EXHIBIT 10.5
LEASE dated February 14, 1997 between XXXXXXXXX ASSOCIATES,
a limited partnership, hereinafter referred to as "Landlord" and PERISCOPE I
SPORTSWEAR, LLC., a New Jersey Corporation, having its principal place of
business at 0000 00xx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000,
hereinafter jointly, severally and collectively referred to as "Tenant."
WITNESSETH: The Landlord does hereby lease to Tenant, and Tenant does
hereby take from Landlord the space(s) designated as Unit "620" on the 6th floor
and Unit "1025" on the l0th floor,
substantially as outlined in red on the plan(s) attached hereto, on the sixth &
tenth floor of the building known as 0000 XXXXXXXX, hereinafter referred to as
"the building" in the Borough of Manhattan, City, County and State of New York,
which space, together with all the fixtures and improvements which, at the
commencement of or during the term, are thereto attached, is hereinafter
referred to as "the premises" or "the demised premises" for a term to commence
on May 1, 1997, and to end on April 30, 2002 at the annual rental of TWO
HUNDRED SIXTY FIVE THOUSAND AND NO/100 ($265,000.00) DOLLARS, which Tenant
agrees to pay in lawful money of the United States of America in equal monthly
installments in advance on the first day of each month during said term, at the
office of Landlord, except that Tenant shall pay the first monthly installment
on the execution hereof unless this lease (Lease) be a renewal.
The parties hereto, for themselves their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant,
as follows:
1. Tenant shall pay the rent and additional rent as above and as
hereinafter provided.
2. Tenant shall use and occupy the premises for SHOWROOM AND OFFICE FOR
THE SALE (WHOLESALE ONLY) AND DISPLAY OF LADIES WEARING APPAREL, and the
premises shall be used for no other purpose.
3. Tenant for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign, mortgage or encumber this Lease nor sublet or suffer or permit the
demised premises or any part thereof, to be used by others without the prior
written consent of Landlord in each instance. The transfer of a majority of any
class of the issued and outstanding capital stock of any corporate Tenant of
this Lease or a majority of the total interest of any partnership or individual
Tenant, however accomplished, whether in a single transaction or in a series of
related or unrelated transactions, shall be deemed an assignment of this Lease.
If this Lease be assigned or if the demised premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may, after default by
Tenant, collect rent, additional rent and other charges from the assignee,
sublessee or occupant, and apply the net amount so collected to the
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rent, additional rent or other charges herein provided, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, sublessee or occupant as tenant, or a
release of Tenant from the further performance by it of the covenants on its
part to be performed hereunder. The consent by Landlord to an assignment or
subletting shall not in any wise be construed to relieve Tenant, subtenant or
any assignee from obtaining the express consent in writing of Landlord to any
further assignment or subletting. The listing of any name other than that of the
Tenant, whether on the doors of the premises or on the building or floor
directories, or otherwise, shall not operate to vest any right or interest in
this Lease or in the premises, or be deemed to be the written consent of the
Landlord mentioned in this paragraph, it being expressly understood that any
such listing is a privilege extended by the Landlord, revocable at will by
written notice to the Tenant, subtenant or assignee where Landlord has consented
in writing to such subleasing or assignment.
4. The Tenant shall not obstruct or permit the obstruction of windows,
halls, areas, roofs, stairways or entrances to the building, and will not affix,
erect or inscribe any signs, projections, awnings, signals, lettering, painting
or advertisements of any kind to any part of the premises including the inside
or outside of the windows or doors and will not paint the inside or outside of
the windows or doors unless and until the style, size, color, construction and
location thereof have been approved in writing by the Landlord. The Landlord
shall have the right to withdraw such approval at any time and to require the
Tenant to remove any such signs, projections, awnings, signals, lettering,
painting or advertisements without being liable to the Tenant by reason thereof
and to charge the cost of doing so to the Tenant as additional rent. The
Landlord also reserves to itself the sole right to designate the person, firm or
corporation which shall do the work of lettering, painting and erecting of any
and all signs to be affixed to the premises or the building.
5. Tenant shall make no alternations, changes, repairs, decorations,
additions or improvements (structural) or non-structural), in or to the demised
premises including any and all mechanical, electrical, air conditioning, heating
and plumbing systems without Landlord's prior written consent, and then only by
contractors or mechanics approved by Landlord. All such work shall be done at
such times and in such manner as Landlord may designate. Prior to Tenant's
commencing any work in and to the premises as provided in this paragraph, Tenant
shall obtain in writing and deliver to Landlord, written and unconditional
waivers of mechanics' and materialmen's liens from the persons or parties who
are to perform such work and services in the premises, in such form as may be
approved by Landlord. Any mechanic's or other lien filed against the premises
or the building for work claimed to have been done for or materials claimed to
have been furnished to Tenant, shall be discharged by Tenant within 10 days
thereafter at Tenant's expense, by filing the bond required by law. All work
done or required to be done by the Tenant shall be done with union labor and
union made materials only and shall comply in all respects and at all times with
the rules and regulations of all municipal or other authorities having
jurisdiction thereof. Asbestos encapsulation, removal or other treatment,
respecting asbestos in the confines of the demised premises, as may be required
by law, shall at all times be at Tenant's sole cost and expense, in the manner
as approved by Landlord.
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6. All fixtures, equipment, improvements made and appurtenances attached
to or built into the space or premises at the commencement of or during the
term, whether by the Landlord at its own expense or at the expense of the
Tenant, or by the Tenant, shall be and remain part of the premises and shall not
be removed by the Tenant at any time unless otherwise expressly provided in this
Lease. All electric, plumbing, heating, sprinkling, telephone, telegraph,
communication and radio systems, fixtures and outlets, partitions, railings,
gates, doors, vaults, paneling, molding, shelving, radiator enclosures, corks,
rubber, linoleum and composition floors, ventilating, silencing, air
conditioning and cooling equipment shall be deemed to be included in such
fixtures, equipment, improvements and appurtenances. Where not built into the
space or premises and if furnished by or at the expense of the Tenant, all
removable electric fixtures, carpets, wind deflectors, electric fans, water
coolers, furniture, trade fixtures and business equipment shall not be deemed to
be included in such fixtures, equipment, improvements and appurtenances, and may
be removed by the Tenant upon condition that such removal does not render any
damage to the building or premises and upon condition also that in the event of
any damage the cost of repairing same shall be paid by the Tenant. All the
outside walls of the premises, including corridor walls and the outside entrance
doors to the premises, any balconies, terraces or roofs adjacent to the
premises, and any space in the premises used for shafts, stacks, pipes,
conduits, ducts or other building facilities and systems and the use thereof, as
well as access thereto in and through the premises for the purpose of operation,
maintenance, decoration and repair, are expressly reserved to the Landlord and
the Landlord does not convey any rights to the Tenant therein.
7. Tenant shall take good care of the premises and fixtures therein and,
subject to the provisions of paragraph 5 hereof shall make, as and when needed,
as a result of misuse or neglect by Tenant or Tenant's servants, employees,
agents, visitors, licensees, contractors, guests or invitees all repairs in and
about the demised premises necessary preserve them in good order and condition,
which repairs shall be in quality and class equal to the original work. However,
Landlord may repair, at the expense of Tenant, all damage or injury to the
demised premises or to the building or to its fixtures, appurtenances or
equipment, done or caused by Tenant or Tenant's servants, employees, agents,
visitors, licensees, contractors, guests or invitees, or caused by moving
property of Tenant in or out of the building, or by installation or removal of
furniture or other property, or resulting from fire, air-conditioning unit or
system short circuits, overflow or leakage of water, steam, illuminating gas,
sewer gas, sewage or odors, or by frost, or by bursting or leaking of pipes or
plumbing works, or gas, or from any other cause, due to the carelessness,
negligence, or improper conduct of Tenant, or Tenant's servants, employees,
agents, visitors licensees, contractors, guests or invitees. Except as provided
in paragraph 13 hereof, there shall be no allowance to Tenant for a diminution
of rental value, and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to person(s) property or business arising
from the making of any repairs, alterations, additions or improvements in or to
any portion of the building or the premises or in or to the fixtures,
appurtenances or equipment, nor shall there be any liability upon the Landlord
for failure to make any repairs, alterations, additions or improvements in or to
any portion of the building or the demised premises or in or to the fixtures,
appurtenances or equipment. The Tenant shall and does hereby indemnify and hold
the Landlord harmless and free from all liability for all injuries suffered by
any person(s), and for damages sustained to property, and for any monies paid
out by Landlord in settlement of any claims or judgements
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resulting from such damages or injuries, as well as for all expenses and
attorney's fees incurred by Landlord in connection therewith.
8. Tenant will not clean, nor require, permit, suffer or allow any window
in the premises to be cleaned, from the outside in violation of Section 202 of
the Labor Law or of the rules of the Board of Standards and Appeals, or of any
other board or body having or asserting jurisdiction.
9. Tenant, at Tenant's expense, shall comply with all laws, orders and
regulations of federal, state, county and municipal authorities, and with any
direction of any public officer or officers, pursuant to law, which shall impose
any duty upon Landlord or Tenant arising out of the Tenant's use or occupancy of
the demised premises, and shall not do or permit to be done, any act or thing
upon said premises, which will invalidate or be in conflict with fire insurance
policies covering the building, fixtures and property therein, and shall not do
or permit to be done any act or thing upon said premises which shall or might
subject the Landlord to any liability or responsibility for injury to any person
or persons or to any property by reason of any business or operation being
carried on upon said premises and shall comply with all rules, orders,
regulations or requirements of the New York Board of Fire Underwriters or any
other similar body and shall not do or permit anything to be done in or upon
said premises, or bring or keep anything therein, which shall increase the rate
of fire insurance on the building or on property located therein. If by reason
of failure of Tenant to comply with the provisions hereof, or if by reason of
the nature of the Tenant's occupancy, the fire insurance rate shall at any time
be higher than otherwise would be, then Tenant shall reimburse Landlord as
additional rent hereunder, for that part of all fire insurance premiums
thereafter paid by Landlord, which shall have been charged because of such
violation or because of such occupancy by Tenant, and shall make such
reimbursement upon the first day of the month following such outlay by Landlord.
In any action or proceeding wherein Landlord and Tenant are parties, a schedule
or "make up" of rate for the building or the premises issued by the New York
Fire Insurance Exchange or other body making fire insurance rates for said
premises, shall be conclusive evidence of the facts therein stated and of the
several items and charges in the fire insurance rate then applicable to said
premises.
10. This Lease is and shall remain subject and subordinate to all ground
or underlying leases, leasehold mortgages, and mortgages and building loan
mortgages which may now or hereafter affect the real property of which the
demised premises form a part and each and every of the advances which have
heretofore been made or which may hereafter be made thereunder, and to all
renewals, modifications, consolidations, replacements and extensions thereof. In
confirmation of such subordination, Tenant shall execute promptly any
instruments or certificate that Landlord may request. Tenant hereby irrevocably
constitutes and appoints Landlord the Tenant's attorney-in-fact to execute any
such instrument or certificate for and on behalf of Tenant. This clause shall,
nevertheless, be self-operative.
11. Tenant and Tenant's agents, employees, visitors, licensees,
contractors, guests or invitees shall faithfully comply with the Rules and
Regulations set forth on the back cover of this Lease and with such further
reasonable Rules and Regulations as Landlord at any time may make and
communicate to Tenant, which, in the Landlord's judgment, shall be necessary
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for the reputation, safety, care or appearance of the building, or the
preservation of good order therein, or the operation of the building or
maintenance of the building, its equipment, or the more useful occupancy or
comfort of the Tenants and others in the building. Landlord shall not be liable
to Tenant for the violation of any said Rules and Regulations or the breach of
any covenant or condition in any lease by any other Tenant in the building.
12. Landlord or Landlord's agents shall not be liable for any damage to
property entrusted to employees of the building nor for the loss of any property
by theft or otherwise. Landlord or Landlord's agents shall not be liable for any
injury or damage to persons or property resulting from falling plaster, steam,
gas, electricity, water, rain or snow which may leak from any part of the
building or from the pipes, appliances or plumbing works of the same, or from
the street or sub-surface, or from any other place, or by dampness or any other
cause of whatsoever nature, unless caused by or due to the negligence of
Landlord; nor shall Landlord be liable for any such damage caused by other
tenants or persons in the building, or for interference with the light or other
incorporeal hereditaments, or caused by operations in construction of any public
or quasi public work; nor shall Landlord be liable for any latent defect in the
building. Tenant shall reimburse Landlord as additional rent for all expenses,
damages or fines incurred or suffered by Landlord by reason of any breach,
violation or non-performance of any covenant or provision of this Lease by
Tenant, or Tenant's servants, employees, agents, visitors, licensees,
contractors, guests or invitees, or by reason of damage to person or property
caused by moving property in or out of the building, or by the installation or
removal of furniture or other property of or for the Tenant, or by reason of or
arising out of the occupancy or use by Tenant of the premises or of the
building, or from any other cause due to the carelessness, negligence or
improper conduct of the Tenant or the Tenant's servants, employees, agents,
visitors, licensees, contractors, guests or invitees.
13. If the demised premises shall be partially damaged by fire or other
cause without the fault or neglect of Tenant, Tenant's servants, employees,
agents, visitors, licensees, contractors, guests or invitees, the damages shall
be repaired by and at the expense of Landlord and the rent and additional rent
until such repairs shall be made shall be apportioned according to that part of
the premises which is usable by Tenant. No penalty shall accrue for reasonable
delay which may arise by reason of adjustment of fire insurance on the part of
Landlord or Tenant, and for reasonable delay on account of "labor troubles," or
any other cause beyond Landlord's control. But if the demised premises are
totally damaged or are rendered wholly untenantable by fire or other cause, and
the Landlord shall decide not to rebuild the same, or if the building of which
the demised premises are a part shall be so damaged that Landlord shall decide
to demolish it or to rebuild it, then or in any of such events Landlord may,
within ninety (90) days after such fire or other cause, give Tenant a notice in
writing of such decision, and thereupon the term of this Lease shall expire by
lapse of time upon the third day after such notice is given, and Tenant shall
vacate the demised premises and surrender the same to Landlord.
14. If the entire land and building of which the demised premises are a
part, shall be taken or condemned by any competent authority 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 when the possession thereof shall be
required for such use or purpose. If any part of the land
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or the building of which the demised premises are a part or any part of the
demised premises shall be so acquired or condemned, then and in that event, the
term of this Lease, at the option of the Landlord, on ten (10) days notice by
Landlord to Tenant, shall cease and terminate from the date when possession of
the part so taken shall be required for such use or purpose. In the event that
Landlord shall not elect to terminate this Lease and part of the demised
premises shall be so taken or condemned, the annual rental, additional rent and
other charges, shall be apportioned from the date thereof. In no event, under
any of the circumstances described herein, shall Tenant have any claim for the
value of any part of the unexpired term of the within Lease or any portion of
the demised premises so taken or condemned and shall not share in any award that
may be made to Landlord or others.
15. As long as Tenant is not in default under any of the covenants of this
Lease, Landlord shall, if and insofar as the existing facilities provide, at
Landlord's expense: (a) run elevators on business days from 8 A.M. to 6 P.M. and
in addition on Saturdays from 8 A.M. to 1 P.M. and also provide one elevator
which will be subject to call during all other hours on business days,
Saturdays, Sundays and holidays; (b) furnish on business days from 8 A.M. to 6
P.M. heat to warm the demised premises when and as required by law; (c) cause to
be kept clean the halls, corridors and public portions of the building, which
are used, in common by all tenants. Tenant shall, at Tenant's expense, keep the
demised premises clean and in order, to the satisfaction of Landlord, and remove
its own rubbish. Landlord shall have the sole right to designate and appoint
the person or concern to be employed, at Tenant's expense, for the removal of
Tenant's refuse and rubbish from the building. Landlord reserves the right to
stop service of the heat, elevator, air conditioning, cooling, plumbing and
electric systems, when necessary by reason of accident, or for repairs,
alterations or improvements, including conversion of each and any of the
elevators from manual to automatic, in the judgement of Landlord desirable or
necessary to be made, until such repairs, alterations or improvements shall have
been completed, and shall have no responsibility or liability for failure to
supply heat, elevator, plumbing, air conditioning, cooling and electric service,
when prevented from so doing by strikes or accidents or by any cause beyond
Landlord's reasonable control, or by orders or regulations of any federal,
state, county or municipal authority or failure of coal, oil or other suitable
fuel supply, or inability by exercise of reasonable diligence to obtain coal,
oil or other suitable fuel. It is expressly understood and agreed that any
covenants on Landlord's part to furnish any service pursuant to any of the terms
or provisions of this Lease or to perform any act or thing for the benefit of
Tenant shall not be deemed breached if Landlord is unable to perform the same by
virtue of a strike or labor trouble or any other cause whatsoever beyond
Landlord's control and Tenant agrees that there shall be no abatement or
reduction of rent in the event that any of said systems or service should fail
to function for the reasons above set forth.
16. Landlord shall have the right to install a separate water meter or
meters for the demised premises or any part thereof and Tenant shall pay the
cost therefor, and if so installed, Tenant shall keep same in repair and pay the
charges made by the municipality for or in respect of the consumption of water
together with sewer rental charges based thereon as and when billed therefor. If
the building or any part thereof be supplied with water through a meter or
meters, the Tenant shall pay to the Landlord, as and when billed therefor, the
Tenant's proportionate part of all such charges together with sewer rental based
on such meter
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charges, which amount shall be determined by multiplying the percentage factor
set forth in paragraph 33(b) by the total of the water bills and sewer charges
rendered by the municipality or other public authority from time to time. All
water and sewer rental bills submitted by any public authority shall be
conclusive evidence of the amount due. All payments required to be made by the
Tenant under this paragraph shall be deemed additional rent.
17. Landlord shall furnish Tenant with electric current (subject to
discontinuance as provided herein), at no additional charge except as may be
hereinafter provided in subparagraph (a) hereof and paragraph 33(d), during
business days, consistent with the normal purposes for which the demised
premises have been leased to Tenant, subject to all the provisions as may be
herein contained.
(a) In the event there is an increase or decrease, as the case may be, in
the rate schedule or rates for the purchase of electric current or electricity,
including demand or energy charges, fuel adjustment rates, service charges or
sales taxes, hereinafter collectively referred to as "electric consumption and
demand charges" from the public utility or other supplier of electricity to the
Landlord from and after the date hereof, such increase or decrease shall at
Landlord's option, be added to and made a part of, or subtracted from the annual
rental provided for in this Lease, and if this Lease has not yet commenced, then
such increase or decrease shall be added to and made a part of, or subtracted
from the annual rental upon the commencement of the Lease. The amount of such
increase or decrease shall be computed by: ascertaining the electric consumption
and demand charges for the entire building for the 12 months immediately
preceding the effective date of the increase or decrease; then ascertaining such
electric consumption and demand charges based upon the new rates and charges;
then computing the percentage of increase or decrease, as the case may be, and
multiplying such percentage of increase or decrease by the difference between
the annual rental and the amount set forth in subdivision (c) below.
(b) Tenant shall make no changes in or additions to the electrical system,
wiring, conduits, switches, fixtures, outlets or any other electrical equipment
in the building or demised premises during the term of this Lease and any
extensions or renewals thereof without first obtaining the written consent of
the Landlord thereto. Tenant shall not, during the term of this Lease, connect
to the risers, feeders, outlets, base receptacles, wiring or installations
constituting Landlord's electrical distribution system, any electrical
machinery, electrical equipment, electrical computers or any other office or
electrical appliances without first obtaining the written consent of the
Landlord thereto. Tenant further agrees not to permit at any time during the
term of this Lease, its electrical consumption to overtax the capacity of
Landlord's existing electrical distribution system.
(c) The Landlord may discontinue the supply of electric current to the
Tenant, at any time, notwithstanding any contrary provisions of this Lease, upon
giving Tenant thirty (30) days prior written notice of Landlord's intention so
to do and thereupon Tenant may contract or otherwise arrange with any person,
firm or corporation for the purchase and supply of, such electric current, all
without affecting or changing the obligations of the Tenant under this Lease,
provided, however, that in the event of the discontinuance of the electric
current by the Landlord, the annual rental shall be reduced to the sum of $
256,429.00 and Tenant shall
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have no further rights under this Lease with respect thereto. In the event of
such discontinuance of electric current, Tenant shall have no right to use or
utilize Landlord's electrical distribution system, including its risers,
feeders, wiring or installations for the supply of Tenant's electric current.
Tenant may install, at its own cost and expense, any risers, feeders, wiring or
installations to enable it to obtain electric current, subject, however, to
there being available space, areas and facilities in the building for the
inclusion and insertion of such risers, feeders, wiring and installations, of
which availability Landlord shall be the sole judge; provided that same shall
not cause damage or injury to the building or the demised premises, or cause or
create a dangerous or hazardous condition, or interfere with or disturb other
tenants, or overtax the capacity of Landlord's existing electrical distribution
system, and provided further that any such work will at all times comply with
the laws, rules and regulations of all governmental bureaus, agencies and other
subdivisions having jurisdiction over the demised premises. The aforesaid
risers, feeders, wiring and installations to be installed by Tenant shall, at
all times, be and remain the property of Landlord.
(d) The Landlord agrees to supply electric current to the Tenant in the
manner as herein set forth, to the extent that the quality, character and
quantity of the supply of electric current shall be available to the Landlord
from the public utility company or other supplier supplying the same and the
Landlord and Tenant further agree that Landlord shall not be liable to the
Tenant for any loss, damage or expense resulting from change in the quality,
character or quantity or due to the cessation or interruption of said supply
without any fault on the part of the Landlord, or for Landlord's failure to
supply such electric current when prevented from so doing by strikes, accidents,
repairs, alterations, improvements or other causes beyond Landlord's control or
by orders or laws of any federal, state, county or municipal authorities, and
there shall be no abatement of rent upon the happening and during the period of
such event or events.
18. The Landlord has installed within the building of which the demised
premises are a part, machinery, appliances, equipment and appurtenances for the
operation and maintenance of a modern peripheral air-conditioning system which
is capable, during the summer time, when the outside temperature is 95 degrees,
of maintaining inside the building a temperature of approximately 10 degrees
less and a proportionately less difference of temperature between the inside and
outside, as the outside temperature falls to 75 degrees Fahrenheit. The Landlord
has provided main cooling system units at the windows which service the
peripheral area and has installed two or more main ducts and booster units on
all floors of the building as a part of the air-conditioning system.
(a) It is expressly understood by the Tenant that in order for the air
conditioning system to function properly, the Tenant is obliged to, and the
Tenant agrees to keep all windows in the premises closed. Tenant acknowledges
that the air-conditioning system will not function properly if the demised
premises are occupied by more than an average of one person for each 100 sq.
ft., or if Tenant installs or operates lighting loads in excess of 3 1/2 xxxxx
per sq. ft. or if Tenant installs and operates electrical equipment which gives
off heat that cannot be adequately absorbed by Landlord's existing air-
conditioning system in the demised premises.
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(b) Subject always to events and causes, physical, mechanical and
otherwise, beyond the reasonable control of the Landlord, for the failure of
which the Landlord shall not be liable in any event whatever, the Landlord will
service and maintain said air conditioning system in such matter as to provide
air-conditioning for the premises on business days generally during the hours
of 8 A.M. to 6 P.M. during the months of June, July, August and September, when
required, consistent with the provisions hereof.
(c) Any damage caused to the appliances, equipment or appurtenances as a
result of the negligence of or the careless operation by the Tenant or the
agents, servants, employees, contractors, visitors, guests, licensees or
invitees of the Tenant, shall be repaired by the Landlord at the cost and
expense of the Tenant, which expense shall constitute additional rent.
19. (a) Tenant shall permit Landlord to erect, use and maintain, pipes
and conduits in and through the demised premises. Landlord's agents shall have
the right to enter the demised premises at all times to examine same, to show
them to prospective purchasers or lessees of the building, and to make such
decorations, repairs, alterations, improvements or additions as Landlord may
deem necessary or desirable either to the building or to the demised premises
and Landlord shall be allowed to take all material into and upon said premises
that may be required therefor without the same constituting an eviction of
Tenant in whole or in part and the rent reserved shall in no wise xxxxx while
said decorations, repairs, alterations, improvements or additions are being
made, by reason of loss or interruption of the business of Tenant, because of
the prosecution of any such work or otherwise.
(b) The Tenant shall give prompt notice to the Landlord of any fire,
accident to or defective condition in any part of the demised premises,
including but not limited to the sanitary, electrical, heating, air
conditioning, cooling and other systems located in, or passing through the
premises, and the damage or defective condition shall be remedied by the
Landlord with due diligence, but if such damage or defective condition was
caused by the Tenant or if the system was installed for the particular use of
the Tenant and the damage or defective condition was not caused by the
negligence of the Landlord, the cost of the remedy thereof shall be paid by the
Tenant.
(c) During the six months prior to the expiration of the term of this
Lease, Landlord may exhibit the premises to prospective tenants at all
reasonable hours.
(d) If, during the last month of the Term, Tenant shall have removed all
or substantially all of Tenant's property from the premises, Landlord may
immediately enter and alter, renovate and decorate the premises or any part
thereof without affecting this Lease and without liability to Tenant for an
abatement of rent or other compensation.
(e) Landlord may permit access to the premises without incurring liability
to the Tenant, whether or not the Tenant shall be present, upon demand of any
receiver, trustee, assignee for the benefit of creditors, sheriff, marshal,
court officer or government official entitled to, or reasonably purporting to be
entitled to such access for the purpose of taking possession of or removing
Tenant's property or for any other lawful purpose. This provision and any action
by the Landlord hereunder shall not be deemed a recognition by Landlord that
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the person or official making such demand has any right or interest in or to
this Lease or on or to the premises.
(f) Landlord shall have the right to change the arrangement and location
of entrances or passageways, doors and doorways, and corridors, elevators,
stairs, toilets or other public parts of the building, and after reasonable
notice, to change the name. number or designation by which the building is
commonly known. Nothing herein contained, however, shall be deemed or construed
to impose upon the Landlord any obligation, responsibility or liability
whatsoever for the care, supervision or repair of the building or any part
thereof, unless herein otherwise provided.
(g) In the event of a refusal by the Tenant to permit an entry upon the
premises as in this paragraph provided, the Landlord and the Landlord's agents
may forcibly enter the same nevertheless without incurring any liability by
reason thereof.
20. The Tenant shall repair, at its own expense, all damage to or
destruction of any plate or window glass in the demised premises, and shall
maintain adequate plate glass insurance at its own expense for the benefit of
the Landlord. If the Tenant fails to repair the damage to any plate or window
glass in the demised premises, or fails or refuses to maintain adequate plate
glass insurance for the benefit of the Landlord, then the Landlord may repair
said damage or destruction or may insure the plate glass and charge the cost of
such repair or the cost of the premium for the plate glass insurance to the
Tenant and the amount thereof shall be deemed to be additional rent.
21. No vaults, vault space or space not within the property line of the
building is leased hereunder, anything contained in or indicated on any sketch,
blueprint or plan, or anything elsewhere in this Lease to the contrary
notwithstanding. Landlord makes no representation as to the location of the
property line of the building. All vaults and vault space and all space not
within property line of the building, which Tenant may be permitted to use and
occupy, is to be used and occupied under a revocable license, and if any such
license be revoked, or if the amount of such space be curtailed by any federal,
state or municipal authority, Landlord shall not be subject to any liability nor
shall Tenant be entitled to any compensation or diminution or abatement of rent
nor shall such revocation or curtailment be deemed a constructive or actual,
total or partial eviction.
22. Tenant will not at any time use or occupy the premises in violation of
the certificate of occupancy issued for the building, and in the event that any
department of the City or State of New York shall hereafter at any time contend
that the premises are used for a purpose which is a violation of such
certificate of occupancy, in that event Tenant shall, upon 5 days written notice
from Landlord, immediately discontinue such use of said premises. Failure by
Tenant to discontinue such use after such notice shall be considered a default
in the fulfillment of a covenant of this Lease and Landlord shall have the right
to terminate this Lease immediately and in addition thereto shall have the right
to exercise any and all rights and privileges and remedies given to Landlord
pursuant to the provisions of paragraph 25 hereof. The statement in this Lease
of the nature of the business to be conducted by Tenant in the demised premises
shall not be deemed or construed to constitute a representation or
10
guaranty by Landlord that such business is lawful or permissible under the
certificate of occupancy issued for the building or otherwise permitted by law.
23. The "sprinkler system" or any of its parts or appliances shall be
damaged or not in proper working order by reason of any act or omission of
Tenant. Tenant shall forthwith at its own expense restore the same to good
working condition; and if the New York Board of Fire Underwriters or the New
York Fire Insurance Exchange or any bureau, department or official of the state
or city government, require or recommend that any changes, modifications,
alterations or additional sprinkler heads or other equipment, be made or
supplied by reason of Tenant's business, or the location of partitions, trade
fixtures, or other contents of the demised premises or if any such changes,
modifications, alterations, additional sprinkler heads or other equipment,
become necessary to prevent the imposition of a penalty or charge against the
full allowance for a sprinkler system in the fire insurance rate as fixed by
said Exchange or by any fire insurance company. Tenant shall, at its expense,
promptly make and supply such changes, modifications, alterations, additional
sprinkler heads or other equipment.
24. (a) If at any time prior to the date herein fixed as the commencement
of the term of this Lease there shall be filed by or against Tenant in any court
pursuant to any statute either of the United States or of any State a petition
in bankruptcy or insolvency or for reorganization, or for the appointment of a
receiver or trustee of all or a portion of Tenant's property, or if Tenant makes
an assignment for the benefit of creditors, or petitions for or enters into an
arrangement, this Lease shall at the option of the Landlord, be cancelled and
terminated in which event neither Tenant nor any person claiming through or
under Tenant by virtue of any statute or order of any court shall be entitled to
possession of the demised premises and Landlord, in addition to the other rights
and remedies given by (c) hereof or by virtue of any other provision herein or
elsewhere in this Lease contained, or by virtue of any statute or rule of law,
may retain as liquidated damages any rent, security, deposit or monies received
by it from Tenant or others in behalf of Tenant.
(b) If at the date fixed as the commencement of the term of this Lease or
if at any time during the term hereof, there shall be filed by or against Tenant
in any court pursuant to any statute either of the United States or of any State
a petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of all or a portion of Tenant's property,
and within thirty (30) days thereafter Tenant fails to secure a discharge
thereof, or if Tenant makes an assignment for the benefit of creditors or
petitions for or enters into an arrangement, this Lease, at the option of
Landlord, exercised within a reasonable time after notice of the happening of
any one or more of such events, may be cancelled and terminated in which event
neither Tenant nor any person claiming through or under Tenant by virtue of any
statute or order of any court shall be entitled to possession or to remain in
possession of the premises but shall forthwith quit and surrender the premises
and Landlord, in addition to the other rights and remedies Landlord has by
virtue of any other provision herein or elsewhere in this Lease contained, or by
virtue of any statute or rule of law, may retain as liquidated damages, any
rent, security, deposit or monies received from Tenant or others in behalf of
Tenant.
11
(c) In the event of the termination of this Lease pursuant to (a) or (b)
hereof, Landlord shall forthwith, notwithstanding any other provisions of this
Lease to the contrary, be entitled to recover from Tenant as and for liquidated
damages an amount equal to the difference between the rent reserved hereunder
for the unexpired portion of the term demised and the then fair and reasonable
rental value of the demised premises for the same period. In the computation of
such damages the difference between any installment of rent becoming due
hereunder after the date of termination and the fair and reasonable rental value
of the demised premises for the period for which such installment was payable
shall be discounted to the date of termination at the rate of two per cent (2%)
per annum. If such premises or any part thereof be relet by the Landlord for the
unexpired term of this Lease, or any part thereof, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the amount of
rent reserved upon such reletting shall be deemed prima facie to be the fair and
reasonable rental value for the part or the whole of the premises so relet
during the term of the reletting. Nothing herein contained shall limit or
prejudice the right of the Landlord to claim 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 such time 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.
25. (a) If Tenant shall make default in fulfilling any of the covenants
of this Lease other than the covenants for the payment of rent or additional
rent and such default shall continue to exist for five days after notice thereof
by Landlord to Tenant, or if the premises become vacant or deserted. Landlord
may give Tenant three days notice of intention to end the term of this Lease and
thereupon, at the expiration of said three days the term under this Lease shall
expire as fully and completely as if that day were the day herein definitely
fixed for the expiration of the term, and Tenant will then quit and surrender
the premises to Landlord but Tenant shall remain liable as hereinafter provided.
(b) If the second notice provided for in (a) hereof shall have been given
and the term shall expire as aforesaid: or (1) if Tenant shall make default in
the payment of the rent reserved herein or any item of additional rent as and
when such rent or additional rent becomes due and payable or any part of either
or in making any other payment herein provided; or (2) if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the premises shall be taken or occupied or attempted to be taken or occupied by
someone other than Tenant; or (3) if Tenant shall be in default with respect to
any other lease between Landlord and Tenant; or (4) if Tenant shall fail to move
into or take possession of the premises within fifteen (15) days after the
commencement of the term of this Lease, then, and in any of such events Landlord
may without notice, re-enter the premises either by force or otherwise and
dispossess Tenant or the legal representatives of Tenant or other occupant of
the premises, by summary proceeding or otherwise. and remove their effects and
hold the premises as if this Lease had not been made and Tenant hereby waives
any notice of intention to re-enter or to institute legal proceedings to that
end. If Tenant shall be in default hereunder prior to the date fixed as the
commencement of any renewal or extension of this Lease then any renewal,
extension or other lease shall, at Landlord's sole option, be cancelled and
terminated.
12
(c) In case of any such default, re-entry, expiration or dispossess by
summary proceedings or otherwise, as provided above: (1) the rent shall become
due thereupon and be paid up to the time thereof together with such expenses as
Landlord may incur for legal expenses, attorneys' fees, brokerage, and putting
the premises in good order and in preparing the same for re-rental; (2) Landlord
may re-let the premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms which may at Landlord's option be
less than or exceed the period which would otherwise have constituted the
balance of the term of this Lease and may grant concessions or free rent; (3)
Tenant or the legal representatives of Tenant shall also pay Landlord as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between hereby reserved and
covenanted to be paid and the net amount, if any, of the rents collected on
account of the leasing of the premises for each month of the period which would
otherwise have constituted the balance of the term of this Lease. In computing
such liquidated damages there shall be added to the said deficiency such
expenses as Landlord may incur in connection with reletting, such as legal
expenses, attorneys' fees, brokerage and for keeping the premises in good order
or for preparing the same for reletting. Any such liquidated damages shall be
paid in monthly installments by Tenant on the rent day specified in this Lease
and any suit brought to collect the amount of the deficiency for any month shall
not prejudice in any way the rights of Landlord to collect the deficiency for
any subsequent month by a similar proceeding. Landlord, at its option, may make
such alterations and decorations in the premises as Landlord in its sole
judgment considers advisable and necessary for the purpose of reletting the
premises and the making of such alterations and decorations shall not operate or
be construed to release Tenant from liability hereunder as aforesaid. Landlord
shall in no event be liable in any way whatsoever for failure to relet the
premises, or in the event that the premises are relet, for failure to collect
the rent thereof under such reletting. In the event of a breach or threatened
breach by Tenant of any of the covenants or provisions hereof, Landlord shall
have the right of injunction and the right to invoke any remedy allowed at law
or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. The mention in this Lease of any particular remedy, shall
not preclude Landlord from using any other remedy, in law or in equity.
(d) Tenant for itself and on behalf of any and all persons or parties
claiming through or under the Tenant, including creditors, hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed for any cause,
or in the event of Landlord obtaining possession of the demised premises by
reason of the violation by Tenant of any of the covenants and conditions of this
Lease or otherwise.
26. If Tenant shall default in the performance of any covenant, term or
condition on Tenant's part to be performed in this Lease contained, Landlord may
immediately, or at any time thereafter, without notice, perform the same for the
account of Tenant. If Landlord at any time is compelled to pay or elects to pay
any sum of money, or do any act which will require the payment of any sum of
money, by reason of the failure of Tenant to comply with any provisions hereof,
or if Landlord is compelled to or does incur any expense including reasonable
attorneys' fees, instituting, prosecuting or defending any action or proceeding,
whether instituted by Landlord or Tenant, by reason of any cause whatsoever,
including a
13
default of Tenant hereunder, the sum or sums so paid by Landlord with all
interest, costs and damages, shall be deemed to be additional rent hereunder and
shall be due from Tenant to Landlord on the first day of the month following the
incurring of such respective expenses or at the Landlord's option on the first
day of any subsequent month.
27. Landlord or Landlord's agents have made no representations or promises
with respect to the said building or demised premises except as herein expressly
set forth. The taking possession of the premises by Tenant shall be conclusive
evidence, as against Tenant, that the demised premises and the building were in
good and satisfactory condition at the time such possession was taken. Tenant
has inspected the building and the demised premises and is thoroughly acquainted
with their condition and agrees to take same "as is."
28. Upon the expiration or other termination of the term hereof, Tenant
shall quit and surrender to Landlord the premises, broom clean, in good order
and condition, ordinary wear excepted. Tenant shall remove all property of
Tenant as directed by Landlord. If the last day of the term of this Lease or any
renewal thereof falls on Sunday or a legal holiday this Lease shall expire at 12
noon on the business day immediately preceding. Tenant's obligation to observe
or perform this covenant shall survive the expiration or other termination of
the term of this Lease. Any personal property of the Tenant or other occupant
which shall remain in the premises or building after the expiration or other
termination of the term shall be deemed to have been abandoned by the Tenant or
other occupant and either may be retained by the Landlord as its property or may
be disposed of in such manner as the Landlord may see fit. If such personal
property or any part thereof shall be sold, the Landlord may receive and retain
the proceeds of such sale and apply the same, at its option, against the
expenses of the sale, the cost of moving and storage, any arrears of rent or
additional rent payable hereunder and any damages to which the Landlord may be
entitled under paragraph 25 hereof or pursuant to law. In the event Landlord
shall notify Tenant not later than ninety (90) days after the expiration or
other termination of this Lease, Tenant shall restore the premises to the
condition existing immediately prior to the commencement of this Lease. Such
restoration shall include demolition of walls and other structures, construction
and erection of walls, ceilings and other structures, ceiling patching, duct-
work, sprinkler-head changes, electric work and such other alterations,
decorations or repairs as may be necessary to restore the premises to the
condition existing immediately prior to the commencement of this Lease.
29. Landlord covenants and agrees with Tenant that upon Tenant paying the
rent and additional rent and performing all the covenants and conditions
aforesaid, on Tenant's part to be observed and performed, Tenant shall and may
peaceably and quietly have hold and enjoy the demised premises for the term
aforesaid, subject, however, of the terms of this Lease, the ground and
underlying leases, if any, and mortgages hereinbefore mentioned, except that the
provisions hereof shall only apply so long as Landlord or any successor to
Landlord's interest is in possession and is collecting rent from Tenant but not
thereafter.
30. If the Landlord shall be unable to give possession of the demised
premises on the date of the commencement of the term of this Lease, such failure
to give possession shall not in any way affect the obligations of the Tenant
except that the rent and additional rent, reserved and covenanted to be paid
hereunder, shall not commence until possession of the
14
demised premises are made available for occupancy by the Tenant; nor shall such
failure to give or afford possession be construed in any way to extend the term
of this Lease. No liability whatever shall arise or accrue against the Landlord
by reason of its failure to deliver possession and the Tenant hereby releases
and discharges the Landlord from any claim for damage, loss or injury of every
kind whatever, for such period of time as Landlord may be unable to give or
deliver possession of the demised premises.
31. INTENTIONALLY OMITTED
32. The failure of Landlord to seek redress for violation of, or to insist
upon the strict performance of any covenant or condition of this Lease, or any
of the Rules and Regulations set forth on the inside cover of this Lease or
hereafter adopted by Landlord, shall not prevent a subsequent act, which would
have originally constituted a violation, from having all the force and effect of
an original violation. The receipt by Landlord of rent, additional rent or
other charges, with or without knowledge of the breach of any covenant or
condition of this Lease or the Rules and Regulations, shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the covenants,
conditions or Rules and Regulations against Tenant or any other tenant in the
building shall not be deemed a waiver of any such covenants, conditions or Rules
and Regulations. No provision of this Lease or the Rules and Regulations shall
be deemed to have been waived by Landlord, unless such waiver be in writing
signed by Landlord. No payment by Tenant or receipt by Landlord of any amount,
whether designated by Tenant as rent, past rent, additional rent, tax or
operating expense escalation charges under paragraph 33 or otherwise, shall be
binding upon Landlord and Landlord may apply any such amount, however designated
by Tenant, to rent, past rent, additional rent, tax or operating expense
escalation charges under paragraph 33 or otherwise, as Landlord in its sole
discretion may determine; nor shall any endorsement or statement on any check or
any letter or direction by Tenant or someone on its behalf, whether or not
accompanying any check or payment of any such items or charges, be deemed an
accord and satisfaction or binding upon Landlord, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance of
any such items or charges or pursue any other remedy provided in this Lease. The
acceptance of payment of any such items or charges by Landlord from any party
other than Tenant, or if such payment is made on behalf of Tenant by any party
other than Tenant, shall not constitute a waiver of the provisions of paragraph
3 respecting the assignment of the Lease or subletting of the premises. If the
term "Tenant" as used herein refers to more than one person, party, corporation,
company or other entity, Landlord may treat any breach of this Lease by one of
such parties as a breach by all.
33. (a) For the purposes of this paragraph, the term "tax year" shall
mean each consecutive 12-month period commencing July 1st, all or any part of
which falls within the term of this Lease; the term "lease year" shall mean each
calendar year, all or any part which falls within the term of this Lease. If the
first or the final tax year or lease year shall contain less than 12 months, the
additional rent payable under subdivisions (b) and (c) of this paragraph with
respect to such tax years or (d) with respect to such lease years shall be pro-
rated by multiplying such amount by a fraction which has as a numerator the
number of months in such tax or lease year and a denominator of 12. In the event
Landlord has not computed the operating expenses for the next-to-last or last
lease year prior to the expiration
15
date of this Lease, the additional rent payable under subdivision (d) of this
paragraph for such next-to-last or last lease year shall be based upon either
the operating expenses for the last full lease year where such figures are
available, or Landlord, at its option, shall have the right to estimate the
operating expenses for such next-to-last or last lease year, and the additional
rent due, under subdivision (d) of this paragraph for such next-to-last or last
lease year shall be due and payable by Tenant to Landlord sixty (60) days prior
to the expiration or earlier termination of this Lease.
(b) In the event that the real estate taxes payable with respect to the
building and the land on which it is located, for any tax year in which this
Lease shall be in effect (inclusive of any certiorari fees paid or to be paid
with respect thereto) shall be greater than the amount of such taxes due and
payable for the tax year next preceding the term commencement date (sometimes
hereinafter referred to as "base tax year") whether by reason of an increase in
either the tax rate or the assessed valuation, or by reason of the levy,
assessment or imposition of any tax on real estate as such, not now levied,
assessed or imposed, or for any other reason, Tenant shall pay to Landlord, when
billed, after the date on which the real estate taxes for such tax year shall be
fixed and determined, as additional rent for the lease year in which such date
occurs, an amount equal to .898% of the difference between the amount of such
tax or installment and the corresponding tax or installment paid for the base
tax year. The base tax year. as referred to in this subparagraph,
notwithstanding anything to the contrary otherwise contained within, shall, for
the purposes hereof, be deemed to mean the tax year 1997/98.
(c) Tenant shall also pay to Landlord, within thirty (30) days after the
same shall be payable by Landlord and as additional rent for the lease year in
which the same shall be so payable, an amount equal .898% of any assessment or
installment thereof for public betterments or improvements which may be levied
upon the said land and building.
(d) In the event that the operating expenses (as hereinafter defined)
incurred by Landlord during any lease year shall be greater than the operating
expenses incurred by Landlord during the calendar year next preceding the term
commencement date (sometimes hereinafter referred to as "base expense year"),
Tenant shall pay to Landlord, as additional rent for such lease year, when
billed, an amount equal to .898% of such increase. For the purposes of this
subparagraph, "operating expenses" shall mean any or all of the following,
either paid or incurred by Landlord with respect to the building of which the
demised premises form a part: salaries, wages, medical, surgical and general
welfare benefits (including group life insurance), pension plan contributions,
health, disability and workmen's compensation insurance and payroll taxes of
employees of Landlord engaged in the operation and maintenance of the building
of which the demised premises are a part ("labor costs"), electric consumption
and demand charges (except that only 50% of the increase in the rate schedule of
rates [which Landlord and Tenant attribute to the operation of Landlord's
electric plant, machinery or equipment and not Tenant's use of electricity in
its premises] in any lease year, as determined by an independent electrical
engineer or firm, selected by Landlord, with respect to the entire building,
shall be included herein if Tenant has had a rent increase under paragraph 17(a)
in any lease year, and the base expense year electric charge shall also be
reduced by 50%), steam, utility taxes, casualty and liability, fire, boiler or
other insurance, repairs (structural and non-structural) and maintenance,
alterations, changes, additions and
16
improvements, whether made by reason of compliance with laws, regulations and
requirements of any public or administrative authorities or insurance companies
or otherwise made (except that the cost for structural repairs, alterations,
changes and additions, at Landlord's sole option, shall be charged over the
balance of Tenant's lease term or lesser period of time), building cleaning
supplies, uniforms and dry cleaning, window cleaning, management fees (whether
paid or not, if Landlord or a wholly-owned entity manages the building) at the
rate charged by independent agents for the management of first-class office
buildings in the area, service contracts with independent contractors,
telephone, telegraph, stationery, advertising, legal fees incurred in connection
with certiorari proceedings (if not previously charged under paragraph 33(b)
above) and all other expenses paid or incurred in connection with the operation
of the building and the demised premises. Landlord and Tenant acknowledge and
agree that the Repairs and Maintenance heading, as indicated in the Summary
Schedule, for the base expense year 1996, will be reduced by a total of
$500,000.00 (rounded off), to reflect Landlord's non-recurring 1996 costs in
that category, which Landlord and Tenant agree shall constitute the total of
Landlord's non-recurring expenditures for 1996 and shall be deemed final and
conclusive for the purpose hereof. The calendar year next preceding the term
commencement date, or base expense year as referred to in this subparagraph,
notwithstanding anything to the contrary otherwise contained herein shall, for
the purposes hereof, be deemed to mean the calendar year 1996.
(e) Landlord shall have the further right, at its option, to xxxx Tenant
monthly, in any lease year during the term of this Lease, for 1/12 of its share
of the difference between the operating expenses for the Tenant's base expense
year and the previous calendar year's operating expenses, plus the then current
calendar year's estimated expense increase which shall not be less than the
difference between the preceding two calendar years' operating expenses. At the
end of each such lease year, Landlord shall xxxx the Tenant for the difference
between what Tenant paid during such lease year and the amount computed to be
due for such lease year, which shall be paid when billed, or conversely, if
Tenant's payments exceeded the amount due for such lease year, Landlord shall
then refund such difference to Tenant. Landlord shall furnish Tenant with a
brief Summary Schedule in each lease year, which shall be deemed final and
conclusive if not contested by Tenant within 30 days after delivery thereof to
Tenant.
34. It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, any extension or renewal thereof or the Tenant's use
or occupancy of said premises.
35. Tenant shall not ship or receive goods, merchandise or inventory other
than for sample purposes, or use the public corridors of the building to ship or
receive same and Tenant shall not at any time use any hand trucks or other
wheeled vehicles in the public or other corridors of the building.
36. Except as otherwise in this Lease provided, any notice, xxxx or
statement by either party to the other may be given or sent and shall be deemed
to have been duly given or
17
sent if either delivered personally or mailed in a post-paid envelope, addressed
to the Landlord at 0000 Xxxxxxxx, Xxx Xxxx, X.X., and of the Tenant at the
premises (or at the Tenant's present address as above set forth, if mailed prior
to the Tenant's occupancy of the premises), or if any address for notices shall
have been truly changed as hereinafter provided, if mailed to the party at such
changed address. Either party may at any time change the address for notices,
bills or statement by delivering or mailing, as aforesaid, a notice stating the
change and setting forth the changed address.
Should the term "Tenant", as used in this Lease, refer to more than one
person, party, corporation, company or other entity, any notice, xxxx or
statement given or sent as aforesaid to any one of such entities shall be deemed
to have been duly given or sent to the Tenant.
37. The Tenant has deposited with the Landlord the sum of $44,166.66 as
security for the performance by the Tenant of the terms of this Lease. The
Landlord may use, apply, or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional rent
or other sum as to which the Tenant is in default in respect of any of the terms
of this Lease, including, but not limited to, any damages or deficiency in the
reletting of the demised premises, whether such damages or deficiency accrued
before or after summary proceedings or other reentry by the Landlord. including;
but not limited to, leasing commissions incurred in connection with the leasing
of the premises and legal or other fees which Landlord may incur. In the event
that the Tenant shall comply with all of the terms of this Lease, the security
shall be returned to the Tenant after the date fixed as the end of the Lease and
after delivery of possession of the demised premises to the Landlord. In the
event of a sale or lease of the premises of which the demised premises forms a
part, the Landlord shall have the right to transfer the security to the vendee
or lessee and the Landlord shall thereupon be released from all liability for
the return of such security and the Tenant shall look solely to the new landlord
for the return of such security. The Tenant shall not assign or encumber the
money deposited as security, and neither the Landlord nor its successors or
assigns shall be bound by any such assignment or encumbrance.
38. The marginal notes are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope or intent of
this Lease nor in any way affect this Lease.
39. (a) The term "Landlord" as used in this Lease means only the owner
or the mortgagee in possession for the time being of the land and building (or
the owner of a lease of the building), 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 other disposition of said land and building or said leasehold, the
said Landlord be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord 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, that the purchaser or the lessee of the building has assumed and
agreed to carry out any and all covenants and obligations of Landlord hereunder
18
(b) The term "business days" shall be construed to mean Monday to Friday
inclusive, excluding holidays.
The words "re-enter" and "re-entry" as used in this Lease are not
restricted to their technical legal meaning.
(d) The term "gross square feet" if and when used herein, shall be deemed
to mean and include all the space taken for stairways, stairwells, lobbies,
elevator shafts, lavatories, washrooms, utilities, air-conditioning and
mechanical equipment in building, whether or not all or any part of such space
or equipment is located in the demised premises, the determination of which is
computed by Landlord, shall be final and conclusive.
(e) The term "additional rent" as used herein, shall be deemed to mean any
and all costs, charges, expenses, adjustment rent and electricity which Tenant
assumes, agrees or is obligated to pay to Landlord or others pursuant to the
provisions of this Lease or any other agreement, and in the event of the non-
payment thereof, Landlord shall have all of the rights and remedies with respect
thereto as provided for herein or by applicable law in case of the non-payment
of annual rent.
40. The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and their respective heirs,
distributees, executors, administrators, successors, and, except as otherwise
provided in the Lease their assigns.
41. This Lease contains the entire agreement between the parties and may
not be modified or amended except by agreement in writing signed by the parties
hereto.
42. The parties herein agree that NO BROKERS brought about or had any
connection with the procuring, execution and delivery of this Lease.
43. The riders annexed hereto as paragraphs ____ to ____are incorporated
herein and made a part of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this Lease as of the day and year first above written.
XXXXXXXXX ASSOCIATES "Landlord"
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
General Partner
PERISCOPE I SPORTSWEAR LLC
By: /s/ Xxxxx Xxxxx, President
--------------------------------
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Rider to paragraph 3 hereof:
Landlord herewith consents to an assignment of this Lease by Tenant to any
corporation, person or other entity which may purchase substantially all of
Tenant's stock or assets, provided that any such assignment shall contain an
assumption by the assignee-purchaser of all of the terms, covenants and
conditions of this Lease to be performed by Tenant. Tenant agrees that no such
assignment shall be effective unless and until Tenant gives Landlord ten (10)
days prior written notice thereof, together with an original executed
counterpart copy of the assignment.
Rider to paragraph 7 hereof:
Tenant's required indemnification of Landlord shall be restricted to injury
or damage occurring in the demised premises and to injury or damage caused to
persons or property by Tenant, its servants, employees, agents, licensees or
contractors in the ordinary course of duties performed in furtherance of
Tenant's business activities within the building known as 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx.
Rider to be added at the end of paragraph 17(c) hereof:
Notwithstanding anything to the contrary contained herein, Landlord agrees
it will not discontinue the supply of electric current to Tenant unless, at the
same time, landlord disconnects electric to all tenants above the ground floor.
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XXXXXXXXX ASSOCIATES
(A LIMITED PARTNERSHIP)
0000 XXXXXXXX
XXX XXXX. N.Y. "10018
December 5, 1997
Periscope I Sportswear LLC
0000 00xx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Gentlemen:
Reference is made to that certain lease between you, as Tenant, and the
undersigned, as Landlord, dated February 14, 1997, covering premises known as
Unit "620" on the 6th floor and Unit "1025" on the 10th floor in 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx ("Lease").
You have requested and we have agreed to lease you Unit "1022" on the 10th
floor in 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, ("Additional Premises") as indicated
by the red hash marks on the floor plan annexed hereto, upon all of same terms,
conditions and provisions as contained in the Lease, except as otherwise
hereinafter provided:
1. The annual rental for the Additional Premises shall be $40,600.00,
payable at the time and in the manner as set forth in the Lease, and the term of
the lease for the Additional Premises shall be from February 1, 1998 through
April 30, 2002.
2. The base rent in paragraph 17(c) for the Additional Premises shall be
$39,440.00, from February 1, 1998 through April 30, 2002.
3. The percentage figure for the Additional Premises in paragraphs 33(b),
(c) and (d) of the Lease shall be .121%, the base tax year shall be 1997/98, and
the base expense year shall be 1997 from February 1, 1998 through April 30,
2002.
4. The security deposit in paragraph 37 for the Additional Premises shall
be 6,766.66.
5. Landlord agrees to make the following alterations and repairs in the
demised premises as per Tenant's plan: erect sheetrock partition, install one
closet with sliding door, including standards and formica shelves, install seven
electrical outlets, install building standard single glass entrance door,
install building standard carpet and base, and paint the demised premises in
standard building color.
The Lease, as modified herein, shall continue in full force and effect for
the Lease term.
Please signify your consent to the foregoing by signing in the place
provided below.
Very truly yours,
XXXXXXXXX ASSOCIATES
APPROVED AND ACCEPTED; /s/ Xxxxxx X. Xxxxxxxxx
------------------------
PERISCOPE I SPORTSWEAR LLC Xxxxxx X. Xxxxxxxxx
By: /s/ Xxxxx Xxxxx, Pres.
---------------------------
(Title)
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