EXHIBIT 10.4
AGREEMENT OF LEASE, made as of this 26th day of May,
2000, between 0000 XXXXXXXX ASSOCIATES, a partnership having
offices in care of Helmsley-Spear, Inc., party of the first part,
hereinafter referred to as "Landlord" or "Lessor", and IAM GROUP,
LTD, a domestic corporation having offices at New York City,
party of the second part, hereinafter referred to as "Tenant" or
"Lessee".
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby
hires from Landlord the space on the 19th floor, as more
particularly shown on the plan annexed hereto and made a part
hereof, Room 1907/08 in the building known as 0000 Xxxxxxxx in
the Borough of Manhattan, City of New York for the term of 5
years (or until such term shall cease and expire as hereinafter
provided) to commence on the 1st day of August 2000 and to end on
the 31st day of July 2005, both dates inclusive at an annual rent
of
$146,720.00 p.a.; $12,226.67 p.m. - 8/1/2000 -7/31/2003
$150,912.00 p.a. $12,576.00 p.m. - 8/1/2003 - 7/31/2005
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 OF $____________ AS ABOVE IN ADVANCE ON THE FIRST
DAY OF EACH MONTH DURING SAID TERM AT THE OFFICE OF LANDLORD OR
SUCH OTHER PLACE AS LANDLORD MAY DESIGNATE, WITHOUT ANY SET OFF
OR DECUTION WHATSOEVER, EXCEPT THAT TENANT SHALL PAY THE FIRST
MONTHLY INSTALLMENT(S) ON THE EXECUTION HEREOF (UNLESS THIS LEASE
BE A RENEWAL).
The parties hereto, for themselves, their heirs,
distributees, executors, administrators, legal representatives,
successors and assigns, hereby covenant and agree as follows:
FIRST: - Tenant shall pay the rent and additional rent as above RENT
and as hereinafter provided.
SECOND: - (a) Tenant shall pay to Landlord, as additional rent ADDITIONAL
hereunder, in advance, on the first day of each and every month RENT
during the term hereof, all sums expended by Landlord and/or
which become due to Landlord under this lease and under any
collateral agreements relating to the premises. Tenant's use and
occupancy thereof, the supplying by Landlord to Tenant of any
services in connection therewith, together with any fines or
penalties imposed or assessed by any governmental authority by
reason of failure to comply with its requirements.
(b) 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 paragraphs of this lease. Landlord may
immediately or at any time thereafter and without notice perform
the same for the account of Tenant, and if Landlord makes any
expenditures or incurs any obligations for the payment of money
in connection therewith including, but not limited to, attorneys'
fees in instituting, prosecuting or defending any action or
proceeding, such sums paid or obligations incurred with interest
and costs shall be deemed to be additional rent hereunder.
(c) The receipt by Landlord at any time of any
installment of the regular stipulated rent hereunder or of any
additional rent shall not be deemed to be a waiver of any other
additional rent then due. For the nonpayment of any additional
rent, Landlord shall have all the rights and remedies which it
would have in the case of a default in the payment of the regular
stipulated rent hereunder or any installment thereof.
THIRD: - In the vent that, at the commencement of the term of RENT DUE
this lease, or thereafter, Tenant shall be in default in the UNDER
payment of rent to Landlord pursuant to the terms of another OTHER
lease with AS Landlord or with Landlord's predecessor in LEASE AS
interest. Landlord may, at Landlord's option and without notice ADDITIONAL
to Tenant, add the amount of such arrearages to any monthly RENT
installment of rent payable hereunder, and the same shall be
payable to Landlord as additional rent.
FOURTH: - Tenant shall use and occupy the demised premises for
office and showroom use, sale of apparel at wholesale not retail,
in additional to licensees of apparel and related items,
including E commerce and website sales. and for no other purposes
whatsoever, without the prior written consent of Landlord in each
instance.
FIFTH: - Tenant at its sole expense shall comply with all laws, REQUIREMENTS
orders and regulations of Federal, State, County and Municipal OF LAW
Authorities and with any direction of any public officer or
officers, pursuant to law, which shall impose any violation,
order or duty upon Landlord or Tenant with respect to demised
premises, or the use or occupation thereof. Tenant shall not do,
or permit to be done, any act or thing upon said premises which
shall or might subject Landlord to any liability or
responsibility for injury to any person or persons or to property
by reason of any business or operation being carried on upon said
premises or for any other reason.
SIXTH: - Tenant will not at any time use or occupy the demised CERTIFICATE
premises in violation of the certificate of occupancy or OF OCCUPANCY
certificate of compliance issued for the building of which the
demised premises forma part and in the event that any department
of the City or State of New York shall hereafter at any time
contend and/or declare by notice, violation, order or in any
other manner whatsoever that the premises hereby demised are used
for a purpose which is a violation of such certificate of
occupancy. Tenant shall, upon five (5) days' written notice from
Landlord, immediately discontinue said use of such premises.
Failure by Tenant to discontinue such use after such notice shall
be considered a default in the fulfillment of a covenant of this
lease. and Landlord shall have the right to terminate this lease
immediately, and in addition thereto shall have the right to
exercise any and all rights and privileges and remedies given to
Landlord by and pursuant to the provision of Paragraph 40 hereof.
The statement in this lease of the nature of the business to be
conducted by Tenant in demises premises shall not be deemed or
construed to constitute a representation or
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guaranty by Landlord that such business may continue to be
conducted in the premises for the entire period of the lease or
is lawful or permissible under the certificate of occupancy in
effect of the building of which the demised premises form a part,
or otherwise permitted by law. If alternations or additional
including but not limited to a sprinkler system, are needed to
permit lawful conduct of Tenant's business or to comply with the
certificate of occupancy, the same shall be made by and at the
sole expense of Tenant.
SEVENTH: - Tenant shall not suffer any act to be done or any NON-
condition to exist on the demised premises or any part thereof or HAZARDOUS
any article to be brought thereon, which may be dangerous, unless USES
safeguarded as required by law, or by any insurance carrier
having any interest in such conduct or condition or which may, in
law, constitute a nuisance, public or private, and as not to make
void or voidable any insurance applicable to the building, under
penalty of damages and forfeiture.
EIGHTH: - Tenant shall not any time allow smoking on any part of SAFETY
the premises where stock is stored. Tenant shall store all silk PRECAUTIONS
and other textiles in steel bins or shelving the bottoms of which
shall be at least six inches above the floor, and the tops of
which shall extend at least three inches and shall have drip
points so as to shed water from the goods. No shelving bins shall
be installed without Landlord's prior written consent. Tenant
shall make all floors water-tight by painting or covering them
with linoleum or other water-tight floor covering. Where cleaning
fluid is used, it shall be non-inflammable. Tenant shall use no
cleaning fluid not approved in writing by Landlord. Tenant will
not permit the accumulation of waste or refuse matter on the
premises.
NINTH: - Tenant will conduct its business in such a manner as to TENANT TO
enable Landlord other tenants in the building to obtain the KEEP
lowest possible insurance rate upon the entire building in which INSURANCE
the demised premises are located, and will, at its sole expense, RATE LOW
comply with all rules, orders, regulations or requirements of all
public liability, fire and insurance policies in force at any
time with respect to the demised premises, as well as all rules,
orders, regulations or requirements of the New York Board of Fire
Underwriters or any other similar body, and shall not do or
permit anything to be done in or upon said premises or bring or
keep anything therein, except as now or hereafter permitted by
the Fire Department, Board of Fire Underwriters, Fire Insurance
Rating Organization, or other authority having jurisdiction and
then only in such quantity and manner of storage as not to
increase the rate for fire insurance applicable to the building,
or use the premises in a manner which shall increase the rate of
fire insurance on the building of which demised premises form a
part, or on property located therein, over that in effect prior
to this lease. If by reason of failure of Tenant to comply with
the provisions of this paragraph including, but not limited to,
the mere use to which Tenant puts the premises, 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 Landlord, as additional rent hereunder, for that
part of all fire insurance premiums thereafter paid by Landlord,
which shall have been charged because of such failure or use by
Tenant, and shall make such reimbursement upon the first day of
the month
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following such outlay by Landlord. In any action or
proceeding wherein Landlord and Tenant are parties, a schedule or
"make up" of rate for the building or demised premises issued by
the New York Fire Insurance Exchange or other body making fire
insurance rates for said premises, shall be conclusive evidence
of the facts therein stated and of the several items and charges
in the fire insurance rate then applicable to said premises.
Tenant shall not bring, permit to be brought or kept in or on the
demised premises any inflammable, combustible or explosive fluid,
chemical substance or material other than silk or other textiles,
or cause or permit any odors of cooking or other processes, or
any unusual or other objectionable odors to permeate from the
demised premises. That the premises are being used for the
purposes set forth herein shall not relieve Tenant from the
foregoing duties, obligations and expenses.
TENTH: (a) Tenant shall not assign, mortgage or encumber this ASSIGNMENT
agreement nor underlet the demised premises or any part thereof MORTGAGE
or permit the demised premises or any part thereof to be occupied AND SUB-
by anybody other than Tenant, without the prior written consent LEASING
of Landlord in each instance. The transfer of a majority of the
issued and outstanding capital stock of any corporate Lessee of
this lease or a majority of the total interest in any partnership
Lessee, however accomplished, and whether in a single transaction
or in a series of related or unrelated transactions, shall be
deemed an assignment of this lease. If this lease be assigned or
if the demised premises or any part thereof be underlet or
occupied by anybody other than Tenant, Landlord may, after
default by Tenant, collect rent from the assignee, under tenant
or occupant and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant or the
acceptance of the assignee, under-tenant or occupant as tenant,
or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by
Landlord to an assignment or underletting shall not in any wise
be construed to relieve Tenant from obtaining the express consent
in writing of Landlord to any further assignment or underletting.
(b) If the demised premises shall be underlet in whole
or in part by Tenant or its heirs, executors, administrators,
legal representatives, successor or assigns, such party shall,
within three (3) days of such underletting, furnish Landlord with
a duplicate original of such underlease and shall, on demand of
Landlord, supply Landlord within three (3) days of such demand, a
written list of all such undertenants, the terms, including
expiration dates of their under-tenancies, the rents payable
thereunder, and any additional information requested by Landlord.
This provision of compliance therewith, however, shall in no
event be construed to be a consent to any underletting or a
waiver of the covenant against underletting contained herein.
Non-compliance by Tenant with the provisions of this paragraph
shall be deemed to be a breach of this lease.
(c) Tenant assumes and shall be responsible for and
liable to Landlord, for all acts and omissions on the part of any
present or future under-tenant, their agents, employees, servants
or licenses, and any breach or violation of any of the terms,
covenants, agreements, provisions, conditions and limitations of
this lease,
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whether by act or omission, by any under-tenant shall constitute
a breach or violation of this lease by Tenant.
ELEVENTH: - Throughout the term of this lease, Tenant will take WASTE
good care of the demised premises and appurtenances and suffer no
waste, damage, disfigurement or injury thereto or any part
thereof.
TWELFTH: - (a) Tenant shall make no alternations, decorations, ALTERATIONS
installations, additions or improvements in or to the demised
premises, including, but not limited to, an air-conditioning or
cooling system, unit or part thereof or other apparatus of like
or other nature, nor bring materials in connection therewith on
the demised premises, without Landlord's prior written consent
and then only by contractors or mechanics approved by Landlord,
and subject to plans and specifications approved by Landlord. All
such work, alterations, decorations, installations, additions or
improvements shall be done at Tenant's sole expense and at such
times and in such manner as Landlord may from time to time
designate. All alterations, decorations, installations, additions
or improvements upon demises premises, made by either party,
including all paneling, decorations, partitions, railings,
mezzanine floors, galleries, steam, water and air-conditioning
systems and units, shelving electric fixtures and the like,
shall, unless Landlord elects otherwise(which election shall be
made by giving a notice pursuant to the provisions hereof not
less than thirty (30) days prior to the expiration or other
termination of this lease or nay renewal or extension thereof)
become the property of Landlord, and shall remain upon, and be
surrendered with, said premises, as a part thereof, at the end of
the term or renewal term, as the case may be. In the event
Landlord shall elect otherwise, then such alterations,
installations, additions or improvements made by Tenant upon the
demised premises as the Landlord shall select, shall be removed
by Tenant at Tenant's sole cost and expense. All alterations,
decorations, installations, additions or improvements installed
by Tenant may be used by Tenant without additional charge for
such use, and without any right in the Landlord to remove the
same in the absence of any default under this lease during the
term hereof, (b) Tenant, at its own expense, will promptly repair
all damage and injury resulting form such removal and restore the
space theretofore occupied by such fixtures and installations to
good order and condition and to character and appearance equal to
that of the area adjacent thereto, in default of any of which
Landlord may at its option cause the same to be done at Tenant's
expense.
THIRTEENTH: - Tenant shall take good care of the demised premises REPAIRS
and the fixture sand appurtenances therein, and at its sole cost
and expense make all repairs thereto as and when needed to
preserve them in good working order and condition. All damage or
injury to the demised premises and to its fixtures, appurtenances
and equipment or to the building of which the same form a part or
to its fixtures, appurtenances and equipment caused by Tenants'
moving property in or out of the building or by installation or
removal of furniture, fixtures or other property, or resulting
from fire, explosion, air-conditioning unit or system, short
circuits flow or leakage of water, steam, illuminating gas, sewer
gas, sewerage or odors or by frost or by bursting or leaking of
pipes or
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plumbing works or gas or form any other cause of any other kind
or nature whatsoever due to carelessness, omission, neglect,
improper conduct or other cause of Tenant, its servants,
employees, agents, visitors or licenses shall be repaired,
restored or replaced promptly by Tenant at its sole cost and
expense to the satisfaction of Landlord. All aforesaid repairs,
restorations, and replacements shall be in quality and class
equal to the original work or installations. If Tenant fails to
make such repairs, restorations or replacements within a
reasonable time same may be made by Landlord at expense of Tenant
and collectible as additional rent.
FOURTEENTH: - (a) Except where otherwise provided in this lease, LANDLORD'S
there shall be no allowance to Tenants for a diminution of rental LIABILITY,
value and no liability on the part of Landlord by reasons of ALTERATIONS
inconvenience, annoyance or injury to business arising from OR REPAIRS
Landlord, Tenant or others making any repairs, alterations,
additions or improvements in or to any portion of the building or
demised premises, or in or to fixtures, appurtenances, or
equipment thereof, and no liability upon Landlord for failure of
Landlord or others to make any repairs, alterations, additions or
improvements in or to any portion of the building or of demised
premises, or in or to the fixtures, appurtenances or equipment
thereof, (b) Landlord reserves the right to stop service of the
electric water, sprinkler, steam, air conditioning, elevator,
heating and plumbing systems, when necessary, by reason of
accident, or emergency or for repairs, alterations replacement s
or improvements, in the judgment of Landlord desirable or
necessary to be made until said repairs, alterations replacements
or improvements shall have been completed.
FIFTEENTH: - Tenant agrees that whenever any alterations, EMPLOY-
additions, improvements, changes or repairs to the said premises MENT OF
are consented to by Landlord, or in the moving of merchandise, UNION LABOR
fixtures for equipment into the said building, or moving these TO MAKE
same therefrom, only such labor under agreement with the Building ALTERATIONS
Trades Employers' Association of New York City, or which shall
not cause strikes or concerted labor action by other employees of
the building, and which have the same or similar labor union
affiliations as those employed by Landlord or Landlord's
contractors shall be employed.
SIXTEENTH: - (a) Any mechanic's lien filed against the demised DISCHARGE
premises, or the building of which the same form a part, for work OF LIENS
claimed to have been done for, or materials claimed to have been
furnished to Tenant, shall be discharged by Tenant within ten
(10) days thereafter, by payment in full or at Tenant's expense,
by filing the bond required by law. If Tenant fails to so pay or
file any bond, Landlord may pay the amount of said lien or
discharge the same by deposit, or otherwise, billing Tenant for
all expenses in connection therewith as additional rent.
(b) Nothing in this lease shall be deemed or construed
in any way as constituting the consent or request of Landlord,
express or implied by inference or otherwise, to any contractor,
sub-contractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific
improvement, alteration to, or repair of the demised premises, or
any part thereof, or for the demolition or replacement of the
demised premises or any part thereof.
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(c) Tenant agrees to obtain and deliver to Landlord
written and unconditional waivers of liens and agreements that is
filed plans may be replaced) for all plans, specifications and
drawings for work or material to be furnished to Tenant at the
premises, signed by all architects, engineers and designers to
become involved in such work for Tenant; with respect to
contractors, subcontractors, materialmen and laborers and all
work or materials to be furnished to Tenant at the premises.
Tenant agrees to obtain and deliver to Landlord written and
unconditional waiver of mechanics liens upon the premises or the
building after payments to the contractors and subject to any
applicable provisions of the Lien Law.
SEVENTEENTH: - Tenant will not, without Landlord's written SIGNS
consent place, affix or paint any signs, awnings, projections or
advertising material of any kind upon the exterior of the
premises or of the building, not upon the windows, nor in any
location that may be visible from any of the lobbies or
passageways. If Tenant shall cause or permit any sign or other
object, similar or dissimilar, to be placed on or affixed to any
part of the building not inside the space specifically demised
hereunder. Landlord shall have the right, without notice or
liability to Tenant, to remove and dispose of the same and to
make any repairs necessitated by such removal, all at Tenant's
sole expense and risk. Landlord's expenses in so doing shall be
deemed additional rent hereunder and collectible as such.
EIGHTEENTH: - (a) Tenant will not cause or permit any connection MISCELLANEOUS
to be made to the wiring on the electrical panel boards of the PROHIBITED
building without the prior written consent and supervision of ACTIONS OF
Landlord. TENANT
(b) Tenant agrees that it will not drive nails in, drill
in, disfigure or deface any part of the building nor suffer the
same to be done, nor cause or permit the floors, walls, doors or
ceilings of the demised premises to be drilled, hammered, pounded
or otherwise dealt with in a noisy or disturbing manner at any
time during customary business hours (i.e. between 9:00 a.m. and
5:00 p.m.) whether or not such activities are incidental to or
part of work to which Landlord has consented.
(c) Tenant shall not install any pressing equipment,
whether connected to Tenant's gas-fired boiler or to the building
steam system without first having plans and specifications
approved by Landlord.
The vacuum used by Pressing machines for the drying of garments
shall be created by an electrically driven vacuum pump. Tenant
shall not use any vacuum created by the use of steam from a
gas-fired boiler or from the building steam system.
(d) Tenant shall not permit any connection to be made at
the demised Premises with any high pressure steam lines, electric
current lines or water lines without Landlord's Prior written
consent.
(e) Tenant shall not make any electrical or plumbing
installation without Landlord's prior written consent. All water
lines must be installed in red brass.
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(f) Window air-conditioning units shall in no event be
installed without Landlords' Prior written approval or be mounted
so as to extend outward beyond the line of the window frame.
(g) Tenant shall install no linoleum, rubber, mastic or
vinyl tile floor covering, unless it is laid over a layer of
felt, double cemented in the manner approved by Landlord.
(h) Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area
which such floor was designed to carry and which is allowed by
law. Landlord reserves the right to prescribe the weight and
position of all safes which must be placed so as to distribute
the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings
sufficient in Landlord's judgment to absorb and prevent
vibration. noise and annoyance. Tenant agrees that upon the
written request of Landlord, Tenant will, within fifteen (15)
days of the mailing of such request, provide rubber or other
approved settings for absorbing, preventing and decreasing noise
and/or vibration from any or all machines or machinery, such
insulation or other devices for the prevention. decrease or
elimination of noise satisfactory to Landlord shall be made in
such manner and of such material as Landlord may direct. In the
event that Tenant fails to comply with the aforesaid request
within the fifteen (15) days aforementioned, Landlord may, at its
option, by notice in writing to Tenant. cause the term of this
lease to expire. Landlord in such event shall have the right to
re-enter the premises by summary proceedings or otherwise without
liability. Landlord shall not give less than thirty (30) days'
notice of its election to terminate the lease as above provided.
Landlord shall have the right to enter the demised premises with
workmen and materials and to insulate the machinery as above
provided, collecting from Tenant the cost of such work as
additional rent in the event that Tenant fails to comply with the
written request aforementioned after the expiration of fifteen
(15) days from the receipt thereof.
(i) Tenant shall not move any safe, heavy machinery,
heavy equipment, freight, bulky matter. or fixtures into or out
of the building without Landlord's prior written consent and the
filing with Landlord of a Riggers Liability Insurance Certificate
satisfactory of Landlord. If such safe, machinery, equipment,
freight, bulky matter or fixtures require special handling,
Tenant agrees to employ only persons holding a Master Rigger's
License to do said work, and that all work in connection
therewith shall comply with the Administrative Code of the City
of New York.
(j) If the demised premises be or become infested with
vermin, Tenant shall, at Tenant's expense, cause the same to be
exterminated from time to time to the satisfaction of Landlord.
and shall employ such exterminators and such exterminating
company or companies as shall be approved by Landlord.
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(k) The water and wash closets and other 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.
(l) Tenant agrees to provide Proper receptacles as
called for by the Fire Department, Board of Fire Underwriters.
Fire Insurance Rating Organization or of the authority having
jurisdiction. Tenant hereby agrees to cause its rubbish or waste
to be disposed of at its own cost and expense, subject to all the
rules and regulations that from time to time may be made in
connection therewith by Landlord, including a regulation that
Tenant shall use a single rubbish or waste remover designated by
Landlord for the removal of the rubbish or waste of the tenants
in the building. Tenant further agrees that it shall not at any
time store any of its rubbish or waste in the lobbies, foyers,
passage-ways or other spaces adjacent to the premises herein
demised, nor shall Tenant place the rubbish (which is to be taken
by the waste remover) in the said areas prior to 5:00 P.M.
(m) If Tenant is a lessee of any store in said building.
the said Tenant hereby agrees to keep the sidewalk. entrance and
passage-ways unencumbered and unobstructed and agrees further to
remove all ice and snow from the sidewalks immediately in front
of the demised premises.
(n) Tenant will not suffer, permit or allow unusual or
objectionable odors to be produced upon or permeate from the
demised Premises.
NINETEENTH: - Tenant will not clean. nor require, permit, suffer WINDOW
or allow any window in the demised Premises to be cleaned. from CLEANING
the outside in violation of Section 202 of the Labor Law or of
the rules of the Board of Standards and Appeals or of any other
board or body having or asserting jurisdiction.
NOTICE OF
TWENTIETH: - Tenant shall give prompt notice to Landlord of any DAMAGE TO
accidents to or defects in the pipes and apparatus in the PIPES OF
building or of any fire that may occur. FIRE
TWENTY-FIRST: - Tenant shall permit Landlord to erect, use and LANDLORD'S
maintain, pipes and conduits in and through the demised premises. ACCESS TO
Landlord or Landlord's agents shall have the right to enter the PREMISES
demised premises at all times to examine the same, and to show
them to prospective purchasers or lessees of the building, and to
make such decorations, repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable, and
Landlord and its representatives shall be allowed to take and
store all material into and upon said premises that may be
required therefor without the same constituting an eviction of
Tenant in whole or in part and the rent reserved shall in no wise
xxxxx while said decorations, repairs, alterations, improvements,
or additions are being made, by reason of loss or interruption of
business of Tenant, or otherwise, During the six months prior to
the expiration of the term of this lease or any renewal term.
Landlord may exhibit the premises to prospective tenants or
purchasers, and place upon said premises, or the, exterior
thereof the usual notice "To Let" or "For Sale", which notices
Tenant shall permit to remain thereon without molestation. If,
during the last month of the term, Tenant shall have removed all
or substantially all of Tenant's property therefrom, Landlord may
immediately enter and alter, renovate and redecorate
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the demised premises. without elimination or abatement of rent.
or incurring liability to Tenant for any compensation. and such
acts shall have no effect upon this lease. If Tenant shall not be
personally present to open and permit an entry into said premises
at any time when for any reason an entry therein shall be
necessary or permissible, Landlord or Landlord's agents may enter
the same by a master key, or may forcibly enter the same. without
rendering Landlord or such agents liable therefor (if during such
entry Landlord or Landlord's agents shall accord reasonable care
to Tenant's propeny). and without in any manner affecting the
obligations and covenants of this lease. Nothing herein
contained. however shall be deemed or construed to impose upon
Landlord any obligation, responsibility or liability whatsoever,
for the care, Supervision or repair of the building or any part
thereof other than as herein provided. Landlord shall also have
the right at any time, without the same constituting an actual or
constructive eviction and without incurring any liability to
Tenant therefor, to change the arrangement and/or location of
entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets, or other public parts of the building
and to change the name, number or designation by which the
building is commonly known.
TWENTY-SECOND: - Tenant agrees that Landlord may furnish ELECTRICITY
electricity to Tenant on a "submetering" basis or on a "rent
inclusion" basis". Electricity and electric Service, as used
herein, shall mean any element affecting the generation,
transmission, and/or distribution or redistribution of
electricity, including but not limited to services which
facilitate the distribution of service.
(a) Submetering: If and so long as Landlord provides
electricity to the demised premises on a submetering basis,
Tenant covenants and agrees to purchase the same from Landlord or
Landlord's designated agent at charges, terms and rates set, from
time to time, during the term of this lease by Landlord but not
more than those specified in the service classification in effect
on January 1, 1970 pursuant to which Landlord then Purchased
electric current from the public utility corporation serving the
part of the city where the building is located, provided however.
said charges shall be increased in the same percentage as any
percentage increase in the billing to Landlord for electricity
for the entire building, by reason of increase in Landlord's
electric rates or service classifications, subsequent to January
1, 1970, and so as to reflect any increase in Landlord's electric
charges, including changes in market prices for electricity from
utilities and/or other providers in fuel adjustments or by taxes
or charges of any kind imposed on Landlord electricity purchases
or redistribution, or for any other such reason, subsequent to
said date. Any such percentage increase in Landlord's billing for
electricity due to changes in rates, service classifications, or
market prices, shall be computed by the application of the
average consumption (energy and demand) of electricity for the
entire building for the twelve (12) full months immediately prior
to the rate and/or service classification change, or any changed
methods of or rules on billing for same, applied on a consistent
basis to the new rate and/or service classification or market
price, and to the service classification and rate in effect on
January 1, 1970. If the average consumption of electricity for
the entire building for said prior twelve (12) months cannot
reasonably be applied and used with respect to changed methods of or
10
rules on billing, then the percentage shall be computed by the
use of the average consumption (energy and demand) for the entire
building for the first three (3) months after such change,
projected to a full twelve (12) months, so as to reflect the
different seasons; and that same consumption so projected, shall
be applied to the service classification and rate in effect on
January 1, 1970. Where more than one meter measures the Service
of Tenant in the building, the service rendered through each
meter may be computed and billed separately in accordance with
the rates herein specified. Bills therefore shall be rendered at
such times as Landlord may elect and the amount, as computed from
a meter. shall be deemed to be, and be paid as, additional rent.
In the event that such bills are not paid within five (5) days
after the same are rendered, Landlord may, without further
notice, discontinue the Service of electric current to the
demised premises without releasing Tenant from any liability
under this lease and without Landlord or Landlord's agent
incurring any liability for any damage or loss sustained by
lessee by such discontinuance of service. If any tax is imposed
upon Landlord's receipt from the sale, resale or redistribution
of electricity or gas or telephone service to Tenant by any
Federal. State, or Municipal authority, Tenant covenants and
agrees that where permitted by law, Tenant's pro-rata share of
such taxes shall be passed on to and included in the xxxx of. and
paid by. Tenant to Landlord.
(b) Rent Inclusion: If and so long as Landlord provides
electricity to the demised premises on a rent inclusion basis,
Tenant agrees that the fixed annual rent shall be increased by
the amount of the Electricity Rent Inclusion Factor ("ERIF"), as
hereinafter defined. Tenant acknowledges and agrees (i) that the
fixed annual rent hereinabove set forth in this lease does not
yet, but is to include an ERIF of $2.95 per rentable square foot
to compensate Landlord for electrical wiring and other
installations necessary for, and for its obtaining and making
available to Tenant the redistribution of electric current as an
additional service; and (ii) that said ERIF shall be subject to
periodic adjustments as hereinafter provided, has been partially
based upon an estimate of the Tenant's connected electrical load,
in whatever manner delivered to Tenant, which shall be deemed to
be the demand (KW) and hours of use thereof, which shall be
deemed to be the energy (KWH), for ordinary lighting and light
office equipment and the Operation of the usual small business
machines, including Xerox or other copying machines (such
lighting and equipment are hereinafter called "Ordinary
Equipment") during ordinary business hours ("ordinary business
hours" shall be deemed to mean 50 hours per week), with Landlord
providing an average connected load of 4 1/2 xxxxx of electricity
for all purposes per rentable square foot. Any installation and
use of equipment other than Ordinary Equipment and/or any
connected load and/or energy usage by Tenant in excess of the
foregoing shall result in adjustment of the ERIF as hereinafter
provided. For purposes of this lease the rentable square foot
area of the presently demised premises shall be deemed to be
4,192 square feet.
If the cost to Landlord of electricity shall have been, or shall
be increased or decreased subsequent to May 1, 1996 (whether such
change occurs prior to or during the term of this Lease), by
change in Landlord's electric rates or service classifications or
electricity charges, including changes in market prices, or by
any increase subsequent to the last such electric rate or service
classification change or market price change, in
11
fuel adjustments or charges of any kind, or by taxes imposed on
Landlord's electricity purchases or on Landlord's electricity
redistribution. or for any other such reason, then the aforesaid
ERIF portion of the fixed annual rent shall be changed in the
same percentage as any such change in cost due to changes in
electric rates, service classifications or market prices. and,
also Tenant's payment obligation. for electricity redistribution,
shall change from time to time so as to reflect any such increase
in fuel adjustments or charges and such taxes. Any such
percentage change in Landlord's cost due to change in Landlord's
electric rates or service classifications or market prices shall
be computed on the basis of the avenge consumption of electricity
for the building for the twelve full months immediately prior to
the rate change or other such changes in cost. energy and demand.
and any changed methods of or rules on billing for same, applied
on a consistent basis to the new electric rate or service
classification or market price and to the immediately prior
existing electric rate or service classification or market price.
If the average consumption (energy and demand) for the entire
building for said prior (12) months cannot reasonably be applied
and used with respect to changed methods of or rules on billing,
then the Percentage increase shall be computed by the use of the
average consumption (energy and demand) for the entire building
for the first three (3) months after such change. projected to a
full twelve (12) months, so as to reflect the different seasons;
and that same consumption projected, shall be applied to the rate
and/or service classification or market price which existed
immediately prior to the change. The parties agree that a
reputable, independent electrical consultant firm, selected by
Landlord ("Landlord's electrical consultant"), shall determine
the percentage change for the changes in ERIF due to Landlord's
changed costs, and that Landlord's electrical consultant may from
time to time make surveys in the demised premises of the
electrical equipment and fixtures and use of current (i) If such
survey shall reflect a connected electrical load in the demised
premises in excess of 4 1/2 xxxxx of electricity for all purposes
per rentable square foot and/or energy usage in excess of
ordinary business hours (each such excess hereinafter called
"excess electricity") then the connected electrical load and/or
the hours of use portion(s) of the then existing ERIF shall be
increased by an amount which is equal to a fraction of the then
existing ERIF. the numerator of which is the excess electricity
(i.e. excess connected load and/or excess usage) and the
denominator of which is the connected load and/or the energy
usage which was the basis of the then existing ERIF. Such
fractions shall be determined by Landlord's electrical
consultant. The fixed annual rent shall then be appropriately
adjusted, effective as of the date of any such change in
connected load and/or usage, as disclosed by said survey. (ii) If
such survey shall disclose installation and use of other than
Ordinary Equipment, then effective as of the date of said survey.
there shall be added to the ERIF portion of fixed annual rent
(computed and fixed as hereinbefore described) an additional
amount equal to what would be paid under the SC-4 Rate I Service
Classification in effect on May 1, 1996 (and not the time-of-day
rate schedule) for such load and usage of electricity, with the
connected electrical load deemed to be the demand (KW) and the
hours of use thereof deemed to be the energy (KWH), as
hereinbefore provided, (which addition to the ERIF shall be
increased or decreased by all electricity cost changes of
Landlord. as hereinabove provided. from May 1.1996 through the
date of billing).
12
In no event, whether because of surveys, rates or cost changes,
or for any other reason, is the originally specified $2.95 per
rentable square foot ERIF portion of the fixed annual rent (plus
any net increase thereof, but not decrease. by virtue of all
electricity rate, service classification or market price changes
of Landlord subsequent to May 1, 1996) to be reduced.
(c) General Conditions: The determinations by Landlord's
electrical consultant shall be binding and conclusive on Landlord
and Tenant from and after the delivery of copies of such
determinations to Landlord and Tenant. unless, within fifteen
(15) days after delivery thereof, Tenant disputes such
determination. If Tenant so disputes the determination, it shall,
at its own expense, obtain from a reputable, independent
electrical consultant for its own determinations in accordance
with the provisions of this Article. Tenants consultant and
Landlord's consultant then shall seek to agree. If they cannot
agree within thirty (30) days they shall choose a third reputable
electrical consultant, whose cost shall be shared equally by the
parties, to make similar determinations which shall be
controlling. (If they cannot agree on such third consultant
within ten (10) days, than either party may apply to the Supreme
Court in the County of New York for such appointment.) However,
pending such controlling determinations. Tenant shall pay to
Landlord the amount of additional rent or ERIF in accordance with
the determinations of Landlord's electrical consultant. If the
controlling determinations differ from Landlord's electrical
consultant, then the parties shall promptly make adjustment for
any deficiency owed by Tenant or overage paid by Tenant.
At the option of Landlord. Tenant agrees to purchase from
Landlord or its agents all lamps and bulbs used in the demised
premises and to pay for the cost of installation thereof.
Supplementing Article 53 hereof, if all or part of the
submetering additional rent or the ERIF payable in accordance
with subdivision (a) or (b) of this Article becomes uncollectible
or reduced or refunded by virtue of any law, order or regulation,
the parties agree that, at Landlord's option, in lieu of
submetering additional rent or ERIF, and in consideration of
Tenant's use of the building's electrical distribution system and
receipt of redistributed electricity and payment by Landlord of
consultant's fees and other redistribution costs, the fixed
annual rental rate(s) to be paid under this lease shall be
increased by an "alternative charge" which shall be a sum equal
to $2.95 per year per rentable square foot of the demised
premises changed in the same percentage as any increases in the
cost to Landlord for electricity for the entire building
subsequent to May 1, 1996, because of electric rate. service
classification or market price changes. such percentage change to
be computed as in subdivision (b) provided.
Landlord shall not be liable to Tenant for any loss or damage or
expense which Tenant may sustain or incur if either the quantity
or character of electric Service is changed or is no longer
available or suitable for Tenant's requirements. Tenant covenants
and agrees that at all times its use of electric current shall
never exceed the capacity of existing feeders to the building or
Wiring installation. Tenant agrees not to connect any additional
electrical equipment to the building electric distribution
system, other than lamps, typewriters and other small office
machines which consume comparable amounts of electricity without
Landlord's prior written consent, which consent shall not be
unreasonably withheld. Any riser or risers to Supply Tenant's
electrical requirements, upon written request of Tenant, will be
installed by Landlord. at
13
the sole cost and expense of Tenant, if, in Landlord's sole
judgment, the same are necessary and will not cause permanent
damage or injury to the building or demised premises or cause or
create a dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants. In addition to the
installation of such riser or risers. Landlord will also at the
sole cost and expense of Tenant, install all other equipment,
proper and necessary in connection therewith subject to the
aforesaid terms and conditions. The parties acknowledge that they
understand that it is anticipated that electric rates, charges,
etc., may be changed by virtue of time of day rates or changes in
other methods of billing, and/or electricity purchases and the
redistribution thereof, and fluctuation in the market price of
electricity, and that the references in the foregoing paragraphs
to changes in methods of or rules on billing are intended to
include any such changes. Anything hereinabove to the contrary
notwithstanding, in no event is the submetering additional rent
or ERIF. or any "alternative charge", to be less than an amount
equal to the total of Landlord's payments to public utilities
and/or other providers for the electricity consumed by Tenant
(and any taxes thereon or on redistribution of same) plus 5%
thereof for transmission line loss, plus 15% thereof for other
redistribution costs. The Landlord reserves the right. at any
time upon thirty (30) days' written notice, to change its
furnishing of electricity to Tenant from a rent inclusion basis
to a submetering basis, or vice versa, or to change to the
distribution of less than all the components of the existing
service to Tenant. The Landlord reserves the right to terminate
the furnishing of electricity on a rent inclusion. submetering,
or any other basis at any time. upon thirty (30) days' written
notice to the Tenant. in which event the Tenant may make
application directly to the public utility and/or other providers
for the Tenant's entire separate supply of electric current and
Landlord shall permit its wires and conduits to the extent
available and safely capable, to be used for such purpose, but
only to the extent of Tenant's then authorized load. Any meters,
risers, or other equipment or connections necessary to furnish
electricity on a submetering basis or to enable Tenant to obtain
electric current directly from such utility and/or other
providers shall be installed at Tenant's sole cost and expense.
Only rigid conduit or electricity metal tubing (EMT) will be
allowed. The Landlord, upon the expiration of the aforesaid
thirty (30 ) days' written notice to the Tenant may discontinue
furnishing the electric current but this lease shall otherwise
remain in full force and effect. If Tenant was provided
electricity on a rent inclusion basis when it was so
discontinued, then commencing when Tenant receives such direct
service and as long as Tenant shall continue to receive such
service the fixed annual rent payable under this lease shall be
reduced by the amount of the ERIF which was payable immediately
prior to such discontinuance of electricity on a rent inclusion
basis.
TWENTY-THIRD: - (a) If Landlord installs a water meter to measure WATER
Tenant's water consumption for all purposes, Tenant shall pay SEWER RENTS
Landlord for the cost of the meter and the cost of the
installation thereof and throughout the duration of Tenants
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 Landlord may cause such meter and
equipment to be replaced or repaired and collect the cost thereof
from Tenant.
14
Tenant agrees to pay for water consumed, as shown on said meter
as and when bills are rendered, and on default in making such
payment Landlord may pay such charges and collect the same from
Tenant. Landlord may inspect such water meter at any time and
shall have access thereto at all times for the purpose of such
inspection.
(c) In addition to the foregoing. Tenant agrees to pay
its proportionate share of the water consumed in the toilets and
other portions of the premises over which Landlord may reserve
control, irrespective of the fact that the same shall be located
outside of the demised premises.
(d) Tenant covenants and agrees to pay its pro rata
share of 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 premises or the realty of which they are part
pursuant to law, order or regulation made or issued in connection
with the us. consumption, maintenance or supply of water, water
system or sewage or Sewage connection or system.
(e) The xxxx rendered by Landlord for metered water,
sewer or any other charges provided for in this paragraph "23"
shall be based upon Tenant's consumption and shall be payable by
Tenant as additional rent. Any such costs or expenses incurred or
payments made by Landlord for any of the reasons or purposes
hereinabove stated, shall be deemed to be additional rent payable
by Tenant and collectible by Landlord as such. If the building or
the demised premises or any part thereof be supplied with water
through a meter through which water is also supplied to other
premises, Tenant shall pay to Landlord as additional rent, on the
first day of each month, $55.00 as Tenant's portion.
Independently of and in addition to any of the remedies reserved
to Landlord hereinabove or elsewhere in this lease. Landlord may
xxx for and collect any monies to be paid by Tenant or paid by
Landlord for ANY of the reasons or purposes hereinabove set
forth.
TWENTY-FOURTH: - If the sprinkler system or any of its appliances SPRINKLER
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 in good working condition at its own
expense: and if the New York Board of Fire Underwriters or the
New York Fire Insurance Rating Organization or any bureau.
department or official of the State or City Government, require
or recommend that any changes, modifications. alterations or
additional sprinkler heads or other equipment be made or supplied
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 changes, modifications,
alterations, additional sprinkler heads or other 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 as fixed by said Rating Organization, or by any
Fire Insurance Company, Tenant shall, at Tenant's expense,
promptly make and supply such changes, modifications,
alterations. additional sprinkler heads or other equipment.
Tenant shall pay to Landlord as additional rent the sum of $55.00
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
TWENTY-FIFTH: - Tenant shall have the privilege of using the air AIR CONDI-
conditioning system which affects the whole or a portion of the TIONING
demised premises, and shall. at its own cost and expense maintain
and operate said system in compliance with all present and future
laws and governmental requirements, and shall obtain all
governmental licenses and permits now or hereafter required.
Tenant shall pay for all electric current, water and refrigerants
used in connection with said system. Tenant, at its own cost and
expense, shall make or cause to be made. all repairs.
alterations. changes. additions or improvements in and to said
system which may be necessary or which may be required or
recommended by Landlord or by any governmental authority, and
shall furnish all parts and supplies necessary or desirable in
connection therewith. but no alterations, changes, additions or
improvements shall be made by Tenant without the advance written
consent of Landlord. Landlord's charges for electric current.
water and refrigerants and for such parts, supplies, repairs,
alterations, changes, additions or improvements as are caused to
be furnished or made by Landlord shall be payable by Tenant as
additional rent upon presentation of Landlord's xxxx for same. If
Tenant shall default in paying any such xxxx for five (5) days,
Landlord shall have the right, in addition to any other rights
under this lease to terminate the operation of said air
conditioning system without notice to Tenant, and if such default
shall continue for sixty (60) days. Landlord shall have the right
to remove the whole or any part of said system from the demised
premises without notice to Tenant. The non-functioning or
defective functioning of said air conditioning system, or
Tenant's inability to operate or maintain the same in compliance
with lawful requirements, or Landlord's removal thereof or
termination of the Operation thereof as provided in this
paragraph, or any delay, discomfort or inconvenience suffered by
Tenant in connection therewith or. without limitation of or by
the foregoing, any other matter or thing related to such system,
shall not give rise to any obligation or liability on the part of
Landlord and shall not affect this lease or be deemed to release
or discharge Tenant of any of Tenant's obligations or liabilities
under this lease or otherwise. Title to said system and all
present and future parts thereof is and shall be vested in
Landlord.
TWENTY-SIXTH: - (a) As long as Tenant is not in default under any ELEVATOR
of the covenants of this lease. Landlord shall provide necessary
elevator facilities on business days from 8:00 A.M. to 6:00 P.M.
and on Saturdays 8:00 A.M. to 1:00 P.M. On Sundays. holidays and
nights. Landlord will furnish at least one (1) elevator (b) If
the building of which the demised premises are a part supplies
manually operated elevator service. Landlord may proceed with
alterations necessary to substitute automatic control elevator
service upon ten (10) days' written notice to Tenant without in
any way affecting the obligations of Tenant hereunder, provided
that the same shall done with the minimum amount of inconvenience
to Tenant, and Landlord pursues with due diligence the completion
of the alterations. Where automatic control elevator service is
now, or hereafter furnished, and the premises contain an entire
floor or floors. Tenant will provide. at its own cost and
expense, locks for all entrances to such floor or floors from the
elevators; (c) Tenant agrees it will not permit its employees
other than office help to use the passenger
16
elevator in said building. nor will it permit them to use the
stair leading to and from the passenger entrance to said
building. Landlord may prescribe and regulate which elevator and
entrance shall be used by Tenant's employees and for Tenant's
shipping.
TWENTY-SEVENTH: Landlord will: (a) Furnish heat to the demised
premises when and as required by law, on business days during
regular Cause to be kept clean the public halls and public
portions or the building.
(f) Cause to be kept clean the public halls and public HEAT,
portions of the building, which are used in common by all CLEANING,
Tenants. PUBLIC
AREAS
TWENTY-EIGHTH: - It is expressly agreed that if in consequence of
the use of the demised premises for manufacturing purposes any
Municipal or State Authority requires alterations and additions REQUIRED
to such premises or the building of which they are a part. ALTERATIONS
Landlord, in addition to other remedies provided for in this MACHINERY
lease, shall have the option of terminating this lease on sixty
60) days' written notice to Tenant. Upon expiration of said sixty
(60) days, the term of this lease shall terminate, and Tenant
shall immediately vacate the premises. In such event, Landlord
shall refund to Tenant the unearned pro rata portion of any rent
paid in advance. Landlord reserves the privilege of complying
with any order, rule or regulation as aforementioned in order to
remove such violation, if any. In any event, Tenant waives any
and all claims for damages growing out or the work in the
building or on the premises in connection therewith. In the event
that the violation can be removed by Tenant's limiting the number
of employees in the demised premises, Tenant shall so limit the
number of employees immediately and no claim for damages or any
loss may be made against Landlord therefore.
TWENTY-NINTH: - Tenant shall have the use of the partitions FIXTURES
existing in the premises demised herein and of all outer AND PARTI-
equipment, fixtures and appurtenances installed by Landlord prior TIONS IN-
to or during the term hereof. The ownership of all such property STALLED BY
shall at all times be vested in Landlord and Possession thereof LANDLORD
shall revert to Landlord upon the expiration of the lean.
THIRTIETH: - If any vault space is adjacent to the demised VAULTS
premises, the same shall not be or be decreed to be part of the
demised premises or its appurtenances. Landlord may permit Tenant
to use alien vault space gratuitously, but such permission may be
revoked by Landlord at any time on two (2) days' notice. Landlord
shall have the right at any time to cause a wall to be erected
for the purpose of sealing off such vault space from the demised
premises. Said wall my be erected wholly or partly on that
portion of the demised premises which abuts such vault space.
Landlord and its designees shall have the right from time to time
to enter and remain upon the demised premises which abuts such
vault space. Landlord and its designees shall have the right from
time to time to enter and remain upon the demised premises with
men and materials for the purposes of erecting such wall. Tenant
shall not be entitled to any compensation, abatement of rent, or
other claim by reason of any action taken under this paragraph or
by on behalf of Landlord. Any fee or license charge or tax of
municipal authorities for such vault shall be paid by Tenant.
17
THIRTY-FIRST: - Landlord or its agents shall not be liable for LIABILITY OF
any damage to Property of Tenant or of others entrusted to LANDLORD
employees of the building, nor for the loss of or damage to any PROPERTY
property of Tenant by theft or otherwise, Landlord or its agents LOSS DAMAGE
shall not be liable for any injury or damage to persons or
property resulting from fire, explosion, falling ceilings,
falling plaster, steam, gas, electricity, water. rain or snow or
leaks from any part of said building or from the pipes,
appliances or plumbing works or from he roof, street or
subsurface or from any other place or by dampness or by any other
cause whatsoever nature, including but not limited to the making
of repairs and improvements. unless caused by or due to the
negligence of Landlord, his agents, servants or employees; nor
shall Landlord or its agents be liable for any such damage caused
by other tenants or persons in said building or caused by
operations in construction of any private, public or quasi public
work; nor shall Landlord be liable for any latent defect in the
demised premises or in the building of which they form a part.
Tenant shall give immediate notice to Landlord din case of fire
or accidents in the demised premises or in the building or of
defects therein or in any fixtures or equipment.
THIRTY-SECOND: - Tenant shall throughout the term and thereafter INDEMNITY
indemnify Landlord and save it harmless and free from damages,
liabilities, penalties, losses, expenses, causes of action,
claims, suits and judgments, as well as all expenses and
attorneys' fees, arising from injury during said term to person
or property of any nature, and also for any matter or thing
growing out of the occupation of the demised premises or the
streets, sidewalks, or vaults adjacent; thereto occasioned in
whole or part by any act or acts, omission or omissions of
Tenant, its employees, guests, assigns or undertenants.
THIRTY-THIRD: - Neither this lease nor any obligation hereunder on LIABILITY OF
Tenant's part to be performed including, but not limited to, LANDLORD
Tenant's obligation to pay the rents provided for hereunder) SERVICE
shall in any wise be released, discharged, impaired, excused or INERRUPTION
otherwise affected because of Landlord's inability to supply, ACTS BEYOND
furnish or make such services, fixtures, equipment, repairs, CONTROL
additional improvements, alterations and/or decorations, if any,
as Landlord may be required to supply, furnish or make hereunder
or in connection with herewith or because of any delay in
supplying, furnishing or making any of the foregoing, if such
inability or delay directly or indirectly results from or is
caused by or attributable to any cause or thing whatsoever beyond
Landlord's control, including, but not limited to, any law or
ordinance or any governmental 0rder, rule, regulation or
requirement, or any shortages in supplies, materials or labor, or
any acts of God or any labor difficulties, disasters or acts of
public enemies and in any such event Landlord shall be relieved
of any liability to Tenant which it might otherwise have had by
reason of any such requirement. Lessee agrees to look solely to
Lessor's estate and interest in the land and building or the
lease of the building or of the land and building and the demise
premises, for the satisfaction of any right or remedy of Lessee
for the collection of a judgment (or other judicial process)
requiring the payment of money by Lessor, in the vent of any
liability by Lessor, and no other property or assets of Lessor
shall be
18
subject to levy, execution or other enforcement procedure for the
satisfaction of Lessee's remedies under or with respect to this
lease, the relationship of landlord and tenant hereunder, or
Lessee's use and occupancy of the demised premises or any other
liability of Lessor to Lessee (except for negligence.)
THIRTY-FOURTH: - This lease is and shall be subject to SUBORDI-
subordinate at all times to all present or future leases and NATION
subleases of the entire building or the land and entire building
of which the demised premises form a part and to all mortgages
which now affect or may hereafter affect or be made in respect of
such leases and subleases or the real property of which the
demised premises form a part (whether or not such leasees or
mortgages also affect any other or additional real property), and
to all renewals, modifications , consolidations, replacements and
extensions thereof, and to all advances made or hereafter to be
made upon the security thereof. This clause shall be
self-operative and no further instrument in writing to effectuate
such subordination shall be necessary. In confirmation of such
subordination, however, Tenant shall, on demand, promptly
execute, acknowledge and deliver such further instruments or
certificates that Landlord may request. Tenant hereby irrevocably
appoints Landlord the attorney-in-fact of Tenant to execute,
acknowledge and deliver any such instrument or certificate for or
on behalf of Tenant. In the event that any Master Lease or any
other ground or underlying lease is terminated, or any mortgage
foreclosed, this lease shall not terminate or be terminable by
Lessee unless Lessee was specifically named in any termination or
foreclosure judgment or final order. In the event that the Master
Lease or any other ground or underlying lease is terminated as
aforesaid, Lessee agrees to enter into a new lease covering the
within premises, for the remaining term of this lease and
otherwise on the same terms, conditions and rentals as herein
provided, with and at the election of the holder of any superior
lease, or if there is no superior lease in existence, then with
and at the election of the holder of any superior lease, or if
there is no superior lease in existence, then with and at the
election of the holder of the fee title to the premises. If the
current term of the Master Lease shall expire prior to the date
set forth herein for the expiration of this Lease, the term of
this lease shall expire on the date of expiration of the Master
Lease, notwithstanding the later expiration date hereinabove set
forth. If the Master Lease is renewed, then the term of this
lease shall expire as hereinabove set forth. Form time to time,
Lessee, on at least ten (10) days' prior written request by
Lessor, will deliver to Lessor a statement in writing certifying
that this lease is unmodified and in full force and effect (or if
there shall have been modifications, that the same is in full
force and effect as modified and stating the modifications) and
the dates to which the rent and other charges have been paid and
stating whether or not the Lessor is in default in performance of
any covenant, agreement or condition contained in this lease and,
if so, specifying each such default of which Lessee may have
knowledge. This paragraph shall not be deemed modified in whole
or in part by any provision of this lease or any rider thereof
during the term hereof, unless such provisions or rider shall by
its terms expressly so modify it.
THIRTY-FIFTH: - Provided the damage not be caused by the fault or FIRE
neglect of Tenant or its -employees, agents, visitors or
licenses, in the even of damage by fire or other action of the
elements, to the demised premises, not rendering all of them
unfit for
19
occupancy, Landlord shall repair them with reasonable dispatch
after notice of such damage and the rent accrued or accruing;
shall not cease but if the damage be so extensive as to render
all of the demised premises untenable, the rent shall cease until
repaired, provided the damage be not caused by the carelessness
or negligence of Tenant or of the agents or servants of Tenant.
No penalty shall accrue for reasonable delay which may arise by
reason of adjustment of insurance on the part of Landlord and/or
Tenant. No penalty shall accrue for reasonable delay which may
arise by reason of adjustment of insurance on the part of
Landlord and/or Tenant, and for reasonable delay on account of
"labor troubles" or any other cause beyond Landlord's control. If
the demised premises are totally damaged or are rendered wholly
untenable by fire or other cause, and if Landlord shall decide
not to restore or not to rebuild the same, or if the building
shall be so damaged that Landlord shall decide to demolish it or
to rebuild it, or if the cost of restoration of the building of
which the demised premises are a part resulting from the
aforesaid fire or other casualty shall exceed the sum of
$3,000.000, then or in any of such events Landlord within ninety
(90) days after such, fire or other cause give Tenant a notice in
writing of termination, which notice shall be given as provided
in this lease, and thereupon the term of this lease shall expire
by lapse of time upon the third day after such notice is given,
and Tenant shall vacate the demised premises and surrender the
same to Landlord. If Tenant shall not be in default under this
lease then, upon the termination of this lease under the
conditions provided for in the sentence immediately preceding.
Tenant's liability for rent shall cease as of the day following
the casualty. Tenant hereby expressly waives the provisions of
Section 227 of the Real Property Law and agrees that if the
ongoing provisions of this paragraph shall govern and control in
lieu thereof If the damage or destruction be due to the fault or
neglect of Tenant, the debris shall be removed by and at the
expense of Tenant.
THIRTY-SIXTH: - 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. If any part of the land or the
building of which the demised premises or a part shall be so
acquired or condemned, then and in that event the term of this
lease, at the option of the Landlord, shall cease and terminate
on ten (10) days' notice by Landlord to Tenant. In neither event
shall Tenant have any claim for the value of any unexpired term
of said lease.
THIRTY-SEVENTH: - When and to the extent permitted by law, the
names agree that the following Provisions shall apply to this
lease and tenancy, (and that the provisions of 11 U.S.C. ss.
365(b) shall be applied): (a) If at any time prior to the date
herein fixed as the commencement of the term of this lease there
shall be filed against Tenant thereof or if such filing is made
by Tenant in any court pursuant to any statute either of the
United States or of any State a petition in bankruptcy or
insolvency or for reorganization or for the appointment of
receiver or trustee of all or a portion of Tenant's property and
within thirty (30) days thereof Tenant fails to secure a
discharge thereof. or if Tenant makes an assignment for the
benefit of creditors, or petition for or enters into an agreement
this lease shall ipso facto be cancelled and terminated, and in
which event
20
neither Tenant nor any person claiming through or under Tenant or
by virtue of any statute or of an order of any court shall be
entitled to possession of the demised premises and Landlord. In
addition to the other rights and remedies given by (c) hereof and
by virtue of any other provision herein or elsewhere in this
lease contained or by virtue of any statute or rule of law, may
retain as liquidated damages any rent, security, deposit or
monies, received by him from Tenant or others on behalf of Tenant
upon the execution hereof.
(g) If at the date fixed as the commencement of the term CONDEMNATION
of this lease or if at any time during the term hereby demised,
there shall be filed against Tenant thereof or if such filing is
made by Tenant in any court pursuant to any statute of the United
States or any State a petition of bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of
all or a portion or Tenant's property and within thirty (30) days
thereof if Tenant fails to secure a discharge thereof or if
Tenant makes an assignment for the benefit of creditors or
petition for or enter into an arrangement, this lease, at the
option of Landlord, exercised within a reasonable time after
notice of the happening of any one or more of such events, may be
cancelled and terminated, and in which event neither Tenant nor
any person claiming through or under Tenant by virtue of ant
statute or of an order of any court shall be entitled to
possession or to remain in possession of the premises demised,
but shall forthwith quit and surrender the premises, and
Landlord. In addition to the other rights and remedies Landlord
has by virtue of any other provision herein or elsewhere in this
lease contained or by virtue of any statute or rule of law, may
from time to time retain as liquidated damages any rent, security
deposit or monies received by him from Tenant or others on behalf
of Tenant.
(h) It is stipulated and agreed that in the vent of the BANKRUPTCY
termination of this lease pursuant to (a) or (b) hereof, Landlord
shall forthwith, notwithstanding any other provisions of this
lease to the contrary, be entitled to recover from Tenant as and
for liquidated damages in an amount equal to the difference
between the rent reserved hereunder for the unexpired portion of
the term demised and the then 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 re-let by Landlord
for the unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such
re-letting shall be prima facie to be 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 Landlord to prove for and obtain as
liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statue or rule of law in effect at
the time when and governing the proceeding 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.
21
THIRTY-EIGHTH: - Tenant has deposited with Landlord the sum of
$27,000.00 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, Landlord 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 as to which Tenant
is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of
any of the terms, covenants and conditions of this lease,
including but not limited to, any damages or deficiency in the
re-letting of the premises, whether such damage or deficiency
accrued before or after summary proceedings or other re-entry by
Landlord. Tenant shall upon deemed, deposit with Landlord the
full amount so used, in order that Landlord shall have the full
security deposit on hand at all times. In the event that Tenant
shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, including but
not limited to, any damages or deficiency in the re-letting of
the premises, whether such damage or deficiency accrued before or
after summary proceedings or others re-entry by Landlord. Tenant
shall, upon demand, deposit with Landlord the full amount so
used, in order that Landlord shall have the full security deposit
on hand at all times. 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
Landlord. In the event of any transfer or conveyance by Landlord
of its lease to the building of which the demised premises form a
part, hereinafter referred to, Landlord shall have the right to
transfer the security to the transferee or grantee, and Landlord
shall thereupon be released by Tenant from all liability for the
return of such security; and Tenant agrees to look to the new
Landlord solely for the return of said security; and it is agreed
that the provisions hereof shall apply to every transfer or
assignment made of the security to a new Landlord. 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 Landlord not its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
THIRTY-NINTH: - (a) If Tenant defaults in fulfilling any of the SECURITY
covenants of this Lease other than the covenants for the payment
of rent or additional rent, or of any ancillary agreement, or if
the demised premises become vacant or deserted, then, in nay one
or more of such events, upon Landlord serving a written five (5)
days' notice upon Tenant specifying the nature of said default
and upon the expiration of said five (5) 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 such a nature that
the same cannot be completely cured or remedied within said five
(5) days period, and if Tenant shall not have diligently
commenced curing such default within such five (5) day period,
and shall not thereafter with reasonable diligence and in good
faith proceed to remedy or
22
cure such default, then Landlord may serve a written three (3)
day notice of cancellation of this lease upon Tenant, and upon
the expiration of said three (3) days, this lease and the term
thereunder shall end and expire as fully and completely as if the
date of expiration of such three (3) day period were the day
herein definitely fixed for the end and expiration of this lease
and the term thereof, and Tenant shall then quit and surrender
the demised premises to Landlord, but Tenant shall remain liable
as hereinafter provided.
(b) If the notice provided for in (a) hereof shall have
been given, and the term shall expire as aforesaid; or (1) 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 provided; or
(2) 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 or attempted to be taken or occupied by
someone other than Tenant; or (3) if Tenant shall make default
with respect to any other lease between Landlord and Tenant; or
(4) if Tenant shall fail to move into or take possession of the
premises within fifteen (15) days after commencement of the term
of this lease, of which fact Landlord shall be the sole judge;
then and in any of such events Landlord may without notice,
reenter 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 effect and hold the premises as if this
lease had not been made, and Tenant hereby waives the service of
notice of intent to or to institute legal proceedings to that
end. If Tenant shall make default thereunder prior the date of
the commencement of any renewal or extension of this lease,
Landlord may cancel and terminate such renewal or extension
agreement by written notice.
(i) If Tenant is presently in possession of the demised
premises pursuant to a lease in writing heretofore made and if,
before the commencement of the term herein provided the aforesaid
lease shall be terminated or Tenant shall be dispossessed or
shall voluntarily or involuntarily vacate, surrender or remove
from the demised premises, then this lease shall, at the option
of Landlord, be terminated, but Tenant shall nevertheless remain
liable as hereinbefore provided.
FORTIETH: - In case of any such default, re-entry, expiration DEFAULT
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,
together with such expenses as Landlord may incur for legal
expenses, attorney's fees, brokerage, and/or putting the demised
premises in good order, or for preparing the same for re-rental;
(b) Landlord may re-let the premises or any part or parts
thereof, either in the name of Landlord or otherwise, for a term
or terms, which may at Landlord'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;
and/or (c) Tenant or the legal representatives of Tenant shall
also pay Landlord 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
23
amount, if any, of the rents collected on account of the lease or
leases of the demised premises for each month of the period which
would otherwise have constituted the balance of the term of this
lease. The rent received from any re-letting or re-lettings, but
only for the un-expired portion of this lease, shall be applied
first to the payment of Landlord's expenses in resuming
possession and re-letting the premises, which expenses shall
include abut not be limited to attorneys fees, brokerage
commissions, cleaning, repairs, painting and decoration. The
balance, if any, shall be applied in payment of all unpaid rent,
additional rent and other charges due from Tenant hereunder,
irrespective of whether the liability therefor arose prior or
subsequent of the date of the expiration of the term hereof.
Tenant hereby covenants and agrees to pay to Landlord, within a
reasonable time after demand therefor shall be made, the balance,
if any, remaining unpaid. In the vent that any re-letting
hereunder results in Landlord's receiving from Tenant in any
month an amount in excess of the amount due for such month, then
and in that event Tenant shall not be obligated to make any
payment to Landlord for rent due in such month, nor shall
Landlord at any time be obligated to make any refund or apply any
credit to Tenant with respect to such rent, and Tenant shall have
no claim by way of defense to a suit or otherwise that Landlord
has received for any prior month or that nay new tenant has
agreed to pay for any subsequent month a greater amount than that
hereinabove reserved to be paid as rent for that month. The
failure or refusal of Landlord to re-let the premises or any part
or parts thereof shall not releas3 or affect Tenant's liability
for damages. Any security in Landlord's possession not retained
by it as liquidated damages may be applied by it for nay or all
of the aforesaid purposes. Any such liquidated damages shall be
prepaid as additional rent hereunder in monthly installments by
Tenant on the rent day specified in this lease and nay suit
brought to collect the amount of the deficiency for any month
shall not prejudice in any way the rights of Landlord to collect
the deficiency for any subsequent month by a similar proceeding.
Landlord at Landlord's option, may make such alterations,
repairs, replacements and/or decorations in the demised premises
as Landlord in Landlord's sole judgment considers advisable and
necessary for the purposes of re-letting the demised premises;
and the making of such alterations and/or decorations shall not
operate or be construed to release Tenant from liability
hereunder as aforesaid. Landlord 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. In the vent of a
breach or threatened breach by Tenant of any of the covenants or
provisions hereof, Landlord shall have the right of injunction
and the right to invoke any remedy allowed at law or inequity as
if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease or any particular
remedy, shall not preclude Landlord from any other remedy, in law
or in equity.
FORTY-FIRST: - Notwithstanding anything elsewhere contained in REMEDIES OF
this lease, if by reason of any present or future cause or thing LANDLORD
whatsoever (including, without limitation, by reason of any
statute, ordinance or judgment, decree, court order to
governmental rule or regulation). Tenant will not or shall not be
required to pay to Landlord the full amount of rent and
additional rent reserved hereunder, then Landlord, at its
unrestricted option, may give Tenant not less than five (5) days
notice of intention to end this lease
24
and the term hereof and thereupon on the date specified in said
notice, this lease and the term hereof shall expire as fully and
completely as if that date were the date, herein originally fixed
for the expiration of this lease and the term hereof.
FORTY-SECOND: - It is mutually agreed by and between Landlord 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 on nay
matters whatsoever arising out of or in any way connected with
this lease, the relationship of landlord and tenants. Tenant's
use or occupancy of said premises, except for personal injury or
property damage, or involving the right to any statutory relief
or remedy. Tenant will not interpose any counterclaim of any
nature in any summary proceeding. The provisions of this
paragraph shall be binding upon the respective heirs,
distributees, executors, administrators, successors and assigns
of the parties hereto and all subtenants hereunder.
FORTY-THIRD: - Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in
the event of Tenant being evicted or dispossessed for any cause,
or in the event of Landlord obtaining possession of demised
premises, by reason of the violation by Tenant of any of the
covenants and conditions of this lease, or otherwise.
FORTY-FOURTH:- (A) If there by any agreement between Landlord and
Tenant providing for the cancellation of this lease upon certain
provisions or contingencies, and/or an agreement for the renewal
hereof at the expiration of the term first above mentioned, the
right to such renewal or the execution of a renewal agreement
between Landlord and Tenant prior to the expiration of such first
mentioned term shall not be considered an extension thereof or a
vested right in Tenant to such further term, so as to prevent
Landlord from canceling this lease and any such extension thereof
during the remainder of the original term hereby granted; such
privilege, if and when so exercised by Landlord, shall cancel and
terminate this lease and any such renewal or extension previously
entered into between said Landlord and Tenant or the right of
Tenant to any such renewal or extension; any right herein
contained on the part of Landlord to cancel this lease shall
continue during any extension or renewal thereof; any option on
the part of Tenant herein contained for an extension or renewal
hereof shall not bee deemed to given Tenant any option for a
further extension beyond the first renewal or extended term.
(j) No act or thing done by Landlord or Landlord's
agents during the term hereby demised shall constitute an actual
or constructive eviction by Landlord, nor shall be deemed an
acceptance of a surrender of said demised premises, and no
agreement to accept such surrender shall be valid unless in
writing signed by Landlord. In the event that any payment herein
provided for by Tenant to Landlord shall become overdue for a
period in excess of ten (10) days, then at Landlord's option a
"late charge" for such period and for each additional period of
twenty (20) days or any part thereof shall become immediately due
and owing to Landlord, as additional rent by reason of failure of
Tenant to make prompt payment, at the following rates; for
individual and partnership tenants, said late charge shall be
computed at the maximum legal rate of interest; for corporate or
governmental entity tenants the late charge shall be computed at
two percent per month unless there is an applicable maximum legal
rate of interest which then shall be used. No employee of
Landlord or of Landlord's agents shall have any power to accept
the keys of said premises prior to the termination of the lease.
The delivery of keys to any employee of Landlord or of Landlord's
agents shall not operate as a termination of the lease or a
surrender of the premises . In the vent of Tenant at any time
desiring to have Landlord sublet the premises for Tenant's
account, Landlord or Landlord's agents are authorized to receive
said keys for such purposes without releasing Tenant from any of
the obligations under this lease, and Tenant hereby relieves
Landlord of any liability of loss of or damage to any of Tenant's
effects in connection with such subletting.
(k) The failure of Landlord to seek redress for violation COURT
of, or to insist upon the strict performance of any covenant or ORDER
condition of this lease, or any of the Rules and Regulations set RELATING TO
forth or hereafter adopted by Landlord, shall not prevent a RENT
subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the
breach of any covenant of this lease shall not be deemed a waiver
of such breach.
(l) The failure of Landlord to enforce any of the Rules
and Regulations set forth or hereafter adopted, against Tenant
and/or any other tenant in the building shall not be deemed a
waiver of any such Rules and Regulations. No provision of this
lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing signed by Landlord.
(m) No payment by Tenant or receipt by Landlord of a WAIVER OF
lesser amount than the monthly rent herein stipulated shall be TRIAL
deemed to be other than on account of the earliest stipulated BYJURY
rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this lease
provided.
FORTY-FIFTH: - Tenant covenants that Tenant will not, without the WAIVER OF
consent of Landlord first obtained in each case, make or grant REDEMPTION
any license in respect of the demised premises or any part
thereof, or in respect of the use thereof, and will not permit
any such license to be made or granted.
FORTY-SIXTH: - Landlord shall replace, at the expense of Tenant, NO WAIVER
any and plate and other glass damaged or broker from any cause
whatsoever in and about the demised premises. Landlord may
insure, and keep insured, at Tenant's expense, all plate and
other glass in the demised premises for and In the name of
Landlord. bills for the premiums therefor shall be rendered by
Landlord to tenant at such times as Landlord
26
may elect, and shall be due form, and payable by tenant when
rendered, and the amount thereof shall be deemed to be and be
paid as additional rent.
FORTY-SEVENTH: - If an excavation shall be made upon land
adjacent to the demised premises, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to
cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised
premises form a part from injury or damages and to support the
same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of rent.
FORTY-EIGHTH: - Except as otherwise in this lease provided, a
xxxx, statement, notice or communication which Landlord 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 a 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
Landlord must be served by registered or certified mail addressed
to Landlord at the address first hereinabove given or at such
other address as Landlord shall designate by written notice.
FORTY-NINTH: - If and so long as Tenant pays the rent and
additional rent reserved hereby and performs and observes the
covenants and provisions hereof, Tenant shall quietly enjoy the
demised premises, subject, however, to the terms, conditions,
exceptions and reservations of this lease, and to the ground,
underlying and overriding leases and mortgages hereinbefore
mentioned.
FIFTIETH: - Upon the expiration or other termination of the term
of this lease, Tenant shall quit and surrender to Landlord the
demised premises, broom clean, in good order and condition,
ordinary wear excepted. Lessee acknowledges that possession of
the demised premises must be surrendered to the Lessor at the
expiration or sooner termination of the term of this Lease.
Lessee agrees it shall indemnify and save Lessor harmless against
costs, claims, loss or liability resulting from delay by Lessee
in so surrendering the demised premises, including, without
limitation, any claims made by any succeeding tenant, founded on
such delay. The parties recognize and agree that the damage to
Lessor resulting from any failure by Lessee timely to surrender
possession of the demised premises as aforesaid will be extremely
substantial, will exceed the amount of monthly rent theretofore
payable hereunder, and will be impossible of accurate
measurement. Lessee therefore agrees that if possession of the
demised premises is not surrendered to Lessor within seven (7)
days after the date of the expiration or termination of the term
of this Lease, then Lessee agrees to pay Lessor as liquidated
damages for each month and for each portion of any month during
which Lessee holds over in the premises after expiration or
termination of the term of this Lease, a sum
27
equal to three times the average rent and additional rent which
was payable per month under this Lease during the last six months
of the term thereof. The aforesaid provisions of this article
shall survive the expiration or sooner termination of the term of
this Lease. If the last day of the term of this lease or any
renewal thereof falls on Sunday, this lease shall expire on the
business day immediately preceding.
FIFTY-FIRST: - If Landlord shall be unable to give possession of LICENSE
the demised premises on the date of the commencement of the term
hereof for any reason, Landlord shall not be subject to any
liability. Under such circumstances, the rent reserved and
covenanted to be paid herein shall not commence until the
possession of demised premises is given or the premises are
available for occupancy by Tenant, and no such failure to give
possession on the date of commencement of the term shall in any
wise affect the validity of this lease or the obligations of
Tenant hereunder, nor shall same be construed in any wise to
extend the term of this lease. If Landlord is unable to give
possession of the demised premises on the date of the
commencement of the term hereof by reason of the holding over or
retention of possession of any tenant, tenants or occupants or
for any other reason, or if repairs, improvements or decorations
of the demised premises or of the building of which said premises
forma part, are not completed, no abatement or diminution of the
rent to be paid hereunder shall be allowed to Tenant nor shall
the validity of the lease be impaired under such circumstances.
If permission is given to Tenant to enter into the possession of
the demised premises or to occupy premises other than the demised
premises prior to the date specified as the commencement of the
term of this lease. Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants,
conditions and provisions of this lease, except as to the
covenant to pay rent. In either case rent shall commence on the
case specified in this lease.
FIFTY-SECOND: - Landlord or Landlord's agents have made no GLASS AND
representations or promises with respect to the said building or GLASS
demised premises except as herein expressly set forth. The taking INSURANCE
possession of the demised premises by Tenant shall be conclusive
evidence, as against Tenant, that Tenant accepts same " as is"
and that 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.
FIFTY-THIRD: - In the event the fixed annual rent or additional ADJACENT
rent or any part thereof provided to be paid by Lessee under the EXCAVATION
provisions of this lease during the demised term shall become - SHORING
uncollectible or shall be reduced or required to be reduced or
refunded by virtue of any Federal, Sate, County or City law,
order or regulation, or by any direction of a public officer or
body pursuant to law, or the orders, rules, code, or regulations
of any organization or entity formed pursuant to law, whether
such organization or entity be public or private, then Lessor, at
its option, may at any time thereafter terminate this lease, by
not less than thirty (30 days' written notice to Lessee, on a
date set forth in said notice, in which event this lease and the
term hereof shall
28
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 the demised term. Lessor shall not have the right
so to terminate this Lease if Lessee within such period of thirty
(30) days shall in writing lawfully agree that the rentals herein
reserved are reasonable rentals and agree t o continue to pay
said rentals and if such agreement by Lessee shall be legally
enforceable by Lessor.
FIFTY-FOURTH: - The covenants, conditions and agreements BILLS AND
contained in this lease shall bind and inure to the benefit of NOTICES
Landlord and Tenant and their respective heirs, distributees,
executors, administrators, successors, and, except as otherwise
provided in this lease, their assigns.
FIFTY-FIFTH: - Except as may be otherwise contained in a written QUIET
instrument or instruments duly executed and delivered by and ENJOYMENT
between the parties hereto, this lease contains the entire
agreement and understanding of the parties with respect to the
demised premises and the respective rights and duties of the
parties in relation thereto and in relation to each other. There
are no oral understandings or agreements between the parties in
relation thereto and in relation to each other. There are no oral
understandings or agreements between the parties of any kind.
Landlord has made no representations or warranties to Tenant of
any kind. All oral representations, warranties and promises prior
to or contemporaneous with this written lease (if any be claimed)
are and shall be deemed merged into this lease. This lease cannot
be changed or supplemented orally. All promises and agreements
made by or between the parties subsequent to the execution and
delivery of this lease shall be and be deemed to be null, void
and unenforceable unless contained in a writing duly executed and
delivered by and between the parties hereto, whether or not the
same relate in any way to this lease or any manner covered
hereby.
FIFTY-SIXTH: - (a) The term "Landlord" as used in this lease QUIT AND
means only the owner or the mortgagee in possession for the time SURRENDER
being, of the land and building (or the owner of a lease of the
entire building or of the land and entire building) of which the
demised premises form a part so that in the event of any sale or
sales of said land and entire building or of any transfer or
conveyance of said lease or in the event of a lease of said
entire building or of the land and entire building, the said
Landlord shall be and hereby is entirely freed and relieved of
all liability for the performance of all covenants and
obligations on the part of Landlord to be performed hereunder,
and it shall be deemed and considered without further agreement
between the parties or other successors in interest or between
the parties and the purchaser at any such sale or any transferee
or mortgagee or any lessee of the entire building or of the land
and entire building that he purchaser, lessee, transferee or
grantee has assumed and agreed to carry out any and all covenants
and obligations of Landlord hereunder. Tenant acknowledges that
it has been informed and understands that Landlord is a lessee of
the land and entire building o which the demise shall be deemed
to include a sublease thereof, and the term "lessee of the entire
building or of the land and entire building" shall be deemed to
include a subleassee thereof.
29
(b) The words "re-entry" as used in this lease are not
restricted to their technical legal meaning.
(c) The term "business days" as used in this lease shall
exclude Saturdays (except such portion thereof as is covered by
the insertion of specific hours herein). Sundays and all days
observed by the State or Federal Government as legal holidays.
(d) From time to time, Tenant, on at least ten (10) FAILURE TO
days' prior written request by Landlord, will deliver to Landlord GIVE
a statement in writing certifying that this lease is unmodified POSSESSION
and in full force and effect (or if there shall have been
modifications, that the same is in full force and effect as
modified and stating the modifications) and the dates to which
the rent and other charges have been paid and stating whether or
not Landlord is in default in performance of any covenant,
agreement or condition contained in this lease and if so,
specifying each such default of which Tenant may have knowledge.
FIFTY-SEVENTH: - The fixed annual rent reserved in this lease and COST OF
payable hereunder shall be adjusted, as of the times and in the LIVING
manner set forth in this Article: ADJUSTMENTS
(a) DEFINITIONS: For the purposes of this Article, the
following definitions shall apply:
(i) The term "Base Year" shall mean the full calendar year 2000.*
(ii) The term "Price Index" shall mean the "Consumer
Price Index" published by the Bureau of Labor Statistics of the
U.S. Department of Labor, All Items, New York, N.Y. -
Northeastern, N.J., all urban consumers (presently denominated
"CPI-U"), or a successor or substitute index appropriately
adjusted.
(iii) The term "Price Index for the Base Year" shall
mean the average of the monthly All Items Price Indexes for each
of the 12 months of the Base Year.
(b) Effective as of each January and July subsequent to
the Base Year, there shall be made a cost of living adjustment of
the fixed annual rental rate payable hereunder. The July
adjustment shall be based on the percentage difference between
the Price Index for the preceding month of June and the Price
Index for the Base Year. The January adjustment shall be based on
such percentage difference between the Price Index for the
preceding month of December and the Price Index for the Base
Year.
-----------------
* 1st Escalation shall be due 7/2001.
30
(i) In the event the Price Index for June in any
calendar year during the term of this lease reflects an increase
over the Price Index for the Base Year, then the fixed annual
rent herein provided to be paid as of the July 1st following such
month of June (unchanged by any adjustments under this Article)
shall be multiplied by the percentage difference between the
Price Index for June and the Price Index for the Base Year, and
the resulting sum shall be added to such fixed annual rent,
effective as of such July 1st. Said adjusted fixed annual rent
shall thereafter be payable hereunder, in equal monthly
installments, until it is readjusted pursuant to the terms of
this lease.
(ii) In the event the Price Index for December in any
calendar year during the term of this lease reflects an increase
over the Price Index for the Base Year, then the fixed annual
rent herein provided to be paid as of the July 1st following such
month of June (unchanged by any adjustments under this Article)
shall be multiplied by the percentage difference between the
Price Index for December and the Price Index for the Base Year,
and the resulting sum shall be added to such fixed annual rent,
effective as of such January 1st. Said adjusted fixed annual rent
shall thereafter be payable hereunder, in equal monthly
installments, until it is readjusted pursuant to the terms of
this lease.
The following illustrates the intentions of the parties
hereto as to the computation of the aforementioned cost of living
adjustment in the annual rent payable hereunder.
Assuming the said fixed annual rent is $10,000, that the
Price Index for the Base Year was 102.0 and that the Price Index
for the month of June in a calendar year following the Base Year
was 105.0, then the percentage increase thus reflected, i.e.,
2.941% (3.01/102.0) would be multiplied by $10,000, and said
fixed annual rent would be increased by $294.10 effective as of
July 1st of said calendar year.
In the event that the Price Index ceases to use
1982-84=100 as the basis of calculation, or if a substantial
change is made in the terms or number of items contained in the
Price Index, then the Price Index shall be adjusted to the figure
that would have been arrived at had the manner of computing the
Price Index in effect at the date of this lease not been altered.
In the event such Price Index (or a successor or substitute
index) is not available, a reliable governmental or other
non-partisan publication evaluating the information theretofore
used in determining the Price Index shall be used.
(c) Landlord will cause statements of the cost of living
adjustments provide for in subdivision (b) to be prepared in
reasonable detail and delivered to Tenant.
(d) In no event shall the fixed annual rent originally
provided to be paid under this lease (exclusive of the
adjustments under this Article) be reduced by virtue of this
Article.
31
(e) Any delay or failure of Landlord, beyond July or
January of any year, computing or billing for the rent
adjustments hereinabove provided, shall not constitute a waiver
of or in any way impair the continuing obligation of Tenant to
pay such rent adjustments hereunder.
(f) Notwithstanding any expiration or termination of
this lease prior to the lease expiration date (except in the case
of a cancellation by mutual agreement) Tenant's obligation to pay
rent as adjusted under this Article shall continue and shall
cover all periods up to the lease expiration date, and shall
survive any expiration or termination of this lease.
FIFTY-EIGHTH: - Tenant shall pay to Landlord, as additional rent, TAX
tax escalation in accordance with this Article: ESCALATION
(a) For purposes of this lease the rentable square foot
area of the presently demised premises shall be deemed to be
4,192 square feet.
(b) Definitions: For the purpose of this Article, the
following definitions shall apply:
(i) The term "base tax year" as hereinafter set forth
for the determination of real estate tax escalation, shall mean
the New York City real estate tax year commencing July 1,
2000/01.
(ii) The term "The Percentage", for the purposes of
computing tax escalation, shall mean .55 percent (0.55%). The
Percentage has been computed on the basis of a fraction, the
numerator of which is the rentable square-foot area of the
demised premises and the denominator of which is the total
rentable square foot area of the office and commercial space in
the building project. The parties acknowledge and agree that the
total rentable square foot area of the office and commercial
space in the building project shall be deemed to be 764,319 sq.
ft.
(iii) The term "the building project" shall mean the
aggregate combined parcel of land on a portion of which are the
improvements of which the demised premises form a part, with all
the improvements thereon, said improvements being a part of the
block and lot for tax purposes which are applicable to the
aforesaid land.
(iv) The term "comparative year" shall mean the twelve
(12) months following the base tax year, and each subsequent
Period of twelve (12) months (or such other Period of twelve (12)
months occurring during the term of this lease as hereafter may
be duly adopted as the tax year for real estate tax purposes by
the City of New York).
32
(v) The term "real estate taxes" shall mean the total of
all taxes and special or other assessments levied, assessed or
imposed at any time by any governmental authority upon or against
the building project, and also any tax or assessments levied,
assessed or imposed at any time by an governmental authority in
connection with the receipt of income or rents from said building
project to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes or assessments, or
additions or increases thereof, upon or against said building
project. If, due to a future change in the method of taxation or
in the taxing authority, or for any other reason, a franchise,
income, transit, profit or other tax or governmental imposition,
however designated, shall be levied against Landlord in
substitution in whole or in part for the real estate taxes, or in
lieu of additions to or increases of said real estate taxes, then
such franchise, income, transit, profit or other tax or
governmental imposition shall be deemed to be included within the
definition of "real estate taxes" for the purposes hereof. As to
special assessments which are payable over a period of time
extending beyond the term of this lease, only a pro rata portion
thereof covering the portion of the term of this lease unexpired
at the time of the imposition of such assessment, shall be
included in "real estate taxes". If by law, any assessment may be
pain in installments, then, for the purposes hereof (a) such
assessment shall be deemed to have been payable in the maximum
number of installments permitted by law and (b) there shall be
included in real estate taxes, for each comparative year in which
such installments may be paid, the installments of such
assessment so becoming payable during such comparative year,
together with interest payable during such comparative year.
(vi) Where more than one assessment is imposed by the
City of New York for any tax year, whether denominated an "actual
assessment" or a "transitional assessment" or otherwise, then the
phrases herein "assessed value" and "assessments" shall mean
whichever of the actual, transitional or other assessment is
designated by the City of New York as the taxable assessment for
that tax year.
(vii) The phrase "real estate taxes payable during the
base tax year" shall mean the amount obtained by multiplying
Fifty-Five One Hundredth of 1%, the assessed value of the land
and buildings of the building project for the base tax year by
the tax rate for the base tax year for each $100 of such assessed
value.
(C) 1. In the event that the real estate taxes payable
for any comparative year shall exceed the amount of the real
estate taxes payable during the base tax year, Tenant shall pay
to Landlord, as additional rent for such comparative year, an
amount equal to The Percentage of the excess. Before or after the
start of each comparative year, Landlord shall furnish to Tenant
a statement of the real estate taxes payable for such comparative
year, and a statement of the real estate taxes payable during the
base tax year. If the real estate taxes payable for such
comparative year exceed the real estate taxes payable during the
base tax year, additional rent for such comparative year, in an
33
amount equal to The Percentage of the excess, shall be due from
Tenant to Landlord, and such additional rent shall be payable by
Tenant to Landlord within ten (10) days after receipt of the
aforesaid statement. The benefit of any discount for any earlier
payment or prepayment of real estate taxes shall accrue solely to
the benefit of Landlord, and such discount shall not be
subtracted from the real estate taxes payable for any comparative
year.
Additionally, Tenant shall pay to Landlord, on demand, a
sum equal to The Percentage of any business improvement district
assessment payable by the building project.
2. Should the real estate taxes payable during the base
tax year be reduced by final determination of legal proceedings,
settlement or otherwise, then, the real estate taxes payable
during the base tax year shall be correspondingly revised, the
additional rent theretofore paid or payable hereunder for all
comparative years shall be recomputed on the basis of such
reduction, and Tenant shall pay to Landlord as additional rent,
within ten (10) days after being billed therefor, any deficiency
between the amount of such additional rent as theretofore
computed and the amount thereof due as the result of such
recomputations. Should the real estate taxes payable during the
base tax year be increased by such final determination of legal
proceedings, settlement or otherwise, then appropriate
recomputation and adjustment also shall be made.
3. If after Tenant shall have made a payment of
additional rent under this subdivision (c), Landlord shall
receive a refund of any portion of the real estate taxes payable
for any comparative year after the base tax year on which such
payment of additional rent shall have been based, as a result of
a reduction of such real estate taxes by final determination of
legal proceedings, settlement or otherwise, Landlord shall within
ten (10) days after receiving the refund pay to Tenant The
Percentage of the refund less The Percentage of expenses
(including attorneys' and appraisers' fees) incurred by Landlord
in connection with any such application or proceeding. If prior
to the payment of taxes for any comparative year, Landlord shall
have obtained a reduction of that comparative year's assessed
valuation of the building project, and therefore of said taxes,
then the term "real estate taxes" for that comparative year shall
be deemed to include the amount of Landlord's expenses in
obtaining such reduction in assessed valuation, including
attorneys' and appraisers' fees.
4. The statements of the real estate taxes to be
furnished by Landlord as provided above shall be certified by
Landlord and shall constitute a final determination as between
Landlord and Tenant of the real estate taxes for the Periods
represented thereby, unless Tenant within thirty (30) days after
they are furnished shall give a written notice to Landlord that
it disputes their accuracy or their appropriateness, which notice
shall specify the particular respects in which the statement is
inaccurate or inappropriate. If Tenant shall so dispute said
statement then, pending the resolution of such dispute, Tenant
shall pay the additional rent to Landlord in accordance with the
statement furnished by Landlord.
34
5. In no event shall the fixed annual rent under this
lease (exclusive of the additional rents under this Article) be
reduced by virtue of this Article.
6. If the commencement date of the term of this lease is
not the first day of the first comparative year, then the
additional rent due hereunder for such first comparative year
shall be a proportionate share of said additional rent for the
entire comparative year, said proportionate share to be based
upon the length of time that the lease term will be in existence
during such first comparative year. Upon the date of any
expiration or termination of this lease except termination
because of Tenant's default) whether the same be the date
hereinabove set forth for the expiration of the term or any prior
or subsequent date, a proportionate share of said additional rent
for the comparative year during which such expiration or
termination occurs shall immediately become due and payable by
Tenant to Landlord, if it was not theretofore already billed and
paid. The said proportionate share shall be based upon the length
of time that this lease shall have been in existence during such
comparative year. Landlord shall promptly cause statements of
said additional rent for that comparative year to be prepared and
furnished to Tenant. Landlord and Tenant shall thereupon make
appropriate adjustments of amounts then owing.
7. Landlord's and Tenant's obligations to make the
adjustments referred to in subdivision (6) above shall survive
any expiration or termination of this lease.
8. Any delay or failure of Landlord in billing any tax
escalation hereinabove provided shall not constitute a waiver of
or in any way impair the continuing obligation of Tenant to pay
such tax escalation hereunder.
FIFTY-NINTH: - (A). Tenant acknowledges that its continued
occupancy of the demised premises and the regular conduct of its
business therein, are of utmost importance to the Landlord in the
renewal of other leases in the building, in the renting of vacant
space in the building, in the providing of electricity, air
conditioning, steam and other services to the tenants in the
building, and in the maintenance of the character and quality of
the tenants in the building. Tenant therefore covenants and
agrees that it will occupy the entire demised premises and will
conduct its business therein in the regular and usual manner,
throughout the term of this lease. Tenant acknowledges that
Landlord is executing this lease in reliance upon these covenants
and that these covenants are a material element of consideration
inducing Landlord to execute this lease. Tenant further agrees
that if it vacates the demised premises or fails to so conduct
its business therein at any time during the term of this lease,
without the prior written consent of the Landlord, then all rent
and additional rent reserved in this lease, without the prior
written consent of the Landlord, then all rent and additional
rent reserved in this lease from the date of such breach to the
expiration date of this lease shall become immediately due and
payable to Landlord.
35
(B). The parties recognize and agree that the damage to
Landlord resulting from any breach of the covenants in
subdivision (A) hereof will be extremely substantial, will be far
greater than the rent payable for the balance of the term of this
lease, and will be impossible of accurate measurement. The
parties therefore agree that in the event of a breach or
threatened breach of the said covenants, in addition to all of
Landlord's other rights and remedies, at law or in equity or
otherwise, Landlord shall have the right of injunction to
preserve Tenant's occupancy and use. The words "become vacant or
deserted" as used elsewhere in this lease shall include Tenant's
failure to occupy or use as by this Article required.
(C). If Tenant breaches either of the covenants in
subdivision (A) above, and this lease be terminated because of
such default, then, in addition to Landlord's rights of re-entry,
restoration, preparation for and rerental, and anything elsewhere
in this lease to the contrary notwithstanding, Landlord shall
retain its right to judgment on and collection of Tenant's
aforesaid obligation to make a single payment to Landlord of a
sum equal to the total of all rent and additional rent reserved
for the remainder of the original term of this lease, subject to
future credit or repayment to Tenant in the event of any
rerenting of the premises by Landlord, after first deducting from
rerental income all expenses incurred by Landlord in reducing to
judgment or otherwise collecting Tenant's aforesaid obligation,
and in obtaining possession of, restoring, preparing for and
re-letting the premises. In no event shall Tenant be entitled to
a credit or repayment for rerental income which exceeds the sums
payable by Tenant hereunder or which covers a period after the
original term of this lease.
(D). If any provision of this Article of this lease or
the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this
Article, or the application of such provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each provision
of this Article and of this lease shall be valid and be enforced
to the fullest extent permitted by law.
SIXTIETH: - The Landlord shall be under no obligation to provide
access between the "A" Wing and the "B" Wing on the floor of the
premises demised herein, and any passageways which may now or
hereafter exist between said wings may be discontinued at any
time at the discretion of the Landlord.
SIXTY-FIRST: - The captions are inserted only as a matter of CAPTIONS
convenience and for reference and in no way define, limit or
describe the scope of this lease nor the intent of any provision
thereof.
SIXTY-SECOND: - Tenant and Tenant's servants, employees, agents, RULES AND
visitors, and licensees shall observe faithfully, and comply REGULATIONS
strictly with, the Rules and
36
Regulations and such other and further reasonable Rules and
Regulations as Landlord or Landlord's agents may from time to
time adopt. Notice of any additional rules or regulations shall
be given in such manner as Landlord may elect. In case Tenant
disputes the reasonableness of any additional Rule or Regulation
hereafter made or adopted by Landlord or Landlord's agents, the
parties hereto agree to submit the question of the reasonableness
of such Rule or Regulation for decision to the or to such
impartial person or persons as he may designate, 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 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 Landlord within ten (10) days after the adoption of
any such additional Rule or Regulation. Nothing in this lease
contained shall be construed to impose upon Landlord 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 Landlord shall not be liable to Tenant for violation
of the same by any other tenant, its servants, employees, agents,
visitors or licensees.
The use in the demised premises of auxiliary heating
devices, such as portable electric heaters, heat lamps or other
devices whose principal function at the time of operation is to
produce space heating, is prohibited.
SIXTY-THIRD: - It is understood and agreed that this lease is
submitted to Tenant on the understanding that it shall not be
considered on offer and shall not bind Landlord in any way until
(i) Tenant has duly executed and delivered duplicate originals to
Landlord and (ii) Landlord has executed and delivered one of said
originals to Tenant.
SIXTY-FOURTH: - Tenant expressly acknowledges that it has
inspected the demised premises and is fully familiar with the
physical condition thereof. Tenant agrees to accept the demised
premises in its "AS IS" condition. Tenant acknowledges that
Landlord shall have no obligation to do any work in and to the
demised premises in order to make them suitable and ready for
occupancy and use by Tenant.
SIXTY-FIFTH: - With respect to the security deposit by Tenant
hereunder, Landlord agrees that same will be held in an interest
bearing account and interest thereon will be paid to Tenant at
least annually, less 1% to be retained by Landlord for
administration.
SIXTY-SIXTH: - Anything contained herein to the contrary
notwithstanding, all deliveries to Tenant and shipments by Tenant
must be made directly to and from Tenant's premises utilizing the
freight elevators via freight elevator lobby. Under no
circumstances may deliveries and/or shipments be made through the
public corridors. In addition, if the Tenant's premises are to be
used substantially for storage of Tenant's
37
merchandise or samples, the entrance to Tenant's premises shall
be at freight elevator lobby and not otherwise. In any event, the
interior of Tenant's premises shall be so designed and maintained
by Tenant that said premises, when viewed from the public
corridors, present an appearance consistent with the use of said
premises as offices and showroom and not otherwise.
In lieu of Landlord's work, Tenant shall receive rent
credits for up to $25,000.00 after submission of paid invoices to
justify alteration work done to premises.
Work Will Include: Paint, Carpet, Minor Construction,
----------------- Minor Electrical, Clean-Up, Space
Rehabilitations
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
0000 XXXXXXXX ASSOCIATES
HELMSLEY-SPEAR, INC., AGENT
By: /s/ XXXXXX XXXXXXXXX
------------------------------
Chief Operating Officer
IAM GROUP, LTD.
By: /s/ XXXX XXXXXXXX, PRESIDENT
------------------------------
PLEASE PRINT:
SIGNATORY'S NAME: XXXX XXXXXXXX
HOME ADDRESS: 00 XXXXXX XXXXXX, XXXX XXXXX, XX 00000
HOME PHONE NO. 000-000-0000
38
GUARANTY
For Value Received, and in consideration for, and an
inducement to Landlord making the foregoing lease with Tenant, the undersigned
guarantees to Landlord, its successors and assigns, the full performance and
observance of all the covenants, conditions and agreements, including the "Rules
and Regulations", therein provided to be performed and observed by Tenant,
without requiring any notice or proof of nonpayment, nonperformance, or
nonobservance, and without demand, to charge the undersigned therefor, all or
which the undersigned hereby expressly waives.
The undersigned further covenants and agrees that the validity of this agreement
and its obligations hereunder shall in no wise be terminated, affected or
impaired by reason of the assertion by Landlord against Tenant of any of the
rights or remedies reserved to Landlord pursuant to the provisions of the within
lease, that this guaranty shall remain and continue in full force and effect as
to any renewal, modification or extension of the within lease.
As a further inducement to Landlord to make the within lease and in
consideration thereof, Landlord and the undersigned covenant and agree that in
any action or proceeding or counterclaim brought by either against the other on
any matters whatsoever arising out of, under, or in any way connected with said
lease or this Guaranty, or by virtue of the terms thereof, Landlord and the
undersigned shall and do hereby waive trial by jury.
Dated: New York City _________________.
__________________________________
__________________________________
Witness
__________________________________
ADDRESS
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
ON THE DAY OF ____________, 19 , BEFORE ME PERSON CAME TO ME KNOWN AND KNOWN TO
ME TO BE THE INDIVIDUAL DESCRIBED IN, AND WHO EXECUTED THE FOREGOING GUARANTY
AND ACKNOWLEDGEMENT TO ME THAT HE EXECUTED THE SAME.
___________________________________________________
NOTARY PUBLIC
39
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than ingress and egress to and from the
demised premises, and if said premises are situate on the ground floor of the
building the Tenant thereof shall further. at said Tenant's own expense, keep
the sidewalks and curb directly in front of said premises clean and free from
ice, snow. etc,
2. The freight and not the passenger elevators shall be used by the
working hands or Tenant and persons calling for and delivering goods to and from
the demised premises'
3. No awnings or other projections shall be attached to the outside
wa1k of the building without the prior written consent of Landlord. No curtains,
blinds, shades or screens shall be attached to or hung in, or used in connection
with, any window or door of the demised premises without the prior written
consent of the Landlord. Such awnings, projections, curtains, blinds, shades,
screens or other fixtures must be of a quality, type. design and color and
attached in the manner approved by Landlord.
4. No sign, advertisement, notice or other lettering shall be
exhibited. inscribed, painted or affixed by any Tenant on any part of the
outside or inside of the demised premises or building without the prior written
consent of Landlord. Interior signs on doors shall be inscribed, painted for
Tenant by Landlord at the expense of such Tenant, and shall be of a size, color
and style acceptable to Landlord. Tenant names in the lease shall be entitled to
appear on the Directory Board or Tablet. Additional names may be added in
Landlord's sole discretion under such terms and conditions as he may approve.
5. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
building shall not be covered by any Tenant, nor shall any bottles, parcels, or
other articles to be placed on the window xxxxx.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish. rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by Tenant who,
or whose servants, employees, agents, visitors or licensees shall have caused
the same.
7. 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 Landlord, and as Landlord may direct. No linoleum or other
floor covering shall be laid in direct contact with the floor of the demised
premises, but if any such covering is required by Tenant, an interlining or
builder's deadening felt shall first be affixed to the floor with lime or other
water soluble material. the use of cement or other adhesive non-soluble in water
is expressly prohibited.
40
8. No Tenant shall make. or permit to be made any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use or
any instrument, radio, talking machine, musical noise, whistling, singing or in
any other way.
9. No Tenant nor any of Tenant's servants, employees, agents, visitors
or licensees shall at any time bring or keep upon the demised premises any
inflammable, combustible or explosive fluid, chemical and substance, or cause or
permit any unusual or objectionable odors to be produced upon or permeate from
the demised premises. No animals or birds shall be kept by Tenant in or about
the building.
10. Landlord reserves the right to inspect all freight to be brought
into the building and to exclude from the building all freight which violates
any of these Rules and Regulations or the lease of which these Rules and
Regulations are a part.
11. Landlord shall have the right to prohibit any advertising by any
Tenant which, in its opinion, tends to impair the reputation of the building or
its desirability and, upon written notice from Landlord, Tenant shall refrain
from or discontinue such advertising.
12. Canvassing, soliciting and peddling in the building is prohibited
and each Tenant shall cooperate to prevent the same.
13. There shall not be used in any space. or in the public halls of any
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 side guards.
14. No Tenant shall purchase spring water, ice, towels, or other like
service from any company or persons not approved by Landlord.
15. The use in the demised premises of auxiliary heating devices, such
as portable electric heaters, heat lamps or other devices whose principal
function at the time of operation is to produce space heating, is prohibited.
16. Tenant has the right to install XXXX, TI and T3 computer lines and
fiber optics if and when available at Tenant's sole expense.
41
ASSIGNMENT AND SUBLETTING
A. Tenant, for itself, its heirs, distributees, executors, administrators, legal
representatives. successors and assigns, expressly covenants that it shall not
assign, mortgage or encumber this Lease, nor underlet, or suffer or permit the
demised premises or any part thereof to be used or occupied by others, without
the prior written consent of Landlord in each instance. The merger or
consolidation of a corporate lessee or subleasee where the net worth of the
resulting or surviving corporation is less than the net worth of the lessee or
sublessee immediately prior to such merger or consolidation shall be deemed an
assignment of this lease or of such sublease. If this lease be assigned, or if
the demised Premises or any part thereof be underlet or Occupied by anybody
other than Tenant, Landlord my, 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 assignment, underletting, occupancy or collection
shall be deemed a waiver of the provisions hereof, the acceptance of the
assignee, undertenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of Covenants on the part of Tenant herein
contained. The Consent by Landlord to an assignment or underletting shall not in
any way be construed to relieve Tenant from obtaining the express Consent in
writing of Landlord to any further assignment or underletting. In no event shall
any permitted sublessee assign or encumber its sublease or further sublet all or
any portion of its sublet space, or otherwise suffer or permit the sublet Space
or any part thereof to be 'wed or Occupied by others, without Landlord's prior
written Consent in each instance. A modification, amendment or extension of a
sublease shall be deemed a sublease. If any lien is filed against the demised
premises or the building of which the same form a part for brokerage service
Claimed to have been performed for Tenant, whether or not actually performed,
the same shall be discharged by Tenant within ten (10) days thereafter, at
Tenants expense, by filing the bond required by law, or otherwise, and paying
any other necessary sums, and Tenant agrees to indemnify Landlord and its agents
and hold them harmless from and against any and all claims, losses or liability
resulting from such lien for brokerage services rendered.
B. If Tenant desires to assign this Lease or to sublet all or any portion of the
demised Premises, it shall first submit in writing to Landlord the documents
described in Section C hereof, and shall offer in writing, (i) with respect to a
Prospective assignment, to assign this Lease to Landlord without any payment of
moneys or other Consideration therefor, or, (ii) with respect to a Prospective
subletting, to sublet to Landlord the portion of the demised premises involved
("Leaseback Area") for the term specified by Tenant in its proposed sublease or,
at Landlord's option for the balance of the term of the Lease less one (1) day,
and at the lower of (a) Tenant's Proposed subrental or (b) at the same rate of
fixed rent and additional rent, and otherwise on the same terms, covenants and
conditions (including Provisions relating to escalation rents), as are Contained
herein and as are allocable and applicable to the portion of the demised
premises to be covered by such subletting. The offer shall specify the date when
the Leaseback Area will be made available to Landlord, which date shall be in no
event earlier than ninety (90) days nor later than one hundred eighty (180) days
following the acceptance of the offer. If an offer of sublease is made, and if
the proposed sublease will result in all or substantially all of the demised
premises being sublet, then Landlord shall have the option to extend the term of
its proposed sublease for the balance of the term of this Lease less one (1)
day.
Landlord shall have a period ninety (90) days from the receipt of
such offer to either accept or reject the same. If Landlord shall accept such
offer (i) Tenant shall then execute and deliver to Landlord, or to anyone
designated or named by Landlord, an assignment or sublease, as the case may be,
in either case in a form reasonably satisfactory to Landlord's counsel; and (ii)
if the proposed transaction is a sublease and Landlord accepts such offer,
Tenant, on demand, shall pay to Landlord or its managing agent (as Landlord
shall elect) an amount equal to the brokerage commissions which would have been
incurred by Tenant but for Landlord's accepting such offer.
If a sublease is1/450 made it shall expressly:
(a) permit Landlord to make further subleases of all or any
part of -the Leaseback Area and (at no cost or expense to Tenant) to make and
authorize any and all changes, alterations, installations and improvements in
such space as necessary;
(b) provide that Tenant will at all times permit reasonably
appropriate means of ingress to and egress from the Leaseback Area;
(c) negate any intention that the estate created under such
sublease be merged with any other estate held by either of the Parties.
(d) provide that: Landlord shall accept the Leaseback Area "as
is" except that Landlord, at Tenant 's expense, shall perform all such work and
make all such alterations as may be required physically to separate the
Leaseback Area from the remainder of the demised premises and to permit lawful
Occupancy, it being intended that Tenant shall have no other cost or expense in
connection with the subletting of the Leaseback Area:
(e) provide that at the expiration of the term of such
sublease Tenant will accept the Leaseback Area in its then existing condition,
subject to the obligation of Landlord to make such repairs thereto as may be
necessary to Preserve the Leaseback Area in good order and Condition, ordinary
wear and tear excepted.
Landlord shall indemnify and save Tenant harmless from all obligation
under this Lease as to the Leaseback Area during the period of time it is
sublet, except for fired annual rent and additional rent, if any, due under the
within Lease, which are in excess of the rents and additional sums due under
such sublease.
Subject to the foregoing, Performance by Landlord, or its designee,
under a sublease of the Leaseback Area shall be deemed performance by Tenant of
any similar obligation under this Lease and any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
Lease, nor shall Tenant be liable for any default under this Lease or deemed to
be in default hereunder if such default is occasioned by or arises from any act
or omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or Pursuant to any such
sublease.
C. If Tenant requests Landlord's consent to a specific assignment or subletting,
it shall submit in writing to Landlord (i) the name and address of the proposed
assignee or Sublessee, (ii) a duly executed counterpart of the proposed
agreement of assignment or sublease, (iii) reasonably satisfactory information
as to the nature and character of the business of the proposed assignee or
sublease and as to the nature of its proposed use of the space, and (iv)
banking, financials or other credit information relating to the proposed
assignee or sublessee reasonably sufficient to enable Landlord to determine the
financial responsibility and character of the Proposed assignee or subleasee.
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D. If Landlord shall not have accepted Tenant's offer, as Provided in Section B,
then Landlord will not unreasonably withhold or delay its consent to Tenant's
request for consent to such specific assignment or subletting, where Tenant will
not move the conduct of its business to another building in New York City. Any
Consent of Landlord under this Article shall be subject to the terms of this
Article and conditioned upon there being no default by Tenant, beyond any grace
Period, under any of the terms, covenants and conditions of this Lease at the
time that Landlord's consent to any such subletting or assignment is requested
and on the date of the commencement of the term of any proposed sublease or the
effective date of any proposed assignment.
E. Tenant understands and agrees that no assignment or subletting shall be
effective unless and until Tenant, upon receiving any necessary Landlord's
written consent (and unless it was theretofore delivered to Landlord) causes a
duly executed copy of the sublease or assignment to be delivered to Landlord
within ten (10) days after execution thereof. Any such sublease shall provide
that the sublessee shall comply with all applicable terms and conditions of this
Lease to be performed by the Tenant hereunder. Any such assignment of lease
shall contain an assumption by the assignee of all of the terms, covenants and
conditions of this Lease to be Performed by the Tenant.
F. Anything herein contained to the contrary notwithstanding:
1. Tenant shall not advertise (but may list with brokers) its
space for assignment or subletting at a rental rate lower than the greater
of the then building rental rate for such space or the rental rate then
being paid by Tenant to Landlord.
2. The transfer of a majority of the issued and outstanding
capital stock of, or a controlling interest in, any Corporate tenant or
subtenant of this Lease or a majority of the total interest in any
Partnership tenant or subtenant, however accomplished, and whether in a
single transaction or in a series of related or unrelated transactions,
shall be deemed an assignment of this Lease or of such sublease. The
transfer of outstanding capital stock of any Corporate tenant, for
Purposes of this Article, shall not include sale of such stock by persons
other than those deemed "insiders" within the meaning of the Securities
Exchange Act of 1934 as amended, and which sale is effected through
"over-the-counter market" or through any recognized stock exchange.
3. No assignment or subletting shall be made:
(a) To any person or entity which shall at that time
be a tenant, subtenant or other occupant of any part of the building of which
the demised premises form a part, or who dealt with Landlord or Landlord's agent
(directly or through a broker) with respect to Space in the building during the
six (6) months immediately preceding Tenant's request for Landlord's Consent:
(b) By the legal representatives of the Tenant or by
any person Tenant's interest under this Lease passes by operation of law, except
in compliance with the provisions of this Article:
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(c) To any person or entity for the conduct of a
business which is not in keeping with the standards and the general character of
the building of which the demised premises form a part.
G. Anything hereinabove contained to the contrary notwithstanding, the offer
back to Landlord provisions of Section B hereof shall not apply to, and Landlord
will not unreasonably withhold or delay its consent to an assignment of this
Lease, or sublease of all or part of the demised Premises, to the parent of
Tenant or to a wholly owned subsidiary of Tenant or of said Parent of Tenant,
provided the net worth of the transferor or sublessor after such transaction, is
equal to or greater than its net worth immediately prior to such transaction,
and provisions of this Article.
H. Anything hereinabove contained to the contrary notwithstanding, the offer
back to Landlord provisions of Section B hereof shall not apply to, and Landlord
will not unreasonably withhold or delay its consent to an assignment of this
Lease, or sublease of all or part of the demised premises, to any corporation
(i) to which substantially all the assets of Tenant are transferred or (ii) into
which Tenant may be merged or Consolidated, provided that the net worth,
experience and reputation of such transferee or of the resulting or surviving
Corporation, as the case may be, is equal to or greater than the net worth
experience and reputation of Tenant and of any guarantor of this Lease
immediately prior to such transfer and provided, also, that any such transaction
complies with the other provisions of this Article.
No consent from Landlord shall be necessary under subdivisions C and H
hereof where (i) reasonably satisfactory proof is delivered to Landlord that the
net worth and other Provisions of C or H, as the case may be, and the other
Provisions of this Article, have been satisfied and (ii) Tenant, in a writing
reasonably satisfactory to Landlord's attorneys, agrees to remain primarily
liable jointly and severally with any transferee or assignee, for the obligation
of Tenant under this Lease.
I. If Landlord shall not have accepted any required Tenant's offer and/or Tenant
effects any assignment or subletting, then Tenant thereafter shall pay to
Landlord a sum equal to (a) any rent or other consideration paid to Tenant by
any subtenant which (after deducting the Costs of Tenant, if any, in effecting
the subletting, including reasonable alteration costs, commissions and legal
fees) is in excess of the rent allocable to the sub leased space which is then
being paid by Tenant to Landlord Pursuant to the terms hereof, and (b) any other
profit or gain (after deducting any necessary expenses incurred) realized by
Tenant from any such subletting or assignment. All sums payable hereunder by
Tenant shall be payable to Landlord as additional rent upon receipt thereof by
Tenant.
J. In no event shall Tenant be entitled to make, nor shall Tenant make, any
claim, and Tenant hereby waives any claim, for money damages (nor shall Tenant
claim any money damages by way of set-off, counterclaim or defense) based upon
any claim or assertion by Tenant that Landlord has unreasonably withheld or
unreasonably delayed its consent or approval to a proposed assignment or
subletting as provided for in this Article. Tenant's sole remedy shall be an
action or Proceeding to enforce any such Provision, or for specific performance,
injunction or declaratory judgment.
5
1. CHANGE OF LOCATION.
a. Tenant covenants and agrees that Landlord shall have the absolute and
unqualified right, upon notice to Tenant, to designate as the Demised Premises
that part of any other floor in the Building located at 0000 Xxxxxxxx Xxx Xxxx,
Xxx Xxxx that approximately corresponds to the premises demised hereunder;
provided, however (i) Landlord must exercise this right only once during the
Initial Term of this Lease, (ii) such substituted space shall be the equivalent
or better in the appearance of the Demised Premises upon completion of
Landlord's Initial Construction (wear and tear, as well as damage to the Demised
Premises caused by Tenant, excepted) and (iii) Landlord shall move Tenant to the
substituted space during a single weekend. Such notice shall specify and
designate the space so substituted to the Demised Premises. Notwithstanding such
substitution of space, this Lease and all the terms, provisions, covenants and
conditions contained in this lease shall remain and continue in full force and
effect, except that the Demised Premises shall be and deemed to be such
substituted space (hereinafter called "Substituted Space"), with the same force
and effect as if the Substituted Space were originally specified in this lease
as the premises demised hereunder.
b. In the event of the substitution of space as provided in section 38.01,
Tenant, upon six (6) months prior written notice, shall move to the substituted
space at Landlord's expense; and upon failure of Tenant to so move to the
Substituted Space, Landlord, may, as Tenant's agent, remove Tenant from the
Demised Premises to the Substituted Space. Failure of Tenant to move to the
Substituted Space pursuant to this Article 38 shall be deemed a substantial
breach of this Lease. Landlord shall reimburse Tenant for Tenant's reasonable
and necessary out-of-pocket expense actually incurred with regard to the move to
the Substituted Space. Upon request from Landlord, Tenant shall supply Landlord
with satisfactory proof of out-of-pocket expenses incurred by Tenant in moving
from the Demised Premises to the Substituted Space.
c. Following such substitution of space (pursuant to this Article 38) if any,
Landlord and Tenant shall, promptly at the request of either party, execute and
deliver an agreement in recordable form setting forth such substitution of Space
6
