STANDARD FORM OF OFFICE LEASE The Real Estate Board of New York, Inc. Agreement of Lease, made as of this 17th day of September in the year 2009 , between BRAUN MANAGEMENT, INC. 160 Broadway, First Floor, New York, NY 10038 as agent for DAROR...
STANDARD
FORM OF OFFICE LEASE
The Real Estate Board of New
York, Inc.
Agreement
of Lease, made as of this 17th
day
of September in the year
2009 ,
between XXXXX MANAGEMENT, INC. 000 Xxxxxxxx, Xxxxx Xxxxx, Xxx Xxxx, XX 00000 as
agent for DAROR ASSOCIA1E party of the first part, hereinafter referred to as
OWNER, and ACCOUNTABILITIES, INC., a Delaware corporation, with an office at 000
Xxxxxxxx, Xxx Xxxx, XX 00000 party of the second part, hereinafter referred to
as TENANT,
Witnesseth, Owner
hereby leases to Tenant and Tenant hereby hires from Owner part of the eleventh
(11th) floor known as Suite 1100 as shown in Exhibit “A”, attached hereto and
made a part hereof in the building known as 000 Xxxxxxxx xx xxx Xxxxxxx xx
Xxxxxxxxx ,Xxxx
of New York, for the term of (or until such term shall sooner cease and expire
as hereinafter provided) to commence on
the day
of in
the
year ,
and to end on
the day
of in
the
year both
dates inclusive, at the annual rental rate of
[See
Paragraph 37.02 and Article 37 of the Rider for annual rental rates and rent and
term commencement dates] which Tenant agrees to pay in lawful money of the
United States, which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, in equal monthly installments in
advance on the first day of each month during said term, at the office of Owner
or such other place as Owner may designate, without any setoff or deduction
whatsoever, except that Tenant shall pay the first monthly installment(s) on the
execution hereof (unless this lease be a renewal).
In the
event that, at the commencement of the term of this lease, or thereafter, Tenant
shall be in default in the payment of rent to Owner pursuant to the terms of
another lease with Owner or with Owner's predecessor in interest, Owner may at
Owner's option and without notice to Tenant add the amount of such arrears to
any monthly installment of rent payable hereunder and the same shall be payable
to Owner as additional rent.
The
parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent: 1.
Tenant shall pay the rent as above and as hereinafter provided.
Occupancy:
2. Tenant shall use and occupy the demised premises for offices for Tenant’s
temporary placement service and for no other purpose.
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Tenant
Alterations: 3. Tenant shall make no changes in or to the demised premises
of any nature without Owner's prior written consent Subject to the prior
written consent of Owner, and to the provisions of this article, Tenant,
at Tenant's expense, may make alterations, installations, additions or
improvements which are non-structural and which do not affect utility
services or plumbing and electrical lines, in or to the interior of the
demised premises, using contractors or mechanics first approved in each
instance by Owner. Tenant shall, at its expense, before making any
alterations, additions, installations or improvements, obtain
all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final
approval thereof, and shall deliver promptly duplicates of all such
permits, approvals and certificates to Owner. Tenant agrees to carry, and
will cause Tenant's contractors and sub-contractors to carry, such
worker's compensation, general liability, personal and property damage
insurance as Owner may require. If any mechanic's lien is filed against
the demised premises, or the building of which the same forms a part, for
work claimed to have been done for, or materials furnished to, Tenant,
whether or not done pursuant to this article, the same shall be discharged
by Tenant within thirty (30) days thereafter, at Tenant's expense, by
payment or filing a bond as permitted by law. All fixtures and all
paneling, partitions, railings and like installations, installed in the
demised premises at any time, either by Tenant or by Owner on Tenant's
behalf, shall, upon installation, become the property of Owner and shall
remain upon and be surrendered with the demised premises unless Owner, by
notice to Tenant no later than twenty (20) days prior to the date fixed as
the termination of this lease, elects to relinquish Owner's right thereto
and to have them removed by Tenant, in which event the same shall be
removed from the demised premises by Tenant prior to the expiration of the
lease, at Tenant's expense. Nothing in this article shall be construed to
give Owner title to, or to prevent Tenant's removal of, trade fixtures,
moveable office furniture and equipment, but upon removal of same from the
demised premises, or upon removal of other installations as may be
required by Owner, Tenant shall immediately, and at its expense, repair
and restore the demised premises to the condition existing prior to any
such installations, and repair any damage to the demised premises or the
building due to such removal. All property permitted or required to be
removed by Tenant at the end of the term remaining in the demised premises
after Tenant's removal shall be deemed abandoned and may, at the election
of Owner, either be retained as Owner's property or removed from the
demised premises by Owner, at Tenant's expense.
Maintenance
and Repairs: 4. Tenant shall, throughout the term of this lease, take good
care of the demised premises and the fixtures and appurtenances therein.
Tenant shall be responsible for all damage or injury to the demised
premises or any other part of the building and the systems and equipment
thereof, whether requiring structural or nonstructural repairs caused by,
or resulting from, carelessness, omission, neglect or improper conduct of
Tenant, Tenant's subtenants, agents, employees, invitees or licensees, or
which arise out of any work, labor, service or equipment done for, or
supplied to, Tenant or any subtenant, or arising out of the installation,
use or operation of the property or equipment of Tenant or any subtenant
Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture
and
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equipment.
Tenant shall promptly make, at Tenant's expense, all repairs in and to the
demised premises for which Tenant is responsible, using only the
contractor for the trade or trades in question, selected from a list of at
least two contractors per trade submitted by Owner. Any other repairs in
or to the building or the facilities and systems thereof, for which Tenant
is responsible, shall be performed by Owner at the Tenant's expense. Owner
shall maintain in good working order and repair the exterior and the
structural portions of the building, including the structural portions of
the demised premises, and the public portions of the building interior and
the building plumbing, electrical, heating and ventilating systems (to the
extent such systems presently exist) serving the demised premises. Tenant
agrees to give prompt notice of any defective condition in the demised
premises for which Owner may be responsible hereunder. There shall be no
allowance to Tenant for diminution of rental value and no liability on the
part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner or others making repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises,
or in and to the fixtures, appurtenances or equipment thereof. It is
specifically agreed that Tenant shall not be entitled to any setoff or
reduction of rent by reason of any failure of Owner to comply with the
covenants of this or any other article of this lease. Tenant agrees that
Tenant's sole remedy at law in such instance will be by way of an action
for damages for breach of contract. The provisions of this Article 4 shall
not apply in the case of fire or other casualty, which are dealt with in
Article 9 hereof.
Window
Cleaning: 5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned from the outside in
violation of Section 202 of the Labor Law or any other
applicable law, or of the Rules of the Board of standards and Appeals, or
of any other Board or body having or asserting jurisdiction.
Requirements
of Law, Fire Insurance, Floor Loads: 6. Prior to the commencement of the
lease term, if Tenant is then in possession, and at all times thereafter,
Tenant, at Tenant's sole cost and expense, shall promptly comply with all
present and future laws, orders and regulations of all state, federal,
municipal and local governments, departments, commissions and boards and
any direction of any public officer pursuant to law, and all orders, rules
and regulations of the New York Board of Fire Underwriters, Insurance
Services Office, or any similar body which shall impose any violation,
order or duty upon Owner or Tenant with respect to the demised premises,
whether or not arising out of Tenant's use or manner of use thereof,
(including Tenant's permitted use) or, with respect to the building if
arising out of Tenant's use or manner of use of the demised premises or
the building (including the use permitted under the lease). Nothing herein
shall require Tenant to make structural repairs or alterations unless
Tenant has, by its manner of use of the demised premises or method of
operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto. Tenant may, after
securing Owner to Owner's satisfaction against all damages, interest,
penalties and expenses, including, but not limited to, reasonable
attorneys' fees, by cash deposit or by surety bond in an amount and in a
company satisfactory to Owner, contest and appeal any such laws,
ordinances, orders, rules, regulations
or
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requirements
provided same is done with all reasonable promptness and provided such
appeal shall not subject Owner to prosecution for a criminal offense, or
constitute a default under any lease or mortgage under which Owner may be
obligated, or cause the demised premises or any part thereof to be
condemned or vacated. Tenant shall not do or permit any act or thing to be
done in or to the demised premises which is contrary to law, or which will
invalidate or be in conflict with public liability, fire or other policies
of insurance at any time carried by or for the benefit of Owner with
respect to the demised premises or the building of which the demised
premises form a part, or which shall or might subject Owner to any
liability or responsibility to any person, or for property damage. Tenant
shall not keep anything in the demised premises, except as now or
hereafter permitted by the Fire Department, Board of Fire Underwriters,
Fire Insurance Rating Organization or other authority having jurisdiction,
and then only in such manner and such quantity so as not to increase the
rate for fire insurance applicable to the building, nor use the demised
premises in a manner which will increase the insurance rate for the
building or any property located therein over that in effect prior to the
commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this article, and if by
reason of such failure the fire insurance rate shall, at the beginning of
this lease, or at any time thereafter, be higher than it otherwise would
be, then, Tenant shall reimburse Owner, as additional rent hereunder, for
that portion of all fire insurance premiums thereafter paid by Owner which
shall have been charged because of such failure by Tenant. In any action
or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up" of rate for the building or the demised premises issued by the
New York Fire Insurance Exchange, or other body making fire insurance
rates applicable to said premises shall be conclusive evidence of the
facts therein stated and of the several items and charges in the fire
insurance rates then applicable to said premises. Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per
square foot area which it was designed to carry and which is allowed by
law. Owner reserves the right to prescribe the weight and position of all
safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Tenant, at Tenant's
expense, in settings sufficient, in Owner's judgment, to absorb and
prevent vibration, noise and annoyance
Subordination:
7. This lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such leases
or the real property of which the demised premises are a part, and to all
renewals, modifications, consolidations, replacements and extensions of
any such underlying leases and mortgages. This clause shall be
self-operative and no further instrument of subordination shall be
required by any ground or underlying lessor or by any mortgagee, affecting
any lease or the real property of which the demised premises are a
part. In confirmation of such subordination, Tenant shall from
time to time execute promptly any certificate that Owner may
request
Property
Loss, Damage Reimbursement Indemnity. 8. Owner or its agents shall not be
liable for any damage to property of Tenant or of others entrusted to
employees of the building, nor for loss of or damage to any property of
Tenant by theft or otherwise, nor for any injury or damage to persons or
property resulting from any cause of whatsoever nature, unless caused by,
or due to, the negligence of Owner, its agents, servants or employees.
Owner or its agents shall not be liable for any damage caused by other
tenants or persons in, upon or about said building, or caused by
operations in construction of any private, public or quasi public work. If
at any time any windows of the demised premises are temporarily closed,
darkened or bricked up (or permanently closed, darkened or bricked up, if
required by law) for any reason whatsoever including, but not limited to,
Owner's own acts, Owner shall not be liable for any damage Tenant may
sustain thereby, and Tenant shall not be entitled to any compensation
therefore, nor abatement or diminution of rent, nor shall the same release
Tenant from its obligations hereunder, nor constitute an eviction. Tenant
shall indemnify and save harmless Owner against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses for which
Owner shall not be reimbursed by insurance, including reasonable
attorney’s fees, paid, suffered or incurred as a result of any breach by
Tenant, Tenant's agents, contractors, employees, invitees, or licensees,
of any covenant or condition of this lease, or the carelessness,
negligence or improper conduct of the Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under
this lease extends to the acts and omissions of any sub-tenant, and any
agent, contractor; employee, invitee or licensee of any sub-tenant In case
any action or proceeding is brought against Owner by reason of any such
claim, Tenant, upon written notice from Owner, will, at Tenant's expense,
resist or defend such action or proceeding by counsel approved by Owner in
writing, such approval not to be unreasonably withheld.
Destruction,
Fire and Other Casualty: 9. (a) If the demised premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give
immediate notice thereof to Owner, and this lease shall continue in full
force and effect except as hereinafter set forth. (b) If the demised
premises are partially damaged or rendered partially unusable by fire or
other casualty, the damages thereto shall be repaired by, and at the
expense of, Owner, and the rent and other items of additional rent, until
such repair shall be substantially completed, shall be apportioned from
the day following the casualty, according to the part of the demised
premises which is usable. (c) If the demised premises are totally damaged
or rendered wholly unusable by fire or other casualty, then the rent and
other items of additional rent, as hereinafter expressly provided, shall
be proportionately paid up to the time of the casualty, and thenceforth
shall cease until the date when the demised premises shall have been
repaired and restored by Owner (or if sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above),
subject to Owner's right to elect not to restore the same as hereinafter
provided. (d) If the demised premises are rendered wholly unusable or
(whether or not the demised premises are damaged in whole or in part) if
the building shall be so damaged that Owner shall decide to demolish it or
to rebuild it, then, in any of such events, Owner may elect to terminate
this lease by written notice to Tenant, given within ninety (90) days
after such fire or casualty, or thirty (30) days after adjustment of the
insurance claim for such fire or casualty, whichever is sooner, specifying
a date for the expiration of the lease, which date shall not be more than
sixty (60) days after the giving of such notice, and upon the date
specified in such notice the term of this lease
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shall
expire as fully and completely as if such date were the date set forth
above for the termination of this lease, and Tenant shall forthwith quit,
surrender and vacate the demised premises without prejudice however, to
Landlord's rights and remedies against Tenant under the lease provisions
in effect prior to such termination, and any rent owing shall be paid up
to such date, and any payments of rent made by Tenant which were on
account of any period subsequent to such date shall be returned to Tenant.
Unless Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions of (b)
and (c) hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the demised premises as promptly as
reasonably possible, all of Tenant's salvageable inventory and movable
equipment, furniture, and other property. Tenant's liability for rent
shall resume five (5) days after written notice from Owner that the
demised premises are substantially ready for Tenant's occupancy (e)
Nothing contained hereinabove shall relieve Tenant from liability that may
exist as a result of damage from fire or other casualty. Notwithstanding
the foregoing, including Owner's obligation to restore under subparagraph
(b) above, each party shall look first to any insurance in its favor
before making any claim against the other party for recovery for loss or
damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible, and to the extent permitted by law,
Owner and Tenant each hereby releases and waives all right of recovery
with respect to subparagraphs (b), (d), and (e) above, against the other,
or anyone claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to
include any loss or damage to the demised premises and/or to any personal
property, equipment, trade fixtures, goods and merchandise located
therein. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a
release or waiver shall not invalidate the insurance. If, and to the
extent, that such waiver can be obtained only by the payment of additional
premiums, then the party benefiting from the waiver shall pay such premium
within ten days after written demand or shall be deemed to have agreed
that the party obtaining insurance coverage shall be free of any further
obligation under the provisions hereof with respect to waiver of
subrogation. Tenant acknowledges that Owner will not carry insurance on
Tenant's furniture and/or furnishings or any fixtures or equipment,
improvements, or appurtenances removable by Tenant, and agrees that Owner
will not be obligated to repair any damage thereto or replace the same.
(f) Tenant hereby waives the provisions of section 227 of the Real
Property Law and agrees that the provisions of this article shall govern
and control in lieu thereof.
Eminent
Domain: 10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use
or purpose, then, and in that event, the term of this lease shall cease
and terminate from the date of title vesting in such proceeding, and
Tenant shall have no claim for the value of any unexpired term of said
lease, and assigns to Owner, Tenant's entire interest in any such award.
Tenant shall have the right to make an independent claim to the condemning
authority for the value of Tenant's moving expenses and personal property,
trade fixtures and equipment, provided Tenant is entitled pursuant to the
terms of the lease to remove such property, trade fixtures and equipment
at the end of the term, and provided further such claim does not reduce
Owner's award.
Assignment,
Mortgage, Etc.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any
part thereof to be used by others, without the prior written consent of
Owner in each instance. Transfer of the majority of the stock of a
corporate Tenant or the majority partnership interest of a partnership
Tenant shall be deemed an assignment. If this lease be assigned, or if the
demised premises or any part thereof be underlet or occupied by anybody
other than Tenant, Owner may, after default by Tenant, collect rent from
the assignee, under-tenant or occupant, and apply the net amount collected
to the rent herein reserved, but no such assignment, underletting,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, undertenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on
the part of Tenant herein contained. The consent by Owner to an assignment
or underletting shall not in any way be construed to relieve Tenant from
obtaining the express consent in writing of Owner to any further
assignment or underletting.
Electric
Current: 12. Rates and conditions in respect to submetering or
rent inclusion, as the case may be, to be added in RIDER attached hereto.
Tenant covenants and agrees that at all times its use of electric current
shall not exceed the capacity of existing feeders to the building or the
risers or wiring installation, and Tenant may not use any electrical
equipment which, in Owner's opinion, reasonably exercised, will overload
such installations or interfere with the use thereof by other tenants of
the building. The change at any time of the character of electric service
shall in no way make Owner liable or responsible to Tenant, for any loss,
damages or expenses which Tenant may sustain.
Access
to Premises: 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any
time, and, at other reasonable times, to examine the same and to make such
repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to the demised premises or to any other portion of
the building or which Owner may elect to perform. Tenant shall
permit Owner to use and maintain and replace pipes, ducts, and conduits in
and through the demised premises and to erect new pipes, ducts, and
conduits therein, provided they are concealed within the walls, floor; or
ceiling. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises
without the same constituting an eviction, nor shall the Tenant be
entitled to any abatement of rent while such work is in progress, nor to
any damages by reason of loss or interruption of business or otherwise.
Throughout the term hereof, Owner shall have the right to enter the
demised premises at reasonable hours for the purpose of showing the same
to prospective purchasers or
mortgagees
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of
the building, and during the last six months of the term, for the purpose
of showing the same to prospective tenants. If Tenant is not present to
open and permit an entry into the demised premises, Owner or Owner's
agents may enter the same whenever such entry may be necessary or
permissible by master key or forcibly, and provided reasonable care is
exercised to safeguard Tenant's property, such entry shall not render
Owner or its agents liable therefore, nor in any event shall the
obligations of Tenant hereunder be affected. If during the last month of
the term Tenant shall have removed all or substantially all of Tenant's
property therefrom, Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent,
or incurring liability to Tenant for any compensation, and such act shall
have no effect on this lease or Tenant's obligations
hereunder.
Vault,
Vault Space, Area: 14. No vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building, is
leased hereunder, anything contained in or indicated on any sketch, blue
print or plan, or anything contained elsewhere in this lease to the
contrary notwithstanding. Owner makes no representation as to the location
of the property line of the building. All vaults and vault space and all
such areas not within the property line of the building, which Tenant may
be permitted to use and/or occupy, is to be used and/or occupied under a
revocable license, and if any such license be revoked, or if the amount of
such space or area be diminished or required by any federal, state or
municipal authority or public utility, Owner shall not be subject to any
liability, nor shall Tenant be entitled to any compensation or diminution
or abatement of rent, nor shall such revocation, diminution or requisition
be deemed constructive or actual eviction. Any tax, fee, or charge of
municipal authorities for such vault or area shall be paid by
Tenant.
Occupancy: 15.
Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which
the demised premises are a part. Tenant has inspected the demised premises
and accepts them as is, subject to the riders annexed hereto with respect
to Owner's work, if any. In any event, Owner makes no representation as to
the condition of the demised premises, and Tenant agrees to accept the
same subject to violations, whether or not of record.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding,
this lease may be cancelled by Owner by the sending of a written notice to
Tenant within a reasonable time after the happening of anyone or more of
the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; or (2) the making
by Tenant of an assignment or any other arrangement for the benefit of
creditors under any state statute. Neither Tenant nor any person claiming
through or under Tenant, or by reason of any statute or order of court,
shall thereafter be entitled to possession of the premises demised but
shall forthwith quit and surrender the demised premises. If this lease
shall be assigned in accordance with its terms, the provisions of this
Article 16 shall be applicable only to the party then owning Tenant's
interest in this lease.
(b)
It is stipulated and agreed that in the event of the termination of this
lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover
from Tenant as and for liquidated damages, an amount equal to the
difference between the rent reserved hereunder for the unexpired portion
of the term demised and the fair and reasonable rental value of the
demised premises for the same period. In the computation of such damages
the difference between any installment of rent becoming due hereunder
after the date of termination, and the fair and reasonable rental value of
the demised premises for the period for which such installment was
payable, shall be discounted to the date of termination at the rate of
four percent (4%) per annum. If such demised premises or any part
therefore re-let by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the amount of rent reserved upon such
re-letting shall be deemed to be the fair and reasonable rental value for
the part or the whole of the demised premises so re-let during the term of
the re-letting. Nothing herein contained shall limit or prejudice the
right of the Owner to prove for and obtain as liquidated damages, by
reason of such termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such
amount be greater, equal to, or less than, the amount of the difference
referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease other than the covenants for the payment of rent or additional rent,
or if the demised premises become vacant or deserted; or if any execution
or attachment shall be issued against Tenant or any of Tenant's property,
whereupon the demised premises shall be taken or occupied by someone ether
than Tenant; or if this lease be rejected under §365 of Title 11 of the US
Code (Bankruptcy Code); or if Tenant shall fail to move into or take
possession of the demised premises within thirty (30) days after the
commencement of the term of this lease, then, in anyone or more of such
events, upon Owner serving a written fifteen (15) days notice upon Tenant
specifying the nature of said default, and upon the expiration of said
fifteen (15) days, if Tenant shall have failed to comply with or remedy
such default, or if the said default or omission complained of shall be of
a nature that the same cannot be completely cured or remedied within said
fifteen (15) day period, and if Tenant shall not have diligently commenced
curing such default within such fifteen (15) day period, and shall not
thereafter with reasonable diligence and in good faith, proceed to remedy
or cure such default, then Owner may serve a written five (5) days notice
of cancellation of this lease upon Tenant, and upon the expiration of said
five (5) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such five (5) day period were
the day herein definitely fixed for the end and expiration of this lease
and the term thereof, and Tenant shall then quit and surrender the demised
premises to Owner, but Tenant shall remain liable as hereinafter
provided.
(2)
If the notice provided for in (1) hereof shall have been given, and the
term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein, or any item of additional rent herein
mentioned, or any part of either, or in making any other
payment
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herein
required; then, and in any of such events, Owner may without notice,
re-enter the demised premises either by force or otherwise, and dispossess
Tenant by summary proceedings or otherwise, and the legal representative
of Tenant or other occupant of the demised premises, and remove their
effects and hold the demised premises as if this lease had not been made,
and Tenant hereby waives the service of notice of intention to re-enter or
to institute legal proceedings to that end. If Tenant shall make default
hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease, Owner may cancel and terminate such renewal or
extension agreement by written notice.
Remedies
of Owner and Waiver of Redemption: 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or
otherwise, (a). the rent shall become due thereupon and be paid up to the
tune of such re-entry, dispossess and/or expiration, (b) Owner may re-let
the demised premises or any part or parts thereof, either in the name of
Owner or otherwise, for a term or terms, which may at Owner's option be
less than or exceed the period which would otherwise have constituted the
balance of the term of this lease, and may grant concessions or free rent
or charge a higher rental than that in this lease, and/or (c) Tenant or
the legal representatives of Tenant shall also pay to Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's
covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount, if any, of the
rents collected on account of the lease or leases of the demised premises
for each month of the period which would otherwise have constituted the
balance of the term of this lease. The failure of Owner to relet the
demised premises, or any part or parts thereof, shall not release or
affect Tenant's liability for damages. In computing such liquidated
damages there shall be added to the said deficiency such expenses as Owner
may incur in connection with re-letting, such as legal expenses,
reasonable attorney's fees, brokerage, advertising and for keeping the
demised premises in good order or for preparing the same for re-letting.
Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease, and any suit brought to
collect the amount of the deficiency for any month shall not prejudice in
any way the rights of Owner to collect the deficiency for any subsequent
month by a similar proceeding. Owner, in putting the demised premises in
good order or preparing the same for re-rental may, at Owner's option,
make such alterations, repairs, replacements, and/or decorations in the
demised premises as Owner, in Owner's sole Judgment, considers advisable
and necessary for the purpose of re-letting the demised premises, and the
making of such alterations, repairs, replacements, and/or decorations
shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way
whatsoever for failure to re-let the demised premises, or in the event
that the demised premises are re-let, for failure to collect the rent
thereof under such reletting, and in no event shall Tenant be
entitled to receive any excess, if any, of such net rents collected over
the sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof,
Owner shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if re-entry, summary proceedings and
other remedies were not herein provided for. Mention in this lease of any
particular remedy, shall not preclude Owner from any other remedy, in law
or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed for any cause, or in the event of
Owner obtaining possession of the demised premises, by reason of the
violation by Tenant of any of the covenants and conditions of this lease,
or otherwise.
Fees
and Expenses: 19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed
under, or by virtue of, any of the terms or provisions in any article of
this lease, after notice, if required, and upon expiration of any
applicable grace period, if any, (except in an emergency), then, unless
otherwise provided elsewhere in this lease, Owner may immediately, or at
any time thereafter and without notice, perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing, or in connection
with any default by Tenant in the covenant to pay rent hereunder, makes
any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorneys' fees, in instituting,
prosecuting or defending any action or proceeding, and prevails in any
such action or proceeding, then Tenant will reimburse Owner for such sums
so paid, or obligations incurred, with interest and costs. The foregoing
expenses incurred by reason of Tenant's default shall be deemed to be
additional rent hereunder, and shall be paid by Tenant to Owner within ten
(10) days of rendition of any xxxx or statement to Tenant therefore. If
Tenant's lease term shall have expired at the time of making of such
expenditures or including of such obligations, such sums shall be
recoverable by Owner, as damages.
Building
Alterations and Management: 20. Owner shall have the right at any time
without the same constituting an eviction and without incurring liability
to Tenant therefor, to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs,
toilets or other public parts of the building, and to change the name,
number or designation by which the building may be known. There shall be
no allowance to Tenant for diminution of rental value and no liability on
the part of Owner by reason of inconvenience, annoyance or injury to
business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's
imposition of such controls of the manner of access to the building by
Tenant's social or business visitors as the Owner may deem necessary for
the security of the building and its occupants.
No
Representations Owner: 21. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the
rents, leases, expenses of operation or any other matter
or
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thing
affecting or related to the demised premises, except as herein expressly
set forth, and no rights, easements or licenses are acquired by Tenant by
implication or otherwise, except as expressly set forth in the provisions
of this lease. Tenant has inspected the building and the demised premises
and is thoroughly acquainted with their condition and agrees to take the
same "as-is", and acknowledges that the taking of possession of the
demised premises by Tenant sha11 be conclusive evidence that the said
premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as
to latent defects. All understandings and agreements heretofore
made between the parties hereto are merged in this contract, which alone
fully and completely expresses the agreement between Owner and Tenant, and
any executory agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment of it in whole or in part,
unless such executory agreement is in writing and signed by the party
against whom enforcement of the change, modification, discharge or
abandonment is sought.
End
of Term: 22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises,
"broom-clean", in good order and condition, ordinary wear and damages
which Tenant is not required to repair as provided elsewhere in this lease
excepted, and Tenant shall remove all its property. Tenant's obligation to
observe or perform this covenant shall survive the expiration or other
termination of this lease. If the last day of the term of this lease or
any renewal thereof, falls on Sunday, this lease shall expire at noon on
the preceding Saturday, unless it be a legal holiday, in which case it
shall expire at noon on the preceding business day.
Quiet
Enjoyment: 23. Owner covenants and agrees with Tenant that upon
Tenant paying the rent and additional rent and observing and performing
all the terms, covenants and conditions, on Tenant's part to be observed
and performed, Tenant may peaceably and quietly enjoy the premises hereby
demised, subject, nevertheless, to the terms and conditions of this lease
including, but not limited to, Article 31 hereof, and to the ground
leases, underlying leases and mortgages hereinbefore
mentioned.
Failure
to Give Possession: 24. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof
because of the holding-over or retention of possession of any tenant,
undertenant or occupants, or if the demised premises are located in a
building being constructed, because such building has not been
sufficiently completed to make the demised premises ready for occupancy,
or because of the fact that a certificate of occupancy has not been
procured, or for any other reason, Owner shall not be subject to any
liability for failure to give possession on said date and the validity of
the lease shall not be impaired under such circumstances, nor shall the
same be construed in any way to extend the term of this lease, but the
rent payable hereunder shall be abated (provided Tenant is not responsible
for Owner's inability to obtain possession or complete construction) until
after Owner shall have given Tenant written notice that the Owner is able
to deliver possession in condition required by this lease. If permission
is given to Tenant to enter into possession of the demises premises, prior
to the date specified as the commencement of the term of this lease,
Tenant covenants and agrees that such possession and/or occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions of
this lease, except the obligation to pay the fixed annual rent set forth
in the preamble to this lease. The provisions of this article are intended
to constitute "an express provision to the contrary" within the meaning of
Section 223-a of the New York Real Property Law.
No
Waiver: 25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this
lease or of any of the Rules or Regulations, set forth or hereafter
adopted by Owner, shall not prevent a subsequent act which would have
originally constituted a violation from having all the force and effect of
an original violation. The receipt by Owner of rent and/or additional rent
with knowledge of the breach of any covenant of this lease shall not be
deemed a waiver of such breach, and no provision of this lease shall be
deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other
than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment
as rent be deemed an accord and satisfaction, and Owner may accept such
check or payment without prejudice to Owner's right to recover the balance
of such rent or pursue any other remedy in this lease provided. No act or
thing done by Owner or Owner's agents during the term hereby demised shall
be deemed an acceptance of a surrender of the demised premises, and no
agreement to accept such surrender shall be valid unless in writing signed
by Owner. No employee of Owner or Owner's agent shall have any power to
accept the keys of said premises prior to the termination of the lease,
and the delivery of keys to any such agent or employee shall not operate
as a termination of the lease or a surrender of the demised
premises.
Waiver
of Trial by Jury: 26. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall, and they hereby do, waive
trial by jury in any action proceeding or counterclaim brought by either
of the parties hereto against the other (except for personal injury or
property damage) on any matters whatsoever arising out of, or in any
way connected with, this lease, the relationship of Owner and Tenant,
Tenant's use of, or occupancy of, the demised premises, and any emergency
statutory or any other statutory
remedy. It is further mutually agreed that in the event Owner commences
any proceeding or action for possession, including a summary proceeding
for possession of the demised premises, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding,
including a counterclaim under Article 4, except for statutory mandatory
counterclaims.
Inability
to Perform: 27. This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other
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covenants
and agreements hereunder on part of Tenant to be performed shall in no way
be affected, impaired or excused because Owner is unable to fulfill any of
its obligations under this lease, or to supply, or is delayed in
supplying, any service expressly or impliedly to be supplied, or is unable
to make, or is delayed in making, any repair, additions, alterations, or
decorations, or is unable to supply, or is delayed in supplying, any
equipment, fixtures, or other materials, if Owner is prevented or delayed
from so doing by reason of strike or labor troubles or any cause
whatsoever including, but not limited to, government preemption or
restrictions, or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency, or by
reason of the conditions which have been or are affected,
either directly or indirectly, by war or other emergency
Bills
and Notices: 28. Except as otherwise in this lease provided, a xxxx,
statement, notice, or communication which Owner may desire or be required
to give to Tenant, shall be deemed sufficiently given or rendered if, in
writing,
delivered to Tenant personally or sent by registered or certified mail
addressed to Tenant at the building of which the demised premises form a
part, or at the last known residence address or business address of
Tenant, or left at any of the aforesaid premises addressed to Tenant, and
the time of the rendition of such xxxx or statement and of the giving of
such notice or communication shall be deemed to be the time when the same
is delivered to Tenant, mailed, or left at the premises as herein
provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first
hereinabove given or at such other address as Owner shall designate by
written notice.
Services
Provided by Owners: 29. As long as Tenant is not in default under any of
the covenants of this lease beyond the applicable grace period provided in
this lease for the curing of such defaults, Owner shall provide: (a)
necessary elevator facilities on business days from 8 a.m. to 6 p.m. and
have one elevator subject to call at all other times; (b) heat to the
demised premises when and as required by law, on business days from 8 am.
to 6 p.m.; (c) water for ordinary lavatory purposes, but if Tenant uses or
consumes water for any other purposes or in unusual quantities (of which
fact Owner shall be the sole judge), Owner may install a water meter at
Tenant's expense, which Tenant shall thereafter maintain at Tenant's
expense in good working order and repair, to register such water
consumption, and Tenant shall pay for water consumed as shown on said
meter as additional rent as and when bills are rendered; (d) cleaning
service for the demised premises on business days at Owner's expense
provided that the same are kept in order by Tenant. If, however, said
premises are to be kept clean by Tenant, it shall be done at Tenant's sole
expense, in a manner reasonably satisfactory to Owner, and no one other
than persons approved by Owner shall be permitted to enter said premises
or the building of which they are a part for such purpose. Tenant shall
pay Owner the cost of removal of any of Tenant's refuse and rubbish from
the building; (e)
if the demised premises are serviced by Owner's air
conditioning/cooling and ventilating system, air conditioning/cooling will
be furnished to Tenant from May 15th through September 30th on business
days (Mondays through Fridays, holidays excepted) from 8:00 am to 6:00
pm., and ventilation will be furnished on business days during the
aforesaid hours except when air conditioning/cooling is being furnished as
aforesaid. If Tenant requires air conditioning/cooling or ventilation for
more extended hours on Saturdays, Sundays or on holidays, as defined under
Owner's contract with the International Union of Operating Engineers Logal
94, 94A, 94B,, Owner will furnish the same at Tenant's expense. RIDER to
be added in respect to rates and conditions for such additional service;
(f) Owner reserves the right to stop services of the heating, elevators,
plumbing, air-conditioning, electric, power systems or cleaning or other
services, if any, when necessary by reason of accident, or for repairs,
alterations, replacements or improvements necessary or desirable in the
judgment of Owner, for as long as may be reasonably required by reason
thereof. If the building of which the demised premises are a part supplies
manually operated elevator service, Owner at any time may substitute
automatic control elevator service and proceed diligently with alterations
necessary therefor without in any way affecting this lease or the
obligations of Tenant hereunder.
Captions:
30. The Captions are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this lease
nor the intent of any provisions thereof.
Definitions:
31. The term "office", or" offices", wherever used in this lease, shall
not be construed to mean premises used as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or
as a restaurant, shop, booth, bootblack or other stand, xxxxxx shop, or
for other similar purposes, or for manufacturing. The term "Owner" means a
landlord or lessor, and as used in this lease means only the owner, or the
mortgagee in possession for the time being, of the land and building (or
the owner of a lease of the building or of the land and building) of which
the demised premises form a part, so that in the event of any sale or
sales of said land and building, or of said lease, or in the event of a
lease of said building, or of the land and building, the said Owner shall
be, and hereby is, entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed
without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or
the said lessee of the building, or of the land and building, that the
purchaser or the lessee of the building has assumed and agreed to carry
out any and all covenants and obligations of Owner, hereunder The words
"re-enter" and "re-entry" as used in this lease are not restricted to
their technical legal meaning. The term "business days" as used in this
lease shall exclude Saturdays, Sundays and all days as observed by the
State or Federal Government as legal holidays and those designated as
holidays by the applicable building service union employees service
contract, or by the applicable Operating Engineers contract with respect
to HVAC service. Wherever it is expressly provided in this lease that
consent shall not be unreasonably withheld, such consent shall not be
unreasonably delayed.
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Rules
and Regulations: 33. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly
with, the Rules and Regulations and such other and further reasonable
Rules and Regulations as Owner and Owner's agents may from time to time
adopt. Notice of any additional Rules or Regulations shall be given in
such manner as Owner may elect. In case Tenant disputes the reasonableness
of any additional Rules or Regulations hereafter made or adopted by Owner
or Owner's agents, the parties hereto agree to submit the question of the
reasonableness of such Rules or Regulations for decision to the New York
office of the American Arbitration Association, whose determination shall
be final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rules or Regulations upon Tenant's part
shall be deemed waived unless the same shall be asserted by service of a
notice, in writing, upon Owner, within fifteen (15) days after the giving
of notice thereof. Nothing in this lease contained shall be construed to
impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as
against any other tenant, and Owner shall not be liable to Tenant for
violation of the same by any other tenant, its servants, employees,
agents, visitors or licensees.
Security:
34. Tenant has deposited with Owner the sum of $ 11,034.00 as
security for the faithful performance and observance by Tenant of the
terms, provisions and conditions of this lease; it is agreed that in the
event Tenant defaults in respect of any of the terms, provisions and
conditions of this lease, including, but not limited to, the payment of
rent and additional rent, Owner may use, apply or retain the whole or any
part of the security so deposited to the extent required for the payment
of any rent and additional rent, or any other sum as to which Tenant is in
default or for any sum which Owner may expend or may be required to expend
by reason of Tenant's default in respect of any of the terms, covenants
and conditions of this
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lease,
including but not limited to, any damages or deficiency in the re- letting
of the demised premises, whether such damages or deficiency accrued before
or after summary proceedings or other re-entry by Owner. In the event that
Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security shall be
returned to Tenant after the date fixed as the end of the lease and after
delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building, or leasing of the building, of
which the demised premises form a part, Owner shall have the right to
transfer the security to the vendee or lessee, and Owner shall thereupon
be released by Tenant from all liability for the return of such security;
and Tenant agrees to look to the new Owner solely for the return of said
security, and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Owner. Tenant further
covenants that it will not assign or encumber, or attempt to assign or
encumber, the monies deposited herein as security, and that neither Owner
nor its successors or assigns shall be bound by any such assignment
encumbrance, attempted assignment or attempted encumbrance.
Estoppel
Certificate: 35. Tenant at any time, and from time to time, upon at least
ten (10) days prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or corporation
specified by Owner, a statement certifying that this lease is unmodified
and in full force and effect (or, if there have been modifications, that
the same is in full force and effect as modified and stating the
modifications), stating the dates to which the rent and additional rent
have been paid, and stating whether or not there exists any default by
Owner under this lease, and, if so, specifying each such
default.
Successors
and Assigns: 36. The covenants, conditions and agreements contained in
this lease shall bind and inure to the benefit of Owner and Tenant and
their respective heirs, distributees, executors, administrators,
successors, and except as otherwise provided in this lease, their assigns.
Tenant shall look only to Owner's estate for the collection of a judgment
(or other judicial process) against Owner in the event of any default by
Owner hereunder, and no other property or assets of such Owner (or any
partner, member, officer or director thereof, disclosed or undisclosed),
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under, or with respect to, this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and
occupancy of the demised
premises.
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SEE RIDER
AND EXHIBIT ATTACHED HERETO AND MADE A PART HEREOF
In Witness Whereof,
Owner and Tenant have respectively signed and sealed this lease as of the day
and year first above written.
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Witness
for Owner:
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XXXXX
MANAGEMENT, INC. as agent for
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||||
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DAROR
ASSOCIATES LLC
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By:
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/s/
Xxxxxxx Xxxxx
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Date:
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September 25, 2009 | ||||
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Witness
for Tenant:
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By:
/s/ Xxx X. Xxxxxxxx
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Name:
Xxx X. Xxxxxxxx
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Title:
Chief Executive Officer
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Date:
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September 25, 2009 | ||||
On the
25th day of September in the year 2009, before me, the
undersigned, a Notary Public in and for said State, personally appeared Xxx
Xxxxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
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/s/ Xxxxxxx X. Xxxxxxx
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Notary
Public
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Xxxxxxx
X. Xxxxxxx
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Notary
Public, State of New York
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No.
01PA6041230
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Qualified
in Queens County
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Commission
Expires May 1, 2010
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GUARANTY
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FOR
VALUE RECEIVED, and in consideration for, and as an inducement to Owner
making the within lease with Tenant, the undersigned guarantees to Owner,
Owner's successors and assigns, the full performance and observance of all
the covenants, conditions and. agreements, therein provided to be
performed and observed by Tenant, including the "Rules and Regu1ations" as
therein provided, Without requiring any notice of non-payment,
non-performance, or non-observance, or proof; or notice, or demand,
whereby to charge the undersigned therefor, all of which the undersigned
hereby expressly waives and expressly agrees that the validity of this
agreement and the obligations of the guarantor hereunder shall in no way
be terminated, affected or impaired by reason of the assertion by Owner
against Tenant of any of the rights or remedies reserved to Owner pursuant
to the provisions of the within lease. The undersigned further covenants
and agrees that this guaranty shall remain and continue in full force and
effect as to any renewal, modification or extension of this lease and
during any period when Tenant is occupying the demised premises as a
"statutory tenant." As a further inducement to Owner to make this lease,
and in consideration thereof, Owner and the undersigned covenant and agree
that in any action or proceeding brought by either Owner or the
undersigned against the other on any matters whatsoever arising out
of, under, or
by virtue of; the terms of this lease or of this guarantee, that Owner and
the undersigned shall and do hereby waive trial by jury.
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||
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On
the
day
of in the
year before me, the undersigned, a Notary Public in and for said State,
personally appeared personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the
instrument.
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~
IMPORTANT-PLEASE READ ~
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RULES
AND REGULATIONS ATTACHED TO AND
MADE
A PART OF THIS LEASE
IN
ACCORDANCE WITH ARTICLE 36.
1. The sidewalks,
entrances, driveways, passages, courts, elevators, vestibules, stairways,
corridors or halls shall not be obstructed or encumbered
by Tenant or used for any purposes other than for ingress or egress
from the demised premises, and for delivery of merchandise and
equipment in a prompt and efficient manner using elevators and passageways
designated fur such delivery by Owner. There shall not be used in any
space, or in the public hall of the building. Either by any tenant or by
jobbers or others in the delivery or receipt of merchandise, any hand
trucks, except those equipped with rubber tires and sideguards. If said
premises are situated on the ground floor of the building, Tenant shall
further at Tenant's expense, keep the sidewalk and curb in front of said
premises clean and free from ice, snow, dirt, and rubbish.
2. The
water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which
they were designed or constructed, and no sweepings, rubbish, rags, acids
or other substances shall be deposited therein, and the expense of any
breakage, stoppage, or damage resulting from the violation of this rule
shall be borne by Tenant, whether or not caused by the Tenant, its clerks,
agents, employees or visitors.
3. No
carpet, rug or other article shall be hung or shaken out of any window of
the building; and Tenant shall not sweep or throw, or permit to be swept
or thrown, from the demised premises any dirt or other substances into any
of the corridors or halls, elevators, or out of the doors or windows or
stairways of the building, and Tenant shall not use, keep or permit to be
used or kept, any foul or noxious gas or substance in the demised
premises, or permit or suffer the demised premises to be occupied or
used in a manner offensive or objectionable to Owner or other a occupants
of the building by reason of noise, odors, and/or vibrations, or interfere
in any way with other tenants or those having business therein, nor shall
any bicycles, vehicles, animals, fish, or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the
elevators of the building is prohibited.
4.
No awnings or other projections shall be attached to the outside walls of
the building without the prior written consent of Owner.
5.
No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant in any part of the outside of the
demised premises or the building or on the inside of the demised
premise if the same is visible from the outside of the demised
premises, without the prior written consent of Owner, except that the name
of Tenant may appear on the entrance door of the demised premises. In the
event of the violation of the foregoing by Tenant, Owner may remove same
without any liability, and may charge the expense incurred by such removal
to Tenant. Interior signs on door and directory tablet shall be inscribed,
painted or affixed for Tenant by Owner at the expense of Tenant, and shall
be of a size, color and style acceptable to Owner.
6.
Tenant shall not xxxx, paint, drill into, or in any way deface any part of
the demised premises or the building of which they form a part. No boring,
cutting, or stringing of wires shall be permitted, except with the prior
written consent of Owner, and as Owner may direct. Tenant shall not
lay linoleum or other
similar floor covering so
that the same shall come in direct contact with the floor of the demised
premises, and, if linoleum or other similar floor covering is desired to
be used, an interlining of builder's deadening felt shall be first affixed
to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly
prohibited.
7..
No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Tenant must, upon the termination of his
tenancy, restore to Owner all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by, Tenant, and in the event of
the loss of any keys so furnished, Tenant shall pay to Owner the cost
thereof.
8.
Freight, furniture, Business, equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the demised
premises only on the freight elevators and through the service entrances
and corridors, and only during hours
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and
in a manner approved by Owner. Owner reserves the right to inspect all
freight to be brought into the building and to exclude from the building
all freight which violates any of these Rules and Regulations of the
lease, or which these Rules and Regulations are a part.
9.
Tenant shall not obtain for use upon the demised premises ice, drinking
water, towel or other similar services, or accept barbering or
bootblacking services in the demised premises, except from persons
authorized by Owner, and at hours and under regulations fixed by
Owner. Canvassing, soliciting and peddling in the building is
prohibited and Tenant shall cooperate to prevent the same.
10.
Owner reserves the right to exclude from the building all persons who do
not present a pass to the building signed by Owner. Owner will furnish
passes to persons for whom Tenant requests same in writing. Tenant shall
be responsible for all persons for whom he requests such pass, and shall
be liable to Owner for all acts of such persons. Notwithstanding the
foregoing, Owner shall not be required to allow Tenant or any person to
enter or remain in the building, except on business days from 8:00 a.m. to
6:00 p.m. and on Saturdays from 8:00 a.m. to 1:00 p.m. Tenant shall not
have a claim against Owner by reason of Owner excluding from the building
any person who does not present such pass.
11.
Owner shall have the right to prohibit any advertising by Tenant which in
Owner's opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from
Owner, Tenant shall refrain from or discontinue such
advertising.
12.
Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible, explosive, or hazardous
fluid, material, chemical or substance, or cause or permit any odors
of cooking or other processes, or any unusual or other objectionable
odors, to permeate in, or emanate from the demised
premises.
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Rider
attached to and made a part of office lease dated September 17, 2009 between
Xxxxx Management Inc., as agent for DAROR ASSOCIATES LLC ("Landlord") and
ACCOUNTABILITIES, INC. ("Tenant") for space consisting of part of the eleventh
(11th) floor known as Suite 1100 (the “demised premises”) at 000 Xxxxxxxx, Xxx
Xxxx, XX 00000 (the “Building”).
37.01 The
term of this Lease shall begin on November 1, 2009 (the "Commencement
Date"). The term
of this Lease shall expire on December 31, 2016 (the “Expiration Date”) unless
sooner terminated as herein provided.
37.02. Tenant
covenants and agrees to pay rent (the "Base Rent" or "Fixed Rent") to Landlord
in advance monthly installments on the first day of each and every calendar
month during the term of this Lease without any prior demand, offset or
deduction of any kind whatsoever (except for the first monthly installment
thereof, which shall be paid by Tenant upon execution hereof) at the following
annual rental rates:
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Lease Year or Period
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Annual Base Rent.
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Monthly Base Rent.
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November
1, 2009-October 31, 2010
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$ | 66,204.00 | $ | 5,517.00 | ||||
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November
1, 2010-October 31, 2011
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$ | 67,859.10 | $ | 5,654.93 | ||||
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November
1, 2011-October 31, 2012
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$ | 69,555.58 | $ | 5,796.30 | ||||
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November
1, 2012-October 31, 2013
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$ | 71,294.47 | $ | 5,941.21 | ||||
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November
1, 2013-October 31, 2014
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$ | 73,076.83 | $ | 6,089.74 | ||||
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November
1, 2014-October 31, 2015
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$ | 74,903.75 | $ | 6,241.98 | ||||
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November
1, 2015-October 31, 2016
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$ | 76,776.34 | $ | 6,398.03 | ||||
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November
1, 2016-December 31, 2016
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$ | 78,695.75 | $ | 6,557.98 | ||||
37.03. Tenant
shall accept the demised premises in its "as is" condition except Landlord
shall, at Landlord’s cost and expense at or about the commencement of the term,
using Landlord’s building standard labor and materials, perform the following
work (“Landlord’s Work”) once:
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1.
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Paint
walls and trim in color to be selected by Tenant from Landlord’s building
standard paint chart.
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2.
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Carpet
floors in color and style to be selected by Tenant from Landlord’s
building standard carpet samples.
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3.
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Build
as per Plan annexed hereto as Exhibit
“C”.
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38.1.
As used in this Article and this Lease the words and terms which follow mean and
include the following:
(a)
Intentionally omitted.
(b)
"Tax Year"
shall mean each period of twelve months, commencing on the first day of July of
each such period, in which occurs any part of the term of this Lease or such
other fiscal year as hereafter may be duly adopted as the fiscal year for real
estate tax purposes of the City of New York.
(c)
"Tenant's
Proportionate Share" shall mean one and fifty eight hundredths of one
percent (1.58%).
(d)
"Area of the demised
premises" shall mean the rentable square foot area of the demised
premises (which the parties have agreed shall be 2,452 square feet for the
purposes of this Lease).
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(e)
"Real Estate
Tax" shall mean any and all taxes and assessments (including, without
limitation, special and extraordinary assessments) levied, assessed and/or
imposed upon the Building(s) and the Land(s) of which the demised premises forms
a part without regard to tax abatements. If there is a change in the
method of taxation which results in any franchise, income, rent, profit or other
tax, however designated, being levied against Landlord and/or the owner of the
Land(s) and Building(s) in substitution of, or in addition to any Real Estate
Tax, in whole or in part, such tax or taxes shall be considered to be a Real
Estate Tax for the purposes hereof.
(f)
"Real Estate Tax
Base" shall mean the Real Estate Taxes for the one year fiscal period
(i.e., July 1 to June 30) of 2009/10.
(g)
"Escalation
Statement" shall mean statement in writing signed by Landlord, setting
forth the amount payable by Tenant for a specified Tax Year pursuant to this
Article.
38.2.
If the Real Estate Taxes for any Tax Year shall be greater than the Real Estate
Tax Base, Tenant shall pay the Landlord as additional rent for the demised
premises for such Tax Year an amount equal to Tenant's Proportionate Share of
the difference between Real Estate Taxes for such Tax Year and the Real Estate
Tax Base.
38.3. Any such adjustment payable
by reason of the provisions of Section 38.2 hereof shall be payable within
fifteen (15) days after Landlord shall furnish to Tenant an Escalation Statement
with respect to Real Estate Taxes for any Tax Year.
38.4.
In the event (i) that the date of the expiration or other termination of this
Lease shall be a day other than the last day of a Tax Year or (ii) of any
increase or decrease in the Area of the demised premises (as may be provided
herein), then in each such event in applying the provisions of this Article with
respect to any Tax Year in which such event shall have occurred, appropriate
adjustments shall be made to reflect the occurrence of such event on a basis
consistent with the principles underlying the provisions of this Article
taking into consideration: (a) the portion of such Tax Year which shall
have elapsed prior to the date of such expiration or termination; or (b) in the
case of any such increase or decrease, the portion of the demised premises to
which the same relate. Similarly, if the term of this Lease shall begin or
end on a date which is not the first (with respect to term commencement) or the
last (with respect to expiration or termination) day of a calendar month,
appropriate adjustments shall be made to Fixed Rent and additional rent for the
first or last month of the term, as the case may be, to reflect the portion of a
month falling within the term of this Lease. However, nothing contained
herein shall relieve Tenant of liability for all Fixed Rent and additional rent
which would have been due following termination for Tenant's
default.
38.5.
Payments shall be made pursuant to this Article notwithstanding the fact that an
Escalation Statement is furnished to Tenant after the expiration of the term of
this Lease.
38.6.
In case the Real Estate Taxes for any Tax Year or part thereof shall be reduced
before Tenant shall have paid Tenant's Proportionate Share of any excess thereof
in respect of such Tax Year pursuant to Section 38.2 hereof, the Real Estate
Taxes for such Tax Year shall be deemed to include any expenses, including
counsel fees, incurred by Landlord in connection with reducing the assessed
valuation and/or in obtaining such reduction.
38.7.
In case the Real Estate Taxes for any Tax Year or part thereof shall be reduced
after Tenant shall have paid Tenant's Proportionate Share of any excess thereof
in respect of such Tax Year pursuant to Section 38.2 hereof, Tenant shall be
entitled to receive Tenant's Proportionate Share of such reduction after
Landlord's receipt of a refund or credit for said reduction, provided, however,
that the Real Estate Taxes for such Tax Year shall be deemed to include any
expenses, including counsel fees, incurred by Landlord in connection with
obtaining said reduction.
39. The
rental stipulated herein does not include electrical service. Tenant
will pay the cost of electric current consumed in the Demised Premises directly
to the utility and shall pay all charges required by the utility company for its
directly metered electricity service and repair, replace, and maintain any
required meter at Tenant’s own expense. Landlord shall permit Tenant
to use Landlord’s wires and conduits to the extent available and safely capable
to be used for Tenant’s purposes.
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40.
All taxes, charges, costs and expenses which the Tenant is required to pay under
any terms of this Lease, together with all interest and penalties that may
accrue thereon, in the event of the Tenant's failure to pay such amounts and all
damages, costs and expenses which the Landlord may incur by reason of any
default of the Tenant or failure on the Tenant's part to comply with the terms
of this Lease, shall be deemed to be additional rent and, in the event of
nonpayment by the Tenant, the Landlord shall have all the rights and remedies
with respect thereto as the Landlord has for the nonpayment of the fixed
rent. If Landlord does not receive full payment for rent (i.e., Fixed Rent
and/or additional rent) within ten (10) days after the date on which payment is
due, Tenant shall be liable to Landlord for all reasonable legal fees
and interest on late payments at an annual rate equal to one percent
above the prime lending rate then in effect for loans of Citibank, N.A. (or its
successor) in the State of New York, which shall accrue on a daily basis from
the date on which the payment was due to the date on which Landlord collects
payment in full. However, if the collection of interest at the rate
specified herein would be usurious or otherwise unenforceable, interest on late
payments shall accrue at the highest lawful rate.
41.01.
If the Landlord or any successor in interest shall be an individual, joint
venture, Tenants-in-common, firm or partnership, general or limited, or limited
liability company or partnership, there shall be no personal liability on such
individual or on the members of such joint venture, tenants-in-common, firm,
company, or partnership in respect to any of the covenants or conditions of this
Lease. The Tenant shall look solely to the equity of the Landlord in the
property (i.e., the land and building of which the demised premises form a part)
for the satisfaction of the remedies of the Tenant in the event of a breach by
the Landlord of any of the covenants or conditions of this
Lease.
41.02.
Each party agrees, at any time and from time to time, as requested by the other
party, upon not less than ten (10) days' prior notice, to execute and deliver to
the other a statement certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), certifying the dates to
which the Fixed Rent and additional rent have been paid, and stating whether or
not, to the best knowledge of the signer, the other party is in default in
performance of any of its obligations under this Lease, and, if so, specifying
each such default of which the signer may have knowledge, it being intended that
any such statement delivered pursuant hereto may be relied upon by others with
whom the party requesting such certificate may be dealing.
42.
All notices required herein shall be in writing, addressed to Landlord and
Tenant at the addresses set forth herein, except after Tenant has commenced
occupancy of the demised premises, notices shall be sent to the demised premises
and shall be delivered personally or sent by certified mail, return receipt
requested. The date of delivery or mailing shall be deemed to be the date
on which notice is given. Either party may change the address to which
notices to it are to be sent on seven (7) day’s prior notice.
43.
Tenant warrants to Landlord that no real estate agent or broker except XXXXX
MANAGEMENT INC. brought about this Lease and agrees to indemnify and defend
Landlord on demand against all claims made by (other) brokers and agents for
fees or commissions with respect to this Lease.
44.
Landlord shall be entitled on at least one hundred eighty (180) day’s prior
written notice thereof, to cancel this Lease for the purpose of actually
demolishing the Building or changing the Building use to residential and this
Lease shall come to an end on the date in such notice specified with the same
force and effect as if such date were the date herein specified for the
expiration hereof and the rent, including any additional rent provided for under
this Lease, shall be apportioned and adjusted as of the effective date of such
cancellation.
45.
Landlord shall be entitled to relocate the Tenant for any reason whatsoever to
other space in the Building which is comparable as to amount, facilities and
improvements, on at least thirty (30) day’s prior written notice thereof, and
the Tenant shall remove peacefully from the demised premises which it is
occupying on the date specified in such notice, provided that Tenant's
reasonable costs of relocation shall be paid for by Landlord.
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46.01.
Article 11 of this Lease is modified to the following extent. If Tenant
shall desire to assign this Lease or sublet the leased demised premises, in
whole or in part, Landlord will not unreasonably withhold or delay its prior
written consent thereto provided:
A. Tenant
shall give Landlord prior notice ("Tenant's Notice") of its desire to assign
this Lease or sublet all, or any portion of the demised premises. Tenant's
Notice must be given to Landlord at least sixty (60) days, but not more than one
hundred twenty (120) days prior to the date on which the assignment would become
effective, or at least sixty (60) days, but not more than one hundred twenty
(120) days prior to the date on which the term of the sublease would
start. Tenant's Notice shall include a duplicate copy of the assignment or
sublease, if one has already been executed (but such execution must be subject
to Landlord's consent as herein provided) or, if the assignment or sublease has
not yet been executed, Tenant's Notice shall identify the proposed assignee or
subtenant and shall contain a copy of the proposed assignment or sublease which
conforms in all material respects to the one that Tenant wants Landlord to
consent to.
B. An
assignment shall include an assumption by the assignee, from and after the
effective date of such assignment, of the performance and observance of all of
the covenants and conditions in this Lease contained on Tenant's part to be
performed and observed as if the assignee had executed this Lease as the
original Tenant. A sublease shall specify that it is subject to this Lease
and that the demised premises to be sublet shall be used solely for the same use
permitted hereunder for Tenant. No sublease (for all or part of the
demised premises) or assignment of this Lease shall permit further assignment or
subletting (in whole or in part) without the prior written consent of Landlord
in each instance.
C. If
Tenant shall give Tenant's Notice of a desire to assign this Lease, or to sublet
all or part of the demised premises hereby leased, Landlord shall be entitled to
cancel this Lease on at least sixty (60) days', but not more than one hundred
twenty (120) days', prior notice thereof, and this Lease shall come to an end on
the date in such notice specified, with the same force and effect as if such
date were the date herein specified for the expiration hereof, and the rent
(i.e., Base Rent and additional rent) provided for under this Lease shall be
apportioned and adjusted as of the effective date of such cancellation.
Landlord's notice of cancellation may be given at any time following Landlord's
receipt of Tenant's Notice and Landlord's right of cancellation shall persist
for the balance of the term of this Lease without regard to whether or not
Landlord's consent was given to any assignment of this Lease or sublease for all
or any portion of the demised premises. Landlord's acceptance of rent
shall not constitute the waiver of any of Landlord's rights.
D. Whenever
Tenant shall claim under this Article or any other part of this Lease that
Landlord has unreasonably withheld or delayed its consent to some request of
Tenant, Tenant shall have no claim for damages by reason of such alleged
withholding or delay, and Tenant's sole remedies therefor shall be a right to
compel arbitration of the matter in dispute or to obtain specific performance,
but in any event without recovery of damages;
E. Tenant
shall have no right to sublet (in whole or in part) or to assign if it is in
default under this Lease. No assignment of this Lease and no sublease for
all or any part of the demised premises shall relieve Tenant of liability to
Landlord for breach of this Lease.
F. In
the event that the monthly rental which Tenant receives from a sublease for all
or any portion of the demised premises permitted hereunder is greater than a sum
equal to the percentage of the total area of the demised premises which is
sublet multiplied by Tenant's rent (i.e., Base Rent and additional rent) per
month, the difference between said sums shall be paid to Landlord each month as
additional rent. Any and all consideration required to be paid to Tenant
by an assignee in connection with an assignment permitted hereunder shall be
paid to Landlord by Tenant as additional rent.
G. No
subtenant or assignee shall be: an employment agency, a governmental or
quasi-governmental organization; a non-for-profit corporation or organization; a
current or former tenant, subtenant or occupant of the Building; or a
prospective tenant who is negotiating with Landlord for space in the Building or
who has so negotiated within the previous six (6) months.
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H. Anything
contained in this Article to the contrary
notwithstanding:
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(i)
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Landlord
shall not be required to consent to any sublease which provides for a Base
Rent per square foot per annum that is less than the quotient derived from
adding Tenant's Base Rent per annum plus additional rent per annum being
paid by Tenant pursuant to Article 38 at the time in question and dividing
such sum by the Area of the demised
premises;
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(ii)
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nor
shall Landlord be required to consent to a sublease which provides for a
rental that is less than the highest rental which Landlord could obtain
for the space which Tenant proposes to sublet if Landlord put such space
on the market at the time in
question.
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46.02. Tenant
shall not publish or disseminate advertisements for a subtenant or assignee and
must use the real estate broker or agent designated by Landlord as the sole
broker or agent for a sublease or assignment permitted under this Article.
Landlord shall be entitled to injunctive relief to enforce the provisions of
this Article and the parties agree that irreparable injury in the form of
damages to Landlord that are large, irreversible and difficult to precisely
evaluate shall be deemed to result from the breach of the provisions of this
Article by Tenant.
46.03. Tenant
shall not be a subtenant or an assignee pursuant to any assignment or sublease
whatsoever which relates to space in the Building of which the demised premises
forms a part.
47.01. Subject
to the provisions of this Article, this Lease may be assigned, or the demised
premises may be sublet, in whole or in part, to any corporation or other entity
which shall be an affiliate, subsidiary, or successor of
Tenant.
47.02. As
used in this Article "subsidiary", "affiliate" and "successor" of Tenant shall
mean the following:
(a) An
"affiliate" shall mean any corporation or other entity which controls Tenant, is
controlled by Tenant or is under common control with Tenant. For this
purpose, "control" shall mean the possession of the power to direct or cause the
direction of the management and policies of such corporation, whether through
ownership of voting securities or by contract or otherwise.
(b) A
"subsidiary" shall mean any corporation or other entity not less than fifty-one
percent (51%) of whose outstanding stock or whose equity shall at the time be
owned by Tenant.
(c) A
"successor" shall mean:
(i) A
corporation or other entity into which or with which Tenant is merged or
consolidated, in accordance with applicable statutory provisions for merger or
consolidation of corporations, provided that by operation of law or by effective
provisions contained in the instruments of merger or consolidation the
liabilities of the corporations or other entity participating in such merger or
consolidation are assumed by the corporation surviving such merger or created by
such consolidation, or
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(ii)
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A
corporation or other entity acquiring this Lease and the term hereby
demised and a substantial portion or all of the property and assets of
Tenant, provided that such corporation shall have a positive (as opposed
to a negative) net worth immediately after such acquisition and such net
worth is not less than Tenant's net worth immediately prior to such
acquisition.
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47.04.
An assignment of this Lease or a sublease relating to all or part of the demised
premises pursuant to this Article shall not relieve Tenant of liability to
Landlord for breach of this Lease. Tenant shall not enter into an
assignment or sublease of any kind while Tenant is in default under this
Lease. Tenant shall furnish Landlord, on demand, with such documents and
information as Landlord may reasonably require to substantiate relationships,
conditions and transactions described in this Article, including but not limited
to, an assignment and assumption agreement or sublease agreement, as the case
may be, conforming to the requirements of paragraph 46.01(B). No sublease
for all or part of the demised premises and no assignment of this Lease shall
permit further assignment or the subletting of all or part of the demised
premises without Landlord's prior written consent in each instance.
Landlord's acceptance of rent shall not constitute Landlord's waiver of any of
its rights.
48.01. In
the event Tenant shall become a debtor under Chapter 7 of the Bankruptcy Code as
it may be amended or to any other successor statute thereto, and the Trustee
and/or Tenant shall elect to assume this Lease for the purpose of assigning the
same or otherwise, such election and assignment may only be made if all of the
terms and conditions of paragraphs 48.02 and 48.03 hereof are
satisfied. If such Trustee shall fail to elect or assume this Lease
within thirty (30) days after the filing of the Petition, this Lease shall be
deemed to have been rejected. Landlord shall be thereupon immediately
entitled to possession of the demised premises without further obligation to
Tenant or Trustee, and this Lease shall be canceled, but Landlord’s right to be
compensated for damages in such liquidation proceeding shall
survive. In the event Tenant or the Trustee fail to vacate the
demised premises after the Lease is rejected, Landlord may move the Bankruptcy
Court before which the case is pending for an order directing Tenant and/or
Trustee to vacate the demised premises. It is agreed that such motion
by Landlord shall be deemed to be a "core proceeding" as that term is
contemplated by 28 U.S.C. 157.
48.02. In
the event a Petition for reorganization or adjustment of debts is filed
concerning Tenant under Chapter 11 of the Bankruptcy Code, or a proceeding is
filed under Chapter 7 of the Bankruptcy Code and is converted to Chapter 11, the
Trustee or Tenant, as Debtor-In-Possession, must elect to assume this Lease
within thirty (30) days from the date of the filing of the Petition under
Chapter 11 or the Trustee or Tenant shall be deemed to have rejected this
Lease. In the event Tenant or the Trustee fail to vacate the demised
premises after the Lease is rejected, Landlord may move the Bankruptcy Court
before which the case is pending for an order directing Tenant and/or the
Trustee to vacate the demised premises. It is agreed that such motion
by Landlord shall be deemed to be a "core proceeding" as that term is
contemplated by 28 U.S.C. 157. No election by the Trustee or Tenant
to assume this Lease, whether under Chapter 7 or 11 shall be effective unless
each of the following conditions, which Landlord and Tenant acknowledge are
commercially reasonable in the context of Tenant’s bankruptcy proceeding, have
been satisfied, and Landlord and Tenant have so acknowledged in
writing:
48.02.1. The
Trustee or Tenant has cured all defaults under the Lease and has provided
Landlord adequate assurance of future performance of the Lease's terms on the
date of such assumption of the Lease.
48.02.2. The
Trustee or Tenant has provided Landlord with adequate assurance of the future
performance of each of Tenant’s or the Trustee's obligations under this Lease;
provided, however, that:
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(a)
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The
Trustee or Tenant shall also deposit with Landlord, as security for the
timely payment of rent, an additional amount equal to three (3)
installments of Base Rent and other monetary charges accruing under this
Lease; and
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(b)
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If
not otherwise required by the terms of this Lease, the Trustee or Tenant
shall also pay in advance on the date Base Rent is payable 1/12th of
Tenant's annual obligations under this Lease for additional rents (i.e.,
real estate tax, porters wage escalations, electricity) and similar
charges.
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(c)
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From
and after the date of the assumption of this Lease, the Trustee or Tenant
shall pay as rent an amount equal to the sum of the Base Rent otherwise
payable hereunder, which amount shall be payable in advance in equal
monthly installments on the date Base Rent is
payable.
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(d)
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The
obligations imposed upon the Trustee or Tenant shall continue with respect
to Tenant and/or any assignee of the Lease after the completion of
bankruptcy proceeding.
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48.02.3.
The assumption of this Lease will not:
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(a)
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Breach
any provision in any other lease, mortgage, financing agreement or other
agreement by which Tenant is bound relating to the demised
premises.
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(b)
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Disrupt,
in Landlord’s reasonable judgment, the tenant mix of the Building or any
other attempt by Landlord to provide a specific variety of tenants in the
Building, in Landlord’s judgment, would be most beneficial to all of the
tenants at property where the Building is located and would enhance the
image, reputation and profitability of the
Building.
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48.03. For
purposes of this Paragraph, Landlord and Tenant acknowledge that in the context
of Tenant’s bankruptcy proceeding, at a minimum "adequate assurance" shall
mean:
48.03.1. The
Trustee or Tenant has and will continue to have sufficient unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Landlord that the Trustee or Tenant will have sufficient funds to fulfill
Tenant’s obligations under this Lease, and to keep the demised premises properly
used and staffed with sufficient employees to conduct a fully operational
actively promoted business on the demised premises; and
48.03.2. The
Bankruptcy Court shall have entered an Order segregating sufficient cash payable
to Landlord and/or the Trustee or Tenant shall have granted a valid and
perfected first lien and security interest and/or mortgage in Tenant’s or
Trustee's property, acceptable as to value and kind to Landlord, to secure to
Landlord the obligation of the Trustee or Tenant to cure the monetary and/or
non-monetary defaults under this Lease within the time periods set forth
above.
48.03.3. In
the event that this Lease is assumed by a Trustee appointed for Tenant or by
Tenant as Debtor-In-Possession under the provisions of Sub-paragraph 48.03.2
hereof and thereafter Tenant is liquidated or a subsequent Petition for
reorganization or adjustment of debts under Chapters 11 or 13 of the Bankruptcy
Code is filed, then, and in either of such events, Landlord may, at Landlord’s
option, terminate this Lease and all of Tenant’s rights hereunder, by giving
Tenant written notice of its election to so terminate, by no later than thirty
(30) days after the occurrence of either of such events.
48.03.4. If
the Trustee or Tenant has assumed the Lease pursuant to the terms and provisions
of Paragraphs 48.01 or 48.02 herein, for the purposes of assigning (or elects to
assign) Tenant’s interest under this Lease or the estate created thereby, to any
other person, such interest or estate may be so assigned only if Landlord shall
acknowledge in writing that the intended assignee has provided adequate
assurance as defined in this Sub-paragraph 48.03.4 of future performance of all
of the terms, covenants and conditions of this Lease to be performed by
Tenant. For purposes of this Sub-paragraph 48.03.4, Landlord and
Tenant acknowledge that, in the context of Tenant’s Bankruptcy proceeding, at a
minimum "adequate assurance of future performance" shall mean that each of the
following conditions have been satisfied, and Landlord has so acknowledged in
writing that:
(a) The
assignee has submitted a current financial statement audited by a certified
public accountant which shows a net worth and working capital in amounts
reasonably determined to be sufficient by Landlord to assure the future
performance by such assignee of Tenant’s obligations under this
Lease;
(b) The
assignee, if requested by Landlord, shall have obtained and provided guarantees
in form and substance reasonably satisfactory to Landlord from one or more
persons who satisfy Landlord’s standards of creditworthiness;
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(c) The
assignee has submitted in writing evidence, reasonably satisfactory to Landlord,
of substantial experience in the area of business permitted under this Lease;
and
(d) Landlord
has obtained all consents or waivers from any third party required under any
lease, mortgage, financing arrangement or other agreement by which Landlord is
bound to permit Landlord to consent to such assignment.
48.03.5. When,
pursuant to the Bankruptcy Code, the Trustee or Tenant shall be obligated to pay
reasonable use and occupancy charges for the use of the demised premises or any
portion thereof, such charges shall not be less than the Base Rent as defined in
this Lease and other of Tenant’s monetary obligations for the payment of
additional rents (i.e., operating cost and real estate tax escalations,
electricity) and similar charges.
48.03.6. Neither
Tenant’s interest in the Lease, nor any lesser interest herein, nor any estate
of Tenant’s hereby created, shall pay to any trustee, receiver, assignee for the
benefit of creditors, or any other person or entity, or otherwise by operation
of law under the laws of any state having jurisdiction of the person or Tenant’s
property (hereinafter referred to as the "state law") unless Landlord shall
consent to such transfer in writing. No acceptance by Landlord of
rent or any other payments from any such trustee, receiver, assignee, person or
other entity shall be deemed to have waived, nor shall it waive the need to
obtain Landlord’s consent or Landlord’s right to terminate this Lease for any
transfer of Tenant’s interest under this Lease without such
consent.
48.03.7. In
the event Tenant’s estate created hereby shall be taken in execution or by other
process of law, or if Tenant or any guarantor of Tenant’s obligations hereunder
(hereinafter referred to as the "Guarantor") shall be adjudicated insolvent
pursuant to the provisions of any present or future insolvency law under state
law, or if any proceedings are filed by or against the guarantor under the
Bankruptcy Code, or any similar provisions of any future federal bankruptcy law,
or if a Receiver or Trustee of Tenant’s property or the guarantor shall be
appointed under state law by reason of Tenant’s or the Guarantor's insolvency or
if any assignment shall be made of Tenant’s or the Guarantor's interest in the
Lease for the benefit of creditors; then and in such event Landlord may, at
Landlord’s option, terminate this Lease and all of Tenant’s rights hereunder by
giving Tenant written notice of the election to so terminate within thirty (30)
days after the occurrence of such event.
48.04. As
collateral security for Tenant’s monetary obligations under this Lease, Tenant
hereby grants to the Landlord a security interest in and to all of the contents
of the demised premises, their proceeds and replacements which provided Tenant
is not in default of any of the monetary provisions of the Lease shall be
subordinate to all other debts and obligations of Tenant. Tenant
hereby consents to Landlord executing and filing on Tenant’s behalf of all
necessary financing statements as may be required to perfect such security
interest as may be necessary under the Uniform Commercial Code.
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49. Landlord
acknowledges that Tenant may request that Landlord join Tenant in executing the
Commercial Revitalization Program Application (the “Application”) for real
estate tax abatement (the “Abatement”) applicable to pre-1975 buildings in Lower
Manhattan effective October 29, 1995. Landlord agrees to join Tenant
in executing the Application subject to Tenant’s paying all costs and expenses
to make Application, including but not limited to the filing fee, and Tenant’s
paying all other fees regarding the Abatement covering this Lease, and that
Tenant shall pursue the Abatement in a reasonable manner (and in this regard,
Tenant, and not Landlord, is fully responsible to timely submit and for the
accuracy of, the Application and all ancillary documents, and Landlord’s only
ancillary documentation), and Landlord’s only obligation in this matter shall be
to reasonably cooperate with Tenant at no cost or expense to
Landlord. Landlord shall not be required to join Tenant in executing
the Application and all ancillary documentation if doing so would result in any
loss, cost or damage to Landlord or if the Application and all ancillary
documentation are not accurately completed. Tenant acknowledges that
Landlord makes no representation that (i) this Lease or the demised premises
covered by this Lease is eligible for the Abatement, (ii) the Abatement covering
this Lease, if any, will be obtained (or once obtained that the Abatement will
continue in effect), and (iii) the effectiveness of this Lease and Tenant’s
obligation to pay basic annual rent, additional rent and other charges
(collectively, the “Rent”) under this Lease shall not be affected by whether or
not the Abatement covering this Lease is obtained (or once obtained the
Abatement continues in effect). The Rent set forth in this Lease does
not reflect the Abatement, and if the Abatement covering this Lease is granted
and is in effect then the amount Landlord charges Tenant for Rent shall
accurately reflect said Abatement. However, if and in the extent
Landlord is not required to pay real estate taxes for any reason other than the
Abatement, Landlord shall charge Tenant for Rent without Reflecting the
Abatement. Landlord and Tenant acknowledge that an expenditure of not
less than $10.00 per square foot of the demised premises (the “Expenditure
Minimum”) must be timely made to the demised premises and/or the common areas of
the Building by Landlord and/or Tenant in order to qualify for the Abatement;
Landlord’s acknowledgment set forth above in this sentence does not require
Landlord to make any expenditure that Landlord has not otherwise agreed to make
or to consent to any improvements to be made by Tenant to which Landlord is not
otherwise required to consent, and therefore Landlord makes no representation
that the Expenditure Minimum will be timely reached for this
Lease. The calculation of (i) the amount of the Abatement covering
this Lease, (ii) the Expenditure Minimum, and (iii) the square footage of the
demised premises for purposes of completing the Application and calculating the
Abatement covering this Lease, only shall apply the Department of Finance
calculation of the square footage of the Building and Tenant’s Proportionate
Share set forth in the Article of this Lease covering Real Estate Tax
Escalation, and Landlord and Tenant agree that the above-mentioned calculations
and square footage shall have no application except with regard to the
Abatement. Landlord and Tenant acknowledge that the Abatement
covering this Lease may be revoked if real estate taxes or water or sewer
charges or other lienable charges on the Building are unpaid for one (1) year
(unless delinquent amounts are paid as provided for in the law covering the
Abatement). Tenant agrees that Tenant is only entitled to the
benefits of the Abatement so long as Landlord’s actual real estate tax payments
are reduced to reflect the Abatement and therefore there shall be no reduction
in Tenant’s payment of Rent in anticipation of the Abatement or for any reason
other than the Abatement. The additional rent due and payable under
the Article of this Lease regarding Real Estate Tax Escalation is independent of
and shall not be affected by or reflect the Abatement.
50. The
moving into, or moving out of the Building, any oversized shipments or
deliveries, multiple use of one freight elevator or use of more than one freight
elevator, and any exclusive freight elevator usage of, by or for Tenant, at
Landlord's discretion, shall be on advance notice and involve freight elevator
use (subject to prior scheduling and availability) only on weekends and holidays
or after 4 PM on business days. Tenant shall pay Landlord's then current freight
elevator charges, including a four (4) hour minimum charge, and comply such
other rules and regulations relating to freight elevator usage as Landlord may
adopt from time to time.
51. The
total annual rental at the rates specified for the entire term is due in advance
and in full, but, as an accommodation to Tenant, Tenant is allowed to pay Annual
Base Rent in monthly installments as hereinabove provided, subject to
acceleration without further notice as provided below if this Lease is
terminated for a default of Tenant. Anything to the contrary
contained in Article 18 notwithstanding, if there is a lease termination under
Article 17, Landlord may, at Landlord's option, forthwith be entitled to recover
from Tenant as and for liquidated damages with respect to any such lease
termination, an amount equal to the rent provided hereunder for the unexpired
portion of the term demised. Upon the computation of such damages,
all rent payable hereunder after the date of termination, shall be discounted
from the date of termination at the rate of four (4%) percent per
annum. In the event that the demised premises are relet after the
date of such termination and the date of the collection of the aforesaid
liquidated damages, then Landlord agrees that on the date (the "Expiry Date")
which would otherwise have been the normal expiration of this Lease but for the
termination of this Lease, Landlord shall pay to Tenant a sum equal to the
minimum rent actually paid Landlord from the date of such termination to the
Expiry Date, less any and all expenses of any type, kind or nature incurred by
Landlord in connection with the reletting of the demised premises whether
foreseen of unforeseen and whether ordinary or extraordinary as conclusively
determined by Landlord, provided, however, that such payment shall in no event
exceed the amount of liquidated damages actually paid by Tenant as
aforesaid. The foregoing, however, shall not imply any obligation
upon Landlord to relet the demised premises in the event of any termination
pursuant to the provisions of Article 17, nor shall it constitute Landlord as
Tenant's agent with respect to any reletting of the demised
premises. Nothing herein contained shall, however, limit or prejudice
the right of Landlord to prove for and obtain as liquidated damages by reason of
any such termination an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings in which,
such damages are to be proved, whether or not such amount be greater than, equal
to, or less that the amount referred to above.
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52. Tenant
will have no right to remain in possession of all or any part of the demised
premises after the expiration of the term. If Tenant remains in possession of
all or any part of the demised premises after the end of the term, with the
express or implied consent of Landlord: (a) such tenancy will be deemed to be a
periodic tenancy from month-to-month only; (b) such tenancy for such
month-to-month period will not constitute a renewal or extension of this Lease
for any further term other than month-to-month; (c) such tenancy may be
terminated by Landlord upon the earlier of thirty (30) days prior written notice
or the earliest date permitted by law; (d) such tenancy may be terminated by
Tenant only upon at least thirty (30) days prior written notice to Landlord with
any such termination by Tenant to be effective only as of the last day of a
month, and any surrender on any other day of the month shall not relieve Tenant
of liability through the end of the month. In any such event, monthly
rent (the reasonable value of use and occupancy) will be increased to an amount
equal to one-twelfth (1/12th) of 150% of the sum of the Annual Base Rent plus
all additional rentals payable during last year of the term, and any other sums
due for additional rent under this Lease will be payable in the amount and at
the times specified in this Lease. Such month-to-month tenancy will be subject
to every other term, condition, and covenant contained in this Lease. Neither
the billing nor the collection of use and occupancy in the above amount shall be
deemed a waiver of any right of Landlord to collect damages for Tenant's failure
to vacate the demised premises after the expiration or sooner termination of
this Lease. The provisions of this Article shall survive the
expiration or sooner termination of this Lease.
53. Conditional
Limitation: In the event that twice in any twelve (12) month
period (A) a non-monetary default of the kind set forth in Article 17(1) shall
have occurred or (B) Tenant shall have defaulted in the payment of Annual Base
Rent or additional rent, or any part of either, and Landlord shall have
commenced a summary proceeding to dispossess Tenant in each such instance, then,
notwithstanding that such defaults may have been cured at any time after the
commencement of such summary proceeding, any further default by Tenant within
such twelve (12) month period shall be deemed to be a violation of a substantial
obligation of this lease by Tenant and Landlord may serve a written three (3)
days' notice of cancellation of this lease upon Tenant and, upon the expiration
of said three (3) days, this lease and the term shall end and expire as fully
and completely as if the expiration of such three (3) day period were the day
herein definitely fixed for the end and expiration of this lease and the term of
this lease and Tenant shall then quit and surrender the demised premises to
Landlord, but Tenant shall remain liable as elsewhere provided in this
lease.
54. A/C Maintenance:
Tenant shall, at its own cost and expense, operate, maintain, repair and replace
any existing air conditioning unit(s) located in and servicing the demised
premises. Such unit(s) shall be accepted by Tenant in "as is" condition and
surrendered to Landlord at the end of the term in good condition, ordinary wear
excepted.
55. Insurance: During the
term of this Lease and at all other times (if any) that Tenant has possession of
the demised premises, Tenant shall pay for and keep in force comprehensive
general liability policies with broad form endorsements and water damage legal
liability coverage against any and all liability occasioned by accident or
occurrence, such policies to be written by recognized and well-rated insurance
companies authorized to transact business in the State of New York, in the
minimum amounts of $2,000,000.00 for liability and $300,000.00 for property on a
per occurrence basis. Tenant shall obtain "All Risk" insurance having
extended coverage for fire and other casualties for its personal property,
fixtures and equipment for the full replacement value thereof and such insurance
policies, and any other property damage policies of Tenant, shall have an
appropriate clause or endorsement whereby the insurer waives subrogation or
consents to a waiver of the right of recovery against Landlord and Landlord's
agent, and, to the extent permitted by law, Tenant hereby agrees not to make any
claim against, or seek to recover from Landlord or Landlord's agent for any loss
or damage to property of the type covered by such insurance without regard to
whether Tenant's claims exceed the coverage limits of its insurance
policies. If the waiver and release set forth in the previous
sentence shall be prohibited by law, the liability of any party that would have
been released shall be secondary to the other's insurance. If at any
time during the term of this Lease it appears that public liability or property
damage limits in the City of New York for premises similarly situated, due
regard being given to the use and occupancy thereof, are higher than the
foregoing limits, then Tenant shall increase the foregoing limits
accordingly. Landlord and its agent(s), underlying lessor(s) and
mortgagee(s) shall be named as additional insureds in the aforesaid general
liability insurance policies. All policies shall provide that
Landlord shall be afforded thirty (30) days' prior notice of cancellation of
such insurance. Tenant shall deliver certificates of insurance
evidencing such policies prior to taking possession or the commencement of the
term of this Lease, whichever occurs first. All premiums and charges
for the aforesaid insurance shall be paid by Tenant and if Tenant shall fail to
make such payment when due, Landlord may pay it and the amount thereof shall be
repaid to Landlord by Tenant on demand and the amount thereof may, at the option
of Landlord be added to and become a part of the additional rent payable
hereunder. Tenant shall not violate or permit to be violated any
condition of any of said policies and Tenant shall perform and satisfy the
requirements of the companies writing such policies. If Tenant fails
to obtain or keep in effect any insurance policy required hereunder, Landlord
may obtain it for Tenant and pay the premiums required to keep it in effect at
Tenant’s expense with the payments so made to be due and payable as additional
rent.
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A.
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The
term "building standard" or “Building Standard” means work performed in
the manner and with the materials selected by Landlord as the standard for
the Building subject to availability and Landlord's right to select
equivalent alternative types, models, brands, grades, designs,
manufacturers and suppliers from time to time as the building
standard. “Landlord’s Work” (defined above) shall be done in a
building standard manner using building standard labor and
materials. Landlord’s Work shall be deemed to have been
substantially completed despite the existence of incomplete minor or
so-called punchlist items and incomplete items which can be finished
without material unreasonable interference with Tenant, or any items which
cannot, consistent with the dictates of sound construction practices, be
completed until performance of work permitted or required to be done by
Tenant. If Tenant wants Landlord to perform or supply any additional or
non-Building Standard work or installations (“Extra Work”) over and above,
or in lieu of Landlord’s Work to be done by Landlord described above,
Landlord may refuse such request for Extra Work. Any and all
costs incurred by Tenant (or by Landlord, at Tenant's request) for the
preparation, filing or approval of plans and specifications relating to
Extra Work shall be paid for by Tenant without regard to whether or not
Landlord agrees to do Extra Work. If Tenant fails to make any
agreed payment for Extra Work within five (5) days after it is due,
Landlord shall have the same remedies for such non-payment as it has for
non-payment of rent in addition to whatever other remedies are available
to Landlord. Anything contained herein or elsewhere in this Lease to the
contrary notwithstanding, if Landlord is delayed in substantial completion
of Landlord’s Work or there is any increase in Landlord’s cost for
Landlord’s Work as a result of: (i) Landlord's performance of
Extra Work, Tenant's request for materials, finishes, or installations
other than Landlord's Building Standard or Tenant’s failure to make its
selection from Landlord’s Building Standard selection; or (ii) the
performance or completion of any work or installations by a party employed
by Tenant, then, in such event, (a) Tenant shall be responsible for the
increase in Landlord’s cost for Landlord’s Work, and (b) if the term
and/or rent commencement dates of this Lease have been postponed by delays
caused by Tenant, the obligations of Tenant to pay Annual (Monthly) Base
Rent shall be advanced by the number of days of such
delays. Nothing contained herein shall relieve Tenant of its
obligations to repair, replace and maintain as necessary anything altered
or installed by or for Tenant as necessary to keep the same in good
working order and condition and in compliance with laws at Tenant’s
expense.
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B.
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"Extra
Work" as defined in paragraph A of this Article includes items that are an
"Upgrade" and items that are "Additional Work" as defined
below. The cost to be charged for Extra Work shall be
determined as follows:
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A.
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"Upgrades"
are items which represent a substitution for a Building Standard item, the
price of which shall be based on the difference between the "Landlord's
Cost" (defined below) for the Building Standard item and the Landlord's
Cost for the upgrade item, when the latter exceeds the
former. If the Landlord's Cost for an Upgrade is less than the
Landlord's Cost for the Building Standard item that it is being
substituted for, there will be no charge and no credit for the
Upgrade.
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B.
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"Additional
Work" are items representing additional items in excess of the scope of
Landlord's Work and the Landlord's Cost for the Additional Work shall be
the price for the Additional Work.
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C.
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As
used herein, "Landlord's Cost" means the total cost to Landlord for labor
and materials plus 10% thereof (for Landlord's overhead) and 10% of the
total cost plus overhead (for Landlord's
profit).
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57. Governmental
Regulations: Notwithstanding anything contained in the lease to the
contrary, if at any time during the term of this lease, Landlord expends any
sums for alterations or improvements to the Building which are required to be
made pursuant to any “Legal Requirement” (as hereinafter defined), Tenant shall
pay to Landlord, as additional rent, Tenant's Proportionate Share of such costs
within ten (10) days after demand therefor. For the purposes hereof: (i) the
cost of any alteration or improvement shall be deemed to include the cost of
labor and materials and the costs for preparing any necessary plans and the fees
for filing such plans; and (ii) the term "Legal Requirements" shall mean laws,
statutes and ordinances (including building codes and zoning regulations and
ordinances) and the orders, rules, regulations, directives and requirements of
all federal, state, county, city and borough departments, bureaus, boards,
agencies, offices, commissions and other subdivisions thereof, or of any
official thereof, or of any other governmental public or quasi-public authority,
whether now or hereafter in force, which may be applicable to the land and
improvements constituting the Building or the demised premises or any part
thereof, including the sidewalks, curbs or areas adjacent thereto and all
requirements, obligations and conditions of all instruments of
record.
58. This agreement shall be
a binding and enforceable contract from and after the date on which it has been
signed and delivered by both parties without regard to whether or
not the term of this lease and Tenant’s rights to occupy the demised
premises have commenced as of such date of full execution and delivery of
this instrument under the other provisions of this lease.
59. Limited Personal
Guaranty: It is a material inducement, consideration and condition to
Landlord entering into this Lease that the limited personal guaranty attached
hereto and made a part hereof be signed and delivered by the guarantor(s)
described therein without regard to the dates written or printed in the
documents (or the order in which the parties have signed this Lease and the
guarantor(s) have signed the limited personal guaranty), as the parties
acknowledge and agree that, anything contained in this Lease to the contrary
notwithstanding, Landlord will not deliver a fully executed original of this
Lease (signed by Landlord and Tenant) to Tenant until after Landlord has
received this Lease signed by Tenant, checks for the first month's rent and
security, and the limited personal guaranty signed by the
guarantor(s). It shall be a condition of the surrender instrument
described in the enclosed limited personal guaranty that the security deposit of
Tenant be forfeited, without relieving Tenant of any liability.
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EXHIBIT
“A”
The
demised premises
Not to
scale; all dimensions approximate; subject to actual conditions.
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Exhibit
"C"
PLAN
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