EXHIBIT 10.1
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XXXXXXXXX ASSOCIATES LANDLORD
To
XXXX-XX KNITWEAR, INC. TENANT
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_____________________
LEASE
PREMISES 0000 XXXXXXXX
SPACE:
Unit "2806" on the 28th Floor
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Unit "2903-9" on the 29th Floor
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TERM:
from June 1, 1998 to January 31, 2004
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LEASE, dated May 12, 1998, between XXXXXXXXX ASSOCIATES, a limited
partnership, hereinafter referred to as "Landlord," and XXXX-XX KNITWEAR INC., a
New York Corporation, having its principal place of business at 00 Xxxxxx Xxxxx,
Xxxxxx, Xxx Xxxxxx 00000, hereinafter jointly, severally and collectively
referred to as "Tenant,"
WITNESSETH: The Landlord does hereby lease to Tenant, and Tenant does hereby
take from the Landlord, the space(s) designated as Unit "2806" on the 28th floor
& Unit "2903-9" on the 29th floor, twenty-eighth & substantially as outlined in
red on the plan(s) attached hereto, on the twenty ninth floor of the building
known as 0000 XXXXXXXX, hereinafter referred to as "the building," in the
Borough of Manhattan, City, County and State of New York, which space, together
with all the fixtures and improvements which, at the commencement of or during
the term, are thereto attached, is hereinafter referred to as "the premises" or
"the demised premises," for a term to commence on June 1, 1998, and to end on
January 31, 2004, at the annual rental of THREE HUNDRED SEVENTY SIX THOUSAND AND
NO/100 ($376,000.00) DOLLARS, which Tenant agrees to pay in lawful money of the
United States of America, in equal monthly installments in advance on the first
day of each month during said term, at the office of Landlord, except that
Tenant shall pay the first monthly installment on the execution hereof unless
this lease (Lease) be a renewal.
The parties hereto, for themselves their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant, as follows:
1. Tenant shall pay the rent and additional rent as above and as hereinafter
provided.
2. Tenant shall use and occupy the premises for SHOWROOM AND OFFICE FOR THE
SALE (WHOLESALE ONLY) AND DISPLAY OF LADIES WEARING APPAREL, and the
premises shall be used for no other purpose.
3. ASSIGNMENT AND SUBLETTING. Tenant for itself, its heirs, distributees,
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executors, administrators, legal representatives, successors and assigns
expressly covenants that it shall
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not assign, mortgage or encumber this Lease, nor sublet or suffer or permit
the demised premises or any part thereof, to be used by others without the
prior written consent of Landlord in each instance. The transfer of a
majority of any class of the issued and outstanding capital stock of any
corporate Tenant of this Lease or majority of the total interest of any
partnership or individual Tenant, however accomplished, whether in a single
transaction or in series of related or unrelated transactions, shall be
deemed an assignment of this Lease. If this Lease be assigned or if the
demised premises or any part thereof be sublet or occupied by anyone other
than Tenant, Landlord may, after default by Tenant, collect rent,
additional rent and other charges from the assignee, sublessee or occupant,
and apply the net amount so collected to the rent, additional rent or other
charges herein provided, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of
the assignee, sublessee or occupant as tenant, or a release of Tenant from
the further performance by it of the covenants on its part to be performed
hereunder. The consent by Landlord to an assignment or subletting shall not
in any wise be construed to relieve Tenant, subtenant or any assignee from
obtaining the express consent in writing of Landlord to any further
assignment or subletting. The listing of any name other than that of the
Tenant, whether on the doors of the premises or on the building or floor
directories, or otherwise, shall not operate to vest any right or interest
in this Lease or in the premises, or be deemed to be the written consent of
the Landlord mentioned in this paragraph, it being expressly understood
that any such listing is a privilege extended by the Landlord, revocable at
will by written notice to the Tenant, subtenant or assignee where Landlord
has consented in writing to such subleasing or assignment.
4. OBSTRUCTIONS, SIGNS. The Tenant shall not obstruct or permit the
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obstruction of windows, halls, areas, roofs, stairways or entrances to the
building, and will not affix, erect or inscribe any signs, projections,
awnings, signals, lettering, painting or advertisements of any kind to any
part of the premises including the inside or outside of the windows or
doors and will not paint the inside or outside of the windows or doors
unless and until the style,
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size, color, construction and location thereof have been approved in
writing by the Landlord. The Landlord shall have the right to withdraw such
approval at any time and to require the Tenant to remove any such signs,
projections, awnings, signals, lettering, painting or advertisements
without being liable to the Tenant by reason thereof and to charge the cost
of doing so to the Tenant as additional rent. The Landlord also reserves to
itself the sole right to designate the person, firm or corporation which
shall do the work of lettering, painting and erecting of any and all signs
to be affixed to the premises or the building.
5. ALTERATIONS, LIENS. Tenant shall make no alterations, changes, repairs,
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decorations, additions or improvements (structural or non-structural), in
or to the demised premises including any and all mechanical, electrical,
air conditioning, heating, and plumbing systems without Landlord's prior
written consent, and then only by contractors or mechanics approved by
Landlord. All such work shall be done at such times and in such manner as
Landlord may designate. Prior to Tenants commencing any work in and to the
premises as provided in this paragraph, Tenant shall obtain in writing and
deliver to Landlord, written and unconditional waivers of mechanics' and
materialmen's liens from the persons or parties who are to perform such
work and services in the premises, in such form as may be approved by
Landlord. Any mechanic's or other lien filed against the premises or the
building, for work claimed to have been done for or materials claimed to
have been furnished to Tenant, shall be discharged by Tenant within 10 days
thereafter at Tenant's expense, by filing the bond required by law. All
work done or required to be done by the Tenant shall be done with union
labor and union made materials only and shall comply in all respects and at
all times with the rules and regulations of all municipal or other
authorities having jurisdiction thereof. Asbestos encapsulation, removal or
other treatment, respecting asbestos in the confines of the demised
premises, as may be required by law, shall at all times be at Tenant's sole
cost and expense, in the manner as approved by Landlord.
6. All fixtures, equipment, improvements made and appurtenances attached to or
built into the space or premises at the commencement of or during the term,
whether by the Landlord at its
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own expense or at the expense of the Tenant, or by the Tenant, shall be and
remain part of the premises and shall not be removed by the Tenant at any
time unless otherwise expressly provided in this Lease. All electric,
plumbing, heating, sprinkling, telephone, telegraph, communication and
radio systems, fixtures and outlets, partitions, railings, gates, doors,
vaults, paneling, molding, shelving, radiator enclosures, corks, rubber,
linoleum and composition floors, ventilating, silencing, air conditioning
and cooling equipment shall be deemed to be included in such fixtures,
equipment, improvements and appurtenances. Where not built into the space
or premises and if furnished by or at the expense of the Tenant, all
removable electric fixtures, carpets, wind deflectors, electric fans, water
coolers, furniture, trade fixtures and business equipment shall not be
deemed to be included in such fixtures, equipment, improvements and
appurtenances, and may be removed by the Tenant upon condition that such
removal does not render any damage to the building or premises and upon
condition also that in the event of any damage the cost of repairing same
shall be paid by the Tenant. All the outside walls of the premises,
including corridor walls and the outside entrance doors to the premises,
any balconies, terraces or roofs adjacent to the premises, and any space in
the premises used for shafts, stacks, pipes, conduits, ducts or other
building facilities and systems and the use thereof, as well as access
thereto in and through the premises for the purpose of operation,
maintenance, decoration and repair, are expressly reserved to the Landlord
and the Landlord does not convey any rights to the Tenant therein.
7. Tenant shall take good care of the premises and fixtures therein and,
subject to the provisions of paragraph 5 hereof shall make, as and when
needed, as a result of misuse or neglect by Tenant or Tenant's servants,
employees, agents, visitors, licensees, contractors, guests or invitees all
repairs in and about the demised premises necessary to preserve them in
good order and condition, which repairs shall be in quality and class equal
to the original work. However, Landlord may repair, at the expense of
Tenant, all damage or injury to the demised premises or to the building or
to its fixtures, appurtenances or equipment, done or caused by Tenant or
Tenant's servants, employees, agents, visitors, licensees, contractors,
guests or
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invitees, or caused by moving property of Tenant in or out of the building,
or by installation or removal of furniture or other property, or resulting
from fire, air-conditioning unit or system short circuits, overflow or
leakage of water, steam, illuminating gas, sewer gas, sewage or odors, or
by frost, or by bursting or leaking of pipes or plumbing works, or gas, or
from any other cause, due to the carelessness, negligence, or improper
conduct of Tenant, or Tenant's servants, employees, agents, visitors,
licensees, contractors, guests or invitees. Except as provided in paragraph
13 hereof, there shall be no allowance to Tenant for a diminution of rental
value, and no liability on the part of Landlord by reason of inconvenience,
annoyance or injury to person(s), property or business arising from the
making of any repairs, alterations, additions or improvements in or to any
portion of the building or the premises or in or to the fixtures,
appurtenances or equipment, nor shall there be any liability upon the
Landlord for failure to make any repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises
or in or to the fixtures, appurtenances or equipment. The Tenant shall and
does hereby indemnify and hold the Landlord harmless and free from all
liability for all injuries suffered by any person(s), and for damages
sustained to property, and for any monies paid out by Landlord in
settlement of any claims or judgements resulting from such damages or
injuries, as well as for all expenses and attorney's fees incurred by
Landlord in connection therewith.
8. Tenant will not clean, nor require, permit, suffer or allow any window in
the premises to be cleaned, from the outside in violation of Section 202 of
the Labor Law or of the rules of the Board of Standards and Appeals, or of
any other board or body having or asserting jurisdiction.
9. REQUIREMENTS OF LAW. Tenant, at Tenant's expense, shall comply with all
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laws, orders and regulations of federal, state, county and municipal
authorities, and with any direction of any public officer or officers,
pursuant to law, which shall impose any duty upon Landlord or Tenant
arising out of the Tenant's use or occupancy of the demised premises, and
shall not do or permit to be done, any act or thing upon said premises,
which will
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invalidate or be in conflict with fire insurance policies covering the
building, fixtures and property therein, and shall not do or permit to be
done any act or thing upon said premises which shall or might subject the
Landlord to any liability or responsibility for injury to any person or
persons or to any property by reason of any business or operation being
carried on upon said premises; and shall comply with all rules, orders,
regulations or requirements of the New York Board of Fire Underwriters, or
any other similar body and shall not do or permit anything to be done in or
upon said premises, or bring or keep anything therein, which shall increase
the rate of fire insurance on the building or on property located therein.
If by reason of failure of Tenant to comply with the provisions hereof, or
if by reason of the nature of the Tenant's occupancy, the fire insurance
rate shall at any time be higher than it otherwise would be, then Tenant
shall reimburse Landlord as additional rent hereunder, for that part of all
fire insurance premiums thereafter paid by Landlord, which shall have been
charged because of such violation or because of such occupancy by Tenant,
and shall make such reimbursement upon the first day of the month following
such outlay by Landlord. In any action or proceeding wherein Landlord and
Tenant are parties, a schedule or "make up" of rate for the building or the
premises issued by the New York Fire Insurance Exchange or other body
making fire insurance rates for said premises, shall be conclusive evidence
of the facts therein stated and of the several items and charges in the
fire insurance rate then applicable to said premises.
10. SUBORDINATION. This Lease is and shall remain subject and subordinate to
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all ground or underlying leases, leasehold mortgages, and mortgages and
building loan mortgages which may now or hereafter affect the real property
of which the demised premises form a part and each and every of the
advances which have heretofore been made or which may hereafter be made
thereunder, and to all renewals, modifications, consolidations,
replacements and extensions thereof. In confirmation of such subordination,
Tenant shall execute promptly any instruments or certificate that Landlord
may request. Tenant hereby irrevocably constitutes and appoints Landlord
the Tenant's attorney-in-fact to execute any such
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instrument or certificate for and on behalf of Tenant. This clause shall,
nevertheless, be self-operative.
11. RULES AND REGULATIONS. Tenant and Tenant's agents, employees, visitors,
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licensees, contractors, guests or invitees, shall faithfully comply with
the Rules and Regulations set forth on the back cover of this Lease, and
with such further reasonable Rules and Regulations as Landlord at any time
may make and communicate to Tenant, which, in the Landlord's judgment,
shall be necessary 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, its equipment, or the more useful occupancy or
comfort of the Tenants and others in the building. Landlord shall not be
liable to Tenant for the violation of any said Rules and Regulations, or
the breach of any covenant or condition in any lease by any other tenant in
the building.
12. Landlord or Landlord's agents shall not be liable for any damage to
property entrusted to employees of the building nor for the loss of any
property by theft or otherwise. Landlord or Landlord's agents shall not be
liable for any injury or damage to persons or property resulting from
falling plaster, steam, gas, electricity, water, rain or snow which may
leak from any part of the building or from the pipes, appliances or
plumbing works of the same, or from the street or sub-surface, or from any
other place, or by dampness or any other cause of whatsoever nature, unless
caused by or due to the negligence of Landlord; nor shall Landlord be
liable for any such damage caused by other tenants or persons in the
building, or for interference with the light or other incorporeal
hereditaments, or caused by operations in construction of any public or
quasi public work: nor shall Landlord be liable for any latent defect in
the building. Tenant shall reimburse Landlord as additional rent for all
expenses, damages or fines incurred or suffered by Landlord by reason of
any breach, violation or non-performance of any covenant or provision of
this Lease by Tenant, or Tenant's servants, employees, agents, visitors,
licenses, contractors, guests or invitees, or by reason of damage to person
or property caused by moving property in or out of the building, or by the
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installation or removal of furniture or other property of or for the
Tenant, or by reason of or arising out of the occupancy or use by Tenant of
the premises or of the building, or from any other cause due to the
carelessness, negligence or improper conduct of the Tenants or the Tenant's
servants, employees, agents, visitors, licensees, contractors, guests or
invitees.
13. If the demised premises shall be partially damaged by fire or other cause
without the fault or neglect of Tenant, Tenant's servants, employees,
agents, visitors, licensees, contractors, guests or invitees, the damages
shall be repaired by and at the expense of Landlord and the rent and
additional rent until such repairs shall be made shall be apportioned
according to that part of the premises which is usable by Tenant. No
penalty shall accrue for reasonable delay which may arise by reason of
adjustment of fire insurance on the part of Landlord or Tenant, and for
reasonable delay on account of "labor troubles," or any other cause beyond
Landlord's control. But if the demised premises are totally damaged or are
rendered wholly untenantable by fire or other cause, and the Landlord shall
decide not to rebuild the same, or if the building of which the demised
premises are a part shall be so damaged that Landlord shall decide to
demolish it or to rebuild it, then or in any of such events Landlord may,
within ninety (90) days after such fire or other cause, give Tenant a
notice in writing of such decision, and thereupon the term of this Lease
shall expire by lapse of time upon the third day after such notice is
given, and Tenant shall vacate the demised premises and surrender the same
to Landlord.
14. If the entire land and building of which the demised premises are a part,
shall be taken or condemned by any competent authority for any public or
quasi public use or purpose, then and in that event, the term of this Lease
shall cease and terminate from the date when the possession thereof shall
be required for such use or purpose. If any part of the land or the
building of which the demised premises are a part or any part of the
demised premises shall be so acquired or condemned, then and in that event,
the term of this Lease, at the option of the Landlord, on ten (10) days
notice by Landlord to Tenant, shall cease and terminate from the date when
possession of the part so taken shall be required for such use or purpose.
In
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the event that Landlord shall not elect to terminate this Lease and part of
the demised premises shall be so taken or condemned, the annual rental,
additional rent and other charges, shall be apportioned from the date
thereof. In no event, under any of the circumstances described herein,
shall Tenant have any claim for the value of any part of the unexpired term
of the within Lease or any portion of the demised premises so taken or
condemned and shall not share in any award that may be made to Landlord or
others.
15. As long as Tenant is not in default under any of the covenants of this
Lease, Landlord shall, if and insofar as the existing facilities provide,
at Landlord's expense: (a) run elevators on business days from 8 A.M. to 6
P.M. and in addition on Saturdays from 8 A.M. to 1 P.M. and also provide
one elevator which will be subject to call during all other hours on
business days, Saturdays, Sundays and holidays: (b) furnish on business
days from 8 A.M. to 6 P.M. ____________________ heat to warm the demised
premises when and as required by law: (c) cause to be kept clean the halls,
corridors and public portions of the building, which are used in common by
all tenants. Tenant shall, at Tenant's expense, keep the demised premises
clean and in order, to the satisfaction of Landlord, and remove its own
rubbish. Landlord shall have the sole right to designate and appoint the
person or concern to be employed, at Tenant's expense, for the removal of
Tenant's refuse and rubbish from the building. Landlord reserves the right
to stop service of the heat, elevator, air conditioning, cooling, plumbing
and electric systems, when necessary by reason of accident, or for repairs,
alterations or improvements, including conversion of each and any of the
elevators from manual to automatic, in the judgement of Landlord desirable
or necessary to be made, until such repairs, alterations or improvements
shall have been completed, and shall further have no responsibility or
liability for failure to supply heat, elevator, plumbing, air conditioning,
cooling and electric service, when prevented from so doing by strikes or
accidents or by any cause beyond Landlord's reasonable control, or by
orders or regulations of any federal, state, county or municipal authority
or failure of coal, oil or other suitable fuel supply, or inability by
exercise of reasonable diligence to obtain coal, oil or other suitable
fuel. It is expressly
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understood and agreed that any covenants on Landlord's part to furnish any
service pursuant to any of the terms or provisions of this Lease or to
perform any act or thing for the benefit of Tenant shall not be deemed
breached if Landlord is unable to perform the same by virtue of a strike or
labor trouble or any other cause whatsoever beyond Landlord's control and
Tenant agrees that there shall be no abasement or reduction of rent in the
event that any of said systems or service should fail to function for the
reasons above set forth.
16. WATER. Landlord shall have the right to install a separate water meter or
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meters for the demised premises or any part thereof and Tenant shall pay
the cost therefor, and if so installed, Tenant shall keep same in repair
and pay the charges made by the municipality for or in respect of the
consumption of water together with sewer rental charges based thereon as
and when billed therefor. If the building or any part thereof be supplied
with water through a meter or meters, the Tenant shall pay to the Landlord,
as and when billed therefor, the Tenant's proportionate part of all such
charges together with sewer rental based on such meter charges, which
amount shall be determined by multiplying the percentage factor set forth
in paragraph 33(b) by the total of the water bills and sewer charges
rendered by the municipality or other public authority from time to time.
All water and sewer rental bills submitted by any public authority shall be
conclusive evidence of the amount due. All payments required to be made by
the Tenant under this paragraph shall be deemed additional rent.
17. ELECTRIC CURRENT. Landlord shall furnish Tenant with electric current
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(subject to discontinuance as provided herein), at no additional charge
except as may be hereinafter provided in subparagraph (a) hereof and
paragraph 33(d), during business hours on business days, consistent with
the normal purposes for which the demised premises have been leased to
Tenant, subject to all the provisions as may be herein contained.
(a) In the event there is an increase or decrease, as the case
may be, in the rate schedule or rates for the purchase of electric current
or electricity, including demand
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or energy charges, fuel adjustment rates, service charges or sales taxes,
hereinafter collectively referred to as "electric consumption and demand
charges," from the public utility or other supplier of electricity to the
Landlord, from and after the date hereof, such increase or decrease shall
at Landlord's option, be added to and made a part of, or subtracted from
the annual rental provided for in this Lease, and if this Lease has not yet
commenced, then such increase or decrease shall be added to and made a part
of, or subtracted from the annual rental upon the commencement of the
Lease. The amount of such increase or decrease shall be computed by:
ascertaining the electric consumption and demand charges for the entire
building for the 12 months immediately preceding the effective date of the
increase or decrease; then ascertaining such electric consumption and
demand charges based upon the new rates and charges; then computing the
percentage of increase or decrease, as the case may be, and multiplying
such percentage of increase or decrease by the difference between the
annual rental and the amount set forth in subdivision (c) below.
(b) Tenant shall make no changes in or additions to the
electrical system, wiring, conduits, switches, fixtures, outlets or any
other electrical equipment in the building or demised premises during the
term of this Lease and any extensions or renewals thereof without first
obtaining the written consent of the Landlord thereto. Tenant shall not,
during the term of this Lease, connect to the risers, feeders, outlets,
base receptacles, wiring or installations constituting Landlord's
electrical distribution system, any electrical machinery, electrical
equipment, electrical computers or any other office or electrical
appliances without first obtaining the written consent of the Landlord
thereto. Tenant further agrees not to permit, at any time during the term
of this Lease, its electrical consumption to overtax the capacity of
Landlord's existing electrical distribution system.
(c) The Landlord may discontinue the supply of electric current
to the Tenant, at any time, notwithstanding any contrary provisions of this
Lease, upon giving Tenant thirty (30) days prior written notice of
Landlord's intention so to do and thereupon Tenant may contract or
otherwise arrange with any person, firm or corporation for the
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purchase and supply of such electric current, all without affecting or
changing the obligations of the Tenant under this Lease, provided, however,
that in the event of the discontinuance of the electric current by the
Landlord, the annual rental shall be reduced to the sum of $339,613.00 and
Tenant shall have no further rights under this Lease with respect thereto.
In the event of such discontinuance of electric current, Tenant shall have
no right to use or utilize Landlord's electrical distribution system,
including its risers, feeders, wiring or installations for the supply of
Tenant's electric current. Tenant may install, at its own cost and expense,
any risers, feeders, wiring or installations to enable it to obtain
electric current, subject, however, to there being available space, areas
and facilities in the building for the inclusion and insertion of such
risers, feeders, wiring and installations, of which availability Landlord
shall be the sole judge; provided that same shall not cause damage or
injury to the building or the demised premises, or cause or create a
dangerous or hazardous condition, or interfere with or disturb other
tenants, or overtax the capacity of Landlord's existing electrical
distribution system, and provided further that any such work will at all
times comply with the laws, rule and regulations of all governmental
bureaus, agencies and other subdivisions having jurisdiction over the
demised premises. The aforesaid risers, feeders, wiring and installations
to be installed by Tenant shall, at all times, be and remain the property
of Landlord. "Notwithstanding anything to the contrary contained herein,
Landlord agrees it will not discontinue the supply of electric current to
Tenant unless, at the same time, Landlord disconnects electric to all
tenants above the ground floor."
(d) The Landlord agrees to supply electric current to the Tenant
in the manner as herein set forth, to the extent that the quality,
character and quantity of the supply of electric current shall be available
to the Landlord from the public utility company or other supplier supplying
the same and the Landlord and Tenant further agree that Landlord shall not
be liable to the Tenant for any loss, damage or expense resulting from
change in the quality, character or quantity or due to the cessation or
interruption of said supply without any fault on the part of the Landlord,
or for Landlord's failure to supply such electric current
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when prevented from so doing by strikes, accidents, repairs, alterations,
improvements or other causes beyond Landlord's control or by orders or laws
of any federal, state, county or municipal authorities, and there shall be
no abatement of rent upon the happening and during the period of such event
or events.
18. The Landlord has installed within the building of which the demised
premises are a part, machinery, appliances, equipment and appurtenances for
the operation and maintenance of a modern peripheral air-conditioning
system which is capable, during the summer time, when the outside
temperature is 95 degrees, of maintaining inside the building a temperature
of approximately 10 degrees less and a proportionately less difference of
temperature between the inside and outside, as the outside temperature
falls to 75 degrees Fahrenheit. The Landlord has provided main cooling
system units at the windows which service the peripheral area and has
installed two or more main ducts and booster units on all floors of the
building as a part of the air-conditioning system.
(a) It is expressly understood by the Tenant that in order for
the air conditioning system to function properly, the Tenant is obliged to,
and the Tenant agrees to keep all windows in the premises closed. Tenant
acknowledges that the air-conditioning system will not function properly if
the demised premises are occupied by more than an average of one person for
each 100 sq. ft., or if Tenant installs or operates lighting loads in
excess of 3 1/2, xxxxx per sq. ft., or if Tenant installs and operates
electrical equipment which gives off heat that cannot be adequately
absorbed by Landlord's existing air-conditioning system in the demised
premises.
(b) Subject always to events and causes, physical, mechanical
and otherwise, beyond the reasonable control of the Landlord, for the
failure of which the Landlord shall not be liable in any event whatever,
the Landlord will service and maintain said air-conditioning system in such
matter as to provide air-conditioning for the premises on
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business days generally during the hours of 8 A.M. to 6 P.M. during the
months of June, July, August and September, when required, consistent with
the provisions hereof.
(c) Any damage caused to the appliances, equipment or
appurtenances as a result of the negligence of or the careless operation by
the Tenant or the agents, servants, employees, contractors, visitors,
guests, licensees or invitees of the Tenant, shall be repaired by the
Landlord at the cost and expense of the Tenant, which expense shall
constitute additional rent
19. (a) ACCESS TO PREMISES. Tenant shall permit Landlord to erect, use and
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maintain, pipes and conduits in and through the demised premises.
Landlord's agents shall have the right to enter the demised premises at all
time to examine same, to show them to prospective purchasers or lessees of
the building, and to make such decorations, repairs, alterations,
improvements or additions as Landlord may deem necessary or desirable
either to the building or to the demised premises and Landlord shall be
allowed to take all material into and upon said premises that may be
required therefor without the same constituting an eviction of Tenant in
whole or in part and the rent reserved shall in no wise xxxxx while said
decorations, repairs, alterations, improvements or additions are being
made, by reason of loss or interruption of the business of Tenant, because
of the prosecution of any such work or otherwise.
(b) The Tenant shall give prompt notice to the Landlord of any
fire, accident to or defective condition in any part of the demised
premises, including but not limited to the sanitary, electrical, heating,
air conditioning, cooling and other systems located in, or passing through
the premises, and the damage or defective condition shall be remedied by
the Landlord with due diligence, but if such damage or defective condition
was caused by the Tenant or if the system was installed for the particular
use of the Tenant and the damage or defective condition was not caused by
the negligence of the Landlord, the cost of the remedy thereof shall be
paid by the Tenant.
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(c) During the six months prior to the expiration of the term of
this Lease, Landlord may exhibit the premises to prospective tenants at all
reasonable hours.
(d) If, during the last month of the Term, Tenant shall have
removed all or substantially all of Tenant's property from the premises,
Landlord may immediately enter and alter, renovate and decorate the
premises or any part thereof without affecting this Lease and without
liability to Tenant for an abatement of rent or other compensation.
(e) Landlord may permit access to the premises without incurring
liability to the Tenant, whether or not the Tenant shall be present, upon
demand of any receiver, trustee, assignee for the benefit of creditors,
sheriff, marshal, court officer or government official entitled to, or
reasonably purporting to be entitled to such access for the purpose of
taking possession of or removing Tenant's property or for any other lawful
purpose. This provision and any action by the Landlord hereunder shall not
be deemed a recognition by Landlord that the person or official making such
demand has any right or interest in or to this Lease or on or to the
premises.
(f) Landlord shall have the right to change the arrangement and
location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other public parts of the building, and after
reasonable notice, to change the name, number or designation by which the
building is commonly known. Nothing herein contained, however, shall be
deemed or construed to impose upon Landlord any obligation, responsibility
or liability whatsoever for the care, supervision or repair of the building
or any part thereof, unless herein otherwise provided.
(g) In the event of a refusal by the Tenant to permit an entry
upon the premises as in this paragraph provided, the Landlord and the
Landlord's agents may forcibly enter the same nevertheless without
incurring any liability by reason thereof.
16
20. PLATE GLASS. The Tenant shall repair, at its own expense, all damage to or
-----------
destruction of any plate or window glass in the demised premises, and shall
maintain adequate plate glass insurance at its own expense for the benefit
of the Landlord. If the Tenant fails to repair the damage to any plate or
window glass in the demised premises, or fails or refuses to maintain
adequate plate glass insurance for the benefit of the Landlord, then the
Landlord may repair said damage or destruction or may insure the plate
glass and charge the cost of such repair or the cost of the premium for the
plate glass insurance to the Tenant and the amount thereof shall be deemed
to be additional rent.
21. VAULTS. No vaults, vault space or space not within the property line of the
------
building is leased hereunder, anything contained in or indicated on any
sketch, blueprint or plan, or anything elsewhere in this Lease to the
contrary notwithstanding. Landlord makes no representation as to the
location of the property line of the building. All vaults and vault space
and all space not within property line of the building, which Tenant may be
permitted to use and occupy, is to be used and occupied under a revocable
license, and if any such license be revoked, or if the amount of such space
be curtailed by any federal, state or municipal authority. Landlord shall
not be subject to any liability nor shall Tenant be entitled to any
compensation or diminution or abatement of rent nor shall such revocation
or curtailment be deemed a constructive or actual, total or partial
eviction.
17
22. CERTIFICATE OF OCCUPANCY. Tenant will not at any time use or occupy the
------------------------
premises in violation of the certificate of occupancy issued for the
building, and in the event that any department of the City or State of New
York shall hereafter at any time contend that the premises are used for a
purpose which is a violation of such certificate of occupancy, in that
event Tenant shall, upon 5 days written notice from Landlord, immediately
discontinue such use of said premises. Failure by Tenant to discontinue
such use after such notice shall he considered a default in the fulfillment
of a covenant of this Lease and Landlord shall have the right to terminate
this Lease immediately and in addition thereto shall have the right to
exercise any and all rights and privileges and remedies given to Landlord
pursuant to the provisions of paragraph 25 hereof. The statement in this
Lease of the nature of the business to be conducted by Tenant in the
demised premises shall not be deemed or construed to constitute a
representation or guaranty by Landlord that such business is lawful or
permissible under the certificate of occupancy issued for the building or
otherwise permitted by law.
23. SPRINKLERS. If the "sprinkler system" or any of its parts or appliances
----------
shall be damaged or not in proper working order by reason of any act or
omission of Tenant, Tenant shall forthwith at its own expense restore the
same to good working condition: and if the New York Board of Fire
Underwriters or the New York Fire Insurance Exchange or any bureau,
department or official of the state or city government, require or
recommend that any changes, modifications, alterations or additional
sprinkler heads or other equipment, be made or supplied by reason of
Tenant's business, or the location of partitions, trade fixtures, or other
contents of the demised premises, or if any such changes, modifications,
alterations, additional sprinkler heads or other equipment, become
necessary to prevent the imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate as fixed by
said Exchange, or by any fire insurance company, Tenant shall, at its
expense, promptly make and supply such changes, modifications, alterations,
additional sprinkler heads or other equipment.
18
24. BANKRUPTCY (a) PRIOR TO TERM. If at any time prior to the date herein fixed
----------------------------
as the commencement of the term of this Lease there shall be filed by or
against Tenant in any court pursuant to any statute either of the United
States or of any State a petition in bankruptcy or insolvency, or for
reorganization, or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, or if Tenant makes an assignment for the
benefit of creditors, or petitions for or enters into an arrangement, this
Lease shall at the option of the Landlord, be cancelled and terminated in
which event neither Tenant nor any person claiming through or under Tenant
by virtue of any statute or order of any court shall be entitled to
possession of the demised premises and Landlord, in addition to the other
rights and remedies given by (c) hereof or by virtue of any other provision
herein or elsewhere in this Lease contained, or by virtue of any statute or
rule of law, may retain as liquidated damages any rent, security, deposit
or monies received by it from Tenant or others in behalf of Tenant.
(b) DURING TERM. If at the date fixed as the commencement of the
-----------
term of this Lease or if at any time during the term hereof, there shall be
filed by or against Tenant in any court pursuant to any statute either of
the United States or of any State a petition in bankruptcy or insolvency or
for reorganization or for the appointment of a receiver or trustee of all
or a portion of Tenant's property, and within thirty (30) days thereafter
Tenant fails to secure a discharge thereof, or if Tenant makes an
assignment for the benefit of creditors or petitions for or enters into an
arrangement, this Lease, at the option of Landlord, exercised within a
reasonable time after notice of the happening of any one or more of such
events, may be cancelled and terminated in which event neither Tenant nor
any person claiming through or under Tenant by virtue of any statute or
order of any court shall be entitled to possession or to remain in
possession of the premises but shall forthwith quit and surrender the
premises and Landlord, in addition to the other rights and remedies
Landlord has by virtue of any other provision herein or elsewhere in this
Lease contained, or by virtue of any statute or rule of law, may retain as
liquidated damages, any rent, security, deposit or monies received from
Tenant or others in behalf of Tenant
19
(c) MEASURE OF DAMAGES. In the event of the termination of this
------------------
Lease pursuant to (a) or (b) hereof, Landlord shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be
entitled to recover from Tenant as and for liquidated damages an amount
equal to the difference between the rent reserved hereunder for the
unexpired portion of the term demised and the then fair and reasonable
rental value of the demised premises for the same period. In the
computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination and the fair and
reasonable rental value of the demised premises for the period for which
such installment was payable shall be discounted to the date of termination
at the rate of two per cent (2%) per annum. If such premises or any part
thereof be re-let by the Landlord for the unexpired term of this Lease, or
any part thereof, before presentation of proof of such liquidated damages
to any court, commission or tribunal, the amount of rent reserved upon such
re-letting shall be deemed prima facie to be the fair and reasonable rental
value for the part or the whole of the premises so re-let during the term
of the re-letting. Nothing herein contained shall limit or prejudice the
right of the Landlord to claim and obtain as liquidated damages by reason
of such termination, an amount equal to the maximum allowed by any statute
or rule of law in effect at such time and governing the proceedings in
which such damages are to be proved, whether or not such amount be greater,
equal to or less than the amount of the difference referred to above.
25. DEFAULT. (a) If Tenant shall make default in fulfilling any of the
-------
covenants of this Lease other than the covenants for the payment of rent or
additional rent and such default shall continue to exist for 10 days after
notice thereof by Landlord to Tenant, or if the premises become vacant or
deserted, Landlord may give Tenant 5 days notice of intention to end the
term of this Lease and thereupon, at the expiration of said 5 days the term
under this Lease shall expire as fully and completely as if that day were
the day herein definitely fixed for the expiration of the term, and Tenant
will then quit and surrender the premises to Landlord but Tenant shall
remain liable as hereinafter provided.
20
(b) If the second notice provided for in (a) hereof shall have
been given and the term shall expire as aforesaid: or (1) if Tenant shall
make default in the payment of the rent reserved herein or any item of
additional rent as and when such rent or additional rent becomes due and
payable or any part of either or in making any other payment herein
provided: or (2) if any execution or attachment shall be issued against
Tenant or any of Tenant's property whereupon the premises shall be taken or
occupied or attempted to be taken or occupied by someone other than Tenant:
or (3) if Tenant shall be in default with respect to any other lease
between Landlord and Tenant: or (4) if Tenant shall fail to move into or
take possession of the premises within fifteen (15) days after the
commencement of the term of this Lease, then, and in any of such events
Landlord may without notice, re-enter the premises either by force or
otherwise, and dispossess Tenant or the legal representatives of Tenant or
other occupant of the premises, by summary proceeding or otherwise, and
remove their effects and hold the premises as if this Lease had not been
made and Tenant hereby waives any notice of intention to re-enter or to
institute legal proceedings to that end. If Tenant shall be in default
hereunder prior to the date fixed as the commencement of any renewal or
extension of this Lease then any renewal, extension or other lease shall,
at Landlord's sole option, be cancelled and terminated.
(c) REMEDIES OF LANDLORD. In case of any such default, re-entry,
--------------------
expiration or dispossess by summary proceedings or otherwise, as provided
above: (1) the rent shall become due thereupon and be paid up to the time
thereof together with such expenses as Landlord may incur for legal
expenses, attorneys' fees, brokerage, and putting the premises in good
order and in preparing the same for re-rental: (2) Landlord may re-let the
premises or any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord's option be less than
or exceed the period which would otherwise have constituted the balance of
the term of this Lease and may grant concessions or free rent: (3) Tenant
or the legal representatives of Tenant shall also pay Landlord as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants
21
herein contained, any deficiency between hereby reserved and covenanted to
be paid and the net amount, if any, of the rents collected on account of
the leasing of the premises for each month of the period which would
otherwise have constituted the balance of the term of this Lease. In
computing such liquidated damages there shall be added to the said
deficiency such expenses as Landlord may incur in connection with re-
letting, such as legal expenses, attorneys' fees, brokerage and for keeping
the premises in good order or for preparing the same for re-letting. Any
such liquidated damages shall be paid in monthly installments by Tenant on
the rent day specified in this Lease and any suit brought to collect the
amount of the deficiency for any month shall not prejudice in any way the
rights of Landlord to collect the deficiency for any subsequent month by a
similar proceeding. Landlord, at its option, may make such alterations and
decorations in the premises as Landlord in its sole judgment considers
advisable and necessary for the purpose of ret-letting the premises and the
making of such alterations and decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Landlord
shall in no event be liable in any way whatsoever for failure to re-let the
premises, or in the event that the premises are re-let, for failure to
collect the rent thereof under such re-letting. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof,
Landlord shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if re-entry, summary proceedings and
other remedies were not herein provided for. The mention in this Lease of
any particular remedy, shall not preclude Landlord from using any other
remedy, in law or in equity.
(d) WAIVER OF REDEMPTION. Tenant for itself and on behalf of any
--------------------
and all persons or parties claiming through or under the Tenant, including
creditors, hereby expressly waives any and all rights of redemption granted
by or under any present or future laws in the event of Tenant being evicted
or dispossessed for any cause, or in the event of Landlord obtaining
possession of the demised premises by reason of the violation by Tenant of
any of the covenants and conditions of this Lease or otherwise.
22
26. FEES AND EXPENSES. If Tenant shall default in the performance of any
------------------
covenant, term or condition on Tenant's part to be performed as in this
Lease contained, Landlord may immediately, or at any time thereafter,
without notice, perform the same for the account of Tenant. If Landlord at
any time is compelled to pay or erects to pay any sum of money, or do any
act which will require the payment of any sum of money, by reason of the
failure of Tenant to comply with any provision hereof, or if Landlord is
compelled to or does incur any expense including reasonable attorneys'
fees, instituting, prosecuting or defending any action or proceeding,
whether instituted by Landlord or Tenant, by reason of any cause
whatsoever, including a default of Tenant hereunder, the sum or sums so
paid by Landlord with all interest, costs and damages, shall be deemed to
be additional rent hereunder and shall be due from Tenant to Landlord on
the first day of the month following the incurring of such respective
expenses or at the Landlord's option on the first day of any subsequent
month.
27. REPRESENTATIONS BY LANDLORD. Landlord or Landlord's agents have made no
---------------------------
representations or promises with respect to the said building or demised
premises except as herein expressly set forth. The taking possession of the
premises by Tenant shall be conclusive evidence, against Tenant, that the
demised premises and the building were in good and satisfactory condition
at the time such possession was taken. Tenant has inspected the building
and the demised premises and is thoroughly acquainted with their condition
and agrees to take same "as is."
28. END OF TERM. Upon the expiration or other termination of the term hereof,
-----------
Tenant shall quit and surrender to Landlord the premises, broom clean, in
good order and condition, ordinary wear excepted. Tenant shall remove all
property of Tenant as directed by Landlord. If the last day of the term of
this Lease or any renewal thereof falls on a Sunday or a legal holiday this
Lease shall expire at 12 noon on the business day immediately proceeding.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease. Any personal
property of the Tenant or other occupant which shall remain in the premises
or building after the expiration or other termination of the
23
term shall be deemed to have been abandoned by the Tenant or other occupant
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. If such personal
property or any part thereof shall be sold, the Landlord may receive and
retain the proceeds of such sale and apply the same, at its option, against
the expenses of the sale, the cost of moving and storage, any arrears of
rent or additional rent payable hereunder and any damages to which the
Landlord may be entitled under paragraph 25 hereof or pursuant to law. In
the event Landlord shall notify Tenant not later than ninety (90) days
after the expiration or other termination of this Lease, Tenant shall
restore the premises to the condition existing immediately prior to the
commencement of this Lease. Such restoration shall include demolition of
walls and other structures, construction and erection of walls, ceilings
and other structures, ceiling patching, duct-work, sprinkler-head changes,
electric work and such other alterations, decorations or repairs as may be
necessary to restore the premises to the condition existing immediately
prior to the commencement of this Lease.
29. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon Tenant
---------------
paying the rent and additional rent and performing all the covenants and
conditions aforesaid, on Tenant's part to be observed and performed, Tenant
shall and may peaceably and quietly have, hold and enjoy the demised
premises for the term aforesaid, subject, however, to the terms of this
Lease, the ground and underlying leases, if any, and mortgages hereinbefore
mentioned, except that the provisions hereof shall only apply so long as
Landlord or any successor to Landlord's interest is in possession and is
collecting rent from Tenant but not thereafter.
30. FAILURE TO GIVE POSSESSION. If the Landlord shall be unable to give
--------------------------
possession of the demised premises on the date of the commencement of the
term of this Lease, such failure to give possession shall not in any way
affect the obligations of the Tenant except that the rent and additional
rent, reserved and covenanted to be paid hereunder, shall not commence
until possession of the demised premises are made available for occupancy
by the
24
Tenant; nor shall such failure to give or afford possession be construed in
any way to extend the term of this Lease. No liability whatever shall arise
or accrue against the Landlord by reason of its failure to deliver
possession and the Tenant hereby releases and discharges the Landlord from
any claim for damage, loss or injury of every kind whatever, for such
period of time as Landlord may be unable to give or deliver possession of
the demised premises.
31. RECAPTURE OF CERTAIN ELEVATOR SPACE. The Landlord expressly reserves the
-----------------------------------
right, upon 10 days' written notice sent by ordinary mail, to recapture
that part or portion of the demised premises shown and designated on the
filed plans as a frame for an elevator on the Seventh Avenue side of the
building in which the demised premises are located, and that part or
portion of the demised premises shown or designated on the filed plans as a
frame for a passenger and freight elevator on the Broadway side of the
building in which the demised premises are located, without in any way
whatever affecting this Lease or the term thereof or the rent or additional
rent payable hereunder. The failure of the Tenant to comply with this
covenant and to surrender such part or portion of the demised premises
shall constitute a default.
32. NO WAIVER. The failure of Landlord to seek redress for violation of, or to
---------
insist upon the strict performance of any covenant or condition of this
Lease, or any of the Rules and Regulations set forth on the inside cover of
this Lease or hereafter adopted by Landlord, shall not prevent a subsequent
act, which would have originally constituted a violation, from having all
the force and effect of an original violation. The receipt by Landlord of
rent, additional rent or other charges, with or without knowledge of the
breach of any covenant or condition of this Lease or the Rules and
Regulations, shall not be deemed a waiver of such breach. The failure of
Landlord to enforce any of the covenants, conditions or Rules and
Regulations against Tenant or any other tenant in the building shall not be
deemed a waiver of any such covenants, conditions or Rules and Regulations.
No provision of this Lease or the Rules and Regulations shall be deemed to
have been waived by Landlord, unless such waiver be in writing signed by
Landlord. No payment by Tenant or receipt by Landlord of
25
any amount, whether designated by Tenant as rent, past rent, additional
rent, tax or operating expense escalation charges under paragraph 33 or
otherwise, shall be binding upon Landlord and Landlord may apply any such
amount, however designated by Tenant, to rent, past rent, additional rent,
tax or operating expense escalation charges under paragraph 33 or
otherwise, as Landlord in its sole discretion may determine; nor shall any
endorsement or statement on any check or any letter or direction by Tenant
or someone on its behalf, whether or not accompanying any check or payment
of any such items or charges, be deemed an accord and satisfaction or
binding upon Landlord, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of any such
items or charges or pursue any other remedy provided in this Lease. The
acceptance of payment of any such items or charges by Landlord from any
party other than Tenant, or if such payment is made on behalf of Tenant by
any party other than Tenant, shall not constitute a waiver of the
provisions of paragraph 3 respecting the assignment of the Lease or
subletting of the premises. If the term "Tenant" as used herein refers to
more than one person, party, corporation, company or other entity, Landlord
may treat any breach of this Lease by one of such parties as a breach by
all.
33. (a) LEASE YEAR AND TAX YEAR. For the purposes of this paragraph, the term
-----------------------
"tax year" shall mean each consecutive 12-month period commencing July 1st,
all or any part of which falls within the term of this Lease: the term
"lease year" shall mean each calendar year, all or any part of which falls
within the term of this Lease. If the first or the final tax year or lease
year shall contain less then 12 months, the additional rent payable under
subdivisions (b) and (c) of this paragraph with respect to such tax years
or (d) with respect to such lease years shall be pro-rated by multiplying
such amount by a fraction which has as a numerator the number of months in
such tax or lease year and a denominator of 12. In the event Landlord has
not computed the operating expenses for the next-to-last or last lease year
prior to the expiration date of this Lease, the additional rent payable
under subdivision (d) of this paragraph for such next-to-last or last lease
year shall be based upon either the operating
26
expenses for the last full lease year where such figures are available, or
Landlord, at its option, shall have the right to estimate the operating
expenses for such next-to-last or last lease year, and the additional rent
due under subdivision (d) of this paragraph for such next-to-last or last
lease year shall be due and payable by Tenant to Landlord sixty (60) days
prior to the expiration or earlier termination of this Lease.
(b) REAL ESTATE TAXES. In the event that the real estate taxes
-----------------
payable with respect to the building and the land on which it is located,
for any tax year in which this Lease shall be in effect (inclusive of any
certiorari fees paid or to be paid with respect thereto) shall be greater
than the amount of such taxes due and payable for the tax year next
preceding the term commencement date (sometimes hereinafter referred to as
"base tax year,") whether by reason of an increase in either the tax rate
or the assessed valuation, or by reason of the levy, assessment or
imposition of any tax on real estate as such, not now levied, assessed or
imposed, or for any other reason, Tenant shall pay to Landlord, when
billed, after the date on which the real estate taxes for such tax year
shall be fixed and determined, as additional rent for the lease year in
which such date occurs, an amount equal to 1.270% of the difference between
the amount of such tax or installment and the corresponding tax or
installment paid for the base tax year. The base tax year, as referred to
in this subparagraph, notwithstanding anything to the contrary otherwise
contained within, shall, for the purposes hereof, be deemed to mean the tax
year 1998/99.
(c) ASSESSMENTS. Tenant shall also pay to Landlord, within
-----------
thirty (30) days after the same shall be payable by Landlord and as
additional rent for the lease year in which the same shall be so payable,
an amount equal to 1.270 % of any assessment or installment thereof for
public betterments or improvements which may be levied upon the said land
and building.
See paragraph 44
27
(d) Landlord shall have the further right, at its option, to
xxxx Tenant monthly, in any lease year during the term of this Lease, for
1/12 of its share of the difference between the operating expenses for the
Tenant's base expense year and the previous calendar year's operating
expenses, plus the then current calendar year's estimated expense increase
which shall not be less than the difference between the preceding two
calendar years' operating expenses. At the end of each such lease year,
Landlord shall xxxx the Tenant for the difference between what Tenant paid
during such lease year and the amount computed to be due for such lease
year, which shall be paid when billed, or conversely, if Tenant's payment
exceeded the amount due for such lease year, Landlord shall then refund
such difference to Tenant. Landlord shall furnish Tenant with a brief
Summary Schedule in each lease year, which shall be deemed final and
conclusive if not contested by Tenant within 30 days after delivery thereof
to Tenant.
34. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between Landlord and
-----------------------
Tenant that the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matters whatsoever arising
out of or in any way connected with this Lease, any extension or renewal
thereof or the Tenant's use or occupancy of said premises.
35. SHIPPING RESTRICTION. Tenant shall not ship or receive goods, merchandise
--------------------
or inventory other than for sample purposes, or use the public corridors of
the building to ship or receive same and Tenant shall not at any time use
any hand trucks or other wheeled vehicles in the public or other corridors
of the building.
36. NOTICES, BILLS AND STATEMENTS. Except as otherwise in this Lease provided,
-----------------------------
any notice, xxxx or statement by either party to the other may be given or
sent and shall be deemed to have been duly given or sent if either
delivered personally or mailed in a post-paid envelope, addressed to the
Landlord at 0000 Xxxxxxxx, Xxx Xxxx, X.X., and to the Tenant at the
premises (or at the Tenant's present address as above set forth, if mailed
prior to the
28
Tenant's occupancy of the premises), or if any address for notices shall
have been truly changed as hereinafter provided, if mailed to the party at
such changed address. Either party may at any time change the address for
notices, bills or statement by delivering or mailing, as aforesaid, a
notice stating the change and setting forth the changed address.
Should the term "Tenant", as used in this Lease, refer to more
than one person, party, corporation, company or other entity, any notice,
xxxx or statement given or sent as aforesaid to any one of such entities
shall be deemed to have been duly given or sent to the Tenant.
37. SECURITY. The Tenant has deposited with the Landlord the sum of $35,375.00
--------
as security for the performance by the Tenant of the terms of this Lease.
The Landlord may use, apply, or retain the whole or any part of the
security so deposited to the extent required for the payment of any rent
and additional rent or other sum as to which the Tenant is in default in
respect of any of the terms of this Lease, including, but not limited to,
any damage or deficiency in the reletting of the demised premises, whether
such damages or deficiency accrued before or after summary proceedings or
other reentry by the Landlord, including, but not limited to, leasing
commissions incurred in connection with the leasing of the premises and
legal or other fees which Landlord may incur. In the event that the Tenant
shall comply with all of the terms of this Lease, the security shall be
returned to the Tenant after the date fixed as the end of the Lease and
after delivery of possession of the demised premises to the Landlord. In
the event of a sale or lease of the premises of which the demised premises
forms a part, the Landlord shall have the right to transfer the security to
the vendee or lessee and the Landlord shall thereupon be released from all
liability for the return of such security and the Tenant shall look solely
to the new, landlord for the return of such security. The Tenant shall not
assign or encumber the money deposited as security, and neither the
Landlord nor its successors or assigns shall be bound by any such
assignment or encumbrance.
29
38. MARGINAL NOTES. The marginal notes are inserted only as a matter of
--------------
convenience and for reference and in no way define, limit or describe the
scope or intent of this Lease nor in any way affect this Lease.
39. DEFINITION. (a) The term "Landlord" as used in this Lease means only the
----------
owner or the mortgagee in possession for the time being of the land and
building (or the owner of a lease of the building), so that in the event of
any sale or sales of said land and building or of said lease, or in the
event of a lease of said building, or other disposition of said land and
building or said leasehold, the said Landlord shall be and hereby is
entirely freed and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties
and the purchaser, at any such sale, or the said lessee of the building,
that the purchaser or the lessee of the building has assumed and agreed to
carry out any and all covenants and obligations of Landlord hereunder
(b) The term "business days" shall be construed to mean Monday
to Friday inclusive, excluding holidays.
(c) The words "re-enter" and "re-entry" as used in this Lease
are not restricted to their technical legal meaning.
(d) The term "gross square feet" if and when used herein,
shall be deemed to mean and include all the space taken up by and for
stairways, stairwells, lobbies, elevator shafts, lavatories, washrooms,
utilities, air-conditioning and mechanical equipment in the building,
whether or not all or any part of such space or equipment is located in the
demised premises, the determination of which, as computed by Landlord,
shall be final and conclusive.
(e) The term "additional rent" as used herein, shall be deemed
to mean any and all costs, charges, expenses, adjustments of rent and
electricity which Tenant
30
assumes, agrees or is obligated to pay to Landlord or others pursuant to
the provisions of this Lease or any other agreement, and in the event of
the non-payment thereof, Landlord shall have all of the rights and remedies
with respect thereto as provided for herein or by applicable law in case of
the non-payment of annual rent.
40. The covenants, conditions and agreements contained in this Lease shall bind
and inure to the benefit of Landlord and Tenant and their respective heirs,
distributees, executors, administrators, successors, and, except as
otherwise provided in this Lease, their assigns.
41. This Lease contains the entire agreement between the parties and may not be
modified or amended except by an agreement in writing signed by the parties
hereto.
42. The parties herein agree that NO BROKERS brought about or had any
connection with the procuring, execution and delivery of this Lease.
43. The riders annexed hereto as paragraphs 44 to 45 are incorporated herein
and made a part of this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed and sealed this lease as of the day and year
XXXXXXXXX ASSOCIATES "LANDLORD"
By _________________________
GENERAL PARTNER
____________________________
Tenant
By _________________________ (L.S.)
Title
____________________________ (L.S.)
WITNESS FOR TENANT:
____________________________
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ACKNOWLEDGEMENTS
PARTNERSHIP LANDLORD CORPORATE TENANT
STATE OF NEW YORK, ) STATE OF NEW YORK, )
COUNTY OF NEW YORK, ) SS.: COUNTY OF NEW YORK, ) SS.:
City of New York ) City of New York )
ON THIS DAY OF , 19 , ON THIS DAY OF , 19 , BEFORE ME
BEFORE ME PERSONALLY CAME PERSONALLY CAME TO
TO ME KNOWN AND KNOWN TO ME TO BE A MEMBER OF ME KNOWN, WHO BEING BY ME DULY SWORN, DID DEPOSE
THE FIRM OF XXXXXXXXX ASSOCIATES AND THE AND SAY THAT HE RESIDES IN
PERSON DESCRIBED IN AND WHO EXECUTED THE
FOREGOING INSTRUMENT IN THE NAME OF SAID FIRM, THAT HE IS THE
AND HE DULY ACKNOWLEDGED TO ME THAT HE OF
EXECUTED THE SAME FOR AND AS THE ACT AND DEED THE CORPORATION DESCRIBED IN AND WHICH EXECUTED
OF SAID FIRM. THE FOREGOING INSTRUMENT AS
TENANT: THAT HE KNOWS THE SEAL OF SAID CORPORATION:
THAT THE SEAL AFFIXED BY ORDER OF THE BOARD OF DIRECTORS
OF SAID CORPORATION, AND THAT HE SIGNED
HIS NAME THERETO BY LIKE ORDER.
-------------------------------------------------- ---------------------------------------------------------------
CO-PARTNERSHIP TENANT INDIVIDUAL TENANT
XXXXX XX XXX XXXX, XXXXX XX XXX XXXX,
XXXXXX OF NEW YORK, SS.: COUNTY OF NEW YORK, SS.:
City of New York City of New York
ON THIS DAY OF , 19 , ON THIS DAY OF , 19 , BEFORE ME
BEFORE ME PERSONALLY CAME PERSONALLY CAME TO
TO ME KNOWN AND KNOWN TO ME TO BE A MEMBER OF ME KNOWN AND KNOWN TO ME TO BE THE INDIVIDUAL
THE FIRM OF DESCRIBED IN AND WHO, AS TENANT, EXECUTED THE
FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT
AND THE PERSON DESCRIBED IN AND WHO EXECUTED
THE FOREGOING INSTRUMENT IN THE NAME OF SAID BE
FIRM, AND HE DULY ACKNOWLEDGED TO ME THAT HE
EXECUTED THE SAME FOR AND AS THE ACT AND DEED EXECUTED THE SAME.
OF SAID FIRM.
-------------------------------------------------- ---------------------------------------------------------------
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ADDITIONAL PARAGRAPHS attached to and forming a part of Lease dated May 12,
1998, between XXXXXXXXX ASSOCIATES and XXXX-XX KNITWEAR INC.
-----------------------------------------------------------
44. The term "Basic Rate" shall mean the rate of wages excluding all fringe
benefits and adjustments of every kind paid to building porters for Class A
Office Buildings as established by Local 32B-J, Building Service Employees
International Union AFL-CIO or their successors on December 31, 1998.
If, at any time (subsequent to the date of execution of this Lease) during the
term of this Lease, the Rate of Wages shall exceed the Basic Bate, the annual
rental payable under this Lease shall be increased by one cent ($.01) times the
Basic Rate Multiple per anum for each cent of fraction thereof by which the rate
of wages is greater than the Basic Rate. The "Basic Rate Multiple" shall mean
12,129.
In no event shall any rent adjustment result in a decrease in the annual rent
payable hereunder.
Any Amount due Landlord under the provisions of this paragraph shall be after
Landlord shall have submitted a xxxx and statement to Tenant, showing in
reasonable detail the computations of the amount due Landlord. At Lease
termination, other than by reason of Tenant's default, Landlord will submit a
pro-rated and apportioned invoice to Tenant for any increase in the Rate of
Wages above the Basic Rate for the period from January 1st of that year to the
date of Lease termination.
Notwithstanding anything to the contrary contained in this paragraph, increases
in annual rental calculated pursuant to this paragraph shall not commence until
June 1, 1999, and shall be payable by Tenant in equal monthly installments.
45. Notwithstanding anything to the contrary contained in paragraph 5 of this
Lease, Landlord and Tenant agree that the last sentence of paragraph 5 hereof
shall be deleted and replaced by the following:
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(a) "Asbestos encapsulation, removal or other treatment
respecting asbestos in the confines of the demised premise, as may be
required by law, shall, at all times, be at Landlord's cost and expense,
except if Tenant breaches subdivision (b) below, in which event, same shall
be at Tenant's cost and expense, and Landlord shall retain and hire the
contractor or contractors to render or perform such work.
(b) Tenant agrees not to make any alterations, changes, repairs,
decorations, additions or improvements, structural or non-structural, in
and to any mechanical, electrical, air conditioning, heating or plumbing
systems, which would require the dismantling or removal of the heating or
air conditioning ducts around the perimeter of the demised premises, known
by the trade name "Weathermaster", which shall at all times remain and
continue to remain in the condition as rented to Tenant, and Landlord shall
have the responsibility for maintaining same, except as same may be damaged
by Tenant."
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