EXHIBIT 10.2
_____________________________________________________________________________
XXXX BUILDING ASSOCIATES
To
FAMOUS FIXIN 'S, INC.
_____________________________________________________________________________
_____________________________________________________________________________
LEASE
_____________________________________________________________________________
_____________________________________________________________________________
Date October 1, 1999
Space 1113
From 12/1/99
To 4/30/05
Annual Rent $ $38,889.00 12/1/99-8/31/01
$42,912.00 9/1/01-6/30/03
$46,935.00 7/1/03-4/30/05
Monthly Rent $ $3240.75 12/1/99-8/31/01
$3675.00 9/1/01-6/30/03
$3911.25 7/1/03-4/30/05
_____________________________________________________________________________
_____________________________________________________________________________
HELMSLEY-SPEAR, INC.
Real Estate
Lincoln Building
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Phone (000) 000-0000
LEASE made as of the 1st day of October, 1999, between XXXX BUILDING
ASSOCIATES HAVING AN OFFICE C/O HEMLSLEY_SPEAR, INC. AT 000 XXXX 00XX XXXXXX
XXX XXXX, XX 00000 hereinafter referred to as "Landlord" or "Lessor", and
FAMOUS FIXIN'S, INC. hereinafter referred to as "Tenant" or "Lessee".
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord 2501 (said space is hereinafter called the "premises") in
the building known as 000 Xxxx 00xx Xxxxxx ("the building") in the County of
New York, City of New York, for a term of 5 Years 5 Months to commence on
the 1st day of December 1999, and to expire on the 30th day of April, 2001, or
until such term shall sooner end as in Article 12 and elsewhere herein
provided, both dates inclusive, at a fixed annual rental (subject to Articles
23 and 41) at the annual rate of
THIRTY EIGHT THOUSAND EIGHT HUNDRED EIGHTY NINE DOLLARS AND NO CENTS
12/1/99-8/31/01
FORTY TWO THOUSAND NINE HUNDRED TWELVE DOLLARS AND NO CENTS 9/1/01-6/30/03
FORTY SIX THOUSAND NINE HUNDRED THIRTY FIVE DOLLARS AND NO CENTS 7/1/03-4/30/05
payable in equal monthly installments in advance on the first day of each
month, except that the first installment of rent due under this lease shall
be paid by Tenant upon its execution of this lease, unless this lease be a
renewal.
Landlord and Tenant covenant and agree:
PURPOSE.
1. Tenant shall use and occupy the premises only for offices relating
to Tenant's business, and for no other purpose. General & Executive Offices
RENT AND ADDITIONAL RENT.
2. Tenant agrees to pay rent as herein provided at the office of
Landlord or such other place as Landlord may designate, payable in United
States legal tender, by cash, or by good and sufficient check drawn on a New
York City Clearing House Bank, and without any set off or deduction
whatsoever. Any sum other than fixed rent payable hereunder shall be deemed
additional rent and due on demand.
ASSIGNMENT.
3. Neither Tenant nor Tenant's legal representatives or successors in
interest by operation of law or otherwise, shall assign, mortgage or
otherwise encumber this lease, or sublet or permit all or part of the
premises to be used by others, without the (prior written consent of Landlord
in each instance. The transfer of a majority of the issued and outstanding
capital stock of any corporate tenant or sublessee of this lease or a
majority of the total interest in any partnership tenant or sublessee,
however accomplished, and whether in a single transaction or in a series of
related or unrelated transactions, and the conversion of a tenant or
sublessee entity to either a limited liability company or a limited liability
partnership shall be deemed an assignment of this lease or of such sublease.
The merger or consolidation of a corporate tenant or sublessee where the net
worth of the resulting corporation is less than the net worth of the tenant
or sublessee immediately prior to such merger or consolidation shall be
deemed an assignment of this lease or of such sublease. If without Landlord's
written consent this lease is assigned, or the premises are sublet or
occupied by anyone other than Tenant, Landlord may accept the rent from such
assignee, subtenant or occupant, and apply the net amount thereof to the rent
herein reserved, but no such assignment, subletting, occupancy or acceptance
of rent shall be deemed a waiver of this covenant. Consent by Landlord to an
assignment or subletting shall not relieve Tenant from the obligation to
obtain Landlord's written consent to any further assignment or subletting. In
no event shall any permitted sublessee assign or encumber its sublease or
further sublet all or any portion of its sublet space, or otherwise suffer or
permit the sublet space or any part thereof to be used or occupied by others,
without Landlord's prior written consent in each instance. A modification,
amendment or extension of a sublease shall be deemed a sublease.
DEFAULT.
4. Landlord may terminate this lease on three (3) days' notice: (a) if
rent or additional rent is not paid within three (3) days after written
notice from Landlord; or (b) if Tenant shall have failed to cure a default in
the performance of any covenant of this lease (except the payment of rent),
or any rule or regulation hereinafter set forth, within five (5) days after
written notice thereof from Landlord, or if default cannot be completely
cured in such time, if Tenant shall rot promptly proceed to cure such default
within said five (5) days, or shall not complete the curing of such default
with due diligence; or (c) when and to the extent permitted by law, if a
petition in bankruptcy shall be filed by or against Tenant or if Tenant shall
make a general assignment for the benefit of creditors, or receive the
benefit of any insolvency or reorganization act; or (d) if a receiver or
trustee is appointed for any portion of Tenant's; property and such
appointment is not vacated within twenty (20) days; or (e) if an execution or
attachment shall be issued under which the premises shall be taken or
occupied or attempted to be taken or occupied by an one other than Tenant; or
(f) if the premises become and remain vacantor deserted for a period often
(10) days; or (g) if Tenant shall default beyond any grace period under any
other lease between Tenant and Landlord; or (h) if Tenant shall fail to move
into or take possession of the premises within fifteen (15) days after
commencement of the term of this lease.
At the expiration of the three (3) day notice period, this lease and
any rights of renewal or extension thereof shall terminate as completely as
if that were the date originally fixed for the expiration of the term of this
lease, but Tenant shall remain liable as hereinafter provided.
RELETTING, ETC.
5. If Landlord shall re-enter the premises on the default of Tenant, by
summary proceedings or otherwise: (a) Landlord may re-let the premises or any
part thereof as Tenant's agent, in the name of Landlord, or otherwise, for a
term shorter or longer than the balance of the term of this lease, and may
grant concessions or free rent. (b) Tenant shall pay Landlord any deficiency
between the rent hereby reserved and the net amount of any rents collected by
Landlord for the remaining term of this lease, through such reletting. Such
deficiency shall become due and payable monthly, as it is determined.
Landlord shall have no obligation to re-let the premises, and its failure or
refusal to do so, or failure to collect rent on re-letting, shall not affect
Tenant's liability hereunder. In computing the net amount of rents collected
through such re-letting, Landlord may deduct all expenses incurred in
obtaining possession or re-letting the premises, including legal expenses and
fees, brokerage fees, the cost of restoring the premises to good order, and
the cost of all alterations and decorations deemed necessary by Landlord to
effect re-letting. In no event shall Tenant be entitled to a credit or
repayment for rerental income which exceeds the sums payable by Tenant
hereunder or which covers a period after the original term of this lease. (c)
Tenant hereby expressly waives any right of redemption granted by any present
or future law. "Re-enter" and "re-entry" as used in this lease are not
restricted to their technical legal meaning. In the event of a breach or
threatened breach of any of the covenants or provisions hereof Landlord shall
have the right of injunction. Mention herein of any particular remedy shall
not preclude Landlord from any other available remedy. (d) Landlord shall
recover as liquidated damages, in addition to accrued rent and other charges,
if Landlord's re-entry is the result of Tenant's bankruptcy, insolvency, or
reorganization, the full rental for the maximum period allowed by any act
relating to bankruptcy, insolvency or reorganization.
If Landlord re-enters the premises for any cause, or if Tenant abandons
or vacates the premises, and after the expiration of the term of this lease,
any property left in the premises by Tenant shall be deemed to have been
abandoned by Tenant, and Landlord shall have the right to retain or dispose
of such property in any manner without any obligation to account therefor to
Tenant. If Tenant shall at any time default hereunder, and if Landlord shall
institute an action or summary proceedings against Tenant based upon such
default, then Tenant will reimburse Landlord for the legal expenses and fees
thereby incurred by Landlord.
LANDLORD MAY CURE DEFAULTS.
6. If Tenant shall default in performing any covenant or condition of
this lease. Landlord may perform the same for the account of Tenant, and if
Landlord, in connection therewith, or in connection with any default by
Tenant, makes any expenditures or incurs any obligations for the payment of
money, including but not limited to attorney's fees, such sums so paid or
obligations incurred shall be deemed to be additional rent hereunder, and
shall be paid by Tenant to Landlord within five (5) days of rendition of any
xxxx or statement therefor, and if Tenant's lease term shall have expired at
the time of the making of such expenditures or incurring of such obligations,
such sums shall be recoverable by Landlord as damages.
ALTERATIONS.
7. Tenant shall make no decoration, alteration, addition or improvement
in the premises, without the prior written consent of Landlord, and then only
by contractors or mechanics and in such manner and with such materials as
shall be approved by Landlord. All alterations, additions or improvements to
the premises, including window and central air conditioning equipment and
duct work, except movable office furniture and equipment installed at the
expense of Tenant, shall, unless Landlord elects otherwise in writing, become
the property of Landlord, and shall be surrendered with the premises at the
expiration or sooner termination of the term of this lease. Any such
alterations, additions and improvements which Landlord shall designate, shall
be removed by Tenant and any damage repaired, at Tenant's expense, prior to
the expiration of the term of this lease.
LIENS.
8. Prior to commencement of its work in the demised premises, Tenant
shall obtain and deliver to Landlord a written letter of authorization, in
form satisfactory to Landlord's counsel, signed by architects, engineers and
designers to become involved in such work, which shall confirm that any of
their drawings or plans are to be removed from any filing with governmental
authorities, on request of Landlord, in the event that said architect
engineer, or designer thereafter no longer is providing services with respect
to the demised premises. With respect to contractors, subcontractors
materialmen and laborers, and architects, engineers and designers, for ali
work or materials to be furnished to Tenant at the premises, Tenant agrees to
obtain and deliver to Landlord written and unconditional waiver of mechanics
liens upon the premises or the building, after payments to the contractors,
etc., subject to any then applicable provisions of the Lien law.
Notwithstanding the foregoing, Tenant at its expense shall cause any lien
filed against the premises or the building, for work or materials claimed to
have been furnished to Tenant, to be discharged of record within twenty (20)
days after notice thereof.
REPAIRS.
9. Tenant shall take good care of the premises and the fixtures and
appurtenances therein, and shall make all repairs necessary to keep them in
good working order and condition, including structural repairs when those are
necessitated by the act, omission or negligence of Tenant or its agents,
employees or invitees. During the term of this lease, Tenant may have the use
of any air-conditioning equipment located in the premises, and Tenant, at its
own cost and expense, shall maintain and repair such equipment and shall
reimburse Landlord, in accordance with Article 41 of this lease, for
electricity consumed by the equipment. The exterior walls of the building,
the windows and the portions of all window xxxxx outside same and areas above
any hung ceiling are not part of the premises demised by this lease, and
Landlord hereby reserves all rights to such parts of the building.
DESTRUCTION.
10. If the premises shall be partially damaged by fire or other
casualty, the damage shall be repaired at the expense of Landlord, but
without prejudice to the rights of subrogation, if any, of Landlord's
insurer. Landlord shall not be required to repair or restore any of Tenant's
property or any alteration or leasehold improvement made by or for Tenant at
Tenant's expense. The rent shall xxxxx in proportion to the portion of the
premises not usable by Tenant. Landlord shall not be liable to Tenant for any
delay in restoring the premises, Tenant's sole remedy being the right to an
abatement of rent, as above provided. If the premises are rendered wholly
untenantable by fire or other casualty and if Landlord shall decide not to
restore the premises, or if the building shall be so damaged that Landlord
shall decide to demolish it or to rebuild it (whether or not the premises
have been damaged), Landlord may within ninety (90) days after such fire or
other cause give written notice to Tenant of its election that the term of
this lease shall automatically expire no less than ten (10) days after such
notice is given. Notwithstanding the foregoing, 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, Landlord and Tenant each hereby releases and waives all
right of recovery against the other or any one claiming through or under each
of them by way of subrogation or otherwise. 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
and also, provided that such a policy can be obtained without additional
premiums. Tenant hereby expressly waives the provisions of Section 227 of the
Real Property law and agrees that the foregoing provisions of this Article
shall govern and control in lieu thereof.
END OF TERM.
11. Tenant shall surrender the premises to Landlord at the expiration
or sooner termination of this lease in good order and condition, except for
reasonable wear and tear and damage by fire or other casualty, and Tenant
shall remove all of its property. Tenant agrees it shall indemnify and save
Landlord harmless against all costs, claims, loss or liability resulting from
delay by Tenant in so surrendering the premises, including, without
limitation, any claims made by any succeeding tenant founded on such delay.
Additionally, the parties recognize and agree that other damage to Landlord
resulting from any failure by Tenant timely to surrender the premises will be
substantial, will exceed the amount of monthly rent theretofore payable
hereunder, and will be impossible of accurate measurement. Tenant therefore
agrees that if possession of the premises is not surrendered to Landlord
within one (1) day after the date of the expiration or sooner termination of
the term of this lease, then Tenant will pay Landlord as liquidated damages
for each month and for each portion of any month during which Tenant holds
over in the premises after expiration or termination of the term of this
lease, a sum equal to three times the average rent and additional rent which
was payable per month under this lease during the last six months of the term
thereof. The aforesaid obligations shall survive the expiration or sooner
termination of the term of this lease. At any time during the term of this
lease, Landlord may exhibit the premises to prospective purchasers or
mortgagees of Landlord's interest therein. During the last year of the term
of this lease, Landlord may exhibit the premises to prospective tenants.
SUBORDINATION AND ESTOPPEL, ETC.
12. Tenant has been informed and understands that Landlord is the
Tenant under a lease of the land and entire building of which the premises
form a part (hereinafter called the "Master Lease"). This lease is and shall
be subject and subordinate to the Master Lease and all other ground and
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which the premises form a part, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
This Article shall be self-operative and no further instrument of
subordination shall be necessary. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Landlord may request.
Tenant hereby appoints Landlord as tenant's irrevocable attorney-in-fact to
execute any document of subordination on behalf of Tenant. In the event that
the Master Lease or any other ground or underlying lease is terminated or any
mortgage foreclosed, this lease shall not terminate or be terminable by
Tenant (except as hereinafter provided as to Master Lease expiration of term)
unless Tenant was specifically named in any termination or foreclosure
judgment or final order. In the event that the Master Lease or any other
ground or underlying lease is terminated as aforesaid, or expires (as
hereinafter provided), or if the interests of Landlord under this lease are
transferred by reason of or assigned in lieu of foreclosure or other
proceedings for enforcement of any mortgage, or if the holder of any mortgage
acquires a lease in substitution therefor, then tenant will, at the option to
be exercised in writing by the landlord under the Master Lease or such
purchaser, assignee or lessee, as the case may be, (i) attom to it and will
perform for its benefit all the terms, covenants and conditions of this lease
on the Tenant's part to be performed with the same force and effect as if
said landlord or such purchaser, assignee or lessee, were the landlord
originally named in this lease, or (ii) enter into a new lease with said
lessor or such purchaser, assignee or lessee, as landlord, for the remaining
term of this lease and otherwise on the same terms, conditions and rentals as
herein provided. If the current term of the Master Lease shall expire prior
to the date set forth herein for the expiration of this lease, then, unless
Landlord, at its sole option, shall have elected to extend or renew the term
of the Master Lease, or unless the lessor under the Master Lease elects that
the Tenant attorn or enter into a new lease as aforesaid, the term of this
lease shall expire on the date of expiration of the Master Lease,
notwithstanding the later expiration date hereinabove set forth. If the
Master Lease is renewed, then the term of this lease shall expire as
hereinabove set forth. From time to time, Tenant, on at least ten (10) days'
prior written request by Landlord will deliver to Landlord a statement in
writing certifying that this lease is unmodified and in full force and effect
(or if there shall have been modifications, that the same is in full force
and effect as modified and stating the modification) and the dates to which
the rent and other charges have been paid and stating whether or not the
Landlord is in default in performance of any covenant, agreement, or condition
contained in this lease and, if so, specifying each such default of
which Tenant may have knowledge.
CONDEMNATION.
13. If the whole or any substantial part of the premises shall be
condemned by eminent domain or acquired by private purchase in lieu thereof
for any public or quasi-public purpose, this lease shall terminate on the
date of the vesting of title through such proceeding or purchase, and Tenant
shall have no claim against Landlord for the value of any unexpired portion
of the term of this lease, nor shall Tenant be entitled to any part of the
condemnation award or private purchase price. If less than a substantial part
of the premises is condemned, this lease shall not terminate, but rent shall
xxxxx in proportion to the portion of the premises condemned.
REQUIREMENTS OF LAW.
14. (a) Tenant at its expense shall comply with all laws, orders and
regulations of any governmental authority having or asserting jurisdiction
over the premises, which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the premises or the use or occupancy
thereof including, without limitation, compliance in the premises with all
City, State and Federal laws, rules and regulations on the disabled or
handicapped, on fire safety and on hazardous materials. The foregoing shall
not require Tenant to do structural work.
(b) Tenant shall require every person engaged by him to clean any
window in the premises from the outside, to use the equipment and safety
devices required by Section 202 of the labor law and the rules of any
governmental authority having or asserting jurisdiction.
(c) Tenant at its expense shall comply with all requirements of the New
York Board of Fire Underwriters, or any other similar body affecting the
premises and shall not use the premises in a manner which shall increase the
rate of fire insurance of Landlord or of any other tenant, over that in
effect prior to this lease. If Tenant's use of the premises increases the
fire insurance rate, Tenant shall reimburse Landlord for all such increased
costs. That the premises are being used for the purpose set forth in Article
I hereof shall not relieve Tenant from the foregoing duties, obligations and
expenses.
CERTIFICATE OF OCCUPANCY.
15. Tenant will at no time use or occupy the premises in violation of
the certificate of occupancy issued for building. The statement in this
lease of the nature of the business to be conducted by Tenant shall not be
deemed to constitute a representation or guaranty by Landlord that such use
is lawful or permissible in the premises under the certificate of occupancy
for the building.
POSSESSION.
16. If Landlord shall be unable to give possession of the premises on
the commencement date of the term because of the retention of possession of
any occupant thereof alteration or construction work, or for any other reason
except as hereinafter provided, Landlord shall not be subject to any
liability for such failure. In such event, this lease shall stay in full
force and effect, without extension of its term. However, the rent hereunder
shall not commence until the premises are available for occupancy by Tenant.
If delay in possession is due to work, changes or decorations being made by
or for Tenant, or is otherwise caused by Tenant, there shall be no rent
abatement and the rent shall commence on the date specified in this lease. If
permission is given to Tenant to occupy the demised premises or other
premises prior to the date specified as the commencement of the term, such
occupancy shall be deemed to be pursuant to the terms of this lease, except
that the parties shall separately agree as to the obligation of Tenant to pay
rent for such occupancy. The provisions of this Article are intended to
constitute an "express provision to the contrary" within the meaning of
Section 223(a), New York Real Property Law.
QUIET ENJOYMENT.
17. Landlord covenants that if Tenant pays the rent and performs all of
Tenant's other obligations under this lease, Tenant may peaceably and quietly
enjoy the demised premises, subject to the terms, covenants and conditions of
this lease and to the ground leases, underlying leases and mortgages
hereinbefore mentioned.
RIGHT OF ENTRY.
18. Tenant shall permit Landlord to erect and maintain pipes and
conduits in and through the premises. Landlord or its agents shall have the
right to enter or pass through the premises at all times, by master key, by
reasonable force or otherwise, to examine the same, and to make such
repairs, alterations or additions as it may deem necessary or desirable to
the premises or the building, and to take all material into and upon the
premises that may be required therefor. Such entry and work shall not
constitute an eviction of Tenant in whole or in part, shall not be grounds
for any abatement of rent, and shall impose no liability on Landlord by
reason of inconvenience or injury to Tenant's business. Landlord shall have
the right at any time, without the same constituting an actual or
constructive eviction, and without incurring any liability to Tenant, to
change the arrangement and/or location of entrances or passageways. windows,
corridors, elevators, stairs, toilets, or other public parts of the building,
and to change the name or number by which the building is known.
VAULT SPACE.
19. Anything contained in any plan or blueprint to the contrary
notwithstanding, no vault or other space not within the building property
line is demised hereunder. Any use of such space by Tenant shall be deemed to
be pursuant to a license, revocable at will by Landlord, without diminution
of the rent payable hereunder. If Tenant shall use such vault space, any fees
taxes or charges made by any governmental authority for such space shall be
paid by Tenant.
INDEMNITY.
20. Tenant shall indemnify, defend and save Landlord harmless from and
against any liability or expense arising from the use or occupation of the
premises by Tenant, or anyone on the premises with Tenant's permission, or
from any breach of this lease.
LANDLORD'S LIABILITY.
21. This lease and the obligations of Tenant hereunder shall in no way
be affected because Landlord is unable to fulfill any of its obligations or
to supply any service, by reason of strike or other cause not within
Landlord's control. Landlord shall have the right, without incurring any
liability to Tenant, to stop any service because of accident or emergency, or
for repairs, alterations or improvements, necessary or desirable in the
judgment of Landlord, until such repairs, alterations or improvements shall
have been completed. Landlord shall not be liable to Tenant or anyone else,
for any loss or damage to person, property or business, unless due to the
negligence of Landlord nor shall Landlord be liable for any latent defect in
the premises or the building. Tenant, during the term of this lease, shall
carry public liability and property damage insurance, from a company
authorized to do business in New York, with limitations acceptable to
Landlord, which policy or policies shall name the Landlord and its designees
as additional insureds. Evidence of the policies, and of their timely
renewal, shall be delivered to Landlord. All such insurance shall contain an
agreement by the insurance company that the policy or policies will not be
cancelled or the coverage changed, without thirty (30) days' prior written
notice to the Landlord. Tenant agrees to look solely to Landlord's estate and
interest in the land and building, or the lease of the building or of the
land and building, and the demised premises, for the satisfaction of any
right or remedy of Tenant for the collection of a judgment (or other judicial
process) requiring the payment of money by Landlord, in the event of any
liability by Landlord, and no other property or assets of Landlord shall be
subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this lease, the
relationship of landlord and tenant hereunder, or Tenant's use and occupancy
of the demised premises or any other liability of Landlord to Tenant (except
for negligence).
CONDITION OF PREMISES.
22. Tenant acknowledges that Landlord has made no representation or
promise, except as herein expressly set forth. Tenant agrees to accept the
premises "as is", except for any work which Landlord ha expressly agreed in
writing to perform.
COST OF LIVING ADJUSTMENTS.
23. The fixed annual rent reserved in this lease and payable hereunder
shall be adjusted, as of the times and in the manner set forth in this
Article:
(a) Definitions: For the purposes of this Article, the following
definitions shall apply:
(i) The term "Base Year" shall mean the full calendar year 2000.
(ii) The term "Price Index" shall mean the "Consumer Price Index"
published by the Bureau of Labor Statistics of the U.S. Department of Labor,
All Items. New York, N.Y.--Northeastern, N.J., all urban consumers (presently
denominated "CPI-U"), or a successor or substitute index appropriately
adjusted.
(iii) the term "Price Index for the Base Year" shall mean the average
of the monthly All Items Price Indexes for each of the 12 months of the Base
Year.
(b) Effective as of each January and July subsequent to the Base Year,
there shall be made a cost of living adjustment of the fixed annual rental
rate payable hereunder. The July adjustment shall be based on the percentage
difference between the Price Index for the preceding month of June and the
Price Index for the Base Year. The January adjustment shall be based on such
percentage difference between the Price Index for the preceding month of
December and the Price Index for the Base Year.
(i) In the event the Price Index for June in any calendar year during
the term of this lease reflects an increase over the Price Index for the Base
Year, then the fixed annual rent herein provided to be paid as of the July
1st following such month of June (unchanged by any adjustments under this
Article) shall be multiplied by the percentage difference between the Price
Index for June and the Price Index for the Base Year, and the resulting sum
shall be added to such fixed annual rent, effective as of such July 1st. Said
adjusted fixed annual rent shall thereafter be payable hereunder, in equal
monthly installments, until it is readjusted pursuant to the terms of this
lease.
(ii) In the event the Price Index for December in any calendar year
during the term of this lease reflects an increase over the Price Index for
the Base Year, then the fixed annual rent herein provided to be paid as of
the January 1st following such month of December (unchanged by any
adjustments under this Article) shall be multiplied by the percentage
difference between the Price Index for December and the Price Index for the
Base Year, and the resulting sum shall be added to such fixed annual rent
effective as of such January 1st. Said adjusted fixed annual rent shall
thereafter be payable hereunder, in equal monthly installments, until it is
readjusted pursuant to the terms of this lease.
The following illustrates the intentions of the parties hereto as to
the computation of the aforementioned cost of living adjustment in the annual
rent payable hereunder
Assuming that said fixed annual rent is $10,000, that the Price
Index for the Base Year was 102.0 and that the Price Index for the
month of June in a calendar year following the Base Year was 105.0.
then the percentage increase thus reflected, i.e., 2.941% (3.0/102.0)
would be multiplied by $10,000, and said fixed annual rent would be
increased by $294.10 effective as of July 1st of said calendar year.
In the event that the Price Index ceases to use 1982-84=100 as the
basis of calculation, or if a substantial change is made in the terms or
number of items contained in the Price Index, then the Price Index shall be
adjusted to the figure that would have been arrived at had the manner of
computing the Price Index in effect at the date of this lease not been
altered. In the event such Price Index (or a successor or substitute index)
is not available, a reliable governmental or other non-partisan publication
evaluating the information theretofore used in determining the Price Index
shall be used.
(c) Landlord will cause statements of the cost of living adjustments
provided for in subdivision (b) to be prepared in reasonable detail and
delivered to Tenant.
(d) In no event shall the fixed annual rent originally provided to be
paid under this lease (exclusive of the adjustments under this Article) be
reduced by virtue of this Article.
(e) Any delay or failure of Landlord, beyond July or January of any
year, computing or billing for the rent adjustments hereinabove provided,
shall not constitute a waiver of or in any way impair the continuing
obligation of Tenant to pay such rent adjustments hereunder.
(f) Notwithstanding any expiration or termination of this lease prior
to the lease expiration date (except in the case of a cancellation by mutual
agreement) Tenant's obligation to pay rent as adjusted under this Article
shall continue and shall cover all periods up to the lease expiration date,
and shall survive any expiration or termination of this lease.
TAX ESCALATION.
24. Tenant shall pay to Landlord, as additional rent, tax escalation in
accordance with this Article:
(a) For purposes of this lease the rentable square foot area of the
presently demised premises shall be deemed to be 1341 square feet.
(b) Definitions: For the purpose of this Article, the following
definitions shall apply:
(i) The term "base tax year" as hereinafter set forth for the
determination of real estate tax escalation, shall mean the New York City
real estate tax year commencing July 1, 1999 and ending June 30, 2000.
(ii) The term "The Percentage", for purposes of computing tax
escalation, shall mean .253 percent (.253%). The Percentage has been computed
on the basis of a fraction, the numerator of which is the rentable square foot
area of the demised premises and the denominator of which is the total
rentable square foot area of the office and commercial space in the building
project. The parties acknowledge and agree that the total rentable square
foot area of the office and commercial space in the building project shall be
deemed to be 408,583 sq. ft.
(iii) The term "the building project" shall mean the aggregate
combined parcel of land on a portion of which are the improvements of which
the demised premises form a part, with all the improvements thereon, said
improvements being a part of the block and lot for tax purposes which are
applicable to the aforesaid land.
(iv) The term "comparative year, shall mean the twelve (12)
months following the base tax year, and each subsequent Period of twelve (12)
months (or such other Period of twelve (12) months occurring during the term
of this lease as hereafter may be duly adopted as the tax year for real
estate tax purposes by the City of New York).
(v) The term "real estate taxes" shall mean the total of all
taxes and special or other assessments levied, assessed or imposed at any
time by any governmental authority upon or against the building project, and
also any tax or assessment levied, assessed or imposed at any time by any
governmental authority in connection with the receipt of income or rents from
said building project to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes or assessments, or additions or
increases thereof, upon or against said building project. If, due to a future
change in the method of taxation or in the taxing authority, or for any other
reason, a franchise, income, transit, profit or other tax or governmental
imposition, however designated, shall be levied against landlord in
substitution in whole or in part for the real estate taxes, or in lieu of
additions to or increases of said real estate taxes, then such franchise,
income, transit, profit or other tax or governmental imposition shall be
deemed to be included within the definition of "real estate taxes" for the
purposes hereof. As to special assessments which are payable over a period of
time extending beyond the term of this lease, only a pro rata portion thereof
covering the portion of the term of this lease unexpired at the time of the
imposition of such assessment, shall be included in "real estate taxes". If
by law, any assessment may be paid in installments, then, for the purposes
hereof (a) such assessment shall be deemed to have been payable in the
maximum number of installments permitted by law and (b) there shall be
included in real estate taxes, for each comparative year in which such
installments may be paid, the installments of such assessment so becoming
payable during such comparative year, together with interest payable during
such comparative year.
(vi) Where more than one assessment is imposed by the City of New
York for any tax year, whether denominated an "actual assessment" or a
"transitional assessment" or otherwise, then the phrases herein "assessed
value" and "assessments" shall mean whichever of the actual, transitional or
other assessment is designated by the City of New York as the taxable
assessment for that tax year.
(vii) The phrase "real estate taxes payable during the base tax
year" shall mean that amount obtained by multiplying the assessed value of
the land and buildings of the building project for the base tax year by the
tax rate for the base tax year for each $100 of such assessed value.
(c) 1. In the event that the real estate taxes payable for any
comparative year shall exceed the amount of the real estate taxes payable
during the base tax year, tenant shall pay to landlord, as additional rent
for such comparative year, an amount equal to The Percentage of the excess.
Before or after the start of each comparative year, Landlord shall furnish to
Tenant a statement of the real estate taxes payable for such comparative
year, and a statement of the real estate taxes payable during the base tax
year. If the real estate taxes payable for such comparative year exceed the
real estate taxes payable during the base tax year, additional rent for such
comparative year, in an amount equal to The Percentage of the excess, shall
be due from Tenant to Landlord, and such additional rent shall be payable by
Tenant to Landlord within ten (10) days after receipt of the aforesaid
statement. 1be benefit of any discount for any earlier payment or prepayment
of real estate taxes shall accrue solely to the benefit of Landlord, and such
discount shall not be subtracted from the real estate taxes payable for any
comparative year.
Additionally, Tenant shall pay to Landlord, on demand, a sum equal to
The Percentage of any business improvement district assessment payable by the
building project.
2. Should the real estate taxes payable during the base tax year be
reduced by final determination of legal proceedings, settlement or otherwise,
then, the real estate taxes payable during the base tax year shall be
correspondingly revised, the additional rent theretofore paid or payable
hereunder for all comparative years shall be recomputed on the basis of such
reduction, and tenant shall pay to Landlord as additional rent, within ten
(10) days after being billed therefor, any deficiency between the amount of
such additional rent as theretofore computed and the amount thereof due as
the result of such recomputations. Should the real estate taxes payable
during the base tax year be increased by such final determination of legal
proceedings, settlement or otherwise, then appropriate recomputation and
adjustment also shall be made.
3. If after Tenant have made a payment of additional rent under this
subdivision (c), Landlord shall receive a refund of any portion of the real
estate taxes payable for any comparative year after the base tax year on
which such payment of additional rent shall have been based, as a result of a
reduction of such real estate taxes by final determination of legal
proceedings, settlement or otherwise, Landlord shall within ten (10) days
after receiving the refund pay to Tenant The Percentage of the refund less
The Percentage of expenses (including attorneys' and appraisers' fees)
incurred by Landlord in connection with any such application or proceeding.
If prior to the payment of taxes for any comparative year, Landlord shall
have obtained a reduction of that comparative year's assessed valuation of
the building project, and therefore of said taxes, then the term "real estate
taxes" for that comparative year shall be deemed to include the amount of
Landlord's expenses in obtaining such reduction in assessed valuation,
including attorneys' and appraisers' fees.
4. The statements of the real estate taxes to be furnished by Landlord
as provided above shall be certified by. Landlord and shall constitute a
final determination as between Landlord and Tenant of the real estate taxes
for the Periods represented thereby, unless Tenant within thirty (30) days
after they are furnished shall give a written notice to Landlord that it
disputes their accuracy or their appropriateness, which notice shall specify
the particular respects in which the statement is inaccurate or
inappropriate. If Tenant shall so dispute said statement then, pending the
resolution of such dispute, tenant shall pay the additional rent to Landlord
in accordance with the statement furnished by Landlord.
5. In no event shall the fixed annual rent under this lease (exclusive
of the additional rents under this Article) be reduced by virtue of this
Article.
6. If the commencement date of the term of this lease is not the first
day of the first comparative year, then the additional rent due hereunder for
such first comparative year shall be a proportionate share of said additional
rent for the entire comparative year, said proportionate share to be based
upon the length of time that the lease term will be in existence during such
first comparative year. Upon the date of any expiration or termination of
this lease (except termination because of Tenant's default) whether the same
be the date hereinabove set forth for the expiration of the term or any prior
or subsequent date, a proportionate share of said additional rent for the
comparative year during which such expiration or termination occurs shall
immediately become due and payable by Tenant to Landlord, if it was not
theretofore already billed and paid. The said proportionate share shall be
based upon the length of time that this lease shall have been in existence
during such comparative year. Landlord shall promptly cause statements of
said additional rent for that comparative year to be prepared and furnished
to lessee. Landlord and Tenant shall thereupon make appropriate adjustments
of amounts then owing.
7. Landlord's and Tenant's obligations to make the adjustments referred
to in subdivision (6) above shall survive any expiration or termination of
this lease.
8. Any delay or failure of lessor in billing any tax escalation
hereinabove provided shall not constitute a waiver of or in any way impair
the continuing obligation of lessee to pay such tax escalation hereunder.
SERVICES.
25. Tenant acknowledges that it has been advised that the cleaning
contractor for the building may be a division or affiliate of Landlord.
Tenant agrees to employ said contractor, or such other contractor as Landlord
may from time to time designate, for any waxing, polishing and other
maintenance work of the demised premises and of the Tenant's furniture,
fixtures and equipment, provided that the prices charged by said contractor
are comparable to the prices charged by other contractors for the same work.
Tenant agrees that it shall not employ any other cleaning and maintenance
contractor, nor any individual, firm or organization for such purpose without
Landlord's prior written consent. If Landlord and Tenant cannot agree on
whether the prices being charged by the contractor designated by the Landlord
are comparable to those charged by other contractors, Landlord and Tenant
shall each obtain two bona fide bids for such work from reputable
contractors, and the average of the four bids thus obtained shall be the
standard of comparison.
JURY WAIVER.
26. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim involving any matter whatsoever arising out of or
in any way connected with this lease, the relationship of landlord and
tenant, Tenant's use or occupancy of the premises (except for personal injury
or property damage) or involving the right to any statutory relief or remedy.
Tenant will not interpose any counterclaim of any nature in any summary
proceeding.
NO WAIVER, ETC.
27. No act or omission of Landlord or its agents shall constitute an
actual or constructive eviction, unless Landlord shall have first received
written notice of Tenant's claim and shall have had a reasonable opportunity
to meet such claim. In the event that any payment herein provided for by
Tenant to Landlord shall become overdue for a period in excess of ten (10)
days, then at Landlord's option a "late charge" shall become due and payable
to Landlord, as additional rent, from the date it was due until payment is
made at the following rates: for individual and partnership Tenants, said
late charge shall be computed at the maximum legal rate of interest; for
corporate or governmental entity Tenants the late charge shall be computed at
two percent per month unless there is an applicable maximum legal rate of
interest which then shall be used. No act or omission of Landlord or its
agents shall constitute an acceptance of a surrender of the premises, except
a writing signed by Landlord. The delivery of keys to Landlord or its agents
shall not constitute a termination of this lease or a surrender of the
premises. Acceptance by Landlord of less than the rent herein provided shall
at Landlord's option be deemed on account of earliest rent remaining unpaid.
No endorsement on any check, or letter accompanying rent, shall be deemed an
accord and satisfaction, and such check may be cashed without prejudice to
Landlord. No waiver of any provision of this lease shall be effective,
unless such waiver be in writing signed by Landlord. This lease contains the
entire agreement between the parties, and no modification thereof shall be
binding unless in writing and signed by the party concerned. Tenant shall
comply with the rules and regulations printed in this lease, and any
reasonable modifications thereof or additions thereto. Landlord shall not be
liable to Tenant for the violation of such rules and regulations by any other
tenant. Failure of Landlord to enforce any provision of this lease, or any
rule or regulation, shall not be construed as the waiver of any subsequent
violation of a provision of this lease, or any rule or regulation. This lease
shall not be affected by nor shall Landlord in any way be liable for the
closing, darkening or bricking up of windows in the premises, for any reason,
including as the result of construction on any property of which the premises
are not a part or by Landlord's own acts.
OCCUPANCY AND USE BY TENANT.
28(A). Tenant acknowledges that its continued occupancy of the demised
premises, and the regular conduct of its business therein, are of utmost
importance to the Landlord in the renewal of other leases in the building, in
the renting of vacant space in the building, in the providing of electricity,
air conditioning, steam and other services to the tenants in the building,
and in the maintenance of the character and quality of the tenants in the
building. Tenant therefore covenants and agrees that it will occupy the
entire demised premises, and will conduct its business therein in the regular
and usual manner, throughout the term of this lease. Tenant acknowledges that
Landlord is executing this lease in reliance upon these covenants, and that
these covenants are a material element of consideration inducing the Landlord
to execute this lease. Tenant further agrees that if it vacates the demised
premises or fails to so conduct its business therein, at any time during the
term of this lease, without the prior written consent of the Landlord, then
all rent and additional rent reserved in this lease from the date of such
breach to the expiration date of this lease shall become immediately due and
payable to Landlord.
(B) The parties recognize and agree that the damage to Landlord
resulting from any breach of the covenants in subdivision (A) hereof will be
extremely substantial, will be far greater than the rent payable for the
balance of the term of this lease, and will be impossible of accurate
measurement. The parties therefore agree that in the event of a breach or
threatened breach of the said covenants, in addition to all of Landlord's
other rights and remedies, at law or in equity or otherwise, Landlord shall
have the right of injunction to preserve Tenant's occupancy and use. The
words "become vacant or deserted" as used elsewhere in this lease shall
include Tenant's failure to occupy or use as by this Article required.
(C) If Tenant breaches either of the covenants in subdivision (A)
above, and this lease be terminated because of such default, then, in
addition to Landlord's rights of reentry, restoration, preparation for and
rerental, and anything elsewhere in this lease to the contrary
notwithstanding, Landlord shall retain its right to judgment on and
collection of Tenant's aforesaid obligation to make a single payment to
Landlord of a sum equal to the total of all rent and and additional rent
reserved for the remainder of the original term of this lease, subject to
future credit or repayment to Tenant in the event of any rerenting of the
premises by Landlord, after first deducting from rerental income all expenses
incurred by Landlord in reducing to judgment or otherwise collecting Tenant's
aforesaid obligation, and in obtaining possession of restoring, preparing for
and re-letting the premises. In no event shall Tenant be entitled to a credit
or repayment for rerental income which exceeds the sums payable by Tenant
hereunder or which covers a period after the original term of this lease.
NOTICES.
29. Any xxxx, notice or demand from Landlord to Tenant, may be
delivered personally at the premises or sent by registered or certified mail.
Such xxxx, notice or demand shall be deemed to have been given at the time of
delivery or mailing. Any notice from Tenant to Landlord must be sent by
registered or certified mail to the last address designated in writing by
Landlord.
WATER.
30. Tenant shall pay the amount of Landlord's cost for all water used
by Tenant for any purpose other than ordinary lavatory uses, and any sewer
rent or tax based thereon. Landlord may install a water meter to measure
Tenant's water consumption for all purposes and Tenant agrees to pay for
the installation and maintenance thereof and for water consumed as shown
on said meter. If water is made available to Tenant in the building or the
demised premises through a meter which also supplies other premises, or
without a meter, then Tenant shall pay to Landlord $ per month for
water.
SPRINKLER SYSTEM.
31. If there shall be a "sprinkler system" in the demised premises for
any period during this lease, Tenant shall pay $ per month, for
sprinkler supervisory service. If such sprinkler system is damaged by any
act or omission of Tenant or its agents, employees, licensees of visitors.
Tenant shall restore the system to good working condition at its own expense.
If the New York Board of Fire Underwriters, the New York Fire Insurance
Exchange, the Insurance Services Office or any governmental authority
requires the installation or any alteration to a sprinkler system by reason
of Tenant's occupancy or use of the premises, including any alteration
necessary to obtain the full allowance for a sprinkler system in the fire
insurance rate of Landlord, or for any other reason, Tenant shall make such
installation or alteration promptly, and at its own expense.
HEAT, ELEVATOR, ETC.
32. Landlord shall provide elevator service during all usual business
hours including Saturdays until 1 P.M., except on Sundays, State holidays,
Federal holidays, or Building service Employees Union Contract holidays.
Landlord shall furnish heat to the premises during the same hours on the same
days in the cold season in each year. Landlord shall cause the premises to be
kept clean in accordance with Landlord's customary standards for the
building, provided they are kept in order by Tenant. Landlord, its cleaning
contractor and their employees shall have after-hours access to the demised
premises and the use of Tenant's light, power and water in the demised
premises as may be reasonably required for the purpose of cleaning the
demised premises. Landlord may remove Tenant's extraordinary refuse from the
building and Tenant shall pay the cost thereof. If the elevator in the
building are manually operated, Landlord may convert to automatic elevators
at any time, without in any way affecting Tenant's obligations hereunder.
SECURITY DEPOSIT.
33. Tenant has deposited with Landlord the sum of $6482.00 security for
the performance by Tenant of the terms of this lease. Landlord may use any
part of the Security to satisfy any default of Tenant and any expenses
arising from such default, including but not limited to any damages or rent
deficiency before or after re-entry by Landlord. Tenant shall, upon demand,
deposit with Landlord the full amount so used, in order that Landlord shall
have the full security deposit on hand at all times during the term of this
lease. If Tenant shall comply fully with the terms of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
lease. In the event of a sale or lease of the building containing the
premises, Landlord may transfer the security to the purchaser or tenant, and
Landlord shall thereupon be released from all liability for the return of the
security. This provision shall apply to every transfer or assignment of the
security to a new Landlord. Tenant shall have no legal power to assign or
encumber the security herein described.
ELECTRICITY.
34. Terms and conditions with respect to electricity rent inclusion, or
with respect to sub-metering, as the case may be, and general conditions with
respect to either, are set forth in Article 41 in the Rider annexed to and
made part of this lease.
RENT CONTROL.
35. In the event the fixed annual rent or additional rent or any part
thereof provided to be paid by Tenant under the provisions of this lease
during the demised term shall become uncollectible or shall be reduced or
required to be reduced or refunded by virtue of any Federal, State, County or
City law, order or regulation, or by any direction of a public officer or
body pursuant to law, or the orders, rules, code or regulations of any
organization or entity formed pursuant to law, whether such organization or
entity be public or private, then Landlord, at its option, may at any time
thereafter terminate this lease, by not less than thirty (30) days' written
notice to Tenant, on a date set forth in said notice. in which event this
lease and the term hereof shall terminate and come to an end on the date
fixed in said notice as if the said date were the date originally fixed
herein for the termination of the demised term. Landlord shall not have the
right so to terminate this lease if Tenant within such period of thirty (30)
days shall in writing lawfully agree that the rentals herein reserved are a
reasonable rental and agree to continue to pay said rentals, and if such
agreement by Tenant shall then be legally enforceable by Landlord.
SHORING.
36. Tenant shall permit any person authorized to make an excavation on
land adjacent to the building containing the premises to do any work within
the premises necessary to preserve the wall of the building from injury or
damage, and Tenant shall have no claim against Landlord for damages or
abatement of rent by reason thereof
EFFECT OF CONVEYANCE, ETC.
37. If the building containing the premises shall be sold, transferred
or leased, or the lease thereof transferred or sold, Landlord shall be
relieved of all future obligations and liabilities hereunder and the
purchaser, transferee or tenant of the building shall be deemed to have
assumed and agreed to perform all such obligations and liabilities of
Landlord hereunder. In the event of such sale, transfer or lease, Landlord
shall also be relieved of all existing obligations and liabilities hereunder,
provided that the purchaser. transferee or tenant of the building assumes in
writing such obligations and liabilities.
RIGHTS OF SUCCESSORS AND ASSIGNS.
38. This lease shall bind and inure to the benefit of the heirs,
executors, administrators, successors, and, except as otherwise provided
herein, the assigns of the parties hereto. If any provision of any Article of
this lease or the application thereof to any person or circumstances shall,
to any extent, be invalid or unenforceable, the remainder of that Article, or
the application of such provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each provision of said Article and of this lease shall be valid
and be enforced to the fullest extent permitted by law.
CAPTIONS.
39. The captions herein are inserted only for convenience, and are in
no way to be construed as a part of this lease or as a limitation of the
scope of any provision of this lease.
SEE RIDER(S) ANNEXED HERETO AND MADE A PART HEREOF
IN WITNESS WHEREOF, Landlord and Tenant have executed this lease as of
the day and year first above written.
XXXX BUILDING ASSOCIATES
By: XXXXXXX-XXXXX, INC.
By: /s/
SENIOR VICE-PRESIDENT
By: FAMOUS FIXIN S, INC.
By: /s/ Xxxxx Xxxxx
RIDER ANNEXED TO AND MADE A PART OF LEASE BETWEEN
XXXX BUILDING ASSOCIATES LANDLORD
AND FAMOUS FIXIN'S, INC. TENANT
RULES AND REGULATIONS REFERRED
TO IN THIS LEASE
1. No animals, birds, bicycles or vehicles shall be brought into or
kept in the premises. The premises shall not be used for manufacturing or
commercial repairing or for sale or display of merchandise or as a lodging
place, or for any immoral or illegal purpose, nor shall the premises be used
for a public stenographer or typist; xxxxxx or beauty shop; telephone,
secretarial or messenger service; employment, travel or tourist agency;
school or classroom; commercial document reproduction; or for any business
other than specifically provided for in the tenant's lease. Tenant shall not
cause or permit in the premises any disturbing noises which may interfere
with occupants of this or neighboring buildings, any cooking or
objectionable odors, or any nuisance of any kind, or any inflammable or
explosive fluid, chemical or substance. Canvassing, soliciting and peddling
in the building are prohibited, and each tenant shall cooperate so as to
prevent the same.
2. The toilet rooms and other water apparatus shall not be used for any
purposes other than those for which they were constructed, and no sweepings,
rags, ink, chemicals or other unsuitable substances shall be thrown therein.
Tenant shall not throw anything out of doors, windows or skylights, or into
hallways, stairways or elevators, nor place food or objects on outside
window xxxxx. Tenant shall not obstruct or cover the halls, stairways and
elevators, or use them for any purpose other than ingress and egress to or
from tenant's premises, nor shall skylights, windows, doors and transoms
that reflect or admit light into the building be covered or obstructed in
any way.
3. Tenant shall not place a load upon any floor of the premises in
excess of the load per square foot which such floor was designed to carry
and which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all safes in the premises. Business machines and
mechanical equipment shall be placed and maintained by tenant, at tenant's
expense, only with Landlord's consent and in settings approved by Landlord
to control weight, vibration, noise and annoyance. Smoking or carrying
lighted cigars, pipes or cigarettes in the elevators of the building is
prohibited. If the premises are on the ground floor of the building the
tenant thereof at its expense shall keep the sidewalks and curb in front of
the premises clean and free from ice, snow, dirt and rubbish.
4. Tenant shall not move any heavy or bulky materials into or out of
the building without Landlord's prior written consent, and then only during
such hours and in such manner as Landlord shall approve. If any material or
equipment requires special handling, tenant shall employ only persons
holding a Master Rigger's License to do such work, and all such work shall
comply with all legal requirements. Landlord reserves the right to inspect
all freight to be brought into the building, and to exclude any freight
which violates any rule, regulation or other provision of this lease.
5. No sign, advertisement, notice or thing shall be inscribed, painted
or affixed on any part of the building, without the prior written consent of
Landlord. Landlord may remove anything installed in violation of this
provision, and Tenant shall pay the cost of such removal. Interior signs on
doors and directories shall be inscribed or affixed by Landlord at Tenant's
expense. Landlord shall control the color, size, style and location of all
signs, advertisements and notices. No advertising of any kind by Tenant shall
refer to the building, unless first approved in writing by Landlord.
6. No article shall be fastened to, or holes drilled or nails or screws
driven into, the ceilings, walls, doors or other portions of the premises,
nor shall any part of the premises be painted, papered or otherwise covered,
or in any way marked or broken, without the prior written consent of
Landlord.
7. No existing locks shall be changed, nor shall any additional locks
or bolts of any kind be placed upon any door or window by Tenant, without the
prior written consent of Landlord. At the termination of this lease, Tenant
shall deliver to Landlord all keys for any portion of the premises or
building. Before leaving the premises at any time, Tenant shall close all
windows and close and lock all doors.
8. No Tenant shall purchase or obtain for use in the premises any
spring water, ice, towels, food, bootblacking, barbering or other such
service furnished by any company or person not approved by Landlord. Any
necessary exterminating work in the premises shall be done at Tenant's
expense, at such times, in such manner and by such company as Landlord shall
require. Landlord reserves the right to exclude from the building, from 6:00
p.m. to 8:00 am., and at all hours on Sunday and legal holidays, all persons
who do not present a pass to the building signed by Landlord. Landlord will
furnish passes to all persons reasonably designated by Tenant. Tenant shall
be responsible for the acts of all persons to whom passes are issued at
Tenant's request.
9. Whenever Tenant shall submit to Landlord any plan, agreement or
other document for Landlord's consent or approval, Tenant agrees to pay
Landlord as additional rent, on demand, an administrative fee equal to the
sum of the reasonable fees of any architect, engineer or attorney employed by
Landlord to review said plan, agreement or document and Landlord's
administrative costs for same.
10. The use in the demised premises of auxiliary heating devices, such
as portable electric heaters, heat lamps or other devices whose principal
function at the time of operation is to produce space heating, is prohibited.
In case of any conflict or inconsistency between any provisions of
this lease and any of the rules and regulations as originally or as hereafter
adopted, the provisions of this lease shall control.
RIDER ANNEXED TO AND MADE
PART OF A LEASE BETWEEN
XXXX BUILDING ASSOCIATES, LANDLORD
AND FAMOUS FIXIN'S INC. TENANT
ELECTRICITY
41. Tenant agrees that Landlord may furnish electricity to Tenant on a
"submetering" basis or on a 11rent inclusion" basis". Electricity and
electric service, as used herein, shall mean any element affecting the
generation, transmission, and/or distribution or redistribution of
electricity, including but not limited to services which facilitate the
distribution of service.
(A). Submetering: If and so long as Landlord provides electricity to
the demised premises on a submetering basis, Tenant covenants and agrees to
purchase the same from Landlord or Landlord's designated agent at charges,
terms and rates set, from time to time, during the term of this lease by
Landlord but not more than those specified in the service classification in
effect on January 1, 1970 pursuant to which Landlord then purchased electric
current from the public utility corporation serving the part of the city
where the building is located; provided however, said charges shall be
increased in the same percentage as any percentage increase in the billing to
Landlord for electricity for the entire building, by reason of increase in
Landlord's electric rates or service classifications, subsequent to January
1, 1970, and so as to reflect any increase in Landlord's electric charges,
including changes in market prices for electricity from utilities and/or
other providers, in fuel adjustments, or by taxes or charges of any kind
imposed on Landlord 's electricity purchases or redistribution, or for any
other such reason, subsequent to said date. Any such percentage increase in
Landlord's billing for electricity due to changes in rates, service
classifications, or market prices, shall be computed by the application of
the average consumption (energy and demand) of electricity for the entire
building for the twelve (12) full months immediately prior to the rate and/or
service classification change, or any changed methods of or rules on billing
for same, applied on a consistent basis to the new rate and/or service
classification or market price, and to the service classification and rate in
effect on January 1, 1970. If the average consumption of electricity for the
entire building for said prior twelve (12) months cannot reasonably be
applied and used with respect to changed methods of or rules on billing, then
the percentage shall be computed by the use of the average consumption
(energy and demand) for the entire building for the first three (3) months
after such change, projected to a full twelve (12) months, so as to reflect
the different seasons; and that same consumption, so projected, shall be
applied to the service classification and rate in effect on January 1, 1970.
Where more than one meter measures the service of Tenant in the building, the
service rendered through each meter may be computed and billed separately in
accordance with the rates herein specified. Bills therefore shall be rendered
at such times as Landlord may elect and the amount, as computed from a meter,
shall be deemed to be, and be paid as, additional rent. In the event that
such bills are not paid within five (5) days after the same are rendered,
Landlord may, without further notice, discontinue the service of electric
current to the demised premises without releasing Tenant from any liability
under this lease and without Landlord or Landlord's agent incurring any
liability for any damage or loss sustained by lessee by such discontinuance
of service. If any tax is imposed upon Landlord's receipt from the sale,
resale or redistribution of electricity or gas or telephone service to Tenant
by any Federal, State, or Municipal authority, Tenant covenants and agrees
that where permitted by law, Tenant's pro-rata share of such taxes shall be
passed on to and included in the xxxx of, and paid by, Tenant to Landlord.
(B). Rent Inclusion: If and so long as Landlord provides electricity to
the demised premises on a rent inclusion basis, Tenant agrees that the fixed
annual rent shall be increased by the amount of the Electricity Rent
Inclusion Factor ("ERIF), as hereinafter defined. Tenant acknowledges and
agrees (1) that the the fixed annual rent hereinabove set forth in this lease
does not yet, but is to include an ERIF of $3.20 per rentable square foot to
compensate Landlord for electrical wiring and other installations necessary
for, and for its obtaining and making available to Tenant the redistribution
of electric current as an additional service; and (ii) that said ERIF, which
shall be subject to periodic adjustments as hereinafter provided, has been
partially based upon an estimate of the Tenant's connected electrical load,
in whatever manner delivered to Tenant, which shall be deemed to be the
demand (KW), and hours of use thereof, which shall be deemed to be the energy
(KVA7H), for ordinary lighting and light office equipment and the operation
of the usual small business machines, including Xerox or other copying
machines (such lighting and equipment are hereinafter called "Ordinary
Equipment") during ordinary business hours ("ordinary business hours" shall
be deemed to mean 50 hours per week), with Landlord providing an average
connected load of 4 1/2 xxxxx of electricity for all purposes per rentable
square foot. Any installation and use of equipment other than Ordinary
Equipment and/or any connected load and/or energy usage by Tenant in excess
of the foregoing shall result in adjustment of the ERIF as hereinafter
provided. For purposes of this lease the rentable square foot area of the
presently demised premises shall be deemed to be 1341 Square Feet.
If the cost to Landlord of electricity shall have been, or shall be,
increased or decreased subsequent to May 1, 1996 (whether such change occurs
prior to or during the term of this Lease), by change in Landlord's electric
rates or service classifications, or electricity charges, including changes
in market prices, or by any increase, subsequent to the last such electric
rate or service classification change or market price change, in fuel
adjustments or charges of any kind, or by taxes, imposed on Landlord's
electricity purchases or on Landlord's electricity redistribution, or for any
other such reason, then the aforesaid ERIF portion of the fixed annual rent
shall be changed in the same percentage as any such change in cost due to
changes in electric rates, service classifications or market prices, and,
also Tenant's payment obligation, for electricity redistribution, shall change
from time to time so as to reflect any such increase in fuel
adjustments or charges, and such taxes. Any such percentage change in
Landlord's cost due to change in Landlord's electric rates or service
classifications or market prices, shall be computed on the basis of the
average consumption of electricity for the building for the twelve full
months immediately prior to the rate change or other such changes in cost,
energy and demand, and any changed methods of or rules on billing for same,
applied on a consistent basis to the new electric rate or service
classification or market price and to the immediately prior existing electric
rate or service classification or market price. If the average consumption
(energy and demand) for the entire building for said prior (12) months cannot
reasonably be applied and used with respect to changed methods of or rules on
billing, then the percentage increase shall be computed by the use of the
average consumption (energy and demand) for the entire building for the first
three (3) months after such change, projected to a full twelve (12) months,
so as to reflect the different seasons; and that same consumption, so
projected, shall be applied to the rate and/or service classification or
market price which existed immediately prior to the change. The parties agree
that a reputable, independent electrical consultant firm, selected by
Landlord, ("Landlord's electrical consultant"), shall determine the
percentage change for the changes in ERIF due to Landlord's changed costs,
and that Landlord's electrical consultant may from time to time make surveys
in the demised premises of the electrical equipment and fixtures and use of
current. (i) If such survey shall reflect a connected electrical load in the
demised premises in excess of 41/2watts of electricity for all purposes per
rentable square foot and/or energy usage in excess of ordinary business hours
(each such excess hereinafter called "excess electricity") then the connected
electrical load and/or the hours of use portion(s) of the then existing ERIF
shall be increased by an amount which is equal to a fraction of the then
exisiting ERIF, the numerator of which is the excess electricity (i.e. excess
connected load and/or excess usage) and the denominator of which is the
connected load and/or the energy usage which was the basis of the then
existing ERIF Such fractions shall be determined by Landlord's electrical
consultant. The fixed annual rent shall then be appropriately adjusted,
effective as of the date of any such change in connected load and/or usage,
as disclosed by said survey. (ii) If such survey shall disclose installation
and use of other than Ordinary Equipment, then effective as of the date of
said survey, there shall be added to the ERIF portion of fixed annual rent
(computed and fixed as hereinbefore described) an additional amount equal to
what would be paid under the SC-4 Rate I Service Classification in effect on
May 1, 1996 (and not the time-of-day rate schedule) for such load and usage
of electricity, with the connected electrical load deemed to be the demand
(KW) and the hours of use thereof deemed to be the energy (KWH), as
hereinbefore provided, (which addition to the ERIF shall be increased or
decreased by all electricity cost changes of Landlord, as hereinabove
provided, from May 1, 1996 through the date of billing).
In no event, whether because of surveys, rates or cost changes, or for
any other reason, is the originally specified $3.20 per per rentable square
foot ERIF portion of the fixed annual rent (plus any net increase thereof,
but not decrease, by virtue of all electricity rate, service classification
or market price changes of Landlord subsequent to May 1, 1996) to be reduced.
(C). General Conditions: The determinations by Landlord's electrical
consultant shall be binding and conclusive on Landlord and Tenant from and
after the delivery of copies of such determinations to Landlord and Tenant,
unless, within fifteen (15) days after delivery thereof, Tenant disputes such
determination. If Tenant so disputes the determination, it shall, at its own
expense, obtain from a reputable, independent electrical consultant its own
determinations in accordance with the provisions of this Article. Tenant's
consultant and Landlord's consultant then shall seek to agree. If they cannot
agree within thirty (30) days they shall choose a third reputable electrical
consultant, whose cost shall be shared equally by the parties, to make
similar determinations which shall be controlling. (if they cannot agree on
such third consultant within ten (10) days, than either party may apply to
the Supreme Court in the County of New York for such appointment.) However,
pending such controlling determinations, Tenant shall pay to Landlord the
amount of additional rent or ERIF in accordance with the determinations of
Landlord's electrical consultant. If the controlling determinations differ
from Landlord's electrical consultant, then the parties shall promptly make
adjustment for any deficiency owed by Tenant or overage paid by Tenant.
At the option of Landlord, Tenant agrees to purchase from Landlord or
its agents all lamps and bulbs used in the demised premises and to pay for
the cost of installation thereof Supplementing Article 35 hereof, if all or
part of the submetering additional rent or the ERIF payable in acccordance
with Subdivision (A) or (B) of this Article becomes uncollectible or reduced
or refunded by virtue of any law, order or regulation, the parties agree
that, at Landlord's option, in lieu of submetering additional rent or ERIF,
and in consideration of Tenant's use of the building's electrical
distribution system and receipt of redistributed electricity and payment by
Landlord of consultant's fees and other redistribution costs, the fixed
annual rental rate(s) to be paid under this lease shall be increased by an
"alternative charge" which shall be a sum equal to $3.20 per year per
rentable square foot of the demised premises, changed in the same percentage
as any increases in the cost to Landlord for electricity for the entire
building subsequent to May 1, 1996, because of electric rate, service
classification or market price changes, such percentage change to be computed
as in Subdivision (B) provided.
Landlord shall not be liable to Tenant for any loss or damage or
expense which Tenant may sustain or incur if either the quantity or 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 feeders to
the building or wiring installation. Tenant agrees not to connect any
additional electrical equipment to the building electric distribution system,
other than lamps, typewriters and other small office machines which consume
comparable amounts of electricity, without Landlord's prior written consent,
which consent shall not be unreasonably withheld. Any riser or risers to
supply Tenant's electrical requirements, upon written request of Tenant, will
be installed by Landlord, at the sole cost and expense of Tenant, if, in
Landlord's sole judgment, the same are necessary and will not cause permanent
damage or injury to the building or demised premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants. In addition to the installation of such riser or risers, Landlord
will also at the sole cost and expense of Tenant, install all other equipment
proper and necessary in connection therewith subject to the aforesaid terms
and conditions. The parties acknowledge that they understand that it is
anticipated that electric rates, charges, etc., may be changed by virtue of
time-of-day rates or changes in other methods of billing, and/or electricity
purchases and the redistribution thereof, and fluctuation in the market price
of electricity, and that the references in the foregoing paragragraphs to
changes in methods of or rules on billing are intended to include any such
changes. Anything hereinabove to the contrary notwithstanding, in no event is
the submetering additional rent or EREF, or any "alternative charge", to be
less than an amount equal to the total of Landlord's payments to public
utilities and/or other providers for the electricity consumed by Tenant (and
any taxes thereon or on redistribution of same) plus 5% thereof for
transmission line loss, plus 15% thereof for other redistribution costs. The
Landlord reserves the right, at any time upon thirty (30) days' written
notice, to change its furnishing of electricity to Tenant from a rent
inclusion basis to a submetering basis, or vice versa, or to change to the
distribution of less than all the components of the existing service to
Tenant. The Landlord reserves the right to terminate the furnishing of
electricity on a rent inclusion, submetering, or any other basis at any time,
upon thirty (30) days' written notice to the Tenant, in which event the
Tenant may make application directly to the public utility and/or other
providers for the Tenant's entire separate supply of electric current and
Landlord shall permit its wires and conduits, to the extent available and
safely capable, to be used for such purpose, but only to the extent of
Tenant's then authorized load. Any meters, risers, or other equipment or
connections necessary to furnish electricity on a submetering basis or to
enable Tenant to obtain electric current directly from such utility and/or
other providers shall be installed at Tenant's sole cost and expense. Only
rigid conduit or electricity metal tubing (EMT) will be allowed. The Landlord,
upon the expiration of the aforesaid thirty (30) days' written
notice to the Tenant may discontinue furnishing the electric current but this
lease shall otherwise remain in full force and effect. If Tenant was provided
electricity on a rent inclusion basis when it was so discontinued, then
commencing when Tenant receives such direct service and as long as Tenant
shall continue to receive such service, the fixed annual rent payable under
this lease shall be reduced by the amount of the EW which was payable
immediately prior to such discontinuance of electricity on a rent inclusion
basis.
42. Lessor and Lessee represent that they each have not dealt with any person
other than Helmsley-Spear, Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx in
connection with this transaction and each agrees to indemnify and hold the
other harmless from any damage suffered by such party through any breach of
this representation.
43. Change of Location:
A. Tenant covenants and agrees that Landlord shall have the absolute and
unqualified right upon notice to Tenant, to designate as the Demised Premises
that part of any other floor in the Building that approximately corresponds
to the premises demised hereunder, provided, however, (i) Landlord may
exercise this right only once during the Initial Term of this Lease. (ii)
such substituted space shall be the equivalent or better in the appearance of
the Demised Premises upon completion of Landlord's Initial Construction (wear
and tear, as well as damage to the Demised Premises caused by Tenant,
excepted) and (iii) Landlord shall move Tenant to the substituted space
during a single weekend. Such notice shall specify and designate the space so
substituted for the Demised Premises Notwithstanding such substitution of
space, this Lease and all terms, provisions, covenants and conditions
contained in this Lease shall remain and continue in full force and effect,
except that the Demised Premises shall be and be deemed to be such
substituted space (hereinafter called "Substituted Space"), with the same
force and effect as if the Substituted Space were originally specified in
this Lease as the premises demised hereunder.
B. In the event of the substitution of space as provided in Section 43.,
Tenant, upon six (6) months prior written notice, shall move to the
Substituted Space at Landlord's expense, and upon failure of Tenant to so
move to the Substituted Space, Landlord may, as Tenant's agent, remove Tenant
from the Demised Premises to the Substituted Space. Failure of Tenant to move
to the Substituted Space pursuant to this Lease Article 43 shall be deemed a
substantial breach of this Lease. Landlord shall reimburse Tenant for
Tenant's reasonable and necessary out-of-pocket expenses actually incurred
with regard to the move to the Substituted Space. Upon request from Landlord,
Tenant shall supply Landlord with satisfactory proof of out-of pocket
expenses incurred by Tenant in moving from the Demised Premises to the
Substituted Space.
C. Following such substitution of space (pursuant to this Article 43) if
any, Landlord and Tenant shall, promptly at the request of either party,
execute and deliver an agreement in recordable from setting forth such
substitution of space.
44. Notwithstanding anything in this Lease set forth to the contrary, it is
specifically understood and agreed that Tenant shall not be entitled to and
hereby waives any claim to or for (i) an abatement of any rental hereunder,
(ii) constructive eviction and (iii) damages (whether actual, special,
consequential or punitive) by reason of the demised premises or any portion
thereof being rendered inaccessible or unusable or unsuitable for Tenant's
business as a result of the failure of any Building systems (including air
conditioning, heating, ventilation, plumbing or electrical systems, elevator
equipment, alarm and security devices) or any computers or processing units
or chips which may control or operate any such systems to read or process (or
process accurately) any data (including dates or time) relating to the year
2000.
45. If and so long as Tenant is not in default under this lease beyond any
grace period, Tenant shall be entitled a total rent credit in the amount of
$9,722.25. Said credit to be applied in three (3) monthly installment of
$3,240.75 for the months of January & February & March 2000. Tenant shall
nevertheless be obligated, from and after the commencement date of the term,
to pay additional rents hereunder and to make payment of the ERIF portion of
the fixed annual rent due under Article #41 hereof, (anything in said Article
#41 to the contrary notwithstanding.)
Anything contained herein above to the contrary notwithstanding. If
Tenant at any time during the term of this Lease, breaches any material
covenant, condition or provision of this Lease and fails to cure such breach
within any applicable grace period then, in addition to all other damages and
remedies herein provided and to which Landlord may be otherwise entitled, to
the repayment in full of any rent credit theretofore enjoyed by Tenant which
repayment Tenant shall make upon demand therefore.
46. In the event Tenant hereafter shall require larger space during the term
of this Lease, and Substitute space elsewhere in the building of
approximately 2000 SF_square feet or more becomes available for leasing by
Landlord (i.e., not than under offer to proposed tenant or subject to the
option of another tenant; and subject to the right of any existing tenant to
renew and extend its occupancy of such space, whether pursuant to an option
contained in its lease or otherwise), then if Tenant enters into a lease with
Landlord for such substitute space, at a rental and upon other terms and
conditions acceptable to Landlord, Tenant shall have the option to cancel
this Lease, effective as of the rent commencement date of the substitute
lease, provided Tenant gives Landlord at least thirty (30) days prior written
notice of its exercise of such cancellation option.
47. RIDER ANNEXED TO AND MADE PART OF A LEASE BETWEEN
XXXX BUILDING ASSOCIATES, LANDLORD
AND FAMOUS FIXIN'S, INC. TENANT
Supplementing Articles 3 and 28 hereof:
ASSIGNMENT AND SUBLETTING
A. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it
shall not assign, mortgage or encumber this Lease, nor underlet, or suffer or
permit the demised premises or any part thereof to be used or occupied by
others, without the prior written consent of Landlord in each instance. If
this Lease be assigned, or if the demised premises or any part thereof be
underlet or occupied by anybody other than Tenant, Landlord may, after
default by Tenant, collect rent from the assignee, undertenant or occupant,
and apply the net amount collected to the rent herein reserved, but no
assignment, underletting, occupancy or collection shall be deemed a waiver of
the provisions hereof, the acceptance of the assignee, undertenant or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained. The consent by
Landlord to an assignment or underletting shall not in any way be construed
to relieve Tenant from obtaining the express consent in writing of Landlord
to any further assignment or underletting. In no event shall any permitted
sublessee assign or encumber its sublease or further sublet all or any
portion of its sublet space, or otherwise suffer or permit the sublet space
or any part thereof to be used or occupied by others, without Landlord's
prior written consent in each instance. A modification, amendment or
extension of a sublease shall be deemed a sublease. if any lien is filed
against the demised premises or the building of which the same form a part
for brokerage services claimed to have been performed for Tenant, whether or
not actually performed, the same shall be discharged by Tenant within ten
(10) days thereafter, at Tenant's expense, by filing the bond required by
law, or otherwise, and paying any other necessary sums, and Tenant agrees to
indemnify Landlord and its agents and hold them harmless from and against any
and all claims, losses or liability resulting from such lien for brokerage
services rendered.
B. If Tenant desires to assign this Lease or to sublet all or any portion
of the demised premises, it shall first submit in writing to Landlord the
documents described in Section C hereof, and shall offer in writing, (i) with
respect to a prospective assignment, to assign this Lease to Landlord without
any payment of moneys or other consideration therefor, or, (ii) with respect
to a prospective subletting, to sublet to Landlord the portion of the demised
premises involved ("Leaseback Area") for the term specified by Tenant in its
proposed sublease and at the lower of (a) Tenant's proposed subrental or (b)
at the same rate of fixed rent and additional rent, and otherwise on the same
terms, covenants and conditions (including provisions relating to escalation
rents), as are contained herein and as are allocable and applicable to the
portion of the demised premises to be covered by such subletting. The offer
shall specify the date when the Leaseback Area will be made available to
Landlord, which date shall be in no event earlier than ninety (90) days nor
later than one hundred eighty (180) days following the acceptance of the
offer. If an offer of sublease is made, and if the proposed sublease will
result in all or substantially all of the demised premises being sublet, then
Landlord shall have the option to extend the term of its proposed sublease
for the balance of the term of this Lease less one (1) day.
Landlord shall have a period ninety (90) days from the receipt of such
offer to either accept or reject the same. If Landlord shall accept such
offer (i) Tenant shall then execute and deliver to Landlord, or to anyone
designated or named by Landlord, an assignment or sublease, as the case may
be, in either case in a form reasonably satisfactory to Landlord's counsel;
and (ii) if the proposed transaction is a sublease and Landlord accepts such
offer, Tenant, on demand, shall pay to Landlord or its managing agent (as
Landlord shall elect) an amount equal to the brokerage commissions which
would have been incurred by Tenant but for Landlord's accepting such offer.
If a sublease is so made it shall expressly:
(a) permit Landlord to make further subleases of all or any part of the
Leaseback Area and (at no cost or expense to Tenant) to make and authorize
any and all changes, alterations, installations and improvements in such
space as necessary;
(b) provide that Tenant will at all times permit reasonably appropriate
means of ingress to and egress from the Leaseback Area;
(c) negate any intention that the estate created under such sublease be
merged with any other estate held by either of the parties;
(d) provide that Landlord shall accept the Leaseback Area "as is"
except that Landlord, at Tenant's expense, shall perform all such work and
make all such alterations as maybe required physically to separate the
Leaseback Area from the remainder of the demised premises and to permit
lawful occupancy, it being intended that Tenant shall have no other cost or
expense in connection with the subletting of the Leaseback Area;
(e) provide that at the expiration of the term of such sublease Tenant
will accept the Leaseback Area in its then existing condition, subject to the
obligations of Landlord to make such repairs thereto as may be necessary to
preserve the Leaseback Area in good order and condition, ordinary wear and
tear excepted.
Landlord shall indemnify and save Tenant harmless from all obligations
under this Lease as to the Leaseback Area during the period of time it is so
sublet, except for fixed annual rent and additional rent, if any, due under
the within Lease, which are in excess of the rents and additional sums due
under such sublease.
Subject to the foregoing, performance by Landlord, or its designee,
under a sublease of the Leaseback Area shall be deemed performance by Tenant
of any similar obligation under this Lease and any default under any such
sublease shall not give rise to a default under a similar obligation
contained in this Lease, nor shall Tenant be liable for any default under this
Lease or deemed to be in default hereunder if such default is occasioned
by or arises from any act or omission of the tenant under such sublease or is
occasioned by or arises from any act or omission of any occupant holding
under or pursuant to any such sublease.
C. If Tenant requests Landlord's consent to a specific assignment or
subletting, it shall submit in writing to Landlord (i) the name and address
of the proposed assignee or sublessee, (ii) a duly executed counterpart of
the proposed agreement of assignment or sublease, (iii) reasonably
satisfactory information as to the nature and character of the business of
the proposed assignee or sublessee, and as to the nature of its proposed use
of the space, and (iv) banking, financial or other credit information
relating to the proposed assignee or sublessee reasonably sufficient to enable
Landlord to determine the financial responsibility and character of
the proposed assignee or sublessee.
D. If Landlord shall not have accepted Tenant's offer, as provided in
Section B, then Landlord will not unreasonably withhold or delay its consent
to Tenant's request for consent to such specific assignment or subletting,
where Tenant will not move the conduct of its business to another building in
New York City. Any such consent of Landlord shall be subject to the terms of
this Article and conditioned upon there being no default by Tenant, beyond
any grace period, under any of the terms, covenants and conditions of this
Lease at the time that Landlord's consent to any such subletting or
assignment is requested and on the date of the commencement of the term of
any such proposed sublease or the effective date of any such proposed
assignment.
E. Upon receiving Landlord's written consent (and unless theretofore
delivered to Landlord) a duly executed copy of the sublease or assignment
shall be delivered to Landlord within ten (10) days after execution thereof.
Any such sublease shall provide that the sublessee shall comply with all
applicable terms and conditions of this Lease to be performed by the Tenant
hereunder. Any such assignment of lease shall contain an assumption by the
assignee of all of the terms, covenants and conditions of this Lease to be
performed by the Tenant.
F. Anything herein contained to the contrary notwithstanding:
1. Tenant shall not advertise (but may list with brokers) its
space for assignment or subletting at a rental rate lower than the greater of
the then building rental rate for such space or the rental rate then being
paid by Tenant to Landlord.
2. The transfer of a majority of the issued and outstanding
capital stock of any corporate tenant or subtenant of this Lease or a
majority of the total interest in any partnership tenant or subtenant,
however accomplished, and whether in a single transaction or in a series of
related or unrelated transactions, shall be deemed an assignment of this
Lease or of such sublease. The transfer of outstanding capital stock of any
corporate tenant, for purposes of this Article, shall not include sale of
such stock by persons other than those deemed "insiders" within the meaning
of the Securities Exchange Act of 1934 as amended, and which sale is effected
through "over-the-counter market" or through any recognized stock exchange.
3. No assignment or subletting shall be made:
(a) To any person or entity which shall at that time be a tenant,
subtenant or other occupant of any part of the building of which the demised
premises form a part, or who dealt with Landlord or Landlord's agent
(directly or through a broker) with respect to space in the building during
the six (6) months immediately preceding Tenant's request for Landlord's
consent;
(b) By the legal representatives of the Tenant or by any person
to whom Tenant's interest under this Lease passes by operation of law, except
in compliance with the provisions of this Article;
(c) To any person or entity for the conduct of a business which
is not in keeping with the standards and the general character of the
building of which the demised premises form a part.
G. Anything hereinabove contained to the contrary notwithstanding, the
offer back to Landlord provisions of Section B hereof shall not apply to, and
Landlord will not unreasonably withhold or delay its consent to an assignment
of this Lease, or sublease of all or part of the demised premises, to the
parent of Tenant or to a wholly-owned subsidiary of Tenant or of said parent,
or to any corporation into or with which Tenant may be merged or
consolidated, provided that the net worth of the resulting corporation is at
least equal to the greater of (a) the net worth of Tenant on the date hereof or
(b) the net worth of Tenant immediately prior to such merger or
consolidation; provided, further, that any such assignment of Lease shall
contain an assumption by the assignee of all of the terms, covenants and
conditions of this Lease to be performed by the Tenant. Tenant agrees that no
such assignment or subletting shall be effective unless and until Tenant
gives Landlord written notice thereof, together with a true copy of the
assignment or of the sublease.
H. If Landlord shall not have accepted Tenant's offer and Tenant
effects such assignment or subletting, then Tenant thereafter shall pay to
Landlord a sum equal to (a) any rent or other consideration paid to Tenant by
any subtenant which (after deducting the costs of Tenant, if any, in
effecting the subletting, including reasonable alteration costs, commissions
and legal fees) is in excess of the rent allocable to the subleased space
which is then being paid by Tenant to Landlord pursuant to the terms hereof;
and (b) any other profit or gain (after deducting any necessary expenses
incurred) realized by Tenant from any such subletting or assignment. All sums
payable hereunder by Tenant shall be payable to Landlord as additional rent
upon receipt thereof by Tenant.
I. In no event shall Tenant be entitled to make, nor shall Tenant make,
any claim, and Tenant hereby waives any 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 Landlord has unreasonably
withheld or unreasonably delayed its consent or approval to a proposed
assignment or subletting as provided for in this Article. Tenant's sole
remedy shall be an action or proceeding to enforce any such provision, or for
specific performance, injunction or declaratory judgment.
