Exhibit 10.1
AGREEMENT OF LEASE (hereinafter referred to as "Lease" or
"lease"), made as of this 23rd day of July, 1998 between 130 XXXXXXX LLC, having
an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, party of the first
part (hereinafter referred to as "Landlord" or "Owner"), and WALL STREET
STRATEGIES, INC., a Delaware corporation, having an address at 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, party of the second part (hereinafter referred to as
"Tenant").
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby
hires from Landlord that portion of the 4th floor substantially as shown shaded
on the floor plan annexed hereto as Exhibit A (hereinafter called "premises,"
"demised premises" or "premises"), in the building known as 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx (hereinafter called "building" or "Building"), for the term
(hereinafter called "term" or "Term") to commence on the later of August 1, 1998
or the Substantial Completion Date (as defined hereinafter) (hereinafter called
the "Commencement Date"), and to the end on the last day of the month in which
the fifth (5th) year anniversary of the Commencement Date shall occur
(hereinafter called the "Expiration Date"), or until such term shall sooner
cease and expire as hereinafter provided, both dates inclusive, at an annual
rental as more particularly set forth in Article 37 hereof (hereinafter called
"rent" or "Fixed Rent"), together with all other sums of money as shall become
due and payable by Tenant under this lease (hereinafter called "additional rent"
or "Additional Rent" and together with Fixed Rent, "rent" or "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 Landlord or such other place as Landlord may
designate, without any set off or deduction whatsoever, except that Tenant shall
pay the first monthly installments(s) on the execution hereof (unless this lease
be a renewal).
In the event that, at the commencement of the term of this lease, or thereafter,
Tenant shall be in default in the payment of rent to Landlord pursuant to the
terms of another lease with Landlord or with Landlord's predecessor in interest,
Landlord may at Landlord's option and without notice to Tenant add the amount of
such arrearages to any monthly installment of rent payable hereunder and the
same shall be payable to Landlord as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent: 1. Tenant shall pay the rent as above and as
hereinafter provided.
Occupancy: *2. Tenant shall use and occupy the demised
premises as executive, general and
administrative offices and for no other purpose.
*and to such other requirements as Owner may reasonably
impose, including without limitation, that all alterations by Tenant shall be
performed by Owner's designated contractors.
Tenant Alterations:
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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, X Tenant, at Tenant's expense, may make alterations, installations,
additions or improvements which are non-structural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises by using contractors or mechanics first approved in each
instance by Owner. Tenant shall, before making any alterations, additions,
installations or improvements, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to Owner and Tenant
agrees to carry and will cause Tenant's contractors and sub-contractors to carry
such xxxxxxx'x compensation, general liability, personal and property damage
insurance as 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 Tenants' expense, by payment of filing the bond
required by law. 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 as 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
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 to 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 may be removed from the premises by Owner, at Tenant's
expense.
Maintenance and Repairs:
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4. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant, Tenant's subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor, service
or equipment done for or supplied to Tenant or any subtenant or arising out of
the installation, use or operation of the property or equipment done for or
supplied to Tenant or any subtenant or arising out of the installation, use or
operation of the property or equipment of Tenant or any subtenant. Tenant shall
also repair all damage to the building and the demised premises cause by the
moving of Tenant's fixtures, furniture and equipment. Tenant shall promptly
make, at Tenant's expense, all repairs in and to the demised premises for which
Tenant is responsible, using only the contractor for the trade or trades in
question, selected from a list of at least two contractors per trade submitted
by Owner. Any other repairs in or to the building or the facilities and systems
thereof for which Tenant is responsible shall be performed by Owner at the
Tenant's expense. Owner
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shall maintain in good working order and repair the exterior and the structural
portions of the building, including the structural portions of its demised
premises, and the public portions of the building interior and the building
plumbing, electrical, heating and ventilating systems (to the extent such
systems presently exist) serving the demised premises. Tenant agrees to give
prompt notice of any defective condition in the premises for which Owner may be
responsible hereunder. 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 others making 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. It is specifically agreed that Tenant shall not be entitled to any
setoff or reduction of rent by reason of any failure of Owner to comply with the
covenants of this or any other article of this Lease. Tenant agrees that
Tenant's sole remedy at law in such instance will be by way of an action for
damages for breach of contract. The provisions of this Article 4 shall not
apply in the case of fire or other casualty which are dealt with in Article 9
hereof.
Window Cleaning:
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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 Labor Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting
jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
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6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law and all orders,
rules and regulations of the New York Board of Fire Underwriters, 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, (inducing Tenant's
permitted use) or, with respect to the building if arising out of Tenant's use
or manner of use of the premises or the building (including the use permitted
under the lease). Nothing herein shall 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 may, after
securing Owner to Owner's satisfaction against all damages, interest, penalties
and expenses, including, but not limited to, reasonable attorney's fees, by cash
deposit or by surety bond in an amount and in a company satisfactory to Owner,
contest and appeal any such laws, ordinances, orders, rules, regulations or
requirements provided same is done with all reasonable promptness and provided
such appeal shall not subject Owner to prosecution for a criminal offense or
constitute a default under any lease or mortgage under which Owner may be
obligated, or cause the demised premises or any part thereof to be condemned or
vacated. Tenant shall not do or permit any act or thing to be done in or to the
demised premises with 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 with
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respect to the demised premises or the building of which the demised premises
form a part, or which shall or might subject Owner to any liability to
responsibility to any person or for property damage. 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
or other authority having jurisdiction, and then only in such manner and such
quantity so as not to increase the rate for fire insurance applicable 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 Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this article and if by reason
of such failure the fire insurance rate shall, at the beginning 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" of rate for the building or demised
premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to said premises shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance 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 judgment, to
absorb and prevent vibration, noise and annoyance.
Subordination:
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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, consolidation, replacements and extensions of any such underlying
leases and mortgages. This clause shall be self-operative and no further
instrument of subordination shall be required by any ground or underlying lessor
or by any mortgagee, affecting any lease or the real property of which the
demised premises are a part. In confirmation of such subordination, Tenant shall
from time to time execute promptly any certificate that Owner may request.
Property Loss, Damage, Reimbursement Indemnity:
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8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, nor for loss of or damage
to any property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence of Owner, its agents, servants or employees. Owner
or its agents will not be liable for any such damage caused by other tenants or
persons in, upon or about said building or caused by operations in construction
of any private, public or quasi public work. If at any time any windows of the
demised premises are temporarily closed, darkened or bricked up (or permanently
closed, darkened or bricked up, if required by law) for any reason whatsoever
including, but not limited to Owner's own acts, Owner shall not be liable for
any damage Tenant may sustain thereby and
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Tenant shall not be entitled to any compensation therefor nor abatement or
diminution of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall 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 attorneys fees, paid, suffered or incurred as a result of
any breach by Tenant, Tenant's agents, contractors, employees, invitees or
licensees, Tenant's liability under this lease extends to the acts and omissions
of any covenant or condition of this lease, or the carelessness, negligence or
improper conduct of the Tenant, Tenant's agents, contractors, employees,
invitees or licensees. Tenant's liability under this lease extends to the acts
or 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 and Other Casualty:
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9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to 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 and other items of additional 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 and other items of additional rent as
hereinafter expressly provided 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 (or sooner reoccupied in part by Tenant
then rent shall be apportioned as proved in subsection (b) above), 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 rebuilt 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, or 30 days after adjustment of
the insurance claim for such fire or casualty, or 30 days after adjustment of
the insurance claim for such fire or casualty, whichever is sooner, specifying a
date for the expiration of the lease, which date shall not be more than 60 days
after the giving of such notice, and upon the date specified in such notice the
term of this lease shall expire as fully and completely as if such date were the
date set forth above for the termination of this lease and Tenant shall
forthwith quit, surrender and vacate the premises without prejudice however, to
Landlord's rights and remedies against Tenant under the lease provisions in
effect prior to such termination, and any rent owing shall be paid up to such
date and any payment of rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant. Unless Owner shall serve a
termination notice as provided for herein, Owner shall make the repairs and
restorations under the conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond 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
moveable 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 or such earlier date on which such
repairs would have been completed but for delays caused by Tenant, including
delays in
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submitting plans, (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, including Owner's obligation to restore under
subparagraph (b) above, 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 with respect to
subparagraphs (b), (d), and (e) above, against the other or any one claiming
through or under each of them by way of subrogation or otherwise. The release
and waiver herein referred to shall be deemed to include any loss or damage to
the demised premises and/or to any personal property, equipment, trade fixtures,
goods and merchandise located therein. 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 Domain:
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10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease and assigns to Owner, Tenant's entire
interest in any such award. Tenant shall have the right to make an independent
claim to the condemning authority of the value to Tenant's moving expenses and
personal property, trade fixtures and equipment, provided Tenant is entitled
pursuant to the terms of the lease to remove such property, trade fixture and
equipment at the end of the term and provided further such claim does not reduce
Owner's award.
Assignment, Mortgage, Etc.:
-------------------------
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representative, successor 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 or the majority partnership interest of a
partnership 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
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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 Current:
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12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric currents shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation and Tenant
may not use any electrical equipment which, in 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 Premises:
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13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and at other reasonable
times, to examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to the demised
premises or to any other portion of the building of which Owner may elect to
perform. 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 they are concealed within the walls, floor, or ceiling. 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 and
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. If Tenant is not present to open and permit an entry into the demised
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.
Vault, Vault Space, Area:
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14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any
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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 deemed constructive or actual eviction.
Any tax, fee or charge of municipal authorities for such vault or area shall be
paid by Tenant.
Occupancy:
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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.
Bankruptcy:
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16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by the 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 possession of the
premises demised but shall forthwith quit and surrender 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 situated 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 rent 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 premised 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 re-letting
shall be deemed to be the fair and reasonable rental value for the
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part or the whole of the premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of the 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 rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the amount
of the difference referred to above.
Default:
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17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
including the covenants for the payment of rent or additional rent; or if the
demised premises become vacant or deserted; 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 this
lease be rejected under Section 235 of Title 11 of the U.S. Code (bankruptcy
code); or if Tenant shall fail to move into or take possession of the premises
within thirty (30) days after the commencement of the term of this lease, then,
in any one or more of such events, upon Owner serving a written fifteen (15)
days notice upon Tenant specifying the nature of said default and upon the
expiration of said fifteen (15) 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
fifteen (15) day period, and if Tenant shall not have diligently commenced
curing such default within such fifteen (15) 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 five (5) days' notice of
cancellation of this lease upon Tenant, and upon the expiration of said five (5)
days of this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof
and Tenant shall ten 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 term 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 and remove their effects and hold the premises as
if this lease had not been made, and Tenant herein waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the date fixed as the commencement
of any renewal or extension of this lease. Owner may cancel and terminate such
renewal or extension agreement by written notice.
Remedies of Owner and Waiver of Redemption:
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18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent shall become due thereupon and be
paid up to the time of
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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, and/or (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 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 reasonable attorneys' fees, brokerage, advertising and for keeping the
demised premises in good order or for preparing the same for re-letting. Any
such liquidated damages shall be paid in monthly installments by Tenant on the
rent day specified in this lease and any suit brought to collect the amount of
the deficiency for any month shall not prejudice in any way the rights of 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, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to 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 in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
10
Fees and Expenses:
-----------------
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, after notice if
required and upon expiration of any applicable grace period if any, (except in
an emergency), 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 reasonable attorneys' fees, in instituting,
prosecuting or defending any action or proceeding, and prevails in any such
action or proceeding then Tenant will reimburse Owner for such sums so paid or
obligations 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 ten (10) 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.
Buildings, Alterations and Managements:
--------------------------------------
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
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 Tenants 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
such 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 by Owner:
---------------------------
21. Neither Owner nor Owner's agents have made any representation or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the premises except as herein
expressly set forth and no rights, easements or licenses are acquired by Tenant
by implication or otherwise except as expressly set forth in the provisions of
this lease. Tenant has inspected the building and the demised premises and is
thoroughly acquainted with their condition and agrees to take the same "as is"
and acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract, which alone
11
fully and completely expresses the agreement between Owner and Tenant and any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in part, unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
End of term:
-----------
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, boom clean, in good
order and condition, ordinary war and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of this lease. If the last day of
the term of this Lease or any renewal thereof, falls on Sunday, this lease shall
expire at noon on the preceding Saturday unless it be a legal holiday in which
case it shall expire at noon on the preceding business day.
Quiet Enjoyment:
---------------
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to Article 31
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
--------------------------
24. If Owner is unable to give possession of the demised premises on the date of
the commencement 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 been procured 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 wise to extend
the term 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
construction) until after Owner shall have given Tenant written notice that the
Owner is able to deliver possession in condition required by this lease. 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 possession and/or occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease except the obligation
to pay the fixed annual rent set forth in the preamble to this lease.
12
The provisions of this article are intended to continue "an express provision to
the contrary" within the meaning of Section 223 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 of 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
and/or additional 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. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall be
valid unless in writing signed by 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 Trial by Jury.
-----------------------
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
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 proceeding or action for possession
including a summary proceeding for possession of the premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding including a counterclaim under Article 4 except for statutory
mandatory counterclaims.
Inability to Perform:
--------------------
27. This lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly
13
or impliedly 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, fixtures, or other materials if Owner is
prevented or delayed from so doing by reason of strike or labor troubles or any
cause whatsoever including, but not limited to, government preemption or
restrictions or by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the conditions
which have been or are affected either directly or indirectly, by war or other
emergency.
Bills and Notices:
-----------------
28. Except as otherwise in this lease provided, a xxxx, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail addressed to Tenant at the
building of which the demised premises form a part or at the last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such xxxx or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to 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.
Services Provided by Owners:
---------------------------
29. As long as Tenant is not in default under any of the covenants of this lease
beyond the applicable grace period provided in this lease for the curing of such
defaults. Owner shall provide: (a) necessary elevator facilities on business
days from 8 a.m. to 6 p.m. and have one elevator subject to call at all other
times: (b) heat to the demised premises when and as required by law, on business
days from 8 a.m. to 6 p.m.: (c) water for ordinary lavatory purposes, but if
Tenant uses or consumes water for any other purposes or in unusual quantities
(of which fact Owner shall be the sole judge), Owner may install a water meter
at Tenant's expense which Tenant shall thereafter maintain at Tenant's expense
in good working order and repair to register such water consumption and Tenant
shall pay for water consumed as shown on said meter as additional rent as and
when bills are rendered; (d) cleaning service for the demised premises
substantially in accordance with the standards attached hereto as Exhibit B on
business days at Owner's expense provided that the same are kept in order by
Tenant. If, however, said premises are to be kept clean by Tenant, it shall be
done at Tenant's sole expense, in a manner reasonably satisfactory to Owner and
no one other than persons approved by Owner shall be permitted to enter said
premises or the building of which they are a part for such purpose. Tenant shall
pay Owner the cost of removal of any of Tenant's refuse and rubbish from the
building; (e) if the demised premises are serviced by Owner's air
conditioning/cooling and ventilating system, air conditioning/cooling will be
furnished to tenant from May 15th through September 30th on business days
(Mondays through Fridays, holidays
14
excepted) from 8:00 a.m. to 6:00 p.m., and ventilation will be furnished on
business days during the aforesaid hours except when air conditioning/cooling is
being furnished as aforesaid. It Tenant required air conditioning/cooling or
ventilation for more extended hours on Saturdays, Sundays or on holidays, as
defined under Owner's contract with Operating Engineers Local 94-94A, Owner will
furnish the same at Tenant's expense. RIDER to be added in respect to rates and
conditions for such additional service: (f) Owner reserves the right to stop
services of the heating, elevators, plumbing, air-conditioning, electric, power
systems or cleaning or other services, if any, when necessary by reason of
accident or for repairs, alterations, replacements or improvements necessary or
desirable in the judgment of Owner for as long as may be reasonably required by
reason thereof. If the building of which the demised premises are a part
supplies manually operated elevator service, Owner at any time may substitute
automatic control elevator service and proceed diligently with alterations
necessary therefor without in any wise affecting this lease or the obligation of
Tenant hereunder.
Captions:
--------
30. 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 provisions thereof.
Definitions.
-----------
31. The term "office", or "offices", wherever used in this lease, shall not be
construed to mean premises used as a store or stores, for the sale or display,
at any time, of goods, wares or merchandise, of any kind, or as a restaurant,
shop, booth, bootblack or other stand, xxxxxx shop, or for other similar
purposes or for manufacturing. The term "Owner" means a landlord or lessor, and
as used in this lease means only the owner, or the mortgagee in possession, for
the time being of the land and building (or the owner of a lease of the building
or of the land and building) of which the demised premises form a part, so that
in the event of any sale or sales of said land and building or of said lease, or
in the event of a lease of said building, or of the land and building, the said
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 an 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
"business days" as used in this lease shall exclude Saturdays, Sundays and all
days as 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. Wherever it is expressly provided in this lease that consent
shall not be unreasonably withheld, such consent shall not be unreasonably
delayed.
15
Adjacent Excavation-Shorting:
----------------------------
32. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of rent.
Rules and Regulations:
---------------------
33. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply strictly with, the Rules and Regulations
and such other and further reasonable Rules and Regulations as 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 to the
New York office of the American Arbitration Association, whose determination
shall be final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rule or Regulation upon Tenant's part shall be
deemed waived unless the same shall be asserted by service of a notice, in
writing upon Owner within fifteen (15) days after the giving of notice thereof.
Nothing in this lease shall be construed to impose upon Owner any duty or
obligation to enforce the Rules and Regulations or terms, covenants of
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.
Security:
--------
34. Tenant has deposited with Owner the sum of $24,883.00 as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, 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
16
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.
Estoppel Certificate.
--------------------
35. Tenant, at any time, and from time to time, 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 an 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.
Successors and Assigns:
----------------------
36. The covenants, conditions and agreements 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. Tenant shall look only to Owner's estate
and interest in the land and building, for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
See Riders attached hereto and made an integral part hereof
17
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
130 XXXXXXX LLC
Witness for Owner: /s/ Xxxxxx Xxxxxx
---------------------------
___________________________ By: Xxxxxx Xxxxxx, Member
WALL STREET STRATEGIES, INC.,
Witness for Tenant:
/s/ Xxxxxxx Xxxxx
----------------------------
___________________________ By: Name:
Title: ____________________________
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 33.
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
sweeping, 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 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
18
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 building by
reason of noise, odors, and/or vibrations, or interfere in any way with other
Tenants or those having business therein, nor shall any bicycles, vehicles,
animals, fish or birds be kept in or about the building. Smoking or carrying
lighted cigars or cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No sign, advertisements, notice or other lettering shall be exhibited,
inscribed, painted 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 premise 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 wired 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 in 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 or which these Rules and Regulations are a part.
19
9. 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 all persons who do not
present a pass to the building signed by Owner. Owner will furnish passes to
persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such person. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
11. Owner shall have the right to prohibit any advertising by an Tenant which in
Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for offices, 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, explosive, or hazardous fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
13. If the building contains central air conditioning and ventilation, Tenant
agrees to keep all windows closed at all times and to abide by all rules and
regulations issued by Owner with respect to such services. If Tenant requires
air conditioning or ventilation after the usual hours, Tenant shall give notice
in writing to the building superintendent prior to 3:00 p.m. in the case of
services required on week day, and prior to 3:00 p.m on the day prior in case of
after hours service required on weekends or on holidays. Tenant shall cooperate
with Owner in obtaining maximum effectiveness of the cooling system by lowering
and closing venetian blinds and/or drapes and curtains when the sun's rays fall
directly on the windows of the demised premises.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours as Owner may designate.
15. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and agrees, at
its sole cost and expense, to comply with all present and future laws, orders,
and regulations of all state, federal municipal, and local governments,
departments, commissions and boards regarding the collection, sorting,
separation and recycling of waste products, garbage, refuse and trash. Tenant
shall sort and separate such waste products, garbage, refuse and trash into such
categories as provided by law. Each separately sorted category of waste
products, garbage, refuse and trash shall be placed in separate receptacles
reasonably approved by Owner. Such separate receptacles may, at Owner's option,
be removed from the demised premises in accordance with a collection schedule
prescribed by law. Tenant shall remove, or cause to be removed by a contractor
acceptable to Owner, at Owner's sole discretion, such items as Owner may
expressly designate. (2) Owner's Rights in Event of Noncompliance. Owner has the
option to refuse to collect or
20
accept from Tenant waste products, garbage, refuse or trash (a) that is not
separated and sorted as required by law or (b) which consists of such items as
Owner may expressly designate for Tenant's removal, and to require Tenant to
arrange for such collection at Tenant's sole cost and expense, utilizing a
contractor satisfactory to Owner. Tenant shall pay all costs, expenses, fines,
penalties, or damages that may be imposed on Owner or Tenant by reason of
Tenant's failure to comply with the provisions of this Building Rule 15, and, at
Tenant's sole cost and expense, shall indemnity, defend and hold Owner harmless
(including reasonable legal fees and expenses) from and against any actions,
claims and suits arising from such noncompliance, utilizing counsel reasonably
satisfactory to Owner.
21
ESCALATION RIDER ANNEXED TO
AGREEMENT OF LEASE BETWEEN
130 XXXXXXX LLC,
AS LANDLORD, AND
WALL STREET STRATEGIES., AS TENANT
ESCALATION:
A. As used herein:
(a) The term "Taxes" shall mean (a) all real estate taxes,
assessments (special or otherwise), sewer rents, vault taxes or
charges, rates and charges, or any other governmental charge of a
similar or dissimilar nature, whether general, special, ordinary
or extraordinary, which may be levied or assessed on or with
respect to al or any part of the Building or the parcel of land
on which the Building is located (hereinafter called "Real
Property") by the City or County of New York or any other taxing
authority and (b) any expenses, including attorneys' fees and
disbursements, incurred by Landlord in contesting any of the
foregoing or the assessed valuation of al or any part of the Real
Property. If, however, by law, any assessment may be divided and
paid in annual installments, then, for the purposes of this
Rider, (a) such assessment shall be deemed to have been so
divided into the maximum number of annual installments permitted
by law, and (b) there shall be deemed included in Taxes for each
calendar year the annual installment of such assessment becoming
payable during such calendar year, together with interest payable
during such calendar 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.
(b) The term "Landlord's Basic Tax Liability" shall mean the tax
liability of Landlord for the fiscal year July 1, 1998 - June 30,
1999 for Taxes.
(c) The term "Landlord's Base Tax Year" shall mean the fiscal year
July 1, 1998 - June 30, 1999.
(d) The term "Tenant's Proportionate Share" shall mean 3.61%.
(e) The term "Wages" shall mean the minimum regular hourly wage rate
payable to porters (one such person, a "Xxxxxx") employed at
Class A office buildings pursuant to the commercial building
agreement (the "Commercial Building Agreement") between the
Realty Advisory Board on Labor Relations, Inc. and Local 32B-32J
Service Employees International Union, AFL-CIO, or successor
parties, or as required by law. The terms of the immediately
preceding sentence shall be effective whether or not the Building
of which the demised premises forms a part is a Class A office
building or employs such a Xxxxxx, as Wages is intended to be a
substitute comparative index as opposed to an actual operating
expense escalation calculation and is not intended to reflect the
actual cost of
wages and other expenses for the Building or increases or
decreases thereto. If the Commercial Building Agreement expires
or is otherwise terminated, then until commencement of the new
Commercial Building Agreement Wages shall be determined in
accordance with the last effective Commercial Building Agreement,
except the minimum regular hourly wage rate shall be deemed to
increase annually by the average of its annual percentage
increases over the term of the last effective Commercial Building
Agreement; the terms of any new Commercial Building Agreement
shall be applied and payments shall be adjusted retroactively to
the first day of coverage thereunder. If any classification,
category, definition, description, entity or party referred to in
this Rider is succeeded (or modified), replaced or eliminated,
the successor or replacement, or a substitute determined by
Landlord in Landlord's sole judgement in the event of an
elimination, shall be utilized to make calculations under this
Rider; it being the intention of Landlord and Tenant that
sufficient factors shall always exist to determine Wages in a
manner materially the same as the manner employed by Landlord on
the date of this Lease.
(f) The term "Basic Wages" shall mean the Wages in effect on January
1, 198
(g) The term "Landlord's Statement" shall mean an instrument
containing a computation of any Additional Rent due pursuant to
the provisions of the Lease. Nothing herein contained shall
restrict Landlord from issuing Landlord's Statements at any time
that there is an increase in Taxes during any fiscal year or an
increase in Wages during any calendar year.
B. (a) If Taxes payable in any fiscal yearn falling wholly or partially
within the Term shall be in such amount as shall constitute an increase
above Landlord's Basic Tax Liability, Tenant shall pay as Additional
Rent for such fiscal year a sum equal to Tenant's Proportionate Share
of the amount by which Taxes for such fiscal year exceed Landlord's
Basic Tax Liability.
(b) On the first day of each month following rendition of each
Landlord's Statement which shows payment of Additional Rent due
from Tenant pursuant to this Rider, Tenant shall pay to Landlord
on account of the estimated Additional Rent for the fiscal year
following the fiscal year for which Landlord's Statement shall
have been rendered, a sum equal to one-twelfth (1/12th) of the
total Additional Rent shown on such Landlord's Statement. Such
Additional Rent shall be due and payable at the same time as each
monthly installment of Fixed Rent.
(c) A reconciliation shall be made upon each Landlord's Statement as
follows: Tenant shall be debited with any Additional Rent shown
on such Landlord's Statement and credited with the aggregate of
the total amount, if any, paid by Tenant in accordance with the
provisions of paragraph(b) on account of the estimated Additional
Rent for the fiscal year in question, and within ten (10) days
following rendition of such Landlord's Statement, Tenant shall
pay to Landlord the amount of any net debit balance shown
thereon, or Landlord shall apply
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against the next ensuing installments of Fixed Rent any net
credit balance shown thereon.
(d) If, as a result of any application or proceeding brought by or on
behalf of Landlord for reduction in the assessed valuation of the
Real Property affecting any fiscal year commencing after
Landlord's Base Tax Year, there shall be a decrease in Taxes for
any such fiscal year with respect to which Landlord shall have
previously rendered a Landlord's Statement, Landlords Statement
next following such decrease shall include an adjustment for such
fiscal year reflecting such decrease in Taxes (less all costs and
expenses, including counsel fees, incurred by Landlord in
connection with the application or proceeding to reduce the Taxes
with respect to any fiscal year occurring after Landlord's Base
Tax Year).
C. The annual Fixed Rate payable under this Lease shall be adjusted from
time to time in the manner provided for in this Rider,
(a) If an annual Fixed Rent increase shall become effective, or if
Wages shall increase any time under the terms of the Commercial
Building Agreement or by virtue of amendments or successions to
the Commercial Building Agreement, including without limitation,
increases in the minimum regular hourly wage and/or the accrual
of benefits based on the Xxxxxx'x seniority, then effective from
the date of such increase in the annual Fixed Rate or Wages, the
annual Fixed Rent payable under this Lease shall be increased
(the "Adjustment") as stated in this Lease and/or by 1% of the
total amount of annual Fixed Rent payable under this Lease for
each one percent (1%) and pro rata for any fraction of one
percent (1%) by which Wages shall exceed Base Wages.
(b) Landlord shall furnish to Tenant, prior to the commencement of
each calendar year, a written statement setting forth Landlord's
estimate of Tenant's Adjustments for such calendar year, and the
method of calculation of Tenant's Adjustments for such calendar
year. Tenant shall pay to Landlord on the first day of each month
during such calendar year an amount equal to one-twelfth (1/12th)
of Landlord's estimate for a calendar year subsequent to the
commencement thereof, then (x) until the first day of the month
following the month in which such estimate is furnished to
Tenant, Tenant shall pay to Landlord on the first day of each
month an amount equal to the monthly sum payable by Tenant to
Landlord under this Rider in respect of the last month of the
preceding calendar year; (y) promptly after such estimate is
furnished to Tenant or together therewith, Landlord shall give
notice to Tenant stating whether the installments of Tenant's
Adjustments previously made for such calendar year were greater
or less than the installments of Tenant's Adjustments to be made
for such calendar year in accordance with such estimate, and (i)
if there shall be a deficiency, Tenant shall pay the amount
thereof within ten (10) days after demand therefor, or (ii) if
there shall have been an overpayment, Landlord shall promptly
either refund to Tenant the amount thereof or permit Tenant to
credit the amount thereof against subsequent payments under this
Rider; and (z) on the first day of the month
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following the month in which such estimate is furnished to
Tenant, and monthly thereafter throughout the remainder of such
calendar year, Tenant shall pay to Landlord an amount equal to
one-twelfth (1/12th) of Tenant's Adjustments shown on such
estimate. Landlord may at any time or from time to time furnish
to Tenant a revised statement of Landlord's estimate of Tenant's
Adjustments for such calendar year, based upon either of the
methods set forth in the Rider for computing Tenant's
Adjustments; and in such case, Tenant's Adjustments for such
calendar year shall be adjusted and paid or refunded, as the case
may be, substantially in the same manner as provided in the
preceding sentence.
(c) After the end of each calendar year Landlord shall furnish to
Tenant a Landlord's Statement for such calendar year. If the
Landlord's Statement shall show ha the sums paid by Tenant
hereunder exceeded Tenant's Adjustments required to be paid by
Tenant for such calendar year, Landlord shall refund to Tenant
the amount of such excess or, at Landlord's election, credit the
amount of such excess against subsequent payments under this
Rider; and if the Landlord's Statement for such calendar year
shall show that the sums so paid by Tenant were less than
Tenant's Adjustments required to be paid by Tenant for such
calendar year, Tenant shall pay the amount of such deficiency
within ten (10) days after demand therefor.
D. In no event shall Fixed Rent ever be reduced by operation of this
Rider.
E. Landlord's Statement shall be rendered to Tenant in accordance with the
provisions of Article 28 of this lease. Landlord's failure to render
Landlord's Statements with respect to any such increase in Taxes or
Wages during any fiscal or calendar year shall not prejudice Landlord's
right to render a Landlord's Statement with respect thereto or with
respect to any subsequent fiscal or calendar year. Nothing herein
contained shall restrict Landlord from issuing Landlord's Statements at
any time there is an increase in Wages or Taxes during any fiscal or
calendar year or any time thereafter. The obligations of Landlord and
Tenant under the provisions of this Rider with respect to any
Additional Rent shall survive the Expiration Date or any sooner
termination of the Term.
F. Each Landlord's Statement shall be conclusive and binding upon Tenant
unless within thirty (30) days after receipt of such Landlord's
Statement, time being deemed of the essence, Tenant shall notify
Landlord that it disputes the correctness of Landlord's Statement,
specifying the respects in which Landlord's Statement is claimed to be
incorrect as well as any and all relevant additional information tenant
may reasonably request of Landlord. Pending the determination of any
such dispute by agreement or otherwise, Tenant shall pay Additional
Rent in accordance with the applicable Landlord's Statement, and such
payment shall be without prejudice to Tenant's position. Tenant's right
to contest set forth immediately above is subject to and contingent
upon Tenant's (i) timely paying in full Landlord's statement in
question, (ii) paying all Landlord's reasonable expenses incurred in
connection with Tenant's dispute and/or request for information
including without limitation out of pocket expenses, and wages and
benefits of Landlord's and Landlord's agent's employees for said
employees' hours of work directly relating to Tenant's dispute and/or
request for information, and (iii) being
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represented in connection with Tenant's dispute only be Tenant's
principals, officers and employees, and outside parties, if any,
compensated only by hourly fee or flat rate and not by a percentage of
Tenant's related recovery. Tenant acknowledges that Landlord's books
and records are confidential and are not available for examination. If
the dispute shall be determined in Tenant's favor, Landlord shall
forthwith pay to Tenant the amount of Tenant's overpayment of
Additional Rent resulting from compliance with Landlord's Statement.
Any Adjustment for less than a year or for less than a month shall be
prorated. No computation under this Rider shall result in a reduction
to the annual Fixed Rent in effect at the time of the subject
computation. Tenant's liability under this Rider shall survive the
termination of this Lease.
G. The computations of Additional Rent under this Rider are intended to
constitute a formula for an agreed rental adjustment and may or may not
constitute an actual reimbursement to Landlord for costs and expenses
paid by Landlord with respect to the Building.
LANDLORD: 130 XXXXXXX LLC TENANT: WALL STREET STRATEGIES, INC.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxxx
------------------------ --------------------------------
XXXXXX XXXXXX, Member NAME: Xxxxxxx Xxxxx
TITLE:
5
ELECTRICITY RIDER TO
AGREEMENT OF LEASE BETWEEN
130 XXXXXXX LLC,
AS LANDLORD, AND
WALL STREET STRATEGIES, INC., AS TENANT
ELECTRICITY:
A. (i) Electricity shall be provided to Tenant in the Premises on a so-called
"rent inclusion" basis. Tenant agrees that the portion of the Fixed Rent set
forth in Article 37 presently attributed to the finishing of electric current is
the annual sum of $12,513.00 and is subject to increase as hereinafter provided.
Landlord will furnish electricity to Tenant through presently installed
electrical facilities for Tenant's reasonable use of such lighting, electrical
appliances, air conditioning systems and equipment as presently exist or as
Tenant may be permitted to install in the Premises, subject to Landlord's
consent which will not be unreasonably withheld or delayed. Tenant agrees that
an electrical engineer or utility consultant, selected by Landlord, may, from
time to time during the Term, make a survey of the electric lighting and power
load by metering or otherwise to determine Tenant's average monthly electrical
energy consumption in the Premises ("Tenant's Electric Consumption") based upon
(i) the connected load rating of each item consuming electric energy, (ii)
Tenant's usage which shall be determined by multiplying the connected load
rating of each item by the hours of usage as determined by the consultant, and
(iii) the electric rates in Service Classification No. 4 of Consolidated Edison
Company of New York, Inc. or any successor thereto applicable to Landlord,
inclusive of all surcharges or taxes thereon including any sales tax as a result
of the resale of such energy to Tenant. The findings of such engineers or
consultant as to the proper Fixed Rent increase based on Tenant' s Electric
Consumption shall be conclusive and binding upon the parties and the amount
thereof shall be added to the Fixed Rent payable monthly on the first day of
each and every month in advance for each month from the date the change in
electrical energy consumption occurred (as determined by Landlord's electrical
engineer or utility consultant).
(ii) If the Electric Rates on which the initial determination of said
consultant shall be increased, then the sum included in Fixed Rent by reason of
this Article shall be increased by the same percentage as such change in the
Electric Rates, retroactive to the date of such increase in such Electric Rates,
and the amount payable from the effective date of such increase to the last day
of the month in which Tenant shall be billed therefor shall be paid within 10
days after Landlord furnishes Tenant with a statement thereof. The term
"Electric Rates" shall be deemed to mean the rates at which Landlord purchases
electrical energy from the public utility supplying electrical service to the
Building, including any surcharges or charges incurred or taxes payable by
Landlord in connection therewith or in connection with the furnishing of
electrical energy by Landlord on a rent-inclusion basis or increase or decrease
thereof by reason of fuel adjustment or any substitutions for such Electric
Rates or additions thereto.
(iii) In the event Landlord elects to purchase capital equipment or
make other capital expenditures to reduce Landlord's cost of electricity,
Landlord shall receive the full benefit of such capital expenditure, and Tenant
shall continue to pay Fixed Rent for electricity, and such
Fixed Rent shall be calculated s hereinabove described, without regard to the
fact that Landlord has reduced its cost of electricity by virtue of such capital
expenditure.
(iv) In no event shall the amount charged Tenant for the furnishing of
electric current be reduced by operation of this Article from the amount
included in Fixed Rent above.
B. At the option of Landlord, in lieu of providing electricity on a "rent
inclusion" basis, electricity may be provided to the Premises by Landlord so
long as legally permissible in the Building to service the Premises for the uses
herein permitted and in such event, Tenant covenants and agrees to purchase the
same from Landlord or Landlord's designated agent, Landlord shall install a
meter(s) or submeter(s) to measure Tenant's consumption of electrical energy in
the Premises. The costs incurred in connection with the installation of such
meter(s) or submeter(s) shall be credited towards Landlord's Contribution (as
defined in Exhibit C attached hereto). The portion of Fixed Rent attributed to
Tenant's electrical consumption as set forth in paragraph A shall be reduced
from Tenant's Fixed Rent and Tenant shall pay Landlord as Additional Rent, the
amounts as determined by such meter(s) or submeter(s) for the purpose of
measuring such consumption calculated by applying to Tenant's measured
electrical demand and consumption the public utility rate schedule then
applicable to Landlord for the purchase of electricity for the Building, without
regard to the electricity used in the rest of the Building, including any
surcharges or charges incurred or taxes payable by Landlord in connection
therewith or increase or decrease thereof by reason of fuel adjustment or any
substitutions for such electric rates or additions thereto, plus an additional
seven percent (7%) of such aggregate amount. Where more than one meter measures
the service to the Premises, the service rendered through each meter shall be
aggregated and billed in accordance with the provisions set forth above. Bills
shall be rendered at such times as Landlord may elect and, commencing the
earlier of (i) Tenant's occupancy of any of the Premises or (ii) the
Commencement Date, the amounts computed from such meter readings shall be
Additional Rent and shall be due and payable, without setoff or deduction, upon
the rendition of such bills. If any tax is imposed upon Landlord's receipts for
the sale or resale of electrical energy to Tenant, the pro rata share allocable
to the electrical energy service received by Tenant shall be passed on to Tenant
to the extent permitted by law. If electricity is furnished on the basis of this
Paragraph B, the Fixed Rent set forth in Article 37 shall be reduced by the
amount contained in Paragraph A above effective upon the furnishing of
electricity in the manner provided in this Paragraph B.
C. Tenant's use of electrical energy in the Premises shall never exceed the
portion of the capacity allocable to Tenant of (i) the existing feeders to the
Building or the electricity available to Tenant through then existing risers or
wiring installations to the Premises or (ii) any of the electrical conductors,
machinery and equipment in or otherwise serving the Premises (in any event,
giving due consideration to the needs of existing and potential tenants using
the same risers, wiring installations or other equipment, as well as to
Landlord's electrical needs in connection with the operation of the Building and
the provision of emergency services). No additional riser or risers or other
equipment to supply Tenant's electrical requirements shall be installed without
Landlord's prior approval, which may be withheld in Landlord's sole and absolute
discretion. In order to insure that the electrical capacity of the Building's
electrical facilities is not exceeded and to avert possible adverse effect upon
the Building's electrical system. Tenant shall not, without the prior consent of
Landlord, make or perform or permit any
2
alteration to wiring installations or other electrical facilities in or serving
the Premises or any additions to the electrical fixtures, business machines or
office equipment or appliances (other than typewriters and similar low energy
consuming office machines) in the Premises which utilize electrical energy. Any
additional risers, feeders, or other equipment proper or necessary to supply
Tenant's electrical requirements,, upon written request of Tenant, will be
installed by Landlord at the sole cost and expense of Tenant, if, in Landlord's
sole judgment, the same will not interfere with Landlord's present or
anticipated future electrical needs with respect to the Building and/or existing
or future tenants of the Building or cause permanent damage or injury to the
Building or entail excessive or unreasonable alterations or interfere with or
disturb other tenants. Landlord, its agents and engineers and consultants may
survey the electrical fixtures, appliances and equipment in the Premises and
Tenant's use of electrical energy therein from time to time to determine whether
Tenant is complying with its obligations under this Article. All such surveys
shall be made at the sole cost and expense of Tenant. Each increase in Fixed
Rent under this Article shall be effective on the date such additional
electrical energy is made available to Tenant.
D. Landlord shall have no liability to Tenant for any loss, damage or expense
which tenant may sustain or incur by reason of any change, failure, inadequacy
or defect in the supply or character of the electrical energy furnished to the
Premises or if the quantity or character of the electrical energy is no longer
available or suitable for Tenant's requirements except for any actual damage
suffered by Tenant by reason of any such failure, inadequacy or defect cause by
Landlord's negligence, and then only after actual notice as provided in Article
28.
E. Provided that such termination is effected on a Building-wide basis and is
made applicable to all other tenants and occupants of the Building as well as to
Tenant, Landlord reserves the right to terminate the furnishing of electrical
energy at any time, upon sixty (60) days' prior notice to Tenant unless such
notice is not feasible under the circumstances, in which event Landlord will
give Tenant such reasonable notice as is possible. If Landlord shall so
discontinue the furnishing of electrical energy, (i) Tenant shall arrange to
obtain electrical energy directly from the public utility company furnishing
electrical energy to the Building, (ii) Landlord shall permit the existing
feeders, risers, wiring and other electrical facilities serving the Premises to
be used by Tenant for such purpose the extent that they are available, suitable,
legally permissible and clean, (iii) from and after the effective date of such
discontinuance Landlord shall not be obligated to furnish electrical energy to
Tenant and, if electricity is then being provided on a rent-inclusion basis, the
Fixed Rent payable under this lease shall be reduced to the amount which would
have been then payable as Fixed Rent as of such date but for the adjustment
under Paragraph A above, (iv) this lease shall otherwise remain in full force
and effect and such discontinuance shall be without liability of Landlord to
Tenant and (v) if Landlord shall discontinue the furnishing of electrical energy
as a result of any Legal Requirement or Insurance Requirement, Landlord shall,
at Tenant's expense, install at locations in the Building selected by Landlord
and maintain any necessary electrical meter equipment, panel boards, feeders,
risers, wiring and other conductors and equipment which may be required to
obtain electrical energy directly from the public utility supplying the same,
otherwise Landlord shall pay the cost of the same, Landlord, at its option,
before commencing any work to be paid by Tenant hereunder or at any time
thereafter, may require Tenant to furnish to Landlord such security, whether by
surety bond issued by a corporation satisfactory to Landlord in form and amount
and licensed to do
3
business in New York State or otherwise as Landlord shall deem necessary to
assure the payment for such work by Tenant.
LANDLORD: 130 XXXXXXX LLC TENANT: WALL STREET STRATEGIES, INC.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxxx
------------------------ --------------------------------
XXXXXX XXXXXX, Member NAME:
TITLE:
4
ASSIGNMENT / SUBLETTING RIDER TO
AGREEMENT OF LEASE BETWEEN
130 XXXXXXX LLC,
AS LANDLORD, AND
WALL STREET STRATEGIES, INC., AS TENANT
SUBLETTING AND ASSIGNMENT:
A. If Tenant desires to assign this Lease or sublet the demised premises in part
or in its entirety (the "Designated Premises"), Tenant shall submit to Landlord
a written request for Landlord's consent to such assignment or subletting, which
request shall contain or be accompanied by the following information:
(i) the name and address of the proposed assignee or subtenant; (ii) the terms
and conditions of the proposed assignment or subletting; (iii) the nature and
character of the business of the proposed assignee or subtenant and of its
proposed use of the demised premises; (iv) current financial information; (v) a
description of the proposed assigned or sublet space; and (vi) any other
information as Landlord may reasonably request with respect to the proposed
assignee or subtenant. Landlord shall have the option, to be exercised by notice
given to Tenant within fifteen (15) days after the later of (a) receipt of
Tenant's request for consent or (b) receipt of such further information as
Landlord may reasonably request pursuant to clause (vi) above, to require a
surrender of the Designated premises as of a date to be specified in said notice
(the "Termination Date") which shall be not earlier than one (1) day before the
effective date of the proposed assignment or subletting or later than sixty one
(61) days after said effective date, in which event Tenant shall vacate and
surrender the Designated Premises on or before the Termination Date and the term
of this lease relating to the Designated Premises shall end on the Termination
Date as if that were the Expiration Date.
B. If Landlord shall not exercise its option under Paragraph A above, Landlord
shall not unreasonably withhold, condition or delay its consent to the proposed
assignment or subletting referred to in Tenant's notice given pursuant to
Paragraph A above, provided the proposed assignment or subletting is in writing
and that the following further conditions shall be fulfilled:
(a) there shall be no advertisement or public communication of any kind whatever
related to the proposed assignment or subletting which mentions or refers to a
rental rate (but Tenant may negotiate or consummate a sublease at a lesser rate
of rent) or to any other matter which directly or indirectly might adversely
reflect on the dignity or prestige of the Building;
(b) the lease shall not be assigned, and no space shall be sublet to another
tenant, or to a related corporation of any other tenant or to any other occupant
of the Building, if Landlord shall then have comparable space in the Building
available for rent;
(c) in the case of a subletting, the subletting shall be expressly subject to
all of the provisions of this lease and the obligations of Tenant hereunder and,
without limiting the generality of the foregoing, the sublease shall impose at
least the same restrictions and conditions with respect to
use as are contained in Article 2 and shall specifically provide that there
shall be no further subletting of the sublet premises;
(d) any such assignment or subletting will result in there being no more than
one (1) occupant of the Premises other than Tenant;
(e) the rent for such subletting is not less than the then going market rental
rate for comparable space and for a comparable term;
(f) the proposed assignee or subtenant shall not be a person then negotiating
with Landlord for the rental of any space in the Building;
(g) Landlord shall be furnished with a duplicate original of the sublease or
assignment within ten (10) days after the date of its execution;
(h) Tenant shall pay to Landlord as Additional Rent, a sum equal to 100% of (x)
any fixed rent and additional rent or other consideration paid to Tenant by any
assignee or subtenant which is in excess of the Fixed Rent and Additional Rent
then being paid by Tenant to Landlord pursuant to the terms hereof, and (y) any
other profit or gain realized by Tenant from any such assignment or subletting.
If only a part of the demised premises is sublet, then the rent paid therefor by
Tenant to Landlord shall be equitably apportioned;
(i) there shall be no default by Tenant under this lease when Landlord's consent
to any such assignment or subletting is requested or upon the commencement of
the term of any such proposed assignment or sublease;
(j) the proposed assignee or sublessee is engaged in a business, and shall use
the Premises, in a manner which is in keeping with the standards of the Building
and its other tenancies;
(k) the proposed assignee or sublessee is a reputable person or entity of good
character and with sufficient financial worth and Landlord has been furnished
with reasonable proof thereof;
(l) Tenant shall pay all of Landlord's costs and expenses in connection with
such assignment or subletting, including without limitation, costs of making
investigations as to the acceptability of a proposed subtenant or assignee; and
(m) the written instrument evidencing the proposed assignment or subletting
contains affirmative language whereby the assignee or subtenant acknowledges and
agrees that its interest shall be subject and subordinate to any mortgage on the
Building and the other matters set forth in Article 7.
C. No assignment of this lease shall be binding upon Landlord unless Tenant
shall deliver to Landlord (a) a duplicate original instrument of assignment in
form and substance reasonably satisfactory to Landlord, duly executed by Tenant,
and (b) an agreement, in form and substance reasonably satisfactory to Landlord,
duly executed by the assignee, whereby the assignee shall unconditionally assume
observance and performance of all of the terms and conditions of this lease on
Tenant's part to be observed or performed.
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D. If this lease be [sic] assigned, whether or not in violation of the terms of
this lease, Landlord may collect rent from the assignee. If the demised premises
or any part thereof be sublet or be used or occupied by anybody other than
Tenant, whether or not in violation of this lease, Landlord may, after default
by Tenant and expiration of Tenant's time to cure such default, if any, collect
rent from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Article 11 of this lease or this Article, or the acceptance of the
assignee, subtenant or occupant as a tenant, or a release of Tenant from the
further performance by Tenant of Tenant's obligations under this lease. The
consent by Landlord to an assignment, transfer, encumbering or subletting
pursuant to any provision of this lease shall not in any way be considered to
relieve Tenant from obtaining the express prior consent of Landlord to any other
or further assignment, transfer, encumbering or subletting. The listing of any
name other than that of Tenant on any door of the demised premises or on any
directory or in any elevator in the Building, or otherwise, shall not operate to
vest in the person so named any right or interest in this lease or the demised
premises. Tenant agrees to pay Landlord's reasonably attorneys' fees and
disbursements in connection with any proposed assignment of this lease or any
proposed subletting of the demised premises or any part thereof. Neither any
assignment of this lease, nor any subletting, occupancy or use of the demised
premises or any part thereof by any person other than Tenant, nor any collection
of rent by Landlord from any person other than Tenant, nor any application of
any such rent as provided in this Article shall, under any circumstances,
relieve, impair, release or discharge Tenant of its obligations fully to perform
the terms of this lease on Tenant's part to be performed.
E. The transfer of a majority of the issued and outstanding capital stock of any
corporate Tenant, subtenant or permitted assignee of this lease, the transfer of
a majority of the interest in any limited liability company Tenant, subtenant or
permitted assignee, or the transfer of a majority of the interest in any
partnership Tenant, subtenant or permitted assignee, however accomplished, and
whether in a single transaction or in a series of related or unrelated
transactions, shall be deemed an assignment of this lease or such sublease.
F. If required by applicable law, Tenant shall complete, swear to and file any
questionnaires, tax returns, affidavits or other documentation which may be
required to be filed as a result of an assignment, sublease or sale of this
Lease by Tenant (a) with the New York State Department of Taxation and Finance
in connection with Article 31-B of the Tax Law of the State of New York, (b)
with the Commissioner of Finance of the City of New York in connection with the
New York City Real Property Transfer Tax and (c) with the appropriate
governmental agency in connection with any other tax which may now or hereafter
be in effect in connection with any such assignment, sublease or sale of this
Lease. Tenant further agrees to pay any amounts which may be assessed in
connection with any of such taxes and to indemnify Landlord against and to hold
Landlord harmless from any claims for payment of such taxes. The provisions of
this Article shall survive the expiration or sooner termination of this lease.
3
LANDLORD: 130 XXXXXXX LLC TENANT: WALL STREET STRATEGIES, INC.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxxx
------------------------ --------------------------------
XXXXXX XXXXXX, Member NAME: Xxxxxxx Xxxxx
TITLE:
4
GUARANTY
In consideration of, and as an inducement to 130 XXXXXXX LLC
("Landlord") to enter that certain lease of even date herewith (the "Lease")
with WALL STREET STRATEGIES, INC. ("Tenant") for a portion of the fourth (4th)
floor of the building having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 and in further consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
undersigned ("Guarantor"), hereby guarantees, absolutely and unconditionally, to
Landlord the full and prompt performance of all terms, covenants, conditions and
agreements to be performed and observed by Tenant under the Lease and any and
all amendments, modifications and other instruments relating thereto, whether
now or hereafter existing, and the full and prompt payment of all damages, costs
and expenses which shall at any time be recoverable by Landlord from Tenant by
virtue of the Lease and any amendments, modifications and other instruments
relating thereto (hereinafter called "Liabilities of Tenant"); and Guarantor
hereby covenants and agrees to and with Landlord, its successors and assigns,
that if Tenant, its successors and assigns, shall default at any time in the
payment of Fixed Rent and Additional Rent (both as defined in the Lease), or any
other sums or charges payable by Tenant under the Lease or in the performance of
any of the terms, covenants, provisions or conditions contained in the Lease,
Guarantor will forthwith pay to Landlord, its successors and assigns, such Fixed
Rent and Additional Rent and other sums and charges and will forthwith
faithfully perform and fulfill all of such terms, covenants, conditions and
provisions of the Lease and will forthwith pay to Landlord all damages that may
arise in consequence of any such default by Tenant.
Guarantor agrees that, with or without notice or demand,
Guarantor will reimburse Landlord, to the extent that such reimbursement is not
made by Tenant, for all expenses (including reasonable attorneys' fees and
disbursements) incurred by Landlord in connection with any default by Tenant
under the Lease or the default by Guarantor under this Guaranty.
All moneys available to Landlord for application in payment or
reduction of the Liabilities of Tenant may be applied by Landlord, in such
manner and in such amounts and at such time or times as it may see fit, to the
payment or reduction of such of the Liabilities of Tenant as Landlord may elect.
This Guaranty shall be a continuing guaranty, and the
liability of the Guarantor hereunder shall in no way be affected, modified or
diminished by reason that any security for the Liabilities of Tenant is
exchanged, surrendered or released or the Lease or any other obligation of
Tenant is changed, altered, renewed, extended, continued, surrendered,
compromised, waived or released in whole or in part, or that any default with
respect thereto is waived, whether or not notice thereof is given to Guarantor,
and it is understood and agreed that Landlord may fail to set off and may
release, in whole or in part, any credit on its books in favor of Tenant, and
may extend further credit in any manner whatsoever to Tenant, and generally deal
with Tenant or any such security as Landlord may see fit; and Guarantor shall
remain bound under this Guaranty notwithstanding any such exchange, surrender,
release, change, alteration, renewal, extension, continuance, compromise,
waiver, inaction, extension of further credit or other dealing.
Notwithstanding any provision to the contrary contained
herein, Guarantor hereby unconditionally and irrevocably waives (a) any and all
rights of subrogation (whether arising under contract, 11 U.S.C. ss. 509 or
otherwise) to the claims, whether existing now or arising hereafter, Landlord
may have against Tenant, and (b) any and all rights of reimbursement,
contribution or indemnity against Tenant which may have heretofore arisen or may
hereafter arise in connection with any guaranty or pledge or grant of any lien
or security interest made in connection with the Lease. Guarantor hereby
acknowledges that the waiver contained in the preceding sentence (the
"Subrogation Waiver") is given as an inducement to Landlord to enter into the
Lease and, in consideration of Landlord's willingness to enter into the Lease,
Guarantor agrees not to amend or modify in any way the Subrogation Waiver
without Landlord's prior written consent. If any amount shall be paid to
Guarantor by Tenant on account of any claim set forth at any time when all the
Liabilities of Tenant shall not have been paid in full, such amount shall be
held in trust by Guarantor for Landlord's benefit, shall be segregated from the
other funds of Guarantor and shall forthwith be paid over to Landlord to be
applied in whole or in part by Landlord against the Liabilities of Tenant,
whether matured or unmatured. Nothing herein contained is intended or shall be
construed to give to Guarantor any rights of subrogation or right to participate
in any way in Landlord's right, title or interest in the Lease, notwithstanding
any payments made by Guarantor to or toward any payments due from Guarantor
under this Guaranty, all such rights of subrogation and participation being
hereby expressly waived and released.
Guarantor hereby expressly waives (a) notice of acceptance of
this Guaranty; (b) presentment and demand for payment of any of the Liabilities
of Tenant; (c) protest and notice of dishonor or default to Guarantor or to any
other party with respect to any of the Liabilities of Tenant; (d) all other
notice to which Guarantor might otherwise be entitled; and (e) any demand for
payment under this Guaranty; and Guarantor hereby expressly agrees that the
validity of this Guaranty and the obligations of Guarantor hereunder shall not
be terminated, affected or impaired by reason of the assertion or the failure to
assert by Landlord against Tenant, or Tenant's successors and assigns, of any of
the rights or remedies reserved to Landlord pursuant to provisions of the Lease.
This is an absolute and unconditional guaranty of payment and
not of collection and Guarantor further waives any right to require that any
action be brought against Tenant or any other person or entity or to require
that resort be had to any security or to any balance of any deposit account or
credit on the books of Landlord in favor of Tenant or any other person or
entity. Successive recoveries may be had hereunder. No invalidity, irregularity
or unenforceability of all or any part of the Lease shall affect, impair or be a
defense to this Guaranty and this Guaranty shall constitute a primary obligation
of the undersigned.
Each reference herein to Landlord shall be deemed to include
its successors and assigns, in whose favor the provisions of this Guaranty shall
also inure. Each reference herein to Guarantor shall be deemed to include the
heirs, distributees, executors, administrators, legal representatives,
successors and assigns of Guarantor, all of whom shall be bound by the
provisions of this Guaranty.
No delay on the part of Landlord in exercising any rights
hereunder or failure to exercise the same shall operate as a waiver of such
rights; no notice to or demand on Guarantor shall be deemed to be a waiver of
the obligation of Guarantor or of the right of Landlord to take further action
without notice or demand as provided herein; nor in any event shall any
modification or waiver of the provisions of this
Guaranty nor any termination hereof be effective unless in writing signed by
Landlord, nor shall any waiver be applicable except in the specific instance for
which given.
This Guaranty shall continue to be effective or be reinstated,
as the case may be, if any payment of Guarantor on account of the Liabilities of
Tenant must be returned by Landlord upon the insolvency, bankruptcy or
reorganization of Tenant, Guarantor, or otherwise, as though such payment had
not been made.
This Guaranty is, and shall be deemed to be, a contract
entered into under and pursuant to the laws of the State of New York shall be in
all respects governed, construed, applied and enforced in accordance with the
laws of such State; and no defense given or allowed by the laws of any other
State or Country shall be interposed in any action or proceeding hereon unless
such defense is also given or allowed by the laws of the State of New York. In
any action or proceeding arising out of this Guaranty, Guarantor agrees to
submit to personal jurisdiction in the State of New York. Guarantor agrees to
pay all costs and expenses, including, without limitation, reasonable attorneys'
fees, which are incurred by Landlord in the enforcement of this Guaranty.
This Guaranty may be executed in one or more counterparts,
each of which counterparts shall be an original. If Guarantor is a corporation,
partnership, joint venture or unincorporated association, each individual
executing this Guaranty on behalf of such entity represents and warrants that he
or she is duly authorized to execute and deliver this Guaranty on behalf of such
entity and that this Guaranty is binding upon such entity in accordance with its
terms.
All of Landlord's rights and remedies under the Lease or under
this Guaranty are intended to be distinct, separate and cumulative and no such
right and remedy therein or herein mentioned is intended to be in exclusion of
or a waiver of any of the others.
As a further inducement to Landlord to accept the Lease and in
consideration thereof, Landlord and Guarantor covenant and agree that in any
action or proceeding brought on, under or by virtue of this Guaranty, Landlord
and the Guarantor shall and do hereby waive trial by jury.
This Guaranty shall not be affected by any assignment of the
Lease by Tenant.
Any notices which either party herein may desire to give to
the other shall be made in writing and shall be given by certified or registered
mail, postage prepaid, return receipt requested, or by a nationally recognized
overnight courier, such as Federal Express or Airborne Express, and shall be
deemed to be given on the third (3rd) business day after the date of posting in
a United States Post Office or branch post office or one day after delivery to
the overnight courier, and shall be delivered to Landlord, c/x Xxxxxx Management
Corporation, 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Property
Manager for 000 Xxxxxxx Xxxxxx. Notices for Guarantor(s) shall be sent to the
address(es) set forth below. Either party may, by notice as aforesaid actually
received, designate a different address or addresses for communications intended
for it.
Notwithstanding anything herein to the contrary, Landlord shall not
take any action pursuant to this Guaranty or otherwise enforce this Guaranty if,
in anticipation of, upon or following an event of default by Tenant under the
Lease:
(i) Tenant agrees to terminate the Lease by written
notice ("Termination Notice"), which termination
shall be effective on a date which shall be at least
sixty days following the date the Termination Notice
was given ("Termination Date");
(ii) Tenant voluntarily surrenders and vacates the
Premises on or prior to the Termination Date without
causing Landlord to incur any unreimbursed damage, or
out-of-pocket cost or expense in connection with such
event of default or Termination Notice and executes a
surrender agreement and/or a stipulation or warrant
of eviction in a form acceptable to Landlord; and
(iii) Tenant and/or Guarantor (x) cure such event of
default and all other past events of defaults, if
any, whether monetary or otherwise, including,
without limitation, any late charges and/or penalties
(including the Fronted Expenses set forth in
paragraph 37(B)), (y) make all payments due and
perform all of Tenant's obligations under and in
accordance with the Lease through the Termination
Date.
In the event all of the foregoing conditions are not
satisfied, it hereby understood and agreed that the Guaranty shall continue in
full force and effect and Landlord shall have the right to enforce the terms of
the Guaranty to the fullest extent possible.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of
the day of July, 1998.
XXXXXXX XXXXX
Residing at 000 Xxx Xxxxxx, Xxxxxxx, XX 00000
Social Security Number(s): XXXXXXX XXXXX 000 - 00 - 0000
Guarantor Notice Address: 000 Xxx Xxxxxx, Xxxxxxx, XX 00000
STATE OF NEW YORK)
ss.:
COUNTY OF NEW YORK)
On the 21st day of July in the year 1998 before me, the undersigned, a
notary public in and for said state, personally appeared XXXXXXX XXXXX,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
GUARANTY
by
XXXXXXX XXXXX
of
LEASE
dated July 23, 1998
Between
130 XXXXXXX LLC,
Landlord,
AND
WALL STREET STRATEGIES, INC.,
Tenant.
Premises:
Portion of Fourth (4th) Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RIDER ANNEXED TO
AGREEMENT OF LEASE BETWEEN
130 XXXXXXX LLC,
AS LANDLORD, AND
WALL STREET STRATEGIES, INC., AS TENANT
FIXED RENT; LATE PAYMENT CHARGE:
37. A. Commencing on the Commencement Date, Tenant shall pay to Landlord in
accordance with the terms of this lease and without notice or demand, annual
Fixed Rent, inclusive of any payment for electricity pursuant to the electricity
rider attached hereto, in accordance with the following schedule:
(i) in the amount of $85,313.00 per annum for the period
beginning on the Commencement Date and ending on the last day of the
month in which the twelfth (12th) monthly anniversary of the
Commencement Date shall occur, payable in advance in equal monthly
installments of $7,109.38;
(ii) in the amount of $89,863.00 per annum for the period
beginning on the first day of the month in which the thirteenth (13th)
monthly anniversary of the Commencement Date and ending on the last day
of the month in which the twenty fourth (24th) monthly anniversary of
the Commencement Date shall occur, payable in advance in equal monthly
installments of $7,488.54; and
(iii) in the amount of $94,413.00 per annum for the period
beginning on the first day of the month in which the twenty fifth
(25th) monthly anniversary of the Commencement Date shall occur and
ending on the Expiration Date, payable in advance in equal monthly
installments of $7,867.71.
B. Provided this Lease shall be in full force and effect and Tenant
shall not be in default hereunder beyond the expiration of any applicable notice
and cure period, then, notwithstanding the foregoing, the Fixed Rent payable by
Tenant in an amount equal to $6,066.67 per month (the "Abatement Amount") shall
be abated for a period of two (2) months beginning on the Commencement Date
(hereinafter called the "Abatement Period"). Notwithstanding anything to the
contrary contained herein, if Tenant is in default hereunder, Tenant shall not
be entitled to any further Abatement Amount and Tenant shall immediately pay to
Landlord the Fixed Rent otherwise abated pursuant to this Article. Furthermore,
if this Lease shall terminate due to a default by Tenant hereunder or if this
Lease shall be rejected in the case of a bankruptcy, the Fixed Rent otherwise
abated pursuant to this Article shall be immediately due and payable and Tenant
shall immediately pay to Landlord as Additional Rent: (1) any and all payments
of Fixed Rent which have theretofore been waived and (2) the unamortized cost of
any tenant improvement expenses incurred by Landlord, which shall be equal to
the product of (a) the tenant improvement expenses incurred by Landlord, and (b)
a fraction, the numerator of which shall be the number of months and/or portions
thereof from the date of the occurrence of the Event of Default to the
Expiration Date, and the denominator of which shall be the number of months
and/or portions thereof in the Term and (3) the unamortized cost of any
brokerage commission expenses incurred by Landlord, which shall be equal to the
product of (a) the brokerage commission expenses incurred by Landlord, and (b) a
fraction, the numerator of which shall be the number of months and/or portions
thereof from the date of the occurrence of the Event of Default to the
Expiration Date, and the denominator of which shall be the number of months
and/or portions thereof in the Term (collectively, the "Fronted Expenses").
C. If Tenant fails to pay any Fixed Rent or Additional Rent within five
(5) days after the date the same is due, Tenant shall pay a late charge of $.05
for each $1.00 which thereafter remains unpaid to compensate Landlord for
additional expenses incurred by Landlord in processing such late payment.
D. If Tenant fails to pay when due any installment or payment of Fixed
Rent or Additional Rent for ten (10) days after the date on which it is due,
Tenant shall pay interest thereon at a rate ("Interest Rate") equal to the
lesser of 15% per annum or the maximum legal rate from the due date of such
installment or payment to the date of payment thereof, and such interest shall
be deemed to be Additional Rent.
E. Fixed Rent for any period less than one (1) month shall be prorated
based on the number of days in such month.
2
RENT RESTRICTIONS:
38. If the Fixed Rent or any Additional Rent shall be or become uncollectible by
virtue of any law or governmental order, Tenant shall take such action (without
additional expense to Tenant) as Landlord may request, as may be legally
permissible, to permit Landlord to collect the maximum Fixed Rent and Additional
Rent which may, from time to time during the continuance of such legal rent
restriction, be legally permissible, but not in excess of the amounts of Fixed
Rent or Additional Rent payable under this lease. Upon the termination of such
legal rent restriction prior to the Expiration Date, (a) the Fixed Rent and
Additional Rent, after such termination, shall become payable under this lease
in the amount of the Fixed Rent and Additional Rent set forth in this lease for
the period following such termination, and (1)) Tenant shall pay to Landlord, if
legally permissible, an amount equal to (i) the Fixed Rent and Additional Rent
which would have been paid pursuant to this lease, but for such rent
restriction, less (ii) the Fixed Rent and Additional Rent paid by Tenant to
Landlord during the period that such rent restriction was in effect.
ADDITIONAL CLEANING:
39. A. Tenant shall pay to Landlord on demand Landlord's charges for cleaning
work in the Premises or the Building required because of (i) misuse or neglect
on the part of Tenant or its agents, employees, contractors, subcontractors or
visitors, (ii) use of portions of the Premises for preparation, serving, or
consumption of food or beverages, data processing or computer operations,
private lavatories or toilets, or other special purposes requiring greater or
more difficult cleaning work than office areas, (iii) interior glass surfaces,
(iv) non building standard materials or finishes installed by Tenant or at its
request and (v) increases in frequency or scope in any of the items set forth on
Exhibit B as shall have been requested by Tenant.
B. If Tenant is permitted hereunder to and does have a separate area
for the storage, preparation, service or consumption of food or beverages in the
Premises, Tenant, at Tenant's expense, shall cause all portions of the Premises
so used to be cleaned daily in a manner satisfactory to Landlord, and to be
exterminated against infestation by vermin, roaches or rodents regularly and, in
addition, whenever there shall be evidence of any infestation.
C. The cleaning services required to be furnished by Landlord hereunder
may be furnished by a contractor or contractors employed by Landlord and Tenant
agrees that Landlord shall not be deemed in default of any of its cleaning
obligations hereunder unless such default shall continue for an unreasonable
period of time after notice from Tenant to Landlord setting forth the specific
nature of such default.
BROKERAGE:
40. Tenant and Landlord, each represents that in the negotiation of this lease
it dealt with no broker or brokers other than Xxxxxx Xxxxxxxx Company, Inc.
Tenant and Landlord, each hereby agrees to indemnify and hold the other harmless
from and against any and all claims, liabilities, suits, costs and expenses
including reasonable attorneys' fees and disbursements arising out of any
inaccuracy or alleged inaccuracy of the above representation. Landlord shall
have no liability for any brokerage commissions arising out of a sublease or
assignment by Tenant. The provisions of this Article shall survive the
expiration or sooner termination of this lease.
NON-LIABILITY:
3
41. A. Neither Landlord nor Landlord's agents, officers, directors,
shareholders, partners or principals (disclosed or undisclosed) shall be liable
to Tenant or Tenant's agents, employees, contractors, invitees or licensees or
any other occupant of the Premises, and Tenant shall save Landlord, any
mortgagee of the Building and/or the land on which the Building is located (the
"Land; the Land and the Building, collectively, the "Real Property") and their
respective agents, employees, contractors, officers, directors, shareholders,
partners and principals (disclosed or undisclosed) harmless from any loss, cost,
liability, claim, damage, expense (including reasonable attorneys' fees and
disbursements), penalty or fine incurred in connection with or arising from any
injury to Tenant or to any other person or for any damage to, or loss (by theft
or otherwise) of, any of Tenant's property or of the property of any other
person, irrespective of the cause of such injury damage or loss (including the
acts or negligence of any tenant or of any owners or occupants of adjacent or
neighboring property or caused by operations in construction of any private,
public or quasi-public work) unless due to the negligence of Landlord or
Landlord's agents without contributory negligence on the part of Tenant, its
employees, agents, contractors, invitees or licensees, it being understood that
no property, other than such as might normally be brought upon or kept in the
Premises as incidental to the reasonable use of the Premises for the purposes
herein permitted will be brought upon or be kept in the Premises; provided,
however; that even if due to any such negligence of Landlord or Landlord's
agents, Tenant waives, to the full extent permitted by law, any claim for
consequential or punitive damages in connection therewith and Landlord and
Landlord's agents shall not be liable, to the extent of Tenant's insurance
coverage, for any loss or damage to any person or property even if due to the
negligence of Landlord or Landlord's agents. Any Building employee to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither Landlord nor
Landlord's agents shall be liable for any loss of or damage to any such property
by theft or otherwise.
B. Neither any (a) performance by Landlord, Tenant or others of any
repairs, alterations or improvements in or to the Real Property, Building or
Premises, (b) failure of Landlord or others to make any such repairs or
improvements, (c) damage to the Building, Premises or Tenant's property in the
Premises, (d) any injury to any persons, caused by other tenants or persons in
the Building, or by operations in the construction of any private, public or
quasi-public work, or by any other cause, (e) latent defect in the Building or
Premises, nor (f) inconvenience or annoyance to Tenant or injury to or
interruption of Tenant's business by reason of any of the events or occurrences
referred to in the foregoing subdivisions (a) through (f) shall impose any
liability on Landlord or Landlord's agent to Tenant, other than such liability
as may be required or imposed upon Landlord by law for Landlord's negligence or
the negligence of Landlord's agents in the operation or maintenance of the
Building or for the breach by Landlord of any express covenant of this lease on
Landlord's part to be performed or observed. No representation, guaranty or
warranty is made or assurance given that any communications or security systems,
devices or procedures of the Building, if any, will be effective to prevent
injury to Tenant or any other person or damage to, or loss (by theft or
otherwise) of, any of Tenant's property or of the property of any other person,
and Landlord reserves the right to discontinue or modify at any time such
communications or security Systems or procedures without liability to Tenant.
C. Tenant shall pay to Landlord as Additional Rent, within ten (10)
days following rendition by Landlord to Tenant of bills or statements therefor,
sums equal to all losses, costs, liabilities, claims, damages, fines, penalties
and expenses referred to in the indemnification contained in Article 8 hereof.
D. Notwithstanding anything to the contrary contained herein, Tenant
shall look only to Landlord's estate in the Building (or the proceeds thereof)
for the satisfaction of Tenant's remedies for the collection of a judgment (or
other judicial process) requiring the payment of money by Landlord in the event
of any default by Landlord hereunder, and no other property or assets of
Landlord or its agents, directors, officers, shareholders, partners or
principals (disclosed or undisclosed) shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies under or
with respect to this lease, the relationship of Landlord and Tenant hereunder or
under law or Tenant's use or occupancy of the Premises or any other liability of
Landlord to Tenant.
4
E. The provisions of this Article shall survive the expiration or
sooner termination of this lease.
INSURANCE:
42. Tenant, at its expense, shall maintain at all times during the Term (a) "all
risk" property insurance covering Tenant's property and improvements and
betterments to a limit of not less than the full replacement cost thereof and
(b) comprehensive general liability insurance covering bodily injury, personal
injury and property damage, with such limits as may reasonably be requested by
Landlord from time to time, but not less than $1,000,000 in respect to bodily
injury or death arising out of any one occurrence and $1,000,000 for property
damage. The policy or policies evidencing such insurance shall include Landlord
and such parties as Landlord shall designate as a named additional insured. The
limits of such insurance shall not limit the liability of Tenant. All policies
required to be maintained pursuant to the provisions of this lease shall be
issued by an insurance company or companies having a Best's rating (or any
successor publication of comparable standing) of at least A/XIV and authorized
to do business in the State of New York. All policies required to be maintained
pursuant to the provisions of this lease shall have a written undertaking from
the insurer to notify all insureds thereunder at least sixty (60) days prior to
cancellation thereof. Upon the execution of this lease, Tenant shall deliver to
Landlord and any additional insureds such fully paid for policies or
certificates of insurance evidencing any such policy. Tenant shall procure,
maintain and place such insurance and pay all premiums and charges therefor and
upon failure to do so Landlord may, but shall not be obligated to, procure,
maintain and place such insurance or make such payments, and in such event the
Tenant agrees to pay the amount thereof, plus interest at the rate of two (2%)
percent above the rate announced from time to time by Citibank, N.A. New York)
as its base corporate lending rate, to Landlord on demand and said sum shall be
in each instance collectible as Additional Rent on the first day of the month
following the date of payment by Landlord. During such times as Tenant shall be
performing any alteration, installation, addition or improvement to the Premises
(collectively, "Alterations"), Tenant shall carry or cause to be carried (and
shall provide Landlord with evidence thereof) (i) worker's compensation
insurance covering all persons employed in connection with the Alteration in
statutory limits, (ii) broad form comprehensive general liability insurance
including a completed operations endorsement with limits of liability of not
less than $1,000,000 combined single limit bodily injury and property damage,
(iii) builder's risk insurance, completed value non-reporting form, covering all
physical loss, in an amount reasonably satisfactory to Landlord, (iv) an
umbrella policy in amounts required by Landlord, and (v) such other insurance,
and in such amounts as Landlord deems reasonably necessary to protect Landlord's
interest in the Premises and the Building from any act or omission of Tenant's
contractors and subcontractors. Tenant's failure to provide and keep in force
the aforementioned insurance shall be regarded as a material default hereunder
entitling Landlord to exercise any or all of the remedies provided in this lease
in the event of Tenant's default.
COMPLIANCE WITH LOCAL LAW NO. 5:
43. Notwithstanding anything contained to the contrary elsewhere in this lease,
Tenant acknowledges with respect to any alterations made by Tenant within the
demised premises either by Tenant, in accordance with other applicable
provisions of this lease, or performed by Landlord on Tenant's behalf or
pursuant to a work letter agreement executed between the parties at the time of
entering this lease, that it will be Tenant's responsibility and obligation to
comply with all fire safety requirements and controls imposed by Local Law 5 of
the City of New York, as same now exists or may hereafter be amended, as well as
with any and all other laws, rules and obligations of the City of New York or of
any governmental agency or department thereof having jurisdiction with respect
to the demised premises. The performance of any of the foregoing Local Law 5
required work, installations and alterations shall be performed by Tenant in
accordance with all applicable provision of this lease (including but not
limited to Articles 3 and 6 thereof) and of law.
44. [INTENTIONALLY OMITTED.]
5
MISCELLANEOUS PROVISIONS:
45. A. If any of the provisions of this lease, or the application thereof to any
person or circumstance, shall, to any extent, be invalid or unenforceable, the
remainder of this lease, or the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and every provision of this
lease shall be valid and enforceable to the fullest extent permitted by law.
B. (a) Tenant hereby indemnifies and agrees to hold Landlord harmless
from and against any loss, cost, liability, claim, damage, fine, penalty and
expense (including reasonable attorneys' fees and disbursements) resulting from
delay by Tenant in surrendering the Premises upon the termination of this lease
as provided in Article 22, including any claims made by any succeeding tenant or
prospective tenant founded upon such delay.
(b) In the event Tenant remains in possession of the Premises after
the expiration or sooner termination of this lease without the execution of a
new lease, Landlord shall be entitled to immediately reenter the Premises and
dispossess Tenant. In the event of any holding over by Tenant, Tenant shall pay
as holdover rental for each month of the holdover tenancy an amount equal to two
(2) times the Fixed Rent and Additional Rent payable during the last month of
the Term, subject to all of the other terms of this lease insofar as the same
are applicable to such holdover tenancy. The acceptance of any rent paid by
Tenant pursuant to this Article shall in no event preclude Landlord from
commencing and prosecuting a holdover or summary eviction proceeding and the
provisions of this Article shall be deemed be an "agreement expressly providing
otherwise" within the meaning of Section 232-c of the Real Property Law of the
State of New York and any successor or similar law of like import. Nothing
contained in this Article shall (i) imply any right of Tenant to remain in the
Premises after the expiration or sooner termination of this lease without the
execution of a new lease, (ii) imply any obligation of Landlord to grant a new
lease or (iii) be construed to limit any right or remedy that Landlord has
against Tenant as a holdover tenant or trespasser.
C. Each of the persons executing this lease on behalf of Tenant and
Landlord hereby represents and warrants that he/she has been duly authorized to
execute this lease for and on behalf of Tenant or Landlord, as the case may be.
D. Notwithstanding the provisions of Article 3 no approval of plans or
specifications by Landlord or consent by Landlord allowing Tenant to make any
alterations, installations, additions or improvements in the Premises at any
time during the Term shall in any way be deemed to be an agreement, a
representation or warranty by Landlord that the contemplated alterations,
installations, additions or improvements comply with any legal requirements or
any certificate of occupancy for the Building nor shall it be deemed to be a
waiver by Landlord of such compliance by Tenant or of any of the terms of this
lease. Notice is hereby given that neither Landlord, Landlord's agent, nor any
mortgagee of the Building shall be liable for any labor or materials furnished
or to be furnished to Tenant upon credit, and that no mechanic's or other lien
for such labor or material shall attach to or affect any estate or interest of
Landlord or any such mortgagee in and to the Premises or the Building. Tenant
shall keep records of all alterations, installations, additions or improvements
costing in excess of $10,000 and the cost thereof, and within fifteen (15) days
after demand by Landlord, Tenant shall furnish to Landlord copies of such
records if Landlord shall request the same.
E. If Tenant is a partnership (or is comprised of two (2) or more
persons, individually, or as joint venturers or as co-partners of a partnership)
or if Tenant's interest in this lease shall be assigned to a partnership (or to
two (2) or more persons, individually, or as joint venturers or as co-partners
of a partnership) (any such partnership and such persons are referred to in this
Article as "Partnership Tenant"), the following provisions shall apply to such
Partnership Tenant:
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(a) the liability of each of the parties comprising Partnership Tenant shall be
joint and several, and (b) each of the parties comprising Partnership Tenant
hereby consents in advance to and agrees to be bound by, any modifications,
termination, discharge or surrender of this lease which may hereafter be made
and by any notices, demands, requests or other communications which may
hereafter be given, by Partnership Tenant or by any of the parties comprising
Partnership Tenant, and (c) any bills, statements, notices, demands, requests or
other communications given or rendered to Partnership Tenant or to any of the
parties comprising Partnership Tenant shall be deemed given or rendered to
Partnership Tenant or to any of the parties comprising Partnership Tenant and
shall be binding upon Partnership Tenant and all parties, and (d) if Partnership
Tenant shall admit new partners, all such new partners shall, by their admission
to Partnership Tenant, be deemed to have assumed performance of all of the
terms, covenants and conditions of this lease on Tenant's part to be observed
and performed and (e) Partnership Tenant shall give prompt notice to Landlord of
the admission of any such new partners, and upon demand of Landlord, shall cause
each such new partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new Partner shall assume performance
of all of the terms, covenants and conditions of this lease on Tenant's part to
be observed and performed (but neither Landlord's failure to request any such
agreement nor the failure of any such new partner to execute or deliver any such
agreement nor the failure of any such new partner to execute or deliver any such
agreement to Landlord shall vitiate the provisions of Subdivision (d) of this
Article E).
F. All exhibits to this lease and any and all rider provisions attached
to this lease are hereby incorporated into this lease. If any provision
contained in any rider hereto is inconsistent or in conflict with any printed
provision of this lease, the provision contained in such rider shall supersede
said printed provision and shall control.
G. Wherever it is specifically provided in this lease that a party's
consent is not to be unreasonably withheld, a response to a request for such
consent shall also not be unreasonably delayed. If either Landlord or Tenant
considers that the other has unreasonably withheld or delayed a consent, it
shall so notify the other party within ten (10) days after receipt of notice of
denial of the requested consent or, in case notice of denial is not received
within twenty (20) days after making its request for the consent, then within
thirty (30) days after making such request. Tenant hereby waives any claim
against Landlord which it may have based upon any assertion that Landlord has
unreasonably withheld or unreasonably delayed any such consent, and Tenant
agrees that its sole remedy shall be an action or proceeding to enforce any such
provision or for specific performance, injunction or declaratory judgment. In
the event of such a determination, the requested consent shall be deemed to have
been granted; however, Landlord shall have no liability to Tenant for its
refusal or failure to give such consent. The sole remedy for Landlord's
unreasonably withholding or delaying of consent shall be as provided in this
Article.
H. Landlord hereby covenants and agrees that Landlord shall, at its
sole cost and expense, cause the improvements which are set forth on Exhibit C
attached hereto to be made in and to the Premises, using materials of Building -
standard quality, color and design ("Landlord's Work"). Landlord shall not be
required to perform any work to the Premises, except as provided in this Article
45(H). Landlord shall use reasonable efforts (without being obligated to employ
overtime labor or to incur any extraordinary expenses in connection therewith)
to complete Landlord's Work in a timely manner. Tenant acknowledges, however,
that the performance by Landlord of Landlord's Work may disturb Tenant's quiet
enjoyment of, and access to, the Premises. Tenant hereby accepts such conditions
as modifications and limitations on its right to use the Premises and hereby
waives any and all claims for damages to its property or its business which may
be caused by the effects of any such work. Except for Landlord's Work, Tenant
shall accept the Premises in its present "AS IS" condition.
I. Landlord shall notify Tenant of the anticipated date of substantial
completion of Landlord's Work ("Substantial Completion Date") in a notice given
at least five (5) business days prior to the Substantial Completion Date stated
therein. The phrase "substantial completion" shall mean that, with the exception
of punch-list items which would not
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prevent the use or occupancy of the Premises for the permitted uses, Landlord's
Work shall have been completed in accordance with the final plans and all
mechanical systems serving or affecting the Premises shall then be in working
order. Landlord and Tenant shall thereupon set a mutually convenient time for
Tenant, Tenant's architect and engineer, Landlord and Landlord's contractor to
inspect the Premises and Landlord's Work, at which time Tenant's architects and
engineers shall prepare and submit to Landlord a punch list of items to be
completed. Upon completion of the inspection, Tenant shall acknowledge in
writing that substantial completion of Landlord's Work has occurred, subject to
any punch list items to be completed. Landlord shall endeavor to complete the
punch list items within thirty (30) days thereafter. In the event Tenant shall
fail to confer with Landlord with respect to the substantial completion of
Landlord's Work within five (5) days of Landlord's notice setting forth the
Substantial Completion Date, Landlord's Work shall be deemed completed and
satisfactory in all respects and the Commencement Date shall be deemed to have
occurred on the date set forth in Landlord's notice as the Substantial
Completion Date. In the event of any dispute, a certificate of Landlord's
architect or engineer to the effect that the Premises are substantially complete
and in the condition required by this Lease shall control.
J. Notices given by counsel for Landlord or Tenant which are given in
accordance with Article 28 of this lease shall be deemed valid notices.
K. If and to the extent that there is a conflict between any
provision contained in the printed portion of the lease to which this Rider is
attached and the provisions contained in this Rider, then the provision
contained in this Rider shall govern and be controlling, to the extent necessary
to resolve such conflict.
L. Tenant shall, throughout the term of this Lease, maintain, repair,
service and replace when necessary, all doors leading into and out of the
Demised Premises and all hardware appurtenant thereto, including, but not
limited to, locks, hinges, silencers, door stops, door jams, door closers,
latches, light bulbs, door frames, thresholds and door knobs. Landlord shall
have no liability or obligation whatsoever regarding the maintenance, repair,
service and replacement of the foregoing.
M. Tenant shall not use, occupy, suffer or permit the Demised Premises,
or any part thereof, to be used in any manner, or suffer or permit any thing to
be brought into or kept therein, which would, in Landlord's reasonable judgment:
(a) violate any of the provisions of any recorded mortgage to which this Lease
is subject; (b) violate any legal requirement or insurance requirement of
Landlord; (c) make void or voidable any insurance policy then in force with
respect to the Demised Premises, and/or the Building; (d) cause or be likely to
cause, injury or damage to the Building; (e) constitute a public or private
nuisance; (f) violate any certificate of occupancy which may now be issued or
hereinafter be obtained for the Demised Premises and/or the Building; (g) emit
objectionable noise which can be detected outside the Demised Premises; (h)
impair or interfere with the effectiveness or accessibility of the Building
equipment or any Building service; (i) impair or interfere with the use of any
area of the Building, or occasion annoyance or inconvenience to Landlord or any
tenant of the Building; and (j) interfere with access to the Building, or the
Demised Premises by fire prevention personnel and/or equipment.
N. All common areas and facilities not located within the Demised
Premises, which Tenant may use, are to be used on a non-exclusive basis, and the
amount of such areas shall not be diminished or eliminated, if doing so would
materially adversely affect Tenant's use of or access to the Premises. Subject
to the preceding sentence, Landlord shall not be subject to liability nor shall
Tenant be entitled to any compensation or diminution, reduction or abatement of
rent, nor shall such diminution or elimination of such areas be deemed
constructive or actual eviction.
O. Tenant shall not: (i) encumber or obstruct or permit to be
encumbered or obstructed any sidewalk, hallway, service elevator, stairway or
passageway in the Building; (ii) have or cause to have brought or delivered from
the street to the Demised Premises any stock, supplies or merchandise in such a
manner as would block the hallways, passageway in the Building, surrounding
sidewalks and street or the entrance to the Building for any period of time;
(iii)
8
permit employees, guests, clients or other persons to congregate, loiter or
assemble in the hallways or about the Demised Premises or the Building; and (iv)
encumber, obstruct, use, or permit any hallway, passageway in the Building,
sidewalk or sidewalk area to be used for the storage, sale, display or
advertisement of any services, stock, supplies or merchandise. In the event that
Tenant fails to comply with this subparagraph 45(O), and in addition to any
other rights the Landlord may have under this Lease and applicable law, Landlord
may immediately, upon three (3) days notice, have any such items removed at
Tenant's expenses and without any liability therefor, and may dispose of such in
the manner that the Landlord, in its sole judgment, deems proper. Landlord shall
have no liability or responsibility for any of the items so removed and this
subparagraph 45(O) shall not confer, nor is to be construed or intended to
confer any rights to any third parties.
P. No payment by Tenant or receipt by Landlord of a lesser amount than
the Rent payable hereunder shall be deemed to be other than a payment on account
of the earliest stipulated Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment for Rent be deemed on
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy provided herein or by law.
BUILDING DIRECTORY
46. At the written request of Tenant, Landlord shall list on the building
directory the name of the Tenant, any trade name under which Tenant has the
right to operate, any other entity permitted to occupy any portion of the
demised premises under term of this lease, and the officer and employees of each
of foregoing entities, provided the number of name so listed does not exceed
Tenant's Proportionate Share (as defined in the Escalation Rider attached
hereto) of the capacity of such directory. If requested by Tenant, Landlord may
(but shall not be required to) list the name of Tenant's subsidiaries and
affiliates, however, the listing of any name other than that of Tenant shall
neither grant such party or entity any right or interest in this lease or in the
demised premises nor constitute Landlord's consent to any assignment or sublease
to, or occupancy of the demised premises by such party or entity. Except for the
name of Tenant, any such listing may be terminated by Landlord, at any time,
without notice.
TRANSMITTAL OF LEASE
47. The submission of this document for examination and review does not
constitute an option, an offer to lease space, or an agreement to lease space.
This document shall have no binding effect on the parties hereto unless and
until executed and delivered by both Landlord and Tenant and will be effective
only upon Landlord's execution and delivery of same. Except as expressly
contained herein, (i) neither Landlord nor Landlord's agent or attorneys have
made representations, warranties or promises with respect to the Premises or
this Lease; and (ii) Landlord shall have no obligation to do any work in and to
the Premises in order to prepare the Premises for occupancy and use by Tenant.
NON-DISTURBANCE
48. Landlord shall request and use reasonable efforts to obtain a
non-disturbance agreement from the holder of any mortgage now or hereafter
encumbering the Building or from the lessor under any superior lease now or
hereafter affecting the Building in the standard form of any such holder or
lessor which shall provide in substance that so long as Tenant is not in default
under this Lease beyond any applicable notice and grace period (a) Tenant shall
not be joined as a party defendant (unless required by applicable law) (i) in
any action or proceeding which may be instituted or taken by any lessor under a
superior lease for the purpose of terminating the superior lease by reason of
any default thereunder or (ii) in any foreclosure action or proceeding which may
be instituted by the holder of a mortgage, and (b) Tenant shall not be evicted
from the Premises, nor shall Tenant's leasehold estate or right to possession of
the Premises be terminated or disturbed by reason of
9
any default under any superior lease or mortgage. Any non-disturbance agreement
may also provide that Tenant will, at the option of the holder of any mortgage
or the lessor under any superior lease, either (i) attorn to such holder or
lessor and perform for its benefit all the terms, covenants and conditions to be
performed by Tenant under this Lease with the same force and effect as if the
lessor or holder were the Landlord originally named in this Lease or (ii) enter
into a new lease with the lessor under the superior lease or the holder of any
mortgage or their respective successors or assigns for the balance of the Term
on the same terms and conditions as contained in this Lease. Landlord's failure
to obtain a non-disturbance agreement shall not relieve or release Tenant from
any of its obligations under this Lease.
ESTOPPEL CERTIFICATE
49. At any time and from time to time upon written request by Landlord, Tenant
hereby agrees to deliver within ten (10) days after request, a certificate to
Landlord or to any present or proposed (a) mortgagee, (b) lessor under a
superior lease, or (c) purchaser designated by Landlord, in the form supplied,
certifying: (1) that Tenant has accepted the Premises (or, if Tenant has not
done so, that Tenant has not accepted the Premises, and specifying the reasons
therefor); (2) that this Lease is in full force and effect and has not been
modified (or if modified, setting forth all modifications), or, if this Lease is
not in full force and effect, the certificate shall so specify the reasons
therefor; (3) the Commencement Date, the Expiration Date and the terms of any
extension options of Tenant, if any; (4) the date to which the Fixed Rent and
Additional Rent have been paid under this Lease and the amount thereof then
payable; (5) the amount of the Security Deposit and prepaid rent, if any, being
held by Landlord; (6) whether there are then any existing defaults by Landlord
in the performance of its obligations under this Lease, and, if there are any
such defaults, specifying the nature and extent thereof; (7) that no notice has
been received by Tenant of any default under this Lease which has not been
cured, except as to defaults specified in the certificate; (8) the capacity of
the person executing such certificate, and that such person is duly authorized
to execute the same on behalf of Tenant; and (9) any other information
reasonably requested by Landlord or its present or proposed purchaser, the
holder of any mortgage, or lessor under a superior lease.
ATTORNEYS' FEES
50. In the event of any action or proceeding brought by Landlord against Tenant
under this Lease, Landlord shall be entitled to recover court costs and the fees
and disbursements of its attorneys in such action or proceeding (whether at the
administrative, trial or appellate levels) in such amount as the court or
administrative body may judge reasonable. Landlord shall also be entitled to
recover attorneys' fees and disbursements incurred in connection with a Tenant
default hereunder which does not result in the commencement of any action or
proceeding.
LOWER MANHATTAN REAL PROPERTY TAX ABATEMENT
51. (A) Pursuant to the provisions of Title 4 of Article 4 of the Real Property
Tax Law of the State of New York (the "Tax Law"), Landlord hereby notifies
Tenant that Tenant may be entitled to receive certain tax abatements and, if
such be the case, Tenant shall be entitled to receive the benefits thereof which
shall reduce in the manner set forth in this Article the Fixed Rent payable
hereunder.
(B) Provided Tenant provides Landlord with any and all applications
Landlord is required to file, whether concurrently or not, with Tenant, Landlord
and Tenant shall file an application for a certificate of abatement pursuant to
Section 499-d of the Tax Law with the Department of Finance of the City of New
York (the "Finance Department") promptly after the execution and delivery
hereof, but in no event later than sixty (60) days following the Commencement
Date days before the date Tenant applies for building permits with the
department of buildings. Such application shall comply with the requirements of
Section 499-d of the Tax Law, if and to the extent applicable. Any charges
imposed by
10
the Finance Department to defray expenses in administering the abatement program
shall be promptly paid by Tenant. Tenant shall prepare and submit all annual
certificates of continuing eligibility required under Section 499-f of the Tax
Law and Landlord shall join all such annual certificates and shall cooperate
with Tenant to the completion thereof. Landlord covenants not to cause the
revocation of any abatements otherwise due under this Article by reason of
Landlord's failure to comply with Section 499-f(4) of the Tax Law, so long as
such compliance does not cause landlord to incur any expenses.
(C) For purposes of this Article, "Tenant's Percentage Share," which
shall have the meaning accorded in Section 499-a(28) of the Tax Law, shall mean
3.61%.
(D) In the event that the application for abatement of the real
property taxes is granted with respect to the Premises, the Fixed Rent payable
hereunder shall be proportionately reduced by the amount of such abatement
granted pursuant to such application and each monthly installment thereof shall
be ratably reduced to amortize such abatement over the entire applicable lease
year. However, the term "Taxes" as defined in the escalation rider attached
hereto, shall be calculated without regard to such abatement.
(E) In the event that such abatement is revoked, unless due to
Landlord's unwarranted voluntary act, the Fixed Rent shall no longer be reduced
to reflect such abatement, retroactive to the date of such revocation and Tenant
shall pay Landlord any interest and penalties charged by the City of New York on
any taxes payable as a result of such revocation.
(F) and Tenant agrees to take such further actions as may be reasonably
necessary, or appropriate to implement the intention and purpose of this
Article.
THE FOLLOWING ADDITIONAL RIDERS ARE HEREBY ATTACHED HERETO AND MADE A PART
HEREOF:
1. Escalation Rider
2. Electricity Rider
3. Assignment and Subletting Rider
LANDLORD: 130 XXXXXXX LLC TENANT: WALL STREET STRATEGIES, INC.
/S/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxxx
------------------------ ------------------------
XXXXXX XXXXXX, Member Name: Xxxxxxx Xxxxx
Title:
11
