Exhibit 10.3
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Lease No. WT-2887-B-84(985)
Supplement No. 2
SUPPLEMENTAL AGREEMENT
THIS AGREEMENT, made as of July 1, 1994, by and between THE PORT
AUTHORITY OF NEW YORK AND NEW JERSEY (hereinafter called the "Port Authority")
and EURO BROKERS, INC. (hereinafter called the "Lessee"),
WITNESSETH, That:
WHEREAS, the Port Authority and the Lessee heretofore and as of
September 10, 1992 entered into an agreement of lease identified by the above
Port Authority Lease Number (which agreement of lease as the same has heretofore
been supplemented and amended is hereinafter called "the Lease") covering
premises at the Port Authority World Trade Center, in the Borough of Manhattan,
City, County and State of New York, as more particularly described in the Lease;
and
WHEREAS, the Lessee desires to add to the premises under the Lease, and
to amend the same in certain other respects;
NOW, THEREFORE, for and in consideration of the covenants and mutual
agreements herein contained, the Port Authority and the Lessee hereby agree as
follows:
1. In addition to the premises heretofore let to the Lessee under the
Lease, the letting as to which shall continue in full force and effect subject
to all of the terms, provisions, covenants and conditions of the Lease, the Port
Authority hereby lets to the Lessee and the Lessee hereby hires and takes from
the Port Authority at the Port Authority World Trade Center in the Borough of
Manhattan, City, County and State of New York the space shown in diagonal
hatching on a sketch annexed hereto marked "Exhibit A-2" and hereby made a part
hereof, together with the fixtures, improvements and other property of the Port
Authority located or to be located therein or thereon, the said space together
with the said fixtures, improvements and other property (hereinafter
collectively referred to as "Area A-2") to be and become a part of the premises
under the
Lease, from and after 12:01 o'clock A.M. on September 1, 1994 (such date being
hereinafter referred to as "the Effective Date") and continuing until 11:59
o'clock P.M. on August 31, 2004. The Port Authority and the Lessee hereby
acknowledge that the aforesaid Area A-2 constitutes non-residential real
property.
2. The Lessee shall use Area A-2 for the purposes specified in Section
3 of the Lease and for no other purpose whatsoever.
3. During the period from the Effective Date through the balance of the
term of the letting of Area A-2 hereunder, and in addition to the basic rental
payable by the Lessee under the Lease, the Lessee shall pay to the Port
Authority a basic rental for Area A-2 at the annual rate of Four Hundred
Seventy-six Thousand Six Hundred Forty Dollars and No Cents ($476,640.00)
payable in the amount of Twenty-one Thousand Seven Hundred Eighty-one Dollars
and Ninety-four Cents ($21,781.94) on October 15, 1994, and in advance in equal
monthly installments of Thirty-nine Thousand Seven Hundred Twenty Dollars and No
Cents ($39,720.00) each on the first day of November, 1994, and on the first day
of each calendar month thereafter throughout such period.
4. For the period from and after the Effective Date through the balance
of the term of the letting under the Lease, in addition to the basic rental
payable for Area A-2 hereunder the Lessee shall pay to the Port Authority
additional basic rental for Area A-2 in accordance with the provisions of the
schedule annexed hereto, marked "Schedule A-2", and hereby made a part hereof.
The word "premises" as used in said Schedule A-2 shall be deemed to refer solely
to Area A-2.
5. Effective from and after the Effective Date, the Port Authority
shall provide cleaning services in the entire premises in accordance with the
provisions of the Schedule B attached hereto and hereby made a part hereof.
Effective from and after the Effective Date, the Schedule B attached to the
Lease shall be deemed deleted.
6. (a) From and after the Effective Date, the Port Authority will
furnish to the Lessee in Area A-2, for operation of the equipment comprising
special air cooling facilities installed by the Lessee therein, condenser water
(in addition to that provided pursuant to Section 43 of the Lease) sufficient
for a rated capacity not to exceed Twenty-four and Fifty-five hundredths (24.55)
tons, and the Lessee
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agrees to pay to the Port Authority for such additional condenser water an
annual charge at the rate of One Thousand Ninety-one Dollars and Ninety-seven
Cents ($1,091.97) per ton of the rated cooling capacity of the Lessee's
equipment. In the event of any changes made in the Lessee's air cooling
equipment or the installation thereof, the Lessee shall supply to the Port
Authority such certifications of rated capacity as the Port Authority shall
request, including certifications of third parties. The annual charge for
additional condenser water shall be payable by the Lessee in advance in equal
monthly installments and shall be payable at the same time, in the same manner
and shall be recoverable with like remedies as if it were a part of the basic
rental reserved under this Agreement.
(b) The charges for condenser water stated in paragraph (a) above
shall be subject to increase from time to time as follows: "Wage rate" as used
in this paragraph shall mean the hourly straight time wage rate for Engineers as
that wage rate is established from time to time by collective bargaining
agreement between the Realty Advisory Board on Labor Relations, Incorporated,
acting on behalf of various building owners and Local 94 of the International
Union of Operating Engineers, AFL-CIO, and "basic wage rate" shall mean the wage
rate in effect on January 1, 1994. From and after each wage rate established
from and after January 1, 1994, the Lessee shall pay annual charges in addition
to the charges for additional condenser water stated in paragraph (a) above,
such additional charge for additional condenser water shall be at an annual rate
per ton equal to $2.50 for each one percent (1%), or major fraction thereof,
that the wage rate so established exceeds the basic wage rate. If either the
Realty Advisory Board on Labor Relations, Incorporated, or Local 94 of the
International Union of Operating Engineers, AFL-CIO, shall cease to exist or a
collective bargaining agreement shall cease to be negotiated between the Realty
Advisory Board on Labor Relations, Incorporated and Local 94 of the
International Union of Operating Engineers, AFL-CIO, then the wage rate to be
used for computing increases in the said charge shall be the wage rate for
Engineers established under such collective bargaining agreements as the Port
Authority shall select. If the job classification "Engineers" shall be renamed
or abolished, then the Port Authority will select the job classification
performing substantially the same labor functions as Engineers and the wage rate
of the job classification so selected shall be used in computing increases in
the charges provided for herein.
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(c) The furnishing of additional condenser water by the Port
Authority as provided for herein shall be subject to all of the terms,
provisions and conditions of Section 43 of the Lease, except as specifically
stated otherwise herein. Notwithstanding that the Port Authority is obligated to
furnish condenser water as provided in paragraph (a) hereof, the Port Authority
shall have no responsibility whatsoever for conditioning or cooling the air in
that area of Area A-2 served by the air cooling equipment installed by the
Lessee nor for the maintenance therein of any specified temperature or comfort
level, but nothing set forth herein shall relieve the Port Authority of its
obligation to provide ventilation and air cooling in accordance with and subject
to the Provisions of Schedule D attached hereto and hereby made a part hereof.
The Lessee shall and does hereby release the Port Authority from, and shall
indemnify the Port Authority against, any and all claims and demands, losses or
damages (including but not limited to any such occurring to any data processing
or other equipment located in the premises or to any work product thereof)
arising or resulting from the failure to maintain a proper temperature or air
quality in Area A-2, and regardless of whether the same is due to the acts or
omissions of the Port Authority, the Lessee or of others, unless such failure is
due to the negligent acts of the Port Authority.
7. (a) Subject to all the terms, provisions and conditions of Section
42(f), (g), (h) and (i) of the Lease, and notwithstanding the provisions of
Section 42(a)(2) of the Lease, and to the extent that the Lessee's consumption
does not exceed the capacity of feeders, risers or wiring in the building of
which Area A-2 is a part or in Area A-2 (it being the Lessee's sole
responsibility for designing and constructing distribution systems for Area
A-2), the Port Authority will supply to the Lessee electricity solely for
illumination by which is meant the energizing of fluorescent and incandescent
bulbs (to be supplied, paid for and installed by the Lessee) and for the
operation of such machines and equipment as the Port Authority may consent to in
advance and the Lessee shall pay for the same in accordance with the following
provisions of this Section. The total electrical capacity to be provided by the
Port Authority to Area A-2 shall be as set forth in Schedule D attached hereto
and hereby made a part hereof. The quantity of all electricity supplied to the
Lessee in Area A-2 shall be measured by a meter or meters furnished by the Port
Authority for that purpose (such meter or meters to be installed by the Lessee
at its sole cost and expense), and in the event any such meter fails to record
such, the quantity of electricity so
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supplied during any period that a meter is out of service will be considered to
be the same as the quantity supplied during a like period either immediately
before or immediately after such interruption as selected by the Port Authority.
The quantity of such electricity shall be paid for by the Lessee at the greater
of the following rates:
(1) the rates (including the fuel or other adjustment factor, if
any) which the Lessee, under the service classification then
applicable to the Lessee, would be required to pay for the same
quantity of electricity to be used for the same purpose under the same
conditions if the Lessee had purchased such electricity directly from
the public utility company supplying the same to commercial buildings
in the vicinity; or
(2) the Port Authority's cost of obtaining and supplying the same
quantity of electricity.
The Lessee shall pay the cost of such consumption and demand for each such
billing period to the Port Authority upon demand therefor and the same shall be
deemed additional rental collectible in the same manner and with like remedies
as if it were a part of the basic rental reserved hereunder.
(b) Notwithstanding that the Port Authority has agreed to supply
electricity to the Lessee, the Port Authority shall be under no obligation to
provide or continue such service if the Port Authority is prevented by law,
agreement or otherwise from submetering electricity as hereinabove set forth or
elects not to so submeter the same and in any such event the Lessee shall make
all arrangements and conversions necessary to obtain electricity directly from
the public utility company supplying electricity in the vicinity. Also, in such
event, the Lessee shall perform the construction necessary for such conversion
and if any lines or equipment of the Port Authority are with the consent of the
Port Authority used therefor, the Port Authority may make an appropriate charge
therefor to the Lessee based on its costs and expenses for the said lines and
equipment.
8. (a) The Lessee has thoroughly examined and inspected Area A-2 and
has found the same to be in good order and repair and suitable for the Lessee's
operations hereunder and agrees to take Area A-2 in the condition it is in when
vacated by the occupant thereof and turned over to the Lessee by the Port
Authority, and the Port Authority shall have no
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obligation hereunder for finishing work or preparation of Area A-2 for the
Lessee's use. The Lessee agrees to perform at its sole cost and expense, except
as stated in paragraph (f) of this Section 8, all construction and installation
work that it may require to finish off and decorate Area A-2 including the
installation of non-asbestos-containing spray-on fireproofing material in those
areas on the underside of the floor slab immediately above the floor on which
Area A-2 is located where fireproofing material is missing, and the installation
of any floor tiles which are missing in Area A-2 (the said fireproofing material
installation work and installation of floor tiles being hereinafter referred to
as the "Additional Work"). The Lessee acknowledges that facilities for heat,
ventilation and air cooling have heretofore been installed in Area A-2 pursuant
to a certain design configuration, and notwithstanding the provisions of Section
42 of the Lease, the Port Authority makes no representations that such heat,
ventilation and air-cooling shall maintain in Area A-2 an even and comfortable
working temperature, and in the event any alteration to such facilities shall be
required in order to maintain an even and comfortable working temperature the
cost of the same shall be borne by the Lessee. Subject to the foregoing, the
Port Authority represents that the design criteria and capacity of the heat,
ventilation and air cooling system available to the Lessee are as set forth in
Schedule D attached hereto. The Lessee shall submit to the Port Authority for
its approval a construction application in the form supplied by the Port
Authority and containing such terms and conditions as the Port Authority may
include setting forth in detail and by appropriate plans and specifications the
construction and installation work proposed by the Lessee to finish off and
decorate Area A-2 and the manner of and time periods for performing the same,
including, without limitation thereto, the Additional Work. The data to be
supplied by the Lessee shall describe in detail the fixtures, equipment and
systems to be installed by the Lessee including those for the emission, handling
and distribution of heat, air conditioning, domestic hot and cold water and
electrical and other systems and shall show the proposed method of tying in the
same to the utility lines or connections provided by the Port Authority either
on or off Area A-2. The Lessee shall be responsible for retaining all
architectural, engineering and other technical consultants and services as may
be required by the Port Authority and for developing, completing and submitting
detailed plans and specifications for the work. The plans and specifications to
be submitted by the Lessee to the Port Authority shall bear the seal of a
qualified architect or professional engineer and shall be in sufficient
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detail for a contractor to perform the work. The Lessee shall not engage any
contractor or permit the use of any subcontractor unless and until each such
contractor or subcontractor shall have been approved by the Port Authority. The
Lessee shall include in each such contract or subcontract such provisions as the
Port Authority may approve or require including, without limitation thereto,
provisions regarding labor harmony. The Port Authority shall review the
construction application and all plans and specifications furnished by the
Lessee with respect to Area A-2 and will forward its comments on the same to the
Lessee within twenty (20) business days after its receipt thereof provided that
such plans and specifications cover all of the construction and installation
work necessary to finish off and decorate Area A-2, and will review and comment
on any corrected, modified or amended plans and specifications resubmitted to
the Port Authority by the Lessee within ten (10) business days after receipt of
any such resubmission. If the sum of the number of business days actually
required by the Port Authority for the review of each submission and
resubmission of the Lessee's plans and specifications as referred to in this
paragraph shall be in excess of the sum of the number of business days allocated
to each review of the Lessee's submission and resubmission of its plans and
specifications (as referred to in this paragraph), there shall be no
postponement of the date fixed in paragraph (a) of Section 3 of this Agreement
for the commencement of payment of basic rental, but upon completion of the
construction and installation work to be performed by the Lessee hereunder, the
Lessee shall be entitled to a credit against its basic rental obligations next
becoming due under this Agreement in an amount which shall be equal to the
product obtained by multiplying the number of such excess business days by the
sum of One Thousand Fifty-two Dollars and No Cents ($1,052.00). The Lessee
hereby expressly agrees that such rental credit shall be the sole remedy
available to the Lessee in the event the Port Authority fails, within the time
periods provided, to respond to the Lessee's submission or resubmission of its
construction application and plans and specifications. The Lessee hereby assumes
the risk of loss or damage to all of the construction and installation work
prior to the completion thereof and the risk of loss or damage to all property
of the Port Authority arising out of or in connection with the performance of
the construction and installation work. In the event of such loss or damage, the
Lessee shall forthwith repair, replace and make good the construction and
installation work and the property of the Port Authority without cost or expense
to the Port Authority. The Lessee shall itself and shall also require its
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contractors to indemnify and hold harmless the Port Authority, its
Commissioners, officers, agents and employees from and against all claims and
demands, just or unjust, of third persons (including employees, officers and
agents of the Port Authority) arising or alleged to arise out of the performance
of the Lessee's construction and installation work and for all expenses,
including without limitation thereto legal expenses, incurred by it and by them
in the defense, settlement or satisfaction thereof, including without limitation
thereto, claims and demands for death, for personal injury or for property
damage, direct or consequential, whether they arise from the acts or omissions
of the Lessee, of any contractors of the Lessee, of the Port Authority, or of
third persons, or from acts of God or of the public enemy, or otherwise,
excepting only claims and demands which result solely from affirmative willful
or solely from negligent acts done by the Port Authority, its Commissioners,
officers, agents and employees with respect to the construction and installation
work, provided, however, that the Lessee shall not be required to indemnify the
Port Authority where such indemnity would be precluded pursuant to the
provisions of Section 5-322.1 of the General Obligations Law of the State of New
York. The Lessee shall, and shall cause each of its contractors and
subcontractors to obtain and maintain in force such insurance coverage,
including without limitation a contractual liability endorsement covering the
obligations assumed by the Lessee in the three preceding sentences. All work to
be performed by the Lessee hereunder shall be completed in accordance with the
said construction application and final plans and specifications approved by the
Port Authority, shall be subject to inspection by the Port Authority during the
progress of the work and after the completion thereof and the Lessee shall redo
or replace at its own expense any work not done in accordance therewith. Upon
completion of the construction and installation work to be performed by the
Lessee pursuant to the construction application (including the Additional Work)
the Lessee shall deliver to the Port Authority a certificate by an authorized
officer of the Lessee and a certificate by the Lessee's qualified architect or
professional engineer, each certifying that the construction and installation
work and the Additional Work has been performed strictly in accordance with the
construction application and the final plans and specifications approved by the
Port Authority and the provisions of this Agreement and in compliance with all
applicable governmental laws, ordinances, enactments, resolutions, rules,
regulations and orders. The Port Authority shall inspect the construction and
installation work and the Additional Work, and if the
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same has been completed as certified by the Lessee and such architect or
engineer, the Port Authority's General Manager, Planning, Design and
Construction, World Trade Department, shall so certify to the Port Authority and
to the Lessee, subject to the condition that all risks thereafter with respect
to the construction and installation work and any liability therefor for
negligence or other reason shall be borne by the Lessee. The Lessee shall not
use or permit the use of Area A-2 or any portion thereof for any purpose
whatsoever until such certification is received from said General Manager,
Planning, Design and Construction and the Lessee shall not use or permit the use
of Area A-2 or any portion thereof even if such certification is received with
respect to a portion of the construction and installation work if said General
Manager, Planning, Design and Construction states in any such certification that
Area A-2 cannot be used until other specified portions of the construction and
installation work are completed. Upon completion of the work the Lessee shall
supply the Port Authority with "as built" drawings in form and number requested
by the Port Authority. "Business days" as used herein shall mean Mondays to
Fridays, inclusive, legal holidays excepted.
(b) No construction or installation work shall be commenced by the
Lessee until the construction application and plans and specifications referred
to in paragraph (a) above have been finally approved by the Port Authority.
Subject to the foregoing and the provisions of Section 39 of the Lease, Area A-2
shall be available for prior entry by the Lessee on July 1, 1994. The Lessee's
occupancy of Area A-2 for the period from and after July 1, 1994 through the
Effective Date hereunder shall be subject to and in accordance with all of the
terms, covenants and provisions of the Lease and this Agreement except those
relating to rights of user and payment of rental. Payment of rental shall
commence in accordance with the provisions of Section 3 of this Agreement
regardless of whether the Lessee completes the construction and installation
work in Area A-2. In the event of any inconsistency between the provisions of
this Agreement and the construction application, the provisions of this
Agreement shall control.
(c) The Lessee shall be solely responsible for the plans and
specifications used by it, and for the adequacy and sufficiency of such plans
and specifications and all the improvements depicted thereon or covered thereby,
regardless of the consent thereto or approval thereof by the Port Authority or
the incorporation therein of any Port
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Authority requirements or recommendations. The Port Authority shall have no
obligations or liabilities in connection with the performance of the work
performed by the Lessee or on its behalf or the contracts for the performance
thereof entered into by the Lessee. The Lessee shall undertake reasonable
efforts to assure that any warranties extended or available to the Lessee in
connection with the aforesaid work shall be for the benefit of the Port
Authority as well as the Lessee.
(d) Without limiting or affecting any other term or provision of this
Agreement, the Lessee shall be solely responsible for the design, adequacy and
operation of all utility, mechanical, electrical, communications and other
systems installed by the Lessee in Area A-2, and shall do all preventive
maintenance and make all repairs, replacements, rebuilding and painting
necessary to keep such systems and all other improvements, additions and
fixtures, finishes and decorations made or installed by the Lessee (whether the
same involves structural or non-structural work) in the condition they were in
when made or installed except for reasonable wear which does not adversely
affect the watertight condition or structural integrity of the building or
adversely affect the efficient or proper utilization or appearance of any part
of Area A-2.
(e) Title to and property in the construction and installation work and
to all fixtures, equipment and systems (other than trade fixtures and personal
property and the Lessee's telecommunications system) installed pursuant to this
Section and any replacement or replacements thereof shall vest in the Port
Authority upon the construction, installation or replacement thereof and the
Lessee shall execute such necessary documents confirming the same as the Port
Authority may require.
(f) (i) The Port Authority, in connection with the Lessee's performance
of the construction and installation work in Area A-2, excluding the Additional
Work, will pay to the Lessee an amount equal to the lesser of (1) the cost of
such construction and installation work performed in Area A-2, excluding the
Additional Work, or (2) the sum of Six Hundred Fifty-four Thousand Forty Dollars
and No Cents ($654,040.00) (such lesser amount being hereinafter referred to as
the "Area A-2 Finishing Allowance"). The Area A-2 Finishing Allowance will be
paid to the Lessee as follows: the Lessee, at such single time during the
performance of the construction work as the Lessee shall elect, shall deliver to
the Port Authority a certificate signed by a responsible
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officer of the Lessee which certificate shall certify the total payments made by
the Lessee that are properly includible in the Lessee's "cost" (as hereinafter
defined) of performing the construction and installation work for the period
from the commencement of the construction and installation work through the date
thereof and which shall also certify that the construction and installation work
completed during such period by the Lessee has been performed in accordance with
the terms of this Agreement and the approved Construction Application applicable
to Area A-2. Within fifteen (15) days after the delivery of such certificate by
the Lessee, the Port Authority shall pay to the Lessee the lesser of (1) ninety
percent (90%) of the total payments actually made by the Lessee for work
actually performed in Area A-2, as certified by the Lessee or (2) the sum of
Five Hundred Eighty-eight Thousand Six Hundred Thirty-six Dollars and No Cents
($588,636.00). Upon completion of all of the construction and installation work
in Area A-2 in accordance with the approved Construction Application and receipt
by the Port Authority of the certificates of the Lessee and the Lessee's
architect or engineer described in subparagraph (a) of this paragraph with
respect to Area A-2, and the delivery by the Port Authority to the Lessee of the
subsequent certificate of the Port Authority's Assistant Director, Physical
Facilities, World Trade Department, the Lessee shall deliver to the Port
Authority a full statement of the cost thereof (as "cost" is hereinafter
defined), certified by a responsible officer of the Lessee. After examination
and approval of such certified statement and after such further examination of
the records and books of account of the Lessee by the Port Authority, the Port
Authority will finally determine the Lessee's "cost" of the construction and
installation work performed in Area A-2, and the amount of the Area A-2
Finishing Allowance, and if such final determination discloses that the payment
previously made by the Port Authority pursuant to this paragraph (f) exceeds the
total of the Area A-2 Finishing Allowance, the Lessee shall repay to the Port
Authority the amount of such excess within seven (7) business days of its
receipt of notice from the Port Authority setting forth the amount thereof; if
the final determination discloses that a part of the Area A-2 Finishing
Allowance remains unpaid, the Port Authority will pay the same to the Lessee
within fifteen (15) business days after the date of the said final
determination. "Cost" as used herein shall mean the sum of direct labor and
material costs and contract costs for the purchase and installation of fixtures,
equipment and other finishing and decorating work. In no event whatsoever shall
expenses, as defined and computed in this paragraph, include any expenses,
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outlays or charges whatsoever by or for the account of the Lessee for or in
connection with any materials unless such are actually and completely installed
in and or made to Area A-2, nor shall "cost" include the cost of any materials
secured by liens, mortgages, other encumbrances or conditional bills of sale,
nor shall "cost" include any payment made to organizations which are owned by or
in common ownership with the Lessee.
(ii) Upon receipt by the Port Authority of the certificated of the
Lessee and the Lessee's architect or engineer described in paragraph (a) of this
Section and the delivery by the Port Authority to the Lessee of the subsequent
certificate of the Port Authority's Assistant Director, Physical Facilities,
World Trade Department also described in said paragraph (a), the Port Authority
will pay to the Lessee, notwithstanding anything to the contrary set forth in
paragraph (a) of this Section, the negotiated sum of Thirty-nine Thousand Seven
Hundred Fifteen Dollars and No Cents ($39,715.00) as and for the cost of the
Additional Work.
9. Upon the terms and conditions hereinafter set forth, and subject to
the Lessee validly exercising the right of termination set forth in Section 50
of the Lease, the Lessee shall have the right to terminate this Agreement and
the letting of Area A-2 hereunder effective as of the same date to be specified
by the Lessee in the notice to the Port Authority pursuant to said Section 50 of
the Lease:
(a) Not later than fifteen (15) calendar months prior to
September 11, 2002, the Lessee shall give to the Port Authority firm
and unconditional notice of its intention to terminate this Agreement,
and the letting of Area A-2 hereunder, and such notice shall be
accompanied by a certified check or cashier's check in the amount of
One Hundred Eighty-two Thousand Five Hundred One Dollars and No Cents
($182,501.00) payable to the Port Authority and drawn on a banking
institution having an office within the Port of New York District;
(b) No notice of termination by the Lessee pursuant to paragraph
(a) above shall be effective if (i) the Lessee is in default in the
performance or observance of any term, provision or condition of the
Lease or of this Agreement beyond any applicable period to cure such
default, either
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on the date of the giving of such notice or on the intended or
effective date of the termination provided for therein,(ii) if on
either of such dates the Lessee is under notice of termination by the
Port Authority or (iii) the Lessee fails to pay the amount required in
paragraph (a) of this Section 9 at the time of the giving of such
notice; and
(c) Any effective notice of termination given by the Lessee in
accordance with the provisions of this Section 9 shall have the same
force and effect as if the effective date of termination stated in
such notice were the date originally fixed herein for the expiration
of the term of the letting of Area A-2 under this Agreement.
(d) If the Port Authority has received any payment in connection
with an ineffective notice of termination, said payment may be
retained by the Port Authority and applied to any sums then owing to
the Port Authority under any of the provisions of this Agreement.
10. (a) The Lessee shall have the right to extend the term of the
letting of Area A-2 hereunder for the period commencing upon the expiration date
of the term of the letting of Area A-2 hereunder, provided that the Lessee shall
give unconditional written notice to the Port Authority of its election to do so
not later than ninety (90) days prior to the expiration of the term of the
letting of Area A-2 hereunder, and provided further that on the date of the
giving of the said notice and on the effective date thereof the Lessee is not in
default in the performance or observance of any term, provision or condition of
this Agreement, and that the Lessee has not been served with a notice of
termination of this Agreement by the Port Authority and this Agreement is then
in full force and effect.
(b) In the event the Lessee shall give to the Port Authority the
notice referred to in paragraph (a) above, the annual rental rate for Area A-2
during the extended term shall be the fair rental value of Area A-2 at the time
the aforesaid notice is given. The Port Authority shall, not later than sixty
(60) days subsequent to its receipt of such notice from the Lessee, advise the
Lessee in writing of the annual basic rental to be payable by the Lessee during
the extension period. In the event the Port Authority elects to set forth in its
notice to the Lessee a fair rental value
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rental for Area A-2 pursuant to the provisions of paragraph (b) of this Section
10, and in the further event the Lessee concludes that the annual basic rental
so stated in the Port Authority's notice is not the fair rental value for Area
A-2 for the extension period, the Lessee shall, within thirty (30) days after
the date of the Port Authority's said notice, advise the Port Authority in
writing that it has so concluded and request arbitration with respect thereto.
Such arbitration shall be by three arbitrators, one to be appointed by the Port
Authority, one to be appointed by the Lessee and the third to be appointed by
the arbitrators so appointed. The arbitration shall be pursuant to the
then-rules of the American Arbitration Association or by a successor
organization, and the question to be answered by the arbitrators shall be:
"Is the annual basic rental established by the Port
Authority the fair rental value for Area A-2?"
If the arbitrator's decision is in the affirmative (or if the Lessee does not
contest the rental rate after notice thereof from the Port Authority) then from
and after the first day of the extended term of the letting hereunder the Lessee
shall pay to the Port Authority such annual basic rental in equal monthly
installments on the first day of the extension period hereunder and on the first
day of each calendar month thereafter throughout the succeeding period, and if
the first day of the extension period hereunder is other than on the first day
of a calendar month the monthly installment of basic rental for any period of
less than a full calendar month during the said extension period shall be
prorated on a daily basis. If the decision of the arbitrators is that the annual
basic rental stated in the Port Authority's notice is not the fair rental value
for Area A-2, the arbitrators shall thereupon determine the fair rental value
for Area A-2, and in such event from and after the first day of the extended
term of the letting hereunder the Lessee shall pay to the Port Authority an
annual basic rental for Area A-2 equal to the fair rental value so determined by
the arbitrators; which annual basic rental shall be payable in equal monthly
installments in advance as above provided. In the event the annual basic rental
has not been determined as herein provided prior to the commencement of the
extended term of the letting hereunder, the Lessee shall continue to pay the
monthly installments of basic rental at the rate theretofore in effect, and upon
determination of the annual basic rental pursuant to the provisions of this
Section, the Lessee shall within thirty (30) days thereafter pay any amounts due
to the Port Authority arising out of the excess (if any) of the
14
monthly installments of the annual basic rental as so determined over the
monthly installments thereof actually paid by the Lessee for such period. In
addition to the basic rental payable as provided in this paragraph (b) the
Lessee shall, from and after the commencement of the extended term of the
letting hereunder, continue to pay additional basic rental in accordance with
the provisions of the Schedule A-2 attached hereto. The cost of the aforesaid
arbitration shall be borne equally by the Port Authority and the Lessee.
11. The Lessee represents and warrants that no broker has been
concerned in the negotiation of this Agreement or the letting of Area A-2, and
that there is no broker who is or may be entitled to be paid a commission in
connection therewith. The Lessee shall indemnify and save harmless the Port
Authority of and from any and all claims for commission or brokerage made by any
and all persons, firms or corporations whatsoever for services in connection
with the negotiation and execution of this Agreement or the letting of Area A-2
hereunder.
12. Neither the Commissioners of the Port Authority nor any of them,
nor any officer, agent or employee thereof, shall be charged personally by the
Lessee with any liability, or held liable to it under any term or provision of
this Agreement or because of its execution or attempted execution or because of
any breach thereof.
13. As hereby amended, all of the terms, covenants, provisions,
conditions and agreements of the Lease shall be and remain in full force and
effect.
14. This Agreement and the Lease which it supplements constitute the
entire agreement between the Port Authority and the Lessee on the subject
matter, and may not be changed, modified, discharged or extended except by
instrument in writing duly executed on behalf of both the Port Authority and the
Lessee. The Lessee agrees that no representations or warranties shall be binding
upon the Port Authority unless expressed in writing in the Lease or in this
Agreement.
15
IN WITNESS WHEREOF, the Port Authority and the Lessee have executed
these presents, as of the day and year first above written.
ATTEST: THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY
/s/ The Port Authority of
By New York and New Jersey
---------------------- --------------------------------
Assistant Secretary
[Title] Director
------------------------
[Seal]
ATTEST: EURO BROKERS, INC.
By /s/ Xxxxxx Xxxxxxxx
---------------------- --------------------------------
Secretary
[Title] President
-------------------------
[Seal]
16
[GRAPHIC]
Exhibit A-2
SCHEDULE A-2
1. For the purposes of this Schedule A-2, the following provisions
shall apply:
(a) "Taxes" shall mean real estate taxes and assessments which may
be imposed from time to time by the United States of America, the State of New
York or any municipality or other governmental authority, upon the Port
Authority with respect to the buildings, structures, facilities or land at the
World Trade Center or with respect to the rentals or income therefrom in lieu of
or in addition to any tax or assessment which would otherwise be a real estate
tax or assessment and taxes shall include any payments in lieu of real estate
taxes or assessments which may be agreed upon between the Port Authority and any
of the foregoing governmental authorities, other than payments in lieu of taxes
described in paragraph (b) below.
(b) "Payments in lieu of taxes" shall mean such payments as the
Port Authority has agreed to pay the City of New York under an agreement dated
1967 as it may have been or may be thereafter supplemented or amended
(hereinafter called "the City Agreement").
(c) The "annual per rentable square foot factor" referred to in
this Schedule was initially fixed at $1.25 in the City Agreement and provision
was made in paragraph 7(3) of the City Agreement for changes therein from time
to time to reflect changes in the tax rate and changes in assessed valuations.
(d) "Tax base" shall mean the annual per rentable square foot
factor finally established to be the anual per rentable square foot factor to be
used in computing payments in lieu of taxes for the tax year beginning July 1,
1994.
(e) "Tax year" shall mean the twelve-month period established by
The City of New York as a tax year for real estate tax purposes.
(f) "Wage rate" shall mean the cost for an hour's work by a xxxxxx
engaged to work a 40 hour work week in a Class A office building in the City of
New York which hourly cost shall be limited solely to the hourly wage rate for
porters as that rate is established from time to time by collective bargaining
agreement between the Realty Advisory
Page 1 of Schedule A-2
Board on Labor relations, Incorporated, acting on behalf of various building
owners and Local 32B-32J, Service Employees International Union, AFL-CIO, (which
collective bargaining agreement is hereinafter referred to as "the Contract"),
plus a proper proportion of fringe benefits and other payroll costs. As used
herein:
(1) "Xxxxxx" or "porters" shall mean those employees engaged in
the general maintenance and operation of office buildings and
classified as "Others" by the Contract.
(2) "Fringe benefits" shall mean the items of cost which an
employer would be obligated to pay or would incur pursuant to the
contract on the basis of wages paid to a xxxxxx engaged to work a 40
hour work week in Class A office building in New York City who is
entitled to receive on an annual basis the maximum entitlement under
the Contract, including, without limitation, vacation allowances, sick
leave, holiday pay, birthdays, jury duty, medical checkup, lunch time,
relief time, other paid time off, bonuses, union assessments allocable
to pension plans and welfare and training funds, and health, life,
accident, or other such types of insurance.
(3) "Other payroll costs" shall mean taxes payable pursuant to
law by an employer upon the basis of wages paid to a xxxxxx engaged to
work a 40 hour work week in a Class A office building in New York
City, including, without limitation, F.I.C.A., New York State
Unemployment Insurance and Federal Unemployment Insurance.
If at any time during the term of the letting under the Lease the
Contract shall require regular employment of porters on days or during
hours when overtime or other premium pay rates are in effect pursuant
to the Contract the hourly wage rate for porters under the Contract
for the applicable period shall be determined by dividing the weekly
wage an employer would be obligated to pay a xxxxxx engaged to work a
40 hour work week in a Class A office building in New York City under
the Contract by 40.
If either the Realty Advisory Board on Labor Relations,
Incorporated or Local 32B-32J, Service Employees International Union,
AFL-CIO shall cease to
Page 2 of Schedule A-2
exist or a collective bargaining agreement shall cease to be
negotiated between the Realty Advisory Board on Labor Relations,
Incorporated and Local 32B-32J, Service Employees International Union,
AFL-CIO, or if the job classification "Others" shall be renamed or
abolished in any subsequent collective bargaining agreement entered
into between the Realty Advisory Board on Labor Relations,
Incorporated and Local 32B-32J, Service Employees International Union,
AFL-CIO, then the wage rate to be used in applying the provisions of
this Schedule shall be the wage rate for those employees engaged in
the general maintenance and operation of Class A office buildings
either pursuant to any subsequent collective bargaining agreement
between the Realty Advisory Board on Labor Relations, Incorporated and
Local 32B-32J, Service Employees International Union, AFL-CIO, or if
there is no such agreement, then pursuant to such agreement as the
Port Authority shall select.
(g) "Basic wage rate" shall mean the wage rate in effect on
January 1, 1994.
(h) "Rentable square feet in the premises" shall mean 16,351
square feet.
(i) "Lease" shall mean the agreement of lease to which this
schedule is attached.
2. From and after each July 1, following the commencement date of the
letting under the Lease, the Lessee shall pay an additional basic rental under
the Lease at the annual rate computed by multiplying the rentable square feet in
the premises by the excess over the tax base of the total of: (1) the annual per
rentable square foot amount of taxes for the tax year beginning on that July 1;
and (ii) the annual per rentable square foot factor used in computing payments
in lieu of taxes for the tax year beginning on that July 1. If taxes become
payable on a basis other than an annual amount per rentable square foot, the
Port Authority will allocate those taxes to the rentable square feet of space in
the World Trade Center and will notify the Lessee of the amount of such
allocation.
3. In addition to additional basic rental payable under paragraph 2
above, from and after the commencement date of the letting under the Lease, the
Lessee shall pay additional basic rental under the Lease at an annual rate equal
to $0.01 for each $0.01, or major fraction thereof,
Page 3 of Schedule A-2
that the wage rate in effect on the commencement date of the letting and each
wage rate thereafter established from time to time during the term of the
letting exceeds the basic wage rate, multiplied by the rentable square feet in
the premises.
4. If the imposition or allocation of taxes or the establishment of
an annual per rentable square foot factor to be used in computing payments in
lieu of taxes for any tax year or the establishment of a wage rate to be
effective for any period of time is delayed for any reason whatsoever, the
Lessee shall nevertheless continue to pay the additional basic rental at the
annual rate then in effect subject to retroactive adjustments at such time as
the taxes are imposed or allocated or the said per rentable square foot factor
or wage rate shall have been established.
5. After imposition and allocation of taxes for any tax year and the
establishment for each tax year of the annual per rentable square foot factor
used in computing payments in lieu of taxes and after the effective date of each
wage rate in excess of the basic wage rate, the Port Authority will compute the
annual rate or rates of additional basic rental payable by the Lessee under
paragraph 2 or 3 above and will notify the Lessee of the amounts thereof.
Additional basic rental accruing under paragraph 2 or 3 above shall be computed
separately and each amount thereof shall be payable by the Lessee to the Port
Authority in advance in monthly installments, each installment being equal to
1/12 of the annual rate except that if at the time the Port Authority gives
notice to the Lessee under this paragraph, additional basic rental shall have
accrued for a period prior to the notice, the Lessee shall pay such additional
basic rental in full for such period, within ten days after such notice.
6. If after an amount of additional basic rental shall have been fixed
under paragraphs 2 or 3 above for any period, taxes are imposed or the amount of
taxes or the annual per rentable square foot factor in regard to payments in
lieu of taxes or the wage rate used for computing such additional basic rental
shall be changed or adjusted, then the additional basic rental payable for that
period shall be recomputed and from and after notification of the imposition,
change or adjustment, the Lessee shall make payments based upon the recomputed
additional basic
Page 4 of Schedule A-2
rental and upon demand the Lessee shall pay any excess in additional basic
rental as recomputed over amounts of additional basic rental theretofore
actually paid. If such change or adjustment results in a reduction in the amount
of additional basic rental for any period prior to notification, the Port
Authority will credit the Lessee with the difference between the additional
basic rental as recomputed for that period and amounts of additional basic
rental actually paid.
/s/
------------------------------
For the Port Authority
/s/ Xxxxxx Xxxxxxxx
------------------------------
For the Lessee
Page 5 of Schedule A-2
SCHEDULE B
Routine Cleaning in Office Areas
--------------------------------
Daily (Five Days each week except Saturdays, Sundays and Holidays)
------------------------------------------------------------------
1. Empty and damp wipe ash trays, empty waste baskets. Transport collected
waste to trash handling areas and removal from building. Collection and removal
of waste different from or in excess of that from normal daily office operations
is not included and shall be deemed additional cleaning services and requested
by the Lessee in advance in accordance with the provisions of this Schedule.
2. Dust horizontal surfaces of office furniture, equipment, ledges, and
xxxxx.
3. Dust sweep vinyl asbestos floor and/or spot vacuum carpeted surfaces.
4. Clean and sanitize water fountains.
5. Damp wipe fingerprints smears, smudges, etc., on door, wall and
partition surfaces.
Weekly (Once each week)
-----------------------
6. Dust vertical surfaces of office furniture and equipment.
7. Vacuum entire carpeted floor surfaces.
Quarterly (Once each three months)
----------------------------------
8. Wash interior surfaces of window glass.
9. Dust all pictures, frames, chattel graphs, and similar wall hangings,
plus partitions, doors, and door frame surfaces.
Routine Cleaning in Corridor Areas
----------------------------------
Daily (Five days a week except Saturdays, Sundays, and Holidays)
----------------------------------------------------------------
1. Dust sweep corridor floor surfaces once each day.
2. Damp wipe fingerprints, smudges, smears, etc., on
Page 1 of Schedule B
corridor door and wall surfaces.
Once each week
--------------
3. Damp mop and buff corridor floor surfaces.
4. Dust wall fixtures, ledges and xxxxx.
Once each month
---------------
5. Floor conditioning.
Routine Cleaning in Toilet Areas
--------------------------------
Daily (Five days each week except Saturdays, Sundays, and Holidays)
-------------------------------------------------------------------
1. Service and provide necessary supplies for each toilet daily and check
dispensing equipment, damp wipe wash basins, empty receptacles and spot mop
liquid spillage.
2. Once daily clean toilet and powder rooms.
Once each month
---------------
3. Machine scrub ceramic tile floor surfaces.
4. Floor conditioning of powder room floors.
Once each year
--------------
5. Wash walls.
Routine cleaning in Passenger Elevators Lobbies
-----------------------------------------------
Daily (Five days each week except Saturdays, Sundays, and Holidays)
-------------------------------------------------------------------
1. Vacuum entire carpeted floor surface and elevator door saddles.
2. Damp wipe fingerprints, smears, smudges, etc., on elevator doors and
framework, floor indicators, mail chute, floor directories, wall surfaces and
wall hung fixtures.
3. Empty and damp wipe cigarette receptacles.
Once each week
--------------
4. Complete dusting of wall surfaces including wall fixtures and
directories.
Page 2 of Schedule B
5. Spot clean carpet.
Once each year
--------------
3. Shampoo carpet surfaces.
4. Clean and polish wood panel wall surfaces.
Routine Cleaning in Freight Elevator Lobbies
--------------------------------------------
Daily (Five days each week except Saturdays, Sundays, and Holidays)
-------------------------------------------------------------------
1. Dust sweep vinyl asbestos floors.
2. Damp wipe fingerprints smears, smudges, etc., on door and wall surfaces.
Once each week
--------------
3. Mop and rinse floor surfaces.
Once each month
---------------
4. Machine scrub and refinish floor surfaces.
Once each year
--------------
5. Wash door and wall surfaces.
Routine Cleaning in Janitor closets
-----------------------------------
1. Maintain in a clean and orderly condition and appearance.
-------------------------------
For the Port Authority
Initialed:
-------------------------------
For the Lessee
Page 3 of Schedule B
SCHEDULE D
----------
HEATING VENTILATION AND AIR CONDITIONING SYSTEM
-----------------------------------------------
The HVAC system is of a dual system design incorporating a peripheral
induction unit system which supplies air within fifteen feet (15) distance
measured inboard from the exterior glass, and an interior system which
conditions the balance of the floor area. Each of the systems is designed to
deliver the following quantities subject to a 10% variance.
HVAC AIR SUPPLY QUANTITIES PERIPHERAL SYSTEM
-------------------------- -----------------
WEST SOUTH
UNIT TYPE UNIT TYPE
NO. OF UNITS/CFM NO OF UNITS/CFM
Floor #1 (21) 50
84B
#2 (1) 35
NORTH EAST
UNIT TYPE UNIT TYPE
NO. OF UNITS/CFM NO OF UNITS/CFM
Floor #3 (15) 50
84B
#2 (1) 35
Induction units are spaced at the rate of one (1) unit per two (2) windows
average, subject to verification of actual field conditions. Each unit delivers
air of approximately 60 deg. F. utilizing water which in winter ranges between
80 deg. F. to 130 degrees F. as needed, and in summer at 69 deg. F. average.
Supply air to induction units is a constant with variable water temperature and
rate of flow.
Page 1 of Schedule D
HVAC AIR SUPPLY QUANTITIES - INTERIOR SYSTEM
--------------------------------------------
QUADRANT NE NW SE SW
FLOOR CFM CFM CFM CFM
----- --- --- --- ---
84B 185 5265 1820
Interior supply air is .84 CFM per square foot. Air temperature is
controlled by zone thermostat at central air handling unit. Design is based on
one (1) person per 100 square foot. Floor load design criteria is 100 lbs. per
square foot, reducible pursuant to NYC code. The maximum electrical supply is 6
xxxxx per square foot, 480V - lighting; 120V - power.
The supply air fed from base building air conditioning systems, for both
interior and perimeter areas shall be capable of maintaining a 78 deg. F, 50% RH
when outdoor air conditions are 89 deg. F, D.B. and 70 deg. WB, with window
drapes drawn. The winter design conditions are: outdoor air at 11 deg. F, indoor
air temperature at 70 deg. F.
FLOOR LOAD DESIGN CRITERIA
--------------------------
Structural design live load is 100 lbs per square foot reducible.
ELECTRICAL SYSTEM CAPACITY
--------------------------
Effective October 1, 1994, a total of eight (8) xxxxx per rentable (16,351)
square foot of electricity will be available.
-------------------------------
FOR THE PORT AUTHORITY
-------------------------------
FOR THE LESSEE
(84B EUROBROKERS)
Page 2 of Schedule D
(Port Authority Acknowledgment)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1994, before me personally came
to me known, who, being by me duly sworn, did depose and say that he resides in
; that he is the of the
Port Authority of New York and New Jersey, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Commissioners of said corporation; and
that he signed his name thereto by like order.
------------------------------------
(Corporate Acknowledgement)
STATE OF )
) ss.:
COUNTY OF )
On the day of , 1994, before me personally came
to me known, who, being by me duly sworn, did depose and say that he
resides in ;
that he is the of one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation;
and that he signed his name thereto by like order.
------------------------------------
(Individual Acknowledgment)
STATE OF )
) ss.:
COUNTY OF )
On the day of , 1994, before me personally came
, to me known and known to me to be the individual
described in and who executed the foregoing instrument, and acknowledged to me
that he executed the same.
------------------------------------
2
