STANDARD FORM OF OFFICE LEASE The Real Estate Board of New York, Inc.
Exhibit
10.28
STANDARD
FORM OF OFFICE LEASE
The
Real Estate Board of New York, Inc.
Agreement
of Lease,
made as
of this 12 day of Sept, 1996, between
XXXXXX
X. DAY REALTY CORP.,
as
agent, for 000 Xxxxx Xxxxxx Associates, having an office at 0 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
party
of
the first part, hereinafter referred to as OWNER, and
ASSET
ALLIANCE CORPORATION,
a
Delaware corporation
having
a
place of business at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
party
of
the second part, hereinafter referred to as TENANT,
Witnesseth:
Owner
hereby leases to Tenant and Tenant hereby hires from Owner
a
portion
of the 16th Floor as shown on the attached Floor Plan
in
the
building known as 000 Xxxxx Xxxxxx
in
the
Borough of Manhattan, City of New York, for a term of:
Ten
years
(or until such term shall sooner cease and expire as hereinafter provided)
to
commence on November 1, 1996 (the “Commencement Date”) and to end on October 31,
2006, both dates inclusive, at an annual rental rate of: One Hundred Thirty-one
Thousand One Hundred Eighty and no/100 ($131,180.00) Dollars per annum, subject
to the concession set forth in Article 67 below, 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 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 the demised premises for executive offices and for no
other
purpose.
Tenant
Alterations: 3.
Tenant
shall make no changes in or to the demised premises of any nature without
Owner’s prior written consent. Subject to the prior written consent of Owner,
and to the provisions of this article. Tenant, at Tenant’s expense, may make
alterations, installations, additions or improvements which are non-structural
and which do not affect utility services or plumbing and electrical lines,
in or
to the interior of the demised premises by using contractors or mechanics first
approved in each instance by Owner. Tenant shall, before making any alterations,
additions, installations or improvements, at its expense, obtain all permits,
approvals and certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval thereof and shall
deliver promptly duplicates of all such permits, approvals and certificates
to
Owner and Tenant agrees to carry and will cause Tenant’s contractors and
sub-contractors to carry such xxxxxxx’x compensation, general liability,
personal and property damage insurance as Owner may 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. 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;1
the same
shall be removed from the premises by Tenant prior to the expiration of the
lease, at Tenant’s expense. Nothing in this Article shall be construed to give
Owner title to or to prevent Tenant’s removal of trade fixtures, moveable office
furniture and equipment, but upon removal of any such from the premises or
upon
removal of other installations as may be required by Owner, Tenant shall
immediately and at its expense, repair and restore the premises to the condition
existing prior to installation and repair any damage to the demised premises
or
the building due to such removal. All property permitted or required to be
removed, by Tenant at the end of the term remaining in the premises after
Tenant’s removal shall be deemed abandoned and may. at the election of Owner,
either be retained as Owner’s property or may be removed from the premises by
Owner, at Tenant’s expense.
Maintenance
and Repairs: 4.
Tenant
shall, throughout the term of this lease, take good care of the demised premises
and the fixtures and appurtenances therein. Tenant shall be responsible for
all
damage or injury to the demised premises or any other part of the building
and
the systems and equipment thereof, whether requiring structural or nonstructural
repairs caused by or resulting from carelessness, omission, neglect or improper
conduct of Tenant, Tenant’s subtenants, agents, employees, invitees or
licensees, or which arise out of any work, labor, service or equipment done
for
or supplied to Tenant or any subtenant or arising out of the installation,
use
or operation of the property or equipment of Tenant or any subtenant. Tenant
shall also repair all damage to the building and the demised premises caused
by
the moving of Tenant’s fixtures, furniture and equipment. Tenant shall promptly
make, at Tenant’s expense, all repairs in and to the demised premises for which
Tenant is responsible, using only the contractor for the trade or trades in
question, selected from a list of at least two contractors per trade submitted
by Owner. Any other repairs in or to the building or the facilities and systems
thereof for which Tenant is responsible shall be performed by Owner at the
Tenant’s expense. Owner shall maintain in good working order and repair the
exterior and the structural portions of the building, including the structural
portions of its demised premises, and the public portions of the building
interior and the building plumbing, electrical, heating and ventilating systems
(to the extent such systems presently exist) serving the demised premises.
Tenant agrees to give prompt notice of any defective condition in the premises
for which Owner may be responsible hereunder. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Owner
by
reason of inconvenience, annoyance or injury to business arising from Owner
or
others making repairs, alterations, additions or improvements in or to any
portion of the building or the demised premises or in and to the fixtures,
appurtenances or equipment thereof. It is specifically agreed that Tenant shall
not be entitled to any setoff or reduction of rent by reason of any failure
of
Owner to comply with the covenants of this or any other article of this Lease.
Tenant agrees that Tenant’s sole remedy at law in such instance will be by way
of an action for damages for breach of contract. The provisions of this Article
4 shall not apply in the case of fire or other casualty which are dealt with
in
Article 9 hereof.2
2
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
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, Floor Loads: 6.
Prior to
the commencement of the lease term, if Tenant is then in possession, and at
all
times thereafter, Tenant, at Tenant’s sole cost and expense, shall promptly
comply with all present and future laws, orders and regulations of all state,
federal, municipal and local governments, departments, commissions and boards
and any direction of any public officer pursuant to law, and all orders, rules
and regulations of the New York Board of Fire Underwriters, 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, (including Tenant’s permitted use) or,
with respect to the building if arising out of Tenant’s use or manner of use of
the premises or the building (including the use permitted under the lease).
Nothing herein shall require Tenant to make structural repairs or alterations
unless Tenant has, by its manner of use of the demised premises or method of
operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto. Tenant may, after securing
Owner to Owner’s satisfaction against all damages, interest, penalties and
expenses, including, but not limited to, reasonable attorneys’ fees, by cash
deposit or by surety bond in an amount and in a company satisfactory to Owner,
contest and appeal any such laws, ordinances, orders, rules, regulations or
requirements provided same is done with all reasonable promptness and provided
such appeal shall not subject Owner to prosecution for a criminal offense or
constitute a default under any lease or mortgage under which Owner may be
obligated, or cause the demised premises or any part thereof to be condemned
or
vacated. Tenant shall not do or permit any act or thing to be done in or to
the
demised premises which is contrary to law, or which will invalidate or be in
conflict with public liability, fire or other policies of insurance at any
time
carried by or for the benefit of Owner with respect to the demised premises
or
the building of which the demised premises form a part, or which shall or might
subject Owner to any liability or responsibility to any person or for property
damage. Tenant shall not keep anything in the demised premises except as now
or
hereafter permitted by the Fire Department, Board of Fire Underwriters, Fire
Insurance Rating Organization or other authority having jurisdiction, and then
only in such manner and such quantity so as not to increase the rate for fire
insurance applicable to the building, nor use the premises in a manner which
will increase the insurance rate for the building or any property located
therein over that in effect prior to the commencement of Tenant’s occupancy.
Tenant shall pay all costs, expenses, fines, penalties, or damages, which may
be
imposed upon Owner by reason of Tenant’s failure to comply with the provisions
of this article and if by reason of such failure the fire insurance rate shall,
at the beginning of this lease or at any time thereafter, be higher 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” of rate for the building or demised premises issued by the New York
Fire Insurance Exchange, or other body making fire insurance rates applicable
to
said premises shall be conclusive evidence of the facts therein stated and
of
the several items and charges in the fire insurance rates then applicable to
said premises. Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot area which it was designed
to
carry and which is allowed by law. Owner reserves the right to prescribe the
weight and position of all safes, business machines and mechanical equipment.
Such installations shall be placed and maintained by Tenant, at Tenant’s
expense, in settings sufficient, in Owner’s judgment, to absorb and prevent
vibration, noise and annoyance.
3
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 of
subordination shall be required by any ground or underlying lessor or by any
mortgagee, affecting any lease or the real property of which the demised
premises are a part. In confirmation of such subordination, Tenant shall from
time to time execute promptly any certificate that Owner may
request.
Property
Loss, Damage Reimbursement 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 will not be liable for any such damage caused by other tenants
or
persons in, upon or about said building or caused by operations in construction
of any private, public or quasi-public work. If at any time any windows of
the
demised premises are temporarily closed, darkened or bricked up (or permanently
closed, darkened or bricked up, if required by 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 attorneys’ fees,
paid, suffered or incurred as a result of any breach by Tenant, Tenant’s agents,
contractors, employees, invitees, or licensees, of any covenant or condition
of
this lease, or the carelessness, negligence or improper conduct of the Tenant,
Tenant’s agents, contractors, employees, invitees or licensees. Tenant’s
liability under this lease extends to the acts and omissions of any sub-tenant,
and any agent, contractor, employee, invitee or licensee of any sub-tenant.
In
case any action or proceeding is brought against Owner by reason of any such
claim, Tenant, upon written notice from Owner, will, at Tenant’s expense, resist
or defend such action or proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
4
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
Landlord’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
moveable equipment, furniture, and other property. Tenant’s liability for rent
shall resume five (5) days after written notice from Owner that the premises
are
substantially ready for Tenant’s occupancy, (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 releasers’ insurance policies
contain a clause providing that such a release or waiver shall not invalidate
the insurance. If, and to the extent, that such waiver can be obtained only
by
the payment of additional premiums, then the party benefiting from the waiver
shall pay such premium within ten (10) 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.3
5
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 and assigns to Owner, Tenant’s entire interest in
any such award. Tenant shall have the right to make an independent claim to
the
condemning authority for the value of Tenant’s moving expenses and personal
property, trade fixtures and equipment, provided Tenant is entitled pursuant
to
the terms of the lease to remove such property, trade fixture and equipment
at
the end of the term and provided further such claim does not reduce Owner’s
award.
Assignment,
Mortgage, Etc.: 11.
Tenant,
for itself, its heirs, distributees, executors, administrators, legal
representative, successor and assigns, expressly covenants that it shall not
assign, mortgage or encumber this agreement, nor underlet, or suffer or permit
the demised premises or any part thereof to be used by others, without the
prior
written consent of Owner in each instance. Transfer of the majority of the
stock
of a corporate Tenant or the majority partnership interest of a partnership
Tenant shall be deemed an assignment. If this lease be assigned, or if the
demised premises or any part thereof be underlet or occupied by anybody other
than Tenant, Owner may, after default by Tenant, collect rent from the assignee,
under-tenant or occupant, and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or collection shall
be
deemed a waiver of this covenant, or the acceptance of the assignee, under
tenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained.
The
consent by Owner to an assignment or underletting shall not in any wise be
construed to relieve Tenant from obtaining the express consent in writing of
Owner to any further assignment or underletting.4
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.
6
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
times5
to
examine the same and to make such repairs, replacements and improvements as
Owner may deem necessary and reasonably desirable to the demised premises or
to
any other portion of the building or which Owner may elect to perform. Tenant
shall permit Owner to use and maintain and replace pipes and conduits in and
through the demised premises and to erect new pipes and conduits therein
provided they are concealed within the walls, floor, or ceiling. Owner may,
during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. Throughout the term hereof Owner shall have the right
to
enter the demised premises at reasonable hours5
for the
purpose of showing the same to prospective purchasers or mortgagees of the
building, and during the last six months of the term for the purpose of showing
the same to prospective tenants. If Tenant is not present to open and permit
an
entry into the demised premises, Owner or Owner’s agents may enter the same
whenever such entry may be necessary or permissible by master key or forcibly
and provided reasonable care is exercised to safeguard Tenant’s property, such
entry shall not render Owner or its agents liable therefor, nor in any event
shall the obligations of Tenant hereunder be affected. 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 obligations 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 line of the building, which Tenant
may be permitted to use and/or occupy, is to be used and/or occupied under
a
revocable license, and if any such license be revoked, or if the amount of
such
space or area be diminished or required by any federal, state or municipal
authority or public utility, Owner shall not be subject to any liability nor
shall Tenant be entitled to any compensation or diminution or abatement of
rent,
nor shall such revocation, diminution or requisition be deemed constructive
or
actual eviction. Any tax, fee or charge of municipal authorities for such vault
or area shall be paid by Tenant.
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.
7
Bankruptcy:
16.
(a)
Anything elsewhere in this lease to the contrary notwithstanding, this lease
may
be cancelled by Owner by the sending of a written notice to Tenant within a
reasonable time after the happening of any one or more of the following events:
(1) the commencement of a case in bankruptcy or under the laws of any state
naming Tenant as the debtor; or (2) the making by Tenant of an assignment or
any
other arrangement for the benefit of creditors under any state statute. Neither
Tenant nor any person claiming through or under Tenant, or by reason of any
statute or order of court, shall thereafter be entitled to possession of the
premises demised but shall forthwith quit and surrender the premises. If this
lease shall be assigned in accordance with its terms, the provisions of this
Article 16 shall be applicable only to the party then owning Tenant’s interest
in this lease, (b) it is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of
the
term demised and the fair and reasonable rental value of the demised premises
for the same period. In the computation of such damages the difference between
any installment of rent becoming due hereunder after the date of termination
and
the fair and reasonable rental value of the demised premises for the period
for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or
any
part thereof be re-let by the Owner for the unexpired term of said lease, or
any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such re-letting
shall be deemed to be the fair and reasonable rental value for the part or
the
whole of the premises to 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
become vacant or deserted; or if any execution or attachment shall be issued
against Tenant or any of Tenant’s property whereupon the demised premises shall
be taken or occupied by someone other than Tenant; or if this lease be rejected
under §235 of Title 11 of the U.S. Code (bankruptcy code); or if Tenant shall
fail to move into or take possession of the premises within thirty (30) days
after the commencement of the term of this lease, then, in any one or more
or
such events, upon Owner serving a written notice upon Tenant specifying the
nature of said default and upon the expiration of said 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 day period, and if Tenant shall not have
diligently commenced during such default within such 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.
8
Remedies
of Owner and Waiver of Redemption: 18.
In case
of any such default, re-entry, expiration and/or dispossess by summary
proceedings or otherwise, (a) the rent shall become due thereupon and be paid
up
to the time of such re-entry, dispossess and/or expiration, (b) Owner may re-let
the premises or any part or parts thereof, either in the name of Owner or
otherwise, for a term or terms, which may at Owner’s option be less than or
exceed the period which would otherwise have constituted the balance of the
term
of this lease and may grant concessions or free rent or charge a higher rental
than that in this lease, and/or (c) Tenant or the legal representatives 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 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 in the event of Tenant being evicted or dispossessed
for
any cause, or in the event of Owner obtaining possession of demised premises,
by
reason of the violation by Tenant of any of the covenants and conditions of
this
lease, or otherwise.
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 attorneys’ fees, in instituting, prosecuting or defending any action
or proceeding, and prevails in any such action or proceeding then Tenant will
reimburse Owner for such sums so paid or obligations incurred with interest
and
costs. The foregoing expenses incurred by reason of Tenant’s 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.
9
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 Tenants making any repairs in the building or any
such alterations, additions and improvements. Furthermore, Tenant shall not
have
any claim against Owner by reason of Owner’s imposition of such controls of the
manner of access to the building by Tenant’s social or business visitors as the
Owner may deem necessary for the security of the building and its
occupants.
No
Representations 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 remises, the rents, leases, expenses of operation or any other
matter or affecting or related to the premises except as herein expressly set
forth and no rights, easements or licenses are acquired by Tenant by implication
or otherwise except as expressly set forth in the provisions of this lease.
Tenant has inspected the building and the demised premises and is thoroughly
acquainted with their condition and agrees to take the same “as is” and
acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between
Owner
and Tenant and any executory agreement hereafter made shall be ineffective
to
change, modify, discharge or effect an abandonment of it in whole or in part,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
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. 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.
10
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 31 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, under tenant 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 of occupancy has not been procured or for any other
reason, Owner shall not be subject to any liability for failure to give
possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this lease, but the rent payable hereunder shall be abated (provided
Tenant is not responsible for Owner’s inability to obtain possession or complete
construction) until after Owner shall have given Tenant written notice that
the
Owner is able to deliver possession in 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 in the
date
specified as the commencement of the term of this lease, Tenant covenants and
agrees that such possession and/or occupancy shall be deemed to be under all
the
terms, covenants, conditions and provisions of this lease except the obligation
to pay the fixed annual rent set forth in the preamble to this lease. The
provisions of this article are intended to constitute “an express provision to
the contrary” within the meaning of Section 223-a of the New York Real Property
Law.
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
and/or additional rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this
lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner’s right to recover the balance of such rent or pursue any
other remedy in this lease provided. No act or thing done by Owner or Owner’s
agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall
be
valid unless in writing signed by Owner. No employee of Owner or Owner’s agent
shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the
premises.
11
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
counterclaims.
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 way 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, futures, or other
materials if Owner is prevented or delayed from so doing by reason of strike
or
labor troubles or any cause whatsoever including, but not limited to, government
preemption or restrictions or by reason of any rule, order or regulation of
any
department or subdivision thereof of any government agency or any 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.
Services
Provided by Owners: 29.
As long
as Tenant is not in default under any of the covenants of this lease beyond
the
applicable grace period provided in this lease for the curing of such defaults.
Owner shall provide: (a) necessary elevator facilities on business days from
8
a.m. to 6 p.m. and have one elevator subject to call at all other times; (b)
heat to the demised premises when and as required by law, on business days
from
8 a.m. to 6 p.m.; (c) water for ordinary lavatory purposes, but if Tenant uses
or consumes water for any other purposes or in unusual quantities (of which
fact
Owner shall be the sole judge), Owner may install a water meter at Tenant’s
expense which Tenant shall thereafter maintain at Tenant’s expense in good
working order and repair to register such water consumption and Tenant shall
pay
for water consumed as shown on said meter as additional rent as and when bills
are rendered; (d) cleaning service for the demised premises on business days
at
Owner’s expense provided that the same are kept in order by Tenant. If, however,
said premises are to be kept clean by Tenant it shall be done at Tenant’s sole
expense, in a manner reasonably satisfactory to Owner and no one other than
persons approved by Owner shall be permitted to enter said premises or the
building of which they are a part for such purpose. Tenant shall pay Owner
the
cost of removal of any of Tenant’s refuse and rubbish from the builder; (e) If
the demised premises are serviced by Owner’s air conditioning/cooling and
ventilating system, air conditioning/cooling will be furnish to Tenant from
May
15th through September 30th on business days (Mondays through Fridays, holidays
excepted) from 8:00 a. m. to 6:00 p.m., and ventilation will be furnished on
business days during the aforesaid hours except when air conditioning/cooling
is
being furnished as aforesaid. If Tenant requires air conditioning/cooling or
ventilation for more extended hours or on Saturdays, Sundays or on holidays,
as
defined under Owner’s contract with Operating Engineers Local 94-94A, Owner will
furnish the same at Tenant’s expense. RIDER to be added in respect to rates and
conditions for such additional service; and (f) Owner reserves the right to
stop
services of the heating, elevators, plumbing, air-conditioning, electric, power
systems or cleaning or other services, if any, when necessary by reason of
accident or for repairs, alterations, replacements or improvements necessary
or
desirable in the judgment of Owner for as long as may be reasonably required
by
reason thereof. If the building of which the demised premises are a part
supplies manually operated elevator service, Owner at any time may substitute
automatic control elevator service and proceed diligently with alterations
necessary therefor without in any wise affecting this lease or the obligation
of
Tenant hereunder.
12
Captions:
30. The
Captions are inserted only as a matter of convenience and for reference and
in
no way define, limit or describe the scope of this lease nor the intent of
any
provisions thereof.
Definitions:
31.
The term
“office”, or “offices”, wherever used in this lease, shall not be construed to
mean premises used as a store or stores, for the sale or display, at any time,
of goods, wares or merchandise, of any kind, or as a restaurant, shop, booth,
bootblack or other stand, xxxxxx shop, or for other similar purposes or for
manufacturing. The term “Owner” means a landlord or lessor, and as used in this
lease means only the owner, or the mortgagee in possession, for the time being
of the land and building (or the owner of a lease of the building or of the
land
and building) of which the demised premises form a part so that in the event
of
any sale or sales of said land and building or of said lease, or in the event
of
a lease of said building, or of the land and building, the said Owner shall
be
and hereby is entirely freed and relieved of all covenants and obligations
of
Owner hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties
and
the purchaser, at any such sale, or the said lessee of the building, or of
the
land and building, that the purchaser or the lessee of the building has assumed
and agreed to carry out any and all covenants and obligations of Owner,
hereunder. The words “re-enter” and “re-entry” as used in this lease are not
restricted to their technical legal meaning. The term “business days” as used in
this lease shall exclude Saturdays, Sundays and all days as observed by the
State or Federal Government as legal holidays and those designated as holidays
by the applicable building service union employees service contract or by the
applicable Operating Engineers contract with respect to HVAC service. Wherever
it is expressly provided in this lease that consent shall not be unreasonably
withheld, such consent shall not be unreasonably delayed.
Adjacent
Excavation-Shoring: 32. 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.6a
13
Rules
and Regulations: 33.
Tenant
and Tenant’s servants, employees, agents, visitors, and licensees shall observe
faithfully, and comply strictly with, the Rules and Regulations and such other
and further reasonable Rules and Regulations as Owner or Owner’s agents may from
time to time adopt. Notice of any additional rules or regulations shall be
given
in such manner as Owner may elect. In case Tenant disputes the reasonableness
of
any additional Rule or Regulation hereafter made or adopted by Owner or Owner’s
agents, the parties hereto agree to submit the question of the reasonableness
of
such Rule or Regulation for decision to the New York office of the American
Arbitration Association, whose determination shall be final and conclusive
upon
the parties hereto. The right to dispute the reasonableness of any additional
Rule or Regulation upon Tenant’s part shall be deemed waived unless the same
shall be asserted by service of a notice, in writing upon Owner within 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.
Security:
34.
Tenant
has deposited with Owner the sum of $23,706.10 as security for the faithful
provisions and conditions of this lease; it is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
lease, including, but not limited to, the payment of rent and additional rent,
Owner may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional
rent
or any other sum as to which Tenant is in default or for any sum which Owner
may
expend or may be required to expend by reason of Tenant’s default in respect of
any of the terms, covenants and conditions of this lease, including but not
limited to, any damages or deficiency in the re-letting of the premises, whether
such damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease,
the
security shall be returned 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 lease of the building,
of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee or lessee and Owner shall thereupon be released
by
Tenant from all liabilities, for the return of such security; and Tenant agrees
to look to the new Owner solely for the return of said security, and it is
agreed that the provisions hereof shall apply to every transfer or assignment
made of the security to a new Owner. Tenant further covenants that it will
not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Owner nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.7
Estoppel
Certificate: 35.
Tenant,
at any time, and from time to time, upon at least 10 days’ prior notice by
Owner, shall execute, acknowledge and deliver to Owner, and/or to any other
person, firm or corporation specified by Owner, a statement certifying that
this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), stating the dates to which the rent and additional rent
have
been paid, and stating whether or not there exists any default by Owner under
this Lease, and, if so, specifying each such default.
14
Successors
and Assigns: 36.
The
covenants, conditions and agreements contained in this lease shall bind and
inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner’s estate
and interest in the land and building, 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.
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:
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XXXXXX
X. DAY REALTY CORP., as
Agent
for 000 Xxxxx Xxxxxx Associates
(Owner)
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By:
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/s/Xxxxxxx
Xxxxxxxx
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Witness
for Tenant:
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ASSET
ALLIANCE CORPORATION
(Tenant)
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By:
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/s/Xxxxxx
X.
Xxxxx
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ACKNOWLEDGEMENTS
CORPORATE
OWNER
STATE
OF
NEW YORK, ss.:
County
of
On
this
____ day of ____________, 19___, before me personally came _______________,
to
be known, who being by me duly sworn, did depose and say that he resides in
________________, that he is the __________________ of __________________ the
corporation described in and which executed the foregoing instrument, as OWNER;
that he knows the seal of said corporation; the seal affixed to said instrument
is such corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his name thereto by like
order.
15
CORPORATE
TENANT
STATE
OF
NEW YORK, ss.:
County
of
On
this
____ day of ____________, 19___, before me personally came ________________,
to
be known, who being by me duly sworn, did depose and say that he resides in
________________, that he is the __________________ of __________________ the
corporation described in and which executed the foregoing instrument, as TENANT;
that he knows the seal of said corporation; the seal affixed to said instrument
is such corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his name thereto by like
order.
16
INDIVIDUAL
OWNER
STATE
OF
NEW YORK, ss.:
County
of
On
this
____ day of ____________, 19___, before me personally came ________________,
to
be known, and known to me to be the individual described in and who, as OWNER,
executed the foregoing instrument and acknowledged to me that _________________
he executed the same.
INDIVIDUAL
TENANT
STATE
OF
NEW YORK, ss.:
County
of
On
this
____ day of ____________, 19___, before me personally came ________________,
to
be known, and known to me to be the individual described in and who, as TENANT,
executed the foregoing instrument and acknowledged to me that _________________
he executed the same.
17
GUARANTY
FOR
VALUE
RECEIVED, and in consideration for, and as an inducement to Owner making the
within lease with Tenant, the undersigned guarantees to Owner, Owner’s
successors and assigns, the full performance and observance of all the
covenants, conditions and agreements, therein provided to be performed and
observed by Tenant, including the “Rules and Regulations” as therein provided,
without requiring any notice of non-payment, non-performance, or non-observance,
or proof, or notice, or demand, whereby to charge the undersigned therefor,
all
of which the undersigned hereby expressly waives and expressly agrees that
the
validity of this agreement and the obligations of the guarantor hereunder shall
in no way be terminated, affected or impaired by reason of the assertion by
Owner against Tenant of any of the rights or remedies reserved to Owner pursuant
to the provisions of the within lease. The undersigned further covenants and
agrees that this guaranty shall remain and continue in full force and effect
as
to any renewal, modification or extension of this lease and during any period
when Tenants occupying the premises as a “statutory tenant.” As a further
inducement to Owner to make this lease and in consideration thereof, Owner
and
the undersigned covenant and agree that in any action or proceeding brought
by
either Owner or the undersigned against the other on any matters whatsoever
arising out of, under, or by virtue of the terms of this lease or of this
guarantee that Owner and the undersigned shall and do hereby waive trial by
jury.
Dated:
_____________________________, 19__
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Guarantor
|
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Witness
|
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Guarantor’s
Residence
|
|
|
|
Business
Address
|
|
|
|
Firm
Name
|
|
)
|
ss.:
|
|
|
County
of
|
)
|
On
this
____ day of ____________, 19___, before me personally came ________________,
to
me known, and known to me to be the individual described in and who, executed
the foregoing Guaranty and acknowledged to me that he executed the
same.
Notary
RULES
AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE WITH
ARTICLE 33.
1. The
sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than for ingress or egress from the demised
premises and for delivery of merchandise and equipment in a prompt and efficient
manner using elevators and passageways designated for such delivery by Owner.
There shall not be used in any space, or in the public hall of the building,
either by any Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building,
Tenant thereof shall further, at Tenant’s expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and
rubbish.
2. The
water
and wash closets and plumbing fixtures shall not be used for any purposes other
than the purposes for which they were designed or constructed and no sweepings,
rubbish, rags, acids or other substances shall be deposited therein, and the
expense of any breakage, stoppage, or damage resulting from the violation of
this rule shall be borne by the Tenant who, or whose clerks, agents, employees
or visitors, shall have caused it.
3. No
carpet, rug or other article shall be hung or shaken out of any window of the
building and no Tenant shall sweep or throw or permit to be swept or thrown
from
the demised premises any dirt or other substances into any of the corridors
or
halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the building by reason of noise, odors, and/or vibrations,
or interfere in any way with other Tenants or those having business therein,
nor
shall any bicycles, vehicles, animals, fish, or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators
of
the building is prohibited.
4. No
awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No
sign,
advertisement, notice or other lettering shall be exhibited, inscribed, painted
or affixed by any Tenant on any part of the outside of the demised premises
or
the building or on the inside of the demised premise if the same is visible
from
the outside of the premises without the prior written consent of Owner, except
that the name of Tenant may appear on the entrance door of the premises. In
the
event of the violation of the foregoing by any Tenant, Owner may remove same
without any liability, and may charge the expense incurred by such removal
to
Tenant or Tenants violating this rule. Interior signs on doors and directory
tablet shall be inscribed, painted or affixed for each Tenant by Owner at the
expense of such Tenant, and shall be of size, color and style acceptable to
Owner.
6. No
Tenant
shall xxxx, paint, drill into, or in any way deface any part of the demised
premises or the building of which they form a part. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent
of
Owner, and as Owner may direct. No Tenant shall lay linoleum, or other similar
floor covering, so that the same shall come in direct contact with the floor
of
the demised premises, and, if linoleum or other similar floor covering is
desired to be used an interlining of builder’s deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use
of
cement or other similar adhesive material being expressly
prohibited.
7. No
additional locks or bolts of any kind shall be placed upon any of the doors
or
windows by any Tenant, nor shall any changes be made in existing locks or
mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of
any
keys, so furnished, such Tenant shall pay to Owner the cost
thereof.
8. Freight,
furniture, business equipment, merchandise and bulky matter of any description
shall be delivered to and removed from the premises only on the freight
elevators and through the service entrances and corridors, and only during
hours
and in a manner approved by Owner. Owner reserves the right to inspect all
freight to be brought into the building and to exclude from the building all
freight which violates any of these Rules and Regulations of the lease or which
these Rules and Regulations are a part.
9. Canvassing,
soliciting and peddling in the building is prohibited and each Tenant shall
cooperate to prevent the same.
10. Owner
reserves the right to exclude from the building all persons who do not present
a
pass to the building signed by Owner. Owner will furnish passes to persons
for
whom any Tenant requests same in writing. Each Tenant shall be responsible
for
all persons for whom he requests such pass and shall be liable to Owner for
all
acts of such persons. Tenant shall not have a claim against Owner for reason
of
Owner excluding from the building any person who does not present such
pass.
11. Owner
shall have the right to prohibit any advertising by any Tenant which in Owner’s
opinion, tends to impair the reputation of the building or its desirability
as a
building for offices, and upon written notice from Owner. Tenant shall refrain
from or discontinue such advertising.
12. Tenant
shall not bring or permit to be brought or kept in or on the demised premises,
any inflammable, combustible, explosive, or hazardous fluid, material, chemical
or substance, or cause or permit any odors of cooking or other processes, or
any
unusual or other objectionable odors to permeate in or emanate from the demised
premises.
13. If
the
building contains central air conditioning and ventilation, Tenant agrees to
keep all windows closed at all times and to abide by all rules and regulations
issued by Owner with respect to such services. If Tenant requires air
conditioning or ventilation after the usual hours, Tenant shall give notice
in
writing to the building superintendent prior to 3.00 p m. in the case of
services required on week days, and prior to 3:00 p m. on the day prior in
case
of after hours service required on weekends or on holidays. Tenant shall
cooperate with Owner in obtaining maximum effectiveness of the cooling system
by
lowering and closing venetian blinds and/or drapes and curtains when the sun’s
rays fall directly on the windows of the demised premises.
14. Tenant
shall not move any safe, heavy machinery, heavy equipment, bulky matter, or
fixtures into or out of the building without Owner’s prior written consent. If
such safe, machinery, equipment, bulky matter or fixtures requires special
handling, all work in connection therewith shall comply with the Administrative
Code of the City of New York and all other laws and regulations applicable
thereto and shall be done during such hours as Owner may designate.
15. Refuse
and Trash. (1) Compliance by Tenant. Tenant covenants and agrees, at its sole
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
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 Owner. Such separate receptacles may, at Owner’s option,
be removed from the demised premises in accordance with a collection schedule
prescribed by law. Tenant shall remove, or cause to be removed by a contractor
acceptable to Owner, at Owner’s sole discretion, such items as Owner may
expressly designate. (2) Owner’s Rights in Event of Noncompliance. Owner has the
option to refuse to collect or accept from Tenant waste products, garbage,
refuse or trash (a) that is not separated and sorted as required by law or
(b)
which consists of such items as Owner may expressly designate for Tenant’s
removal, and to require Tenant to arrange for such collection at Tenant’s sole
cost and expense, utilizing a contractor satisfactorily to Owner. Tenant shall
pay all costs, expenses, fines, penalties, or damages that may be imposed on
Owner or Tenant by reason of Tenant’s failure to comply with the provisions of
this Building Rule 15, and, at Tenant’s sole cost and expense, shall indemnify,
defend and hold Owner harmless (including reasonable legal fees and expenses)
from and against any actions, claims and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to Owner.
STANDARD
LEASE RIDER
37. RIDER
PROVISIONS PARAMOUNT
If
and to
the extent that any of the provisions of this Rider conflict or are otherwise
inconsistent with any of the preceding printed provisions of this Lease, whether
or not such inconsistency is expressly noted in this Rider, the provisions
of
this Rider shall prevail, and in case of inconsistency with the Rules and
Regulations, shall be deemed a waiver of such Rules and Regulations with respect
to this Tenant to the extent of such inconsistency.
38. BINDING
EFFECT
It
is
specifically understood and agreed that this Lease is offered to Tenant for
signature by the managing Agent of the Building solely in its capacity as such
Agent and subject to Owner’s acceptance and approval, and that Tenant shall have
affixed its signature hereto with the understanding that such act shall not,
in
any way, bind Owner or its Agent until such time as this Lease shall have been
approved and executed by the managing Agent or the Owner and delivered to
Tenant. If on the signing or at any time during the term of this lease, the
“Owner” is acting as such in fiduciary capacity or capacities, then such “Owner”
shall not be bound hereby or be liable hereunder or for any covenant or
warranty, expressed or implied, otherwise than in such capacity or
capacities.
39. REAL
ESTATE TAX ESCALATION
Tenant
shall pay Owner as additional rents the amounts set forth in this Article
39.
A. The
following definitions shall apply:
1. “Taxes”
shall mean the real estate taxes and assessments and special assessments imposed
upon the Building and/or the land (“the Building”) by any governmental bodies or
authorities for
any
purpose
whatsoever or any other governmental charges whether general or special,
ordinary or extraordinary, foreseen or unforeseen, which may be levied or
accessed with respect to the Building during the term of this Lease or any
renewal thereof whether the increase results from a higher tax rate or an
increase in the assessed value of the Building or both or other means of
increase. If at any time after the date hereof the methods of taxation
prevailing on the date hereof shall be altered so that in lieu of, or as an
addition to or as a substitute for the whole or any part of the taxes,
assessments, levies, impositions or charges now levied, assessed or imposed
on
real estate and the improvements thereof, there shall be levied, assessed and
imposed (i) a tax, assessment, levy or otherwise on the rents received
therefrom, or (ii) a license fee measured by the rent payable by Tenant to
Owner, or (iii) any other additional or substitute tax, assessment, levy,
imposition or charge, then all such taxes, assessments, levies, impositions
or
charges or the part thereof so measured or based shall be deemed to be included
within the term “Taxes” for the purpose hereof. Taxes shall not include any
inheritance, estate, succession, transfer, gift, franchise, corporation, income
or profit tax or excess profits that is or may be imposed upon Owner. Tenant
agrees to pay Tenant’s Share of the actual costs incurred by Owner in any tax
protest or reduction proceedings, including attorneys, accountants and
appraiser’s fees and any other filing or court fees or other costs,
disbursements or expenses incurred with relation to each Tax Year during the
term of this Lease.
2. “Base
Tax” shall mean Taxes, as finally determined by settlement, court decision or
otherwise, for the fiscal Tax Year ending June 30, 1997.
3. “Tax
Year” shall mean the fiscal year for which Taxes are levied by the governmental
authority.
4. “Tenant’s
Share” shall be .796 percent (.796%) throughout the term of this Lease
irrespective of the bulk of the Building and the Demised Premises and any
additions or demolition at any time during the term hereof.
5. “Building”
shall mean the land and building known as 000 Xxxxx Xxxxxx in the borough of
Manhattan, city and state of New York of which the Demised Premises form a
part.
B.1. lf,
for
any reason, the Taxes for any Tax Year shall be more than the Base Tax, Tenant
shall pay as additional rent for such Tax Year an amount equal to Tenant’s Share
of the amount by which the Taxes for such Tax Year are greater than the Base
Tax. (The amount payable by Tenant is hereinafter called the “Tax Payment.”)
Owner or Agent shall furnish Tenant with a statement showing the calculations
for any year in which a Tax Payment is due and if requested with copies of
the
tax bills. The Tax Payment shall be prorated, if necessary, to correspond with
that portion of a Tax Year occurring within the term of this Lease.
2. In
the
event the Base Tax is reduced as a result of settlement, court decision or
of
any other appropriate proceeding or agreement, Owner shall have the right to
adjust the amount of Tax Payment due from Tenant for any Tax Year in which
Tenant is or was obligated to pay a Tax Payment hereunder to reflect the new
Base Tax, and Tenant agrees to pay the amount of said adjustment on the next
rental installment day immediately following receipt of a rent statement from
Owner setting forth the amount of said adjustment.
C. With
respect to any period at the commencement or expiration of the term, which
shall
constitute a partial Tax Year, Owner’s statement shall apportion the amount of
the Tax Payment due hereunder.
D. Beginning
with the first Tax Year in which Taxes are greater than the Base Tax, the Tax
Payment for that year and subsequent years shall be paid in the same number
of
installments as Taxes are paid by Owner to the taxing authority, such payments
to be made by Tenant 30 days before each such installment is due to be paid
to
the taxing authority.
E. Owner
shall be under no obligation to contest the Taxes or the assessed valuation
of
the land and the Building for any Tax Year or to refrain from contesting the
same, and may settle any such contest on such terms as Owner in its sole
judgment considers proper.
F. Owner’s
failure during the Lease term to prepare and deliver any statements or xxxx
for
Tax Payment, or Owner’s failure to make a demand under this Article 39 or under
any other provisions of this Lease shall not in any way be deemed to be a waiver
of or cause Owner to forfeit or surrender its right to collect any items of
additional rent which may have become due pursuant to this Article
398
or any
other article of this Lease during the term of this Lease. Tenant’s liability
for the additional rent due under this Article 39 shall survive the expiration
or sooner termination of this Lease.
G. In
no
event shall any adjustment of Tax Payments hereunder result in a decrease of
the
fixed rent or additional rent payable pursuant to any other provisions of this
Lease, it being agreed that the payment of additional rent under this Article
39
is an obligation supplemental and in addition to Tenant’s obligation to pay
fixed rent.9
40. WAGE
FORMULA INCREASE
If
the
Labor Rate for any Operation Year shall be greater than the Base Labor Rate,
the
Tenant shall in case of such an excess, pay to Owner as additional rent for
the
Demised Premises for such Operation Year an amount equal to the product obtained
by multiplying (i) the Wage Rate Multiple by (ii) one annum for each one cent
that such Hourly Wage Rate is over the Base Labor Rate. Any such annual
adjustment payable by reason of the provisions of the preceding sentence shall
be due and payable in equal monthly installments as of the first day of the
first month of the relevant Operation Year, and Owner or Agent shall furnish
Tenant with an Escalation Statement relating to such Operation Year. The
aforesaid monthly installments shall continue until a new adjustment becomes
effective pursuant to the terms of this Article 40. If said Escalation Statement
is furnished to Tenant after the commencement of any such Operation Year, there
shall be promptly paid by Tenant to Owner an amount equal to the portion of
such
adjustments allocable to the part of such Operation Year which shall have
elapsed prior to the first day of the calendar month next succeeding the
calendar month in which said Escalation Statement is furnished to Tenant. Any
such adjustment billed to Tenant shall be deemed additional rent.
As
used
in this Article 40, the words and terms which follow mean and include the
following:
(a)
“Operation Year” shall mean each calendar year in which occurs any part of the
term of this Lease.
(b)
“Wage
Rate Multiple” shall be 3748.
(c)
“Hourly Wage Rate” as used herein shall mean the minimum regular hourly wage
rate, social security and welfare fund contribution paid for the porters
(Others) engaged in the general maintenance and operation of Class A. office
buildings pursuant to a collective bargaining agreement between Owner or Owner’s
association and Local 32B of the Building Service Employees International Union
AFL-CIO (or any successor thereto). The Hourly Wage Rate shall include but
not
be limited to sums paid for fringe benefits for vacations, holidays, sick days,
birthdays, jury duty, medical check-ups, lunch hours, relief time and other
paid
time off, bonuses, pensions, unemployment, disability benefits, health, life,
accident, and other types of insurance, and other employee benefits. If any
such
agreement is not entered into or such parties or their successors shall cease
to
bargain collectively, the Hourly Wage Rate shall be the average of the regular
hourly wage rate and other sums aforesaid payable to or for the benefit of
porters engaged in the maintenance and operation of the Building and payable
by
either Owner or the contractor furnishing such services, but not in excess
of
the hourly minimum rate of wages and other sums as aforesaid for porters engaged
in the general maintenance and operations of buildings of the same type and
in
the same vicinity as the Building and, provided further, that if there is no
such agreement as of any such January 1 by which the Hourly Wage Rate for
porters is determinable, computations and payments shall thereupon be made
upon
the basis of the Hourly Wage Rate being paid by Owner or by the contractor
performing the cleaning services for Owner on such January 1 for said porters
and appropriate retroactive adjustment shall thereafter be made when the Hourly
Wage Rate to be paid as of such January 1 pursuant to such agreement for porters
is finally determined and, provided further that, if as of the last day of
such
Operation Year, no such agreement covering January 1 occurring in such Operation
Year shall have been in effect, the Hourly Wage Rate paid by Owner or by the
contractor performing the cleaning services for Owner on such January 1 for
said
porters as the case may be shall be for all purposes hereof deemed to be such
Hourly Wage Rate prescribed by such agreement and in effect as of such January
1.
(d)
“Base
Labor Rate” shall mean the Labor Rate at December 31, 1997.
(e)
“Labor Rate” for any Operation Year shall mean the Hourly Wage Rate as defined
above.
(f)
“Escalation Statement” shall mean a statement in writing submitted by Owner or
Agent, setting forth the amount payable by Tenant for a specified Operation
Year
pursuant to this Article 40.
With
respect to any period at the commencement or expiration of the term, which
shall
constitute a partial Operation Year, Owner’s statement shall apportion the
amount of the Wage Formula Increase due hereunder.
Owner’s
failure during the Lease term to prepare and deliver any notice, statement
or
xxxx, or Owner’s failure to make a demand, shall not in any way cause Owner to
forfeit or surrender Owner’s right to collect any additional rent which may have
become due during the term of this Lease under this Article 40 and Tenant’s
liability for amounts due under this Article 40 shall survive the termination
of
this Lease.
The
above
Article 40 which pertains to “Wage Formula Increase” utilizes the Hourly Wage
Rate of employees as part of a formula for adjusting rent as agreed by the
parties and is not intended to reflect or be based upon the actual labor costs
or other expenses of the Building which are not relevant to the formula. In
no
event shall any rent adjustment hereunder result in a decrease of the fixed
annual rent provided herein.
41.
OPERATING EXPENSE ESCALATION
Owner
shall have the option in any Operation Year to impose an “Operating Expense”
increase for such Operation Year pursuant to this Article 41 in lieu of the
Wage
Formula Increase for such year.9a
As used
herein, the term “Operating Expense” shall mean all costs and expenses incurred
by the Owner in connection with the operation, servicing and the maintenance
of
the Building, except real estate taxes.10
In the
event that the Owner should eliminate the payment of any wages or other labor
costs as a result of the installation of labor saving devices or by any other
means, then in computing the additional rent payable for Operating Expenses
as
provided hereunder, the corresponding item or items of such wages or other
labor
costs shall be deducted from the Operating Expenses for the Base Year. As used
herein, the term “Base Year” shall mean the calendar year, 1997. In the event
that the Operating Expenses incurred by the Owner during any Operation Year
following the Base Year shall exceed the Operating Expenses incurred by Owner
during the Base Year, the Tenant shall pay to the Owner as additional rent
for
such Operating Year an amount equal to .796 percent (.796%) of such excess.
Within six months subsequent to the Operation Year following the Base Year,
and
within six months after each Operation Year thereafter, the Owner shall endeavor
to furnish to the Tenant a statement of the Operating Expenses for the preceding
Operation Year and a statement of the Operating Expenses for the Base Year,
and
any additional rent due the Owner by reason of any increase in Operating
Expenses for the Operation Year over the Operating Expenses for the Base Year
shall be paid by the Tenant within ten (10) days after receipt of the aforesaid
statement. The statement of Operating Expenses to be furnished by the Owner
shall consist of data prepared for the Owner by a firm of Certified Public
Accountants (who may be the firm currently employed by the Owner in connection
with its accounts), and the statements thus furnished to the Tenant shall
constitute a final determination as between the Owner and the Tenant of
Operating Expenses for the periods represented thereby. The failure of Owner
to
submit bills in accordance with this Article 41 shall not be deemed a waiver
of
Owner’s right to xxxx for such periods nor release Tenant of Tenant’s
obligations to pay these charges. The obligation to make any payment pursuant
to
this Article 41 shall survive the expiration or sooner termination of this
Lease.10a
42.
HEATING COSTS
Anything
to the contrary notwithstanding and in addition to billing pursuant to Articles
40 and 41 of this Lease, Tenant agrees that in the event Heating Costs for
any
calendar year shall be greater than the Heating Costs for the calendar year
1997
as a result of but not limited to increases in or additions to the number of
units used, rates, fuel adjustments, taxes, surcharges, energy charges or
charges of any kind, Tenant agrees to pay to Owner within ten (10) days after
receipt of Owner’s statement, .796 percent (.796%) of such excess for the
particular calendar year. In the event that Owner exercises its option pursuant
to Article 41 herein and during such Lease years, this Article 42 shall not
apply. Heating Costs as used in this Article 42 shall mean fuel costs if Owner
continues to use its own heating plant or the cost of outside heating or steam
if the Owner uses an off-premises heating service.
43.
LOCAL
LAWS
If
any
alterations, installations, changes or improvements to the Building, including,
but not limited to, the Demised Premises are made by Owner in order to comply
with New York City Local Law No. 5 (fire protection) and New York City Law
No.
10 (building condition) as each may be amended or any successor or law of like
import (or any Federal, State or local law or government regulations enacted
subsequent to the date hereof), at any time after the date of this Lease and
prior to the expiration date of this Lease, the cost of any such alterations
shall, for the purposes of this Article 43, be deemed amortized by Owner in
accordance with an amortization schedule with a reasonable interest factor
included therein, determined by Owner in Owner’s judgment, and during each
calendar year which shall include any part of the demised term for which such
an
amortization shall be applicable, Tenant shall pay to Owner a sum equal to
.796
percent (.796%) of such amortization and interest applicable to such calendar
year.11
44.
ADDITIONAL RENT
All
escalation rents, additional rent and any and all other payments, charges and
sums due by the Tenant to the Owner under this Lease whether or not designated
as such shall be deemed rent for all purposes hereunder and by law, and the
failure to pay any such amount shall subject the Tenant to the same rights
and
remedies of the Owner including the right to commence summary proceedings for
nonpayment of rent as if such escalation rent, additional rent and other
payments, charges and sums due were Fixed Annual Base Rent
hereunder.
45.
ACCEPTANCE OF RENT
If
Tenant
is in arrears in the payment of fixed rent or additional rent, Tenant waives
its
rights, if any, to designate the items in arrears against which any payments
made by Tenant are to be credited, and Owner may apply any of such payments
to
any such items in arrears as Owner, in its sole discretion, shall determine,
irrespective of any designation or request by Tenant as to the items against
which any such payments shall be credited. No payment by Tenant nor receipt
by
Owner of a lesser amount than may be required to be paid hereunder shall be
deemed to be other than on account of any payment nor shall any endorsement
or
statement on any check or any letter accompanying any check tendered as payment
be deemed an accord and satisfaction and Owner may accept such check or payment
without prejudice to Owner’s right to recover the balance of such payment due or
pursue any other remedy in this Lease provided or at law. No receipt of monies
by Owner from Tenant, after any reentry or after the cancellation or termination
of this Lease in any lawful manner shall reinstate this Lease; and after the
service of notice to terminate this Lease, or after the commencement of any
action, proceeding or other remedy, Owner may demand, receive and collect any
monies due and apply this on account of Tenant’s obligations under this Lease
but without in any respect affecting such notice, action, proceeding or remedy,
except that if a money judgment is being sought in any such action or
proceeding, the amount of such judgment shall be reduced by such payment. All
checks rendered to the Owner as and for the rent of the Demised Premises shall
be deemed payments for the account of the Tenant. Acceptance by the Owner of
rent from anyone other than the Tenant shall not be deemed to operate as an
attornment to the Owner by the payor of such rent or as a consent by the Owner
to an assignment or subletting by the Tenant to the Demised Premises to such
payor, or as a modification of the provisions of this Lease.
46.
LATE
PAYMENT
If
Tenant
shall fail to pay any installment of rent, additional rent or other charges
when
first due hereunder (irrespective of any grace period as may be applicable
thereto) and such payment was not received in the office of the Owner’s Agent on
or before the tenth (10th)
day
after such payment was first due, then interest at the rate of two percent
(2%)
per month for each month or portion of a month may be charged on such sum not
paid when first due and payable hereunder, and such interest shall be deemed
to
accrue as additional rent hereunder and shall be paid to Owner upon demand
made
from time to time, but in any event no later than the time of payment of the
delinquent sum. If such interest from time to time shall exceed the rate
permitted under the laws of the State of New York to be charged on late payments
of sums of money due pursuant to a lease, then the interest shall be reduced
to
said legal maximum rate. Such late charge shall be without prejudice to any
of
Owner’s rights and remedies hereunder for nonpayment of rent and shall be in
addition thereto.
47.
RENT
CONTROL
If
the
annual base rental or any additional rent shall be or become uncollectible,
reduced or required to be refunded by virtue of any law, governmental order
or
regulation, or direction of any public officer or body pursuant to law, Tenant
shall within ten (10) days of request enter into an agreement or agreements
and
take such other action as Owner may request, as may be legally permissible,
to
permit Owner to collect the maximum annual base rent and additional rent which
may from time to time during the continuance of such rent restriction be legally
permissible, but not in excess of the amounts of annual base rent or additional
rent payable under this Lease. Upon the termination of such rent restriction
prior to the termination of the term of this Lease, (a) the annual base rent
and
additional rent, after such termination, shall become payable under this Lease
in the amount of the annual base rent and additional rent set forth in this
Lease for the period following such termination, and (b) Tenant shall pay to
Owner, to the maximum extent legally permissible, an amount equal to (i) the
annual base rent and additional rent which would have been paid pursuant to
this
Lease but for such rent restriction less (ii) the annual base rent and
additional rent paid by Tenant to Owner during the period that such rent
restriction was in effect.
48.
TENANT’S SECURITY
11a
Owner
shall unless prohibited by law or by the general policies of lending
institutions in New York City deposit the security in an interest-bearing
account with a bank selected by Owner. All interest which shall accrue on the
security shall be held as additional security in accordance with this Lease.
Owner shall be entitled to an administrative fee of 1% per year upon the
security deposited by the Tenant.
49.
[INTENTIONALLY OMITTED]
50.
TENANT’S CLEANING
12
The
Tenant agrees to employ such office cleaning and maintenance contractor as
the
Owner may from time to time designate for all waxing, polishing and maintenance
work in the Demised Premises above any cleaning services which may be provided
by Owner pursuant to this Lease. The Tenant shall not employ any other
contractor or individual without the Owner’s prior written consent which consent
shall be in Owner’s sole discretion. Tenant recognizes that this provision is
for the security of the Building. The foregoing shall not preclude Tenant or
its
employees from performing any of the foregoing work.
51.
RESTRICTIONS ON USAGE
A.
Tenant
covenants and agrees that during the term of this Lease neither Tenant, assignee
nor any subtenant (if the same are permitted pursuant to this Lease) will use
as
its name or as part of its name (under which it conducts business) any name
which, regardless of the spelling thereof, has the same or similar sound or
meaning as the words “MEDICAL CENTER”, “MEDICAL GROUP” or “MEDICAL TREATMENT
CENTER”.
B.
Notwithstanding anything to the contrary contained in this Lease, Tenant
covenants and agrees that Tenant will not use the Demised Premises or any part
thereof or permit the Demised Premises or any part thereof to be
used:
(a)
for
banking, trust company or safe deposit business;
(b)
as or
by a commercial or savings bank, as or by a trust company, as or by a savings
and loan association, as or by a loan company or as or by a credit
union;
(c)
for
the sale of traveler’s checks and/or foreign exchange;
(d)
as a
restaurant and/or bar, and/or for the sale of soda and/or beverages and/or
food
or sandwiches and/or ice cream and/or baked goods;
(e)
as a
diagnostic medical center and/or for the practice of medicine or health
services;
(f)
as a
school of any kind including but not limited to the teaching of or instructions
or giving courses in either secretarial skills, and/or languages and/or the
operation of office equipment and/or business machines;
(g)
for
telephone answering, messenger, photocopying, express mail services for other
than Tenant;
(h)
as an
employment, placement or recruiting agency or similar activity.
52.
INDEMNIFICATION AND INSURANCE
Tenant
agrees to indemnify and save Owner harmless from and against all damages,
liabilities, claims, costs and expenses, including reasonable attorneys’ fees,
arising out of the use of the Demised Premises or the Building or the adjacent
sidewalks12a
or any
work or thing done, or any condition created by Tenant or its employees,
licensees, Agents or contractors whether or not caused by negligence or breach
of an obligation by Tenant. This provision shall survive the termination of
this
Lease. The Tenant shall, at full replacement cost, insure its alterations,
improvements, inventory, trade fixtures, personal property and equipment against
property damage for the Tenant and the Owner’s benefit, as their respective
interest may appear.
Tenant
covenants to provide (and deliver proof thereof) on or before the commencement
date of the term hereof and to keep in force during the whole time period Tenant
occupies Demised Premises a fully paid comprehensive general liability insurance
policy covering but not limited to all the above mentioned items in respect
of
the Demised Premises and the conduct and operation of business therein (and
the
sidewalks adjacent thereto) naming the Owner as a named insured with limits
of
$2,000,000 for bodily injury and $250,000 property damage including water damage
and sprinkler leakage legal liability. At least 15 days prior to the expiration
date of such policy, Tenant shall deliver to Owner a fully paid renewal policy
or insurance certificate.
Tenant
agrees to deliver certificates of the insurance required by Article 3 of the
lease from contractors or subcontractors in reasonable amounts unless otherwise
required pursuant to Article 3.
All
such
policies shall be issued by companies of recognized responsibility licensed
to
do business in the State of New York and shall contain a provision whereby
the
same cannot be cancelled or modified unless Owner is given at least twenty
(20)
days’ prior written notice by certified or registered mail of such cancellation
or modification.
If
Tenant
defaults in obtaining or delivering any such policy or policies or fails to
pay
the premiums therefor, Owner may (but shall not be required to) secure or pay
for any such policy or policies and charge Tenant as additional rent therefor.
Such additional rent shall be payable by Tenant to Owner with the fixed rent
then next accruing. If Tenant defaults in paying the same with interest to
date
of payment, Owner shall have the same rights and remedies on account thereof
as
it has with respect to a default in the payment of the fixed rent, including
summary proceedings.
53.
COST
AND EXPENSES
All
costs
and expenses, including attorneys’ fees incurred by Owner in and about enforcing
any of the covenants and conditions of this Lease shall be paid by Tenant as
additional rent, and if not previously paid, shall be included in any judgment
rendered in Owner’s favor in any court of competent jurisdiction and against
Tenant herein.
54.
SERVICE CART
Tenant
expressly agrees that it shall not permit or obtain or accept the delivery
of
any food or beverage by any vendor operating a service cart or similar means
of
conveyance to the Demised Premises, except by any vendor as shall be approved
in
advance by Owner in writing.
55.
BROKER
The
Tenant represents and warrants to the Owner that it has dealt with no broker
or
salesperson nor been shown or introduced to the Demised Premises in connection
with this Lease by any person, except the managing Agent XXXXXX X. DAY REALTY
CORP. The Tenant hereby agrees to indemnify and hold the Owner harmless from
and
against any claims, costs, expenses (including legal fees) and other liabilities
incurred by the Owner by reason of any claim or action for a commission or
fees
by any other person or broker in connection with this leasing. The provisions
of
this Article 55 shall survive the expiration or earlier termination of the
term
of this Lease.
56.
CONSTRUCTION: GOVERNING LAW
If
any of
the provisions of this Lease or the application thereof to any person or
circumstances, shall, to any extent, be invalid or unenforceable, the remainder
of this Lease or the application of such provision or provisions to persons
or
circumstances other than those as to whom or which it is held invalid or
unenforceable shall not be affected thereby, and every provision of this Lease
shall be valid and enforceable to the fullest extent permitted by law. This
Lease shall be governed in all respects by the laws of the State of New
York.
57.
ATTORNMENT
Tenant
agrees that if a superior lessor or a mortgagee shall enter into and become
possessed of the real property of which the Demised Premises form a part, or
any
part or parts of such real property either through possession or foreclosure
action or proceedings, or through the issuance and delivery of a new lease
of
the premises covered by the Lease to the mortgagee, then, if this Lease is
in
full force and effect at such time, Tenant shall attorn to the superior lessor
or the mortgagee, as its landlord, if such superior lessor or such mortgagee
requests Tenant to do so. In such event, such lessor or mortgagee shall not
be
liable to Tenant for any defaults theretofore committed by Owner, and no such
default shall give rise to any rights or offset or deduction against the rents
payable under this Lease. If any superior lessor or any mortgagee to which
Tenant agrees to attorn, as aforesaid, reasonably requests a further instrument
expressing such attornment, Tenant agrees to execute the same promptly, and
if
Tenant fails to do so, Tenant hereby appoints Owner Tenant’s attorney-in-fact to
execute any such instrument for and on behalf of Tenant. This appointment is
coupled with an interest and is irrevocable.
58.
TENANT’S CERTIFICATE
A.
At any
time and from time to time upon at least ten (10) days’ prior written notice by
the Owner to the Tenant, the Tenant shall without charge execute, acknowledge
and deliver to the Owner a statement in writing, in recordable form, addressed
to such party as the Owner may designate prepared by the Owner or in form
satisfactory to the Owner certifying any of the following information as may
be
requested (a) that this Lease is unmodified and in full force and effect (or
if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), (b) whether the term of the Lease
has
commenced and the rent and additional rent have become payable hereunder and,
if
so, the dates to which they have been paid, (c) whether or not, to the best
knowledge of the Tenant, the Owner is in default in the performance of any
of
the terms of this Lease and, if so, specifying each such default of which the
Tenant may have knowledge, (d) whether the Tenant has accepted possession of
the
Demised Premises, (e) whether the Tenant has made any uncollected claims against
the Owner under this Lease and, if so, the nature thereof and the dollar amount,
if any, of such claims, (f) whether there exist any offsets or defenses against
enforcement of any of the terms of this Lease upon the part of the Tenant to
be
performed and, if so, specifying the same and (g) such further information
with
respect to the Lease or the Demised Premises as the Owner may reasonably
request, it being intended that any such statement delivered pursuant hereto
may
be relied upon by any prospective purchaser of the Building or any part thereof
or of the interest of the Owner in any part thereof, by any mortgagee or
prospective mortgagee thereof, by any lessor or prospective lessor thereof,
by
any lessee or any prospective lessee thereof or by any prospective assignee
of
any mortgage thereof.
B.
The
failure of the Tenant to execute, acknowledge and deliver to the Owner a true
statement in accordance with the provisions of this Article 58 A within the
aforesaid ten (10) day period shall constitute an acknowledgment by the Tenant,
which may be relied upon by any person who would be entitled to rely upon any
such statement that such statement as submitted by the Owner is true and
correct.
59.
TENANT’S REMEDIES
With
respect to any provision of this Lease whereby Owner’s consent or approval is
required or as to any other matter where Owner’s consent is requested, Tenant in
no event shall be entitled to make nor shall Tenant make, any claim (and Tenant
hereby waives any such claim) for money damages; nor shall Tenant claim any
money damages by way of set off, counterclaim or defense, based upon any claim
or assertion by Tenant that Owner has unreasonably withheld or unreasonably
delayed any consent or approval, but Tenant’s sole remedy shall be an action or
proceeding in equity to enforce any such provision or for specific performance,
injunction or declaratory judgement.
60.
[INTENTIONALLY OMITTED]
61.
[INTENTIONALLY OMITTED]
62.
ASSIGNMENT AND SUBLETTING
(a)
Tenant shall not, by operation of law or otherwise, assign, mortgage or encumber
this Lease, nor sublet all or any part of the Demised Premises or permit the
Demised Premises or any part thereof to be used by others, without Owner’s prior
written consent in each instance. The consent by Owner to any assignment or
subletting in no way shall be construed to relieve Tenant from obtaining Owner’s
express written consent to any other or further assignment or
subletting.
(b)
If
Tenant requests Owner’s consent to the assignment of this Lease or the
subletting of all of the Demised Premises, it shall submit in writing to Owner,
at the time it requests such consent the following material relating to the
proposed assignee or subtenant:
(i) the
name
and address;
(ii) the
terms
and conditions of the proposed assignment or subletting;
(iii) the
nature and character of the business to be conducted in the Demised
Premises;
(iv) financial
statement for the preceding two (2) years if it has been a business for that
period;
(v) banking,
financial and other credit information reasonably sufficient to enable Owner
to
determine the proposed assignee’s or subtenant’s financial responsibility;
and
(vi) such
other business or financial information reasonably requested by
Owner.
(c)
Owner
shall have the following options, exercisable by written notice to tenant
within12b
business
days after Tenant’s aforesaid request for Owner’s consent and the furnishing of
all requested information:
(i) Owner
may
require Tenant to execute an assignment or sublease to Owner or to anyone
designated by Owner on the same terms as the proposed assignment or sublease
without payment of any premium therefor;13
(ii) Owner
may
elect to terminate Tenant’s Lease on the effective date of the proposed
assignment or sublease, and Owner shall execute and deliver an instrument
releasing and discharging the Tenant from all obligations under this Lease
accruing after the effective date of such proposed assignment or sublet, and
Tenant shall vacate and surrender possession of the entire Demised Premises
in
accordance with the Lease on or before said effective date.
(d)
If
the Owner shall not exercise either of its foregoing options in subparagraph
(c)
hereinabove within the time set forth above, its consent to the proposed
assignment or subletting of all of the Demised Premises shall not be
unreasonably withheld, provided, however, that it may withhold consent therein
if in the reasonable exercise of its judgment it determines that:
1. The
financial condition and/or general reputation of the proposed assignee or
subtenant are not consistent with the extent of the obligations undertaken
by
the proposed assignment or sublease.
2. The
proposed use of the Demised Premises is not appropriate for the Building or
in
keeping with the character of the existing tenancies or permitted by the
Tenant’s Lease.
3. The
nature of the occupancy of the proposed assignee or subtenant is not in
accordance with the use provision of the Lease or will cause excessive density
of employees or traffic or make excessive demands on the Building’s services or
facilities or be an assignment or sublease to a school or employment or
placement agency.
4.
The
Tenant proposes to assign or sublet to one who at the time is a Tenant in
possession of premises in the Building of which the Demised Premises are a
part.14
5.
Such
proposed assignee or Subtenant would lower the value of the dignity or the
Building or adversely affect the interest of Owner.
6.
The
sublet is not for the entire Demised Premises.
(e)
If
Owner shall not exercise an option set forth in subparagraph (c) above within
the time limit provided therefor and if Owner shall not have withheld its
consent pursuant to subparagraph (d) above, its consent to the proposed
assignment or subletting shall not be withheld provided, however, that each
of
the following conditions first are complied with:
(i) Tenant
then shall not be in default under this Lease;
(ii) The
assignee shall execute an agreement, in form reasonably satisfactory to the
Owner, whereby such proposed assignee assumes performance of Tenant’s
obligations under this Lease and shall become jointly and severally liable
with
the Tenant for the performance thereof. The subletting agreement shall provide
that it is expressly subject to the terms and provisions of the
Lease;
(iii) A
duplicate original of the instrument of assignment and assumption agreement
or
sublease duly executed by the appropriate party, shall be delivered to the
Owner
before the assignee or subtenant shall be let into possession of the Demised
Premises;
(iv) Tenant
shall pay any expense, including, but not limited to15
attorneys’ fees and fees for financial investigation incurred in connection with
the review and/or preparation and/or execution of any documents submitted to
Owner relating to the proposed assignment or subletting including preparation
of
the consent. This provision shall not apply if Owner elects to terminate the
Lease pursuant to subparagraph (c) herein.
(f)
If
the Owner shall give its consent to any assignment of this Lease or to any
sublease, Tenant, in consideration therefor, shall pay to Owner, as additional
rent:
(i)
In
the case of an assignment, an amount equal to16a
all sums
and other considerations paid to Tenant by the assignee for or by reason of
such
assignment (including, but not limited to, sums paid for the sale of Tenant’s
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property, less, in the case of a sale thereof, the then net
underappreciated cost thereof determined on the basis of Tenant’s Federal income
tax returns;16b
and
(ii)
In
the case of a sublease16a
any
rents, additional charges or other consideration payable under the sublease
and
related agreements to Tenant by the subtenant which is in excess of the fixed
annual rent and additional rent accruing during the term of the sublease
pursuant to the terms of this Lease (including, but not limited to, sums paid
for the sale or rental of Tenant’s fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of the sale thereof,
the
then undepreciated cost thereof determined on the basis of Tenant’s Federal
income tax returns).16b
The
sums
payable under this subparagraph (f) shall be paid by Tenant to Owner as and
when
paid by the assignee or subtenant to Tenant.
(g)
Each
of the foregoing provisions and conditions shall apply to each and every further
assignment or subletting. An assignment of Lease or a subletting as above
provided shall not discharge or release from liability under the Lease the
Tenant or any other person, firm or corporation which previously shall have
assumed Tenant’s obligations hereunder, such liability to remain and continue
for the balance of the term and any option to renew contained in the Lease
with
the same force and effect as though no assignment had been
effected.
(h)
Any
transfer or issuance of shares which shall cause in the aggregate fifty percent
(50%) or more of the stock of Tenant or any assignee to be owned by any party
other than those parties who were Tenant’s shareholders or assignee’s
shareholders on the date of execution of this Lease or the effective date of
the
assignment shall be deemed an assignment of this Lease and shall require Owner’s
prior written consent in accordance with this Article 62.
(i)
In
the event that Owner exercises either of its options under subparagraph (c)
above, Owner shall have the absolute right to, and in no way shall be liable
to
Tenant if it shall, lease or further sublease the Demised Premises to Tenant’s
prospective assignee or subtenant, as the case may be.
(j)
If
Owner does not exercise its option and also withholds its consent to the
proposed assignment or subletting and it is established by a court or body
having final jurisdiction thereover that Owner has been unreasonable, the only
effect of such finding shall be that Owner shall be deemed to have given its
consent; but Owner shall not be liable to Tenant in any respect for money or
compensatory damages by reason of withholding its consent.17
(k)
In
the event that Tenant or any assignee or sublessee desires to assign or sublet,
it hereby designates the managing Agent as Tenant’s sole and exclusive Agent to
effect such assignment or subletting and agrees to pay said managing Agent
upon
the consent to assignment or sublease a commission computed in accordance with
the commission rates then in effect. Tenant acknowledges that it is aware that
the managing Agent represents the Owner and may also act with respect to other
competing space in the building and Tenant waives any right to make claim for
conflict of interest or for other damages.
18
(l)
In
the event of a sublease or assignment, the Tenant agrees to deposit an
additional security of19
rent,
escalations and additional rent due under this Lease at the then existing
rate.
(m)
No
action or consent by Owner to listing of names on the Building directory nor
acceptance of rent from any party other than Tenant shall be deemed a consent
to
any assignment or sublease of the Demised Premises nor a waiver of any of the
provisions hereof.
(n)
Anything herein to the contrary notwithstanding, conversion of Tenant or any
successor tenant to a limited liability partnership or company during the term
of this lease constitutes an assignment of the lease which requires the Owner’s
consent in its sole discretion.
19a
63.
END
OF TERM
A.
Tenant
hereby agrees to indemnify and save Owner harmless against all costs, expenses,
claims, losses or liability resulting from delay by Tenant in surrendering
the
Demised Premises upon the expiration or earlier termination of this Lease,
(Tenant’s Holdover) including without limitation any claims made by any
succeeding tenant founded on such delay. Such indemnity shall survive the
expiration or earlier termination of this Lease.
B.
Tenant
agrees that losses to Owner resulting from Tenant’s Holdover will be very
substantial, exceed the amount of Fixed Rent and additional rent payable
hereunder and be difficult of accurate measurement. Therefore, if Tenant shall
fail to vacate and surrender the Demised Premises as required hereunder, it
shall be deemed a holdover Tenant on a month-to-month basis at a fixed monthly
rent equal to20
times
the monthly rate of all Fixed Rent and additional rent payable for the last
month of the term hereof. The collection of the aforesaid rent shall not act
to
limit Owner’s rights to institute summary proceedings to obtain possession or
pursuant to this Article 63 or in the Lease or at law, but any such rent
collected will be non-refundable and shall be applied against any such
damages.
64.
EXHIBIT
Tenant
acknowledges and agrees that the diagram of the Demised Premises annexed hereto
as Exhibit A has not been drawn to scale, is an approximation of the actual
size
and location of the space involved and is not meant to be a representation
of
the actual size and location of the space involved. Tenant has had the
opportunity to and has made such inspection of the leased premises as Tenant
deems necessary.
65.
HEAD
NOTES
The
Article headings herein are only for convenience and are in no way to be
construed as a part of the agreement or as a limitation on the scope of any
provision thereof.
66.
ELECTRICITY
Owner,
at
Owner’s expense has distributed and will furnish electrical energy to or for the
use of Tenant in the Premises on a rent inclusion basis. There shall be no
charge to Tenant for such electric energy by way of measuring the same on any
meter or otherwise, such electric energy being included in Owner’s services
which are covered by the annual rental reserved hereunder. Tenant agrees that
pending an electrical survey as provided in this Article, the fixed annual
rental set forth on the first page of this Lease shall be increased by
$11,056.60 per annum (the “Electrical Inclusion Factor”) making a total fixed
annual rental of $142,236.60 per annum payable in equal monthly installments
of
$11,853.05. Owner shall not be liable in any way to Tenant for any failure
or
defect in the supply or character of electric energy furnished to the Premises
by reason of any requirement, act or omission of the public utility servicing
the Building with electricity or for any other reason not attributable to
Owner.
(A)
The
parties agree that although the charge for the distribution and furnishing
of
electrical energy is included in the rent on a so-called “Rent Inclusion” basis,
the value of such service may not be fully reflected in the rent. Accordingly,
Tenant agrees that Owner may cause an independent electrical consulting firm,
selected by Owner, to make a final determination following the execution of
this
Lease, of the full value to Tenant of such services supplied by Owner. The
consultant’s calculations and determinations of the electric charge, hereafter
referred to as “Electrical Inclusion Factor” shall be established by the
consultant by the use of this agreed upon method:
(i)
The
Demand factor (KW) applicable to the rate structure for each item consuming
electricity shall be arrived at by applying the Connected Load rating of each
item at 100% when related to Lighting, and at not less than 70% for items
related to Equipment.
(ii)
The
Energy factor (KWH) applicable to the rate structure shall be arrived at by
the
method of applying the Connected Load rating of each item, multiplied by the
hours of its usage for a one month period as determined by the
consultant.
(iii)
All
components of Consolidated Edison Company’s Service Classification and Rate
Schedule S.C. #4 Rate I in effect on the date of execution of this Lease, or
any
successor classification reflecting similar service, shall be utilized as the
basis for the determination of the Electrical Inclusion Factor. Tenant shall
pay
for electricity consumed thereby as determined and evaluated from time to time
by Owner’s electrical consultant, such payment to be additional rent, and to be
equal to what Tenant would pay for such consumption of electricity if it
purchased that amount of electricity from the public utility servicing the
Building under the rate structure and/or classification as set forth in this
section.
An
additional component shall be added to the rate schedule hereafter referred
to
as “Electric Service Charge” which shall reflect an adjustment to the rate
schedule at the rate of one cent per KWH to compensate the Owner for its cost
related to servicing the Electrical Inclusion Factor.
In
no
event shall the Electrical Inclusion Factor, as defined below, be decreased
below $11,056.60 per annum.
(B)
Subject to the provisions of subsections below, the parties agree that the
sum
of $11,056.60 per annum is included in the annual rental to cover the charge
for
electricity made available to Tenant in the Premises (“Electrical Inclusion
Factor”). If the public utility rate schedule for the supply of electric current
to the Building shall be increased or decreased (using the rate in effect on
the
date of execution of this Lease as the base rate), or if there occurs any other
cost adjustment resulting in an increase or decrease in electric charges, the
annual rental herein reserved shall be equitably adjusted to reflect the
increase or decrease in the Electrical Inclusion Factor and Tenant agrees to
pay
Owner the new annual rental rate resulting from such adjustment of the
Electrical Inclusion Factor. In no event, however, shall the Electrical
Inclusion Factor be decreased below the sum of $11,056.60 per annum. The parties
recognize that at the time of the execution of this Lease, the Electrical
Inclusion Factor is an arbitrary figure, not necessarily representing the true
value of electricity being supplied to the Premises. A survey may be made by
Owner’s consultant which shall incorporate methods for the determination of the
Electrical Inclusion Factor pursuant to Section A. When said survey is completed
and delivered to Tenant, the Electrical Inclusion Factor as set forth in said
survey shall become binding upon Tenant.
(C)
If it
shall be determined that the full value to Tenant of such service is in excess
of $11,056.60 per annum (such sum is referred to as the “Electrical Inclusion
Factor”) 21
by
increasing the Rent and the Electrical Inclusion Factor by an annual amount
equal to such excess. However, if it shall be so determined that the full value
to Tenant of such service does not exceed the Electrical Inclusion Factor,
no
such agreement shall be executed and there shall be no increase or decrease
in
the Rent or the Electrical Inclusion Factor by reason of such determination.
If
either the quantity or character of electrical service is changed by the public
utility corporation supplying electrical service to the Building or is no longer
available or suitable for Tenant’s requirements, no such change, unavailability
or unsuitability shall constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Owner, or its Agents, by reason of inconvenience or annoyance to Tenant,
or
injury to or interruption of Tenant’s business, or otherwise.
(D)
Owner
represents that the electrical feeder or riser capacity serving the Premises
on
the Commencement Date is adequate to serve the lighting fixtures and electrical
equipment installed in the Premises initially by Tenant. Subject to the
provisions of subsections of this Lease, any additional feeders or risers to
supply Tenant’s additional electrical requirements, and all other equipment
proper and necessary in connection with such feeders or risers, shall be
installed by Owner upon Tenant’s request, at the sole cost and expense of
Tenant, provided that, in Owner’s judgment, such additional feeders or risers
are necessary and are permissible under applicable laws (including, without
limitation, the New York State Energy Conservation Code) and insurance
regulations and the installation of such feeders or risers will not cause
permanent damage or injury to the Building or the Premises or cause or create
a
dangerous or hazardous condition or entail excessive or unreasonable alterations
or interfere with or disturb other tenants or occupants of the Building. Tenant
covenants that at no time shall the use of electrical energy in the Premises
exceed the capacity of the existing feeders or wiring installations then serving
the Premises. Tenant shall not make or perform, or permit the making or
performance of, any alterations to wiring installations or other electrical
facilities in or sewing the Premises or any additions to the business machines,
office equipment or other appliances in the premises which utilize electrical
energy without the prior consent of Owner in each instance.
(E)
Rate
Adjustment - If the cost to Owner of electricity shall have been, or shall
be,
increased from time to time by change in utility company’s electricity rates,
charges, fuel adjustment, or service classification or by taxes or charges
of
any kind imposed thereon, or for any other reason (“Electrical Change”), then
the Electrical Inclusion Factor, which is a portion of the fixed annual rent,
shall be increased in the same percentage. Any such percentage increase in
the
charge to the Owner shall be computed by the application of an avenged monthly
seasonal consumption (Demand and Energy) of electricity which shall reasonably
reflect such consumption of the entire Building based on a period of twelve
(12)
full months prior to the rate change, other change in cost, or any changed
method of or rules on billing for same, on a consistent basis to the new rate
and/or service classification. The following method of computation shall be
employed in making the percentage differential determination applicable to
the
Electrical Inclusion Factor.
(i)
Owner’s bills from the public utility corporation providing electricity to the
Building for the twelve (12) month period immediately preceding the Electrical
Change in question shall be averaged for demand and consumption (KW and KWH)
and
the rate structure in effect immediately prior to the Electrical Change in
question shall be applied to the average demand and consumption factors of
Owner’s xxxxxxxx for the Building for said twelve (12) month period resulting in
an agreed determination of the cost to Owner of electricity for the Building
immediately prior to the Electrical Change in question;
(ii)
The
new rate structure pursuant to which Owner is billed by the public utility
corporation, i.e., the rate structure which includes the Electrical Change
in
question, shall be applied to the average demand and consumption factors of
Owner’s xxxxxxxx for the Building for said twelve (12) month period resulting in
an agreed estimate of the cost to Owner by reason of the Electrical Change
in
question;
(iii)
The
difference in the costs determined pursuant to the foregoing subdivisions (i)
and (ii) shall be deemed the amount of the estimated annual change in cost
and
the amount of such estimated annual change in cost shall be divided by the
cost
determined pursuant to the foregoing subdivision (i); and
(iv)
The
resulting quotient shall be applied to Tenant’s then current Electrical
Inclusion Factor to produce the increase or decrease in the Rent and Electrical
Inclusion Factor.
Any
increase in the rent related to rate increases shall be payable by Tenant from
the date of effectiveness of the revised rate schedule. In no event, however,
shall the Electrical Inclusion Factor be decreased below the sum of
$11,056.60.
(F)
Fuel
and Tax Adjustment Charges - If the cost to Owner of electricity shall be
increased from time to time by changes in the fuel adjustment and/or any other
charges imposed on the Owner by the utility company, then the Tenant agrees
to
pay to Owner, as additional rent as and when billed from time to time, an amount
equal to Tenant’s pro rata share of increased adjustment costs to the
Owner.
(G)
Owner
reserves the right to discontinue furnishing electricity to Tenant in the
Premises on not less than thirty (30) days’ notice to Tenant. If Owner exercises
such right to discontinue, or is compelled to discontinue furnishing electricity
to Tenant, this Lease shall continue in full force and effect and shall be
unaffected thereby, except only that from and after the effective date of such
discontinuance, Owner shall not be obligated to furnish electricity to Tenant
and the Rent shall be reduced by an amount equal to the Electrical Inclusion
Factor. If Owner so discontinues furnishing electricity to Tenant, Tenant shall
arrange to obtain electricity directly from the public utility or other company
servicing the Building. Such electricity may be furnished to Tenant by means
of
the then existing electrical facilities serving the Premises to the extent
that
the same are available, suitable and safe for such purposes. All meters and
all
additional panel boards, feeders, risers, wiring and other conductors and
equipment which may be required to obtain electricity, of substantially the
same
quantity, quality and character, shall be installed by Owner: (a) at Owner’s
expense, if Owner shall discontinue furnishing electricity to Tenant voluntarily
or shall have been compelled to do so by reason of any act or omission of Owner
in violation of any law or rule or regulation; or (b) at Tenant’s expense, if
Owner shall have been compelled to discontinue furnishing electricity to Tenant
by reason of any act or omission of Tenant in violation of any law, rule or
regulation; or (c) at the equal expense of Owner and Tenant, if such
discontinuance shall have been by compulsion of law or of any rule or regulation
and not by reason of any act or omission of Owner or Tenant in violation of
any
Law or any rule or regulation. Owner shall not voluntarily discontinue
furnishing electricity to Tenant unless it likewise discontinues furnishing
electricity to all tenants of office space above the second floor of the
Building or until Tenant is able to receive electricity directly from the public
utility or other company servicing the Building but Tenant shall upon notice
from Owner proceed diligently to make provision so as to receive electricity
directly.
(H)
Owner
shall not be liable to Tenant in any way for any interruption, curtailment
or
failure, or defect in the supply or character of electricity furnished to the
Premises by reason of any requirement, act or omission of Owner or of any public
utility or other company servicing the Building with electricity or for any
other reason.
(I)
The
Electrical Inclusion Factor shall be subject to periodic adjustments upon the
occurrence of any increase in Tenant’s electric connected load and/or usage
subsequent to the initial or any revised Electrical Inclusion Factor currently
in effect, which was partially based on demand and usage factors as determined
by Owner’s consultant. Owner may, at its option, from time to time, have its
electric rate firm resurvey the Premises and adjust the Electrical Inclusion
Factor to reflect such changes, employing methods of determination as heretofore
set forth within this Rider. In no event, however, shall the Electrical
Inclusion Factor be decreased below the annual rate of $11,056.60.
(J)
In
the event Tenant disagrees with the Electrical Inclusion Factor as billed by
Owner, Tenant shall nevertheless pay the same as billed until the dispute has
been resolved. If the same is subsequently reduced as hereinafter set forth,
Tenant shall be allowed credit against rent for any overpayment. Tenant’s
electrical consultant (paid by Tenant) and Owner’s electrical consultant (paid
by Owner) shall attempt to resolve the dispute. In the event they are unable
to
do so, they shall select a third electrical consultant (to be paid one half
by
Owner and one half by Tenant) whose determination shall be binding upon both
parties.
67.
RENT
CONCESSION
Provided
that Tenant shall have performed all the terms, covenants and conditions of
this
Lease on the part of Tenant to be performed, the fixed rent for the first six
months of the term of this Lease shall be $921.38 per month. Otherwise, the
fixed rent shall be that set forth on the first page of this Lease and in
Article 66 above.
68.
OWNER’S WORK
Owner
agrees, at Owner’s cost and expense, to do the work set forth in the Workletter
attached hereto.
69.
TERMINATION
Provided
that Tenant is not then in default under this Lease, Tenant shall have the
option to end the term of this Lease effective March 31, 2003 or at the end
of
any calendar month thereafter by giving Owner no less than21a
prior
written notice of Tenant’s intention to do so. In the event Tenant exercises the
foregoing option, Tenant shall pay to Owner in consideration thereof, along
with
Tenant’s notice, the sum of $50,000. In the event Tenant exercises this option
effective on any date later than March 31, 2003, said consideration shall be
equal to the product obtained by multiplying $50,000 by the fraction the
numerator of which is the number of calendar months remaining in the term of
this Lease after the effective date of the exercise of Tenant’s option, and the
denominator of which is 43.
22
FOOTNOTES
TO Lease AND RIDER
between
XXXXXX
X. DAY REALTY CORP., as Agent
for
000 Xxxxx Xxxxxx Associates
and
ASSET
ALLIANCE CORPORATION, a Delaware corporation
|
1.
|
If
Tenant requests in writing that Owner do so, Owner will state at
the time
Owner consents to such installation, whether Owner elects to have
such
installation removed by Tenant. Owner agrees Tenant may determine
to
remove or not to remove Tenant’s initial installation at the end of the
term of this Lease. If Owner requires the installation to be removed
by
Tenant.
|
|
2.
|
If
as a result of any such repairs, alterations, additions or improvements
the demised premises become untenantable for ten or more consecutive
business days and as a result thereof Tenant ceases to conduct Tenant’s
business in the demised premises, then rent and additional rent shall
be
abated commencing on the eleventh such business day and continuing
until
the earlier of the date that the demised premises become tenantable
or
Tenant resumes the conduct of Tenant’s business in the demised
premises.
|
|
3.
|
If
the demised premises are totally damaged or rendered wholly unusable
by
fire or other casualty and repair and restoration of the same is
not
substantially completed within one hundred fifty days after such
fire or
other casualty, Tenant may give Owner written notice that unless
repair
and restoration of said demised premises is substantially completed
within
thirty days after the date of such notice, Tenant will end the term
of
this Lease. In the event such repair and restoration is not substantially
completed within thirty days after the date of such notice, Tenant
may at
any time thereafter and prior to substantial completion of such repair
and
restoration give Owner a second notice ending the term of this Lease,
whereupon the term of this Lease shall end on the date of such second
notice as if such date was the date set forth in this Lease for the
end of
the term for this Lease.
|
| 4. |
See
article 62 below.
|
| 5. |
on
prior oral notice.
|
| 6. |
20
|
|
6a.
|
If
as a result of Tenant’s compliance with this Article the demised premises
become untenantable for ten or more consecutive business days and
as a
result thereof Tenant ceases to conduct Tenant’s business in the demised
premises, then rent and additional rent shall be abated commencing
on the
eleventh such business day and continuing until the earlier of the
date
that the demised premises become tenantable or Tenant resumes the
conduct
of Tenant’s business in the demised
premises.
|
|
7.
|
(a)
|
At
any time, Tenant may furnish Owner a binding, unconditional, irrevocable
standby letter of credit in form reasonably satisfactory to Owner,
in
amount equal to the security required to be deposited by Tenant under
the
Lease, to be issued by a commercial bank or savings bank located
in New
York City reasonably acceptable to Owner payable to Xxxxxx X. Day
Realty
Corp., as Agent for the Owner, 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X.
00000
and to expire not earlier than 1 year from the date of issuance thereof
(the “Letter of Credit”) and to be renewed on a year -to-year basis unless
the bank shall have notified Owner at least 90 days before the expiration
of the Letter of Credit that it is not renewing the Letter of Credit
for
the following year. The Letter of Credit shall have a final expiration
date at least 30 days after the date set forth in this Lease for
the
expiration of the term of this Lease. Owner shall have the right
to
present the Letter of Credit and draw the full amount thereof upon
submitting a written notice to the issuer specifying any of the following
events:
|
|
(i)
|
If
Tenant shall default in payment of any fixed rent, escalations or
additional rent for 10 days after the same shall become due and such
default shall not be cured;
|
|
(ii)
|
If
Tenant shall default in the performance or observance of any other
covenant or condition of this Lease on the part of Tenant to be performed
or observed and such default shall not be cured after Owner shall
have
given Tenant written notice thereof, as provided in this Lease;
or
|
|
(iii)
|
If
Owner shall have received a notice from the bank that it is not renewing
the Letter of Credit for the following year and Tenant has not delivered
a
substitute letter of credit to
Owner.
|
|
(b)
|
Upon
receipt of the proceeds of the Letter of Credit, Owner shall hold
the same
subject to the provisions of Articles 34 and 48 of this Lease, as
security
for the full and faithful performance and observance by Tenant of
all of
the covenants and conditions of this Lease on its part to be performed
or
observed (collectively, “Tenant’s obligations”). Tenant shall not be
entitled to have said security deposit, or any part thereof, applied
in
payment of any installments of rent or additional rent falling due
under
this Lease, but only to have the same returned to it upon the expiration
or earlier termination of this Lease, provided Tenant shall not then
be in
default hereunder, or if then in default, after Tenant has fully
cured
such default.
|
|
(c)
|
If
the Letter of Credit shall be in effect upon the expiration or earlier
termination of this Lease, the Letter of Credit shall be surrendered
by
Owner for cancellation, provided Tenant shall not then be in default
under
this Lease.
|
|
(d)
|
In
the event of a sale or Lease of the Building, Owner shall have the
right
to transfer the security to the vendee or lessee and Owner shall
thereupon
be released by Tenant from all liability for the return of such security;
and Tenant agrees to look solely to the new owner for the return
of said
security; and it is agreed that the provisions hereof shall apply
to every
subsequent transfer or assignment made of the security to a new
Owner.
|
|
(e)
|
Except
in connection with an assignment permitted under this Lease, Tenant
further covenants that it will not assign or encumber or attempt
to assign
or encumber the Letter of Credit deposited herein as security and
that
neither Owner nor its successors or assigns shall be bound by any
such
assignment, encumbrance, attempted assignment or attempted
encumbrance.
|
|
8.
|
so
long as Owner delivers to Tenant a xxxx for Tax Payment within two
years
after the expiration of the Tax Year for which such tax is
due.
|
|
9
|
H.
|
It
is understood by Tenant that Owner may obtain and accept reductions
in the
proposed assessed valuation of the Building in a settlement in a
Tax Year
during the term of this Lease before the Owner has paid the Taxes
and such
reduction will substantially reduce the real estate tax escalation
for the
Tax Year due from Tenant under this Article. Tenant therefore agrees
the
expenses of the Owner in obtaining such reduction, including reasonable
legal fees, accounting fees, appraisal fees and other expenses shall
be
deemed to be Taxes paid for the Tax Year of said
reduction.
|
In
the
event the Taxes for any Tax Year during the term of this Lease shall be reduced
after Tenant shall have paid Tenant’s Share of any excess thereof in respect of
such Tax Year pursuant to this Article, Owner shall allow Tenant a credit
against future rent, or issue a refund to Tenant (if the term of this Lease
shall have expired) in the amount of Tenant’s Share of the refund (including any
interest paid on such refund by the taxing authority) of such Taxes received
by
Owner (after deduction of expenses, including legal fees, accounting fees,
appraisal fees and other expenses incurred by Owner in obtaining such
refund).
|
9a.
|
In
clarification of the foregoing, in the event Owner imposes an Operating
Expense increase for any Operation Year, then Tenant shall not be
required
to pay a Wage Formula Increase under Article 40 for such
year.
|
|
10.
|
,
mortgage amortization and interest payments; nonmonetary items such
as
depreciation; income or equivalent taxes; expenses incurred in leasing
or
procuring new tenants, including leasing commissions, advertising
expenses, legal fees and expenses of renovating space for new tenants;
legal expenses for enforcing the terms of any ground Lease or any
mortgage; wages, salaries and other compensation paid to any executive
employee above the grade of building manager and the wages of any
building
manager shall be apportioned to the extent the building manager supervises
more than one building; capital replacements, improvements and alterations
for the building above the amount amortized by Owner on Owner’s tax return
for that year; expenses for which Owner has received insurance or
condemnation proceeds; electricity to the extent that the cost is
reimbursed to Owner by tenants.
|
|
10a.
|
Owner
will not exercise the option set forth in this article more than
once
during the term of this Lease and will not revoke the exercise of
such
option more than once during the term of this
Lease.
|
|
11.
|
Tenant
shall not be required to make any payment under this article by reason
of
alterations required to be made by laws in effect as of the date
of
execution of this Lease.
|
|
11a.
|
In
the event Owner collects the proceeds of the Letter of Credit referred
to
in footnote 7 above, or if Tenant at any time during the term of
this
Lease shall deposit cash security with Owner in lieu of or in addition
to
a Letter of Credit, the provisions of this Article shall
apply.
|
|
12.
|
Owner
agrees to clean the demised premises in accordance with the attached
cleaning specifications.
|
| 12a. |
by
Tenant or its employees, invitees, licensees, agents or
contractors
|
| 12b. |
ten
|
|
13.
|
In
the event of such assignment, Tenant shall be released from any obligation
under this Lease accruing after the effective date of such assignment;
in
the event of a sublease, Tenant shall not be required to pay to Owner
any
rent or additional rent not received by Tenant from the subtenant
during
the term of the sublease;
|
| 14. |
and
other comparable space is available in the
building.
|
| 15. |
reasonable
|
| 16a. |
50%
of
|
|
16b.
|
,
brokerage commissions and alteration expenses incurred by Tenant
in
connection with such transaction
|
|
17.
|
In
the case of a claim by Tenant that Owner unreasonably withheld or
delayed
consent to any sublease or assignment, Owner and Tenant hereby agree
that
the following provisions shall apply: upon the written request of
Tenant,
the dispute either (i) shall be submitted to the American Arbitration
Association (the “Association”) for disposition pursuant to the “Expedited
Procedures” of the Association, if available, or (ii) shall be submitted
to the president of the Real Estate Board of New York, Inc. who shall
appoint a single arbitrator to decide the dispute; in the event said
president refuses to do so, the dispute shall be resolved in accordance
with clause (i). If the President of the Real Estate Board agrees
to
appoint an arbitrator, he shall appoint the arbitrator within three
days
and the arbitrator will hold a hearing and decide the dispute within
seven
days of his appointment. The decision of the arbitrator shall be
final,
and all actions necessary to implement the decision of the arbitrator
shall be undertaken as soon as possible, but in no event later than
ten
(10) business days after the rendering of such decision. Judgment
upon the
decision or any award rendered may be entered in any court having
jurisdiction thereof. All fees payable to the Association or the
Real
Estate Board or the arbitrator for services rendered in connection
with
the resolution of the dispute shall be paid for by the party suffering
the
adverse decision of the Association. For purposes of this Article,
the
phrase “Expedited Procedures of the Association” shall mean those
procedures set forth in paragraphs 53 through 58 of that certain
booklet
published by the Association and titled “Commercial Arbitration Rules”, as
amended and in effect March 1,
1986.
|
|
18.
|
The
exclusive set forth in this Article 62(k) shall continue for 90 days
and
if within 270 days after the expiration of the aforesaid 90 day period
there is an assignment or sublease to a party introduced by the managing
Agent within the exclusive 90 day period, then the managing Agent
shall be
entitled to a commission in accordance with its usual rates. In the
event
that Tenant assigns or subleases without advertising (except in
professional journals) and without utilizing the services of a broker,
finder or consultant, then the provisions of this Article 62(k) shall
not
apply.
|
| 19. |
one
month’s
|
|
19a.
|
(o)
Provided that Tenant is not then in default under this Lease Tenant
may
without Owner’s consent assign this Lease to an affiliate of Tenant
provided that Tenant gives Owner prior written notice thereof, including
the name of said affiliate and furnishes Owner with a copy of the
instrument of assignment and provided further that said affiliate
shall
assume the obligations of Tenant under this Lease. An affiliate of
Tenant
shall be deemed to be an entity controlled by, controlling or under
common
control with Tenant.
|
|
(p)
|
Provided
that Tenant is not then in default under this Lease Tenant may without
Owner’s consent sublet up to two offices within the demised premises
(without further demises the demised premises) provided that Tenant
gives
Owner prior written notice thereof, including the name of any such
subtenant, and furnishes Owner with a copy of the sublease. In connection
with any such sublease, the other provisions of this Article shall
not
apply. No such subletting under this subparagraph (p) shall be for
any of
the uses set forth in Article 51 of this
Lease.
|
| 20. |
1
1/2
|
| 21. |
,
the Lease shall be deemed modified effective on the date Owner requests
such survey
|
| 21a. |
120
days
|
| 22. |
70. TENANT’S
SIGN
|
Tenant
may install at Tenant’s expense erect a sign on the floor and if feasible,
install colored logos on the glass plate floor indicator in the elevator, so
long as Owner consents to the size, style and content of such signs. Owner
agrees without charge to Tenant to provide 8 listings on the building director
in the lobby for Tenants and its affiliates and sublesses. Tenant agrees to
give
Owner prior notice of the full names of any affiliates of Tenant which may
occupy the demised premises.
71. OWNER’S
WORK (CONTINUED)
Owner
agrees that in doing the work set forth in the work letter referred to in
Article 68 above, Owner will comply with the Americans with Disabilities Act.
In
the event asbestos is found in the demised premises which has not been
introduced into the demised premises by Tenant, Owner will remove or encapsulate
the same as required by law.
72. FREIGHT
ELEVATORS
Owner
agrees that Tenant may use the freight elevator for Tenant’s move into the
building after regular business hours without charge. Tenant may also use the
freight elevator without charge for accepting deliveries of furniture to Tenant
within the first year of the term of this Lease.
73. FIRST
OFFER
If,
during the terms of this Lease, the adjoining space on the sixteenth floor
of
the building becomes vacant, then provided Tenant shall not then be in default
under this Lease beyond any applicable notice and cure time, Tenant shall have
the right of first offer upon the terms and conditions set forth in this Article
for said adjoining space, when such space becomes available. Owner shall submit
to Tenant for the approval of Tenant a Lease Proposal which shall contain the
rent, electric charge, escalations and other terms for a lease term that will
expire on the termination date of this Lease. Tenant shall have 30 days to
notify Owner of Tenant’s acceptance of the Lease Proposal. The failure of Tenant
so to notify Owner in writing within 30 days shall be conclusively deemed a
rejection by Tenant. Tenant agrees within 30 days after notifying Owner that
Tenant accepts the Lease Proposal to execute a lease for said adjoining space
upon the terms and conditions set forth in the Lease Proposal and otherwise
upon
the terms and conditions set forth in this Lease.
74. CABLE
TELEVISION
The
building is presently wired for cable television; Tenant shall have access
to
such cable connection.
75. DEMISED
PREMISES; TEMPORARY SPACE
In
the
event Owner’s work in the demised premises has not been substantially completed
on or before November 1, 1996, Owner agrees Owner will pay any penalty incurred
by Tenant, not exceeding $5,000, in holding over in its present space at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, provided that Tenant shall first pay such
penalty and shall exhibit to Owner a copy of the xxxx from the landlord of
00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and a copy of Tenant’s check in payment of the
same.
In
the
event Owner’s work in the demised premises has not been substantially completed
by December 1, 1996 Owner leases the Tenant and Tenant hires from Owner
Temporary Space consisting of the portion of the eighteenth floor of the
building that is shown on the attached floor plan (the “Temporary Space”).
Tenant has inspected the Temporary Space and accepts the same “as is”. All of
the other terms, comments and conditions of this Lease shall apply to the
leasing by Owner to Tenant of the Temporary Space, except that Tenant shall
pay
fixed rent for the Temporary Space of $921.38 per month including electricity,
which shall be prorated for any portion of the month that Tenant occupies the
Temporary Space.
After
Owner has substantially completed Owner’s work in the demised premises as set
forth in the attached Work Letter, Owner shall give Tenant notice thereof and
Tenant agrees to quit and surrender the Temporary Space in accordance with
Article 22 of this Lease and move into the demised premises within ten (10)
days
after such notice. The fixed annual rent provided in this Lease for the demised
premises such commence on and be prorated from the eleventh (11) day after
such
notice and the rent for the Temporary Space shall be prorated to the date Tenant
quits and surrenders the Temporary Space. In the event the Tenant holds over
in
the Temporary Space after the tenth (10) day following Owner’s notice, Tenant
shall pay rent for the Temporary Space as set forth in this Lease for the
demised premises without giving effect to Article 67 of this Lease. Nothing
in
this Article shall prevent Owner from commencing a holdover proceeding against
Tenant in the event Tenant holds over in the Temporary Space beyond the tenth
day after Owner’s notice.
Bennet
Design Group, Inc.
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX, 00000
000-000-0000
September
10, 1996 Revised
Asset
Alliance Corporation
000
Xxxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX
WORK
LETTER
Landlord
agrees, at it’s sole expense and without charge to tenant, shall cause to be
prepared the following architectural drawings and specifications: AND THE
LANDLORD WILL BUILD THE SPACE PURSUANT TO LEASE ARTICLE #68.
| A. |
GENERAL
CONSTRUCTION:
|
| 1. |
DEMOLITION:
|
As
per
plan C - 1 dated September 3, 1996.
| 2. |
PARTITIONS:
|
| a) |
Building
standard partitioning as per approved plan # C - 1 dated September
3,
1996.
|
| b) |
Wood
and frame less clear glass at room # 1 & 3 ( Approximately 21 linear
feet.)
|
| 3. |
DOORS,
FRAMES & HARDWARE:
|
|
a)
|
Seven
( 7 ) xxxxxx xxxx and glass doors 3’ - 0” x 8’ - 0’ with true mullions ( 3
x 7 ) with frosted panes, with 1” clear
borders.
|
| b) |
One
( 1 ) pair of full height xxxxxx xxxx closet
doors.
|
|
c)
|
Lever
door pulls - brushed chrome ( all doors ). Locks on three ( 3 ) office
doors. Dead bolt and 8” sq. face plate for front entry
doors.
|
| d) |
All
doors to have Dome floor stops and
silencers.
|
| 4. |
CEILINGS:
|
a) New
2’ x
2” full line (Xxxx or approved equal ) with white “cirrus” style lay -in tiles.
As per plan RC - 1, dated September 3, 1996.
b) Raised
ceiling area in conference room #3 approximately 6’ - 0” x 8’ - 0” x 6” with
continuous xxxxxx xxxx fascia trim.
| 5. |
AIR
CONDITIONING:
|
| a) |
Modify
existing diffusers to conform to new partition
layout.
|
| 6. |
LIGHTING
/ ELECTRIC:
|
| a) |
Two
( 2 ) new building standard 2 x 4 fluorescent
fixtures.
|
| b) |
Twenty
two ( 22) new building standard recessed incandescent down lights.
(One at
lobby entry ).
|
| c) |
Three
( 3) new building standard recessed incandescent with emergency 24
hour
packs.
|
| d) |
Nineteen
( 19 ) incandescent wall mounted sconces ( $250.00 allowed for
each
).
|
| e) |
Four
( 4 ) dimmers and four ( 4 )
switches.
|
| f) |
Two
( 2 ) new exit lights.
|
| g) |
One
( 1 ) new pendant incandescent fixture ( $250.00 allowance
)
|
| 7. |
POWER
/ ELECTRIC:
|
|
a)
|
Existing
circuits and outlets to remain. Relocate all affected by demo and
new
partition layout.
|
|
b)
|
Three
( 3 ) new double duplex outlets.
|
|
c)
|
One
( 1 ) floor duplex outlet and one ( 1 ) floor conduit with box for
phone
and data line.
|
|
d)
|
Three
( 3 ) new 20 amp 115 volt dedicated quad
outlet.
|
|
8.
|
PAINTING:
|
|
a)
|
Paint
in colors selected by tenant - eggshell
finish.
|
|
9.
|
FLOOR
COVERING:
|
|
a)
|
Plank
xxxxxx xxxx floor in reception and wood border ( minimum 1’ - 0” width )
on conference room ( approximately: 350 sq. ft.). ( Random width
with wood
pegs with plywood subfloor).
|
|
b)
|
Upgraded
building standard carpet - color to be selected by tenant ( all offices
$28.00 per yard allowance ).
|
|
c)
|
Building
standard vinyl composition floor tile room # 11 - colors selected
by
tenant.
|
|
d)
|
Wood
base ( 4” high ) all areas / offices except building standard vinyl base
in room # 11.
|
|
10.
|
MILLWORK:
|
|
a)
|
One
( 1 ) reception desk - xxxxxx xxxx (3’ - 0” x 6’- 0”) with 5’ x 2’ return
and gate and marble ledge.
|
|
b)
|
Wood
panel chair rail wainscot and base ( room # 1 ) (approximately 92
linear
feet x 2’ - 6” high).
|
|
c)
|
Wood
chair rail and base in corridor # 10 and conference room
#3.
|
|
d)
|
One
( 1 ) media cabinet - xxxxxx xxxx office # 4 ( approximately 10’ - 0’ long
2’ - 0” deep x 2’ -6 “ high).
|
|
e)
|
One
( 1 ) xxxxxx xxxx bookcase with adjustable shelves and four file
draw for
office # 4 (approximately 10’ - 0” long x 2’ - 6” high x 1’ - 0” deep
).
|
|
f)
|
Secretaries
work station - room #5 - xxxxxx xxxx surround 3’ - 6” high x 6’ - 6” long
with plastic laminate top 14’-0” long x 2’ - 0” wide x 1 1/2” thick and
wall MTD storage cabinet with task lighting and up light approximately
12’
6” long x 2’ - 6” high x 1’ - 1”
deep.
|
|
g)
|
Xxxxxx
xxxx xxxxxxxx xxxxxxxxxx - xxxx # 0, 0 , 0 and 9. ( Low bookcase
at room
#3 and 5 ).
|
|
h)
|
Xxxxxx
xxxx entry door surround and two side panels (approximately 4’ - 0” x 8’ -
0” high).
|
|
i)
|
Pantry
- cabinets - base with sink and all required plumbing 4’ - 0” x 2’ - 0” x
3’ - 0” high and wall MTD cabinet 4’ - 0” x 1’ - 0” room #11
.
|
|
j)
|
Storage
room #11 counter approximately 2’ - 0” x 17’ - 0” long and two adjustable
shelves approximately 1’ - 0” x 14’ - 0” long
each.
|
|
k)
|
Built
- in storage cabinets at wainscot column - room #1 (
3-sections)
|
|
I)
|
Trading
room # 7 twenty five ( 25) linear feet. 2’ - 0” deep counters and 15’ - 0”
wall MTD cabinet, approximately 1’ - 3” deep x 1” - 3” high.( plastic
laminate finish ).
|
NOTE:
All
wood finishes to be selected by tenant. - See C - 1 and F - 1 dated September
3,
1996.
|
11.
|
WINDOW
TREATMENT:
|
|
a)
|
Building
standard solar veils added in color selected by
tenant.
|
NOTE:
All
work done by landlord and or tenant shall comply with the New York State
Building Department code requirements.
Any
additional equipment or work over and above that is specified in the Work Letter
must receive approval of lessor, in advance, and shall be performed at lessees
expense.
|
B.
|
WORK
AT TENANT’S SOLE COST AND EXPENSE:
|
(Unless
specified in above Work Letter)
| a) |
Furniture
and furnishings.
|
| b) |
Telephone
and data equipment and cabling.
|
| c) |
Any
above standard finishes and cabinetwork ( unless specified
above).
|
CLEANING
SPECIFICATIONS
General
Office Areas
Nightly
| a. |
Damp
mop all stone ceramic tile, terrazzo and other types of unwaxed
flooring.
|
|
b.
|
Sweep
all vinyl, asphalt, rubber and similar types of flooring using an
approved
chemically treated cloth or treated
mop.
|
|
c.
|
Vacuum
clean carpeted areas, once per week. Sweep all private stairways
nightly
and vacuum if carpeted, once per
week.
|
|
d.
|
Hand
dust and wipe clean with damp or chemically treated cloth all furniture,
file cabinets, fixtures, window xxxxx and convector enclosure tops,
once
per week.
|
| e. |
Dust
all telephones.
|
| f. |
Dust
all chairs, rail trim, etc., once per
week.
|
|
g.
|
Empty
and clean all waste receptacles and remove wastepaper and waste materials
to a designated area. (Plastic liners provided once per week by
Contractor.)
|
| h. |
Damp
dust interiors of all waste disposal
receptacles.
|
| i. |
Empty
and wipe clean all ash trays and screen all sand
urns.
|
| j. |
Wash
clean all water fountains and water
coolers.
|
| k. |
Clean
all furniture tops.
|
| l. |
Remove
fingermarks and dust doors of elevator
batchways.
|
|
m.
|
This
cleaning and additional cleaning operations shall be scheduled so
that a
minimum number of lights are to be left on at all times. Upon completion
of the cleaning, all lights are to be turned off. All entrance doors
are
to be kept locked during this entire
operation.
|
General
Office Areas
Periodic
| a. |
Hand
dust all door louvers and other ventilating louvers within reach
once per
week.
|
| b. |
Dust
all baseboards once per week.
|
|
c.
|
Remove
fingerprints from all painted surfaces near light switches, entrance
doors, etc., once per week.
|
| d. |
Wipe
clean all bright work weekly.
|
| e. |
Mopfloors
in public and private stairways throughout building once per
week,
including doors as
needed.
|
| f. |
Move
and vacuum clean once per week underneath all furniture that can
be
moved.
|
| g. |
Dust
all picture frames, charts and similar hangings
quarterly.
|
| h. |
Dust
all vertical surfaces such as walls, partitions and doors
quarterly.
|
| i. |
Dust
exterior of lighting fixtures three times per year.
|
Public
Toilets - (excludes private lavatories)
Nightly
| a. |
Wash
all floors.
|
| b. |
Wash
all mirrors and powder shelves.
|
| c. |
Wash
all bright work.
|
| d. |
Wash
all plumbing fixtures.
|
| e. |
Wash
and disinfect all toilet seats, both
sides.
|
| f. |
Scour,
wash and disinfect all basins, bowls, urinals throughout all
toilets.
|
| g. |
Empty
paper towels receptacles and remove paper to designated
area.
|
| h. |
Fill
toilet tissue holder (tissue to be furnished by
contractor).
|
|
i.
|
Fill
soap dispenser system and fill paper towel dispenser (soap and towels
to
be supplied by contractor).
|
| j. |
Empty
and clean sanitary disposal
receptacles.
|
| k. |
Clean
and wash receptacles and dispensers
nightly.
|
| 1. |
Remove
fingerprints from painted surfaces.
|
| m. |
Report
all mechanical deficiencies, i.e. dripping faucets, etc., to Owner’s
representative.
|
|
n.
|
Remove
all unauthorized marks and writing from walls on night. Dust all
partitions and the tile walls
weekly.
|
Periodic
| a. |
Clean
and wash all partitions once a month: spot clean
daily.
|
| b. |
Scrub
floors once per month.
|
| c. |
Hand
dust, clean and wash all the tile walls twice each
year.
|
| d. |
High
dusting to be done once each quarter which includes lights, walls
and
grills.
|
| e. |
Wash
toilet lighting fixtures once per
year.
|
Public
Areas
|
a.
|
Daily,
police all public and private stairwells throughout the entire building
and keep in clean condition, sweep and damp mop same, once per
week.
|
| b. |
Inspect
and keep clean firehose, extinguishers and similar
equipment.
|
| c. |
Dust
all railing, etc., weekly and high dust
quarterly.
|
| d. |
Wash
all public corridor flooring as
necessary.
|
| e. |
Remove
all unauthorized marks and writing from walls on
sight.
|
|
f.
|
Damp
wipe vertical surfaces of public corridors and elevator lobbies as
often
as necessary but not less than once per
month.
|
