STANDARD FORM OF OFFICE LEASE The
Real Estate Board of New York, Inc.
Agreement of Lease, made as of this 8th Day of July of 1999, between A.M.
Property Holding Corp., as agent for 65 Broadway Co., LLC, with principal
offices at 000 0xx Xxx., 00xx Xx., Xxx Xxxx, XX party of the first part,
hereinafter referred to as OWNER, and Xxxxxxxxxxx.xxx, Inc. party of the second
part, hereinafter referred to as TENANT.
Witnesseth: Owner hereby lease to Tenant and Tenant hereby hires from Owner Unit
507 on the fifth floor in the building known as 65 Broadway in the borough of
Manhattan, City of New York, for the term of 7 years and 3 months (or until such
term shall sooner cease and expire as hereinafter provided) to commence on the
1st day of October of nineteen hundred and ninety-nine, and to end on the 31st
day of December two-thousands and seven both dates inclusive, at an annual
rental rate of See Annexed Rider which Tenant agrees to pay in lawful money of
the United States which shall be legal tender in payment of all debts and dues,
public and private, at the time of the payment, in equal monthly installments in
advance on the first day of each month during said term, at the office of Owner
or such other place as Owner may designate, without any set off deduction
whatsoever, except that Tenant shall pay three monthly installment(s) on the
execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or thereafter,
Tenant shall be in default in the payment of rent to Owner pursuant to the terms
of another lease with Owner or with Owner's predecessor in interest. Owner may
at Owner's option and without notice to Tenant add the amount of such arrears to
any monthly installment of rent payable hereunder and the same shall be payable
to Owner as additional rent. The parties hereto, for themselves, their heirs,
distributes, executors, administrators, legal representatives, successors and
assigns, hereby covenant as follows:
RENT: 1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY: 2. Tenant shall use and occupy demised premises for Office Space and
for no other purpose.
TENANT ALTERATIONS: 3. Tenant shall make no changes in or to the demised
premises of any nature without Owner's prior written consent of Owner, and to
the provisions of this article. Tenant, at Tenant's expense, may make
alterations, installations, additions or improvements which are non-structural
and which do not affect utility services or plumbing and electrical lines, in or
to the interior of the demised premises by using contractors or mechanics first
approved in each instance by Owner. Tenant shall, before making any alterations,
additions, installations or improvements, at its expense, obtain all permits,
approvals and certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval thereof and shall
delivery promptly duplicates of all such permits, approvals and certificates to
Owner and Tenant agrees to carry and will cause Tenant's contractors and
sub-contractors to carry such xxxxxxx'x compensation, general liability,
personal and property damage insurance as Owner may require. If any mechanic's
lien is
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filed against the demised premises, or the building of which the same forms a
part, for work claimed to have been done for, or materials furnished to, Tenant,
whether or not done pursuant to this article, the same shall be discharged by
Tenant within thirty days thereafter, at Tenant's expense, by payment or filing
the bond required by law. All fixtures and all paneling, partitions, railings,
and like installations, installed in the premises at any time, either by Tenant
or by Owner on Tenant's behalf, shall, upon installation, become the property of
Owner and shall remain upon and be surrendered with the demised premises unless
Owner, by notice to the Tenant no later than twenty days prior to the date fixed
at the termination of this lease, elects to relinquish Owner's right thereto and
to have them removed by Tenant, in which event the same shall be removed from
the premises by Tenant prior to the expiration of the lease, at Tenant's
expense. Nothing in this Article shall be construed to give Owner title to or to
prevent Tenant's removal of trade fixtures, moveable office furniture and
equipment, but upon removal of any such from the premises or upon removal of
other installations as may be required by Owner, Tenant shall immediately and at
its expense, repair and restore the premises to the condition existing prior to
installation and repair any damage to the demised premises or the building due
to such remove. All property permitted or required to be removed by Tenant at
the end of the term remaining in the premises after Tenant's removal shall be
deemed abandoned and may, at the election of Owner, either be retained as
Owner's property or may be removed form the premises by Owner, at Tenant's
expense.
MAINTENANCE AND REPAIRS: 4. Tenant shall throughout the term of this lease, take
good care of the demised premises and the fixtures and appurtenances therein.
Tenant shall be responsible for all damage or injury to the demised premises or
any other part of the building of the building and the systems and the equipment
thereof, whether requiring structural or nonstructural repairs caused by or
resulting form carelessness, omission, neglect or improper conduct of Tenant.
Tenant's subtenants, agents, employees, invitees or licensees, or which arise
out of any work, labor, service or equipment done for our supplied to Tenant or
any subtenant or arising out of the installation use or operation of the
property or equipment of Tenant or any subtenant. Tenant shall also repeal all
damage to the building and the demised premises caused by the moving of Tenant's
fixtures, furniture's and equipment. Tenant shall promptly make at Tenants
expense all repairs in and to the demised premises for which Tenant is
responsible using only the contractor for the per trade submitted by owner. Any
other repairs in or to the building or the facilities and systems thereof for
which Tenants is responsible shall be performed by Owner at the Tenant's
expense. Owner shall maintain in good working order and repair the exterior and
the structural portions of the building, including the structural portions of
its demised premises, and the public portions of the building interior and the
building plumbing, electrical, heating and ventilating systems (to the extent
such systems presently exist) serving the demised premises. Tenant agrees to
give prompt notice of any detective condition in the premises for which Owner
may be responsible hereunder. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising form Owner or others
making repairs, alterations, additions or improvements in or to any portion of
the building or the demised premises or in and to the failure of Owner to comply
with covenant of this or any other article of this be by way of an action for
damages for breach of contract. The provisions of this Article 4 shall not apply
in the case of fire or other casualty, which are dealt with in Article 9 hereof.
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WINDOW CLEANING: 5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned form the outside in violation
of Section 202 of the Labor Law or any other applicable law or of the Rules of
the Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS: 6. Prior to the commencement
of the lease term if Tenant is then in possession and at all times thereafter,
Tenant, at Tenant's sole cost and expense, shall promptly comply will all
present and future laws, orders and regulations of all state, federal, municipal
and local governments, departments, commissions and boards and any direction of
any public officer pursuant to law, and all orders rules and regulations of the
New York Board of Fire Underwriters, Insurance Services Office, or any similar
body which shall impose any violation, order or duty upon Owner or Tenant with
respect to the demised premises, whether or not arising out of Tenant's use or
manner of use thereof, (including Tenant's permitted use) or with respect to the
building if arising out of Tenant's use or manner of use of the premises or the
building (including the use permitted under the lease). Nothing herein shall
require Tenant to make structural repairs or alterations unless Tenant has, by
its manner of use of the demised premises or method of operation therein,
violated any such laws, ordinances, orders, rules, regulations or requirements
with respect thereto. Tenant may, after securing Owner to Owner's satisfaction
against all damages, interest, penalties and expenses including but not limited
to, reasonable attorney's fees, by cash deposit or by surely bond in an amount
and in a company satisfactory to Owner, contest and appeal any such laws,
ordinances, orders, rules, regulations, or requirements provided same is done
with all reasonable promptness and provided such appeal shall not be subject
Owner to prosecution for a criminal offense or constitute a default under any
lease or mortgage under which Owner may be obligated, or cause the demised
premises or any part thereof to be condemned or vacated. Tenant shall nor do or
permit any act or thing to be done in or to the demised premises which is
contrary law, or which will invalidate or be in conflict with public liability,
fire or other policies of insurance at any time carried by or for the benefit of
Owner with respect to demised premises or the building of which the demised
premises for a part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. Tenant shall knot keep
anything in the demised premises except as not or hereafter permitted by the
Fire Department, Board of Fire Underwriters, Fire Insurance Rating Organization
or other authority having jurisdiction, and then only in such manner which will
increase the insurance rate for the building or any property located therein
over that in effect prior to the commandment of Tenant's occupancy. Tenant shall
pay all costs, expenses, fines, penalties, or damages which may be imposed upon
Owner by reason of Tenant's failure to comply with the provisions of this
article and if by reason of such failure to comply with provisions of this
article and if by reason of such failure the fire insurance rate shall at the
beginning of this lease or at any time thereafter, be higher than it otherwise
would be, then Tenant shall reimburse Owner, as additional rent hereunder for
that portion of all fire insurance premiums thereafter paid by owner which shall
have been charged because of such failure by Tenant. In action or proceeding
wherein Owner and Tenant are parties a schedule or "make-up" of rate for the
building or demised premises issued by the New York Fire Insurance Exchange, or
other body making fire insurance rates applicable to said premises shall be
conclusively evidence of the facts therein stated and of the several items and
charges in the fire insurance's rates then applicable to said premises. Tenant
shall
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not place a load upon any floor of the demised premises exceeding the floor load
per square foot area which it was designed to carry and which is allowed by law
Owner reserves the right to prescribe the weight and position of all safes
business machines and mechanical equipment. Such installations shall be placed
and maintained by Tenant, at Tenant's expense, in setting sufficient in Owner's
judgment, to absorb and prevent vibration, noise and annoyance.
SUBORDINATION: 7. This lease is subject and subordinate to all ground now or
hereafter or underlying leases and to all mortgagees which may now or hereafter
affect such leases or the real property of which demises premises are a part and
to all renewals, modifications, consolidations, replacements and extensions of
any such underlying leases and mortgages. This clause shall be self-operative
and no further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgages, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
PROPERTY LOSS, DAMAGE REIMBURSEMENT INDEMNITY: 8. Owner or its agent shall not
be liable for nay damage to property of Tenant or of others damage to property
of Tenant or of others entrusted to employees of the building, not for loss of
or damage to any injury or damage to persons or property resulting from any
cause of whatsoever nature, unless caused by or due to the negligence of Owner,
its agents servants or employees. Owner or its agents will not be liable for any
such damage caused by other tenants or persons in, upon or about said building
or caused by operations in construction of any private, public or quasi public
work. If any time any windows of the demised premises are temporarily closed,
darkened or bricked up (or permanently closed, darkened or bricked up, if
required by law) for any reason whatsoever including, but not limited to Owner's
own acts, Owner shall not be liable for any damage Tenant may sustain thereby
and Tenants shall not be entitled to any compensation there for nor abatement or
diminution of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall indemnify and save harmless
Owner against and from all liabilities, obligations, damages penalties, claims,
costs and expenses for which owner shall not be reimbursed by insurance,
including reasonable attorneys fees, paid, subcontractors, employees, invitees,
or licenses, of any covenant or condition of this lease or the carelessness,
negligence or improper conduct of the Tenant. Tenant's agent contractor's
employees invites or licenses of any sub- tenant. In case any action or
proceeding is brought against Owner, will at Tenant's expense resist or defiant
such action or proceeding by counsels approved by Owner in writing such approval
not to be unreasonably withheld.
DESTRUCTION FIRE AND OTHER CASUALTY: 9. (a) If the demised premises or any part
thereof shall be damaged be fire or other casualty. Tenant shall give immediate
notice thereof to Owner and this lease shall continue in full force and effect
except as hereinafter set forth. (b) If the demised premises are partially
damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent and other
items of additional rent, until such repair shall be substantially completed,
shall be apportioned from the day following the causality according to the part
of the premises which usable. (c) If the demised premises are totally damaged or
rendered wholly unusable by fire or other casualty then the rent and other items
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of additional rent as hereinafter expressly provided shall be proportionately
paid up to the time of the casualty and thenceforth shall cease until the date
when the premises shall have been repaired and restored by Owner (or sooner
reoccupied in part by Tenant then rent shall be apportioned as provided in
subsection (b) above), subject to Owner's right to elect not to restore the same
as hereinafter provided. (d) If the demised premises are rendered wholly
unusable or (whether or not the demised premised are damaged in whole or in
part) if the building shall be so damaged that Owner shall decide to demolish it
or to rebuild it then in any such events. Owner may elect to terminate this
lease by written notice to Tenant given within 90 days after such fire a
casualty or 30 days after adjustment of the insurance claim for such fire or
casualty whichever specific a date for the expiration of the lease, which date
shall not be more than 60 days after the giving of such notice, and upon the
date specified in such notice the term of this lease shall expire as fully and
completely as if such date were the date set forth above for the termination of
this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Landlord's rights and remedies against Tenant
under the lease provision in effect prior to such termination and any rent owing
shall be paid up to such date and any payment of rent made by Tenant which were
on account of any period subsequent to such date shall be returned to Tenant.
Unless Owner shall serve a termination notice as provided for herein, Owner
shall make the repairs and restorations under the conditions of (b) and (c)
hereof, with all reasonable expedition subject to delays due to adjustment of
insurance claims, labor troubles and causes beyond Owner's control. After any
such casualty Tenants shall cooperate with Owner's restoration by removing form
the premises as promptly as reasonably possible, all of Tenant's salvageable
inventory and moveable equipment, furniture and other property. Tenant liability
for rent shall resume five (5) days after written notice from Owner that the
premises are substantially ready for Tenant's occupancy. (e) Nothing contained
herein above shall relieve Tenant form liability that may exist as a result of
damage from fire or other casualty. Notwithstanding the foregoing including
Owner's obligation to restore under subparagraph (b) above, each party shall
look first to any insurance in its favor making any claim against the other
party for recovery for loss or damage resulting from fire or other casualty, and
to the extent permitted by law, Owner and Tenant each hereby releases and waives
all right of recovery with respect to subparagraphs (b), (d), and (e) above,
against the other or any one claiming through rounder each of them by way of
subrogation or otherwise. The release and waiver herein referred to shall be
deemed to include any loss or damage to the demised premises and/or to any
personal property, equipment, trade fixtures, goods and merchandise located
therein. The foregoing release and waiver shall be in force only if both
releaser insurance policies contain a clause providing that such a release or
waiver shall invalidate the insurance. If and to the extent that such party
benefitting from the waiver shall pay such premium within ten days after written
demand or shall be deemed to have agreed that the party obtaining insurance
coverage shall be free of any further obligation under the provisions hereof
with respect of waiver of subrogation. Tenant acknowledges that Owner will not
carry insurance or Tenant's furniture and/or furnishing or any fixtures or
equipment improvements, or removable by Tenant and agrees that Owner will not be
obligate to repair any damage thereto or replace the same. Tenant hereby waives
the provisions of Section 227 of the Real Property Law and agrees that the
provisions of this article shall govern and control in lieu thereof.
EMINENT DOMAIN: 10. If the whole or any part of the demised premise shall be
acquit or condemned
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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 form the date of title
vesting in such proceeding and Tenant shall have no claim for the value of any
unexpired term of said lease and assigns to Owner, Tenant's entire interest in
any such award. Tenant shall have the right to make an independent claim to the
condemning authority for the value of Tenant's moving expenses and personal
property, trade fixtures and equipment provided Tenant is entitled pursuant to
the terms of the lease to remove such property, trade fixture and equipment at
the end of the term and proved further such claim does not reduce Owner's award.
ASSIGNMENT MORTGAGE: 11. Tenant for itself, its heirs, distributors executors,
administrators, legal representative successor and assigns expressly covenants
that it shall not assign mortgage or encumber this agreement not underlet or
suffer or pert the demised premises or nay part thereof to be used by others,
without the prior written consent of Owner in each instance. Transfer of the
majority of the stock of a corporate Tenant on the majority partnership interest
of a partnership Tenant shall be deemed an assignment. If this lease be assigned
or if the demise premise or any part thereof by underlet or occupied by anybody
other than Tenant Owner may, after default by Tenant, collect rent form
assignee, under-tenant or occupant and apply the net amount collected to the
rent herein reserve but not 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 convenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting
ELECTRIC CURRENT: 12. Rates and conditions in respect to submetering ore rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all time its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion reasonable exercised will overload such installations or interfere with
the use thereof by other tenants of the building. The change at any time of the
character of electric service shall in no wise make Owner liable or responsible
to Tenant, for any loss damages or expenses, which Tenant may sustain.
ACCESS TO PREMISES: 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any time and
at other reasonable times to examine the same and to make such repairs
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which owner may deem necessary and reasonably desirable to the demised premises
or to any other portion of the building or which Owner may elect to perform.
Tenant shall permit Owner to use and maintain and replace pipes and conduits in
and through the demised premises and to erect new pipes and conduits therein
provided they are concealed within the walls, for floor, or ceiling. Owner may,
during the progress of any work in the demised premises take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption
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of business or otherwise. Throughout the term hereof Owner shall have the right
to enter the demised premises at reasonable hours for the purpose of showing the
same to prospective purchasers or mortgagees of the building and during the last
six months of the term for the purpose of showing the same to prospective
tenants. If Tenant is not present to open and permit an entry into the demised
premises. Owner or Owner's agents may enter the same whenever such entry may be
necessary or permissible by master key or forcibly and provided reasonable care
is exercised to safeguard Tenant's property, such entry shall not render Owner
or its agents liable therefor or, nor in any event shall the obligations of
Tenants hereunder be affected. If during the last month of the term tenant shall
have removed all or substantially all of Tenant's property there from Owner may
immediately enter, alter, or redecorated, renovate the demised premises without
limitation or abatement of rent, or incurring liability to Tenants for any
compensation and such act shall have no effect on this lease or Tenant's
obligations hereunder.
VAULT 14. No Vaults, vault space or area, weather or not enclosed or covered,
not Vault Space within the property line of the building is leased hereunder,
anything Area contained in or indicated on any sketch, blue print or plan, or
anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/ or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by and
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant.
OCCUPANCY 15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are apart. Tenant has inspected the premises and accept them as
is, subject to the riders annexed hereto with respect to Owner's work, if any.
In any event Owners makes no representation as the condition of the premises and
Tenant agrees to accept the same subject to violations, weather or not of
record.
BANKRUPTCY 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may can- called by Owner by the sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events: (1) the commencement of a case in bankruptcy or under
the laws of any state naming Tenant as the debtor; or (2) the making of the
tenant an assignment or any other arrangement for the benefit of the creditors
under any state statue. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statue or order of court, shall therefore be
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with Its
terms, the provisions of this Article 16. shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of this
lease pursuant to (a) hereof,
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Owner shall forthwith, notwithstanding any other provisions of this lease to the
contrary, be entitled to recover from Tenant as and for liquidated damage an
amount equal to the difference between the rent reserved hereunder for the
unexpired portion of the term demised and the fair and reasonable rental value
of the demised premises for the same period. In the computation of such damages
the 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 the Owner for the
unexpired term of said lease, or any part thereof before presentation of proof
of such liquidated damages to any court, commission or tribunal the amount of
rent reserved upon such re-letting shall be deemed to be the fair an the
reasonable rental value for the part or the whole of the premises so re-let
during the term of the re- letting. Nothing herein contained shall limit or
prejudice the right of the Owner to prove for and obtain as liquidated damages
by reason of such termination an amount equal to the maximum allowed by the
statue or rule of law in effect at the time when, and weather or not such amount
be greater, equal to, or less that the amount of the difference referred to the
above.
DEFAULT 17. (1) If Tenants defaults in fulfilling any of the covenants of this
lease other then covenants for the payment of rent or additional rent, or if the
demises premises become vacant or deserted: or if any execution or attachment
shall be issued against Tenant or any of Tenant's property whereupon the demised
premises shall be taken or occupied by someone other than Tenants: or if this
lease be rejected under $235 of Title 11 of the US Code: (bankruptcy code) or if
Tenants shall fail to move into or take possession of the premises within thirty
(30) days after the commencement of terms of this lease, then, in anyone or more
of such events, upon Owner serving a written fifteen(15) days notice upon,
Tenant specifying the nature of said default and upon the expiration of said
fifteen (15) days, if Tenant shall have failed to comply with or remedy such
default, or if the said default or omission complained of shall be of nature
that the same cannot be completed 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 therefore with reasonable
diligence and in good faith, proceed to remedy or cure such default, then Owner
may serve a written five (5) days' notice of cancellation of this lease upon
Tenant, and upon the expiration of five(5) days' this lease and the term
thereunder shall end and expire as fully and completely as if the expiration of
such five (5) day period were the day herein definitely fixed for the end and
expiration of this lease and the term thereof and Tenant shall then quit and
surrender the demised premises to Owner but Tenant shall remain liable as
hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and the item
shall expire as aforesaid: or if Tenant shall make default in the payment of the
rent reserved herein or any item additional rent herein mentioned or any part of
either or in make in other payment herein required: then and in any of such
events Owner may without notice, re- enter the demised premised either by force
or otherwise, and dispossess Tenant by summary proceedings or otherwise, and the
legal representation of Tenants 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
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hereunder prior to the date fixed to commencement of any renewal of extension of
this lease, Owner may cancel and terminate such renewal or extension agreement
by written notice.
REMEDIES OF 18. in case of any such default, re-try, expiration and /or
dispossess Owner and by summary proceedings or other wise, (a) the rent shall
become Waiver of due thereupon and be paid up to the time of such re-entry,
Redemption: dispossesses and/ or expiration, (b) Owner may re-let the premises
or otherwise, for a any part or parts thereof, either in the name of Owners or
otherwise, for a term or terms, which may at Owners option be less than or
exceed the period which would otherwise have constituted the balance of the term
of this lease and may grant concessions or free rent or charge a higher rental
than that in this lease, and/or Tenant or the legal representatives of Tenant
shall also pay Owner as Liquidated damages for the failure of Tenant to observe
and perform said Tenant's covenants herein contained any deficiency between the
rent hereby reserved and /or covenanted to be paid and the net amount, if any,
of the rents collected on account of the lease or lease of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the premises or any
part or parts thereof shall not release or affect Tenant's liability for
damages, In computing such liquidated damages there shall be added to the said
deficiency such expenses as Owner may incur in connection with re-letting, such
as legal expenses, reasonable attorneys' fees, brokerage, advertising and for
keeping the demised premises in good order or for preparing the same for the
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenants on the rent day specified in this lease and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any subsequent month by similar
proceeding. Owner in putting the demised premises in good order or preparing the
same for re-rental may, at Owners option, make such alterations, repairs,
replacements, and/or decoration in the demised premises as Owner in Owner's sole
judgment, considers advisable and necessary for the purpose of re-letting the
demised premises and the making of such alterations, repairs, replacement and/or
decorations shall not operate or be construed to release Tenants from liability
hereunder as aforesaid. Owner shall in no event 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 collected the rent therefore under such
re-letting, and in no event shall Tenant be entitled to receive any excess if
any, of such net rents collects over the sums payable by Tenant to Owner here
under. In the event of a branch or threatened breach by Tenant of any of the
covenant provisions or hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for, Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted o dispossessed for any cause, or In the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
FEES AND EXPENSES 19. If tenants shall default in the observance of performance
of any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, after
notice if required and upon expiration of any applicable
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grace period if any, (except in an emergency) then, unless otherwise provided
elsewhere in this lease, Owner may immediately or at any time thereafter and
without notice perform the obligation of Tenant thereunder, if Owner, in
connection with foregoing or in connection with any default by Tenant in the
covenant to pay rent hereunder, makes any expenditures or incurs any obligations
for the payment of money, including but not limited reasonable attorneys fees,
in instituting, prosecuting or defending any action or proceeding, and prevails
in any such action or proceeding then Tenants will reimburse Owner for such sums
so paid or obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be deemed to be additional rent
hereunder and shall be paid Tenant to Owners within ten (10) days rendition of
any xxxx or statement to Tenant therefor. If Tenants lease term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Owner, as damages.
BUILDING ALTERATION AND MANAGEMENT 20. Owner shall have the right at any time
without the same constituting an eviction and without the incurring liability to
Tenant therefor to change the arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators stairs, toilets or public
parts of the building and to change the name, number or designation by which the
building may be known. There shall be no allowance to Tenant for diminution of
rental value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or other Tenants making any
repairs in the building or any such alterations, additions, and improvements.
Further more, Tenants shall not have any claim against Owner by reason of
Owner's imposition of such control of the manner of access to the building by
Tenants social or business visitors as the Owner may deem necessary for the
security of the building and its occupants.
NO REPRESENTATIONS BY OWNER 21. Neither Owner nor Owners agents have made any
representations or promises with respect to the physical conditions of the
building, the land upon which it is erected or the demised premises, the rents
lease, expenses of operation or any other matter or thing affecting or related
to the premised expected as here expressly set forth and no rights, casements or
licenses are acquired by Tenant by implications or otherwise except as expressly
set forth in the provision of this lease. Tenants has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" and acknowledges that the taking of possession
of the premises by Tenants shall be conclusive evidence that the said premises
and the building of which the same from a part were good and satisfactory
condition at the time such possession was so taken, except as to Tenant defects.
All understanding and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between owner and Tenant and any executory agreement hereafter made
shall in ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement in writing and signed by
the party against whom enforcement of the charge, modification, discharge or
abandonment is sought.
END OF LEASE TERM 22. Upon the expiration or other termination of the term of
this lease Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease expected, and Tenant
shall remove all its property, Tenant's obligation to observe or perform this
10
covenant shall survive the expiration or other termination of this lease. If the
last day of this lease or any renewal thereof, fall on Sunday this ease shall
expire at noon on the proceeding Saturday unless it be a legal holiday in which
case it shall expire at noon on the proceeding business day.
QUIET ENJOYMENT 23. Owners covenants and agrees with Tenants that upon Tenant
paying rent and additional rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed, Tenants
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless to the terms and conditions of this lease including, but not
limited to Article 31 hereof and to the ground lease, underlying lease and
mortgages hereinbefore mentioned.
FAILURE TO GIVE POSSESSION 24. if Owners is unable to give possession of the
demised premises on the date of the commencement of term hereof, because of the
holding-over or retention of possession of any tenant, undertenant or occupants
or if the demised premises are located in the building being constructed,
because such building has not been sufficiently completed to make the premises
ready for occupancy or because of the fact that a certificate of occupancy has
not been procured or for any other reason, Owners shall not be subject to any
liability for failure to give possession on said date and the validity of the
lease shall not be impaired under such circumstances, not shall the same be
construed in any wise to extend the term of this lease, but the rent payable
hereunder shall be abated (provided Tenant is not responsible for Owner's
inability to obtain possession or complete construction) until after Owner shall
have given Tenant written notice that the Owner is able to deliver possession in
condition required by this lease. If permission is given to Tenant to enter into
the possession of the demised premises or occupy premises other than the demised
premises prior to the date specified as the commencement of the term of this
lease, Tenant covenants and agrees that such possession and/or occupancy shall
be deemed to be under all terms, covenants, conditions and provisions of this
lease except the obligation to pay the fixed annual rent set forth in the
preamble to this lease. The provision of this article are intended to constitute
"an express provision to the contrary" within the meaning of Section 223-a of
the New York Real Property law.
NO WAIVERS 25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulation, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent and/or additional rent with knowledge of the breach of
any covenant of this lease shall not be deemed waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a lesser amount that the monthly rent herein Stipulated shall be deemed to be
other that on account of the earlier stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. No act or thing done by Owner
or Owners agents during this term hereby demised shall be deemed an acceptance
of surrender of said premises and no agreement to accept such surrender shall be
valid unless in writing
11
signed by Owner. No employee of Owner or Owner's agent shall have any power to
accept the keys of said premises prior to the termination of the lease and the
delivery of keys to any such agent or employee shall nor operate as a
termination of the lease or a surrender of the premises.
WAIVER OF TRAIL BY JURY: 26. It is mutually agreed by and between Owners and
Tenants that the respective parties hereto shall and they hereby do waiver trial
by jury in any action proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matter whatsoever arising out of or way connected with this lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of said premises,
and any emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Owner commences any proceeding or action for
possession including a summary proceeding for possession of the premises. Tenant
will not interpose any counterclaim of whatever Nature or description in any
such proceeding including a counterclaim under Article 4 except for statutory
mandatory counterclaims.
INABILITY TO PERFORM 27. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenant and agreement hereunder on part
of Tenant to be performed in no wise be affected, impaired or excused because
Owner is unable to fulfill any of its obligations under this lease or to supply
or is delayed in supplying any service expressly or impliedly to be supplies or
is unable to make, or is delayed in making any repair, additions alteration or
decorations or is unable to supply or delayed in supplying any equipment,
fixture or other material if Owner is prevented or delayed from so doing reason
of strike or labor trouble or any cause whatsoever including, but not limited to
government preemption or restrictions or by reason of any rule, order of
regulation of any department or subdivision thereof any government agency or by
reason of the conditions which have been or are affected, either directly or
indirectly, by war or other emergency.
XXXX AND NOTICE 28. Expect as otherwise in this lease provided a xxxx,
statement, notice or communication which Owners may desire or to 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 address
to Tenant at the building of which the demised premises from a part or at the
last known residence address or business address Tenant or left at any of the
aforeside premises addressed to Tenant, and the time of the rendition of such
xxxx or statement and of the giving of such notice or communication shall be
deemed to be time when the same is delivered to Tenants, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registration or certified mail addressed mail to Owner at the first hereinabove
given or such other address, as Owner shall designate by written notice.
SERVICES PROVIDED BY THE OWNER 29. As long as Tenant is not in default under any
of the covenants of this lease beyond the applicable grace period provided in
this lease for curing of such default, Owner shall provide: (a) necessary
elevator facilities on business days from 8 am to 6 pm and have one elevator
subject to call at all other times (b) heat to the demised premises when and as
required by law, on business days from 8 am to 6 pm; water for ordinary lavatory
purposes, but if Tenant uses or consumes water of any other purposes or in
unusual quantities (of which fact
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Owner shall be the sole judge), Owner may install a water meter at Tenant's
expense which Tenant shall therefore maintain at Tenant's expense in good
working order and repair register such water consumption and Tenant shall pay or
water consumed as shown on said meter as additional rent as and when bills
rendered. (d) cleaning service for the demised premises on business days at
Owner's expense provided that the same are kept in order by Tenant. If however,
said premises are to be kept clean by Tenant, it shall be done at Tenant sole
expense, in a manner reasonable satisfactory to Owner and no one other than
persons approved by Owner shall be permitted to enter said premises or the
building of which they are a part for such purpose. Tenant shall pay Owner the
cost of removal of any of Tenant's refuse and rubbish from the building: (e) if
the demised premises are service by Owner's air- conditioning/cooling and
ventilation system, air-conditioning/cooling will be furnished to Tenants from
May 15th through September 30th on business days (Mondays through Fridays,
holidays excepted) from 8:00 am to 6:00 pm and ventilation will be furnished on
business days during the aforesaid hours except when air conditioning/cooling is
being furnished as aforesaid. If Tenant requires air conditioning/cooling or
ventilation for more extended hours or Saturdays, Sundays or on holidays, as
defined under Owner's contract with Operating Engineers Local 94-94A. Owner will
furnish the same at Tenant expenses. Rider added to be added in respect to rates
and conditions for such additional service: (f) Owner reserves the right to stop
services of heating, elevators, pluming, air conditioning, electric, power
systems or cleaning of other services, if any, when necessary by reason of
accident or for repairs, alterations, replacement or improvements necessary or
desirable in the judgment of Owner for as long as may be reasonably required by
reason thereof, If the building of which the demised premises are a part
supplies manually operated elevator service, Owner at any time may substitute
automatic control elevator service and proceed diligently with alteration
necessary therefor without in any wise affecting this lease or the obligation of
Tenant hereunder.
CAPTIONS 30. 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 not
the intent of any provisions thereof.
DEFINITIONS: 31.The term "office" or 'offices" wherever used in this lease,
shall be a construed to mean premises used as a store or stores for the sale or
display, at any time of good, wares or merchandises, of any kind, or as a
restaurant, shop, booth, bootblack, or other stand, xxxxxx shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lesser, and as used in this lease means only the owner, the mortgage in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demises premises from
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby entirely freed and retrieved of all
covenants and obligations of Owner hereunder, and it shall be deemed and
constructed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligation of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning.
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The term " business days" as used in this lease shall exclude Saturday, Sunday
and all days as observed by the State or Federal Government as legal holidays
and those designated as holidays by the applicable Building service union
employees service contract or by the applicable Operating Engineers contact with
respect to HVAC service. Whatever it is expressly provided in this lease that
consent shall not be unreasonable withheld, such consent shall not be
unreasonable delayed.
ADJACENT: EXCAVATION SHORTAGE 32. If an excavation shall be made upon land
adjacent the demised premises, or shall be authorized to be made, Tenant shall
afford to the person Shortage 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 deemed necessary preserve the wall of the building of which
demised premises from a part from injury or damage and to support the same by
proper foundation without any claim for damages or indemnity against Owner, or
diminution or abatement of rent.
RULES AND REGULATIONS 33. Tenant and Tenants servants, employees agents,
visitors, and licenses shall observed faithfully, and comply strictly with, the
Rules and Regulations and such other further reasonable Rule and regulations as
Owner and Owners agents may from time to time adopt. Notice of any additional
rules or registration shall be given in such manner as Owner may elect. In case
Tenants disputes the reasonableness of any additional rule or Regulation
hereafter made or adopted by Owner or Owner's agents, the parties hereafter
agree to submit the question of the Reasonableness of such Rules or Regulations
for decision to the New York office of the American Arbitration Association,
whose determination shall be final and conclusive, upon the parties hereto. The
right to dispute the reasonableness of any additional Rules or Regulation upon
Tenant's part shall be deemed waived unless the same shall be asserted by
service of a notice, in writing upon Owner with fifteen (15) days after the
giving of notice thereof. Nothing.
RIDER OF THE LEASE DATED THE 8th DAY OF JULY OF 1999, BETWEEN A.M. PROPERTY
HOLDING CORPORATION AS AN AGENT FOR 65 BROADWAY CO., LLC AS LANDLORD AND
XXXXXXXXXXXX.XXX INC., AS TENANT.
1. NO CONFLICT: Wherever the terms, Covenants and conditions contained in the
printed portion of this Lease shall be in conflict with any of the terms,
covenants and conditions of this Rider, the additional clauses shall prevail.
2. DEFINITIONS AND CAPTIONS: As used in this Lease, each number (singular and
plural) shall include all numbers and each gender shall include all genders. The
captions headings, and marginal notes throughout this Lease are for convenience
of reference only and the words contained therein shall in no way be held or
deemed to define, limit, explain, modify, amplify, or add to the interpretation,
construction, or meaning of an), provision of, or the scope or intent of, this
Lease, nor in any way affect this Lease. Except as otherwise expressly stated,
each payment provided to be made by the Tenant shall be in addition to, and not
in substitution for, all other payments to be made by the Tenant to Landlord.
The term "PERSON" used herein means person, firm, association, or corporation,
as the case may be.
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3. GOVERNING LAW AND SEVERABILITY: The laws of the State of New York shall
govern the validity, performance, and enforcement of this Lease. The invalidity
or unenforceability of any provision of this Lease shall not affect or impair
any other provision. It any provision of this Lease is capable to two
constructions, one of which would render the provision invalid and the other of
which would make the provision valid, then the provisions shall have the other
meaning which renders it valid.
4. ELECTRIC: If electric current is supplied by Landlord, Tenant covenants and
agrees to purchase the same from the Landlord or Landlord's designated agent at
charge terms and rates equal to Landlord's ACTUAL cost for electric consumed by
Tenant, plus 12%. Said charges may be revised by Landlord in order to maintain
the return to Landlord produced under the foregoing in the event that the Public
Service Commission approves changes in the service classifications, terms, rates
or charges for such public utility during the term hereof. Where more than one
meter measures the service of the Tenant in the building, the services rendered
through such meter may be computed and billed separately in accordance with the
rate herein. Bills therefore shall be rendered at such times as Landlord may
elect. Landlord and its agents shall not in any way be liable or responsible to
Tenant for any loss, damage or expense which Tenant may sustain or incur if
either the quantity or character of electric services is changed or is no longer
available or suitable for Tenant's requirements. Any 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 demised premises or cause or create a dangerous injury
to the building or demised premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations, repairs or expense or
interfere without disturb other tenants or occupants. In addition to
installation of such riser or risers, Landlord will also at Tenant's sole
expense, install all other equipment proper and necessary in connection
therewith subject to the aforesaid terms and conditions. Tenant covenants and
agrees that at all times its use of electric current shall never exceed the
capacity of existing feeders to the building or the risers or wiring
installations. It is further covenanted and agreed by the Tenant to pay Landlord
within FIVE (5) days after rendition of any xxxx or statement to the Tenant
therefore, even it said xxxx is rendered on advance of said installations. If
any tax is imposed upon the Landlord's receipts from the sale or resale 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
xxxx of, and paid by Tenant to Landlord. Landlord's failure during the term of
this Lease to prepare and deliver any such statements or bills under this
Paragraph, or any provisions of this Lease, shall not in any way be deemed a
waiver of or cause Landlord to forfeit or surrender its rights to xxxx Tenant or
collect same, including, but not limited to, the Fixed Annual Rent or any amount
of Additional Rent, as the case may be, which may have become due pursuant to
this Lease. Tenant's liability for any amounts due under this Paragraph shall
survive the expiration or sooner termination of this Lease. If either the
quantity or character of the electrical service is changed by the utility
company supplying electrical service to the Building or is no longer available
or suitable for Tenant's requirement, no such change, unavailability or
unsuitability shall constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any abatement of diminution of the fixed annual
15
rent or additional rent, or relieve Tenant from any of its obligations under
this Lease or impose any liability upon Landlord, or its agents, by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business or otherwise. The foregoing arrangement shall also apply to the cost
for electric consumed by Tenant to operate its air condition unit(s).
5. REAL ESTATE TAX ESCALATION: a. Tenant shall pay, as additional rent, .53% of
any and all increases in real estate taxes covering the land and the building of
which the demised premises form a part. Said increases shall be the difference
between the amount charged during any Tax Year and the amount charged during the
Base Tax year. b. Tax year shall mean each period of twelve (12) months
commencing on the first day of July in which occurs any part of the term of this
Lease or any such other period of (12) twelve months occurring during the term
of this Lease as hereafter may be adopted as the fiscal year for real estate tax
purposes of the City of New York or any other governmental authority. c. Base
Tax year shall mean the Tax Year 1999-00. d. Tenant shall pay, as additional
rent, .53% of any costs and expenses including, without limitation, reasonable
counsel fees incurred by Landlord which result in a reduction of the assessed
value of the land and the building as proposed by the City of New York or any
other governmental authority for any Tax Year after the Base Tax Year to the
extent same do not exceed the amount of any refund obtained as a result of such
reduced valuation. Moreover, in the event Landlord obtains a refund under this
Article, Landlord shall pay a portion of such refund to Tenant in the same
proportion as the original tax was paid by Tenant to Landlord, less the cost of
obtaining such refund, including Landlord's legal fees, if said cost was not
paid by Tenant heretofore, but nothing herein contained shall be construed to
give Tenant the right to seek a reduction in tax nor the Landlord an obligation
to do so. e. Payment of additional rent pursuant to this Article shall be made
within five (5) days of written demand by Landlord to Tenant. f. The term "real
estate taxes" shall mean all taxes assessed or imposed at any time by the City
of New York or by any other governmental authority upon or against the land
and/or building of which the demised premises form a part, and also any tax or
assessment levied, assessed or imposed at any time by any governmental authority
in connection with the receipt of income rents from said land and/or building.
If due to a future change in the method of taxation, or in the taxing authority,
a franchise, license, income, transit, profit or other tax, fee, or governmental
imposition, however designated, shall be, levied, assessed or imposed against
Landlord in substitution, in whole or in part, for the real estate taxes, or in
lieu of, additional real estate taxes, then such franchise, license, income,
transit, profit, or other tax, fee or governmental imposition shall be deemed to
be included within the definition of "real estate taxes" for the purposes
hereof. g. any delay or failure of Landlord in billing any amount payable under
this Article shall not constitute a waiver or in any way impair the continuing
obligation of Tenant to make payments hereunder.
6. INSURANCE: Tenant, at its sole cost and expense, shall maintain at all times
during the term of this Lease and at all times when Tenant is in possession of
the demised premises, a commercial policy of general liability insurance in
which Landlord, Landlord's managing agent and Tenant are the named insureds for
any and all claims arising during the term of this Lease for damages or injuries
to inventory, fixtures, goods, wares, merchandise and property and/or for any
personal injury or loss of life, in, upon, or about the demised premises,
protecting Landlord, Landlord's managing agent, any Superior Lessor, any
mortgagees designated by Landlord, and Tenant against any liability
16
whatsoever occasioned by accidents on or about the demised premises or any
appurtenances thereto. Such policy is to be written by a good and solvent
insurance company, satisfactory to Landlord, in the amount of TWO MILLION
DOLLARS ($2,000,000.00) per occurrence (combined single limit), FOUR MILLION
DOLLARS ($4,000,000.00) in aggregate. Tenant agrees to deliver to Landlord a
certificate of endorsement of the aforesaid insurance policy and upon Tenant's
failure to provide and keep in force the aforementioned insurance, it shall be
regarded as a material default, entitling Landlord to exercise any and all
remedies provided by this Lease. a. Tenant shall deliver to Landlord such
policies or certificates of such policies prior to the commencement of the term
of this Lease. Tenant shall deliver to Landlord and any additional named
insureds all renewal policies or certificates at least thirty (30) days prior to
written notice of such cancellation or modification, including, without
limitation, any such cancellation resulting from non-payment of premiums.
Landlord shall have the right at any time to reasonably require Tenant to
increase the amount of insurance maintained by Tenant under this Article, so
that the amount thereof, as reasonably determined by Landlord, adequately
protects the interests of Landlord. b. Tenant shall obtain, at its own cost and
expense, naming both Landlord, Landlord's managing agent, and Tenant as named
insureds, theft and fire insurance for all personal property which may be
affixed to the realty now located in the leased premises and including any
future installations. c. Notwithstanding anything herein to the contrary,
nothing herein shall prevent Landlord from recovering in the event of fire or
loss under Landlord's fire or other insurance coverage for all betterments and
improvements by Tenant so affixed to the demised premises as to be considered
part of the realty under the law. d. Tenant hereby releases Landlord, Landlord's
partners or principals, disclosed or undisclosed, and its agents. and their
respective employees in respect to any claim occurring during the term of this
Lease and normally covered under a property, theft or fire insurance policy with
extended coverage endorsement in the form normally used in respect to similar
property in New York County. This waiver shall include any claim, including a
claim for negligence, which Tenant might otherwise have against Landlord,
Landlord's partners or principals, disclosed or undisclosed, and its agents and
their employees for loss, damage or destruction with respect to Tenant's
property by fire or other casualty (including rental value or business
interest). e. As required by Landlord, Tenant shall be required to use its
insurance proceeds towards replacing and restoring all betterments and
improvement in the demised premises. f. Tenant acknowledges that Landlord will
not carry insurance on Tenant's furniture and/or furnishings or any fixtures or
equipment, improvements of appurtenances removable by Tenant and agrees that
Landlord will not be obligated to repair any damage thereto or replace the same,
except as provided by the relevant portions of the New York General Obligations
Law
7. CLEANING, RUBBISH, REMOVAL AND ODORS a. Landlord shall provide to Tenant free
of charge daily garbage collection and weekly cleaning and vacuuming of the
demised premises, provided however, that in the event that Landlord is
temporarily unable to provide said service during the Lease term, said inability
shall not constitute a ground for Tenant to withhold payment of all rent and
additional rents due to Landlord under the terms of this Lease. b. Tenant shall,
in a manner satisfactory to Landlord, cause the demised premises thereof to be
neat and orderly. Tenant shall not permit any unusual or noxious odors to
emanate from the demised premises. Tenant will, within ten (10) days after
written notice from Landlord setting forth the specific condition complained of
by Landlord, install at its own cost and expense, reasonable control devices or
17
procedures to eliminate such odors, if any. In the event such condition is not
remedied within said ten-day period, Landlord may, at its discretion, either (a)
cure such condition and thereafter add the cost and expense incurred by Landlord
therefore to the next monthly rental to become due and Tenant shall pay said
amount as additional rent; or (b) treat such failure on Tenant's part to
eliminate such noxious odors as a material default hereunder entitling Landlord
to exercise any of its remedies under the terms of this Lease. Landlord shall
have the right to enter the demised premises upon reasonable, notice to inspect
same and ascertain whether they are clean and free of odors. c. Tenant covenants
that it will hold Landlord harmless against all claims, damages or causes of
action for damages arising after the commencement of the term of this Lease and
will indemnify Landlord for all such suits, orders or decrees and judgments
entered thereon brought on account of any such permeating from the demised
premises of unusual or objectionable odors or otherwise, and Tenant shall
further covenant to pay Landlord's reasonable attorney's fees and expenses made
necessary in connection with any claim or suit as aforesaid. If Landlord
requires Tenant to install reasonable control devices or procedures to eliminate
such odors, the material, size and location of such installations shall not
commence until plans and specification therefore have been submitted to and
approved by Landlord.
8. SORTING AND SEPARATION OF REFUSE AND TRASH: Tenant covenants and agrees, at
its sole cost and expense, to comply with all present and future laws, orders
and regulations of all state, federal, municipal and local governments,
departments, commissions and boards regarding the collection, sorting,
separation and recycling of all waste products, garbage, refuse and trash, and
otherwise. Tenant shall pay all costs, expenses, lines, penalties or damages
which may be imposed on Landlord or Tenant by reason of Tenant's failure to
comply with the provisions of this Article, and, at Tenant's sole cost and
expense, shall indemnity defend and hold Landlord harmless (including legal fees
and expenses from and against any actions, claims and suits arising from such
noncompliance, utilizing counsel satisfactory to Landlord.
9. EXCULPATION: Tenant shall only look to Landlord's estate and property in the
Building for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by Landlord
or its agents in the event of any default or breach by Landlord hereunder, and
to no other property or assets of Landlord or its agents, partners, or
principals, disclosed or undisclosed, for lien, levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this lease, the relationship of Landlord and Tenant hereunder or
tenant's use or occupancy of the demised promises; and if Tenant hereunder shall
acquire a lien on such property or other assets by judgment or otherwise, Tenant
shall promptly release such lien by executing and delivering to Landlord an
instrument to that effect prepared by Landlord.
10. INDEMNIFICATION: Tenant agrees to indemnify and save Landlord harmless
against and from any and all claims by or on behalf of any person or persons,
firm or firms corporation or occurrence whatsoever done by or on behalf of
Tenant or Tenant's agents, contractors, servants, employees, invitees, or
licensees, in or about the demised premises, and will further indemnify and save
Landlord. harmless against and from any and all claims arising from any breach
or default on the part
18
of Tenant in the performance of any covenants or agreements on the part of
Tenant to be performed, pursuant to the terms of the Lease, or arising from any
act or negligence to Tenant, or any of its agents, contractors, servants,
employees, invitees, or licensees, and from and against all costs, reasonable
counsel fees, expenses and liabilities incurred in or about any such claim or
action or proceeding brought thereon; and in any action or proceeding that be
brought against Landlord by reason of any such claim, Tenant, upon notice from
Landlord, covenants to defend, at Tenant's expense, such action or proceeding
by counsel reasonably satisfactory to Landlord whose consent shall not be
unreasonably withheld.
11. TENANT'S REPRESENTATION:
a. Tenant covenants that it will not do or suffer to be done in or upon said
premises any act or thing which shall damage the Landlord or its tenants, and
covenants that no business shall be carried on, nor any act or acts suffered or
permitted to be done on said premises that in any manner conflicts with, or is
contrary to, any law.
b. Tenant agrees that the value of the demised premises and the reputation of
Landlord will be seriously injured if the premises are used for any obscene or
pornographic purposes or any sort of commercial sex establishment. Tenant agrees
that Tenant will not bring or permit any obscene material on the premises, and
shall not permit or conduct any obscene, nude, or semi-nude live performances on
the premises, nor permit use of the premises for nude modeling, rap sessions, or
as a so-called rubber-goods shop, or as a sex club of any sort, or as a "massage
parlor." Tenant agrees further that Tenant will not permit any of these uses by
any sub lessee or assignee of the promises. Tenant agrees that it at any time
Tenant violates any of the provisions of this Article, such violation shall be
deemed a breach of a substantial obligation of the ease.
c. Tenant warrants, represents and agrees that it has no claims or causes of
action against Landlord, Landlord's principals or agents for any reason
whatsoever. Moreover, in further consideration for this Lease herein, Tenant and
its principals hereby release Landlord, Landlord's principals and agents from
any and all claims and/or causes of action, it any, that Tenants may have
against them, from the beginning of time until the date of the signing of this
Lease.
12. WAIVER OF COUNTERCLAIMS: Tenant hereby waives its right and agrees not to
interpose any counterclaim or set off, of whatever nature or description, in any
actions or proceedings which may be commenced by Landlord against Tenant to
recover rent, additional rent, other charges, or for damages or in connection
with any matters or claims whatsoever arising out of or in any way connected
with this Lease, or any renewal, extension, holdover, or modification thereof,
the relationship of Landlord and Tenant, or Tenant's use or occupancy of said
promises. This clause, as well as the "waiver of jury trial" provision of this
Lease shall survive the expiration, early termination, or cancellation of this
Lease or the term thereof. Nothing herein contained, however, shall be construed
as a waiver of Tenant's right to commence a separate action on a bona fide claim
against Landlord.
13. BUILDING DIRECTORY AND SIGNAGE: Tenant shall be provided one listing on the
Directory in the lobby of the building. The costs of changing any such listings
during the duration of this lease are to be borne by the tenant. Tenant shall be
provided one listing on the floor Directory.
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Tenant shall be provided a sign publishing it's occupancy uniform to and similar
in nature and size to those signs used throughout this building, on it's
entrance door or in proximity to it's doorway.
14. TENANT'S CERTIFICATE: Tenant shall, without charge, at any time and from
time to time, within ten (10) days after request by Landlord, certify by written
instrument to be prepared by Landlord, duly executed, acknowledged and delivered
to any mortgagee, assignee, or any mortgagor or purchase, or any proposed
mortgagee, assignee of any mortgagor or purchaser, or any other person, firm or
corporation specified by Landlord: a. that this Lease is unmodified and in full
force and effect (or, if there has been modification, that the same is in full
force and affect as modified and stating the modification); b. Whether or not to
Tenant's knowledge there are any existing claims against Landlord or any
defenses, which would prohibit or prevent Landlord from enforcing the provisions
of this Lease; and c. the dates, if any, to which the rental and other charges
hereunder have been paid in advance.
15. ASSIGNMENT AND SUBLETTING: a. In the event that Tenant desires to assign
this Lease or to sublet all or any part of the demised premises, Tenant shall,
before proceeding to attempt to so assign or sublet, notify Landlord in writing,
served with proof of delivery, of its desire and so offer to vacate the space
which it desires to sublease (whether all or part of the demised premises) or
the entire demised premises (in the case of an assignment) and to surrender the
same to Landlord. In the event that Landlord does not, in writing served with
proof of delivery, accept the foregoing offer of Tenant within 45 days after
said writing is delivered to Landlord, Tenant may proceed to attempt to assign
or sublet the demised premises in accordance with the provisions that follow
hereinafter. b. Tenant, for itself, its heirs, distributees executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, or mortgage or otherwise encumber, all or
any part of its interest in this Lease, sublet the demised premises, in whole,
or suffer or permit the demised premises or any part thereof to be used by
other, without the prior written consent of Landlord in each instance. if Tenant
shall desire to assign its interest in this Lease or to sublet all of the
Demised Premises, Tenant shall submit to Landlord a written request for
Landlord's consent to such assignment or subletting which shall be accompanied
by the following information: (i) the name and address of the proposed assignee
or subtenant; (ii) if Tenant desires to sublet a portion of the demised
premises, a description of the portion to be sublet together with a floor plan
thereof, (iii) the terms and conditions of the proposed assignment or
subletting; Bolivia the nature and character of the business of the proposed
assignee or subtenant and its proposed use of the Demised Premises and (v) the
current financial information and any other information Landlord may reasonably
request with respect to the proposed assignee or subtenant. Landlord shall not
unreasonably withhold its consent to the proposed assignment or subletting for
the use permitted in this Lease provided that: (1) The demised premises, shall
not, without Landlord's prior consent, have been listed or otherwise publicly
advertised for assignment or subletting at a rental rate lower that the higher
of (a) the Fixed Annual Rent and all Additional Rent then payable or (b) the
then prevailing rental rate for other space in the Building, the Tenant shall
not enter into any sublease at a lower rental rate than the Fixed Annual Rent
and all Additional Rent then payable absent landlord's consent; (2) Tenant shall
not be in default hereunder. (3) The proposed assignee or subtenant shall have a
financial standing, be of a character, be engaged in a business, and propose to
use the Demised Premises in a manner
20
consistent with the permitted use(s) and in keeping with the standards of the
Building and shall be a white-collar businessperson operating a fully legal
business concern. (4) The proposed assignee or subtenant shall not then be a
tenant, subtenant or assignee of any space in the Building, nor shall the
proposed assignee or subtenant to the knowledge of the tenant be a person or an
entity with whom Landlord is then negotiating to lease space in the Building, or
has negotiated within the prior six months. Such a prior contact between the
landlord and the proposed assignee or subtenant shall constitute good cause for
the landlord's objection to the assignment or sub tenancy and shall be
considered by the parties to be a bar to such a sub tenancy or assignment. (5)
In the case of a subletting, the subtenant shall be expressly subject to all
obligations of Tenant under this Lease and the further condition and restriction
that such sublease shall not be assigned, encumbered or otherwise transferred or
the Demised Premises further sublet by subtenant in whole or in part, or any
part thereof suffered or permitted by the subtenant to be used or occupied by
others, without the prior consent of the Landlord in each instance. (6) No
subletting shall and later than on:, (1) day before the Expiration Date of this
Lease. (7) At no time shall Tenant be permitted to sublet or assign any portion
of the premises more than six times (8) Tenant shall reimburse Landlord on
demand for any costs, including reasonable attorney's fees and disbursements
that may be incurred by Landlord in connection with Tenant's request for
assignment or sublease.
c. Tenant shall deliver to Landlord a copy of each sublease or assignment made
hereunder within ten (10) days after the date of its execution. Tenant shall
remain fully liable for the performance of all of the Tenant's obligations
hereunder notwithstanding any subletting or assignment provided for herein and,
without limiting the generality of all acts and omissions of any subtenant,
assignee or anyone claiming by, through, or under any subtenant or assignee
which shall be in violation of any of the obligations of this Lease, and any
such violation shall be deemed to be a violation by the Tenant. Notwithstanding
any assignment and assumption by the assignee of the obligations of the Tenant
hereunder, Tenant herein named, and each immediate or remote successor in
interest of Tenant herein named, shall remain jointly and severably (as a
primary obligor) liable with assignees and all subsequent assignees for the
performance of Tenant's obligations hereunder, and shall remain fully and
directly responsible and liable to Landlord for all acts and omissions on the
part of any assignee subsequent to it in violation of any of the obligations of
this Lease. d. Notwithstanding anything to the contrary contained in this Lease,
no assignment of Tenant's interest in this Lease shall be binding upon Landlord
unless the assignee, and, if the assignee is a partnership, the individual
partners thereof, shall execute and deliver to Landlord an agreement, in
recordable form whereby such assignee agrees unconditionally to sign a limited
guarantee in the form annexed hereto and to perform all the obligations of
Tenant hereunder and further expressly agrees that notwithstanding such
assignment the provisions of this Article shall continue to be binding upon such
assignee with respect to all future assignments and transfers. e. Any transfer
by operation of law or otherwise of the interest of Tenant in this Lease (in
whole or in part) or of a fifty (50%) percent or greater interest in Tenant
(whether stock, partnership interest or otherwise) shall be deemed an assignment
of this Lease within the meaning of this Article. (The issuance of shares of
stock to other than the existing shareholder shall be deemed to be a transfer of
such stock for the purposes of this Article). If there has been a previous
transfer of less than fifty (50%) percent interest in Tenant, any other transfer
of an interest in Tenant which would then result in an aggregate transfer of
greater than fifty (50%) percent interest in Tenant shall all be deemed an
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assignment of the interest of Tenant in this Lease within the meaning of this
Article. Tenant warrants and represents the present shareholders of any
outstanding shares of stock of the corporate Tenant is/are the following: XXX X.
XXXX.
f. In the event that Tenant fails to execute and deliver any assignment or
sublease to which Landlord consented under the provisions of this Article within
forty-five (45) days after the giving of such consent, then Tenant shall again
comply with all of the provisions of this Article before assigning its interest
in this Lease or subletting the Demised Premises.
g. The consent of Landlord to an assignment or a subletting shall not relieve
Tenant from obtaining the express consent in writing of Landlord to any further
assignment or subletting.
h. If Tenant's interest in this Lease be assigned, or if the Demised Premises or
any part thereof be sublet or occupied by anyone other than Tenant, Landlord may
collect rent from the assignee, subtenant or occupant and apply the net amount
collected to the Fixed Annual Rent and all Additional Rent herein reserved, but
no such assignment, subletting, or occupancy or collection shall be deemed a
waiver of the provisions of this Article or of any default hereunder or the
acceptance of the assignee, subtenant or occupant as Tenant, or a release of
Tenant from further observance of performance by Tenant of all of the covenants,
conditions, terms and provisions on the part of Tenant to be performed or
observed.
i. If Tenant desires to assign all of the Demised Premises, Tenant agrees to use
Landlord's exclusive agent for Such purposes, or Landlord's then managing agent
and Tenant shall pay to such agent upon execution of such sublease, assignment,
release or other disposition a commission computed in accordance with such
exclusive agents standard rates and rules then in effect for the locality in
which the Demised Promises are located.
16. LATE CHARGES: Except as otherwise provided herein, In every case in which
Tenant is required by the terms of this Lease to pay to Landlord a sum of money
(including, without limitation, payment of fixed or additional rent) and payment
is not made within five (5) days after the same shall become due, Tenant shall
pay as additional rent hereunder, a $250.00 late fee on such sum per month from
the date it becomes due until it is paid, provided, however, in no event shall
such payment be in excess of the highest rate which shall from time to time be
permitted under the laws of the State of New York to be charged on late payments
of sums of money due pursuant to the terms of a lease.
17. HOLD-OVER: If Tenant holds over in possession after the expiration or sooner
termination of the original term or any extended term of this Lease, such
holding over shall not be deemed to extend the term or renew the Lease, but such
holding over thereafter shall continue upon the covenants and conditions herein
set forth except that the charge for use and occupancy of such holding over for
each calendar month or part thereof (even if such part shall be a small fraction
or a calendar month) shall be the sum of:
a. 1/12 of the highest annual rent set forth in this Lease, times three (3),
plus
b. 1/12 of the net increase, if any, in annual fixed rental due solely to
increases in the cost of the value of electric and fuel service furnished to the
premises in effect on the last day of the term of the Lease, plus
c. 1/12 of all other items of annual additional rental, which annual additional
rental would have been payable pursuant to this Lease had this Lease not
expired, plus
22
d. Those other items of additional rent (not annual additional rent) which would
have been payable monthly pursuant to this Lease, had this Lease not expired,
which total sum Tenant agrees to pay to Landlord promptly upon demand, in full,
without set-off or deduction. Neither the billing nor the collection of use and
occupancy in the above amount shall be deemed a waiver of any right of Landlord
to collect damages for Tenant's failure ire to vacate the Demised Premises after
the expiration or sooner termination of this Lease. The aforesaid provisions of
this Article shall survive the expiration or sooner termination of this Lease.
e. Tenant agrees that it shall indemnify and save Landlord harmless against all
costs, claims, loss or ability (including reasonable legal fees) resulting from
the delay by Tenant in surrendering the Demised Premises upon the expiration or
earlier termination of this Lease, including, without limitation, any claims
made by any succeeding tenant founded on such delay. f. It is further agreed
that the terms herein are not a penalty, but they have been agreed to by the
parties as a reasonable estimation of the damages that would have been incurred
by Landlord, since the amount of actual damages would be extremely difficult to
ascertain, should Tenant holdover in possession of the Demised Premises after
the termination of this Lease.
18. DEFAULT: Any default by Tenant under any other lease held by tenant in the
Building, if any, shall be deemed a default of the same nature of this Lease.
19. BROKER. Tenant represents and warrants that it has dealt with no broker
except GVA Xxxxxxxx Real Estate Co., Inc. in connection with the execution of
this Lease or the showing of the Demised Premises and agrees to hold and save
Landlord harmless from and against any and all liabilities from any claims of
any broker (including, without limitation, the cost of counsel fees in
connection with the defense of any such claims), other than GVA Xxxxxxxx Real
Estate Co., Inc.
20. ALTERATIONS: Tenant understands and agrees that NO structural alterations or
changes in or to the demised premises may be made without the prior written
consent of the Landlord, and upon the further conditions then imposed by
Landlord in the event Landlord grants it consent to such alterations.
21. GOVERNMENT REGULATION: In the event that the Landlord herein is directed by
any City, State or Federal agency to comply with Local Law Legislation (which
includes Local Law 5, elevator inspection, land Local Law 10 or 11, facade
inspection, but not limited thereto), the tenant herein agrees to pay, .53%
(Tenant's proportionate share) of Landlord's cost to comply with said
directives. These costs shall be deemed to be additional rent and will be due
and payable on the first day of the month succeeding the completion of the work,
and will be paid together with the rent. The Landlord reserves the right to
collect said additional rent in accordance with the provisions of this Lease.
22. SQUARE FOOT ESTIMATE: Any square footage and/or percentage set forth herein
are approximate only and Landlord and Tenant hereby agree that any such figures
and/or percentages have been fairly determined and agreed to be Tenant solely
for the purpose of computing Tenant's contribution for escalation charges.
23
23. LANDLORD'S APPROVAL: If Tenant shall request Landlord's approval or consent
and Landlord shall fail or refuse to give such approval or consent, Tenant shall
not be entitled to any damages for any withholding or delay of such approval or
consent by Landlord, it being intended that Tenant's sole remedy shall be an
action for injunction or specific performance (the rights to money damages or
other remedies being hereby specifically waived), and that such remedy shall be
available only in those cases where Landlord shall have expressly agreed in
writing not to unreasonably withhold its consent or approval or where as a
matter of law Landlord may not unreasonably withhold its consent or approval.
24. ADDITIONAL RENT: Notwithstanding any thing to the contrary in this Lease,
any moneys due Landlord other than the annual rents are deemed to be additional
rent, and any default in the payment of additional rent shall give to Landlord
the same remedies as it has with respect to any default in the payment of rent.
25. LANDLORD'S WORK: Other than Landlord's Work stated herein, Tenant agrees to
rent the Demised Premises in "as is" condition. Landlord will perform work, if
any, as set forth in a Work Letter annexed hereto, if any.
26. PREPAID CONSTRUCTION FUNDS: Tenant has prepaid $8977.50 towards three months
of base rent to defray Landlord's construction costs for the demised premises,
Such monies shall be applied to Tenant's rent obligations in the tenth eleventh,
and twelfth months of the Lease Term. In all of these three months, Tenant is
responsible all additional rents specified herein.
27. SECURITY DEPOSIT: At all times prior to the expiration of the term of this
lease tenant shall maintain on deposit with landlord $25,515.00, the sum equal
to six (6) months of average base rent as security for due and faithful payment,
as herein provided, of the rent, additional rent, charges and damages payable by
tenant under this lease or pursuant to law and for the clue and faithful
keeping, observance, and performance of all the other covenants, agreements,
terms, provisions and conditions of this lease on the part of tenant to be kept,
observed and performed. If at any time Tenant shall be in default in the payment
of any such moneys or in the keeping, observance and performance of any such
other covenant, agreement, term, provision or condition, Landlord may at its
election apply security so on deposit with Landlord to the payment of any such
moneys or to the payment of the costs incurred by Landlord in curing such
default, as the case may be. If as the result of any such application of all or
any part of such security, the amount of cash so on deposit with landlord shall
be less than the required stated amounts, tenant's shall immediately deposit
with landlord cash in an amount equal to the deficiency. Tenant's failure to
make such additional deposit as may be required shall be deemed a material
default under this Lease. At the conclusion of the twenty-fourth month of the
Lease Term, provided that Tenant is not then and has not been in default
hereunder beyond any applicable cure period, Landlord shall return to Tenant
$8190.00 of the security amount. It Tenant has been in default prior to the
conclusion of the twenty-fourth month of the Lease Term beyond any applicable
cure period or is in default beyond any applicable cure period at that time,
Landlord shall retain the complete security amount. At the conclusion of the
thirty-sixth month of the Lease Term, provided that Tenant is not in default
hereunder beyond any applicable
24
cure period and has not been in default prior to that date beyond any applicable
cure period, Landlord shall return to Tenant $8505.00 of the security amount. If
Tenant has been in default prior to the conclusion of the thirty-sixth month of
the Lease Term beyond any applicable cure period or is in default at that time,
Landlord shall retain the complete security amount.
28. RENT: Tenant shall pay at an annual rental rate of 10/1/99-12/31100
$00,000.00 in 3 equal monthly payments of $0000.00 1/l/00-9/30/01 $26,932.50 in
9 equal monthly payments of $2992.50 10/01/01-9/30 /02 $49,140.00 In 12 equal
Monthly payments of $4095.00 10/1/02-9/30/03 $51,030.00 in 12 equal monthly
payments of $4252.50 10/l/03-9/30/04 $52,920.00 in 12 equal monthly payments of
$4410.00 10/l/04-9/30/05 $54,810,00 in 12 equal monthly payments of $4567.50
10/l/05-9/30/06 $56,700.00 in 12 equal monthly payments of $4725.00
10/l/06-12/31/07 $70,875.00 in 15 equal monthly payments of $4725.00
29. LEASE NOT BINDING UNLESS EXECUTED: It is specifically understood and agreed
that this Lease is offered to Tenant for signature and is subject to Landlord's
acceptance and approval of same and that Tenant has hereunto affixed its
signature with the understanding that said Lease shall not in any way bind
Landlord or its Agent until such time as Landlord has approved said Lease and
same is executed by Landlord and delivered to the Tenant.
30. HOURS OF BUILDING: Landlord covenants and Tenant agrees that Landlord will
use its best efforts to provide twenty-four (24) hour access to the Demised
Premises, however, nothing contained herein shall be construed as requiring
Landlord to provide services, such as heat, freight elevator service, etc., in
anything other than business hours as stated elsewhere in this Lease, except
that a passenger elevator shall be on standby use for all hours, barring
breakdown or emergency.
31. PRIOR LEASES AND AGREEMENTS All other prior leases, including amendments and
modifications thereto, and other agreements between Landlord and Tenant herein
are hereby deemed terminated and without any force and effect whatsoever.
32. LANDLORD'S CONSENT. Whenever Landlord's consent is required under this
Lease, such consent shall not be unreasonably withheld.
33. FREE RENT: Tenant shall be entitled to occupy the demised premises free of
the charge for base rent in the first three months of the Lease Period. In all
of these three months, Tenant remains responsible for all additional rents
provided herein then due to Landlord.
A.M. PROPERTY HOLDING XXXXXXXXXXX.XXX, INC.
CORPORATION, agent for 65 BROADWAY Co., LLC
By XXX X. XXXX,
Vice-President C.E.O
A.M. Property Holding Corp.
25
BUILDING WORK LETTER
RIDER OF THE LEASE DATED THE DAY OF JULY OF 1999, BETWEEN A.M. PROPERTY HOLDING
CORPORATION AS AN AGENT FOR 65 BROADWAY CO., LLC, AS LANDLORD AND
XXXXXXXXXXX.XXX, INC., AS TENANT.
A. Within ten (10) days after the execution of this Lease, Tenant shall provide
to Landlord an architectural drawing and an electrical plan for the Demised
Premises. Landlord's work shall be based upon the standard used In the building
and, to the extent practicable, shall be in accord with Tenant's architectural
drawing and electrical plan and specifications which have been developed In
consultation with Tenant. Landlord shall have the right to reasonably modify
such drawing, plan and specification as it, in its sole discretion, determines.
B. Provided that Tenant timely provides to Landlord its architectural drawing
and an electrical plan for the Demised Premises as provided herein Landlord
hereby agrees to use its best effort to have the required construction at the
Demised Promises substantially completed within sixty (60) days after the
execution of this Lease, such that the premises are available for occupancy by
Tenant within sixty (60) days after the execution of this Lease. In the event
that Tenant provides said architectural drawing and electrical plan for the
Demised Premises to Landlord more than ten (10) days after the execution of this
Lease, Landlord hereby agrees to use Its best effort to have the required
construction' at the Demised Promises substantially complete: within sixty (60)
days after Tenant shall provides said architectural drawing and electrical plan
for the Demised Premises to Landlord, such that the promises are available for
occupancy by Tenant within sixty (60) days after Tenant provides said
architectural drawing and electrical plan for the Demised Premises to Landlord.
A.M. PROPERTY HOLDING XXXXXXXXXXX.XXX INC.
CORPORATION, agent for
65 BROADWAY Co., LLC
By: Xxxx Xxxxxxxxx, By: XXX X. XXXX,
A.M. Property Holding C Vice-President C.E.O.
FORM OF LIMITED GUARANTEE
RIDER OF THE LEASE DATED THE 8th DAY OF JULY OF 1999, BETWEEN A.M. PROPERTY
HOLDING CORPORATION AS AN AGENT FOR 65 BROADWAY CO., LLC, AS LANDLORD AND
XXXXXXXXXXX.XXX, INC., AS TENANT
In order to induce Landlord to enter into the foregoing lease and for other
valuable considerations, the receipt whereof is hereby acknowledged, the
undersigned ("Guarantor") hereby makes the following guarantee and agreement
with and in favor of Landlord and its respective legal representatives and
assigns.
A. The undersigned guarantees to Landlord, its successors and assigns, that
First Madison Securities and its successors and assigns, shall pay to Landlord
all rent and additional rent that has accrued or may accrue (other than by
acceleration, as described in the Lease) under the terms of the Lease herein
(hereinafter referred to as Accrued Rent), to the latest date that Tenant and
its assigns and subleases,
26
if any, shall have completely performed all of the following:
1. Vacated and surrendered the Demised Premises to Landlord and delivered the
keys to same to Landlord, and 2. Paid to Landlord all Accrued Rent to and
including the date which is the later of (a) the actual receipt by Landlord of
said Accrued Rent (b) the surrender of the premises or (c) receipt by Landlord
of the keys to the Premises.
B. It is agreed that any security deposited under this lease shall not be
computed as a deduction from any amount payable by Tenant or Guarantor under the
terms of this Guarantee or the Lease.
C. This guarantee is absolute and unconditional and is a guarantee of payment
and not of collection. The parties hereto waive all notice of nonpayment,
non-performance, nonobservance or proof, or notice, or demand, whereby to charge
the undersigned therefore, all of which the undersigned expressly waives and
expressly agrees that the validity of this Agreement, and the obligation of the
Guarantor hereto shall in no way be terminated, affected or impaired by reason
of the assertion by Landlord against Tenant of any rights or remedies reserved
to Landlord pursuant to the performance of the within Lease. The undersigned
further covenants and agrees that this guarantee shall remain and continue in
full force and effect, as to any renewal, modification or extension of this
Lease and during any period when Tenant is occupying the Premises as a
"statutory tenant," or otherwise, As a further inducement to Landlord to make
this Lease and in consideration thereof, Landlord and the undersigned covenant
and agree that any action or proceeding brought by either 1, Landlord or the
undersigned against the other on any matters whatsoever arising out of, under or
by virtue of the terms of this Lease or of this guarantee that Landlord and the
undersigned shall and do hereby waive trial by jury.
D. This guarantee shall be construed in accordance with the Laws of the State of
New York.
E. If Tenant becomes Insolvent or shall be adjudicated a bankrupt or shall file
for reorganization or similar relief or if such petition is filed by creditors
of Tenant, under any present or future law or if the lease is terminated or
Tenant's obligations otherwise discharged in any bankruptcy proceeding or
otherwise, Guarantor's obligations hereunder may nevertheless be enforced
against the Guarantor,
F. This guarantee shall be construed in accordance with the Laws of the State of
New York,
IN WITNESS WHEREOF, the undersigned have set their hand the date and year last
above written.
First Madison Securities, Inc.
By: Xxx Xxxxx, President, First Madison Securities, Inc.
On the 8th of JULY, 1999, before me personally came XXX XXXXX to me known and
known to me to be the individual described herein and who executed the foregoing
instrument and acknowledged to me that he executed the same.
Notary Public
XXXXXX X XXXXXXX
notary Public, State of New York
Qualified In Xxxxxx Xxxxxx
Xxxxxxxxxxxx Xx. X0XX0000000
Commission Expires 04-28-01
27
