STANDARD FORM OF OFFICE LEASE The Real Estate Board of New York, Inc.
EXHIBIT
10.1
STANDARD
FORM OF OFFICE LEASE
The Real
Estate Board of New York, Inc.
Agreement of
Lease, made as of this 15th day
of December 2009, between NEWMARK COMPANY REAL ESTATE, INC., AS AGENT FOR: 38TH
AND 8TH LLC, NEW. 520 GSH LLC, NEW 520 TRIPLE CROWN LLC AND NEW 520 EIGHTH LLC,
having offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, party of the first
part, hereinafter referred to as Owner, EMERGING VISION USA, INC. and party of
the second part, hereinafter referred to as TENANT,
Witnesseth:
Owner hereby leases to Tenant and Tenant hereby hires from Owner the Part
23rd
floor as indicated on the floor plan attached hereto in the building known as
000 Xxxxxx Xxxxxx in the Borough of Manhattan, City of New York, for the term of
ten (10) years, four (4) months (or until such term shall sooner cease and
expire as hereinafter provided) to commence upon the possession Date (as defined
under Article 64) and terminating ten (10) years, four (4) months from the last
day of the month in which the Possession Date occurs at a Fixed Annual Rent as
stated in Article 65 hereof. Fixed Annual Rent as stated hereunder is an
aggregate inclusive of the 2.5% fixed percentage annual escalation in rent and
is exclusive of electric charges and other items of Additional Rent. which
Tenant agrees to pay in lawful money of me United States, which shall be legal
tender in payment of all debts and dues, public and private, at the time of
payment, in equal monthly installments in advance on the first day of each month
during said term at the office of Owner or such other place as Owner may
designate, without any setoff or deduction whatsoever, except that Tenant shall
pay the first monthly installment(s) on the execution hereof (unless this lease
be a renewal).
The
parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
|
Rent:
|
1. Tenant shall pay the
rent as above and as hereinafter
provided.
|
|
Occupancy:
|
2. Tenant shall use and
occupy the demised premises for general, executive and for no other
purpose.
|
|
|
Tenant
|
|
Alterations:
|
3. Tenant shall make no
changes in or to the demised premises of any nature without Owner's prior
written consent.1
Subject to the prior written consent of Owner, and to me provisions of
this article, Tenant, at Tenant's expense, may make alterations,
installations, additions or improvements which are non-structural and
which do not affect utility services or plumbing and electrical lines, in
or to the interior of the demised premises, by using contractors or
mechanics first approved in each instance by Owner.2
Tenant shall, before making any alterations, additions, installations or
improvements, at its expense, obtain all permits, approval and
certificates required by any governmental or quasi-governmental bodies and
(upon completion) certificates of final approval thereof, and shall
deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry, and will cause Tenant's
contractors and sub-contractors to carry, such worker's compensation,
commercial general liability, personal and property damage insurance as
Owner may require. If any mechanic's lien is filed against the demised
premises, or the building of which the same forms a part, for work claimed
to have been done for, or materials furnished to. Tenant, whether or not
done pursuant to this article, the same shall be discharged by Tenant
within thirty days thereafter, at Tenant's expense, by payment or filing a
bond as permitted by law All fixtures and all paneling, partitions,
railings and like installations, installed in the demised premises at any
time, either by Tenant or by Owner on Tenant's behalf shall, upon
installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises as the termination of this lease,
elects to relinquish Owner's right thereto and to have them removed by
Tenant, in which event the same shall be removed to the demised premises
by Tenant prior to the expiration of the lease, at Tenant's expense.
Nothing in this article shall be construed to give Owner title to, or to
prevent Tenant's removal of, trade fixtures, moveable office furniture and
equipment, but upon removal of, same from the demised premises Or upon
removal, of other installations as may be required by Owner, Tenant shall
immediately, and at its expense, repair and restore the demised premises
to the condition existing prior to any such installations, and repair any
damage to the demised premises or the building due to such removal. All
property permitted or required to be removed by Tenant at the end of the
term remaining in the demised premises after Tenant's removal shall be
deemed abandoned and may, at the election of Owner either be retained as
Owner's property or may be removed from the demised premises by Owner, at
Tenant's expense.
|
|
|
Maintenance
|
|
|
and
|
|
Repairs:
|
4. Tenant shall,
throughout the term of this lease, take good care of the demised premises
and the fixtures and appurtenances therein. Tenant shall be responsible
injury to the demised premises or any other part of the building and the
systems and equipment thereof, whether requiring structural or
nonstructural repairs caused by or resulting from, carelessness, omission,
neglect or improper conduct of Tenant, Tenant's subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor,
service or equipment done for, or supplied to, Tenant or any subtenant, or
arising out of the installation, use or operation of the property or
equipment of Tenant or any subtenant. Tenant shall also repair all damage
to the building and the demised premises caused by the moving of Tenant's
fixtures, furniture and, equipment Tenant shall promptly make, at Tenant's
expense, all repairs in ' and to the demised premises for which Tenant is
responsible, using only the contractor for the trade or trades in
question, selected from a list of at least two contractors per trade
submitted by Owner.3
Any other repairs in or to the building or the facilities and systems
thereof, for which Tenant is responsible, shall be performed by Owner at
the Tenant's expense. Owner shall maintain in good working order and
repair the exterior and the structural portions of the building, including
the structural portions of the demised premises 4
and the public portions of the building interior and the building
plumbing, electrical, heating and ventilating systems (to the extent such
systems presently exist) serving the demised premises. Tenant agrees to
give prompt notice of any defective condition in the demised premises for
which Owner may be responsible hereunder. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of
Owner by reason of inconvenience, annoyance or injury to business arising
from Owner or others making repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises,
or in and to the fixtures, appurtenances or equipment thereof. It is
specifically agreed that Tenant shall not be entitled to any setoff or
reduction of rent by reason of any failure of Owner to comply with the
covenants of this or any other article of this lease. Tenant agrees that
Tenant's sole remedy at law in such instance will be by way of an action
for damages for breach of contract. The provisions of this Article 4 shall
not apply in the case of fire or other casualty, which are dealt with in
Article 9 hereof.
|
Window
|
Cleaning:
|
5. Tenant will not clean
nor require, permit, suffer or allow any window in the demised premises to
be cleaned from the outside in violation of Section 202 of the Labor Law
or any other applicable law, or of the Rules of the Board of Standards and
Appeals, or of any other Board or body having or asserting
jurisdiction.
|
Requirements
of
Law
Fire
Insurance,
|
Floor
Loads:
|
6. Prior to the
commencement of the lease term, if Tenant is then in possession, and at
all times thereafter, Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations
of all state, federal municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to
law, and all orders, rules and regulations of the New York Board of Fire
Underwriters, Insurance Services Office, or any similar body which shall
impose any premises, whether or not arising out of Tenant's use or manner
of use thereof, (including Tenant's permitted use) or, with respect to the
building if arising out of Tenant's use or manner of use of the demised
premises or the building (including the use permitted under the ease).
Nothing herein shall require Tenant to make structural repairs or
alterations unless Tenant has, by its manner of use of the demised
premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect
thereto. Tenant may, after securing Owner to Owner's satisfaction against
all damages, interest, penalties and expenses, including, but not limited
to, reasonable attorney's fees, by cash deposit or by surety bond in an
amount and in a company satisfactory to Owner. contest and appeal any such
laws, ordinances, orders, rules, regulations or requirements provided same
is done with all reasonable promptness and provided such appeal shall not
subject Owner to prosecution for a criminal offense, or constitute a
default under any lease or mortgage under which Owner may be obligated, or
cause the demised premises or any part thereof to be condemned or vacated.
Tenant shall not do or permit any act or thing to be done in or to the
demised premises which is contrary to law, or which will invalidate or be
in conflict with public liability, fire or other policies of insurance at
any time carried by or for the benefit of Owner with respect to the
demised premises or the building of which the demised premises form a
part, or which shall or might subject Owner to any liability or
responsibility to any person, or for property damage. Tenant shall not
keep anything in the demised premises, except as now or hereafter
permitted by the Fire Department, Board of Fire Underwriters, Fire
Insurance Rating Organization or other authority having jurisdiction, and
then only in such manner and such, quantify so as not to increase the rate
for fire insurance applicable to the building, nor use the demised
premises in a manner which will increase the insurance rate for the
building or any properly located therein over that in effect prior to the
commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this article, and if by
reason of such failure me fire insurance rate shall, at the beginning of
this lease, or at any time thereafter, be higher than it otherwise would
be, then, Tenant shall reimburse Owner, as additional rent hereunder, for
that portion of all fire insurance premiums thereafter paid by Owner which
shall have been charged because of such failure by Tenant. In any action
or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up" of rate for the building or the demised premises issued by the
New York Fire Insurance Exchange, or other body making fire insurance
rates applicable to said premises shall be conclusive evidence of the
facts therein stated and of the several items and charges in the fire
insurance rates then applicable to said premises. Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per
square foot area which it was designed to carry and which is allowed by
law. Owner reserves the right to prescribe the weight and position of all
safes, business machines and mechanical equipment. Such installations
shall be placed and maintained by Tenant at Tenant's expense, in settings
sufficient in Owner's judgment to absorb and prevent vibration, noise and
annoyance.
|
|
Subordination:
|
7. This lease is subject
and subordinate to all ground or underlying leases and to all mortgages
which may now or hereafter affect such leases or the real property of
which the demised premises are a part, and to all renewals, modifications,
consolidations, replacements and extensions of any such underlying leases
and mortgages. This clause shall be self-operative and no further
instrument of subordination shall be required by any ground or underlying
lessor or by any mortgagee, affecting any lease or me real property of
which the demised premises are a part. In confirmation of such
subordination, Tenant shall from time to time execute promptly any
certificate that Owner may request
|
Property
Loss
Damage
Reimbursement
|
Indemnity:
|
8. Owner or its agents
shall not be liable for any damage to property of Tenant or of others
entrusted to employees of the building, nor for loss of or damage to any
property of Tenant by damage to persons or property resulting from any
cause of whatsoever nature, unless caused by, or due to, the negligence
5
of Owner, its agents, servants or employees. Owner or its agents will not
be liable for any such damage caused by other tenants or persons in, upon
or about said building, or caused by operations in construction of any
private, public or quasi-public work. If at any time any windows of the
demised premises are temporarily closed, darkened or bricked up (or
permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to, Owner's own acts, Owner
shall not be liable for any damage Tenant may sustain thereby, and Tenant
shall not be entitled to any compensation therefore, nor abatement or
diminution of rent nor shall the same release Tenant from its obligations
hereunder, nor constitute an eviction. Tenant shall indemnify and save
harmless Owner against and from all liabilities, obligations, damages,
penalties, claims; costs and expenses for which Owner shall not be
reimbursed by insurance, including reasonable attorneys' fees, paid,
suffered or incurred as a result of any breach by Tenant, Tenant's agents,
contractors, employees, invitees, or licensees, of any covenant or
condition of this lease, or the carelessness, negligence or improper
conduct of the Tenant Tenant's agents, contractors, employees, invitees or
licensees. Tenant's liability under this lease extends to the acts and
omissions of any subtenant and any agent, contractor, employee, invitee or
licensee of any subtenant In case any action or proceeding is brought
against Owner by reason of any such claim, Tenant, upon written notice
from Owner, will, at Tenant's expense, resist or defend such action or
proceeding by counsel approved by Owner in writing, such approval not to
be unreasonably withheld.
|
Destruction,
Fire
and Other
|
Casualty:
|
9. (a) If the demised
premises or any part thereof shall be damaged by fire or other casualty,
Tenant shall give immediate notice thereof to Owner, and this lease shall
continue in full force and effect except as hereinafter set form, (b) If
the demised premises are partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by, and
at the expense of, Owner, and the rent and other items of additional rent
until such repair shall be substantially completed, shall be apportioned
from the day following the casualty, according to the part of the demised
premises which is usable. (c) If the demised premises are totally damaged
or rendered wholly unusable by fire or other casualty, then the rent and
other items of additional rent, as hereinafter expressly provided, shall
be proportionately paid up to the time of the casualty, and thenceforth
shall cease until the date when the demised premises shall have been
repaired and restored by Owner (or if sooner reoccupied in part by the
Tenant then rent shall be apportioned as provided in subsection (b)
above), subject to Owner's right to elect not to restore the same as
hereinafter provided. (d) If the demised premises are rendered wholly
unusable or (whether or not the demised premises are damaged in whole or
in part) if the building shall be so damaged that Owner shall decide to
demolish it or to rebuild it then, in any of such events, Owner may elect
to terminate this lease by written notice to Tenant given within ninety
(90) days after such fire or casualty, or thirty (30) days after
adjustment of the insurance claim for such fire or casualty, whichever is
sooner, specifying a date for the expiration of the lease, which date
shall not be more than sixty (60) days after the giving of such notice,
and upon the date specified in such notice the term of this lease shall
expire as fully and completely as if such date were the date set forth
above for the termination of this lease, and Tenant shall forthwith quit
surrender and vacate the demised premises without prejudice however, to
Landlord's rights and remedies against Tenant under the lease provisions
in effect prior to such termination, and any rent owing shall be paid up
to such date, and any payments of rent made by Tenant which were on
account of any period subsequent to such date shall be returned to Tenant.
Unless Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions of (b)
and (c) hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the demised premises as promptly as
reasonably possible, all of Tenant's salvageable inventory and movable
equipment furniture, and other property. Tenant's liability for rent shall
resume five (5) days after written notice from Owner that the demised
premises are substantially ready for Tenant's occupancy. (e) Nothing
contained hereinabove shall relieve Tenant from liability that may exist
as a result of damage from fire or other casualty. Notwithstanding
anything contained to the contrary in subdivisions (a) through (e) hereof,
including Owner's obligation to restore under subparagraph (b) above, each
party shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage resulting
from fire or other casualty, and to the extent that such insurance is in
force and collectible, and to the extent permitted by law, Owner and
Tenant each hereby releases and waives all right of recovery with respect
to subparagraphs (b), (d), and (e) above, against the other, or any one
claiming through or under each of them by way of subrogation or otherwise.
The release and waiver herein referred to shall be deemed to include any
loss or damage to the demised premises and/or to any personal property,
equipment trade fixtures, goods and merchandise located therein. The
foregoing release and waiver shall be in force only if both releasors'
insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent that such
waiver can be obtained only by the payment of additional premiums, then
the parry benefiting from the waiver shall pay such premium within ten
days after written demand or shall be deemed to have agreed that the party
obtaining insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant
acknowledges that Owner will not carry insurance on Tenant's furniture
and/or furnishings or any fixtures or equipment improvements, or
appurtenances removable by Tenant and agrees that Owner will not be
obligated to repair any damage thereto or replace the same, (f) Tenant
hereby waives the provisions of section 227 of the Real Property Law and
agrees that the provisions of this article shall govern and control in
lieu thereof. 6
|
Eminent
|
Domain:
|
10. If the whole or any
part of the demised premises shall be acquired or condemned by Eminent
Domain for any public or quasi public use or purpose, then, and in that
event the term of this lease shall cease and terminate from the date of
title vesting in such proceeding, and Tenant shall have no claim for the
value of any unexpired term of said lease, and assigns to Owner, Tenant's
entire interest in any such award. Tenant shall have the right to make an
independent claim to the condemning authority for the value of Tenant's
moving expenses and personal property, trade fixtures and equipment
provided Tenant is entitled pursuant to the terms of the lease to remove
such property, trade fixtures and equipment at the end of the term, and
provided further such claim does not reduce Owner's
award.
|
Assignment,
Mortgage,
|
Etc.:
|
11. Tenant, for itself,
its heirs, distributees, executors, administrators, legal representatives,
successors and assigns, expressly covenants that it shall not assign,
mortgage or encumber this agreement nor underlet or suffer or permit the
demised premises or any part thereof to be used by others, without the
prior written consent of Owner in each instance. Transfer of the majority
of the stock of a corporate Tenant or the majority interest in any
partnership or other legal entity which is Tenant shall be deemed an
assignment If this lease be assigned, or if the demised premises or any
part thereof be underlet or occupied by anybody other than Tenant Owner
may, after default by Tenant collect rent from the assignee, under-tenant
or occupant and apply the net amount collected to "the rent herein
reserved, but no such assignment, underletting, occupancy or collection
shall be deemed a waiver of this covenant, or the acceptance of the
assignee, undertenant or occupant as tenant or a release of Tenant from
the further performance by Tenant of covenants on the part of Tenant
herein contained The consent by Owner to an assignment or underletting
shall not in any way be construed to relieve Tenant from obtaining the
express consent in writing of Owner to any further assignment or
underletting.
|
Electric
Current:
|
F
|
12. Rates and conditions
in respect to submetering or rent inclusion, as the case may be, to be
added in RIDER attached hereto. Tenant covenants and agrees that at all
times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation, and
Tenant may not use any electrical equipment which, in Owner's opinion,
reasonably exercised, will overload such installations or interfere with
the use thereof by other tenants of the building. The change at any time
of the character of electric service shall in no way make Owner liable or
responsible to Tenant for any loss, damages or expenses which Tenant may
sustain.
|
Access
to
|
Premises:
|
13. Owner or Owner's
agents shall have the right (but shall not be obligated) to enter the
demised premises in any emergency at any time, and, at other reasonable
times, 7
to examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to the
demised premises or to any other portion of the building or which Owner
may elect to perform. Tenant shall permit Owner to use and maintain and
replace pipes, ducts, and conduits in and through the demised premises and
to erect new pipes, ducts, and conduits therein, provided they are
concealed within the walls, floor, or ceiling. 8
Owner may, during the progress of any work in the demised premises, take
all necessary materials and equipment into said premises without the same
constituting an eviction, nor shall the Tenant be entitled to any
abatement of rent while such work is in progress, nor to any damages by
reason of loss or interruption of business or otherwise. Throughout the
term hereof, Owner shall have the right to enter the demised premises at
reasonable hours 9
for the purpose of showing the same to prospective purchasers or
mortgagees of the building, and during the last six months of the term,
for the purpose of showing the same to prospective tenants. If Tenant is
not present to open and permit an entry into the demised premises, Owner
or Owner's agents may enter the same whenever such entry may be necessary
or permissible by master key or forcibly, and provided reasonable care is
exercised to safeguard Tenant's property, such entry shall not render
Owner or its agents liable therefore, nor in any event shall the
obligations of Tenant hereunder be affected. if during the last month of
the term Tenant shall have removed all or substantially all of Tenant's
property therefrom, Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent,
or incurring liability to Tenant for any compensation, and such act shall
have no effect on this lease or Tenant's obligations
hereunder.
|
Vault,
Vault
Space,
|
Area:
|
14. No vaults, vault
space or area, whether or not enclosed or covered, not within the property
line of the building, is leased hereunder, anything contained in or
indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building.
All vaults and vault space and all such areas not within the property line
of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license
be revoked, or if the amount of such space or area be diminished or
required by any federal, state or municipal authority or public utility,
Owner shall not be subject to any liability, nor shall Tenant be entitled
to any compensation or diminution or abatement of rent, nor shall such
revocation, diminution or requisition be deemed constructive or actual
eviction. Any tax, the or charge of municipal authorities for such vault
or area shall be paid by Tenant
|
|
Occupancy:
|
15. Tenant will not at
any time use or occupy the demised premises in violation of the
certificate of occupancy issued for the building of which the demised
premises are apart Tenant has inspected the demised premises and accepts
them as is, subject to the riders annexed hereto with respect to Owner's
work, if any. In any event, Owner makes no representation as to the
condition of the demised premises, and Tenant agrees to accept the same
subject to violations, whether or not of record. 10
|
|
Bankruptcy:
|
16. (a) Anything
elsewhere in this lease to the contrary notwithstanding, this lease may be
cancelled by Owner by the sending of a written notice to Tenant within a
reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of
any state naming Tenant (or a guarantor of any of Tenant's obligations
under this lease) as the debtor; or (2) the making by Tenant (or a
guarantor of any of Tenant's obligations under this lease) of an
assignment or any other arrangement for the benefit of creditors under any
state statute. Neither Tenant nor any person claiming through or under
Tenant or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit
and surrender the demised premises. If this lease shall be assigned in
accordance with its terms, the provisions of this Article 16 shall be
applicable only to the party then owning Tenant's interest in this
lease.
|
(b) It is
stipulated and agreed that in the event of the termination of this lease
pursuant to (a) hereof, Owner shall forthwith, notwithstanding any other
provisions of this lease to the contrary, be entitled to recover from Tenant as
and for liquidated damages, an amount equal to the difference between the rent
reserved hereunder for the unexpired portion of the term demised and the fair
and reasonable rental value of the demised premises for the same period. In the
computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination, and the fair and
reasonable rental value of the demised premises for the period for which such
installment was payable, shall be discounted to the date of termination at the
rate of four percent (4%) per annum. If such demised premises or any part
thereof be re-let by the Owner for the unexpired term of said lease, or any part
thereof; before presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such re-letting shall
be deemed to be the fair and reasonable rental value for the part or the whole
of the demised premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages, by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater; equal to, or less than, the amount of the
difference referred to above.
|
Default:
|
17. (1) If Tenant
defaults in fulfilling any of the covenants of this lease other than the
covenants for the payment of rent or additional rent; or if the demised
premises become vacant or deserted; or if any execution or attachment
shall be issued against Tenant or any of Tenant's property, whereupon the
demised premises shall be taken or occupied by someone other than Tenant;
or if this lease be rejected under §365 of Title 11 of the U.S. Code
(Bankruptcy Code); or if Tenant shall have failed, after five (5) days
written notice, to redeposit with Owner any portion of the security
deposit hereunder which Owner has applied to the payment of any rent and
additional rent due and payable hereunder, or if Tenant shall be in
default with respect to any other lease between Owner and Tenant; or if
Tenant shall fail to move into or take possession of the demised premises
within thirty (30) days after the commencement of the term of this lease,
then, in any one or more of such events, upon Owner serving a written
11
days notice upon Tenant specifying the nature of said default, and upon
the expiration of said 11
days, if Tenant shall have failed to comply with or remedy such
default, or if the said default or omission complained of shall be of a
nature that, the same cannot be completely cured or remedied within said
11
day period, and if Tenant shall not have diligently commenced
curing such default within such 11
day period, and shall not thereafter with reasonable diligence and
in good faith, proceed to remedy or cure such default, then Owner may
serve a written five (5) days notice of cancellation of this lease upon
Tenant and upon the expiration of said five (5) days this lease and the
term thereunder shall end and expire as fully and completely as if the
expiration of such five (5) day period were the day herein definitely
fixed for the end and expiration of this lease and the term thereof, and
Tenant shall then quit and surrender the demised premises to Owner, but
Tenant shall remain liable as hereinafter
provided.
|
(2) If
the notice provided for in (1) hereof shall have been given, and the term shall
expire as aforesaid; or if Tenant shall make default in the payment of the rent
reserved herein, or any item of additional rent , herein mentioned, or any part
of either, or in making any other payment herein required; 12
then, and in any of such events, Owner may without notice 13
re-enter the demised premises either by force or otherwise, and dispossess
Tenant by summary proceedings or otherwise, and the legal representative of
Tenant or other occupant of the demised premises, and remove their effects and
hold the demised premises as if this lease had not been made, and Tenant hereby
waives the service of notice of intention to re-enter or to institute legal
proceedings to that end. If Tenant shall make default hereunder prior to the
date fixed as the commencement of any renewal or extension of this lease, Owner
may cancel and terminate such renewal or extension agreement by written
notice.
Remedies
of
Owner
and
Waiver
of
|
Redemption:
|
18. In case of any such
default re-entry, expiration and/or dispossess by summary proceedings or
otherwise, (a) the rent shall become due thereupon and be paid up to the
time of such re-entry, dispossess and/or expiration, (b) Owner may re-let
the demised premises or any part or parts thereof, either in the name of
Owner or otherwise, for a term or terms, which may at Owner's option be
less than or exceed the period which would otherwise have constituted the
balance of the term of this lease, and may grant concessions or free rent
or charge a higher rental than that in this lease, and/or (c) Tenant or
the legal representatives of Tenant shall also pay to Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's
covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount if any, of the
rents collected on account of the lease or leases of the demised premises
for each month of the period which would otherwise have constituted the
balance of the term of this lease. The failure of Owner to re-let the
demised premises, or any part or parts thereof, shall not release or
affect Tenant's liability for damages. In computing such liquidated
damages there shall be added to the said deficiency such expenses as Owner
may incur in connection with re-letting, such as legal expenses,
reasonable attorney's fees, brokerage, advertising and for keeping the
demised premises in good order or for preparing the same for re-letting.
Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease, and any suit brought to
collect the amount of the deficiency for any month shall not prejudice in
any way the rights of Owner to collect the deficiency for any subsequent
month by a similar proceeding. Owner, in putting the demised premises in
good order or preparing the same for re-rental may, at Owner's option,
make such alterations, repairs, replacements, and/or decorations in the
demised premises as Owner, in Owner's sole judgment considers advisable
and necessary for the purpose of re-letting the demised premises, and the
making of such alterations, repairs, replacements, and/or decorations
shall not operate or be construed to release Tenant from liability
hereunder as aforesaid.14
"Owner shall in no event be liable in any way whatsoever for failure to
re-let the demised premises, or in the event that the demised premises are
re-let for failure to collect the rent thereof under such re-letting, and
in no event shall Tenant be entitled to receive any excess, if any, of
such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any
of the covenants or provisions hereof, Owner shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity
as if re-entry, summary proceedings and other remedies were not herein
provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Owner obtaining possession
of the demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or
otherwise.
|
Fees
and
|
Expenses:
|
19. If Tenant shall
default in the observance or performance of any term or covenant on
Tenant's part to be observed or performed under, or by virtue of, any of
the terms or provisions in any article of this lease, after notice, if
required, and upon expiration of any applicable grace period, if any,
(except in an emergency), then, unless otherwise provided elsewhere in
this lease, Owner may immediately, or at any time thereafter and without
notice, perform the obligation of Tenant thereunder. If Owner, in
connection with the foregoing, or in connection with any default by Tenant
in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
reasonable attorneys fees, in instituting, prosecuting or defending any
action or proceeding, and prevails in any such action or proceeding, then
Tenant will reimburse Owner for such sums so paid, or obligations
incurred, with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent
hereunder, and shall be paid by Tenant to Owner within ten (10) days of
rendition of any xxxx or statement to Tenant therefore. If Tenant's lease
term shall have expired at the time of making of such expenditures or
incurring of such obligations, such sums shall be recoverable by Owner, as
damages.
|
Building
Alterations
and
|
Management:
|
20. Owner shall have the
right at any time without the same constituting an eviction and without
incurring liability to Tenant therefore, to change the arrangement and/or
location of public entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or other public parts of the building, and to
change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and
no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or other Tenants making any repairs
in the building or any such alterations, additions and improvements.
Furthermore, Tenant shall not have any claim against Owner by reason of
Owner's imposition of such 15
Controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
|
No
Repre-
sentations
|
Owner:
|
21. 16
Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon
which it is erected or the demised premises, the rents, leases, expenses
of operation or any other matter or thing affecting or related to the
demised premises, except as herein expressly set forth, and no rights,
easements or licenses are acquired by Tenant by implication or otherwise,
except as expressly set forth in the provisions of this lease. Tenant has
inspected the building and the demised premises and is thoroughly
acquainted with their condition and agrees to take the same "as-is", and
acknowledges feat the taking of possession of the demised premises by
Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory
condition at the time such possession was so taken, except as to latent
defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and
completely expresses the agreement between Owner and Tenant, and any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in part, unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is
sought
|
End
of
|
Term:
|
22. Upon the expiration
or other termination of the term of this lease, Tenant shall quit and
surrender to Owner the demised premises, "broom-clean", in good order and
condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall
remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease.
If the last day of the term of this lease or any renewal thereof, falls on
Sunday, this lease shall expire at noon on the preceding Saturday, unless
it be a legal holiday, in which case it shall expire at noon on the
preceding business day.
|
Quiet
|
Enjoyment:
|
23. Owner covenants and
agrees wife Tenant that upon Tenant paving the rent and additional rent
and observing and performing all the terms, covenants and conditions, on
Tenant's part to be observed and performed, Tenant may peaceably and
quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article
31 hereof; and to the ground leases, underlying leases and mortgages
hereinbefore mentioned.
|
Failure
to
Give
|
Possession:
|
24. If Owner is unable
to give possession of the demised premises on the date of the commencement
of the term hereof because of the holding-over or retention of possession
of any tenant, undertenant or occupants, or if the demised premises are
located in a building being constructed, because such building has not
been sufficiently completed to make the demised premises ready for
occupancy, or because of the fact that a certificate of occupancy has not
been procured, or for any other reason, Owner shall not be subject to any
liability for failure to give possession on said date and the validity of
the lease shall not be impaired under such circumstances, nor shall the
same be construed in any way to extend the term of this lease, but the
rent 17
payable hereunder shall be abated (provided Tenant is not responsible for
Owner's inability to obtain possession or complete construction) until
after Owner shall have given Tenant written notice that the Owner is able
to deliver possession in condition required by this lease. If permission
is given to Tenant to enter into possession of the demises premises, or to
occupy premises other than the demised premises, prior to the date
specified as the commencement of the term of this lease, Tenant covenants
and agrees that such possession and/or occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this lease,
except the obligation to pay the fixed annual rent, set forth in the
preamble to this lease. The provisions of this article are intended to
constitute "an express provision to the contrary" within the meaning of
Section 223-a of the New York Real Property Law. 18
|
|
No
Waiver:
|
25. The failure of Owner
to seek redress for violation of, or to insist upon the strict performance
of, any covenant or condition of this lease or of any of the Rules or
Regulations, set forth or hereafter adopted by Owner, shall not prevent a
subsequent act which would have originally constituted a violation from
having all the force and effect of an original violation. The receipt by
Owner of rent and/or additional rent with knowledge of the breach of any
covenant of this lease shall not be deemed a waiver of such breach, and no
provision of this lease shall be deemed to have been waived by Owner
unless such waiver be in writing signed by Owner, No payment by Tenant or
receipt by Owner of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement of any check or
any letter accompanying any check or payment as rent be deemed an accord
and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue
any other remedy in this lease provided. No act or thing done by Owner or
Owner's agents during the term hereby demised shall be deemed an
acceptance of a surrender of the demised premises, and no agreement to
accept such surrender shall be valid unless in writing signed by Owner. No
employee of Owner or Owner's agent shall have any power to accept the keys
of said premises prior to the termination of the lease, and the delivery
of keys to any such agent or employee shall not operate as a termination
of the lease or a surrender of the demised
premises.
|
Waiver
of
|
Trial by
Jury:
|
26. It is mutually
agreed by and between Owner and Tenant that the respective parties hereto
shall, and they hereby do, waive trial by jury in any action proceeding or
counterclaim brought by either of the parties hereto against the other
(except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with, this lease, the relationship
of Owner and Tenant, Tenant's use of, or occupancy of, the demised
premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any proceeding
or action for possession, including a summary proceeding for possession of
the demised premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding, including a
counterclaim under Article 4, except for statutory mandatory
counterclaims.
|
Inability
to
|
Perform:
|
27. This lease and the
obligation of Tenant to pay rent hereunder and perform all of the other
covenants and agreements hereunder on part of Tenant to be performed shall
in no way be affected, impaired or excused because Owner is unable to
fulfill any of its obligations under this lease, or to supply, or is
delayed in surviving, any service expressly or impliedly to be supplied,
or is unable to make, or is delayed in making any repair, additions,
alterations, or decorations, or is unable to supply, or is delayed in
supplying, any equipment, fixtures, or other materials, if Owner is
prevented or delayed from so doing by reason of strike or labor troubles
or any cause whatsoever including, but not limited to, government
preemption or restrictions, or by reason of any rule, order or regulation
of any department or subdivision thereof of any government agency, or by
reason of the conditions which have been or are affected, either directly
or indirectly, by war or other emergency. 19
|
Bills
and
|
Notices:
|
28. Except as otherwise
in this lease provided, any notice, statement, demand or other
communication required or permitted to be given, rendered or made by
either party to the other, pursuant to this lease or pursuant to any
applicable law or requirement of public authority, shall be in writing
(whether or not so stated elsewhere in this lease) and shall be deemed to
have been properly given, rendered or made, if sent by registered or
certified mail (express mail, if available), return receipt requested, or
by courier guaranteeing overnight delivery and furnishing a receipt in
evidence thereof; addressed to the other party at the address hereinabove
set forth (except feat after the date specified as the commencement of the
term of this lease, Tenant's address, unless Tenant shall give notice to
the contrary, shall be the building), and shall be deemed to have been
given, rendered or made (a) on the date delivered, if delivered to Tenant
personally, (b) on the date delivered, if delivered by overnight courier
or (c) on the date which is two (2) days after being mailed. Either party
may, by notice as aforesaid, designate a different address or addresses
for notices, statements, demand or other communications intended for it
Notices given by Owner's managing agent shall be deemed a valid notice if
addressed and set in accordance wife the provisions of this Article. At
Owner's option, notices and bills to Tenant may be sent by hand delivery.
20
|
Services
Provided
by
|
Owner:
|
29. Owner shall provide;
(a) necessary elevator facilities on business days from 8 a.m. to 6 p.m.
and have one elevator subject to call at all other times; (b) heat to the
demised premises when and as required by law, on business days from 8 a.m.
to 6 p.m.; (c) water for ordinary lavatory purposes, but if Tenant uses or
consumes water for any other purposes or in unusual quantities (of which
fact Owner shall be the sole judge), Owner may install a water meter at
Tenant's expense, which Tenant shall thereafter maintain at Tenant's
expense in good working order and repair, to register such water
consumption, and Tenant shall pay for water consumed as shown on said
meter as additional rent as and when bills are rendered. If,
however, said premises are to be kept clean by Tenant, it shall be done at
Tenant's sole expense, in a manner reasonably satisfactory to Owner, and
no one other than persons approved by Owner shall be permitted to enter
said premises or the building of which they are a part for such purpose.
Tenant shall pay Owner the cost of removal of any of Tenant's refuse and
rubbish from the building; (e) if the demised premises are serviced by
Owner's air conditioning/cooling and ventilating system, air
conditioning/cooling will be furnished to Tenant from May 15th through
September 30th on business days (Mondays through Fridays, holidays
excepted) from 8:00 a.m. to 6:00 pm., and ventilation will be furnished on
business days during the aforesaid hours except when air
conditioning/cooling is being furnished as aforesaid. If Tenant requires
air conditioning/cooling or ventilation for more extended hours on
Saturdays, Sundays or on holidays, as defined under Owner's contract wife
the applicable Operating Engineers contract Owner will furnish the same at
Tenant's expense. F RIDER to be added
in respect to rates and conditions for such additional service; (f) Owner
reserves the right to stop services of the heating, elevators, plumbing,
air-conditioning, electric, power systems or cleaning or other services,
if any, when necessary by reason of accident or for repairs, alterations,
replacements or improvements necessary or desirable in the judgment of
Owner, for as long as may be reasonably required by reason thereof. 21
If the building of which the demised premises are a part supplies manually
operated elevator service, Owner at any time may substitute automatic
control elevator service and proceed diligently wife alterations necessary
therefor without in any way affecting this tease or the obligations of
Tenant hereunder. 21a
|
|
Captions:
|
30. The Captions are
inserted only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this lease nor the intent of any
provisions thereof.
|
|
Definitions:
|
31. The term "office",
or "offices", wherever used in this lease, shall not be construed to mean
premises used as a store or stores, for the sale or display, at any time,
of goods, wares or merchandise, of any kind, or as a restaurant, shop,
booth, bootblack or other stand, xxxxxx shop, or for other similar
purposes, or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee
in possession for the time being, of the land and building (or the owner
of a lease of the building or of the land and building) of which the
demised premises form a part, so that in the event of any sale or sales or
conveyance, assignment or transfer of said land and building, or of said
lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be, and hereby is, entirely freed and
relieved of all covenants and obligations of Owner hereunder, and it shall
be deemed and construed without further agreement between the parties or
their successors in interest or between the parties and the purchaser, at
any such sale, or the said lessee of the building, or of the land and
building, that the purchaser, grantee, assignee or transferee or the
lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
'"re-entry'' as used in this lease are not restricted to their technical
legal meaning. The term "business days" as used in this lease shall
exclude Saturdays, Sundays and all days as observed by the State or
Federal Government as legal holidays and those designated as holidays by
the applicable building service union employees service contract or by the
applicable Operating Engineers contract with respect to HVAC service.
Wherever it is expressly provided in this lease that consent shall not be
unreasonably withheld, such consent shall not be unreasonably
delayed.
|
Adjacent
Excavation-
|
Shoring:
|
32. If an excavation
shall be made upon land adjacent to the demised premises, or shall be
authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, a license to enter upon the demised
premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building, of which demised premises
form, a part, from injury or damage, and to support the same by proper
foundations, without any claim for damages or indemnity against Owner, or
diminution or abatement of rent.
|
Rules
and
|
Regulations:
|
33. Tenant and Tenant's
servants, employees, agents, visitors, and licensees shall observe
faithfully, and comply strictly with, the Rules and Regulations and such
other and further reasonable Rules and Regulations as Owner and Owner's
agents may from time to time adopt Notice of any additional Rules or
Regulations shall be given in such manner as Owner may elect In case
Tenant disputes the reasonableness of any additional Rules or Regulations
hereafter made or adopted by Owner or Owner's agents, the parties hereto
agree to submit the question of the reasonableness of such Rules or
Regulations for decision to the New York office of the American
Arbitration Association, whose determination shall be final and conclusive
upon the parties hereto, The right to dispute the reasonableness of any
additional Rules or Regulations upon Tenant's part shall be deemed waived
unless the same shall be asserted by service of a notice, in writing, upon
Owner, within 22
days after the giving of notice thereof. Nothing in this lease contained
shall be construed to impose upon Owner any duty or obligation to enforce
the Rules and Regulations or terms, covenants or conditions in any other
lease, as against any other tenant, and Owner shall not be liable to
Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or
licensees.
|
|
F
Security:
|
34. Tenant has deposited
with Owner the sum $45,066.68 as security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this
lease; it is agreed that in the event Tenant defaults in respect of any of
the terms, provisions and conditions of this lease, including, but not
limited to, the payment of rent and additional rent, Owner may use, apply
or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent, or any other sum
as to which Tenant is in default or for any sum which Owner may expend or
may be required to expend by reason of Tenant's default in respect of any
of the terms, covenants and conditions of this lease, including but not
limited to, any damages or deficiency in the re- letting of the demised
premises, whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Owner. In the case of every such
use, application or retention, Tenant shall, within five (5) days after
demand, pay to Owner the sum so used, applied or retained which shall be
added to the security deposit so that the same shall be replenished to its
former amount. In the event that Tenant 23
the security shall be returned to Tenant after the date fixed as
the end of the lease and after delivery of entire possession of the
demised premises to Owner. In the event of a sale of the land and
building, or leasing of the building of which the demised premises form a
part, Owner shall have the right to transfer the security to the vendee or
lessee, and Owner shall thereupon be released by Tenant from all liability
for the return of such security; and Tenant agrees to look to the new
Owner solely for the return of said security, and it is agreed mat the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign
or encumber, or attempt to assign or encumber, the monies deposited herein
as security, and that neither Owner nor its successors or assigns shall be
bound by any such assignment encumbrance, attempted assignment or
attempted encumbrance.
|
|
Estoppel
Certificate:
|
35. Tenant, at any time,
and from time to time, upon at least ten (10) days prior notice by Owner,
shall execute, acknowledge and deliver to Owner, and/or to any other
person, firm or corporation specified by Owner, a statement certifying
that this lease is unmodified and in full force and effect (or, if mere
have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the
rent and additional rent have been paid, and stating whether or not there
exists any default by Owner under this lease, and, if so, specifying each
such default and such other information as shall be required of
Tenant
|
Successors
|
and
Assigns:
|
36. The covenants,
conditions and agreements contained in this lease shall bind and inure to
the benefit of Owner and Tenant and their respective heirs, distributees,
executors, administrators, successors, and except as otherwise provided in
this lease, their assigns. Tenant shall look only to Owner's estate and
interest id the land and building, for the satisfaction of Tenant's
remedies for the collection of a judgment (or other judicial process)
against Owner in the event of any default by Owner hereunder, and no other
property or assets of such Owner (or any partner, member, officer or
director thereof, disclosed or undisclosed), shall be subject to levy,
execution or other enforcement procedure for me satisfaction of Tenant's
remedies under, or with respect to, this lease, the relationship of .
Owner and Tenant hereunder, or Tenant's use and occupancy of the demised
premises.
|
SEE RIDER
ATTACHED HERETO AND FORMING A PART HEREOF CONTAINING ARTICLES 37-76
In Witness Whereof, Owner and
Tenant have respectively signed and sealed this lease as of the day and year
first above written.
|
Witness
for Owner:
|
NEWMARK
& COMPANY REAL ESTATE, INC., AS AGENT FOR: 38TH AND 8TH LLC, NEW 520
GSH LLC NEW 520 TRIPLE CROWN LLC AND NEW 520 EIGHTH LLC
|
|
|
/s/
Xxxx Xxxxx
|
||
|
Witness
for Tenant:
|
EMERGING
VISION USA, INC.
|
|
|
By
/s/ Xxxxx Xxxxx
|
||
|
President
& CEO
|
ACKNOWLEDGEMENT
STATE
OF NEW YORK,
SS.:
COUNTY
OF NEW YORK
On the
11th day of December in the year 2009, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxx Xxxxx personally known
to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individuals), or the person upon behalf of which the individual(s) acted,
executed the instrument.
|
/s/
Xxxxxx Xxxxx
|
|
|
NOTARY
PUBLIC
|
|
|
Xxxxxx
Xxxxx
|
|
|
Notary
Public, State of New York
|
|
|
Qualified
In New York County
|
|
|
Llc.
#00-0000000
|
|
|
My
Comm. Expires 9/17/2011
|
RIDER
ATTACHED TO AND MADE A PART OF LEASE DATED DECEMBER 15, 2009 BETWEEN
NEWMARK & COMPANY REAL ESTATE, INC. AS AGENT FOR: 38TH AND
8TH LLC,
NEW 520 GSH LLC, NEW 520 TRIPLE CROWN, LLC AND NEW 520 EIGHTH LLC (AS
"LANDLORD") AND EMERGING VISION USA, INC. (AS "TENANT")
Wherever
the terms, covenants and conditions contained in the printed portion of this
Lease shall be in conflict with any of the terms covenants and conditions in the
Additional Clauses 37 - 76 that follow, the Additional Clauses shall
prevail.
|
37.
|
ELECTRIC
CURRENT
|
37.01 Landlord
shall furnish electricity to the Demised Premises on a submetered basis and
Tenant covenants and agrees to purchase the same from Landlord or Landlord's
designated agent at charges, terms and rates set, from time to time, during the
term of this Lease by Landlord, which shall not be higher than those specified
in the service classification in effect on December 1, 2009, pursuant to which
Landlord then purchased electric current from the public utility corporation
servicing the Building; provided, however, said charges shall be increased in
the same percentage as any percentage increase in the billing to Landlord for
electricity for the entire Building, by reason of increase in Landlord's
electric rates, charges, fuel adjustment or service classification or by taxes
or charges of any kind imposed thereon, or for any other such reason, subsequent
to December 1, 2009. Any such percentage increase in Landlord's
billing for electricity shall be computed by the application of the average
consumption (energy and demand) of electricity for the entire Building for the
twelve (12) full months immediately prior to the rate change, other change, or
any changed methods of or rules on billing for same, on a consistent basis to
the new rate and to the service classification in effect on December 1,
2009 If the average consumption of electricity for the entire
Building for said prior twelve (12) months cannot reasonably be applied and used
with respect to changed methods of or rules on billing, then the percentage
increase shall be computed by the use of the average consumption (energy and
demand) for the entire Building for the first three (3) months after such
change, projected to a full twelve (12) months; and that same consumption, so
projected, shall be applied to the service classification in effect
on December 1, 2009. Where more than one meter measures
the service of Tenant in the Building, the service rendered through each meter
may be computed and billed separately in accordance with the provisions
hereof. Bills therefore shall be rendered at such times as Landlord
may elect and the amount as computed from a meter shall be deemed to be, and be
paid as, additional rent. In no event shall bills
rendered by Landlord pursuant to this Section 37 include any charge for
electricity furnished to portions of the Building other than the Demised
Premises.
37.02 Tenant's
use of electric current in the Demised Premises shall not at any time exceed the
capacity of any of the electrical conductors and equipment in or otherwise
serving the Demised Premises. Tenant shall not make or perform or
permit the making of, any alterations to wiring, installations or other
electrical facilities in or serving the Demised Premises without the prior
consent of the Landlord in each instance (which shall not be unreasonably
withheld or delayed.) Should Landlord grant any such consent, all
additional risers or other equipment required therefor shall be installed by
Landlord and the cost thereof shall be paid by Tenant upon Landlord's demand;
any such work performed by Landlord shall be of workmanlike quality and the cost
thereof shall be comparable to costs payable for similar type installations
performed by Landlords of property similar to the Building.
37.03 Unless the same shall arise due to the
willful or negligent act of Landlord, its agent, servant, employees, contractors
or subcontractors, Landlord shall not be liable in any way to Tenant for
any failure or defect in the supply or character of electric energy furnished to
the Demised Premises by reason of any requirement act or omission of the public
utility company servicing the Building with electricity or for any other reason
whatsoever.
37.04 Landlord
reserves the right to discontinue furnishing electric energy to Tenant at any
time upon sixty (60) days' written notice to Tenant and from and after the
effective date of such termination, Landlord shall no longer be obligated to
furnish Tenant with electric energy, provided, however, that such termination
date may be extended for a time reasonably necessary for Tenant to make
arrangements to obtain electric service directly from the public utility company
servicing the Building. If Landlord exercises such right of
termination this Lease shall remain unaffected thereby and shall continue in
full force and effect; and thereafter Tenant shall diligently arrange to obtain
electric service directly from the public utility company servicing the
Building, and may utilize the then existing electric feeders, risers and wiring
serving the Demised Premises to the extent available and safely capable of being
used for such purpose and only to the extent of Tenant's then authorized
connected load, Landlord shall be obligated to pay no part of any cost required
for Tenant's direct electric service. Notwithstanding the provisions
of the first sentence of this Section 37.04, Landlord agrees that it shall not
discontinue furnishing electric energy to Tenant unless it has a bona fide
business reason for so doing.
37.05 If
any tax (other than a Federal, State or City Income Tax) is imposed upon
Landlord's receipt from the sale or resale of electricity to Tenant by any
Federal, State or Municipal Authority, Tenant covenants and agrees that where
permitted by law, Tenant's pro rata share of such taxes shall be passed on to
and included in the xxxx of and paid by Tenant to Landlord.
37.06 In
the event Tenant defaults in the payment of fixed rent more than twice in any
given twelve (12) month period , Landlord shall have the right to require Tenant
to place with Landlord a security deposit equal to charges for one (1) months
average consumption. Such deposit shall be in addition to the
security deposit called for in Article of this Lease, and shall
be payable within five (5) days of written notice by Landlord that such security
deposit is due and payable. Landlord shall have the right to require
Tenant to increase the amount of the security deposit to an equivalent of two
(2) months charges in the event that Tenant's consumption or utility electric
rates shall increase.
37.07 Notwithstanding
anything to the contrary contained herein, Tenant shall be charged for the
electric consumed by it for the Demised Premises based upon the Service
Classification rate for the usage as shown on the Tenant’s submeter or
submeters, (including all taxes, charges, terms, rates and other fees associated
with the Landlord providing electrical service) plus ten (10%)
percent. Such taxes charges, terms, and rates may be revised by the
Utility Company servicing the Building, from time to time, and any change after
the aforesaid date in the taxes, charges terms and rates to Landlord in
connection with the supply of the electric current to the Building of which the
Demised Premises are a part, will be used in the calculation of the Tenant
billing.
38. ESCALATION INCREASE IN REAL
ESTATE TAXES
|
|
Tenant
shall pay to Landlord, as additional rent, tax escalation in accordance
with this Article:
|
|
|
38.01
|
For
the purpose of this Article, the following definitions shall
apply:
|
(i) The
term "Tax Base Year" shall mean the real estate taxes for the period beginning
January 1, 2010 and ending December 31, 2010.
(ii) The
term "The Percentage", for purposes of computing tax escalation, shall be deemed
to mean .70%.
(iii) The
term "the building” shall mean all of the land and the Building and improvements
located thereon, known as 000 Xxxx 00xx
Xxxxxx, 000 Xxxx 00xx
Xxxxxx and 000 Xxxxxx Xxxxxx collectively known as 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx.
(iv) The
term "comparative year" shall mean the tax year following the year commencing
January 1, 2010 and ending December 31, 2010, and each subsequent period of
twelve (12) months.
(v) The
term "real estate taxes" shall mean the total of all taxes and special or other
assessments levied, assessed or imposed at any time by any governmental
authority upon or against the building project, and also any tax or assessment
levied, assessed or imposed at any time by any governmental authority in
connection with the receipt of income or rents from said building project to the
extent that same shall be in lieu of all or a portion of any of the aforesaid
taxes or assessments, or additions or increases thereof, upon or against said
Building Project. If, due to a future change in the method of
taxation or in the taxing authority, or for any other reason, a franchise,
income, transit, profit or other tax or governmental imposition, however,
designated, shall be levied against Landlord in substitution in whole or in part
for the real estate taxes, or in lieu of additions to or increases of said real
estate taxes, then such franchise, income, transit, profit or other tax or
governmental imposition shall be deemed to be included within the definition of
"real estate taxes" for the purposes hereof. As to special
assessments which are payable over a period of time extending beyond the term of
this Lease, only a pro rata portion thereof, covering the portion of the term of
this Lease unexpired at the time of the imposition of such assessment, shall be
included in "real estate taxes".
38.02 In
the event that the real estate taxes payable for any comparative year shall
exceed the Tax Base Year, Tenant shall pay to Landlord, as additional rent for
such comparative year, an amount equal to The Percentage of the excess (“Tax
Payment”). Before or after the start of each comparative year,
Landlord shall furnish to Tenant a statement of the real estate taxes payable
for such comparative year. If the real estate taxes payable for such
comparative year exceed the Tax Base Year, additional rent for such comparative
year, in an amount equal to The Percentage of the excess, shall be due from
Tenant to Landlord, and shall be payable by Tenant to Landlord, within thirty
(30) days after Landlord's furnishing the aforesaid statement to
Tenant. This
will be calculated by dividing the sum of the Real Estate Taxes payable for the
Building for the tax year of the City Of New York for 2009/2010 and for the tax
year of the City of New York for 2010/2011 by two. Tenant shall not be
subject to increases in real estate taxes for the twelve (12) month period
following lease commencement.
38.03. Notwithstanding
anything stated hereinabove, Landlord, in its sole discretion, may, upon written
notice to Tenant, institute a payment plan whereby Tenant’s Tax Payment with
respect to any comparative year, shall be payable to Landlord in advance, in
twelve (12) equal monthly installments payable on the first day of each month,
in amounts to be determined by Landlord.
38.04 If
the installments payable with respect to any comparative year shall be less than
the Tax Payment for that comparative year, Tenant shall pay Landlord, as
additional rent, the difference between the Tax Payment for that comparative
year and the aggregate amount paid by Tenant on account of the Tax Payment for
that comparative year within thirty (30) days after Landlord renders a xxxx with
respect thereto. If the installments payable with respect to any
comparative year shall exceed the Tax Payment for any comparative year, Tenant
shall be entitled to set off such excess, prorated over the next six (6) monthly
installments.
38.05 The
benefit of any discount for any early payment or prepayment of real estate taxes
shall accrue solely to the benefit of Landlord, and such benefits shall not be
subtracted from the real estate taxes payable for any comparative year. If,
after Tenant shall have made a payment of additional rent under this paragraph,
Landlord shall receive a refund of any portion of the real estate taxes payable
for any comparative year on which such payment of additional rent shall have
been based, as a result of a reduction of such real estate taxes by final
determination of legal proceedings, settlement or otherwise, Landlord shall
promptly after receiving the refund pay to Tenant The Percentage of the refund
less The Percentage of expenses (including attorneys' and appraisers' fees)
incurred by Landlord in connection with any such application or
proceeding. If, prior to the payment of taxes for any comparative
year, Landlord shall have obtained a reduction of that comparative year's
assessed valuation of the building project, and therefore of said taxes, then
the term "real estate taxes" for that comparative year shall be deemed to
include the amount of Landlord's expenses in obtaining such reduction in
assessed valuation, including attorneys' and appraisers' fees.
|
38.06
|
If
the real estate taxes payable for the period(s) upon which the Tax Base
Factor is based are reduced, the additional rent theretofore paid or
payable hereunder for all comparative years shall be recomputed on the
basis of such reduction, and Tenant shall pay to Landlord as additional
rent, within thirty (30) days after being billed therefor, any deficiency
between the amount of such additional rent as theretofore computed and the
amount thereof due as the result of such recomputations. Should
the real estate taxes payable for such year be increased by final
determination of legal proceedings, settlement or otherwise, then
appropriate recomputation and adjustment also shall be
made.
|
38.07 The
statements of the real estate taxes to be furnished by Landlord as provided
above shall constitute a final determination as between Landlord and Tenant of
the real estate taxes for the periods represented thereby, unless Tenant within
thirty (30) days after they are furnished shall in writing challenge their
accuracy or their appropriateness. If Tenant shall dispute said
statements, then, pending the resolution of such dispute, Tenant shall pay the
additional rent to Landlord in accordance with the statements furnished by
Landlord.
|
38.08
|
In
no event shall the fixed annual rent under this Lease (exclusive of the
additional rents under this Article) be reduced by virtue of this
Article.
|
|
38.09
|
If
the commencement date of this Lease occurs on a day which is not the first
day of a comparative year, then the additional rent due hereunder for such
comparative year shall be a proportionate share of said additional rent
for the entire comparative year, said proportionate share to be based upon
the length of time that the term of this Lease will be in existence during
such comparative year. Upon the date of any expiration or
termination of this Lease (except termination because of Tenant's default)
whether the same be the date hereinbefore set forth for the expiration of
the term or any prior or subsequent date, a proportionate share of said
additional rent for the comparative year during which such expiration or
termination occurs shall immediately become due and payable by Tenant to
Landlord, if it was not theretofore already billed and paid. The said
proportionate share shall be based upon the length of time that this Lease
shall have been in existence during such comparative
year. Landlord shall promptly cause statements of said
additional rent for that comparative year to be prepared and furnished to
Tenant. Landlord and Tenant shall thereupon make appropriate
adjustments of amounts then owing. Landlord's and Tenant's obligations to
make the adjustments referred to above shall survive any expiration or
termination of this Lease.
|
38.10 Any
delay or failure of Landlord in billing any tax escalation hereinabove provided
shall not constitute a waiver of or in any way impair the continuing obligation
of Tenant to pay such tax escalation hereunder.
39. ANNUAL RENT
INCREASE
Tenant agrees to pay to Landlord a
2.5%
increase in base rent excluding electric, in each and every year, commencing on
the first day of the third
(3rd) anniversary of the Possession
Date and continuing on each anniversary thereafter for the term of the
Lease. The increase will be compounded and cumulative.
Example:
Annual
Base
Rent: $10,000.00
(Year 1)
Increased
Annual
Base
Rent: $10,000.00
x 2.5% = $250.00 + $10,000.00 = $10,250.00 (Year
2)
Increased
Annual
Base
Rent: $10,250.00
x 2.5% = $256.25 + $10,250.00 = $10,506.25 (Year
3)
40. FUEL
40.01 Tenant
shall pay, as additional rent, collectible as such, an amount equal to .70% of
Landlord's increased cost of fuel, if any, for the Building of which the Demised
Premises forms a part for each calendar year of the term or portion thereof over
the cost of fuel for the calendar year 2009. At the end of each calendar year,
Landlord shall calculate such increased cost and xxxx Tenant for its share,
which xxxx shall be due and payable with the next regular installment of
rent.
40.02 This
obligation shall survive termination of this Lease or any renewals thereof,
except that should Tenant's term expire other than at the end of a calendar
year, Tenant shall only be obligated pro rata for the number of months in such
year which formed a part of its term. Landlord's fuel bills for the
years in question shall be conclusive as to cost.
41. USE
41.01 Tenant
covenants that Tenant shall use and occupy the Demised Premises for the conduct
of Tenant's business, which is executive, general and administrative offices and
for no other purpose whatsoever. Tenant shall not make nor permit to
be made any use of the Premises which would violate the terms of this Agreement,
cause an excessive density of traffic or unreasonably interfere with or cause
excessive demands on any of the Building's services or which, directly or
indirectly, is forbidden by statute, ordinance or government regulations, or
which may invalidate or increase the premium of any policy of insurance carried
on the Building. Further, Tenant shall not suffer or permit the Premises to be
used in any manner or permit anything to be brought into or kept in the Premises
which in the sole reasonable judgment of the Landlord, shall in any way impair
or tend to impair the character, reputation or appearance of the
Building.
41.02 Tenant
shall not bring or permit to be brought or kept in or on the Demised Premises,
any inflammable, combustible, explosive or hazardous fluid, material, chemical
or substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the Demised
Premises other than commonly used office supplies and chemicals such as, without
limitation, cleansers, general purpose cleaners, markerboard surface cleaner,
office machine developer, toner, fuser, fuser oil and printer cartridges,
alcohol cleaning swaps and wipes, liquid paper and rubber cement, all of which
shall be used, stored, handled and disposed of in accordance with applicable
environmental laws, rules and regulations. "Hazardous Materials" shall mean any
and all hazardous or toxic materials, substances, pollutants, contaminants and
wastes and all elements and compounds, including but not limited to, radioactive
substance, polychlorinated biphenyls, methane, volatile hydrocarbons, industrial
solvents, ambient air and water, or any other material or substance which may
cause or constitute a health, safety or other environmental hazard subject to
any Environmental Law.
41.03 Tenant
acknowledges and agrees that Tenant's failure to comply with the foregoing
covenants shall constitute a breach of the Lease and Landlord shall be entitled
to exercise any and all of its rights and remedies under the Lease to cure such
default, including but not limited to, reducing the number of Permitted Invitees
and the default shall be considered in the same manner, as a default under the
Lease and Landlord shall be entitled to terminate the Lease consistent with the
provisions governing defaults.
42. UTILITIES
42.01 Landlord
shall provide at Landlord’s expense, water for ordinary lavatory, sprinkler and
kitchen purposes. Tenant shall pay all charges for gas, heating of water and
other utilities only in the event that it is used in the Demised
Premises.
43. TENANT'S
INSTALLATIONS
43.01 Notwithstanding
anything hereinbefore contained to the contrary, provided Tenant complies with
all of the laws, orders, rules and regulations of the governmental authorities
and the Fire Insurance Rating Organization having jurisdiction thereof and the
local Board of Fire Underwriters, or any other similar body, Tenant shall have
the right, at its own cost and expense, to install such machinery, equipment and
fixtures as may be required for the proper conduct of Tenant's business, except
that Landlord's prior consent shall be required for any installation requiring
structural alteration or changes to the Demised Premises. Subject to
the provisions of this Article, any and all moveable machinery, equipment, and
fixtures installed by tenant (sometimes herein referred to as "Tenant's
Property") shall remain personal notwithstanding the fact that it may be affixed
or attached to the realty, and shall, during the term of this Lease, or any
extension or renewal thereof, Tenant shall deliver the Demised
Premises to Landlord in the same condition as upon the commencement of the term
hereof, reasonable wear and tear excepted. Prior to the
expiration of the term, or sooner termination thereof, Tenant shall, at its own
cost and expense, remove from the Demised Premises all of Tenant's personal
Property and Tenant shall repair any damage to the Demised Premises resulting
from such removal. Tenant shall ascertain from Landlord at the time the Tenant’s
plans are approved by Landlord, whether Landlord desires to have any
non-moveable fixtures, machinery and/or equipment permanently installed by
Tenant removed from the Demised Premises prior to the expiration of such term or
the sooner termination thereof and, if Landlord shall so desire, Tenant shall,
prior the end of the term hereof, remove such indicated items and restore the
Demised Premises with respect thereto, to the same condition as upon the
commencement of the term hereof, reasonable wear and tear excepted.
..Notwithstanding anything herein to the contrary, Landlord shall remove any
non-moveable fixtures, machinery and/or equipment permanently installed by
Tenant in the Demised Premises, at Landlord’s sole cost and expense. All fixtures, machinery
and equipment installed by Tenant, in the Demised Premises and become the
property of Landlord, remaining within the Demised Premises after the expiration
of such term or sooner termination thereof and after Tenant is no longer in
possession of the Demised Premises shall, at Landlord's option, either (i)
become the property of Landlord, free of any claim by Tenant or any person
claiming through Tenant, or (ii) be removed and disposed of by Landlord, at
Tenant's cost and expense, without further notice to or demand upon
Tenant. Machinery, fixtures, chattels, or equipment, if any,
furnished or installed by Tenant, the cost of which is to be borne by Landlord,
shall become the property of Landlord upon payment, therefor by Landlord or
reimbursement of Tenant by Landlord, as the case may be, and shall not be
removed by Tenant. Tenant's obligations under this Article
shall survive the expiration or sooner termination of the term
hereof.
44. INDEMNITY-LIABILITY
INSURANCE
44.01 Tenant
agrees to indemnify and save Landlord harmless against and from any and all
claims by or on behalf of any person or persons, firm or firms, corporation or
corporations, arising from any work or thing whatsoever done by or on behalf of
Tenant, in or about the Demised Premises, unless caused by any act or
negligence of Landlord, its agents, employees, licensees, contractors or
servants and will further indemnify and save Landlord harmless against and from
any and all claims arising from any breach or default on the part of Tenant in
the performance of any covenant or agreement on the part of Tenant to be
performed, pursuant to the terms of this Lease, or arising from any act or
negligence of Tenant, or any of its agents, contractors, servants, employees or
licensees, and from and against all costs, reasonable counsel fees, expenses and
liabilities incurred in or about any such claim or action or proceeding brought
thereon; and in case any action or proceeding be brought against Landlord by
reason of any such claim, Tenant, upon notice from Landlord covenants to resist
or defend, at Tenant's expense, such action or proceeding by counsel reasonably
satisfactory to Landlord.
44.02 Tenant
covenants to provide on or before the commencement date of the term hereof and
to keep in force during the term hereof for the benefit of Landlord and Tenant a
comprehensive policy of liability insurance protecting Landlord and Tenant
against any liability whatsoever occasioned by accident on or about the Demised
Premises or any appurtenances thereto. Such policy is to be written
by good and solvent insurance companies satisfactory to Landlord, and the limits
of liability thereunder shall not be less than the amount of One Million Five
Hundred Thousand Dollars ($1,500,000) per occurrence for bodily or personal
injury including death and in the amount of Five Hundred Thousand ($500,000)
Dollars in respect of property damage. Such insurance may be carried
under a blanket policy covering the Demised Premises and other locations of
Tenant, if any. All insurance maintained by Tenant pursuant to this paragraph
shall name: 38th And
8th LLC,
New 520 GSH LLC, New 520 Triple Crown, LLC and New 520 Eighth LLC. as Landlord
and Newmark & Company Real Estate, Inc., as Agent, as certificate holders
and additional insureds and shall be paid fully by Tenant when obtained. Prior
to the time such insurance is first required to be carried by Tenant and
thereafter, at least fifteen (15) days prior to the expiration of any such
policy, Tenant agrees to deliver to Landlord either a duplicate original of the
aforesaid policy or two (2) separate Accord certificates evidencing such
insurance may not be cancelled except upon ten (10) days' notice to
Landlord. Tenant's failure to provide and keep in force the
aforementioned insurance shall be regarded as a material default hereunder,
entitling Landlord to exercise any or all of the remedies as provided in this
Lease in the event of Tenant's default.
45. TENANT'S
CERTIFICATE
45.01 Tenant
shall, without charge, at any time and from time to time, within ten (10) days
after request by Landlord, certify by written instrument, duly executed,
acknowledged and delivered, to any mortgagee, assignee or any mortgage or
purchaser, or any proposed mortgagee, assignee of any mortgage or purchaser, or
any other person, firm or corporation specified by Landlord:
|
|
(a)
|
that
this Lease is unmodified and in full force and effect (or, if there has
been modification, that the same is in full force and effect as modified
and stating the modifications);
|
|
|
(b)
|
whether
or not there are then existing any set-offs or defenses against the
enforcement of any of the agreements, terms, covenants or conditions
hereof upon the part of Tenant to be performed or complied with (and, if
so, specifying the same); and
|
|
|
(c)
|
the
dates, if any, to which the rental and other charges hereunder have been
paid in advance.
|
46. MODIFICATION FOR
MORTGAGES
46.01 If,
in connection with obtaining financing or refinancing for the Building of which
the Demised Premises form a part, a banking, insurance or other institution
lender shall request reasonable modifications to this Lease as a condition to
such financing or refinancing, Tenant will not unreasonably withhold, delay or
defer its consent thereto, provided that such modifications do not increase the
obligations nor diminish any rights of Tenant hereunder (except, perhaps, to the
extent that Tenant may be required to give notices of any defaults by Landlord
to such lender and/or permit the curing of such defaults by such lender together
with the granting of such additional time for such curing as may be required for
such lender to get possession of said Building) or materially adversely affect
the leasehold interest hereby created. In no event shall a
requirement that the consent of any such lender be given for any modification,
termination or surrender of this Lease be deemed to materially adversely affect
the leasehold interest hereby created.
47. BROKER
47.01 Tenant
and Landlord each represents and warrants to the other that it has dealt with no
broker except Newmark & Co. Real Estate, Inc. (“Broker") in connection with
the execution of this Lease or the showing of the Demised Premises and the
breaching party agrees to hold and save the non-breaching party harmless from
and against any and all liabilities from any claims of any other broker
(including, without imitation, the cost of reasonable counsel fees in connection
with the defense of any such claims incurred by reason of a breach by the
indemnifying party of the aforesaid representation and warranty). Landlord
agrees to pay the Broker a commission pursuant to a separate
agreement. The provisions of this Article shall survive the
expiration or earlier termination of this Lease.
48. "AS-IS"
CONDITION
48.01 Tenant
has examined and inspected the Demised Premises and Tenant agrees to accept said
Demised Premises in their as-is condition existing on the commencement date of
the term hereof, subject to the completion of Landlord’s Work as provided
hereunder.
49. EXCULPATORY
CLAUSE
490.01 If
the Landlord or any successor in interest be an individual, joint venture,
tenancy in common, co-partnership, unincorporated association, or other
unincorporated aggregate of individuals or a corporation (all of which is
referred to below, individually and collectively, as a "landlord entity") then,
anything elsewhere to the contrary notwithstanding, Tenant shall look solely to
the estate and property of such landlord entity in the land and Building of
which the Demised Premises are a part, for the satisfaction of Tenant's remedies
for the collection of a judgement (or other judicial process) requiring the
payment of money by Landlord in the event of any default or breach by Landlord
with respect to any of the terms, covenants and conditions of the Lease to be
observed and/or performed by Landlord, and no other property or assets of such
Landlord entity shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies.
50. AIR
CONDITIONING
50.01 Tenant
shall be permitted the use of and to operate the air conditioning equipment
serving the Demised Premises (the "Air Conditioning Unit"), which Landlord
agrees to deliver to Tenant in working order. Tenant acknowledges and agrees
that the Air Conditioning Unit is Landlord's property; however, Tenant shall
nevertheless, keep, maintain, and repair, restore and replace the ducts,
dampers, registers, grilles and appurtenances utilized in connection therewith;
and, in addition, Tenant shall at all times during the term hereof contract for
and maintain regular service of said Air Conditioning Unit and related equipment
with a recognized maintenance company and shall forward to Landlord duplicate
executed original copies of such contract and all renewals and modifications
thereof. Notwithstanding the foregoing provisions of this Section 50.01, unless
the same shall arise from the negligent or willful act or omission of Tenant,
its agents or employees, Landlord shall, at Landlord's sole cost and expense, be
responsible for the repair, maintenance, replacement and restoration of the
compressor of the Air Conditioning Unit. Tenant shall keep said contract in full
force and effect during the term of this Lease. If Tenant fails to
make such repairs, restoration or replacements to, and maintain, such Air
Conditioning Unit and related equipment; or if Tenant fails to obtain or keep
the aforesaid service contract in force and effect, the same may be made,
performed, obtained or maintained by Landlord at the expense of Tenant and such
expense shall be collectible as additional rent and shall be paid by Tenant
within 15 days after rendition of a xxxx therefor. Any restoration or
replacements of all or any part of the Air Conditioning Unit and related
equipment shall be in quality and class equal to the original work of
installations. Tenant shall comply with all of the laws, orders,
rules and regulations including payments of all fees, permits and
authorizations of all governmental authorities having jurisdiction
thereof, including the City of New York Fire Bureau of Fire
Prevention, local board of fire underwriters or any similar body at Tenant's
sole cost and expense.
50.02 Use
of the Demised Premises, or any part thereof, in a manner exceeding the design
conditions thereof (including occupancy and connected electrical load) for
heating and air conditioning service in the Demised Premises, or rearrangement
of partitioning which interferes with normal heating and air conditioning
service in the Demised Premises, or the use of computer or data processing
machines, may require changes in the systems servicing the Demised
Premises. Such changes, so occasioned, shall be made by Landlord, at
Tenant's expense. Tenant agrees to lower and keep closed the venetian
blinds or other window coverings in the Demised Premises, whenever required, for
the proper operation of the air conditioning service. No supplemental
heating, ventilating or air conditioning equipment shall be installed or
utilized by Tenant in the Demised Premises without Landlord's prior consent,
which consent shall not be
unreasonably withheld or delayed.
50.03 Landlord
reserves the right to interrupt, curtail or suspend the services required to be
furnished by Landlord under this Article when the necessity therefor arises by
reason of accident, emergency, mechanical breakdown or when required by any law,
order or regulation of any Federal, State, County or Municipal authority or for
any other cause beyond the reasonable control of Landlord. Landlord
shall use due diligence to complete all required repairs or other necessary work
as quickly as possible so that Tenant's inconvenience resulting therefrom may be
for as short a period of time as circumstances will permit, except that nothing
shall be construed so as to require Landlord to employ overtime
help. In the event
there is an interruption or suspension of such services for more than
ten
(10) business days after written notice thereof is provided to Landlord and due
to such failure of services Tenant is unable to reasonably conduct its business
in the Demised Premises and Tenant vacates the Demised Premises, then beginning
after such ten (10) day period, Tenant’s obligation to pay Fixed Annual Rent and
Additional Rent hereunder shall xxxxx until such failure is cured, provided such
failure of services is not as result of the negligence or willful misconduct of
the Tenant, its agents, servants, employees, contractors or
subcontractors. However, there shall be no rent abatement in the
event of any force of nature (including but not limited to, a tornado, flooding,
hurricane or earthquake) or any other event beyond the reasonable control of
Landlord (including but not limited to war, terrorism, black outs or strike) it
being agreed that financial inability to perform shall not be deemed an event
beyond the reasonable control of Landlord. Essential services
as used herein shall mean access, electricity, HVAC, water and all elevator
service.
50.04 Notwithstanding
anything to the contrary aforesaid, Tenant agrees that it shall pay, as
additional rent the cost of the electric current used in the operation of such
equipment, which electrical current shall be measured and paid pursuant to the
terms of Article 37 hereof.
51. ASSIGNMENT AND
SUBLETTING
A. Notwithstanding
anything to the contrary contained in Article 11 of this Lease, Tenant may not
sublet all or a portion of the Demised Premises without Landlord's prior written
consent, which consent shall not be unreasonably withheld,
provided:
(i) There shall not be more
than two (2) subtenants at any one time;
|
|
(ii)
|
A
copy of any proposed sublease shall be submitted to Landlord at least
twenty (20) days prior to effective date
thereof;
|
|
|
(iii)
|
The
sublease must provide that the same is subject and subordinate to all of
the terms and conditions of this
Lease;
|
|
|
(iv)
|
The
subtenant is a reputable party of reasonable financial worth considering
the responsibilities involved and Tenant shall have provided Landlord with
reasonable proof thereof;
|
|
|
(v)
|
No
subletting shall relieve tenant of its obligations or liabilities
hereunder, or deemed consent to a further
subletting;
|
|
|
(vi)
|
Tenant
shall not then be in default under any of the terms, covenants,
provisions, agreements or conditions of this
Lease;
|
|
|
(vii)
|
The
proposed subtenant shall not be a then existing tenant or occupant of the
building of which the Demised Premises are a part;
and
|
|
|
(viii)
|
Tenant shall pay as additional
rent the reasonable cost of Landlord's attorney's fees in connection with
each subletting in an amount not to exceed $500.00 per
transaction.
|
|
|
.
|
B. Anything
to the contrary contained in Article 11 herein notwithstanding, Tenant may not
assign its interest in this Lease without Landlord's prior written consent,
which consent shall not be unreasonably withheld, provided:
|
|
(i)
|
A
true copy of such assignment shall be submitted to Landlord at least
twenty (20) days prior to the execution and delivery thereof; under any of
the terms, covenants, provisions, agreements and conditions or this
Lease;
|
|
|
(ii)
|
Such
assignee shall execute, acknowledge and deliver to Landlord, prior to the
effective date of the proposed Assignment an agreement in form and
substance reasonably satisfactory to Landlord whereby such assignee shall
agree to be bound by and upon all of the covenants, agreements, terms,
provisions and conditions set forth in this lease on the part of the
Tenant to be performed;
|
|
|
(iii)
|
The
assignee is a reputable party of reasonable financial worth considering
the responsibilities involved and Tenant shall have provided Landlord with
reasonable proof thereof;
|
|
|
(iv)
|
The
assignee shall not be a then existing tenant or occupant of the Building
of which the Demised Premises are a
part.
|
C. Anything
to the contrary hereinbefore contained notwithstanding, should Tenant desire to
sublet or assign more than fifty (50%) percent of the Demised Premises, it shall
give written notice (which notice shall specify the area proposed to be sublet
and the effective date of such subletting or assignment) of its intention to do
so to Landlord sixty (60) days or more, before the effective date of such
proposed subletting, or assignment, and Landlord may, at any time within thirty
(30) days after receipt of such notice from Tenant, cancel this Lease by giving
Tenant written notice of its intention to do so, in which event such
cancellation shall become effective on the effective date of such proposed
subletting or assignment, with the same force and effect as if said cancellation
date were the date originally set forth as the expiration date of the term of
this Lease, provided that Tenant may rescind such termination by withdrawing its
request to assign or sublet within fifteen (15) days after Landlord has
exercised such cancellation right.
D. It
is expressly understood and agreed that there shall be no further subletting or
assignment unless the same are in strict compliance with Article 11 or this
Article 51.
E. Tenant
shall have the right to sublet the premises without the use of a licensed real
estate broker.
F. In
the event of any subletting or assignment pursuant to the provisions of this
Article, Landlord shall have the right, upon five (5) days' prior written notice
to Tenant, to require Tenant thereafter to pay to Landlord a sum equal to 50%
of (i) any rent or other consideration paid to Tenant by any
subtenant or assignee which is in excess of the rent then being paid by Tenant
to Landlord pursuant to the terms hereof, and 50% of (ii) any other profit or
gain realized by Tenant from any such subletting or assignment, less reasonable
legal fees, brokerage commission, free rent and improvement costs
incurred by Tenant in connection with such
transaction. All sums payable hereunder by Tenant shall
be paid to Landlord as additional rent immediately upon receipt thereof by
Tenant.
G. Notwithstanding
anything to the contrary contained in Article 11 or this Article 51, Tenant
shall have the privilege, without the consent of Landlord, to assign its
interest in this Lease (i) to any entity which is a successor to Tenant either
by merger or consolidation, (ii) to a purchaser of all or substantially all of
Tenant's assets or its outstanding Capital Stock, or (iii) other entity (an
"Affiliate")
which shall (1) control, (2) be under the control of, (3) be under
common control with Tenant to its Parent Company. Tenant may also sublease all
or any portion of the Demised Premises to any entity described above in clauses
(1), (2) and (3), without the consent of Landlord. Any assignment or
subletting pursuant to the previous sentences of this Section G is subject to
the satisfaction of the conditions that, (a) any such assignee or subtenant
shall continue to use the Demised Premises for the conduct of the same business
as Tenant was conducting prior to such assignment or subtenancy, and (b)
provided, Tenant, remains obligated for the performance and observance of the
covenants and conditions of this Lease through the term of the
Lease. Tenant shall, within ten (10) business days after execution
thereof, deliver to Landlord (a) a duplicate original instrument of assignment
in form and substance reasonably satisfactory to Landlord, duly executed by
Tenant, and (b) an instrument in form and substance reasonably satisfactory to
Landlord, duly executed by the assignee, in which such assignee shall assume
observance and performance of, and agree to be personally bound by, all of the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed. The transfer of shares of Tenant (if Tenant is a
corporation or trust) for purposes of this Section E shall not include the sale
of shares by persons other than those deemed "insiders" within the meaning of
the Securities Exchange Act of 1934, as amended, which sale is effected through
the "over-the-counter market" or through any recognized stock
exchange. A transfer of stock among current stockholders of Tenant or
a transfer of stock amount the current stockholders of Tenant and their
immediate families (i.e. spouses, parents, brothers, sisters, children,
grandchildren, or any spouse of any such parent, brother, sister, child or
grandchildren) or a transfer of stock by will or devise or to a trust for their
benefit shall not constitute an assignment for the purposes of this Lease. The
Transfers recited in this Section G shall be referred to as “Permitted
Transfers” and the Landlord shall waive the fees recited in Section A (viii)
above.
52. ATTORNMENT
52.01 Tenant
agrees that if by reason of default on the part of Landlord herein, under any
ground or underlying lease or any leasehold mortgage affecting Landlord's
interest (as ground lessee), a ground or underlying lessor or a leasehold
mortgagee shall enter into and become possessed of the real property of which
the Demised Premises form a part, or any part or parts of such real property,
either through possession or foreclosure action or proceedings, or through the
issuance and delivery of a new lease of the Premises covered by the ground or
underlying lease to said leasehold mortgagee, then, if this Lease is in full
force and effect at such time, Tenant shall attorn to such lessor or such
leasehold mortgagee, as its Landlord; and in such event, such lessor or
leasehold mortgagee shall not be liable to Tenant for any defaults theretofore
committed by Landlord and no such default shall give rise to any rights of
offset or deduction against the rents payable under this Lease.
52.02 The provisions for attornment
hereinbefore set forth shall not require the execution of any further
instrument. However, if any such lessor or mortgagee to which Tenant
agrees to attorn, as aforesaid, reasonably requests a further instrument
expressing such attornment, Tenant agrees to execute the same promptly and if
Tenant fails to so, same shall be deemed a default
hereunder.
53. SAVING
PROVISION
53.01 If
any provision of this Lease, or its application to any situation shall be
invalid and unenforceable to any extent, the remainder of this Lease, or the
application thereof to situations other than that as to which it is invalid, or
unenforceable, shall not be affected thereby, and every provision of this Lease
shall be valid and enforceable to the fullest extent permitted by
law.
54. LEASE NOT BINDING UNLESS
EXECUTED
54.01 Submission
by Landlord of the within Lease for execution by Tenant, shall confer no rights
nor impose any obligations on either party unless and until both Landlord and
Tenant shall have executed this Lease and duplicate originals thereof shall have
been delivered to the respective parties.
55. LATE PAYMENT
CLAUSE
55.01 It
is agreed that the rental under this Lease is due and payable in equal monthly
installments in advance on the first day of each month during the entire lease
term. In the event that any monthly installment of rent, or any other
payment required to be made by the Tenant under this Lease shall be ten (10)
days overdue, a late charge of .05 dollars per every one dollar owed may be
charged by the Landlord for each month, or fraction of each month, from its due
date until paid, for the purpose of defraying the expenses incurred in handling
delinquent payments.
56. ENTIRE
AGREEMENT
56.01 No
earlier statement or prior written matter shall have any force or
effect. Tenant agrees that it is not relying on any representations
or agreements other than those contained in this Lease. This
agreement shall not be modified or cancelled except by writing subscribed by all
the parties.
57.
WINDOW
CLEANING
57.01 Tenant,
at its expense, and in a manner satisfactory to Landlord, shall cause the
Demised Premises, including the exterior and interior of the windows thereof, to
be kept clean. Tenant shall utilize for such cleaning only persons or
contractors approved by Landlord (at Landlord's sole reasonable
discretion).
57.02 Tenant
shall regularly and in no event less frequently than once every twenty-six (26)
weeks clean the interior and exterior of the windows surrounding the Demised
Premises. Such cleaning shall be performed in conformity with the
requirements of the Labor Law of the State of New York.
58. SORTING AND SEPARATION OF
REFUSE AND TRASH
58.01 Tenant
shall, at Tenant's expense, remove all Tenants’ rubbish and trash to such area
of the building and at such time as Landlord shall designate, at Tenant’s sole
cost and expense. Tenant covenants and agrees, at its sole cost and expense, to
comply with all present and future laws, orders and regulations of all state,
federal, municipal and local governments, departments, commissions and board
regarding the collection, sorting, separation and recycling of waste products,
garbage, refuse and trash. Tenant shall sort and separate such waste products,
garbage, refuse and trash into such categories as provided by law. Each
separately sorted category of waste products, garbage and trash shall be placed
in separate receptacles reasonably approved by Landlord. Such separate
receptacles may at Landlord's option, be removed from the Demised Premises in
accordance with a collection schedule prescribed by law. Landlord reserves the
right to refuse to collect or accept from Tenant any waste products, garbage,
refuse or trash, which is, not separate and sorted as required by law and to
require Tenant to arrange for such collection, at Tenant's sole cost and expense
utilizing a contractor approved by Landlord. Tenant shall pay all costs,
expenses, fines, penalties or damages which may be imposed on Landlord or Tenant
by reason of Tenant's failure to comply with the provisions of this Article,
and, at Tenant's sole cost and expense, shall indemnify, defend and hold
Landlord harmless, including legal fees and expenses) from and against any
actions, claims suits arising from such non-compliance, utilizing counsel
reasonably satisfactory to Landlord.
59. OFFICE
MAINTENANCE
59.01 Tenant,
at its sole cost and expense, shall provide for all waxing, polishing, cleaning,
lamp replacement and maintenance work in the Demised Premises. Tenant shall not
employ any contractor without Landlord's prior written consent, which shall not
be unreasonably withheld or delayed.
60. HOLDING
OVER
60.01
If tenant holds over in possession after the expiration or sooner termination of
the original term or of any extended term of this lease, such holding over shall
not be deemed to extend the term or renew the lease, but such holding over
thereafter shall continue upon the covenants and conditions herein set forth
except that the charge for use and occupancy of such holding over for each
calendar month or part thereof (even if such part shall be a small fraction of a
calendar month) shall be the sum of:
|
|
(a)
|
1/12
of the highest annual rent rate set forth on page one of this lease, times
1.5, plus
|
|
|
(b)
|
1/12
of the net increase, if any, in annual fixed rental due solely to
increases in the cost of the value of electric service furnished to the
premises in effect on the last day of the term of the lease,
plus
|
|
|
(c)
|
1/12
of all other items of annual additional rental, which annual additional
rental would have been payable pursuant to this lease had this lease not
expired, plus
|
|
|
(d)
|
those
other items of additional rent (not annual additional rent) which would
have been payable monthly pursuant to this lease, had this lease not
expired, which total sum tenant agrees to pay to landlord promptly upon
demand, in full, without set-off or deduction. Neither the
billing nor the collection of any money for use and occupancy in the above
amount shall be deemed a waiver of any right of Landlord to collect
damages for Tenant's failure to vacate the Demised Premises after the
expiration or sooner termination of this lease. The aforesaid
provisions of this Article shall survive the expiration or sooner
termination of this lease.
|
61. GOVERNMENTAL
REGULATIONS
61.01 If,
at any time during the term of this lease, Landlord expends any sums for
alterations or improvements to the building which are required to be made
pursuant to any law, ordinance or governmental regulation, or any portion of
such law ordinance or governmental regulation, which becomes effective after the
date hereof, Tenant shall pay to Landlord, as additional rent, the same
percentage of such cost as is set forth in the provision of this lease which
requires Tenant to pay increases in Real Estate Taxes, within ten (10) days
after demand therefor. If, however, the cost of such alteration or
improvement is one which is required to be amortized over a period of time
pursuant to applicable governmental regulations, Tenant shall pay to Landlord,
as additional rent, during each year in which occurs any part of the lease term,
the above-stated percentage of the reasonable annual amortization of the cost of
the alteration or improvement made. For the purposes of this Article,
the cost of any alteration or improvement made shall be deemed to include the
cost of preparing any necessary plans and the fees for filing such.
62. SECURITY
62.01 The
sum of $45,066.68
representing security (referred to as "Security") for the faithful
performance and observance by Tenant of the terms, covenants and conditions of
this lease on the Tenant's part to be observed and performed is due and payable
at the time of the execution and delivery of this lease. In the event
of any default by Tenant in the observance or performance of any of the terms,
covenants or conditions of this lease on the part of the Tenant to be observed
or performed, including, but not limited to, any default in the payment when due
of any monthly installment of the Fixed Rent or of any additional rent at the expiration of applicable notice
and grace periods, Landlord may use or apply all or any part of the
Security for the payment to Landlord for Tenant's account of any sum or sums due
under this lease, without thereby waiving any other rights and remedies of
Landlord with respect to such default. Tenant agrees to replenish all
or any part of the Security so used or applied during the demised
term. After (i) the expiration date or any other date upon which the
demised term shall expire and come to an end and (ii) the full observance and
performance by Tenant of all of the terms, covenants and conditions of this
lease on the Tenant's part to be observed or performed, including but not
limited, the provision of Article 22, Landlord shall return to Tenant the
balance of the Security then held or retained by Landlord. Landlord
agrees that, unless prohibited by law or by the general policies of lending
institutions in New York City, Landlord shall deposit the Security in an
interest bearing savings account with a bank selected by Landlord, in which
event all interest accruing thereon, except for a service charge of (1%)
percent, shall be added to and become part of the Security and shall be retained
by Landlord under the same conditions as the sum originally deposited as
Security. Tenant agrees that Tenant shall not assign or encumber any
part of the security, and no assignment or encumbrance by Tenant of all or any
part of the Security shall be binding upon Landlord, whether made prior to,
during, or after the demised term. Landlord shall not be required to
exhaust its remedies against Tenant or against the Security before having
recourse by Landlord to any form of security held by Landlord and recourse by
the Landlord to any form of security shall not effect any remedies of Landlord
which are provided in this lease or which are available to Landlord in law or
equity. In the event of any sale, assignment or transfer by Landlord
named herein (or any subsequent Landlord) of its interest in the Building as
Landlord or lessee, Landlord (or such subsequent Landlord) shall have the right
to assign or transfer the Security to its grantee, assignee, or transferee and,
in the event of any such assignment or transfer, Landlord named herein (or such
subsequent landlord) shall have no liability to Tenant for the return of the
Security and Tenant shall look solely to the grantee, assignee or transferee for
such return. A lease of the entire building shall be deemed a
transfer within the meaning of the foregoing sentence.
62.02 In
lieu of cash, the Landlord agrees to accept an irrevocable Letter of Credit,
which automatically renews itself annually in the amounts as provided hereunder,
without amendment, is transferable, (if transferred by Landlord, at Landlord’s
sole cost and expense), partial drawings are permitted. The Letter of Credit
shall provide that:
|
|
The
Issuing Bank shall pay to the Landlord or its designee up to the face
amount of Letter of Credit upon presentation of only (a) Letter of Credit
and (b) a certificate executed by an officer of the Landlord stating that
“Tenant is in default of the Lease, between Landlord and Tenant beyond any
applicable grace period, $ [amount to be designated] is due under such
Lease and you are hereby instructed to pay such amount to NEWMARK &
COMPANY REAL ESTATE, INC. AS AGENT FOR: 38TH AND 8TH
LLC, NEW 520 GSH LLC, NEW 520 TRIPLE CROWN, LLC AND NEW 520 EIGHTH LLC.
under the Letter of Credit No. ____, dated _____, 2009, issued by ________
to Landlord, or stating that Tenant has not delivered a renewal or new
Letter of Credit to Landlord in accordance with the requirements of
Section 62 of the Lease, between Landlord and Tenant and you are hereby
directed to pay the entire amount of the Letter of Credit No. _____, dated
_______, 2009, to NEWMARK & COMPANY REAL ESTATE, INC. AS AGENT FOR:
38TH AND 8TH
LLC, NEW 520 GSH LLC, NEW 520 TRIPLE CROWN, LLC AND NEW 520 EIGHTH LLC
under the Letter of Credit No. _____ dated __________, 2009, issued by
[Bank] to Landlord.
|
62.03 If
Tenant is entitled, by the terms and conditions of this Article 62, to receive
interest on the security deposited with Landlord, then, Tenant shall deliver to
Landlord, upon execution of this Lease, a fully completed and executed W-9
form. If Tenant fails to provide same to Landlord, Tenant's security
shall be deposited into a non-interest bearing account until Landlord receives a
W-9.
62.04 In
the event that Landlord applies or retains any portion or all of the cash
security or the proceeds of a letter of credit in lieu of a cash security,
Tenant shall within five (5) days notice from Landlord, restore the amount so
applied or retained so that, at all times, the amount deposited with Landlord
shall be $45,066.68. Failure
to comply with the terms of this provision shall be deemed a material default
under the terms and conditions of this lease.
62.05 Provided
Tenant is not then in default of any of the material terms, covenants,
conditions or provisions of this Lease beyond any applicable grace periods, the
security deposited with the Landlord, shall be reduced to
$33,800.00 on the first day of the fourth (4th)
lease year and if the Security is in the form of cash, Landlord shall remit to
Tenant, $11,266.67 plus any interest accrued thereon, within sixty (60) days
thereof. In the event such security is held in the form of a Letter of Credit,
in lieu of cash, the Letter of Credit shall be reduced accordingly.
62.06 Provided
Tenant is not then in default of any of the material terms, covenants,
conditions or provisions of this Lease beyond any applicable grace periods, the
security deposited with the Landlord, shall be reduced to
$24,265.94 (two (2) months of the then escalated rent) on the first
day of the fifth (5th)
lease year and if the Security is in the form of cash, Landlord shall remit to
Tenant, $9,534.06 plus any interest accrued thereon, within sixty
(60) days thereof. In the event such security is held in the form of a Letter of
Credit, in lieu of cash, the Letter of Credit shall be reduced
accordingly.
63. ADDITIONAL
RENT
63.01 The
term additional rent shall mean all other sums, other than fixed annual rent
payable by Tenant to Landlord, including but not limited to escalations for real
estate tax and charges for electricity. In the event Tenant defaults in the
payment of Additional rent Landlord shall have the same rights and remedies for
a default in the payment of fixed annual rent. Landlord's failure during the
lease term to prepare and deliver any of the tax bills, statements, notices or
xxxx set forth in this lease or Landlord's failure to make a demand shall not in
any way cause Landlord to forfeit or surrender its rights to collect any of the
foregoing items of Additional Rent. Tenant's liability for the amounts due under
this Lease shall survive the expiration or sooner termination of the Lease
term.
64. POSSESSION
DATE
64.01 Tenant
may take possession of the Demised Premises from the Possession Date stated
below subject to all terms, covenants and conditions contained in this
Lease.
64.02 "Possession
Date" as used herein shall mean the date upon which Landlord’s Work is
Substantially Completed.
64.03 “Substantially
Completed" as used herein shall mean that (a) all of Landlord's Work (other than
minor punch list items, such as pencil-lined cracks in spackling and plaster and
missing switch plates, which can be completed within thirty (30) days) has been
completed and that (b) such uncompleted work will not materially interfere with
Tenant's use of the premises for the normal and ordinary operation and occupancy
of the entire Demised Premises by Tenant and for Tenant's business.
64.04 "Term
of Lease" as used herein shall mean the parties hereto agree that the Lease
shall be for a term of ten (10) years, four (4) months commencing on the
Possession Date and terminating ten (10) years, four (4) months from the last
day of the month in which the Possession Date occurs or on any sooner date of
termination in accordance with the terms of this Lease.
65. FIXED ANNUAL
RENT
65.01 The
Fixed Annual Rent under this Lease shall be as follows:
LEASE
YEAR ANNUAL
RENT MONTHLY
RENT
Yr
1 $135,200.00 $11,266.67
Yr
2 $135,200.00 $11,266.67
Yr
3 $138,580.00 $11,548.33
Yr
4 $142,044.50 $11,837.04
Yr
5 $145,595.61 $12,132.97
Yr
6 $149,235.50 $12,436.29
Yr
7 $152,966.39 $12,747.20
Yr
8 $156,790.55 $13,065.88
Yr
9 $160,710.31 $13,392.53
Yr
10 $164,728.07 $13,727.34
Yr
11 $168,846.27 $14,070.52
Fixed
Annual Rent herein is inclusive of the 2.5% annual fixed rent escalation and is
exclusive of electric charges or other items of additional rent.
66. RENT
ABATEMENT
66.01 Notwithstanding
anything to the contrary hereinabove contained, so long as Tenant not then be in
default of its obligations under the Lease, upon the expiration of applicable
notice and grace periods, Tenant shall be permitted to occupy the Demised
Premises for the period commencing on the Possession Date and continuing for a
four (4) month period without being obligated to pay the installment of the
annual rental rate, but subject to all other terms and conditions of this Lease
including, but not limited to, the obligation to pay for any and all electric
current utilized in or furnished to the Demised Premises during such
period.
67. INTENTIONALLY
DELETED
68. TENANT’S
WORK/INSTALLATION
68.01 Other
than the performance of Landlord’s Work, Tenant shall perform all work necessary
or desirable in Tenant’s sole judgment to make the Demised Premises suitable for
Tenant’s use and occupancy at Tenant's own cost and expense (hereinafter called
"Tenant's Work"). Tenant's work to be performed by Tenant in the
Demised Premises shall be subject to the following conditions:
68.02 Tenant
shall comply with all of the laws, orders, rules and regulations of all city
agencies, including but not limited to the Department of Buildings, governmental
authorities, and of the fire insurance rating organization having jurisdiction
thereof, and the local board of fire underwriters, or any similar body, and
Tenant shall have procured and paid for, so far as the same may be required, all
governmental permits, filings and authorizations. Tenant, at Tenant’s
sole cost and expense, agrees to use Landlord’s expeditor for all required
filings, plan review and final sign-offs in order to ensure that proposed
construction plans are in compliance with rules and regulations of the governing
authorities. Landlord agrees to cooperate with Tenant and shall sign
permits or applications for approval if necessary with regard to the above so
long as there is no cost to Landlord or Tenant covers any such out of pocket
third party costs reasonably incurred by Landlord in an amount not to exceed
$500.00. Tenant further acknowledges and agrees that should Tenant not
provide Landlord with the required sign-offs from the Department of Buildings,
city agencies, or any governmental authorities having jurisdiction thereof,
Landlord retains the right to perform same at Tenant’s sole cost and
expense
68.03. Prior
to commencing Tenant's Work, all plans and specifications therefor shall be
submitted to Landlord for Landlord's prior written approval which shall not be
unreasonably withheld or delayed, which do not adversely affect the Building
plumbing, electrical, H V A C and security/fire alarm/communication
systems. Landlord's failure to approve or disapprove Tenant's plans
and specifications within twenty (20) days after Landlord's receipt thereof
shall be deemed Landlord's approval thereof. The approval by Landlord
of any of Tenant's plans and specifications shall not constitute an assumption
of any liability on the part of Landlord for their accuracy or their conformity
with applicable law, and Tenant shall be solely responsible
therefor. Approval by Landlord of any of Tenant's plans and
specifications shall not constitute a waiver by Landlord of the right to
thereafter require Tenant to amend same to correct for Tenant's non-compliance
with applicable laws and omissions or errors adversely affecting the Building
structure or Building systems therein later discovered by
Landlord. If, in connection with determining whether or not to
approve Tenant's plans and specifications Landlord reasonably incurs
out-of-pocket architectural or engineering fees, Tenant shall reimburse Landlord
for such fees, to the extent reasonable, as additional rent within twenty (20)
days of submission of such receipted bills to Tenant
68.04 Tenant's
Work shall be completed (i) with reasonable dispatch, and ii) substantially in
accordance with the plans and specifications submitted to, and approved in
writing by, Landlord pursuant to Paragraph (B) hereof. Landlord reserves the
right from time to time, to inspect work in progress for the purpose of
confirming its substantial conformity with approved plans, specifications and
drawings. Tenant shall complete, or cause to be completed,
Tenant's Work in a good and workmanlike manner, to the extent reasonably
possible, and in substantial compliance with the customary standards employed by
contractors in New York City in buildings of like kind and class.
68.05 Prior
to commencing Tenant's Work, Tenant shall at its own cost and expense deliver to
Landlord a certificate of Tenant's or Tenant’s contractor's
policy of comprehensive general liability insurance which amounts shall be not
less than $1,000,000.00 in respect to any one person, not less than
$2,000,000.00 in respect to any one accident and not less than $500,000.00 in
respect of property damage, including Tenant’s work, covering the risk during
the course of performance of Tenant's Work, which policy shall protect Landlord
and its managing agent in the same amounts against any claims or liability
arising out of Tenant's Work, and Tenant or Tenant's contractors shall obtain
workers' compensation insurance to cover all persons engaged in Tenant's Work
and a certificate thereof shall be furnished to the Landlord before commencement
of any work by any contractor, subcontractor, their agents, servants or
employees. Tenant's contractor shall name Landlord, its managing
agent, mortgagees and ground lessors, if any, as additional insured under said
insurance policies;
68.06 All
of Tenant's Work shall be done in such a manner so as not to materially
interfere with Landlord or other Tenants.
68.07 Prior
to commencing Tenant's Work, Tenant shall deliver to Landlord the name and
address of Tenant's general contractor and sub-contractors who must first be
approved by Landlord, whose approval shall not be unreasonably withheld or
delayed and Landlord will respond
to such information within five (5) days from submission.
68.08
Tenant, at its sole cost and expense, shall be obligated to connect into and
coordinate its security and/or fire alarm systems with those systems existing in
the Building.
68.09 It
is expressly understood and agreed that Landlord shall not be responsible for
any repair, replacement or maintenance of Tenant's Work, unless otherwise
provided in the Lease.
69. RELOCATION
69.01 On
not less than ninety (90) days notice to Tenant, Landlord shall have the one
time right (unless otherwise agreed to by Landlord and Tenant) to move Tenant
out of the space demised and into similar space, with reasonably similar
exposures, of at least equal area to another floor in the same
building. In this event, Landlord shall remove, relocate and
reinstall Tenant's equipment, telephone and computer lines
and furniture, reconstruct the new space similar to the old space,
reimburse Tenant Tenant’s reasonable related expenses (i.e., costs to replace
letterhead and business cards), all of which shall be done at
Landlord's sole cost and expense and without cost to Tenant, and for the balance
of the term this lease shall continue in full force and effect and shall apply
to the new space with the same force and effect as though this lease had
originally been for such new space. Landlord agrees to use reasonable efforts,
not to relocate Tenant any time during the last two (2) years of the lease term.
In order to minimize the disruption to Tenant’s business, Landlord agrees that
such relocation shall be done during non-business hours.
70. LANDLORD’S COST BY TENANT
DEFAULTS:
70.01 In
the event of litigation or dispute between Landlord and Tenant, the
successful party shall reimburse the other party for its reasonable
out-of-pocket costs and expenses including reasonable attorney’s fees; provided
that, if, as a result of Tenant’s failure to pay rent payable hereunder after
notice and expiration of the cure period applicable hereunder, Landlord
commences an action for non payment of such rent, Tenant agrees to reimburse the
reasonable out-of-pocket costs and expenses incurred in such action by
Landlord. Such expenditures paid for by Landlord, shall be deemed to be
Additional Rent hereunder and shall be paid by Tenant to Landlord together with
interest thereon at the rate of ten (10%) percent per annum but not to exceed
the maximum amount then chargeable under applicable law within five (5) days of
rendition of any xxxx or statement to Tenant therefore, and if any expenditure
is incurred in collecting such obligations, such sum shall be recoverable by
Landlord as additional damages.
71. MECHANIC’S
LIENS:
71.01 Notice
is hereby given that the Landlord shall not, under any circumstances, be liable
to pay for any work, labor or services rendered or materials furnished to or for
any work, labor or services rendered or materials furnished to or for the
account of the Tenant upon or in connection with the Demised Premises, and that
no mechanic’s or other liens for work, labor or services rendered or materials
furnished to or for the account of the Tenant shall, under any circumstances,
attach to or affect the reversionary or other estate or interest of the Landlord
in or to the Demised Premises or in and to any alterations, repairs or
improvements to be erected or made thereon.
71.02 The
Tenant shall not suffer nor permit, during the term hereby granted, any
mechanic’s or other liens for work, labor, services or materials rendered or
furnished to or for the account of the Tenant upon or in connection with the
Demised Premises or to any improvement erected or to erected upon the same, or
any portion thereof; and it is understood that Tenant shall obtain and deliver
unconditional written waivers of mechanic’s liens as specifically set forth in
Paragraph 3 of the printed form hereof. Nevertheless, Tenant shall
hold the Landlord and the Demised Premises harmless from all liens or charges,
of whatever nature or description, arising from, or in consequence of, any
alterations or improvements that the Tenant shall make, or cause to be made,
upon the Demised Premises.
71.03 If
a notice of mechanic’s lien be filed against the Demised Premises for labor or
materials alleged to have been furnished, or to be furnished at the Demised
Premises to or for the Lessee or to or for someone claiming under the Lessee;
and if the Lessee shall fail to take such action as shall cause such lien to be
discharged or bonded within thirty (30) days after notice to Tenant of same; the
Lessor may discharge it by deposit or by bonding, proceeding, and in the event
of such deposit or bonding proceedings, the Lessor may require the lienor to
prosecute an appropriate action to enforce the lienor’s claim. In
such case, the Lessor may pay any judgement recovered on such
claim. Any amount paid or expense incurred by the Lessor, as in the
clause provided, and any expense incurred or sum of money paid by the Lessor by
reason of the failure or the Lessee to comply with this provision of this Lease,
or in defending any such action, shall be deemed to be additional rent for the
Demised Premises, and shall be due and payable by the Lessee to the Lessor on
the first day of the next following month or at the option of the Lessor, on the
first day of the succeeding month. The receipt by the Lessor of any
installment of the regular stipulated rent hereunder or any of such additional
rent shall not be a waiver of any other additional rent then due.
71.04
Notwithstanding anything to the contrary, any mechanic’s lien filed against the
Demised Premises for Landlord’s Work or work performed by Landlord during the
Lease term are excluded from the provisions of Article 71 herein.
72. TENANT’S LIABILITY FOR
CONSTRUCTION
72.01 In
the event the Tenant performs any construction or alterations at the Demised
Premises, Landlord shall not be responsible for any structural defect, latent or
otherwise, in the premises, change of conditions elsewhere in the building or in
the premises with respect to the foregoing, directly resulting from or as a
condition of Tenant’s construction or alteration, or for any damages to same or
to goods or things contained or placed in the Demised Premises or in the vicinity
thereof in connection with such alteration or construction.
72.02 Tenant
will indemnify and save Landlord harmless from and against any and all
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses including reasonable attorneys’ fees, which may be imposed upon or
incurred by or asserted against Landlord by reason of any of the following
occurring during the terms of this Lease:
|
(i)
|
any
work or thing done by Tenant or any agent, contractor, employee, licensee
or invitee of Tenant in, on or about the Demised Premises or any part
thereof unless caused by the negligence or willful acts of Landlord, its
agents, employees or contractors or
subcontractors;
|
|
|
(ii)
|
any
use, possession, occupation, condition, operation, maintenance or
management by Tenant of the Demised Premises, unless caused by the
negligence or willful acts of Landlord, its agents, employees, contractors
or subcontractors or which result from any failure by Landlord, its
agents, employees, contractors or subcontractors, to perform a direct
obligation of Landlord pursuant to an express provision
hereunder.
|
|
|
(iii)
all fines, suits, proceedings, claims, demands and actions of any kind or
nature whatsoever brought by anyone whomsoever arising or growing out of
or in any way connected with the Tenant’s use, operation and maintenance
of the Demised Premises; unless caused by
the negligence or willful acts of Landlord, its agents, employees,
contractors or subcontractors or which result from any failure by
Landlord, its agents, employees, contractors or subcontractors, to perform
a direct obligation of Landlord pursuant to an express provision hereunder
and any accident, injury, or damage to any person or property occurring in
the Demised Premises or any part thereof unless caused by the negligence
or willful acts of Landlord, its agents, employees, contractors or
subcontractors.
|
|
73.
|
LANDLORD’S
CONSENT.
|
73.01 Whenever
Landlord’s consent is required hereunder, Landlord agrees that such consent
shall not be unreasonably conditioned, withheld or delayed.
|
74.
|
PATRIOT
ACT
|
74.01 Tenant
hereby certifies that it is in compliance with the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act (the “Patriot
Act”) and the Executive Order 13224 (the “Executive Order”) and, in
particular, Tenant acknowledges that (a) it is prohibited from doing any
business with any persons who commit, threaten to commit, or support terrorism;
(b) Tenant, and its employees, vendors, contractors, Landlords, officers,
directors, representatives, and/or agents are not persons who commit, threaten
to commit, or support terrorism; (c) Tenant has performed, and will
perform during the Term of this Lease, a thorough investigation of those persons
described in Section (b) including checking such persons against the list
annexed to the Executive Order to ascertain whether they are persons who commit,
threaten to commit, or support terrorism; and (d) Tenant shall take commercially
diligent steps to ensure that it shall comply with the Patriot Act and Executive
Order during the Term of this Lease. Tenant shall indemnify and hold
Landlord and its agents harmless from and against any losses arising from a
breach of the foregoing sentence. The indemnification and hold
harmless shall survive the termination of this Lease.
|
75.
|
IDENTIFICATION
CARDS
|
75.01 Landlord
has agreed to furnish tenants with an access control card (“Card”) to the
Building to allow all tenants to access their premises twenty-four hours a day,
seven days a week, or at other times as designated by Landlord, for business
purposes. The Card shall only be issued to employees (“Designated Employees”)
currently working on the 23rd
floor of the Building (the “Demised Premises”) and designated by
“Tenant”. The names of the Designated Employees shall be furnished to
Landlord in writing prior to the distribution of the Cards. Tenant shall
initially be issued twenty-one (21) Cards for all Designated Employees within
the first lease year free of charge. Thereafter, Tenant shall pay a
fee of $25.00 for each new Card requested from Landlord for additional
Designated Employees.
75.02 The
Card shall be used to access the Building for business purposes only. All
Designated Employees shall, prior to receiving a Card, be photographed by
Landlord or its designee at a time and place as designated by Landlord in
accordance with the System. Cards are non-transferable and may not be used by an
individual not employed by Tenant at the Demised Premises, nor shall it be used
by any employee whose name has not been submitted to Landlord as a Designated
Employee. In the event that Tenant no longer occupies the Demised Premises, as a
result of the termination, sublet, assignment, license, sale or other
disposition of the Demised Premises, Tenant shall return all Cards to Landlord
or its designee immediately. Upon the happening of any of the
foregoing events, all Cards will be immediately deactivated from the System.
Tenant shall immediately notify Newmark or Landlord’s designee if a Card is lost
or stolen. Tenant shall pay Landlord $50.00 for the replacement of
any such lost or stolen Card before Landlord will issue a new Card.
|
76.
|
SECURITY DEPOSIT
DEFAULT:
|
76.01 Pursuant
to Articles 34 and 62 of the Lease, the Tenant is required to pay and deliver to
the Landlord a Security Deposit. In the event the Tenant, upon
execution of the Lease by Landlord and Tenant, shall have failed to
simultaneously deposit with or pay to the Landlord the Security in the amount
referred to in the Lease, or if any check delivered to the Landlord for the
Security shall be returned unpaid by the financial institution upon which the
check is drawn, (i) if Tenant is in possession of the Demised Premises the
Landlord shall have the right upon Landlord delivering to Tenant a three (3) day
written notice advising Tenant of its failure to have deposited Security with
the Landlord, and in the event the Tenant shall within three (3) days from the
date the notice is given to Tenant continue to fail to deposit with Landlord the
Security, then Landlord may serve upon Tenant a one (1) day written notice of
cancellation of this Lease and upon the expiration of such one (1) day, this
Lease and the term provided for therein shall end and expire as fully and
completely as if the expiration of such one (1) day period were the day herein
definitely fixed for the end and expiration of this Lease and the term thereof,
and Tenant shall then quit and surrender the Demised Premised to Landlord and if
Tenant shall fail to quit and surrender the Demised Premises to the Landlord,
Landlord shall have all rights and remedies as otherwise provided for in the
Lease; or (ii) if Tenant shall not have yet taken possession of the
Demised Premises then and in such event the Landlord shall not be required to
deliver possession of the Demised Premises to the Tenant; and (iii) in either
instance Tenant shall remain liable as otherwise provided for in this
Lease.
INSERTS
TO PRINTED FORM OF LEASE BETWEEN
NEWMARK
& COMPANY REAL ESTATE, INC.,
AGENT
FOR 38TH AND
8TH LLC,
NEW 520 GSH LLC, NEW 520 TRIPLE CROWN, LLC AND NEW 520 EIGHTH LLC, (AS
“LANDLORD”)
AND
EMERGING VISION USA, INC., (AS TENANT”) FOR PART OF THE 23rd
FLOOR IN THE BUILDING KNOWN AS AT 000 XXXXXX XXXXXX, XXX XXXX, XXX
XXXX
|
1.
|
,
which consent shall not be unreasonably withheld or
delayed.
|
|
2.
|
,
which approval shall not be unreasonably withheld or
delayed.
|
|
3.
|
Notwithstanding
anything to the contrary herein, Tenant will be permitted to select a
contractor who may not be on Landlord’s list of approved contractors,
subject to approval by Landlord, such approval not to be unreasonably
withheld or delayed.
|
|
4.
|
,
including the roof, foundation and exterior
walls,
|
|
5.
|
or
willful misconduct
|
|
6.
|
Notwithstanding
anything herein to the contrary, if the demised premises are totally
damaged or rendered substantially untenantable by fire or other casualty,
Landlord shall, within thirty (30) days after the date of the fire or
other casualty, deliver a notice to Tenant of (i) the estimated repair
period of the demised premises from such fire or other casualty, and (ii)
whether Landlord intends to repair and restore the demised
premises. If Landlord intends to repair and restore the demised
premises, and if such period exceeds two hundred forty (240) days from the
date of the fire or other casualty, or if Landlord does not intend to
repair and restore the demised premises, then Tenant, within thirty (30)
days after Landlord's notice, may give Landlord notice of termination of
this Lease, in which event the term hereof shall expire ten (10) days
after Tenant's termination notice is given. If this Lease has
not theretofore expired or been terminated, and Landlord does not
substantially complete the repair and restoration of the demised premises
within said two hundred forty (240) day period after the date of the
casualty, Tenant shall give Landlord a ten (10) day notice to
cure. Failure to give notice shall not be deemed a default. If
Landlord shall not complete said repair and restoration within twenty (20)
days after the expiration of such ten (10) day period, Tenant may give
Landlord notice of termination of this Lease, in which event the term
hereof shall expire ten (10) days after Tenant's termination notice is
given.
|
|
7.
|
during
regular office hours,
|
|
8.
|
which
items shall not unreasonably interfere with Tenant’s use of the Demised
Premises and provided further that the Landlord maintains such pipes and
conduits in good repair.
|
|
9.
|
upon
reasonable prior notice to Tenant,
|
|
10.
|
In
the event that in the course of Tenant’s submission of its applications
for permits, one or more of its applications are disapproved due to
uncured building violations noted or issued prior to the term of this
Lease, the Tenant shall immediately notify the Landlord
in writing and it shall be the Landlord’s responsibility to
correct the said violations.
|
|
11.
|
twenty
(20)
|
|
12.
|
and
such default continues for more than three (3) days after written notice
from Landlord to Xxxxxx,
|
|
00.
|
further
|
|
14.
|
Landlord
agrees to use reasonable efforts to relet the Demised Premises to mitigate
its damages, however,
|
|
15.
|
reasonable,
non-discriminatory and uniformly
enforced
|
|
16.
|
Except
as otherwise stated herein,
|
|
17.
|
and
additional rent
|
|
18.
|
Landlord
represents and warrants that, on the Possession Date of the Lease, it
shall have legal possession of the Demised Premises to rightfully deliver
the same to Tenant.
|
|
19.
|
Except
for monetary matters the provisions of Paragraph 27 also apply to
Tenant.
|
|
20.
|
As
a courtesy, a copy of any notice addressed to Tenant as set forth herein
shall be sent to Xxxxx Xxxxxxxx, 000 Xxxxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxx
Xxxx, Xxx Xxxx 00000 and Xxxxxx Xxxxxxx, Esq., 00 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxxxxx 00000. Failure to do so will not
be considered a default under the
Lease.
|
|
21.
|
If
Landlord undertakes to perform certain work hereunder and Tenant
is unable to access the Demised Premises or if Tenant cannot
continue to operate its business
and vacates the Demised Premises and such conditions continue for
more than ten
(10) business days after written notice thereof is provided to Landlord
then beginning after such period, Tenant’s obligation to pay Fixed Annual
Rent and Additional Rent hereunder shall xxxxx until such conditions are
cured. However, there shall be no rent abatement in the event
such required work is due to any force of nature (including but not
limited to, a tornado, flooding, hurricane or earthquake) or any other
event beyond the reasonable control of Landlord (including but not limited
to war, terrorism, black outs or strike) it being agreed that financial
inability to perform shall not be deemed an event beyond the reasonable
control of Landlord or in the event such work to be performed by Landlord
is due to the negligence or will misconduct of Tenant, its agents, servants, employees,
contractors or subcontractors. Essential
services as used herein shall mean access, electricity, HVAC, water and
all elevator service.
|
|
|
21(a). Landlord
agrees that the Premises will be accessible twenty-four (24) hours a day,
seven (7) days a week. Tenant shall have the ability to use the
freight elevator during normal business hours for Tenant’s construction
period and move-in at no additional charge to Tenant. After normal
business hours, Tenant must call lobby desk for access to freight
elevators. Use of the freight elevator for normal freight
use will be at the standard rate, prior notice
required.
|
|
22.
|
thirty
(30)
|
|
23.
|
is
not in default, at the expiration of applicable notice and grace
periods,
|
