EXHIBIT 10.8
AGREEMENT OF LEASE, made as of the __________ between DINO AND SONS REALTY
CO., a New York Partnership having its principal place of business at 0000 Xxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called "Landlord") and GLOBAL
SHOPPING NETWORK, INC., a Domestic New York Corporation, having an office at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. (hereinafter called "Tenant")
W I T N E S S E T H:
The parties heretofor themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
1. DEMISE, PREMISES, TERM, RENT.
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A. Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
the second floor and the third floor and the fourth floor, as more particularly
shown on Exhibit 1, annexed hereto and made a part hereof (hereinafter called
"Premises") in the building known as 000 Xxxx 00xx Xxxxxx, in the Borough of
Manhattan, County City and State of New York (said building is hereinafter
called the "Building" and the Building , together with the plot of land upon
which it stands, is hereinafter called the "Real Property") for a term
(hereinafter called the "Term") to commence on the Commencement Date
(hereinafter defined) both dates inclusive unless the Term shall sooner end
pursuant to any of the terms, covenants or conditions of this lease or pursuant
to law at the Rent, (hereinafter defined which Rent shall also include any
additional rent payable hereunder), which Rent 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 tine of payment' in equal monthly
installments, in advance, commencing on the Rent Commencement Date (hereinafter
defined) and on the first (1st) day of each calendar month thereafter during the
Term (except as hereinafter otherwise provided), at the office of Landlord or
such other place as Landlord may designate without any set-off, offset,
abatement or deduction whatsoever unless otherwise set forth herein, if the Rent
Commencement Date shall occur on a date other than the first (1st) day of any
calendar month, Tenant shall pay to Landlord, on the first (1st) day of the
month next succeeding the month during which the Rent Commencement Date shall
occur, an amount equal to such proportion of an equal monthly installment of
Rent as the number of days from and including the Rent Commencement Date bears
to the total number of days in said calendar month. Such payment, together with
the sum paid by Tenant upon execution of this Lease, shall constitute payment of
the Rent for the period from the Rent Commencement Date to and including the
last day of the next succeeding calendar month.
B. The following definitions contained in this subsection B of this Article
1 shall have the meanings hereinafter set forth used throughout this Lease,
Exhibits, Schedules, and Riders (if any).
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(i) "Commencement Date" shall mean as to the third and fourth floors on or
about November 1, 1996; and as to the second floor on or about January
1, 1997.
(ii) "Expiration Date" shall mean October 31, 2001.
(iii) "Rent" shall mean:
(a) For the period November 1, 1996 through and including December
31, 1996, no base rent shall be due;
(b) For the period January 1, 1997 through and including October 31,
1997 the rent shall be $382,795.00 payable in ten equal monthly
installments of $38,279.50 per month;
(c) For the period November 1, 1997 through and including December
31, 1997, no base rent shall be due;
(d) For the period January 1, 1998 through and including October 31,
1998 the rent shall be $410,137.50 payable in ten equal monthly
installments of $41,013.75 per month;
(e) For the period November 1, 1998 through and including November
30, 1998, no base rent shall be due;
(f) For the period December 1, 1998 through and including October 31,
1999 the rent shall be $481,228.00 payable in eleven equal
monthly installments of $43,748.00 per month;
(g) For the period November 1, 1999 through and including October 31,
2000 the rent shall be $524,976.00 payable in twelve equal
monthly installments of $43,748.00 per month;
(h) For the period November 1, 2000 through and including October 31,
2001 (Expiration Date) the rent shall be $590,598.00 payable in
twelve equal monthly installments of $49,216.50 per month.
Notwithstanding the above terms or anything to the contrary contained in this
Lease, Tenant shall have the right to cancel/terminate this Lease prior to the
Expiration Date ("Early Termination") at any time after the first year hereof
(i.e. after October 31, 1997 as to all of the Premises even though the
Commencement Date for the 2nd Floor space was not until January 1, 1997) by
complying with the following conditions:
1. The Tenant shall give the Landlord notice of Tenant's intention to
seek Early Termination; said notice to be given at least 120 days
prior to the intended Early Termination Date, and;
2. Simultaneously with the giving of notice to Landlord, Tenant shall pay
to Landlord an amount equal to six month's of the then (at the time of
notice) monthly base rent, and;
3. Tenant shall continue to pay any rent or additional rent or other
appropriate charges normally due between the notice date and the Early
Termination Date.
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(iv) "Rent Commencement Date" shall mean January 1, 1997.
(v) "Permitted Uses" shall mean as a television production studio,
editing, telemarketing, data entry, and general offices attendant
thereto.
(vi) Base Tax Year" shall mean collectively the Tax Year beginning
July 1, 1997.
(vii) Tenant's Proportionate Share shall mean 28.23 percent (28.23%).
(viii) "Security Deposit" shall mean the sum of $76,559.00.
(ix) "Broker" shall mean J. Xxxxxxx Xxxx.
Notwithstanding anything to the contrary contained in this subsection of
this Article 1, Articles 1 through 39 shall control the rights and obligations
of the parties hereto except that the provisions of any Riders shall supersede
any inconsistent provisions in Articles 1 through 39, as the case may be.
2. USE AND OCCUPANCY.
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A. Tenant shall use and occupy the Premises for any lawful purpose subject
to the provisions of Article 2B, hereof.
B. Tenant hereby represents, warrants and agrees that Tenant's business is
not and shall not be photographic, or multilith or multigraph reproductions or
offset printing. Anything contained herein to the contrary notwithstanding,
Tenant shall not use the Premises or any part thereof, or permit the Premises or
any part thereof to be used, (i) for the business of photographic, multilith or
multigraph reproductions or offset printing, (ii) for banking, trust company,
depository, guarantee of safe deposit business, (iii) as a savings bank, a
savings and loan association, or as a loan company, (iv) for the sale of
travelers checks, money orders, drafts, foreign exchange or letters of credit or
for the receipt of money for transmission, (v) as a "retail" stock broker's or
dealer's office which shall be open to the general public (except pursuant to
prior appointment) , (vi) as a restaurant or bar or for the sale of
confectionery, soda, beverages, sandwiches, ice cream or baked goods or for the
preparation, dispensing or consumption of food or beverages in any matter
whatsoever except by Tenant's officers, employees and/or invitees in connection
with its business at the Premises, (vii) as a news or cigar stand, (viii) as an
employment agency, labor union office, physician's or dentist's office, dance or
music studio, school (except for the training of employees of Tenant), (ix) as a
xxxxxx shop or beauty salon, or (x) for the direct sale, at retail or otherwise,
of any goods or products which requires customers to be physically present at
the Premises. Nothing in subsection B shall preclude Tenant from using any part
of the Premises for photographic, multilith or multigraph
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reproductions in connection with, either directly or indirectly, its own
business and/or activities.
3. ALTERATIONS. Tenant shall not make or perform or permit the making or
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performance of, any alterations, installations, improvements, additions or other
physical changes in or about the Premises (hereinafter collectively called
"Alterations") without Landlord's prior consent. Landlord agrees not to withhold
unreasonably its consent to any Alterations which are nonstructural or which do
not affect the Buildings mechanical systems or services, proposed to be made by
Tenant to adapt the Premises for those business purposes permitted by subsection
A of Article 2 hereof, provided that such Alterations are performed only by
contractors or mechanics approved by Landlord which approval shall not be
unreasonably withheld or delayed, do not affect any part of the Building other
than the Premises, do not adversely affect any service required to be furnished
by Landlord to Tenant or to any other tenant or occupant of the Building and do
not reduce the value or utility of the Building. Anything to the contrary
notwithstanding, Landlord's consent shall not be required in connection with the
performance of ordinary decorations to the Premises. All Alterations shall be
done at Tenant's expense and at such times and in such manner as Landlord may
from time to time reasonably designate pursuant to the conditions for
Alterations prescribed by Landlord for the Premises. All furniture, furnishings,
and movable fixtures and partitions installed by Tenant and all Alterations in
and to the Premises which may be made by Tenant at its own cost and expense
prior to and during the Term, or any renewal thereof, shall remain the property
of Tenant and upon the Expiration Date or earlier end of the Term or any renewal
thereof, may be removed from the Premises by Tenant at Tenant's option,
provided, however, that Tenant shall repair and restore in good and workmanlike
manner to Building standard original condition (reasonable wear and tear
excepted) any damage to the Premises or the Building caused by such removal. Any
of such fixtures or installations not so removed by Tenant at or prior to the
Expiration Date or earlier termination of the Term shall become the property of
Landlord, and shall remain upon and be surrendered with the Premises as part
thereof at the end of the Term. Prior to making any Alterations, Tenant (i)
shall submit to Landlord detailed plans and specifications (including layout,
architectural, mechanical and structural drawings) for each proposed Alteration
and shall not commence any such Alteration without first obtaining Landlord's
approval of such plans and specifications, (ii) shall, at its expense, obtain
all permits, approvals, and certificates required by any governmental or
quasi-governmental bodies, and (iii) shall furnish to Landlord duplicate
original policies of worker's compensation insurance (covering all persons to be
employed by Tenant, and Tenant's contractors and subcontractors in connection
with such Alteration) and comprehensive public liability (including property
damage coverage) insurance in such form, with such companies, for such periods
and in such amounts as Landlord may reasonably require, naming Landlord and its
agents as additional insureds. Upon completion of such Alteration, Tenant, at
Tenant's expense, shall obtain certificates of final approval of such Alteration
required by any governmental or quasi-governmental bodies and shall furnish
Landlord with copies thereof. All Alterations
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shall be made and performed in accordance with the Rules and Regulations
(hereinafter defined); all materials and equipment to be incorporated in the
Premises as result of all Alterations shall be new and first quality; no such
materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage or title retention or security agreement. In the event any Alterations
are performed by general partner of Landlord or any entity which is under the
common control of Landlord or and general partner of Landlord, the failure by
Tenant to pay the cost of such Alterations upon rendition of xxxx therefor shall
be deemed material default under this Lease. Any mechanic's lien filed against
the Premises, or the Real Property, for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant shall be discharged by
Tenant within thirty (30) days thereafter, at Tenant's expense, by payment or
filing the bond required by law. Tenant shall not, at any time prior to or
during the Term, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in the Premises, whether in connection with any
Alteration or otherwise, if, in the Landlord's sole discretion, such employment
will interfere or cause any conflict with other contractors, mechanics, or
labors engaged in the construction, maintenance or operation of the Building by
Landlord, Tenant or others. In the event of any such interference or conflict,
Tenant, upon demand of Landlord, shall cause all contractors, mechanics or
labors causing such interference or conflict to leave the Building immediately.
4. REPAIRS-FLOOR LOAD. Landlord shall maintain and repair the public portions of
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the Building, both exterior and interior. Landlord shall perform such
maintenance and repairs promptly, in good and workmanlike manner, and in manner
so as to minimize, to the extent reasonably practicable, any interference to
Tenant's use of the Premises, without requiring the use of overtime or premium
pay labor in connection therewith. Tenant shall, throughout the Term, take good
care of the Premises and the fixtures and appurtenances therein and at Tenant's
sole cost and expense, make all nonstructural repairs thereto as and when needed
to preserve them in good working order and condition, reasonable wear and tear
and damage for which Tenant is not responsible under the terms of this Lease
excepted. Tenant shall pay Landlord for all replacements to the lamps, tubes,
ballasts and starters in the lighting fixtures installed in the Premises.
Notwithstanding the foregoing, all damage or injury to the Premises or to any
other part of the Building, or to its fixtures, equipment and appurtenances,
whether requiring structural or nonstructural repairs, caused by or resulting
from carelessness, omission, neglect or improper conduct of or Alterations made
by Tenant, Tenant's servants, employees, invitees or licensees, shall be
repaired promptly by Tenant, at its sole cost and expense, to the satisfaction
of Landlord. Tenant also shall repair all damage to the Building and the
Premises caused by the moving of Tenant's fixtures, furniture or equipment. All
the aforesaid repairs shall be of quality or class equal to the original work or
construction and shall be made in accordance with the provisions of Article 3
hereof. If Tenant fails after ten (10) days' notice to proceed with due
diligence to make repairs required to be made by Tenant, the same may be made by
Landlord, at the expense of Tenant, and the expenses thereof incurred by
Landlord
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shall be collectible by Landlord as additional rent after rendition of xxxx or
statement therefor. Tenant shall give Landlord prompt notice of any defective
condition in any plumbing, electrical, air cooling or heating system located in,
servicing or passing through the Premises. Tenant shall not place load upon any
floor of the Premises exceeding the floor load per square foot area which such
floor was designed to carry and which is allowed by law. Landlord reserves the
right to reasonably prescribe the weight and position of all safes, business
machines and heavy equipment and installations. Business machines and mechanical
equipment shall be placed and maintained by Tenant at Tenant's expense in
settings sufficient in Landlord's reasonable judgment to absorb an prevent
vibration, noise and annoyance. Except as provided in Article 10 hereof, there
shall be no allowance to Tenant for diminution of rental value and no liability
on the part of Landlord by reason of inconvenience, annoyance or injury to
business arising from Landlord, Tenant or others making, or failing to make, any
repairs, alterations, additions or improvements in or to any portion of the
Building, or the Premises, or in or to fixtures, appurtenances, or equipment
thereof. If the Premises be or become infested with vermin, Tenant, at Tenant's
expense, shall cause the same to be exterminated from time to time to the
satisfaction of Landlord and shall employ such exterminators and such
extermination company or companies as shall be approved by Landlord. The water
and wash closets and other plumbing fixtures shall not be used for any purposes
other than those for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other substances shall be deposited therein.
5. WINDOW CLEANING. Tenant shall not clean, nor require, permit, suffer or allow
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any window in the Premises to be cleaned, from 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.
6. REQUIREMENTS OF LAW. Tenant at its sole expense shall comply with all laws,
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orders and regulations of federal, state, county and municipal authorities and
with any direction of any public officer or officers, pursuant to law, and all
rules, orders regulations or requirements of the New York Board of Fire
Underwriters, or any other similar body which shall impose any violation order
or duty upon Landlord or Tenant with respect to the Premises as result of the
use or occupation thereof by Tenant for any purpose other than the Permitted
Uses or the conduct by Tenant of its business in the Premises in manner
different from the ordinary and proper conduct of such business. Tenant shall
not do or permit to be done any act or thing upon the Premises which will
invalidate or be in conflict with any insurance policies covering the Building
and fixtures and property therein; and shall not do, or permit anything to be
done in or upon the Premises, or bring or keep anything therein, except as now
or hereafter permitted by the Xxx Xxxx Xxxx Xxxx Xxxxxxxxxx, Xxx Xxxx Board of
Fire Underwriters, New York Fire Insurance Rating Organization or other
authority having jurisdiction and then only in such quantity and manner of
storage as not to increase the rate for fire insurance applicable to the
Building, or use the Premises in manner which shall increase the rate of fire
insurance on the
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Building or on property located therein, over that in similar type buildings or
in effect prior to this Lease. Any work or installations made or performed by or
on behalf of Tenant or any person claiming through or under Tenant pursuant to
this Article shall be made in conformity with, and subject to the provisions of
Article 3 hereof. If by reason of failure of Tenant to comply with the
provisions of this Article, the fire insurance rate shall at the beginning of
this Lease or at any time thereafter be higher than it otherwise would be, then
Tenant shall reimburse Landlord, as additional rent hereunder, for that part of
all fire insurance premiums thereafter paid by Landlord which shall have been
charged because of such failure of use by Tenant, and shall make such
reimbursement upon the first day of the month following such outlay by Landlord.
In any action or proceeding wherein Landlord and Tenant are parties, schedule or
"make up" of rates for the Building or the Premises issued by the New York Fire
Insurance Rating Organization, or other body fixing such fire insurance rates,
shall be conclusive evidence of the facts therein stated and of the several
items and charges in the fire insurance rates then applicable to the Premises.
A. Anything to the contrary herein notwithstanding, Tenant shall not be
required to bear the cost of compliance with any laws, orders, regulations, or
requirements of any governmental authority which would require any structural or
non-structural alterations, unless the condition necessitating the work shall
arise as a result of Tenant's manner of use of the demised Premises. Landlord
agrees, at Landlord's sole cost and expense, to comply with all laws, orders,
and regulations of governmental authorities with respect to the demised Premises
and/or the Building other than those which are the responsibility of the Tenant
in accordance with the terms of this Lease.
7. SUBORDINATION.
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A. This Lease is subject and subordinate to each and every ground or
underlying lease of the Real Property or the Building heretofore or hereafter
made by Landlord (collectively the "Superior Leases") and to each and every
trust indenture and mortgage (collectively the "Mortgages") which may now or
hereafter affect the Real Property, the Building or any such Superior Lease and
the leasehold interest created thereby, and to all renewals, extensions,
supplements, amendments, modifications, consolidations, and replacements thereof
or thereto, substitutions therefor, and advances made thereunder. This clause
shall be self-operative and no further instrument of subordination shall be
required to make the interest of any lessor under a Superior Lease, or trustee
or mortgagee of a Mortgage superior to the interest of Tenant hereunder. In
confirmation of such subordination however, Tenant shall execute promptly any
certificate that Landlord may reasonably request. If the date of expiration of
any Superior Lease shall be the same day as the Expiration Date, the Term shall
end and expire twelve (12) hours prior to the expiration of the Superior Lease.
Tenant covenants and agrees that, except as expressly provided herein, Tenant
shall not do anything that would constitute a default under any Superior Lease
or Mortgage, or omit to do anything that Tenant is obligated to do under the
terms of this Lease so as to cause Landlord to be in default under any of the
foregoing. If, in
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connection with the financing of the Real Property, the Building or the interest
of the lessee under any Superior Lease, any lending institution shall request
reasonable modifications of this Lease that do not increase the Rent or other
financial obligations of Tenant hereunder, decrease the size of the Premises,
modify the Term or otherwise materially increase the obligations or materially
and adversely affect the rights of Tenant under this Lease, Tenant covenants to
make such modifications.
B. If at any time prior to the expiration of the Term, any Mortgage shall
be foreclosed or any Superior Lease shall terminate or be terminated for any
reason, Tenant agrees, at the election and upon demand of any owner of the Real
Property or the Building, or the lessor under any such Superior Lease, or of any
mortgagee in possession of the Real Property or the Building to attorney, from
time to time, to any such owner, lessor or mortgagee, upon the then executory
terms and conditions of this Lease, for the remainder of the term originally
demised in this Lease, provided that such owner, lessor or mortgagee, as the
case may be, or receiver caused to be appointed by any of the foregoing, shall
not then be entitled to possession of the Premises. The provisions of this
subsection B shall inure to the benefit of any such owner, lessor or mortgagee,
shall apply notwithstanding that, as matter of law, this Lease may terminate
upon the termination of any such Superior Lease, and shall be self-operative
upon any such demand, and no further instrument shall be required to give effect
to said provisions, Tenant, however, upon demand of any such owner, lessor or
mortgagee, agrees to execute, from time to time, instruments in confirmation of
the foregoing provisions of this subsection B, satisfactory to any such owner,
lessor or mortgagee, acknowledging such attornment and setting forth the terms
and conditions of its tenancy. Nothing contained in this subsection B shall be
construed to impair any right otherwise exercisable by any such owner, lessor or
mortgagee.
C. Landlord hereby represents that there are currently no superior ground
or underlying leases covering the Building or the Premises, and that any
underlying mortgages which may exist are not in default at the time of execution
of this Lease.
8. RULES AND REGULATIONS. Tenant and Tenant's servants, employees, agents,
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visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations annexed hereto and made a part hereof as Schedule A (the
"Rules and Regulations"), and such other and further reasonable Rules and
Regulations as Landlord or Landlord's agents may from time to time adopt on such
notice to be given as Landlord may elect. In case Tenant disputes the
reasonableness of any additional Rule or Regulation hereafter made or adopted by
Landlord or Landlord's agents, the parties hereto agree to submit the question
of the reasonableness of such Rule or Regulation for decision to the Chairman of
the Board of Directors of the Management Division of the Real Estate Board of
New York, Inc., or to such impartial person or persons as he may designate,
whose determination shall be final and conclusive upon the parties hereto. The
right to dispute the reasonableness of any additional Rule or Regulation upon
Tenant's part shall be deemed waived unless the same shall be asserted by
service of notice in writing upon Landlord within twenty (20) days after receipt
by Tenant of written notice
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and the adoption of any such additional Rule or Regulation. Nothing in this
Lease contained shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, against any other tenant and Landlord shall not
be liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees; provided that Landlord shall not
promulgate or enforce the Rules and Regulations against Tenant in a
discriminatory manner.
9. INSURANCE.
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A. Tenant's Insurance. Tenant shall obtain and keep in full force and
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effect during the Term a policy of comprehensive general public liability and
property damage insurance with broad form contractual liability endorsement
under which Tenant is named as the insured, and Landlord is named as an
additional insured, and under which the insurer agrees to indemnify and hold
Landlord harmless from and against all cost, expense and/or liability arising
out of or based upon any and all claims, accidents, injuries and damages
mentioned in Article 37 hereof. Such policy shall contain a provision that no
act or omission of Tenant shall affect or limit the obligation of the insurance
company to pay the amount of any loss sustained and shall be noncancelable with
respect to Landlord without thirty (30) days' written notice to Landlord by
certified mail, return receipt requested, which notice shall contain the policy
number and the names of the insured and certificate holder. A certificate
thereof shall be delivered to Landlord and shall have printed thereon Article 37
hereof in its entirety if required by Landlord. The minimum limits of liability
shall be a combined single limit with respect to each occurrence in an amount of
not less than $1,000,000 for injury (or death) and damage to property or such
greater amount as Landlord may, from time to time, require. All insurance
required to be carried by Tenant pursuant to the terms of this Lease shall be
effected under valid and enforceable policies issued by reputable and
independent insurers permitted to do business in the State of New York, and
rated in Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation) as having general policyholder
rating of "A" and a financial rating of at least "13".
B. Waiver of Subrogation. The parties hereto shall procure an appropriate
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clause in, or endorsement on, any fire or extended coverage insurance covering
the Premises and the Building, as well as personal property, fixtures and
equipment located thereon or therein, pursuant to which the insurance companies
waive subrogation or consent to a waiver of right of recovery, and each party
hereby agrees that it will not make any claim against or seek to recover from
the other for any loss or damage to its property or the property of others
resulting from fire or other hazards covered by such fire and extended coverage
insurance. If the payment of an additional premium is required for the inclusion
of such waiver of subrogation provision, each party shall advise the other of
the same. It is expressly understood and agreed the Landlord will not carry
insurance on Tenant's fixtures, furnishings, equipment or other property or
effects or insurance against interruption of Tenant's business.
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10. DESTRUCTION OF THE PREMISES: PROPERTY LOSS OR DAMAGE.
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A. If any portion of the Premises shall be damaged by fire or other
casualty, and if Tenant shall give prompt notice thereof to Landlord, the
damages shall be repaired by and at the expense of Landlord and the Rent until
such repairs shall be made shall be reduced in the proportion which the area of
the part of the Premises which is not usable by Tenant bears to the total area
of the Premises. Landlord shall have no obligation to repair any damage to, or
to replace, any fixtures, furniture, furnishings, equipment or other property or
effects of Tenant so long as the damage was not the result of the negligence,
gross negligence or willful misconduct of the Landlord.
B. Anything in subsection A of the Article 10 to the contrary
notwithstanding, if the Premises are totally damaged or are rendered wholly
untenanable, and if Landlord shall decide not to restore the Premises, or if the
Building shall be so damaged by fire or other casualty that, in Landlord's
opinion substantial alteration, demolition, or reconstruction of the Building
shall be required (whether or not the Premises shall have been damaged or
rendered untenantable), then in any of such events, Landlord at Landlord's
option, may , not later than sixty (60) days following the damage, give Tenant
notice in writing terminating this Lease. If Landlord elects to terminate this
Lease, the Term shall expire upon the tenth (10th) day after such notice is
given, and Tenant shall vacate the Premises and surrender the same to Landlord.
If Tenant shall not be in default under this Lease, then upon the termination of
this Lease under the conditions provided for in the next preceding and
succeeding sentences, Tenant's liability for Rent shall cease as of the day
following such damage. In the event the Premises are substantially damaged so
that Tenant cannot reasonably conduct its business from the Premises or are
rendered wholly untenantable, then upon receipt of a request from Tenant,
Landlord shall give Tenant written notice ("Landlord's Notice") within sixty
(60) days of Tenant's request of Landlord's reasonable estimate of the period
required to reconstruct the Premises, which shall be based upon the opinion of
Landlord's engineer or architect, and if such period of reconstruction is in
excess of twelve (12) months from the date of such fire or other casualty, then
Tenant shall have the right to terminate this Lease by notice to Landlord given
within ten (10) days of Landlord's Notice.
C. Landlord shall not be liable for reasonable delays which may arise by
reason of adjustment of fire insurance on the part of Landlord and/or Tenant,
and for reasonable delays on account of "labor troubles" or any other cause
beyond Landlord's control.
D. The parties agree that this Article 10 constitutes an express agreement
governing any case of damage or destruction of the Premises or the Building by
fire or other casualty, and that Section 227 of the Real Property Law of the
State of New York, which provides for such contingency in the absence of an
express agreement, and any other law of like import now or hereafter in force
shall have no application in any such case.
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E. Any Building employee to whom any property shall be entrusted by or on
behalf of Tenant shall be deemed to be acting as Tenant's agent with respect to
such property and neither Landlord nor its agents shall be liable for any damage
to property of Tenant or of others entrusted to employees of the Building, nor
for the loss of or damage to any property of Tenant by theft or otherwise.
Neither Landlord nor its agents shall be liable for any injury or damage to
persons or property or interruption of Tenant's business resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, rain or snow or
leaks from any part of the Building or from the pipes, appliances or plumbing
works or from the roof, street or subsurface or from any other place or by
dampness or by any other cause or whatsoever nature other than as a result of
the negligence, gross negligence or willful misconduct of the Landlord, its
employees or agents; nor shall Landlord or its agents be liable for any such
damage caused by other tenants or persons in the Building or caused by
construction of any private, public or quasi-public work; nor shall Landlord be
liable for any latent defect in the Premises or in the Building. Anything in
this Article 10 to the contrary notwithstanding, nothing in this Lease shall be
construed to relieve Landlord from responsibility directly to Tenant for any
loss or damage caused directly to Tenant wholly or in part by the gross
negligence or willful misconduct of Landlord. Nothing in the foregoing sentence
shall affect any right of Landlord to the indemnity from Tenant to which
Landlord may be entitled under Article 37 hereof in order to recoup for payments
made to compensate for losses of third parties. If at any time any windows of
the Premises are temporarily closed, darkened or bricked-up for any reason
whatsoever including, but not limited to, Landlord's own acts, or any of such
windows are permanently closed, darkened or bricked-up if required by law or
related to any construction upon property adjacent to the Real Property by
Landlord or others, Landlord shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement of Rent nor shall the same release Tenant form its obligations
hereunder nor constitute an eviction. Tenant shall reimburse and compensate
Landlord as additional rent within five (5) days after rendition of statement
for all expenditures made by , or damages or fines sustained or incurred by,
Landlord due to nonperformance or noncompliance with or breach or failure to
observe any term, covenant or condition of this Lease upon Tenant's part to be
kept, observed, performed or complied with. Tenant shall give immediate notice
to Landlord in case of fire or accident in the Premises or in the Building.
Tenant shall not move any safe, heavy machinery, heavy equipment, freight, bulky
matter or fixtures into or out of the Building without Landlord's prior consent
and payment to Landlord of Landlord's costs in connection therewith. If such
safe, machinery, equipment, freight, bulky matter or fixtures requires special
handling, Tenant agrees to employ only persons holding Master Rigger's License
to do said work, and that all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto, and shall be done during such hours as Landlord many
designate. Notwithstanding said consent of Landlord, Tenant shall indemnify
Landlord for, and hold Landlord harmless and free from, damages sustained by
persons or property and for any damages or monies paid out by Landlord in
settlement of any claims or
11
judgments, as well as for all expenses and reasonable attorneys' fees incurred
in connection therewith an all costs incurred in repairing any damage to the
Building or appurtenances.
11. EMINENT DOMAIN.
--------------
A. If the whole of the Real Property, the Building or the Premises shall be
acquired or condemned for any public or quasi public use or purpose, this Lease
and the Term shall end as of the date of the vesting of title with the same
effect as if said date were the Expiration Date. If only part of the Real
Property shall be so acquired or condemned then, (a) except as hereinafter
provided in this subsection A, this Lease and the Term shall continue in force
and effect but, if part of the Premises is included in the part of the Real
Property so acquired or condemned, from and after the date of the vesting of
title, the Rent shall be reduced in the proportion which the area of the part of
the Premises so acquired or condemned bears to the total area of the Premises
immediately prior to such acquisition or condemnation; (b) whether or not the
Premises shall be affected thereby, Landlord, at Landlord's option, may give to
Tenant, within sixty (60) days next following the date upon which Landlord shall
have received notice of vesting of title, five (5) days' notice of termination
of this Lease; and if the part of the Real Property so acquired or condemned
shall contain more than thirty percent (30%) of the total area of the Premises
immediately prior to such acquisition or condemnation, or if, by reason of such
acquisition or condemnation, Tenant, at Tenant's option, may give to Landlord,
with sixty (60) days next following the date upon which Tenant shall have
received notice of vesting of title, a five (5) days' notice of termination of
this Lease. If any such five (5) days' notice of termination is given by
Landlord or Tenant this Lease and the Term shall come to an end and expire upon
the expiration of said five (5) days with the same effect as if the date of
expiration of said five (5) days were the Expiration Date. If a part of the
Premises shall be so acquired or condemned and this Lease and the Term shall not
be terminated pursuant to the foregoing provisions of this subsection A ,
Landlord, at Landlord's expense shall restore that part of the Premises not so
acquired or condemned to a self-contained rental unit. In the event of any
termination of this Lease and the Term pursuant to the provisions of this
subsection A, the Rent shall be apportioned as of the date of sooner termination
and any prepaid portion of Rent for any period after such date shall be refunded
by Landlord to Tenant.
B. In the event of any such acquisition or condemnation of all or any part
of the Real Property, Landlord shall be entitled to receive the entire award for
any such acquisition or condemnation, Tenant shall have no claim against
Landlord or the condemning authority for the value of any unexpired portion of
the Term and Tenant hereby expressly assigns to Landlord all of its right in and
to any such award. Nothing contained in this subsection B shall be deemed to
prevent Tenant from making claim in any condemnation proceedings for the then
value of any furniture, furnishings and fixtures installed by and at the sole
expense of Tenant and included in such taking, provided that such award shall
not reduce the amount of the award otherwise payable to Landlord.
12
12. ASSIGNMENT AND SUBLETTING.
-------------------------
A. Tenant may-designate by sublease a third party to occupy and operate
within the demised premises so long as that third party shall operate within,
and otherwise conform to all of the terms and conditions of this Lease. The
consent of the Landlord, either express or implied by this paragraph, to a
designated operator or sublessee shall not in any way be construed to relieve
Tenant from the full and faithful performance of all of the terms and conditions
contained in this lease.
B. The listing of any name other than that of Tenant, whether on the doors
of the Premises or the Building directory, or otherwise, shall not operate to
vest any right or interest in this Lease or in the Premises, nor shall it be
deemed to be the consent of Landlord to any assignment or transfer of this Lease
or to any sublease of the Premises or to the use or occupancy thereof by others.
Any such listing shall constitute a privilege extended by Landlord, revocable at
Landlord's will by notice to Tenant.
13. CONDITION OF THE PREMISES. Tenant agrees to accept possession the Premises
--------------------------
in the condition which shall exist on the Commencement Date "as is", and further
agrees that Landlord shall have no obligation to perform any further work or
make any further installations in order to prepare the Premises for Tenant's
occupancy. The taking of possession of the Premises by Tenant shall be
conclusive evidence as against Tenant that, at the time such possession was so
taken, the Premises and the Building were in good and satisfactory condition.
14. ACCESS TO PREMISES. Except as otherwise circumscribed in this Lease, Tenant
------------------
shall be granted access to the Premises on a 24 hour, seven days a week, 365
days a year basis. Tenant shall permit Landlord, Landlord's agents and public
utilities servicing the Building to erect, use and maintain, concealed ducts,
pipes and conduits in and through the Premises. Landlord or Landlord's agents
shall have the right to enter the Premises at all reasonable times to examine
the same, to show them to prospective purchasers, mortgagees or lessees of the
Building or space therein, and to make such decorations, repairs, alterations,
improvements or additions as Landlord may deem necessary or desirable to the
Premises or to any other portion of the Building or which Landlord may elect to
perform following Tenant's failure to make repairs or perform any work which
Tenant is obligated to perform under this Lease, or for the purpose of complying
with laws, regulations or other requirements of government authorities and
Landlord shall be allowed to take all material into and upon the Premises that
may be required therefor without the same constituting an eviction or
constructive eviction of Tenant in whole or in part and the Rent shall in nowise
xxxxx while said decorations, repairs, alterations, improvements, or additions
are being made, by reason of loss or interruption of business of Tenant, or
otherwise. During the one (1) year prior to the Expiration Date or the
expiration of any renewal or extended term, Landlord may exhibit the Premises to
prospective Tenants thereof. If, during the last twelve (12) months of the Term,
Tenant shall have removed all or substantially all of Tenant's property
13
therefrom, Landlord may immediately enter and alter, renovate and redecorate the
Premises, without elimination or abatement of Rent, or incurring liability to
Tenant for any compensation, and such acts shall not be deemed an actual or
constructive eviction and shall have no effect upon this Lease. If Tenant shall
not be personally present to open and permit an entry into the Premises, in the
event of an emergency, Landlord or Landlord's agents may enter the same by a
master key, or may forcibly enter the same, without rendering Landlord or such
agents liable therefor (if during such entry Landlord or Landlord's agents shall
accord reasonable care to Tenant's property), and without in any manner
affecting the obligations and covenants of this Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, supervision or repair of
the Building or any part thereof, other than as herein provided. Landlord also
shall have the right at any time, without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor, to
change the arrangement and/or location of entrances or passageways, doors and
doorways, and corridors, elevators, stairs, toilets, or other public parts of
the Building and to change the name, number or designation by which the Building
is commonly known. In addition, Tenant understands and agrees that Landlord
intends to perform substantial renovation work in and to the public parts of the
Building and the mechanical systems serving the Building (which work may include
the replacement of the building exterior facade and window glass, requiring
access to the same from within the Premises), and that Landlord shall incur no
liability to Tenant, nor shall Tenant be entitled to any abatement of Rent on
account of any noise, vibration or other disturbance to Tenant's business at the
Premises (provided that Tenant is not denied access to said Premises) which
shall arise out of the performance by Landlord of the aforesaid renovations of
the Building. Tenant understands and agrees that all parts (except surfaces
facing the interior of the Premises) of all walls, windows and doors bounding
the Premises (including exterior Building walls, core corridor walls, core
corridor walls, doors and entrances), all balconies, terraces and roofs adjacent
to the Premises, all space in or adjacent to the Premises used for shafts,
stacks, stairways, chutes, pipes, conduits, ducts, fan rooms, heating, air
cooling, plumbing and other mechanical facilities, service closets and other
Building facilities are not part of the Premises, and Landlord shall have the
use thereof, as well as access thereto through the Premises for the purpose of
operation, maintenance, alteration and repair. Any entry upon the Premises by
Landlord or its agents and any work performed by Landlord or its agents therein
pursuant to this Article or any other provision of this Lease shall only be
effected after reasonable prior notice to Tenant (which may be telephonic)
except in the case of an emergency and shall be performed in such manner as to
cause as little disturbance as reasonably possible to Tenant without any
requirement that Landlord utilize overtime or premium pay labor.
15. CERTIFICATE OF OCCUPANCY. Tenant shall not at any time use or occupy the
-------------------------
Premises in violation of the certificate of occupancy issued for the Premises or
for the Building and in the event that
14
any department of the City or State of New York shall hereafter at any time
contend and/or declare by notice, violation, order or in any other manner
whatsoever that the Premises are used for a purpose which is violation of such
certificate of occupancy whether or not such use shall be a Permitted Use,
Tenant shall, upon five (5) days' written notice from Landlord, immediately
discontinue such use of the Premises. Failure by Tenant to discontinue such use
after such notice shall be considered default in fulfillment of covenant of this
Lease and Landlord shall have the right to terminate this Lease immediately, and
in addition thereto shall have the right to exercise any and all rights and
privileges and remedies given to Landlord by and pursuant to the provisions of
Articles 17 and 18 hereof.
16. LANDLORD'S LIABILITY. The obligations of Landlord under this Lease shall not
---------------------
be binding upon Landlord named herein after the sale, conveyance, assignment or
transfer by such Landlord (or upon any subsequent landlord after the sale,
conveyance, assignment or transfer by such subsequent landlord) of its interest
in the Building or the Real Property, as the case may be, and in the event of
any such sale, conveyance, assignment or transfer, Landlord shall be and hereby
is entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser, grantee, assignee or other transferee has assumed and agreed to
carry out any and all covenants and obligations of Landlord hereunder. Neither
the shareholders, directors or officers of Landlord, if Landlord is a
corporation, nor the partners comprising Landlord (nor any of the shareholders,
directors or officers of such partners), if Landlord is a partnership
(collectively, the "Parties"), shall be liable for the performance of Landlord's
obligations under this Lease. Tenant shall look solely to Landlord to enforce
Landlord's obligations hereunder and shall not seek any damages against any of
the Parties. The liability of Landlord for Landlord's obligations under this
Lease shall not exceed and shall be limited to Landlord's interest in the
Building and the Real Property and Tenant shall not look to any other property
or assets of Landlord or the property or assets of any of the Parties in seeking
either to enforce Landlord's obligations under this Lease or to satisfy a
judgement for Landlord's failure to perform such obligations.
17. DEFAULT.
--------
A. Upon the occurrence, at any time prior to or during the Term, of any one
or more of the following events (referred to as "Events of Default"):
(1) if Tenant shall default in payment when due of any installment of
Rent or in the payment when due of any additional rent, and such default
shall continue for a period of ten (10) days after notice by Landlord to
Tenant of such default; or
15
(2) if Tenant shall default in the observance or performance of any
term, covenant or condition of this Lease on Tenant's part to be observed
or performed (other than the covenants for the payment of Rent and
additional rent) and Tenant shall fail to remedy such default within twenty
(20) days after notice by Landlord to Tenant of such default, or if such
default is of such a nature that it cannot be completely remedied within
said period of twenty (20) days and Tenant shall not commence within said
period of twenty (20) days, or shall not thereafter diligently prosecute to
completion all steps necessary to remedy such default; or
(3) if Tenant shall default in the observance or performance of any
term, covenant or condition on Tenant's part to be observed or performed
under any other lease with Landlord or Landlord's predecessor in interest
of space in the Building and such default shall continue beyond any grace
period set forth in such other lease for the remedying of such default; or
(4) if the Premises shall become vacant, deserted or abandoned; or
(5) if Tenant's interest in this Lease shall devolve upon or pass to
any person, whether by operation of law or otherwise, except as may be
expressly permitted under Article 12 hereof; or
(6) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
the present or any future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law, or shall make an
assignment for the benefit of creditors or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any part of Tenant's property ; or
(7) if, within thirty (30) days after the commencement of any
proceeding against Tenant, whether by the filing of petition or otherwise,
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
applicable federal, state or other statute or law, such proceeding shall
not have been dismissed, or if, within thirty (30) days after the
appointment of any trustee, receiver or liquidator of Tenant, or of all or
any part of Tenant's property, without the consent or acquiescence of
Tenant, such appointment shall not have been vacated or otherwise
discharged, or if any execution or attachment shall be issued against
Tenant or any of Tenant's property pursuant to which the Premises shall be
taken or occupied or attempted to be taken or occupied;
then, upon the occurrence, at any time prior to or during the Term, of any one
or more of such Events of Default, Landlord, at any time thereafter, at
Landlord's option, may give to Tenant a five (5) days' notice of termination of
this Lease and, in the event such notice is given, this Lease and the Term shall
come to an end and expire (whether or not the Term shall have commenced) upon
the
16
expiration of said five (5) days with the same effect as if the date of
expiration of said five (5) days were the Expiration Date, but Tenant shall
remain liable for damages as provided in Article 18 hereof.
B. If, at any time, (i) Tenant shall be comprised of two (2) or more
persons, or (ii) Tenant's obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
Lease shall have been assigned, the word "Tenant", as used in clauses (6) and
(7) of subsection A of this Article 17, shall be deemed to mean any one or more
of the persons primarily or secondarily liable for Tenant's obligations under
this Lease. Any monies received by Landlord from or on behalf of Tenant during
the pendently of any proceeding of the types referred to in said clauses (6) and
(7) shall be deemed paid as compensation for the use and occupation of the
Premises and the acceptance of any such compensation by Landlord shall not be
deemed an acceptance of rent or waiver on the part of Landlord of any rights
under said subsection A.
18. REMEDIES AND DAMAGES.
---------------------
A. (1) If Tenant shall default in the payment when due of any installment
of Rent or in the payment when due of any additional rent, or if any execution
or attachment shall be issued against Tenant or any of Tenant's property
whereupon the Premises shall be taken or occupied or attempted to be taken or
occupied by someone other than Tenant, or if Tenant shall fail to move into or
take possession of the Premises within thirty (30) days after the Commencement
Date, or if this Lease and the Term shall expire and come to an end as provided
in Article 17:
(a) Landlord and its agents and servants may immediately, or at any
time after such default or after the date upon which this Lease and the
Term shall expire and come to an end, re-enter the Premises or any part
thereof, without notice, either by summary proceedings, or by any other
applicable action or proceeding, or by force or otherwise (without being
liable to indictment, prosecution or damages therefor), and may repossess
the Premises and dispossess Tenant and any other persons from the Premises
and remove any and all of their property and effects from the Premises; and
(b) Landlord, at Landlord's option, may relet the whole or any part or
parts of the Premises from time to time, either in the name of Landlord or
otherwise, to such tenant or tenants, for such term or terms ending before,
on or after the Expiration Date, at such rental or rentals and upon such
other conditions, which may include concessions and free rent periods, as
Landlord, in its sole discretion, may determine. Landlord shall have no
obligation to relet the Premises or any part thereof and shall in no event
be liable for refusal or failure to relet the Premises or any part thereof,
or, in the event of any such reletting, for refusal or failure to collect
any rent due upon any such reletting, and no such refusal or failure shall
operate to relieve Tenant of any liability under this Lease or otherwise to
affect any such liability;
17
Landlord, at Landlord's option, may make such repairs, replacements,
alterations, additions, improvements, decorations and other physical
changes in and to the Premises as Landlord, in its sole discretion,
considers advisable or necessary in connection with any such reletting or
proposed reletting, without relieving Tenant of any liability under this
Lease or otherwise affecting any such liability.
(2) Tenant hereby waives the service of any notice of intention to re-enter
or to institute legal proceedings to that end which may otherwise be required to
be given under any present or future law. Tenant, on its own behalf and on
behalf of all persons claiming through or under Tenant, including all creditors,
does further hereby waive any and all rights which Tenant and all such persons
might otherwise have under any present or future law to redeem the Premises, or
to re-enter repossess the Premises, or to restore the operation of this Lease,
after (i) Tenant shall have been dispossessed by judgment or by warrant of any
court or judge, or (ii) any re-entry by Landlord, or (iii) any expiration or
termination of this Lease and the Term, whether such dispossess, re-entry,
expiration or termination shall be by operation or law or pursuant to the
provisions of this Lease. The words "re-enter", "re-entry" and "re-entered" as
used in this Lease shall not be deemed to be restricted to their technical legal
meanings. In the event of a breach or threatened breach by Tenant, or any
persons claiming through or under Tenant, of any term, covenant or condition of
this Lease on Tenant's part to be observed or performed, Landlord shall have the
right to enjoin such breach and the right to invoke any other remedy allowed by
law in equity as if re-entry, summary proceedings and other special remedies
were not provided in this Lease for such breach. The right to invoke the
remedies hereinbefore set forth are cumulative and shall not preclude Landlord
from invoking any other remedy allowed at law or in equity.
B. (1) If this Lease and the Term shall expire and come to an end as
provided in Article 17, or by or under any summary proceeding or any other
action or proceeding, or if Landlord shall re-enter the Premises as provided in
subsection A of this Article 18, or by or under any summary proceeding or any
other action or proceeding, then, in any of said events:
(a) Tenant shall pay to Landlord all Rent, additional rent and other
charges payable under this Lease by Tenant to Landlord to the date upon
which this Lease and the Term shall have expired and come to an end or to
the date of re-entry upon the Premises by Landlord, as the case may be;
(b) Tenant also shall be liable for and shall pay to Landlord, as
damages, any deficiency (referred to as "Deficiency") between the Rent
reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the Term and the net amount, if any,
of rents collected under any reletting effected pursuant to the provisions
of subsection A(1) of this Article 18 for any part of such period (first
deducting from the rents collected under any such reletting all of
Landlord's expenses in connection with the termination of this Lease, or
Landlord's re-entry upon the Premises and with such reletting including,
but not
18
limited to, all repossession costs, brokerage commissions, legal expenses,
attorneys' fees and disbursements, alteration costs and other expenses of
preparing the Premises for such reletting); any such Deficiency shall be
paid in monthly installments by Tenant on the days specified in this Lease
for payment of installments of Rent, Landlord shall be entitled to recover
from Tenant each monthly Deficiency as the same shall arise, and no suit to
collect the amount of the Deficiency for any month shall prejudice
Landlord's right to collect the Deficiency for any subsequent month by
similar proceeding; and
(c) whether or not Landlord shall have collected any monthly
Deficiencies as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiencies as and for liquidated and agreed final damages, a sum equal to
the amount by which the Rent reserved in this Lease for the period which
otherwise would have constituted the unexpired portion of the Term exceeds
the then fair and reasonable rental value of the Premises for the same
period, less the aggregate amount of Deficiencies theretofore collected by
Landlord pursuant to the provisions of subsection B(l)(b) of this Article
18 for the same period; if, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the Premises, or any part
thereof, shall have been relet by Landlord for the period which otherwise
would have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent reserved upon such reletting shall be deemed,
prima facie, to be the fair and reasonable rental value for the part or the
whole of the Premises so relet during the term of the reletting.
(2) If the Premises, or any part thereof, shall be relet together with
other space in the space in the Building, the rents collected or reserved under
any such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this subsection B. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the Rent reserved in this Lease. Solely for the purpose
of this Article, the term "Rent" as used in subsection B(1) of this Article 18
shall mean the Rent in effect immediately prior to the date upon which this
Lease and the Term shall have expired and come to an end, or the date of
re-entry upon the Premises by Landlord, as the case may be, adjusted to reflect
any increase or decrease pursuant to the provisions of Article 28 hereof for the
Comparison Year (as defined in said Article 28) immediately preceding such
event. Nothing contained in Article 17 or this Article 18 shall be deemed to
limit or preclude the recovery by Landlord from Tenant of the maximum amount
allowed to be obtained as damages by any statute or rule of law, or of any sums
or damages to which Landlord may be entitled in addition to the damages set
forth in subsection B(1) of this Article 38.
19. FEES AND EXPENSES.
------------------
19
A. Curing Tenant's Defaults. If Tenant shall default in the observance or
-------------------------
performance of any tern 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, Landlord may immediately or at any time thereafter on five (5) days'
notice perform the same for the account of Tenant, and if Landlord makes any
expenditures or incurs any obligations for the payment of money in connection
therewith including, but not limited to reasonable attorney's fees and
disbursements in instituting, prosecuting or defending any action or proceeding,
such sums paid or obligations incurred with interest and costs shall be deemed
to be additional rent hereunder and shall be paid by Tenant to Landlord within
(5) days of rendition of any xxxx or statement to Tenant therefor.
B. Late Charges. If Tenant shall fail to make payment of any installment of
-------------
Rent or any additional rent within ten (10) days after the date when such
payment is due, Tenant shall pay to Landlord, in addition to such installment of
Rent or such additional rent, as the case may be, as a late charge and as
additional rent, a sum based on rate equal to the lesser of (i) two percent (2%)
per annum above the then current prime rate charged by Citibank, N.A. or its
successor and (ii) the maximum rate permitted by applicable law, of the amount
unpaid computed from the date such payment was due to and including the date of
payment.
20. NO REPRESENTATIONS BY LANDLORD. Landlord or Landlord's agents have made no
-------------------------------
representations or promises with respect to the Building, the Real Property, the
Premises, square footage of the Premises, or Taxes (as defined in Article 28
hereof) except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth herein. All references in this Lease to the consent or approval of
Landlord shall be deemed to mean the written consent of Landlord or the written
approval of Landlord and no consent or approval of Landlord shall be effective
for any purpose unless such consent or approval is set forth in written
instrument executed by Landlord.
21. END OF TERM. Upon the expiration or other termination of the Term, Tenant
------------
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, ordinary wear and tear and damage for which Tenant is not
responsible under the terms of this Lease excepted, and Tenant may remove all of
its property pursuant to Article 3 hereof. Tenant's obligation to observe or
perform this covenant shall survive the expiration or sooner termination of the
Term. If the last day of the Term or any renewal thereof falls on Saturday or
Sunday this Lease shall expire on the business day immediately preceding. Tenant
expressly waives, for itself and for any person claiming through or under
Tenant, any rights which Tenant or any such person may have under the provisions
of Section 2201 of the New York Civil Practice Law and Rules and of any
successor law of like import then in force in connection with any holdover
summary proceedings which Landlord may institute to enforce the foregoing
provisions of this Article 21. In addition, the parties recognize and agree that
the damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises as aforesaid will be substantial, will exceed the
amount of the monthly
20
installments of the Rent theretofore payable hereunder, and will be impossible
to accurately measure. Tenant therefore agrees that if possession of the
Premises is not surrendered to Landlord within twenty-four (24) hours after the
Expiration Date or sooner termination of the Term, in addition to any other
rights or remedy Landlord may have hereunder or at law, Tenant shall pay to
Landlord for each month and for each portion of any month during which Tenant
holds over in the Premises after the Expiration Date or sooner termination of
this Lease, a sum equal to two (2) times the aggregate of that portion of the
Rent which was payable under this Lease during the last month of the Term.
Nothing herein contained shall be deemed to permit Tenant to retain possession
of the Premises after the Expiration Date or sooner termination of this Lease
and no acceptance by Landlord of payments from Tenant after the Expiration Date
or sooner termination of the Term shall be deemed to be other than on account of
the amount to be paid by Tenant in accordance with the provisions of this
Article 21, which provisions shall survive the Expiration Date or sooner
termination of this Lease.
22. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon Tenant
----------------
paying the Rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the Premises subject, nevertheless, to the terms
and conditions of this Lease including, but not limited to, Article 16 hereof
and to all Superior Leases and Mortgages.
23. FAILURE TO GIVE POSSESSION. Tenant waives any right to rescind this Lease
---------------------------
under Section 223-a of the New York Real Property Law or any successor statute
of similar import then in force and further waives the right to recover any
damages which may result from Landlord's failure to deliver possession of the
Premises on the date set forth in Article 1 hereof for the commencement of the
Term. If Landlord shall be unable to give possession of the Premises on such
date, and provided Tenant is not responsible for such inability to give
possession, the Rent reserved and covenanted to be paid herein shall not
commence until the possession of the Premises is given or the Premises are
available for occupancy by Tenant, and no such failure to give possession on
such date shall in anywise affect the validity of this Lease or the obligations
of Tenant hereunder or give rise to any claim for damages by Tenant or claim for
rescission of this Lease, nor shall same be construed in anywise to extend the
Term. If permission is given to Tenant to enter into the possession of the
Premises or to occupy premises other than the Premises prior to the Commencement
Date, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this Lease,
including the covenant to pay Rent.
24. NO WAIVER. If there be any agreement between Landlord and Tenant providing
----------
for the cancellation of this Lease upon certain provisions or contingencies
and/or an agreement for the renewal hereof at the expiration of the Term, the
right to such renewal or the execution of renewal agreement between Landlord and
Tenant prior to the expiration of the Term shall not be considered an extension
thereof or vested right in Tenant to such further term,
21
so as to prevent Landlord from cancelling this Lease and any such extension
thereof during the remainder of the original Term; such privilege, if and when
so exercised by Landlord, shall cancel and terminate this Lease and any such
renewal or extension previously entered into between Landlord and Tenant or the
right of Tenant to any such renewal or extension; any right herein contained on
the part of Landlord to cancel this Lease shall continue during any extension or
renewal hereof; any option on the part of Tenant herein contained for an
extension or renewal hereof shall not be deemed to give Tenant any option for
further extension beyond the first renewal or extended term. No act or thing
done by Landlord or Landlord's agents during the Term shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing signed by Landlord. No employee of
Landlord or of Landlord's agents shall have any power to accept the keys of the
Premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord's agents shall not operate as termination of
this Lease or surrender of the Premises. In the event Tenant at any time desires
to have Landlord sublet the Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purpose without
releasing Tenant from any of the obligations under this Lease, and Tenant hereby
relieves Landlord of any liability for loss of or damage to any of Tenant's
effects in connection with such subletting. Except as otherwise expressly
provided in this Lease, the failure of either party to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations set forth or
hereafter adopted by Landlord, shall not prevent a subsequent act, which would
have originally constituted a violation, from having all force and effect of an
original violation. The receipt by Landlord or the payment by Tenant of Rent
with knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the Rules and
Regulations set forth, or hereafter adopted, against Tenant and/or any other
tenant in the Building shall not be deemed a waiver of any such Rules and
Regulations. Except as otherwise expressly provided in this Lease, no provision
of this Lease shall be deemed to have been waived by either party unless such
waiver be in writing signed by such party. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly Rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated Rent, or as
Landlord may elect to apply same, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy in this Lease provided. This Lease contains the entire agreement
between the parties and all prior negotiations and agreements are merged in this
Lease. Any executory agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment of it in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
25. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between Landlord and
------------------------
Tenant that the respective parties hereto shall
22
and they hereby do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
and/or any claim of injury or damage, or for the enforcement of any remedy under
any statute, emergency or otherwise. It is further mutually agreed that in the
event Landlord commences any summary proceeding for nonpayment of rent, Tenant
will not interpose any counterclaim (except for mandatory or compulsory
counterclaims) of whatever nature or description in any such proceeding unless
the failure to interpose such counterclaim would operate as waiver of Tenant's
right to assert such counterclaim in separate proceeding.
26. INABILITY TO PERFORM. This Lease and the obligation of Tenant to pay rent
--------------------
hereunder and perform all of the other covenants and agreements hereunder on the
part of Tenant to be performed shall in nowise be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this Lease
expressly or implied to be performed by Landlord or because Landlord is unable
to make, or is delayed in making any repairs, additions, alterations,
improvements or decorations or is unable to supply or is delayed in supplying
any equipment or fixtures if Landlord is prevented or delayed from so doing by
reason of strikes or labor troubles or by accident or by any cause whatsoever
reasonably beyond Landlord's control, including but not limited to, laws,
governmental preemption in connection with a National Emergency or by reason of
any rule, order or regulation of any federal, state, county or municipal
authority or any department or subdivision thereof or any government agency or
by reason of the conditions of supply and demand which have been or are affected
by war or other emergency.
27. BILLS AND NOTICES. Except as otherwise expressly provided in this Lease, any
------------------
bills, statements, notices, demands, requests or other communications given or
required to be given under this Lease shall be deemed sufficiently given or
rendered if in writing, sent by registered or certified mail (return receipt
requested) addressed (a) to Tenant (i) at Tenant's address set forth in this
Lease if mailed prior to Tenant's taking possession of the Premises, or (ii) at
the Building if mailed subsequent to Tenant's taking possession of the Premises,
or (iii) Xxxxxxxxx & Xxxxx, P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
Attention: Xxxx X. Xxxxxxxxx, Esq., or (iv) any place where Tenant or any agent
or employee of Tenant may be found if mailed subsequent to Tenant's vacating,
deserting, abandoning or surrendering the Premises, or (b) to Landlord at
Landlord's address set forth in this Lease, with copy to: Dino & Sons Realty
Corp., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: J. Xxxxxxx Xxxx, Esq.,
or (c) to such other address as either Landlord or Tenant may designate as its
new address for such purpose by notice given to the others in accordance with
the provisions of this Article 27. Any such xxxx, statement, demand, notice,
request or other communication shall be deemed to have been rendered or given
two (2) days after the date when it shall have been mailed as provided in this
Article 27.
23
28. ESCALATION.
-----------
A. In determination of any increase in the Rent under the provisions of
this Article 28, Landlord and Tenant agree as follows:
(1) "Taxes" shall mean the aggregate amount of real estate taxes and
any special assessments (exclusive of penalties and interest thereon)
imposed upon the Real Property (including, without limitation, (i)
assessments made upon or with respect to any "air rights", and (ii) any
assessments levied after the date of this Lease for public benefits to the
Real Property or the Building (excluding an amount equal to the assessments
payable in whole or in part during or for the Base Tax Year (as defined in
Article 1 of this Lease) which assessments, if payable in installments,
shall be deemed payable in the maximum number of permissible installments
(in the manner in which such taxes and assessments are imposed as of the
date hereof); provided, that if because of any change in the taxation of
real estate, any other tax or assessment (including, without limitation,
any occupancy, gross receipts or rental tax) is imposed upon Landlord or
the owner of the Real Property or the Building, or the occupancy, rents or
income therefrom, in substitution for or in addition to, any of the
foregoing Taxes, such other tax or assessment shall be deemed part of the
Taxes. In the event that the Real Property or the Building is subject to
transitional and target Assessed Valuation with respect to any Tax Year,
Taxes shall be calculated based upon the Assessed Valuation actually used
for such Tax Year and not any target Assessed Valuation. With respect to
any Comparison Year (hereinafter defined) all expenses, including
reasonable attorneys' fees and disbursements, experts' and other witnesses'
fees, incurred in contesting the validity or amount of any Taxes or in
obtaining refund of Taxes shall be considered as part of the Taxes for such
year.
(2) "Assessed Valuation " shall mean the amount for which the Real
Property is assessed pursuant to applicable provisions of the New York City
Charter and of the Administrative Code of the City of New York for the
purpose of imposition of Taxes.
(3) "Tax Year" shall mean the period July 1 through June 30 (or such
other period as hereinafter may be duly adopted by the City of New York as
its fiscal year for real estate tax purposes).
(4) "Base Taxes" shall mean the aggregate Taxes payable for the Base
Tax Year.
(5) "Comparison Year" shall mean with respect to Taxes, any Tax Year
subsequent to the Base Tax Year.
(6) "Landlord's Statement" shall mean an instrument or instruments
containing comparison of any increase or decrease in the Rent for the
preceding Comparison Year pursuant to the provisions of this Article 28.
B. If the Taxes payable for any comparison Year (any part or all of which
falls within the Term) shall represent an increase
24
above the Base Taxes, then the Rent for such Comparison Year and continuing
thereafter until new Landlord's Statement is rendered to Tenant, shall be
increased by Tenant's Proportionate Share of such increase. The Taxes shall be
initially computed on the basis of the Assessed Valuation in effect at the time
Landlord's Statement is rendered (as the Taxes may have been settled or finally
adjudicated prior to such time) regardless of any then pending application,
proceeding or appeal respecting the reduction of any such Assessed Valuation,
but shall be subject to subsequent adjustment as provided in subsection D(1)(a)
of this Article 28.
C. (1) At any time prior to, during or after any Comparison Year Landlord
shall render to Tenant, either in accordance with the provisions of Article 27
hereof or by personal delivery at the Premises, a Landlord's Statement or
Statements showing separately or together a comparison of the Taxes payable for
the Comparison Year with the Base Taxes, and the amount of the increase in the
Rent resulting from each of such comparisons. Landlord's failure to render
landlord's Statement during or with respect to any Comparison Year shall not
prejudice a Landlord's right to render Landlord's Statement during or with
respect to any subsequent Comparison Year, and shall not eliminate or reduce
Tenant's obligation to pay increases in the Rent pursuant to this Article 28 for
such Comparison Year.
(2) (a) With respect to an increase in the Rent resulting from an
increase in the Taxes for any Comparison Year above the Base Taxes, Tenant
shall pay to Landlord a sum equal to one-half (1/2) of such increase on the
first day of June and a sum equal to one-half (1/2) of such increase on the
first day of December of each calendar year. If Landlord's Statement shall
be furnished to Tenant after the commencement of the Comparison Year to
which it relates, then (i) until Landlord's Statement is rendered for such
Comparison Year, Tenant shall pay Tenant's Proportionate Share of Taxes for
such Comparison Year in semi-annual installments, as described above, based
upon the last prior Landlord's Statement rendered to Tenant with respect to
Taxes, and (ii) Tenant shall, within ten (10) days after Landlord's
Statement is furnished to Tenant, pay to Landlord an amount equal to any
underpayment of the installments of Taxes theretofore paid by Tenant for
such Comparison Year and, in the event of an overpayment by Tenant,
Landlord shall permit Tenant to credit against Rent the amount of such
overpayment except that in the event the Term has expired, Landlord shall
promptly refund such overpayment to Tenant. If during the Term of this
Lease, Taxes are required to be paid (either to the appropriate taxing
authorities or as tax escrow payments to a mortgagee or ground lessor) in
full or in monthly, quarterly, or other installments, on any other date or
dates than as presently required, then, at Landlord's option, Tenant's
Proportionate Share with respect to Taxes shall be correspondingly
accelerated or revised so that Tenant's Proportionate Share is due at least
thirty (30) days prior to the date payments are due to the taxing
authorities or the superior mortgagee or ground lessor, as the case may be.
The benefit of any discount for any early payment or prepayment of Taxes
shall accrue solely to the benefit of Landlord, and such discount shall not
be subtracted from Tenant's Proportionate Share of such Taxes.
25
(b) Following each Landlord's Statement, reconciliation shall be
made as follows: Tenant shall be debited with any increase in the Rent
shown on such Landlord's Statement and credited with the aggregate, if
any, paid by Tenant on account in accordance with the provisions of
subsection C(2)(a) or C(2)(b) for the Comparison Year in question;
Tenant shall pay any net debit balance to Landlord within fifteen (15)
days next following rendition by Landlord, either in accordance with
the provisions of Article 27 hereof or by personal delivery to the
Premises, of an invoice for such net debit balance; any net credit
balance shall be applied against the next accruing monthly
installments of Rent and additional rent, except that in the event the
Term has expired, Landlord shall promptly refund any overpayment to
Tenant.
D. (1) (a) In the event that, after Landlord's Statement has been sent to
Tenant, an Assessed Valuation which had been utilized in computing the Taxes for
Comparison Year is reduced (as a result of settlement, final determination of
legal proceedings or otherwise), and as a result thereof a refund of Taxes is
actually received by or on behalf of Landlord, then, promptly after receipt of
such refund, Landlord shall send Tenant a statement adjusting the Taxes for such
Comparison Year (taking into account the expenses mentioned in the last sentence
of subsection A (1) of this Article 28) and setting forth Tenant's Proportionate
Share of such refund and Tenant shall be entitled to receive such Share by way
of a credit against the Rent next becoming due after the sending of such
Statement; provided, however, that Tenant's Share of such refund shall be
limited to the amount, if any, which Tenant had theretofore paid to Landlord as
increased Rent for such Comparison Year on the basis of the Assessed Valuation
before it had been reduced.
(b) In the event that, after Landlord's Statement has been sent to
Tenant, the Assessed Valuation which had been utilized in computing the
Base Taxes is reduced (as a result of settlement, final determination of
legal proceedings or otherwise) then, and in such event: (i) the Base Taxes
shall be retroactively adjusted to reflect such reduction, (ii) the monthly
installment of Rent shall be increased accordingly and (iii) all
retroactive additional rent resulting from such retroactive adjustment
shall be forthwith payable when billed by Landlord. Landlord promptly shall
send to Tenant a statement setting forth the basis for such retroactive
adjustment and additional rent payments.
(2) Any Landlord's Statement sent to Tenant shall be conclusively
binding upon Tenant unless, within forty-five (45) days after such
statement is sent, Tenant shall (i) pay to Landlord the amount set forth in
such statement, without prejudice to Tenant's right to dispute the same,
and (ii) send a written notice to Landlord objecting to such statement and
specifying the respects in which such statement is claimed to be incorrect.
If such notice is sent, the parties recognize the unavailability of
Landlord's books and records because of the confidential nature thereof and
hence agree that either party may refer the decision of the issues raised
to a reputable independent firm of certified public accountants
26
selected by Landlord and reasonably acceptable to tenant, and the decision
of such accountants shall be conclusively binding upon the parties. The
fees and expenses involved in such decision shall be borne by the
unsuccessful party (and if both parties are partially unsuccessful, the
accountants shall apportion the fees and expenses between the parties based
on the degree of success of each party).
(3) Anything in this Article 28 to the contrary notwithstanding, under
no circumstances shall the rent payable under this Lease be less than the
Rent set forth in Article 1 hereof.
(4) The expiration or termination of this Lease during any Comparison
Year for any part or all of which there is an increase in the Rent under
this Article shall not affect the rights or obligations of the parties
hereto respecting such increase and any Landlord's Statement relating to
such increase may, on pro rata basis, be sent to Tenant subsequent to, and
all such rights and obligations shall survive, any such expiration or
termination. Any payments due under such Landlord's Statement shall be
payable within twenty (20) days after such statement is sent to Tenant.
E. If any capital improvement is made to the Real Property during any
calendar year during the Term in compliance with requirements of any Federal,
state or local law or governmental regulation (other than Local Law 10 and Local
Law 5 outside the Premises as such local laws are currently enacted) whether or
not such law or regulation is valid or mandatory, then Tenant shall pay to
Landlord, immediately upon demand therefor, Tenant's Proportionate Share of the
reasonable annual amortization, with interest, of the cost of such improvement
in each calendar year during the Term during which such amortization occurs.
29. SERVICES.
---------
A. Elevator. Landlord shall provide passenger elevator facilities on
--------
business days from 8:00 A.M. to 6:00 P.M. and shall have one passenger elevator
in the bank of elevators servicing the Premises available at all other times 24
hours a day, seven days a week. Landlord shall provide freight elevator services
on an "as available" basis for incidental use by Tenant. Any extended use may be
arranged with Landlord's prior consent and Tenant shall pay as additional rent
all building standard charges therefor.
B. Heating. Landlord shall furnish heat to the Premises when and as
-------
required by law, on business days from 8:00 A.M. to 6:00 P.M. Landlord is not
responsible for the adequacy, design or capacity of the heat distribution system
serving the Building.
C. Cooling. Tenant shall have the privilege of using the air-cooling system
-------
presently serving the Premises which system Landlord agrees will be in good
working order as of the Commencement date. Tenant agrees to maintain and repair
the system within the Premises only, at its own cost and expense. Tenant shall
not alter, modify or replace such air-cooling system, or any part thereof,
without Landlord's consent, which shall not be unreasonably withheld. Anything
in this subsection C to the contrary
27
notwithstanding, Landlord shall not be responsible if the normal operation of
the air-cooling system shall fail to provide cooled air at reasonable
temperatures, pressures or degrees of humidity or any reasonable volumes or
velocities in any parts of the Premises by reason of (i) human occupancy factors
and any machinery or equipment installed by or on behalf of Tenant or any person
claiming through or under Tenant, having an electrical load in excess of the
average electrical load for the air-cooling system as designed, (ii) any
rearrangement of partitioning or other Alterations made or performed by or on
behalf of Tenant or any person claiming through or under Tenant, or (iii) the
inadequate design or capacity of the existing cooling system. Tenant agrees to
keep and cause to be kept closed all of the windows in the Premises whenever the
air-cooling system is in operation and agrees to lower and close the blinds when
necessary because of the sun's position whenever the air-cooling system is in
operation. Tenant at all times agrees to cooperate fully with and abide by all
rules, regulations and requirements applicable to such air-cooling system.
Tenant shall pay for the costs of electrical energy consumed by the air-cooling
system in accordance with the provisions of Article 29, Subsection H, hereof.
Tenant shall have the right to install, at its own cost and expense, an
"air-cooled" air conditioning unit to service all or any part of the Premises,
and Landlord shall use best efforts to make available to Tenant that Building
common space (i.e. outside tier roof areas) as is practical for this purpose.
D. After Hours and Additional Services. The Rent does not include any
-----------------------------------
charge to Tenant for the furnishing of any additional passenger elevator
facilities, any freight elevator facilities (other than as contemplated in
Article 29 subsection A) or for the service of heat or mechanical ventilation to
the Premises during periods other than the hours and days set forth in sections
A and B of this Article 29 for the furnishing and distributing of such
facilities or services (referred to as "Overtime Periods"). Accordingly, if
Landlord shall furnish any (i) passenger elevator facilities to Tenant during
Overtime Periods or freight elevator facilities, except as provided in
subsection A of this Article 29, or (ii) heat to the Premises during Overtime
Periods, then Tenant shall pay Landlord additional rent for such facilities or
services at the standard rates then fixed by the Landlord for the Building or,
if no such rates are then fixed, at reasonable rates. Neither the facilities nor
the services referred to in this Article 29D shall be furnished to Tenant or the
Premises if Landlord has not received advance notice from Tenant specifying the
particular facilities or services requested by Tenant at least twenty-four (24)
hours prior to the date on which the facilities or services are to be furnished;
or if Tenant is in default under or in breach of any of the terms, covenants or
conditions of this Lease; or if Landlord shall determine, in its sole and
exclusive discretion, that such facilities or services are requested in
connection with, or the use thereof shall create or aid in default under or
breach of any term, covenant or condition of this Lease. All of the facilities
and services referred to in this Article 29D are conveniences an are not and
shall not be deemed to be appurtenances to the Premises, and the failure of
Landlord to furnish any or all of such facilities or services shall not
constitute or give rise to any claim of an actual or constructive eviction, in
whole or in part, or entitle Tenant to
28
any abatement or diminution of 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. If more than one tenant
utilizing the same system as Tenant requests the same Overtime Periods for the
same services as Tenant, the charge to Tenant shall be adjusted pro rata. In the
event Tenant installs a supplemental air cooling system in the Premises, and if
condenser water for such system shall be supplied by Landlord, Tenant shall pay
to Landlord, annually upon demand, a sum equal to $500 per ton of air
conditioning capacity to compensate Landlord for the cost of supplying condenser
water for such supplemental system.
E. Cleaning. Landlord at Landlord's expense, shall cause the Building to be
---------
kept clean in building standard manner. The Premises are to be kept clean by
Tenant, it shall be done at Tenant's sole expense, in a manner satisfactory to
Landlord and no one other than persons approved by Landlord shall be permitted
to enter the Premises or the Building for such purpose. Tenant shall pay to
Landlord the cost of removal of any of Tenant's refuse and rubbish from the
Premises and the Building to the extent that the same exceeds the refuse and
rubbish usually attendant upon the use of such Premises as offices. Bills for
the same shall be rendered by Landlord to Tenant at such time as Landlord may
elect and shall be due and payable when rendered and the amount of such bills
shall be deemed to be, and be paid as additional rent. Tenant shall, however,
have the option of independently contracting for the removal of such refuse and
rubbish in the event that Tenant does not wish to have same done by employees of
Landlord. Under such circumstances, however, the removal of such refuse and
rubbish by others shall be subject to such rules and regulations, as in the
judgment of Landlord, are necessary for the proper operation of the Building.
F. Sprinkler System. If there now is or shall be installed in the Building
-----------------
a "sprinkler system", and such system or any of its appliances shall be damaged
or injured or not in proper working order by reason of any act or omission of
Tenant, Tenant's agents, servants, employees, licensees or visitors, Tenant
shall forthwith restore the same to good working condition at its own expense;
and if the New York Board of Fire Underwriters or the New York Insurance Rating
Organization or any bureau, department or official of the state of city
government, shall require or recommend that any changes, modifications,
alterations or additional sprinkler heads or other equipment be made or supplied
by reason of Tenant's business, or the location of the partitions, trade
fixtures, or other contents of the Premises, Tenant shall, at Tenant's expense,
promptly make and supply such changes, modifications, alterations, additional
sprinkler heads or other equipment.
G. Water. If Tenant requires, uses or consumes water for any purpose in
------
addition to ordinary drinking, cleaning or lavatory purposes, Landlord may
install a water meter and thereby measure Tenant's water consumption for all
purposes. In such an event (a) Tenant shall pay Landlord for the cost of the
meter and the cost of the installation thereof and through the duration of
Tenant's
29
occupancy Tenant shall keep said meter and installation equipment in good
working order and repair at Tenant's own cost and expense in default of which
Landlord may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant; (b) Tenant agrees to pay for water
consumed, as shown on said meter as when bills are rendered, and on default in
making such payment Landlord may pay such charges and collect the same from
Tenant; (c) and Tenant covenants and agrees to pay the sewer rent, charge or any
other tax, rent, levy or charge which now or hereafter is assessed, imposed or
shall become a lien upon the Premises or the realty of which they are part
pursuant to law, order or regulation made or issued in connection with any such
metered use, consumption, maintenance or supply of water, water system, or
sewage or sewage connection or system. The xxxx rendered by Landlord for the
above shall be based upon Tenant's consumption and shall be payable by Tenant as
additional rent within five (5) days of rendition. Any such costs or expenses
incurred or payments made by Landlord for any of the reasons or purposes
hereinabove stated shall be deemed to be additional rent payable by Tenant and
collectible by Landlord as such. Independently of and in addition to any of the
remedies reserved to Landlord hereinabove or elsewhere in this Lease. Landlord
any xxx for and collect any monies to be paid by Tenant or paid by Landlord for
any of the reasons or purposes hereinabove set forth.
H. Electricity Service.
--------------------
1) Landlord at Landlord's expense, shall redistribute or furnish
electrical energy to or for the use of Tenant in the Premises for the
operation of the lighting fixtures and the electrical receptacles installed
in the Premises on the Commencement Date. Landlord, at Landlord's expense,
may install sub-meters to measure Tenant's consumption of electrical
energy. Tenant shall pay to Landlord, as additional rent, on demand, from
time to time, but no more frequently than monthly, for its consumption of
electrical energy at the then applicable rate for sub-metered electrical
energy, plus Landlord's reasonable charge for overhead and supervision.
Where more than one meter measures the electrical service to Tenant, the
electrical service rendered through each meter shall be computed and billed
separately in accordance with the provisions herein above set forth. Bills
for such amounts shall be rendered to Tenant at such time as Landlord may
elect. The rate to be paid by Tenant for sub-metered electrical energy
shall include any taxes or other charges in connection therewith. If any
tax shall be imposed upon Landlord's receipts from the sale or resale of
electrical energy to Tenant, the pro rata share of such tax allocable to
the electrical energy service received by Tenant shall be passed on to,
included in the xxxx of, and paid by Tenant if and to the extent permitted
by law.
2) If either the quantity or character of electrical service is
changed by the public utility or other company supplying electrical service
to the Building or is no longer available or suitable for Tenant's
requirements, no such change, unavailability or unsuitability shall
constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of Rent, or relieve Tenant
from any of its obligations under this Lease, or impose any liability upon
Landlord, or its
30
agents, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
3) Any additional feeders or risers to be installed to supply Tenant's
additional electrical requirements, and all other equipment proper and
necessary in connection with such feeders or risers, shall be installed by
Landlord upon Tenant's request, at the sole cost and expense of Tenant,
provided that, in Landlord's judgement, such additional feeders or risers
are necessary and are permissible under applicable laws and insurance
regulations and the installation of such feeders or risers will not cause
permanent damage or injury to the Building or Premises or cause or create
dangerous or hazardous condition or entail excessive or unreasonable
alterations or interfere with or disturb other tenant's or occupants of the
Building. Tenant covenants that at no time shall the use of electrical
energy in the Premises exceed the capacity of the existing feeders or
wiring installations then serving the Premises. Tenant shall not make or
perform, or permit the making or performance of, any Alterations to wiring
installations or other electrical facilities in or serving the Premises or
any additions to the business machines, office equipment or other
appliances in the Premises which utilize electrical energy without the
prior consent of Landlord in each -instance. Any such Alterations,
additions or consent by Landlord shall be subject to the provisions of this
subsection, as well as to other provisions of this Lease including, but not
limited to, the provisions of Article 3 hereof.
4) Landlord reserves the right to discontinue furnishing electricity
to Tenant in the Premises on not less than thirty (30) days notice to
Tenant. If Landlord exercises such right to discontinue, or is compelled to
discontinue furnishing electricity to Tenant, this Lease shall continue in
full force and effect and shall be unaffected thereby, except only that
from and after the effective date of such discontinuance, Landlord shall
not be obligated to furnish electricity to Tenant. If Landlord so
discontinues furnishing electricity to Tenant, Tenant shall arrange to
obtain electricity directly from the public utility or other company
servicing the Building. Such electricity shall be furnished to Tenant by
means of the then existing electrical facilities serving the Premises, to
the extent that the same are available, suitable and safe for such
purposes. All meters and all additional panel boards, feeders, risers,
wiring and other conductors and equipment which may be required to obtain
electricity, of substantially the same quantity, quality and character,
shall be installed by Landlord, at Tenant's reasonable cost and expense.
Landlord shall not voluntarily discontinue furnishing electricity to Tenant
unless it likewise discontinues furnishing electricity to all tenants of
office space above the second floor of the Building, or until Tenant is
able to receive electricity directly from the public utility or other
company servicing the Building.
5) Landlord shall not be liable to Tenant in any way for any
interruption, curtailment or failure, or defect in the supply or character
of electricity furnished to the Premises by reason of any requirement, act
or omission of any public utility or other company servicing the Building
with electricity or for any other reason except Landlord's gross negligence
or willful misconduct.
31
I. Interruption of Services. Landlord reserves the right to stop service of
-------------------------
the heating system during any period of violation or breach by Tenant of the
provisions of this Article 29 and to stop the service of the heating system or
the elevator, electrical, plumbing or other mechanical systems or facilities in
the Building when necessary, by reason of accident or emergency, or for repairs,
additions, alterations, replacements, decorations or improvements in the
judgement of Landlord desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed. Landlord
shall have no responsibility or liability for interruption, curtailment or
failure to supply heat, elevator, plumbing or electricity when prevented by
exercising its right to stop service or by strides, labor troubles or accidents
or by any cause whatsoever reasonably beyond Landlord's control or by failure of
independent contractors to perform or by laws, orders, rules or regulations or
any federal, state, county or municipal authority, or failure of suitable fuel
supply, or inability by exercise of reasonable diligence to obtain suitable fuel
or by reason of government all preemption in connection with National Emergency
or by reason of the conditions of supply and demand which have been or are
affected by war or other emergency. The exercise of such right or such failure
by Landlord shall not constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any compensation or to any abatement or diminution
of 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, provided however that Landlord shall use best efforts to minimize any
interference with Tenant's business.
30. PARTNERSHIP TENANT. If Tenant is partnership (or comprised of two (2) or
-------------------
more persons, individually and as co-partners of partnership) or if Tenant's
interest in this Lease shall be assigned to partnership (or to two (2) or more
persons, individually and as co-partners of partnership) pursuant to Article 12
(any such partnership and such persons are referred to in this Article 30 as a
"Partnership Tenant"), the following provisions of this Article 30 shall apply
to such Partnership Tenant: (i) the liability of each of the parties comprising
a Partnership Tenant shall be joint and several, and (ii) each of the parties
comprising a Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any written instrument which may hereafter be executed, changing,
modifying or discharging this Lease, in whole or in part, or surrendering all or
any part of the Premises to Landlord, and by any notices, demands, requests or
other communications which may hereafter be given by a Partnership Tenant or by
any of the parties comprising a Partnership Tenant, and (iii) any bills,
statements, notices, demands, requests, or other communications given or
rendered to a Partnership Tenant and all such parties, and (iv) if a Partnership
Tenant shall admit new partners, all of such new partners shall, by their
admission to a Partnership Tenant, be deemed to have assumed performance of all
of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed, and (v) a Partnership Tenant shall give prompt notice to
Landlord of the admission of any such new partners, and upon demand of Landlord,
shall cause each such new partner to execute and
32
deliver to Landlord an agreement in form satisfactory to Landlord, wherein each
such new partner shall assume performance of all the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of nay
such new partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subdivision (iv) of this Article 30).
31. VAULT SPACE. Any vaults, vault space or other space outside the boundaries
------------
of the Real Property, notwithstanding anything contained in this Lease or
indicated on any sketch, blueprint or plan are not included in the Premises.
Landlord makes no representation as to the location of the boundaries of the
Real Property. All vaults and vault space and all other space outside the
boundaries of the Real Property which Tenant may be permitted to use or occupy
is to be used or occupied under revocable license, and if any such license shall
be revoked, or if the amount of such space shall be diminished or required by
any Federal, State, or Municipal authority or by any public utility company,
such revocation, diminution or requisition shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution or rent, or relieved Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord. Any fee, tax or charge imposed by
any governmental authority for any such vaults, vault space or other space shall
be paid by Tenant.
32. SECURITY DEPOSIT. Tenant shall deposit with Landlord on the signing of this
----------------
Lease the Security Deposit (as defined in Article 1 of this Lease) as security
for the faithful performance and observance by Tenant of the terms, conditions
and provisions of this Lease, including without limitation the surrender of
possession of the Premises to Landlord as herein provided. Landlord agrees to
deposit the Security Deposit in an interest bearing bank account located in New
York State. To the extent not prohibited by law, Landlord shall be entitled to
receive and retain as an administrative expense that portion of the interest
received on such account equal to one percent (1%) per annum of the Security
Deposit, which fee Landlord shall have the right to withdraw from time to time,
at Landlord's discretion. The balance of the interest shall be paid by Landlord
to Tenant from time to time, promptly after receipt of written request from
Tenant not more than once per Calendar year. Landlord shall not be required to
credit Tenant with any interest for any period during which Landlord does not
receive interest on the Security Deposit, nor shall Landlord have any liability
or obligation for loss of all or any portion of the Security Deposit by reason
of the insolvency or failure of the bank in which the Security Deposit is
deposited. It is agreed that in the event Tenant defaults in respect of any of
the terms, provisions and conditions of this Lease, including, but not limited
to, the payment of Rent and additional rent, Landlord may apply or retain the
whole or any part of the Security Deposit so deposited to the extent required
for the payment of any Rent and additional rent or any other sum as to which
Tenant is in default or for any sum which Landlord may expend or may be required
to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this Lease, including but not limited to, any
damages
33
or deficiency in the reletting of the Premises, whether such damages or
deficiency accrue or accrues before or after summary proceedings or other
reentry by Landlord. If Landlord applies or retains any part of the Security
Deposit so deposited, Tenant, within three (3) days' after notice form Landlord,
shall deposit with Landlord the amount so applied or retained so that Landlord
shall have the full Security Deposit on hand at all times during their Term. The
failure by Tenant to deposit such additional amount within the foregoing time
period shall be deemed material default pursuant to Article 17 of this Lease. If
Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, the security shall be returned to Tenant
after the Expiration Date and after delivery of the entire possession of the
Premises to Landlord. In the event of sale of the Real Property or the Building
or leasing of the Building. Landlord shall have the right to transfer the
Security Deposit to the vendee or lessee and Landlord shall thereupon be
released by Tenant from all liability for the return of the Security Deposit;
and Tenant agrees to look solely to the new Landlord for the return of the
Security Deposit; and it is agreed that the provisions hereof shall apply to
every transfer or assignment made of the Security Deposit to new Landlord.
Tenant further covenants that it will not assign or encumber or attempt to
assign or encumber or attempt to assign or encumber the Security Deposit and
that neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
33. CAPTIONS. The Captions are inserted only as matter of convenience and for
---------
reference and in no way define, limit or describe the scope of this Lease nor
the intent of any provision thereof.
34. ADDITIONAL DEFINITIONS.
-----------------------
A. The term "office" or "offices", wherever used in this Lease, shall not
be construed to mean premises used as store or stores, for the sale or display,
at any time, of goods, wares or merchandise, of any kind, or as restaurant,
shop, booth, bootblack or other stand, xxxxxx shop, or for other similar
purposes or for manufacturing.
B. The words "reenter" and "reentry" as used in this Lease are not
restricted to their technical legal meaning
C. The term "rent" as used in this Lease shall mean and be deemed to
include Rent, any increases in Rent, all additional rent and any other sums
payable hereunder.
D. The term "business days" as used in this Lease shall exclude Saturdays,
Sundays and all days observed by the State or Federal Government as legal
holidays and union holidays for those unions that materially affect the delivery
of services in the Building.
35. PARTIES BOUND. The covenants, conditions and agreements contained in this
--------------
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees,
34
executors, administrators, successors, and , except as otherwise provided in
this Lease, their assigns.
36. BROKER. Tenant represents and warrants that Tenant has dealt directly with
-------
(and only with), the Broker (as defined in Article 1 herein as broker in
connection with this Lease, and that insofar as Tenant knows no other broker
negotiated this Lease or is entitled to any commission in connection therewith,
and the execution and delivery of this Lease by Landlord shall be conclusive
evidence that Landlord has relied upon the foregoing representation and
warranty. Landlord represents that it has dealt directly with (and only with )
the Broker as broker in connection with this Lease. Landlord hereby agrees to
pay Broker and to indemnify Tenant as to Broker. /s/ R.T.
37. INDEMNITY. Neither Landlord nor Tenant shall not do or permit any act or
----------
thing to be done upon the Premises which may subject Landlord or Tenant to any
liability or responsibility for injury, damages to persons or property or to any
liability by reason of any violation of law or of any legal requirement of
public authority, but shall exercise such control over the Premises as to fully
protect Landlord or Tenant against any such liability. Tenant agrees to
indemnify and save harmless Landlord from and against (a) all claims of whatever
nature against Landlord arising from any act, omission or negligence of Tenant,
its contractors, licensees, agents, servants, employees, invitees or visitors,
including any claims arising from any act, omission or negligence of Landlord
and Tenant, (b) all claims against Landlord arising from any accident, injury or
damage whatsoever caused to any person or to the property of any person and
occurring during the Term in or about the Premises, (c) all claims against
Landlord arising from any accident, injury or damage occurring outside of the
Premises but anywhere within or about the Real Property, where such accident,
injury or damage results or is claimed to have resulted from an act or omission
of Tenant or Tenant's agents, employees, invitees or visitors, including any
claims arising from any act, omission or negligence of Landlord or Landlord and
Tenant, and (d) any breach, violation or nonperformance of any covenant,
condition or agreement in this Lease set forth and contained on the part of
Tenant to be fulfilled, kept, observed and performed. This indemnity and hold
harmless agreement shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses of any kind or nature
incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof. Landlord shall give Tenant immediate notice of any and
all occurrences which may be subject to this Paragraph 37.
38. ADJACENT EXCAVATION SHORING. If an excavation shall be made upon land
---------------------------
adjacent to the Premises, or shall be authorized to be made, Tenant shall afford
to the person causing or authorized to cause such excavation, license to enter
upon the Premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the Building from injury or damage and to
support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of Rent.
35
39. MISCELLANEOUS.
-------------
A. No Offer. This Lease is offered for signature by Tenant and it is
--------
understood that this Lease shall not be binding upon Landlord unless and until
Landlord shall have executed and delivered fully executed copy of this Lease to
Tenant.
B. Signatories. If more than one person or entity executes this Lease as
-----------
Tenant, each of then understands and hereby agrees that the obligations of each
of them under this Lease are and shall be joint and several, that the term
"Tenant" as used in this Lease shall mean and include each of them jointly and
severally and that the act of or notice from, or notice or refund to, or the
signature of, any one or more of them, with respect to the tenancy and/or this
Lease, including, but not limited to, any renewal, extension, expiration,
termination or modification of this Lease, shall be binding upon each and all of
the persons or entities executing this Lease as Tenant with the same force and
effect as if each and all of them had so acted or so given or received such
notice or refund or so signed.
C. Certificates. From time to time, within seven (7) days next following
------------
Landlord's request, Tenant shall deliver to Landlord written statement executed
and acknowledged by Tenant, in form satisfactory to Landlord, (i) stating that
this Lease is then in full force and effect and has not been modified (or if
modified, setting forth all modifications), (ii) setting forth the date to which
the Rent, additional rent and other charges hereunder have been paid, together
with the amount of fixed base monthly Rent then payable, (iii) stating whether
or not, to the best knowledge of Tenant, Landlord is in default under this
Lease, and, if Landlord is in default, setting forth the specific nature of all
such defaults, (iv) stating the amount of the security deposit under this Lease,
(v) stating whether there are any subleases affecting the Premises, (vi) stating
the address of Tenant to which all notices and communication under the Lease
shall be sent, the Commencement Date and the Expiration Date, and (vii) as to
any other matters requested by Landlord. Tenant acknowledges that any statement
delivered pursuant to this subsection C may be relied upon by any purchaser or
owner of the Real Property or the Building, or Landlord's interest in the Real
Property or the Building or any Superior Lease, or by any mortgagee of Mortgage,
or by any assignee of any mortgagee of Mortgage, or by any lessor under and
Superior Lease.
D. Directory Listings. Tenant shall receive three listings of Tenant's name
------------------
on the directory in the lobby of the Building.
E. Authority. If Tenant and/or Landlord is corporation or partnership, each
---------
individual executing this Lease on behalf of Tenant and/or Landlord hereby
represents and warrants that Tenant and/or Landlord is duly formed and validly
existing entity qualified to do business in the State of New York and that
Tenant and/or Landlord has full right and authority too executed and deliver
this Lease and that each person signing on behalf of Tenant and/or Landlord is
authorized to do so.
36
F. Tenant shall not be permitted use of any roof areas of the premises and
the same are not included in this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
DINO & SONS REALTY CO., Landlord
By: /s/ ILLEGIBLE
------------------------------------
GLOBAL SHOPPING NETWORK, INC., Tenant
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Title: President
---------------------------------
00-0000000
---------------------------------------
Tenant's Tax I.D. Number
37
226 W. 00xx Xx.
0xx Xxxxx
[XXXXXXX XX XXXXX PLAN]
000 X. 00xx Xx.
0xx Xxxxx
0/00" = 1'
[DRAWING OF FLOOR PLAN]
000 X. 00xx Xx.
0xx Xxxxx
0/00" = 1'
[DRAWING OF FLOOR PLAN]
SCHEDULE A
RULES AND REGULATIONS
I. The rights of each tenant in the Building to the entrances, corridors
and elevators of the Building are limited to ingress to and egress from such
tenant's premises and no tenant shall use, or permit the use of the entrances,
corridors, or elevators for any other purpose. No tenant shall invite to its
premises, or permit the visit of persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, elevators and other facilities of the Building by other
tenants. No tenant shall encumber or obstruct, or permit the encumbrances or
obstruction of any of the sidewalks, plazas, entrances, corridors, elevators,
fire exits or stairways of the Building. Landlord reserves the right to control
and operate the public portions of the Building, the public facilities, as well
as facilities furnished for the common use of the tenants, in such manner as
Landlord deems best for the benefit of the tenants generally.
II. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchman in charge, or not having
a pass issued by Landlord or not properly identified, and may require all
persons admitted to or leaving the Building outside of ordinary business hours
to register. tenants' employees, agents and visitors shall be permitted to enter
and leave the Building whenever appropriate arrangements have been previously
made between Landlord and the tenant with respect thereto. Each tenant shall be
responsible for all persons for whom it requests such permission and shall be
liable to Landlord for all acts of such persons. Any person whose presence in
the Building at any time shall, in the judgment of Landlord, be prejudicial to
the safety, character, reputation or interests of the Building or its tenants
may be denied access to the Building or may be eJected therefrom. In case of
invasion, riot, public excitement or other commotion Landlord may prevent all
access to the Building during the continuance of the same, by closing the doors
or otherwise, for the safety of the tenants and protection of property in the
Building. Landlord may require any person, leaving the Building with any package
or other obJect to exhibit a pass from the tenant from whose premises the
package or object is being removed, but the establishment and enforcement of
such requirement shall not impose any responsibility on Landlord for the
protection of any tenant against the removal of property from the premises of
tenant. Landlord shall, in no way, be liable to any tenant for damages or loss
arising from the admission, exclusion or rejection of any person to or from a
tenant's premises or the Building under the provisions of this rule.
III. No tenant shall obtain or accept for use in its premises ice, drinking
water, towels , barbering, boot blacking, floor polishing , lighting
maintenance, cleaning or other similar services from any persons not authorized
by Landlord in writing to furnish such services. Such services shall be
furnished only at such hours, in such places within the tenant's premises and
under such regulation as may be fixed by Landlord.
IV. No window or other air-conditioning units shall be installed by any
tenant, and only such window coverings as are supplied or permitted by
Landlord shall be used in a tenant's premises.
V. There shall not be used in any space, nor in the public halls of the
Building, either by any tenant or by jobbers, or other in the deliver or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
VI. All entrance door's in each tenant's premises shall be left locked when
the tenant's premises are not in use. Entrance doors shall not be left open at
any time. All windows in each tenant's premises shall be kept closed at all
times and all blinds therein above the ground floor shall be lowered when and as
reasonably required because of the position of the sun, during the operation of
the Building air-conditioning system to cool or ventilate the tenant's premises.
VII. No noise, including the playing of any musical instruments, radio or
television, which, in the judgment of Landlord, might disturb other tenants in
the Building, shall be made or permitted by any tenant. No dangerous,
inflammable, combustible or explosive object, material or fluid shall be brought
into the Building by any tenant or with the permission of any tenant.
VIII. All damages resulting from any misuse of the plumbing fixtures shall
be borne by the tenant who, or whose servants, employees, agents, visitors, or
licensees, shall have caused the same.
IX. No signs, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside of the
premises or the Building without the prior written consent of Landlord. Signs
and lettering on doors shall be inscribed, painted, or affixed for each tenant
by Landlord at the expense of such tenant, and shall be of a size and color
acceptable to Landlord. Landlord may remove same without any liability and may
charge the expense incurred by such removal to the tenant or tenants violating
this rule. No tenant shall use any advertising which impairs the reputation of
the Building.
X. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows in any tenant's premises and no lock on any door therein shall
be changed or altered in any respect. Duplicate keys for a tenant's premises and
toilet rooms shall be procured only from Landlord, which may make a reasonable
charge therefor. Upon the termination of a tenant's lease, all keys of the
tenant's premises and toilet rooms shall be delivered to Landlord.
XI. Each tenant, shall, at its expense, provide artificial light in the
premises for Landlord's agents, contractors and employees while performing
janitorial or other cleaning services and making repairs or alterations in said
premises.
XII. No tenant shall install or permit to be installed any vending
machines.
XIII. No animals or birds, bicycles, mopeds or vehicles of any kind shall
be kept in or about the Building or permitted therein.
XIV. No furniture, office equipment, packages or merchandise will be
received in the Building or carried up or down, in the elevator, except between
such hours as shall be designated by Landlord. Landlord shall prescribe the
charge for freight elevator use and the method and manner in which any
merchandise, heavy furniture, equipment or safes shall be brought in or taken
out of the Building, and also the hours at which such moving shall be done.
XV. All electrical fixtures hung in offices or spaces along the perimeter
of any tenant's premises must be fluorescent, of a quality, type, design and
bulb color approved by Landlord unless the prior consent of Landlord has been
obtained for other xxxxxxx.
XVI. The exterior windows and doors that reflect or admit light and air
into any premises or the halls, passageways or other public places in the
Building, shall not be covered or obstructed by any tenant, nor shall any
articles be placed on the windowsills.
XVII. Canvassing, soliciting and peddling in the Building is prohibited and
each tenant shall cooperate to prevent same.
XVIII. No tenant shall do any cooking, conduct any restaurant, luncheonette
or cafeteria for the sale or service of food or beverages to its employees or to
others, except as expressly approved in writing by Landlord. In addition, no
tenant shall cause or permit any odors of cooking or other processes or any
unusual or objectionable odors to emanate from the premises. The foregoing shall
not preclude tenant from having food or beverages delivered to the premises,
provided that no cooking or food preparation shall be carried out at the
premises.
GSN
[LOGO]
October 30, 1996
Dino and Sons Realty Company
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Corporate Offices
0000 Xxxxxxxx (00xx Xxxxx)
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Studio
000 X. 00xx Xx.
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Rachamim Anatian
Chief Executive Officer
Xxxxxxx Xxxxxxxx
President
Moti Gal
Creative Director
Xxxxxxx Xxxxxxxxx
Chief Financial Officer
Xxxxx Xxxxx
National Spokesperson
Xxxxx Xxxxx
Director of Programming
Xxxxxx X Xxxxxxx
Director of Legal Services
Xxxxxx Xxxxx
Vice President of Merchandising
Xxxxxxxx Xxxxx
Merchandise Manager
Xxxx Xxxxx
Director of Public Relations
Re: Lease between Dino and Sons and
Global Shopoing Network
Gentlemen:
It is my understanding that you have agreed, (subject to your final approval
upon receipt of the specifications concerning items one through three below,
which approval shall not be unreasonably withheld) to the following matters
concerning the lease for the second, third and fourth Boors of 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx Xxx Xxxx 00000 between the above mentioned parties. Please be
so land as to sign the line in the lower left hand corner of this letter to
indicate your written assent to the matters contained in this letter.
1 . That Global Shopping Network ("GSN") shall be permitted to erect or paint a
sign on the eastern face of the premises provided that the sign is removed by
GSN at the end of the lease term.
2. That GSN will be permitted to run pipes along the side of the premises
provided the pipes are removed at the end of the lease term.
3. That GSN will be permitted to erect a satellite receiving dish on top of the
building provided that it meets the load tolerance for the roof and good
operating, maintenance and engineering standards under the circumstances.
Additionally, GSN shall remove the dish at the end of the lease term. It IS also
understood that the tenant will indemnify the Landlord against any claims
pertaining to the use, operation and maintenance of the dish.
Thank you very much for your attention and cooperation in this matter.
Very truly yours,
/s/ Xxxxxxx Xxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxx
President
Agreed and accepted:
/s/ Rosso Tinanett
---------------------------
lease.
