LEASE
LEASE, dated as of February 1, 2003, between 000 X. 00XX XXXX., x Xxx
Xxxx corporation, having an office at 000-000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Landlord"), and G-III LEATHER FASHIONS INC., a New York
corporation, having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Tenant").
WITNESSETH:
ARTICLE ONE
1. DEMISE OF PREMISES, TERM AND RENT
1.1. The Landlord does hereby lease and demise to the Tenant, and the
Tenant does hereby hire and take from the Landlord, subject and subordinate to
the Qualified Encumbrances (as hereinafter defined) and upon and subject to the
provisions of this Lease, for the term hereinafter stated, the space
substantially as shown hatched on the diagram attached hereto as Exhibit A and
designated as Suite 500 on the 5th Floor of the building known as 000-000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Building"), situated upon a plot of
land (the "Land") in the Borough of Manhattan, New York, New York, together with
all fixtures, equipment, improvements, installations and appurtenances which at
the commencement of or during the term of this Lease are thereto attached
(except items not deemed to be included therein and removable by the Tenant as
provided in Article Four hereof) and three (3) parking spaces located on the
Land and adjacent to the Building (the "Parking Spaces"); which space, fixtures,
equipment, improvements, installations, appurtenances and Parking Spaces are
sometimes herein collectively called the "Premises".
1.2. The term of this Lease shall commence on February 1, 2003 and
shall end on January 31, 2006, or on such earlier date upon which the term may
expire or be terminated pursuant to any of the conditions of limitation or other
provisions of this Lease or pursuant to law.
1.3. The Premises, other than the Parking Spaces, may be used for the
following, but no other, purposes, namely: warehousing and general office use.
The Parking Spaces may be used only by the Tenant's employees, guests or
invitees for the purpose of parking their motor vehicles while such persons are
working at or visiting the Premises.
1.4. The rent reserved under this Lease for the term of this Lease
shall consist of fixed rent of (i) One Hundred Eighty Thousand Dollars
($180,000) for the Premises, other than the Parking Spaces, and (ii) Thirty-Six
Thousand Dollars ($36,000) for the Parking Spaces, for an aggregate fixed rent
of Two Hundred Sixteen Thousand Dollars ($216,000), payable in equal monthly
installments in advance on the first day of each and every calendar month of the
term of this Lease, plus (b) the additional rent payable as provided in this
Lease; all to be paid to
the Landlord, at its office as set forth above, or at such other place or places
as the Landlord shall designate to the Tenant, in lawful money of the United
States of America. If the termination date of the Lease term is other than the
last day of a calendar month, fixed rent for the calendar month in which the
Lease term shall terminate shall be appropriately adjusted on a prorated, per
diem basis.
1.5. The Tenant shall pay the fixed rent, additional rent and Billboard
Rent (as that term is hereinafter defined in Article Thirty hereof)
(collectively, "Rent") as and when the same shall become due and payable as
provided in this Lease, without demand therefor, and without any setoff or
deduction whatsoever, and keep, observe and perform, and permit no violation of,
each and every provision contained in this Lease on the part of the Tenant to be
kept, observed and performed.
1.6. In determining the rentable area and, where applicable, the
useable area of the Building or any portion thereof pursuant to any provision of
this Lease, the rentable area or useable area of the Building or the portion, as
the case may be, shall be the rentable area or useable area thereof in square
feet determined in accordance with the Standard Method of Floor Measurement for
Office Buildings approved by The Real Estate Board of New York, Inc., which
became effective on January 1, 1987, assuming a 20% loss factor from rentable to
useable. The parties agree that as of the date hereof the Premises contain 6,600
rentable square feet.
1.7. The term "Qualified Encumbrances" means (a) matters of record
affecting the Premises, Building or Land on the date of this Lease or hereafter,
(b) the underlying mortgages and underlying leases to which this Lease is
subordinate pursuant to Article Thirteen, (c) any declaration of restrictions or
other document in respect of the transfer of use or development rights, (d) any
declaration or other document which subjects all or any portion of the Land
and/or the Building to a condominium regime, (e) any preservation or similar
easement, declaration or agreement containing covenants, restrictions or
agreements in respect of the maintenance of the Building and/or the Land as a
landmark site with or held by a governmental agency or an entity designated or
accepted by a governmental agency, and (f) any special zoning district rules or
regulations.
ARTICLE TWO
2. OCCUPANCY
2.1. The Tenant has examined and shall accept the Premises in their
existing condition and state of repair and understands that no work is to be
performed by the Landlord in connection therewith.
2.2. The Tenant by taking possession of any part of the Premises shall
be conclusively deemed to have agreed that same was in satisfactory condition as
of the date of such possession.
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ARTICLE THREE
3. USE OF PREMISES
3.1. The Tenant shall not, except with the prior written consent of the
Landlord, use, or suffer or permit the use of, the Premises or any part thereof
for any purpose other than the uses permitted in Article One, provided, that the
portions, if any, of the Premises which are identified as toilets or utility
areas shall be used by the Tenant only for the purposes for which they are
designed and the portions, if any, of the Premises which are identified as
storage areas shall be used only for storage purposes.
3.2. The Tenant shall not use, or suffer or permit the use of, the
Premises or any part thereof in any manner or for any purpose or do, bring or
keep anything, or suffer or permit anything to be done, brought or kept, therein
(including, without limitation, the installation or operation of any electrical,
electronic or other equipment) which (i) would violate any provision of this
Lease or is unlawful or in contravention of the Certificate of Occupancy for the
Building, or (ii) in the reasonable judgment of the Landlord may in any way
impair or interfere with any of the Building services or the proper and economic
heating, air conditioning, cleaning or other servicing of the Building or the
Premises or impair or interfere with the use of any of the other areas of the
Building by, or occasion discomfort, inconvenience or annoyance to, any other
tenant of the Building or impair the appearance of the Building; nor shall the
Tenant use, or suffer or permit the use of, the Premises or any part thereof in
any manner, or do, or suffer or permit the doing of, anything therein or in
connection with the Tenant's business or advertising which, in the reasonable
judgment of the Landlord, may be prejudicial to the business of the Landlord or
the reputation of the Landlord or the Building or reflect unfavorably on the
Landlord or the Building or confuse or mislead the public as to any connection
or relationship between the Landlord and the Tenant.
3.3. If any governmental license or permit shall be required for the
proper and lawful conduct of any business or other activity carried on in the
Premises and, if the failure to secure such license or permit would, in any way,
affect the Landlord, the Tenant shall promptly procure and thereafter maintain
such license or permit, submit the same to inspection by the Landlord, and
comply with the terms and conditions thereof.
ARTICLE FOUR
4. FIXTURES
4.1. All fixtures, equipment, improvements and installations
("Fixtures") attached to, or built into, the Premises at the commencement of or
during the term of this Lease, whether or not installed at the expense of the
Tenant or by the Tenant, shall be and remain part of the Premises and be deemed
the property of the Landlord and shall not be removed by the Tenant except as
otherwise expressly provided in this Lease. All electric, plumbing, heating,
sprinkling, elevator, fixtures and outlets, partitions, railings, gates, doors,
vaults, stairs, paneling, molding, shelving, radiator enclosures, floors, and
ventilating, silencing, air conditioning and cooling equipment shall be deemed
to be included in Fixtures, whether or not attached to or built into the
Premises. Notwithstanding the foregoing, the Tenant shall (i) close up any slab
penetration in
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the Premises and (ii) remove from the Building all Fixtures furnished and
installed in any part of the Premises (whether or not attached thereto or built
therein) at the sole expense of the Tenant with respect to which no credit or
allowance shall have been granted to the Tenant, as well as any safes, vault
areas, lead-lined rooms, conveyors, pneumatic tubes, mechanical and electrical
rooms and telephone switchrooms and the equipment therein. All such closing and
removal shall be performed not later than the expiration or termination of the
Lease and shall be performed subject to the provisions of this Lease, including,
without limitation, subsection (e) of Article Six. The Tenant shall repair any
damage to the Premises arising from such closing and removal described in the
preceding sentence. The cost of repairing any damage to the Premises or the
Building arising from such closing and removal described in the preceding
sentences shall be paid by the Tenant upon demand. If any Fixture which as
aforesaid may or is required to be removed by the Tenant is not so removed
within the time above specified therefor, then the Landlord may at its election
deem that the same has been abandoned by the Tenant to the Landlord, but no such
election shall relieve the Tenant of its obligation to pay the cost and expense
of removing the same or the cost of repairing damage arising from such removal.
Notwithstanding the foregoing, the Landlord may, by notice to the Tenant,
prohibit the closing of any slab penetration not theretofore closed and the
removal of any or all items the Tenant is required to remove pursuant to this
Section 4.1 but has not theretofore removed.
4.2. All the perimeter walls of the Premises, any balconies, terraces
or roofs, if any, adjacent to the Premises (including any flagpoles or other
installations on said walls, balconies, terraces or roofs), and any space in
and/or adjacent to the Premises used for shafts, stairways, stacks, pipes,
conduits, ducts, electric or other utilities, sinks, fans or other Building
facilities, and the use thereof, as well as access thereto through the Premises
for the purposes of such use and the operation, improvement, replacement,
addition, repair, maintenance or decoration thereof, are expressly reserved to
the Landlord.
ARTICLE FIVE
5. ELECTRIC CURRENT AND WATER
5.1. The Landlord shall furnish, through the existing transmission
facilities installed by it in the Building, alternating electric current to the
electric closets and panels provided by the Landlord and serving the Premises in
such reasonable quantity as may be required for the Tenant's ordinary use of the
Premises for the purposes herein specified, but such quantity shall not exceed,
in the aggregate, an average of four xxxxx per useable square foot of space in
the Premises. Such alternating electric current shall be measured by an
electronic meter or meters and meter equipment provided by the Landlord at the
Tenant's cost and expense and installed by the Tenant at its cost at such
location or locations as the Tenant shall select with the reasonable approval of
the Landlord. The Tenant shall pay to the Landlord, as billed by the Landlord,
at the end of each billing period of the public utility company then supplying
such alternating electric current to the Building, an amount which shall be the
sum of (i) one hundred percent (100%) of the product obtained by multiplying the
Tenant's actual number of kilowatt hours and kilowatts of electric current
consumed by the Tenant in such billing period by the amount charged the Landlord
for use of the same by said public utility in such billing period plus (ii) any
taxes applicable to the amount determined pursuant to the foregoing clause (i).
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5.2. The Landlord may, at its option, upon not less than thirty (30)
days' prior written notice to the Tenant, discontinue the furnishing of electric
current to the Premises or any part thereof and, in such event, the Tenant shall
contract for the supplying of such electric current thereto with the public
service company supplying electric current to the neighborhood, and the Landlord
shall permit its risers, conduits and feeders serving the Premises, to the
extent available, suitable and safely capable, to be used for the purpose of
supplying such electric current.
5.3. The Tenant shall purchase and install all lamps, starters and
ballasts (including replacements thereof) used in the lighting fixtures in the
Premises.
5.4. Water will be furnished by the Landlord for normal use in lavatory
and toilet facilities, if any, in the Premises. Where any water is otherwise
furnished or any steam is furnished by the Landlord, the Tenant shall pay (i)
the cost of supplying, installing and maintaining a meter to measure the water
or steam so furnished, (ii) the reasonable charges of the Landlord for the water
or steam so furnished and, in the case of water, for any required pumping and/or
heating thereof, and (iii) any taxes, sewer rent or other charges which may be
imposed by any government or agency thereof based upon the quantity of water or
steam so furnished or the charge therefor.
5.5. The Landlord shall in no way be liable for any failure, inadequacy
or defect in the character or supply of electric current, water or steam
furnished to the Premises except for actual damage suffered by the Tenant by
reason of any such failure, inadequacy or defect caused solely by the gross
negligence or willful misconduct of the Landlord.
ARTICLE SIX
6. VARIOUS COVENANTS
6.1. The Tenant shall:
(a) take good care of the Premises, keep the Premises clean, and pay
the cost of making good any injury, damage or breakage (including, without
limitation, the cost of removing stains from floors and walls) done by the
Tenant, any other occupant of the Premises (other than the Landlord), any
affiliate thereof, or any of their respective employees, officers, directors,
partners, contractors, agents, licensees or invitees (each, a "Tenant Party"),
other than any damage with respect to which the Tenant is released from
liability pursuant to Section 9.3.;
(b) observe and comply with the rules and regulations annexed to, and
made a part of, this Lease and such other and further rules and regulations as
the Landlord hereafter at any time may make and communicate to the Tenant and
which, in the judgment of the Landlord, shall be necessary or desirable for the
reputation, safety, care or appearance of the Building, or the preservation of
good order therein, or the operation or maintenance of the Building, or the
equipment thereof, or the comfort of tenants or others in the Building;
provided, however, that in the case of any conflict between the provisions of
this Lease and any such rule or regulation, the provisions of this Lease shall
control;
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(c) permit the Landlord, any landlord under any of the underlying
leases, any mortgagee under any of the underlying mortgages and any other party
designated by the Landlord, and their respective representatives, to enter the
Premises at such hours as shall not unreasonably interfere with the Tenant's
business but without notice, for the purposes of inspection and permit them or
any of their agents or contractors to enter at any time without notice in case
of emergency and otherwise at any time with reasonable notice for the purpose of
complying with any and all laws, ordinances, rules, orders and regulations of
all governmental and quasi-governmental authorities and of all insurance bodies,
at any time duly issued and in force (collectively, "Requirements") applicable
to the Land, the Building or the Premises, or any part thereof, or exercising
any right reserved to the Landlord under Article Eight or elsewhere by this
Lease (it being understood that the parties specified in this subsection are
third-party beneficiaries of the covenants specified in this subsection in the
event of the Landlord's breach of any obligation it may have to any such party
to exercise a right of access on such party's behalf);
(d) make no claim against the Landlord or any landlord under any of the
underlying leases for any injury or damage to the Tenant or to any other person
or for any damage to, or loss (by theft or otherwise) of, or loss of use of, any
property of the Tenant or of any other person, irrespective of the cause of such
injury, damage or loss, unless caused solely by the gross negligence or willful
misconduct of the Landlord, its agents, servants or employees, in the operation
or maintenance of the Premises or the Building, it being understood that no
property other than such as might normally be brought upon or kept in the
Premises as an incident to the reasonable use of the Premises for the purposes
specified in this Lease will be brought upon or kept in the Premises;
(e) make no alteration, change, addition, improvement, repair or
replacement (an "Alteration") in, to, or about the Premises, and do no work in
such connection, without in each case the prior review and written consent of
the Landlord, and then only by workmen and contractors acceptable to the
Landlord, and upon terms and conditions and at times, consented to by the
Landlord and in accordance with the rules, regulations and guidelines of the
Landlord pertaining to the performance of such Alterations, and make no contract
for nor employ any labor in connection with the maintenance, cleaning or other
servicing of the Premises (a "Tenant Service") without like consent, which
consents, to the extent granting same shall not impose any additional burden on
the Landlord, but only in the case of nonstructural Alterations, shall not be
unreasonably withheld; in addition, the Tenant shall:
(i) notwithstanding anything in this Lease to the contrary,
make all changes (once reviewed and consented to by the Landlord), whether or
not structural and whether or not in the Premises, required by any Requirement
as a result of any Alteration or Tenant Service;
(ii) pay as and when the same become due and payable all
charges incurred by it in connection with any Alteration (it being understood
that any such consent may be conditioned upon the Landlord being furnished with
such security as it shall reasonably determine to be adequate to insure such
payment) including, but not limited to, the Landlord's reasonable charges for
making such reviews and inspections as it may deem
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necessary or desirable in connection with the consideration of the granting of,
and compliance with, any such consent;
(iii) if any notice or claim of any lien be given or filed by
or against the Building or the Land for any work, labor or services performed,
or for any materials, products or equipment used, furnished or manufactured for
use, therein or thereon or in connection with the performance of any Alteration
or Tenant Service, promptly, but in all events within thirty (30) days,
discharge or remove the same by payment, bonding or otherwise;
(iv) notwithstanding any such review and consent, not permit
the use of any contractors, workmen, labor, material or equipment in the
performance of any Alteration or Tenant Service if the use thereof, in the
Landlord's judgment, will disturb harmony with any trade engaged in performing
any other work, labor or service in or about the Building or contribute to any
labor dispute;
(v) permit no such work to be undertaken in connection with
any Alteration or Tenant Service unless insurance protecting the Tenant and each
of the Tenant's consultants, contractors and subcontractors, and the Indemnitees
(as hereinafter defined), against liability for worker's compensation and for
bodily injuries and death, as well as for property damage arising out of or in
connection with the performance and completion of such Alteration, shall be
procured and maintained in full force and effect throughout the prosecution
thereof, at the sole cost and expense of the Tenant and/or its consultants,
contractors and subcontractors; all such insurance to be commercially reasonable
as to form, amounts and insurers and reasonably acceptable to the Landlord, and
the Tenant will furnish to the Landlord certificates of such insurance prior to
the commencement of such work; and
(vi) deliver, within thirty (30) days after completion of the
Alteration, record drawings and specifications of the Premises reflecting the
Alteration in form and substance reasonably acceptable to the Landlord;
(f) not violate, or permit the violation of, any condition imposed by
the standard fire insurance policy issued for office buildings in the Borough of
Manhattan, New York, New York, and not do, suffer or permit anything to be done,
or keep, suffer or permit anything to be kept, in the Premises, which would
increase the fire or other casualty insurance rate on the Building or property
therein, or which would result in insurance companies of good standing refusing
to insure the Building or any such property in amounts and against risks as
reasonably determined by the Landlord;
(g) permit the Landlord to show the Premises at reasonable times during
Business Hours (as hereinafter defined) to any lessee, or any prospective
purchaser, lessee, mortgagee or assignee of any mortgage or underlying lease, of
the Building and/or the Land or of the Landlord's interest therein, and their
representatives, and during the 12 months preceding the expiration of this Lease
with respect to any part of the Premises, similarly show such part to any person
contemplating the leasing of all or a portion of the same;
(h) at the expiration or any earlier termination of this Lease with
respect to any part of the Premises, terminate its occupancy of, and quit and
surrender to the
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Landlord, such part of the Premises broom-clean and in as good condition as it
was at the commencement of such term, except for (1) ordinary wear and tear, and
(2) loss or damage by fire or other casualty which shall not have been
occasioned by the fault of any Tenant Party or with respect to which the Tenant
is released from liability pursuant to Section 9.3.;
(i) at any time and from time to time upon not less than ten (10) days'
prior notice by the Landlord, execute, acknowledge and deliver to the Landlord a
statement of the Tenant (or if the Tenant is a corporation or a partnership, an
appropriate officer or partner, as the case may be, of the Tenant) 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), and the dates to which the Rent has been paid in
advance, if any, stating whether or not to the best knowledge of the signer of
such certificate the Landlord is in default in the keeping, observance or
performance of any provision contained in this Lease and, if so, specifying each
such default, and such other information as Landlord may reasonably request, it
being intended that any such statement may be relied upon by any lessee or
mortgagee, or any prospective purchaser, lessee or mortgagee or any assignee of
any underlying mortgage (as defined in Article Thirteen hereof);
(j) indemnify, and save harmless, the Landlord, and its agents and
partners and its and their respective contractors, licensees, invitees,
servants, officers, directors, agents and employees, any mortgagee under any
underlying mortgage and any landlord under any of the underlying leases (the
"Indemnitees") from and against all liability (statutory or otherwise), claims,
suits, demands, damages, judgments, costs, interest and expenses (including
reasonable counsel fees and disbursements incurred in the defense thereof) to
which any Indemnitee may (except insofar as it arises solely out of the gross
negligence or willful misconduct of any such Indemnitee in the operation and
maintenance of the Building) be subject or suffer whether by reason of, or by
reason of any claim for, any injury to, or death of, any person or persons or
damage to property (including any loss of use thereof) or otherwise arising from
or in connection with the use of, or from any work or thing whatsoever done in,
any part of the Premises during the term of this Lease or during the period of
time, if any, prior to the commencement of such term that the Tenant may have
been given access to such part for the purpose of doing work or otherwise, or as
a result of any Tenant Party performing any such work or otherwise that subjects
any Indemnitee to any Requirement to which such Indemnitee would not otherwise
be subject, or arising from any condition of the Premises due to or resulting
from any default by the Tenant in the keeping, observance or performance of any
provision contained in this Lease or from any act or negligence of any Tenant
Party; and
(k) maintain, at all times during the term of this Lease and during any
other times the Tenant is granted access to the Premises, a policy or policies
of commercial general liability insurance (including, without limitation,
insurance of the Tenant's contractual liability under this Lease) written on an
occurrence basis with the premiums fully paid on or before the due date, issued
by a reputable insurance company licensed to do business in the State of New
York, having a minimum rating A- by A.M. Best & Company or such other financial
rating as the Landlord may at any time consider appropriate, and reasonably
acceptable to the Landlord. Such insurance shall afford minimum limits as the
Landlord may reasonably designate from time to time, but in no event less than
$2,000,000 per occurrence with a $4,000,000 aggregate in respect of injury or
death to any number of persons and not less than
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$1,000,000 for damage to or loss of use of property in any one occurrence. Each
such policy shall provide that it cannot be cancelled except upon 30 days' prior
notice to the Landlord and shall name the Indemnitees and such other designees
as the Landlord may from time to time designate as additional insureds
thereunder. The Tenant shall furnish original certificates of such insurance to
the Landlord prior to the term commencement date (or any date on which the
Tenant is granted earlier access) and thereafter not less than 30 days prior to
the expiration of each such policy and any renewals or replacements thereof.
ARTICLE SEVEN
7. ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
7.1. The Tenant covenants, for the Tenant and its successors, assigns
and legal representatives, that neither this Lease nor the term and estate
hereby granted, nor any part hereof or thereof, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred (it being agreed that (y) issuance
by the Tenant of stock and/or the transfer of already-issued stock/partnership
interest, in one or more transactions so as to transfer control or transfer 50%
or more of an interest in the Tenant, other than through over-the-counter or
national securities exchange transactions, or (z) sale or transfer of 25% or
more of the assets of the Tenant in one or more transactions, other than in the
ordinary course of business, shall, in either event, be deemed an assignment of
this Lease), and that neither the Premises, nor any part thereof, will be
encumbered in any manner by reason of any act or omission on the part of the
Tenant, or will be used or occupied, or permitted to be used or occupied, or
utilized for desk space, for mailing privileges or as a concession, by anyone
other than the Tenant, or will be sublet, or offered or advertised for
subletting; provided, however, that, if the Tenant is a corporation, the
assignment or transfer of this Lease, and the term and estate hereby granted, to
any corporation into which the Tenant is merged or with which the Tenant is
consolidated (such corporation being hereinafter in this Article called the
"Assignee") without the prior consent of the Landlord shall not be deemed to be
prohibited hereby if, and upon the express conditions that, (i) the primary
purpose for such merger or consolidation is other than the transfer of this
Lease, (ii) the surviving entity has a net worth at least equal to that of the
Tenant's on the date hereof or the date of merger or consolidation, whichever is
greater, and (iii) at least thirty (30) days prior to the merger or
consolidation, the Assignee shall have executed and delivered to the Landlord an
agreement in form and substance satisfactory to the Landlord whereby the
Assignee shall agree to be personally bound by and upon all the provisions set
forth in this Lease on the part of the Tenant to be kept, observed or performed,
and whereby the Assignee shall expressly agree that the provisions of this
Article shall, notwithstanding such assignment or transfer, continue to be
binding upon it with respect to all future assignments and transfers.
ARTICLE EIGHT
8. CHANGES OR ALTERATIONS BY LANDLORD
8.1. The Landlord reserves the right to make such changes, alterations,
additions, improvements, repairs or replacements in or to the Building
(including the Premises) and the fixtures and equipment thereof, as well as in
or to the street entrances, halls, passages, elevators, and stairways and other
parts of the Building, and to erect, maintain and use pipes,
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ducts and conduits in and through the Premises, all as it may reasonably deem
necessary or desirable; provided, that the exercise of such rights shall not
result in an unreasonable obstruction of the means of access to the Premises or
unreasonable interference with the use of the Premises. Nothing in this Section
or in Article Six shall be deemed to relieve the Tenant of any duty, obligation
or liability to make any repair, replacement or improvement or comply with any
Requirement.
ARTICLE NINE
9. DAMAGE BY FIRE, ETC.
9.1. If any part of the Premises shall be damaged by fire or other
perils, the Tenant shall give prompt notice thereof to the Landlord and the
Landlord shall proceed with reasonable diligence, subject to adjustment and
collection of any insurance proceeds and the provisions of any Qualified
Encumbrance, to repair such damage, and, if any part of the Premises shall be
rendered untenantable by reason of such damage (including untenantability due to
lack of access thereto), the annual fixed rent payable under this Lease, to the
extent that such fixed rent relates to such part of the Premises, shall be
abated for the period from the date of such damage to the date when such part of
the Premises shall have been made tenantable or to such earlier date upon which
either such part of the Premises would have been tenantable but for the act or
omission of a Tenant Party, unless (a) the Landlord shall make available to the
Tenant, during the period of such repair, other space in the Building reasonably
suitable for the temporary carrying on of the Tenant's business, or (b) such
fire or other damage shall have resulted from the negligence of any Tenant
Party. The Landlord shall not be liable for any inconvenience or annoyance to
the Tenant or injury to the business of the Tenant resulting in any way from
such damage or the repair thereof. The Tenant understands that the Landlord will
not carry insurance of any kind on (w) the Tenant's goods, furniture or
furnishings, (x) on any Fixtures removable by the Tenant as provided in this
Lease, (y) on Tenant improvements or betterments or (z) on any property in the
care, custody and control of the Tenant, and that the Landlord shall not be
obligated to repair any damage thereto or replace the same.
9.2. If substantial alteration or reconstruction of the Building shall,
in the opinion of the Landlord, be required as a result of damage by fire or
other perils (whether or not the Premises shall have been damaged by such fire
or other casualty), then this Lease and the term and estate hereby granted may
be terminated by the Landlord by a notice, given within sixty (60) days of such
damage specifying a date, not less than thirty (30) days after the giving of
such notice, for such termination. In addition, if a substantial part of the
Premises is rendered untenantable as a result of such damage by fire or other
peril and it is determined by the Landlord that such part of the Premises cannot
be made tenantable within a period of nine (9) months after the occurrence of
such fire or other peril, then this Lease and the term and estate hereby granted
may be terminated by the Landlord or the Tenant by a notice specifying a date,
not less than thirty (30) days after the giving of such notice for such
termination, which notice must be given within sixty (60) days of such damage.
In the event of the giving of notice of termination, this Lease and the term and
estate hereby granted shall expire as of the date specified in such notice with
the same effect as if such date were the date initially specified in this Lease
as the expiration date, and the fixed rent payable under this Lease shall be
apportioned as of such date of termination, subject to abatement, if any, as and
to the extent above provided.
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9.3. Nothing in this Lease shall relieve the Tenant from any liability
to the Landlord or to its insurers in connection with any damage to the Premises
or the Building by fire or other peril if the Tenant shall be legally liable in
such respect, except that the Landlord and the Tenant hereby release each other
with respect to any liability which the released party might otherwise have to
the releasing party for any damage to the Building or the Premises or the
contents thereof by fire or other peril occurring during the term of this Lease
to the extent of the proceeds received under a policy or policies of insurance
permitting such release. Each party will use best efforts to cause its property
and/or other applicable insurance policy to include a provision permitting such
a release of liability; provided, that if such a provision is obtainable from
such insurer only at an additional expense, the insured party shall notify the
other party and, unless the other party pays such additional expense within ten
(10) days thereafter, the insured party shall thereafter be free of its waiver
of subrogation so long as an additional cost is required under the policy in
question.
9.4. This Lease shall be considered an express agreement governing any
case of damage to or destruction of, or any part of, the Building or the
Premises by fire or other peril, and Section 227 of the Real Property Law of the
State of New York providing for such a contingency in the absence of express
agreement, and any other law of like import now or hereafter in force, shall
have no application in such case.
ARTICLE TEN
10. CONDEMNATION
10.1. If all of the Premises shall be lawfully condemned or taken in
any manner for any public or quasi-public use, this Lease and the term and
estate hereby granted shall forthwith cease and terminate as of the date of
vesting of title in such condemnation or taking. If only a part of the Premises
shall be so condemned or taken, then the term and estate hereby granted with
respect to such part of the Premises shall forthwith cease and terminate as of
the date of vesting of title in such condemnation or taking and the annual fixed
rent payable under this Lease, to the extent that such fixed rent relates to
such part of the Premises, shall be abated for the period from the date of such
vesting of title to the date specified in this Lease for the expiration of the
full term of this Lease with respect to such part of the Premises. If only a
part of the Building shall be so condemned or taken, then (a) if substantial
alteration or reconstruction of the Building or the Premises shall, in the
opinion of the Landlord, be necessary or desirable as a result of such
condemnation or taking, this Lease and the term and estate hereby granted may be
terminated by the Landlord within sixty (60) days following the date on which
the Landlord shall have received notice of such vesting of title, by a notice to
the Tenant specifying a date, not less than thirty (30) days after the
Landlord's notice, for such termination, or (b) if such condemnation or taking
shall be of a substantial part of the Premises or of a substantial part of the
means of access thereto, this Lease and the term and estate hereby granted may
be terminated by the Tenant, within sixty (60) days following the date upon
which the Tenant shall have received notice of such vesting of title, by a
notice to the Landlord specifying a date, not less than thirty (30) days after
the Tenant's notice, for such termination, or (c) if neither the Landlord nor
the Tenant elects to terminate this Lease, this Lease shall not be affected by
such condemnation or taking, except that this Lease and the term and estate
hereby granted with respect to the part of the Premises so condemned or taken
shall expire on the date of the vesting
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of title to such part and except that the fixed rent payable under this Lease
shall be abated to the extent, if any, hereinabove provided in this Article. If
only a part of the Premises shall be so condemned or taken and this Lease and
the term and estate hereby granted with respect to the remaining portion of the
Premises are not terminated, the Landlord will proceed with reasonable
diligence, subject to the provisions of any Qualified Encumbrance and without
requiring the Landlord to expend more than it collects as an award therefor, to
restore the remaining portion of the Premises as nearly as practicable to the
same condition as it was in prior to such condemnation or taking.
10.2. The termination of this Lease and the term and estate hereby
granted in any of the cases specified in this Article shall be with the same
effect as if the date of such termination were the date originally specified for
the expiration of the full term of this Lease, and the fixed rent payable under
this Lease shall be apportioned as of such date of termination.
10.3. If there is any condemnation or taking of all or a part of the
Building, the Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in the Tenant, and the Tenant hereby expressly assigns to
the Landlord any and all right, title and interest of the Tenant now or
hereafter arising in or to any such award or any part thereof, and the Tenant
shall be entitled to receive no part of such award; provided, that the Tenant
shall not be precluded from intervening for the Tenant's own interest in any
such condemnation proceeding to claim or receive from the condemning authority
any compensation to which the Tenant may otherwise lawfully be entitled in such
case in respect of property removable by the Tenant under Article Four or for
moving expenses, but only to the extent such compensation does not reduce the
award otherwise payable to the Landlord.
10.4. If the whole or any part of the Premises, or of the Tenant's
leasehold estate, shall be taken in condemnation proceedings or by any right of
eminent domain for temporary use or occupancy, the foregoing provisions of this
Article Ten shall not apply and the Tenant shall continue to pay, in the manner
and at the times herein specified, the full amount of the rent and other charges
payable by the Tenant under this Lease, and, except only to the extent that the
Tenant may be prevented from so doing pursuant to the terms of the order of the
condemning authority, the Tenant shall perform and observe all of the other
provisions of this Lease upon the part of the Tenant to be performed and
observed, as though such taking had not occurred. In the event of any taking
referred to in this Section 10.4., the Landlord shall be entitled to receive any
portion of the condemnation proceeds paid as compensation for the cost of
restoration of the Building and the Tenant shall be entitled to receive the
balance of the condemnation proceeds paid for such taking, whether paid by way
of damages, rent or otherwise, unless such period of temporary use or occupancy
shall extend beyond the expiration or termination of this Lease, in which case
the balance of the condemnation proceeds shall be apportioned between the
Landlord and the Tenant as of the date of the expiration or termination of this
Lease. The Landlord shall, upon the expiration of any such period of temporary
use or occupancy, restore the Building, as nearly as may be reasonably possible
within the balance of the term of the Lease, to the condition in which the same
was immediately prior to such taking, subject to the provisions of any Qualified
Encumbrance and without requiring the Landlord to expend more than it collects
as an award therefor.
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ARTICLE ELEVEN
11. COMPLIANCE WITH LAWS
11.1. The Tenant shall comply with all Requirements applicable to the
Premises or any part thereof, to the Tenant's use thereof or to the Tenant's
observance of any provision of this Lease, except that the Tenant shall not be
under any obligation to comply with any Requirement requiring any structural
alteration of or in connection with the Premises solely by reason of the use
thereof for any of the purposes permitted in Article One and not by reason of
(i) a condition which has been created by, or at the instance of, any Tenant
Party, (ii) a breach by any Tenant Party of any provision of this Lease or (iii)
a Requirement having as a primary purpose the benefit of disabled persons. Where
any structural alteration of or in connection with the Premises is required by
any such Requirement, and, by reason of the express exception specified above,
the Tenant is not under any obligation to make such alteration, then the
Landlord shall have the option of making such alteration or of terminating this
Lease and the term and estate hereby granted by giving to the Tenant not less
than thirty (30) days' prior notice of such termination; provided, that, if
within fifteen (15) days after the giving of notice of termination, the Tenant
shall request the Landlord to make such alteration at the expense of the Tenant,
then such notice of termination shall be ineffective; the Landlord shall proceed
with reasonable diligence to make such alteration and the Tenant shall pay to
the Landlord all costs and expenses incurred by the Landlord in connection
therewith and shall maintain on deposit with the Landlord such security for the
payment of such costs and expenses as the Landlord shall from time to time
request. For purposes of this Article, providing and installing of sprinklers
shall be deemed to be a non-structural alteration.
11.2. If a notice of termination shall be given by the Landlord under
this Article and such notice shall not become ineffective as above provided,
this Lease and the term and estate hereby granted shall terminate on the date
specified in such notice with the same effect as if such date were the date
originally specified for the expiration of this Lease, and the fixed rent
payable under this Lease shall be apportioned as of such date of termination.
ARTICLE TWELVE
12. ACCIDENTS TO SANITARY AND OTHER SYSTEMS
12.1. The Tenant shall give to the Landlord prompt notice of any damage
to, or defective condition in, any part or appurtenance of the Building's
sanitary, electrical, heating, air conditioning, ventilating or other systems
serving, located in, or passing through, the Premises. Any such damage or
defective condition shall be remedied by the Landlord with reasonable diligence
except to the extent Tenant is specifically required to remedy same under the
terms of this Lease, but if such damage or defective condition (other than any
damage with respect to which the Tenant is relieved from liability pursuant to
Section 9.3.) was caused by, or by the use by, any Tenant Party or is with
respect to any Fixture, installed by or at the request of Tenant or in
connection with the initial build-out of the Premises, the cost of the remedy
thereof shall be paid by the Tenant upon demand. The Tenant shall not be
entitled to claim any damages against the Landlord arising from any such damage
or defective condition unless the same shall have been caused solely by the
gross negligence or willful misconduct of the Landlord in the
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operation or maintenance of the Premises or the Building and the same shall not
have been remedied by the Landlord with reasonable diligence after notice from
the Tenant; nor shall the Tenant be entitled to claim any damages against any
other party (including, without limitation, any third party vendor or other
supplier of services to the Landlord) arising from any such damage or defective
condition unless the same shall have been caused solely by the gross negligence
or willful misconduct of such party in the operation or maintenance of the
Premises or the Building and the same shall not have been remedied by such party
with reasonable diligence after notice thereof; nor shall the Tenant be entitled
to claim any eviction by reason of any such damage or defective condition unless
the same shall have been caused solely by the gross negligence or willful
misconduct of the Landlord in the operation or maintenance of the Premises or
the Building and shall not have been made tenantable by the Landlord within a
reasonable time after notice from the Tenant.
ARTICLE THIRTEEN
13. SUBORDINATION
13.1. This Lease and the term and estate hereby granted are and shall
be subject and subordinate to the lien of each mortgage which may now or at any
time hereafter affect the Premises, the Building and/or the Land, or the
Landlord's interest therein (collectively, the "underlying mortgages"). This
Lease shall also be subject and subordinate to any future ground or net lease of
the Land and/or the Building. All of said leases as so modified, supplemented,
extended and renewed are herein collectively called the "underlying leases". The
foregoing provisions for the subordination of this Lease and the term and the
estate hereby granted shall be self-operative and no further instrument shall be
required to effect any such subordination; but the Tenant shall, from time to
time, upon request by the Landlord, execute and deliver any and all instruments
that may be necessary or proper to effect such subordination or to confirm or
evidence the same, and in the event that the Tenant shall fail to execute and
deliver any such instrument, the Landlord, in addition to any other remedies,
may, as the agent or attorney-in-fact of the Tenant, execute and deliver the
same, and the Tenant hereby irrevocably constitutes and appoints the Landlord
the Tenant's agent and attorney-in-fact, coupled with an interest, for such
purpose. If the Landlord's interest in the Building or the Land shall be sold or
conveyed to any person, firm or corporation upon the exercise of any remedy
provided for in any underlying mortgage or by law or equity, or if the
Landlord's interest in this Lease is assigned or conveyed to the landlord under
any ground lease as a result of a default by the tenant under the ground lease
and a resulting termination thereof, such person, firm or corporation succeeding
to the Landlord's interest in the Building or Land or this Lease and each
person, firm or corporation thereafter succeeding to its interest in the
Building or the Land or this Lease (i) shall not be liable for any act or
omission of the Landlord under this Lease occurring prior to such sale or
conveyance, (ii) shall not be subject to any offset, defense or counterclaim
accruing prior to such sale or conveyance, (iii) shall not be bound by any
payment prior to such sale or conveyance of Rent for more than one month in
advance (except prepayments in the nature of security for the performance by the
Tenant of its obligations hereunder), (iv) shall not be bound by any amendment
or modification of this Lease made (y) after notice to the Tenant of the
execution of the underlying mortgage or underlying lease in question and (z)
without the consent of such mortgagee or lessor (or their nominees, successors
or assigns), where required, (v) shall not be bound by any covenant to perform
(including, without limitation, any covenant to complete) any
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renovation or construction in connection with the Premises or the Building or to
pay any sums to the Tenant in connection therewith, in either case arising or
accruing prior to the date of such sale or conveyance of the Landlord's
interest; and (vi) shall be liable for the performance of the other obligations
of the Landlord under this Lease only during the period such successor landlord
shall hold such interest.
13.2. If this Lease and the term and estate hereby granted are subject
and subordinate to any underlying lease, then the Tenant hereby agrees (a) that
it will attorn to the lessor under said underlying lease effective as of the
expiration or earlier termination of the term of said underlying lease and will
recognize said lessor as the Landlord under this Lease, and (b) that,
notwithstanding such expiration or earlier termination of the term of said
underlying lease, this Lease shall continue for the balance of the term of this
Lease in accordance with its provisions.
ARTICLE FOURTEEN
14. NOTICES
14.1. Any notice, consent, approval, request, communication, xxxx,
demand or statement (collectively, "Notices") under this Lease by either party
to the other party shall be in writing and shall be deemed to have been duly
given when delivered personally or by overnight mail service to such other party
and a receipt has been obtained or on the third day after being mailed in a
postpaid envelope (registered or certified, return receipt requested) addressed
to such other party, which address for the Landlord shall be as above set forth
and for the Tenant shall be the Tenant's address at the Premises, or if the
address of such other party for notices shall have been duly changed as
hereinafter provided, if so mailed to such other party at such changed address.
Either party may at any time change the address for Notices by a Notice stating
the change and setting forth the changed address. If the term "Tenant" as used
in this Lease refers to more than one person, any Notice to any one of such
persons shall be deemed to have been duly given to the Tenant. If and to the
extent requested by the Landlord, the Tenant shall give copies of all Notices to
the Landlord to holders of underlying mortgages and underlying leases of which
the Tenant has notice.
ARTICLE FIFTEEN
15. CONDITIONS OF LIMITATION
15.1. This Lease and the term and estate hereby granted are subject to
the limitation that:
(a) if the Tenant shall default in the payment of any Rent and any such
default shall continue for five (5) days after notice,
(b) if the Tenant shall default in observing any provision of Article
Three or of subsection (e) or (f) of Section 6.1. and such default shall
continue and shall not be remedied by the Tenant within seventy-two (72) hours
after notice,
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(c) if the Tenant shall default in observing any provision of this
Lease (other than a default of the character referred to in subsection (a) or
(b) of this Section), and if such default shall continue and shall not be
remedied by the Tenant within fifteen (15) days after notice or, if such default
cannot for causes beyond the Tenant's control, with due diligence be cured
within said period of fifteen (15) days, if the Tenant (i) shall not, promptly
upon the giving of such notice, give the Landlord notice of the Tenant's
intention to duly institute all steps necessary to remedy such default, (ii)
shall not duly institute and thereafter diligently prosecute to completion all
steps necessary to remedy the same, or (iii) shall not remedy the same within a
reasonable time after the date of the giving of said notice by the Landlord,
which period shall in no event exceed ninety (90) days,
(d) if any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted or the unexpired balance of the full
term of this Lease would, by operation of law or otherwise, devolve upon or pass
to any person, firm or corporation other than the Tenant (except as permitted
under Article Seven), or if the Tenant shall desert or abandon the Premises or
the same shall become vacant (whether or not the keys be surrendered or the rent
is paid), or
(e) when and to the extent permitted by law, if a petition in
bankruptcy shall be filed by or against the Tenant, or if the Tenant shall make
a general assignment for the benefit of its creditors, or the Tenant shall
receive the benefit of any insolvency or reorganization act, or if a receiver or
trustee is appointed for any portion of the Tenant's property and such
appointment is not vacated within sixty (60) days, or if an execution or
attachment shall be issued under which the Premises shall be taken or occupied
by anyone other than the Tenant,
then in any of said cases the Landlord may give to the Tenant a notice of
intention to end the term of this Lease, and, if such notice is given, this
Lease and the term and estate hereby granted (whether or not the term shall
theretofore have commenced) shall terminate upon the expiration of five (5) days
from the date the notice is deemed given with the same effect as if the last of
said five (5) days were the date originally specified as the expiration of the
full term of this Lease, but the Tenant shall remain liable for damages as
provided in this Lease or pursuant to law. If this Lease shall have been
assigned, the term "Tenant", as used in subsections (a) to (e), inclusive, of
this Section 15.1., shall be deemed to include the assignee and the assignor or
either of them under any such assignment unless the Landlord shall, in
connection with such assignment, release the assignor from any further liability
under this Lease, in which event the term "Tenant", as used in said subsections,
shall not include the assignor so released.
ARTICLE SIXTEEN
16. RE-ENTRY BY LANDLORD
16.1. If this Lease shall terminate under Article Fifteen, or if the
Tenant shall default in the payment of any Rent on any date upon which the same
becomes due, and if such default shall continue for five (5) days after the
Landlord shall have given to the Tenant a notice specifying such default, the
Landlord or the Landlord's agents and servants may immediately or at any time
thereafter re-enter the Premises, or any part thereof in the name of the whole,
either
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by summary dispossess proceedings or by any suitable action or proceeding at law
or by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and may repossess the same, and may remove any persons
therefrom, to the end that the Landlord may have, hold and enjoy the Premises
again as and of its first estate and interest therein. The words "re-enter",
"re-entry", and "re-entering" as used in this Lease are not restricted to their
technical legal meanings.
16.2. If this Lease shall terminate under the provisions of Article
Fifteen or if the Landlord undertakes any summary dispossess or other proceeding
or action or other measure for the enforcement of its right of re-entry (any
such termination of this Lease or undertaking by the Landlord being a "Default
Termination"), the Tenant shall thereupon pay to the Landlord the Rent up to the
time of such Default Termination, and shall likewise pay to the Landlord all
such damages which, by reason of such Default Termination, shall be payable by
the Tenant as provided in this Lease or pursuant to law. Also in the event of a
Default Termination the Landlord shall be entitled to retain all moneys, if any,
paid by the Tenant to the Landlord, whether as advance rent or as security for
rent, but such moneys shall be credited by the Landlord against any Rent due
from the Tenant at the time of such Default Termination or, at the Landlord's
option, against any damages payable by the Tenant as provided in this Lease or
pursuant to law.
16.3. In the event of a breach or threatened breach on the part of the
Tenant of any of its obligations under this Lease, the Landlord shall also have
the right of injunction. The specified remedies to which the Landlord may resort
under this Lease are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which the Landlord may lawfully be
entitled at any time, and the Landlord may invoke any remedy allowed at law or
in equity as if specific remedies were not provided for in this Lease.
ARTICLE SEVENTEEN
17. DAMAGES
17.1. If there is a Default Termination of this Lease, the Tenant shall
pay to the Landlord as damages, at the election of the Landlord, either:
(a) a sum which, at the time of such Default Termination, represents
the then present value (such computation to be made by using the then prevailing
rate of most recently issued bonds or notes issued by the United States Treasury
having a maturity closest to but not exceeding the period commencing with the
day following the date of such Default Termination and ending with the date
originally specified as the expiration date of this Lease (the "Remaining
Period")) of the excess, if any, of (1) the aggregate of the fixed rent and the
additional rent under Article Twenty-four (if any) which, had this Lease not so
terminated, would have been payable under this Lease by the Tenant for the
Remaining Period over (2) the aggregate rental value of the Premises for the
same period, or
(b) sums equal to the aggregate of the fixed rent and the additional
rent under Article Twenty-four (if any) which would have been payable by the
Tenant had this Lease
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not terminated by such Default Termination, payable upon the due dates therefor
specified in this Lease following such Default Termination and until the date
originally specified as the expiration of this Lease; provided, that if the
Landlord shall relet all or any part of the Premises for all or any part of the
Remaining Period (the Landlord having no obligation to so relet the Premises),
the Landlord shall credit the Tenant with the net rents received by the Landlord
from such reletting, such net rents to be determined by first deducting from the
gross rents as and when received by the Landlord from such reletting the
expenses incurred by the Landlord in terminating this Lease and re-entering the
Premises and of securing possession thereof, as well as the expenses of
reletting, including altering and preparing the Premises for new tenants,
brokers' commissions, and all other expenses properly chargeable against the
Premises and the rental therefrom in connection with such reletting, it being
understood that any such reletting may be for a period equal to or shorter or
longer than said period; provided, further, that (i) in no event shall the
Tenant be entitled to receive any excess of such net rents over the sums payable
by the Tenant to the Landlord, (ii) in no event shall the Tenant be entitled, in
any suit for the collection of damages pursuant to this subsubsection (b), to a
credit in respect of any net rents from a reletting except to the extent that
such net rents are actually received by the Landlord prior to the commencement
of such suit, and (iii) if the Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot
rentable area basis shall be made of the rent received from such reletting and
of the expenses of reletting.
17.2. For the purposes of this Article, the amount of additional rent
which would have been payable by the Tenant under Article Twenty-four for each
Tax Year or Operating Year (as those terms are defined in Article Twenty-four)
ending after such Default Termination shall be in an amount as shall be
reasonably determined by the Landlord. Suit or suits for the recovery of any
damages payable by the Tenant, or any installments thereof, may be brought by
the Landlord from time to time at its election, and nothing in this Lease shall
be deemed to require the Landlord to postpone suit until the date when the term
of this Lease would have expired but for such Default Termination.
17.3. Nothing in this Lease shall be construed as limiting or
precluding the recovery by the Landlord against the Tenant of any sums or
damages to which, in addition to the damages specified above, the Landlord may
lawfully be entitled by reason of any default under this Lease on the part of
the Tenant.
ARTICLE EIGHTEEN
18. WAIVERS BY TENANT
18.1. The Tenant, for itself and all other Tenant Parties, and on
behalf of any and all persons, firms, entities and corporations claiming through
or under any Tenant Party, including, without limitation, creditors of all
kinds, does hereby waive and surrender all right and privilege which they or any
of them might have under or by reason of any present or future law to redeem the
Premises or to have a continuance of this Lease for the full term hereby demised
after the Tenant is dispossessed or ejected therefrom by process of law or under
the terms of this Lease or after the expiration or termination of this Lease as
provided in this Lease or pursuant to law. The Tenant also waives (a) the right
of the Tenant to trial by jury in any summary dispossess or other proceeding
that may hereafter be instituted by the Landlord against the
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Tenant with respect to the Premises or in any action that may be brought to
recover rent, damages or other sums payable under this Lease, and (b) the
provisions of any law relating to notice and/or delay in levy of execution in
case of an eviction or dispossess of a tenant for nonpayment of rent, and of any
other law of like import now or hereafter in effect. If the Landlord commences
any such summary dispossess proceeding, the Tenant will not interpose any
counterclaim of whatever nature or description in such proceeding, other than a
compulsory counterclaim.
ARTICLE NINETEEN
19. TENANT'S REMOVAL
19.1. Any personal property which shall remain in any part of the
Premises after the expiration or termination of the term of this Lease with
respect to such part shall be deemed to have been abandoned, and either may be
retained by the Landlord as its property or may be disposed of in such manner as
the Landlord may see fit at the Tenant's cost; provided, that the Tenant will,
upon request of the Landlord, remove from the Building any such personal
property by the later of the expiration or termination of this Lease or thirty
(30) days after the Landlord's request.
19.2. If during the last month of the term of this Lease with respect
to any part of the Premises, such part of the Premises shall no longer be
occupied by the Tenant in the conduct of its business, the Landlord may, and the
Tenant hereby irrevocably grants to the Landlord a license to, enter such part
of the Premises and make such alterations in and redecorate such part of the
Premises as the Landlord shall determine in its sole discretion and the Tenant
shall not be entitled to any abatement of fixed rent or other compensation on
account thereof.
ARTICLE TWENTY
20. ELEVATORS, CLEANING, SERVICES, ETC.
20.1. The Landlord will (i) supply, during Business Hours, an elevator
for the transmission of freight and/or passengers to the floor on which the
Premises is located, (ii) subject to any applicable policies or regulations
adopted by any utility or governmental authority, supply during Business Hours
in the heating season heat for the warming of the Premises and the public
portions of the Building, and (iii) subject to any applicable policies or
regulations adopted by any utility or governmental authority, supply during
Business Hours air conditioning (including cooling during the cooling season as,
in the Landlord's judgment, may be necessary) and ventilation to all portions of
the Premises, if any, which are served by the Building's air conditioning and
ventilation systems. No representation is made by the Landlord with respect to
the adequacy or fitness of such air conditioning or ventilation. Unless
otherwise provided in this Lease, "Business Hours", means the generally
customary daytime business hours of the Tenant (but not before 8:00 A.M. or
after 6:00 P.M.) of days other than Saturdays, Sundays and, as established by
the Landlord, holidays.
20.2. The Landlord shall, when and to the extent reasonably requested
by the Tenant, and to the extent available furnish (i) additional heating and/or
ventilating and (ii) cleaning services, all upon such reasonable terms and
conditions as shall be determined by
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the Landlord, including the payment by the Tenant of the Landlord's reasonable
charge therefor. The Tenant will also pay the Landlord's reasonable charge for
(a) any cleaning of the Premises required because of the carelessness or
indifference of any Tenant Party or because of the nature of any Tenant Party
business, and (b) the removal of any refuse and rubbish of any Tenant Party from
the Premises and the Building.
20.3. The Landlord reserves the right, without liability to the Tenant
and without constituting any claim of constructive eviction, to stop or
interrupt any heating, elevator, lighting, ventilating, air conditioning, power,
water, cleaning or other service and to interrupt the use of any Building
facilities, at such times as may be necessary and for as long as may reasonably
be required by reason of accidents, strikes, the making of repairs, alterations
or improvements, inability to secure a proper supply of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond the
reasonable control of the Landlord.
ARTICLE TWENTY-ONE
21. LEASE CONTAINS ALL AGREEMENTS-NO WAIVERS
21.1. This Lease contains all of the understandings relating to the
leasing of the Premises and the Landlord's obligations in connection therewith
and neither the Landlord nor any agent or representative of the Landlord has
made or is making, and the Tenant in executing and delivering this Lease is not
relying upon, any warranties, representations, promises or statements
whatsoever, except to the extent expressly set forth in this Lease. All
understandings and agreements, if any, heretofore had between the parties are
merged in this Lease, which alone fully and completely expresses the agreement
of the parties.
21.2. The failure of the Landlord to insist in any instance upon the
strict keeping, observance or performance of any provision of this Lease or to
exercise any election in this Lease shall not be construed as a waiver or
relinquishment for the future of such provision, but the same shall continue and
remain in full force and effect. No waiver or modification by the Landlord of
any provision of this Lease shall be deemed to have been made unless expressed
in writing and signed by the Landlord. No surrender of possession of the
Premises or of any part thereof or of any remainder of the term of this Lease
shall release the Tenant from any of its obligations under this Lease unless
accepted by the Landlord in writing. The receipt and retention by the Landlord
of Rent from anyone other than the Tenant shall not be deemed a waiver of the
breach by the Tenant of any provision in this Lease, or the acceptance of such
other person as a tenant, or a release of the Tenant from its further observance
of the provisions of this Lease. The receipt and retention by the Landlord of
Rent with knowledge of the breach of any provision of this Lease shall not be
deemed a waiver of such breach.
ARTICLE TWENTY-TWO
22. PARTIES BOUND; EXCULPATION
22.1. The provisions of this Lease shall bind and benefit the
respective successors, assigns and legal representatives of the parties to this
Lease except that (1) no violation of the provisions of Article Seven shall
operate to vest any rights in any successor, assignee or legal representative of
the Tenant and (2) the provisions of this Article shall not be
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construed as modifying the conditions of limitation contained in Article
Fifteen. The obligations of the Landlord under this Lease shall not, however, be
binding upon the Landlord herein named (or any transferee of its interest in the
Building or the Premises) with respect to the period subsequent to the transfer
of its interest in the Building or the Premises (a lease of the entire interest
being deemed such a transfer).
22.2. The Tenant shall look solely to the Landlord's interest in the
Land and the Building (or the proceeds thereof) for the satisfaction of any
monetary claim under this Lease, or for the collection of any judgment (or other
judicial process) based thereon, and no other property or assets of the Landlord
(or any affiliate, shareholder, director, officer, employee, partner, agent,
representative, or beneficiary of the Landlord, disclosed or undisclosed) shall
be subject to levy, execution or other enforcement procedure for the
satisfaction of such claim or judgment (or other judicial process).
ARTICLE TWENTY-THREE
23. CURING TENANT'S DEFAULTS-ADDITIONAL RENTS
23.1. If the Tenant shall default in the observance of any provision of
this Lease, the Landlord, without thereby waiving such default, may perform the
same for the account and at the expense of the Tenant (a) immediately or at any
time thereafter and without notice in the case of emergency or in case such
default unreasonably interferes with the use by any other tenant of any space in
the Building or with the efficient operation of the Building or will result in a
violation of any Requirement applicable to the Land, the Building or the
Premises or any part thereof, to the Tenant's use thereof or to the Tenant's
observance of any provision of this Lease, or in a cancellation of an insurance
policy maintained by the Landlord, and (b) in any other case if such default
continues after fifteen (15) days from the date of the giving by the Landlord of
notice of the Landlord's intention so to perform the same, provided, however,
that if the Tenant's default constitutes a default under any underlying lease or
underlying mortgage and the lessor or mortgagee thereof notifies the Landlord of
such default, then if the cure period afforded the Tenant extends beyond the
tenth day preceding the end of the cure period permitted to the Landlord under
the underlying lease or underlying mortgage, the Landlord may so notify the
Tenant, in which event the Landlord's right to cure the Tenant's default will
commence upon such tenth day. All costs and expenses incurred by the Landlord in
connection with any such performance by it for the account of the Tenant and all
costs and expenses, including reasonable counsel fees and disbursements incurred
by the Landlord in any action or proceeding (including any summary dispossess
proceeding) brought by the Landlord to enforce any obligation of the Tenant
under this Lease and/or right of the Landlord in or to the Premises, shall be
paid by the Tenant to the Landlord upon demand. Except as expressly provided to
the contrary in this Lease, all costs and expenses which, pursuant to this Lease
(including the rules and regulations referred to in this Lease) are incurred by
the Landlord and payable to it by the Tenant and all charges, amounts and sums
payable to the Landlord by the Tenant for any property, material, labor, utility
or other services which, pursuant to this Lease or at the request and for the
account of the Tenant, are provided, furnished or rendered by the Landlord shall
become due and payable by the Tenant to the Landlord in accordance with the
terms of bills therefor to be rendered by the Landlord to the Tenant. If any
cost, expense, charge, amount or sum referred to in this Section or elsewhere in
this Lease is not paid when due as provided in this Lease, the same shall become
due by the
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Tenant as additional rent under this Lease. If any Rent or damages payable under
this Lease is not paid when due, the same shall bear interest at the rate of 2%
per month (but in no event at a rate in excess of that permitted by law) from
the due date thereof until paid and the amount of such interest shall be deemed
additional rent under this Lease. If there is a nonpayment by the Tenant of any
such additional rent and/or any other additional rent becoming due under this
Lease, the Landlord, in addition to any other right or remedy, shall have the
same rights and remedies as in the case of default by the Tenant in the payment
of the fixed rent. If the Tenant is in arrears in payment of Rent, the Tenant
waives the Tenant's right, if any, to designate the items against which any
payments made by the Tenant are to be credited, and the Landlord may apply any
payments made by the Tenant to any items the Landlord sees fit, irrespective of
and notwithstanding any designation or request by the Tenant as to the items
against which any such payments shall be credited. The Landlord reserves the
right, without liability to the Tenant and without constituting any claim of
constructive eviction, to suspend furnishing or rendering to the Tenant any
property, material, labor, utility or other service, wherever the Landlord is
obligated to furnish or render the same at the expense of the Tenant, in the
event that (but only so long as) the Tenant is in arrears in paying the Landlord
therefor at the expiration of five (5) days after the Landlord shall have given
to the Tenant notice demanding the payment of such arrears.
ARTICLE TWENTY-FOUR
24. REAL ESTATE TAXES AND OPERATING EXPENSES
24.1. The following terms shall have the meanings set forth below:
"Landlord's Statement" means an instrument or instruments stating
either (i) the Taxes for any Tax Year, or (ii) the Operating Expenses for any
Operating Year.
"Taxes" shall include the aggregate amount of (i) all real estate
taxes, assessments (special or otherwise), sewer and water rents, rates and
charges, business improvement district impositions and any other governmental
levies, impositions or charges, whether general, special, ordinary,
extraordinary, foreseen or unforeseen, which may be assessed, levied or imposed
upon all or any part of the Land or the Building, and (ii) any expenses
(including attorneys' fees and disbursements and experts' and other witness'
fees) incurred in contesting any of the foregoing or the assessed value of all
or any part of the Land or the Building. If at any time after the date hereof
the methods of taxation prevailing at the date hereof shall be altered so that
in lieu of or as an addition to or as a substitute for the whole or any part of
any Taxes there shall be assessed, levied or imposed (A) a tax, assessment,
levy, imposition or charge based on the rents received from the Land or the
Building, whether or not wholly or partially as a capital levy or otherwise, (B)
a license fee measured by the rents, or (C) any other tax, assessment, levy,
imposition, charges or license fee however described, measured by or based in
whole or in part upon all or any part of the Land or the Building and imposed
upon the Landlord, then all such taxes, assessments, levies, impositions,
charges or license fees or the part thereof so measured or based shall be deemed
to be Taxes. Taxes shall not include franchise, gift, inheritance, estate, sales
or gross receipts taxes imposed upon the Landlord by any governmental authority.
"Excess Taxes" shall mean the amount equal to the difference between
(i) Taxes for any Tax Year, and (ii) Taxes for the Tax Year ending June 30,
2003. In the event that Taxes for any
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specific Tax Year are less than the Taxes for the Tax Year ending June 30, 2003,
then Excess Taxes shall be zero.
"Tax Year" means the period July 1 through June 30 (or such other
period as may be duly adopted by the City of New York as its fiscal year for
real estate tax purposes), all or any portion of which falls within the Lease
term.
"Tenant's Projected Tax Payment" means the Landlord's estimate of the
Tenant's Tax Payment for the then current Tax Year, payable in equal monthly
installments by the Tenant to the Landlord as additional rent, which may be
revised by the Landlord from time to time during any Tax Year.
"Tenant's Share" means eighteen percent (18%).
"Tenant's Tax Payment" means Tenant's Share of the Excess Taxes for any
Tax Year.
"Operating Year" means each calendar year, all or any portion of which
falls within the Lease term.
"Operating Expenses" shall include the aggregate of all costs and
expenses (and taxes, if any, thereon) paid or incurred by or on behalf of the
Landlord (whether directly or through independent contractors) in accordance
with generally accepted accounting principles consistently applied in respect of
the operation, maintenance, repair, replacement, management and security of the
Land and the Building, including insurance premiums (and the additional costs,
if any, of commercially reasonable endorsements and waiver of the insurer's
right of subrogation), the cost of electricity, gas, oil, steam, water, air
conditioning and other fuel and utilities serving common areas of the Building
(i.e., areas not leased to the Tenant or other tenants of the Building which are
used or usable for the benefit of all tenants generally), the reasonable costs
of leasing and operating any Building management office at the Building,
attorneys' fees and disbursements and auditing, management and other
professional fees and expenses, and cleaning and janitorial services for common
areas, but specifically excluding (i) Taxes, (ii) franchise or income taxes
imposed upon the Landlord, (iii) mortgage amortization and interest, (iv)
leasing commissions, (v) the cost of tenant installations and decorations
incurred in connection with preparing space for a new tenant, (vi) the cost of
electricity supplied to Building tenants (including the Tenant) for their
separate use which is paid for by such tenants, (vii) administrative salaries
and wages of the Landlord's employees above the grade of Building manager,
(viii) ground rent, (ix) the cost of repairs or other work incurred by reason of
fire, windstorm or other casualty, except those expenses not covered by
insurance proceeds and (x) the cost of capital improvements or alterations,
except for capital improvements which (A) are required in order to comply with
Requirements, (B) constitute improvements or replacements to structural elements
of the Building or Building systems made following the expiration of the useful
lives thereof, or (C) result in reducing Operating Expenses (as, for example, a
labor-saving improvement). The cost of such capital improvements, amortized on a
straight-line basis, with interest at the rate of ten percent (10%) per annum,
shall be added to Operating Expenses for each Operating Year during the Lease
term from and after the date any such capital improvement is made. If the
occupancy of the Building during any Operating Year is less than ninety-five
percent (95%), the Landlord shall make an appropriate adjustment of the variable
-23-
components of Operating Expenses that would have been incurred had the Building
been ninety-five percent (95%) occupied. For purposes hereof, "variable
components" shall include only those components of Operating Expenses that are
directly affected by variations in occupancy levels.
"Excess Operating Expenses" shall mean the amount equal to the
difference between (i) Operating Expenses for any Operating Year, and (ii)
Operating Expenses for the twelve (12)-month period ended December 31, 2002
("Base Operating Year"). In the event that Operating Expenses for any specific
Operating Year are less than the Operating Expenses for the Base Operating Year,
then Excess Operating Expenses shall be zero.
"Tenant's Operating Payment" means Tenant's Share of the Excess
Operating Expenses payable for any Operating Year.
"Tenant's Projected Operating Payment" means the Landlord's reasonable
estimate of Tenant's Operating Payment for the then current Operating Year,
payable in equal monthly installments by the Tenant to the Landlord as
additional rent, which may be revised by the Landlord from time to time during
any Operating Year.
24.2. (a) During the Lease term, the Tenant shall pay Tenant's
Tax Payment to the Landlord commencing on and as of July 1, 2003, and
Tenant's Operating Payment to the Landlord commencing on and as of
February 1, 2003. The Tenant shall pay Tenant's Projected Tax Payment
and Tenant's Projected Operating Payment to the Landlord on each fixed
rent payment date ("Payment Date") from and after the respective dates
set forth in the preceding sentence. Notwithstanding the foregoing, the
Landlord may elect to collect Tenant's Tax Payment in full or in
quarterly or biannual or other installments on any Payment Date the
Landlord designates in writing. If the Landlord shall fail to provide
to the Tenant a statement of Tenant's Projected Tax Payment or Tenant's
Projected Operating Payment for any Tax Year or Operating Year, or
shall revise Tenant's Projected Tax Payment or Tenant's Projected
Operating Payment during any Tax Year or Operating Year, then until
such statement or revised statement is provided to the Tenant, the
Tenant shall continue to pay Tenant's Projected Tax Payment and
Tenant's Projected Operating Payment in the amount payable by the
Tenant in respect of the preceding Tax Year or Operating Year.
(b) After the end of each Tax Year and Operating Year, the Landlord
shall furnish to the Tenant a Landlord's Statement for such Tax Year and
Operating Year. Each such Landlord's Statement shall be accompanied by a
computation of the actual amount of Taxes and Operating Expenses for the Land
and the Building for the preceding Tax Year or Operating Year. If any Landlord's
Statement shall show that the sums paid by the Tenant resulted in (i) an
underpayment by the Tenant of Tenant's Tax Payment or Tenant's Operating
Payment, the Tenant shall pay to the Landlord the amount of the underpayment
within thirty (30) days after notice from the Landlord, or (ii) an overpayment
by the Tenant of Tenant's Tax Payment or Tenant's Operating Payment, the
Landlord shall apply a credit in the amount of the overpayment against the next
installments of additional rent payable by the Tenant under this Lease, and if
any such credit remains outstanding as of the expiration or termination date of
the Lease term and there is no default by the Tenant in the performance of its
Lease obligations which is then
-24-
continuing beyond the expiration of any applicable notice and cure period(s),
the Landlord will pay the amount thereof to the Tenant within ninety (90) days
thereafter. Each of the parties' respective obligations under this Lease in the
case of overpayment or underpayment shall survive the expiration or earlier
termination of this Lease.
(c) Only the Landlord shall be eligible to institute Tax reduction or
other proceedings to reduce the assessed value of the Land and/or the Building,
and the filing of any Tax reduction or other proceedings by the Tenant without
the Landlord's prior consent shall constitute a default under this Lease. If
during the Lease term the Landlord shall receive a refund or reduction of Taxes
for any Tax Year after the Tax Year ending June 30, 2003, or any Tax abatement,
exemption or deferral, the Landlord shall, within thirty (30) days after such
refund, discount, abatement or other benefit is actually received or credited
against Taxes then due and payable, either pay to the Tenant, or at the
Landlord's election, credit against the future installments of fixed rent due
under this Lease, an amount equal to Tenant's Share of the refund or reduction,
provided that such amount shall not exceed Tenant's Tax Payment paid for such
Tax Year. Nothing herein contained shall obligate the Landlord to file any
application or institute any proceeding seeking a reduction in Taxes or the
assessed value of the Land and/or the Building.
(d) Tenant's Tax Payment shall be made as provided in this Section 24.2
regardless of the fact that the Tenant may be exempt, in whole or in part, from
the payment of any taxes by reason of the Tenant's tax exempt status or for any
other reason whatsoever.
ARTICLE TWENTY-FIVE
25. MISCELLANEOUS
25.1. Without incurring any liability to the Tenant, the Landlord may
permit access to the Premises and open the same, whether or not the Tenant shall
be present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshal or court officer entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, the Tenant's property or for any other purpose (but this
provision and any action by the Landlord hereunder shall not be deemed a
recognition by the Landlord that the person or official making such demand has
any right or interest in or to this Lease, or in or to the Premises), or upon
demand of any representative of the fire, police, building, sanitation or other
department of the city, state or federal government.
25.2. If an excavation shall be made upon any land adjacent to the
Building, or shall be authorized to be made, the Tenant shall afford to the
person causing or authorized to cause such excavation a license to enter upon
the Premises for the purpose of doing such work as said person shall deem
necessary to preserve the Building from injury or damage, all without any claim
for damages or indemnity against the Landlord or diminution or abatement of
rent.
25.3. The Tenant shall not be entitled to exercise any right of
termination or other option granted to it by this Lease at any time when the
Tenant is in default under this Lease. With respect to any such exercise, time
shall be of the essence.
-25-
25.4. The headings of the Articles of this Lease are for convenience
only and are not to be considered in construing said Articles. The Tenant
understands, acknowledges and agrees that (a) this Lease has been freely
negotiated by both parties hereto with the assistance of competent counsel, and
(b) in any controversy, dispute, contest, proceeding or action over the meaning,
interpretation, validity or enforceability of this Lease, or any term,
provision, agreement or condition herein, there shall be no inference,
presumption or conclusion drawn whatsoever against either party by virtue of
such party having drafted, or caused to be drafted, this Lease or any portion
hereof, and, to the fullest extent possible, this Lease and all of its
provisions shall be construed without regard to any presumption or other rule
requiring construction against the party drafting, or causing to be drafted,
this Lease.
25.5. If the Tenant holds-over in the Premises after the expiration or
termination of this Lease without the consent of the Landlord, the Tenant shall:
(a) pay as hold-over rental for each month of the hold-over tenancy an
amount equal to the greater of (i) one and one-half times the fair market rental
value of the Premises for such month (as reasonably determined by Landlord) or
(ii) one and one-half times the Rent which Tenant was obligated to pay for the
month immediately preceding the expiration or termination of this Lease;
(b) be liable to the Landlord for (i) any payment or rent concession
which Landlord may be required to make to any tenant obtained by the Landlord
for all or any part of the Premises (a "New Tenant") in order to induce such New
Tenant not to terminate its lease by reason of the holding-over by the Tenant
and (ii) the loss of the benefit of the bargain if any New Tenant shall
terminate its lease by reason of the holding-over by the Tenant; and
(c) indemnify the Landlord against all claims for damages by any New
Tenant.
No holding-over by the Tenant, nor the payment to the Landlord of the
amounts specified above, shall operate to extend the term of this Lease.
25.6. Any obligation of the Landlord or the Tenant which by its nature
or under the circumstances can only be, or by the provisions of this Lease may
be, performed after the expiration or earlier termination of this Lease, and any
liability for a payment which shall have accrued to or with respect to any
period ending at the time of such expiration or termination, unless expressly
otherwise provided in this Lease, shall survive the expiration or earlier
termination of this Lease.
25.7. If any provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
25.8. It is the intention of the Landlord and the Tenant to create the
relationship of landlord and tenant, and no other relationship whatsoever, and
nothing herein shall be
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construed to make the Landlord and the Tenant partners or joint venturers, or to
render either party hereto liable for any of the debts or obligations of the
other party.
25.9. The Landlord and the Tenant acknowledge that (i) improvements
(including Fixtures) made or installed by the Tenant in the Premises do not
constitute consideration for the granting of this Lease to the Tenant and (ii)
there has been no adjustment in the fixed or additional rent payable under this
Lease on account of such improvements (including Fixtures).
25.10. If there is any payment required to be made by the Tenant under
this Lease for which no time period is stated within which the payment must be
made, such payment shall be made within thirty (30) days after demand by the
Landlord.
ARTICLE TWENTY-SIX
26. INTENTIONALLY OMITTED
ARTICLE TWENTY-SEVEN
27. BROKERAGE COMMISSION
27.1. The Tenant represents that it has dealt with no brokers in
connection with this Lease. The Tenant shall indemnify, defend (with legal
counsel reasonably acceptable to the Landlord) and hold harmless the Indemnitees
from and against all liability, claims, suits, demands, judgments, costs,
interest and expenses (including reasonable counsel fees and disbursements
incurred in the defense thereof) to which the Indemnitees may be subject or
suffer by reason of any claim made by any person, firm or corporation for any
commission, expense or other compensation as a result of the execution and
delivery of this Lease or the demising of the Premises by the Landlord to the
Tenant pursuant to this Lease.
ARTICLE TWENTY-EIGHT
28. QUIET ENJOYMENT
28.1. If, and so long as, the Tenant performs each and every provision
in this Lease on the part of the Tenant to be performed, the Tenant shall
quietly enjoy the Premises without hindrance or molestation by the Landlord
subject, however, to the provisions of this Lease and to the Qualified
Encumbrances.
ARTICLE TWENTY-NINE
29. HAZARDOUS SUBSTANCES
29.1. The Tenant shall not (i) cause or permit to be brought to the
Building or the Land any hazardous substances, (ii) cause or permit the storage
or use of hazardous substances in any manner not permitted by any Requirements
applicable to the Land, the Building or the Premises or any part thereof, or
(iii) cause or permit the escape, disposal or release of any hazardous
substances on or in the vicinity of the Building or Land; provided, that
-27-
nothing herein shall prevent the Tenant's use of any hazardous substances
customarily used in the ordinary course of office work if such use is for such
ordinary course of office work and is in accordance with all Requirements
applicable to the Land, the Building or the Premises or any part thereof.
29.2. "Hazardous substances" are (i) any "hazardous wastes" as defined
by the Resource, Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901
et seq.), as amended, and regulations promulgated thereunder; (ii) any
"hazardous, toxic or dangerous waste, substance or material" specifically
defined as such in (or for purposes of) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
seq.), as amended, and regulations promulgated thereunder; and (iii) any
hazardous, toxic or dangerous chemical, biological or other waste, substance or
material as defined in any so-called "superfund" or "superlien" law or any other
federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to or imposing liability or standards of conduct
concerning such waste, substance or material; including, without limiting the
generality of the foregoing, asbestos, radon, urea formaldehyde, polychlorinated
biphenyls, and petroleum products including gasoline, fuel oil, crude oil and
various constituents of such products. Without limiting the generality of
Section 6.1(j) hereof, the Tenant agrees that the covenants and warranties
contained in this Article are included within the matters as to which the
Indemnitees shall be indemnified pursuant to said Section 6.1(j).
29.3. The covenants contained in this Article shall survive the
expiration or earlier termination of this Lease.
ARTICLE THIRTY
30. BILLBOARD
30.1. Subject to the terms and conditions of this Lease, the Tenant
shall have the right to display advertisements on the billboard currently
attached to the east side of the Building (the "Billboard"), provided that any
and all such advertisements shall have been, in each instance, approved by the
Landlord prior to the display of same, such approval of the Landlord not to be
unreasonably withheld or delayed. The Tenant's acceptance and use of the
Billboard shall be governed by the terms and provisions of this Lease which
relate to the acceptance, use and occupancy of the Premises, including, without
limitation, Sections 2.1, 3.2, 3.3, 4.1, 6.1, 11.1 and 19.1 hereof. In
consideration for the right to display advertisements on the Billboard pursuant
to this Article, the Tenant shall pay the Landlord the sum of Eight Thousand
Dollars ($8,000) per month (the "Billboard Rent") at such time and place that
fixed rent shall be paid to the Landlord pursuant to Article One hereof. Either
party hereto shall have the option to terminate the Tenant's right to use the
Billboard as herein provided upon sixty (60) days prior written notice to the
other party hereto. From and after the effective date of such termination
notice, the Tenant shall have no further right to display advertisements on the
Billboard and shall not be obligated to pay the Billboard Rent. In the event
neither party hereto shall have exercised its option to terminate the Tenant's
right to utilize the Billboard as herein contemplated prior to a Default
Termination, then in addition to any other sums due to the Landlord by the
Tenant hereunder or otherwise in connection with a Default Termination, the
Tenant shall pay to the Landlord as damages an amount equal to Sixteen Thousand
Dollars ($16,000), less any net rents
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received by the Landlord with respect to the lease of the Billboard during the
sixty (60) day period following a Default Termination, such net rents to be
determined by first deducting from the gross rents as and when received by the
Landlord from such reletting the expenses incurred by the Landlord in reletting
the Billboard, including altering and preparing the Billboard for new tenants,
brokers' commissions, and all other expenses properly chargeable against the
Billboard and the rental therefrom in connection with such reletting, it being
understood that any such reletting may be for a period equal to or shorter or
longer than said sixty (60) day period; provided, further, that (i) in no event
shall the Tenant be entitled to receive any excess of such net Billboard rents
over the sum of Sixteen Thousand Dollars ($16,000), and (ii) if the Billboard or
any part thereof should be relet in combination with other space, then proper
apportionment shall be made of the rent received from such reletting and of the
expenses of reletting.
-29-
IN WITNESS WHEREOF, the Landlord and the Tenant have duly executed this
Lease as of the day and year first above written.
LANDLORD:
000 X. 00XX CORP.
BY: /S/ Xxxxxx Xxxxxxxx
---------------------------
NAME: XXXXXX XXXXXXXX
TITLE: CHIEF EXECUTIVE OFFICER
TENANT:
G-III LEATHER FASHIONS INC.
BY: /S/ Xxxxx Xxxxxx
---------------------------
NAME: XXXXX X. XXXXXX
TITLE: CHIEF FINANCIAL OFFICER
-30-
RULES AND REGULATIONS
1. The rights of the Tenant in the sidewalks, entrances, corridors,
stairways and elevators of the Building are limited to ingress to and egress
from the Premises for any Tenant Party, and the Tenant shall not invite to the
Premises, nor permit the visit thereto by, persons in such numbers or under such
conditions as to interfere with the use and enjoyment by others of the
sidewalks, entrances, corridors, stairways, elevators or any other facilities of
the Building. Fire exits and stairways are for emergency use only, and they
shall not be used for any other purpose by any Tenant Party. The Landlord shall
have the right to regulate the use of and operate the public portions of the
Building, as well as portions furnished for the common use of the tenants, in
such manner as it deems best for the benefit of the tenants generally.
2. The Landlord may refuse admission to the Building outside of
Business Hours to any person not having a pass issued by the Landlord or not
properly identified, and may require all persons admitted to or leaving the
Building outside of Business Hours to register. Any person whose presence in the
Building at any time shall, in the judgment of the Landlord, be prejudicial to
the safety, character, reputation and interests of the Building or of its
tenants may be denied access to the Building or may be ejected therefrom. In
case of invasion, riot, public excitement or other commotion the Landlord may
prohibit all access to the Building during the continuance of the same, by
closing doors or otherwise, for the safety of the tenants or protection of
property in the Building. The Landlord shall, in no way, be liable to the Tenant
for damages or loss arising from the admission, exclusion or ejection of any
person to or from the Premises or the Building under the provisions of this
rule. The Landlord may require any person leaving the Building with any package
or other object to exhibit a pass from the tenant from whose Premises the
package or object is being removed, but the establishment or enforcement of such
requirement shall not impose any responsibility on the Landlord for the
protection of the Tenant against the removal of property from the Premises of
the Tenant.
3. The Tenant shall not obtain or accept for use in the Premises ice,
drinking water, food, beverage, towel, linen, uniform, barbering, bootblacking
or similar or related services from any persons not authorized by the Landlord
to furnish such services. Such services shall be furnished only at such hours,
in such places within the Premises and under such regulations as may be fixed by
the Landlord.
4. Where any damage to the public portions of the Building or to any
portions used in common with other tenants is caused by any Tenant Party, the
cost of repairing the same shall be paid by the Tenant upon demand.
5. No lettering, sign, advertisement, trademark, emblem, notice or
object shall be displayed in or on the windows or doors, or on the outside of
the Premises, or at any point inside the Premises where the same might be
visible outside the Premises, except that the name of the Tenant may be
displayed on the entrance door of the Premises, subject to the approval of the
Landlord as to the location, size, color and style of such display.
6. No awnings or other projections of any kind over or around the
windows or entrances of the Premises shall be installed by the Tenant, and only
such window blinds and
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shades as are approved by the Landlord shall be used in the Premises. Linoleum,
tile or other floor covering shall be laid in the Premises only in a manner
approved by the Landlord.
7. The Landlord shall have the right to prescribe the weight and
position of safes and other objects of excessive weight, and no safe or other
object whose weight exceeds the lawful load for the area upon which it would
stand shall be brought into or kept upon the Premises. If, in the judgment of
the Landlord, it is necessary to distribute the concentrated weight of any safe
or heavy object, the work involved in such distribution shall be done in such
manner as the Landlord shall determine and the expense thereof shall be paid by
the Tenant. The moving of safes and other heavy objects shall take place only
upon previous notice to, and at times and in a manner approved by, the Landlord,
and the persons employed to move the same in and out of the Building shall be
acceptable to the Landlord. No machines, machinery or electrical or electronic
equipment or appliances of any kind shall be placed or operated so as to disturb
other tenants. Freight, furniture, business equipment, merchandise and packages
of any description shall be delivered to and removed from the Premises only in
the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by the Landlord.
8. No noise, including the playing of any musical instrument, radio or
television, which, in the judgment of the Landlord, might disturb other tenants
in the Building, shall be made or permitted by the Tenant. No animal shall be
brought into or kept in the Building or the Premises. No dangerous, inflammable,
combustible or explosive object or material shall be brought into or kept in the
Building by the Tenant or with the permission of the Tenant, except as permitted
by law and the insurance companies insuring the Building or the property
therein. The Tenant shall not cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors, to permeate in or
emanate from the Premises. Any trash containers or receptacles used as such in
the Premises shall be emptied, cared for and cleaned by the Tenant.
9. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows in the Premises and no lock on any door shall be changed or
altered in any respect. Duplicate keys for the Premises and toilet rooms shall
be procured only from the Landlord, and the Tenant shall pay to the Landlord the
Landlord's reasonable charge therefor. Upon the expiration or termination of the
Lease, all keys to the Premises and toilet rooms shall be delivered to the
Landlord.
10. All entrance doors in the Premises shall be left locked by the
Tenant when the Premises are not in use. No door (other than a door in an
interior partition of the Premises) shall be left open at any time.
11. The Landlord reserves the right to rescind, alter or waive any rule
or regulation at any time prescribed by the Landlord when, in its judgment, it
deems it necessary, desirable or proper for its best interest or for the best
interests of the tenants, and no recission, alteration or waiver of any rule or
regulation in favor of one tenant shall operate as a recission, alteration or
waiver in favor of any other tenant. The Landlord shall not be responsible to
the Tenant for the nonobservance or violation by any other tenant of any of the
rules or regulations at any time prescribed by the Landlord.
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12. The Tenant shall promptly notify the Landlord of any inspection of
the Premises by governmental agencies having jurisdiction over matters involving
health or safety.
13. The Tenant shall be responsible for maintaining the Premises rodent
and insect free. Extermination services shall be provided by the Tenant, at its
sole cost and expense, on a monthly basis.
14. All food storage areas shall be adequately protected against vermin
entry by a contractor approved in advance by the Landlord.
15. Drain pipes shall be kept free of obstructions and operable at all
times.
16. Exit signs shall be illuminated, and other exit identification
shall be operable, at all times.
17. Emergency lighting, including battery components, shall be in good
working condition at all times.
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1. Demise of Premises, Term and Rent.....................1
2. Occupancy.............................................2
3. Use of Premises.......................................3
4. Fixtures..............................................3
5. Electric Current and Water............................4
6. Various Covenants.....................................5
7. Assignment, Mortgaging, Subletting, etc...............9
8. Changes or Alterations by Landlord...................10
9. Damage by Fire, etc..................................10
10. Condemnation.........................................11
11. Compliance with Laws.................................13
12. Accidents to Sanitary and other Systems..............13
13. Subordination........................................14
14. Notices..............................................15
15. Conditions of Limitation.............................15
16. Re-entry by Landlord.................................17
17. Damages..............................................17
18. Waivers by Tenant....................................19
19. Tenant's Removal.....................................19
20. Elevators, Cleaning, Services, etc...................19
21. Lease Contains All Agreements-No Waivers.............20
22. Parties Bound; Exculpation...........................21
23. Curing Tenant's Defaults-Additional Rents............21
24. Real Estate Taxes and Operating Expenses.............22
25. Miscellaneous........................................25
26. Intentionally Omitted................................27
27. Brokerage Commission.................................27
28. Quiet Enjoyment......................................28
29. Hazardous Substances.................................28
30. Billboard............................................28
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