AGREEMENT OF LEASE
AGREEMENT OF LEASE, made as of this 17th day of October, 2005,
between 386 PAS PARTNERS, LLC, party of the first part, hereinafter referred to
as Owner, and SOBE LIFE, LLC, an Illinois limited liability company, party of
the second part, hereinafter referred to as Tenant,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby leases
from Owner
the portion of the 16th floor comprising 6,006 square feet, as shown in Exhibit
A attached hereto, in the building known as 000 Xxxx Xxxxxx Xxxxx in the Borough
of Manhattan, City of New York,
for the term of four (4) years and two (2) months beginning on the 1st day of
November, 2005 and ending on the 31st day of December, 2009, both dates
inclusive (or until such term shall sooner cease and expire hereinafter
provided),
at a rental rate as set forth in Article 38 hereof, 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 in the amount of $13,013.00 on the execution hereof. In the event
that, at the commencement of the term of this lease, or thereafter, Tenant shall
be in default in the payment of rent to Owner pursuant to the terms of another
lease with Owner or with Owner's predecessor in interest, Owner may at Owner's
option and without notice to Tenant add the amount of such arrears to any
monthly installment of rent payable hereunder and the same shall be payable to
Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
Rent:
1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy:
2. Tenant shall use and occupy the demised premises for general and
executive offices consistent with a first-class office building and for no other
purpose.
Tenant Alterations:
3. Tenant shall make no changes of any nature in or to the demised
premises 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 nonstructural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions installations or improvements, at its expense, obtain
all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner, and Tenant agrees to carry and will cause Tenant's
contractors and subcontractors to carry such xxxxxxx'x compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanics 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 ten days thereafter, at Tenant's expense,
by filing the bond required by law. All fixtures and all paneling, partitions
railings and like installations, installed in the demised 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 at the expiration or termination of
this lease, elects to relinquish Owner's right thereto and to have them removed
by Tenant, in which event the same shall be removed from the demised premises by
Tenant prior to the expiration of the lease, at Tenant's expense. Nothing in
this Article shall be construed to give Owner title to, or to prevent Tenant's
removal of, trade fixtures, moveable office furniture and equipment, but upon
removal of any such items from the demised premises or upon removal of other
installations as may be required by Owner, Tenant shall immediately and at his
expense, repair and restore the demised premises to the condition existing prior
to installation and repair any damage to the demised premises to the condition
existing prior to installation and repair any damage to the demised premises or
the building due to such removed. All property permitted or required to be
removed by Tenant at the end of the term remaining in the demised 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 demised
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 on arising and 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 written notice of any defective condition in the
demised premises for which Owner may be responsible hereunder. There shall be no
allowance to Tenant for diminution or rental value and no liability on the part
of Owner by reason of inconvenience, annoyance or injury to business arising
from Owner or other making repairs, alterations, additions or improvements in or
to any portions 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 of 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 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 of arising
out of Tenant's use or manner of use of the demised 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
the building 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 demised 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 of 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 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 several items and charges in the
fire insurance rates then applicable in 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 positions 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.
Subordinations:
7. This lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect this lease or the
real property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such ground or
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 mortgages, affecting this 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. Owner
represents that as of the date hereof there are no ground leases affecting the
real property of which the demised premises are a part.
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 of otherwise, not 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
attorney's fees, paid, suffered or incurred as a result of any breach of 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
subtenant and any agent, contractor, employee, invitee or licensee of any
subtenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by
fire or other casually, Tenant shall give immediate notice thereof to Owner and
this lease shall continue in full force and effect except as hereinafter act
forth. (b) If the demised premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by and
at the expense of Owner and the rent, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the demised 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 demised premises shall have been
substantially 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 renovate or rebuild it, then, in any of such events, Owner may
elect to terminate this lease by written notice to Tenant, given within 60 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 demised premises without prejudice however, to
Owner's rights and remedies against Tenant under the lease provision in effect
prior to such termination, and any rent owing shall be paid up to such date and
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 demised 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 demised premises
are substantially ready for Tenant's occupancy. (d) Nothing contained
hereinabove shall relieve Tenant from liability that may exist as a result of
damage from fire or other causalty. 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 fore 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 releasor's insurance policies contain a
clause providing that such a release or waiver shall not invalidate the
insurance. If, and to the extent, that such waiver can be obtained only by the
payment of additional premiums, then the party benefiting from the waiver shall
pay such premises within ten days after written demand or shall be deemed to
have agreed that the party obtaining insurance coverage shall be free of any
further obligation under the provisions hereof with respect to waiver of
subrogation. Tenant acknowledges that Owner will not carry insurance on Tenant's
furniture and/or furnishings or any fixtures or equipment, improvements, or
appurtenances removable by Tenant and agrees that Owner will not be obligated to
repair any damage thereto or replace the same. (f) Tenant hereby waives the
provisions of Section 227 of the Real Property Law and agrees that the
provisions of this Article shall govern and control in lieu thereof.
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired
or condemned by eminent domain for any public or quasi-public use or purpose,
then and in that event, the term of this lease shall cease and terminate from
the date of title vesting in such proceeding and Tenant shall have no claim for
the value of any unexpired term of this lease, and assigns to Owner Tenant's
entire interest in any such award.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, its heirs distributes, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this lease, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used 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 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 way 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, are to be added in the 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 way 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 upon reasonable notice (written or oral) to Tenant, to
examine the same and to make such repairs, replacements, improvements, additions
and alterations 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 or is required 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 the demised premises
without the same constituting an eviction, nor shall the Tenant be entitled to
any abatement of rent while such work is in progress not 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 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 therefore, not in any event shall the
obligations of Tenant hereunder he 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 properly line of the building, in 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 lime of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may the 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 demised premises and
accepts them as is, subject to the Rider annexed hereto with respect to Owner's
work, if any. In any event. Owner make no representation as to the condition of
the demised 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 canceled 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; (2) the making by Tenant of
an assignment of any other arrangement for the benefit of creditors under any
state statute; (3) the appointment of a receiver, trustee, custodian or similar
officer for Tenant or for all or a substantial portion of Tenant's assets.
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
demised premises but shall forthwith quit and surrender the demised 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
to this lease.
(h) 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 and additional rent reserved hereunder for the unexpired portion of the
term demised and the fair and reasonable rental value of the demised premises
(including the additional rent) for the same period (conclusively presuming the
additional rent for each year thereof to be the same as was payable for the year
immediately preceding the termination of this lease). 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 the demised 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 relating shall be deemed to be the fair and reasonable
rental value for the part or the whole of the demised premises so re-let during
the term of the re-letting. Nothing hereto 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 nor such amount be greater, equal to,
or less than the amount of the difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease other than the covenants for the payment of rent or additional rent; or if
the demised premises becomes vacant or deserted; or if any execution or
attachment shall be issued against Tenant or any or Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; it
this lease be rejected under Section 365 of Title 11 of the U.S. Code
(Bankruptcy Code); or if Tenant shall fail to move into or take possession of
the demised premises within fifteen (15) days after the commencement of the term
of this lease; or if Tenant shall be in default under any other lease for space
in the building, 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 said five (5) day period, or
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 fully and
completely as if the expiration of such three (3) day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof
and Tenant shall then quit and surrender the demised premises to 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,
than and to 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 demised
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 and additional rent shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may (but shall not be obligated to) re-let the
demised premises or any part or parts thereof, either in the name of Owner of
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 Tenant's covenants herein contained, any deficiency between
the rent and additional rent hereby reserved and/or covenanted to be paid and
the net amount, if any, of the rent and additional rent 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 demised premises or any part 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 alteration costs and for keeping the demised premises
in good order or for preparing the same for re-letting. Any such liquidated
damage 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 or 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 and additional 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 of 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, 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 expenditure or incurs
any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, presenting 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 much 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, upon
reasonable notice to Tenant, 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 employees, agents, social or business
visitors, subtenants or licensees as the Owner may deem necessary for the
security of the building and its occupants.
Owner reserves the right to change the address of the building and/or
to place signs above the entrances to the building at any time and from time to
time. Neither this lease nor any use by Tenant shall give Tenant any easement or
other right in or to the use of any door or any passage or any concourse or any
plaza connecting the building with any subway or any other building or to any
public conveniences, or to any particular entrance ways to public streets, and
the use of such doors, passages, concourses, plazas, entrance ways and
convenience may, without notice to Tenant, be regulated or discontinued at any
time by Landlord.
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 demised
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", except for any work which Owner has expressly
agreed to perform in the demised premises pursuant to this lease, 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 it is 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, vacant, 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, including furniture, equipment and trade
fixtures. Tenant's obligations to observe or performs 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 demised 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 been sufficiently completed to make the demised premises ready for
occupancy or because of the fact that a certificate or 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
way 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
demised 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 rent
and additional rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent and additional rent, not shall any
endorsement or statement of any check or any letter accompanying any check or
payment as rent or additional 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 additional rent or pursue any other remedy
provided in this lease or at law or in equity. 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 the demised premises, and no agreement
to accept such surrender shall be valid unless in writing signed by Owner. No
agent or employee of Owner or Owner's agent shall have any power to accept the
keys of the demised premises prior to the termination of this lease and the
delivery of keys to any such agent or employee shall not operate as a
termination of this lease or a surrender of the demised premises.
Waiver to 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 the demised
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 demised premises, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding.
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 the 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 applying, 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 provided in this lease, 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 or 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 demised
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 Owner:
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 form 8 a.m. to 6 p.m. and on
Saturdays form 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, the demised 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 person 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 is serviced by Owner's air
conditioning/cooling and ventilating system, air conditioning/cooling will be
furnished to Tenant form 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 in 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
expenses; (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 upon ten day's written notice to Tenant, proceed with alternations
necessary therfor 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 purpose or
for manufacturing. The term "Owner" means a landlord or lessor, and as used in
this lease means only the owner, or the mortgage 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 (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-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.
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 attached hereto and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rules or
Regulations hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
Regulation for decision to the New York office of the American Arbitration
Association whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice in writing upon Owner within ten (10) days after
the giving of notice thereof. Nothing contained in this lease 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 licenses.
Security:
34. Tenant has deposited with Owner the sum of $26,026.00 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 demised premises, whether such
damages or deficiency accrued before or after summary proceeding 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 this
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 said 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 covenant 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, encumbrances, 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.
Tenant's failure to promptly deliver such certificate shall be conclusive upon
Tenant: (a) that this lease is in full force and effect, without modification
except as may be represented by Owner; and (b) that there are no uncured
defaults in Owner's performance and Tenant has no right of offset, counterclaim,
defenses or deduction against basic rent or additional rent due hereunder or
against Owner. Tenant's failure to
comply with the requirements of this Article 35 shall constitute a material
default under this lease.
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.
SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF.
[Signature page to follow]
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
386 PAS PARTNERS, LLC
Witness for Owner.
By: 386 PASS, LLC,
its Sole Manager
By: 386 PAS MONDAY, LLC,
its Sole Manager
/s/ Xxxxx Xxxx By:/s/ Xxxxxxx Xxxxxxxxx
---------------------- ---------------------
Xxxxxxx
Sole Manager
SOBE LIFE, LLC
Witness for Tenant:
/s/ Xxxxx Xxxx By:/s/ Xxxxxxx Xxxxxxxx
--------------------- ----------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
No. 01WA6002716
Qualified XXXXX XXXX
Notary Public, State of New York
in Suffolk County
Commission Expires Feb. 17, 2006
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 or 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 those 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
violations of this rule shall be borne by the Tenant who, or those 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 of 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 buildings by reason or noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any animals 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 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 on the inside of the demised
premises if the same is visible from the outside of the demised premises without
the prior written consent of Owner, except that the name of Tenant may appear on
the entrance door of the demised 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 a size, color and style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Owner, and as Owner may direct. No Tenant shall lay linoleum,
or other similar floor covering, so that the same shall come in direct contact
with the floor of the demised premises, and if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. 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
matters 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 between the
hours of 6 p.m. and 8 a.m. and at all hours on Sundays, and legal holidays, 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.
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 or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
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 the 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 the case of after hours service required on weekends or on holidays.
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 therein and shall be done during such hours as Owner may
designate.
RIDER ATTACHED TO AND FORMING PART OF
LEASE DATED OCTOBER 17 2005 BETWEEN
386 PAS PARTNERS, LLC, AS OWNER AND
SOBE LIFE, LLC, AS TENANT
Premises: Portion of 16th Floor (Suite 1605), comprising 6,006
rentable square feet, at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx.
37. In the event that there are any discrepancies, duplications or
contraindications between the provisions contained in this Rider and the printed
lease form, it is understood and agreed that the provisions of this Rider shall
be controlling and supersede anything similar or to the contrary contained in
the printed lease form.
38. The Tenant shall pay annual basic rent as follows:
For the period from November 1, 2005 through October 31, 2006, One
Hundred Fifty Six Thousand One Hundred Fifty Six and 00/100 ($156,156.00)
Dollars per annum ($13,013.00 per month) plus electricity and additional rent as
set forth herein. Anything to the contrary notwithstanding, as a concession to
Tenant, provided that Tenant is not in default under any of the terms of this
lease, Tenant shall not be required to pay base rent during the first six (6)
months of the term of this lease. May 1, 2006 shall constitute the rent
commencement date.
For the period from November 1, 2006 through October 31, 2007, One
Hundred Sixty Thousand Fifty Nine and 90/100 ($160,059.90) Dollars per annum
($13,338.33 per month) plus electricity and additional rent as set forth herein.
For the period November 1, 2007 through October 31, 2008, One Hundred
Sixty Four Thousand Sixty One and 40/100 ($164,061.40) Dollars per annum
($13,671.75 per month) plus electricity and additional rent as set forth herein.
For the period November 1, 2008 through October 31, 2009, One Hundred
Sixty Eight Thousand One Hundred Sixty Two and 93/100 ($168,162.93) Dollars per
annum ($14,013.58 per month) plus electricity and additional rent as set forth
herein.
For the period November 1, 2009 through December 31, 2009, One Hundred
Seventy Two Thousand Three Hundred Sixty Seven and 1/100 ($172,367.01) Dollars
per annum ($14,363.92 per month) plus electricity and additional rent as set
forth herein.
Tenant shall pay such base rent, additional rent as provided in Article
39, and electricity charges are provided in Article 40 promptly when due,
without notice or demand therefor without any set-off, offset, credit,
abatement, or deduction of any kind whatsoever.
Rider page 1
Any apportionments or proportions of rental to be made under this lease
shall be computed on the basis of a 360-day year consisting of twelve (12)
months of thirty (30) days each.
39. Tenant agrees to pay as additional rent annually during the term of
this lease 3.003% of any increase in the Real Estate Taxes (as such term is
hereinafter defined) above those for the fiscal year 2005/2006. Such additional
rent shall be paid when the tax becomes fixed and within ten (10) days after
demand therefor by the Owner and shall be collectable as additional rent. For
the final year of the lease term, the Tenant shall be obligated to pay only as a
pro rata share of such taxes. Tax bills (except as hereinafter provided) shall
be conclusive evidence of the amount of such taxes and shall be used for the
calculations of the amounts to be paid by the Tenant.
The term "Real Estate Taxes" shall mean all the real estate taxes and
assessments, special or otherwise, levied, assessed or imposed by Federal, State
or Local Governments against or upon the building of which the demised premises
form a part and the land upon which it is erected. If due to a future change in
the method of taxation, any franchise, income, profit or other tax, or other
payment, shall be levied against Owner in whole or in part in substitution for
or in lieu of any tax which would otherwise constitute a Real Estate Tax, such
franchise, income, profit, or other tax or payment shall be deemed to be a Real
Estate Tax for the purposes hereof. If Owner should incur expenses in connection
with Owner's endeavor to reduce or prevent an increase in assessed valuation,
Tenant shall be obligated to pay as additional rent the amount computed by
multiplying the percent set forth in the first sentence of this Section times
such expenses of Owner, and such amount shall be due and payable upon demand by
Owner and collectable in the same manner as annual rent and Tenant shall be
entitled to a proportionate reduction, if any, in future tax bills. The
obligation to make any payments of additional rent pursuant to this Article
shall survive the expiration or other termination of this lease.
40. If the Owner furnishes electricity to the Tenant based on the
method of including the use thereof within the rent, then and in that event, the
Tenant agrees to have the rent reserved herein increased to compensate the Owner
for supplying the current as an additional service as hereinafter provided.
Tenant covenants and agrees that the rate used in determining the amount to be
added to the base rent will be at the same service classification under which
the Owner purchases electric current from the public utility corporation serving
the part of the city where the building is located; however, in no event will
the amount be added to the base rent be less than $3.25 per square foot. The
Owner will furnish electricity to the Tenant through presently installed
electrical facilities for Tenant's reasonable use of lighting, electrical
appliances and equipment as the Owner may permit to be installed in the demised
premises. The Tenant agrees that an electrical consultant, selected by the Owner
may make a survey of the electric lighting and powerload to determine the
average monthly electric current consumption in the demised premises. The
findings of the consultant as to the proper rent increase based on such average
monthly electric consumption shall be conclusive and binding upon the parties
and the Tenant shall pay the same as additional rent, monthly on the first day
of each and every month in advance of each month from the commencement of the
term. If the Owner's electric rates and/or charges be increased or decreased,
then the aforesaid additional rent shall be increased or decreased in the same
percentage. Tenant shall make no alterations or additions to the electric
equipment, and/or appliances without first obtaining written consent from the
Owner in each
RIDER PAGE 2
Instance. This provision is to prevent the Tenant from possible overloading of
the building's electrical distribution facilities. The Owner, its agents or
consultant, is given the right to make surveys from time to time in the demised
premises covering the electrical equipment and fixtures, and use of current.
Owner shall not in any way be liable or responsible to Tenant for any loss,
damage or expense which Tenant may sustain or incur if either the quantity or
character of electric service is changed or is no longer available for Tenant's
requirements. Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing feeders to the building or
the risers or wiring installation. Any riser or risers to supply Tenant's
electrical requirements upon written request of Tenant, will be installed by
Owner at the sole cost and expense of Tenant, if, in Owner's sole judgment, the
same are necessary and will not cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations, repairs or expense or
interfere with or disturb other tenants or occupants. In addition to the
installation of such risers Owner will also at the sole cost and expense of
Tenant, install all other equipment proper and necessary in connection therewith
subject to the aforesaid terms and conditions. The Owner reserves the right to
terminate the furnishing of electricity at any time upon thirty (30) days
written notice to the Tenant, in which event, the Tenant may make application
directly to the utility company servicing the building for the Tenant's entire
separate supply. The Owner upon the expiration of the aforesaid (30) days
written notice to the Tenant may discontinue furnishing the electric current, in
which latter event, the Tenant's liability for additional rent provided for this
Article shall terminate as of the date of discontinuance of the supplying of
electric current but this lease shall otherwise remain in full force with effect
and be otherwise unaffected.
41. In the event that any installment of rent or additional rent is not
received by Owner within ten (10) days of the due date, a late charge of four
cents ($0.04) for each dollar ($1.00) of the installment so overdue may be
charged by the Owner for the purpose of defraying the expense incident to
handling such delinquent installments. In addition to the foregoing late charge,
interest shall accrue or such overdue installment of rent or additional rent
from the due date thereof until the date of payment at a rate per annum equal to
the lesser of the prime rate as published in the Wall Street Journal plus four
percent (4%) and the maximum legal interest rate permitted under the
circumstances. Such late charge and any accrued interest shall be in addition to
any reasonable counsel fees and necessary disbursement incurred by Owner in
collecting said installments. In the event a check delivered to Owner for
installments of rent is discharged, a reasonable service charge may be made for
the handling of such check.
42. If Owner receives from Tenant any payment ("Partial Payment") less
than the sum of rent, additional rent or other charges then due and owing
pursuant to the terms and conditions of this lease. Owner, in its sole
discretion, may accept such Partial Payment and allocate the same in whole or in
part to any rent, additional rent and/or any other charges or to any combination
thereof, and the acceptance of such Partial Payment shall not be deemed a waiver
of the remaining amounts due and owing.
43. A Tenant shall obtain and keep in full force and effect during the
term of this lease.
(1) a policy of commercial general public liability insurance,
including bodily injury and property damage coverage, with a broad form
contractual liability endorsement or its equivalent, naming Tenant as insured
and protecting Owner, Owner's employees and managing agent, and any mortgagees
or lessors having an interest in the building, as additional insureds (issued on
an `occurrence' basis and not a `claim made' basis) against claims for personal
injury, death and/or third-party property damage occurring in or about the
demised premises or the building and under which the insurer agree to waive any
right of recovery such insurer may have had against Owner, Owner's employees and
managing agent, and any mortgagees or lessors having an interest in the building
and to indemnify, defend and hold Owner harmless from and against, among other
things, all cost, expense and/or liability (including, without limitation,
reasonable attorneys' fees) arising out of or based upon any and all claims,
accidents, injuries and damages occurring in, on or about the demised premises
(whether or not such claims, accidents, injuries and damages occurred as a
result of Owner's negligence) The minimum limits of liability applicable
exclusively to the demised premises shall be at least $2,000,000 combined single
limit bodily injury and property damage (or in any increased amount (or in the
form of an umbrella liability policy for "excess" liability coverage) required
by Owner in the exercise of Owner's commercially reasonable discretion); and
(2) insurance against loss or damage by fire and such other risks and
hazards (including burglary, theft, vandalism, sprinkler leakage, water damage,
explosion, breakage of glass within the demised premises and, if the demised
premises are located at or below grade, broad form flood insurance) as are
insurable under then available standard forms of "all risk" (or special form)
insurance policies, to Tenant's personal property and business equipment and
fixtures (hereinafter "Tenant's Property") and, whether or not such alterations
or tenant improvements had been paid for or performed by Tenant, any alterations
and tenant improvements in and to the demised premises (hereinafter, "Tenant's
work") for the full replacement cost value thereof (with such policy having a
deductible not in excess of an amount to be determined by Owner in the exercise
or owner's commercially reasonable discretion) protecting Tenant, Owner, Owner's
employees and managing agent, and any mortgages or lessors having an interest in
the building.
B. At least thirty (30) days prior to the expiration or other
termination of any such policies, and prior to occupancy of the demised
premises, Tenant agrees to deliver to Owner evidence of payment for the polices
and certificates evidencing such insurance. All such policies shall contain
endorsement that (a) such insurance may not be modified or cancelled or allowed
to lapse except upon thirty (30) days' written notice to Owner by certified
mail, return receipt requested, containing the policy number and the names of
the insured and the certificate holder, and (b) Tenant shall be solely
responsible for payment of all premiums under such policies and Owner shall have
no obligation for the payment thereof notwithstanding that Owner shall be named
as an additional insured. Tenant's failure to provide and keep in force the
aforementioned insurance shall be regarded as a material default hereunder,
entitling Owner to exercise any or all of the remedies as provided in this lease
in the event of Tenant's default. All insurance required to be carried by Tenant
pursuant to the terms of this lease shall be effected under valid and
enforceable policies issued by reputable and independent insurers permitted to
do business in the State of New York which rate, in Best's Insurance Guide, or
any successor thereto (or if there be none, an organization having a national
reputation), as having a general policy-holder rating of at least "A-XIII."
RIDER PAGE 4
C. The parties hereto shall procure an appropriate clause into or
endorsement on, any "all risk" (or special form) or fire or extended coverage
insurance covering the demised premises, the building, the, personal property,
fixtures or equipment located thereon or therein, pursuant to which the
insurance companies waive subrogation or consent to a waiver of right of
recovery by the insured prior to any loss. The waiver of subrogation or
permission for waiver of the right of recovery in favor of Tenant shall also
extend to all other persons or entities occupying or using the demised premises
in accordance with the terms of this lease. If the payment of an additional
premium is required for the inclusion of such waiver of subrogation provisions
or consent to a waiver of right of recovery, each party shall advise the other
of the amount of any such additional premiums by written notice and the other
party shall pay the same or shall be deemed to have agreed that the party
obtaining the insurance coverage in question shall be free of any further
obligations under the provisions hereof relating to such waiver or consent. It
is expressly understood and agreed that Owner will not be obligated to carry
insurance on Tenant's Property or Tenant's work or insurance against
interruption of Tenant's business.
D. Each party hereby waives all rights of recovery, claim, action,
cause of action and releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damage or destruction with respect to its property
(including rental value or business interruption) occurring during the term of
this lease to the extent to which such party is insured under a policy
containing a waiver of subrogation or naming the other party as an additional
assured, as provided in this Article. If notwithstanding the recovery of
insurance proceeds by either party for loss, damage or destruction of its
property (or rental value or business interruption) the other party is liable to
the first party with respect thereto or is obligated under this lease to make
replacement, repair or restoration, then provided the first party's right of
full recovery under its insurance policies is not thereby prejudiced or
otherwise adversely affected, the amount of the net proceeds of the first
party's insurance against such loss, damage or destruction shall be offset
against the second party's liability to the first party therefor, or shall be
made available to the second party to pay for the replacement, repair or
restoration, as the case may be. Tenant shall advise insurers of the foregoing
and such waiver shall be part of each policy maintained by Tenant which applies
to the demised premises, any part of the building or Tenant's use and occupancy
of any part thereof.
44. This lease shall not be binding upon the Owner and Tenant unless
and until it is executed by Owner and Tenant and delivered to each other or to
their respective attorneys.
45. Tenant represents that it has dealt with no broker in connection
with this lease other than Xxxxxx Xxxxxx & Co., Inc. and Owner shall pay the
brokerage commission due such broker pursuant to a separate agreement. Tenant
shall indemnify and hold Owner harmless from and against any cost, claim or
expense arising out of a breach of this representation. The aforesaid provisions
of this Article shall survive the expiration or sooner termination of this
lease.
46. Tenant hereby acknowledges and agrees that it is leasing the
demised premises in its "AS IS" condition with no work to be performed or paid
for by Owner, except that Owner shall at Owner's expense, (a) ensure that the
HVAC unit serving the demised premises is in good working order at the
commencement of the term of this lease and maintain such HVAC unit in good
working order throughout the term of this lease (it being agreed that Tenant
shall be
RIDER PAGE 5
responsible for the costs incurred by Owner in maintaining such HVAC unit to the
extent that the work is required as a result of the actions of Tenant or its
agents, employees or invitees), (b) install in the demised premises new building
standard carpeting which Tenant shall select from Owner's building standard
carpet selection; (c) paint the demised premises in a building standard manner
and in a color selected by Tenant from Owner's building standard color
selection; (d) replace ceiling tiles throughout the demised premises; (e)
replace the air conditioning diffuser throughout the demised premises; (f)
replace any and all broken windows in the demised premises; (g) deliver a glass
entrance door for the demised premises, which door shall be in working condition
and wired with a buzzer; (h) move Tenant's current corridor wall signage from
the 18th floor and install it in the 16th floor corridor outside of the demised
premises; (i) replace plastic covers over light fixtures in the demised
premises; (j) repair or replace malshaped convector covers in the demised
premises; (k) replace linoleum in the pantry of the demised premises and (l)
paint the existing formica cabinet covers in the demised premises.
47. Other than Owner's work as set forth in Article 46, the Tenant
shall, or its own expense, redecorate paint and renovate the demised premises as
may be necessary to keep them in good appearance. The Tenant further agrees to
keep the demised premises and all parts thereof in a clean and sanitary
condition and free from trash, inflammable material and other objectionable
matter.
48. In any action brought to enforce the obligations of Owner under
this lease, any judgment or decree shall be enforceable against Owner only to
the extent of Owner's interest in the building of which the demised premises
form a part and no such judgment shall be the basis of execution on, or be a
lien on, assets of Owner or any assets of any party being a partner, member or
stockholder in Owner, other than the interest in said building.
49. Supplementing Article 22 of the lease, Tenant expressly waives, for
itself and for any person claiming through or under Tenant, any rights which
Tenant or any such person may have under the provision of Section 2201 of the
New York Civil Practice Law and Rules and of any successor law of like import
then in force in connection with any holdover summary proceedings which Owner
may institute to enforce the foregoing provisions of this Article 49.
50. Should the Tenant hold over in possession after the expiration or
sooner termination of this lease, such holding over shall not be deemed to
extend the term or renew the lease, but such holding over thereafter shall
continue upon the covenants and conditions herein set forth except that the
charge for use and occupancy of the demised promises during such holding over
for each calendar month or part thereof (even if such part shall be a small
fraction of a calendar month) shall be the sum of
(a) 1/12 of the annual rent rate immediately prior to the expiration or
termination of this lease, times 3, plus
(b) 1/12 of the net increase, if any, in annual fixed rental due solely
to increases in the cost of the value of electric service furnished to the
demised premises in effect on the last day of the term of the lease, plus
RIDER PAGE 6
(c) 1/12 of all other items of annual additional rental which annual
additional rental would have been payable pursuant to this lease had this lease
not expired or terminated, plus
(d) those other items of additional rent (not annual additional rent)
which would have been payable monthly pursuant to this lease, had this lease not
expired or terminated, which total sum Tenant agrees to pay to Owner promptly
upon demand, in full without set off.
In addition to the forgoing, Tenant shall indemnify and hold Owner
harmless from and against any and all costs and expenses, including, without
limitation, reasonable attorney's fees, loss of income and all consequential
damages it may suffer or incur as a result of Tenant's holdover. The aforesaid
provisions of this Article shall survive the expiration or sooner termination of
this lease.
The provisions of this Article do not exclude Owner's right of re-entry
or any other right under this lease or at law or in equity, including, without
limitation, all rights given at law or in equity, in the case of holdovers, to
remove Tenant and anyone claiming through or under Tenant
51. Intentionally omitted.
52. Supplementing Article 3 (and except with respect to Owner's work
set forth in Article 46), all improvements, installations, alterations,
renovations, and changes to the demised premises desired by the Tenant shall be
furnished by Tenant at Tenant's sole cost and expense. All such improvements,
installations, alterations, renovations and changes at any time made shall be
subject to the following conditions:
(i) Plans and specifications shall be prepared by a licensed architect
and/or by a licensed engineer selected and paid by Tenant for any structural
alterations, and for any alterations, whether or not structural, in connection
with which plans are required to be filed by law with governmental authorities.
Such plans and specifications shall be submitted to Owner for approval in
advance of the commencement of work.
(ii) In performing Tenant's work in, on or upon the demised premises,
Tenant covenants and agrees to use only first-class materials and to do, or
cause to be done, all work in a workmanlike manner, employing contractors
approved by Owner, which approval shall nor be unreasonably withheld. All such
work shall be performed in compliance with the plans and specifications
therefor, if any, as approved by Owner.
(iii) Tenant covenants and agrees that all work performed in or upon
the demised premises shall be in strict compliance with applicable laws,
ordinances, regulations and orders of any Federal, State, County, municipal or
other governmental authorities having or acquiring jurisdiction thereof. Without
limiting the generality of the foregoing, Tenant covenants and agrees to procure
and pay for all necessary governmental licenses and permits in advance of the
performance of the work, and to procure al necessary governmental approvals and
certificates including approvals of the New York Board of Fire Underwriters (or
any successor organization thereto). Owner agrees to cooperate with Tenant, at
Tenant's sole cost and expense, in procuring
RIDER PAGE 7
the foregoing licenses, permits, and approvals and in filing the plans and
specifications referred to above.
(iv) All of the Tenant's work shall, upon completion, be inspected by a
representative of Owner's fire insurer. In the event that any such work results
in an increased premium, Tenant covenants and agrees to pay the amount of such
increase in premium for Owner's fire and extended coverage insurance policy and
any renewals thereof, as additional rent, on demand.
(v) Tenant assumes the entire responsibility and liability, including
statutory and common law liability, for any and all injuries or death of any or
all persons, including Tenant's contractors and subcontractors and their
respective employees, and for any and all changes to property caused by, or
resulting from or arising out of any act or omission on the part of Tenant,
Tenant's contractors or subcontractors or their respective employees, in the
prosecution of Tenant's work, and with respect to such work, agrees to indemnify
and save harmless Owner, from and against all losses and/or expenses including
reasonable legal fees and actual expenses, which it may suffer or pay as the
result of claims or lawsuits due to, because of, or arising out of any and all
such injuries or death and/or damage.
(vi) In the event that Tenant suffers or permits any mechanics or
similar lien to be filed against the demised premises, the building and/or the
land on which it is located, which remains for more than ten (10) days, for work
performed or claimed to have been performed for Tenant, or for materials
furnished or claimed to have been furnished to Tenant, in addition to all other
rights and remedies Owner may have at law and under this lease, Owner shall have
the right to discharge said lien by bonding, legal proceedings or otherwise, or
to settle or compromise the same, and to be reimbursed by Tenant for any actual
expenses incurred in connection therewith, and any interest thereon in
accordance with Article 41, as additional rent payable within 10 days of demand.
(vii) All alterations, fixtures and equipment, when installed in or on
the demised premises, shall be free and clear of purchase money mortgages,
chattel mortgages, conditional sales obligations and any and all other liens;
provided, however, that this provision shall not prohibit Tenant from leasing
equipment nor affixed to or installed as part of the demised premises
(viii) Liability insurance in the sum of $2,000,000 and $100,000
property damage and Worker's Compensation must be carried by any contractor
performing services in the demised premises and certificates of same must be
transmitted to Owner prior to the commencement of any alterations. Owner,
Owner's employees and managing agent, and any mortgagees or lessors having any
interest in the building shall be named as additional insureds under all such
liability insurances policies.
(ix) All alterations, renovations, installations and decorations to be
done by Tenant in the demised premises (including the alterations to be
performed in connection with Tenant's initial occupancy of the demised premises)
shall be done only by a general contractor acceptable to Owner and by
subcontractors acceptable to Owner, and a supervisor is required to be at the
demised premises at all times while such work is being performed.
RIDER PAGE 8
53. Tenant, at its sole cost and expense, shall procure and maintain
any and all license or licenses, permit or permits, required from any source
whatsoever for the operation and/or maintenance of the demised premises during
the term of this lease. In the event that Tenant shall fail to apply for and/or
maintain any and all of such licenses and/or permits. Owner may, but shall not
be obligated to, apply therefor, and if Owner receives such licenses and/or
permits, Tenant agrees to pay to Owner, as additional rent, a sum equal to the
license and/or permit fees paid by Owner for such licenses and/or permits.
54. It is hereby agreed and understood that any and all reasonable
attorney's fees and/or legal expenses incurred by the Owner in any successful
proceedings instituted by reason of the Tenant's default of any of the terms or
conditions of this lease shall be deemed to be additional rent and such
attorney's fees and/or legal expenses shall be recovered from the Tenant.
55. The statement in this lease of the nature of the business to be
conducted by Tenant shall not be deemed to constitute a representation or
guaranty by Owner that such use is lawful or permissible in the demised premises
under the certificate of occupancy for the building.
56. Supplementing the provisions of Article 11 and in modification
thereof:
A. Owner may withhold its consent to an assignment or sublet of the
demised premises in its sole and absolute discretion.
B. If Tenant shall desire to assign this lease or to sublet all or a
portion of the demised premises, Tenant shall submit to Owner a written request
for Owner's consent to such assignment or subletting, which request shall
contain or be accompanied by the following information: (1) the name and address
of the proposed assignee or subtenant; (ii) a description identifying the space
to be sublet and Tenant's improvements included therein; (iii) the terms and
conditions of the proposed assignment or subletting; (iv) the nature and
character of the business of the proposed assignee or subtenant and of its
proposed use of the demised premises; and (v) current financial information and
any other information Owner may reasonably request with respect to the proposed
assignee or subtenant. Owner may then, by notice to such effect given to Tenant
within thirty (30) days after receipt of Tenant's request for consent and of
such further information as Owner may reasonably request, elect to terminate
this lease, only if all or substantially all of the demised premises are to be
assigned or sublet. The termination of this lease shall be set forth in the
notice and shall take place on a date not earlier than one (1) day before the
effective date of the proposed assignment or subletting or later than thirty-one
(31) days after said effective date. Tenant shall then vacate or surrender the
demised premises on or before the termination date and the term of this lease
shall end on the termination date as if that were the expiration date.
C. Tenant shall not, without Owner's prior written consent, list or
otherwise publicly advertise the demised premises or any part thereof for
assignment or subletting at a rental rate less than the rate of fixed rent and
additional rent then payable hereunder for such space
D. If Owner consents in a subletting, it shall be expressly subject to
all of the obligations of Tenant under this lease and the further condition and
restriction that the sublease
RIDER PAGE 9
shall not be assigned, encumbered or otherwise transferred or the subleased
premises further sublet by the sublessee in whole or in part, or any part
thereof suffered or permitted by the sublessee to be used or occupied by others,
without the prior written consent of Owner in each instance. No subletting shall
end later than one day before the expiration date of this lease.
E. Any subletting approved hereunder is subject to the express
condition, and by accepting a sublease hereunder each subtenant shall be
conclusively deemed to have agreed, that if this lease should be terminated
prior to the expiration date or if Owner shall succeeded to Tenant's estate in
the demised premises, then at Owner's election the subtenant shall attorn and
recognize Owner as the subtenant's landlord under the sublease and the subtenant
shall promptly execute and deliver any instruction Owner may reasonably request
to evidence such attornment.
F. Tenant shall furnish Owner with a counterpart (which may be a
confirmed or reproduced copy) of each sublease or assignment made hereunder
within ten (10) days after the date of its execution. Tenant shall remain fully
liable for the performance of all of Tenant's obligations hereunder
notwithstanding any subletting provided for herein, and without limiting the
generality of the foregoing, shall remain fully responsible and liable to Owner
for all acts and omissions of any subtenant or anyone claiming under or through
any subtenant which shall be in violation of any of the obligations of this
lease and any such violation shall be deemed to be a violation by Tenant. Tenant
shall pay Owner on demand any expense which Owner may reasonably be required to
incur in acting upon any request for consent to assignment or subletting
pursuant to this Article.
G. Notwithstanding any assignment and assumption by the assignee of the
obligations of Tenant hereunder, Tenant herein named shall remain liable jointly
and severally (as a primary obligor) with its assignee and all subsequent
assignees for the performance of Tenant's obligations hereunder, and, without
limiting the generality of the foregoing, shall remain fully and directly
responsible and liable to Owner for all acts and omissions on the part of any
assignee subsequent to it in violation of any of the obligations of this lease.
H. Notwithstanding anything to the contrary hereinabove set forth, no
assignment of this lease shall be binding upon Owner unless the assignee shall
execute and deliver to Owner an agreement, in recordable form, whereby such
assignee agrees unconditionally to be personally bound by and to perform all of
the obligations of Tenant hereunder and further expressly agrees that
notwithstanding such assignment the provisions of this Article shall continue to
be binding upon such assignee with respect to all future assignments and
transfers. A failure or refusal of such assignee to execute or deliver such an
agreement in recordable form shall not release the assignee from its liability
for the obligations of Tenant hereunder assumed by acceptance of the assignment
of this lease.
1. For the purpose of this lease, any sale, transfer, or assignment of
a majority of the direct or indirect equity interests of Tenant (whether stock
or partnership or membership interests), or sale or other transfer of
substantially all of its assets, shall be deemed an assignment.
2. Notwithstanding anything to the contrary set forth, Tenant may not
assign or sublet all or any portion of the demised premises to any tenant or
subtenant in the
RIDER PAGE 10
building of which the demised premises form a part or to any third party who has
been shown space or inquired about space in the building of which the demised
premises form a part within the six (6) month period immediately preceding the
written request for consent as set forth in part B above.
K. If Owner shall consent to any assignment or subletting and Tenant
shall (i) in the case of an assignment of this lease, receive any consideration
from its assignee in connection therewith, Tenant shall pay over to Owner as
additional rent hereunder, fifty (50%) percent of such consideration or (ii) in
the case of a sublet of all or any portion of the demised premises for rents
which for any period shall exceed the rents payable for the subleased space
under this lease for the same period, or receive any consideration over and
above such rents then payable, Tenant shall pay Owner as additional rent
hereunder fifty (50%) percent of any "net profits" (as hereinafter defined) that
Tenant may derive from such subletting. "Net profit" shall consist of such
excess rent and/or such other consideration received by Tenant for such
subletting.
I. Without limiting any of the foregoing provisions of this Article, if
pursuant to the Bankruptcy Code, as the same may be amended, Tenant is permitted
to assign or otherwise transfer this lease (whether in whole or in part in
disregard of the restrictions contained in Article 11, Article 56 and/or Article
16), Tenant agrees that adequate assurance of future performance by the assignee
or transferee permitted under such Code shall mean the deposit of cash security
with Owner in an amount equal to the sum of one (1) year's fixed rent then
reserved hereunder plus an amount equal to all additional rent payable by Tenant
pursuant to this lease of the calendar year preceding the year in which such
assignment is intended to become effective, which deposit shall be held by
Owner, without interest, for the balance of the term as a security for the full
and faithful performance of all of the obligations under this lease on the part
of Tenant yet to be performed. If Tenant receives or is to receive any valuable
consideration for such an assignment or transfer (in part or in whole) of this
lease, such consideration after deducting therefrom any portion of such
consideration reasonably designated by the assignee or transferee as paid for
the purchase of Tenant's personal property in the demised premises, shall be and
become the sole exclusive property of Owner and shall be paid over to Owner
directly by such assignee or transferee. Any such assignee or transferee may
only use the demised premises as executive offices for an assignee or transferee
whose main business is be same as Tenant's and such occupancy may not increase
the number of individuals occupying the demised premises at the time a petition
for bankruptcy (or reorganization) is filed by or against Tenant. In addition,
adequate assurance shall mean that any such assignee or transferee of this lease
shall have a net worth (exclusive of good will) equal to at least fifteen (15)
times the aggregate of the annual fixed rent reserved hereunder plus all
additional rent for the proceeding calendar year as aforesaid. Such assignee or
transferee shall expressly assume this lease by an agreement in recordable form.
57. Anything elsewhere in this lease to the contrary notwithstanding if
the New York Board of Fire Underwriters or the New York Fire Insurance Exchange
or any bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant's business,
or the location of partitions, trade fixtures or other contents of the demised
premises, or for any other reason, or if any such sprinkler system
installations, modifications, alterations,
RIDER PAGE 11
additional sprinkler hands or other such equipment, become necessary to prevent
the imposition of a penalty or charge against the full allowance for a sprinkler
system in the fire insurance rate set by any said Exchange or by any fire
insurance company, Tenant shall, at Tenant's expense promptly make such
sprinkler system installments, changes, modifications, alterations, and supply
additional sprinkler heads or other equipment as required whether the work
involved shall be structural or non structural in nature. Tenant shall pay to
Owner as additional rent the sum of One Hundred Twenty Five and
13/100($125.13)DOLLARS on the first day of each month during the term of this
lease, as Tenant's portion of the contract price for the sprinkler supervisory
service.
58. Intentionally omitted.
59. Intentionally omitted.
60. Because of requirements of Local Law 5 regarding certain fire
safety regulations, it is necessary that Owner know at all times the appropriate
number of persons within the demised premises after normal business hours (i.e.
after 6:00 p.m. on weekdays and on weekends and holidays). Accordingly, within
thirty (30) days after the date hereof, Tenant shall submit to Owner its best
estimate of the number of Tenant's employees, agents, visitors and other persons
which Tenant expects to occupy the demised premises at any time after normal
business hours. Prior to 5:00 p.m. of each weekday or prior to 5:00 p.m. on the
day preceding a weekend or holiday, Tenant shall inform the building manager's
office whenever Tenant knows, or has reason to believe, that the number of its
employees, agents, visitors and other persons occupying the demised premises
after normal working or business hours that evening or the next day(s), as the
case may be, will exceed this estimate. Tenant also shall keep reasonable
records which indicate the number of persons entering and leaving the demised
premises after normal business hours, and shall provide copies of such records
to Owner at Owner's request
61. Tenant shall not cause or permit any Hazardous Materials (as
defined below) to be used, transported, stored, released, handled, produced or
installed in, on or from, the demised premises or the building, except for such
Hazardous Materials (such as cleaning and photocopying fluids) that are
customarily used in the operation of offices, provided that such Hazardous
Materials are used in compliance with all laws and or requirements of public
authorities. This term "Hazardous Materials" shall mean any flammable,
explosive, or radioactive, or hazardous wastes, hazardous and toxic substances,
or related materials, asbestos, or any material containing asbestos, or any
other such substance or material, as defined by any federal, state, or local
environmental law, ordinance rule or regulation, including, without limitation,
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing. In the event of a
breach by Tenant of the provisions of the Article 61, Owner shall in addition to
all of its rights and remedies under this lease and pursuant to law, require
Tenant to remove any such Hazardous Materials from the demised premises or the
building in the manner prescribed for such removal by all requirements of law.
The provisions of this Article 61 shall survive the expiration or sooner
termination of this law. The provisions of this Article 61 shall survive the
expiration or sooner termination of this lease.
RIDER PAGE 12
62. With reference to Article 34 and Tenant's security deposit, it is
understood and agreed that the security deposit shall not be held by Owner as a
trust fund and Tenant shall not be entitled to any interest on the security
deposit.
63. Tenant hereby waives trial by jury in any action, proceeding or
counterclaim brought by or against Tenant on any action, proceeding or
counterclaim brought by or against Tenant on any matter whatsoever arising out
of or in any way connected with this lease, the relationship of Owner and
Tenant, and Tenant's use or occupancy of the demised premises, including without
limitation, any claim or injury or damage, and any emergency and other statutory
remedy with respect thereto.
65. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Owner to recover possession of the demised
premises, unless the failure by Tenant to interpose such counterclaim in any
such action or proceeding would provide Tenant from asserting the subject matter
of such counterclaim in a separate action or proceeding with any other action
which may have been or will be brought in any other court by Tenant.
66. Intentionally omitted.
67. Tenant represents, warrants and covenants that neither Tenant nor
any or its partners, members or shareholders (i) is listed on the Specially
Designated Nationals and Blocked Persons List maintained by the Office of
Foreign Asset Control, Department of the Treasury ("OFAC") pursuant to Executive
Order No 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) ("Order") and all applicable
provisions of Title III of the USA PATRIOT ACT (Public Law Xx. 000-00 (Xxxxxxx
00, 0000)), (xx) is listed on the Denied Persons List and Entity List maintained
by the United States Department of Commerce; (iii) is listed on the List of
Terrorists and List of Disbarred Parties maintained by the United States
Department of State, (iv) is listed on any list of qualification, of "Designated
Nationals" as defined in the Cuban Assets Control Regulations 31 C.F.K. Part
515; (v) is listed on any other publicly available list of terrorists, terrorist
organizations or narcotics traffickers maintained by the United States
Department of State, the United States Department of Commerce or any other
governmental authority or pursuant to the Order, the rules and regulations of
OFAC (including without limitation the Trading with the Enemy Act, 50 U.S.C.
App. 1-44; the International Emergency Economic Powers Act, 50 U.S.C. xx.xx.
1701-06; the unrepealed provision of the Iraqi Sanctions Act, Public L. No.
101-513; the United Nations Participation Act, 22 U.S.C. ss.2349 aa-9; The Cuban
Democracy Act, 22 U.S.C. xx.xx. 60-01-10; The Cuban Liberty and Democratic
Solidarity Act, 18.U.S.C. xx.xx. 2332d and 233; and The Foreign Narcotic Kingpin
Designation Act., Publ. L. No. 106-201, all as may be amended from time to
time); or any other applicable requirements contained in any enabling
legislation or other Executive Orders in respect of the Order (the Order and
such other rules, regulations, legislation or orders are collectively called the
"Orders"); (vi) is engaged in activities prohibited in the Orders; or (vii) has
been convicted, pleaded nolo contendere, indicted, arraigned or custodially
detained on charges involving money laundering or predicate crimes to money
laundering, drug trafficking, terrorist-related activities or other money
laundering predicate crimes or in connection with the Bank Secrecy Act (31
U.S.C. ss.ss.5311 et. seq.).
RIDER PAGE 13
68. If Tenant is in arrears in the payment of rent or additional rent,
Tenant waives Tenant's right, if any, to designate the items against which any
payments made by Tenant are to be credited, and Owner may apply any payments
made by Tenant to any items Owner sees fit.
69. Supplementing Article 18 of this lease;
a. In case of any default, re-entry, expiration and /or dispossess by
summary proceedings or otherwise as provided in Article 17 of this lease, Tenant
(and all other occupants) shall vacate and surrender to Owner the demised
premises in accordance with this lease. b. Owner may recover from Tenant, and
Tenant shall pay Owner on demand, in lieu of any further deficiency pursuant to
subsection (c) of Article 18 hereof, as and for liquidated damages, an amount
equal to the difference between the rent and additional rent received hereunder
for the unexpired portion of the term demised and the fair and reasonable rental
value of the demised premises (including the additional rent) for the same
period (conclusively presuming the additional rent for each your thereof to be
the same as was payable for the year immediately preceding the default,
re-entry, expiration and/or dispossession). In the computation of such damages
the difference between any installment of rent and additional rent becoming due
hereunder and the fair and reasonable rental value of the demised premises for
the period for which such installment was payable shall be discounted at the
rate of four percent (4%) per annum. If the demised premises or any part thereof
be relet by Owner for the unexpired term of this lease, thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall be deemed to be
the fair and reasonable rental value for the part of the whole of the demised
premises so re-let during the term of the re-letting. Nothing herein contained
shall limit or prejudice the right of Owner to prove for and obtain as
liquidated damages on amount equal to the maximum allowed by any statute or rule
of law in effect of the time when, and governing the proceedings on 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. c. Nothing contained
in this lease shall be considered to limit or preclude the recovery by Owner
from Tenant of the maximum amount allowed to be obtained as damages or otherwise
at law or in equity.
70. A All legal actions relating to this lease shall be adjudicated in
the state courts of the State of New York, or the federal courts, in either case
having jurisdiction in the county in which the building is located. Tenant
irrevocably consents to the personal and subject matter jurisdiction of those
courts in any legal action relating to this lease. This consent to jurisdiction
is self operative and no further instrument or legal action, other than service
of process in any manner permitted by law or this Section, is necessary in order
to confer jurisdiction upon the person of Tenant and the subject matter in
question in any such court.
B. Tenant irrevocably waives and shall not assert, by way of motion as
a defense or otherwise (1) any objection to any such court being the venue of
any legal action relating to this lease, (ii) any claim that any legal action
relating to this lease brought in any such court has been brought in an
inconvenient forum or (iii) any claim that Tenant is not personality subject to
the jurisdiction of that court.
RIDER PAGE 14
C. Service in any legal action relating to this lease may be made upon
Tenant by delivery of the summons and complaint, or the petition and notice of
petition, by certified or registered mail, return receipt requested, sent to
Tenant at the demised premises or the last known business address of Tenant.
71. Notwithstanding anything in this lease to the contrary, Owner's and
Tenant's obligations under the lease are subject to the early termination, not
later than October 31, 2005, of the existing lease for the demised premises
pursuant to a lease surrender and termination agreement between Owner and the
current tenant of the demised premises in form and substance satisfactory to
Owner. If for any reason said existing lese is not terminated on or prior to
said date, this lease shall be automatically null and void and no further force
and effect.
[SIGNATURE PAGE TO FOLLOW]
RIDER PAGE 15
WITNESS FOR OWNER: 386 PAS PARTNERS, LLC
BY: 386 PASS, LLC.
ITS SOLE MANAGER
BY: 386 PAS MONDAY, LLC,
ITS SOLE MANAGER
/S/ XXXXX XXXX BY: /S/ XXXXXXX XXXXXXXXX
------------------------- -----------------------
XXXXX XXXX XXXXXXX XXXXXXXXX
WITNESS FOR TENANT: SOBE LIFE, LLC
/S/ XXXXX XXXX BY: /S/ XXXXXXX XXXXXXXX
------------------------- -----------------------
CHUAN Name: Xxxxxxx Xxxxxxxx
Notary Public, State of New York Title: President
No. 01WA6002716
Qualified in Suffolk County
Commission Expires Feb. 17, 2006
