EXHIBIT 10.5.4
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AGREEMENT OF SUBLEASE
AGREEMENT OF SUBLEASE (this "SUBLEASE"), made as of the 8th day of June, 2004,
by and between THE XxXXXX PATTERN COMPANY, a Delaware corporation, (as
successor-in-interest by merger to Butterick Company, Inc.) with offices at
Eleven Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("SUBLANDLORD"), and XXXXXX
INTERACTIVE INC., a Delaware corporation, with offices at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("SUBTENANT") with reference to the following facts:
W I T N E S S E T H:
WHEREAS, Sublandlord is presently the tenant as successor in interest to
Butterick Company, Inc. under that certain Lease Agreement, dated as of August
16, 1988, between Xxxxx X. Xxxxx, Inc., as agent for Spring and America
Associates and Xxxxxx X. Mount and Xxxxx X. Xxxxx, collectively, as landlord
("MASTER LANDLORD") and Butterick Company, Inc., as tenant (the "BASE LEASE"),
which Base Lease was amended by Lease Modification and Partial Surrender of
Lease Agreement dated July 12, 1995 (the "FIRST AMENDMENT"), by Lease
Modification and Partial Surrender of Lease Agreement dated May 24, 1996 (the
"SECOND AMENDMENT"), by Lease Modification and Partial Surrender of Lease
Agreement dated March 21, 1997 (the "THIRD AMENDMENT"), by Lease Extension and
Modification Agreement dated September 26, 1997 (the "FOURTH AMENDMENT") and by
Lease Modification and Partial Surrender of Lease Agreement dated January, 2000
(the "FIFTH AMENDMENT"), which Base Lease, First Amendment, Second Amendment,
Third Amendment, Fourth Amendment and Fifth Amendment are hereinafter
collectively called the "MASTER LEASE" (a redacted copy of which is attached
hereto as Exhibit "A"), currently covering certain premises comprising 40,000
rentable square feet consisting of the entire sixth (6th) and seventh (7th)
floors (hereinafter referred to as the "SUBLEASE PREMISES") all as more
particularly described on the floor plan attached hereto as Exhibit "B", in the
building (the "BUILDING") located at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx; and
WHEREAS, Subtenant desires to sublease from Sublandlord, and Sublandlord
is willing to sublease to Subtenant, the Sublease Premises, upon the terms and
conditions set forth in this Sublease;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. DEMISED PREMISES/TERM/SUBTENANT'S WORK.
A. Sublease Premises/Term. Sublandlord does hereby lease to Subtenant,
and Subtenant does hereby hire and take from Sublandlord, the Sublease Premises
for a term (the "TERM") commencing on the date which is the later of (i) June
15, 2004 (the "TARGET COMMENCEMENT DATE") or (ii) such date on which Sublandlord
shall deliver possession of the Sublease Premises to Subtenant, along with the
Master Landlord's Consent (as hereinafter
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defined) (the "COMMENCEMENT DATE"), and expiring at 11:59 p.m. on April 29, 2012
(the "EXPIRATION DATE"), unless sooner terminated pursuant to the terms hereof
or by operation of law. Promptly after delivery of possession of the Sublease
Premises to Subtenant, the parties shall execute a letter confirming the
Commencement Date of this Sublease. Anything herein contained to the contrary
notwithstanding, Sublandlord may tender physical possession of the Sublease
Premises to Subtenant prior to the Target Commencement Date and Subtenant shall
accept possession of the Sublease Premises on the date of delivery of physical
possession to Subtenant (the "EARLY POSSESSION PERIOD"). All the provisions of
this Sublease shall apply during the Early Possession Period except no Monthly
Base Rent (as hereinafter defined) shall be due.
B. Master Landlord' Consent. This Sublease is conditioned upon the
written consent by the Master Landlord to this Sublease, which consent shall be
substantially in the form annexed hereto as Exhibit "C" (the "Consent to
Sublease"). Promptly after the execution of this Sublease, Sublandlord shall
present the Consent to Sublease to Master Landlord for execution. Sublandlord
shall use its best efforts to obtain Master Landlord's execution of the Consent
to Sublease on or before that date which is 45 days from the date first set
forth above (the "Final Consent Delivery Date"), but shall not be required to
take any legal action for such purpose. Subtenant agrees to cooperate with
Sublandlord in responding to any request by Master Landlord for information
(financial or otherwise) or documents relating to Subtenant or its business.
Should Sublandlord fail for any reason to deliver possession of the Sublease
Premises along with the executed Consent to Sublease by the Final Consent
Delivery Date, Subtenant may terminate this Sublease or elect to cause the Term
to commence on (and the Commencement Date shall be) the date on which
Sublandlord actually delivers to Subtenant both possession of the Premises and
the fully executed Consent to Sublease.
C. Subtenant's Work.
(1) "SUBTENANT'S WORK" shall mean the initial installations,
alterations, additions, substitutions, improvements and decorations to be
performed by Subtenant, or its agents, employees or contractors, at Subtenant's
sole cost and expense, subject to the provisions of this Paragraph 1.C., for the
purpose of making the Sublease Premises ready for occupancy by Subtenant.
(2) Subtenant shall prepare, and shall deliver to Master Landlord
(if applicable) and to Sublandlord, for their approval, in accordance with the
provisions of Paragraph FOURTH of the Master Lease, "SUBTENANT'S CONSTRUCTION
DOCUMENTS" in the form, quantity, and manner specified by Sublandlord and/or
Master Landlord. Subtenant's Construction Documents shall be in conformity with
all applicable laws and requirements. Sublandlord shall deliver its comments
and/or approval of Subtenant's Construction Documents within ten (10) business
days of its receipt of said documents and shall use its best efforts to cause
the Master Landlord to promptly deliver its comments and/or approval of
Subtenant's Construction Documents. Subtenant shall cause Subtenant's
Construction Documents to be revised (if necessary), pursuant to Master
Landlord's (if applicable) and Sublandlord's respective comments; provided if
the parties reasonably cannot agree on the necessary revisions within sixty
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(60) days of the date receipt of the later of Sublandlord's or Master Landlord's
comments, Subtenant shall have the right to terminate this Sublease.
(3) Subtenant may use Subtenant's contractor to perform the
Subtenant's Work in accordance with Subtenant's Construction Documents, the
terms of this Sublease, the Master Lease and the following qualifications:
(a) Subtenant shall obtain the written approval of Sublandlord
and Master Landlord (if applicable), (which approval, as to Sublandlord, shall
not be unreasonably withheld or delayed), of the work it proposes to perform and
of the plans and specifications therefor;
(b) Subtenant's Work shall be performed by responsible
contractors and subcontractors reasonably acceptable to and approved in advance
by Sublandlord and Master Landlord, who (i) shall not, in Sublandlord's and
Master Landlord's, respective, reasonable judgment, affect Sublandlord's or
Master Landlord's relationship with Sublandlord's or Master Landlord's
contractors or subcontractors or disturb harmonious labor relations in the
Building, (ii) shall not, in Sublandlord's or Master Landlord's reasonable
judgment, interfere with the use and occupancy of other tenants or Subtenants in
the Building, and (iii) shall maintain in effect, and evidence to Sublandlord
and Master Landlord (by delivery of a duplicate policy or a certification of
insurance), worker's compensation insurance and disability insurance in
accordance with statutory requirements, and comprehensive general liability
insurance with companies, coverages, amounts and insureds as Sublandlord or
Master Landlord may from time to time reasonably require or approve;
(c) Subtenant and its contractors and subcontractors shall be
solely responsible for the transportation, safekeeping and storage of materials
and equipment used in the construction and performance of the Subtenant's Work,
for the removal of waste and debris resulting therefrom, and for any damage
caused by them to any installations or work performed by any other party;
(d) Subtenant shall allow Sublandlord's and/or Master
Landlord's designated representatives' access to the Sublease Premises at
reasonable times during the completion of the Subtenant's Work, for the purposes
of inspecting and verifying Subtenant's Work. Sublandlord and/or Master Landlord
shall inspect the performance of Subtenant's Work and shall advise Subtenant
promptly of any objection to the performance of such Subtenant's Work to the
extent Sublandlord or Master Landlord learns of any condition which is not
reasonably acceptable. Notwithstanding the foregoing, Sublandlord's and/or
Master Landlord's inspection of the Subtenant's Work shall not be (i) an
approval by Sublandlord or Master Landlord of any work performed or materials
furnished with respect to any portion of the Subtenant's Work or (ii) a
representation or acknowledgment by Sublandlord or Master Landlord as to the
fitness of such Subtenant's Work or their compliance with applicable Law (as
hereinafter defined);
(e) All such Subtenant's Work shall be performed during the
hours permitted by Master Landlord and shall not interfere with the operation
and maintenance of
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the Building or unreasonably interfere with or interrupt the use and occupancy
of the Building by other tenants.
(f) All such Subtenant's Work shall comply with all applicable
laws and requirements; and
(g) Subtenant shall indemnify, defend and hold Sublandlord and
Master Landlord harmless from any and all loss, damage, claim, demand, action,
cost and expense incurred by either Sublandlord or Master Landlord (including
reasonable attorneys' fees) arising in connection with the completion of the
Subtenant's Work, unless such loss, damage, claim, demand, action, cost or
expense is caused by Sublandlord's or Master Landlord's willful misconduct or
negligent act or omission.
(4) Subtenant shall pay promptly all persons furnishing labor or
materials with respect to the Subtenant's Work or any other work performed by
Subtenant or its contractors on or about the Sublease Premises. If any
construction lien claim or other lien (collectively "LIEN") shall at any time be
filed against the Building and/or the Sublease Premises by reason of work,
labor, services or materials performed or furnished, or alleged to have been
performed or furnished, to Subtenant or to anyone holding the Sublease Premises
through or under Subtenant, Subtenant shall forthwith cause the same to be
discharged or bonded to the reasonable satisfaction of Sublandlord and Master
Landlord. If Subtenant shall fail to cause such Lien forthwith to be discharged
or bonded within twenty (20) days of the filing thereof, then, in addition to
any other right or remedy of Sublandlord, Sublandlord, following reasonable
prior notice to Subtenant and its failure to cure, may bond or discharge the
same by paying the amount claimed to be due, and the amount so paid by
Sublandlord, including reasonable attorney's fees incurred by Sublandlord either
in defending against such Lien or in procuring the bonding or discharge of such
Lien, together with interest thereon, shall be due and payable by Subtenant to
Sublandlord. Nothing contained in this Sublease shall be deemed or construed in
any way as constituting the consent or request of Sublandlord or Master
Landlord, express or implied, by inference or otherwise, to the filing of any
Lien against the Sublease Premises or the Building by any contractor,
subcontractor, laborer, materialman, architect or engineer for the performance
of any labor or the furnishing of any materials or services for or in connection
with the Sublease Premises or the Building of any part thereof. Notice is hereby
given that Sublandlord and Master Landlord shall not be liable for any labor or
materials or services furnished or to be furnished to Subtenant upon credit.
Subtenant shall indemnify and hold harmless Sublandlord, Master Landlord (and
any ground and underlying lessors) against and from all costs, liabilities,
suits, penalties and demands, including reasonable counsel fees, resulting from
a Lien being filed against Sublandlord, Master Landlord and any ground lessor,
or any portion of the Sublease Premises, regardless of whether or not such Lien,
charge, order or encumbrance is valid or enforceable.
(5) Within a reasonable period after completion of the Subtenant's
Work, Subtenant shall deliver to Sublandlord general releases and waivers of
lien, substantially in the form annexed hereto as Exhibit "C", from all
contractors, subcontractors and materialmen involved in the performance of the
Subtenant's Work and the materials furnished in connection therewith, and a
certificate from the Subtenant's independent licensed architect certifying that
(i)
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Subtenant's Work has been completed substantially in accordance with approved
plans and specifications and (ii) all contractors, subcontractors and
materialmen have been paid for the Subtenant's Work and materials furnished
through such date. Notwithstanding the foregoing, Subtenant shall not be
required to deliver to Sublandlord any general release or waiver of lien if as
to item of work which Subtenant is in good faith disputing, provided, that
Subtenant shall keep Sublandlord advised in a timely fashion of the status of
such dispute and the basis therefor and Subtenant shall deliver to Sublandlord
the general release or waiver of lien when the dispute is settled.
2. RENT.
A. Monthly Base Rent.
(1) Concurrently with the execution and delivery of this
Sublease, Subtenant shall deliver to Sublandlord payment consisting of the first
month's Monthly Base Rent due pursuant to Paragraph 2.A(2)(i) below.
(2) Subject to the provisions of Paragraph 2.A(3) below,
commencing as of the first day of the first calendar month in which the
Commencement Date occurs and continuing throughout the Term of this Sublease,
Subtenant shall pay to Sublandlord on or before the first day of each calendar
month during the Term of this Sublease (each, a "RENTAL PAYMENT DATE"), without
notice or demand, in lawful money of the United States, at the Sublandlord's
address as above stated or such other place as Sublandlord may designate, base
rent for the Sublease Premises for each month during the Term (the "MONTHLY BASE
RENT") in the following amounts:
(i) For the period commencing on the Commencement Date and
terminating on May 31, 2008, annual rent in the amount of SIX
HUNDRED THOUSAND DOLLARS ($600,000.00), payable in equal monthly
installments during such period in the amount of Fifty Thousand
Dollars ($50,000.00) per month;
(ii) For the period commencing on June 1, 2008 and terminating on
the Expiration Date, annual rent in the amount of SIX HUNDRED
EIGHTY THOUSAND DOLLARS ($680,000.00) payable in equal monthly
installments of Fifty-six Thousand Six Hundred Sixty-six and
66/100 Dollars ($56,666.66) per month.
Monthly Base Rent for any period during the Term of this Sublease which is for
less than one (1) calendar month shall be prorated based on a thirty (30) day
month.
(3) Provided Subtenant shall not be in default of its obligations
hereunder beyond applicable notice and cure periods herein or by statute
allowed, Subtenant shall be entitled to abatement of Monthly Base Rent for the
period commencing on the Commencement Date and terminating on January 31, 2005
("Free Rent Period").
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(4) The abatement of Monthly Base Rent during the Free Rent
Period is conditioned upon Subtenant's full performance under this Sublease. If
Subtenant commits an Event of Default (as herein defined), then
(a) Subtenant shall immediately pay to Sublandlord upon demand
a sum equal to the total Monthly Base Rent abated during the Free Rent Period as
of the date of occurrence of such Event of Default, and
(b) Any further abatement of Monthly Base Rent as of the date
of the occurrence of such Event of Default shall thereby automatically terminate
and become null and void, and Subtenant shall thereafter pay all Monthly Base
Rent when due under the Sublease, without regard to the abatement of rent
provisions of this Sublease.
B. Additional Rent.
(1) For purposes of this Sublease, the following terms shall be
applicable:
(a) "SUBTENANT'S PROPORTIONATE SHARE" Shall mean 100% of
the excess of the amounts payable by Sublandlord to Master Landlord pursuant to
Paragraphs THIRTY-EIGHTH and THIRTY-NINTH of the Master Lease above the Sublease
Real Estate Tax Base Year (as herein defined) and Sublease Operating Expense
Base Year (as herein defined).
(b) "SUBLEASE REAL ESTATE TAX BASE YEAR" Shall mean the total
real estate taxes as defined in Paragraph THIRTY-EIGHTH payable by Sublandlord
for the fiscal period July 1, 2004 through June 30, 2005.
(c) "SUBLEASE OPERATING EXPENSE BASE YEAR" Shall mean the
operating expenses as defined in Paragraph THIRTY-NINTH payable by Sublandlord
for the fiscal period January 1, 2004 through December 31, 2004.
(2) Commencing on July 1, 2005, Subtenant shall pay to
Sublandlord as Additional Rent without any setoff or deduction whatsoever, an
amount equal to Subtenant's Proportionate Share of increases above the Sublease
Operating Expense Base Year for such calendar year and commencing on July 1,
2005, Subtenant shall pay to Sublandlord as Additional Rent without any setoff
or deduction whatsoever, an amount equal to Subtenant's Proportionate Share of
increases above the Sublease Real Estate Tax Base Year (collectively, the
"EXCESS ANNUAL EXPENSE AMOUNT"). Subtenant's Proportionate Share of such Excess
Annual Expense Amount shall be payable as follows:
(a) (1) Not later than December 1, 2004 and continuing on
December 1st of each subsequent year during the Term of this Sublease,
Sublandlord shall deliver a statement to Subtenant setting forth Sublandlord's
reasonable estimate of Operating Expenses for the next following calendar year
and (2) Not later than June 1, 2005, and continuing on June 1st of each
subsequent year during the Term of this Sublease, Sublandlord shall deliver a
statement to Subtenant setting forth Sublandlord's reasonable estimate of
Sublease Real Estate
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Taxes for the following fiscal year (collectively, the "ESTIMATED ANNUAL
EXPENSE AMOUNT"), (ii) the difference between the Estimated Annual Expense
Amount and the total amounts for the Sublease Operating Expense Base Year and
the Sublease Real Estate Tax Base Year incurred by Sublandlord (collectively,
the "ESTIMATED EXCESS EXPENSE AMOUNT"), and (iii) Subtenant's Proportionate
Share of such Estimated Excess Expense Amount ("SUBTENANT'S ESTIMATED
OBLIGATION"). Subtenant's Estimated Obligation shall be prorated for any
partial calendar year during the Term of this Sublease.
(b) Commencing (i) July 1, 2005 and on each Rental Payment
Date thereafter during the Term of this Sublease, Subtenant shall pay to
Sublandlord, as Additional Rent, an amount equal to 1/12th Subtenant's Estimated
Obligation for Operating Expense escalations for the calendar year in which such
Rental Payment Date occurs, and (ii) July 1, 2005 and on each Rental Payment
Date thereafter during the Term of this Sublease, Subtenant shall pay to
Sublandlord, as Additional Rent, an amount equal to l/12th Subtenant's Estimated
Obligation for Real Estate Tax escalation for the fiscal year in which such
Rental Payment Date occurs.
(c) Not later than September 1 of each calendar year,
commencing on September 1, 2006, Sublandlord shall furnish Subtenant with a
statement ("FINAL EXPENSE STATEMENT") setting forth (i) the actual amount of the
excess above Sublease Operating Expense Base Year and Sublease Real Estate Tax
Base Year incurred by Sublandlord for the preceding fiscal year ("SUBLANDLORD'S
ACTUAL EXCESS COSTS"), (ii) Subtenant's Proportionate Share of Sublandlord's
Actual Excess Costs ("SUBTENANT'S ACTUAL OBLIGATION"), and (iv) the amount by
which Subtenant's Actual Obligation exceeds or is less than that portion of
Subtenant's Estimated Obligation paid by Subtenant in the previous fiscal year.
(d) Within thirty (30) days after Sublandlord's giving of such
Final Expense Statement, Subtenant shall make a lump sum payment to Sublandlord
equal to the amount by which Subtenant's Actual Obligation exceeds the aggregate
of the monthly installments of Subtenant's Estimated Obligation paid during such
previous fiscal year. If Subtenant's Actual Obligation is less than the
aggregate of the monthly installments of Subtenant's Estimated Obligation
actually paid by Subtenant during such preceding fiscal year (in such event, an
"EXCESS PAYMENT"), then Sublandlord shall credit the amount of such Excess
Payment to the next accruing monthly installment(s) of Subtenant's Estimated
Amount for the then-current fiscal year until such Excess Payment is fully
credited to Subtenant. Following the end of the Term, Sublandlord agrees to
refund any overpayment to Subtenant. Subtenant shall have the right to Inspect
Sublandlord's accounting records pertaining to the Operating Costs and Real
Estate Taxes as set forth on the Final Expense Statement within ninety (90) days
of the delivery of such Final Expense Statement to Subtenant. If, after such
inspection, Subtenant disputes the amount of Subtenant's Actual Obligation,
Subtenant shall be entitled to retain an independent public accountant to audit
and/or review Sublandlord's records. No later than thirty (30) days after
inspection by the Subtenant, Subtenant shall give Sublandlord notice (the
"INSPECTION NOTICE") that Subtenant intends to cause Sublandlord's books and
records with respect to the preceding fiscal year to be audited, identifying the
expense in question and setting out in reasonable detail the reason why such
expense should not be binding on Subtenant. If Subtenant does not cause such
audit to be accomplished within sixty (60) days after receipt of the
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Inspection Notice (and predicated on Sublandlord's cooperation therewith),
Subtenant's right to object to any such expense shall terminate. Subtenant shall
pay all costs of such audit (including, without limitation, any and all copying
costs), and the amount of Subtenant's Actual Obligation for such calendar year
shall be appropriately adjusted on the basis of such audit. The provisions of
this subsection shall survive the Expiration Date or the earlier termination of
the Sublease.
(e) If the Term ends on a date other than the last day of
December, the actual Operating Costs for the year in which the Expiration Date
occurs shall be prorated so that Subtenant shall pay that portion of Subtenant's
Proportionate Share of Sublandlord's Actual Excess Costs for such year
represented by a fraction, the numerator of which shall be the number of days
during such fractional year falling within the Term, and the denominator of
which is 365. The provisions of this subsection shall survive the Expiration
Date or any sooner termination of this Sublease.
C. Rent. As used herein the term "ADDITIONAL RENT" shall refer to
all sums of money which shall become due and payable by Subtenant to Sublandlord
under this Sublease other than Monthly Base Rent, and the term "RENTS" shall
refer collectively to Monthly Base Rent and Additional Rent.
D. Delivery of Statements and Bills. Sublandlord's failure to
deliver any statements or bills required to be delivered to Subtenant hereunder,
or Sublandlord's failure to make a demand under this Sublease, shall not be a
waiver of, or cause Sublandlord to forfeit or surrender, its rights to collect
any Rents which may have become due pursuant to this Sublease; provided however:
(1) Subtenant shall continue to pay to Sublandlord Subtenant's Estimated
Obligation applicable for such calendar year until delivery to Subtenant of
Subtenant's Actual Obligation and (2) any statement or xxxx must be delivered to
Subtenant within twelve months of the date due in order to be considered valid.
Rent accruing during the term of this Sublease shall survive the expiration or
sooner termination of this Sublease.
3. INTENTIONALLY OMITTED.
4. UTILITIES AND SERVICES.
A. Utilities. Subtenant shall pay for all utilities, including
electricity, gas, water, and telephone service furnished to the Sublease
Premises. Sublandlord shall monthly invoice Subtenant, as additional rent,
Subtenant's usage of electricity based upon the invoices received by Sublandlord
from the Master Landlord for such electricity usage as measured by a submeter.
Sublandlord shall supply Subtenant with electricity to the Sublease Premises to
the same extent and subject to the terms and conditions set forth in Paragraph
TENTH of the Master Lease provided however, that Sublandlord shall have no
liability for failure to deliver electricity to Subtenant unless such failure is
due to Sublandlord's intentional act. If Subtenant shall desire any change or
increase in the nature or any such utility services, Sublandlord's sole
obligation shall be to use reasonable efforts to cause the Master Landlord to
provide such changes in such utility services requested by Subtenant, and
Subtenant, shall, on demand, pay or reimburse Sublandlord for all reasonable
costs, charges or expenses incurred by Sublandlord in causing Master Landlord to
provide such services and in the cost for providing such services.
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Sublandlord shall have no obligation to alter existing lines or equipment
providing distribution of electricity throughout the Sublease Premises.
Subtenant shall be solely responsible for any alterations to the existing lines
or equipment made necessary by Subtenant's alterations to the Sublease Premises
or otherwise required due to Subtenant's particular use of the Sublease
Premises; provided however, that any such alterations shall be subject to the
prior approval of Sublandlord and Master Landlord in accordance with Paragraph 9
below.
B. Services. Except as otherwise specifically provided in this
Sublease, during the Term, Subtenant shall receive the building services
("SERVICES") provided under the Master Lease. Subtenant shall pay to Sublandlord
the cost of such Services as billed by Master Landlord to Sublandlord.
C. Interruption. Sublandlord reserves the right, without any
liability to Subtenant, and without being in breach of any covenant of this
Sublease, to interrupt or suspend any of the Services to be provided by
Sublandlord, as may be necessary by reason of accidents, emergencies, strikes,
mechanical failures, repairs or changes to any system, inability to secure fuel,
labor or supplies, or governmental restrictions or voluntary compliance
programs, or by reason of any other cause beyond Sublandlord's reasonable
control; provided however that all such interruptions shall be discontinued as
soon as commercially practicable.
D. Services Provided by Master Landlord. Anything to the contrary
notwithstanding in the preceding provisions of this Xxxxxxxxx 0, Xxxxxxxxxxx
shall not be obligated:
(a) to provide any of the services or utilities that Master
Landlord has agreed in the Master Lease to provide,
(b) to make any of the repairs or restorations that Master
Landlord has agreed in the Master Lease to make,
(c) to comply with any laws or requirements of public
authorities with which Master Landlord has agreed in the Master Lease to comply,
or
(d) to take any action with respect to the operation,
administration or control of the Building or any of its public or common areas
that the Master Landlord has agreed in the Master Lease to take.
5. PERMITTED USE.
A. General Office Use. Subtenant shall use and occupy the Sublease
Premises for general, executive and administrative offices.
B. No Overload. Subtenant shall not use, or suffer or permit the
use of, the Sublease Premises or any part thereof in any manner or for any
purpose or do, bring or keep anything, or suffer or permit anything to be done,
brought or kept, therein (including, but not limited to, the installation or
operation of any electrical, electronic or other equipment, but not including
word processors and personal computers) which would: (1) violate any covenant,
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agreement, term, provision or condition of this Sublease or is unlawful or in
contravention of the certificate of occupancy for the Building or for the
Sublease Premises, or is a contravention of any legal, zoning or insurance
requirement to which the Building or the Sublease Premises is subject, or (2)
alter, affect or interfere with or which would overload or could cause an
overload of the electrical or mechanical systems or any other component of the
Building or which would exceed the floor load per square foot which the floor
was designed to carry and which is allowed by Law, or (3) in the commercially
reasonable judgment of the Sublandlord, impair or interfere with the proper and
economic heating or air conditioning of the Building, or exceed the design
criteria, the structural integrity, character or appearance of the Building, or
any system or component thereof, or result in the use of the Building, or any
component thereof, in a manner or for a purpose not intended. Sublandlord shall
use its commercially reasonable judgment in determining whether Subtenant is in
violation of this Section 5B. Sublandlord shall specify in writing the reasons
for its determination and propose reasonable cures. Subtenant shall have thirty
(30) days (or such longer period as may be reasonably necessary) to cure any
alleged violation of this Section to the reasonable satisfaction of both
parties. It is agreed that Subtenant's intended initial occupancy and layout of
equipment and furniture as set forth in Subtenant's Construction Documents does
not violate any requirement of this Section. Subtenant shall conduct its
business and control its employees, agents, invitees and visitors in such manner
as not to create any nuisance, or interfere with, annoy or disturb any other
tenant or occupant of the Building or Sublandlord in the operation of the
Building. Subtenant will not do anything that will cause an increase in the
existing rate of insurance carried by Sublandlord with respect to the Building
or cause a cancellation of Sublandlord's insurance.
6. SUBORDINATION TO AND INCORPORATION OF THE MASTER LEASE.
A. Master Lease. This Sublease shall be subject and subordinate to
the Master Lease, and to all leases, mortgages and other rights or encumbrances
to which the Master Lease is subordinate. This provision shall be self-operative
but Subtenant shall within ten (10) days of Sublandlord's request execute any
instrument reasonably requested by Sublandlord or Master Landlord to evidence or
confirm the same. Sublandlord represents that a true and complete copy of the
Master Lease (excluding redacted terms and conditions not relevant to Subtenant)
is attached hereto as "Exhibit B". Sublandlord shall make no election to
terminate the Master Lease (except if arising out of casualty or condemnation as
expressly set forth in the Master Lease) without Subtenant's prior written
consent. Sublandlord shall not amend the Master Lease in a manner adverse to
Subtenant in any material respect.
B. Included Provisions. Except as otherwise expressly provided in,
or otherwise inconsistent with, this Sublease, and except to the extent not
applicable to the Sublease Premises, all provisions of the Master Lease other
than the Excluded Provisions (as hereinafter identified) are hereby incorporated
in this Sublease by reference with the same force and effect as if set forth
herein, except that unless the context requires otherwise:
(1) references in such provisions to Owner, Landlord or Lessor
shall be deemed to refer to Sublandlord;
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(2) references in such provisions to Tenant or Lessee shall be
deemed to refer to Subtenant;
(3) references in such provisions to the Premises or the Demised
Premises shall be deemed to refer to the Sublease Premises;
(4) references in such provisions to other provisions of the
Master Lease that are not incorporated herein shall be disregarded; and
(5) references in such provisions to subleases, sublettings or
Subtenants shall be deemed to refer to sub-subleases, sub-sublettings or
sub-subtenants.
C. Excluded Provisions. For purposes of this Paragraph 6, "EXCLUDED
PROVISIONS" shall refer to the following provisions which are not incorporated
into this Sublease and any other provisions inconsistent with the express terms
of this Sublease:
(1) The provisions of the first two paragraphs commencing on page
1(A) of the Base Lease defining the Premises, Term and rent and additional rent;
(2) The provisions of Paragraph FIRST of the Base Lease regarding
the use of the Sublease Premises;
(3) The provisions of Paragraph TWENTY-THIRD of the Base Lease
regarding notice to Master Landlord;
(4) The covenant of quiet enjoyment set forth in Paragraph
TWENTY-SEVENTH of the Base Lease, provided however that exclusion of such
provision shall not be deemed to effect or waive Subtenant's rights under the
covenant of quiet enjoyment set forth in Paragraph 16 hereof;
(5) The provisions of Paragraph FORTY-SECOND of the Base Lease
regarding arbitration of disputes;
(6) The provisions of Paragraph FORTY-FOURTH of the Base Lease
regarding Brokers;
(7) The provisions of Paragraph FORTY-SIXTH of the Base Lease
regarding delivery of possession;
(8) The provisions of subparagraphs (1) and (2) relating to
Paragraph EIGHTEENTH of the Base Lease set forth in Rider 2 to the Base Lease;
(9) The provisions relating to Paragraph Fortieth of the Base
Lease set forth in Rider 2 to the Base Lease;
(10) The provisions of Paragraph FIFTIETH of the Base Lease
regarding Landlord's work;
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(11) The provisions of Paragraph FIFTY-SECOND of the Base Lease
regarding the name of the Building;
(12) The provisions of the First Amendment, Second Amendment,
Third Amendment, the Fourth Amendment, except for subparagraphs 2 and 8, which
are included in this Sublease, and the Fifth Amendment.
D. Modifications to Master Lease. In addition, the following
provisions of the Master Lease, as incorporated herein, shall be deemed modified
as follows:
(1) The provisions of Paragraph THIRTY-EIGHTH of the Base Lease,
as amended, with respect to the determination of Subtenant's obligations
pursuant to Paragraph 2.B hereof;
(2) The provisions of Paragraph THIRTY-NINTH of the Base Lease,
as amended, with respect to the determination of Subtenant's obligations
pursuant to Paragraph 2.B hereof;
(3) The floor plans attached as Exhibits to the Base Lease
relating solely to floors 6 and 0
X. Xxxxxxxxxxx Xxxxxxxxx. Xxxxxxxxxxx agrees as follows:
(1) to maintain the Master Lease during the Term of this
Sublease, subject, however, to any termination of the Master Lease without fault
of the Sublandlord, and Sublandlord agrees to comply with or perform all of its
obligations under the Master Lease that Subtenant has not assumed under this
Sublease;
(2) upon Subtenant's request, to use reasonable efforts
(excluding litigation), at Subtenant's expense, (a) to cause the Master Landlord
to observe or perform any term, covenant or condition of the Master Lease
required to be observed or performed by Master Landlord, or (b) to obtain Master
Landlord's consent or approval whenever required by the Master Lease (unless, in
such instance, Sublandlord shall be entitled to withhold its consent or approval
even if Master Landlord shall have granted its consent or approval), and
(3) that, if any right or remedy of Sublandlord or any duty or
obligation of Master Landlord under the Master Lease is subject to or
conditioned upon Sublandlord's making any demand upon the Master Landlord or
giving any notice, request or statement to Master Landlord then, if Subtenant
shall so request, Sublandlord, at Subtenant's expense, shall make such demand or
give such notice, request or statement, except that Sublandlord shall not be
required to request Master Landlord's consent or approval with respect to any
act or thing as to which Sublandlord shall have determined in accordance with
this Sublease to withhold its consent or approval.
F. Approvals. Whenever Subtenant desires to do any act or thing
which requires the consent or approval of Master Landlord:
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(1) Subtenant shall not do such act or thing without first having
obtained the consent or approval of both Master Landlord and Sublandlord (and
Sublandlord's right to withhold consent or approval shall be independent of
Master Landlord's right);
(2) Subtenant shall not request Master Landlord's consent or
approval directly (and no efforts by Sublandlord to obtain Master Landlord's
consent or approval shall constitute Sublandlord's consent or approval or
prejudice Sublandlord's right to withhold consent or approval); and
(3) in no event shall Sublandlord be required to give its consent
or approval prior to Master Landlord doing so.
G Performance. Notwithstanding any other provision of this
Sublease, Subtenant shall perform all of its obligations hereunder at such
times, by such dates or within such periods as Sublandlord shall be required to
perform its corresponding obligations under the Master Lease. If Master Landlord
shall give any notice of failure or default under the Master Lease arising out
of any failure of Subtenant to perform any of its obligations hereunder (other
than the payment of money) then Sublandlord shall promptly furnish Subtenant
with a copy thereof. If the Master Lease shall provide any grace or cure period
for such failure or default then the grace or cure period hereunder shall expire
one (1) day prior to the date on which the grace or cure period under the Master
Lease shall expire. in no event shall this Paragraph 6F extend the time, date or
period by or within which Subtenant is required to perform. Sublandlord agrees
to forward to Subtenant at the address indicated in Paragraph 13 of this
Sublease, promptly (by telecopy or overnight delivery) upon receipt or sending
thereof, a copy of each such notice received or given by Sublandlord in its
capacity as tenant under the Master Lease. Subtenant agrees to forward to
Sublandlord at the address indicated in Paragraph 13 of this Sublease, promptly
(by telecopy or overnight delivery) upon receipt thereof, copies of any such
notices of default received by Subtenant from Master Landlord or from any
governmental authorities. Sublandlord and Subtenant agree to indemnify, defend
and save each other harmless against any liability arising from the failure of
Sublandlord or Subtenant, as the case may be, to forward any such notice of
default promptly.
H. Sublandlord's Right to Cure. If (1) Subtenant shall fail to
perform any of its obligations hereunder and such failure shall continue beyond
any cure period provided for herein, or (2) Master Landlord shall give any
notice of failure or default under the Master Lease arising out of any failure
by Subtenant to perform any of its obligations hereunder then, in either case,
Sublandlord shall have the right (but not the obligation) to perform or endeavor
to perform such obligation, at Subtenant's expense, and Subtenant shall, within
ten (10) days of Sublandlord's demands from time to time, reimburse Sublandlord
for all reasonable costs and reasonable expenses incurred by Sublandlord in
doing so.
I. Subtenant's Right to Cure. At any time and from time to time,
Subtenant shall have the right, but not the obligation, to make any payment or
take any action necessary to cure a default by Sublandlord under the Master
Lease provided Subtenant has notified Sublandlord in writing that Subtenant
elects to cure such default and within five (5) days after Subtenant's receipt
of such notice, with respect to a monetary default, and thirty (30) days
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after Subtenant's receipt of such notice, with respect to all other defaults,
and Sublandlord has not either cured such default or provided evidence
reasonably acceptable to Subtenant that such default will be cured before the
earlier of (1) expiration of the applicable cure period, or (2) as necessary to
prevent a default under Master Lease. Upon the occurrence of a default by
Sublandlord beyond any applicable cure period, Subtenant at its option, in
addition to any and all other remedies which it may have at law and/or in
equity, and without its actions being deemed an election of remedies or a cure
of Sublandlord's default, may pursue any and all rights and remedies available
at law or in equity, whether at the same time or otherwise. In addition, upon
Sublandlord's default beyond any applicable cure period, if Subtenant pays or
performs such obligation of Sublandlord, Subtenant may offset costs incurred by
Subtenant (plus interest at the XX Xxxxxx Xxxxx Bank Prime Rate plus 2%) against
monies due hereunder. In addition, and notwithstanding the foregoing, if the
nature of such default is such that Subtenant cannot reasonably wait for
Sublandlord, or the Master Landlord to cure such default on account of the
imminent danger to persons or property in the Sublease Premises, then Subtenant
may, without being obligated, promptly commence the curing of such default, and
Sublandlord shall, within fifteen (15) days following receipt of demand
(including receipt of reasonable back-up information) reimburse Subtenant for
all its costs and expenses reasonably incurred in the curing of such default. If
Sublandlord shall fail to reimburse Subtenant within such period, Subtenant
shall have the right to offset such amount plus interest thereon.
J. Termination. If the Master Lease is terminated for any reason
during the term hereof, then and in that event this Sublease shall thereupon
automatically terminate as of the date upon which the Master Lease is so
terminated; provided, however, that if Subtenant shall in writing elect to
assume Sublandlord's obligations under the Master Lease as a direct lease
between Master Landlord and Subtenant and Subtenant agrees to attorn to Master
Landlord in accordance with the provisions of the Consent to Sublease, this
Sublease, as so deemed amended pursuant to said Consent to Sublease, shall
continue as a direct lease between Master Landlord and Subtenant and Sublandlord
shall have no further liability hereunder from and after the date thereof. In
the event of such termination of the Master Lease, Sublandlord shall have no
liability to Subtenant by reason thereof, except if such termination was caused
by a breach of Sublandlord's obligations thereunder. Upon the termination of
this Sublease, whether by forfeiture, lapse of time or otherwise, or upon
termination of Subtenant's right to possession, Subtenant will at once surrender
and deliver up the Sublease Premises in good condition and repair, reasonable
wear and tear excepted.
7. DEFAULT; CURE. In the event Subtenant shall default in the full
performance of any of the terms, covenants and conditions on its part to be
performed under this Sublease, then Sublandlord shall have the same rights and
remedies with respect to such default as are given to Master Landlord under the
Master Lease with respect to defaults by Sublandlord, as tenant, under the
Master Lease and Subtenant shall be entitled to all notice and opportunity to
cure as are afforded Sublandlord (acting as Lessee) under the Master Lease.
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8. PHYSICAL CONDITION OF SUBLEASE PREMISES. Subtenant hereby acknowledges
that it has inspected the Sublease Premises and is fully familiar with the
physical condition thereof, and agrees to take the same "As Is", but subject to
Sublandlord's representations and warranties herein made. Subtenant acknowledges
that Sublandlord shall have no obligation to do any work in or to the Sublease
Premises to make the Sublease Premises suitable and ready for occupancy and use
by Subtenant; provided.
9. REPAIRS. Subtenant shall periodically inspect the Sublease Premises to
identify any conditions that are dangerous or in need of maintenance or repair.
Subtenant shall promptly provide Sublandlord with notice of any such conditions.
Subtenant shall, at its sole cost and expense, perform all maintenance and
repairs to the Sublease Premises that are not Sublandlord's express
responsibility under this Sublease, and keep the Sublease Premises in good
condition and repair, reasonable wear and tear excepted; provided however,
nothing herein shall be deemed to obligate Subtenant to make structural or
capital repairs to the Sublease Premises unless the same are necessitated as a
direct result of Subtenant's negligent or wrongful act or omission. Subtenant's
repair and maintenance obligations include, without limitation, repairs to: (a)
floor covering; (b) interior partitions; (c) doors; (d) the interior side of
demising walls; (e) electronic, phone and data cabling and related equipment
that is installed by or for the exclusive benefit of, or furnished to Subtenant;
(f)HVAC and supplemental air conditioning units, kitchens, including hot water
heaters, plumbing, and similar facilities exclusively serving Subtenant; (g)
bathrooms and (h) Alterations. If Subtenant fails to make repairs to the
Sublease Premises as herein required within 30 days following notice from
Sublandlord (or such longer period as may be reasonably necessary to complete
such repairs), Sublandlord may make the repairs, Subtenant shall reimburse
Sublandlord for the reasonable cost of such repairs, together with an
administrative charge in an amount equal to 5% of the cost of the repairs.
10. ALTERATIONS. Subtenant agrees that it shall not make or permit the
making of any alterations, decorations, installations, additions or
improvements, including the Tenant Improvements, in or to the Sublease Premises
except in strict compliance with the conditions set forth in Paragraph FOURTH of
the Base Lease, which conditions may include, as applicable, the prior consent
of both Master Landlord (if applicable) and Sublandlord as set forth therein.
Subtenant agrees to reimburse Sublandlord for any fees or other charges levied
against Sublandlord by Master Landlord in connection with obtaining such consent
and in making such alterations, decorations, installations, additions or
improvements. Sublandlord shall forward to Master Landlord any request from
Subtenant for alterations to the Sublease Premises, to the extent such consent
is required under the terms of the Master Lease, within five (5) business days
after receipt of such request from Subtenant. To the extent that the consent of
Master Landlord and Sublandlord is required pursuant to the terms of Paragraph
FOURTH of the Base Lease, Sublandlord shall give or deny its consent to any
alterations requested by Subtenant no later than five (5) business days after
request for approval. Sublandlord shall advise Subtenant, within two (2)
business days after receipt thereof, of Master Landlord's consent or denial of
any alterations requested by Subtenant. Subtenant shall remove any alterations,
including Subtenant's Work, on or prior to the Expiration Date, if and to the
extent required by Master Landlord. After completion of Subtenant's Work
contemplated by Section 1B above, Subtenant shall have the right to make
non-structural and/or cosmetic alterations and improvements to the Sublease
Premises to the same extent as Sublandlord could under Section FOURTH of the
Base Lease,
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provided the same do not cost in excess of $25,000 per incident; such right is
agreed to be personal to Subtenant. Notwithstanding anything to the contrary
contained in this Sublease, on condition that the Subtenant is in compliance
with all applicable governmental laws, rules and regulations, Sublandlord shall
not unreasonably withhold or delay its consent to any non-structural alteration.
11. SUBLANDLORD'S REPRESENTATIONS AND WARRANTIES. Sublandlord covenants,
warrants and represents:
(i) that the execution, delivery and performance of this
Sublease by the Sublandlord, and the consummation of all transactions
contemplated hereby, have been duly authorized by all necessary corporate action
of the Sublandlord; and
(ii) that Sublandlord has not done, will not do or cause
to be done or fail to do or suffer or permit anything to be done by Sublandlord,
its employees, agents, invitees, licensees, successors or assigns which would
constitute a default under the Master Lease or might cause the Master Lease or
the rights of Sublandlord, as lessee hereunder, to be cancelled, terminated or
forfeited.
(iii) that the Master Lease is in full force and effect,
and Sublandlord has neither given nor received a notice of default pursuant to
the Master Lease.
(iv) to the best of Sublandlord's knowledge, there are
no liens or similar claims (excluding mortgages and unpaid taxes not yet due)
upon the Building.
(v) to the best of Sublandlord's knowledge, (1) there
are no hazardous substances in, on or about the Sublease Premises in violation
of applicable Law, (2) Sublandlord has obtained an ACP-5 Certificate from the
applicable governmental agency ( a copy of which shall be furnished to
Subtenant), and (3) Sublandlord has not caused or permitted any release of any
hazardous substance on or about the Building;
(vi) that Sublandlord has installed ADA compliant
bathrooms on each floor of the Sublease Premises;
(vii) that Sublandlord has installed a new HVAC system
servicing the Sublease Premises, which HVAC system shall be in working order on
the Commencement Date.
12. SUBTENANT'S REPRESENTATIONS AND WARRANTIES. Subtenant covenants,
warrants and represents:
(i) that the execution, delivery and performance of this
Sublease by the Subtenant, and the consummation of all transactions contemplated
hereby, have been duly authorized by all necessary action of the Subtenant; and
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(ii) that Subtenant will not do or cause to be done or
fail to do or suffer or permit anything to be done by Subtenant, employees,
agents, invitees, licensees, successors or assigns which would constitute a
default under the Master Lease or might cause the Master Lease or the rights of
Sublandlord, as tenant hereunder, to be cancelled, terminated or forfeited or
which would make Sublandlord liable for damages, claims or penalties pursuant
thereto.
13. SUBLETTING/ASSIGNMENT.
A. Consent. Without the prior written consent of Sublandlord (which
consent Sublandlord shall not unreasonably withhold or delay) in each instance
and except as otherwise permitted herein:
(1) this Sublease shall not be assigned, encumbered or
otherwise transferred, including by operation of law:
(2) the Sublease Premises shall not be sub-sublet by Subtenant
in whole or, except in connection with the conduct of Subtenant's Business, in
part; and
(3) the Sublease Premises shall not be used or occupied by any
person other than Subtenant, in whole or, except in connection with the conduct
of Subtenant's Business, in part.
B. Subordination. Any sub-sublease shall be subject and subordinate
to this Sublease. No assignment shall be valid or effective unless and until the
assignee shall have delivered to Sublandlord an instrument, in form satisfactory
to Sublandlord, pursuant to which the assignee assumes the due observance and
performance of all of the obligations of Subtenant hereunder from and after the
date of such assignment.
C. No Release. Subtenant covenants and agrees that notwithstanding
any sub-subletting to any other sub-subtenant and/or acceptance of rent by
Sublandlord from any sub-Subtenant, Subtenant shall and will remain fully
liable for the payment of the Rent due and to become due hereunder and for the
performance of all the covenants, agreements, terms, provisions and conditions
contained in this Sublease on the part of Subtenant to be performed.
D. Proposed Assignment or Sublet. At least fifteen (15) days prior to
any proposed assignment of all of the Sublease Premises or sub-subletting of all
or, except in connection with the conduct of Subtenant's Business, any portion
of the Sublease Premises, Subtenant shall submit a statement to Sublandlord (a
"SUBTENANT STATEMENT") containing the following information: (i) the name and
address of the proposed assignee or sub-Subtenant, (ii) the terms and conditions
of the proposed assignment or sub-sublet, including, without limitation, the
rent payable and the value of any improvements to the Sublease Premises for
occupancy by such assignee or sub-Subtenant, (iii) the nature and character of
the business of the proposed assignee or sub-Subtenant, and (iv) any other
information that Sublandlord may reasonably request. If Sublandlord shall fail
to notify Subtenant within ten (10) day of the Subtenant Statement of
Sublandlord's consent or disapproval of the proposed assignment or sub-sublet
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pursuant to the Subtenant Statement, or if Sublandlord shall have consented to
such assignment or subsublet, Sublandlord shall be deemed to have consented and
Subtenant shall have the right to assign the Sublease or to sub-sublet such
portion of the Sublease Premises on the same terms and conditions set forth in
the Subtenant Statement, subject to the terms and conditions of this Sublease.
If Subtenant shall not enter into such assignment or sub-sublease within sixty
(60) days after receipt of Sublandlord's consent or deemed consent thereto, then
the provisions of this Paragraph 13D shall again be applicable to any proposed
assignment or sub-subletting. If Subtenant shall enter into such assignment or
sub-sublease within such sixty (60) day period, Subtenant shall deliver a true,
complete and fully executed counterpart of all documents pertaining to such
assignment or sub-sublease within five (5) days after the execution thereof.
E. Rent Recapture Right. If Sublandlord shall give its consent to
any assignment of this Sublease or, except in connection with the conduct of
Subtenant's Business, to any sub-sublease, Subtenant shall in consideration
therefor pay to Sublandlord as Additional Rent the following amounts after
deduction by Subtenant of the actual expenses incurred by Subtenant in
connection with such assignment or subletting including reasonable legal fees,
brokerage commissions, any commercially reasonable rent abatement, unamortized
cost to Subtenant of any furniture or furnishings sold to the assignee or
Subtenant to the extent Subtenant paid for same out of its own pocket and costs
of making alterations to the Sublease Premise as a condition thereto, as the
case may be:
(i) In the case of an assignment of the Sublease, an
amount equal to fifty (50%) percent of the sums and other considerations paid to
Subtenant by the assignee for or by reason of such assignment (including, but
not limited to, sums paid for the assignment of Subtenant's interest in any
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property leased to Subtenant by Sublandlord pursuant to the terms of
this Sublease, but expressly excluding the sale of any of Subtenant's fixtures,
leasehold improvements, equipment, furniture, furnishings or other personal
property paid for by Subtenant out of its own pocket); and
(ii) In the case of a sub-sublease, fifty (50%) percent
of rents, additional charges or other consideration payable under the
sub-sublease to Subtenant by the sub-subtenant during each month during the term
of the sub-sublease which is in excess of the Base Rent and Additional Rent
accruing during said months during the term of the sub-sublease in respect of
the sub-subleased space pursuant to the terms hereof (including, but not limited
to, sums paid for the sale or rental of Subtenant's interest in any fixtures,
leasehold improvements, equipment, furniture, furnishings or other personal
property leased to Subtenant by Sublandlord pursuant to the terms of this
Sublease, but expressly excluding the sale or renting of any of Subtenant's
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property paid for by Subtenant out of its own pocket);.
The sums payable under this Paragraph 13E shall be paid to Sublandlord as
Additional Rent if, as and when paid to Subtenant by the assignee or
sub-Subtenant.
F. Permitted Assignments and Sublets. Notwithstanding anything to
the contrary contained in this Paragraph 13, Subtenant may assign this Sublease
to a successor to
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Subtenant by purchase, merger, consolidation or reorganization (an "Ownership
Change") or assign this Sublease or sublet all or a portion of the Sublease
Premises to an Affiliate without the consent of Sublandlord, provided that all
of the following conditions are satisfied (a "Permitted Transfer"): (a)
Subtenant is not in Default; and (b) Subtenant shall give Sublandlord written
notice at least 15 business days prior to the effective date of the Permitted
Transfer. Subtenant's notice to Sublandlord shall include information and
documentation evidencing the Permitted Transfer and showing that each of the
above conditions has been satisfied. If requested by Sublandlord, Subtenant's
successor shall sign a commercially reasonable form of assumption agreement.
"Affiliate" shall mean an entity controlled by, controlling or under common
control with Subtenant.
14. BROKERS. Each of Sublandlord and Subtenant represents and warrants
that it has neither consulted nor negotiated with any broker or finder with
regard to the Sublease Premises or this Sublease other than Helmsley Spear and
Colliers ABR (the "BROKERS"). Each of Sublandlord and Subtenant agrees to
indemnify, defend and save the other harmless from and against any claims for
fees and commissions (including reasonable attorneys' fees) from anyone claiming
to have dealt with Sublandlord or Subtenant, as the case may be, other than the
Brokers, in connection with the Sublease Premises or this Sublease. Sublandlord
shall pay the commission due the Brokers in accordance with a separate
agreement.
15. NOTICES. All notices and demands shall be deemed given upon (i)
transmission if by telecopy (with electronic confirmation of receipt) prior to
5:00 p.m. EST on any business, otherwise on the next following business day,
(ii) on the day of delivery if delivered personally, (iii) one day after
depositing with a reputable overnight courier, or (iv) three (3) days after
mailing if sent by certified mail, return receipt requested. All notices and
demands to Sublandlord shall be deemed sufficiently given to Sublandlord in
accordance with the first sentence of this Paragraph 15, when delivered to
Sublandlord at the address set forth at the beginning of this Sublease, or at
such other address as Sublandlord shall from time to time designate in a notice
given hereunder to Subtenant. All notices and demands to Subtenant shall be
deemed sufficiently given when delivered to Subtenant as set forth below or at
such other address as Subtenant shall from time to time designate in a notice
given hereunder to Sublandlord.
Address of Subtenant: Xxxxxx Interactive Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxx, Chief
Financial Officer
With a copy to: Xxxxxx Beach LLP
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X.
Xxxx, Esq.
16. QUIET ENJOYMENT. Upon payment by Subtenant of all rents herein
provided, and upon observance and performance of all the covenants, terms and
conditions on Subtenant's part to be observed or performed, Subtenant may
peaceably and quietly hold and enjoy the
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Sublease Premises, for the term set forth herein, subject to the terms and
conditions of this Sublease and of the Master Lease, without hindrance,
ejection, molestation or interruption.
17. SURRENDER.
A. Removal of Improvements. All leasehold improvements installed
in the Sublease Premises by Subtenant shall remain upon and be surrendered with
the Sublease Premises unless Sublandlord, by notice to Subtenant not later than
twenty (20) days prior to the termination of this Sublease, elects to have them
removed by Subtenant. All such leasehold improvements which Sublandlord elects
to have removed from the Sublease Premises by Subtenant shall be removed prior
to the termination of this Sublease, at Subtenant's sole cost and expense.
B. Condition on Surrender. Upon the expiration or sooner termination
of the term of this Sublease, Subtenant shall vacate the Sublease Premises, and
leave them in broom-clean condition and in good order and repair except for
ordinary wear and tear. To the extent permitted by the Master Lease, Subtenant
shall have the right, prior to the expiration or sooner termination of this
Sublease, to remove, at Subtenant's cost and expense, any and all trade fixtures
and other personal property of Subtenant. Any of Subtenant's personal property
that remain in the Sublease Premises after the termination of this Sublease
shall be deemed to have been abandoned and either may be retained by Sublandlord
as its property or may be disposed of in such manner as Sublandlord may see fit.
Any expenses incurred by Sublandlord in removing or disposing of Subtenant's
personal property shall be reimbursed to Sublandlord by Subtenant within five
(5) business days after demand.
C. Hold Over. Subtenant shall have no right to occupy the Sublease
Premises or any portion thereof after the expiration of this Sublease or after
the termination of this Sublease or Subtenant's right to possession in the event
of Subtenant's default hereunder. If Subtenant remains in possession of the
Sublease Premises or any part thereof beyond the Expiration Date or sooner
termination of this Sublease, Sublandlord may exercise any and all remedies
available to it at law or in equity to recover possession of the Sublease
Premises and to recover the "Holdover Rent," and the "Holdover Expenses," both
as defined herein. If Subtenant remains in possession of the Sublease Premises
or any part thereof beyond the Expiration Date or sooner termination of this
Sublease, such occupancy shall be a tenancy-at-sufferance and Subtenant shall
pay, as minimum damages and not as a penalty, a monthly rental at a rate equal
to the holdover rent payable by Sublandlord to Master Landlord under the Master
Lease (the "HOLDOVER RENT"). In addition, Subtenant shall indemnify and hold
Sublandlord harmless with respect to attorneys' fees and out-of-pocket expenses
incurred by reason of or due to Subtenant's holding over (the "HOLDOVER
EXPENSES"). The acceptance by Sublandlord of any lesser sum shall be construed
as payment on account and not in satisfaction of damages for such holding over.
No acceptance by Sublandlord of any rent during or for any period following the
expiration or termination of this Sublease shall operate or be construed as an
extension or renewal of this Sublease. Subtenant acknowledges that it is
critical that Subtenant surrender the Sublease Premises on or before the
Expiration Date in accordance with the terms of this Sublease. Subtenant
expressly waives, for itself and for any person claiming through or under
Subtenant, any rights that Subtenant or any such person may have under the
provisions of Section 2201 of
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the New York Civil Practice Law and Rules and of any similar or successor law of
same import then in force, in connection with any holdover proceedings that
Sublandlord may institute to enforce the provisions of this Section 17.
18. INSURANCE AND INDEMNIFICATION.
A. Insurance Requirements. Subtenant shall procure, at Subtenant's
sole cost and expense, and keep in effect from the date of this Sublease and at
all times until the end of the Term the following:
(1) Property / Business Interruption Insurance. Property/Business
Interruption Insurance written on an All Risk or Special Perils form, with
coverage for broad form water damage including sprinkler leakage, at replacement
cost value and with a replacement cost endorsement covering all of Subtenant's
business and trade fixtures, equipment, movable partitions, furniture,
merchandise and other personal property within the Sublease Premises and any
leasehold improvements performed by or for the benefit of Subtenant.
(2) Liability Insurance. Combined Commercial General Liability and
Excess Liability insurance covering bodily injury and property damage liability
occurring in or about the Sublease Premises or arising out of the use and
occupancy of the Sublease Premises, and any areas adjacent thereto, and the
business operated by Subtenant or by any other occupant of the Sublease
Premises. Such insurance shall include contractual liability coverage insuring
all of Subtenant's indemnity obligations under this Sublease. Such coverage
shall have a minimum combined single limit of liability of at least Five Million
Dollars ($5,000,000.00), and a minimum general aggregate limit of Five Million
Dollars ($5,000,000.00). All such policies shall be written to apply to all
bodily injury (including death), property damage or loss, personal and
advertising injury and other covered loss, however occasioned, occurring during
the policy term, shall be endorsed to add Sublandlord and Master Landlord and
any party holding an interest to which this Sublease may be subordinated as an
additional insured, and shall provide that such coverage shall be "PRIMARY" and
non-contributing with any insurance maintained by Sublandlord or Master
Landlord, which shall be excess insurance only. Such coverage shall also contain
endorsements including employees as additional insureds if not covered by
Subtenant's Commercial General Liability Insurance. All such insurance shall
provide for the severability of interests of insureds; and shall be written on
an "OCCURRENCE" basis, which shall afford coverage for all claims based on acts,
omissions, injury and damage, which occurred or arose (or the onset of which
occurred or arose) in whole or in part during the policy period.
(3) Workers' Compensation and Employers' Liability Insurance.
Workers' Compensation Insurance as required by any Regulation, and Employers'
Liability Insurance in amounts not less than Five Hundred Thousand Dollars
($500,000) each accident for bodily injury by accident; Five Hundred Thousand
Dollars ($500,000) policy limit for bodily injury by disease; and Five Hundred
Thousand Dollars ($500,000) each employee for bodily injury by disease.
(4) Alterations Requirements. With respect to any Alterations to be
performed by or on behalf of Subtenant, Subtenant shall deliver to Sublandlord,
prior to
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EXECUTION COPY
commencing such Alterations (i) evidence satisfactory to Sublandlord that
Subtenant carries "Builder's Risk" insurance covering construction of such
Alterations in an amount and form approved by Sublandlord, (ii) such other
insurance as Sublandlord shall nondiscriminatory require, and (iii) a lien and
completion bond or other security in form and amount satisfactory to
Sublandlord.
(5) General Insurance Requirements. All coverage described in
this Paragraph 18 shall be endorsed to (i) provide Sublandlord with thirty (30)
days' notice of cancellation or change in terms; and (ii) waive all rights of
subrogation by the insurance carrier against Landlord. If at any time during the
Term the amount or coverage of insurance which Tenant is required to carry under
this Paragraph 18 is, in Sublandlord's reasonable judgment, materially less than
the amount or type of insurance coverage typically carried by owners or tenants
of properties located in the general area in which the Sublease Premises are
located which are similar to and operated for similar purposes as the Sublease
Premises or if Subtenant's use of the Sublease Premises should change with or
without Sublandlord's consent, Sublandlord shall have the right to require
Subtenant to increase the amount or change the types of insurance coverage
required under this Paragraph 18. All insurance policies required to be carried
by Subtenant under this Sublease shall be written by companies rated A X or
better in "Best's Insurance Guide" and authorized to do business in the State of
New York. Subtenant shall deliver to Sublandlord on or before the Term
Commencement Date, and thereafter at least thirty (30) days before the
expiration dates of the expired policies, a certificate(s) evidencing the same
issued by the insurer hereunder; and, if Subtenant shall fail to procure such
insurance, or to deliver such certificates, Sublandlord may, at Sublandlord's
option and in addition to Sublandlord's other remedies in the event of a default
by Subtenant hereunder, procure the same for the account of Subtenant, and the
cost thereof shall be paid to Sublandlord as Additional Rent.
B. Indemnity. Subtenant and Sublandlord shall indemnify and hold the
other harmless from and against any and all damages, losses or expenses
(including, without limitation, reasonable attorneys' fees) suffered by reason
of the other's breach of or failure to comply with the provisions of this
Sublease or Master Lease or arising from the negligent or improper use or
occupancy by it, its agents, employees, licensees, successors or assigns, or any
such condition created by it, its agents, employees, licensees, successors or
assigns, or any such other negligent act or omission of it, its agents,
employees, licensees, successors or assigns, in or about the Building. Whenever,
pursuant to any of the provisions of the Master Lease incorporated herein,
Subtenant is required to indemnify or defend Sublandlord, Subtenant shall be
required also to indemnify or defend Master Landlord and such other persons as
shall be entitled thereto under the Master Lease. In addition to the foregoing,
Subtenant shall indemnify, defend and hold harmless Sublandlord from and against
any loss, cost, damage, or expense (including reasonable attorneys' fees), or
any claim therefor, arising out of (i) actions taken by Sublandlord at
Subtenant's request, or (ii) any holding over by Subtenant in the Sublease
Premises beyond the expiration or sooner termination of this Sublease, including
any such liability with respect to the entire Master Lease arising solely as a
result of such holding over by Subtenant.
C. Evidence of Insurance. Whenever, pursuant to any provision of the
Master Lease as incorporated herein, Subtenant is required to furnish insurance
(or evidence thereof) to
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EXECUTION COPY
or for Sublandlord, Subtenant also shall be required to furnish such insurance
to or for Master Landlord and such other persons as shall be entitled thereto
under the Master Lease, provided that, in the case of any such other person not
named in the Master Lease, Sublandlord shall have notified Subtenant thereof.
19. SIGNAGE Sublandlord shall use best efforts to obtain Master Landlord's
consent to the placement of a sign on the exterior of the Building, subject to
and in accordance with the requirements of the Master Lease and applicable laws.
20. TAXES. Subtenant shall be solely responsible for payment of any and
all taxes imposed on Subtenant in connection with its occupancy of the Sublease
Premises, if applicable; provided Sublandlord shall be responsible for any gross
receipts tax attributable to its receipt of Rent hereunder.
21. MISCELLANEOUS.
A. Entire Agreement. This Sublease contains the entire agreement and
understanding between the parties with respect to the subject matter hereof.
There are no oral understandings, terms or other conditions, and neither party
has relied upon any representation, express or implied, not contained in this
Sublease. All prior understandings, terms, representations or conditions are
deemed merged in this Sublease. This Sublease cannot be changed or supplemented
orally but only by an agreement in writing signed by both parties hereto.
B. Waiver of Jury Trial. Subtenant hereby waives trial by jury in any
action, proceeding or counterclaim involving any matter whatsoever arising out
of or in any way connected with this Sublease, the relationship of Sublandlord
and Subtenant, Subtenant's use or occupancy of the Sublease Premises or
involving the right to any statutory relief or remedy. Subtenant will not
interpose any counterclaim of any nature in any summary proceeding brought by
Sublandlord except for claims which would be deemed waived if not otherwise
raised or interposed by the Subtenant.
C. Governing Law. This Sublease shall be governed by the laws of the
State of New York.
D. Successors and Assigns. The covenants, terms, conditions,
provisions and undertakings in this Sublease shall extend to and be binding upon
the successors and permitted assigns of the respective parties hereto.
E. Counterparts. This Sublease may be executed in any number of
counterparts and by Sublandlord and Subtenant on separate counterparts, each of
which counterparts when executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
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EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be executed
as of the day and year first above written.
SUBLANDLORD:
THE XXXXXX PATTERN COMPANY
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
SUBTENANT:
XXXXXX INTERACTIVE, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
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EXECUTION COPY
EXHIBIT "A"
THE MASTER LEASE
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LEASE MODIFICATION AND
PARTIAL SURRENDER OF LEASE AGREEMENT
Agreement made this day of January, 2000, between Xxxxx X. Xxxxx
Associates, Inc. as agent for Spring and Americas Associates, a New York limited
partnership and Xxxxxx X. Mount and Xxxxx X. Xxxxx, as Tenants in Common
(hereinafter collectively referred to as "Landlord"), having a collective office
at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, 00000, and Butterick Company, Inc., a
Delaware corporation (hereinafter referred to as "Tenant"), having its place of
business at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000.
WITNESSETH:
WHEREAS, by lease dated August 16, 1988, (the "Lease") Landlord leased to
Tenant certain premises consisting of the 5th, 6th, 7th, 8th and 12th floors and
a portion of the 13th floor (collectively, the "Entire Premises") in the
building known as 161 Avenue of the Americas (the "building"), as more
particularly described in "Exhibit A" of the said Lease; and
WHEREAS, by Lease Modification and Partial Surrender of Lease Agreement
dated July 12, 1995, Tenant surrendered the Thirteenth (13th) floor portion of
the Entire Premises; and
WHEREAS, by Lease Modification and Partial Surrender of Lease Agreement
dated May 24, 1996, Tenant surrendered the northerly side of the Fifth (5th)
floor portion of the Entire Premises, consisting of 8,700 rentable square feet;
and
WHEREAS, by Lease Modification and Partial Surrender of Lease Agreement
dated March 21, 1997, Tenant surrendered the southerly side of the Fifth (5th)
floor portion of the Entire Premises, consisting of 9,750 rentable square feet;
and
WHEREAS, by Lease Extension and Modification Agreement dated September 26,
1997, Tenant surrendered the entire Eighth (8th) floor portion of the Entire
Premises, consisting of 18,450 rentable square feet and simultaneously extended
the term of the Lease for an additional twelve (12) years through April, 30,
2012; and
WHEREAS, Tenant now desires to surrender a portion of the Entire Premises,
consisting of the entire Twelfth (12th) floor thereof (the "Additional Surrender
Premises"), which consists of 18,450 rentable square feet, and the Landlord is
willing to accept such surrender, pursuant to the terms and conditions
hereinafter set forth;
NOW,THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, it is hereby agreed by the parties hereto as follows:
1. Tenant shall, at its sole cost and expense, (1) remove from the
Additional Surrender Premises all of its furnishings, equipment and personalty
and (2) separate the electrical service of the Additional Surrender Premises
from the balance of the Tenant's electrical service, such that the electrical
service of the Additional Surrender Premises shall consist of 800 amps, serviced
by its own submeter.
2. Tenant agrees to perform the obligations listed in Paragraph 1 above,
surrender possession of the Additional Surrender Premises to the Landlord, broom
clean and in good condition, with the intent and purpose that the terms and
provisions of the Lease, as to the Additional Surrender Premises, shall be
wholly extinguished. In furtherance thereof, the Tenant gives, grants and
surrenders unto the Landlord and its successors and assigns, the Additional
Surrender Premises and all of its right, title and interest therein, TO HAVE AND
TO HOLD unto the Landlord, its successors and assigns, for the remainder of the
term of the Lease, and inclusive of all rights of renewal, extension or
occupancy thereunder. The date on which all of the foregoing shall occur will be
April 30, 2000 and will hereinafter be referred to as the "Effective Date".
(1)
3. The Landlord hereby accepts the surrender of the Additional Surrender
Premises as of the Effective Date on the terms and conditions set forth herein.
4. The Tenant warrants and covenants on behalf of itself and its
successors and assigns that it has not done or suffered anything whereby the
Additional Surrender Premises is now encumbered or burdened in any way
whatsoever; that it is the tenant under the Lease; and that it has the full
right, power and authority to enter into this Agreement. The foregoing
warranties and covenants shall be construed so that each is also made on and as
of the Effective Date.
5. As of the Effective Date, the Landlord and the Tenant mutually release
one another and their respective successors and assigns from any and all
obligations thereafter arising as to the Additional Surrender Premises under the
Lease, except those arising hereunder.
6. Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, then, in that event as of the Effective
Date, Tenant's annual rent, sometimes referred to as "base rent", shall be
modified to be as follows:
From May 1, 2000 to April 30, 2004: payable
mo.;
From May 1,2004 to April 30, 2007: payable
mo.;
From May 1, 2007 to April 30, 2010: payable
mo.;
From May 1, 2010 to April 30, 2012: payable
mo.
Said base rent, as modified, shall be payable in advance without demand therefor
on the first day of each month for the balance of the Lease term, in lawful
money of the United States, together with, when due or demanded, such other sums
as are payable in accordance with said Lease by the Tenant as additional rent.
7. Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, then, in that event, commencing on the
first day of the first calendar month immediately following the Effective Date,
for purposes of calculating Tenant's "proportionate share", Article
Thirty-Eighth in the said Lease is hereby modified and Tenant's new total square
footage (comprising the entire sixth (6th) and seventh (7th) floors) is deemed
to be square feet and Tenant's new proportionate share is deemed to be 12.96%.
8. Provided that Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, then in that event, Landlord shall provide
a work allowance to Tenant in the amount of [ILLEGIBLE]. The said work allowance
shall be paid by Landlord to Tenant as follows:
a) [ILLEGIBLE] as an advance, upon execution of this Agreement by
the parties hereto;
b) [ILLEGIBLE] on the Effective Date as provided in this Agreement;
c) Notwithstanding the fact of the receipt by Tenant of the One
Hundred [ILLEGIBLE] advance payment of the work allowance from Landlord. Tenant
shall only be entitled to the said payment if the Effective Date has occurred on
or before May 31, 2000;
(2)
d) If the Effective Date has not occurred on or before the outside
date, May 31, 2000, time being of the essence with respect to this date, then in
that event, Tenant shall be deemed to be in material default under the terms of
the Lease and Landlord shall have all of the rights and remedies with respect to
the said default as are provided in the Lease with respect to a default by
Tenant in the payment of fixed or additional rent with the time having expired
to cure said default.
9. Except as modified herein, the said Lease is in all respects ratified
and confirmed.
10. This Lease Modification and Partial Surrender of Lease Agreement shall
become effective only when it has been signed by a duly authorized
representative of both of the parties hereto and delivered, fully executed, by
the Landlord to the Tenant, and Landlord must have a fully executed Lease
Agreement with New York University for the Additional Surrender Premises.
IN WITNESS WHEREOF, Xxxxx X. Xxxxx Associates, Inc., as agent for Spring
and Americas Associates a New York Limited Partnership, and Xxxxxx X. Mount and
Xxxxx X. Xxxxx, as Tenants in Common, as Landlord and Butterick Company, Inc.,
as Tenant, have caused this instrument to be executed on the date first above
written.
Witness as to Landlord: LANDLORD
XXXXX X. XXXXX ASSOCIATES, INC.
Agent for Spring and Americas Associates,
a New York Limited Partnership,
Xxxxxx X. Mount and Xxxxx X. Xxxxx, as
Tenants in Common
[ILLEGIBLE] /s/ Xxxxxxx Xxxxxxxxxx
--------------------------- ---------------------------
Xxxxxxx Xxxxxxxxxx
Executive Vice President
Witness as to Tenant: TENANT
BUTTERICK COMPANY, INC.
[ILLEGIBLE]
___________________________ ---------------------------
Name:
Title:
(3)
LEASE EXTENSION AND MODIFICATION
AGREEMENT
Agreement made this 26th day of September 1997, between Xxxxx X. Xxxxx
Associates, Inc., as agent for Spring and Americas Associates, a New York
limited partnership and Xxxxxx X. Mount and Xxxxx X. Xxxxx, as Tenants in Common
(hereinafter collectively referred to as "Landlord"), having a collective office
at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, 00000, and Butterick Company, Inc., a
Delaware corporation (hereinafter referred to as "Tenant"), having its place of
business at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000.
WITNESSETH:
WHEREAS, by lease dated August 16, 1988, (the "Lease") Landlord leased to
Tenant certain premises consisting of the 5th, 6th, 7th, 8th and 12th floors and
a portion of the 13th floor (collectively, the "Entire Premises") in the
building known as 161 Avenue of the Americas (the "building"), as more
particularly described in "Exhibit A" of the said Lease; and
WHEREAS, by Lease Modification and Partial Surrender of Lease Agreement
dated July 12, 1995, Tenant surrendered the Thirteenth (13th) floor portion of
the Entire Premises; and
WHEREAS, by Lease Modification and Partial Surrender of Lease Agreement
dated May 24,1996, Tenant surrendered the northerly side of the Fifth (5th)
floor portion of the Entire Premises, consisting of 8,700 rentable square feet;
and
WHEREAS, by Lease Modification and Partial Surrender of Lease Agreement
dated March 21,1997, Tenant surrendered the southerly side of the Fifth (5th)
floor portion of the Entire Premises, consisting of 9,750 rentable square feet;
and
WHEREAS, Tenant now desires to surrender a portion of the Entire Premises,
consisting of the entire Eighth (8th) floor thereof (the "Additional Surrender
Premises"), which consists of 18,450 rentable square feet, and the Landlord is
willing to accept such surrender, pursuant to the terms and conditions
hereinafter set forth; and
WHEREAS, Landlord and Tenant both desire to extend the term of the lease
for an additional twelve (12) years;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, it is hereby agreed by the parties hereto as follows:
1. Tenant shall, at its sole cost and expense, remove from the Additional
Surrender Premises all of its furnishings, fixtures and equipment, demolish the
existing installation (and remove the debris resulting therefrom), leaving only
building systems intact. Tenant shall arrange for the removal and disposal of
any and all asbestos from the Additional Surrender Premises in accordance with
all applicable laws, rules and regulations.
2. Tenant agrees to perform the obligations listed in Paragraph 1 above,
surrender possession of the Additional Surrender Premises to the Landlord, broom
clean and in good condition, on or about December 31, 1997, with the intent and
purpose that the terms and provisions of the Lease, as to the Additional
Surrender Premises, shall be wholly extinguished. In furtherance thereof, the
Tenant gives, grants and surrenders unto the Landlord and its successors and
assigns, the Additional Surrender Premises and all of its right, title and
interest therein, TO HAVE AND TO HOLD unto the Landlord, its successors and
assigns, for the remainder of the term of the Lease, and inclusive of all rights
of renewal, extension or occupancy thereunder. The date on which all of the
foregoing occurs is hereinafter referred to as the "Effective Date".
3. The Landlord hereby accepts the surrender of the Additional Surrender
Premises as of the Effective Date on the terms and conditions set forth herein.
4. The Tenant warrants and covenants on behalf of itself and its
successors and assigns that it has not done or suffered anything whereby the
Additional Surrender Premises is now encumbered or burdened in any way
whatsoever; that it is the tenant under the Lease; and that it has the full
right, power and authority to enter into this Agreement. The foregoing
warranties and covenants shall be construed so that each is also made on and as
of the Effective Date.
5. As of the Effective Date, the Landlord and the Tenant mutually release
one another and their respective successors and assigns from any and all
obligations thereafter arising as to the Additional Surrender Premises under the
Lease, except those arising hereunder.
6. Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, then, in that event as of the Effective
Date, Tenant's annual rent, sometimes referred to as "base rent", shall be
modified to be as follows:
Said base rent, as modified, shall be payable in advance without demand therefor
on the first day of each month for the balance of the Lease term, in lawful
money of the United States, together with, when due or demanded, such other sums
as are payable in accordance with said Lease by the Tenant as additional rent.
7. Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, then, in that event, commencing on the
first day of the first calendar month immediately following the, Effective Date,
for purposes of calculating Tenant's "proportionate share", Article
Thirty-Eighth in the said Lease is hereby modified and Tenant's new total square
footage (comprising the entire sixth (6th), seventh (7th) and twelfth (12th)
floors) is deemed to be square feet and Tenant's new proportionate share is
deemed to be 19.44%.
8. Paragraph Eighteenth of the subject Lease is hereby modified at section
6, which appears in Rider No. 2 of the Lease, by adding the following
sub-section: (h) Notwithstanding any provision to the contrary which may be
contained in this Paragraph Eighteenth, in the case of an assignment or a
subletting for which the Landlord's consent is required, then, in that event,
within sixty (60) days of receipt by Landlord of the written notification as
hereinabove required with respect thereto, the Landlord may notify Tenant of its
determination to recapture that portion of Tenant's premises intended for
assignment or subletting, with the concomitant pro rata reduction in Tenant's
rent and proportionate share. Failure on the part of Landlord to notify Tenant
of its determination within the said
sixty (60) day period shall be deemed to be a waiver by Landlord of its right to
recapture that portion of the Tenant's premises intended for assignment or
subletting.
9. Landlord agrees to provide a work allowance to Tenant in the amount of
which Tenant agrees to spend on making improvements to its premises. Such work
allowance shall be paid by Landlord to Tenant promptly after the following has
occurred: (a) completion of all renovation work to the premises in accordance
with Paragraph Fourth of the subject Lease, with copies of paid invoices
delivered to Landlord; and (b) Tenant has completed all payments to the
contractor(s) involved. In no event shall the said work allowance be paid by
Landlord prior to the Effective Date of this Agreement.
10. Except as modified herein, the said lease is in all respects ratified
and confirmed.
11. This Lease Extension and Modification Agreement shall become effective
only when it has been signed by a duly authorized representative of both of the
parties hereto and delivered, fully executed, by the Landlord to the Tenant.
IN WITNESS WHEREOF, Xxxxx X. Xxxxx Associates, Inc., as agent for Spring
and Americas Associates a New York Limited Partnership, and Xxxxxx X. Mount and
Xxxxx X. Xxxxx, as Tenants in Common, as Landlord and Butterick Company, Inc.,
as Tenant, have caused this instrument to be executed on the date first above
written.
Witness as to Landlord: LANDLORD
XXXXX X. XXXXX ASSOCIATES, INC.
Agent for Spring and Americas Associates,
a New York Limited Partnership,
Xxxxxx X. Mount and Xxxxx X. Xxxxx, as
Tenants in Common
[ILLEGIBLE] /s/ Xxxxxxx Xxxxxxxxxx
--------------------------- ---------------------------
Xxxxxxx Xxxxxxxxxx
Executive Vice President
Witness as to Tenant: TENANT
BUTTERICK COMPANY, INC.
[ILLEGIBLE] [ILLEGIBLE]
--------------------------- ---------------------------
Name:
Title:
EXECUTIVE V.P.
LEASE MODIFICATION AND
PARTIAL SURRENDER OF LEASE AGREEMENT
Agreement made this 21st day of March, 1997, between Xxxxx X. Xxxxx
Associates, Inc., as agent for Spring and Americas Associates, a New York
limited partnership and Xxxxxx X. Mount and Xxxxx X. Xxxxx, as Tenants in Common
(hereinafter collectively referred to as "Landlord"), having a collective office
at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, 00000, and Butterick Company, Inc., a
Delaware corporation (hereinafter referred to as "Tenant"), having its place of
business at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000.
WITNESSETH:
WHEREAS, by lease dated August 16, 1988, (the "Lease") Landlord leased to
Tenant certain premises consisting of the 0xx, 0xx,0xx, 0xx and 12th floors and
a portion of the 13th floor (collectively, the "Entire Premises") in the
building known as 161 Avenue of the Americas (the "building"); as more
particularly described in "Exhibit A" of the said Lease; and
WHEREAS, by Lease Modification and Partial Surrender of Lease Agreement
dated July 12, 1995, Tenant surrendered the Thirteenth (13th) floor portion of
the Entire Premises; and
WHEREAS, by Lease Modification and Partial Surrender of Lease Agreement
dated May 24,1996, Tenant surrendered the northerly side of the Fifth (5th)
floor portion of the Entire Premises, consisting of 8,700 rentable square feet;
and
WHEREAS, Tenant now desires to surrender a portion of the Entire Premises,
consisting of the balance of the 5th floor thereof (the "Premises"), which
consists of 9,750 rentable square feet, as more particularly described on
"Exhibit A" attached hereto and made a part hereof, and the Landlord is willing
to accept such surrender, pursuant to the terms and conditions hereinafter set
forth;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, it is hereby agreed by the parties hereto as follows:
1. Tenant shall, at its sole cost and expense, be responsible and arrange
for:
(a) the demolition of the existing installation and the removal of
the debris resulting therefrom, leaving only building systems intact. Tenant
shall be responsible and arrange for all such demolition and debris removal to
be done in accordance with any and all applicable governmental laws and
regulations.
(b) the separation of the electrical service of the Premises from
the balance of the Butterick Co.'s electric service such that the electric
service for the Premises shall consist of 400 amps, serviced by its own
submeter.
(c) the demolition of the internal staircase between the Tenant's
fifth (5th) floor Premises and sixth (6th) floor portion of the Entire Premises
Tenant shall also be responsible and arrange for the restoration of the concrete
floor and ceiling areas which shall be required as a result of the demolition of
the said internal staircase.
2. Tenant agrees to perform the obligations listed in Paragraph 1 above,
surrender possession of the Premises to the Landlord, broom clean and in good
condition, with the intent and purpose that the terms and provisions of the
Lease, as to the Premises, shall be wholly extinguished. In furtherance thereof,
the Tenant gives, grants and surrenders unto the Landlord and its successors and
assigns, the Premises and all of its right, title and interest therein, TO HAVE
AND TO HOLD unto the Landlord, its successors and assigns, for the remainder of
the term of the Lease, and inclusive of all rights of renewal, extension or
occupancy thereunder. The date on which all of the foregoing occurs is
hereinafter referred to as the "Effective Date".
Date on the terms and conditions set forth herein.
4. The tenant warrants and covenants on behalf of itself and its
successors and assigns that it has not done or suffered anything whereby the
Premises is now encumbered or burdened in any way whatsoever, that it is the
tenant under the Lease; and that it has the full right, power and authority to
enter into this agreement. The foregoing warranties and covenants shall be
construed so that each is also made on and as of the Effective Date.
5. Effective on the Effective Date, the Landlord and the Tenant mutually
release one another and their respective successors and assigns from any and all
obligations as to the Premises arising under the Lease (except those arising
hereunder) from and after the Effective Date.
6. Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, then, in that event, as of, Tenant's annual
rent, sometimes referred to as "base rent", shall be modified to be as follows:
Said base rent, as modified, shall be payable in advance without demand therefor
on the first day of each month for the balance of the lease term, in lawful
money of the United States, together with, when due or demanded, such other sums
as are payable in accordance with said lease by the Tenant as additional rent.
7. Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, then, in that event, commencing July 1,
1997, for purposes of calculating Tenant's "proportionate share", Article
Thirty-Eighth in the said Lease is hereby modified and Tenant's new total square
footage is deemed to be [ILLEGIBLE] and Tenant's new proportionate share is
deemed to be 25.92%
8. Except as modified herein, the said lease is in all respects ratified
and confirmed.
9. This Lease Modification and Partial Surrender of Lease Agreement shall
become . effective only when it has been signed by a duly authorized
representative of both of the parties hereto and delivered, fully executed, by
the Landlord to the Tenant.
IN WITNESS WHEREOF, Xxxxx X. Xxxxx Associates, Inc., as agent for Spring a
Americas Associates and Xxxxxx X. Mount and Xxxxx X. Xxxxx, as Tenants in Common
as Landlord and Butterick Company, Inc., as Tenant, have caused this instrument
to executed on the date first above written.
Witness as to Landlord: LANDLORD
XXXXX X. XXXXX ASSOCIATES, INC.
Agent for Spring and Americas
Associates, Xxxxxx X. Mount and
Xxxxx X. Xxxxx, as Tenants in Common
/s/ [ILLEGIBLE] /s/ Xxxxxxx Xxxxxxxxxx
--------------------------- ---------------------------
Xxxxxxx Xxxxxxxxxx
Executive Vice President
Witness as to Tenant: TENANT
Butterick Company, Inc.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
--------------------------- ---------------------------
Name:
Title:
LEASE MODIFICATION AND
PARTIAL SURRENDER OF LEASE AGREEMENT
Agreement made this 24 day of May, 1996, between Xxxxx X. Xxxxx
Associates, as agent for Spring and Americas Associates, a New York limited
partnership and [ILLEGIBLE] J. Mount and Xxxxx X. Xxxxx, as Tenants in Common
(hereinafter collectively referred as "Landlord"), having a collective office at
161 Avenue of the Americas, New York, 10 and Butterick Company, Inc., a Delaware
corporation (hereinafter referred to as ("Tenant") having its place of business
at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000.
WITNESSETH:
WHEREAS, by lease dated August 16, 1988, (the "Lease") Landlord lease
Tenant certain premises consisting of the 5th, 6th, 7th, 8th and 12th floors and
a [ILLEGIBLE] of the 13th floor (collectively, the "Entire Premises") in the
building known as 161 [ILLEGIBLE] of the Americas (the "building"), as more
particularly described in "Exhibit A" of the [ILLEGIBLE] Lease; and
WHEREAS, by Lease Modification and Partial Surrender of Lease Agreement
[ILLEGIBLE] July 12, 1995, Tenant surrendered the (13th) floor portion of the
Entire Premises; and [ILLEGIBLE]
WHEREAS, Tenant now desires to surrender a portion of the Entire
[ILLEGIBLE] consisting of the northerly portion of the 5th floor thereof (the
"Premises"), as [ILLEGIBLE] particularly described on "Exhibit B" attached
hereto and made a part hereof, and [ILLEGIBLE] Landlord is willing to accept
such surrender, pursuant to the terms and condition hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
hereby acknowledged, it is hereby agreed by the parties hereto as follows:
1. Tenant agrees to surrender possession of the premises to the Landlord,
[ILLEGIBLE] clean and in good condition within ten (10) days, time In respect
thereof being of [ILLEGIBLE] essence, from the full execution of this Lease
Modification and Partial Surrender of Lease Agreement.
2. Tenant agrees, within thirty (30) days, time in respect thereof being
of the essence, from the full execution of this Lease Modification and Partial
Surrender of Lease Agreement, at its sole cost and expense to:
(a) be responsible and arrange for the construction of a fire-rated
demising wall to separate that portion of Tenant's 5th floor Premises which
Tenant shall yacate pursuant to this Agreement, from that southerly portion of
the 5th floor Premises which shall remain part of Tenant's Entire Premises. Said
demising wall to be built according to New York City Building Code extending
from floor to ceiling and providing a minimum of 1 hour rating and acoustically
insulated with a minimum of 2 1/2" acoustical butts; and
(b) be responsible and arrange for the separation of electrical
service on the 5th floor such that the existing electric service shall be
divided into two (2) 400 amp services. One of said 400 amp services shall be
made available, ready to accept a submeter, for the northerly portion of the 5th
floor Premises which Tenant desires to surrender. The second of the said 400 amp
services shall service the southerly portion of the 5th floor Premises which
shall remain part of Tenant's Entire Premises and Tenant's electrical
consumption therefrom shall be measured by Tenant's submeter; and
Tenant agrees to perform the obligations listed in Paragraph 1 and
Paragraph 2 (a&b) above, with the intent and purpose that the terms and
provisions of the Lease, as to the Premises, shall be wholly extinguished. In
furtherance thereof, the Tenant gives, grants and surrenders unto the Landlord
and its successors and assigns, the Premises and all of its right, title and
interest therein, TO HAVE AND TO HOLD unto the Landlord, its successors and
assions for the remainder of the term of the lease [ILLEGIBLE].
[ILLEGIBLE]
PARTIAL SURRENDER OF LEASE AGREEMENT
[ILLEGIBLE]
WITNESSETH:
[ILLEGIBLE]
[ILLEGIBLE]
[ILLEGIBLE]
NOW, THEREFORE, for good and valuable consideration, the receipt of which
hereby acknowledged, it is hereby agreed by the parties hereto as follows:
[ILLEGIBLE]
[ILLEGIBLE]
[ILLEGIBLE]
[ILLEGIBLE]
[ILLEGIBLE]
all rights renewal, extension or occupancy thereafter. The date on which all
of the foregoing [ILLEGIBLE] is hereinafter referred to as the "Effective
Date".
2. In consideration of the obligations and expenses to be borne by
Landlord arising under this Agreement, Tenant agrees to pay to Landlord the sum
of,
as follows: 28.69% of the said amount, i.e.,
upon
execution hereof; 15.55% of said amount,
thirty (30) days from execution, 15.55% sixty (60)
days from execution; 13.33% of said amount, i.e.,
on March 1, 1997, 13,33% on March 1, 1998, and 13.33% on March 1, 1999.
3. Tenant hereby represents and warrants that the air-conditioning system
now servicing the northerly portion of the 5th floor is in good working order.
Landlord and Tenant covenant and agree that they shall share the costs of any
repairs or replacement to the said air-conditioning system other than those
which are covered by a standard maintenance service contract, on a 50%-50%
basis, for the period commencing on the Effective Date hereof, through April 30,
2000.
4. The Landlord hereby accepts the Surrender of the Premises as of the
Effective Date on the terms and conditions set forth herein.
5. The Tenant warrants and covenants on behalf of itself and its
successors and assigns that it has not done or suffered anything whereby the
Premises is now encumbered or burdened in any way whatsoever; that it is the
tenant under the Lease; and that it has the full right, power and authority to
enter into this Agreement. The foregoing warranties and covenants shall be
construed so that each is also made on and as of the Effective Date.
6. Effective on the Effective Date, the Landlord and the Tenant mutually
release one another and their respective successors and assigns from any and all
obligations as to the Premises arising under the Lease (except those arising
hereunder) from and after the Effective Date.
7.Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, as of December 1,1996, Tenant's annual
rent, sometimes referred to as "base rent", shall be modified to be as follows:
Said base rent, as modified, shall be payable in advance without demand therefor
on the first day of each month for the balance of the lease term, in lawful
money of the United States, together with, when due or demanded, such other sums
as are payable in accordance with said lease by the Tenant as additional rent.
8.Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, then, in that event, commencing December 1,
1996, for purposes of calculating Tenant's "proportionate share", Article
Thirty-Eighth in the said Lease is hereby modified and Tenant's new total square
footage is deemed to be and Tenant's new proportionate share is deemed to be
29.34%
9.Except as modified herein, the said lease is in all respects ratified
and confirmed.
10. This Lease Modification and Partial Surrender of Lease Agreement shall
become effective only when it has been signed by a duly authorized
representative of both of the parties hereto and delivered, fully executed, by
the Landlord to the Tenant.
IN WITNESS WHEREOF, Xxxxx X. Xxxxx Associates, Inc., as agent for Spring
and Americas Associates and Xxxxxx X. Mount and Xxxxx X. Xxxxx, as Tenants in
Common, as Landlord and Butterick Company, Inc., as Tenant, have caused this
instrument to be executed on the date first above written.
Witness as to Landlord: LANDLORD
XXXXX X. XXXXX ASSOCIATES, INC.
Agent for Spring and Americas
Associates, Xxxxxx X. Mount and
Xxxxx W, Kazis, as Tenants in Common
/s/ [ILLEGIBLE] /s/ Xxxxxxx Xxxxxxxxxx
--------------------------- ---------------------------
[ILLEGIBLE] Xxxxxxx Xxxxxxxxxx
Executive Vice President
Witness as to Tenant: TENANT
Butterick Company, Inc.
/s/ [ILLEGIBLE] /s/ Xxxxxxx X. Xxxxxxx
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxxx
Signature:
Title: Sr. V. P., Admin
LEASE MODIFICATION AND
PARTIAL SURRENDER OF LEASE AGREEMENT
Agreement made this 12th day of July, 1995, between Xxxxx X. Xxxxx
Associates, inc., as agent for Spring and Americas Associates, a New York
limited partnership and Xxxxxx X. Mount and Xxxxx X. Xxxxx, as Tenants in Common
(hereinafter collectively referred to as the "Landlord"), having a collective
office at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, and Butterick Company,
Inc., a Delaware corporation (hereinafter referred to as the "Tenant"), having
its place of business at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000.
WITNESSETH:
WHEREAS, by lease dated August 16, 1988, (the "Lease") Landlord leased to
Tenant certain premises consisting of the 5th, 6th, 7th, 8th and 12th floors and
a portion of the 13th floor (collectively, the "Entire Premises") in the
building known as 161 Avenue of the Americas (the "building"), as more
particularly described in "Exhibit A" of the said Lease; and
WHEREAS, Tenant desires to surrender a portion of the Entire Premises,
consisting of the portion of the 13th floor thereof (the "Premises"), as more
particularly described on page 6 of "Exhibit A" of the Lease, and the Landlord
is willing to accept such surrender, pursuant to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, it is hereby agreed by the parties hereto as
follows:
1. Tenant shall be responsible and arrange for the demolition of the
existing installation and the removal of the debris resulting therefrom,
leaving only building systems intact. Tenant shall be responsible and arrange
for all such demolition and debris removal to be done in accordance with any and
all applicable governmental laws and regulations.
2. By August 15, 1995, time in respect thereof being of the essence,
the Tenant agrees to surrender possession of the Premises to the Landlord, broom
clean and in good condition, with the intent and purpose that the terms and
provisions of the Lease, as to the Premises, shall be wholly extinguished. In
furtherance thereof, the Tenant gives, grants and surrenders unto the Landlord
and its successors and assigns, the Premises and all of its right, title and
interest therein, TO HAVE AND TO HOLD unto the Landlord, its successors and
assigns, for the remainder of the term of the Lease, and inclusive of all
rights of renewal, extension or occupancy thereunder. The date on which all of
the foregoing occurs is hereinafter referred to as the "Effective Date".
3. The Landlord hereby accepts the Surrender of the Premises as of the
Effective Date on the terms and conditions set forth herein.
4. The Tenant warrants and covenants on behalf of itself and its
successors and assigns that it has not done or suffered anything whereby the
Premises is now encumbered or burdened in any way whatsoever; that it is the
tenant under the Lease; and that it has the full right, power and authority to
enter into this Agreement. The foregoing warranties and covenants shall be
construed so that each is also made on and as of the Effective Date.
5. Effective on the Effective Date, the Landlord and the Tenant mutually
release one another and their respective successors and assigns from any and all
obligations as to the Premises arising
6. Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, as of January 1, 1996, Tenant's annual
rent, sometimes referred to as "base rent", shall be modified to be as follows:
Said base rent, as modified, shall be payable in advance without demand therefor
on the first day of each month for the balance of the lease term, in lawful
money of the United States, together with, when due or demanded, such other sums
as are payable in accordance with said lease by the Tenant as additional rent.
7. Provided Tenant shall have duly and timely observed, fulfilled and
performed its obligations hereunder, then, in that event, commencing January 1,
1996, for purposes of calculating Tenant's "proportionate share", Article
Thirty-Eighth in the said Lease is herby modified and Tenant's new total square
footage is deemed to be and Tenant's new proportionate share is deemed to be
32.40%
8. Except as modified herein, the said lease is in all respects ratified
and confirmed.
9. This Lease Modification and Partial Surrender of Lease Agreement shall
become effective only when it has been signed by a duly authorized
representative of both of the parties hereto and delivered,fully executed, by
the Landlord to the Tenant.
IN WITNESS WHEREOF, Xxxxx X. Xxxxx Associates, Inc., as agent for Spring
and Americas Associates and Xxxxxx J; Mount and Xxxxx X. Xxxxx, as Tenants in
Common, as Landlord and Butterick Company, Inc:, as Tenant, have caused this
instrument to be executed on the date first above written.
Witness as to Landlord LANDLORD
XXXXX X. XXXXX ASSOCIATES, INC.
Agent for Spring and Americas
Associates, Xxxxxx X. Mount and
Xxxxx W, Kazis, as Tenants in
Common
/s/ [ILLEGIBLE] /s/ Xxxxxxx Xxxxxxxxxx
--------------------------- ---------------------------
Xxxxxxx Xxxxxxxxxx
Executive Vice President
Witness as to Tenant: TENANT
Butterick Company, Inc.
/s/ [ILLEGIBLE] /s/ Xxxxxxx X. Xxxxxxx
--------------------------- ---------------------------
Xxxxxxx X. Xxxxxxx
Senior vice President
and Secretary
THIS LEASE made as of the /6 day of August, 1988
between Xxxxx X. Xxxxx Associates, Inc., as Agent for Spring and
America Associates, a New York limited partnership, and Xxxxxx
X. Mount and Xxxxx X. Xxxxx (hereinafter collectively referred
to as the "Landlord")[ILLEGIBLE] having a collective office at
000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
Butterick Company, Inc., a Delaware corporation, (hereinafter
referred to as the "Tenant"), having its place of business at
000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WITNESSETH:
WHEREAS, by lease dated April 3, 1969, the Xxxxxx,
Churchwardens and Vestrymen of Trinity Church ("Trinity") leased
to American Can Company ("Can") certain premises consisting of
the entire 0xx, 0xx, xxxx, 12th, and 13th floors and a portion
of the 9th floor in the building known as 161 Avenue of the
Americas (the "building"); and
WHEREAS, by lease dated October 19, 1970, Trinity leased to
Can certain premises consisting of the entire 5th floor of the
building; and
WHEREAS, by lease dated March 5, 1971, Trinity leased to
Can certain premises consisting of the entire 6th floor of the
building; and
WHEREAS, by letter agreement dated December 26, 1973, all
of the above leases (hereinafter collectively the "Current
Leases"), and others, were amended and modified so as to extend
the term of the Current Leases to and including April 30, 1990
and to increase the aggregate rent payable under the Current
Leases for all of the above-described premises (hereinafter
collectively the "Leased Premises"); and
WHEREAS, by agreement dated March 4, 1974 by and between
Trinity and Xxxxxx X. Mount and Xxxxx X. Xxxxx ("Mount and
Kazis") the lessor's interest in the Current Leases was assigned
by Trinity to Mount and Kazis; and
WHEREAS, subsequently, Spring and America Associates
acquired a portion of the interest of Mount and Kazis in the
Current Leases and became Landlord thereunder with Mount and
Kazis; and
WHEREAS, by assignment dated as of July 7, 1983, Can
assigned to Tenant, all of its right, title and interest as
lessee under the Current Leases; and
WHEREAS, by assignment dated as of July 7, 1983, Tenant
further assigned to BCI Holdings, Inc. ("BCI"), a Delaware
Corporation all of its right, title and interest as lessee under
the Current Leases; and
WHEREAS, by partial surrender of Lease dated January 30,
1985 between Landlord and BCI, the llth floor of the building
was surrendered by BCI and accepted by Landlord, effective
January 31, 1985; and
WHEREAS, on or about April 11, 1985, BCI was merged with
and into Tenant;
NOW, THEREFORE, in consideration of the mutual convenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
GRANT That that Landlord hereby lets and leases to the Tenant, and
PREMISES the Tenant hereby takes and hires from the Landlord, the
following described space: the entire 5th, 6th, 7th, 8th and 12th
floors in the building, as well as a portion of the 13th floor,
all as shown on Exhibit A attached hereto and made a part hereof
(all of the foregoing space hereinafter collectively referred to
as the "premises") with the privilege to the Tenant of using
(subject to such rules and regulations as the Landlord shall from
time to time prescribe) the necessary entrances and appurtenances
to the premises, reserving to the Landlord all other portions of
the building not herein specifically demised, for a term to
TERM commence on the first day of May 1990, at noon, Eastern Time, and
to expire on the thirtieth day of April 2000, at noon, Eastern
Time (or until such term shall sooner cease and expire or be
terminated as hereafter provided), at an annual rental (sometimes
referred to as the "base rent") equal to the aggregate of, on an
annualized basis as of April, 1990 (the last full month of the
term of each of the current Leases), (a) 85.08% of the sum of the
base rent payable pursuant to the granting clause preceding
Section FIRST of each of the Current Leases, (b) 85.08% of the
sum of the additional rent, so- called, payable pursuant to
Section THIRTY-EIGHTH and THIRTY-NINTH of each of the current
Leases, and (c) (monthly). In addition to any other provision
in this lease for an increase in "base rent", commencing in the
Sixth (6th) lease year base rent shall be increased by per
annum. In no event shall base rent be less than [ILLEGIBLE]
(annually) during the first five lease years and no less than
(annually) during the second five lease years. When the base rent
has been determined in accordance with the preceding sentence,
Landlord shall prepare and Landlord and Tenant shall sign and
deliver an agreement, in writing, confirming such base rent, as a
supplement to this Lease. The failure to sign and deliver such
supplement shall not effect the Landlord's right to the base
rent or the amount thereof required to be paid pursuant to the
preceding sentence. Any dispute with regard to this determination
shall be resolved by arbitration as provided in this Lease but
pending such resolutions Tenant shall pay the disputed base rent,
subject to Landlord's obligation to reimburse any excess amount
as determined by such arbitration.
ADDITIONAL Base rent shall be payable in advance without demand therefor, on
RENT the first day of each month during said term, in lawful money of
the United States. Tenant shall also pay, when due or demanded,
such items as shall be provided hereafter are payable by the
Tenant as additional rent. Should the Tenant at the commencement
of the term of this Lease be in default in the payment of rent
(base or additional) to the Landlord pursuant to the terms of any
prior lease with the Landlord, or with a predecessor in interest
of the Landlord, the Landlord may at its option and without
notice thereof to the Tenant, add the amount of such arrears to
any monthly installments of base rent due under this Lease.
(1A)
The next page will be (1B)
COVENANTS THE ABOVE LETTING IS UPON THE FOLLOWING COVENANTS AND
AND CONDITIONS, each and every one of which the Tenant covenants and
CONDITIONS agrees with the Landlord to keep and perform, and the Tenant
agrees that the covenants herein contained on the part of the
Tenant to be performed, shall be deemed conditional limitations,
as well as covenants and conditions:
(1B)
The prior page is 1B
USE FIRST: The Tenant shall use the premises only for
manufacturing, storage and shipping of patterns and the publishing
and allied businesses conducted by the Tenant's Butterick
Division; and receiving materials in connection with the operation
of the business conducted through such division and for such other
purposes as may be lawful and consistent with the other provisions
of this lease. ________________
RENT SECOND: The Tenant shall pay the rent and additional rent as
provided in this lease.
REPAIRS THIRD: (a) The Tenant shall take good care of the premises
MACHINERY and the fixtures, appurtenances, equipment and facilities therein
CLEANING and shall make, as and when needed, all repairs in and about the
AND premises required to keep them in good order and condition which
WASTE repairs shall be equal in quality to the original work.
Provided that the tenant shall not be required to make structural
or exterior repairs or repairs to the portions of the plumbing,
heating and electrical systems of the building which are not
located within the premises except as required by one or more of
the occurrence described in clauses (i) through (iv) below and
provided further that the Tenant shall not be required to repair
conditions at the premises or relating to the fixtures and
facilities wherein which are neither the result of any of the
causes described in clauses (i) through (iv) below nor the result
of the failure on the Tenant's part to take good care of the
premises and such equipment and facilities and which result from
ordinary wear, tear and obsolescence. Which rich repairs shall be
equal in quality to the original work. Should the Tenant fail to
repair any condition in or about the premises or the fixtures,
appurtenances, equipment and facilities therein which is of such a
nature that its neglect would result in damage or danger to the
building, its fixtures, appurtenances, facilities and equipment,
or to its occupants (of which nature the Landlord shall be the
judge) or, in the case of repairs of any other nature, should the
Tenant have failed to make the required repairs or to have begun,
in good faith, the work necessary to make them within five days
after notice from the Landlord of the condition requiring repair,
the Landlord may, in either such case, immediately enter the
premises and make the required repairs at the expense, of the
Tenant. The Landlord may make, at the expense of the Tenant, any
repairs to the building or to its fixtures, appurtenances,
facilities or equipment, whether of a structural or any other
nature, which are required by reason of damage or injury due (i)
to the negligence or the improper acts of the Tenant or its
employees, agents, licensees or visitors; (ii) to the moving, into
or out of the building, of property being delivered to or taken
from the premises;(iii) to the installation, repair or removal of
the property of the Tenant in the premises; or (iv) to the faulty
operation of any machinery, equipment, or facility installed in
the premises by or for the Tenant. The Tenant will pay the cost of
any repairs made by the Landlord pursuant to this paragraph upon
presentation of bills therefor, or the Landlord may, at its
option, add such amounts to any installment or installments of
rent due under this lease and collect the same as additional rent.
The liability of the Tenant under this paragraph Third shall
survive the expiration or other termination of this lease.
MACHINERY (b) If the Tenant shall install or maintain machinery or
manufacturing equipment of any description in the premises, the
operation of which produces noise or vibration which is
transmitted beyond the premises and the Landlord deems it
necessary that the noise or vibration of such machinery or
equipment be diminished, eliminated, prevented or confined to the
premises, the Landlord may give written notice to the Tenant,
requiring that the Tenant provide and install rubber or other
approved settings for absorbing, preventing or decreasing the
noise or vibration of such machinery or equipment within fifteen
days. The judgment of the Landlord of the necessity of such
installation shall be conclusive, and the installation shall be
made in such manner and of such material as the Landlord may
direct. Should the Tenant fail to comply with such request within
fifteen days, the Landlord may do the work necessary to absorb,
prevent or decrease the noise or vibration of such machinery or
equipment and the Tenant will pay to the landlord the cost of such
work upon demand or such cost may, at the option of the Landlord,
be added to any installment or installments of rent under this
lease and shall be payable by the Tenant as additional rent.
CLEANING (c) The premises shall be kept clean and in order by the
AND Tenant, at the Tenant's expense, and to the satisfaction of the
WASTE Landlord. The Tenant shall, at its own expense, clean the interior
and exterior surfaces of the windows at such times as the windows
become dirty to a degree which, in the judgment of the Landlord,
adversely affects the appearance of the building or the premises.
Such window cleaning shall be done in a manner which complies with
the requirements of this lease and all applicable laws and
regulations. The Tenant shall, at its own expense, remove from the
building any and all rubbish, refuse and waste originating in the
premises of the Tenant or cause the same to be removed. The
removal of such refuse, rubbish and waste shall be subject to such
rules and regulations as to time and manner of removal as, in the
judgment of the Landlord, are necessary for the proper operation
of the building. In the event that the Tenant shall fail to clean
the windows or remove its refuse rubbish and waste, such cleaning
or removal may be done by the Landlord, and the Tenant shall pay
to the Landlord the cost of the cleaning of the windows or the
removal of any of the Tenant's refuse, rubbish and waste from the
building. Bills for the same shall be rendered by the Landlord to
the Tenant at such times as the Landlord may elect and shall be
due and payable when rendered, and the amount of such bills shall
be deemed to be, and be paid as, additional rent. Should the
Landlord clean the windows or remove the rubbish of the Tenant and
of other tenants, the cost of such cleaning or removal shall be
apportioned as between the Tenant and such other tenants
respectively on the basis of the number of windows or the
respective approximate quantities of such rubbish and waste as the
case may be. The Landlord's apportionment of such respective
quantities shall be conclusive on the parties.
ALTERATIONS FOURTH: (a) The Tenant shall not make any alteration(other
AND than painting or wall covering)decoration, addition or
FIXTURES improvement in or upon the premises, nor incur any expense
therefor, without having first obtained the written
consent of the Landlord therefor [ILLEGIBLE] Whenever any
alterations, decorations, additions or improvements of the
premises are made by the Tenant, the Tenant shall not, knowingly,
employ or permit to be employed therein any labor which will cause
strikes or labor troubles with other employees in the building
employed by the Landlord or its contractors. All alterations,
decorations, additions or improvements shall be made and installed
in a good and workmanlike manner and shall comply with all
requirements, by law, regulation or rule, of the Federal, State
and City Governments and all subdivisions and agencies thereof,
and with the requirements of the New York Fire Insurance Exchange,
New York Board of Fire Underwriters and all other bodies
exercising similar functions, and shall conform to any particular
requirements of the Landlord expressed in its consent for the
making of any such alterations, decorations, additions, and
improvements. Any such work once begun shall be completed with all
reasonable dispatch, but shall be done at such time and in such
manner as not to interfere with the occupancy of any other tenant
or the progress of any work being performed by or on account of
the Landlord.
(b) All alterations, decorations,(other than painting and wall
coverings) additions or improvements, which may be made or
installed by either of the parties hereto in or upon the premises
(whether made during or prior to the term of this lease or during
the term of any prior lease of the premises made between the
Landlord and the Tenant), except the furniture, trade fixtures,
stock in trade, and like personal property of the Tenant, shall be
conclusively deemed to be part of the freehold and the property of
the Landlord, and shall remain upon the premises, and, upon the
expiration or any termination of the term of this lease, shall be
surrendered therewith as a part thereof, unless the Landlord
shall, prior to the expiration or termination of the term, notify
the Tenant that any or all of such alterations, decorations,
additions or improvements shall be removed, in which event, the
Tenant shall remove the same in accord with the Landlord's notice
at its own cost and expense at or prior to the expiration or
termination of the term. The Tenant, at or prior to the expiration
or any termination of the term of this lease shall, at its own
expense, remove all its furniture, trade fixtures, stock in trade
and like personal property. The Tenant shall restore and repair,
at its own cost and expense, any damage or disfigurement of the
premises occasioned by any such removals or remaining after such
removals, so as to leave the premises in good order and condition
or, the Landlord at its option, may do such restoration and repair
and the Tenant will pay the cost thereof upon demand. If any
furniture, trade fixtures, stock in trade or other personal
property of the Tenant shall not be removed at the expiration or
any termination of this lease, the Landlord, at the Landlord's
option, may treat the same as having been irrevocably abandoned,
in which the Tenant shall have no further right, title or interest
therein and the Landlord may remove the same from the premises,
disposing of them in any way which the Landlord sees fit to do,
and the Tenant shall, on demand, pay to the Landlord the expense
incurred by the Landlord for the removal thereof, as well as the
cost of any restoration of the premises above provided. The
Tenant's obligations under this subdivision (b) of this paragraph
Fourth shall survive the expiration of this lease.
(c) The Landlord may at any time during the term of this
lease, change the arrangement or location of the entrances or
passageways, doors and doorways, and the corridors, elevators,
stairs, toilets or other parts of the building used by the public
or in common by the Tenant and other tenants (including, without
limitation, the conversion of elevators from a manually operated
to an automatic self-service basis) and may alter the facilities,
fixtures, appurtenances and equipment of the building as it may
deem the same advisable, or as it may be required so to do by any
governmental authority, law, rule or regulation. The Landlord may,
after reasonable notice, change the name, street number or
designation by which the building is commonly known.
COMPLIANCE FIFTH: The Tenant shall promptly comply, at the Tenant's own
WITH expense, with all laws, ordinances, regulations and requirements
GOVERNMENTAL of the City, State and Federal Government, and all subdivisions
RULES AND and agencies thereof, and of the New York Fire Insurance Exchange,
REGULATIONS the New York Board of Fire Underwriters, and of any fire insurance
rating organization, and of all other departments, bureaus,
officials, boards and commissions with regard to the premises, or
the use thereof by the Tenant, and (if the premises are situated
on the ground floor) the sidewalks adjoining the same in so far as
such compliance is made necessary by the Tenant's use of the
sidewalks. The Tenant shall not be required to make any structural
or other alterations of the premises which may be required by any
such law, ordinance or regulation or requirement, unless the
requirements of such law, ordinance or regulation are applicable
to the premises by reason of the nature of the Tenant's use of the
sidewalks. The Tenant will not permit the maintenance of any
nuisance upon the premises or permit its employees, licensees or
visitors to do any illegal act therein, or in and about the
building after notice thereof from the Landlord. If any such law,
ordinance, regulation or requirement shall not be promptly
complied with by the Tenant, then the Landlord may, at its option,
enter upon the premises to comply therewith, and should any fine
or penalty be imposed for failure to comply therewith or by reason
of any such illegal act, the Tenant agrees that the Landlord may,
at its option, pay such fine or penalty, which the Tenant agrees
to repay to the Landlord, with interest from the date of payment,
as additional rent.
COMPLIANCE SIXTH: The Tenant and the Tenant's employees, and any other
WITH persons subject to the control of the Tenant, shall well and
LANDLORD'S faithfully observe all the rules and regulations annexed hereto,
RULES and also any and all reasonable rules and regulations affecting
the premises, the building or the equipment, appurtenances,
facilities and services thereof, hereafter promulgated by the
Landlord. The Landlord may at any time, and from time to time,
prescribe and regulate the placing of safes, machinery, quantities
of merchandise and other things, and regulate which elevator and
entrance shall be used by the Tenant's employees, and for the
Tenant's shipping; and may make such other and further rules and
regulations as in its judgment may, from time to time, be needed
or desirable for the safety, care or cleanliness of the building
and for the preservation of good order therein.
LANDLORD'S ACCESS TO THE PREMISES
NINTH: (a) The Tenant shall, without in any way affecting the
Tenant's obligations hereunder, and without constituting any
eviction, permit the Landlord and its agents; (i) at all
reasonable hours, to enter the premises and have access thereto,
for the purpose of inspecting or examining them and to show them
to other persons; and (ii) to enter the premises to make repairs
and alterations, and to do any work on the premises and any work
in connection with excavation or construction on any adjoining
premises or property (including, but not limited to, the shoring
up of the building) and to take in any of the foregoing instances,
any space needed therefor. The Tenant shall permit the
Landlord to erect and maintain ducts, pipes and conduits in and
through the premises. [ILLEGIBLE]
(b) In the event that the premises shall, in the Landlord's
judgment, become substantially vacated before the expiration of
this lease, or in the event the Tenant shall be removed by summary
proceedings, or in the event that, during the last month of the
term, the Tenant shall have removed all or substantially all of
the Tenant's property therefrom, the Landlord may immediately
enter into and upon said premises for the purpose of decorating,
renovating or otherwise preparing same for a new tenant, without
thereby causing any abatement of rent or liability on the
Landlord's part for other compensation, and such acts shall have
no effect upon this lease.
(c) If the Tenant or an officer or authorized employee of the
Tenant shall not be personally present to open and permit an entry
into said premises, at any time, when for any reason an entry
therein shall be necessary or permissible hereunder, the Landlord
or the Landlord's agents, may enter the same by a master key, or
may forcibly enter the same without rendering the Landlord or such
agents liable therefor (if during such entry the Landlord shall
accord reasonable care to the Tenant's property) and without in
any manner affecting the obligations and covenants of this lease,
and in no event shall any such entry by the Landlord or its agents
be deemed an acceptance of a surrender of this lease, either
expressed or implied, nor a waiver by the Landlord of any covenant
of this lease on the part of the Tenant to be performed.
ELECTRIC CURRENT: LIVE STEAM
TENTH: (a) If electric current be supplied by the Landlord,
the Tenant covenants and agrees to purchase the Tenant's
requirements thereof for lighting and power purposes at the
premises from the Landlord or the Landlord's designated agent, on
the terms and at the rates set by the Landlord, such rates not to
exceed the rates specified from time to time during the term of
this lease in the service classification under which the Landlord
purchases electric current from the public utility corporation
serving the part of the city where the building is located. Where
more than one meter measures the service of the Tenant in the
building, the service rendered through each meter may be computed
and billed separately in accord with the rates herein provided
for. No current shall be furnished until the equipment of the
Tenant has been approved by the proper authorities, and after such
approval, no changes shall be made in such equipment without the
written consent of the Landlord. The Tenant shall pay, upon
demand, the bills for electric current furnished and the use of
meters; the Landlord and its agent reserving the right, without
releasing the Tenant from any liability, and without constituting
any eviction, and without any liability on the Landlord's part, to
cut off such electric current after five days' notice for
non-payment of any such xxxx or bills. The Tenant shall comply
with such rules, regulations and contract provisions as are
customarily prescribed by public service corporations supplying
such services, for consumption similar to that of the Tenant.
(b) The Landlord may discontinue the supply of electric
current under subdivision (a) at any time on sixty (60) days'
notice to the Tenant without being liable to the Tenant therefor
or without in any way affecting this lease or the liability of the
Tenant hereunder or causing the diminution of rent, and the same
shall not be deemed to be a lessening or diminution of services
within the meaning of any law, rule, or regulation now or
hereafter enacted, promulgated, or issued. Should the Landlord
give such notice of discontinuance, the Tenant shall make the
Tenant's own arrangements to receive such service direct from such
public utility corporation serving the building and the Landlord
shall permit the Landlord's wires, conduits and meters, to the
extent to which they are safely available for such use and to the
extent to which they may be so used under any applicable
governmental regulations or the regulations of such public
utility, to be used for the purpose. Should any additional or
other wiring, conduits, meters or any other or different
distribution equipment be required in order to permit the Tenant
to receive such service directly from the public utility, the same
will be installed, as the Landlord shall elect, either by the
Landlord, at the sole cost and expense of the Tenant, or by the
Tenant at the Tenant's sole cost and expense. In the case of
central distribution equipment which is used in connection with
the distribution or metering
[ILLEGIBLE]
[ILLEGIBLE]
[ILLEGIBLE]
CONDEMNATION
If only a part of the premises is taken and the remainder of the premises shall
be sufficient in area to be economically useable by the Tenant, then this
lease will remain in force with respect to such remainder and the rent,
beginning on the date in which possession of the portion of the premises which
is taken, is taken or assumed by the condemning authority, shall be abated in
proportion as if the premises were partly damaged by fire.
[ILLEGIBLE]
[ILLEGIBLE]
SUBORDINATION
[ILLEGIBLE]
of current supplied to the Tenant and other tenants of the
building, and which installed under governmental regulations
or the regulations of such utility, the [ILLEGIBLE] thereof
will be prorated among the several tenants, serviced through
the [ILLEGIBLE] proportion which their average consumption of
electric current over the next [ILLEGIBLE] less than six
months' duration hears to the total consumption of electric
current during such period, and the tenant shall pay to the
landlord the tenant's share of [ILLEGIBLE], apportioned
as above, within five (5) days following receipt of a
statement [ILLEGIBLE] distribution equipment and the manner in
which the cost has been allocated to the [ILLEGIBLE] supply of
electric current by the Landlord be discontinued, but not as a
result election to discontinue the supply of current, then the
Tenant shall, at the Tenant all wiring, metering and
distribution facilities; which are required in order to
[ILLEGIBLE] purchase the Tenant's requirements for electric
current for the premises from [ILLEGIBLE] discontinue the use
of the Landlord's electric wires, cables, meters and
distribute such facilities installed by the Tenant shall be
installed in a workmanlike way [ILLEGIBLE] applicable
governmental regulations and the regulations of the public
utility. The [ILLEGIBLE] any such case permit any pipe-chases
or channels available in the building to be [ILLEGIBLE] for
the Tenant's cables and conduits, to the extent that the same
may be available used for the purpose.
(c) The Landlord shall not in any way be liable or
responsible to the [ILLEGIBLE] or damage or expense which the
Tenant may sustain or incur if either the [ILLEGIBLE] electric
service is changed or is no longer available or suitable for
the Tenant's [ILLEGIBLE] shall the Landlord be in any way
responsible for any interruption of service [ILLEGIBLE]
repairs, malfunction of electrical equipment or any other
cause relating to electricity is beyond the Landlord's
reasonable control.
(d) If there be any facilities for the supply of live
steam in the building, [ILLEGIBLE] supplied to the Tenant only
if separate agreements are made therefor and pursuant
[ILLEGIBLE]. In the event that such separate agreements shall
be made, the appropriate paragraph Tenth shall be applicable
thereto.
CONDEMNATION ELEVENTH : If the premises shall be taken or [ILLEGIBLE]
or quasi public use, this lease and the term hereby granted
shall terminate on the [ILLEGIBLE] sign of the premises or
such part shall be actually taken for such public or quasi
[ILLEGIBLE] If only a part of the premises, is taken and the
remainder of the premises shall be sufflolent in area to be
economically useable by the Tenant, then this lease will
remain in force with respect to such remainder and the rent
beginning on the date in which possession of the portion of
the premises which is taken, is taken or assumed by the con-
demning authority, shall be abated in proportion as if the
premises were partly damaged by fire. Other part of the
building shall be so taken, and such taking shall, in the
judgment [ILLEGIBLE] make the operation of the building
impractical, unprofitable or uneconomical (even [ILLEGIBLE]
the premises be taken), the Landlord may, at its option, give
to the Tenant, at [ILLEGIBLE] vesting of title and prior to
the actual taking of possession, thirty (30) days' [ILLEGIBLE]
to terminate this lease, and upon the date designated in such
notice, this [ILLEGIBLE] hereby granted shall terminate. In no
event shall any condemnation award be [ILLEGIBLE] the Tenant
hereby assigns to the Landlord all right and claim to any part
of such[ILLEGIBLE] rent, and all other sums payable by the
Tenant, shall be apportioned as of the [ILLEGIBLE] termination
of this lease, provided, however, that the Tenant shall be
[ILLEGIBLE] and to claim on its behalf for the taking or the
destruction, if any,[ILLEGIBLE] its trade fixtures.
MECHANICS LIENS TWELFTH : The Tenant will not permit, during the term
hereby granted, [ILLEGIBLE] other lien or order for payment of
work, labor, services, or materials furnished or [ILLEGIBLE]
attach to or affect the premises or any portion thereof, and
agrees that no such [ILLEGIBLE] under any circumstances attach
to or affect the fee, leasehold or other estate of [ILLEGIBLE]
in, or the building. The Tenant's obligation to keep the
premises in repair, and [ILLEGIBLE] alterations therein, if
any, shall not be construed as the consent of the Landlord
[ILLEGIBLE] of any such work, labor or materials within the
meaning of any present or future is hereby given that the
Tenant has no power, authority or right to do any act or
[ILLEGIBLE] tract which may create, or be the foundation for,
any lien upon the fee or [ILLEGIBLE] Landlord in the premises
or upon the land or buildings of which they are a part
[ILLEGIBLE] ments now erected or hereafter to be erected upon
the premises or the land or build premises are a part; and if
any such mechanic's or other lien or order shall be premises
or the land or building of which the premises are a part, the
Tenant (10) days thereafter, discharge said lien or order by
payment, deposit or by bond [ILLEGIBLE] proceeding according
to law. If the Tenant shall fail to take such action, or shall
lien or order to be discharged within ten (10) days after the
filing thereof, the [ILLEGIBLE] the amount of such lien or
discharge the same by deposit or by bond or in any [ILLEGIBLE]
[ILLEGIBLE] to law, and pay any judgment recovered in any
action to establish or [ILLEGIBLE] order, and any amount so
paid, together with the expenses incurred by the [ILLEGIBLE]
all attorneys' fees and disbursements incurred in any defense
of any such action, [ILLEGIBLE] proceeding, shall be deemed
additional rent.
SUBORDINATION THIRTEENTH : This lease, and all the rights of the
Tenant hereunder, [ILLEGIBLE] subject and subordinate to any
and all mortgages now or hereafter liens either in [ILLEGIBLE]
on the building, or the land on which it stands, and also to
any and all other [ILLEGIBLE] other lands or lands and
buildings, which may now or hereafter be consolidated gage or
mortgages upon the building and the land on which it stands or
which [ILLEGIBLE] dated and spread to cover the building and
such land and any such other lands or land and any extension,
renewal or modification of any such mortgages, and to any
[ILLEGIBLE] leases on record, or hereafter to be recorded,
against the building or the land on which [ILLEGIBLE] any
extensions, renewals or modifications thereof. The Tenant
hereby constitutes [ILLEGIBLE] appoints the Landlord the
Tenant's attorney in fact to execute any instrument or dencing
such subordination for and on behalf of the Tenant.
[ILLEGIBLE]
[ILLEGIBLE] [ILLEGIBLE]: The tenant shall immediately discontinue
OF any use of the [ILLEGIBLE] which may, at any time be claimed
OCCUPANCY or declared by the City or State of New York [ILLEGIBLE]
mental authority to be in violation of or contrary to the
certificate of occupancy or by reason of which any attempt may
be made to penalize the Landlord or [ILLEGIBLE] to secure any
certificate of occupancy other than the one, if any, now
issued [ILLEGIBLE]
VAULTS FIFTEENTH : Notwithstanding anything herein contained,
or shown on [ILLEGIBLE] [ILLEGIBLE] hereto attached, to the
contrary, if any vault space forms a part of the [ILLEGIBLE]
the same, or any part or portion of the herein, demised
premises is not within the [ILLEGIBLE] the building or
premises, and if the use of the said space shall hereafter be
[ILLEGIBLE] by exercise of any governmental authority, the
Tenant shall have no claim whatever [ILLEGIBLE] lord for the
loss of such space, by any abatement of the rent, or
otherwise, an covenant of quiet enjoyment hereinafter
contained, shall not be deemed to apply [ILLEGIBLE] The
Landlord makes no representation as to the location of the
property line of[ILLEGIBLE] Tenant shall reimburse the
Landlord for the vault charge or tax, if any, imposed
[ILLEGIBLE] New York with respect of any such vault space.
LIQUORS
FIRE AND SEVENTEENTH : (a) If the premises shall be damaged by
FIRE INSURANCE fire, the Tenant [ILLEGIBLE] thereof to the Landlord, and said
damage shall be repaired by the Landlord, [ILLEGIBLE]
expense, with all reasonable speed, making due allowance for
paragraph SEVEN- delay due to labor [ILLEGIBLE] ment of loss and other causes
TEENTH (a) beyond the control of the Landlord, and the Tenant [ILLEGIBLE]
continued resonable way, faciliate the making of such repairs, and the
[ILLEGIBLE] rent shall be [ILLEGIBLE] period as the premises shall have
No. 2, been rendered wholly untenantable and in [ILLEGIBLE] premises
attached hereto are rendered partially untenantable, the rent shall be abated
and [ILLEGIBLE] during [ILLEGIBLE] proportion which the area of the premises
part of lease. which is rendered untenantable bears [ILLEGIBLE] whole
premises, but no damage to the premises or the building by
fire, or other [ILLEGIBLE] extensive; shall terminate this
lease, or give the Tenant the right to quit and [ILLEGIBLE] or
impair any obligation of the Tenant, hereunder, except with
respect to the [ILLEGIBLE] with respect thereto to the extent
above provided) unless the same be so extensive [ILLEGIBLE]
shall, within sixty (60) days, after the date when such fire
occurs, elect to [ILLEGIBLE] the building, in which event
(even though the premises shall be then tenantable and
[ILLEGIBLE] Tenant) the Landlord may give to the Tenant thirty
(30) days' notice of intention [ILLEGIBLE] lease, and upon the
date designated in such notice, the term hereby granted shall
[ILLEGIBLE] rent shall be apportioned as of the date of such
fire or as of such later date as the [ILLEGIBLE] surrender
possession.
(b) The Tenant shall conduct its business and use the
premises in such [ILLEGIBLE] make and keep the rate of
insurance upon the entire building as low as such rate
[ILLEGIBLE] kept, and the Tenant shall install and maintain
all its furniture, fixtures, [ILLEGIBLE] materials in such a
manner as to accomplish the foregoing purposes. The Tenant
[ILLEGIBLE] to permit any act to be done or anything brought
into or kept upon the premises [ILLEGIBLE] or avoid the
insurer's liability under any contract of fire insurance on
the building [ILLEGIBLE]. Should the fire insurance rate on
the building be increased beyond the present rate, [ILLEGIBLE]
Tenant's occupancy or character of its business, or the
Tenant's failure to comply [ILLEGIBLE] hereof, the Tenant
agrees to pay to the Landlord, on demand, the additional cost
of [ILLEGIBLE] or, at the option of the Landlord, the same may
be added to any installment of rent [ILLEGIBLE] as additional
rent. The schedule of the makeup of a rate issued by an
authorized [ILLEGIBLE] tion shall be conclusive evidence of
the facts therein stated and of the items in the [ILLEGIBLE]
to the premises.
CHANGE IN EIGHTEENTH : The use to be made of the premises by the
USE OF PREMISES, Tenant as [ILLEGIBLE] the identity of the Tenant being among
SUBLETT1NG AND the inducements to the making of this lease, [ILLEGIBLE] not,
ASSIGNMENT without having first obtained the Landlord's written consent,
paragraph EIGHT- use the [ILLEGIBLE] thereof, or permit the same to be used,
EENTH continued, for any purpose other than that above [ILLEGIBLE] assign or
NO. 2. attached transfer this lease or any interest therein, or mortgage or
hero- [ILLEGIBLE] encumber the [ILLEGIBLE] the same to be assigned, transferred,
and made part of or encumbered by operation of law, or [ILLEGIBLE] or any part
lease. thereof, or permit the same to be occupied by anyone other
than the [ILLEGIBLE] Tenant's employees. No such consent shall
be deemed to permit any act except [ILLEGIBLE] specifically
refers or to waive or to render unnecessary any subsequent
consent to [ILLEGIBLE] to relieve the Tenant or any mesne
assignee from any obligation under this lease [ILLEGIBLE]
signee, by accepting an assignment, shall be conclusively
deemed to have [ILLEGIBLE] all obligations already accrued or
to accrue thereunder and further to have agreed [ILLEGIBLE]
perform all of the Tenant's covenants herein contained. If the
Tenant shall, at [ILLEGIBLE] default in the payment of rent,
the Landlord shall have the right to collect rent from
[ILLEGIBLE] under-tenant, or occupant, and credit the same
to the account of the Tenant; and [ILLEGIBLE] shall
constitute a waiver of the foregoing covenant or constitute
the [ILLEGIBLE] other than the Tenant as tenant, or shall
otherwise release, impair, or otherwise [ILLEGIBLE] tion of
the Tenant under this lease.
WAIVER AND SURRENDER; REMEDIES CUMULATIVE
NINETEENTH : No consent or waiver of any provision hereof or acceptance of
any surrender shall be implied from any act or forbearance by the Landlord. No
agreement purporting to accept a surrender of this lease, or to modify, alter,
amend or waive any term or provision thereof, shall have any effect or validity
whatever, unless the same shall be in writing, and executed by the Landlord and
by the Tenant, and be duly delivered, nor shall the delivery of any keys to
anyone have any legal effect, any rule or provision of law to the contrary
notwithstanding. Any consent, waiver or acceptance of surrender, in writing, and
properly executed and delivered as aforesaid, shall be limited to the
special instance for which it is given, and no superintendent or employee, other
than an officer of the Landlord or of its managing agent, and no renting
representative shall have any authority to accept a surrender of the premises,
or to make any agreement or modification of this lease, or any of the terms and
provisions hereof. No provision of any lease made by the Landlord to any other
tenant of the building shall be taken into consideration in any manner whatever
in determining the rights of the Tenant herein. No payment by the Tenant or
receipt by the Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the stipulated rent,
nor shall any endorsement on any check, nor any letter accompanying any such
payment of rent be deemed an accord and satisfaction (unless an agreement to
accept a lesser amount be signed by the Landlord), but the Landlord may accept
such payment without prejudice to the Landlord's full right to recover the
balance of such rent and to institute summary proceedings therefor. The receipt
by the Landlord of any rent, or additional rent or of any other sum of money
which may be payable under this lease, or of any portion thereof, shall not be
deemed a waiver of the right of the Landlord to enforce the payment of any sum
of any kind previously due or which may thereafter become due under this lease,
or of the right to forfeit this lease by such remedies as may be appropriate, or
to terminate this lease or to exercise any of the rights and remedies reserved
to the Landlord hereunder, and the failure Of the Landlord to enforce any
covenant or condition (although the Tenant shall have repeatedly or continuously
broken the same without objection from the Landlord) shall not estop the
Landlord at any time from taking any action with respect to such breach which
may be authorized by this lease, or by law, or from enforcing said covenant or
any other covenant or condition on the occasion of any subsequent breach or
default. In the event of any continuing or threatened breach by the Tenant, the
Landlord shall have the right of injunction. The various rights, remedies,
powers and elections of the Landlord, as provided in this lease or created by
law, are cumulative, and none of them shall be deemed to be exclusive of the
others, or of such other rights, remedies, powers or elections as are now or may
hereafter be conferred upon the Landlord by law.
REPRESENTATIONS AS TO PREMISES, CERTIFICATE OF OCCUPANCY AND USE
TWENTIETH : The Tenant represents to the Landlord that the Tenant has
made, or caused to be made, a careful inspection of the premises and that the
Tenant has made an examination of the certificate of occupancy of the building
and that the area and present condition of the premises are in all respects
satisfactory to the Tenant, except (if at all) as may herein otherwise be
expressly stated in the memorandum of repairs or decorations to be done by the
Landlord attached to this lease, and that the Tenant has determined that the use
of the premises, as set forth in this lease, is consistent with the uses
permitted under the certificate of occupancy. The Tenant acknowledges that no
representations or promises have been made by the Landlord or the Landlord's
agents with respect to the premises or the building or the certificate of
occupancy thereof, except as in this lease set forth. The statements contained
in this lease regarding the use of the premises by the Tenant shall not be
deemed a representation or warranty by the Landlord that such use is lawful or
permitted by the certificate of occupancy of the building.
LIMITATION OF LANDLORD'S LIABILITY
TWENTY-FIRST: (a) The Tenant shall make no claim upon the Landlord for
abatement of rent, constructive eviction, rescission, or otherwise, and the
Landlord shall be exempt from all liability, except for injuries to the
Tenant's person or property which are due to the negligence of the Landlord, its
agents, servants or employees in the management of the premises or the real
property of which the demised premises are a part, for or on account of any
annoyance, inconvenience, interference with business, or other damage, caused
by: (i) any interruption, malfunction or curtailment of the operation of the
elevator service, heating plant, sprinkler system, gas, water, sewer or steam
supply, plumbing, machinery, electric equipment or other appurtenances,
facilities, equipment and conveniences in the building, whether such
interruption, malfunction or curtailment be due to breakdowns, or repairs, or
strikes or inability to obtain electricity, fuel or water due to any such cause
or any other cause beyond the Landlord's control; (ii) any work of repair,
alteration or replacement done by or on behalf of the Landlord or the Tenant,
pursuant to the provisions of this lease; (iii) any water, rain, snow, steam,
gas, electricity or other element, which may enter, flow from or into the
premises or any part of the building, or any noise or vibration audible in, or
transmitted to the premises : (iv) any vermin; (v) any falling paint, plaster or
cement; (vi) any interference with light or with other easements or incorporeal
hereditaments; (vii) any latent defect or deterioration in the building or the
appurtenances thereof, whether or not the Landlord shall have been notified of
any condition allegedly causing same; (viii) any zoning ordinance or other acts
of governmental or public authority now or hereafter in force; and (ix) any act
or omission of any other occupant of the building or other person temporarily
therein. The Tenant will not hold the Landlord liable for any loss or theft of,
or damage to, any property in the herein demised premises done or caused by any
employee, servant, or agent of the Landlord who is invited into the premises by
the Tenant, nor for the loss, damage or theft of any property stored or left in
the basement or in any other part of the building, or left with any employee of
the Landlord, notwithstanding such theft, loss or damage may occur through
carelessness or negligence of the Landlord's employees; and the Tenant agrees
that any employee in entering the premises at the invitation of the Tenant or
accepting custody of property shall be then deemed agent of the Tenant or other
person at whose instance he may be acting, and not agent of the Landlord.
Employees are not permitted to receive or accept packages or property for
account of Tenants. Storerooms or storage space for personal property (if
provided) are provided gratuitously by the Landlord, and the use of same shall
be at the Tenant's risk and the Tenant will not hold the Landlord liable for any
loss of or damage to person or property therein or thereby. Nothing in this
lease contained shall impose any obligation upon the Landlord with respect to
any real property other than this building, whether said other real property be
owned by the Landlord or otherwise, or shall in any way limit the Landlord's
right to build upon or otherwise use said other real property in such manner as
the Landlord may see fit. The Tenant shall make no claim upon the Landlord for
abatement of rent, constructive eviction or rescission, and the Landlord shall
have no liability by reason of the Landlord's failure to enforce the provisions
of the lease to any other tenant against such other tenant.
(h) Any right and authority reserved by and granted to the
Landlord under this lease, to [ILLEGIBLE] upon and make repairs in
the premises shall not be taken as obligating the Landlord to
inspect and I repair the premises and the Landlord hereby assumes no
responsibility or liability for the can inspection, maintenance,
supervision, alteration or repair of the premises.
INDEMNITY TWENTY-SECOND: The Tenant hereby indemnifies and agrees
BY TENANT forever to save harmless the Landlord against any and all
liabilities, penalties, claims, damages, expenses (including
attorney and counsel fees) or judgments, arising from injury to
person or property of any kind, occasions wholly or in part by any
act or acts, omission or omissions of the Tenant, or of the
employees, customers, agents, assigns or under-tenants of the
Tenant, or based on any matter or thing growing out of the Tenant's
use or occupation of the premises or any part of the building.
NOTICES TWENTY-THIRD: Any notice which is to be given by either party
to the other pursuant this lease shall be in writing and shall be
given as follows: (a) If such notice is to be given by the Landlord
to the Tenant, such notice may be given personally or by registered
mail in the following manner: (i) notice may be given personally, by
delivering the same to the Tenant or, if the Tenant be a corporation
or partnership, to any officer of such corporation or member of the
partnership, at the premises or at any other place; or (ii) notice
may also be given personally at the premises by delivering the same
to the Tenant or any officer or partner of the Tenant, or to
[ILLEGIBLE] regular employee of the Tenant; or (iii) notice may also
be given by registered* mail by deposition the notice, enclosed in
an envelope addressed to the Tenant at its address given in this
lease or at the premises, in any United States Post Office, postage
and registry* fees prepaid; (b) If such notice is to be given by the
Tenant to the Landlord, the notice shall be given by registered*
mail, by [ILLEGIBLE] positing the notice, enclosed in an envelope,
addressed to the Landlord at 00 Xxxx Xxx. Xxx Xxxx, X. Y., or at
such other place as the Landlord shall hereafter designate in
writing, in [ILLEGIBLE] United States Post Office, postage and
registry* fees prepaid. Any notice shall be deemed to have been
given on the date when the same is delivered as above provided or,
if given by mail, on the date when it is deposited as above provided
in the United States Post Office.
*or certified
DISOLVENCY TWENTY-FOURTH: If, at any time after the execution and
delivery of this lease, the Tenant shall be adjudicated a bankrupt,
or if the Tenant shall make any assignment for the benefit
[ILLEGIBLE] creditors, or attempt to take the benefit of any
insolvency law, or if a petition or answer to reorganization Tenant
shall be approved by any court or judge, or if a petition or answer
for a composition or extension shall be filed by the Tenant, or if a
receiver or trustee shall be appointed for the Tenant's property, or
if the Tenant's interest in this lease shall be attached or levied
upon the shall devolve upon or pass to any party other than the
Tenant (whether such event occur prior to subsequent to the
commencement of the term or Tenant's entry into possession) such
event shall be conclusively deemed a default hereunder, and the
Landlord shall have the right to terminate this lease in the manner
hereinafter provided, as if such event were a breach by the Tenant
of the covenants of this lease. In the event of such termination,
the Tenant or any person claiming under, by or through the Tenant,
by virtue of any [ILLEGIBLE] or of an order of any court, shall not
be entitled to possession or to remain in possession of the demised
premises but shall forthwill quit and surrender same. Exclusive of
and in addition to any other rights or remedies the Landlord may
have through any other portion or provision of this lease or by
virtue of any rule of [ILLEGIBLE] or statute, said Landlord may keep
and retain, as liquidated damages, any rent, security, deposit or
other moneys or consideration received by the Landlord from the
Tenant, or others on behalf [ILLEGIBLE] the Tenant. Also, in the
event of termination of this lease as aforesaid, the Landlord shall
be entitled, as and for liquidated damages from the Tenant for
breach of the unexpired term of the lease, to an amount equal to the
difference between the rental value of the remainder of the tenant
at the time of termination and the actual rent reserved, both
discounted to present worth at the rate of four percent (4%) per
annum. If it any time within a reasonable period following the date
of the termination of the lease, as a foresaid, the premises should
be re-rented by the Landlord the rent realised by any re-letting
shall be deemed [ILLEGIBLE] to be the rental value. In the event of
the occurrence of any of the above-mentioned events of default
occasioned solely through the invocation by the Tenant or by third
Parties of the laws of the State of New York, judicial [ILLEGIBLE]
statutory, as distinguished from the invocation of Federal laws
relating to bankruptcy, reorganization, or otherwise, the Landlord,
in addition to the foregoing, may accelerate the full amount
[ILLEGIBLE] reserved for the remainder of the lease, and the same
shall forthwith become due and payable to the Landlord. Nothing
herein, provided shall be deemed to percent or restrict the Landlord
from proving and receiving as liquidated damages herein the maximum
permitted by any rule [ILLEGIBLE] law or statute prevailing when
such damages are to be proved, whether they be greater or less than
those referred to above.
[ILLEGIBLE]
REMEDIES OF THE LANDLORD ON DEFAULT PERFORMANCE BY THE LANDLORD
TWENTY-FIFTH: (a) If the Tenant shall default in the full and due
performance of any covenant of this lease, the Landlord shall have the right,
upon five (5) days' notice to the Tenant (unless a shorter period of notice or
provision for the performance of such work without notice is elsewhere
established), to perform the same for the account of the Tenant, and in such
event all workmen employed by the Landlord shall be deemed the agents of the
Tenant, and any reasonable payment made, and expense incurred, by the Landlord
in this connection, shall forthwith become due and payable by the Tenant to
the Landlord. If the Landlord is compelled to incur any expenses, including
reasonable attorneys' fees in instituting, prosecuting or defending
any action or proceeding instituted by reason of any default of the Tenant
hereunder, the sum or sums so paid by the Landlord with all interest,costs and
damages, shall be deemed immediately due to the Landlord upon demand. Any and
all sums payable by the Tenant to the Landlord shall bear interest at the rate
of six per centum (6%) per annum from the due date to the date of actual
payment, and any and all such sums (except the rent hereinabove expressly
reserved) shall be deemed to be additional rent for the period prior to such due
date, and the Landlord shall have the same remedies for default in the payment
of such additional rent as for default in the payment of the rent expressly
reserved.
PERFORMANCE BY THE LANDLORD NOT AN EXCLUSIVE REMEDY
(b) In the event that under the provisions of this lease the Landlord
shall have the privilege of performing any covenant in respect of which the
Tenant may be in default and of recovering the expenses so involved from the
Tenant as additional rent or otherwise, such remedy shall not be the exclusive
remedy of the Landlord but the Landlord may, at its option, treat such default
as a breach of a substantial obligation of this lease and shall have all the
other remedies in respect thereof provided in this or any other paragraph of
this lease.
DISPOSSESS TERMINATION OF LEASE
(c) If the Tenant shall violate or default in the full and due performance
of any covenant, provision or condition of this lease including the covenant to
pay the rent or any additional rent), or any covenant, provision or condition of
any other lease under which the Tenant is a tenant in the building, or if any of
the events specified in the paragraph of this lease numbered Twenty-fourth and
headed "Insolvency" shall occur, or if the conduct of the Tenant or any occupant
of the premises shall reasonably be deemed objectionable by the Landlord or the
Landlord's managing agent, the Landlord will give to the Tenant ten days' notice
of such violation, default or misconduct. In the event that (i) if the premises
shall be vacated, abandoned or deserted, or (ii) in the event that the Tenant,
after notice thereof as above provided, shall fail to stop any violation or
fully cure or remedy any default or terminate any misconduct under this lease(2)
(or in the event that the default is of a nature such that the steps required to
cure or remedy the same fully cannot reasonably be completed within ten days,
then if the Tenant shall not have commenced and have diligently and continuously
prosecuted the steps necessary to cure or remedy such default) the Landlord may
give to the Tenant ten (10) day's, notice of its intention to terminate this
lease, and, in such event, on the tenth day following the giving of such notice
this lease and the term hereby granted shall terminate and expire as fully and
completely as if that day were the date herein expressly fixed for the
expiration of the term, and the Tenant shall thereupon quit and surrender the
premises into the possession of the Landlord, but the Tenant shall nevertheless
remain liable for deficiency in future rent and for any other defaults
hereunder, as hereinafter provided. If this lease shall be terminated by the
notice above provided for, the Landlord may immediately, or at any time
thereafter, re-enter the premises and remove all persons and property therefrom,
either by summary dispossess proceedings, or by any suitable action or
proceeding at law, or by force, or otherwise, without being liable to
indictment, prosecution or damages therefor, re-possess and enjoy-the premises,
together with all additions, alterations, installations and improvements, and no
entry by the Landlord shall be deemed an acceptance of surrender Upon any such
re-entry, the Landlord may re-let the premises or any part or parts thereof, and
for such term or terms as to the Landlord may seem wise, even though the same
extend beyond the date herein expressly fixed for the expiration of the term.
Any such re-letting shall, at the Landlord's option, be either for the
Landlord's own account, or as the agent for Tenant. If the Landlord shall re-let
as the agent of the Tenant, the Landlord shall receive the rents and apply the
same, first, to the payment of all expenses which the Landlord shall have
incurred by reason of the Tenant's default and in connection with such re-entry
and re-letting, including, but not by way of limitation, legal expenses, brokers
commissions, and the cost of reasonable repairs, redecoration and alterations,
and, secondly to the fulfillment of the covenants of the Tenant hereit
contained, and the surplus, if any, existing at the date herein expressly fixed
for the expiration of the term, shall be paid to the Tenant, but the Tenant
shall be entitled to no such payment until said date. So long as the premises,
or any part thereof, shall not be re-let, or shall be re-let by the Landlord as
the agent of the Tenant, the Tenant shall remain liable for the full and due
performance of all the covenants of this lease, and the Tenant hereby agrees to
pay to the Landlord, as damages for any default hereunder, until the date,
herein expressly fixed for the expiration of the term, the equivalent of the
amount of all the base and additional rent reserved herein, less the net avails
of re-letting, as hereinbefore defined, if any, and the same shall be due and
payable by the Tenant to the Landlord on the several rent days above specified,
that is, upon each of the said rent days the Tenant shall pay to the Landlord
the amount of deficiency then existing, and shall not be entitled to withhold
any such payment until the date herein expressly fixed for the expiration of the
term. The liability of the Tenant shall survive the issuance of a final order
and warrant of dispossess, and re-entry by the Landlord, and any other
termination of this lease for default of the Tenant, and the granting by the
Landlord of a new lease of the premise to another tenant, and the Tenant hereby
waives any defense which might be predicated upon any of said acts or events.
The terms "base rent" and "fixed rent" are used interchangably in this Lease and
"fixed rent" has the same meaning as the term "base rent".
The Tenant hereby expressly waives (i) any and all right to regain
possession of said premises or to reinstate or redeem this lease as provided by
the Real Properly Actions & Proceedings Law, (and as said law may be amended) or
any such right which is or may be given by any other statute, law or decision
now or hereafter in force; (ii) the service of any notice demanding rent or
stating an intention to re-enter; or any similar right which is or may be given
by any statute. law or decision now or hereafter in force; (iii) any and all
rights of redemption and all other rights to regain possession or to reinstate
this lease (in case the Tenant shall be dispossessed or ejected by, or
pursuant to judgment, order, execution or warrant of any court of judge). Except
as provided in Section 259-c of the Real Property Law with respect to an action
for personal injury or property damage between the parties hereto, the Tenant
waives and will waive all right to trial by jury in any summary proceedings and
in any other proceeding or action at law hereafter instituted by the Landlord
against the Tenant in respect of this lease, and also in any action or
proceeding between the parties hereto for any exuse; and it is hereby agreed,
that in any of such events, the matter in dispute shall be tried before a judge
without a jury. In the event the Landlord shall commence any action or summary
proceeding for non-payment of rent or other breach of covenant or condition, the
Tenant hereby agrees not to interpose any counter claim of whatever nature or
description in any such action or proceeding. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning.
SURRENDER AT EXPIRATlON
TWENTY-SIXTH : Upon the expiration or any termination of the term of this
lease, the Tenant shall quit and surrender the demised premises, together with
any fixtures, equipment or appurtenances installed in the premises at the
commencement of this lease, and any alterations, decorations, additions and
improvements which are not to be removed in compliance with the provisions of
paragraph Fourth hereof, to the Landlord, in good order and condition, ordinary
wear excepted. The Tenant shall remove all its furnishings, trade fixtures,
stock in trade and like personal property in accord with the requirements of
paragraph Fourth, so as to leave the premises broom-clean and in an orderly
condition. If the last day of the term of this lease falls on Sunday, this lease
shall expire on the business day immediately preceding. The Tenant's obligation
to 'observe and perform this covenant shall survive the expiration or other
termination of the term of this lease.
QUIET ENJOYMENT
TWENTY-SEVENTH : The Landlord covenants that if the Tenant shall duly
keep and perform all the terms and conditions hereof, the Tenant shall peaceably
and quietly have, hold and enjoy the premises for the term aforesaid, subject
however to ground leases, underlying leases and mortgages as hereinbefore
described, and to the lien rights and estate by virtue of unpaid taxes of any
government having jurisdiction of the premises of which the herein demised
premises are a part. If the Landlord shall hereafter sell, exchange or lease the
entire building, subject to this lease, or, being the lessee thereof, shall
assign its lease, the grantee lessee, or assignee thereof, as the case may be,
shall, without further agreement by any party, be conclusively deemed to be the
Landlord of this lease and to have assumed and undertaken to carry out all of
the obligations hereof on the part of the Landlord to be performed, and the
Tenant does hereby release the above named Landlord from any claim or liability
arising or accruing hereunder subsequent to such transfer of ownership or
possession, for breach of the covenant of quiet enjoyment, or otherwise.
ELEVATORS, HEAT
TWENTY-NINTH: Except on Saturdays and Sundays,and on holidays recognized
as legal holidays by State or Federal Government, the Landlord shall furnish,
between the hours of eight A.M. and six P.M. elevator service with the elevators
now in the building, and sufficient heat during the cold season to heat the
premises. The Landlord may suspend such service, if it should become necessary
or proper so to do, at any time. The Landlord shall restore such service within
a reasonable time, making due allowance for labor troubles, acts of God, or any
cause beyond the Landlord's control. Should the Tenant be in default in the
payment of any rent hereunder, the Landlord may, without notice, and without
diminution of the liability of the Tenant hereunder, and without constituting an
eviction, constructive or otherwise, suspend or refuse the Tenant freight and
passenger elevator service and should the Tenant, after notice, violate the
provisions of Rule 14, the Landlord may, without any diminution of such
liability or constituting such eviction, suspend or refuse the Tenant freight
elevator service until the conditions in violation of Rule 14 have been fully
remedied.
Paragraph Twenty - Ninth continued on Rider 2 attached and made part of lease.
WATER AND SEWER RENTS
THIRTIETH: (a) The Tenant shall pay for all hot and cold water used on the
premises and the Tenant's proportionate share of the cost of such water used for
lavatory purposes in any lavatories used by the Tenant in common with other
tenants at the Landlord's standard rates. In the event that the Tenant shall use
water for any industrial purpose or any purpose other than usual lavatory
purposes, the Tenant shall, at its own expense, install a meter or meters for
the measurement of the quantify of water thus consumed and keep the same in good
working order. With respect to water used for lavatory purposes, whether on the
premises or in lavatories used by the Tenant in common with other tenants, if
the quantity of water so used is measured by a meter which measures the
consumption of water by other tenants, the Tenant shall pay its proportionate
share of all water so consumed. Such proportionate part shall be fixed in accord
with the number of persons occupying the premises and the number of persons
occupying all premises using water which is measured by such meter. In the event
that there shall be a separate meter which measures the use of water by the
Tenant for lavatory purposes, the Tenant will pay for the water so shown to have
been used and the cost of maintenance of such meter. All payments for water
shall be due when billed to the Tenant. In the event that the Tenant defaults in
the payment for any water, the amount not paid shall forthwith be payable as
additional rent and the Landlord may also, without incurring any liability or
disability thereby or constituting a constructive eviction, discontinue the
Tenant's supply of water. The Landlord is not under obligation to supply hot
water and. if hot water is supplied, the Landlord may at any time without notice
discontinue such supply without constituting an eviction or without incurring
any liability or disability therefor.
(b) The Tenant shall pay the New York City sewer rents apportioned to the
Tenant's consumption of water at the premises. The apportionment of the sewer
rent to the premises shall be made in accord with the measurement or
apportionment of water consumed at the premises as in this lease hereinbefore
provided. The sewer rents shall be billed with the water charges and the
Landlord shall have the same remedies for the collection thereof provided in the
case of charges for water.
SPRINKLER MAINTENANCE
THIRTY-FIRST: The Tenant shall pay to the Landlord the Tenant's
proportionate share of the cost of maintenance, operation and rental of the
automatic fire alarm supervisory service and manual alarm and sprinkler system
now installed in the building and the premises. The Tenant's proportionate share
of such cost shall be the fraction of the annual expenditures of the Landlord
for such purposes, of which the numerator is the area of the premises and the
denominator is the rentable area of the entire building. The amount so payable
by the Tenant shall be due when bills therefor are rendered by the Landlord to
the Tenant, and in the event of default In the payment thereof, the Landlord may
add the amount of any such xxxx to any succeeding installment of rent and the
same shall be collectible as additional rent.
THIRTY-SECOND: The Tenant shall, during the demised term provide and keep
in force public liability insurance, written by insurance companies approved by
the Landlord, covering the Tenant, which shall be in the limit of at least
$ 2,000,000 for claims arising from injury to any one person and (subject to
said limit for each individual) with a limit of at least $2,000,000 for total
claims arising from any one casualty.
The Tenant shall furnish the Landlord within five (5) days after the
commencement of the term hereof, with a certificate of such insurance, which
certificate shall provide, that in the event of any change or cancellation of
the policy, advance notice thereof will be given to the Landlord. Upon failure
at any time on the part if the Tenant to obtain or keep in force the insurance
required by this paragraph, or to pay [ILLEGIBLE] premiums thereof, in addition
to the rights and remedies provided in paragraph Twenty-fifth hereof, the
Landlord shall be at liberty from time to time, and as often as such failure
shall occur, to pay the premiums therefor and any and all sums so paid for
insurance by the Landlord shall be and become, and are hereby declared to be,
additional rent under this lease due and payable on the next rent day or any
successive rent day.
DEFAULT UNDER OTHER LEASES
THIRTY-THIRD: (a) If the Tenant, before the commencement of the term
herein granted, shall default in any covenant of any other lease with the
Landlord, then at the option of the Landlord this lease shall not go into effect
and the Tenant shall have no right to possession of the premises; and the Tenant
agrees to reimburse the Landlord upon demand for any expense or loss that may be
suffered due to the Tenant's default.
(b) In the event that during the term herein granted the Tenant shall
default in the performance of the covenants of any other lease with the Landlord
such default shall be deemed a default under the terms of this lease and the
Landlord shall have all the remedies herein provided for in the event of a
default under this lease.
WORK TO BE DONE BY LANDLORD
THIRTY-FOURTH: If work of any nature is agreed herein to be done by the
Landlord, the Tenant agrees that it may be done after the commencement of this
lease and that no rebate of rent or allowance will be granted therefor. The
Landlord shall not be required to furnish any work or materials to the demised
premises, except as expressly provided in the memorandum of repairs or
decorations to be done by the Landlord attached to this lease. In case the
Landlord is prevented from making any repairs, improvements, decorations or
alterations, installing any fixtures or articles of equipment, furnishing any
services or performing any other covenant herein contained to be performed on
the Landlord's part, due to the Landlord's inability to obtain, or difficulty in
obtaining labor or materials necessary therefor, or due to any governmental
rules and regulations relating to be priority of national defense requirements,
or due to labor troubles, or due to any other cause beyond the Landlord's
control, the Landlord shall not be liable to the Tenant for damages resulting
therefrom, nor except as expressly otherwise provided in paragraph Seventeenth
hereof (in respect of damage to the premises due to fire), shall the Tenant be
entitled to any abatement or reduction of rent by reason thereof, nor shall the
same give rise to a claim in the Tenant's favor that such failure constitutes
actual of constructive, total or partial, eviction from the premises.
TRADING WITH THE ENEMY
THIRTY-FIFTH: The Tenant represents and warrants that the Tenant is not
disqualified under the Trading with the Enemy Act or any other similar
legislation or under the rules and regulations of any governmental department or
authority, from acquiring, owning and holding any interest in real property. The
breach by the Tenant of this condition shall be deemed a default within the
meaning of paragraph Twenty-fifth of this lease.
MARGINAL NOTES
THIRTY-SIXTH: The marginal headings or titles of the various paragraphs of
this lease are for reference and index purposes only, and none of them shall be
taken into consideration or given any effect whatever in determining the meaning
or scope of the paragraph to which any of them apply. The use of any pronoun
referring to either of the parties to this lease shall be construed to include
any or no gender and any number.
[ILLEGIBLE]
Rider NO. 1 attached to and made part of the and made lease
dated as of the 11th day of July, 1988 between Xxxxx W, Kazis
Associates, Inc., [ILLEGIBLE] as Agent for Spring and America
Associates, Xxxxxx X. Mount and Xxxxx X. Xxxxx, as landlord, and
Butterick Company, Inc., as Tenant, consisting of pages 13
through 17 Inclusive
RENT CONTROL
THIRTY-SEVENTH: If pursuant to any existing or future
laws, rule or regulations, the rent, additional rent or any
portion thereof shall be uncollectible or unchargeable, then the
provisions of this lease should be deemed amended so as to
be consistent with such laws, rules or regulations. To the extent
not prohibited by law, at such time or such law, regulation
shall be removed, declared Inapplicable or repealed. Tenant shall
pay lord as additional rent the amount of rent that would have
been payable hereunder had such law, rule or regulation not
been applied hereto. The provisions of this Paragraph 37
shall survive the expiration of the Lease.
TAX
ESCALATION
THIRTY-EIGHTH: If the "total real, estate taxes", as
hereinafter defined, shall be increased over the "total real
estate taxes" payable Landlord for the calendar year 1990 then
Tenant shall pay Landlord "Tenant's proportionate share" (as such
term is hereinafter defined) of such amount in excess thereof In
the manner hereinafter provided. Tenant's obligation hereunder
shall be apportioned as between Landlord and Tenant for the
portion of such real estate taxes accruing within the term of
[illegible] Lease.
"Tenant's proportionate share" shall- be deemed to
be36.16-Percent Tenant's proportionate share has been computed by
dividing Tenant's rented space, which is deemed to be 102,962sq.
ft. by 901 of the total rentable space in the building, to
witz284,717 square feet.
"Total real estate taxes" shall mean and Include the
expenditures the Landlord for taxes or assessments payable by the
Landlord upon or with respect to the building and the land
upon which It Is located. Imposed Federal, State or local
government (plus all expenditures for fees and expenses incurred
In the course of obtaining a reduction in any tentatively
assessed valuation), and all taxes Imposed by any such, authority
relating to the maintenance and operation of the building, but
shall not include Income, franchise, Inheritance or capital
stock taxes.
The term "real estate taxes" shall mean all taxes and
assessments levied, assessed or Imposed at any time by any
governmental authority [ILLEGIBLE] or against the Land and/or
Buildings on the land, 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
[ILLEGIBLE] and/or Buildings to the extent that same shall be in
lieu of (and/or in [ILLEGIBLE]-of Increase in) all or a portion
of any of the aforesaid taxes or assessment upon or against
the said Land and/or Buildings.
Tenant shall pay Landlord is additional rent monthly, In
advance, sum equal to one-twelfth of the increase of Tenant's
proportionate share of the total real estate taxes as projected
by landlord. Within ninety (90) days of the expiration of each
calendar year Landlord shall furnish Tenant with a written
statement of the actual Tenant's proportionate share of the
Increase In the total real estate taxes.* In the event such
statement discloses that the additional rent paid by Tenant as
Tenant's proportionate share of the Increase In the total real
estate taxes is greater or less than the amount actually
Incurred, either Landlord shall reimburse Tenant for such amount
or Tenant shall pay such amount within twenty (20) days after the
receipt of said statement.
"In no event shall such estimate exceed 110% of Tenant's propor
tionate share of the total real estate taxes for the prior
calender year"
Tenant may, within thirty (30) days of the receipt-of
laid projection dispute the amount thereof on notice to Landland.
In the event of a dispute between the parties hereto said
dispute be determined by arbitration as set forth In
Paragraph"Forty-Second" Pending determination of such dispute
Tenant shall pay landlord the [ILLEGIBLE] claimed to be due as
per Landlord's estimate without prejudice or [ILLEGIBLE]
THIRTY-NINE: If the "operating expenses As hereinafter defined shall
exceed the "operating expenses [ILLEGIBLE] the calender year 1990 than
tenant shall pay Landlord as addition, rent "Tenant's proportionate share" (as
such term is defined in Paragraph 38 hereof) of the amount of the operating
expenses in excess thereof in the manner hereinafter provided. If the first
and/or last years of the term of this lease shall not be full calendar years,
then Tenant's obligation for operating expenses attributable to such years shall
be pro rated on the basis of the ratio between the number of days of such
calendar years falling within the Lease term and 365.
COST
ESCALATION
For any calendar year commencing with the calendar year 1991
"Operating expenses" shall mean those expenses and expenditures (except
those for Real Estate Taxes) Incurred by the Landlord In connection with
operation and maintenance of the building, Including:
(a) Heating: Includes all the expenditures of the Landlord (Including
expenditures for any related taxes) for fuel or steam used for the heating of
the building and the production of hot water:
(b) Light and Power: Includes all the expenditures of the Landlord
(Including expenditures for any related taxes) for electricity used for power
for the operation of elevators, pumps, motors and fans from time to time used in
connection with the operation of the building and for lighting of the parts of
the building used in common by all tenants or the facilities of the building
used in its operation:
(c) Employees Expense: (i) Wages, salaries, fees and other compensation or
payments,(ii) payroll taxes and contributions to any Social Security,
Unemployment Insurance, welfare, pension or similar fund, (iii) payments or
other fringe benefits required to be made by law or by union agreement, made by
or on behalf of the Landlord with respect to employees and agents of the
Landlord who from time to time regularly serve in the building and perform
services in connection with its operation and, with respect to any employees
regularly serving in the building and one or more other buildings of the
Landlord, their wages, salaries, fees and such other compensation, taxes,
contributions and fringe benefits determined on the basis of the hours served at
the building in which the premises are located and such other buildings, as such
hours are scheduled by the Landlord and the Landlord's expenditures for the
uniforms of employees and the cleaning, pressing and repair thereof:
(d) Contract Services: Expenditures for services which the Landlord is
obligated to provide pursuant to this Lease and which the Landlord elects to
provide through independent contractors rather than through its own employees:
(e) Repairs and Maintenance: Expenditures for repairs to the building and
all work of physical maintenance of the building and the cost of supplies and
equipment used in connection therewith:
(f) Insurance: Premiums and other charges incurred by Landlord with
respect to the insurance of the building against destruction by fire and the
other hazards included in "extended coverage" and with respect to insurance
against liability for personal injuries, disease or death and property damage:
(g) Water Charges: Water charges and sewer rents, not reimbursed by
tenants;
(h) Accounting: Bookkeeping and accounting fees;
(I) Miscellaneous: Management fees not in excess of those charged in the
management of similar buildings in the Borough of Manhattan.
There shall be excluded from cost of repairs any replacements which, under
sound accounting principles, shall be charged as capital expenses. There shall
be excluded from the wages, salaries and other items of Employee Expense the
wages, salaries and other related items of Expense with respect to employees in
the Landlord's Administrative Offices. Neither depreciation nor interest shall
be an "operating expense".
Tenant shall pay Landlord as additional rent monthly, in advance, a Sum
equal to l/12th of Tenant's proportionate share of operating expenses as
projected by Landlord in excess of such operating expenses for the Calendar year
1990 Within one hundred and eighty (100) days of the expiration of each calendar
year Landlord shall furnish Tenant with a written statement of the actual
operating expenses incurred for the calendar year. In the event such statement
discloses that the additional rent paid
by Tenant as Tenant's proportionate share of operating expenses is greater or
less than the amount actually incurred, either Landlord shall reimburse Tenant
for such amount, together with the forwarding of such statement, or Tenant shall
pay such amount within twenty (20) days after receipt of such statement.
At the beginning of every lease year, Landlord shall estimate the amount
to be due from Tenant and Tenant shall pay l/12th of such amount monthly in
advance, subject to adjustment as hereinabove provided. Tenant may, within
thirty (30) days of the receipt of such estimate, dispute the amount thereof on
notice to Landlord. In no event shall such estimate exceed the higher of (a)
$0.: multiplied by the number of square feet of rentable space within the
premises and Tenant's proportionate share of the Operating Expenses for the
prior lease year. In the event of a dispute between the parties hereto such
dispute shall be determined by arbitration as set forth in Paragraph 42. Pending
determination of such dispute, Tenant shall pay Landlord the amount claimed to
be due as per Landlord's estimate without prejudice or waiver.
SEE PARAGRAPH FORTY (continued) IN RIDER NO. 2
this Lease
LANDLORD'S FORTY-FIRST: Anything contained to the contrary
EXCULPATORY not-withstanding Tenant agrees that it shall look solely to the
estate and property of the Landlord in the Land and Building of
which the Premises form a part, for the collection of any
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 this Lease to be observed and/or performed by
Landlord, and no other property or assets of Landlord shall
become subject to levy, execution, attachment or other
enforcement procedures for the satisfaction of Tenant's remedies.
If the Land and Building of which the Premises form a part are
transferred or conveyed, Landlord shall be relieved of all
covenants and obligations under this Lease thereafter accruing
and Tenant shall look to such transfarree thereafter.
ARBITRATION: FORTY-SECOND: In such cases where this Lease specifically
provides for the settlement of a dispute by arbitration, such
arbitration shall be conducted by the American Arbitration
Association situated in the offices of such Association closest
to the Premises. Such submission to arbitration may be made by
either party on notice to the other. This Paragraph shall not be
deened to give either party the right to submit any dispute to
arbitration which has not been specifically provided herein to be
settled by arbitration.
LANDLORD'S FORTY-THIRD: Landlord agrees to keep its books and records
COVENANT pertain in to the cost escalation to be paid by Tenant in
accordance with Paragraph 39 hereof, in accordance with
reasonable accounting practices conducted by Landlord and
further agrees to make its books and records pertaining the rate
thereto available for Inspection and/or audit by Tenant, on
reasonable notice, provided, however, that such audit shall not
be made for a period more than twelve (12) months prior to such
audit.
BROKERS FORTY-FOURTH: Tenant hereby represents and warrants that
except as hereinafter provided, no real estate broker has or
will represent it in this transaction.
EXECUTI0N FORTY-FIFTH: This Lease shall become effective only when
it signed by a duly authorized representative of each of the
parties and delivered to the other party. This Lease is
being executed simultaneously in four counterparts, two of which
shall be delivered to Tenant. Each of such full, executed
counterparts shall be deemed an original and it shall not be
necessary in making proof of this Lease to produce or account
for more than one such counterpart.
POSSESSION FORTY-SIXTH: If Landlord is unable to give possession of
the [ILLEGIBLE] premises on the date of the commencement of the
term hereof, because Of the holding-over or retention of
possession of any tenant, under tenant or occupants, or if the
premises are located in a building being constructed, because
such building has not been sufficiently completed to make the
premise ready for occupancy or because of the fact that a
certificate of occupancy has not been procured or for any other
reason. Landlord shall not be subject to any liability for
failure to give possession on said date and the valid 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 the Inability to obtain
possession) until after Landlord 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 the Lease, Tenant covenants and
agrees that such occupancy shall be deemed to be under all the
terms, covenants; conditions and provisions of this Lease,
except as to the covenant to pay rent. The provisions of this
Paragraph are intended to constitute "an express provision to
the contrary" within the meaning of Section 223-a of the New
York Properly Law.
(17)
Rider No. 2 Attach To and Made a Part of the Lease dated
as of the 11th day of July, 1988, between Xxxxx X. Xxxxx
Associates, Inc., as Agent for Spring and America
Associates, Xxxxxx X. Mount and Xxxxx X. Xxxxx, as
Landlord, and Butterick Company Inc., as Tenant,
Consisting of Pages 18 through 24, inclusive
THIRTEENTH (continued): If requested to do so by Tenant, Landlord will request
the holder of any of the foregoing mortgages or the Landlord under any of the
foregoing leases to execute and deliver a "Non-Disturbance" Agreement to Tenant
and will permit Tenant to have direct access to such holder or Landlord for that
purpose, but the foregoing shall not be construed as an obligation on the part
of Landlord to achieve such a result.
SEVENTEENTH(a) (continued): The Tenant shall not be liable for any loss or
damage to the Landlord's property or interest of whatever nature, in, on, about
or relating to the premises, resulting from fire and other casualty covered by
insurance, whether or not occasioned by the negligence of the Tenant, its
servants, agents, employees or otherwise, nor shall the Landlord be responsible
for any like damage to the Tenant's property or installations, whether or not
caused by the negligence of the Landlord or its servants, other tenants, agents,
employees, or otherwise.
The Landlord, as to the premises, and the Tenant as to
the Tenant's furnishings and other property and any improvements made therein at
the Tenant's expense, hereby release one another from all liability for any loss
or damage caused by fire or any of the risks enumerated in standard extended
coverage insurance. This release is conditioned upon the inclusion in their
respective policies of insurance of a provision stating that such release shall
not adversely affect said policies or prejudice any right of the insured to
recover thereunder. The Landlord and Tenant agree that their respective
insurance policies will include the aforesaid provisions so long as the same is
obtainable without extra cost, or if extra cost be charged, so long as the party
for whose benefit the clause is obtained shall pay such extra cost. If an extra
cost shall be chargeable therefore, the party so affected shall advise the other
thereof and the amount of extra cost, and the other party at its election, may
pay the same or decline to so pay, in which event the release from liability
given to said party by this article SEVENTEENTH (a) shall be deemed to be
withdrawn and of no force and effect.
The Landlord will notify the Tenant whether or not the
Landlord intends to repair the premises within thirty (30) days following the
occurrence of the damage and will also furnish the Tenant with the Landlord's
best estimate of the length of time which will be required to restore the
premises to a useable condition. In the event that the period of time required
to restore the premises to a usable condition, as estimated by the Landlord, is
more than one hundred eighty (180) days, then the Tenant may, at any time within
twenty (20) days following receipt of the Landlord's notice of the Landlord's
election to restore and the Landlord's estimate of time required to restore,
notify the Landlord of the Tenant's election to terminate this lease, naming a
date for termination which is not less than ten (10) days following the date of
the Tenant's notice of election to terminate. If the Tenant shall so notify the
Landlord, the Landlord will have no obligation with regard to the restoration of
the premises for the Tenant's use and the term of the Lease shall come to an end
on the date mentioned in Tenant's notice as if that were the date herein
originally provided for the termination of the term.
EIGHTEENTH (continued): (1) For purposes of this Article
EIGHTEENTH, (i) the transfer of a majority of the issued and outstanding capital
stock of any corporate tenant, or of a corporate subtenant, or the transfer of a
majority of the total interest in any partnership tenant or subtenant, however
accomplished, whether [ILLEGIBLE] single transaction or in a series of related
or unrelated transactions, shall be deemed an assignment of this Lease, or of
such sublease, as the case may be, (any of the foregoing being hereafter
referred to as a "Stock Transfer") (ii) any person or legal representative of
Tenant, to whom Tenant's interest under this
(18)
[ILLEGIBLE] passes by operation of law, of otherwise shall be bound by the
provisions of this Article EIGHTEENTH, and (iii) a material modification or
amendment of a sublease shall be deemed a, sublease.
(2) The provisions of this Article EIGHTEENTH shall not apply to (a)
assignments to (i) a corporation into or with which Tenant is merged or
consolidated or an entity to which substantially all of Tenant's assets are
transferred or (ii) a Stock Transfer (provided such merger, or consolidation or
transfer of assets or Stock Transfer is for a good business purpose and not
principally for the purpose of transferring this Lease or the leasehold estate
created hereby, and provided further, that the resultant corporation or the
assignee, as the case may be, has a net worth at least equal to or in excess of
the net worth of Tenant immediately prior to such merger, or consolidation or
transfer), or (b) a subletting or an assignment to an Affiliated Entity,
provided the same is for a good business purpose and not principally for the
purpose of avoiding the application of Article EIGHTEENTH. As used in this
Article EIGHTEENTH an "Affiliated Entity" means a corporation controlled by,
controlling or under common control with the Tenant. A corporation, for this
purpose, shall not be deemed controlled by another unless at least fifty-one
(51%) percent of its voting stock is owned both beneficially and of record by
such other.
(3) Any assignment or subletting, whether or not Landlord's consent
is required, shall be made only if, and shall not be effective unless all of the
following shall have been fulfilled at least ten (10) days prior to the
effective date of the contemplated assignment or subletting;
(a) Tenant shall furnish Landlord with the name and business address
of the proposed subtenant or assignee, information with respect to the nature
and character of the proposed subtenant's or assignee's business or activities,
and current financial information with respect to net worth, credit and
financial responsibility of the proposed subtenant or assignee;
(b) In the case of an assignment, Tenant shall deliver to Landlord
an executed counterpart thereof, and all relevant ancillary agreements with the
proposed assignee (including all documents from which the considerations to be
received by Tenant referred to in Section 7 below can be ascertained);
(c) In the case of a subletting, Tenant shall deliver to Landlord,
an executed counterpart of the sublease and all relevant ancillary agreements
with the sublessee (including all documents from which the considerations to be
received by Tenant referred to in Section 7 below can be ascertained);
(d) in the case of an assignment, the assignee shall execute,
acknowledge and deliver to Landlord a notarially acknowledged agreement, in
form and substance reasonably satisfactory to Landlord, whereby the assignee
shall assume and agree to fulfill the obligations and performance of this Lease
and the assignment and agree to be personally bound by and upon the covenants,
agreements, terms, provisions and conditions hereof on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
of this Article EIGHTEENTH hereof shall, notwithstanding such an assignment or
transfer, continue to be binding upon it in the future;
(e) Tenant together with requesting Landlord's consent hereunder
shall obligate itself to pay Landlord as Additional Rent the reasonable cost
imposed by Landlord to review the requested consent including any reasonable
attorneys' fees incurred by Landlord;
(f) Tenant shall agree to pay, in the case of a sublease, all costs
incurred with respect to providing reasonably appropriate means of ingress and
egress from the sublet space or to separate the sublet space from the remainder
of the Premises; and
(19)
(g) Each sublease or assignment referred to in clauses (b) and (c) noted
shall specifically state that (i) it is subject to all of the terms, covenants,
agreements, provisions, and conditions of this Lease, (ii) the subtenant or
assignee as the case may be, will not have the right to a further assignment
thereof or sublease thereunder, or to allow the Premises to be used by others,
without the consent of Landlord in each instance, (iii) a consent by Landlord
thereto shall not be deemed or construed to modify, amend or affect the terms
and provisions of this Lease, or Tenant's obligations hereunder, which shall
continue to apply to the Premises, and the occupants thereof, as if the sublease
or assignment had not been made, (iv) if Tenant defaults in the payment of any
Rental, Landlord is authorized to collect any Rental due or accruing from any
assignee, subtenant or other occupant of the Premises and to apply the net
amounts collected to the Rental, (v) the receipt by Landlord of any amounts from
an assignee or subtenant, or other occupant of any part of the Premises shall
not be deemed or construed as releasing Tenant from Tenant's obligations
hereunder or the acceptance of that party as a direct tenant, and (vi) at the
option of Landlord, in the case of a sublease, if this Lease shall terminate or
expire, the sublease shall nonetheless continue in full force and effect and the
subtenant thereunder shall attorn to the Landlord.
(4) Tenant covenants that, notwithstanding any assignment of this Lease or
of the leasehold estate created thereby by the Tenant or any, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
Rental by Landlord from an assignee or transferee or any other party, Tenant
shall remain fully and primarily liable for the payment of the Rental due and to
become due under this Lease and for the performance of all of the covenants,
agreements, terms, provisions and conditions of this Lease on the part of Tenant
to be performed or observed.
(5) The liability of Tenant, and the due performance by Tenant of the
obligations on its part to be performed under this Lease, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made by Landlord or any grantee or assignee of Landlord, by way of mortgage or
otherwise, extending the time of or modifying any of the obligations
contained in this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations on Tenant's part to be performed under this Lease, and
Tenant shall continue liable hereunder. If any such agreement or modification
operates to increase the obligations of a Tenant, the liability under this
paragraph (5) of the tenant named in the Lease or any of its successors in
interest, (unless such party shall have expressly consented in writing to such
agreement or modification) shall continue to be no greater than if such
agreement or modification had not been made. To charge Tenant named in this
Lease and its successors in interest, no demand or notice of any default shall
be required, Tenant and each of its successors in interest hereby expressly
waiving any such demand or notice.
(6) Landlord shall not unreasonably withhold or delay its consent where
such consent is required (i) to an assignment of this Lease and the leasehold
estate hereby created, or (ii) a subletting of the whole or any part of the
Premises for any period less than the remainder of the Term, provided:
(a) The proposed subtenant or assignee is a party whose reputation,
financial net worth, credit and financial responsibility is, considering the
responsibilities involved, reasonably satisfactory to Landlord.
(b) The nature and character of the proposed subtenant or assignee, its
business or activities and intended use of the Premises is, in Landlord's
reasonable judgment, in keeping with the standards of the building and the area
in which the Premises are located and does not conflict with the provisions of
Article First of this Lease;
(c) No such assignment or subletting shall constitute or cause (with or
without notice or lapse of time or otherwise) a default under any Mortgage;
(20)
(d) Tenant shall have complied with all of the provisions or hereof;
(e) In the case of a subletting of a portion of the Premises, the portion
so sublet shall be regular in shape and suitable for normal renting purposes;
(f) In the case of a subletting, there shall be no more than one sublease
in effect on any floor including the portion of the premises on the 13th floor,
unless Tenant does not occupy any part of the premises on such floor in which
event there may be two subleases on such floor;
(g) The proposed subtenant or assignee shall not be a tenant at the
Building either under a direct lease with Landlord or under a sublease.
(7) If the Landlord shall give its consent to any assignment of this Lease
or to any sublease, Tenant shall in consideration therefor, pay to Landlord, as
Additional Rent
(a) in the case of an assignment, an amount equal to 50% of all
suras and other considerations paid to Tenant by the assignee for or by reason
of such assignment (including, but not limited to, suras paid for the sale of
Tenant's fixtures, leasehold improvements, equipment, furniture, furnishings or
other personal property, less, in the case of a sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns); and
(b) in the case of a sublease, 50% of any rents, additional charge
or other consideration payable under the sublease to Tenant by the subtenant
which is in excess of the Rental accruing during the term of the sublease in
respect of the subleased space (at the rate per square foot payable by. Tenant
hereunder on the basis that the whole thereof is attributable to the Building
pursuant to the terms hereof (including, but not limited to, sums paid for the
sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of the sale thereof, the
then net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns).
(c) The sums payable under (b) preceding shall be paid to Landlord
as and when paid by the subtenant to Tenant.
(d) Tenant shall furnish Landlord with a written statement,
semi-annually, certified by Tenant, from which the additional rent to which
Landlord may be entitled by reason of the application of clauses (a) and (b)
hereunder can be determined, tenant shall keep books of account in accordance
with generally accepted accounting principles consistently applied and
supporting material relating to the matters reflected in clauses (a) and (b)
hereof, and shall make the same available to Landlord at all reasonable times
for inspection at the Premises or at Tenant's main office for the purpose of
verifying any statement furnished or to be furnished by Tenant. Landlord shall
have the right to delegate this inspection to a duly authorized representative
and, in addition, may make such copies thereof as it reasonably requires, but
only for the purposes enumerated in this clause.
TWENTY-SECOND (continued): The foregoing indemnification shall not extend to
cover Landlord's willful or negligent acts,
(21)
TWENTY-NINIH (continued): In addition to the elevator service described in
paragraph TWENTY-NINTH of this lease, the landlord will maintain in service and
available for the use of the Tenant, one passenger elevator at all times on all
days of the week; including Saturoays, Sundays and legal holidays. In the event
that the Tenant requires freight elevator service on days or during hours in
addition to those prescribed under paragraph TWENTY-NINTH of this lease, the
Landlord will furnish the additional elevator service upon notice of the
Tenant's need therefor. Such notice nay be written or oral and shall be given as
long a time as practicable prior to the time when the additional freight
elevator service is required. The Tenant will pay for any additional freight
elevator service at the prevailing rate per hour, as established from time to
time by the landlord for such service at the building or in the buildings of the
landlord generally, for each hour during which the additional service is
supplied. All charges for additional freight elevator service shall be payable
when billed and in the event of default of payment therefor, the landlord may
refuse further service and the amount unpaid shall be deemed additional rent for
which the Landlord shall have all the remedies for collection herein specified
with respect to the rent. The failure on the part of the Landlord to furnish
such additional elevator service, if due to breakdowns, repairs, maintenance
strikes or other causes beyond the control of the Landlord, shall involve no
liability on the part of the Landlord not shall it constitute an eviction.
FORTIETH (continued): If, daring the term of this Lease, the average of the CPI
(as hereinafter defined) for any entire calendar year commencing January 1, 1991
exceeds the average of the CPI for the entire immediately preceding, calendar
year by more than ten (10%) percent, then, subject to the terms of the next
sentence, the annual base rent then payable under this Lease shall be increased
by an amount equal to 50% of the product obtained by multiplying (a) o (1) with
respect to the period from the commencement of this Lease until April 30, 1995,
the annual base rent in effect on the first day of this Lease, being May 1,
1990, or (ii) with respect to the period from May 1, 1995 to the expiration of
this Lease, the annual base rent in effect on May 1, 1995, by (b) the percentage
by which the average of the CPI for the entire subject calendar year exceeds
110% of the average of the CPI for the entire preceding calendar year.
Notwithstanding anything contained herein to the contrary, and notwithstanding
that the aforementioned calculations will be made every calendar year, the base
rent (if applicable) shall only be increased by reason of the application of the
calculations hereunder every other calendar year, such that the first such
increase in base rent (if applicable) shall occur on January 1, 1992 and the
next such increase in base rent (if applicable) shall occur On January 1, 1994,
and subsequent increases in base rent, if applicable, shall occur every two
years thereafter. Each such increase, if any, shall be in an amount equal to the
sum of the increases that would have otherwise arisen hereunder and are
attributable to the prior two calendar years, such that, as an example, the
increase in base rent effective o on January 1, 1994, if any, shall be the sum
of the applicable increases for the calendar years 1992 and 1993. As used
herein, the terra "CPI" shall mean the Consumer Price Index for All Urban
Consumers for New York, New York - Northeastern, N.J. published by the Bureau of
Labor Statistics of the U.S. Department of Labor with a 1982-84 = 100 base;
provided, however, that (i) if such into? (or any index substituted therefor as
hereinafter provided) shall cease to be published, then for the purposes of
this, paragraph there shall be substituted for such index such other index of a
similar kind published by a governmental or other nonpartisan organization as
may be reasonably selected by the landlord, and (ii) if there is any change in
the computation of said index or of any such substituted index (including a
change in the base year or included items), then for the purposes of this
paragraph such index as so changed shall be substituted for the index in effect
prior thereto.
FORTY-SEVENTH. Within 15 days after being requested by Landlord to do so, Tenant
shall furnish its certified balance sheet as at the last day of its last fiscal
year occurring ninety (90) days prior to such request to (a) an institutional
lender (broadly construed) from whom Landlord is seeking financing which will be
secured in whole or in part by a mortgage on the building or (b) a prospective
(and bona fide) buyer of the building. Such request must be accompanied by (a)
the name and nailing address of such institutional lender or buyer, as the case
may be, and (b) a statement from such
institutional lender or buyer, as the case may be, that it will hold such
certified balance sheet in confidence and not exhibit it or disclose its
contents to any unrelated third party except as required by law or regulation,
or, by subpoena or other legal process.
FORTY-EIGHTH. If and to the extent that any of the provisions of this Rider No.
2 conflict or are otherwise inconsistent with any of o the preceding provisions
of this lease, or of the Rules and Regulations attached to this lease, whether
or not such inconsistency is expressly noted in this Rider, the provisions of
this Rider shall prevail, and in case of inconsistency with said Rules and
Regulations, shall be deemed a waiver of such Rules and Regulations with respect
to Tenant to the extent of such inconsistency.
FORTY-NINTH. For the purposes of this lease and all agreements supplemental to
this lease, and all communications with respect thereto, unless the context
otherwise requires:
(1) The terra "base rent" or derivatives thereof shall mean rent at the
annual rental rate or rates reserved in the granting clause appearing at the
beginning of this lease, as such rate or rates may be changed from time to time
pursuant to the terms of this lease or any agreement modifying or otherwise
supplementing this lease.
(2) The terra "additional rent" shall mean all sums of money, other than
fixed rent, as shall become due and payable from Tenant to Landlord here under,
and Landlord shall have the same remedies therefor as for a default in payment
of fixed rent.
(3) The terras "rent" and "rents" shall mean and include base rent and/or
additional rent hereunder.
(4) Any provision in this lease that one party or the other or both shall
do or not do or shall cause or permit or not cause or permit a particular act,
condition or circumstance shall be deemed to mean that such party so covenants
or both parties so covenant, as the case may be. Tenant's obligations hereunder
shall be construed in every instance as conditions as well as covenants.
(5) The" term "Tenant" shall mean Tenant herein named or any assignee or
other successor in interest (immediate or remote) of Tenant herein named, when
Tenant herein named or such assignee or other successor in interest, as the case
may be, is in possession of the premises as owners, of the Tenant's estate and
interest granted by this lease, and also, if Tenant is not an individual or
corporation, all of the individuals, firms and/or corporations or other entities
comprising Tenant.
(6) If Landlord named herein, or any assignee of the interest of Landlord
herein, shall be named as agent, the term "Landlord" as used herein shall be
deemed to include the principal(s) of such agent, whether disclosed or
undisclosed.
(7) The term "in full force and effect" whenever used in reference to this
lease as a condition to the existence or exercise of a right on the part of
Tenant shall be construed in each instance as including the further condition
that at the time in question no default on the part of Tenant exists, and no
event has occurred which has continued to exist for such period of time (after
the notice, if any, required by this lease) as would entitle Landlord in either
such instance to terminate this lease or to dispossess Tenant.
(23)
(8) All references in this lease to numbered Articles and lettered
Exhibits are references to Articles of this lease and Exhibits annexed to (and
thereby made part of) this lease, as the case may be, unless expressly otherwise
designated in the context in which used.
(9) The words "include", "including" and "such as" shall each be
construed as if followed by the phrase "without being limited to". The words
"herein", "hereof", "hereby", "hereunder" and words of similar import shall be
construed to refer to this lease as a whole and not to any particular Article or
subdivision thereof unless expressly so stated. The rule of ejusdem generis
shall not be applicable to limit a general statement following or referable to
an enumeration of specific matters, to matters similar to the matters
specifically mentioned. Words and phrases used in the singular shall be deemed
to include the plural and vice versa and nouns and pronouns used in any
particular gender shall be deemed to include any other gender, as the sense of
the context may permit.
(10) If, at any time during the last month of the term of this Lease,
Tenant shall have removed all or substantially all of Tenant's property from the
Premises, Landlord may, and Tenant hereby irrevocably grants to Landlord a
license to, immediately enter and alter, renovate and redecorate the premises,
without elimination, diminution or abatement or rent, or incurring liability to
Tenant for any compensation, and such acts shall have no effect upon this Lease.
(11) Without incurring any liability to Tenant, Landlord may permit access
to the premises and open the same, whether or not Tenant shall be present, upon
demand of any receiver, trustee, assignee for the benefit of creditors, sheriff,
xxxxxxxx or court officer entitled to, or reasonably purporting to be entitled
to such access for the purpose of taking possession of, or removing, Tenant's
property or for any other lawful purpose (but this provision and any action by
Landlord hereunder shall not be deemed a recognition by Landlord that the person
or official making such demand has any right or interest in or to this Lease, or
in or to the premises), or upon demand of a governmental authority.
(12) Tenant shall not be entitled to exercise any right of termination or
other right or option granted to it by the Lease (if any) at any time when
Tenant is in default in the-perforroance or observance of any of the covenants,
terms, provisions or conditions on its part to be performed or observed under
this Lease.
(13) Tenant shall not occupy any space in the"building (by assignment,
sublease or otherwise) other than the premises, except with the priorn written
consent of Landlord in each instance.
(14) Tenant will not clean, nor require, permit, suffer or allow any
window in the premises to be cleaned, from the outside in violation of Section
202 of the Labor Law or of any Requirement.
(15) Tenant agrees that its sole remedies in cases where Landlord's
reasonableness in exercising its judgment or withholding its consent or approval
is applicable pursuant to a specific provision of this Lease, or any rider or
separate agreement relating to this Lease, if any, shall be those in the nature
of an injunction, declaratory judgment, or specific performance, the rights to
money damages or other remedies being hereby specifically waived.
(16) This Lease shall not be binding upon Landlord unless and until it is
signed by Landlord and a signed copy thereof is delivered by Landlord to Tenant.
(17) Time shall be of the essence with respect to the exercise of any
option granted Tenant under this Lease.
(18) The Exhibits annexed to this lease, shall be deemed part of this
lease with the same force and effect as if such Exhibits were numbered Articles
of this Lease.
(24)
FIFTIETH: Landlord will do the following work (which unless otherwise
specifically provided herein, shall be of manufacture, design, material,
capacity, quality, finish and color of the standard adopted by the Landlord for
the building) utilizing, at its option, namely: A. Renovating the men's and
ladies rooms in the elevator lobby on the 13th floor of the building, and B.
Separating the 13th floor of the building into sections consisting of (i) the
portion of the premises on such floor, (ii) the balance of the rentable space on
such floor, and (iii) the common areas of such floor, inclusive of (y)
instituting a building standard entrance to the section of the floor referred in
Subdivision (ii) preceding, and (z) separating the building service on such
floor so as to enable each such section to be independently operated and
maintained and such systems available and operable within each such section. The
cost of fulfilling A preceding shall be borne solely by Landlord and the
reasonable cost of fulfilling B preceding shall be borne solely by Tenant who
shall pay such reasonable costs to Landlord after completion, on demand, as
Additional Rent. Any dispute with regard to the cost of B shall be resolved by
arbitration as in this Lease provided. Pending such resolution, Tenant shall pay
the disputed cost. The commencement date of this lease, namely, May 1, 1990,
shall not be postponed by reason of the non-completion of the foregoing work by
May 1, 1990. The Tenant agrees to permit the Landlord and its designees to enter
the premises in order to perform the foregoing work and the Landlord may perform
such work while the Tenant is in occupancy of the premises and the Tenant shall
not be entitled to any abatement of rent or other compensation by reason
thereof.
FIFTY-FIRST: Each party agrees, at any time and from time to time, as requested
by the other party, upon not less than ten (10 days prior notice, to execute and
deliver to the other 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 as modified and stating the modifications), certifying the dates to
which the respective items of rent have been paid, and stating whether or not,
to the best knowledge of the signer, the other party is in default in
performance of any of its obligations under this Lease, and, if so, specifying
each such default of which the signer may have knowledge, it being intended that
any such statement delivered pursuant hereto may be relied upon by others with
whom the party requesting such certificate may be dealing.
FIFTY-SECOND: Notwithstanding anything confirmed in this Lease to be contrary so
long as Tenant named herein (Butterick Company, Inc.) or an Affiliated Entity
(as defined in Article Eighteenth hereby) is in actual occupancy of not less
than 60% useable area of the premises, and its corporate name or trademark
contains the word "Butterick", Landlord agrees, subject to Requirements, that
the building shall continue to be named "Butterick Building".
(25)
RULES AND REGULATIONS
1. The Tenant shall not clean, nor require, permit or allow any window in
the demised premises to be cleaned from the outside in violation of Section 202
of the Labor Law or of the Rules of the Board of Standards and Appeals, or of
any other board or body having or asserted jurisdiction;
2. All machinery shall be kept in approved settings, sufficient to absorb
any shock and prevent any noise, vibration or annoyance in the building of which
the demised premises are a part and shall be provided with oil pans between such
machinery and the floor beneath it, sufficient to prevent the seepage of oil on
or into the floors;
3. No acid that in any way may injure any of the pipes or plumbing
equipment in the building shall be poured or allowed to drain into the pipes or
plumbing equipment thereof, but shall in the event that the building is provided
with an acid line be poured only therein, or if there be no acid line, shall be
neutralized in a manner satisfactory to the Landlord. No substance which may
cause any objectionable odor shall be left in the demised premises;
4. During the cold season, the windows shall be kept closed to maintain
the temperature of the demised premises and to prevent any freezing thereof, or
of any equipment or appliance therein;
5. All trucks, vehicles or conveyances used by the Tenant in the demised
premises shall have rubber-tired wheels;
6. The Tenant's employees, except clerical or executive help, shall, if
the Landlord so directs, at all times use only the combination passenger and
freight elevator, if any, in going into or coming out of the demised premises;
7. No sign or lettering shall be inscribed on any door, wall or window of
the demised premises which is visible from the street or the portion of the
building used in common by other tenants except such as may be approved in
writing by the Landlord or its agents or designee;
8. No additional locks or bolts shall be placed anywhere upon or within
the demised premises or any on rooms therein, unless duplicate keys thereto he
given to the Landlord and all such keys must, on the termination of this lease,
be surrendered to the Landlord;
9. The Landlord may exclude any persons visiting or attempting to visit
the premises between 7 P. M. and 8 A. M. and on Saturdays, Sundays and legal
holidays, and may require such persons to sign the Night Report and may require
a pass for any such person, signed by the Tenant ;
10. The sanitary and safety facilities used solely by the Tenant or by the
Tenant in common with other occupants of the building of which the demised
premises are a part, shall be used only for the purposes for which they were
constructed;
11. No signs, signals, devices, displays, sounds or advertisements visible
or audible from the street or from the halls and other parts of the building
used in common by the Tenant and other tenants shall be inscribed, erected or
maintained unless the kind, style, location and manner thereof shall have been
approved in writing by the Landlord and if any sign, signal, sound display or
advertising be erected, made or inscribed without such approval, the Landlord
may remove the same and charge the cost of so doing to the Tenant as additional
rent. Any sign or display which may be installed by the Tenant shall be kept in
good order and repair and in a neat and attractive condition. The Landlord
reserves the right to use the roof and outside walls surrounding the premises
for sign purposes. The Landlord may remove any sign or signs or displays in
order to paint the premises or any part of the building, or make any repairs,
alterations or improvements in or upon the premises or building, or any part
thereof, provided it causes the same to be removed and replaced at the
Landlord's expense, whenever the said painting, repairs, alterations or
improvements shall have been completed;
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12. No advertising which, in the opinion of the Landlord tends to impair
the reputation of the building or its desirability as a loft or office building,
shall be published or caused to be published by the Tenant and, upon notice from
the Landlord, the Tenant shall refrain from or discontinue, such advertising;
13. Awnings, antennae, aerials, ventilating and air-conditioning apparatus
or other projections from the windows or outside walls of the demised premises
shall not be erected or installed;
14. The lights, skylights, entrances, passages, courts, elevators,
stairways, loading platforms, halls or any part of the building intended for the
use in common by the Tenant and the other occupants thereof shall not be
obstructed or encumbered (whether by means of storing of materials and skids or
otherwise). In the event of any such encumbrance or obstruction, the Land-lord
may remove the material causing such encumbrance or obstruction and cause it to
be stored and charge the cost of doing so to the Tenant. No courtyard or yard
appurtenant to the premises or the building shall be used for parking vehicles
of any kind;
15. No part of the premises or the building shall be marked, painted,
drilled into, or in any way defaced. No laying of linoleum, or other similar
floor covering so that the same shall come in direct contact with the floor of
the demised premises shall be made; and if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water.
Cements and other similar adhesive material shall not be used. Removal of any
alterations, decorations or improvements in compliance with paragraph Fourth of
this lease shall include the removal of all linoleum, lining and adhesive
material;
16. No part of the demised premises shall be used in a manner or for a
purpose that is substantially objectionable to the Landlord or to another
tenant, or which in the reasonable judgment of the Landlord, might cause
structural injury to the building;
17. The Tenant's employees shall not stand or loiter around the hallways,
stairways, elevators, front, roof or any other part of the building used in
common by the occupants thereof;
18. No load shall be placed upon any floor of the building exceeding the
floor load per square foot area which such floor was designed to carry, and all
loads shall be evenly distributed. The Landlord reserves the right to prescribe
the weight and position of all safes, machinery and other personal property in
the premises which must be placed so as to distribute their weight;
19. Nothing shall be thrown out of the windows or doors, or down the
passages or skylights of the building, nor shall any of them be covered,
obstructed or encumbered. No improper noises shall be made in the building, nor
shall birds or animals be brought therein;
20. Where freight elevators are provided by the building, all deliveries
shall be made to or from the demised premises exclusively by means of such
elevators;
21. Any one doing janitorial work for the Tenant shall at all times be
subject to order and direction by the superintendent of the building, although
he shall not be the servant of either the superintendent or the Landlord;
22. No peddling, soliciting and canvassing shall be permitted in the
premises or by the Tenant's employees elsewhere in the building;
23. The Landlord may prescribe, and from time to time vary, the time for
any removals or deliveries from or into the premises, at any time, and such
prescriptions shall apply whether or not the material so removed or received is
the property of the Tenant. Removals or deliveries of safes, machinery and any
other heavy or bulky matter shall be done only upon written authorization of the
Landlord and only in such manner and by such persons as may be acceptable to the
Landlord, and the Landlord may require any further assurances or agreements or
indemnity from
(27)
the Tenant and the movers to that effect. The Landlord reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations or the
lease of which these Rules and Regulations are a part;
24. The Tenant shall not permit its servants, employees, agents, visitors
or licensees, at any time to bring or keep upon the premises any inflammable,
combustible or explosive fluid, chemical or substance or cause or permit any
unusual or objectionable odors to be produced upon or emanate from the premises;
25. The passenger and service elevator, other than automatic sell-service
elevators, if any, shall be operated only by employees of the Landlord, and must
not in any event be interfered with by the Tenant, his servants, employees,
agents, visitors or licensees. Elevators will be operated only during such hours
as the Landlord may from time to time determine;
26. The Tenant shall not use any other method of heating than that
supplied by the Landlord;
27. If the premises consist of basement space, or if any merchandise of
the Tenant is stored in the basement portion of the building, all such
merchandise shall, at the Tenant's own cost and expense, be placed entirely on
skids or platforms, which will raise such merchandise at least six inches from
the floor;
28. No drilling in floors, walls or ceilings shall be done except in
compliance with paragraph Fourth of this lease and no such drilling shall be
done during usual business hours unless authorized by the Landlord in writing;
29. No vending machine shall be installed or permitted to remain in the
premises unless the Landlord shall first have given its specific written
authorization for the installation of each such machine. The Tenant shall not
authorize or permit any vendor of sandwiches, coffee, or other foods, candies or
beverages to enter the premises for the purpose of soliciting sales of such
wares to the Tenant's employees.
THE TERMS, COVENANTS AND CONDITIONS contained in the foregoing lease shall
be binding on, and shall enure to the benefit of the parties hereto, and their
respective legal representatives, successors, and assigns, but no assignment
made or purported to be made in violation of the provisions of this lease shall
vest in such assignee any right or title in or to this lease or in or to the
estate hereby created.
In WITNESS WHEREOF, this agreement, has been signed and sealed by the
parties hereto, the day and year first above written.
Landlord:
Xxxxx X. Xxxxx Associates, Inc.
/s/ [ILLEGIBLE]
By ----------------------------------
Exec.V.P. President, as
Agent for Spring and America
Associates, Xxxxx X. Xxxxx and
Xxxxxx X. Mount, and not individually
Tenant:
Butterick Company, Inc.
/s/ [ILLEGIBLE]
By --------------------------------
President
(28)
[ILLEGIBLE] OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of August, 1988, before me personally came Xxxxxxx
Xxxxxxxxxx, to me known, who, being by me fuly sworn, did depose and say that he
resides at 00 Xxxxxxxx Xxxxxx, xxxx Xxxxxxxxxx, Xxx Xxxx.
; that he is the
President of Xxxxx X. Xxxxx Associates, Inc., the corporation described in and
which executed the foregoing document; and that he signed his name thereto by
order of the Board of Directors of said corporation.
/s/ Xxxx Xxxxx Xxxxxx
--------------------------------
XXXX XXXXX XXXXXX
Notary public, State of New York
No. 00-0000000
Qualified In Kings County
STATE OF NEW YORK ) Commission Expires Sept.30, 1987
)ss.:
COUNTY OF NEW YORK )
On the 16th day of August, 1988, before me personally came Xxxx Xxxxxxx,
to me known, who; being by me duly sworn, did depose and say that he resides at
[ILLEGIBLE] ; that he is the President of Butterick Company, Inc., the
corporation described in and which executed the forregoing document; and that he
signed his name thereto by order of the Board of Directors of said corporation.
/s/ Xxxx Xxxxxx
--------------------------------
XXXX XXXXXX
Notary public state of New York
No. 00-0000000
Qualified In Queens County
Commission Expires
October 31, 1989
(28)
EXHIBIT "A"
[5TH FLOOR PLAN]
[6TH FLOOR PLAN]
[7TH FLOOR PLAN]
[8TH FLOOR PLAN]
[12TH FLOOR PLAN]
[13TH FLOOR PLAN]
EXECUTION COPY
EXHIBIT "B"
THE SUBLEASE PREMISES
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[6TH FLOOR PLAN]
[7TH FLOOR PLAN]
EXECUTION COPY
EXHIBIT "C"
CONSENT TO SUBLEASE
XXXXX X. XXXXX ASSOCIATES, INC., as agent for SPRING AND AMERICA
ASSOCIATES and XXXXXX X. MOUNT and XXXXX X. XXXXX, (collectively "Landlord")
hereby consent to the subletting by THE XxXXXX PATTERN COMPANY, as
successor-in-interest by merger to Butterick Company, Inc. ("Tenant") to XXXXXX
INTERACTIVE INC. ("Subtenant"), of certain premises (the "Sublet Space") in the
building known as 161 Avenue of the Americas, New York, New York (the
"Building"), more particularly described in that certain Agreement of Sublease
dated as of June _________, 2004 (the "Sublease"), between Tenant and Subtenant,
which Sublet Space was demised Landlord to a predecessor-in-interest of Tenant
pursuant to a lease dated August 16, 1988, as amended on July 12, 1995, May 24,
1996, March 21, 1997, September 26, 1997 and January, 2000 (which lease, as the
same may have been and may hereafter be amended, is hereinafter called the
"Lease"), such consent being subject to and upon the following terms and
conditions, to each of which Tenant and Subtenant consent and agree to be bound:
1. The Sublease shall be subject and subordinate at all times to all of
the covenants, agreements, terms, provisions and conditions of the Lease and of
this Consent. Neither Tenant nor Subtenant shall do or permit anything to be
done in connection with the Sublease or the Subtenant's occupancy of the Sublet
Space which will violate the Lease.
2. Subtenant will not, without the prior written consent of the
Landlord, in each instance, assign the Sublease or this Consent or sublet the
Sublet Space or any part thereof.
3. Although a duplicate original of the Sublease has been delivered to
the Landlord for its information, Landlord is not a party thereto and is not
bound by its provisions; however, any modification or amendment to the Sublease
without the prior written consent of Landlord in each instance, shall be deemed
a default under the Lease.
4. Subtenant will use the Sublet Space for the purposes set forth in
the Lease and for no other purpose. Except for changes which may be permitted by
the Lease, no alterations, additions (including those affecting electric power)
or physical changes will be made by Subtenant in the Sublet Space or any part
thereof without Landlord's prior written consent in each instance.
5. Tenant shall continue during the term of the Lease to be liable and
responsible for the due performance of all of the covenants, agreements, terms,
provisions and conditions set forth in the Lease on the Tenant's part to be
performed, including, but not limited to, its obligation to pay all charges or
sums which shall become due to Landlord from Subtenant by reason of its
occupancy of the Sublet Space it being understood and agreed however that in no
event shall anything contained in this Paragraph 5 limit, diminish or otherwise
impair Subtenant's obligations to pay such charges or sums pursuant to the terms
of the Sublease. Nothing herein
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EXECUTION COPY
contained is intended to waive or shall be construed to waive any breach of the
Lease or any right of the Landlord against any person, firm, association,
corporation or entity liable or responsible for the performance of the Lease or
to enlarge or increase Landlord's obligations thereunder.
6. Subtenant agrees that upon Subtenant's receipt of written notice
from Landlord following a default by Tenant under the Lease and continuation of
such default beyond any applicable notice or cure period directing that rents
and other sums due from time to time under the Sublease be paid directly to
Landlord (a "Direct Payment Notice"), Subtenant shall pay directly to Landlord,
and not to Tenant, all rents and other sums required to be paid by Subtenant to
Tenant pursuant to the Sublease, and such payment, though made directly to
Landlord, shall be deemed to be full and punctual performance by Subtenant of
its rental payment obligations under the Sublease. Subtenant further agrees that
no sums paid by Subtenant to Tenant after Subtenant's receipt of a Direct
Payment Notice shall be credited or deemed to be credited against any sums due
under the Sublease. Subtenant agrees not to pay rent due under the Sublease more
than one (1) month in advance.
7. Tenant acknowledges and agrees that (a) upon the occurrence of any
of the defaults described in the Lease and the continuation of such default
beyond any applicable notice or cure period, Landlord shall be entitled to
collect and receive rents and all other sums due under the Sublease; (b) upon
Subtenant's receipt of Landlord's Direct Payment Notice, Subtenant is authorized
and is hereby directed to pay directly to Landlord all rents and all other sums
due from Subtenant to Tenant under the Sublease from time to time; and (c)
Subtenant shall be under no duty or obligation to make any inquiry whatever
regarding any such notice from Landlord, it being understood that Subtenant
shall be entitled to rely upon any Direct Payment Notice as conclusive evidence
of the matters stated therein and of Subtenant's right to act as directed
thereby. Subtenant shall not be liable to Tenant for any performance or payment
required under the Sublease if such performance or payment is, pursuant to a
Direct Payment Notice, made as directed by such notice.
8. If Landlord shall give notice to Tenant to terminate the Lease or
Tenant's rights thereunder, then Landlord shall so notify Subtenant (an
"Attornment Notice", which Landlord may give together with or separately from a
Direct Payment Notice) and, should Subtenant wish to assume Tenant's obligations
under the Lease, Subtenant shall so notify Landlord (an "Acceptance Notice"),
within 30 days of its receipt of the Attornment Notice and Subtenant shall be
bound and obligated to, and agrees to recognize and attorn to, Landlord as
landlord under the Sublease from and as of the date of the Acceptance Notice,
provided, however, that effective as of the date of the Attornment Notice, the
Sublease shall be deemed to be amended and restated (the "New Sublease") to
comprise terms and conditions identical (as to rental and all other terms) to
the Lease effective as of the date of the Attornment Notice, between Landlord,
as, lessor, and Subtenant, as lessee. Under no circumstance shall Landlord be
deemed to assume or to have assumed any of Tenant's obligations under the
Sublease. Under no circumstance shall Subtenant be deemed to assume or to have
assumed any of Tenant's obligations under the Lease. Notwithstanding the
foregoing, in the event that Subtenant does not elect to assume Tenant's
obligations under the Lease, then either party may at anytime thereafter cancel
the Sublease on not less than 60 days notice; provided, said termination of the
Sublease shall not affect or
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EXECUTION COPY
diminish Subtenant's rights or remedies as against Tenant under the Sublease
relative to Tenant's default under the Lease. Landlord also agrees to
simultaneously provide to Subtenant a copy of any notice of default delivered to
Tenant under the Lease.
9. Landlord shall not be liable to Subtenant for any monies paid to
Tenant for rent under the Sublease paid more than 30 days in advance, nor shall
any such sums be deemed an offset against any future sums owed to Landlord under
the Lease.
10. Landlord confirms that the expiration date of the Lease is
April 30, 2012 and confirms that its execution of the this Consent constitutes a
waiver of its right of recapture with respect to the Sublease.
11. Nothing herein shall be construed to modify, waive, impair or affect
any of the terms, covenants, conditions or provisions of the Lease or to waive
any breach thereof or any rights of Landlord against Tenant, any guarantor,
person, firm, association or corporation liable or responsible for the
performance thereof, or to enlarge or increase Landlord's obligations under the
Lease, or reduce any right or remedy therein set forth, or at law or equity, and
all provisions, covenants, agreements, terms and conditions of the Lease are
hereby declared to be in full force and effect. Any provision herein or in the
Sublease which would have the effect of increasing or expanding Landlord's
obligations or reducing its rights or remedies under the Lease against the
Tenant, or at law or equity, is hereby deemed null and void.
12. If any provisions of this Consent shall be at variance with
provisions of the Lease or Sublease, the provisions of this Consent shall
prevail. This Consent shall not be changed orally but only by an agreement in
writing signed by the party against whom the enforcement of such change is
sought.
13. This Consent may be executed in counterparts.
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EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as of the_____day of_____________, 2004.
TENANT
THE XxXXXX PATTERN COMPANY
By:_______________________________
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
SUBTENANT
XXXXXX INTERACTIVE INC.
By:_______________________________
Name:
Title:
LANDLORD
XXXXX X. XXXXX ASSOCIATES, INC,
As agent for Spring and Americas Associates,
A New York limited partnership, and
Xxxxxx X. Mount and Xxxxx X. Xxxxx, as
Tenants in Common
By:__________________________________________
Name:
Title:
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