EXHIBIT 10.4
STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
Agreement of Lease made as of this 1st day of June, 1998,
00 XXXX 00XX XXXXXX LLC, by Xxxxxx X. Day Realty Corp., Agent, having its
office at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 party of the first part,
hereinafter referred to as OWNER, and
THE COLLEGE TELEVISION NETWORK INC., a Delaware Corporation currently
located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 party of the second part,
hereinafter referred to as TENANT,
WITNESSETH:
Owner hereby leases to Tenant and Tenant hereby hires from Owner the entire
11th and 12th Floors in the building known as 00 Xxxx 00xx Xxxxxx in the Borough
of Manhattan, City of New York, for a term of Ten Years (or until such term
shall sooner cease and expire as hereinafter provided) to commence on execution
and delivery of this Lease by the parties hereto (the "Commencement Date", and
to end on the date 10 years after the Commencement Date, both dates inclusive,
at an annual rental rate of Two Hundred Forty-Nine Thousand Nine Hundred and
No/100 ($249,000.00) Dollars per annum, subject to adjustment as provided in
this Lease and the Rider Agreement annexed hereto, which Tenant agrees to pay in
lawful money of the United States which shall be legal tender in payment of all
debts and dues, public and private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said term, at the
office of Owner or such other place as Owner may designate, without any set off
or deduction whatsoever, except as otherwise set forth herein or allowed by law,
except that Tenant shall pay the first full monthly installment on execution of
this Lease.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
1. RENT:
Tenant shall pay the rent as above and as hereinafter provided.
2. OCCUPANCY:
Tenant shall use and occupy the demised premises for general offices and for no
other purpose without Owner's prior written consent.
3. TENANT ALTERATIONS:
Tenant shall make no changes in or to the demised premises of any nature without
Owner's prior written consent. Subject to the prior written consent of Owner,
and to the provisions of this
article, Tenant, at Tenant's expense, may make alterations, installations,
additions or improvements which are non-structural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises by using contractors or mechanics first approved in each
instance by Owner. Tenant shall, before making any alterations, additions,
installations or improvements, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to Owner and Tenant
agrees to carry and will cause Tenant's contractors and sub-contractors to carry
such xxxxxxx'x compensation, general liability, personal and property damage
insurance as Owner may reasonably require. If any mechanic's lien is filed
against the demised premises, or the building of which the same forms a part,
for work claimed to have been done for, or materials furnished to, Tenant,
whether or not done pursuant to this article, the same shall be discharged by
Tenant within thirty days after Tenant receives written notice of such lien, at
Tenant's expense, by payment or filing the bond required by law. All fixtures
and all paneling, partitions, railings and like installations, installed in the
premises at any time, either by Tenant or by Owner on Tenant's behalf, shall,
upon installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises. If tenant requests in writing that Owner
do so, Owner will state at the time Owner consents to such installations whether
Owner elects to have such installations removed by Tenant. Owner will not
require Tenant to remove Tenant's initial installation except Tenant shall
remove any staircase Tenant installs between the 11th and 12th Floors and tenant
shall slab over the opening. If Owner requires the installations to be removed
by Tenant, the same shall be removed from the premises by Tenant prior to the
expiration of the lease, at Tenant's expense. Nothing in this Article shall be
construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the premises by Owner, at Tenant's expense.
4. MAINTENANCE AND REPAIR:
Tenant shall, throughout the term of this lease, take good care of the demised
premises and the fixtures and appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs to the extent caused by or resulting from
negligence or intentional acts of Tenant, Tenant's subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor, service
or equipment done for or supplied to Tenant or any subtenant or arising out of
the installation, use or operation of the property or equipment of Tenant or any
subtenant. Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture and equipment.
Tenant shall promptly make, at Tenant's expense, all repairs in and to the
demised premises for which Tenant is responsible, using only the contractor for
the trade or trades in question,
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selected from a list of at least two contractors per trade submitted by Owner.
Any other repairs in or to the building or the facilities and systems thereof
for which Tenant is responsible shall be performed by Owner at the Tenant's
expense. Owner shall maintain in good working order and repair the exterior and
the structural portions of the building, including the structural portions of
its demised premises, and the public portions of the building interior and the
building plumbing, electrical, heating and ventilating systems (to the extent
such systems presently exist) serving the demised premises. Tenant agrees to
give prompt notice of any defective condition in the premises for which Owner
may be responsible hereunder. Except as expressly set forth in this Lease there
shall be no allowance to Tenant for diminution of rental value and no liability
on the part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner or others making repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises or in
and to the fixtures, appurtenances or equipment thereof. It is specifically
agreed that Tenant shall not be entitled to any setoff or reduction of rent by
reason of any failure of Owner to comply with the covenants of this or any other
article of this Lease. Tenant agrees that Tenant's sole remedy at law in such
instance will be by way of an action for damages for breach of contract. The
provisions of this Article 4 shall not apply in the case of fire or other
casualty which are dealt with in Article 9 hereof. Owner shall maintain and
repair the main lobby area, the roof, foundations, exterior walls and glass of
the building. Tenant shall give notice to Owner of any defect or need for repair
and Owner shall repair or cure the same within a reasonable time.
5. WINDOW CLEANING:
Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the Labor Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting
jurisdiction.
6. REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS:
Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
board and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, Insurance
Services Office, or any similar body which shall impose any violation, order or
duty upon Owner or Tenant with respect to the demised premises, arising out of
Tenant's particular use or manner of use thereof, (excluding Tenant's permitted
use) or, with respect to the building if arising out of Tenant's particular use
or manner of use of the premises or the building (excluding the use permitted
under the lease). Nothing herein shall require Tenant to make structural
repairs or alterations unless Tenant has, by its manner of use of the demised
premises or method of operation therein, violated any such laws, ordinances,
orders, rules, regulations, or requirements with respect thereto. Tenant may,
after securing Owner to Owner's satisfaction against all damages, interest,
penalties and expenses, including, but not limited to, reasonable attorney's
fees, by cash deposit or by surety bond in an amount and in a company
satisfactory to Owner,
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contest and appeal any such laws, ordinances, orders, rules, regulations or
requirements provided same is done with all reasonable promptness and provided
such appeal shall not subject Owner to prosecution for a criminal offense or
constitute a default under any lease or mortgage under which owner may be
obligated, or cause the demised premises or any part thereof to be condemned or
vacated. Tenant shall not do or permit any act or thing to be done in or to the
demised premises which is contrary to law, or which will invalidate or be in
conflict with public liability, fire or other policies of insurance at any time
carried by or for the benefit of Owner with respect to the demised premises or
the building of which the demised premises form a part, or which shall subject
Owner to any liability or responsibility to any person or for property damage.
Tenant shall not keep anything in the demised premises except as now or
hereafter permitted by the Fire Department, Board of Fire Underwriters, Fire
Insurance Rating Organization or other authority having jurisdiction, and then
only in such manner and such quantity so as not to increase the rate for fire
insurance applicable to the building, nor use the premises in a manner which
will increase the insurance rate for the building or any property located
therein over that in effect prior to the commencement of Tenant's occupancy.
Tenant shall pay all costs, expenses, fines, penalties, or damages, which may be
imposed upon Owner by reason of Tenant's failure to comply with the provisions
of this Article and if by reason of such failure the fire insurance rate shall,
at the beginning of this Lease or at any time thereafter, be higher that it
otherwise would be, then Tenant shall reimburse Owner, as additional rent
hereunder, for that portion of all fire insurance premiums thereafter paid by
Owner which shall have been charged because of such failure by Tenant. In any
action or proceeding wherein Owner and Tenant are parties, a schedule or "make-
up" of rate for the building or demised premises issued by the New York Fire
Insurance Exchange, or other body making fire insurance rates applicable to said
premises shall be conclusive evidence of the facts therein stated and of the
several items and charges in the fire insurance rates then applicable to said
premises. Tenant shall not place a load upon any floor of the demised premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Owner reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Tenant, at Tenant's expense, in
settings sufficient, in Owner's judgment, to absorb and prevent vibration, noise
and annoyance.
7. SUBORDINATION:
This Lease is subject and subordinate to all mortgages which may now or
hereafter affect such leases or the real property of which demised premises are
a part and to all renewals, modifications, consolidations, replacements and
extensions of any such underlying leases and mortgages. This clause shall be
self-operative and no further instruments of subordination shall be required by
any ground or underlying lessor or by any mortgagee, affecting any lease or the
real property of which the demised premises are a part. In confirmation of such
subordination, Tenant shall from time to time execute promptly any certificate
that Owner's lender may request.
8. PROPERTY LOSS, DAMAGE REIMBURSEMENT INDEMNITY:
Owner or its agents shall not be liable for any damage to property of Tenant or
of others entrusted to employees of the building, nor for loss of or damage to
any property of Tenant by
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theft or otherwise, nor for any injury or damage to persons or property
resulting from any cause of whatsoever nature, unless caused by or due to the
negligence of Owner, its agents, servants or employees. Owner or its agents will
not be liable for any such damage caused by other tenants or persons in, upon or
about said building or caused by operations in construction of any private,
public or quasi public work. If at any time any windows of the demised premises
are temporarily closed, darkened or bricked up (or permanently closed, darkened
or bricked up, if required by applicable law) for any reason whatsoever, beyond
Owner's control Owner shall not be liable for any damage Tenant may sustain
thereby and Tenant shall not be entitled to any compensation therefor nor
abatement or diminution of rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction. Tenant shall indemnify and
save harmless Owner against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses for which Owner shall not be reimbursed by
insurance, including reasonable attorneys fees, paid, suffered or incurred as a
result of any breach by Tenant, Tenant's agents, contractors, employees,
invitees, or licensees, of any covenant or condition of this lease, or the
negligence or willful misconduct of the Tenant, Tenant's agents, contractors,
employees, invitees or licensees. Tenant's liability under this lease extends to
the acts and omissions of any sub-tenant, and any agent, contractor, employee,
invitee or licensee of any sub-tenant. In case any action or proceeding is
brought against Owner by reason of any such claim, Tenant, upon written notice
from Owner, will, at Tenant's expense, resist or defend such action or
proceeding by counsel approved by owner in writing, such approval not to be
unreasonably withheld.
9. DESTRUCTION, FIRE AND OTHER CASUALTY:
(a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner and this
Lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by and
at the expense of Owner and the rent and other items of additional rent, until
such repair shall be substantially completed and possession of the demised
premises returned to Tenant shall be apportioned from the day following the
casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable
by fire or other casualty, then the rent and other items of additional rent as
hereinafter expressly provided shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when the premises shall
have been repaired and restored by Owner (or sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above), subject to
Owner's right to elect not to restore the same as hereinafter provided.
(d) If the demised premises are rendered wholly unusable or (whether or not
the demised premises are damaged in whole or in part) if the building shall be
so damaged that Owner shall decide to demolish it or to rebuilt it, then, in any
of such events, Owner may elect to terminate this lease by written notice to
Tenant, given within 90 days after such fire or casualty, or 30 days after
adjustment of the insurance claim for such fire or casualty, whichever is
sooner,
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specifying a date for the expiration of the lease, which date shall not be more
than 60 days after the giving of such notice, and upon the date specified in
such notice the term of this Lease shall expire as fully and completely as if
such date were the date set forth above for the termination of this lease and
Tenant shall forthwith quit, surrender and vacate the premises without prejudice
however, to Landlord's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing through the
date of the casualty shall be paid up to such date and any payments of rent made
by Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Owner shall serve a termination notice as provided
for herein, Owner shall make the repairs and restorations to the demised
premises and the building under the conditions of (b) and (c) hereof, with all
reasonable expedition, subject to delays due to adjustment of insurance claims,
labor troubles and causes beyond Owner's control. After any such casualty,
Tenant shall cooperate with Owner's restoration by removing from the premises as
promptly as reasonably possible, all of Tenant's salvageable inventory and
moveable equipment, furniture, and other property. Tenant's liability for rent
shall resume five (5) days after written notice from Owner that the premises are
substantially ready for Tenant's occupancy and Owner is delivering possession of
the demised premises to Tenant.
(e) Nothing contained hereinabove shall relieve Tenant from liability that
may exist as a result of damage from fire or other casualty. Notwithstanding
the foregoing, including Owner's obligation to restore under subparagraph (b)
above, each party shall look first to any insurance in its favor before making
any claim against the other party for recovery for loss or damage resulting from
fire or other casualty, and to the extent that such insurance is in force and
collectible and to the extent permitted by law. Owner and Tenant each hereby
releases and waives all right of recovery with respect to subparagraphs (b), (d)
and (e) above, against the other or any one claiming through or under each of
them by way of subrogation or otherwise. The release and waiver herein referred
to shall be deemed to include any loss or damage to the demised premises and/or
to any personal property, equipment, trade fixtures, goods and merchandise
located therein. The foregoing release and waiver shall be in force only if
both releasors' insurance policies contain a clause providing that such a
release or waiver shall not invalidate the insurance. If, and to the extent,
that such waiver can be obtained only by the payment of additional premiums,
then the party benefiting from the waiver shall pay such premium within ten days
after written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same.
(f) Tenant hereby waives the provisions of Section 227 of the Real Property
Law and agrees that the provisions of this article shall govern and control in
lieu thereof. If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty and repair and restoration of the same is not
substantially completed within 150 days after such fire or other casualty,
Tenant may give Owner written notice that unless the repair and restoration of
said demised premises is substantially completed within 30 days after the date
of such notice, Tenant
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will end the term of this Lease. In the event such repair and restoration is not
substantially completed within 30 days after the date of such notice, Tenant may
at any time thereafter and prior to substantial completion of such repair and
restoration give Owner a second notice ending the term of this Lease, whereupon
the term of this Lease shall end on the date of such second notice as if such
date was the date set forth in this Lease for the end of the term of this Lease.
10. EMINENT DOMAIN:
If the whole or any part of the demised premises shall be acquired or condemned
by Eminent Domain for any public or quasi public use or purpose, then and in
that event, the term of this lease shall cease and terminate from the date of
title vesting in such proceeding and Tenant shall have no claim for the value of
any unexpired term of said Lease and assigns to Owner, Tenant's entire interest
in any such award. Tenant shall have the right to make an independent claim to
the condemning authority for the value of Tenant's moving expenses and personal
property, trade fixtures and equipment, provided Tenant is entitled pursuant to
the terms of the Lease to remove such property, trade fixture and equipment at
the end of the term and provided further such claim does not reduce Owner's
award.
11. ASSIGNMENT, MORTGAGE, ETC.:
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Tenant, for itself, its heirs, distributees, executors, administrators, legal
representative, successor and assigns, expressly covenants that it shall not
assign, mortgage or encumber this agreement, nor underlet, or suffer or permit
the demised premises or any part thereof to be used by others, without the prior
written consent of Owner in each instance. Transfer of the majority of the
stock of a corporate Tenant or the majority partnership interest of a
partnership Tenant shall be deemed an assignment. If this lease be assigned, or
if the demised premises or any part thereof be underlet or occupied by anybody
other than Tenant, Owner may, after default by Tenant, collect rent from the
assignee, under-tenant or occupant and apply the net amount collected to the
rent herein reserved but no such assignment underletting occupancy or collection
shall be deemed a waiver of this covenant, or the acceptance of the assignee,
under-tenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of tenant herein contained. The
consent by Owner to an assignment or underletting shall not in any wise be
construed to relieve Tenant from obtaining the express consent in writing or
Owner to any further assignment or underletting. See Article 61 of this Lease.
12. ELECTRIC CURRENT:
Rates and conditions in respect to submetering or rent inclusion, as the case
may be, to be added in RIDER attached hereto. Tenant covenants and agrees that
at all times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation and Tenant
may not use any electrical equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the building. The change at any time of the character of
electric service shall in no wise make Owner liable or responsible to Tenant,
for any loss, damages or expenses which Tenant may sustain. In the event
electrical service to the demised premises is discontinued for five consecutive
business days and as a result thereof the demised premises become untenantable
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and Tenant ceases to occupy the demised premises for the conduct of Tenant's
business, then rent and escalations shall be abated commencing on the sixth such
business day and continuing until the earlier of the date the demised premises
become tenantable or Tenant resumes the conduct of Tenant's business in the
demised premises.
13. ACCESS TO PREMISES.
Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and, at other
reasonable times on reasonable prior notice, which may be oral, to examine the
same and to make such repairs, replacements and improvements as Owner may deem
necessary and reasonably desirable to the demised premises or to any other
portion of the building or which Owner may elect to perform. Tenant shall
permit Owner to use and maintain and replace pipes and conduits in and through
the demised premises and to erect new pipes and conduits therein provided they
are concealed within the walls, floor, or ceiling. Owner may, during the
progress of any work in the demised premises, take all necessary materials and
equipment into said premises without the same constituting an eviction nor shall
the Tenant be entitled to any abatement of rent while such work is in progress
nor to any damages by reason of loss or interruption of business or otherwise.
Owner agrees to use good faith, reasonable efforts to minimize interference with
Tenant's business. Throughout the term hereof Owner shall have the right to
enter the demised premises at reasonable hours for the purpose of showing the
same to prospective purchasers or mortgagees of the building, and during the
last six months of the term for the purpose of showing the same to prospective
tenants. If Tenant is not present to open and permit an entry into the demised
premises, Owner or Owner's agents may enter the same whenever such entry may be
necessary or permissible by master key or forcibly and provided reasonable care
is exercised to safeguard Tenant's property, such entry shall not render Owner
or its agents liable therefor, nor in any event shall the obligations of Tenant
hereunder be affected.
14. VAULT, VAULT SPACE, AREA:
No vaults, vault space or area, whether or not enclosed or covered, not within
the property line of the building is leased hereunder, anything contained in or
indicated on any sketch, blue print or plan, or anything contained elsewhere in
this Lease to the contrary notwithstanding. Owner makes no representation as to
the location of the property line of the building. All vaults and vault space
and all such areas not within the property line of the building, which Tenant
may be permitted to use and/or occupy, is to be used and/or occupied under a
revocable license, and if any such license be revoked, or if the amount of such
space or area be diminished or required by any federal, state or municipal
authority or public utility, Owner shall not be subject to any liability nor
shall Tenant be entitled to any compensation or diminution or abatement of rent,
nor shall such revocation, diminution or requisition be deemed constructive or
actual eviction. Any tax, fee or charge of municipal authorities for such vault
or area shall be paid by Tenant.
15. OCCUPANCY:
Tenant will not at any time use or occupy the demised premises in violation of
the certificate of occupancy issued for the building of which the demised
premises are a part Owner hereby
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represents and warrants to Tenant that the use of the demised premises for
general office purposes shall not violate the certificate of occupancy issued
for the building of which the demised premises are a part. Tenant has inspected
the premises and accepts them as is, subject to the riders annexed hereto with
respect to Owner's work, if any and any latent defects. In any event, Owner
makes no representation as to the condition of the premises and Tenant agrees to
accept the same subject to violations, whether or not of record; provided in no
event shall Tenant have any liability for or obligation to cure any violations
of record on the date of execution of this Lease; Owner hereby agrees promptly
to cure any violations of record on the date of execution of this lease which
prevent the permitted use of the demised premises.
16. BANKRUPTCY:
(a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by the sending of a written notice to Tenant
within a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor and failure of Tenant to cause such case (if
involuntary) to be dismissed within 60 days of the date of the filing thereof,
or (2) the making by Tenant of an assignment or any other arrangement for the
benefit of creditors under any state statute. Neither Tenant nor any person
claiming through or under Tenant, or by reason of any statute or order of court,
shall thereafter be entitled to possession of the premises demised but shall
forthwith quit and surrender the premises. If this lease shall be assigned in
accordance with its terms, the provisions of this Article 16 shall be applicable
only to the party then owning Tenant's interest in this Lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this Lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of interest on U.S. Treasury obligations maturing at or
about the date such installment of rent is due. If such premises or any part
thereof be re-let by the Owner for the unexpired term of said lease, or any part
thereof, before presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such re-letting shall
be deemed to be the fair and reasonable rental value for the part or the whole
of the premises so re-let during the term of the re-letting. Nothing herein
contained shall limit or prejudice the right of the owner to prove for and
obtain as liquidated damages by reason of such termination, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
17. DEFAULT:
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(1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises become vacant or deserted; or if any execution or attachment
shall be issued against Tenant or any of Tenant's property whereupon the demised
premises shall be taken or occupied by someone other than Tenant; or if this
lease be rejected under (S)235 of Title 11 of the U.S. Code (bankruptcy code);
or if Tenant shall fail to move into or take possession of the premises within
thirty (30) days after the commencement of the term of this lease, then, in any
one or more of such events, upon Owner serving a written fifteen (15) days,
notice upon tenant specifying the nature of said default and upon the expiration
of said fifteen (15) days if Tenant shall have failed to comply with or remedy
such default, or if the said default or omission complained of shall be of a
nature that the same cannot be completely cured or remedied within said fifteen
(15) day period, and if tenant shall not have diligently commenced curing such
default within such fifteen (15) day period, and shall not thereafter with
reasonable diligence and in good faith, proceed to remedy or cure such default,
then Owner may serve a written five (5) days' notice of cancellation of this
Lease upon Tenant, and upon the expiration of said five (5) days this Lease and
the term thereunder shall end and expire as fully and completely as if the
expiration of such five (5) day period were the day herein definitely fixed for
the end and expiration of this lease and the term thereof and Tenant shall then
quit and surrender the demised premises to Owner but Tenant shall remain liable
as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and the
term shall expire as aforesaid; or if Tenant shall make default in the payment
of the rent reserved herein or any item of additional rent herein mentioned or
any part of either or in making any other payment herein required and such
default shall continue for 10 days after the same is due (which 10 days may run
concurrently with any statutory notice period), then and in any of such events
Owner may without further notice, re-enter the demised premises either by force
or otherwise, and dispossess Tenant by summary proceedings or otherwise, and the
legal representative of Tenant or other occupant of demised premises and remove
their effects and hold the premises as if this Lease had not been made, and
Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end.
18. Remedies of Owner and Waiver of Redemption: In case of any such default,
------------------------------------------
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, (b) Owner may re-let the premises or any part or
parts thereof, either in the name of Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in this lease,
and/or (c) Tenant or the legal representatives or Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the demised premises for each
month of the period which would otherwise have constituted the balance of the
term of this lease. The failure of Owner to re-let the premises or any part of
parts thereof shall not release or affect Tenant's liability for damages. In
computing such liquidated damages there shall be added to the said deficiency
such expenses,
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as owner may incur in connection with reletting, such as legal expenses,
reasonable attorneys' fees, brokerage, advertising and for keeping the demised
premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for re-
rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
reletting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
19. FEES AND EXPENSES.
If Tenant shall default in the observance or performance of any term or covenant
on Tenant's part to be observed or performed under or by virtue of any of the
terms or provisions in any article of this lease, after notice if required and
upon expiration of any applicable grace period if any, (except in an emergency),
then, unless otherwise provided elsewhere in this lease, Owner may immediately
or at any time thereafter and without further notice perform the obligation of
Tenant thereunder. If Owner, in connection with the foregoing or in connection
with any default by Tenant in the covenant to pay rent hereunder, makes any
expenditures or incurs any obligations for the payment of money, including but
not limited to reasonable attorneys' fees, in instituting, prosecuting or
defending any action or proceeding, and prevails in any such action or
proceeding then Tenant will reimburse Owner for such sums so paid or obligations
incurred with interest and costs. The foregoing expenses incurred by reason of
Tenant's uncured defaults shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within ten (10) days of rendition of any xxxx
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner, as damages.
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20. BUILDING ALTERATIONS AND MANAGEMENT:
Owner shall have the right at any time without the same constituting an eviction
and without incurring liability to Tenant therefor to change the arrangement
and/or location of public entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or other public parts of the building and to change
the name, number or designation by which the building may be known. There shall
be no allowance to Tenant for diminution of rental value and no liability on the
part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner or other Tenants making any repairs in the building or any
such alterations, additions and improvements. Furthermore, Tenant shall not
have any claim against Owner by reason of Owner's imposition of such controls of
the manner of access to the building by Tenant's social or business visitors as
the Owner may deem necessary for the security of the building and its occupants.
Such controls shall not be applied in a discriminatory manner against Tenant or
Tenant's invitees.
21. No Representations by Owner. Neither Owner nor Owner's agents have made
---------------------------
any representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building
and the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" and acknowledges that the taking of possession
of the demised premises by Tenant shall be conclusive evidence that the said
premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as to
latent defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
22. END OF TERM:
Upon the expiration or other termination of the term of this lease, Tenant shall
quit and surrender to Owner the demised premises, broom clean, in good order and
condition, ordinary wear and tear and other damages which Tenant is not required
to repair as provided elsewhere in this lease excepted, and Tenant shall remove
all its property. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of this lease. If the last day of
the term of this Lease or any renewal thereof, falls on Sunday, this lease shall
expire at noon on the preceding Saturday unless it be a legal holiday in which
case it shall expire at noon on the preceding business day.
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23. QUIET ENJOYMENT:
Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 31
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
24. FAILURE TO GIVE POSSESSION:
If permission is given to Tenant to enter into the possession of the demises
premises or to occupy premises other than the demised premises prior to the date
specified as the commencement of the term of this lease, Tenant covenants and
agrees that such possession and/or occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease except the obligation
to pay the fixed annual rent set forth in the preamble to this lease. The
provisions of this article are intended to constitute "an express provision to
the contrary" within the meaning of Section 223-a of the New York Real Property
Law.
25. NO WAIVER:
The failure of Owner to seek redress for violation of, or to insist upon the
strict performance of any covenant or condition of this lease or of any of the
Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent
a subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of rent
and/or additional rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this Lease provided. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No employee of Owner or Owner's agent
shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
26. WAIVER OF TRIAL BY JURY:
It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any
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matters whatsoever arising out of or in any way connected with this lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of said premises,
and any emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Owner commences any proceeding or action for
possession including a summary proceeding for possession of the premises, Tenant
will not interpose any counterclaim of whatever nature or description in any
such proceeding including a counterclaim under Article 4 except for statutory
mandatory counterclaims. Nothing in this Article shall preclude Tenant from
commencing a separate plenary action.
27. INABILITY TO PERFORM:
This Lease and the obligation of Tenant to pay rent hereunder and perform all of
the other covenants and agreements hereunder on part of Tenant to be performed
shall in no wise be affected, impaired or excused because Owner is unable to
fulfill any of its obligations under this lease or to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is unable to
make, or is delayed in making any repair, addition, alterations or decorations
or is unable to supply or is delayed in supplying any equipment, fixtures, or
other materials if Owner is prevented or delayed from so doing by reason of
strike or labor troubles or any cause whatsoever including, but not limited to,
government preemption or restrictions or by reason of any rule, order or
regulation of any department or subdivision thereof of any government agency or
by reason of the condition which have been or are affected, either directly or
indirectly, by war or other emergency.
28. BILLS AND NOTICES:
Except as otherwise in this lease provided, a xxxx, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail or recognized overnight
courier addressed to Tenant at the building of which the demised premises form a
part or at the last known business address of Tenant and the time of the
rendition of such xxxx or statement and of the giving of such notice or
communication shall be deemed to be the time when the same is delivered to
Tenant or mailed, as herein provided. Any notice by Tenant to Owner must be
served by registered or certified mail or recognized overnight courier addressed
to Owner at the address first hereinabove given or at such other address as
Owner shall designate by written notice. All notices sent to Tenant pursuant to
the terms of this Lease shall also be copied to Tenant at the following address:
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
with copy to:
Xxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxx
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1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
29. SERVICES PROVIDED BY OWNERS:
Owner shall provide: (a) elevator facilities on business days from 8 a.m. to 6
p.m. and have one elevator subject to call at all other times; (b) heat to the
demised premises when and as required by law, on business days from 8 a.m. to 6
p.m.; (c) water for ordinary lavatory and drinking purposes, but if Tenant uses
or consumes water for any other purposes or in unusual quantities (of which fact
Owner shall be the sole judge), Owner may install a water meter at Tenant's
expense which Tenant shall thereafter maintain at Tenant's expense in good
working order and repair to register such water consumption and Tenant shall pay
for water consumed as shown on said meter as additional rent as and when bills
are rendered; (d) cleaning service for the demised premises on business days at
Owner's expense provided that the same are kept in order by Tenant. No one
other than persons approved by Owner shall be permitted to enter said premises
or the building of which they are a part for such purpose. Tenant shall pay
Owner the cost of removal of any of Tenant's refuse and rubbish from the
building. If Tenant requires air conditioning/cooling or ventilation for more
extended hours or on Saturdays, Sundays or on holidays, as defined under Owner's
contract with Operating Engineers Local 94-94A, Owner will furnish the same at
Tenant's expense. Rider to be added in respect to rates and conditions for such
additional service; (f) Owner reserves the right to stop services of the
heating, elevators, plumbing, air-conditioning, electric, power systems or
cleaning or other services if any, when necessary by reason of accident or for
repairs, alterations, replacements or improvements necessary or desirable in the
judgment of Owner for as long as may be reasonably required by reason thereof.
If the building of which the demised premises are a part supplies manually
operated elevator service, Owner at any time may substitute automatic control
elevator service and proceed diligently with alterations necessary therefor
without in any wise affecting this lease or the obligation of Tenant hereunder.
In the event the demised premises become untenantable for five or more
consecutive business days as a result of the failure to provide any of the
foregoing services and as a result thereof Tenant ceases to occupy the demised
premises for the conduct of Tenant's business, then rent and escalation's shall
xxxxx commencing on the sixth such business day and continuing until the earlier
of the date the demised premises become tenantable or the date Tenant resumes
the conduct of Tenant's business in the demised premises.
30. CAPTIONS:
The Captions are inserted only as a matter of convenience and for reference and
in no way define, limit or describe the scope of this lease nor the intent of
any provisions thereof.
31. DEFINITIONS:
The term "office" or "offices", wherever used in this lease, shall not be
construed to mean premises used as a store or stores, for the sale or display,
at any time, of goods, wares or merchandise, of any kind, or as a restaurant,
shop, booth, bootblack or other stand, xxxxxx shop, or for other similar
purposes or for manufacturing. The term "Owner" means a landlord or
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lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder arising subsequent to a sale
and it shall be deemed and construed without further agreement between the
parties or their successors in interest, or between the parties and the
purchaser, at any such sale, or the said lessee of the building, or of the land
and building, that the purchaser or the lessee of the building has assumed and
agreed to carry out any and all covenants and obligations of Owner, hereunder.
The words "re-enter" and "re-entry" as used in this lease are not restricted to
their technical legal meaning. The term "business days" as used in this lease
shall exclude Saturdays, Sundays and all days as observed by the State or
Federal Government as legal holidays and those designated as holidays by the
applicable building service union employees service contract or by the
applicable Operating Engineers contract with respect to HVAC service. Wherever
it is expressly provided in this lease that consent shall not be unreasonably
withheld, such consent shall not be unreasonably delayed.
32. ADJACENT EXCAVATION-SHORING:
If an excavation shall be made upon land adjacent to the demised premises, or
shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of rent.
33. RULES AND REGULATIONS:
Tenant and Tenant's servants, employees, agents, visitors, and licensees shall
observe faithfully, and comply strictly with, the Rules and Regulations and such
other and further reasonable rules and Regulations as Owner or Owner's agents
may from time to time adopt. Notice of any additional rules or regulations
shall be given in such manner as Owner may elect. In case Tenant disputes the
reasonableness of any additional Rule or Regulation hereafter made or adopted by
Owner or Owner's agents, the parties hereto agree to submit the question of he
reasonableness of such Rule or Regulation for decision to the New York office of
the American Arbitration Association, whose determination shall be final and
conclusive upon the parties hereto. The right to dispute the reasonableness of
any additional Rule or Regulation upon Tenant's part shall be deemed waived
unless the same shall be Asserted by service of a notice, in writing upon Owner
within thirty (30) days after the giving of notice thereof. Nothing in this
lease contained shall be construed to impose upon Owner any duty or obligation
to enforce the Rules and Regulations or terms, covenants or conditions in any
other lease, as against any other tenant and Owner shall not be liable to Tenant
for violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees. Owner shall enforce the rules and regulations in a
manner which shall not be discriminatory against Tenant.
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34. SECURITY:
Tenant has deposited with Owner the sum of $83,300.00 as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency in the re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants, and conditions of this lease, the security
shall be returned promptly to Tenant after the date fixed at the end of the
Lease and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee or lessee and Owner shall thereupon be released by
Tenant from all liability for the return of such security, and Tenant agrees to
look to the new Owner solely for the return of said security, and it is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new Owner. Tenant further covenants that it will not assign
or encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
On or after the date five years after the Commencement Date, provided that
Tenant is not then in default or if tenant is in default provided hat Tenant
shall have cured such default, owner shall return to tenant $41,650 of the
security then held Owner provided that Owner shall continue to hold at least
$41,650 of security.
35. ESTOPPEL CERTIFICATE:
Tenant, at any time, and from time to time, upon at least 10 days' prior notice
by Owner, shall execute, acknowledge and deliver to Owner, and/or to any other
person, firm or corporation specified by Owner, a statement certifying that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), stating the dates to which the rent and additional rent have
been paid, and stating whether or not there exists any default by owner under
this Lease, and, if so, specifying each such default. On Tenant's request,
Owner will furnish a similar certificate.
36. SUCCESSORS AND ASSIGNS:
The covenants, conditions and agreements contained in this lease shall bind and
inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building, the rents with respect thereto and all
insurance and condemnation proceeds for the satisfaction of Tenant's remedies
for the collection
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of a judgment (or other judicial process) against Owner in the event of any
default by Owner hereunder, and no other property or assets of such Owner (or
any partner, member, officer or director thereof, disclosed or undisclosed),
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this lease, the
relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of the
demised premises.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
00 XXXX 00XX XXXXXX LLC
Witness for Owner: by Xxxxxx X. Day Realty Corp., Agent
(Owner)
------------------------------ By: ----------------------------------
THE COLLEGE TELEVISION NETWORK, INC.
(Tenant)
Witness for Tenant:
------------------------------- By: -----------------------------------
ACKNOWLEDGMENTS
CORPORATE OWNER
STATE OF NEW YORK, ss.:
County of
On this ____ day of ____________________, 199__, before me personally came
_________________, to me known, who being by me duly sworn, did depose and say
that he resides in _________________________ ; that he is the
________________________ of ________________________________ the corporation
described in and which executed the foregoing instrument, as OWNER; that he
knows the seal of said corporation; the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that he signed his name thereto by like order.
--------------------------------
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XXXXXXXXX XXXXXX
XXXXX XX XXX XXXX, ss.:
County of
On this ____ day of ____________________, 199__, before me personally came
_________________, to me known, who being by me duly sworn, did depose and say
that he resides in _________________________ ; that he is the
________________________ of ________________________________ the corporation
described in and which executed the foregoing instrument, as TENANT; that he
knows the seal of said corporation; the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that he signed his name thereto by like order.
-------------------------------------------
INDIVIDUAL OWNER
STATE OF NEW YORK
County of
On this ____ day of ____________________, 199__, before me personally came
_________________, to be known and known to me to be the individual described in
and who, as OWNER, executed the foregoing instrument and acknowledged to me that
he executed the same.
-------------------------------------------
INDIVIDUAL TENANT
STATE OF NEW YORK
County of
On this ____ day of ____________________, 199__, before me personally came
_________________, to be known and known to me to be the individual described in
and who, as TENANT, executed the foregoing instrument and acknowledged to me
that he executed the same.
------------------------------------------
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said premises clean and free from ice, snow, dirt and
rubbish.
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2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive to Owner or other
occupants of the building by reason of noise, odors, and/or vibrations, or
interfere in any way with other Tenants or those having business therein, nor
shall any bicycles, vehicles, animals, fish, or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of
the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same is visible from the outside or the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability, and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner. Owner shall furnish Tenant with 10 listings per
floor on the building directory in the lobby for the building.
6. Except in connection with Tenant's work (hereinafter defined), no Tenant
shall xxxx, paint, drill into, or in any way deface any part of the demised
premises or the building of which they form a part. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
Owner, and as Owner may direct. No Tenant shall lay linoleum, or other similar
floor covering, so that the same shall come in direct contact with the floor of
the demised premises, and, if linoleum or other similar floor covering is
desired to be used an interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
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8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these rules and Regulations of the
lease or which these rules and regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and each
Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building all persons who do
not present a pass to the building signed by Owner. Owner will furnish passes
to persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such persons. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
11. Owner shall have the right to prohibit any advertising by any Tenant which
in Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for officers, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable, combustible, explosive, or hazardous fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
13. If the building contains central air conditioning and ventilation, Tenant
agrees to keep all windows closed at all times and to abide by all rules and
regulations issued by Owner with respect to such services. If Tenant requires
air conditioning or ventilation after the usual hours, Tenant shall give notice
in writing to the building superintendent prior to 3:00 p.m. in the case of
after hours services required on weekdays' and prior to 3:00 p.m. the day prior
in case of after hours service required on weekends or on holidays Tenant shall
cooperate with Owner in obtaining maximum effectiveness of the cooling system by
lowering and closing venetian blinds and/or drapes and curtains when the sun's
rays fall directly on the windows of the demised premises.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of building without Owner's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours as Owner may designate.
15. Refuse and Trash, (1) Compliance by Tenant. Tenant covenants and agrees,
at its sole costs and expense, to comply with all present and future laws,
orders, and regulations of all state,
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federal, municipal, and local governments, departments, commissions and boards
regarding the collection, sorting, separation and recycling of waste products,
garbage, refuse and trash. Tenant shall sort and separate such waste products,
garbage refuse and trash into such categories as provided bylaw. Each separately
sorted category of waste products, garbage, refuse and trash shall be placed in
separate receptacles provided by the building cleaners. Such separate
receptacles may, at Owner's option, be removed from the demised premises in
accordance with a collection schedule prescribed by law. Tenant shall remove, or
cause to be removed by a contractor acceptable to Owner, at Owner's sole
discretion, such items as Owner may expressly designate. (2) Owner's Rights in
Event of Noncompliance. Owner has the option to refuse to collect or accept from
Tenant as waste products, garbage, refuse or trash (a) that is not separated and
sorted as required bylaw or (b) which consists of such items (other than
standard office rubbish) as Owner may expressly designate for Tenant's removal,
and to require Tenant to arrange for such collection at Tenant's sole cost and
expense, utilizing a contractor satisfactory to Owner. Tenant shall pay all
costs, expenses, fines, penalties, or damages that may be imposed on Owner or
Tenant by reason of Tenant's failure to comply with the provisions of this
Building Rule 15, and, at Tenant's sole costs and expense, shall indemnity,
defend and hold Owner harmless (including reasonable legal fees and expenses)
from and against any actions, claims and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to Owner.
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STANDARD LEASE RIDER
37. RIDER PROVISIONS PARAMOUNT. If and to the extent that any of the
provisions of this Rider conflict or are otherwise inconsistent with any of the
preceding printed provisions of this Lease, whether or not such inconsistency is
expressly noted in this Rider, the provisions of this Rider shall prevail, and
in a case of inconsistency with the Rules and Regulations, shall be deemed a
waiver of such Rules and Regulations with respect to this Tenant to the extent
of such inconsistency.
38. BINDING EFFECT. It is specially understood and agreed that this Lease is
offered to Tenant for signature by the managing Agent of the Building solely in
its capacity as such Agent and subject to Owner's acceptance and approval, and
that Tenant shall have affixed its signature hereto with the understanding that
such act shall not, in any way, bind Owner or its Agent until such time as this
Lease shall have been approved and executed by the managing Agent or the Owner
and delivered to Tenant.
39. REAL ESTATE TAX ESCALATION. Tenant shall pay Owner as additional rents the
amounts set forth in this Article 39.
A. The following definitions shall apply:
1. "Taxes" shall mean the real estate taxes and assessments and special
assessments imposed upon the Building by any governmental bodies or authorities
for any purpose whatsoever or any other governmental charges whether general or
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special, ordinary or extraordinary, foreseen or unforeseen, which may be levied
or assessed with respect tot he Building during the term of this Lease or any
renewal thereof whether the increase results from a higher tax rate or an
increase in the assessed value of the Building or both or other means of
increase. If at any time after the date hereof the methods of taxation
prevailing on the date hereof shall be altered so that in lieu of, or as an
addition to or as a substitute for the whole or any part of the taxes,
assessments, levies, impositions or charges now levied, assessed or imposed on
real estate and the improvements thereof, there shall be levied, assessed,
imposed (i) a tax, assessment, levy or otherwise on the rents received
therefrom, or (ii) a license fee measured by the rent payable by Tenant to
Owner, or (iii) any other additional or substitute tax, assessment, levy,
imposition or charge, then all such taxes, assessments, levies, impositions to
charges or the part thereof so measured or based shall be deemed to be included
within the term "Taxes" for the purpose hereof. Taxes shall not include any
inheritance, estate, succession, transfer, gift, franchise, corporation, income
or profit tax or excess profits that is or may be imposed upon Owner. Tenant
agrees to pay Tenant's Share of the actual costs incurred by Owner in any tax
protest or reduction proceedings, including attorneys, accountants and
appraiser's fees and any filing or court fee or other costs, disbursements or
expenses incurred with relation to each Tax Year during the term of this Lease.
2. "Base Tax" shall mean Taxes, as finally determined by settlement,
court decision or otherwise, for the fiscal Tax Yea ending June 30, 1998.
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3. "Tax Year" shall mean the fiscal year for which Taxes are levied by
the governmental authority.
4. "Tenant's Share" shall be 11 percent (11%) throughout the term of
this Lease irrespective of the bulk of the Building and the Demised Premises and
any additions or demolition at any time during the term hereof.
5. "Building" shall mean the land and building known as 00 Xxxx 00xx
Xxxxxx in the borough of Manhattan, city and state of New York of which the
Demised Premises form a part.
B. 1. If, for any reason, the Taxes for any Tax Year shall be more that
the Base Tax, tenant shall pay as additional rent for such Tax Year an amount
equal to Tenant's Share of the amount by which the Taxes for such Tax Year are
greater than the Base Tax. (The amount payable by Tenant is hereinafter called
the "Tax Payment"). Owner or Agent shall furnish Tenant with a statement
showing the calculations for any year in which a Tax Payment is due and if
requested with copies of the tax bills.
2. In the event the Base Tax is reduced as a result of settlement,
court decision or of any other appropriate proceeding or agreement, Owner shall
have the right to adjust the amount of Tax Payment due from tenant for any Tax
Year in which Tenant is o was obligated to pay a Tax Payment hereunder to
reflect the new Base Tax, and Tenant agrees to pay the amount of said adjustment
on the next rental installment day immediately following receipt of a rent
statement from owner setting forth the amount of said adjustment.
C. With respect to any period at the commencement or expiration of the
term, which shall constitute a partial Tax Year, Owner's statement shall
apportion the amount of Tax Payment due hereunder.
D. Beginning with the first Tax Year in which Taxes are greater that the
Base Tax, the Tax Payment for that year and subsequent years shall be paid the
same manner of installments as Taxes are paid by Owner to the taxing authority,
such payments to be required when billed but no earlier than 30 days before each
such installment is due to be paid to the taxing authority.
E. Owner shall be under no obligation to contest the Taxes or the assessed
valuation of the land and the Building for any Tax Year or to refrain from
contesting the same, and may settle any such contest on such terms as owner in
its sole judgment considers proper.
F. Owner's failure during the Lease term to prepare and deliver any
statements or xxxx for Tax Payment, or Owner's failure to make a demand under
this Article 39 or under any other provisions of this Lease shall not in any way
be deemed to be a waiver of or cause Owner to forfeit or surrender its right to
collect any items of additional rent which may have become due pursuant to this
Article 39 so long as Owner delivers to Tenant a xxxx for a Tax Payment within
one year after the expiration of the Tax Year for which such Tax Payment is due,
or any other
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article of this Lease during the term of this Lease. Tenant's liability for the
additional rent due under this Article 39 shall survive the expiration or sooner
termination of this Lease.
G. In no event shall any adjustment of Tax Payments, hereunder result in a
decrease of the fixed rent or additional rent payable pursuant to any other
provisions of this Lease, it being agreed that the payment of additional rent
under this Article 39 is an obligation supplemental and in addition to Tenant's
obligation to pay fixed rent.
H. It is understood by Tenant that Owner may obtain and accept reductions
in the proposed assessed valuation of the Building in a settlement in a Tax Year
during the term of this Lease before the Owner has paid the Taxes and such
reduction will substantially reduce the real estate tax escalation for the Tax
Year due from Tenant under this Article. Tenant therefore agrees the expenses
of the Owner in obtaining such reduction, including reasonable legal fees,
accounting fees, appraisal fees and other expenses shall be deemed o be Taxes
paid for the Tax Year of said reduction.
In the event the Taxes for any Tax Year during the term of this Lease shall
be reduced after Tenant shall have paid Tenant's share of any excess thereof in
respect of such Tax Year pursuant to this Article, Owner shall allow Tenant a
credit against future rent, or issue a refund to Tenant (if the term of this
Lease shall have expired) in the amount of Tenant's Share of the refund
(including any interest paid on such refund by the taxing authority) of such
Taxes received by Owner (after deductions of expenses, including legal fees,
accounting fees, appraisal fees and other expense incurred by Owner in obtaining
such refund).
40. WAGE FORMULA INCREASE. If the Labor Rate for any Operation Year shall be
greater than the Base Labor Rate the Tenant shall, in case of such an excess,
pay to Owner as additional rent for the Demised Premises for such Operation Year
an amount equal to the product obtained by multiplying (i) the Wage Rate
multiplied by (ii) one cent per annum for each one cent that such Labor Rate is
over the Base rate. Any such annual adjustment payable by reason of the
provisions of the preceding sentence shall be due and payable in equal monthly
installment as of the first day of the first month of the relevant Operation
Year, and Owner or Agent shall furnish Tenant with an Escalation Statement
relating to such Operation Year. The aforesaid monthly installments shall
continue until a new adjustment becomes effective pursuant to the terms of this
Article 40. If said Escalation Statement is furnished to Tenant after the
commencement of any such Operations Year there shall be promptly paid by Tenant
to Owner an amount equal to the portion of such adjustments allocable to the
part of such Operation Year which shall have elapsed prior to the first day of
the calendar month next succeeding the calendar month in which said Escalation
Statement is furnished to Tenant. Any such adjustment billed to Tenant shall be
deemed additional rent.
As used in this Article 40, the words and terms which follow mean and include
the following:
(a) "Operation Year" shall men each calendar year in which occurs any part
of the term of this Lease.
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(b) "Wage Rate Multiple" shall be 7140.
(c) "Hourly Wage Rate" as used herein shall mean the minimum regular hourly
wage rate, social security and welfare fund contribution paid for the porters
(Others) engaged in the general maintenance and operation of Class A office
buildings pursuant to a collective bargaining agreement between Owner or Owner's
association and Local 32B of the Building Serviced Employees International Union
AFL-CIO (or any successor thereto). The Hourly Wage Rate shall include but not
limited to sums paid for fringe benefits for vacations, holidays, sick days,
birthdays, jury duty, medical check-ups, lunch hours, relief time and other paid
time off, bonuses, pensions, unemployment, disability, benefits, health, life,
accident, and other types of insurance, and other employee benefits. If any
such agreement is not entered into or such parties or their successors shall
cease to bargain collectively, the Hourly Wage Rate shall be the average of the
regular hourly wage rate and other sums aforesaid payable to or for the benefit
of porters engaged in the maintenance and operation of the Building and payable
by either Owner or the contractor furnishing such services, but not in excess of
the hourly minimum rate of wages and other sums as aforesaid for porters engaged
in the general maintenance and operations of building of the same type and in
the same vicinity as the Building and, provided further, that if there is no
such agreement as of any since January 1 by which the Hourly Wage Rate for
porters is determinable, computations and payments shall thereupon be made the
basis of the Hourly Wage Rate being paid by Owner or by the contractor
performing the cleaning for Owner on such January 1 for said porters and
appropriate retroactive adjustment shall thereafter be made when the Hourly Wage
Rate to be paid as of such January 1 pursuant to such agreement for porters is
finally determined and, provided further that, if as of the last day of such
Operation Year, no such agreement covering January 1 occurring in such Operation
Year shall have been in effect, the Hourly Wage Rate paid by Owner or by the
contractor performing the cleaning services for Owner on such January 1 for said
porters as the case may be shall be for all purposes hereof deemed to be such
Hourly Wage Rate prescribed by such agreement and in effect as of such January
1.
(d) "Base Labor Rate" shall mean the Labor Rate at December 31, 1998.
(e) "Labor Rate" for any Operation Year shall mean the Hourly Wage Rate for
porters.
(f) "Escalation Statement" shall mean a statement in writing submitted by
Owner or Agent, setting forth the amount payable by Tenant for a specified
Operation Year pursuant to this Article 40.
With respect to any period at the commencement or expiration of the term, which
shall constitute a partial Operation Year, Owner's statement shall apportion the
amount of the Wage Formula Increase due hereunder.
Owner's failure during the Lease term to prepare and deliver any notice,
statement or xxxx, or Owner's failure to make a demand, shall not in any way
cause Owner to forfeit or surrender
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Owner's right to collect any additional rent which may have become due during
the term of this Lease under this Article 40 so long as Owner shall xxxx Tenant
for the Wage Formula Increase under this Article within one year after the
expiration of the Operation Year for which such increase is due, and Tenant's
liability for amounts due under this Article 40 shall survive the termination of
this Lease.
The above Article 40 which pertains to "Wage Formula Increase" utilizes the
Hourly Wage Rate of employees as part of a formula for adjusting rent as agreed
by the parties and is not intended to reflect or be based upon the actual labor
costs or other expenses of the Building which are not relevant to the formula.
In no event shall any rent adjustment hereunder result in a decrease of the
fixed annual rent provided herein.
This Hourly Wage Rate attribute to "others" a/k/a porters under the Union
contract shall be used in computations under this Article whether or not xxxxxx
wages are actually paid by or, for Owner and, shall be the only rate used, even
if n outside cleaning contractor is employed which has a Local 32B labor
contract providing for a lower or higher rate.
41. OPERATING EXPENSE ESCALATION
Owner shall have the option in any Operation Year to impose an "Operating
Expense" increase for such Operation Year pursuant to this Article 41 in lieu of
the Wage Formula Increase for such year. As used herein, the term "Operating
Expense" shall mean all costs and expenses incurred by the Owner in connection
with the operation, servicing and the maintenance of the Building, except real
estate taxes, mortgage amortization and interest payments; expenses incurred in
leasing or procuring new tenants, including leasing commissions, advertising
expenses, legal fees and expenses of renovating space for new tenants; legal
expenses for enforcing the terms of any ground lease or any mortgage; wages,
salaries and other compensation paid to any executive employee above the grade
of building manager and the wages of any building manager shall be apportioned
to the extent the building manager supervises more than one building; capital
replacements, improvements and alterations for the building above the amount
amortized by Owner or Owner's tax return for that year; expenses for which Owner
has received insurance proceeds; electricity to the extent that the cost is
reimbursed to Owner by tenants. In the event that the Owner should eliminate
the payment of any ages to other labor costs as a result of the installation of
labor saving devices or by any other means, then in computing the additional
rent payable for Operating Expenses as provided hereunder, the corresponding
item or items of such wages to other labor costs shall be deducted from the
Operating Expenses for the Base Year. As used in this Article 41, the term
"Base Year" shall mean the calendar year 1998. In the event that the Operating
Expenses incurred by the Owner during any Operation Year following the Base Year
shall exceed the Operating Expenses incurred by Owner during the Base Year, the
Tenant shall pay to the Owner as additional rent for such Operating Year an
amount equal to 11 percent (11%) of such excess. Within six months subsequently
to the Operation Year following the Base Year, and within six months after each
Operation Year thereafter, the Owner shall endeavor to furnish to the Tenant a
statement of the Operating Expenses for the preceding Operation Year and a
statement of the Operation Expenses for the Base Year, and any additional rent
due the owner by reason of any increase in Operating Expenses for the Operation
Year over the
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Operating Expenses for the Base Year shall be paid by the Tenant within thirty
(30) days after receipt of the aforesaid statement. The statement of Operating
Expenses to be furnished by the Owner shall consist of data prepared for the
Owner by a firm of Certified Public Accountants (who may be the firm currently
employed by the Owner in connection with its accounts), and the statements thus
furnished to the Tenant shall constitute a final determination as between the
Owner and the Tenant of Operating Expenses for the periods represented thereby.
Anything in this Article 41 to the contrary notwithstanding, Tenant, within 60
days after receipt of an annual Statement of Operating Expenses from Owner,
shall have the right to contest, at Tenant's cost and expense, such
determination by retaining an accountant of Tenant's selection (to be paid by
Tenant) who shall have the right to audit at Tenant's expense Owner's books and
records with respect to Operating Expenses of the Building for the year or years
in question. If Owner's accountant and Tenant's accountant shall be unable to
reach agreement, then such two accountants shall designate a third accountant to
make the determination in accordance with this Article 41 and the determination
of such third accountant shall be binding and conclusive on both Owner and
Tenant. In the event that Owner's accountant and Tenant's accountant shall be
unable to agree upon the designation of a third accountant within twenty (20)
days, then either party shall have the right to request the Real Estate Board of
New York, Inc. to designate a third accountant whose decision shall be
conclusive and binding upon the parties. The costs of such third accountant
shall be borne equally by the Owner and Tenant. Notwithstanding the foregoing
provisions of this subparagraph, Tenant, pending the resolution of any contest
pursuant to the terms hereof shall continue to pay the increase in Operating
Expense Escalation as determined in the first instance by Owner's accountant and
upon the resolution of such contest, the same shall be adjusted in accordance
therewith with appropriate refund made to Tenant if required thereby. The
failure of Owner to submit bills in accordance with this Article 41 shall not be
deemed a waiver of Owner's right to xxxx for such periods nor release Tenant of
Tenant's obligations to pay these charges. so long as Owner delivers to Tenant a
xxxx for Operating Expenses within one year after the expiration of the
Operation year for which such Operating Expenses. The obligation to make any
payment pursuant to this Article 41 shall survive the expiration or sooner
termination for this Lease.
42. HEATING COSTS
Anything to the contrary notwithstanding and in addition to billing pursuant to
Articles 40 and 41 of this Lease, Tenant agrees that in the event Heating Costs
for any calendar year shall be greater that the Heating Costs for the calendar
year 1997 as a result of but not limited to increases in or additions to the
number of unites used, rate, fuel adjustments, taxes, surcharges, energy charges
or charges of any kind, Tenant agrees to pay to Owner within thirty (30) days
after receipt of Owner's statements, 11 percent (11%) of such excess for the
particular calendar year. In the event that Owner exercises its options
pursuant to Article 41 herein then during such Lease years, this Article 42
shall not apply. Heating Costs as used in this Article 42 shall; mean fuel
costs if Owner continues to use its own heating plant or the costs of outside
heating or steam of the Owner uses an off-premises heating service.
43. LOCAL LAWS
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If any alterations, installations, changes or improvements to the Building,
including, but not limited to, the Demised Premises are made by Owner in order
to comply with New York City Local Law No. 5 (fire protection) and New York City
Law No. 10 (building condition) as each may be amended to any successor or law
of like import, at any time after the date of this Lease and prior to the
expatiation date of this Lease the cost of any such alterations shall, for the
purpose of this Article 43, be deemed amortized by Owner in accordance with an
amortization schedule with a reasonable interest factor included therein,
determined by Owner in Owner's judgment, and during each calendar year which
shall include any part of the demised term for which such amortization shall be
applicable, Tenant shall pay to Owner a sum equal to 11 percent (11%) of such
amortization and interest applicable to such calendar year. Tenant shall not be
required to make any payment under this Article by reason of alterations
required to be made by laws in effect as of the date of execution of this Lease.
44. ADDITIONAL RENT
All escalation rents, additional rent and any and all other payments, charges
and sums due buy the Tenant to the Owner under this Lease whether or not
designated as such shall be deemed rent for all purposes thereunder and by law,
and the failure to pay any such amount shall subject the Tenant to the same
rights and remedies of the Owner including the right to commence summary
proceedings for nonpayment of rent as if such escalation rent, additional rent
and other payments, charges and sums due were Fixed Annual Base Rent hereunder.
45. ACCEPTANCE OF RENT
If Tenant is in arrears in the payment of fixed rent or additional rent, Tenant
waives its rights, if any, to designate the items in arrears against which any
payments made by Tenant are to be credited, and Owner may apply any of such
payments to any such items in arrears as Owner, in its sole discretion, shall
determine, irrespective of any designation or request by Tenant as to the items
against which any such payment shall be credited. No payment by Tenant nor
receipt by Owner of a lesser amount than may be required to be paid hereunder
shall be deemed to be other than on account of any payment nor shall any
endorsement or statement on any check or any letter accompanying any check
tendered as payment be deemed an accord and satisfaction and Owner may accept
such check or payment without prejudice to Owner's right to recover the balance
of such payment due or pursue any other remedy in this Lease provided or at law.
No receipt of monies by Owner from Tenant, after any reentry or after the
cancellation or termination of this Lease in any lawful manner shall reinstate
this Lease; and after the service of notice to terminate this Lease, or after
the commencement of any action, proceeding or other remedy, Owner may demand,
receive and collect any monies due and apply this on account of Tenant's
obligations under this Lease but without in any respect affecting such notice,
action, proceeding or remedy, except that if a money judgment is being sought in
any such action or proceeding, the amount of such judgment shall be reduced by
such payment. All checks rendered to the Owner as and for the rent of the
Demised Premises shall be deemed payments for the account of the Tenant.
Acceptance by the Owner of rent from anyone other than the Tenant shall not be
deemed to operate as an attornment to the Owner by the payor of such rent or as
a
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consent by the Owner to an assignment or subletting by the Tenant to the Demised
Premises to such payor, or as a modification of the provisions of this Lease.
46. LATE PAYMENT
If Tenant shall fail to pay any installment of rent, additional rent or other
charges when first due hereunder (irrespective of any grace period as may be
applicable thereto) and such payment was not received in the office of the
Owner's Agent on or before the tenth (10th) day after such payment was first
due, then interest at the rate of one and one half percent (1-1/2%) per month
for each month or portion of a month may be charged on such sum not paid or
portion of a month may be charged on such sum not paid when first due and
payable hereunder, and such interest shall be deemed to accrue as additional
rent hereunder and shall be paid to Owner upon demand made from time to time,
but in any event no later than the time of payment of the delinquent sum. If
such interest from time to time shall exceed the rate permitted under the laws
of the State of New York to be charged on late payments of sums money due
pursuant to a lease, then the interest shall be reduced to said legal maximum
rate. Such late charge shall be without prejudice to any of Owner's rights and
remedies hereunder for nonpayment of rent and shall be in addition thereto.
47. RENT CONTROL
If the annual base rental or any additional rent shall be or become
uncollectible, reduced or required to be refunded by virtue of any law,
governmental order or regulation, or direction of any public officer or body
pursuant to law, Tenant shall within ten (10) days of request enter into an
agreement or agreements and take such other action as Owner may request, as may
be legally permissible, to permit Owner to collect the maximum annual base rent
and additional rent which may from time to time during the continuance of such
rent restriction be legally permissible, but not in excess of the amounts of
annual base rent or additional rent payable under this Lease. Upon the
termination of such rent restriction prior to the termination of the term of
this Lease, (a) the annual base rent and additional rent, after such
termination, shall become payable under this Lease in the amount of the annual
base rent and additional rent set forth in this Lease for the period following
such termination, and (b) Tenant shall pay to Owner, to the maximum extent
legally permissible, and amount equal to (i) the annual base rent and additional
rent which would have been paid pursuant to this Lease but for such rent
restriction less (ii) the annual base rent and additional rent paid by Tenant to
Owner during the period that such rent restriction was in effect. This
provision shall survive the expiration or earlier termination of this Lease to
the maximum enforceable extent.
48. TENANT'S SECURITY
Owner shall unless prohibited by law or by the general policies of lending
institutions in New York City deposit the security in an interest-bearing
account with a bank selected by Owner. All interest which shall accrue on the
security shall be held as additional security in accordance with this Lease.
Owner shall be entitled to an administrative fee of 1% per year upon the
security
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deposited by the Tenant. On request of Tenant at the end of each calendar year,
Owner will furnish Tenant with a statement of security then held by Owner and
interest accrued thereon.
49. AIR CONDITIONING
It is understood and agreed that there has been installed in said Demised
Premises an air conditioning unit complete with ducts and registers. The air
conditioning system shall be operated and maintained during the term of this
Lease by the Tenant at the sole expense of the Tenant and at the expiration or
sooner termination of this Lease, the Tenant agrees to surrender said air
conditioning system to the Owner in good order and condition, reasonable wear
and tear and insured casualty and Owner's repairs excepted. The Tenant agrees
to enter into and keep in full force and effect at all times during the term of
this Lease a contract for the proper servicing and maintenance of said air
conditioning system with a contractor approved by the Owner and to pay the
charges for said maintenance contract and the air conditioning permit fees. Any
air conditioning units, ducts and registers installed by Tenant (other than
window units which do not replace existing window units) shall, upon
installation, become the property of Owner and be left in the Demised Premises
upon the termination of this Lease, and Tenant shall maintain said units as set
forth aforesaid in this Article. Any window air conditioners if permitted
pursuant to this Lease shall be installed so as not to project beyond the
Building line. It is further understood and agreed that the installation and
operation of any such window air conditioning unit or units in the Demised
Premises by the Tenant shall be in accordance with governmental regulations that
apply thereto and in accordance with building regulations, and that all costs
and expense in connection therewith shall be borne by the Tenant. Provided that
Tenant maintains the air conditioning maintenance contract required by this
Article with a contractor approved by Owner, Owner shall at Owner's cost and
expense repair or replace major components of the air conditioning system, if
necessary.
50. TENANT'S CLEANING
The Tenant for extra cleaning to be performed at Tenant's option agrees to
employ such office cleaning and maintenance contractor as the Owner may from
time to time designate for all waxing, polishing and maintenance work in the
Demised Premises above any cleaning services which shall be provided by Owner
pursuant to this Lease. The Tenant shall not employ any other contractor or
individual without the Owner's prior written consent which consent shall be in
Owner's sole discretion. Tenant recognizes that this provision is for the
security if the Building. The foregoing shall not preclude Tenant or its
employees from performing any of the foregoing work. In connection with all
refuse, Tenant agrees to comply with all governmental rules and regulations and
rules of the building xxxxxx as to separation of refuse and other refuse
recycling requirements and in connection therewith to pay for any required
refuse bags.
51. RESTRICTIONS ON USAGE
A. Tenant covenants and agrees that during the term of this Lease neither
Tenant, assignee not any subtenant (if the same are permitted pursuant to this
Lease) will use as its name or as part of its name (under which it conducts
business) any name which, regardless of the spelling
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thereof, has the same or similar sound or meaning as the words "MEDICAL CENTER",
"MEDICAL GROUP" or "MEDICAL TREATMENT CENTER".
B. Notwithstanding anything to the contrary contained in this Lease, Tenant
covenants and agrees that Tenant will not use the Demised Premises or any part
thereof or permit the Demised Premises or any part thereof to be used:
(a) for banking, trust company or safe deposit business;
(b) as or by a commercial or savings bank, as or by a trust company, as or
by a savings and loan association, as or by a loan company or as or by
a credit union;
(c) for the sale of traveler's checks and/or foreign exchange;
(d) as a restaurant and/or bar, and/or for the sale of soda and/or
beverages and/or food or sandwiches and/or ice cream and/or baked
goods;
(e) as a diagnostic medical center and/or for the practice of medicine or
health services;
(f) as a school of any kind including but not limited to the teaching of
or instructions or giving courses in either secretarial skills, and/or
languages and/or the operation of office equipment and/or business
machines;
(g) for telephone answering, messenger, photocopying, express mail
services for other than Tenant;
(h) as an employment, placement or recruiting agency or similar activity.
52. INDEMNIFICATION AND INSURANCE
Tenant agrees to indemnify and save Owner harmless from and against all
damages, liabilities, claims, costs and expenses, including reasonable
attorneys' fees, arising out of the use of the Demised Premises or the Building
or the adjacent sidewalks by Tenant, its employees, licensees, invitees, agents
and contractors, or any work or thing done, or any condition created by Tenant
or its employees, licensees, Agents or contractors whether or not caused by
negligence or breach of an obligation by Tenant. This provision shall survive
the termination of this Lease. The Tenant shall, at full replacement cost,
insure its alterations, improvements, inventory, trade fixtures, personal
property and equipment against property damage for the Tenant and the Owner's
benefit, as their respective interest may appear.
Tenant covenants to provide (and deliver proof thereof) on or before the
commencement date of the term hereof and to keep in force during the whole time
period Tenant occupies Demised Premises a fully paid comprehensive general
liability insurance policy covering but not limited to all the above mentioned
items in respect of the Demises Premises and the conduct and
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operation of business therein (and the sidewalks adjacent thereto) naming the
Owner as an additional insured with limits of $2,000,000 for bodily injury and
$250,000 property damage including water damage and sprinkler leakage legal
liability. At least 15 days prior to the expiration date of such policy, Tenant
shall deliver to owner a full paid renewal policy or insurance certificate.
Tenant agrees to deliver certificates of the insurance required by Article
3 of this Lease from contractors or subcontractors in reasonable amounts unless
otherwise required pursuant to Article 3.
All such policies shall be issued by companies of recognized responsibility
licensed to do business in the State of New York and shall contain a provision
whereby the same cannot be canceled or modified unless Owner is given at least
thirty (30) days' prior written notice by certified or registered mail of such
cancellation or modification.
If Tenant defaults in obtaining or delivering any such policy or policies
or fails to pay the premiums therefor, Owner may (but shall not be required to)
secure or pay for any such policy or policies and charge Tenant as additional
rent therefor. Such additional rent shall be payable by Tenant to Owner with
the fixed rent then next accruing. If Tenant defaults in paying the same with
interest to date of payment, Owner shall have the same rights and remedies on
account thereof as it has with respect to a default in the payment of the fixed
rent, including summary proceedings.
Owner represents that Owner maintains casualty and liability insurance on
the Building.
53. COST AND EXPENSES
All costs and expenses, including attorneys' fees incurred by Owner in and
about enforcing any of the covenants and conditions of this Lease shall be paid
by Tenant as additional rent, and if not previously paid, shall be included in
any judgment rendered in Owner's favor in any court of competent jurisdiction
and against Tenant herein.
54. SERVICE CART
Tenant expressly agrees that it shall not permit or obtain or accept the
delivery of any food or beverage by any vendor operating a service cart or
similar means of conveyance to the Demised Premises, except by any vendor as
shall be approved in advance by Owner in writing.
55. BROKER
Owner and Tenant each covenants, warrants and represents that there was no
broker except the managing Agent XXXXXX X. DAY REALTY CORP. instrumental in
consummating this lease and that no conversation or negotiations were had with
any broker except XXXXXX X. DAY REALTY CORP. concerning the renting of the
premises. Owner and Tenant each agrees to hold the other harmless against any
claims for a brokerage commission arising out of any
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conversations or negotiations had by the indemnifying party with any broker
except XXXXXX X. DAY REALTY CORP. Owner agrees to pay the brokerage commission
of XXXXXX X. DAY REALTY CORP. pursuant to separate agreement.
56. CONSTRUCTION: GOVERNING LAW
If any of the provisions of this Lease or the application thereof to any
person or circumstances, shall, to any extent, be invalid or unenforceable, the
remainder of this Lease or the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is held invalid
or unenforceable shall not be affected thereby, and every provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
This Lease shall be governed in all respects by the laws of the State of New
York.
57. ATTORNMENT
Tenant agrees that if a superior lessor or a mortgagee shall enter into and
become possessed of the real property of which the Demised Premises form a part,
or any part or parts of such real property either through possession or
foreclosure action or proceedings, or through the issuance and delivery of a new
lease of the premises covered by the Lease to the mortgagee, then, if this Lease
is in full force and effect at such time, Tenant shall attorn to the superior
lessor or the mortgagee, as its owner, if such superior lessor or such mortgagee
requests Tenant to do so. In such event, such lessor or mortgagee shall not be
liable to Tenant for any defaults theretofore committed by Owner, and no such
default shall give rise to any rights or offset or deduction against the rents
payable under this Lease. If any superior lessor or any mortgagee to which
Tenant agrees to attorn, as aforesaid, reasonably requests a further instrument
expressing such attornment, Tenant agrees to execute the same promptly.
58. TENANT'S CERTIFICATE
A. At any time and from time to time upon at least ten (10) days' prior
written notice by the Owner to the Tenant, the Tenant shall without charge
execute, acknowledge and deliver to the Owner a statement in writing, in
recordable form, addressed to such party as the Owner may designate prepared by
the Owner or in form satisfactory to the Owner certifying any of the following
information as may be requested (a) that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), (b) whether the
term of the Lease has commenced and the rent and additional rent have become
payable hereunder and, if so, the dates to which they have been paid, (c)
whether or not, to the best knowledge of the Tenant, the Owner is in default in
the performance of any of the terms of this Lease and, if so, specifying each
such default of which the Tenant may have knowledge, (d) whether the Tenant has
accepted possession of the Demised Premises, (e) whether the Tenant has made any
uncollected claims against the Owner under this Lease and, if so, the nature
thereof and the dollar amount, if any, of such claims, (f) whether there exist
any offsets or defenses against enforcement of any of the terms of this Lease
upon the part of the Tenant to be performed and, if so, specifying the same and
(g) such further information with respect to the Lease or the Demised Premises
as the Owner may reasonably
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request, it being intended that any such statement delivered pursuant hereto may
be relied upon by any prospective purchaser of the Building or any part thereof
or of the interest of the Owner in any part thereof, by any mortgagee or
prospective mortgagee thereof, by any lessor or prospective lessor thereof, by
any lessee or any prospective lessee thereof or by any prospective assignee of
any mortgage thereof. On Tenant's request, Owner agrees to furnish a similar
certificate.
59. TENANT'S REMEDIES
With respect to any provision of this Lease whereby Owner's consent or
approval is required or as to any other matter where Owner's consent is
requested, Tenant in no event shall be entitled to make nor shall Tenant make,
any claim (and Tenant hereby waives any such claim) for money damages; nor shall
Tenant claim any money damages by way of set off, counterclaim or defense, based
upon any claim or assertion by Tenant that Owner has unreasonably withheld or
unreasonably delayed any consent or approval, but Tenant's sole remedy shall be
an action or proceeding in equity to enforce any such provision or for specific
performance, injunction or declaratory judgment. Tenant will not seek to
consolidate any claim or counterclaim in any summary proceeding brought by Owner
for possession of the premises. In the case of a claim by Tenant that Owner
unreasonably withheld or delayed consent to a request to perform any alterations
or approve plans and specifications therefor or for any sublease or assignment,
Owner and Tenant hereby agree that the following provisions shall apply: upon
the written request of Tenant, the dispute either (i) shall be submitted to the
American Arbitration Association (the "Association") for disposition pursuant to
the "Expedited Procedures" of the Association, if available, or (ii) shall be
submitted to the president of the Real Estate Board of New York, Inc. who shall
appoint a single arbitrator to decide the dispute; in the event said president
refuses to do so, the dispute shall be resolved in accordance with clause (i).
If the President of the Real Estate Board agrees to appoint an arbitrator, he
shall appoint the arbitrator within three days and the arbitrator will hold a
hearing and decide the dispute within seven days of his appointment. The
decision of the arbitrator shall be final, and all actions necessary to
implement the decision of the arbitrator shall be undertaken as soon as
possible, but in no event later than ten (10) business days after the rendering
of such decision. Judgment upon the decision or any award rendered may be
entered in any court having jurisdiction thereof. All fees payable to the
Association or the Real Estate board or the arbitrator for services rendered in
connection with the resolution of the dispute shall be paid for by the party
suffering the adverse decision of the Association. For purposes of this
Article, the phrase "Expedited Procedures of the Association" shall mean those
procedures set forth in paragraphs 53 through 58 of that certain booklet
published by the Association and titled "Commercial Arbitration Rules," as
amended and in effect March 1, 1986.
61. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not, by operation of law or otherwise, assign, mortgage or
encumber this Lease, nor sublet all or any part of the Demised Premises or
permit the Demised Premises or any part thereof to be used by others, without
Owner's prior written consent in each instance. The consent by Owner to any
assignment or subletting in no way shall be construed to relieve
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Tenant from obtaining Owner's express written consent to any other or further
assignment or subletting.
(b) If Tenant requests Owner's consent to the assignment of this Lease or
the subletting of all of the Demised Premises, or one full floor thereof it
shall submit in writing to Owner, at the time it requests such consent the
following material relating to the proposed assignee or subtenant:
(i) the name and address;
(ii) the terms and conditions of the proposed assignment or
subletting;
(iii) the nature and character of the business to be conducted in the
Demised Premises;
(iv) financial statement for the preceding two (2) years if it has
been a business for that period;
(v) banking, financial and other credit information reasonably
sufficient to enable owner to determine the proposed assignee's
or subtenant's financial responsibility; and
(vi) such other business or financial information reasonably requested
by Owner.
(c) Owner shall have the following options, exercisable by written notice
to Tenant within thirty (30) business days after Tenant's aforesaid request for
Owner's consent and the furnishing of all requested information:
(i) Owner may require Tenant to execute an assignment or sublease to
Owner or to anyone designated by Owner of the same space on the
same terms as the proposed assignment or sublease without payment
of any premium therefor; in the event of such assignment, Tenant
shall be released from any obligation under this Lease accruing
after the effective date of such an assignment; in the event of a
sublease, Tenant shall not be required to pay to Owner any rent
or additional rent required to be paid by subtenant and not
received by Tenant from subtenant;
(ii) Owner may elect to terminate Tenant's Lease on the effective date
of the proposed assignment or sublease, and Owner shall execute
and deliver an instrument releasing and discharging the Tenant
from all obligations under this Lease accruing after the
effective date of such proposed assignment or sublease, and
Tenant shall vacate and surrender possession of the entire
Demised Premises in accordance with the Lease on or before said
effective
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date. In the event Tenant proposes to sublet only one floor of
the demised premises and Owner exercises either of the options
set forth in this paragraph, Tenant agrees prior to the effective
date of such sublease or the termination of this Lease with
respect to such floor, to remove any staircase Tenant has
previously installed between the 11th and 12th Floors and Tenant
will slab over the opening.
(d) If the Owner shall not exercise either of its foregoing options in
subparagraph (c) hereinabove within the time set forth above, its consent to the
proposed assignment or subletting of all of the Demised Premises shall not be
unreasonably withheld, provided, however, that it may withhold consent therein
if in the reasonable exercise of its judgment it determines that:
1. The proposed use of the Demised Premises is not appropriate for
the Building or in keeping with the character of the existing
tenancies or permitted by the Tenant's Lease.
2. The nature of the occupancy of the proposed assignee or subtenant
is not in accordance with the use provision of the Lease or will
cause excessive density of employees or traffic or make excessive
demands on the Building's services or facilities or be an
assignment or sublease to a school or employment or placement
agency.
3. The Tenant proposed to assign or sublet to one who at the time is
a Tenant in possession of premises in the Building of which the
Demised Premises are a part.
4. Such proposed assignee or Subtenant would lower the value on the
dignity of the Building or adversely affect the interest of
Owner.
5. Such proposed assignee or Subtenant would lower the value of the
dignity of the Building or adversely affect the interest of
Owner.
6. The sublet is not for either one full floor of the Demised
Premises or for the entire Demised Premises.
(e) If Owner shall not exercise an option set forth in subparagraph (c)
above within the time limit provided therefor and if Owner shall not have
withheld its consent pursuant to subparagraph (d) above, its consent to the
proposed assignment or subletting shall not be withheld provided, however, that
each of the following conditions first are complied with:
(i) Tenant then shall not be in default under this Lease;
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(ii) The assignee shall execute an agreement, in form reasonably
satisfactory to the Owner, whereby such proposed assignee assumes
performance of Tenant's obligations under this Lease and shall
become jointly and severally liable with the Tenant for the
performance thereof. The Subletting Agreement shall provide that
it is expressly subject to the terms and provisions of the Lease.
(iii) A duplicate original of the instrument of assignment and
assumption agreement or sublease duly executed by the appropriate
party, shall be delivered to the Owner before the assignee or
subtenant shall be let into possession of the Demised Premises.
(iv) Tenant shall pay any expense, including, but not limited,
attorneys' fees and fees for financial investigation incurred in
connection with the review and/or preparation and/or execution of
any documents submitted to Owner relating to the proposed
assignment or subletting including preparation of the consent.
This provision shall not apply if Owner elects to terminate the
Lease pursuant to subparagraph (c) herein.
(f) If the Owner shall give its consent to any assignment of this Lease or
to any sublease, Tenant, in consideration therefor, shall pay to Owner, as
additional rent:
(i) In the case of an assignment, an amount equal to all sums and
other considerations paid to Tenant by the assignee for or by
reason of such assignment (including, but not limited to, sums
paid for the sale of Tenant's fixtures, leasehold improvements,
equipment, furniture, furnishings or other personal property,
less, in the case of a sale thereof, the then net undepreciated
cost thereof determined on the basis of Tenant's Federal income
tax returns); and
(ii) In the case of a sublease, any rents, additional charges or other
consideration payable under the sublease and related agreements
to Tenant by the subtenant which is in excess of the fixed annual
rent and additional rent accruing during the term of the sublease
pursuant to the terms of this Lease (including, but not limited
to, sums paid for the sale or rental of Tenant's fixtures,
leasehold improvements, equipment, furniture or other personal
property, less, in the case of the sale thereof, the then
undepreciated cost thereof determined on the basis of Tenant's
Federal income tax returns).
The sums payable under this subparagraph (f) shall be paid by Tenant to Owner as
and when paid by the assignee or subtenant to Tenant.
(g) Each of the foregoing provisions and conditions shall apply to each and
every further assignment or subletting. An assignment of Lease or a subletting
as above provided shall
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not discharge or release from liability under the Lease the Tenant or any other
person, firm or corporation which previously shall have assumed Tenant's
obligations hereunder, such liability to remain and continue for the balance of
the term and any option to renew contained in the Lease with the same force and
effect as though no assignment had been effected.
(h) In the event that Owner exercised either of its options under
subparagraph (c) above, Owner shall have the absolute right to, and in no way
shall be liable to Tenant if it shall, Lease or further sublease the Demised
Premises to Tenant's prospective assignee or subtenant, as the case may be.
(i) If Owner does not exercise its option and also withholds its consent to
the proposed assignment or subletting and it is established by a court or body
having final jurisdiction thereover that Owner has been unreasonable, the only
effect of such finding shall be that Owner shall be deemed to have given its
consent; but Owner shall not be liable to Tenant in any respect for money or
compensatory damages by reason of withholding its consent.
(j) In the event that Tenant or any assignee or sublessee desires to assign
or sublet, it hereby designates the managing Agent as Tenant's sole and
exclusive Agent to effect such assignment or subletting and agrees to pay said
managing Agent upon the consent to assignment or sublease a commission computed
in accordance with the commission rates then in effect. Tenant acknowledges
that it is aware that the managing Agent represents the Owner and may also act
with respect to other competing space in the building and Tenant waives any
right to make claim for conflict of interest or for other damages. The exclusive
set forth in this Article 61(k) shall continue for 30 days and if within 90 days
after the expiration of the aforesaid 30 day period there is an assignment or
sublease to a party introduced by the managing Agent within the exclusive 30 day
period, then the managing Agent shall be entitled to a commission in accordance
with its usual rates. In the event that Tenant assigns or subleases without
advertising (except in trade and professional journals) and without utilizing
the services of a broker, finder or consultant, then the provisions of this
Article 61(k) shall not apply.
(k) No action or consent by Owner to listing of names on the Building
directory nor acceptance of rent from any party other than Tenant shall be
deemed a consent to any assignment or sublease of the Demised Premises nor a
waiver of any of the provisions hereof.
(l) Anything herein to the contrary notwithstanding, conversion of Tenant
or any successor tenant to a limited liability partnership or company during the
term of this Lease constitutes an assignment of the Lease which required the
Owner's consent in its sole discretion.
(o) Provided that Tenant shall not then be in default under this Lease,
Tenant may without Owner's consent and without complying with the other
provisions of this Article sublet all or any part of the demised premises
(without further demising the demised premises) or assign this Lease to an
affiliate of Tenant or in connection with a merger or consolidation of Tenant
provided further that Tenant shall give Owner prior notice thereof, shall
furnish Owner with a copy of any instrument of subletting, assignment, merger or
consolidation and in the event of an assignment that assignee shall assume the
obligations of Tenant under this Lease. For the
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purposes of this provision, an affiliate of Tenant shall be deemed to be an
entity controlling, controlled by or under common control with Tenant. A merger
shall be deemed to include the sale of all or substantially all the assets or
stock of Tenant.
62. END OF TERM
A. Tenant hereby agrees to indemnify and save Owner harmless against all
costs, expenses, claims, losses or liability resulting from delay by Tenant in
surrendering the Demised Premises upon the expiration or earlier termination of
this Lease, (Tenant's Holdover) including without limitation (i) any payment or
rent concession which Landlord may be required to make to any tenant obtained by
Landlord for all or any part of the Premises in order to induce such tenant not
to terminate its lease by reason of the holding-over by Tenant and (ii) the loss
of the benefit of the bargain if any such tenant shall terminate its lease by
reason of the holding-over Tenant and (iii) any claims made by any succeeding
tenant founded on such delay. Such indemnity shall survive the expiration or
earlier termination of this Lease.
B. Tenant agrees that losses to Owner resulting from Tenant's Holdover
will be very substantial, exceed the amount of Fixed Annual Base Rent as
adjusted and additional rent payable hereunder and be difficult of accurate
measurement. Therefore, if Tenant shall fail to vacate and surrender the
Demised Premises as required hereunder, it shall be deemed a holdover Tenant on
a month-to-month basis at a fixed monthly rent equal to one and one half (1 1/2)
times the monthly rate of all Fixed Annual Base Rent as adjusted and additional
rent payable for the last month of the term hereof. The collection of the
aforesaid rent shall not act to limit Owner's rights to institute summary
proceedings to obtain possession or pursuant to this Article 62 or in the Lease
or at law, but any such rent collected will be non-refundable and shall be
applied against any such damages.
63. EXHIBIT
Tenant acknowledges and agrees that the diagram of the Demised Premises
annexed hereto as Exhibit A has not been drawn to scale, is an approximation of
the actual size and location of the space involved and is not meant to be a
representation of the actual size and location of the space involved. Tenant
has had the opportunity to and has made such inspection of the leased premises
as Tenant deems necessary.
64. HEAD NOTES
The Article headings herein are only for convenience and are in no way to
be construed as a part of the agreement or as a limitation on the scope of any
provision thereof.
65. RULE OF CONSTRUCTION
This Lease and the other documents incidental hereto or any provision
therein shall be construed without regard to any presumption or other rule
requiring construction against the party causing such instrument to be drafted.
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66. ELECTRIC CURRENT
There is a meter serving the premises for the measuring of direct electric
service. Tenant agrees at Tenant's cost and expense, to contract for the
furnishing of electricity directly from the utility company, and Tenant shall
pay all electrical and other charges billed by the utility company in connection
with the furnishing of electricity to the Demised Premises.
Tenant shall make no alternations or additions to the electric equipment,
and/or appliances without first obtaining written consent from the Owner in each
instance. This provision is to prevent the Tenant from possible overloading of
the Building's electrical distribution facilities. The Owner, his Agent or
consultant, is given the right to make surveys from time to time in the Tenant's
premises covering the electrical equipment and fixtures and use of current.
provided in the exercise of such right, Owner will use good faith, reasonable
efforts to minimize interference with Tenant's business. Owner shall not in any
way be liable or responsible to Tenant for any loss or damage or expense which
Tenant may sustain or incur if either the quality of character of electric
service is changed or is no longer available or suitable for Tenant's
requirements. Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing leaders to the Building, or
the risers or wiring installation. Owner shall install at Tenant's expense any
riser or risers to supply Tenant's electrical requirements, upon written request
of the Tenant if, in Owner's sole judgment, the same are necessary and will not
cause or create dangerous or hazardous condition or entail excessive or
unreasonable alternations, repairs or expense or interfere with or disturb other
tenants or occupants. In addition to the installation of such riser or risers
Owner will also, at the sole cost and expense of the Tenant, install all other
equipment proper and necessary in connection therewith subject to the aforesaid
terms and conditions.
68. TENANT'S WORK
Owner acknowledges that Tenant intends to build out the demised premises in
order to facilitate Tenant's use thereof. Tenant shall prepare and submit to
Owner for its approval plans and specifications for the build-out of the demised
premises ("Tenant's Work") and Owner shall have 10 days after receipt of such
plans and specifications in order to approve the same; provided in the event
Owner shall not object to such plans and specifications within such 10-day
period, then Owner's approval of such plans shall be deemed given if Owner does
not object for five days after Tenant gives Owner a second notice referring to
this Article. Owner will consent to the installation by Tenant of a staircase
between the 11th and 12th Floors. Tenant shall enter into a contract with a
general contractor for Tenant's Work and Tenant agrees to submit the name of
such contractor to Owner for its approval, which shall be deemed given if no
objection is made within 10 days of receipt of request for approval of the
contractor. Owner agrees to pay for the cost of Tenant's Work in an amount not
to exceed $249,900. Owner shall make such payment on delivery to Owner of a
completed requisition for payment signed and certified as true by Tenant and
Tenant's architect, stating the amount requested for payment, which shall
include an itemized break down of the costs and expenses incurred by Tenant,
stating the percentage of
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Tenant's Work that has been completed and indicating a minimum of 10% retainage
of payments by Tenant to its contractors (it being understood that any request
for payment hereunder prior to final payment on completion of Tenant's Work
shall not be on account of such required retainage), accompanied by copies of
invoices, bills or receipts (or other evidence reasonably satisfactory to Owner)
for the costs with respect to which such request for payment is being made.
Alternatively, Owner will reimburse Tenant for such costs on presentation by
Tenant to Owner of paid invoices for Tenant's Work. At the time of final
payment, Owner shall receive executed lien waivers from all contractors and
subcontractors respecting work performed.
69. RENT COMMENCEMENT
Provided that Tenant is not then in default under this Lease Tenant shall
not be required to pay the annual rental set forth on page 1 of this Lease for
the period beginning on the Commencement Date and ending October 14, 1998.
Commencing on October 15, 1998, Tenant shall pay the annual rental set forth on
page 1 of this Lease.
70. Owner grants Tenant the license to place a satellite dish on the roof of
the building at such place on the roof as Owner may designate provided that
Tenant shall obey all laws, rules and regulations relating thereto, pay any
license and permit fees applicable thereto and maintain the same in good order
and condition and remove the same when this license shall be revoked or shall
terminate and repair any damage in connection with such removal. Owner agrees
not to revoke said license during the term of this Lease. Tenant agrees the use
of such dish shall not cause any interference with other satellite dishes or
electronic equipment on the roof of the building or in or near the building.
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