STANDARD FORM OF LOFT LEASE The Real Estate Board of New York, Inc.
EXHIBIT 10.12
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STANDARD
FORM OF LOFT LEASE
The
Real Estate Board of New York,
Inc.
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Agreement
of Lease, made as of this 28 day of September, 2004, between URBAN DEVELOPMENT
PARTNERS (61), LLC, having an address c/o Urban Management Partners LLC, The
Urban Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 party of the first
part, hereinafter referred to as OWNER, and Xxxxx Xxxxxx Xxxx, Ltd., having a
principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Party
of the second part, hereinafter referred to as TENANT,
Witnesseth: Owner
hereby leases to Tenant and Tenant hereby hires from Owner the entire seventh
(7th) floor in the building known as 000 Xxxx 00xx Xxxxxx in the Borough of
Manhattan, City of New York for the term to ten (10) years, more or less until
such term shall sooner cease and expire as hereinafter provided) to commence on
the Commencement Date as defined in Paragraph 41(a)(f), and to end on the 30th
Day of September two thousand and fourteen (2014) and both dates inclusive, at
an annual rental rate of
See
Paragraph 41, below,
which
Tenant agrees to pay in lawful money of the United States which shall be legal
tender in payment of all debts and dues, public and private, at the time of
payment, in equal monthly installments in advance on the first day of each month
during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that Tenant shall
pay the first monthly installment(s) on the execution hereof (unless this lease
be a renewal).
In the
event that, at the commencement of the term of this lease, or thereafter, Tenant
shall be in default in the payment of rent to Owner pursuant to the terms of
another lease with Owner or with Owner’s predecessor in interest, Owner may at
Owner’s option and without notice to Tenant add the amount of such arrears to
any monthly installment of rent payable hereunder and the same shall be payable
to Owner as additional rent.
The
parties hereto, for themselves, their heirs, distributes, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
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Rent:
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1.
Tenant shall pay the rent as above and as hereinafter
provided.
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Occupancy:
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2.
Tenants shall use and occupy demised premises for Showroom for sale and
display of carpets and tapestries and home
furnishings.
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Alterations:
3. Tenant
shall make no changes in or to the demised premises of any nature without
Owner’s prior written consent. Subject to the prior written consent
of Owner, and to the provisions of this article, Tenant, at Tenant’s expense,
may make alterations, installations, additions or improvements which are
nonstructural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises using
contractors or mechanics first approved in each instance by
Owner. Tenant shall, at its expense, before making any alterations,
additions, installations or improvements obtain all permits, approval and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to
Owner. Tenant agrees to carry and will cause Tenant’s contractors and
sub-contractors to carry such xxxxxxx’x compensation, general liability,
personal and property damage insurance as Owner may require. If any mechanic’s
lien is filed against the demised premises, or the building of which the same
forms a part, for work claimed to have been done for, or materials furnished to,
Tenant, whether or not done pursuant to this article, the same shall be
discharged by Tenant within thirty days thereafter, at Tenant’s expense, by
payment or filing the bond required by law or otherwise. All fixtures
and all paneling, partitions, railings and like installations, installed in the
premises at any time, either by Tenant or by Owner on Tenant’s behalf, shall,
upon installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to Tenant no later
than twenty days prior to the date fixed as the termination of this lease,
elects to relinquish Owner’s right thereto and to have them removed by Tenant,
in which event the same shall be removed from the demised premises by Tenant
prior to the expiration of the lease, at Tenant’s expense. Nothing in
this Article shall be construed to give Owner title to or to prevent Tenant’s
removal of trade fixtures, moveable office furniture and equipment, but upon
removal of any such from the premises or upon removal of other installations as
may be required by Owner, Tenant shall immediately and at its expense, repair
and restore the premises to the condition existing prior to installation and
repair any damage to the demised premises or the building due to such
removal. All property permitted or required to be removed by Tenant
at the end of the term remaining in the premises after Tenant’s removal shall be
deemed abandoned and may, at the election of Owner, either be retained as
Owner’s property or removed from the premises by Owner, at Tenant’s
expense.
Repairs:
4. Owner
shall maintain and repair the exterior of and the public portions of the
building. Tenant shall, throughout the term of this lease, take good
care of the demised premises including the bathrooms and lavatory facilities (if
the demised premises encompass the entire floor of the building) and the windows
and window frames and, the fixtures and appurtenances therein and at Tenant’s
sole cost and expense promptly make all repairs thereto and to the building,
whether structural or non-structural in nature, caused by or resulting from the
carelessness, omission, neglect or improper conduct of Tenant, Tenant’s
servants, employees, invitees, or licensees, and whether or not arising from
such Tenant conduct or omission, when required by other provisions of this
lease, including Article 6, Tenant shall also repair all damage to the building
and the demised premises caused by the moving of Tenant’s fixtures, furniture or
equipment. All the aforesaid repairs shall be of quality or class
equal to the original work or construction. If Tenant fails, after
ten days notice, to proceed with due diligence to make repairs required to be
made by Tenant, the same may be made by the Owner at the expense of Tenant, and
the expenses thereof incurred by Owner shall be collectible, as additional rent,
after rendition of a xxxx or statement therefor. If the demised
premises be or become infested with vermin, Tenant shall, at its expense, cause
the same to be exterminated. Tenant shall give Owner prompt notice of
any defective condition in any plumbing, heating system or electrical lines
located in the demised premises and following such notice, Owner shall remedy
the condition with due diligence, but at the expense of Tenant if repairs are
necessitated by damage or injury attributable to Tenant, Tenant’s servants,
agents, employees, invitees or licensees as aforesaid. Except as
specifically provided in Article 9 or elsewhere in this lease, there shall be no
allowance to the Tenant for a diminution of rental value and no liability on the
part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner, Tenant or others making or failing to make any repairs,
alterations, additions or improvements in or to any portion of the building or
the demised premises or in and to the fixtures, appurtenances or equipment
thereof. It is specifically agreed that Tenant shall not be entitled
to any set off or reduction of rent by reason of any failure of Owner to comply
with the covenants of this or any other article of this lease. Tenant
agrees that Tenant’s sole remedy at law in such instance will be by way of any
action for damages for breach of contract. The provisions of this
Article 4 with respect to the making of repairs shall not apply in the case of
fire or other casualty with regard to which Article 9 hereof shall
apply.
Window
Cleaning:
5. Tenant
will not clean nor require, permit, suffer or allow any window in the demised
premises to be cleaned front the outside in violation of Section 202 of the New
York State Labor Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting
jurisdiction.
Requirements
of
Law, Fire
Insurance:
6. Prior
to the commencement of the lease term, if Tenant is then in possession, and at
all times thereafter. Tenant shall, at Tenant’s sole cost and
expense, promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, or the Insurance Services Office, or any similar body which shall
impose any violation, order or duty upon Owner or Tenant with respect to the
demised premises, whether or not arising out of Tenant’s use or manner of use
thereof, or, with respect to the building, if arising out of Tenant’s use or
manner of use of the demised premises of the building (including the use
permitted under the lease). Except as provided in Article 30 hereof,
nothing herein shall require Tenant to make structural repairs or alterations
unless Tenant has, by its manner of use of the demised premises or method of
operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto. Tenant shall not do
or permit any act or thing to be done in or to the demised premises which is
contrary to law, or which will invalidate or be in conflict with public
liability fire or other policies of insurance at any time carried by or for the
benefit of Owner. Tenant shall not keep anything in the demised
premises except as now or hereafter permitted by the Fire Department, Board of
Fire Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant’s occupancy. If by reason of failure to comply with the
foregoing the fire insurance rate shall, at the beginning of this lease or at
any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. In any action or proceeding
wherein Owner and Tenant are parties, a schedule or “make-up” or rate for the
building or demised premises issued by a body making fire insurance rates
applicable to said premises shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any
floor of the demised premises exceeding the floor load per square foot area
which it was designed to carry and which is allowed by law. Owner
reserves the right to prescribe the weight and position of all safes, business
machines and mechanical equipment. Such installations shall be placed
and maintained by Tenant, at Tenant’s expense, in settings sufficient, in
Owner’s judgement, to absorb and prevent vibration, noise and
annoyance.
Subordination:
7. This
lease is subject and subordinate to all ground or underlying leases and to all
mortgages which may now or hereafter affect such leases or the real property of
which demised premises are a part and to all renewals, modifications,
consolidations, replacements and extensions of any such underlying leases and
mortgages. This clause shall be self-operative and no further
instrument or subordination shall be required by any ground or underlying lessor
or by any mortgagee, affecting any lease or the real property of which the
demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
Tenant’s
Liability
Insurance
Property
Loss,
Damage,
Indemnity:
8. Owner
or its agents shall not be liable for any damage to property of Tenant or of
others entrusted to employees of the building, nor for loss of or damage to any
property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence of Owner, its agents, servants or employees; Owner
or its agents shall not be liable for any damage caused by other tenants or
persons in, upon or about said building or caused by operations in connection of
any private, public or quasi public work. If at any time any windows
of the demised premises are temporarily closed, darkened or bricked up (or
permanently closed; darkened or bricked up, if required by law) for any reason
whatsoever including, but not limited to Owner’s own acts, Owner shall not be
liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement or diminution of rent nor
shall the same release Tenant from its obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against and
from all liabilities, obligations, damages, penalties, claims, costs and
expenses for which Owner shall not be reimbursed by insurance, including
reasonable attorney’s fees, paid, suffered or incurred as a result of any breach
by Tenant, Tenant’s agents, contractors, employees, invitees, or licensees, of
any covenant or condition of this lease, or the carelessness, negligence or
improper conduct of the Tenant, Tenant’s agents, contractors, employees,
invitees or licensees. Tenant’s liability under this lease extends to
the acts and omissions of any sub-tenant, and any agent, contractor, employee,
invitee or licensee of any sub-tenant. In case any action or
proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant’s expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
Destruction,
Fire
and Other
Casualty
9. (a)
If the demised premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give immediate notice thereof to Owner and this lease
shall continue in full force and effect except as hereinafter set
forth. (b) If the demised premises are partially damaged or rendered
partially unusable by fire or other casualty, the damages thereto shall be
repaired by and at the expense of Owner and the rent and other items of
additional rent, until such repair shall be substantially completed, shall be
apportioned from the day following the casualty according to the part of the
premises which is usable. (c) If the demised premises are totally
damaged or rendered wholly unusable by fire or other casualty, then the rent and
other items of additional rent as hereinafter expressly provided shall be
proportionately paid up to the time of the casualty and thenceforth shall cease
until the date when the premises shall have been repaired and restored by Owner
(or sooner reoccupied in part by Tenant then rent shall be apportioned as
provided in subsection (b) above), subject to Owner’s right to elect not to
restore the same as hereinafter provided. (d) If the demised premises
are rendered wholly unusable or (whether or not the demised premises are damaged
in whole or in part) if the building shall be so damaged that Owner shall decide
to demolish it or to rebuild it, then, in any of such events, Owner may elect to
terminate this lease by written notice to Tenant, given within 90 days after
such fire or casualty, or 30 days after adjustment of the insurance claim for
such fire or casualty, whichever is sooner, specifying a date for the expiration
of the lease, which date shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the term of this lease shall
expire as fully and completely as if such date were the date set forth above for
the termination of this lease and Tenant shall forthwith quit, surrender and
vacate the premises without prejudice however, to Owner’s rights and remedies
against Tenant under the lease provisions in effect prior to such termination,
and any rent owing shall be paid up to such date and any payments of rent made
by Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Owner shall serve a termination notice as
provided for herein, Owner shall make the repairs and restorations under the
conditions of (b) and (c) hereof, with all reasonable expedition, subject to
delays due to adjustment of insurance claims, labor troubles and causes beyond
Owner’s control. After any such casualty, Tenant shall cooperate with
Owner’s restoration by removing from the premises as promptly as reasonably
possible, all of Tenant’s salvageable inventory and movable equipment,
furniture, and other property. Tenant’s liability for rent shall
resume five (5) days after written notice from Owner that the premises are
substantially ready for Tenant’s occupancy. (e) Nothing contained
hereinabove shall relieve Tenant from liability that may exist as a result of
damage from fire or other casually. Notwithstanding the foregoing,
including Owner’s obligation to restore under subparagraph (b) above, each party
shall look first to any insurance in its favor before making any claim against
the other party for recovery for loss or damage resulting from fire or other
casualty, and to the extent that such insurance is in force and collectible and
to the extent permitted by law, Owner and Tenant each hereby releases and waives
all right of recovery with respect to subparagraphs (b), (d) and (e) above,
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The release and waiver herein referred to
shall be deemed to include any loss or damage to the demised premises and/or to
any personal property, equipment, trade fixtures, goods and merchandise located
therein. The foregoing release and waiver shall be in force only if
both releasors’ insurance policies contain a clause providing that such a
release or waiver shall not invalidate the insurance. If, and to the
extent, that such waiver can be obtained only by the payment of additional
premiums, then the party benefitting from the waiver shall pay such premium
within ten days after written demand or shall be deemed to have agreed that the
party obtaining insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant
acknowledges that Owner will not carry insurance on Tenant’s furniture and or
furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant and agrees that Owner will not be obligated to repair any
damage thereto or replace the same, (f) Tenant hereby waives the provisions of
Section 227 of the Real Property law and agrees that the provisions of this
article shall govern and control in lieu thereof.
Eminent
Domain
10. If
the whole or any part of the demised premises shall be acquired or condemned by
Eminent Domain for any public or quasi public use or purpose, then and in that
event, the term of this lease shall cease and terminate from the date of title
vesting in such proceeding and Tenant shall have no claim for the value of any
unexpired term of said lease. Tenant shall have the right to make an
independent claim to the condemning authority for the value of Tenant’s moving
expenses and personal property, trade fixtures and equipment, provided Tenant is
entitled pursuant to the terms of the lease to remove such property, trade
fixtures and equipment at the end of the term and provided further such claim
does not reduce Owner’s award.
Assignment,
Mortgage,
Etc.;
11. Tenant,
for itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage or encumber this agreement, nor underlet, or suffer or permit
the demised premises or any part thereof to be used by others, without the prior
written consent of Owner in each instance. Transfer of the majority
of the stock of a corporate Tenant or the majority partnership interest of a
partnership Tenant shall be deemed an assignment. If this lease be
assigned, or if the demised premises or any part thereof be underlet or occupied
by anybody other than Tenant, Owner may, after default by Tenant, collect rent
from the assignee, under-tenant or occupant, and apply the net amount collected
to the rent herein reserved, but no such, assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under-tenant or occupant as tenant, or 8 release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting
shall not in any wise be construed to relieve Tenant from obtaining the express
consent in writing of Owner to any further assignment or
underletting.
Electric
Current:
12. Rates
and conditions in respect to submetering or rent inclusion, as the case may be,
to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation and Tenant
may not use any electrical equipment which, in Owner’s opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the building. The change at any time of the
character of electric service shall in no wise make Owner liable or responsible
to Tenant, for any loss, damages or expenses which Tenant may
sustain.
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Rider
to be added if
necessary.
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Access
to Premises:
13. Owner
or Owner’s agents shall have the right (but shall not be obligated)
to enter the demised premises in any emergency at any time, and, at other
reasonable times, to examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to any portion
of the building or which Owner may elect to perform in the premises after
Tenant’s failure to make repairs or perform any work which Tenant is obligated
to perform under this lease, or for the purpose of complying with laws,
regulations and other directions of governmental authorities. Tenant
shall permit Owner to use and maintain and replace pipes and conduits in and
through the demised premises and to erect new pipes and conduits therein
provided, wherever possible, they are within walls or otherwise
concealed. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without
the same constituting an eviction nor shall the Tenant be entitled to any
abatement of rent while such work is in progress nor to any damages
by reason of loss or interruption of business or
otherwise. Throughout the term hereof Owner shall have the right to
enter the demised premises at reasonable hours for the purpose of showing the
same to prospective purchasers or mortgagees of the building, and during the
last six months of the term for the purpose of showing the same to prospective
tenants and may, during said six months period, place upon the demised premises
the usual notices “To Let” and “For Sale” which notices. Tenant shall
permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised premises, Owner or Owner’s
agents may enter the same whenever such entry may be necessary or permissible by
master key or forcibly and provided reasonable care is exercised to safeguard
Tenant’s property, such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have
removed all or substantially all of Tenant’s property
therefrom. Owner may immediately enter, alter, renovate or redecorate
the demised premises without limitation or abatement of rent, or incurring
liability to Tenant for any compensation and such act shall have no effect on
this lease or Tenant’s obligation hereunder.
Vault,
Vault
Space, Area:
14. No
Vaults, vault space or area, whether or not enclosed or covered, not within the
property line of the building is leased hereunder anything contained in or
indicated on any sketch, blue print or plan, or anything contained elsewhere in
this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within
the property line of the building, which Tenant may be permitted to use and/ or
occupy, is to be used and/or occupied under a revocable license, and if any such
license be revoked, or if the amount of such space or area be diminished or
required by any federal, state or municipal authority or public utility, Owner
shall not be subject to any liability nor shall Tenant be entitled to any
compensation or diminution or abatement of rent, nor shall such revocation,
diminution or requisition be deemed constructive or actual
eviction. Any tax, fee or charge of municipal authorities for such
vault or area shall be paid by Tenant, if used by Tenant, whether or not
specifically leased hereunder.
Occupancy:
15. Tenant
will not at any time use or occupy the demised premises in violation of the
certificate of occupancy issued for the building of which the demised premises
are a part. Tenant has inspected the premises and accepts them as is,
subject to the riders annexed hereto with respect to Owner’s work, if
any. In any event, Owner makes no representation as to the condition
of the premises and Tenant agrees to accept the same subject to violations,
whether or not of record. If any governmental license or permit shall
be required for the proper and lawful conduct of Tenant’s business, Tenant shall
be responsible for and shall procure and maintain such license or
permit.
Bankruptcy:
16.
(a) Anything elsewhere in this lease to the contrary notwithstanding, this lease
may be cancelled by Owner by sending of a written notice to Tenant within a
reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the
laws of any state naming Tenant as the debtor; or (2) the making by Tenant of an
assignment or any other arrangement for the benefit of creditors under any state
statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance
with its terms, the provisions of this Article 16 shall be applicable only to
the party then owning Tenant’s interest in this lease.
(b) It is
stipulated and agreed that in the event of the termination of this lease
pursuant to (a) hereof, Owner shall forthwith, notwithstanding any other
provisions of this lease to the contrary, be entitled to recover from Tenant as
and for liquidated damages an amount equal to the difference between the rental
reserved hereunder for the unexpired portion of the term demised and the fair
and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such
premises or any part thereof be relet by the Owner for the unexpired term of
said lease, or any part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent reserved upon
such reletting shall be deemed to be the fair and reasonable rental value for
the part or the whole of the premises so re-let during the term of the
re-letting. Nothing herein contained shall limit or prejudice the
right of the Owner to prove for and obtain as liquidated damages by reason of
such termination, an amount equal to the maximum allowed by any statute or rule
of law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
Default:
17. (1)
If Tenant defaults in fulfilling any of the covenants of this lease; or if the
demised premises becomes vacant or deserted “or if this lease be rejected under
§235 of Title 11 of the U.S. Code (bankruptcy code); “ or if any execution or
attachment shall be issued against Tenant or any of Tenant’s property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; or
if Tenant shall make default with respect to any other lease between Owner and
Tenant; or if Tenant shall have failed, after five (5) days written notice, to
redeposit with Owner any portion of the security deposited hereunder which Owner
has applied to the payment of any rent and additional rent due and payable
hereunder or failed to move into or take possession of the premises within
thirty (30) days after the commencement of the term of this lease, of which fact
Owner shall be the sole judge; then in any one or more of such events, upon
Owner serving a written fifteen (15) days notice upon Tenant specifying the
nature of said default and upon the expiration of said fifteen (15) days, if
Tenant shall have failed to comply with or remedy such default, or if the said
default or omission complained of shall be of a nature that the same cannot be
completely cured or remedied within said fifteen (15) day period, and if Tenant
shall not have diligently commenced during such default within such fifteen (15)
day period, and shall not thereafter with reasonable diligence and in good
faith, proceed to remedy or cure such default, then Owner may serve a written
five (5) days’ notice of cancellation of this lease upon Tenant, and upon the
expiration of said five (5) days this lease and the term thereunder shall end
and expire as fully and completely as if the expiration of such five (5) day
period were the day herein definitely fixed for the end and expiration of this
lease and the term thereof and Tenant shall then quit and surrender the demised
premises to Owner but Tenant shall remain liable as hereinafter
provided.
(2) If
the notice provided for in (1) thereof shall have been given, and the term shall
expire as aforesaid; or if Tenant shall make default in the payment of the rent
reserved herein or any item of additional rent herein mentioned or any part of
either or in making any other payment herein required; then and in any of such
events Owner may without notice, re-enter the demised premises either by force
or otherwise, and dispossess Tenant by summary proceedings or otherwise, and the
legal representative of Tenant or other occupant of demised premises and remove
their effects and hold the premises as if this lease had not been made, and
Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end. If Tenant shall make default
hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease, Owner may cancel and terminate such renewal or
extension agreement by written notice.
Remedies
of Owner
and Waiver
of Redemption:
18. In
case of any such default, re-entry, expiration and/or dispossess by summary
proceedings or otherwise, (a) the rent, and additional rent, shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, (b) Owner may re-let the premises or any part or parts thereof,
either in the name of Owner or otherwise, for a term or terms, which may at
Owner’s option be less than or exceed the period which would otherwise have
constituted the balance of the term of this lease and may grant concessions or
free rent or charge a higher rental than that in this lease, (c) Tenant or the
legal representatives of Tenant shall also pay Owner as liquidated damages for
the failure of Tenant to observe and perform said Tenant’s covenants herein
contained, any deficiency between the rent hereby reserved and or covenanted to
be paid and the net amount, if any, of the rents collected on account of the
subsequent lease or leases of the demised premises for each month of the period
which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the premises or any part or
parts thereof shall not release or affect Tenant’s liability for
damages. In computing such liquidated damages there shall be added to
the said deficiency such expenses as Owner may incur in connection with
re-letting, such as legal expenses, reasonable attorneys’ fees, brokerage,
advertising and for keeping the demised premises in good order or for preparing
the same for re-letting. Any such liquidated damages shall be paid in
monthly installments by Tenant on the rent day specified in this lease and any
suit brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the
demised premises in good order or preparing the same for re-rental may, at
Owner’s option, make such alterations, repairs, replacements, and/or decorations
in the demised premises as Owner, in Owner’s sole judgment, considers advisable
and necessary for the purpose of re-letting the demised premises, and the making
of such alterations, repairs, replacements, and/or decorations shall not operate
or be construed to release Tenant from liability hereunder as
aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of
any of the covenants or provisions hereof, Owner shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant
hereby expressly waives any and all rights of redemption granted by or under any
present or future laws.
Fees
and Expenses:
19. If
Tenant shall default in the observance or performance of any term or covenant on
Tenant’s part to be observed or performed under or by virtue of any of the terms
or provisions in any article of this lease, after notice if required and upon
expiration of any applicable grace period if any, (except in an emergency),
then, unless otherwise provided elsewhere in this lease, Owner may immediately
or at any time (hereafter and without notice perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing or in
connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorney’s fees, in instituting,
prosecuting or defending any action or proceedings, and prevails in any such
action or proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant’s default shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Owner within ten (10) days of rendition
of any xxxx or statement to Tenant therefor. If Tenant’s lease term
shall have expired at the time of making of such expenditures or incurring of
such obligations, such sums shall be recoverable by Owner as
damages.
Building
Alternations
and
Management:
20. Owner
shall have the right at any time without the same constituting an eviction and
without incurring liability to Tenant therefor to change the arrangement and or
location of public entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or other public parts of the building and to change
the name, number or designation by which the building may be
known. There shall be no allowance to Tenant for diminution of rental
value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or other Tenant making any
repairs in the building or any such alterations, additions and
improvements. Furthermore, Tenant shall not have any claim against
Owner by reason of Owner’s imposition of any controls of the manner of access to
the building by Tenant’s social or business visitors as the Owner may deem
necessary for the security of the building and its occupants.
No
Representations by
Owner:
21. Neither
Owner nor Owner’s agents have made any representations or promises with respect
to the physical condition of the building, the land upon which it is erected or
the demised premises, the rents, leases, expenses of operation or any other
matter or thing affecting or related to the demised premises or the building
except as herein expressly set forth and no rights, easements or licenses are
acquired by Tenant by implication or otherwise except as expressly set forth in
the provisions of this lease. Tenant has inspected building and the
dernised premises and is thoroughly acquainted with their condition and agrees
to take the name “as is” on the date possession is tendered and acknowledges
that the taking of possession of the demised premises by Tenant shall be
conclusive evidence that the said premises and the building of which the same
form a part were in good and satisfactory condition at the time such possession
was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between Owner
and Tenant and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of it in whole or in part,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
End
of Term
22. Upon
the expiration or other termination of the term of this lease, Tenant shall quit
and surrender to Owner the demised premises, broom clean, in good order and
condition, ordinary wear and damages which Tenant is not required to repair as
provided elsewhere in this lease excepted, and Tenant shall remove all its
property from the demised premises. Tenant’s obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this Lease or any renewal
thereof, falls on Sunday, this lease shall expire at noon on the preceding
Saturday unless it be a legal holiday in which case it shall expire at noon on
the preceding business day.
Quiet
Enjoyment
23. Owner
covenants and agrees with Tenant that upon Tenant paying the rent and additional
rent and observing and performing all the terms, covenants and conditions, on
Tenant’s part to be observed and performed, Tenant may peaceably and quietly
enjoy the premises hereby demised, subject, nevertheless, to the terms and
conditions of this lease including, but not limited to, Article 34 hereof and to
the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure
to
Give Possession:
24. If
Owner is unable to give possession of the demised premises on the date of the
commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or if Owner has
not completed any work required to be performed by Owner, or for any other
reason, Owner shall not be subject to any liability for failure to give
possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this lease, but the rent payable hereunder shall be abated (provided
Tenant is not responsible for Owner’s inability to obtain possession or complete
any work required) until after Owner shall have given Tenant notice that Owner
is able to deliver possession in the condition required by this
lease. If permission is given to Tenant to enter into the possession
of the demised premises or to occupy premises other than the demised premises
prior to the date specified as the commencement of the term of this lease,
Tenant covenants and agrees that such possession and/ or occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions of this
lease, except the obligation to pay the fixed annual rent set forth in page one
of this lease. The provisions of this article arc intended to
constitute “an express provision to the contrary” within the meaning of Section
223-a of the New York Real Property Law.
No
Waiver:
25. The
failure of Owner to seek redress for violation of, or to insist upon the strict
performance of any covenant or condition of this lease or of any of the Rules or
Regulations, set forth or hereafter adopted by Owner, shall not prevent a
subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by
Owner of rent with knowledge of the breach of any covenant of this lease shall
not be deemed a Waiver of such breach and no provision of this lease shall be
deemed to have been waived by Owner unless such waiver be in writing signed by
Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner’s right to recover the balance of such rent or pursue any
other remedy in this lease provided. All checks tendered to Owner as
and for the rent of the demised premises shall be deemed payments for the
account of Tenant. Acceptance by Owner of rent from anyone other than
Tenant shall not be deemed to operate as an attornment to Owner by the payor of
such rent or as a consent by Owner to an assignment or subletting by Tenant of
the demised premises to such payor, or as a modification of the provisions of
this lease. No act or thing done by Owner or Owner’s agents during
the term hereby demised shall be deemed an acceptance of a surrender of said
premises and no agreement to accept such surrender shall be valid unless in
writing signed by Owner. No employee of Owner or Owner’s agent shall
have any power to accept the keys of said premises prior to the termination of
the lease and the delivery of keys to any such agent or employee shall not
operate as a termination of the lease or a surrender of the
premises.
Waiver
of Trial
by Jury:
26. It
is mutually agreed by and between Owner and Tenant that the respective parties
hereto shall and they hereby do waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other (except
for personal injury or property damage) on any matters whatsoever arising out of
or in any way connected with this lease, the relationship of Owner and Tenant,
Tenant’s use of or occupancy of said premises, and any emergency statutory or
any other statutory remedy. It is further mutually agreed that in the
event Owner commences any proceeding or action for possession including a
summary proceeding for possession of the premises, Tenant will not interpose any
counterclaim of whatever nature of description in any such proceeding including
a counterclaim under Article 4 except for statutory mandatory
counterclaims.
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Inability
to Perform
27. This
Lease and the obligation of Tenant to pay rent hereunder and perform all of the
other covenants and agreements hereunder on part of Tenant to be performed shall
in no wise be affected, impaired or excused because Owner is unable to fulfill
any of its obligations under this lease or to supply or is delayed in supplying
any service expressly or impliedly to be supplied or is unable to make, or is
delayed in making any repair, additions, alterations or decorations or is unable
to supply or is delayed in supplying any equipment, fixtures or other materials
if Owner is prevented or delayed from doing so by reason of strike or labor
troubles or any cause whatsoever beyond Owner’s sole control including, but not
limited to, government preemption or restrictions or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency or by reason of the conditions which have been or are affected, either
directly or indirectly, by war or other emergency.
Bills
and Notices
28. Except
as otherwise in this lease provided, a xxxx statement, notice or communication
which Owner may desire or be required to give to Tenant, shall be deemed
sufficiently given or rendered if, in writing, delivered to Tenant personally or
sent by registered or certified mail addressed to Tenant at the building of
which the demised premises form s part or at the last known residence address or
business address of Tenant or left at any of the aforesaid premises addressed to
Tenant, and the time of the rendition of such xxxx or statement and of the
giving of such notice or communication shall be deemed to be the time when the
same is delivered to Tenant, mailed, or left at the premises as herein
provided. Any notice by Tenant to Owner must be served by registered
or certified mail addressed to Owner at the address first hereinabove given or
at such other address as Owner shall designate by written notice.
Water
Charges
29. If
Tenant requires, uses or consumes water for any purpose in addition to ordinary
lavatory purposes (of which fact Tenant constitutes Owner to be the sole judge)
Owner may install a water meter and thereby measure Tenant’s water consumption
for all purposes. Tenant shall pay Owner for the cost of the meter
and the cost of the installation, thereof and throughout the duration of
Tenant’s occupancy Tenant shall keep said meter and installation equipment in
good working order and repair at Tenant’s own cost and expense in default of
which Owner may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant, as additional rent Tenant agrees to pay
for water consumed, as shown on said meter as and when bills axe rendered, and
on default in making such payment Owner may pay such charges and collect the
same from Tenant, as additional rent. Tenant covenants and agrees to
pay, as additional rent, the sewer rent, charge or any other tax, rent, levy or
charge which now or hereafter is assessed, imposed or a lien upon the demised
promises or the realty of which they axe part pursuant to law, order or
regulation made or issued in connection with the use, consumption, maintenance
or supply of water, water system or sewage or sewage connection or
system. If the building or the demised premises or any part thereof
is supplied with water through a meter through which water is also supplied to
other premises Tenant shall pay to Owner, as additional rent on the first day of each month, 15.5% of the total meter
charges Tenant’s portion Independent of and in addition to any of the remedies
reserved to Owner hereinabove or elsewhere in this lease, Owner may xxx for and
collect any monies to be paid by Tenant or paid by Owner for any of the reasons
or purposes hereinabove set forth.
on the first day of each month, 15.5% of the total meter
charges Tenant’s portion Independent of and in addition to any of the remedies
reserved to Owner hereinabove or elsewhere in this lease, Owner may xxx for and
collect any monies to be paid by Tenant or paid by Owner for any of the reasons
or purposes hereinabove set forth.Sprinklers:
30. Anything
elsewhere in this lease to the contrary notwithstanding, if the New York Board
of Fire Underwriters or the New York Fire Insurance Exchange or any bureau,
department official of the federal, state or city government recommend or
require the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant’s business,
or the location of partitions, trade fixtures, or other contents of the demised
premises, or for any other reason, or if any such sprinkler system
installations, modifications, alterations, additional sprinkler heads or other
such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate set by any said Exchange or by any fire insurance company, Tenant shall, at
Tenant’s expense, promptly make such sprinkler system installations, changes,
modifications, alterations, and supply additional sprinkler heads or other
equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay Owner as additional rent
the sum of (15.5%) on the first day of each month during the term of
this lease, as Tenant’s portion of the contract price for sprinkler supervisory
service.
(15.5%) on the first day of each month during the term of
this lease, as Tenant’s portion of the contract price for sprinkler supervisory
service.Elevators,
Heat,
Cleaning
31. As
long as Tenant is not in default under any the covenants of this lease beyond
the applicable grace period provided in this lease for the curing of such
defaults, Owner shall: (a) provide necessary passenger elevator
facilities on business days from 8 a.m. to 6 p.m. and on Saturdays from 3 a.m.
to 1 p.m.; (b) if freight elevator service is provided, same shall be provided
only on regular business days Monday through Friday inclusive, and on those days
only between the hours of 9 a.m. and 12 noon and between 1 p.m. and 5 p.m.; (c)
furnish heat, water and other services supplied by Owner to the demised
premises, when and as required by law, on business days from 8 a.m. to 6 p.m.
and on Saturdays from 8 a.m. to l p.m.; (d) clean the public halls and public
portions of the building which are used in common by all tenants. Tenant shall,
at Tenant’s expense, keep the demised premises, including the windows, clean and
in order, to the reasonable satisfaction of Owner, and for that purpose shall
employ the person or persons, or corporation approved by
Owner. Tenant shall pay to Owner the cost of removal of any of
Tenant’s refuse and rubbish from the building. Bills for the same
shall be rendered by Owner to Tenant at such time as Owner may elect and shall
be due and payable hereunder, and the amount of such bills shall be deemed to
be, and be paid as, additional rent. Tenant shall, however, have the
option of independently contracting for the removal of such rubbish and refuse
in the event that Tenant does not wish to have same done by employees of
Owner. Under such circumstances, however, the removal of such refuse
and rubbish by others shall be subject to such rules and regulations as, in the
judgment of Owner, are necessary for the proper operation of the
building. Owner reserves the right to stop service of the heating,
elevator, plumbing and electric systems, when necessary, by reason of accident,
or emergency, or for repairs, alterations, replacements or improvements, in the
judgment of Owner desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been
completed. If the building of which the dernised premises are a part
supplies manually operated elevator service, Owner may proceed diligently with
alterations necessary to substitute automatic control elevator service without
in any way affecting the obligations of Tenant hereunder.
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Security:
32. Tenant
has deposited with Owner the sum of $54,333.33 as security for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this lease; it is agreed that in the event Tenant defaults in respect of any of
the terms, provisions and conditions of this lease, including, but not limited
to, the payment of rent and additional rent, Owner may use, apply or retain the
whole or any part of the security so deposited to the extent required for the
payment of any rent and additional rent or any other sum as to which Tenant is
in default or for any sum which Owner may expend or may be required to expend by
reason of Tenant’s default in respect of any of the terms, covenants and
conditions of this lease, including but not limited to, any damages or
deficiency in the reletting of the premises, whether such damages or deficiency
accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
Lease and after delivery of entire possession of the demised premises to
Owner. In the event of a sale of the land and building or leasing of
the building, of which the demised premises form a part, Owner shall have the
right to transfer the security to the vendee or lessee and Owner shall thereupon
be released by Tenant from all liability for the return of such security; and
Tenant agrees to look to the new Owner solely for the return of such security,
and it is agreed that the provisions hereof shall apply to every transfer or
assignment made of the security to a new Owner. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Owner nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
Captions
33. The
Captions are inserted only as a matter of convenience and for reference and in
no way define, limit or describe the scope of this lease nor the intent of any
provision thereof.
Definitions:
34. The
term “Owner” as used in this lease means only the owner of the fee or of the
leasehold of the building, or the mortgagee in possession, for the time being of
the land and building (or the owner of a lease of the building or of the land
and building) of which the demised premises form a part, so that in the event of
any sale or sales of said land and building or of said lease, or in the event of
a lease of said building, or of the land and building, the said Owner shall be
and hereby is entirely freed and relieved of all covenants and obligations of
Owner hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser, at any such sale, or the said lessee of the building, or of the
land and building, that the purchaser or the lessee of the building has assumed
and agreed to carry out any and all covenants and obligations of Owner
hereunder. The words “re-enter” and “re-entry” as used in this lease
are not restricted to their technical legal meaning. The term “rent”
includes the annual rental rate whether so expressed or expressed in monthly
installments, and “additional rent” “Additional rent” means all sums which shall
be due to Owner from Tenant under this lease, in addition to the annual rental
rate. The term “business days” as used in this lease, shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by (be applicable Operating
Engineers contract with respect to HVAC service. Wherever it is
expressly provided in this lease that consent shall not be unreasonably
withheld, such consent shall not be unreasonably delayed.
Adjacent
Excavation-Shoring:
35. If
an excavation shall be made upon land adjacent to the demised premises, or shall
be aulhorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of
rent.
Rules
and Regulations:
36. Tenant
and Tenant’s servants, employees, agents, visitors, and licensees shall observe
faithfully, and comply strictly with, the Rules and Regulations annexed hereto
and such other and further reasonable Rules and Regulations as Owner or Owner’s
agents may from time to time adopt. Notice of any additional rules or
regulations shall be given in such manner as Owner may elect. In case
Tenant disputes the reasonableness of any additional Rule or Regulation
hereafter nude or adopted by Owner or Owner’s agents, the parties hereto agree
to submit the question of the reasonableness of such Rule or Regulation for
decision to the New York office of the American Arbitration Association, whose
determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional
Rule or Regulation upon Tenant’s part shall be deemed waived unless the same
shall be asserted by service of a notice, in writing upon Owner within fifteen
(15) days after the giving of notice thereof. Nothing in this lease
contained shall be construed to impose upon Owner any duty or obligation to
enforce the Rules and Regulations or terms, covenants or conditions in any other
lease, as against any other tenant and Owner shall not be liable to Tenant for
violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees.
Glass
37. Owner
shall replace, at the expense of the Tenant, any and all plate and other glass
damaged or broken from any cause whatsoever in and about the demised
premises. Owner may insure, and keep insured, at Tenant’s expense,
all plate and other glass in the demised premises for and in the name of
Owner. Bills for the premiums therefor shall be rendered by Owner to
Tenant at such times as Owner may elect, and shall be due from, and payable by,
Tenant when rendered, and the amount thereof shall be deemed to be, and be paid,
as additional rent.
Estoppel
Certificate:
38. Tenant,
at any time, and from time to time, upon at least 10 days’ prior notice by
Owner, shall execute, acknowledge and deliver to Owner, and/or to any other
person, firm or corporation specified by Owner, a statement certifying that this
Lease is unmodified in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), stating the dates to which the rent and additional rent have
been paid, and stating whether or not there exists any default by Owner under
this Lease, and, if so, specifying each such default.
Directory Board
Listing:
39. If,
at the request of and as accommodation to Tenant, Owner shall place upon the
directory board in the lobby of the building, one or more names of persons other
than Tenant, such directory board listing shall not be construed as the consent
by Owner to an assignment or subletting by Tenant to such person or
persons.
Successors and
Assigns
40. The
covenants, conditions and agreements contained in this lease shall bind and
inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrate», successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to
Owner’s estate and interest in the land and building for the satisfaction of
Tenant’s remedies for the collection of a judgement (or other judicial process)
against Owner in the event of any default by Owner hereunder, and no other
property or assets of such Owner (or any partner, member, officer or director
thereof, disclosed or undisclosed), shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant’s remedies under or with
respect to this lease, the relationship of Owner and Tenant hereunder, or
Tenant’s use and occupancy of the demised premises.
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See rider annexed hereto and made a
part hereof.
In
Witness Whereof, Owner and Tenant have respectively signed and sealed this lease
as of the day and year first above written.
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Witness
for Owner:
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URBAN DEVELOPMENT
PARTNERS (61), LLC
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Landlord
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By:
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By:
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/s/ Xxxxxx Xxxxxx
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Witness
for Tenant
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XXXXX XXXXXX
XXXX, LTD., Tenant
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By:
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/s/ Xxxxx Xxxxxx
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Name: XXXXX
XXXXXX
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Title: President.
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ACKNOWLEDGEMENTS
CORPORATE
TENANT
STATE
OF NEW YORK, ss.:
County
of
On this
___ day of __19 _____, before me personally came __________________ to me known,
who being by me duly sworn, did depose and say that he resides in
_______________________ that he is the ________________ of ______________
corporation described in and which executed the foregoing instrument, as TENANT;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that he signed his name thereto by like
order.
………………………………………………
INDIVIDUAL
TENANT
STATE
OF NEW YORK, ss.:
County
of
On this
____ day of ____,19______, before me personally came ___________________ to be
known and known to me to be the individual described in and who, as TENANT,
executed the foregoing instrument and acknowledged to me that ________ he
executed the same.
………………………………………………
IMPORTANT – PLEASE READ 
RULES
AND REGULATIONS ATTACHED TO AND
MADE
A PART OF THIS LEASE IN
ACCORDANCE
WITH ARTICLE 36.
1. The
sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than for ingress or egress from the demised
premises and for delivery of merchandise and equipment in a prompt and efficient
manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of
the building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of
the building, Tenant thereof shall further, at Tenant’s expense, keep the
sidewalk and curb in front of said premises clean and free from ice, snow, dirt
and rubbish.
2. The
water and wash closets and plumbing fixtures shall not be used for any purposes
other than those for which they were designed or constructed and no sweepings,
rubbish, rags, acids or other substances shall be deposited therein, and the
expense of any breakage, stoppage, or damage resulting from the violation of
this rule shall be borne by the Tenant who, or whose clerks, agents, employees
or visitors, shall have caused it.
3. No
carpet, rug or other article shall be hung or shaken out of any window of the
building; and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
of halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the buildings by reason of noise, odors, and or
vibrations, or interfere in any way, with other Tenants or those having business
therein, nor shall any bicycles, vehicles, animals, fish, or birds be kept in or
about the building. Smoking or carrying lighted cigars or cigarettes
in the elevators of the building is prohibited.
4. No
awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No
sign, advertisement, notice or other lettering shall be exhibited, inscribed,
painted or affixed by any Tenant on any part of the outside of the demised
premises or the building or on the inside of the demised premises if the same is
visible from the outside of the premises without the prior written consent of
Owner, except that the name of Tenant may appear on the entrance door of the
premises. In the event of the violation, of the foregoing by any
Tenant, Owner may remove same without any liability and may charge the expense
incurred by such removal to Tenant or Tenants violating this
rule. Interior signs on doors and directory tablet shall be
inscribed, painted or affixed for each Tenant by Owner at the expense of such
Tenant, and shall be of a size, color and style acceptable to
Owner.
6. No
Tenant shall xxxx, paint, drill into, or in any way deface any part of the
demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Owner, and as Owner may direct. No Tenant shall
lay linoleum, or other similar floor covering, so that the same shall come in
direct contact with the floor of the demised premises, 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, the use of cement or other similar adhesive material
being expressly prohibited.
7. No
additional locks or bolts of any kind shall be placed upon any of the doors or
windows by any Tenant, nor shall any changes be made in existing locks or
mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Owner the cost
thereof.
8. Freight,
furniture, business equipment, merchandise and bulky matter of any description
shall be delivered to and removed from the premises only on the freight
elevators and through the service entrances and corridors, and only during hours
and in a manner approved by Owner. Owner 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 of the
lease of which these Rules and Regulations are a part.
9. No
Tenant shall obtain for use upon the demised premises ice, drinking water, towel
and other similar services, or accept barbering or bootblacking services in the
demised premises, except from persons authorized by Owner, and at hours and
under regulations fixed by Owner. Canvassing, soliciting and peddling
in the building is prohibited and each Tenant shall cooperate to prevent the
same.
10. Owner
reserves the right to exclude from the building all persons who do not present a
pass to the building signed by Owner. Owner will furnish passes to
persons for whom any Tenant requests same in writing. Each Tenant
shall be responsible for all persons for whom he requests such pass and shall be
liable to Owner for all of such persons. Notwithstanding the
foregoing, Owner shall not be required to allow Tenant or any person to enter or
remain in the building, except on business days from 8:00 a.m. to 6:00 p,m. and
on Saturdays from 8:00 a.m. to 1:00 p.m. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
11. Owner
shall have the right to prohibit any advertising by any Tenant which in Owner’s
opinion, tends to impair the reputation of the building or its desirability as a
loft building, and upon written notice from Owner, Tenant shall refrain from or
discontinue such advertising.
12. Tenant
shall not bring or permit to be brought or kept in or on the demised premises,
any inflammable, combustible, or explosive, or hazardous fluid, material,
chemical or substance, or cause or permit any odor» of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
13. Tenant
shall not use the demised premises in a manner which disturbs or interferes with
other Tenants in the beneficial use of their premises
RIDER
TO LEASE DATED AS OF SEPTEMBER 28, 2004
BETWEEN
URBAN DEVELOPMENT PARTNERS (61), LLC, AS LANDLORD
AND
XXXXX XXXXXX XXXX, LTD., AS TENANT
41. (a)
Tenant shall pay to the Landlord base rent for the Demised Premises in
accordance with the provisions of the printed form of this Lease as
follows:
(i) For
the period commencing seven (7) days prior to the date that Landlord gives
Tenant written notice (“Commencement Date Notice”) in the manner required by
this Lease for notices at the address for Tenant stated on the first page of
this Lease that Landlord’s mortgagee has approved this Lease (“Commencement
Date”) through and including September 30, 2005 at an annual rental rate of
$326,000.00, payable in equal monthly installments of $27,166.67;
(ii) For
the period October 1, 2005 through and including September 30, 2006 at an annual
rental rate of $333,335.00, payable in equal monthly installments of
$27,777.92;
(iii) For
the period October 1, 2006 through and including September 30, 2007 at an annual
rental rate of $340,835.04, payable in equal monthly installments of
$28,402.92;
(iv) For
the period October 1, 2007 through and including September 30, 2008 at an annual
rental rate of $348,503.83, payable in equal monthly installments of
$29,041.99;
(v) For
the period October 1, 2008 through and including September 30, 2009 at an annual
rental rate of $356,345.16, payable in equal monthly installments of
$29,695.43;
(vi) For
the period October 1, 2009 through and including September 30, 2010 at an annual
rental rate of $364,362.93, payable in equal monthly installments of
$30,363.58;
(vii) For
the period October 1, 2010 through and including September 30, 2011 at an annual
rental rate of $372,561.10, payable in equal monthly installments of
$31,046.76;
(viii) For
the period October 1, 2011 through and including September 30, 2012 at an annual
rental rate of $380,943.72, payable in equal monthly installments of
$31,745.31;
(ix) For
the period October 1, 2012 through and including September 30, 2013 at an annual
rental rate of $389,514.95, payable in equal monthly installments of $32,459.58;
and
(x) For
the period October 1, 2013 through and including September 30, 2014 at an annual
rental rate of $398,279.04, payable in equal monthly installments of
$33,189.92.
(b) Notwithstanding
the recitation of the annual rental rate in Paragraph (a) above, provided
that Tenant shall not be in default of any material term, covenant or condition
of this Lease beyond applicable notice and cure period, then, and in such event
only, the full monthly installments of the base rent for November, 2004 and
December, 2004, and fifty (50%) percent of the base rent for October 2005,
October 2006, October 2007 and October 2008 shall be abated. However,
nothing herein shall modify Tenant’s obligation to pay the first month’s rent
upon execution of this agreement, which shall be applied to the first monthly
rent due.
(c) As
a special inducement to Landlord executing this Lease and in consideration for
Landlord’s reducing the base annual rent by one hundred and fifty thousand
($150,000.00) dollars, as an amortized reduction of $15,000.000 each year over
the ten-year term of the Lease, in the base rent from an initial base annual
rent of $341,000.00 as Landlord’s Contribution to Tenant’s initial installation
work, Tenant agrees to make not less than one hundred and fifty thousand
($150,000.00) dollars in initial improvements to prepare the Demised Premises
for its own use and operation (“Tenant’s Initial Improvements”). All work shall
be performed at Tenant’s sole cost and expense and subject to the provisions of
Articles 3, 38 and 49 of this Lease. Upon completion of Tenant’s
Initial Improvements, Tenant shall deliver to Landlord lien waivers for all work
performed, a paid signed itemized xxxx for all of Tenant’s Initial Improvements
invoiced to Landlord, and all proof required by the appropriate governmental
agencies that all plumbing, electrical, sprinkler and other work performed by
Tenant for Tenant’s Initial Improvements was completed in a lawful
manner. The foregoing shall constitute a substantial obligation of
this tenancy. It is understood that the Landlord’s current mortgagee
will reimburse Landlord for the cost of the Tenant’s Initial Improvements in the
same amount.
(d) As
a further and special inducement to Landlord that its occupancy in the Building
will add to the prestige and value of the Building as the “Interior Design
Building” Tenant has represented that after Tenant has substantially completed
Tenant’s Initial Improvements for the next twelve months Tenant will advertise
its business at the Demised Premises for a total cost of not less than three
hundred thousand ($300,000.00) dollars over the first three years of the Lease
after the Commencement Date. For the twelve months after the
Commencement Date all such advertising and website promotion of its business
must include the Tenant’s name and designating Tenant’s location with the name
and logo of the Building as the “Interior Design Building” with the address of
the Building at 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, X.X. After the twelve months after the Commencement Date shall have
expired, the Tenant must include in its internet website Tenant’s location with
the name and logo of the Building as the “Interior Design Building” with the
address of the Building at 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx.
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(e) Landlord
agrees to make a good faith effort to have its mortgagee approve this Lease
within ten (10) days after the execution of this Lease by both parties and
delivery of this Lease to Landlord’s mortgagee. If the Landlord’s
mortgagee has not approved the Lease and the Landlord has not sent the
Commencement Date Notice within said ten day period, then either party shall
have the right to cancel this Lease on written notice to the other party, and
all monies delivered to Landlord on account of this Lease for rent and security
shall be returned to Tenant. If this Lease is approved and the
Commencement Date Notice has been sent, then first month’s rent due to Landlord
shall be adjusted pro rata as of the Commencement Date and any monies received
by the Landlord shall be applied to the first month’s rent due with any credit
due to Tenant applied to the next month of rent due.
42. (a)
Tenant’s operation of the Demised Premises shall be for its own account and
liability and Landlord shall in no way be liable for or in any other manner
responsible therefore. Tenant shall indemnify and save harmless
Landlord from and against any claim, penalty, loss, damage or expense, including
reasonable attorney’s fees, connected with or arising out of Tenant’s use or
occupancy of the Demised Premises, including but not limited to loss or damage
by theft, fire and any other hazards, normally covered by comprehensive
insurance, and from any damage or injury to persons or property, due to the acts
or omissions of Tenant, its agents, servants, employees or
invitees.
(b) Without
limiting the indemnities herein contained, Tenant shall, during the term of this
Lease and at all times that Tenant is in possession of the Demised Premises, at
its sole cost and expense, maintain comprehensive general liability insurance
with respect to the Demised Premises and its use and occupancy thereof as herein
provided with an insurance company or companies satisfactory to Landlord
providing coverage in limits of no less than $2,000,000 for bodily injury, and
no less than $1,000,000 for property damage. Tenant shall also
maintain all further insurance coverage in such limits as are customarily
maintained by comparable operations. Tenant shall keep all such
insurance naming Landlord, Landlord’s managing agent, any superior lessor, any
mortgagees designated by Landlord and Tenant, as insureds. Said
insurance shall provide that the insurer will give Landlord ten (10) days’
notice in advance of any cancellation or reduction of coverage and that copies
of all endorsements issued after the date of each policy will be forwarded to
Landlord. Tenant shall deliver to Landlord, prior to the commencement
of the Lease term and upon request while this paragraph 42 (b) applies a
certificate of endorsement of the aforesaid policies. If at any time,
Tenant shall neglect or fail to provide and keep in force such coverage as
required hereunder, Landlord may, but is not obligated to, obtain such insurance
as the agent of Tenant, the premiums therefore to be deemed Additional Rent
hereunder, and the Tenant shall, upon demand, reimburse Landlord therefore, as
Additional Rent. Tenant’s failure to maintain the aforesaid policies
shall be a material default hereunder.
(c) Tenant
shall also obtain, as its own cost and expense, naming both Landlord, Landlord’s
managing agent, any superior lessor, any mortgagees designated by Landlord, and
Tenant as named insured, fire insurance for all personal property which may be
affixed to the realty now located in the leased premises and including any
future installations.
(d) Notwithstanding
anything herein to the contrary, nothing herein shall prevent Landlord from
recovering in the event of fire or other loss under Landlord’s fire or other
insurance coverage for all betterments and improvements by Tenant so affixed to
the Demised Premises that are considered part of the realty under
law.
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(e) Tenant
hereby releases Landlord, Landlord’s partners and principals, disclosed or
undisclosed, and its agents and their respective employees in respect of any
claim (including a claim for negligence) which it might otherwise have against
Landlord, Landlord’s partners, and principals, disclosed or undisclosed, and its
agents and their respective employees, for loss, damage or destruction with
respect to Tenant’s property by fire or other casualty (including rental value
or business interest as the case may be) occurring during the term of this Lease
and covered under a fire insurance policy with extended coverage endorsement in
the form normally used in respect of similar property in New York
County.
43. Neither
Landlord nor Tenant shall be liable to the other party or to any insurance
company (by way of subrogation or otherwise) for any (1) loss or damage to any
building, structure, or other tangible property; (ii) liability for personal
injury; or (iii) losses under worker’s compensation laws and benefits, even
though such loss, damage, or liability might be caused by the negligence of such
party, its agents, contractors, invitees, or employees. Both Landlord
and Tenant shall endeavor to obtain a waiver of subrogation from their insurance
company.
44. (a)
Landlord will not furnish any electricity or gas for Tenant at the Demised
Premises and Tenant shall pay for all electricity or gas consumed, as billed by
the public utility or, if a meter is shared with an adjacent Tenant, shall pay
applicable and agreed upon apportioned charges to the Tenant as
billed. Landlord will furnish heat to the Demised Premises at the
same time Landlord furnishes heat to the building of which the Demised Premises
form a part. Landlord shall deliver the Demised Premises to Tenant
upon the Commencement Date with air-cooling equipment in good working order, and
the air-cooling equipment shall be sufficient to reasonably cool the Demised
Premises and to keep the Demised Premises at a temperature in accordance with
applicable law. Tenant shall maintain, and make all necessary repairs
to, the air-cooling equipment throughout the term of this
Lease. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall, at Tenant’s sole cost and expense, maintain, and promptly
make repairs to all components of the electrical system from and including
meters to and within the Demised Premises. Tenant shall not be
released or executed from the performance of any of its obligations under this
Lease for any failure or for interruption or curtailment of electrical or gas
service, for any reason whatsoever, and no such failure, interruption or
curtailment shall constitute a constructive or partial eviction.
(b) Landlord
shall furnish manually operated freight elevator facilities on weekdays on
Monday through Friday from 9:00 a.m. to 6:30 p.m., and the automatic freight
elevator commencing at 8:00 a.m. to 6:30 p.m. Monday through Friday, except on
legal holidays, and self-service passenger elevator facilities at all
times. Tenant acknowledges that it shall not be open for business to
customers other than Monday through Friday from 9:00 a.m. to 6:30 p.m. If Tenant
shall desire to have access to the Demised Premises in order to be open for
business to customers at any time other than as specified above (“After Hours
Use”), Tenant shall give Landlord written notice of said intention to Landlord
specifying the time and dates it desires to be open. Landlord will
endeavor to cooperate with Tenant to have the Building open for such After Hours
Use by Tenant provided that Tenant pays to Landlord in advance any and all costs
for such After Hours Use, including but not limited to Landlord’s estimated cost
for heat, electricity, water and the cost of Landlord’s employees or other
security personnel. Landlord’s estimated cost for such services shall
be final, binding and conclusive on Tenant. After Hours Use expenses
shall be prorated among all tenants in the building who are open during such
After Hours Use.
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(c) Landlord
at its expense shall remove Tenant’s ordinary waste generated solely by office
functions for the Demised Premises so long as it is properly bagged and
deposited at the first floor lobby adjoining the elevator at such regular times
as Landlord shall from time to time establish.
45. All
signs and lettering except those wholly within and not visible from outside the
Demised Premises will be of a type and manner approved by Landlord to conform
with the nature and character of the building.
46. Tenant
agrees (a) the business to be conducted at, through and from the Demised
Premises, the kind and quality of merchandise and services offered in the
conduct of such business, the sales methods in such business, as well as other
elements of merchandising, display and advertising and the appearance of the
Demised Premises and the furniture, fixtures, and decoration therein, and of any
signs, lettering, announcements, price schedules, tags or any other kind of
forms of inscriptions displayed in or about Demised Premises, will be dignified
and in conformity with the highest standards of practice at the time in question
among first-class establishments dealing in the same or similar merchandise, and
(b) not affix any signs on windows or doors of the premises with
tape.
47. Tenant
shall use and occupy the Demised Premises only for the purposes stated in
Article 2 of the Lease and for no other purposes. Without limiting
the generality of the foregoing, it is an express condition of this Lease and
Tenant expressly warrants and agrees that at no time and in no event may the
Demised Premises, or any part thereof, be used for residential
purposes.
48. Tenant
may make alterations, additions or improvements in or to the Demised Premises
with the written consent of the Landlord, which consent shall not be
unreasonably withheld or delayed. All such work, at any time
undertaken by Tenant, shall be in compliance with all rules, orders, regulations
or requirements of governmental authorities, having jurisdiction there over and
in a good and workmanlike manner. Workers’ compensation insurance
covering all persons employed by Tenant in this connection and general liability
insurance, in such limits as may be reasonably requested by Landlord from time
to time, shall be maintained by Tenant at Tenant’s sole cost and expense at all
times while such work is in progress and Landlord shall be named as an
additional insured thereunder. Except for plumbing, sprinkler or
electrical work, the prior written consent of Landlord shall not be required for
nonstructural alterations that do not require a permit approval from the
appropriate governmental agencies.
49. (a)
Any alterations, additions, or improvements, in whole or in part, undertaken by
Tenant shall, at the expiration of the term of this Lease (or any extension or
renewal thereof), remain in and be a part of the Demised Premises unless
Landlord, no later than twenty (20) days prior to such expiration date, shall
require (by written notice to Tenant) Tenant to remove same, in which event
Tenant, at its expense, shall remove and repair any damage caused by such
renewal.
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(b) Notwithstanding
anything herein set forth to the contrary, if Tenant requests Landlord’s consent
or approval to alterations, additions, or improvements and if, in connection
with such request, Landlord seeks the advice of any attorneys, architects and/or
engineers and other appropriate consultants, then Landlord, as a condition
precedent to granting its consent or approval, may require that Tenant pay the
reasonable fees of Landlord’s attorneys, architects and/or engineers in
connection with the consideration of such request and/or the preparation of any
documents pertaining thereto.
50. Landlord
shall have the right at any time, without the same constituting an actual or
constructive eviction, and without incurring any liability to Tenant, to change
the arrangement and/or location of entrances of passageways, corridors,
elevators, stairs, toilets, or other public parts of the building, and to change
the name or number by which the building is known so long as such change does
not reduce the size of the Demised Premises.
51. Tenant
has examined the Demised Premises and agrees to take possession of same in its
“as is” condition. Except as may be expressly provided herein to the
contrary, Landlord shall have no obligation to furnish, render, or supply any
work, labor, services, materials, fixtures, furniture, equipment or decoration
to make the Demised Premises ready or suitable for Tenant’s
occupancy.
52. (a) Tenant
shall not sublease all or any portion of the Demised Premises or assign its
interest in this Agreement without Landlord’s prior consent, such consent not to
be unreasonably withheld, delayed or conditioned. Upon Tenant’s
request for Landlord’s consent, Tenant shall submit to Landlord, in writing, a
counterpart of the proposed assignment or sublease, as the case may be, and the
name of the proposed assignee or subtenant, the name and character of its
business, the terms of the proposed assignment or sublease and such information
as to the proposed assignee’s or subtenant’s financial responsibility and
standing and any other information Landlord may reasonably request, including,
without limitation, prior 2 years’ tax returns, prior 2 years’ financial
statements, a bank reference, and a copy of the previous month’s bank statement,
and a credit report from a reputable credit reporting agency.
(b) Provided
Tenant is not in default of any portion of this Lease, then Landlord’s consent
to such request shall not be unreasonably withheld or delayed,
provided:
(i) The
proposed assignee or subtenant shall use the Demised Premises, or the relevant
part thereof, solely for the permitted use under Article 2, above, and such
use
(aa) is
in keeping with the then standard of the building; and
(bb) will
not violate any negative covenant concerning “use” contained in any other Lease
in the building; however, such “use” restrictions are to be construed solely
against the Tenant and shall not affect the Landlord’s right to demise the
premises, or any relevant part thereof, for such purposes as are permitted by
law,
(ii) The
proposed assignee or subtenant is a reputable person of good character, with
sufficient proven financial worth to meet the continuing obligation of this
Lease; and
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(iii) The
proposed assignee or subtenant is not a person with whom the Landlord is then
negotiating a Lease for space in the building; and
(iv) The
form and substance of the proposed sublease or assignment shall be in the form
reasonably satisfactory to Landlord and shall comply with the applicable
provisions of this paragraph; and
(v) Tenant
shall reimburse Landlord for any reasonable costs incurred by Landlord in
connection with such assignment or subletting, including, without limitation,
any credit check or other investigation performed by Landlord, as to the
acceptability of the proposed assignee or subtenant, and any legal fees incurred
in connection therewith, which costs shall be deemed Additional Rent hereunder;
and
(vi) if
the Tenant desires that its current guarantor be released from the guarantor,
Tenant must submit the name, address and social security number of a new
guarantor to substitute for the current guarantor that meets the requirements of
(vii), below.
(vii) Tenant
must demonstrate to Landlord’s reasonable satisfaction that after consummation
of the proposed assignment the proposed assignee and the substitute guarantor
will have a combined net worth of five million ($5,000,000.00) dollars,
exclusive of a) the value of a residence or furnishings in a residence, b) the
value of any automobiles, c) the value of the business, assets or equity
interest being assigned to the assignee as part of the assignment transaction,
and d) with respect to the substitute guarantor the value of the substitute
guarantor’s interest in the assignee.
(d) In
no event shall any assignment or subletting to which Landlord may have or may
not have consented, release Tenant from its obligations under this
Lease. The Tenant’s right to sublet under this paragraph is personal
solely to the within named Tenant and confers no such right on any sublessee of
the named Tenant.
(e) If
the Landlord shall consent to any proposed assignment or sublease, or shall
decline to give its consent to any proposed assignment or sublease, Tenant shall
indemnify, defend and hold harmless Landlord against and from any and all loss,
liability, damages, costs and expenses (including, without limitation,
reasonable attorney’s fees and expenses) resulting from any claims that may be
made against Landlord by the proposed assignee or subtenant or by any brokers or
other persons claiming a commission or similar compensation in connection with
the proposed assignment or sublease.
(f) In
the event that Landlord consents to a proposed assignment or sublease, and
Tenant fails to execute and deliver to the Landlord either 1) the assignment and
a substitute guaranty signed by the substitute guarantor on the same form that
the current guarantor has executed, or 2) sublease, as the case may be, to which
Landlord has consented, within ninety (90) days after the giving of such
consent, then Tenant shall again comply with all of the provisions and
conditions of subparagraph (a) of this paragraph before assigning this Lease or
subletting all or part of the Demised Premises. In no event shall any
sublessee or assignee take possession of the Demised Premises until Landlord’s
approval has been granted and a fully executed
original sublease or assignment and substitute guaranty approved by Landlord,
has been delivered to Landlord. With respect to the assignment and
substitute guaranty only, upon Landlord’s acceptance of the substitute guaranty,
the original guaranty shall be null and void.
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(g)
If event of an assignment of the Lease or sublease of the space,
Tenant shall not receive any consideration for the assignment, whether as a
direct payment, brokerage fee, finder’s fee or for fixtures, improvements or
other consideration in any way related to the assignment or assignment
transaction or sublease or sublease transaction either directly or indirectly
without notifying Landlord at the time of giving Landlord notice of the intended
assignment or sublease. The failure to give Landlord notice of such
consideration shall constitute a substantial default under this
Lease. With respect to the foregoing in the event of an assignment of
the Lease in connection with the sale of all or a part of Tenant’s business and
assets to the assignee, Landlord shall be entitled to the sum of one hundred
thousand ($100,000.00) dollars from the assignee (“Assignment Consideration”),
as additional rent, which shall be payable to Landlord on the first date that
the assignment shall take effect. In the case of a sublet only one
half of any consideration received by Tenant from any subtenant in excess of the
rent and additional rent payable by Tenant (“Excess Rent”) shall be paid to
Landlord on demand. The Excess Rent shall be calculated as
follows:
(i) Definitions:
a) Tenant’s Annual Rent
- all rent and additional rent payable by Tenant for the twelve months next
succeeding in which any consideration is to be paid by Subtenant to
Tenant. For any amounts of additional rent that as of the date of the
calculation are unknown, then current additional rental payments are to be used
on an annualized basis and adjustments to those amounts shall be made when the
amounts are known retroactively to the date of the first
calculation.
b) Subtenant’s Rent -
any and all rent, additional rent and other consideration received or to be
received by Tenant its affiliates, subsidiaries, officers, directors or
shareholders, directly or indirectly related to the Sublease from the Subtenant
during any Lease Year.
c) Area - actual
carpetable floor area.
d) Tenant’s Costs In
Subletting - Any and all costs and expenses incurred by Tenant for
brokerage commissions, advertising, reasonable legal fees, costs and expenses
paid to Landlord hereunder, and unreimbursed construction costs incurred by
Tenant to construct the subtenant’s premises during the Lease Year the cost or
expense was incurred.
e) Subtenant’s Area
Percentage - Area occupied by the Subtenant including any demising walls
or partitions divided by the Area of the entire Demised Premises.
(ii) Excess Rent - The
Excess Rent shall be calculated by subtracting the product of the Subtenant’s
Area Percentage and the Tenant’s Annual Rent from the difference of Subtenant’s
Rent and the Tenant’s Cost in Subletting.
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(iii) Tenant
shall furnish Landlord with copies of all statements of any consideration
received by Tenant on demand by Landlord. Any reasonable costs and
expenses incurred by Landlord, including but not limited to reasonable
attorney’s fees, in compelling disclosure of any information of consideration in
excess of that disclosed by Tenant after due demand herein, shall be collectible
as additional rent from Tenant.
(h) If
in connection with the sale of Tenant’s business, whether accomplished through a
sale of Tenant’s assets or sale of more than 50% of stock, partnership interest
or membership interest of Tenant, Tenant uses this Lease as collateral for a
conditional sale or security interest that it may have or retain either through
a re-assignment of the Lease, assignment in escrow with the delivery of a
sublease to the purchaser or otherwise (“Hypothecation”), then notwithstanding
any provisions to the contrary herein, the existing guarantor shall not be
released from the guarantor until such time as 1) the Tenant sends notice to the
Landlord that the Tenant or any designee permitted by Landlord has no further
claim to possession of the demised premises or the Lease and the assignment has
been delivered to the assignee, and 2) all rent and additional rent due to
Landlord is fully paid as of the date such notice is sent to
Landlord. If in connection with the sale of Tenant’s business,
whether accomplished through a sale of Tenant’s assets or sale of more than 50%
of stock, partnership interest or membership interest of Tenant, Tenant or any
designee of Tenant permitted by Landlord, the Hypothecation shall be deemed a
full assignment of the Lease entitling the Landlord to receive the Assignment
Consideration on the date the Hypothecation transaction is executed by the
Tenant and assignee/purchaser of Tenant’s business. If the due to a
default by the assignee/purchaser in the Hypothecation transaction, the Tenant
or any designee permitted by Landlord returns to possession of the demised
premises Tenant or any designee permitted by Landlord shall give Landlord
written notice of that fact, and if all rent due to Landlord has been paid in
full and the Lease is not otherwise in material default, Landlord shall not be
entitled any Assignment Consideration or other amounts as provided in
subparagraph (g), above.
53. An
assignment of more than 50% of stock, partnership interest or membership
interest of Tenant shall be deemed an assignment of the
Lease. Notwithstanding such prohibition, the ownership of any
membership, stock, partnership or other equity interest in Tenant may be
assigned or otherwise transferred to the children, step-children, spouse, or
siblings (or to any trust or family partnership for the benefit of such persons)
so long as said assignees are reputable and financially
responsible.
54. If,
at the request of and as an accommodation to Tenant, Landlord shall place upon
such directory board, as Landlord may from time to time maintain in the lobby of
the building, one or more names of persons, firms or corporations other than
Tenant, this shall not be deemed to operate as an attornment to Landlord or as a
consent by Landlord to an assignment or subletting by Tenant of all or any
portion of the Demised Premises to such persons, firms or
corporations.
55. (a)
In the event that the amount of Real Estate Taxes attributable to any fiscal
year commencing July 1 and expiring the subsequent June 30 shall be greater than
the amount of taxes on the real property for the fiscal year commencing July 1,
2004 and expiring June 30, 2005 (hereinafter referred to as the “Base Year”),
then the Tenant shall pay to the Landlord, as Additional Rent, fifteen (15%)
percent of the increase in Real Estate Taxes for each such year.
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(b) The
Landlord shall take the benefit of the provisions of any statute or ordinance
permitting any Real Estate Taxes to be paid over a period of time, and the
Tenant shall be obliged to pay only its proportionate share, determined as
aforesaid, of the installments of any Real Estate Taxes as shall become due and
payable during the term of this Lease or any renewal hereof.
(c) Any
amount due the Landlord under the provisions of this paragraph shall be deemed
to be Additional Rent payable by Tenant and collectible by the Landlord as such
and shall be paid within ten (10) days after the Landlord shall have submitted a
xxxx to the Tenant showing in detail the computation of the amounts due the
Landlord. Such xxxx shall be submitted prior to the payment by the
Landlord of each installment of real estate taxes imposed on the real
property. Any delay or failure of Landlord in billing any amount
payable under this paragraph shall not constitute a waiver or in any way impair
the continuing obligation of Tenant to make all payments hereunder.
(d) Only
Landlord shall be eligible to institute Real Estate Taxes reduction or other
proceedings to reduce the assessed valuation of the Land or the
Building. If the Landlord shall receive any Real Estate Taxes refund
in respect of any tax year following the Base Year, the Landlord may retain out
of such Real Estate Taxes refund any reasonable expense incurred by it in
obtaining such Real Estate Taxes refund. Out of the remaining balance
of such Real Estate Taxes refund, the Landlord may retain the amount of its
proportionate share of the total Real Estate Taxes paid for such tax
year. The Landlord shall pay to the Tenant, or apply against Base
Annual Rent or Additional Rent due Landlord hereunder, its proportionate share
of such remaining balance of such Real Estate Taxes refund, such share to be
determined as the proportionate share of total Real Estate Taxes paid (before
giving effect to the refund) by the Tenant for the year affected by such tax
refund. Any reasonable and proper expense incurred by the Landlord in
contesting the validity or the amount of the assessed valuation, which shall not
be offset by a Real Estate Taxes refund, shall be added to the Real Estate Taxes
due Landlord for the tax year in which such contest shall finally be
determined.
(e) The
term “Real Estate Taxes” shall mean all taxes and assessments levied, assessed
or imposed at any time by the City of New York or any other governmental
authority which may now or hereafter be levied or assessed upon the land and
building of which the Demised Premises form a part (Block 1435, Xxx 00 xx xxx
Xxxxxxx xx Xxxxxxxxx), (hereinafter called the “Real Property”), 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 land
and/or building to the extent that same shall be in lieu of all or a portion of
any of the aforesaid taxes or assessments upon or against said land and/or
building. If, due to a future change in the method of taxation or in
the taxing authority, a franchise, license, income, transit, profit or other
tax, fee or governmental imposition, however designated, shall be levied,
assessed or imposed against Landlord in substitution, in whole or in part, for
said real estate taxes, or in lieu of additional real estate taxes, then such
franchise, license, income, transit, profit, or other tax fee, or governmental
imposition shall be deemed to be included within the definition of “real estate
taxes” for the purposes hereof.
(f) In
no event shall any rent adjustment hereunder result in a decrease in the Base
Annual Rent.
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(g) In
the event that the assessed valuation
which had been utilized in computing the Real Estate Taxes payable for the Base
Year is reduced (as a result of settlement, final determination of legal
proceedings or otherwise) then (i) the Real Estate Taxes for the Base Year shall
be retroactively adjusted to reflect such reduction, (ii) the monthly
installments of Additional Rent shall be increased accordingly, and (iii) all
retroactive Additional Rent resulting from such adjustment shall be payable by
Tenant within ten (10) days after the rendition of a xxxx therefor.
56. Subject
to Landlord’s prior written approval, which shall not be unreasonably withheld,
conditioned or delayed, Tenant shall be permitted to install one photograph or
other identifying sign in the lobby and one plaque on the outside of the
Building in the same location as the prior 7th floor
tenant of the Building had installed their photograph or other identifying sign
or plaque. If all of the other tenants in the Building consent in
writing to Tenant having more than one plaque or photograph then Tenant may
install one or more plaque or photograph.
57. In
the event that the cost to Landlord for fuel oil and/or gas for heating and/or
hot water in the Building during any heating year during the Term of this Lease
shall exceed the cost incurred by Landlord for the fuel oil and/or gas for
heating and/or hot water in the Building during the base heating year, then
Tenant shall pay to Landlord, as additional rent, fifteen and a half (15.5%)
percent of each and every such increase. Landlord shall provide to
Tenant following the end of each heating year during the Term of this Lease
(including the base heating year), copies of all bills and other reasonable
evidence setting forth Landlord’s costs for fuel oil and/or gas for heating
and/or hot water during such year and the base heating year, together with
Landlord’s statement of the amount due from Tenant, and Tenant shall, within
twenty (20) days after the sending of such statement, pay to Landlord such
amount. A “heating year” shall be defined as the period from July 1
to June 30 of the next succeeding calendar year. The “base Heating
year shall be defined as July, 1, 2004 to June 30, 2005.
58. (a)
Definitions:
(1) Building
- shall be defined as all those certain lands and the buildings erected thereon
presently designated on the Tax Map of County of New York, as Block 1435, Lot 44
which lands and the buildings erected thereon are commonly known as and by the
street address 000 xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx (including the Demised Premises and Building).
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(2) Operating
Expenses - shall be defined as all costs incurred by or on behalf of (including,
without limitation, any taxes thereon) in managing (Management expense shall be
five (4%) percent of the gross rentals in the Building), equipping, cleaning,
replacing, refurbishing, repairing, maintaining, servicing and operating the
Building, including, without limitation, the building and improvements
constituting the Building, the common areas, the sidewalks and other areas
adjacent to Building and the facilities, systems, equipment, machinery and other
property relating thereto. Operating Expenses shall not included Real
Estate Taxes, capital improvements and fuel. Without limiting the
foregoing definition of operating costs, operating costs shall include the cost
of (i) salaries, wages and other compensation paid to personnel engaged in the
management, operation, security, cleaning, servicing and maintenance of
Building, including health and life insurance, pension and similar general
welfare benefits, payroll, social security and unemployment taxes, disability
and workmen’s compensation coverage and similar union or other requirements;
(ii) fire and casualty, rent, liability, fidelity, plate glass and other
insurance, in such type, kind and amounts and with such carriers as Landlord may
elect; (iii) safety, sanitary, security and traffic controls; (iv) sales, uses
and personal property taxes; (v) snow, ice and refuse removal; (vi) uniforms,
work clothes and dry cleaning; (vii) building, office and cleaning supplies,
tools, materials, machines and equipment; (viii) electricity not consumed by
tenants in their spaces, at the rates charged by the utility company providing
electrical energy to Building for such electricity, as estimated by Landlord’s
utility consultant, (ix) compliance with all present and future laws,
ordinances, rules, regulations, requirements and codes of any governmental
authority having jurisdiction, the New York Board of Fire Underwriters or any
similar body and landlord’s insurance carriers; (x) performing any repairs or
alterations for which any Tenant is not obligated to perform and similar
obligations with respect to other unit operators; (xi) operating, maintaining,
servicing, repairing and replacing heating, air conditioning, ventilating,
vertical transportation (including elevators and escalators), lavatory, utility,
mechanical, lighting, security, cleaning, safety and other building systems,
machines, equipment and facilities; (xii) interest with respect to any operating
cost; (xiii) decorating, refurbishing and remodeling feature and common areas;
(xiv) special transportation vehicles, equipment and services to bring customers
to Building; (xvii) advertising and promotion; (xvi) on and off-premises freight
handling and distribution systems and (xix) legal, accounting, consulting and
other professional fees and disbursements. Landlord may cause any or
all services or other work comprising operating costs, including the management
of Building, to be provided by parties other than Landlord and operating costs
shall include the fees and other charges incurred by or on behalf of Landlord to
such parties for such services or work.
(3) Tenant’s
Share - shall be fifteen and a half (15.5%) percent.
(4) Base
Year - shall be defined as the twelve month Fiscal Year of July 1, 2004 through
and including June 30, 2005.
(5) Comparative
Year - shall be defined as each twelve month Fiscal Year July 1 to June 30
subsequent to the Base Year.
(b) If
the Operating Expenses for the Comparative Year shall exceed the Operating
Expenses for the Base Year, Tenant shall pay as additional rent to Landlord
Tenant’s Share of such excess. After each calendar year Landlord
shall submit to Tenant a statement of Operating Expenses for the Base Year and
for the Comparative Year, showing in reasonable detail a computation of the
additional rent, if any, due to Landlord pursuant to the provisions of this
Article. Should there be additional moneys due Landlord, Tenant shall
pay same within ten (10) days after having been furnished with Landlord’s
statement, and if it shall dispute the statement it shall send Landlord a Notice
particularly stating the items in dispute and the reasons
therefor. Any such payment for a calendar year falling part within
the year in which the Term of this lease shall end shall be apportioned so that
Tenant shall pay such share of only that portion thereof which corresponds with
said calendar year which is within the Term of this lease.
(c) The
failure or delay by Landlord in sending to Tenant a Statement of Operating
Expenses shall not be deemed a waiver or release to Tenant from paying any
amounts collectible as additional rent hereunder. In the event of any
failure or delay by Landlord, Tenant shall be obligated to pay upon demand by
Landlord the number of installments due on the date of the demand from the
beginning of any calendar year for which any payment was due.
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(d) In
the event of any dispute, Tenant shall pay the amount of Landlord’s xxxx or
Statement hereunder and such payment shall be without prejudice to Tenant’s
position. If the dispute shall be determined in Tenant’s favor, by
agreement or otherwise, Landlord shall pay to Tenant the amount of Tenant’s
overpayment resulting from such compliance by Tenant. Before Tenant
shall raise any dispute to the Statement of Operating Expenses it must pay the
entire amount demanded by Landlord. Any dispute with respect to the
Statement shall only be raised in a separate plenary action instituted by Tenant
and not as a defense or counterclaim in any summary proceeding for possession or
non-payment of rent and provided further Tenant has delivered a Notice of
dispute, as per subparagraph (b), to Landlord; otherwise the Statement shall be
conclusive, final and binding between the parties. In any summary
proceeding, the Statement of Operating expenses prepared by Landlord shall be
binding, conclusive and final between the parties.
59. (a)
Subject to Tenant’s rights as set forth herein to dispute the mathematical
correctness of any statement, xxxx or demand furnished by Landlord with respect
to any item of Additional Rent provided for in this Lease, Tenant’s obligation
to make any Additional Rent payments provided for in this Lease shall be
absolute and not conditioned on the happening of any act, thing, or occurrence,
including without limitation the time or timeliness at or with which such
statement, xxxx or demand is furnished to or made upon Tenant, other than the
occurrence of cost increases giving rise to the obligation to make such
payments. Landlord’s failure during the term of this Lease to prepare
and delivery any statements or bills, required to be delivered to Tenant
hereunder, or Landlord’s failure to make a demand under any other provision of
this Lease shall not in any way be deemed to be a waiver of, or cause Landlord
to forfeit or surrender its rights to collect any Additional Rent which may have
become due pursuant to any provisions herein during term of this Lease and shall
survive the expiration or sooner termination of this Lease.
(b) In
no event shall any adjustment of any payments payable by Tenant in accordance
with the provisions of this Lease result in a decrease in Fixed Annual Rent, nor
shall any adjustment of any Additional Rent payable by Tenant pursuant to any
provision of this Lease result in a decrease in any other Additional Rent
payable by Tenant pursuant to any provisions of this Lease, it being agreed and
understood that the payment of Additional Rent under this Lease is an obligation
supplemental to Tenant’s obligations to pay Fixed Annual Rent and any Additional
Rent pursuant to any other provision of this Lease.
(c) If
a lease year shall end after the expiration or termination of this Lease, the
Additional Rent payable by Tenant in respect thereof shall be prorated to
correspond to that portion of such year occurring within the term of this
Lease.
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60. If
there now is, or shall be installed in the building a “sprinkler system” and
said system or any of its appliances shall be damaged or injured or not in
proper working order by reason of any act or omission of Tenant, Tenant’s
agents, servants, employees, licensees, or visitors, Tenant shall forthwith
restore the same to working condition at its own expense, and if the New York
Board of Fire Underwriters or the New York Fire Exchange or any bureau,
department or official of the State or City government requires or recommends
that any changes, modifications, alterations or additional sprinkler heads, or
other equipment be made or supplied by reason of Tenant’s business, the location
of partitions, trade fixtures or other contents of the Demised Premises or for
any other reason or if any such changes, modifications, alterations, additional
sprinkler heads or other equipment became necessary to prevent the imposition of
a penalty or charge against the full allowance for a sprinkler system in the
Fire insurance rate so fixed by said exchange or by any fire insurance company,
Tenant shall, at its own expense, promptly make and supply such changes,
modifications, alterations, additional sprinkler heads, or other
equipment.
61. In
addition to the events described in Article 9(d) of the Lease, if the repair of
any damage to the building would, in Landlord’s judgment, require an expenditure
of more than forty percent (40%) of the full insurable value of the building
immediately prior to the fire or other casualty, Landlord will have the options
given to it pursuant to Paragraph 9, subsection (d) of the Lease.
62. (a)
If Tenant is in arrears in payment of rent or Additional Rent, Tenant waives
Tenant’s right, if any, to designate the items against which any payments made
by Tenant are to be credited, and Tenant agrees that Landlord may apply any
payments made by Tenant to any items Landlord see fit, irrespective of and
notwithstanding any designation or request by Tenant as to the items against
which any such payments shall be credited.
(b) If
Tenant shall default in payment of any fixed rent, percentage rent, Additional
Rent or any other charge payable hereunder by Tenant to Landlord on any date
upon which the same becomes due, and such default shall continue for fifteen
(15) days after Landlord shall have given to Tenant a written notice specifying
such default, Landlord may give to Tenant a notice of intention to end the term
of this Lease at the expiration of three (3) days from the date of the giving of
such notice, and, in the event such notice is given, this lease and the term
stated hereby granted (whether or not the term shall have commenced) shall
expire and terminate upon the expiration of said three (3) days with the same
effect as if that day were the date hereinbefore set for the expiration of the
term of this Lease, but Tenant shall remain liable for damages as provided in
paragraph 18 of this Lease
63. In
the event any payment under this Lease shall be made in the form of a check from
any other person, firm or corporation other than the person, firm or corporation
named in this Lease, the acceptance of same by Landlord shall not, under any
circumstances, be deemed recognition of a subletting or any assignment of this
Lease, regardless of the number of times that such payment shall be made by such
other person, firm or corporation.
64. (a)
If Tenant shall fail to pay all or any part of any installment of Fixed Annual
Rent for more than five (5) days after the same shall become due and payable,
Tenant shall pay as Additional Rent hereunder to Landlord a late charge of three
(3) cents for each dollar of the amount of such Fixed Annual Rent or Additional
Rent which shall not have been paid to Landlord within five (5) days after
becoming due and payable.
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(b) In
every case in which Tenant is required by the terms of this Lease to pay to
Landlord a sum of money (including, without limitation, payment of Fixed Annual
Rent and Additional Rent) and payment is not made within fifteen (15) days after
the same shall become due, Tenant shall pay as Additional Rent hereunder,
interest on such sum or so much thereof as shall be unpaid from the date it
becomes due until it is paid. Such interest shall be computed at a
rate which shall be one (1%) percent per month; provided, however, in no event
shall such interest be in excess of the highest rate of interest which shall
from time to time be permitted under the laws of the State of New York to be
charged on late payments of sums of money due pursuant to the terms of a
Lease.
(c) The
late charge payable pursuant to subparagraph (a) above and the interest payable
pursuant to subparagraph (b) above shall be (i) payable on demand and
(ii) without prejudice to any of Landlord’s rights and remedies hereunder,
at law or in equity for nonpayment or late payment of rent or other sum and in
addition to any such rights and remedies. No failure by Landlord to
insist upon the strict performance by Tenant of Tenant’s obligations to pay late
charges and interest as provided in this paragraph shall constitute a waiver by
Landlord of its right to enforce the provisions of this paragraph in any
instance thereafter occurring. The provisions of this paragraph shall
not be construed in any way to extend the grace periods or notice periods
provided for in paragraph 17 of this Lease.
65. Notwithstanding
anything to the contrary contained in this Lease, any monies due Landlord other
than the annual rent are deemed to be Additional Rent, and any default in the
payment of Additional Rent shall give to Landlord the same remedies as it has
with respect to a default in the payment of rent.
66. In
the event the rent or Additional Rent or any part hereof provided to be paid by
Tenant under the provisions of this Lease shall become uncollectible or shall be
reduced or required to be reduced or refunded by virtue of any Federal, State,
County or City law, order, or regulation, or by any direction of a public
officer or body pursuant to law, or the orders, rules, codes or regulations of
any organization or entity formed pursuant to law, whether such organization or
entity be public or private, then Landlord, at its option, may at any time
thereafter terminate this Lease, by not less than thirty (30) days’ written
notice to Tenant, on a date set forth in said notice, in which event this Lease
and the term hereof shall terminate and come to an end on the date fixed in said
notice as if the said date were the date originally fixed herein for the
termination of this Lease. Landlord shall not have the right to
terminate this Lease if Tenant within such period of, thirty (30) days shall, in
writing, lawfully agrees that the rental and Additional Rental herein reserved
is a reasonable rental and additional rental, and agrees to continue to pay such
rental and additional rental and if such agreement by Tenant shall then be
legally enforceable by Landlord.
67. If,
in connection with obtaining financing for the building, a bank, insurance
company or other lending institution shall request reasonable modifications in
this Lease as a condition to such financing, Tenant will not unreasonably
withhold, delay, or defer its consent thereto, provided that such modifications
do not increase the obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created.
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68. If
the Landlord, its successor or assigns or any contract vendee decides that after
June 1, 2011 it intends to convert all or substantially all of the Building
above the first floor to residential use, then the Landlord, its successor or
assigns shall send Tenant six (6) months prior notice of termination and
cancellation of the lease and the lease shall terminate and expire on the date
set forth in said notice as if said date were fixed in the lease for the end and
expiration of the term. For the purpose of this Article the notice
sent by Landlord its successor or assigns or any contract vendee shall
constitute prima facie evidence of Landlord’s intention to convert all or
substantially all of the Building above the first floor to residential
use.
69. (a)
Tenant agrees it shall indemnify and save Landlord harmless against all costs,
claims, loss or liability, including reasonable attorney’s fees and expenses,
resulting from delay by Tenant in surrendering the Demised Premises upon the
expiration or earlier termination of this Lease, including, without limitation,
any claims by any succeeding Tenant founded on such delay.
(b) The
parties recognize and agree that the damage to Landlord resulting from any
failure by Tenant’s timely surrender of the Demised Premises will be
substantial, will exceed the amount of monthly rent theretofore payable
hereunder, and will be impossible of accurate measurement. Tenant
therefore agrees that if possession of the Demised Premises is not surrendered
to Landlord within ten (10) days after the date of the expiration or earlier
termination of the terms of this Lease, then Tenant will pay Landlord, as
liquidated damages, for each month and for each portion of any month during
which Tenant holds over in the Demised Premises after expiration or termination
of the term of this Lease, a sum equal to two (2) times the average rent and
Additional Rent which was payable per month under this Lease during the last six
(6) months of the term hereof.
(c) The
provisions of subparagraph (a) and (b) above are independent of one another and
Tenant agrees that payments made pursuant to subparagraph (b) shall not in any
way reduce Tenant’s obligation to indemnify Landlord pursuant to subparagraph
(a). The payments required to be made by Tenant pursuant to
subparagraphs (a) and (b) above shall be (i) payable on demand, and (ii) without
prejudice to any of Landlord’s rights and remedies hereunder at law or in equity
for Tenant’s delay in surrendering the Demised Premises in accordance with the
terms of this Lease upon the expiration or earlier termination of this
Lease.
70. Notwithstanding
paragraph 28 of the printed portion of this Lease, all bills or rent or
additional rent statements sent by Landlord to Tenant may be sent by regular
mail.
71. Tenant
shall give notice to Landlord, in writing, promptly after Tenant learns of any
accident in or about the Demised Premises. This notification shall
not be deemed to imply or impose any liability upon Landlord relating to such
accident.
72. Tenant
agrees, at any time and from time to time, as requested by Landlord, upon not
less than ten (10) days’ prior notice, to execute and deliver 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 rent and
Additional Rent have been paid, and stating whether or not, to the best
knowledge of Tenant, Landlord is in default in performance of any of its
obligations under this Lease, and, if so, specifying each such default of which
Tenant may have knowledge, and stating whether or not, to the best knowledge of
Tenant, any event has occurred which the giving of notice or passage of time, or
both, would constitute such a default, and if so, specifying each such event, it
being intended that any such statement delivered pursuant hereto shall be deemed
a representation and warranty to be relied upon by Landlord and by others with
whom Landlord may be dealing, regardless of independent
investigation.
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73. Tenant
shall look only to Landlord’s estate and property in the building and the income
derived therefrom for the satisfaction of Tenant’s remedies for the collection
of a judgment (or other judicial process) requiring the payment of money by
Landlord in the event of any default or breach of Landlord hereunder, and no
other property or assets of Landlord or its partners or principals, disclosed or
undisclosed, shall be subject to lien, levy, execution or other enforcement
procedure for the satisfaction of Tenant’s remedies under or with respect to
this Lease, the relationship of Landlord and Tenant hereunder or Tenant’s use or
occupancy of the Demised Premises; and if Tenant shall acquire a lien on such
other property or assets by judgment or otherwise, Tenant shall promptly release
such lien by executing and delivering to Landlord an instrument to that effect
prepared by Landlord.
74. If
Tenant shall request Landlord’s approval or consent and Landlord shall fail or
refuse to give such approval or consent, Tenant shall not be entitled to any
damages for any withholding or delay of such approval or consent by Landlord, it
being intended that Tenant’s sole remedy shall be an action for injunction or
specific performance (the rights to money damages or other injunction being
hereby specifically waived), and that such remedy shall be available only in
those cases where Landlord shall have expressly agreed in writing not to
unreasonably withhold its consent or approval or where as matter of law Landlord
may not unreasonably withhold its consent or approval.
75. Tenant
shall and hereby does waive its right and agrees not to interpose any
counterclaim or offset, of whatever nature and description, in any proceeding or
action which may be instituted by Landlord against Tenant to recover rent,
Additional Rent, other charges, or for damages, or in connection with any
matters or claims whatsoever arising out of or in any way connected with this
Lease, or any renewal, extension, holdover, or modification thereof, the
relationship of Landlord and Tenant, or Tenant’s use or occupancy of said
premises, except mandatory counterclaims. This clause, as well as the
“waiver of jury trial” provision of this Lease, shall survive the expiration,
early termination, or cancellation of this Lease or the terms
thereof. Nothing herein contained, however, shall be construed as a
waiver of Tenant’s right to commence a separate action on a bona fide claim
against Landlord.
76. Tenant
expressly acknowledges and agrees that Landlord has not made and is not making,
and Tenant, in executing and delivering this Lease, is not relying upon any
warranties, representations, promises, or statements, except to the extent that
the same are expressly set forth in this Lease.
77. If
any conflict shall arise between any of the provisions of this Rider and any of
the terms, printed or typewritten, of the printed portion of the Lease to which
this Rider is attached, all such conflicts shall be resolved in favor of the
provisions of this Rider.
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78. This
Lease shall be governed by and construed in accordance with the laws of the
State of New York. If any provisions of this Lease or the application
thereto to any person or circumstances for any reason and to any extent, be
invalid or unenforceable, the remainder of this Lease and the application of the
provisions to other persons or circumstances shall not be affected but rather
shall be enforced to the extent permitted by law. This Lease shall be
construed without regard to any presumption or other rule requiring construction
against the party causing this Lease or any part thereof to be
drafted. Each covenant, agreement, obligation, or other provision of
this Lease on Tenant’s part to be performed shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent on any other
provisions of this Lease. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the content may
require.
79. The
captions, numbers and definitions herein are inserted only as a matter of
convenience and are not intended to define, limit, construe or describe the
scope or intent of any paragraph, nor in any way affect this
Lease. In conjunction therewith, the defined term “Landlord” as used
in this Rider shall be deemed to be one and the same as the defined term “Owner”
as used in the printed portion of this Lease.
80. This
Lease shall not be binding upon Landlord unless and until it has been duly
executed by Landlord, approved by the Landlord’s mortgagee, and delivered by
Landlord to Tenant.
81. Except
as otherwise specifically stated in this Lease, all rent due under this Lease,
whether base rent or additional rent, is due on the first of each month, in
advance.
82. If
Landlord shall incur any expense (whether paid or not) arising from either
(a) its performance of any act which Tenant is required to perform
hereunder; or (b) enforcement of any of its legal rights or remedies against
Tenant, whether related to a default by Tenant hereunder or otherwise, and
whether or not formal legal action or proceedings be commenced; or (c) its
successful defense of any action or proceeding brought by Tenant whether such
action be related to a provision of this Lease or otherwise; or (d) its
successful prosecution of any counterclaim or third party claim in the context
of an action or third party action brought against it by tenant, such expense,
context of action or third party action brought against it by Tenant, such
expense, including attorney’s fees and disbursements, shall be paid by the
tenant to the Landlord on demand as Additional Rent. The terms
“successful defense” and “successful prosecution” as used herein shall mean any
determination on the merits by a Court of competent jurisdiction in favor of the
Landlord or, in the event of default by Tenant, the entry of default judgment
against him, her or it.
83. Tenant
covenants, represents and warrants that Tenant has had no dealings or
negotiations with any broker or agent in connection with the negotiation or
consummation of this Lease, other than Urban Management Inc. (“Urban”) and Urban
xxxxx receive from Landlord’s mortgagee one full leasing
commission. Tenant covenants and agrees hold harmless and indemnify
Landlord from and against any and all cost, expense (including, without
limitation, attorney’s fees and expenses) or liability for compensation with
respect to this Lease or the negotiation thereof other than
aforesaid.
18
84. Provided
that a) Tenant is not in default of any of the terms covenants and conditions of
this Lease beyond applicable notice and cure dates and b) as its primary
business Tenant sells antique carpets or carpets that are over fifty years old,
Landlord agrees that it will not lease other space in the Building for a primary
use constituting the sale of antique carpets or carpets over fifty years
old. The foregoing restriction shall terminate if during any calendar
year that this Lease is effect, Tenant no longer sells antique carpets or
carpets that are over fifty years old as its primary business, which shall be
defined as more that fifty (50%) percent of revenue from such sales during any
such calendar year.
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URBAN
DEVELOPMENT PARTNERS (61), LLC
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|
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Landlord
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|
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By:
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/s/ Xxxxxx Xxxxxx
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XXXXXX
XXXXXX, Managing Member
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|
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XXXXX XXXXXX XXXX, LTD.,
Tenant
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|
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By:
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/s/ Xxxxx Xxxxxx
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XXXXX
XXXXXX, President
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19
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STATE
OF NEW YORK
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)
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:
ss.:
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|
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COUNTY
OF NEW YORK
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)
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On the
28th
day of September in the year 2004 before me, the undersigned, a Notary Public in
and for said State, personally appeared Xxxxx Xxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the
instrument,
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By:
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/s/ Xxxxxx X. Xxxx
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Notary
Public
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20
