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EXHIBIT 10.37
STANDARD FORM OF LOFT LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
Agreement of Lease, made as of this 31st day of December, 1997, between REALTIES
1430, a New York general partnership, having an office at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000 party of the first part hereinafter referred to as OWNER, and
CARLY HOLDING, INC., a New York corporation, having an office at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 party of the second part, hereinafter referred to as
TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
Suite 1100, as shown on the plan attached hereto in the building known as 0000
Xxxxxxxx in the Borough of MANHATTAN, City of New York, for the term of FIVE (5)
YEARS and ONE (1) MONTH (or until such term shall sooner cease and expire as
hereinafter provided) to commence on the 1st day of February nineteen hundred
and ninety-eight, and to end on the 28th day of February two thousand and three
and both dates inclusive, at an annual rental rate of $22,000.00 for the period
February 1, 1998 (see Article 67 with regard to the Reduced Rent Period (i.e.
February 1, 1998 through February 28, 1998)) through February 28, 2003, the
expiration date of the term of this lease, which Tenant agrees to pay in lawful
money of the United States which shall be legal tender in payment of all debts
and dues, public and private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said term, at the
office of Owner or such other place as Owner may designate, without any set off
or deduction whatsoever, except that Tenant shall pay the first _______ monthly
installment(s) on the execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
RENT:
1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY:
2. Tenant shall use and occupy demised premises for administrative and
executive
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offices, payroll factor, no on-premises check cashing services permitted to the
general public.
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, Tenant, at Tenant's
expense, may make alterations, installations, additions or improvements which
are nonstructural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises using
contractors or mechanics first approved in each instance by Owner. Tenant shall,
at its expense, before making any alterations, additions, installations or
improvements obtain all permits, approval and certificates required by any
governmental or quasi-governmental bodies and (upon completion) certificates of
final approval thereof and shall deliver promptly duplicates of all such
permits, approval thereof and shall deliver promptly duplicates of all such
permits approvals and certificates to Owner. Tenant agrees to carry and will
cause Tenant's contractors and sub-contractors to carry such xxxxxxx'x
compensation, general liability, personal and property damage insurance as Owner
may require. If any mechanic's lien is filed against the demised premises, or
the building of which the same forms a part, for work claimed to have been done
for, or materials furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within thirty days thereafter,
at Tenant's expense, by payment or filing the bond required by law or otherwise.
All fixtures and all paneling, partitions, railings and like installations,
installed in the premises at any time, either by Tenant or by Owner on Tenant's
behalf, shall, upon installation, become the property of Owner and shall remain
upon and be surrendered with the demised premises unless Owner, by notice to
Tenant no later than twenty days prior to the date fixed 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 demised premises by
Tenant prior to the expiration of the lease, at Tenant's expense. Nothing in
this Article shall be construed to give Owner title to or to prevent Tenant's
removal of trade fixtures, moveable office furniture and equipment, but upon
removal of any such from the premises or upon removal of other installations as
may be required by Owner, Tenant shall immediately and at its expense, repair
and restore the premises to the condition existing prior to installation and
repair any damage to the demised premises or the building due to such removal.
All property permitted or required to be removed by Tenant at the end of the
term remaining in the premises after Tenant's removal shall be deemed abandoned
and may, at the election of Owner, either be retained as Owner's property or
removed from the premises by Owner, at Tenant's expense.
REPAIRS:
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4. Owner shall maintain and repair the exterior of and the public
portions of the building. Tenant shall, throughout the term of this lease, take
good care of the demised premises including the bathrooms and lavatory
facilities (if the demised premises encompass the entire
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floor of the building)and the windows and window frames and, the fixtures and
appurtenances therein and at Tenant's sole cost and expense promptly make all
repairs thereto and to the building, whether structural or non-structural in
nature, caused by or resulting from the carelessness, omission, neglect or
improper conduct of Tenant, Tenant's servants, employees, invitees, or
licensees, and whether or not arising from such Tenant conduct or omission, when
required by other provisions of this lease, including Article 6. Tenant shall
also repair all damage to the building and the demised premises caused by the
moving of Tenant's fixtures, furniture or equipment. All the aforesaid repairs
shall be of quality or class equal to the original work or construction. If
Tenant fails, after ten days notice, to proceed with due diligence to make
repairs required to be made by Tenant, the same may be made by the Owner at the
expense of Tenant, and the expenses thereof incurred by Owner shall be
collectible, as additional rent, after rendition of a xxxx or statement
therefor. If the demised premises be or become infested with vermin, Tenant
shall, at its expense, cause the same to be exterminated. Tenant shall give
Owner prompt notice of any defective condition in any plumbing, heating system
or electrical lines located in the demised premises and following such notice,
Owner shall remedy the condition with due diligence, but at the expense of
Tenant, if repairs are necessitated by damage or injury attributable to Tenant,
Tenant's servants, agents, employees, invitees or licensees as aforesaid. Except
as specifically provided in Article 9 or elsewhere in this lease, there shall be
no allowance to the Tenant for a diminution of rental value and no liability on
the part of Owner by reason of inconvenience, annoyance or injury to business
arising form Owner, Tenant or others making or failing to make any repairs,
alterations, additions or improvements in or to any portion of the building or
the demised premises or in and to the fixtures, appurtenances or equipment
thereof. It is specifically agreed that Tenant shall not be entitled to any set
off 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 any action for
damages for breach of contract. The provisions of this Article 4 with respect to
the making of repairs shall not apply in the case of fire or other casualty with
regard to which Article 9 hereof shall apply.
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 New York State Labor Law or any other applicable law or of
the Rules of the Board of Standards and Appeals, or of any other Board or body
having or asserting jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE:
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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 shall, at Tenant's sole cost and
expense, promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer
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pursuant to law, and all orders, rules and regulations of the New York Board of
Fire Underwriters, or the Insurance Services Office, or any similar body which
shall impose any violation, order or duty upon Owner or Tenant with respect to
the demised premises, whether or not arising out of Tenant's use or manner of
use thereof, or, with respect to the building, if arising out of Tenant's use or
manner of use of the demised premises of the building (including the use
permitted under the lease). Except as provided in Article 30 hereof, 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 shall not do or permit any act or
thing to be done in or to the demised premises which is contrary to law, or
which will invalidate or be in conflict with public liability, fire or other
policies of insurance at any time carried by or for the benefit of Owner. Tenant
shall not keep anything in the demised premises except as now or hereafter
permitted by the Fire Department, Board of Fire Underwriters, Fire Insurance
Rating Organization and other authority having jurisdiction, and then only in
such manner and such quantity so as not to increase the rate for fire insurance
applicable to the building, nor use the premises in a manner which will increase
the insurance rate for the building or any property located therein over that in
effect prior to the commencement of Tenant's occupancy. If by reason of failure
to comply with the foregoing the fire insurance rate shall, at the beginning of
this lease or at any time thereafter, be higher than it otherwise would be, then
Tenant shall reimburse Owner, as additional rent hereunder, for that portion of
all fire insurance premiums thereafter paid by Owner which shall have been
charged because of such failure by Tenant. In any action or proceeding wherein
Owner and Tenant are parties, a schedule or "make-up" or rate for the building
or demised premises issued by a body making fire insurance rates applicable to
said premises shall be conclusive evidence of the facts therein stated and of
the several items and charges in the fire insurance rates then applicable to
said premises. Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot area which it was designed to
carry and which is allowed by law. Owner reserves the right to prescribe the
weight and position of all safes, business machines and mechanical equipment.
Such installations shall be placed and maintained by Tenant, at Tenant's
expense, in settings sufficient, in Owner's judgement, to absorb and prevent
vibration, noise and annoyance.
SUBORDINATION:
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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, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, 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.
TENANT'S LIABILITY INSURANCE PROPERTY LOSS, DAMAGE, 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 shall not be liable for any damage caused by
other tenants or persons in, upon or about said building or caused by operations
in connection of any private, public or quasi public work. If at any time any
windows of the demised premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to Owner's own acts, Owner shall to
be liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefore 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, 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, of
any covenant or condition of this lease, or the carelessness, negligence or
improper conduct of the Tenant, Tenant's agents, contractors, employees,
invitees or licensees. Tenant's liability under this lease extends to the acts
and omissions of any 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 re-occupied in part by
Tenant then rent shall be apportioned as provided 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 rebuild it,
then, in any of such events, Owner may elect to terminate this lease by written
notice to Tenant, given within 90 days after such fire or
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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 Owner's rights and remedies
against Tenant under the lease provisions in effect prior to such termination,
and any rent owing shall be paid up to such date and any payments of rent made
by Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Owner shall 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 movable equipment, furniture, and
other property. Tenant's liability to rent shall resume five (5) days after
written notice from Owner that the premises are substantially ready for Tenant's
occupancy. (e) Nothing contained herein above 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 releasor's 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 benefitting 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 waivers 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. Rider to be added if necessary.
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
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Tenant shall have no claim for the value of any unexpired term of said lease.
Tenant shall have the right to make an independent claim to the condemning
authority for the value of 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 fixtures and equipment at the end of the
term and provided further such claim does not reduce Owner's award.
ASSIGNMENT, MORTGAGE, ETC.:
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11. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used by others, without the prior written consent of 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 collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, undertenant 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 current shall not exceed the
capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in 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 or to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to any portion of the building or which Owner may elect to perform in
the premises after Tenant's failure to make repairs or perform any work which
Tenant is obligated to perform under this lease, or for the purpose of complying
with laws, regulations and other directions of governmental authorities. Tenant
shall permit Owner to use and maintain
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and replace pipes and conduits in and through the demised premises and to erect
new pipes and conduits therein provided, wherever possible, they are within
walls or otherwise concealed. Owner may, during the progress of any work in the
demised premises, take all necessary materials and equipment into said premises
without the same constituting an eviction nor shall the Tenant be entitled to
any abatement of rent while such work is in progress nor to any damages by
reason of loss or interruption of business or otherwise. Throughout the term
hereof Owner shall have the right to enter the demised premises at reasonable
hours for the purpose of showing the same to prospective purchasers or
mortgagees of the building, and during the last six months of the term for the
purpose of showing the same to prospective tenants and may, during said six
months period, place upon the demised premises the usual notices "To Let" and
"For Sale" which notices Tenant shall permit to remain thereon without
molestation. If Tenant is not present to open and permit an entry into the
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 obligation 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 sketch, blue print or plan, or anything
contained elsewhere in this lease to the contrary notwithstanding. Owner makes
no representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
OCCUPANCY:
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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
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not of record. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business, Tenant shall be responsible for
and shall procure and maintain such license or permit.
BANKRUPTCY:
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16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be canceled by Owner by sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events: (1) the commencement of a case in bankruptcy or under
the laws of any state naming Tenant as the debtor; or (2) the making by Tenant
of an assignment or any other arrangement for the benefit of creditors under any
state statute. Neither Tenant nor any person claiming through or under Tenant,
or by reason of any statute or order of court, shall thereafter be entitled to
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 stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rental reserved hereunder for the unexpired portion of
the term demised and the fair and reasonable rental value of the demised
premises for the same period. In the computation of such damages the difference
between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the demised premises for
the period for which such installment was payable shall be discounted to the
date of termination at the rate of four percent (4%) per annum. If such premises
or any part thereof be relet 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
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. (l) If Tenant defaults in fulfilling any of the covenants of this
lease other than the covenants for the payment of rent or additional rent; or if
the demised premises becomes vacant or deserted "or if this lease be rejected
under Section 235 of Title 11 of the U.S. Code (bankruptcy code);" or if any
execution or attachment shall be issued against Tenant or any of Tenant's
property whereupon the demised premises shall be taken or occupied by someone
other
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than Tenant; or if Tenant shall make default with respect to any other lease
between Owner and Tenant; or if Tenant shall have failed, after five (5) days
written notice, to redeposit with Owner any portion of the security deposited
hereunder which Owner has applied to the payment of any rent and additional rent
due and payable hereunder or failed to move into or take possession of the
premises within thirty (30) days after the commencement of the term of this
lease, of which fact Owner shall be the sole judge; then in any one or more of
such events, upon Owner serving a written 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 during 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 this lease and the term thereunder
shall end and expire as fully and as 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 then quit and
surrender the demised premises to Owner but Tenant shall remain liable as
hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been
given, and the 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 hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the date fixed as the commencement
of any renewal or extension of this lease, 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, and additional rent, shall
become due thereupon and be paid upon to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the premises or any part or parts
thereof, either in the name of Owner or otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this lease, (c) Tenant or
the legal representatives of Tenant shall also pay Owner as liquidated damages
for the failure of Tenant to observe and perform said Tenant's covenants herein
contained, any deficiency between the rent hereby reserved and or covenanted to
be paid and the net amount, if any, of the rents collected on account of the
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subsequent lease or leases of the demised premises for each month of the
subsequent lease or leases of the demised premises for each month of the period
which would otherwise have constituted the balance of the term of this lease.
The failure of Owner to re-let the premises or any part or parts thereof shall
not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner may incur in connection with re-letting, such as legal expenses,
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.
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 attorney's fees, in instituting,
prosecuting or defending any action or proceedings, 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.
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BUILDING ALTERATIONS AND MANAGEMENT:
------------------------------------
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 Tenant making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
any controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
NO REPRESENTATIONS BY OWNER:
----------------------------
21. Neither Owner nor Owner's agents have made any representations or
promises with respect to the physical condition of the building, the land upon
which it is erected or the demised premises, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the demised
premises or the building except as herein expressly set forth and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this lease. Tenant has inspected the
building and the demised premises and is thoroughly acquainted with their
condition and agrees to take the same "as is" on the date possession is tendered
and acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between Owner
and Tenant and any executory agreement hereafter made shall be ineffective to
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, broom clean, in
good order and condition, ordinary wear and damages which Tenant is not required
to repair as provided elsewhere in this lease excepted, and Tenant shall remove
all its property from the demised premises. Tenant's 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
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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
34 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 if Owner has not completed any work required to be performed by
Owner, or for any other reason, Owner shall not be subject to any liability for
failure to give possession on said date and the validity of the lease shall not
be impaired under such circumstances, nor shall the same be construed in any
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 any work required) until after Owner shall have given
Tenant notice that Owner is able to deliver possession in the 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 page one of this lease.
The provisions of this article are intended to constitute "an express provision
to the contrary" within the meaning of Section 223-a of the New York Real
Property Law.
NO WAIVER:
----------
25. The failure of Owner to seek redress for violation of, or to insist
upon the strict performance of any covenant or condition of this lease or any of
the Rules or Regulations, set forth or hereafter adopted by Owner, shall not
prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Owner of rent with knowledge of the breach of any covenant of this lease shall
not be deemed a waiver of such breach and no provision of this lease shall be
deemed to have been waived by Owner unless such waiver be in writing signed by
Owner. No payment by Tenant or receipt by Owner of a lesser amount than the
monthly rent herein stipulated shall be
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deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement of any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction, and Owner may accept
such check or payment without prejudice to Owner's right to recover the balance
of such rent or pursue any other remedy in this lease provided. All checks
tendered to Owner as and for the rent of the demised premises shall be deemed
payments for the account of Tenant. Acceptance by Owner of rent from anyone
other than Tenant shall not be deemed to operate as an attornment to Owner by
the payor of such rent or as a consent by Owner to an assignment or subletting
by Tenant of the demised premises to such payor, or as a modification of the
provisions of this lease. No act or thing done by Owner or Owner's 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 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 doing so by
reason of strike or labor troubles or any cause whatsoever beyond Owner's sole
control 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, or
other Force Majeure Event.
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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 herein
above given or at such other address as Owner shall designate by written notice.
WATER CHARGES:
--------------
29. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory purposes (of which fact Tenant constitutes Owner
to be the sole judge) Owner may install a water meter and thereby measure
Tenant's water consumption for all purposes. Tenant shall pay Owner for the cost
of the meter and the cost of the installation, thereof and throughout the
duration of Tenant's occupancy Tenant shall keep said meter and installation
equipment in good working order and repair at Tenant's own cost and expense in
default of which Owner may cause such meter and equipment to be replaced or
repaired and collect the cost thereof from Tenant, as additional rent. Tenant
agrees to pay for water consumed, as shown on said meter as and when bills are
rendered, and on default in making such payment Owner may pay such charges and
collect the same from Tenant, as additional rent. Tenant covenants and agrees to
pay, as additional rent, the sewer rent, charge or any other tax, rent, levy or
charge which now or hereafter is assessed, imposed or a lien upon the demised
premises or the realty of which they are part pursuant to law, order or
regulation made or issued in connection with the use, consumption, maintenance
or supply of water, water system or sewage or sewage connection or system. If
the building or the demised premises or any part thereof is supplied with water
through a meter through which water is also supplied to other premises Tenant
shall pay to Owner, as additional rent, on the first day of each month, SEE
RIDER _____% ($ ) of the total meter charges as Tenant's portion. Independently
of and in addition to any of the remedies reserved to Owner herein above or
elsewhere in this lease, Owner may xxx for and collect any monies to be paid by
Tenant or paid by Owner for any of the reasons or purposes herein above set
forth.
SPRINKLERS:
-----------
30. Anything elsewhere in this lease to the contrary notwithstanding,
if the New York Board of Fire Underwriters of the New York Fire Insurance
Exchange or any bureau, department or official of the federal, state or city
government recommend or require the installation of a sprinkler system or that
any changes, modifications, alterations, or additional sprinkler heads or other
equipment be made or supplied in an existing sprinkler system by reason of
Tenant's
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business, or the location of partitions, trade fixtures, or other contents of
the demised premises, or for any other reason, or if any such sprinkler system
installations, modifications, alterations, additional sprinkler heads or other
such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate set by any said Exchange or by any fire insurance company, Tenant shall, at
Tenant's expense, promptly make such sprinkler system installations, changes,
modifications, alterations, and supply additional sprinkler heads or other
equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent the sum
of $ NONE, on the first day of each month during the term of this lease, as
Tenant's portion of the contract price for sprinkler supervisory service.
ELEVATORS, HEAT, CLEANING:
--------------------------
31. 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: (a) provide necessary passenger elevator
facilities on business days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m.
to 1 p.m.; (b) if freight elevator service is provided, same shall be provided
only on regular business days Monday through Friday inclusive, and on those days
only between the hours of 9 a.m. and 12 noon and between 1 p.m. and 5 p.m.; (c)
furnish heat, water and other services supplied by Owner to the demised
premises, when and as required by law, on business days from 8 a.m. to 6 p.m.
and on Saturdays from 8 a.m. to 1 p.m.; (d) clean the public halls and public
portions of the building which are used in common by all tenants. Tenant shall,
at Tenant's expense, keep the demised premises, including the windows, clean and
in order, to the reasonable satisfaction of Owner, and for that purpose shall
employ the person or persons, or corporation approved by Owner. Tenant shall pay
to Owner the cost of removal of any of Tenant's refuse and rubbish from the
building. Bills for the same shall be rendered by Owner to Tenant at such time
as Owner may elect and shall be due and payable hereunder, and the amount of
such bills shall be deemed to be, and be paid as, additional rent. Tenant shall,
however, have the option of independently contracting for the removal of such
rubbish and refuse in the event that Tenant does not wish to have same done by
employees of Owner. Under such circumstances, however, the removal of such
refuse and rubbish by others shall be subject to such rules and regulations as,
in the judgment of Owner, are necessary for the proper operation of the
building. Owner reserves the right to stop service of the heating, elevator,
plumbing and electric systems, when necessary, by reason of accident, or
emergency, or for repairs, alterations, replacements or improvements, in the
judgment of Owner, desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed. If the
building of which the demised premises are a part supplies manually operated
elevator service, Owner may proceed diligently with alterations necessary to
substitute automatic control elevator service without in any way affecting the
obligations of Tenant hereunder.
SECURITY:
---------
32. Tenant has deposited with Owner the sum of $5,499.99* as security
for
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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 reletting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises form a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
*Bears interest - See Rider Par. 63.
CAPTIONS:
---------
33. The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provision thereof.
DEFINITIONS:
------------
34. The term "Owner" as used in this lease means only the owner of the
fee or of the leasehold of the building, or the mortgagee in possession, for the
time being of the land and building (or the owner of a lease of the building or
of the land and building) of which the demised premises form a part, so that in
the event of any sale or sales of said land and building or of said lease, or in
the event of a lease of said building, or of the land and building, the said
Owner shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of Owner hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental rate whether so expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to Owner from Tenant under this lease, in addition to the annual
rental rate.
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The term "business days" as used in this lease, shall exclude Saturdays, Sundays
and all days observed by the State or Federal Government as legal holidays and
those designated as holidays by the applicable building service union employees
service contract or by the applicable Operating Engineers contract with respect
to HVAC service. Wherever it is expressly provided in this lease that consent
shall not be unreasonably withheld, such consent shall not be unreasonably
delayed.
ADJACENT EXCAVATION-SHORING:
----------------------------
35. 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:
----------------------
36. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations annexed hereto and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
Regulation for decision 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 contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against any
other tenant and Owner shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees.
GLASS:
------
37. Owner shall replace, at the expense of the Tenant, any and all
plate and other glass damaged or broken from any cause whatsoever in and about
the demised premises. Owner may insure, and keep insured, at Tenant's expense,
all plate and other glass in the demised premises for and in the name of Owner.
Bills for the premiums therefor shall be rendered by Owner to Tenant at such
times as Owner may elect, and shall be due from, and payable by, Tenant when
rendered, and the amount thereof shall be deemed to be, and be paid, as
additional rent.
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ESTOPPEL CERTIFICATE:
---------------------
38. 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 in full force and effect (or, if there
have been modifications, that the same is in full force and effect as modified
and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
DIRECTORY BOARD LISTING:
------------------------
39. If, at the request of and as accommodation to Tenant, Owner shall
place upon the directory board in the lobby of the building, one or more names
of persons other than Tenant, such directory board listing shall not be
construed as the consent by Owner to an assignment or subletting by Tenant to
such person or persons.
SUCCESSORS AND ASSIGNS:
-----------------------
40. 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 judgement (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.
Space to be filled in or deleted. SEE RIDER PARAGRAPHS 41 - 68 ANNEXED
HERETO AND MADE A PART HEREOF.
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IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
REALTIES 1430
By: Equities 40, L.L.C., its general partner
Witness for Owner: /s/
-----------------------------------------
BY: AUTHORIZED REPRESENTATVE [L.S.]
---------------------------
CARLY HOLDING, INC. [CORP. SEAL]
-----------------------------
Witness for Tenant: /s/
-----------------------------------------
BY: AUTHORIZED REPRESENTATVE [L.S.]
---------------------------
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21
RIDER AGREEMENT ATTACHED TO AND FORMING A PART OF LEASE DATED AS
OF DECEMBER 31, 1997 BETWEEN REALTIES 1430, AS LANDLORD, AND CARLY
HOLDING INC., AS TENANT.
41. RIDER TO ARTICLE 8:
(a) Neither Landlord nor Landlord's agents, employees, contractors,
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 demised
premises, and Tenant shall save and hold Landlord, Landlord's agents, employees,
contractors, officers, directors, shareholders, partners and principals
(disclosed or undisclosed) harmless from any loss, 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 anyone else irrespective of the cause of
such injury, damage or loss unless due to the negligence, carelessness or
improper conduct of Landlord or Landlord's agents, employees, or contractors.
Landlord and Landlord's agents, employees and contractors shall not be liable
for any loss or damage to any person or property, to the extent of Tenant's
insurance coverage, even if due to the negligence, carelessness or improper
misconduct of Landlord or Landlord's agents, employees or contractors. Any
building employee to whom any property shall be entrusted by or on behalf of
Tenant shall be acting as Tenant's agent with respect to such property and
neither Landlord, nor Landlord's agents, employees or contractors, shall be
liable for any loss of or damage to any such property.
(b) Tenant shall obtain and keep in full force and effect during the
term of this lease, at Tenant's own cost and expense, to protect Landlord,
Landlord's agents, contractors, employees, mortgagees and ground lessors, and
Tenant as insureds (i) comprehensive public liability insurance to afford
protection against any and all claims for personal injury, death or property
damage occurring in, upon, adjacent to or connected with the demised premises,
the building and any appurtenances thereto, in an amount of not less than
$1,000,000. for injury or death arising out of any one occurrence, and $100,000.
for damage to property in respect of any one occurrence or in any increased
amount reasonably required by Landlord; and (ii) insurance against loss or
damage by fire (and such other risks and hazards as are insurable under then
available standard forms of fire insurance policies with extended coverage) to
Tenant's property in or about the demised premises for the full insurable value
thereof. Tenant shall carry builder's risk insurance, completed value form,
covering all physical loss, in an amount reasonably satisfactory to, and to
protect the Landlord and such others as Landlord shall designate, at all times
when Tenant is constructing any improvements, alterations, additions or other
installations in or about the demised premises.
(c) All such insurance shall be written in form and substance
satisfactory to Landlord by an insurance company with an A or better rating in
Bests' licensed to do business in New York State. Upon failure of Tenant to
procure, maintain and pay all premiums therefor, Landlord may, at its option, do
so, and Tenant agrees to pay the cost thereof to Landlord as additional rent
under this
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lease. Tenant shall cause to be included in all such insurance policies a
provision to the effect that the same will be non-cancelable and not permitted
to lapse except upon ten (10) days' prior notice to Landlord. On or prior to the
commencement date the original insurance policies or appropriate certificates
shall be deposited with Landlord. Any renewals, replacements or endorsements
thereto shall also be so deposited.
(d) Except to the extent expressly provided in Article 9 (e) , nothing
contained in this lease shall relieve either Landlord or Tenant of any liability
to the other, or to the insurance carrier of the other, which the other may have
under law or the provisions of this lease, by reason of any damage to the
demised premises or the building, as the case may be, by fire or other casualty.
42. RIDER TO ARTICLE 11:
(a) Except as otherwise provided in this Article, neither this lease
nor any part hereof, nor the interest of Tenant in any sublease or the rentals
thereunder, shall be, by operation of law or otherwise, assigned, mortgaged,
pledged, encumbered, or otherwise transferred by Tenant, Tenant's legal
representatives or successors in interest, and neither the demised premises nor
any part thereof nor any of Tenant's property which is part of the realty (the
land and/or the building) in or about the demised premises shall be encumbered
in any manner by reason of any act or omission on the part of Tenant, or anyone
claiming by, under or through Tenant, or shall be sublet, franchised, licensed
or used, occupied or utilized for desk space or for mailing privileges by anyone
other than Tenant, without the prior written consent of Landlord. A transfer of
more than fifty percent (5011) in interest of Tenant (whether such transfer
occurs at one time -or in a series of related transactions and whether of stock,
partnership interest or otherwise) by any party in interest shall be deemed an
assignment of this lease.
(b) Except as otherwise provided in this Article, if this lease be
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 assignment, subletting, occupancy, or collection or
application of rent shall be deemed a waiver of any of the provisions of section
(a) above, or the acceptance of the assignee, subtenant, or occupant as a
tenant, or be deemed to relieve, impair, release, or discharge Tenant of its
obligations fully to perform the terms of this lease on Tenant's part to be
performed. The consent by Landlord to an assignment, transfer, encumbering or
subletting pursuant to any provision of this lease shall not in any way be
deemed consent to any other or further assignment, transfer, encumbering or
subletting. References in this lease to use or occupancy by anyone other than
Tenant shall include without limitation subtenants, licensees, franchisees and
others claiming by, through or under Tenant or under any subtenant, immediately
or remotely. 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, or
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be deemed to constitute, or serve as a substitute for, any consent of Landlord
required under this Article, and it is understood that any such listing shall
constitute a privilege extended by Landlord, revocable at Landlord's will by
notice to Tenant. Tenant agrees to pay to Landlord reasonable attorneys' fees
and disbursements incurred by Landlord in connection with any proposed
assignment or sublease, including the costs of making investigations as to the
acceptability of a proposed subtenant or assignee.
(c) Notwithstanding the provisions of sections (a) and (b) to the
contrary, provided Tenant is not in default in any of Tenant's obligations under
this lease, Tenant may, with Landlord's prior written consent, which shall not
be unreasonably withheld, sublet all or part of the demised premises for the
unexpired balance of the term of this lease less one (1) day to any corporation
or other business entity which controls, is controlled by or is under common
control with Tenant (herein referred to as a "related corporation") for any of
the purposes permitted to Tenant, subject, however, to compliance with Tenant's
obligations under this lease. For the purposes hereof, "control" shall be deemed
to mean ownership of not less than fifty (50%) percent of all of- the voting
stock of such corporation or not less than fifty (50%) percent of all the legal
and equitable interest in any other business entity.
(d) Notwithstanding the provisions of sections (a) and (b) to the
contrary, provided that Tenant shall not be in default in any of Tenant's
obligations under this lease, Tenant may, with Landlord's prior written consent,
which shall not be unreasonably withheld, assign its entire interest in this
lease to a "successor corporation". A "successor corporation" as used in this
lease shall mean W a corporation into which or with which Tenant, its corporate
successors or assigns, is merged or consolidated in accordance with applicable
statutory provisions for the merger or consolidation of corporations, provided
that by operation of law or by effective provisions contained in the instruments
of merger or consolidation the liabilities of the corporations participating in
such merger or consolidation are assumed by the corporation surviving such
merger or consolidation, or (ii) a corporation acquiring this lease and the term
and the estate hereby granted, the goodwill and all or substantially all of the
other property and assets (other than capital stock of such acquiring
corporation) of Tenant, its corporate successors or assigns, and assuming all or
substantially all of the liabilities of Tenant, its corporate successors or
assigns, or (iii) any corporate successor to a successor corporation becoming
such by either of the methods described in subdivisions W and (ii) ; provided
that, immediately after giving effect to any such merger or consolidation, or
such acquisition and assumption, as the case may be, the corporation surviving
such merger or created by such consolidation or acquiring such assets and
assuming such liabilities, as the case may be, shall have assets, capitalization
and net worth, similarly determined, equal to or greater than that of Tenant at
the beginning of the term of this lease or of Tenant, its corporate successors
or assigns, immediately prior to such merger or consolidation or such
acquisition and assumption, as the case may be, whichever is greater.
(e) No assignment made pursuant to section (d) or otherwise consented
to by Landlord shall be valid unless, within ten (10) days after the execution
thereof, Tenant shall deliver to Landlord a duplicate original instrument of
assignment and assumption, in form and substance satisfactory to
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Landlord, duly executed by Tenant and by the assignee, in which such assignee
shall assume performance of all of the provisions of this lease. No sublease
made pursuant to section (c) or otherwise consented to by Landlord shall be
valid unless, within ten (10) days after the execution thereof, Tenant shall
deliver to Landlord a duplicate original of any such sublease, in form and
substance satisfactory to Landlord, duly executed by Tenant and the subtenant,
subject and subordinate in all respects to this lease. No subletting or
assignment hereunder shall act to release or discharge Tenant from any of its
obligations under this lease or release or discharge any guarantor of this lease
from any of its obligations.
(f) Notwithstanding anything contained in sections (a) and (b) to the
contrary, but subject to the rights of Tenant under sections (c) and (d), in the
event that at any time Tenant desires to sublet all or any part of the demised
premises or to assign its entire interest in this lease, Tenant: (i) shall
submit to Landlord a notice stating the name and address of the proposed
subtenant or assignee, a detailed description of the business, character and
financial references (including its most recent balance sheet and income
statements certified by its chief financial officer or a certified public
accountant) of the proposed subtenant or assignee, and any other information
(financial or otherwise) reasonably requested by Landlord;
(ii) shall submit to Landlord a conformed or photostatic copy
of the proposed assignment or sublease, the effective date of which shall be at
least twenty (20) days after the date of the giving of such notice and which
shall be conditioned on Landlord's consent thereto and which shall be duly
consented to by any guarantor of this lease. Tenant agrees to indemnify Landlord
against liability resulting from any claims that may be made against Landlord by
the proposed assignee or sublessee, or by any brokers or other persons claiming
a commission or similar compensation in connection with the proposed assignment
or sublease; and
(iii) in the case of a proposed sublease, shall be deemed to
have granted Landlord the option, to be exercised within twenty (20) days after
receipt of all items to be submitted by Tenant pursuant to this section (f) ,
either (1) to sublet from Tenant such space so proposed to be sublet upon the
terms and conditions hereinafter set forth or (2) to cancel and terminate this
lease pursuant to section (g), if applicable, or (3) if any such proposed
sublease shall be for less than all or substantially all of the demised
premises, to cancel and terminate this lease only as to such portion of the
demised premises, to take effect as of the commencement date of such proposed
sublease; and
(iv) in the case of a proposed assignment of this lease,
shall be deemed to have granted Landlord the option, to be exercised within
twenty (20) days after receipt of all items to be submitted by Tenant pursuant
to this section (f) , either (1) to sublet the entire demised premises from
Tenant upon the terms and conditions hereinafter set forth or (2) to cancel and
terminate this lease pursuant to section (g) . No assignment of part of this
lease or of a portion of the demised premises shall be permitted.
(g) Subject to sections (c) and (d) of this Article, if Tenant's
request is for an assignment of this lease, or for a subletting of all or any
portion of the demised premises, then Landlord may, by
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notice given to Tenant within twenty (20) days after receipt of all items to be
submitted by Tenant pursuant to section (f) above, terminate this lease in the
case of an assignment or a subletting of all or substantially all of the demised
premises, or terminate this lease in part with respect to the portion of the
demised premises to be so sublet (the Recaptured Space"), if less than all or
substantially all of the demised premises, effective on a date to be specified
in said notice (Earlier Termination Date"), which shall be not earlier than one
(1) day before the effective date of the proposed assignment or subletting, nor
later than ten (10) days after said effective date. Tenant shall then vacate and
surrender the demised premises, or the Recaptured Space, as the case may be, in
accordance with the terms of this lease, on or before the Earlier Termination
Date, and the term of this lease as to the entire demised premises in the case
of an assignment or a request for the subletting of all or substantially all of
the demised premises, or only as to the Recaptured Space in the case of a
request for a partial subletting, shall end on the Earlier Termination Date as
if that were the expiration date set forth in this lease, and neither party
hereto shall have any further liability hereunder, or in the case of a
subletting rather than an assignment with respect to the Recaptured Space only,
except for such matters specifically stated herein to survive termination of
this lease.
(h) If Landlord shall elect to sublet such space or to terminate this.
lease in whole or in part, Landlord shall be free to, and shall have no
liability to Tenant if Landlord should, lease the demised premises (or such part
thereof) to Tenant's prospective assignee or subtenant. If this lease is so
terminated as to part of the demised premises or part of the demised premises is
sublet to Landlord, Tenant shall vacate and surrender such part of the demised
premises and Landlord, at Landlord's sole cost and expense shall (1) make such
alterations as may be required physically to separate such surrendered space
from the remainder of the demised premises and to comply with any and all
applicable laws, ordinances, orders, rules, regulations and other requirements,
and install all other equipment or facilities which may be required in order to
use such sublet portion as a unit separate from the remainder of the demised
premises, (2) repair or restore to tenantable condition any part of the
remainder of the demised premises which is physically affected by such
separation, if necessary, (ii) Tenant shall afford Landlord and its tenants
appropriate means of ingress and egress to and from such surrendered space and
(iii) in the event of a partial termination of this lease Landlord and Tenant
shall execute and deliver a supplementary agreement modifying this lease, as of
the day following such surrender, by eliminating the Recaptured Space from the
demised premises, reducing the rent allocable to the remainder of the demised
premises pro rata, on a square footage basis, and appropriately modifying the
other terms of this lease to reflect the elimination of such Recaptured Space
from the demised premises.
(i) In the event Landlord exercises Landlord's option to sublet such
space pursuant to section (f)(iii) or (f)(iv) above, such sublease by Tenant to
Landlord (or its designee) shall be at a rent equal to the lesser of (1) the
rentals set forth in the proposed sublease or (2) the rent for the entire
demised premises set forth in this lease (or a pro rata apportionment of such
rent if such sublease shall be in respect of less than the whole of the demised
premises) , and shall be for the same term as of that of the proposed further.
subletting (or for the entire balance of the term, less one (1) day, in the case
of a proposed assignment) and it is expressly agreed that the sublease shall
give Landlord the absolute right, without Tenant's permission, to assign such
sublease, or any interest
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therein and/or to further sublet the space covered by such sublease or any part
of such space and to make any and all improvements, alterations, additions or
other installations in such space. Any such assignment or subletting by Landlord
may be for any use that Landlord deems appropriate. At the expiration of the
term of such sublease, Tenant will accept the space covered by such sublease in
its then existing condition. The sublease shall also expressly negate any
intention that any estate created under such sublease be merged with any other
estate held by either of said parties.
(j) In the event Landlord does not exercise its option to so sublet
such space or to terminate this lease in whole or in part within the twenty (20)
day period specified in section (f), Landlord's consent to such subletting or
assignment, as the case may be, shall not be unreasonably withheld. However,
Landlord in any event shall not be obligated to consent to any sublease or
assignment of this lease unless:
(1) In the reasonable judgment of Landlord, the
proposed subtenant or assignee, as the case may be, is of a character and
financial worth such as is in keeping with the then standards of Landlord in
those respects for the building, and the nature of the proposed subtenant's or
assignee's business and its reputation is in keeping with the character of the
building and its. tenancies;
(2) The purposes for which the proposed subtenant or
assignee intends to use the demised premises or the applicable portion thereof
are uses expressly permitted by this lease;
(3) Tenant shall not have (i) advertised or
publicized in any way the availability of all or part of the demised premises
without Landlord's prior written consent, or (ii) listed or publicly advertised
the demised premises for subletting or assignment at a rental rate less than the
greater of (y) the rent then payable hereunder for such space or (z) the rent at
which Landlord is then offering to lease comparable space in the building;
(4) The rental rate under the sublease or assignment
is not less than the greater of (y) the rent then payable hereunder for such
space or (z) the rent at which Landlord is then offering to lease comparable
space in the building;
(5) The proposed occupancy shall not impose a
disproportionate burden upon the building equipment or building services;
(6) The proposed sublease or assignment shall
prohibit any assignment or further subletting;
(7) Tenant shall not be in default in the performance
of any of its obligations hereunder; and
(8) The proposed subtenant or assignee shall not then
be a tenant or occupant of the building, or a related entity, subsidiary,
division or affiliate of any such tenant or occupant,
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or a person, or entity then negotiating with Landlord for the rental of any
space or any government, governmental agency or entity, or autonomous
governmental corporation, or any entity having governmental immunity, or a
diplomatic or trade mission.
(k) In the event Tenant fails to execute and deliver any assignment or
sublease to which Landlord shall have consented within forty-five (45) days
after the giving of such consent, then Tenant shall again comply with all of the
provisions and conditions of this Article before assigning this lease or
subletting all or any part of the demised premises.
(l) Notwithstanding anything to the contrary contained herein, if
Landlord shall consent to any assignment or subletting, and Tenant shall either
W receive any consideration from its assignee (other than a successor
corporation) in connection with the assignment or this lease, Tenant shall pay
over to Landlord, as additional rent hereunder so much, if any, of such
consideration as shall exceed the brokerage commission incurred by Tenant for
such assignment or (ii.) sublet the demised premises to anyone (other than a
related corporation) for rents which for any period shall exceed the rents
payable for the subleased space under this lease for the same period, Tenant
shall pay Landlord, as additional rent hereunder, any "net profits" (as
hereinafter defined) that Tenant may derive from such subletting. "Net profits"
shall consist of such excess less the brokerage commission incurred by Tenant
for such subletting.
(m) If Landlord shall recover or come into possession of the demised
premises before the date herein fixed for the termination of this lease,
Landlord shall have the right, at its option, to take over any and all subleases
of the demised premises or any part thereof made by Tenant and to succeed to all
the rights of said subleases or such of them as it may elect to take over.
Tenant hereby expressly assigns and transfers to Landlord such subleases as
Landlord may elect to take over at the time of such recovery or possession, such
assignment and transfer not to be effective until the termination of this lease
or re-entry by Landlord hereunder or if Landlord shall otherwise succeed to
Tenant's estate in the demised premises, at which time Tenant shall upon request
of Landlord execute, acknowledge and deliver to Landlord such further
assignments and transfers as may be necessary to vest in Landlord the then
existing subleases. Every sublease hereunder is subject to the condition, and by
its acceptance and entry into a sublease each
subtenant thereunder shall be deemed conclusively to have thereby agreed, that
from and after the termination of this lease or re-entry by Landlord hereunder,
or if Landlord shall otherwise succeed to Tenant's estate in the demised
premises, such subtenant shall waive any right to surrender possession or to
terminate the sublease, and, at Landlord's election, such subtenant shall attorn
to and recognize Landlord as its Landlord under all of the then executory terms
of such sublease, except that Landlord shall not (i) be liable for any previous
act, omission or negligence of Tenant under such sublease, (ii) be subject to
any counterclaim or offset not expressly provided for in such sublease, which
theretofore accrued to such subtenant against Tenant, (iii) be bound by any
previous modification or amendment of such sublease unless expressly. consented
to in writing by Landlord or by any previous prepayment of more than one (1)
month's rent and additional rent which shall be payable as provided in the
sublease, (iv) be obligated to repair the subleased space or the building or any
part thereof in the event of total or substantially total damage or in the event
of partial condemnation or (v) be obligated
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to perform any work in the subleased space; and the subtenant shall execute and
deliver to Landlord any instruments Landlord may reasonably request to evidence
and confirm such attornment. Each subtenant or licensee of Tenant shall be
deemed automatically, upon and as a condition of occupying or using the demised
premises or any part thereof, to have given a waiver of the type described in
and to the extent and upon the conditions set forth in Article 9(e).
43. RIDER TO ARTICLES 16, 17 AND 18: DEFAULT.
(a) ACCELERATION OF RENT. In addition to Landlord's other remedies
under Article 18, at Landlord's sole option Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, as and for
liquidated and agreed damages and not as a penalty, an amount equal to the
excess, if any, of the annual rent and additional rent reserved hereunder for
the unexpired portion of the term demised hereunder (measured from the latest of
the date of termination of this lease, the date of reentry, or the date through
which monthly deficiencies shall have been paid in full) over the fair and
reasonable rental value of the demised premises for the same period. In the
computation of such damages such excess of any installment of rent becoming due
hereunder after the date of termination over the fair and reasonable rental
value of the demised premises for the period for which such installment was
payable shall be discounted to the date of termination at the rate of four (4%)
percent per annum.
(b) CONDITIONAL LIMITATIONS. This lease and the term and estate hereby
granted are subject to the limitations enumerated in Articles 16 and 17 and
hereinafter in this paragraph and for purposes of enforcement of Landlord's
remedies under this. lease or as provided by law such enumerated events of
default shall be deemed conditional limitations. In addition to those enumerated
in section (1) of Article 17 of this lease the term and estate hereby granted
are subject to the following further limitations (which shall be deemed added to
said section (1) of Article 17) : (i) if any event shall occur or any
contingency shall arise whereby this lease or the estate hereby granted or the
unexpired balance of the term thereof would, by operation of law or otherwise,
devolve upon or pass to any person other than Tenant, except as expressly
permitted by Articles 11 and 42 hereof; or (ii) there shall be any default by
Tenant under any other lease with Landlord which shall not be remedied within
the applicable grace or cure period, if any, provided therefor under such other
lease.
(c) BANKRUPTCY. Without limiting any of the provisions of Articles 16,
17 or 18, hereof, if pursuant to the Bankruptcy Code of 1978, as, the same has
been and may be hereafter amended, Tenant is permitted to assign this lease in
disregard of the restrictions contained in Articles 11 and 42 hereof, Tenant
agrees that (i) the trustee or assignee shall cure any default under this lease
and shall provide adequate assurance of future performance by the assignee
(which shall mean the deposit of cash security with Landlord in an amount equal
to the sum of one year, s annual and additional rent then reserved hereunder for
the calendar year preceding the year in which such assignment is intended to
become effective, which deposit shall be held by Landlord, without interest, for
the balance of the term of this lease as security f or the full and faithful
performance of all of the obligations under this lease on the part of Tenant yet
to be performed), and (ii) the assignee contemplated use of the demised premises
shall in no way diminish the reputation of the building as a first class office
building
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or impose any additional burden upon the building or its systems or impose any
service obligations upon Landlord (beyond those specifically required to be
provided by Landlord pursuant to this lease). If Tenant receives or is to
receive any valuable consideration for such an assignment of this lease, such
consideration, after deducting therefrom (A) the brokerage commissions, if any,
and other expenses reasonably incurred by Tenant for such assignment and (B) any
portion of such consideration reasonably designated by the assignee as paid for
the purchase of Tenant's property in the demised premises, shall be and become
the sole and exclusive property of Landlord and shall be paid over to Landlord
directly by such assignee. In addition, adequate assurance shall mean that any
such assignee of this lease shall have a net worth, exclusive of good will,
equal to at least fifteen (15) times the aggregate of the annual rent reserved
hereunder plus all additional rent for the preceding calendar year as aforesaid.
(d) PERFORMANCE OF END OF TERM OBLIGATIONS. In addition, if this lease
is terminated under the provisions of Article 17, or if Landlord shall reenter
the demised premises under the provisions of Articles 17 or 18, Tenant agrees
that:
(i) the demised premises then shall be in the condition in
which Tenant has agreed to surrender the same to Landlord at the expiration of
the term hereof;
(ii) Tenant shall have performed prior to any such
termination any covenant of Tenant contained in this lease for the making of any
alterations or for restoring or rebuilding the demised premises or the building,
or any part thereof; and
(iii) for the breach of any covenant of Tenant set forth
above in this paragraph (d), Landlord shall be entitled immediately without
notice or -other action by Landlord, to recover, and Tenant shall pay, as and
for liquidated damages therefor, the cost of performing such covenant (as
estimated by an independent contractor selected by Landlord.
(e) DEFAULT INTEREST. In addition to any other remedies Landlord may
have under this lease, and without reducing or adversely affecting any of
Landlord's rights and remedies under Articles 16, 17, or 18 and under this
Article 43, if any annual rent, additional rent or damages payable hereunder by
Tenant to Landlord are not paid within ten (10) days after the due date for
payment thereof, the same shall bear interest at the annual rate of five (5%)
percent above the Prime Rate (as hereafter defined) or the maximum rate
permitted by law, whichever is less, from the due date thereof until Landlord's
receipt of payment thereof, and the amount of such interest shall be additional
rent hereunder. The term "Prime Rate" shall be equal to the fluctuating rate of
interest from time to time (during the period such payment is due) announced by
The Chase Manhattan Bank, N.A. or any successor thereto as its "prime rate." If
neither The Chase Manhattan Bank, N.A. nor any successor thereof announces such
a rate, reference shall be made instead to the most recent "prime rate"
published by The Wall Street Journal, or any successor to such publication. For
purposes of this paragraph, a rent xxxx sent by first-class mail, to the address
to which notices are to be given under this lease, shall be deemed a proper
demand for the payment of the amounts set forth therein.
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44. RIDER TO ARTICLE 22: END OF TERM.
(a) HOLD-OVER DAMAGES. If Tenant shall hold-over or remain in
possession of any portion of the demised premises beyond the expiration of the
term of this lease, Tenant shall be subject not only to a summary eviction
proceeding and all damages related thereto, but also to any damages arising out
of delay by Tenant in so surrendering the demised premises, including without
limitation any claims arising out of any lost opportunities by Landlord to relet
the demised premises (or any part thereof) or any claims by any succeeding
tenant (if the premises, or any part thereof, shall have been relet) founded
upon such delay. All damages to Landlord by reason of such holding-over by
Tenant may be the subject of a separate action and need not be asserted by
Landlord in any summary eviction proceedings against Tenant.
(b) WAIVER OF RICRHT TO A STAY. Tenant expressly waives, for itself
and for any party claiming through or under Tenant, any rights which Tenant or
any such party may have under the provisions of Section 2201 of the New York
Civil Practice Law and Rules and of any similar or successor law of same import
then in force, in connection with any hold-over proceedings which Landlord may
institute to enforce the provisions of this Article.
(c) MONTH-TO-MONTH HOLD-OVER TENANCY. In the event Tenant remains in
possession of the demised premises after termination of this lease without the
execution of a new lease with the Landlord, Tenant, at the option of Landlord,
shall be deemed to be occupying the demised premises as a tenant from
month-to-month, at a monthly rental equal to twice the rent and additional rent
payable during the last month of the term of this lease, subject to all of the
other terms of this lease insofar as the same are applicable to a month-to-month
tenancy. Notwithstanding the preceding sentence, the acceptance of any rent paid
by Tenant shall not preclude Landlord from commencing and prosecuting a
hold-over or summary eviction proceeding and the preceding sentence shall be
deemed to be an "agreement expressly providing otherwise" within the meaning of
section 232-c of the Real Property Law of the State of New York.
(d) SURVIVAL OF OBLIGATIONS. Upon the expiration or other termination
of this lease neither party shall have any further obligation or liability to
the other except as otherwise expressly provided in this lease (including,
without limitation, the obligations of Tenant provided in Article 3 hereof) and
except for such obligations as by their nature or under the circumstances can
only be, or by the provisions of this lease, may be, performed after such
expiration or other termination; and, in any event, unless otherwise expressly
provided in this lease, any liability f or a payment which shall have accrued to
or with respect to any period ending at the time of expiration or other
termination of this lease shall survive the expiration or other termination of
this lease.
45. RIDER TO ARTICLE 28: BILLS AND NOTICES.
(a) Except as otherwise expressly provided herein, all notices and
other communications (herein collectively called "notices"), other than bills,
statements and correspondence rendered by
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Landlord to Tenant in the ordinary course of Landlord's business (which may be
sent by regular mail or personally delivered to Tenant), given or required to be
given under or in connection with this lease, by either party hereto to the
other, shall be in writing and sent by registered or certified mail, return
receipt requested, postage prepaid, and W if to Tenant, sent to the attention of
Xxxxx Xxxxx, Chief Financial Officer, by certified mail, return receipt
requested, addressed as first set forth in this lease if mailed prior to the
commencement date, or to the building if mailed thereafter, or to such other
address as Tenant may designate for such purpose by notice to Landlord, with a
copy to Xxxxxx Xxxxxxx, Esq., 00 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX
00000, and (ii) if to Landlord, addressed to Landlord's address as first set
forth in this lease, or to such other address as Landlord may designate for such
purpose by notice to Tenant. Any notice sent as aforesaid shall be deemed to
have been rendered or given two (2) business days after mailing.
(b) Tenant shall give prompt notice to Landlord of any accident,
emergency, occurrence for which Landlord might be liable, fire or other casualty
and all damages to or defects in the demised premises, the building or the
appurtenances thereto for the repair of which Landlord might be responsible or
which constitutes Landlord' s property. Such notice shall be given by telephone,
telegram or personal delivery to the address of Landlord then in effect for
notices (to be followed by a written notice conforming to the requirements of
section (a) of this Article 45).
46. RIDER TO ARTICLE 34: DEFINITIONS.
For the purposes of this lease and all agreements supplemental to this
lease, unless the context otherwise requires:
(a) The terms "include", "including" and "such as" and words of
similar import shall be construed as if followed by the phrase "without being
limited to". The words "herein" "hereof", "hereby", "hereunder" and words of
similar import shall be construed to refer to this lease as a whole and not to
any particular Article, section or provision unless expressly so stated.
(b) The term "obligations of this lease" and words of similar import,
shall mean the covenants to pay rent and additional rent and to perform all of
the other terms of this lease. Any provision in this lease that one party or the
other or both shall do or not do or shall cause or permit or not cause or permit
a particular act, condition or circumstance, shall be deemed to mean that such
party so covenants or both parties so covenant, as the case may be.
(c) The term "terms of this lease" or "terms of this Article" shall be
deemed to include all terms, covenants, conditions, provisions, obligations,
limitations, restrictions, reservations and agreements of this lease or such
Article, as the case may be.
(d) The term "consent" or "approval" shall mean prior consent and
approval in writing, and the consent or approval by either party to any
particular action shall not in any way be considered as relieving the other
party from obtaining the express consent or approval to any subsequent or
further action.
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(e) Each term, covenant, agreement, obligation or other provision of
this lease on Tenant's part to be performed shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent upon any of the other
terms of this lease. This lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
lease to be drafted. In the event of any action, suit, arbitration, dispute or
proceeding affecting the terms of this lease, no weight shall be given to any
deletions or striking-out of any of the terms of this lease contained in any
draft of this lease and no such deletion or strike-out shall be entered into
evidence in any such action, suit, arbitration, dispute or proceeding nor given
any weight therein.
(f) The term "rental" or "rent" shall include the annual rental and
all additional rent.
(g) The term "Force Majeure" means any and all causes beyond
Landlord's control, including without limitation delays caused by Tenant,
governmental regulation, governmental restriction, strike, labor, jurisdictional
or other disputes, riot, accident, mechanical breakdown, or inability to obtain
labor, fuel, steam, water, electricity or materials, acts of God, war, enemy
action, civil commotion, fire or other casualty.
(h) Words and phrases in the singular shall be deemed to include the
plural and vice versa, and nouns and pronouns used in any particular gender
shall be deemed to include any other gender.
(i) The rule of "ejusdem generis" shall not be applicable to limit a
general statement following or referable to an enumeration of specific matters
to matters similar to the matters specifically mentioned.
(j) The term "and/or" when applied to one or more matters or things
shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(k) The term "laws and requirements of any public authorities" and
words of similar import shall mean laws and ordinances of any or all of the
federal, state, city, town, county, borough or village governments and rules,
regulations, orders and directives of any and all departments, subdivisions,
bureaus, agencies or offices thereof, and of any other governmental, public or
quasi-public authorities having jurisdiction over the Building and/or the
demised premises, and the direction of any public officer pursuant to law,
whether now or hereafter in force.
(1) The term "mortgage" shall include a mortgage and/or a deed of
trust, and the term "holder of a mortgage" or "mortgagee" or words of similar
import shall include a mortgagee of a mortgage or a beneficiary of a deed of
trust.
(m) The term "person" shall mean any natural person or persons, a
partnership, a corporation, and any other form of business or legal association
or entity.
(n) The term "requirements of insurance bodies" and words of similar
import shall mean rules, regulations, orders and other requirements of the New
York Board of Underwriters and/or the
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New York Fire Insurance Rating organization and/or any other similar body
performing the same or similar functions and having jurisdiction or cognizance
over the Building and/or the demised premises, whether now or hereafter in
force.
(o). The term "Tenant" shall mean the Tenant herein named or ,any
assignee or other successor in interest (immediate or remote) of the Tenant
herein named, which at the time in question is the owner of the Tenant's estate
and interest granted by this lease; but the foregoing provisions of this
paragraph shall not be construed to permit any assignment of this lease or to
relieve the Tenant herein named or any assignee or other successor in interest
(whether immediate or remote) of the Tenant herein named from the full and
prompt payment, performance and observance of the covenants, obligations and
conditions to be paid, performed and observed by Tenant under this lease.
(p) The terms "Owner" and "Landlord" are used interchangeably in this
lease and have the same meaning so that references herein to Landlord shall also
mean Owner and vice versa.
47. RIDER TO ARTICLE 40: SUCCESSORS AND ASSIGNS.
The provisions of this lease are solely for the benefit of the parties
hereto and their respective successors and assigns, and shall not inure to the
benefit of, or be enforceable by, any third party, and specifically shall not
inure to the benefit of, or be enforceable by, any present or future tenant or
occupant of the building (other than Tenant).
48. REAL ESTATE TAX ESCALATION:
(a) Tenant shall pay to Landlord, as additional rent under this lease,
tax escalation ("Tax Escalation") in accordance with this Article:
(i) Definitions: For purposes of this lease, the following
definitions shall apply:
(1) The term "Base Tax" shall mean the Real Estate
Taxes payable for the Tax Year ending June 30, 1998. If the Taxes comprising the
Base Tax are reduced as a result of an appropriate proceeding or otherwise, the
Real Estate Taxes as so reduced shall for all purposes be deemed to be Real
estate Taxes for the Base Tax, and Landlord shall give notice to Tenant if the
amount by which the tax payments previously made were less than the tax payments
required to be made under this Article, and Tenant shall pay the amount of the
deficiency within ten (10) days after demand therefor.
(2) The term "Real Property" shall mean the land (the
"land") on which the building is located, the building (together with all
personal property located therein and all fixtures, facilities, machinery and
equipment used in the operation thereof) and all improvements on the land or in
the Building and all easement air rights, development or zoning rights over
other real property.,in vicinity of the building and all appurtenances to all of
the foregoing.
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(3) The term "Tax Year" shall mean each New York City
real estate tax year commencing on July 1st and expiring on June 30th in which
any portion of the term of this lease shall fall. If the present use of a July
1-June 30 New York City real estate tax year shall hereafter be changed, then
such changed tax year shall be used with appropriate adjustment for the
transition.
(4) The term "Real Estate Taxes" shall mean the total
of all taxes and special or other assessments levied, assessed or imposed at any
time by any governmental authority (including, without limitation, any district,
as such term is defined in Article 19-A of the General Municipal Law of the
State of New York) upon or against or with respect to the Real Property or any
part thereof (but excluding, however, any interest or other late payment charges
thereon so long as Tenant is current in the payments required to be made by it
to Landlord under this Article). If, due to a future change in the method of
taxation or in the taxing authority, or for any other reason any tax, or
assessment is levied, assessed, or imposed at any time by any governmental
authority in connection with the receipt of income or rents from the Real
Property, or a franchise, income, value added, use, transit, profit, or other
tax or governmental imposition, however designated, shall be levied against
Landlord or any owner of the Real Property in addition to or in substitution in
whole or in part for the Real Estate Taxes, or in lieu of additions to or
increases of the Real Estate Taxes, then such franchise, income, value added,
use, transit, profit, or other tax, assessment or governmental imposition shall
be deemed to be included within the definition of Real Estate Taxes for the
purposes hereof. In the event the present real property tax system is so
modified, substituted for, or changed, (in a manner not covered by the preceding
sentence), so that the resulting new system is such that the provisions of this
Article 48 cannot be implemented then, in such event, the parties shall agree
upon a substitute formula for upward or downward adjustment of annual rent in
lieu of the formula set forth in this Article 48 so as to reflect accrued and/or
accumulated downward or upward adjustments of rent made up to the time of such
change of the real property tax system and future adjustments under such new
system, and upon the failure of the parties to so agree to such a substitute
formula, it is hereby agreed that the matter shall be submitted to arbitration
before a single impartial arbitrator in accordance with the Real Estate
Valuation Arbitration Rules of the American Arbitration Association, or any
successor thereto, to so determine a substitute formula for the adjustment of
rent under this Article 48, and such arbitrator's award upon confirmation by the
court having jurisdiction shall be thereafter binding upon the parties to this
lease. If there are any assessments which are payable over a period of time
extending beyond the term of this lease, only a pro rata portion thereof
covering the portion of the term of this lease unexpired at the time of the
imposition of such assessment, shall be included in Real Estate Taxes. If, by
law, any assessment may be paid in installments, then, for the purposes hereof,
(1) such assessment shall be deemed to have been payable in the maximum number
of installments permitted by law without penalty and (2) there shall be included
in Real Estate Taxes for each Tax Year in which such installments may be paid
the installments of such assessment so becoming payable during such Tax Year,
together with interest payable during such Tax Year.
(5) The term "Tenant's Share", for purposes of this
lease shall mean 0.47%.
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(ii) In the event that the Real Estate Taxes payable for any
Tax Year shall exceed the Base Tax, Tenant shall pay as Tax Escalation to
Landlord, as additional rent for such Tax Year, an amount equal to Tenant's
Share of the excess. Before or after the start of each Tax Year, Landlord shall
furnish to Tenant a statement of Tenant's Share of Real Estate Taxes payable for
such Tax Year together with a copy of the tax bills for such Tax Year. If the
Real Estate Taxes for such Tax Year exceed the Base Tax, Tenant shall pay as
additional rent on the first (1st) day of each calendar month, together with
payment of rent, an amount equal to one-twelfth (1/12th) of Tenant's Share of
such excess. To the extent that at the time of furnishing any such statement the
aggregate monthly payments made for the preceding months of the Tax Year in
question are less than the amount which would have been paid if the installments
required pursuant to such statement had been made for such preceding months, the
deficiency shall be due and payable in full as additional rent together with the
regular monthly installment of rent next coming due. Landlord shall send (a) a
revised statement to Tenant during any Tax Year if Real Estate Taxes are changed
during such Tax Year, and an appropriate adjustment shall be made in the monthly
installments based thereon. If there is any difference between the amount Tenant
has paid for such tax year and the amount due Landlord hereunder for such Tax
Year then, after the end of such Tax Year, Landlord shall send Tenant a
statement of Tenant's Share of the Real Estate Taxes for such Tax Year and
within five (5) days after receipt of such statement Tenant shall pay Landlord
as additional rent any amount by which Tenant's share of the Real Estate Taxes
exceeds the aggregate monthly installments paid by Tenant during such Tax Year.
Any amount by which such aggregate monthly installments exceed Tenant's Share of
the Real Estate Taxes for such Tax Year shall be credited against rent and
additional rent hereunder.
(b) If, after Tenant shall have made a payment of additional
rent under this Article, and provided Tenant is not in default under this lease,
Landlord shall receive a refund of any portion of the Real Estate Taxes payable
for any Tax Year on which such payment of additional rent shall have been based,
as a result of a reduction of such Real Estate Taxes by final determination of
an application, legal proceeding, settlement, or otherwise, Landlord shall give
Tenant an appropriate credit against rent and additional rent hereunder, after
deducting therefrom all legal fees, expert fees, court costs and all expenses
and fees incurred in connection with obtaining such refund (prorated for any
partial year if appropriate) . Nothing herein shall be deemed to obligate
Landlord to seek a reduction in Real Estate Taxes or assessed valuation of the
Real Property.
(c) Except as elsewhere specifically provided in this
Article, any statement of the Tax Escalation furnished by Landlord as provided
above shall constitute a final determination as between Landlord and Tenant of
the Tax Escalation for the period represented thereby unless Tenant shall,
within thirty (30) days after it is furnished, give a notice to Landlord that it
disputes the accuracy or appropriateness thereof, which notice shall specify the
particular respects in which the statement is inaccurate or inappropriate.
Pending the resolution of such dispute, Tenant shall pay Tax Escalation to
Landlord in accordance with the statement furnished by Landlord.
(d) In no event shall the annual rental rate under this lease
for any year, or the
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items of the additional rent payable under any other provisions of this lease
during the term hereof, be reduced by virtue of this Article.
(e) If the commencement date of the lease term is not the first day of
a Tax Year, then Tenant's Share of Real Estate Taxes for such Tax Year shall be
prorated based upon the number of days of the term of this lease within such Tax
Year. Upon the date of any expiration or termination of this lease (except
termination because of Tenant's default in which event the amount otherwise to
be prorated in Tenant's favor shall instead be applied to reduce damages payable
by Tenant by reason of such default), whether the same be the date herein above
set forth for the expiration date of this lease or any prior or subsequent date,
Tenant's Share for such Tax year shall be prorated for the number of days of the
term of this lease within such Tax Year and, to the extent not theretofore
already paid, shall be immediately payable, subject to adjustment at the end of
such Tax Year as provided in this Article.
(f) Landlord's and Tenant's obligation to make the payments and
adjustments referred to in this Article shall survive any expiration or
termination of this lease.
(g) Any delay or failure of Landlord in billing any Tax Escalation
herein above provided shall not constitute a waiver of, or in any way impair the
continuing obligation of Tenant to pay, such Tax Escalation hereunder.
49. WAGE RATE ESCALATION:
The term "Basic Rate" means the regular hourly rate of wages, i.e.,
without fringe benefits, required to be paid to office building porters pursuant
to a collective bargaining agreement between the Realty Advisory Board on Labor
Relations, Inc. (or any successor thereto) and Local 32B-32J of the Building
Service Employees International Union AFL- CIO (or any successor thereto) on
December 31, 1998. If such collective bargaining agreement is not entered into,
or if such parties or their successors shall cease to bargain collectively, the
Basic Rate (or the regular hourly rate of wages, i.e., without fringe benefits,
required to be determined in order to establish, from time to time, any increase
in the annual rental rate payable by Tenant to Landlord pursuant to this
Article) shall be the average of the regular hourly rate of wages, i.e., without
fringe benefits, payable to, or. for the benefit of, office building porters
engaged in the general maintenance and operation of the building and payable
either by Landlord or by the contractor furnishing such services, but not in
excess of the hourly minimum rate of wages for office building porters engaged
in the general maintenance and operation of off ice buildings in the same
vicinity as the building. If in any calendar year during the term of this lease
such regular hourly rate of wages paid to office building porters exceeds the
Basic Rate, the annual rental rate payable under this lease shall be increased
by one cent ($.01) per square foot
of space in the demised premises for each one cent ($.01), or fraction thereof,
that such regular hourly rate of wages exceeds the Basic Rate. Landlord shall
notify Tenant of any such adjustment in the annual rental rate and shall furnish
to Tenant appropriate supporting data with respect thereto to the extent
available. Such adjustment in the annual rental rate shall commence as of the
effective date of such increase in wages, and shall be paid by Tenant to
Landlord as part of
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the monthly installments of annual rental which thereafter shall include
one-twelfth (1/12) of the annual amount of such adjustment until a new
adjustment becomes effective pursuant to the terms of this Article. Any such
adjustment for less than a full year or for less than a full month shall be
prorated accordingly. For the purpose of this Article, the Parties agree that
the demised premises shall be deemed to contain 880 square feet of space. The
Basic Rate is intended to be an index in the nature of a cost of living index
and is not intended to reflect the actual cost of wages for the building. Any
notice of adjustment sent by Landlord to Tenant shall constitute a final
determination as between Landlord and Tenant of the rental adjustment
established thereby unless Tenant shall, within thirty (30) days after it is
furnished, give a notice to Landlord that Tenant disputes the accuracy or
appropriateness thereof, which notice shall specify the particular respects in
which the statement is inaccurate or inappropriate. Pending the resolution of
such dispute, Tenant shall pay to Landlord the amounts described in Landlord's
notice to Tenant.
50. UTILITY COSTS ESCALATION:
(a) Tenant agrees to pay Landlord, as additional rent hereunder, in
the amount and manner provided in subparagraphs (b) and (c) of this Article, a
share of the Utility Costs (as hereinafter defined) incurred in the operation
and maintenance of the building of which the demised premises form a part.
"Utility Costs" shall mean the total costs and expenses for utility services
incurred in operating and maintaining the building including, without
limitation, the cost of electricity, steam, gas and water (including sewer
rental) furnished to the building (including all rentable portions of the
building, whether or not separately metered and paid for by the tenants thereof,
and the public and common areas thereof),together with any taxes on such costs.
(b) Tenant's share of Utility Costs shall be 0.47% of the excess of
the amount of Utility Costs for any Accounting Period over those for the Base
Year. "Base Year" shall mean the period of twelve (12) consecutive full calendar
months ending on June 30, 1998.
(c) As used herein, the "First Accounting Period" shall mean the
period comprising the twelve (12) full calendar months commencing July 1, 1998
and each Subsequent Accounting Period" shall mean each period of twelve (12)
full calendar months thereafter during the term, of this lease. Tenant's share
of increased Utility Costs over Base Year costs shall be payable as follows:
(i) During the portion of the term hereof falling within the
First Accounting Period (subject to adjustment as hereafter in subparagraph (c)
(3) set forth) Tenant shall pay Landlord, monthly, in advance, on the first day
of each month, the sum of $10.00 as an estimate of Tenant's share of such
increased Utility Costs; any partial month to be prorated.
(ii) The foregoing estimated amount of Tenant's monthly share
of Utility Costs shall be adjusted and revised by Landlord as of the end of the
First and each Subsequent Accounting Period during the term hereof on the basis
of the actual Utility Costs during the immediately preceding First or Subsequent
Accounting Period, as the case may be, plus reasonably anticipated increases in
such Costs. Upon Landlord furnishing to Tenant a written statement setting forth
such revised estimated Utility Costs, Tenant shall pay Landlord such
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revised estimated share in monthly installments, in advance, on the first day of
each month, until the next succeeding revision in such estimate.
(iii) Within ninety (90) days following the end of the First
Accounting Period and each Subsequent Accounting Period, Landlord shall furnish
Tenant with a written statement covering the Accounting Period just expired
showing in reasonable detail the excess of total Utility Costs for such
Accounting Period over said costs for the Base Year and the payments made by
Tenant with respect to such Accounting Period. If Tenant's share of said Utility
Costs exceeds Tenant's payments with respect to such Accounting Period, Tenant
shall pay to Landlord the deficiency within ten (10) days after the furnishing
of said statement; and if said payments made by Tenant exceed Tenant's share of
said Utility Costs, Tenant shall be entitled to a credit for such excess against
payments next thereafter to become due to Landlord on account of Tenant's share
of increased Utility Costs. Tenant shall have the right to inspect the books and
records of Landlord during business hours for the purpose of verifying the
information contained in the written statement furnished by Landlord to Tenant
covering each Accounting Period provided written request for such inspection is
made by Tenant to Landlord within fifteen (15) days following the receipt of
such written statement.
(iv) As to any Accounting Period, Tenant's obligation for a
share of Utility Costs shall be prorated on the basis of the actual number of
~ays in the portion of such Accounting Period contained in the term of this
lease, as to which Tenant's obligation shall survive the term hereof.
(v) In the event of any dispute, Tenant shall pay the amount
of Tenant's xxxx or statement as rendered by Landlord and such payment shall be
without prejudice to Tenant's position. If the dispute shall be determined in
Tenant's favor by agreement, or otherwise, Tenant shall be entitled to a credit
against payments next thereafter to become due Landlord on account of Tenant's
share of Utility Costs.
(vi) Any such xxxx or statement rendered by Landlord to
Tenant shall be deemed binding and conclusively correct if Tenant fails to
object thereto within thirty (30) days after the receipt thereof.
(d) Notwithstanding anything to the contrary contained in paragraph (a)
of this Article, if Landlord exercises its election under paragraph (c) of
Article 55 hereof to discontinue furnishing electrical service to the demised
premises as now required pursuant to said Article 55 then increases in
electricity costs accruing after such discontinuance shall not be included in
calculating Utility Costs for purposes of determining Tenant's share thereof.
51. ESTOPPEL CERTIFICATE:
(a) At any time and f rom time to time upon not less than ten (10)
days, prior notice by Landlord to Tenant, Tenant shall, without charge, execute,
acknowledge and deliver to Landlord a statement in writing, in recordable form,
addressed to such party as Landlord may designate,
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prepared by Landlord or in form satisfactory to Landlord certifying (i) that
this lease is unmodified and 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), (ii) whether the term of this lease has commenced and rent
and additional rent have become payable hereunder and, if so, the dates to which
they have been paid, (iii) whether or not, to the best knowledge of the signer
of such certificate, Landlord is in default in performance of any of the terms
of this lease and, if so, specifying each such default of which the signer may
have knowledge, (iv) whether Tenant has accepted possession of the demised
premises, (v) whether Tenant has made any uncollected claim against Landlord
under this lease and, if so, the nature thereof and the dollar amount, if any,
of such claim, (vi) whether there exist any offsets or defenses against
enforcement of any of the terms of this lease upon the part of Tenant to be
performed and, if so, specifying the same and (vii) such further information
with respect to the lease or the demised premises as Landlord may reasonably
request, it being intended that any such statement delivered pursuant hereto may
be relied upon by any prospective purchaser of the building or any part thereof
or of the interest of Landlord in any part thereof, by any mortgagee or
prospective mortgagee thereof, by any lessor or prospective lessor thereof, by
any lessee or prospective lessee thereof, or by any prospective assignee of any
mortgage thereof.
(b) The failure of Tenant to execute, acknowledge and deliver to
Landlord a statement in accordance with the provisions of this Article within
said ten (10) day period shall constitute an acknowledgment by Tenant, which may
be relied on by any person who would be entitled to rely upon any such
Statement, that such statement as submitted by Landlord is true and correct.
Notwithstanding such acknowledgment, Tenant, at Landlord's option, shall be in
default thereunder for its failure to execute, acknowledge and deliver such
statement.
52. EXCULPATION:
Landlord and Tenant agree that in any action arising out of, or under,
this lease against Landlord hereunder, the enforcement or collection of any
judgment or arbitration award against, and the monetary liability of, Landlord
shall be limited to (a) the interests of Landlord in and to the Real Property
and the leasehold estate under any ground or underlying lease affecting the land
and/or Building and the rents and profits therefrom and (b) Landlord's interest
in this lease, and Tenant shall not enforce any judgment against, or attach, any
other assets of such Landlord, or of any disclosed or undisclosed principal of
Landlord (or of any officer, director, stockholder, partner or agent of Landlord
or of any such principal) in satisfaction thereof, and Tenant shall look only
and solely to such interests for the satisfaction of any right or remedy of
Tenant arising out of or under this lease, the relationship of Landlord and
Tenant hereunder or under law, or Tenant's use and occupancy of the demised
premises or other liability of Landlord to Tenant.
53. HAZARDOUS MATERIALS PROHIBITED:
Tenant shall not cause or permit any Hazardous Materials (hereinafter
defined) to be used, stored, transported, released, handled, produced or
installed in, on or from the demised premises or any other portion of the
Building. "Hazardous Materials", as used herein, shall mean any
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flammables, explosives, radioactive materials, hazardous wastes, hazardous and
toxic substances or related materials, asbestos or any material containing
asbestos, or any other substance or material as defined by any present or future
Federal, state or local environmental law, ordinance, rule or regulation,
including, without limitation, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, the Resource Conservation
and Recovery Act, as amended, and the regulations adopted and publications
promulgated pursuant to each of the foregoing. In the event of a breach of the
provisions of this Article 53, Landlord shall have the right, in addition to all
other rights and remedies of Landlord under this lease or at law, to require
Tenant at Tenant's sole expense, to remove any such Hazardous Materials from the
demised premises and dispose of the same off premises in the manner prescribed
for such removal and disposal by laws and requirements of any public
authorities. The provisions of this Article 53 shall survive the expiration or
termination of this lease. Further, Tenant shall carry, during the entire term
of this lease, adequate insurance in Landlord's reasonable opinion, against
liability claims based upon the existence, release, removal and/or disposal of
Hazardous Materials (the insurance requirements contained in Article 41 shall
apply to such coverage). Tenant's indemnity obligations conta.-'.xxx in
paragraph (a) of Article 41 shall apply to any loss or damage suffered by
Landlord as a result of Tenant's breach of any of the provisions of this Article
53.
54. MISCELLANEOUS:
(a) If any provision of this lease or its application to any party or
circumstance is invalid or unenforceable to any extent under present or future
law, then and in that event, it is the intention of the parties hereto that the
remainder of this lease or the application of such provision to any other party
or circumstance shall not be affected thereby. Each provision of this lease
shall be valid and enforceable to the fullest extent permitted by law.
(b) Tenant shall not commence any action or proceeding against
Landlord brought or maintained pursuant to Article 9 of The Civil Practice Law
and Rules, Rule 23 of the Federal Rules of Civil Procedure, or any other statute
or rule permitting or governing class actions now or hereafter in effect, nor
shall Tenant participate by consent or otherwise in any such action or
proceeding brought against Landlord by any other party. If Tenant is named or
joined as a party therein, Tenant shall promptly withdraw from any such
action-or proceeding in accordance with applicable state or Federal law.
(c) It is understood and agreed that Tenant shall not bring into the
building lobby and/or the demised premises any type of bicycle or motorbike.
(d) Tenant hereby agrees not to install venetian blinds in the demised
premises which are different in design, color, size and/or manner of hanging
than most of the venetian blinds installed in the other areas of the building,
it being the intention and desire of the parties hereto that substantially all
venetian blinds in the building should be of uniform character, color, size and
design.
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(e) In the event of any inconsistency between any provision contained
in this Rider and the printed provisions of this lease the provisions of this
Rider shall be paramount and controlling.
(f) No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this lease, in whole or in
part, including, without limitation, this paragraph (f), unless such agreement
is in writing, refers expressly to this lease and is signed by the party against
whom enforcement of the change, modification, waiver, release, discharge,
termination or effectuation of the abandonment is sought.
(g) Except as otherwise expressly provided in this lease, this lease
shall bind and benefit the successors and assigns of the parties hereto with the
same effect as if mentioned in each instance where a party is named or referred
to: provided, however, that (i) no violation of the provisions of Articles 11 or
42 hereof shall operate to vest any rights in any successor or assignee of
Tenant and (ii) the provisions of this paragraph shall not be construed as
modifying the conditions of limitation contained in Articles 17 and 43 hereof.
(h) If Tenant shall request Landlord's approval and Landlord shall
fail or refuse to give such approval, Tenant shall not be entitled to any
damages for any withholding by Landlord of its approval, it being intended that
Tenant's sole remedy shall be an action for specific performance or injunction,
and that such remedy shall be available only in those cases where Landlord has
expressly agreed in writing not to unreasonably withhold its consent or where as
a matter of law Landlord may not unreasonably withhold its consent.
(i) If an excavation shall be made upon land adjacent to or under the
building, or shall be authorized to be made, Tenant shall, afford to the person
causing or authorized to cause such excavation license to enter the demised
premises for the purpose of performing such work as said person shall deem
necessary or desirable to preserve and protect the building from injury or
damage to support the same by proper foundations, without any claim for damages
or liability against Landlord and without reducing or otherwise affecting
Tenant's obligations under this lease.
(j) The submission by Landlord of this lease in draft form shall be
deemed submitted solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force or effect and shall
confer no rights nor impose any obligations, including brokerage obligations, on
either party unless and until both Landlord and Tenant shall have executed this
lease and duplicate originals thereof shall have been delivered to the
respective parties.
(k) Irrespective of the place of execution or performance, this lease
shall be governed by and construed in accordance with the laws of the State of
New York. The table of contents, captions, headings and titles in this lease are
solely for convenience of references and shall not affect its interpretation.
(1) If under the terms of this lease Tenant is obligated to pay
Landlord a sum in addition to the annual rent and no payment period therefor is
specified, Tenant shall pay Landlord the amount
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due within ten (10) days after being billed.
(m) Except as otherwise specifically provided herein to the contrary,
all bills, invoices or statements rendered to Tenant pursuant to this lease
shall be deemed binding and conclusive if, within thirty (30) days of receipt of
the' same, Tenant fails to notify Landlord in writing of its intention to
dispute such xxxx, invoice or statement.
(n) Notwithstanding anything to the contrary contained in this lease,
during the continuance of any default by Tenant, Tenant shall not be entitled to
exercise any rights or options, or to receive any funds or proceeds being held,
under or pursuant to this lease.
(o) Tenant represents and warrants:
(i) that there are no actions, suits or proceedings pending
or, to the knowledge of Tenant, threatened against or affecting Tenant, at law
or in equity or before any federal, state, municipal or governmental department,
commission, board, bureau, agency or instrumentality which would impair Tenant's
ability to perform its obligations under this lease;
(ii) that this lease has been duly authorized, executed and
delivered by Tenant and constitutes the legal, valid and binding obligation of
Tenant; and
(iii) that the consummation of the transactions hereby
contemplated and. the performance of this lease by Tenant will not result in any
breach or violation of, or constitute a default under, any lease, bank loan or
credit agreement to which Tenant is a party.
(p) Tenant acknowledges that it has no rights to any development
rights, "air rights" or comparable rights appurtenant to the Real Property, and
consents, without further consideration, to any utilization of such rights by
Landlord and agrees to promptly execute and deliver any instruments which may be
requested by Landlord, including instruments merging zoning lots, evidencing
such acknowledgment and consent. The provisions of this paragraph shall be
deemed to be and shall be construed as an express waiver by Tenant of any
interest Tenant may have as a "party in interest" (as such quoted term is
defined in Section 12-10 Zoning Lot of the Zoning Resolution of the City of New
York) in the Real Property.
(q) If any sales or other tax is payable with respect to any cleaning
or other services which Tenant obtains or contracts for directly from any third
party or parties, Tenant shall file any required tax returns and shall pay any
such tax, and Tenant shall indemnify and hold Landlord harmless from and against
any loss, damage or liability suffered or incurred by Landlord on account
thereof.
(r) Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the demised premises, all of the
building, including, without limitation, exterior building walls, core corridor
walls and doors and any core corridor entrance, any terraces or roofs adjacent
to the demised premises, and any space in or adjacent to the demised premises
used for
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shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other Building facilities, and the use thereof, as well as access
thereto through the demised premises for the purposes of operation, maintenance,
decoration and repair, are reserved to Landlord and persons authorized by
Landlord.
(s) Landlord shall have the right to erect and maintain sidewalk
bridges and/or scaffolding on or about the demised premises and/or the building.
(t) If at any time any windows of the demised premises are either
temporarily darkened or obstructed by reason of any repairs, improvements,
maintenance and/or cleaning in or about the building (or permanently darkened or
obstructed if required by law) or covered by any translucent material for the
purpose of energy conservation, or if any part of the building, other than the
demised premises, is temporarily or permanently closed or inoperable, the same
shall be without liability to Landlord and without any reduction or diminution
of Tenant's obligations under this lease.
(u) Landlord reserves the right, at any time, without it being deemed
a constructive eviction and without incurring any liability to Tenant therefor,
or affecting or reducing any of Tenant's covenants and obligations hereunder, to
make or permit to be made such changes, alterations, additions and improvements
in or to the building and the fixtures and equipment thereof, as well as in or
to the street entrances, lobby, doors, halls, passages, elevators, escalators
and stairways thereof, and other public parts of the building, as Landlord shall
deem necessary or desirable..
(v) Tenant shall not record this lease or any memorandum thereof.
(w) All additional charges required to be paid pursuant hereto
(sometimes referred to herein as "additional rent") shall be deemed to be rent
and Tenant's failure to pay additional rent shall be considered a failure to pay
rent hereunder and Landlord shall be entitled to all rights and remedies
provided herein or by law in connection therewith.
55. ELECTRICITY:
(a) To the extent available from an entity supplying the same (public
or private), or municipal or public utilities, servicing the locality in which
the building is located,. Landlord shall cause to be furnished the electric
energy that Tenant shall reasonably require in the demised premises on a rent
inclusion basis (i.e. there shall be no charge to Tenant for such electric
energy by way of measuring the same by meter or otherwise, such reasonable usage
of electric energy being included as part of Landlord's services under this
lease covered by the annual rent reserved hereunder) , however, in the event
Tenant shall fail to pay any installment of rent or additional rent, Landlord
may, upon five (5) days, notice (which may be oral), discontinue the service of
electric current to the demised premises without releasing Tenant or Landlord or
from any liability under this lease and without Landlord's agent incurring any
liability for any damage or loss sustained by Tenant by such discontinuance of
service. Landlord shall not be liable in any way to Tenant for any change,
failure, inadequacy or defect in the supply or character of electric energy
furnished to the demised premises
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by reason of any requirement, act or omission of the municipal or public utility
servicing the building and/or the demised premises with electricity, or for any
reason whatsoever not directly attributable to Landlord. Tenant shall furnish
and install all replacement lighting, tubes, lamps, bulbs and ballasts which may
be required from time to time in the demised premises at Tenant's sole cost and
expense.
(b) Tenant's use of electric energy in the demised premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the demised premises in order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
building electric service, Tenant shall not, without Landlord's prior written
consent in each instance (which shall not be unreasonably withheld) , connect
any additional fixtures (except light duty office desk equipment and computers),
appliances or equipment to the building electric distribution system or make any
alteration or addition to the electric system of the demised premises existing
on the date of commencement of the term of this lease. As a condition to
granting such consent, Landlord may require Tenant to agree to an increase in
the annual rent payable hereunder in an amount which will reflect the value to
Tenant of the additional electrical service to be furnished by Landlord, that
is, the potential additional electrical energy to be made available to Tenant
based upon the estimated additional capacity of such additional risers or such
other additional equipment. If Landlord and Tenant cannot agree thereon such
amount shall be conclusively determined by a reputable, independent electrical
engineer to be selected by Landlord and paid equally by both parties. Pending
such determination, if requested by Tenant, Landlord shall make such additional
electrical service available to Tenant provided Tenant agrees in writing to pay
the cost therefor in accordance with Landlord's initial determination while such
dispute is being determined. When the amount of such increase is so determined
the parties shall execute an agreement supplementary hereto to reflect such
increase in the amount of annual rent effective from the date such additional
service is made available to Tenant, but such increase shall be effective from
such date even if such supplementary agreement is not executed. Should Landlord
grant such consent, all additional risers or other equipment required therefore
shall be provided by Landlord and the cost thereof shall be paid by Tenant upon
Landlord's demand. In the event that the electrical service and riser system
existing on the date of commencement of the term hereof is sufficient to handle
the requested additional electrical needs of Tenant and Landlord expressly
consents in writing to Tenant's connection thereto Tenant shall pay to Landlord
its prorata share of the total cost of purchase, connection and installation of
an additional electrical service and riser comparable to the existing electrical
service and riser being made available to Tenant in order to compensate Landlord
for the electric capacity being allocated to Tenant from such existing
electrical service and riser system (such connection charge being computed by
Landlord as of the date of this lease at the rate of $103.75 per amp per phase
of total additional connected load).
(c) Landlord reserves the right to discontinue furnishing electric
energy to Tenant in the demised premises at any time upon not less than thirty
(30) days notice to Tenant. If Landlord exercises such right of termination,
this lease shall continue in full force and effect and shall be unaffected
thereby, except only that, from and after the effective date of such
termination, Landlord shall not be obligated to furnish electric energy to
Tenant and the annual rent payable under this
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lease shall be reduced by $2,640.00 per annum. If Landlord so discontinues
furnishing electric energy to Tenant, Tenant shall arrange to obtain electric
energy directly from the public utility company furnishing electric service to
the building. Such electric energy may be furnished to Tenant by means of the
then existing building system feeders, risers and wiring to the extent that the
same were available on the date of commencement of the term hereof. All meters
and additional panel boards, feeders, risers, wiring and other conductors and
equipment which may be required to obtain electric energy directly from such
public utility company shall be installed by Tenant at its expense.
(d) Tenant agrees that Landlord is under no obligation to furnish
electric energy or any other utility services to the demised premises which are
purchased from the public utility company serving the locality in which the
building is located and Tenant's obligations under this Article 55 shall be
unaffected if Landlord contracts to purchase and in fact furnishes such electric
energy and/or other utility services from a private company or entity (whether
or not affiliated with Landlord). Tenant shall enter into such modifications of
this lease as Landlord may from time to time request in connection with any
requirement of any public utility or any requirement of law pertaining to
utility services or charges therefor.
56. COMMERCIAL RENT CONTROL:
If any of the annual rent or additional rent payable under the terms
of this lease shall be or become uncollectible, reduced or required to be
refunded because of any applicable laws, ordinances, orders, rules, requirements
or regulations, Tenant shall enter into such agreement (s) and take such other
steps (without additional expense to Tenant) as Landlord may request and as may
be legally permissible to permit Landlord to collect the maximum rents which f
rom time to time during the continuance of such legal rent restriction may be
legally collected (but not in excess of the amounts reserved therefor under this
lease) Upon the termination of such legal rent restriction, (i) the annual rent
and additional rent shall become and thereafter be payable in accordance with
the amounts reserved herein for the periods following such termination and (ii)
Tenant shall pay to Landlord, to the maximum extent legally permissible, an
amount equal to (A) the annual rent and additional rent which would have been
paid pursuant to this lease but for such legal rent restriction less (B) the
annual rent and additional rent paid by Tenant during the period such legal rent
restriction was in effect.
57. AIR CONDITIONING:
Landlord shall furnish to the demised premises air conditioning from
April 15th through October 15th in each year of the term, without..charge for
electricity used in the operation thereof, on business days from 8:00 a.m. to
6:00 p.m., except on Saturdays when the hours shall be from 8:00 a.m. to 1:00
p.m., when required for the comfortable occupancy of the Tenant. Tenant agrees
to keep, and cause to be kept, closed all windows in the demised premises,
whenever the air conditioning system is in operation, and Tenant agrees at all
times to cooperate fully with Landlord, and to abide by all reasonable
regulations and requirements which Landlord may prescribe, for the proper
functioning and protection of said air conditioning system. Landlord reserves
the right to
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interrupt, curtail, stop, or suspend such air conditioning when necessary by
reason of accident, or of repairs, alterations, or improvements in the judgment
of Landlord desirable and necessary to be made, or difficulty in securing
supplies or labor, or strikes, or any other cause beyond the reasonable control
of Landlord, whether such other cause be similar or dissimilar to those
hereinbefore specifically mentioned. No diminution or abatement of rent or other
compensation shall or will be claimed by Tenant, nor shall this lease, nor any
of the obligations of Tenant hereunder, be affected or reduced, by reason of any
such interruption, curtailment, stoppage or suspension of such air conditioning.
Any damage caused to air conditioning equipment as a result of the negligence
of, or the careless operation by, Tenant, or its agents, employees, licensees or
invitees, shall be repaired by Landlord at the cost and expense of Tenant, and
any such expense shall be paid by Tenant to Landlord upon demand therefor and
shall constitute additional rent hereunder.
58. FREIGHT ELEVATOR SERVICE:
Notwithstanding the provisions of Article 31, Landlord shall at its own
expense run freight elevator service on business days are from 8:00 a.m. to
12:00 noon and 1:00 p.m. to 5:00 p.m. with no freight elevator service on
Saturdays, Sundays or Holidays.
59. TENANT'S CLEANING CONTRACTOR:
In order to further effectuate a tight security program, Tenant
covenants and agrees to use only the contractors designated by Landlord to
provide cleaning services in the building, and/or a contractor or contractors
approved by Landlord in advance for any waxing, polishing and other maintenance
work in or to the demised premises and/or any of Tenant's personal property
therein, provided that the prices charged by such contractor(s) are comparable
to the prices charged by other reputable contractors for the same work. Tenant
shall not employ any other cleaning or maintenance contractor, or any
individual, firm or organization, for such purposes without Landlord's prior
written consent. If Landlord and Tenant cannot agree on whether the prices being
charged by the contractor(s) designated by Landlord are comparable to those
charged by other reputable contractors, Landlord and Tenant shall each obtain
two (2) bona fide bids for such work from reputable contractors in New York City
and the average of the four (4) bids obtained shall be the standard of
comparison. The foregoing shall not preclude Tenant or its employees from
directly performing any of the foregoing "in house" (except that Tenant must use
the cleaning contractor designated by Landlord for rubbish removal and pay the
cost thereof as provided in Article 62 hereof) . Notwithstanding the provisions
of section (d) of Article 31 of this lease, in addition to keeping the demised
premises clean at Tenant's expense, Tenant shall also pay to Landlord, or at
Landlord's direction directly to the cleaning contractor, 4.89% of the cleaning
expenses and cost of supplies for the cleaning of the common areas on the floor
(s) on which the demised premises are located (i.e. the public corridor(s) and
bathroom(s)).
60. ATTORNMENT:
Tenant covenants and agrees that, if by reason of a default upon the
part of the Landlord as
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tenant under any underlying lease in the performance of any of the terms or
provisions of such underlying lease or if for any other reason of any nature
whatsoever, such underlying lease and the leasehold estate of Landlord as tenant
thereunder is terminated by summary proceedings or otherwise in accordance with
the terms of such underlying lease or if such underlying lease and such
leasehold estate is terminated through foreclosure proceedings brought by the
holder of any mortgage to which such underlying lease is subject or subordinate,
Tenant shall attorn to the landlord under such underlying lease or the purchaser
in such foreclosure proceedings, as the case may be, and shall recognize such
landlord or such purchaser, as the case may be, as the Tenant's Landlord under
this lease, unless the landlord under such underlying lease or the holder of any
such mortgage in any proceedings shall elect in connection therewith to
terminate this lease and the right of Tenant to the possession of the premises
demised hereby. Tenant agrees to execute and deliver at any time and f rom time
to time upon the request of Landlord, or of the landlord under any such
underlying lease, any instrument, which may be necessary or appropriate to
evidence such attornment and tenant hereby appoints Landlord its attorney- in-
fact, irrevocable and coupled with an interest, to execute and deliver, for and
on behalf of Tenant, any such instrument. Tenant further waives the provisions
of any statute or rule of law now or hereafter in effect which may give or
purport to give Tenant any right of election to terminate this lease or to
surrender possession of the premises demised hereby in the event such underlying
lease terminates or any such proceeding is brought by the landlord under any
such underlying lease or by the holder of any such mortgage and agrees that,
unless and until any such landlord or the holder of any such mortgage, shall
elect to terminate this lease and to extinguish the leasehold estate of the
Tenant hereunder this lease shall not be affected in any way whatsoever by any
such proceeding or termination.
61. GLASS REPLACEMENT:
Landlord shall replace at the expense of Tenant any and all window
glass damaged or broken from any cause whatsoever in and about the demised
premises. Landlord may insure and keep insured at Tenant's expense all glass in
the demised premises for and in the name of Landlord. Bills for the premiums
therefor shall be rendered by Landlord to Tenant at such times as Landlord may
elect and shall be due from and payable by Tenant when rendered and the amount
thereof shall be deemed to be and be paid as additional rent.
62. RUBBISH REMOVAL:
In furtherance of Tenant's obligations under Articles 29 and 31, Tenant
shall pay to Landlord on the first day of each and every month during the term
of this lease, as additional rent hereunder, the sum of $25.00 per month to
cover the cost of rubbish removal for the demised premises. Removal of cartons,
tubes and cases shall be an extra charge. The foregoing monthly amount may be
changed by Landlord from time to time in accordance with the prevailing rate at
0000 Xxxxxxxx.
63. SECURITY:
It is agreed that the security deposit shall be placed in an interest
bearing account with the
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interest earned thereon to be accumulated in the security account and held as
additional security in accordance with Article 32.
64. DIRECTIONAL SIGN:
Tenant, at Tenant's sole cost and expense, may purchase and install at
a location in the common hallway a professionally lettered identification
directional sign (the size, design, method of installation and location thereof
to be subject to Landlord's prior approval, which shall not be unreasonably
withheld).
65. NO BROKER:
It is understood and agreed that no broker was involved in the leasing
of the demised premises.
66. LOBBY DIRECTORY:
Landlord agrees that Tenant shall be entitled to up to three (3)
listings (i.e. names) at no charge on the lobby directory. Future additions (if
space is available) or substitutions shall be paid for by Tenant at Landlord's
then rates.
67. REDUCED RENT PERIOD:
Tenant shall not be obligated to pay annual rent during the period
commencing on February 1, 1998 and ending on February 28, 1998) (the "Reduced
Rent Period"). However, during such Reduced Rent Period, Tenant shall pay for
its electric consumption in the amount of $220.00 per month and rubbish removal
in the amount of $25. 00 per month (aggregating $245. 00 per month) .
68. LANDLORD'S WORK.
It is understood and agreed that Tenant is renting the demised premises
in an "as is" condition, except that Landlord, at Landlord's sole cost and
expense, shall perform the following work:
(a) furnish and install dry wall partition to receive
information window which is presently installed in Room 507 at 00 Xxxx 00xx
Xxxxxx and will be relocated to the demised premises (casing to be block wall
faced with sheetrock);
(b) shampoo and stretch carpeting, as required; and
(c) paint walls in demised premises with a building standard
paint job (color to be off-white or pastel only).
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