EXHIBIT 6.9
STANDARD FORM OF OFFICE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
AGREEMENT OF LEASE, made as of this 14th day of October 1999, between
RENAISSANCE 000 XXXXXXXX LLC, 000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
PARTY OF THE FIRST PART, HEREINAFTER REFERRED TO AS OWNER, AND XXXXXXXX.XXX,
INC., c/o Xxxx Xxxxxxxx, 00 Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
WITNESSETH
----------
Owner hereby leases to Tenant and Tenant hereby hires from Owner SUITE 301 in
the building known as 000 Xxxxxxxx in the Borough of Manhattan, City of New
York, for the term of three (3) years (or until such term shall sooner cease and
expire as hereinafter provided) to commence on the 1st day of November nineteen
hundred and ninety-nine, and to end on the 31st day of October two thousand and
two both dates inclusive, at an annual rental rate of
SEE PARAGRAPH 36A OF THE ANNEXED RIDER
which Tenant agrees to pay in lawful money of the 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 set off or deduction whatsoever, except that Tenant shall
pay the first _______ monthly installment(s) on the execution hereof (unless
this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
1. RENT. Tenant shall pay the rent as above and as hereinafter provided.
2. OCCUPANCY. Tenant shall use and occupy demised premises for
SEE PARAGRAPH 52 OF THE ANNEXED RIDER
3. TENANT ALTERATIONS. Tenant shall make no structural changes in or to
the demised premises of any nature without Owner's prior written consent.
Subject to the prior written consent of Owner, and to the 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. Tenant shall, before making any alterations, additions,
installations or improvements, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof
III-4
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 xxxxxxx'x compensation, 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 filing the bond required by law. All fixtures and all paneling,
partitions, railings and like installations, installed in the premises at any
time, either by Tenant or by Owner in Tenant's behalf, shall, upon installation,
become the property of Owner and shall remain upon and be surrendered with the
demised premises unless Owner, by notice to Tenant no later than twenty days
prior to the date fixed 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 from the 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 any such from the premises or upon
removal of other installations as may be required by Owner, Tenant shall
immediately and at its expense, repair and restore the premises to the condition
existing prior to installation 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 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 premises by
Owner, at Tenant's expense.
4. MAINTENANCE AND REPAIRS. 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 for all damage or 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.
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
its demised premises, 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 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 y 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.
5. WINDOW CLEANING. 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
III-5
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.
6. REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS. 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 Service
Office, or any similar body which shall impose any violation, order or duty upon
Owner or Tenant with respect to the demised 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 premises or the building (including the use permitted under the lease).
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 quantity so as not to increase the rate for fire
insurance applicable to the building, nor use the premises in a manner which
will increase the insurance rate for the building or any property 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 the 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 demised premises issued by the New York
Fire Insurance Exchange, or other body making fire insurance rates applicable to
said premises exceeding the floor load per square foot area which is 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 judgement, to absorb and
prevent vibration, noise and annoyance.
7. SUBORDINATION. 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 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
III-6
lease or the real property of which the demised premises are a part. In
confirmation of such subordination, Tenant shall execute promptly any
certificate that Owner may request.
8. PROPERTY - LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY. 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 theft or otherwise, nor for any injury or damage to persons or
property resulting from any cause of whatsoever nature, unless caused by or due
to the negligence 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 or 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
thereof 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 attorney's 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 sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. 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.
9. DESTRUCTION, FIRE AND OTHER CASUALTY. (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 forth.
(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, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly
unusable by fore or other casualty, then the rent shall be proportionately paid
up to the time of the casualty and thenceforth shall cease until the date when
the premises shall have been repaired and restored by Owner, 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 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 90 days after such fire or casualty, specifying a date for
the expiration of the lease, which date shall not be more than 60 days after the
giving of such notice, and upon the date specified in such notice the tern 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 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
III-7
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 premises as promptly as reasonable possible, all of Tenant's salvageable
inventory and movable equipment, furniture, and other property. Tenant's
liability for rent shall resume five (5) day after written notice from Owner
that the premises are substantially ready for Tenant's occupancy.
(e) Nothing contained herein above shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, 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 against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. 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 payment of additional premiums, then the party
benefitting 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 provision 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.
10. EMINENT DOMAIN. 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 has a right to make a
separate claim based on its own interest.
11. ASSIGNMENT, MORTGAGE, ETC. 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 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, under-tenant 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 wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
12. ELECTRIC CURRENT. 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
III-8
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 wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
13. ACCESS TO PREMISES. 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, to examine the same and to make such
repairs, replacements and improvements as Owner may deem necessary and
reasonable 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 and condults in and through the demised premises
and to erect new pipes and condults therein provided they are concealed within
the walls, floor, or ceiling. 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 or 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 for the purpose of showing the same to prospective purchasers or mortgages
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 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 therefor, 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.
14. VAULT, VAULT SPACE, AREA. [Deleted]
15. OCCUPANCY. 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 a part. Tenant has inspected the 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 premises and Tenant agrees to accept the same subject to violations, whether
or not of record.
16. BANKRUPTCY. (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 as the debtor; or (2) the making by
Tenant 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 premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 15 shall be applicable only to the party
then owing 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
III-9
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 premises
or any part thereof be relet 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
reletting shall be deemed to be the fair and reasonable rental value for the
part or the whole of the 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.
17. DEFAULT. (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 Section 235 of the of Title 11 of the U.S. Code
(bankruptcy code); or if Tenant shall fail to take possession of the premises
within fifteen (15) days after the commencement of the term of this lease, then,
in any one or more of such events, upon Owner serving a written twenty (20) days
notice upon Tenant specifying the nature of said default and upon the expiration
of said twenty (20) 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 twenty
(20) day period, and if Tenant shall not have diligently commended curing such
default within such twenty (20) 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 three (3) days' notice of cancellation of this
lease upon Tenant, and upon the expiration of said three (3) days of this lease
and the term thereunder shall end and expire as fully and completely as if the
expiration of such three (3) 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;
then and in any of such events Owner may without notice, 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 demised premises and remove their effects and hold the 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.
18. REMEDIES OF OWNER AND WAIVER OF REDEMPTION. 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 premises
or any part or parts thereof, either in the name of the 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
Owner as liquidated damages for the failure of Tenant to observe and perform
said Tenant's covenants herein contained, and deficiency
III-10
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 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, attorneys' 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 judgement, 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. 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 received 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 or 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 demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or others.
19. FEES AND EXPENSES. 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, 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 attorney's fees, in instituting, prosecuting or
defending any 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 five (5) days of
rendition of any xxxx or statement to Tenant therefor. 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.
20. BUILDING ALTERATIONS AND MANAGEMENT. Owner shall have the right at any
time without the same constituting an eviction and without incurring liability
to Tenant therefor 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 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.
III-11
21. NO REPRESENTATIONS BY OWNER. 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 of any other matter or thing affecting or
related to the 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 that 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 an 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.
22. END OF TERM. 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 the preceding business day.
23. QUITE ENJOYMENT. Owner covenants and agrees with Tenant that upon
paying 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.
24. FAILURE TO GIVE POSSESSION. 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 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 wise to extend the term of this lease, but the rent
payable hereunder shall be abated (provided Tenant is not responsible for
Owner's inability to obtain possession) until after Owner shall have given
Tenant written notice that the premises are substantially ready for Tenant's
occupancy. If permission is given to Tenant to enter into the possession of the
demised 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 occupancy shall be deemed to be under all the
terms, covenants, conditions and provides of this lease, except as tot he
covenant to pay rent. 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.
25. NO WAIVER. 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
III-12
violation from having all the force and effect of an original violation. The
receipt by Owner of 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 said 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 or a surrender of the premises.
26. WAIVER OF TRIAL BY JURY. 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 said premises, and any emergency statutory or any other
statutory remedy. It is further mutually agreed that in the event Owner
commences any summary proceeding for possession of the premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding including a counterclaim under Article 4.
27. INABILITY TO PERFORM. 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 wise 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 supplying 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 or fixtures 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 in connection with a National
Emergency 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 of
supply and demand which have been or are affected by xxxx or other emergency.
28. BILLS AND NOTICES. [Deleted]
29. SERVICES PROVIDED BY OWNERS. Owner shall provide: (a) necessary
elevator facilities on business days from 8 a.m. to 6 p.m. and on Saturdays from
8 a.m. to 1 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. and on Saturdays from 8 a.m. to 1 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; (d) cleaning service for the
demised premises on business days at Owner's expense provided that the same are
kept in order by Tenant. If, however, said premises are to be kept clean by
Tenant, it shall be done at Tenant's sole expense, in a manner 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
condition/cooling and ventilating
III-13
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 p.m., and ventilation will be furnished on
business days during the aforesaid hours except when air conditioning/cooling or
ventilation for more extended hours or on Saturdays, Sundays or on holidays, as
defined under Owner's contract with Operating Engineers Local 94-94A, Owner will
furnish the same at Tenant's expense. RIDER to be added in respect to rates and
conditions for additional service; (f) Owner reserves the right to stop services
of the heating, elevators, plumbing, air-conditioning, 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. If the
building of which the demised premises are a part supplies manually-operated
elevator service, Owner at anytime may substitute automatic-control elevator
service and upon ten days' written notice to Tenant, proceed with alterations
necessary therefor without in any wise affecting this lease or the obligation of
Tenant hereunder. The same shall be done with a minimum of inconvenience to
Tenant and Owner shall pursue the alteration with due diligence.
30. CAPTIONS. 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.
31. DEFINITIONS. 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 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 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
(except such portion thereof as is covered by specific hours in Article 29
hereof), Sundays and all days 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.
32. ADJACENT EXCAVATION - SHORING. 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,
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.
33. RULES AND REGULATIONS. 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 or 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 Rule or
Regulation hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
III-14
Regulation 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 Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within ten (10) 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.
34. SECURITY. Tenant has deposited with Owner the sum of $___________ 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 premises, whether
such damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. in the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of the lease, 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 said security, and it is agreed that
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.
35. ESTOPPEL CERTIFICATE. Tenant, at any time, and from time to time, upon
at least 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 there have been modifications, that the same is in full force and effect
(or, if there 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.
36. SUCCESSORS AND ASSIGNS. 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.
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: RENAISSANCE 000 XXXXXXXX LLC
By: /s/ Xxxxxxx Xxxxxx
-------------------------- -----------------------------------
Witness for Tenant: XXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx
-------------------------- -----------------------------------
III-15
RIDER TO LEASE BETWEEN
RENAISSANCE 000 XXXXXXXX LLC
AND
XXXXXXXX.XXX, INC.
DATED: October 14, 1999
36A. The annual base rent during the term of the Lease shall be as set
forth in the following table. In addition, the tenant shall pay a monthly
sprinkler charge of $30.00 and a monthly water and sewer charge of $70.00. Said
sprinkler and water charge may be raised in the event-the rate at which Landlord
is charged for sprinkler and/or water service is raised. Any such raise shall be
equal to the same percentage as Landlord's rate is raised. Landlord shall
provide, at Tenant's request, evidence of such increased changes. The first
month's rent, the first month's sprinkler charge and the security shall be paid
on the signing of this Lease. Landlord represents that the demised premises are
serviced by an operating sprinkler system.
PERIOD MONTHLY ANNUAL BASE RENT
INSTALLMENT
11/01/99-10/31/2000 $8,025.00 $96,300.00
11/01/00-10/31/2001 $8,265.75 $99,189.00
11/01/01-10/31/2002 $8,513.72 $102,164.67
37. At the date of execution of this Lease, the Tenant shall pay to
Landlord, and Landlord acknowledges receipt of the following:
November 1999 base rent .........................................................................$8,025.00
November 1999 water and sewer .......................................................................70.00
November 1999 sprinkler protection .................................................................$30.00
BID tax (11/99-6/2000, 8 months pro-rata @$35.50 month) ...........................................$284.00
Security Deposit* ..............................................................................$35,000.00
------------
TOTAL UPON SIGNING OF LEASE ....................................................................$43,409.00
The security deposit will be held in an interest-bearing "lease security"
account in HSBC Bank USA. Interest is to be paid annually to Tenant on or about
March 30 of each year, less a one (1%) percent administrative fee to be retained
by Landlord. Landlord reserves the right to change the bank in which the deposit
is mentioned and shall notify Tenant of any such change. Landlord shall not be
required to obtain an interest rate above that normally given by the bank for
ordinary lease security accounts.
III-16
RENT: METHOD OF PAYMENT: Landlord will usually deliver a rent xxxx to the
Tenant's premises. This xxxx will usually be delivered before the First (1st) of
each month. The rent is due, in the Landlord's office, on the First (1st) day of
each and every month. On the First (1st) day of each month (or, if that is a
non-business day, on the first business day thereafter), a messenger from the
Landlord will pick up the rent from the Tenant's premises. Tenant agrees to have
the rent ready for the Landlord to pick up before 2:00 p.m. on the First (1st)
day of each and every month. Rent shall be paid in U.S. currency in good funds
in cash or check drawn on a bank with an office in New York City. Failure of the
Landlord to deliver a rent xxxx shall not relieve or extend Tenant's obligation
to pay rent timely.
RENT: LATE PAYMENT: Rent, Additional Rent, or utility charges not received
by the Landlord by 3:00 p.m. on the Seventh (7th) calendar day of each month
shall be deemed in default. In the event the full Rent, Additional Rent, or
utility charges are not received by the owner by the Seventh (7th) calendar day
of each month, the Tenant shall pay a late charge equal to four (4%) percent of
the unpaid amount of Rent, Additional Rent or Utility Charges unpaid by the due
date.
In the event any check given by Tenant to Landlord is dishonored by
Tenant's bank, for any reason, Tenant shall forthwith deliver a certified or
bank check to Landlord in the amount of the dishonored check together with any
applicable late payment charge, plus a charge of Twenty-five Dollars ($25), upon
receipt of which Landlord will return the dishonored check to Tenant.
The charges herein set forth shall be deemed reimbursement to Landlord for
expenses incurred and lost income which may result from such late payments and
not as a penalty. The charges herein shall be in addition to and not in lieu of
any other rights of Landlord granted by this Lease or by law.
37A. In the event this Lease is terminated or possession surrendered
before the expiration date as a result of Tenant's default hereunder, in
addition to all other remedies of Landlord pursuant to this Lease and the law,
any unamortized brokerage commissions actually paid by Landlord on behalf of
this lease shall become immediately due and payable and a debt to be charged
against the Tenant as additional rent or otherwise. Tenant shall further be
responsible for all costs associated in order to restore the Demised Premises to
their original condition (at the Landlord's option) and to repaint/clean the
Demised Premises.
38. (a) For the purpose of this Paragraph, it is agreed that the area
occupied by Tenant under this Lease represents 3.35 % percent of the total
rentable area of the building, of which the demised premises are a part
(hereinafter referred to as the building); that the "lease year" shall mean the
twelve (12) month period commencing with the first day of the term and each
twelve (12) month period thereafter; that the "Base" tax year for determining
the increase in taxes and vault charges, shall be the tax year 1999/2000. The
"Base" year for determining all charges in subparagraph (b) below shall be
Calendar year 1999.
III-17
(b) In addition to all other rent charges payable by Tenant under this
Lease, Tenant agrees to pay 3.35 % percent of the amount of any increase in
Landlord's expense on the building for real estate taxes, common vault charges
and fuel charges imposed on the building (including the land thereunder) in any
subsequent year over the amount of the fuel costs and taxes, common vault
charges paid or required to be paid by Landlord for the Base tax year, by reason
of any increase in the assessed valuation or an increase in the tax rate, or
both, or by the levy, assessment or imposition of any new or additional real
estate tax or assessment on the building and/or appurtenances (including the
land thereunder) to the extent that same shall be in lieu of or in addition to
any of aforesaid taxes or assessments upon or against said building and/or
appurtenances (including the land thereunder) or by any increase in the vault
charges. The Tenant agrees to pay the amount of any such increase within twenty
(20) days following receipt of Landlord's xxxx for same. If any such increase
shall be applicable to less than a full lease year, the increase shall be
pro-rated. Landlord shall, at the time it sends Tenant a xxxx for the aforesaid
tax increase, enclose a copy of the most recent fuel xxxx and the most recent
tax and related bills from the City of New York and indicate how Landlord
computes Tenant's share of any tax increase.
(c) In addition to the above, Tenant shall be responsible for Tenant's
proportionate share 3.35 % of any Business Improvement District Charge
(B. I. D.) or tax imposed upon the building.
(d) In no event shall the annual rent stated in this Lease (exclusive
of additional rent under this article) be reduced for any year below the amount
specified therefor in paragraph 36 for such year.
39. Electric current is supplied by Landlord and is submetered to the
Tenant who shall purchase same from Landlord or Landlord's agent at the same
base rate which Landlord pays to Consolidated Edison Company (Rate No. 4) plus
Twenty-five (25 %) percent.
Landlord shall not be liable to Tenant for any loss or damage or expense
which Tenant may sustain or incur if either the quantity or character of
electric service is changed or is no longer available or suitable for Tenant's
requirements as a result of causes beyond Landlord's reasonable control. Any
riser or risers to supply Tenant's electrical requirements, upon written request
of Tenant, and written approval of Landlord may be installed by Tenant, at the
sole cost and expense of Tenant, if, in Landlord's sole reasonable judgment, the
same are necessary and will not cause permanent damage or injury to the building
or demised premises or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations, repairs or expense or interfere
with or disturb other tenants or occupants. In addition to the installation of
such riser or risers, Tenant will also at the sole cost and expense of Tenant,
install all other equipment proper and necessary in connection therewith subject
to the aforesaid terms and conditions. Tenant covenants and agrees that at all
times its use of electrical current shall never exceed the capacity of existing
feeders to the building or the risers or wiring installations.
III-18
Bills shall be rendered at such times as Landlord may elect. In the event
that such bills are not paid within fifteen (15) business days after they are
rendered, Landlord may, after fifteen (15) business days written notice to
Tenant in accordance with paragraph 60, discontinue the service of electric
current to the demised premises. Since Landlord is liable to Con Edison for
payment of the bills even in the event Tenant defaults, Landlord's election to
employ this remedy shall not be considered a breach of agreement and shall not
entitle Tenant to any offset of rent.
Landlord may also discontinue the service of electric current to the
demised premises without cause upon thirty (30) days notice to Tenant, however,
in such event, Landlord will continue to supply electric service until Tenant
has had a reasonable time to obtain same directly from the Utility. In the event
of discontinuance of electric service by the Landlord, as hereinabove provided,
Landlord shall have the option to install a meter at its sole cost and expense
and other appropriate wiring to insure that Tenant's electrical service is not
interrupted. In such event Tenant shall not be released from any liability under
this Lease. Such discontinuance shall not be deemed to be a lessening of
services within the meaning of any law, rule, or regulation now or hereafter
enacted, promulgated or issued. In the event of such discontinuance, Tenant
shall arrange to receive such service directly from said public utility
corporation.
If any tax is imposed upon Landlord's receipt from the sale or resale of
electrical energy or gas or telephone service to the Tenant by any Federal,
State or Municipal Authority, Tenant covenants and agrees that, where permitted
by law, Tenant's prorata share of such taxes shall be passed on to, and included
in the xxxx of, and paid by, Tenant to Landlord.
40. It is understood and agreed that this Lease may not be assigned nor
may the demised premises be sub-leased without the prior written consent of
Landlord, whose consent shall not be unreasonable withheld and/or delayed.
However, it is understood and agreed that in the event Landlord consents to any
such assignment, sublet or transfer same shall not diminish Tenant's obligation
to perform all the terms, warranties, and covenants. Such assignment shall NOT
relieve tenant of its obligations or duties hereunder.
At Landlord's option, where Tenant proposes to Sublet or Assign all of the
Demised Premises, Landlord may elect to terminate this Lease in lieu of giving
consent, whereupon all obligations of the parties shall terminate on all
respects. Landlord, if it so elects, shall exercise this option within
Twenty-One (21) days of receipt of a written request for permission to Sublet or
Assign from the Tenant received in accordance with Paragraph 59 of this Lease.
Tenant has no reciprocal option to Terminate. Upon such Termination, the
provisions of this lease applicable to the end of the term shall be accelerated
to the date the Tenant proposed such Sublet or Assignment were to be effective.
In the event Landlord makes such election, Tenant shall remain fully responsible
for all terms of this Lease until the accelerated Termination thereof. Tenant
shall further be responsible for all charges as per paragraph 37A in the event
of any accelerated termination of this Lease pursuant to this paragraph.
III-19
In the event Tenant does sell, assign or transfer this Lease or sublet any
part of the demised premises with Landlord's consent as hereinbefore provided
for a sum in excess of the base rent as herein provided Landlord shall be
entitled to receive one-half (1/2) of any such excess base rent, less of any
expense which Tenant may incur in renting same, including, without limitation,
brokerage commissions, legal fees and the cost of Tenant's leasehold
improvements. Such excess shall be determined by dividing the rent (base and
additional) paid by Tenant by the number of square feet of the demised premises
in order to determine a rent per square foot. If the rent per square foot
pursuant to the sublease or lease assignment exceeds the rent per square foot
pursuant to this Lease less the aforementioned expenses, Landlord shall be
entitled to one-half (1/2) of such excess. For the purposes of this Lease the
portion agree that the demised premises consist of 3210 square feet.
In the event of an assignment or sublease to a subsidiary, parent,
partner, affiliated company or other alter-ego of Tenant, Tenant shall remain
liable for the performances of all obligations pursuant to this Lease. Any such
assignment or sublease shall be permitted without Landlord's consent, except
Landlord must be notified in advance of such assignment or sublease and such
assignment or sublease shall not relieve either the Tenant or any Guarantor from
its obligations hereunder.
Any other assignment must be done in strict compliance with this
paragraph.
41. Tenant shall, at its sole cost and expense, provide and keep in full
force and effect for the benefit of Landlord and Tenant, a liability insurance
policy (naming Landlord as additional insured) in the amount of One Million
($1,000,000) Dollars for any one loss - Said policy shall be in standard form
written by good and solvent insurance companies reasonably satisfied to
Landlord, protecting Landlord and Tenant against any and all liabilities due to
or occasioned by negligence, occurrence, accident, or disaster on or about the
demised premises.
Said policies of insurance shall contain a provision waiving rights of
subrogation as against Landlord.
All certificates of insurance shall be delivered to and left in the
possession of Landlord prior to the commencement of this lease or the
commencement of any work performed in or on the demised premises whichever date
shall be earlier. Such insurance shall be reasonably satisfactory to Landlord
and shall contain a clause requiring notification in writing by Certified Mail,
Return Receipt Requested, on ten (10) days notice to Landlord in the event of
cancellation thereof for any reason whatsoever.
42. Tenant shall be responsible to maintain, service and install fire
extinguishers in the demised premises as required by the New York City Fire
Department and shall be responsible for the arrangement for and costs of all
required inspections.
III-20
43. It is understood and that in the event an insurance company providing
Landlord with insurance for the building in which the demised premises
constitutes a part shall at any time after the commencement of this lease
increase the annual premium for the amount of coverage then in place because of
Tenant's manner of use of the demised premises, other then for office space,
Tenant shall pay to Landlord as "Additional Rent", collectible in the same
manner and method as Rent is collected hereunder, One Hundred (100%) Percent of
such increase, due and payable on the first day of the first month subsequent to
Landlord's notification to Tenant that Landlord has received notification of
such increase.
44. Intentionally Omitted.
45. The Landlord will provide steam heat to the premises between October
15 and May 15 and from 7:00 a.m. to 6:00 p.m., Monday through Friday, when the
outside temperature falls below 55DEG.F. On Saturday, Sunday, legal Holidays,
and between the hours of 5:00 p.m. to 7:00 a.m., the Landlord will provide heat
only if the outside temperature falls below 40DEG.F. In the event of a
mechanical breakdown of the heating equipment, the owner shall not be
responsible for any loss of income or damages sustained by the Tenant. The owner
agrees to make prompt repairs to the heating equipment, provided same is within
the owner's reasonable control.
The Tenant may install a supplementary heating and/or air conditioning
system, which is capable of heating and/or cooling the entire demised premises.
The Tenant's use of the supplementary heat shall be at the sole option, control,
and expense of the Tenant. The heating system shall be installed and operated in
accordance with any and all governmental laws and regulations pertaining
thereto. In the event the Tenant desires to use gas for said supplementary
heating system, the Tenant will first obtain a "blue card" and Con Edison gas
meter through the services of a licensed plumber. No air conditioner shall be
placed in the front of the building. Landlord must approve the location and the
types of air conditioning units used. Such consent shall not be unreasonably be
withheld or delayed, however, air conditioning units must conform to the general
decor of the building.
In no respect is Landlord required to maintain the premises at a specified
temperature.
In no event shall the Landlord's failure to provide heat due to technical
problems be a cause for diminution or suspension of Tenant's rental obligations.
46. In order to properly service and maintain the sprinkler system for the
entire building, the Landlord must gain access to certain sprinkler valves
within Tenant's premises. The Tenant shall permit reasonable access by
Landlord's agents or employees to the valves during normal business hours.
Tenant agrees that nothing may be attached to or hung from any sprinkler pipes.
Tenant expressly grants Landlord an easement to permit access as set forth
above.
III-21
47. No services shall be provided by Landlord on legal holidays including,
but not necessary limited to, New Years Day, Presidents Day, Thanksgiving, Labor
Day, Columbus Day, Election Day, Independence Day, Memorial Day, Xxxxxx Xxxxxx
Xxxx'x Birthday and Christmas Day. Notwithstanding above tenant may use the
premises and passenger elevator.
48. It is understood and agreed that any an all supplies, materials,
services equipment, and labor required for any work performed by Tenant or
performed by Landlord on Tenant's behalf to the demised premises shall be
supplied by Tenant at Tenant's sole cost and expense, unless specifically
excepted herein. Furthermore, it is understood and agreed that Tenant shall make
no demands upon Landlord for the provision of any supplies, materials, services,
equipment, or labor, nor shall Tenant request from Landlord any form of
compensation for Tenant's expenditures, unless specifically provided for herein.
49. It is understood and agreed that any and all work done by Tenant to
the demised premises shall be in accordance with all laws, regulations, and
ordinances of all governmental or municipal agencies having jurisdiction
therein.
50. Tenant, and it assigns, shall indemnify and hold Landlord harmless
from and against all liabilities, obligations, damages, penalties, claims,
costs, and expenses, including reasonable attorneys' fees paid, suffered, or
incurred arising out of or from any occurrence, accident, or disaster in the
demised premises, or in and about or adjacent to the exterior of the building in
which the demised premises constitutes a part, causing injury or damage to any
person, entity, or property, due to, any neglectful act or neglect of Tenant,
its agents, servants, employees, customers, or visitors to comply with and
perform each and every requirement and provision of this lease on its part to be
performed or due or claimed to be due to any use made by Tenant of the demised
premises. The foregoing indemnity shall not apply to the extent that Landlord
shall be determined to be contributorily negligent in respect of any occurrence,
accident or disaster in or about the demised premises.
51. Tenant agrees to use its best efforts to maintain the demised premises
free of any violations that may be imposed by the Department of Buildings and/or
any other governmental or municipal agency having jurisdiction over the demised
premises, arising out of Tenant's manner of use of the demised premises
hereunder which affect Landlord's building.
52. It is understood and agreed that Tenant will only use the demised
premises for General Office use and for no other purpose. Tenant acknowledges
that any breach of the foregoing provision will cause Landlord substantial and
irreparable harm and damage. In addition to all other remedies available to
Landlord, it is understood and agreed that this Lease and the term hereof shall
end, expire, and terminate in the event such breach is not cured within ten (10)
days after notice by Landlord to Tenant to cure said breach as served pursuant
to paragraph 60 hereof. In the event such notice is given, Tenant hereby agrees
to vacate and surrender the demised premises to Landlord forthwith. If tenant
fails to do so landlord may seek an eviction by summary proceeding.
III-22
53. It is understood and agreed that in the event Tenant shall "Hold Over"
and fail to deliver the demised premises to Landlord vacant and in "Broom Clean"
condition at the expiration of this Lease, at the expiration of any extensions
of this Lease, or at any time Landlord shall gain legal possession of the
demised premises by reason of Court Order, Tenant's default, or for any other
reason whatsoever, such "Holding Over" shall not be deemed to extend the term or
to renew this Lease, but such "Holding Over" thereafter shall continue upon the
covenants and conditions herein set forth except that the charge for the 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 at the rate
of 2 times the aggregate rent and additional rent payable hereunder during the
last month of Tenant's legal occupancy, which total sum Tenant agrees to pay
Landlord promptly upon demand, in full, without set-off or deduction. In the
event Tenant shall fail to pay Landlord such charge for "Holding Over" promptly
upon Landlord's demand, as provided for hereinabove, it is understood and agreed
that Landlord shall be entitled to interest calculated at a daily periodic rate
of .0411, an annual percentage rate of Fifteen (15%) percent. Neither the
billing nor the collection of use and occupancy charges 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 foregoing shall survive the term of this Lease
and any renewals or extensions thereof.
54. It is understood and agreed that the demised premises is used
commercially and any refuse or garbage generated from such commercial
establishment will not be removed by the New York City Department of Sanitation.
Therefore, Tenant understands and agrees that Tenant shall, at its own sole cost
and expense, hire a licensed garbage removal service to remove Tenant's garbage
from the demised premises.
55. It is understood and agreed that Tenant, at Tenant's sole cost and
expense, shall provide Landlord with complete access as is reasonable to the
demised premises and every part within the demised premises, provided that
Tenant shall receive reasonable advance notice thereof and that Landlord and its
agents and employees and all such persons shall use their best efforts not to
unreasonably interfere with the conduct of Tenant's business and Tenant's
occupancy of the demised premises. Tenant's failure to comply with this
provision shall be deemed a substantial breach of this Lease and sufficient
grounds for the summary termination of this Lease. Landlord agrees that except
in the event of an emergency requiring immediate entry, it will give Tenant
reasonable notice if Landlord desires to inspect or otherwise gain access to the
demised premises, provided that Tenant shall receive reasonable advance notice
thereof and that Landlord and its agents and employees and all such persons
shall use their best efforts not to unreasonably interfere with the conduct of
Tenant's business and Tenant's occupancy of the demised premises.
Furthermore, in the event Tenant shall fail to provide Landlord with
access as provided for hereinabove and in the event Landlord, in its sole and
reasonable discretion, shall deem it necessary to enter the demised premises
forcibly for any reason whatsoever, Landlord may forcibly enter the demised
premises without any liability to Tenant in the event of any emergency and
Landlord shall repair any damage caused by such forcible entry with whatever
workmen and with whatever materials and in whatever manner Landlord, in its
reasonable discretion, may deem advisable provided such repairs are done in a
workmen like manner. Landlord shall use reasonable efforts not to damage the
demised premises and the property of Tenant located therein provided that Tenant
shall receive reasonable advance notice thereof and that Landlord and its agents
and employees and all such persons shall use their best efforts not to
unreasonably interfere with the conduct of Tenant's business and Tenant's
occupancy of the demised premises.
III-23
56. Tenant has inspected the premises and it is understood and agreed that
except as otherwise provided in this Lease, Tenant will accept the said premises
under this Lease, "AS IS" vacant and broom clean, in their present state and
condition, and Landlord will have no obligations to undertake any alterations,
decoration, installments, additions, improvements, or repairs except as herein
contained in or to the demised premises during the term of this Lease.
Notwithstanding the above Landlord agrees to do the following work:
a) Fully paint space.
b) Refinish existing wood floor (scrape, sand and polyutherane entire
floor).
All Tenant work must be done in accordance with New York City Building
Regulations and Code.
Landlord represents that it has no knowledge of any pending violations or
hazardous wastes at the premises.
57. Tenant hereby expressly grants to Landlord an easement and shall
permit Landlord to erect, use, maintain and repair pipes, ducts, cables,
conduits, plumbing, vents and wires in, to and through the premises as and to
the extent that Landlord may now or hereafter deem to be necessary or
appropriate for the proper operation and maintenance of the building in which
the demised premises are located or to the extent necessary to accommodate the
requirements of other Tenants in the building. All such work shall be done, so
far as practicable, in such manner as to avoid unreasonable interference with
Tenant's use of the premises. Landlord shall grant Tenant access to the plumbing
and electrical systems in the building to the extent that it can so as to allow
the hookup of the Tenant's plumbing and electrical installations.
58. The parties represent that no broker was instrumental in consummating
this Lease, except for Newmark & Company and Xxxxxx Stats Realty. Landlord and
Tenant each agree to indemnify and to hold the other harmless against any claims
for brokerage commissions arising out of any conversations or negotiations had
by the indemnifying party with any other broker regarding these premises. This
indemnity shall include any claim and any of the indemnified party's expenses
arising out of such claims, including, but not limited to, attorneys' fees.
59. Notwithstanding any provision to the contrary, all notices required to
be sent under this lease shall be sent by Certified Mail, Return Receipt
Requested. If to the Tenant, the notice shall be addressed to the Tenant at the
demised premises with a copy to Xxxx Xxxxxxxx, 00 Xxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000 and Xxxxxxx X. Xxxxx, 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Fax NO. (000) 000-0000. If to the Landlord, the notice shall be
addressed to the Landlord at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx with a copy to
Xxxxxxx X. Xxxxxx, Esq., c/o Berliner & Xxxxxx, Esqs., 0 Xxx Xxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax no. (000) 000-0000. Either the Landlord or
the Tenant may designate another address for notices by sending the other party
a notice of same. All notices shall be effective as of the date mailed, if
mailed from a Post Office with proof of mailing.
60. In the event of any conflict between the provisions of this rider and
the printed "Boilerplate" Lease, the provisions of this rider shall prevail.
61. The failure of any party to insist upon the strict performance of a
party to exercise any right, option or remedy hereby reserved shall not be
construed as a waiver for the future of any such
III-24
provision, right, option or remedy or as a waiver of a subsequent breach hereof.
The consent or approval by the Landlord of any act by Tenant requiring the
Landlord's consent or approval shall not be construed to waiver or render
unnecessary the requirement for the Landlord's consent or approval of any
subsequent similar act by the Tenant. The receipt and acceptance by the Landlord
of rent or other payments, charges or sums with knowledge of a breach of any
provision of this Lease Agreement shall not be deemed a waiver of such breach.
No provision of this Lease Agreement shall be deemed to have been waived unless
such waiver shall be in writing signed by the party to be charged. No payment by
the Tenant or receipt by the Landlord of a lesser amount than the rents, charges
and other sums hereby reserved shall be deemed to be other than on account of
the earliest rents, additional rents due hereunder, charges and other sums then
unpaid, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment by Tenant be deemed an accord and
satisfaction, and such rents, charges and other sums shall remain due and
Landlord may pursue any other remedy in this Lease Agreement provided or by law
permitted, and no waiver by Landlord in favor of any other Tenant or occupant
shall constitute a waiver in favor of the Tenant herein. No agreement to accept
a surrender of all or any part of demised premises or this Lease Agreement shall
be valid unless in writing and signed by the Landlord and the Tenant. No
delivery of keys shall operate as a termination of this Lease Agreement or a
surrender of the demised premises.
62. Tenant agrees not to use or permit the demised premises to be used for
parties of any kind, except office parties, nor to permit the maintenance of any
pets or permit the demised premises to be used as residential space or living
quarters.
63. Tenant may install only such locks on the demised premises as are
approved by law, rule or ordinance for premises of the type designated in the
use clause of this lease and further agrees to see to it that all fire exits
remain unobstructed at all times. Tenant further agrees to enforce all laws,
rules or ordinances regulating permitted smoking areas in the demised premises.
Tenant shall be responsible for installation and the cost and expense of all
locks and security devices (i.e. alarms, etc.), and the maintenance thereof.
Landlord is not responsible for any damage or loss to tenant by theft,
vandalism, etc.
III-25
64. Landlord shall provide, at no cost to Tenant, two (2) keys to the
passenger elevator. Additional elevator keys are available, but there shall be a
fifteen ($15) dollar deposit for each extra key. In addition, Landlord shall
give Tenant four (4) listings on the building directory without charge. Up to
two (2) additional listings may be had at Twenty-Five ($25) Dollars per line.
65. (a) Landlord and Tenant agree to give up the right to a trial by jury
in any court action, proceeding or counterclaim on any matters concerning this
Lease, the relationship of Tenant and Landlord or Tenant's use or occupancy of
the demised premises.
(b) If Landlord begins any court action or proceeding against Tenant
in a non-payment or holdover proceeding, Tenant may not make any counterclaim in
such action or proceeding. Tenant agrees that the rents and additional rents due
hereunder shall be due and payable and not subject to any offset or
counterclaims of any kind.
66. Notwithstanding anything to the contrary in this lease it is agreed
that any demand for rent may be made orally and no written notice of any kind
shall be necessary as a condition precedent to commencement of a non-payment
petition:
67. In any action or proceeding brought by Landlord for non-payment of
rent, additional rent and/or holdover. The prevailing party either by court
decision or settlement, shall be entitled to recover the reasonable legal fees
incurred in the prosecution or defense of such action or proceeding.
68. Pursuant to the terms of this Lease, Landlord proposes to give
possession of the Demised Premises to Tenant as of November 1, 1999. Possession
shall be deemed given when the keys to the particular space is delivered. In the
event of a delay in the giving of possession beyond the dates set forth above,
the rent for the portion of the premises for which possession is delayed shall
be apportioned until possession is given Tenant by Landlord. Landlord shall not
be responsible for failure to give possession by the above dates if such delay
is caused by the holding over of the previous tenant, provided Landlord
diligently proceeds to obtain such possession for Tenant. Tenant's sole remedy
in the event of such delay shall be an abatement of the rein for all rental
obligations during the period that the premises are not delivered. Tenant
recognizes that the current tenant's lease does not expire until March 31, 2000.
However, Landlord represents that an early termination of the current tenant's
lease is presently being negotiated and that Landlord is entering this Lease
with a good faith belief that possession will be available by November 1, 1999.
Tenant may terminate this Lease at its option if possession is not available by
December 1, 1999, and in such event all monies advanced on behalf of this Lease
shall be immediately refunded and neither party shall have any further claims
hereunder.
III-26
RENAISSANCE 000 XXXXXXXX LLC,
-----------------------------
Landlord,
By: /s/ Xxxxxxx Xxxxxx
------------------------
Xxxxxxx Xxxxxx
POLITICS. COM, INC.,
--------------------
Tenant,
By: /s/ Xxxx Xxxxxxxx
------------------------
III-27
