EXHIBIT 10.5
AGREEMENT OF LEASE, made this 14th day of January 1997, between
FIFTH AVENUE WEST ASSOCIATES, L.P., 00 Xxxx 00 Xxxxxx #000, Xxx Xxxx, XX
00000 party of the first part, hereinafter referred to as OWNER, and
WEBGENESIS, INC., 000 Xxxxxxx Xxx., Xxxxxx, XX 00000 party of the second
part, hereinafter referred to as Tenant.
W I T N E S S E T H:
Owner hereby leases to Tenant and Tenant hereby hires from Owner
entire 4th floor, as per the attached "Exhibit A" in the building known as
00 Xxxx 00 Xxxxxx in the Borough of Manhattan, City of New York ("Building
or "building"), for the term of Five (5) Years (or until such term shall
sooner cease and expire as hereinafter provided) to commence on the 1st day
of February, nineteen hundred and 97, and to end on the 31st day of
January, 2002 ("Expiration Date") both dates inclusive, at an annual rental
rate set forth in Article 41 ("rent" or "Fixed Rent") together with all
other sums of money as shall become due and payable by Tenant under this
lease (collectively, "additional rent" or "Additional Rent") which Tenant
agrees to pay in lawful money of the United States which shall be legal
tender in payment of all debts and dues, public and private, at the time of
payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner
may designate, without any set off or deduction whatsoever, except that
Tenant shall pay the first monthly installment(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 Owner
pursuant to the terms of another lease with Owner or with Owner's
predecessor in interest, Owner may at Owner's option and without notice to
Tenant add the amount of such arrears to any monthly installment of rent
payable hereunder and the same shall be payable to Owner as additional
rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
hereby covenant as follows:
Occupancy: 1. Tenant shall pay the rent as above and as
hereinafter provided.
Use: 2. Tenant shall use and occupy demised premises
for offices provided such use is in accordance
with the Certificate of Occupancy for the
building, if any, and for no other purpose.
Alterations: 3. Tenant shall make no changes in or to the
demised premises of any nature without Owner's
prior written consent. Subject to the prior
written consent of Owner, and to the provisions of
this article, Tenant at Tenant's expense, may make
alterations, installations, additions or
improvements which are nonstructural and which do
not affect utility services or plumbing and
electrical lines, in or to the interior of the
demised premises using contractors or mechanics
first approved by Owner. Tenant shall, at its
expense, before making any alterations, additions,
installations or improvements obtain all permits,
approval 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 permits, approvals and certificates to Owner.
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 Owner
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 thirty days thereafter, at tenant's
expense, by filing the bond required by law or
otherwise. All fixtures and all paneling,
partitions, railings and like installations,
installed in the premises at any time, either by
Tenant or by Owner on Tenant's behalf, shall, upon
installation, become the property of Owner and
shall remain upon and be surrendered with the
demised premises unless Owner, by notice to tenant
no later than twenty days prior to the date fixed
at the termination of this lease, elects to
relinquish Owner's right thereto and to have them
removed by Tenant, in which event the same shall
be removed from the demised premises by Tenant
prior to the expiration of the lease, at Tenant's
expense. Nothing in this Article shall be
construed to give Owner title to or to prevent
Tenant's removal of trade fixtures, moveable
office furniture and equipment, but upon removal
of any such from the premises or upon removal of
other installations as may be required by Owner,
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 due
to 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 Owner, either be retained as Owner's
property or removed from the premises by Owner, at
Tenant's expense.
Repairs: 4. Owner shall maintain and repair the exterior of
and the public portions of the building. Tenant
shall, throughout the term of this lease, take
good care of the demised premises including the
bathrooms and lavatory facilities (if the demised
premises encompass the entire floor of the
building) and the windows and window frames and,
the fixtures and appurtenances therein and at
Tenant's sole cost and expense promptly make all
repairs thereto and to the building, whether
structural or non-structural in nature, caused by
or resulting from the carelessness, omission,
neglect or improper conduct of Tenant, Tenant's
servants, employees, invitees, or licensees, and
whether or not arising from such Tenant conduct or
omission, when required by other provisions of
this lease, including Article 6. Tenant shall also
repair all damage to the building and 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 to 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 Owner
at the expense of Tenant, and the expenses thereof
incurred by owner shall be collectible, as
additional rent, after rendition of a xxxx or
statement therefor. If the demised premises be or
become infested with vermin, Tenant shall, at its
expense, cause the same to be exterminated. Tenant
shall give Owner prompt notice of any defective
condition in any plumbing, heating system or
electrical lines located in the demised premises
and following such notice, Owner 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 this lease, there shall
be no allowance to the Tenant for a diminution of
rental value and no liability on the part of Owner
by reason of inconvenience, annoyance or injury to
business arising from Owner, 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 with regard to which Article 9 thereof
shall apply.
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, 6. Prior to the commencement of the lease term, if
Fire Insurance Tenant is then in possession, and at all times
Floor Loads: thereafter, Tenant shall, at Tenant's sole cost
and expense, 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 the Insurance
services Office, or any similar body which shall
impose any violation, order or duty upon Owner or
Tenant with respect to the demised premises,
whether or not arising out of Tenant's use or
manner of use thereof, or, with respect to the
building, if arising out of Tenant's use or manner
of use of the demised premises or the building
(including the use permitted under the require
Tenant to make structural repairs or alterations
unless Tenant has, by its manner of use of the
demised premises or method of operation therein,
violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto.
Tenant shall not do or permit any act or thing to
be done in or to the demised premises which is
contrary to law, or which will invalidate or be in
conflict with public liability, fire or other
policies of insurance at any time carried by or
for the benefit of Owner. Tenant shall not keep
anything in the demised premises except as now or
hereafter permitted by the Fire Department, Board
of Fire Underwriters, Fire Insurance Rating
Organization and other authority having
jurisdiction, and then only in such manner and
such quantity so as not to increase the rate for
fire insurance applicable to the building, nor use
the 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 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 Owner, as additional
rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which
shall have been charged because of such failure by
Tenant. In any action or proceeding wherein Owner
and Tenant are parties, a schedule or "make-up" or
rate for the building or demised premises issued
by a 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 rates 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. Owner reserves the right to
prescribe the weight and position of all safes,
business machines and mechanical equipment. Such
installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings
sufficient, in Owner's judgement, 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
or subordination shall be required by any ground
or underlying lessor or by any mortgagee,
effecting 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 Owner may request.
Property Loss, 8. Owner or its agents shall not be liable for any
Damage, damage to property of Tenant or of others
Reimbursement, entrusted to employees of the building, nor for
Indemnity: loss of or damage to any property of Tenant by
theft or otherwise, nor for injury or damage to
persons or property resulting from any cause of
whatsoever nature, unless caused by or due to the
negligence of Owner, its agents, servants or
employees; Owner or its agents shall not be liable
for any damage caused by other tenants or persons
in, upon or about said building or caused by
operations in connection 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 limited to
Owner's own acts, Owner shall not be liable for
any damage Tenant may sustain thereby and Tenant
shall not be entitled to any compensation therefor
nor abatement or diminution of rent shall the same
release Tenant from its obligations hereunder nor
constitute an eviction. Tenant shall indemnify and
save harmless Owner against and from all
liabilities, obligations, damages, penalties,
claims, costs and expenses for which Owner shall
not be reimbursed by insurance, including
reasonable attorney's fees, paid, suffered or
incurred as a result of any breach by Tenant,
Tenant's agents, contractors, employees, invitees,
or licensees, of any covenant or conditions 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 sub-tenant, and any
agent, contractor, employee, invitee or licensee
of any sub-tenant. In case any action or
proceeding is brought against Owner by reason of
any such claim, Tenant, upon written notice from
Owner, will, at Tenant's expense, resist or defend
such action or proceeding by counsel approved by
Owner in writing, such approval not to be
unreasonably withheld.
Destruction, Fire 9. (a) If the demised premises or any part thereof
and Other shall be damaged by fire or other casualty, Tenant
Casualty: shall give immediate notice thereof to Owner 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 Owner and the rent, until such repair
shall be substantially completed, shall be
apportioned from the day following the casualty
according to the part of the 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 Owner, subject to Owner's right to
elect not to restore the same as hereinafter
provided, (d) if the demised premises are rendered
wholly unusable or (whether or not the demised
premises are damaged in whole or in part) if the
building shall be so damaged that Owner shall
decide to demolish it or to rebuild it, then, in
any of such events, Owner shall decide to demolish
it or to rebuild it, then, in any of such events,
Owner 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 Owner'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 Owner shall
repairs and restorations under the conditions of
(b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of
insurance claims, labor troubles and causes beyond
Owner's control. After any such casualty, Tenant
shall cooperate with Owner's restoration by
removing from the premises as promptly as
reasonably possible, all of Tenant's salvageable
inventory and movable equipment, furniture, and
other property. Tenant's liability for rent shall
resume five (5) days after written notice from
Owner that the 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,
Owner and Tenant each hereby releases and waives
all right of recovery against the other or any one
claiming through or under each of them by way of
subrogation or otherwise. The foregoing release
and waiver shall be in force only if both
releasors' insurance policies contain a clause
providing that such a release or waiver shall not
invalidate the insurance. If, and to the extent,
that such waiver can be obtained only by the
payment of additional premiums, then the party
benefiting from the waiver shall pay such premium
within ten days after written demand or shall be
deemed to have agreed that the party obtaining
insurance coverage shall be free of any further
obligation under the provisions hereof with
respect to waiver of subrogation. Tenant
acknowledges that Owner will not carry insurance
on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or
appurtenances removable by Tenant and agrees that
Owner will not be obligated to repair any damage
thereto or replace the same. (f) Tenant hereby
waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of
this article shall govern and control in lieu
thereof.
Eminent 10. If the whole or any part of the demised
Domain: 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, 11. Tenant, for itself, its heirs, distributees,
Mortgage, executors, administrators, legal representatives,
Etc.: 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 Owner
in each instance. Transfer of the majority of the
stock of a corporate Tenant shall be deemed an
assignment. If this lease be assigned, or if the
demised premises or any part thereof be underlet
or occupied by anybody other than Tenant, Owner
may, after default by Tenant, collect rent from
the assignee, under-tenant or occupant, and apply
the net amount collected to the rent herein
reserved, but no such assignment, underletting,
occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the
assignee, under-tenant or occupant as tenant, or a
release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment
or underletting shall not in any wise be construed
to relieve Tenant from obtaining the express
consent in writing of Owner to any further
assignment or underletting.
Electric 12. Rates and conditions in respect to submetering
Current: or rent inclusion, as the case may be, are to be
added in RIDER attached hereto. Tenant covenants
and agrees that at all times its use of electric
current shall not exceed the capacity of existing
leeders to the building or the risers or wiring
installation and Tenant may not use any electrical
equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or
interfere with the use thereof by other tenants of
the building. The change at any time of the
character of electric service shall in no wise
make Owner liable or responsible to Tenant, for
any loss, damages or expenses which Tenant may
sustain.
Access to 13. Owner or Owner's agents shall have the right
Premises: (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 Owner may deem necessary and reasonably
desirable to any portion of the building or which
Owner may elect to perform in the premises after
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
Owner to use and maintain and replace pipes and
conduits in and through the demised premises and
to erect new pipes and conduits therein provided,
wherever possible, they are within walls or
otherwise concealed. Owner 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
of 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
Owner shall have the right to enter the demised
premises at reasonable hours for the purpose of
showing the same to prospective purchasers or
mortgagees of the building, and during the last
six months of the term for the purpose of showing
the same to prospective tenants and may, during
said six months period, place upon the premises
the usual notices "To Let" and "For Sale" which
notices Tenant shall permit to remain thereon
without molestation. If Tenant is not present to
open and permit an entry into the premises, Owner
or Owner's agents may enter the same whenever such
entry may be necessary or permissible by master
key or forcibly and provided reasonable care is
exercised to safeguard Tenant's property, such
entry shall not render Owner or its agents liable
therefor, nor 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, Owner may immediately enter, alter,
renovate or redecorate the demised premises
without limitation or abatement of rent, or
incurring liability to Tenant for any compensation
and such act shall have no effect on this lease or
Tenant's obligations hereunder.
Area: 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. Owner 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, Owner shall
not be subject to any liability nor shall Tenant
be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation,
diminution or requisition be deemed constructive
or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall
be paid by Tenant, if used by Tenant, whether or
not specifically leased hereunder.
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 Owner's
work, if any. In any event, Owner 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. If any
governmental license or permit shall be required
for the proper and lawful conduct of Tenant's
business, Tenant shall be responsible for and
shall procure and maintain such license or permit.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the
contrary notwithstanding, this lease may be
cancelled by Owner by sending of a written notice
to Tenant within a reasonable time after the
happening of any one or more of the following
events: (1) the commencement of a case in
bankruptcy or under the laws of any state naming
Tenant as the debtor; or (2) the making by Tenant
of an assignment or any other arrangement for the
benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or
under Tenant, or by reason of any statute or order
of court, shall thereafter be entitled to the
premises. If this lease shall be assigned in
accordance with its terms, the provisions of this
Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the
event of the termination of this lease pursuant to
(a) hereof, Owner shall forthwith, notwithstanding
any other provisions of this lease to the
contrary, be entitled to recover from Tenant as
and for liquidated damages an amount equal to the
difference between the rental reserved hereunder
for 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 Owner for the unexpired term of said
lease, or any part thereof, before presentation of
proof of such liquidated damages to any court,
commission or tribunal, the amount of rent
reserved upon such reletting 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 re-letting. Nothing herein contained shall
limit or prejudice the right of the Owner to prove
for and obtain as liquidated damages by reason of
such termination, an amount equal to the maximum
allowed by any statute or role 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 becomes vacant or
deserted "or if this lease be rejected under ss.
235 of Title 11 of the U.S. Code (bankruptcy
code);" 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 Owner and Tenant; or if Tenant
shall have failed, after five (5) days written
notice, to redeposit with Owner any portion of the
security deposited hereunder which Owner has
applied to the payment of any rent and additional
rent due and payable hereunder or failed to move
into or take possession of the premises within
fifteen (15) days after the commencement of the
terms of this lease, of which fact owner shall be
the sole judge; then in any one or more of such
events, upon Owner serving a written five (5) days
notice upon Tenant specifying the nature of said
default and upon the expiration of said five (5)
days, if Tenant shall have failed to comply with
or remedy such default, or if the said default or
omission complained of shall be of a nature that
the same cannot be completely cured or remedied
within said five (5) day period, and if Tenant
shall not have diligently commenced 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 Owner may serve a written three (3)
days' notice of cancellation of this lease upon
Tenant, and upon the expiration of said three (3)
days this lease and the term thereunder shall end
and expire as fully and completely as if the
expiration of such three (3) day period were the
day herein definitely fixed for the end and
expiration of this lease and the term thereof and
Tenant shall then quit and surrender the demised
premises to Owner but Tenant shall remain liable
as hereinafter provided.
(2) If the notice provided for in (1) hereof
shall have been given, and the terms shall expire
as aforesaid: or if Tenant shall make default in
the payment of the rent reserved herein or any
item of additional rent herein mentioned or any
part of either or in making any other payment
herein required; then and in any of such events
Owner may without notice, re-enter the demised
premises either by force or otherwise, and
dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant
or other occupant of demised premises re-enter or
to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the
date fixed as the commencement of any renewal or
extension of this lease, Owner may cancel and
terminate such renewal or extension agreement by
written notice.
Remedies of 18. In case of any such default, re-entry,
Owner and expiration and/or dispossess by summary
Waiver of proceedings or otherwise, (a) the rent, and
Redemption: additional rent, shall become due thereupon and be
paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the
premises or any part or parts thereof; either in
the name of Owner or otherwise, for a term or
terms, which may at Owner's option be less than or
exceed the period which would otherwise have
constituted the balance of the term of this lease
and may grant concessions or free rent or charge a
higher rental than that in this lease, (c) Tenant
or the legal representatives of Tenant shall also
pay Owner 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 subsequent lease or
leases of the demised premises for each month of
the period which would otherwise have constituted
the balance of the term of this lease. The failure
of Owner to re-let the 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 Owner 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 any suit brought to collect the
amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by
a similar proceeding. Owner, in putting the
demised premises in good order or preparing the
same for re-rental may, at Owner's option, make
such alterations, repairs, replacements, and/or
decorations in the demised premises as Owner, in
Owner's sole judgment, considers advisable 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. Owner shall in no event be liable in
any way whatsoever for failure to re-let the
demised premises, or in the event that the demised
premises are re-let, for failure to collect the
rent thereof under such re-letting, an in no event
shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums
payable by Tenant to Owner hereunder. In the event
of a breach or threatened breach by Tenant of any
of the covenants or provisions hereof, Owner shall
have the right of injunction and the right to
invoke any remedy allowed at law or in equity as
if re-entry, summary proceedings and other
remedies were not herein provided for. Mention in
this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in
equity. Tenant hereby expressly waives any and all
rights of redemption granted by or under any
present or future laws.
Fees and 19. If Tenant shall default in the observance or
Expenses: performance of any term or covenant on Tenant's
part to be observed or performed under or by
virtue of any of the terms or provisions in any
article of this lease, then, unless otherwise
provided elsewhere in this lease, Owner may
immediately or at any time thereafter and without
notice perform the obligation of Tenant
thereunder. If Owner, in connection with the
foregoing or in connection with any default by
Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations
for the payment of money, including but not
limited to attorney's fees, in instituting,
prosecuting or defending any action or
proceedings, then Tenant will reimburse Owner for
such sums so paid or obligation incurred with
interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be
deemed to be additional rent hereunder and shall
be paid by Tenant to Owner within five (5) days of
rendition of any xxxx or statement to Tenant
therefor. If Tenant's lease term shall have
expired at the time of making of such expenditures
or incurring of such obligations, such sums shall
be recoverable by Owner as damages.
Building 20. Owner shall have the right at any time without
Alterations the same constituting an eviction and without
and incurring liability to Tenant therefor to change
Management: the arrangement and or location of public
entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other
public parts of the building and to change the
name, number or designation by which the building
may be known. There shall be no allowance to
Tenant for diminution of rental value and no
liability on the part of Owner by reason of
inconvenience, annoyance or injury to business
arising from Owner or other Tenant making any
repairs in the building or any such alterations,
additions and improvements. Furthermore, Tenant
shall not have any claim against Owner by reason
of Owner's imposition of any controls of the
manner of access to the building by Tenant's
social or business visitors as the Owner may deem
necessary for the security of the building and its
occupants.
No Representations 21. Neither Owner nor Owner's agents have made any
by Owner: representations or promises with respect to the
physical condition of the building, the land upon
which it is erected or the demised premises, the
rents, leases, expenses of operation or any other
matter or thing affecting or related to the
demised premises or the building 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" on the date
possession is tendered and acknowledges that the
taking of possession of the demised premises by
Tenant shall be conclusive evidence that the said
premises and the building of which the same form a
part were in good and satisfactory condition at
the time such possession was so taken, except as
to latent defects. All understandings and
agreements heretofore made between the parties
hereto are merged in this contract, which alone
fully and completely expresses the agreement
between Owner and Tenant and any executory
agreement hereafter made shall be ineffective to
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: 22. Upon the expiration or other termination of
the term of this lease, Tenant shall quit and
surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear
and damages which Tenant is not required to repair
as provided elsewhere in this lease excepted, and
Tenant shall remove all its property from the
demised premises. Tenant's obligations 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.
Quiet 23. Owner covenants and agrees with Tenant that
Enjoyment: 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 34 hereof and to the ground leases,
underlying leases and mortgages hereinbefore
mentioned.
Failure 24. If Owner is unable to give possession of the
to give demised premises on the date of the commencement
Possession: of the term hereof, because of the holding-over or
retention of possession of any tenant, undertenant
or occupants or if the demised 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 be procured or if Owner has not
completed any work required to be performed by
Owner, or for any other reason, Owner shall not be
subject to any liability for failure to give
possession on said date and the validity of the
lease shall not be impaired under such
circumstances, nor shall the same be construed in
any way to extend the terms of this lease, but the
rent payable hereunder shall be abated (provided
Tenant is not responsible for Owner's inability to
obtain possession or complete any work required)
soon after Owner shall have given Tenant 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 323-a of the New York Real
Property Law.
No Waiver: 25. The failure of Owner to seek redress for
violation of, or to insist upon the strict
performance of any covenant or condition of this
lease or any of the Rules or Regulations, set
forth or hereafter adopted by Owner, shall not
prevent a subsequent act which would have
originally constituted a violation from having all
the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the
breach of any covenant of this lease shall not be
deemed a waiver of such breach and no provision of
this lease shall be deemed to have been waived by
Owner unless such waiver be in writing signed by
Owner. No payment by Tenant or receipt by Owner of
a lesser amount than the 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 Owner
may accept such check or payment without prejudice
to Owner's right to recover the balance of such
rent or pursue any other remedy in this lease
provided. All checks tendered to Owner as and for
the rent of the demised premises shall be deemed
payment for the account of Tenant. Acceptance by
Owner of rent from anyone other than Tenant shall
not be deemed to operate as an to Owner by the
payor of such rent or as a consent by Owner to an
assignment or subletting by Tenant of the demised
premises to such payor, or as a modification of
the provisions of this lease. No act or thing done
by Owner or Owner's agent during the term hereby
demised shall be deemed as acceptance of a
surrender of said premises and no agreement to
accept such surrender shall be valid unless in
writing signed by Owner. No employee of Owner or
Owner'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 26. It is mutually agreed by and between Owner and
Trial by Jury: Tenant that the respective parties hereto shall
and they hereby do waive trial by jury in any
action, preceeding or counterclaim brought by
either of the parties hereto against the other
(except for personal injury or property damage)
and any matters wherever arising out of or in any
way connected with this lease, the relationship of
Owner 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 Owner commences any
summary proceeding for possession of the premises,
Tenant will not interpose any counterclaim of
whatever nature or description in any such
preceeding.
Inability to 27. This lease and the obligation of Tenant to pay
Perform: 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 Owner is
unable to fulfill any of its obligations under
this lease or to or is delayed for supplying any
service expressly or implicitly to be supplied or
is unable to make, or is delayed in making any
repair, additions, alterations or decorations or
is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or
delayed from so doing by reason of or labor
troubles as any event whatsoever beyond Owner's
sole control including, but not limited to,
government in connection with a National Emergency
or by reason of any rule, order or regulation
government agency or by reason of the conditions
of supply and demand which have been or are
affected by war or other emergency.
Title and 28. Except as otherwise in this lease provided, a
Notices: xxxx, statement, notice or communication which
Owner may desire or be required to give to Tenant,
shall be deemed sufficiently given or rendered to,
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, at 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 Owner must be served by registered or
certified mail addressed to Owner at the address
first hereinabove given or at such other address
as owner shall designate by written notice.
Water 29. If Tenant requires, uses or consumes water for
Charges: any purpose in addition to ordinary lavatory
purposes (of which fact Tenant constitutes Owner
to be the sole judge) Owner may install a water
meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay
Owner 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 Owner may cause such
meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant, as
additional rent. 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
Owner may pay such charges and collect the same
from Tenant, as additional rent. Tenant covenants
and agrees to pay, as additional rent, 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. If the building or the demised premises or
any part thereof is supplied with water through a
meter through which water is also supplied to
other premises Tenant shall pay to Owner, as
additional rent, on the first day of each month,
$50.00 of the total meter charges as Tenant's
portion. Independently of and in addition to any
of the remedies reserved to Owner hereinabove or
elsewhere in this lease, Owner may xxx for and
collect any monies to be paid by Tenant or paid by
Owner for any of the reasons or purposes
hereinabove set forth.
Sprinklers: 30. Anything elsewhere in this lease to the
contrary notwithstanding, if the New York Board of
Fire Underwriters or the New York Fire Insurance
Exchange or any business, department or official
of the federal, state or city government recommend
or require the installation of a sprinkler system
or that any changes, modifications, alterations or
additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system
by reason of Tenant's business, or the location of
partitions, trade fixtures, or other contents of
the demised premises, or for any other reason, or
if any such sprinkler system installations,
modifications, alterations, 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 first insurance date 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
Owner as additional rent the sum of $50.00, 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.
Elevators, 31. As long as Tenant is not in default under any
Heat, of the covenants of this lease Owner shall: (a)
Cleaning: provide necessary passenger elevator facilities on
business days from 8 a.m. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m.; (b) if freight
elevator service is provided, same shall be
provided only on regular business days Monday
through Friday inclusive, and on those days only
between the hours of 9 a.m. and 12 noon and
between 1 p.m. and 9 p.m.; (c) furnish heat, water
and other services supplied by Owner to the
demised premises, when and as required by law, on
business days from 8 a.m. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m.; (d) clean the
marble halls and public partitions of the building
which are used in common by all tenants. Tenant
shall, at Tenant's expense, keep the demised
premises, including the windows, clean and in
order, to the satisfaction of Owner, and for that
purpose shall employ the person or persons or
corporation approved by Owner. Tenant shall pay to
Owner the cost of removal of any of Tenant's
refuse and rubbish from the building halls for the
same shall be rendered by Owner to Tenant at such
time as Owner may elect and shall be due and
payable hereunder, 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 Owner.
Under such circumstances, however, the removal of
such refuse and rubbish by others shall be subject
to such rules and regulations as, in the judgement
of Owner, are necessary for the proper operation
of the building. Owner 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
judgement of Owner desirable or necessary to be
made, until said repairs, alterations,
replacements or improvements shall have been
completed. If the building of which the demised
premises are a part supplies manually operated
elevator service, Owner 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 Owner pursues with
due diligence the completion of the alterations.
32. $12,696.66 as security for the faithful
performance and observance by Tenant of the terms,
provisions and conditions of this lease; it is
agreed that in the event Tenant defaults in
respect of any of the terms, provisions and
conditions of this lease, including, but not
limited to, the payment of rent and additional
rent, Owner may use, apply or retain the whole or
any part of the security so deposited to the
extent required for the payment of any rent and
additional rent or any other sum as to which
tenant is in default or for any sum which Owner
may expend or may be required to expend by reason
of Tenant's default in respect of any of the
terms, covenants and conditions of this lease,
including but not limited to, any damages or
deficiency in the re-letting of the premises,
whether such damages or deficiency accrued before
or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and
faithfully comply with all of the terms,
provisions, covenants and conditions of this
lease, the security shall be returned to Tenant
after the date fixed as the end of the Lease and
after delivery of entire possession of the demised
premises to Owner. In the event of a sale of the
land and building or leasing of the building, of
which the demised premises form a part, Owner
shall have the right to transfer the security to
the vendee or lessee and Owner shall thereupon be
released by Tenant from all liability for the
return of such security; and Tenant agrees to look
to the new Owner solely for the return of said
security, and it is agreed that the provisions
hereof shall apply to every transfer or assignment
made of the security to a new Owner. Tenant
further covenants that it will not assign or
encumber or attempt to assign or encumber the
monies deposited herein as security and that
neither Owner nor its successors or assigns shall
be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
Captions: 33. 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: 34. The term "Owner" as used in this lease means
only the owner of the fee or of the leasehold of
the building, 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 Owner shall be and hereby
is entirely freed and relieved of all covenants
and obligations of Owner hereunder, and it shall
be deemed and construed without further agreement
between the parties or their successors in
interest, or between the parties and the
purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that
the purchaser or the lessee of the building has
assumed and agreed to carry out any and all
covenants and obligations of Owner hereunder. The
words "re-enter" and "re-entry" as used in this
lease are not restricted to their technical legal
meaning. The term "rent" includes the annual
rental rate whether so-expressed or expressed in
monthly installments, and "additional rent."
"Additional rent" means all sums which shall be
due to new Owner from Tenant under this lease, in
addition to the annual rental rate. The term
"business days" as used in this lease, shall
exclude Saturdays (except such portion thereof as
is covered by specific hours in Article 31
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: 35. If an excavation shall be made upon land
adjacent to the demised premises, or shall be
authorized to be authorized to cause such
excavation, license to enter upon the demised
premises for the purpose of doing such work as
said person shall deem necessary to preserve the
wall or the building of which demised premises
form a part from injury or damage and to support
the same by proper foundations without any claim
for damages or indemnity against Owner, or
diminution or abatement of rent.
Rules and 36. Tenant and Tenant's servants, employees,
Regulations: agents, visitors, and licensees shall observe
faithfully, and comply strictly with, the Rules
and Regulations annexed hereto and such other and
further reasonable Rules and Regulations as Owner
or Owner's agents may from time to time adopt.
Notice of any additional rules or regulations
shall be given in such manner as Owner may elect.
In case Tenant disputes the reasonableness of any
additional Rule or Regulation hereafter made or
adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the
reasonableness of such Rule or Regulation for
decision in the New York office of the American
Arbitration Association, whose determination shall
be final and conclusive upon the parties hereto.
The right to dispute the reasonableness of any
additional Rule or Regulation upon Tenant's part
shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon
Owner within ten (10) days after the giving of
notice thereof. Nothing in this lease contained
shall be construed to impose upon Owner any duty
or obligation to enforce the Rules and Regulations
or terms, covenants or conditions in any other
lease, as against any other tenant and Owner shall
not be liable to Tenant for violation of the same
by any other tenant, its servants, employees,
agents, visitors or licensees.
Glass: 37. Owner shall replace, at the expense of the
Tenant, any and all plate and other glass damaged
or broken from any cause whatsoever in and about
the demised premises. Owner may insure, and keep
insured, at Tenant's expense, all plate and other
glass in the demised premises for and in the name
of Owner. Bills for the premiums therefor shall be
rendered by Owner to Tenant at such times as Owner
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.
Estoppel 38. Tenant, at any time, and from time to time,
Certificate: upon at least 10 days' prior notice by Owner,
shall execute, acknowledge and deliver to Owner,
and/or to any other person, firm or corporation
specified by Owner, a statement certifying that
this Lease is unmodified in full force and effect
(or, if there have been modifications, that the
same is in full force and effect as modified and
stating the modifications), stating the dates to
which the rent and additional rent have been paid,
and stating whether or not there exists any
default by Owner under this Lease, and, if so,
specifying each such default.
Directory 39. If, at the request of and as accommodation to
Board Tenant, Owner shall place upon the directory board
Listing: in the lobby of the building, one or more names of
persons other than Tenant, such directory board
listing shall not be construed as the consent by
Owner to an assignment or subletting by Tenant to
such person or persons.
Successors and 40. The covenants, conditions and agreements
Assigns: contained in this lease shall bind and inure to
the benefit of Owner and Tenant and their
respective heirs, distributees, executors,
administrators, successors, and except as
otherwise provided in this lease, their assigns.
--------------------
Security shall at
all times be no less
than two months
fixed and Additional
Rent.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
Corp.
Seal
-----------------------------------
Witness for Owner: FIFTH AVENUE WEST ASSOCIATES, L.P.
BY XXXXXX XXXXXX, GENERAL PARTNER
/s/ Xxxxx Xxxxxx
--------------------------- -------------------------------------------[L.S.)
Corp.
/s/ Xxxx Xxxxxxxxx Seal
-----------------------------------
Witness for Tenant WEBGENESIS, INC.
BY (PLEASE PRINT): XXXX XXXXXXXXX
/s/ Xxxxxxx Xxxxxxxx CEO
--------------------------- TITLE:-------------------------------------[L.S.)
DATE: 11/17/97
ACKNOWLEDGMENTS
CORPORATE TENANT INDIVIDUAL TENANT
STATE OF NEW YORK, ss: STATE OF NEW YORK, ss:
County of County of
On this day of , 19 , before
me personally came On this day of , 19 ,
before me personally came to me
to me known, who being by me duly known and known to me to be
sworn, did depose and say that he the individual described in
resides in , that he is and who, as TENANT, executed the
the of the corporation foregoing instrument and
described and which executed the acknowledged to me that he executed
foregoing instrument, as TENANT; the same.
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.
------------------------------
IMPORTANT - PLEASE READ
RULES AND REGULATIONS
ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or
encumbered by any Tenant or used for any purpose other than for ingress or
egress from the demised premises and for delivery of merchandise and
equipment in a prompt and efficient manner using elevators and passageways
designated for such delivery by Owner. There shall not be used in any
space, or in the public hall of the building, either by any Tenant or by
jobbers or others in the delivery or receipt of merchandise, any hand
trucks, except those equipped with rubber tires and sideguards. If said
premises are situated on the ground floor of the building, Tenant thereof
shall further, at Tenant's expense, keep the sidewalk and curb in front of
said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or
constructed and no sweepings, rubbish, rags, acids or other substances
shall be deposited therein, and the expense of any breakage, stoppage, or
damage resulting from the violation of this 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 building; 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 Owner or other occupants of the buildings 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 buildings is prohibited.
4. No awnings or other projections shall be attached to the outside
walls of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, printed 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 the prior written consent of Owner, except that the name of Tenant
may appear on the entrance door of the premises. In the event of the
violation of the foregoing by any Tenant, Owner may remove same without any
liability and may charge the expense incurred by such removal to Tenant or
Tenants violating this rule. Interior signs on doors and directory tablet
shall be inscribed, painted or affixed for each Tenant by Owner at the
expense of such Tenant, and shall be of a size, color and style acceptable
to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the
prior written consent of Owner, and as Owner may direct. No Tenant shall
lay linoleum, or other similar floor covering, so that the same shall come
in direct contact with the floor of the demised premises, and, if linoleum
or other similar floor covering is desired to be used as interlining of
builder's deadening felt shall be first affixed to the floor, by a paste or
other material, soluble in water, the use of cement or other similar
adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any Tenant, nor shall any changes be made in
existing locks or mechanism thereof. Each Tenant must, upon the termination
of his Tenancy, restore to Owner all keys of stores, offices and toilet
rooms, either furnished to, or otherwise procured by, such Tenant, and in
the event of the loss of any keys so furnished, such Tenant shall pay to
Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky
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 Owner.
Owner reserves the right to inspect all freight to be brought into the
building and to exclude from the building all freight which violates any of
these Rules and Regulations of the lease 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 Owner, and at hours and under regulations fixed by Owner.
Canvassing, soliciting and peddling in the building is prohibited and each
Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the
hours of 6 p.m. and 8 a.m. on business days, after 1 p.m. on Saturdays, and
at all hours on Sundays and legal holidays all persons who do not present a
pass to the building signed by Owner. Owner will furnish passes to persons
for whom say Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be
liable to Owner for all acts of such persons. Notwithstanding the
foregoing, Owner shall not be required to allow Tenant or any person to
enter or remain in the building, except 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.
11. Owner shall have the right to prohibit any advertising by any
Tenant which in Owner's opinion, tends to impair the reputation of the
building or its desirability as a loft building, and upon written notice
from Owner, Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on
the demised premises, any inflammable, combustible or explosive fluid,
material, chemical or substance, or cause or permit any odors of cooking or
other processors, or any unusual or other objectionable odors to permeate
in or emanate from the demised premises.
13. Tenant shall not use the demised premises in a manner which
disturbs or interferes with other Tenants in the beneficial use of their
premises.
*MERGE (ADD ON) AT THIS POINT*
------------------------------
COMMERCIAL USE ONLY - NO LIVING ALLOWED
---------------------------------------
RIDER OF AGREEMENT OF LEASE ("LEASE")
MADE AS OF JANUARY 14, 1997
BY AND BETWEEN
FIFTH AVENUE WEST ASSOCIATES, L.P., AS OWNER
AND
WEBGENESIS, INC., AS TENANT
THIS RIDER IS INTENDED TO BE AFFIXED TO THE LEASE. IN THE EVENT OF ANY
INCONSISTENCY BETWEEN THE PROVISIONS OF THIS RIDER AND THE PRINTED PORTION
OF THIS LEASE, THE PROVISIONS OF THIS RIDER SHALL CONTROL.
ARTICLE 41 - FIXED RENT AND ADDITIONAL RENT
-------------------------------------------
Tenant shall pay to Owner Fixed Rent during the first twelve (12)
months of the term an amount of $75,400.00 per year, payable in equal
monthly installments of $6,283.33 in advance on the first business day of
each and every calendar month.
For the purpose of this lease the Base Rent shall be as follows,
payable in equal monthly installments:
February 1st, 1997 until January 31st, 1998 - $75,400.00
February 1st, 1998 until January 31st, 1999 - $75,400.00
February 1st, 1999 until January 31st, 2000 - $81,200.00
February 1st, 2000 until January 31st, 2001 - $87,000.00
February 1st, 2001 until January 31st, 2002 - $87,000.00
Commencing February 1st, 1997, and each anniversary of this Lease on
February 1st of each year thereafter through and including February 1st,
2001, there shall be Fixed annual increases of three and one-half (3.5%)
percent over the Base Rent payable in the immediately preceding year.
Provided no default exists under this Lease, Fixed Rent for the month
of February 1997 shall be reduced to 0 to give effect to the fact a full
month's rent was received by the Owner at the signing of this Lease. Fixed
Rent for the months of March, April and May 1997 shall be further reduced
to 0 to give effect to a Rent Abatement. No part of the Rent Abatement
shall be granted unless no default exists under the Lease.
Provided Tenant notifies Owner of its intention to exercise its option
in writing via Certified mail, return receipt requested, at least six
months prior to the expiration of the initial Lease term, Tenant shall have
the option to extend this Lease for a period of five (5) years, commencing
February 1st, 2002 and ending January 1st, 2007. Fixed Rent for the first
year of the option period shall be the then current Market Rent, which
shall be determined in accordance with the procedure set forth hereinafter.
Fixed Rent for each remaining year of the option period shall increase
three and one-half percent (3.5%) over the Fixed Rent payable in the
immediately preceding year.
Market Rent:
------------
The parties shall have thirty (30) days after Owner receives Tenant's
extension option notice in accordance herewith in which to agree on the
Market Rent for the Extended Term. If the parties agree on the Market Rent
during such thirty (30) day period, Owner and Tenant shall execute an
amendment to this Lease setting forth the Market Rent for the Extended
Term.
If the parties are unable to agree on the Market Rent within the
thirty (30) day period, then, within twenty (20) days after the expiration
of that period, each party, at its cost and by giving notice to the other
party, shall appoint a qualified M.A.I. real estate appraiser with at least
5 years' full-time commercial appraisal experience in the New York
metropolitan area to appraise and set the Market Rent for the Demised
Premises. The Market Rent shall be based on new leases for comparable space
in at least five (5) comparable buildings in the area in which the Demised
Premises are located and based upon the Demised Premises as improved,
whether such improvements were made by Owner or Tenant. If five (5)
comparables are not available, the appraiser shall use such other Market
data as is relevant, with appropriate adjustments consistent with accepted
appraisal practices. If a party does not appoint such an appraiser within
the aforementioned period, the single appraiser appointed shall be the sole
appraiser and shall set the Market Rent for the Demised Premises. The two
appraisers appointed by the parties as stated in this paragraph shall meet
promptly and attempt to establish the Market Rent for the Demised Premises.
If they are unable to agree within twenty (20) days after the second
appraiser has been appointed, they shall select a third appraiser meeting
the qualifications stated in this paragraph, within ten (10) days after the
last day the two appraisers are given to set the Market Rent. Each of the
two parties shall bear one half (1/2) of the cost of appointing and paying
the third appraiser. The third appraiser shall be a person who has not
previously acted in any capacity for either party.
Within thirty (30) days after the selection of the third appraiser,
the third appraiser shall set the Market Rent for the Demised Premises.
RIDER TO AGREEMENT OF LEASE ("LEASE")
MADE AS OF JANUARY 14, 1997
BY AND BETWEEN
FIFTH AVENUE WEST ASSOCIATES, L.P., AS OWNER
AND
WEBGENESIS, INC., AS TENANT
THIS RIDER IS INTENDED TO BE AFFIXED TO THE LEASE. IN THE EVENT OF ANY
INCONSISTENCY BETWEEN THE PROVISIONS OF THIS RIDER AND THE PRINTED PORTION
OF THIS LEASE, THE PROVISIONS OF THIS RIDER SHALL CONTROL.
ARTICLE 42 - NOTICES
--------------------
Any notice, request, consent, approval, demand or other communication
permitted or required to be given pursuant to the terms, covenants and
conditions of this Lease, or pursuant to any law or governmental regulation
(collectively, "Notices"), shall be in writing and, unless otherwise
required by such law or regulation, be sent registered or certified mail
return receipt requested to the parties at the addresses set forth in this
Lease.
ARTICLE 43 - EXCULPATION
------------------------
If Owner or any successor in interest in an individual, joint venture,
tenancy-in-common, general or limited partnership, unincorporated
association or other unincorporated aggregate of individuals (collectively,
"unincorporated Owner") and shall at any time have any liability under,
pursuant to or in connection with this Lease, neither Tenant nor any other
party shall seek any personal or money judgment against unincorporated
Owner or in any other way under or pursuant to this Lease. Any attempt by
Tenant or others to seek any such personal liability or monetary obligation
shall, in addition to and not in limitation of unincorporated Owner's other
rights, powers, privileges and remedies under this Lease, immediately vest
unincorporated Owner with the unconditional right to cancel this Lease on
three (3) days' notice to Tenant.
ARTICLE 44 - BROKER
-------------------
Tenant represents and warrants that it has not dealt with any broker
or brokers other than XXXXXX X. XXXXXXX, INC. and XXXX XXXXXXXXX, LICENSED
REAL ESTATE BROKER in the negotiation of this Lease. Tenant shall indemnify
and hold Owner harmless from and against any and all loss, liability,
claims or expenses (including, without limitation, attorneys' fees) that
Owner may incur by reason of the breach of the foregoing representation or
by reason of the claim of any brokers in connection with this transaction
or arising out of any assignment of this Lease or sublease of all or a part
of the Demised Premises by Tenant.
ARTICLE 45 - LATE CHARGES
-------------------------
If Tenant fails to pay any installment of Fixed Rent or Additional
Rent by the fifth (5th) day of each month, Tenant shall be required to pay
a late charge of eight (8) cents for each dollar unpaid. Such charge is to
be computed retroactively to the date on which Fixed Rent or Additional
Rent became due and payable. The late charge is intended to compensate
Owner for additional expenses incurred in processing such late payments and
is not intended to prevent Owner from exercising any other available
remedies against Tenant.
ARTICLE 46 - TENANT COVENANTS
-----------------------------
46.1 Tenant shall not make any claim against Owner for any injury or
damage to Tenant or to any other person or for any damage (by water,
malicious mischief or otherwise) to, or loss of, or loss of use of (by
theft, mysterious disappearance or otherwise) any property of Tenant or of
any other person, or property irrespective of the cause of such injury,
damage or loss, unless caused by the negligence of Owner, its agents,
servants or employees, in the operation or maintenance of the Demised
Premises or the Building. No property other than such as might normally be
brought upon or kept in the Demised Premises as an incident to the
reasonable use of the Demised Premises for the purposes herein specified
shall be brought upon or kept in the Demised Premises.
46.2 Tenant shall, at its sole cost and expense:
46.2.1 Maintain the Demised Premises in a clean and sanitary
manner. If tenant uses a cleaning service in the evening after 6:00 PM or
on weekends, that service shall be an approved service designated by the
Owner and used substantially in the Building.
46.2.2 Remove all rubbish and other debris from the Demised
Premises to such locations in the Building as may be reasonably specified
by Owner from time to time and under conditions approved by Owner.
46.2.3 Obtain and maintain a service contract (or contracts) with
a person or company reasonably acceptable to Owner for the extermination of
vermin, rats, mice, flies and other insects in the Demised Premises and use
all reasonable diligence in accordance with the best prevailing methods for
doing so in the Borough of Manhattan to prevent and exterminate vermin,
rats, mice, flies and other insects in, on or about the Demised Premises.
46.3 Obtain and maintain an annual service contract for the air
conditioning unit(s), if any, within the Demised Premises, and pay directly
for individual repairs not covered by said contract. In addition, Tenant
agrees to obtain and pay directly for any and all permits and/or licenses
associated with the operation of the air conditioning unit(s).
Unless specified or defined in this lease, or otherwise agreed between
Owner and Tenant, any and all air conditioning equipment existing or
installed by either Owner or Tenant in the demised premises at the time or
during the term of this lease shall remain in the demised premises and
shall be considered leasehold improvements at the expiration of this lease
or upon vacating of the demised premises by tenant either willfully or
under any other terms or conditions of this lease.
46.4 If Tenant shall, at its sole cost and expense, place and maintain
machines and mechanical equipment located in the Demised Premises that
cause noise or vibration that may be transmitted to the structure of the
Building (to such a degree as to be reasonably objectionable to Owner or
any occupant of the Building) in settings of cork, rubber or spring type
vibration eliminators sufficient to eliminate noise or vibration.
46.5 Tenant shall not permit any cooking on the Demised Premises,
whether hot or cold.
46.6 Tenant has inspected the Demised Premises and agrees to take them
as they are in an "as is" condition, and agrees to bear all expenses of
making nonstructural repairs to the Demised Premises, including without
limitation, plumbing, electrical work, fixtures and all interior repairs,
in a manner consistent with section 3.
46.7 Tenant agrees that it shall not permit its employees and/or
visitors to congregate in the Building lobby, the public corridors or in
front of the Building. Tenant expressly agrees that any violation of this
Article shall be a material default under this Lease.
46.8 Tenant shall not bring any pets into the Demised Premises or
permit any pets to be brought into or kept within the Demised Premises.
ARTICLE 47 - INSURANCE
----------------------
The Tenant shall, at its sole cost and expense, obtain and at all
times during the Term maintain with responsible insurance carriers
acceptable to Owner licensed to do business in the State of New York,
insurance covering the Demised Premises for the mutual benefit of Owner and
Tenant as follows:
47.1 Fire Insurance with broad form extended coverage endorsement from
time to time available, for an amount not less than the full replacement
value of Tenant's Improvements and Tenant's personal property located in
the Demised Premises. "Full replacement value" shall be determined at the
request of Owner by an architect, appraiser, appraisal company or one of
the insurers selected by Owner and paid for by Tenant, but such
determination shall not be required to be made more frequently than once
every two (2) years. No omission on the part of Owner to request any such
determination shall relieve Tenant of any of its obligations under this
Article.
47.2 Comprehensive General Liability Insurance, with such limits as
may be reasonably requested by Owner from time to time, but not less than a
combined single limit of $1,500,000.00.
47.3 All required insurance policies shall name Owner as an additional
insured or loss payee, as the case may be, and shall include a provision
that they shall not be canceled without thirty (30) days' prior written
notice to Owner. Tenant shall deliver copies of all required insurance
policies or certificates evidencing such coverage prior to the Commencement
Date and renewal policies prior to the expiration of the existing policies
together with evidence of the payment of premiums therefore.
47.4 Tenant shall pay to Owner an Additional Rent an amount equal to
any additional insurance premium charged to Owner by Owner's insurers as a
direct or indirect result of Tenant's tenancy in the Building.
47.5 Tenant can only deliver to or remove from the Demised Premises
any freight, furniture, business equipment, merchandise and bulky matter of
any description, on the freight elevators and/or through the service
entrances and corridors of the Building and only during the hours and in
the manner approved by Owner from time to time. Tenant can only be
permitted to deliver to or remove from the Demised Premises any of the
items described in this article after Tenant has given Owner three (3) days
prior written notice of Tenant's intention to make such delivery or
removal, and provides Owner with written evidence that such delivery or
removal is being made by an individual or an entity who possesses general
liability and workers compensation insurance or other insurance as may be
required by Owner in an amount which Owner deems to be sufficient.
ARTICLE 48 - ADDITIONAL REMEDIES
--------------------------------
48.1 If the Term shall terminate pursuant to Article 17 or otherwise,
then:
48.1.1 Tenant shall pay to Owner all Fixed Rent and Additional
Rent required to be paid by Tenant to the date upon which the Term shall
have terminated or to the date of re-entry upon the Demised Premises by
Owner, as the case may be;
48.1.2 Owner shall be entitled to retain all moneys, if any, paid
by Tenant to Owner, whether an advance rent, security or otherwise;
48.1.3 Tenant shall be liable for and shall pay to Owner, as
damages, any deficiency between the Fixed Rent and Additional Rent payable
for the period which otherwise would have constituted the unexpired portion
of the Term (conclusively presuming the Additional Rent to be the same as
was payable for the twelve (12) month period immediately preceding such
termination or re-entry) and the net amount, if any, of rents collected
under any reletting effected pursuant to the provisions of this Article for
any part of such period (first deducting from the rents collected under any
such reletting all of Owner's expenses in connection with the termination
of this Lease or Owner's re-entry upon the Demised Premises and, in
connection with such reletting, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, alteration costs and other
expenses); and
48.1.4 Any such deficiency shall be paid in monthly installments
by Tenant on the days specified in this Lease for the payment of
installments of Fixed Rent. Owner shall be entitled to recover from Tenant
each monthly deficiency as the same shall arise and no suit to collect the
amount of the deficiency for any month shall prejudice Owner's right to
collect the deficiency for any subsequent month by a similar proceeding.
Alternatively a suit or suits for the recovery of such deficiencies may be
brought by Owner from time to time at its election.
48.1.5 Notwithstanding anything herein to the contrary, the
Premises herein mentioned are demised for the whole term with a whole
amount of the rent herein reserved due and payable at the time of the
making of this Lease, and the payment of rent in installments as above
provided in for the convenience of tenant only and if in default of any
installment of rent, then the whole of the rent reserved for the whole of
the period then remaining unpaid, shall, at the landlord's option, at once
become due and payable without notice or demand.
ARTICLE 49 - CERTIFICATES BY TENANTS
------------------------------------
At any time and from time to time, Tenant, for the benefit of Owner
and the lessor under any ground lease or underlying lease or the holder of
any leasehold mortgage affecting any ground lease or underlying lease, or
of any fee mortgage covering the land or the land and building containing
the Demised Premises, on at least five (5) days prior written request by
Owner, will deliver to Owner a statement, certifying that this Lease is not
modified and is in full force and effect (or if there shall have been
modifications the same is in full force and effect as modified, and stating
the modifications), the commencement and expiration dates hereof, the dates
to which the Fixed Rent, Additional Rent and other charges have been paid,
and whether or not, to the best knowledge of the signer of such statement,
there are any then existing defaults on the part of either Owner or Tenant
in the performance of the terms, covenants and conditions of this Lease,
and if so, specifying the default of which the signer of such statement has
knowledge.
Owner shall from time to time provide upon ten (10) days prior written
request by Tenant a statement certifying as to status of rent and
Additional Rent payments due under this Lease and/or that lease has not
been modified and remains in full force and effect.
ARTICLE 50 - LEGAL REQUIREMENTS
-------------------------------
If at any time during the term of this Lease, the fire safety law
requirements of the City of New York pursuant to Local Law #5 of 1973 or
otherwise ("Fire Requirements") or the masonry or exterior wall
requirements of the City of New York pursuant to Local Law #10 of 1980 or
otherwise ("Masonry Requirements") or life safety requirements of the City
of New York pursuant to Local Law #16 of 1984 or otherwise ("Safety
Requirements") or any other laws or requirements of the City of New York or
any agency having jurisdiction ("Other Requirements") impose any
obligations or requirements upon Owner to perform any alteration, changes,
installations or improvements (collectively "changes") to the building
hereof and/or the Demised Premises, then Tenant shall pay to Owner as
Additional Rent five point eight (5.8%) percent ("Tenant's Payment") of all
costs and expense incurred by Owner in complying with the Fire
Requirements, Masonry Requirements or other Requirements. Tenant's Payment
shall be due and payable to Owner within thirty (30) days after rendition
of a xxxx therefore accompanied by a statement setting forth the changes
performed by Owner. The obligation of Tenant in respect of such Additional
Rent shall survive the expiration of this Lease. Notwithstanding anything
to the contrary in this Paragraph, should Tenant's use, occupancy, or
installation require specific compliance under such Requirements above,
then Tenant shall be responsible for 100% of the cost of said Changes.
ARTICLE 51 - ALTERATIONS
------------------------
Anything in Article 3 to the contrary notwithstanding, Owner shall not
unreasonably withhold or delay approval of written requests of Tenant to
make non-structural interior alterations, decorations, additions and
improvements (herein referred to as "alterations") in the Demised Premises,
provided that such alterations do not affect utility services or plumbing
and electrical lines or other systems of the building, and provided that
all such alterations shall be performed in accordance with the following
conditions:
51.1 All such alterations costing more than $2,500.00 shall be
performed in accordance with plans and specifications first submitted to
Owner for its prior written approval.
51.2 All alterations shall be done in a good and workmanlike manner.
Alterations shall be done in compliance with all other applicable
provisions of this Lease and with all governmental authorities having
jurisdiction; and Tenant shall, prior to the commencement of any such
alterations, at its sole cost and expense, obtain and exhibit to Owner any
governmental permit required in connection with such alterations.
51.3 All work in connection with alterations shall be performed with
union labor having the proper jurisdictional qualifications.
51.4 Tenant shall keep the building and the Demised Premises free and
clear of all liens for any work or material claimed to have been furnished
to Tenant or to the Demised Premises.
51.5 Prior to the commencement of any work by or for Tenant, Tenant
shall furnish to Owner Certificates of Insurance evidencing the existence
of the following insurance:
51.5.1 Worker's compensation insurance covering all persons
employed for such work and with respect to whom death or bodily injury
claim could be asserted against Owner, Tenant or the Demised Premises.
51.5.2 General liability insurance naming Owner, its designees,
and Tenant as insured, with limits of not less than $1,000,000 in the event
of bodily injury to one person and not less than $1,000,000, in the event
of bodily injury to any number of persons in any one occurrence, and with
limits of not less than $500,000 for property damage. Tenant, at its sole
cost and expense, shall cause all such insurance to be maintained at all
times when the work to be performed for or by Tenant is in progress. All
such insurance shall be issued by a company authorized to do business in
New York and all policies, or certificates therefore, issued by the insurer
and bearing notations evidencing the payment of premiums, shall be
delivered to Owner.
51.6 All work to be performed by Tenant shall be done in a manner
which will not unreasonably interfere with or disturb other Tenants and
occupants of the building.
51.7 Any alterations to be made by Tenant (other than plumbing and
electrical work) may be performed by any reputable contractor or mechanic
(collectively, "Contractor") selected by Tenant and approved by Owner,
which approval Owner agrees it will not unreasonably withhold or delay,
provided the Contractor's performance of the alterations would not result
in any labor discord in the Building.
51.8 Tenant may, at any time during the Term, remove any alteration
made by Tenant, solely at its expense, provided Tenant promptly repairs any
damage resulting from such removal.
51.9 Any restoration or repair which Tenant is required to make
(whether structural or non-structural) shall be of a quality or class equal
to the then Building Standard.
51.10 Tenant shall pay to Owner the sum of One Hundred Dollars
($100.00) in connection with any Tenant Changes or Alterations, which must
be approved of by Owner in accordance with the term of this Article.
51.11 The time during which Owner may make Owner's elections pursuant
to Article 3 hereof shall be extended to include a period commencing thirty
(30) days prior to the expirations or other termination of this Lease or
any renewal or extension thereof and terminating ninety (90) days
thereafter. Tenant agrees that Owner's rights hereunder shall survive the
expiration of this Lease or any renewal or extension thereof.
51.12 Nothing in this Lease shall be construed in any way as
constituting the permission, consent or request of the Owner, express or
implied, through act or omission to act by inference or otherwise, to any
contractor, subcontractor, laborer, or materialman for the performance of
any labor or the furnishing of any materials for any specific improvement,
installation, addition, decoration, alteration, or repair of the Demised
Premises or as giving the Tenant the right, power, or authority to contract
for or permit the rendering of any service or the furnishing of any
material that would give rise to the filing of any mechanic's lien against
the fee of the Demised Premises.
ARTICLE 52 - CONTRACTORS
------------------------
When in this Lease the Tenant shall take or be required to take any
action which may affect or alter the plumbing or electrical facilities or
services furnished by Owner in the Building, the Demised Premises, or any
portion thereof, Tenant shall only be entitled to have such work performed
by the building contractor designated from time to time by Owner, in its
sole and absolute discretion, to perform such alteration and Owner shall
not be required to permit, and Tenant shall not be entitled to use, any
contractor not designated by Owner's selected contractors', provided,
however, that such contractors' bids do not exceed by more than 15% the
bids for work of comparable quality, workmanship and specifications for
performing such alterations submitted by Tenant's contractors. If Tenant's
contractor's bids are more than 15% below the bids of Owner's contractors,
Owner agrees not to unreasonably withhold or delay approval of Tenant's
performance of such alteration. Notwithstanding the foregoing, Tenant's
contractors must be properly licensed.
ARTICLE 53 - TENANT'S CONDEMNATION CLAIM
----------------------------------------
Anything in Article 10 to the contrary notwithstanding, Tenant shall
have the right to make a claim against the condemning authority for the
value of its trade fixtures and business machines and equipment taken in
the condemnation and for reimbursement of its resultant moving expenses.
ARTICLE 54 - ACCESS TO THE DEMISED PREMISES
-------------------------------------------
Supplementing the provisions of Article 13, Owner's right to enter the
Demised Premises and its access thereto to make repairs and Alterations and
to erect and maintain pipes and conduits (except in the event of an
emergency, in which event that right shall be unrestricted) shall be
subject to the following conditions:
54.1 Owner shall give Tenant reasonable notice of proposed, entry or
access;
54.2 Owner shall not be obligated to perform work other than during
normal business hours.
ARTICLE 55 - SQUARE FOOTAGE
---------------------------
Tenant acknowledges that no representations have been made by the
Owner as to the amount of square footage in the Demised Premises,
irrespective of any reference in this Lease to square footage for any
computation. The Tenant has inspected the Demised Premises and relies upon
its own judgment in computing the square footage.
ARTICLE 56 - PLATE GLASS
------------------------
Tenant, at its own cost and expense, shall replace all damaged or
broken plate glass or other windows in or about the Demised Premises.
ARTICLE 57 - ADDITIONAL RENT
----------------------------
All payments other than the Fixed Rent to he made by Tenant pursuant
to this Lease shall be deemed Additional Rent and, in the event of any
non-payment, Owner shall have all rights and remedies provided for herein
or by law for non-payment of rent.
ARTICLE 58 - CONDITIONAL LIMITATION
-----------------------------------
If Tenant defaults in the payment of Fixed or Additional Rent, or in
making any other payment required for a total of two (2) months, whether or
not consecutive, in any twelve (12) month period, and Owner shall have
served upon Tenant a petition and notice of petition to dispossess Tenant
by summary proceedings for any one or both of those months, then,
notwithstanding that those defaults shall have been cured prior to the
entry of a judgment against Tenant, any further similar default shall be
deemed to be deliberate and Owner may require Tenant to deposit two
additional months security deposit and/or at Owner's option Owner may serve
a written three (3) days' notice of cancellation of this Lease upon the
Tenant, and upon the expiration of that three (3) days, whether or not
Tenant has paid its rent within that period, this Lease shall end and
expire as fully and completely as if the expiration of such three (3) day
period were the day herein definitely fixed for the end and expiration of
this Lease and the Term, and Tenant shall remain liable as elsewhere
provided in the Lease.
ARTICLE 59 - UTILITY INCREASE
-----------------------------
Intentionally Omitted
ARTICLE 60 - GAS AND WATER
--------------------------
Tenant shall make its own arrangements with the public utility company
or companies or such New York City agencies servicing the Demised Premises
for the furnishing of and payment of charges for gas and water. In no event
shall Owner be responsible for charges for any such service. If gas or
water is used in the Demised Premises, Tenant covenants to install the
appropriate gas cutoff devices (manual and automatic) and motors for each
service at Tenant's own cost and expense. Anything to the contrary in
Article 29 of this Lease notwithstanding, water charges contained in
Article 29 of this Lease are for the use of existing lavatories and Tenant
must install a meter for any other use of water in or about the Demised
Premises.
ARTICLE 61 - NOISE
------------------
Tenant shall not permit noise to emanate from the premises at a sound
level which shall in any way disturb other tenants of the building or at a
level that exceeds the level of sound emanating from other floors for the
building. This Article shall directly bind any successors in interest to
the Tenant. Tenant agrees that if at any time Tenant violates any of the
provisions of this Article, such violation shall be deemed a breach of a
substantial obligation of the terms of this Lease.
ARTICLE 62 - PORNOGRAPHY
------------------------
Tenant agrees that the value of the Demised Premises substantially
diminished and the reputation of Owner and the partners of the Owner will
be seriously injured if the premises are used for any obscene or
pornographic purposes or any sort of commercial sex establishment. Tenant
agrees that tenant will not bring or permit any obscene or pornographic
material on the premises, and shall not conduct or permit any obscene, nude
or semi-nude live performances on the premises, nor permit use of the
premises for nude modeling, rap sessions, or as a massage parlor. Tenant
also agrees that it will not permit the production or processing of any
video tape, film or photography on the premises which depict explicit
sexual acts. Tenant agrees further that it will not permit any of the
herein mentioned uses by any sublessee or assignee of the premises. This
Paragraph shall bind successors in interest to the Tenant. Tenant agrees
that any violation of the term of this Paragraph shall be deemed a breach
of a substantial obligation of the Tenant under this Lease. Pornographic
material, for purposes of this Paragraph, is defined as any written or
pictorial matter with prurient appeal or any object or instrument primarily
used for lewd or prurient sexual activity.
ARTICLE 63 - ODORS
------------------
Tenant shall not cause or permit any unusual or objectionable odors,
by-products or waste material to emanate from the Demised Premises. Tenant
covenants that it will hold Owner harmless against all claims, damages or
causes of action for damages arising after the commencement of the term of
this Lease and will indemnify the Owner from any suits, orders or decrees
and judgments entered therein, brought on account of any such emanation
from the Demised Premises of unusual or objectionable odors, by-products or
waste material. Tenant covenants to pay any attorney's fees and other legal
expenses incurred by owner in connection with any claim or suit as
described in this Paragraph.
ARTICLE 64 - OWNER'S COSTS BY TENANT'S DEFAULTS
-----------------------------------------------
If Owner, as a result of a default by Tenant of any of the provisions
of this Lease, including the covenants to pay rent and/or Additional Rent,
makes any expenditure or incurs any obligations for the payment of money,
including but not limited to attorney's fees, in instituting, prosecuting
or defending any action or proceeding, such sums so paid or obligations so
incurred with interest and costs shall be deemed to be Additional Rent
hereunder and shall be paid by Tenant to Owner within five (5) days of
rendition of any xxxx or statement to Tenant therefore, and if any
expenditure is incurred in collecting such obligations, such sum shall be
recoverable by Owner as additional damages.
ARTICLE 65 - HOLDING OVER
-------------------------
If Tenant holds over in possession after the expiration or sooner
termination of the original term or of any extended term of this Lease,
such holding over shall not be deemed to extend the term or renew the
Lease, but such holding over hereafter shall continue upon the covenants
and conditions herein set forth, except that the charge for use and
occupancy of such holding over for each calendar month or part thereof
(even if such part shall be a small fraction of a calendar month) shall be
the sum of:
65.1 One-twelfth (1/12) of the highest annual rent rate set forth on
Page One of this Lease, times two point five (2.5) plus
65.2 One-twelfth (1/12) of annual Additional Rental, which annual
Additional Rental would have been payable pursuant to this Lease had this
Lease not expired, plus
63.3 Those other items of Additional Rent (not annual Additional Rent)
which would have been payable monthly pursuant to this Lease, had this
Lease not expired, which total sum Tenant agrees to pay to Owner promptly
upon demand, in full, without set-off or deduction. Neither the billing nor
the collection of use and occupancy charge shall be deemed a waiver of any
right of Owner to collect damages for Tenant's failure to vacate the
Demised Premises after the expiration or sooner termination of this Losses.
The aforesaid provisions of this Article shall survive the expiration of
this Lease.
ARTICLE 66 - DEPOSIT OF CHECKS
------------------------------
Owner's deposit of any checks delivered by Tenant simultaneously with
Tenant's execution and delivery of this Lease shall not constitute Owner's
execution and delivery of this Lease.
ARTICLE 67 - PARTIAL PAYMENT
----------------------------
If Owner receives from Tenant any payment ("Partial Payment") less
than the sum of the Fixed Rent, Additional Rent and other charges then due
and owing pursuant to the term of this Lease, Owner in its sole discretion
may allocate such Partial Payment in whole or in part to any Fixed annual
Rent, any annual rent and/or any other charges or to any combination
thereof.
ARTICLE 68 - PORTERS WAGE RATE
------------------------------
Intentionally omitted
ARTICLE 69 - ASSIGNMENT
-----------------------
Tenant may sublet all or a portion of the Demised Premises or assign
this lease with Owner's prior written consent which shall not be
unreasonably withheld, provided that:
I
(a) Tenant shall furnish Owner with the name and business address
of the proposed subtenant or assignee, a counterpart of the proposed
subleasing or assignment agreement, and satisfactory information with
respect to the nature and character of the business of the proposed
subtenant or assignee together with current financial information and
references reasonably satisfactory to Owner.
(b) In the reasonable judgment of the Owner the proposed
subtenant or assignee is financially responsible with respect to its
proposed obligations under the proposed agreement and is of a character
engaged in a business which is in keeping with the standards of the
building and the floor or floors in which the Demised Premises are located.
(c) An executed duplicate original in a form satisfactory to
Owner for review by Owner's counsel of such subleasing or assignment
agreement shall be delivered to Owner at least five (5) days prior to the
effective date thereof. In the event of any assignment, Tenant will deliver
to Owner at least five (5) days prior to the effective date thereof an
assumption agreement wherein the assignee agrees to assume all of the
terms, covenants and conditions of this lease to be performed by Tenant
hereunder and which provides that Tenant named herein and such assignee
shall after the effective date of such assignment be jointly and severally
liable for the performance of all of the terms, covenants and conditions of
this lease.
(d) Tenant, at Tenant's expense, shall provide and permit
reasonably appropriate means of ingress to and egress from space sublet by
Tenant.
(e) Except for any subletting or assignment by Tenant to Owner,
each subletting or assignment shall be subject to all the covenants,
agreements, terms, provisions and conditions contained in this lease.
(f) Tenant covenants and agrees that notwithstanding any
subletting or assignment to Owner or to any other subtenant or assignee
and/or acceptance of rent or Additional Rent by Owner from any subtenant or
assignee, Tenant shall and will remain fully liable for the payment of the
annual rent and Additional Rent due and to become due hereunder and for the
performance of all the covenants, agreements, terms, provisions and
conditions contained in this lease on the part of the Tenant to be
performed.
(g) Tenant further agrees that it shall not at any time publicly
advertise at a rental rate less than the Fixed annual Rental plus any
Additional Rent then payable hereunder, for assignment or sublease of all
of the space demised herein, or for sublease of any portion of the space
demised herein, but nothing herein contained shall be deemed to be Owner's
consent to any assignment or subletting.
(h) Notwithstanding anything herein contained to the contrary,
Tenant shall have no right to assign this lease or to sublet the whole of
the Demised Premises prior to or during the first (6) six months following
the commencement date hereof.
(i) Tenant shall have no right to assign this lease or sublet the
whole or any part of the Demised Premises to any party who in dealing with
or has dealt with Owner or Owner's agent with respect to space then still
available for rent in the building within the 12 months immediately
preceding Owner's receipt of Tenant's notice pursuant to item 11 of this
Article.
(j) Such subletting or assignment shall not cause Owner any cost.
(k) Tenant shall have complied and shall comply with each of the
provisions in this Article and Owner shall not have made any election as
provided in item II hereof.
II
If Tenant shall desire to sublet all or a portion of the Demised
Premises or to assign this lease, Tenant shall send to Owner a written
notice by registered mail at least ninety (90) days prior to the date such
assignment or subletting is to commence stating (w) that the intention in
to assign the lease, (x) the portion of the Premises that the Tenant
desires to sublet, and if the portion intended to be sublet shall be less
than the entire Demised Premises and other than an entire floor or multiple
thereof, such notice shall be accompanied by a reasonably accurate floor
plan of the premises to be sublet, (y) the term of such proposed subletting
and (z) the proposed commencement date of such subletting or assignment.
(a) If Tenant desires to sublet all of the Demised Premises or to
assign this lease, then within sixty (60) days after receipt of the
aforesaid notice Owner may notify Tenant that Owner elects (1) to cancel
this lease, in which event such cancellation shall become effective on the
date set forth pursuant to (z) above and this lease shall thereupon
terminate on said date with the same force and effect as if said date were
the expiration date of this lease: or (2) to require Tenant to assign this
lease to Owner effective from the date not forth pursuant to (z) above. In
either event Tenant shall be obligated to surrender possession of the
Demised Premises in the same condition as Tenant is obliged to surrender
possession at the end of the term as provided in this lease. Such
assignment to Owner shall provide that the parties to such assignment
expressly negate any intention that any estate created under such
assignment be merged with any other estate held by either of said parties.
(b) If Tenant desires to sublet less than all of the Demised Premises
then within sixty (60) days after receipt of the aforesaid notice, Owner
may notify Tenant that Owner elects to require Tenant to sublease to Owner
as subtenant of Tenant, the portion of the Demised Premises that Tenant had
specified in its notice to Owner, for the term, and from the commencement
date specified in said notice. The annual rent and Additional Rent, which
Owner shall pay to Tenant shall be a pro rata apportionment of the annual
and Additional Rent payable hereunder and it is hereby expressly agreed
that such sublease to Owner shall be upon all the covenants, agreements,
terms, provisions and conditions contained in this lease except for such
thereof which are inapplicable and such sublease shall give Owner the
unqualified and unrestricted right without Tenant's permission to assign
such sublease or any interest therein and/or to sublet the space covered by
such sublease or any part or parts of such space and to make or cause to
have made or permit to be made any and all changes, alterations,
decorations, additions, and improvements in the space covered by such
sublease, and that such may be removed, in whole or part, at Owner's
option, prior to or upon the expiration or other termination of such
sublease provided that any damages or injury caused by such removal shall
be repaired. Such sublease to Owner shall also provide that the parties to
such sublease expressly negate any intention that any estate created under
such sublease be merged with any other estate hold by either of said
parties.
(c) Tenant covenants and agrees that any such assignment or subletting
to Owner or further assignment or subletting by Owner or Owner's assignee
or subleases may be for any purpose or purposes that Owner, in Owner's
uncontrolled discretion, shall deem suitable or appropriate.
(d) If Owner, should fail to exercise any of the elections granted to
it pursuant to the provisions of sub-paragraphs "a" or "b" of Item II of
this Article and if Tenant should sublet all or a portion of the Demised
Premises for a rental in excess of the sum of annual rental stipulated
herein and Additional Rent arising hereunder, then Tenant shall pay to
Owner as Additional Rent 50% of such excess amount. In computing such
excess amount appropriate pro-rata adjustments shall be made with respect
to a subletting of less than all of the Demised Premises.
(e) Tenant hereby waives any claim against Owner for money damages
which it may have based upon any assertion that Owner has unreasonably
withheld or unreasonably delayed any consent to an assignment or a
subletting pursuant to this Article. Tenant agrees that its sole remedy
shall be an action or proceeding to enforce such provision or for specific
performance.
(f) Assignment and subletting shall for purposes of this Article 69
include any sale, exchange or disposition of any portion of seller's
shares, partnership or ownership interests or any change of ownership of
Tenant, if Tenant is not an individual.
(g) If this Lease is assigned, sublet or if the demised premises or
any part thereof be underlet or occupied by any party other than Tenant
without Owner's written permission, Owner may, in addition to any other
remedy provided to Owner under this Lease or by law, after default by
Tenant, collect rent from the assignee, subleases, undertenant or occupant,
and apply the net amount collected to the rent herein reserved. No
assignment, subletting, underletting, occupancy or collection shall be
deemed a waiver of the provisions hereof, the acceptance of the assignee,
subleases, undertenant or occupant as Tenant, or a release of Tenant from
the further performance by or enforcement upon Tenant of covenants herein
contained and shall not prevent the Owner from commencing an action or
proceeding to terminate the prime Tenant's Lease and evict the prime Tenant
for the subject premise. Such a termination and eviction action or
proceeding shall be based upon the illegal assignment, subletting or
occupancy by someone other than the Tenant. The acceptance of rent or other
payments to Owner from the assignee, subleases, undertenant or occupant
shall not in any way be construed to relieve Tenant from obtaining the
expressed written consent of Owner for such assignment, sublet or
underletting and shall in no way be construed an acceptance and/or
acknowledgement of such action or person nor shall it confer any rights
upon such person.
III
If this lease is assigned and Owner consents to such assignment,
Tenant covenants and agrees that the term, covenants and conditions of this
lease may be changed, altered or modified in any manner whatsoever by Owner
and the assignee without prior written consent of Tenant, that no such
change, alteration or modification shall release Tenant from the
performance by it of any of the terms, covenant and conditions on its part
to be performed under this lease. Any such change, alteration or
modification which would have the effect of increasing or enlarging
Tenant's obligations or liabilities under this lease shall not, to the
extent only such increase or enlargement, be binding upon Tenant.
ARTICLE 70 - INTERCOM
---------------------
During this lease Tenant shall pay as Additional Rent the sum of $10.00 per
month for maintenance of the exterior buzzer intercom system. If the system
remains out of order for an unreasonable period of time, Tenant shall not
be responsible for intercom charges during such time.
ARTICLE 71 - ESTATE TAX ESCALATION
----------------------------------
71.1 As used herein:
71.1.1 The term "Escalation Year" shall mean each calendar year
which shall include any part of the term.
71.1.2 The term "Taxes" shall mean all real estate taxes,
assessments (special or otherwise), sewer rents, rates and charges, county
taxes or any other governmental charge of a similar or dissimilar nature,
whether general, special, ordinary or extraordinary, foreseen or
unforeseen, which may be levied, assessed or imposed upon or with respect
to all or any part of the land ("Land") upon which the Building is
constructed or the Building by the City or County of New York or any other
taxing authority. If by law any assessment may be divided and paid in
annual installments, then, for the purposes of this Article (a) such
assessment shall be deemed to have been so divided upon application made
thirty (30) days after the date of entry, whether before or after the date
hereof, (b) such assessment shall be deemed payable in the maximum number
of annual installments permitted by law, and (c) there shall be deemed
included in Taxes for each Escalation Year the annual installment of such
assessment becoming payable during such Escalation Year, together with
interest payable during such Escalation Year on such annual installment and
on all installments thereafter becoming due as provided by law, all as if
such assessment had been so divided. If at any time during the Term the
methods of taxation prevailing on the date hereof shall be altered so that
in lieu of or as an addition to or as a substitute for the whole of any
part of the Taxes now levied, assessed or imposed (a) a tax, assessment,
levy, imposition or charge based on the rents received therefrom whether or
not wholly or partially as a capital levy or otherwise, or (b) a tax,
assessment, levy, imposition or charges measured by or based in whole or in
part upon all or any part of the Land or the Building and imposed on Owner,
or (c) a license fee measured by the rent payable by Tenant to Owner, or
(d) any other tax, levy, imposition, charge or license fee however
described or imposed, then all such taxes, assessments, levies,
impositions, charges or license fees or the part thereof so measured or
based, shall be deemed to be Taxes.
71.1.3 The term "Owner's Basic Tax Liability" shall mean the
Taxes attributable to the Land and the Building for Calendar Year 1997, and
"Owner's Base Year" shall mean the Calendar Year 1997.
71.1.4 The term "Tenant's Proportionate Share" shall mean five
point eight (5.8%) percent.
71.2 If Taxes payable in any Escalation Year falling wholly or
partially within the Term shall be in an amount constituting an increase
above Owner's Basic Tax Liability, Tenant shall pay as Additional Rent for
such Escalation Year a sum equal to the Tenant's Proportionate Share of the
amount by which Taxes for such Escalation Year exceed Owner's Basic Tax
Liability. Tenant shall, if Owner so elects, pay his proportionate share of
taxes in advance as Additional Rent.
71.3 If by any reason of any law, statute, regulation or agreement
with a taxing or other governmental authority (including, without
limitation, a so-called "J-51 Program") any part of the Taxes shall be
reduced, i.e., suspended or abated, then there shall be subtracted from
Taxes for purposes of determining the Additional Rent payable hereunder, an
amount equal to the decrease in such taxes due to such suspension or
abatement.
71.4 If, as a result of any application or proceeding brought by or on
behalf of Owner for reduction in the assessed valuation of the Real
Property affecting any Escalation Year commencing after Owner's Base Year,
there shall be a decrease in Taxes for any such Escalation Year with
respect to which Owner shall have previously rendered an Owner's statement,
the Owner's Statement next following such decrease shall include an
adjustment for such Escalation Year reflecting such decrease in Taxes less
all costs and expenses, including, without limitation, any attorneys' fees
incurred by Owner in connection with such application or proceeding with
respect to any Escalation Year occurring after Owner's Base Year.
ARTICLE 72 - MISCELLANEOUS
--------------------------
This Lease embodies the entire agreement between Owner and Tenant. Any
change, addition, waiver, release or discharge of this Lease shall be
ineffective unless signed by the party against whom such change, addition,
waiver, release or discharge is sought to be enforced. Each right, power
and remedy of Owner provided for in this Lease or now or hereafter existing
at law, in equity, by statute or otherwise shall be cumulative and
concurrent and shall be in addition to every other right, power or remedy
provided for herein or now or hereafter existing at law, in equity, by
statute or otherwise, and the exercise or beginning of the exercise by
Owner of any one or more of such rights, powers or remedies shall not
preclude the simultaneous or later exercise by Owner of any or all such
other rights, power or remedies.
73. Tenant shall be allowed (4) four listings in each of the building
standard directories, for which it agrees to reimburse the Owner. Tenant
agrees that no signage shall be affixed directly to the entrance door
leading to the Demised Premises.
74. If electric current being supplied to Tenant is by the public
utility corporation serving the part of the city where the building is
located, Tenant agrees to purchase same from such public utility
corporation. If electric current be supplied by Owner, Tenant covenants and
agrees to purchase the same from Owner or Owner's designated agent at
charges, terms and rates set, from time to time, during the term of this
lease by Owner but not more than those specified in the service
classification in effect on January 1, 1970 pursuant to which Owner then
purchased electric current from the public utility corporation serving the
part of the city where the building is located. Said charges may be revised
by Owner in order to maintain the return to Owner produced under the
foregoing in the event that the Public Service commission approves changes
in service classifications, terms, rates or charges for such public utility
during the term hereof. 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. Bills
therefore shall be rendered at such times as Owner may elect. In the event
that such bills are not paid within five (5) days after the same are
rendered, Owner may, without further notice, discontinue the service of
electric current to demised premises without releasing Tenant from any
liability under this lease and without Owner or Owner's agent incurring any
liability for any damage or loss sustained by Tenant by such discontinuance
of service. At the option of Owner, Tenant also agrees to purchase from
Owner or its agent all lamps or bulbs used in the demised premises and to
pay the cost of installation thereof. Owner shall not in any other wise be
liable or responsible to Tenant for any loss or damage or expense which
Tenant may sustain or incur if either the quantity or character of electric
services is changed or is no longer available or suitable for Tenant's
requirements. Any riser or risers to Supply Tenant's electrical
requirements, upon written request of Tenant, will be installed by Owner,
at the sole cost and expense of Tenant, if in Owner's sole judgment the
same are necessary and will not cause 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, repair or
expense or interfere with or disturb other tenants or occupants. In
addition to the installation of such riser or risers Owner will also, at
the sole cost and expense of Tenant, install all other equipment proper and
necessary in connection therewith subject to the aforesaid terms and
conditions. Tenant covenants and agrees that at all times its use of
electric current shall never exceed the capacity of existing feeders to the
building or the risers or wiring installations. It is further covenanted
and agreed by Tenant that all the aforesaid costs and expenses shall be
paid by Tenant to Owner within five (5) days after rendition of any xxxx or
statement to Tenant therefore. Owner may discontinue any of the aforesaid
services upon thirty (30) days notice to Tenant without being liable to
Tenant therefore or without in any way affecting this lease or the
liability of Tenant hereunder or causing a diminution of rent and the same
shall not be deemed to be a lessening or diminution of services within the
meaning of any law, rule or regulation now or hereafter enacted,
promulgated or issued. In the event Owner gives such notice of
discontinuance, Owner shall permit Tenant to receive such service direct
from said public utility corporation, in which event, the Tenant will, at
its own cost and expense, furnish and install all risers, service wiring,
and switches that may be necessary for such installation and required by
the public utility company, and will, at its own cost and expense, maintain
and keep in good repair all such risers, wiring and switches. Tenant shall
make no alterations or additions to the electric equipment and/or
appliances without the prior written consent of Owner in each instance.
Rigid conduit only will be allowed. If any tax is imposed upon Owner's
receipts from the sale or resale of electric energy 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 Owner. Any sums due and payable to Owner under this Article shall
be collectible as Additional Rent.
75. Intentionally Deleted.
76. Owner's Work within the Demised Premises shall consist of the
following:
a. Landlord shall deliver Premises in broom-clean condition,
"AS IS", with windows in reasonably operable condition.
77. Upon completion of Tenant construction to alter or improve
interior of Demised Premises, Tenant shall submit copies of bills and
canceled checks paid for such work, which shall not include furnishings, to
Landlord. Upon Landlord's verification of the validity of work completed
and bills and canceled checks submitted, Landlord will reimburse Tenant for
the cost of such work up to a maximum of $29,000.00.
78. Tenant shall have the first right to lease, from and after such
dates on which Tenant, from time to time, gives Landlord notice that it
wishes to lease additional space pursuant to this first right to lease any
unencumbered space which may become available on the 3rd or 5th floors, if
not designated by Landlord for residential use. Landlord shall not be
obligated to notify Tenant of such designation when it occurs. Tenant must
exercise this right within twenty days of giving notice.
79. Landlord represents that Tenant shall have access to the Building
24 hours a day, 7 days a week.
LEASE MODIFICATION AND EXPANSION AGREEMENT
This Agreement is dated as of October 1, 1997 between FIFTH AVENUE
WEST ASSOCIATES, L.P., having an office at 00 Xxxx 00xx Xxxxxx, Xxxxx #000,
Xxx Xxxx, Xxx Xxxx 00000 ("Owner") and WEBGENESIS, INC., a corporation
having an address at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Tenant").
Recitals
--------
A. Owner is the current owner of the premises having an address at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Building") .
B. Tenant occupies Suite #400 of the Building pursuant to a Lease
dated January 14, 1997 between FIFTH AVENUE WEST ASSOCIATES, L.P., as
Owner, and WEBGENESIS, INC., as Tenant.
C. The Lease for Suite #400 provides that it shall terminate on
January 31st, 2002 unless otherwise renewed or extended.
D. Upon payment of Ten ($10.00) Dollars by Tenant to Owner, the
receipt and sufficiency of which is acknowledged, Owner and Tenant agree
that:
1. The Lease shall be amended to provide that, as of December 1,
1997, Suite #602 shall be added to the Demised Premises, so that the first
page of the Lease shall read "Owner hereby leases to Tenant and Tenant
hereby hires from Owner, Xxxxx #000 xxx Xxxxx #000."
2. The terms of the Lease Modification and Expansion Agreement
for Suite #602 shall expire on November 30, 1999 unless sooner terminated
pursuant to the provisions of the Lease.
3. Article 41 ("Fixed Rent and Additional Rent") shall be amended
so that during the Modification and Expansion Period from December 1, 1997
to November 30, 1999, Tenant's annual Fixed Rent shall be increased by
$44,800.00, representing charges applicable for Suite #602. All rent shall
be paid on the first day of each month in advance in equal monthly
installments.
4. Article 29 ("Water Charges") and Art1cle 30 ("Sprinklers")
shall be amended so that during the Modification and Expansion Period,
Tenant's monthly charges shall be increased by $30.00 each, representing
the charges applicable for Suite #602.
5. Article 32 ("Security") shall be amended so that Tenant's
security deposit for suites #400 and #602 shall at all times be equal to
two months Fixed and Additional Rent.
6. Article 50 ("Legal Requirements") shall be amended so that
during the Modification and Expansion Period, Tenant's charges shall be
increased by five point eight percent (5.8%), representing the share
applicable to Suite #602.
7. Article 70 ("Intercom") shall be amended so that during the
Modification and Expansion period, Tenant's monthly charge shall be
increased by $10.00, representing the charge applicable to Suite #602.
8. Article 71 ("Real Estate Tax Escalation") shall be amended for
the Modification and Expansion Period so that "Tenant's Proportionate
Share" shall be increased by five point eight percent (5.8%), representing
the share applicable to Suite #602.
9. Owner shall deliver Suite #602 to Tenant in broom-clean
condition.
10. Except as modified by this Agreement, all other provisions of
the Lease shall continue as stated in the Lease for the Modification and
Expansion Period.
11. Except as modified by this Agreement, Tenant shall be
required to pay all Additional Rent as stated in the Lease during the
Modification and Expansion Period.
12. Execution of this Agreement by the Owner shall not constitute
a waiver of or consent to any default, breach or condition that might ripen
into a default or breach and Owner preserves any right or remedy it may
have against Tenant with respect thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first day first written above.
/s/ /s/
--------------------------------- ----------------------------
FIFTH AVENUE WEST ASSOCIATES, L.P. WEBGENESIS, INC.
BY XXXXXX XXXXXX, GENERAL PARTNER BY: (PLEASE PRINT)
TITLE: [illegible]
NAME: [illegible]
COMMERCIAL USE ONLY - NO LIVING ALLOWED
---------------------------------------
