Exhibit 10.3
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STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York
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Agreement of Lease, made this 8th day of May 1996, between
IRVING REALTY CO, with offices at: 00 Xxxxxxxx Xxxx X.
Xxx Xxxx, XX 00000
party of the first part, hereinafter referred to as LANDLORD, and
XXXXXX XXXXX ASSOCIATES, INC. with offices at: 00 Xxxx 00xx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Witnesseth: Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord
The entire ELEVENTH (11th) Floor, (The "demised premises")
in the building known as 00 Xxxx 00xx Xxxxxx, XX, XX 00000 (the "building")
in the borough of Manhattan, City of New York, for the term of Seven (7) years
(the "term")
(or until such term shall sooner cease and expire as hereinafter
provided), to commence on the 1st day of June nineteen hundred and ninety six,
and to end on the 31st day of May Two thousand and three, both dates inclusive,
at an annual rental rate of __________: See attached Rider A, Article Thirty-
Eight (#38)
which Tenant agrees to pay in lawful money of the United which shall be legal
tender in payment of all debts and dues, public and private, at the time of
payment, in equal monthly installments in advance on the first day of each month
during said term, at the office of Landlord or such other place as Landlord may
designate, without any set or deduction whatsoever, except that Tenant shall pay
the first (____)monthly installment(s) on the execution hereof (unless this
lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to 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 sold the amount of such arrearages to any monthly installment of rent
payable hereunder and the same shall be payable to Landlord as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent:
1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy:
2. Tenant shall use and occupy demised premises for general offices
use in connection with publishing business and for no other purpose.
Alterations:
3. Tenant shall make no changes in or to the described premises of
any nature without Landlord's prior written consent. Subject to the prior
written consent of Landlord, and to the provisions of this article, Tenant at
Tenant's expense, may make alterations, installations, additions or improvements
which are nonstructural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanic first approved by Landlord. All fixtures and all
paneling, partitions, railings and like installations, installed in the premises
at any time, either by Tenant or by Landlord on Tenant's behalf, shall, upon
installation, become the property of Landlord and shall remain upon and be
surrendered with the demised premises unless Landlord, by notice in Tenant no
later than twenty days prior to the date fixed as the termination of this lease,
offers to relinquish Landlord's right thereto and to have them removed by
Tenant, in which event, the same shall be removed from the premises by Tenant
prior to the expiration of the lease at Tenant's expense. Nothing in this
article shall be construed to give Landlord title to or to prevent Tenant's
removal of trade fixtures, removable office furniture and equipment, but upon
removal of any such from the premises or upon removal of other installations as
may be required by Landlord, Tenant shall immediately and at its expense, repair
and restore the premises to the condition existing prior to installation and
repair any damage to the demised premises or the building caused in such
removal. All property permitted or required to be removed by Tenant at the end
of the term remaining in the premises after Tenant's removal shall be deemed
abandoned and may, at the election of Landlord, either be retained as
Landlord's property or may be removed from the premises by Landlord at Tenant's
expense. Tenant shall, before making any alterations, additions, installations
or improvements, at its expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof and shall deliver promptly duplicates of
all such permits, approvals and certificates to Landlord and Tenant agrees to
carry and will cause Tenant's contractors and sub-contractors to carry such
xxxxxxx'x compensation, general liability, personal and property damage
insurance as Landlord may require. If any mechanic's lien is filed against the
demised premises, or the building of which the same forms a part, for work
claimed to have been done for, or materials furnished to, Tenant., whether or
not done pursuant to this article, the same shall be discharged by Tenant within
ten days thereafter, at Tenant's expense, by filing the bond required by law.
Repair:
4. Landlord shall maintain and repair the public portions of the
building, both exterior and interior. Tenant shall, throughout the term of this
lease, take good care of the demised premises and the fixtures and appurtenances
therein and at Tenant's sole cost and expense, make all nonstructural repairs
thereto as and when needed to preserve them in good working order and condition,
reasonable wear and tear, obsolescence and damage from the
elements, fire or other casualty, excepted. Notwithstanding the foregoing, all
damages or injury to the demised premises or to any other part of the building,
or to is fixtures, equipment and appurtenances, whether requiring structural or
nonstructural repairs, caused by or resulting from carelessness, omission,
neglect or improper conduct of Tenant, Tenant's servants, employees, invitees or
licensees, shall be repaired promptly by Tenant at its sole cost and expense, to
the satisfaction of Landlord reasonably exercised. Tenant shall also repair all
damage to the building a nd the demised premises caused by the moving of
Tenant's fixtures, furniture or equipment. All the aforesaid repairs shall be of
quality or class equal in the original work or construction. If Tenant fails
after ten days notice to proceed with due diligence to make repairs required to
be made by Tenant, the same may be made by the Landlord at the expense of Tenant
and the expenses thereof incurred by Landlord shall be collectible as additional
rent after rendition of a xxxx or statement therefor. If the demised premises be
or becomes infested with vermin, Tenant shall at Tenant's expense, cause the
same to be exterminated from time to time to the satisfaction of Landlord.
Tenant shall give Landlord prompt notice of any defective condition in any
plumbing, heating system or electrical lines located in, servicing or passing
through the demised premises and following such notice, Landlord shall remedy
the condition with due diligence but at the expense of Tenant, if repairs are
necessitated by damage or injury attributable to Tenant, Tenant's servants,
agents, employees, invitees or licensees as aforesaid. Except as specifically
provided in Article 9 or elsewhere in the lease, there shall be no allowance to
the 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 or failing to make any repairs,
alterations, additions or improvements in or to any portion of the building or
the demised premises or in and to the fixtures, appurtenances or equipment
thereof. The provisions of this Article 4 with respect to the making of repairs
shall not apply in the case of fire or other casualty which are dealt with in
Article 9 hereof.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any
window in the demised premises to be cleaned from the outside in violation of
Section 202 of the New York State Labor law or any other applicable law or of
the Rules of the Board of Standards and Appeals, or of any other Board or body
having or asserting jurisdiction
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant, at Tenant's sole cost and
expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire Underwriters
or any similar body which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the demised premises whether or not arising
out of Tenant's use or manner of use thereof, or with respect to the building or
arising out of Tenant's use or manner of use of the premises or the building
(including the use permitted under the law). Except as provided in Article 9
hereof, nothing herein shall require Tenants to make structural repairs or
alterations unless Tenant has by its manner of use of the demised premises or
method of operation herein, violated any such laws, ordinances, orders, rules
regulations or requirements with respect thereto. Tenant may, after insuring
Landlord to Landlord's satisfaction against all damages, interest, penalties and
expenses, including, but not limited to, reasonable attorney's fees, by cash
deposit or by surety bond in an amount and in a company satisfactory to
Landlord, contest and appeal any such laws, ordinances, orders, rules
regulations or requirements provided same is done with all reasonable promptness
and provided such appeal shall not subject Landlord to prosecution for a
criminal offense or constitute a default under any lease or mortgage under which
Landlord may be obligated, or cause the demised premises or any part thereof to
be condemned or vacated, Tenant shall not do or permit any act or thing to be
done in or to the demised premises which is contrary to law, or which will
invalidate or be in conflict with public liability, fire or other policies or
insurance at any time carried by or for the benefit of Landlord with respect to
the demised premises which is contrary to law, or which will invalidate or be in
conflict with public liability, fire or other policies of insurance at any time
carried by or for the benefit of Landlord with respect to the demised premises
or the building of which the demised premises form a part, or which shall or
might subject Landlord to any liability or responsibility in any person or for
property damage, nor shall Tenant keep anything in the demised premises except
as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization or other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable in the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties or
damages, which may be imposed upon Landlord by reason of Tenant's failure to
comply with the provisions of this article and if by reason of such failure the
fire insurance rate shall, at the beginning o 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 portion of all fire insurance
premiums thereafter paid by Landlord which shall have been charged because of
such failure 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 applicable to 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 place a load upon any floor of the demised premises exceeding the
floor load per square foot area which it was designed to carry and which is
allowed by law. Landlord reserves the right to prescribe the weight and
position of all sofas, business machines and mechanical equipment. Such
installation 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.
Subordination:
7. This lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such leases or the
real property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and
no further instrument of subordination shall be required by any ground or
underlying lessee or by any mortgage, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Landlord may request.
Property - Loss, Damage, Reimbursement, Indemnity:
8. Landlord or its agents shall not be liable for any damages to property
of Tenant or of others entrusted to employees of the building, nor for loss of
or damage to any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by or due to the negligence of 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, upon or about said building or caused by
operations in construction of any private, public or quasi public work. If at
any time any windows of the demised premises are temporarily closed, darkened or
bricked up (or permanently closed, darkened or bricked up, if required by law)
for any reason whatsoever including, but not limited to Landlord's own acts,
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor nor abatement or
diminution of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall not move any safe, heavy
machinery, heavy equipment, bulky matter, or fixtures into or out of the
building without Landlord's prior written consent. If such safe, machinery,
equipment, bulky matter or fixtures requires special handling, all work in
connection therewith shall comply with the Administrative Code of the City of
New York and all other laws and regulations applicable thereto and shall be done
during such hours as Landlord may designate. Tenant shall indemnify and save
harmless Landlord against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses for which Landlord shall not be reimbursed
by insurance, including reasonable attorneys fees, paid, suffered or incurred as
a result of any breach by Tenant, Tenant's agents, contractors, employees,
invitees, or licenses, of any covenant or condition of this lease, or the
carelessness, negligence or improper conduct of the Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any subtenant, and any agent,
contractor, employee, invitee or licensees. Tenant's liability under this lease
extends to the acts and omissions of any subtenant, and any agent, contractor,
employee, invitee or licensee of any sub-tenant. In case any action or
proceeding is brought against Landlord by reason of any such claim, Tenant, upon
written notice from Landlord, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Landlord in writing, such approval
not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice thereof to
Landlord and this lease shall continue in full force and effect except as
hereinafter set forth. (b) If the demised premises are partially damaged or
rendered partially unusable by fire or other casualty, the damages thereto shall
be repaired by and at the expense of Landlord and the rent, until such repair
shall be substantially completed, shall be apportioned from the day following
the casualty according to
the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the premises shall have been
repaired and restored by Landlord, subject to Landlord's right to elect not to
restore the same as hereinafter provided. (d) If the demised premises are
rendered wholly unusable or (whether or not the demised premises are damaged in
whole or in part) if the building shall be so damaged that Landlord shall decide
to demolish it or to rebuild it, then, in any of such events, Landlord may elect
to terminate this lease by written notice to Tenant given within 90 days after
such fire or casualty specifying a date for the expiration of the lease, which
date shall not be more than 60 days after the giving of such notice, and upon,
the date specified in such notice the term of this lease shall expire as fully
and completely as if such date were the date set forth above for the termination
of this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Landlord's rights and remedies against Tenant
under the lease provisions in effect prior to such termination, and any rent
owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Landlord shall serve a termination notice as provided for herein,
Landlord shall make the repairs and restorations under the conditions of (b) and
(c) hereof, with all reasonable expedition subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Landlord's control. After
any such casualty, Tenant shall cooperate with Landlord's restoration by
removing from the premises as promptly as reasonably possible, all of Tenant's
salvageable inventory and movable equipment, furniture, and other property.
Tenant's liability for rent shall resume five (5) days after written notice from
Landlord that the premises are substantially ready for Tenant's occupancy. (e)
Nothing contained hereinabove shall relieve Tenant from liability that may exist
as a result of damage from fire or other casualty. Notwithstanding the
foregoing, each party shall look first to any insurance in its favor before
making any claim against the other party for recovery for loss or damage
resulting from fire or other casualty, and to the extent that such insurance is
in force and collectible and to the extent permitted by law, Landlord and Tenant
each hereby releases and waives all right of recovery against the other or any
one claiming through or under each of them by way of subrogation or otherwise.
The foregoing release and waiver shall be in force only if both releasors'
insurance policies contain a clause providing that such a release or waiver
shall not invalidate the insurance and also, provided that such a policy can be
obtained without additional premiums. Tenant acknowledges that Landlord will not
carry insurance on Tenant's furniture and/or furnishings or any fixtures or
equipment, improvements, or appurtenances removable by Tenant and agrees that
Landlord will not be obligated to repair any damage thereto or replace the name.
(f) Tenant hereby waives the provisions of Section 227 of the Real Property Law
and agrees that the provisions of this article shall govern and control in lieu
thereof.
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease.
Assignment, Mortgages, Etc.:
11. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used by others, without the prior written consent of Landlord in each instance.
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 way be construed to relieve Tenant from obtaining
the express consent in writing of Landlord to any further assignment or
underletting.
Electric Current:
12. Rates and conditions in respect to submetering or rent inclusing,
as the case may be, to be added in RIDER attached hereto. Tenant covenatns and
agrees that at all times its use of electric current shall not exceed the
capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in
Landlord's opinion, reasonably exercised, will overload such installations or
interfere with the use thereof by other tenants of the building. The change at
any time of the character of electric servie shall in no wise make Landlord
liable or responsible to Tenant, for any loss, damages or expenses which Tenant
may sustain.
Access to Premises:
13. Landlord or Landlord's agent shall have the right (but shall not
be obligated) to enter the demised premises in any emergency at any time, and,
at other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Landlord may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Landlord may elect to perform following Tenant's failure to make repairs
or perform any work which Tenant is obligated to perform under this lease, or
for the purpose of complying with laws, regulations and other directions of
governmental authorities. Tenant shall permit Landlord to use and maintain and
replace pipes and conduits in and through the demised premises and to erect new
pipes and conduits therein. Landlord may, during the progress of any work in
the demised premises, take all necessary materials and equipment into said
premises without the same constituting an eviction nor shall the Tenant be
entitled to any abatement or rent while such work is in progress nor to any
damages by reason of loss or interruption of business or otherwise. Throughout
the term hereof Landlord shall have the right to enter the demised premises at
reasonable hours for the purpose of showing the same to prospective purchasers
or mortgagees of the building, and during the last six months of the term for
the purpose of showing the same to prospective tenants and may, during said six
month period, place upon the premises usual notices "To Let" and "For Sale"
which notices to Tenant shall permit to
remain thereon without molestation. If Tenant is not present to open and permit
an entry into the premises, Landlord or Landlord's agents may enter the same
whenever such entry may be necessary or permissible by master key or forcibly
and provided reasonable care is exercised to safeguard Tenant's property and
such entry shall not render Landlord or its agents liable therefor, not in any
event shall the obligations of Tenant hereunder be affected. If during the last
month of the term Tenant shall have removed all or substantially all of Tenant's
property therefrom, Landlord may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant therefor to change the arrangement and/or location
of public entrances, passageways, doors, doorways, corridors, elevators, stairs,
toilets, or other public parts of the building and to change the name, number or
designation by which the building may be known.
Vault, Vault Space, Area:
14. No Vaults, vault space or area, whether or not enclosed or covered,
not within the property line of the building is leased hereunder, anything
contained in or indicated on any sketch, blue print or plan, or anything
contained elsewhere in this lease to the contrary notwithstanding. Landlord
makes no representation as to the location of the property line of the building.
All vaults and vault space and all such areas not within the property line of
the building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility. Landlord shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises and accepts them
as is, subject to the riders annexed hereto with respect to Landlord's work, if
any. In any event, Landlord makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations whether or
not of record.
Bankruptcy:
16. (a) 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 by
or against Tenant in any court pursuant to any statute either of the United
States or of any state, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, and within 60 days thereof, Tenant fails to secure
a dismissal thereof, or if Tenant make 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 by
written
notice to the Tenant (but if any of such events occur prior to the commencement
date, this lease shall be ipso facto cancelled and terminated) and whether such
cancellation and termination occur prior to or during the term, neither Tenant
nor any person claiming through or under Tenant by virtue of any statute or of
any 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 moneys received by him from Tenant or others in
behalf of Tenant. If this lease shall be assigned in accordance with its terms,
the provisions of his Article 16 shall be applicable only to the party then
owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, 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 of r the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be re-let by the 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 deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Landlord to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease other than the covenants for the payment of rent or additional rent; or if
the demised premises become vacant or deserted; or if the demised premises are
damaged by reason of negligence or carelessness of Tenant, its agents, employees
or invitees; or if any execution or attachment shall be issued against Tenant or
any of Tenant's property whereupon the demised premises shall be taken or
occupied by someone other than Tenant; or if Tenant shall make default with
respect to any other lease between Landlord and Tenant; or if Tenant shall fail
to move into or take possession of the premises within fifteen (15) days after
the commencement of the term of this lease, of which fact Landlord shall be the
sole judge; 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 a nature that the same cannot be completely cured or
remedied within said five (5) day period, and if Tenant
shall not have diligently commenced curing such default within such five (5) day
period, and shall not thereafter with reasonable diligence and in good faith
proceed to remedy or cure such default, then 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 thereof 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.
(2) If the notice provided for in (1) hereof shall have been given,
and the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional payment herein
required; then and in any of such events Landlord may without notice, re-enter
the demised premises either by force or otherwise, and dispossess Tenant by
summary proceedings or otherwise, and the legal representative of Tenant or
other occupant of demised premises and remove their effects and hold the
premises as if this lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal proceedings to
that end. If Tenant shall make default hereunder prior to the date fixed as the
commencement of any renewal or extension of this lease, Landlord may cancel and
terminate such renewal or extension agreement by written notice.
Remedies of Landlord and Waiver of Redemption:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent shall become due thereupon and be
paid up to the time of such re-entry, dispossess and/or expiration, together
with such expenses as Landlord may incur for legal expenses, attorneys' fees,
brokerages, and/or putting the demised premises in good order, or for preparing
the same for re-rental; (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 or charge a higher rental than that in this lease,
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 failure of Landlord to re-let the premises or any part
or parts thereof shall not release or affect Tenant's liability for damages. In
computing such liquidated damages there shall be added to the said deficiency
such expenses as Landlord may incur in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage, advertising and for keeping the demised
premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Landlord
to collect the deficiency for any subsequent month by a similar proceeding
Landlord. In putting the demised premises in good order or preparing the same
for re-rental may, at Landlord's option, 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, repairs, replacements, 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, and in no event shall Tenant be entitled to receive any excess, if any,
of such net rents collected over the sums payable by tenant to Landlord
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenant or provisions hereof, Landlord shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if re-entry,
summary proceedings and other remedies were not herein provided for. Mention in
this lease of any particular remedy, shall not preclude Landlord from any other
remedy, in law or in equity. Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed for any cause, or in the event of 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.
Fees and Expenses:
19. If tenant shall default in the observance or performance of any term
or covenant on tenant's part to be observed or performed under or by virtue of
any of the terms or provisions in any article of this lease, then, unless
otherwise provided elsewhere in this lease, landlord may immediately or at any
time thereafter and without notice perform the obligation of tenant thereunder,
and if landlord, in connection therewith or in connection with any default by
tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited attorney's
fees, in instituting, prosecuting or defending any action or proceeding, such
sums so paid or obligations incurred with interest and costs shall be deemed to
be additional rent hereunder and shall be paid by tenant to landlord within five
(5) days of rendition of any xxxx or statement to tenant therefor, and if
tenant's lese term shall have expired at the time of making such expenditures or
incurring of such obligations, such sums shall be recoverable by landlord as
damages.
No Representations by Landlord:
20. Neither Landlord nor Landlord's agents have made any representations
or promises with respect to the physical condition of the building, the land
upon which it is erected or the demised premises, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the premises
except as herein expressly set forth and no rights, easements or licenses are
acquired by Tenant by implication or otherwise except as expressly set forth in
the provisions of this lease. Tenant has inspected the building and the demised
premises and is thoroughly acquainted with their condition, and agrees to take
the same "as is" and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Landlord and tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect and abandonment of
it in while or in part, unless such executory agreement is in writing
and signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
End of Term:
21. 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 expected, and Tenant shall
remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If
the last day of the term of this lease or any renewal thereof, falls on Sunday,
this lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
Outlet Employment:
22. Landlord covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 33 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
Failure to Give Possession:
23. If Landlord is unable to give possession of the demised premises
on the date of the commencement of the term thereof, because of the holding-over
or retention of possession of any tenant, undertenant or occupants, or if the
premises are located in a building being constructed, because such building has
not been sufficiently completed to make the premises ready for occupancy or
because of the fact that a certificate of occupancy has not been procured or for
any other reason, Landlord shall not be subject to any liability for failure to
give possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this lease, but the rent payable hereunder shall be abated (provided
Tenant is not responsible for the inability to obtain possession) until after
Landlord shall have given Tenant written notice that the premises are
substantially ready for Tenant's occupancy. If permission is given to Tenant to
enter into the possession of the demised premises or to occupy premises other
than the demised premises prior to the date specified as the commencement of the
term of this lease. Tenant covenants and agrees that such occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions of this
lease, except as to the covenant to pay rent. The provisions of this article
are intended to constitute "an express provision to the contrary" within the
meaning of Section 223-a of the New York Real Property Law.
No Waiver:
24. The failure of the Landlord to seek redress for violation of, or
to insist upon the strict performance of any covenant or condition of this lease
or of any of the Rules or
Regulations set forth or hereafter adopted by 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 and no provision of this lease shall be deemed to
have been waived by Landlord unless such waiver be in writing signed by
Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rent herein stipulated shall be deemed to be other than on account
of the earliest stipulated rent, nor shall any endorsement or statement of any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to remedy in this lease provided. No act or thing done by Landlord or
Landlord's agents during the term hereby demised shall be deemed an acceptance
of a surrender of said premises and no agreement to accept such surrender shall
be valid unless in writing signed by Landlord. No employee of Landlord or
Landlord's agent shall have any power to accept the keys of said premises prior
to the termination of the lease and the delivery of keys to any such agent or
employee shall not operate as a termination of the lease or a surrender of the
premises.
Waiver of Trial by Jury:
25. 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 (except for personal injury or property damages) on any matter
whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant, Tenant's use of or occupancy of said
premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Landlord commences any summary
proceeding for possession of the premises Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding.
Inability to Perform:
26. This lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in no wise be affected, impaired or excused because Landlord
is unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to makes, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by reason of strike
or labor troubles or any cause whatsoever including, but not limited to,
government preemption in connection with a National Emergency or by reason of an
rule, order or regulation of any department of subdivision thereof of any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
Bills and Notices:
27. Except as otherwise in this lease provided, a xxxx, statement,
notice or communication which Landlord may desire or be require 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 Tenant, mailed or left at the premises as herein
provided. Any notice by Tenant to Landlord must be served by registered or
certified mail address to Landlord at the address first hereinabove given or at
such other address as Landlord shall designate by written notice.
Water Charges:
28. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory purposes (of which fact Tenant constitutes
Landlord to be the sole judge) Landlord may install a water meter and thereby
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 same from Tenant. Tenant covenants and
agrees to pay the sewer rent. If the building or the demised premises or any
part thereof be supplied with water through a meter through which water is also
supplied to other premises Tenant shall pay to Landlord as additional rent, on
the first day of each month, _____% ($75.00) of the total meter charges, 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.
Sprinklers:
29. Anything elsewhere in this lease to the contrary not-writers or
the New York Fire Insurance Exchange or any bureau, department or official of
the federal, state or city government require or recommend the installation of a
sprinkler system or that any changes, modifications, alterations, or additional
sprinkler heads or other equipment be made or supplied in an existing sprinkler
system by reason of Tenant's business, or the location of partitions, trade
fixtures, or other contents of the demised premises, or for any other reason, or
if any such sprinkler system installations, changes, modifications, alterations,
additional sprinkler heads or other such equipment, become necessary to prevent
the imposition of a penalty or charge against the full allowance for a sprinkler
system in the fire insurance rate set by any said Exchange or by any fire
insurance company. Tenant shall, at Tenant's expense, promptly make such
sprinkler system installations, changes, modifications, alterations and supply
additional sprinkler heads or other equipment as required whether the work
involved shall be structural or non- structural in nature. Tenant shall pay to
Landlord as additional rent the sum of $75.00 on the first day of each month
during the term of this lease, and Tenant's portion of the contract price for
sprinkler supervisory service.
Elevators, Heat, Cleaning:
30. As long as Tenant is not in default under any of the convenants
of this lease Landlord shall: (c) at Landlord's expense cause to be kept clean
the public halls and public
portions of the building, which are used in common by all tenants. Tenant shall
at Tenant's expense, keep the demised premises clean and in order, to the
satisfaction of Landlord and for that purpose shall employ the person or
persons, or corporation approved by Landlord. Tenant shall pay to Landlord the
cost of removal of any of Tenant's refuse and rubbish from the building. Bills
for the same shall be rendered by Landlord to Tenant at such time as Landlord
may elect and shall be due and payable when rendered, and the amount of such
bills shall be deemed to be, and be paid as, additional rent. Tenant shall,
however, have the option of independently contracting for the removal of such
rubbish and refuse in the event that Tenant does not wish to have same done by
employees of Landlord. Under such circumstances, however, the removal of such
refuse and rubbish by others shall be subject to such rules and regulations as,
in the judgment of Landlord, are necessary for the proper operation of the
building. Landlord reserves the right to stop service of the heating, elevator,
plumbing and electric 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. And
Landlord shall have no responsibility or liability for failure to supply heat,
elevator, plumbing and electric service during said period or when prevented
from so doing by strikes, accidents or by any cause beyond Landlord's control,
or by laws, orders or regulations of any Federal, State or Municipal Authority,
or failure or coal, oil or other suitable fuel supply, or inability by exercise
of reasonable diligence to obtain coal, oil or other suitable fuel. 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) day 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.
Security:
31. Tenant has deposited with Landlord the sum of $12,000.00 as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this lease: it is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
lease, including, but not limited to, the payment of rent and additional rent,
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 reletting of the premises, whether
such damages or deficiency accrued before or after summary proceedings or other
re-entry by Landlord. 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 a sale of the land and building or leasing of the
building, of which the demised premises form a part, Landlord shall have the
right to transfer the security to the vendee or lessee 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.
Captions:
32. 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.
Definitions:
33. The term "Landlord" as used in this lease means only the owner,
or the mortgagee in possession, for the time being of the land and building (or
the owner of a lease of the building or of the land and building) of which the
demised premises form a part, so that in the event of any sale or sales of said
land and building or of said lease, or in the event of a lease of said building,
or of the land and building, the said Landlord shall be and hereby is entirely
freed and relieved of all covenants and obligations of Landlord hereunder, and
it shall be deemed an construed without further agreement between the parties or
their successors in interest, or between the parties and the purchaser, at any
such sale, or the said lessee of the building, or of the land and building, that
the purchaser or the lessee of the building, or of the land and building, that
the purchaser or the lessee of the building has assumed and agreed to carry out
any and all covenants and obligations of Landlord hereunder. The words "re-
enter" and "re-entry" as used in this lease are not restricted to their
technical legal meaning. The term "business days" as used in this lease shall
exclude Saturdays (except) such portio nthereof as is covered by specific hours
in Article 30 hereof). Sundays and all days observed by the State or Federal
Government as legal holidays and those designated as holidays by the applicable
building service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
Adjacent Excavation - Shoring:
34. 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.
Rules and Regulations:
35. Tenant and Tenant's servants, employees, agents, visitors, and
licensee 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 to 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 New York office of the American
Arbitration Association, whose determination shall be final and conclusive upon
the parties hereto. The right to dispute the reasonableness of any additional
Rule or Regulation upon Tenant's part shall be deemed waived unless the same
shall be asserted by service of a notice, in writhing upon Landlord within ten
(10) days after the giving of notice thereof. 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.
Glass:
36. 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 the
Landlord. Bills for the premiums therefore 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.
Successors and Assigns:
37. 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.
Articles # 38 through # 50 of this Lease are set
forth in Rider A to this Lease and are
incorporated herein by reference and made a part
hereof.
In Witness Whereof, Landlord and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
LANDLORD:
Witness for Landlord: /s/ Xxxxxx Xxxxxx
_____________________________
By: Xxxxxx Xxxxxx
Irving Realty Co.
____________________________
TENANT:
Xxxxxx Xxxxx Associates
Witness for Tenant: /s/ Xxxxxx Xxxxx
--------------------------------
By: Xxxxxx Xxxxx, President
/s/ Xxx Xxxxxxxxxxx
---------------------------------
By: Xxx Xxxxxxxxxxx
____________________________
Tenant taxpayer ID # 13 -
------
Tenant Attorney: Name:
Address:
Telephone:
Fax #:
ACKNOWLEDGMENTS
CORPORATE LANDLORD
STATE OF NEW YORK ) ss.:
County of )
On this _____ date of ___________, 19__, before me personality came
________________, to me known, who being by me duly sworn, did depose and say
that he resides in ______________; that he is the ___________ of
____________________ the corporation described in and which executed the
foregoing instrument, as LANDLORD, that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
INDIVIDUAL LANDLORD
STATE OF NEW YORK ) ss.
County of )
On this _____ date of ___________, 19__, before me personality came
________________, to me known, and known to me to be the individual described in
and who, as LANDLORD, executed the foregoing instrument and acknowledged to me
that he executed the name,
CORPORATE TENANT
STATE OF NEW YORK ) ss.:
County of )
On this _____ date of ___________, 19__, before me personality came
________________, to me known, who being by me duly sworn, did depose and say
that he resides in ______________; that he is the ___________ of
____________________ the corporation described in and which executed the
foregoing instrument, as TENANT, that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
INDIVIDUAL TENANT
STATE OF NEW YORK ) ss.:
County of )
On this _____ date of ___________, 19__, before me personality came
________________, to me known, and known to me to be the individual described in
and who, as TENANT, executed the foregoing instrument and acknowledged to me
that he executed the name,
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO
AND MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 35.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress in and egress from
the demised premises and for delivery of merchandise and equipment in a prompt
and efficient manner using elevators and passageways designated for such
delivery by Landlord. There shall not be used in any space or in the public
hall of the building, either by any Tenant or by jobbers or others in the
delivery or receipt of merchandise, any hand trucks, except those equipped with
rubber tires and sideguards. If said premises are situate on the ground floor
of the building Tenant hereof shall further, at Tenant's expense, keep the
sidewalks and curb in front of said premises clean and free from ice, snow, dirt
and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed
and no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from the
violation of the rule shall be borne by the tenant who, or whose clerks, agents,
employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the buildings; and no Tenant shall sweep or throw or permit to be
swept or thrown from the demised premises any dirt or other substances into any
of the corridors or halls, elevators, or out of the doors or windows or
stairways of the building, and Tenant shall not use, keep or permit to be used
or kept any foul or noxious gas or substance in the demised premises, or permit
or suffer the demised premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the building by reason of noise,
odors and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any animals or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside
walks of the building without the prior written consent of Landlord.
5. No sign, advertisement, notice or other letterbox shall be
exhibited, inscribed, pointed or affixed by any Tenant on any part of the
outside of the demised premises or the building or on the inside of the demised
premises if the same is visible from the outside of the premises without be
prior written consent of Landlord, except that the name of Tenant may appear on
the entrance door of the remises. In the event of the violation of the
foregoing by any Tenant, Landlord may remove same without any liability, and may
charge the expense incurred by such removal to Tenant or Tenants violating this
rule. Interior signs on doors and directory
tablet should be inscribed, painted or affixed for each Tenant by Landlord at
the expense of such Tenant and shall be of size, color and style acceptable to
Landlord.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct. No Tenant shall lay
linoleum, or other similar floor covering, so that the same shall come to direct
contact with the floor of the demised premises, and, if linoleum or other
similar floor covering is desired to be used an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use or cement or other similar adhesive material
being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such Tenant, and in the event of
the loss of any keys, no furnished, such Tenant shall pay to Landlord the cost
thereof.
8. Freight, furniture, business equipment, merchandise and bulky
matter of any description shall be delivered to and removed from the premises
only on the freight elevators and through the service entrances and corridors,
and only during hours and in a manner approved by Landlord. Landlord reserves
the right to inspect all which violates any of these Rules and Regulations of
the lease of which these Rules and Regulations are a part.
9. No Tenant shall obtain for use upon the demised premises ice,
drinking water, towel and other similar services, or accept barbering or
bootblacking services in the demised premises, except from persons authorized by
Landlord, and at hours and under regulations fixed by Landlord. Canvassing,
soliciting and peddling in the building is prohibited and each Tenant shall co-
operate to prevent the same.
10. Landlord reserves the right to exclude from the building between
the hours of 6 P.M. and 8 A.M. and at all hours on Sunday, and legal holidays
all persons who do not present a pass to the building signed by Landlord.
Landlord will furnish passes to persons for whom any Tenant requests same in
writing. Each Tenant shall be responsible for all persons for whom he requests
such pass and shall be liable to Landlord for all acts of such persons.
11. Landlord shall have the right to prohibit any advertising by any
Tenant which, in Landlord's opinion, tends to impair the reputation of the
building or its desirability as a building for offices, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on
the demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
RIDER A
RIDER TO A LEASE DATED April 22, 1996, BETWEEN Irving Realty Co., AS LANDLORD
AND Xxxxxx Xxxxx Associates, Inc., AS TENANT.
________________________________-
38. RENT SCHEDULE:
--------------
At an annual rental of SEVENTY-EIGHT THOUSAND DOLLARS ($78,000.00),
------------------------------
payable in equal monthly installments of $6,500.00 from 6/1/96 to 12/31/96 and
then,
At an annual rental of EIGHTY THOUSAND AND SEVEN HUNDRED DOLLARS,
------------------------------------------
($80,700.00), payable in equal monthly installments of $6,725.00 from 1/1/97 to
12/31/97 and then,
At an annual rental of EIGHTY-SIX THOUSAND AND FOUR HUNDRED DOLLARS,
---------------------------------------------
($86,400.00), payable in equal monthly installments of $7,200.00 from 1/1/98 to
12/31/98 and then,
At an annual rental of NINETY-ONE THOUSAND AND TWO HUNDRED DOLLARS,
--------------------------------------------
($91,200.00), payable in equal monthly installments of $7,600.00 from 1/1/99 to
12/31/99 and then,
At an annual rental of NINETY-FOUR THOUSAND AND EIGHT HUNDRED DOLLARS,
-----------------------------------------------
($94,800.00), payable in equal monthly installments of $7,900.00 from 1/1/2000
to 12/31/2000 and then,
At an annual rental of NINETY-SEVEN THOUSAND AND TWO HUNDRED DOLLARS,
----------------------------------------------
($97,200.00), payable in equal monthly installments of $8,100.00 from 1/1/2001
to 12/31/2001 and then,
At an annual rental of NINETY-NINE THOUSAND DOLLARS ($99,000.00),
------------------------------------------
payable in equal monthly installments of $8,250.00 from 1/1/2002 to 5/31/2003.
ALL RENTS ARE DUE AND PAYABLE, ON THE FIRST OF EACH AND EVERY MONTH DURING THE
TERM OF THE LEASE COMMENCING ON THE FIRST OF JUNE 1996.
39. EXCULPATORY CLAUSE:
------------------
Anything to the contrary notwithstanding Landlords liability for its
negligence or failure to perform its obligation hereunder shall be
limited to its interest in the Land and Building. Tenant shall neither
seek to enforce nor enforce any judgment or other remedy against any
other asset of Landlord or any individual who holds interest in
Landlord.
40. EFFECTIVENESS, ETC.:
-------------------
The submission of this Lease to Tenant shall not constitute an offer
by Landlord to execute and exchange a Lease with Tenant and is made
subject to Landlord's acceptance, execution and delivery thereof.
41. INSURANCE:
----------
Tenant shall obtain and keep in full force and effect during the Term a
policy of comprehensive general public liability and property damage
insurance with a broad form contractual liability endorsement under which
Tenant is named as insured and Landlord is named as additional insured.
The minimum limits of liability shall be a combined single limit with
respect to each occurrence of at least $1,000,000.00 for injury (or death)
and damage to property. Such insurance shall be effected under a valid and
enforceable policy issued by a reputable and independent insurer legally
permitted to do business in the State of New York.
42. ADDITIONAL RENT:
----------------
All payments other than Fixed Rent to be made by Tenant pursuant to this
Lease shall be deemed additional rent and, in the event of any non payment
thereof, Landlord shall have all the rights and remedies provided herein or
bylaw for non payment of rent.
43. SERVICES:
---------
Supplementing Article #30, Landlord shall provided elevator facility as
long as Tenant is NOT in default under any of the covenants of this Lease*,
and furnish and distribute heat at reasonable temperatures to the demised
premises on business days only and during the hours from 8:00 A.M. to 5:00
P.M. The term "business days" as used in this lease shall exclude (i)
Saturdays and Sundays, (ii) all days observed as legal holidays by either
the State of New York or the Federal Government, and (iii) all days
observed as Union holidays by Local Union 32BJ.
*After notice and beyond applicable cure period, if any.
44. ESCALATIONS:
------------
A. In a determination of any increase in the Fixed Rent under the
provisions of this Article #44, Landlord and Tenant agree as follows:
1. "TAXES" shall mean the aggregate amount of real estate taxes and any
general or special assessments (exclusive of penalties and interest
thereon) imposed by any governmental authority having jurisdiction upon the
Building and Land upon which it is situated or any tax or assessment
hereafter imposed in whole or in part, in substitution for such real estate
taxes and/or assessments.
2. "ASSESSED VALUATION" shall mean the amount for which the Real Property
is assessed pursuant to applicable provisions of the New York City Charter
and the Administrative Code of the City of New York for the purpose of
imposition of Taxes.
3. "TAX YEAR" shall mean the period from July 1 through June 30 (or such
other period as hereafter may be duly adopted by the City of New York as
its fiscal year for real estate tax purposes.)
4. "BASE TAXES" shall mean the taxes finally determined for the fiscal
year July 1, 1995 to June 30, 1996, (Tenant shall have the benefit of any
tax certiorari adjustment for years following the base period less costs,
including attorney's fees.)
5. "TENANTS PROPORTIONATE SHARE" shall mean Eleven (11%) Percent.
6. "COMPARISON YEAR" shall mean (i) with respect to Taxes, the Tax Year
within the Commencement Date occurs and each subsequent Tax Year during the
Term and (ii) with respect to Operating Expenses (herein defined), the
calendar year during the Term for any part or all of which there is an
increase in the Fixed Rent pursuant to subsection B of this Article #44.
7. "OPERATING EXPENSES" shall mean the aggregate of those costs and
expenses (and any taxes, if any, thereon) paid or incurred by or on behalf
of Landlord (whether directly or through independent contractors) in
respect to the operation, maintenance, and management of the Land or the
Building and the sidewalks and areas adjacent thereto (hereinafter called
"Operation of the Property") which in accordance with the accounting
practices used by the Landlord are properly chargeable to the Operation of
the Property together with and including (but without limitation) the cost
of gas, steam, fuel, electricity, labor, utility taxes and financial
expenses incurred in connection with the operation of the property such as
increases in insurance premiums, attorney's fees and expenses, but
specifically excluding (i) Taxes, (ii) income taxes imposed upon the
Landlord, (iii) mortgage interest and principal, (iv) leasing commissions,
(v) the cost of electrical energy furnished directly to the Tenants of the
building, (vi) specific work performed for individual tenants, and (vii)
Tenant litigations.
44. ESCALATIONS: (continued)
------------------------
8. "BASE OPERATING EXPENSES" shall mean the operating expenses for the
period January 1, 1996 to December 31, 1996.
9. "LANDLORD'S STATEMENT" shall mean a statement containing a comparison
of any increase in the Fixed Rent for the preceding Comparison Year
pursuant to the provisions of this Article #44.
B.1. If the taxes payable for any Comparison Year (any part or all of
which falls within the Term) shall represent an increase above Base Taxes,
then the Fixed Rent for such Comparison Year, and continuing thereafter
until a new Landlord's Statement is rendered to Tenant, shall be increased
by Tenant's Proportionate Share of such interest.
2. If the Operating Expenses for any Comparison Year (any part or all of
which falls within the Term) shall be greater than the Base Operating
Expenses then the Rent for such Comparison Year and continuing thereafter
until a new Landlord's Statement is rendered to tenant, shall be increased
by Tenant's Proportionate Share of such increase.
C.1. At any time during or after any Comparison Year Landlord may render
to Tenant a Landlord's Statement showing the amount of the increase in the
Fixed Rent resulting from the operation of subsection B-1 of this Article
#44. Landlord's failure to render a Landlord's Statement during or with
respect to any Comparison Year shall not prejudice Landlord's right to
render a Landlord's Statement during or with respect to any subsequent
Comparison Year, and shall not eliminate or reduce Tenant's obligation to
pay increase in the Fixed Rent pursuant to this Article #44 for such
Comparison Year.
2. At any time after thirty (30) days following the expiration of any
Comparison Year, Landlord may render to Tenant a Landlord's Statement
showing the amount of the increase in the Fixed Rent resulting from the
operation of subsection B-2 oft his Article #44 with respect to the
applicable preceding Comparison Year. Landlord's failure to render a
Landlord's Statement with respect to any subsequent Comparison Year, and
shall not eliminate or reduce Tenant's obligation to pay any increase in
the Fixed Rent pursuant to this Article #44 for such Comparison Year.
D. Tenant shall pay all increases computed pursuant to this Article #44
promptly upon Landlord rendering a Landlord's Statement.
E. The expiration or termination of this Lease during any Comparison Year
or any calendar year for any part or all of which there is an increase in
the Fixed Rent under this Article #344 shall not affect the rights or
obligations of the parties hereto respecting such increase and any
Landlord's Statement relating to such increase may, on a pro rata basis, be
sent to the Tenant subsequent to, and all such rights and obligations shall
survive, any such expiration or termination. All payment due under such
Landlord's Statement or comparative statement shall be payable within
twenty (20) days after such statement is sent to tenant.
45. ELECTRICITY:
------------
Supplementing Article #12 of this Lease:
A. Landlord shall not be obligated to furnish electricity to Tenant and
Tenant shall arrange to obtain electricity from the public utility or other
company servicing the Building. Such electricity may be furnished to
Tenant by means of the then existing electrical facilities servicing the
demised premises to the extent that the same are available, suitable, and
safe for such purposes. All meters and all additional panel boards,
feeders, risers, wiring and other conductors and equipment which may be
required to obtain electricity in excess of that presently provided shall
be installed by the Landlord, at Tenant's sole cost and expense, or by
Tenant, at Landlord's sole discretion, at Tenant's sole cost and expense by
electricians and mechanics approved by the Landlord in writing. A Utility
owned meter is now in place.
B. Landlord shall not be liable to Tenant in any way for any interruption,
curtailment or failure or defect in the supply or character or electricity
furnished to the demised premises by reason of any requirement, act or
omission of Landlord or any public utility or other company servicing the
Building with electricity or for any other reason except Landlord's willful
or negligent acts.
46. "AS IS"
-------
Supplementing Article #20 of this Lease:
The demised premises is currently occupied by the tenant and shall be
leased to tenant in their present "As Is" condition. EXCEPTION: Landlord
agrees to paint premises, colors to be selected by Tenant.
47. BROKERAGE:
----------
Tenant warrants and represents to Landlord that it has dealt with no
Broker, real estate salesman, or other similar person, firm or corporation
in connection with the within Lease. Tenant shall indemnify and hold
Landlord harmless of and from any and all claims, liabilities, loss, costs,
damages and expenses (including without limitation attorney's and expert's
fees and disbursements) which are based upon, result from or are incurred
by Landlord by reason of a claim by any broker, person, firm or corporation
for brokerage commissions and/or other compensation by reason of having
dealt with Tenant.
48. INDEMNIFICATION OF LANDLORD:
----------------------------
Tenant shall indemnify and save harmless Landlord and Landlord' agent
against and from (1) any and all claims against Landlord or such agents of
whatever nature arising from any act, omission or negligence of Tenant or
any sublease and Tenant's and any subleasee's contractors, licensees,
agents, employees, invitees, or visitors; (ii) all claims against Landlord
or such agents arising from any accident, injury, or damage whatsoever
caused to any person or to the property of any person and occurring during
the term of this Lease in or about the demised premises, or occurring
outside of the demised premises, but anywhere within or about the building
where such accident, injury or damage results or is claimed to have
resulted from any act, omission or negligence of Tenant or any subleasee of
Tenant's or any sublessee's agents, employees, invitees or visitors; (iii)
any breach, violation, or nonperformance of any covenant, condition or
agreement in this Lease set forth and contained on the part of Tenant to be
fulfilled, kept, observed and performed; and (iv) any cost, liability, or
responsibility for the payment of any sales tax or other tax with respect
to any installments, furniture, fixtures, furnishings or other improvements
located, installed or constructed in the demised premises, or the filing of
any tax return if required by law), regardless of whether such tax is
imposed upon Landlord or Tenant. This indemnity and hold harmless
agreement shall include indemnity from and against any and all liability,
fines, suits, demands, costs and expenses (including, without limitation,
reasonable attorneys' and experts' fees and disbursements) of any kind or
nature incurred in or connection with any such claim or proceeding brought
thereon, and the defense thereof.
49. DIRECTORY:
----------
Landlord agrees to allow the Tenant to post four (4) names on the lobby
directory.
50. ALTERATION:
-----------
Tenant agrees to maintain at their sole cost and expense in a manner
reasonably acceptable to Landlord any leak created by the existing air
conditioning installed by tenant and any other damage to the building of
whatever kind of nature which results from the existing air conditioning
system.
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