STANDARD FORM OF LOFT LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
AGREEMENT OF LEASE, made as of this 2nd day of July 1999, between
Waltox Corporation, N.V. c/o First Pioneer Properties, Inc., 00-00 Xxxxxx
Xxxxxxxxx party of the first part, hereinafter referred to as OWNER, and
Xxxx Xxxxxx Xxxx, XX 00000
You Network Corporation party of the second part, hereinafter referred to as
TENANT.
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner The
Entire 9th Floor in the building known as 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX in
the Borough of Manhattan, City of New York, for the term of Three (3) years (or
until such term shall sooner cease and expire as hereinafter provided) to
commence on the 1st day of July nineteen hundred and ninety nine, and to end on
the 30th day of June two thousand two and both dates inclusive, at an annual
rental rate of One Hundred Thirty Two Thousand ($132,000) Dollars per annum,
payable in advance in equal monthly installments of $11,000 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).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent: 1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy: 2. Tenant shall use and occupy demised premises for General and
Executive Offices
provided such use is in accordance with the certificate of occupancy for the
building, if any, and for no other purpose.
ALTERATIONS: 3. Tenant shall make no changes in or to the demised
premises of any nature without Owner's prior written consent. [1] 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 nonstructural and which do not affect utility services or
plumbing and electrical lines, in or to the interior of the demised premises
using contractors or mechanics first approved in each instance by Owner. Tenant
shall, at its expense, before making any alterations, additions, installations
or improvements obtain all permits, approval 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. 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 been done
for, or materials furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within thirty days thereafter at
Tenant's expense, by payment or filing the bond required by law or otherwise.
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 right thereto and to have them removed
by Tenant, in which event the same shall be removed from the demised 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, [2]
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. [3] 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 removed from the premises by Owner, at Tenant's expense.
REPAIRS: 4. Owner shall maintain and repair the exterior of and the
public portions of the building. Tenant shall, (4) throughout the term of this
lease, take good care of the demised premises including the bathrooms and
lavatory facilities (if the demised premises encompass the entire floor of the
building) and the windows and window frames and, the fixtures and appurtenances
therein and [4] at Tenant's sole cost and expense promptly make all repairs
thereto and to the building, whether structural or non-structural in nature,
caused by or resulting from the carelessness, omission, neglect or improper
conduct of Tenant. Tenant's servants, employees, invitees, or licensees, and
whether or not arising from such Tenant conduct or omission, when required by
other provisions of this lease, including Article 6. Tenant shall also repair
all damage to the building and the demised premises caused by the moving of
Tenant's fixtures, furniture or equipment. All the aforesaid repairs shall be of
quality or class equal to the original work or construction. If Tenant fails,
after ten days notice, to proceed with due diligence to make repairs required to
be made by Tenant, the same may be made by the Owner at the expense of Tenant,
and the expenses thereof incurred by Owner shall be collectible, as additional
rent, after rendition of a xxxx or statement therefor. If the demised premises
be or become infested with vermin, [5] Tenant shall, at its expense, cause the
same to be exterminated. Tenant shall give Owner prompt notice of any defective
condition [6] in any [7] plumbing, heating system or electrical lines located in
the demised premises and following such notice, Owner shall remedy the condition
with due diligence, but at the expense of Tenant, if repairs are necessitated by
damage or injury attributable to Tenant. Tenant's servants, agents, employees,
invitees or licensees as aforesaid. Except as specifically provided in Article 9
or elsewhere in this lease, there shall be no allowance to the Tenant for a
diminution 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 of failing to make any repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises or in
and to the fixtures, appurtenances or equipment thereof. It is specifically
agreed that Tenant shall not be entitled to any set off or reduction of rent by
reason of any failure of Owner to comply with the covenants of this or any other
article of this lease. Tenant agrees that Tenant's sole remedy at law in such
instance will be by way of any action for damages for breach of contract. The
provisions of this Article 4 with respect to the making of repairs shall not
apply in the case of fire or other casualty with regard to which Article 9
hereof shall apply.
WINDOW CLEANING: 5. 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 State Labor Law or any other applicable
law or of the Rules of the Board of Standards and Appeals, or of any other Board
or body having or asserting jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE: 6. Prior to the commencement of the
lease term, if Tenant is then in possession, and at all times thereafter Tenant
shall, at Tenant's sole cost and expense, 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, whether or not arising out of Tenant's use or
manner of use thereof, or, with respect to the building, if arising out of
Tenant's use or manner of use of the demised premises of the building (including
the use permitted under the lease). Except as provided in Article 30 thereof,
nothing herein shall require Tenant to make structural repairs or alterations
unless Tenant has, by its manner of use of the demised premises or method of
operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto. Tenant 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 not keep anything in the demised premises
except as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. If by reason of failure to comply with the foregoing the
fire insurance rate shall, at the beginning of this 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. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" or 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 rates then applicable to said premises. Tenant
shall not place a load upon any floor of the demised premises exceeding the
floor load per square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to prescribe the weight and position of
all safes, business machines and mechanical equipment. Such installations shall
be placed and maintained by Tenant, at Tenant's expense, in settings sufficient,
in Owner's judgement, to absorb and prevent vibration, noise and annoyance.
SUBORDINATION: 7. 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 self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
TENANT'S LIABILITY INSURANCE PROPERTY LOSS, DAMAGE, INDEMNITY: 8. Owner
or its agents shall not be liable for any damage to property of Tenant or of
others entrusted to employees of the building, nor for loss of or damage to any
property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence of Owner, its agents, servants or employees; Owner
or its agents shall not be liable for any damage caused by other tenants or
persons in, upon or about said building or caused by operations in connection of
any private, public or quasi public work [8] if at any time any windows of the
demised premises are temporarily closed, darkened or bricked up (or permanently
closed, darkened or bricked up, if required by law) for any reason whatsoever
including, but not limited to Owner's own acts, Owner shall not be liable for
any damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction. Tenant
shall indemnify and save harmless Owner against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable attorney's fees,
paid, suffered or incurred as a result of any breach by Tenant, Tenant's agents,
contractors, employees, invitees, or licensees, of any covenant or condition of
this lease, or the carelessness, negligence or improper conduct of the Tenant,
Tenant's agents, contractors, employees, invitees or licensees (8). Tenant's
liability under this lease extends to the acts and omissions of any sub-tenant,
and any agent, contractor, employee, invitee or licensee of any sub-tenant. In
case any action or proceeding is brought against Owner by reason of any such
claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resist
or defend such action or proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY: 9. (a) If the demised premises or
any part thereof shall be damaged by fire or other casualty, Tenant shall give
immediate notice thereof to Owner and this lease shall continue in full force
and effect except as hereinafter set forth. (b) If the demised premises are
partially damaged or rendered partially unusable by fire or other casualty, the
damages thereto shall be repaired by and at the expense of Owner and the rent
and other items of additional rent, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent and other items of additional rent as hereinafter expressly provided shall
be proportionately paid up to the time of the casualty and thenceforth shall
cease until the date when the premises shall have been repaired and restored by
Owner (or sooner reoccupied in part by Tenant then rent shall be apportioned as
provided in subsection (b) above), subject to Owner's right to elect not to
restore the same as hereinafter provided. (d) If the demised premises are
rendered wholly unusable or (whether or not the demised premises are damaged in
whole or in part) if the building shall be so damaged that Owner shall decide to
demolish it or to rebuild it, then, in any of such events, Owner may elect to
terminate this lease by written notice to Tenant, given within 90 days after
such fire or casualty, or 30 days after adjustment of the insurance claim for
such fire or casualty, whichever is sooner, specifying a date for the expiration
of the lease, which date shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the term of this lease shall
expire as fully and completely as if such date were the date set forth above for
the termination of this lease and Tenant shall forthwith quit, surrender and
vacate the premises without prejudice however, to 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
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and 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 shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, including Owner's obligation to restore under
subparagraph (b) above, each party shall look first to any insurance in its
favor before making any claim against the other party for recovery for loss or
damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law. Owner
and Tenant each hereby releases and waives all right of recovery with respect to
subparagraphs (b), (d) and (e) above, against the other or any one claiming
through or under each of them by way of subrogation or otherwise. The release
and waiver herein referred to shall be deemed to include any loss or damage to
the demised premises and/or to any personal property, equipment trade fixtures,
goods and merchandise located therein. The foregoing release and waiver shall be
in force only if both releasor's insurance policies contain a clause providing
that such a release or waiver shall not invalidate the insurance. If, and to the
extent, that such waiver can be obtained only by the payment of additional
premiums, then the party benefitting from the waiver shall pay such premium
within ten days after written demand or shall be deemed to have agreed that the
party obtaining insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant acknowledges
that Owner will not carry insurance on Tenant's furniture and or furnishings or
any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Owner will not be obligated to repair any damage thereto or
replace the same. (f) Tenant hereby waives the provisions of Section 227 of the
Real Property Law and agrees that the provisions of this article shall govern
and control in lieu thereof.
EMINENT DOMAIN: 10. 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. Tenant shall
have the right to make an independent claim to the condemning authority for the
value of Tenant's moving expenses and personal property, trade fixtures and
equipment provided Tenant is entitled pursuant to the terms of the lease to
remove such property, trade fixtures and equipment at the end of the term and
provided further such claim does not reduce Owner's award.
ASSIGNMENT, MORTGAGE, ETC.: 11. 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 [9] in
each instance. Transfer of the majority of the stock of a corporate Tenant or
the majority partnership interest of a partnership Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, undertenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by 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 any further assignment
or underletting.
ELECTRIC CURRENT: 12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
ACCESS TO PREMISES: 13. 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 after 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
provided, wherever possible, they are within walls or otherwise concealed. 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 to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the building, and
during the last six months of the term for the purpose of showing the same to
prospective tenants and may, during said six months period, place upon
the demised premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised premises, Owner or Owner's
agents may enter the same whenever such entry may be necessary or permissible by
master key or forcibly and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the 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 obligation hereunder.
VAULT, VAULT SPACE, AREA: 14. No Vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
lines of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant, if used by
Tenant, whether or not specifically leased hereunder.
OCCUPANCY: 15. Tenant will not at any time use or occupy the demised
premises in violation of the certificate of occupancy issued for the building of
which the demised premises are a part. 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. If any governmental license or permit shall be required for
the proper and lawful conduct of Tenant's business, Tenant shall be responsible
for and shall procure and maintain such license or permit.
BANKRUPTCY: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by 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; or (2) the making by Tenant
of an assignment or any other arrangement for the benefit of creditors under any
state statute. Neither Tenant nor any person claiming through or under Tenant,
or by reason of any statute or order of court, shall thereafter be entitled to
possession of the premises demised but shall forthwith quit and surrender the
premises. If this lease shall be assigned in accordance with its terms, the
provisions of this Article 16 shall be applicable only to the party then owning
Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rental 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 relet by the Owner for the unexpired term of said lease,
or any part thereof, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the amount of rent reserved upon such
reletting shall be deemed to be the fair and reasonable rental value for the
part of the whole of the premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of the Owner to
prove for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the amount
of the difference referred to above.
DEFAULT: 17. (1) If Tenant defaults in fulfilling any of the
covenants of this lease other than the covenants for the payment of rent or
additional rent; or if the demised premises becomes vacant or deserted "or if
this lease be rejected under [Section] 235 of Title 11 of the U.S. Code
(bankruptcy code):" or if any execution or attachment shall be issued against
Tenant or any of Tenant's property whereupon the demised premises shall be taken
or occupied by someone other than Tenant; or if Tenant shall make default with
respect to any other lease between Owner and Tenant; or if Tenant shall have
failed, after five (5) days written notice, to redeposit with Owner any portion
of the security deposited hereunder which Owner has applied to the payment of
any rent and additional rent due and payable hereunder or failed to move into or
take possession of the premises within thirty (30) days after the commencement
of the term of this lease, of which fact Owner shall be the sole judge; then in
any one or more of such events, upon Owner serving a written fifteen (15) days
notice upon Tenant specifying the nature of said default and upon the expiration
of said fifteen (15) days, if Tenant shall have failed to comply with or remedy
such default, or if the said default or omission complained of shall be of a
nature that the same cannot be completely cured or remedied within said fifteen
(15) day period, and if Tenant shall not have diligently commenced during such
default within such fifteen (15) day period, and shall not thereafter with
reasonable diligence and in good faith, proceed to remedy or cure such default,
then Owner may serve a written five (5) days' notice of cancellation of this
lease upon Tenant, and upon the expiration of said five (5) days this lease and
the term thereunder shall end and expire as fully and completely as if the
expiration of such five (5) day period were the day herein definitely fixed for
the end and expiration of this lease and the term thereof and Tenant shall then
quit and surrender the demised premises to Owner but Tenant shall remain liable
as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have
been given, and the term shall expire as aforesaid; or if Tenant shall make
default in the payment of the rent reserved herein or any item of additional
rent herein mentioned or any part of either or in making any other payment
herein required; then and in any of 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. If Tenant shall make default hereunder prior to the date fixed as the
commencement of any renewal or extension of this lease. Owner may cancel and
terminate such renewal or extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION: 18. In case of any such
default, re-entry, expiration and/or dispossess by summary proceedings or other
wise, (a) the rent, and additional rent, shall become due thereupon and be paid
up to the time of such re-entry, dispossess and/or expiration, (b) Owner may
re-let the premises or any part or parts thereof, either in the name of Owner or
otherwise, for a term or terms, which may at Owner's option be less than or
exceed the period which would otherwise have constituted the balance of the term
of this lease and may grant concessions or free rent or charge a higher rental
than that in this lease, (c) Tenant or the legal representatives 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, reasonable attorneys' fees, brokerage, advertising and for
keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any subsequent month by a similar
proceeding. Owner, in putting the demised premises in good order or preparing
the same for re-rental may, at Owner's option, make such alterations, repairs,
replacements, and/or decorations in the demised premises as Owner, in Owner's
sole judgment, considers advisable and necessary for the purpose of re-letting
the demised premises, and the making of such alterations, repairs, replacements,
and/or decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Owner shall in no event be liable in any way
whatsoever for failure to re-let the demised premises, or in the event that the
demised premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws.
FEES AND EXPENSES: 19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, after
notice if required and upon expiration of any applicable grace period if any,
(except in an emergency), then, unless otherwise provided elsewhere in this
lease, Owner may immediately or at any time thereafter and without notice
perform the obligation of Tenant thereunder. If Owner, in connection with the
foregoing or in connection with any default by Tenant in the covenant to pay
rent hereunder, makes any expenditures or incurs any obligations for the payment
of money, including but not limited to reasonable attorney's fees, in
instituting, prosecuting or defending any action or proceedings, and prevails in
any such action or proceeding, then Tenant will reimburse Owner for such sums so
paid or obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Owner within ten (10) days of rendition
of any xxxx or statement to Tenant therefor. If Tenant's lease term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT: 20. Owner shall have the right at any
time without the same constituting an eviction and without incurring liability
to Tenant therefor to change the arrangement and or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or other public parts of the building and to change the name, number or
designation by which the building may be known. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Owner by
reason of inconvenience, annoyance or injury to business arising from Owner or
other Tenant making any repairs in the building or any such alterations,
additions and improvements. Furthermore, Tenant shall not have any claim against
Owner by reason of Owner's imposition of any controls of the manner of access to
the building by Tenant's social or business visitors as the Owner may deem
necessary for the security of the building and its occupants.
NO REPRESENTATION BY OWNER: 21. 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 demised premises or the building except as herein expressly set forth and
no rights, casements or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this lease. Tenant
has inspected the building and the demised premises and is thoroughly acquainted
with their condition and agrees to like the same "as is" on the date possession
is tendered 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.
END OF TERM: 22. Upon the expiration or other termination of the term of
this lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property from the demised premises. Tenant's obligation to
observe or perform this covenant shall survive the expiration or other
termination of this lease. If the last day of the term of this Lease or any
renewal thereof, falls on Sunday, this lease shall expire at noon on the
preceding Saturday unless it be a legal holiday in which case it shall expire at
noon on the preceding business day.
QUIET ENJOYMENT: 23. 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 34 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
FAILURE TO GIVE POSSESSION: 24. 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 demised 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 or
occupancy has not been procured or if Owner has not completed any work required
to be performed by Owner, of 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 Owner's
inability to obtain possession or complete any work required) until after Owner
shall have given Tenant notice that Owner is able to deliver possession in the
condition required by this lease. 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 possession and/or occupancy
shall be deemed to be under all the terms, covenants, conditions and provisions
of this lease, except the obligation to pay the fixed annual rent set forth in
page one of this lease. The provisions of this article are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
NO WAIVER: 25. 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 payments 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, not 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 or such rent
or pursue any other remedy in this lease provided. All checks tendered to Owner
as and for the rent of the demised premises shall be deemed payments for the
account of Tenant. Acceptance of Owner of rent from anyone other than Tenant
shall not be deemed to operate as an attornment to Owner by the payor of such
rent or as a consent by Owner to an assignment or subletting by Tenant of the
demised premises to such payor, or as a modification of the provisions of this
lease. No act or thing done by Owner or Owner's agents during the term hereby
demised shall be deemed an acceptance of a surrender of said premises and no
agreement to accept such surrender shall be valid unless in writing signed by
Owner. No employee of Owner or Owner's agent shall have any power to accept the
keys of said premises prior to the termination of the lease and the delivery of
keys to any such agent or employee shall not operate as a termination of the
lease or a surrender of the premises.
[GRAPHIC OMITTED]
WAIVER OF TRIAL BY JURY: 26. It is mutually agreed by and between Owner
and Tenant that the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property
damage) on any matters whatsoever arising out of or in any way connected with
this lease, the relationship of Owner and Tenant. Tenant's use of or occupancy
of said premises, and any emergency statutory or any other statutory remedy. It
is further mutually agreed that in the event Owner commences any proceeding or
action for possession including a summary proceeding for possession of the
premises. Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding including a counterclaim under Article 4
except for statutory mandatory counterclaim. [10]
INABILITY TO PERFORM: 27. 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, fixtures or other materials of Owner is prevented or
delayed from doing so by reason of strike or labor troubles or any cause
whatsoever beyond Owner's sole control including, but not limited to, government
preemption or restrictions or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency or by reason of the
conditions which have been or are affected, either directly or indirectly, by
war or other emergency.
BILLS AND NOTICES: 28. 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 of 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.
WATER CHARGES: 29. 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 measure 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 in default of which Owner may cause such meter and equipment to be
replaced or repaired and collect the cost thereof from Tenant, as additional
rent. Tenant agrees to pay for water consumed, as shown on said meter as and
when bills are rendered, and on default in making such payment. Owner may pay
such charges and collect the same from Tenant, as additional rent. Tenant
covenants and agrees to pay, as additional rent, 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 connection or system. If
the building or the demised premises or any part thereof is supplied with water
through a meter through which water is also supplied to other premises Tenant
shall pay to Owner, as additional rent, [GRAPHIC OMITTED] on the first day of
each month, % ($150.00) of the total meter charges as Tenant's portion.
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.
SPRINKLERS: 30. Anything elsewhere in this lease to the contrary
notwithstanding, if the New York Board of Fire Underwriters or the New York Fire
Insurance Exchange or any bureau, department or official of the federal, state
city government recommend or require the installation of a sprinkler system or
that any changes, modifications, alterations, or additional sprinkler heads or
other equipment be made or supplied in an existing sprinkler system by reason of
Tenant's business, or the location or partitions, trade fixtures, or other
contents of the demised premises, or for any other reason, or if any such
sprinkler system installations, modifications, alterations, additional sprinkler
header or other such equipment, become necessary to prevent the imposition of a
penalty or charge against the full allowance for a sprinkler system in the fire
insurance rate set by any said Exchange or by any fire insurance company, 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. Tenant shall pay [GRAPHIC OMITTED] to Owner as
additional rent the sum of $150.00 on the first day of each month during the
term of this lease, as Tenant's portion of the contract price for sprinkler
supervisory service.
ELEVATORS, HEAT, CLEANING: 31. As long as Tenant is not in default under
any the covenants of this lease beyond the applicable grace period provided in
this lease for the curing of such defaults, Owner shall: (a) provide necessary
passenger elevator facilities on business days from 8 a.m. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m.; (b) if freight elevator service is provided,
same shall be provided only on regular business days Monday through Friday
inclusive, and on those days only between the hours of 9 a.m. and 12 noon and
between 1 p.m. and 5 p.m.; (c) furnish heat, water and other services supplied
by Owner to the demised premised, when and as required by law, on business days
from 8 a.m. to 6 p.m. and on Saturdays from 8
a.m. to 1 p.m.; (d) clean the public halls and public portions of the building
which are used in common by all tenants, Tenant shall, at Tenant's expense, keep
the demised premises, including the windows, clean and in order, to the
reasonable satisfaction of Owner, and for that purpose shall employ the person
or persons, or corporation approved by Owner. 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 time as Owner may elect
and shall be due and payable hereunder, 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. Owner reserves
the right to stop service of the heating, elevator, plumbing and electric
systems, when necessary, by reason of accident, or emergency, or for repairs,
alterations, replacements or improvements, in the judgment of Owner desirable or
necessary to be made, until said repairs, alterations, replacements or
improvements shall have been completed. If the building of which the demised
premises are a part supplies manually operated elevator service. Owner may
proceed diligently with alterations necessary to substitute automatic control
elevator service without in any way affecting the obligations of Tenant
hereunder.
SECURITY: 32. Tenant has deposited with Owner the sum of
[GRAPHIC OMITTED] $ See Rider as security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this lease; it
is agreed that in the event Tenant defaults in respect of any of the terms,
provisions and conditions of this lease, including, but not limited to, the
payment of rent and additional rent, Owner may use, apply or retain the whole
or any part of the security so deposited to the extent required for the
payment of any rent and additional rent or any other sum as to which Tenant is
in default or for any sum which Owner may expend or may be required to expend
by reason of Tenant's default in respect of any of the terms, covenants and
conditions of this lease, including but not limited to, any damages or
deficiency in the reletting 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 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 vendor or lease and Owner shall thereupon be released by
Tenant from all liability for the return of such security; and Tenant agrees
to look to the new Owner solely for the return of said security, and it is
agreed that the provisions hereof shall apply to every transfer or assignment
made of the security to a new Owner. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the monies deposited
herein as a security and that neither Owner nor its successors or assigns
shall be bound by any such assignment, encumbrance, attempted assignment or
attempted encumbrance.
CAPTIONS: 33. 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.
DEFINITIONS: 34. The term "Owner" as used in this lease means only the
owner of the fee or of the leasehold of the building, 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 or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said leases of the building, or of the land and building, that the purchaser or
the leases 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 "rent" includes the annual rental rate whether so expressed or
expressed in monthly installments, and "additional rent." "Additional rent"
means all sums which shall be due to Owner from Tenant under this lease, in
addition to the annual rental rate. The term "business days" as used in this
lease, shall exclude Saturdays, Sundays and all days observed by the State or
Federal Government as legal holidays and those designated as holidays by the
applicable building service union employees service contract or by the
applicable Operating Engineers contract with respect to HVAC service. Wherever
it is expressly provided in this lease that consent shall not be unreasonably
withheld, such consent shall not be unreasonably delayed.
ADJACENT EXCAVATION SHORTAGE: 35. If an excavation shall be made upon
land adjacent to the demised premises, or shall be authorized to be made. Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the demised premises for the purpose of doing such work as
said person shall deem necessary to preserve the wall or the building of which
demised premises form a part from injury or damage and to support the same by
proper foundations without any claim for damages or indemnity against Owner, or
diminution or abatement of rent.
RULES AND REGULATIONS: 36. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations annexed hereto 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 fifteen (15) 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.
CLASS: 37. Owner shall replace, at the expense of the 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.
ESTOPPEL CERTIFICATES: 38. Tenant, at any time, and from time to time, upon at
least 10 days' prior notice by Owner, shall execute, acknowledge and deliver to
Owner, and/or to any other person, firm or corporation specified by Owner, a
statement certifying that this lease is unmodified in full force and effect (or,
if there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this lease, and, if so, specifying each such default.
DIRECTORY BOARD LISTING: 39. If, at the request of and as accommodation to
Tenant, Owner shall place upon the directory board in the lobby of the building,
one or more names of persons other than Tenant, such directory board listing
shall not be construed as the consent by Owner to an assignment or subletting by
Tenant to such persons or persons.
SUCCESSORS AND ASSIGNS: 40. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns. Tenant shall look
only to Owner's cause and interest in the land and building for the satisfaction
of Tenant's remedies for the collection of a judgment (or other judicial
process) against Owner in the event of any default by Owner hereunder, and no
other property or assets of such Owner (or any partner, member, officer or
director thereof, disclosed or undisclosed), shall be subject to levy, execution
or other enforcement procedure for the satisfaction of Tenant's remedies under
or with respect to this lease, the relationship of Owner and Tenant hereunder,
or Tenant's use and occupancy of the demised premises.
[GRAPHIC OMITTED]
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 WALTOX CORPORATION, N.V. [CORP.
FIRST PIONEER PROPERTIES, INC. SEAL]
By: --------------------------------
as agent
--------------------------------
By:
--------------------------------[L.S.]
Vice President
[CORP.
Witness for Tenant YOU NETWORK CORPORATION SEAL]
--------------------------------
-------------------------------- By:
--------------------------------[L.S.]
President
RIDER attached to and forming part of Lease dated as of the day of May
1999, between Waltox Corporation, N.V., as LANDLORD, and YouNetwork Corporation
as TENANT
41. PROVISIONS OF RIDER
This rider is annexed to and made a part of the printed part of this
lease and to which it is attached and in each instance in which the provisions
of this rider shall contradict or be inconsistent with the provisions of the
printed portion of this lease, as constituted without this rider, the provisions
of this rider shall prevail and govern and the contradicted or inconsistent
provisions of the printed portion of this lease shall be deemed amended
accordingly. The term "Landlord" used within this rider shall be used
interchangeably with the term "Owner" used within the printed form of this
lease.
42. CERTIFICATES BY TENANT
At any time and from time to time, Tenant, for the benefit of Landlord
and the lessor under any ground lease or underlying lease or the holder of any
leasehold mortgage affecting any ground lease or underlying lease, or of any fee
mortgage covering the land or the land and building containing the demised
premises, on at least ten (10) days prior written request by Landlord, will
deliver to Landlord a statement, certifying that this lease is not modified and
is in full force and effect (or if there shall have been modifications that the
same is in full force and effect as modified, and stating the modifications),
the commencement and expiration dates hereof, the dates to which the fixed rent,
additional rent and other charges have been paid, and whether or not, to the
best knowledge of the signer of such statement, there are any then existing
defaults on the part of either Landlord or Tenant in the performance of the
terms, covenants and conditions of this lease, and if so, specifying the default
of which the signer of such statement has knowledge.
Landlord shall from time to time provide upon ten (10) days prior
written request by Tenant a statement certifying as to status of rent and
additional rental payments due under this lease and/or that lease has not been
modified and remains in full force and effect.
43. LIMITATION OF LIABILITY
Tenant agrees that the liability of Landlord under this lease and all
matters pertaining to or arising out of the tenancy and the use and occupancy of
the demised premises shall be limited to Landlord's interest in the building of
which the demised premises form a part, the land on which such building stands,
the rents and profits therefrom and the proceeds of insurance thereon and in no
event shall Tenant make any claim against or seek to impose any personal
liability upon any general or limited partner of Landlord or any principal of
any firm or corporation that may hereafter be or become the Landlord.
44. INDEMNIFICATION & INSURANCE
To the extent any injury, loss, claim or damage to any person or
property is not covered by insurance, Tenant shall save Landlord harmless and
indemnify it from and against all injury, loss, claims or damage to any person
or property while on the demised premises arising out of the manner or use of
the demised premises by Tenant and from and against all injury, loss, claim or
damage to any person or property anywhere occasioned by any neglect or default
of Tenant or Tenant's servants, employees or licensees unless caused by the
negligence of Landlord, his servants or employees.
Tenant covenants and agrees that during the term of this lease it will
provide and keep in force general public liability insurance protecting and
indemnifying persons and property in or about the demised premises and in the
connecting corridor to the limit of not less than five million ($5,000,000)
dollars in respect of any one occurrence and to the limit of not less than one
million ($1,000,000) dollars for property damage.
Tenant shall provide, or cause to be provided, Workmen's Compensation
Insurance covering all persons employed in connection with the performance of
work upon, in or about the demised premises.
All such insurance shall be effected in standard form under valid
enforceable policies issued by insurers licensed to do business in the State of
New York and shall, except in the case of Workmen's Compensation Insurance, name
Landlord and Tenant as the insureds as their respective interests may appear.
Landlord agrees that for this purpose National Union Fire Insurance Co., or an
insurer of similar stature shall be an acceptable insurance company.
Certificates of such insurance shall be delivered to Landlord from time to time
during the term of this lease at least ten days prior to the expiration date of
the previous policy together with certificates evidencing the renewal of such
policy with satisfactory evidence of payment of the premium on such policy. To
the extent obtainable, all such policies shall contain agreements by the
insurers that (i) such policies shall not be cancelled except upon ten days
prior written notice to each name insured and (ii) the coverage afforded thereby
shall not be affected by the performance of any work upon, in or about the
demised premises. Nothing in this paragraph shall prevent Tenant from taking out
such insurance under a blanket insurance policy, or policies, which also can
cover other properties, or parts thereof, owned, leased or operated by Tenant as
well as the demised premises.
Tenant agrees to pay all premiums and charges for such insurance, and
in the event of its failure to make any such payment when due, or in the event
of its failure to provide such insurance or renewal thereof, Landlord may
procure the same and/or pay the premium thereon (but in no event shall be
obligated to do so), and Tenant agrees to pay such premiums to Landlord upon
demand as additional rent.
45. ADDENDA TO ARTICLE 6 - REQUIREMENTS TO LAW
A. If at any time during the term of this lease, the fire and life
safety law requirements of the City of New York pursuant to Local Law #5 of
1973, Local Law #16 of 1984 or otherwise ("Fire Requirements") or the masonry or
exterior wall requirements of the City of New York pursuant to Local Law #10 of
1980 or otherwise ("Masonry Requirements") or any other laws or requirements of
the City of New York or any agency having jurisdiction ("Other Requirements")
shall impose any obligations or requirements upon Landlord to perform any
alterations, installations, changes or improvements (collectively "changes") to
the building hereof and/or the demised premises, then Tenant shall pay to
Landlord as additional rent eight and 33/100 (8.33%) percent ("Tenant's
Payment") of all costs and expenses incurred by Landlord in complying with the
Fire Requirements, Masonry Requirements or Other Requirements. Tenant's Payment
shall be due and payable to Landlord within thirty (30) days after rendition of
a xxxx therefor accompanied by a statement setting forth the changes performed
by Landlord. The obligation of Tenant in respect of such additional rent shall
survive the expiration of this lease.
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B. Refuse Recycling and Removal
(i) Compliance by Tenant. Tenant covenants and agrees, at its
sole cost and expense to comply with all present and future laws, orders, and
regulations of all state, federal, municipal, and local governments,
departments, commissions, and boards regarding the collection, sorting,
separation, and recycling of waste products, garbage, refuse, and trash. Tenant
or Tenant's cleaning contractor shall sort and separate such waste products,
garbage, refuse, and trash into such categories as provided by law. Each
separately sorted category of waste products, garbage, refuse, and trash shall
be placed in separate receptacles reasonably approved by Landlord. Such separate
receptacle, may at Landlord's option, be removed from the demised premises in
accordance with a collection schedule prescribed by law.
(ii) Landlord's Rights in Event of Noncompliance. Landlord
reserves the right to prohibit the removal of refuse or to collect or accept
from Tenant any waste products, garbage, refuse, or trash that are not separated
and sorted as required by law, and to require Tenant to arrange for such
collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Landlord. Tenant shall pay all costs, expenses, fines,
penalties, or damages that may be imposed on Landlord or Tenant by reason of
Tenant's failure to comply with the provisions of this article, and, at Tenant's
sole cost and expense, shall indemnify, defend, and hold Landlord harmless
(including legal fees and expenses) from and against any actions, claims, and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to Landlord.
46. BINDING EFFECT
The submission by Landlord of this lease in draft form shall be deemed
submitted solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force or effect and shall
confer no rights nor impose any obligation, including brokerage obligations, on
either party unless and until both Landlord and Tenant shall have executed this
lease and duplicate originals thereof shall have been delivered to the
respective parties.
47. REAL ESTATE TAXES
Tenant shall pay to Landlord, as additional rent, escalation based on
increases in real estate taxes in accordance with this Paragraph:
(a) Definitions: For the purpose of this Paragraph, the following
definitions shall apply:
(i) The term "base tax year" as hereinafter set forth for
the determination of real estate tax escalation shall
mean the average of the New York City real estate tax
years commencing July 1, 1998 and ending June 30,
1999 and commencing July 1, 1999 and ending June 30,
2000.
(ii) The term "The Percentage" shall mean eight and 33/100
(8.33%) percent.
(iii) The term "the building project" shall mean all of the
land together with the improvements thereon known as
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
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(iv) The term "comparative year" shall mean the twelve
months following the base tax year, and each
subsequent period of twelve months.
(v) The term "real estate taxes" shall mean the total of
all taxes and special or other assessments levied,
assessed or imposed at any time by any governmental
authority upon or against the building project, and
also any tax or assessment levied, assessed or
imposed at any time by any governmental authority in
connection with the receipt of income or rents from
said building project to the extent that same shall
be in lieu of all or a portion of any of the
aforesaid taxes or assessments, or additions or
increases thereof, upon or against said building
project. If, due to a future change in the method of
taxation or in the taxing authority or for any other
reason, a franchise, income, transit, profit or other
tax or governmental imposition, however designated,
shall be levied against Landlord in substitution in
whole or in part for the real estate taxes, or in
lieu of additions to or increases of said real estate
taxes, then such franchise, income, transit, profit
or other tax or governmental imposition shall be
deemed to be included within the definition of "real
estate taxes" for the purposes hereof. As to special
assessments which are payable over a period of time
extending beyond the term of this Lease, only a
prorata portion thereof, covering the portion of the
term of this Lease unexpired at the time of the
imposition of such assessment, shall be included in
"real estate taxes." If, by law, any assessment may
be paid in installments, then, for the purposes
hereof (a) such assessment shall be deemed to have
been payable in the maximum number of installments
permitted by law and (b) there shall be included in
real estate taxes for each comparative year in which
such installments may be paid, the installments of
such assessment so becoming payable during such
comparative year, together with interest payable
during such comparative year.
(vi) The phrase "real estate taxes payable during the base
tax year" shall mean the real estate taxes payable
for the base tax year.
(vii) Tenant shall not be required to pay, as additional
rent, any increases in Real Estate Taxes which shall
result from landlord's increasing the size of the
building.
b. Real Estate Taxes:
1. In the event that the real estate taxes payable for any
comparative year shall exceed the amount of such real estate taxes payable
during the base tax year, Tenant shall pay to Landlord, as additional rent for
such comparative year, an amount equal to The Percentage of the excess. By or
after the start of the comparative year following the base tax year, and by or
after the start of each comparative year thereafter, Landlord shall furnish to
Tenant a statement of the real estate taxes payable during such comparative
year, and a statement of the real estate taxes payable during the base tax year.
If the real estate taxes payable for such comparative year exceed the real
estate taxes payable during the base tax year, additional rent for such
comparative year, in an amount equal to The Percentage of the excess, shall be
due from Tenant to Landlord, and such additional rent shall be payable by
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Tenant to Landlord within ten (10) days after receipt of the aforesaid
statement. If Landlord is permitted, by applicable law, to pay real estate taxes
in installments, Tenant shall make payments due hereunder in the same number of
installments and at the same time as such installments are payable by Landlord.
2. Should the real estate taxes payable during the base tax
year be reduced by final determination of legal proceedings, settlement or
otherwise, then, the real estate taxes payable hereunder for all comparative
years shall be recomputed on the basis of such reduction, and Tenant shall pay
to Landlord as additional rent, within ten (10) days after being billed
therefor, any deficiency between the amount of such additional rent as
theretofore computed and the amount thereof due as the result of such
recomputations. Should the real estate taxes payable during the base tax year be
increased by final determination of legal proceedings, settlement or otherwise,
then appropriate recomputation and adjustment also shall be made.
3. If, after Tenant shall have made a payment of additional
rent under this subdivision (b), Landlord shall receive a refund of any portion
of the real estate taxes payable during any comparative year after the base tax
year on which such payment of additional rent shall have been based, as a result
of a reduction of such real estate taxes by final determination of legal
proceedings, settlement or otherwise, Landlord shall within ten (10) days after
receiving the refund pay to Tenant The Percentage of the refund less The
Percentage of reasonable expenses (including reasonable attorneys' and
appraisers' fees) incurred by Landlord in connection with any such application
or proceeding. If, prior to the payment of taxes for any comparative year,
Landlord shall have obtained a reduction of that comparative year's assessed
valuation of the building project, and therefore of said taxes, then the term
"real estate taxes" for that comparative year shall be deemed to include the
amount of Landlord's reasonable expenses in obtaining such reduction in assessed
valuation, including reasonable attorneys' and appraisers' fees.
(c) In no event shall the fixed annual rent under this Lease
(exclusive of the additional rents under this Paragraph) be reduced by virtue of
this Paragraph.
(d) Upon the date of any expiration or termination of this
Lease, whether the same be the date hereinabove set forth for the expiration of
the term (hereinafter called "lease expiration date") or any prior or subsequent
date, a proportionate share of the additional rent for the comparative year
during which such expiration or termination occurs shall become due and payable
by Tenant to Landlord. The said proportionate share shall be based upon the
length of time that this Lease shall have been in existence during such
comparative year. Promptly after said expiration or termination, Landlord shall
compute the additional rent from Tenant, as aforesaid, which computations shall
either be based on that comparative year's actual figures or be an estimate
based upon the most recent statements theretofore prepared by Landlord and
furnished to Tenant under subdivisions (b) and (c) above. If an estimate is used
then Landlord shall promptly cause statements to be prepared on the basis of
that comparative year's actual figures and within ten (10) days after such
statement or statements are prepared by Landlord and furnished to Tenant,
Landlord and Tenant shall make appropriate adjustments of any estimated payments
theretofore made.
(e) Notwithstanding any expiration or termination of this
Lease prior to the Lease expiration date (except in the case of a cancellation
by
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mutual agreement, fire, condemnation, or Tenant's termination as of right)
Tenant's obligation to pay any and all additional rent under this Lease shall
continue and shall cover all periods up to the Lease expiration date. Landlord's
and Tenant's obligation to make the adjustments referred to in subdivision (d)
above shall survive any expiration or termination of this Lease.
(f) Any delay or failure of Landlord in billing for any
additional rent payable as hereinabove provided shall not constitute a waiver of
or in any way impair the continuing obligation of Tenant to pay such additional
rent hereunder.
48. COST OF LIVING ADJUSTMENTS
The annual rent reserved in this lease and payable hereunder shall be
adjusted, as of the times and in the manner set forth in this Paragraph.
(a) Definitions: For the purposes of this Paragraph the following
definitions shall apply:
(i) The term "Base Year" shall mean April 1999.
(ii) The term "Price Index" shall mean the "Consumer Price
Index" published by the Bureau of Labor Statistics of
the U.S. Department of Labor, All Items U.S. city
average, all urban consumers (presently denominated
"CPI-U") or a successor or substitute index
appropriately adjusted.
(iii) The term "Price Index for the Base Year shall mean
the average of the monthly All Items Price Indexes
for each of the 12 months of the Base Year.
(b) Effective as of each January and July subsequent to the Base Year,
there shall be made a cost of living adjustment of the annual rate payable
hereunder. The July adjustment shall be based on the percentage difference
between the Price Index for the preceding month of June and the Price Index for
the Base Year. The January adjustment shall be based on such percentage
difference between the Price Index for the Base Year, and the Price Index for
the preceding month of December.
(i) In the event the Price Index for June in any calendar
year during the term of this lease reflects an
increase over the Price Index for the Base Year, then
the annual rent herein provided to be paid as of the
July 1st following such month of June i.e. fixed
annual rent originally provided to be paid for in
this lease (unchanged by any adjustments under this
Paragraph) shall be multiplied by 100% of the
percentage difference between the Price Index for
June and the Price Index for the Base Year, and the
resulting sum shall be added to such annual rent,
effective as of such July 1st. Said adjusted annual
rent shall thereafter be payable hereunder, in equal
monthly installments, until it is readjusted pursuant
to the terms of this lease.
(ii) In the event the Price Index for December in any
calendar year during the term of this lease reflects
an increase over the Price Index for the Base Year,
then the annual rent
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herein provided to be paid as of the January 1st
following such month of December i.e. fixed annual
rent originally provided to be paid for in this lease
(unchanged by any adjustments under this Article)
shall be multiplied by 100% of the percentage
difference between the Price Index for December and
the Price Index for the Base Year, and the resulting
sum shall be added to such annual rent effective as
of such January 1st. Said adjusted annual rent shall
thereafter be payable hereunder, in equal monthly
installments, until it is readjusted pursuant to the
terms of this lease.
The following illustrates the intentions of the parties hereto as to
the computation of the aforementioned cost of living adjustment in the annual
rent payable hereunder:
Assuming that said annual rent is $10,000, that the Price Index for the
Base Year was 102.0 and that the Price Index for the month of June in a calendar
year following the Base Year was 105.0, then the percentage increase thus
reflected, i.e. 2.941% (3.0/102.0) would be multiplied by 100% of $10,000, and
said annual rent would be increased by $294.12 effective as of July 1st of said
calendar year.
In the event that the Price Index ceases to use 1967=100 as the basis
of calculation, or if a substantial change is made in terms or number of items
contained in the Price Index, then the Price Index shall be adjusted to the
figure that would have been arrived at had the manner of computing the Price
Index in effect at the date of this lease not been altered. In the event such
Price Index (or a successor or substitute index) is not available, a reliable
governmental or other non-partisan publication evaluating the information
heretofore used in determining the Price Index shall be used.
No adjustments or recomputations, retroactive or otherwise, shall be
made due to any revision which may later be made in the first published figure
of the Price Index for any month.
(c) Landlord will cause statements of the cost of living adjustments
provided in subdivision (b) to be prepared in reasonable detail and delivered to
Tenant.
(d) In no event shall the annual rent originally provided to be paid
under this lease (exclusive of the adjustments under this Paragraph) be reduced
by virtue of this Paragraph.
(e) Any delay or failure of Landlord, beyond July or January of any
year, in computing or billing for the rent adjustments hereinabove provided,
shall not constitute a waiver of or in any way impair the continuing obligation
of Tenant to pay such rent adjustments hereunder.
(f) Notwithstanding any expiration or termination of this lease prior
to the lease expiration date (except in the case of a cancellation by mutual
agreement) Tenant's obligation to pay rent as adjusted under this Paragraph
shall continue and shall cover all periods up to the lease expiration date, and
shall survive any expiration of termination of this lease.
49. ALTERATIONS
Anything in Article 3 to the contrary notwithstanding, Landlord shall
not unreasonably withhold or delay approval of written requests of Tenant to
make
7
non-structural interior alterations, decorations, additions and improvements
(herein referred to as "alterations") in the demised premises, provided that
such alterations do not adversely affect utility services or plumbing and
electrical lines or other systems of the building, and provided that all such
alterations shall be performed in accordance with the following conditions:
(a) All such alterations costing more than $10,000 shall be performed
in accordance with plans and specifications first submitted to Landlord for its
prior written approval which will not be unreasonably delayed or withheld.
(b) All alterations shall be done in a good and workmanlike manner. All
alterations shall be done in compliance with all other applicable provisions of
this Lease and with all applicable laws, ordinances, directions, rules and
regulations of governmental authorities having jurisdiction; and Tenant shall,
prior to the commencement of any such alterations, at its sole cost and expense,
obtain and exhibit to Landlord any governmental permit required in connection
with such alterations.
(c) All work in connection with alterations shall be performed with
union labor having the proper jurisdictional qualifications.
(d) Tenant shall keep the building and the demised premises free and
clear of all liens for any work or material claimed to have been furnished to
Tenant or to the demised premises.
(e) Prior to the commencement of any work by or for Tenant, Tenant
shall furnish to Landlord certificates evidencing the existence of the following
insurance:
(i) Workmen's compensation insurance covering all persons
employed for such work and with respect to whom death
or bodily injury claims could be asserted against
Landlord, Tenant or the demised premises.
(ii) General liability insurance naming Landlord, its
designees, and Tenant as insureds, with limits of not
less than $500,000 in the event of bodily injury to
one person and not less than $1,000,000 in the event
of bodily injury to any number of persons in any one
occurrence, and with limits of not less than $50,000
for property damage. Tenant, at its sole cost and
expense, shall cause all such insurance to be
maintained at all times when the work to be performed
for or by Tenant is in progress. All such insurance
shall be in a company authorized to do business in
New York and all policies, or certificates therefor,
issued by the insurer and bearing notations
evidencing the payment of premiums, shall be
delivered to Landlord.
(f) All work to be performed by Tenant shall be done in a manner which
will not unreasonably interfere with or disturb other tenants and occupants of
the building.
(g) Tenant shall not be required to remove any fixtures, panelling,
partitions, railings or other installations presently constituting a part of the
demised premises, constituting a part of the initial fitting up of the demised
premises for Tenant's occupancy or installed by Landlord at its expense.
8
(h) All trade fixtures and other movable property installed by Tenant
in the demised premises shall remain Tenant's property and shall be removed by
Tenant on or before the expiration date, provided only that Tenant shall repair
any resultant damage to the demised premises.
(i) Any alterations to be made by Tenant (other than plumbing and
electrical work) may be performed by any reputable contractor or mechanic
(collectively "Contractor") selected by Tenant and approved by Landlord, which
approval Landlord agrees it will not unreasonably withhold or delay, provided
the Contractor's performance of the alterations would not result in any labor
discord in the Building.
(j) Tenant may, at any time during the Term, remove any alteration made
by Tenant, solely at its expense, provided Tenant promptly repairs any damage
resulting from such removal.
(k) Any restoration or repair which Tenant is required to make (whether
structural or non-structural) shall be of quality or class equal to the then
Building Standard.
50. SUBLETTING AND ASSIGNMENT
Supplementing the provisions of Article 11 hereof, Landlord shall not
unreasonably withhold or delay consent to an assignment of this lease or to
subletting of all or part of the demised premises, provided that any such
assignment or subletting shall be made solely upon the following terms and
conditions:
1. No assignment and no subletting shall become effective unless and
until Tenant shall have given Landlord at least thirty (30) business days prior
written notice of such proposed assignment or proposed bona fide subletting,
together with a statement containing the name and address of the proposed
sublessee or assignee, adequate information as to its reputation and financial
condition and the intended use of the premises, and a copy of the proposed
sublease or assignment. The parties agree that if there is a proposed asignment
or a proposed subletting of all the demised premises for all or substantially
all of the balance of the term of this lease, then Landlord shall thereupon have
the option, excercisable by written notice within thirty (30) business days
after receipt of the notice from Tenant, to terminate this Lease effective as of
the effective date of the proposed assignment or the commencement date of the
term of such proposed subletting. If there is a proposed subletting of all of
the demised premises for less than substantially all of the balance of the term
of this Lease or of part but not all of the demised premises, then Landlord
shall thereupon have the option, exercisable by written notice within thirty
(30) business days after the receipt of the notice from Tenant, to delete the
space proposed to be subleased from the premises demised hereunder (with a
prorated change in all payments due hereunder for the period of such proposed
subletting) effective as of the commencement date of the term of such proposed
subletting and for the period of such proposed subletting. If Landlord shall so
terminate this Lease or delete portions of space therefrom, then Tenant shall
vacate and surrender the demised premises or the deleted space portion, to
Landlord, on or before the effective date pursuant hereto.
2. If (i) Landlord shall delete any space (the "Space") to be subleased
constituting a portion of the demised premises or shall terminate this Lease in
the event of any assignment or subletting of all the demised premises (also the
"Space") in accordance with the provisions of Paragraph 1 of this Article 50 or
(ii) Landlord shall not elect to terminate this Lease or delete portions of
Space herefrom pursuant to the provisions of Paragraph 1 and the Space is
9
sublet or assigned by Tenant in accordance with the provisions thereof, then all
rent and additional rent payable by (a) the assignee or any new tenant to whom
Landlord rents the demised premises shall be paid to Landlord, and (b) the
sublessee to whom Tenant subleases the demised premises or any portion thereof
shall be paid to Tenant. Upon receipt of such rent and additional rent for any
month, Landlord or Tenant, as the case may be, shall disburse the rent and
additional rent received from such new tenant or sublessee as follows: (i) if
received by Landlord, first to Landlord until Landlord has received the monthly
rent and additional rent which would have been paid to Landlord pursuant to this
lease by Tenant for the Space (which rent is the "Original Rent"), including
fixed annual rent, escalation rent for taxes or increases in the Consumer Price
Index and all other additional rent, including electricity, water and sprinkler
charges; (ii) if received by Tenant, first to Tenant until Tenant has been
reimbursed for the amount of the monthly Original Rent paid by Tenant to
Landlord; (iii) then, to Landlord or Tenant, whichever is appropriate, an amount
equal to the amount by which such rent and additional rent from the assignee,
subtenant or new tenant exceeds the Original Rent (which amount is hereinafter
"The Excess") until it recoups the entire cost of brokerage commissions,
installations and other costs of renting to such assignee, new tenant or
subtenant; (iv) then, to Tenant, out of The Excess, an amount equal to Tenant's
unrecouped Installation Cost (as hereinafter defined). Tenant's unrecouped
Installation Cost equals Tenant's Installation Cost times a fraction, the
numerator of which is the number of months remaining in the term of this Lease
from and after the date of assignment or subletting as if it were not terminated
or the Space sublet or assigned and the denominator of which is the number of
months during the term of this Lease (as extended by any exercised option), less
payments previously made hereunder therefor; and (v) finally, any remaining
portion of The Excess received shall be distributed 50% to Landlord and 50% to
Tenant. Tenant shall not be entitled to any payment hereunder from Landlord for
any period beyond the date this Lease would have expired or terminated, as
provided herein, had Landlord not terminated this Lease with respect to the
Space pursuant to this Article 50. If Tenant or Landlord, as the case may be,
shall receive a payment to which the other is entitled hereunder, payment to the
party entitled thereto shall be made within 10 days of receipt thereof and that
portion payable by Tenant hereunder shall be paid as additional rent in
accordance with the terms hereof.
3. There shall be no default (after notice and the expiration of any
applicable grace period) by Tenant under any of the terms, covenants and
conditions of this Lease at the time that Landlord's consent to any such
subletting or assignment is requested and on the date of the commencement of the
term of any such proposed sublease or the effective date of any such proposed
assignment.
4. Upon receiving Landlord's written consent, a duly executed copy of
the sublease or assignment shall be delivered to Landlord within thirty (30)
days after execution thereof. Any such sublease shall provide that the sublease
is subject and subordinate to this Lease. Any such assignment of lease shall
contain an assumption by the assignee of all of the terms, covenants and
conditions of this Lease thereafter to be performed by the Tenant.
5. Anything herein contained to the contrary notwithstanding:
(a) Tenant shall not publicly advertise the availability of
the demised premises for assignment or subletting at a rental rate lower than
the rental rate at which Landlord is then offering to lease comparable space in
the building (but Tenant shall not be prohibited from assigning or subletting
for less than such rental rate).
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(b) No assignment or subletting shall be made:
(i) By the legal representatives of the Tenant
or by any person whom Tenant's interest
under this Lease passes by operation of law,
except in compliance with the provisions of
this Article and Article 11 hereof; and
(ii) To any person or entity for the conduct of a
business which is not in keeping with the
standards for and general character of the
Building of which the demised premises form
a part.
(c) Tenant may not sublet a part of the Demised Premises
without the prior written consent of Landlord.
6. Anything hereinabove contained to the contrary notwithstanding,
Landlord herewith consents to assignment of this Lease or sublease of all or
part of the demised premises to any entity in which Tenant or its stockholders
own at least 51% of the beneficial interest or the parent of Tenant or to any
corporation into or with which Tenant may be merged or consolidated or to which
substantially all of its assets or stock may be transferred, provided that any
such assignment of lease shall contain an assumption by the assignee of all of
the terms, covenants and conditions of this Lease thereafter to be performed by
the Tenant. Tenant agrees that no such assignment or subletting shall be
effective unless and until Tenant gives Landlord written notice thereof,
together with a true copy of the assignment or of the sublease.
7. "Installation Cost" shall mean the cost and expenses incurred and
paid for by Tenant in performing alterations in accordance with plans and
specifications approved by Landlord for its initial occupancy as evidenced by
paid receipts for materials supplied and services rendered by independent
contractors.
8. In no event shall any permitted subleasee assign or encumber its
sublease or further sublet all or any portion of its sublet space or otherwise
suffer or permit the sublet space or any part thereof to be used or occupied by
others without Landlord's prior written consent in each instance.
51. CONTRACTORS
When in this Lease the Tenant shall take or be required to take any
action which may affect or alter the plumbing or electrical facilities or
services furnished by Landlord in the building, the demised premises, or any
portion thereof, Tenant shall only be entitled to have such work performed by
the building contractor designated from time to time by Landlord, in its sole
and absolute discretion, to perform such alteration and Landlord shall not be
required to permit, and Tenant shall not be entitled to use, any contractor not
designated by Landlord's selected contractors, provided, however, that such
contractors' bids do not exceed by more than 10% the bids for work of comparable
quality, workmanship and specifications for performing such alterations
submitted by Tenant's contractors. If Tenant's contractor's bids are more than
10% below the bids of Landlord's contractors, Landlord agrees not to
unreasonably withhold or delay approval of Tenant's contractor's performance of
such alteration.
52. EXTRA HEAT
If Tenant shall request heat for the demised premises at any time other
than when Landlord is required to furnish heat hereto, Landlord shall furnish
heat and shall be entitled to receive, as additional rent hereunder and in
11
consideration therefor, an amount computed in accordance with Landlord's
standard building rates from time to time for supplying heat. Tenant shall be
required to give prior notice to Landlord in accordance with Landlord's standard
procedure if such heat is required. Payment of the additional rent shall be made
within 10 days of Tenant being notified and billed therefor by Landlord.
Landlord represents that its current standard billing rate for supplying
overtime heat is 300/day (based upon an eight hour day).
53. CASUALTY DAMAGE
Anything in Article 9 to the contrary notwithstanding, in the event of
damage or destruction to the demised premises by fire or other casualty
(collectively "Casualty"), if the demised premises cannot be restored to
substantially their condition immediately prior to the Casualty within nine (9)
months after the occurrence of the Casualty or are not so restored within such
nine (9) month period or if Landlord shall not have commenced the restoration
work three (3) months after the occurrence of the Casualty, Tenant may terminate
the Lease, by notice sent to Landlord within fifteen (15) days of the expiration
of such nine (9) month period or of the three (3) month period if Landlord shall
not have commenced the restoration work, whichever is earlier, in which event,
the Lease shall terminate as of the date in such notice, Fixed Rent and other
amounts payable under this Lease shall be apportioned as of such date and the
parties shall have no liability for subsequently accruing obligations hereunder.
54. TENANT'S CONDEMNATION CLAIM
Anything in Article 10 to the contrary notwithstanding, Tenant shall
have the right to make a claim against the condemning authority for the value of
its trade fixtures and business machines and equipment taken in the condemnation
and for reimbursement of its resultant moving expenses.
55. ACCESS TO THE DEMISED PREMISES
Supplementing the provisions of Article 13, Landlord's right to enter
the demised premises and its access thereto to make repairs and Alterations and
to erect and maintain pipes and conduits therein (except in the event of an
emergency, in which event, such right and access shall be unrestricted) shall be
subject to the following conditions:
A. Landlord shall give Tenant reasonable advance notice of proposed
entry or access;
B. All such pipes and conduits shall be concealed in a Building
Standard manner; and
C. Landlord shall effect all such repairs and alterations and erect and
maintain all such pipes and conduits so as to minimize interference with
Tenant's normal business operations, but no provision hereof shall obligate
Landlord to perform such work other than during normal business hours unless
they materially interfere with Tenant's normal business operations.
D. Landlord's right to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or other public parts of the Building shall, at Landlord's sole cost and expense
and if the demised premises or the means of access thereto are materially
adversely affected, be subject to Tenant's prior written consent, which shall
not be unreasonably withheld, provided, however, that if such
12
change is made in compliance with any law, order or regulation of any
governmental authority having jurisdiction, the New York Board of Fire
Underwriters or similar organization, or any insurer of the Building and/or
Landlord's interest therein, Tenant's consent shall not be required.
56. LANDLORD'S PERFORMANCE OF TENANT'S OBLIGATIONS
Supplementing the provisions of Article 19, except in the event of an
emergency, Landlord shall not perform any obligation of Tenant under this Lease
nor incur any expenditure for such purpose until after the expiration of any
applicable grace period.
57. TENANT'S TAKING POSSESSION OF THE DEMISED PREMISES
Anything in Article 20 to the contrary notwithstanding, Tenant's taking
possession of the demised premises shall be conclusive evidence that the demised
premises and the Building were in good and satisfactory condition at the time
such possession was so taken, except as to latent defects and to any items as to
which Tenant notifies Landlord within thirty (30) days after initially taking
possession.
58. ACCESS
Tenant shall be entitled to have access to the demised premises 24
hours a day, 7 days a week, without additional charge, provided, however, that
Landlord shall be entitled to charge Tenant for any heating services supplied to
Tenant other than during hours and on days during which Landlord has the
obligation to supply such services pursuant to Article 31 hereof.
59. HOLIDAYS
Heat and/or manual elevator facilities shall not be provided on
holidays deemed to be commercial building contract holidays of Local 32B-32J of
Service Employees Union.
60. POSSESSION
Landlord and Tenant hereby acknowledge that the demised premises is
currently occupied by another tenant of the Building whose lease expired on
April 30,1999. Landlord hereby agrees to use its best efforts to have the
demised premises vacated by said tenant and possession delivered to Tenant by
June 1,1999. The commencement date of the term of this Lease shall be the later
of (i) June 1,1999 or (ii) the date of Landlord's delivery of possession to
Tenant. Landlord shall, in accordance with the foregoing, fix the commencement
date of the term of this Lease and revise the expiration date if the possession
date is later than June 1,1999. When the commencement date of the term of this
Lease has so been determined, the parties hereto shall within thirty (30) days
thereafter, at Landlord's request, (i) initial such revised date or dates on the
executed copies of this Lease, or (ii) execute a written agreement confirming
such dates as the dates of the commencement and expiration of the term of this
Lease. Any failure of the parties to initial or to execute such written
agreement shall not affect the validity of the commencement and the expiration
date as fixed and determined by Landlord, as aforesaid. Notwithstanding anything
contained to the contrary herein, if possession is not delivered to Tenant by
June 1,1999, Landlord nor Tenant shall not be subject to any liability and the
validity of this Lease shall not be impaired, but the expiration date of the
Lease shall be extended to coordinate with the eventual commencement date.
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61. SQUARE FOOTAGE
The Tenant does hereby acknowledge that no representations have been
made by the Landlord or anyone acting on behalf of the Landlord as to the amount
of square footage in the demised premises. The Tenant has inspected the demised
premises and relies upon its own judgement in computing the square footage.
62. INTENTIONALLY OMITTED
63. VOLATILE MATERIALS
The Tenant nor any of Tenant's servants, employees, agents, visitors or
licensees shall not bring, keep or use in or upon the demised premises or the
building of which they form a part, any solvent having a flash point below 110
degrees Farenheit, nor shall any liquid which emits volatile vapors below the
temperature of 100 degrees Farenheit be brought, kept or used in or upon the
demised premises or the building of which they form a part, except as follows:
A. The process using such liquids shall be conducted in a room of
fire resistant construction, as the same is or may hereafter
be defined by the Fire Insurance Rating Organization.
If more than one but not more than two gallons of such liquids are kept
on the premises, they shall be stored in safety cans. If more than two but less
than ten gallons of such liquids are kept on the premises, they must be stored
in safety cans and kept in a cabinet constructed by Tenant in a manner approved
by the Fire Insurance Rating Organization. Reasonable amounts in excess of ten
gallons may be kept provided they are stored in a vault constructed by Tenant in
a manner approved by said Organization.
Any use or storage of such liquids shall at all times be in accordance with the
requirements of the Fire Department Board of Fire Underwriters and the Fire
Insurance Rating Organization.
A breach of the aforesaid regulations shall be deemed a default of this lease
under Paragraph 17 hereof.
64. SECURITY
Tenant shall deposit with Landlord the sum of $44,000 upon the signing
of this lease as security for the faithful performance and observance by Tenant
of the terms, provisions and conditions of this lease. It is agreed that in the
event Tenant defaults in respect of any of the terms, provisions and conditions
of this lease, including but not limited to, the payment of rent and additional
rent, Landlord may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional rent
or any other sum which Landlord may expend or may be required to expend by
reason of Tenant's default in respect of any of the terms, covenants and
conditions of this lease, including but not limited to, any damages or
deficiency in the reletting of the premises, whether such damages or deficiency
accrued before or after summary proceedings or other re-entry by Landlord. In
the event that Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security shall be
returned to Tenant after the date fixed as the end of the Lease and after
delivery of entire possession of the demised premises to Landlord. In the event
of a sale of the land and building or leasing of the building, of which
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the demised premises form a part, Landlord shall have the right to transfer the
security to the vendee or lessee upon written notice to Tenant and Landlord
shall thereupon be released by Tenant from all liability for the return of such
security; and Tenant agrees to look to the new Landlord solely for the return of
said security; and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Landlord.
Tenant further covenants that it will not assign or encumber or attempt
to assign or encumber the monies deposited herein as security and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
All interest and/or dividends, if any, accruing on the security
deposited, whether in cash or otherwise as aforesaid, shall remain Tenant's
property* and, provided Tenant is not in default in the performance of the
terms, conditions and covenants of this lease, shall be paid to Tenant after
each calendar year during the term, provided, however, that Tenant shall make a
written demand therefor no later than January 31st in each year.
* Less standard management charge of 1%.
65. EXTERMINATION
Tenant at its sole cost and expense shall maintain such extermination
services as are necessary to keep the demised premises free of pests and vermin
at all times.
66. ODORS
Tenant shall not cause or permit any unusual or objectionable odors,
by-products or waste material to permeate from the demised premises. Tenant
covenants that it will hold Landlord harmless against all claims, damages or
causes of action for damages arising after the commencement of the term of this
lease and will indemnify the Landlord for all such suits, orders or decrees and
judgments entered therein, brought on account of any such permeation from the
demised premises of the said unusual or objectionable odors, by-products or
waste material, and, in addition, Tenant covenants to pay any attorneys' fees
and other legal expenses made necessary in connection with any claim or suit as
aforesaid, unless caused by the negligence of the Landlord, its servants or
employees, all provided, however, that Tenant is given immediate written notice
thereof with the opportunity to defend by attorneys of its designation and that
Landlord cooperates in said defense.
For the purpose of eliminating any such odors, waste material or by
products, Tenant may erect and maintain such facilities and appurtenances as may
be necessary to eliminate any such odors, by-products, or waste materials. All
such facilities or appurtenances shall be erected at Tenant's sole cost and
expense, shall be in accordance with applicable laws, orders and regulations of
all governmental authorities and the New York Board of Fire Underwriters as set
forth in Paragraph 6 of this lease.
67. FLOOR LOAD
Tenant shall not place a load upon any floor of the demised premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Tenant agrees to position all machines, safes, business
machines, printing equipment or other mechanical equipment in such locations as
to minimize noise and vibration emanating therefrom. All of such installations
shall be placed and maintained by Tenant, at Tenant's sole
15
expense, in setting sufficient, in Landlord's sole judgment, to absorb and
prevent vibration, noise and annoyance to other Tenants in Landlord's building.
All of such machines and/or equipment installed by Tenant in the
demised premises will not at any time be in violation of existing laws affecting
the demised premises or in violation of the certificate of occupancy issued for
the building of which the demised premises are a part.
68. PLATE GLASS
Tenant, at its own cost and expense, shall replace all damaged or
broken plate glass or other glass in or about the demised premises. All existing
broken plate glass shall be repaired by Landlord prior to Tenant's occupancy.
69. BROKER
Tenant warrants that it has dealt with no real estate broker other than
Helmsley Spear, Inc. and The Staubach Company in negotiating this lease and
hereby agrees to indemnify and hold harmless Landlord in the event that claims
for brokerage are made by any other broker.
70. "AS IS"
Notwithstanding any provisions to the contrary, Tenant agrees to accept
premises in "as is" condition except that Landlord shall deliver the demised
premises in "broom clean" condition.
71. EFFECT OF CONVEYANCE, ETC.
If the building containing the premises shall be sold, transferred or
leased, or the lease thereof transferred or sold, Landlord shall be relieved of
all future obligations and liabilities hereunder and the purchaser, transferee
or lessee of the building shall be deemed to have assumed and agreed to perform
all such obligations and liabilities of Landlord hereunder. In the event of such
sale, transfer or lease, Landlord shall also be relieved of all existing
obligations and liabilities hereunder, provided that the purchaser, transferee
or lessee of the building assumes in writing such obligations and liabilities.
72. ELECTRIC POWER
Tenant hereby agrees to obtain electric power at its own cost and
expense directly from the public utility servicing the demised premises.
73. HOLDING OVER
If Tenant holds over in possession after the expiration or sooner
termination of the original term or of any extended term of this lease, such
holding over shall not be deemed to extend the term or renew the lease, but such
holding over hereafter shall continue upon the covenants and conditions herein
set forth except that the charge for use and occupancy of such holding over for
each calendar month or part thereof (even if such part shall be a small fraction
of a calendar month) shall be the sum of:
a. 1/12 of the highest annual rent rate set forth on page one of
this lease, times 1.5 plus
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b. 1/12 of the net increase, if any, in annual fixed rental due
solely to increases in the cost of the value of electric
service furnished to the premises in effect on the last day of
the term of the lease, plus
c. 1/12 of all other items of annual additional rental, which
annual additional rental would have been payable pursuant to
this lease had this lease not expired, plus
d. those other items of additional rent (not annual additional
rent) which would have been payable monthly pursuant to this
lease, had this lease not expired,which total sum Tenant
agrees to pay to Landlord promptly upon demand, in full,
without set-off or deduction. Neither the billing nor the
collection of use and occupancy in the above amount shall be
deemed a waiver of any right of Landlord to collect damages
for Tenant's failure to vacate the demised premises after the
expiration or sooner termination of this lease. The aforesaid
provisions of this Article shall survive the expiration or
sooner termination of this lease.
74. LANDLORD'S COSTS BY TENANT'S DEFAULTS
If Landlord, as a result of a default by Tenant of any of the
provisions of this lease, including the covenants to pay rent and/or additional
rent, makes any expenditure or incurs any obligations for the payment of money,
including but not limited to attorney's fees, in instituting, prosecuting or
defending any action or proceeding, such sums so paid or obligations so incurred
with interest and costs shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Landlord within five (5) days of rendition of any
xxxx or statement to Tenant therefore, and if any expenditure is incurred in
collecting such obligations, such sum shall be recoverable by Landlord as
additional damages.
75. NO ORAL AGREEMENTS
This lease together with riders attached, contains the complete
arrangement between the Landlord and Tenant in its entirety with respect to the
premises leased herein, and cannot be changed, modified or terminated orally.
There are no representations, agreements, arrangements or understandings oral or
written, between Landlord and Tenant up to the date of this lease, which are not
fully contained herein.
76. NOTICES
Any notices or other communication relative to this lease shall be in
writing and shall be considered given when mailed by registered or certified
mail, return receipt requested, to the respective party at its address herein
set forth as at such other address as either party may designate by notice given
in accordance with this paragraph. All payments of rent or additional rents due
under this lease shall be mailed in accordance with this paragraph, by regular
mail or delivered by hand as Landlord may designate.
77. BUILDING ALTERATIONS AND MANAGEMENT
Landlord 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
17
known. There shall be no allowance to Tenant for diminution of rental value and
no liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from Landlord or other Tenant making any repairs in
the building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Landlord by reason of Landlord's
imposition of any controls of the manner of access to the building by Tenant's
social or business visitors as the Landlord may deem necessary for the security
of the building and its occupants.
78. DIRECTORY BOARD LISTING
If, at the request of and as accomodation to Tenant, Landlord shall
place upon the directory board in the lobby of the building one or more names of
persons other than Tenant, such directory board listing shall not be construed
as the consent by Landlord to an assignment or subletting by Tenant to such
person or persons.
79. PORNOGRAPHIC USES PROHIBITED
Tenant agrees that the value of the demised premises and the reputation
of the Landlord 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, manufacture, or permit any obscene or
pornographic material on the premises, and shall not permit or conduct any
obscene, nude or seminude live performances on the premises, nor permit use of
the premises for nude modeling, rap sessions, or as a so-called "rubber goods"
shop, or as a sex club of any sort, or as a "massage parlor", or for any similar
use. 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 violations shall be deemed
a breach of a substantial obligation of the term 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 New York State Penal Law 235.00.
80. RENT CONTROL
If the fixed annual rent or additional rent or any part thereof
provided to be paid by Tenant under the provisions of this lease during the
demised term shall become uncollectible or shall be reduced or required to be
reduced or refunded by virtue of any Federal, State, County or City law, order
or regulation or by any direction of a public officer or body pursuant to law or
the orders, rules, code or regulations of any organization or entity formed
pursuant to law, whether such organization or entity be public or private, then
Landlord, at its option, may at any time thereafter terminate this lease, by not
less than thirty (30) days' written notice to Tenant, on a date set forth in
said notice, in which event this lease and the term hereof shall terminate and
come to an end on the date fixed in said notice as if the said date were the
date originally fixed herein for the termination of the demised term. Landlord
shall not have the right so to terminate this lease if Tenant within such period
of thirty (30) days shall in writing lawfully agree that the rentals herein
reserved are a reasonable rental and agree to continue to pay said rentals, and
if such agreement by Tenant shall then be legally enforceable by Landlord.
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81. LATE PAYMENTS
Tenant acknowledges that monthly rental and additional rental payments
are due on or before the first day of each month. Tenant shall herein be
permitted to make such payments up to the tenth day of each month without
additional charge. In the event that, during any calendar year, Tenant fails to
make such payments of any portion of rents due by the tenth day of each month,
Landlord shall, for each lateness after the first occurrence, be permitted to
charge Tenant as additional rent, the sum of $250 as liquidated damages and not
as a penalty, which Tenant agrees to pay within fifteen (15) days of receipt of
invoice.
82. FURTHER PROVISIONS AS TO DEFAULT
All sums of money, other than the Fixed Rental reserved in this lease,
that shall become due from and payable by Tenant to Landlord hereunder shall
constitute Additional Rental, for default in the payment of which Landlord shall
have the same remedies as for a default in the payment of Fixed Rental.
If Tenant is late in making any payments due to Landlord from Tenant
under this Lease for forty-five (45) or more days, then interest shall become
due and owing to Landlord on such payment from the date forty-five (45) days
after which it was due, which interest shall be computed at the following rates:
(i) for an individual or partnership tenant, computed at
the maximum lawful rate of interest;
(ii) for a corporate tenant, computed at the greater of
(a) two and 00/100 (2.00%) percent per month or (b)
three (3%) percent per annum over the prime rate of
Chase Manhattan Bank, N.A., but in no event in excess
of the maximum lawful rate of interest chargeable to
corporations in the State of New York.
Bills for any expenses incurred by Landlord in connection with any
performance by it for the account of Tenant after a default hereunder beyond the
applicable grace period, and bills for all costs, expenses and disbursements of
every kind and nature whatsoever, including reasonable counsel fees involved in
collecting or endeavoring to collect the Fixed Rental or Additional Rental or
any part thereof, enforcing or endeavoring to enforce any right against Tenant,
under or in connection with this lease, or pursuant to law, including any such
cost, expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material labor, or services
provided, furnished, or rendered, by Landlord at Tenant's instance to Tenant,
may be sent by Landlord to Tenant monthly, or immediately, at Landlord's option,
and shall be due and payable in accordance with the terms of such bills.
83. HAZARDOUS MATERIALS
Tenant shall not (either with or without negligence) cause or permit
the introduction, placement, use, storage, manufacture, transportation, release
or disposition of any biologically or chemically active or other hazardous
substances or materials, without the prior written consent of Landlord, which
consent may be withheld in the sole and absolute discretion of Landlord without
any requirement of reasonableness in the exercise of that discretion. The
foregoing notwithstanding, Tenant may use de minimus quantities of the types of
materials which are technically classified as hazardous materials but are
commonly used in its business to the extent the same are not used in an amount
19
which, either individually or cumulatively, would either exceed the quantities
typical for ordinary use of the premises as such use is defined elsewhere in
this Lease or would be a "reportable quantity" under any applicable federal,
state or local law or regulation. With respect to such de minimus quantities of
such materials, Tenant shall not allow the storage or use of such substances or
materials in any manner not sanctioned by law or by the highest standards
prevailing in the industry for the storage and use of such substances or
materials. Without limitation, hazardous substances and materials shall include
those described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. section 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. section 6901 et seq., any
applicable state or local laws and the regulations adopted under these acts. If
any lender or governmental agency shall ever require testing to ascertain
whether or not there has been any release of hazardous materials, then the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand
as additional rent if such requirement (i) applies to the premises or (ii) is
imposed due to Tenant's representation and the like from time to time at
Landlord's request concerning Tenant's best knowledge and belief regarding the
presence of hazardous substances or materials on the demised premises. In all
events, Tenant shall indemnify and hold harmless Landlord in the manner
elsewhere provided in this Lease from and against all liability, damages, costs,
claims, judgments and expenses arising out of or relating to the presence, use
or release of hazardous materials on the demised premises occurring while Tenant
is in possession, or elsewhere if caused by Tenant or persons acting under
Tenant. The within covenants shall survive the expiration or earlier termination
of the Lease term.
84. LOBBY ATTENDANT
In the event Landlord elects to maintain lobby attendant service in the
passenger lobby of the Building, Tenant agrees to pay to Landlord a sum which
shall represent its proportionate share of eight and 33/100 (8.33%) of
Landlord's total cost of maintaining such lobby attendant service. This sum
shall be payable as additional rent due under this Lease. As the cost of
maintaining such lobby attendant shall increase or decrease, so shall the above
mentioned charge be adjusted proportionate to the increase or decrease in the
total cost of maintaining such lobby attendant service.
85. AMERICANS WITH DISABILITIES ACT
(a) Notwithstanding any provision of this Lease to the contrary, Tenant
shall, at its expense, subject to all of the provisions of this Lease, comply
with all aspects of the Americans with Disabilities Acts, as now or hereafter
constituted (the "ADA"), with respect to the demised premises, whether or not
such compliance is required as the result of Tenant's business or Tenant's use
or manner of use of the demised premises or the Building (including the use
permitted under this Lease), and whether or not such compliance requires
structural changes to the demised premises. If Tenant's business or Tenant's use
or manner of use requires changes to any portion of the Building or areas
adjacent to the Building in order to comply with the ADA, Landlord shall have
the option of either terminating this Lease (in which event this Lease shall end
on the 30th day following Landlord's notice, without further liability or
obligation of Landlord or Tenant, beyond that date) or performing those changes
at Tenant's expense (in which event, Tenant shall pay Landlord for the expense
of the changes, plus 21% of the expense, in installments, in advance, as the
work is performed).
(b) Nothwithstanding any right of Tenant under this Lease to the
contrary, Tenant shall take no action which would, as the result of that
20
action, require any changes to the demised premises or the building under the
ADA.
(c) Tenant shall indemnify, defend and hold harmless Landlord from and
against any claims, actions or proceedings, and all losses, damages,
liabilities, costs and expenses (including, without limitation, attorneys' fees)
in connection therewith, arising out of Tenant's failure to comply with the ADA
or this Article.
86. APPLICATION OF PAYMENTS
Any rent, additional rent, fees, charges or expenses hereunder shall be
paid by Tenant pursuant to the terms of this Lease. However, in the event that
Tenant is in default in payment of any rent, additional rent, fees, charges or
expenses, Landlord shall have the right to apply any payment received from
Tenant hereunder, regardless of any annotation or demand for specific
application on the part of Tenant, to any rent, additional rent, fees, charges
or expenses which are in arrears. The application of the payment shall be made
in the sole discretion of Landlord, so long as the payment is applied to the
payment of money due and owing by Tenant to Landlord hereunder.
87. AIR CONDITIONING
Tenant herein agrees that the payment for the cost of electric power
consumed by the air conditioning system, if any, shall be the responsibility of
the Tenant.
During the term of this Lease, the air conditioning system, if any, and
any new air conditioning system installed by Tenant shall be owned by the
Landlord and shall be surrendered to the Landlord at the expiration of the Lease
in good working order. The Tenant agrees to maintain the system and provide
periodic service thereto but not less than once per year at its sole cost and
expense and Tenant shall make replacements of parts to the air conditioning unit
as they may become necessary during the term of this Lease.
Tenant shall not be permitted to install window air conditioning units
in the windows facing 00xx Xxxxxx under any circumstances. Landlord makes no
representations or warranties regarding the existing air conditioning system, if
any.
88. LANDLORD'S APPROVALS
Whenever Tenant shall submit to Landlord any plan, agreement or other
document for Landlord's consent or approval and Landlord shall require the
expert opinion of Landlord's counsel or architect as to the form or substance
thereof, Tenant agrees to pay the reasonable fee of such architect and/or
counsel for the reviewing of said plan, agreement or document.
89. SIGNAGE
Tenant shall be allowed three (3) listings in the Building's lobby
directory for which it agrees to pay to Landlord a one time charge which shall
not exceed Landlord's cost per listing requested. No other signs or advertising
of any kind will be permitted in the lobby.
Tenant shall be permitted to display upon the entrance door to the
demised premises a sign of size, material and design equivalent to building
standard. Tenant agrees to submit the text and design of such door sign to
Landlord for Landlord's reasonable approval.
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Landlord reserves the right to change building standard from time to
time and to change signs and listings to comply with building standard. In no
instance will Tenant be permitted to display any signs or advertising in the
windows of the Building.
90. DEFAULT IN THE PAYMENT OF RENT
Notwithstanding any provisions contained herein to the contrary, and
without waiving Landlord's right to commence summary eviction proceedings for
non-payment of rent, the Landlord, at Landlord's sole discretion, shall have the
option of exercising the provisions of this paragraph. In the event Tenant
defaults in fulfilling the covenant to make timely payment of rent in any month,
it being understood that rent is due in advance on the first day of each month,
the Landlord may send the Tenant three (3) days notice in writing as required by
law specifying a default in the payment of rent and upon expiration of said
three (3) days, if Tenant shall have failed to make payment of the rent and
thereby remedy the default, then the Landlord may send to the Tenant a written
three (3) days notice by certified mail of cancellation of this Lease, and upon
expiration of said three (3) days, this Lease and the term thereunder shall end
and fully expire as 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 premises to
the Landlord. The effective date of each notice heretofore referred to shall be
the date of mailing, regardless of the date received by the Tenant. The
inclusion of the provisions of this paragraph represent a significant inducement
for the Landlord to enter into this lease agreement. The Tenant is entitled to
the grace periods set forth herein.
91. DEMAND FOR RENT
Notwithstanding anything herein to the contrary, the Tenant
specifically agrees to waive any right to a demand in writing and acknowledges
that notwithstanding any notice provision contained herein to the contrary, the
Landlord may orally demand the rent and commence a summary non-payment
proceeding based upon an oral demand regardless of any notice provision
contained herein. The Tenant waives any and all rights to receive a demand for
rent other than as required by the applicable law, RPAPL 711(2). It is
specifically agreed by the Landlord and the Tenant that the notice provisions of
this Lease shall not pertain to and shall exclude any requirement to serve a
demand notice prior to the commencement of a non-payment summary proceeding. The
notice provisions of this Lease do not obligate the Landlord in any manner or
form to send a notice or demand in writing prior to the commencement of a
non-payment summary proceeding except as specifically required by law. The
Tenant fully understands and agrees that the Landlord pursuant to RPAPL 711(2)
may demand the rent either orally or in writing and that the Landlord shall not
be required to make such a demand in writing despite any notice provisions in
the Lease to the contrary.
92. FREE RENT
Notwithstanding anything contained to the contrary herein, Tenant shall not
be obligated to pay base annual rent for the month of June 1999 and Tenant shall
be entitled to rent credits in the amount of $5,561.11 for the month of August
1999, $5,561.11 for the month of February 2000 and $5,561.11 for the month of
June 2000. Notwithstanding anything contained to the contrary herein, if Tenant
shall be in monetary default of the Lease at the time Tenant is entitled to
receive a rent credit hereunder, then said rent credit shall be waived by Tenant
and shall not be given.
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93. TENANT IMPROVEMENTS
As an inducement for Landlord to enter into this Lease, Tenant represents
and warrants that it shall spend at least thirty thousand ($30,000) dollars on
hard construction costs improving the demised premises. Over and above said
$30,000, Tenant shall repaint and install new flooring in the demised premises.
Tenant shall deliver invoices marked paid to Landlord as evidence of compliance
with this paragraph.
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[1] which shall not be unreasonably withheld.
[2] not be responsible to
[3] reasonable wear and tear expected. Except those improvements approved by
Landlord pursuant to Article 49.
[4] except for ordinary wear and tear
[5] through no fault of Landlord
[6] for Landlord to repair
[7] and make structural repairs within the Demised Premises arising from
ordinary wear and tear or through causes Tenant has no control
[8] unless caused by or due to the negligence of the Owner, its agents,
servants or employees.
[9] which shall not be unreasonably withheld
[10] provided that the failure to interpose such a counterclaim would not waive
Tenant's right to pursue such right of action.
AGREEMENT
Agreement dated May ___, 1999 by Xxxx Xxxxxx residing at
_________________________________________("Principal");
RECITALS
A. YouNetwork Corporation ("Tenant"), a New York corporation, is about
to enter into a lease of even date herewith (the "Lease"), between Waltox
Corporation, N.V. ("Landlord"), as Landlord and Tenant, as Tenant, covering
premises (the "Demised Premises") located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX.
B. Landlord does not desire to have Principal guarantee the obligations
of Tenant under the Lease. Landlord is concerned, however, that if Tenant
defaults under the Lease, Tenant may continue to occupy the Demised Premises, to
the detriment of Landlord. Therefore, in order to avoid that situation, Landlord
has requested Principal to guarantee to Landlord that if Tenant defaults under
the Lease, Tenant will vacate the Demised Premises. The result being that if
Tenant vacates the Demised Premises at the time of the default, Principal will
have no obligation or liability under this Agreement (although the obligation
and liability of Tenant under the Lease will continue in accordance with the
Lease).
C. Accordingly, Principal agrees as follows:
1. Until Tenant vacates the entire Demised Premises (for any reason and
at any time), Principal guarantees to Landlord the payment and performance of
Tenant's obligations under and in accordance with the Lease, including, without
limitation, the payment of fixed and additional rent (the "Obligations"), so
that Principal will have no obligation or liability for obligations which accrue
under the Lease following the date Tenant vacates the entire Demised Premises.
If, however, Tenant defaults and does not vacate the entire Demised Premises,
then until Tenant does vacate, Landlord may, at its option, proceed against
Principal and Tenant, jointly and severally, or Landlord may proceed against
Principal under this Agreement without commencing any suit or proceeding of any
kind against Tenant, or without having obtained any judgment against Tenant.
2. The obligations of Principal under this Agreement are unconditional,
are not subject to any set-off or defense based upon any claim Principal may
have against Landlord, and will remain in full force and effect without regard
to any circumstance or condition, including, without limitation: (a) any
modification or extension of the Lease (except that the liability of Principal
hereunder will apply to the Lease as so modified or extended); (b) any exercise
or non-exercise by Landlord of any right or remedy in respect of the Lease, or
any waiver, consent or other action, or omission, in respect of the Lease; (c)
any transfer by Landlord or Tenant in respect of the Lease or any interest in
the Demised Premises; (d) any bankruptcy, insolvency, receivership,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding involving or affecting Landlord or Tenant
or their obligations, properties or creditors, or any action taken with respect
to such obligations or properties of the Lease, by any Trustee or receiver of
Landlord or Tenant, or by any court, in any such proceeding; (e) any defense to
or limitation on the liability or obligations of Tenant under the Lease, or any
invalidity or unenforceability, in whole or in part, of any obligation of Tenant
under the Lease or of any term of the Lease; or (f) any transfer by Principal of
any or all of the capital stock of Tenant or the control thereof.
3. Principal waives presentment and demand for payment, notice of
non-payment or non-performance, and any other notice or demand to which
Principal might otherwise be entitled.
4. If judgment is entered against Principal in any action, suit or
proceeding to enforce this Agreement, Principal will reimburse Landlord for all
costs and expenses incurred by Landlord in connection, therewith, including,
without limitation, reasonable attorneys' fees.
5. Principal and Landlord each waive trial by jury of all issues arising
in any action, suit or proceeding to which Landlord and Principal may be parties
in connection with this Agreement.
6. Principal, at its expense, will execute, acknowledge and deliver all
instruments and take all action as Landlord from time to time may request for
the assuring to Landlord the full benefits intended to be created by this
Agreement.
7. No delay by Landlord in exercising any right under this Agreement nor
any failure to exercise the same will waive that right or any other right.
8. Any notice or other communication hereunder must be in writing and will
be deemed duly served on the date it is mailed by registered or certified mail
in any post office station or letter box in the continental United States,
addressed if to Principal, to it at the address or Principal set forth herein or
such other address as Principal shall have last designated by notice to
Landlord, and addressed if to Landlord, to it at the address set forth above or
such other address as Landlord shall have last designated by notice to
Principal.
9. This Agreement may not be modified or terminated orally or in any
manner other than by an agreement in writing signed by Principal and Landlord,
or their respective successors and assigns.
10. This Agreement and any issues arising hereunder will be governed by the
laws of the State of New York.
11. All remedies of Landlord by reason of this Agreement are separate and
cumulative remedies and no one remedy, whether exercised by Landlord or not,
will be in exclusion of any other remedy of Landlord and will not limit or
prejudice any other legal or equitable remedy which Landlord may have.
12. If any provision of this Agreement or the application thereof to any
person or circumstance will to any extent be held unenforceable, the remainder
of this Agreement or the application of such provision to persons or
circumstances other than those as to which it is held unenforceable, will not be
affected thereby, and each provision of this Agreement shall be valid and
unenforceable to the fullest extent permitted by law.
13. This Agreement will inure to the benefit of and may be enforced by
Landlord and its successors or assigns, and will be binding upon and enforceable
against Principal and its successors, assigns, heirs and personal
representatives. If there is more than one Principal, Principal's obligations
and liabilities under this Agreement will be joint and several.
IN WITNESS WHEREOF, Principal has duly executed this Agreement as of the
day and year first above written.
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