NINTH AMENDMENT OF LEASE
AND EXTENSION AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the 17th day of December
2003 between WFP TOWER A CO. L.P., a Delaware limited partnership, having an
address at c/o Brookfield Financial Properties, L.P., Xxx Xxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Landlord"), and DOW XXXXX & COMPANY, INC., a Delaware
corporation, having an address at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Tenant").
W I T N E S S E T H :
WHEREAS, by Office Lease dated October 21, 1983 (the "Original Lease"), as
amended by (i) First Amendment of Lease dated as of May 22, 1985, (ii) letter
agreement dated May 19, 1987, (iii) letter agreement dated as of December 1,
1988, (iv) Second Amendment of Lease dated May 11, 1994, (v) Third Amendment of
Lease dated as of December 1, 1995 (the "Third Amendment"), (vi) Fourth
Amendment of Lease dated as of December 26, 1996, (vii) Partial Termination and
Surrender Agreement and Fifth Amendment of Lease dated as of February 25, 1999,
(viii) Sixth Amendment of Lease dated as of September 1, 1999, (ix) Seventh
Amendment of Lease dated as of September 1, 2000 and (x) Eighth Amendment of
Lease dated as of July 12, 2002 (the Original Lease, as so amended and partially
terminated, the "Lease"), Landlord (either directly or through its predecessor
in interest) demised to Tenant premises consisting of the 9th to 16th floors,
inclusive, the Additional Premises, the Elevator Premises, the Duct Premises,
and the Lobby Premises (collectively, the "Original Premises") in the building
known by the street address Tower A, One World Financial Center, New York, New
York (the "Building");
WHEREAS, Landlord and Tenant desire to amend the Lease to (i) extend the
Term of the Lease for a portion of the Original Premises, specifically (x)
entire floors 9 through 11, inclusive, (y) approximately 938 square feet of
rentable area in the 10th floor gatehouse mechanical room of the Building and
approximately 2,500 square feet of rentable area in the 41st floor mechanical
penthouse of the Building (the "Mechanical Premises") and (z) the New Lobby
Space (as such term is defined in the Third Amendment of Lease) (the space
referred to in clauses (x), (y) and (z) being referred to in this Agreement
collectively as the "Renewal Premises") and (ii) otherwise amend the provisions
of the Lease, all on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Defined Terms. All capitalized terms not otherwise defined in this Agreement
shall have the meanings ascribed to them in the Lease.
2. Extension Term. The term of the Lease is hereby extended with respect to the
Renewal Premises only for a period of sixteen years and five months (the
"Extension Term") from January 1, 2004 (the "Extension Term Commencement Date")
through the Expiration Date, which is hereby extended until May 31, 2020.
3. Condition of Renewal Premises. Tenant acknowledges that Tenant is in
possession of and is fully familiar with the condition of the Renewal Premises,
and, notwithstanding anything to the contrary contained in the Lease or the
Supplemental Agreement, Tenant agrees to take the same in its condition "as is"
as of the first day of the Extension Term, and agrees that Landlord shall have
no obligation to alter, repair, or otherwise prepare the Renewal Premises for
Tenant's occupancy for the Extension Term or to pay for alterations,
installations, additions, or improvements performed by Tenant to the Renewal
Premises. The Renewal Premises are substantially as shown hatched on Schedules A
1, A 2, A 3, A 4, and A 5 annexed to this Agreement and made a part hereof.
4. Terms Applicable to the Renewal Premises. The lease of the Renewal Premises
by Tenant shall be on all of the terms and conditions of the Lease, as amended
by this Agreement, except that:
(a) During the Extension Term, the Fixed Rent for the Renewal Premises
shall be payable as specified in the following Fixed Rent Table. Fixed Rate Per
Annum
Floor From January 1, 2004 From January 1, 2009 From January 1, 2014
through and including through and including through and including
December 31, 2008 December 31, 2013 the Expiration Date
New Lobby Space $ 110,928.00 $ 110,928.00 $ 110,928.00
9 $2,676,327.50 $3,023,902.50 $3,371,477.50
10 $1,462,422.50 $1,652,347.50 $1,842,272.50
11 $1,489,372.50 $1,682,797.50 $1,876,222.50
Mechanical Premises $ 85,950.00 $ 85,950.00 $ 85,950.00
(b) From and after the Extension Term Commencement Date to and
including the Expiration Date, Tenant shall pay to Landlord PILOT Payments with
respect to the Renewal Premises at the times and in the manner set forth in the
Lease, except that for purposes of the Renewal Premises (i) the term "Base PILOT
Year" shall mean the PILOT Year from July 1, 2004 and ending June 30, 2005 and
(ii) the term "Tenant's Proportionate PILOT Share" shall mean 10.3325%.
(c) From and after the Extension Term Commencement Date to and
including the Expiration Date, Tenant shall pay to Landlord Operating Payments
with respect to the
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Renewal Premises at the times and in the manner set forth in the Lease, except
that for purposes of the Renewal Premises (i) the term "Base Operating Year"
shall mean the 2004 calendar year, (ii) the term "Tenant's Proportionate
Operating Share" shall mean 10.3325% and (iii) the term "Base Operating
Expenses" shall mean the Operating Expenses for the Base Operating Year.
5. Remainder of the Original Premises. (a) The remainder of the Original
Premises shall include floors 12 through 16, inclusive, the Elevator Premises,
the Duct Premises, the Lobby Premises (other than the New Lobby Space), and
approximately 250 square feet of rentable area on the service level of the
Building (collectively, the "Remainder Premises"). The lease of the Remainder
Premises shall expire on May 31, 2005 (the "Remainder Premises Expiration
Date"), and such lease shall continue from the Extension Term Commencement Date
through and including May 31, 2005 on all of the terms and conditions of the
Lease, except that from and after the Extension Term Commencement Date, (i) the
Fixed Rent payable per annum with respect to the Remainder Premises shall be
Seven Million Eight Hundred Thirty Three Thousand Five Hundred Sixty Nine and
88/100 Dollars ($7,833,569.88); (ii) the term "Tenant's Proportionate PILOT
Share" with respect to the Remainder Premises (other than the Lower Lobby A
Space) shall mean 10.9705% and (iii) the term "Tenant's Proportionate Operating
Share" with respect to the Remainder Premises (other than the Lower Lobby A
Space) shall mean 10.9705%. Tenant shall pay to Landlord PILOT Payments and
Operating Payments with respect to the Lower Lobby A Space in accordance with
the provisions of the Sixth Amendment.
(b) From and after June 1, 2005, the term "Lobby Premises" shall refer
only the New Lobby Space.
(c) All references in the Lease to the Premises shall be deemed to
mean the Renewal Premises and the Remainder Premises from the Extension Term
Commencement Date through and including the Remainder Premises Expiration Date
and thereafter all references to the Premises shall only mean the Renewal
Premises.
(d) From and after the date of this Agreement, and without limiting
the applicability of other provisions of the Lease, Sections 3(h) and (i) of the
Third Amendment shall continue to apply to and govern the use of the New Lobby
Space, except that Tenant shall not use the New Lobby Space for training
purposes, notwithstanding Section 3(h) of the Third Amendment, but Tenant may
use the New Lobby Space for Tenant's security office (i.e., a location at which
security guards will be stationed for purposes of screening and escorting
visitors to the Premises) and for the sale of back issues of The Wall Street
Journal. Further, the following new clause (v) shall be added to Section 3(i) of
the Third Amendment:
(v) Landlord hereby establishes a "Retail Control Zone", consisting
of (a) the portion of the New Lobby Space within five feet of all storefronts
and show windows, and (b) all signs in or on the New Lobby Space that are
readily visible from outside the New Lobby Space. Within the Retail Control
Zone, in order to protect and maintain the character of the Building as a first
class building, Landlord shall have sole and absolute and continuous control
over lighting (as to type and intensity), signage,
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displays, advertising and all other aspects of design, and the presentation and
marketing of Tenant's goods and/or services. No alteration in any approved
lighting, signage, displays, advertising, design or presentation shall be made
without Landlord's prior written approval in each instance. In addition to all
other rights available to Landlord hereunder or at law or in equity for Tenant's
failure to comply with Landlord's requirements, Landlord shall have the right to
enjoin any display or advertising in, or other usage of, the Retail Control Zone
of which Landlord does not approve (including, without limitation, any
advertising or display which is, in Landlord's opinion, pornographic), and/or to
block the storefront or show windows of the New Lobby Space from view from the
street, the Building lobby or any plaza adjoining the New Lobby Space. Landlord
shall have similar rights to enjoin or prevent any such objectionable
advertising or display anywhere within the New Lobby Space, if visible from the
street, the Building lobby or any plaza adjoining the New Lobby Space. Tenant
shall not be entitled to place any signage anywhere outside the New Lobby Space
without Landlord's prior written consent in each instance, which consent may be
withheld by Landlord in its sole and absolute discretion. Tenant's sign in the
New Lobby Space existing as of the date of this Agreement is approved by
Landlord. All ceiling heights, draperies, and other such installations affecting
the appearance of the Building, or that are visible from the exterior of the New
Lobby Space shall be subject to the prior written approval of Landlord. Tenant
shall not permit any display, signs or other items to lean against, or be
affixed to, any windows in the New Lobby Space or block or cover any portion of
the windows of the New Lobby Space, except with such professionally prepared
signs or other advertising as Landlord in each instance shall first approve in
writing. Tenant shall not install any neon signs in, on or outside the New Lobby
Space.
6. Renewal Options. (a) Provided that (i) the Lease shall be in full force
and effect as of the date of the First Renewal Notice (as hereinafter defined)
and as of the date of the Second Renewal Notice (as hereinafter defined), as the
case may be, and as of the Expiration Date in the case of the First Renewal Term
(as hereinafter defined) and as of May 31, 2025, in the case of the Second
Renewal Term (as hereinafter defined), (ii) there shall not then be existing an
Event of Default under the Lease and (iii) Tenant (including any affiliate of
Tenant) shall be in actual physical occupancy of at least 80% of the rentable
area of the entire Premises on the date of the First Renewal Notice and on date
of the Second Renewal Notice, as the case may be, and upon the commencement of
the First Renewal Term or the Second Renewal Term, as the case may be, Tenant
shall have two options to extend the Term of the Lease for the entire Premises
for an additional term of five years each (respectively, the "First Renewal
Term" and the "Second Renewal Term" and collectively, the "Renewal Terms"),
commencing on the day after Expiration Date and ending on May 31, 2025 in the
case of the First Renewal Term and commencing on June 1, 2025 and ending on May
31, 2030 in the case of the Second Renewal Term. Tenant's option with respect to
the First Renewal Term shall be exercisable by written notice (the "First
Renewal Notice") to Landlord given not later than November 30, 2018 (i.e., 18
months prior to the Expiration Date). Tenant's option with respect to the Second
Renewal Term shall be exercisable by written notice (the "Second Renewal
Notice") to Landlord given not later than November 30, 2023 (i.e., 18 months
prior to the last day of the First Renewal Term). Notwithstanding the preceding
sentence, Landlord, in its sole discretion, may waive any Event of Default by
Tenant and no such Event of Default may be used by Tenant to negate the
effectiveness of Tenant's exercise of this option. The Renewal Terms shall
constitute extensions of the initial Term of the Lease and shall be upon all of
the same terms and
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conditions as the initial Term, except that (i) there shall be only one option
to renew the Term for the Second Renewal Term in the First Renewal Term and
there shall be no further option to renew the Term of the Lease in the Second
Renewal Term, (ii) Landlord shall not be required to furnish any materials or
perform any work to prepare the Premises for Tenant's occupancy and Landlord
shall not be required to reimburse Tenant for any Alterations made or to be made
by Tenant, and (iii) the Fixed Rent for the Renewal Terms shall be payable at a
rate per annum equal to the Fair Market Rent (as defined below) of the Premises
as of the first day of the First Renewal Term in the case of the First Renewal
Term, and as of the first day of the Second Renewal Term in the case of the
Second Renewal Term. During both Renewal Terms, all PILOT Payments, Operating
Payments and other Additional Charges that Tenant is obligated to pay under the
Lease during the initial Term hereof shall continue without interruption, it
being the intention of the parties hereto that the Renewal Terms shall be deemed
a part of and continuation of the initial Terms of this Lease.
(b) The annual Fixed Rent for the Premises for the Renewal Terms shall
be the Fair Market Rent. "Fair Market Rent" means the fixed annual rent that a
willing lessee would pay pursuant to a direct lease and a willing lessor would
accept for the Premises pursuant to a direct lease during the Renewal Terms,
determined on the basis of then-current prevailing rent in the Building for
comparable space on a direct lease basis and then- current rent for comparable
space on a direct lease basis in other first- class office buildings in the
vicinity of the Building, taking into account all relevant factors.
(c) If Tenant timely exercises a renewal option pursuant to this
Xxxxxxxxx 0, Xxxxxxxx shall notify Tenant (the "Rent Notice") at least 90 days
before the first day of the applicable Renewal Term of Landlord's determination
of the Fair Market Rent ("Landlord's Determination"). Tenant shall notify
Landlord ("Tenant's Notice"), within 30 days after Tenant's receipt of the Rent
Notice, whether Tenant accepts or disputes Landlord's Determination, and if
Tenant disputes Landlord's Determination, Tenant's Notice shall set forth
Tenant's determination of the Fair Market Rent. If Tenant fails to give Tenant's
Notice within such 30 day period, Tenant shall be deemed to have accepted
Landlord's Determination.
(d) If Tenant timely disputes Landlord's Determination and Landlord
and Tenant fail to agree as to the Fair Market Rent within 30 days after the
giving of Tenant's Notice, then the Fair Market Rent shall be determined as
follows: A senior officer of a recognized New York City leasing brokerage firm
(the "Baseball Arbitrator") shall be selected and paid for jointly by Landlord
and Tenant. If Landlord and Tenant are unable to agree upon the Baseball
Arbitrator, then the same shall be designated by the American Arbitration
Association (or any organization which is the successor thereto) (the "AAA").
The Baseball Arbitrator selected by the parties or designated by the AAA shall
have at least ten years experience in (i) the leasing of office space in
downtown Manhattan, or (ii) the appraisal of first class office buildings in
downtown Manhattan. Landlord and Tenant shall each submit to the Baseball
Arbitrator and the other its determination of the Fair Market Rent of the
Premises. The Baseball Arbitrator shall determine which of the two rent
determinations more closely represents the Fair Market Rent of the Premises. The
Baseball Arbitrator may not select any other rental value for the Premises other
than one submitted by Landlord or Tenant. The determination of the party so
selected or designated shall be binding upon Landlord and Tenant and shall serve
as the basis for the
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determination of the Fixed Rent payable for the applicable Renewal Term, subject
to further adjustment as provided in this Lease. After a determination has been
made of the Fair Market Rent, the parties shall execute and deliver an
instrument setting forth the Fair Market Rent, but the failure to so execute and
deliver any such instrument shall not affect the determination of Fair Market
Rent.
(e) If Tenant disputes Landlord's Determination and if the final
determination of Fair Market Rent shall not be made on or before the first day
of the applicable Renewal Term, then, pending such final determination, Tenant
shall pay, as Fixed Rent for the applicable Renewal Term, an amount equal to the
Fixed Rent payable by Tenant for the Premises during the 12-month period
immediately preceding the first day of the applicable Renewal Term. If, based
upon the final determination of the Fair Market Rent, the Fixed Rent payments
made by Tenant for such portion of the applicable Renewal Term were (i) less
than the Fair Market Rent payable for the applicable Renewal Term, Tenant shall
pay to Landlord the amount of such deficiency within 10 days after demand
therefor or (ii) greater than the Fair Market Rent payable for the applicable
Renewal Term, Landlord shall credit the amount of such excess against
installments of Fixed Rent and/or Additional Charges payable by Tenant next
coming due.
(f) It is an express condition of the options granted to Tenant
pursuant to the terms of this Paragraph 6 that time is of the essence with
respect to Tenant's exercise of either such option within the period above
provided.
7. Signage. (a) From and after the date of this Agreement, Sections 18.06,
18.07 and 18.08 of the Original Lease shall be deleted in their entirety and
shall be replaced by the following:
18.06. Landlord may adopt any name for the Building and Landlord reserves
the right to change the name and/or address of the Building at any time.
(b) At any time after the date of this Agreement, Landlord may remove
any and all signage installed by or on behalf of Tenant pursuant to the terms of
Sections 18.06, 18.07 and 18.08 of the Original Lease, and Landlord shall repair
any damage to the Premises resulting from such removal. The removal of all such
signs and repair of any damage caused by such removal shall be at Landlord's
expense, except that the cost to remove Tenant's existing private elevator bank
signage on the wall of the elevator lobby (serving the 8th to 16th floors) on
the +32'0" lobby level of the Building and repair any damage caused by such
removal, shall be at Tenant's expense.
(c) On or before the Expiration Date or the date Tenant shall have
sublet the New Lobby Space, Tenant shall, at Tenant's expense, remove its sign
in the New Lobby Space and restore and repair any damage caused by such removal.
8. Assignment and Subletting. From and after the date of this Agreement:
(a) In Section 8.12 of the Original Lease, the phrase "or with respect
to any proposed subletting for a term beginning on or after the tenth
anniversary of the Commencement Date, or with respect to any proposed subletting
for a term (including options to renew or extend) comprising all
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or substantially all of the then remaining initial term (i.e., all except less
than one year)" shall be deleted and shall be replaced by the following: "or
with respect to any proposed subletting."
(b) Section 8.14 of the Original Lease shall be deleted in its
entirety and shall be replaced by the following:
"8.14 Assignment and Sublease Profits.
(a) If the aggregate of the amounts payable as fixed rent and as
Additional Charges on account of PILOT, Operating Expenses and electricity by a
subtenant under a sublease of any part of the Premises (other than by a sublease
made pursuant to Section 8.03 of the Original Lease) and the amount of any Other
Sublease Consideration payable to Tenant by such subtenant, whether received in
a lump-sum payment or otherwise, shall be in excess of Tenant's Basic Cost
therefor at that time then, promptly after the collection thereof, Tenant shall
pay to Landlord in monthly installments as and when collected, as Additional
Charges, 50% of such excess. Tenant shall deliver to Landlord within 60 days
after the end of each calendar year and within 60 days after the expiration or
earlier termination of this Lease a statement specifying each sublease in effect
during such calendar year or partial calendar year, the rentable area demised
thereby, the term thereof and a computation in reasonable detail showing the
calculation of the amounts paid and payable by the subtenant to Tenant, and by
Tenant to Landlord, with respect to such sublease for the period covered by such
statement. "Tenant's Basic Cost" for sublet space at any time means the sum of
(i) the portion of the Fixed Rent, PILOT Payments and Operating Payments which
is attributable to the sublet space, plus (ii) the amount payable by Tenant on
account of electricity in respect of the sublet space, plus (iii) the amount of
any costs reasonably incurred by Tenant in making changes in the layout and
finish of the sublet space for the subtenant amortized on a straight-line basis
over the term of the sublease plus (iv) the amount of any reasonable brokerage
commissions and reasonable legal fees paid by Tenant in connection with the
sublease amortized on a straight-line basis over the term of the sublease, plus
(v) the cost of any construction allowance and the cost of any free rent period
or other monetary consideration granted by Tenant as an inducement to the
subtenant to enter into the proposed sublease, all amortized on a straight-line
basis over the term of the sublease. "Other Sublease Consideration" means all
sums paid for the furnishing of services by Tenant and the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or other
personal property less, in the case of the sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns.
(b) Upon any assignment of this Lease (other than by an assignment in
connection with a transaction expressly permitted pursuant to Section 8.02 or
Section 8.03 of the Original Lease), Tenant shall pay to Landlord 50% of the
Assignment Consideration received by Tenant for such assignment, after deducting
therefrom customary and reasonable closing
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expenses. "Assignment Consideration" means an amount equal to all sums and other
considerations paid to Tenant by the assignee for or by reason of such
assignment (including, without limitation, sums paid for the furnishing of
services by Tenant and the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property,
less, in the case of a sale thereof, the then net unamortized or undepreciated
cost thereof determined on the basis of Tenant's federal income tax returns)."
9. Insurance. (a) Section 10.04 of the Original Lease shall be deleted
in its entirety and shall be replaced by the following:
"10.04 Tenant's Insurance. Tenant shall maintain at all times during
the Term (a) "all risk" property insurance (including coverage for terrorism)
covering all present and future Tenant's Property, Fixtures and Alterations to a
limit of not less than the full replacement cost thereof, and (b) commercial
general liability insurance, written on an "occurrence form," against claims for
bodily injury, personal injury and property damage in or about the Premises and
the conduct or operation of business therein, with Landlord, the Managing Agent,
Battery Park City Authority, Deutsche Bank Trust Company Americas, as
Administrative Agent, together with its successors and assigns, and any future
Superior Lessor and Superior Mortgagee whose name and address shall have been
furnished to Tenant, as additional insureds, with limits of not less than
$10,000,000 combined single limit for bodily injury and property damage
liability in any one occurrence and (c) business interruption insurance in an
amount that will reimburse Tenant for direct or indirect loss of earnings and/or
extra expense attributable to perils insured against in item (a) or attributable
to prevention of access to the Premises or Building as a result of such perils
and (d) boiler and machinery insurance, if there is a boiler, supplementary air
conditioner or pressure object or similar equipment in the Premises, with
Landlord, the Managing Agent, Battery Park City Authority, Deutsche Bank Trust
Company Americas, as Administrative Agent, together with its successors and
assigns, and any future Superior Lessor and Superior Mortgagee whose name and
address shall have been furnished to Tenant, as additional insureds, with limits
of not less than $5,000,000 and (e) when Alterations are in process, the
insurance specified in Section 12.02 hereof and (f) any other form of insurance
that Landlord, the Managing Agent, Battery Park City Authority, Deutsche Bank
Trust Company Americas, as Administrative Agent, together with its successors
and assigns and any future Superior Lessor and Superior Mortgagee whose name and
address shall have been furnished to Tenant may reasonably require from time to
time in form, amounts and for insurance risks acceptable to Landlord. Any
insurance required to be maintained pursuant to the terms of this Lease may be
maintained under blanket policies. Any such blanket policies shall contain an
endorsement that includes Landlord and any additional insureds, shall reference
the Premises and shall guaranty a minimum limit available for the Premises equal
to the insurance amounts required in this Lease. The limits of such insurance
shall not limit the liability of Tenant. Tenant shall
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deliver to Landlord and any additional insureds, at least 10 days prior to the
date of the Ninth Amendment of Lease, such fully paid-for policies or
certificates of insurance, in form reasonably satisfactory to Landlord issued by
the insurance company or its authorized agent. Tenant shall procure and pay for
renewals of such insurance from time to time before the expiration thereof, and
Tenant shall deliver to Landlord and any additional insureds such renewal policy
or a certificate thereof at least 30 days before the expiration of any existing
policy. All such policies shall be issued by companies of recognized
responsibility licensed to do business in New York State and rated by Best's
Insurance Reports or any successor publication of comparable standing as A/XII
or better or the then equivalent of such rating, and all such policies shall
contain a provision whereby the same cannot be cancelled, allowed to lapse or
modified unless Landlord and any additional insureds are given at least 30 days'
prior written notice of such cancellation, lapse or modification. The proceeds
of policies providing "all risk" property insurance of Tenant's Property and
Fixtures shall be payable to Landlord, Tenant and each Superior Lessor and
Superior Mortgagee as their interests may appear. Tenant shall cooperate with
Landlord in connection with the collection of any insurance monies that may be
due in the event of loss and Tenant shall execute and deliver to Landlord such
proofs of loss and other instruments which may be required to recover any such
insurance monies. Landlord may from time to time require that the amount of the
insurance (other than Tenant's "all risk" property insurance) to be maintained
by Tenant under this Section 10.04 be increased, so that the amount thereof
adequately protects Landlord's interest. The term "Managing Agent" shall mean
Brookfield Financial Properties, L.P. or any successor contractor or agent for
the management of the Building."
(b) The fifth sentence of Section 12.02 of the Original Lease from
"Throughout the performance of Alterations, Tenant " through "with insurers
reasonably satisfactory to Landlord" shall be deleted and shall be replaced by
the following:
"Throughout the performance of Alterations, Tenant shall carry or
cause the contractor retained by it to perform such Alterations to carry
worker's compensation insurance in statutory limits, "all risk" Builders Risk
coverage and general liability insurance, with completed operation endorsement,
for any occurrence in or about the Building, under which Landlord, the Managing
Agent, Battery Park City Authority, Deutsche Bank Trust Company Americas, as
Administrative Agent, together with its successors and assigns, and any future
Superior Lessor and Superior Mortgage whose name and address have been furnished
to Tenant shall be named as additional insureds, in such limits as Landlord may
reasonably require, with insurers reasonably satisfactory to Landlord.
Notwithstanding the preceding sentence, if Tenant performs any Alterations
without using a contractor and the cost of such Alterations does not exceed
$500,000, Tenant shall not be required to carry "all risk" Builders Risk
coverage."
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10. Casualty. Article 22 of the Original Lease shall be deleted in its
entirety and shall be replaced by the following:
"22.01 (a) If the Building or the Premises shall be partially or
totally damaged or destroyed by fire or other casualty (each, a "Casualty") and
if this Lease is not terminated as provided below, then (i) Landlord shall
repair and restore the Building and the Premises (but excluding Fixtures and
Tenant's Property) ("Landlord's Restoration Work") with reasonable dispatch (but
Landlord shall not be required to perform the same on an overtime or premium pay
basis) after notice to Landlord of the Casualty and the collection of the
insurance proceeds attributable to such Casualty and (ii) Tenant shall repair
and restore in accordance with Article 12 all Fixtures and Tenant's Property
("Tenant's Restoration Work") with reasonable dispatch (but Tenant shall not be
required to perform the same on an overtime or premium pay basis) after the
Casualty. Notwithstanding anything to the contrary contained herein, if in
Landlord's sole discretion, it would be appropriate for safety reasons, health
reasons or the efficient operation or restoration of the Building or the
Premises for Landlord to perform all or a portion of Tenant's Restoration Work
on behalf of Tenant, then (x) Landlord shall give Tenant a notice specifying the
portion of Tenant's Restoration Work to be performed by Landlord (the "Specified
Restoration Work"), (y) Landlord shall perform the Specified Restoration Work
with reasonable dispatch and restore the Premises (or that portion thereof with
respect to which Landlord is performing Specified Restoration Work) to
substantially its condition immediately prior to the Casualty or as may
otherwise be requested by Tenant and approved by Landlord (and if Landlord shall
determine to perform any Specified Restoration Work, Tenant shall, promptly
after Landlord's request, provide Landlord with a copy of Tenant's approved
plans and specifications for the Premises and Landlord shall perform such
restoration work in accordance with such approved plans and specifications), and
(z) Landlord shall be entitled to disbursements from the insurance proceeds paid
to Depositary (as hereinafter defined) to cover the cost of such Specified
Restoration Work in accordance with the last two sentences of this Section
22.01; provided that if such proceeds prove to be insufficient to complete the
Specified Restoration Work, Tenant shall make such additional deposits into the
Restoration Fund (as hereinafter defined) as may be required to fund Landlord
disbursement requests which satisfy the requirements of this Section 22.01. The
Depositary shall be a title company or financial institution having offices in
the City of New York with assets of not less than Five Hundred Million Dollars
($500,000,000) selected by, but independent from, Landlord (the "Depositary").
The fees charged by the Depositary shall be split equally by Landlord and Tenant
(or to the extent that there are funds in the Restoration Fund that are not
applied to restoration of the Premises, from such funds). The Depositary shall
agree to hold and disburse the Restoration Fund in accordance with the
provisions of this Section 22.01. The proceeds of insurance covering Fixtures
(the "Restoration Fund") shall be paid to the Depositary and the Depositary
shall disburse to Tenant (or, if Landlord elects to perform the Specified
Restoration Work, to Landlord)
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such proceeds up to the amount so expended by Tenant or Landlord in accordance
with the provisions of Section 22.01(b) to (e). Depositary shall hold the
Restoration Fund in trust for the benefit of Tenant, in an account separate from
any sums that may be held on behalf of Landlord, and agrees that, unless and
until (x) Landlord performs Specified Restoration Work and is entitled to
receive disbursements from the Restoration Fund pursuant to Section 22.01(b) to
(e) or (y) this Lease is terminated, no part of the Restoration Fund constitutes
Landlord's property and Landlord disclaims ownership of such Restoration Fund.
Depository will be entitled to rely on notices from Landlord that it is entitled
to the Restoration Fund or portion thereof by reason of the termination of this
Lease and Depository may disburse the same on Landlord's written request, a copy
of which request Landlord shall send to Tenant at the same time that it sends
Depository such request.
(b) Depositary shall disburse a portion of the Restoration Fund to
Tenant (or, if Landlord elects to perform the Specified Restoration Work, to
Landlord) from time to time, within twenty-five (25) days after receipt of the
items set forth in Section 22.01(c), provided that, with respect to
disbursements requested by Tenant, on the date of a request and on the date of
disbursement from the Restoration Fund no Event of Default, or default in a
monetary obligation or a restoration obligation for which Tenant shall have
received notice, shall exist; provided, however, that if such a default does
exist, then upon Tenant's cure of such a default (and the satisfaction of the
other terms and conditions of this Section 22.01), Depositary shall disburse the
previously requested portion of the Restoration Fund as set forth herein.
Disbursements from the Restoration Fund shall not be made more frequently than
once in any thirty (30) day period, and shall be in an amount equal to the
aggregate amounts in respect of hard and soft costs theretofore paid or payable
(as certified to Landlord and Depositary by a designee of Tenant for such
purpose and Tenant's independent, licensed architect or, with respect to
Specified Restoration Work, as certified to Tenant and Depositary by a designee
of Landlord for such purpose and Landlord's independent, licensed architect) to
contractors, subcontractors and materialmen (which amounts have not been the
subject of a previous disbursement from the Restoration Fund).
(c) Depositary's obligation to make disbursement from the Restoration
Fund shall be subject to (i) receipt of (A) a request for such disbursement from
Tenant (or, as to the Specified Restoration Work, Landlord) signed by an
authorized signatory of Tenant (or, as to the Specified Restoration Work,
Landlord), together with the certification required by Section 22.01(b); (B)
copies of all receipts, invoices and bills for the work completed and materials
furnished in connection with the applicable portion of the Tenant's Restoration
Work or Specified Restoration Work and incorporated in the Premises which are to
be paid from the requested disbursement or which have been paid by Tenant or
Landlord, as appropriate, and for which Tenant or Landlord, as appropriate, is
seeking reimbursement, (C) copies of all contracts with the general contractor
and
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with those subcontractors having contracts with a contract sum equal to or
greater than $500,000 ("Major Subcontractors"), work orders, change orders and
other materials relating to the work or materials which are the subject of the
requested disbursement or reimbursement, (D) a certificate of Tenant's or
Landlord's independent licensed architect, as appropriate, stating that, in his
or her opinion, the portion of the Tenant's Restoration Work or Specified
Restoration Work theretofore completed and for which the disbursement is
requested was performed in a good and workerlike manner and substantially in
accordance with the final detail plans and specifications for such Tenant's
Restoration Work or Specified Restoration Work, (E) waivers of lien from all
contractors, subcontractors and materialmen who have performed work in excess of
$15,000, or furnished materials in excess of $15,000 in connection with the
Tenant's Restoration Work or Specified Restoration Work which were either paid
or were the subject of any previously requested disbursement; and (F) a
certificate of the designee of Tenant or Landlord, as appropriate, stating that
Tenant or Landlord, as appropriate, shall have paid or shall simultaneously with
the disbursement of the Restoration Fund which is the subject of such request
pay an amount to Tenant's or Landlord's, as appropriate, contractors,
subcontractors and materialmen (or architects and engineers) for the cost of
such Tenant's Restoration Work or Specified Restoration Work equal to the
disbursement requested to be disbursed from the Restoration Fund. The Alteration
provisions of this Lease shall control work performed pursuant to this Section
22.01, except to the extent such provisions are inconsistent with this Section
22.01.
(d) In no event shall the aggregate amount paid by Depositary to
Tenant or Landlord or their respective contractors, subcontractors, materialmen,
professionals, or consultants under this Section 22.01 exceed the amount of the
Restoration Fund. Tenant expressly understands and agrees that (i) Tenant shall
complete, at its sole cost and expense, Tenant's Restoration Work, whether or
not the Restoration Fund is sufficient to fund such completion, and (ii) that if
the Restoration Fund is insufficient to fund the completion by Landlord of the
Specified Reconstruction Work, then Tenant shall make such additional deposits
into the Restoration Fund as may be required to fund Landlord disbursement
requests which satisfy the requirements of this Section 22.01. Any costs to
complete the Tenant's Restoration Work or the Specified Restoration Work in
excess of the Restoration Fund shall be the sole responsibility and obligation
of Tenant, payable in accordance with this subsection (d).
(e) Within sixty (60) days after completion of the Tenant's
Restoration Work or Specified Restoration Work, Tenant or Landlord, as
appropriate, shall deliver to Landlord or Tenant, as appropriate, general
releases and waivers of lien from contractors, subcontractors and materialmen
who have performed work in excess of $15,000, or furnished materials in excess
of $15,000, in connection with the Tenant's Restoration Work or Specified
Restoration Work; and a certificate from Tenant's or Landlord's, as appropriate,
independent licensed architect or engineer (or from an authorized officer of
Tenant, or Landlord, as appropriate, as to
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item (ii)) certifying that (i) in his or her opinion, the Tenant's Restoration
Work or Specified Restoration Work has been performed in a good and workerlike
manner and completed substantially in accordance with the final detailed plans
and specifications for such Tenant's Restoration Work or Specified
Reconstruction Work as approved by Landlord; and (ii) all contractors,
subcontractors, materialmen, professionals and consultants have been paid in
full for the Tenant's Restoration Work or Specified Reconstruction Work and
materials furnished through such date. Promptly after completion of the Tenant's
Restoration Work or Specified Reconstruction Work as to each floor of the
Premises, Tenant or Landlord, as appropriate, at its expense, shall obtain any
certificate of occupancy for such floor, if and to the extent required by law.
Landlord and Tenant shall cooperate with each other, including signing all
necessary applications and/or documents required by the applicable governmental
authority, in obtaining such certificates of occupancy.
22.02 If all or part of the Premises shall be rendered untenantable by
reason of a Casualty, the Fixed Rent and the Additional Charges under Article 3
of this Lease shall be abated in the proportion that the untenantable area of
the Premises bears to the total area of the Premises, for the period from the
date of the Casualty to the earlier of (i) the date Landlord shall have
substantially completed its repair and restoration of that portion of the
Premises Landlord is required by this Lease to repair and restore (provided,
that if Landlord would have completed its repair and restoration at an earlier
date but for Tenant having failed to cooperate with Landlord in effecting such
repairs or restoration or collecting insurance proceeds, then the Premises shall
be deemed to have been repaired and restored on such earlier date and the
abatement shall cease) or (ii) the date Tenant or any subtenant reoccupies a
portion of the Premises (in which case the Fixed Rent and the Additional Charges
allocable to such reoccupied portion shall be payable by Tenant from the date of
such occupancy). Landlord shall give Tenant ten days' notice of substantial
completion of Landlord's repair and restoration work and upon such completion,
Landlord shall deliver possession of the Premises to Tenant. Notwithstanding any
provision contained in this Lease to the contrary, (x) there shall be no
abatement with respect to any portion of the Premises which has not been
rendered untenantable by reason of a Casualty and which is accessible, whether
or not other portions of the Premises are untenantable, except that with respect
to a Casualty which has made a portion of a floor untenantable, if less than 50%
of the rentable area of a floor is tenantable and accessible, and Tenant can
not, and is not, using any portion of such floor, the abatement shall apply to
the entire such floor, and (y) any abatement of Rent applicable to any portion
of the Premises which was rendered untenantable by reason of a Casualty shall
cease on the earlier of the dates referred to in clauses (i) or (ii) of the
preceding sentence provided such portion is accessible, whether or not other
portions of the Premises remain untenantable. Landlord's determination of the
date such repair and restoration to the Premises shall have been substantially
completed shall be controlling unless Tenant disputes same by notice to Landlord
given within 10 days after such determination by Landlord, and pending
resolution of such
13
dispute, Tenant shall pay Fixed Rent and Additional Charges in accordance with
Landlord's determination. If such dispute is resolved in Tenant's favor by a
court of competent jurisdiction, and provided Tenant is not then in default
under this Lease beyond notice and any applicable cure period, Landlord shall
refund to Tenant any amounts found by such court to be due Tenant based on the
date found by such court to have been the date such repair and restoration had
been substantially completed, with interest at the prime rate on the amount to
be refunded. Notwithstanding the foregoing, if by reason of any act or omission
by Tenant, any subtenant or any of their respective partners, directors,
officers, servants, employees, agents or contractors, Landlord, any Superior
Lessor or any Superior Mortgagee shall be unable to collect all of the insurance
proceeds (including, without limitation, rent insurance proceeds) applicable to
the Casualty, then, without prejudice to any other remedies which may be
available against Tenant, there shall be no abatement of Rent. Nothing contained
in this Section 22.02 shall relieve Tenant from any liability that may exist as
a result of any Casualty.
22.03 If by reason of a Casualty (i) the Building shall be totally damaged
or destroyed, or (ii) the Building shall be so damaged or destroyed (whether or
not the Premises are damaged or destroyed) that repair or restoration shall
require more than 270 days or the expenditure of more than 20% percent of the
full insurable value of the Building (which, for purposes of this Section 22.03,
shall mean replacement cost less the cost of footings, foundations and other
structures below the street and first floors of the Building) immediately prior
to the Casualty, then in either such case Landlord may terminate this Lease by
notice given to Tenant within 180 days after the Casualty. If by reason of a
Casualty, (x) the Building or the Premises shall be so damaged or destroyed that
repair or restoration shall require more than 365 days from the date of the
Casualty (as estimated by a licensed professional engineer designated by
Landlord and reasonably satisfactory to Tenant), or (y) Landlord shall not have
commenced its repair or restoration work within 365 days from the date of the
Casualty (as such date may be extended by any delays caused by Tenant), then in
either such case Tenant may terminate this Lease under the circumstances
described in clause (x) by notice given to Landlord within 45 days after Tenant
receives notice of the determination of such engineer, and under the
circumstances described in clause (y) by notice given to Landlord within 45 days
after such 365 day period shall have passed without Landlord having commenced
its repair or restoration work. If this Lease is terminated as a result of a
Casualty, Landlord shall be entitled to retain for its benefit the proceeds of
insurance maintained by Tenant on the Fixtures. Landlord shall deliver to Tenant
the estimate of the licensed professional engineer described in this Section
22.03 within 90 days after the date of the Casualty.
22.04 Except as provided in Section 22.03 above, Tenant shall not be
entitled to terminate this Lease, and no damages, compensation or claim shall be
payable by Landlord for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the
14
Premises or of the Building pursuant to this Article. Landlord shall use
its best efforts to make such repair or restoration promptly and in such
manner as not unreasonably to interfere with Tenant's use and occupancy of the
Premises, but Landlord shall not be required to do such repair and restoration
work except during Business Hours of Business Days.
22.05 Landlord shall not carry any insurance on Tenant's Property or on any
Fixtures and shall not be obligated to repair or replace Tenant's Property or
any Fixtures (whether or not installed by or at the expense of Landlord). Tenant
shall look solely to its insurance for recovery of any damage to or loss of
Tenant's Property or any Fixtures. Tenant shall notify Landlord promptly of any
Casualty in the Premises. In the event of a partial or total destruction of the
Premises, provided Tenant shall have access to the Premises or the relevant
portion thereof, Tenant shall as soon as practicable, whether or not Landlord
shall have notified Tenant to remove the same, but in no event later than five
(5) Business Days after receiving a notice from Landlord, remove any and all of
Tenant's Property from the Premises or the portion thereof destroyed, as the
case may be, and if Tenant does not promptly so remove Tenant's Property,
Landlord, at Tenant's expense, may remove Tenant's Property to a public
warehouse for deposit or retain the same in its own possession and at its
discretion may sell the same at either public auction or private sale, the
proceeds of which shall be applied first to the expenses of removal, storage and
sale, second to any sums owed by Tenant to Landlord, with any balance remaining
to be paid to Tenant; if the expenses of such removal, storage and sale shall
exceed the proceeds of any sale, Tenant shall pay such excess to Landlord upon
demand. If more than one full floor of the Premises have been affected by the
Casualty, the five (5) Business day period referred to in this Section 22.05
shall be deemed to mean that Tenant shall have five (5) Business Days to remove
Tenant's Property for each such floor affected by the Casualty. Tenant shall be
solely responsible for arranging for any visits to the Premises by Tenant's
insurance adjuster that may be desired by Tenant prior to the removal of
Tenant's Property by Tenant or Landlord, as provided in this Section 22.05, or
the performance by Landlord of Landlord's Restoration Work or the Specified
Restoration Work and Landlord shall be under no obligation to delay the
performance of same, nor shall Landlord have any liability to Tenant in the
event that Tenant fails to do so. Tenant shall promptly permit Landlord access
to the Premises for the purpose of performing Landlord's Restoration Work and,
if applicable, the Specified Restoration Work.
22.06 This Article 22 shall be deemed an express agreement governing any
damage or destruction of the Premises by fire or other casualty, and Section 227
of the New York Real Property Law providing for such a contingency in the
absence of an express agreement, and any other law of like import now or
hereafter in force, shall have no application."
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11. Bankruptcy.
(a) In addition to the provisions of Section 25.01 of the Original
Lease, if a petition is filed by or against Tenant under the United States
Bankruptcy Code, and if Tenant seeks to assume the Lease, in connection with
said assumption, Tenant shall provide adequate assurance of its ability to
perform and complete all of its obligations under the Lease in a timely fashion,
with TIME BEING OF THE ESSENCE in respect of said performance. The parties
hereto agree that adequate assurance shall include, at a minimum, the adequate
assurance set forth in Section 11(c), which they acknowledge and agree is
commercially reasonable.
(b) If a petition is filed by or against Tenant for relief under the
Bankruptcy Code, and Tenant (including for the purposes of this Section,
Tenant's successor in bankruptcy, whether a trustee, Tenant as debtor in
possession or other responsible person) assumes, or assumes and proposes to
assign the Lease pursuant to the provisions of the Bankruptcy Code to any person
or entity which has made or accepted a bona fide offer to accept an assignment
of the Lease, such assumption or assumption and assignment may only be made if
all of the terms and conditions of this Section 11 are satisfied.
(c) Conditions to Assumption. No election by Tenant to assume the
Lease shall be effective unless each of the following conditions, which Landlord
and Tenant acknowledge are commercially reasonable, have been satisfied, and
Landlord has acknowledged in writing that: (i) Tenant has cured, or has provided
Landlord adequate assurance (as defined below) that within ten (10) days after
the date of such assumption in the case of monetary defaults and within thirty
(30) days after such date in the case of nonmonetary defaults Tenant will cure,
all defaults under the Lease; (ii) Tenant has compensated Landlord, or has
provided to Landlord adequate assurance that within ten (10) days after the date
of assumption Landlord will be compensated, for any pecuniary loss incurred by
Landlord arising from the default of Tenant as determined by the Bankruptcy
Court; (iii) Tenant has provided Landlord with adequate assurance of the future
performance of each of Tenant's obligations under the Lease; and (iv) Tenant
shall have provided Landlord with prior written notice of any proceeding seeking
assumption of the Lease.
(d) Conditions to Assignment. In addition to satisfying the terms and
conditions of Section 11(c), Tenant shall give notice to Landlord of any
proposed assignment of the Lease pursuant to the Bankruptcy Code setting forth
(1) the name and address of the proposed assignee and (2) all of the terms and
conditions of the offer and proposed assignment. Tenant shall also deliver to
Landlord a statement confirming that the assignee will continue to use the
Premises for the permitted uses. Landlord and Tenant acknowledge that Landlord's
asset will be substantially impaired if the trustee in bankruptcy, debtor or
debtor in possession or any assignee of the Lease makes any use of the Premises
for other than the permitted uses. Adequate assurance of future performance by
the proposed assignee shall include such financial and other in-formation as is
necessary to demonstrate that the financial condition and operating performance
experience of the proposed assignee and its guarantors, if any, is sufficient to
perform in such a manner as to meet and satisfy all obligations under the Lease
in a timely fashion and shall be reasonably satisfactory to Landlord in all
other respects. Any person or entity to whom the Lease is assigned pursuant to
16
the provisions of the Bankruptcy Code shall be deemed without further act or
documentation to have assumed all of Tenant's obligations arising under the
Lease on and after the date of such assignment. Any such assignee shall, upon
demand, execute and deliver to Landlord an instrument confirming such
assumption. No provision of the Lease shall be deemed a waiver of Landlord's
rights or remedies under the Bankruptcy Code to oppose any assumption and/or
assignment of the Lease, to require timely performance of Tenant's obligations
under the Lease, or to regain possession of the Premises or a waiver of Tenant's
rights or remedies under the Bankruptcy Code.
(e) Notwithstanding anything in the Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under the Lease, whether or not
expressly denominated as such, shall constitute "rent" for the purposes of
Section 502(b)(6) of the Bankruptcy Code.
12. Other Terms of the Lease.
(a) From and after the date of this Agreement, the Lease shall be
further amended as follows:
(i) The second sentence of Section 3.05 of the Original Lease,
beginning "If Landlord shall receive a notice"," through the end of such Section
3.05 shall be deleted and the following substituted therefor:
"Landlord shall, with respect to each PILOT Year, initiate and pursue
in good faith an application or proceeding seeking a reduction in the assessed
valuation of the Building and/or the Land (the "Project"); provided, however,
that Landlord shall not be required to initiate or pursue any such application
or proceeding for any such PILOT Year if Landlord obtains with respect to such
PILOT Year a letter from a recognized certiorari attorney or consultant that in
such person's opinion, considering only the Project (and not any other real
estate owned by Landlord), it would not be advisable or productive to bring such
application or proceeding. At Tenant's request, Landlord shall deliver a copy of
such letter to Tenant."
(ii) Article 4 of the Original Lease, as amended by paragraph 4
of the First Amendment of Lease and paragraph 2 of the Second Amendment of
Lease, shall be deleted in its entirety.
(iii) Article 5 of the Original Lease shall be deleted in its
entirety.
(iv) The second, third and fourth sentences of Section 6.03(a) of
the Original Lease shall be deleted, and the phrase "other than MHTCo." in the
fifth sentence of such Section 6.03(a) also shall be deleted. If Tenant wishes
to obtain a Non-Disturbance Agreement with respect to this Agreement, any fees
charged or reimbursements for expenses demanded by the lessor under the ground
lease, the holder of the mortgage on the Project or any Superior Party shall be
paid by Tenant on Landlord's demand.
(v) Section 6.03(c) of the Original Lease shall be deleted.
(vi) The following shall be added to the end of Section 12.04 of
the Original Lease: "Tenant shall submit any "as built" drawings or drawings
17
and specifications required under this Lease by AutoCAD or comparable file
format to the extent Tenant has the same prepared in AutoCAD or comparable
file format."
(vii) In Section 13.01 of the Original Lease, the phrase
"(collectively, "Fixtures") shall be inserted after the phrase "whether or not
by or at the expense of Tenant," in the first sentence of such section.
(viii) The phrase "(including without limitation all computer,
telephone and other cabling and wiring installed by or on behalf of Tenant)"
shall be inserted after the phrase "communications equipment" in the second line
of Section 13.02 of the Original Lease but such phrase shall not apply to the
Remainder Premises.
(ix) The following shall be added as Section 13.05 of the
Original Lease, but shall not apply to the Remainder Premises: "13.05.
Notwithstanding anything in this Lease to the contrary, Tenant shall, from time
to time during the Term, remove any computer, telephone and other cabling and
wiring installed by Tenant that is not being used or designated for future use
to the extent required by law."
(x) In the 10th line from the end of Section 14.01 of the
Original Lease, the phrase "performed only by contractor(s) designated by
Landlord, provided such contractor(s) charge competitive rates for such work"
shall be deleted and shall be replaced by the phrase: "performed by Landlord at
Tenant's expense, provided that Landlord's rates for such work are competitive
with those charged by unaffiliated contractors."
(xi) Exhibit I of the Original Lease shall be deleted in its
entirety and shall be replaced by the Standard Cleaning Specifications attached
as Schedule B hereto and made a part hereof.
(xii) Landlord and Tenant hereby acknowledge that there are no
outstanding obligations of either Landlord or Tenant pursuant to the
Supplemental Agreement, and such Supplemental Agreement shall be deemed to be
null and void and of no further effect.
(xiii) Paragraph 4 of the Third Amendment of Lease shall be
deleted in its entirety, and Tenant hereby acknowledges that any Work Allowance
due to Tenant pursuant to such Paragraph 4 has been paid by Landlord to Tenant
prior to the date of this Agreement.
(b) From and after the Extension Term Commencement Date, with respect to
the Renewal Premises only, the Lease shall be further amended as follows:
(i) Subparagraph (x) of Section 3.07(a) of the Original Lease,
which reads "(x) management fees, which shall be deemed to be an annual amount
equal to the product of the Management Factor (as hereinafter defined) and the
rentable square foot area of the Building' shall be deleted and shall be
replaced by the following:
"(x) management fees, provided that if Landlord or an affiliate of
Landlord is the managing agent of the Building, then the annual management fee
shall be equal to two and one-half percent (2.5%) of the aggregate rents,
additional rents and other charges payable to Landlord by tenants of the
Building."
18
(ii) Sections 3.07(c) and 3.07(d) of the Original Lease shall be
deleted in their entirety.
(iii) Section 3.07(k) of the Original Lease shall be deleted in
its entirety."
(c) From and after the Remainder Premises Expiration Date, the Lease
shall be further amended as follows:
(i) In the sixth and seventh lines of Section 16.01 of the
Original Lease, the phrase "24 hours a day, seven days a week" shall be deleted
and shall be replaced by the phrase "from 6 a.m. through 12 midnight, Monday
through Sunday,".
(ii) Paragraphs 6(d), (h) and (i) of the First Amendment of
Lease shall be deleted in their entirety and the phrase "or Tenant's use of the
New Lobby Space other than as lobby and reception purposes, or for Tenant's
security office (i.e., a location at which security guards will be stationed for
purposes of screening and escorting visitors to the Premises) or for display of
Tenant's products or the sale of back issues of The Wall Street Journal" is
hereby inserted at the end of clause (b)(i) of Section 9.01 of the Original
Lease.
(d) From and after the Extension Term Commencement Date, Article 19 of
the Original Lease, as amended by those certain letter agreements dated May 19,
1987 and December 1, 1988, shall be deleted in its entirety.
(e) Notwithstanding anything contained in this Agreement, from the
date of this Agreement through and including the Remainder Premises Expiration
Date, the sections described in Section 12(b) above shall continue to apply to
the Remainder Premises.
13. Restoration of the Original Premises. Tenant hereby acknowledges that
Landlord has paid to Tenant any and all sums due with respect to the Restoration
Contribution and the Additional Contribution, as such terms are defined in the
Eighth Amendment of Lease.
14. Notices. Article 32 of the Lease is deleted in its entirety and the
following is substituted therefor:
ARTICLE 32
Notices
Section 32.01. Except as otherwise expressly provided in this Lease, any
bills, statements, consents, notices, demands, requests or other communications
given or required to be given under this Lease ("notice(s)" shall be in writing
and shall be deemed sufficiently given or rendered if delivered by hand (against
a signed receipt), by a recognized overnight courier service (with a signed
receipt) or if deposited in a securely fastened, postage prepaid envelope in a
depository that is regularly maintained by the U.S. Postal Service, sent by
registered or certified mail (return receipt requested) and in either case
addressed:
19
if to Tenant, as follows: Dow Xxxxx & Company, Inc., Vice President,
General Services, 0000 Xxxxx Xxxxx 0 xx Xxxxx Xxxx (xx sent by Federal Express
or other overnight courier), and only if delivered by hand, Xxxxxxxx 0, Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000 Attention: Xx. Xxx X. Xxxxx, with a copy to
Patterson, Belknap, Xxxx & Xxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx Xxxxxxxx, Esq.
if to Landlord, at Landlord's address set forth in this Lease,
Attention: General Counsel, with a copy to each of (i) WFP Tower A Co. L.P.,
c/o Brookfield Financial Properties, Inc., Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Senior Vice President, Director of Leasing, (ii)
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq., and (iii) the
holder of any mortgage or the lessor under any underlying lease who may have
requested the same, by notice given in accordance with the provisions of
this Article 32, at the address designated by such holder or lessor, or
to such other address(es) as either Landlord or Tenant may designate as its
new address(es) for purpose by notice given to the other in accordance with the
provisions of this Article 32.
Section 32.02. Notices shall be deemed to have been rendered or given (i)
on the business day delivered, if delivered by hand or by nationally recognized
overnight courier service, prior to 5:00 p.m. of such business day, or if
delivered on a day other than a business day or after 5:00 p.m. on any day, then
on the next business day following such delivery, or (ii) three (3) business
days after the date mailed, if mailed by registered or certified mail (return
receipt requested) as provided in Section 32.01. Notice given by the Managing
Agent or Landlord's General Counsel on behalf of Landlord or by counsel for
either party on behalf of such party shall be deemed valid notices if addressed
and sent in accordance with the provisions of this Article.
15. Restoration of Elevator Lobby. After the earlier of (i) the Remainder
Premises Expiration Date, and (ii) the date that Tenant's lease of the Remainder
Premises shall have been terminated or a portion of the Remainder Premises shall
have been sublet, Landlord may, at Landlord's cost, remove the glass wall(s) in
the +32'0" lobby level of the Building, that are near the elevators serving the
8th to 16th floors.
16. Intentionally Omitted.
17. Estoppel. Tenant represents and warrants to Landlord that (a) the
Lease, as modified by this Agreement, is otherwise unmodified and in full force
and effect, (b) all Fixed Rent and Additional Charges due through November 30,
2003 have been paid and (c) to the best knowledge of Tenant, Landlord is not in
default in the performance of any of its obligations under the Lease nor has any
event occurred which with the giving of notice or the passage of time would
constitute a default.
20
18. Authorization. If Tenant is a corporation or limited liability company
or a limited liability partnership, each person executing this Agreement on
behalf of Tenant hereby covenants, represents and warrants that Tenant is duly
incorporated or duly qualified (if foreign) and is authorized to do business in
the State of New York (a copy of evidence thereof to be supplied to Landlord
upon request); and that each person executing this Agreement on behalf of Tenant
is either an officer, member or partner of Tenant and that he or she is duly
authorized to execute, acknowledge and deliver this Agreement to Landlord (a
copy of a resolution to that effect to be supplied to Landlord upon request).
19. Offer Space Option. From and after the date of this Agreement, Tenant
shall have the following option:
(a) As used herein:
"Available" means, as to any space, that such space is vacant and free
of any present or future possessory right now or, to the extent specified in
clause (ii) of the following sentence, hereafter existing in favor of any third
party. Anything to the contrary contained herein notwithstanding, Tenant's right
of first offer pursuant to this Section 19 is subordinate to (i) any right of
offer, right of first refusal, renewal right or similar right or option in favor
of any third party existing as of the date of this Agreement, as set forth in
Schedule C annexed to this Agreement, and (ii) Landlord's right to extend the
term of lease of existing occupants on a floor located within the Offer Space
(as defined below) on the date of this Agreement whether or not pursuant to an
option to renew.
"Offer Space" means all office space located on the twelfth (12th)
floor in the Building. As used in this Section 19, the terms "such Offer Space"
and "applicable Offer Space" and "Offer Space" where the context so requires,
shall refer to the particular portion of the entire Offer Space that is set
forth in the applicable Offer Notice from time to time.
(b) Provided (i) the Lease shall not have been terminated, (ii) Tenant
shall not be in default beyond any applicable notice and grace period provided
under the Lease, and (iii) Tenant (including any affiliate of Tenant) shall
physically occupy at least 80% of the rentable area of the entire Premises, if
at any time during the Term, either the Offer Space becomes, or Landlord
reasonably anticipates that the Offer Space will become, Available, Landlord
shall give to Tenant notice (an "Offer Notice") thereof, specifying (A) the
location and rentable square footage of such Offer Space, (B) Landlord's
determination of the Fair Offer Rental for such Offer Space, which shall
constitute the maximum thereof Landlord can claim as the Fair Offer Rental for
such space in any arbitration thereof ("Landlord's Maximum Offer Determination")
and (C) the date or estimated date that such offer space has or shall become
Available (the "Anticipated Inclusion Date"). "Fair Offer Rental" means the
fixed annual rent that a willing lessee would pay pursuant to a direct lease and
a willing lessor would accept for the applicable Offer Space, pursuant to a
direct lease, determined on the basis of then-current prevailing rent in the
Building for comparable space on a direct lease basis and then-current rent for
comparable space on a direct lease basis in other first-class office buildings
in the vicinity of the Building, taking into account all relevant
factors.
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(c) Provided that on the date that Tenant exercises the Offer Space
Option and on the Offer Space Inclusion Date (as hereinafter defined) (i) the
Lease shall not have been terminated, (ii) Tenant shall not be in default beyond
any applicable notice and grace period provided under the Lease, and (iii)
Tenant (including any affiliate of Tenant) shall physically occupy at least 80%
of the rentable area of the entire Premises, Tenant shall have the option (the
"Offer Space Option"), exercisable by notice (an "Acceptance Notice") given to
Landlord on or before the date that is 20 days after the giving of the Offer
Notice (time being of the essence) to include the Offer Space in the Premises.
Tenant shall notify Landlord in the Acceptance Notice whether Tenant accepts or
disputes Landlord's Maximum Offer Determination, and if Tenant disputes
Landlord's Maximum Offer Determination, the Acceptance Notice shall set forth
Tenant's good faith determination of the Fair Offer Rental for such Offer Space,
which shall constitute the minimum that Tenant can claim as the Fair Offer
Rental for such space in any arbitration thereof ("Tenant's Minimum Offer
Determination"). If Tenant fails to object to Landlord's Maximum Offer
Determination in the Acceptance Notice and to set forth therein Tenant's Minimum
Offer Determination, then Tenant shall be deemed to have accepted Landlord's
Maximum Offer Determination as the Fair Offer Rental for such Offer Space.
(d) If Tenant timely delivers the Acceptance Notice, then, on the
date on which Landlord delivers vacant possession of the Offer Space to Tenant
or, if Tenant or any affiliate of Tenant shall then be in occupancy or control
of such Offer Space, then on the date on which Landlord notifies Tenant that the
lease of such Offer Space shall commence (the "Offer Space Inclusion Date"), the
Offer Space shall become part of the Premises, upon all of the terms and
conditions set forth in the Lease, except (i) Fixed Rent shall be equal to the
Fair Offer Rental, (ii) Tenant's Proportionate PILOT Share shall be increased to
a percentage equal to Tenant's Proportionate PILOT Share plus a fraction the
numerator of which is the number of rentable square feet in the Offer Space and
the denominator of which is the number of rentable square feet in the Building,
measured according to the same methodology Landlord used to measure the size of
the Offer Space, (iii) Tenant's Proportionate Operating Share shall be increased
to a percentage equal to Tenant's Proportionate Operating Share plus a fraction
the numerator of which is the number of rentable square feet in the Offer Space
and the denominator of which is the number of rentable square feet in the
Building, measured according to the same methodology Landlord used to measure
the size of the Offer Space, (iv) Landlord shall not be required to perform any
Landlord's Work or any other work, pay a Landlord's contribution or a Work
Allowance or any other amount, or render any services to make the Building or
the Offer Space ready for Tenant's use or occupancy, and Tenant shall accept the
Offer Space in its "as is" condition on the Offer Space Inclusion Date, (v) the
term of the lease of the Offer Space shall be co-terminous with the Term of the
Lease with respect to the Premises, except that, if the Offer Space Inclusion
Date is less than five years prior to the Premises Expiration Date, Landlord, in
its Offer Notice, shall specify whether the term of the lease of the Offer Space
shall be co- terminous with the Term of the Lease with respect to the Premises
or shall be ten years from the Offer Space Inclusion Date, and (vi) as may be
otherwise set forth in the Offer Notice. Notwithstanding the provisions of
Section 6 of this Agreement, if the term of the lease of the Offer Space shall
not be co-terminous with the term of lease with respect to the Premises, Tenant
shall not have the right to renew the term of lease of the Offer Space. If
Landlord fails to specify in the Offer Notice the term of the lease of the Offer
Space, then such term shall be deemed to be ten years from the Offer Space
Inclusion Date.
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(e) If in the Acceptance Notice Tenant disputes Landlord's
determination of Fair Offer Rental, and Landlord and Tenant fail to agree as to
the amount thereof within 20 Business Days after the giving of the Acceptance
Notice, then the dispute shall be resolved by arbitration in the same manner as
a dispute involving Fair Market Rent pursuant to Section 6 of this Agreement;
provided, that such arbitration proceeding shall not commence prior to the date
that is one year before the estimated date on which such Offer Space is to
become Available. If the dispute shall not have been resolved on or before the
Offer Space Inclusion Date, then pending such resolution, Tenant shall pay, as
Fixed Rent for the applicable Offer Space, an amount equal to Landlord's Maximum
Offer Determination. If such resolution shall be in favor of Tenant, then within
20 days after the final determination of Fair Offer Rental, Landlord shall
refund to Tenant any overpayment, together with interest thereon at the Base
Rate from the date(s) paid by Tenant until the date refunded by Landlord or the
date of application of the credit. The "Base Rent" shall mean the base rate or
prime rate from time to time announced by Citibank, N.A. (or a successor bank if
Citibank, N.A. is no longer in existence) to be in effect at its principal
office in New York, New York.
(f) Landlord shall use reasonable efforts timely to deliver to Tenant
any Offer Space, and if the occupant of the applicable Offer Space holds over
beyond the term of its lease (other than Tenant or an affiliate of Tenant),
Landlord shall promptly commence summary dispossess proceedings and diligently
pursue the eviction of such occupant. If Landlord is unable to deliver
possession of the Offer Space to Tenant (when delivery of possession is required
as a condition to the occurrence of the Offer Space Inclusion Date) for any
reason on or before the date on which Landlord anticipates that the Offer Space
shall be Available as set forth in the Offer Notice, the Offer Space Inclusion
Date shall be the date on which Landlord is able to so deliver possession and
Landlord shall have no liability to Tenant therefor and this Lease shall not in
any way be impaired. This Section 19(f) constitutes "an express provision to the
contrary" within the meaning of Section 223-a of the New York Real Property Law
and any other law of like import now or hereafter in effect. Notwithstanding
anything to the contrary contained in the Lease, if the Offer Space Inclusion
Date shall not have occurred on or before the date that is six months after the
date on which Landlord anticipates that the Offer Space shall be Available as
set forth in the Offer Notice (the "Offer Space Outside Date"), then Tenant
shall have the right, at any time within the twenty-five (25) day period next
following the Offer Space Outside Date (but before the Offer Space Inclusion
Date shall have occurred), but not thereafter, to rescind Tenant's exercise of
such Offer Space Option on written notice to Landlord, effective the fifth (5th)
day after such notice is given, failing which Tenant shall be deemed to have
waived Tenant's right to rescind its exercise of such Offer Space Option. The
parties hereto acknowledge and agree that such rescission right shall be
Tenant's sole and exclusive remedy in the event the Offer Space Inclusion Date
shall not have occurred on or before the Offer Space Outside Date, and that
Landlord shall have no other liability for failure to give Tenant possession of
the Offer Space.
(g) If Tenant fails timely to give an Acceptance Notice, then (i)
Landlord may enter into one or more leases of the particular Offer Space with
respect to which Tenant did not give an Acceptance Notice with third parties on
such terms and conditions as Landlord shall determine, the Offer Space Option
with respect only to the particular space that was the subject of the Offer
Notice shall be null and void and of no further force and effect and Landlord
shall have no further obligation to offer such Offer
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Space to Tenant, and (ii) Tenant shall, as soon as reasonably practicable after
demand by Landlord, execute an instrument reasonably satisfactory to Landlord
and Tenant confirming Tenant's waiver of, and extinguishing, the Offer Space
Option with respect only to the particular space that was the subject of the
Offer Notice, but the failure by Tenant to execute any such instrument shall not
affect the provisions of clause (i) above.
(h) Promptly after the occurrence of the Offer Space Inclusion Date,
Landlord and Tenant shall confirm the occurrence thereof and the inclusion of
the Offer Space in the Premises by executing an instrument reasonably
satisfactory to Landlord and Tenant; provided, that failure by Landlord or
Tenant to execute such instrument shall not affect the inclusion of the Offer
Space in the Premises in accordance with this Section 19.
(i) Tenant shall have only one Offer Space Option to lease Offer
Space pursuant to this Section 19, so that after Landlord shall have given
Tenant one Offer Notice for an Offer Space, Landlord shall not be obligated
thereafter to give any further Offer Notice to Tenant with respect to such Offer
Space, whether or not Landlord shall have exercised its Offer Space Option with
respect to such Offer Space.
20. Governing Law. This Agreement shall be governed by, and construed in
accordance with, New York law without regard to conflict of laws principles.
21. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
22. Not Binding Offer. This Agreement is offered for signature by Tenant.
It is understood that this Agreement shall not be binding upon Landlord or
Tenant unless and until Landlord or Tenant shall have executed and delivered to
each other a fully executed copy of this Agreement.
23. No Oral Modification. This Agreement may not be changed or terminated
orally, but only by an agreement in writing signed by Landlord and Tenant.
24. Ratification; No Other Changes. Except as amended by this Agreement,
the Lease is ratified and confirmed and remains in full force and effect. All
references in the Lease to "this lease" shall hereafter be deemed to refer to
the Lease as amended by this Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement
as of the day and year first above written.
LANDLORD:
WFP TOWER A CO. L.P.
By: WFP Tower A Co. G.P. Corp.,
General Partner
By: /s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President Director of
Leasing
TENANT:
DOW XXXXX & COMPANY, INC.
By: /s/Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title:Vice President, General Services
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SCHEDULE X-0
XXXXX XXXX XXX XXXXX 0
00
XXXXXXXX X-0
XXXXX XXXX XXX XXXXX 00 XXX XXXXX PLAN FOR 10TH FLOOR
GATEHOUSE MECHANICAL ROOM
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SCHEDULE A-3
FLOOR PLAN FOR FLOOR 11
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SCHEDULE A-4
FLOOR PLAN FOR NEW LOBBY SPACE
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SCHEDULE A-5
FLOOR PLAN FOR 10TH FLOOR
GATEHOUSE MECHANICAL ROOM
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SCHEDULE A-6
FLOOR PLAN FOR 41ST FLOOR
MECHANICAL PENTHOUSE
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SCHEDULE B
STANDARD CLEANING SPECIFICATIONS
Schedule of Service
Cleaning will be done daily, Monday through Friday, except for Union Holidays
(in the applicable union contract for cleaning staff). Blitz Cleaning is a
limited exception, however:
Although there is no cleaning on New Year's Day, President's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day,
reduced services ("Blitz Cleaning") are provided on the other holidays (e.g.,
Good Friday, Columbus Day, and the Day After Thanksgiving). In Blitz Cleaning, a
skeleton crew, including a day xxxxxx, empties wastebaskets and ash trays,
removes rubbish in tenanted areas, and provides some basic services in the
common areas.
Cleaning Times: 5 PM through 6 AM.
Supervision
A cleaning supervisor will verify that work has been completed in tenant
premises, lights turned off, doors locked, and offices left in a neat condition
for the next day's business. The cleaning staff will be instructed to keep
Tenant's Premises locked during cleaning and to admit only other cleaning staff
authorized to be within them.
Floor Care
Carpeted floors and rugs will be vacuumed nightly. Hard floors (including
ceramic tile, stone, terrazzo, wood and the like, and resilient flooring
(linoleum, rubber and asphalt tile) will be swept nightly.
Office Cleaning
Nightly, cleaners will:
Dust and wipe clean all desk tops, telephones and office equipment.
Dust and wipe clean all uncluttered office furniture, including desks,
file cabinets, credenzas, and bookcases, as well as wall fixtures, window xxxxx
and convector enclosure tops. They will wash the xxxxx and convector tops when
accessible and necessary.
Empty and damp wipe all waste receptacles.
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Clean all water fountains and coolers, removing all fingerprints and
smudges.
Sweep or vacuum clean, as appropriate, all private stairwells.
As often as necessary to maintain a clean appearance, the cleaning contractor
will:
Dust all chair rails, trims and baseboards within reach.
Clean all metal and remove finger marks.
High Dusting
Certain procedures ("High Dusting") will be performed quarterly:
Dust all picture frames, charts, and similar wall hangings not reached in
nightly cleaning.
Dust all vertical surfaces, such as walls, partitions, doors and bucks
and other surfaces not reached in nightly cleaning.
Dust all pipes, ventilating, heating and air conditioning louvers, grates,
grills, ducts, high moldings and all other high areas not reached in nightly
cleaning.
Dust all exterior surfaces of lighting fixtures including bulbs, glass,
lenses and plastic or metal enclosures.
Dust and inspect all Venetian blinds.
Core Lavatories
Every night a xxxxxx will:
Sweep and wash lavatory floors using approved disinfectants. Machine
scrubbing will be done weekly.
Wash and disinfect both sides of all toilet seats.
Scour, wash and disinfect all basins, bowls and urinals using an odorless
disinfectant.
Wash and polish all mirrors, powder shelves, bright work fixtures and
enameled surfaces, including flushometer piping and toilet seat hinges.
Dust and clean, washing where necessary, all partitions, tile walls,
dispensers and receptacles in lavatories. Every two weeks, a xxxxxx will wash
and polish all wall tiles and stall surfaces.
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Fill all toilet tissue holders with tissue furnished by Landlord.
Throughout each business day, a xxxxxx or matron will maintain an adequate
supply of tissue, paper towels, hand soap, the towels and soap to be supplied by
Landlord's cleaning contractor at Tenant's expense. The xxxxxx or matron will
also police the lavatory and maintain it in a neat, orderly condition throughout
the day.
Empty and damp clean paper towel receptacles and sanitary napkin disposal
receptacles.
Wash waste cans and receptacles in lavatories when necessary but at least
once a week. Replace plastic waste can liners weekly.
Glass Cleaning
All exterior and interior windows will be cleaned, weather permitting,
quarterly. Mail chute glass and floor directory glass will also be cleaned
quarterly.
Additional Cleaning Services
Any services not listed above will be solely at Tenant's expense. In particular,
this includes:
Washing and/or waxing non carpeted flooring; spotting and shampooing
carpeting.
The cleaning, maintaining and furnishing of lavatory supplies for private
(non core) lavatories.
Washing and relamping of all light fixtures.
Cleaning any interior glass other than windows, mail chutes and
directories.
Exterminating in Tenant's Premises (to be done by Landlord's contractor).
Any cleaning and related rubbish removal for computer rooms, training
rooms, copy centers/rooms, cafeterias, kitchens, pantries or any other areas
used for the preparation, distribution or consumption of food.
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SCHEDULE C
Holders of Rights Superior to
Tenant's Offer Space Option
Xxxxxx Brothers Inc.
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