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EXHIBIT 10.55
THIS FIRST AMENDMENT TO LEASE AGREEMENT, made as of
the 31st day of December, 1982, by and between
CORPORATE PROPERTY INVESTORS, a Massachusetts
business trust (hereinafter referred to as the
"Lessor"), and 305-313 EAST 47th STREET ASSOCIATES, a
New York partnership consisting of Corporate Realty
Consultants, Inc., a Delaware corporation and CRC
Advisory Corp., a Delaware corporation (hereinafter
referred to as "Lessee").
W I T N E S S E T H:
Lessor and Lessee have heretofore entered into that certain Lease
Agreement dated June 22, 1982 (the "Lease") by which Lessor leased to Lessee the
land only described in Exhibit A hereto (the "Land") and known as 305-313 East
47th Street in the Borough of Manhattan, City of New York, and Lessor and Lessee
now desire to amend the Lease.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants contained in the Lease and herein, the parties hereby agree as
follows:
1. Article Two of the Lease is hereby amended and restated in its
entirety to be and read as follows:
"Section 2.1. Lessee hereby covenants and agrees to pay to
Lessor, at the address set forth in Section 11.1, annual rent
for the Land as follows:
(a) during the period commencing on the date
of this lease and ending December 31, 1982, an annual
rental of $780,000;
(b) during the period commencing January 1,
1983 and ending on December 31 of the year in which
the fifteenth anniversary of the Date of Substantial
Completion occurs (the "Base Rental Period"), an
annual rental equal to $450,000;
(c) during each succeeding fifteen year
period following the Base Rental Period (or, in the
case of the last of such period the period from the
commencement date of such period to the date on which
this Lease expires), the first of which periods shall
commence on the January 1 of the year
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following the end of the Base Rental Period and shall
end on the December 31 of the year in which the
fifteenth anniversary of the end of the Base Rental
Period occurs, the succeeding fifteen year periods
each to commence on the January 1 following the end
of the preceding year period and to end on the date
which is the fifteenth anniversary of the end of the
preceding fifteen year period (or, in the case of the
last such period, to the date on which this Lease
expires), an annual rental equal to the greater of
(i) the annual rental prevailing during the preceding
fifteen year period, or (ii) fifteen per cent (15%)
of the Appraised Fair Market Value of the Land
prevailing on December 31 of the year in which the
preceding fifteen year period ends.
"Section 2.2. The rent shall be paid in equal monthly
installments (in the case of an annual rental rate applying
during a period less than a calendar year, in monthly
installments equal to one-twelfth (1/12) of the annual rental
rate) during the calendar year, in advance on the first day of
each month or shorter period; provided, however, that in the
event that the annual rent for any calendar ear is not yet
known at the commencement of such year, because the Appraised
Fair Market Value of the Land has not yet been determined,
then Lessee shall continue to pay to Lessor monthly
installments based on the annual rental prevailing in the
preceding calendar year (or shorter period) until advised in
writing by Lessor of the new annual rental. After notice by
Lessor to Lessee of the new annual rental, Lessee shall pay,
at such time as the next monthly installment is due, a sum
equal to the new monthly rent plus the total amount of rent
due at the new annual rental and not therefore paid to Lessor.
In the event the new annual rental is less than that
prevailing in the preceding calendar year, Lessee shall be
entitled to a credit against future monthly installments in an
amount equal to the excess of amounts theretofore paid over
the new annual rent.
"Section 2.3. For the purposes of this Article Two,
the following terms shall have the following
meanings:
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"Appraised Fair Market Value of the Land" shall mean
the value of the Land as determined at Lessor's
expense by Landauer Associates Inc. or another
nationally recognized firm of independent real estate
appraisers selected by Lessor, calculated as of
December 31 of the relevant year as being the then
fair market value of the Land in accordance with
standard appraisal practices of the American
Institute of Real Estate Appraisers or any successor
organization. Such value shall be determined by the
appraiser as if the Land were free and clear of this
Lease, of any mortgages on the Land or the leasehold
created under this Lease, and as if there were no
building, structure or improvement of any kind on the
Land, and the Land were available for sale in a free
market consisting of willing buyers and sellers,
subject only to zoning and land use restrictions then
in effect. The appraiser shall render its valuation
in terms of a dollar value per square foot of the
Land, and the Land shall be considered to consist
(unless subsequently reduced in area by condemnation
or taking) of 12,562 square feet. By way of
illustration, if at December 31 of the year in which
the first fifteen year rental period after the Date
of Substantial Completion ends, the appraisal
indicated an Appraised Fair Market Value of the Land
of $1,000 per square foot, the annual rental during
the succeeding fifteen year rental period would be
$1,000 x 12,562 x .15, or $1,884,300 per annum.
"Date of Substantial Completion" shall mean the
earlier of (a) the date on which Lessee is first
awarded a Temporary Certificate of Occupancy by the
Buildings Department of the City of New York for the
Improvements upon completion of Lessee's current
program of construction, renovation and
rehabilitation thereof, or (b) January 1, 1984.
Lessor and Lessee may enter into a separate agreement
setting forth the Date of Substantial Completion."
2. In all other respects, the Lease is hereby ratified and confirmed as
being in full force and effect between Lessor and Lessee. From and after the
date of this
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Amendment, all references herein or in the Lease to "this Lease" or words of
similar import shall be read and construed to mean the Lease as amended hereby,
and the Lease, as amended hereby, shall be considered a single integrated
instrument.
3. Corporate Property Investors, refers to the trustees under an
Amended and Restated Declaration of Trust dated June 15, 1978, as amended, and
filed in the office of the Secretary of the Commonwealth of Massachusetts. The
obligations of the Lessor do not constitute personal obligations of Lessor or of
its trustees, shareholders, officers, employees or agents. All persons dealing
with Lessor shall look solely to the assets of Lessor for the satisfaction of
any liability of Lessor in respect of this Lease, and will not seek recourse
against the trustees, officers, shareholders, employees or agents of Lessor, or
any of them or their personal assets, for such satisfaction.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment as
of the date first set forth above.
LESSOR:
CORPORATE PROPERTY INVESTORS
By: /s/ Michael L. Johnson
------------------------------------------
Michael L. Johnson
LESSEE:
305-313 EAST 47th STREET ASSOCIATES
BY: CORPORATE REALTY CONSULTANTS, INC.
General Partner
By: /s/ Michael L. Johnson
------------------------------------------
Michael L. Johnson
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EXHIBIT A
All of that certain lot, piece or parcel of land, situate,
lying and being in the City, County and State of New York and bounded and
described as follows:
BEGINNING at a point in the northerly side of Forty-Seventh Street, distant one
hundred feet easterly from the intersection of the northerly side of
Forty-Seventh Street and the easterly side of Second Avenue; running thence
northerly parallel with Second Avenue, one hundred feet five inches to the
center line of the block; thence easterly along said line one hundred and
twenty-five feet; thence southerly parallel with Second Avenue, one hundred feet
five inches to the northerly side of Forty-Seventh Street; and thence westerly
along the northerly side of Forty-Seventh Street, one hundred and twenty-five
feet to the point of BEGINNING.
Said premises being known as 305-313 East 47th Street.
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305-313 EAST 47TH STREET ASSOCIATES,
a New York partnership,
consisting of
Corporate Realty Consultants, Inc.,
a Delaware corporation, and
CRC Advisory Corp.,
a Delaware corporation,
Mortgagor
and
CORPORATE PROPERTY INVESTORS,
a Massachusetts business trust,
Mortgagee
------------------------------------
CONSOLIDATED, AMENDED AND RESTATED
MORTGAGE
(LEASEHOLD)
------------------------------------
Dated: As of January 1, 1984
Location: 305-313 East 47th Street
New York, New York
RECORD AND RETURN TO:
Corporate Property Investors
230 Park Avenue, Suite 1225
New York, New York 10005
Attention: Peter T. Bepler, II
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THIS CONSOLIDATED, AMENDED AND RESTATED
MORTGAGE made as of 1st day of January, 1984, between
305-313 EAST 47TH STREET ASSOCIATES, a New York
partnership, consisting of Corporate Realty
Consultants, Inc., a Delaware corporation, and CRC
Advisory Corp., a Delaware corporation (hereinafter
referred to as "Mortgagor"), and CORPORATE PROPERTY
INVESTORS, a Massachusetts business trust
(hereinafter referred to as "Mortgagee").
PRELIMINARY STATEMENT
Mortgagee has heretofore extended to Mortgagor a purchase
money mortgage loan in the principal amount of $4,209,834, secured by a Mortgage
dated June 22, 1982 and evidenced by a Mortgage Note of even date therewith (the
"Purchase Money Mortgage"), and has heretofore extended to Mortgagor a
construction mortgage loan in a maximum principal amount of $16,790,166, secured
by a Mortgage dated July 1, 1982 and evidenced by a Mortgage Note of even date
therewith (the "Construction Mortgage"). Interest has accrued on the outstanding
principal amount of the Purchase Money Mortgage loan at the rate provided in the
note to December 31, 1983 in the amount of $1,094,233.60, and Mortgagee has
drawn to December 31, 1983 under the Construction Mortgage loan advances in the
aggregate
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principal amount of $11,394,382.35, and interest has accrued to December 31,
1983 on the principal amount of such advances from time to time outstanding of
$1,039,343.13. Mortgagor and Mortgagee desire to consolidate, continue and
coordinate the liens of the Purchase Money Mortgage and the Construction
Mortgage into a single lien secured and governed by the terms of this
instrument, which shall be considered between Mortgagor and Mortgagee to
constitute an amendment and restatement in full, and consolidation of, the
Purchase Money Mortgage and the Construction Mortgage, and likewise desire to
consolidate the outstanding principal amounts of, and accrued interest on, the
Purchase Money Mortgage loan and the Construction Mortgage loan into a single
loan, representing the aggregate balance of the Purchase Money Mortgage note and
the Construction Mortgage note on the date hereof of $17,737,793.08, and to
provide for future advances to Mortgagee up to a maximum principal amount of
$3,262,206.92, or so much thereof as may be advanced, all to be evidenced by a
new mortgage note of even date herewith and secured hereby, in a maximum
principal amount of $21,000,000.
NOW THEREFORE, the parties hereto agree as follows:
WITNESSETH:
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To secure the payment of an indebtedness in the principal sum
of Twenty One Million and No/100 Dollars ($21,000,000), lawful money of the
United States of America, to be paid with interest (said indebtedness, interest
and all other sums which may or shall become due hereunder being hereinafter
collectively referred to as the "Debt") according to a certain note dated the
date hereof in the principal sum of Twenty One Million and No/100 Dollars
($21,000,000) made by Mortgagor to the order of Mortgagee (hereinafter referred
to as the "Note"), or so much thereof as shall be advanced thereon from time to
time, Mortgagor has mortgaged, given, granted, bargained, sold, aliened,
enfeoffed, conveyed, confirmed and assigned, and by these presents does
mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm and assign
unto Mortgagee all right, title and interest of Mortgagor in and to the property
hereinafter described, such property, rights and interests being hereinafter
collectively called the "Mortgaged Property"):
(a) the Ground Lease and the leasehold estate created thereby
(the "Ground Lease"), which Ground Lease is more fully described in
Exhibit A attached hereto;
(b) All modifications, extensions and renewals of the Ground
Lease and all credits, deposits, options, privileges and rights of
Mortgagor as tenant under the
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Ground Lease, including, but not limited to, the right, if any, of
Mortgagor to renew the Ground Lease for any succeeding term or terms
thereof;
(c) all buildings, structures and improvements now or
hereafter located on the real property specified in the Ground Lease
(hereinafter referred to as the "Improvements");
(d) all easements, rights-of-way, rights to the use of
streets, ways, alleys and passages, sewer rights, waters, water
courses, water rights and powers, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments, and
appurtenances of any nature whatsoever, in any way belonging, relating
or pertaining to the Mortgaged Property;
(e) all machinery, apparatus, equipment, fittings, fixtures
and other property of every kind and nature whatsoever owned by
Mortgagor, or in which Mortgagor has or shall have an interest, now or
hereafter located upon the Mortgaged Property, or appurtenances
thereto, and usable in connection with the present or future operation
and occupancy of the Mortgaged Property and all building equipment,
materials and supplies of any nature whatsoever owned by Mortgagor, or
in which Mortgagor has or shall have an interest, now or hereafter
located upon the Mortgaged Property (hereinafter collectively referred
to as the
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"Equipment"), and the right, title and interest of Mortgagor in and to
any of the Equipment which may be subject to any security agreements
(as defined in the Uniform Commercial Code of New York);
(f) all awards or payments, including interest thereon, and
the right to receive the same, which may be made with respect to the
Mortgaged Property, whether from the exercise of the right of eminent
domain (including any transfer made in lieu of the exercise of said
right), or for any other injury to or decrease in the value of the
Mortgaged Property;
(g) all leases and other agreements affecting the use or
occupancy of the Mortgaged Property now or hereafter entered into
(hereinafter referred to as the Leases) and the rights to receive and
apply the rents, issues and profits of the Mortgaged Property
(hereinafter referred to as the "Rents") to the payment of the Debt;
(h) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without
limitation, the right to receive and apply the proceeds of any
insurance, judgments, or settlements made in lieu thereof, for damage
to the Mortgaged Property;
TOGETHER WITH the right, in the name and on behalf of
Mortgagor, to appear in and defend any action or
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proceeding brought with respect to the Mortgaged Property and to commence any
action or proceeding to protect the interest of Mortgage in the Mortgaged
Property.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the proper use and benefit of Mortgagee, and the successors
and assigns of Mortgagee, forever.
PROVIDED, ALWAYS, and these presents are upon the express
condition, if Mortgagor shall well and truly pay to Mortgagee the Debt at the
time and in the manner provided in the Note and this Mortgage and shall well and
truly abide by and comply with each and every covenant and condition set forth
herein and in the Note, then these presents and the estate hereby granted shall
cease, determine and be void.
ANY Mortgagor covenants with and represents and warrants to
Mortgagee as follows:
1. Payment of Debt. Mortgagor will pay the Debt at the time
and in the manner provided for its payment in the Note and in this Mortgage.
2. Warranty of Title. Mortgagor warrants the title to the
Mortgaged Property.
3. Insurance. Mortgagor (i) will keep the Improvements and the
Equipment insured against loss or damage by fire and such other hazards as
Mortgagee shall from time to time require in amounts approved by Mortgagee, not
exceeding in the aggregate 100% of the full insurable
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value of the Improvements and the Equipment and (ii) will maintain rental and
business interruption insurance and such other forms of insurance coverage with
respect to the Mortgaged Property as Mortgagee shall from time to time require
in amounts approved by Mortgagee. All policies of insurance (hereinafter
referred to as the "Policies") shall be issued by an insurer lawfully doing
business in New York and acceptable to Mortgagee and shall contain the standard
New York mortgage clause endorsement or an equivalent endorsement satisfactory
to Mortgagee naming Mortgagee as the person to which all payments made by such
insurance company shall be paid. Mortgagor shall pay the premiums for the
Policies as the same become due and payable. At the request of Mortgagee,
Mortgagor will assign and deliver duplicates or certificates of the Policies to
Mortgagee. Not later than thirty (30) days prior to the expiration date, of each
of the Policies, Mortgagor will deliver to Mortgagee a renewal policy together
with evidence of payment of premium satisfactory to Mortgagee. Sums paid to
Mortgagee by any insurer may be retained and applied by Mortgagee toward payment
of the Debt in such priority and proportions as Mortgagee in its discretion
shall deem proper or, at the discretion of Mortgagee, the same may be paid,
either in whole or in part, to Mortgagor for such purposes as Mortgagee shall
designate. If Mortgagee shall receive and retain such insurance proceeds, the
lien of this
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Mortgage shall be reduced only by the amount thereof received and retained by
Mortgagee and actually applied by Mortgagee in reduction of the Debt. The
provisions of subsection 4 of Section 254 of the Real Property Law of New York
covering the insurance of buildings against loss by fire shall not apply to the
terms of this Mortgage.
4. Payment of Taxes, etc. Mortgagor shall pay all taxes,
assessments, water rates, sewer rents and other charges, including vault charges
and license fees for the use of vaults, chutes and similar areas adjoining the
premises on which the leasehold is located now or hereafter levied or assessed
against the Mortgaged Property (hereinafter referred to as the "Taxes") prior to
the date upon which any fine, penalty, interest or cost may be added thereto or
imposed by law for the nonpayment thereof. Mortgagor shall deliver to Mortgagee,
upon request, receipted bills, cancelled checks and other evidence satisfactory
to Mortgagee evidencing the payment of the Taxes prior to the date upon which
any fine, penalty, interest or cost may be added thereto or imposed by law of
the nonpayment thereof.
5. Escrow Fund. Mortgagor will, at the option of the
Mortgagee, pay to Mortgagee, on the first day of each calendar month one-twelfth
of an amount (hereinafter referred to as the Escrow Fund) which would be
sufficient to pay the Taxes payable, or estimated by Mortgagee to be
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payable, during the ensuing twelve (12) months. Mortgagee will apply the Escrow
Fund to payments required to be made by Mortgagor pursuant to paragraph 4
hereof. If the amount of the Escrow Fund shall exceed the amounts due pursuant
to paragraph 4 hereof, Mortgagee shall, in its discretion, (a) return any excess
to Mortgagor, (b) credit such excess against the Debt in such priority and
proportions as Mortgagee in its discretion shall deem proper, or (c) credit such
excess against future payments to be made to the Escrow Fund. In allocating such
excess, Mortgagee may deal with the person shown on the records of Mortgagee to
be the owner of the Mortgaged Property. If the Escrow Fund is not sufficient to
pay the Taxes, as the same becomes payable, Mortgagor shall pay to Mortgagee,
upon request, an amount which Mortgagee shall estimate as sufficient to make up
the deficiency. Until expended or applied as above provided, any amounts in the
Escrow Fund may be commingled with the general funds of Mortgagee and shall
constitute additional security for the Debt and shall not bear interest.
6. Condemnation. Notwithstanding any taking by any public or
quasi-public authority through eminent domain or otherwise, Mortgagor shall
continue to pay the Debt at the time and in the manner provided for its payment
in the Note and in this Mortgage and the Debt shall not be reduced until any
award or payment therefor shall have been actually received and applied by
Mortgagee to the discharge of the
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Debt. Mortgagee may apply any such award or payment to the discharge of the Debt
whether or not then due and payable in such priority and proportions and
Mortgagee in its discretion shall deem proper. If the Mortgaged Property is
sold, through foreclosure or otherwise, prior to the receipt by Mortgagee of
such award or payment, Mortgagee shall have the right, whether or not a
deficiency judgment on the Note shall have been sought, recovered or denied, to
receive such award or payment, or a portion thereof sufficient to pay the debt,
whichever is less. Mortgagor shall file and prosecute its claim or claims for
any such award or payment in good faith and due diligence and cause the same to
be collected and paid over to Mortgagee, and hereby irrevocably authorizes and
empowers Mortgagee, in the name of Mortgagor or otherwise, to collect and
receipt for any such award or payment and to file and prosecute such claim or
claims, and although it is hereby expressly agreed that the same shall not be
necessary in any event, Mortgagor shall, upon demand of Mortgagee, make, execute
and deliver any and all assignments and other instruments sufficient for the
purpose of assigning any such award or payment to Mortgagee, free and clear of
any encumbrances of any kind or nature whatsoever.
7. Leases and Rents. Subject to the term of this paragraph,
Mortgagee waives the right to enter the Mortgaged Property for the purpose of
collecting the rents and grants
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Mortgagor the right to collect the Rents. Mortgagor shall hold the Rents, or an
amount sufficient to discharge all current sums due on the Debt, in trust of or
use in payment of the Debt. The right of Mortgagor to collect the Rents may be
revoked by Mortgagee upon any default by Mortgagor as shall be set forth in the
notice of such revocation. Following such notice Mortgagee may retain and apply
the Rents toward payment of the Debt in such priority and proportions as
Mortgagee, in its discretion, shall deem proper, or to the operation,
maintenance and repair of the Mortgaged Property. Mortgagor shall not, without
the consent of Mortgagee, make, or suffer to be made, any Leases or cancel or
modify any Leases or accept prepayments of instalments of the Rents for a period
of more than one (1) month in advance or further assign the whole or any part of
the Rents. Mortgagee shall have all of the rights against tenants of the
Mortgaged Property as set forth in Section 291-f of the Real Property Law of New
York. Mortgagor shall (a) fulfill or perform each and every provision of the
Leases on the part of Mortgagor to be fulfilled or performed, (b) promptly send
copies of all notices of default which Mortgagor shall send or receive under the
Leases to Mortgagee, and (c) enforce, short of termination of the Leases, the
performance or observance of the provisions thereof by the tenants thereunder.
In addition to the rights which Mortgagee may have herein, in
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the event of default under this Mortgage, Mortgagee, at its option, may require
Mortgagor to pay monthly in advance to Mortgagee, or any receiver appointed to
collect the Rents, the fair and reasonable rental value for the use and
occupation of such part of the Mortgaged Property as may be in possession of
Mortgagor. Upon default in any such payment, Mortgagor will vacate and surrender
possession of the Mortgaged Property to Mortgagee, or to such receiver and, in
default thereof, Mortgagor may be evicted by summary proceedings or otherwise.
Nothing contained in this paragraph shall be construed as imposing on Mortgagee
any of the obligations of the lessor under the Leases.
8. Maintenance of the Mortgaged Property. Mortgagor shall
caused the Mortgaged Property to be maintained in good condition and repair and
will not commit or suffer to be committed any waste of the Mortgaged Property.
The Improvements shall not be removed, demolished or materially altered, without
the consent of Mortgagee. Mortgagor shall promptly comply with all laws, orders
and ordinances affecting the Mortgaged Property, or the use thereof, and shall
promptly repair, replace or rebuild any part of the Mortgaged Property which may
be damaged or destroyed by any casualty (including any casualty for which
insurance was not obtained or obtainable) or which may be affected by any
proceeding of the character referred to in paragraph 6 hereof and shall complete
and pay for, within a
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reasonable time, any structure at any time in the process of construction or
repair on the Premises. If such casualty shall be covered by the Policies,
Mortgagor's obligation to repair, replace or rebuild such portion of the
Mortgaged Property shall be contingent upon Mortgagee paying Mortgagor the
proceeds of the Policies, or such portion thereof as shall be sufficient to
complete such repair, replacement or rebuilding, whichever is less. Mortgagor
will not, without obtaining the prior consent of Mortgagee, initiate, join in or
consent to any private restrictive covenant, zoning ordinance, or other public
or private restrictions, limiting or defining the uses which may be made of the
Mortgaged Property or any part thereof.
9. Estoppel Certificates. Mortgagor, within ten (10) days
after request by Mortgagee and at its expense, will furnish Mortgagee with a
statement, duly acknowledged and certified, setting forth the amount of the Debt
and the offsets or defenses thereof, if any.
10. Transfer or Encumbrance of the Mortgaged Property. No part
of the Mortgaged Property shall in any manner be further encumbered, sold,
transferred or conveyed, or permitted to be further encumbered, sold,
transferred or conveyed, without the consent of Mortgagee. The provisions of
this paragraph shall apply to each and every such further encumbrance, sale,
transfer or conveyance, regardless of whether or not Mortgagee has consented
thereto, or waived by
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its action or inaction its rights hereunder with respect to any such previous
further encumbrance, sale, transfer or conveyance.
11. Notice. Any notice, request, demand, statement or consent
made hereunder shall be in writing and shall be sent by registered or certified
mail, return receipt requested, and shall be deemed given when postmarked and
addressed as follows:
If to Mortgagor:
305-313 East 47th Street Associates
In care of Corporate Realty Consultants, Inc.,
230 Park Avenue
New York, NY 10169
If to Mortgagee:
Corporate Property Investors
230 Park Avenue
New York, NY 10169
Each party may designate a change of address by notice to the other party, given
at least five (5) days before such change of address is to become effective.
12. Sale of Mortgaged Property. If this Mortgage is
foreclosed, the Mortgaged Property, or any interest therein, may, at the
discretion of Mortgagee, be sold in one or more parcels or in several interests
or portions and in any order or manner.
13. Changes in Laws Regarding Taxation. In the event of the
passage after the date of this Mortgage of any law of the State of New York
deducting from the value of
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real property for the purpose of taxation any lien or encumbrance thereon or
changing in any way the laws for the taxation of mortgages or debts secured by
mortgage for state or local purposes or the manner of the collection of any such
taxes, and imposing a tax, either directly or indirectly, on this Mortgage, the
Note or the Debt, Mortgagee shall have the right, at its option, to declare the
Debt due and payable on a date specified in a prior notice to Mortgagor of not
less than thirty (30) days.
14. No Credits on Account of the Debt. Mortgagor will not
claim or demand or be entitled to any credit or credits on account of the Debt
for any part of the Taxes assessed against the Mortgaged Property or any part
thereof and no deduction shall otherwise be made or claimed from the taxable
value of the Mortgaged Property, or any part thereof, by reason of this Mortgage
or the Debt.
15. Offsets, Counterclaims and Defenses. Any assignee of this
Mortgage and the Note shall take the same free and clear of all offsets,
counterclaims or defenses of any nature whatsoever which Mortgagor may have
against any assignor of this Mortgage and the Note and no such offset,
counterclaim or defense shall be interposed or asserted by Mortgagor in any
action or proceeding brought by any such assignee upon this Mortgage and/or the
Note and any such right to interpose or assert any such offset, counterclaim
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or defense in any such action or proceeding is hereby expressly waived by
Mortgagor.
16. Other Security for the Debt. Mortgagor shall observe and
perform all of the terms, covenants and provisions contained in the Note and in
all other mortgages and other instruments or documents evidencing, securing or
guaranteeing payment of the Debt, in whole or in part, or otherwise executed and
delivered in connection with the Note, this Mortgage or the loan evidenced and
secured thereby.
17. Documentary Stamps. If at any time the United States of
America, any state thereof or any governmental subdivision of any such state,
shall require revenue or other stamps to be affixed to the Note or this
Mortgage, Mortgagor will pay for the same, with interest and penalties thereof,
if any.
18. Right of Entry. Mortgagee and its agents shall have the
right to enter and inspect the Mortgaged Property at all reasonable times.
19. Books and Records. Mortgagor will keep and maintain or
will cause to be kept and maintained on a fiscal year basis in accordance with
generally accepted accounting practices consistently applied proper and accurate
books, records and accounts reflecting all of the financial affairs of Mortgagor
and all items of income and expense in connection with the operation of the
Mortgaged Property or
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in connection with any services, equipment or furnishings provided in connection
with the operation of the Mortgaged Property, whether such income or expense be
realized by Mortgagor or by any other person whatsoever excepting lessees
unrelated to and unaffiliated with Mortgagor who have leased from Mortgagor
portions of the Mortgaged Property for the purpose of occupying the same.
Mortgagee shall have the right from time to time at all times during normal
business hours to examine such books, records and accounts at the office of
Mortgagor or other person maintaining such books, records and accounts and to
make copies or extracts thereof as Mortgagee shall desire. Mortgagor will
furnish Mortgagee annually, within sixty (60) days next following the end of
each fiscal year of Mortgagor, with (i) a complete executed copy of an audited
financial statement prepared by a certified public accountant acceptable to
Mortgagee covering the operation of the Mortgaged Property for such fiscal year
and containing a fully itemized statement of profit and loss and of surplus and
a balance sheet, and (ii) a complete executed copy of an audited financial
statement of Mortgagor for such fiscal year prepared by a certified public
accountant acceptable to Mortgagee and containing a fully itemized statement of
profit and loss and of surplus and a balance sheet. The fiscal year of Mortgagor
presently runs from November 1st to October 31st and the fiscal year of
Mortgagor shall not be
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subsequently changed without prior notice to Mortgagor. Within sixty (60) days
after the end of each fiscal year of Mortgagor, Mortgagor shall furnish to
Mortgagee a certificate signed by a duly authorized representative of Mortgagor
certifying on the date thereof either that there does not or does not exist an
event which constitutes, or which upon notice or lapse of time or both would
constitute, a default under the Note or this Mortgage and if such event exists,
the nature thereof and the period of time it has existed. Mortgagor shall
furnish to Mortgagee, within ten (10) days after request, such further detailed
information covering the operation of the Mortgaged Property and the financial
affairs of Mortgagor, or any affiliate of Mortgagor, as may be requested by
Mortgagee.
20. Performance of Other Agreements. Mortgagor shall observe
and perform each and every term to be observed or performed by Mortgagor
pursuant to the terms of any agreement or recorded instrument affected or
pertaining to the Mortgaged Property.
21. Defaults. The Debt shall become due at the option of
Mortgagee upon the occurrence of any one of the following events:
(a) if any portion of the Debt is not paid within twenty (20)
days after the same is due;
(b) if Mortgagor shall fail to pay within twenty (20) days of
notice and demand by Mortgagee, any
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instalment of any assessment against the Mortgaged Property for local
improvements heretofore or hereafter laid, which assessment is or may
become payable in annual or periodic instalments and is or may become a
lien on the Mortgaged Property, notwithstanding the fact that such
instalment may not be due and payable at the time of such notice and
demand;
(c) if any Federal tax lien is filed against Mortgagor and/or
the Mortgaged Property and the same is not discharged of record within
thirty (30) days;
(d) if without the consent of Mortgagee any part of the
Mortgaged Property or any interest therein is in any manner further
encumbered, sold, transferred or conveyed, or if any Improvement or the
Equipment (except for normal replacement of the Equipment) is removed,
demolished or materially altered, or if the Mortgaged Property is not
kept in good condition and repair;
(e) if the Policies are not kept in full force and effect, or
if the Policies are not assigned and delivered to Mortgagee upon
request;
(f) if without the consent of Mortgagee any Leases are made,
cancelled or modified or if any portion of the Rents is paid for a
period of more than one (1) month in advance or if any of the Rents are
further assigned;
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(g) if any representation or warranty of Mortgagor, or of any
person (hereinafter referred to as a Guarantor) guaranteeing payment of
the Debt or any portion thereof or performance by Mortgagor of any of
the terms of this Mortgage made herein or in any such guaranty, or in
any certificate, report, financial statement or other instrument
furnished in connection with the making of the Note, this Mortgage, or
any such guaranty, shall prove false or misleading in any material
respect;
(h) if Mortgagor or any Guarantor shall make an assignment for
the benefit of creditors;
(i) if a receiver, liquidator or trustee of Mortgagor or any
Guarantor shall be appointed or if Mortgagor or any Guarantor shall be
adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to the Federal Bankruptcy Act,
or any similar Federal or state statute, shall be filed by or against
Mortgagor or any Guarantor or if any proceeding for the dissolution or
liquidation of Mortgagor or any Guarantor shall be instituted and, if
such appointment, adjudication, petition or proceeding was involuntary
and not consented to by Mortgagor or such Guarantor upon the same not
being discharged, stayed or dismissed within sixty (60) days;
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(j) if Mortgagor shall be in default under the Note or under
any other mortgage, instrument or document evidencing, securing or
guaranteeing payment of the Debt, in whole or in part, or otherwise
executed and delivered in connection with the Note, this Mortgage or
the loan evidenced and secured thereby, or otherwise secured by the
Mortgaged Property;
(k) if Mortgagor shall continue to be in default under any of
the other terms, covenants or conditions of this Mortgage for five (5)
days after notice from Mortgagee, in the case of any default which can
be cured by the payment of a sum of money, or for ten (10) days after
notice from Mortgagee, in the case of any other default, provided that
if such default cannot reasonably be cured within such ten (10) day
period and Mortgagor shall have commenced to cure such default within
such ten (10) day period and thereafter diligently and expeditiously
proceeds to cure the same, such ten (10) day period shall be extended
for so long as it shall require Mortgagor in the exercise of due
diligence to cure such default;
(l) if Mortgagor shall be in default under any mortgage or
deed of trust covering any part of the Mortgaged Property which is
superior in lien to this Mortgage; or
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(m) if the Mortgaged Property shall become subject (i) to any
tax lien, other than a lien for local real estate taxes and assessments
not due and payable, or (ii) to any mechanic's, materialman's or other
lien and such lien shall remain undischarged or unbonded for thirty
(30) days.
22. Right to Cure Defaults. If default in the performance of
any of the covenants of Mortgagor herein occurs, Mortgagee may, at its
discretion, remedy the same and for such purpose shall have the right to enter
upon the Mortgaged Property or any portion thereof without thereby becoming
liable to Mortgagor or any person in possession thereof holding under Mortgagor.
If Mortgagee shall remedy such a default or appear in, defend, or bring any
action or proceeding to protect its interest in the Mortgaged Property or to
foreclose this Mortgage or collect the Debt, the costs and expenses thereof
(including reasonable attorneys' fees to the extent permitted by law), with
interest as provided in this paragraph, shall be paid by Mortgagor to Mortgagee
upon demand. All such costs and expenses incurred by Mortgagee in remedying such
default or in appearing in, defending, or bringing any such action or proceeding
shall be paid by Mortgagor to Mortgagee upon demand, with interest at 15% per
annum, or at the maximum interest rate which Mortgagor may by law pay, whichever
is lower, for the period after notice from Mortgagee that such costs or expenses
were
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incurred to the date of payment to Mortgagee. All such costs and expenses
incurred by Mortgagee pursuant to the terms of this Mortgage, with interest,
shall be secured by this Mortgage.
23. Late Payment Charge. If any portion of the Debt is not
paid within fifteen (15) days after the date on which it is due, Mortgagor shall
pay to Mortgagee upon demand an amount equal to 3% of such unpaid portion of the
Debt as a late payment charge, and such amount shall be secured by this
Mortgage.
24. Appointment of Receiver. Mortgagee, in any action to
foreclose this Mortgage or upon the actual or threatened waste to any part of
the Mortgaged Property or upon the occurrence of any default hereunder, shall be
at liberty, without notice, to apply for the appointment of a receiver of the
Rents, and shall be entitled to the appointment of such receiver as a matter of
right, without regard to the value of the Mortgaged Property as security for the
Debt, or the solvency or insolvency of any person then liable for the payment of
the Debt.
25. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term of this Mortgage shall not be deemed to be a waiver of
any term of this Mortgage. Mortgagor shall not be relieved of Mortgagor's
obligation to pay the Debt at the time and in the manner provided for its
payment in the Note and this Mortgage by
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reason of (i) failure of Mortgagee to comply with any request of Mortgagor to
take any action to foreclose this Mortgage or otherwise enforce any of the
provisions hereof or of the Note or any other mortgage, instrument or document
evidencing, securing or guaranteeing payment of the Debt or any portion thereof,
(ii) the release, regardless of consideration, of the whole or any part of the
Mortgaged Property or any other security for the Debt, or (iii) any agreement or
stipulation between Mortgagee and any subsequent owner or owners of the
Mortgaged Property or other person extending the time of payment or otherwise
modifying or supplementing the terms of the Note, this Mortgage or any other
mortgage, instrument or document evidencing, securing or guaranteeing payment of
the Debt or any portion thereof, without first having obtained the consent of
Mortgagor, and in the latter event, Mortgagor shall continue to be obligated to
pay the Debt at the time and in the manner provided in the Note and this
Mortgage, as so extended, modified and supplemented, unless expressly released
and discharged by Mortgagee. Regardless of consideration, and without the
necessity for any notice to or consent by the holder of any subordinate lien,
encumbrance, right, title or interest in or to the Mortgaged Property, Mortgagee
may release any person at any time liable for the payment of the Debt or any
portion thereof or any part of the security held for the Debt and may extend
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the time of payment or otherwise modify the terms of the Note and/or this
Mortgage, including, without limitation, a modification of the interest rate
payable on the principal balance of the Note, without in any manner impairing or
affecting this Mortgage or the lien thereof or the priority of this Mortgage, as
so extended and modified, as security for the Debt over any such subordinate
lien, encumbrance, right, title or interest. Mortgagee may resort for the
payment of the Debt to any other security held by Mortgagee in such order and
manner as Mortgagee, in its discretion, may elect. Mortgagee may take action to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Mortgagee thereafter to foreclose this
Mortgage. Mortgagee shall not be limited exclusively to the rights and remedies
herein stated but shall be entitled to every additional right and remedy now or
hereafter afforded by law. The rights of Mortgagee under this Mortgage shall be
separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Mortgagee shall be construed as an election
to proceed under any one provision herein to the exclusion of any other
provision.
26. Liability. If Mortgagor consists of more than one person,
the obligations and liabilities of each such person hereunder shall be joint and
several.
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27. Construction. The terms of this Mortgage shall be
construed in accordance with the laws of the State of New York.
28. Security Agreement. This Mortgage is both a Real Property
Mortgage and a Security Agreement. The Mortgage Property includes both real and
personal property and all other rights and interests, whether tangible or
intangible in nature, of Mortgagor in the Mortgaged Property.
29. Further Acts, etc. Mortgagor will, at the cost of
Mortgagor, and without expense to Mortgagee, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignments, transfers and assurances as Mortgagee
shall, from time to time, require, for the better assuring, conveying,
assigning, transferring and confirming unto Mortgagee the property and rights
hereby mortgaged or intended now or hereafter so to be, or which Mortgagor may
be or may hereafter become bound to convey or assign to Mortgagee, or for
carrying out the intention of facilitating the performance of the terms of this
Mortgage or for filing, registering or recording this Mortgage and, on demand,
will execute and deliver and hereby authorizes Mortgagee to execute in the name
of Mortgagor to the extent Mortgagee may lawfully do so, one or more financing
statements, chattel mortgages or comparable security instruments, to evidence
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more effectively the Lien hereof upon the Mortgaged Property.
30. Headings, etc. The headings and captions of various
paragraphs of this Mortgage are for convenience of reference only and are not to
be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
31. Filing of Mortgage, etc. Upon notice by the Mortgagee,
Mortgagor will cause forthwith, and thereafter from time to time, this Mortgage
and any security instrument evidencing the lien hereof or creating a lien upon
the Mortgaged Property, and each instrument of further assurance, to be filed,
registered or recorded in such manner and in such places as may be required by
any present or future law in order to publish notice of and fully to protect the
lien hereof upon, and the interest of Mortgagee in the Mortgaged Property.
Mortgagor will pay all filing, registration or recording fees, and all expenses
incident to the preparation, execution and acknowledgment of this Mortgage, any
mortgage supplemental hereto, any security instrument with respect to the
Mortgaged Property and any instrument of further assurance, and all Federal,
state, county and municipal taxes, duties, imposts, assessments and charges
arising out of or in connection with the execution and delivery of this
Mortgage, any mortgage supplemental hereto, any security instrument with respect
to the
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Mortgaged Property or any instrument of further assurance. Mortgagor shall hold
harmless and indemnify Mortgagee, its successors and assigns, against any
liability incurred by reason of the imposition of any tax on the making and
recording of this Mortgage.
32. Usury Laws. This Mortgage and the Note are subject to the
express condition that at no time shall Mortgagor be obligated or required to
pay interest on the principal balance due under the Note at a rate which could
subject the holder of the Note to either civil or criminal liability as a result
of being in excess of the maximum interest rate which Mortgagor is permitted by
law to contract or agree to pay. If by the terms of this Mortgage or the Note
Mortgagor is at any time required or obligated to pay interest on the principal
balance due under the Note at a rate in excess of such maximum rate, the rate of
interest under the Note shall be deemed to be immediately reduced to such
maximum rate and the interest payable shall be computed at such maximum rate and
all prior interest payments in excess of such maximum rate shall be applied and
shall be deemed to have been payments in reduction of the principal balance of
the Note.
33. Sole Discretion of Mortgagee. Wherever pursuant to this
Mortgage, Mortgagee exercises any right given to it to approve or disapprove, or
any arrangement or term is to be satisfactory to Mortgagee, the decision of
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Mortgagee to approve or disapprove or to decide that arrangements or terms are
satisfactory or not satisfactory shall be in the sole discretion of Mortgagee
and shall be final and conclusive.
34. Recovery of Sums Required To Be Paid. Mortgagee shall have
the right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Mortgagee thereafter to bring an action of foreclosure, or any other action,
for a default or defaults by Mortgagor existing at the time such earlier action
was commenced.
35. Marshalling. Mortgagor waives and releases any right to
have the Mortgaged Property marshalled.
36. Authority. Mortgagor (and the undersigned representative
of Mortgagor, if any) has full power, authority and legal right to execute this
Mortgage and to mortgage, give, grant, bargain, sell, alien, enfeoff, convey,
confirm and assign the Mortgaged Property pursuant to the terms hereof and to
keep and observe all of the terms of this Mortgage on Mortgagor's part to be
performed.
37. Actions and Proceedings. Mortgagee shall have the right to
appear in and defend any action or proceeding brought with respect to the
Mortgaged Property and to bring any action or proceeding, in the name and on
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behalf of Mortgagor, which Mortgagee, in its discretion, feels should be brought
to protect its interest in the Mortgaged Property.
38. Inapplicable Provisions. If any term, covenant or
condition of this Mortgage shall be held to be invalid, illegal or unenforceable
in any respect, this Mortgage shall be construed without such provision.
39. Duplicate Originals. This Mortgage may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to constitute but one and the same instrument.
40. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Mortgage shall be used interchangeably in singular or plural form and
the word "Mortgagor" shall mean "each Mortgagor and/or any subsequent owner or
owners of the Mortgaged Property or any part thereof or interest therein", the
word "Mortgagee" shall mean "Mortgagee or any subsequent holder of the Note",
the word "Note" shall mean "the Note or any other evidence of indebtedness
secured by this Mortgage", the word "person" shall include an individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, or other entity, the words "Mortgaged Property" shall
include any portion of the Mortgaged Property or interest therein, and the word
"Debt" shall mean all sums
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secured by this Mortgage. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns and pronouns shall include the plural and vice versa.
41. Waiver of Notice. Mortgagor shall not be entitled to any
notices of any nature whatsoever from Mortgagee except with respect to matters
for which this Mortgage specifically and expressly provides for the giving of
notice by Mortgagee to Mortgagor, and Mortgagor hereby expressly waives the
right to receive any notice from Mortgagee with respect to any matter for which
this Mortgage does not specifically and expressly provide for the giving of
notice by Mortgagee to Mortgagor.
42. No Oral Change. This Mortgage may not be modified,
amended, changed, discharged or terminated orally, but only by an agreement in
writing signed by the party against whom the enforcement of the modification,
amendment, change, discharge or termination is sought.
43. Trust Fund. Pursuant to Section 13 of the Lien Law of New
York, Mortgagor shall receive the advances secured hereby and shall hold the
right to receive such advances as a trust fund to be applied first for the
purpose of paying the cost of any improvement and shall apply such advances
first to the payment of the cost of any such
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improvement on the Mortgaged Property before using any part of the total of the
same for any other purpose.
44. Building Loan. To the extent of the future advances
provided for hereunder, this Mortgage shall constitute a building loan mortgage,
the proceeds of which are loaned for the purpose of financing the construction
of certain improvements on the Premises. The proceeds of the building loan
advances secured hereby are to be advanced by Mortgagee to Mortgagor from time
to time as requested by Mortgagor and as required for such construction.
45. Prepayment After Event of Default. If following the
occurrence of any default under this Mortgage remaining uncured beyond the
expiration of any applicable grace period and an exercise by Mortgagee of its
option to declare the Debt immediately due, Mortgagor shall tender payment of an
amount sufficient to satisfy the entire Debt at any time prior to a sale of the
Mortgaged Property, and if at the time of such tender prepayment of the
principal balance of the Note is prohibited, Mortgagor shall, in addition to the
entire Debt, also pay to Mortgagee any amount equal to the difference between
(a) interest which would have accrued on the principal balance of the Note at
the rate specified in the Note from the date of such exercise of Mortgagee's
option as aforesaid to the Maturity Date specified in the Note and (b) interest
which Beneficiary would receive if the principal balance of the
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Note would have been invested, on the date of such exercise, in United States
Treasury Securities having a maturity on (or as close as possible to) the
Maturity Date.
46. Corporate Property Investors. Corporate Property Investors
refers to the trustees under the Amended and Restated Declaration of Trust,
dated June 15, 1978, as amended, and filed in the office of the Secretary of the
Commonwealth of Massachusetts. The obligations of Mortgagee do not constitute
personal obligations of the trustees, officers, shareholders, employees or
agents. All persons dealing with Mortgagee shall look solely to the assets of
Mortgagee for satisfaction of any liability of Mortgagee in respect of this
Agreement, and will not seek recourse against such trustees, officers,
shareholders, employees or agents or any of them or any of their personal assets
for such satisfaction.
IN WITNESS WHEREOF, Mortgagor has duly executed this Mortgage
the day and year first above written.
305-313 EAST 47th STREET ASSOCIATES,
by CORPORATE REALTY CONSULTANTS, INC.,
as General Partner,
by /s/ Corporate Realty Consultants, Inc.
--------------------------------------
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STATE OF NEW YORK: )
) ss:
COUNTY OF NEW YORK )
On this 3rd day of August, 1998, before me personally came Michael L.
Johnson, to me known, who, being by me duly sworn, did depose and say that he
resides at 320 Central Park West, New York, New York; that he is a Vice
President of CORPORATE REALTY CONSULTANTS, INC., a corporation duly organized
under the laws of the State of Delaware, having its principal place of business
at 230 Park Avenue, New York, New York; that said corporation is a General
Partner of 305-313 East 47th Street Associates, a New York partnership, the firm
described in and which executed the foregoing instrument; that he knows the seal
of the said corporation; that the seal affixed to said instrument is such
corporate seal; that it was affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order, and he
acknowledged to me that the said instrument was executed by said corporation for
and in behalf of said partnership.
---------------------------------
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EXHIBIT A
The Ground Lease referred to in Subparagraph (a) in the
description of the "Mortgaged Property" is that certain lease agreement, dated
June 22, 1982 between Corporate Property Investors, a Massachusetts business
trust, as lessor, and 305-313 East 47th Street Associates, a New York
partnership consisting of Corporate Realty Consultants, Inc., a Delaware
corporation, and CRC Advisory Corp., a Delaware corporation, as lessee. The
leasehold created thereby affects the property described in Exhibit A-1 attached
hereto.
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EXHIBIT A-1
ALL of that certain lot, piece or parcel of land, situate,
lying and being in the City, County and State of New York and bounded and
described as follows:
BEGINNING at a point in the northerly side of Forty-Seventh Street, distant one
hundred feet easterly from the intersection of the northerly side of
Forty-Seventh Street and the easterly side of Second Avenue; running thence
northerly parallel with Second Avenue, one hundred feet five inches to the
center line of the block; thence easterly along said line one hundred and
twenty-five feet; thence southerly parallel with Second Avenue, one hundred feet
five inches to the northerly side of Forty-Seventh Street; and thence westerly
along the northerly side of Forty-Seventh Street, one hundred and twenty-five
feet to the point of BEGINNING.
Said premises being known as 305-313 East 47th Street.
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LEASE AGREEMENT
This Lease Agreement, made and entered into this 22 day of
June, 1982, by and between CORPORATE PROPERTY INVESTORS, a Massachusetts
business trust (hereinafter referred to as "Lessor"), and 305-313 EAST 47TH
STREET ASSOCIATES, a New York Partner ship, consisting of Corporate Realty
Consultants, Inc., a Delaware corporation ("CRC") and CRC Advisory Corp., a
Delaware corporation (hereinafter referred to as "Lessee").
W I T N E S S E T H :
Lessor is the owner of the land known as 305-313 East 47th
Street, New York, New York as described on Exhibit A attached hereto (the
"Land"). Lessee has simultaneously with the execution of this Lease purchased
the buildings and improvements located on the Land (hereinafter collectively
referred to as the "Improvements" and individually as an "Improvement"). Lessor
desires to lease the Land to Lessee and Lessee desires to lease the Land from
Lessor on the terms and conditions hereinafter set forth.
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NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties hereby agree as follows:
ARTICLE ONE
TERM AND USE
Section 1.1. The term of this Lease shall begin on June 22,
1982, and shall continue for ninety-nine (99) years, ending May 31, 2081. The
Land may be used, occupied and enjoyed by the Lessee for any and all lawful
purposes, subject to earlier termination as hereinafter provided.
ARTICLE TWO
RENTAL
Section 2.1. Lessee hereby covenants and agrees to pay to
Lessor at the address set forth in Section 11.1, annual rent for the Land,
effective as of January 1 of each calendar year, equal to the sum of (i)
$780,000 and (ii) 10% of any increase in the fair market value of the
Improvements located on the Land in excess of $15,000,000. The rent shall be
paid in equal monthly installments in advance on the first day of each month;
provided, however, in the event that the annual rent for the new calendar year
is not yet known due to the fact that the fair market value of the Improvements
has not yet been determined for such year, then, in such event, Lessee shall
continue to pay to Lessor the previous year's rent in monthly installments until
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notified by Lessor of the rent for the new calendar year. After notice by Lessor
to Lessee of the new fair market value of the Improvements and of a change in
the annual rent, Lessee shall pay, at such time as the next monthly installment
of rent shall be due, the sum of the new monthly rent and the total amount of
any increase in monthly rent that had accrued. In the event of any decrease in
the annual rent as a result of a decrease in the fair market value of the
Improvements, the total amount of such decrease that had accrued shall be
credited against the monthly rent that shall next fall due; provided that in no
event shall the annual rent be less than $780,000.
Section 2.2. The fair market value of the Improvements shall
be calculated as of December 31 of each year by capitalizing the cash flow of
the Improvements after operating expenses, but prior to the payment by the
Lessee of (i) any rent payable hereunder or (ii) debt service on any mortgage
encumbering the Improvements or Lessee's interest in the Land, at the rate of
12.5% per annum.
ARTICLE THREE
TAXES
Section 3.1. As additional rent, Lessee further covenants and
agrees to bear, pay and discharge all taxes, governmental charges, assessments
and all levies, general and special, ordinary and extraordinary, of any name,
nature
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and kind whatsoever, which may be fixed, charged, levied, assessed or
otherwise imposed upon the Land, except any income, capital gains, franchise tax
and any tax imposed on the rentals and revenues received by Lessor hereunder
that may be payable by Lessor under any existing or future tax law of the United
States or any other country or the State or City of New York, or any other
state, or any subdivision thereof. Lessee shall pay such taxes, charges,
assessments and levies to the public officers charged with the collection
thereof before the same shall become delinquent; provided, however, that Lessee
shall have the right in good faith, at its sole cost and expense (in its own
name or in the name of Lessor) to contest any such taxes, charges, assessments
and levies in accordance with, and subject to the provisions of Section 5.1
hereof.
Lessee at its expense shall upon demand by Lessor secure a
surety bond satisfactory in form to Lessor to secure payment of any contested
item or items, in an amount not less than the entire contested amount, including
any interest or penalties relating thereto.
Section 3.2. Lessee shall at all times save Lessor and the
Land and Improvements harmless from all such taxes, assessments and charges, and
from all liens, penalties and interest in connection therewith, and from all
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public requirements as to reconstruction or repair of streets, curbs or
sidewalks.
ARTICLE FOUR
CONSTRUCTION
TRANSFER UPON TERMINATION OF LEASE
Section 4.1. All construction work in or about the Land shall
at all times be done in conformance with and in observance of all valid and
applicable laws, ordinances, rules and regulations concerning such construction;
provided, however, that Lessee shall have the right in good faith to contest any
such law, ordinance, rule or regulation.
Section 4.2. Lessee covenants and agrees that any alteration,
renovation or reconstruction of the Improvements shall be at Lessee's sole cost
and expense and at no cost or expense to Lessor.
Section 4.3. The Improvements and all machinery, equipment or
fixtures that may be attached to or used in connection with the operation,
maintenance and protection of the Improvements as such, or the plumbing,
heating, cooling, ventilation or air-conditioning thereof, including, without
limiting the generality of the foregoing, all elevators, escalators, dynamos and
engines, refrigerating, ventilating, air-conditioning, sanitary and plumbing
fixtures, machinery and equipment, and fire prevention and extinguishing
apparatus, but expressly excluding trade fixtures of Lessee, fur-
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nishings, floor covering and lighting equipment that may be removed without
damage to the realty, shall remain upon and be surrendered with the Land as a
part thereof at the termination of this Lease and Lessee agrees to execute and
deliver a deed conveying title to the Improvements to Lessor at such time;
provided, however, that nothing herein shall prevent or preclude Lessee from
demolishing any Improvement located on the Land subject to the provisions of
Section 4.4 or making alterations, renovations, replacements or changes in the
interior or exterior of any Improvement and the machinery, equipment and
fixtures therein, or removing same.
Section 4.4. Lessee shall have the right to alter, add to,
demolish or reconstruct any Improvement as often and whenever it deems proper in
its sole discretion, all of which shall be performed in accordance with
applicable laws, ordinances and other governmental regulations; provided that in
the event of any demolition, reconstruction or alteration the rent payable by
Lessee to Lessor for the remainder of the term of this lease shall not be less
than the rent payable by Lessee immediately prior to such demolition,
reconstruction or alteration.
ARTICLE FIVE
LIENS
Section 5.1. Except such mortgage lien or liens as are
expressly permitted under the terms of this Article
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7
Five, Lessee shall not permit any involuntary lien or other encumbrance to be
placed against Lessee's leasehold interest, and if any such involuntary lien or
encumbrance shall be attempted to be affixed against Lessee's leasehold
interest, Lessee shall pay and discharge any indebtedness to which such lien or
other encumbrance relates; provided, however, Lessee shall have the right in its
discretion in good faith in accordance with Section 3.1 hereof to contest any
and all such liens and encumbrances, and Lessee shall not be obligated to pay
the contested item or items unless and until it has been finally determined to
be valid and enforceable against Lessee or Lessee's interest in the Land.
Section 5.2. Upon obtaining the consent of Lessor, which
consent Lessor agrees shall not be unreasonably withheld or delayed, Lessee
shall at all times have the right to encumber by mortgage or other proper
instrument in the nature thereof as security for any actual bona fide debt its
leasehold estate hereby created or any portion thereof; provided, that any and
all such encumbrances shall at all times be inferior and subject to the prior
right, title and interest of Lessor under this Lease. Nothing in this Lease
shall be deemed or construed in any way as constituting the consent or request
of Lessor, express or implied by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the
50
8
performance of any labor or the furnishing of any materials for any improvement,
alteration to or repair of the Land or the Improvements or any part thereof or
any building or improvement at any time situated thereon, nor as giving Lessee
any right, power or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to the filing
of any lien against the interest of the Lessor in the Land or any part thereof.
Section 5.3. If at any time after the execution and recording
in the City Register for the County of New York, of any such mortgage, the
mortgagee therein shall notify Lessor in writing that such mortgage has been
executed and delivered by Lessee and at the same time furnish Lessor with the
address to which said mortgagee desires copies of notices to be mailed, Lessor
hereby agrees that it will thereafter mail to such mortgagee at the address so
given a duplicate copy of any and all notices in writing which Lessor may from
time to time give or serve upon Lessee under and pursuant to the terms and
provisions of this Lease.
Section 5.4. Such mortgagee may, at its option, at any time
before the rights of Lessee shall have been terminated as provided in Article
Thirteen pay any of the rental due hereunder, or do any other act or thing
required
51
9
of or permitted to Lessee by the terms of this Lease, and all payments
so made and all things so done and performed by or for any such mortgagee shall
be as effective to prevent a forfeiture of the rights of Lessee hereunder as
though the same had been done and performed by Lessee. Any such mortgage so
given by Lessee may, if Lessee desires, be so conditioned as to provide that as
between such mortgagee and Lessee, said mortgagee, on making good and performing
any such default or defaults on the part of Lessee, shall be thereby subrogated
to or be in the position of an assignee of any and all of the rights of Lessee
under the terms and provisions of this Lease. Lessor shall be furnished with
either a duplicate original or a certified copy of any such mortgage which
provides that any such mortgagee on making good and performing any such default
or defaults on the part of Lessee shall be thereby subrogated to or be in the
position of an assignee of any and all of said rights of Lessee.
Section 5.5. No such mortgagee of the rights and interests of
Lessee hereunder shall be or become liable to Lessor as an assignee of this
Lease, or otherwise, unless it expressly assumes the liability, and no
assumption shall be inferred from or shall be the result of foreclosure or other
appropriate proceedings in the nature thereof or shall be the result of any
other action or remedy provided for by
52
10
such mortgage or by proper conveyance from Lessee pursuant to which the
purchaser at foreclosure or grantee shall acquire the rights and interest of
Lessee under the terms of this Lease. The rights of any such mortgagee,
purchaser or grantee shall be subject to the unperformed obligations of Lessee,
and in the event of a subsequent default in the performance of one or more of
said obligations as hereinafter provided, Lessor may enforce the performance of
this Lease as hereinafter provided.
ARTICLE SIX
MAINTENANCE AND REPAIR OF PREMISES
COMPLIANCE WITH LAWS
OPERATION
Section 6.1. Lessee agrees during the term of this Lease to
take good care of the Land. Lessee further agrees that, at the end or other
expiration of the term of this Lease, it will deliver up the Land and the
Improvements then existing thereon in good order and condition, reasonable wear
and tear excepted. All expenses arising out of Lessee's operation or use of the
Land or the Improvements shall be borne by Lessee.
Section 6.2. Lessee shall at its expense promptly execute and
fulfill all ordinances of the City of New York, or other governmental agency
applicable to the Land, and all orders and requirements imposed by the Board of
Health, Sanitation, Fire and Police Departments, or other govern-
53
11
mental authority, for the correction, prevention and abatement of nuisances in
or upon or connected with the Land because of Lessee's use thereof during the
term of this Lease.
Section 6.3. If Lessee shall fail to pay before same become
delinquent any tax, assessment or charge which it is required to pay by Article
Three, or any bill for materials or labor furnished or performed in connection
with the repair or maintenance of the Land as required hereunder, or shall fail
to perform any obligation of Lessee required in other Sections of this Lease,
Lessor after thirty (30) days' written notice to Lessee (Lessor having the right
to reduce the time of such notice in order to permit it to make any payment or
perform any obligation of Lessee prior to delinquency or default) shall have the
right, but not the obligation, in addition to all other rights and remedies to
make any or all of such payments and perform any or all of such obligations of
Lessee, and if it does so Lessor shall be subrogated to the rights, titles and
interests of all persons whose claims it has paid, and Lessee agrees forth with
to repay to Lessor, all sums thus paid by Lessor in order to perform Lessee's
obligations, together with inter est at the rate of 2% above the prime rate
charged by Citibank N.A., from the date of each such payment; provided, however,
that nothing contained in this Section shall impair
54
12
or affect Lessee's right to dispute or contest the validity or amount of any
claim as hereinafter set forth; and provided further, that the performance by
Lessor of an obligation of Lessee as herein permitted shall not impair or affect
the right of Lessor to terminate this Lease in the event of an act of default by
Lessee as hereinafter set forth.
ARTICLE SEVEN
ASSIGNMENT
INDEMNITY
Section 7.1. Lessee may not sublease the Land in whole or in
part without the consent of Lessor. Lessee may also not assign this Lease
without the consent of Lessor, which consent shall not be unreasonably withheld
or delayed. It shall be deemed reasonable for Lessor to withhold its consent to
any proposed assignee, if any such assignee does not (i) have a recognized
reputation and capability for the management of first class office buildings in
the Borough of Manhattan and (ii) have a net worth substantially comparable to
Lessee under generally accepted accounting practices as certified by a certified
public accountant. In addition, any assignee of this Lease shall expressly
assume all of the terms and conditions hereof. If at any time after the
execution and delivery of an instrument whereby this Lease is assigned, or the
Land or any part thereof is sublet, if the assignee or sublessee therein shall
notify Lessor in
55
13
writing that such an instrument of assignment or subletting has been executed
and delivered by Lessee and at the same time furnish Lessor with the address to
which said assignee or sublessee desires copies of notices to be mailed or
designate some person or corporation in the City of New York, as the agent and
representative of the assignee or sublessee for the purpose of receiving copies
of notices, Lessor hereby agrees that it will thereafter mail either to such
assignee or sublessee at the address so given a copy of any and all notices in
writing which Lessor may from time to time give or serve upon Lessee under and
pursuant to the terms of this Lease; provided, however, that in no event shall
Lessor be required to give such notice to more than three addressees who may be
assignees or sublessees. If notices to more than three addresses would otherwise
be required under this provision, such addressees shall be required to designate
an agent or agents, but not more than three, for the purposes of such notice.
Each such assignee or sublessee, immediate or remote, unless restrained by the
muniments of title under which he holds, shall have like power of assignment and
subletting on the same conditions and subject to the same restrictions as those
imposed herein on Lessee.
Section 7.2. All property of every kind which may be placed
upon the Land during the lease term shall be at
56
14
the sole risk of Lessee or those claiming under it and Lessor shall not be
liable to Lessee, or to any other person whatsoever, for any injury, loss or
damage to any person or property upon the Land, or upon the sidewalks contiguous
thereto. Lessee hereby covenants and agrees to assume all liability for or on
account of any injury, loss or damage above described, and to save Lessor
harmless therefrom. Lessor shall not be liable for injury or damage which may be
sustained by person or property by Lessee or any other person caused (i) by the
street or subsurface, (ii) by interference with light or other incorporeal
hereditaments, (iii) by operations by or for governmental agencies in the
construction of any public or quasi-public work, or (iv) from any other source
or by any cause whatsoever.
Section 7.3. Lessee shall at its own expense provide and keep
in force for the protection of Lessor and Lessee, comprehensive general
liability insurance in which Lessor shall be named as an additional assured in
such limits of liability in respect of bodily injury for each person and for
each occurrence and in respect of property damage for each occurrence in such
amounts as shall reason ably protect both Lessor and Lessee against the risks
described in Section 7.2, but not less than $2,000,000 coverage for bodily
injury to each person and not less than $10,000,000 coverage for bodily injury
for each occurrence.
57
15
Such policy or policies shall cover the Land and any side walks, streets and
ways adjoining the Land or any of the situations named in Section 7.2, and shall
be issued by a reputable insurance company or companies reasonably accept able
to Lessor, and copies of such policies or certificates shall be delivered to
Lessor.
ARTICLE EIGHT
CONDEMNATION AND EMINENT DOMAIN
Section 8.1. If during the term of this Lease the Land shall
be taken by any public authority for any public use or by condemnation or
eminent domain proceedings, and such taking relates to the entire fee simple
estate in the Land as well as the right, title and interest of Lessee, then this
Lease shall terminate as of the date of such taking, and all rights, titles,
interests, covenants, agreements and obligations of the parties hereto
thereafter accruing shall cease and terminate except as hereinafter set forth.
In the event of such taking the entire compensation and damages (if not
apportioned by the condemnation decree) shall be fairly and equitably
apportioned between Lessor and Lessee in accordance with the respective damage
and loss sustained by the fee simple estate (subject to the leasehold estate)
and the leasehold estate granted hereunder.
Section 8.2. If during the term of this Lease a material part
of the Land shall be taken and the remaining
58
16
portion of the Land cannot reasonably be used or utilized for the purposes for
which the Land were being used at the time of the taking, Lessee shall have the
right and option upon thirty (30) days' written notice to Lessor to terminate
this Lease, in which event the provisions of Section 8.1 shall be applicable as
of the date of such termination.
Section 8.3. If during the term of this Lease a portion of the
Land shall be temporarily taken, and this Lease is not terminated pursuant to
Section 8.2, or if any condemnation for a temporary period ending before the
expiration of the term of this Lease shall be made, it is agreed that in such
event the rights, duties and obligations of the parties under the terms of this
Lease shall then be modified fairly and equitably with such abatement of rent
and other payments and obligations as shall fairly and equitably adjust the
rights, duties and obligations of the parties hereto under the changed
circumstances. Any compensation and damages that may be awarded as the result of
any such taking shall be fairly and equitably apportioned between Lessor and
Lessee in accordance with the respective damage and loss sustained by the fee
simple estate (subject to the leasehold estate) and the leasehold estate granted
hereunder. In the event that a permanent taking of a portion of the Land occurs,
the rent thereafter payable shall be reduced in the same proportion as the area
of the
59
17
portion taken shall bear to the total area of the Land immediately prior to the
taking, said rent reduction to be based on the then effective rental rate,
subject to adjustment in accordance with the terms of this Lease.
ARTICLE NINE
NOTICES
Section 9.1. All notices, demands, consents, approvals or
other communications hereunder shall be in writing and shall be deemed to have
been given (i) 72 hours after the same are sent by certified or registered mail,
postage prepaid, or (ii) when delivered, in each case, to the parties at the
following addresses:
Lessor: CORPORATE PROPERTY INVESTORS
230 Park Avenue
New York, New York 10169
Lessee: 305-313 EAST 47TH STREET ASSOCIATES
c/o Corporate Realty Consultants, Inc.
230 Park Avenue
New York, New York 10169
or at such other addresses as each party may designate by
notice to the other party.
Section 9.2. The word "Lessor" as used in this Lease shall
extend to and include all other persons, whether natural or artificial, who at
any time or from time to time during the term of this Lease shall succeed to the
interest and estate of Lessor in the Land, and all of the covenants, agreements,
conditions and stipulations herein contained
60
18
shall inure to the benefit of and shall be jointly and severally binding upon
Lessor and its successors, assigns, grantees, heirs, executors and
administrators, and of any and all persons who at any time or from time to time
during the term of this Lease shall succeed to the interest and estate of Lessor
in the Land. "Lessee" as used in this instrument shall extend to and include the
party executing this instrument as Lessee, as well as all other persons, whether
natural or artificial, who at any time or from time to time during the term of
this Lease shall succeed to the interest and estate of Lessee in the Land, and
all of the covenants, agreements, conditions, and stipulations herein contained
shall inure to the benefit of and shall be binding upon the party executing this
instrument as Lessee (subject to the limitation as provided in Article Twelve)
and its successors, assigns, grantees, heirs, executors and administrators, and
of any and all persons who shall, at any time or from time to time during the
term of this Lease succeed to the interest and estate of Lessee hereby created
in the Land.
ARTICLE TEN
EXISTING AGREEMENTS
RIGHTS AND LEASES
QUIET ENJOYMENT
Section 10.1. Lessor represents and warrants that it owns good
and indefeasible fee simple title to the Land
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19
and Lessor further warrants that Lessee shall have a good and indefeasible
leasehold estate in and to the Land subject to any easements or restrictions of
record, and covenants that Lessee, on paying the rent and performing his
agreements and obligations as aforesaid, shall and may at all times peaceably
and quietly have, hold and enjoy the Land during the term of this Lease.
Section 10.2. Lessor warrants that there are no existing deed
restrictions or encroachments. Lessor further warrants to Lessee that there are
no persons or tenants in possession of the Land under leases or otherwise other
than those set forth on Exhibit B attached hereto.
ARTICLE ELEVEN
WAIVERS
Section 11.1. Any and all waivers by Lessor or Lessee shall be
in writing. No waiver by Lessor or Lessee of any default or breach by the other
of any covenant, condition, agreement, provision or stipulation herein con-
tained shall be deemed as a waiver of any other or subsequent default or breach
of the same or any other covenant, condition, agreement, provision or
stipulation hereof.
ARTICLE TWELVE
LIMITATION OF LIABILITY OF LESSEE
Section 12.1. In the event of assignment of this Lease to an
assignee in accordance with the terms and
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20
conditions of Section 7.1 and an assumption by such assignee of the obligations
of the Lessee hereunder, the assignor shall be released from liability, provided
that Lessee shall have given to Lessor an assignment instrument, or true copy
thereof, evidencing the assignment of this Lease and the agreement of the
assignee to accept the assignment unconditionally and to be bound by all the
terms, conditions and covenants of Lessee hereunder.
ARTICLE THIRTEEN
DEFAULT
REMEDIES
Section 13.1 In the event of a default on the part of Lessee
in the payment of rent, or ad valorem taxes, governmental charges, assessments
or levies, or default on the part of Lessee (i) pursuant to the terms of any
mortgage or note between Lessor and Lessee or (ii) in the satisfaction of any
other lien created or suffered to be created by Lessee (other than the lien
permitted by Section 5.2 hereof), if Lessor shall execute and deliver to Lessee
and each mortgagee in accordance with the provisions of Section 5.3 of this
Lease a written notice specifying such default, and if the default thus
specified by such notice shall continue for a period of sixty (60) days from and
after the date of such notice, then in such event Lessor shall have the full
right at its election to forfeit this Lease or pursue any other legal remedy;
provided, however,
63
21
that if Lessee shall have executed and delivered, in accordance with the
provisions of Section 5.2 of this Lease, a mortgage, or other proper security
instrument, and the mortgagee therein shall have notified Lessor of such fact
and furnished Lessor with the address to which copies of notices shall be sent
in accordance with the provisions of Section 5.3 of this Lease, then insofar,
and only insofar, as the rights of any such mortgagee or trustee authorized
under the provisions of Section 5.2 of this Lease are concerned, Lessor shall
have the right to declare this Lease forfeited only if the default specified by
said notice shall continue for an additional period (in addition to the original
sixty (60) day period) of thirty (30) days after the date of said original
notice.
Section 13.2. In the event of any breach of any covenant of
this Lease by Lessee other than those mentioned in Section 13.1 above, then
Lessor shall have the right to execute and deliver to Lessee and to each
mortgagee in accordance with the provisions of Section 5.3 of this Lease a
written notice specifying such default, and unless within ninety (90) days from
and after the date of said notice Lessee or any mortgagee shall have commenced
to remove or to cure such default and shall thereafter proceed with reasonable
diligence to completely remove or cure such default, then in such event Lessor
shall have the full right
64
22
at its election to forfeit this Lease or pursue any other legal remedy;
provided, however, that if any mortgagee of Lessee's interest under a mortgage
or other encumbrance created under Section 5.2 of this Lease is not in actual
possession of the Land at the time of such default, then the time within which
such mortgagee may commence to cure such default shall be extended until such
mortgagee can obtain actual possession; provided that during such interim the
mortgagee under a mortgage of the leasehold estate authorized by Section 5.2
shall pay or cause to be paid all rents, taxes, governmental charges,
assessments and levies and all liens created or suffered to be created by Lessee
(other than the lien held by it) and provided for hereunder as and when same
shall become due under the terms of this Lease.
Section 13.3. In the event it shall become necessary for
Lessor to employ an attorney to collect any rent due under this Lease or to
enforce any of the other covenants of the Lessee, Lessee shall be liable and
responsible for the payment of reasonable attorneys' fees to Lessor's attorneys.
ARTICLE FOURTEEN
MISCELLANEOUS
Section 14.1. Each party hereto agrees that upon the request
of the other it will forthwith execute and deliver for recording in the City
Register for the County of
65
23
New York, a short form lease agreement designating the parties, describing the
Land and setting out the term of this Lease, and incorporating all the terms
hereof by reference hereto.
Section 14.2. All titles or captions of Articles herein are
used for convenience only, and shall not control or affect the meaning or
construction to be placed on the language contained in the various Articles of
this Lease.
Section 14.3. It is understood and agreed that Lessor
expressly reserves the right to mortgage Lessor's interest in the Land.
Section 14.4. Rent on Net Return Basis. It is intended that
the rent provided for in this Lease shall be an absolutely net return to Lessor
for the term of this Lease, free of any loss, expenses, charges, or other
deduction with respect to the Land, including without limitation maintenance,
repairs, insurance, taxes and assessments imposed upon or related to the Land,
except as otherwise expressly provided herein.
Except as otherwise expressly provided herein, no abatement,
diminution or reduction of the annual rent or of other charges required to be
paid by Lessee pursuant to the terms of this Lease shall be claimed by, or
allowed to, Lessee for any inconvenience, interruption, cessation or loss of
business or otherwise, caused, directly or indi-
66
24
rectly, by any present or future laws, rules, requirements, orders, directions,
ordinances or regulations of the United States of America, or of the state,
county or city governments, or of any other municipal, governmental or lawful
authority whatsoever, or by priorities, rationing or curtailment of labor or
materials, or by war, civil commotion, strikes or riots, or any matter or thing
resulting therefrom, or by any other cause or causes beyond the control of
Lessor, nor shall this Lease be affected by any such causes.
Section 14.5. Corporate Property Investors. Corporate Property
Investors refers to the trustees under the Amended and Restated Declaration of
Trust, dated June 15, 1978, as amended, and filed in the office of the Secretary
of the Commonwealth of Massachusetts. The obligations of Lessor do not
constitute personal obligations of the trustees, officers, shareholders,
employees or agents. All persons dealing with Lessor shall look solely to the
assets of Lessor for satisfaction of any liability of Lessor in respect of this
Agreement, and will not seek recourse against such trustees, officers,
shareholders, employees or agents or any of them or any of their personal assets
for such satisfaction.
IN WITNESS WHEREOF, this Lease is executed as of the date set
forth above.
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25
LESSOR:
CORPORATE PROPERTY INVESTORS,
by /s/ Peter Bepler
------------------------------
Vice President
LESSEE:
305-313 EAST 47TH STREET ASSOCIATES,
CORPORATE REALTY CONSULTANTS, INC.,
General Partner
by /s/ Peter Bepler
------------------------------
Vice President
CRC ADVISORY CORP.,
General Partner
by /s/ Peter Bepler
------------------------------
Vice President
68
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this 22nd day of June, 1982, before me personally came
Peter T. Bepler, II, to me known, and who, being duly sworn, did depose and say:
That he resides at 142 East 71st Street, New York, New York; that he is the Vice
President of CORPORATE REALTY CONSULTANTS, INC., a corporation duly organized
under the laws of the State of Delaware, having its principal place of business
at 230 Park Avenue, New York, New York; that said corporation is a General
Partner of 305-313 East 47th Street Associates, a New York partnership, the firm
described in and which executed the foregoing instrument; that he knows the seal
of the said corporation; that the seal affixed to said instrument is such a
corporate seal; that it was affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order, and he
acknowledged to me that the said instrument was executed by said corporation for
and in behalf of said partnership.
/s/ Murray Cohen
---------------------------
69
EXHIBIT B
305-313 East 47th Street
SCHEDULE OF TENANTS
Building/Floor Tenancy Status Square Footage
-------------- -------------- --------------
305 East 47th Street
--------------------
Basement Vacant 7,500
Ground Floor Dixie Color Corp. 6,750
2nd Floor Vacant 6,750
3rd Floor Loewy machinery 2,400
Atelier Ettinger 1,980
Vacant 2,370
4th Floor Vacant 6,750
5th Floor Vacant 6,750
6th Floor Loewy Machinery 6,750
7th Floor Atelier Ettinger 6,500
8th Floor Arkay Packaging 2,200
Warren Associates 3,900
9th Floor J.L. Gordon Architects 5,800
10th Floor Zuberry Associates 5,400
11th Floor Vacant 5,100
12th Floor A&D Color Lab 1,735
Harper & George 3,265
311-313 East 47th Street
------------------------
Basement Warren Associates 2,000
Ground Floor Lee Rothberg Productions 5,000
2nd Floor Barry Blueprint 5,000
3rd Floor P. Podemski 5,000
4th Floor Vacant 5,000
70
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this 22nd day of June, 1982, before me personally came
Peter T. Bepler, II, to me known, and who, being duly sworn, did depose and say:
That he resides at 142 East 71st Street, New York, New York; that he is the Vice
President of CRC ADVISORY CORP., a corporation duly organized under the laws of
the State of Delaware, having its principal place of business at 230 Park
Avenue, New York, New York; that said corporation is a General Partner of
305-313 East 47th Street Associates, a New York partnership, the firm described
in and which executed the foregoing instrument; that he knows the seal of the
said corporation; that the seal affixed to said instrument is such a corporate
seal; that it was affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order, and he
acknowledged to me that the said instrument was executed by said corporation for
and in behalf of said partnership.
/s/ Murray Cohen
--------------------------
71
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this 22nd day of June, 1982, before me personally came
Peter T. Bepler, II, to me known, who, being by me duly sworn, did depose and
say that he resides at 142 East 71st Street, New York, New York; that he is the
Vice President of CORPORATE PROPERTY INVESTORS, a Massachusetts business trust
described in and which executed the foregoing instrument; that he knows the seal
of said trust; that the seal affixed to said instrument is such trust seal; that
it was so affixed by order of the board of trustees of said trust, and that he
signed his name thereto by like order.
/s/ Murray Cohen
--------------------------
72
EXHIBIT A
ALL of that certain lot, piece or parcel of land,
situate, lying and being in the City, County and State of New York and
bounded and described as follows:
BEGINNING at a point in the northerly side of Forty-Seventh Street,
distant one hundred feet easterly from the intersection or the
northerly side of Forty-Seventh Street and the easterly side of Second
Avenue; running thence northerly parallel with Second Avenue, one
hundred feet five inches to the center line of the block; thence
easterly along said line one hundred and twenty-five feet; thence
southerly parallel with Second Avenue, one hundred feet five inches to
the northerly side of Forty-Seventh Street; and thence westerly along
the northerly side of Forty-Seventh Street, one hundred and twenty-five
feet to the Point of BEGINNING.
Said premises being known as 305-313 East 47th Street.