EXECUTION COPY
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Exhibit 10.9
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") dated as of
the 1st day of July, 2000, between BET STUDIO LLC, a Delaware limited liability
company, having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
("Assignor"), and G-III LEATHER FASHIONS, INC., a New York corporation, having
an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Assignee").
W I T N E S S E T H:
WHEREAS, by Agreement of Lease (the "Lease") dated as of April 23, 1997
(the "Effective Date"), 000/000 Xxxxxxx Xxxxxx Associates, the
predecessor-in-interest to 000-000 Xxxxxxx Xxxxxx Limited Partnership
("Landlord"), did demise and let unto Assignor and Assignor did hire and take
from Landlord's predecessor-in-interest, the entire forty-fourth (44th) and a
portion of the forty-third (43rd) floors (collectively, the "Demised Premises"),
as more particularly described in the Lease, in the building known by the street
address 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; and
WHEREAS. Assignor desires to assign all of its right, title and interest
in, to and under the Lease to Assignee as of the Effective Date (as defined
herein); and
WHEREAS, Assignee desires to accept such assignment and assume all of
Assignor's rights, obligations and liabilities under the Lease accruing from and
after the Effective Date (collectively, the "Lease Obligations").
NOW, THEREFORE, in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Assignor's Representations and Warranties. Assignor hereby
represents and warrants to Assignee as follows:
(a) The copy of the Lease annexed hereto as Exhibit A is a true,
correct and complete copy of the Lease, including all amendments, supplements
and modifications thereto. The Lease is in full force and effect.
(b) No default or event that with the passage of time or notice
would constitute a default ("Default") on the part of Assignor exists under the
Lease in the performance of the terms, covenants and conditions of the Lease
required to be performed on the part of Assignor. No Default on the part of
Landlord exists under the Lease in the performance of the terms, covenants and
conditions of the Lease required to be performed on the part of Landlord.
(c) Assignor has not assigned, sublet, transferred, hypothecated or
otherwise disposed of or encumbered its interest in the Lease and/or the Demised
Premises, or any part thereof. Assignor is the holder of the tenant's interest
under the Lease, same is not subject to any lien or encumbrance, and no other
person, firm or entity has any interest as tenant, licensee or concessionaire in
or to the Lease or the Demised Premises.
(d) There are no notices or violation of law, ordinances, orders,
regulations or other governmental directives affecting the Demised Premises,
which violation remains uncured.
(e) No work has been performed, or caused to be performed, by
Assignor or any affiliate of Assignor at the Demised Premises which is not (i)
in accordance with Assignor's obligations under, or restrictions set forth in,
the Lease, or (ii) in compliance with all laws, ordinances, orders, regulations
or other governmental directives applicable to the Demised Premises. No work has
been performed, or caused to be performed, by Assignor or any affiliate of
Assignor at the Demised Premises which might give rise to mechanic's,
materialmen's or other liens against the Demised Premises.
(f) There are no brokerage commissions or finder's fees owed by
Assignor or any affiliate of Assignor with respect to the Lease or the Demised
Premises.
2. Assignment. Assignor hereby transfers, assigns and sets over to
Assignee, its successors and assigns, all of Assignor's right, title and
interest in, to and under the Lease from and after the Effective Date for all
the rest, residue and remainder of the term of the Lease to come thereafter (the
"Assignment").
3. Assumption. Assignee hereby accepts the Assignment and assumes
and agrees to be bound by and perform the Lease Obligations from and after the
Effective Date (the "Assumption").
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4. Condition of Demised Premises. Assignee agrees to accept the
Demised Premises in its "as is" condition on the Effective Date, except as
specifically set forth in this Agreement.
5. Indemnification. Assignor hereby agrees to indemnify, defend and
hold Assignee harmless from and against any and all liability, obligations,
losses, costs, claims, damages and expenses (including reasonable attorneys'
fees) arising from the breach of any of Assignor's representations and
warranties set forth in Paragraph 1 hereof.
6. Subordinate. This Agreement shall be subject and subordinate, at
all times, to the Lease and all of its provisions. In case of any conflict
between the provisions of the Lease and the provisions of this Agreement, the
provisions of the Lease shall prevail unaffected by this Agreement.
7. Assignor Remains Liable. Assignor agrees that this Agreement
shall not operate to release Assignor from any of its obligations or liabilities
under the Lease.
8. Use. Assignee covenants to use and occupy the Demised Premises in
accordance with the terms and conditions set forth in the Lease, as the same may
be amended from time to time.
9. Continuing Obligation to Obtain Landlord's Consent. Assignee
agrees that any other or further assignment of the Lease or any sublease of all
or any portion of the Demised Premises shall be made strictly in accordance with
the terms of the Lease, as the same may be amended from time to time.
10. Conditions to Effectiveness. This Agreement shall not be binding
on Assignor or Assignee, unless and until Landlord executes and delivers its
consent to this Agreement.
11. Payment of Sums Due Assignor. The parties hereto agree that any
sum which may be payable or returnable to Assignor by Landlord pursuant to the
Lease, which has not, as of the date hereof, been paid or returned to Assignor,
shall be paid or returned to Assignee.
12. Broker. Each party hereto covenants, warrants and represents to
the other party that it has had no dealings, conversations or negotiations with
any broker other than Newmark & Company Real Estate, Inc. concerning the
execution and delivery of this Agreement. Each party hereto agrees to defend,
indemnify and hold harmless the other party against and from any claims for any
brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, reasonable attorneys' fees and
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disbursements, arising out of a breach of its respective representations and
warranties contained in this Paragraph 11.
13. Miscellaneous. This Agreement may be executed in multiple
counterparts, all of which taken together constitute one and the same
instrument; may not be canceled, modified or amended except by written
instrument executed by all parties hereto; contains the entire agreement between
the parties hereto and shall apply to and bind the successors and assigns of the
respective parties. If any term or provision of this Agreement shall, to any
extent, be determined to be invalid or unenforceable, the remainder of this
Agreement shall not be affected and each term or provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law. This
Agreement shall be construed and enforced in accordance with the laws of the
State of New York without giving effect to principles of conflicts of law.
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the signature page follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
Assignor:
BET STUDIO LLC
By: Xxxxxx Xxxxxxxx
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Name: XXXXXX XXXXXXXX
Title: President
Assignee:
G-III LEATHER FASHIONS, INC.
By: Xxxxx X. Xxxxxx
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Name: XXXXX X. XXXXXX
Title: CFO
EXHIBIT A
Agreement of Lease
(Attached)
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Agreement of Lease, made as of this 23RD day of APRIL, 1997, between
000/000 XXXXXXX XXXXXX ASSOCIATES, a partnership having offices in care of
Helmsley-Spear, Inc., 000/000 XXXXXXX XXX. party of the first part, hereinafter
referred to as "Landlord" or "Lessor", and
BET STUDIO LLC, a domestic corporation having offices at New York
City, party of the second part, hereinafter referred to as "Tenant" or "Lessee".
Witnesseth: Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the space on the 43RD & 44TH FLOORS, as more particularly shown on the
plan annexed hereto and made a part hereof, 43-B & 44-01, in the building known
as 000 XXXXXXX XXXXXX in the Borough of Manhattan, City of New York, for the
term of 5YRS. 9 MOS (or until such term shall sooner cease and expire as
hereinafter provided) to commence on the 1ST day of MAY, 1997 and to end on the
31ST day of JANUARY, 2003, both dates inclusive, at an annual rent of
$122,160.00
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues public and private, at the time of
payment, in equal monthly installments of $10,180.00 in advance on the first day
of each month during said term, at the office of Landlord or such other place as
Landlord may designate, without any set off or deduction whatsoever, except that
Tenant shall pay the first monthly installment(s) on the execution hereof
(unless this lease be a renewal).
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
and agree as follows:
RENT
FIRST:-Tenant shall pay the rent and additional rent as above and as
hereinafter provided.
ADDITIONAL RENT
SECOND:-(a) Tenant shall pay to Landlord, as additional rent hereunder, in
advance, on the first day of each and every month during the term hereof, all
sums expended by Landlord and/or which become due to Landlord under this lease
and under any collateral agreements relating to the premises. Tenant's use and
occupancy thereof, the supplying by Landlord to Tenant of any services in
connection therewith, together with any fines or penalties imposed or assessed
by any governmental authority by reason of failure to comply with its
requirements.
(b) If Tenant shall default in the observance or performance of any term
or covenant on Tenant's part to be observed or performed under or by virtue of
any of the terms or provisions in any paragraph of this lease, Landlord may
immediately or at any time thereafter and without notice perform the same for
the account of Tenant, and if Landlord makes any expenditures or incurs any
obligations for the payment of money in connection therewith including, but not
limited to, attorneys' fees in instituting, prosecuting or defending any action
or proceeding, such sums paid or obligations incurred with interest and costs
shall be deemed to be additional rent hereunder.
(c) The receipt by Landlord at any time of any installment of the regular
stipulated rent hereunder or of any additional rent shall not be deemed to be a
waiver of any other additional rent then due. For the nonpayment of any
additional rent, Landlord shall have all the rights and remedies which it would
have in the case of a default in the payment of the regular stipulated rent
hereunder or any installment thereof.
RENT DUE UNDER OTHER LEASE AS ADDITIONAL RENT
THIRD:-In the event that, at the commencement of the term of this lease,
or thereafter, Tenant shall be in default in the payment of rent to Landlord
pursuant to the terms of another lease with Landlord or with Landlord's
predecessor in interest, Landlord may, at Landlord's option and without notice
to Tenant, add the amount of such arrearages to any monthly installment of rent
payable hereunder, and the same shall be payable to Landlord as additional rent.
USE
FOURTH:-Tenant shall use and occupy the demised premises for SHOWROOM,
OFFICE, DESIGN AT WHOLESALE AND NOT RETAIL OF ALL APPAREL AND ACCESSORIES.
and for no other purpose, Tenant shall not suffer or permit the demised premises
or any part thereof to be used by others for any purpose whatsoever, without the
prior written consent of Landlord in each instance.
REQUIREMENTS OF LAW
FIFTH:-Tenant at its sole expense shall comply with all 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 violation, order or duty upon Landlord or Tenant with respect to demised
premises, or the use or occupation thcreof. Tenant shall not do, or permit to be
done, any act or thing upon said premises which shall or might subject Landlord
to any liability or responsibility for injury to any person or persons or to
property by reason of any business or operation being carried on upon said
premises or for any other reason.
CERTIFICATE OF OCCUPANCY
SIXTH:-Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy or certificate of compliance issued
for the building of which the demised premises form a part, and in the event
that any department of the City or State of New York shall hereafter at any time
contend and/or declare by notice, violation, order or in any other manner
whatsoever that the premises hereby demised are used for a purpose which is a
violation of such certificate of occupancy. Tenant shall, upon five (5) days'
written notice from Landlord, immediately discontinue said use of such premises.
Failure by Tenant to discontinue such use after such notice shall be 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 by and pursuant to the provisions of Paragraph 40 hereof. The
statement in this lease of the nature of the business to be conducted by Tenant
in demised premises shall not be deemed or construed to constitute a
representation or guaranty by Landlord that such business may continue to be
conducted in the premises for the entire period of the lease or is lawful or
permissible under the certificate of occupancy in effect for the building of
which the demised premises form a part, or otherwise permitted by law. If
alterations or additions, including but not limited to a sprinkler system, are
needed to permit lawful conduct of Tenant's business or to comply with the
certificate of occupancy, the same shall be made by and at the sole expense of
Tenant.
NON-HAZARDOUS USES
SEVENTH:-Tenant shall not suffer any act to be done or any condition to
exist on the demised premises or any part thereof or any article to brought
thereon, which may be dangerous, unless safeguarded as required by law, or by
any insurance carrier having any interest in such conduct or condition or which
may, in law, constitute a nuisance, public or private, and as not to make void
or voidable any insurance applicable to the building, under penalty of damages
and forfeiture.
SAFETY PRECAUTIONS
EIGHTH:-Tenant shall not at any time allow smoking on any part of the
premises where stock is stored. Tenant shall store all silk and other textiles
in steel bins or shelving, the bottoms of which shall be at least six inches
above the floor, and the tops of which shall extend at least three inches and
shall have drip points so as to shed water from the goods. No shelving bins
shall be installed without Landlord's prior written consent. Tenant shall make
all floors water-tight by painting or covering them with linoleum or other
water-tight floor covering. Where cleaning fluid is used, it shall be
non-inflammable. Tenant shall use no cleaning fluid not approved in writing by
Landlord. Tenant will not permit the accumulation of waste or refuse matter on
the premises.
TENANT TO KEEP INSURANCE RATE LOW
NINTH:-Tenant will conduct its business in such a manner as to enable
Landlord or other tenants in the building to obtain the lowest possible
insurance rate upon the entire building in which the demised premises are
located, and will, at its sole expense, comply with all rules, orders,
regulations or requirements of all public liability, fire and insurance policies
in force at any time with respect to the demised premises, as well as 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, except as now or hereafter
permitted by the Fire Department, Board of Fire Underwriters, Fire Insurance
Rating Organization, or other authority having jurisdiction and then only in
such quantity and manner of storage as not to increase the rate for fire
insurance applicable to the building, or use the premises in a manner which
shall increase the rate of fire insurance on the building of which demised
premises form a part, or on property located therein, over that in effect prior
to this lease. If by reason of failure of Tenant to comply with the provisions
of this paragraph including, but not limited to, the mere use to which Tenant
puts the premises, the fire insurance rate shall at the beginning of this lease
or at any time thereafter be higher than it otherwise would be, then Tenant
shall reimburse 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 failure or use 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 demised 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. Tenant shall not bring or
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permit to be brought or kept in or on the demised premises, any inflammable,
combustible or explosive fluid, chemical, substance or material other than silk
or other textiles, or cause or permit any odors of cooking or other processes,
or any unusual or other objectionable odors to permeate from the demised
premises. That the premises are being used for the purpose set forth herein
shall not relieve Tenant from the foregoing duties, obligation and expenses.
ASSIGNMENT, MORTGAGE AND SUBLEASING
TENTH:-a Tenant shall not assign, mortgage or encumber this agreement nor
underlet the demised premises or any part thereof or permit the demised premises
or any part thereof to be occupied by anybody other than Tenant, without the
prior written consent of Landlord in each instance. The transfer of a majority
of the issued and outstanding capital stock of any corporate Lessee of this
lease or a majority of the total interest in any partnership Lessee, however
accomplished, and whether in a single transaction or in a 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 underlet or
occupied by anybody other than Tenant, Landlord may, after default by Tenant,
collect rent from the assignee, under-tenant or occupant, and apply the net
amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, under-tenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. The consent by Landlord to an assignment or
underletting shall not in any wise be construed to relieve Tenant from obtaining
the express consent in writing of Landlord to any further assignment or
underletting.
(b) If the demised premises shall be underlet in whole or in part by
Tenant or its heirs, executors, administrators, legal representatives,
successors or assigns. such party shall, within three (3) days of such
underletting, furnish Landlord with a duplicate original of such underlease and
shall, on demand of Landlord, supply Landlord within three (3) days of such
demand, a written list of all such under-tenants, the terms, including
expiration dates of their under-tenancies, the rents payable thereunder, and any
additional information requested by Landlord. This provision or compliance
therewith, however, shall in no event be construed to be a consent to any
underletting or a waiver of the covenant against underletting contained herein.
Non-compliance by Tenant with the provisions of this paragraph shall be deemed
to be a breach of this lease.
(c) Tenant assumes and shall be responsible for and liable to Landlord,
for all acts and omissions on the part of any present or future under-tenant,
their agents, employees, servants or licensees, and any breach or violation of
any of the terms, covenants, agreements, provisions, conditions and limitations
of this lease, whether by act or omission, by any under-tenant shall constitute
a breach or violation of this lease by Tenant.
WASTE
ELEVENTH:-Throughout the term of this lease, Tenant will take good care of
the demised premises and appurtenances and suffer no waste, damage,
disfigurement or injury thereto or any part thereof.
ALTERATIONS
TWELFTH:-(a) Tenant shall make no alterations, decorations, installations,
additions or improvements in or to the demised premises, including, but not
limited to, an air-conditioning or cooling system, unit or part thereof or other
apparatus of like or other nature, nor bring materials in connection therewith
on the demised premises, without Landlord's prior written consent, and then only
by contractors or mechanics approved by Landlord, and subject to plans and
specifications approved by Landlord. All such work, alterations, decorations,
installations, additions or improvements shall be done at Tenant's sole expense
and at such times and in such manner as Landlord may from time to time
designate. All alterations, decorations, installations, additions or
improvements upon demised premises, made by either party, including all
paneling, decorations, partitions, railings, mezzanine floors, galleries, steam,
water, and air conditioning systems and units, shelving, electric fixtures and
the like, shall, unless Landlord elects otherwise (which election shall be made
by giving a notice pursuant to the provisions hereof not less than thirty (30)
days prior to the expiration or other termination of this lease or any renewal
or extension thereof) become the property of Landlord, and shall remain upon,
and be surrendered with, said premises, as a part thereof, at the end of the
term or renewal term, as the case may be. In the event Landlord shall elect
otherwise, then such alterations, installations, additions or improvements made
by Tenant upon the demised premises as the Landlord shall select, shall be
removed by Tenant at Tenant's sole cost and expense. All alterations,
decorations, installation, additions or improvements installed by Tenant may be
used by Tenant without additional charge for such use, and without any right in
the Landlord to remove the same in the absence of any default under this lease
during the term hereof.
(b) Tenant, at its own expense, will promptly repair all damage and injury
resulting from such removal and restore the space theretofore occupied by such
fixtures and installations to good order and condition and to character and
appearance equal to that of the area adjacent thereto, in default of any of
which Landlord may at its option cause the same to be done at Tenant's expense.
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REPAIRS
THIRTEENTH:-Tenant shall take good care of the demised premises and the
fixtures and appurtenances therein, and at its sole cost and expense make all
repairs thereto as and when needed to preserve them in good working order and
condition. All damage or injury to the demised premises and to its fixtures.
appurtenances and equipment or to the building of which the same form a part or
to its fixtures. appurtenances and equipment caused by Tenant's moving property
in or out of the building or by installation or removal of furniture, fixtures
or other property, or resulting from fire, explosion, air-conditioning unit or
system, short circuits, flow or leakage of water, steam, illuminating gas, sewer
gas, sewerage or odors or by frost or by bursting or leaking of pipes or
plumbing works or gas, or from any other cause of any other kind or nature
whatsoever due to carelessness, omission, neglect, improper conduct or other
cause of Tenant, its servants, employees, agents, visitors or licensees shall be
repaired, restored or replaced promptly by Tenant at its sole cost and expense
to the satisfaction of Landlord. All aforesaid repairs, restorations and
replacements shall be in quality and class equal to the original work or
installations. If Tenant fails to make such repairs, restorations or
replacements within a reasonable time same may be made by Landlord at expense of
Tenant and collectible as additional rent.
LANDLORD'S LIABILITY, ALTERATIONS OR REPAIRS
FOURTEENTH:-(a) Except where otherwise provided in this lease. 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 business
arising from Landlord, Tenant or others making any repairs, alterations,
additions or improvements in or to any portion of the building or demised
premises, or in or to fixtures, appurtenances, or equipment thereof, and no
liability upon Landlord for failure of Landlord or others to make any repairs,
alterations, additions or improvements in or to any portion of the building or
of demised premises, or in or to the fixtures, appurtenances or equipment
thereof.
(b) Landlord reserves the right to stop service of the electric, water,
sprinkler, steam, air conditioning, elevator, heating and plumbing systems, when
necessary, by reason of accident, or emergency, or for repairs, alterations,
replacements or improvements, in the judgment of Landlord desirable or necessary
to be made, until said repairs, alterations, replacements or improvements shall
have been completed.
EMPLOYMENT OF UNION LABOR TO MAKE ALTERATIONS AND REPAIRS
FIFTEENTH:-Tenant agrees that whenever any alterations, additions,
improvements, changes or repairs to the said premises are consented to by
Landlord, or in the moving of merchandise, fixtures or equipment into the said
building, or moving the same therefrom, only such labor under agreement with the
Building Trades Employers' Association of New York City, or which shall not
cause strikes or concerted labor action by other employees of the building, and
which have the same or similar labor union affiliations as those employed by
Landlord or Landlord's contractors, shall be employed.
DISCHARGE OF LIENS, ETC.
SIXTEENTH:-(a) Any mechanic's lien filed against the demised premises, or
the building of which the same form a part, for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, shall be discharged
by Tenant within ten (10) days thereafter, by payment in full or at Tenant's
expense, by filing the bond required by law. If Tenant fails to so pay or file
any bond, Landlord may pay the amount of said lien or discharge the same by
deposit, or otherwise, billing Tenant for all expenses in connection therewith
as additional rent.
(b) Nothing in this lease contained shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied by
inference or otherwise, to any contractor, sub-contractor, laborer or
materialman for the performance of any labor or the furnishing of any materials
for any specific improvement, alteration to, or repair of the demised premises,
or any part thereof, or for the demolition or replacement of the demised
premises or any part thereof.
(c) Tenant agrees to obtain and deliver to Landlord, written and
unconditional waivers of liens (and agreement that its filed plans may be
replaced), for all plans, specifications and drawings for work or materials to
be furnished to Tenant at the premises, signed by all architects, engineers and
designers to become involved in such work for Tenant: with respect to
contractors, subcontractors, materialmen and laborers, and all work or materials
to be furnished to Tenant at the premises. Tenant agrees to obtain and deliver
to Landlord written and unconditional waiver of mechanics liens upon the
premises or the building after payments to the contractors, and subject to any
applicable provisions of the Lien Law.
SIGNS
SEVENTEENTH:-Tenant will not, without Landlord's written consent, place,
affix or paint any signs, awnings, projections or advertising material of any
kind upon the exterior of the premises or of the building, not upon the windows,
nor in any location that may be visible from any of the lobbies or passageways.
If Tenant shall cause or permit any sign or other object, similar or dissimilar,
to be placed on or affixed to any
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part of the building not inside the space specifically demised hereunder,
Landlord shall have the right, without notice or liability to Tenant, to remove
and dispose of the same and to make any repairs necessitated by such removal,
all at Tenant's sole expense and risk. Landlords expenses in so doing shall be
deemed additional rent hereunder and collectible as such.
MISCELLANEOUS PROHIBITED ACTIONS OF TENANT
EIGHTEENTH:-(a) Tenant will not cause or permit any connection to be made
to the wiring on the electrical panel boards of the building without the prior
written consent and supervision of Landlord.
(b) Tenant agrees that it will not drive nails in, drill in, disfigure or
deface any part of the building nor suffer the same to be done, nor cause or
permit the floors, walls, doors or ceilings of the demised premises to be
drilled, hammered, pounded or otherwise dealt with in a noisy or disturbing
manner at any time during customary business hours (i.e., between 9:00 A.M. and
5:00 P.M.) whether or not such activities are incidental to or part of work to
which Landlord has consented.
(c) Tenant shall not install any pressing equipment, whether connected to
Tenant's gas-fired boiler or to the building steam system, without first having
plans and specifications approved by Landlord.
The vacuum used by pressing machines for the drying of garments shall be
created by an electrically driven vacuum pump. Tenant shall not use any vacuum
created by the use of steam from a gas-fired boiler or from the building steam
system.
(d) Tenant shall not permit any connection to he made at the demised
premises with any high pressure steam lines, electric current lines or water
lines without Landlord's prior written consent.
(e) Tenant shall not make any electrical or plumbing installation without
Landlord's prior written consent. All water lines must be installed in red
brass.
(f) Window air-conditioning units shall in no event be installed without
Landlords' prior written approval or be mounted so as to extend outward beyond
the line of the window frame.
(g) Tenant shall install no linoleum, rubber, mastic or vinyl tile floor
covering, unless it is laid over a layer of felt, double cemented in the manner
approved by Landlord.
(h) Tenant shall not place a load upon any floor of the demised premises
exceeding the floor load per square foot area which such floor was designed to
carry and which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all safes which must be placed so as to distribute the
weight. Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient in Landlord's
judgment to absorb and prevent vibration, noise and annoyance. Tenant agrees
that upon the written request of Landlord, Tenant will, within fifteen (15) days
of the mailing of such request, provide rubber or other approved settings for
absorbing, preventing and decreasing noise and/or vibration from any or all
machines or machinery, such insulation or other devices for the prevention,
decrease or elimination of noise satisfactory to Landlord shall be made in such
manner and of such material as Landlord may direct. In the event that Tenant
fails to comply with the aforesaid request within the fifteen (15) days
aforementioned, Landlord may, at its option, by notice in writing to Tenant,
cause the term of this lease to expire. Landlord in such event shall have the
right to re-enter the premises by summary proceedings or otherwise without
liability. Landlord shall not give less than thirty (30) days' notice of its
election to terminate the lease as above provided. Landlord shall have the right
to enter the demised premises with workmen and materials and to insulate the
machinery as above provided, collecting from Tenant the cost of such work as
additional rent in the event that Tenant fails to comply with the written
request aforementioned after the expiration of fifteen (15) days from the
receipt thereof.
(i) Tenant shall not move any safe, heavy machinery, heavy equipment,
freight, bulky matter, or fixtures into or out of the building without
Landlord's prior written consent and the filing with Landlord of a Rigger's
Liability Insurance Certificate satisfactory of Landlord. If such safe,
machinery, equipment, freight, bulks matter or fixtures require special
handling, Tenant agrees to employ only persons holding a Master Rigger's License
to do said work, and that all work in connection therewith shall comply with the
Administrative Code of the City of New York.
(j) If the demised premises be or become infested with vermin, Tenant
shall, at Tenant's expense, cause the same to be exterminated from time to time
to the satisfaction of Landlord, and shall employ such exterminators and such
exterminating company or companies as shall be approved by Landlord.
5
(k) The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed or
constructed, and no sweepings, rubbish, rags, acids or other substances shall be
deposited therein.
(l) Tenant agrees to provide proper receptacles as called for by the Fire
Department, Board of Fire Underwriters, Fire Insurance Rating Organization or of
the authority having jurisdiction. Tenant hereby agrees to cause its rubbish or
waste to be disposed of at its own cost and expense, subject to all the rules
and regulations that from time to time may be made in connection therewith by
Landlord, including a regulation that Tenant shall use a single rubbish or waste
remover designated by Landlord for the removal of the rubbish or waste of the
tenants in the building. Tenant further agrees that it shall not at any time
store any of its rubbish or waste in the lobbies, foyers, passage-ways or other
spaces adjacent to the premises herein demised, nor shall Tenant place the
rubbish (which is to be taken by the waste remover) in the said areas prior to
5:00 P.M.
(m) If Tenant is a lessee of any store in said building, the said Tenant
hereby agrees to keep the sidewalk, entrance and passageways unencumbered and
unobstructed, and agrees, further, to remove all ice and snow from the sidewalks
immediately in front of the demised premises.
(n) Tenant will not suffer, permit or allow unusual or objectionable odors
to be produced upon or permeate from the demised premises.
WINDOW CLEANING
NINETEENTH:-Tenant will not clean, nor require, permit, suffer or allow
any window in the demised premises to be cleaned, from the outside in violation
of Section 202 of the Labor Law or of the rules of the Board of Standards and
Appeals, or of any other board or body having or asserting jurisdiction.
NOTICE OF DAMAGE TO PIPES, OF FIRE
TWENTIETH:-Tenant shall give prompt notice to Landlord of any accidents to
or defects in the pipes and apparatus in the building or of any fire that may
occur.
LANDLORD'S ACCESS TO PREMISES
TWENTY-FIRST:-Tenant shall permit Landlord to erect, use and maintain,
pipes and conduits in and through the demised premises. Landlord or Landlord's
agents shall have the right to enter the demised premises at all times to
examine the same, and 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, and Landlord and its
representatives shall be allowed to take and store 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, be reason of loss or interruption of business of Tenant, or
otherwise. During the six months prior to the expiration of the term of this
lease, or any renewal-term, Landlord may exhibit the premises to prospective
tenants or purchasers, and place upon said premises, or the exterior thereof the
usual notice "To Let" or "For Sale", which notices Tenant shall permit to remain
thereon without molestation. If, during the last month of the term, Tenant shall
have removed all or substantially all of Tenant's property therefrom, Landlord
may immediately enter and alter, renovate and redecorate the demised premises,
without elimination or abatement of rent, or incurring liability to Tenant for
any compensation, and such acts shall have no effect upon this lease. If Tenant
shall not be personally present to open and permit an entry into said premises,
at any time, when for any reason an entry therein shall be necessary or
permissible, Landlord or Landlord's agents may enter the same by a master key,
or may forcibly enter the same, without rendering Landlord or such agents liable
therefor (if during such entry Landlord or Landlord's agents shall accord
reasonable care to Tenant's property), and without in any manner affecting the
obligations and covenants of this lease. 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, other than as herein provided. Landlord shall
also have the right at any time, without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor, to
change the arrangement and/or location of entrances or passageways, doors and
doorways, and corridors, elevators, stairs, toilets, or other public parts of
the building and to change the name, number or designation by which the building
is commonly known.
ELECTRICITY
TWENTY-SECOND:-Tenant agrees that Landlord may furnish electricity to
Tenant on a "submetering" basis or on a "rent inclusion" basis". Electricity and
electric service, as used herein, shall mean any element affecting the
generation, transmission, and/or distribution or redistribution of electricity,
including but not limited to services which facilitate the distribution of
service.
6
(a) Submetering: If and so long as Landlord provides electricity to
the demised premises on a submetering basis, Tenant covenants and agrees to
purchase the same from Landlord or Landlord's designated agent at charges, terms
and rates set, from time to time, during the term of this lease by Landlord but
not more than those specified in the service classification in effect on January
1, 1970 pursuant to which Landlord then purchased electric current from the
public utility corporation serving the part of the city where the building is
located, provided however, said charges shall be increased in the same
percentage as any percentage increase in the billing to Landlord for electricity
for the entire building, by reason of increase in Landlord's electric rates or
service classifications, subsequent to January 1, 1970, and so as to reflect any
increase in Landlord's electric charge including changes in market prices for
electricity from utilities and/or other providers, in fuel adjustment, or by
taxes or charges of any kind imposed on Landlord's electricity purchases or
redistribution, or by any other such reason, subsequent to said date. Any such
percentage increase in Landlord's billing for electricity due to changes in
rates, service classifications, or market prices, shall be computed by the
application of the average consumption (energy and demand) of electricity for
the entire building for the twelve (12) full months immediately prior to the
rate and/or service classification change, or any changed methods of or rules on
billing for same, applied on a consistent basis to the new rate and/or service
classification or market price, and to the service classification and rate in
effect on January 1, 1970. If the average consumption of electricity for the
entire building for said prior twelve (12) months cannot reasonably be applied
and used with respect to changed methods of or rules on billing, then the
percentage shall be computed by the use of the average consumption (energy and
demand) for the entire building for the first three (3) months after such
change, projected to a full twelve (12) months, so as to reflect the different
seasons, and that same consumption, so projected, shall be applied to the
service classification and rate in effect on January 1, 1970. Where more than
one meter measures the service of Tenant in the building, the service rendered
through each meter may be computed and billed separately in accordance with the
rates herein specified. Bills therefore shall be rendered at such times as
Landlord may elect and the amount, as computed from a meter, shall be deemed to
be, and be paid as, additional rent. In the event that such bills are not paid
within five (5) days after the same are rendered, Landlord may, without further
notice, discontinue the service of electric current to the demised premises
without releasing Tenant from any liability under this lease and without
Landlord or Landlord's agent incurring any liability for any damage or loss
sustained by lessee by such discontinuance of service. If any tax is imposed
upon Landlord's receipt from the sale, resale or redistribution of electricity
or gas or telephone service to Tenant by any Federal, State, or Municipal
authority, Tenant covenants and agrees that where permitted by law, Tenant's
pro-rata share of such taxes shall be passed on to and included in the xxxx of,
and paid by, Tenant to Landlord.
(b) Rent Inclusion: If and so long as Landlord provides electricity
to the demised premises on a rent inclusion basis, Tenant agrees that the fixed
annual rent shall be increased by the amount of the Electricity Rent Inclusion
Factor ("ERIF"), as hereinafter defined. Tenant acknowledges and agrees (i) that
the the fixed annual rent hereinabove set forth in this lease does not yet, but
is to include an ERIF of $2.95 per rentable square foot to compensate Landlord
for electrical wiring and other installations necessary for, and for its
obtaining and making available to Tenant the redistribution of electric current
as an additional service; and (ii) that said ERIF, which shall be subject to
periodic adjustments as hereinafter provided, has been partially based upon an
estimate of the Tenant's connected electrical load, in whatever manner delivered
to Tenant, which shall be deemed to be the demand (KW), and hours of use
thereof, which shall be deemed to be the energy (KWH), for ordinary lighting and
light office equipment and the operation of the usual small business machines,
including Xerox or other copying machines (such lighting and equipment are
hereinafter called "Ordinary Equipment") during ordinary business hours
("ordinary business hours" shall be deemed to mean 50 hours per week), with
Landlord providing an average connected load of 4 1/2 xxxxx of electricity for
all purposes per rentable square foot. Any installation and use of equipment
other than Ordinary Equipment and/or any connected load and/or energy usage by
Tenant in excess of the foregoing shall result in adjustment of the ERIF as
hereinafter provided. For purposes of this lease the rentable square foot area
of the presently demised premises shall be deemed to be 8,144 square feet.
If the cost to Landlord of electricity shall have been, or shall be,
increased or decreased subsequent to May 1, 1996 (whether such change occurs
prior to or during the term of this Lease), by change in Landlord's electric
rates or service classifications, or electricity charges, including changes in
market prices, or by any increase, subsequent to the last such electric rate or
service classification change or market price change, in fuel adjustments or
charges of any kind, or by taxes, imposed on Landlord's electricity purchases or
on Landlord's electricity redistribution, or for any other such reason, then the
aforesaid ERIF portion of the fixed annual rent shall be changed in the same
percentage as any such change in cost due to changes in electric rates, service
classifications or market prices, and, also Tenant's payment obligation for
electricity redistribution, shall change from time to time so as to reflect any
such increase in fuel adjustments or charges, and such taxes. Any such
percentage change in Landlord's cost due to change in Landlord's electric rates
or service classifications or market prices shall be computed on the basis of
the average consumption of electricity for the building for the twelve full
7
months immediately prior to the rate change or other such changes in cost,
energy and demand, and any changed methods of or rules on billing for same,
applied on a consistent basis to the new electric rate or service classification
or market price and to the immediately prior existing electric rate or service
classification or market price. If the average consumption (energy and demand)
for the entire building for said prior (12) months cannot reasonably be applied
and used with respect to changed methods for rules on billing, then the
percentage increase shall be computed by the use of the average consumption
(energy and demand) for the entire building for the first three (3) months after
such change, projected to a full twelve (12) months, so as to reflect the
different seasons, and that same consumption, so projected, shall be applied to
the rate and/or service classification or market price which existed immediately
prior to the change. The parties agree that a reputable, independent electrical
consultant firm, selected by Landlord, ("Landlord's electrical consultant"),
shall determine the percentage change for the changes in ERIF due to Landlord's
changed costs, and that Landlord's electrical consultant may from time to time
make surveys in the demised premises of the electrical equipment and fixtures
and use of current (i) If such survey shall reflect a connected electrical load
in the demised premises in excess of 4 1/2 xxxxx of electricity for all purposes
per rentable square foot and/or energy usage in excess of ordinary business
hours (each such excess hereinafter called "excess electricity") then the
connected electrical load and/or the hours of use portion(s) of the then
existing ERIF shall be increased by an amount which is equal to a fraction of
the then existing ERIF, the numerator of which is the excess electricity (i.e.
excess connected load and/or excess usage) and the denominator of which is the
connected load and/or the energy usage which was the basis of the then existing
ERIF. Such fractions shall be determined by Landlord's electrical consultant.
The fixed annual rent shall then be appropriately adjusted, effective as of the
date of any such change in connected load and/or usage, as disclosed by said
survey. (ii) If such survey shall disclose installation and use of other than
Ordinary Equipment, then effective as of the date of said survey, there shall
be added to the ERIF portion of fixed annual rent (computed and fixed as
hereinbefore described) an additional amount equal to what would be paid under
the SC-4 Rate l Service Classification in effect on May 1, 1996 (and not the
time-of-day rate schedule) for such load and usage of electricity, with the,
connected electrical load deemed to be the demand (KW) and the hours of use
thereof deemed to be the energy (KWH), as hereinbefore provided (which addition
to the ERIF shall be increased or decreased by all electricity cost changes of
Landlord, as hereinabove provided, from May 1, 1996 through the date of
billing).
In no event, whether because of surveys, rates or cost changes, or
for any other reason, is the originally specified $2.95 per per rentable square
foot ERIF portion of the fixed annual rent (plus any net increase thereof. but
not decrease, by virtue of all electricity rate, service classification or
market price changes of Landlord subsequent to May 1, 1996) to be reduced.
(c) General Conditions: The determinations by Landlord's electrical
consultant shall be binding and conclusive on Landlord and Tenant from and after
the delivery of copies of such determinations to Landlord and Tenant, unless,
within fifteen (15) days after delivery thereof, Tenant disputes such
determination. If Tenant so disputes the determination, it shall, at its own
expense, obtain from a reputable, independent electrical consultant its own
determinations in accordance with the provisions of this Article. Tenant's
consultant and Landlord's consultant then shall seek to agree. If they cannot
agree within thirty (30) days they shall choose a third reputable electrical
consultant, whose cost shall be shared equally by the parties, to make similar
determinations which shall be controlling. (If they cannot agree on such third
consultant within ten (10) days, than either party may apply to the Supreme
Court in the County of New York for such appointment.) However, pending such
controlling determinations, Tenant shall pay to Landlord the amount of
additional rent or ERIF in accordance with the determinations of Landlord's
electrical consultant. If the controlling determinations differ from Landlord's
electrical consultant, then the parties shall promptly make adjustment for any
deficiency owed by Tenant or overage paid by Tenant.
At the option of Landlord, Tenant agrees to purchase from Landlord
or its agents all lamps and bulbs used in the demised premises and to pay for
the cost of installation thereof. Supplementing Article 53 hereof, if all or
part of the submetering additional rent or the ERIF payable in accordance with
subdivision (a) or (b) of this Article becomes uncollectible or reduced or
refunded by virtue of any law, order or regulation, the parties agree that, at
Landlords option, in lieu of submetering additional rent or ERIF, and in
consideration of Tenant's use of the building's electrical distribution system
and receipt of redistributed electricity and payment by Landlord of consultant's
fees and other redistribution costs, the fixed annual rental rate(s) to be paid
under this lease shall be increased by an "alternative charge" which shall be a
sum equal to $2.95 per year per rentable square foot of the demised premises,
changed in the same percentage as any increases in the cost to Landlord for
electricity for the entire building subsequent to May 1, 1996, because of
electric rate, service classification or market price changes, such percentage
change to be computed as in subdivision (b) provided.
Landlord shall not be liable to Tenant for any loss or damage or
expense which Tenant may sustain or
8
incur if either the quantity or character of electric service is changed or is
no longer available or suitable for Tenant's requirements. Tenant covenants and
agrees that at all times its use of electric current shall never exceed the
capacity of existing feeders to the building or wiring installation. Tenant
agrees not to connect any additional electrical equipment to the building
electric distribution system, other than lamps, typewriters and other small
office machines which consume comparable amounts of electricity, without
Landlord's prior written consent, which consent shall not be unreasonably
withheld. Any riser or risers to supply Tenant's electrical requirements, upon
written request of Tenant, will be installed by Landlord, at the sole cost and
expense of Tenant, if, in Landlord's sole judgment, the same are necessary and
will not cause permanent damage or injury to the building or demised premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expense or interfere with or disturb other
tenants or occupants. In addition to the installation of such riser or risers,
Landlord will also at the sole cost and expense of Tenant, install all other
equipment proper and necessary in connection therewith subject to the aforesaid
terms and conditions. The parties acknowledge that they understand that it is
anticipated that electric rates, charges, etc., may be changed by virtue of
time-of-day rates or changes in other methods of billing, and/or electricity
purchases and the redistribution thereof, and fluctuation in the market price of
electricity, and that the references in the foregoing paragragraphs to changes
in methods of or rules on billing are intended to include any such changes,
Anything hereinabove to the contrary notwithstanding, in no event is the
submetering additional rent or ERIF, or any "alternative charge", to be less
than an amount equal to the total of Landlord's payments to public utilities
and/or other providers for the electricity consumed by Tenant (and any taxes
thereon or on redistribution of same) plus 5% thereof for transmission line
loss, plus 15% thereof for other redistribution costs The Landlord reserves the
right, at any time upon thirty (30) days' written notice, to change its
furnishing of electricity to Tenant from a rent inclusion basis to a submetering
basis, or vice versa, or to change to the distribution of less than all the
components of the existing service to Tenant. The Landlord reserves the right to
terminate the furnishing of electricity on a rent inclusion, submetering, or any
other basis at any time, upon thirty "30" days' written notice to the Tenant, in
which event the Tenant may make application directly to the public utility
and/or other providers for the Tenant's entire separate supply of electric
current and Landlord shall permit its wires and conduits, to the extent
available and safely capable, to be used for such purpose, but only to the
extent of Tenant's then authorized load. Any meters, risers, or other equipment
or connections necessary to furnish electricity on a submetering basis or to
enable Tenant to obtain electric current directly from such utility and/or other
providers shall be installed at Tenant's sole cost and expense. Only rigid
conduit or electricity metal tubing (EMT) will be allowed. The Landlord, upon
the expiration of the aforesaid thirty (30) days' written notice to the Tenant
may discontinue furnishing the electric current but this lease shall otherwise
remain in full force and effect. If Tenant was provided electricity on a rent
inclusion basis when it was so discontinued, then commencing when Tenant
receives such direct service and as long as Tenant shall continue to receive
such service, the fixed annual rent payable under this lease shall be reduced by
the amount of the ERIF which was payable immediately prior to such
discontinuance of electricity on a rent inclusion basis.
WATER SEWER RENTS
TWENTY-THIRD: - (a) If Landlord installs a water meter to measure Tenant's
water consumption for all purposes, Tenant shall pay Landlord for the cost of
the meter and the cost of the installation thereof and throughout the duration
of Tenant's occupancy Tenant shall keep said meter and installation equipment in
good working order and repair at Tenant's own cost and expense, in default of
which Landlord may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant. Tenant agrees to pay for water consumed,
as shown on said meter as and when bills are rendered, and on default in making
such payment Landlord may pay such charges and collect the same from Tenant.
Landlord may inspect such water meter at any time and shall have access thereto
at all times for the purpose of such inspection
(b) In addition to the foregoing, Tenant agrees to pay its proportionate share
of the water consumed in the toilets and other portions of the premises over
which Landlord may reserve control, irrespective of the fact that the same shall
be located outside of the demised premises.
(c) Tenant covenants and agrees to pay its pro-rata share of the sewer rent,
charge or any other tax, rent levy or charge which now or hereafter is assessed,
imposed or a lien upon the demised premises or the realty of which they are part
pursuant to law, order or regulation made or issued in connection with the use,
consumption, maintenance or supply of water, water system or sewage or sewage
connection or system.
(d) The xxxx rendered by Landlord for metered water, sewer or any other charges
provided for in this paragraph "23" shall be based upon Tenant's consumption and
shall be payable by Tenant as additional rent. Any such costs or expenses
incurred or payments made by Landlord for any of the reasons or purposes
hereinabove stated, shall be deemed to be additional rent payable by Tenant and
collectible by Landlord as such. If the building or the demised premises or any
part thereof be supplied with water through a meter through which water is also
supplied
9
to other premises, Tenant shall pay to Landlord as additional rent, on the first
day of each month, $102.00 as Tenant's portion. Independently of and in addition
to any of the remedies reserved to Landlord hereinabove or elsewhere in this
lease, Landlord may xxx for and collect any monies to be paid by Tenant or paid
by Landlord for any of the reasons or purposes hereinabove set forth.
SPRINKLER
TWENTY-FOURTH: - If the sprinkler system or any of its appliances shall be
damaged or injured or not in proper working order by reason of any act or
omission of Tenant, Tenant's agents, servants, employees, licensees or visitors,
Tenant shall forthwith restore the same in good working condition at its own
expense; and if the New York Board of Fire Underwriters or the New York Fire
Insurance Rating Organization 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 for any other reason, 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 Rating Organization, or by any Fire Insurance Company, Tenant
shall, at Tenant's expense, promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.
Tenant shall pay to Landlord as additional rent the sum of $102.00 on the first
day of each month during the term of this lease, as Tenant's portion of the
contract price for sprinkler supervisory service.
AIR CONDITIONING
TWENTY-FIFTH: - Tenant shall have the privilege of using the air
conditioning system which affects the whole or a portion of the demised
premises, and shall, at its own cost and expense, maintain and operate said
system in compliance with all present and future laws and governmental
requirements, and shall obtain all governmental licenses and permits now or
hereafter required. Tenant shall pay for all electric current, water and
refrigerants used in connection with said system. Tenant, at its own cost and
expense, shall make or cause to be made, all repairs, alterations, changes.
additions or improvements in and to said system which may be necessary or which
may be required or recommended by Landlord or by any governmental authority, and
shall furnish all parts and supplies necessary or desirable in connection
therewith, but no alterations, changes, additions or improvements shall be made
by Tenant without the advance written consent of Landlord. Landlord's charges
for electric current, water and refrigerants and for such parts, supplies,
repairs, alterations, changes, additions or improvements as are caused to be
furnished or made by Landlord shall be payable by Tenant as additional rent upon
presentation of Landlord's xxxx for same. If Tenant shall default in paying any
such xxxx for five (5) day's, Landlord shall have the right, in addition to any
other rights under this lease to terminate the operation of said air
conditioning system without notice to Tenant, and if such default shall continue
for sixty (60) days, Landlord shall have the right to remove the whole or any
part of said system from the demised premises without notice to Tenant. The
non-functioning or defective functioning of said air conditioning system, or
Tenant's inability to operate or maintain the same in compliance with lawful
requirements, or Landlord's removal thereof or termination of the operation
thereof as provided in this paragraph, or any delay, discomfort or inconvenience
suffered by Tenant in connection therewith, or, without limitation of or by the
foregoing, any other matter or thing related to such system, shall not give rise
to any obligation or liability on the part of Landlord and shall not affect this
lease or be deemed to release or discharge Tenant of any of Tenant's obligations
or liabilities under this lease or otherwise. Title to said system and all
present and future parts thereof is and shall be vested in Landlord.
ELEVATOR
TWENTY-SIXTH: - (a) As long as Tenant is not in default under any of the
covenants of this lease, Landlord shall provide necessary elevator facilities on
business days from 8:00 A.M. to 6:00 P.M., and on Saturdays from 8:00 A.M. to
1:00 P.M. On Sundays, holidays and nights, Landlord will furnish at least one
(1) elevator.
(b) If the building of which the demised premises are a part supplies manually
operated elevator service, Landlord may proceed with alterations necessary to
substitute automatic control elevator service upon ten (10) days' written notice
to Tenant without in any way affecting the obligations of Tenant hereunder,
provided that the same shall be done with the minimum amount of inconvenience to
Tenant, and Landlord pursues with due diligence the completion of the
alterations. Where automatic control elevator service is now, or hereafter
furnished, and the demised premises contain an entire floor or floors, Tenant
will provide, at its own cost and expense, locks for all entrances to such floor
or floors from the elevators.
(c) Tenant agrees it will not permit its employees other than office help to use
the passenger elevator in said building, nor will it permit them to use the
stairs leading to and from the passenger entrance to said
10
building. Landlord may prescribe and regulate which elevator and entrance shall
be used by Tenant's employees and for Tenants shipping.
HEAT, CLEANING, PUBLIC AREAS
TWENTY-SEVENTH: -- Landlord will:
(a) Furnish heat to the demised premises, when and as required by law, on
business days during regular business hours.
(b) Cause to be kept clean the public halls and public portions of the
building, which are used in common by all tenants.
REQUIRED ALTERATIONS, MACHINERY
TWENTY-EIGHTH: -- It is expressly agreed that if in consequence of the use
of the demised premises for manufacturing purposes any Municipal or State
Authority requires alterations and additions to such premises or the building of
which they are a part. Landlord, in addition to other remedies provided for in
this lease, shall have the option of terminating this lease on sixty (60) days'
written notice to Tenant. Upon expiration of said sixty (60) days, the term of
this lease shall terminate, and Tenant shall immediately vacate the premises. In
such event, Landlord shall refund to Tenant the unearned pro rata portion of any
rent paid in advance. Landlord reserves the privilege of complying with any
order, rule or regulation as aforementioned in order to remove such violation,
if any. In such event, Tenant waives any and all claims for damages growing out
of the work in the building or on the premises in connection therewith. In the
event that the violation can be removed by Tenant's limiting the number of
employees in the demised premises. Tenant shall so limit the number of employees
immediately and no claim for damages or any loss may be made against Landlord
therefor.
FIXTURES & PARTITIONS INSTALLED BY LANDLORD
TWENTY-NINTH: -- Tenant shall have the use of the partitions existing in
the premises demised herein and of all other equipment, fixtures and
appurtenances installed by Landlord prior to or during the term hereof. The
ownership of all such property shall at all times be vested in Landlord and
possession thereof shall revert to Landlord upon the expiration of the lease.
VAULTS
THIRTIETH: -- If any vault space is adjacent to the demised premises, the
same shall not be or be deemed to be part of the demised premises or its
appurtenances. Landlord may permit Tenant to use such vault space gratuitously,
but such permission may be revoked by Landlord at any time on two (2) days,
notice. Landlord shall have the right at any time to cause a wall to be erected
for the purpose of sealing off such vault space from the demised premises. Said
wall may be erected wholly or partly on that portion of the demised premises
which abuts such vault space. Landlord and its designees shall have the right
from time to time to enter and remain upon the demised premises, with men and
materials, for the purpose of erecting such wall. Tenant shall not be entitled
to any compensation, abatement of rent, or other claim by reason of any action
taken under this paragraph by or on behalf of Landlord. Any fee or license
charge or tax of municipal authorities for such vault shall be paid by Tenant.
LIABILITY OF LANDLORD, PROPERTY, LOSS, DAMAGE
THIRTY-FIRST: -- Landlord or its agents shall not be liable for any damage
to property of Tenant or of others entrusted to employees of the building, nor
for the loss of or damage to any property of Tenant by theft or otherwise.
Landlord or its agents shall not be liable for any injury or damage to persons
or property resulting from fire, explosion, falling ceilings, falling plaster,
steam, gas, electricity, water, rain or snow or leaks from any part of said
building or from the pipes, appliances or plumbing works or from the roof,
street or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature, including but not limited to the making of repairs
and improvements, unless caused by or due to the negligence of Landlord, its
agents, servants or employees: nor shall Landlord or its agents be liable for
any such damage caused by other tenants or persons in said building or caused by
operations in construction of any private, public or quasi public work; nor
shall Landlord be liable for any latent defect in the demised premises or in the
building of which they form a part. Tenant shall give immediate notice to
Landlord in case of fire or accidents in the demised premises or in the building
or of defects therein or in any fixtures or equipment.
INDEMNITY
THIRTY-SECOND: -- Tenant shall, throughout the term and thereafter,
indemnify Landlord and save it harmless and free from damages, liabilities,
penalties, losses, expenses, causes of action, claims, suits and judgments, as
well as all expenses and attorneys' fees, arising from injury during said term
to person or property of any nature, and also for any matter or thing growing
out of the occupation of the demised premises or the streets, sidewalks, or
vaults adjacent thereto occasioned in whole or part by any act or acts, omission
or omissions of Tenant, its employees, guests, agents, assigns or undertenants.
LIABILITY OF LANDLORD, SERVICE INTERRUPTION ACTS BEYOND CONTROL
THIRTY-THIRD: -- Neither this lease nor any obligation hereunder on
Tenant's part to be performed (including, but not limited to, Tenant's
obligation to pay the rents provided for hereunder) shall in any wise be
11
released, discharged, impaired, excused or otherwise affected because of
Landlord's inability to supply, furnish or make such services, fixtures,
equipment, repairs, additions, improvements, alterations and/or decorations, if
any, as Landlord may be required to supply, furnish or make hereunder or in
connection herewith, or because of any delay in supplying, furnishing or making
any of the foregoing, if such inability or delay directly or indirectly results
from or is caused by or attributable to any cause or thing whatsoever beyond
Landlord's control, including, but not limited to, any law or ordinance or any
governmental order, rule, regulation or requirement, or any shortages in
supplies, materials or labor, or any acts of God, or any labor difficulties,
disasters or acts of public enemies, and in any such event Landlord shall be
relieved of any liability to Tenant which it might otherwise have had by reason
of any such requirement. Lessee agrees to look solely to Lessor's estate and
interest in the land and building, or the lease of the building or of the land
and building, and the demised premises, for the satisfaction of any right or
remedy of Lessee for the collection of a judgment (or other judicial process)
requiring the payment of money by Lessor, in the event of any liability by
Lessor, and no other property or assets of Lessor shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Lessee's
remedies under or with respect to this lease, the relationship of landlord and
tenant hereunder, or Lessee's use and occupancy of the demised premises or any
other liability of Lessor to Lessee (except for negligence).
SUBORDINATION
THIRTY-FOURTH: -- This lease is and shall be subject and subordinate at
all times to all present or future leases and subleases of the entire building
or of the land and entire building of which the demised premises form a part,
and to all mortgages which now affect or may hereafter affect or be made in
respect of such leases and subleases or the real property of which the demised
premises form a part (whether or not such leases or mortgages also affect any
other or additional real property), and to all renewals, modifications,
consolidations, replacements and extensions thereof and to all advances made or
hereafter to be made upon the security thereof. This clause shall be
self-operative and no further instrument in writing to effectuate such
subordination shall be necessary. In confirmation of such subordination,
however, Tenant shall, on demand, promptly execute, acknowledge and deliver such
further instruments or certificates that Landlord may request. Tenant hereby
irrevocably appoints Landlord the attorney-in-fact of Tenant to execute,
acknowledge and deliver any such instrument or certificate for or on behalf of
Tenant. In the event that any Master Lease or any other ground or underlying
lease is terminated, or any mortgage foreclosed, this lease shall not terminate
or be terminable by Lessee unless Lessee was specifically named in any
termination or foreclosure judgment or final order. In the event that the Master
Lease or any other ground or underlying lease is terminated as aforesaid, Lessee
agrees to enter into a new lease covering the within premises, for the remaining
term of this lease and otherwise on the same terms, conditions and rentals as
herein provided, with and at the election of the holder of any superior lease,
or if there is no superior lease in existence, then with and at the election of
the holder of the fee title to the premises. If the current term of the Master
Lease shall expire prior to the date set forth herein for the expiration of this
lease, then, unless Lessor, at its sole option, shall have elected to extend or
renew the term of the Master Lease, the term of this lease shall expire on the
date of expiration of the Master Lease, notwithstanding the later expiration
date hereinabove set forth. If the Master Lease is renewed, then the term of
this lease shall expire as hereinabove set forth. From time to time, Lessee, on
at least ten (10) days' prior written request by Lessor, will deliver to Lessor
a statement in writing certifying that this lease is unmodified and in full
force and effect (or if there shall 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 and other charges have been paid and stating whether or not
the Lessor is in default in performance of any covenant, agreement or condition
contained in this lease and, if so, specifying each such default of which Lessee
may have knowledge. This paragraph shall not be deemed modified in whole or in
part by any provision of this lease or any rider thereto during the term hereof,
unless such provisions or rider shall by its terms expressly so modify it.
FIRE
THIRTY-FIFTH: -- Provided the damage be not caused by the fault or neglect
of Tenant or of its employees, agents, visitors or licensees, in the event of
damage by fire, or other action of the elements, to the demised premises not
rendering all of them unfit for occupancy. Landlord shall repair the same with
reasonable dispatch after notice of such damage, and the rent accrued or
accruing shall not cease: but if the damage be so extensive as to render all of
the demised premises untenantable, the rent shall cease until they be repaired,
provided the damage be not caused by the carelessness or negligence of Tenant or
of the agents or servants of Tenant. No penalty shall accrue for reasonable
delay which may arise by reason of adjustment of insurance on the part of
Landlord and/or Tenant, and for reasonable delay on account of "labor troubles"
or any other cause beyond Landlord's control. If the demised premises are
totally damaged or are rendered wholly untenantable by fire or other cause, and
if Landlord shall decide not to restore or not to rebuild the same, or if the
building shall be so damaged that Landlord shall decide to demolish it or to
rebuild it, or if the cost of restoration of the
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building of which the demised premises are a part, resulting from the aforesaid
fire or other casualty shall exceed the sum of $3,000,000, 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 termination, which notice shall be
given as provided in this lease, 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. If
Tenant shall not be in default under this lease then, upon the termination of
this lease under the conditions provided for in the sentence immediately
preceding, Tenant's liability for rent shall cease as of the day following the
casualty. Tenant hereby expressly waives the provisions of Section 227 of the
Real Property Law and agrees that the foregoing provisions of this paragraph
shall govern and control in lieu thereof. If the damage or destruction be due to
the fault or neglect of Tenant, the debris shall be removed by and at the
expense of Tenant.
CONDEMNATION
THIRTY-SIXTH: -- If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding. If any part of the
land or the building of which the demised premises are a part shall be so
acquired or condemned, then and in that event the term of this lease, at the
option of Landlord, shall cease and terminate on ten (10) days' notice by
Landlord to Tenant. In neither event shall Tenant have any claim for the value
of any unexpired term of said lease.
BANKRUPTCY
THIRTY-SEVENTH: -- If, when and to the extent permitted by law, the
parties agree that the following provisions shall apply to this lease and
tenancy (and that the provisions of 11 U.S.C. 'SS' 365(b) shall be applied): (a)
If at any time prior to the date herein fixed as the commencement of the term of
this lease there shall be filed against Tenant thereof or if such filing is made
by 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 thereof Tenant fails to secure a discharge
thereof, or if Tenant makes an assignment for the benefit of creditors, or
petition for or enter into an arrangement, this lease shall ipso facto be
cancelled and terminated, and in which event, neither Tenant nor any person
claiming through or under Tenant or by virtue of any statute or of an 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 and 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 him from Tenant or others in behalf of
Tenant upon the execution hereof.
(b) If at the date fixed as the commencement of the term of this lease or
if at any time during the term hereby demised, there shall be filed against
Tenant thereof or if such filing is made by Tenant in any court pursuant to any
statute of the United States or any State a petition of 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 thereof Tenant fails
to secure a discharge thereof, or if Tenant makes an assignment for the benefit
of creditors or petition for or enter 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,
and in which event neither Tenant nor any person claiming through or under
Tenant by virtue of any statute or of an order of any court shall be entitled to
possession or to remain in possession of the premises demised, 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
by him from Tenant or others in behalf of Tenant.
(c) It is stipulated and agreed that 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 four per cent (4%) per annum. If such
premises or any part thereof be re-let by Landlord for the unexpired term of
said lease, or any part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent reserved upon
such re-letting shall be 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
Landlord to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum
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allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, such damages are to be proved, whether or not such
amount be greater, equal to, or less than the amount of the difference referred
to above.
SECURITY
THIRTY-EIGHTH: -- Tenant has deposited with Landlord the sum of $ NONE, as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this lease: it is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
lease, including, but not limited to, the payment of rent and additional rent,
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 any other sum as to which Tenant is in default or for any sum which Landlord
may expend or may be required to expend by reason of Tenant's default in respect
of any of the terms, covenants and conditions of this lease, including but not
limited to, any damages or deficiency in the re-letting of the premises, whether
such damage or deficiency accrued before or after summary proceedings or other
re-entry by Landlord, Tenant shall, upon demand, deposit with Landlord the full
amount so used, in order that Landlord shall have the full security deposit on
hand at all times. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
lease and after delivery of entire possession of the demised premises to
Landlord. In the event of any transfer or conveyance by Landlord of its lease to
the building of which the demised premises form a part, hereinafter referred to,
Landlord shall have the right to transfer the security to the transferee or
grantee, and Landlord shall thereupon be released by Tenant from all liability
for the return of such security: and Tenant agrees to look to the new Landlord
solely for the return of said security: and it is agreed that the provisions
hereof shall apply to every transfer or assignment made of the security to a new
Landlord. Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as security and that
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
DEFAULT
THIRTY-NINTH: -- (a) If Tenant defaults in fulfilling any of the covenants
of this lease other than the covenants for the payment of rent or additional
rent, or of any ancillary agreement, or if the demised premises become vacant or
deserted, then, in any one or more of such events, upon Landlord serving a
written five (5) days' notice upon Tenant specifying the nature of said default
and upon the expiration of said five (5) days, if Tenant shall have failed to
comply with or remedy such default, or if the said default or omission
complained of shall be of such a nature that the same cannot be completely cured
or remedied within said five (5) day period, and if Tenant shall not have
diligently commenced during such default within such five (5) day period, and
shall not thereafter with reasonable diligence and in good faith proceed to
remedy or cure such default, then Landlord may serve a written three (3) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said three (3) days, this lease and the term thereunder shall end and expire as
fully and completely as if the date of expiration of such three (3) day period
were the day herein definitely fixed for the end and expiration of this lease
and the term thereof, and Tenant shall then quit and surrender the demised
premises to Landlord, but Tenant shall remain liable as hereinafter provided.
(b) If the 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 herein
mentioned 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
Tenants property whereupon the demised premises shall be taken or occupied or
attempted to be taken or occupied by someone other than Tenant: or (3) if Tenant
shall make 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 commencement of the term of this lease, of which
fact Landlord shall be the sole judge: then and in any of such events Landlord
may without notice, reenter the demised premises either by force or otherwise,
and dispossess Tenant by summary proceedings or otherwise: and the legal
representative of Tenant or other occupant of demised premises and remove their
effects and hold the premises as if this lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to institute
legal proceedings to that end. If Tenant shall make default hereunder prior to
the date fixed as the commencement of any renewal or extension of this lease,
Landlord may cancel and terminate such renewal or extension agreement by written
notice.
(c) If Tenant is presently in possession of the demised premises pursuant
to a lease in writing heretofore made and if, before the commencement of the
term herein provided the aforesaid lease shall be terminated or Tenant shall be
dispossessed or shall voluntarily or involuntarily vacate, surrender or remove
from the
14
demised premises, then this lease shall, at the option of Landlord, be
terminated, but Tenant shall nevertheless remain liable as hereinbefore
provided.
REMEDIES OF LANDLORD
FORTIETH: -- In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the rent and additional rent
shall become due thereupon and be paid up to the time of such reentry,
dispossess and/or expiration, together with such expenses as Landlord may incur
for legal expenses, attorneys fees, brokerage, and/or putting the demised
premises in good order, or for preparing the same for rerental; (b) 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: and/or (c) 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
herein contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected on
account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term of this
lease. The rent received from any re-letting or re-lettings, but only for the
unexpired portion of this lease, shall be applied first to the payment of
Landlord's expenses in resuming possession and re-letting the premises, which
expenses shall include but not be limited to attorneys' fees, brokerage
commissions, cleaning, repairs, painting and decoration. The balance, if any,
shall be applied in payment of all unpaid rent, additional rent and other
charges due from Tenant hereunder, irrespective of whether the liability
therefor arose prior or subsequent to the date of the expiration of the term
hereof. Tenant hereby covenants and agrees to pay to Landlord, within a
reasonable time after demand therefor shall be made, the balance, if any,
remaining unpaid. In the event that any re-letting hereunder results in
Landlord's receiving from Tenant in any month an amount in excess of the amount
due for such month, then and in that event Tenant shall not be obligated to make
any payment to Landlord for rent due in such month, nor shall Landlord at any
time be obligated to make any refund or apply any credit to Tenant with respect
to such rent, and Tenant shall have no claim by way of defense to a suit or
otherwise that Landlord has received for any prior month or that any new tenant
has agreed to pay for any subsequent month a greater amount than that
hereinabove reserved to be paid as rent for that month. The failure or refusal
of Landlord to re-let the premises or any part or parts thereof shall not
release or affect Tenant's liability for damages. Any security in Landlord's
possession not retained by it as liquidated damages may be applied by it for any
or all of the aforesaid purposes. Any such liquidated damages shall be paid as
additional rent hereunder 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 Landlord's option, may make such alterations, repairs, replacements
and/or decorations in the demised premises as Landlord in Landlord's sole
judgment considers advisable and necessary for the purpose of re-letting the
demised premises: and the making of such alterations and/or 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 demised premises, or in the event that the demised
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 inequity as if re-entry,
summary proceedings and other remedies were not herein provided for. Mention in
this lease of any particular remedy, shall not preclude Landlord from any other
remedy, in law or in equity.
COURT ORDER RELATING TO RENT
FORTY-FIRST: -- Notwithstanding anything elsewhere contained in this
lease, if by reason of any present or future cause or thing whatsoever
(including, without limitation, by reason of any statute, ordinance, judgment,
decree, court order or governmental rule or regulation). Tenant will not or
shall not be required to pay to Landlord the full amount of rent and additional
rent reserved hereunder, then Landlord, at its unrestricted option, may give
Tenant not less than five (5) days' notice of intention to end this lease and
the term hereof, and thereupon, on the date specified in said notice, this lease
and the term hereof shall expire as fully and completely as if that date were
the date, herein originally fixed for the expiration of this lease and the term
hereof.
WAIVER OF TRIAL BY JURY
FORTY-SECOND: -- 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, the relationship of landlord and tenant. Tenant's use
or occupancy of said premises, except for personal injury or property damage, or
involving the right to any statutory relief or remedy. Tenant will not
15
interpose any counterclaim of any nature in any summary proceeding. The
provisions of this paragraph shall be binding upon the respective heirs,
distributees, executors, administrators, successors and assigns of the parties
hereto and all subtenants hereunder.
WAIVER OF REDEMPTION
FORTY-THIRD: -- Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of demised premises, by reason of the violation by Tenant
of any of the covenants and conditions of this lease, or otherwise.
NO WAIVER
FORTY-FOURTH: -- (a) If there be any agreement between Landlord and Tenant
providing for the cancellation of this lease upon certain provisions or
contingencies, and/or an agreement for the renewal hereof at the expiration of
the term first above mentioned, the right to such renewal or the execution of a
renewal agreement between Landlord and Tenant prior to the expiration of such
first mentioned term shall not be considered an extension thereof or a vested
right in Tenant to such further term, so as to prevent Landlord from cancelling
this lease and any such extension thereof during the remainder of the original
term hereby granted: such privilege, if and when so exercised by Landlord, shall
cancel and terminate this lease and any such renewal or extension previously
entered into between said Landlord and Tenant or the right of Tenant to any such
renewal or extension: any right herein contained on the part of Landlord to
cancel this lease shall continue during any extension or renewal hereof: any
option on the part of Tenant herein contained for an extension or renewal hereof
shall not be deemed to give Tenant any option for a further extension beyond the
first renewal or extended term.
(b) No act or thing done by Landlord or Landlord's agents during the term
hereby demised shall constitute an actual or constructive eviction by Landlord,
nor shall be deemed an acceptance of a surrender of said demised premises, and
no agreement to accept such surrender shall be valid unless in writing signed by
Landlord. In the event that any payment herein provided for by Tenant to
Landlord shall become overdue for a period in excess of ten (10) days, then at
Landlord's option a "late charge" for such period and for each additional period
of twenty (20) days or any part thereof shall become immediately due and owing
to Landlord, as additional rent by reason of the failure of Tenant to make
prompt payment, at the following rates: for individual and partnership tenants,
said late charge shall be computed at the maximum legal rate of interest: for
corporate or governmental entity tenants the late charge shall be computed at
two percent per month unless there is an applicable maximum legal rate of
interest which then shall be used. No employee of Landlord or Landlord's agents
shall have any power to accept the keys of said premises prior to the
termination of the lease. The delivery of keys to any employee of Landlord or of
Landlord's agents shall not operate as a termination of the lease or a surrender
of the premises. In the event of Tenant at any time desiring to have Landlord
sublet the premises for Tenant's account, Landlord or Landlord's agents are
authorized to receive said keys for such purposes without releasing Tenant from
any of the obligations under this lease, and Tenant hereby relieves Landlord of
any liability for loss of or damage to any of Tenant's effects in connection
with such subletting.
(c) 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 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 with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach.
(d) The failure of Landlord to enforce any of the Rules and Regulations
set forth, or hereafter adopted, against Tenant and/or any other tenant in the
building shall not be deemed a waiver of any such Rules and Regulations. No
provision of this lease shall be deemed to have been waived by Landlord, unless
such waiver be in writing signed by Landlord.
(e) No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rent herein stipulated shall be deemed to be other than on account
of the earliest stipulated rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy in this lease provided.
LICENSE
FORTY-FIFTH: -- Tenant covenants that Tenant will not, without the consent
of Landlord first obtained in each case, make or grant any license in respect of
the demised premises or any part thereof, or in respect of the use thereof and
will not permit any such license to be made or granted.
16
GLASS AND GLASS INSURANCE
FORTY-SIXTH: -- Landlord shall replace, at the expense of Tenant, any and
all plate and other glass damaged or broken from any cause whatsoever in and
about the demised premises. Landlord may insure, and keep insured, at Tenant's
expense, all plate and other glass in the demised premises for and in the name
of Landlord. Bills for the premiums therefor shall be rendered by Landlord to
Tenant at such times as Landlord may elect, and shall be due from, and payable
by, Tenant when rendered, and the amount thereof shall be deemed to be, and be
paid as, additional rent.
ADJACENT EXCAVATION--SHORING
FORTY-SEVENTH: -- If an excavation shall be made upon land adjacent to the
demised premises, or shall be authorized to be made, Tenant shall afford to the
person causing or authorized to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form a
part from injury or damage and to support the same by proper foundations without
any claim for damages or indemnity against Landlord, or diminution or abatement
of rent.
BILLS AND NOTICES
FORTY-EIGHTH: -- Except as otherwise in this lease provided, a xxxx,
statement, notice or communication which Landlord may desire or be required to
give to Tenant, shall be deemed sufficiently given or rendered if in writing
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant at the building of which the demised premises form a part or at the
last known residence address or business address of Tenant or left at any of the
aforesaid premises addressed to Tenant, and the time of the rendition of such
xxxx or statement and of the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant, mailed, or left at
the premises as herein provided. Any notice by Tenant to Landlord must be served
by registered or certified mail addressed to Landlord at the address first
hereinabove given or at such other address as Landlord shall designate by
written notice.
QUIET ENJOYMENT
FORTY-NINTH: -- If and so long as Tenant pays the rent and additional rent
reserved hereby and performs and observes the covenants and provisions hereof,
Tenant shall quietly enjoy the demised premises, subject, however, to the terms,
conditions, exceptions and reservations of this lease, and to the ground,
underlying and overriding leases and mortgages hereinbefore mentioned.
QUIT AND SURRENDER
FIFTIETH: -- Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Landlord the demised premises, broom
clean, in good order and condition, ordinary wear excepted. Lessee acknowledges
that possession of the demised premises must be surrendered to the Lessor at the
expiration or sooner termination of the term of this Lease. Lessee agrees it
shall indemnify and save Lessor harmless against costs, claims, loss or
liability resulting from delay by Lessee in so surrendering the demised
premises, including, without limitation, any claims made by any succeeding
tenant, founded on such delay. The parties recognize and agree that the damage
to Lessor resulting from any failure by Lessee timely to surrender possession of
the demised premises as aforesaid will be extremely substantial, will exceed the
amount of monthly rent theretofore payable hereunder, and will be impossible of
accurate measurement. Lessee therefore agrees that if possession of the demised
premises is not surrendered to Lessor within seven (7) days after the date of
the expiration or termination of the term of this Lease, then Lessee agrees to
pay Lessor as liquidated damages for each month and for each portion of any
month during which Lessee holds over in the premises after expiration or
termination of the term of this Lease, a sum equal to three times the average
rent and additional rent which was payable per month under this Lease during the
last six months of the term thereof. The aforesaid provisions of this article
shall survive the expiration or sooner termination of the term of this Lease. If
the last day of the term of this lease or any renewal thereof falls on Sunday,
this lease shall expire on the business day immediately preceding.
FAILURE TO GIVE POSSESSION
FIFTY-FIRST--If Landlord shall be unable to give possession of the demised
premises on the date of the commencement of the term hereof for any reason,
Landlord shall not be subject to any liability. Under such circumstances, the
rent reserved and covenanted to be paid herein shall not commence until the
possession of demised premises is given or the premises are available for
occupancy by Tenant, and no such failure to give possession on the date of
commencement of the term shall in any wise affect the validity of this lease or
the obligations of Tenant hereunder, nor shall same be construed in any wise to
extend the term of this lease. If Landlord is unable to give possession of the
demised premises on the date of the commencement of the term hereof by reason of
the holding over or retention of possession of any tenant, tenants or occupants
or for any other reason, or if repairs, improvements or decorations of the
demised premises or of the building of which said premises form a part, are not
completed, no abatement or diminution of the rent to be paid hereunder shall be
allowed to Tenant nor shall the validity of the lease be impaired under such
circumstances. If permission is given to Tenant to enter into the possession of
the demised premises or to occupy premises other
17
than the demised premises prior to the date specified as the commencement of the
term of this lease. Tenant covenants and agrees that such occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions of this
lease, except as to the covenant to pay rent. In either case rent shall commence
on the date specified in this lease.
REPRESENTATIONS
FIFTY-SECOND: -- 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
demised premises by Tenant shall be conclusive evidence, as againt Tenant, that
Tenant accepts same "as is" and that said premises and the building of which the
same form a part were in good and satisfactory condition at the time such
possession was so taken.
RENT CONTROL
FIFTY -THIRD: -- In the event the fixed annual rent or additional rent or
any part thereof provided to be paid by Lessee under the provisions of this
lease during the demised term shall become uncollectible or shall be reduced or
required to be reduced or refunded by virtue of any Federal, State, County or
City law, order or regulation, or by any direction of a public officer or body
pursuant to law, or the orders, rules, code, or regulations of any organization
or entity formed pursuant to law, whether such organization or entity be public
or private, then Lessor, at its option, may at any time thereafter terminate
this lease, by not less than thirty (30) days' written notice to Lessee, on a
date set forth in said notice, in which event this lease and the term hereof
shall terminate and come to an end on the date fixed in said notice as if the
said date were the date originally fixed herein for the termination of the
demised term. Lessor shall not have the right so to terminate this lease if
Lessee within such period of thirty (30) days shall in writing lawfully agree
that the rentals herein reserved are reasonable rentals and agree to continue to
pay said rentals and if such agreement by Lessee shall be legally enforceable by
Lessor.
COVENANTS BINDING SUCCESSORS
FIFTY-FOURTH: -- 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.
LEASE EMBODIES UNDERSTANDING OF PARTIES
FIFTY-FIFTH: -- Except as may be otherwise contained in a written
instrument or instruments duly executed and delivered by and between the parties
hereto, this lease contains the entire agreement and understanding of the
parties with respect to the demised premises and the respective rights and
duties of the parties in relation thereto and in relation to each other. There
are no oral understandings or agreements between the parties of any kind.
Landlord has made no representations or warranties to Tenant of any kind. All
oral representations, warranties and promises prior to or contemporaneous with
this written lease (if any be claimed) are and shall be deemed merged into this
lease. This lease cannot be changed or supplemented orally. All promises and
agreements made by or between the parties subsequent to the execution and
delivery of this lease shall be and be deemed to be null, void and unenforceable
unless contained in a writing duly executed and delivered by and between the
parties hereto, whether or not the same relate in any way to this lease or any
master covered hereby.
DEFINITIONS
FIFTY-SIXTH: -- (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 entire building or of the land and
entire building) of which the demised premises form a part so that in the event
of any sale or sales of said land and entire building or of any transfer or
conveyance of said lease or in the event of a lease of said entire building or
of the land and entire building, the said Landlord shall be and hereby is
entirely freed and relieved of all liability for the performance of all
covenants and obligations on the part of Landlord to be performed hereunder, and
it shall be deemed and considered without further agreement between the parties
or other successors in interest or between the parties and the purchaser at any
such sale or any transferee or mortgagee or any lessee of the entire building or
of the land and entire building that the purchaser, lessee, transferee or
grantee has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder. Tenant acknowledges that it has been informed
and understands that Landlord is a lessee of the land and entire building of
which the demised premises form a part. The term "lease of the entire building
or of the land and entire building" shall be deemed to include a sublease
thereof, and the term "lessee of the entire building or of the land and entire
building" shall be deemed to include a sublessee thereof.
(b) The words "re-entry" as used in this lease are not restricted to their
technical legal meaning.
(c) The term "business days" as used in this lease shall exclude Saturdays
(except such portion thereof as is covered by the insertion of specific hours
herein), Sundays and all days observed by the State or Federal Government as
legal holidays.
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(d) From time to time, Tenant, on at least ten (10) days' prior written
request by Landlord, will deliver to Landlord a statement in writing certifying
that this lease is unmodified and in full force and effect (or if there shall
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 and other charges
have been paid and stating whether or not Landlord is in default in performance
of and covenant, agreement or condition contained in this lease and if so,
specifying each such default of which Tenant may have knowledge.
COST OF LIVING ADJUSTMENTS
FIFTY-SEVENTH: -- The fixed annual rent reserved in this lease and payable
hereunder shall be adjusted, as of the times and in the manner set forth in this
Article:
(a) Definitions: For the purposes of this Article, the following
definitions shall apply:
(i) The term "Base Year" shall mean the full calendar year during which
the term of this lease commences. 1997
(ii) The term "Price Index" shall mean the "Consumer Price Index"
published by the Bureau of Labor Statistics of the U.S. Department of Labor. All
Items, New York, N.Y.--Northeastern, N.J., all urban consumers (presently
denominated "CPI-U") or a successor or substitute index appropriately adjusted.
4% CAP
SEE RIDER
(iii) the term "Price Index for the Base Year" shall mean the average of
the monthly All Items Price Indexes for each of the 12 months of the Base Year.
(b) Effective as of each January and July subsequent to the Base Year,
there shall be made a cost of living adjustment of the fixed annual rental rate
payable hereunder. The July adjustment shall be based on the percentage
difference between the Price Index for the preceding month of June and the Price
Index for the Base Year. The January adjustment shall be based on such
percentage difference between the Price Index for the preceding month of
December and the Price Index for the Base Year.
(i) In the event the Price Index for June in any calendar year during the
term of this lease reflects an increase over the Price Index for the Base Year,
then the fixed annual rent herein provided to be paid as of the July 1st
following such month of June (unchanged by and adjustments under this Article)
shall be multiplied by the percentage difference between the Price Index for
June and the Price Index for the Base Year, and the resulting sum shall be added
to such fixed annual rent, effective as of such July 1st. Said adjusted fixed
annual rent shall thereafter be payable hereunder, in equal monthly
installments, until it is readjusted pursuant to the terms of this lease.
(ii) In the event the Price Index for December in any calendar year during
the term of this lease reflects an increase over the Price Index for the Base
Year, then the fixed annual rent herein provided to be paid as of the January
1st following such month of December (unchanged by any adjustments under this
Article) shall be multiplied by the percentage difference between the Price
Index for December and the Price Index for the Base Year, and the resulting sum
shall be added to such fixed annual rent effective as of such January 1st. Said
adjusted fixed annual rent shall thereafter be payable hereunder, in equal
monthly installments, until it is readjusted pursuant to the terms of this
lease.
The following illustrates the intentions of the parties hereto as to the
computation of the aforementioned cost of living adjustment in the annual rent
payable hereunder
Assuming that said fixed annual rent is $10,000, that the Price Index for
the Base Year was 102.0 and that the Price Index for the month of June in a
calendar year following the Base Year was 105.0, then the percentage increase
thus reflected, i.e., 2.941% (3.0/102.0) would be multiplied by $10,000, and
said fixed annual rent would be increased by $294.10 effective as of July 1st of
said calendar year.
In the event that the Price Index ceases to use 1982-84=100 as the basis
of calculation, or if a substantial change is made in the terms or number of
items contained in the Price Index, then the Price Index shall be adjusted to
the figure that would have been arrived at had the manner of computing the Price
Index in effect at the date of this lease not been altered. In the event such
Price Index (or a successor or substitute index) is not available, a reliable
governmental or other non-partisan publication evaluating the information
theretofore used in determining the Price Index shall be used.
(c) Landlord will cause statements of the cost of living adjustments
provided for in subdivision (b) to be prepared in reasonable detail and
delivered to Tenant.
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(d) In no event shall the fixed annual rent originally provided to be paid
under this lease (exclusive of the adjustments under this Article) be reduced by
virtue of this Article.
(e) Any delay or failure of Landlord, beyond July or January of any year,
computing or billing for the rent adjustments hereinabove provided, shall not
constitute a waiver of or in any way impair the continuing obligation of Tenant
to pay such rent adjustments hereunder.
(f) Notwithstanding any expiration or termination of this lease prior to
the lease expiration date (except in the case of a cancellation by mutual
agreement) Tenant's obligation to pay rent as adjusted under this Article shall
continue and shall cover all periods up to the lease expiration date, and shall
survive any expiration or termination of this lease.
TAX ESCALATION
FIFTY-EIGHTH: -- Tenant shall pay to Landlord, as additional rent, tax
escalation in accordance with this Article:
(a) For purposes of this lease the rentable square foot area of the
presently demised premises shall be deemed to be 8,144 square feet.
(b) Definitions: For the purpose of this Article, the following
definitions shall apply:
(i) The term "base tax year" as hereinafter set forth for the
determination of real estate tax escalation, shall mean the New York City real
estate tax year commencing July 1, 1997 and ending June 30, 1998.
(ii) The term "The Percentage", for purposes of computing tax escalation,
shall mean ONE AND SIXTY-ONE HUNDREDTHS OF ONE percent (1.61%). The Percentage
has been computed on the basis of a fraction, the numerator of which is the
rentable square foot area of the demised premises and the denominator of which
is the total rentable square foot area of the office and commercial space in the
building project. The parties acknowledge and agree that the total rentable
square foot area of the office and commercial space in the building project
shall be deemed to be 505,591 sq. ft.
(iii) The term "the building project" shall mean the aggregate combined
parcel of land on a portion of which are the improvements of which the demised
premises form a part, with all the improvements thereon, said improvements being
a part of the block and lot for tax purposes which are applicable to the
aforesaid land.
(iv) The term "comparative year" shall mean the twelve (12) months
following the base tax year, and each subsequent-Period of twelve (12) months
(or such other Period of twelve (12) months occurring during the term of this
lease as hereafter may be duly adopted as the tax year for real estate tax
purposes by the City of New York).
(v) The term "real estate taxes" shall mean the total of all taxes and
special or other assessments levied, assessed or imposed at any time by any
governmental authority upon or against the building project, and also any tax or
assessment levied, assessed or imposed at any time by any governmental authority
in connection with the receipt of income or rents from said building project to
the extent that same shall be in lieu of all or a portion of any of the
aforesaid taxes or assessments, or additions or increases thereof, upon or
against said building project. If, due to a future change in the method of
taxation or in the taxing authority, or for any other reason, a franchise,
income, transit, profit or other tax or governmental imposition, however
designated, shall be levied against Landlord in substitution in whole or in part
for the real estate taxes, or in lieu of additions to or increases of said real
estate taxes, then such franchise, income, transit, profit or other tax or
governmental imposition shall be deemed to be included within the definition of
"real estate taxes" for the purposes hereof. As to special assessments which are
payable over a period of time extending beyond the term of this lease, only a
pro rata portion thereof covering the portion of the term of this lease
unexpired at the time of the imposition of such assessment, shall be included in
"real estate taxes". If by law, any assessment may be paid in installments,
then, for the purposes hereof (a) such assessment shall be deemed to have been
payable in the maximum number of installments permitted by law and (b) there
shall be included in real estate taxes, for each comparative year in which such
installments may be paid, the installments of such assessment so becoming
payable during such comparative year, together with interest payable during such
comparative year.
(vi) Where more than one assessment is imposed by the City of New York for
any tax year, whether denominated an "actual assessment" or a "transitional
assessment" or otherwise, then the phrases herein "assessed value" and
"assessments" shall mean whichever of the actual, transitional or other
assessment is designated by the City of New York as the taxable assessment for
that tax year.
(vii) The phrase "real estate taxes payable during the base tax year"
shall mean that amount obtained by multiplying
20
the assessed value of the land and buildings of the building project for the
base tax year by the tax rate for the base tax year for each $100 of such
assessed value.
(C) 1. In the event that the real estate taxes payable for any comparative
year shall exceed the amount of the real estate taxes payable during the base
tax year, Tenant shall pay to Landlord, as additional rent for such comparative
year, an amount equal to The Percentage of the excess. Before or after the start
of each comparative year, Landlord shall furnish to Tenant a statement of the
real estate taxes payable for such comparative year, and a statement of the real
estate taxes payable during the base tax year. If the real estate taxes payable
for such comparative year exceed the real estate taxes payable during the base
tax year, additional rent for such comparative year, in an amount equal to The
Percentage of the excess, shall be due from Tenant to Landlord, and such
additional rent shall be payable by Tenant to Landlord within ten (10) days
after receipt of the aforesaid statement. The benefit of any discount for any
earlier payment or prepayment of real estate taxes shall accrue solely to the
benefit of Landlord, and such discount shall not be subtracted from the real
estate taxes payable for any comparative year.
Additionally, Tenant shall pay to Landlord, on demand, a sum equal to The
Percentage of any business improvement district assessment payable by the
building project.
2. Should the real estate taxes payable during the base tax year be
reduced by final determination of legal proceedings, settlement or otherwise,
then, the real estate taxes payable during the base tax year shall be
correspondingly revised, the additional rent theretofore paid or payable
hereunder for all comparative years shall be recomputed on the basis of such
reduction, and Tenant shall pay to Landlord as additional rent, within ten (10)
days after being billed therefor, any deficiency between the amount of such
additional rent as theretofore computed and the amount thereof due as the result
of such recomputations. Should the real estate taxes payable during the base tax
year be increased by such final determination of legal proceedings, settlement
or otherwise, then appropriate recomputation and adjustment also shall be made.
3. If after Tenant shall have made a payment of additional rent under this
subdivision (c), Landlord shall receive a refund of any portion of the real
estate taxes payable for any comparative year after the base tax year on which
such payment of additional rent shall have been based, as a result of a
reduction of such real estate taxes by final determination of legal proceedings,
settlement or otherwise, Landlord shall within ten (10) days after receiving the
refund pay to Tenant The Percentage of the refund less The Percentage of
expenses (including attorneys' and appraisers' fees) incurred by Landlord in
connection with any such application or proceeding. If prior to the payment of
taxes for any comparative year, Landlord shall have obtained a reduction of that
comparative year's assessed valuation of the building project, and therefore of
said taxes, then the term "real estate taxes" for that comparative year shall be
deemed to include the amount of Landlord's expenses in obtaining such reduction
in assessed valuation, including attorneys' and appraisers' fees.
4. The statements of the real estate taxes to be furnished by Landlord as
provided above shall be certified by Landlord and shall constitute a final
determination as between Landlord and Tenant of the real estate taxes for the
Periods represented thereby, unless Tenant within thirty (30) days after they
are furnished shall give a written notice to Landlord that it disputes their
accuracy or their appropriateness, which notice shall specify the particular
respects in which the statement is inaccurate or inappropriate. If Tenant shall
so dispute said statement then, pending the resolution of such dispute, Tenant
shall pay the additional rent to Landlord in accordance with the statement
furnished by Landlord.
5. In no event shall the fixed annual rent under this lease (exclusive of
the additional rents under this Article) be reduced by virtue of this Article.
6. If the commencement date of the term of this lease is not the first day
of the first comparative year, then the additional rent due hereunder for such
first comparative year shall be a proportionate share of said additional rent
for the entire comparative year, said proportionate share to be based upon the
length of time that the lease term will be in existence during such first
comparative year. Upon the date of any expiration or termination of this lease
except termination because of Tenant's default) whether the same be the date
hereinabove set forth for the expiration of the term or any prior or subsequent
date, a proportionate share of said additional rent for the comparative year
during which such expiration or termination occurs shall immediately become due
and payable by Tenant to Landlord, if it was not theretofore already billed and
paid. The said proportionate share shall be based upon the length of time that
this lease shall have been in existence during such comparative year. Landlord
shall promptly cause statements of said additional rent for that comparative
year to be prepared and furnished to Tenant. Landlord and Tenant shall thereupon
21
make appropriate adjustments of amounts then owing.
7. Landlord's and Tenant's obligations to make the adjustments referred to
in subdivision (6) above shall survive any expiration or termination of this
lease.
8. Any delay or failure of Landlord in billing any tax escalation
hereinabove provided shall not constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay such tax escalation hereunder.
OCCUPANCY AND USE BY TENANT
FIFTY-NINTH: -- (A) Tenant acknowledges that its continued occupancy of
the demised premises and the regular conduct of its business therein, are of
utmost importance to the Landlord in the renewal of other leases in the
building, in the renting of vacant space in the building, in the providing of
electricity, air conditioning, steam and other services to the tenants in the
building, and in the maintenance of the character and quality of the tenants in
the building. Tenant therefore covenants and agrees that it will occupy the
entire demised premises and will conduct its business therein in the regular and
usual manner, throughout the term of this lease, Tenant acknowledges that
Landlord is executing this lease in reliance upon these covenants and that these
covenants are a material element of consideration inducing Landlord to execute
this lease. Tenant further agrees that if it vacates the demised premises or
fails to so conduct its business therein at any time during the term of this
lease, without the prior written consent of the Landlord, then all rent and
additional rent reserved in this lease from the date of such breach to the
expiration date of this lease shall become immediately due and payable to
Landlord.
(B). The parties recognize and agree that the damage to Landlord resulting
from any breach of the covenants in subdivision (A) hereof will be extremely
substantial, will be far greater than the rent payable for the balance of the
term of this lease, and will be impossible of accurate measurement. The parties
therefore agree that in the event of a breach or threatened breach of the said
covenants, in addition to all of Landlord's other rights and remedies, at law,
or in equity or otherwise, Landlord shall have the right of injunction to
preserve Tenant's occupancy and use. The words "become vacant or deserted" as
used elsewhere in this lease shall include Tenant's failure to occupy or use as
by this Article required.
(C). If Tenant breaches either of the covenants in subdivision (A) above,
and this lease be terminated because of such default, then, in addition to
Landlord's rights of re-entry, restoration, preparation for and rerental, and
anything elsewhere in this lease to the contrary notwithstanding, Landlord shall
retain its right to judgment on and collection of Tenant's aforesaid obligation
to make a single payment to Landlord of a sum equal to the total of all rent and
additional rent reserved for the remainder of the original term of this lease,
subject to future credit or repayment to Tenant in the event of any rerenting of
the premises by Landlord, after first deducting from rerental income all
expenses incurred by Landlord in reducing to judgment or otherwise collecting
Tenant's aforesaid obligation, and in obtaining possession of, restoring,
preparing for and re-letting the premises. In no event shall Tenant be entitled
to a credit or repayment for rerental income which exceeds the sums payable by
Tenant hereunder or which covers a period after the original term of this lease.
(D). If any provision of this Article of this lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Article, or the application of such
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each provision of
this Article and of this lease shall be valid and be enforced to the fullest
extent permitted by law.
SIXTIETH: -- The Landlord shall be under no obligation to provide access
between the "A" Wing and the "B" Wing on the floor of the premises demised
herein, and any passageways which may now or hereafter exist between said wings
may be discontinued at any time at the discretion of the Landlord.
CAPTIONS
SIXTY-FIRST: -- The captions are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
lease nor the intent of any provision thereof.
RULES AND REGULATIONS
SIXTY-SECOND: -- Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations and such other and further reasonable Rules and
Regulations as Landlord or Landlord's agents may from time to time adopt. Notice
of any additional rules or regulations shall be given in such manner as Landlord
may elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Landlord or Landlord's agents, the
parties hereto agree to submit the question of the reasonableness of such Rule
or Regulation for decision to the
22
Chairman of the Board of Directors of the Management Division of The Real Estate
Board of New York, Inc., or to such impartial person or persons as he may
designate, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice in writing upon Landlord within ten (10) days
after the adoption of any such additional Rule or Regulation Nothing in this
lease contained shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Landlord shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees.
The use in the demised premises of auxiliary heating devices, such as
portable electric heaters, heat lamps or other devices whose principal function
at the time of operation is to produce space heating, is prohibited.
SIXTY-THIRD: -- It is understood and agreed that this lease is submitted
to Tenant on the understanding that it shall not be considered an offer and
shall not bind Landlord in any way until (i) Tenant has duly executed and
delivered duplicate originals to Landlord and (ii) Landlord has executed and
delivered one of said originals to Tenant.
23
ADDITIONAL CLAUSES attached to and forming a part of lease dated April 23, 1997
between 000/000 XXXXXXX XXXXXX ASSOCIATES and BET STUDIO LLC.
SIXTY-FOURTH: It is understood and agreed Tenant shall be permitted
to list its firm name or divisions of its firm but no more than THREE (3)
listing in the lobby board of the building. The charge to Tenant shall be
$75.00 per listing plus tax, per side of building or the charge then in effect.
SIXTY-FIFTH: Landlord and Tenant hereby agree that upon the execution
of this lease, Tenant shall receive possession of the demised premises and may
occupy it free of base rent for the period from May 1, 1997 through January 31,
1998, subject however to all of the other terms, conditions, set forth in this
lease other than the payment of base rent. Miscellaneous charges and electric
begin May 1, 1997.
(a) Notwithstanding any of the foregoing it is expressly
understood and agreed that the monthly rent and additional rent payments for the
demised premises shall begin on February 1, 1998 whether or not Tenant has
completed its Initial Alteration Work.
SIXTY-SIXTH: Anything in Article FIFTY-SEVENTH to the
contrary notwithstanding, the cost of living adjustment of the fixed annual
rental rate computed as provided in said article FIFTY-SEVENTH, which shall be
payable for any single calendar year, or for any portion thereof, shall not
exceed an amount equal to four percent (4%) of the fixed annual rental rate
payable under this lease as of December 1st or of the immediately preceding
calendar year (including any adjustments under article FIFTY-SEVENTH.)
Please note that this limitation is intended to operate as
follows: If the Base Year fixed annual rental rate is $10,000, and the
percentage limitation is, say 4% then the maximum escalation for the first
calendar year following the Base Year is 4% x $10,000, or $400 (for a maximum
rental of $10,400); the maximum escalation for the second calendar year
following the Base Year is 4% x $10,410, or $416 (for a maximum rental of
$10,816); for the third year, the maximum, escalation is 4% x $10,816, or
$432.64 (for a maximum rental of $11,248.64), etc.
SIXTY-SEVENTH: Tenant shall perform all initial alteration work to
make the demised premises suitable and ready for Tenant's occupancy and use (the
"Initial Alteration Work"). Tenant shall, within sixty (60) days after the
execution of this Lease by Tenant, furnish Landlord for its approval a complete
set of architectural and engineering plans and specifications for such work
including air conditioning. Landlord, promptly upon receipt of same, shall
approve such plans and specifications, or return them with advice as to what
changes are required for its approval to be forthcoming.
Tenant, at its own cost and expense (except as herein
provided), will cause the Initial Alteration Work to be effected in accordance
with Tenant's approved plans and specifications, pursuant to the provisions of
Article Twelfth and Fifteenth, as supplemented by Article Sixteenth, hereof, and
in accordance with all applicable laws, rules and regulation.
Tenant as part of its Initial Alteration Work will install an
air conditioning unit or units sufficient to air condition all or part of the
demised premises. In connection therewith Tenant agrees to pay as Additional
Rent an Electric Riser Charge of $5.00 per ton, per month for each unit.
/s/ I.S. /s/ A.L.F.
--------------------------------------------------------------------------------
LANDLORD TENANT
ADDITIONAL CLAUSES attached to and forming a part of lease dated April 23, 1997
between 000/000 XXXXXXX XXXXXX ASSOCIATES and BET STUDIO LLC.
SIXTY-EIGHTH: Provided Tenant is not then in material default under
this Lease beyond any grace period, Landlord will pay up to the first
$163,000.00 ("Landlord's Work Contribution") of the costs of construction
labor and materials, excluding the costs of Tenant's personal property, in
effecting the Initial Alteration Work. If such costs are lower then
$163,000.00, the Landlord's aforedescribed contribution obligation shall
be satisfied by its paying such amount lower than $163,000.00. Any such
costs in excess of $163,000.00 shall be paid promptly by Tenant.
In connection with the Initial Alternation Work, Tenant shall
provided Landlord with true copies of paid construction bills, showing the cost
of the items of the Initial Alteration Work to be included in the aforesaid
total up to $163,000.00 and Landlord shall reimburse Tenant for the amount set
forth in said bills in accordance with Landlord's obligation hereunder within
twenty (20) days unless Landlord requests further verification of payment.
SIXTY-NINTH: Anything to the contrary contained in Article
THIRTY-FIFTH notwithstanding, should Landlord elect not to give such notice
of termination and the demised premises are not restored so that Tenant may
resume its regular course of business operations within 180 days after such
fire or other cause, Tenant shall have the right to give Landlord a notice in
writing of termination, which notice shall be given as provided in this lease
and thereupon the term of this Lease shall expire by lapse of time of the
third day after such notice is given, and Tenant shall vacate the demised
premises and surrender same to Landlord
SEVENTIETH: It is understood and agreed that the Landlord at its own
cost and expense will do the following work for Tenant in the demised premises:
(1) Bathrooms will be cosmetically renovated in building standard
manner.
(2) All leaks are to be fixed.
/s/ I.S. /s/ A.L.F.
--------------------------------------------------------------------------------
LANDLORD TENANT
In Witness Whereof, Landlord and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
000/000 XXXXXXX XXXXXX ASSOCIATES
HELMSLEY-SPEAR, INC., AGENTS
--------------------------------------- -------------------------------------
Witness for Landlord:
BY: /s/ XXXXXX XXXXXXXXX
-------------------------------------
EXECUTIVE VICE PRESIDENT
BET STUDIO LLC
-------------------------------------- -------------------------------------
Witness for Tenant: TENANT
PLEASE PRINT NAME AND HOME ADDRESS OF
PRINCIPAL WHO WILL EXECUTE THIS LEASE
BELOW:
Xxxx Xxxxxx BY: /s/ XXXX XXXXXX
-------------------------------------- -------------------------------------
TITLE: SECRETARY/TREASURER
-------------------------------------- -------------------------------------
--------------------------------------ACKNOWLEDGEMENTS.
LANDLORD
State of New York )
County of New York ) ss:
On this day of , 19 , before me personally came
, to me known and known to me to be a partner
of , a co-partnership, mentioned and described in, and
which executed the foregoing instrument, and the said duly
acknowledged to me that he executed the said instrument for and on behalf of and
with the authority of said for the uses and purposes therein
mentioned.
--------------------------------
INDIVIDUAL TENANT
State of New York )
County of New York ) ss:
On this day of , 19 , before me personally came
, to me known and known to me to be the
individual who executed, the foregoing instrument, and acknowledged to me that
he executed the same.
--------------------------------
PARTNERSHIP TENANT
State of New York )
County of New York ) ss:
On this day of , 19 , before me personally came
, to me known and known to me to be a partner
of , a co-partnership, mentioned and described in, and
which executed the foregoing instrument, and the said duly
acknowledged to me that he executed the said instrument for and on behalf of and
with the authority of said for the uses and purposes therein
mentioned.
--------------------------------
CORPORATE TENANT
State of New York )
County of New York ) ss:
On this day of , 19 , before me personally came
, to me known, who being by me duly sworn, did
depose and say that he resides at , that he is the
of the corporation described in and
which executed the foregoing instrument, and that he signed his name thereto by
order of the Board of Directors of said corporation.
--------------------------------
24
GUARANTY.
For Value Received, and in consideration for, and as an inducement to
Landlord making the foregoing lease with Tenant, the undersigned guarantees to
Landlord, its successors and assigns, the full performance and observance of all
the covenants, conditions and agreements, including the "Rules and Regulations",
therein provided to be performed and observed by Tenant, without requiring any
notice or proof of non-payment, non-performance, or non-observance, and without
demand, to charge the undersigned therefor, all of which the undersigned hereby
expressly waives.
The undersigned further covenants and agrees: (a) that the validity of
this agreement and its obligations hereunder shall in no wise be terminated,
affected or impaired by reason of the assertion by Landlord against Tenant of
any of the rights or remedies reserved to Landlord pursuant to the provisions of
the within lease: (b) that this guaranty shall remain and continue in full force
and effect as to any renewal, modification or extension of the within lease.
As a further inducement to Landlord to make the within lease and in
consideration thereof, Landlord and the undersigned covenant and agree that in
any action or proceeding or counterclaim brought by either against the other on
any matters whatsoever arising out of, under, or in any way connected with said
lease or this guaranty, or by virtue of the terms thereof, Landlord and the
undersigned shall and do hereby waive trial by jury.
Dated, New York City_______________, 19__
________________________________________ _____________________________________
Witness
________________________________________ _____________________________________
Address
State of New York )
County of New York ) ss.:
On this day of , 19 , before me
personally came
to me known and known to me to be the individual described in, and who executed
the foregoing Guaranty and acknowledged to me that he executed the same.
_____________________________________
Notary Public
25
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than ingress and egress to and from the
demised premises, and if said premises are situate on the ground floor of the
building the Tenant thereof shall further, at said Tenant's own expense, keep
the sidewalks and curb directly in front of said premises clean and free from
ice, snow, etc.
2. The freight and not the passenger elevators shall be used by the
working hands of Tenant and persons calling for and delivering goods to and from
the demised premises.
3. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Landlord. No curtains,
blinds, shades or screens shall be attached to or hung in, or used in connection
with, any window or door of the demised premises, without the prior written
consent of the Landlord. Such awnings, projections curtains, blinds, shades,
screens or other fixtures must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
4. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside or inside
of the demised premises or building without the prior written consent of
Landlord. Interior signs on doors shall be inscribed, painted or affixed for
each Tenant by Landlord at the expense of such Tenant, and shall be of a size,
color and style acceptable to Landlord. Only the Tenant named in the lease shall
be entitled to appear on the Directory Board or Tablet. Additional names may be
added in Landlord's sole discretion under such terms and conditions as he may
approve.
5. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
building shall not be covered by any Tenant, nor shall any bottles, parcels, or
other articles be placed on the windowsills.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by Tenant who,
or whose servants, employees, agents, visitors or licensees, shall have caused
the same.
7. No Tenant shall xxxx, paint, drill into, or in any way deface any part
of the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as Landlord may direct. No linoleum or other floor
covering shall be laid in direct contact with the floor of the demised premises,
but if any such covering is required by Tenant, an interlining of builder's
deadening felt shall first be affixed to the floor with paste or other water
soluble material, the use of cement or other adhesive non-soluble in water is
expressly prohibited.
8. No Tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring buildings
or premises or those having business with them whether by the use of any
instrument, radio, talking machine, musical noise, whistling, singing or in any
other way.
9. No Tenant, nor any of Tenant's servants, employees, agents, visitors,
or licensees, shall at any time bring or keep upon the demised premises any
inflammable, combustible or explosive fluid, chemical and substance, or cause or
permit any unusual or objectionable odors to be produced upon or permeate from
the demised premises. No animals or birds shall be kept by Tenant in or about
the building.
10. Landlord reserves the right to inspect all freight to be brought into
the building and to exclude from the building all freight which violates any of
these Rules and Regulations or the lease of which these Rules and Regulations
are a part.
11. Landlord shall have the right to prohibit any advertising by any
Tenant which, in its opinion, tends to impair the reputation of the building or
its desirability and, upon written notice from Landlord, Tenant shall refrain
from or discontinue such advertising.
12. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall co-operate to prevent the same.
13. There shall not be used in any space, or in the public halls of any
building, either by any Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
14. No Tenant shall purchase spring water, ice, towels, or other like
service, from any company or persons not approved by Landlord.
15. The use in the demised premises of auxiliary heating devices, such as
portable electric heaters, heat lamps or other devices whose principal function
at the time of operation is to produce space heating, is prohibited.
26
