STANDARD FORM OF OFFICE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
3/1/90
AGREEMENT OF LEASE, made as of this 25th day of March 1999, between FIFTY BROAD
STREET, INC. AND FIFTY NEW STREET, INC., New York corporations having their
principal places of business c/o Cushman & Xxxxxxxxx, Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 party of the first part, hereinafter referred to as OWNER,
and Axiom Communications Group, Inc., a New York corporation party of the second
part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
Room 520 in the building known as 00 Xxxxx Xxxxxx in the Borough of Manhattan,
City of New York, for the term of (or until such term shall sooner cease and
expire as hereinafter provided) to commence on the First day of May nineteen
hundred and ninety nine (1999) and to end on the thirtieth day of April two
thousand and two (2002) both dates inclusive, at an annual rate of fifty six
thousand, two hundred and fifty and no cents ($56,250.00).
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that Tenant shall
pay the first monthly installment(s) on the execution hereof (unless this lease
be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
RENT OCCUPANCY
1. Tenant shall pay the rent as above and hereinafter provided.
2. Tenant shall use and occupy demised premises for executive offices
for Tenant's use and for no other purpose.
TENANT ALTERATIONS:
3. Tenant shall make no changes in or to the demised premises of any
nature without the Owner's prior written consent. Subject to the
prior written consent of Owner, and to the provisions of this
article, Tenant at Tenant's expense, may make alterations,
installations, additions or improvements which are non-structural
and which do not affect utility services or plumbing and electrical
lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall,
before making any alterations, additions, installations or
improvements, at its expense, obtain all permits, approvals and
certificates required by an 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 subcontractors 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 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 in Tenant's behalf, shall, upon installation,
become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to
Tenant no later than twenty days prior to the date fixed as the
termination of this lease, elects to relinquish Owner's right
thereto and to have them removed by Tenant, in which event the same
shall be removed from the 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 demise
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 approvals and certificates to
Owner and Tenants 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 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 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.
WINDOW CLEANING:
5. Tenant will not clean nor require, permit, suffer or allow any
window in the demised premises to be cleaned from 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.
REQUIREMENT OF LAW, FIRE INSURANCE, FLOOR LOADS:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and 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 attorney's
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 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 demise 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 is designed to carry and
which is allowed by law. Owner reserves the right to prescribe the
weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Owner's
judgement, to absorb and prevent vibration, noise and annoyance.
SUBORDINATION:
7. This lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part
and to all renewals, modifications, consolidations, replacements
and extensions of any such underlying leases and mortgages. This
clause shall be self-operative and no further instrument of
subordination shall be required by any ground or underlying lessor
or by any mortgagee, affecting any lease or the real property of
which the demised premises are a part. In confirmation of such
subordination. Tenant shall execute promptly any certificate that
owner may request.
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. I 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
therefore nor abatement or dimunition 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 licenses, 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.
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, until such repair shall be
substantially completed, shall be apportioned from the day
following the casualty according 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 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, 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, 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 an payments of rent made by Tenant which were
on account of any period subsequent to such date shall be returned
to Tenant. Unless Owner shall serve a termination notice as
provided for herein, Owner shall make the repairs and restorations
under the conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance
claims, labor troubles and causes beyond Owner's control. After any
such casualty, Tenant shall cooperate with Owner's restoration by
removing from the premises as promptly as reasonably possible, all
of Tenant's salvageable inventory and movable equipment, furniture,
and other property. Tenant's liability for rent shall resume five
(5) days after written notice from Owner that the premises are
substantially ready for Tenant's occupancy. (e) Nothing contained
herein above shall relieve Tenant from liability that may exist as
a result of damage from fire or other casualty. Notwithstanding the
foregoing, each party shall look first to any insurance in its
favor before making any claim against the other party for recovery
for loss or damage resulting from fire or other casualty, and to
the extent that such insurance is in force and collectible and to
the extent permitted by law. Owner and Tenant each hereby releases
and waives all right of recovery against the other or any one
claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only
if both releasors' insurance policies contain a clause providing
that such a release or waiver shall not invalidate the insurance.
If, and to the extent, that such waiver can be obtained only by the
payment of additional premiums, then the party benefiting from the
waiver shall pay such premium within ten days after written demand
or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant
acknowledges that Owner will not carry insurance on Tenant's
furniture and/or furnishings or any fixtures or equipment,
improvements, or appurtenances removable by Tenant and agrees that
Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of
the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof.
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 waive of any unexpired term of
said lease and assigns to Owner, Tenant's entire interest in any
such award.
ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or encumber
this agreement, nor underlet, or suffer or permit the demised
premises or any part thereof to be used by others, without the
prior written consent of Owner in each instance. Transfer of the
majority of the stock of a corporate Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises
or any party 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.
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 all times its use of electric current
shall not exceed the capacity of existing feeders to the building
or the risers or wiring installation and Tenant may not use any
electrical equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or interfere with the
use thereof by other tenants of the building. The change at any
time of the character of electric service shall in no wise make
Owner liable or responsible to Tenant, for any loss, damages or
expenses which Tenant may sustain.
ACCESS TO PREMISES:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any
time, and, at other reasonable times, to examine the same and to
make such repairs, replacements and improvements as Owner may deem
necessary and reasonably desirable to 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 in and through the demised premises 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 hours for the purpose of showing the same to prospective
purchasers or mortgagees of the building, and during the last six
months of the term for the purpose of showing the same to
prospective tenants. If Tenant is not present to open and permit an
entry into the 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 subsequently 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 demise 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.
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 enexpired portion of the term
demised and the fair and reasonable rental value of the demised
premises for the same period. In the computation of such damages
the difference between any installment of rent becoming due
hereunder after the date of termination and the fair and reasonable
rental value of the demised premises for the period for which such
installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such
premises or any part thereof, be relet by the Owner for the
unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such
reletting shall be deemed to be the fair and reasonable rental
value for the part or the whole of the premises so re-let during
the term of the re-letting. Nothing herein contained shall limit or
prejudice the right of the Owner to prove for and obtain as
liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages
are to be proved, whether or not such amount be greater, equal to,
or less than the amount of the difference referred to above.
DEFAULT:
17. 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 Section 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 fifteen (15) days after the
commencement of the term of this lease, then, in any one or more
of such events, upon Owner serving a written five (5) days notice
upon Tenant specifying the nature of said default and upon the
expiration of said five (5) 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 five (5) day period,
and if Tenant shall not have diligently commenced curing such
default within such five (5) day period, and shall not thereafter
with reasonable diligence and in good faith, proceed to remedy or
cure such default, then Owner may serve a written three (3) days'
notice of cancellation of this lease upon Tenant, and upon the
expiration of said three (3) days this lease and the term
thereunder shall end and expire as full and completely as if the
expiration of such three (3) day period were the day herein
definitely fixed for the end and expiration of this lease and
the term thereof and Tenant shall then quit and surrender the
demised premises to Owner but Tenant shall remain liable as
hereinafter provided.
(2) If the notice provide 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 such events
Owner may without notice, re-enter the demised premises either by
force or otherwise, and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other occupant
of demised premises and remove their effects and hold the premises
as if this lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal
proceedings to that end. If Tenant shall make default hereunder
prior to the date fixed as the commencement of any renewal or
extension of this lease. Owner may cancel and terminate such
renewal or extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default, re-entry, expiration and/or dispossess
by summary proceedings or 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-elect 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, 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 premised
as Owner. In Owner's sole judgement, considers advisable and
necessary for the purpose of re-letting the demised premises; and
the making of such alternations, 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, in 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 EXPENSE
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, 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 I connection with any default by
Tenant in the covenant to pay rent hereunder, makes any
expenditures or incurs any obligations for the payment of money,
including but not limited to attorney's fees, in instituting,
prosecuting or defending any 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 five (5) days of
rendition of any xxxx or statement to Tenant therefor. If Tenant's
lease term shall have expired at the time of making of such
expenditures or incurring of such obligations, such sums shall be
recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT:
20. Owner shall have the right at any time without the same
constituting an eviction and without incurring liability to Tenant
therefor to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators,
stairs, toilets, or other public parts of the building and to
change the name, number or designation by which the building may be
known. There shall be no allowance to Tenant for diminution of
rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner
or other 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 premises, the
rents, leases,
expenses of operation or any other matter or thing affecting or
related to the premises except as herein expressly set forth and no
rights, easements or licenses are acquired by Tenant by implication
or otherwise except as expressly set forth in the provisions of
this lease. Tenant has inspected the building and the demised
premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" and acknowledges that the taking of
possession of the demised premises by Tenant shall be conclusive
evidence that the said premises and the building of which the same
form a part were in good and satisfactory condition at the time
such possession was so taken, except as to latent defects. All
understandings and agreements hereto 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.
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, undertenant
or occupants or if the demised premises are located in a building
being constructed, because such building has not been sufficiently
completed to make the premises ready for occupancy or because of
the fact that a certificate 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) until after
Owner shall have given Tenant written notice that the premises are
substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or
to occupy premises other than the demised premises prior to the
date specified as the commencement of the term of this lease.
Tenant covenants and agrees that such occupancy shall be deemed to
be under all the terms, covenants, conditions and provisions of
this lease, except as to the covenant to pay rent. The provisions
of this article are intended to constitute "an express provision to
the contrary" within the meaning of Section 223- a of the New York
Real Property Law.
NO WAIVER
25. The failure of Owner to seek redress for violation of, or to insist
upon the strict performance of any covenant or condition of this
lease or of any of the Rules or Regulations, set forth or hereafter
adopted by Owner, shall not prevent a subsequent act which would
have originally constituted a violation from having all the force
and effect of an original violation. The receipt by Owner of rent
with knowledge of the breach of any covenant of this lease shall
not be deemed a waiver of such breach and no provision of this
lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No 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.
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 our occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Owner commences any summary
proceeding for possession of the premises, Tenant will not
interpose any counterclaim of whatever nature or description in any
such proceeding including a counterclaim under Article 4.
INABILITY TO PERFORM
27. This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part
of Tenant to be performed shall in no wise be affected, impaired or
excused because Owner is unable to fulfill any of its obligations
under this lease or to supply or is delayed in supplying any
service expressly or impliedly to be supplied or is unable to make,
or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any
equipment or fixtures 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 in connection
with a National Emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and
demand which have been or are affected 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, Owner shall provide; (a) necessary elevator facilities
on business days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m.
to 1 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. and on Saturdays from 8 a.m. to
1 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 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 building; (e) If the demised premises are serviced by
Owner's air conditioning/cooling and ventilating system, air
conditioning/cooling will be furnished to tenant from May 15th
through September 30th on business days (Mondays through Fridays,
holidays excepted) from 8 a.m. to 6 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; (f) Owner
reserves the right to stop services of the heating, elevators,
plumbing, air-conditioning, 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 judgement 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 upon ten days' written notice to Tenant,
proceed with alterations necessary therefor without in any wise
affecting this lease or the obligation of Tenant hereunder. The
same shall be done with a minimum of inconvenience to Tenant and
Owner shall pursue the alteration with due diligence.
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 the 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 obligation 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 (except such portion thereof as is
covered by specific hours in Article 29 hereof). Sundays and all
days observed by the State or Federal Government as legal holidays
and those designated as holidays by the applicable building service
union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
ADJACENT EXCAVATION--SHARING
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.
RULES AND REGULATIONS
33. Tenant and Tenant's servants, employees, agents, visitors, and
licenses shall observe faithfully, and comply strictly with, the
Rules and Regulations and such other and further reasonable Rules
and Regulations as Owner and 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 (10) days after
the giving of notice thereof. Nothing in this lease contained shall
be construed to impose upon Owner any duty or obligation to enforce
the Rules and Regulations or terms, covenants or conditions in any
other lease, as against any other tenant and Owner shall not be
liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees.
SECURITY
34. Tenant has deposited with Owner the sum of $4,687.50 as security
for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this lease; it is agreed that in the
event Tenant defaults in respect of any of the terms, provisions
and conditions of this lease, including, but not limited to, the
payment of rent and additional rent, Owner may use, apply or retain
the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any
other sum as to which Tenant is in default or for any sum which
Owner may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of
this lease, including but not limited to, any damages or deficiency
in the re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and
faithfully comply with all terms, provisions, convenants,
conditions of this lease, the security shall be returned to Tenant
after the date fixed as the end of the Lease and after delivery of
entire possession of the demised premises to Owner. In the event of
a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right
to transfer the security to the vendee or lessee and Owner shall
thereupon be released by Tenant from all liability for the return
of such security; and Tenant agrees to look to the new Owner solely
for the return of said security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made
of the security to a new Owner. Tenant further covenants that it
will not assign or encumber or attempt to assign or encumber the
monies deposited herein as security and that neither Owner nor its
successors or assigns shall be bound by any such assignments,
encumbrance, attempted assignment or attempted encumbrance.
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.
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.
Articles 37 through 42 inclusive are attached hereto and form a part hereof.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written. THIS AGREEMENT IS BEING
FORWARDED FOR YOUR APPROVAL AND EXECUTION ON THE UNDERSTANDING THAT IT SHALL NOT
BECOME EFFECTIVE UNTIL IT IS ACCEPTED BY THE LANDLORD AND ITS COUNSEL AND
EXECUTED BY THE LANDLORD.
FIFTY BROAD STREET, INC. AND
FIFTY NEW STREET, INC.
/s/ Alexander
----------------------------- -----------------------------
Secretary President
AXIOM COMMUNICATIONS GROUP, INC.
Witness for Tenant:
/s/ Ch. Baudenheuer
----------------------------- -----------------------------
Secretary President
ACKNOWLEDGEMENTS
CORPORATE OWNER
STATE OF NEW YORK,
County of
On this day of , 19 , before me
personally came
to me known, who being by me duly sworn, did depose and say that
he resides in
that he is the of
the corporation described in which executed the foregoing instrument, as OWNER;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and the he signed his name thereto by like
order.
-------------------------------------------
CORPORATE TENANT
STATE OF NEW YORK,
County of
On this 14th day of April, 1999, before me personally came
Xxxxxxxxx Xxxxxxxxxxx to me known, who being by me duly sworn, did depose and
say that he resides in NY that he is the President of Axiom Communications
the corporation described in which executed the foregoing instrument, as TENANT;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and the he signed his name thereto by like
order.
/S/Xxxxxx Xxxxxxx
-------------------------------------------
XXXXXX XXXXXXX
Notary Public, State of New York
No. 4838623
Qualified in New York County
Commission Expires Oct. 31, 1999
INDIVIDUAL TENANT
STATE OF NEW YORK
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, as
OWNER, executed the foregoing instrument and acknowledged to me that he executed
the same.
-------------------------------------------
INDIVIDUAL TENANT
STATE OF NEW YORK
County of
On this day of , 19 , before me
personally came
to me 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.
-------------------------------------------
