickly as possible; provided, however, that any allocation of income
or gain under this sentence shall be required only if and to the extent that
such Member would have a Qualified Income Offset Amount after all other
allocations provided for in this Agreement have been tentatively made as if this
Section 5.4.4 were not contained herein. As used herein, the term "Qualified
Income Offset Amount" for a Member means the excess, if any of (x) the negative
balance a Member has in its Capital Account taking into account the adjustments,
allocations or distributions described in the preceding sentence, over (y) the
maximum amount that it is obligated (or is deemed to be obligated) to restore to
the Company as determined in accordance with Treasury Regulation Sections
1.704-1(b)(2)(ii)(c), 1.704-2(g)(1) and 1.704-2(i)(5). This Section 5.4.4 is
intended to satisfy the provisions of Treasury Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
6.4.5 Notwithstanding any other provision of this Agreement to the
contrary, Company losses, deductions, and Code Section 705(a)(2)(B) expenditures
that are attributable to a particular Member Non-recourse Liability (as
determined in accordance with Treasury Regulation Section 1.704-2(i)(2)) shall
be specially allocated to the Member(s) who bear(s) the economic risk of loss
for such liability. As used herein, the term "Member Non-recourse Liability"
shall have the same meaning ascribed to "partner non-recourse liability" set
forth in Treasury Regulation Section 1.704-2(b)(4). This Section 5.4.5 is
intended to comply with the allocation provision of Treasury Regulation Section
1.704-2(i)(1) and shall be interpreted consistently therewith.
6.4.6 Non-recourse deductions (as defined in Treasury Regulation
Section 1.704-2(b)) for any fiscal year shall be allocated in proportion to the
Members' Percentage Interests.
6.4.7 The allocation set forth in Sections 5.4.2, 5.4.3, 5.4.4,
5.4.5 and 5.4.6 of this Agreement (the "Regulatory Allocations") are intended to
comply with certain requirements of the Treasury Regulations including Sections
1.704-1(b) and 1.704-2 thereof The Regulatory Allocations may not be consistent
with the manner in which the Members intend to divide Company distributions.
Accordingly, the Managing Member shall cause the Company to allocate future Net
Profits, Net Loss, and other items among the Members so as to prevent the
Regulatory Allocations from distorting the manner in which Company distributions
will be divided among the Members pursuant to this Agreement to the extent
permitted under the Treasury Regulations.
6.5 Negative Capital Accounts. No Member shall be required to pay to
the Company or to any Member any deficit in such Member's Capital Account, upon
dissolution or otherwise.
6.6 Section 704(c) Allocations. For Federal income tax purposes, all
items of income gain, loss, deduction or credit shall be allocated to the
Members as provided herein; provided, however, that if the Book Value (as
hereinafter defined) of any asset differs from its adjusted basis for tax
purposes, then items of income, gain, loss, deduction or credit, for tax
purposes, shall be allocated among the Members in a manner determined by the
Managing Member that takes account of the variation between the adjusted basis
of the property for tax purposes and its Book Value in any manner permitted
under Section 704(c) of the Code and the regulations promulgated thereunder. For
purposes of this Agreement, "Book Value" of an asset shall mean the value of an
asset on the books and records of the Company, except that the initial Book
Value of an asset contributed to the Company shall be the amount credited to the
Capital Account of the contributing Member with respect to such contribution.
ARTICLE 7
BOOKS, RECORDS, REPORTS AND ACCOUNTS
7.1 Books and Records. At all times during the continuance of the
Company, the Managing Member shall keep or cause to be kept full and true books
of account, in which shall be entered fully and accurately each transaction of
the Company. The Company shall keep its books and records on the same method of
accounting employed for tax purposes. The fiscal year of the Company shall be
the calendar year. The Managing Member shall also cause to be prepared and filed
all Federal, state and local tax returns required of the Company.
7.2 Retention of Books and Records.
7.2.1 The Company shall continuously maintain at its principal
place of business set forth in Section 1.5:
(A) A current list of the full name and last known business
or residence address of each Member together with the contribution and the share
in profits and losses of each Member;
(B) A copy of the Articles of Organization of the Company and
all certificates of amendments thereto, together with executed copies of any
powers of attorney pursuant to which any such certificate has been executed;
(C) Copies of the Company's Federal, state and local income
tax or information returns and reports, if any, for the six most recent taxable
years;
(D) Copies of this Agreement and all amendments thereto;
years;
(E) Financial statements of the Company for the six most
recent fiscal years;
(F) The Company's books and records for at least the current
and past three fiscal years;
(G) Such additional books and records as are necessary for
the operation of the Company.
7.2.2 Any records maintained by the Company in the regular course
of its business may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, micrographics, or any other information storage device,
provided that the records so kept can be converted into clearly legible written
form within a reasonable period of time.
7.3 Members' Rights Regarding Books, Records, and Tax Information.
7.3.1 Each Member has the right upon reasonable request:
(A) To inspect and copy during normal business hours, at the
Member's expense, any of the Company's records required to be kept by the
Company.
(B) To obtain a copy of the Company's Federal, state, and
local income tax or information returns for each year.
7.3.2 The Managing Member shall send to each Member within ninety
(90) days after the end of each taxable year such information as is necessary
for each Member to complete Federal and state income tax or information returns.
7.3.3 The Member and the Member's representatives shall not
divulge to any other person any confidential or proprietary data, information or
property or any trade secrets of the Company discovered in any inspection of the
Company's books and records except as required by law or by lenders.
7.4 Reports. The Managing Member shall make available an annual report
to each of the Members no later than one-hundred twenty (120) days after the
close of the fiscal year. The report shall contain a balance sheet as of the end
of the fiscal year, an income statement and a statement of Members' equity and
of changes in financial position for the fiscal year.
7.5 Bank Accounts. The Company shall establish and maintain accounts in
financial institutions (including, without limitation, national or state banks,
trust companies, or savings and loan institutions) in such amounts as the
Managing Member may deem necessary from time to time. The funds of the Company
shall be deposited in such accounts and shall not be commingled with the funds
of the Managing Member or any affiliates thereof
7.6 Goodwill. No value shall be placed for any purpose upon the
Company's name or the right to its use, or upon the goodwill of the Company or
its business. Upon termination or dissolution of the Company, neither the
Company's name, nor the right to its use, nor the goodwill of the Company, shall
be considered as an asset of the Company.
7.7 Election under Section 754 of the Cod . In the event of any
transaction described in Section 743(b) of the Code and permitted by the
provisions of this Agreement, the Company shall, upon the timely written request
of the Person succeeding to a Company interest in such transaction, make the
election provided for in Section 754 of the Code.
ARTICLE 8
WITHDRAWAL; TRANSFER OF COMPANY INTERESTS
8.1 Restriction on the Transfer of Membership Interests.
8.1.1 No member of the Company shall be entitled to Transfer all
or any part of his, her, or its membership interest in the Company except with
the prior written consent of all the other members of the Company (in the case
of the Managing Member, given with the consent of the Independent Director).
Except with respect to a Transfer by the Managing Member of its entire
Membership Interest in the Company to ▇▇ ▇▇▇▇▇ Operating Partnership, L.P.
pursuant to that certain Pledge and Security Agreement dated August , 1998 and
notwithstanding any other provision of this Agreement to the contrary, for so
long as the Loan is outstanding, (a)(i) no member of the Company may Transfer
all or any part of his, her, or its membership interest in the Company such that
the transferee owns or may own upon the occurrence of a specified event more
than a forty-nine percent (49%) interest in the Company, and (ii) such
transferee will not be admitted as a member of the Company unless, prior to any
such Transfer, an acceptable Non-Consolidation Opinion is delivered to the
lender under the Loan and to any Rating Agency; and (b)(i) no Managing Member
may Transfer all or any part of its membership interest in the Company, and such
transferee will not be admitted as a member or the Managing Member of the
Company, unless such transferee is a Single Purpose Entity and, (ii) prior to
any such Transfer, an acceptable Non-Consolidation Opinion is delivered to the
Lender and to any Rating Agency. Subject to compliance with all applicable
provisions of this Section 8.1, the Person to whom such Transfer of all or any
part of a Member's Membership Interest is made shall be an Assignee of such
interest but shall not be a Substitute Member unless admitted as a Substitute
Member in accordance with Section 8.1.2.
8.1.2 The Person to whom a Transfer is made as described in
Section 8.1.1 shall have the right to become a Substitute Member only if (i) the
Member making such Transfer grants the transferee the right to be a Substitute
Member (which grant (subject to the following clause (ii)) is hereby permitted)
and (ii) such admission as a Substitute Member is consented to by all of the
Members and all members of the Board of Directors (as hereinafter defined),
which consent may not be unreasonably withheld.
8.1.3 The Company shall not recognize for any purpose any
purported Transfer of all or part of the Member's Membership Interest or any
right or interest appertaining thereto unless and until the Company has received
a document (i) executed by both the Member effecting the Transfer and the Person
acquiring such Membership Interest or part thereof, (ii) including the notice
address of any Person to be admitted to the Company as a Substitute Member and
such Person's agreement to be bound by this Agreement in respect of the
Membership Interest or part thereof being obtained, (iii) setting forth the
Membership Interest of the parties to the Transfer after the Transfer, and (iv)
containing a warranty and representation that the Transfer was made in
accordance with this Agreement and all applicable laws and regulations. Each
Transfer and, if applicable, admission complying with the provisions of this
Section 8.1 is effective as of the date of the document described in this
Section 8.1.3. but only if the other requirements of this Section 8.1 have been
met. As a further condition to the admission of any Substitute Member, as
provided in this Article, the person so to be admitted shall execute and
acknowledge such instruments, in form and substance reasonable satisfactory to
the Managing Member, as the Managing Member may deem necessary or desirable to
effectuate such admission and to confirm the agreement of the Person to be
admitted as a Substitute Member to be bound by all of the covenants, terms and
conditions of this Agreement, as the same may have been amended.
8.1.4 Any person to be admitted as a Member pursuant to the
provisions of this Agreement shall, as a condition to such admission as a
Member, pay all reasonable expenses in connection with such admission as a
Member, including, but not limited to, the cost of the preparation, filing and
publication of any amendment to this Agreement and/or Articles of Organization
of the Company which the Managing Member deems necessary or desirable in
connection with such admission.
8.1.5 Any Transfer or other disposition in contravention of any of
the provisions of this Article 11 hereof shall be void and ineffective and shall
not bind or be recognized by the Company.
8.2 Withdrawal: Death or Incapacity Further Conditions.
8.2.1 Except as otherwise provided in this Agreement, a Member
does not have the right or power to withdraw from the Company as a Member.
8.2.2 Notwithstanding anything to the contrary contained herein,
the Managing Member may not resign or otherwise be removed as a member of the
Company or the Managing Member until and unless a member of the Company that is
a Single Purpose Entity is appointed to act as Managing Member and to hold the
Managing Member's membership interest and until the delivery of an acceptable
Non-Consolidation Opinion to the Lender and to any Rating Agency concerning, as
applicable, the new Managing Member and its respective, equity owners.
8.2.3 A Member shall not cease to be a Member as a result of such
Member becoming a Bankrupt Member.
8.2.4 In the event of the death, dissolution, adjudication of
incompetency, or bankruptcy of a Member, the legal representative of such
Member, or the successor in interest of such Member, shall succeed only to the
right of such Member to receive allocations and distributions hereunder, and may
be admitted to the Company as a Member in the place and stead of the deceased,
dissolved, incompetent, or bankrupt Member in accordance with this Article 11
upon the consent of all of the Members, which consent may be withheld or
delayed, but shall not be deemed to be a Substitute Member unless so admitted.
In addition, upon the bankruptcy of a Member, the other Members (in such
proportions as they may agree among themselves) shall be entitled, upon notice
to the bankrupt member given within twenty (20) business days of notice of such
bankruptcy, to purchase the interest of the bankrupt Member for an amount equal
to the fair market value of such interest (taking into account minority
discounts, control premiums and other factors impacting the value of such
interest), which fair market value shall be payable in ten equal annual
installments with interest thereon at the "applicable federal rate" as
determined pursuant to section 1274(d) of the Internal Revenue Code of 1986, as
amended. The closing of such purchase shall take place no later than one hundred
twenty (120) days following notice to the bankrupt Member as aforesaid.
8.2.5 Notwithstanding any other provision of this Agreement, the
Transfer of the Membership Interest, or any right, title or interest therein or
thereto, will not be permitted if the Membership Interest sought to be
Transferred of, when added to the total of all other Membership Interests
Transferred of within the period of twelve (12) consecutive months ending with
the proposed date of the Transfer, results in a termination of the Company under
Section 708 of the Code.
8.2.6 In the event of a permitted Transfer of all or part of a
Member's Membership Interest in the Company, the Company shall, if requested,
file an election in accordance with Section 754 of the Code or a similar
provision enacted in lieu thereof, to adjust the basis of the property of the
Company. The Member requesting said election shall pay all costs and expenses
incurred by the Company in connection therewith.
ARTICLE 9
DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY
9.1 Dissolution. The Company shall be dissolved and its affairs wound
up only upon (i) the written consent of all the Members and all members of the
Board of Directors, including, without limitation, the Independent
Representative and (ii) the entry of a decree of judicial dissolution under
ss.702 of the Law. The Company shall not be dissolved as a result of there no
longer being any Members of the Company if the Company is continued in
accordance with ss. 701 of the Law. Notwithstanding anything in this Agreement
to the contrary, the Company shall not be dissolved as long as the Loan is
outstanding.
9.2 Liquidation and Termination. Upon dissolution of the Company, the
Managing Member shall appoint one or more Persons, which appointee or appointees
may include themselves, to act as a liquidator. The liquidator shall proceed
diligently to wind up the affairs of the Company and make final distributions as
provided herein and in the Law. The costs of liquidation shall be borne as a
Company expense. Until final distribution, the liquidator shall continue to
operate the Company properties with all of the power and authority of the
Managing Member. A reasonable time shall be allowed for the orderly liquidation
of the assets of the Company and the discharge of liabilities to creditors so as
to enable the liquidator to minimize any losses resulting from liquidation. The
liquidator, as promptly as possible after dissolution and again after final
liquidation, shall cause a proper accounting to be made by a nationally
recognized firm of certified public accountants of the Company's assets,
liabilities, and operations through the last day of the calendar month in which
the dissolution occurs or the final liquidation is completed, as applicable, and
shall apply the proceeds of liquidation as set forth in the remaining sections
of this Article 9.
9.3 Payment of Debts. The assets shall first be applied to the
satisfaction of the liabilities of the Company (including any loans or advances
that may have been made by Members to the Company and the expenses of
liquidation).
9.4 Remaining Distribution. The remaining assets shall then be
distributed to the Members in accordance with the Members' positive capital
account balances, after making the adjustments for allocations under Article VI
and Exhibit B hereof.
9.5 Reserves. Notwithstanding anything to the contrary in Section 9.4,
the liquidator may retain such amount as it deems necessary as a reserve for any
contingent, conditional or unmatured liabilities or obligations of the Company,
which reserve, after the passage of a reasonable period of time as determined by
the liquidator, shall be distributed in accordance with this Article 9.
9.6 Final Accounting. Each of the Members shall be furnished with
a statement prepared by the Company's certified public accountants, which shall
set forth the assets and liabilities of the Company as of the date of the
complete liquidation. Upon compliance by the liquidator with the foregoing
distribution plan, the liquidator shall execute and cause to be filed a
Certificate of Cancellation and any and all other documents necessary with
respect to termination and cancellation of the Company under the Law. The
existence of the Company as a separate legal entity shall continue until the
filing of its Certificate of Cancellation in accordance with the Law.
ARTICLE 10
POWER OF ATTORNEY
Section 10.1 Power. Each member irrevocably constitutes and appoints
the Managing Member as his true and lawful attorney in his name, place and ▇▇▇▇▇
to make, execute, swear to, acknowledge, deliver and file:
(a) Any certificates or other instruments which may be required to
be filed by the Company under the laws of the State of New York or of any other
state or jurisdiction in which the Managing Member shall deem it advisable;
(b) Any documents, certificates or other instruments, including
but not limited to, any and all amendments and modifications of this Agreement
or of the instruments described in Section 13.1(a) which may be required or
deemed desirable by the Managing Member to effectuate the provisions of any part
of this Agreement, and, by way of extension and not in limitation, to do all
such other things as shall be necessary to continue and to carry on the business
of the Company; and
(c) All documents, certificates or other instruments which may be
required to effectuate the dissolution and termination of the Company, to the
extent such dissolution and termination is authorized hereby. The power of
attorney granted hereby shall not constitute a waiver of, or be used to avoid,
the rights of the Members to approve certain amendments to this Agreement
pursuant to Section 13.1 or be used in any other manner inconsistent with the
status of the Company as a limited liabilit y company or inconsistent with the
provisions of this Agreement.
Section 10.2 Survival of Power. It is expressly intended by each Member
that the foregoing power of attorney is coupled with an interest, is irrevocable
and shall survive the death, retirement or adjudication of incompetency of such
Member. The foregoing power of attorney shall survive the delivery of an
assignment by the Member of its entire interest in the Company, except that
where an assignee of such entire interest has become a Substitute Member, then
the foregoing power of attorney of the assignor Member shall survive the
delivery of such assignment for the sole purpose of enabling the Managing Member
to execute, acknowledge and file any and all instruments necessary to effectuate
such substitution.
ARTICLE 11
SEPARATE LEGAL ENTITY
11.1 Separate Legal Entity.
11.1.1 The Company shall respect and appropriately document the
separate and independent nature of its activities, as compared with those of any
other Person, take all reasonable steps to continue its identity as a separate
legal entity, and make it apparent to third Persons that the Company is an
entity with assets and liabilities distinct from those of any other Person.
Without limiting the foregoing, the Company shall: (i) pay or cause to be paid
its own liabilities and expenses, including the salaries of its own employees,
only out of its own funds and assets; (ii) observe or cause to be observed all
applicable limited liability company formalities, including, without limitation,
requiring its Members and officers, if any, to duly authorize all actions of the
Company to the extent required by New York law; (iii) allocate or cause to be
allocated fairly and reasonably any overhead for any office space shared with an
Affiliate or any other Person and services performed by any employee of any
Affiliate or other Person; (iv) use separate stationery, invoices, business
forms and checks bearing its own name (or a name franchised or licensed to it by
an entity other than an Affiliate of the Company); (v) maintain or cause to be
maintained correct and complete accounts, books, records, financial statements,
accounting records, and other entity documents separate from any other Person
and file its own separate tax returns, except when consolidated or combined tax
returns are required or permitted by applicable law; (vi) hold its assets in its
own name; (vii) conduct its business, enter into contracts and transactions and
otherwise act in its own name in a manner designed to inform third parties of
the identity of the entity with which they are dealing; (viii) maintain arm's
length relationships with each of its Affiliates and enter into transactions
with its Affiliates only on commercially reasonable terms; (ix) hold itself out
and identify itself as a separate and distinct entity under its own name and not
as a division or department of any other Person; (x) correct any known
misunderstanding regarding its name or separate identity; (xi) remain qualified
to do business under the laws of the state of its formation; (xii) remain
solvent and maintain adequate capital for the normal obligations reasonably
foreseeable in a business of its size and character and in light of its
contemplated business operations; (xiii) maintain separate from any other Person
its books, records, resolutions and agreements as official records; (xiv)
maintain separate financial statements, showing its assets and liabilities
separate and apart from those of any other Person and not have its assets listed
on the financial statements of any other Person, except as required by generally
accepted accounting principles; provided, however, that any such consolidated
financial statements shall contain a note indicating that the separate assets
and liabilities of the Company have been consolidated therein and that the
Company has separate financial statements; (xv) enter into contracts and other
transactions only to the extent that the Company intends to be responsible or
liable for such contract or other transaction and in a manner designed to inform
the other party or parties thereto of the identity of the entity that is
responsible and liable therefor; (xvi) cause its financial statements to contain
a note describing the transactions contemplated by the Loan Documents and to
state that, except to the extent that the Company may make distributions to its
owners permitted by the Loan Documents, the Company's assets are not available
to pay the creditors of any Affiliate of the Company; (xvii) use solely its own
name for purposes of obtaining any required governmental registrations,
licenses, and permits necessary to the conduct of its business; (xviii) maintain
its bank account or bank accounts in its own name, separate and apart from any
bank account or cash concentration account or system of any other Person; and
(xix) cause any consolidated financial statements that include the Company's
assets to state expressly that the assets of the Company are not available to
pay the creditors of any other Person. Failure to comply with any of the
foregoing covenants shall not affect the status of the Company as a separate
legal entity.
11.1.2 The Company shall not: (i) own any property other than
incidental personal property necessary for or relating to the purpose of the
Company; (ii) engage in any activity other than activity authorized by this
Agreement; (iii) commingle or permit to be commingled its assets with those of
any other Person; (iv) identify the Members or any of their Affiliates as a
division or part of it; (v) pledge its assets for the benefit of any other
Person; (vi) assume, guaranty or become obligated for the debts of or hold out
its assets or credit as being available to satisfy the obligations of any other
Person; (vii) acquire obligations or securities of any of its Affiliates or
owners, including its partners; (viii) accept any loans from any other Person,
make any loans to any other Person or buy or hold evidences of indebtedness
issued by any other Person (other than cash or investment grade secunties); (ix)
incur any indebtedness other than liabilities incurred in the ordinary course of
business relating to the Company's purpose; (x) enter into or be a party to any
transaction with its Members or Affiliates except in the ordinary course of its
business when the transaction has legitimate business purposes for all parties
and is on terms which are commercially reasonable and are no less favorable to
it and to its Members or Affiliates, as the case may be, than would be obtained
in a comparable arms-length transaction with an unrelated third party; (xi) take
any action not authorized by the Managing Member pursuant to this Agreement;
(xii) have any obligation to indemnify the Members, unless such an obligation is
fully subordinated to the Loan and will not constitute a claim against it in the
event that cash flow in excess of the amount required to pay the Loan is
insufficient to pay that obligation; (xiii) transfer any assets without fair
consideration and proper documentation; (xiv) transfer any assets with the
intent to hinder, delay or defraud creditors; (xv) permit any Affiliate of the
Company to have, or to hold itself out as having, any place of business or
operations at the site of any real property owned by the Company or to have any
employees at such site; (xvi) permit any Affiliate of the Company (other than
solely as an officer, partner, manager, member, director or shareholder, as the
case may be, thereof) to make decisions with respect to the ordinary course of
the business and affairs of the Company; (xvii) hold itself out to third parties
in a manner as to be confused with any Affiliate or any other Person in
connection with the Company's transactions with third parties; (xviii) seek the
dissolution or winding up, in whole or in part, of the Company, except pursuant
to Section 7.3(b) of this Agreement; (xix) permit any contract or other
transaction relating to its business to be entered into other than clearly in
the name of the entity that is intended to be responsible and liable for that
contract or transaction in a manner designed to inform the other parties to the
transaction of the identity of the entity that is responsible and liable; (xx)
incur any debt on the basis of the assets or creditworthiness of any other
Person; (xxi) require, as a routine matter, the guaranty of its obligations by
any other Person to enable it to operate or transact business; or (xxii) file or
consent to the filing of any petition to take advantage of any applicable
insolvency, bankruptcy, liquidation or reorganization statute, or make an
assignment for the benefit of creditors, except pursuant to Section 7.3(b) of
this Agreement.
ARTICLE 12
FURTHER DOCUMENTS; CONSENT
12.1 Execution by Members. At any time, upon the request of the
Managing Member, each Member shall execute, acknowledge and swear to any
certificate required by the Law, any amendment to or cancellation thereof
required by law, and any certificate or affidavit of fictitious firm name, trade
name or the like (and any amendments or cancellations thereof) required by law
to carry out the purposes of, and which are consistent with, the purposes of
this Agreement; and the Managing Member shall cause to be filed of record all
such certificates and instruments as shall be required so to be filed.
12.2 Method of Giving Consent. Any consent of the Member required
by this Agreement may be given by a written consent, given by the consenting
Member and received by the Person soliciting such consent. Any consent of a
member of the Board of Director's required by this Agreement may be given by a
written consent given by the consenting member of the Board of Directors and
received by the Person soliciting such consent.
ARTICLE 13
MISCELLANEOUS
13.1 Authority to Amend. This Agreement may only be amended with
approval of the Managing Member and all members of the Board of Directors.
Notwithstanding anything in this Agreement to the contrary, the following
provisions of this Agreement may not be amended as long as the Loan is
outstanding: Sections 2.3, 12.1, 7.1, 7.2, and 7.3 and this Article 13 and
Article 14.
13.2 Choice of Law. This Agreement shall be governed any construed in
accordance with the laws of the State of New York, applicable to agreements made
and to be performed entirely within such State, without regard to principles of
conflict of laws.
13.3 Choice of Forum. The parties agree that none shall commence any
litigation against the other arising out of this Agreement or the termination
thereof except in a court located in the State of New York. Each party consents
to jurisdiction over it by and exclusive venue in such a court.
13.4 Notices. Any notice or other cornmunication required or which may
be given pursuant to this Agreement shall be in writing and shall be delivered
personally, by overnight courier, sent by facsimile with a copy sent
contemporaneously by mail, or sent by certified, registered, or express mail,
postage prepaid, to the relevant address set forth for in the heading to this
Agreement. Any such notice or communication shall be deemed given when so
delivered personally, faxed, or if mailed or sent by overnight courier, on the
earlier of the date of receipt or two days after the date of mailing or sending.
13.5 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes and merges all prior and
contemporaneous agreements and discussions between the parties. Any and all
representations or agreements by any agent or representative of either party not
contained in this Agreement shall be null, void and of no effect. This Agreement
may not be changed in any way, except as provided in Section 10. 1 of this
Agreement.
13.6 Severability. If for any reason any provision of this Agreement,
including but not limited to, any provision relating to termination of this
Agreement, shall be deemed by a court of competent jurisdiction to be legally
invalid or unenforceable in any jurisdiction to which it applies, the validity
of the remainder of the Agreement shall not be affected and such provision shall
be deemed modified to the minimum extent necessary to make such provision
consistent with applicable law, and, in its modified form, such provision shall
then be enforceable and enforced.
13.7 Binding Agreement. This Agreement shall be binding upon the
parties and shall inure to the benefit of the undersigned parties and, except to
the extent provided herein, to their respective heirs, executors, personal
representatives, successors and lawful permitted assigns. Any reference in this
instrument to any party or Member is made, such reference shall be deemed to
include a reference to the successors and assigns of such party or Member.
13.8 Waiver of Action for Partition. Each of the parties to this
Agreement irrevocably waives and forfeits during the term of the Company any and
all right that it may have to institute or maintain any action for partition
with respect to any property of the Company.
13.9 Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders, and the singular shall include the plural, and vice versa, as the
context may require.
13.10 Captions. The captions of this Agreement are for convenience and
reference only and in no way define, limit or describe the scope or intent of
this Agreement nor affect it in any way.
13.11 Counterparts. This Agreement may be executed through the use
of separate signature pages or in any number of counterparts, and each of such
signature pages or counterparts shall, for all purposes, constitute one
agreenment binding on a the parties, notwithstanding that all parties are not
signatories to the same counterpart.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound,
have executed this Agreement of the day and year first above written.
[SIGNATURES]
Exhibit A
---------
Member Capital Contribution
----- --------------------
[Macklowe Entity] $
Broadway $
Exhibit N
---------
Intentionally Omitted
Exhibit O-1
Note
----
Exhibit O-1
-----------
DEMAND NOTE
$[51% of Green Closing Obligation] August_, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and AZIW Inc.,
a New York corporation, jointly and severally, both having an address at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Maker"), PROMISES TO PAY ON DEMAND
to the order of ▇▇ ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership having an address at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Lender"), its successors and assigns, $___________, or so much thereof as may
be outstanding from time to time, together with interest thereon at nine-percent
(9%) per annum.
Maker hereby waives diligence, demand, presentment for payment,
protest, dishonor, nonpayment, default, and notice of any and all of the
foregoing.
In the event that this Demand Note shall not be paid when due and
payable (whether upon maturity, by acceleration or otherwise), the Maker shall
further be liable for and shall pay to Lender all reasonable collection costs
and expenses incurred by Lender, including reasonable attorneys' fees and
disbursements.
IN WITNESS WHEREOF, Maker has duly executed this Demand Note as of the
day and year first above written.
MAKER:
____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
AZIW Inc.
By:_________________________
Name:
Title:
Exhibit 0-2
-----------
PLEDGE AND SECURITY AGREEMENT
------------------------------
THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated this _ day
of August, 1998, is made by AZIW INC., a New York Corporation and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(collectively, "Assignor"), to and for the benefit of ▇▇ ▇▇▇▇▇ Operating
Partnership, L.P., a Delaware limited partnership ("Assignee").
R E C I T A L S:
A. Assignee has agreed, at the request of Assignor, to make a loan (the
"Loan") to Assignor, which Loan will be evidenced by that certain Demand Note,
of even date herewith, executed by Assignor and payable to the order of Assignee
in the original principal amount of $ [51% of Green Closing Obligation] (such
note, as it may hereafter be renewed, extended, supplemented, increased or
modified and in effect from time to time, and all other notes given in
substitution therefore, or in modification, renewal, or extension thereof, in
whole or in part, is herein called the "Note").
B. In connection with the Note, and as a condition precedent to the
making of the Loan, Assignee is requiring that Assignor execute this Agreement,
pursuant to which Assignor is pledging its Membership Interest (as hereinafter
defined) in AZIW LLC ("AZIW"), a New York limited liability company, as security
for the Loan.
NOW, THEREFORE, in consideration of the sum of $10.00 and for other
good and valuable consideration received by Assignor, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, covenant and agree as follows:
1. Certain Definitions. In addition to the words and terms defined
elsewhere in this Agreement, the following words and terms shall have the
following meanings:
a. "Collateral" shall mean, collectively, the Membership Interest
and Proceeds.
b. "Event of Default" shall mean the occurrence of any one or more
of the following: (i) Assignor's failure to pay when due any portion of the
Note; (ii) default (beyond any applicable grace or notice period) in the
performance by Assignor of any covenant hereunder; (iii) any inaccuracy, as of
the date hereof, in any of the representations or warranties made by Assignor
hereunder; or (iv) (A) application for or consent to the appointment of a
receiver, trustee or liquidator of all a substantial part of their respective
assets by either Assignor or AZIW, (B) a general assignment for the benefit of
creditors by either Assignor or AZIW, or (C) the filing of a case by or against
Assignor or AZIW under federal bankruptcy law, or any other federal or state
insolvency law.
c. "Obligations" shall mean (i) all obligations and indebtedness
of Borrower under the Note, whether of principal, interest, fees, expenses or
otherwise now existing or hereafter contracted or incurred, and all extensions,
renewals, refinancings, refundings, increases or decreases in the amount of such
obligations and indebtedness in whole or in part; (ii) all costs and expenses
incurred by Assignee in the collection of any of the obligations or indebtedness
described in (i) above, including without limitation reasonable in-house and
outside counsel attorneys' fees and legal expenses; and (iii) all amounts
payable by Assignor to Assignee hereunder.
d. "Operating Agreement" shall mean that certain Operating
Agreement of AZIW, dated _________ (as amended from time to time).
e. "Membership Interest" shall collectively mean all of Assignor's
interests as a member (now owned or hereinafter acquired) in AZIW, together with
all proceeds, rents, income, increases, profits and related rights, all sums or
distributions (whether made in cash, tangible or intangible property of any kind
or character, or otherwise) due or to become due to Assignor, including all
profits and income, and the accounts thereof, all surplus and capital, and the
accounts thereof, all rights (if and to the extent provided in the Operating
Agreement) in specific property, including, if applicable, any right with the
other members to possess the same for limited liability company purposes, the
rights, but not the duty, to participate in the management and administration of
the AZIW's business and affairs, to require any information and account of
limited liability company transactions and all other matters relating to the
business and financial condition of AZIW, to inspect the books and records of
the limited liability company, including federal, state and local income tax
returns, and any and all other rights, title and interest of Assignor in AZIW
and under the Operating Agreement, whether now existing or hereafter acquired or
created, together with all products, proceeds, substitutions and additions of or
to any of the foregoing.
f. "Proceeds" shall mean whatever is received when a Membership
Interest or Proceeds or any portion of either are sold, exchanged, collected or
otherwise disposed of, both cash and non-cash, and all payments or distributions
paid or payable on account, of the Membership Interest.
2. Security. As security for the full and timely payment of the
Obligations in accordance with the terms hereof and of the Note, Assignor agrees
that Assignee shall have, and hereby grants to and creates in favor of Assignee,
a security interest, under the New York Uniform Commercial Code (as in effect on
the date hereof and as amended from time to time hereafter, the "Code"), in and
to all of Assignor's right, title and interest, whether now existing or
hereafter arising, created or acquired, in, to and under the Collateral. In
connection with the granting of such a security interest, Assignor hereby
collaterally assigns, transfers and sets over unto Assignee, all of Assignoes
right, title and interest, whether now existing or hereafter arising, created or
acquired in, to and under the Collateral.
3. Limitations on Assignee's Obligations Under the Partnership
Agreement. Assignor acknowledges and agrees that this Agreement shall not in any
way obligate Assignee or any of its successors and assigns to perform any of the
now existing or hereafter accruing obligations of Assignor under the Operating
Agreement or otherwise in respect of the Collateral and Assignor agrees to
perform any and all obligations (including the payment of any and all
liabilities or assessments) of Assignor under the Operating Agreement, whether
heretofore or hereafter accruing or arising, all with the same effect as though
this Agreement had not been executed or delivered by Assignor.
4. Assignee Has Rights and Remedies of a Secured Party. In
addition to all rights and remedies given to Assignee by this Agreement, the
Note or any other instrument executed in connection with the Loan, Assignee
shall have all the rights and remedies of a secured party under the Code.
5. Provisions Applicable to the Collateral. At all times during the
term of this Agreement:
a. Assignor shall keep accurate and complete books and records
concerning the Collateral owned by it;
b. Assignee shall have the right to review the books and records
of Assignor pertaining to the Collateral and to copy the same and make excerpts
therefrom all at such reasonable times and as often as Assignee may reasonably
request;
c. Assignor shall maintain and keep its principal place of
business at the addresses more particularly set forth in Section 12(f) below,
and at no other location, without giving Assignee thirty (30) days' prior
written notice of any address change;
d. promptly upon request of Assignee from time to time, Assignor
shall furnish Assignee with such information concerning the Collateral as
Assignee may reasonably request, including copies of all notices and
communications with respect to AZIW or its properties, assets, operations or
business which may be sent by Assignor to, or received from AZIW;
e. prior to the occurrence of any Event of Default, Assignor shall
have the right to exercise all voting and other rights under or pertaining to
the Collateral so long as such rights and privileges are exercised in a manner
which does not cause a violation of or default hereunder or under the Note;
f. Assignor shall not authorize or consent to any amendment,
revision or modification of the Operating Agreement without the prior written
consent of Assignee;
g. Assignor shall not permit, without the prior written consent of
Assignee: (i) any new member to be admitted to AZIW, (ii) any conversion of any
portion of the Membership Interest, or (iii) any transaction which would have
the effect of diluting the Membership Interest. Any violation of the terms
hereof shall, at the option of Assignee, constitute a default hereunder, and
Assignee shall have no obligation to allege or show any impairment of its
security thereby and may pursue any legal or equitable remedies for default
without such allegation or showing;
h. Assignor has and will have good and marketable title to the
Collateral from time to time owned or acquired by it, free and clear of all
liens, encumbrances and security interests, except security interests granted
toand created in favor of Assignee. Assignor will defend such title against the
claims and demands of all persons whomsoever;
i. Assignor will not, without the prior written consent of
Assignee, (i) borrow against the Collateral from any person, firm or corporation
other than Assignee, (ii) create, incur, assume or suffer to exist any mortgage,
lien, charge or encumbrance on, or security interest in, or pledge of or
conditional sale or other title retention agreement with respect to any of the
Collateral, except the security interest created hereunder, or sell or transfer
any of the Collateral or any interest therein, (iii) permit any levy or
attachment to be made against any of the Collateral except any levy or
attachment relating to this Agreement, or (iv) permit any financing statement to
be on file with respect to any of the Collateral, except financing statements in
favor of Assignee;
j. Assignor will faithfully preserve and protect Assignee's
security interest in the Collateral and will, at its own cost and expense, cause
said security interest to be perfected and continue perfected, and for such
purpose Assignor will from time to time at the request of Assignee execute and
file or record, or cause to be filed or recorded, such instruments, documents
and notices, including, without limitation, financing statements and
continuation statements, as Assignee may deem reasonably necessary or advisable
from time to time in order to perfect and continue perfected said security
interest. Assignor will do all such other acts and things and execute and
deliver all such other instruments and documents, including, without limitation,
further security agreements, pledges and assignments, as Assignee may reasonably
deem necessary or advisable from time to time in order to perfect, preserve and
continue as perfected the priority of said security interest as a security
interest in the Collateral prior to the rights of all other persons therein or
thereto except for Assignee;
k. Assignor does hereby irrevocably constitute and appoint
Assignee its true and lawful attorney, coupled with the interest created hereby,
with full power of substitution, for it and in its name, place and stead, upon
the occurrence of an Event of Default to ask, demand, collect, receive, receipt
for, ▇▇▇ for, compound and give acquittance for any and all sums or properties
which may be or become due, payable or distributable in connection with or with
respect to the Collateral, with full power to settle, adjust or compromise any
claim thereunder or therefor as fully as Assignor could itself do, and to
endorse or sign the name of Assignor on all negotiable instruments and any other
commercial paper given in payment or in part payment thereof, and all documents
of satisfaction, discharge or receipt required or requested in connection
therewith, and in its discretion to file any claim or take any other action or
proceeding, either in its own name or in the name of Assignor, or otherwise,
which Assignee may deem necessary or appropriate to collect or otherwise realize
upon any and all of the Collateral, or which may be necessary or appropriate to
protect and preserve the right, title and interest of Assignee in and to such
Collateral and the security intended to be afforded hereby; and
1. On the date hereof, Assignor shall execute and deliver a letter
in the form of Exhibit A to AZIW and shall cause AZIW to execute and deliver a
letter in the form of Exhibit B to Assignee.
6. Representations and Warranties. Assignor represents and warrants to
Assignee as follows:
a. AZIW is a valid and subsisting limited liability and is duly
organized and existing under the law of the State of New York that the Operating
Agreement is and remains in full force and effect, and that a true and correct
copy of the Operating Agreement has been delivered to Assignee;
b. AZIW Inc. is a valid and subsisting corporation, duly organized
and existing under the law of the State of New York, and has full right, power
and authority to enter into this Agreement;
c. Assignor is the owner of 51 % of the membership interests in
AZIW and is entitled to the rights and benefits thereof as set forth in the
Operating Agreement;
d. Neither Assignor nor AZIW has made any assignment for the
benefit of creditors and there has not been filed any petition in bankruptcy (or
any other commencement of a bankruptcy or similar proceeding) by or against
Assignor or AZIW under any applicable bankruptcy, insolvency, reorganization or
similar law;
e. There is no agreement in effect with respect to either Assignor
or AZIW which would in any manner impair or prohibit the terms of this Agreement
or the pledge and assignment of the Collateral as provided hereunder;
f. Neither the execution and delivery of this Agreement nor
compliance with the terms and provisions hereof on the part of Assignor will
violate any statute, license or regulation of any governmental authority or will
breach, conflict with or result in a breach of any of the terms, conditions or
provisions of any agreement or instrument to which Assignor or AZIW is or may be
bound, or constitute a default thereunder, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon or
give to others any interest or rights, including rights of termination or
cancellation, in or with respect to, any of Assignor's or AZIW's property,
assets, contracts, licenses or business; and below.
g. Assignor's principal place of business is as set forth in
Section 12(f) below.
The representations and warranties set forth in this Section 6
shall survive the execution, delivery and performance of this Agreement.
7. Events of Default.
a. In the event that any Event of Default shall occur, then and in
such event, Assignee shall have such rights and remedies in respect to the
Collateral or any part thereof as are provided by the Code and such other rights
and remedies in respect thereof which it may have at law or in equity or under
this Agreement, including, without limitation, the right to acquire the
Membership Interest pursuant to an assignment of such Membership Interest, and,
in such event, the party acquiring same shall have the right, but not the
obligation, to be admitted as a member in AZIW with respect to such Membership
Interest, and the right to take possession of the same and to sell all or any
portion of the Collateral at public or private sale, after ten (10) days prior
written notice, at such place or places and at such time or times and in such
manner and upon such terms, whether for cash or on credit, as Assignee in its
sole discretion may determine. Assignee shall apply the Proceeds of any such
sale and any Proceeds otherwise received by Assignee first to the payment of the
reasonable costs and expenses incurred by Assignee in connection with such sale
or collection, including, without limitation, reasonable attorneys' fees and
legal expenses, and second to the payment of all Obligations then due, whether
on account of principal or interest or otherwise, as Assignee in its sole
discretion may elect.
b. Assignee may pursue the aforementioned remedies without first
proceeding under any of other remedies available under any other documents held
by Assignee, and Assignee may resort to any remedies, at the same or different
times, as Assignee may deem advisable in its sole discretion.
c. Assignee shall have the right at any time after an Event of
Default has occurred (i) to take over and direct collection of the Collateral,
and (ii) to take control of the Collateral. Assignee shall have no liability
whatsoever with respect to any action taken by Assignee under this subparagraph
c. except for its gross negligence or willful misconduct.
8. Proceeds. All payments and distributions on account of the
Collateral (including, without limitation, payments and distributions that
result from any financing or refinancing of the property owned by AZIW or from
the sale, disposition, taking or loss (including, but not limited to, the
proceeds from any eminent domain proceeding or conveyance in lieu thereof or
from casualty insurance) of the property owned by AZIW or any part thereof
(collectively, the "Distributions") and all other Proceeds shall be paid
directly to Assignee (and Assignor hereby authorizes and directs AZIW to pay all
Distributions and Proceeds to Assignee), and Assignor shall take all actions
necessary to ensure that all Proceeds and Distributions (including payments and
distributions on account of the Interest) are made directly to Assignee.
Assignor acknowledges and agrees that the term Distributions shall include any
and all payments made by AZIW to Assignor, including, without limitation, any
payments on account of any loans made by Assignor to AZIW. All sums paid to
Assignee hereunder shall be applied by Assignee to the Obligations in such order
and manner as Assignee shall determine in its sole and absolute discretion.
Assignor shall cause all Proceeds collected by it to be delivered to Assignee
forthwith upon receipt, in the original form in which received, bearing such
endorsements or assignments by Assignor as may be necessary to permit collection
thereof by Assignee. Assignor hereby irrevocably authorizes and empowers
Assignee, its officers, employees and authorized agents to endorse and sign the
name of Assignor on all checks, drafts, money orders or other media of payment
so delivered and such endorsements or assignments shall, for all purposes, be
deemed to have been made by Assignor prior to any endorsement or assignment
thereof by Assignee. Assignee may use any convenient or customary means for the
purpose of collecting such checks, drafts, money order or other media of
payment.
9. Limitation on Liability of Assignee. Neither Assignee nor any of its
officers, directors, employees, agents or counsel shall be liable for any action
lawfully taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their gross negligence or willfal misconduct.
Assignor hereby agrees to indemnify Assignee and to hold Assignee
harmless against and with respect to any and all liability, deficiency, damage,
cost or expense resulting from any misrepresentation, material omission, breach
of warranty or representation or non-fulfillment of any covenant or agreement on
the part of Assignor under this Agreement, and any and all actions, suits,
proceedings, demands, assessments, judgments, costs, legal and accounting fees
and other expenses incidental to the foregoing indemnification.
10. Amendments. The provisions of this Agreement may be waived,
modified or amended only with the written consent of Assignor and Assignee. Any
waiver, permission, consent or approval of any kind or character on the part of
Assignee of any breach or default under this Agreement or of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
11. Defeasance and Assignability. Upon payment in full or other
satisfaction of the Obligations, this Agreement shall terminate and be of no
further force or effect; provided however, that any indemnity provided hereunder
shall survive such payment. Until such time, however, this Agreement shall
remain in full force and effect as security for all of the Obligations and shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. The satisfaction, or discharge, of any part,
but not the whole, of the Obligations hereby secured shall not in any way
satisfy or discharge this Agreement. This Agreement shall be binding upon and
shall inure to the benefit of Assignor and the legal representatives, heirs,
successors and assigns of Assignor, and Assignee and its successors and assigns.
Notwithstanding the foregoing, Assignor shall not assign any rights or delegate
any of his duties under this Agreement, without the prior written consent of
Assignee.
12. Miscellaneous.
a. The headings in this Agreement are for convenience of reference
only and are not part of the substance of this Agreement.
b. If any provision of this Agreement shall for any reason be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision hereof, but this Agreement shall be construed as if such
invalid or unenforceable provision had never been contained herein.
c. No delay or failure on the part of Assignee in exercising any
right, remedy, power or privilege hereunder shall operate as a waiver thereof or
of any other right, remedy, power or privilege of Assignee hereunder or under
the Note; nor shall any single or partial exercise of any such right, remedy,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights and remedies
of Assignee under this Agreement are cumulative and not exclusive of any rights
or remedies which it might otherwise have.
d. In the event of any action at law or suit in equity in relation
to this Agreement, Assignor, in addition to all other sums which it may be
required to pay, will pay all reasonable attorneys' fees and all court costs
incurred by Assignee in connection with the prosecution of such action or suit
and all other expenses of collection.
e. Should any stamp or other tax, now or hereafter become payable
with respect to this Agreement or its execution or delivery, Assignor will
promptly, following demand therefor, pay the same and hold Assignee harmless
from the cost of same.
f. All notices, demands, instructions and other communications
required or permitted to be given to or made hereunder or with respect hereto
("Notices") shall be in writing and shall be personally delivered or sent by
prepaid overnight courier providing proof of delivery or by telecopier, and
shall be deemed to be given for purposes of this Agreement in regard to personal
delivery or prepaid courier, on the day that such writing is delivered and in
regard to telecopies on the date of transmission. Notices shall be given to or
made upon the following persons at their respective addresses indicated below:
If to Assignor:
______________________
______________________
______________________
______________________
Attn:_________________
Telephone:____________
Telecopier:___________
with a copy to:
______________________
______________________
______________________
______________________
Attn:_________________
Telephone:____________
Telecopier:___________
If to Assignee:
▇▇ ▇▇▇▇▇ Operating Partnership, L.P.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
▇▇▇▇▇▇ ▇. Ivanhoe, Esq.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or telecopier number as any of the parties may from
time to time designate by written notice given as herein required. Rejection or
refusal to accept or inability to deliver because of changed addresses or
because no notice of changed address was given shall be deemed a receipt of such
notice.
If any day on which any notice, demand, instruction or other
communication is given or sent by any party hereto is not a business day, such
notice, demand, instruction or other communication shall be deemed to have been
given or sent on the business day next succeeding such non-business day. This
Section 12(f) shall not be construed in any way to affect or impair any waiver
of notice or demand provided in this Agreement or in the Note or to require
giving notice or demand in any situation or for any reason.
13. The Code shall govern the attachment, perfection and the effect of
attachment and perfection of Assignee's security interest in the Collateral, and
the rights, duties and obligations of Assignee and Assignor with respect
thereto. This Agreement shall be deemed to be a contract under the laws of the
State of New York and the execution and delivery hereof and the terms and
provisions hereof shall be governed by and construed in accordance with the laws
of said State. Unless the context otherwise requires, all terms used herein
which are defined in the Code shall have the meanings therein stated.
14. ASSIGNOR AND ASSIGNEE, BY ACCEPTANCE OF THIS AGREEMENT, HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY OR ANY
EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THIS AGREEMENT OR THE
NOTE OR IN ANY WAY RELATING TO THE LOAN (INCLUDING, WITHOUT LIMITATION, ANY
ACTION TO RESCIND OR CANCEL THIS AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING
THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE).
THIS WAIVER IS A MATERIAL INDUCEMENT FOR ASSIGNOR AND ASSIGNEE TO ENTER INTO
THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Agreement as of the day and
year first above written.
____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
AZIW Inc.
By:
Name:
Title:
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating
Partnership, L.P., its
manager
By: ▇▇ ▇▇▇▇▇ Realty Corp., its
general partner
By:_________________________________
Name:
Title:
STATE OF ____________)
) ss:
COUNTY OF ___________)
The foregoing instrument was acknowledged before me this ___ day of
August, 1998 by _______________, as _________________ of ___________, a
_____________________, on behalf of the _____________. He/she/they personally
appeared before me, is/are personally known to me or produced _______________ as
identification, and [did] [did not] take an oath.
Notary:_________________________________
[NOTARIAL SEAL] Print Name:_____________________________
Notary Public, State of_________________
My commission expires:__________________
STATE OF ____________)
) ss:
COUNTY OF ___________)
The foregoing instrument was acknowledged before me this ___ day of
August, 1998 by _______________, as _________________ of ___________, a
_____________________, on behalf of the _______________. He/she/they personally
appeared before me, is/are personally known to me or produced _________________
as identification, and [did] [did not] take an oath.
Notary:_________________________________
[NOTARIAL SEAL] Print Name:_____________________________
Notary Public, State of_________________
My commission expires:__________________
The foregoing instrument was acknowledged before me this ____ day of
August, 1998 by _____________, as _________________________ of ▇▇ ▇▇▇▇▇ Realty
Corp., the general partner of ▇▇ ▇▇▇▇▇ Operating Partnership, L.P., a Delaware
limited partnership, on behalf of the partnership. He/she/they personally
appeared before me, is/are personally known to me or produced ____________ as
identification, and [did] [did not] take an oath.
Notary:_________________________________
[NOTARIAL SEAL] Print Name:_____________________________
Notary Public, State of_________________
My commission expires:__________________
Exhibit P
Assignment of Membership Interests
----------------------------------
Exhibit P
ASSIGNMENT AND ASSUMPTION
OF
MEMBERSHIP INTEREST
THIS ASSIGNMENT AND ASSUMPTION ("Assignment")is made as of this _____
day of August 1998, by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and AZIW Inc., a New York
corporation, both having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, hereinafter referred to collectively as "Assignor," and ▇▇ ▇▇▇▇▇
Operating Partnership L.P., a Delaware limited partnership having an address at
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as
"Assignee."
W I T N E S S E T H
WHEREAS, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is the present holder of fifty percent (50%)
membership interest in AZIW LLC, a New York limited liability company (the
"Company") and AZIW INC. is the present holder of a one percent (1%) membership
interest in the Company; and
WHEREAS, Assignor, in satisfaction of that certain Demand Note dated
August __, 1998 in favor of the Assignee and pursuant to the covenants, terms
and conditions of that certain Pledge and Security Agreement (the "Agreement")
dated August __, 1998 by and between Assignor and Assignee, desires to transfer
to Assignee and Assignee desires to acquire, one hundred (100%) percent of
Assignor's collective fifty-one percent (51%) membership interest in and to the
Company from Assignor (such interest is hereinafter referred to as the
"Membership Interest");
NOW, THEREFORE, in consideration of Ten dollars ($10.00) and other good
and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
1. Assignor hereby irrevocably and absolutely assigns and transfers the
Membership Interest to Assignee and directs that all future distributions and
allocations of taxable income or loss on account of the Membership Interest be
paid or allocated to Assignee, and Assignee hereby agrees to and accepts this
Assignment and assumes and agrees to discharge all of the obligations,
responsibilities and liabilities of Assignor under the Operating Agreement of
the Company as the owner and holder of the Membership Interest. Such assignment
is made without any warranties, recourse or representations.
2. Assignor hereby certifies that, to its best knowledge, it is the
sole owner of the Membership Interest, that the Membership Interest has not been
pledged, and that there are no liens or encumbrances attached to such Membership
Interest.
3. This Assignment shall be binding upon and shall inure to the benefit
of the parties hereto, their administrators, successors-in-interest and assigns.
4. This Assignment shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, each of the undersigned has executed this
Assignment as of the date first above written.
AZIW INC.
By: ___________________________________
Name:
Title:
________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership,
L.P., its manager
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By:___________________________
Name:
Title:
Exhibit Q
Guaranty
--------
Exhibit Q
---------
GUARANTY
GUARANTY (this "GUARANTY") dated as of this __ day of August, 1998, is
made by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual having an address c/o The Macklowe
Organization, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Macklowe") and
Manhattan Pacific Management Co. Inc., a _____________ having an address c/o The
Macklowe Organization, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Manhattan
Pacific"; and, collectively with Macklowe, "Guarantor"), for the benefit of
Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York limited liability company having an address
at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Green"). All capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to such
terms in the Agreement (hereinafter defined).
W I T N E S S E T H:
WHEREAS, AZIW LLC, a New York limited liability company ("AZIW LLC")
AZIW INC., a New York corporation ("Member"; and, together with AZIW LLC,
collectively, "AZIW") and Macklowe intend to enter into with Green that certain
Agreement dated the date hereof (the "AGREEMENT");
WHEREAS, Macklowe is the ultimate beneficial owner of Member and AZIW
LLC with respect to the Agreement and Macklowe and Manhattan Pacific shall
receive substantial economic benefits from the Agreement and the transactions
contemplated thereby; and
WHEREAS, Guarantor desires to give this Guaranty to Green in order to
induce Green to enter into the Agreement with AZIW.
NOW, THEREFORE, for good and valuable consideration and as an
inducement to Green to enter into the Agreement:
1. Guarantor hereby unconditionally and absolutely guarantees to Green
the full and timely performance and observance of all covenants, terms,
conditions and agreements to be performed and observed by AZIW under the
Agreement, including, without limitation, the indemnities under Section 21(e) of
the Agreement, and all of the instruments and documents executed by AZIW
pursuant to the Agreement (each a "TRANSACTION Document"), and Guarantor hereby
covenants and agrees that if AZIW shall default at any time in the performance
of any obligation under the Agreement or any Transaction Document (such
obligations being hereinafter referred to as the "GUARANTEED OBLIGATIONS"),
Guarantor will forthwith pay to Green all damages, costs and expenses that may
arise in consequence of any default by AZIW in the performance or payment of the
Guaranteed Obligations, including without limitation, all attorneys' fees and
disbursements incurred by Green or caused by any such default and/or the
enforcement of this Guaranty. Successive recoveries may be had hereunder. It is
expressly understood however, that if the Closing occurs with the application of
the Partnership Election, Guarantor shall not be liable for any conduct of AZIW
LLC taken after Green, or its affiliate, has acquired all of the interests in
AZIW LLC, provided that Guarantor's liability hereunder with respect to conduct
prior to such acquisition shall remain unaffected by such acquisition.
2. This Guaranty is an absolute and unconditional guaranty of payment
and performance. It shall be enforceable against Guarantor without the necessity
of any suit or proceeding on Green's part of any kind or nature whatsoever
against AZIW and without the necessity of nonpayment, nonperformance or
nonobservance or any notice of acceptance of this Guaranty and without need for
demand for payment under this Guaranty or of any other notice or demand to which
Guarantor might otherwise be entitled, all of which Guarantor hereby expressly
waives; and Guarantor hereby expressly agrees that the validity of this Guaranty
and the obligations of Guarantor hereunder shall in no way be terminated,
affected, diminished or impaired by reason of the assertion or the failure to
assert by Green against AZIW of any of the rights or remedies reserved to Green
pursuant to the provisions of the Agreement or any Transaction Document or
allowed at law or in equity or by relief of AZIW from any of AZIW's obligations
under the Agreement or any Transaction Document or otherwise by (a) the release
or discharge of AZIW in any creditors' proceedings, receivership, bankruptcy or
other proceedings, (b) the impairment, limitation or modification of the
liability of AZIW or the estate of AZIW in bankruptcy, or of any remedy for the
enforcement of AZIW's said liability under the Agreement or any Transaction
Document, resulting from the operation of any present or future provisions of
the bankruptcy laws or from the decision in any court, or (c) the rejection or
disaffirmance of the Agreement or any Transaction Document in any such
proceedings.
3. This Guaranty shall be a continuing guaranty and the liability of
Guarantor shall in no way be affected, modified or diminished by reason of any
assignment, amendment, renewal, supplement, modification or extension of the
Agreement or any Transaction Document, by reason of modification or waiver of or
change in any of the terms, covenants, conditions or provisions of the Agreement
or any Transaction Document, by reason of any extension of time that may be
granted by Green to AZIW, its successors or assigns, or by reason of any
dealings or transactions or matters or things occurring between Green and AZIW,
its successors or assigns, whether or not notice thereof is given to Guarantor.
It is expressly understood however, that the liability of Guarantor hereunder
shall survive the Closing or termination of the Agreement only to the extent
that the liability of AZIW shall survive the Closing or termination of the
Agreement as provided in the Agreement that the Floor and Ceiling shall apply
with regard to any post-Closing Guaranteed Obligation under Section 11(c) of the
Agreement.
4. All of Green's rights and remedies under the Agreement or under this
Guaranty are intended to be distinct, separate and cumulative, and no such right
and remedy therein or herein mentioned, whether exercised by Green or not, is
intended to be an exclusion of or a waiver of any of the others. The obligations
of Guarantor hereunder shall not be released by Green's receipt, application or
release of any security given for the performance and observance of covenants
and conditions required to be performed or observed by AZIW under the Agreement
nor shall Guarantor be released by the maintenance of or execution upon any lien
which Green may have or assert against AZIW and/or AZIW's assets.
5. This Guaranty shall be secured in part by the proceeds of the
Commission as more particularly provided in Section 21(d) of the Agreement and
the Escrow Agreement, but it is expressly understood that such security shall
not in any way limit Green's recovery hereunder if Guarantor's liability under
this Guaranty shall exceed the amount of the Commission deposited to secure
Guarantor's obligations hereunder.
6. Guarantor hereby irrevocably waives all rights to be subrogated to
the rights of Green with respect to the Guaranteed Obligations. Guarantor hereby
agrees that it will not institute or take any action seeking reimbursement
against AZIW.
7. Guarantor hereby submits itself to the jurisdiction of the courts of
New York in any action or proceeding against Guarantor arising out of this
Guaranty and in furtherance thereof.
8. Guarantor hereby covenants and agrees to and with Green, its
successors and assigns, that Guarantor may be joined in any action against AZIW
in connection with the Agreement and that recovery may be had against Guarantor
in such action or in any independent action against Guarantor without Green, its
successors or assigns, first pursuing or exhausting any remedy or claim against
AZIW, its successors or assigns. Guarantor also agrees that, in any
jurisdiction, it will be conclusively bound by the judgment in any such action
by Green against AZIW (wherever brought) as if Guarantor were a party to such
action even though Guarantor is not joined as a party in such action.
9. Guarantor hereby waives all right to trial by jury in any action or
proceedings hereinafter instituted by Green to which Guarantor may be a party.
10. In the event that this Guaranty shall be held ineffective or
unenforceable by any court of competent jurisdiction, Guarantor shall be deemed
to be a party under the Agreement with the same force and effect as if Guarantor
were expressly named as a party therein with joint and several liability.
11. Any notice, demand or request by Green shall be in writing, and
shall be deemed to have been duly given or made if mailed by certified mail or
registered mail, return receipt requested, addressed to Guarantor's address
herein above set forth.
12. This Guaranty shall be construed in accordance with and governed by
the laws of the State of New York.
13. This instrument shall inure to the benefit of Green and Green's
successors and assigns, and shall be binding upon and enforceable against
Guarantor and Guarantor's successors and assigns.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, Guarantor has executed this instrument the day and
year first above written.
GUARANTORS:
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
MANHATTAN PACIFIC MANAGEMENT
CO. INC.
By:_________________________________
Name:
Title:
Exhibit R
Assignment Agreement
--------------------
Exhibit R
---------
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
KNOW THAT AZIW LLC, a New York limited liability company having an
address c/o The Macklowe Organization, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Assignor"), in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, hereby assigns to Green ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, a New York limited
liability company having an address c/o ▇▇ ▇▇▇▇▇ Realty Corp., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Assignee"), all of Assignor's right, title
and interest in, to and under that certain Purchase and Sale Agreement dated
March 31, 1998 (the "Contract").
TO HAVE AND TO HOLD to Assignee and its successors and its assigns, who
shall hereafter be deemed to be substituted for Assignor, subject to the
covenants, conditions and provisions of this Contract.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment on this ___ day of August, 1998.
ASSIGNOR:
AZIW LLC
By: AZIW INC., its managing member
By:___________________________
Name:
Title:
ASSIGNEE:
GREEN ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
By: ▇▇ ▇▇▇▇▇ Operating Partnership,
L.P., its manager
By: ▇▇ ▇▇▇▇▇ Realty Corp.,
its general partner
By:___________________________
Name:
Title:
SCHEDULE 4
EXISTING LEASES
Attachments
--------------------------------------------------------------------------------
1 Schedule of of New Leases and Amendments
2 Schedule of Leases (from Fashion Gallery LLC Purchase and Sale Agreement)
3 Fashion Gallery Owner LLC Annualized Rent Roll
4 See Schedule 8 for Tenant Arrearage Schedule
--------------------------------------------------------------------------------
Default notices were sent to the following tenants*:
--------------------------------------------------------------------------------
1 Broadway Stationery Company - Store #5
2 Katescorp (US) Inc. - ▇▇▇▇▇ ▇▇▇▇
▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
4 Mi-Kor Realty Corp.-Suite 718
* See Schedule 9 for further information.
New Lease Amendments
--------------------
Lease Lease Amendment
Unit Tenant Begins Ends Date
--------------------------------------------------------------------------
707 Quadra LLC 5/27/97 7/31/08 3/24/98
1200 ▇▇▇▇▇▇▇▇ Company (New York) 6/14/89 8/31/98 5/26/98
1200 ▇▇▇▇▇▇▇▇ Company (New York) 6/14/89 10/2/98 7/29/98
1214 ▇▇▇▇ ▇▇▇▇▇▇▇▇ 8/3/93 8/31/98 6/22/98
1404 ABC International 10/16/96 7/31/98 4/30/98
1410 The Fashion Service, Inc. 2/3/87 8/31/98 5/20/98
1604 Steilman 8/31/91 8/31/98 8/4/98
1714 Me & You 3/1/98 2/28/02 2/27/98
19th Flr. Pavilion Suites 6/1/94 5/31/04 7/1/98
2014 SFH 5/1/97 9/30/99 6/5/98
2300 San Simeon 9/30/91 11/30/01 5/29/98
2410 Lane ▇▇▇▇▇▇ 3/7/91 7/31/98 5/20/98
2500 Toptrans Corp. 2/11/87 4/30/01 4/24/98
New Leases
----------
Lease Lease Lease
Unit Tenant Begins Ends Date
-------------------------------------------------------------------------
708 Lane ▇▇▇▇▇▇ 7/1/98 6/30/03 6/22/98
1102 U-Girl 6/9/98 9/30/03 4/8/98
1108 Production Makers 5/1/98 8/30/03 4/3/98
1109 ▇▇▇▇▇▇ Publications 4/27/98 7/31/03 3/5/98
1412 La Strada Sportswear 6/1/98 6/30/01 5/26/98
1614 Casual Corner 6/3/98 6/2/01 6/3/98
1806 Canex Fashion, Inc. 10/15/98 12/15/01 N/A
2112 Steilman 8/4/98 10/31/03 8/4/98
2302 ▇▇▇▇▇▇▇ Textiles 8/1/98 7/31/01 7/20/98
New Storage Leases*
-------------------
Lease Lease Lease
Unit Tenant Begins Ends Date
------------------------------------------------------------------------
Storage Ridgeview. 4/1/98 10/31/01 4/1/98
Room 2
Storage MJF Imports. 4/1/98 4/30/02 4/1/98
Room 3
Storage Mainetti Canada. 3/1/98 6/30/02 3/1/98
Room 11
Storage Marconi Intl. 3/1/98 3/31/00 3/1/98
Room 5
*Rents detailed for these tenants on rent roll are included with the
corresponding office leases.
-------------------------------------------------------------------------------------------
Floor size/Suite TENANT Lease term Lease Amendments
Begin End Date
-------------------------------------------------------------------------------------------
Store 1 ▇▇▇▇▇ ▇▇▇▇▇ 4/1/98 2/28/06 4/1/89 none
Store 2 Gotham Bank of NY 2/1/92 1/31/09 3/11/92 none
Store 3 Cornucopia, Inc. 12/20/92 12/31/02 12/31/02 3/27/96, 3/22/94
Store 4 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 10/12/92 9/30/02 10/12/92 none
Store 5 Broadway Stationery Co. 2/17/94 4/30/02 2/16/94 none
Store 6 Roma Pizza 2/16/94 1/28/12 2/16/94 11/12/97, 12/11/97
12/12/97
2nd & 4th ▇▇▇▇▇▇ ▇▇▇ Co. 4/29/97 4/30/02 ▇/▇▇/▇▇ ▇▇▇▇
▇▇▇ & ▇▇▇ ▇▇▇▇▇▇ (▇▇▇) Inc. 3/3/98 12/31/08 4/29/97 2/4/98
700 Afzam, Inc. 1/15/98 1/31/01 1/5/98 none
702 ▇▇▇▇▇▇▇ by ▇▇▇▇ 6/5/97 6/30/99 6/9/97 none
704 Mainetti Canada 5/30/97 6/30/02 5/30/97 none
▇▇▇ ▇▇▇▇▇▇▇ Int'l 5/1/96 4/30/01 4/5/96 none
718 Mi-Kor Realty Corp 5/1/95 4/30/00 7/5/95 none
800 Escada 8/15/89 8/31/06 3/22/89 none
900 Escada 1/1/97 8/31/06 10/31/96 none
1000 Escada 1/1/97 12/31/06 10/31/96 none
1101 ▇▇▇▇▇▇▇▇ ▇▇/▇/▇▇ ▇▇/▇▇/▇▇ ▇/▇▇/▇▇ ▇▇▇▇
▇▇▇▇ ▇▇(▇▇▇), Inc. 12/1/96 11/30/01 10/30/96 none
1104 Jacob Schaelpfer 1/1/98 2/28/02 12/4/92 11/26/97
1106 Marcorossi 7/15/97 4/30/03 7/18/97 11/26/97
1108 Me & You 3/1/98 2/28/03 5/15/92 2/27/98
relocated to 1714
1200 ▇▇▇▇▇▇▇▇ Company 9/1/94 5/31/98 6/14/98 1/31/98, 7/25/97, 12/16/96
7/11/96, 3/27/96, 2/22/96
8/10/94, 5/18/93, 9/25/91
1202/06 ▇▇▇▇▇ ▇▇▇▇▇ 3/9/90 4/30/00 3/9/90 none
1212 Fashion Lab 5/20/97 7/31/00 7/22/93 5/12/97
1214 ▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. 8/3/93 6/30/98 7/19/93 4/30/96
▇▇▇▇ ▇▇▇▇▇ Apparel 6/30/02 1/30/98 none
1402 ▇▇▇▇ Int'l Group 1/1/90 12/31/98 12/22/89 5/20/92, 4/18/97,
11/14/95
1408 ▇▇▇▇ Int'l Group 1/1/90 12/31/98 12/22/89 11/14/95
1410 The Fashion Service 3/1/87 5/31/98 3/31/89 5/4/93, 5/27/96
4/30/97, 10/29/91
1412 La Strada Sportswear Inc. 6/6/94 6/30/98 May-94 4/30/96
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇ ▇▇ 10/14/94 12/31/98 10/13/94 12/3/96, 10/25/95
1416 Rosebar Textile Co. Inc. 6/4/96 6/30/99 5/21/96 none
1500 D.Z. Trading 10/15/93 10/31/00 8/30/93 11/12/96, 11/12/96
▇▇▇▇ ▇▇▇▇▇▇ Apparel Inc. 3/15/91 1/31/99 2/4/91 12/29/97, 1/16/97
6/25/96, 3/4/96,
6/25/96
11/12/93, 4/29/93
1506 RPJ Sportswear 10/9/96 10/31/98 10/9/96 none
1508 MJF 1/29/98 5/31/02 12/29/97 1/29/98
1509 J&J Contract Services, Inc. 5/1/98 8/31/03 2/27/98 none
1511 American Express Fashion 1/1/96 3/31/99 12/19/95 none
1512 La Silhouette Apparel USA 5/20/94 5/31/00 5/6/94 4/30/97, 2/27/98
1602 California Apparel 11/3/97 11/30/00 9/30/97 none
1604 Steilman by ▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/91 8/31/98 6/24/91 8/31/95
1608 Singer Fashion Group 12/18/95 12/31/00 4/12/93 12/8/95
1610 ▇▇▇▇▇ Int'l Inc. 2/1/89 1/31/01 12/14/88 9/30/97, 1/10/94
12/12/94, 10/2/92
10/15/90
1612 M.E. ▇▇▇▇ 2/1/86 1/31/00 9/10/85 1/5/89, 11/29/89
12/21/95, 6/6/91
1/30/97, 11/27/90,
12/31/97
1616 Fabric Team 5/2/97 5/31/99 4/21/97 none
1617 ▇▇▇▇▇ Studio 12/11/95 12/31/98 12/13/95 none
1704 Marc Wear 5/1/95 7/31/00 Apr-95 7/11/96
1705 Ridgeview 10/7/96 10/31/01 2/12/96 7/31/96
1707 Kates Corp 9/8/97 3/31/00 7/3/97 none
▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 1/15/98 1/30/01 1997 none
1716 Marconi Int'l 3/1/95 3/31/00 12/22/94 3/31/98
1802/04 Private Manuf. 9/1/93 3/30/02 8/13/93 12/9/97
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1/1/96 12/31/00 12/21/95 12/22/97
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc. 9/3/97 9/30/02 6/20/97 none
1818 Sport-Elle, Inc. 3/17/97 1/31/01 3/18/97 none
1900 1412 Pavilion Suites, Inc. 4/1/95 4/30/04 6/1/94 none
2000 Keram 7/27/94 1/31/01 5/19/94 4/18/97
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 3/16/95 3/31/00 2/1/94 none
2004 SFH Inc. 9/27/94 9/30/99 7/20/94 4/30/97
2006 Council of Fashion 4/26/95 4/30/02 3/31/92 5/24/93, 2/9/95
Designers
2010 ▇▇▇▇ International 4/14/97 12/31/98 12/22/89 none
2014 SFH, Inc 5/1/97 9/30/99 7/20/94 4/30/97
2016 Lead Sportswear, Inc. 5/23/97 9/30/98 8/24/95 5/19/97
2100 Excel 1/1/94 1/31/99 11/18/93 none
2102 Jorobi Inc. 2/1/96 1/31/04 9/29/95 none
2300 San Simeon 12/1/91 11/30/01 9/30/91 8/27/93, 1/24/94
6/2/94, 6/22/94
12/29/94
2304 Cornell Trading 12/1/97 2/28/03 9/30/97 none
2306 Global Apparel Mgmt. 6/14/95 6/30/02 1/27/95 4/12/95
2400 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc. 3/20/91 3/31/01 1/16/91 10/1/93
2410 Lane ▇▇▇▇▇▇, Inc. 5/15/91 5/31/98 3/7/91 none
2500 Top Trans Corp 5/1/95 4/30/98 2/11/87 3/26/97
Schedule 5
Pavilion Sublessees
SCHEDULE 5
PAVILLION SUBLESSEES
See Schedule 8 for Tenant Arrearage Schedule
Schedule 6
Contracts
SCHEDULE 6
CONTRACTS
Chemical Specifics
Electronic Security
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
JWP Electronic Systems (Formerly Case Acme)
▇▇▇▇▇▇▇ Fire Drill
P.S. Marcato Elevator Co.
Manhattan Security Group
Pioneer Exterminating
Remco Maintenance Corp.
▇▇ ▇▇▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇ Fargo
Harvard Maintenance
Utilities Research
▇▇▇▇
▇▇▇▇▇▇▇ Controls
Note: See attached schedule for the Fashion Gallery Owners LLC
Purchase and Sale Agreement for further details.
Name and Mailing Address of
Parties to Lease or Contract Description of Contract or Lease
---------------------------- --------------------------------
CHEMICAL SPECIFICS Water Treatment
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ELECTRONIC SECURITY Security Equipment
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Closed Circuit Television
New York, New York 10010
EDISON COOLING Air Conditioning Equipment
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
CASE ACME Fire system Maintenance
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ FIRE DRILL Fire Compliance
▇.▇. ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
P.S. MARCATO ELEVATOR CO. Elevator Maintenance
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Manhattan Security Group Security Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
PIONEER EXTERMINATING Exterminating Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
REMCO MAINTENANCE CORP. Exterior Biolding Maintenance
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ SONS, INC. Uniform Repair
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ FARGO Fire Alarm Monitoring
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
HARVARD MAINTENANCE Cleaning Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
UTILITIES RESEARCH Meter Maintenance
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Schedule 7
Security Deposits
STATEMENT OF ACCOUNTS - 1412 PAVILLION SUITES
--------------------------------------------------------------------------------
RECENTLY MAILED
--------------------------------------------------------------------------------
1939 A-4 ▇▇▇▇▇▇ INC 08/03/98 $2,800.00
1953 CAMP0 VERDI, INC. 08/03/98 $3,000.00
1943 GMB IMPORTS 08/03/98 $2,200.00
1937 ▇▇▇▇▇▇ ▇▇▇▇▇ 08/03/98 $1,400.00
1941 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 08/03/98 $763.80
1965 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 08/03/98 $4,500.00
1962 SEACLIFF INDUSTRIES 08/03/98 $900.00
1675 SEACLIFF INDUSTRIES 08/03/98 $2,200.00
--------------------------------------------------------------------------------
WAITING TO BE DEPOSITED
--------------------------------------------------------------------------------
1959 RV SALES CORP $500.00
1924 BARTFAI TEXTILE $1,400.00
REPUBLIC NATIONAL BANK OF NEW YORK
LEASE SECURITY SYSTEM
THIS STATEMENT OF ACCOUNTS IS PREPARED FOR
1412 PAVILION SUITS INC.
C/O ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & ASSOC., INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
IF YOU HAVE ANY QUESTIONS PERTAINING TO
YOUR STATEMENT, PLEASE CALL YOUR BRANCH
REPRESENTATIVE
------------------------------------------------------------------------------------------------------------------------------------
BANK 1 REPUBLIC NATIONAL BANK OF NEW YORK STATEMENT OF ACCOUNTS BY APT-NO/LOCATION RSAPTSTM DATE RUN REQUESTED PAGE
BRCH 93 RENT SECURITY DEPOSIT SYSTEM AS OF JUL 31, 1998 10.37.15 7/30/98 STATEMENT 5.597
------------------------------------------------------------------------------------------------------------------------------------
BANK BRANCH AGENT MNGMT BLDG
NBR NBR NBR NBR NBR
--------------------------------------------------------------------------------
ACCOUNT NUMBER - 1 293 28 01 01
MANAGING AGENT MANAGEMENT BUILDING
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & ASSOC., INC. 1412 PAVILION SUITS INC. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
UNPAID EARNED INTEREST
ACCT DATE OF SECURITY TENANT MANAGEMENT CURRENT TENANT TOTAL
APT/LOCATION NO TENANT NAME DEPOSIT DEPOSIT YTD-INT PREV-YRS YTD-INT PREV-YRS TOTL VALUE VALUE
CCM 000041 FORTUNE FASHIONS INC. 7/ 1/97 3,200.00 22.32 29.79 .00 .00 3,252.11 3,252.11
1901 000058 DKR GROUP LTD 5/ 8/98 2,100.00 3.89 .00 .00 .00 2,103.89 2,103.89
1903 000042 INTERNATIONAL TEXTILE 9/23/97 2,600.0 18.04 16.66 .00 .00 2,634.70 2,634.70
1905 000044 AIALE USA INC. 10/ 6/97 2,700.00 18.67 10.18 .00 .00 2,728.85 2,728.85
1907 000043 MFM INTERNATIONAL, INC. 9/23/97 5,000.00 34.92 49.96 .00 .00 5,084.88 5,084.88
1910 000004 NORSTAN APPAREL INC. 7/ 1/97 2,300.00 16.22 35.01 .00 .00 2,351.23 2,351.23
1913 000006 MINX INT'L INC. 7/ 1/97 1,700.00 12.41 61.16 .00 .00 1,773.57 1,773.57
1913 000007 HEVERLEIN TEXTILE PRTG 7/ 1/97 3,000.00 21.51 76.74 .00 .00 3,098.25 3,098.25
1916 000008 M.A.S.H. APPAREL INC. 7/ 1/97 825.00 5.80 21.52 .00 .00 852.32 852.32
1916 000009 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 7/ 1/97 1,600.00 11.72 62.50 .00 .00 1,674.22 1,674.22
1917 000050 ▇▇▇▇▇▇ CORP 11/17/97 3,100.00 21.36 4.78 .00 .00 3,126.14 3,126.14
1919 000010 AMYLYNN OF CALIFORNIA 7/ 1/97 2,600.00 18.15 24.30 .00 .00 2,642.45 2,642.45
1921 000011 KALSTEIN SILK ▇▇▇▇▇ INC. 7/ 1/97 2,000.00 14.14 33.99 .00 .00 2,048.13 2,048.13
1922 000057 ▇▇▇▇▇▇ & ZIX 4/15/98 1,500.00 3.97 .00 .00 .00 1,503.97 1,503.97
1925 000013 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 7/ 1/97 2,000.00 13.96 18.71 .00 .00 2,032.67 2,032.67
1927 000014 STEADY FIRST USA INC. 7/ 1/97 2,000.00 14.25 41.88 .00 .00 2,056.13 2,056.13
1931 000055 REVIVAL WEAR, INC. 1/ 1/98 1,350.00 9.28 .00 .00 .00 1,359.28 1,359.28
1935 000017 NORMAL M ▇▇▇▇▇▇▇ UNIV MKG 7/ 1/97 550.00 3.89 9.92 .00 .00 563.81 563.81
1935 000048 UNIVERSAL MARKETING CONSULTANT 11/17/97 550.00 3.79 1.02 .00 .00 554.81 554.81
1937 000018 ▇▇▇▇▇ ▇▇▇▇▇▇ 7/ 1/97 50.00 .36 .55 .00 .00 50.91 50.91
1941 000021 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 7/ 1/97 336.20 2.31 3.12 .00 .00 341.63 341.63
1943 000046 R. V. SALES CORPORATION 10/ 6/97 2,000.00 13.83 7.55 .00 .00 2,021.38 2,021.38
1944 000022 GREAT DEAL INC. 7/ 1/97 1,200.00 8.50 22.08 .00 .00 1,230.58 1,230.58
1945 000023 FERDINO APPAREL INC. 7/ 1/97 1,200.00 8.36 10.81 .00 .00 1,219.17 1,219.17
1948 000024 SEACLIFF INDUSTRIES INC. 7/ 1/97 3,000.00 20.93 28.04 .00 .00 3,048.97 3,048.97
1950 000025 ▇▇▇▇ ▇▇▇▇▇ GAIN INDUSTRIES 7/ 1/97 1,200.00 8.36 11.22 .00 .00 1,219.58 1,219.58
1951 000026 ▇▇▇▇▇▇-▇▇▇▇▇▇ MFG INC. 7/ 1/97 3,200.00 22.49 42.25 .00 .00 3,264.74 3,264.74
1953 000027 JANAKI ART & DESIGN 7/ 1/97 1,600.00 11.67 59.06 .00 .00 1,670.73 1,670.73
1954 000047 ▇. ▇▇▇▇▇▇▇▇ BUYING SERVICE 11/17/97 1,300.00 8.90 2.42 .00 .00 1,311.40 1,311.40
1956 000030 PROCHAT INC. 7/ 1/97 1,300.00 9.29 28.57 .00 .00 1,337.86 1,337.86
1956 000059 ▇▇▇▇ ▇▇▇▇▇ 6/15/98 1,350.00 .74 .00 .00 .00 1,350.74 1,350.74
1957 000031 BELLE INTL 7/ 1/97 2,600.00 18.37 43.53 .00 .00 2,661.90 2,661.90
1959 000065 CYC CORP. OF AMERICA 7/ 1/97 2,900.00 18.15 24.30 .00 .00 2,942.45 2,942.45
1963 000062 FDH INC 7/10/98 3,500.00 .00 74.14 .00 .00 3,574.14 3,574.14
1967 000035 FORTUNE FASHIONS INC. 7/ 1/97 3,200.00 22.62 53.44 .00 .00 3,276.06 3,276.06
1968 000056 CHURCH AVE PROD. ▇▇▇▇▇ ▇▇ ▇▇▇▇ 3/20/98 1,050.00 3.80 .00 .00 .00 1,053.80 1,053.80
1969 000049 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (AVENIR CO.) 11/17/97 2,100.00 14.48 3.89 .00 .00 2,118.37 2,118.37
1971 000038 ▇▇▇▇▇ ▇▇▇▇▇ ASSOC INC. 7/ 1/97 2,200.00 15.35 20.56 .00 .00 2,235.91 2,235.91
1973 000064 VALUE BUYING SERVICE 7/14/98 2,400.00 .00 .00 .00 .00 2,400.00 2,400.00
1977 000063 QUALITY KNITTING (CANADA) 7/10/98 4,400.00 .00 60.46 .00 .00 4,460.46 4,460.46
(table continued)
BUILDING RECAP
BANK BRANCH AGENT MNGMT BLDG
NBR NBR NBR NBR NBR
--------------------------------------------------------------------------------
ACCOUNT NUMBER - 1 293 28 01 01
(table continued)
NUMBER OF ACCOUNTS SECURITY TENANT INTEREST MANAGEMENT INTEREST CURRENT TOTAL TENANT VALUE
AGNT MGNT BLDG TENANT DEPOSITS THIS YEAR PREVIOUS THIS YEAR PREVIOUS TOTAL VALUE
40 82,761.20 476.88 994.11 .00 .00 84,232.19 84,232.19
(table continued)
**** NOTE: A 'W' NEXT TO THE TENANT'S -CURRENT UNPAID EARNED INTEREST- FIELD
INDICATES ACCOUNT HAS TEFRA WITHHOLDING THIS YEAR****
STATEMENT OF ACCOUNTS-FURTHER
SUITE# ACCOUNT TENANT DATE OF SECURITY TENANT TENANT CURRENT TENANT
DEPOSIT DEPOSIT YTD INT PREV YRS TOTAL VALUE TOTAL VALUE
----------------------------------------------------------------------------------------------------------------------------
RECENTLY MAILED
1410 FASHION SERVICE INC $5,154.33
2500 TOPTRANS CORP $5,700.00
1405 THE ▇▇▇▇▇▇▇▇ CO (NY) INC 08/05/98 $4,500.00
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GARMENT 08/05/98 $6,942.50
1604 THE ▇▇▇▇▇▇▇▇ CO (NY) INC 08/05/98 $25,477.78
704 MAINETTI USA, INC 08/05/98 $9,585.00
WAITING TO BE DEPOSITED
2112 STEILMAN INC $15,320.54
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ $20,137.50
TO BE REFUNDED
1604 000033 STEILMAN BY ▇▇▇▇▇ ▇▇▇▇▇▇ $28,895.27
2004 000049 SFH LTD. $1,853.25
------------------------------------------------------------------------------------------------------------------------------------
BANK 1 REPUBLIC NATIONAL BANK OF NEW YORK STATEMENT OF ACCOUNTS BY APT-NO/LOCATION RSAPTSTM DATE RUN REQUESTED PAGE
BRCH 93 RENT SECURITY DEPOSIT SYSTEM AS OF JUL 31, 1998 10.37.15 7/30/98 STATEMENT 5.597
------------------------------------------------------------------------------------------------------------------------------------
BANK BRANCH AGENT MNGMT BLDG
NBR NBR NBR NBR NBR
--------------------------------------------------------------------------------
ACCOUNT NUMBER - 1 293 28 01 01
MANAGING AGENT MANAGEMENT BUILDING
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & ASSOC., INC. 1412 PAVILION SUITS INC. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
UNPAID EARNED INTEREST
ACCT DATE OF SECURITY TENANT MANAGEMENT CURRENT TENANT TOTAL
APT/LOCATION NO TENANT NAME DEPOSIT DEPOSIT YTD-INT PREV-YRS YTD-INT PREV-YRS TOTL VALUE VALUE
STORE 1 000059 CORNUCOPIA INC. 7/ 1/97 6,465.40 50.16 485.01 .00 .00 7,000.57 7,000.57
STORE 2 000060 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 7/ 1/97 5,600.00 43.62 435.20 .00 .00 6,078.82 6,078.82
STORE 6 000075 ROMA PIZZA FOOD CORP. 1/ 9/98 20,750.00 135.64 .00 .00 .00 20,885.64 20,885.64
1100 000006 S A (USA) INC 7/ 1/97 15,113.00 107.05 272.20 .00 .00 15,492.75 15,492.75
1101 000067 NETTALCO NY, INC 11/17/97 4,480.00 30.89 8.31 .00 .00 4,519.20 4,519.20
1102 000080 U-GIRL, INC. 5/ 1/98 6,209.00 13.02 .00 .00 .00 6,222.02 6,222.02
1104 000070 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ INC. 12/17/97 9,405.00 69.03 372.41 .00 .00 9,846.44 9,846.44
1106 000071 MACOROSSI USA, INC. 12/17/97 14,550.00 100.10 11.86 .00 .00 14,661.96 14,661.96
1108 000079 PRODUCTION MAKERS INC. 5/ 1/98 22,847.00 47.89 .00 .00 .00 22,894.89 22,894.89
1109 000008 ▇▇▇▇▇▇ PUBLISHING 7/ 1/97 7,047.00 42.86 271.22 .00 .00 7,361.08 7,361.08
1200 000013 ▇▇▇▇▇▇▇▇ COMPANY 7/ 1/97 13,683.32 131.11 3133.52 .00 .00 16,947.95 16,947.95
1202 000014 ▇▇▇▇▇ ▇▇▇▇▇ 7/ 1/97 10,427.00 94.82 1958.43 .00 .00 12,480.25 12,480.25
1206 000015 ▇▇▇▇▇ ▇▇▇▇▇ 7/ 1/97 4,770.00 35.81 256.56 .00 .00 5,062.37 5,062.37
1212 000018 THE FASHION LAB LTD 7/ 1/97 10,575.00 78.80 518.22 .00 .00 11,172.02 11,172.02
1216 000076 ESSEL CLOTHING GROUP INC 7/ 1/97 4,850.00 26.24 .00 .00 .00 4,876.24 4,876.24
14002 000063 ▇▇▇▇ INTL GROUP LTD 7/ 1/97 14,583.34 134.51 2899.32 .00 .00 17,617.17 17,617.17
1404 000019 ABC INTL INC 7/ 1/97 8,282.00 58.67 149.46 .00 .00 8,490.13 8,490.13
1408 000021 ▇▇▇▇ INTL GROUP LTD 7/ 1/97 3,333.34 30.83 670.09 .00 .00 4,034.26 4,034.26
1410 000022 FASHION SERVICE INC. 7/ 1/97 5,000.00 35.32 82.33 .00 .00 5,117.65 5,117.65
1412 000023 LA STRADA SPORTWEAR INC. 7/ 1/97 3,593.75 34.77 233.76 .00 .00 3,862.28 3,862.28
1414 000024 ▇▇▇▇▇ ▇▇▇ CO OF NY 7/ 1/97 9,157.50 69.03 516.65 .00 .00 9,743.18 9,743.18
1416 000025 ROSEBAR TEXTILE CO 7/ 1/97 9,420.00 67.49 233.44 .00 .00 9,720.93 9,720.93
1500 000026 D Z TRADING INC. 7/ 1/97 26,377.50 200.87 1657.79 .00 .00 28,236.16 28,236.16
1504 000027 MONACO APPAREL INC. 7/ 1/97 11,656.34 99.55 1643.34 .00 .00 13,399.23 13,399.23
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ SPORTWEAR INC. 7/ 1/97 16,687.50 118.29 307.43 .00 .00 17,113.22 17,113.22
1508 000074 MJF IMPORTS, INC. 1/ 9/98 19,052.99 124.54 .00 .00 .00 19,177.53 19,177.53
1511 000031 AMERICAN EXPRESS FASHION 7/ 1/97 7,732.50 55.88 234.20 .00 .00 8,022.58 8,022.58
1512 000032 LA SILHOUETTE APPAREL 7/ 1/97 8,248.00 61.53 411.29 .00 .00 8,720.82 8,720.82
1602 000068 CALIFORNIA APPAREL, INC (▇▇▇▇▇▇▇) 11/17/97 7,012.50 48.31 13.00 .00 .00 7,073.81 7,073.81
1604 000033 STEILMAN BY ▇▇▇▇▇ ▇▇▇▇ 7/ 1/97 25,700.00 211.90 2983.37 .00 .00 28,895.27 28,895.27
1608 000034 SINGER FASHION GROUP INC. 7/ 1/97 20,250.00 151.00 1001.80 .00 .00 21,402.80 21,402.80
1610 000035 ▇▇▇▇▇ INTL 7/ 1/97 5,915.63 35.44 582.01 .00 .00 6,533.08 6,533.08
1612 000036 M E ▇▇▇▇ CO INC 7/ 1/97 1,662.50 22.43 930.23 .00 .00 2,615.16 2,615.16
1617 000038 ▇▇▇▇▇ STUDIO INC. 7/ 1/97 2,400.00 17.36 72.70 .00 .00 2,490.06 2,490.06
1704 000002 MARC WEAR 7/ 1/97 24,630.00 177.68 713.67 .00 .00 25,521.35 25,521.35
1705 000072 RIDGEVIEW INC. 1/ 1/98 33,195.00 234.86 723.00 .00 .00 34,152.86 34,152.86
1710 000082 ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, INC. 5/20/98 7,500.00 10.81 .00 .00 .00 7,510.81 7,510.81
1714 000010 MERYOU-SAN ANDRE 7/ 1/97 15,716.67 118.96 928.01 .00 .00 16,763.64 16,763.64
1716 000041 MARCONI INTL 7/ 1/97 16,125.00 118.57 658.14 .00 .00 16,901.71 16,901.71
1804 000043 PRIVATE MFG INC. 7/ 1/97 25,980.00 190.67 1025.47 .00 .00 27,196.14 27,196.14
1806 000044 SEABOARD ATLANTIC GARMENT 7/ 1/97 6,937.50 50.16 210.16 .00 .00 7,197.82 7,197.82
1848 000046 SPORT-ELLE INC. 7/ 1/97 10,500.00 73.64 127.50 .00 .00 10,701.14 10,710.14
2000 000047 KORAM INTL NY INC. 7/ 1/97 10,500.00 78.82 564.79 .00 .00 11,143.61 11,143.61
2002 000048 GREENWAVE INC MATCH U 7/ 1/97 4,500.00 34.19 275.55 .00 .00 4,809.74 4,809.74
2004 000049 SFH LTD 7/ 1/97 8,964.25 69.42 660.93 .00 .00 9,694.60 9,694.60
2006 000050 COUNCIL OF FASHION DESIGN 7/ 1/97 5,221.00 41.69 490.25 .00 .00 5,752.94 5,752.94
2008 000083 CDFA FOUNDATION, INC 7/24/98 4,423.70 .00 .00 .00 .00 4,423.70 4,423.70
2010 000051 ▇▇▇▇ INTL GROUP LTD 7/ 1/97 6,423.00 44.94 69.42 .00 .00 6,537.36 6,537.36
2014 000052 SFH INC. 7/ 1/97 4,569.00 31.89 42.73 .00 .00 4,643.62 4,643.62
2016 000069 LEAD SPORTSWEAR, LLC 10/ 1/97 6,831.00 24.82W 363.80 .00 .00 7,219.62 7,219.62
2100 000053 EXCEL APPAREL INC. 7/ 1/97 9,200.00 69.64 543.27 .00 .00 9,812.91 9,812.91
2102 000054 JOROBI INC. 7/ 1/97 35,542.50 258.49 1208.18 .00 .00 37,009.17 37,009.17
2300 000055 SAN SIMEON INC. 7/ 1/97 32,813.16 245.82 1721.21 .00 .00 34,780.19 34,780.19
2300 000056 SAN SIMEON INC. 7/ 1/97 6,320.00 46.47 257.97 .00 .00 6,624.44 6,624.44
2302 000084 ▇▇▇▇▇▇▇ TEXTILES, INC. 7/24/98 10,368.75 .00 .00 .00 .00 10,368.75 10,368.75
2306 000057 GLOBAL APPAREL MGMT INC. 7/ 1/97 3,975.00 27.55 .00 .00 .00 4,002.55 4,002.55
2306 000058 GLOBAL APPAREL MGMT 7/ 1/97 21,637.50 150.07 .00 .00 .00 21,787.57 21,787.57
2500 000081 TOPTRANS CORP 5/ 1/97 8,700.00 18.23 .00 .00 .00 8,718.23 8,718.23
700 000073 AFZAM, INC. 1/ 9/98 6,467.52 42.27 .00 .00 .00 6,509.79 6,509.79
702 000064 ▇▇▇▇▇▇▇ BY ▇▇▇▇, INC. 9/23/97 5,835.00 40.37 25.66 .00 .00 5,901.03 5,901.04
706 000003 BRIGATA INTL INC. 7/ 1/97 23,679.50 169.99 614.85 .00 .00 24,464.34 24,464.34
707 000078 QUADRA LLC 4/15/98 17,615.76 46.65 .00 .00 .00 17,662.41 17,662.41
(table continued)
BUILDING RECAP
BANK BRANCH AGENT MNGMT BLDG
NBR NBR NBR NBR NBR
--------------------------------------------------------------------------------
ACCOUNT NUMBER - 1 293 28 01 02
(table continued)
NUMBER OF ACCOUNTS SECURITY TENANT INTEREST MANAGEMENT INTEREST CURRENT TOTAL TENANT VALUE
AGNT MGNT BLDG TENANT DEPOSITS THIS YEAR PREVIOUS THIS YEAR PREVIOUS TOTAL VALUE
62 737,007.92 5,001.43 33,570.21 .00 .00 775,579.56 775,579.56
(table continued)
****NOTE: A 'W' NEXT TO THE TENANT'S -CURRENT UNPAID EARNED INTEREST- FIELD
INDICATES ACCOUNT HAS TEFRA WITHHOLDING THIS YEAR ****
(table continued)
-----------------------------------------------------------------------------------------------------------------------------------
BANK 1 REPUBLIC NATIONAL BANK OF NEW YORK STATEMENT OF ACCOUNTS BY APT-NO/LOCATION RSAPTSTM DATE RUN REQUESTED PAGE
BRCH 93 RENT SECURITY DEPOSIT SYSTEM AS OF JUL 31, 1998 10.37.15 7/30/98 STATEMENT 5,602
MANAGEMENT RECAP
--------------------------------------------------------------------------------
BANK BRANCH AGENT MNGMT BLDG
NBR NBR NBR NBR NBR
ACCOUNT NUMBER - 1 293 28 01 00
NUMBER OF ACCOUNTS SECURITY TENANT INTEREST MANAGEMENT INTEREST CURRENT TOTAL TENANT VALUE
AGNT MGNT BLDG TENANT DEPOSITS THIS YEAR PREVIOUS THIS YEAR PREVIOUS TOTAL VALUE
2 102 819,769.12 5,478.31 34,564.32 .00 .00 859,811.75 859,811.75
(table continued)
-----------------------------------------------------------------------------------------------------------------------------------
BANK 1 REPUBLIC NATIONAL BANK OF NEW YORK STATEMENT OF ACCOUNTS BY APT-NO/LOCATION RSAPTSTM DATE RUN REQUESTED PAGE
BRCH 93 RENT SECURITY DEPOSIT SYSTEM AS OF JUL 31, 1998 10.37.15 7/30/98 STATEMENT 5,603
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
MANAGING AGENT RECAP
BANK BRANCH AGENT MNGMT BLDG
NBR NBR NBR NBR NBR
ACCOUNT NUMBER - 1 293 28 00 00
NUMBER OF ACCOUNTS SECURITY TENANT INTEREST MANAGEMENT INTEREST CURRENT TOTAL TENANT VALUE
AGNT MGNT BLDG TENANT DEPOSITS THIS YEAR PREVIOUS THIS YEAR PREVIOUS TOTAL VALUE
1 2 102 819,769.12 5,478.31 34,564.32 .00 .00 859,811.75 859,811.75
Schedule 8
Tenant Arrearage Schedule
--- PREPARED FOR --- FASHION GALLERY OWNER LLC --PREPARED BY ---
FASHION GALLERY OWNER LLC AGED ARREARS REPORT THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ FOR PERIOD ENDED 8/ 5/98
AGENT: FASHION GALLERY BUILDING
BASE CURRENT LAST -T0TAL- - 1-30 ---- 31-60 --- 61-90 -- 91-120 -- 121+ -
BLD-TEN UNIT RESIDENT NAME CHARGES PAYMENTS PAY DATE AMT DUE AUG '98 JUL '98 JUN '98 MAY '98 APR '98
248-001 STORE ▇▇▇▇▇ ▇▇▇▇ 29166.67 07/09/98 29166.67 29166.67
*** ELEC METER 1526.10 1376.41 149.69
*** R/E TAX 2960.69 2960.69 2960.69
*** SUBMTR FEE 15.00 15.00 15.00
-------- -------- -------- --------
33668.46 32142.36 1376.41 149.69
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇.▇▇ 07/06/98 17083.33 17083.33
*** ELEC INCL 1000.00 1000.00 1000.00
-------- --------
18083.33 18033.33
248-003 STORE CORNUCOPIA INC. 3655.00 4924.88 08/05/98 3655.00 3655.00
*** ELEC INCL 1000.00 1000.00 1000.00
*** FUEL/UTIL .53 .00
*** ▇▇▇▇▇▇ WAG 268.82 268.82 268.82
*** MET WATER 140.04 66.35 53.91 19.78
*** LATE FEE 217.44 43.20 43.20 43.20 87.84
*** SUBMTR FEE 30.00 150.00 30.00 30.00 30.00 30.00 30.00
-------- -------- -------- -------- -------- --------
ELECT INCL. 5431.30 4953.82 139.55 127.11 92.98 117.84
248-004 STORE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1489.00 07/01/98 1489.00 1489.00
*** ELEC INCL 84.00 84.00 84.00
*** STORAGE 200.00 353.33 200.00 153.33
-------- -------- --------
1926.33 1773.00 153.33
248-005 STORE B'WAY STATIONERY CO. INC 14850.00 07/23/98 18283.96 14850.00 3433.96
*** WTR/SPKL 35.00 160.00 35.00 35.00 35.00 35.00 20.00
*** ELEC METER 9963.44 1731.96 1499.99 1414.87 5316.62
*** MISC. 513.60 513.16
*** NSF CK CHG 25.00 25.00
*** LATE FEE 429.93 145.80 141.00 104.60 38.53
*** ADD'L RENT 46559.10 46559.10
*** AIR-CON 525.00 525.00
*** SUBMTR FEE 15.00 90.00 15.00 15.00 15.00 15.00 30.00
-------- -------- -------- -------- -------- --------
76550.03 14900.00 5361.72 2229.59 1569.47 52489.25
▇▇▇-▇▇▇ ▇▇▇ AFZAM INC. 2012.50 07/27/98 2012.50 2012.50
*** ELEC INCL 201.25 201.25 201.25
*** R/E TAX 8.02 8.02 8.02
*** LATE FEE 20.10 16.75 3.35
*** ▇▇▇▇▇/CLNG 134.16 134.16
-------- -------- -------- --------
2376.03 2355.93 16.75 3.35
▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ BY ▇▇▇▇, INC. 1916.67 07/06/98 3833.34 1916.67 1916.67
*** ELEC INCL 194.25 524.67 194.25 194.25 136.17
*** R/E TAX 8.02 8.02 8.02
*** ▇▇▇▇▇▇ WAG 25.25 50.50 25.25 25.25
*** NSF CK CHG 100.00 50.00 25.00 25.00
*** LATE FEE 112.65 20.10 19.80 20.10 52.65
*** WINDOW CLN 29.30 29.30
*** ▇▇▇▇▇/CLNG 129.66 388.98 129.66 129.66 129.66
-------- -------- -------- -------- -------- --------
LATE: 10 DYS 18% OR MAX 5047.46 2273.85 2285.93 335.63 45.10 106.95
▇▇▇-▇▇▇ ▇▇▇ MAINETTI CANADA INC. 3195.00 07/02/98 3195.00 3195.00
*** ELEC INCL 319.50 319.50 319.50
*** R/E TAX 11.15 11.15 11.15
*** ▇▇▇▇▇▇ WAG 41.47 41.47 41.47
*** LATE FEE 9.00 9.00
*** ▇▇▇▇▇/CLNG 213.00 213.00 213.00
*** STORAGE 165.00 165.00 165.00
-------- -------- --------
LATE: 10 DYS 18% OR MAX 3954.12 3954.12 9.00
▇▇▇-▇▇▇ ▇▇▇ BRIGATA INT'L INC. 3946.58 07/07/98 3946.58 3946.58
*** ELEC INCL 910.75 910.75 910.75
*** ▇▇▇▇▇▇ WAG 376.35 376.35 376.35
*** ▇▇▇▇▇/CLNG 576.80 576.80 576.80
-------- --------
LATE: 10 DAYS 18% OR MORE 5810.48 5810.48
▇▇▇-▇▇▇ ▇▇▇ QUADRA LLC 5303.67 07/21/98 5303.67 5303.67
*** ELEC INCL 568.25 568.25 568.25
*** R/E TAX 23.00 23.00 23.00
*** ▇▇▇▇▇▇ WAG 73.76 73.76 73.76
*** LATE FEE 6.09 5.10 .99
*** ▇▇▇▇▇/CLNG 378.83 378.83 378.83
-------- -------- -------- --------
6353.60 6347.51 5.10 .99
▇▇▇-▇▇▇ ▇▇▇ LANE ▇▇▇▇▇▇, INC. 4434.27 4434.27 4434.27
*** ELEC INCL 785.50 532.10 532.10
*** ▇▇▇▇▇/CLNG 523.67 354.77 354.77
-------- --------
5321.14 5321.14
▇▇▇-▇▇▇ ▇▇▇ MI-DOR REALTY CORP. 5208.00 13170.76 08/05/98 5208.00 5208.00
*** ELEC INCL 312.50 312.50 312.50
*** ▇▇▇▇▇▇ WAG 739.88 739.88 739.88
*** LATE FEE 340.95 56.70 57.90 57.30 169.05
*** ▇▇▇▇▇/CLNG 325.00 325.00 325.00
-------- -------- -------- -------- -------- --------
LATE: 10 DYS/LSSR 18%/MAX 6926.33 6585.38 56.70 57.90 57.30 169.05
248-300 ENT5&6 ▇▇▇▇▇▇ A.S.L. LTD 81332.00 07/06/98 81332.00 81332.00
*** ▇▇▇▇▇▇ WAG 2626.35 2626.35 2626.35
*** ADD'L RENT 3388.83 3388.83 3388.83
-------- --------
87347.18 87347.18
▇▇▇-▇▇▇ ▇▇▇▇ S.A. (USA), INC. 5163.58 07/09/98 5163.58 5163.58
*** ELEC INCL 539.75 539.75 539.75
*** ▇▇▇▇▇/CLNG 205.10 205.10 205.10
-------- --------
5908.43 5908.43
▇▇▇-▇▇▇ ▇▇▇▇ U-GIRL, INC. 07/02/98 .00
*** ELEC INCL 194.50 179.50 179.50
*** SECURITY 15.00 15.00
*** ▇▇▇▇▇/CLNG 129.67 129.67 129.67
-------- -------- --------
324.17 309.17 15.00
▇▇▇-▇▇▇ ▇▇▇▇ MARCOROSSI USA, INC. 4850.00 07/07/98 4850.00 4850.00
*** ELEC INCL 485.00 485.00 485.00
*** ▇▇▇▇▇/CLNG 323.33 323.33 323.33
-------- --------
5658.33 5658.33
▇▇▇-▇▇▇ ▇▇▇▇ PRODUCTION MAKERS, INC. 07/13/98 .00
*** ELEC INCL 737.00 737.00 737.00
*** ▇▇▇▇▇/CLNG 491.33 491.33 491.33
-------- --------
1228.33 1228.33
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ COMPANY 6841.67 07/15/98 6841.67 6841.67
*** ELEC INCL 641.75 641.75 641.75
*** R/E TAX 235.71 235.71 235.71
*** ▇▇▇▇▇▇ WAG 791.49 791.49 791.49
*** LATE FEE 37.20 37.20
*** STORAGE 210.00 210.00 210.00
-------- -------- --------
8757.82 8720.62 37.20
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 11769.33 07/14/98 11769.33 11769.33
*** ELEC INCL 885.83 885.83 885.83
*** R/E TAX 1215.25 1215.25 1215.25
*** LATE FEE 347.50 68.40 279.17
*** ▇▇▇▇▇/CLNG 300.00 300.00 300.00
-------- -------- -------- --------
14517.98 14170.41 68.40 279.17
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ INC. 4770.00 07/14/98 4770.00 4770.00
*** ELEC INCL 477.00 477.00 477.00
*** ▇▇▇▇▇▇ WAG 410.57 410.57 410.57
*** LATE FEE 144.14 28.35 115.79
*** ▇▇▇▇▇/CLNG 200.00 200.00 200.00
-------- -------- -------- --------
6001.71 5857.57 28.35 115.79
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, INC. 1500.00 07/02/98 1500.00 1500.00
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC. 2472.00 07/17/98 2472.00 2472.00
*** ELEC INCL 240.00 240.00 240.00
*** ▇▇▇▇▇▇ WAG 259.77 259.77 259.77
*** LATE FEE 15.13 15.13
*** ▇▇▇▇▇/CLNG 151.79 151.79 151.79
-------- -------- --------
3138.69 3123.56 15.13
▇▇▇-▇▇▇ ▇▇▇▇ FASHION LAB LTD. 3525.00 07/13/98 3525.00 3525.00
*** ELEC INCL 352.50 352.50 352.50
*** ▇▇▇▇▇▇ WAG 381.53 581.53 381.53
*** ▇▇▇▇▇/CLNG 235.00 235.00 235.00
-------- --------
4494.03 4494.03
248-477 1400-2NASH INTERN'L GROUP LTD 7167.50 06/24/98 14335.00 7167.50 7167.50
*** ELEC INCL 716.75 1433.50 716.75 716.75
*** ▇▇▇▇▇▇ WAG 296.19 592.38 296.19 296.19
*** LATE FEE 165.78 58.56 34.02 73.20
*** ▇▇▇▇▇/CLNG 344.13 688.26 344.13 344.13
-------- -------- -------- -------- --------
17214.92 8524.57 8583.13 34.02 73.20
▇▇▇-▇▇▇ ▇▇▇▇ ABC INTERNATIONAL 4141.00 07/24/98 4141.00 4141.00
*** ELEC INCL 451.75 1355.25 451.75 903.50
*** ▇▇▇▇▇▇ WAG 41.50 41.50 41.50
*** LATE FEE 90.45 90.45
*** ▇▇▇▇▇/CLNG 286.10 858.30 286.10 572.20
-------- -------- -------- --------
6486.50 4920.35 1475.70 90.45
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ INTERN'L GROUP LTD 1666.67 06/24/98 3333.34 1666.67 1666.67
*** ELEC INCL 319.75 639.50 319.75 319.75
*** ▇▇▇▇▇▇ WAG 132.13 264.26 132.13 132.13
*** LATE FEE 43.52 15.36 8.96 19.20
*** ▇▇▇▇▇/CLNG 127.89 255.78 127.89 127.89
-------- -------- -------- -------- --------
4536.40 2246.44 2261.80 8.96 19.20
▇▇▇-▇▇▇ ▇▇▇▇ THE FASHION SERVICE INC. 3500.00 4628.92 08/03/98 3500.00 3500.00
*** ELEC INCL 713.00 713.00 713.00
*** ▇▇▇▇▇▇ WAG 415.92 415.92 415.92
*** LATE FEE 159.60 39.90 39.90 39.90 39.90
-------- -------- -------- -------- -------- --------
4788.52 4628.92 39.90 39.90 39.90 39.90
▇▇▇-▇▇▇ ▇▇▇▇ ROSEBAR TEXTILE CO., INC. 3140.00 07/03/98 3140.00 3140.00
*** ELEC INCL 314.00 314.00 314.00
*** ▇▇▇▇▇▇ WAG 129.76 129.76 129.76
*** ▇▇▇▇▇/CLNG 79.55 79.55 79.55
-------- --------
3663.31 3663.31
▇▇▇-▇▇▇ ▇▇▇▇ D.Z. TRADING INC. 8792.50 07/10/98 8792.50 8792.50
*** ELEC INCL 879.25 879.25 879.25
*** ▇▇▇▇▇▇ WAG 756.80 756.80 756.80
-------- --------
10428.55 10428.55
▇▇▇-▇▇▇ ▇▇▇▇ MONACO APPAREL, INC. 5142.50 07/10/98 5142.50 5142.50
*** ELEC INCL 514.25 514.25 514.25
*** ▇▇▇▇▇▇ WAG 893.63 893.63 893.63
*** ▇▇▇▇▇/CLNG 325.61 325.61 325.61
*** STORAGE 350.00 350.00 350.00
-------- --------
7225.99 7225.99
▇▇▇-▇▇▇ ▇▇▇▇ M.J.F. IMPORTS INC. 5616.00 5616.00 08/05/98 .00
*** ELEC INCL 624.00 624.00 .00
*** R/E TAX 25.09 25.09 25.09
*** NSF CK CHG 25.00 25.00
*** ▇▇▇▇▇/CLNG 416.00 416.00 .00
*** STORAGE 200.00 200.00 .00
-------- -------- --------
50.09 25.09 25.00
▇▇▇-▇▇▇ ▇▇▇▇ J&J CONTRACT SERVICES, INC. 07/06/98 .00
*** ELEC INCL 448.75 448.75 448.75
--------- --------
448.75 448.75
▇▇▇-▇▇▇ ▇▇▇▇ AMERICAN EXPRESS FASHIONS, LT 2577.50 06/26/98 5155.00 2577.50 2577.50
*** ELEC INCL 257.75 515.50 257.75 257.75
*** ▇▇▇▇▇▇ WAG 33.46 66.92 33.46 33.46
*** LEGAL FEE 538.06 347.95 190.11
*** LATE FEE 162.43 28.50 27.60 27.30 79.03
*** ▇▇▇▇▇/CLNG 98.00 196.00 98.00 98.00
-------- -------- -------- -------- -------- --------
LATE CHG: 18% OR MAX - 10 DY 6633.91 2966.71 2995.21 375.55 27.30 269.14
▇▇▇-▇▇▇ ▇▇▇▇ LA SILHOUETTE APPAREL USA INC 1976.08 07/01/98 1976.08 1976.08
*** ELEC INCL 257.75 257.75 257.75
*** ▇▇▇▇▇▇ WAG 221.85 221.85 221.85
*** ▇▇▇▇▇/CLNG 163.00 163.00 163.00
-------- --------
2618.68 2618.68
▇▇▇-▇▇▇ ▇▇▇▇ SINGER FASHION GROUP, INC. 6645.00 07/13/98 6645.00 6645.00
*** ELEC INCL 675.00 675.00 675.00
*** ▇▇▇▇▇▇ WAG 719.23 719.23 719.23
*** LATE FEE 88.65 52.80 35.85
*** ▇▇▇▇▇/CLNG 348.33 348.33 348.33
-------- -------- -------- --------
8476.21 8387.56 52.80 35.85
▇▇▇-▇▇▇ ▇▇▇▇ M.E. ▇▇▇▇ COMPANY INC. 3787.50 07/06/98 3787.50 3787.50
*** MTR/SPKL 18.00 18.00 18.00
*** ▇▇▇▇▇▇ WAG 447.62 447.62 447.62
-------- --------
4253.12 4253.12
▇▇▇-▇▇▇ ▇▇▇▇ CASUAL CORNER GROUP, INC. 387.50 762.08 08/05/98 .00
*** ELEC INCL 105.08 387.50 387.50
*** ACCESS CRD 105.00 .00
*** ▇▇▇▇▇/CLNG 258.34 508.07 258.34 358.34
-------- --------
645.84 645.84
▇▇▇-▇▇▇ ▇▇▇▇ FABRIC TEAM USA, INC. 3775.16 07/13/98 3775.16 3775.16
*** ELEC INCL 364.75 364.75 364.75
*** R/E TAX 14.64 14.64 14.64
*** ▇▇▇▇▇/CLNG 243.16 243.16 243.16
-------- --------
10 DAYS - 18% OR MAX 4397.71 4397.71
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ STUDIO INC. 800.00 07/06/98 800.00 800.00
*** ELEC INCL 75.00 75.00 75.00
*** ▇▇▇▇▇▇ WAG 30.99 30.99 30.99
*** ▇▇▇▇▇/CLNG 47.50 47.50 47.50
-------- --------
953.49 953.49
▇▇▇-▇▇▇ ▇▇▇▇ MARC WEAR, INC. 7558.75 07/10/98 7558.75 7558.75
*** ELEC INCL 821.00 821.00 821.00
*** ▇▇▇▇▇▇ WAG 532.61 532.61 532.61
*** ▇▇▇▇▇/CLNG 437.48 437.48 437.48
-------- --------
9349.84 9349.84
▇▇▇-▇▇▇ ▇▇▇▇ KATESCORP (US) INC. 4230.00 07/23/98 4230.00 4230.00
*** ELEC INCL 423.00 1548.32 423.00 423.00 423.00 279.32
*** R/E TAX 17.08 17.08 17.08
*** ▇▇▇▇▇▇ WAG 54.91 164.73 54.91 54.91 54.91
*** LATE FEE 171.30 42.90 42.90 42.90 42.90
*** WINDOW CLN 51.83 51.83
*** ADD'L RENT 12833.68 12833.68
*** ▇▇▇▇▇/CLNG 282.00 1128.00 282.00 282.00 282.00 282.00
-------- -------- -------- -------- -------- --------
20144.94 5006.99 802.81 802.81 802.81 12928.41
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, INC. 2500.00 07/07/98 5403.25 2500.00 2500.00 403.25
*** ELEC INCL 375.00 810.50 375.00 375.00 60.50
*** R/E TAX 14.99 14.99 14.99
*** NSF CK CHG 25.00 25.00
*** LATE FEE 114.60 27.00 27.00 33.60 27.00
*** ▇▇▇▇▇/CLNG 250.00 500.00 250.00 250.00
-------- -------- -------- -------- -------- --------
6868.34 3139.99 3152.00 490.75 33.60 52.00
▇▇▇-▇▇▇ ▇▇▇▇ ME & YOU 1833.33 06/18/98 3666.66 1833.33 1833.33
*** ELEC INCL 250.00 500.00 250.00 250.00
*** ARREARS AG 2835.45 5670.90 2835.45 2835.45
*** LATE FEE 70.08 26.28 43.80
*** ▇▇▇▇▇/CLNG 166.66 333.32 166.66 166.66
-------- -------- -------- --------
10240.96 5085.44 5111.72 43.80
▇▇▇-▇▇▇ ▇▇▇▇ SEABOARD ATLANTIC GARMENTS IN 2312.50 07/13/98 2312.50 2312.50
*** ELEC INCL 231.50 231.50 231.50
*** ▇▇▇▇▇▇ WAG 30.02 30.02 30.02
*** ▇▇▇▇▇/CLNG 146.45 146.45 146.45
-------- --------
LATE: 18% OR MAX - 10 DAYS 2720.22 2720.22
▇▇▇-▇▇▇ ▇▇▇▇ HYACK AMERICA, INC. 6712.50 07/06/98 6712.50 6712.50
*** ELEC INCL 671.25 671.25 671.25
*** R/E TAX 27.18 27.18 27.18
*** ▇▇▇▇▇▇ WAG 87.13 87.13 87.13
*** ▇▇▇▇▇/CLNG 268.50 268.50 268.50
-------- --------
7766.56 7766.56
▇▇▇-▇▇▇ ▇▇▇▇ SPORT-ELLE, INC. 3500.00 07/13/98 3500.00 3500.00
*** ELEC INCL 350.00 350.00 350.00
*** R/E TAX 14.29 14.29 14.29
*** ▇▇▇▇▇▇ WAG 45.43 45.43 45.43
*** LATE FEE 128.81 25.99 102.82
-------- -------- -------- --------
LATE: 10 DYS 12% OR MAX 4038.53 3909.72 25.99 102.82
248-600 EN 19 1412 PAVILION SUITES, INC. 33333.34 07/22/98 43429.52 33333.34 10096.18
*** ELEC METER 3237.16 2782.05 455.11
-------- -------- -------- --------
46666.68 33333.34 12878.23 455.11
▇▇▇-▇▇▇ ▇▇▇▇ KORAM INT'L N.Y. INC. 3500.00 07/09/98 3500.00 3500.34
*** ELEC METER 350.00 350.00 350.00
*** ▇▇▇▇▇▇ WAG 301.26 221.35 301.26
*** ▇▇▇▇▇/CLNG 221.35 221.35 221.35
--------- ---------
4372.61 4372.61
▇▇▇-▇▇▇ ▇▇▇▇ GREENWAVE INC. 2250.00 07/17/98 2250.00 2250.00 10.88
*** LATE FEE 10.88 ________ _____
2260.88 2250.00 10.88
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ INTERNATIONAL GROUP, LTD. 3211.50 06/24/98 6423.00 3211.50 3211.50
*** PORT WAG 69.48 138.96 69.48 69.48
*** LATE FEE 67.86 14.29 24.00 13.86 30.00
*** ▇▇▇▇▇/CLNG 211.09 422.18 211.09 211.09
------ ------- ------- ------ -----
7052.00 3492.07 211.09 13.86 30.00
▇▇▇-▇▇▇ ▇▇▇▇ 1S. F.H., LTD. .00
*** ELEC INCL 876.00 1266.00 876.00 390.00
*** LATE FEE 187.70 187.70
*** ▇▇▇▇▇/CLNG 50.71 50.71
------- ------- ------- ------
1504.41 876.00 390.00 238.41
▇▇▇-▇▇▇ ▇▇▇▇ LEAD SPORTSWEAR, L.L.C. 2277.00 07/07/98 2277.00 2277.00
*** ELEC INCL 379.50 379.50 379.50
*** ▇▇▇▇▇▇ WAG 49.26 49.26 49.29
*** ▇▇▇▇▇/CLNG 253.00 253.18 253.00
------- -------
LATE: 10 DYS 18% OR MAX 2958.76 2958.76
▇▇▇-▇▇▇ ▇▇▇▇ EXCEL APPAREL, INC. 3587.50 07/07/98 3587.50 3587.50
*** ELEC INCL 287.50 287.50 287.50
*** ▇▇▇▇▇/CLNG 181.83 181.83 181.83
------- -------
4056.83 4056.83
▇▇▇-▇▇▇ ▇▇▇▇ JOROBI INC. 11452.58 07/06/98 22905.16 11452.58 11452.58
*** ELEC INCL 1184.75 2369.50 1184.75 1184.75
*** ▇▇▇▇▇▇ WAG 367.18 734.34 367.18 367.16
*** LATE FEE 129.96 111.30 18.66
------- ------- ------- ------
LATE: 10 DYS 18% OR MAX 26138.96 13004.51 13115.79 18.66
248-662 STEILMANN, INC. -- .00
*** SECURITY 15320.54 15320.54
--------- --------
15320.54 15320.54
▇▇▇-▇▇▇ ▇▇▇▇ SAN SIMEON INC. 13000.00 07/06/98 13000.00 13000.00
*** ELEC INC. 1606.25 1606.25 1606.25
*** ▇▇▇▇▇▇ WAG 2164.37 2164.37 2164.37
*** ARREARS AG 24150.51 10733.56 13416.95
*** LATE FEE 91.80 91.80
*** ▇▇▇▇▇/CLNG 1015.87 1015.87 1015.87
*** STORAGE 200.00 200.00 200.00
------- -------- -------- --------
42228.80 17986.49 10733.56 13508.75
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ TEXTILES, INC 3456.25 07/23/98 -230.42 -230.42
*** ELEC INCL 276.50 276.50
*** ▇▇▇▇▇/CLNG 184.33 184.33
------- -------
230.41 230.41
▇▇▇-▇▇▇ ▇▇▇▇ GLOBAL APPAREL MGMT. INC. 7906.25 07/14/98 7906.25 7906.25
*** ELEC INCL 853.75 853.75
*** LATE FEE 34.86 34.86
------- ------- ------
8794.86 8760.00 34.86
▇▇▇-▇▇▇ ▇▇▇▇ LANE ▇▇▇▇▇▇ INC. 16162.50 07/06/98 16162.50 16162.50
*** ELEC INCL 1804.75 1804.75 1804.75
*** R/E TAX 948.10 948.10 948.10
*** ▇▇▇▇▇▇ WAG 2808.61 2808.61 2801.61
*** ▇▇▇▇▇/CLNG 1020.47 1020.47 1020.47
-------- --------
***** VACANCY PENDING ***** 22744.43 22744.43
▇▇▇▇▇▇▇ FAX#▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇ TOPTRANS CORP. 4800.00 07/06/98 4800.00 4800.00
*** ELEC INCL 450.00 450.00 450.00
*** WTR/SPKL 20.00 20.00 20.00
*** ▇▇▇▇▇▇ WAG 116.25 116.25 116.25
*** ▇▇▇▇▇/CLNG 244.31 244.31 244.31
------- -------
5630.56 5630.56
BUILDING 248 TOTALS: ARREARS 95769.26 CURR.CHG 476832.82 644467.81 74504.21 2592.31
COUNT: 60 PREPAIDS -3471.25 PAYMENTS 69361.16 PPD -230.42 465819.40 18741.28 82580.19
---------
644237.39
(table continued)
TENANT COUNTERS: --1-30-- --31-60-- --61-90-- --91-120----120+--
27 1 9 23
------------------------------------------------------------------------------------------------------------------------------------
CORPORATION TOTALS AGENT:** --1-30-- --31-60-- --61-90-- --91-120-- --120+--
CURRENT RESIDENTS: 644237.39 465819.40 74504.21 18741.28 2592.31 82580.19
PRIOR RESIDENTS: .00 .00 .00 .00 .00 .00
--------- -------- -------- -------- --------
TOTAL ARREARS: 644237.39 465819.40 74504.21 18741.28 2592.31 82580.19
------------------------------------------------------------------------------------------------------------------------------------
TENANT COUNTERS: CURRENT TENANTS-- 27 1 9 23
PRIOR TENANTS--
-------- ------- -------- --------- -------
GRAND TOTALS: 27 1 9 23
GRAND TOTALS ARREARS REPORT AGENT: ** 8/ 5/98
BASE OTHER TOTAL DUE --CURR-- ---30--- ---60--- ---90--- --120---
47832.82 95769.26 644237.39 465819.40 74504.21 18741.28 2592.31 82580.19
--- PREPARED FOR --- FASHION GALLERY PAVILION --PREPARED BY ---
FASHION GALLERY OWNER LLC AGED ARREARS REPORT THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ FOR PERIOD ENDED 8/ 5/98
AGENT: FASHION GALLERY BUILDING
BASE CURRENT LAST -T0TAL- - 1-30 ---- 31-60 --- 61-90 -- 91-120 -- 121+ -
BLD-TEN UNIT RESIDENT NAME CHARGES PAYMENTS PAY DATE AMT DUE AUG '98 JUL '98 JUN '98 MAY '98 APR '98
▇▇▇-▇▇▇ ▇▇▇▇ DKR GROUP LTD. 1050.00 07/21/98 1050.00 1050.00
*** COPIES .50 .30 .20
------- ------- ------- -------
1050.50 1050.00 .30 .20
▇▇▇-▇▇▇ ▇▇▇▇ INTERNATIONAL TEXTILE SOURCIN 1300.00 07/24/98 1300.00 1300.00
***COPIES 24.80 18.60 6.20
***FAXING 27.60 27.60
------- ------- ------- -------
1352.40 1300.00 46.20 6.20
▇▇▇-▇▇▇ ▇▇▇▇ MFM INTERNATIONAL INC. 2500.00 07/07/98 2500.00 2500.00
***COPIES 37.40 27.60 9.80
***FAXING .30 .30
------- ------- ------- ------- -------
2537.70 2500.00 27.60 9.80 .30
▇▇▇-▇▇▇ ▇▇▇▇ NORSTAN APPAREL SHOPS,INC 1175.00 1175.00 08/05/98 .00
***SECURITY 50.00 50.00
***COPIES 8.80 1.60 3.60 3.60
------- ------- ------- ------
58.80 1.60 3.60 53.60
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TEXTILE PRINTING IN 2300.00 2300.00 08/04/98 .00
/1 ***COPIES 15.50 15.50
------- -------
15.50 15.50
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ CORP. 1550.00 07/16/98 877.07 877.07
***COPIES 43.30 43.30
------- ------- -------
920.37 877.07 43.30
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ OF CALIFORNIA 1300.00 07/21/98 1300.00 1300.00
***COPIES 1.20 1.20
***FAXING 6.30 1.50 3.00 1.80
------- ------- ------- ------- -------
1307.50 1300.00 2.70 3.00 1.80
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SILK ▇▇▇▇▇, INC. 1000.00 07/08/98 1000.00 1000.00
***COPIES 2.20 2.20
------- ------- -------
1002.20 1000.00 2.20
146-724 1924 BARTFAI TEXTILE AGENCIES LTD 700.00 07/07/98 .00
***COPIES 25.10 25.10
------- -------
25.10 25.10
▇▇▇-▇▇▇ ▇▇▇▇ REVIVAL WEAR INC. 675.00 07/21/98 675.00 675.00
▇▇▇-▇▇▇ ▇▇▇▇ MINX INTERNATIONAL, INC. 850.00 850.00 08/03/98 .00
***COPIES .20 .20
***FAXING .30 .30
------- ------- ------
.50 .20 .30
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, INC. 725.00 07/17/98 725.00 725.00
***COPIES .10 .10
------- ------- -------
725.10 725.00 .10
▇▇▇-▇▇▇ ▇▇▇▇ FERDINO APPAREL INC. 625.00 07/01/98 1250.00 625.00 625.00
***COPIES 1.70 .80 .90
***FAXING 13.40 4.50 5.10 3.80
***TYPING 6.00 6.00
------- ------- ------- ------- -------
1271.10 625.00 636.30 6.00 3.80
▇▇▇-▇▇▇ ▇▇▇▇ SEACLIFF INDUSTRIES 1700.00 07/02/98 1700.00 1700.00
***COPIES 2.90 2.90
------- ------- -------
1702.90 1700.00 2.90
▇▇▇-▇▇▇ ▇▇▇▇ GIAN INDUSTRIES, 600.00 600.00 08/03/98 1200.00 600.00 600.00
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ 1600.00 07/14/98 1600.00 1600.00
***COPIES 26.30 26.30
------- ------- -------
1626.30 1600.00 26.30
▇▇▇-▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ BUYING SERVICE 650.00 07/10/98 650.00 650.00
***COPIES 3.70 .60 3.10
------- ------- ------- -------
653.70 650.00 .60 3.10
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 675.00 07/01/98 675.00 675.00
***MISC. 2.00 2.00
***COPIES 8.70 4.60 4.10
***FAXING .90 .60 .30
------- ------- ------- ------
686.60 675.00 7.20 4.40
▇▇▇-▇▇▇ ▇▇▇▇ BELLE INTERNATIONAL 1300.00 07/14/98 1300.00 1300.00
***COPIES 8.20 8.20
------- ------- -------
1308.20 1300.00 8.20
▇▇▇-▇▇▇ ▇▇▇▇ FORTUNE FASHIONS INC. 1600.00 07/07/98 1600.00 1600.00
***FAXING .60 .60
------- ------- -------
1600.60 1600.00 .60
▇▇▇-▇▇▇ ▇▇▇▇ SEA CLIFF INDUSTRIES, INC. 450.00 07/02/98 450.00 450.00
***COPIES 6.60 6.10 .50
------- ------- ------- -------
456.60 450.00 6.10 .50
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LTD. 2250.00 07/13/98 2250.00 2250.00
***COPIES 2.60 .50 1.00 1.10
------- ------- ------- ------- -------
2252.60 2250.00 .50 1.00 1.10
246-768 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ PRODUCTIONS INC 525.00 07/01/98 525.00 525.00
▇▇▇-▇▇▇ ▇▇▇▇ AVENIR 1050.00 07/17/98 1050.00 1050.00
***COPIES .60 .60
------- ------- -------
1050.60 1050.00 .60
▇▇▇-▇▇▇ ▇▇▇▇ JANAKI ART & DESIGN INC. 800.00 07/10/98 800.00 800.00
***COPIES 1.40 .50 .90
------- ------- ------- -------
801.40 800.00 .50 .90
▇▇▇-▇▇▇ ▇▇▇▇ SEA CLIFF INDUSTRIES, INC. 1100.00 07/02/98 1100.00 1100.00
▇▇▇-▇▇▇ ▇▇▇▇ QUALITY KNITTING(CANADA)LTD. 2200.00 07/10/98 2200.00 2200.00
/7 ***COPIES 72.40 72.40
***PHONE/VEND 200.00 200.00
------- ------- ------- -------
2472.40 2200.00 272.40
BUILDING 246 TOTALS: ARREARS 2041.70 CURR.CHG 32250.00 28378.67 1727.00 12.00
COUNT: 27 PREPAIDS -1372.93 PAYMENTS 13075.40 26552.07 29.60 58.00
(table continued)
TENANT COUNTERS: --1-30-- --31-60-- --61-90-- --91-120----120+--
3 12 3 7 2
------------------------------------------------------------------------------------------------------------------------------------
CORPORATION TOTALS AGENT:** --1-30-- --31-60-- --61-90-- --91-120-- --120+--
CURRENT RESIDENTS: 38378.67 26552.07 1727.00 29.60 12.00 58.00
PRIOR RESIDENTS: .00 .00 .00 .00 .00 .00
--------- -------- -------- -------- --------
TOTAL ARREARS: 38378.67 26552.07 1727.00 29.60 12.00 58.00
------------------------------------------------------------------------------------------------------------------------------------
TENANT COUNTERS: CURRENT TENANTS-- 3 12 3 7 2
PRIOR TENANTS--
-------- ------- -------- --------- -------
GRAND TOTALS: 3 12 3 7 2
GRAND TOTALS ARREARS REPORT AGENT: ** 8/ 5/98
BASE OTHER TOTAL DUE --CURR-- ---30--- ---60--- ---90--- --120---
32250.00 2041.70 28378.67 26552.07 1727.00 29.60 12.00 58.00
Schedule 9
Litigation
Law Offices
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ASSOCIATES, P.C.
34th FLOOR, THE FRENCH BUILDING
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
----------------
(▇▇▇) ▇▇▇-▇▇▇▇
FAX. (▇▇▇) ▇▇▇-▇▇▇▇; OR (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
August 7, 1998
VIA FACSIMILE: 212-302-7033
▇▇▇▇ Camera, Property Manager
Fashion Gallery Owners, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Ms. Camera:
As per your request, the status of the four (4) matters currently being
handled are as follows:
- 494.P54//Fashion Gallery Owners, LLC v. Mi-Kor Realty Corp.
7/29/98 Five Day Notice Served
8/6/98 five days expired. You informed ▇▇. ▇▇▇▇▇▇▇ that
Tenant had paid. Nevertheless, I am forwarding a notice to
proceed to complete our records.
- 494.P57/Fashion Gallery Owners, LLC v. Broadway Stationery Company,
Inc., et al. New York County Index No. L&T87935/98.
7/8/98 Ten Day Notice served
7/19/98 10 days expired
7/20/98 ▇▇▇▇ Camera advised to proceed
7/21/98 Prepared Notice of Petition and Petition, arranged for
purchase of index no.
7/23/98 Received index no.
7/24/98 Sent Notice of Petition and Petition to process server,
by hand
7/27/98 Notice of Petition and Petition served, received
telephone call from Tenant's attorney
7/29/98 Notice of Petition with affidavit of service given to
messenger for filing with Court Clerk
8/5/98 Entered into Stipulation extending time to Answer until
8/7/98, in return for Tenant's consent to jurisdiction; arranged
for Stipulation to be filed with the Court, and to be informed of
Court date.
- 494.P59/Fashion Gallery Owners, LLC ▇. ▇▇▇▇▇ Corp. Inc., et al, New
York County Index No. L&T 87934/98
7/8/98 Ten Day Notice served
7/19/98 Ten days expired
7/20/98 ▇▇▇▇ Camera advised to proceed
7/21/98 Prepared Notice of Petition and Petition, arranged for
purchase of index no.
7/23/98 Received index no.
7/24/98 Sent Notice of Petition and Petition to process server,
by hand
7/27/98 Notice of Petition and Petition served
7/29/98 Notice of Petition with affidavit of service given to
messenger for filing with Court Clerk
8/4/98 Five days from service of Notice of Petition and Petition
expired, instructed by ▇▇▇▇ Camera to proceed
8/5/98 Marshal letter delivered by hand
8/6/98 Marshal letter delivered by hand
8/27/98 On this date we will call Marshal's office to find out
status of warrant request (it takes at least three weeks to
receive "good warrant" from date of Marshal letter.)
- 494.P60/Fashion Gallery Owners, LLC v. ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, Inc.
7/9/98 Ten Day Notice served
7/20/98 Ten days expired. Instructed by ▇▇▇▇ Camera to "wait
for further instructions"
If you have any further questions, please do not hesitate to contact me.
Thank you.
Very truly yours,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Legal Assistant
[LOGO] ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Co., Inc.
Founded 1860
Insurance Specialists
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(212) 603-0200
March 16, 1998
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Associates, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Fashion Gallery Owners LLC
Package Policy # 5031600129
Boiler & Machinery Policy # FMP-NY-2214053-00
Umbrella Policy # XLB-37690653
Dear ▇▇▇▇:
In accordance with our telephone conversation, please note that there are no
open or pending claims on the captioned policies, which have been in effect with
our office since June 25, 1997.
We trust that you will find this in order. Please do not hesitate to contact our
office with any questions that you may have.
Cordially yours,
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CO., INC.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Account Executive
CT/mys
BY Fax @▇▇▇-▇▇▇▇
Total of pages: One
SCHEDULE 10
EMPLOYMENT AGREEMENTS
SCHEDULE 10
EMPLOYMENT AGREEMENTS
Collective Bargaining Agreement with Local 32B-32J Service Employees
International Union
SCHEDULE 11
MANAGEMENT EMPLOYEES
SCHEDULE 11
MANAGEMENT EMPLOYEES
EMPLOYEE NAME
----------------------------------------------------------------
▇▇▇▇ Camera
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Part-Time)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇.
FASHION GALLERY PAVILLION SUITES EMPLOYEES
----------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
SCHEDULE 1
PRO FORMA TITLE POLICY
LAWYERS TITLE
INSURANCE CORPORATION
NATIONAL HEADQUARTERS
RICHMOND, VIRGINIA
OWNER'S POLICY
SCHEDULE B POLICY NUMBER
-------------
EXCEPTIONS FROM COVERAGE PROFORMA
--------
This policy does not insure against loss or damage (and the Company will not pay
costs, attorneys' fees or expenses) which arise by reason of:
-----------------------------------------------------
1. Survey made by ▇▇▇▇ ▇. ▇▇▇▇▇▇ - ▇.▇. ▇▇▇▇▇▇▇, Inc. dated 7/26/97 and
last updated by visual examination on 4/13/98 disclosed the following:
a. Encroachments onto and/or projections over ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇:
Roof coping 0 feet 2 inches
Terra cotta trim 0 feet 8 inches
Metal ledges up to 2 feet 0 inches
Lights 1 foot 0 inches
Show window canopy 3 feet 0 inches
Pilasters up to 0 feet 4 inches
Window ▇▇▇▇▇ 0 feet 2 inches
Brick trim 0 feet 1 inch
Stand pipes 0 feet 4 inches
Metal Step 0 feet 1 inch
Signs up to 5 feet 0 inches
Protective gates 1 foot 3 inches
Thermostat 0 feet 4 inches
Bank depository 0 feet 3 inches
Show window trim 0 feet 1 inch
Iron grating up to 10 feet 0 inches
Iron cellar doors 3 feet 2 inches
Show Window bases up to 0 feet 8 1/2 inches
Granite front up to 0 feet 5 1/4 inches
Metal front up to 0 feet 4 inches
(Continued)
Policy 113 NY LITHO IN U.S.A. ALTA Owner's Policy
035-0-113-3100 with New York Endorsement Modifications
Schedule B (continued)
Title No. LTM-8399-M
Policy No. PROFORMA
b. Encroachments onto and/or projections over Broadway:
Roof coping 0 feet 2 inches
Metal ledges up to 2 feet 0 inches
Pilasters up to 0 feet 4 inches
Window ▇▇▇▇▇ 0 feet 2 inches
Brick trim 0 feet 1 inches
Signs 0 foot 8 inches
Stand pipes up to 1 foot 5 inches
Hose bib 0 feet 4 inches
Show window trim 1 feet 0 inches
Metal Canopy 7 feet 0 inches
Brick trim 0 foot 1 1/4 inches
Metal ledges up to 2 feet 0 inches
Roof coping 0 feet 1 1/4 inches
Show window trim 0 feet 8 inches
Stand pipe 0 feet 4 inch
Coal chute 7 feet 1 inch
Grated areas up to 5 feet 0 inches
Grated area 5 feet 0 inches
Vault 10 feet 0 inches
Metal front up to 1 foot 8 1/2 inches
c. Southerly independent wall of three story brick structure on
premises adjoining on the north encroaches 0 feet 0 1/2 inches
onto premises described herein.
d. Windows, when open, in northerly independent walls of six story
brick structures and seven story brick structure on premises
described herein may project over premises adjoining on the
north.
(Continued)
Schedule B (continued)
Title No. LTM-8399-M
Policy No. PROFORMA
e. Northerly independent wall at roof of six story brick structure
on premises described herein is 0 feet 1/2 inches north of
northerly record line.
f. Projections by and northerly wall of seven story penthouse brick
structure and 17 to 23 story brick structure or premises
described herein over premises adjoining on the north:
Air conditioning unit 1 foot 0 inches
Iron beam 0 feet 3 inches
Air conditioners up to 1 foot 0 inches
Vent hoods up to 2 feet 0 inches
g. Southerly independent wall of three story brick structure on
premises adjoining on the north encroaches 0 feet 0 1/2 inches
onto premises described herein.
h. Metal flue pipe of three story brick structure on premises
adjoining on the north is anchored to the northerly wall and
carried to roof of seven story and penthouse brick structure on
premises described herein.
i. Southerly independent wall of 11 to 22 story brick structure on
premises adjoining on the north encroaches 0 feet 0 3/4 inches
and leans up to 0 feet 2 inches over premises described herein.
j. Present one to 32 story concrete and brick structure on premises
adjoining on the east is under construction and not located.
k. Projections beyond easterly wall of 17 to 23 story brick
structure on premises described herein over premises adjoining on
the east:
▇▇▇▇▇ Rough brick up to 0 feet 6 inches
Windows, when open, may 0 feet 1 inch
project.
2. Terms, covenants, conditions, provisions and agreements contained in
unrecorded lease dated 12/13/89 between The ▇▇▇▇▇▇ ▇▇▇ Companies, Inc.
and ▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates as amended by Amended and Restated First
Amendment to Agreement of Lease dated as of 12/13/89 and the Second
Amendment dated as of 8/1/90 which Lease is affected by the following:
a. Subordination, Non-Disturbance and Attornment Agreement between
New York Life Insurance Company, The ▇▇▇▇▇▇ ▇▇▇ Companies, Inc.
and ▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates dated as of 7/10/90 and recorded
7/11/98 in Reel 1709 page 1230.
(Continued)
Schedule B (continued)
Title No. LTM-8399-M
Policy No. PROFORMA
b. Subordination, Non-Disturbance and Attornment Agreement between
New York Life Insurance Company, The ▇▇▇▇▇▇ ▇▇▇ Companies, Inc.
and ▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates dated as of 12/15/93 and recorded
12/22/93 in Reel 2039 page 18.
Affirmative Insurance to be added regarding rights as tenant
only.
3. Terms, covenants, conditions, provisions and agreements contained in
unrecorded lease dated 12/13/89 between Escada (USA) Inc. and ▇▇▇▇
▇▇▇▇▇▇▇▇ Associates as affected by the following:
a. Subordination, Non-Disturbance and Attornment Agreement between
New York Life Insurance Company, Escada (USA) Inc. and ▇▇▇▇
▇▇▇▇▇▇▇▇ Associates dated as of 7/10/90 and recorded 7/1/90 in
Reel 1709 page 1239.
b. Subordination, Non-Disturbance and Attornment Agreement between
New York Life Insurance Company, Escada (USA) Inc. and ▇▇▇▇
▇▇▇▇▇▇▇▇ Associates dated as of 12/15/93 and recorded 12/22/93 in
Reel 2039 page 27
Affirmative Insurance to be added regarding rights as Tenant
only.
4. Assignment of Lessor's Interest in Lease(s) with Assignment of Rents,
Income and Cash Collateral from ▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates to New York
Life Insurance Company, dated as of 7/10/90 and recorded 7/11/90 in
Reel 1709 page 1172.
5. Assignment of Lessor's Interest in Lease (s) with Assignment of Rents,
Income and Cash Collateral from ▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates to New York
Life Insurance Company, dated as of 12/15/93 and recorded 12/22/93 in
Reel 2039 page 1.
With regard to items 5 and 6:
Assignment of Assignment of Rents, Income and Cash Collateral
from New York Life Insurance Company to Nomura Asset Capital
Corporation dated as of 6/25/97 and recorded 10/29/97 in Reel
2510 page 2149.
As assigned to Green's designee at Closing.
(Continued)
Schedule B (continued)
Title No. LTM-8399-M
Policy No. PROFORMA
6. Assignment of Leases and Rents from Fashion Gallery Owners, LLC to
Nomura Asset Capital Corporation dated as of 6/25/97 and recorded
10/29/97 in Reel 2510 page 2135.
As assigned to Green's designee at Closing.
7. Terms, covenants, conditions, provisions and agreements contained in a
Memorandum dated as of 3/31/98 between Fashion Gallery Owners, LLC and
AZIW, LLC to be recorded.
8. UCC Financing Statement:
a. Debtor : Fashion Gallery Owners, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
Secured Party: Nomura Asset Capital Corporation
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇
File No. : 97PN32843
File Date : 8/5/97
As assigned to Green's designee at Closing
9. The following Notices of Sidewalk violations:
No. Filing Date
21 06/27/62
7893 11/17/66
41322 05/07/87
10. Mortgage (A) made by ▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates to Balcor Real Estate
Finance Inc. in the principal amount of $67,500,000.00 dated 07/10/90
and recorded 07/11/90 in Reel 1709 page 1033.
Assignment of Mortgage from Balcor Real Estate Finance Inc. to New
York Life Insurance Company dated as of 7/10/90 and recorded 7/11/90
in Reel 1709 page 1041.
Mortgage Modification, Extension Spreader and Security Agreement
between ▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates and New York Life Insurance Company
dated as of 7/10/90 and recorded 7/11/90 in Reel 1709 page 1106.
Note and Mortgage Modification and Extension Agreement between ▇▇▇▇
▇▇▇▇▇▇▇▇ Associates and New York Life Insurance Company dated as of
12/15/93 and recorded 12/22/93 in Reel 2038 page 2487.
Assignment of Mortgage from New York Life Insurance Company to Nomura
(Continued)
Schedule B (continued)
Title No. LTM-8399-M
Policy No. PROFORMA
Asset Capital Corporation dated as of June 25, 1997 and recorded
10/29/97 in Rule 2510 page 2077.
Amended and Restated Mortgage, Assignment of Leases and Rents and
Security Agreement between Fashion Gallery Owners, LLC and Nomura
Asset Capital Corporation in the amount of $48,000,000.00 dated as of
June 25, 1997 and recorded 10/29/97 in Reel 2510 page 2090.
As assigned to Green's designee at Closing.
SCHEDULE 2-A
NEW LEASES
SCHEDULE 2-A
PROPOSED LEASES
1 Lease between Fashion Gallery Owners, LLC, as landlord, and The ▇▇▇▇▇▇
▇▇▇ Marketing, Inc., as tenant, for the Entire 3rd Floor as well as a
modification of the existing demised premises as detailed in an
Agreement of Lease dated April 29, 1997.
2 Lease between Fashion Gallery Owners, LLC, as landlord, and ▇▇▇▇▇,
Ltd., as tenant, for the entire 22nd Floor, comprised of approximately
13,331 square feet.
3 Lease between Fashion Gallery Owners, LLC, as landlord, and ▇▇▇▇▇ ▇.,
Inc., as tenant, for Suite 1110, comprised of approximately 4,849
square feet.
SCHEDULE 2-B
TENANT INDUCEMENT COSTS
Schedule 2B
TENANT INDUCEMENTS
PAID TENANT INDUCEMENTS
------------------------------------------------------------------------------------------------------------------------------------
Tenant TI Brokerage Legal Design Other Total
------------------------------------------------------------------------------------------------------------------------------------
S.F.H. Ltd. $84,277.00 $14,913.00 $7,008.00 $106,198.00
Seaboard Atlantic $52,137.00 $11,971.00 $3,470.00 $67,578.00
▇▇▇▇▇▇▇▇ Company(NY) $1,026.00 $5,134.00 $6,160.00
Bugatchi Uomo Apparel $3,084.00 $3,084.00 $6,168.00
Top Trans $9,032.00 $3,600.00 $12,632.00
La Strada $2,255.00 $1,250.00 $3,505.00
Casual Corner $3,875.00 $7,863.00 $3,100.00 $14,838.00
Lane ▇▇▇▇▇▇ Extension $31,420.00 $27,180.00 $6,284.00 $15,867.00 $80,751.00
ABC International $696.00 $3,614.00 $4,310.00
▇▇▇▇ ▇▇▇▇▇▇▇▇ $268.80 $1,920.0 $2,188.80
Fashion Service $588.00 $5,704.00 $6,292.00
Demolition of 18th and 22nd Flrs. $41,790.00 $41,790.00
▇▇▇▇▇▇ Publications $35,606.00
Apparel Productions (Ugirl) $26,788.00
E.S.R./▇▇▇▇▇▇▇ $39,508.00
Production Makers $61,995.00
Four (4) Basement Storage Units $1,548.00
TOTAL PAID $175,819.00 $74,766.80 $41,084.00 $3,084.00 $57,657.00 $517,855.80
------------------------------------------------------------------------------------------------------------------------------------
UNPAID TENANT INDUCEMENTS
------------------------------------------------------------------------------------------------------------------------------------
C.F.D.A. (Signed) $48,563.00 $12,629.00 $3,084.00 $64,276.00
▇▇▇▇▇▇▇ Textile (Signed) $17,834.00 $5,807.00 $2,370.00 $26,011.00
Canex Fashions (Signed) $13,921.00 $4,168.00 $1,850.00 $19,939.00
Lane ▇▇▇▇▇▇ Extension (Signed) $1,616.00 $1,000.00 $2,616.00
▇▇▇▇▇▇▇▇ Company (NY) (Signed) $43,699.00 $8,808.00 $52,507.00
Steilmann, Inc. (Signed) $19,251.00 $11,604.00 $3,348.00 $34,203.00
Arial B. (Lease Out)* $121,225.00 $121,225.00
▇▇▇▇▇▇ ▇▇▇ (Lease Out)* $0.00
▇▇▇▇▇ (Lease Out)* $399,930.00 $399,930.00
TOTAL UNPAID $720,707.00
------------------------------------------------------------------------------------------------------------------------------------
*Brokerage fees have not been determined.
SCHEDULE 3
UNION EMPLOYEES
SCHEDULE 3
UNION EMPLOYEES
EMPLOYEE NAME
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇.
SCHEDULE 4
RENT ROLL
Exhibit S
Modification of ▇▇▇▇▇▇ ▇▇▇ Lease Agreement
------------------------------------------
MODIFICATION OF LEASE AGREEMENT
-------------------------------
MODIFICATION OF LEASE AGREEMENT (this "Agreement") made this ____ day
of August, 1998 between FASHION GALLERY OWNERS, LLC, a New York limited
liability company, having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Landlord") and ▇▇▇▇▇▇ ▇▇▇ MARKETING, INC.
(successor-in-interest to THE ▇▇▇▇▇▇ ▇▇▇ COMPANIES, INC.) having an office at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Tenant").
WHEREAS, Tenant is currently the tenant of the entire Second and
Fourth floors and Storage Room #15 (which space is hereinafter collectively
referred to as the "Original Demised Premises") in the building known as ▇▇▇▇
▇▇▇▇▇▇▇▇ in the County and State of New York (the "Building"), pursuant to
that certain Agreement of Lease dated April 29, 1997 between ▇▇▇▇ ▇▇▇▇▇▇▇▇
Associates (Landlord's predecessor-in-interest) ("Associates"), as landlord
and The ▇▇▇▇▇▇ ▇▇▇ Companies, Inc. (predecessor-ininterest to Tenant), as
tenant (the "Lease"), which Lease is to terminate on its terms on April 30,
2002 (the "Original Expiration Date");
WHEREAS, the parties desire to modify the Lease to, among other
things, add the entire third floor, substantially as shown on the plan annexed
hereto as Exhibit A-1 (which space is hereinafter referred to as the
"Additional Premises") in the Building and to extend the Term, upon the terms
and conditions hereinafter set forth (each capitalized term not specifically
defined herein shall have the same meaning given to it in the Lease).
NOW, THEREFORE, in consideration of the mutual premises and
conditions the parties agree as follows:
1. Modification of Lease. On the later to occur of (i) the
----------------------
date first set forth above as the date upon which this Agreement was executed
and (ii) the "Approval Date" (as defined in Paragraph 15 of this Agreement),
(such later date being hereinafter referred to as, the "Effective Date") the
Lease shall be deemed modified as follows:
A. The Term of the Lease shall be extended to expire at
midnight on the expiration of Lease Year Ten, as defined below (the "Extended
Expiration Date"), or on such earlier date upon which the Term of this Lease
shall expire or be cancelled or terminated pursuant to any of the conditions
or covenants of the Lease or pursuant to law and the Extended Expiration Date
shall be substituted for the Expiration Date, as applicable, in the Lease.
B. With respect to the Additional Premises, "Lease Year One"
shall be deemed to commence on the first day of the calendar month following
the Effective Date and shall end on the last day of the successive twelve
month period. If the Effective Date shall be on the first day of the month,
Lease Year One shall commence on such date and shall end on the day
immediately preceding the first anniversary of the Effective Date. The term
"Lease Year" shall refer to each year of the Term including Lease Year One.
Each succeeding Lease Year after Lease Year One shall run for the successive
twelve month period from the expiration of the preceding Lease Year and shall
be consecutively numbered (i.e., the tenth Lease Year shall be known as Lease
Year Ten). From and after the Original Expiration Date, the provisions of this
Paragraph B shall also apply to the Original Demised Premises.
C. The area of the "Demised Premises", as defined in
the Lease shall consist of all of the Original Demised Premises and the
Additional Premises (substantially as shown on the plan annexed hereto as
Exhibit A-2), and except as specifically provided herein, all references in
the Lease to the "Demised Premises" shall mean the Original Demised Premises
and the Additional Premises.
D. 1. Notwithstanding anything to the contrary contained
herein, Base Annual Rent on account of the Original Demised Premises shall
continue to be due and payable as set forth in the Lease, except that during
the period from the Original Expiration Date through the Extended Expiration
Date, Base Annual Rent payable on account of the Original Demised Premises
shall be as follows: (a) during the period 5/1/02 through the expiration of
Lease Year Four, $1,260,646.00 per annum; (b) for each Lease Year during the
period from the commencement of Lease Year Five through the expiration of
Lease Year Seven, $1,341,978.00 per annum; and (c) for each Lease Year during
the period from the commencement of Lease Year Eight through the Extended
Expiration Date, $1,504,642.00 per annum. Notwithstanding the foregoing, there
shall be no Base Annual Rent, solely on account of the Original Demised
Premises, payable for the two (2) week period immediately prior to the
Original Expiration Date; provided, however, that in the event Tenant is
dispossessed or this Lease is terminated by reason of Tenant's default, the
Base Annual Rent for such period shall be immediately due and payable.
2. This Base Annual Rent solely on account of the
Additional Premises and in addition to the Base Annual Rent for the Original
Demised Premises shall be as follows: (a) for Lease Year One through Lease
Year Two, $589,657.00 per annum; (b) for Lease Year Three through Lease Year
Four, $630,323.00 per annum; (c) for Lease Year Five through Lease Year Seven,
$670,989.00 per annum; and (d) for Lease Year Eight through Lease Year Ten,
$752,321.00 per annum. Notwithstanding the foregoing, there shall be no Base
Annual Rent, solely on account of the Additional Premises (except for the
increase to Base Annual Rent attributable to electricity pursuant to Section
66.01 of this Lease), payable for the period commencing on the Effective Date
and terminating on September 30, 1998; provided, however, that in the event
Tenant is dispossessed or this Lease is terminated by reason of Tenant's
default, the Base Annual Rent for such period shall be immediately due and
payable. Simultaneously with the execution of this Agreement, Tenant has paid
to Landlord, if by check subject to collection, one full month of Base Annual
Rent for the Additional Premises, which amount shall be credited on a per diem
basis toward the payment of the installments of Base Annual Rent first due and
payable hereunder.
E. For purposes of calculating Additional Rent and other
applicable payments for the Additional Premises, the following terms shall
have the following meanings (for purposes of calculating Additional Rent and
other applicable payments for the Original Demised Premises, such terms shall
have the meanings ascribed to them in the Lease):
(i) "Base Tax Year" shall mean the Taxes for
the twelve month fiscal year commencing on
July 11 1998.
(ii) "Tenant's Proportionate Share" shall mean
five and ninety hundredths of one percent
(5.90%).
F. The following provisions shall be added to and
made a part of the Lease:
ARTICLE 66 - COST OF ELECTRICITY FOR ADDITIONAL
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PREMISES
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66.01 Landlord agrees to supply the Additional Premises, as of the
Effective Date, with such electric current as Tenant shall reasonably require
(consistent with the existing electrical capacity contained in the Additional
Premises) for Tenant's wiring facilities and equipment within the Additional
Premises and in consideration thereof, Tenant agrees that the Base Annual Rent
reserved in this Lease shall be increased by the sum of Fifty Thousand Eight
Hundred Thirty-Two and 50/100ths Dollars ($50,832.50) per annum subject to
survey as provided in Section 66.02 hereof (the "Base Charge"). The Base
Charge increase to Base Annual Rent shall in no event be subject to reduction
pursuant to the provisions of this Article, but shall be subject to increase
as hereinafter provided. Landlord shall not be liable in any way to Tenant for
any failure or defect in the supply or character of electric energy furnished
to the Additional Premises not due to the gross negligence or willful
misconduct of Landlord or if the same is changed or is no longer available or
suitable for Tenant's requirements or is interrupted as a result of any cause
not attributable to Landlord.
66.02 (a) Landlord, from time to time during the Term of this Lease,
shall have the right to select a reputable independent electrical engineer or
consultant (the "Consultant") to prepare surveys of the electrical consumption
within the Additional Premises in order to determine whether the Base Charge
for electricity (as the same may have been increased by previous surveys and
determinations) is less than the Electrical Consumption Charge (as defined in
Section 66.03 below) which should be charged to Tenant. If the Base Charge
shall be less than the Electrical Consumption Charge, which the Consultant
determines to be applicable to Tenant then, effective as of the date of the
Consultant's determination, the Base Charge (as the same may have been
previously increased pursuant to the provisions hereof) shall be further
increased by an amount equal to the excess of (i) the then Electrical
Consumption Charge determined to be applicable by the Consultant over (ii) the
Base Charge (plus any previous increases to the Base Charge pursuant to the
provisions hereof). Notwithstanding the foregoing, the first survey shall not
be made during Lease Year One unless Tenant's proposed alterations in the
Additional Premises involve an increase in the existing electrical capacity of
the Additional Premises of more than 110% above the electrical capacity of the
Additional Premises existing as of the Effective Date (of which fact Landlord
shall be the sole judge), and any increase to the Base Charge resulting from
such survey shall be retroactive to the Commencement Date.
(b) Surveys made by the Consultant shall be based
upon the use of such electric current on Business Days, and such other days
and hours when Tenant uses electricity for lighting and for the operation of
the machinery, appliances and equipment used by Tenant in the Additional
Premises.
(c) The cost of the first survey shall be borne by
Landlord. Tenant shall pay the fees of the Consultant making all other surveys
if such survey results in an increase in the Electrical Consumption Charge,
which increase is not caused by an increase in the Electric Rate. The findings
of the Consultant shall be binding and conclusive on Landlord and Tenant;
provided, however, that Tenant may dispute the findings of the Consultant in
accordance with Section 66.08, below.
66.03 The "Electrical Consumption Charge" for electricity consumed by
Tenant within the Additional Premises, as determined by the Consultant, shall
be computed by multiplying the Electric Rate (as defined below) by Tenant's
consumption of electricity as determined by the Consultant. In no event,
however, shall the Electrical Consumption Charge be less than Landlord's
actual cost of acquiring and distributing electricity to Tenant. The term
"Electric Rate" shall mean, at the time in question, the actual cost to
Landlord of acquiring electricity for the Premises, including all surcharges,
taxes, fuel adjustments, taxes regularly passed on to customers by the public
utility, and other sums payable in respect thereof for the supply of
electrical energy to Landlord for the entire Building.
66.04 Tenant's use of electric energy in the Additional Premises
shall not at any time exceed the capacity of any of the electrical conductors
and equipment in, or otherwise serving, the Additional Premises. In order to
insure that such capacity is not exceeded and to avert possible adverse effect
upon the Building's electric service, Tenant shall not, without Landlord's
prior written consent in each instance (which shall not be unreasonably
delayed or withheld), connect any fixtures, appliances or equipment to the
Building's electric distribution system other than ordinary office and
showroom equipment exclusive of major computers, or make any material
alteration or addition to the electric system of the Additional Premises
existing on the Effective Date. Landlord agrees not to unreasonably withhold
or delay its consent to the installation of additional risers to the Premises,
provided that all additional risers or other equipment required therefor shall
be provided by Landlord and the cost thereof shall be paid by Tenant to
Landlord within ten (10) days of demand and provided further, that Landlord
shall have the right to cause a survey of the Premises to be made by the
Consultant, at Tenant's sole cost and expense, to determine the amount of the
increase in the Base Annual Rent to reflect the value to Tenant of the
potential additional electric energy to be made available to Tenant by the
estimated additional capacity of such additional risers of the connected load
of such fixtures, appliances or equipment (measured, in respect of risers, at
their lowest point in the Building). The amount of such increase shall be
determined by the Consultant. Such determination shall be binding and
conclusive upon the parties unless disputed by Tenant within thirty (30) days
of receipt of such Consultant's report. Landlord, its agents and Consultants
may survey the electrical fixtures, appliances and equipment in the Additional
Premises and Tenant's use of electric energy therein from time to time after
the initial survey described above to ascertain whether Tenant is complying
with its obligations under this Section.
66.05 Tenant shall not place a load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to carry
and which is allowed by law, which floor load is 120 lbs/sq. ft. live load.
66.06 Tenant, at its sole cost and expense, shall furnish and
install all replacement lighting, tubes, lamps and bulbs required in the
Additional Premises. Tenant, at its sole cost and expense, shall install all
replacement ballasts in the Additional Premises using Landlord's designated
contractor, provided that the cost is thereof is at commercially competitive
rates.
66.07 Landlord reserves the right to discontinue furnishing electric
energy to Tenant in the Additional Premises at any time upon not less than
thirty (30) days' notice to Tenant so long as: (i) the discontinuance is not
discriminatory to Tenant; and (iii) electric service is available from the
public utility or otherwise. If Landlord exercises such right this Lease shall
continue in full force and effect and shall be unaffected thereby, except that
from and after the effective date of such termination (a) Landlord shall not
be obligated to furnish electric energy to Tenant and (b) the Base Annual Rent
shall be reduced by the Base Charge then in effect. If Landlord so
discontinues furnishing electric energy to Tenant, such electric energy may be
furnished to Tenant by means of the then existing Building system feeders,
risers and wiring to the extent that the same are available, suitable and safe
for such purpose. All meters and additional panel boards, feeders, wiring and
other conductors and equipment which may be required to obtain electric energy
directly from such public utility company shall be furnished and installed by
Landlord at Landlord's expense, unless such discontinuance is as a result of a
Legal Requirement or Force Majeure, in which event the cost thereof shall be
amortized on a straight-line basis over the useful life thereof utilized for
federal income tax purposes and Tenant shall be responsible for the payment of
the annual amortization amount(s) occurring during the balance of the Term.
The change at any time of the character of electric service in the Additional
Premises not due to the gross negligence or willful misconduct of Landlord
shall not make Landlord liable or responsible to Tenant for any loss, damages
or expenses which Tenant may sustain as a result thereof.
66.08 In instances wherein Tenant has the right to dispute the
determinations made by the Consultant, Tenant shall only dispute such reports
by submitting, within thirty (30) days after receipt of the Consultant's
report, a written report by an electrical consultant retained by Tenant at
Tenant's expense. In the event that the Consultant and Tenant's electrical
consultant cannot mutually agree within thirty (30) days after the submission
of Tenant's electrical consultant's report, the matter shall be referred to
arbitration in accordance with the rules and regulations of the American
Arbitration Association. Until the determination of the consultants or the
arbitrators, Tenant shall pay the Electric Charge determined in accordance
with the Consultant's report and following such determination, an appropriate
adjustment and/or refund shall be made.
ARTICLE 67 - SECURITY.
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67.01 A. Tenant has deposited with Landlord the sum of $294,828.50 as
security for the faithful performance and observance by Tenant of the terms,
provisions, covenants and conditions of this Lease (the "Security Deposit").
The amount of the Security Deposit shall be increased by Tenant coincident
with every increase in Base Annual Rent. It is agreed that in the event Tenant
defaults beyond the expiration of any applicable notice and grace periods
(provided that Tenant shall have commenced such cure within the applicable
grace period and shall thereafter be diligently prosecuting such cure to
completion within the applicable grace period) in respect of any of the terms,
provisions, covenants and conditions of this Lease including, but not limited
to, the payment of Rent, Landlord may use, apply or retain the whole or any
part of the Security Deposit to the extent required for the payment of any
Rent or any other sum as to which Tenant is in default or for any sum which
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of the terms, provisions, covenants, and conditions of this
Lease, including but not limited to, any damages or deficiency accrued before
or after summary proceedings or other re-entry by Landlord. In the event that
Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants, and conditions of this Lease, the Security Deposit shall be
returned to Tenant after the date fixed as the end of this Lease and after
delivery of possession of the Demised Premises to Landlord in the condition
required by, and in accordance with, the terms of this Lease. In the event of
a sale of the Building or leasing of the Building, Landlord shall transfer the
Security Deposit to the vendee or lessee and Landlord shall thereupon be
released by Tenant from all liability for the return of such Security Deposit;
and Tenant agrees to look solely to the new landlord for the return of said
Security Deposit; and it is agreed that the provisions hereof shall apply to
every transfer or assignment made of the Security Deposit to a new landlord.
Tenant further covenants that it will not assign or encumber or attempt to
assign or encumber the Security Deposit and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. In the event Landlord applies
or retains any portion or all of the Security Deposit, Tenant shall forthwith
restore the amount so applied or retained so that at all time the amount
deposited shall be as set forth above. Provided Tenant shall not then be in
default in the payment of rent or otherwise be in default under this Lease
beyond any applicable notice and grace period (provided that Tenant shall have
commenced such cure within the applicable grace period and shall thereafter be
diligently prosecuting such cure to completion within the applicable grace
period), and provided that Landlord shall not have applied all or any portion
of the security as provided for under this paragraph, then on the first
(1st) anniversary of the Effective Date, the security shall be reduced by an
amount equal to $98,276.16 (the "Reduction Amount") and Landlord shall return
to Tenant the Reduction Amount, together with interest earned thereon, if any.
From and after the first (1st) anniversary of the Effective Date and
continuing throughout the balance of the Term, Landlord shall retain an amount
equal to four (4) full months of Base Annual Rent then in effect under this
Lease with respect to the Additional Premises as the security deposit in
accordance with the terms of this Lease.
B. Tenant shall have the option to provide such Security Deposit in
the form of an irrevocable letter of credit from a commercial bank (the
"Issuer") of substantial financial standing and otherwise reasonably
acceptable to Landlord from which Landlord may draw in the event of any
default by Tenant under the terms of this Lease which continues after notice
and the expiration of any applicable grace period. Such letter of credit must
be in writing, be in form and content reasonably acceptable to Landlord,
signed by the Issuer, made payable to the order of Landlord, be assignable by
the beneficiary thereunder. Any fees payable in connection with Landlord's
assignment of the letter of credit to any successor landlord or superior
mortgagee shall be paid by Tenant. The form of letter of credit annexed hereto
as Exhibit B is acceptable to Landlord. Such letter of credit shall, by its
terms, be fully effective during a one (1) year period following the date of
issuance. Tenant shall arrange for such letter of credit to be renewed, or
replaced by an equivalent letter of credit, to provide continuing identical
security to Landlord during each subsequent one (1) year period and during any
remaining period under the Lease term (the last such extension to provide for
the continuance of such letter of credit for at least three months beyond the
Expiration Date). Subject to the penultimate sentence of this paragraph, each
such renewal or replacement of the letter of credit shall be for the full face
amount equivalent to six (6) full months' Base Annual Rent for the Additional
Premises then in effect under this Lease regardless of previous draws against
any prior letter of credit. The letter of credit shall either provide that it
shall be automatically renewed by its terms throughout the duration of this
Lease or contain a provision that requires the Issuer to notify the
beneficiary at least thirty (30) days prior to the expiration date of the
letter of credit that the letter of credit has not been renewed or replaced.
No later than twenty (20) days prior to the expiration date of each letter of
credit, or renewal or replacement thereof, Tenant shall provide written notice
(and supporting documentary evidence signed by the Issuer) to Landlord that
the then effective letter of credit has been so renewed or so replaced for the
succeeding time period. The failure of Tenant to maintain the letter of credit
as herein specified (including the failure to deliver evidence of the renewal
or replacement of the letter of credit as herein provided or the failure to
increase the undrawn balance of the letter of credit as herein provided) or
the Issuer's refusal or failure to permit Landlord to draw against the letter
of credit shall, unless Landlord receives a cash Security Deposit or
replacement letter of credit from another Issuer as herein provided be a
default under the terms of this Lease with the same effect as a default for
failure to pay rent. In addition to all other remedies available to Landlord
in the event of default by Tenant under the terms of this Lease beyond the
expiration of any applicable notice and grace periods (provided that Tenant
shall have commenced such cure within the applicable grace period and shall
thereafter be diligently prosecuting such cure to completion within the
applicable grace period), Landlord shall have the specific remedy of
immediately drawing against the letter of credit in any amount up to and
including the full face amount of such letter of credit for payment of any
Rent or other sum Landlord may be required to expend by reason of Tenant's
default, except that Landlord shall have the right to draw the full face
amount of the letter of credit in the event Tenant fails to renew or replace
the letter of credit as herein provided, in which event Landlord shall hold
such amount as a cash Security Deposit in accordance with the provisions of
the first paragraph of this Section 67.01. In the event that Landlord draws
against the letter of credit as provided for under this paragraph, other than
as a result of Landlord's draw of the full face amount of the letter of credit
as a result of Tenant's failure to renew or replace the letter of credit as
herein provided, then Tenant shall, upon demand by Landlord, increase the then
undrawn balance of the letter of credit to the amount provided for herein. In
the event that Tenant fails to so increase the then undrawn balance of the
letter of credit as herein provided, then Landlord shall be entitled to draw
the remaining balance of the letter of credit. It is specifically agreed and
understood that, in the event that Landlord has not received from Tenant
either a cash Security Deposit or a letter of credit, in the form and
substance required pursuant to the provisions of this paragraph, within ten
(10) days following Tenant's execution of this Modification of Lease Agreement
("Amendment"), then this Amendment shall be, at the sole option of Landlord,
null and void and of no further force and effect. Notwithstanding the
foregoing, provided Tenant shall not then be in default in the payment of rent
or otherwise be in default under this Lease beyond any applicable notice and
grace period (provided that Tenant shall have commenced such cure within the
applicable grace period and shall thereafter be diligently prosecuting such
cure to completion within the applicable grace period), and provided that
Landlord shall not have drawn down any amount under the letter of credit as
provided for under this paragraph, then Tenant shall have the right, on the
first (1st) anniversary of the Effective Date, to reduce the face amount of
the letter of credit by the Reduction Amount. From and after the first (1st)
anniversary of the Effective Date and continuing throughout the balance of the
Term, the letter of credit shall be for the full face amount equivalent to
four (4) full months of Base Annual Rent then in effect under this Lease for
the Additional Premises.
67.02 If the Security Deposit held by Landlord shall be in cash, the
same shall be held in an interest-bearing account and any interest earned
shall be for the account of Tenant and shall be held by Landlord as an
addition to the Security Deposit for the entire Term of the Lease. Landlord
shall be entitled to an administrative fee of 1% per annum, or such greater
percentage permitted by law, on the amount of the Security Deposit held by
Landlord. The administrative fee shall be paid to Landlord at the end of the
Term of this Lease or at such other time or times as Landlord shall elect.
67.03 In the event that during the Term of this Lease the Security
Deposit held by Landlord (not including interest) is less than four monthly
installments of the Base Annual Rent payable with respect to the Additional
Premises under Article 3, Tenant shall, on written demand by Landlord, deposit
with Landlord on account of the security herein provided for, the difference
between the Security Deposit then held by Landlord and a sum equal to four (4)
months' installments of Base Annual Rent.
67.04 If Tenant fails to pay any Base Annual Rent or any Additional
Rent payable under this Lease within ten (10) days after such payment is due
twice in any twelve-month period, Tenant shall furnish Landlord, within ten
days after demand by Landlord, with additional monies equal to one month's
installment of Base Annual Rent at the rate payable during the last Lease Year
which shall be added to and included in the Security Deposit."
G. In lieu of a porters wage increase payable on account of
the Additional Premises, Tenant shall pay to Landlord, as Additional Rent,
during each Lease Year following Lease Year One of the Term for the Additional
Premises, an amount equal to three percent (3%) of the Base Annual Rent (as
increased from time to time by the escalation described in this subparagraph
G) payable for the prior Lease Year on account of the Additional Premises.
Such payments shall be made, in equal monthly installments, in advance, on the
first day of each and every calendar month throughout the Term of the Lease.
Section 38.02 of the Lease shall not be applicable to the Additional Premises.
H. Section 39.02 of the Lease is hereby deleted in its
entirety.
I. Section 41.01(c)(ii) of the Lease is hereby amended by
deleting the second sentence thereof in its entirety.
J. Section 41.01(d) of the Lease is hereby deleted in its
entirety.
K. Article 45 of the Lease is hereby deleted in its entirety
and the following is inserted in lieu thereof:
"ARTICLE 45 - Use of Demised Premises
-----------------------
45.01 Tenant shall use and occupy the Demised Premises for showrooms
for the display and sale of women's moderate priced, better or designer
apparel and related women's accessories and related women's apparel items, and
for design and sample making related thereto and executive and general offices
for clothing and accessory lines of Tenant and its affiliated companies and
businesses."
L. Section 47.01 of the Lease is hereby amended by deleting
the word "two" in the fourth line thereof and substituting in lieu thereof the
word "three".
2. Further Modification of Lease. On the Original
-----------------------------
Expiration Date, the Lease shall be deemed further modified as
follows:
A. Sections 42.01 and 42.04 of the Lease shall be
deleted and thereafter electricity shall be supplied to the Original Demised
Premises pursuant to Article 66 of the Lease except that the "Base Charge"
applicable solely to the Original Demised Premises (and in addition to the
Base Charge applicable to the Additional Premises) shall be $101,665.00 and
all references in Article 66 to the Additional Premises shall be deemed to
include the Original Demised Premises as the context may require.
B. "Base Tax Year" solely on account of the Original
Demised Premises (and in addition to the Base Tax Year applicable to the
Additional Premises) shall be modified to mean the Taxes for the twelve month
fiscal year commencing on July 1, 1998.
C. Sections 37.07, 38.02, 38.03 and 38.04 regarding
porters wage increase payments shall be deleted and, in lieu thereof, Tenant
shall pay to Landlord, as Additional Rent on account of the Original Demised
Premises (and in addition to such similar payments applicable to the
Additional Premises), during each annual period set forth in paragraphs
1(D)(1)(a) through (c) above an amount equal to three percent (3%) of the Base
Annual Rent (as increased from time to time by the escalation described in
this Paragraph C) payable for the prior annual period on account of the
Original Demised Premises. Such payment shall be made, in equal monthly
installments, in advance, on the first day of each and every calendar month
throughout the balance of the Term of the Lease.
3. Delivery of Additional Premises and Landlord's
-------------------------------------------------------
Contribution. Landlord is delivering and Tenant shall accept the Additional
------------
Premises "AS IS", together with all fixtures, equipment and improvements
existing in the Additional Premises as of the date of this Agreement and
Landlord makes no representation as to the repair, condition or working order
of the Additional Premises.
4. Tenant's Continuing Obligations. Notwithstanding anything to the
-------------------------------
contrary contained herein, all of Tenant's existing and future obligations to
pay items of Base Annual Rent and Additional Rent under the Lease, as amended
hereby, with regard to the Original Demised Premises shall continue and
nothing in this Agreement shall affect Tenant's obligations under the Lease
including, but not limited to, the obligation to make all payments due under
the Lease, as hereby amended, prior to demand and without any set-off or
deduction whatsoever.
5. Broker. Each party represents to the other that notwithstanding
------
anything to the contrary contained in the Lease, no broker participated in or
brought about this Agreement other than Newmark & Company Real Estate, Inc.,
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & Associates, Inc. (collectively, the "Broker") and no
broker, other than the Broker, with which either party has dealt is or will be
entitled to a commission as a result of the execution or delivery of this
Agreement. Each party agrees to indemnify and save the other harmless against
any claim or cost or expense due any other broker with which such party has
dealt in connection with this Agreement. Landlord shall be responsible for any
commission due the Broker.
6. Lease in Full Force. Except as modified hereby, the terms and
--------------------
provisions of the Lease, as heretofore amended, shall continue in full force
and effect and, as amended and modified hereby, all of the terms and
conditions of the Lease are hereby ratified and confirmed in all respects.
7. Governing Law. This Agreement shall be governed by the
-------------
laws of the State of New York without giving effect to the
principles of conflict of laws.
8. Entire Agreement. This Agreement, together with the Lease,
-----------------
constitutes the sole agreement and contains the entire understanding and
agreement of the parties. There are no understandings or agreements of the
parties relating to the subject matter of this Agreement other than as
expressly set forth herein.
9. No Oral Modifications. This Agreement and the provisions
----------------------
hereof cannot be waived, changed, or terminated except by an agreement in
writing signed by the party against whom enforcement of the waiver, change, or
termination is sought.
10. No Waiver. The failure of Landlord to insist upon the
---------
strict performance by Tenant of any of the obligations of Tenant under this
Agreement shall not be deemed to be a waiver of such obligations, and
Landlord, notwithstanding any such failure, may thereafter insist upon the
strict performance by Tenant of any such obligations.
11. Captions. The captions, headings, and titles in this
--------
Agreement are solely for convenience of reference and shall not
affect its interpretation.
12. Remedies Not Exclusive. The rights and remedies provided
----------------------
for in this Agreement or that Landlord may have otherwise pursuant to the
Lease, at law or in equity, shall be distinct, separate, and cumulative and
shall not be deemed to be inconsistent with each other, and none of them,
whether or not exercised by Landlord, shall be deemed to be in exclusion of
any other, and any two or more of such rights and remedies may be exercised at
the same time, all to the extent permitted by law.
13. Invalid Provisions. If any provision of this Agreement or
------------------
the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application
of such provision to persons or circumstances other than those as to which it
is invalid or unenforceable, shall not be affected thereby, and shall be valid
and enforceable to the fullest extent permitted by law.
14. Successors and Assigns. This Agreement shall bind the
-----------------------
parties hereto and their respective heirs, administrators, executors,
successors and permitted assigns.
15. Condition Subsequent. This Agreement shall be void ab
---------------------
initio and of no further force and effect unless, within 20 Business Days from
the date of full execution of this Agreement, Landlord obtains and delivers to
Tenant the written consent of Nomura Asset Capital Corporation, which entity
Landlord represents is the only existing mortgagee ("Mortgagee") of the
Building as of the date hereof, as evidenced by the execution and delivery by
such Mortgagee of that certain Amended and Restated Subordination,
Non-Disturbance and Attornment Agreement, substantially in the form annexed
hereto as Schedule 1 (the date upon which such agreement is fully executed and
delivered to Tenant, herein referred to as the "Approval Date"). Neither
Landlord nor Tenant shall have any right to cancel this Agreement during such
20 Business Day period. Tenant shall have the right to enter the Additional
Premises during such 20 Business Day period for the purpose of inspecting and
measuring the same, provided that Tenant shall indemnify and hold Landlord
harmless from and against all loss, cost, claims and damage arising as a
result of any such entry.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to
be duly executed as of the day and year first above written.
LANDLORD:
FASHION GALLERY OWNERS, LLC
By: Fashion Gallery, LLC, its
Manager
By:_________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President
TENANT
▇▇▇▇▇▇ ▇▇▇ MARKETING, INC.
By: ____________________________
Name:
Title:
Exhibit T
▇▇▇▇▇ Lease
-----------
FASHION GALLERY OWNER LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ANNUALIZED RENT ROLL PAGE: 9
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ DATE: 8/5/1998
TIME: 16:59:29
---------------------------------------------------------------------------------------------------------------------------------
ACCOUNT UNIT TENANT NAME/ SQUARE FEET MONTHLY ANNUAL ANNUAL SECURITY/ PERCENT
CHARGE TYPE CHARGE CHARGE PSF BASE YEAR OCCUPANCY
---------------------------------------------------------------------------------------------------------------------------------
248-001 STORE 1 ▇▇▇▇▇ ▇▇▇▇ 7,724 29,166.67 350,000.04 45.31
RENT INCREASE: 3/1/2001 37,500.00 450,000.00 58.26
ELEC METER 1,526.10 18,313.20 2.37
R/E TAX 2,960.68 35,528.23 4.60 1988/1989 .04475
SUBMTR FEE 15.00 180.00 .02
==============================================================================
TOTALS 33,668.45 404,021.47 52.31
248-002 STORE 2 GOTHAM BANK OF NY 8,009 17,083.33 204,999.96 25.60
RENT INCREASE: 2/1/2003 19,583.33 234,999.96 29.34
RENT INCREASE: 2/1/2002 19,166.67 230,000.04 28.72
RENT INCREASE: 2/1/2001 18,583.33 222,999.96 27.84
RENT INCREASE: 2/1/2000 17,916.67 215,000.04 26.84
RENT INCREASE: 2/1/1999 17,666.67 212,000.04 26.47
ELEC INCL 1,000.00 12,000.00 1.50
==============================================================================
TOTALS 18,083.33 216,999.96 27.09
248-003 STORE 3 CORNUCOPIA INC. 798 3,655.00 43,860.00 54.96 6,465.40
ELEC INCL 1,000.00 12,000.00 15.04
FUEL/UTIL ESC. 0.53 6.36 .01
▇▇▇▇▇▇ WAGE ESC 268.82 3,225.84 4.04 1992
METERED WATER 73.69 884.28 1.11
LATE FEE 43.20 518.40 .65
SUBMTR FEE 30.00 360.00 .45
==============================================================================
TOTALS 5,071.24 60,854.88 76.26
248-004 STORE 4 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,489.00 17,868.00 .00 5,600.00
RENT INCREASE: 10/1/2001 1,809.88 21,718.56 .00
RENT INCREASE: 10/1/2000 1,723.70 20,684.40 .00
RENT INCREASE: 10/1/1999 1,641.62 19,699.44 .00
RENT INCREASE: 10/1/1998 1,563.44 18,761.28 .00
ELEC INCL 84.00 1,008.00 .00
STORAGE RENT 200.00 2,400.00 .00
==============================================================================
TOTALS 1,773.00 21,276.00 .00
248-005 STORE 5 BROADWAY STATIONERY CO. INC 4,782 14,850.00 178,200.00 37.26
RENT INCREASE: 5/1/2002 15,416.67 185,000.04 38.69
WTR/SPKL 35.00 420.00 .09
ELEC METER 2,028.70 24,344.40 5.09
LATE FEE 143.40 1,720.80 .36
ADDITIONAL RENT 46,559.10 558,709.20 116.84
SUBMTR FEE 15.00 180.00 .04
==============================================================================
TOTALS 63,631.20 763,574.40 159.68
248-006 STORE 6 ** VACANT ** 2,300 0.00 .00 .00
==============================================================================
TOTALS 0.00 .00 .00
248-007 STORE ROMA PIZZA FOOD CORP. 6,250.00 75,000.00 .00 20,750.00
METERED WATER 168.76 2,025.12 .00
==============================================================================
TOTALS 6,418.76 77,025.12 .00
▇▇▇-▇▇▇ ▇▇▇ AFZAM INC. 805 2,012.50 24,150.00 30.00 6,467.52
RENT INCREASE: 2/1/2000 2,155.84 25,870.08 32.14
RENT INCREASE: 2/1/1999 2,082.94 24,995.28 31.05
ELEC INCL 201.25 2,415.00 3.00
R/E TAX 1.33 16.03 .02 1997/1998 .00230
LATE FEE 20.10 241.20 .30
JANITORIAL/CLEANING 134.16 1,609.92 2.00
==============================================================================
TOTALS 2,369.34 28,432.15 35.32
▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ BY ▇▇▇▇, INC. 778 1,916.67 23,000.04 29.56 5,835.00
ELEC INCL 194.25 2,331.00 3.00
R/E TAX 1.33 16.03 .02 1997/1998 .00230
▇▇▇▇▇▇ WAGE ESC 25.24 302.95 .39
LATE FEE 19.50 234.00 .30
JANITORIAL/CLEANING 129.66 1,555.92 2.00
==============================================================================
TOTALS 2,286.65 27,439.94 35.27
248-229 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC. 1,278 3,195.00 38,340.00 30.00 9,585.00
ELEC INCL 319.50 3,834.00 3.00
R/E TAX 1.85 22.30 .02 1997/1998 .00320
▇▇▇▇▇▇ WAGE ESC 41.47 497.65 .39
JANITORIAL/CLEANING 213.00 2,556.00 2.00
STORAGE RENT 165.00 1,980.00 1.55
==============================================================================
TOTALS 3,935.82 47,229.95 36.96
▇▇▇-▇▇▇ ▇▇▇ BRIGATA INT'L INC. 3,643 7,893.17 94,718.04 26.00 23,679.50
BASE CHARGE -3,946.59 -47,359.08 -13.00
ELEC INCL 910.75 10,929.00 3.00
▇▇▇▇▇▇ WAGE ESC 376.35 4,516.23 1.24 1996
JANITORIAL/CLEANING 576.80 6,921.60 1.90
==============================================================================
TOTALS 5,810.48 69,725.79 19.14
▇▇▇-▇▇▇ ▇▇▇ QUADRA LLC 2,273 5,303.67 63,644.04 28.00 17,615.76
RENT INCREASE: 5/1/2002 5,871.92 70,463.04 31.00
RENT INCREASE: 5/1/2000 5,682.50 68,190.00 30.00
ELEC INCL 568.25 6,819.00 3.00
R/E TAX 3.83 45.99 .02 1997/1998 .00660
PORTAGE WAGE ESC 73.76 885.12 .39
LATE FEE 6.09 73.08 .03
JANITORIAL/CLEANING 378.83 4,545.96 2.00
==============================================================================
TOTALS 6,334.43 76,013.19 33.44
▇▇▇-▇▇▇ ▇▇▇ ** VACANT ** 3,142 0.00 .00 .00
==============================================================================
TOTALS 0.00 .00 .00
▇▇▇-▇▇▇ ▇▇▇ MI-KOR REALTY CORP. 4,562 5,208.00 62,496.00 13.70
ELEC INCL 312.50 3,750.00 .82
PORTAGE WAGE ESC 739.88 8,878.56 1.95 1995
LATE FEE 56.70 680.40 .15
JANITORIAL/CLEANING 325.00 3,900.00 .85
==============================================================================
TOTALS 6,642.08 79,704.96 17.47
248-250 EN2&4 ▇▇▇▇▇▇ ▇▇▇ COMPANIES, INC. 40,666 71,989.92 863,879.04 21.24
RENT INCREASE: 5/1/2000 85,545.25 1,026,543.00 25.24
RENT INCREASE: 5/1/1999 78,767.58 945,210.96 23.24
ELEC METER 12,178.55 146,142.60 3.59
▇▇▇▇▇▇ WAGE ESC 2,626.34 31,516.15 .78 1996
ADDITIONAL RENT 3,567.35 42,808.20 1.05
JANITORIAL/CLEANING 6,724.91 80,698.92 1.98
SUBMTR FEE 120.00 1,440.00 .04
==============================================================================
TOTALS 97,207.07 1,166,484.91 28.68
248-300 EN5&6 ▇▇▇▇▇▇ A.S.L. LTD. 40,666 81,332.00 975,984.00 24.00
RENT INCREASE: 3/1/2004 101,665.00 1,219,980.00 30.00
RENT INCREASE: 3/1/2001 94,887.33 1,138.647.96 28.00
▇▇▇▇▇▇ WAGE ESC 2,626.35 31,516.20 .78
ADDITIONAL RENT 3,388.83 40,665.96 1.00
==============================================================================
TOTALS 87,347.18 1,048,166.16 25.78
▇▇▇-▇▇▇ ▇▇▇ ** VACANT ** 0.00 .00 .00
==============================================================================
TOTALS 0.00 .00 .00
248-350 EN 8 ESCADA (USA) INC. 16,346 53,178.00 638,136.00 39.04
RENT INCREASE: 9/1/2005 57,736.00 692,832.00 42.39
RENT INCREASE: 9/1/2004 57,146.00 685,752.00 41.95
RENT INCREASE: 9/1/2003 56,561.00 678,732.00 41.52
RENT INCREASE: 9/1/2002 55,983.00 671,796.00 41.10
RENT INCREASE: 9/1/2001 55,410.00 664,920.00 40.68
RENT INCREASE: 9/1/2000 54,844.00 658,128.00 40.26
RENT INCREASE: 9/1/1999 54,283.00 651,396.00 39.85
RENT INCREASE: 9/1/1998 53,728.00 644,736.00 39.44
ELEC INCL 4,767.58 57,210.96 3.50
R/E TAX 1,319.96 15,839.56 .97 1989/1990 .04200
AIR-CON INCOME 3,150.00 37,800.00 2.31
JANITORIAL/CLEANING 2,658.11 31,897.32 1.95
==============================================================================
TOTALS 60,073.65 780,883.84 47.77
248-375 EN 9 ESCADA (USA) INC. 16,346 42,227.00 506,724.00 31.00
RENT INCREASE: 9/1/2003 50,400.00 604,800.00 37.00
RENT INCREASE: 9/1/2001 47,676.00 572,112.00 35.00
RENT INCREASE: 9/1/1998 43,929.92 527,159.04 32.25
ELEC INCL 3,745.96 44,951.52 2.75
OPER COST ESC 290.56 3,486.72 .21
JANITORIAL/CLEANING 2,844.17 34,130.04 2.09
==============================================================================
TOTALS 49,107.69 589,292.28 36.05
▇▇▇-▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇ (▇▇▇) INC. 16,346 29,967.67 359,612.04 22.00
RENT INCREASE: 9/1/2005 40,865.00 490,380.00 30.00
RENT INCREASE: 9/1/2003 38,140.67 457,688.04 28.00
RENT INCREASE: 9/1/2001 35,416.33 424,995.96 26.00
RENT INCREASE: 9/1/1999 32,692.00 392,304.00 24.00
ELEC INCL 3,745.96 44,951.52 2.75
OPER COST ESC 290.56 3,486.72 .21
JANITORIAL/CLEANING 2,844.17 34,130.04 2.09
==============================================================================
TOTALS 36,848.36 442,180.32 27.05
248-400 EN 10 ** VACANT ** 0.00 .00 .00
==============================================================================
TOTALS 0.00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ NETTALCO N.Y. INC. 560 1,493.33 17,919.96 32.00 4,480.00
ELEC INCL 140.00 1,680.00 3.00
R/E TAX 0.92 11.15 .02 1997/1998 .00160
▇▇▇▇▇▇ WAGE ESC 18.17 218.06 .39
JANITORIAL/CLEANING 93.33 1,119.96 2.00
==============================================================================
TOTALS 1,745.75 20,949.13 37.41
▇▇▇-▇▇▇ ▇▇▇▇ S.A. (USA), INC. 2,159 5,163.58 61,962.96 28.70 15,113.00
RENT INCREASE: 12/1/2000 5,560.61 66,727.32 30.91
RENT INCREASE: 12/1/1999 5,424.98 65,099.76 30.15
RENT INCREASE: 12/1/1998 5,292.67 63,512.04 29.42
ELEC INCL 539.75 6,477.00 3.00
JANITORIAL/CLEANING 205.10 2,461.20 1.14
==============================================================================
TOTALS 5,908.43 70,901.16 32.84
▇▇▇-▇▇▇ ▇▇▇▇ U-GIRL, INC. 778 2,009.83 24,117.96 31.00 6,209.00
RENT INCREASE: 7/1/2000 2,074.67 24,896.04 32.00
BASE CHARGE -2,009.83 -24,117.96 -31.00
ELEC INCL 194.50 2,334.00 3.00
JANITORIAL/CLEANING 129.67 1,556.04 2.00
==============================================================================
TOTALS 324.17 3,890.04 5.00
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ INC. 1,254 3,135.00 37,620.00 30.00 9,405.00
ELEC INCL 313.50 3,762.00 3.00
▇▇▇▇▇▇ WAGE ESC 339.32 4,071.84 3.25
LATE FEE 17.10 205.20 .16
JANITORIAL/CLEANING 209.00 2,508.00 2.00
==============================================================================
TOTALS 4,013.92 48,167.04 38.41
▇▇▇-▇▇▇ ▇▇▇▇ MARCOROSSI USA, INC. 1,940 4,850.00 58,200.00 30.00 14,550.00
ELEC INCL 485.00 5,820.00 3.00
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇.▇▇ .▇▇ .▇▇
▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ 323.33 3,879.96 2.00
==============================================================================
TOTALS 5,658.33 67,899.96 35.00
▇▇▇-▇▇▇ ▇▇▇▇ PRODUCTION MAKERS, INC. 2,948 6,633.00 79,596.00 27.00 22,847.00
RENT INCREASE: 7/1/2002 7,615.66 91,387.92 31.00
RENT INCREASE: 7/1/2001 7,370.00 88,440.00 30.00
RENT INCREASE: 7/1/1999 6,878.67 82,544.04 28.00
BASE CHARGE -6,633.00 -79,596.00 -27.00
ELEC INCL 737.00 8,844.00 3.00
JANITORIAL/CLEANING 491.33 5,895.96 2.00
==============================================================================
TOTALS 1,228.33 14,739.96 5.00
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PUBLICATIONS, INC. 1,458 3,402.00 40,824.00 28.00 7,047.00
RENT INCREASE: 5/1/2001 3,523.50 42,282.00 29.00
ELEC INCL 364.50 4,374.00 3.00
JANITORIAL/CLEANING 145.80 1,749.60 1.20
STORAGE RENT 195.00 2,340.00 1.60
==============================================================================
TOTALS 4,107.30 49,287.60 33.80
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 4,849 0.00 .00 .00
==============================================================================
TOTALS 0.00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ COMPANY 6,841.67 82,100.04 .00
ELEC INCL 641.75 7,701.00 .00
R/E TAX 235.70 2,828.49 .00 1989/1990 .00750
▇▇▇▇▇▇ WAGE ESC 791.49 9,497.90 .00 1989
LATE FEE 37.20 446.40 .00
STORAGE RENT 210.00 2,520.00 .00
==============================================================================
TOTALS 8,757.81 105,093.83 .00
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 3,575 11,769.33 141,231.96 39.51 10,427.00
RENT INCREASE: 5/1/1999 11,793.16 141,517.92 39.59
ELEC INCL 885.83 10,629.96 2.97
R/E TAX 202.54 2,430.50 .68 CAL 1990 .01030
LATE FEE 51.66 619.92 .17
JANITORIAL/CLEANING 300.00 3,600.00 1.01
==============================================================================
TOTALS 13,209.36 158,512.34 44.34
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ INC. 1,908 4,770.00 57,240.00 30.00 4,770.00
ELEC INCL 477.00 5,724.00 3.00
▇▇▇▇▇▇ WAGE ESC 410.57 4,926.84 2.58 1994
LATE FEE 23.38 280.56 .15
JANITORIAL/CLEANING 200.00 2,400.00 1.26
==============================================================================
TOTALS 5,880.95 70,571.40 36.99
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 1,603 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, INC. 1,500.00 18,000.00 .00
==============================================================================
TOTALS 1,500.00 18,000.00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ESSEL CLOTHING/UNITED TEAM 970 1,616.67 19,400.04 20.00 4,850.00
ELEC INCL 242.50 2,910.00 3.00
JANITORIAL/CLEANING 161.66 1,939.92 2.00
==============================================================================
TOTALS 2,020.83 24,249.96 25.00
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC. 960 2,472.00 29,664.00 30.90
ELEC INCL 240.00 2,880.00 3.00
▇▇▇▇▇▇ WAGE ESC 259.76 3,117.22 3.25 1993
LATE FEE 15.13 181.56 .19
JANITORIAL/CLEANING 151.79 1,821.48 1.90
==============================================================================
TOTALS 3,138.68 37,664.26 39.23
▇▇▇-▇▇▇ ▇▇▇▇ FASHION LAB LTD. 1,410 3,525.00 42,300.00 30.00 10,575.00
ELEC INCL 352.50 4,230.00 3.00
▇▇▇▇▇▇ WAGE ESC 381.53 4,578.41 3.25 1993
JANITORIAL/CLEANING 235.00 2,820.00 2.00
==============================================================================
TOTALS 4,494.03 53,928.41 38.25
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 300 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
248-477 1400-2 ▇▇▇▇ INTERN'L GROUP LTD 2,867 7,167.50 86,010.00 30.00 14,583.34
ELEC INCL 716.75 8,601.00 3.00
▇▇▇▇▇▇ WAGE ESC 296.18 3,554.22 1.24 1996
LATE FEE 73.20 878.40 .31
JANITORIAL/CLEANING 344.13 4,129.56 1.44
==============================================================================
TOTALS 8,597.76 103,173.18 35.99
▇▇▇-▇▇▇ ▇▇▇▇ ABC INTERNATIONAL 1,807 4,141.00 49,692.00 27.50 8,282.00
ELEC INCL 451.75 5,421.00 3.00
▇▇▇▇▇▇ WAGE ESC 41.50 498.04 .28
LATE FEE 35.70 428.40 .24
JANITORIAL/CLEANING 286.10 3,433.20 1.90
==============================================================================
TOTALS 4,956.05 59,472.64 32.91
▇▇▇-▇▇▇ ▇▇▇▇ THE ▇▇▇▇▇▇▇▇ COMPANY, INC 2,785 0.00 .00 .00 4,500.00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 1,319 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ INTERN'L GROUP LTD 1,279 1,666.67 20,000.04 15.64 3,333.34
ELEC INCL 319.75 3,837.00 3.00
▇▇▇▇▇▇ WAGE ESC 132.13 1,585.58 1.24 1996
LATE FEE 19.20 230.40 .18
JANITORIAL/CLEANING 127.89 1,534.68 1.20
==============================================================================
TOTALS 2,265.64 27,187.70 21.26
▇▇▇-▇▇▇ ▇▇▇▇ THE FASHION SERVICE INC. 2,852 3,500.00 42,000.00 14.73 10,154.33
ELEC INCL 713.00 8,556.00 3.00
▇▇▇▇▇▇ WAGE ESC 415.91 4,991.00 1.75 1993
LATE FEE 39.90 478.80 .17
==============================================================================
TOTALS 4,668.81 56,025.80 19.64
▇▇▇-▇▇▇ ▇▇▇▇ LA STRADA SPORTSWEAR INC. 625 1,197.92 14,375.04 23.00 3,593.75
ELEC INCL 156.25 1,875.00 3.00
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇.▇▇ .▇▇ .▇▇
▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ 98.82 1,185.84 1.90
==============================================================================
TOTALS 1,452.99 17,435.88 27.90
248-489 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇ ▇▇ 1,221 3,052.50 36,630.00 30.00 9,157.50
BASE CHARGE -712.25 -8,547.00 -7.00
ELEC INCL 305.25 3,663.00 3.00
AIR-CON INCOME 10.66 127.92 .10
JANITORIAL/CLEANING 193.06 2,316.72 1.90
==============================================================================
TOTALS 2,849.22 34,190.64 28.00
▇▇▇-▇▇▇ ▇▇▇▇ ROSEBAR TEXTILE CO., INC. 1,256 3,140.00 37,680.00 30.00 9,420.00
ELEC INCL 314.00 3,768.00 3.00
▇▇▇▇▇▇ WAGE ESC 129.75 1,557.06 1.24 1996
JANITORIAL/CLEANING 79.55 954.60 .76
==============================================================================
TOTALS 3,663.30 43,959.66 35.00
▇▇▇-▇▇▇ ▇▇▇▇ D.Z. TRADING INC. 3,517 8,792.50 105,510.00 30.00 26,377.50
ELEC INCL 879.25 10,551.00 3.00
▇▇▇▇▇▇ WAGE ESC 756.80 9,081.60 2.58 1994
==============================================================================
TOTALS 10,428.55 125,142.60 35.58
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 1,486 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ MONACO APPAREL, INC. 2,057 5,142.50 61,710.00 30.00 11,656.34
ELEC INCL 514.25 6,171.00 3.00
▇▇▇▇▇▇ WAGE ESC 893.62 10,723.55 5.21 1991
JANITORIAL/CLEANING 325.61 3,907.32 1.90
STORAGE RENT 350.00 4,200.00 2.04
==============================================================================
TOTALS 7,225.98 86,711.87 42.15
▇▇▇-▇▇▇ ▇▇▇▇ RPJ SPORTSWEAR, INC. 2,225 5,562.50 66,750.00 30.00 16,687.50
ELEC INCL 556.25 6,675.00 3.00
▇▇▇▇▇▇ WAGE ESC 72.20 866.42 .39 1997
JANITORIAL/CLEANING 352.29 4,227.48 1.90
==============================================================================
TOTALS 6,543.24 78,518.90 35.29
▇▇▇-▇▇▇ ▇▇▇▇ M.J.F. IMPORTS INC. 2,496 5,616.00 67,392.00 27.00 19,052.99
RENT INCREASE: 2/ 1/2001 6,351.00 76,212.00 30.53
RENT INCREASE: 2/ 1/2000 6,166.01 73,992.12 29.64
RENT INCREASE: 2/ 1/1999 5,784.48 69,413.76 27.81
ELEC INCL 624.00 7,488.00 3.00
R/E TAX 4.18 50.18 .02 1997/1998 .00720
NSF CHECK CHARGE 25.00 300.00 .12
JANITORIAL/CLEANING 416.00 4,992.00 2.00
STORAGE RENT 200.00 2,400.00 .96
==============================================================================
TOTALS 6,885.18 82,622.18 33.10
▇▇▇-▇▇▇ ▇▇▇▇ J&J CONTRACT SERVICES, INC. 1,795 2,692.50 32,310.00 18.00
BASE CHARGE -2,692.50 -32,310.00 -18.00
ELEC INCL 448.75 5,385.00 3.00
==============================================================================
TOTALS 448.75 5,385.00 3.00
▇▇▇-▇▇▇ ▇▇▇▇ AMERICAN EXPRESS FASHIONS, 1,031 2,577.50 30,930.00 30.00 7,732.50
ELEC INCL 257.75 3,093.00 3.00
▇▇▇▇▇▇ WAGE ESC 33.45 401.47 .39 1997
LATE FEE 25.50 306.00 .30
JANITORIAL/CLEANING 98.00 1,176.00 1.14
==============================================================================
TOTALS 2,992.20 35,906.47 34.83
248-512 ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ I 1,031 2,663.42 31,961.04 31.00 8,248.00
BASE CHARGE -687.34 -8,248.08 -8.00
ELEC INCL 257.75 3,093.00 3.00
▇▇▇▇▇▇ WAGE ESC 221.85 2,662.25 2.58 1994
JANITORIAL/CLEANING 163.00 1,956.00 1.90
==============================================================================
TOTALS 2,618.68 31,424.21 30.48
▇▇▇-▇▇▇ ▇▇▇▇ CALIFORNIA APPAREL, INC. 935 2,337.50 28,050.00 30.00 7,012.50
ELEC INCL 233.75 2,805.00 3.00
R/E TAX 1.56 18.82 .02 1997/1998 .00270
JANITORIAL/CLEANING 155.83 1,869.96 2.00
==============================================================================
TOTALS 2,728.64 32,743.78 35.02
▇▇▇-▇▇▇ ▇▇▇▇ STEILMAN BY ▇▇▇▇▇ ▇▇▇▇▇▇ LT 4,404 12,850.00 154,200.00 35.01 25,700.00
ELEC INCL 1,101.25 13,215.00 3.00
▇▇▇▇▇▇ WAGE ESC 1,913.24 22,958.93 5.21 1991
JANITORIAL/CLEANING 697.15 8,365.80 1.90
==============================================================================
TOTALS 16,561.64 198,739.73 45.13
▇▇▇-▇▇▇ ▇▇▇▇ SINGER FASHION GROUP, INC. 2,658 6,750.00 81,000.00 30.47 20,250.00
BASE CHARGE -105.00 -1,260.00 -.47
ELEC INCL 675.00 8,100.00 3.05
▇▇▇▇▇▇ WAGE ESC 595.30 7,143.62 2.69 1993
JANITORIAL/CLEANING 348.33 4,179.96 1.57
==============================================================================
TOTALS 8,263.63 99,163.58 37.31
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL INC. 1,095 1,961.88 23,542.56 21.50 5,915.63
▇▇▇▇▇▇ WAGE ESC 177.59 2,131.09 1.95 1995
==============================================================================
TOTALS 2,139.47 25,673.65 23.45
▇▇▇-▇▇▇ ▇▇▇▇ M.E. ▇▇▇▇ COMPANY INC. 2,086 3,787.50 45,450.00 21.79 1,622.50
WTR/SPKL 18.00 216.00 .10
▇▇▇▇▇▇ WAGE ESC 447.62 5,371.45 2.58 1991
R/E TAX 0.00 0.00
==============================================================================
TOTALS 4,678.46 56,141.59 26.91
▇▇▇-▇▇▇ ▇▇▇▇ CASUAL CORNER GROUP, INC. 1,550 2,970.83 35,649.96 23.00
RENT INCREASE: 6/ 1/2000 3,151.76 37,821.12 24.40
RENT INCREASE: 6/1/1999 3,059.96 36,719.52 23.69
BASE CHARGE -2,970.83 -35,649.96 -23.00
ELEC INCL 387.50 4,650.00 3.00
JANITORIAL/CLEANING 258.34 3,100.08 2.00
==============================================================================
TOTALS 645.84 7,750.08 5.00
▇▇▇-▇▇▇ ▇▇▇▇ FABRIC TEAM USA, INC. 1,459 3,775.16 45,301.92 31.05
ELEC INCL 364.75 4,377.00 3.00
R/E TAX 2.43 29.27 .02 1997/1998 .00420
JANITORIAL/CLEANING 243.16 2,917.92 2.00
==============================================================================
TOTALS 4,385.50 52,626.11 36.07
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ STUDIO INC. 300 800.00 9,600.00 32.00 2,400.00
ELEC INCL 75.00 900.00 3.00
▇▇▇▇▇▇ WAGE ESC 30.99 371.91 1.24 1996
JANITORIAL/CLEANING 47.50 570.00 1.90
==============================================================================
TOTALS 953.49 11,441.91 38.14
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ MARC WEAR, INC. 3,284 7,558.75 90,705.00 27.62 24,630.00
ELEC INCL 821.00 9,852.00 3.00
▇▇▇▇▇▇ WAGE ESC 448.11 5,377.35 1.64 1995
JANITORIAL/CLEANING 437.48 5,249.76 1.60
==============================================================================
TOTALS 9,265.34 111,184.11 33.86
▇▇▇-▇▇▇ ▇▇▇▇ RIDGEVIEW, INC. 4,426 10,767.50 129,210.00 29.19 33,195.00
RENT INCREASE: 11/ 1/2000 10,958.33 131,499.96 29.71
RENT INCREASE: 11/ 1/1999 10,905.00 130,860.00 29.57
RENT INCREASE: 11/ 1/1998 10,835.00 130,020.00 29.38
ELEC INCL 1,106.50 13,278.00 3.00
▇▇▇▇▇▇ WAGE ESC 457.24 5,486.91 1.24 1996
JANITORIAL/CLEANING 599.95 7,199.40 1.63
STORAGE RENT 200.00 2,400.00 .54
==============================================================================
TOTALS 13,131.19 157,574.31 35.60
▇▇▇-▇▇▇ ▇▇▇▇ KATESCORP (US) INC. 1,692 4,230.00 50,760.00 30.00
ELEC INCL 423.00 5,076.00 3.00
R/E TAX 2.84 34.15 .02 1997/1998 .00490
▇▇▇▇▇▇ WAGE ESC 54.90 658.86 .39 1997
LATE FEE 42.90 514.80 .30
ADDITIONAL RENT 12,833.68 154,004.16 91.02
JANITORIAL/CLEANING 282.00 3,384.00 2.00
==============================================================================
TOTALS 17,869.32 214,431.97 126.73
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, INC. 1,500 2,500.00 30,000.00 20.00 7,500
ELEC INCL 375.00 4,500.00 3.00
R/E TAX 2.49 29.97 .02 1997/1998 .00430
LATE FEE 27.00 324.00 .22
JANITORIAL/CLEANING 250.00 3,000.00 2.00
==============================================================================
TOTALS 3,154.49 37,853.97 25.24
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 984 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ME & YOU 1,833.33 21,999.96 .00 15,716.67
ELEC INCL 250.00 3,000.00 .00
ARREARS AGREEMENT 2,835.45 34,025.40 .00
LATE FEE 43.80 525.60 .00
JANITORIAL/CLEANING 166.66 1,999.92 .00
==============================================================================
TOTALS 5,129.24 61,550.88 .00
▇▇▇-▇▇▇ ▇▇▇▇ MARCONI INTERNATIONAL INC. 2,150 5,554.16 66,649.92 31.00 16,125.00
RENT INCREASE: 3/ 1/1999 5,733.33 68,799.96 32.00
ELEC INCL 537.50 6,450.00 3.00
▇▇▇▇▇▇ WAGE ESC 348.69 4,194.33 1.95 1995
JANITORIAL/CLEANING 340.42 4,085.04 1.90
STORAGE RENT 200.00 2,400.00 1.12
==============================================================================
TOTALS 6,980.77 83,769.29 38.96
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 6,700 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 1,527 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 1,937 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ E PRIVATE MANUFACTURING, INC. 3,464 8,660.00 103,920.00 30.00 25,980.00
ELEC INCL 866.00 10,392.00 3.00
▇▇▇▇▇▇ WAGE ESC 937.33 11,247.96 3.25
JANITORIAL/CLEANING 577.33 6,927.96 2.00
==============================================================================
TOTALS 11,040.66 132,487.92 38.25
▇▇▇-▇▇▇ ▇▇▇▇ SEABOARD ATLANTIC GARMENTS 925 2,312.50 27,750.00 30.00
ELEC INCL 231.25 2,775.00 3.00
▇▇▇▇▇▇ WAGE ESC 30.01 360.20 .39 1997
JANITORIAL/CLEANING 146.45 1,757.40 1.90
==============================================================================
TOTALS 2,720.21 32,642.60 35.29
▇▇▇-▇▇▇ ▇▇▇▇ HYACK AMERICA, INC. 2,685 6,712.50 80,550.00 30.00 20,137.50
ELEC INCL 671.25 8,055.00 3.00
R/E TAX 4.53 54.36 .02 1997/1998 .00780
▇▇▇▇▇▇ WAGE ESC 87.12 1,045.54 .39 1997
JANITORIAL/CLEANING 268.50 3,222.00 1.20
==============================================================================
TOTALS 7,743.90 92,926.90 34.61
▇▇▇-▇▇▇ ▇▇▇▇ SPORT-ELLE, INC. 1,400 3,500.00 42,000.00 30.00 10,500.00
ELEC INCL 350.00 4,200.00 3.00
R/E TAX 2.38 28.57 .02 1997/1998 .00410
▇▇▇▇▇▇ WAGE ESC 45.43 545.16 .39 1997
==============================================================================
TOTALS 3,897.81 46,773.73 33.41
248-600 EN 19 1412 PAVILION SUITES, INC. 33,333.34 400,000.08 .00
ELEC METER 3,237.16 38,845.92 .00
==============================================================================
TOTALS 36,570.50 483,846.00 .00
▇▇▇-▇▇▇ ▇▇▇▇ KORAM INT'L N.Y. INC. 1,400 3,500.00 42,000.00 30.00 10,500.00
ELEC INCL 350.00 4,200.00 3.00
▇▇▇▇▇▇ WAGE ESC 301.25 3,615.08 2.58 1994
JANITORIAL/CLEANING 221.35 2,656.20 1.90
==============================================================================
TOTALS 4,372.60 52,471.28 37.48
▇▇▇-▇▇▇ ▇▇▇▇ GREENWAVE INC 753 2,250.00 27,000.00 35.86 4,500.00
LATE FEE 10.88 130.56 .17
==============================================================================
TOTALS 2,260.88 27,130.56 36.03
▇▇▇-▇▇▇ ▇▇▇▇ SFH INC. 1,735 5,030.05 60,360.60 34.79
RENT INCREASE: 10/ 1/1998 5,453.68 65,444.16 37.72
ELEC INCL 390.00 4,680.00 2.70
LATE FEE 23.10 277.20 .16
==============================================================================
TOTALS 5,443.15 65,317.80 37.65
▇▇▇-▇▇▇ ▇▇▇▇ COUNCIL OF FASHION DESIGNER 2,506 5,704.95 68,459.40 27.32 5,221.00
RENT INCREASE: 5/ 1/2001 6,233.95 74,807.40 29.85
RENT INCREASE: 5/ 1/2000 6,052.38 72,628.56 28.98
RENT INCREASE: 5/ 1/1999 5,876.09 70,513.08 28.14
ELEC INCL 626.50 7,518.00 3.00
JANITORIAL/CLEANING 396.78 4,761.36 1.90
STORAGE RENT 185.00 2,220.00 .89
==============================================================================
TOTALS 6,913.23 82,958.76 33.10
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ INTERNATIONAL GROUP, L 2,141 3,211.50 38,538.00 18.00 6,423.00
▇▇▇▇▇▇ WAGE ESC 69.47 833.71 .39 1997
LATE FEE 30.00 360.00 .17
JANITORIAL/CLEANING 211.09 2,533.08 1.18
==============================================================================
TOTALS 3,522.06 42,264.79 19.74
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ S.F.H. INC. 1,523 2,353.00 28,236.00 18.54
RENT INCREASE: 4/ 1/1999 2,421.58 29,058.96 19.08
LATE FEE 20.10 241.20 .16
==============================================================================
TOTALS 2,373.10 28,477.20 18.70
▇▇▇-▇▇▇ ▇▇▇▇ LEAD SPORTSWEAR, L.L.C. 1,518 2,227.00 27,324.00 18.00 6,831.00
ELEC INCL 379.50 4,554.00 3.00
▇▇▇▇▇▇ WAGE ESC 49.25 591.11 .39 1996
JANITORIAL/CLEANING 253.00 3,036.00 2.00
==============================================================================
TOTALS 2,958.75 35,505.11 23.39
▇▇▇-▇▇▇ ▇▇▇▇ EXCEL APPAREL INC. 1,510 3,587.50 43,050.00 37.43 9,200.00
ELEC INCL 287.50 3,450.00 3.00
JANITORIAL/CLEANING 181.83 2,181.96 1.90
==============================================================================
TOTALS 4,056.83 48,681.96 42.33
▇▇▇-▇▇▇ ▇▇▇▇ JOROBI INC. 4,739 11,452.58 137,430.96 29.00 35,542.50
RENT INCREASE: 2/ 1/2002 13,032.25 156,387.00 33.00
RENT INCREASE: 2/ 1/2000 12,242.42 146,909.04 31.00
ELEC INCL 1,184.75 14,217.00 3.00
▇▇▇▇▇▇ WAGE ESC 367.18 4,406.20 .93 1996
LATE FEE 111.30 1,335.60 .28
==============================================================================
TOTALS 13,115.81 157,389.76 33.21
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 4,840 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ ** VACANT ** 10,800 0.00 .00 .00
==============================================================================
TOTALS .00 .00 .00
▇▇▇-▇▇▇ ▇▇▇▇ SAN SIMEON INC. 6,425 13,000.00 156,000.00 24.28 39,133.16
ELEC INCL 1,606.25 19,275.00 3.00
▇▇▇▇▇▇ WAGE ESC 2,164.36 25,972.42 4.04 1992
ARREARS AGREEMENT 13,416.95 161,003.40 25.06
LATE FEE 91.80 1,101.60 .17
JANITORIAL/CLEANING 1,015.87 12,190.44 1.90
STORAGE RENT 200.00 2,400.00 .37
==============================================================================
TOTALS 31,495.23 377,942.86 58.82
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ TEXTILES, INC. 1,185 3,456.25 41,475.00 35.00 10,368.75
ELEC INCL 296.25 3,555.00 3.00
JANITORIAL/CLEANING 197.50 2,370.00 2.00
==============================================================================
TOTALS 3,950.00 47,400.00 40.00
▇▇▇-▇▇▇ ▇▇▇▇ CORNELL TRADING INC. 1,954 4,885.00 58,620.00 30.00
ELEC INCL 488.50 5,862.00 3.00
R/E TAX 3.31 39.72 .02 1997/1998 .00570
▇▇▇▇▇▇ WAGE ESC 63.40 760.89 .39
==============================================================================
TOTALS 5,440.21 65,282.61 33.41
▇▇▇-▇▇▇ ▇▇▇▇ GLOBAL APPAREL MGMT. INC. 3,415 9,329.16 111,949.92 32.78 25,612.50
RENT INCREASE: 7/ 1/2001 10,194.22 122,330.64 35.82
RENT INCRESAE: 7/ 1/2000 9,897.30 118,767.60 34.78
RENT INCREASE: 7/ 1/1999 9,609.03 115,308.36 33.77
BASE CHARGE -1,422.91 -17,074.92 -5.00
ELEC INCL 853.75 10,245.00 3.00
LATE FEE 34.86 418.32 .12
==============================================================================
TOTALS 8,794.86 105,538.32 30.90
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ INC. 4,000 12,950.00 155,400.00 38.85
RENT INCREASE: 4/ 1/2000 13,650.00 163,800.00 40.95
RENT INCREASE: 4/ 1/1999 13,300.00 159,600.00 39.90
ELEC INCL 1,050.00 12,600.00 3.15
R/E TAX 94.80 1,137.71 .28 1990/1991 .01200
JANITORIAL/CLEANING 633.19 7,598.28 1.90
==============================================================================
TOTALS 14,727.99 176,735.99 44.18
▇▇▇-▇▇▇ ▇▇▇▇ LANE ▇▇▇▇▇▇ INC. 6,465 16,162.50 193,950.00 30.00
ELEC INCL 1,804.75 21,657.00 3.35
R/E TAX 158.01 1,896.19 .29 1990/1991 .02000
▇▇▇▇▇▇ WAGE ESC 2,808.61 33,703.34 5.21 1991
JANITORIAL/CLEANING 1,020.47 12,245.64 1.89
==============================================================================
TOTALS 21,954.34 263,452.17 40.75
▇▇▇-▇▇▇ ▇▇▇▇ TOPTRANS CORP. 1,800 4,800.00 57,600.00 32.00 14,400.00
ELEC INCL 450.00 5,400.00 3.00
WTR/SPKL 20.00 240.00 .13
▇▇▇▇▇▇ WAGE ESC 116.25 1,395.00 .78 1996
JANITORIAL/CLEANING 244.31 2,931.72 1.63
==============================================================================
TOTALS 5,630.56 67,566.72 37.54
(table continued)
ACCOUNT BILLING ELECTRIC INCLUSION/ SPECIAL LEASE
FREQUENCY CLAUSE LITERALS COMMENTS BEGINS EXPIRES
248-001 MONTHLY 04/01/1989 02/28/2006
MONTHLY
248-002 MONTHLY 12000.00 02/01/1992 01/31/2009
248-003 MONTHLY 12/20/1992 12/31/2002
MONTHLY
248-004 MONTHLY 1008.00 09/30/2002
248-005 MONTHLY 02/17/1994 04/30/2007
248-006 MONTHLY
248-007 MONTHLY 11/01/1997 01/28/2012
248-225 MONTHLY 01/12/1998 01/31/2001
SEMIANNUAL
248-227 MONTHLY 2331 06/05/1998 06/30/1999
SEMIANNUAL
MONTHLY
248-229 MONTHLY 3834.00 05/30/1997 06/30/2002
SEMIANNUAL
MONTHLY
248-231 MONTHLY 10929.00 05/01/1996 04/30/2001
MONTHLY
248-232 MONTHLY 04/11/1998 07/31/2003
SEMIANNUAL
248-233 MONTHLY
248-243 MONTHLY 3750.00 05/01/1995 04/30/2000
MONTHLY
248-250 MONTHLY 04/29/1997 04/30/2002
MONTHLY
248-300 MONTHLY 03/03/1998 03/31/2008
248-306 MONTHLY
248-350 MONTHLY 57210.96 08/15/1989 08/31/2006
MONTHLY
248-375 MONTHLY 44951.50 01/01/1997 08/31/2006
248-390 MONTHLY 44951.50 01/01/1997 12/31/2006
248-400 MONTHLY
248-424 MONTHLY 10/09/1997 10/31/1999
SEMIANNUAL
MONTHLY
248-425 MONTHLY 6477.00 12/01/1996 11/30/2001
248-426 MONTHLY 06/09/1998 09/30/2003
248-428 MONTHLY 02/25/1998 02/28/2002
248-430 MONTHLY 02/26/1998 04/30/2003
248-432 MONTHLY 06/09/1998 10/31/2003
248-433 MONTHLY 04/27/1998 07/31/2003
248-434 MONTHLY
248-450 MONTHLY 7701.00 09/01/1994 08/31/1998
MONTHLY
MONTHLY
248-452 MONTHLY 10629.96 03/09/1990 04/30/2000
SEMIANNUAL
248-456 MONTHLY 5724.00 09/01/1994 04/30/2000
MONTHLY
248-458 MONTHLY
248-460 MONTHLY 09/01/1997
248-462 MONTHLY 02/26/1998 06/30/2002
248-464 MONTHLY 2880.00 08/03/1993 08/31/1998
MONTHLY
248-466 MONTHLY 4230.00 05/20/1997 07/31/2000
MONTHLY
248-476 MONTHLY
248-477 MONTHLY 8601 01/01/1990 12/31/1998
MONTHLY
248-479 MONTHLY 12/01/1997 10/31/1998
MONTHLY
248-480 MONTHLY 07/30/1998 10/02/1998
248-481 MONTHLY
248-483 MONTHLY 3837 01/01/1990 12/31/1998
MONTHLY
248-485 MONTHLY 8556.00 02/01/1993 08/31/1998
MONTHLY
248-487 MONTHLY 1875.00 06/06/1994 06/30/2001
248-489 MONTHLY 3663.00 10/14/1994 12/31/1998
248-492 MONTHLY 3768.00 06/04/1996 06/30/1999
MONTHLY
248-500 MONTHLY 10551.00 10/15/1993 10/31/2000
MONTHLY
248-502 MONTHLY
248-504 MONTHLY 6171.00 03/15/1991 01/31/1999
MONTHLY
248-506 MONTHLY 6675.00 10/09/1996 10/31/1998
MONTHLY
248-508 MONTHLY 01/29/1998 01/31/2002
SEMIANNUAL
248-509 MONTHLY 03/16/1998 08/31/2003
248-511 MONTHLY 3093.00 01/01/1996 03/31/1999
MONTHLY
248-512 MONTHLY 3093.00 05/20/1994 05/31/2000
MONTHLY
248-527 MONTHLY 11/01/1997 11/30/2000
SEMIANNUAL
248-529 MONTHLY 13215.00 08/31/1991 08/31/2001
MONTHLY
248-533 MONTHLY 6600.00 12/18/1995 12/31/2000
MONTHLY
248-535 MONTHLY 02/01/1995 01/31/2001
MONTHLY
248-537 MONTHLY 02/01/1984 01/31/2000
MONTHLY
248-539 MONTHLY 06/02/1998 06/30/2001
248-541 MONTHLY 4377.00 05/02/1997 05/31/1999
SEMIANNUAL
248-542 MONTHLY 900 01/01/1998 12/31/1998
MONTHLY
248-552 MONTHLY
248-554 MONTHLY 8289.00 08/01/1996 07/31/2000
MONTHLY
248-555 MONTHLY 11358.00 10/07/1996 10/31/2001
MONTHLY
248-557 MONTHLY 5076.00 09/08/1997 03/31/2000
SEMIANNUAL
MONTHLY
248-560 MONTHLY 01/27/1998 01/31/2001
SEMIANNUAL
248-562 MONTHLY
248-564 MONTHLY 03/01/1998 02/28/2002
248-566 MONTHLY 6450.00 03/01/1995 03/31/2000
MONTHLY
248-575 MONTHLY
248-577 MONTHLY
248-579 MONTHLY
248-580 MONTHLY 03/02/1998 03/31/2002
248-581 MONTHLY 2775 01/01/1998 12/31/2000
MONTHLY
248-583 MONTHLY 09/03/1997 09/30/2002
SEMIANNUAL
MONTHLY
248-585 MONTHLY 4200.00 03/17/1997 01/31/2001
SEMIANNUAL
MONTHLY
248-600 MONTHLY 04/01/1995 05/31/2004
248-625 MONTHLY 4200.00 01/31/2001
MONTHLY
248-627 MONTHLY 03/31/2000
248-629 MONTHLY 4680.00 10/01/1994 09/30/1999
248-631 MONTHLY 7518. 04/26/1995 04/30/2002
248-635 MONTHLY 04/14/1997 12/31/1998
MONTHLY
248-637 MONTHLY
248-638 MONTHLY 05/01/1997 09/30/1999
248-639 MONTHLY 4554.00 05/23/1997 09/30/1998
MONTHLY
248-650 MONTHLY 3450.00 01/13/1994 01/31/1999
248-652 MONTHLY 02/01/1996 01/31/2004
MONTHLY
248-658 MONTHLY
248-660 MONTHLY
248-675 MONTHLY
248-700 MONTHLY 19275.00 02/06/1995 11/30/2000
MONTHLY
248-702 MONTHLY 08/03/1998 07/31/2001
248-704 MONTHLY 12/10/1997 02/28/2003
SEMIANNUAL
MONTHLY
248-706 MONTHLY 10245 06/14/1995 06/30/2002
248-725 MONTHLY 12600.00 03/20/1991 03/31/2001
SEMIANNUAL
248-735 MONTHLY 21657.00 05/15/1991 07/31/1998
SEMIANNUAL
MONTHLY
248-750 MONTHLY 5400.00 05/01/1995 04/30/2001
MONTHLY
----------------------------------------------------------------------------------------------
CHARGE SQUARE MONTHLY ANNUAL HIGH LOW AVERAGE
TYPE FEET CHARGE CHARGE PSF PSF PSF
----------------------------------------------------------------------------------------------
BASE CHARGE 334,295 697,775.71 8,373,308.52 54.96 -31.00 25.05
ELEC INCL 188,287 47,215.08 566,580.96 15.04 .82 3.01
WTR/SPKL 8,668 73.00 876.00 .13 .09 .10
ELEC METER 53,172 18,970.51 227,646.12 5.09 2.37 4.28
R/E TAX 60,011 5,430.01 65,161.36 4.60 .02 1.09
OPER COST ESC 32,692 581.12 6,973.44 .21 .21 .21
FUEL/UTIL ESC. 798 .53 6.36 .01 .01 .01
▇▇▇▇▇▇ WAGE ESC 180,254 23,485.78 281,831.22 5.21 .28 1.56
ARREARS AGREEMENT 6,425 16,252.40 195,028.80 25.06 25.06 30.35
METERED WATER 798 242.45 2,909.40 1.11 1.11 3.65
NSF CHECK CHARGE 2,496 25.00 300.00 .12 .12 .12
LATE FEE 55,454 1,062.70 12,752.40 .65 .03 .23
ADDITIONAL RENT 87,806 66,348.96 796,187.52 116.84 1.00 9.07
AIR-CON INCOME 17,567 3,160.66 37,972.92 2.31 .10 2.16
JANITORIAL/CLEANING 200,880 31,153.76 373,845.12 2.09 .76 1.86
SUBMTR FEE 53,970 180.00 2,160.00 .45 .02 .04
STORAGE RENT 22,796 2,105.00 25,260.00 2.04 .37 1.11
==============================================================================================
BUILDING TOTALS 292,508 914,062.67 10,968,755.14 116.84 -31.00 32.81
(table continued)
--------------------------------------------------------------------------------
SPACE SUMMARY
TOTALS
--------------------------------------------------------------------------------
TOTAL SECURITY 743,506.98
SPACE SUMMARY: UNITS SQUARE FEET
-----------------------------------------------
VACANCIES : 18 41,787
OCCUPIED : 81 292,508
===============================================
TOTALS : 99 334,295
WARNING: SOME TENANTS DO NOW HAVE SQUARE FEET ENTIRES, THEREFORE THE COMPUTED
PSI FIGURES MAY BE INCORRECT. PLEASE CHECK YOUR TENANT MASTER
RECORDS AND SUPPLY THE MISSING INFORMATION IN FIELD NUMBER 16
WARNING: THE COMPUTED SQUARE FEET OF: 334,295, DOES NOT AGREE WITH THE
BUILDING MASTER SQUARE FEET OF: ALL PSF FIGURES REFLECTED WERE BASED
ON THE AVAILABLE SQUARE FEET
PLEASE CHECK YOUR FIGURES. TENANT MASTER RECORDS REFLECT THE SQUARE
FEET IN FIELD NUMBER 16
GRAND TOTALS
ANNUALIZED RENT ROLL
------------------------------------------------------------------------------------------------
CHARGE SQUARE MONTHLY ANNUAL HIGH LOW AVERAGE
TYPE FEET CHARGE CHARGE PSF PSF PSF
------------------------------------------------------------------------------------------------
BASE CHARGE 745,550.71 8,946,608.52 62.38 -31.00 .00
ELEC INCL 47,215.08 566,580.96 15.04 .82 .00
WTR/SPKL 73.00 876.00 .13 .09 .00
ELEC METER 18,970.51 227,646.12 5.09 2.37 .00
R/E TAX* 5,430.01 65,161.36 4.60 .02 .00
MISC. 2.00 24.00 .16 .16 .00
OPER COST ESC 581.12 6,973.44 .21 .21 .00
FUEL/UTIL ESC. .53 6.36 .01 .01 .00
SECURITY 5,750.00 69,000.00 112.00 2.32 .00
▇▇▇▇▇▇ WAGE ESC 23,485.78 281,831.22 5.21 .28 .00
ARREARS AGREEMENT 16,252.40 195,028.80 25.06 25.06 .00
METERED WATER 242.45 2,909.40 1.11 1.11 .00
NSF CHECK CHARGE 25.00 300.00 .12 .12 .00
LATE FEE 1,062.70 12,752.40 .65 .03 .00
ADDITIONAL RENT 66,348.96 796,187.52 116.84 1.00 .00
AIR-CON INCOME 3,160.66 37,927.92 2.31 .10 .00
JANITORIAL/CLEANING 31,153.76 373,845.12 2.09 .76 .00
SUBMTR FEE 180.00 2,160.00 .45 .02 .00
STORAGE RENT 2,105.00 25,260.00 2.04 .37 .00
COPIES 334.00 4,008.00 1.86 .02 .00
FAXING 128.70 1,544.40 3.83 .02 .00
PHONE/VENDING MACHINE 1,000.00 12,000.00 17.91 8.96 .00
============================================================================================
GRAND TOTALS* 301,335 969,052.37 11,628,631.54 116.84 -31.00 16.92
(table continued)
--------------------------------------------------------------------------------
SPACE SUMMARY
TOTALS
--------------------------------------------------------------------------------
TOTAL SECURITY: 840,231.98
SPACE SUMMARY : UNITS SQUARE FEET
-----------------------------------------------
VACANCIES : 20 42,327
OCCUPIED : 124 301,335
===============================================
TOTALS : 144 687,324
* M.E. ▇▇▇▇ (Suite 1612) does not pay real estate escalations. The monthly
charge indicated for this tenant is $425.34 and the annual charge is
$5,104.14. The totals should be reduced by these amounts.
AGREEMENT OF LEASE
BETWEEN
FASHION GALLERY OWNERS, LLC
AND
▇▇▇▇▇ LTD.
INDEX
ARTICLE 1 - Term......................................................... 1
ARTICLE 2 Rent......................................................... 2
ARTICLE 3 Real Estate Tax Payments; Additional Escalation.............. 3
ARTICLE 4 Cost of Electricity for Demised Premises..................... 6
ARTICLE 5 Delivery of Premises......................................... 9
ARTICLE 6 Use.......................................................... 9
ARTICLE 7 Tenant Construction; Mechanics Liens......................... 10
ARTICLE 8 Repairs and Maintenance...................................... 14
ARTICLE 9 Requirements of Law.......................................... 14
ARTICLE 10 Insurance Requirements....................................... 15
ARTICLE 11 Damage or Destruction by Fire or Other Casualty.............. 18
ARTICLE 12 Subordination; Attornment; Quiet Enjoyment................... 20
ARTICLE 13 Tenant's Certificates........................................ 23
ARTICLE 14 Assignment and Subletting.................................... 23
ARTICLE 15 Cleaning; Sanitary Maintenance............................... 27
ARTICLE 16 Air Conditioning; Elevators; Services; Suspension of
Services..................................................... 28
ARTICLE 17 Access To Premises........................................... 30
ARTICLE 18 Adjacent Excavation - Shoring................................ 32
ARTICLE 19 Eminent Domain............................................... 32
ARTICLE 20 Lobby Directory;- Signs; Use of Name......................... 33
ARTICLE 21 Experts Fees; No Professional Responsibility................. 34
ARTICLE 22 Security..................................................... 34
ARTICLE 23 Bankruptcy................................................... 35
ARTICLE 24 End of Term.................................................. 36
ARTICLE 25 Default...................................................... 37
ARTICLE 26 Curing Tenant's Defaults..................................... 41
ARTICLE 27 Indemnity.................................................... 41
ARTICLE 28 Exculpation; Consents........................................ 42
ARTICLE 29 Brokers...................................................... 43
ARTICLE 30 Notices...................................................... 43
ARTICLE 31 Reserved..................................................... 43
ARTICLE 32 Waiver of Trial by Jury...................................... 44
ARTICLE 33 No Waiver.................................................... 44
ARTICLE 34 Rules and Regulations........................................ 44
ARTICLE 35 No Representations by Landlord............................... 45
ARTICLE 36 Inability to Perform (Force Majeure)......................... 45
ARTICLE 37 Captions..................................................... 45
ARTICLE 38 Successors and Assigns....................................... 46
ARTICLE 39 Miscellaneous................................................ 46
ARTICLE 40 Additional Definitions....................................... 47
EXHIBITS
Exhibit A - Floor Plan
Exhibit B - Cleaning and Services and Maintenance of Demised Premises
Exhibit C - Improvements Exhibit
Exhibit D - Intentionally Omitted
Exhibit E - Roster of Corporate Officers
AGREEMENT OF LEASE, made as of this day of August, 1998, between FASHION
GALLERY OWNERS, LLC, a New York limited liability company, having an office at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as
"Landlord") and ▇▇▇▇▇ LTD., a corporation, having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Tenant").
W I T N E S E T H
Landlord hereby leases to Tenant the entire twenty-second (22nd) floor,
substantially as shown on the plan annexed hereto as Exhibit A (which space is
hereinafter referred to as the "Demised Premises") in the building known as
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (hereinafter referred to as the "Building")
upon the terms and conditions hereinafter provided in this Lease.
The parties hereby covenant as follows:
ARTICLE 1 - TERM
----
1.01 The "Term" of this Lease shall commence on the Commencement
Date (as defined below) and shall end at midnight on the expiration of Lease
Year Ten, as defined below (such date being hereinafter referred to as the
"Expiration Date"), or on such earlier date upon which the Term of this Lease
shall expire or be cancelled or terminated pursuant to any of the conditions
or covenants of this Lease or pursuant to law. Notwithstanding the
Commencement Date of this Lease, this Lease shall be effective from and after
the date hereof and all of the provisions of this Lease shall be effective as
of the date hereof, except for those provisions of this Lease which
specifically commence from and after the Commencement Date.
1.02 The "Commencement Date" shall be August 11, 1998. "Lease Year
One" shall be deemed the first year of the Term and shall commence on the
Commencement Date and shall end on the first anniversary of the last day of
the month in which the Commencement Date occurred. If the Commencement Date
shall be on the first day of the month, Lease Year One shall commence on such
date. The term "Lease Year" shall refer to each year of the Term including
Lease Year One. Each succeeding Lease Year after Lease Year One shall run for
the successive twelve month period from the expiration of the preceding Lease
Year, and shall be consecutively numbered (i.e. the fifth Lease Year shall be
known as Lease Year Five).
1.03 Reserved.
1.04 Reserved.
1.05 Tenant waives any right to rescind this Lease under Section
223-a of the New York Real Property Law or under any present or future statute
of similar import then in force and further expressly waives the right to
recover any damages which may result from Landlord's failure to deliver
possession of the Demised Premises on the Commencement Date. Tenant agrees
that this Section 1.05 is intended to constitute "an express provision to the
contrary" within the meaning of said Section 223-a.
ARTICLE 2 - RENT
----
2.01 Tenant shall pay to Landlord during the Term of this Lease,
without any set-off, prior to demand therefor or any deductions whatsoever,
the Base Annual Rent, as set forth in Section 2.02 below, in equal monthly
installments, in advance, on the first day of each and every calendar month
throughout the Term of this Lease. Simultaneously with the execution of this
Lease, Tenant has paid to Landlord one full month of Base Annual Rent, if by
check subject to collection, which amount shall be credited on a per diem
basis toward the payment of the installment(s) of Base Annual Rent first due
and payable hereunder.
2.02 The Base Annual Rent payable for Lease Year One is Three
Hundred Ninety Nine Thousand Nine Hundred Thirty and 00/100ths Dollars
($399,930.00) per annum. If the Commencement Date is not the first day of a
calendar month, Base Annual Rent for the month in which such day occurs shall
be prorated and Tenant shall pay such prorated amount on such first day. The
Base Annual Rent shall be increased on the commencement date of Lease Year Two
and on the first day of each succeeding Lease Year thereafter during the Term
by an amount equal to three percent (3%) of the Base Annual Rent payable for
the immediately preceding Lease Year.
2.03 Notwithstanding the foregoing, there shall be no Base Annual
Rent (except for the increase to Base Annual Rent attributable to electricity
pursuant to Section 4.01 of this Lease) payable for the first six (6) months
of Lease Year One; provided, however, that in the event Tenant is dispossessed
or this Lease is terminated by reason of Tenant's default, the Base Annual
Rent for such periods shall be immediately due and payable.
2.04 "Additional Rent" for purposes of this Lease means all fees,
charges and payments payable by Tenant to Landlord, including, without
limitation, the payments required under Article 3 of this Lease. The term
"Rent" or "rent" or "rental" for purposes or this Lease means Base Annual Rent
payable pursuant to this Article 2 and all Additional Rent. If no time period
is specified herein for the payment of any item of Rent, such amount shall be
payable within ten (10) days after Tenant's receipt of Landlord's invoice. All
Rent shall be paid in lawful money of the United States, to Landlord, at the
office of Landlord or at such other place as Landlord may, from time to time,
designate by written notice to Tenant. Tenant shall pay Rent by good and
sufficient check (subject to collection) drawn on a New York City bank which
is a member of the New York Clearing House Association or a successor thereto.
2.05 If Tenant fails to pay any Rent, within ten (10) days after the
same become due and payable, such unpaid amounts shall bear interest at the
lesser of (a) 18% per annum or (b) the maximum rate permitted by law,
calculated on the basis of actual days elapsed, based on a 360-day year, from
the date such Rent became due and payable to the date of payment. The
provisions herein for such interest shall not be construed to extend the date
for payment of any sums required to be paid by Tenant hereunder or to relieve
Tenant of its obligation to pay all such sums at the time or times herein
stipulated. Notwithstanding the imposition of such interest, Tenant shall be
in default under this Lease if any or all payments required to be made by
Tenant are not made at the time herein stipulated, and neither the demand for,
nor collection by Landlord of such interest shall be construed as a curing of
such default on the part of the Tenant. In the event Tenant fails to pay any
such interest charge beyond any applicable grace periods, such failure shall
be considered a default hereunder.
2.06 In the event the Rent or any part thereof required to be paid
by Tenant under the provisions of this Lease during the Term shall become
uncollectible or shall be reduced or required to be reduced or refunded by
virtue of any Federal, State, County or City law, order or regulation, or by
any direction of a public officer or body pursuant to law, or the orders,
rules, codes or regulations of any organization or entity formed pursuant to
law, whether such organization or entity be public or private, then Landlord,
at its option, may at any time thereafter terminate this Lease, by not less
than thirty (30) days' prior written notice to Tenant, on a date set forth in
said notice, in which event this Lease and the term hereof shall terminate and
come to an end on the date fixed in said notice as if said date were the date
originally fixed herein for the termination of the Term of this Lease.
However, Landlord shall not have the right to so terminate this Lease if: (i)
Tenant within such thirty (30) day period shall agree, in writing, that the
rental herein reserved is a reasonable rental and to continue to pay said
rental; and (ii) such agreement by Tenant shall then be legally enforceable by
Landlord. In the event Landlord desires to exercise its option to terminate
this Lease, as set forth above, but is prohibited from doing so, and the
agreement set forth in the foregoing sentence is not legally enforceable, both
pursuant to any such law, order, rule or regulation referred to above, then
Tenant shall enter into such agreements and take such other steps as Landlord
requests and as may be legally permissible, to permit Landlord to collect the
maximum rents which from time to time during the continuance of such legal
rent restriction may be legally permissible (but not in excess of the amounts
reserved therefor under this Lease). Upon the termination of such legal rent
restriction, (a) Rent shall be payable in accordance with the amounts reserved
herein for the periods following such termination and (b) Tenant shall pay to
Landlord, to the maximum extent legally permissible, an amount equal to (i)
the Rent that would have been paid pursuant to this Lease but for such legal
restriction, less (ii) the Rent actually paid by Tenant during the period such
legal rent restriction was in effect.
ARTICLE 3 - REAL ESTATE TAX PAYMENTS; ADDITIONAL ESCALATION
-----------------------------------------------
3.01 (a) If the Taxes for any Tax Year during the Term of this Lease
commencing after the Base Tax Year shall exceed the Base Tax, Tenant shall pay
for such Tax Year an amount (herein called "Tax Payment") equal to Tenant's
Proportionate Share of the excess. The Tax Payment for each Tax Year shall be
due and payable, in advance, in twelve monthly installments (otherwise, in one
payment as provided in Section 3.01 (b), below), the first such installment to
be paid ten (10) days prior to the commencement of such Tax Year and each of
the next eleven (11) installments to be paid on the first (1st) day of each
calendar month during the Term. Landlord shall furnish Tenant a written
statement of the amount payable by Tenant for the new Tax Year under this
Section 3.01. If, however, such written statement for any Tax Year is
furnished to Tenant after the due date for the payment of Taxes, then (a)
until the first day of the month following the date such written statement is
furnished to Tenant, Tenant shall pay to Landlord on the first day of each
month an amount equal to one-twelfth of the Tax Payment for the preceding Tax
Year or such greater amounts which Landlord estimates as Tenant's Tax Payment
for the new Tax Year, which estimated amount shall not exceed 120% of the Tax
Payment for the preceding Tax Year; (b) promptly after the written statement
for the new Tax Year is furnished to Tenant, Landlord shall give notice to
Tenant stating whether the installments of the Tax Payment previously made for
such Tax Year were greater or less than the installments of the Tax Payment
required to be made for such Tax Year in accordance with the Tax Statement,
and (i) if there shall be a deficiency, Tenant shall pay the amount thereof
within ten (10) days after demand therefor, or (ii) if there shall be an
overpayment, Landlord shall promptly either refund to Tenant the amount
thereof or permit Tenant to credit the amount therefor against subsequent
payments under this Section 3.01; and (c) Tenant shall within the ten (10)
days after demand thereof pay to Landlord the balance of the first semi-annual
installment of Tenant's Tax Payment for such Tax Year. If there shall be any
increase or decrease in the Taxes for any Tax Year, whether during or after
such Tax Year, the Tax Payment for such Tax Year shall be adjusted and paid or
refunded, as the case may be, substantially in the same manner as provided in
the preceding sentence. If the Base Tax is reduced as a result of an
appropriate proceeding or otherwise, Landlord shall give notice to Tenant of
the amount by which the Tax Payments previously made were less than the Tax
Payments required to be made under this Section 3.01. In addition, Landlord
may require Tenant to prepay in monthly installments the amount determined in
good faith by Landlord as the amount of Tax Payment for the next Tax Year
("Estimated Tax Payment") provided that the estimated Tax Payment may not
exceed 120% of the Tax Payment for the current Tax Year.
(b) If, during the Term of this Lease, Taxes are required to be
paid (either to the appropriate taxing authorities or as tax escrow payments
to a holder of a mortgage encumbering the Building, or the holder of a
superior lease, or otherwise) other than as provided in Section 3.01 (a), then
at Landlord's option, Tenant's Tax Payments shall be correspondingly
accelerated or revised so that said Tenant's Tax Payments are due at least 10
days prior to the date payments are due to any of the foregoing entities. The
benefit of any discount for an early payment or prepayment of Taxes shall
accrue solely to the benefit of Landlord and such discount shall not be
subtracted from Taxes or Tenant's Tax Payments.
(c) If Landlord shall receive a refund of Taxes for any Tax
Year, Landlord shall either pay to Tenant, or permit Tenant to credit against
subsequent payments under this Section 3.01, Tenant's Proportionate Share of
the net refund (after deducting from such total refund the costs and expenses,
including, but not limited to, reasonable and necessary appraisal, accounting
and legal fees actually incurred in obtaining the same, to the extent that
such costs and expenses were not included in Taxes for such Tax Year);
provided, however, such payment or credit to Tenant shall in no event exceed
Tenant's Tax Payment paid for such Tax Year.
(d) If a Tax Year ends after the expiration or termination of
the Term of this Lease, the Tax Payment therefor shall be prorated to
correspond to that portion of such Tax Year occurring within the Term of this
Lease. If the real estate fiscal tax year of The City of New York shall be
changed during the term hereof, any Taxes for a real estate fiscal tax year, a
part of which is included within a particular Tax Year and a part of which is
not so included, shall be apportioned on the basis of the number of days in
the real estate tax year included in the particular Tax Year for the purposes
of making the computations herein.
(e) Anything to the contrary provided in this Section 3.01
notwithstanding, in the event that the Building is sold (a "Sale") at any time
after the Commencement Date but on or prior to the fifth (5th) anniversary of
the Commencement Date and the Assessed Valuation (as hereinafter defined) of
the Building is increased subsequent to such Sale solely as a result of such
Sale (the amount of such increase being referred to herein as the "Assessment
Increase"), then Tenant's Tax Payment with respect to the Assessment Increase
only shall not exceed an amount equal to 110% of Tenant's Tax Payment for the
immediately preceding Tax Year. For purposes of this subparagraph (e), (i) a
"Sale" shall not include any sale-leaseback transaction whereby Landlord
remains in control of the Building but shall include, to the extent that the
same increases Assessed Valuation, sale of partial interests in the real
estate such as a tenancy in common interest, sale of the stock, partnership
interests or assets of Landlord's entity or controlling interest therein or a
long term lease of the Building and (ii) "Assessed Valuation" shall mean the
amount for which the Building is assessed pursuant to the applicable
provisions of the New York City Charter and of the Administrative Code of The
City of New York for the purpose of imposition of Taxes.
3.02 Reserved.
3.03 Reserved.
3.04 In no event shall Base Annual Rent as the same may be increased
by this Article, ever be reduced by operation of this Article 3 and Tenant's
obligation to pay any Additional Rent under this Article 3 or otherwise shall
survive the expiration or sooner termination of this Lease.
3.05 The computation under this Article is intended to constitute a
formula for an agreed rental escalation and may or may not constitute an
actual reimbursement to Landlord for costs and expenses paid by Landlord with
respect to the Building.
3.06 If at any time during the Term of this Lease, Landlord expends
any sums for alterations or capital improvements to the Building which are
required to be made pursuant to any Legal Requirement or which Landlord
reasonably deems necessary in order to maintain the first-class character of
the Building, then Tenant shall pay to Landlord, as Additional Rent, Tenant's
Proportionate Share of all such sums within ten (10) days after demand
therefor. If, however, the cost of any such alterations or capital
improvements are generally amortized over a period of time pursuant to
generally accepted accounting principles consistently applied, then Tenant
shall pay to Landlord, as Additional Rent, during each year in which occurs
any part of the Term of this Lease, Tenant's Proportionate Share of the
reasonable annual amortization (based upon the shortest useful life of each
such alteration or improvement). For purposes of this Section 3.06, the cost
of any such alterations or improvements shall be deemed to include the cost of
preparing any plans therefor and the fees for filing any such plans. The cost
of such alterations or improvements shall be reasonably substantiated by
Landlord to Tenant.
ARTICLE 4 - COST OF ELECTRICITY FOR DEMISED PREMISES
----------------------------------------
4.01 Landlord agrees to supply the Demised Premises, as of the
Commencement Date, with such electric current as Tenant shall reasonably
require (consistent with the existing electrical capacity contained in the
Demised Premises) for Tenant's wiring facilities and equipment within the
Demised Premises and in consideration thereof, Tenant agrees that the Base
Annual Rent reserved in this Lease shall be increased by the sum of
Thirty-Three Thousand Three Hundred Twenty-Seven and 50/100ths Dollars
($33,327.50) per annum subject to survey as provided in Section 4.02 hereof
(the "Base Charge"). The Base Charge increase to Base Annual Rent shall in no
event be subject to reduction pursuant to the provisions of this Article, but
shall be subject to increase as hereinafter provided. Landlord shall not be
liable in any way to Tenant for any failure or defect in the supply or
character of electric energy furnished to the Demised Premises or if the same
is changed or is no longer available or suitable for Tenant's requirements or
is interrupted as a result of any cause not attributable to Landlord.
4.02 (a) Landlord, from time to time during the Term of this Lease,
shall have the right to select a reputable electrical engineer or consultant
(the "Consultant") to prepare surveys of the electrical consumption within the
Demised Premises in order to determine whether the Base Charge for electricity
(as the same may have been increased by previous surveys and determinations
made by the Consultant) is less than the Electrical Consumption Charge (as
defined in Section 4.03 below) which should be charged to Tenant. If the Base
Charge (as the same may have been increased by previous surveys and
determinations) shall be less than the Electrical Consumption Charge, which
the Consultant determines to be applicable to Tenant (as the same may have
been increased by previous surveys and determinations) then, effective as of
the date of the Consultant's determination, the Base Charge (as the same may
have been previously increased pursuant to the provisions hereof) shall be
further increased by an amount equal to the excess of (i) the then Electrical
Consumption Charge determined to be applicable by the Consultant over (ii) the
Base Charge (plus any previous increases to the Base Charge pursuant to the
provision hereof). Notwithstanding the foregoing, the first survey shall be
made within one hundred eighty (180) days of the Commencement Date of this
Lease, and any increase to the Base Charge resulting from such survey shall be
retroactive to the Commencement Date.
(b) Surveys made by the Consultant shall be based upon the use
of such electric current on Business Days, and such other days and hours when
Tenant uses electricity for lighting and for the operation of the machinery,
appliances and equipment used by Tenant in the Demised Premises.
(c) The cost of the first survey shall be borne by Landlord.
Tenant shall pay the fees of the Consultant making all other surveys if such
survey results in an increase in the Electrical Consumption Charge. The
findings of the Consultant shall be binding and conclusive on Landlord and
Tenant; provided, however, that Tenant may dispute the findings of the
Consultant in accordance with Section 4.08, below.
4.03 The "Electrical Consumption Charge" for electricity consumed by
Tenant within the Demised Premises, as determined by the Consultant, shall be
computed by multiplying the Electric Rate (as defined below) by Tenant's
consumption of electricity as determined by the Consultant. In no event,
however, shall the Electrical Consumption Charge be less than Landlord's
actual cost of acquiring and distributing electricity to Tenant. The term
"Electric Rate" shall mean, at the time in question, the public utility rate
schedule including all surcharges, taxes, fuel adjustments, taxes regularly
passed on to customers by the public utility, and other sums payable in
respect thereof for the supply of electrical energy to Landlord for the entire
Building.
4.04 Tenant's use of electric energy in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in, or otherwise serving, the Demised Premises. In order to insure
that such capacity is not exceeded and to avert possible adverse effect upon
the Building's electric service, Tenant shall not, without Landlord's prior
written consent in each instance (which shall not be unreasonably delayed or
withheld), connect any fixtures, appliances or equipment to the Building's
electric distribution system other than ordinary office equipment exclusive of
major computers as aforesaid, or make any alteration or addition to the
electric system of the Demised Premises existing on the Commencement Date.
Should Landlord grant such consent, all additional risers or other equipment
required therefor shall be provided by Landlord and the cost thereof shall be
paid by Tenant to Landlord within ten (10) days of demand. As a condition to
granting such consent, Landlord may require Tenant to agree to an increase in
the Base Annual Rent by an amount which will reflect the value to Tenant of
the potential additional electric energy to be made available to Tenant by the
estimated additional capacity of such additional risers of the connected load
of such fixtures, appliances or equipment (measured, in respect of risers, at
their lowest point in the Building). The amount of such increase shall be
determined by the Consultant. Such determination shall be binding and
conclusive upon the parties unless disputed by Tenant within thirty (30) days
of receipt of such Consultant's report. Landlord, its agents and Consultants
may survey the electrical fixtures, appliances and equipment in the Demised
Premises and Tenant's use of electric energy therein from time to time after
the initial survey described above to ascertain whether Tenant is complying
with its obligations under this Section.
4.05 Tenant shall not place a load upon any floor of the Demised
Premises exceeding the floor load per square foot area which it was designed
to carry and which is allowed by law.
4.06 Tenant, at its sole cost and expense, shall furnish and install
all replacement lighting, tubes, lamps and bulbs required in the Demised
Premises. Tenant, at its sole cost and expense, shall install all replacement
ballasts in the Demised Premises using Landlord's designated contractor.
4.07 Landlord reserves the right to discontinue furnishing electric
energy to Tenant in the Demised Premises at any time upon not less than thirty
(30) days' notice to Tenant so long as: (i) the discontinuance is not
discriminatory to Tenant; and (ii) electric service is available from the
public utility or otherwise. If Landlord exercises such right this Lease shall
continue in full force and effect and shall be unaffected thereby, except that
from and after the effective date of such termination (which date shall not be
earlier than the date on which the public utility company shall begin
furnishing electrical energy directly to Tenant), (a) Landlord shall not be
obligated to furnish electric energy to Tenant and (b) the Base Annual Rent
shall be reduced by the Base Charge then in effect. If Landlord so
discontinues furnishing electric energy to Tenant, such electric energy may be
furnished to Tenant by means of the then existing Building system feeders,
risers and wiring to the extent that the same are available, suitable and safe
for such purpose. All meters and additional panel boards, feeders, wiring and
other conductors and equipment which may be required to obtain electric energy
directly from such public utility company shall be furnished and installed by
Landlord at Tenant's expense; but Landlord may, at its option, before
commencing any such work or at any time thereafter, require Tenant to furnish
Landlord such security, in form (including, without limitation, a bond issued
by a corporate surety licensed to do business in New York), and amount, as
Landlord shall reasonably deem necessary to assure the payment for such work
by Tenant. The change at any time of the character of electric service in the
Demised Premises shall not make Landlord liable or responsible to Tenant, for
any loss, damages or expenses which Tenant may sustain as a result thereof.
4.08 In instances wherein Tenant has the right to dispute the
determinations made by the Consultant, Tenant shall only dispute such reports
by submitting, within thirty (30) days after receipt of the Consultant's
report, a written report by an electrical consultant retained by Tenant at
Tenant's expense. In the event that the Consultant and Tenant's electrical
consultant cannot mutually agree within thirty (30) days after the submission
of Tenant's electrical consultant's report, the matter shall be referred to
arbitration in accordance with the rules and regulations of the American
Arbitration Association. Until the determination of the consultants or the
arbitrators, Tenant shall pay the Electric Charge determined in accordance
with the Consultant's report and if Tenant shall prevail in the resolution of
such dispute, then Landlord shall promptly refund to Tenant the amount of any
overpayment by Tenant.
4.09 In the event that Base Annual Rent includes an amount for
electric consumption, and such Base Annual Rent is not paid within five (5)
days after said charges are due, Landlord may without further notice,
discontinue the service of electric current to the Demised Premises without
incurring any liability for any damage or loss sustained by Tenant by such
discontinuance of service.
ARTICLE 5 - DELIVERY OF PREMISES
--------------------
5.01 Landlord is delivering and Tenant shall accept the Demised
Premises "AS IS" and Landlord makes no representation as to the repair,
condition or working order of the Demised Premises. Landlord represents that
as of the date of this Lease, it has received no notice that the Demised
Premises is in violation (which has not been cured) of any local law. In the
event Landlord is notified that the Demised Premises is in violation prior to
the Commencement Date, then provided the same shall not be due to any act,
failure to act, omission or negligence of Tenant, its agents, employees or
invitees, Landlord shall diligently cure, or cause to be cured, such
violation.
5.02 All facilities, materials and work which are required by the
provisions of Exhibit "C" annexed hereto and hereby made a part hereof (the
"Improvements Exhibit") to be done by or on behalf of Tenant (i.e., by its
contractors, subcontractors or employees) or are identified as Initial
Improvements therein, or which Tenant requires or desires for its use and
occupancy of the Demised Premises and which have been approved in writing by
Landlord, and the preparation of plans and specifications criteria for same
(collectively, "Initial Improvements"), shall be completed in accordance with
the provisions of the Improvements Exhibit. Use of the term Building Standard
or similar terminology, or references to any Building standard list, in this
Lease or in the exhibits attached hereto, shall mean Landlord's standard
criteria, subject to the terms of this Lease, requirements or specifications
(whether qualitatively based or quantitatively based) used in connection with
maintenance, work or improvements in the Building or elsewhere on the
Property, including, without limitation, particular: materials; finishes;
furnishings; means or methods of engineering or undertaking maintenance, work
or improvements; types of facilities, equipment, etc.; tolerances; and names
of manufacturers. Landlord shall reimburse Tenant for the cost of the Initial
Improvements, in an amount not to exceed the sum of $315,420.00 ("Credit"),
which Credit shall be disbursed to Tenant in accordance with the provisions of
Exhibit "C" annexed hereto and hereby made a part hereof.
ARTICLE 6 - USE
---
6.01 Tenant shall use and occupy the Demised Premises as a showroom
and related office for the sale (wholesale only), manufacturing and display of
ladies better apparel and for no other purpose.
6.02 Tenant will not, at any time, use or occupy or permit the use
or occupancy of the Demised Premises in a way which would violate any of the
terms and conditions of this Lease or for any unlawful purpose or in any
unlawful manner or in violation of the Certificate of Occupancy for the
Building or in any manner which in the judgment of Landlord may in any way
impair the reputation or appearance of the Building or impair or interfere
with the maintenance and operation of the Building and its systems, and the
enjoyment thereof by other tenants and occupants.
ARTICLE 7 - TENANT CONSTRUCTION; MECHANICS LIENS
------------------------------------
7.01 Tenant may not perform construction, alterations or other
similar work at the Demised Premises unless such work is done in compliance
with all of the conditions set forth in this Article 7. Prior to commencing
such work, Tenant shall submit for Landlord's approval, preliminary design
drawings prepared by a licensed architect. Landlord agrees to review such
submission within seven (7) Business Days after receipt. Within thirty (30)
days after approval by Landlord (if approved) of such preliminary
architectural design drawings, Tenant shall submit to Landlord complete
detailed drawings and specifications prepared by a licensed architect in
conformity with all applicable laws, rules and regulations including those of
the City of New York and its departments, agencies and other authorities
having jurisdiction. In addition, Tenant agrees that:
(a) All such work shall be done at Tenant's sole cost and
expense, utilizing only first class materials in a workmanlike manner by
contractors and subcontractors reasonably acceptable to Landlord.
(b) No such work shall damage or impair access to, or the
usefulness of, the remainder of the Building. Tenant shall keep the Building
and the adjoining sidewalks free from any accumulations of rubbish or debris
and prevent any dirt, dust or other annoyance as a result of the work.
(c) Without limiting the foregoing, any work that will, in the
sole judgment of Landlord, affect any of the Building's structure, or the
mechanical, plumbing, electrical, HVAC or other systems in the Demised
Premises or in the Building shall not be commenced without the express prior
written consent of Landlord which consent may be withheld for any reason and,
if such consent is given, all work shall be done by contractors or engineers
from Landlord's list of designated contractors.
(d) Tenant will cause all work to be promptly commenced and
diligently completed in full compliance with all applicable laws, building
codes, zoning resolutions, regulations and requirements of all government
agencies having jurisdiction thereof, and shall, prior to commencing any such
work, apply for, obtain and furnish to Landlord, at Tenant's sole cost and
expense, all permits, approvals and certificates required by any such
government agency or agencies and upon completion, obtain all necessary
certificates of approval.
(e) Tenant will furnish Landlord with copies of all
applications, plans and specifications, permits, certificates, approvals and
other documents filed (including amendments) in connection with the work with
the Building Department of the City of New York or with any other government
agencies within three (3) days after any such applications, plans and
specifications or other documents are filed.
(f) Within twenty (20) days after the completion of the work,
Tenant shall furnish Landlord with "as built" sepia drawings of the work.
(g) Landlord, its architect and their agents and employees
shall have the right to enter upon the Demised Premises at any time during the
course of Tenant's work to inspect and determine whether the work conforms to
the approved plans and specifications and the terms of this Lease.
(h) Tenant shall, during the work, provide insurance as set
forth below prior to the first entry by Tenant's contractors into the Demised
Premises (and certificates evidencing same shall be furnished to Landlord
prior to such entry):
1. Comprehensive liability insurance with a $5,000,000
combined single limit covering the liability of Landlord and the Construction
Manager (and their employees, agents, contractors and invitees) for bodily
injury and property damage arising as a result of Tenant's entry which shall
be deemed to include entry by Tenant or its employees, agents, contractors or
invitees. Landlord's and Landlord's Construction Manager are to be included as
additional named insureds. The perils shall include:
a. Blanket Contractual Liability;
b. Completed Operations;
▇. ▇▇▇▇▇ Form Property Damage;
d. Personal Injury with employees exclusion voided;
and
e. Employees, agents and contractors of Tenant to be
named as additional insureds.
2. Worker's compensation and employer's liability, as
required by law, for employees, agents and contractors of Tenant performing
work or rendering services at the Demised Premises.
3. Disability benefits, and other similar employee
benefits, as required by law, covering the employees, agents and contractors
of Tenant performing work or rendering services at the Demised Premises.
4. Errors and Omissions insurance, reasonably satisfactory
to Landlord, insuring Tenant's architects, engineers and consultants with
Landlord and Landlord's Construction Manager and Tenant as additional named
insureds.
5. Such other insurance as is then required by owners or
mortgagees of first class or comparable properties in Manhattan.
(i) All demolition, including "floor chopping", shall be
performed before and after Business Hours and Tenant shall conduct such work
in a manner so as to minimize interference with or inconvenience to other
portions and other tenants of the Building.
(j) Tenant shall pay to Landlord the cost of all required
overtime elevator service or other hoisting facilities used in connection with
Tenant's performance of the work, at rates which Landlord shall establish from
time to time.
(k) Tenant shall, prior to the commencement of any work at the
Demised Premises, provide Landlord with cash or other security satisfactory to
Landlord to cover that portion of the total cost of the work as estimated by
Landlord which exceeds the sum of (i) the Credit, plus (2) the amount of the
security deposit then being held by Landlord pursuant to this Lease.
(l) If Tenant, at any time during the Term of this Lease,
including the Initial Construction, elects to add an electric strike or
electric strikes to the entrance or any other door in the Demised Premises,
said electric strike(s), the installation thereof and the operation thereof
must comply with the provisions of the Work Letter, the Building's Rules, as
the same may be amended from time to time and the rules and regulations as
promulgated from time to time by the New York City Fire Department. In
addition, any electric strikes installed in the Demised Premises must be
incorporated into the Building's Smoke Detector and Class E systems so that
the electric strike(s): (i) automatically unlock upon receiving a signal from
the smoke detectors that smoke is present in the Demised Premises or elsewhere
in the Building; and (ii) continually inform the Class E system's master
control panel in the Lobby, as to the position of the electric strike(s)
(i.e., open or closed). Compliance with the foregoing provision shall be at
Tenant's sole cost and expense.
7.02 Tenant covenants and agrees that in the performance of any
work, installations, additions or alterations made by Tenant in or to the
Demised Premises, it will not take or permit any act, which will violate any
of Landlord's union contracts affecting the Building, nor create any work
stoppage, picketing, labor disruption or dispute which may interfere with the
operation of the Building of which the Demised Premises are a part. Without
limiting any other rights and remedies of Landlord hereunder or otherwise
provided by law with respect to any default by Tenant under this Lease, any
default by Tenant under this Article 7 shall be deemed a material default by
Tenant under this Lease, and in addition to any and all other remedies
available to Landlord, Landlord shall have the right, at its option, to
terminate this Lease on ten (10) days' prior written notice to Tenant,
provided, however, that such notice to terminate shall be of no force and
effect if Tenant shall have commenced the curing of such default within three
(3) days after such notice.
7.03 (a) Tenant shall have no power to do any act or make any
contract which may create or be the foundation for any lien upon the Land and
Building, or the Demised Premises; it being agreed that should Tenant cause
any alterations, changes, additions, improvements or repairs to be made to the
Demised Premises, or material furnished or labor performed therein or thereon,
neither Landlord nor the Demised Premises shall, under any circumstances, be
liable for the payment of any expenses incurred or for the value of any such
work done or material furnished to the Demised Premises or any part thereof;
but all such alterations, changes, additions, improvements and repairs and
materials and labor shall be at Tenant's expense, and Tenant shall be solely
and wholly responsible to contractors, laborers and materialmen furnishing
labor and material to the Demised Premises and Building, or any part thereof,
for or on behalf of Tenant.
(b) Tenant shall not suffer or permit any mechanics' liens to
be filed against the Land and/or Building or against Tenant's leasehold
interest in the Demised Premises, by reason of work, labor, services or
material supplied or claimed to have been supplied to Tenant or to any
occupant of the Demised Premises. If any such mechanic's lien shall at any
time be filed against the Demised Premises or the Land or the Building
improvements thereon, Tenant shall, at its own cost and expense, cause the
same to be cancelled and discharged of record by surety bond or appropriate
cash deposit within thirty (30) days after the date of filing the same and
notice thereof to Tenant, and Tenant shall indemnify and save harmless
Landlord from and against any and all costs, expenses, claims, losses or
damages resulting therefrom or by reason thereof.
(c) Tenant, at Tenant's sole cost and expense, shall also
defend on behalf of Landlord, with counsel satisfactory to Landlord, any
action, suit or proceeding which may be brought thereon or for the enforcement
of such liens or orders, and Tenant shall pay any damages and satisfy and
discharge any judgment entered thereon and save Landlord harmless from any
claim or damage resulting therefrom.
(d) If Tenant shall fail to discharge such mechanic's lien
within such period, then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit in court or bonding, and in any such event, Landlord
shall be entitled, if Landlord so elects, to compel the prosecution of any
action for the foreclosure of such mechanic's lien by the lienor and to pay
the amount of the judgment, if any, in favor of the lienor, with interest,
costs and allowances.
(e) Any amount paid by Landlord for any of the aforesaid
charges and all reasonable legal and other expenses of Landlord, including
reasonable and necessary out-of-pocket counsel fees, in defending any such
action in or about procuring the discharge of said lien, with all necessary
disbursements in connection therewith, with interest thereon at the then
prevailing maximum legal rate of interest from the date of payment, shall be
repaid within a period of ten (10) days after written demand therefor by
Landlord to Tenant, and may be treated as Additional Rent payable with the
next installment of Base Annual Rent.
ARTICLE 8 - REPAIRS AND MAINTENANCE
-----------------------
8.01 Tenant shall take good care of and maintain the Demised
Premises and the fixtures and appurtenances therein.
8.02 Tenant shall be responsible for and shall promptly repair all
damage or injury, whether structural or non-structural to the Demised Premises
or any other part of the Building and the systems, equipment, fixtures and
appurtenances thereof, caused by or resulting from: (a) the carelessness,
omission, neglect or improper conduct of Tenant or its subtenants, agents,
contractors, employees, invitees or licensees; (b) any work, labor, service or
equipment done for or supplied to Tenant or any subtenant; (c) any alteration,
installation, use or operation of Tenant's or its subtenant's property or
equipment; or (d) the moving of Tenant's fixtures, furniture and equipment.
Any repairs to the Building or the facilities or systems thereof shall be
performed by Landlord, at Tenant's sole cost and expense, or at Landlord's
option, by Tenant with contractors approved by Landlord.
8.03 Landlord shall maintain the structural and public portions of
the Building. Tenant shall give Landlord prompt notice of any defective
condition in the Demised Premises and the Building, for which Landlord may be
responsible hereunder.
8.04 Except as otherwise specifically provided in this Lease,
Landlord shall have no liability and there shall be no allowance to Tenant,
and Tenant's obligations under this Lease shall not be reduced or abated, for
diminution of rental value or by reason of any inconvenience, annoyance or
injury to Tenant's business arising from Landlord or others making repairs,
alterations, additions or improvements in or to any portion of the Building,
the Demised Premises or in or to the fixtures, appurtenances or equipment
thereof.
ARTICLE 9 - REQUIREMENTS OF LAW
-------------------
9.01 Tenant, at Tenant's sole cost and expense, shall promptly
comply with all present and future laws, orders and regulations of all state,
federal, municipal and local authorities having jurisdiction thereof and with
any rules, regulations, orders and directives of all departments,
subdivisions, bureaus, agencies or offices thereof, and of any other
governmental, public or quasi-public authorities, and the directions of any
public officer pursuant to law or any similar body or official (collectively,
"Legal Requirements") which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the Demised Premises, arising out of
Tenant's actual or permitted use or manner of use thereof or, with respect to
the Building, if arising out of Tenant's actual or permitted use or manner of
use of the Demised Premises or the Building.
9.02 Notwithstanding the provisions of Section 9.01, Tenant, at
Tenant's sole cost and expenses, may contest and appeal any such laws,
ordinances, orders, rules, regulations or requirements, with which Tenant is
required to comply pursuant to this Lease, provided:
(a) Landlord shall not be contesting, or intending to contest,
the same;
(b) Tenant secures Landlord, to Landlord's satisfaction,
against all damages, interest, penalties and expenses, including but not
limited to attorneys' fees, by cash deposit or surety bond in an amount and
with a company satisfactory to Landlord;
(c) Such contest or appeal is prosecuted with all reasonable
promptness and diligence;
(d) Such contest or appeal and any resulting delay in
compliance does not violate any ground or underlying lease or any mortgage
affecting any such leases, the Building or under which Landlord is otherwise
obligated, or cause the Demised Premises or the Building to be condemned or
vacated nor shall the certificate(s) of occupancy for the Demised Premises or
the Building be suspended or threatened to be suspended by reason of
non-compliance or otherwise by reason of such contest; and
(e) Such contest or appeal and any resulting delay in
compliance shall not subject Landlord to criminal prosecution. Landlord shall
be deemed subject to prosecution for a crime if Landlord, Superior Lessor,
Superior Mortgagee or any of their officers, directors, partners,
shareholders, agents or employees may be charged with a crime of any kind
whatever.
Pending the resolution of such contest, Tenant shall be required to comply
with all such Legal Requirements.
9.03 If at any time during the term of this Lease, the laws or
requirements of the City or State of New York or of the United States or any
agency having jurisdiction impose any obligations or requirements upon
Landlord to perform any alterations, installations, changes or improvements
(collectively "changes") to the Building and/or the Demised Premises, then
Tenant shall pay to Landlord as additional rent Tenant's Proportionate Share
of all costs and expenses incurred by Landlord in performing any changes;
provided, however, that Tenant shall not be required to pay any costs and
expenses of changes to the extent Landlord was obligated to perform such
changes prior to the date hereof. Any amount due hereunder shall be payable to
Landlord within ten (10) days after rendition of a ▇▇▇▇ therefor accompanied
by a statement setting forth the changes performed by Landlord.
ARTICLE 10 - INSURANCE REQUIREMENTS
----------------------
10.01 Tenant shall not do or permit any act or thing to be done in or
to the Demised Premises which is contrary to law, or which will invalidate or
be in conflict with public liability, fire or other policies of insurance at
any time carried by or for the benefit of Landlord with respect to the Demised
Premises or the Building and any fixtures, personal property or appurtenances
therein or which might subject Landlord to any liability or responsibility to
any person or for property damage.
10.02 Tenant shall not keep anything in the Demised Premises which at
any time during the Term of this Lease is not permitted by any Insurance
Requirements. As used in this Lease, the term "Insurance Requirements" shall
mean rules, regulations, orders and requirements of the New York Board of Fire
Underwriters, the New York Fire Insurance Rating Organization and any other
similar body performing the same or similar functions, whether now or
hereafter in force, or the requirements of any insurance policy maintained by
Landlord at any time or of the issuer of such policy provided that such
requirements (i) are generally imposed by such issuer in connection with
policies covering Manhattan office buildings in the locality in which the
Building is located or (ii) if not complied with, may result in an increase in
the premiums payable under, or the cancellation of, any of Landlord's
insurance policies pertaining to the Building or the operation thereof. If, as
a result of any act or omission or violation of any terms of this Lease, by
Tenant or any subtenant, agent, contractor, employee, guest or invitee of
Tenant, the rate of any insurance applicable to the Building or any property
located therein, is increased over that in effect prior to the commencement of
Tenant's occupancy, then in addition to any other remedies Landlord has under
this Lease, Tenant shall reimburse Landlord, as Additional Rent hereunder, for
any such increases. In any action or proceeding wherein Landlord and Tenant
are parties, a schedule or "make-up" of rates for the Building or Demised
Premises issued by the entity making insurance rates applicable to said
premises shall be conclusive evidence of the facts therein stated and of the
several items and charges in the insurance rates then applicable to said
premises.
10.03 Tenant shall at its own cost and expense keep all fixtures,
additions and improvements in the Demised Premises insured during the term of
this Lease against all physical loss or damage with all risk insurance with
full replacement cost coverage (without any deduction being made for
depreciation) with such extended coverage as shall from time to time be
customary for premises similarly situated in the Borough of Manhattan, City of
New York. Such insurance shall include, without limitation, physical loss or
damage from sprinklers and water. Such replacement cost shall be determined
from time to time, at the request of Landlord, by an appraiser, architect or
contractor reasonably selected by Landlord. No omission on the part of
Landlord to request any such determination shall relieve Tenant of its
obligation hereunder.
10.04 Tenant, at its sole cost and expense, shall maintain for the
mutual benefit of Landlord and Tenant:
(a) Full general and public liability insurance (ISO form or
equivalent) with broad form comprehensive general liability endorsement
against claims for bodily injury, death or property damage, occurring upon, or
in or about the Demised Premises, (including without limitation personal
injury, death or property damage resulting directly or indirectly from any
change, alteration, improvement or repair thereof). Such insurance coverage
shall be single limit coverage for damage to property and death or injury to
one or more persons in the minimum amount of $3,000,000 per occurrence.
(b) Sprinkler and water damage liability insurance in the
amount of $250,000.
(c) Plate glass insurance on all glass, including, without
limitation, entrance doors, glass partitions and windows, in the Demised
Premises.
(d) Such other insurance in such amounts as may from time to
time be reasonably required by Landlord against other insurable hazards which
at the time are customarily insured against in the case of premises similarly
situated in the Borough of Manhattan, City of New York, due regard being or to
be given to the height and type of the Building, its construction, use and
occupancy.
10.05 (a) All insurance provided for in this Section shall be
effective under valid and enforceable policies issued by insurers reasonably
satisfactory to Landlord. Upon the execution of this Lease and thereafter, not
less than fifteen (15) days' prior to the expiration dates of the expiring
policies theretofore furnished pursuant to this Section, originals of the
policy, or certificates with proof of payment of premiums shall be delivered
by Tenant to Landlord.
(b) Nothing contained herein shall prevent Tenant from taking
out insurance of the kind and in the amounts provided for under this Section
under a blanket insurance policy or policies covering other properties as well
as the Demised Premises, provided however that any such policy or policies of
blanket insurance (i) shall specify therein, or Tenant shall furnish Landlord
with a written statement from the insurers under such policy or policies
specifying, the amount of the total insurance allocated to the Demised
Premises, which amounts shall not be less than the amounts required above and
(ii) such amounts so specified shall be sufficient to prevent any one of the
insureds from becoming a co-insurer within the terms of the applicable policy
or policies, and shall otherwise comply as to endorsement and coverage with
the provisions of this Section.
(c) The amounts of insurance Tenant shall be required to
maintain hereunder shall be subject to increase based upon the periodic
reasonable review by Landlord or Superior Mortgagee.
10.06 Landlord, the managing agent of the Building and any Superior
Lessor and Superior Mortgagee each shall be an additional named insured and
Tenant shall be a named insured on all policies of insurance provided for
herein. Each such policy issued by an insurer shall contain an agreement by
the insurer that such policy shall not be cancelled except on at least thirty
(30) days' prior notice to Landlord and all additional insureds. As to any
loss sustained by Tenant for which Tenant is required to obtain insurance
pursuant to this Lease, Tenant waives any and all claims and rights for
damages against Landlord, to the extent of the insurance coverage required to
be obtained hereunder.
10.07 Each party shall have included in each of its casualty
insurance policies (insuring the Building and Landlord's property therein in
the case of Landlord, and insuring Tenant's property in the case of Tenant) a
waiver of the insurer's right of subrogation against the other party or, if
such waiver is unobtainable or unenforceable, (a) an express agreement that
such policy shall not be invalidated if the insured waives the right of
recovery against any party responsible for a casualty covered by the policy
before the casualty, or (b) any other form of permission for the release of
the other party. If such waiver, agreement or permission is not, or ceases to
be, obtainable from either party's then current insurance company, the insured
party shall so notify the other party promptly after learning thereof, and
shall use its best efforts to obtain same from another insurance company. If
such waiver, agreement or permission is obtainable by Landlord only by payment
of an additional charge, Landlord shall so notify Tenant promptly after
learning thereof, and Landlord shall not be required to obtain said waiver,
agreement or permission unless Tenant pays the additional charge therefor.
Each party hereby releases the other in respect of any claim (including a
claim for negligence) which it might otherwise have against the other for
loss, damage or destruction of or to its property to the extent to which it is
insured under a policy containing a waiver of subrogation or express agreement
that such policy shall not be invalidated or permission to release liability,
as provided above in this Section 10.07. If, notwithstanding the recovery of
insurance proceeds by either party for loss, damage or destruction of or to
its property, the other party is liable to the first party in respect thereof
or is obligated under this Lease to make replacement, repair, restoration or
payment, then, provided the first party's right of full recovery under its
insurance policy is not thereby prejudiced or otherwise adversely affected,
the amount of the net proceeds of the first party's insurance against such
loss, damage or destruction shall be offset against the second party's
liability to the first party therefor, or shall be made available to the
second party to pay for replacement, repair or restoration, as the case may
be. Nothing contained in this Section 10.07 shall be deemed to (i) relieve
either party of any duty imposed elsewhere in this Lease to repair, restore or
rebuild or (ii) nullify any abatement or reduction of rents provided for
elsewhere in this Lease.
ARTICLE 11 - DAMAGE OR DESTRUCTION BY FIRE OR OTHER CASUALTY
-----------------------------------------------
11.01 Tenant shall give immediate notice to Landlord of any damage by
fire or other casualty to the Demised Premises or the Building.
11.02 If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other insured casualty, then whether
or not the damage or destruction shall have resulted from the fault or neglect
of Tenant, or its employees, agents, or visitors (and this Lease is not
terminated pursuant to this Article 11 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises, at its expense (without limiting the rights of Landlord under any
other provision of this Lease), with reasonable diligence after notice to it
of the damage or destruction and the collection of the insurance proceeds
attributable to such damage or destruction; provided, however, that Landlord
shall not be required to repair or replace any of Tenant's property.
11.03 (a) If the Demised Premises shall be partially damaged or
rendered partially unusable by fire or other insured casualty, then the Rent
payable hereunder shall be abated to the extent that the Demised Premises
shall have been rendered unusable for the period from the date of such damage
or destruction to the date the damage shall be substantially repaired or
restored or the date on which Tenant recommences the use thereof for the
conduct of its business.
(b) If the Demised Premises shall be totally damaged or
destroyed or rendered wholly unusable on account of fire or other insured
casualty, the Rent payable hereunder shall be abated as of the date of the
damage or destruction and until Landlord shall substantially repair, restore
and rebuild the Demised Premises, provided, however, that should Tenant
reoccupy a portion of the Demised Premises during the period the restoration
work is taking place and prior to the date that the same are made completely
usable, Rent allocable to such portion shall be payable by Tenant from the
date of such occupancy.
11.04 If the Building or the Demised Premises shall be (i) materially
damaged or destroyed by fire or other casualty (i.e. 25% or more), or (ii) if
the Building shall be so damaged or destroyed by fire or other cause (whether
or not the Demised Premises are damaged or destroyed) as to require a
reasonably estimated expenditure of more than twenty-five percent (25%) of the
full insurable value of the Building immediately prior to the casualty or
(iii) if the holder of any mortgage on the Building or the holder of a
Superior leasehold interest declines to timely allow Landlord to use insurance
proceeds to rebuild, or (iv) if Landlord's insurance carrier shall decline
coverage of the casualty, then in any of such cases Landlord may terminate
this Lease by giving Tenant notice to such effect within one hundred eighty
(180) days after the date of the casualty specifying the date for the
expiration of the Lease, which date shall not be more than 60 days after the
giving of such notice, and upon said specified date this Lease shall expire as
fully and completely as if such date were the date set forth above as the
Expiration Date and Tenant shall forthwith quit, surrender and vacate the
Demised Premises on that date; without prejudice however to Landlord's rights
and remedies against Tenant under the Lease provisions in effect prior to such
termination and Rent shall be prorated and adjusted as of the date of
termination.
11.05 Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises or of the Building pursuant to this Article
11. Nothing contained in this Lease shall relieve Tenant for liability that
may exist as a result of damage from fire or other casualty.
11.06 Notwithstanding any of the foregoing provisions of this Article
11, if Landlord or any Superior Lessor or any Superior Mortgagee shall be
unable to collect all of the insurance proceeds (including rent insurance
proceeds) applicable to damage or destruction of the Demised Premises or the
Building by fire or other cause, by reason of some action or inaction on the
part of Tenant or any of its employees, agents or contractors, then, without
prejudice to any other remedies which may be available against Tenant, there
shall be no abatement of Tenant's Rent.
11.07 Landlord will not carry insurance of any kind on Tenant's
property and, shall not be obligated to, repair any damage thereto or replace
the same. Tenant shall be responsible for maintaining insurance on Tenant's
property.
11.08 The provisions of this Article 11 shall be considered an
express agreement governing any cause of damage or destruction of the Demised
Premises by fire or other casualty, and Section 227 of the Real Property Law
of the State of New York, providing for such a contingency in the absence of
an express agreement, and any other law of like import, now or hereafter in
force, shall have no application in such case and are hereby waived by the
parties hereto.
ARTICLE 12 - SUBORDINATION; ATTORNMENT; QUIET ENJOYMENT
------------------------------------------
12.01 This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to all ground and underlying leases which may now or
hereafter affect the Land and/or the Building (any such lease, a "Superior
Lease" and the lessor thereof being a "Superior Lessor") and to all mortgages
which may now or hereafter affect such leases or the Land and/or the Building,
and to all renewals, modifications, consolidations, replacements and
extensions of any such leases and mortgages. This Section 12.01 shall be
self-operative and no further instrument of subordination shall be required.
Tenant shall within ten (10) days after Landlord's request, execute,
acknowledge and deliver, at Tenant's expense, any instrument, in recordable
form if required, that Landlord, the lessor under any such ground or
underlying lease or the holder of any such mortgage or any of their respective
successors in interest, may request to confirm and evidence such
subordination. Tenant hereby irrevocably constitutes and appoints Landlord or
its successors in interest, as Tenant's attorney-in-fact, coupled with an
interest, to execute, acknowledge and deliver such instrument for and on
behalf of Tenant. Any mortgage to which this Lease is subject and subordinate
is herein called a "Superior Mortgage" and the holder of a Superior Mortgage
is herein called a "Superior Mortgagee." Any such Superior Lessor or Superior
Mortgagee may also be referred to herein as a "Senior Interest Holder" and any
such Superior Lease or Superior Mortgage may also be referred to herein as a
"Senior Interest."
12.02 If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right until (a) Tenant gives written notice of such act or omission to
Landlord and to each Senior Interest Holder whose name and address were
previously furnished to Tenant, and (b) a reasonable period of time for
remedying such act or omission elapses following the time when such Senior
Interest Holder becomes entitled under such Superior Mortgage or Superior
Lease to remedy same [which reasonable period shall be the period of time
(after such Senior Interest Holder becomes entitled to remedy such act or
omission of Landlord) equal to the full period of time to which Landlord is
entitled under this Lease or otherwise to effect such remedy after notice, as
if such notice to the Senior Interest Holder were the first notice to Landlord
of such act or omission]; provided, however, if such act or omission is of
such a nature that it cannot be completely remedied within such reasonable
period, such reasonable period shall be such longer period as may be required
provided such Senior Interest Holder shall have within such reasonable period
given Tenant notice of its intention to remedy such act or omission, and has
commenced and thereafter diligently continues to act upon such intention. It
is agreed, however, that if such Senior Interest Holder deems possession of
the Demised Premises necessary in order to effect a remedy, then such Senior
Interest Holder shall have such further period of time as is necessary to
obtain possession in addition to the reasonable period referred to in the
preceding sentence, provided such Senior Interest Holder shall give Tenant
notice of its intention to obtain possession and remedy such act or omission
and shall promptly commence and continue to diligently pursue, through
appointment of a receiver or foreclosure, summary proceedings or other
procedures or steps necessary to obtain possession. For the purposes of this
Section, if there shall be more than one Senior Interest Holder, the
provisions of this Section shall be applicable only to the holder of the
Superior Mortgage which constitutes the first mortgage lien on the Building.
12.03 (a) Tenant covenants and agrees that if, by reason of any
default upon the part of the Landlord herein as lessee under any Superior
Lease, and the Superior Lease is terminated by summary proceedings, voluntary
agreement or as otherwise permitted or required by law, Tenant will attorn to
and recognize the Superior Lessor under such Superior Lease as Tenant's
landlord under this Lease. Tenant further agrees to execute and deliver at any
time, upon request of the Superior Lessor under the Superior Lease or of any
person which shall succeed to the interest of such Superior Lessor, an
instrument to evidence such attornment. Tenant waives the provisions of any
law now or hereafter in effect or any other provision of this Lease which may
give Tenant any right of election to terminate this Lease or to surrender
possession of the Demised Premises in connection with any termination of any
Superior Lease. In the event any proceedings are brought for the foreclosure
of, or in the event of the conveyance by deed in lieu of foreclosure of, or in
the event of exercise of the power of sale under, any Superior Mortgage or in
the event Landlord sells, conveys or otherwise transfers its interest in the
Land and/or the Building or any portion of either thereof, then subject to the
rights of the Superior Mortgagee, this Lease shall remain in full force and
effect and Tenant hereby attorns to, and covenants and agrees to execute an
instrument in writing reasonably satisfactory to the new owner whereby Tenant
attorns to such successor in interest and recognizes such successor as the
Landlord under this Lease. This Section shall be self-operative and no further
instrument of attornment shall be required. Tenant hereby irrevocably
constitutes and appoints Landlord or its successors in interest as Tenant's
attorney-in-fact, coupled with an interest, to execute, acknowledge and
deliver any instrument of attornment, if Tenant refuses or fails to promptly
deliver any such instrument upon request.
(b) Notwithstanding anything to the contrary contained herein,
under no circumstances shall the aforementioned Superior Lessor or Superior
Mortgagee or purchaser or any of their successors-in-interest, as the case may
be, whether or not it shall have succeeded to the interests of Landlord under
this Lease, be:
(i) liable for any act, omission or default of any prior
landlord; or
(ii) subject to any offsets, claims or defenses which
Tenant might have against any prior landlord;
(iii) bound by any Rent which Tenant might have paid to
any prior landlord for more than one month in advance or for more than three
months in advance where such payments are payable at intervals of more than
one month; or
(iv) required to account for any security deposit of
Tenant other than any actually delivered to such Superior Lessor, Superior
Mortgagee or purchaser, as the case may be, by any prior landlord; or
(v) bound by any modification, amendment, extension or
abridgement of this Lease or any cancellation or surrender thereof, made
without its prior written consent; or
(vi) in the event of damage to the Building by fire or
other casualty, obligated to repair the Demised Premises or the Building or
any part thereof beyond such repair as may reasonably be accomplished from the
net proceeds of insurance actually made available to such Superior Lessor,
Superior Mortgagee or purchaser, as the case may be; or
(vii) in the event of partial condemnation, obligated to
repair the Demised Premises or the Building or any part thereof beyond such
repair as may reasonably be accomplished from the net proceeds of any award
actually made available to such Superior Lessor, Superior Mortgagee or
purchaser, as the case may be, as consequential damages allocable to the part
of the Demised Premises or the Building not taken; or
(viii) bound by any other covenant to perform or complete
any construction in connection with said property or the Building or to pay
any sums to Tenant in connection therewith.
(c) If in connection with the financing of the Building, any
prospective or actual Senior Interest Holder shall request reasonable
modifications in this Lease as a condition of approval, Tenant shall not
unreasonably withhold, delay or defer making such modifications.
12.04 Landlord covenants and agrees that, so long as Tenant pays all
Rent and observes and performs all the terms, covenants and conditions on
Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the Demised Premises, subject to the terms and provisions of this Lease
and any Superior Lease and Superior Mortgage.
ARTICLE 13 - TENANT'S CERTIFICATES
---------------------
13.01 Tenant shall without charge, at any time and from time to time,
within ten (10) days after request by Landlord, certify by written instrument
(which shall be supplied by Landlord), duly executed, acknowledged and
delivered to Landlord, or any other person, firm or corporation specified by
Landlord:
(a) that this Lease is unmodified and in full force and effect,
or, if there have been any modifications, that the same is in full force and
effect as modified and stating the modifications; (b) that there are no
existing setoffs or defenses against the enforcement of any of the agreements,
terms, covenants or conditions hereof and any modifications hereof upon the
part of Tenant to be performed or complied with, and if so, specifying same;
(c) the dates, if any, to which the Base Annual Rent and Additional Rent and
other charges hereunder have been paid in advance; (d) the Commencement date
and the Expiration Date; (e) the Base Annual Rent payable under this Lease;
(f) whether Landlord has completed all work required to be done by Landlord
under this Lease, and, if not, specifying the items of work that have not been
so completed; (g) whether there are uncured defaults on the part of Landlord;
and (h) any other matters relating to the status of this Lease or the Demised
Premises as shall be requested by Landlord or any Superior Lessor or Superior
Mortgagee from time to time.
ARTICLE 14 - ASSIGNMENT AND SUBLETTING
-------------------------
14.01 Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (1) assign or otherwise transfer this Lease or
the term and estate hereby granted, or offer or advertise to do so, or (2)
sublet the Demised Premises or any part thereof, or offer or advertise to do
so, or (3) mortgage, pledge, encumber or otherwise hypothecate this Lease or
the Demised Premises or any part thereof in any manner whatsoever, except as
set forth below:
(a) In the event that Tenant wishes to assign its interest in
this Lease to a proposed tenant, Tenant shall submit a written request to
Landlord accompanied by such information concerning the proposed assignee, and
the terms of the assignment as Landlord may reasonably request. Each request
made by Tenant, except a request by Tenant to assign this Lease in connection
with the bona fide sale of Tenant's business to a purchaser who will continue
to operate such business at the Demised Premises in accordance with the terms
of this Lease, shall be deemed an offer by Tenant which shall be irrevocable
for a period of ninety (90) days to surrender all of the Demised Premises
covered by this Lease to Landlord. If such offer is accepted such surrender
shall be effective thirty (30) days after the acceptance of the offer. Tenant
shall then quit and surrender the Demised Premises as if this Lease by its
terms expires on such date. If Tenant's offer to surrender the Lease is not
accepted by Landlord within ninety (90) days, it shall be deemed rejected by
Landlord. If Landlord does not accept Tenant's offer to surrender this Lease,
Landlord may either consent to or reject Tenant's request to assign this
Lease. The Profit from any assignment shall be paid to Landlord upon execution
of the assignment.
(b) In the event that Tenant wishes to sublet all or any part
of the Demised Premises, Tenant shall submit a written request containing such
information as Landlord shall reasonably request. Each request made by Tenant
shall be deemed an offer by Tenant which shall be irrevocable for a period of
ninety (90) days to surrender that portion of the Demised Premises proposed to
be sublet on the terms and conditions set forth in such proposal (except as
modified below). If Landlord accepts the offer to surrender such portion of
the Demised Premises or to sublease such portion of the Demised Premises, such
surrender or sublease shall be effective thirty (30) days after the acceptance
of the offer and Tenant shall vacate the Demised Premises on such date. If
Tenant's offer to surrender or sublease to Landlord is not accepted within
ninety (90) days, it shall be deemed rejected by Landlord. If Landlord does
not accept the cancellation of the Lease, Landlord may either consent to or
reject Tenant's request to sublet. The Profit from any subletting shall be
paid to Landlord upon the execution of the sublease agreement. If Landlord
consents to Tenant's request to sublet, such consent shall be expressly
conditioned upon Tenant submitting to Landlord a sublease agreement executed
by Tenant and the subtenant, which agreement must contain a provision by
which: (a) such sublease is subject and subordinate to this Lease and to
matters to which this Lease is or shall be subordinate; and (b) subtenant, in
the event of notification by Landlord of a default by Tenant under this Lease,
shall pay all rent as and when due under the sublease agreement directly to
Landlord (should Landlord so request) and not to Tenant. Tenant acknowledges
that if the default referred to in (b) above is a monetary default, then
Landlord shall apply the payments, made by subtenant to Landlord, against
monies owed Landlord by Tenant and if the default is non-monetary, Landlord
may treat said payments as additional security and deposit same in accordance
with Article 22 herein. The making of any such payment by subtenant and the
acceptance of any such payment by Landlord shall not (i) relieve Tenant of any
obligations or liabilities under this Lease or (ii) act as a waiver by
Landlord of any rights which result from a default by Tenant under this Lease
or (iii) be deemed Landlord's acceptance of the subtenant in lieu of Tenant or
Landlord's agreement to allow subtenant to attorn to Landlord for the balance
of the sublet term.
(c) Notwithstanding paragraphs (a) and (b) of this Section
14.01, if Landlord does not require Tenant to surrender the Demised Premises
or if Tenant proposed to assign this Lease in connection with the bona fide
sale of Tenant's business to a purchaser who will continue to operate such
business at the Demised Premises in accordance with the terms of this Lease
and such sublet or assignment complies with the other terms of this Lease
including without limitation, Sections 14.02, 14.03 and 14.04, Landlord shall
not unreasonably withhold its consent provided that:
(i) Tenant pays to Landlord the Profit set forth in
paragraphs (a) and (b) above and, in the case of an assignment, also pays to
Landlord an assignment fee, no later than the effective date of such
assignment, which assignment fee shall equal six (6) months Base Annual Rent
at the annual rate then in effect.
(ii) In the case of a sublet, Tenant does not partition
the Demised Premises, and Tenant continues to comply with the terms and
provisions of this Lease.
(iii) Tenant shall furnish Landlord with the name and
business address of the proposed subtenant or assignee, information with
respect to the nature and character of the proposed subtenant's or assignee's
business, or activities, such references and current financial information
with respect to net worth, credit and financial responsibility as are
reasonably required to confirm to Landlord the ability of the assignee, or
subtenant, as applicable, to perform its obligations under this Lease or the
sublease, as the case may be.
(iv) The proposed subtenant or assignee is a reputable
party whose financial net worth, credit and financial responsibility is
reasonably satisfactory to Landlord considering the responsibilities involved
in performing the obligations under this Lease or the sublease, as the case
may be.
(v) The nature and character of the proposed subtenant or
assignee, its business or activities and intended use of the Demised Premises
are, in Landlord's reasonable judgment, in keeping with the standards of the
Building.
(vi) The proposed subtenant or assignee is not then an
occupant of any part of the Building or a party who dealt with Landlord or
Landlord's agent (directly or through a broker) with respect to space in the
Building during the 12 months immediately preceding Tenant's request for
Landlord's consent.
(vii) All reasonable costs incurred with respect to
providing reasonably appropriate means of ingress and egress from the sublet
space or to separate the sublet space from the remainder of the Demised
Premises shall, subject to the provisions of this Lease with respect to
alterations, installations, additions or improvements, be borne by Tenant (but
provided that nothing contained herein shall be deemed to require Landlord to
consent to any such alterations, additions, etc.)
(viii) In the case of a subletting of a portion of the
Demised Premises, there shall be no more than 2 tenants of the Demised
Premises (including Tenant).
(ix) The security deposit of Tenant shall upon the
assignment or sublet be satisfactory to Landlord.
(x) Tenant shall not be in default under any terms,
covenants or conditions of this Lease.
14.02 In no event shall Tenant sublet or advertise or offer for
sublease all or any portion of the Demised Premises at rental rates lower than
the rate then being charged or offered by Landlord for comparable space in the
Building.
14.03 If Tenant is a corporation, the provisions of Section 14.01
shall apply to a transfer (by one or more transfers) of a majority of the
stock of Tenant as if such transfer of a majority of the stock of Tenant were
an assignment of this Lease; but said provisions shall not apply to
transactions with a corporation into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are transferred
which prior to such merger, consolidation or transfer controls or is
controlled by Tenant or is under common control with Tenant, or to
transactions in which only one of the current shareholders of Tenant transfers
its interest, provided that in any of such events, (i) the successor to Tenant
has a net worth computed in accordance with generally accepted accounting
principles at least equal to the greater of (x) the net worth of Tenant
immediately prior to such merger, consolidation or transfer, and (y) the net
worth of Tenant herein named on the date of this Lease, (ii) proof
satisfactory to Landlord of such net worth shall have been delivered to
Landlord at least ten (10) days prior to the effective date of any such
transaction and (iii) the use of the Demised Premises shall remain the same.
14.04 (a) If this Lease be assigned, whether or not in violation of
the provisions of this Lease, Landlord may collect rent from the assignee. If
the Demised Premises or any part thereof are sublet or used or occupied by
anybody other than Tenant, whether or not in violation of this Lease, Landlord
may, after default by Tenant and expiration of Tenant's time to cure such
default, collect rent from the subtenant or occupant. In either event,
Landlord may apply the net amount collected to the Base Annual Rent and
Additional Rent herein reserved, but no such assignment, subletting, occupancy
or collection shall be deemed a waiver of any of the provisions of Section
14.01 or the acceptance of the assignee, subtenant or occupancy as Tenant, or
a release of Tenant from the performance by Tenant of Tenant's obligations
under this Lease. The consent by Landlord to any assignment, mortgaging,
subletting or use or occupancy by others shall not in any way be considered to
relieve Tenant from obtaining the prior written consent of Landlord to any
other or further assignment, mortgaging or subletting or use or occupancy by
others not expressly permitted by this Section. References in this Lease to
use or occupancy by others (that is, anyone other than Tenant) shall not be
construed as limited to subtenants and those claiming under or through
subtenants but as including also licensees and others claiming under or
through Tenant, immediately or remotely.
(b) Any assignment or transfer, whether made with Landlord's
consent pursuant to Section 14.01 or without Landlord's consent, shall be made
only if, and shall not be effective until, the assignee shall have executed,
acknowledged and delivered to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee shall assume the obligations of
this Lease on the part of Tenant to be performed or observed and whereby the
assignee shall agree that the provisions in subsection (a) shall,
notwithstanding such assignment or transfer, continue to be binding upon it in
respect of all future assignments and transfers. The original named Tenant
covenants that, notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance
of Base Annual Rent and/or Additional Rent by Landlord from an assignee,
transferee, or any other party, the original named Tenant shall remain fully
liable for the payment of the Base Annual Rent and Additional Rent and for the
obligations of this Lease on the part of Tenant to be performed or observed.
(c) The joint and several liability of Tenant and any immediate
or remote successor in interest of Tenant and the due performance of the
obligations of this Lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying the
obligations of, this Lease, or any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
(d) The listing of any name other than that of Tenant, whether
on the doors of the Demised Premises or the Building directory, or otherwise,
shall not operate to vest any right or interest in this Lease or in the
Demised Premises, nor shall it be deemed to be the consent of Landlord to any
assignment or transfer of this Lease or to any sublease of the Demised
Premises or to the use or occupancy thereof by others.
14.05 Tenant agrees to pay to Landlord reasonable attorneys' fees and
disbursements and other costs and expenses incurred by Landlord in connection
with Landlord's review of any proposed assignment or sublet, including,
without limitation, the costs of making investigations as to the acceptability
of a proposed subtenant or assignee.
14.06 In the event Landlord exercises its option to sublease all or a
portion of the Demised Premises from Tenant, then the terms of such sublease
shall be the same as the proposed sublease to a third party except that
Landlord (in its capacity as subtenant) shall not be required to pay any
premium therefor or perform any work thereunder as subtenant (for the purpose
of readying the premises for use), and except further, that the sublease shall
provide for the unqualified right on the part of the subtenant to further
sublease to others and to alter the sublet premises in any manner Landlord or
its designee shall desire. The sublease to Landlord or its designee shall
specifically provide that the parties to such sublease expressly negate any
intention that any estate created under such sublease be merged with any other
estate held by either of said parties. Concurrently with the delivery of the
sublease to Landlord, Landlord, for itself and for any successor in interest
as Landlord, will execute and deliver an instrument indemnifying and holding
Tenant harmless from any loss of rent or from damages which Tenant might
sustain by reason of the default of the sublessee under the sublease. In
addition, Landlord may, without liability to Tenant, assign Landlord's
sublease of the sublet portion or lease or further sublease all or any portion
of the sublet portion to any person or entity, including, without limitation,
any prospective subtenant of Tenant.
ARTICLE 15 - CLEANING; SANITARY MAINTENANCE
------------------------------
15.01 Landlord, at Tenant's cost and expense, shall provide such
cleaning services for the Demised Premises as set forth in Exhibit B hereto
through the cleaning contractor designated by Landlord. Landlord shall ▇▇▇▇
Tenant monthly for any such services, the annual cost of which services are,
as of the date of this Lease, $2.00/sq. ft. of the Demised Premises. If the
Demised Premises are not a full floor of the Building, Landlord shall also
▇▇▇▇ Tenant annually for Tenant's pro rata share of cleaning services for the
floor's common corridor and lavatories. Landlord's cleaning contractor and its
employees shall have access to the Demised Premises, and the use of Tenant's
light, power and water therein, at all times, except that such access shall
not be made in a manner which would unreasonably interfere with the operation
of Tenant's business.
15.02 Landlord, at Tenant's cost and expense, shall clean the inside
and outside of the windows, and the window ▇▇▇▇▇, of the Demised Premises
three times per calendar year. Tenant shall be billed Tenant's Proportionate
Share (which, as of the date of this Lease, is $460.88 each time the windows
are cleaned) of the cost of window cleaning for the Building.
15.03 Tenant, at Tenant's sole cost and expense, shall arrange for
the removal of Tenant's normal office waste from the Demised Premises using
Landlord's designated contractor therefor and shall pay such contractor
directly for the cost thereof, whose charges shall be at the same rates then
being charged by such contractor to other tenants in the Building. In the
event that Tenant requires heavy rubbish to be removed from the Demised
Premises, Tenant shall notify Landlord thereof and Landlord, at Tenant's cost
and expense, shall coordinate such removal and carting and Tenant shall pay
the designated contractor directly for such services. At any time during the
Term, Landlord may, upon thirty (30) days' written notice to Tenant, commence
arranging for the removal of Tenant's normal office waste from the Demised
Premises and Tenant shall comply with all reasonable rules and regulations of
Landlord with respect thereto, and in such event, Tenant shall pay to Landlord
the cost of such removal and carting.
15.04 Tenant agrees that no supplies or deliveries, nor any of
Tenant's refuse or rubbish, shall be kept, or permitted to be kept, in any
area outside of the Demised Premises.
15.05 Tenant, at its own cost and expense, using Landlord's
designated contractor, shall maintain extermination and pest control services
in the Demised Premises from time to time and at such times as Landlord shall
reasonably request to prevent the occurrence of any vermin of any kind or
description in or about the Demised Premises.
15.06 Tenant agrees that it will not suffer, allow or permit any
offensive or obnoxious vibration, noise, odor or other undesirable substance
or effect to emanate from the Demised Premises, or any machine or other
installation therein, or otherwise suffer, allow or permit a nuisance or
otherwise unreasonably interfere with the safety, comfort or convenience of
Landlord or any of the other occupants of the Building, their customers,
agents, or invitees or any others lawfully in or upon the Building. Upon
notice by Landlord to Tenant that any of the aforesaid is occurring, Tenant
shall forthwith (but in all events within five (5) days) remove or control the
same and if any such condition is not so remedied, then Landlord may, at its
discretion, treat such failure as a breach of a substantial obligation of
Tenant and terminate this Lease on thirty (30) days' prior written notice.
ARTICLE 16 - AIR CONDITIONING; ELEVATORS; SERVICES; SUSPENSION OF SERVICES
-------------------------------------------------------------
16.01 Landlord shall maintain the air conditioning system servicing
the Demised Premises in good order and repair at Tenant's cost and expense.
Landlord shall during the term of this Lease obtain and keep in full force and
effect a full service maintenance contract with Landlord's designated service
company and shall ▇▇▇▇ Tenant for the cost and expense thereof, the cost of
which maintenance contract is, as of the date of this Lease, $1,860.00 per
annum. Such amounts shall be due and payable as Additional Rent within five
(5) days after delivery of such ▇▇▇▇. In the event that the air conditioning
system for the Demised Premises also services adjacent premises in the
Building, Tenant shall pay its proportionate share of the service contract
obtained by landlord (based on the relationship of Tenant's Proportionate
Share for the Demised Premises to the Tenant's Proportionate Share applicable
to the entire premises serviced by said air conditioning system). Tenant shall
not install any window or wall-through air conditioning units in the Demises
Premises. In the event that, during Lease Year One, a component part of the
air conditioning system in or servicing, the Demised Premises requires
replacement, as determined in Landlord's sole discretion, the cost and expense
thereof shall be paid by Landlord. Thereafter during the Term, any such
replacement shall be performed by Landlord at Tenant's expense and Tenant
shall pay the cost thereof as Additional Rent within five (5) days after
Tenant's receipt of Landlord's invoice therefor.
16.02 If Tenant's air conditioning system is connected to the
Building's cooling tower, Landlord shall supply air conditioning/cooling
during Business Hours on Business Days from May 15th through September 30th
and ventilation during said hours except when air conditioning/cooling is
being provided as aforesaid. If Tenant requires air conditioning/cooling at
any time other than during Business Hours, as set forth above, Landlord shall
furnish such service for such times upon not less than 24 hours' advance
notice from Tenant, and Tenant shall pay Landlord's then established charges
therefor within ten (10) days after the date of Landlord's invoice therefor.
As of the date of this Lease, Landlord's current established charge per hour
per floor (or portion thereof) for overtime HVAQ is One Hundred Fifty and
00/100ths Dollars $150.00). If Tenant has an independent air-cooled air
conditioning system, Tenant shall pay for electrical consumption of operation
of such system at times other than Business Hours at Landlord's then
established rates within ten (10) days after the date of Landlord's invoice
therefor. It is further understood that the air conditioning equipment can
only be operated during the air condition season hereby fixed as April 15th to
October 15th in each year of the demised term of this Lease. Landlord reserves
the right to stop or suspend the air condition system to make repairs and
improvements to the system because of accidents or because of emergencies
beyond the control of the Landlord.
16.03 Landlord shall provide heat to the Demised Premises when and as
required by law, during Business Hours. If Tenant requires heat at any time
other than during Business Hours, Landlord shall furnish same for such times
upon not less than 24 hours' advance notice from Tenant, and Tenant shall pay
Landlord's then established charges therefor within ten (10) days after the
date of Landlord's invoice therefor.
16.04 Landlord shall provide passenger elevator service to the
Demised Premises during Business Hours, and Landlord shall have at least one
elevator available subject to call for passenger service at all other times.
If Tenant requires freight elevator service at any time except Business Hours,
or freight elevator service during Business Hours for purposes other than the
operation of Tenant's business in the ordinary course, Landlord shall furnish
such service upon not less than 48 hours' advance notice from Tenant, subject
to Landlord's approval which shall not be unreasonably withheld, and Tenant
shall pay to Landlord Landlord's then established charges therefor within ten
(10) days after the date of Landlord's invoice therefor. Such additional
freight elevator service shall be available on a first-come, first-served
basis, in accordance with reservations made pursuant to the preceding
sentence.
16.05 Landlord shall furnish hot and cold water for drinking,
lavatory and office cleaning purposes. If Tenant requires, uses or consumes
water for any other purposes, Landlord may install, at Tenant's expense,
meters or other means to measure Tenant's water consumption. Tenant shall pay
for the maintenance of said meter equipment and/or pay Landlord's cost of
other means of measuring such water consumption by Tenant. Tenant shall
reimburse Landlord, as Additional Rent, for the cost of all water consumed, as
measured by said meters or as otherwise measured, including sewer rents.
16.06 The initial moving in of Tenant's property for purposes of
occupying the Demised Premises shall be during Business Hours, upon no less
than 48 hours' advance notice from Tenant, subject to Landlord's approval
which shall not be unreasonably withheld. The use of the freight elevator for
two days (during Business Hours) for moving in shall be at Landlord's expense
and additional use, if any, of the freight elevator for moving in shall be at
Tenant's expense at the rates then established by Landlord therefor.
16.07 If for any reason Tenant requires additional Building staff at
times other than Business Hours, Tenant shall request same upon no less than
48 hours' prior notice to Landlord. Landlord, whether or not requested by
Tenant, may determine that additional staff is required for the use of the
Demised Premises after Business Hours. Tenant shall pay for such additional
staff at the rates then established by Landlord therefor with ten (10) days
after the date of Landlord's invoice therefor.
16.08 Anything in this Lease to the contrary notwithstanding,
Landlord reserves the right to suspend or reduce the furnishing of heat,
utilities, or other services whenever and for so long as may be necessary, by
reason of Legal Requirements or Insurance Requirements or by reason of force
majeure, or due to repairs, alterations or improvements which Landlord is
required or permitted to make or which Landlord deems necessary in the Demised
Premises or the Building, and Landlord shall have no responsibility or
liability for such suspension or reduction of service. The foregoing shall not
be deemed to impose upon Landlord any obligation for the furnishing of any
service, maintenance or repair other than those specifically set forth in this
Lease; provided, however, that Landlord shall use reasonable diligence in
restoring such services to Tenant.
ARTICLE 17 - ACCESS TO PREMISES
------------------
17.01 Tenant shall (a) permit Landlord to use, maintain and replace
pipes and conduits in and through the Demised Premises and to erect new pipes
and conduits therein provided they are concealed within the walls, floors or
ceilings, (b) grant Landlord access to the Demised Premises upon reasonable
prior request, or immediately in the event of emergency, to permit Landlord to
inspect, replace, maintain, repair or make installations in respect of the
Building and its component parts and systems and subject to the foregoing,
grant Landlord access to the Demised Premises for the purpose of exhibiting
said premises to prospective purchasers or mortgagees of the Building, and
during the last twelve months of the Term for the purpose of showing the same
to prospective tenants; and (c) permit ingress and egress to Landlord, its
agents or employees and to other tenants of the Building in the event of
emergency. Landlord may, during the progress of any work in the Demised
Premises mentioned above, take all necessary materials and equipment into and
upon said premises, without the same constituting an eviction of Tenant in
whole or in part, nor shall Tenant be entitled to any abatement of Rent while
such work is in progress nor to any damages by reason of loss or interruption
of business or otherwise. Landlord agrees to perform such work as promptly as
reasonably possible and to use reasonable efforts to minimize interference
with Tenant's conduct of its business and may, where appropriate, construct
such temporary ▇▇▇▇▇▇▇ or barricades as Landlord determines to ensure the
safety of the work site and Tenant's employees, visitors, guests and personal
property. If the Demised Premises are located on a floor which is now or
hereafter designated a re-entry floor, Tenant shall provide such access to the
Demised Premises as required by law. If Tenant shall not be present to open
and permit an entry therein as shall be necessary or permissible, Landlord or
Landlord's agents may forcibly enter the same without rendering Landlord or
such agents liable therefor (if during such entry Landlord or Landlord's
agents shall accord reasonable care to Tenant's property) and without in any
manner affecting Tenant's obligations and covenants under this Lease. If
Tenant shall fail to grant any such access, the same shall be deemed a breach
of a material obligation under this Lease and, in addition to the other
remedies which Landlord may have under this Lease in the event of a default,
Landlord shall specifically be entitled to injunctive and other appropriate
relief.
17.02 If at any time any windows of the Demised Premises are
temporarily or permanently (restricted to windows on a lot line or otherwise
required by law, if permanently) darkened or obstructed for any reason
whatsoever, including, but not limited to repairs, improvements, maintenance
and/or cleaning in or about the Building, or if any part of the Building other
than the Demised Premises is temporarily or permanently closed or inoperable,
the same shall not be deemed an actual or constructive eviction and Tenant
shall be entitled to any compensation therefor or abatement or diminution of
Rent and such occurrence shall have no effect upon Tenant's obligations under
this Lease.
17.03 Tenant shall at all times maintain a full set of keys to the
Demised Premises with Landlord.
17.04 If, during the last month of the Term, Tenant shall have
removed all or substantially all of Tenant's property therefrom, Landlord may
immediately enter, alter, renovate or redecorate the Demised Premises without
limitation or abatement of Rent or incurring liability to Tenant for any
compensation and such act shall have no effect on this Lease or Tenant's
obligations hereunder.
17.05 Landlord shall have the right at any time without the same
constituting an eviction and without incurring liability to Tenant therefor to
change the arrangements and/or location of public entrances, passageways,
doors, doorways, corridors, elevators, stairs, toilets or other public parts
of the Building and to change the name or number of designation by which the
Building may be known. There shall be no allowance to Tenant for diminution of
rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord or other
tenants making any repairs in the Building or any such alterations, additions
and improvements. Furthermore, Tenant shall not have any claim against
Landlord by reason of Landlord's imposition of such controls or the manner of
access to the Building by Tenant's social or business visitors as Landlord may
deem necessary for the security of the Building and its occupants.
ARTICLE 18 - ADJACENT EXCAVATION - SHORING
-----------------------------
If an excavation or other substructure work shall be made upon land
adjacent to the Demised Premises or the Building, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to cause such
excavation or other substructure work, license to enter upon the Demised
Premises for the purposes of doing such work as said person shall deem
necessary or desirable to preserve the wall or the Building from injury or
damage and to support the same by proper foundations, and same shall not be
deemed an actual or constructive eviction of Tenant and shall not give rise to
any claim for damages or indemnity against Landlord, or diminution or
abatement of Rent.
ARTICLE 19 - EMINENT DOMAIN
--------------
19.01 If the whole of the Demised Premises shall be condemned or
taken in any manner for any public or quasi-public use, the Term of this Lease
shall cease and terminate as of the date of vesting of title.
19.02 In the event that less than the whole of the Demised Premises
shall be so condemned or taken, then, effective as of the date of vesting of
title, the Rent hereunder shall be abated in an amount thereof apportioned
according to the area of the Demised Premises so condemned or taken.
19.03 In the event that less than the whole of the Building shall be
so condemned or taken, then Landlord (whether or not the Demised Premises are
affected) may, at Landlord's option, terminate this Lease and the Term granted
hereunder by notifying Tenant in writing of such termination within sixty (60)
days following the date of vesting of title. If this Lease be terminated
pursuant to the foregoing, said termination shall be effective and this Lease
shall expire as of the date such notice from Landlord to Tenant shall be
given, with the same effect as if such date were originally set forth as the
Expiration Date hereof and Rent shall be adjusted and prorated as of said
date. If Landlord does not elect to terminate this Lease, as aforesaid, this
Lease shall be and remain unaffected by such condemnation or taking, except
that the Rent under this Lease shall be abated in an amount thereof
apportioned according to the area of the Demised Premises so condemned or
taken.
19.04 In the event of any condemnation or taking as hereinbefore
mentioned of all or a part of the Building, subject to the rights of Superior
Mortgagee, Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in Tenant, and Tenant hereby expressly assigns to
Landlord any and all right, title and interest of Tenant now or hereafter
arising in or to any such award or any part thereof, and Tenant shall be
entitled to receive no part of such award. The foregoing, however, shall not
preclude Tenant from seeking (after Landlord has recovered its award) a
separate award for Tenant's moving expenses and loss of Tenant's Property if
such award does not reduce and is not payable out of the award for the
Building.
19.05 It is expressly understood and agreed that the provisions of
this Article 19 shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period. In such instance, Tenant's
obligations hereunder shall continue unabated.
19.06 In the event any part of the Demised Premises be taken to
effect compliance with any law or requirement of public authority other than
in the manner hereinabove provided in this Article 19, then, (i) if such
compliance is the obligation of Tenant under this Lease, Tenant shall not be
entitled to any diminution or abatement of Rent or other compensation from
Landlord on account thereof, but (ii) if such compliance is the obligation of
Landlord under this Lease, the Rent hereunder shall be reduced and/or
adjusted, as necessary in the same manner as is provided in Section 19.02
according to the reduction in area of the Demised Premises resulting from such
taking.
ARTICLE 20 - LOBBY DIRECTORY; SIGNS; USE OF NAME
-----------------------------------
20.01 Landlord shall provide up to six (6) listings in respect of
Tenant, its principals or employees on the tenant directory located in the
main lobby of the Building. Landlord shall provided additional listings, if
available, and Tenant shall pay, within five (5) days after receipt of
Landlord's invoice therefor, a charge for each additional listing or
substitute listing at Landlord's then prevailing rate.
20.02 No signs or other graphic device or advertisement shall be
permitted in the corridors of the Building, or the entrance of the Demised
Premises or in any windows of the Demised Premises. Signs may be placed on the
exterior door of the Demised Premises, subject to Landlord's approval of their
contents and appearance, which approval shall not be unreasonably withheld.
20.03 Tenant hereby covenants that it shall not use the name of the
Building or its logo in any advertising or promotional literature or brochures
without the express prior written consent of Landlord, except that the name of
the Building may be used as part of Tenant's address.
ARTICLE 21 - EXPERTS FEES; NO PROFESSIONAL RESPONSIBILITY
--------------------------------------------
21.01 Whenever Tenant shall submit to Landlord any plan, agreement or
other document for Landlord's consent or approval, other than original
first-time submissions of plans, agreements or other documents required hereby
to be submitted as set forth in the Work Letter, and Landlord requires the
opinion of Landlord's consultants or professionals as to the form or substance
thereof, Tenant agrees to pay the reasonable fees of such consulting or
professional services for reviewing the said plan, agreement or document.
21.02 If Tenant requests consent to any act that requires Landlord's
consent under this Lease and if Landlord, in its sole discretion, refers the
matter to its attorney, then, whether or not such consent is granted, Tenant
agrees to reimburse Landlord for its reasonable attorney's fees as Additional
Rent.
21.03 Landlord and Landlord's consultants and professionals shall
have no responsibility for the design, adequacy or legal compliance of any
plan, agreement or document submitted to Landlord for review or approval and
Tenant acknowledges that the purpose of their review or approval is solely to
advise Landlord and represent Landlord's interest in connection with any such
plan, agreement or document.
ARTICLE 22 - SECURITY
--------
22.01 Tenant has deposited with Landlord the sum of $99,982.50 as
security for the faithful performance and observance by Tenant of the terms,
provisions, covenants and conditions of this Lease (the "Security Deposit").
The amount of the Security Deposit shall be increased by Tenant coincident
with every increase in Base Annual Rent. It is agreed that in the event Tenant
defaults in respect of any of the terms, provisions, covenants and conditions
of this Lease including, but not limited to, the payment of Rent, Landlord may
use, apply or retain the whole or any part of the Security Deposit to the
extent required for the payment of any Rent or any other sum as to which
Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of the
terms, provisions, covenants, and conditions of this Lease, including but not
limited to, any damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. In the event that Tenant shall
fully and faithfully comply with all of the terms, provisions, covenants, and
conditions of this Lease, the Security Deposit shall be returned to Tenant
after the date fixed as the end of this Lease and after delivery of possession
of the Demised Premises to Landlord in the condition required by, and in
accordance with, the terms of this Lease. In the event of a sale of the
Building or leasing of the Building, Landlord shall have the right to transfer
the Security Deposit to the vendee or lessee and Landlord shall thereupon be
released by Tenant from all liability for the return of such Security Deposit;
and Tenant agrees to look solely to the new landlord for the return of said
Security Deposit; and it is agreed that the provisions hereof shall apply to
every transfer or assignment made of the Security Deposit to a new landlord.
Tenant further covenants that it will not assign or encumber or attempt to
assign or encumber the Security Deposit and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. In the event Landlord applies
or retains any portion or all of the Security Deposit, Tenant shall forthwith
restore the amount so applied or retained so that at all time the amount
deposited shall be as set forth above.
22.02 If the Security Deposit held by Landlord shall be in cash, the
same shall be held in an interest-bearing account and any interest earned
shall be for the account of Tenant and shall be held by Landlord as an
addition to the Security Deposit for the entire Term of the Lease. Landlord
shall be entitled to an administrative fee of 1% per annum, or such greater
percentage permitted by law, on the amount of the Security Deposit held by
Landlord. The administrative fee shall be paid to Landlord at the end of the
Term of this Lease or at such other time or times as Landlord shall elect.
22.03 In the event that during the Term of this Lease the Security
Deposit held by Landlord (not including interest) is less than three monthly
installments of the Base Annual Rent and Additional Rent payable under Article
3, Tenant shall, on written demand by Landlord, deposit with Landlord on
account of the security herein provided for, the difference between the
Security Deposit then held by Landlord and a sum equal to three (3) months'
installments of Base Annual Rent and such Additional Rent.
22.04 If Tenant fails to pay any Base Annual Rent or any Additional
Rent payable under Article 3 of this Lease within ten (10) days after such
payment is due twice in any twelve-month period, Tenant shall furnish
Landlord, within ten days after demand by Landlord, with additional monies
equal to one month's installment of Base Annual Rent at the rate payable
during the last Lease Year which shall be added to and included in the
Security Deposit.
ARTICLE 23 - BANKRUPTCY
----------
Landlord may, at its option, terminate this Lease upon the occurrence of
any of the following events: (a) Tenant files a voluntary petition under any
bankruptcy or insolvency law; or (b) an involuntary petition alleging an act
of bankruptcy or insolvency is filed against Tenant under any bankruptcy or
insolvency law; or (c) a petition is filed by or against Tenant under the
reorganization provisions of the United States Bankruptcy Act or under the
provisions of any similar law; or (d) a petition is filed by Tenant under the
arrangement provisions of the United States Bankruptcy Act or under the
provisions of any similar law; or (e) a receiver of Tenant or of, or for, the
property of Tenant is appointed. If Landlord desires to exercise its option to
terminate this Lease pursuant to the foregoing, Landlord shall do so by giving
notice to Tenant, (i) at any time after receipt of notice of the occurrence of
any of the foregoing events, or (ii) at any time after such event continues
for thirty (30) days if such event occurred without the consent of Tenant,
stating that this Lease will terminate at the expiration of ten (10) days
after receipt by Tenant of Landlord's notice and upon the expiration of said
ten (10) days, this Lease and the Term granted hereunder shall automatically
terminate with the same effect as if that day were the Expiration Date
originally set forth in this Lease. Nothing contained herein, including the
termination of this Lease as aforesaid, shall relieve Tenant of any liability
as set forth in Article 25.
ARTICLE 24 - END OF TERM
-----------
24.01 Tenant acknowledges that the Demised Premises must be
surrendered to Landlord, vacant and broom clean, in good order and condition,
ordinary wear excepted, at the expiration or sooner termination of the Term of
this Lease and that all improvements, additions and alterations thereto
previously made by Tenant (other than Initial Improvements) of which Landlord
shall have notified Tenant at the time of Landlord's approval of the plans
therefor that Landlord requires the removal of such improvements, additions
and/or alterations at or before the Expiration Date or upon the sooner
termination of this Lease, shall, at Landlord's option, be removed and the
Demised Premises restored at Tenant's sole expense. Tenant's obligations
hereunder shall survive the expiration or sooner termination of this Lease.
24.02 Tenant agrees to indemnify and save Landlord harmless against
costs, claims, loss or liability resulting from delay by Tenant in
surrendering the Demised Premises as set forth in Section 24.01, including,
without limitation, any claims made by any succeeding tenant founded on such
delay. The parties hereto agree that the reasonable value of the use and
occupancy of the Demised Premises beyond the date of the expiration or sooner
termination of the Term of this Lease (the "Termination Date") is a sum equal
to two and one-half times the Base Annual Rent and Additional Rent which was
payable in or attributable to the last month of the Term thereof (the "Use and
Occupancy Fee"). Accordingly, Tenant agrees that if the Demised Premises are
not surrendered to Landlord within seven (7) days after the Termination Date,
Tenant shall pay the Use and Occupancy Fee to Landlord for each month and for
each portion of any month during which Tenant holds over in the Premises after
the Termination Date.
24.03 The parties hereto specifically agree that, in the event Tenant
does not surrender the Demised Premises to Landlord and Tenant is charged for
and pays such amounts as set forth in Section 24.02 for the use and occupancy
of the premises, all as set forth in the preceding paragraph, such occupancy,
the making of such payments and the acceptance of such payments by Landlord
shall not create, and shall not be deemed to create, any tenancy, month to
month or otherwise, of Tenant beyond the Termination Date. No holding over by
Tenant after the Term shall operate to extend the Term. In the event of any
unauthorized holding over, Tenant shall indemnify and hold harmless Landlord
against all claims for damages by any other tenant to whom Landlord may have
leased all or any part of the Demised Premises effective upon the termination
of this Lease. Anything in this Article to the contrary notwithstanding, the
acceptance of any rent paid by Tenant pursuant to Section 24.02 shall not
preclude Landlord from commencing and prosecuting a holdover or summary
eviction proceeding, and the provisions of this Section 24.03 shall be deemed
to be an "agreement expressly providing otherwise" within the meaning of
Section 232-c of the Real Property Law of the State of New York and any
successor or similar law of like import. The provisions of this Article shall
survive the Termination Date.
24.04 Tenant expressly waivers, for itself and for any person
claiming through or under Tenant, any rights which Tenant or such person may
have under the provisions of Section 2201 of the New York Civil Practice Law
and Rules and any similar successor law of same import then in force in
connection with any holdover proceedings which Landlord may institute to
enforce the provisions of this Article. No act or thing done by Landlord or
its agents or employees shall be deemed an acceptance of a surrender of this
Lease or the Premises, and no agreement to accept such surrender shall be
valid unless in writing and signed by Landlord.
ARTICLE 25 - DEFAULT
-------
25.01 In the event that:
(a) Tenant defaults in fulfilling any of the covenants of this
Lease other than the payment of Rent; or
(b) the Demised Premises become vacated or deserted or Tenant
fails to continuously and uninterruptedly use and occupy the Demised Premises
for the operation of its business in the ordinary course after the date Tenant
first occupies the Demised Premises for any period in excess of thirty (30)
days, except if such vacating, deserting or failure to so use the Demised
Premises is due to the Demised Premises being uninhabitable due to fire or
similar disaster; or
(c) the Demised Premises are damaged by reason of negligence or
carelessness of Tenant, its agents, employees or invitees; or
(d) any execution or attachment shall be issued against Tenant
or any of Tenant's property, or any other event shall occur by operation of
law or otherwise, whereupon the Demised Premises shall be taken or occupied by
someone other than Tenant; or
(e) Tenant shall default with respect to any other lease or
agreement between Landlord or any affiliate of Landlord and Tenant, after any
required notice thereunder or lapse of any applicable grace period (which
grace period shall run concurrently with any required grace period or cure
period hereunder); or
(f) Tenant shall fail to commence and diligently continue work
on the Initial Improvements at the Demised Premises within thirty (30) days
after the Commencement Date, of which fact Landlord shall be the sole judge;
or
(g) Tenant shall default in any term or condition of this Lease
requiring the payment of Rent, or other charges due under this Lease;
then, in the event of the occurrence of the events described in clauses (a),
(b), (c), (d), (e) and (f) above, upon Landlord serving a written notice upon
Tenant specifying the nature of such default and stating that the Term of this
Lease shall expire on a date thirty (30) days thereafter, upon the expiration
of said thirty (30) days, if Tenant shall have failed to comply with or remedy
such default, or if such default shall be of a nature that the same cannot be
completely cured or remedied within said thirty (30) day period and if Tenant
shall not have diligently commenced curing such default within such thirty
(30) day period, this Lease and the Term thereof shall automatically expire as
fully and completely as if it were the date herein definitely fixed for the
expiration of the Term, and all right, title and interest of Tenant hereunder
shall thereupon wholly cease and expire, and Tenant shall thereupon quit and
surrender the Demised Premises to Landlord, it being the intention of the
parties hereto to create hereby a conditional limitation on the Term of this
Lease.
25.02 If Tenant shall default in clause (g) of Section 25.01, then
Landlord shall have the option to (x) institute legal proceedings (after three
(3) days' written notice of default) in respect of the nonpayment of Rent or
other charges or (y) if Tenant has failed to pay any Rent or other charges
within ten (10) days after such payments are due twice in the preceding twelve
month period (not including the latest default), serve a written notice upon
Tenant specifying the default and stating that this Lease shall terminate
three (3) days thereafter, and if said default has remained uncured for such
three (3) day period following the service upon Tenant of such notice, the
Term of this Lease shall automatically expire as fully and completely as if it
were the date herein definitely fixed for the expiration of the Term, and all
right, title and interest of Tenant hereunder shall thereupon wholly cease and
expire, and Tenant shall thereupon quit and surrender the Demised Premises to
Landlord, it being the intention of the parties hereto to create hereby a
conditional limitation on the Term of this Lease.
25.03 Notwithstanding anything to the contrary contained in this
Article 25, if Tenant shall default in any payment of Rent or any other
payment required in this Lease, and if such default shall have continued for
ten (10) after days Landlord shall have given Tenant notice specifying such
default, or if this Lease is terminated as provided in Sections 25.01 or
25.02, Landlord or its agents or employees may immediately or at any time
thereafter re-enter the Demised Premises either by summary dispossess
proceedings or by any suitable action or proceeding at law, or by force or
otherwise, without being liable for indictment, prosecution or damages
therefor, and may repossess same, and remove any person therefrom, to the end
that Landlord may have, hold and enjoy the Demised Premises. No such re-entry
or taking possession of the Demised Premises by Landlord shall be construed as
an election on its part to terminate this Lease unless a written notice of
such intention be given to Tenant or unless the termination thereof be decreed
by a court of competent jurisdiction and in no event shall re-entry be deemed
an acceptance of surrender of this Lease. The term "re-enter" as used herein,
is not restricted to its technical legal meaning. In the event of any
termination of this Lease under the provisions of Section 25.01 or 25.02 or as
provided elsewhere or if Landlord shall re-enter the Demised Premises under
the provisions of this Section 25.03, whether by force, dispossess proceedings
or otherwise, or any provision of law by reason of Tenant's default under this
Lease, Tenant shall pay to Landlord the Rent payable under this Lease up to
the later of such termination of this Lease, or of such recovery of possession
of the Demised premises by Landlord, as the case may be, and shall also pay to
Landlord the damages as set forth in Section 25.04.
25.04 If by reason of Tenant's default this Lease is terminated, or
if Landlord reenters the Demised Premises under the provisions of this Article
25, or any other provisions of this Lease, by or under any summary dispossess
or other proceeding or action or any provision of law, Tenant shall pay to
Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease
or at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate amount
of Base Annual Rent and Additional Rent which would have been payable by
Tenant for the period commencing with such earlier termination of this Lease
or the date of any such re-entry, as the case may be, and ending with the
Expiration Date, over (ii) the aggregate rental value of the Demised Premises
for the same period, both discounted to their present value at the rate per
annum of the average yield per annum of United States Treasury notes with
remaining terms of five years as published in the Wall Street Journal, PLUS an
amount equal to the sum of Landlord's cost of recovering and reletting the
Demised Premises (including, without limitation, repossession costs,
alteration costs and other expenses of preparing the Demised Premises for
reletting, brokerage commissions, and attorneys' fees and disbursements), or
(b) sums equal to the Base Annual Rent and Additional Rent
which would have been payable by Tenant had this Lease not so terminated, or
had Landlord not so reentered the Demised Premises, payable upon the due dates
therefor (as provided in this Lease) following such termination or such
re-entry until the Expiration Date, provided however, that Landlord shall
credit Tenant with the net rents received by Landlord from such reletting,
such net rents to be determined by first deducting from the gross rents as and
when received by Landlord from such reletting the expenses incurred by
Landlord in terminating this Lease or in reentering the Demised Premises and
in securing possession thereof, as well as the expenses of reletting,
including altering and preparing the Demised Premises for new tenants,
brokers' commissions, attorneys' fees and disbursements, and all other
expenses, it being understood that any such reletting may be for a period
shorter or longer than what would have been the unexpired portion of the Term
if this Lease had not so terminated or if Landlord has not so reentered the
Demised Premises, but in no event shall Tenant be entitled to receive any
excess of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the collection of
damages pursuant to this subdivision to a credit in respect of any net rents
from a reletting, except to the extent that such net rents are actually
received by Landlord. If the Demised Premises or any part thereof is relet in
combination with other space, then proper apportionment on a per square foot
basis shall be made of the rent received from such reletting and of the
expenses of reletting. Landlord shall be entitled to recover from Tenant each
monthly deficiency as the same shall arise and no suit to collect the amount
of the deficiency for any month shall prejudice Landlord's right to collect
the deficiency for any prior or subsequent month by a similar proceeding.
Alternatively, suit or suits for the recovery of such deficiencies may be
brought by Landlord from time to time at its election.
25.05 Nothing herein or elsewhere in this Lease shall obligate
Landlord to relet or offer to relet the Demised Premises or if the Demised
Premises are relet, to collect the Rent thereof under such reletting, upon a
default by Tenant and Landlord's failure to relet or offer to relet or collect
the Rent on a relet of the Demised Premises as aforesaid shall not release
Tenant of any of its obligations or liabilities hereunder and in no event
shall Tenant be entitled to receive any excess, if any, of such rents
collected under a relet over the sums payable by Tenant to Landlord hereunder.
25.06 If the Demised Premises or any part thereof is relet by
Landlord for what would have been the unexpired portion of the Term if this
Lease had not so terminated, or if Landlord had not so reentered the Demised
Premises, before presentation of proof of such damages to any court,
commission or tribunal, the amount of rent set forth in any lease(s) in
connection with such reletting shall, prima facie, be the fair and reasonable
rental value for the Demised Premises, or part thereof, so relet during the
term of the reletting. Landlord shall have the right to relet the Demised
Premises or any part thereof at such rental or rentals and upon such other
terms and conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, shall determine.
25.07 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if this Lease
had not so terminated or had Landlord not so reentered the Demised Premises.
Nothing herein contained shall be construed to limit or preclude recovery by
Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by
reason of any default of Tenant hereunder. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain
as damages by reason of the termination of this Lease or re-entry on the
Premises for the default of Tenant under this Lease an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved whether or
not such amount is greater than, equal to, or less than any of the sums
referred to in Section 25.04.
25.08 In the event of a breach or threatened breach by Tenant of any
of its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled at any time and Landlord
may invoke any remedy allowed at law or in equity as if specific remedies were
not provided for herein.
25.09 If this Lease shall terminate under the provisions of this
Article 25, Landlord shall be entitled to retain all moneys, if any, paid by
Tenant to Landlord, whether as advance rent, security or otherwise.
25.10 Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord obtaining
possession of the Demised Premises, by reason of the violation by Tenant of
any of the covenants and conditions of this Lease or otherwise.
25.11 Tenant here designates its attorney, and Tenant's attorney, by
signing below, agrees to act, as Tenant's agent and to accept any service of
process in connection with this Lease.
ARTICLE 26 - CURING TENANT'S DEFAULTS
------------------------
26.01 If Tenant shall default in the performance of any covenant,
agreement, term, provision or condition herein contained (other than the
payment of Rent or any other charges due hereunder), Landlord, without thereby
waiving such default, may perform the same for the account of and at the
expense of Tenant, without notice in a case of emergency and in any other case
if such default continues after three (3) days from the date of the giving of
written notice by Landlord to Tenant of intention to do so. Bills for any
expenses incurred by Landlord (including, but not limited to, legal expenses)
in connection with any such performance by Landlord for the account of Tenant,
as well as bills for any property, material, labor or services provided,
furnished or rendered, by Landlord to Tenant, with interest at the rate set
forth in Section 2.06, may be sent by Landlord to Tenant monthly, or
immediately, at Landlord's option, and shall be due and payable by Tenant
within ten (10) days after the same is sent to Tenant by Landlord, and the
amounts thereof shall be deemed to be Additional Rent under this Lease.
26.02 In the event any check delivered to Landlord for the payment of
Rent or any item of Additional Rent is returned to Landlord after having been
dishonored by Tenant's bank, Tenant shall be liable to Landlord for $50.00 as
an item of Additional Rent. If two checks of Tenant are returned in any twelve
month period, Tenant shall thereafter be required to pay for any item of Rent
or Additional Rent by certified check or bank check.
ARTICLE 27 - INDEMNITY
---------
27.01 Tenant agrees to indemnify, defend and save harmless, Landlord,
each Superior Lessor and Superior Mortgagee, and any managing agent of
Landlord, and their respective partners, officers, directors, stockholders,
members, beneficiaries, contractors, agents and employees from and against any
and all liability (statutory or otherwise), claims, suits, demands, damages,
judgments, costs, fines, penalties, interest and expenses (including, but not
limited to, reasonable counsel fees and disbursements incurred in any action
or proceeding), to which Landlord or any such indemnified party may be subject
or suffer by reason of any liability or claim for any injury to, or death of,
any person or persons or damage to property (including any loss of use
thereof) or otherwise arising from or in connection with Tenant's negligent
use and occupancy of the Demised Premises or omitted in or about the Demised
Premises during the Term of this Lease and during the period of time, if any,
prior to the Commencement Date that Tenant may have been given access to the
Demised Premises, or arising from any condition of the Demised Premises or due
to or resulting wholly or in part from any default by Tenant in the
performance of Tenant's obligations under this Lease or from any negligent act
or omission of Tenant or any of Tenant's agents, contractors, servants,
employees, subtenants, licensees, guests or invitees. The indemnity set forth
herein shall survive the expiration or sooner termination of the Term hereof.
27.02 Tenant shall reimburse and compensate Landlord as Additional
Rent within five (5) days after rendition of a statement for all expenditures
made by or damages or fines sustained or incurred by Landlord or any party
indemnified pursuant to Section 27.01 above (including, but not limited to,
reasonable counsel fees and disbursements incurred or paid in connection with
any action or proceeding) due to the operation of this Article or
nonperformance or noncompliance with or breach or failure by Tenant to observe
any term, covenant or condition of this Lease. If, in any action or
proceeding, liability arising out of the negligence of both Landlord and
Tenant is established, Tenant agrees (i) to indemnify Landlord in accordance
with the provisions of this Article and (ii) if the claim is covered by
insurance, to waive any right of contribution against the Landlord.
ARTICLE 28 - EXCULPATION; CONSENTS
---------------------
28.01 Notwithstanding any provisions in this Lease or its exhibits to
the contrary, if Tenant shall recover a money judgment against Landlord, such
judgment shall be satisfied only out of the proceeds of sale received upon
execution of such judgment and levied thereon against the right, title and
interest of Landlord in the Building and out of rents or other income from
such Building receivable by Landlord, or out of the consideration received by
Landlord from the sale or other disposition of all or any part of Landlord's
right, title and interest in the Building, subject, nevertheless, to the
rights of any Superior Lessor or Superior Mortgagee, and neither Landlord nor
any of the members comprising the entity which is the Landlord herein shall be
liable for any deficiency. Neither Landlord nor any disclosed or undisclosed
principal of Landlord, or officer, director, stockholder, partner or agent of
Landlord or of any such principal, nor any successor of any of them, shall
have any personal liability and no property or assets of any of the foregoing
persons shall be subject to levy, execution, attachment or other enforcement
procedure, for the satisfaction of Tenant's remedies under or with respect to
this Lease, the relationship of Landlord and Tenant hereunder, or Tenant's use
and occupancy of the Demised Premises or any other liability of Landlord to
Tenant.
28.02 If Tenant requests Landlord's consent and Landlord fails or
refuses to give such consent, Tenant shall not be entitled to any damages for
any withholding by Landlord of its consent; Tenant's sole remedy therefor
shall be an action for specific performance or injunction, and such remedy
shall be available only in those cases where this Lease provides that Landlord
shall not unreasonably withhold its consent or where as a matter of law
Landlord may not unreasonably withhold its consent. Notwithstanding anything
to the contrary contained in this Lease, in any instance where the consent of
Superior Lessor and/or Superior Mortgagee is required, Landlord shall not be
required to give its consent unless and until Superior Lessor and/or Superior
Mortgagee has given its consent.
ARTICLE 29 - BROKERS
-------
Each of Landlord and Tenant covenants, represents and warrants that no
broker participated in or brought about this Lease and that no broker with
which Landlord or Tenant, as the case may be, has dealt is or will be entitled
to a commission as a result of the execution and delivery of this Lease other
than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & Associates, Inc. whom Landlord agrees to pay pursuant
to a separate agreement. Each of Landlord and Tenant agrees to indemnify and
save the other harmless from and against any claim or cost or expense
(including attorneys' fees) or liability for any compensation, commissions or
charges claimed by any other broker in connection with this Lease or the
negotiation thereof.
ARTICLE 30 - NOTICES
-------
30.01 Except as set forth below in Section 30.02, any ▇▇▇▇, notice or
other communication which either party may desire or be required to give to
the other under this Lease shall be deemed sufficiently given or served if in
writing and delivered personally or by registered or certified mail, return
receipt requested, or by recognized overnight carrier as follows:
(a) From Landlord to Tenant at: one copy to Tenant at the
address first hereinabove set forth until Tenant occupies the Demised Premises
for its business in the ordinary course and thereafter at the Demised
Premises.
(b) From Tenant to Landlord: one copy shall be to Landlord at
the address first hereinabove set forth, attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Building
Manager and one copy to Landlord c/o ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 100 19, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
The time of rendition of a ▇▇▇▇ and of the giving of such notice or other
communication shall be deemed to be the time when the same is personally
delivered to Tenant, or three days after mailing or the day after delivery to
the recognized overnight carrier, as herein provided. All notices given from
Landlord to Tenant, including, without limitation, notices of default and/or
termination of Tenant's interests under this Lease, may be given by Landlord's
attorney acting as agent on behalf of Landlord. Notwithstanding the foregoing
provisions, notices from Tenant to Landlord requesting after-hours or special
services shall also be given by hand delivery to the Building manager or any
other person in the Building designated by Landlord to receive such notices.
30.02 Either party shall have the right to substitute addresses for
such notices upon prior written notice to the other given in the manner set
forth above in Section 30.01 provided that notice of such change of address
shall be effective only upon receipt.
ARTICLE 31 - RESERVED
--------
ARTICLE 32 - WAIVER OF TRIAL BY JURY
-----------------------
TENANT AND LANDLORD EACH HEREBY WAIVES TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY A THE OTHER ON ANY MATTERS WHATSOEVER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT, TENANT'S USE OF OR OCCUPANCY OF THE DEMISED PREMISES,
INCLUDING ANY CLAIM OF INJURY OR DAMAGE AND ANY EMERGENCY AND OTHER STATUTORY
REMEDY IN RESPECT THEREOF. It is further agreed that in the event Landlord
commences any summary proceeding for nonpayment or possession of the Demised
Premises, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding and shall not seek to consolidate such
proceeding with any action which may have been or will be brought by Tenant or
any other person.
ARTICLE 33 - NO WAIVER
---------
33.01 The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
or of any of the Rules and Regulations as set forth in Article 34 or hereafter
adopted by Landlord, shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation.
33.02 The receipt by Landlord of Rent, with knowledge of the breach
of any covenant of this Lease, shall not be deemed a waiver of such breach and
no provision of this Lease shall be deemed to have been waived by Landlord,
unless such waiver is in writing and signed by Landlord. No payment by Tenant
or receipt by Landlord of a lesser amount than the monthly Rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated Rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such Rent or pursue any other
remedy.
33.03 No act or thing done by Landlord or Landlord's agents during
the Term of this Lease shall be deemed an acceptance of a surrender of the
Demised premises and no agreement to accept such surrender shall be valid
unless in writing signed by Landlord. No employee or agent of Landlord shall
have any power to accept the keys of the Demised Premises prior to the
termination of this Lease and the delivery of keys to any such employee or
agent shall not operate as a termination of this Lease or a surrender of the
Demised Premises.
ARTICLE 34 - RULES AND REGULATIONS
---------------------
34.01 Tenant and Tenant's subtenants and their respective servants,
employees, agents, visitors and licensees shall observe faithfully, and comply
strictly with all Rules and Regulations as Landlord or Landlord's agents may
from time to time adopt. Notice of any Rules and/or Regulations, or any
changes thereto, shall be given in such manner as Landlord may elect. In case
of any conflict or inconsistency between the provisions of this Lease and any
of the Rules and Regulations, the provisions of this Lease shall control.
34.02 Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to enforce the Rules and Regulations or
terms, covenants or conditions in any other lease, as against any other tenant
and Landlord shall not be liable to Tenant for violation of the same by any
other tenant, its subtenants or their respective servants, employees, agents,
visitors or licensees.
ARTICLE 35 - NO REPRESENTATIONS BY LANDLORD
------------------------------
35.01 Neither Landlord nor Landlord's agents have made any
representations or promises with respect to the Building or the Demised
Premises or any matter or thing affecting or related thereto except as
expressly set forth in this Lease.
35.02 All understandings and agreements heretofore made between the
parties are merged in this Lease which alone fully and completely expresses
the agreement between Landlord and Tenant. Any change, modification, discharge
or abandonment of this Lease shall not be binding and shall have no effect on
the obligations and rights of the parties unless in writing and signed by the
party against whom enforcement is sought.
ARTICLE 36 - INABILITY TO PERFORM (FORCE MAJEURE)
------------------------------------
This Lease and the obligations of Tenant to pay Rent hereunder and
perform all other covenants and agreements to be performed by Tenant
hereunder, shall not be affected, impaired or excused and Landlord shall not
have any liability to Tenant (regardless of whether Landlord is required to
proceed with reasonable diligence or to use reasonable efforts), because
Landlord is unable to fulfill, or is delayed in fulfilling, any of its
obligations under this Lease by reason of any of the following ("Force Majeure
Events"): delays caused by Tenant or other tenants, fire or other casualty;
acts of God; war; riot or other civil disturbance; accident; emergency; strike
or other labor trouble; governmental preemption of priorities or other
controls in connection with a national or other public emergency; difficulty
in securing proper amounts of or failure or defect in the supply or quality of
fuel, gas, steam, water, electricity, supplies or labor; or any other event
preventing or delaying Landlord from fulfilling any obligation, whether
similar or dissimilar, beyond Landlord's reasonable control.
ARTICLE 37 - CAPTIONS
--------
The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this Lease nor
the intent of any provisions thereof.
ARTICLE 38 - SUCCESSORS AND ASSIGNS
----------------------
The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, executors, administrators, successors and except as
otherwise provided in this Lease, their assigns.
ARTICLE 39 - MISCELLANEOUS
-------------
39.01 Neither this Lease nor any memorandum thereof shall be recorded
or filed in the office of the New York City Register or any successor
government agency.
39.02 If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
39.03 If the original Tenant herein named is comprised of two or more
persons, individually or as co-partners of a partnership, or if Tenant's
interest in this Lease is assigned to a partnership (or to two or more
persons, individually or as co-partners of a partnership), the following
provisions shall apply: (a) the liability of each of the persons at any time
comprising Tenant shall be joint and several, (b) each of the persons at any
time comprising Tenant shall be bound by (i) any written instrument executed
by Tenant or any successor Tenant changing, modifying, extending or
discharging this Lease, in whole or in part, or surrendering all or any part
of the Demised Premises to Landlord, (ii) any notices given by Tenant or by
any of the persons comprising Tenant, and (iii) any statement executed by
Tenant or any of the persons comprising Tenant, pursuant to Article 13, (c)
any notices given to Tenant or to any of such persons shall be binding on
Tenant and all such persons, (d) if Tenant admits new partners, all of such
new partners shall, by their admission to Tenant, be deemed to have assumed
joint and several liability for the performance of all of Tenant's obligations
under this Lease, (e) Tenant shall give prompt notice to Landlord of the
admission of any such new partners, and on demand of Landlord shall cause each
such new partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord wherein each such new partner assumes joint and
several liability for the performance of all of Tenant's obligations under
this Lease (but neither Landlord's failure to request any such agreement nor
the failure of any such new partner to execute or deliver any such agreement
to Landlord shall vitiate the provisions of clause (d) of this Section), and
(f) the death, adjudication of incompetency or withdrawal of an individual
comprising Tenant or of an individual partner shall not relieve him or his
personal representatives of any liability for the performance of Tenant's
obligations under this Lease. In the event Tenant shall be an entity other
than a corporation, then any conversion of Tenant into, or any assignment of
this Lease to, a limited liability company shall be deemed an event of default
hereunder and shall be expressly prohibited by this Lease.
39.04 Nothing herein, including, without limitation, the provisions
hereof entitling Landlord to permit Tenant to credit certain amounts due to
adjustments in Additional Rent to certain items of Rent due under this Lease,
shall entitle Tenant to set-off against items of Rent, the amount of any
credit or any other amount without Landlord's written statement permitting
such credit. Tenant's sole recourse in the event of Landlord's failure to make
any credit claimed by Tenant shall be to commence a separate action for the
recovery of the amount of such credit.
39.05 Irrespective of the place of execution or performance, this
Lease shall be governed by and construed in accordance with the laws of the
State of New York without regard to the principles of conflict of laws.
39.06 This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Lease to
be drafted.
39.07 Tenant hereby represents to Landlord that it is not entitled,
directly or indirectly, to diplomatic or sovereign immunity. In all disputes
arising out of this Lease, Landlord, the original Tenant herein named, each
person comprising Tenant, Tenant's Guarantor (if any), each assignee of
Tenant's interest in this Lease and each person comprising each such assignee,
shall be deemed subject to service in the State of New York and to the
jurisdiction of the state and federal courts located in the State of New York,
County of New York and such service may be accomplished in the same manner as
the giving of a notice.
39.08 In order to avoid delay, this Lease has been prepared and
submitted to Tenant for signature with the understanding that it shall not be
deemed an offer and will not bind Landlord unless and until it is executed by
Landlord and delivered to Tenant.
39.09 Tenant covenants and represents that the persons listed on
Exhibit E attached hereto and made a part hereof are all of the officers of
Tenant, and that the information set forth thereon is true, accurate and
complete.
39.10 This Lease shall not be deemed or construed to create or
establish any relationship of partnership or joint venture or similar
relationship or arrangement between Landlord or Tenant.
39.11 Any apportionments or prorations of rent under this Lease shall
be computed on the basis of a 360-day year, with 12 months of 30 days each.
ARTICLE 40 - ADDITIONAL DEFINITIONS
----------------------
The following terms shall have the following meanings when used in the
Lease (including the Work Letter).
40.01 "Additional Rent" shall have the meaning set forth in Section
2.04 of this Lease.
40.02 "Base Annual Rent" shall have the meaning set forth in Section
2.02 of this Lease.
40.03 "Base Charge" shall have the meaning set forth in Section 4.01
of this Lease.
40.04 Reserved.
40.05 "Base Tax" shall mean the Taxes for the Base Tax Year.
40.06 "Base Tax Year" shall mean the Taxes for the twelve month
fiscal year commencing on July 1, 1998.
40.07 "Building" shall mean the real property, building and
improvements known as 1412-1418 Broadway, located in the County and State of
New York.
40.08 "Business Days" shall mean Mondays, Tuesdays, Wednesdays
Thursdays and Fridays, except holidays.
40.09 "Business Hours" shall mean the hours of 8:00 a.m. to 6:00 p.m.
on Business Days.
40.10 "Commencement Date" shall have the meaning set forth in Section
1.02 of this Lease.
40.11 "Consultant" shall have the meaning set forth in Section 4.02
of this Lease.
40.12 "Demised Premises" shall have the meaning set forth in the
first Witnesseth clause of this Lease.
40.13 "Electrical Consumption Charge" shall have the meaning set
forth in Section 4.03 of this Lease.
40.14 The term "emergency" shall mean a condition presenting imminent
danger to health or safety of persons or property in or about the Building.
40.15 "Expiration Date" shall have the meaning set forth in Section
1.01 of this Lease.
40.16 "Guarantor" shall mean any person or entity which guaranties
all or a portion of Tenant's obligations under this Lease.
40.17 "Landlord's Construction Manager/General Contractor" shall have
the meaning set forth in Article 5 of this Lease.
40.18 "Lease Year" shall have the meaning set forth in Section 1.02
of this Lease.
40.19 "Lease Year One" shall have the meaning set forth in Section
1.02 of this Lease.
40.20 "Profit" from any sublease of the Demised Premises shall mean
gross receipts from such sublease less (a) the aggregate Base Annual Rent and
Additional Rent due pursuant to this Lease for the sublet premises and (b) any
brokerage commission payable by Tenant with respect to the sublease. Profit
from any assignment of this Lease shall mean the gross receipts from said
assignment less any brokerage commission payable by Tenant with respect to
such assignment.
40.21 "Rent" shall have the meaning set forth in Section 2.04 of this
Lease.
40.22 "Tax Payment" shall have the meaning set forth in Section 3.01
(a) of this Lease.
40.23 "Tax Year" shall mean the 12 calendar months beginning on the
day following the end of the Base Tax Year, and each succeeding 12-month
period thereafter.
40.24 "Taxes" shall mean (w) the real estate taxes, sewer and water
rents assessments, special assessments and special ad valorem levies imposed
upon the Building including but not limited to: (i) taxes and assessments in
respect of any air rights or development rights now or hereafter appurtenant
to, or used in connection with the construction of the Building; (ii) fees,
taxes and charges in connection with any vaults, vault space or other space
within or outside the boundaries of the land upon which the Building is
located; (iii) assessments for public improvements or benefits to the Building
or the locality in which the Building is situated; and (iv) taxes, assessments
and charges in respect of any fixtures, equipment, facilities, systems or
personal property of Landlord serving or used in connection with the Building
by any federal, state, municipal or other governments or governmental bodies
or authorities or special districts, and (x) any expenses incurred by Landlord
in contesting such taxes, assessments or levies and/or the assessed value of
the Building and/or the Land, which expenses shall be allocated to the Base
Tax Year or the Tax Year to which such expenses related. If at any time during
the Term of this Lease the methods of taxation prevailing on the date hereof
shall be altered so that in lieu of, or as an addition to or as a substitute
for, the whole or any part of such real estate taxes, sewer and water rents
assessments, special assessments or ad valorem levies now imposed on real
estate there shall be levied, assessed or imposed (y) a tax, assessment, levy,
imposition, license, fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (z) any such other additional or
substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges of the part thereof so
measured or based shall be deemed to be included within the term "Taxes" for
the purposes hereof.
40.25 "Tenant's Proportionate Share" shall mean three and nine tenths
percent (3.90%).
40.26 "Term" of this Lease shall have the meaning set forth in
Section 1.01 of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this Lease as
of the date and year first above written.
Witness for Landlord
LANDLORD:
FASHION GALLERY OWNERS, LLC
By: Fashion Gallery, LLC, its Manager
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By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
TENANT:
Witness for Tenant ▇▇▇▇▇ LTD.
By:
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Name:
Title:
EXHIBIT A
FLOOR PLAN
EXHIBIT B
CLEANING SERVICES AND MAINTENANCE OF DEMISED PREMISES
(To be performed on all Business Days (Monday - Friday) except those which are
union holidays of the employees performing cleaning service and maintenance in
the Building or on days on which the Building is closed or as otherwise
provided in the Lease.)
A. Floors will be swept nightly. Carpets will be swept daily
with carpet sweeper and vacuumed weekly.
B. Office equipment, telephones, etc. will be dusted nightly.
C. Normal office waste in receptacles and ashtrays will be emptied
nightly.
D. Window blinds dusted semi-annually.
E. All walls, partitioning, louvers, wall hangings, lighting
fixtures, moldings and heating units will be dusted and
wiped down semi-annually.
F. Restrooms will be washed and disinfected once a day. All
brightwork and mirrors will be swept daily. Dispensers will
be checked and receptacles emptied daily.
EXHIBIT "C"
IMPROVEMENTS EXHIBIT
PART I. LANDLORD AND TENANT PRE-CONSTRUCTION OBLIGATIONS
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1. Tenant deliver to Landlord a detailed architectural plan containing the
information described in Annex I for the Demised Premises ("Tenant's
Preliminary Plans"). Tenant's Preliminary Plans shall be subject to
Landlord's written approval. Landlord shall review Tenant's Preliminary
Plans and shall notify Tenant of any required revisions or additions
thereto or comments thereon on or before the day which is twenty (20)
Business Days after Landlord's receipt of Tenant's Preliminary Plans.
Tenant acknowledges and agrees that Landlord's review of Tenant's
Preliminary Plans is intended solely to assist Tenant in the preparation
of Tenant's Plans and that such review shall in no way limit Landlord's
rights pursuant to this Exhibit "C" to review and reject Tenant's Plans.
2. Within thirty (30) days after the date of the Lease, Tenant shall deliver
to Landlord for Landlord's review complete drawings and specifications
prepared by Tenant's Architect and the Building engineers showing all
detail's for the layout and design of the Initial Improvements in the
Demised Premises ("Tenant's Plans"). Tenant's Plans shall be complete,
coordinated, biddable and buildable and shall include, without
limitation, the information set forth in Annex 11. Tenant shall provide
Landlord with six (6) prints and one (1) sepia of Tenant's Plans.
3. Tenant's Plans shall be subject to Landlord's written approval. Landlord
shall review Tenant's Plans and shall notify Tenant of any required
revisions or additions thereto within twenty (20) Business Days after
delivery of the proposed Tenant's Plans to Landlord.
4. Tenant shall take all steps necessary to insure that the initial
improvements to be constructed in the Demised Premises ("Initial
Improvements") shall not (i) adversely affect the Building's structure or
integrity or the Building Systems; (ii) affect the exterior of the
Building; (iii) result in a violation of, or require a change in, the
certificate of occupancy for the Building; (iv) affect any area of the
Building outside of the Demised Premises; (v) affect the curtain wall of
the Building; (vi) reduce the gross floor area of the Demised Premises;
or (vii) in Landlord's sole judgment, adversely affect the character or
value of the Building.
5. Based on Landlord's comments with respect to required revisions or
additions in Tenant's Plans, Tenant shall make such revisions or
additions and shall promptly resubmit Tenant's Plans to Landlord for
Landlord's approval. The above procedures shall be followed until
Tenant's Plans shall have been accepted by Landlord. Tenant's Plans, and
all modifications, revisions and resubmissions thereof, must (a) be in
accordance with applicable Legal Requirements and Insurance Requirements,
(b) be consistent in equipment, design and construction with good
construction practice, the Building and its standards, (c) be prepared by
and bear the seals of duly licensed professionals registered in the State
of New York and all other applicable governmental authorities having
jurisdiction in the Borough of Manhattan and (d) comply with the
provisions of the Lease.
6. Tenant shall obtain the prior consent of Landlord as to Tenant's general
contractor, or to a list of general contractors submitted by Tenant to
Landlord (from which Tenant shall select its general contractor), and to
all subcontractors to be used by Tenant or Tenant's general contractor in
the construction of the Initial Improvements. Tenant shall employ only
those subcontractors designated by Landlord to perform electrical or
sprinkler work in the Demised Premises.
7. Tenant acknowledges and agrees that any review or approval by Landlord of
any plans or specifications is solely for Landlord's benefit and without
any representation or warranty to Tenant as to the adequacy, correctness
or feasibility thereof or as to the compliance of such plans and
specifications with Legal Requirements or Insurance Requirements, and
Tenant shall be totally responsible for same. No third party shall have
any right to rely on Landlord's review or approval of any such plans and
specifications.
PART II. TENANT'S CONSTRUCTION OBLIGATIONS
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1. Tenant shall construct the Initial Improvements in accordance with
Tenant's Plans (as finally and unconditionally accepted by Landlord
pursuant to the provisions of Part I of this Exhibit C), the terms and
conditions of this Exhibit "C" and the applicable provisions of the
Lease.
2. Prior to commencement of construction of the Initial Improvements, Tenant
shall, at its expense, obtain all necessary municipal and other
governmental permits, authorizations, approvals and certificates for the
commencement and prosecution of the Initial Improvements and, upon
completion, for final approval thereof and shall provide copies of same
to Landlord. Landlord shall cooperate with Tenant in connection with the
procurement of such permits, approvals, authorizations and certificates,
provided that Tenant shall reimburse Landlord for any expenses incurred
by Landlord in connection therewith upon demand. Tenant shall maintain
all such permits, authorizations, approvals and certificates in full
force and effect throughout the construction of the Initial Improvements
and shall supply Landlord with copies of same.
3. Tenant agrees that the Initial Improvements shall be promptly commenced,
diligently prosecuted and completed by Tenant and shall be performed so
as not to interfere with the use by others of the Common Areas,
Landlord's operation of the Building, the use and operation of the
Building Systems, the completion of any work being performed by Landlord
or other tenants or occupants in the Building or the occupancy of any
tenant or occupant, and that Tenant shall be responsible for paying for
any increased costs incurred by Landlord as a result of the construction
of the Initial Improvements by Tenant. Tenant's construction of the
Initial Improvements shall be performed in a good and workmanlike manner
and in accordance with all applicable Insurance Requirements and Legal
Requirements. The provisions of Article 7 of the Lease shall apply during
the construction of the Initial Improvements.
4. Upon completion of the Initial Improvements, Tenant shall (a) obtain all
departmental signoffs, a certificate of completion, a modification to the
Building certificate of occupancy or other appropriate permit(s)
authorizing Tenant to occupy and use the Demised Premises (the
"Certificate of Occupancy") and (b) deliver to Landlord three (3)
complete sets of "as built" drawings for the Demised Premises.
5. (a) Landlord, on its own behalf and on behalf of any existing or
prospective Superior Lessor or Superior Mortgagee, shall retain the
right to inspect the Initial Improvements from time to time so long
as Landlord shall use reasonable efforts to minimize any
interference with the construction of the Initial Improvements.
(b) Tenant shall reimburse Landlord for Landlord's costs for all
services provided by Landlord in connection with Tenant's
construction of the Initial Improvements, including, without
limitation, vertical transportation, utilities, rubbish removal, and
labor costs.
(c) Subject to the terms and conditions of the Lease, Tenant shall, to
the extent required for construction of the Initial Improvements,
have access to and the right to use (i) the corridors, stairways,
walkways, plazas, telephone and electrical closets servicing the
Demised Premises, loading docks, elevators and other common and
service areas of the Property, in each case subject to any rules,
regulations and scheduling promulgated by Landlord with respect
thereto; and (ii) the Building Systems at the points which such
Building Systems connect to the horizontal systems to be installed
in the Demised Premises.
(d) Tenant covenants that it shall comply with such construction rules,
procedures and scheduling as shall be imposed by Landlord from time
to time with respect to construction of the Initial Improvements,
including, without limitation, the Construction RUICS and
Regulations.
(e) Landlord shall have no obligation to provide heat, ventilation, air
conditioning, condenser water or cleaning services to the Demised
Premises prior to occupancy of the Demised Premises by Tenant for
the conduct of its business.
(f) No material or equipment shall be incorporated in the Demised
Premises in connection with the making of such installations which
is subject to any lien, charge, mortgage or other encumbrance of any
kind whatsoever.
6. Tenant shall be entitled to a credit (the "Credit") against the cost of
the Initial Improvements, not to exceed the sum of $399,930.00 payable as
hereinafter set forth.
7. (a) All payments to be made by Landlord to Tenant in accordance with the
provisions of this Exhibit "C" shall be paid to Tenant on the tenth
(10th) Business Day after request therefor by Tenant, provided
Landlord has received requisitions from Tenant satisfying the
following: Any requisitions for payment presented to Landlord
hereunder shall be marked "Approved for Payment", and be
countersigned by Tenant's Architect and be accompanied by (i)
unconditional waivers of liens by Tenant's contractor and
subcontractors with respect to the work covered by the immediately
preceding requisition, (ii) certification of Tenant's Architect on
the AIA form, and (iii) such certificates and other evidence as
shall be necessary to confirm that the work described in the
requisition has been performed strictly in accordance with Tenant's
Plans.
(b) Prior to final payment by Landlord of the Credit, in addition to the
requirements enumerated in Paragraph 7(a) of Part II of this Exhibit
"C," Tenant shall furnish Landlord with (i) final waivers of lien
from Tenant's contractor, subcontractors and material suppliers, and
(ii) a certificate of Tenant's Architect that the Initial
Improvements have been completed in conformity with Tenant's Plans
and comply with all applicable Legal Requirements.
8. All sums due from Tenant to Landlord pursuant to this Exhibit "C" shall
be payable within five (5) Business Days after Tenant's receipt of an
invoice therefor and shall bear interest at the Lease Interest Rate from
the due date to the date of payment.
9. Tenant's general contractor shall maintain liability insurance in
accordance with the requirements applicable to Tenant set forth in the
Lease. Tenant and Tenant's general contractor shall be responsible for
reaching agreement with Landlord as to the terms and conditions for
conducting its work, including, but not limited to, arrangements for
hoisting, systems interfacing, use of temporary utilities, storage of
materials and access to the Demised Premises. As a condition precedent to
Landlord's approving Tenant's general contractor, Tenant and Tenant's
general contractor shall deliver to Landlord such assurances or
instruments to evidence Tenant's general contractor's compliance or
agreement to comply with the provisions of this paragraph.
10. Tenant shall indemnify, defend and hold harmless Landlord and its agents,
partners, contractors, employees, invitees and licensees, from and
against, and pay, any and all losses, damages, costs (including costs of
suit and attorneys' fees and disbursements), expenses, liabilities,
claims or causes of action arising out of, or relating to, the
construction of the Initial Improvements, including but not limited to,
mechanics', materialmen's or other liens or claims (and all costs or
expenses associated therewith) asserted, filed or arising out of any such
work and from and against any and all claims arising from or in
connection with any negligence, act, or failure to act, of Tenant, its
contractors, subcontractors, decorators, servants, agents or employees or
for any reason whatsoever arising out of Tenant's access to or being in
the Demised Premises or Building. All materialmen, contractors, artisans,
mechanics, laborers and other parties contracting with Tenant for the
furnishing of any labor, services, materials, supplies or equipment with
respect to any portion of the Demised Premises are hereby charged with
notice that they must look solely to Tenant for payment for the same.
Without limiting the generality of the foregoing, Tenant shall be
responsible for the repair of all damage caused by Tenant's general
contractor, its subcontractors, or their employees; provided, however,
that with respect to any such damage to Building Systems, Building
exterior or any portion of the Building outside the Demised Premises,
Landlord shall have the option, to be exercised within fifteen (15) days
after Landlord's receipt of notice of such damage, to elect, by notice to
Tenant, to make such repairs on behalf of Tenant and Tenant shall pay to
Landlord the cost thereof within twenty (20) days after demand therefor.
Tenant shall protect the Demised Premises and the Building, including all
Landlord's Work, from damage or soiling by Tenant's contractors,
subcontractors, materialmen and movers, and shall pay for any
replacements, repairs or extra cleaning necessitated by or arising in
connection with the construction of the Initial Improvements or the
moving of fixtures, equipment, furnishings, furniture and other property
of Tenant into or out of the Demised Premises or Building. The
obligations of Tenant under this paragraph shall survive the expiration
or earlier termination of the Lease.
11. Throughout the construction of the Initial Improvements, Tenant shall
carry or cause to be carried the insurance coverage required by the Lease
(including, without limitation, Article 7) and shall furnish Landlord
evidence (including certificates) of such insurance (and the payment of
all premiums therefor) prior to commencing construction of the Initial
Improvements. The maintenance of valid and effective insurance
certificates (evidencing such coverage), as well as the maintenance of
valid and effective permits as shall be required in connection with the
construction of the Initial Improvements, shall be an ongoing
precondition to Tenant having the right to proceed with the construction
of the Initial Improvements.
12. Terms used in this Exhibit "C" (including the Annexes) shall have the
meanings and definitions set forth in the Lease.
EXHIBIT "C"
ANNEX I
The below noted information must appear in the submission of the Architectural
Plan.
1. ARCHITECTURAL INFORMATION
(a) Locate all partitions by type and indicate typical construction
details of each type.
(b) Indicate all doors by type and indicate typical construction details
of each type. Attach preliminary hardware schedule.
(c) Indicate location and type of all windows and doors.
(d) Indicate location and specify type of wall covering if other than
latex paint.
(e) Indicate location and specify type of all floor covering if other
than building standard carpet or tile.
(f) Indicate location and preliminary details of all millwork.
2. ELECTRICAL AND TELEPHONE INFORMATION
(a) Indicate all wall telephone and 120 volt duplex electrical outlets
in walls and/or floor.
(b) Provide power requirements and location of all equipment requiring
other than 120 volts or equipment which requires a dedicated circuit
or isolated transformer such as copiers, refrigerators, telephones
or computer equipment.
(c) Indicate location and type of pantry equipment.
3. LIGHTING INFORMATION
(a) Provide a reflected ceiling plan and related information which
locates all Building standard and non-building standard lighting,
exit and emergency lights and related fire protection and life
safety materials.
Specify the manufacturer and model of each non-building standard
light fixture.
(b) Locate all light switches (note 3-way switches, if any) and dimmers.
4. MECHANICAL INFORMATION
(a) Identify any areas in the Demised Premises which will be occupied at
any time by more than one person per 100 square feet of rentable
area. Include the estimated occupancy density.
(b) Identify all office equipment such as telephone equipment, copiers,
computers, etc. and the heat output per hour of such office
equipment.
5. PLUMBING INFORMATION
(a) Provide the location and specify the type of sinks, dishwashers and
other appliances, private toilets or showers and associated
requirements.
6. STRUCTURAL INFORMATION
(a) Indicate the weight, description and location of exceptionally heavy
equipment such as filing cabinets, safes and large machines which
exceed 50 of live load.
(b) Indicate details of any interconnecting staircases (to be located at
locations designated by Landlord).
EXHIBIT "C"
ANNEX 11
Tenant's Plans must include, without limitation, the below noted information
in complete form.
1. ARCHITECTURAL INFORMATION
(a) Locate and identify all types of partitions.
(b) Clearly indicate all dimensions. Dimensions from the curtain wall
are to be measured from column lines, face of columns, face of core
or mutually agreed access lines.
(c) Indicate the locations and specifications for doors, door frames and
hardware; provide a keying schedule. All such hardware must conform
to the Building master key system.
(d) Indicate the locations and specifications for any paints and any
wallcoverings or other wall finish. It is Tenant's responsibility
that all finishes comply with the fire code of the City and State of
New York.
(e) Indicate the location of millwork, carpentry, etc., on the plan and
provide elevations, sections and details sufficient to clearly
describe all requirements.
(f) Indicate any requirements for mounted projection screens, overhead
security grills, etc.
(g) Provide locations and complete specifications for any floor
coverings, including the combined height of carpet and padding. It
is Tenant's responsibility that all finishes comply with fire code
of the City and State of New York.
(h) Provide support framing details for special walls and ceiling
mounted equipment.
(i) Provide a finish schedule and finish legend clearly indicating the
room number, wall finishes, floor finish and ceiling finish.
2. ELECTRICAL AND TELEPHONE INFORMATION
(a) Indicate the dimensions of wall electrical and telephone outlets.
(b) Indicate locations of and dimensions for all electrical floor
outlets and telephone floor outlets. These dimensions must be
coordinated and approved by the Base Building structural engineer.
(c) Provide systems location of special receptacles and separate
circuits for special equipment such as appliances, copiers,
computer equipment, etc.
(d) Provide details of the space requirements, room finish and
electrical and mechanical requirements for the telephone equipment
within the Demised Premises.
(e) Indicate the location of the emergency disconnect switch for any
data processing equipment.
(f) Provide total connected load on a ▇▇▇▇▇ per rentable square foot
basis.
3. LIGHTING INFORMATION
(a) Locate and identify all fixtures used, and provide specifications
for all non-building standard fixtures.
(b) Locate all switches, dimmers and other lighting control devices.
(c) Indicate the location of all exit lighting, class E life safety
systems and any special emergency lighting.
4. MECHANICAL AND PLUMBING INFORMATION
(a) Provide complete plans, details and specifications and calculations
(subject to written approval by Landlord and Landlord's engineers)
describing all HVAC, fire protection and plumbing work to be
performed. The Architectural Plan must note any coordination
required between the drawings prepared by Tenant's Architect and the
drawings prepared by the Building engineers.
(b) Provide total c.f.m. calculations for Tenant's HVAC design.
5. STRUCTURAL INFORMATION
Provide complete plans, details, specifications and calculations approved
by the Building engineers of any structural modifications required to
construct the Initial Improvements.
EXHIBIT D
INTENTIONALLY OMITTED
EXHIBIT E
NAME OFFICE ADDRESS/ TELEPHONE
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