LANDLORD LEASE dated August 22, 1995, between 000 XXXX 00xx XXXXXX COMPANY
a New York partnership, having an office at 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, hereinafter referred to as "Landlord" or
"Lessor" and Xxxxxxxx'x Inc., of New York having its principal
place of business at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
TENANT hereinafter jointly severally and collectively referred to as
"Tenant" or "Lessee".
SPACE WITNESSETH: The Landlord DOES HEREBY LEASE to Tenant, and Tenant
DOES HEREBY TAKE from the Landlord, the space(s) designated Room
1710
TERM substantially as outlined in red on the plan(s) attached hereto,
on the Seventeenth RENT (17th) floor(s) of the building known as
000 XXXX 00 XXXXXX (hereinafter referred to as "the Building") in
the Borough of Manhattan, City, County and State of New York,
which space, together with all the fixtures and improvements
which, at the commencement of or during the term, are thereto
attached (except items not deemed to be included therein and
removable by Tenant as provided in Article 6 hereof) is
hereinafter referred to as "the premises" or the "demised
premises", SUBJECT to mortgages, and ground and underlying
leases, as hereinafter provided and UPON and SUBJECT to the
covenants, terms and conditions of this Lease, for a term to
commence on November 1, 1995, and to end on March 31, 2001,
unless terminated prior thereto in the manner hereinafter
provided, at the ANNUAL RENT of THREE HUNDRED AND EIGHTY SIX
THOUSAND, THREE HUNDRED FORTY AND 00/100 ($386,340.00) DOLLARS
FROM 11/1/95 to 9/30/98 and FOUR HUNDRED AND TWELVE THOUSAND, AND
NINETY SIX AND 00/100 ($412,096.00) DOLLARS FROM 10/1/98 TO
3/31/01, which Tenant agrees to pay in United States legal
tender, by cash or by good and sufficient check drawn on a New
York City Clearinghouse Bank, in equal monthly installments in
advance on the first day of each month during said term, at the
office of Landlord.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and
assigns, hereby covenant, as follows:
1. Tenant shall pay the rent and additional rent as above and as
hereinafter provided.
USE 2. Tenant shall use and occupy the premises for Showroom and
office for the sale at wholesale only and display of children's
wearing apparel and Design Room for manufacture of samples and
the premises shall be used for no other purpose by the Tenant or
any other person.
It is the express provision of this lease that the demised
premises are rented for showroom and office use only, and the
Tenant shall not do any manufacturing therein or retail sales
therefrom. The Tenant shall not in connection with its business
ship or receive merchandise at regular intervals in any
substantial quantity. This restriction includes the specific
prohibition against the use of any hand trucks or other wheeled
vehicles in the corridors on the floor adjacent to the demised
premises or in any other part of the building.
ASSIGNMENT 3. Tenant shall not assign, mortgage or encumber this agreement,
nor underlet, or AND use, suffer or permit the premises or any
part hereof to be used by others, without the prior UNDERLETTING
written consent of Landlord in each instance. The acceptance of
rent from the Tenant after possession is obtained by anyone other
than the Tenant shall not constitute a waiver of the provisions
hereof. The listing of any name other than that of the Tenant
whether on the doors of the premises or on the building
directory, or otherwise, shall not operate to vest any right or
interest in this lease or in the premises or be deemed to be the
written consent of the Landlord mentioned in this Article. It
being expressly understood that any such listing is a privilege
extended by the Landlord revocable at will by written notice to
the Tenant. If this Lease be assigned, or if the premises or any
part thereof by underlet or occupied by anybody other than
Tenant, Landlord may, after default by Tenant, collect rent from
the assignee, under-tenant or occupant, and apply the net amount
collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, under-tenant or
occupant as tenant or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or
underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any
further assignment or underletting. In no event shall any
permitted sublessee assign or encumber its sublease or further
sublet all or any portion of its sublet space, or otherwise
suffer or permit to sublet space or any part thereof to be used
or occupied by others, without Landlord's prior written consent
in each instance. A modification, amendment or extension of a
sublease shall be deemed a sublease.
OBSTRUCTIONS 4. The Tenant shall not obstruct or permit the obstruction of the
SIGNS light, halls, areas, roof, stairways stairway or entrances to
the building, and will not affix, erect or inscribe any signs,
projections, awnings, signals or advertisements of any kind to
any part of the premises including the inside or outside of the
windows or doors thereof and will not paint the outside of the
doors thereof or the inside or outside of the windows thereof
unless and until the style, size, color, construction and
location thereof have been approved in writing by the Landlord.
The Landlord shall have the right to withdraw such approval at
any time and to require the Tenant to remove any such signs,
projections, awnings, signals or advertisements. The Landlord
also reserves to itself the sole right to designate the person,
firm or corporation which shall do the work of lettering and
erecting of any and all signs to be affixed to the premises or
the building. In the event that said work is done by the Tenant
through any person, firm or corporation, other than that
designated by the Landlord, the Landlord is hereby given the
right to remove said signs without being liable to the Tenant by
reason thereof and to charge the cost of so doing to the Tenant
as additional rent payable on the first day of the next following
month, or at Landlord's option, on the first day of any
subsequent month.
ALTERATIONS 5. Tenant shall make no alterations, decorations, additions or
LIENS improvements in or to the demised premises without Landlord's
prior written consent, and then only by contractors or mechanics
approved by Landlord. All such work shall be done at such times
and in such manner as Landlord may designate. All work done or
required to be done by Tenant shall be done with union labor
having the proper jurisdictional qualifications and shall comply
in all respects and at all times with all applicable laws and
governmental regulations and the orders of any organizations
having or asserting jurisdiction in the premises.
(a) Any mechanic's lien filed against the demised premises, or
the building of which the same form a part for work claimed to
have been done for, or materials claimed to have been furnished
to, Tenant, shall be discharged by Tenant within ten (10) days
thereafter, by payment in full or, at Tenant's expense, by filing
the bond required by law. If Tenant fails to so pay or file any
bond, Landlord may pay the amount of said lien or discharge the
same by deposit, or otherwise, billing tenant for all expenses in
connection therewith as additional rent.
(b) Nothing in this lease contained shall be deemed or construed
in any way as constituting the consent or request of Landlord,
express or implied by inference or otherwise, to any contractor,
sub-contractor, laborer or materialman and architects, engineers
and designers for the performance of any labor or the furnishing
of any materials for any specific improvement, alteration to, or
repair of the demised premises, or any part thereof, or for the
demolition or replacement of the demised premises or any part
thereof.
(c) Tenant agrees to obtain and deliver to Landlord, written and
unconditional waivers of liens (and agreement that its filed
plans may be replaced), for all plans, specifications and
drawings for work or materials to be furnished to Tenant at the
premises, signed by all architects, engineers and designers to
become involved in such work for Tenant; with respect to
contractors, subcontractors, materialmen and laborers, and all
work or materials to be furnished to Tenant at the premises.
Tenant agrees to obtain and deliver to Landlord written and
unconditional waivers of mechanics liens upon the premises or the
building after payments to the contractors, and subject to any
applicable provisions of the Lien Law.
(d) Prior to commencement of its work in the demised premises,
Tenant shall obtain and deliver to Landlord a written letter of
authorization, in form satisfactory to Landlord's counsel, signed
by architects, engineers and designers to become involved in such
work, which shall confirm that any of their drawings or plans are
to be removed from any filing with governmental authorities, on
request of Landlord(s), in the event that said architect,
engineer, surveyor or designer thereafter no longer is providing
services with respect to the demised premises.
FIXTURES 6. All fixtures, equipment, improvements and appurtenances
attached to, or built into, the space herein demised at the
commencement of or during the term, whether by the Landlord at
its own expense or at the expense of the Tenant, or by the
Tenant, shall be and remain part of the premises and shall not be
removed by the Tenant at the end of the term, unless Landlord
shall elect otherwise, which election shall be made by giving
notice pursuant to the provisions of Article 35 not less than
thirty (30) days prior to the expiration or other termination of
this lease or any renewal or extension thereof. In the event the
Landlord shall elect otherwise, then such fixtures, equipment and
appurtenances as the Landlord shall select, shall be removed by
the Tenant and Tenant shall restore the demised premises to the
original condition, at its own cost and expense prior to the
expiration of the term of this lease. All electric, plumbing,
heating, sprinkling, telephone, telegraph, communication and
radio systems, fixtures and outlets, venetian blinds, partitions,
railings, gates, doors, vaults, panelling, molding, shelving,
radiator enclosures, corks, rubber, linoleum and composition
floors, ventilating, silencing, air-conditioning and cooling
equipment, shall be deemed to be included in such fixtures,
equipment, improvements and appurtenances. Where not built into
the space and if furnished by or at the expense of the Tenant,
all removable electric fixtures, carpets, wind deflectors,
electric fans, water coolers, furniture, trade fixtures and
business equipment shall not be deemed to be included in such
fixtures, equipment, improvements and appurtenances, and shall be
removed by Tenant and Tenant shall pay the cost of repairing any
damage to the premises or the building arising from such removal.
All the outside walls of the premises, including corridor walls
and the outside entrance doors to the premises, any balconies,
terraces or roofs adjacent to the premises, and any space in the
premises used for shafts, stacks, pipes, conduits, ducts or other
building facilities and the use thereof, as well as access
thereto in and through the premises for the purpose of operation,
maintenance, decoration and repair, are expressly reserved to the
Landlord, and the Landlord has not conveyed any rights to the
Tenant therein.
REPAIRS 7. Tenant shall take good care of the premises and fixtures
therein and, subject to provisions of Article 5 hereof shall
make, as and when needed, as a result of misuse or neglect by
Tenant or Tenant's servants, employees, agents, visitors or
licensees all repairs in and about demised premises necessary to
preserve them in good order and condition, which repairs shall be
in quality and class equal to the original work. However,
Landlord may repair, at the expense of Tenant, all damage or
injury to demised premises, or to the building, or to its
fixtures, appurtenances or equipment, done by Tenant or Tenant's
servants, employees, agents, visitors or licensees, or caused by
moving property of Tenant in or out of the building or by
installation or removal of furniture or other property, or
resulting from fire, air-conditioning unit or system short
circuits, overflow or leakage of water, steam, illuminating gas,
sewer gas, sewage or odors, or by frost or by bursting or leaking
of pipes or plumbing works, or gas, or from any other cause, due
to the carelessness, negligence, or improper conduct of Tenant,
or Tenant's servants, employees, agents, visitors or licensees.
Except as provided in Article 13 hereof, there shall be no
allowance to Tenant for a diminution of rental value, and no
liability on the part of Landlord by reason of inconvenience,
annoyance or injury to person(s), property or business arising
from the making of any repairs, alterations, additions or
improvements in or to any portion of the building or the
premises, or in or to fixtures, appurtenances or equipment, nor
shall there be any liability upon the Landlord for failure to
make any repairs, alterations, additions or improvements in or to
any portion of the building or demised premises, or in or to
fixtures, appurtenances or equipment.
WINDOW
CLEANING 8. Tenant shall require every person engaged by him to clean any
window in the premises from the outside, to use the equipment and
safety devices required by Section 202 of the Labor Law and the
rules of any governmental authority having or asserting
jurisdiction.
REQUIREMENT OF
LAW FIRE
INSURANCE 9. Tenant at its expense shall comply with all laws, orders and
regulations of any INSURANCE governmental authority having or
asserting jurisdiction over the premises, which shall impose any
violation, order or duty upon Landlord or Tenant with respect to
the premises or the use or occupancy thereof, including, without
limitation, compliance in the premises with New York City Local
Law No. 5 or any similar law. The foregoing shall not require the
Tenant to do structural work. Tenant shall not do or permit to be
done, any act or thing upon said premises, which will invalidate
or be in conflict with fire insurance policies covering the
building, and fixtures and property therein, and shall not do or
permit to be done, any act or thing upon said premises which
shall or might subject the Landlord to any liability or
responsibility for injury to any person or persons or to any
property by reason of any business or operation being carried on
upon said premises; and shall comply with all rules, orders,
regulations or requirements of the New York Board of Fire
Underwriters, or any other similar body, and shall not do, or
permit anything to be done, in or upon said premises, or bring or
keep anything therein, which shall increase the rate of fire
insurance on the building or on property located therein. If by
reason of failure of Tenant to comply with the provisions hereof,
or if by reason of the nature of the Tenant's occupancy, the fire
insurance rate shall at any time be higher than it otherwise
would be, then Tenant shall reimburse Landlord, as additional
rent hereunder, for that part of all fire insurance premiums
thereafter paid by Landlord, which shall have been charged
because of such violation or because of such occupancy by Tenant
and shall make such reimbursement upon the first day of the month
following such outlay by Landlord. That the premises are being
used for the purposes set forth in Article 2 hereof shall not
relieve Tenant from the foregoing duties, obligations and
expenses. In any action or proceeding wherein Landlord and Tenant
are parties, a schedule or "make up" of rate for the building or
the premises issued by the New York Fire Insurance Exchange, or
other body making fire insurance rates for said premises, shall
be conclusive evidence of the facts therein stated and of the
several items and charges in the fire insurance rate then
applicable to said premises.
SUBORDINATION 10. This lease is and shall remain subject and subordinate to all
ground or underlying leases, and mortgages and building loan
mortgages which may now or hereafter affect the real property of
which the demises premises form a part, or such leases as to
which this lease is subordinate, and including but not limited to
mortgages affecting any of said ground or underlying leases,
whether or not said leases or mortgages also affect other
premises, and each and every of the advances which have
heretofore been made or which may hereafter be made thereunder,
and to all renewals, modifications, consolidations, replacements
and extensions thereof. In confirmation of such subordination,
Tenant shall execute promptly any instruments or certificates
that Landlord may request. Tenant hereby irrevocably constitutes
and appoints Landlord the Tenant's attorney-in-fact to execute
any such instruments or certificates for and on behalf of Tenant.
This clause shall be self-operative.
RULES AND
REGULATIONS 11. Tenant and Tenant's servants, employees, agents, visitors or
licensees shall-faithfully comply with the Rules and Regulations
attached to and made a part of this lease, and with such further
reasonable Rules and Regulations as Landlord at any time may make
and communicate in writing to Tenant, which, in the Landlord's
judgment, shall be necessary for the reputation, safety, care or
appearance of the building, or the preservation of good order
therein, or the operation or maintenance of the building, its
equipment, or the more useful occupance or the comfort of the
Tenants or others in the building. Landlord shall not be liable
to Tenant for the violation of any of said Rules and Regulations,
or the breach of any covenant or condition in any lease by any
other tenant in the building, or for any failure to enforce said
Rules and Regulations.
PROPERTY LOSS,
LIABILITY 12. Landlord or Landlord's agents shall not be liable for any
damage to property entrusted to employees of the building nor for
the loss of any property by theft or otherwise. Landlord or
Landlord's agents shall not be liable for any injury or damage to
persons or property resulting from falling plaster, steam, gas,
electricity, water, rain or snow which may leak from any part of
said building or from the pipes, appliances or plumbing works of
the same or from the street or sub-surface or from any other
place or by dampness or any other cause of whatsoever nature,
unless caused by or due to the negligence of Landlord; nor shall
Landlord be liable for any such damage caused by other tenants or
persons in said building, or for interference with the light or
other incorporeal hereditaments, or caused by operations in
construction of any public or quasi public work; nor shall
Landlord be liable for any latent defect in the building. Tenant
shall reimburse Landlord as additional rent for all expenses,
damages or fines incurred or suffered by Landlord by reason of
any breach, violation or nonperformance by Tenant, or Tenant's
servants, employees, agents, visitors or licensees. Tenant agrees
to look solely to Landlord's estate and interest in the land and
building, or the lease of the building or of the land and
building, and the demised premises, for the satisfaction of any
right or remedy of Tenant for the collection of a judgment (or
other judicial process) requiring the payment of money by
Landlord, in the event of any liability by Landlord, and no other
property or assets of Landlord 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 or landlord and tenant hereunder, or Tenant's use
and occupancy of the demises premises or any other liability of
Landlord to Tenant (except for negligence).
DESTRUCTION
FIRE OR OTHER
CAUSE 13. If the demised premises shall be partially damaged by fire or
other cause without the fault or neglect of Tenant, Tenant's
servants, employees, agents, visitors or licensees, the damages
shall be repaired by and at the expense of Landlord and the rent
until such repairs shall be made shall be apportioned according
to that part of the premises which is usable by Tenant. No
penalty shall accrue for reasonable delay with may arise by
reason of adjustment of fire insurance on the part of Landlord
and/or Tenant, and for reasonable delay on account of "labor
troubles", or any other cause beyond Landlord's control. But if
the demised premises are totally damaged or are rendered wholly
untenantable by fire or other cause, and the Landlord shall
decide not to rebuild the same, or if the building of which the
demised premises are a part shall be so damaged that Landlord
shall decide to demolish it or to rebuild it, then or in any of
such events Landlord may, within ninety (90) days after such fire
or other cause, give Tenant a notice in writing of such decision,
which notice shall be given as in Article 35 hereof provided, and
thereupon the term of this lease shall expire by lapse of time
upon the third day after such notice is given, and Tenant shall
vacate the demised premises and surrender the same to Landlord.
EMINENT DOMAIN 14. If the whole or any part of demised premises shall be taken
or condemned by any competent authority 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 when the possession
of the part so taken shall be required for such use or purpose,
and without apportionment of the award. The current rental,
however, shall in any such case be apportioned. The Tenant shall
not be entitled to any part of the award as damages or otherwise
for such condemnation and the Landlord is to receive the full
amount of such award, the Tenant hereby expressly waiving any
right or claim to any part thereof.
ELEVATORS,
HEAT, CLEANING 15. As long as Tenant is not in default under any of the
covenants of this Lease, Landlord shall, if and insofar as the
existing facilities provide: (a) at Landlord's expense run
elevators on business days from 8 A.M. to 6 P.M. and in addition
on Saturdays from 8 A.M. to 1 P.M. and also provide one elevator
which will be subject to call during all other hours on business
days, Saturdays, Sundays and holidays; (b) at Landlord's expense
furnish on business days from 8 A.M. to 6 P.M. and on Saturdays
from 8 A.M. to 1 P.M. heat to warm the demised premises when and
as required by law; (c) at Landlord's expense cause to be kept
clean the halls, corridors and public portions of the building,
which are used in common by all tenants. Tenant shall, at
Tenant's expense, keep the demised premises clean and in order,
to the satisfaction of Landlord, and remove its own rubbish.
Landlord has the sole right to designate and appoint the person
or concern to be employed, at Tenant's expense, for the removal
of Tenant's refuse and rubbish from the building. Landlord
reserves the right to stop service of the heat, elevator, air
conditioning, cooling, plumbing and electric systems, when
necessary, by reason of accident, or of repairs, alterations or
improvements, in the judgment of Landlord desirable or necessary
to be made, until said repairs, alterations or improvements shall
have been completed, and shall further have no responsibility or
liability for failure to supply heat, elevator, plumbing, air
conditioning, cooling and electric service, when prevented from
so doing by strikes or accidents or by any cause beyond
Landlord's reasonable control, or by orders or regulations of any
federal, state, county or municipal authority, or failure of
coal, oil or other suitable fuel. It is expressly understood and
agreed that any covenants on Landlord's part to furnish any
service pursuant to any of the terms or provisions of this lease,
or to perform any act or thing for the benefit of Tenant shall
not be deemed breached if Landlord is unable to perform the same
by virtue of a strike or labor trouble or any other cause
whatsoever beyond Landlord's control, and Tenant agrees that
there shall be no abatement of rent in the event that any of said
systems or service should fail to function for the reasons above
set forth.
WATER 16. The Landlord shall have the right to install a separate water
meter for the demised premises. If a separate water meter be
installed for the demised premises, or any part thereof, the
Tenant shall keep the same in repair, and pay the charges made by
the municipality for or in respect to the consumption of water,
as and when bills therefor are rendered. If the demised premises
or any part thereof, be supplied with water through a meter which
supplies other parts of the building, the Tenant shall pay to the
Landlord, as and when bills are rendered therefor, the Tenant's
proportionate part of all charges which the municipality shall
make for all water consumed through said meter, as indicated by
said meter together with the sewer rental based on said meter
charges. Such proportionate part shall be fixed by apportioning
the respective charge according to floor area against all of the
floor area in the building to which water charges through any
such meter is furnished (exclusive of the basement) which shall
have been occupied during the period of respective charges,
taking into account the period that each part of such area was
occupied. A water xxxx submitted by any public authority shall be
conclusive evidence of the amount due and the basis of
calculation of the amount to be paid by the Tenant under the
provisions of this paragraph. If any xxxx for water supply is not
paid by the Tenant when due, the Landlord may discontinue the
water supply upon twelve (12) hours written notice to the Tenant.
All bills for water shall be deemed conclusive as to amount
within ten (10) days after such bills are rendered.
ELECTRICITY 17. Lessee agrees that Lessor may furnish to Lessee on a
"submetering" basis or on a "rent inclusion" basis.
(a) Submetering: If and so long as Lessor provides electricity to
the demised premises on a submetering basis, Lessee covenants and
agrees to purchase the same from Lessor or Lessor's designated
agent at charges, terms and rates set, from time to time, during
the term of this lease by Lessor but not more than those
specified in the service classification in effect on January 1,
1970 pursuant to which Lessor then purchased electric current
from the public utility corporation serving the part of the city
where the building is located; provided, however, said charges
shall be increased in the same percentage as any percentage
increase in the billing to Lessor for electricity for the entire
building, by reason of increase in Lessor's electric rates or
service classifications, subsequent to January 1, 1970, and so as
to reflect any increase in Lessor's electric charges, fuel
adjustment, or by taxes or charges of any kind imposed on
Lessor's electricity purchases, or for any other such reason,
subsequent to said date. Any such percentage increase in Lessor's
billing for electricity due to changes in rates or service
classifications shall be computed by the application of the
average consumption (energy and demand) of electricity for the
entire building for the twelve (12) full months immediately prior
to the rate and/or service classification change, or any changed
methods of or rules on billing for same, on a consistent basis to
the new rate and/or service classification and to the service
classification in effect on January 1, 1970. If the average
consumption of electricity for the entire building for said prior
twelve (12) months cannot reasonably be applied and used with
respect to changed methods of or rules on billing, then the
percentage increase shall be computed by the use of the average
consumption (energy and demand) for the entire building for the
first three (3) months after such change, projected to a full
twelve (12) months; and that same consumption, so projected,
shall be applied to the service classification in effect on
January 1, 1970. Where more than one meter measures the service
of Lessee in the building, the service rendered through each
meter may be computed and billed separately in accordance with
the rates herein. Bills therefor shall be rendered at such times
as Lessor may elect and the amount, as computed from a meter,
shall be deemed to be, and be paid as, additional rent. In the
event that such bills are not paid within five (5) days after the
same are rendered, Lessor may, without further notice,
discontinue the service of electric current to the demised
premises without releasing Lessee from any liability under this
lease and without Lessor or Lessor's agent incurring any
liability for any damage or loss sustained by Lessee by such
discontinuance of service. If any tax is imposed upon Lessor's
receipt from the sale or resale of electrical energy or gas or
telephone service to Lessee by any Federal, State or Municipal
Authority, Lessee covenants and agrees that where permitted by
law, Lessee's pro-rata share of such taxes shall be passed on to,
and included in the xxxx of, and paid by, Lessee to Lessor.
(b) Rent Inclusion: If and so long as Lessor provides electricity
to the demised premises on a rent inclusion basis, Lessee agrees
that the fixed annual rent shall be increased by the amount of
the Electricity Rent Inclusion Factor ("ERIF"), as hereinafter
defined, Lessee acknowledges and agrees (i) that the fixed annual
rent hereinabove set forth in this lease does not yet, but is to
include an ERIF or $2.95 per rentable square foot to compensate
Lessor for electrical wiring and other installations necessary
for, and for its obtaining and making available to Lessee the
redistribution of, electric current as an additional service; and
(ii) that said ERIF, which shall be subject to periodic
adjustments as hereinafter provided, has been partially based
upon an estimate of the Lessee's connected electrical load, which
shall be deemed to be the demand (KW), and hours of use thereof,
which shall be deemed to be the energy (KWH) for ordinary
lighting and light office equipment and the operation of the
usual small business machines, including Xerox or other copying
machines (such lighting and equipment are hereinafter called
"Ordinary Equipment") during ordinary business hours ("ordinary
business hours" shall be deemed to mean 50 hours per week), with
Lessor providing an average connected load of 4-1/2 xxxxx of
electricity for all purposes per rentable square foot. Any
installation and use of equipment other than Ordinary Equipment
and/or any connected load and/or any connected load and/or any
energy usage by Lessee in excess of the foregoing shall result in
adjustment of the ERIF as hereinafter provided. For purposes of
this lease the rentable square foot area of the presently demised
premises shall be deemed to be 12,878 square feet.
If the cost to Lessor of electricity shall have been, or shall
be, increased or decreased subsequent to May 1, 1993 (whether
such change occurs prior to or during the term of this lease), by
change in Lessor's electric rates or service classifications, or
by any increase, subsequent to the last such electric rate or
service classification change, in fuel adjustments or charges of
any kind, or by taxes, imposed on Lessor's electricity purchases,
or for any other such reason, then the ERIF, which is a portion
of the fixed annual rent, shall be changed in the same percentage
as any such changes in cost due to changes in electric rates or
service classifications, and, also, Lessee's payment obligation,
for electricity redistribution, shall change from time to time so
as to reflect any such increase in fuel adjustments or charges,
and taxes. Any such percentage change in Lessor's cost due to
changes in electric rates or service classifications shall be
computed by the application of the average consumption (energy
and demand) of electricity for the entire building for the twelve
(12) full months immediately prior to the rate and/or service
classification change, or any changed methods of or rules on
billing for same, on a consistent basis to the new rate and/or
service classification change, and to the immediately prior
existing rate and/or service classifications. If the average
consumption of electricity for the entire building for said prior
(12) months cannot reasonably be applied and used with respect to
changed methods of or rules on billing, then the percentage
increase shall be computed by the use of the average consumption
(energy and demand) for the entire building for the first three
(3) months after such change, projected to a full twelve (12)
months, so as to reflect the different seasons; and the same
consumption, so projected, shall be applied to the rate and/or
service classification which existed immediately prior to the
change.
The parties agree that a reputable, independent consultant,
selected by Lessor ("Lessor's electrical consultant"), shall
determine the percentage change for the changes in the ERIF due
to Lessor's changed costs, and that Lessor's electrical
consultant may from time to time make surveys in the demised
premises of the electrical equipment and fixtures and the use of
current, (i) If any such survey shall reflect a connected load in
the demised premises in excess of 4-1/2 xxxxx of electricity for
all purposes per rentable square foot and/or energy usage in
excess of ordinary business hours (each such excess is
hereinafter called "excess electricity") then the connected load
and/or the hours of use portion(s) of the then existing ERIF
shall each be increased by an amount which is equal to a fraction
of the then existing ERIF, the numerator of which is the excess
electricity (i.e. excess connected load and/or excess usage) and
the denominator of which is the connected load and/or the energy
usage which was the basis for the computation of the then
existing ERIF. Such fractions shall be determined by Lessor's
electrical consultant. The fixed annual rent shall then be
appropriately adjusted, effective as of the date of any such
change in connected load and/or usage, as disclosed by said
survey, (ii) If such survey shall disclose installation and use
of other than Ordinary Equipment, then effective as of the date
of said survey, there shall be added to the ERIF portion of the
fixed annual rent (computed and fixed as hereinabove described)
an additional amount equal to what would be paid according to the
rate schedule currently in effect for the building during peak
hours of the business day under the SC-4 Rate I Service
Classification in effect on May 1, 1993 (and not the time-of-day
rate schedule) for such load and usage of electricity, with the
connected load deemed to be the demand (KW) and the hours of use
thereof deemed to be the energy (KWH), as hereinbefore provided,
(which addition to the ERIF shall be increased or decreased by
all electricity cost changes of Lessor, as hereinabove provided,
from May 1, 1993 through the date of billing).
In no event, whether because of surveys or for any other reason,
is the originally specified $2.95 per rentable square foot ERIF
portion of the fixed annual rent (plus any net income thereof,
but not decrease, by virtue of all electric rate or service
classification changes subsequent to May 1, 1993) to be reduced.
(c) General Conditions: The determinations by Lessor's electrical
consultant shall be binding and conclusive on Lessor and on
Lessee from and after the delivery of copies of such
determinations to Lessor and Lessee, unless, within fifteen (15)
days after delivery thereof, Lessee disputes such determination.
If Lessee so disputes the determination, it shall, at its own
expense, obtain from a reputable, independent electrical
consultant its own determinations in accordance with the
provisions of this Article, Lessee's consultant and Lessor's
consultant then shall seek to agree. If they cannot agree within
thirty (30) days they shall choose a third reputable electrical
consultant, whose cost shall be shared equally by the parties, to
make similar determinations which shall be controlling. (If they
cannot agree on such third consultant within (10) days, then
either party may apply to the Supreme Court in the County of New
York for such appointment). However, pending such controlling
determinations, Lessee shall pay to Lessor the amount of
additional rent or ERIF in accordance with the determinations of
Lessor's electrical consultant. If the controlling determinations
differ from Lessor's electrical consultant, then the parties
shall promptly make adjustment for any deficiency owed by Lessor
or overage paid by Lessee.
Lessor shall not be liable to Lessee for any loss or damage or
expense which Lessee may sustain or incur if either the quantity
or character of electric service is changed or is no longer
available or suitable for Lessee's requirements. Lessee covenants
and agrees that at all times its use of electric current shall
never exceed the capacity of existing feeders to the building or
the risers or wiring installation Lessor shall assure Lessee that
sufficient quantity exists for Lessee's needs as of this date;
such minimum quantity shall remain available for lease term.
Lessee agrees not to connect any additional electrical equipment
to the building electric distribution system, other than lamps,
typewriters and other small office machines which consume
comparable amounts of electricity, without Lessor's prior written
consent, which consent shall not be unreasonably withheld. Any
riser or risers to supply Lessee's electrical requirements, upon
written request of Lessee, will be installed by Lessor, at the
sole cost and expense of Lessee, if, in Lessor's sole judgment,
the same are necessary and will not cause permanent damage or
injury to the building or demised premises or cause or create a
dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants. In addition to the
installation of such riser or risers, Lessor will also at the
sole cost and expense of Lessee, install all other equipment
proper and necessary in connection therewith subject to the
aforesaid terms and conditions. The parties acknowledge that they
understand that it is anticipated that electric rates, charges,
etc. may be changed by virtue of time-of-day rates or other
methods of billing, and that the references in the foregoing two
paragraphs to changes in methods of or rules on billing are
intended to include any such changes. Supplementing Article 42
hereof, if all or part of the submetering additional rent or the
ERIF payable in accordance with Subdivision (a) or (b) of this
Article becomes uncollectible or reduced or refunded by virtue of
any law, order or regulation, the parties agree that, at Lessor's
option, in lieu of submetering additional rent or ERIF, and in
consideration of Lessee's use of the building's electrical
distribution system and receipt of redistributed electricity and
payment by Lessor of consultants' fees and other redistribution
costs, the fixed annual rental rate(s) to be paid under this
Lease shall be increased by an "alternative charge" which shall
be a sum equal to $2.95 per year per rentalable sq. ft. of the
demised premises, changed in the same percentage as any changes
in the cost of Lessor for electricity for the entire building
subsequent to May 1, 1993, because of electric rate or service
classification changes, as in Subdivision (b) hereof provided,
and such percentage change to be computed as in Subdivision (b)
provided. The Lessor reserves the right, at any time upon thirty
(30) days' written notice to change its furnishing of electricity
to Lessee from a rent inclusion basis to a submetering basis, or
vise versa provided that at the same time the change is made to a
majority of the existing Tenants. The Lessor reserves the right
to terminate the furnishing of electricity on a rent inclusion,
submetering, or any other basis at any time, upon thirty (30)
days' written notice to the Lessee in no event shall service be
terminated prior to provision of similar service by the public
utility, in which event the Lessee may make application directly
to the public utility for the Lessee's entire separate supply of
electric current and Lessor shall permit its wires and conduits,
to the extent available and safely capable, to be used for such
purpose. Any meters, risers or other equipment or connections
necessary to furnish electricity on a submetering basis or to
enable Lessee to obtain electric current directly from such
utility shall be installed at Lessee's sole cost and expense.
Only rigid conduit or electricity metal tubing (EMT) will be
allowed. The Lessor, upon the expiration of the aforesaid thirty
(30) days' written notice to the Lessee may discontinue
furnishing the electric current but this lease shall otherwise
remain in full force and effect. If Lessee was provided
electricity on a rent inclusion basis when it was so
discontinued, then commencing when Lessee receives such direct
service and as long as Lessee shall continue to receive such
service, the fixed annual rental rate payable under this lease
shall be reduced by the amount of the ERIF which was payable
immediately prior to such discontinuance of electricity on a rent
inclusion basis.
AIR 18. (a) The Landlord has installed within the building of which
CONDITIONING the demised premises are a part, machinery, appliances, equipment
COOLING and appurtenances for the operation and maintenance of a modern
peripheral air-conditioning system which when supplemented with
the ducts and booster units required to be installed by the
tenant for the interior spaces as set forth in paragraph "b"
hereof, will, during the summer time, when the outside
temperatures is 95 degrees, maintain inside the building a
temperature of approximately 10 degrees less and a
proportionately less difference of temperature between the inside
and outside, as the outside temperature falls to 73 degrees
Fahrenheit. It will also maintain an inside temperature of
approximately 70 degrees Fahrenheit in the winter time when the
outside temperature is zero degrees Fahrenheit.
(b) The Landlord has provided main cooling system units at the
windows which service the peripheral area. The Landlord will also
install two main ducts on all floors of the building and the
Tenant agrees at his or its own sole costs and expense to install
and connect his or its own necessary ducts and booster units to
air condition the interior portion of the demised premises
hereunder. The Tenant shall not, however, make such
installation(s) and connection(s) unless it first submits plans
and specifications therefor to the Landlord and the Landlord or
its engineers have approved in advance such plans and
specifications in writing.
It is expressly agreed by the Tenant that in order for the system
to function properly, the Tenant is obliged to, and the Tenant
agrees to, keep all windows in the premises closed.
Subject always to events and causes, physical, mechanical and
otherwise, beyond the reasonable control of the Landlord, for the
failure of which the Landlord shall not be liable in any event
whatever, the Landlord will service and maintain said
air-conditioning system in such manner as to provide
air-conditioning for the premises on business days generally
during the hours of 8 A.M. to 6 P.M. during the summer.
Any damage caused to said appliances, equipment or appurtenances
shall be repaired by the Landlord at the cost and expense of the
Tenant. Any such expense shall constitute additional rent.
ACCESS TO
PREMISES 19. (a) Tenant shall permit Landlord to erect, use and maintain,
pipes and conduits PREMISES in and through the demised premises
provided that Tenant's space is not materially diminished.
Landlord's agents shall have the right to enter the demised
premises at all times with reasonable notice to Tenant except in
case of emergency to examine the same, to show them to
prospective purchasers or lessees of the building, and to make
such decorations, repairs, alterations, improvements or additions
as Landlord may deem necessary or desirable either to the
building or to the demised premises and Landlord shall be allowed
to take all material into and upon said premises that may be
required therefore without the same constituting an eviction of
Tenant in whole or in part and the rent reserved shall in no wise
xxxxx while said decorations, repairs, alterations, improvements,
or additions are being made, by reason of loss or interruption of
the business of Tenant because of the prosecution of any such
work, or otherwise.
(b) The Tenant shall give prompt notice to the Landlord of any
fire, accident to, or defective condition in any part of the
demised premises, including but not limited to the sanitary,
electrical, heating, air conditioning, cooling and other systems
located in, or passing through the premises, and the damage or
defective condition shall be remedied by the Landlord with due
diligence, but if said damage or defective condition was caused
by the Tenant or by the employees, licensees or invitees of the
Tenant or if the system was installed for the particular use of
the Tenant and the damage or defective condition was not caused
by the negligence of the Landlord, the cost of the remedy thereof
shall be paid by the Tenant.
(c) During the six months prior to the expiration of the term of
this lease, Landlord may exhibit the premises to prospective
tenants at all reasonable hours.
(d) If, during the last month of the Term, Tenant shall have
removed all or substantially all of Tenant's property from the
premises, Landlord may immediately enter and alter, renovate and
decorate the premises, or any part thereof, without affecting
this lease, and without liability to Tenant for an abatement of
rent or other compensation.
(e) Landlord may permit access to the premises, without incurring
liability to the Tenant, and whether or not the Tenant shall be
present, upon demand of any receiver, trustee, assignee for the
benefit of creditors, sheriff, marshal, court officer or
government official entitled to, or reasonably purporting to be
entitled to such access for the purpose of taking possession of
or removing Tenant's property or for any other lawful purpose.
This provision and any action by the Landlord hereunder shall not
be deemed a recognition by Landlord that the person or official
making such demand has any right or interest in or to this lease
or in or to the premises.
(f) Landlord shall have the right to change the arrangement,
and/or location of entrances or passageways, doors and doorways,
and corridors, elevators, stairs, toilets, or other public parts
of the building, and, after reasonable notice, to change the
name, number or designation by which the building is commonly
known. Nothing herein contained, however, shall be deemed or
construed to impose upon Landlord any obligation, responsibility
or liability whatsoever for the care, supervision or repair of
the building or any part thereof, unless herein otherwise
provided.
(g) In the event of a refusal by the Tenant to permit an entry
upon the premises as in this Article provided, the Landlord and
the Landlord's agents may forcibly enter the same nevertheless
without incurring any liability by reason thereof.
20. The Tenant shall repair, at its own expense, all damage or
destruction of any plate glass in the demised premises, and shall
maintain adequate plate glass insurance at its own expense for
the benefit of the Landlord. If the Tenant fails to repair the
damage of any plate glass on the demised premises, or fails or
refuses to maintain adequate plate glass insurance for the
benefit of the Landlord, then the Landlord may repairs in damage
or destruction or may insure the plate glass and charge the cost
of such repairing or the cost of premium for the plate glass
insurance to the Tenant, and the amount thereof shall be deemed
to be, and be paid, as additional rent.
21. No vaults, vault space or space not within the property line
of the building is leased hereunder, anything contained in or
indicated on any sketch, blueprint or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Landlord
makes no representations as to the location of the property line
of the building. All vaults and vault space and all space not
within 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 be curtailed by any federal, state or
municipal authority, Landlord 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 or
curtainment be deemed a constructive or actual, total or partial
eviction. Tenant shall pay any fees, taxes, or charges of any
governmental authority for such vault space used by tenant.
CERTIFICATE OF
OCCUPANCY 22. Tenant will not at any time use or occupy the premises in
violation of the certificate of occupancy issued for the
building, and in the event that any department of the City or
State of New York shall hereafter at any time contend that the
premises are used for a purpose which is a violation of such
certificate of occupancy, in that event Tenant shall, upon 5
days' written notice from Landlord, immediately discontinue such
use of said premises. Failure by Tenant to discontinue such use
after such notice shall be considered a default in the
fulfillment of a covenant of this lease and Landlord shall have
the right to terminate this lease immediately, and in addition
thereto shall have the right to exercise any and all rights and
privileges and remedies given to Landlord pursuant to the
provisions of Article 25 hereof. The statement in this Lease of
the nature of the business to be conducted by Tenant in demised
premises shall not be deemed or construed to constitute a
representation or guaranty by Landlord that such business is
lawful or permissible under the certificate of occupancy issued
for the building, or otherwise permitted by law.
SPRINKLERS 23. If there now is or shall be installed in the building a
"sprinkler system", and such system or any of its appliances
shall be damaged or not in proper working order by reason of any
act or omission of Tenant, Tenant's agents, servants, employees,
licensees or visitors. Tenant shall forthwith at Tenant's own
expense restore the same to good working condition. If the New
York Board of Fire Underwriters, the New York Fire Insurance
Exchange or any bureau, department or official of the state or
city government, require, or recommend the installation of a
sprinkler system or equipment, or that any changes,
modifications, alterations or additional sprinkler heads or other
equipment, be made or supplied by reason of Tenant's business, or
the location of partitions, trade fixtures, or other contents of
the demised premises or for any other reason, or if any such
changes, modifications, alterations, additional sprinkler heads
or other equipment, became necessary to prevent the imposition of
a penalty or charge against the full allowance for a sprinkler
system in the fire insurance rate as fixed by said Exchange, or
by any Fire Insurance Company, Tenant shall, at Tenant's expense,
promptly make and supply such installation or changes,
modifications, alterations, additional sprinkler heads or other
equipment.
BANKRUPTCY 24. If, when and to the extent permitted by law, the parties
agree that the following provisions shall apply to this lease and
tenancy (and that the provisions of 11 U.S.C. Section 365(b)
shall be applied): (a) If at any time prior to the date herein
fixed as the commencement of the term of this lease there shall
be filed against Tenant thereof or if such filing is made by
Tenant in any court pursuant to any statute either of the United
States or of any State a petition in bankruptcy or insolvency or
for reorganization or for the appointment of a receiver or
trustee of all or a portion of Tenant's property, and within
thirty (30) days thereof Tenant fails to secure a discharge
thereof, or if Tenant make an assignment for the benefit of
creditors, or petition for or enters into an arrangement, this
lease shall ipso facto be cancelled and terminated, and in which
event, neither Tenant nor any person claiming through or under
Tenant or by virtue of any statute or of an order of any court
shall be entitled hereof and by virtue of any other provision
herein or elsewhere in this lease contained or by virtue of any
statute or rule of law, may retain as liquidated damages any
rent, security, deposit or monies, received by him from Tenant or
others in behalf of Tenant upon the execution hereof.
(b) If at the date fixed as the commencement of the term of this
lease or if at any time during the term hereby demised, there
shall be filed against Tenant thereof or if such filing is made
by Tenant in any court pursuant to any statute of the United
States or any State a petition of bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of
all or a portion of Tenant's property, and within thirty (30)
days thereof Tenant fails to secure a discharge thereof, or if
Tenant makes an assignment for the benefit of creditors or
petition for or enters into an arrangement, this lease, at the
option of Landlord, exercised within a reasonable time after
notice of the happening of any one or more of such events, may be
cancelled and terminated, and in which event neither Tenant nor
any person claiming through or under Tenant by virtue of any
statute or of an order of any court shall be entitled to
possession or to remain in possession of the premises demised,
but shall forthwith quit and surrender the premises, and
Landlord, in addition to the other rights and remedies Landlord
has by virtue of any other provision herein or elsewhere in this
lease contained or by virtue of any statute or rule of law, may
retain as liquidated damages any rent, security deposit or monies
received by him from Tenant or others in behalf of Tenant.
(c) It is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) or (b) hereof, Landlord
shall forthwith, notwithstanding any other provisions of this
lease to the contrary, be entitled to recover from Tenant as and
for liquidated damages an amount equal to the difference between
the rent reserved hereunder for the unexpired portion of the term
demised and the then fair and reasonable rental value of the
demised premises for the same period. In the computation of such
damages, the difference between any installment of rent becoming
due hereunder after the date of termination and the fair and
reasonable rental value of the demised premises for the period
for which such installment, was payable shall be discounted to
the date of termination at the rate of four percent (4%) per
annum. If such premises or any part thereof be re-let by Landlord
for the unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such
re-letting shall prima facie be the fair and reasonable rental
value for the part or the whole of the premises so re-let during
the term of the re-letting. Nothing herein contained shall limit
or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater,
equal to, or less than the amount of the difference referred to
above.
DEFAULT 25. (1)(a) If Tenant defaults in fulfilling any of the covenants
of this lease other than the covenants for the payment of rent or
additional rent, or of any ancillary agreement, or of the demised
premises become vacant or deserted, then, in any one or more of
such events, upon Landlord serving a written five (5) days'
notice upon Tenant specifying the nature of said default and upon
the expiration of said five (5) days, if Tenant shall have failed
to comply with or remedy such default, or if the said default or
omission complained of shall be of such a nature that the same
cannot be completely cured or remedied within said five (5) day
period, and if Tenant shall not have diligently commenced curing
such default within such five (5) day period, and shall not
thereafter with reasonable diligence and in good faith proceed to
remedy or cure such default, then Landlord may serve a written
three (3) days' notice of cancellation of this lease upon Tenant,
and upon the expiration of said three (3) days, this lease and
the term thereunder shall end and expire as fully and completely
as if the date of expiration of such three (3) day period were
the day herein definitely fixed for the end and expiration of
this lease and the term thereof, and Tenant shall then quit and
surrender the demised premises to Landlord, but Tenant shall
remain liable as hereinafter provided.
(b) If the notice provided for in (a) hereof shall have been
given, and the term shall expire as aforesaid; or (1) if Tenant
shall make default in the payment of the rent reserved herein or
any item of additional rent herein mentioned or any part of
either or in making any other payment herein provided; or (2) if
any execution or attachment shall be issued against Tenant or any
of Tenant's property whereupon the demised premises shall be
taken or occupied or attempted to be taken or occupied by someone
other than Tenant; or (3) if Tenant shall make default with
respect to any other lease between Landlord and Tenant; or (4) if
Tenant shall fail to move into or take possession of the premises
within fifteen (15) days after commencement of the term of this
lease, of which fact Landlord shall be the sole judge; then and
in any of such events Landlord may without notice, reenter the
demised premises either by force or otherwise, and dispossess
Tenant, the legal representative of Tenant or other occupant of
demised premises, by summary proceedings or otherwise, and remove
their effects and hold the premises as if this lease had not been
made, and Tenant hereby waives the service of notice of intention
to re-enter or to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the date fixed as
the commencement of any renewal or extension of this lease.
Landlord may cancel and terminate such renewal or extension
agreement by written notice.
(c) If Tenant is presently in possession of the demised premises
pursuant to a lease in writing heretofore made and if, before the
commencement of the term herein provided, the aforesaid lease
shall be terminated or Tenant shall be dispossessed or shall
voluntarily or involuntarily vacate, surrender or remove from the
demised premises, then this lease shall, at the option of
Landlord, be terminated, but Tenant shall nevertheless remain
liable as hereinbefore provided.
REMEDIES OF
LANDLORD (2) In case of any such default, entry, expiration and, or
dispossess by summary proceedings or otherwise (a) the rent shall
become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, together with such expenses as
Landlord may incur for legal expenses, attorneys' fees,
brokerage, and or putting the premises in good order, or for
preparing the same for re-rental; (b) Landlord may re-let the
premises or any part or parts thereof either in the name of the
Landlord or otherwise, for a term or terms which may at
Landlord's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease
and may grant concessions or free rent; and (c) Tenant or the
legal representatives of Tenant shall also pay Landlord as
liquidated damages for the failure of Tenant to observe and
perform said Tenant's covenants herein contained, and deficiency
between the rent hereby reserved and, or covenanted to be paid
and the net amount, if any, or the rents collected on account of
the lease or leases of the premises for each month of the period
which would otherwise have constituted the balance of the term of
this lease. In computing such liquidated damages there shall be
added to the said deficiency such expenses as Landlord may incur
in connection with re-letting, such as legal expenses,
attorneys' fees, brokerage and for keeping the 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 Landlord to collect
the deficiency for any subsequent month by a similar proceeding.
Landlord at Landlord's option may make such alterations and/or
decorations in the premises as Landlord in Landlord's sole
judgment considers advisable and necessary for the purpose of re-
letting the premises; and the making of such alterations and, or
decorations shall not operate or be construed to release Tenant
from liability hereunder as aforesaid. Landlord shall in no event
be liable in any way whatsoever for failure to re-let the
premises, or in the event that the premises are re-let, for
failure to collect the rent thereof under such re-letting. In the
event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or
in equity as if-entry, summary proceedings and other remedies
were not herein provided for. Mention in this lease of any
particular remedy, shall not preclude Landlord from any other
remedy, in law or in equity.
WAIVER OF
REDEMPTION (3) Tenant for the Tenant and on behalf of any and all persons
claiming through or under the Tenant, including creditors of all
kinds, hereby expressly waives any and all rights of redemption
granted by or under any present of future laws in the event of
Tenant being evicted or dispossessed for any cause, or in the
event of Landlord obtaining possession of demised premises, by
reason of the violation by Tenant of any of the covenants and
conditions of this lease, or otherwise.
FEES AND
EXPENSES 26. If Tenant shall default in the performance of any covenant on
Tenant's part to be performed as in this lease contained,
Landlord may immediately, or at any time thereafter, without
notice, perform the same for the account of Tenant. If Landlord
at any time is compelled to pay or elects to pay any sum of
money, or do any act which will require the payment of any sum of
money, by reason of the failure of Tenant to comply with any
provision hereof, or, if Landlord is compelled to or does incur
any expense including reasonable attorneys' fees, instituting,
prosecuting and/or defending any action or proceeding instituted
by reason of any default of Tenant hereunder, the sum or sums so
paid by Landlord with all interest, costs and damages, shall be
deemed to be additional rent hereunder and shall be due from
Tenant to Landlord on the first day of the month following the
incurring of such respective expenses, or at the Landlord's
option on the first day of any subsequent month.
REPRESENTATIONS
BY LANDLORD 27. Landlord or Landlord's agents have made no representations or
promises the respect to the said building or demised premises
except as herein expressly set forth. The taking possession of
the premises by Tenant shall be conclusive evidence, as against
Tenant, that the demised premises and the building were in good
and satisfactory condition at the time such possession was taken.
END OF TERM 28. Upon the expiration or other termination of the term hereof,
Tenant shall quit and surrender to Landlord the premises, broom
clean, in good order and condition, ordinary wear and tear
excepted, Tenant shall remove all property of Tenant as directed
by Landlord. If the last day of the term of this lease or any
renewal thereof falls on Sunday or a legal holiday, this lease
shall expire at 12 noon on the business day immediately
preceding. Tenant's obligation to observe or perform this
covenant shall survive the expiration of other termination of the
term of this lease. Any personal property of the Tenant or of any
subtenant or occupant which shall remain in the building after
the expiration or termination of the term and the removal of
Tenant from the premises shall be deemed to have been abandoned
by the Tenant and either may be retained by the Landlord as its
property or any part thereof shall be sold, the Landlord any
receive and retain the proceeds of such sale and apply the same,
at its option, against the expenses of the sale, the cost of
moving and storage, any arrears of rent or additional rent
payable hereunder and any damages to which the Landlord may be
entitled under Article 25 hereof or pursuant to law.
QUIET
ENJOYMENT 29. Landlord covenants and agrees with Tenant that upon Tenant
paying said rent, and performing at covenants and conditions
aforesaid, on Tenant's part to be observed and performed. Tenant
shall and may peaceably and quietly have, hold and enjoy the
demised premises, for the term aforesaid, subject, however, to
the terms of the lease, ground and underlying leases, if any, and
mortgage hereinbefore mentioned.
FAILURE TO GIVE
POSSESSION 30. If Landlord shall be unable to give possession of the
premises on the commencement date of the term because of the
retention of possession by any occupant thereof, alteration or
construction work, or for any other reason, Landlord shall not be
subject to any liability for such failure. In such event, this
lease shall stay in full force and effect, without extension of
its term. However, the rent hereunder shall not commence until
the premises are available for occupancy by Tenant. If Landlord
is unable to give possession of the premises on the commencement
date of the term because changes, repairs, or decorations being
made for Tenant's use have not been completed, or because of the
holding over by a prior occupant thereof, there shall be no
abatement of rent and the rent shall commence on the date
specified in this lease. If permission is given to Tenant to
occupy the demised premises or other premises prior to the date
specified as the commencement of the term, such occupancy shall
be deemed to be pursuant to the terms of this lease, except that
the parties shall separately agree as to the obligation of Tenant
to pay rent for such occupancy. The provisions of this article
are intended to constitute an "express provision to the contrary"
within the meaning of Section 223(a), the New York Real Property
Law.
31. No act or omission of Landlord or its agents shall constitute
an actual or constructive eviction, unless Landlord shall have
first received written notice of Tenant's claim and shall have
had a reasonable opportunity to meet such claim. In the event
that any payment herein provided for by Tenant to Landlord shall
become overdue for a period in excess of ten (10) days, then at
Landlord's option a "late charge" for such period and for each
additional period of twenty (2) days or any part thereof shall
become immediately due and owing to Landlord, as additional rent
by reason of the failure of Tenant to make prompt payment, at the
following rates: for individual and partnership Tenants, said
late charge shall be computed at two percent per month unless
there is an applicable maximum legal rate of interest which then
shall be used. No act or omission of Landlord or its agents shall
constitute an acceptance of a surrender of the premises, except a
writing signed by Landlord. The delivery of keys to Landlord or
its agents shall not constitute a termination of this lease or a
surrender of the premises. Acceptance by Landlord of less than
the rent herein provided shall at Landlord's option be deemed on
account of earliest rent remaining unpaid. No endorsement on any
check, or letter accompanying rent, shall be deemed an accord and
satisfaction, and such check may be cashed without prejudice to
Landlord. This lease contains the entire agreement between the
parties, and no modification thereof shall be binding unless in
writing and signed by the party concerned. Failure of Landlord to
enforce any provision of this lease, or any rule or regulation,
shall not be construed as the waiver of any subsequent violation
of a provision of this lease, or any rule or regulation. This
lease shall not be affected by nor shall Landlord in any way be
liable for the closing, darkening or bricking up of windows in
the premises, as a result of construction on any property of
which the premises are not a part, or by Landlord's own acts.
COST OF LIVING
ADJUSTMENT 32. The fixed annual rent reserved in this lease and payable
hereunder shall be adjusted, as of the times and in the manner
set forth in this Article.
(a) Definitions: For the purposes of this Article, the following
definitions shall apply:
(i) the term "Base Year" shall mean the full calendar year during
which the term of this lease commences.
(ii) The term "Price Index" shall mean the "Consumer Price Index"
published by the Bureau of Labor Statistics of the U.S.
Department of Labor. All Items, New York, N.Y. - Northeastern,
N.J., all urban consumers (presently denominated "CPI-U"), or a
successor or substitute index appropriately adjusted.
(iii) The term "Price Index for the Base Year" shall mean the
average of the monthly All Items Price Indexes for each of the 12
months of the Base Year.
(b) Effective as of each January and July subsequent to the Base
Year, there shall be made a cost of living adjustment of the
fixed annual rental rate payable hereunder. The July adjustment
shall be based on the percentage difference between the Price
Index for the preceding month of June and the Price Index for the
Base Year. The January adjustment shall be based on the
percentage difference between the Price Index for the preceding
month of December and the Price Index for the Base Year.
(i) In the event the Price Index for June in any calendar year
during the term of this lease reflects an increase over the Price
Index for the Base Year, then the fixed annual rent herein
provided to be paid as of the July 1st following such month of
June (unchanged by any adjustments under this Article) shall be
multiplied by the percentage difference between the Price Index
for June and the Price Index for the Base Year, and the resulting
sum shall be added to such fixed annual rent, effective as of
such July 1st. Said adjusted fixed annual rent shall thereafter
be payable hereunder, in equal monthly installments, until it is
readjusted pursuant to the terms of this lease.
(ii) In the event the Price Index for December in any calendar
year during the term of this lease reduces an increase over the
Price Index for the Base Year, then the fixed annual recent
herein provided to be paid as of the January 1st following such
month of December (unchanged by any adjustments under this
Article) shall be multiplied by the percentage difference between
the Price Index for December and the Price Index for the Base
Year, and the resulting sum shall be added to such fixed annual
rent, effective as of such January 1st. Said adjusted fixed
annual rent shall thereafter be payable hereunder, in equal
monthly installment, until it is readjusted pursuant to the terms
of this lease.
The following illustrates the intentions of the parties hereto as
to the computation of the aforementioned cost of living
adjustment in the annual rent payable hereunder:
Assuming that said fixed annual rent of $10,000, that the Price
Index for the Base Year was 1020 and that the Price Index for the
month of June in a calendar year following the Base Year was
105.0, then the percentage increase thus reflected, i.e., 2.941%
(3.0/102.0) would be multiplied by $10,000, and said fixed annual
rent would be increase by $294.10 effective as of July 1st of
said calendar year.
In the event that the Price Index ceases to use 1967-100 as the
basis of calculation or if a substantial change is made in the
terms or number of items contained in the Price Index, then the
Price Index shall be adjusted to the figure that would have been
arrived at had the manner of computing the Price Index in effect
at the date of this lease not been altered. In the event such
Price Index (or a successor or substitute index) is not
available, a reliable governmental or other non-partisan
publication evaluating the information theretofore used in
determining the Price Index shall be used.
No adjustments or recommendation, retroactive or otherwise, shall
be made due to any revision which may later be made in the first
published figure of the Price Index for any month.
(c) Landlord will cause statements of the cost of living
adjustments provided for in subdivision (b) to be prepared in
reasonable detail and delivered to Tenant.
(d) In no event shall the fixed annual rent originally provided
to be paid under this lease (exclusive of the adjustments under
this Article) be reduced by virtue of this Article.
(e) Any delay or failure of Landlord, beyond July or January of
any year, in computing or billing for the rent adjustments
hereinabove provided, shall not constitute a waiver of or in any
way impair the continuing obligation of Tenant to pay such rent
adjustments hereunder.
(f) Notwithstanding any expiration or termination of this lease
prior to the lease expiration date (except in the case of a
cancellation by mutual agreement) Tenant's obligation to pay rent
as adjusted under this Article shall continue and shall cover all
periods up to the lease expiration date, and shall survive any
expiration or termination of this lease.
TAX
ESCALATION 33. Lessee shall pay to Lessor, as additional rent, tax
escalation in accordance with this Article:
(a) Definitions for the purpose of this Article, the following
definitions shall apply:
(i) The term "base tax year" as hereinafter set forth for the
determination of real estate tax escalation, shall mean the New
York City real estate tax year commencing July 1, 1995 and ending
June 30, 1996.
(ii) The term "The Percentage", for purposes of computing tax
escalation, shall mean two percent plus 13/100 of one percent
(2.13%). The Percentage has been computed on the basis of a
fraction, the numerator or which is the rentable square foot area
of the presently demised premises and the denominator of which is
the total rentable square area of the office and commercial space
in the building project. The parties acknowledge and agree that
the rentable square foot area of the demised premises shall be
deemed to be 12,878 sq. ft. and that the total rentable square
foot area of the office and commercial space in the building
project shall be deemed to be 603,473 sq. ft.
(iii) The term "the building project" shall mean the aggregate
combined parcel of land on a portion of which are the improvement
of which the demised premises form a part, with all the
improvements thereon, said improvements being a part of the block
and lot for tax purposes which are applicable to the aforesaid
land.
(iv) The term "comparative year" shall mean the twelve (12)
months following the base tax year, and each subsequent period of
twelve (12) months (or such other period of twelve (12) months
occurring during the term of this lease as hereunder may be duly
adopted as the fiscal year for real estate tax purposes by the
City of New York).
(v) The term "real estate taxes" shall mean the total of all
taxes and special or other determination of legal proceedings,
settlement or otherwise, Lessor shall within ten (10) days after
receiving the refund pay to Lessee The Percentage of the refund
less The Percentage of expenses (including attorneys' and
appraisers' fees) incurred by Lessor in connection with any such
application or proceeding. If, prior to the payment of taxes for
any comparative year, Lessor shall have obtained a reduction of
that comparative year's assessed valuation of the building
project, and therefore of said taxes, then the term "real estate
taxes" for that comparative year shall be deemed to include the
amount of Lessor's expenses in obtaining such reduction in
assessed valuation, including attorneys' and appraisers' fees.
4. The statements of the real estate taxes to be furnished by
Lessor as provided above shall be certified by Lessor and shall
constitute a final determination as between Lessor and Lessee of
the real estate taxes for the periods represented thereby, unless
Lessee within thirty (30) days after they are furnished shall
give a written notice to Lessor that it disputes their accuracy
or their appropriateness, which notice shall specify the
particular respects in which the statement is inaccurate or
inappropriate. If Lessee shall so dispute said statement then
pending the resolution of such dispute, Lessee shall pay the
additional rent to Lessor in accordance with the statement
furnished by Lessor.
5. In no event shall the fixed annual rent under this Lease
(exclusive of the additional rents under this Article) be reduced
by virtue of this Article.
6. If the commencement date of the term of the Lease is not the
first day of the first comparative year, then the additional rent
due hereunder for such first comparative year shall be a
proportionate share of said additional rent for the entire
comparative year, said proportionate share to be based upon the
length of time that the Lease term will be in existence during
such first comparative year. Upon the date of any expiration or
termination of this Lease (except termination because of Lessee's
default) whether the same be the date hereinabove set forth for
the expiration of the term or any prior or subsequent date, a
proportionate share of said additional rent for the comparative
year during which such expiration or termination occurs shall
immediately become due and payable by Lessee to Lessor, if it was
not theretofore already billed and paid. The said proportionate
share shall be based upon the length of time that this Lease
shall have been in existence during such comparative year. Lessor
shall promptly cause statements of said additional rent for that
comparative year to be prepared and furnished to Lessee. Lessor
and Lessee shall thereupon make appropriate adjustments of
amounts then owing.
7. Lessor's and Lessee's obligations to make the adjustments
referred to in subdivision (6) above shall survive any expiration
or termination of this Lease.
8. Any delay or failure of Lessor in billing any tax escalation
hereinabove provided shall not constitute a waiver of or in any
way impair the continuing obligation of Lessee to pay such tax
escalation hereunder.
WAIVER OF TRIAL BY
JURY, ETC 34. It is mutually agreed by and between Landlord and Tenant that
the respective parties hereto shall and they hereby do waive
trail by jury in any action, proceeding or counter claim brought
by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this
lease, of any extension or renewal thereof, or the Tenant's use
or occupancy of said premises. It is further mutually agreed that
in the event Landlord commences any summary proceeding for
possession of the premises. Tenant will not interpose any
counterclaim of whatever nature or description in any such
proceeding.
NOTICES, 35. Except as otherwise in this lease provided, any notice, xxxx
XXXXX, AND or statement by either party to the other may be given or sent
STATEMENTS and shall be deemed to have been duly given or sent if either
delivered personally or mailed, by registered or certified mail,
in a postpaid envelope, addressed to the landlord c/o
Helmsley-Spear, Inc., Agents, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X.
00000 and to the Tenant at the premises (or at the Tenant's
present address as above set forth, if mailed prior to the
Tenant's occupancy of the Premises), or if any address for
notices shall have been duly changed as hereinafter provided, if
mailed to the party at such changed address. Either party may at
any time change the address for notices, bills or statements by
delivering or mailing, as aforesaid, a notice stating the change
and setting forth the changed address.
Should the term "Tenant", as used in this Lease, refer to more
than one person, any notice, xxxx or statement given or sent as
aforesaid to any one of such persons shall be deemed to have been
duly given or sent to the Tenant.
SECURITY 36. Tenant has deposited with Landlord the sum of None as
security for the faithful performance and observance by Tenant of
the terms, provisions and conditions of this lease: it is agreed
that in the event Tenant defaults in respect of any of the terms,
provisions and conditions of this lease, including, but not
limited to, the payment of rent and additional rent, Landlord may
use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and
additional rent or any other sum as to which Tenant is in default
or for any sum which Landlord may expend or may be required to
expend by reason of Tenant's default in respect of the terms,
covenants and conditions of this lease, including but not limited
to, any damages or deficiency in the re-letting of the premises,
whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Landlord. Tenant shall,
upon demand, deposit with Landlord the full amount so used, in
order that Landlord shall have the full security deposit on hand
at all times during the term of this lease. In the event that
Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of
the Lease and after delivery of entire possession of the demised
premises to Landlord. In the event of a conveyance of the land
and building of which the demised premises form a part or
assignment or leasing of Landlord's interest therein, Landlord
shall have the right to transfer the security to the vendee,
assignee or lessee and Landlord shall thereupon be released by
Tenant from all liability for the return of such security; and
Tenant agrees to look to the new Landlord solely for the return
of said security; and it is agreed that the provisions hereof
shall apply to every transfer or assignment made of the security
to a new Landlord. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the monies
deposited herein as security and that neither Landlord nor its
successors or assigns shall be bound by any such assignment,
encumbrances, attempted assignment or attempted encumbrance.
MARGINAL NOTES 37. The marginal notes are inserted only as a matter of
convenience and for reference and in no way define, limit or
describe the scope or intent of this lease nor in any way affect
this lease.
DEFINITIONS 38. The term "Landlord" as used in this lease means only the
owner or the mortgagee in possession for the time being of the
land and building (or the owner of a lease or sublease of the
entire building), 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 other disposition of said land and
building or said leasehold, the said Landlord shall be and hereby
is entirely freed and relieved of all covenants and obligations
of Landlord hereunder, and it shall be deemed and construed
without further agreement between the parties or their successors
in interest, or between the parties and the purchaser, at any
such sale, or the said lessee of the building, that the purchaser
or the lessee of the building has assumed and agreed to carry out
any and all covenants and obligations of Landlord hereunder. The
term "business days" shall be construed to mean Monday to Friday
inclusive, excluding holidays. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their
technical legal meaning The use herein of the neuter pronoun in
reference to Landlord or Tenant shall be deemed to include any
individual landlord or tenant.
Gross footage shall include all the aliquot space taken up for
stairways, stair xxxxx, lobbies, elevator shafts, lavatories,
wash rooms, utilities, etc., and air-conditioning equipment in
the building whether or not located in the demised premises.
RIGHTS OF SUCCESSORS
AND ASSIGNS 39. The covenants, conditions and agreements contained in this
lease shall bind and inure to the benefit of Landlord and Tenant
and their respective heirs, distributees, executors,
administrators, successors, and except as otherwise provided in
this lease, their assigns. If any provision of any Article of
this lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable,
the remainder of that Article, or the application of such
provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each provision of said Article and this lease shall
be valid and be enforced to the fullest extent permitted by law.
40. Tenant covenants and agrees that, if by reason of a default
upon the part of the Landlord as lessee under any underlying
lease in the performance of any of the terms or provisions of
such underlying lease, such underlying lease and the leasehold
estate of Landlord as lessee thereunder is terminated by summary
proceedings or otherwise in accordance with the terms of such
underlying lease or if such underlying lease and such leasehold
estate is terminated through foreclosure proceedings brought by
the holder of any mortgage to which such underlying lease is
subject or subordinate. Tenant will attorn to the lessor under
such underlying lease or the purchaser in foreclosure
proceedings, as the case may be, and will recognize such lessor
or such purchaser, as the case may be, as Tenant's Landlord under
this lease, unless the lessor under such underlying lease or the
holder of any such mortgage in any such proceedings shall elect
in connection therewith to terminate this lease and the right of
Tenant to the possession of the premises demised hereby. Tenant
agrees to execute and deliver, at any time and from time to time,
upon the request of Landlord or of the lessor under any such
underlying lease, any instrument which may be necessary or
appropriate to evidence such attornement, and Tenant hereby
appoints Landlord the attorney-in-fact, irrevocable, of Tenant to
execute and deliver for and on behalf of Tenant any such
instrument. Tenant further waives the provisions of any statute
or rule of law now or hereafter in effect which may give or
purport to give Tenant any right of election to terminate this
lease or to surrender possession of the premises demised hereby
in the event any such proceedings are brought by the lessor under
any such underlying lease or the holder of such mortgage, and
agrees that unless and until any such lessor or the holder of any
such mortgage, in connection with any such proceedings, shall
elect to terminate this lease, and to extinguish the leasehold
estate of Tenant hereunder, by naming Tenant as a party and by
entering judgment in any such proceedings barring or foreclosing
Tenant from any rights in the demised premises, this lease shall
not be affected in any way whatsoever by any such proceedings.
OCCUPANCY AND
USE BY LESSEE 41. (a) Lessee acknowledges that its continued occupancy of the
demised premises, and the regular conduct of its business
therein, are of utmost importance to the Lessor in the renewal of
other leases in the building, in the renting of vacant space in
the building, in the providing of electricity, air conditioning,
steam and other services to the tenants in the building, and in
the maintenance of the character and quality of the tenants in
the building. Lessee therefore covenants and agrees that it will
occupy the entire demised premises and will conduct its business
therein in the regular and usual manner, throughout the term of
this lease. Lessee acknowledges that Lessor is executing this
lease in reliance upon these covenants, and that these covenants
are a material element of consideration inducing the Lessor to
execute this lease. Lessee further agrees that if it vacates the
demised premises or fails to so conduct its business therein, at
any time during the term of this lease, without the prior written
consent of the Lessor, then all rent and additional rent reserved
in this lease from the date of such breach to the expiration date
of this lease shall become immediately due and payable to Lessor.
(b) The parties recognize and agree that the damage to Lessor
resulting from any breach of the covenants in subdivision (A)
hereof will be extremely substantial, will be far greater than
the rent payable for the balance of the term of this lease, and
will be impossible of accurate measurement. The parties therefore
agree that in the event of a breach or threatened breach of the
said covenants, in addition to all of Lessor's other rights and
remedies, at law or in equity or otherwise. Lessor shall have the
right of injunction to preserve Lessee's occupancy and use. The
words "become vacant or deserted" as used elsewhere in this lease
shall include Lessee's failure to occupy or use as by this
Article required.
(c) If Lessee breaches either of the covenants in subdivision (A)
above, and this lease be terminated because of such default,
then, in addition to Lessor's rights of re-entry, restoration,
preparation for and rerental, and anything elsewhere in this
lease to the contrary notwithstanding. Lessor shall retain its
right to judgment on and collection of Lessee's aforesaid
obligation to make a single payment to Lessor of a sum equal to
the total of all rent and additional rent reserved for the
remainder of the original term of this lease, subject to future
credit or repayment to Lessee in the event of any rerenting of
the premises by Lessor, after first deducting from rerental
income all expenses incurred by Lessor in reducing to judgment or
otherwise collecting Lessee's aforesaid obligation, and in
obtaining possession of, restoring, preparing for and re-letting
the premises. In no event shall Lessee be entitled to a credit or
repayment for rerental income which exceeds the sums payable by
Lessee hereunder or which covers a period after the original term
of this lease.
RENT CONTROL 42. In the event the rent or any part thereof provided to be paid
by Tenant under the provisions of this lease during the demised
term shall become uncollectable by virtue of any Federal, State,
County, or City law, ordinance or regulation or by any direction
of a public officer or body pursuant to law. Landlord, at its
option, may at any time thereafter terminate this lease, by not
less than thirty (30) days' written notice to Tenant, on a date
set forth in said notice, in which event this lease and the term
hereof shall terminate and come to an end on the date fixed in
said notice as if the said date where the date originally fixed
herein for the termination of the demised term. Landlord shall
not have the right so to terminate this lease if Tenant within
such period of thirty (30) days shall in writing lawfully agree
that the rental herein reserved is a reasonable rental and agreed
to continue to pay such rental, and if such agreement by Tenant
shall be legally enforceable by Landlord.
END OF TERM 43. Tenant shall surrender the demised premises to the Landlord
at the expiration or sooner termination of this lease in good
order and condition, except for reasonably wear and tear and
damage by fire or other casualty, and tenant shall remove all of
its property. Tenant agrees it shall indemnify and save Landlord
harmless against costs, claims, loss or liability resulting from
delay by Tenant in so surrendering the demised premises,
including, without limitation, any claims made by any succeeding
Tenant found on such delay . The parties recognize and agree that
the damage to Landlord resulting from any failure by Tenant
timely to surrender possession of the demised premises as
aforesaid will be extremely substantial, will exceed the amount
of monthly rent theretofore payable hereunder, and will be
impossible of accurate measurement. Tenant therefore agrees that
if possession of the demised premises is not surrendered to
Landlord within one (1) day after the date of expiration or
sooner termination of the term of this lease, then Tenant agrees
to pay Landlord as liquidated damages for each month and for each
portion of any month during which Tenant holds over the premises
after expiration or termination of the term of this lease, a sum
equal to three times the average rent and additional rent which
was payable per month under this lease during the last six months
of the term thereof. The aforesaid provisions of this article
shall survive the expiration or sooner termination of the term of
this lease or from any breach of this lease.
INDEMNITY 44. Tenant shall, throughout the term and thereafter, indemnify
Landlord and save it harmless and free from damages, liabilities,
losses, expenses, causes of action, claims, suits and judgments,
as well as all expenses and attorneys' fees, arising from injury
during said term to person or property of any nature, and also
for any matter or thing growing out of the occupation of the
demised premises or the streets, sidewalks, or vaults adjacent
thereto occasioned in whole or part by any act or acts, omission
or omissions of Tenant, its employees, guests, agents, assigns or
undertenants, or from any breach of this lease.
ADJACENT EXCAVATION
-SHORING 45. If an excavation shall be made upon land adjacent to the
demised premises, or shall be authorized to be made, Tenant shall
afford to the person causing or authorized to cause such
excavation, license to enter upon the demised premises for the
purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which the demised premises
form a part from injury or damage and to support the same by
proper foundations without any claim for damages or indemnity
against Landlord, or diminution or abatement of rent.
46. This lease may not be modified or amended, nor any provision
hereof waived, except by an agreement in writing signed by the
parties hereto.
BROKERS 47. Tenant represents and warrants that it neither consulted nor
negotiated with any broker or finder with regard to the demised
premises or this lease other than . Tenant agrees to indemnify,
defend and save Landlord harmless from and against any claims for
with whom Tenant has dealt in connection with the demised
premises or this lease.
48. The premises are rented "as is."
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed
and sealed this lease as of the day and year first above written.
WITNESS FOR LANDLORD: 000 XXXX 00xx XXXXXX COMPANY,
Landlord
BY: Helmsley-Spear, Inc., Agents
By:/s/ XXXXXX XXXXXXXXX
-------------------------- ---------------------------------
Executive Vice President
WITNESS FOR TENANT: XXXXXXXX'X INC., OF NEW YORK
By:/s/ XXXXXX X. XXXXXXX
-------------------------- ---------------------------------
Additional Clauses attached to and made part of the lease dated
August 22, 1995 between 000 Xxxx 00xx Xxxxxx Company and
Xxxxxxxx'x Inc., of New York.
GUARANTY
For Value Received, and in consideration for, and as an inducement
to Landlord making the foregoing lease with Tenant, the undersigned
guarantees to Landlord, its successors and assigns, the full performance
and observance of all the covenants, conditions and agreements,
including the "Rules and Regulations", therein provided to be performed
and observed by Tenant, without requiring any notice or proof of
non-payment, non-performance, or non-observance, and without demand, to
charge the undersigned therefor, all of which the undersigned hereby
expressly waives.
The undersigned further covenants and agrees: (a) that the validity
of this agreement and its obligations hereunder shall in no wise be
terminated, affected or impaired by reason of the assertion by Landlord
against Tenant of any of the rights or remedies reserved to Landlord
pursuant to the provisions of the within lease; (b) that this guaranty
shall remain and continue in full force and effect as to any renewal,
modification or extension of the within lease.
As a further inducement to Landlord to make the within lease and in
consideration thereof, Landlord and the undersigned covenant and agree
that in any action or proceeding or counterclaim brought by either
against the other on any matters whatsoever arising out of, under, or in
any way connected with said lease or this guaranty, or by virtue of the
terms thereof, Landlord and the undersigned shall and do hereby waive
trial by jury.
Dated, New York City, September 19, 1995
XXXXXXXX'X INC., OF NEW YORK, INC.
/s/ XXXX X. XXXXX By: /s/ XXXXXX X.XXXXXXX
------------------------------- --------------------------
Witness
Xxxxxx X. Xxxxxxx
--------------------------
Executive Vice President
--------------------------
Address
State of New York )
) ss.:
County of New York )
On this 19th day of September, 1995, before me personally came
Xxxxxx X. Xxxxxxx to me known and known to me to be the individual
described in, and who executed the foregoing Guaranty and acknowledged
to me that he executed the same.
/s/ Xxxxxxx X. Xxxxxx
-----------------------
Notary Public
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators,
vestibules, corridors or halls shall not be obstructed or encumbered by
any Tenant or used for any purpose other than ingress and egress to and
from the demised premises.
2. The freight and note the passenger elevators shall be used by
the working hands of the Tenant and by persons calling for and
delivering goods to and from the demised premises.
3. The Landlord may refuse admission to the building outside of
ordinary business hours to any person not known to the watchman in
charge or not having a pass issued by the Landlord or not property
identified and may require all persons admitted to or leaving the
building outside of ordinary business hours to register. Any person
whose presence in the building at any time shall, in the Landlord's
judgment, be prejudicial to the safety, character, reputation and
interests of the building or of its tenants may be denied access to the
building or may be ejected therefrom. The Landlord may require any
person leaving the building with any package or other object to exhibit
a pass from the tenant from those premises the package or object is
being removed, but the establishment and enforcement of such
requirements shall not impose any responsibility on the Landlord for the
protection of any tenant against the removal of property from the
premises of the tenant. Landlord shall, in no way, be liable to any
tenant for damages or loss arising from the admission, exclusion or
ejection of any person to or from the premises or the building under the
provision of this Rule.
4. No tenants shall obtain or accept for use in the premises ice,
drinking water, towel, barbering, bootblacking, floor polish or other
similar services from any persons not authorized by the Landlord in
writing to furnish such services, provided always, that the charges for
such services by persons authorized by the Landlord are not excessive.
Such services shall be furnished only at hours and under regulations
fixed by the Landlord.
5. No awnings or other projections shall be attached to the outside
walls of the building without the prior written consent of the Landlord.
No curtains, blinds, shades, or screens shall be attached to or hung in,
or used in connection with, any window or door of the premises, without
the Landlord's prior written consent.
6. The sashes, sash doors, skylights, windows, and doors that
reflect or admit light and air into the halls, passageways or other
public places in the building shall not be covered or obstructed by any
Tenant nor shall any bottles, parcels, or other articles be placed on
the windowsills.
7. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or substances shall be
thrown therein. All damages resulting from any misuse of the fixtures
shall be borne by the Tenant who, or whose servants, employees, agents,
visitors or licensees, shall have caused the same.
8. No Tenant shall xxxx, paint, drill into, or in any way deface
any part of the demised premises or the building of which they from a
part. No boring, cutting or suringing of wires shall be permitted,
except with the prior written consent of the Landlord, and as the
Landlord may direct. No Tenant shall lay linoleum, or other similar
floor coverings, 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.
9. No Tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or
neighboring buildings or premises or those having business with them
whether by the use of any instrument, radio, talking machine, unmusical
noise, whistling, singing, or in any other way.
10. No Tenant, nor any of Tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep upon the demised
premises any inflammable, combustible or explosive fluid, chemical or
substance, or cause or permit any unusual or objectionable odors to be
produced upon or permeate from the demised premises.
11. No Tenant shall place a load upon any floor of the building
exceeding the floor load per square foot area which such floor was
designed to carry, and all floor loads shall be evenly distributed. All
removals, or the carrying in and out of any safes, freight, furniture or
bulky matters of any description must take place during such hours and
in a manner approved by the Landlord. The Landlord reserves the right to
prescribe the weight and position of safes as well as the placing of
large quantities of merchandise. The Landlord reserves the right to
inspect all freight to be brought into the building and to exclude from
the building all freight which violates any provision of the lease of
which these Rules and Regulations are a part or any of these Rules and
Regulations.
12. All machinery shall be placed by the Tenant in the demised
premises in approved settings to absorb or prevent any vibration, noise
or annoyance.
13. The Landlord shall have the right to prohibit any advertising
by any Tenant which, in its opinion, tends to impair the reputation of
the building or its desirability as a building for lofts, and upon
written notice from the Landlord, Tenants shall refrain from or
discontinue such advertising.
14. Any person employed by any Tenant to do janitor work, shall,
while in said building and outside of said demised premises, be subject
to, and under the control and direction of the Superintendent of said
building (but not as agent or servant of said Superintendent or of the
Landlord).
15. Canvassing, soliciting and peddling in the building is
prohibited and each Tenant shall co-operate to prevent the same.
16. No water cooler, air conditioning unit or system or other
apparatus shall be installed or used by any Tenant without the written
consent of Landlord.
17. There shall not be used in any space, or in the public halls of
any building, either by any tenant or by jobbers or others, in the
delivery or receipt of merchandise, any hand trucks, except those
equipped with rubber tires and side guards.
18. The Landlord reserves the right to rescind, alter or waive any
rule or regulation at any time prescribed for the Building when in its
judgment, it deems it necessary, desirable or proper for its best
interest and for the best interests of the tenants, and no alteration or
waiver of any rule or regulation in favor of one Tenant shall operate as
an alteration or waiver in favor of any other Tenant.
19. The use in the demised premises of auxiliary heating devices,
such as portable electric heaters, heat lamps or other devices whose
principal function at the time of operation is to produce space heating,
is prohibited.
20. Whenever Tenant shall submit to Landlord any plan, agreement or
other document for Landlord's consent or approval, Tenant agrees to pay
Landlord as additional rent, on demand, a sum equal to the reasonable
fees of any architect, engineer or attorney employed by Landlord to
review said plan, agreement or document.
ADDITIONAL PARAGRAPHS attached to and forming a part of lease
dated August 22, 1995 between 000 XXXX 00xx XXXXXX COMPANY and
Xxxxxxxx'x, Inc. of New York
Supplementing the provisions of Article 3 and 41 hereof, Landlord,
subject to the provision hereof, will not unreasonably withhold consent
to an assignment of this lease or to subletting of all or part of the
demised premises provided that Tenant will not move the conduct of its
business to another building in New York City.
A. Any such assignment or subletting shall be made solely upon the
following terms and conditions:
1.(a) No assignment and no subletting shall become effective unless
and until Tenant shall have given Landlord at least 30 days' prior
written notice of such proposed assignment or proposed bona fide
subletting and requested Landlord's consent thereto. With the notice
Tenant shall submit in writing to Landlord (i) the name and address of
the proposed assignee or sublessee, (ii) Tenant will present list of all
material terms and conditions of proposed sublease or assignment, (iii)
reasonably satisfactory information as to the nature and character of
the business of the proposed assignee or sublessee, and as to the nature
of its proposed use of the space, and (iv) banking, financial or other
credit information relating to the proposed assignee or sublessee
reasonably sufficient to enable Landlord to determine the financial
responsibility and character of the proposed assignee or sublessee.
(b) The parties agree that if there is a proposed assignment or a
proposed subletting of all of the demised premises, then Landlord shall
thereupon have the option, exercisable by written notice within 20 days
after receipt of the notice from Tenant, to terminate this lease
effective as of the date of the proposed assignment or the commencement
date of the term of such proposed subletting. If there is a proposed
subletting of part but not all of the demised premises, then Landlord
shall thereupon have the option, exercisable by written notice within 30
days after the receipt of the notice from Tenant, to delete the space
proposed to be subleased from the premises demised hereunder (with a
prorated change in all payments due hereunder for the remainder of the
term of this lease) effective as of the commencement date of the term of
such proposed subletting. If Landlord shall so terminate this lease or
delete portions of space therefrom, then Tenant shall vacate and
surrender the demised premises, or the deleted space portion, to
Landlord, on or before the date fixed in the Landlord's termination or
space deletion notice. Tenant may sublease space to up to 4 separate
entities.
(c) In the event Landlord shall elect not to terminate this lease
or delete portions of space therefrom pursuant to the provisions of
subdivision (a) hereof and Tenant effects such assignment or subletting,
then Tenant thereafter shall pay to Landlord a sum equal to 50% (a) any
rent or other consideration paid to Tenant by any subtenant which (after
deducting the costs of Tenant, if any, in effecting the subletting,
including reasonable alteration costs, commissions and legal fees) is in
excess of the rent allocable to the subleased space which is then being
paid by Tenant to Landlord pursuant to the terms hereof; and (b) any
other profit or gain (after deducting any necessary expenses incurred)
realized by Tenant from any such subletting or assignment. All sums
payable hereunder by Tenant shall be payable to Landlord as additional
rent upon receipt thereof by Tenant.
2. There shall be no monetary default by Tenant under any of the
terms, covenants and conditions of this lease at the time that
Landlord's consent to any such subletting or assignment is requested and
on the date of the commencement of the term of any such proposed
sublease or the effective date of any such proposed assignment.
3. Upon receiving Landlord's written consent, a duly executed copy
of the sublease or assignment shall be delivered to Landlord within ten
(10) days after execution thereof. Any such sublease shall provide that
the subtenant shall comply with all applicable terms and conditions of
this lease to be performed by the Tenant hereunder. Any such assignment
of lease shall contain an assumption by the assignee of all of the terms
and obligations of this lease to be performed by the Tenant.
4. Anything herein contained to the contrary notwithstanding:
(a) Tenant shall not advertise or list its space for assignment or
subletting at a rental rate lower than the rental rate then being paid
by Tenant to Landlord.
(b) The transfer of a majority of the issued and outstanding
capital stock of any corporate Tenant of this lease or a majority of the
total interest in any partnership Tenant, however accomplished, and
whether in a single transaction or in a series of related or unrelated
transactions, shall be deemed an assignment of this lease. The transfer
of outstanding capital stock of any corporate Tenant, for purposes of
this Article, shall not include sale of such stock by persons other than
those deemed "insiders" within the meaning of the Securities Exchange
Act of 1934 as amended, and which sale is effected through the
"over-the-counter market" or through any recognized stock exchange.
5. No assignment or subletting shall be made:
(a) To any person or entity shall at that time be a tenant,
subtenant or other occupant of any part of the building of which the
demised premises form a part: or which shall within the prior six months
have been negotiating with the Managing Agent to become such a tenant,
subtenant or occupant unless Landlord has the comparable space.
(b) By the legal representatives of the Tenant or by any person to
whom Tenant's interest under this lease passes by operation of law,
except in compliance with the provisions of this Article and Articles 3
and 41 hereof; and
(c) To any person or entity for the conduct of a business which is
not the business as stated in paragraph, or to any person or entity for
the conduct of a business which is not in keeping with the standards for
and general character of the building of which the demised premises form
a part.
6. No other or further assignment or subletting shall be made
except in compliance with the provisions of this Article and Articles 3
and 41 hereof.
ADDITIONAL PARAGRAPHS attached to and forming a part of lease dated
August 22, 1995 between 000 XXXX 00XX XXXXXX COMPANY and XXXXXXXX'X,
INC. OF NEW YORK.
50. It is understood and agreed that this lease is submitted to
Tenant in the understanding that it shall not be considered an offer and
shall not bind Landlord in any way until (i) Tenant has duly executed
and delivered duplicate originals to Landlord and (ii) Landlord has
executed and delivered one of said originals to Tenants.
51. Tenant shall not be required to pay base rent, for the four (4)
months of November, 1995, December, 1995, January, 1996 and February,
1996. It is understood and agreed that in no event shall tenant be
entitled to more than four (4) months free rent.
52. It is understood and agreed that Landlord and tenant will share
equally in the cost of the installation for Room 1710 as per plan
prepared by "The Xxxxxxxx Xxxxxx Group". In no event shall Landlord's
cost exceed One Hundred Seventy Five Thousand Dollars ($175,000.00).
PLEASE NOTE: TENANT IS RESPONSIBLE TO PAY ANY FEES INCURRED IN
DESIGNING THE SPACE. THE SPACE DESIGNER AND/OR ARCHITECT FEES SHALL BE
THE SOLE RESPONSIBILITY OF TENANT.
