EXHIBIT 10.8
Lease
dated as of
December 27, 1993
between
The Xxxxxx, Church-Wardens, and Vestrymen
of Trinity Church
in the City of New York, Landlord
and
SMA Video Inc., Tenant
--------------------------
100 Avenue of the Americas
--------------------------
TABLE OF CONTENTS
FIRST: Use .................................... 2
SECOND: Rent ................................... 2
THIRD: Repairs ................................ 2
FOURTH: Alterations and Fixtures ............... 3
FIFTH: Compliance with Governmental
Rules and Regulations .................. 5
SIXTH: Compliance with Landlord's
Rules .................................. 6
SEVENTH: Landlord's Access to the
Premises ............................... 6
EIGHTH: Electric Current ....................... 7
NINTH: Condemnation ........................... 7
TENTH: Mechanic's Liens ....................... 9
ELEVENTH: Subordination .......................... 9
TWELFTH: Liquors ................................ 10
THIRTEENTH: Fire and Fire Insurance ................ 10
FOURTEENTH: Change in Use of Premises,
Subletting and Assignment .............. 12
FIFTEENTH: Waiver and Surrender;
Remedies Cumulative .................... 18
SIXTEENTH: Representations as to
Premises, certificate of
Occupancy and Use ...................... 18
SEVENTEENTH: Limitation of Landlord's
Liability .............................. 19
EIGHTEENTH: Indemnity by Tenant .................... 20
NINETEENTH: Insolvency ............................. 20
TWENTIETH: Remedies of the Landlord on
Default; Performance by the
Landlord ............................... 21
(a) Remedies of the Landlord
on Default; Performance
by the Landlord ................ 21
(b) Performance by the Landlord
Not an Exclusive Remedy ........ 22
(c) Dispossess Termination
of Lease ....................... 22
TWENTY-FIRST: Surrender at Expiration ................ 24
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TWENTY-SECOND: Tenant's Deposit ....................... 24
TWENTY-THIRD: Building Services ...................... 25
TWENTY-FOURTH: Water; HVAC ............................ 27
TWENTY-FIFTH: Work to be Done by Landlord ............ 27
TWENTY-SIXTH: Real Estate Tax and CPI
Escalation ............................. 27
TWENTY-SEVENTH: Construction of Office
Improvements ........................... 31
TWENTY-EIGHTH: Broker ................................. 33
TWENTY-NINTH: Notices; Miscellaneous ................. 33
THIRTIETH: Quiet Enjoyment ........................ 34
THIRTY-FIRST: Security Guard Program ................. 34
THIRTY-SECOND: Headings ............................... 34
THIRTY-THIRD: Free Rent .............................. 34
THIRTY-FOURTH: Delayed Possession ..................... 35
THIRTY-FIFTH: No Pornography ......................... 35
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THIS LEASE made this 19th day of December, 1993, between THE XXXXXX,
CHURCHWARDENS AND VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW YORK, a
religious corporation (hereafter referred to as the "Landlord"), having its
offices at 00 Xxxxxxx Xxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New
York, and SMA VIDEO INC. (hereinafter referred to as the "Tenant"), a New York
corporation, having its place of business at [address].
W I T N E S S E T H :
--------------------
That the Landlord hereby lets and leases to the Tenant, and the Tenant
hereby takes and hires from the Landlord, the following described space: the
entire 10th floor as crosshatched on the diagram attached hereto as Exhibit
"All (such space is hereafter referred to as the "premises"), in the building
of the Landlord known by street number as 100 Avenue of the Americas, in the
Borough of Manhattan, City, County and State of New York (hereafter referred to
as the "building") with the privilege to the Tenant of using (subject to the
rules and regulations annexed hereto and such further rules and regulations of
which Tenant is given notice as the Landlord shall from time to time prescribe,
provided such further rules and regulations do not materially interfere with or
diminish Tenant's rights under the lease) and the Tenant is hereby granted the
nonexclusive right to use all common areas of the building and the necessary
entrances and appurtenances to the premises, reserving to the Landlord all
other portions of the building not herein specifically demised, for a term to
commence at noon, Standard Time, on March 1, 1994 (the "Commencement Date") and
to expire at noon Standard Time on July 31, 2004 or until such term shall
sooner cease and expire or be terminated as hereafter provided (the "Expiration
Date"), at the rent at the annual rate or rates as follows:
During the period commencing on the Commencement Date and
ending on the day immediately preceding the third anniversary of the
Commencement Date, the annual rent shall be Three Hundred Thousand and
no/100 ($300,000) Dollars;
During the period commencing on the third anniversary of the
Commencement Date and ending on the day immediately preceding the sixth
anniversary of the Commencement Date, the annual rent shall be Three
Hundred Twenty-five Thousand and no/100 ($325,000) Dollars,
During the period commencing on the sixth anniversary of the
Commencement Date and ending on the Expiration Date, the annual rent
shall be Three Hundred Fifty-two Thousand and no/100 ($352,000)
Dollars,
payable at the offices of the Landlord in equal monthly payments equal to
1/12th of the rent at the annual rates as above prescribed for the respective
periods in which they are payable, in advance without demand therefor and an
installment equal to the amount of the rent payable under this lease for the
first month of the term for which rent is payable shall be paid upon the
execution of this Lease, and thereafter, on the first day of each month during
said term, in lawful money of the United States, plus, when due or demanded,
such items as shall be provided hereafter are payable by the Tenant as
additional rent.
THE ABOVE LETTING IS UPON THE FOLLOWING COVENANTS, TERMS AND
CONDITIONS, each and every one of which the Tenant covenants and agrees with
the Landlord to keep and perform, and the Tenant agrees that the covenants
herein contained on the part
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of the Tenant to be performed, shall be deemed conditional
limitations, as well as covenants and conditions:
FIRST: Use. The Tenant shall use the premises only
for general and executive offices, including but not limited to
offices of a film and video production business, studio and post
production facility, its related or affiliated uses, such as
storage and work area, provided that such use is ancillary to the
use of the premises as offices of a film and video production
business.
SECOND: Rent. (a) The Tenant shall pay the rent and
additional rent as provided in this lease.
(b) If any installment or installments of rent or additional rent or
any service charge shall not be paid within five (5) business days following
the date on which the same shall be due and payable pursuant to this lease
then, in addition to, and without waiving or releasing, any other rights and
remedies of the Landlord, the Tenant shall pay to the Landlord a late charge of
one and one-half (1-1/2%) percent per month computed (on the basis of a 30-day
month) from the date on which each such installment became due and payable to
the date of payment of the installment on the amount of each such installment
or installments, as liquidated damages for Tenant's failure to make prompt
payment, and the same may be collected on demand or as additional rent in
accordance with the provisions of Article TWENTY-FIRST of this lease.
THIRD: Repairs. (a) Tenant shall take good care of the premises and the
fixtures, appurtenances, equipment and facilities therein and shall make, as
and when needed, all repairs in and about the premises required to keep them in
good order and condition; such repairs to be equal in quality to the original
work, provided that the Tenant shall not be obligated for structural or
exterior repairs to the building or for repairs to the systems and facilities
of the building for the use or service of tenants generally (including
the plumbing, heating and electrical systems), other than fixtures,
appurtenances, equipment and facilities in the premises, except where
structural or exterior repairs or repairs to such systems and facilities are
made necessary by reason of one or more of the occurrences described below in
clauses (i) through (iv) of this Article THIRD (a). Should the Tenant fail to
repair any condition in or about the premises or the fixtures, appurtenances,
equipment and facilities therein which is of such a nature that its neglect
would be reasonably likely to result in damage or danger to the building, its
fixtures, appurtenances, facilities and equipment, or to its occupants (of
which nature the Landlord shall be the sole judge) or, in the case of repairs
of any other nature, should the Tenant have failed to make the required repairs
or to have begun, in good faith, the work necessary to make them within five
days after notice from the Landlord of the condition requiring repair, then in
either case, the Landlord may (but shall have no obligation to) immediately
enter the premises and make the required repairs at the expense of the Tenant.
The Landlord may (but shall have no obligation to) make, at the expense of the
Tenant, any repairs to the building or to its fixtures, appurtenances,
facilities or equipment, whether of a structural or any other nature, which are
required by reason of damage or injury due (i) to the negligence or the
improper acts of the Tenant or Tenant's employees, agents, contractors,
licensees or visitors; (ii) to the moving, into or out of the
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building, of property being delivered to or taken from the premises by Tenant,
Tenant's agents, employees, contractors, licensees or visitors; (iii) to the
installation, repair or removal of the property of the Tenant in the premises
by Tenant or Tenant's agents, employees, contractors, licensees or visitors; or
(iv) to the faulty operation of any machinery, equipment, or facility installed
in the premises by or for the Tenant. The Tenant will pay the actual and
reasonable cost of any repairs made by the Landlord pursuant to this paragraph
upon presentation of bills therefor, or the Landlord may, at its option, add
such amounts to any installment or installments of rent due under this lease
and collect the same as additional rent. The liability of the Tenant under this
Article THIRD shall survive the expiration or other termination of this lease.
Except for the repairs which are the Tenant's obligations under the first
sentence of this Article THIRD (a), the Landlord, at Landlord's cost and
expense, will, upon notice of the need therefor, make the repairs required and
perform all maintenance necessary to keep the building and its fixtures,
appurtenances, facilities, equipment and systems (including the plumbing,
heating and electrical systems) in good working order.
(b) Machinery. If the Tenant shall install or maintain any business
machinery or other apparatus of any description in the premises, the operation
of which produces noise or vibration, which is transmitted beyond the premises
and the Landlord deems it necessary that the noise or vibration of such
machinery or apparatus be diminished, eliminated, prevented or confined to the
premises, the Landlord may give written notice to the Tenant, requiring that
the Tenant provide and install rubber or other approved settings for absorbing,
preventing or decreasing the noise or vibration of such machinery or apparatus
within fifteen (15) days. The judgment of the Landlord of the necessity of such
installation shall be conclusive, and the installation shall be made in such
manner and of such material as the Landlord may direct. Should the Tenant fail
to comply with such request within fifteen (15) days, the Landlord may do the
work necessary to absorb, prevent or decrease the noise or vibration of such
machinery or equipment and the Tenant will pay to the Landlord the cost of such
work upon demand or such cost may, at the option of the Landlord, be added to
any installment or installments of rent under this lease and shall be payable
by the Tenant as additional rent.
(c) Maintenance. Landlord shall at all times maintain the building in
the manner in which buildings of similar quality and character are maintained.
FOURTH: Alterations and Fixtures. (a) The Tenant
shall not make any alteration, addition or improvement in or upon
the premises, nor incur any expense therefor, without having
first obtained the written consent of the Landlord therefor. If
the Tenant shall desire to make alterations, additions or
improvements to fit out the premises for the Tenant's use which
will not adversely affect the structure of the building or the
operation of any of the systems or facilities of the building for
the use of all tenants or violate the requirements of government
hereafter referred to and if the Tenant shall furnish the
Landlord with the Tenant's plans and specifications for the
proposed alteration, addition or improvement in sufficient detail
to permit the Landlord to determine that the same will comply
with the requirements of this subdivision (a), the Landlord's
approval will not be unreasonably withheld or delayed. (The
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Tenant agrees to reimburse the Landlord for its reasonable fees, expenses and
charges for reviewing any such plans or specifications.) Notwithstanding the
foregoing, Tenant shall have no obligation to submit such plans and
specifications in connection with the mere painting of the premises or the
performance of any non-structural alteration, addition or improvement, provided
such have no effect on the building's systems and the cost thereof, in the
Tenant's reasonable estimate, will not exceed $25,000, either individually or
in the aggregate with other alterations, additions or improvements in the
twelve (12) month period immediately preceding, and provided that (i) Tenant
gives Landlord at least ten (10) days' prior notice describing such work in
reasonable detail (including Tenant's reasonably detailed estimate of the cost
thereof) and setting forth the name(s) and address(es) of the contractor(s)
whom Tenant desires to perform such work, and (ii) Tenant shall obtain all
building or other governmental permits required for such work and Landlord will
not be required to execute any documents in connection with such work or such
permits. Whenever any alterations, decorations, additions or improvements of
the premises are made by the Tenant, the Tenant shall not, knowingly, employ or
permit to be employed therein any labor which will cause strikes or labor
troubles with other employees in the building employed by the Landlord or its
contractors. All alterations, decorations, additions or improvements shall be
made and installed in a good and workmanlike manner and shall comply with all
requirements, by law, regulation or rule, of the Federal, State and City
Governments and all subdivisions and agencies thereof, and with the
requirements of the New York Fire Insurance Exchange, New York Board of Fire
Underwriters and all other bodies exercising similar functions, and shall
conform to any particular requirements of the Landlord expressed in its consent
for the making of any such alterations, decorations, additions, and
improvements. Any such work once begun shall be completed with all reasonable
dispatch, but shall be done at such time and in such manner as not to interfere
with the occupancy of any other tenant or the progress of any work being
performed by or on account of the Landlord. If requested to do so by the Tenant
in connection with the Landlord's approval of any alteration, addition or
improvement, the Landlord will advise the Tenant whether the alteration,
addition or improvement (including, without limitation, the modular partitions
and furnishings included in the Improvements installed pursuant to Article
TWENTY-SEVENTH of this lease) will be required to be removed by the Tenant at
the expiration or earlier termination of this lease or may remain upon the
premises to become the property of the Landlord. If no such advice is given by
the Landlord, the provisions of subdivision (b) of this Article shall apply.
(b) All alterations, additions or improvements, which may be made or
installed in or upon the premises (whether made during or prior to the term of
this lease or during the term of any prior lease of the premises by the
Landlord, the Tenant or any previous tenant), except the furniture, trade
fixtures and equipment (whether or not affixed to the premises) of the Tenant,
shall be conclusively deemed to be part of the freehold and the property of the
Landlord, and shall remain upon the premises, and upon any termination of this
lease, be surrendered therewith as part thereof; provided that the Landlord
may, prior to the expiration of the term, notify the Tenant that the same shall
be removed, in which event, the Tenant shall remove the same together with all
of Tenant's personal property, at its own cost and expense, at or prior to the
expiration of the term and shall
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restore and repair, at its own cost and expense, any damage or disfigurement of
the premises occasioned by such removal or remaining after such removal so as
to leave the premises in as good order and condition as they were at the time
of the making of this lease or, the Landlord at its option, may make such
restoration and repair and the Tenant will pay the cost thereof upon demand. If
any furniture or trade fixtures and other personal property of the Tenant shall
not be removed at the expiration or any other termination of this lease, they
shall, at the Landlord's option, be deemed to have been irrevocably abandoned
to the Landlord, and the Tenant shall have no further right, title or interest
therein, and the Landlord may remove the same from the premises, disposing of
them in any way which the Landlord sees fit to do, and the Tenant shall, on
demand, pay to the Landlord the expense incurred by the Landlord for the
removal thereof, as well as the cost of any restoration of the premises above
provided. The Tenant's obligations under this subdivision (b) of this Article
FOURTH shall survive the expiration of this lease.
(c) Notwithstanding anything to the contrary in paragraph (b) above, it
is understood and agreed that upon the expiration or early termination of this
lease, the Tenant shall be under no obligation to remove the Improvements to be
made to the premises pursuant to Article TWENTY-SEVENTH hereof.
(d) The Landlord may at any time during the term of this lease change
the arrangement or location of the entrances or passageways, doors and
doorways, and the corridors, elevators, stairs, toilets or other parts of the
building used by the public or in common by the Tenant and other Tenants
(including, without limitation, the conversion of elevators from a manually
operated to an automatic self-service basis) provided the same does not
materially interfere with Tenant's business. The Landlord agrees that in
performing any work permitted by this paragraph, it will, to the extent
practicable, use reasonable efforts to minimize any interference or disruption
of the Tenant's business and operation. The Landlord may alter the staffing of
the building and the scale and manner of the operation thereof, provided that
the services to which the Tenant is entitled as specified in this lease are not
diminished, and may alter the facilities, fixtures, appurtenances and equipment
of the building as it may deem the same advisable, or as it may be required so
to do by any governmental authority, law, rule or regulation. The Landlord may,
after reasonable notice, change the name, street number or designation by which
the building is commonly known.
FIFTH: Compliance with Governmental Rules and Regulations. Tenant shall
promptly comply, at the Tenant's own expense, with all laws, ordinances,
regulations and requirements of the City, State and Federal Governments, and
all subdivisions and agencies thereof, and of the New York Fire Insurance
Exchange, the New York Board of Fire Underwriters, and of any fire insurance
rating organization, and of all other departments; bureaus, officials, boards
and commissions with regard to the premises, or the use thereof by the Tenant,
provided that the Tenant shall not be required to make any structural
alterations or additions to the premises, except where the same are required by
reason of the Tenant's negligence or the negligence of Tenant's employees,
agents, contractors, visitors or licensees. The Tenant will not permit the
maintenance of any nuisance upon the premises or permit its employees, agents,
contractors, licensees or visitors to do any illegal act therein, or in and
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about the building after notice thereof from the Landlord. If any such law,
ordinance, regulation or requirement shall not be promptly complied with by the
Tenant within a reasonable time after notice thereof from the Landlord, then
the Landlord may, at its option, enter upon the premises to comply therewith,
and should any fine or penalty be imposed for failure to comply therewith or by
reason of any such illegal act, the Tenant agrees that the Landlord may, at its
option, pay such fine or penalty, which the Tenant agrees to repay to the
Landlord, with interest from the date of payment, as additional rent. Landlord
will not discriminate against Tenant in enforcing the rules and regulations
promulgated by Landlord for the building.
SIXTH: Compliance with Landlord's Rules. The Tenant and the Tenant's
employees, and any other persons subject to the control of the Tenant, shall
well and faithfully observe all the rules and regulations annexed hereto, and
also any and all reasonable rules and regulations affecting the premises, the
building or the equipment, appurtenances, facilities and services thereof,
hereafter promulgated by the Landlord, all of which shall be applied and
enforced by the Landlord without discrimination. The Landlord may at any time,
and from time to time, prescribe and regulate the placing of safes, machinery,
quantities of supplies and other things, and regulate which elevator and
entrance shall be used for the Tenant's shipping and receiving subject to the
provisions of Article TWENTY-THIRD: and may make such other and further rules
and regulations as in its judgment may, from time to time, be needed or
desirable for the safety, care or cleanliness of the building and for the
preservation of good order therein.
SEVENTH: Landlord's Access to the Premises. (a) The shall, without in
any way affecting the Tenant's obligations hereunder, and without constituting
any eviction, permit the Landlord and its agents: (i) at all reasonable hours
and upon reasonable notice, to enter the premises and have access thereto, for
the purpose of inspecting or examining them and to show them to other persons;
and (ii) to enter the premises to make repairs (including specifically access
to the air conditioning equipment rooms), and to do any work on the premises
and any work in connection with excavation or construction on any adjoining
premises or property (including, but not limited to, the shoring up of the
building) and to take in any of the foregoing instances, any space needed
therefor. The Tenant shall permit the Landlord to erect and maintain ducts,
pipes and conduits in and through the premises. In the exercise of the rights
of the Landlord reserved under clause (ii) or under the sentence of this
subdivision (a) of Article SEVENTH immediately preceding this one, the Landlord
will do so in a manner which minimizes the interference with the Tenant's use
of the premises so far as practicable and where ducts, pipes or conduits are to
be erected through the premises will locate them along walls or ceilings
wherever practicable and in locations which will not materially adversely
affect Tenant's use of the-premises.
(b) In the event that the premises shall, in the Landlord's judgment,
become substantially vacated before the expiration of this lease, or in the
event that the Tenant shall be removed by summary proceedings, or in the event
that, during the last month of the term, the Tenant shall have removed all or
substantially all of the Tenant's property therefrom, the Landlord may
immediately enter into and upon said premises for the purpose of decorating,
renovating or otherwise preparing the
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same for a new tenant, without thereby causing any abatement of rent or
liability on the Landlord's part for other compensation, and such acts shall
have no effect upon this lease.
(c) In the event of an emergency or if the Tenant shall not permit the
Landlord to have access to the premises as required by paragraph (a) above,
then when for any reason access shall be necessary or permissible hereunder,
the Landlord or the Landlord's agents, may enter the same by a master key, or,
in the case of an emergency, may forcibly enter the same without rendering the
Landlord or such agents liable therefor (if during such entry the Landlord
shall accord reasonable care to the Tenant's property) and without in any
manner affecting the obligations and covenants of this lease, and in no event
shall any such entry by the Landlord or its agents be deemed an acceptance of a
surrender of this lease, either expressed or implied, nor a waiver by the
Landlord of any covenant of this lease on the part of the Tenant to be
performed.
EIGHTH: Electric Current. (a) Electric current is initially to be
supplied by the Landlord. The Tenant covenants and agrees to purchase the
Tenant's requirements therefor at the premises from the Landlord or the
Landlord's designated agent at 108% of the rates set forth in the rate schedule
of Consolidated Edison Company of New York, Inc. then applicable to the
building (or the conjunctional group in which the building is included), plus
any sales or use tax or other governmental charge or levy; provided, however,
that if such rate schedule includes any adjustment for time-of-day for either
demand or consumption, the rate applicable to the Tenant's demand for and
consumption of electricity, shall be that specified for the peak period. The
calculation of the rate shall include the effect of all direct and indirect
charges which affect the cost of the electricity, including without limitation,
consumption charges, demand charges and fuel cost escalation charges.
(b) Should the Landlord at any time, be prevented from furnishing the
foregoing service due to a change of rate or a regulation of the Public Service
Commission or due to any rate or regulation of the public utility corporation
serving the building, or if the Landlord for any other reason determines to
discontinue the service, the Landlord may do so, and will give the Tenant not
less than ninety (90) days' notice of the date on which the service will be
discontinued. Beginning with the date on which such service by the Landlord is
discontinued, the Tenant shall purchase its requirements for electric current
from the public utility serving the area directly. The Landlord shall permit
the Landlord's wires and conduits, to the extent to which they are safely
available for such use and the extent to which they may be so used under any
applicable regulations (including those of such public utility) to be used for
the purpose. Should any additional or other wiring, conduits, meters or
distribution equipment be required in order to permit the Tenant to receive
such direct service, the same will be installed by the Landlord at the sole
cost and expense of the Tenant in respect to the wiring, conduits, meters and
distribution equipment. Landlord may, at its sole option, determine that a
single meter will be utilized for the premises for electric billing purposes.
In the event the Landlord uses two meters, the electric charges will be
calculated on a conjunctional billing basis.
NINTH: Condemnation. (a) if the whole of the building or of the
premises shall be taken by condemnation or in
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any other manner for any public or quasi-public use or purpose (other than for
temporary use or occupancy), the term of this Lease ("Lease Term") shall
forthwith cease and terminate as of the date of vesting of title by reason of
such taking (which date is hereinafter referred to as the "date of the
taking"), and the rent shall be apportioned as of such date. If a portion of
the building shall be so taken so that substantial structural alterations or
reconstruction of the building shall be necessary as a result of such taking
(whether or not the premises be affected), which alterations or reconstruction
Landlord reasonably determines will take at least 180 days to complete, or if
50% or more of the common areas of the building are taken, Landlord or the
Tenant by notifying the other party in writing of such termination within sixty
(60) days following the date of the taking may, at its option, terminate this
Lease and the Lease Term and estate hereby granted will terminate sixty (60)
days after receipt of such termination notice.
(b) If any part, but less than all, of the premises shall be so taken
and this Lease shall not be terminated pursuant to Paragraph (a) of this
Article NINTH, then the part so taken shall no longer constitute part of the
premises but this Lease shall otherwise remain unaffected by such taking;
provided, however, that Tenant may elect to terminate the Lease Term in the
event of:
(i) a taking of more than 50% of the total rentable
area of the premises, or
(ii) a taking that has a material adverse effect on Tenant's
access to the building or the premises or the loading dock, if Landlord
determines that it will be unable to provide adequate alternative
access to the building and the premises within 180 days thereafter,
by giving notice of such election to Landlord not later than sixty (60) days
after Tenant's receipt from Landlord of notice of such taking or the date of
such taking, whichever first occurs, or not later than thirty (30) days after
such one hundred eightieth day, as the case may be. If notice of termination of
this Lease shall be given pursuant to this Section, then upon such date as may
be specified by Tenant by notice to Landlord, which date shall be not earlier
than thirty (30) and not later than sixty (60) days after the date of Tenant's
notice, the Lease Term shall terminate as of the date specified in such notice
and the rent shall be apportioned as of such date of termination. Upon a
partial taking and this Lease continuing in force as to any part of the
premises:
(x) the fixed rent and additional rent shall be equitably
reduced for the remainder of the Lease Term, according to the nature
and extent of the loss of use of the premises suffered by Tenant; and
(y) Landlord shall, at its expense, restore with reasonable
diligence the remaining portions of the premises as nearly as
practicable to the same condition as it was in prior to such
condemnation or taking.
(c) In the event of any condemnation or taking hereinabove
mentioned of all or a part of the building (whether or not the premises be
affected), Landlord shall be entitled to receive the entire award in the
condemnation proceeding, Tenant
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shall have no claim for the value of any unexpired term of the Lease, and
Tenant hereby expressly assigns to Landlord any and all right, title and
interest of Tenant now or hereafter arising in or to any such award or any part
thereof, and Tenant shall be entitled to receive no part of such award. The
foregoing, however, shall not be deemed to preclude Tenant from seeking to
recover a separate award for Tenant's moving expenses and Tenant's personal
property, but only provided that such award does not reduce and is not payable
out of the amount for the land and the building.
TENTH: Mechanic's Liens. The Tenant will not permit, during the term
hereby granted, any mechanic's or other lien or order for payment of work,
labor, services, or materials furnished or to be furnished to attach to or
affect the premises or any portion thereof, and agrees that it will not cause
or permit any such lien or order to attach to or affect the fee, leasehold or
other estate of the Landlord herein, or the building. The Tenant's obligation
to keep the premises in repair, and its right to make alterations therein, if
any, shall not be construed as the consent of the Landlord to the furnishing of
any such work, labor or materials within the meaning of any present or future
lien law. Notice is hereby given that the Tenant has no power, authority or
right to do any act or to make any contract which may create, or be the
foundation for, any lien upon the fee or leasehold estate of the Landlord in
the premises or upon the land or buildings of which they are a part or the
improvements now erected or hereafter to be erected upon the premises or the
land or building of which the premises are a part; and if any such mechanic's
or other lien or order shall be filed against the premises or the land or
building of which the premises are a part, the Tenant shall, within ninety (90)
days after the Tenant has notice thereof, discharge said lien or order by
payment, deposit or by bond fixed in a proper proceeding according to law. If
the Tenant shall fail to take such action, or shall not cause such lien or
order to be discharged within ninety (90) days after the filing thereof, the
Landlord may pay the amount of such lien or discharge the same by deposit or by
bond or in any other manner according to law, and pay any judgment recovered in
any action to establish or foreclose such lien or order, and any amount so
paid, together with the expenses incurred by the Landlord, including all
attorneys' fees and disbursements incurred in any defense of any such action,
bonding or other proceeding, shall be deemed additional rent. Any reasonable
expenses incurred by Landlord in connection with the examination of title to
the premises in order to ascertain the existence of any lien or encumbrance and
the discharge of record thereof, shall be payable by Tenant to Landlord on
demand, together with interest as aforesaid, as additional rent.
ELEVENTH: Subordination. (a) This lease, and all
the rights of the Tenant hereunder, are and shall be subject and
subordinate to any and all mortgages now or hereafter liens
either in whole or in part on the building, or the land on which
it stands, and also to any and all other mortgages covering other
lands or lands and buildings, which may now or hereafter be
consolidated with any mortgage or mortgages upon the buildings
and the land on which it stands or which may be consolidated and
spread to cover the building and such land and any such other
land or lands and buildings, and any extension, renewal or
modification of any such mortgages, and to any and all underlying
leases on record, or hereafter to be recorded, against the
building or the land on which it stands, and any extensions,
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renewals or modifications thereof. The Tenant hereby constitutes and
irrevocably appoints the Landlord the Tenant's attorney in fact to execute any
instrument or certificate evidencing such subordination for and on behalf of
the Tenant.
(b) The Tenant hereby agrees that, in the event that any mortgagee
shall succeed to the rights of the Landlord herein named, or if any landlord of
any underlying lease shall succeed to the position or the Landlord under this
lease, then the Tenant will recognize such successor Landlord as the Landlord
of this lease and pay the rent and attorn to and perform the provisions of this
lease for the benefit of any such successor Landlord. No documentation other
than this lease shall be necessary to evidence such attornment but Tenant
nevertheless agrees to execute any documentation reasonably requested by the
successor Landlord to confirm such attornment or to otherwise carry out the
intent and purposes of the provisions of this Article ELEVENTH.
(c) Anything herein to the contrary notwithstanding, the Landlord
represents and warrants to Tenant that as of the date of this lease there is no
mortgage or superior lease encumbering the premises.
(d) If, in connection with obtaining temporary or permanent financing
for the land and/or building, or any underlying lease, any lender shall request
reasonable modifications of this lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or defer the execution of an agreement of
modification of this Lease provided such modifications do not increase the
monetary obligations of Tenant hereunder or materially adversely affect the
leasehold interest hereby created, or Tenant's rights hereunder or materially
interfere with Tenant's business or access rights provided in Article
TWENTY-THIRD.
TWELFTH: Liquors. Neither the Tenant nor any occupant of the premises,
or of any part thereof, shall at any time during the continuance of the term,
sell, traffic in, expose for sale, dispense or give away, upon any part of the
premises, any strong or spirituous liquor, wine, ale or beer, or take or have a
license for such sale, except that it is understood that as a part of the
Tenant's customer relations in its business, the Tenant may from time to time
serve alcoholic beverages to customers at the premises. No charge will be made
for such dispensation or service. Such service of alcoholic beverages will not
be deemed a default or violation under paragraph TWELFTH hereof. In no event
shall Tenant dispense or give away any alcoholic beverage to any employee of
the Landlord.
THIRTEENTH: Fire and Fire Insurance. (a) If the premises shall be
damaged by fire, action of the elements or other casualty or cause which is
within the risks or the insurance carried by the Landlord, the Tenant shall
give immediate notice thereof to the Landlord, and said damage (unless the same
shall be due to the negligence or other fault of the Tenant or its employees)
shall be repaired by the Landlord, to a condition as close as possible as
existed prior to such fire or casualty, at the Landlord's expense, with all
reasonable speed, making due allowance for delay due to labor troubles,
settlement of loss and other causes beyond the control of the Landlord, and the
Tenant shall, in every reasonable way, facilitate the making of such repairs,
and (unless the same shall be due to the negligence or other fault of the
Tenant or its employees) the
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rent and additional rent shall be suspended during such period as the premises
shall have been rendered wholly untenantable. In the event that the premises
are rendered partially untenantable, the rent shall be abated during such
period, in the proportion which the area of the premises which is rendered
untenantable bears to the area of the whole premises, but no damage to the
premises or the building by fire, or other cause, however extensive, shall
terminate this lease, or give the Tenant the right to quit and surrender the
premises, or impair any obligation of the Tenant hereunder, (except, to the
extent permitted in the preceding sentence, with respect to the payment of
rent). Notwithstanding the preceding (i) if the damage shall be so extensive
that the Landlord shall determine to demolish or substantially alter the
building, the Landlord may at any time within ninety (90) days following the
occurrence of the damage give to the Tenant 30 days' notice of intention to
terminate this lease; (ii) if the damage to the premises is substantial so that
the whole or substantially the whole of the premises are rendered untenantable
or if 50% or more of the common areas of the building are destroyed or
substantially damaged and the Landlord does not within 60 days following the
occurrence of the damage notify the Tenant of the Landlord's intention to
repair the damage to the premises so that the premises are again useable by the
Tenant, or if the premises are not, in fact, usable within a period of not more
than 90 days following the occurrence of the damage subject to delays due to
causes of the kinds described in Article TWENTY-SEVENTH of this lease, the
Tenant may cancel this lease by notice given within 30 days following the
expiration of the said 60-day period for the Landlord's notice of election to
repair or 60 days after the expiration of the 90 day period, as the case may
be; and (iii) in the event of the occurrence of damage to the premises of the
degree described above in clause (ii) of this paragraph (a), the Landlord may
also elect to terminate this lease by notice of election to do so given within
60 days following the occurrence of the damage. If notice of election to
terminate this lease shall be given as above provided, then, upon the date for
termination designated in any such notice this lease and the term hereby
granted shall terminate and the rent shall be apportioned as of the date of the
damage or as of such later date as the Tenant may actually surrender
possession. Nothing herein contained shall be deemed to obligate the
Landlord to restore the Tenant's trade fixtures, stocks, furnishings or other
personal property of the Tenant.
(b) The Tenant shall conduct its business and use the premises in such
a manner so as not to increase the rate of insurance applicable to the building
or the property of other tenants, and the Tenant shall install and maintain all
its furniture, fixtures, equipment; stocks and materials in such a manner as to
accomplish the foregoing purposes. The Tenant further agrees not to permit any
act to be done or anything brought into or kept upon the premises which will
void or avoid the insurer's liability under any contract of fire insurance on
the building or its contents (containing normal and usual exemptions) or any
actions which will substantially increase the Landlord's cost of such insurance
and in the event of such increase due to any action of the Tenant, Tenant's
employees, agents, contractors, visitors or licensees, the Tenant agrees to pay
to the Landlord, on demand, the additional cost of such insurance, or, at the
option of the Landlord, the same may be added to any installment of rent and be
payable as additional rent. The schedule of the makeup of a rate issued by an
authorized rating organization shall be conclusive evidence of
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the facts therein stated and of the items in the rate applicable
to the premises.
(c) The Landlord, as to the premises, and the Tenant, as to the
improvements made therein at the Tenant's expense and all of the Tenant's
stock, trade fixtures and other property in the premises, hereby release one
another from all liability for any loss or damage caused by fire or any of the
risks enumerated in standard extended coverage insurance. This release is
conditioned upon the inclusion in their respective policies of insurance, if
any, of a provision stating that such release shall not adversely affect said
policies or prejudice any right of the insured to recover thereunder. The
Landlord and Tenant agree that their respective insurance policies will include
a waiver of subrogation provision so long as the same is obtainable without
extra cost or if extra cost be charged, so long as the party for whose benefit
the clause is obtained shall pay such extra cost. If extra cost shall be
chargeable therefor the party so affected shall advise the other of the amount
or the extra cost and the other party at its election may pay the same or
decline to so pay in which event the release from liability given to said party
by this Article THIRTEENTH (c) shall be deemed to be withdrawn and of no force
and effect.
FOURTEENTH: Change in Use of Premises; Subletting and Assignment. (a)
The use to be made of the premises by the Tenant and the identity of the Tenant
being among the inducements to the making of this lease by the Landlord, the
Tenant shall not, except in accordance with the terms of this Article, (i) use
or permit the premises or any part thereof to be used for any purposes other
than those specified in the lease, (ii) sublet or underlet the premises or any
part thereof, (iii) permit the premises or any part thereof to be occupied by
anyone other than the Tenant or its officers or employees, (iv) mortgage or
encumber this lease or any interest therein, (v) assign or transfer, by
operation of law or otherwise, this lease or any interest therein.
(b) The Tenant shall not, without having first obtained the Landlord's
prior written consent thereto, (i) use or permit the premises or any part
thereof to be used for any purposes other than those specified in the lease, or
(ii) mortgage or encumber this lease or any interest therein.
(c) The Tenant shall not, except in accordance with the provisions of
paragraphs (d) through (m) of this Article, (i) assign or transfer, by
operation of law or otherwise, this lease or any part therein, (ii) sublet or
underlet the premises or any part thereof, or (iii) permit the premises or any
part thereof to be occupied by anyone other than the Tenant or its officers or
employees.
(d) If the Tenant shall desire to assign this lease or to sublet the
whole or any part of the premises or to permit the premises to be occupied by
any person other than the Tenant, the Tenant will notify the Landlord as to (i)
the action which the Tenant proposes; (ii) the portion of the premises with
respect to which the tenant proposes to take such action (the "Affected
Premises"); (iii) the name and business address of the proposed assignee,
sublessee or occupant (the "Proposed Undertenant"), (iv) the name and residence
address of the officers and principal stockholders of the Proposed Undertenant,
if a corporation is involved or the names and residence addresses of the
partners thereof if a partnership or joint venture is involved; (v) the
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information, in reasonable detail, as to the Proposed Undertenant which is
required to permit the Landlord to make the determinations described in
paragraphs (f), (g) or (h) below; (vi) the terms upon which the Tenant proposes
to assign this lease or sublet the premises or permit the premises to be
occupied by the Proposed Undertenant (including the terms under which any
additions, alterations or decorations are to be made to the Affected Premises
and the terms on which the Proposed Undertenant is to buy or lease any
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property from the Tenant; and (vii) the name and address of any real
estate broker or other person to whom a commission may be owed by any person in
connection with such assignment, subleasing or occupation. (The Tenant's
notice of desire to assign, sublease or permit the occupancy of the Affected
Premises by others, with the information prescribed above is hereafter referred
to as a "Tenant's Subleasing Notice")
(e) By written notice ("Landlord's Subleasing Notice") executed by the
Landlord and delivered to the Tenant within thirty (30) days following receipt
of the Tenant's Subleasing Notice (for the purposes hereof such notice shall
not be deemed to have been received by the Landlord until all of the
information required by paragraph (d) above shall have been furnished to the
Landlord), the Landlord shall have the absolute right to select one of the
alternatives set forth in paragraphs (f), (g) or (h) below.
(f) In the event of a proposed assignment of this lease or the
subleasing or occupation of the entire premises subject to this lease for the
then remaining balance of the term of this lease, (i) the Landlord may elect to
require the Tenant to surrender the premises to the Landlord and terminate this
lease with respect to the premises on the last day of the second complete
calendar month following the Tenant's Subleasing Notice and comply with the
provisions of this lease respecting surrender at the end of the term not later
than such date or (ii) the Landlord may give its consent to any such
assignment, sublease or occupation. Any subletting or occupancy by a third
party as a consequence of which 25% or less in an area of the Premises shall
remain in occupancy by the Tenant herein named may, at the Landlord's option,
be considered a subleasing of the whole of the Premises.
(g) In the event of a proposed subleasing or occupation of less than
the entire premises subject to this lease or the entire premises for less than
the then remaining balance term of this lease, (i) the Landlord may elect to
require the Tenant to surrender to the Landlord and vacate the Affected
Premises not later than the date upon which the proposed subleasing or
occupation is proposed to commence and comply on such date with the provisions
of this lease as to surrender on the Expiration Date with respect to the
Affected Premises, and the Tenant shall, at its expense, erect the partitioning
required to separate the Affected Premises from the remainder of the premises,
create any doors required to provide an independent means of access to the
affected Premises from elevators and lavatories and to segregate the wiring and
meters and electric current facilities, so that the Affected Premises may be
used as a unit for commercial purposes, separate from the remainder of the
premises remaining in occupation of the Tenant; in which event the rent and all
additional rent payable under this lease shall be reduced proportionately with
the diminution in the area
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of the premises upon surrender of the Affected Premises; or (ii) the Landlord
may give its consent to any such sublease or occupation and thereupon the
provisions of paragraphs (1), (p) and (q) below, will be implemented.
(h) Notwithstanding any other provision herein, in the event that
Landlord does not select one or more of the alternatives set forth in
paragraphs (f) or (g) of this Article following receipt of Tenant's Subleasing
Notice, then Landlord agrees not to unreasonably withhold or delay its consent
to any proposed subleasing or assignment, provided, however, that the Landlord
shall have the right to condition its consent to any proposed sublease of all
or a portion of the premises on the following:
(i) The Tenant shall not be in default in the payment of rent
or in the performance of any other of its obligations under this lease,
the time to cure having expired.
(ii) The Tenant shall have delivered to the Landlord a Tenant's
Subleasing Notice as required by subparagraph (d) above.
(iii) The Tenant shall assign to the Landlord, and grant the
Landlord a security interest in, the sublease and the rents payable
thereunder and shall take all necessary steps required to perfect such
assignment and security interest.
(iv) The sublease shall include provisions to the effect that
(x) if the Landlord shall notify the sublessee that the Tenant is in
default in the payment of rent or in the performance of its other
obligations under this lease, the sublessee shall, if so requested by
the Landlord, pay all rent and other amounts due under the sublease
directly to the landlord, (y) notwithstanding any such payment by the
sublessee directly to the Landlord, the term of the sublease shall
terminate simultaneously with the termination of the term of this lease
and the sublessee shall surrender the subleased premises upon such
termination, and (z) it is subject and subordinate to this lease and to
all matters to which this lease is or shall be subordinate.
(v) The proposed subtenant shall have a financial standing, be
of a character, be engaged in a business, and propose to use the
premises or portion thereof to be sublet in a manner, which in the
Landlord's reasonable judgment, is in keeping with the Landlord's
standards in such respect of the other office tenancies in the
building.
(vi) The proposed subtenant shall not then be a tenant,
subtenant or assignee of any space in the building, nor shall the
proposed subtenant be a person or entity with whom the Landlord is then
actively negotiating to lease space in the building.
(vii) The character of the business to be conducted or the
proposed use of the premises by the proposed subtenant shall not (x) be
likely to increase the Landlord's operating expenses beyond that which
would be incurred for use by the Tenant or for use in accordance with
the
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standards of use of other tenancies in the building, (y) increase the
burden on elevators over the burden prior to such proposed subletting,
or (z) violate or be likely to violate any provisions or restrictions
contained herein relating to the use or occupancy of this lease.
(viii) Any proposed sublease shall provide that in the event of
the termination of this lease, or the re-entry or dispossession of the
Tenant by the Landlord under this lease, such subtenant shall, at the
Landlord's option, attorn to the Landlord as its sublessor pursuant to
the then applicable terms of such sublease for the remaining term
thereof, except that the Landlord shall not be (X) liable for any
previous act or omission of Tenant as sublessor under such sublease,
(y) subject to any offset which theretofore accrued to such subtenant
against the Tenant, or (z) bound by any previous modification of such
sublease not consented to in writing by the Landlord or by any previous
prepayment of rent more than one month in advance.
(ix) Tenant shall pay all of Landlord's reasonable costs
(including attorneys fees and expenses) related to Landlord's review of
proposed sublease or assignment and the preparation, review and
approval of any assignment of rents, financing statement and other
documents related to such sublease or assignment. Tenant shall also pay
the cost of recording or filing any assignment of rents and financing
statements.
(j) if the Landlord's Subleasing Notice shall be to the effect that the
Landlord elects that the Affected Premises be surrendered, then, unless within
ten business days following Tenant's receipt of the Landlord's Subleasing
Notice, time being of the essence, the Tenant notifies Landlord in writing that
it rescinds Tenant's Subleasing Notice, the Affected Premises shall be
surrendered in accordance with clause (i) of paragraph (f) or (g) above, as the
case may be, and any work required to be done to separate the Affected Premises
from the remainder shall be commenced promptly following the Tenant's receipt
of the Landlord's Subleasing Notice and carried on with diligence and
continuity. If Tenant rescinds its Tenant's Subleasing Notice in accordance
with this paragraph, Tenant shall not be permitted to submit another Tenant's
Subleasing Notice for a period of six month's thereafter.
(k) Provided Tenant is in compliance with all other provisions of this
lease, the Tenant is authorized to sublease portions of the premises to a
subsidiary corporation or corporations or to a corporation affiliated with the
Tenant, and the provisions of paragraph (e) through (j) of this Article and the
provisions of paragraph (1) of this Article shall not apply to such subleasing.
A subsidiary corporation means a corporation of which the Tenant owns and holds
at least a majority of each class of stock which is authorized to vote at the
time when the sublease is executed. An affiliated corporation shall mean a
corporation which is owned and controlled by the corporation or the individuals
which own and control the Tenant by ownership of at least a majority of each
such class of stock. Before making any sublease to any such subsidiary or
affiliated corporation, the Tenant shall certify to the Landlord the manner in
which such subsidiary or affiliated corporation is related to and controlled by
the Tenant and the purposes for which the subleased premises
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will be used. Subject to the provisions of this Article FOURTEENTH, and
provided that, at the time of such subleasing, the particular corporation is a
subsidiary of Tenant, Landlord shall not unreasonably withhold or delay its
consent to a subleasing to SMA Real Time Inc., SMA Visual Effects Corp. or Fly
Films, Inc.
(1) In the event the Landlord, in its sole discretion, authorizes
Tenant to sublet (other than the subleasing authorized by paragraph (k) above)
or assign all or a portion of the premises, the Tenant shall pay to the
Landlord, monthly, as additional rent, 50% of all Subleasing Profit.
"Subleasing Profit" shall mean all consideration received by the Tenant (other
than rental received by Tenant under a sublease entered into pursuant to
paragraph (k) of this Article), less (i) the rent, additional rent payable by
the Tenant under this lease for the period in question (exclusive of any amount
payable by the Tenant under this subparagraph (1)), (ii) any brokerage
commissions (not exceeding 110% of those set forth in Landlord's brokerage
commission schedule as published from time to time) and reasonable legal fees
paid by the Tenant in connection with such subletting and assignment, (iii) the
unamortized cost of demising and improving the premises for subtenant, and (iv)
any amounts paid by Tenant to subtenant as a cash or rental concession.
(m) No consent given by the Landlord shall be deemed to permit any act except
the act to which it specifically refers, or to render unnecessary any
subsequent consent, and any assignment or subletting of the premises shall not
relieve the Tenant or any mesne assignee from any obligations, duty or covenant
under this lease, and in all cases a violation of any of the covenants or
duties or obligations under this lease by a subtenant or assignee shall, in
addition, be deemed to be the act of the Tenant herein. No assignment,
transfer, mortgage, encumbrance, subletting or arrangement in respect of the
occupancy of the premises shall create any right in the assignee, transferee,
mortgagee, subtenant or occupant, unless the consent of the Landlord shall
first have been obtained, and unless, if an assignment is involved, the
transferee or assignee shall have delivered an agreement duly executed by the
assignee or transferee wherein the assignee or transferee assumes and agrees to
pay or otherwise keep and perform the obligations of the Tenant in this lease
or, if a sublease is involved wherein the sublessee agrees that any act or
omission by the sublessee which, if performed or omitted by the Tenant under
this lease would be a default thereunder, shall also be a default under the
provisions of the sublease. Any assignee by accepting an assignment shall
nevertheless be conclusively deemed to have assumed this lease and all
obligations already accrued or to accrue thereunder and further to have agreed
to fully and duly perform all the Tenant's covenants herein contained. If the
Tenant shall, at any time, be in default in the payment of rent, the Landlord
shall have the right to collect rent from any assignee, undertenant or
occupant, and credit the same to the account of the Tenant, and no such
collection shall constitute a waiver of the foregoing covenant or the
acceptance of anyone other than the Tenant, as Tenant, or shall otherwise
release, impair or otherwise affect any obligation of the Tenant under this
lease. Immediately following the execution and delivery of any assignment of
this lease or any subleasing of the premises or an agreement as to the
occupancy thereof, the Tenant will furnish a duplicate of the instrument in
question to the Landlord.
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(n) Anything herein to the contrary notwithstanding, the Tenant may not
assign this lease or sublet or permit the occupancy by any other party of all
or any part of the demised premises at any time when the Tenant has not paid
any rent and additional rent when it is payable. The Tenant shall furnish
Landlord with a counterpart (which may be a conformed or reproduced copy) of
each sublease, assignment or agreement of occupancy made hereunder within ten
days after the date of its execution. Tenant shall remain fully liable for the
performance of all of Tenant's obligations hereunder notwithstanding anything
provided for herein, and without limiting the generality of the foregoing,
shall remain fully responsible and liable to Landlord for all acts and
omissions of any subtenant, assignee or occupant or anyone claiming under or
through any such person which shall be in violation of any of the obligations
of this lease and any such violation shall be deemed to be a violation by
Tenant. Tenant shall pay Landlord on demand any cost or expense (including
attorneys' fees and expenses) which Landlord may be required to incur in acting
upon any request for consent pursuant to this Article.
(o) At the request of the Landlord, the Tenant will furnish to the
Landlord, within ten days of a receipt of a request therefor, a certificate
executed in the name and on behalf of the Tenant, confirming that, except as
previously consented to in writing by the Landlord or as otherwise specifically
set forth in such certificate or permitted herein, the Tenant has not (i) used
or permitted the premises or any part hereof to be used for any purposes other
than those specified in this lease, (ii) mortgaged or encumbered this lease or
any interest therein, (iii) assigned or transferred, by operation of law or
otherwise, this lease or any interest, therein, (iv) sublet or underlet the
premises or any part thereof, or (v) permitted the premises or any part thereof
to be occupied by anyone other than the Tenant or its officers or employees.
With respect to any exception to clauses (i) through (v) above to which the
Landlord has not previously consented in writing, the Landlord, in its sole
discretion, may either consent thereto (which consent may be subject to any
conditions specified by the Landlord) or exercise the rights and remedies
available to the Landlord under the terms of this lease.
(p) Tenant assumes and shall be responsible for and liable to Landlord,
for all acts and omissions on the part of any present or future subtenant, and
any violation of any of the terms, provisions or conditions of this Lease,
whether by act or omission by any subtenant, shall constitute a violation by
Tenant. Upon any termination of this lease, it is expressly agreed that Tenant
shall deliver to Landlord all subleases, security deposits (including
interest), contracts, documents, rent rolls and other records used in the
operation of the premises and, unless the sublease shall have previously
terminated and the security deposit returned to subtenant or applied as
provided by the sublease, all security deposits held by Tenant.
(q) With respect to any present or future subleases Tenant shall not
accept prepayment of rent prior to its due date in excess of one month (but the
provisions of the foregoing shall not prohibit Tenant from collecting from any
subtenant a security deposit provided such security deposit is delineated in
the sublease as being not advance rent, but security, returnable to the
subtenant after the termination of the term of the sublease).
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Tenant agrees to indemnify and save Landlord harmless from and against any
claim or lien against Landlord or the demised premises for the return of any
securities under any leases with subtenants which were not previously delivered
to Landlord and agrees further that all leases hereafter made with subtenants
shall provide that the lease security deposited by the subtenant shall not be a
lien or claim against the interest of the Landlord.
FIFTEENTH: Waiver and Surrender; Remedies Cumulative. No consent or
waiver of any provision hereof or acceptance of any surrender shall be implied
from any act or forbearance by the Landlord. No agreement purporting to accept
a surrender of this lease, or to modify, alter, amend or waive any term or
provision thereof, shall have any effect or validity whatever, unless the same
shall be in writing, and executed by the Landlord and by the Tenant, and be
duly delivered, nor shall the delivery of any keys to anyone have any legal
effect, any rule or provision of law to the contrary notwithstanding. Any
consent, waiver or acceptance of surrender, in writing, and properly executed
and delivered as aforesaid, shall be limited to the special instance for which
it is given, and no superintendent or employee, other than an officer of the
Landlord or of its managing agent, and no renting representative shall have any
authority to accept a surrender of the premises, or to make any agreement or
modification of this lease, or any of the terms and provisions hereof. No
provision of any lease made by the Landlord to any other tenant of the building
shall be taken into consideration in any manner whatever in determining the
rights of the Tenant herein. No payment by the Tenant or receipt by the
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than an account of the stipulated rent, nor shall any
endorsement on any check, nor any letter accompanying any such payment of rent
be deemed an accord and satisfaction (unless an agreement to accept a lesser
amount be signed by the Landlord), but the Landlord may accept such payment
without prejudice to the Landlord's full right to recover the balance of such
rent and to institute summary proceedings therefor. The receipt by the Landlord
of any rent, or additional rent or of any other sum of money which may be
payable under this lease,, or of any portion thereof, shall not be deemed a
waiver of the right of the Landlord to enforce the payment of any sum of any
kind previously due or which may thereafter become due under this lease, or of
the right to forfeit this lease by such remedies as may be appropriate, or to
terminate this lease or to exercise any of the rights and remedies reserved to
the Landlord hereunder, and the failure of the Landlord to enforce any covenant
or condition (although the Tenant shall have repeatedly or continuously broken
the same without objection from the Landlord) shall not estop the Landlord at
any time from taking any action with respect to such breach which may be
authorized by this lease, or by law, or from enforcing said covenant or any
other covenant or condition on the occasion of any subsequent breach or
default. In the event of any continuing or threatened breach by the Tenant, the
Landlord shall have the right of injunction. The various rights, remedies,
powers and elections of the Landlord, as provided in this lease or created by
law, are cumulative, and none of them shall be deemed to be exclusive of the
others, or of such other rights, remedies, powers or elections as are now or
may hereafter be conferred upon the Landlord by law.
SIXTEENTH: Representations as to Premises, Certif-
icate of Occupancy and Use. (a) Landlord represents that
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attached hereto as Exhibit B is a true and correct copy of the certificate of
occupancy for the building. The Tenant represents to the Landlord that the
Tenant has made, or caused to be made, a careful inspection of the premises and
that the Tenant has made an examination of the building and that the area and
present condition of the premises are in all respects satisfactory to the
Tenant, except as may herein otherwise be expressly stated in the Work Letter
attached to this lease and in Article TWENTY-SEVENTH hereof. The Tenant
acknowledges that no representations or promises have been made by the Landlord
or the Landlord's agents with respect to the premises or the building or the
certificate of occupancy thereof, except as in this lease set forth. The
statements contained in this lease regarding the use of the premises by the
Tenant shall not be deemed a representation or warranty by the Landlord that
such use is lawful or permitted by the certificate of occupancy of the
building.
(b) The Tenant shall immediately discontinue any use of the demised
premises, which may, at any time, be claimed or declared by the City or State
of New York or other governmental authority to be in violation of or contrary
to the certificate of occupancy of the building, or by reason of which any
attempts may be made to penalize the Landlord or require the Landlord to secure
any certificate of occupancy other than the one now issued for the building.
SEVENTEENTH: Limitation of Landlord's Liability. (a) The Tenant shall
make no claim upon the Landlord for abatement of rent, constructive eviction,
rescission, or otherwise, and the Landlord shall be exempt from all liability,
except for injuries to the Tenant's person or property which are due to the
negligence of the Landlord, its agents, servants or employees in the management
of the premises or the real property of which the demised premises are a part,
for or on account of any annoyance, inconvenience, interference with business,
or other damage, caused by: (i) any interruption, malfunction or curtailment of
the operation of the elevator service, heating plant, sprinkler system, gas,
water, sewer or steam supply, plumbing, machinery, electric equipment or other
appurtenances, facilities, equipment and conveniences in the building, whether
such interruption, malfunction or curtailment be due to breakdowns, or repairs,
or strikes or inability to obtain electricity, fuel or water due to any such
cause or any other cause beyond the Landlord's control; (ii) any work of repair
or restoration done by or on behalf of the Landlord or the Tenant, pursuant to
the provisions of this lease; (iii) any water, rain, snow, steam, gas,
electricity or other element, which may enter, flow from or into the premises
or any part of the building, or any noise or vibration audible in, or
transmitted to the premises; (iv) any vermin; (v) any falling paint, plaster or
cement; (vi) any interference with light or with other easements or incorporeal
hereditaments; (vii) any latent defect or deterioration in the building or the
appurtenances thereof, whether or not the Landlord shall have been notified of
any condition allegedly causing same; (viii) any zoning ordinance or other acts
of governmental or public authority now or hereafter in force; and (ix) any act
or omission of any other occupant of the building or other person temporarily
therein. The Tenant will not hold the Landlord liable for any loss or theft of,
or damage to, any property in the premises done or caused by any employee,
servant, or agent of the Landlord who is invited into the premises by the
Tenant, nor for the loss, damage or theft of
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any property stored or left in the basement or in any other part of the
building, which is not enclosed within the premises or of any property left
with any employee of the Landlord, notwithstanding such theft, loss or damage
may occur through carelessness or negligence of the Landlord's employees; and
the Tenant agrees that any employee in entering the premises at the invitation
of the Tenant or accepting custody of property shall be then deemed agent of
the Tenant or other person at whose instance he may be acting, and not agent of
the Landlord. Employees are not permitted to receive or accept packages or
property for account of Tenants. Storerooms or storage space for personal
property (if provided) are provided gratuitously by the Landlord, and the use
of same shall be at the Tenant's risk and the Tenant will not hold the Landlord
liable for any loss of or damage to person or property therein or thereby.
Nothing in this lease contained shall impose any obligation upon the Landlord
with respect to any real property other than the building, whether said other
real property be owned by the Landlord or otherwise, or shall in any way limit
the Landlord's right to build upon or otherwise use said other real property in
such manner as the Landlord may see fit. The Tenant shall make no claim upon
the Landlord for abatement of rent, constructive eviction or rescission, and
the Landlord shall have no liability by reason of the Landlord's failure to
enforce the provisions of the lease to any other tenant against such other
tenant. Notwithstanding anything herein to the contrary, no partner, officer,
agent or employee of Landlord shall be liable for Landlord's obligations under
this lease and Tenant shall not look to any property or assets of the Landlord
other than Landlord's estate in the land and building of which the premises are
a part, or to the property or assets of any partner, officer, agent or employee
of Landlord in seeking to enforce landlord's obligations under this lease or to
satisfy a judgment for Landlord's failure to perform such obligations.
(b) Any right and authority reserved by and granted to the Landlord
under this lease, to enter upon and make repairs in the premises shall not be
taken as obligating the Landlord to inspect and to repair the premises and the
Landlord hereby assumes no responsibility or liability for the care,
inspection, maintenance, supervision, alteration or repair of the premises,
except as herein specifically provided. The Tenant assumes possession and
control of the premises and exclusively the whole duty of care and repair
thereof, except as herein specifically provided, and the duty of care, if any,
owed by the Tenant to persons on the sidewalk and in the corridors of the
building.
EIGHTEENTH: Indemnity by Tenant. The Tenant hereby indemnifies and
agrees forever to save harmless the Landlord against any and all liabilities,
penalties, claims, damages, expenses (including attorneys' and counsel fees and
disbursements) or judgments, arising from injury to person or property of any
kind, to the extent occasioned by the Tenant's failure to perform or abide by
any of the covenants of this lease or the negligent or wilful misconduct of the
Tenant or Tenant's employees, customers, agents, contractors, licensees,
visitors, assigns or under-tenants of the Tenant, or to the extent based on any
matter or thing growing out of the Tenant's use or occupation of the premises
or any part of the building.
NINETEENTH: Insolvency. If, at any time after the execution and
delivery of this lease, the Tenant shall be adjudicated a bankrupt, or if the
Tenant shall make any
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assignment for the benefit of creditors, or attempt to take the benefit of any
insolvency law, or if a petition or answer to reorganize the Tenant shall be
approved by any court or judge, or if a petition or answer for a composition or
extension shall be filed by the Tenant, or if a receiver or trustee shall be
appointed for the Tenant's property, or if the Tenant's interest in this lease
shall be attached or levied upon or shall devolve upon or pass to any party
other than the Tenant (whether such event occurs prior or subsequent to the
commencement of the term or Tenant's entry into possession) such event shall be
conclusively deemed a default hereunder, and the Landlord shall have the right
to terminate this lease in the manner hereinafter provided, as if such event
were a breach by the Tenant of one of the covenants of this lease. In the event
of such termination, the Tenant or any person claiming under, by or through the
Tenant, by virtue of any statute or of any order of any court, shall not be
entitled to possession or to remain in possession of the demised premises but
shall forthwith quit and surrender same. Exclusive of and in addition to any
other rights or remedies the Landlord may have through any other portion or
provision of this lease or by virtue of any rule of law or statute, said
Landlord may keep and retain, as liquidated damages, any rent, security,
deposit or other moneys or consideration received by the Landlord from the
Tenant, or others on behalf of the Tenant. Also, in the event of termination of
this lease as aforesaid, the Landlord shall be entitled, as and for liquidated
damages from the Tenant for breach of the unexpired term of this lease, to an
amount equal to the difference between the rental value of the remainder of the
term at the time of termination and the actual rent reserved, both discounted
to present worth at the rate of four per cent (4%) per annum. If at any time
within a reasonable period following the date of the termination of the lease,
as aforesaid, the premises should be re-rented by the Landlord, the rent
realized by any re-letting shall be deemed prima facie evidence of the rental
value. In the event of the occurrence of any of the above-mentioned events of
default occasioned solely through the invocation by the Tenant or by third
parties of the laws of the State of New York, judicial or statutory, as
distinguished from the invocation of Federal laws relating to bankruptcy,
reorganization, or otherwise, the Landlord, in addition to the foregoing, may
accelerate the full amount of rent reserved for the remainder of the lease, and
the same shall forthwith become due and payable to the Landlord. Nothing
herein provided shall be deemed to prevent or restrict the Landlord from
proving and receiving as liquidated damages herein the maximum permitted by any
rule of law or statute prevailing when such damages are to be proved, whether
they be greater or less than those referred to above.
TWENTIETH: (a) Remedies of the Landlord on Default; Performance by the
Landlord. If the Tenant shall default in the full and due performance of any
covenant of this lease, the Landlord shall have the right, upon thirty (30)
days' notice to the Tenant (unless a shorter period of notice or provision for
the performance of such work without notice is elsewhere established in this
lease), to perform the same for the account of the Tenant, and in such event
all workmen employed by the Landlord shall be deemed the agents of the Tenant,
and any reasonable payment made, and expense incurred, by the Landlord in this
connection, shall forthwith become due and payable by the Tenant to the
Landlord with interest thereon at a rate of twelve per centum (12%) per annum.
If the Landlord incurs any expenses, including reasonable attorneys' fees and
disbursements in
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instituting, prosecuting or defending any action or proceeding instituted by
reason of any default of the Tenant hereunder, the sum or sums so incurred by
the Landlord with all interest, costs and damages, shall be deemed immediately
due to the Landlord upon demand. Any and all sums payable by the Tenant to the
Landlord shall bear interest at the rate of twelve per centum (12%) per annum
from the due date to the date of actual payment, and any and all such sums
(except the rent hereinabove expressly reserved) shall be deemed to be
additional rent for the period prior to such due date, and the Landlord shall
have the same remedies for default in the payment of such additional rent as
for default in the payment of the rent expressly reserved.
(b) Performance by the Landlord Not an Exclusive Remedy. In the event
that under the provisions of this lease the Landlord shall have the privilege
of performing any covenant in respect of which the Tenant may be in default and
of recovering the expenses so involved from the Tenant as additional rent or
otherwise, such remedy shall not be the exclusive remedy of the Landlord but
the Landlord may, at its option, treat such default as a breach of a
substantial obligation of this lease and shall have all the other remedies in
respect thereof provided in this or any other Article of this lease.
(c) Dispossess Termination of Lease. If the Tenant shall violate or
default in the full and due performance of any covenant, provision or condition
of this lease (other than the covenant to pay the rent or any additional rent),
or any covenant, provision or condition of any other lease under which the
Tenant is a tenant in the building, or if any of the events specified in the
Article of this lease numbered NINETEENTH and headed "Insolvency" shall occur,
the Landlord will give to the Tenant notice of such violation, default or
misconduct. In the event that (i) the Tenant shall default in the payment of
the rent or of any additional rent, or (ii) if the premises shall be vacated,
abandoned or deserted, or (iii) in the event that the Tenant, after notice
thereof as above provided, shall fail to stop any violation or fully cure or
remedy any default or terminate any misconduct under this lease (or in the
event that the default is of a nature such that the steps required to cure or
remedy the same fully cannot reasonably be completed within thirty days, then
if the Tenant shall not have commenced and have diligently and continuously
prosecuted the steps necessary to cure or remedy such default) the Landlord may
give to the Tenant ten (10) days' notice of its intention to terminate this
lease, and, in such event, on the tenth day following the giving of such notice
this lease and the term hereby granted shall terminate and expire as fully and
completely as if that day were the date herein expressly fixed for the
expiration of the term, and the Tenant shall thereupon quit and surrender the
premises into the possession of the Landlord, but the Tenant shall nevertheless
remain liable for deficiency in future rent and for any other defaults
hereunder, as hereinafter provided. If the Tenant shall default in the payment
of the rent, or any additional rent herein mentioned, or of any part of either,
or if this lease shall be terminated by the notice last above provided for, the
Landlord may immediately, or at any time thereafter, re-enter the premises and
remove all persons and property therefrom, either by summary dispossess
proceeding, or by any suitable action or proceeding at law, or otherwise,
without being liable to indictment, prosecution or damages therefor, and
re-possess and enjoy the premises, together with all additions, alterations,
installations and improvements, and no entry by the Landlord shall be deemed an
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acceptance of surrender. Upon any such re-entry, the Landlord may re-let the
premises or any part or parts thereof, and for such term or terms as to the
Landlord may seem wise, even though the same extend beyond the date herein
expressly fixed for the expiration of the term. Any such re-letting shall, at
the Landlord's option, be either for the Landlord's own account, or as the
agent for the Tenant. If the Landlord shall re-let as the agent of the Tenant,
the Landlord shall receive the rents and apply the same, first, to the payment
of all expenses which the Landlord shall have incurred by reason of the
Tenant's default and in connection with such re-entry and re-letting,
including, but not by way of limitation, legal expenses, brokers' commissions,
and the cost of reasonable repairs, redecoration and alterations, and,
secondly, to the fulfillment of the covenants of the Tenant herein contained,
and the surplus, if any, existing at the date herein expressly fixed for the
expiration of the term, shall be paid to the Tenant, but the Tenant shall be
entitled to no such payment until said date. So long as the premises, or any
part thereof, shall not be re-let, or shall be re-let by the Landlord as the
agent of the Tenant, the Tenant shall remain liable for the full and due
performance of all the covenants of this lease, and the Tenant hereby agrees to
pay to the Landlord, as damages for any default hereunder, until the date
herein expressly fixed for the expiration of the term, the equivalent of the
amount of all the rent and additional rent reserved herein, less the net avails
of re-letting, as hereinbefore defined, if any, and the same shall be due and
payable by the Tenant to the Landlord on the several rent days above specified,
that is, upon each of the said rent days the Tenant shall pay to the Landlord
the amount of deficiency then existing, and shall not be entitled to withhold
any such payment until the date herein expressly fixed for the expiration of
the term. The liability of the Tenant shall survive the issuance of a final
order and warrant of dispossess, and re-entry by the Landlord, and any other
termination of this lease for default of the Tenant, and the granting by the
Landlord of a new lease of the premises to another tenant, and the Tenant
hereby waives any defense which might be predicated upon any of said acts or
events.
The Tenant hereby expressly waives (i) any and all right to regain
possession of said premises or to reinstate or redeem this lease as provided by
the Real Property Actions & Proceedings Law (and as said law may be amended),
or any such right which is or may be given by any other statute, law or
decision now or hereafter in force; (ii) the service of any notice demanding
rent or stating an intention to re-enter; or any similar right which is or may
be given by any statute, law or decision now or hereafter in force; (iii) any
and all rights of redemption and all other rights to regain possession or to
reinstate this lease (in case the Tenant shall be dispossessed or ejected by,
or pursuant to judgment, order, execution or warrant of any court or judge).
Except as provided in Section 259-c of the Real Property Law with respect to an
action for personal injury or property damage between the parties hereto, the
Tenant waives and will waive all right to trial by jury in any summary
proceedings and in any other proceeding or action at law hereafter instituted
by the Landlord against the Tenant in respect of this lease, and also in any
action or proceeding between the parties hereto for any cause; and it is hereby
agreed, that in any of such events, the matter in dispute shall be tried before
a judge without a jury. In the event the Landlord shall commence any action or
summary proceeding for non-
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payment of rent or other breach of covenant or condition, the Tenant hereby
agrees not to interpose any counterclaim for whatever nature or description in
any such action or proceeding. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning.
TWENTY-FIRST: Surrender at Expiration. Upon the expiration of the term
of this lease or in the event of termination by reason of casualty or
condemnation, the Tenant shall quit and surrender the demised premises,
together with any fixtures, equipment or appurtenances installed in the
premises at the commencement of this lease, and any alterations, decorations,
additions and improvements which are not to be removed in compliance with the
provisions of Article FOURTH hereof, to the Landlord, broom clean, in good
order and condition, ordinary wear excepted. If the last day of the term of
this lease falls on Sunday, this lease shall expire on the business day
immediately preceding. The Tenant's obligation to observe and perform this
covenant shall survive the expiration or other termination of the term of this
lease.
TWENTY-SECOND: Tenant's Deposit. Upon the execution of this lease, The
Tenant shall deposit with the Landlord the sum of One Hundred Eight Thousand,
Three Hundred Thirty-three and 32/100 Dollars ($108,333.32) to secure the
faithful performance by the Tenant of all the terms, conditions, covenants and
agreements of this lease, and to make good to the Landlord any damage which it
may sustain by reason of any act or omission of the Tenant (such $108,333.32 or
other amount from time to time on hand of the Landlord, hereafter the
"Deposit"). If, during the term of this lease, the Landlord shall sell,
exchange or lease the entire building, subject to this lease, or, being the
lessee thereof, shall assign its lease, the Landlord shall have the right to
pay or transfer the Deposit to such grantee, lessee, or assignee, as the case
may be, and, in such event, the Landlord shall be released from all
responsibility and liability in connection therewith, and the Tenant will look
solely to said grantee, lessee, or assignee for its return. If the Deposit is
in cash, it shall be deposited with a bank or trust company, savings bank or
savings and loan association, and the Landlord shall advise the Tenant of the
name and address thereof. The Tenant shall not be entitled to the payment of
any interest earned upon such Deposit unless earned and any interest earned
shall be added to the Deposit. Landlord shall have the right to deduct annually
from such Deposit, an amount equal to 1% of the Deposit, which 1% shall be
payable to Landlord to defray the cost of administering such Deposit and the
balance of the interest earned on the Deposit shall be paid over to Tenant. The
Tenant's interest in the Deposit shall not be assigned or encumbered without
the written consent of the Landlord, and within thirty (30) days after the
expiration of the term, the amount of Deposit shall be repaid to the Tenant,
less any proper charges against the same, as hereinabove or hereinafter
provided. If the Tenant shall at any time be in default with respect to any
payment of rent or of additional rent or of any other payment due from the
Tenant to the Landlord under this lease beyond the applicable grace period, or
if the Landlord shall be damaged by any act or omission of the Tenant the
Landlord may, at its option, apply such portion of the Deposit as may be
adequate to cure such default or to make good such damage, including, but not
by way of limitation, interest, costs, fees and other expenses, paid or
incurred by the Landlord, and thereafter such portion so applied shall be free
from any claim by the Tenant for its return. No
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termination of this lease or re-entry by the Landlord for default of the Tenant
shall entitle the Tenant to the return of any part of the Deposit, nor shall
the retention of such Deposit, after such re-entry, impair or otherwise affect
the Tenant's liability to the Landlord during the balance of the term
originally provided for. If, at any time, the Deposit shall be diminished, by
reason of the Landlord's having applied any part thereof in accordance with the
provisions of this paragraph, the Tenant shall pay over to the Landlord, upon
demand, the equivalent of such decrease, to be added to the Deposit and to be
held and applied in accordance with the provisions of this paragraph.
Provided that Tenant (a) shall not then be in default and hereunder and
(b) shall have faithfully performed all of its obligations hereunder, Landlord
shall refund to Tenant, within thirty days following the third anniversary of
the Commencment Date, $27,083.33 of the Deposit, and shall refund to Tenant,
within thirty days following the fifth anniversary of the Commencement Date, an
additional $27,083.33 of the Deposit. For purposes of this paragraph "faithful
performance" shall mean (y) with respect to the payment of rent or additional
rent, that Tenant shall not have incurred late charges more than five times in
total or more than once in the twelve months prior to the fifth anniversary of
the Commencement Date and (z) with respect to Tenant's other obligations
hereunder, that Tenant shall not, at any time during the first five years
hereof, have been in default beyond any applicable grace period.
TWENTY-THIRD: Building services. (a) Except on Saturdays and Sundays,
and on holidays recognized as legal holidays by State or Federal Government,
the Landlord shall furnish, between the hours of eight a.m. and six p.m.,
elevator service with elevators now in the building, and during the cold season
(October 15th through April 15th), sufficient heat to heat the premises. The
Landlord may suspend any such services, if it should become necessary so to do,
at any time. The Landlord shall restore such suspended service promptly, making
due allowance for labor troubles, acts of God, or any cause beyond the
Landlord's control.
(b) In addition to the elevator service described in (a) above, the
Landlord will maintain in service and available for the use of the Tenant, one
passenger elevator at all times on all days of the week, including Saturdays,
Sundays and the legal holidays referred to in paragraph (a) above. Tenant shall
also have access to the building loading dock on a 24 hour per day, seven day
per week basis. In the event that the Tenant requires freight elevator service,
or heat on Saturdays, Sundays or any legal holiday referred to in paragraph (a)
above, or during hours in addition to those prescribed under (a) above, the
Landlord will furnish the additional elevator service or heat or both, as the
case may be, upon notice of the Tenant's need therefor. Such notice may be
written or oral and shall be given as long a time as practicable prior to the
time when the additional heat or freight elevator service is required. The
Tenant will pay for any additional freight elevator service and heat furnished
after the hours prescribed in (a) above at the respective prevailing rates per
hour as established from time to time by the Landlord for such services at the
building or in the buildings of the Landlord, generally, for each hour during
which the additional service is supplied. All charges for additional freight
elevator service and heat shall be payable when billed and in the event of
default of payment therefor, Landlord may refuse further service
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and the amount unpaid (plus interest thereon at the rate of twelve per centum
(12%) per annum) shall be deemed additional rent for which the Landlord shall
have all the remedies for collection herein specified with respect to rent. The
failure on the part of the Landlord to furnish such additional elevator service
or heat, if due to breakdowns, repairs, maintenance, strikes, or other causes
beyond the control of the Landlord, shall involve no liability on the part of
the Landlord nor shall it constitute an eviction.
(c) The Tenant shall be responsible for cleaning the premises and shall
keep all windows on the premises clean in accordance with all of Landlord's
Rules and Regulations, and Landlord shall have no obligation to keep the
interior or exterior of such windows clean.
(d) The main entry to the building shall be open and staffed by a
doorman, security guard or other employee or agent
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of the Landlord from 8:00 a.m. to 7:30 p.m. on business days. At all other
times the Tenant and its employees and their invitees shall have access to the
building at any time and without notice to the Landlord by ringing a security
xxxx provided for after hours service and properly identifying themselves (by
building passes or such other security arrangement as the Landlord shall
institute) to the building staff at that time.
TWENTY-FOURTH: Water; HVAC. The Landlord shall furnish cold water for
ordinary lavatory use so long as the premises are used only for office uses.
The Tenant will, at its own expense, heat the cold water supplied by the
Landlord in order to furnish hot water for lavatory or office uses. In order to
permit the Tenant to heat water for lavatory or office use, the Landlord will
provide, at Landlord's expense, one electric "instantaneous" water heater,
which shall be repaired and, if necessary, replaced by the Landlord. The Tenant
will pay the cost of any electricity utilized in heating water. In the event
that the Tenant shall use water for any industrial purpose or any purpose other
than usual lavatory purposes, the Tenant shall, at its own expense, install a
meter or meters for the measurement of the quantity of water thus consumed and
keep the same in good working order and the Tenant will pay for the water so
shown to have been used. All payments for water shall be due when billed to the
Tenant. In the event that the Tenant defaults in the payment for any water, the
amount not paid shall forthwith be payable as additional rent and the Landlord
may also, without incurring any liability or disability thereby or constituting
a constructive eviction, discontinue the Tenant's supply of water.
TWENTY-FIFTH: Work to be Done by Landlord. The Landlord shall not be
required to furnish any work or materials to the premises, except as expressly
provided in paragraph (a) of Article THIRD and the Work Letter attached hereto
as Exhibit "C" (the "Work Letter"). In case the Landlord is prevented from
making any repairs, improvements, decorations or alterations, installing any
fixtures or articles of equipment, furnishing any services or performing any
other covenant herein contained to be performed on the Landlord's part, due to
the Landlord's inability to obtain, or difficulty in obtaining, labor or
materials necessary therefor, or due to any governmental rules and regulations
relating to-the priority of national defense requirements, or due to labor
troubles, or due to any other cause beyond the Landlord's control, the
Landlord shall not be liable to the Tenant for damages resulting therefrom, nor
except as expressly otherwise provided in Article FOURTEENTH hereof (in respect
of damage to the premises due to fire), shall the Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same give rise
to a claim in the Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the premises. Upon substantial
completion of the Landlord's work, Landlord shall tender possession of the
premises to Tenant.
TWENTY-SIXTH: (a) Real Estate Tax and CPI Escalation. In order (i) to
adjust, during the term of this lease, for increases in the expenses of the
Landlord for Real Estate Taxes, the Tenant shall pay to the Landlord, as
additional rent, the Tenant's Proportionate Share of any increases in such Real
Estate Taxes, and (ii) to adjust for increases in other operating expenses of
the Landlord, the Tenant shall pay to the Landlord, as additional rent, the CPI
Adjustments for Increases in Other Operating Expenses, namely the amount by
which the Base
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Rent Allocated to other Operating Expenses is increased by application to the
Base Rent Allocated to Other Operating Expenses of increases in the Index over
the Base Index, all as computed as set forth below in this Article. Capitalized
words or expressions used above are defined in subparagraph (b) below.
(b) Definitions. As used in this Article the following capitalized
words or expressions shall have the meanings ascribed to them below:
1. "Real Estate Taxes" shall mean the expenditures of the Landlord for
taxes or assessments payable by the Landlord upon or with respect to the
building and the land upon which it is located, imposed by Federal, State or
local government (plus all expenditures for fees and expenses incurred in the
course of obtaining a reduction in any tentative assessed valuation), but shall
not include any real estate transfer taxes, transfer gains taxes or mortgage
recording taxes. The Tenant shall receive the benefit of the Tenant's
Proportionate Share of the amount of any refund of Real Estate Taxes, less any
related costs and expenses.
2. "Base Rent Allocated to other Operating Expenses" shall mean an
amount equal to 75% of the fixed annual rent prescribed on page 1 of this
lease, as such rent may be payable from time to time.
3. "Increase in Real Estate Taxes" shall mean the amount by which Real
Estate Taxes in any Subsequent Year exceed the Real Estate Taxes in the Base
Year July 1, 1993 - June 30, 1994 ("Base Real Estate Taxes").
4. "CPI Adjustment for Increases in Other Operating Expenses" shall
mean the amount obtained by multiplying the Base Rent Allocated to Other
Operating Expenses by the percentage by which the Index, as last published on
the date next prior to the Computation Date and the Index as last published on
the date next prior to each anniversary date of the Computation Date, shall
exceed the Base Index; provided, however, that, with respect to any particular
12-month period commencing with a Computation Date and ending with the next
Computation Date (the "CRI Adjustment Year"), the CPI Adjustment for Increases
in Other Operating Expenses attributable to such CPI Adjustment Year shall not
exceed an amount equal to 5% per annum multiplied by the fixed rent set forth
on the first page of this lease which is in effect on the then current
Computation Date.
5. "Index" shall mean the "Consumer Price Index for All Urban
Consumers" "(1982-84 = 100)" specified for "All Items," relating to
N.Y-Northern N.J.-Long Island, NY-NJ-CT and published by the Bureau of Labor
Statistics of the United States Department of Labor. In the event the Index
shall hereafter be converted to a different standard reference base or
otherwise revised, the determination of the CPI Adjustment for Increases in
Other Operating Expenses shall be made on the basis of such conversion factor,
formula or table for converting the Index as may be published by the Bureau of
Labor Statistics, or, if said Bureau shall not publish the same, then with the
use of such conversion factor, formula or table as may be published by
Xxxxxxxx-Xxxx, Inc., or, failing such publication, by any other nationally
recognized publisher of similar statistical information. In the event either
Index shall cease to be published, then, for the purposes of this Article,
there shall be substituted for the
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Index such other index as Landlord and Tenant shall agree upon, and, if they
are unable within ninety (90) days after the Index ceases to be published, such
matter shall be determined in New York City by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association.
6. "Base Index" shall mean the Index as last published prior to March,
1994.
7. "CPI Comparative Statement" shall mean a statement, in writing,
signed by the Landlord, or, on its behalf, by an officer of any corporation
acting as its managing agent, showing (i) a comparison of (a) Base Real Estate
Taxes with (b) Projected Real Estate Taxes for a Subsequent Year (which shall
be the same calendar year as the year of the Computation Date used in such CPI
Comparative Statement), (ii) the Base Rent Allocated to Other Operating
Expenses and the CPI Adjustment for Increases in Other Operating Expenses for
such Subsequent Year, and (iii) if the Tenant paid additional rent pursuant to
this Article with respect to the immediate preceding Subsequent Year, any
adjustment necessitated by a variance between the Projected Real Estate Taxes
for such Subsequent Year (as shown in the current CPI Comparative Statement)
and the Actual Real Estate Taxes for such Subsequent Year (as shown in the
current CPI Comparative Statement).
8. "Subsequent Year" shall mean any calendar year following the Base
Year, falling wholly or partly within the term of the Tenant under this lease
and the calendar year following the year in which the term of this lease
terminates.
9. "Computation Date" shall mean the 1st day of March, 1995, and, in
Subsequent Years, its anniversary date.
10. "Projected Real Estate Taxes" shall mean the Landlord's estimate
(which in any event must be reasonable in the light of past experience) of Real
Estate Taxes for a particular Subsequent Year.
11. "Tenant's Proportionate Share" shall mean a fraction, of which the
numerator shall be the number of rentable square feet of area of the premises
(22,000) and the denominator shall be the total number of rentable square feet
of area in the entire building (319,188), that is, 6.89249%. Tenant
acknowledges that "rentable square feet" is not the same as "useable square
feet" and has satisfied itself as to the rentable square footage of the
premises. Landlord has made no representations to Tenant with respect to the
useable square footage of the premises.
(c) Statements for the Tenant. On or before April 1, 1995, and on or
before that day in each Subsequent Year, the Landlord will furnish a CPI
Comparative Statement to the Tenant. The failure of the Landlord to furnish a
CPI Comparative Statement shall be without prejudice to the right of the
Landlord to furnish a CPI Comparative Statement at any time in the future.
Every CPI Comparative Statement furnished by the Landlord pursuant to
this Article shall be conclusive and binding upon the Tenant unless (i) within
thirty days after the receipt of such CPI Comparative Statement Tenant shall
notify Landlord that it disputes the correctness thereof, specifying the
particular respects in which the CPI Comparative Statement is
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claimed to be incorrect, and (ii) if such dispute shall not have been settled
by agreement, the dispute shall have been submitted to arbitration within
ninety days after receipt of the CPI Comparative Statement. Pending the
determination of such dispute by agreement of arbitration as aforesaid, Tenant
shall pay additional rent in accordance with the CPI Comparative Statement and
such payment shall be without prejudice to Tenant's position and to the
Tenant's rights to a refund of any overpayment. If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay Tenant the amount of
Tenant's overpayment of additional rent resulting from compliance with the CPI
Comparative Statement.
(d) Computation of Increase in Rent Payable by the Tenant. When the
Landlord shall furnish the Tenant with any CPI Comparative Statement in
accordance with this Article which shall show an Increase in Projected Real
Estate Taxes or a CPI Adjustment for Increases in Other Operating Expenses,
then the rent payable under the lease shall be increased by the Tenant's
Proportionate Share of the increase in Projected Real Estate Taxes and by the
CPI Adjustment for Increases in Other Operating Expenses which shall be payable
(with payment on account of such increases) as follows: (1) on the first day
for the payment of rent under this lease following the receipt of a CPI
Comparative Statement, the Tenant shall pay to the Landlord a sum equal to
one-twelfth of the Tenant's Proportionate Share of the increase in Projected
Real Estate Taxes plus one-twelfth of the CPI Adjustment for Increases in Other
Operating Expenses (plus or minus, as the case may be, any adjustment
necessitated by a variance between (x) the Projected Real Estate Taxes for the
calendar year prior to the year of the Computation Date used in such CPI
Comparative Statement and (y) the actual Real Estate Taxes for such calendar
year) and (2) thereafter, until a different CPI Comparative Statement shall be
submitted, the monthly installments of rent payable under this lease shall
continue to be increased by such amount.
With respect to any CPI Comparative Statement furnished to the Tenant
in the Subsequent Year following the year in which the term of this lease
terminates, if such CPI Comparative Statement shall indicate an adjustment
necessitated by a variance between (x) the Projected Real Estate Taxes for the
calendar year prior to the year of the Computation Date used in such CPI
Comparative Statement (i.e., the last calendar year of the lease term) and (y)
the actual Real Estate Taxes for such calendar year, then the Tenant shall
promptly pay to the Landlord, or the Landlord promptly shall pay to the Tenant,
as the case may be, the amount of any such adjustment as indicated in such CPI
Comparative Statement.
(e) Inspection of Books. The Tenant or its authorized representative
shall have a right to examine the books of the Landlord showing the Real Estate
Taxes with respect to the land and building during regular business hours for
the purpose of verifying the information set forth in any CPI Comparative
Statement relating to any Increase in Real Estate Taxes shown in such CPI
Comparative Statement; provided that a written request for such inspection is
made by the Tenant within thirty days of the receipt of any such CPI
Comparative Statement.
(f) Decreases in Real Estate Taxes or Index. In no event shall any
decrease in the Real Estate Taxes or the Index in any way reduce the fixed rent
or additional rent payable by the
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Tenant under this lease, except to the extent to which any such decrease shall
result in a decrease in the additional rent payable pursuant to this Article;
provided, however, that no decrease in Real Estate Taxes shall in any way
reduce any additional rent payable on account of any CPI Adjustment for
Increases in Other Operating Expenses, and that no decrease in the amount of
the CPI Adjustment for Increases in Other Operating Expenses shall in any way
reduce any additional rent payable on account of any Increase in Real Estate
Taxes.
TWENTY-SEVENTH: Construction of Office Improvements. It is agreed that
the Tenant will modify and improve the premises to make them better suited for
the purposes contemplated by Article First hereof, and that the Landlord will
reimburse the Tenant for the cost thereof up to a maximum of $275,000 (and the
Tenant will pay the cost thereof in excess of such amount), all in accordance
with, and subject to the limitations set forth in subparagraphs (a) through (e)
below:
(a) The Tenant will select an architect to design improvements for the
premises (which improvements shall not include any furniture, or telephone,
computer or other office systems or equipment) (the "Improvements"). Tenant
shall hire its own contractors. In the event that Tenant requests Landlord to
hire contractors to perform the work, which request must be made before the
architect has completed the design, and Landlord agrees to do so, the architect
shall be informed that the budgeted cost for the construction and installation
of the Improvements is $275,000 and instructed to design the Improvements so
that this budget is not exceeded. In the event that the projected cost for the
construction and installation of the Improvements will exceed $275,000, and the
Tenant has requested the Landlord to hire the contractors, and the Landlord has
agreed to do so, the Tenant will elect one of the following options:
(i) elect to proceed with the construction and installation of
the' Improvements and to pay such excess cost, in which event the Tenant
will immediately deliver to Landlord the full amount by which such cost
exceeds $275,000; such deposit may be in a form of a letter of credit
issued by a New York Clearinghouse bank, having a term of one year and
otherwise in form satisfactory to Landlord; the letter of credit will be
presented for payment by the Landlord once Landlord has been presented
with invoices equal to or in excess of $275,000 and in the event the
proceeds thereof are insufficient to pay the excess costs, the Tenant
will deposit the balance of such excess amount with the Landlord within
seven days of receipt from Landlord of an invoice for such amount; if
the proceeds of such letter of credit exceed the excess costs, Landlord
will deliver any excess proceeds to Tenant promptly after payment of all
invoices related to the Improvements; or
(ii) cause the Tenant's architects to revise the plans and
specifications for the Improvements so that the total cost thereof does
not exceed $275,000; or
It is understood and agreed that notwithstanding the Tenant's exercising either
or both of the options referred to in (i) and (ii) above, in the event that the
total cost of constructing and installing the Improvements shall, nevertheless,
exceed $275,000,
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the Landlord shall be under no obligation to proceed with the funding of such
construction and installation unless and until the Tenant shall deposit with
the Landlord the full amount of such excess.
(b) As soon as practicable, the Tenant shall submit to the Landlord for
review and approval plans and specifications (including all necessary
mechanical, electrical, engineering and working drawings) for the Improvements
and such plans shall be sufficient (i) to comply with all applicable rules,
regulations and requirements of any governmental authority having jurisdiction
over the building, (ii) to permit the Tenant to apply for and obtain all
necessary permits, licenses and approvals necessary in connection with the
Improvements, and (iii) to permit the contractor to commence and complete the
work relating to the Improvements. The Landlord shall review and approve or
comment on such plans within twenty (20) days of receipt thereof. As soon as
practical thereafter, the Tenant shall submit to the Landlord for approval
complete and final plans and specifications (including all necessary
mechanical, electrical, engineering and working drawings) for the Improvements,
sufficient to meet the requirements set forth in clauses (i) through (iii)
above (such plans as approved by the Landlord are hereinafter referred to as
the "Final Plans"). The Tenant agrees to reimburse the Landlord for its
reasonable fees and expenses for reviewing plans and specifications in an
amount not to exceed $2,500.00.
(c) All professional fees (including those for architectural and design
costs and appraisals) and the cost of all permits, licenses and approvals
required in connection with the construction and installation of the
Improvements shall be borne solely by the Tenant. In the event that the
Landlord advances any such fees or costs, the Tenant shall reimburse the
Landlord for such amount within seven days of receipt of any invoice from the
Landlord for such an amount.
(d) The Landlord shall reimburse the Tenant from time-to-time for work
done in connection with the installation and construction of the Improvements,
provided that the Landlord's obligation to make any such payment or
reimbursement shall be conditioned upon the satisfaction of the following
conditions:
(i) The work done must substantially conform to the design set
forth in the Final Plans and the quality and workmanship of the work
done must be reasonably satisfactory to the Landlord;
(ii) The Landlord shall have been furnished with invoices from
the vendors, supplier, or contractor evidencing the amount for which
payment or reimbursement is sought, such invoices, if submitted for
reimbursement, to be marked "paid in full" by such vendor, supplier or
contractor (or, in lieu thereof, the Landlord shall be furnished other
documentation satisfactory to the Landlord evidencing payment in full);
and
(iii) The Landlord shall have received, with respect to the
work done for which payment or reimbursement is claimed hereunder, a
written waiver from the contractor or vendor in question (and all
subcontractors and subvendors involved in the work in question) waiving
any right to assert any vendor's, mechanic's or other lien on the
building, the
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premises or any fixtures, machinery, equipment or other
installation therein.
(e) It is understood and agreed that the Landlord shall have no
responsibility for the performance of the contractor installing the
Improvements (including matters of quality or timeliness), and in the event
that for any reason the Improvements are not completed in a timely fashion
and/or there is any delay in the date on which the premises are ready for
occupancy by the Tenant for the purposes of conducting business, this lease
shall nevertheless continue in full force and effect, the Tenant shall be
required to pay rent, and the Tenant shall have no right, remedy or claim
(including any claim for actual, punitive or consequential damages) against the
Landlord.
TWENTY-EIGHTH: Broker. The Tenant represents and warrants to the
Landlord that all of the Tenant's negotiations respecting this lease which were
conducted with or through any person, firm or corporation, other than the
officers of the Landlord, were conducted through Creative Leasing concepts
(Xxxxxxxxx Xxxxxx), real estate brokers (the "Broker"). The Landlord agrees to
pay the commission due to the Broker pursuant to the terms of a separate
agreement. Landlord and Tenant agree to indemnify and hold one another harmless
from and against all demands, liabilities, losses, causes of action, damages,
costs and expenses (including without limitation attorneys' fees and
disbursements) suffered or incurred in connection with any claims for a
brokerage commission or consultation fees arising out of any conversations or
negotiations had by the party against whom indemnification is claimed with any
broker or finder except for the Broker.
TWENTY-NINTH: Notices; Miscellaneous. (a) Any notice which is to be
given by either party to the other pursuant to this lease shall be in writing
and shall be given personally as follows: (i) if such notice is to be given by
the Landlord to the Tenant, such notice shall be given in the following manner:
(x) notice may be given personally, by delivering the same to the Tenant or, if
the Tenant be a corporation or partnership, to any officer of such corporation
or member of the partnership, at the premises or at any other place; or (y)
notice may also be given personally at the premises by delivering same to the
Tenant or any officer or partner of the Tenant; or (z) notice may also be given
by registered or certified mail by depositing the notice, enclosed in an
envelope addressed to the Tenant at its address given in this lease or at the
premises, in any United States Post Office, postage and registry or
certification fees prepaid; (ii) if such notice is to be given by the Tenant to
the Landlord, the notice shall be given by registered or certified mail, by
depositing the notice, enclosed in an envelope, addressed to the Landlord at 00
Xxxxxxx Xxxxx, Xxx Xxxx, N.Y., or at such other place as the Landlord shall
hereafter designate in writing, in any United States Post office, postage and
registry or certification fees prepaid. Any notice shall be deemed to have
been given on the date when the same is delivered as above provided or, if
given by mail, on the date which is two business days following the day when it
is deposited as above provided in the United States Post office.
(b) If Tenant is a corporation, partnership or trust, it shall keep in
effect its existence and rights as a corporation or partnership or trust under
the law of the state of its incorporation or formation and its right to own and
lease
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property and transact business in the state in which the premises are situated
during the entire time that it has any interest in the premises.
THIRTIETH: Quiet Enjoyment. The Landlord covenants that, if the Tenant
shall duly keep and perform all the terms and conditions ions hereof, the
Tenant shall peaceably and quietly have, hold and enjoy the premises for the
term aforesaid, subject, however, to ground leases, underlying leases and
mortgages as hereinbefore described, and to the lien, rights and estate by
virtue of unpaid taxes of any government having jurisdiction of the premises of
which the herein demised premises are a part. If the Landlord shall hereafter
sell, exchange or lease the entire building or the land and the building
wherein the premises are located, subject to this lease, or, being the lessee
thereof, shall assign its lease, the grantee, lessee, or assignee thereof, as
the case may be, shall, without further agreement by any party, be conclusively
deemed to be the Landlord of this lease and to have assumed and undertaken to
carry out all of the obligations hereof on the part of the Landlord to be
performed, and the Tenant does hereby release the above named Landlord from any
claim or liability arising or accruing hereunder subsequent to such transfer of
ownership, for breach of the covenant of quiet enjoyment, or otherwise.
THIRTY-FIRST: Security Guard Program. If the Landlord institutes a
security guard program at the building under contract with a recognized
security guard or patrol agency which shall supply guards for the lobby, hall,
loading bank and other patrol services at the building on a contract basis, the
Tenant will, within ten days following receipt of a statement from the Landlord
of the Landlord's expenditure for the security guard services, pay to the
Landlord the Tenant's proportionate share of 121% of the Landlord's
expenditures for the security guard service in the building. The amount payable
hereunder shall constitute additional rent. Statements of the Landlord's
expenditures in successive periods of 90 days following the institution of the
service shall be submitted not more frequently than once in each period of
three months during the term. The Tenant's proportionate share of the
Landlord's expenditure for the security guard services shall be as set forth in
subparagraph (b) (11) of Article TWENTY-SIXTH.
THIRTY-SECOND: Headings. The headings or titles of the various Articles
or paragraphs of this lease are for reference and index purposes only, and none
of them shall be taken into consideration or given any effect whatever in
determining the meaning or scope of the paragraph to which any of them applies.
The use of any pronoun referring to either of the parties to this lease shall
be construed to include any or no gender and any number.
THIRTY-THIRD: Free Rent. Provided Tenant shall not be in default of any
provision of this lease and shall have faithfully paid all rent and other
amounts payable pursuant to this lease on or before the due date thereof,
Tenant shall not be required to pay fixed rent with respect to the premises (i)
for the three-month period commencing on the Commencement Date and terminating
on May 31, 1994, and (ii) the two-month period commencing on March 1, 1995 and
ending on April 30, 1995; provided, however, that Tenant shall during such
abatement period pay all other amounts due under this lease, including but not
limited to, any additional rent payable pursuant to Article
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TWENTY-SIXTH of this lease and any service charges for electric current, water
and overtime elevator or heat services.
THIRTY-FOURTH: Delayed Possession. In the event that the Landlord, for
any reason, shall be unable to give possession of the premises hereby demised
by the 1st day of January, 1994, this lease shall nevertheless continue in full
force and effect and the Landlord shall-tender and the Tenant will take
possession of said premises under the terms of this lease as soon as the
Landlord shall have tendered possession thereof to the Tenant; the fixed rent,
however, to begin three months after the date upon which such possession is
tendered to the Tenant.
THIRTY-FIFTH: No Pornography. In conducting its business in the
premises, as permitted by this lease, the Tenant will not deal in any sexually
explicit or pornographic materials. It being understood that violations of the
foregoing restriction may be subject to varying interpretations, it is agreed
that the Landlord shall be the sole judge of what constitutes sexually explicit
or pornographic materials.
If the Tenant shall fail to operate the premises in the manner
specified in this Article, the Landlord may give notice to the Tenant to cure
any violation of this article within 30 days. If the Tenant fails to cure such
violations to the satisfaction of the Landlord, as the Landlord in its sole
discretion shall determine, in such 30-day period, such failure shall
constitute a default hereunder and the Landlord shall have the right to
terminate this lease in accordance with the provisions of Article TWENTIETH of
this lease.
The terms, covenants and conditions contained in the foregoing lease
shall be binding on, and shall enure to the benefit of the parties hereto, and
their respective legal representatives, successors, and assigns, but no
assignment made or purported to be made in violation of the provisions of this
lease shall vest in such assignee any right or title in or to this lease or in
or to the estate hereby created.
IN WITNESS WHEREOF, this agreement has been signed and sealed by the
parties hereto, the day and year first above written.
THE XXXXXX, CHURCHWARDENS AND
VESTRYMEN OF TRINITY CHURCH
IN THE CITY OF NEW YORK
Attest:
As to Landlord: By: /s/
-----------------------------------
Executive Vice President of Real Estate
/s/ By: /s/
------------------ ------------------------------
Finance Department Director of Leasing
Attest: SMA VIDEO INC.
As to Tenant:
/s/ By: /s/ (L.S)
----------------- -------------------------------
Assistant Secretary President
By: /s/ Xxxxxx Xxxx Xxxxxxx
------------------------
Xxxxxx Xxxx Xxxxxxx,
Xxxxxx
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SCHEDULE A
Rules and Regulations
1. The Tenant shall not clean, nor require, permit or allow any window
in the demised premises to be cleaned from the outside in violation of Section
202 of the Labor Law or of the Rules of the Board of Standards and Appeals, or
of any other board or body having or asserting jurisdiction;
2. No sign or lettering shall be inscribed on any door, wall or window
of the demised premises which is visible from the street or the portion of the
building used in common by other tenants except such as may be approved in
writing by the Landlord or its agents or designee, and except that the name of
the Tenant and any permitted occupant may be displayed on or next to the
entrance door of the demised premises. Landlord shall allow the Tenant ten
listings in the building directory in the lobby of the building;
3. No additional locks or bolts shall be placed anywhere upon or within
the demised premises or any on rooms therein, unless duplicate keys thereto be
given to the Landlord and all such keys must, on the termination of this lease,
be surrendered to the Landlord;
4. The Landlord may exclude any persons visiting or attempting to visit
the premises between 7 p.m. and 8 a.m. and on Saturdays, Sundays and the
holidays recognized as such by the state or federal government unless such
person shall be equipped with a pass signed by the Tenant and unless such
person shall sign his/her name and the premises which he/she is to visit on the
night report;
5. The sanitary and safety facilities used solely by the Tenant or by
the Tenant in common with other occupants of the building of which the demised
premises are a part shall be used only for the purposes for which they were
constructed;
6. No signs, signals, devices, displays, sounds or advertisements
visible or audible from the street or from the halls and other parts of the
building used in common by the Tenant and other tenants shall be inscribed,
erected or maintained unless the kind, style, location and manner thereof shall
have been approved in writing by the Landlord and if any sign, signal, sound
display or advertising be erected, made or inscribed without such approval, the
Landlord may remove the same and charge the cost of so doing to the Tenant as
additional rent. Notwithstanding the preceding, the name of the Tenant may be
displayed on or next to the entrance door of the demises premises. The Landlord
may remove any sign or signs or displays in order to paint the premises or any
part of the building, or make any repairs, alterations or improvements in or
upon the premises or building, or any part thereof, provided it causes the same
to be removed and replaced at the Landlord's expense, whenever the said
painting, repairs, alterations or improvements shall have been completed;
7. No advertising which, in the reasonable opinion of the Landlord,
tends to impair the reputation of the building or its desirability as an office
building, shall be published or caused to be published by the Tenant and, upon
notice from the
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Landlord, the Tenant shall refrain from or discontinue such advertising;
8. Awnings, antennae, aerials, ventilating and air conditioning
apparatus or other projections from the windows or outside walls of the demised
premises shall not be erected or installed. All air conditioning apparatus
installed in windows by the Tenant shall be so arranged that condensate does
not drain on the outside of the building wall or into the street;
9. The lights, skylights, entrances, passages, courts, elevators,
stairways, loading platforms, halls or any part of the building intended for
the use in common by the Tenant and the other occupants thereof shall not be
obstructed or encumbered. In the event of any such encumbrance or obstruction,
the Landlord may remove the material causing such encumbrance or obstruction
and cause it to be stored and charge the cost of doing so to the Tenant after
reasonable notice to the Tenant;
10. No part of the premises or the building shall be marked, painted,
drilled into, or in any way defaced except as otherwise permitted in this
Lease. No laying of linoleum or other similar floor covering so that the same
shall come in direct contact with the floor of the demised premises shall be
made; 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; cement and other similar adhesive
material shall not be used;
11. No part of the demised premises shall be used in a manner which, in
the reasonable judgment of the Landlord, might cause structural injury to the
building or its equipment;
12. The Tenant's employees shall not stand or loiter around the
hallways, stairways, elevators, front, roof or any other part of the building
used in common by the occupants thereof;
13. No load shall be placed upon any floor of the building exceeding
the floor load per square foot area which such floor was designed to carry, and
all loads shall be evenly distributed. The existing floor load in the premises
is approximately 250 pounds per square foot. The Landlord reserves the right to
reasonably prescribe the weight and position of all safes, machinery and other
personal property in the premises which must be placed so as to distribute their
weight;
14. Nothing shall be thrown out of the windows or doors, or down the
passages or skylights of the building, nor shall any of them be covered,
obstructed or encumbered. No improper noises shall be made in the building, nor
shall birds or animals be brought therein;
15. Where freight or service elevators are provided by the building and
are in operation, all deliveries shall be made to or from the demised premises
exclusively by means of such elevators;
16. Anyone doing janitorial work for the Tenant shall at all times be
subject to order and direction by the superintendent of the building, although
he shall not be the servant of either the superintendent or the Landlord;
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17. No peddling, soliciting and canvassing shall be permitted in the
premises or by the Tenant's employees elsewhere in the building;
18. The Landlord may reasonably prescribe, and from time to time
reasonably vary, the time for any removals or deliveries from or into the
premises, at any time, and such prescriptions shall apply whether or not the
material so removed or received is the property of the Tenant. Removals or
deliveries of safes, machinery and any other heavy or bulky matter shall be
done only upon written authorization of the Landlord and only in such manner
and by such persons as may be reasonably acceptable to the Landlord, and the
Landlord may require any further reasonable assurances or agreements or
indemnity from the Tenant and the movers to that effect. 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 of these Rules and Regulations
or the lease of which these Rules and Regulations are a part;
19. The Tenant shall not knowingly permit its servants, employees,
agents, visitors or licensees, at any time to bring or keep upon the premises
any inflammable, combustible, corrosive or explosive fluid, chemical (other
than commonly used cleaning products) or substance or cause or permit any
unusual or objectionable odors to be produced upon or emanate from the
premises;
20. The Tenant shall not use any other method of heating than that
supplied by the Landlord; except as set forth in this lease;
21. No drilling in floors, walls or ceilings shall be done except in
compliance with the terms of this lease and no such drilling shall be done
during usual business hours unless authorized by the Landlord in writing;
22. No vending machine shall be installed or permitted to remain in the
premises unless the Landlord shall first have given its specific written
authorization for the installation of each such machine, which authorization
shall not be unreasonably withheld or delayed. The Tenant shall not authorize
or permit any vendor of sandwiches, coffee, or other foods, candies or
beverages to enter the premises for the purpose of soliciting sales of such
wares to the Tenant's employees. This rule shall not be deemed to require the
Landlord's consent to or written authorization of entry upon the premises by
suppliers of vending machines which have been specifically authorized by the
Landlord.
23. The passenger and service elevators, other than automatic
self-service elevators, if any, shall be operated only by employees of the
Landlord, and must not in any event be interfered with by the Tenant, Tenant's
servants, employees, agents, visitors or licensees;
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EXHIBIT C
WORK LETTER
1. Landlord has installed a Local Law #5 system for base building which
includes a fire command station, necessary risers, warden stations,
pull stations, smoke detectors required for the core area. Tenant to be
responsible for the relocation of existing or installation of any new
devices necessary due to tenant's installation.
2. Install new operable thermopane windows throughout the premises except
for the three (3) existing window bays on the southeast lot-line
elevation. The aforementioned existing lot-line windows have been
rehabilitated to Landlord's specifications.
3. Provide not less than twelve (12) xxxxx per net usable square foot area
of the premises consisting of two (2) xxxxx (120/208) v, 400 nominal
amps, for convenience outlets and ten (10) xxxxx (277/480) v, 400
nominal amps for lighting and HVAC power terminating in two (2) meters
and two (2) switches in the respective floor's electric room, as per
Landlord's specifications. The xxxx-up of the submeters will be
calculated from the aggregate billing.
4. Modernize building core mens and ladies toilet facilities to Landlord's
specifications, which is in compliance with NYC handicap requirements.
5. Existing sprinkler system to remain as is. The Landlord warrants that
the risers for the sprinkler system, the tanks, pumps and "Siamese"
connections at street level all comply with the presently existing
requirements of the New York City Building Code.
6. The Landlord will install up to two 30-ton Carrier Modu-vac in-door
packaged cooling variable air volume system with two XXXX air-cooled
condensers model #IICD 26ALF, with five-row coil type B, 15HP motor,
flat filter section and vibration insulators in a machine room on the
floor.
Sheetmetal to consist of aluminum condenser air intake and discharge
duct, acoustical lining (ending at machine room wall), motorized
dampers, flexible collars, tuning vanes, access doors, angle-iron
stands for condensers, mixed air plenum, and anodized louvers to match
window frames; supply ductwork to be installed by Tenant. The system is
engineered with the following features:
a) dual Carrier serviceable compressors
b) automatic capacity control with electric unloader
c) positive compressor protection
d) crank case heaters
e) hot gas by-pass
f) pre-wired electrical control center
g) intertwined evaporator coil
h) forward curved fans
i) outdoor fan relay
j) timer control panel
k) 10HP evaporator motor
-4-
l) discharge air sensor
m) economizer with enthalpy (Honeywell)
n) fresh air dampers, return air dampers, exchange air dampers
o) discharge VAV damper
p) electric resistance heaters sized to the capacity of the
compressor load
At all times during the term of this lease, the Tenant shall pay all electric
costs incurred in the operation of all air conditioning equipment in the
premises, furthermore, Tenant to be responsible for the service contracts on
such equipment after the expiration of the manufacturers warranties.
All electrical distribution within the Tenant's premises (including power and
control connections to the air conditioning equipment) is NOT included in the
Landlord's base building work and is to be installed by Tenant.
7. Heating is provided through perimeter radiation consisting of two pipe,
low pressure intermittent system turned over in good working order with
new traps, valves, and branch piping to risers and return lines.
-5-
This AMENDMENT OF LEASE dated as of the 29th day of June, 1995, between
The Xxxxxx, Church-Wardens, and Vestrymen of Trinity Church in the City of New
York, having its offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx ("Landlord"),
and SMA Video, Inc., having its offices at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant previously entered into that certain lease
dated as of the December 29, 1993 for the entire tenth floor of the building
known as 100 Avenue of the Americas (the "Lease"); and
WHEREAS, a dispute has arisen between the parties relating to the
responsibility for certain construction delays, with a resulting disagreement
over the appropriate Commencement Date for the Lease; and
WHEREAS, the parties have resolved their differences and this Amendment
of Lease is intended to reflect that resolution.
NOW, THEREFORE, the parties agree as follows:
1. The Commencement Date of the Lease is deemed to be September 1,
1994. Tenant acknowledges that Landlord has completed all work required to be
performed by Landlord and described in Exhibit C ("Work Letter") of the Lease.
2. The term of the Lease is hereby extended so that the Expiration Date
shall be December 31, 2005.
3. In Article THIRTY-THIRD of the Lease, the dates set forth in clauses
(i) and (ii) are hereby deleted and the following substituted therefor: "(i)
the three-month period commencing on September 1, 1994 and terminating on
November 30, 1994 and (ii) the three-month period commencing on February 1,
1995 and terminating on April 30, 1995."
4. The parties agree that fixed rent for the months of December, 1994
and January, 1995 have been paid. As of the date hereof, Tenant owes fixed rent
for May and June, 1995 in the amount of $50,000.
5. Pursuant to Article TWENTY-SEVENTH of the Lease, Landlord agreed to
reimburse up to a maximum of $275,000 of Tenant's cost of construction of office
improvements in the premises. In addition, as a result of field conditions,
Landlord agreed to give Tenant an additional credit of $34,917. As of the date
hereof, Tenant is entitled to a final total reimbursement of $36,668, whereupon
Landlord shall have no further reimbursement obligation under either Article
TWENTY-SEVENTH or with respect to the aforementioned credits.
6. Simultaneously with the execution hereof by Tenant, Tenant shall
deliver to Landlord a check in the amount of $13,332, representing the fixed
rent for May and June, 1995 in the amount of $50,000, less the Landlord's
reimbursement obligation of $36,668.
7. The Lease, as modified by this Amendment of Lease, remains in full
force and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties have executed this Amendment of Lease
as of the day and year first above written.
LANDLORD:
THE XXXXXX, CHURCH-WARDENS AND VESTRYMEN
OF TRINITY CHURCH IN THE CITY OF NEW YORK
By: /s/ illegible
-----------------------------
TENANT:
SMA VIDEO, INC.
By: /s/ illegible
-----------------------------
