5/5/80 B
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STANDARD FORM OF STORE LEASE
The Real Estate Board of New York, Inc.
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AGREEMENT OF LEASE, made as of this 19th day of December 1996, between 000
Xxxxxx Xxxxxx Corp., 000-000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 party of
the first part, hereinafter referred to as OWNER, and Blue Fish Clothing, Inc.,
X.X. Xxx 00, #0 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 party of the second
part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
ground floor and part of the basement consisting of approximately 6,500 square
feet of space as shown on the floor plans attached hereto as Exhibit "A" in the
building known as 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, a/k/a 000 Xxxxx Xxxxxx
in the Borough of Manhattan, City of New York, for the term of ten (10) years
(or until such term shall sooner cease and expire as hereinafter provided) to
commence on the 1st day of January nineteen hundred and ninety-seven, and to end
on the 31st day of December two thousand and six, both dates inclusive, at an
annual rental rate of - See attached rider, paragraph R42 - which Tenant agrees
to pay in lawful money of the United States which shall be legal tender in
payment of all debts and dues, public and private, at the time of payment, in
equal monthly installments in advance on the first day of each month during said
term, at the office of Owner or such other place as Owner may designate, without
any set off or deduction whatsoever, except that Tenant shall pay the first
monthly installment(s) on the execution hereof (unless this lease be a renewal).
All payments of rent and additional rent shall be made payable to Owner or as
otherwise specified by Owner.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
1. RENT. Tenant shall pay the rent as above and as hereinafter provided.
2. OCCUPANCY. Tenant shall use and occupy demised premises for Retail store,
wholesale showroom and office for clothing and home furnishing designer and for
no other purpose. Tenant shall at all times conduct its business in a high grade
and reputable manner, shall not violate Article 37 hereof, and shall keep show
windows and signs in a neat and clean condition.
3. ALTERATIONS. Tenant shall make no changes in or to be demised premises of any
nature without Owner's prior written consent. Subject to the prior written
consent of Owner and to the provisions of this article, Tenant at Tenant's
expense, may make alterations, installations, additions or improvements which
are non-structural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of, the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such xxxxxxx'x compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised
premises, or the building of which the same forms a part, for work claimed to
have done for, or materials furnished to, Tenant, whether or not done pursuant
to this article, the same shall be discharged by Tenant within ten days
thereafter, at Tenant's expense, by filing the bond required by law. All
fixtures and all paneling, partitions, railings and like installations,
installed in the premises at any time, either by Tenant or by Owner on Tenant's
behalf, shall, upon installation, become the property of Owner and shall remain
upon and be surrendered with the demised premises unless Owner, by notice to
Tenant no later than twenty days prior to the date fixed as the termination of
this lease, elects to relinquish Owner's rights thereto and to have them removed
by Tenant, in which event the same shall be removed from the premises by Tenant
prior to the expiration of the lease, at Tenant's expense. Nothing in this
article shall be construed to give Owner title to or to prevent Tenant's removal
of trade fixtures, moveable office furniture and equipment, but upon removal of
any such from the premises or upon removal of other installations as may be
required by Owner, Tenant shall immediately and at its expense, repair and
restore the premises to the condition existing prior to installation and repair
any damage to the demised premises or the building due to such removal. All
property permitted or required to be removed by Tenant at the end of the term
remaining in the premises after Tenant's removal shall be deemed abandoned and
may, at the election of Owner, either be retained as Owner's property or may be
removed from the premises by Owner at Tenant's expense. Alterations and
additions made by Tenant shall be owned by Tenant for depreciation purposes.
4. REPAIRS. Owner shall maintain and repair the public portions of the building,
both exterior and interior, except that if Owner allows Tenant to erect on the
outside of the building a sign or signs, or a hoist, lift or sidewalk elevator
for the exclusive use of Tenant, Tenant shall maintain such exterior
installations in good appearance and shall cause the same to be operated in a
good and workmanlike manner and shall make all repairs thereto necessary to keep
same in good order and condition, at Tenant's own cost and expense, and shall
cause the same to be covered by the insurance provided for hereafter in Article
8. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein, and the sidewalks
adjacent thereto, and at its sole cost and expense, make all non-structural
repairs thereto as and when needed to preserve them in good working order and
condition, reasonable wear and tear, obsolescence and damage from the elements,
fire or other casualty, excepted. If the demised premises be or become infested
with vermin, Tenant shall at Tenant's expense, cause the same to be exterminated
from time to time to the satisfaction of Owner. Except as specifically provided
in Article 9 or elsewhere in this lease, there shall be no allowance to the
Tenant for the diminuation of rental value and no liability on the part of Owner
by reason of inconvenience, annoyance or injury to business arising from Owner,
Tenant or others making or failing to make any repairs, alterations additions or
improvements in or to any portion of the building including the erection or
operation of any xxxxx, xxxxxxx or sidewalk shed, or in or to the demised
premises or the fixtures, appurtenances or equipment thereof. The provisions of
this article 4 with respect to the making of repairs shall not apply in the case
of fire or other casualty which are dealt with in article 9 hereof.
5. WINDOW CLEANING. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned from the outside in violation
of Section 202 of the New York Labor Law or any other applicable law or any
other applicable law or of the Rules of
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the Broad of Standards and Appeals, or of any other Board of body having or
asserting jurisdiction.
6. REQUIREMENTS OF LAW, FIRE INSURANCE. Prior to the commencement of the lease
term, if Tenant is then in possession, and at all times thereafter, Tenant, at
Tenant's sole cost and expense, shall promptly comply with all present and
future laws, orders and regulations of all state, federal, municipal and local
governments, departments, commissions and boards and any direction of any public
officer pursuant to law, and all orders, rules and regulations of the New York
Board of Fire Underwriters or the Insurance Services Office, or any similar body
which shall impose any violation, order or duty upon Owner or Tenant with
respect to the demised premises, and with respect to the portion of the sidewalk
adjacent to the premises, if the premises are on the street level, whether or
not arising out of Tenant's use of manner of use thereof, or with respect to the
building if arising out of Tenant's use or manner of use of the premises or the
building (including the use permitted under the lease). Except as provided in
Article 29 hereof, nothing herein shall require Tenant to make structural
repairs or alterations unless Tenant has by its manner of use of the demised
premises or method or operation therein, violated any such laws, ordinances,
orders, rules, regulations or requirements with respect thereto. Tenant shall
not do or permit any act or thing to be done in or to the demised premises which
is contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner. Tenant shall pay all costs, expenses, fines, penalties or
damages, which may be imposed upon Owner by reason of Tenant's failure to comply
with the provisions of this article. If the fire insurance rate shall, at the
beginning of the lease or at any time thereafter, be higher than it otherwise
would be, then Tenant shall reimburse Owner, as additional rent hereunder, for
that portion of all fire insurance premiums thereafter paid by Owner which shall
have been charged because of such failure by Tenant, to comply with the terms of
this article. In any action or proceeding wherein Owner and Tenant are parties,
a schedule or "make-up" of rate for the building or demised premises issued by a
body making fire insurance rates applicable to said premises shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rate then applicable to said premises.
7. SUBORDINATION. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be selfoperative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request within ten
(10) business days.
8. TENANT'S LIABILITY INSURANCE PROPERTY LOSS, DAMAGE, INDEMNITY. Owner or its
agent shall not be liable for any damage to property of Tenant or of others
entrusted to employees of the building, nor for loss or damage to any property
of Tenant by theft or otherwise, nor for any injury of damage to persons or
property resulting from any cause of whatsoever nature, unless caused by or due
to the negligence of Owner, its agents, servants or employees. Owner or its
agents will not be liable for any such damage caused by other tenants or persons
in, upon or
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about said building or caused by operations in construction of any private,
public or quasi public work. Tenant agrees, at Tenant's sole cost and expense,
to maintain general public liability insurance in standard form in favor of
Owner and Tenant against claims for bodily injury or death or property damage
occurring in or upon the demised premises, effective from the date Tenant enters
into possession and during the term of this lease. Such insurance shall be in an
amount and with carriers acceptable to the Owner. Such policy or policies shall
be delivered to the Owner. On Tenant's default in obtaining or delivering any
such policy or policies or failure to pay the charges therefor, Owner may secure
or pay the charges for any such policy or policies and charge the Tenant as
additional rent therefor. Tenant shall indemnify and save harmless Owner against
and from all liabilities, obligations, damages, penalties, claims, costs and
expenses for which Owner shall not be reimbursed by insurance, including
reasonable attorneys fees, paid, suffered or incurred as a result of any breach
by Tenant, Tenant's agent, contractors, employees, invitees, or licensees, of
any covenant on condition of this lease, or the carelessness, negligence or
improper conduct of the Tenant. Tenant's liability under this lease extends to
the acts and omissions of any subtenant, and any agent contractor, employee,
invitee or licensee of any subtenant. In case any action or proceeding is
brought against Owner by reason of any such claim, Tenant, upon written notice
from Owner, will, at Tenant's expense, resist or defend such action or
proceeding by Counsel approved by Owner in writing, such approval not to be
unreasonably withheld.
9. DESTRUCTION, FIRE AND OTHER CASUALTY. (a) If the demised premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give immediate
notice thereof to Owner and this lease shall continue in full force and effect
except as hereinafter set forth. (b) If the demised premises are partially
damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent, until
such repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly usable by
fire or other casualty, then the rent shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the
premises shall have been repaired and restored to substantially the same
condition as existed when Owner originally delivered possession of the Premises
to Tenant by Owner, subject to Owner's right to elect not to restore the same as
hereinafter provided. (d) If the demised premises are rendered wholly unusable
for Tenant's use and business and the Premises cannot be restored within 180
days of the casualty, or (whether or not the demised premises are damaged in
whole or in part) if the building shall be so damaged that Owner shall decide to
demolish it or to rebuilt it, then, in any of such events, Owner or Tenant may
elect to terminate this lease by written notice to the other given within 90
days after such fire of casualty upon the serving of such notice the term of
this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to Owner's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Unless Owner shall serve a termination
notice as provided for herein, Owner shall make the repairs and restorations
under the conditions of (b) and (c) hereof, with all reasonable expedition
subject to delays due to
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adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the premises as promptly as reasonable possible,
all of Tenant's salvageable inventory and movable equipment, furniture, and
other property. Tenant's liability for rent shall resume five (5) days after
written notice from Owner that the premises are substantially ready for Tenant's
occupancy. (e) Nothing contained hereinabove or anywhere else in this Lease
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. 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 extend
permitted by law, Owner 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 policy can be obtained without additional premiums. Tenant acknowledges
that Owner will not carry insurance on Tenant's furniture and/or furnishings or
any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Owner will not be obligated to repair any damage thereto or
replace the same. (f) Tenant hereby waives the provisions of Section 227 of the
Real Property Law and agrees that the provisions of this article shall govern
and control in lieu thereof.
10. EMINENT DOMAIN. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease, except Tenant
may make an independent claim to the condemning authority for the value of
Tenant's moving expenses, personal property, trade fixtures and equipment.
11. ASSIGNMENT, MORTGAGE, ETC. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and assigns
expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, under-letting, occupancy or collection shall be deemed a waiver of
the covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to nay further assignment
or underletting.
12. ELECTRIC CURRENT. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in
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Owner's opinion, reasonably exercised, will overload such installations or
interfere with the use thereof by other tenants of the building. The change at
any time of the character of electrical service shall in no wise make Owner
liable or responsible to Tenant, for any loss, damages or expenses which Tenant
may sustain.
13. ACCESS TO PREMISES. Upon reasonable notice, Owner or Owner's agents shall
have the right (but shall not be obligated) to enter the demised premises in any
emergency at any time, and, at other reasonable times, to examine the same and
to make such repairs, replacements and improvements as Owner may deem necessary
and reasonably desirable to any portion of the building or which Owner may elect
to perform, in the premises, following Tenant's failure to make repairs or
perform any work which Tenant is obligated to perform under this lease, or for
the purpose of complying with laws, regulations and other directions of
governmental authorities. Tenant shall permit Owner to use and maintain and
replace pipes and conduits in and through the demised premises and to erect new
pipes and conduits therein, Owner may, during the progress of any work in the
demised premises, take all necessary materials and equipment into said premises
without the same constituting an eviction nor shall the Tenant be entitled to
any abatement of rent while such work is in progress nor to any damages by
reason of loss or interruption of business or otherwise. Throughout the term
hereof Owner shall have the right, upon notice to Tenant, to enter the demised
premises at reasonable hours for the purpose of showing the same to prospective
purchasers or mortgages of the building, and during the last six months of the
term for the purpose of showing the same to prospective tenants and may, during
said six months period, place upon the premises the usual notice "To Let" and
"For Sale" which notices Tenant shall permit to remain thereon without
molestation. If during the last month of term Tenant shall have removed all or
substantially all of Tenant's property therefrom, Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligations hereunder.
Owner shall have the right at any time, without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets, or other public parts of the building and
to change the name, number or designation by which the building may be known.
Owner shall indemnify Tenant for loss or damage from Owner's negligence with
respect to access to the premises.
14. VAULT. Vault Space, Area: No vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder, anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this lease to the contrary not withstanding..
Owner makes no representation as to the locations of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space ore area be diminished or required by
any federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall revocation, diminution or requisition
be deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by tenant.
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15. OCCUPANCY: Tenant will not at any time use or occupy the demised premises in
violation of, Articles 2 or 37 hereof, or of the certificate of occupancy issued
for the building of which the demised premise are a part. Tenant has inspected
the premises and accepts them as is, subject to the riders annexed hereto with
respect to Owner's work, if any. In any event, Owner makes no representation as
to the condition of the premises and Tenant agrees to accept the same subject to
violations whether or not of record.
16. BANKRUPTCY: (a) Anything elsewhere in this lease to the contrary not
withstanding, this lease may be canceled by Landlord by the sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events; (1) the commencement of a case in bankruptcy or under
the laws of any state naming Tenant as the debtor Tenant shall not be deemed in
default if a case or proceeding in bankruptcy or pursuant to any state
debtor/creditor statute is dismissed within sixty (60) days of commencement of
such case proceedings. or (2), the making by Tenant of an assignment or any
other arrangement for the benefit of creditors under any state statute. Neither
Tenant nor any person claiming through or under Tenant, or by reason of any
statue or order of court, shall thereafter be entitled to possession of the
premises demised but shall forthwith quit and surrender the premises. If this
lease shall be assigned in accordance with its terms, the provision of this
Article 16 shall be applicable only to the party then owning Tenant's interest
in this lease. (b) It is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
term demised and the fair and reasonable rental value of the demised premises
for the same period. In the computation of such damages the difference between
any installment of rent becoming due hereunder after the date of termination and
the fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be re-let by the Owner for the unexpired term of said leas, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such relenting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for an
obtain as liquidated damages by reason of such termination, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceeding in which, such damages are to be proved, whether or
not such amount be greater, equal to, or less than the amount of the difference
referenced to above.
17. DEFAULT: (1) If Tenant defaults in fulfilling any of the covenant of this
lease other than the covenants for the payment of rent or additional rent; or of
the demised premises become vacant or deserted; or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demise premises shall be taken or occupied by someone other than Tenant; or
if this lead be rejected under Section 365 of Title II of the U.S. Code
(Bankruptcy Code); or if Tenant shall fail to move into or take possession of
the premises within fifteen (15)
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days after the commencement of the term of this lease, of which fact Owner shall
be sole judge.; then, if any one or more of such events, upon Owner serving a
written twenty (20) days notice upon Tenant specifying the nature of said
default and upon the expiration of said 20 days, if Tenant shall have failed to
comply with or remedy such default or if the said default or omission complained
of shall be of a nature that the same cannot be complete cured or remedied with
said 20 days period, and if Tenant shall not have diligently commenced curing
such default with such 20 day period, and shall not thereafter with reasonable
diligence and in good faith proceed to remedy or cure such default, then Owner
may serve a written three (3) days notice of cancellation of this lease upon
Tenant, an upon the expiration of said three (3) days, this lease and the term
thereunder shall end and expire as fully and completely as if the expiration of
such three (3) day period were the day herein definitely fixed for the end and
expiration of this lease and the term thereof and Tenant shall then quit and
surrender the demised premises to the Owner but Tenant shall remain liable as
hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid; or it Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment required and
Tenant fails to cure such default within three (3) days after notice of such
default from owner, then and in any such events Owner may without notice,
re-enter the demised premises either by force or otherwise, and dispossess
Tenant by summary proceedings or otherwise and the legal representative of
Tenant or other occupant of demised premises and remove their effects and hold
the premises as if this lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal proceedings to
that end.
18. REMEDIES OF OWNER AND WAIVER OF REDEMPTION. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent, and additional rent, shall become due thereupon and be paid up to the
time of such reentry, dispossess and/or expiration. (b) Owner may re-let the
premises or any part or parts thereof, either in the name of Owner or otherwise,
for a term or terms, which may at Owner's option be less than or exceed the
period which would otherwise have constituted the balance of the terms on this
lease and may grant concessions or free rent or charge a higher rental than that
in this lease, and/or (c) Tenant or the legal representative of Tenant shall
also pay Owner as liquidated damages for the failure of Tenant to observe and
perform said Tenant's covenants herein contained, any deficiency between the
rent hereby reserved and/or covenanted to be paid and the net amount, if any, of
the rents collected on account of the subsequent lease or leases of the demised
premises for each month of the period which would otherwise have constituted the
balance of the term of this lease. The failure of Owner to re-let the premises
or any part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said
deficiency such expenses as Owner may incur in connection with re-letting, such
as legal expenses, attorneys' fees, brokerage, adverting and for keeping the
demised premises in good order or for preparing the same for re-letting. Any
such liquidated damages shall be paid in monthly installments by Tenant on the
rent day specified in this lease. Owner, in putting the demised premises in good
order or preparing the same for re-rental may, at Owner's option, make such
alterations, repairs, replacements, and/or decorations in the demised premises
as Owner, in Owner's sole judgment, considers advisable and necessary for the
purpose of re-letting the
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demised premises, and the making of such alterations, repairs, replacements,
and/or decorations shall not operate or be construed to release Tenant from
liability. Owner shall in no event be liable in any way whatsoever for failure
to re-let the demised premises, or in the event that the demised premises are
re-let, for failure to collect the rent thereof under such re-letting, and in no
event shall Tenant be entitled to receive any excess, if any, of such net rent
collected over the sums payable by Tenant to Owner hereunder. In the event of a
breach or threatened breach by Tenant or any of the covenants or provisions
hereof, Owner shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if re-entry, summary proceedings and other
remedies were not herein provided for. Mention in this lease of any particular
remedy, shall not preclude Owner from any other remedy, in law or in equity.
Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws.
19. FEES AND EXPENSES. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, then,
unless otherwise provided elsewhere in this lease, Owner may immediately or at
any time thereafter and without notice perform the obligation of Tenant
thereunder, and if Owner, in connection therewith or in connection with any
default by Tenant in the covenant to pay rent hereunder, makes any expenditures
or incurs any obligations for the payment of money, including but not limited to
attorney's fees, instituting, prosecuting or defending any actions or
proceeding, such sums so paid or obligations incurred with interest and costs
shall be deemed to be additional rent hereunder and shall be paid by Tenant to
Owner within five (5) days of rendition of any xxxx or statement to Tenant
therefor, and if Tenant's lease term shall have expired at the time of making of
such expenditures or incurring of such obligations, such sums shall be
recoverable by Owner as damages.
20. NO REPRESENTATIONS BY OWNER. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rents,
leases, expenses of operation, or any other matter or thing affecting or related
to the premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as otherwise
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition, and
agrees to take the same "as is" and acknowledges that the taking of possession
of the demised premises by Tenant shall be conclusive evidence that the said
premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as to
latent defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
21. END OF TERM. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear expected, and Tenant shall
remove all its property. Tenant's obligation
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to observe or perform this covenant shall survive the expiration or other
termination of this lease. If the last day of the term of this lease or any
renewal thereof, falls on Sunday, this lease shall expire at noon on the
preceding Saturday unless it be a legal holiday in which case it shall expire at
noon on the preceding business day.
22. QUIET ENJOYMENT. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 33 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
23. FAILURE TO GIVE POSSESSION. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof because of
the holding-over or retention of possession of any tenant, undertenant or
occupants, or if the premises are located in a building being constructed,
because such building has not been sufficiently completed to make the premises
ready for occupancy or because of the fact that a certificate of occupancy has
not been procured or for any other reason, Owner shall not be subject to any
liability for failure to give possession on said date and the validity of the
lease shall not be impaired under such circumstances, nor shall the same be
construed in any wise to extend the term of this lease, but the rent payable
hereunder shall be abated (provided Tenant is not responsible for the inability
to obtain possession) until after Owner shall have given Tenant written notice
that the premises are substantially ready for Tenant's occupancy. If permission
is given to Tenant to enter into the possession of the demised premises or to
occupy premises other than the demised premises prior to the date specified as
the commencement of the term of this lease, Tenant covenants and agrees that
such occupancy shall be deemed to be under all the terms, covenants, conditions
and provisions of this lease, except as to the covenant to pay rent. The
provisions of this article are intended to constitute "an express provision to
the contrary" within the meaning of Section 223-a of the New York Real Property
Law.
24. NO WAIVER. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed in acceptance of a
surrender of said premises and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No employee of Owner or Owner's agent
shall have
-10-
any power to accept the keys of said premises prior to the termination of the
lease and the delivery of keys to any such agent or employee shall not operate
as a termination of the lease or a surrender of the premises.
25. WAIVER OF TRAIL BY JURY. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall and they hereby do waive trail
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
in any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use of or occupancy of
said premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any summary proceeding
for possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding except Tenant may
interpose statutory, mandatory counterclaims.
26. INABILITY TO PERFORM. This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or delayed from so doing by reason
of strike or labor troubles, government preemption in connection with a National
Emergency or by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the conditions of
the supply and demand which have been or are affected by war or other emergency,
or when, in the judgment of Owner, temporary interruption of such services is
necessary by reason of accident, mechanical breakdown, or to make repairs,
alterations or improvements.
27. BILLS AND NOTICES. Except as otherwise in this lease provided, a xxxx,
statement, notice or communication which Owner may desire or be required to give
to Tenant, shall be deemed sufficiently given or rendered if, in writing,
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant at the building of which the demised premises form a part or at the
last known residence address or business address of Tenant or left at any of the
aforesaid premises addressed to Tenant, and the time of the rendition of such
xxxx or statement and or the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant, mailed, or left at
the premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
28. WATER CHARGES. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory purposes (of which fact Tenant constitutes Owner
to be the sole judge) Owner may install a water meter and thereby measures
Tenant's water consumption for all purposes. Tenant shall pay Owner for the cost
of the meter and the cost of the installation thereof and throughout the
duration of Tenant's occupancy Tenant shall keep said meter and installation
equipment in good working order and repair at Tenant's own cost and expense.
Tenant agrees to
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pay for water consumed, as shown on said meter as and when bills are rendered.
Tenant covenants and agrees to pay the sewer rent, charge or any other tax,
rent, levy or charge which now or hereafter is assessed, imposed or a lien upon
the demised premises or the realty of which they are part pursuant to law, order
or regulation made or issued in connection with the use, consumption,
maintenance or supply of water, water system or sewage or sewage connection or
system. The xxxx rendered by Owner shall be payable by Tenant as additional
rent. Independently of and in addition to any of the remedies reserved to Owner
hereinabove or elsewhere in this lease, Owner may xxx for and collect any monies
to be paid by Tenant or paid by Owner for any of the reasons or purposes
hereinabove set forth.
See Attached Rider, Xxxxxxxxx 00
00. SPRINKLERS. Anything else where in this lease to the contrary
notwithstanding, if the New York Board of Fire Underwriters or the Insurance
Services Office or any bureau, department or official of the federal, state or
city government require or recommend the installation of a sprinkler system by
reason of Tenant's business, or the location of partitions, trade fixtures, or
other contents of the demised premises, Tenant shall, at Tenant's expense,
promptly make such sprinkler system installations, changes, modifications,
alterations, and supply additional sprinkler heads or other equipment as
required whether the work involved shall be structural or non-structural in
nature.
30. HEAT, CLEANING. As long as Tenant is not in default under any of the
covenants of this lease, Owner shall, if and insofar as existing facilities
permit furnish heat to the demised premises, when and as required by law, on
every day from 10:00 a.m. to 8:00 p.m. Tenant shall at Tenant's expense, keep
demised premises clean and in order, to the satisfaction to Owner, and if
demised premises are situated on the street floor, Tenant shall, at Tenant's own
expense, make all repairs and replacements to the sidewalks and curbs adjacent
thereto, and keep said sidewalks and curbs free from snow, ice, dirt and
rubbish. Tenant shall pay to Owner the cost of removal of any of Tenant's refuse
and rubbish from the building. Bills for the same shall be rendered by Owner to
Tenant at such times as Owner may elect and shall be due and payable when
rendered, and the amount of such bills shall be deemed to be, and be paid as,
additional rent. Tenant shall, however, have the option of independently
contracting for the removal of such rubbish and refuse in the event that Tenant
does not wish to have same done by employees of Owner. Under such circumstances,
however, the removal of such refuse and rubbish by others shall be subject to
such rules and regulations as, in the judgment of Owner, are necessary for the
proper operation of the building.
31. SECURITY. Tenant has deposited with Owner the sum of $38,000 as security for
the faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including
-12-
but not limited to, and damages or deficiency in the re-letting of the premises,
whether such damages or deficiency accrued before or after summary proceedings
or other re-entry by Owner. In the event that Tenant shall fully and faithfully
comply with all of the terms, provisions, covenants and conditions of this
lease, the security shall be returned to Tenant within sixty (60) days after the
date fixed as the end of the Lease and after delivery of entire possession of
the demised premises to Owner. In the event of a sale of the land and building
or leasing of the building, of which the demised premises form a part, Owner
shall have the right to transfer the security to the vendee or lessee and Owner
shall thereupon be released by Tenant from all liability for return of such
security, and Tenant agrees to look to the new Owner solely for the return of
said security; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Owner. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Owner nor its
successors or assigns shall be bound by such assignment, encumbrance, attempted
assignment or attempted encumbrance.
See Attached Rider, Xxxxxxxxx 00
00. CAPTIONS. The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provision thereof.
33. DEFINITIONS. The term "Owner" as used in this lease means only the Owner, or
the mortgagee in possession, for the time being of the land and building (or the
Owner of a lease of the building or of the land and building) of which the
demised premises form a part, so that in the event of any sale or sales of said
land and building or of said lease, or in the event of a lease of said building,
or of the land and building, the said Owner shall be and hereby is entirely
freed and relieved of all covenants and obligations of Owner hereunder, and it
shall be deemed and construed without further agreement between the parties of
their successors in interest, or between the parties and the purchaser, at any
such sale, or the said lessee of the building, or of the land and building, that
the purchaser or the lessee of the building has assumed and agreed to carry out
any and all covenants and obligations of Owner hereunder. The words "re-enter"
and "re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "Business days" as used in this lease shall exclude Saturdays
(except such portion thereof as is covered by specific hours in Article 30
hereof), Sundays and all days designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to H V A C service.
34. ADJACENT EXCAVATION -- SHORING. If an excavation shall be made upon land
adjacent to the demised premises, or shall be authorized to be made, Tenant
shall afford to the person causing of authorized to cause such excavation,
license to enter upon the demised premises for the purpose of doing such work as
said person shall deem necessary to preserve the wall or the building of which
demised premises form a part from injury or damage and to support the same by
proper foundations without any claim for damages or indemnity against Owner, or
diminution or abatement of rent.
-13-
35. RULES AND REGULATIONS. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with the
Rules and Regulations and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within ten (10) days
after the giving of notice thereof. Nothing in this lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against any
other tenant and Owner shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees.
36. GLASS. Owner shall replace, at the expense of Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Owner may insure, and keep insured, at Tenant's expense, all plate and
other glass in the demised premises for and in the name of Owner. Bills for the
premiums therefor shall be rendered by Owner to Tenant at such times as Owner
may elect, and shall be due from, and payable by, Tenant when rendered, and the
amount thereof shall be deemed to be, and be paid as, additional rent.
37. PORNOGRAPHIC USES PROHIBITED. Tenant agrees that the value of the demised
premises and the reputation of the Owner will be seriously injured if the
premises are used for any obscene or pornographic purposes or any sort of
commercial sex establishment. Tenant agrees that Tenant will not bring or permit
any obscene or pornographic material on the premises, and shall not permit or
conduct any obscene, nude, or semi-nude live performances on the premises, nor
permit use of the premises for nude modeling, rap sessions, or as a so-called
rubber goods shops, or as a sex club of any sort, or as a "massage parlor."
Tenant agrees further that Tenant will not permit any of these uses by any
sublessee or assignee of the premises. This Article shall directly bind any
successors in interest to the Tenant, Tenant agrees that if at any time Tenant
violates any of the provisions of this Article, such violation shall be deemed a
breach of a substantial obligation of the terms of this lease and objectionable
conduct. Pornographic material is defined for purposes of this Article as any
written or pictorial matter with prurient appeal or any objects of instrument
that are primarily concerned with lewd or prurient sexual activity. Obscene
material is defined here as it is in Penal law ss.235.00.
38. ESTOPPEL CERTIFICATE. Owner or Tenant, at any time, and from time to time,
upon at least 10 days prior notice by the other shall execute, acknowledge and
deliver to the other and/or to any other person, firm or corporation specified
by the other a statement certifying that this lease is unmodified and in full
force and effect (or, if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), stating the dates
which the rent and additional rent have been paid, and stating whether or not
there exists any defaults by the other under this lease, and, if so, specifying
each such default.
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39. SUCCESSORS AND ASSIGNS. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
Witness for Owner 000 XXXXXX XXXXXX CORP.
By:
-------------------------- ---------------------------
Corporate Seal:
Witness for Tenant BLUE FISH CLOTHING, INC.
By:
------------------------- ---------------------------
Corporate Seal:
-00-
XXXXXXXXXXXXXXX
XXXXXXXXX XXXXX
XXXXX XX XXX XXXX, SS.:
COUNTY OF _____________
On this ____ day of __________, 19__ before me personally came
________________ ______________ to me known, who being duly sworn, did depose
and say that he resides ______ _______________________________ in
____________________ that he is the _____________ of the corporation described
in and which executed the foregoing instrument, as OWNER; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
___________________________
INDIVIDUAL OWNER
STATE OF NEW YORK, SS.:
COUNTY OF _____________
On this ____ day of __________, 19__ before me personally came
________________ ______________ to me known to be the individual
_______________________ described in and who, as OWNER, executed the foregoing
instrument and acknowledged to me that ______ _______________ he executed same.
___________________________
CORPORATE TENANT
STATE OF NEW YORK, SS.:
COUNTY OF _____________
On this ____ day of __________, 19__ before me personally came
________________ ______________ to me known, who being duly sworn, did depose
and say that he resides ______ _______________________________ in
____________________ that he is the _____________ of the corporation described
in and which executed the foregoing instrument, as TENANT; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that he signed his name thereto by like order.
____________________________
INDIVIDUAL TENANT
STATE OF NEW YORK, SS.:
COUNTY OF _____________
On this ____ day of __________, 19__ before me personally came
________________ ______________ to me known to be the individual
_______________________ described in and who, as OWNER, executed the foregoing
instrument and acknowledged to me that ______ _______________ he executed same.
____________________________
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RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 35.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than for ingress to and egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designed for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any tenant or by jobbers, or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and safeguards.
2. If the premises are situated on the ground floor of the building, Tenant
thereof shall further, at Tenant's expense, keep the sidewalks and curb in front
of said premises clean and free from ice, snow, etc.
3. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed.
4. Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the building by reason of noise, odors and/or vibrations
or interfere in any way with other Tenants or those having business therein.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Signs on interior
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any part of the
demised premises or the building of which they form a part. No boring, cutting
or stringing of wires shall be permitted, except with the prior written consent
of Owner, and as Owner may direct. No Tenant shall lay linoleum or other similar
floor covering, so that the same shall come in direct contact with the floor of
the demised premises, and, if linoleum or other similar floor covering is
desired to be used an interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the
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service entrances and corridors, and only during hours and in a manner approved
by Owner. Owner reserves the right to inspect all freight to be brought into the
building and to exclude from the building all freight which violates any of
these Rules and Regulations or the lease of which these Rules and Regulations
are a part.
8. Owner reserves the right to exclude from the building between the hours of 6
P.M. and 8 A.M. and at all hours on Sundays, and holidays all persons who do not
present a pass to the building signed by the Owner. Owner will furnish passes to
persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such person.
9. Owner shall have the right to prohibit any advertising by any Tenant which,
in Owner's opinion, tends to impair the reputation of Owner or its desirability
as a building for stores or offices, and upon written notice from Owner, Tenant
shall refrain from or discontinue such advertising.
10. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable, combustible or explosive fluid, material, chemical or
substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the demised
premises.
11. Tenant shall not place a load on any floor of the demised premises exceeding
the floor load per square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to prescribe the weight and position of
all safes, business machines and mechanical equipment. Such installations shall
be placed and maintained by Tenant at Tenant's expense in setting sufficient in
Owner's judgment to absorb and prevent vibration, noise and annoyance.
GUARANTY
The undersigned Guarantor guarantees to Owner, Owner's successors and
assigns, the full performance and observance of all the agreements to be
performed and observed by Tenant in the attached Lease, including the "Rules and
Regulations' as therein provided, without requiring any notice to Guarantor or
nonpayment or nonperformance, or proof, or notice of demand, to hold the
undersigned responsible under this guaranty, all of which the undersigned hereby
expressly waives and expressly agrees that the legality of this agreement and
the agreements of the Guarantor under this agreement shall not be ended, or
changed by reason of the claims to Owner against Tenant of any of the rights or
remedies given to Owner as agreed in the attached Lease. The Guarantor further
agrees that this guaranty shall remain and continue in full force and effect as
to any renewal, change or extension of the Lease. As a further inducement to
Owner to make the Lease Owner and Guarantor agree that in any action or
proceeding brought by either Owner or the Guarantor against the other on any
matters concerning the Lease or of this guaranty that Owner and the undersigned
shall and do waive trial by jury.
_________________________
Guarantor
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RIDER AGREEMENT TO THE LEASE ("RIDER") DATED
DECEMBER 19, 1996 BY AND BETWEEN
000 XXXXXX XXXXXX CORP. ("OWNER")
AND BLUE FISH CLOTHING, INC. ("TENANT")
R40. This Rider is annexed to and part of the printed form lease by and between
000 Xxxxxx Xxxxxx Corp., as Owner, and Blue Fish Clothing, Inc., as Tenant. In
the event of any conflict between the printed form and this Rider, this Rider
shall control.
R41. This Lease and Rider shall have no force or effect unless and until both
Tenant and Owner sign it and a duly executed counterpart is delivered to each of
the parties or their respective attorney.
R42. BASE RENT: The Base Rent for the demised premises shall be paid as follows:
Monthly
Period Annual Rent Installment
------ ----------- -----------
1/1/97-12/31/97 $228,000.00 $19,000.00
1/1/98-12/31/98 $234,840.00 $19,570.00
1/1/99-12/31/99 $241,885.20 $20,157.10
1/1/2000-12/31/2000 $249,141.75 $20,761.81
1/1/2001-12/31/2001 $256,616.00 $21,384.67
1/1/2002-12/31/2002 $264,314.48 $22,026.20
1/1/2003-12/31/2003 $272,243.91 $22,686.99
1/1/2004-12/31/2004 $280,411.23 $23,367.60
1/1/2005-12/31/2005 $288,823.57 $24,068.63
1/1/2006-12/31/2006 $297,488.28 $24,790.69
R43. SECURITY: Supplementing and modifying paragraph 31, Tenant shall at all
times provide Owner with security in an amount equal to two months' Base Rent in
effect at the time. Owner agrees to maintain the security in an interest-bearing
account. Tenant shall sign all forms required by the bank to deposit the
security in an interest-bearing account.
R44. RENT CONCESSION: Tenant shall receive a rent concession totaling three
months Base Rent as follows: the first month's rental due under this lease shall
be waived. Beginning with the second month of the lease term and for 23 months
thereafter, Tenant's Base Rent shall be reduced by $1,583.33.
R45. ADDITIONAL RENT:
(a) For the purpose of this article, the term "lease year" shall mean
for subparagraph (b) and (d) the period of twelve (12) months from July
1st to June 30th and for subparagraph (e) shall mean the period of
twelve (12) months commencing with the term commencement date and each
successive period of twelve (12) months thereafter during the term. The
term "base year" as applied to real estates taxes, shall mean the City
tax year July 1, 1996 to June 30, 1997 and for fuel oil expenses shall
mean the calendar year 1996.
(b) In the event that the real estate taxes payable with respect to the
building and the land on which it is located, (148 Xxxxxx Street,
sometimes referred to as 000 Xxxxxx Xxxxxx) during any lease year (on a
pro-rated basis for the first and last lease years) shall be greater
than the amount of such taxes due and payable during the base year,
whether by reason of an increase in either the tax rate or the assessed
valuation or by reason of the levy, assessment or imposition of any tax
on real estate as such, not now levied, assessed or imposed or for any
other reason, Tenant shall pay to Owner within thirty (30) days after
notice such tax or installment thereof shall be due and payable, as
additional rent for lease year in which such date occurs, an amount
equal to twenty-one (21%) percent of the difference between the amount
of such tax or installment and the corresponding amount of the base
year. The amount of such taxes actually paid by Owner during the base
year shall determine the amount of additional rent payable under this
paragraph (b) until, as the result of a final determination in legal
proceedings or otherwise, the amount of such taxes shall be reduced. In
the event of such a final determination, the reduced amount of such
taxes shall thereafter determine the amount of additional rent payable
by Tenant pursuant to this paragraph (b), the additional rent
theretofore payable hereunder shall be recomputed on the basis of such
reduction, and Tenant shall pay to the Owner within thirty (30) days
after being billed therefor, any deficiency between the amount or such
additional rent as computed and the amount due as the result of such
recomputation.
(c) If the amount of additional rent payable by term pursuant to the
foregoing paragraph (b) shall be affected by any application filed by
or on behalf of Owner for a reduction in the assessed valuation of the
said building and land or by any proceedings instituted by or on behalf
of Owner in a court of competent jurisdiction for judicial review of
said assessed valuation, Tenant shall pay to Owner, as additional rent
hereunder twenty-one (21%) percent of the reasonable expense (including
reasonable attorney's and appraiser's fees) incurred by Owner in
connection with any such application or proceeding. If, after Tenant
shall have made a payment of additional rent under said paragraph (b)
Owner shall receive a refund of any portion of the real estate taxes on
which such payment shall have been based on the result of any such
application or proceeding, Owner shall pay to Tenant twenty-one (21%)
percent of that refund for the tax year reviewed to the extent Tenant
has made complete payment of its pro rata portion thereof, less any
amount owing by Tenant for expenses in connection therewith as provided
in the preceding sentence provided, however, that such payment to
Tenant shall not exceed the additional rental paid by Tenant for such
year pursuant to paragraph (b)
hereof. Nothing in this paragraph (c) contained shall be deemed or
construed to require Owner to pay to Tenant any portion or a refund of
taxes paid by Owner during the base year.
(d) Tenant shall pay to Owner within thirty (30) days after the date
when the same shall be payable by Owner and as additional rent for the
lease year in which the same shall be so payable, an amount equal to
twenty-one (21%) percent of any assessment or installment thereof for
public betterments or improvements which may be levied upon the said
land and building and which is not deductible from any condemnation
award, provided, however, in no event shall Tenant pay more than .21
times the amount of the assessment or installment times six (6) years
divided by the useful life of the betterments as determined by the
Owner for Internal Revenue Service purposes. Owner shall take benefit
of the provisions of any statute or ordinance permitting any such
assessment to be paid over a period of time and Tenant shall be
obligated to pay only the said percentage of the installments of any
such assessment which shall become due and payable during the term of
this lease.
(e) In the event that the gas expenses incurred by Owner during any
lease year (on a pro-rated basis for the first lease year) shall be
greater than the gas expenses incurred by Owner during the base year,
Tenant will pay to Owner as additional rent for the year in question,
on or before the first day or the month next succeeding the submission
of a xxxx therefor, an amount equal to sixteen (16%) percent of the
increase. Owner, together with such xxxx, shall furnish Tenant with a
summary schedule of such gas expenses for such lease year if there
shall occur therein an increase in gas expenses as aforesaid.
(f) Tenant's obligation to pay additional rent as provided in this
Lease for the final lease year shall survive the expiration of the term
of this Lease, and any additional rent due for any partial year shall
be pro rated.
(g) Notwithstanding the foregoing, after the rendition by the Owner of
the first xxxx for real estate or gas escalation and in each year
thereafter Tenant shall pay the Owner each month one-twelfth (1/12) of
the amount shown due as an estimated payment on account of anticipated
escalations during the then current year. The Owner shall render
appropriate statements of actual escalation at the end of each lease
year. If additional money is owed, Tenant shall promptly pay it, but in
no event less than 5 business days after demand. Any overpayment shall
be credited against estimated escalation payments for the succeeding
lease year except the last year, in which case such credit shall be
paid to Tenant within 60 days after determination thereof..
R46. TIMELY RENT PAYMENT.
(a) Tenant recognizes and agrees that TIME IS OF THE ESSENCE for the
payment of all rents and additional rents that are due pursuant to this
Lease. If Owner fails to receive from Tenant rents or additional rents
by the fifth business day after such payments shall be due, Tenant
shall pay to Owner as additional rent upon demand, a late charge of
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six (6%) percent of the amount of the rents and additional rents due.
Late charges are cumulative. This late charge provision shall not be
interpreted in such a way that will permit Tenant to make late
payments. If payment of the rent or additional rent is not received by
Owner on or before such fifth business day, Tenant shall be in default
under this Lease and shall be subject to the initiation of summary
proceedings and any other remedies available to Owner. Nothing herein
shall be deemed as permission to delay or suspend payment of rent or
additional rent or limit, in any way, the Owner's remedies. In the
event that Tenant gives to the Owner a check for rent or for other
payment due under this Lease and said check is dishonored or otherwise
not paid by the bank upon which it is drawn, Tenant shall pay to Owner
a service charge of $200.00 for each such check that is not paid or is
otherwise not honored.
(b) The word "rent" shall include the monies specifically reserved as
rent, additional rent, other taxes and liens, late charges, service
charges, all costs and expenses and damages which the Owner may suffer
or incur by reason of any default of the Tenant or failure on Tenant's
part to comply with the covenants, terms or conditions of this Lease,
and all other sums of money which by virtue of this Lease shall at any
time or times become due and owing by Tenant to Owner, whether by way
of rent, additional rent, or otherwise.
(c) The receipt by the Owner of any installment of the regular
stipulated rent hereunder or any of said additional rent shall not be a
waiver of any other additional rent then due.
(d) No payment by Tenant or receipt by Owner of a lesser amount than
the base monthly rent and any and all additional rent due and payable
pursuant to this lease, shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be
deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of
such rent or pursue any other remedy provided in this lease or
otherwise.
(e) Acceptance by Owner of a check or checks in payment of any
installment of rent made by any person or corporation other than Tenant
shall not be deemed an acceptance of such person, corporation or other
entity as Tenant nor as a consent or acquiescence to an assignment of
this lease or subletting of the premises nor construed as a waiver by
the Owner.
(f) In addition to all of the Owner's other rights and remedies, if and
so long as Tenant shall, at any time, be in default in the payment to
Owner of two months or more of the Annual Base Rent, Owner shall have
the right to enter the Premises at reasonable hours for the purpose of
showing the same to prospective tenants and may place upon the Premises
the usual "To Let" and "For Sale" which notices Tenant shall permit to
remain without molestation.
R47. HOLDING OVER. Tenant acknowledges that possession of the demised premises
must be surrendered at the expiration or sooner termination of the term of this
Lease. Tenant agrees to
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indemnify and hold the Owner harmless against any and all costs, claims, loss or
liability resulting from delay by Tenant in so surrendering the demised premises
including, without limitation, any claims made by any succeeding Tenant found on
such delay. The parties recognize and agree that the damage to Owner resulting
from any failure by Tenant timely to surrender possession of the demised
premises as aforesaid will be extremely substantial, will exceed the amount of
monthly rent theretofore payable hereunder and will be impossible of accurate
measurement. Tenant therefore agrees that if possession of the demised premises
is not surrendered to Owner within seven (7) days after the date of the
expiration or sooner termination of this Lease, then Tenant agrees to pay Owner
as liquidated damages for each month and for each portion of any month during
which Tenant holds over in the premises after the expiration or termination of
this Lease, a sum equal to two and one-half (2.5) times the average rent and
additional rent which was payable per month under this Lease during the last six
(6) months of the term thereof as well as reasonable costs and attorneys' fees
incurred due to Tenant's failure to timely vacate the demised premises. The
aforesaid provisions of this article shall survive the expiration or sooner
termination of the term of this Lease.
R48. Notwithstanding anything to the contrary provided in this Lease, regardless
of the nature or ground of any summary proceeding brought by Owner to recover
possession of the demised premises, Tenant will not interpose any counterclaim
of whatever nature or description in any such proceeding except that Tenant may
interpose statutory, mandatory counterclaims. Nothing herein shall be deemed to
prohibit Tenant from bringing a separate action against Owner on account of any
claim which Tenant may have against Owner, provided, however, that Tenant agrees
that Tenant, in the prosecution of any such claim shall make no motion or
otherwise request any Court in which such claim is sought to be asserted, to
join any such claim and any proceeding instituted by Owner to recover possession
of the demised premises in any such trial, or make any motion or otherwise seek
to have any such proceeding instituted by Owner and any action or proceeding
commenced by Tenant by reason of such claim of Tenant tried simultaneously in
any court.
R49. Prior to installing new or additional air conditioning unit or units in the
premises, the Tenant shall first obtain the written consent of the Owner, which
Owner agrees to not unreasonably withhold or delay, both parties acknowledging
the landmark status of the building. Tenant understands that the building in
which the premises is located (148 Xxxxxx Street) and 000 Xxxxxx Xxxxxx are
occupied by residential shareholders and occupants. Tenant shall not create any
noise which interferes with the quiet enjoyment of the shareholders and
occupants of 000 Xxxxxx Xxxxxx Corp. nor produce any odors or light that
negatively effect said shareholders or occupants. Any air-conditioning equipment
installed by Tenant must be located, installed and maintained so as not to
create any noise, heat or vibrations that interfere with any shareholder's or
occupant's use or enjoyment of their Unit. Notwithstanding anything to the
contrary provided in the Lease, Tenant shall pay directly to Consolidated Edison
for all electrical current consumed in the operation thereof. In the event such
unit or units utilize circulating water, they shall be equipped with an approved
water conserving device and in connection therewith, Tenant shall install and
maintain in good working order, at its own cost and expense, a water meter which
shall meter all make-up water used in such air conditioning equipment and shall
pay for such water as per meter reading and in addition thereto, sewerage or any
other charge, tax or levy
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which now or hereafter is imposed by the City of New York in connection with
said use of water. Any charge for water consumed as herein provided, shall be in
addition to any other such charges as may be specified elsewhere in this Lease
and shall be deemed to be additional rent and payable as such.
R50. IMPROVEMENTS AND ALTERATIONS. With reference to alterations to be made
pursuant to Paragraph Third hereof, Tenant agrees to use licensed electrical and
plumbing contractors.
(a) Tenant shall obtain Owner's prior written consent before making
non-structural alterations, and to other minor installations, additions
or improvements which Owner shall not unreasonably withhold or delay.
Owner shall not unreasonably withhold its consent to nonstructural
Tenant Alterations which do not impair the functioning of any Building
equipment, violate any legal requirements or insurance requirements,
impair the character, appearance, usefulness or rentability of the
Building or any part thereof, temporarily or permanently weaken or
impair the structure or lessen the value or size of the Premises or the
Building outside of the Premises.
(b) Tenant shall obtain Owner's prior written consent before making
structural alterations and/or installations, additions or improvements
not of a minor nature ("structural alterations"). The denial by the
Owner of consent to structural alterations shall not be deemed to be
unreasonable. Tenant, at its own cost and expense, shall submit to
Owner for approval, plans and specifications regarding such
alterations, and Tenant shall not process any plans for the Department
of Building's approval until Owner approves them. If Owner consents, in
writing, to said structural alterations, Owner agrees to cooperate with
Tenant on the signing of necessary forms and applications for the
Department of Buildings or similar agency.
(c) Tenant agrees to and hereby does indemnify and save harmless Owner
against and from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses which may be imposed upon, or
incurred by or asserted against the Owner, resulting from or by reason
of, the making of any installations, additions, improvements or
alterations by Tenant. In the event any action or proceeding is brought
against the Owner by reason of any such claim, Owner shall notify
Tenant thereof in writing, and Tenant shall, upon Owner's demand,
resist or defend such action in the name of Owner at the reasonable
cost and expense of Tenant with counsel of Owner's choice.
(d) Tenant shall cause each contractor employed by Tenant to carry
contractor's liability coverage in limits of at least $1,000,000.00
which limits shall include completed operations for a one-year period
and, in addition, shall carry statutory workmen's compensation and
coverage.
(e) The Owner shall not be liable for any labor or materials furnished
or to be furnished to Tenant on credit, and no mechanic's or other lien
for any such labor or materials shall attach to, or affect the estate
or interest of the Owner in and to the Leased
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Premises. Whenever any mechanic's lien shall have been filed against
the Leased Premises based upon any act or interest of the Tenant or of
anyone claiming through the Tenant, or if any security agreement shall
have been filed for or affecting any materials, machinery, or fixtures
used in the Tenant's alterations, the construction, repair or operation
thereof or annexed thereto by the Tenant, the Tenant shall immediately
take such action by bonding, deposit, or payment as will remove the
lien or security agreement. If Tenant has not removed the lien within
thirty (30) days after notice to the Tenant, the Owner may pay the
amount of such mechanic's lien or security agreement or discharge the
same by deposit, and the amounts paid or deposited, with interest
thereon, shall be deemed additional rent reserved under this Lease, and
shall be payable forthwith with interest at the rate of two percent
(2%) in excess of the then prime rate of Citibank, N.A., from the date
of such advance, and with the same remedies to the Owner as in the case
of default in the payment of rent as in this Lease provided.
(f) (i) Tenant, at its own cost and expense, shall obtain Building
Department and other governmental agency permits that may be required
for any of Tenant's Alterations.
(ii) Tenant shall not commence alterations or demolition until
delivery to the Owner of written permit from the Building Department or
other such governmental agency permits as may be required for Tenant's
alterations.
(g) All alterations, replacements, additions or improvements (including
air conditioning equipment and ducts, plumbing, electrical
installations, meter and gauges, paneling, partitions, railings and the
like), except movable fixtures, shall become the property of the Owner
except that Owner may elect to demand the removal of any or all of the
improvements by Tenant upon no less than thirty (30) days' notice
before the end of the term of this Lease, in which event Tenant shall
remove them before the last day of the term of the Lease. Any removable
fixtures remaining after the Tenant has vacated become the property of
the Owner.
(h) All work performed by Tenant shall be done in a manner which will
not unreasonably interfere with or disturb other Tenants or occupants
of the building. Such work shall only be performed during the hours of
8:00 a.m. to 6:00 p. m. Monday through Friday and 9:00 a. m. to 5:00 p.
m. Saturday.
(i) Notwithstanding anything heretofore set forth, Tenant covenants and
agrees at or before the end of the term of this Lease to repair all
injury done by the installation or removal of furniture, fixtures or
property and at the expiration of the demised term, or at the sooner
termination thereof, to surrender and yield up to Owner the said
premises and improvements with the appurtenances erected thereon or any
part thereof in good order and condition, ordinary wear and tear
excepted; and in no event shall Tenant make any charge to or claim for
compensation, or otherwise, from Owner notwithstanding that any such
improvements or appurtenances shall have been constructed, erected or
installed by Tenant.
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(j) Upon demand, Tenant shall pay all of Owner's costs relating to the
consideration, approval, performance, supervision and final approval by
the City or any governmental agency of Tenant's Alterations including,
without limitation, the fees of the Owner's Professionals, including
Owner's architect, engineer and attorney. Prior to consideration of
Tenant's Alterations, Owner, at Owner's option, may demand that Tenant
place in escrow with Owner's attorney sufficient monies to assure
payment of Owner's expenses. All Alterations must be performed at times
and in a manner satisfactory to Owner, in its discretion, at Tenant's
sole cost and expense, in a safe, careful and first-class manner,
without injury to the Premises or the Building, expeditiously, using
new first class materials and in compliance with approved Tenant's
Plans and all legal or insurance requirements without creating any
labor dispute with other workers in the Building and without causing
any lien. Tenant, at its expense, shall immediately correct, to Owner's
satisfaction, any damage due to the making of any of Tenant's
Alterations and any Tenants Alterations that do not comply with this
Lease. Tenant shall provide to Owner, upon completion of any Tenant
Alterations (and for initial Alterations prior to Tenant's occupancy of
the Premises) evidence of compliance with the Legal and Insurance
Requirements satisfactory to Owner.
(k) Subject to the terms and conditions set forth in this Lease, Owner
approves Tenant's alterations as set forth in Exhibit "B" attached
hereto and made a part hereof.
R51. Tenant, at its own cost and expense, shall install and maintain in good
working order three (3) smoke detectors and three (3) fire extinguishers in the
ground floor store of the demised premises and three (3) smoke detectors and
three (3) fire extinguishers in the basement. Tenant shall confer with Owner
regarding both the smoke detectors and fire extinguishers to be installed as
well as the place and manner of installations.
R52. SUBLET/ASSIGNMENT.
(a) Except as specifically set forth in Paragraph 52 hereof, Owner may,
in connection with any proposed assignment or subletting or any part
thereof or any mortgage, pledge or encumbrance, withhold its consent
for any or no reason, or may condition its consent on such terms as
Owner may deem appropriate, in its discretion. Tenant shall pay Owner's
processing fees and professional fees and disbursements in connection
therewith, on demand. If Tenant charges or receives any rent or other
monies from an assignee or subtenant in excess of the amount charged to
Tenant as set forth in this Lease, Tenant shall pay Owner fifty (50%)
percent of said rent or monies as additional rent under this Lease. In
the event said rent or monies are not paid to Owner, Owner may, in
addition to any other remedies Owner has, at its option, terminate this
Lease and/or collect said rent or monies directly from the assignee or
subtenant.
(b) Under no circumstances shall Tenant rent, sublet or allow the
demised premises to be used for filming, photography "shoots," parties
or openings.
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(c) Owner shall not unreasonably withhold its consent to an assignment
of this lease or to a subletting by Tenant of all of the Premises for a
term equal to the balance of the Term, less one day, on the following
terms and conditions.
(i) At least 90 days prior to any proposed assignment or
sublease, Tenant shall submit to Owner a statement containing
the name and address of the proposed assignee or subtenant and
all of the principal terms and conditions of the proposed
assignment or sublease including, but not limited to, the
proposed commencement and expiration dates of the sublease,
the nature of the proposed assignee's or subtenant's business,
the prior two (2) year history of the proposed assignee or
subtenant and its principals, together with satisfactory proof
of financial responsibility and personal references to
substantiate the required financial statements and such
financial and other information as Owner may request.
(ii) Owner shall not be deemed unreasonable in withholding its
consent to any sublease or assignment if Owner determines, in
Owner's discretion, that:
(1) the character, reputation or nature of the
business of the proposed assignee or subtenant is not
in keeping with that of the Building or its
tenancies;
(2) Tenant listed or publicly advertised the Premises
for subletting or assignment, whether through a
broker or otherwise, at a rental rate that is less
than the rent payable hereunder or less than the rent
which Owner is offering to lease comparable space in
the Building; but Tenant may negotiate and consummate
a sublease or assignment at a lesser rate of rent
insofar as permitted under the provisions of this
Article;
(3) the proposed occupancy may impose an extra burden
on the Building's systems or Building's services;
(4) the proposed sublease fails to prohibit any
further assignment or subletting;
(5) Tenant is in default under this Lease either at
the time Owner's consent to such subletting or
assignment is requested or at the commencement of any
proposed sublease or effective date of any
assignment;
(6) Tenant shall fail to reimburse Owner for Owner's
costs incurred in connection with said sublease or
assignment, including, without limitation, Owner's
professional's fees and disbursements, investigation
as to the acceptability of a proposed subtenant or
assignee and the preparation and review of documents
and plans relating to such transaction;
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(7) the proposed subtenant or assignee (or related
corporation or other entity) is a tenant of other
space in the Building or is then negotiating with
Owner to rent space in the Building;
(8) the proposed subtenant or assignee has diplomatic
or sovereign immunity or is not subject to service of
process in or to the jurisdiction of the courts of
New York State;
(9) the proposed assignee fails to deliver to Owner a
limited personal guaranty and guaranty of completion
executed by an individual of a character and
financial worth reasonably acceptable to Owner,
guaranteeing to Owner the performance of all the
terms and conditions of this Lease by the proposed
assignee;
(10) the proposed subtenant or assignee (or any
principal thereof) has been indicted for any crime;
(11) the proposed subtenant or assignee has not been
engaged in business for at least two (2) years;
(12) the proposed subtenant or assignee does not have
a net worth of at least five (5) times the Annual
Base Rent for the last year of the Term, or (ii)
$200,000.00, as set forth on its latest audited
financial statement prepared by a certified public
accountant in accordance with generally accepted
accounting principles; or
(13) Tenant fails to deliver to Owner the information
and documents required by Paragraph 52 or the form
and substance of the assignment or sublease and all
ancillary documents shall not have been approved by
Owner.
(iii) Tenant shall, at least thirty (30) days prior to the
effective date thereof, deliver to Owner a fully executed
counterpart of the assignment or sublease and all ancillary
documents thereto, in form and substance satisfactory to the
Owner, and in which, in the case of an assignment, the
assignee assumes Tenant's obligations under this Lease.
(iv) Upon Tenant's receipt of an offer from a third party for
the purchase of any interest of Tenant in the Lease,
including, without limitation, any assignment or sublease (as
evidenced by a writing executed by the proposed purchaser)
which Tenant shall give notice of such offer to Owner and
shall deliver to Owner, simultaneously with the delivery of
such notice, an executed copy of the writing. Within 60 days
after Owners receipt of the writing, Owner by notice to
Tenant,
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may elect to purchase the interest proposed to be conveyed on
the same terms and conditions as set forth in the writing. If
Owner fails to notify Tenant of its intention to exercise such
right of first refusal, or elects not to purchase the interest
proposed to be conveyed, the proposed sale shall be deemed an
assignment and shall be subject to the provisions of Article
52, including without limitation, obtaining the consent of the
Owner, and if Owner consents, may be consummated with the
proposed purchaser who executed the writing on the same terms
and conditions as was set forth therein.
(v) If Owner fails to exercise any of its options under this
Paragraph and Tenants fails to execute and deliver the
assignment or sublease to which Owner consented within ninety
(90) days after the giving of such consent, then, Tenant shall
again comply with all the provisions of Paragraph 52 before
effecting any assignment or sublease.
(iv) Upon the effective date of each assignment or sublease
which is consented to by Owner, an additional one month's
security shall be payable to Owner upon the effective date of
any assignment or sublease and the number "two" in Paragraph
43 shall be increased by "one" for each such assignment or
sublease.
(d) For purposes of Article 52, each modification, amendment or
extension of any sublease to which the Owner has consented shall be
deemed an new sublease.
(e) Paragraph 11 of the form portion of the Lease shall be amended to
reflect that Owner shall in no event consent to a sublease or
assignment in which the proposed subtenant or assignee is engaged in
any of the following businesses, and such refusal to consent shall not
be deemed unreasonable:
(i) Restaurant of any kind;
(ii) Bar, tavern, cocktail lounge or "pub" of any kind;
(iii) Any store or business involving food, liquor or beverages;
(iv) Medical or dental clinic or office;
(v) Health club, exercise studio or gym of any kind;
(vi) Dance or music school or studio;
(vii) Discotheque or supper club;
(viii) Theater or cinema;
(ix) Sound studio;
(x) Rehearsal studio;
(xi) Funeral home;
(xii) Adult entertainment facility;
(xiii) Pet shop or veterinarian's office;
(xiv) Martial arts studio or school;
(xv) Methadone clinic;
(xvi) Dry cleaning or laundry service;
(xvii) Bicycle messenger service;
(xviii) Motel/Hotel/Hostel or any transient use;
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(xix) Sweatshop;
(xx) Adult bookstore or video shop;
(xxi) Liquor store;
(xxii) Abortion clinic;
(xxiii) Billiard parlor; and
(xxiv) Manufacturing of any kind.
R53. UTILITIES. Owner reserves the right to stop service of the mechanical,
electric, sanitary, plumbing, utility and other service systems ("services"),
when necessary, in the event of accident or emergency, or for repairs,
additions, alterations, replacements, decorations or improvements, which in the
judgment of the Owner, are desirable or necessary to be made, until said
repairs, alterations, replacements or improvements shall have been completed.
Owner shall not be liable to Tenant in any way for any claims, damages, costs or
expenses, directly or indirectly incurred, resulting from any use, interruption,
curtailment or failure, or defect in the supply of gas or electric energy and/or
water when prevented by exercising its right to stop service or by strikes,
labor troubles or accidents or by any cause whatsoever beyond Owner's control,
or by failure of any public utility or any other company or the failure of
independent contractors to perform or by laws, orders, rules and regulations of
any Federal, state, county or municipal authority, or failure of suitable fuel
supply, or inability by exercise of reasonable diligence to obtain suitable fuel
supply or by exercise of reason of government preemption in connection with a
national emergency or by reasons of the conditions of supply and demand which
have been or are affected by war or other emergency or by reason of any
requirement, act or omission of Owner or others or for any other reason except
Owner's gross negligence. The exercise of such right or such failure by Owner
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any compensation or any abatement or diminution or rent, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Owner or its agents by reason of inconvenience, lost business or
annoyance to Tenant, or injury to or interruption of Tenant's business. Nothing
state herein to the contrary, in the event of interruption of services to
Tenant, Owner agrees to give Tenant reasonable notice of any interruption of
services and to use diligent efforts to complete the repairs, alterations,
replacement, decorations or improvements expeditiously so as to minimize
interruption of Tenant's business.
R54. EXTENSION OF TERM.
(a) Subject to the provisions of this Xxxxxxxxx 00, Xxxxxx, at Tenant's
sole option, shall have the right to extend the term of this lease for
an additional five years commencing on the day following the expiration
of the initial term of this Lease (hereinafter referred to as the
"Commencement Date of the Extension Term") and ending on the day
preceding the fifth anniversary of the Commencement Date of the
Extension Term (such additional term is hereinafter called the
"Extension Term" and the last day of such Extension Term is hereinafter
called the "Extension Expiration Date") provided that:
(i) Tenant shall give Owner notice (hereinafter called the
"Extension Notice") of its election to extend the term of the
Lease not later than the day occurring
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twelve (12) months and not earlier than twenty-four (24)
months prior to the last day of the initial term of this
Lease.
(ii) Tenant shall not be in default under this lease either as
of the time of giving the extension notice or the Commencement
Date of the Extension Term.
(iii) The Tenant named herein shall, as of the Commencement
Date of the Extension Term, be in actual occupancy of the
Premises.
(b) Effective as of the Commencement Date of the Extension Term, the
Base Tax Year shall be the tax year during which the Commencement Date
of the Extension Term occurs.
(c) The fixed Annual Base Rent payable by Tenant to Owner during the
Extension Term shall be ninety (90%) of the fair market rent for the
Premises as determined by the Owner and set forth in a written notice
to Tenant, which determination shall be as of the date (hereinafter
called the "Determination Date") occurring twelve (12) months prior to
the Commencement Date of the Extension Term and which determination
shall be made by Owner and given in writing to Tenant within ninety
(90) days after the occurrence of the Determination Date, but in no
event shall such fixed Annual Base Rent be less than the Annual Base
Rent with respect to the Premises for the last full year of the initial
term of the Lease. In addition, the Annual Base Rent payable during the
Extension Term shall increase no less than three (3%) percent annually.
(d) Arbitration.
(i) In the event Tenant gives the Extension Notice in
accordance with the provisions of Paragraph 54(a) hereof and
Tenant disputes the fair market rent as determined by Owner
pursuant to Paragraph 54(c) hereof, then at any time on or
before the date occurring thirty (30) days after Tenant has
been notified by Owner of Owner's determination of fair market
rent, Tenant may initiate an arbitration process provided for
herein, by giving notice to that effect to the Owner and if
Tenant so initiates the arbitration process, such notice shall
specify the name and address of the person designated to act
as an arbitrator on its behalf. If Tenant fails to initiate
the arbitration process as provided above, time being of the
essence, then Owner's determination of the fair market rent
shall be conclusive. Within thirty (30) days after the Owner's
receipt of notice of the designation of Tenant's arbitrator,
Owner shall give notice to Tenant specifying the name and
address of the person designated to act as an arbitrator on
its behalf. If Owner fails to notify Tenant of the appointment
of its arbitrator within the time above specified, then Tenant
shall provide an additional notice to Owner requiring Owner's
appointment of an arbitrator within twenty (20) days after
Owner's receipt thereof. If Owner fails to notify Tenant of
the appointment of its arbitrator within the time specified by
the second notice, the appointment of the second arbitrator
shall be made in the same manner hereinafter provided for the
appointment of a third arbitrator in a case where the two
arbitrators appointed
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hereunder and the parties are unable to agree upon such
appointment. The two arbitrators shall meet within ten (10)
days after the second arbitrator is appointed, and if, within
sixty (60) days after the second arbitrator is appointed, the
two arbitrators shall not agree upon a determination of the
fair market rent for the Extension Term, they shall together
appoint a third arbitrator. In the event of their being unable
to agree upon such appointment within sixty (60) days after
the appointment of the second arbitrator, the third arbitrator
shall be selected by the parties themselves if they can agree
thereon within a further period of fifteen (15) days. If the
parties do not so agree, then either party, on behalf of both
and on notice to the other, may request such appointment by
the American Arbitration Association (or any organization
successor thereto) in accordance with its rules then
prevailing or if the American Arbitration Association (or such
successor organization) shall fail to appoint said third
arbitrator within fifteen (15) days after such request is
made, then either party may apply on notice to the other, to
the Supreme Court, New York County, New York (or any other
court having jurisdiction and exercising functions similar to
those now exercised by said Court) for the appointment of such
third arbitrator. The majority of the arbitrators shall
determine the fair market rent of the Premises for the
Extension Term and render a written report of their
determination to both Owner and Tenant within sixty days of
the appointment of the first two arbitrators or sixty days of
the appointment of the third arbitrator, if such third
arbitrator is appointed pursuant to this paragraph 54(d)
(I)and the fair market rent, so determined, shall be applied
to determine the fixed Annual Base Rent for the Premises
during the Extension Term; provided however that in no event
shall the fixed Annual Base Rent for the Extension Term shall
be less than 103% the Original Term Escalated Rent.
(ii) Each party shall pay the fees and expenses of the one of
the two original arbitrators appointed by and for such party,
and the fees and expenses of the third arbitrator and all
other expenses (not including the attorney's fees, witness
fees and similar expenses of the parties which shall be borne
separately by each of the parties) of the arbitration shall be
borne by the parties equally.
(iii) Each of the arbitrators selected herein provided shall
have at least ten (10) years experience in the leasing and
renting (as broker, agent or owner) of retail space in
Manhattan.
(iv) In the event the Tenant initiates the aforesaid
arbitration process and as of the Commencement Date of the
Extension Term the amount of the fair market rent has not been
determined, Tenant shall pay ninety (90%) percent of the
amount determined by Owner to be the fair market rent for the
Premises and when the determination has been actually made, an
appropriate retroactive adjustment shall be made as of the
Commencement Date of the Extension Term. In the event such
determination shall result in an overpayment by Tenant of any
fixed Annual Base Rent, such overpayment shall be paid by
Owner to Tenant promptly after such determination.
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(v) Provisions of paragraph 54 (d) (i), (ii), (iii) (iv) and
(vi) shall be inapplicable and have no force or effect in the
event Owner notifies Tenant that the fixed Annual Base Rent
for the Extension Term shall be the Original Term Escalated
Rent.
(vi) The determination of fair market rent (1) shall take into
account the rentals which could be obtained with respect to
the Premises or portions thereof, consistent with the
operation and maintenance of the premises as a first-class
commercial retail space and (2) shall be made without giving
consideration to the economic effect of savings which will
inure to the Owner by reason of the renewal of this Lease in
contrast with new or original tenancies, such as savings in
brokerage commissions, rent concessions, construction credits
or allowances and the like.
(e) Except as provided in paragraph 54(a) hereof, Tenant's occupancy of
the Premises during the Extension Term shall be on the same terms and
conditions as were in effect immediately prior to the expiration date
of the initial term of this Lease
(f) If Tenant does not timely send the Extension Notice pursuant to
provisions of paragraph 54(a) hereof, this paragraph 54 shall have no
force or effect and shall be deemed deleted from this Lease. Time shall
be of the essence with respect to the giving of the Extension Notice.
The termination of this Lease during the initial term hereof shall also
terminate and render void any option or right on Tenant's part to
extend the term of this Lease pursuant to this paragraph 54 whether or
not such option or right shall have theretofore been exercised.
(g) Except as otherwise provided in paragraph 54 hereof, if Tenant
exercises its right to extend the term of this Lease for the Extension
Term pursuant to this paragraph 54, the phrases "the term of this
Lease" or "the term thereof" as used in this Lease shall be construed
to include the Extension Term, and the Expiration Date shall be
construed to be the date of the Extension Expiration Date.
(h) Notwithstanding anything contained in this paragraph 54 to the
contrary, the Annual Base Rent payable during each Extension Term shall
increase periodically as determined by the arbitrators but in no event
less that three (3%) percent annually.
(i) This Lease and all rights of the Tenant hereunder are and shall be
subject and subordinate to the lien of any and all mortgages or
consolidated mortgages which may now or hereafter affect the demised
premises, or any part thereof, of the demised premises and other
premises, and to any and all renewals, modification, consolidations,
replacements and extensions of any such mortgage or mortgages. Tenant
shall within ten (10) day of demand at any time or times execute,
acknowledge and deliver to Owner, without expense to Owner, any and all
instruments that may be necessary or proper to subordinate this Lease
and all rights hereunder to the lien of any such mortgage or mortgages
and to each such renewal, modification, consolidation, replacement and
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extension. If Tenant shall fail at any time to execute, acknowledge and
deliver any such subordinate instrument, Owner, in addition to any
other remedies available to it in consequence thereof, may execute,
acknowledge and deliver the same as the attorney in fact of Tenant and
in Tenant's name, place and stead, and Tenant hereby irrevocably makes,
constitutes and appoints Owner, its successors and assigns, such
attorney in fact for that purpose. Owner agrees to request from any
subsequent mortgagee or ground or underlying lessors a written
agreement that the rights to the Tenant shall remain in full force and
effect during the term of the Lease so long as Tenant has and shall
continue to recognize and perform all the covenants and conditions of
the Lease.
R55. Owner represents and warrants it is the owner of the land and building
containing the demised premises and has full power and authority to enter into,
execute and deliver this Lease.
R56. Neither Owner nor its agents have made any representations with respect to
the leased property including, but not limited to, the condition of the demised
premises, the condition of the Building in which the demised premises is located
and whether the demised premises may, pursuant to the Zoning Resolution, be used
for the purposes set forth in paragraph 2. In the event that the City or other
governmental agency enforces the Zoning Resolution or any other law pertaining
to the use and occupancy of the Building or of the Premises and Tenant, after
using best efforts, is unable to comply with the Zoning Resolution or any other
law pertaining to the use and occupancy of the Building or the Premises, then,
in such event, either Tenant or Owner may terminate this Lease upon notice
setting forth a termination date which shall be no less than 120 days from the
service of said notice and Tenant shall vacate on or before the termination
date.
R57. Owner shall deliver the premises broom clean and in its "as is" condition,
reasonable wear and tear excepted. Owner agrees to install radiators, as needed,
in the premises and to replace the broken glass panel in the skylight at the
back of the Premises and repair any damage resulting from said broken glass
panel in the skylight.
R58. The Tenant shall look solely to the estate and property of the Owner in the
leased premises for the satisfaction of Tenant's remedies for the collection of
a judgment (or other judicial process) requiring the payment of money by
Landlord in the event of any default or breach of or by the Owner with respect
to any of the terms, covenants and conditions of this Lease.
R59. In the event Tenant shall be in default in the payment of rent reserved
herein, or any item of additional rent herein mentioned, or a part of either, or
in making any other payment herein required for a total of three (3) months,
whether or not consecutive, in any twelve (12) month period, and Owner shall
have served upon Tenant a petition and notice of petition to dispossess Tenant
by summary proceedings, then, notwithstanding that such defaults have been cured
prior to the entry of a judgment against Tenant, any further similar default
shall be deemed to be deliberate and Owner may serve a written three (3) days'
notice of cancellation of this Lease upon Tenant and upon expiration of said
three (3) days, this Lease and the term thereunder shall end and expire as fully
and completely at the expiration of such three (3) day period as if the
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expiration of the three-day period was the day herein definitively fixed for the
end and expiration of this Lease and the term thereof, and Tenant shall then
quit and surrender the demised premises to Owner, but Tenant shall remain liable
as elsewhere provided in this Lease.
R60. With respect to any provision of this Lease, which provides, in effect that
Owner shall not unreasonably withhold or unreasonably delay any consent or
approval, the Tenant, in no event, shall be entitled to make, nor shall Tenant
make any claim for, and Tenant hereby waives any claim for money damages.
R61. This Lease shall be deemed to have been made in New York County, New York,
and shall be construed in accordance with the Laws of the State of New York. All
actions or proceedings relating, directly or indirectly to this Lease shall be
litigated only in courts located with the County and State of New York.
R62. Whenever any default, request, action or inaction by Tenant causes Owner to
incur attorney's fees and other costs and expenses, Tenant agrees that it shall
pay Owner for such fees, costs and expenses within ten (10) days of being billed
therefor, which shall be deemed "additional rent." In the event Tenant is the
prevailing party in any legal action initiated by Owner, Tenant shall be
permitted to recoup its reasonable attorney's fees, costs and disbursements from
Owner.
R63. One or more waivers of any covenant or condition by Landlord or Tenant
shall not be construed as a waiver of the further breach of the same covenant or
condition, or of any other covenant or condition herein contained.
R64. Owner shall not be in default under this Lease in any respect unless the
Tenant shall have given the Owner written notice of the breach by certified or
registered mail, return receipt requested, or by personal delivery and within
twenty (20) days after notice, Owner has not cured the breach or if the breach
is such that it cannot reasonably be cured under the circumstances within twenty
(20) days, has not commenced to proceed to cure the breach.
R65. The Tenant covenants and agrees to obtain and maintain, at its sole cost
and expense, all licenses and permits from the governmental authorities having
jurisdiction thereof, necessary for the conduct of Tenant's business in the
demised premises and, Tenant will comply with all applicable laws, resolutions,
or governmental authority having jurisdiction over the operation, occupancy,
maintenance or use of the demised premises. The Tenant will indemnify and save
Owner harmless from and against any claims, penalty, loss, damage or expense
including reasonable attorney's fees of the Owner imposed by reason of violation
of any such applicable law or the rules and regulations of any such governmental
authority having jurisdiction thereof pertaining to the proposed use by Tenant
of the demised premises.
R66. Upon reasonable notice, Tenant shall permit Owner and/or its designees to
erect, use maintain and repair pipes, cables, conduits, plumbing, vents and
wires, in, to and through the Premises (the "work"), as and to the extent that
Owner may reasonably now or hereafter deem to be reasonably necessary or
reasonably appropriate for the proper operation and maintenance of
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the Building in which the Premises are located, and to comply with any and all
requirements of Law. Owner agrees to use diligent efforts to complete said work
expeditiously.
R67. HOURS OF OPERATION: Tenant may operate its business between the hours of
10:00 a. m. to 8:00 p. m. with the understanding that the demised premises is
located in a building containing residential units and that the level of noise,
including but not limited to, the playing of music, and hours of operation shall
not interfere with the residential owners' quiet enjoyment.
R68. BROKER. Tenant warrants that no broker introduced Tenant to the Premises,
proposed the making of the Lease, or initiated, further or perpetuated the
negotiations between the parties hereto other than SINVIN Realty Corp. by Xxxxx
Xxxxxx and Xxxxxx Realty Group by Xxxxxx Xxxxx and Tenant indemnifies, defends
and holds Owner harmless from any and all loss, cost or damage as a result of
the claims of other brokers or agents claiming to have dealt with Tenant in
connection with this Lease. Owner agrees to indemnify, defend and hold Tenant
harmless from any and all loss, cost or damage as a result of the claims of any
broker claiming to have dealt with Owner in connection with this Lease.
R69. ACCESS. Upon reasonable notice, Tenant shall grant access for the purposes
of inspection, repair or replacement of utility meters, sprinkler pumps and
plumbing located in the basement of the premises. Owner shall be liable for
Owner's negligence with respect to such access. Tenant agrees to provide access
to representatives of the utility companies for meter readings and the like.
R70. SIDEWALK HATCH. Tenant may use the sidewalk hatch adjacent to the premises
for purposes of deliveries. All deliveries shall take place during the hours of
operation as set forth in this Lease, i.e. 10:00 a. m. to 8:00 p. m. Tenant
shall closely supervise any deliveries and instruct any delivery vehicle to keep
any vehicle off of the sidewalk. Tenant will not allow delivery trucks to idle
in front of the building. Tenant shall be responsible for and shall indemnify
and defend 000 Xxxxxx Xxxxxx Corp. against any and all loss, cost or damage
relating to or arising from deliveries made to Tenant or the Premises.
000 XXXXXX XXXXXX CORP.
By: ______________________________
BLUE FISH CLOTHING, INC.
By: ______________________________
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