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XXX XXXX XXXXX REALTY AND TERMINAL
COMPANY
WITH
XXXX & XXXXX, INC. AND GRAYSLER
CORPORATION
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MODIFIED AGREEMENT OF LEASE
OF GRAYBAR BUILDING
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DATED, DECEMBER 30, 1957
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AFFECTING PREMISES ON THE WESTERLY SIDE OF LEXINGTON
AVENUE, 253 FEET 4 INCHES XXXXXXXXX XX 00xx XXXXXX
================================================================================
Recorded in the office of the Register of the City of New York, New York County,
on December 31, 1957, in Liber 5024 of Conveyances, page 251.
MODIFIED AGREEMENT OF LEASE, made the 30th day of December, 1957, between
NEW YORK STATE REALTY AND TERMINAL COMPANY, a corporation of the State of
New York, having its principal office at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx xx
Xxxxxxxxx, Xxxx of New York, hereinafter called the Lessor, party of the first
part, and XXXX & XXXXX, INC., a corporation of the State of Delaware, having an
office at 000 Xxxxxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx of New York, and
GRAYSLER CORPORATION, a corporation of the State of New York, having its
principal office at 000 Xxxxxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx of New York,
hereinafter collectively called the Lessee, parties of the second part;
WHEREAS, by lease dated July 30, 1925, recorded in the office of the
Register of the County of New York on September 12, 1925, in Liber 3496 of
Conveyances, at page 183, the Lessor did lease unto Eastern Offices, Inc., and
Eastern Offices, Inc. did take and hire from the Lessor, the portion above
certain planes of that parcel of land in the Borough of Manhattan, City of New
York, situate on the westerly side of Lexington Avenue, distant 253 feet 4
inches northerly of 42nd Street, upon which the Graybar Building, hereinafter
called the Building, is now constructed, as more particularly described in said
lease, for a term to expire on November 1, 1946, with the right to two
additional terms of 21 years each, conditioned as provided in the lease, subject
to the exceptions and reservations, at the rentals and additional rentals and
upon the covenants, conditions, limitations and agreements in said lease
contained; and
WHEREAS, by agreements dated respectively October 21, 1927, June 19, 1928,
and November 2, 1938, recorded in said Register's office respectively in Liber
3672 of Conveyances, at page 388, Liber 3901 of Mortgages, at page 228, and
Liber 4278 of Conveyances, at page 217, said lease was modified in certain
respects as by reference to
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said agreements will more fully appear; and by agreement dated April 5, 1944,
and supplemental agreement dated April 12, 1944, recorded in the office of the
Register of the City of New York, in the County of New York, on May 26, 1944, in
Liber 4287 of Conveyances, at pages 208 and 195 respectively, said lease was
further modified and extended and renewed for the first renewal term of
twenty-one years to expire on October 31, 1967, as provided for in said lease
and upon the terms and conditions in said supplemental agreement contained; and
by agreement dated July 20, 1950, recorded in said Register's office on August
1, 1950, in Liber 5174 of Mortgages, at page 265, said lease was further
modified as by reference to said agreement will more fully appear; and by
Modified Agreement of Lease made as of January 1,1953, recorded in said
Register's office on October 9, 1953, in Liber 4854 of Conveyances, at page 307,
said lease was further modified and extended as by reference to said agreement
will more fully appear, said lease as modified and extended as aforesaid being
herein called the existing lease; and
WHEREAS, Xxxx & Xxxxx, Inc. and Graysler Corporation have duly acquired by
mesne assignments undivided interests of 75% and 25%, respectively, in the
existing lease; and
WHEREAS, the parties hereto desire to extend the current term of and to
modify the existing lease, as herein provided, and by this instrument to express
all the terms, rentals and additional rentals, covenants, conditions,
limitations, agreements, reservations, and exceptions in accordance with which
the premises hereinafter described shall be held by the Lessee from the Lessor
under lease, but nothing herein contained shall be deemed to constitute a
surrender of the leasehold estate granted by the existing lease; and
WHEREAS, by instrument dated December 30, 1957, The New York Central
Railroad Company has modified and
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extended the existing grant of term to the Lessor for a term ending June 30,
1976, with provision for one additional term of eleven years and seven months
ending January 31, 1988, and thereafter for two additional terms of twenty-one
years each, in the portion of the parcel of land hereinafter described which is
not excepted from this lease.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
That the Lessor has agreed to let and hereby does let unto the Lessee, and
the Lessee has agreed to take and hereby does take and hire from the Lessor, for
the term, at the rentals and additional rentals, and upon the covenants,
conditions, limitations and agreements herein contained and with the exceptions
and reservations herein set forth, in the following respective undivided
interests, to wit, an undivided 75% interest as to Xxxx & Xxxxx, Inc. and an
undivided 25% interest as to Graysler Corporation, all that parcel of land
(including the Building thereon, and such fixtures and appurtenances in the
Building in which the Lessor has any title or interest) in the Borough of
Manhattan, City of New York, bounded and described as follows:
BEGINNING at a point in the westerly line of Lexington Avenue
distant 253 feet 4 inches northerly of the corner formed by the
intersection of the northerly line of 00xx Xxxxxx with the westerly
line of Lexington Avenue, and running thence westerly parallel with
the northerly line of 00xx Xxxxxx 275 feet, more or less, to the
easterly line of Xxxxx Place as it formerly existed (now discontinued
and closed); thence northerly parallel with the westerly line of
Lexington Avenue, and along the easterly line of Xxxxx Place as it
formerly existed (now discontinued and closed), 248 feet 4 1/2 inches;
thence easterly parallel with the northerly line of 00xx Xxxxxx 275
feet, more or less, to the westerly line of Lexington Avenue; thence
southerly
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along the westerly line of Xxxxxxxxx Xxxxxx 000 feet 4 1/2 inches,
more or less, to the point or place of beginning.
Excepting, however, from the above described parcel of land, all the
following portions thereof (the elevations hereinafter referred to and shown on
the plot plans hereto attached have reference to the datum plane of The New York
Central Railroad Company which takes for its elevation 0 feet 0 inches mean
highwater xxxx of the East River at the foot of Xxxx 00xx Xxxxxx):
(a) ALL that portion of the parcel of land above described lying below an
inclined plane drawn at elevation 42.02 feet along the easterly side, and
elevation 44.04 feet along the westerly side, and intersecting the easterly,
westerly, northerly and southerly bounds of all that portion of the parcel of
land above described, bounded and described as follows:
Beginning at a point in the westerly line of Lexington Avenue
distant 315 feet 3 1/2 inches northerly of the corner formed by the
intersection of the northerly line of 00xx Xxxxxx with the westerly
line of Lexington Avenue; thence westerly and parallel with the
northerly line of 00xx Xxxxxx 172 feet 0 1/2 of an inch; thence
northerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 00
feet 2 inches; thence westerly and parallel with the northerly line of
00xx Xxxxxx 30 feet 7 inches; thence northerly and parallel with the
westerly line of Xxxxxxxxx Xxxxxx 000 feet 3 inches; thence easterly
and parallel with the northerly line of 00xx Xxxxxx 202 feet 7 1/2
inches to the westerly line of Lexington Avenue; thence southerly
along the westerly line of Lexington Avenue 186 feet 5 inches to the
point or place of beginning.
Said excepted portion of said parcel of land is shown as (a) on
the plot plan hereto attached, dated December 10, 1957, entitled "Plot
Plan No. 1 Showing Limits
5
and Planes", and identified by the signature of X. X. Xxxxxxx, Chief
Engineer of The New York Central Railroad Company.
There is demised to the Lessee, however, the right to construct and
maintain a pipe space or gallery of an area of approximately 970 square feet,
extending below the plane of sub-division (a) above described and along the
easterly side thereof.
(b) Also, all that portion of the parcel of land above described, lying
below an horizontal plane drawn at elevation 53.33 feet, and intersecting the
easterly, westerly, northerly and southerly bounds of all that portion of the
parcel of land above described, bounded and described as follows:
Beginning at a point distant 355 feet 8 1/2 inches north of the
northerly line of 00xx Xxxxxx and distant 202 feet 7 1/2 inches west
of the westerly line of Lexington Avenue; thence westerly and parallel
with the northerly line of 00xx Xxxxxx 6 feet 6 inches; thence
northerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 00
feet 9 inches; thence westerly and parallel with the northerly line of
00xx Xxxxxx 37 feet 6 inches; thence southerly and parallel with the
westerly line of Xxxxxxxxx Xxxxxx 00 feet 3 inches; thence westerly
and parallel with the northerly line of 00xx Xxxxxx 28 feet 4 1/2
inches; thence northerly and parallel with the westerly line of
Xxxxxxxxx Xxxxxx 000 feet 6 inches; thence easterly and parallel with
the northerly line of 00xx Xxxxxx 72 feet 4 1/2 inches; thence
southerly and parallel with the westerly line of Lexington Avenue 146
feet 0 inches, to the point or place of beginning.
Said excepted portion of said parcel of land is shown as (b) on
Plot Plan No. 1 above referred to, and hereto attached.
6
(b-1) Also, all that portion of the parcel of land above described, lying
below an horizontal plane drawn at elevation 55.42 feet, and intersecting the
easterly, westerly, northerly and southerly bounds of all that portion of the
parcel of land above described, bounded and described as follows:
Beginning at a point distant 315 feet 3 1/2 inches north of the
northerly line of 00xx Xxxxxx and 246 feet 7 1/2 inches west of the
westerly line of Lexington Avenue; thence westerly and parallel with
the northerly line of 00xx Xxxxxx 28 feet 4 1/2 inches; thence
northerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 00
feet 11 inches; thence easterly and parallel with the northerly line
of 00xx Xxxxxx 28 feet 4 1/2 inches; thence southerly and parallel
with the westerly line of Xxxxxxxxx Xxxxxx 00 feet 11 inches to the
point or place of beginning.
Said excepted portion of said parcel of land is shown as (b-1) on
Plot Plan No. 1 above referred to, and hereto attached.
(b-2) Also, all that portion of the parcel of land above described, lying
below an horizontal plane drawn at elevation 56.70 feet and intersecting the
easterly, westerly, northerly and southerly bounds of all that portion of the
parcel of land above described, bounded and described as follows:
Beginning at a point distant 315 feet 3 1/2 inches north of the
northerly line of 00xx Xxxxxx and 202 feet 7 1/2 inches west of the
westerly line of Lexington Avenue; thence westerly and parallel with
the northerly line of 00xx Xxxxxx 44 feet; thence northerly and
parallel with the westerly line of Xxxxxxxxx Xxxxxx 00 feet 2 inches;
thence easterly and parallel with the northerly line of 00xx Xxxxxx 37
feet 6 inches; thence southerly and parallel with the westerly line of
Xxxxxxxxx Xxxxxx 00 feet 9 inches; thence easterly and
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parallel with the northerly line of 00xx Xxxxxx 6 feet 6 inches;
thence southerly and parallel with the westerly line of Xxxxxxxxx
Xxxxxx 00 feet 5 inches, to the point or place of beginning.
Said excepted portion of said parcel of land is shown as (b-2) on
Plot Plan No. 1 above referred to, and hereto attached.
(b-3) Also, all that portion of the parcel of land above described, lying
below an horizontal plane drawn at elevation 56.63 feet and intersecting the
easterly, westerly, northerly and southerly bounds of all that portion of the
parcel of land above described, bounded and described as follows:
Beginning at a point distant 315 feet 3 1/2 inches north of the
northerly line of 00xx Xxxxxx and 172 feet 0 1/2 of an inch west of
the westerly line of Lexington Avenue; thence westerly and parallel
with the northerly line of 00xx Xxxxxx 30 feet 7 inches; thence
northerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 00
feet 2 inches; thence easterly and parallel with the northerly line of
00xx Xxxxxx 30 feet 7 inches; thence southerly and parallel with the
westerly line of Xxxxxxxxx Xxxxxx 00 feet 2 inches to the point or
place of beginning.
Said excepted portion of said parcel of land is shown as (b-3) on
Plot Plan No. 1 above referred to, and hereto attached.
(c) Also, all that portion of the parcel of land above described, lying
below an horizontal plane drawn at elevation 77.75 feet and intersecting the
easterly, westerly, northerly and southerly bounds of all that portion of the
parcel of land above described, bounded and described as follows:
Beginning at a point in the westerly line of Lexington Avenue
distant 253 feet 4 inches north of the
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corner formed by the intersection of the northerly line of 00xx Xxxxxx
with the westerly line of Lexington Avenue; thence westerly and
parallel with the northerly line of 00xx Xxxxxx 93 feet 10 3/4 inches;
thence northerly and parallel with the westerly line of Xxxxxxxxx
Xxxxxx 00 feet 3 inches; thence westerly and parallel with the
northerly line of 00xx Xxxxxx 181 feet 1 1/4 inches; thence northerly
and parallel with the westerly line of Xxxxxxxxx Xxxxxx 00 feet 8 1/2
inches; thence easterly and parallel with the northerly line of 00xx
Xxxxxx 275 feet to the westerly line of Lexington Avenue; thence
southerly along the westerly line of Xxxxxxxxx Xxxxxx 00 feet 11 1/2
inches to the point or place of beginning.
Said excepted portion of said parcel of land is shown as (c) on
Plot Plan No. 1 above referred to, and hereto attached.
There is also excepted under sub-division (c) above, space used for a
stairway to the Subway station as provided for in Agreement dated January 20th,
1915, between the New York State Realty and Terminal Company, The New York
Central Railroad Company, The New York, New Haven and Hartford Railroad Company
and The City of New York, acting by the Public Service Commission for the First
District, the said stairway being known as Stairway No. 4 in said agreement,
which stairway is constructed as provided in said agreement and the use thereof
is subject to the provisions of said agreement.
There is, however, demised to the Lessee the right to maintain as now
constructed, distributing girders and passage for fire stairs above the ceiling
of the passageway leading from Lexington Avenue to the Grand Central Terminal
building extending below the plane of sub-division (c) above described and also
the right to construct and maintain a pipe space or gallery of an area of
approximately 184 square feet under the passageway floor and
9
along the easterly side of parcel (c), and also the right to maintain and renew
the existing pipes and ducts above the ceiling of said passageway.
(c-1) Also, all that portion of the parcel of land above described, lying
below an horizontal plane drawn at elevation 67.83 feet and intersecting the
easterly, westerly, northerly and southerly bounds of all that portion of the
parcel of land above described, bounded and described as follows:
Beginning at a point distant 253 feet 4 inches north of the
northerly line of 00xx Xxxxxx and distant 107 feet 0 3/4 of an inch
west of the westerly line of Lexington Avenue; thence westerly and
parallel with the northerly line of 00xx Xxxxxx 167 feet 11 1/4
inches; thence northerly and parallel with the westerly line of
Xxxxxxxxx Xxxxxx 00 feet 3 inches; thence easterly and parallel with
the northerly line of 00xx Xxxxxx 181 feet 1 1/4 inches; thence
southerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 0
feet 5 1/2 inches; thence westerly and parallel with the northerly
line of 00xx Xxxxxx 13 feet 2 inches; thence southerly and parallel
with the westerly line of Xxxxxxxxx Xxxxxx 00 feet 9 1/2 inches to the
point or place of beginning.
Said excepted portion of said parcel of land is shown as (c-1) on
Plot Plan No. 1 above referred to and hereto attached.
There is, however, demised to the Lessee the right to maintain and renew
the existing pipes and ducts located above the ceiling of the passageway leading
from Lexington Avenue to the Grand Central Terminal building extending below the
plane of sub-division (c-1) above described, and also the right to maintain as
now constructed the fire stairs extending into the easterly side of parcel (c-1)
and leading to the passage for fire stairs above the ceiling of said passageway.
10
(d) Also, all that portion of the parcel of land above described, lying
below an horizontal plane drawn at elevation 42.54 feet and intersecting the
easterly, westerly, northerly and southerly bounds of all that portion of the
parcel of land above described, bounded and described as follows:
Beginning at a point distant 253 feet 4 inches north of the
northerly line of 00xx Xxxxxx and distant 93 feet 10 3/4 inches west
of the westerly line of Lexington Avenue; thence westerly and parallel
with the northerly line of 00xx Xxxxxx 13 feet 2 inches; thence
northerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 0
feet 10 inches; thence easterly and parallel with the northerly line
of 00xx Xxxxxx 7 feet 8 inches; thence northerly and parallel with the
westerly line of Xxxxxxxxx Xxxxxx 00 feet 11 1/2 inches; thence
easterly and parallel with the northerly line of 00xx Xxxxxx 5 feet 6
inches; thence southerly and parallel with the westerly line of
Xxxxxxxxx Xxxxxx 00 feet 9 1/2 inches to the point or place of
beginning.
Said excepted portion of said parcel of land is shown as (d) on
Plot Plan No. 1 above referred to, and hereto attached.
(d-1) Also, all that portion of the parcel of land above described, lying
below an inclined plane drawn at elevation 42.54 feet along the southerly side
and elevation 47.52 feet along the northerly side and intersecting the easterly,
westerly, northerly and southerly bounds of all that portion of the parcel of
land above described, bounded and described as follows:
Beginning at a point distant 260 feet 2 inches north of the
northerly line of 00xx Xxxxxx and distant 99 feet 4 3/4 inches west of
the westerly line of Lexington Avenue; thence westerly and parallel
with the northerly line of 00xx Xxxxxx 7 feet 8 inches; thence
northerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 0
feet 6 1/2 inches; thence easterly and
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parallel with the northerly line of 00xx Xxxxxx 7 feet 8 inches; then
southerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 0
feet 6 1/2 inches to the point or place of beginning.
Said excepted portion of said parcel of land is shown as (d-1) on
Plot Plan No. 1 above referred to, and hereto attached.
(d-2) Also, all that portion of the parcel of land above described, lying
below an horizontal plane drawn at elevation 47.52 feet and intersecting the
easterly, westerly, northerly and southerly bounds of all that portion of the
parcel of land above described, bounded and described as follows:
Beginning at a point distant 265 feet 8 1/2 inches north of the
northerly line of 00xx Xxxxxx and distant 99 feet 4 3/4 inches west of
the westerly line of Lexington Avenue; thence westerly and parallel
with the northerly line of 00xx Xxxxxx 7 feet 8 inches; thence
northerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 0
feet 5 inches; thence easterly and parallel with the northerly line of
00xx Xxxxxx 7 feet 8 inches; thence southerly and parallel with the
westerly line of Xxxxxxxxx Xxxxxx 0 feet 5 inches to the point or
place of beginning.
Said excepted portion of said parcel of land is shown as (d-2) on
Plot Plan No. 1 above referred to, and hereto attached.
(e) Also, all that portion of the parcel of land above described, lying
between a lower horizontal plane drawn at elevation 67.83 feet and an upper
horizontal plane drawn at elevation 79.67 feet, and intersecting the easterly,
westerly, northerly and southerly bounds of all that portion of the parcel of
land above described, bounded and described as follows:
Beginning at a point distant 253 feet 4 inches north of the
northerly line of 00xx Xxxxxx and distant
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211 feet 7 inches west of the westerly line of Lexington Avenue;
thence westerly and parallel with the northerly line of 00xx Xxxxxx 47
feet 2 1/2 inches; thence northerly and parallel with the westerly
line of Xxxxxxxxx Xxxxxx 00 feet 6 inches; thence easterly and
parallel with the northerly line of 00xx Xxxxxx 21 feet 1 1/2 inches;
thence northerly and parallel with the westerly line of Xxxxxxxxx
Xxxxxx 0 feet 3 inches; thence easterly and parallel with the
northerly line of 00xx Xxxxxx 26 feet 1 inch; thence southerly and
parallel with the westerly line of Xxxxxxxxx Xxxxxx 00 feet 9 inches
to the point or place of beginning. Said excepted portion of said
parcel of land is shown as (e) on plot plan hereto attached, dated
December 10, 1957, entitled "Plot Plan No. 2 Showing Limits and
Planes", and identified by the signature of X. X. Xxxxxxx, Chief
Engineer of The New York Central Railroad Company.
There is, however, demised to the Lessee the right to maintain and renew
the distributing girders and existing pipes and ducts located in said excepted
space.
(f) Also, all that portion of the parcel of land above described, lying
between a lower horizontal plane drawn at elevation 77.75 feet and an upper
horizontal plane drawn at elevation 124 feet, and intersecting the easterly,
westerly, northerly and southerly bounds of all that portion of the parcel of
land above described, bounded and described as follows:
Beginning at a point distant 253 feet 4 inches north of the
northerly line of 00xx Xxxxxx and distant 70 feet 1 1/4 inches west of
the westerly line of Lexington Avenue; thence westerly and parallel
with the northerly line of 00xx Xxxxxx 23 feet 7 inches; thence
northerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 00
feet 6 1/2 inches; thence easterly and parallel
13
with the northerly line of 00xx Xxxxxx 23 feet 7 inches; thence
southerly and parallel with the westerly line of Xxxxxxxxx Xxxxxx 00
feet 6 1/2 inches to the point or place of beginning.
Said excepted portion of said parcel of land is shown as (f) on
Plot Plan No. 2 above referred to, and hereto attached.
The elevations and dimensions of the excepted spaces may vary somewhat in
the Building as actually constructed, from the elevations and dimensions above
set forth in subdivisions (a) to (f) both inclusive hereof, and it is understood
and agreed that said elevations and dimensions shall be subject to such slight
variations therein as may exist in connection with the Building as constructed,
and that any existing steel or other structural work projecting into said
excepted spaces shall remain, together with any necessary alterations thereof or
substitutions therefor which may be approved by the Lessor.
Reserving, also, for the exclusive use of the Lessor, its successors and
assigns, and the occupants of the excepted spaces, one elevator shaft having an
area of approximately 150 square feet at the approximate location shown on Plot
Plan No. 1 above referred to and hereto attached, extending from the Express
Level of the Grand Central Terminal to elevation 59.50 feet, with the right to
the Lessor, its successors and assigns, to attach the supports for the machinery
and guides of said elevator to the building steel and to operate the elevator
located in said shaft.
Reserving also to the Lessor, its successors and assigns, and the occupants
of the excepted spaces, the exclusive use of one air intake duct or shaft having
an approximate area of 150 square feet, and extending from the Suburban Level of
the Grand Central Terminal to the elevation 101.33 feet, the elevation of the
ceiling of the third floor of the Building, also one ventilating shaft having an
area of 60 square feet and five ventilating shafts, each having an area of 15
14
square feet, extending from the Suburban Level of the Grand Central Terminal to
the roof of the Building, and two ventilating shafts each having an area of 12
square feet, extending from said Suburban Level to the roof of the Courts, all
at the approximate locations shown on Plot Plan No. 2 above referred to and
hereto attached, together with the right to the Lessor, its sucessors and
assigns, to construct and maintain penthouses and motors and fans upon the roof
of said Building at the locations of said respective ventilating shafts, and to
operate said motors and fans.
The Lessor, its successors and assigns, and the occupants of the excepted
spaces, shall have the right to maintain as now constructed the twelve openings
with ventilating louvres, extending up to elevation 124 feet, in the southerly
wall of the Building on the southerly side of parcels (c) and (f) above, and
also the right to construct and maintain one opening with ventilating louvres in
the southerly wall of the Building on the southerly side of parcel (c-1) above,
at about elevation 52.89 feet and distant to center approximately 109.8 feet
west of the westerly line of Lexington Avenue.
The Lessor, its successors and assigns, and the occupants of the excepted
spaces, shall also have the right to attach ducts, pipes, conduits, overhead
contact rails, mail conveyors and other facilities and their supports to the
under side of the building girders, floor beams and hung ceilings over said
excepted portions of said parcel of land, and to repair, renew and maintain said
ducts, pipes, conduits, overhead contact rails, mail conveyors and other
facilities and their supports.
Subject, however, to such variations as may appear upon survey by City
Surveyor, and to the covenants against nuisances, if any, of record affecting
said premises, and to the Zoning and Building ordinances and regulations of the
City of New York, and to existing subtenancies granted by the Lessee.
Subject also, however, to the right of the Lessor, its successors and
assigns, to maintain, repair and renew the columns
15
supporting the viaduct and railroad structures adjoining the parcel of land
above described on the west, at the locations shown on Plot Plan hereto
attached, dated December 10, 1957, entitled "Plot Plan No. 3, Showing Viaduct
Column Locations," and identified by the signature of X. X. Xxxxxxx, Chief
Engineer of The New York Central Railroad Company, and also any other columns
that may at any time be constructed in renewal or substitution, of said columns
for the purpose of supporting said viaduct or the overhead roadway, at any time
constructed in or over said westerly adjoining premises.
There is also demised to the Lessee during the term of this lease and any
renewal or renewals thereof, if any there be, an easement for the support of the
Building (or any building or buildings erected in the place thereof by the
Lessee pursuant to the provisions of this lease), upon the columns and
foundations thereof which have been constructed within the excepted spaces
referred to above, and the Lessor does hereby covenant and agree for itself, and
its successors and assigns, at all times during the term of this lease and any
renewal or renewals thereof, if any there be, to maintain said columns and the
foundations thereof within the excepted spaces (including any columns erected in
substitution for or renewal of any of said columns) of unimpaired strength and
in good repair.
There is also demised to the Lessee during the term of this lease and any
renewal or renewals thereof, if any there be, an easement of light and air over
the premises adjoining on the north created by deed made by The New York Central
Railroad Company to United States of America, dated December 28th, 1932, as
modified by agreement between The Xxx Xxxx Xxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxx
Xxxxxx of America and Eastern Offices, Inc., dated June 9th, 1936, and the right
reserved by said deed to support the northerly three-story portion of the
Building upon the building steel and foundations of the building upon the
premises adjoining on the north the parcel of land on which the (Graybar)
Building now stands.
16
Subject, however, to the height restriction affecting the northerly 40 feet
of the parcel of land above described contained in said deed made by The New
York Central Railroad Company to United States of America, dated December 28th,
1932, and the agreement permitting encroachments contained in said deed as
modified by agreement between The Xxx Xxxx Xxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxx
Xxxxxx of America and Eastern Offices, Inc., dated March 17th, 1938.
There is demised to the Lessee during the term of this lease and any
renewal or renewals thereof an easement to install, maintain and renew such
mains, pipes, supports, connections, meters and other facilities as may be
reasonably appropriate in order for the Lessee, or anyone claiming under or
through the Lessee, to obtain from the public utility company furnishing such
services in the Borough of Manhattan, City of New York, all steam for any use in
the Building and for the discharge of any condensate resulting therefrom, such
steam line to be installed at the cost and expense of the Lessee from a point of
connection in the steam meter room located in the subsurface of the driveway
south of the demised premises, where the existing 20 inch diameter steam line of
Consolidated Edison Company of New York, Inc. enters from Lexington Avenue,
located approximately 18 feet south of the southeast corner of the Building and
approximately at elevation 25 feet, and extending northerly from the above
described point of connection to the southeast corner of the Building and rising
thence in the existing masonry shaft within the southeast corner of the Building
through the excepted space to elevation 78.50 feet, and thence northerly through
the excepted space a distance of 5 feet, thence westerly a distance of 5 feet,
thence southerly through the exterior wall of the Building and turning westerly
on said exterior wall for a distance of 188 feet, and thence turning northerly
through the exterior wall of the Building at elevation of 77.50 feet, thence
northerly
17
through the demised premises 22 feet to the southerly wall of the excepted
space, and thence 40 feet to the demised premises. The condensate drip-tank and
pump or ejector at the meter equipment may be installed in the steam meter room.
The condensate line shall adjoin the steam line from the steam meter to the
aforementioned point at elevation approximately 78.50 feet and thence extend
northerly across the excepted space for a distance approximately 62 feet. Such
steam line and auxiliary equipment shall be installed in accordance with plans
and specifications which shall be submitted to the Chief Engineer of the Lessor
for approval, which approval the Lessor shall not unreasonably withhold or
delay.
As to the parcels of land excepted under sub-divisions (c) and (c-1) above,
a stairway to the Subway station, and a passageway (having a floor elevation of
43.20 feet to 46.31 feet and a ceiling elevation of 77.75 feet) extending from
Lexington Avenue to the Grand Central Terminal building, have been constructed
in a portion thereof at the locations shown on Plot Plan No. 1 hereto attached,
and there is hereby demised to the Lessee the right for itself, its officers,
agents and tenants to use for the purpose of passage on foot between Lexington
Avenue, the Building, the stairway to the Subway station, and the Grand Central
Terminal building, during the continuance of this lease and any renewals
thereof, if any there be, the said passageway constructed as aforesaid within a
portion of the space excepted under said sub-divisions (c) and (c-l); said right
of use shall, however, be subject to the use of said passageway by the Lessor,
The New York Central Railroad Company, The New York and Harlem Railroad Company
and The New York, New Haven and Hartford Railroad Company (hereinafter called
the Railroad Companies), their and each of their officers, agents, passengers,
successors and assigns, and by such other parties as shall be permitted or
granted the right by the Lessor or the Railroad Companies or any of them, to
make use of the same; and said right of use shall also be subject to such
reasonable
18
rules and regulations as may from time to time be established by the Terminal
Manager of the Grand Central Terminal in respect of the use of said passageway
by the Lessee, its officers, agents and tenants, with the view of avoiding
congestion therein and in the Grand Central Terminal building.
In order to provide for the proper care and maintenance of said passageway,
the Lessor shall arrange for the maintenance, lighting, cleaning and policing of
said passageway by means of the Grand Central Terminal forces and facilities,
and the Lessee shall pay to The New York Central Railroad Company promptly upon
rendition of bills therefor, one-half of the expense of such maintaining,
lighting, cleaning and policing, provided that any change made in the
decorations, structure or finish of said passageway, except as to the south side
of said passageway, shall be made only in accordance with plans approved by the
Lessor, the Lessee and the Railroad Companies; and the Lessee shall not be
charged for any part of the cost of maintaining, lighting or cleaning any store,
shop, theatre, locker, booth or advertising display which the Lessor or the
Railroad Companies may install in said passageway as provided in the next
paragraph.
Said passageway shall be used, however, only for station purposes in
connection with the Grand Central Terminal building and for the purpose of
entrance and exit to and from Lexington Avenue, the Building, the stairway to
the Subway station, and the Grand Central Terminal building; provided, however,
that the Lessor and the Railroad Companies shall have the right exclusively to
use and permit others to use the south side of said passageway out to the
northerly face of the columns (other than the portions thereof presently used
for access to and from the Subway station and to and from the stairway leading
to the lower station level and for the emergency fire stairway) for store, shop,
theatre or other purposes with entrances opening on said passageway, and with
the right to use said passageway
19
for access to the premises used for such purposes and to premises southerly
thereof, also the right to install, maintain and use parcel lockers, telephone
booths and advertising displays along the southerly wall of said passageway and
along the northerly wall west of the westerly entrance from said passageway to
the Building, and the Lessor and the Railroad Companies shall have the right to
make such alterations or changes as they may desire, but at their sole cost and
expense, in the south side of said passageway and the south wall of the Building
for the purposes aforesaid; and provided, further, that the Lessee shall have
the right to construct, maintain and use under and subject to the provisions of
this lease, but at its sole cost and expense, doorways and display windows in
the northerly wall of said passageway, east of the entrances from said
passageway to the Building, for use in connection with stores or other purposes
in the Building, and with the right to use said passageway for access to the
portions of the Building used for such stores or other purposes.
The Lessor shall have the right to modify or alter said passageway
structurally so as to provide for access therefrom to train platforms
constructed or which may be constructed within the excepted spaces, and in
connection therewith to take and use or permit to be used such portion of the
demised premises (other than the portions of the demised premises used for
elevator purposes and the two entrances from said passageway to the lobby of the
Building) as shall be reasonably necessary for such purpose, provided that the
Lessor shall, at its sole cost and expense, make such changes in the Building,
in accordance with plans approved by the Lessor, as shall be suitable for such
purpose, and the Lessor shall not give any such approval without the prior
written approval of the Lessee, and provided further, that the Lessor shall pay
to the Lessee the then rental value of the portion of the demised premises so
taken and used, or permitted to be used, for such purpose (including an
appropriate allowance in respect of the Lessee's renewal privileges hereunder),
and the portion of
20
the demised premises so taken and used shall thenceforth be deemed excepted from
this lease, and in case the Lessor and the Lessee shall be unable to agree upon
such rental value, then such value shall be determined by three arbitrators
appointed as provided in Paragraph Fourteenth hereof, and the award of said
arbitrators or of a majority of them shall be binding and conclusive upon the
parties hereto. The expense of any such arbitration shall be borne as provided
in said Paragraph.
The Lessee agrees that, so long as space in the Building shall continue to
be used by the Post Office Department, at the approximate location of the space
presently so used, the Lessee shall operate and maintain one elevator extending
into the excepted space from said Post Office space at the location shown on
Plot Plan No. 2 hereto attached.
In respect of the parcel of land about 45 feet in width adjoining on the
south the parcel of land above described, it is understood that title thereto is
vested in The New York Central Railroad Company, which is using the surface and
sub-surface of said parcel for railroad and terminal purposes, and that said
Railroad Company may construct or permit the construction of such structures
therein and thereover as may at any time be deemed by it advisable, extending
all or a portion of the distance from Lexington Avenue to former Xxxxx Place,
but the Railroad Company shall not construct, or permit to be constructed, any
structures therein or thereover above elevation 80 feet, which is below the
windows in the second floor of the Building (the intent of this proviso being to
protect the light and air to the Building above said elevation), and it is
further understood that the Lessee shall have the right to maintain the existing
standpipes and the existing emergency stairway extending from the third floor of
the Building at a point about 100 feet 5 1/2 inches westerly from the
southeasterly corner of said Building to said parcel of land adjoining on the
south, and which standpipes
21
and stairway shall not, as a result of any such construction or other action of
said Railroad Company, or anyone claiming by, through or under said Railroad
Company, become or be declared in violation of any applicable ordinances and/or
other legal requirements. If as the result of any such construction or other
action of said Railroad Company, or anyone claiming by, through or under said
Railroad Company, the applicable municipal or other ordinances or legal
requirements shall require alterations or replacements to said standpipes,
stairway, or the Building or its facilities, the Lessor will cause such
alterations or replacements to be made in a manner which complies with all such
municipal and/or other ordinances and legal requirements and in accordance with
plans and specifications submitted to and approved by the Lessee and without
cost or expense to the Lessee. The provisions of this paragraph shall pertain to
the standpipe connection in the westerly wall of the Building as well as the
standpipe connections in the southerly wall of the Building.
In respect of the parcel of land adjoining on the west the parcel of land
above described, constituting a portion of the bed of former Xxxxx Place, now
discontinued and closed, it is understood that title thereto is vested in The
New York Central Railroad Company, which is using the surface and sub-surface of
said parcel for railroad and terminal purposes, and that said Railroad Company
may use or permit the use by others of the surface of said parcel of land for
the purposes of passage, and may impose such restrictions as it may from time to
time deem advisable upon the use for the purpose of passage on the surface of
said parcel by the Lessee, use of the surface of which parcel for the purposes
of passage on foot and with vehicles, subject to the provisions of this
paragraph, is hereby demised to the Lessee, subject also to use of said parcel
for the overhead roadway or driveway constructed in and over a portion or
portions thereof and to
22
easement of passage for the public on foot and with vehicles over the surface of
said roadway or driveway, granted by The New York Central Railroad Company to
The City of New York by indenture dated April l1th, 1924, but said Railroad
Company shall not construct, or permit to be constructed, any structures therein
or thereover above the elevation of the highest member of said overhead roadway
or driveway so constructed (the intent of this proviso being to protect the
light and air to the Building above said elevation).
For the term of eighteen years, five months and two days to commence on
December 30, 1957, and to end May 31, 1976; at the annual rental or sum of Three
Hundred Ninety Thousand Dollars ($390,000.00) lawful money of the United States,
payable in equal monthly installments of Thirty-two Thousand Five Hundred
Dollars ($32,500.00) in advance on the first day of January, 1958, and on the
first day of each and every month in each and every year thereafter during the
term of this lease, and at the additional rentals hereinafter set forth, except
that the Ground Rental for the period from the date of commencement of the term
to and including December 31, 1957, has been paid by the Lessee prior to the
execution and delivery of this lease. The $390,000 annual rental provided for in
this paragraph is herein referred to as the Ground Rental.
Subject, however, to the exclusive right of the Lessor and of the Railroad
Companies and each of them, their and each of their successors and assigns,
grantees and licensees, to occupy and use (but not to the impairment of the
easement of support of the Building and subject to the use by the Lessee as
above provided of the passageway constructed in a portion of the space excepted
under subdivisions (c) and (c-1) above) all those portions of the parcel of land
above described excepted from this lease under subdivisions (a) to (f), both
inclusive above, for the construction and maintenance of railroad, station and
terminal structures and improvements, and of such other
23
structures, equipments and improvements as the Lessor and the Railroad
Companies, their or any of their successors or assigns, may from time to time,
or at any time or times hereafter deem advisable to construct or maintain
therein, and for the operation therein and thereunder of the respective
railroads operated by the Railroad Companies, their and each of their successors
and assigns, and of such other companies as shall lawfully secure the right to
use or operate the respective railroads operated by the Railroad Companies, or
any of them, and for such other uses and purposes (exclusive of such other uses
and purposes as will injuriously affect the use and enjoyment of the demised
premises by the Lessee) as the Lessor and the Railroad Companies, or any of
them, their or any of their successors and assigns, may from time to time or at
any time or times hereafter deem advisable to occupy or use said excepted
portions or to permit or to grant the right to others to occupy or use said
excepted portions.
And it is also hereby covenanted and agreed between the parties hereto as
follows, each party covenanting for itself, its successors and assigns:
FIRST: That the Lessee shall well and punctually pay to the Lessor at the
Grand Central Terminal, Borough of Manhattan, City of New York, the Ground
Rental above provided on the days the same is payable, without diminution,
deduction or delay, and shall also as additional rental hereunder pay to the
Lessor from time to time as such water rents and sewer rents shall become
payable, all sums that may during the term of this lease be assessed, imposed or
charged upon the demised premises, or any part thereof, for Croton or other
water rents and sewer rents, whether by meter or otherwise, exclusive, however,
of the sums, if any, imposed thereon for water or sewer used by the Lessor or
the Railroad Companies in the excepted space.
That the Lessee shall also as an additional rental hereunder during each
and every year of the term of this lease,
24
pay to the Lessor within thirty days after the taxes in any such year shall be
payable (in case the taxes shall be payable in installments, each installment
shall be deemed payable hereunder on the day that such installment becomes a
lien upon the parcel of land above described), a sum of lawful money of the
United States equal to eighty (80%) per centum of the amount of the taxes,
ordinary and extraordinary, for such year that may be taxed, charged, imposed or
assessed upon the parcel of land above described (including the portions thereof
excepted as aforesaid), or upon the Lessor or the Railroad Companies, or any of
them, their or any of their successors and assigns, on account of the value of
said parcel of land as if wholly unimproved; and also such additional sum of
lawful money of the United States as will equal the entire taxes, ordinary and
extraordinary, for such year, taxed, charged, imposed or assessed upon the
parcel of land above described (including the portions thereof excepted as
aforesaid) on account of the value of the improvements constructed thereon
(exclusive of the value of the railroad structures, as hereinafter defined,
within the spaces excepted under sub-divisions (a) to (f), both inclusive
above), the value of the improvements being ascertained by deducting from the
assessed value of the land with the improvements thereon, the assessed value of
the land, if wholly unimproved. In case in any year the assessment for taxes
upon the parcel of land above described on account of the value of the
improvements constructed thereon shall include without separation, the value of
the railroad structures constructed in the portion of the parcel of land above
described excepted from this lease under subdivisions (a) to (f), both inclusive
above, then in arriving at the amount of the taxes on account of improvements
payable by the Lessee hereunder in any such year, a proper deduction shall be
made from the amount of taxes assessed upon the parcel of land above described
on account of the value of the improvements constructed
25
thereon, based upon the ratio that the cost of the railroad structures
constructed in the portion of the parcel of land described in sub-divisions (a)
to (f), both inclusive above, bears to the cost of all the structures
constructed upon said parcel of land; in arriving at such deduction, however,
the foundations, columns, bracings and portions of the building constructed
below the planes shown on the Plot Plans above referred to and hereto attached,
and the finish of one-half of the passageway included in the space excepted
under sub-divisions (c) and (c-1) above, other than the finish of the south side
of said passageway, shall be considered as building structures and not as
railroad structures. In such event the Lessor shall furnish the Lessee with a
statement as to the cost of the railroad structures and will otherwise cooperate
with the Lessee and the arbitrators in determining the relative costs of the
railroad and building structures.
With respect to the taxes for the year 1957-1958 there shall be payable by
the Lessee the taxes (upon the basis above provided) for the portion of the year
subsequent to January 1, 1958, and with respect to the taxes for the last year
of the term of this lease, or in case of renewal, of the last year of such
renewal term, there shall be payable by the Lessee hereunder the proportionate
part of such last year's taxes only to December 31st. The tax year under this
paragraph shall be deemed to commence on July first.
In case, however, at any time or times daring the term of this lease, or
any renewal or renewals thereof, if any there be, the taxes upon the parcel of
land above described considered as unimproved, shall by reason of the use of a
portion thereof for railroad purposes, be assessed at a different rate, in a
different manner or upon a different basis of assessment than real estate
generally in the City of New York, and in case by reason thereof the taxes so
assessed shall be greater or less than if assessed at the same rate, in the same
manner and upon the same basis of assessment as real estate generally in said
City, then there shall be
26
added to or deducted from said taxes, as the case may be, in arriving at the
portion of said taxes payable by the Lessee hereunder, such sum as shall be
equal to the decrease or increase in such taxes due to such different rate,
different manner or different basis of assessment.
In case also, at any time or times during the term of this lease, or any
renewal or renewals thereof, if any there be, the law with respect to the method
of assessing taxes shall be changed so as to exclude from the assessment the
value or some portion of the value of the improvements erected upon lands, and
by reason of such change in the method of assessment the amount of the taxes
assessed upon said parcel of land above described, exclusive of improvements,
shall be increased, then an adjustment shall be had between the parties hereto
as to the amount of the taxes payable by the parties hereto hereunder
respectively subsequent to such time, to the end that the relative proportion of
the entire taxes upon said parcel of land (both land and improvements) payable
by the parties hereto hereunder prior to such time may be preserved.
No portion of the taxes upon the franchises, business or income of the
Lessor or of the occupants of the excepted spaces, or their respective
successors and assigns, shall be payable by the Lessee hereunder, and no portion
of the taxes upon the franchises, business or income of the Lessee, its
successors or assigns, shall be payable by the Lessor hereunder.
In case any disagreement shall arise between the parties hereto as to the
amount of the taxes payable by the Lessee hereunder, the matter so in
disagreement shall be submitted for determination to three arbitrators appointed
as provided in Paragraph Fourteenth hereof, whose decision, or that of a
majority of them, shall be binding and conclusive upon the parties hereto. The
expense of any such arbitration shall be borne as provided in said Paragraph. In
case of any disagreement as aforesaid, the Lessee shall pay to the Lessor at the
time above provided
27
for the payment of such taxes, on account of the taxes so in disagreement, a sum
of money equal to the proportion of the taxes of the preceding year payable by
the Lessee hereunder, and the Lessor shall pay to the proper Municipal
authorities the full amount of the taxes for the year so in dispute. Upon the
determination by the arbitrators appointed as above provided, of the amount of
the taxes to be paid by the Lessee for such year, then the Lessor shall at once
pay to the Lessee, or the Lessee shall at once pay to the Lessor, as the case
may be, a sum equal to the amount that the sum so paid by the Lessee on account
of said taxes as aforesaid, shall be found to be in excess of or less than the
true amount thereof to be paid by the Lessee as determined by said arbitrators,
together with interest thereon at the rate of six (6%) per centum per annum.
That the Lessee shall also as an additional rental hereunder, pay to the
Lessor within thirty days after any such charges or assessments shall be
payable, a sum of lawful money of the United States equal to eighty (80%) per
centum of the total amount of any and all other charges and assessments for
local improvements or otherwise, that may during the term of this lease be
taxed, charged, imposed or assessed upon the parcel of land above described,
including the portions thereof excepted as aforesaid. In case, however, any such
assessment shall or may be payable in installments, nothing herein contained
shall impose any obligation upon the Lessee to pay any installment of any such
assessment that shall or may be payable in installments as aforesaid, falling
due subsequent to the expiration of the term of this lease, or last renewal term
of this lease, if there be such renewal.
That the Lessee shall, however, have the right to contest in good faith, by
legal proceedings, conducted promptly and at its own expense in the name of the
Lessee or Lessor, any water rents, sewer rents, taxes, charges or assessments
imposed upon the parcel of land above described, and in case any such water
rents, sewer rents, taxes, charges or
28
assessments shall as a result of any such legal proceedings be reduced,
cancelled, set aside or otherwise discharged, the Lessee shall be entitled to
receive its proportion of such water rents, sewer rents, taxes, charges or
assessments, with interest, if any thereon recovered, which has theretofore been
paid to the Lessor as herein provided. In case, however, such legal proceedings
shall be conducted by request of the Lessee in the name of the Lessor, the
Lessee shall indemnify and save harmless the Lessor from any and all costs,
charges or expenses in connection therewith.
That in case the Lessee shall pay to the Lessor the additional rental
payable hereunder in respect of taxes or assessments before the Lessor shall
have paid such taxes or assessments, the Lessor agrees to receive and hold in a
fiduciary capacity the additional rental so paid by the Lessee in respect of
taxes or assessments and to apply the amount so received to the payment of such
taxes or assessments.
That in case the Lessor shall fail to pay any of the taxes or assessments
imposed upon the parcel of land above described within thirty days after receipt
from the Lessee of the amount of such taxes or assessments payable by the Lessee
hereunder, the Lessee shall have the right to pay any such taxes or assessments
so unpaid, and set off the amount so paid with interest thereon at the rate of
six (6%) per centum per annum PRO TANTO against the rental payments falling due
hereunder subsequent to such time.
Notwithstanding the foregoing provisions of this Paragraph First the Lessee
shall not be obligated to make any payment in respect of any tax or similar
charges pursuant hereto until the rendition by the Lessor to the Lessee of a
xxxx therefor, showing the aggregate amount of such tax or other charge and the
portion thereof payable by the Lessee pursuant hereto.
SECOND: That the word "Building" as used in this Paragraph and elsewhere in
this lease, is intended to include
29
the building constructed upon the parcel of land above described and any and all
changes and alterations made in said building, and any building at any time
constructed in the place thereof pursuant to the provisions of this lease.
The words "demised premises" as used in this Paragraph and elsewhere in
this lease, are intended to include the parcel of land above described and the
improvements constructed and at any time constructed thereon (excepting the
portions thereof excepted from this lease as hereinabove provided).
The term "railroad structures", as used in this Paragraph and elsewhere in
this lease, is intended to include any new or existing construction or
improvements on the south side of the above-mentioned passageway, any new
construction within the portion of the demised premises which may be taken and
used, and excepted from this lease, as hereinabove provided, for the purpose of
providing access from said passageway to train platforms within the excepted
space, and any other structures, improvements and equipment now or hereafter
constructed, installed or maintained within the spaces exempted from this lease
as hereinabove provided by any person or corporation, other than the Lessee, its
successors, assigns or subtenants, for railroad, terminal, station or other uses
or purposes.
That the Lessee shall during the term of this lease, at its own cost and
expense, operate the demised premises and the elevators and other facilities
therein, and maintain and keep in good condition and repair the Building and all
parts thereof, both inside and outside (except the railroad structures and the
columns, bracings and foundations of the Building within the spaces excepted
from this lease which are to be maintained by the Lessor at its own cost and
expense) and the fixtures and facilities in the Building or forming part
thereof, including all water, drainage, electric lighting, heating, gas,
elevator, power, sewer, plumbing and other fixtures and facilities therein,
30
and shall also at its own cost and expense, comply with, conform to and obey all
laws, ordinances, rules, orders and notices of the United States, of the State
of New York, of the City of New York and of the various departments and bureaus
of the United States and of said State and City, having or claiming any right or
authority with respect to the Building, either inside or outside (excepting the
portions thereof excepted from this lease as hereinabove provided) or the use
thereof, or the surfacing of or removal of snow and ice from the sidewalks or
driveways adjacent thereto or the curbs along the roadways. The Lessee shall
also indemnify and save harmless the Lessor of and from any and all damages and
costs and claims for same growing out of loss of life or damage or injury to
person or property occasioned in the maintenance, repair, use and operation of
the demised premises and the fixtures and facilities therein contained, or
occasioned by the failure of the Lessee properly to maintain the same in good
condition and repair, or properly to maintain the surfacing of the sidewalks and
the curbs in good condition and repair, or properly to remove the snow and ice
from said sidewalks and driveways; and if the Lessee at any time or times during
the continuance of this lease shall fail or neglect, after thirty days' notice
in writing from the Lessor, to take such action as may be necessary to place
said demised premises, fixtures and facilities in good condition and repair, or
to comply with the requirements of the United States or of the State or
Municipal authorities as aforesaid, or to secure the cancellation of the notices
of violation of said requirements or any liens filed in connection therewith,
the Lessor shall have the right and is hereby authorized on reasonable notice to
enter upon the demised premises and every part thereof and to make such repairs
to said demised premises, fixtures and facilities or to perform such acts in
order to conform to the requirements of the United States or of the State or
Municipal authorities as aforesaid, as the case may be, as may be
31
reasonably necessary, and the expense of any and all such repairs made by the
Lessor as aforesaid, and of the compliance with the requirements of said
authorities as aforesaid, and of the discharge of any liens filed as aforesaid,
shall be considered as additional rental hereunder, and shall be added to the
Ground Rental payment falling due next after the time of such expenditure, and
shall be paid by the Lessee at the time of payment of said rental; the Lessee
shall have the right, however, in good faith at its own expense, to contest the
validity or legality of any requirement or lien of the United States or of the
State or Municipal authorities as aforesaid, and pending such contest actively
prosecuted by the Lessee, the non-compliance with such requirement or the
continuance of such lien shall not be deemed a default under the provisions of
this Paragraph, provided the Lessee shall have furnished to the Lessor indemnity
satisfactory to the Lessor against any loss on the part of the Lessor by reason
thereof.
THIRD: That this lease and the leasehold estate hereby created and/or the
interest under this lease of any person, firm or corporation constituting the
Lessee hereunder, may be assigned from time to time to any one or more persons,
firms or corporations; provided, however, that at the time of any such
assignment there exists no uncured default on the Lessee's part to be performed
under this lease and with respect to which default a notice has been served by
the Lessor upon the Lessee in accordance with the provisions of this lease
relating thereto; and provided further, however, that any assignment of this
lease and the leasehold estate hereby created shall be made only upon the
condition, and any instrument of assignment shall expressly provide, that the
assignee, or assignees, shall assume and agree to pay the Ground Rental and
additional rental which shall have accrued and remain unpaid and which shall
thereafter accrue under this lease and to comply with and perform all of the
other
32
covenants, conditions, limitations and agreements on the part of the Lessee to
be complied with and performed under this lease, with the same force and effect
as if originally named as the Lessee in this lease. Upon the making of any such
assignment upon the condition aforesaid, the respective assignor shall be
released from all liability under this lease, except for Ground Rental and
additional rental for water rents, sewer rents, taxes, and insurance premiums,
if any, which shall have accrued prior to the date of the delivery of such
assignment (provided, however, that liability of such assignor for Ground Rental
and additional rental as aforesaid accrued prior to the date of the making of
such assignment shall not be deemed to include any liability for any retroactive
adjustments made in the Ground Rental or additional rental as aforesaid
subsequent to the date of the making of any such assignment), and the Lessor
agrees to furnish to any assignor of this lease, upon the making of any
assignment of this lease as herein permitted, an instrument or instruments duly
acknowledged, certifying to the existence of no default under this lease, if
there be no such default, and stating the date to which rent and additional rent
have been paid, and in such event releasing the assignor from any liability
theretofore or thereafter accruing hereunder, except as aforesaid. Any mortgage
or deed of trust upon the leasehold estate hereby created shall by its terms be
made expressly subject to all the Lessor's rights under the provisions,
covenants, conditions, exceptions and reservations contained in this lease.
Notwithstanding anything in this Paragraph contained to the contrary, the
assignment of this lease and the leasehold estate hereby created (a) to a
purchaser at a foreclosure sale in any action or proceeding to foreclose any
mortgage or deed of trust becoming a lien upon the leasehold estate, or (b) to
any person, firm or corporation in lieu of the foreclosure of any such mortgage
or deed of trust, whether or not there is existing or continuing a default
33
in the performance of any of the covenants, conditions, limitations or
agreements upon the part of the Lessee to be performed hereunder, shall not be
deemed to be in violation of this Paragraph; provided, however, that all of the
other conditions and provisions of this Paragraph are complied with, including
the assumption by such purchaser or such person, firm or corporation of all the
obligations of the Lessee under this lease, and provided further, however, that
such purchaser or such person, firm or corporation shall, as a condition to any
such assignment, pay or cause to be paid to the Lessor all sums then due from
the Lessee to the Lessor under this lease. In the event that the purchaser at
any such foreclosure sale, or the person, firm or corporation acquiring said
leasehold estate in lieu of the foreclosure of any such mortgage or deed of
trust, shall be a designee or nominee of, or a corporation created by or for the
benefit of, the holder of any such mortgage, or the Trustee under any such deed
of trust or the holder or holders of bonds or other evidence of indebtedness
issued and outstanding thereunder, the Lessor agrees that said holder of said
mortgage or said Trustee under said deed of trust or the holder or holders of
any of said bonds or other evidence of indebtedness, as the case may be, shall
in no event be liable for any obligations undertaken or assumed by such
purchaser or such person, firm or corporation, and the Lessor agrees to look
solely to such purchaser or person, firm or corporation and not to the holder of
said mortgage or to the Trustee under said deed of trust, or to the holder or
holders of said bonds or other evidence of indebtedness, as the case may be, in
respect of any liability of any description assumed or agreed to by any such
purchaser or by any such person, firm or corporation.
Nothing in this lease shall be construed, however, to prevent the
devolution of this lease by operation of law upon, or the passage of this lease
by operation of law to, any corporation into which the Lessee (or any assignee
of
34
this lease who shall have complied with the requirements for assumption of
liability set forth in the preceding paragraph) shall be merged; provided
always, however, that the corporation into which said Lessee or assignee shall
be merged shall, either by operation of law or by an express instrument of
assignment, assume all the covenants, conditions, limitations and agreements on
the part of the Lessee to be complied with and performed under this lease, with
the same force and effect as if originally named as the Lessee in this lease.
Nothing in this lease shall be construed to prevent the Lessee from
subletting all or portions of the demised premises for the uses and purposes
herein permitted. The performance of any of the obligations of the Lessee
hereunder by any subtenant shall be deemed to be the equivalent of the
performance thereof by the Lessee.
FOURTH: That the Lessee shall use the demised premises only for a
high-grade office building, except that the ground floor and floor next above
the ground floor may be used for banks, for trust companies, or for stores, and
the Lessee shall not use or permit or allow the demised premises or any portion
thereof to be used for any purpose other than as above provided without the
consent of the Lessor first had and obtained.
That the Lessee in connection with its use of the demised premises or the
use of said premises by its tenants or subtenants shall not construct or allow
or permit to be constructed any advertising signs upon the roof, walls or
windows of the Building, or any lettering upon the windows, nor shall the Lessee
permit the windows above the floor next above the ground floor, or the windows,
if any, in the spaces adjoining the passageway of the Lessor, to be used for
advertising or display purposes, without in each case the written consent of the
Lessor first had and obtained, except that such bronze or brass plates may be
placed on the walls, and such lettering on the windows of either the ground
floor or the floor next above the ground
35
floor of the Building, as shall be in harmony with the general character of the
respective adjoining properties and as shall not tend to lower the character or
appearance of the Building or its surroundings.
That the Lessee shall also, at its own cost and expense, comply with all
the regulations, rules and requirements of the Board of Fire Underwriters in
respect of the demised premises, and shall not knowingly permit any article to
be brought upon or any act to be done upon or about the demised premises that
will cause any policy of insurance thereon to be cancelled, or increase the
rates of such insurance beyond that usually charged for tenanted buildings of a
similar character and construction used for the purposes herein authorized.
FIFTH: That the Lessee shall not suffer, allow or permit the loading of any
of the floors of the Building, or any portion or portions thereof, beyond the
weights permitted by the building ordinances of the City of New York as changed
from time to time during the term of this lease by lawful orders of the
Municipal authorities having jurisdiction in the premises.
SIXTH: That the Lessee shall make no structural alterations or structural
changes in the interior of the Building, and no alterations or changes in the
exterior of the Building or in the bearing walls, supports, beams or
foundations, or that will increase the load carried by said walls, supports,
beams or foundations, without the written consent of the Lessor first had and
obtained, and plans and specifications showing such proposed alterations and
changes shall be submitted to the Lessor for approval upon the application for
such consent, and all alterations or changes, made with the written consent of
the Lessor as aforesaid, shall be made at the sole cost and expense of the
Lessee under the supervision of an architect or engineer appointed by the Lessee
and approved by the Lessor for
36
such purpose, and, if the same is required by law, shall also be made in
accordance with plans and specifications first submitted to and approved by the
Building Department of the City of New York and the other Municipal authorities
having charge of such changes and alterations and in accordance with such rules
and regulations as said Municipal authorities may from time to time make in
regard thereto. The Lessee shall also make no change in the mechanical, lighting
and sanitary equipment in the Building that will make such equipment unsafe,
unsanitary or unfit for the purpose for which it was installed. Alterations or
changes in the interior partitions of office and store space in the premises or
the removal therefrom by the Lessee or any subtenant of furniture, trade
fixtures or business equipment shall not be deemed to be structural alterations
and changes for purposes of this Paragraph.
The Lessee shall have the right, however, at its own cost and expense, upon
obtaining approval of the public authorities having jurisdiction, to install in
the demised premises (1) a power plant for generating electric current or steam,
or both, to be used within the Building, and (2) an air conditioning system for
service within the Building, at locations satisfactory to the Lessor and in
accordance with plans and specifications approved by the Chief Engineer of the
Lessor, provided that any such construction shall not exceed such bearing
weights on the building columns as shall be approved by the Lessor, and provided
further that before commencing any such construction the Lessee shall furnish a
bond or other security acceptable to the Lessor, conditioned upon the
performance of such construction in accordance with the plans and specifications
approved by the Chief Engineer of the Lessor as aforesaid and the requirements
of the Federal, State and Municipal authorities having jurisdiction in respect
thereof, free from mechanics' liens and other liens of every kind, except,
however, that the Lessee shall have the right to obtain the moneys to pay for
said equipment and the installation
37
thereof by either: (1) making a chattel mortgage or mortgages upon said power
plant or air conditioning system, or both, to secure the repayment of such
moneys with interest over a period not in excess of twenty years, or (2)
purchasing the necessary equipment for said power plant or air conditioning
system, or both, under a conditional sale contract or contracts, whereunder
title shall be reserved to the seller or sellers until payment in full for such
equipment is completed.
During the existence and for the purpose of any such chattel mortgage or
mortgages or any such conditional sale contract or contracts, the power plant or
air conditioning system, subject to the lien of such chattel mortgage or
mortgages or to the reserved title in the seller or sellers under such
conditional sale contract or contracts, shall be deemed personal property (not
the property of the Lessor herein), and said personal property may be removed
from the demised premises upon either foreclosure of such chattel mortgage or
mortgages or default under the terms of such conditional sale contract or
contracts, provided that in either event the damage, if any, caused to the
Building or any portion thereof, by such removal, shall be repaired by the
Lessee, chattel mortgagee or conditional vendor, who shall, if the same becomes
necessary or is required by reason of such removal, make installations or
alterations for the proper functioning of the Building for office use, and prior
to any such removal the Lessor shall have the right to require a bond or other
security conditioned upon the removal of such property and restoration of the
Building as aforesaid satisfactory to the Lessor and in accordance with lawful
requirements and free from liens. Except as otherwise above expressly provided,
the power plant and air conditioning system, when installed in the demised
premises, shall become and be part of the Building facilities and shall be
maintained by the Lessee under and subject to the provisions of this lease and
shall be surrendered to the Lessor at the expiration or sooner termination of
the term of this lease or renewal term of this lease, if there be renewal.
38
The Lessee shall have the right at any time, and from time to time, to sell
or dispose of any building equipment or personal property subject to this lease
which may have become obsolete or unfitted for use, or which is no longer
useful, necessary or profitable in the operation of the Building, provided that
the Lessee shall then or theretofore, if the same be required for the proper
functioning of the Building for use by its occupants, substitute for the same
other building equipment or personal property, not necessarily of the same
character, but of a value at least equal to the then value of the property so
disposed of.
SEVENTH: That the Lessee shall also as additional rental hereunder pay to
the Lessor, on the first day of each and every lease year during the term of
this lease, such annual sum of lawful money of the United States, as, at the
rates chargeable by insurance companies approved by the Lessor in any such year
for insurance against loss or damage to the Building by fire and by lightning,
windstorm, hail, explosion, riot and civil commotion, aircraft and vehicles and
smoke, will pay all premiums for such insurance in amounts sufficient to prevent
the Lessee or the Lessor from becoming a co-insurer within the terms of the
applicable policies, but in any event, in amounts not less than eighty (80%) per
centum of the then full insurable value of the Building, the term "full
insurable value" to mean the actual replacement cost (excluding foundation and
excavation costs), less physical depreciation, and the Lessor shall, upon
receipt of such sums, apply the same for policies of insurance in insurance
companies approved by the Lessor as aforesaid. All such policies of insurance
shall name the Lessor and the Lessee and also, if the Lessee so requires, any
sublessee or subsublessee of all or substantially all of the demised premises,
as the insureds as their respective interests may appear. Subject to the
provisions hereinafter in this Paragraph set forth, such policies shall be
payable, if the Lessee so requires, to the holder of any mortgage or
39
to the Trustee under any deed of trust becoming a lien upon the leasehold estate
hereby created or upon the leasehold estate created by any such sublease or
subsublease as the interest of such holder or such Trustee may appear, pursuant
to a standard mortgagee clause. The loss, if any, under any policies provided
for in this Paragraph shall be adjusted with the insurance companies (a) by the
Lessee and any such sublessee or subsublessee or leasehold mortgagee in the case
of any particular casualty resulting in damage or destruction not exceeding
$250,000 in the aggregate, or (b) by the Lessor and the Lessee and any such
sublessee or subsublessee or leasehold mortgagee in the case of any particular
casualty resulting in damage or destruction exceeding $250,000 in the aggregate.
The loss so adjusted shall be paid (i) to the Lessee in the case of any
particular casualty resulting in a loss payment not exceeding $250,000 in the
aggregate, or (ii) to the Insurance Trustee hereinafter identified and, subject
to the provisions of this Paragraph hereinafter set forth relating to the
application of the proceeds of insurance, to the holder of any mortgage or to
the Trustee under any deed of trust becoming a lien upon the leasehold estate
hereby created to whom loss may be payable, in the case of any particular
casualty resulting in a loss payment exceeding $250,000 in the aggregate. All
such policies of insurance shall provide that the loss, if any, thereunder shall
be adjusted and paid as hereinabove provided. The Insurance Trustee to whom loss
shall be payable as hereinabove set forth shall be such bank or trust company
maintaining its principal office in the Borough of Manhattan, City and State of
New York, as may be designated by the Lessor. The sum payable by the Lessee
hereunder for insurance premiums may, if the Lessee so desires, be made in such
amount as will pay for insurance premiums in companies approved as aforesaid for
such number of years in excess of one year, as the Lessee may elect, and the
amount so paid shall in that case be deemed a payment of the annual
40
sum provided for in this Paragraph for the years covered by such insurance. The
Lessee may, if it so elects, furnish policies of insurance covering the risks
specified above with premiums paid, to the Lessor, with loss payable as
aforesaid, in insurance companies approved by the Lessor and to the amounts
above specified, in lieu of the payment for such insurance herein provided for.
In the event that during the term of this lease the Building shall be
damaged by fire, or by any of the other hazards specified above, then:
A. In case such damage or destruction shall result in a loss
payment not exceeding $250,000 in the aggregate under the policies of
insurance referred to above, the Lessee shall, at its own cost and
expense, proceed promptly and in a good and workmanlike manner to
restore the damage so caused, and in case additional moneys shall be
required to complete said repairs over and above the proceeds of
insurance, then all such additional moneys shall be paid by the Lessee
to the end that the Building shall be repaired or restored as nearly
as possible to the condition the same was in immediately prior to such
damage, free from liens of every kind. In case the proceeds of
insurance recovered shall be in excess of the sums required to repair
or restore the Building as aforesaid, the Lessee shall be entitled to
such excess.
B. In case such damage shall result in a loss payment exceeding
$250,000, the Lessee shall, at its own cost and expense, proceed to
repair, restore or replace the Building, or such part thereof as shall
have been damaged or destroyed, and the proceeds of insurance, less
the reasonable cost, if any, incurred in connection with the
adjustment of the loss (hereinafter called the "insurance proceeds")
in the hands of the Insurance Trustee, shall be applied by the
Insurance Trustee to the payment of the cost of the aforesaid
restoration,
41
repairs or replacement, including the cost of temporary repairs or for
the protection of the property pending the completion of permanent
restoration, repairs or replacement (all such temporary repairs,
protection of property, and permanent restoration, repairs and
replacement are hereinafter collectively referred to as the
"restoration") and may be withdrawn from time to time as such
restoration progresses upon the written request of the Lessee, which
shall be accompanied by the following:
1. A certificate signed by an executive officer of the Lessee
and signed also as to clause (c) by the architect or engineer in
charge of the restoration (who shall be selected by the Lessee and
shall be reasonably satisfactory to the Lessor), dated not more than
thirty days prior to such request, setting forth the following:
(a) that the sum then requested to be withdrawn either has
been-paid by the Lessee or is justly due to contractors,
subcontractors, materialmen, engineers, architects or other
persons (whose names and addresses shall be stated), who have
rendered services or furnished materials for the restoration,
and giving a brief description of such services and materials
and the several amounts so paid or due to each of said persons
in respect thereof and stating that no part of such expenditures
has been or is being made the basis for the withdrawal of any
insurance proceeds in any previous or then pending request, or
has been paid out of the proceeds of insurance not required to
be paid to the Insurance Trustee under this Paragraph;
(b) that except for the amount, if any, stated in said
certificate pursuant to the foregoing (a) to be due for services
or materials, there is no outstanding
42
indebtedness known to the Lessee, after due inquiry, which is
then due for labor, wages, materials, supplies or other services
in connection with the restoration;
(c) that the cost, as estimated by such architect or
engineer, of the restoration required to be done subsequent to
the date of such certificate in order to complete the
restoration, does not exceed the insurance proceeds remaining in
the hands of the Insurance Trustee after withdrawal of the sum
requested in such certificate.
2. A title company or official search or other evidence
satisfactory to the Insurance Trustee, showing that there have not
been filed with respect to the demised premises any vendor's,
contractor's, mechanic's, laborer's or materialman's statutory or
similar lien which has not been discharged of record, except such as
will be discharged upon payment of the sum requested in such
certificate.
3. An opinion of counsel stating that the instruments which have
been or are therewith delivered to the Insurance Trustee conform to
the requirements of the foregoing clauses 1 and 2 of this paragraph
and that, upon the basis of such request, the insurance proceeds,
the withdrawal of which is then requested, may be properly paid
over under this Paragraph.
Upon compliance with the foregoing provisions of this Paragraph, the
Insurance Trustee shall, out of the insurance proceeds, pay to the persons named
in said certificate pursuant to the foregoing paragraph l(a) of this Paragraph,
the respective amounts stated in said certificate to be due to them, and shall
pay to the Lessee the amounts stated in said certificate to have been paid by
the Lessee. If the insurance proceeds shall be insufficient to pay the entire
43
cost of the restoration, the Lessee agrees to pay the deficiency. Upon the
completion of the restoration and payment in full thereof, the whole balance of
insurance proceeds, if any, then remaining in the hands of the Insurance Trustee
may be withdrawn by the Lessee and shall be paid by the Insurance Trustee upon
receipt of a certificate signed by an executive officer of the Lessee dated not
more than ten days prior to such request, setting forth the following:
(i) that the restoration has been completed in full;
(ii) that all amounts which the Lessee is or may be entitled to
withdraw under paragraph B of this paragraph have been withdrawn
thereunder; and
(iii) that all amounts for whose payment the Lessee is or may
become liable in respect of such restoration have been paid in full.
C. In case such damage or destruction shall occur at any time during the
last five years of the last renewal term of this lease and the estimated cost of
restoration shall exceed $1,000,000, the Lessee shall have the right either to
effect restoration in accordance with the foregoing provisions of this Paragraph
Eighth or to terminate this lease. The Lessee shall make its election so to
restore or terminate by giving notice of such election to the Lessor within 90
days after the date of such damage or destruction. If the Lessee shall elect to
terminate this lease pursuant to this Subparagraph C, this lease shall cease and
come to an end on a date to be specified by the Lessee in such notice of
termination (which date shall be not less than 30 nor more than 60 days after
the date of delivery of such notice). In case of any termination of this lease
pursuant to this Subparagraph C the Lessee shall make all payments of Ground
Rental and additional rent and other charges payable by the Lessee hereunder
(which shall not, however, include any sum required for
44
the restoration of such destruction or damage) justly apportioned to the date of
such termination and all proceeds of insurance under any policy or policies
required by this Paragraph and received by reason of such destruction or damage
shall be paid to and retained by the Lessor as its own property.
In the event that a new lease is entered into pursuant to the provisions of
Paragraph Tenth hereof at any time after the occurrence of any damage or
destruction and before the restoration of the Building has been completed, the
provisions of this Paragraph Seventh relating to the application of, and the
right to withdraw, insurance proceeds shall inure to the benefit of any lessee
of such new lease to the extent of insurance proceeds remaining in the hands of
the Insurance Trustee at the time of the expiration of this lease.
No reduction or diminution shall be made in the rentals and additional
rentals herein provided for, on account of any loss or damage by fire or other
casualty covered by insurance.
EIGHTH: That the Lessor shall furnish or cause to be furnished to the
Lessee during the term of this lease, such direct current, but not in excess of
the safe capacity of the presently installed service facilities, as may be
required by the Lessee for the operation of elevators, ventilating fans, pumps
and heavy machinery in the demised premises, and the Lessee shall pay monthly to
the Lessor during the term of this lease as an additional rental hereunder, such
sum of lawful money of the United States as the Lessor may from time to time
charge for furnishing such electric current, at reasonable rates and at rates
in no event in excess of the prevailing rates charged for the time being for
similar service in the Borough of Manhattan, City of New York, by the
Consolidated Edison Company of New York, Inc., or such other reputable company
as during the term of this lease shall then be engaged in the business of
furnishing electric current
45
for lighting and power to the public generally in the Borough of Manhattan, City
of New York. The service herein provided for, however, covers only the
furnishing of electric current from one service switchboard of the standard form
of The New York Central Railroad Company, unless the Lessor shall otherwise
elect, and does not include any of the following: any connection beyond such
switchboard, or care of the installation in the demised premises, or supply of
any electric lamps or trimming of arc lamps therein, or the maintenance of the
installation in the demised premises and of the wires, lamps and other lighting
and power fixtures and facilities therein, all the foregoing excepted items
being assumed by the Lessee under Paragraph Second hereof. The Lessee shall,
without charge therefor, furnish to the Lessor a suitable and sufficient room in
the ground floor of the Building, free from all pipes and other service
facilities, at a location to be designated by the Lessee reasonably appropriate
for the purpose, properly lighted and ventilated and with access thereto at all
reasonable times, for such service connections, meters and switching and
transforming apparatus as may be reasonably required in furnishing the service
herein provided for, and also necessary conduits for a direct run of cables from
the point of entrance of the conduits into the Building to the room above
mentioned. The meter to be provided by the Lessor shall only be such meter or
meters as is required by the Lessor to measure the current furnished to the
demised premises from one service switchboard as aforesaid; any and all meters
desired by the Lessee to measure the current used by the Lessee's tenants shall
be provided by the Lessee.
Provided, however, that the Lessee shall discontinue the receiving of such
direct current on or before December 31, 1959; and provided, further, that in
the event that the Lessee shall arrange to obtain electric current, whether
direct or alternating, from the Consolidated Edison Company
46
of New York, Inc., and shall require or deem it advisable to have connections
with the service facilities of the Building in addition to those now maintained
by said company, the Lessor shall permit said company to make such additional
connections at such locations and under such regulations as may be approved by
the Lessor, and the Lessor shall arrange for permission to be granted to the
Consolidated Edison Company of New York, Inc., to install a conduit line with a
connection extending from the nearest available point, as may be reasonably
required by said company to make said additional connections with the service
facilities of the Building at such locations and under such regulations as may
be approved by the Lessor, it being understood that the Lessee shall pay such
portion of the cost of installing such conduit line as shall not be assumed by
the Consolidated Edison Company of New York, Inc.
That the Lessor shall also furnish, or cause to be furnished, to the Lessee
during the term of this lease, a supply of steam sufficient properly to heat the
demised premises when and as reasonably required by the Lessee, and also a
supply of steam for heating the water for the plumbing facilities in the demised
premises requiring hot water, and the Lessee shall pay monthly to the Lessor
during the term of this lease as an additional rental hereunder, such sum of
lawful money of the United States as the Lessor may from time to time charge for
furnishing such heating medium, at reasonable rates and at rates in no event in
excess of the prevailing rates charged for the time being for like service by
the New York Steam Corporation or such other reputable Company as during the
term of this lease shall then be engaged in the business of furnishing steam for
heating to the public generally in the Borough of Manhattan, City of New York.
The service herein provided for, however, covers only the furnishing of such
heating medium, and does not include any of the following: any reducing valve or
valves or any connections beyond the meter or meters, or care of the pipes,
valves, radiators,
47
coils and the other heating fixtures and facilities in the demised premises; the
maintenance of the pipes, valves, radiators, coils and other heating fixtures
and facilities therein being assumed by the Lessee under Paragraph Second
hereof. The Lessee shall, without charge therefor, furnish to the Lessor a
suitable and sufficient room in the ground floor of the Building, at a location
to be designated by the Lessee reasonably appropriate for the purpose, properly
lighted and ventilated and with access thereto at all reasonable times, for such
service connections and meters as may be reasonably required in furnishing the
service herein provided for, and shall also provide a direct run of pipes from
the point of entrance of the pipes into the Building to the room above
mentioned. The Lessor shall not be required to furnish more than one heating
connection to the Building for each heating medium furnished. The meter or
meters to be provided by the Lessor shall be only such as may be required by the
Lessor to measure the heating medium furnished to the Building; any and all
meters desired by the Lessee to measure the heating medium used by the Lessee's
tenants shall be provided by the Lessee.
The Lessee shall make, at its own expense, all necessary provision for the
disposal of condensation from its heating system and devices requiring the use
of steam in a manner approved by the Lessor, or the Lessee may return to the
Lessor such condensation under such conditions as may from time to time be
agreed upon between the Lessor and the Lessee.
Provided, however, that the Lessee shall, on or before December 31, 1959,
discontinue the receiving of steam required in the demised premises, and in such
event the Lessee shall, at its sole cost and expense, arrange within such period
to obtain steam from the public utility company furnishing such service in the
Borough of Manhattan, City of New York, upon payment by the Lessee of the lawful
charges therefor, or from some source other than as in this Paragraph provided,
as the Lessee shall then determine,
48
and the Lessor shall thereupon be no longer required to furnish or cause to be
furnished any steam for the demised premises, but the Lessor shall in such case,
upon request of the Lessee, permit the company proposing to furnish such service
to the Lessee to make connections with the service facilities of the Building at
such locations and under such regulations as may be approved by the Lessor,
which approval the Lessor shall not unreasonably withhold.
NINTH: That the Lessor, its officers, agents and servants, shall have the
right at all reasonable hours and upon reasonable notice to enter upon the
demised premises and every part thereof for the purpose of inspecting and
examining the same, and shall also have the right, but at its own cost and
expense and only to the extent that the same shall not injuriously affect the
Building or the use and enjoyment of the demised premises, by the Lessee, to
make such changes as may from time to time or at any time or times seem
advisable to the Lessor, its successors and assigns, in the supporting
structures of the Building below the planes referred to in sub-divisions (a) to
(f), both inclusive above, and in the location of said supporting structures to
accommodate the changes desired by the Lessor below said planes, and during the
work of making said changes the Lessor shall have the right and is hereby
authorized to enter at reasonable hours and upon reasonable notice upon the
demised premises above said planes and to place therein such temporary shoring
and blocking as may be reasonably required in making said changes, and also to
remove all live loads from the particular supports affected by said changes,
causing as little inconvenience as possible to the occupants, repairing all
injuries done to the demised premises in any such work, in accordance with the
rules and regulations of the Municipal department of the City of New York having
jurisdiction and reimbursing the Lessee for all actual loss to itself or its
tenants (including loss of tenants) of the portions of the demised premises
affected during the progress thereof by such work.
49
TENTH: That in case during the term of this lease default be made in the
payment of (i) the Ground Rental or any part thereof when due, or (ii) the
additional rental on account of taxes when due as herein provided, and such
default or defaults in the payment of Ground Rental or such additional rental
shall continue for thirty (30) days after notice of such default specifying the
same shall have been given by the Lessor to the Lessee, then the Lessor, its
successors or assigns, shall have the right, and is hereby authorized, unless
such default or defaults shall have been remedied, to enter upon and take
possession of the demised premises or any part thereof by summary proceedings or
otherwise, as to the Lessor shall seem advisable without being liable in damages
therefor and take and have again the demised premises and every part thereof,
free, clear and discharged of this lease, and of all the rights of the Lessee
hereunder; or the Lessor may, at its option, take such other action or
proceeding in the premises as to it shall seem advisable. Interest at the rate
of six per centum (6%) per annum shall accrue upon any Ground Rental or
additional rentals payable hereunder during the period that payment thereof by
the Lessee may be delayed.
That in case during the term of this lease the demised premises shall be
abandoned by the Lessee, or default shall be made in the payment of (i) the
Ground Rental or any part thereof when due, or (ii) the additional rental on
account of taxes when due as herein provided, or (iii) any of the other
additional rentals due as herein provided, and such default or defaults shall
continue for sixty (60) days after notice of such default specifying the same
shall have been given by the Lessor to the Lessee, or the Lessee shall fail
after ninety (90) days' written notice from the Lessor to proceed with
reasonable diligence to the performance or observance of any of the other
covenants and agreements herein contained to be observed and performed by the
Lessee, or in case the Lessee shall be declared bankrupt or insolvent according
to law, or an application
50
for the reorganization of the Lessee under the Bankruptcy Act shall be filed by
or against the Lessee and shall not be dismissed by the Court within ninety (90)
days of such filing, or in case this lease shall be assigned, except as
hereinbefore in Paragraph Third hereof expressly permitted, or shall by
operation of law devolve upon or pass to any corporation, person or persons
other than the Lessee, except as hereinbefore in Paragraph Third hereof
expressly permitted, or in case the Lessee shall after ninety (90) days' written
notice from the Lessor, use or continue to use the demised premises for any
purposes other than as herein authorized, or in case the Lessee shall for the
period of ninety (90) days after notice from the Lessor fail to secure the
satisfaction or discharge of any mechanics' liens or any conditional sales or
chattel mortgages on any materials, fixtures or articles used in the
construction of or appurtenant to the Building (nothing herein, however, shall
require the Lessee to secure the satisfaction or discharge of any conditional
sales or chattel mortgages on any materials, fixtures or articles purchased or
acquired in connection with the power plant or the air conditioning system as to
which permission for financing in such manner is granted by the Lessor in
Paragraph Sixth hereof), the Lessor may in any such event terminate and end this
lease and the term hereof by giving to the Lessee notice in writing to the
effect that this lease and the term hereof will terminate and end on a day to be
named in said notice, which day shall be at least thirty (30) days subsequent to
the day of the service of said notice, and in the event of the service of said
notice, this lease and the term hereof shall terminate and end upon the day
named therein. If upon the termination of this lease as aforesaid, the Lessee or
such corporation, person or persons as shall then be in occupancy of the demised
premises shall fail immediately to surrender possession of the demised premises
to the Lessor, the Lessor may remove the Lessee, its successors, assigns,
subtenants and
51
under tenants, if there be such, therefrom, by summary proceedings for a holding
over and continuance in possession of the demised premises after the expiration
of the term of this lease, or may otherwise remove the Lessee and such other
parties, if any, therefrom, as to the Lessor may seem advisable.
The Lessor agrees that simultaneously with the giving of any notice to the
Lessee of the character referred to in the preceding paragraphs of this
Paragraph Tenth it will give a duplicate copy thereof to the holder of any
mortgage and to the Trustee of any deed of trust which may be a lien upon this
lease and the leasehold estate hereby created, and the holder of any such
mortgage or the Trustee under any such deed of trust shall have the right (but
shall not be obligated so to do), within the time and in the manner in said
preceding paragraphs of this Paragraph Tenth provided, to cure any default of
the Lessee with the same effect as if such default had been cured by the Lessee.
Before giving notice of termination of this lease on account of the Lessee
having been declared bankrupt or insolvent according to law, or by reason of an
application for reorganization of the Lessee under the Bankruptcy Act having
been filed by or against the Lessee and not dismissed by the Court within ninety
(90) days, the Lessor will give the holder of any such mortgage and the Trustee
under any such deed of trust notice of the fact that the Lessee has been
declared bankrupt or insolvent according to law, or that such an application for
reorganization has been filed by or against the Lessee and not dismissed by the
Court, as the case may be, and notice of termination of this lease for such
cause shall not be given unless the holder of such mortgage or the Trustee under
such deed of trust or the holder or holders of bonds or other evidence of
indebtedness issued and outstanding thereunder shall fail to deliver to the
Lessor, within thirty (30) days after notice of such fact shall have been given,
a proper instrument
52
indemnifying the Lessor against rental loss during such period as the leasehold
may be in the custody of the Court during the pendency of legal proceedings on
account of such bankruptcy, insolvency or application for reorganization.
In case of the termination of this lease as in this Paragraph Tenth
provided whereby all rights of the Lessee hereunder shall be terminated and at
an end, if at the time of such termination there be a mortgage or deed of trust
upon the leasehold rights of the Lessee under this lease, the Lessor agrees upon
request of the holder of said mortgage or of the Trustee under said deed of
trust, made within sixty (60) days after such termination of this lease, to
execute and deliver to the holder of said mortgage or to said Trustee, or, at
the option of said holder or said Trustee, to a designee or nominee of, or a
corporation created by or for the benefit of, the holder of said mortgage or
the Trustee under said deed of trust or the holder or holders of bonds or other
evidence of indebtedness issued and outstanding under said deed of trust, a new
lease of the demised premises for a term and upon the terms and conditions
hereinafter set forth, upon the assumption by the holder of said mortgage or
said Trustee, or by such designee, nominee or corporation, as the case may be,
of all the obligations of the Lessee under this lease, including any obligation
of the Lessee with respect to which there shall have been a default existing or
continuing hereunder at the time of such termination, and upon condition that
the holder of said mortgage or said Trustee under said deed of trust or the
holder or holders of said bonds or other evidence of indebtedness shall pay or
cause to be paid to the Lessor all sums then due from the Lessee to the Lessor
under this lease if the same had not been terminated as aforesaid. Said new
lease shall be for the remainder of the term of this lease commencing on the
date of such termination of this lease, at the rentals and additional rentals
and upon the same covenants, conditions,
53
limitations and agreements as are herein contained, including the covenants in
respect of renewal. If the lessee of said new lease shall be a designee or
nominee of, or a corporation created by or for the benefit of, the holder of any
such mortgage or the Trustee under any such deed of trust or the holder or
holders of bonds or other evidence of indebtedness issued and outstanding
thereunder, the Lessor agrees that the holder of said mortgage or said Trustee
under said deed of trust or the holder or holders of any of said bonds or other
evidence of indebtedness, as the case may be, shall in no event be liable for
the obligations undertaken by the lessee under said new lease, and the Lessor
agrees to look solely to said lessee under said new lease (who shall assume and
agree to perform all of the covenants, conditions and agreements thereof on the
part of the lessee therein to be performed) and not to the holder of said
mortgage or to the Trustee under said deed of trust or to the holder or holders
of said bonds or other evidence of indebtedness, as the case may be, in respect
of any liability of any description assumed or agreed to by said lessee under
said new lease.
If the Lessee shall sublet the whole or substantially all of the demised
premises, the provisions of the three preceding paragraphs of this Paragraph
Tenth applicable to the holder of any such mortgage or the Trustee under any
such deed of trust shall be applicable to the sublessee, to a leasehold
mortgagee (including in said term a trustee of a deed of trust) of the sublease,
to any lessee (herein called a subsublessee) to which said sublessee shall
further sublet the whole or substantially all of the demised premises and to a
leasehold mortgagee of such subsublease; provided, however, that the provisions
of the immediately preceding paragraph of this Paragraph Tenth shall not be
applicable to a sublessee if the termination of this lease referred to in said
immediately preceding paragraph shall have resulted directly or indirectly from
a default by such sublessee under its sublease, nor shall the provisions of
54
said paragraph be applicable to a subsublessee if such termination shall have
resulted directly or indirectly from a default by such subsublessee under its
subsublease. In the event that any sublessee or any leasehold mortgagee of any
sublease or any subsublessee or any leasehold mortgagee of any subsublease shall
be entitled to exercise the rights of the holder of a mortgage or the Trustee of
a deed of trust referred to in said immediately preceding paragraph, and if
within the sixty (60) day period specified in said paragraph more than one
request for a new lease shall have been received by the Lessor, priority shall
be given, regardless of the order in which such requests shall be made or
received, to said holder or Trustee if it shall make such request, then to any
sublessee making such request, then to any leasehold mortgagee of a sublease
making such request, then to any subsublessee making such request and then to
any leasehold mortgagee of a subsublease making such request.
ELEVENTH: That the Lessee shall peaceably give up and surrender possession
of the demised premises and every part thereof unto the Lessor at the expiration
or sooner termination of the term of this lease or renewal term of this lease,
if there be renewal, together with the Building and all the water, gas, electric
lighting, elevator, power, heating, sewer, drainage, plumbing and other fixtures
and facilities in the Building or forming part thereof of the character classed
as real estate and as part of the building, in as good condition and repair as
reasonable use and wear thereof will permit, damage by the elements excepted.
TWELTH: That the Lessee (provided that there then exists no uncured default
on the Lessee's part to be performed under this lease and with respect to which
default a notice has been served by the Lessor upon the Lessee in accordance
with the provisions of this lease relating thereto), shall have the right, not
earlier than two years
55
and not later than six months prior to the expiration date of the term of this
lease, to serve upon the Lessor a notice in writing to the effect that the
Lessee elects that this lease shall be renewed for a further term of eleven
years and seven months from the expiration date of the term of this lease. In
the event that (no such uncured default existing) the Lessee shall elect to
renew this lease and shall serve notice of such election as aforesaid, then upon
the expiration of the term hereof, a first renewal lease shall be executed by
and between the parties hereto, whereby the Lessor shall let unto the Lessee,
and the Lessee shall take and hire from the Lessor, the parcel of land above
described, with the exceptions and reservations above set forth, for the term of
eleven years and seven months from the expiration date of the term hereof,
subject to the rights of the Lessor and the Railroad Companies, their and each
of their successors and assigns, in and to the use and possession of the
portions of the parcel of land above described excepted and reserved as
aforesaid, all as herein provided, and at the annual Ground Rental of Three
Hundred Ninety Thousand Dollars ($390,000.00), and at the other additional
rentals herein contained and upon the other terms, covenants, conditions,
limitations and agreements herein contained (including the next succeeding
paragraph of this Paragraph Twelfth), except that said renewal lease shall
provide that upon the expiration of said first renewal term the Lessee shall
have the right to require two further renewals as provided in Paragraph
Thirteenth hereof.
The Lessor agrees that if the Lessee, for any reason shall fail within the
time limited in this lease, or shall not be entitled, to exercise its right to
renew this lease for any renewal term as herein provided, the Lessor shall
notify the holder of any mortgage or the Trustee of any deed of trust which may
be a lien on this lease and the leasehold estate hereby created that the Lessee
has failed as aforesaid,
56
or is not entitled, to exercise its right to renew this lease, as the case may
be, and the holder of said mortgage or the Trustee under said deed of trust
shall have the right, by a date not later than thirty (30) days after the giving
of such notice, to elect that this lease be renewed for the relevant renewal
term upon the same terms and conditions and with the same effect as though such
right had been exercised by the Lessee as in this lease set forth, except that
the Lessee shall not be the lessee in said renewal lease and shall have no
obligations thereunder. The lessee in said renewal lease may be a designee or
nominee of, or a corporation created by or for the benefit of, the holder of any
such mortgage, or the Trustee under any such deed of trust or the holder or
holders of bonds or other evidence of indebtedness issued and outstanding
thereunder. The lessee in said renewal lease shall assume all the obligations of
the Lessee under this lease, and if at the date of the commencement of the term
of said renewal lease there is existing or continuing any default upon the part
of the Lessee hereunder in the performance of any of the covenants, conditions,
limitations or agreements of this lease, said renewal lease shall also contain
an express covenant and agreement upon the part of the lessee therein to proceed
promptly and with all due diligence to cure any such default, and failure of the
lessee so to cure any such default within the time and under the conditions as
provided in said renewal lease shall be deemed a cause of default thereunder;
provided, however, that if any such default shall consist of the failure to pay
a sum of money only, then it shall be a condition to the commencement of the
term of said renewal lease that said sum be paid with interest as in this lease
provided on or prior to the date of the commencement of the term of said renewal
lease. If the lessee of the renewal lease shall be a designee or nominee of, or
a corporation created by or for the benefit of, the holder of any such mortgage
or the Trustee under any such
57
deed of trust or the holder or holders of bonds or other evidence of
indebtedness issued and outstanding thereunder, the Lessor agrees that said
holder of said mortgage or said Trustee under said deed of trust or the holder
or holders of any of said bonds or other evidence of indebtedness, as the case
may be, shall in no event be liable for any obligations undertaken or assumed by
the lessee under said renewal lease, and the Lessor agrees to look solely to
said lessee under said renewal lease and not to the holder of said mortgage or
to the Trustee under said deed of trust, or to the holder or holders of said
bonds or other evidence of indebtedness, as the case may be, in respect of any
liability of any description assumed or agreed to by said lessee under said
renewal lease.
If the Lessee shall sublet the whole or substantially all of the demised
premises, the provisions of the immediately preceding paragraph of this
Paragraph Twelfth applicable to the holder of any such mortgage or the Trustee
under any such deed of trust shall (to the extent permitted by such sublease) be
applicable to the sublessee, to a leasehold mortgagee (including in said term a
Trustee of a deed of trust) of the sublease, to any lessee (herein called a
subsublessee) to which said sublessee shall further sublet the whole or
substantially all of the demised premises and to a leasehold mortgagee of such
subsublease. In the event that any sublessee or any leasehold mortgagee of any
sublease or any subsublessee or any leasehold mortgagee of any subsublease shall
be entitled to exercise the rights of the holder of a mortgage or the Trustee of
a deed of trust referred to in said immediately preceding paragraph, and if by
the date fixed by the thirty (30) day notice specified in said paragraph more
than one election to renew shall have been received by the Lessor, priority
shall be given, regardless of the order in which such elections shall have been
made or received, to said holder or Trustee if it shall make such election, then
to any sublessee
58
making such election, then to any leasehold mortgagee of a sublease making such
election, then to any subsublessee making any such election and then to any
leasehold mortgagee of a subsublease making such election.
Wherever in this Paragraph Twelfth or in Paragraph Thirteenth or Paragraph
Fourteenth hereof it shall be provided that the minimum annual Ground Rental for
any renewal term shall be $390.000 or, as the case may be, the annual Ground
Rental payable during the preceding term, the minimum annual Ground Rental so
specified shall be adjusted to give effect to any reduction in the Ground Rental
during the preceding term resulting from the taking of any portion of the
demised premises by eminent domain.
THIRTEENTH: (1) That if upon the expiration of the term of this lease, this
lease shall be renewed for a first renewal term as provided in Paragraph Twelfth
hereof, then said renewal lease to be executed in that event shall provide that
upon the expiration of the term of said first renewal lease the Lessee (provided
that there then exists no uncured default on the Lessee's part to be performed
thereunder and with respect to which default a notice has been served by the
Lessor upon the Lessee in accordance with the provisions of said renewal lease
relating thereto), shall have the right, not earlier than two years and not
later than six months prior to the expiration date of said first renewal term,
to serve upon the Lessor a notice in writing to the effect that the Lessee
elects that this lease shall again be renewed for the further term of twenty-one
years from the expiration date of the first renewal term of this lease. In the
event that (no such uncured default existing) the Lessee shall elect again to
renew this lease and shall serve notice of such election as aforesaid, then upon
the expiration of the first renewal term, a second renewal lease shall be
executed by and between the parties hereto, whereby the Lessor
59
shall let unto the Lessee, and the Lessee shall take and hire from the Lessor,
the parcel of land above described, with the exceptions and reservations above
set forth, for the term of twenty-one years from the expiration date of the
first renewal term, subject to the rights of the Lessor and the Railroad
Companies, their and each of their successors and assigns, in and to the use and
possession of the portions of the parcel of land above described excepted and
reserved as aforesaid, all as herein provided, and at the annual Ground Rental
of Three Hundred Ninety Thousand Dollars ($390,000.00), or such larger amount as
shall be fixed as hereinafter provided in Paragraph Fourteenth hereof, and at
the other additional rentals herein contained and upon the other terms,
covenants, conditions, limitations and agreements herein contained (including
the last paragraph of Paragraph Twelfth hereof), except that said renewal lease
shall provide that upon the expiration of said second renewal term the Lessee
shall have the right to require one further renewal as provided in sub-division
(2) of this Paragraph Thirteenth.
(2) That if upon the expiration of the first renewal term of this lease,
this lease shall be renewed for a second renewal term as provided in
sub-division (1) of this Paragraph Thirteenth, then said renewal lease to be
executed in that event shall provide that upon the expiration of the term of
said second renewal lease the Lessee (provided that there exists no uncured
default on the Lessee's part to be performed thereunder and with respect to
which default a notice has been served by the Lessor upon the Lessee in
accordance with the provisions of said renewal lease relating thereto) shall
have the right, not earlier than two years and not later than six months prior
to the expiration date of said second renewal term, to serve upon the Lessor a
notice in writing to the effect that the Lessee elects that this lease shall
again be renewed for the further term of twenty-one
60
years from the expiration date of the second renewal term of this lease. In the
event that (no such uncured default existing) the Lessee shall elect again to
renew this lease and shall serve notice of such election as aforesaid, then upon
the expiration of the second renewal term, a third renewal lease shall be
executed by and between the parties hereto, whereby the Lessor shall let unto
the Lessee, and the Lessee shall take and hire from the Lessor, the parcel of
land above described, with the exceptions and reservations above set forth, for
the term of twenty-one years from the expiration date of the second renewal
term, subject to the rights of the Lessor and the Railroad Companies, their and
each of their successors and assigns, in and to the use and possession of the
portions of the parcel of land above described excepted and reserved as
aforesaid, all as herein provided, and at the annual Ground Rental equal to the
annual Ground Rental payable during the second renewal term, or such larger
amount as shall be fixed as hereinafter provided in Paragraph Fourteenth hereof
and at the other additional rentals herein contained and upon the other terms,
covenants, conditions, limitations and agreements herein contained (including
the last paragraph of Paragraph Twelfth hereof), except that said renewal lease
shall provide that upon the expiration of said third renewal term the Lessee
shall have no right to require a further renewal lease.
FOURTEENTH: That in case of the renewal of this lease for a second renewal
term, as provided in Paragraph Thirteenth (1) hereof, if the Lessor shall be of
the opinion that the annual Ground Rental of Three Hundred Ninety Thousand
Dollars ($390,000.00) is less than the proper annual Ground Rental to be paid by
the Lessee during the second renewal term, or in case of the renewal of this
lease for a third renewal term, as provided in Paragraph Thirteenth (2) hereof,
if the Lessor shall be of the opinion that the annual Ground Rental payable
during the
61
second renewal term is less than the proper annual Ground Rental to be paid by
the Lessee during the third renewal term, then the Lessor shall, in either such
case, at least four months prior to the expiration date of the renewal term
then expiring, notify the Lessee in writing of the annual sum which in the
opinion of the Lessor would be the proper annual Ground Rental during the
renewal term about to be entered upon. If the Lessee shall not, within thirty
days after the service of such notice, advise the Lessor in writing that the
annual Ground Rental so named by the Lessor is unsatisfactory, then the annual
Ground Rental so named by the Lessor shall be the annual Ground Rental payable
during the renewal term about to be entered upon. If the Lessee shall, within
the thirty days aforesaid, notify the Lessor in writing that the annual Ground
Rental so named by the Lessor is unsatisfactory, then the annual Ground Rental
payable during the renewal term about to be entered upon shall be determined as
hereinafter in this Paragraph provided.
If the Lessee shall, within the thirty days aforesaid, notify the Lessor in
writing that the annual Ground Rental named by the Lessor is unsatisfactory,
then the full and fair value of the parcel of land above described considered as
unimproved at the commencement of the renewal term about to be entered upon
shall be determined by three arbitrators, one appointed by the Lessor, one
appointed by the Lessee and the third by the arbitrators so appointed, or in
case of the failure of the arbitrators so appointed to agree upon such third
arbitrator within twenty days after their appointment, then such third
arbitrator shall be appointed by the person who is then Presiding Justice of the
Appellate Division of the Supreme Court of the State of New York for the First
Department, or, in case said Appellate Division shall cease to be, by the person
who is then the Senior Justice in point of service of the body exercising the
functions now exercised by such Appellate Division, upon the application of
either of the parties
62
hereto upon reasonable notice to the other party; in case the person who shall
be such Presiding Justice (or Senior Justice) shall decline to make such
appointment, then such third arbitrator shall be appointed by such one of the
other Justices of the Appellate Division (or body exercising the functions
thereof) as shall consent to make such appointment, application being made to
said Justices as aforesaid in the order of seniority of service in said Court.
In case either of the parties hereto shall fail to appoint an arbitrator as
aforesaid for the period of twenty days after written notice from the other
party to make such appointment, then the arbitrator appointed by the party not
in default shall appoint the second arbitrator, and the two so appointed shall
select the third arbitrator. The arbitrators on their appointment, after having
been duly sworn to perform their duties with impartiality and fidelity, shall
proceed with all reasonable dispatch to appraise the full and fair value of the
parcel of land above described considered as unimproved (in making such
appraisal, however, the fact that the excepted portions of said parcel of land
are used or are susceptible of use for railroad purposes shall not be deemed to
contribute to the value of said parcel of land considered as unimproved), and
the amount fixed by said arbitrators or by a majority of them as the value of
said parcel of land considered as unimproved as of the time of deciding such
arbitration as aforesaid, or the date of the beginning of the renewal term about
to be entered upon, whichever occurs first, shall be binding and conclusive upon
the parties hereto as the true value of said parcel of land considered as
unimproved, for the purpose of determining the annual Ground Rental payable
hereunder during the renewal term in question. The Lessor and the Lessee shall
each pay the expense of the arbitrator appointed by or for such party, and the
other necessary expenses and costs of any arbitration hereunder shall be borne
equally by the parties hereto.
In case five per centum of the value of said parcel of land above
described, as such value is determined by the arbitrators
63
in respect of the second renewal term, shall be in excess of the sum of Three
Hundred Ninety Thousand Dollars ($390,000.00), the annual Ground Rental payable
hereunder during the second renewal term shall be such annual sum as will equal
five per centum of the value of said parcel of land as fixed by said arbitrators
as aforesaid, and shall be payable in equal monthly installments in advance, and
in case five per centum of the value of said parcel of land as fixed by said
arbitrators as aforesaid shall be equal to or less than the sum of Three Hundred
Ninety Thousand Dollars ($390,000.00), the annual Ground Rental payable
hereunder during the second renewal term shall be the annual sum of Three
Hundred Ninety Thousand Dollars ($390,000.00) and shall be payable as above
provided.
In case five per centum of the value of said parcel of land above
described, as such value is determined by the arbitrators in respect of the
third renewal term, shall be in excess of the annual Ground Rental payable
during the second renewal term, the annual Ground Rental payable hereunder
during the third renewal term shall be such annual sum as will equal five per
centum of the value of said parcel of land as fixed by said arbitrators as
aforesaid, and shall be payable in equal monthly installments in advance, and in
case five per centum of the value of said parcel of land as fixed by said
arbitrators as aforesaid shall be equal to or less than the annual Ground Rental
payable during the second renewal term, the annual Ground Rental payable
hereunder during the third renewal term shall be such annual sum as will equal
the annual Ground Rental payable during the second renewal term and shall be
payable as above provided.
FIFTEENTH: That the Lessee on paying the Ground Rental and the additional
rentals and observing and performing the covenants, conditions, limitations and
agreements herein contained on the part of the Lessee to be observed and
performed, all as herein provided, shall and
64
may peaceably and quietly have, hold and enjoy the demised premises for the term
aforesaid, subject as herein before provided; and the Lessor covenants and
agrees to comply with all the obligations upon it under its grant from The New
York Central Railroad Company.
SIXTEENTH: That any notice required to be given to the Lessee under the
terms of this lease may be given by delivering such notice to an officer of the
Lessee or by the mailing of such notice by registered mail to the Lessee,
addressed to the Lessee at the last address of the Lessee furnished by it to the
Lessor for that purpose, or in case of the failure of the Lessee to furnish such
address, then addressed to the Lessee at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx City,
and in all cases where a copy of such notice is required to be given to the
holder of any mortgage and the Trustee of any deed of trust, if any there be,
such notice shall be given to such holder or Trustee and to any sublessee and
any subsublessee and to any leasehold mortgagee of any sublease or subsublease,
if any there be, by registered mail, addressed to each of said parties at the
last address furnished by each of them, to the Lessor for such purpose.
That any notice required to be given to the Lessor under the terms of this
lease may be given either by delivering such notice to the president, a vice
president, the secretary or the treasurer of the Lessor at 000 Xxxxxxxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxxx, Xxxx of New York, if any such officer of the Lessor can be
readily found at such address, or if such officer cannot be readily found, by
the mailing of such notice by registered mail to the Lessor, addressed to the
Lessor at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx City, and notice given as aforesaid to
the Lessor shall be sufficient service of any such notice hereunder.
SEVENTEENTH: That the lease between the Lessor and Eastern Offices, Inc.,
dated July 30, 1925, as heretofore modified and extended as above recited, shall
be and
65
hereby is declared to be further modified and extended as provided in this
instrument, so that from and after the date hereof this instrument shall be
deemed to express all the terms, covenants, conditions, limitations and
agreements in accordance with which the demised premises shall be held by the
Lessee under lease from the Lessor.
EIGHTEENTH: This agreement shall inure to the benefit of and be binding
upon the successors and assigns of the respective parties hereto; provided,
however, that no assignment hereof shall be made by the Lessee except upon the
conditions hereinabove provided.
IN WITNESS WHEREOF, the parties hereto have caused the execution of this
agreement as of the day and year first above written.
NEW YORK STATE REALTY AND TERMINAL COMPANY
By X.X. XXXXX
VICE PRESIDENT
Attest:
X. X. XXXXXX
ASSISTANT SECRETARY
XXXX & XXXXX, INC.
By XXXXXX X. XXXXXX
SENIOR VICE PRESIDENT
Attest:
XXXXX X. XXXX
SECRETARY
GRAYSLEE CORPORATION
By XXXXXX X. XXXXXX
SENIOR VICE PRESIDENT
Attest:
XXXXX X. XXXX
SECRETARY
66
STATE OF NEW YORK, )
COUNTY OF NEW YORK, ) ss.:
On this 30th day of December, 1957, before me personally came X. X. XXXXX,
to me known and known to me to be Vice President of the NEW YORK STATE REALTY
AND TERMINAL COMPANY, who being by me duly sworn deposes and says: that he
resides at Orchard Drive, Greenwich, Conn.; that he is Vice President of the NEW
YORK STATE REALTY AND TERMINAL COMPANY, one of the corporations described in
and which executed the foregoing instrument, and knows the corporate seal
thereof; that the seal affixed to the foregoing instrument is the corporate
seal of the NEW YORK STATE REALTY AND TERMINAL COMPANY, and was affixed thereto
by authority of the Board of Directors of said corporation, and that he signed
his name thereto as Vice President by like authority.
XXXXXXX X. XXXXX
[SEAL]
00
XXXXX XX XXX XXXX, )
XXXXXX XX XXX XXXX, ) ss.:
On this 30th day of December, 1957, before me personally came XXXXXX X.
XXXXXX, to me known and known to me to be Senior Vice President of XXXX & XXXXX,
INC., who being by me duly sworn deposes and says: that he resides at 00 Xxxxxx
Xxxx, Xxxx Xxxxxxxxxx, N. Y.; that he is Senior Vice President of XXXX & XXXXX,
INC., one of the corporations described in and which executed the foregoing
instrument, and knows the corporate seal thereof; that the seal affixed to the
foregoing instrument is the corporate seal of XXXX & XXXXX, INC., and was
affixed thereto by authority of the Board of Directors of said corporation, and
that he signed his name thereto as Senior Vice President by like authority.
XXX X. XXXXXX
[SEAL]
00
XXXXX XX XXX XXXX, )
XXXXXX XX XXX XXXX, ) ss.:
On this 30th day of December, 1957, before me personally came XXXXXX X.
XXXXXX, to me known and known to me to be Senior Vice President of GRAYSLER
CORPORATION, who being by me duly sworn deposes and says: that he resides at 00
Xxxxxx Xxxx, Xxxx Xxxxxxxxxx, N. Y.; that he is Senior Vice President of
GRAYSLER CORPORATION, one of the corporations described in and which executed
the foregoing instrument, and knows the corporate seal thereof; that the seal
affixed to the foregoing instrument is the corporate seal of GRAYSLER
CORPORATION, and was affixed thereto by authority of the Board of Directors of
said corporation, and that he signed his name thereto as Senior Vice President
by like authority.
XXX X. XXXXXX
[SEAL]
69
CONSENT.
The New York Central Railroad Company, a corporation of the State of New
York, having its principal office at 575 Broadway, in the City of Albany, State
of New York, does hereby consent to the execution of the foregoing modified
agreement of lease and to the terms thereof which modified agreement of lease is
hereby identified as the instrument referred to as the Ground Lease in the
Grant of Term, dated December 30, 1957, made by The New York Central Railroad
Company to New York State Realty and Terminal Company.
Dated, New York, December 30, 1957.
THE NEW YORK CENTRAL RAILROAD COMPANY
BY X. X. XXXX
VICE PRESIDENT
Attest:
X. X. XXXXXX
ASSISTANT SECRETARY
70
STATE OF NEW YORK, )
COUNTY OF NEW YORK, ) ss.:
On this 30th day of December, 1957, before me personally came X. X. Xxxx,
to me known and known to me to be Vice President of THE NEW YORK CENTRAL
RAILROAD COMPANY, who being by me duly sworn deposes and says: that he resides
at 00 Xxxxx Xxxx, Xxxxxxxxxx, X. X.; that he is Vice President of THE NEW YORK
CENTRAL COMPANY, the corporation described in and which executed the foregoing
instrument, and knows the corporate seal thereof; that the seal affixed to the
foregoing instrument is the corporate seal of THE NEW YORK CENTRAL RAILROAD
COMPANY, and was affixed thereto by authority of the Board of Directors of said
corporation, and that he signed his name thereto as Vice President by like
authority.
XXXXXXX X. XXXXX
[SEAL]
[GRAPHIC]
[GRAPHIC]
