▇▇▇/▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates Landlord,
to
Tahiti Apparel, Inc. Tenant,
===============================================================================
L E A S E
===============================================================================
From 10/1/97
To 1/31/08
FROM TO
Annual Rent $117,000.00 10/1/97 9/30/02
$128,700.00 10/1/02 1/31/08
Premises ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
7B-1 (Entire ▇▇▇▇ ▇▇. ▇▇▇▇)
▇▇▇ ▇▇▇▇▇
Agreement of Lease, made as of this 21st day of August, 1997 between
▇▇▇/▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates, a partnership having offices in care of
Helmsley-Spear, Inc., ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, party of the first part,
hereinafter referred to as "Landlord" or "Lessor," and Tahiti Apparel, Inc., 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 7b-1, 7th floor, as more particularly shown on the
plan annexed hereto and made a part hereof in the building known as ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ in the borough of Manhattan, City of New York, for the term of 10 years,
4 months (or until such term shall sooner cease and expire as hereinafter
provided) to commence on the 1st day of October 1997 and to end on the 31st day
of January 2008, both dates inclusive, at an annual rent of $117,000.00 -
10/1/97-9/30/02; $128,700.00 - 10/1/02-1/31/08 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 $9,750.00 - 10/1/97-9/30/02 and $10,725.00 - 10/1/02-1/31/08, 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
deduction whatsoever, except that Tenant shall pay the first monthly
installment(s) on the execution hereof (unless this lease be a renewal).
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
and agree as follows:
RENT
FIRST: Tenant shall pay the rent and additional rent as above and as
hereinafter provided.
ADDITIONAL RENT
SECOND: (a) Tenant shall pay to Landlord, as additional rent hereunder,
in advance, on the first day of each and every month 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 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 paragraph 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
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rent then due. For the non-payment 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.
RENT DUE UNDER OTHER LEASE AS ADDITIONAL RENT
THIRD: In the event that, at the commencement of the term of this
lease, or thereafter, Tenant shall be in default in the payment of rent to
Landlord pursuant to the terms of another lease with Landlord or with Landlord's
predecessor in interest, Landlord may, at Landlord's option and without notice
to Tenant, add the amount of such arrearages to any monthly installment of rent
payable hereunder, and the same shall be payable to Landlord as additional rent.
USE
FOURTH: Tenant shall use and occupy the demised premises for executive,
general and design offices and for no other purpose. Tenant shall not suffer or
permit the demised premises or any part thereof to be used by others for any
purpose whatsoever, without the prior written consent of Landlord in each
instance.
REQUIREMENTS OF LAW
FIFTH: Tenant at its sole expense shall comply with all laws, orders
and regulations of Federal, State, County and Municipal 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 provided same is attributable to Tenant's particular use of the
demised premises. 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.
CERTIFICATE OF OCCUPANCY
SIXTH: Tenant will not at any time use or occupy the demised premises
in violation of the certificate of occupancy or certificate of compliance issued
for the building of which the demised premises form a 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.
Landlord represents that, as of the date hereof, the certificate of occupancy
issued for the building permits office use in the demised 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 provisions of Paragraph 40 hereof. The statement
in this lease of the nature of the business to be conducted by Tenant in demised
premises shall not be deemed or construed to constitute a representation or
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 for the building of which the demised
premises form a part, or otherwise permitted by law. If
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alternations or additions, 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.
NON-HAZARDOUS USES
SEVENTH: Tenant shall not suffer any act to be done or any condition to
exist on the demised premises or any part thereof or any article to brought
thereon which may be dangerous, unless safeguarded as required by law, or by any
insurance carrier having any interest in such conduct or conditions 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.
TENANT TO KEEP INSURANCE RATE LOW
EIGHTH: Tenant will conduct its business in such a manner as to enable
Landlord or other tenants in the building to obtain the lowest possible
insurance rate upon the entire building in which the demised premises are
located, consistent with Tenant's permitted use, and will, at its sole expense,
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 (except that
the mere use of the demised premises by Tenant consistent with Tenant's
permitted use shall not subject Tenant to the requirements of this sentence),
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 reimbursement upon the first day
of the month 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 or
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.
ASSIGNMENT, MORTGAGE AND SUBLEASING
NINTH: (a) Tenant shall not assign, mortgage or encumber this agreement
nor underlet the demised premises or any part thereof or permit the demised
premises or any part thereof to be occupied by anybody other than Tenant,
without the prior written consent of Landlord in each
4
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, successors or
assigns, such party shall, within ten (10) days of such underletting, furnish
Landlord with a duplicate original of such underlease and shall, on demand of
Landlord, supply Landlord within ten (10) days of such demand, a written list of
all such under-tenants, the terms, including expiration dates of their
under-tenancies, the rents payable thereunder, and any additional information
requested by Landlord. This provision or 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 licensees, and any breach or violation of any of
the terms, covenants, agreements, provisions, conditions and limitations of this
lease, whether by act or omission, by any under-tenant shall constitute a breach
or violation of this lease by Tenant.
WASTE
TENTH: Throughout the term of this lease, Tenant will take good care of
the demised premises and appurtenances and suffer no waste, damage,
disfigurement or injury thereto or any part thereof.
ALTERATIONS
ELEVENTH: (a) Tenant shall make no alterations, decorations,
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. Landlord's consent to
the performance by Tenant of work consisting of nonstructural alterations to the
demised premises (and to the related plans and specifications) shall not be
unreasonably withheld or delayed, provided that (i) Tenant is not then in
default under this lease (whether or not any applicable grace period has
expired), (ii) the outside appearance of the building shall not be affected,
(iii) Tenant's work shall not affect any
5
structural part of the building, (iv) no part of the building outside the
demised premises shall be affected, (vi) the mechanical, electrical, plumbing
and other service and utility systems of the building shall not be affected, and
(vii) Tenant's work shall comply with the applicable provisions of this lease
and law; provided that Landlord's consent shall not be required with respect to
(but Landlord shall be notified of) any such alterations costing less than
$25,000 in the aggregate. Notwithstanding anything herein to the contrary,
Tenant shall not, in the course of performing any work, unreasonably interfere
or disturb any other tenants in the building. All such work, alterations,
decorations, installations, additions or improvements shall be done at Tenant's
sole expense and at such times (but, in any event, during normal business hours)
and in such manner as Landlord may from time to time designate. All alterations,
decorations, installations, additions or improvements upon demised 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 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,
unless, in the case of special built-ins, Tenant elects to remove them, in which
event, Tenant shall repair any damage caused by such removal. 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 from 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.
REPAIRS
TWELFTH: Tenant shall take good care of the demised premises and the
fixtures and appurtenances therein, and at its sole cost and expense make all
non-structural 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 Tenant's
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 plumbing works or gas, or from 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
licensees 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.
6
LANDLORD'S LIABILITY, ALTERATIONS OR REPAIRS
THIRTEENTH: (a) Except where otherwise provided in this lease, there
shall be no allowance to Tenant for a diminution of rental value and no
liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from 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,
replacements or improvements, in the judgment of Landlord desirable or necessary
to be made, until such repairs, alterations, replacements or improvements shall
have been completed; provided that, Landlord shall give Tenant not less than
twenty-four (24) hours' notice (which notice need not be in writing), except in
an emergency, when no notice shall be required.
EMPLOYMENT OF UNION LABOR TO MAKE ALTERATIONS AND
REPAIRS
FOURTEENTH: Tenant agrees that whenever any alterations, additions,
improvements, changes or repairs to the said premises are consented to by
Landlord, or in the moving of merchandise, fixtures or equipment into the said
building, or moving the same therefrom, only such labor under agreement with the
Building 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.
DISCHARGE OF LIENS, ETC.
FIFTEENTH: (a) Any mechanic's lien filed against the demised premises,
or the building of which the same form a part, for work claimed to have been
done for, or materials claimed to have been furnished to Tenant, shall be
discharged by Tenant within thirty (30) 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 contained 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
materialmen 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.
(c) Tenant agrees to obtain and deliver to Landlord, written and
unconditional waivers of liens (and agreement that its filed plans may be
replaced), for all plans, specifications and
7
drawing for work or materials 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.
SIGNS
SIXTEENTH: Tenant will not, without Landlord's written 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.
MISCELLANEOUS PROHIBITED ACTIONS OF TENANT
SEVENTEENTH: (a) Tenant will not cause or permit any connection to be made
to the wiring on the electrical panel board of the building without the prior
written consent and supervision of the Landlord.
(b) 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.
(c) 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.
(d) Tenant shall not make any electrical or plumbing installation without
Landlord's prior written consent. All water lines must be installed in red
brass.
(e) Window air-conditioning units shall in no event be installed without
Landlord's prior written approval or be mounted so as to extend outward beyond
the line of the window frame.
(f) Tenant shall install no linoleum, rubber, mastic or vinyl floor
covering, unless it is laid over a layer of felt, double cemented in the manner
approved by Landlord.
(g) 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
8
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.
(h) 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 Rigger's
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.
(i) 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 the Landlord, and shall employ such exterminators and
such exterminating company or companies as shall be approved by Landlord.
(j) 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.
(k) 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
reasonable 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 (which is to be taken by
the waste remover) in the said areas prior to 5:00 P.M.
(l) 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,
9
further, to remove all ice and snow from the sidewalks immediately in front of
the demised premises.
(m) Tenant will not suffer, permit or allow unusual or objectionable odors
to be produced upon or permeate the demised premises.
WINDOW CLEANING
EIGHTEENTH: Tenant will not clean, nor require, permit, suffer or allow any
window in the demised premises to be cleaned, from the outside in violation of
Section 202 of the Labor Law or of the rules of the Board of Standards and
Appeals, or of any other board or body or asserting jurisdiction.
NOTICE OF DAMAGE TO PIPES, OR FIRE
NINETEENTH: Tenant shall give prompt notice to Landlord of any accidents to
or defects in the pipes and apparatus in the building or of any fire that may
occur.
LANDLORD'S ACCESS TO PREMISES
TWENTIETH: Tenant shall permit Landlord to erect, use and maintain, pipes
and conduits in and through the demised premises. Landlord or Landlord's agents
shall have the right to enter the 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 ▇▇▇▇▇ 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 the 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 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 agent shall accord
reasonable care to Tenant's property), 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,
10
toilets, or other public parts of the building and to change the name, number or
designation by which the building is commonly known.
ELECTRICITY
TWENTY-FIRST: Landlord and Tenant understand and agree that Tenant will
obtain its electricity for the demised premises through presently existing
wiring and equipment servicing the demised premises, either on a "submetering"
basis or on a "rent inclusion" basis. Initially, the parties agree, electricity
distribution shall be on a "submetering" basis. If for any reason beyond
Landlord's control, including action by government or other authority asserting
jurisdiction over the matter, Tenant no longer can so obtain its electricity
supply on a "submetering" basis, then and in such event Landlord will
redistribute to Tenant the electricity for the demised premises, on a "rent
inclusion" basis, as hereinafter provided.
(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 Landlord's Cost (as
hereinafter defined), for Tenant's submetered electricity consumption plus 15%
thereof. Where more than one meter measures the service of Tenant in the
Building, the KWHR and the KW recorded by each meter shall be added, and billed
as if billed from a single meter. Bills therefor shall be rendered at such times
as Landlord may elect and the amount, as computed from a meter or meters and
determined by landlord's electrical consultant, in accordance with this Article,
shall be deemed to be, and be paid as, additional rent.
Landlord's Cost for such redistributed electricity shall be equal to
Landlord's Cost Rates (as hereinafter defined) for the relevant billing period
multiplied by Tenant's electricity consumption (i.e., energy and demand) based
on the aforementioned meter readings as herein provided.
(B) Landlord's Cost Rates shall be determined as follows:
"Landlord's Electricity Consumption cost" (Landlord's cost per KWHR) for
any given Utility Billing Period, shall mean the amount arrived at by dividing
(i) Landlord's KWHR cost, as indicated on the applicable utility ▇▇▇▇ (inclusive
of any taxes, including any taxes included in the computation of said utility
▇▇▇▇) for Landlord's Electricity Consumption for said Utility Billing Period,
inclusive of any fuel adjustments or rate adjustments contained in said utility
▇▇▇▇ allocable to Landlord's Electricity Consumption (provided that same have
not been included in the computation of Landlord's Electricity Demand Cost), by
(ii) Landlord's Electricity Consumption as indicated on said ▇▇▇▇.
"Landlord's Electricity Demand Cost" (Landlord's cost per KW) for any given
Utility Billing Period, shall mean the amount arrived at by dividing (i)
Landlord's KW cost, as indicated on the applicable utility ▇▇▇▇ (inclusive of
any taxes, including any taxes included in the computation of said utility ▇▇▇▇)
for Landlord's Electricity Demand for said Utility Billing Period, inclusive of
any rate adjustments contained in said utility ▇▇▇▇ allocable to Landlord's
Electricity Demand (provided that same have not been included in the computation
of Landlord's Electricity Consumption Cost), by (ii) Landlord's Electricity
Demand as indicated on said ▇▇▇▇.
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For purposes of determining Landlord's Electricity Consumption Cost and
Landlord's Electricity Demand Cost, (i) each amount appearing on any utility
▇▇▇▇ for demand, fuel or rate adjustments shall be taken into account (where it
cannot be determined from the utility ▇▇▇▇ whether such amount relates to
consumption or demand, it shall be deemed to relate to demand) and (ii) there
shall be added to Landlord's Cost a sum equal to Landlord's fees paid to the
electrical consultant and Landlord's overhead, in connection with billing and
computing electricity charges for this Tenant.
For purposes of this Article, the following terms shall have the following
meanings:
"Utility Billing Period" shall mean the respective period of electricity
consumption and demand for which Landlord is charged on each successive ▇▇▇▇
from the utility company furnishing electricity to the Building.
"Landlord's Electricity Consumption," for any given Utility Billing Period,
shall mean the number of kilowatt hours of electricity consumed in and for the
Building (including common areas, tenantable areas and mechanical areas) during
said Utility Billing Period, as indicated on the applicable utility ▇▇▇▇.
"Landlord's Electricity Demand," for any given Utility Billing Period,
shall mean the number of kilowatts of electricity demanded in and for the
Building (including common areas, tenantable areas and mechanical areas) during
said Utility Billing Period, as indicated on the applicable utility ▇▇▇▇.
(C) Rent Inclusion: If and so long as Landlord provides electricity to the
demised premises on a rent inclusion basis, Tenant agrees:
1. The fixed annual rent shall be increased by an 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 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 such ERIF, which is a portion of the fixed annual rent,
shall be subject to periodic adjustments as herein provided.
2. The ERIF shall be based in part on a survey of Tenant's consumption of
redistributed electricity, made as hereinafter provided, and shall be equal to a
sum equal to Landlord's cost (Landlord's Cost) for such electricity as in (B)
hereof defined, plus 15% thereof. Landlord's Cost for such redistributed
electricity shall be equal to Landlord's Cost Rates (as hereinbefore defined)
for the relevant billing period multiplied by tenant's electricity consumption
(i.e. energy and demand) based on the most recent survey thereof, all as
hereinafter provided. If after the start of the relevant billing period, the
cost to Landlord shall be increased or decreased, by change in Landlord's
electric rates, charges, fuel adjustments or service classifications, or by
taxes or charges of any kind imposed thereon, or for any other such reasons,
then the ERIF,
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based on the most recent survey, shall be redetermined, effective as of the date
of such change in Landlord's costs, by Landlord's electrical consultant, in
accordance with the provisions hereof.
3. The parties agree that a reputable, independent electrical consultant,
selected by Landlord ("Landlord's electrical consultant"), shall by survey
determine as estimate of Tenant's demand and energy in order to calculate the
ERIF in accordance with this Article, and that Landlord's electrical consultant
may from time to time make surveys in the demised premises of the electrical
equipment and fixtures and the use of current in and for such space. The ERIF
portion of the fixed annual rent shall then be appropriately adjusted, effective
as of the date of each said survey, and in accordance with the provisions
hereof.
Pending the results of the initial survey and determination to be made by
Landlord's consultant, as herein provided, the ERIF portion of the fixed annual
rent shall be calculated using the following method:
For any portion of the initial twelve (12) months after the cessation of
submetering, when Landlord provides electricity to Tenant on a rent inclusion
basis prior to the date of the initial survey of Tenant, the Tenant's
electricity consumption (i.e., energy and demand) for each month during such
initial twelve (12)month period, instead of based on a survey, shall be deemed
to be the same as Tenant's submetering consumption figures for the corresponding
month of the twelve (12) month period immediately prior to such start of rent
inclusion.
Within four (4) months after Tenant's obtaining rent inclusion electricity
hereunder, Landlord will cause a survey and determination to be made of the
electricity consumption (energy and demand) in and for said space.
The parties understand and agree that in any survey of Tenant's electricity
consumption in and for the demised premise, the consultant's survey results
shall be calculated to reflect a proper demand (diversity) factor.
(D) General Conditions: If any tax is imposed upon landlord's receipts from
the sale or resale or redistribution of electrical energy 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 ERIF or in the ▇▇▇▇ of, and paid by,
Tenant to Landlord (unless already included in Tenant's ERIF or additional rent,
as above provided).
If Tenant so disputes the determination, it shall, at its own expense,
obtain from a reputable, independent electrical consultant its own determination
in accordance with the provisions of this Article. Tenant's 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, then 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
13
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 Landlord's option, Tenant agrees to purchase from Landlord all lamps and
bulbs used in the demised premises and to pay for the cost of the installation
thereof, at all competitive prices.
Landlord shall not be liable to Tenant, except for negligence or willful
misconduct, 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 and the demised premises, or the
risers 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 (including fax machines and
p.c.'s) which consume comparable amounts of electricity, without Landlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed.
All necessary wiring, meters and related equipment for providing to the
demised premises submetered electricity will be provided by Landlord at
Landlord's sole cost and expense. Any additional riser or risers to supply
Tenant's electrical requirements, upon written request of Tenant, will be
installed by Landlord, at 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 the 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.
If all or part of the ERIF, or the submetering additional rent payable in
accordance with this Article becomes uncollectable or reduced or refunded by
virtue of any law, order or regulation, the parties agree that, at Landlord's
option, in lieu of ERIF, or submetering additional rent, 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 Landlord's cost for electricity redistributed to Tenant, as hereinabove
defined, plus 15% thereof (or the maximum such percentage then permitted by
law).
The Landlord reserves the right, subject to the first paragraph of this
Article, at any time, upon thirty (30) days' written notice, to change its
furnishing of electricity to Tenant from a submetering basis to a rent inclusion
basis, or vice versa. 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 Tenant, in which event the
Tenant may make application directly to the public utility for the Tenant's
entire separate supply of electric current
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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 connected load.
Any meters, risers, or other equipment or connections necessary to enable
Tenant to obtain electric current directly from such utility, shall be installed
at Landlord's sole cost and expense, unless Landlord's termination of
electricity redistribution was required by law, in which case such installation
shall be done 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 Tenant, plus any additional time reasonably required for Tenant's receiving
such direct service (except to the extent, if any, that sooner termination may
be required by law), 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.
(E) Anything hereinabove to the contrary notwithstanding, in no event is
the ERIF, or any submetering additional rent charge, to be less than an amount
equal to the total of Landlord's payment to the public utility for the
electricity consumed by Tenant (and any taxes thereon or on redistribution of
same).
TWENTY-SECOND: (a) If Landlord installs a water meter to measure Tenant's
water consumption for all purposes, and throughout the duration of Tenant's
occupancy Tenant shall keep said meter and installation equipment in good
working order and repair at Tenant's own cost and expense, in default of which
Landlord may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant; provided that Landlord shall not install a
water meter to measure Tenant's water consumption unless Landlord also begins to
measure the water consumption (and charge therefor) of not less than fifty
percent (50%) of he other office tenants in the building. 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.
(b) 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.
(c) 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 use, consumption, maintenance or supply of water, water system or
sewage or sewage connection or system.
15
(d) The ▇▇▇▇ rendered by Landlord for metered water, sewer or any other
charges provided for in this paragraph "22," 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 collectable 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, $140.00 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 ▇▇▇ 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-THIRD: If the sprinkler system or any of its appliances shall be
damaged or injured or not in proper working order by reason of any act or
omission of Tenant, Tenant's agents, servants, employees, licensees or visitors,
Tenant shall forthwith restore the same 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 $140.00 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.
TWENTY-FOURTH: Tenant shall have the privilege of using the air
conditioning system which affects the whole or a portion of the 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 ▇▇▇▇ for same. If Tenant shall default in paying such
▇▇▇▇ 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-
16
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 paragraphs, 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-FIFTH: (a) As long as Tenant is not in default under any 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 from 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 be 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 demised 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 elevator in said building, nor will it permit them to use
the stairs 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.
HEAT, CLEANING, PUBLIC AREAS
TWENTY-SIXTH: Landlord will:
(a) Furnish heat to the demised premises, when and as required by law, on
business days during regular business hours.
(b) Cause to be kept clean the public halls and public portions of the
building which are used in common by all tenants.
FIXTURES & PARTITIONS INSTALLED BY LANDLORD
TWENTY-SEVENTH: Tenant shall have the use of the partitions existing in the
premises demised herein and of all other equipment, fixtures and appurtenances
installed by Landlord prior to or during the term hereof. The ownership of all
such property shall at all times be vested in Landlord and possession thereof
shall revert to Landlord upon the expiration of the lease.
17
VAULTS
TWENTY-EIGHTH: If any vault space is adjacent to the demised premises, the
same shall not be or be deemed to be part of the demised premises or its
appurtenances. Landlord may permit Tenant to use such 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 may 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, with men and
materials, for the purpose 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 by or on behalf of Landlord. Any fee or license
charge or tax of municipal authorities for such vault shall be paid by Tenant.
LIABILITY OF LANDLORD, PROPERTY LOSS, DAMAGE
TWENTY-NINTH: Landlord or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the building, nor for
the loss of or damage to any property of Tenant by theft or otherwise. Landlord
or its agents 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 the roof,
street or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature, including but not limited to the making of repairs
and improvements, unless caused by or due to the negligence of Landlord, its
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 defects in the demised premises or in
the building of which they form a part. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the demised premises or in the building
or of defects therein or in any fixtures or equipment.
INDEMNITY
THIRTIETH: Tenant shall, throughout the term and thereafter, 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, agents, assigns or undertenants.
LIABILITY OF LANDLORD, SERVICE INTERRUPTION, ACTS BEYOND CONTROL
THIRTY-FIRST: Neither this lease nor any obligation hereunder on Tenant's
part to be performed (including, but not limited to, Tenant's obligation to pay
the rents provided for hereunder) shall in any wise be released, discharged,
impaired, excused or otherwise affected because of Landlord's inability to
supply, furnish or make such services, fixtures, equipment, repairs, additions,
improvements, alterations and/or decorations. If any, as landlord may be
required to supply, furnish or make hereunder or in connection herewith, or
because of any delay
18
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 may
cause or thing whatsoever beyond Landlord's control, including, but not limited
to, any law or ordinance or any governmental order, rule, regulation or
requirement, or any shortages in supplies, material 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 demised 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
event of any liability by Lessor, and no other property or assets of Lessor
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Lessee's use and occupancy of the demised premises or any other
liability of Lessor to Lessee (except for negligence).
SUBORDINATION
THIRTY-SECOND: This lease is and shall be subject and subordinate at all
times to all present or future leases and subleases of the entire building or of
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 leases 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 delivery 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 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 lese, then, unless Lessor,
at its sole option, shall have elected to extend or renew the term of the Master
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. From 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
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paragraph shall not be deemed modified in whole or in part by any provision
of this lease or any rider thereto during the term hereof, unless such
provisions or rider shall by its terms expressly so modify it.
FIRE
THIRTY-THIRD: Provided the damage be not caused by the fault or neglect of
Tenant or of its employees, agents, visitors or licensees, in the event of
damage by fire, or other action of the elements, to the demised premises not
rendering all of them unfit for occupancy, Landlord shall repair the same 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 untenantable, the rent shall cease until they be 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, 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 untenantable 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 may, 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 the foregoing
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.
CONDEMNATION
THIRTY-FOURTH: 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 are a part shall be so
acquired or condemned, then and in that event the term of this lease, at the
option of 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.
BANKRUPTCY
THIRTY-FIFTH: If, when and to the extent permitted by law, the parties
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
20
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 a
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 enter into an
arrangement, this lease shall ipso facto be cancelled and terminated, and in
which even neither Tenant nor any person claiming through or under Tenant or by
virtue of any statue 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 in behalf of Tenant upon the execution hereof.
(b) If at the date fixed as the commencement of the term 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 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 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 any 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 statue or rule of law,
may retain as liquidated damages any rent, security, deposit or monies received
by him from Tenant or others in behalf of Tenant.
(c) It is stipulated and agreed that in the event of the 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 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 the fair and reasonable rental value for
the part or the whole of the premises so re-let during the term of the
re-letting. Nothing herein contained shall limit or prejudice the right of
Landlord to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
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SECURITY
THIRTY-SIXTH: Tenant has deposited with Landlord the sum of $22,010.00 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 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 leases, 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 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 of 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 nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
DEFAULT
THIRTY-SEVENTH: (a) If Tenant defaults in fulfilling any of the covenants
of this lease other than the covenants for the payment of rent or additional
rent, or of any ancillary agreement, or if the demised premises become vacant or
deserted, then, in any one or more of such events, upon Landlord serving a
written fifteen (15) days' notice upon Tenant specifying the nature of said
default and upon the expiration of said fifteen (15) days, if Tenant shall have
failed to comply with or remedy such default, or if the said default or omission
complained of shall be of such nature that the same cannot be completely cured
or remedied within said fifteen (15) day period, and if Tenant shall not have
diligently commenced curing such default within such fifteen (15) day period,
and shall not thereafter with reasonable diligence and in good faith proceed to
remedy or cure such default, then Landlord may serve a written three (3) days'
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 served herein or any
22
item of addition 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; then and in any of such events Landlord may without
notice, re-enter the demised premises either by force or otherwise, and
dispossess Tenant by summary proceedings or otherwise; and the legal
representative of Tenant or other occupant of demised premises and remove their
effects and hold the premises as if this lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to institute
legal proceedings to that end. If Tenant shall make default hereunder prior to
the date fixed as the commencement of any renewal or extension of this lease,
Landlord may cancel and terminate such renewal or extension agreement by written
notice.
(c) 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 _________ premises, then this lease shall, at the option of Landlord,
be terminated, but Tenant shall nevertheless ___________able as hereinbefore
provided.
REMEDIES OF LANDLORD
THIRTY-EIGHTH: In case of such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the rent and additional rent
shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, together with such expenses as Landlord may incur
for legal expenses, attorneys' 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 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 unexpired 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 but 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 to 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 event 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
23
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 any 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
release or affect Tenant's liability for damages; provided that, upon request of
Tenant, Landlord shall not unreasonably refuse to re-let the demised premises.
Any security in Landlord's possession not retained by it as liquidated damages
may be applied by it for any or all of the aforesaid purposes. Any such
liquidated damages shall be paid as additional rent hereunder in monthly
installments by Tenant on the rent day specified in this lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of 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 purpose 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 event 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 of any particular remedy, shall not preclude
landlord from any other remedy, in law or in equity.
COURT ORDER RELATING TO RENT
THIRTY-NINTH: Notwithstanding anything elsewhere contained in this lease,
if by reason of any present or future cause or thing whatsoever (including,
without limitation, by reason of any statute, ordinance, judgment, decree, court
order or 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 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.
WAIVER OF TRIAL BY JURY
FORTIETH: 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 any matters whatsoever arising out of or in any way
connected with this lease, the relationship of landlord and tenant, 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 impose
any counterclaim of any nature in any summary proceeding, except for statutory
mandatory counterclaims. 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.
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WAIVER OF REDEMPTION
FORTY-FIRST: 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 of Tenant
of any of the covenants and conditions of this lease, or otherwise.
NO WAIVER
FORTY-SECOND: (a) If there be 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 hereof; any
option on the part of Tenant herein contained for an extension or renewal hereof
shall not be deemed to give Tenant any option for a further extension beyond the
first renewal or extended term.
(b) 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 the 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 event 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 for loss of or damage to any of Tenant's effects in connection
with such subletting.
(c) The failure of Landlord to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of this lease, or any
of the Rules and Regulations set forth or hereafter adopted by Landlord, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation.
25
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.
(d) 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.
(e) No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rent herein stipulated shall be deemed to be other than on account
of the earliest stipulated rent, nor shall any endorsement or statement 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.
LICENSE
FORTY-THIRD: Tenant covenants that Tenant will not, without the consent of
Landlord first obtained in each case, make or grant 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.
GLASS AND GLASS INSURANCE
FORTY-FOURTH: Landlord Shall replace, at the expense of Tenant, any and all
plate and other glass damaged or broken from any cause whatsoever in and about
the demised premises.
ADJACENT EXCAVATION-SHORING
FORTY-FIFTH: If an excavation shall be made upon land adjacent to the
demised premises, or shall be authorized to be made, Tenant shall afford to the
person causing or authorized to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form a
part from injury or damage and to support the same by proper foundations without
any claim for damages or indemnity against Landlord, or diminution or abatement
of rent.
BILLS AND NOTICES
FORTY-SIXTH: Except as otherwise in this lease provided, a ▇▇▇▇, 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 ▇▇▇▇ 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.
26
QUIET ENJOYMENT
FORTY-SEVENTH: 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.
QUIT AND SURRENDER
FORTY-EIGHTH: 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 this lease. Lessee agrees it shall indemnify
and save Lessor harmless against costs, claims, lost or liability resulting from
delay by Lessee in so surrendering the demised premises, including, without
limitation, any claims made by a 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 equal to one and one-half 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.
REPRESENTATIONS
FORTY-NINTH: Landlord or Landlord's agents have made no representations or
promises with respect to the said building or demised premises except as herein
expressly set forth. The taking 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.
RENT CONTROL
FIFTIETH: In the event the fixed annual rent or additional rent or any part
thereof provided to be paid by Lessee under the provisions of this lease during
the demised term shall become uncollectible or shall be reduced or required to
be reduced or refunded by virtue of any Federal, State, County or City law,
order or regulation, or by any direction of a public officer or body pursuant to
law, or the orders, rules, 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
27
hereof shall terminate and come to an end on the date fixed in said notice as if
the said date were the date originally fixed herein for the termination of 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 to continue to
pay said rentals and if such agreement by Lessee shall be legally enforceable by
Lessor.
COVENANTS BINDING SUCCESSORS
FIFTY-FIRST: The covenants, conditions and agreements contained in this
lease shall bind and insure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and,
except as otherwise provided in this lease, their assigns.
LEASE EMBODIES UNDERSTANDING OF PARTIES
FIFTY-SECOND: Except as otherwise contained in a written instrument or
instruments duly executed and delivered by and 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 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
matter covered hereby.
DEFINITIONS
FIFTY-THIRD: (a) The term "Landlord" as used in this lease means only the
owner or the mortgagee in possession for the time being of the land and building
(or the owner of a lease of the 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 the 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 of which demised premises
form a part. The term "lease of the entire building or of the land and entire
building" 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 sublessee thereof.
(b) The words "re-entry" as used in this lease are not restricted to their
technical legal meaning.
28
(c) The term "business days" as used in the 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) days' prior written
request by Landlord, will deliver to Landlord 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 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.
COST OF LIVING ADJUSTMENTS
1998 5% CAP
SEE RIDER
FIFTY-FOURTH: The fixed annual rent reserved in this lease and payable
hereunder shall be adjusted, as of the times and in the manner set forth in this
Article:
(i) The term "Base Year" shall mean the full calendar year.
(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, NY - Northeastern, NJ, 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.
(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 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.
29
(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 January
1st following such month of December (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 that 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% (3.0/102.0) 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
provided 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.
(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 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 obligations 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.
TAX ESCALATION
FIFTY-FIFTH: Tenant shall pay to Landlord, as additional rent, tax
escalation in accordance with this Article:
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(a) For purposes of this lease the rentable square foot area of the
presently demised premises shall be deemed to be 11,700 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, 1997 and ending June 30, 1998.
(ii) The term "The Percentage," for purposes of computing tax escalation,
shall mean one and ninety-three hundredths percent (1.93%). 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 605,574 square feet.
(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).
(v) The term "real estate taxes" shall mean the total of all taxes and
special or other assessments levied, assessed or imposed at any time by any
governmental authority upon or against the building project, and also any tax or
assessment levied, assessed or imposed at any time by any governmental authority
in connection with the receipt of income or rents from said building project to
the extent that same shall be in lieu of all or a portion of any of the
aforesaid taxes or assessments, or additions or increases thereof, upon or
against said building project. If, due to a future change in the method of
taxation or in the taxing authority, or for any other reason, a franchise,
income, transit, profit or other tax or governmental imposition, however
designated, shall be levied against Landlord in substitution in whole or in part
for the real estate tax, 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 paid 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
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installments of such assessment so becoming payable during such comparative
year, together with interest payable during such comparative year.
(vi) The phrase "real estate taxes payable during the base tax year" shall
mean that amount obtained by multiplying 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 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 with 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.
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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.
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.
OCCUPANCY AND USE BY TENANT
FIFTY-SIXTH: 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.
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FIFTY-SEVENTH: 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.
CAPTIONS
FIFTY-EIGHTH: The captions are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope of this lease
nor the intent of any provisions thereof.
RULES AND REGULATIONS
FIFTH-NINTH: Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations and such other and further reasonable Rules and Regulations as
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 Chairman of the Board of Directors of the
Management Division of The Real Estate Board of New York, Inc., 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 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.
SIXTIETH: It is understood and agreed that this lease is submitted to
Tenant on the understanding that it shall not be considered an 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.
34
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
▇▇▇/▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates
Helmsley-Spear, Inc., Agents
______________________________________ ______________________________________
Witness for Landlord
/s/ ▇. ▇▇▇▇▇▇▇▇▇
BY:___________________________________
Executive Vice President
______________________________________ Tahiti Apparel, Inc.
Witness for Tenant Tenant
PLEASE PRINT NAME AND HOME
ADDRESS OF PRINCIPAL WHO WILL /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
EXECUTE THIS LEASE BELOW: BY:___________________________________
______________________________________ TITLE: Executive Vice President
______________________________________
______________________________________
ACKNOWLEDGMENTS
LANDLORD
State of New York )
ss.:
County of New York)
On this day of ________, 19__, before me personally came _________________
to me known and known to me to be a partner of ______________________ A
co-partnership, mentioned and described in, and which executed the foregoing
instrument, and the said duly acknowledged to me that he executed the said
instrument for and on behalf of and with the authority of said
_________________________________ For the uses and purposes therein mentioned.
________________________________________________________________________________
PARTNERSHIP TENANT
State of New York )
ss.:
County of New York)
On this day of ________, 19__, before me personally came _________________
to me known and known to me to be a partner of ______________________ A
co-partnership, mentioned and described in, and which executed the foregoing
instrument, and the said duly acknowledged to me that he executed the said
instrument for and on behalf of and with the authority of said
_________________________________ For the uses and purposes therein mentioned.
________________________________________________________________________________
35
INDIVIDUAL TENANT
State of New York )
ss.:
County of New York)
On this __day of _____, 19__, before me personally came
_____________________ to me known and known to me to be the individual described
in, and who executed, the foregoing instrument, and acknowledged to me that he
executed the same.
________________________________________________________________________________
CORPORATE TENANT
State of New York )
ss.:
County of New York)
On this day of _____, 19__, before me personally came _____________________
to me known, who being by me duly sworn, did depose and say that he resides at
_____________________ that he is the _____________________ of
_____________________ the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the Board
of Directors of said corporation.
________________________________________________________________________________
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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 of 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 walls
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 or affixed for
each Tenant by Landlord at the expense of such Tenant, and shall be of a size,
color and style acceptable to Landlord.
5. The sashes, sash doors, skylights, window 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 be placed on the windowsills.
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 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 of builder's deadening felt shall first be affixed to the
floor with paste or other water soluble material, the use of cement or other
adhesive non-soluble in water is expressly prohibited.
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 of any
instrument, radio, talking machine, musical noise, whistling, singing or in any
other way.
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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. 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 hating, is prohibited.
38
Rider to Agreement of Lease Dated August __, 1997,
Between ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates, Landlord,
and Tahiti Apparel, Inc., Tenant
SIXTY-FIRST: It is understood and agreed that Tenant shall be permitted to
list its firm name or divisions of its firm, but no more than four (4) listings,
in the lobby board of the building. The charge to Tenant shall be $75.00 per
listing plus tax or the charge then in effect.
SIXTY-SECOND: It is understood and agreed that Landlord at its own cost and
expense will do the following work for Tenant in the demised premises:
(1) Demolition of demised premises
(2) Removal of all asbestos in the demised premises (with delivery of
ACP-5 form)
SIXTY-THIRD: It is understood and agreed that it shall be Tenant's
obligation to install sufficient air conditioning equipment to air condition the
demised premises in accordance with the rules and regulations governing said
building. Any air conditioning units located in the demised premises on the date
hereof may be utilized by Tenant; provided the Landlord shall have no obligation
with respect thereto (including, without limitation, with respect to the
maintenance and repair thereof) and Tenant shall accept such units in their
"AS-IS" condition. It is further understood and agreed that if the demised
premises contain an air cooled unit at any time, Tenant shall be charged an
Electric Riser Charge of $5.00 per ton per month, and if Landlord services said
air conditioning unit, Tenant shall be charged an Air Conditioning Service
Charge of $5.00 per ton per month.
SIXTY-FOURTH: Anything in Article Fifty-Fourth to the contrary
notwithstanding, the cost of living adjustment in the fixed annual rental
provided in said Article Fifty-Fourth shall not in any single calendar year
exceed an amount equal to 5% of the fixed annual rent payable under this lease,
multiplied by the number of calendar years elapsed from the Base Year through
the calendar year for which the adjustment is made.
SIXTY-FIFTH: Landlord and Tenant hereby agree that if Tenant is not in
default under this lease on the date Tenant exercises its option under this
article or on the effective date of the cancellation (or, if Tenant is then in
default, such default is cured prior to the expiration of the applicable grace
period), Tenant has the option to cancel this lease effective on the sixth
anniversary of the commencement date by giving six (6) months' prior registered
written notice and immediately paying a termination fee of $100,000 to Landlord.
SIXTY-SIXTH: Notwithstanding anything to the contrary contained in this
lease:
(1) In the event Tenant is obligated (whether pursuant to this lease, by
law or otherwise) to pay or reimburse Landlord for counsel or attorneys' fees,
costs, disbursements, fees, expenditures, charges or expenses, it shall be
deemed that Tenant shall only be obligated to pay
39
or reimburse Landlord for Landlord's reasonable counsel or attorneys' fees, and
reasonable costs, disbursements, fees, expenditures, charges or expenses.
(2) In each instance in this lease in which the words "Tenant's default,"
"default of Tenant," or words of similar import appear, it shall be deemed that
the words "beyond the expiration of any applicable grace and notice periods" be
added thereafter.
(3) In any instance in this lease in which any matter is subject to
Landlord's judgment, opinion, requirements, discretion, determination,
acceptability and/or satisfaction, the same shall be subject to the standard of
reasonableness; provided that the foregoing shall not apply with respect to
instances where Tenant has requested Landlord's consent, approval or permission,
so that, except as otherwise set forth in this lease or as required by
applicable law, there shall be no requirement that Landlord not unreasonably
withhold its consent, approval or permission to any matter requested by Tenant.
(4) Tenant shall be permitted to have access to the demised premises on a
twenty-four (24) hour, seven (7) day per week basis.
(5) Landlord agrees not to expend any money on Tenant's behalf or incur any
obligation on Tenant's behalf, unless Tenant shall have received written notice
from Landlord, specifying the nature and amount of the intended expenditure or
the nature of the intended obligation and within ten (10) days from the receipt
of such notice, Tenant shall not have obviated the necessity for such
expenditure or obligation by Landlord.
(6) Landlord agrees that if any Tenant default complained of is of such a
nature that same cannot be rectified or cured within the period requiring such
rectification and curing as specified in this lease, then such period shall be
extended for the period needed to rectify and cure such default if Tenant within
such original period shall have commenced the rectification and curing thereof
and shall continue thereafter with all due diligence to cause such rectification
and curing and does no complete the same with the use of such diligence within a
reasonable time thereafter.
SIXTY-SEVENTH: Landlord and Tenant represent and warrant to one another
that they have full power and authority to enter into this lease and the person
executing this lease on their behalf is authorized to do so.
SIXTY-EIGHTH: If Tenant is unable to obtain a permit for Tenant's work or a
certificate of occupancy due to any violation of law arising prior to delivery
of possession of the demised premises to Tenant, Landlord shall correct such
violation, and the time which expires until such violation is corrected shall be
added on to Tenant's "free rent" period as set forth in Article Seventy-Second,
so that the period set forth in such Article shall be extended by one day for
every day the Tenant is unable to obtain such permit or certificate of occupancy
because of the violation.
SIXTY-NINTH: Tenant may assign this Lease or sublet all (but not part) of
the demised premises, without the prior written consent of (but on prior notice
to) Landlord to:
40
(1) any corporation or other entity controlling, controlled by or under
common control with, Tenant; or
(2) any entity resulting from a merger or consolidation with Tenant; or
(3) any entity succeeding to the business and assets and/or stock of
Tenant; or
(4) the transfer of stock between and among existing shareholders of Tenant
and their immediate families; or
(5) the transfer of stock in connection with a public offering of Tenant;
provided that, no such assignment, sublet or transfer shall release or relieve
Tenant (or any successor) from the further performance of the covenants set
forth in this lease.
SEVENTIETH: Tenant's obligations pursuant to Article Twenty-Fourth of this
lease shall apply only to the air conditioning system which serves the demised
premises occupied by Tenant pursuant to this lease.
SEVENTY-FIRST: Supplement Article Fifty-Third(d) of this lease, from time
to time, Landlord, on at least ten (10) days' prior written request by Tenant,
shall deliver to Tenant a written statement of the same type as Tenant is
required under said Article Fifty-Third(d) to deliver to Landlord, certifying
that the lease is unmodified and in full force and effect (or, if modified,
identifying such modifications), and stating the dates to which rent and other
charges have been paid and that, to Landlord's knowledge, there are no defaults
by Tenant under the lease (or, if there are defaults to which Landlord has
knowledge, specifying the nature of such defaults).
SEVENTY-SECOND: Notwithstanding anything contained in the lease to the
contrary, Tenant shall be entitled to an abatement of the fixed annual rent for
the first twelve (12) months of the term of the lease; provided that Tenant
shall be responsible to pay submetered electric and other miscellaneous charges
on the commencement of the term of the lease. The lease shall not be deemed to
have commenced until such time as Landlord substantially completes the word
delineated in Article Sixty-Second and delivers possession of the demised
premises to Tenant in vacant and broom clean condition; provided that the term
of this lease shall nonetheless expire on January 31, 2008.
SEVENTY-THIRD: Tenant agrees to refurbish the existing bathroom on the 7th
floor of the building as part of Tenant's initial work, and, upon the completion
of such refurbishing in compliance with all governmental and fire underwriters'
requirements, Landlord shall reimburse Tenant up to $40,000.00 of the documented
costs actually paid by Tenant for any leasehold improvements (which shall
exclude, without limitation, the cost of architects, designers, engineers,
attorneys, accountants, permits and other "soft costs). Tenant shall promptly
obtain all final governmental and fire underwriters' approvals or certificates
evidencing the completion of such work and shall furnish copies thereof to
Landlord.
41
SEVENTY-FOURTH: Landlord and Tenant represent to one another that they had
no conversations or negotiations with any broker other than Newmark and Company
Real Estate, Inc. (the "Broker") concerning this Agreement. Landlord and Tenant
agree to indemnify, defend and hold harmless the other against and from all
costs, expenses, losses and liabilities, including, without limitation,
reasonable attorneys' fees and expenses, resulting from any breach of their
representations set forth in this Article. Landlord shall pay any commission due
the Broker pursuant to a separate agreement between Landlord and Broker.
SEVENTY-FIFTH: In the event of any conflict between any of the provisions
of this Rider and any of the provisions, printed or typewritten, of the printed
portion of this lease, the provisions of this Rider shall control.
42
