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EXHIBIT 10.7
AGREEMENT of Sublease made as of this 8th day of December, 1997, by and
between Xxx Xxxx Partners, a New York general partnership with offices at 000 X.
00xx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter the "Sublessor") and Xxxxxx
Communications Inc. with offices at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
(hereinafter the "Subtenant").
W I T N E S S E T H:
- - - - - - - - - - - - - - -
Whereas:
I. On November 12, 1991, the 41 Madison Company, as landlord,
(hereinafter the "Principal Landlord") entered into a lease
with Xxx Xxxx Designs, Ltd., as tenant, for the premises
located on the thirtieth (30th) floor of the building at 00
Xxxxxxx Xxxxxx, (hereinafter the "Subleased Premises"). The
term of said lease (hereinafter the "Principal Lease")
commenced on December 1, 1992, and will expire on November
30, 2002.
II. By agreement dated January 1, 1992, Xxx Xxxx Designs, Ltd. assigned all
its rights and obligations under the Principal Lease to Sublessor. Such
Agreement shall hereinafter be referred to as the "Assignment and
Assumption Agreement".
III. Sublessor desires to sublet and Subtenant desires to occupy the
Subleased Premises.
The parties hereto, in consideration of the premises and the mutual
agreements hereinafter set forth, agree as follows:
1. Subleased Premises, Term and Possession.
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Sublessor hereby sublets to Subtenant and Subtenant hires from
Sublessor the Subleased Premises, which Subleased Premises consists of the
entire demised premises leased under the Principal Lease, for a term ("Sublease
Term") of approximately five (5) years. The Sublease Term shall commence on a
date to be specified by Sublessor by notice to Subtenant ("Commencement
Notice"), which date shall not be sooner than 30 days after receipt by Subtenant
of the Commencement Notice ("Sublease Commencement Date"). In no event shall
Sublessor be subject to any liability for failure to deliver possession on any
particular date. If Sublessor is delayed in delivering the Premises due to force
majeure, Subtenant shall grant a reasonable extension. If a Commencement Notice
is not given by June 1, 1998 Subtenant may cancel this Sublease at any time by
written notice to Sublessor sent prior to the receipt of a Commencement Notice.
Upon such
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cancellation by Subtenant, Sublessor shall Return to Subtenant all monies paid
on account of this Sublease and neither party shall have any further obligation
to the other. The Sublease Term shall expire on November 29, 2002 ("Sublease
Expiration Date"). The Subleased Premises will be delivered to Subtenant in good
order and repair, vacant, broom clean (except Sublessor may leave wall to wall
carpeting) and with all building systems in good working order.
2. Consent of Landlord.
-------------------------
Promptly after the execution of this Agreement, Sublessor shall request
that Principal Landlord consent to this Agreement -- and Sublessor shall use its
best efforts to obtain such consent. Subtenant agrees to use its best efforts in
all respects regarding such request for consent, including the delivery to
Principal Landlord of such financial information as Sublessor shall reasonably
require regarding Subtenant. The term "best efforts" as used herein shall not be
deemed to require any expenditure of funds.
The parties agree that if for any reason Principal Landlord does not
consent to this Agreement by the sixtieth day after the date hereof, either
party, by written notice to the other, may declare this Agreement null and void
whereupon neither party shall have any obligation to the other. In the event of
such termination Sublessor shall promptly return to Subtenant all monies paid by
Subtenant to Sublessor on account of this Agreement.
In no event shall this Agreement become effective, nor shall possession
of the Subleased Premises be delivered, until the consent of Principal Landlord
has been obtained.
3. Applicability of Principal Lease.
--------------------------------
This Agreement is subject to the covenants, terms and conditions of the
Principal Lease. A copy of the Principal Lease and the Assignment and Assumption
Agreement have been attached hereto in Exhibit A.
From and after the Commencement Date, Subtenant agrees to comply with
all of the terms and provisions of the Principal Lease to be performed by the
Tenant thereunder with regard to the Subleased Premises and agrees that all
rights and benefits of Tenant under the Principal Lease will accrue to
Subtenant. Subtenant further agrees during the term of this Agreement, not to do
or commit or suffer to be done or committed, or fail to do any acts or things,
or create or suffer to be created, any conditions that might create a default,
breach or failure on the
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part of Sublessor under any of the terms, covenants or conditions of the
Principal Lease or render Sublessor liable for any charge or expense thereunder,
including, without limitation, the removal of any Alteration (as defined in the
Principal Lease).
Notwithstanding anything to the contrary contained in this Agreement or
the Principal Lease, Subtenant shall not be obligated to remove, or be liable
for, any mechanic's lien filed against the Subleased Premises or the Building
(as defined in the Principal Lease) or the Real Property (as defined in the
Principal Lease) unless such mechanic's lien shall have been filed with respect
to work claimed to have been done for, or materials claimed to have been
furnished to, Subtenant.
4. Remedies, Duties and Obligations of Sublessor and
Subtenant.
-------------------------------------------------
Sublessor agrees to comply with all the terms and provisions to which
it is subject as tenant under the Principal Lease and shall not take any action
which would constitute a default under the Principal Lease or this Agreement.
The remedies, duties and obligations of Sublessor and Subtenant shall
be the same as the respective remedies, duties and obligations of the landlord
and tenant under the Principal Lease except as herein otherwise expressly
provided for.
Subtenant hereby agrees to indemnify and hold harmless Sublessor from
claims and demands in connection with, arising out of or resulting from damages
or injuries to persons or property in or about the Subleased Premises during the
occupancy by Subtenant or its successors or assigns, for the term of this
Agreement unless such damage or injury is caused by Sublessor or its agents.
Sublessor hereby agrees to indemnify and hold harmless Subtenant from
claims and demands in connection with, arising out of or resulting from (i)
Sublessor's breach of any of its obligations or default under this Agreement or
the Principal Lease (unless caused by Subtenant or its agents) or (ii) the gross
negligence or willful misconduct of Sublessor or its agents.
5. Rent and Additional Rent.
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(a) Commencing with the Sublease Commencement Date, Subtenant shall pay
to Sublessor as base rent ("Sublease Fixed Rent") for the Subleased Premises:
One hundred Ninety Three Thousand Nine Hundred Seventy One
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and 48/100 ($193,971.48) per annum payable in equal monthly
installments of Sixteen Thousand One Hundred Sixty Four and 29/100
Dollars ($16,164.29), subject to adjustments as provided in the
Principal Lease. (Sublessor covenants that any Subletting Profit (as
such term is defined in the Principal Lease) shall be paid to Principal
Landlord.
The monthly installments of base rent shall be payable in advance on
the first day of each month during the term of this Agreement. The first
payment, however, in the amount of a full monthly installment, shall be payable
upon execution hereof and shall be credited to the first rents payable
hereunder;
(b) In addition to the base rent provided for in subparagraph (a) of
this paragraph 5, Subtenant covenants and agrees to pay to Sublessor on five (5)
days notice as additional rent, any and all sums Sublessor is required to pay
pursuant to the Principal Lease during or attributable to the term of this
Agreement; and
(c) All additional rent payable by Subtenant shall be payable by
Subtenant to Sublessor at such times as Sublessor is required to make such
payments to the Principal Landlord.
(d) The rent shall be payable by Subtenant to Sublessor at Sublessor's
address, set forth in the first paragraph of this Agreement, or at such other
address as Sublessor may designate in writing from time to time.
6. Security.
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Upon receipt of the consent of the Principal Landlord, Subtenant shall
deliver to Sublessor its check in the amount of Thirty Two Thousand Three
Hundred Twenty Eight and 58/100 Dollars ($32,328.58) (the "Security Deposit"),
as security for the faithful performance and observance by Subtenant of the
terms, provisions and conditions of this Agreement. The Security Deposit shall
be held in a separately segregated interest bearing account of Sublessor. It is
agreed that in the event Subtenant defaults in any of the terms, provisions and
conditions of this Agreement,
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including, but not limited to the payment of base rent and additional rent,
Sublessor may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any base rent and additional
rent or any other sums as to which Subtenant is in default or for any sums which
Sublessor may expend or is required to expend by reason of Subtenant's default
in respect of any of the terms, covenants or conditions of this Agreement. In
the case of every such use, application or retention, Subtenant shall, on
demand, pay to Sublessor the sum so used, applied or retained which shall be
added to the security deposit so that same shall be replenished to its former
amount. In the event that Subtenant shall fully and faithfully comply with all
of the terms, provisions, covenants and conditions of this Agreement, the
security shall be returned to Subtenant after the expiration date of this
Agreement and after delivery of possession of the entire Subleased Premises to
Sublessor, as required hereunder.
7. Use of Premises.
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It is understood, and Subtenant so agrees, that the Subleased Premises
shall be used and occupied only for general and executive offices (the "Sublease
Authorized Use"). All references in the Principal Lease to the use of the
demised premises shall be deemed to refer to the Sublease Authorized Use. The
reference in Section 2.02 of the Principal Lease to Section 2.01 shall be deemed
to mean this Paragraph for purposes of this Agreement.
8. Termination of Principal Lease.
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If the Principal Lease shall terminate or expire through no fault of
either party, this Agreement shall automatically terminate and expire
simultaneously therewith and thereupon Sublessor shall return the Security
Deposit to Subtenant and neither party shall have any claim against the other
for any matter arising out of this Agreement after such date of termination
except as otherwise provided herein.
In the event that Sublessor defaults under the Principal Lease,
Subtenant shall have the right, but shall not be obligated, to cure the default
for the account of Sublessor. If Subtenant elects to pay any sum of money or to
do any act which will require the payment of any sum of money, including
reasonable attorney fees, Sublessor shall reimburse Subtenant within 10 days
after demand for all such amounts.
9. Services and Sublessor's Obligations.
------------------------------------
Subtenant shall have the benefit of all repairs,
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restorations, materials and services which are required to be furnished by the
Principal Landlord to the Subleased Premises pursuant to the provisions and
subject to the limitations and conditions in the Principal Lease and in this
Agreement. In the event that the Principal Landlord shall fail to render any or
all of such services, Subtenant shall not be entitled (a) to require Sublessor
to furnish such services; (b) to obtain an abatement of its rent, unless
Sublessor shall obtain such abatement; or (c) to claim damages from Sublessor
for any injury or injuries incurred by such failure of Principal Landlord.
However, upon receipt of written notice from Subtenant specifying the failure of
such services by Principal Landlord, Sublessor shall promptly notify the
Principal Landlord thereof and request that such service be restored forthwith.
In the event such services are not restored, then, Subtenant shall have the
right to, at Subtenant's sole cost and expense (including but not limited to
reasonable attorneys' fees), institute and prosecute such action or proceeding
against the Principal Landlord as Subtenant shall reasonably deem proper and
necessary to make any such repairs or restorations or to supply any such
materials and services to the Subleased Premises. At the option of Subtenant,
Sublessor shall at Subtenant's cost and expense (including but not limited to
reasonable attorneys' fees), commence an action to enforce the Principal
Landlord's obligations under the Principal Lease. Sublessor hereby assigns to
Subtenant, without representing the effectiveness of such assignment, all rights
and remedies it may have against the Principal Landlord to require the Principal
Landlord to restore or furnish such services to the Subleased Premises on the
condition that Subtenant (a) shall not then be in material default hereunder
after all notice and grace periods, (b) shall not take any action that shall be
a breach under the Principal Lease and (c) shall, prior to taking any action
hereunder, advise Sublessor of its contemplated action and keep Sublessor
advised of all further actions and developments relating thereto.
Notwithstanding anything herein to the contrary, it is understood and agreed
that Sublessor has not assumed and does not assume any of the obligations,
duties or responsibilities on the Principal Landlord's part to be observed and
performed as provided in the Principal Lease and Sublessor shall not have any
obligations, duty or responsibility to Subtenant in regard thereto or in
connection therewith. Sublessor covenants to comply with its obligations under
the Principal Lease in order to avoid a default thereunder.
10. Assignment and Further Subleasing.
---------------------------------
Notwithstanding any provisions contained in the Principal Lease or this
Agreement, Subtenant covenants and agrees that it will not, by operation of law
or otherwise assign, mortgage or encumber its interest in this Agreement or
sublet the whole or
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any part of the Subleased Premises or permit any part thereof to be used by
others, without in each instance obtaining the prior written consent of
Sublessor which shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Subtenant, without Sublessor's consent,
shall be permitted to, assign (by operation of law or otherwise) this Sublease
to an entity owned or controlled by or under common control with Subtenant in
connection with a proposed public offering of such affiliate or its parent. Any
assignment under this provision shall require the prior consent of Overlandlord
as provided in Article 11 of the Xxxxxxxxx. Sublessor agrees to request
Overlandlord's consent to an assignment under this provision at the time
Sublessor requests Overlandlord's consent to this Sublease.
The direct or indirect transfer in the aggregate of a fifty percent
(50%) interest (whether stock, partnership interest, rights to profit or
capital, voting power, other beneficial interest or otherwise) in Subtenant
shall be deemed an assignment hereunder.
If this Agreement is assigned, or if the Subleased Premises or any part
thereof shall be underlet or occupied by anybody other than Subtenant, Sublessor
may collect rent from the assignee, under-tenant or occupant, and apply the net
amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, under-tenant or occupant as tenant, or a
release of Subtenant from the further performance by Subtenant of covenants on
the part of Subtenant herein contained. The consent by Sublessor to an
assignment or underletting shall not in any way be construed to relieve
Subtenant from obtaining the express consent in writing of Sublessor to any
further assignment or underletting.
11. Quiet Possession.
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Sublessor covenants and agrees with Subtenant that upon Subtenant's
payment of rent and additional rent and performance of all of the terms,
covenants and conditions on Subtenant's part to be observed and performed,
Subtenant may peaceably and quietly enjoy the Subleased Premises, subject,
nevertheless, to the terms and conditions of this Agreement and the Principal
Lease.
12. Notices.
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All notices or other communications given under any provisions of this
Agreement shall be in writing and shall be deemed to have been duly given upon
receipt of same when mailed
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by registered or certified mail, return receipt requested, addressed to
Subtenant, to Subtenant's address first set forth in this Agreement, Attn: Xx.
Xxxxxx Xxxxxxxx, Executive Vice President, Human Resources/Operations, copies of
default notices only to Xxxxxx, Xxxxxxxxx & Xxxxxxxxxxx LLP, Attn: Xxxxxxx X.
Xxxxx, Esq. or to such other place as Subtenant may designate by written notice
to Sublessor, and to Sublessor at Sublessor's address first set forth in the
Agreement or to such other addresses as may have been specified in writing by
notice duly given by Sublessor to Subtenant.
13. Consent.
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Whenever the consent of the Principal Landlord is required pursuant to
the Principal Lease prior to Subtenant's performing any act, Subtenant shall
first obtain the consent of the Principal Landlord prior to requesting
Sublessor's consent which shall also be required; provided, however, that if
Principal Landlord provides its consent, Sublessor's consent shall not be
unreasonably withheld, provided further however, that Sublessor shall not be
required to agree to any alteration unless Principal Landlord agrees that
Sublessor shall have no duty to restore any such alteration.
If Sublessor at any time withholds or delays its consent in respect of
this Agreement and the provisions of this Agreement require Sublessor to not
unreasonably withhold or delay such consent and it is established by a court or
body having jurisdiction that Sublessor has been unreasonable in violation of
such provisions, then the only effect of such finding shall be that Sublessor
shall be deemed to have given its consent as of the date of such finding
(subject to any appeals to which Sublessor may be entitled). Sublessor shall not
in any case be liable to Subtenant or any other person in any respect for money
damages or have any other liability to Subtenant or any other person by reason
of any withholding or delay of such consent. At the request of Subtenant any
dispute between the parties regarding Sublessor's consent shall be submitted to
the American Arbitration Association and the costs thereof shall be shared
equally by the parties.
14. Brokerage.
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Subtenant and Sublessor each warrant and represent that it did not
consult or deal with any brokers with regard to this transaction. Subtenant and
Sublessor each agree to indemnify and hold the other harmless from all
liability, expense, loss, cost or damage, including reasonable legal fees, that
may arise by reason of any broker's claims, demand or suits resulting from the
breach of the herein representation or warranty. This
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indemnification shall survive the termination and/or earlier
expiration of this Agreement.
15. Paragraphs of Principal Lease Not
Applicable to Agreement.
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(a) The following paragraphs contained in the Principal Lease shall not
be deemed incorporated within the Agreement and no rights or benefits provided
for in said paragraphs shall be accrued to the benefit of Subtenant:
(i) Any provisions inconsistent with the intent and structure
of this Agreement, including without limitation, if
applicable, security or term.
(ii) For the purposes of this Agreement, Section 1.03.
(b) In order to insure that Sublessor shall have sufficient time within
which to transmit to the Principal Landlord any notices or demands received from
Subtenant, and to transmit to Subtenant any notices or demands received from the
Principal Landlord, and to further insure that Sublessor shall have sufficient
time to cure any breach by Subtenant of the provisions hereof before the
Sublessor shall itself be in default under the Principal Lease, the following
provisions shall apply:
Wherever in the Principal Lease a time is specified within which the
tenant thereunder must give notice or make a demand following an event, or
within which tenant must respond to any notice, request or demand previously
given or made by landlord thereunder, or to comply with any obligation on
tenant's part thereunder, such time is hereby changed (for the purpose on
incorporation into this Agreement) by subtracting three (3) business days
therefrom, unless such time limit is ten (10) days or less, in which event it
shall be shortened by two (2) days (but in no event less than twenty-four (24)
hours).
Wherever in the Principal Lease a time is specified within which
landlord thereunder must give notice or make a demand following an event, or
within which landlord must respond to any notice, request or demand previously
given or made by tenant thereunder, or to comply with any obligation on
landlord's part thereunder, such time is hereby changed (for the purpose of
incorporation into this Agreement) by adding three (3) business days thereto.
Whenever in the Principal Lease a time is specified for allowing tenant
the right to take any action after the giving of notice or the making of any
demand by tenant thereunder the same
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is hereby changed (for the purpose of incorporation into this Agreement) by
adding three (3) business days thereto, and wherever in the Principal Lease a
time is specified for allowing the landlord the right to take any action after
the giving of any notice or the making of any demand by the landlord thereunder,
such time is hereby changed (for the purpose of incorporation into this
Agreement) by subtracting three (3) business days therefrom, unless such time
limit is ten (10) days or less, in which event it shall be shortened by two (2)
days (but in no event less than twenty-four (24) hours).
16. Definitions of Terms.
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Unless otherwise defined in this Agreement, all capitalized terms shall
have the same meaning or definition as in the Principal Lease. All references
contained in the Principal Lease to "Commencement Date", "Expiration Date",
"Demised Premises", "Demised Term" and "Fixed Rent" shall be deemed to mean
"Sublease Commencement Date", "Sublease Expiration Date", "Subleased Premises",
"Subleased Term", and "Subleased Fixed Rent", respectively.
17. Representations and Covenants.
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(a) Sublessor represents and warrants to Subtenant that (i) the
Principal Lease is in full force and effect, and has not been modified or
amended, and (ii) to the best knowledge of Sublessor neither Sublessor nor
Principal Landlord is in default under the Principal Lease.
(b) Sublessor covenants, on the condition that Subtenant shall not then
be in material default hereunder after all notice and grace periods, that it
will not amend or terminate, or surrender its interest as tenant under the
Principal Lease without the consent of Subtenant (unless same is required
pursuant to the terms of the Principal Lease), and it will not do anything that
would constitute a default under the Principal Lease.
18. Directory Listings.
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Subtenant shall be entitled to all directory listings that
Sublessor is entitled to under the Principal lease.
19. Captions of Sections.
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The captions of the various sections in this Agreement are inserted
only as a convenience and for reference and in no way define, limit or describe
the scope of this Agreement or the extent of any provision thereunder.
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20. Entire Agreement.
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This Agreement constitutes the entire agreement between the parties and
there are no verbal or collateral understandings, agreements, representations or
warranties not expressly set forth herein.
IN WITNESS WHEREOF, this Agreement has been duly executed on the day
and year first above written.
X. XXXXXXXX, INC. for
XXX XXXX PARTNERS,
its division
By: /s/Signature Illegible
XXXXXX COMMUNICATIONS INC.
By: /s/ Xxxxxx Xxxxxxxx
Executive V.P.
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EXHIBIT A
LEASE
BETWEEN
41 MADISON COMPANY
OWNER
AND
XXX XXXX DESIGNS, LTD.
TENANT
Portion of Thirtieth (30th) Floor
NEW YORK MERCHANDISE MART*
00 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX
Service Xxxx
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LEASE dated as of the 12th day of NOVEMBER, 1991 between 41 MADISON
COMPANY, a New York partnership having its principal office at 000 Xxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, as landlord (sometimes
hereinafter referred to as "Owner"), and XXX XXXX DESIGNS, LTD., a New York
corporation having its principal office at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(referred to as "Tenant").
WITNESSETH:
Owner and Tenant hereby covenant and agree as follows:
ARTICLE 1
DEMISE, PREMISES, TERM, RENTS
Section 1.01. Owner hereby leases to Tenant and Tenant hereby hires
from Owner that portion of the thirtieth (30th) floor which is indicated by
outlining and diagonal markings on the floor plan identified as Exhibit 1;
initialled by the parties, annexed hereto and made a part hereof in the building
located at the southeast corner of Madison Avenue and East 26th Street, Borough
of Manhattan, City of New York, known as 00 XXXXXXX XXXXXX (said building is
referred to as the "Building", and the Building, together with the plot of land
upon which it stands is referred to as the "Real Property"), at the annual
rental rate or rates set forth in Section 1.03, and upon and subject to all of
the terms, covenants and conditions contained in this Lease. The premises leased
to Tenant, together with all appurtenances, fixtures, improvements, additions
and other property attached thereto or installed therein at the commencement of,
or at any time during, the term of this Lease, other than Tenant's Personal
Property (as defined in Article 4), are referred to, collectively, as the
"Demised Premises" The Demised Premises is the same portion of the thirtieth
(30th) floor of the Building now occupied by Tenant pursuant to "Tenant's
Existing Lease" defined in Section 38.01
Section 1.02. A. The Demised Premises are leased for a term (referred
to as the "Demised Term") to commence on December 1, 1992 and to end on November
30, 2002, unless the Demised Term shall sooner terminate pursuant to any of the
terms, covenants or conditions of this Lease or pursuant to law.
B. The date upon which the Demised Term shall commence pursuant to
subsection A of this Section is referred to as the "Commencement Date", and the
date fixed pursuant to said subsection A as the date upon which the Demised Term
shall end is referred to as the
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"Expiration Date".
C. Tenant waives any right to rescind this Lease under Section 223-a of
the New York Real Property Law or any successor statute of similar import then
in force and further waives the right to recover any damages which may result
from Owner's failure to deliver possession of the Demised Premises on the date
set forth in subsection A of this Section for the commencement of the Demised
Term.
Section 1.03. A. This Lease is made at the annual rental rate (referred
to as "Fixed Rent") of ONE HUNDRED SEVENTY THREE THOUSAND TWO HUNDRED FIFTY and
00/100 ($173,250.00) DOLLARS
D. The Fixed Rent and any additional rent payable pursuant to the
provisions of this Lease shall be payable by Tenant to Owner at its office (or
at such other place as Owner may designate in a notice to Tenant) 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, without prior demand
therefor and without any offset or deduction whatsoever except as otherwise
specifically provided in this Lease. The Fixed Rent shall be payable in equal
monthly installments of FOURTEEN THOUSAND FOUR HUNDRED THIRTY SEVEN and 50/100
----------------------------------($14,437.50) Dollars, in advance, on the first
(1st) day of each month during the Demised Term.
Section 1.04. Tenant covenants (i) to pay the Fixed Rent and any
additional rent payable pursuant to the provisions of this Lease, and (ii) to
observe and perform, and to permit no violation of, the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed.
(See Article 38)
ARTICLE 2
USE AND OCCUPANCY
Section 2.01. Tenant shall use and occupy the Demised Premises for
Tenant's offices, design studios and showrooms for the display and sale at
wholesale only of the following products manufactured and or designed by or for
Tenant and sold by Tenant for its own account and not as a representative or
agent of any other person: Textiles, wall coverings and home furnishings.
Section 2.02. A. Tenant shall not use or occupy, or permit the use or
occupancy of, the Demised Premises or any part thereof, for any purpose other
than the purpose specifically set forth in Section 2.01, or in any manner which,
shall adversely affect or interfere with any services required to be furnished
by Owner to Tenant or to any other
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tenant or occupant of the Building, or with the proper and economical rendition
of any such service, or with the use or enjoyment of any part of the Building by
any other tenant or occupant.
Section 2.02 B. Tenant shall not make, or permit to be made, any retail
sales from the Demised Premises. Tenant shall not use or occupy, or permit the
use or occupancy of, the Demised Premises or any part thereof for the storage of
merchandise. Tenants shall not ship, or permit to be shipped, any merchandise
from the Demised Premises to customers, but shall, instead, maintain separate
storage and shipping facilities at a location or locations other than the
Demised Premises, except minor shipping of small items and packages incidental
to Tenant's permitted use of the Demised Premises in accordance with the
provisions of Section 2.01 shall be allowed.
ARTICLE 3
ALTERATIONS
Section 3.01. Tenant shall not make or perform, or permit the making or
performance of, any alterations, installations, decorations, improvements,
additions or other physical changes in or about the Demised Premises (referred
to collectively, as "Alterations") without Owner's prior consent provided no
such prior consent shall be required for decorations. Owner agrees not
unreasonably to withhold or delay its consent to any Alterations which do not
affect the structural integrity of the Building proposed to be made by Tenant to
the Demised Premises for Tenant's business purposes. Notwithstanding the
foregoing provisions of this Section or Owner's consent to any Alterations, all
Alterations shall be made and performed in conformity with and subject to the
following provisions: All Alterations shall be made and performed at Tenant's
sole cost and expense and at such time and in such manner as Owner may, from
time to time, reasonably designate; Alterations shall be made only by
contractors or mechanics approved by Owner, such approval not unreasonably to be
withheld or delayed (notwithstanding the foregoing, all Alterations requiring
mechanics in trades with respect to which Owner has adopted or may hereafter
adopt a list or lists of approved contractors shall be made only by contractors
selected by Tenant from such list or lists); no Alteration shall be made to the
partitioning separating the Demised Premises and the public corridors or the
entrance doors of the Demised Premises; no Alteration shall affect any part of
the Building other than the Demised Premises or adversely affect other than to a
diminimus extent any service required to be furnished by Owner to Tenant or to
any other tenant or occupant of the Building or reduce the value or utility of
the Building; no Alteration shall affect the outside appearance of the Building
or the color or style of any venetian blinds (except that Tenant may remove any
venetian blinds provided that they are promptly replaced by Tenant with blinds
of a similar
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type, material and color); all business machines and mechanical equipment shall
be placed and maintained by Tenant in settings sufficient, in Owner's judgment,
to absorb and prevent vibration, noise and annoyance to other tenants or
occupants of the Building; Tenant shall submit to Owner detailed plans and
specifications (including layout, architectural, mechanical and structural
drawings) for each proposed Alteration and shall not commence any such
Alteration without first obtaining Owner's approval of such plans and
specifications; (any such plans and specifications so submitted by Tenant must
comply with the general standards and guidelines by Owner or its managing agent
for other tenants of the Building; currently such standards and guidelines are
as follows: (i) The Standards For Alteration Drawings and Guide For Consulting
Engineer, both dated May, 1988 and (ii) the Building Standard For Alteration
Construction, dated June, 1990, all of Owner's managing agent, Xxxxx Management
Co., Inc.), and provided such plans and specifications comply with the aforesaid
standards and guidelines and the provisions of this Article 3 and further
provided that the Alterations depicted on such plans and specifications comply
with the provisions of this Article 3, then, Owner shall not unreasonably
withhold or delay its consent to such plans and specifications prior to the
commencement of each proposed Alteration, Tenant shall furnish to Owner
duplicate original policies of workmen's compensation insurance covering all men
to be employed in connection with such Alteration, including those to be
employed by all contractors and subcontractors, and of comprehensive public
liability insurance (including property damage coverage) in which Owner, its
agents and any lessor under any ground or underlying lease shall be named as
parties insured, (as of the date hereof only Owner and its managing agent Xxxxx
Management Co., Inc. are required to be so named as parties insured) which
policies shall be issued by companies, and shall be in form and amounts,
consistent with Owner's requirements for other tenant's in the Building and
shall be maintained by Tenant until the completion of such Alteration; all
Alterations in or to the electrical facilities in or serving the Demised
Premises shall be subject to the provisions of subsection C(1) of Section 29.04
(relating to increases in the Fixed Rent); all fireproof wood test reports,
electrical and air conditioning certificates, and all other permits, approvals
and certificates required by all governmental authorities shall be timely
obtained by Tenant and submitted to Owner; notwithstanding Owner's approval of
plans and specifications for any Alteration, all Alterations shall be made and
performed in full compliance with all applicable laws, orders and regulations
(including, but not limited to, the New York State Energy Conservation
Construction Code) of Federal, State, County and Municipal authorities and with
all directions, pursuant to law, of all public officers, and with all applicable
rules, orders, regulations and requirements of the New York Board of Fire
Underwriters and the New York Fire Insurance Rating Organization or any similar
body; provided that nothing contained herein shall limit Owner's obligations
under Article 40 with
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respect to asbestos and other hazardous material; all Alterations shall be made
and performed in accordance with the Building Rules and Building Rules for
Alterations; all materials and equipment to be installed, incorporated or
located in the Demised Premises as a result of all Alterations shall be new ad
first quality; no such materials or equipment shall be subject to any lien,
encumbrance, chattel mortgage or title retention or security agreement of any
kind; Tenant, before commencement of such Alteration, shall furnish to Owner a
performance bond or other security satisfactory to Owner in an amount at least
equal to the estimated cost of such Alteration; provided however that no such
bond or security shall be required in connection with any Alteration
constituting a single project which shall have a cost which is less than Thirty
Thousand ($30,000.00) Dollars in the aggregate in the event Owner or its agents
employ any independent architect or engineer to examine any plans or
specifications submitted by Tenant to Owner in connection with any proposed
Alteration, Tenant agrees to pay Owner a sum equal to any reasonable fees
incurred by Owner in connection therewith.
Section 3.02. Any mechanic's lien filed against the Demised Premises or
the Building or the Real Property or the Real Property affected by the Air
Rights Lease (as defined in Article 7) for work claimed to have been done for,
or materials claimed to have been furnished to, Tenant shall be discharged by
Tenant, at Tenant's sole cost and expense, within twenty (20) days after the
filing of such mechanic's lien.
Section 3.03. Tenant shall not, at any time prior to or during the
Demised Term, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in the Demised Premises, whether in connection
with any Alteration or otherwise, if such employment will interfere or cause any
conflict with other contractors, mechanics, or laborers engaged in the
construction, maintenance or operation of the Building by Owner. Tenant or
others. In the event of any such interference or conflict. Tenant, upon demand
of Owner, shall cause all contractors, mechanics or laborers causing such
interference or conflict to leave the Building immediately.
Section 3.04. Without in any way limiting the generality of the
provisions of Section 3.01, all Alterations shall be made and performed in full
compliance with (a) New York City Local Law #5 of 1973 and any successor law of
like import and (b) all Building wide standards and practices adopted by Owner
for fire safety in the Building. No Alteration shall affect all or any part of
any Class E Fire Alarm and Communication system installed in the Demised
Premises, except that in connection with any such Alteration Tenant may relocate
certain components of such system, provided (i) such relocation shall be
performed in a manner first approved by Owner, (ii) the new location of any such
component shall be first approved by Owner, (iii)
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prior to any such relocation Tenant shall submit to Owner detailed plans and
specifications therefor which shall be first approved by Owner, and (iv) Owner
shall have the election of relocating such components either by itself or by its
contractors, in which event all expenses incurred by Owner shall be reimbursed
by Tenant upon demand of Owner, as additional rent.
Section 3.05. In the event that Tenant performs a major Alteration in
the Demised Premises, Tenant, as part of such Alteration shall be required to
install a sprinkler system in the Demised Premises and in connection therewith
the following provisions of this Section shall apply: (i) such sprinkler system
must comply with all applicable laws, orders, rules and regulations; (ii) the
supplying and installing of any such sprinkler system shall be made in
accordance with the provisions of this Lease, including but not limited to the
provisions of this Article and Article 6 and the type, brand, location and
manner of installation of such sprinkler system shall be subject to Owner's
prior approval; and (iii) Tenant shall make all repairs and replacements, as and
when necessary, to such sprinkler system and any replacements thereof.
Notwithstanding the aforesaid provisions of this Section, Owner shall have the
election of supplying and installing such sprinkler system either by itself or
by its agents or contractors, in which event all costs and expenses incurred by
Owner in connection with supplying and installing such sprinkler system and any
repairs or replacements of such sprinkler system and any replacements thereof
made by Owner at Owner's election, shall be paid by Tenant to Owner within ten
(10) days next following the rendition of a statement thereof by Owner to
Tenant. In addition to paying all costs and expenses in connection with the
supplying and installing of such sprinkler system, Tenant shall pay to the
Owner, a fee equal to (x) Tenant's Proportionate Share (as defined in Article
23) of the cost and expense incurred by Owner to prepare the Building for the
operation of such sprinkler system, plus (y) for each floor of the Building on
which any portion of the Demised Premises is located Tenant's pro rata share of
all of the costs and expenses incurred by Owner, if any, in supplying and
installing a "sprinkler loop" on such floor which pro rata share shall be a
fraction in which the numerator shall be the number of rentable square feet of
that portion of the Demised Premises located on such floor and the denominator
shall be the number of rentable square feet on such floor, provided however,
that notwithstanding anything contained in this Section to the contrary, Owner
shall have no obligation to install such "sprinkler loop" on any floor of the
Building which shall be entirely demised to Tenant. Such fee shall be payable to
Owner within ten (10) days next following the rendition of a statement thereof
by Owner to Tenant. Notwithstanding anything contained in this Lease to the
contrary, such sprinkler system or any replacement thereto and any installations
in connection therewith, whether made by Tenant or Owner, shall upon expiration
or sooner termination of the Demised Term be deemed the
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property of Owner.
(See Article 40)
Section 3.06. Any dispute with respect to the reasonability of any
failure or refusal of Owner to grant its consent or approval to any request for
such consent or approval pursuant to the provisions of Section 3.01 with respect
to which request Owner has agreed, in such Section not unreasonably to withhold
and/or delay such consent or approval, may be submitted to arbitration by either
party, by notice to the other, and, if so submitted, shall be finally determined
by arbitration in the City of New York in accordance with the rules and
regulations then obtaining of the American Arbitration Association or its
successor. Any determination pursuant to the foregoing provisions shall be final
and binding upon the parties, whether or not a judgment shall be entered in any
court. In making their determination, the arbitrators shall not subtract from,
add to, or otherwise modify any of the provisions of this Lease. Owner and
Tenant may, at their own expense, be represented by counsel and employ expert
witness in any such arbitration. If the determination of any such arbitrator
under this Section with respect to the reasonability of any failure or refusal
of Owner to grant its consent or approval to any request for such consent or
approval pursuant to the provisions of Section 3.01 shall be adverse to Owner,
Owner shall be deemed to have granted the requested consent or approval but that
shall be Tenant's sole remedy in such event and Owner shall not be liable to
Tenant for a breach of Owner's covenant not unreasonably to withhold such
consent or approval.
(See Article 40)
ARTICLE 4
OWNERSHIP OF IMPROVEMENTS
Section 4.01. All appurtenances, fixtures, improvements, additions and
other property attached to or installed in the premises demised in this Lease,
whether by Owner or Tenant or others, and whether at Owner's expense, or
Tenant's expense, or the joint expense of Owner and Tenant, shall be and remain
the property of Owner, except that any such fixtures, improvements, additions,
and other property installed at the sole expense of Tenant with respect to which
Tenant has not been granted any credit or allowance by Owner, and which are
removable without material damage to the said premises shall be and remain the
property of Tenant and are referred to as "Tenant's Personal Property". Any
replacements of any property of Owner, whether made at Tenant's expense or
otherwise, shall be and remain the property of Owner.
ARTICLE 5
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REPAIRS
Section 5.01. Subject to the provisions of Article 39, Tenant shall
take good care of the Demised Premises (including, but not limited to any and,
at Tenant's sole cost and expense, shall make all repairs and replacements,
structural and otherwise, as and when needed to preserve the Demised Premises
(including, but not limited to, any sprinkler system which Tenant is obligated
to install therein in accordance with the provisions of this lease) in good
working order and condition, except that Tenant shall not be required to make
any such structural repairs or structural replacements to the Demised Premises
unless necessitated or occasioned by the acts, omissions or negligence of Tenant
or any person claiming through or under Tenant, or any of their servants,
employees, contractors, agents, visitors or licensees, or by the use or
occupancy or manner of use or occupancy of the Demised Premises by Tenant or any
such person. Without affecting Tenant's obligations set forth in the preceding
sentence, Tenant, at Tenant's sole cost and expense, shall also (i) make all
repairs and replacements and perform all maintenance, as and when necessary, to
the lamps, tubes, ballasts, and starters in the lighting fixtures installed in
the Demised Premises and all HVAC (as defined in Section 29.02) equipment
installed in the Demised premises other than Building standard equipment, (ii)
make all repairs and replacements, as and when necessary, to Tenant's Personal
Property and to any Alterations made or performed by or on behalf of Tenant or
any person claiming through or under Tenant, (iii) make all replacements, as and
when necessary, to all outside windows if such repair is necessitated by
Tenant's acts, omissions or negligence and all interior plate and other glass in
the Demised Premises, (iv) perform all maintenance and make all repairs and
replacements, as and when necessary, to any private elevators, escalators,
conveyors or mechanical systems which may be installed in the Demised Premises
by Owner, Tenant or others. However, the provisions of the foregoing sentence
shall not be deemed to give to Tenant any right to install any private
elevators, escalators, conveyors or mechanical systems. All repairs and
replacements made by or on behalf of Tenant or any person claiming through or
under Tenant shall be made and performed in conformity with, and subject to the
provisions of, the third (3rd) sentence of Section 3.01 and shall be at least
equal in quality and class to the original work or installation provided that
notwithstanding such incorporation of said Section 3.01, a reasonably detailed
description of the nature and scope of such repair may be submitted to Owner for
its consent in lieu of any detailed plans and specifications required of the
third sentence of said Section 3.01 if such repair (x) does not require the
filing of plans and/or specifications with the Building Department of the City
of New York, or any successor thereto, and (y) is of a nature and character that
the preparation of such detailed plans and specifications for such repair are
not customary practice in the Borough of Manhattan; if submission of such
detailed plans and
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specifications shall not be required as above provided, then at least five (5)
business days prior to the commencement of such repairs Tenant shall deliver by
hand personally to Owner or the building manager for the Building a notice of
such proposed repair, which notice shall describe in reasonable detail the
nature and scope of such repair.
(See Article 39)
ARTICLE 6
COMPLIANCE WITH LAWS
Section 6.01 Subject to the provisions of Article 40, Tenant, at
Tenant's sole cost and expense, shall comply with all laws, orders and
regulations (including, but not limited to, the New York State Energy
Conservation Construction Code) of Federal, State. County and Municipal
authorities, and with all directions, pursuant to law, of all public officers,
which shall impose any duty upon Owner or Tenant with respect to the Demised
Premises or the use or occupation thereof (sometimes referred to herein,
collectively , as a "Legal Requirement") including, but not limited to, the
installation and maintenance of a sprinkler system to serve the Demised Premises
or any part thereof but only if compliance with such Legal Requirement with
respect to the installation and maintenance of a sprinkler system arises out of
the acts, omissions or negligence of Tenant (in contradistinction to the mere
use and occupancy of the Demised Premises as offices, design studios or
showrooms), and any requirement of New York City Local Law #16 of 1984 or any
successor law of like import, except that Tenant shall not be required to make
any structural Alterations or comply with any requirement of New York City Local
Law #16 of 1984 in order so to comply unless such Alterations shall be
necessitated or occasioned, in whole or in part, by the acts, omissions, or
negligence of Tenant or any person claiming through or under Tenant, or any of
their servants, employees. contractors, agents, visitors or licensees, or by the
manner of use or occupancy of the Demised Premises by Tenant or by any such
person (in contradistinction to the mere use and occupancy of the Demised
Premises as offices, design studios or showrooms) in which event such
installation shall be deemed a non-structural alteration and Tenant shall be
obligated to comply with such Legal Requirement. Any work or installations made
or performed by or on behalf of Tenant or any person claiming through or under
Tenant pursuant to the provisions of this Article shall be made in conformity
with, and subject to the provisions of, the third (3rd) sentence of Section
3.01. Any installation of such sprinkler system shall be made in conformity with
the provisions of Section 3.05.
Section 6.02. Tenant shall not do anything, or permit anything
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to be done, in or about the Demised Premises which shall (i) invalidate or be in
conflict with the provisions of any fire or other insurance policies covering
the Building or any property located therein, or (ii) result in a refusal by
fire insurance companies of good standing to insure the Building or any such
property in amounts reasonably satisfactory to Owner, or (iii) subject Owner to
any liability or responsibility for injury to any person or property by reason
of any business operation being conducted in the Demised Premises, or (iv) cause
any increase in the fire insurance rates applicable to the Building or property
located therein at the beginning of the Demised Term or at any time thereafter.
Tenant at Tenant's expense, shall comply with all rules, orders, regulations or
requirements of the New York Board of Fire Underwriters and the New York Fire
Insurance Rating Organization or any similar body, including, but not limited
to, the installation and maintenance of a sprinkler system to serve the Demised
Premises (if such installation and maintenance of such sprinkler system arises
out of the acts, omissions and negligence of Tenant in contradiction to the mere
use and occupancy of the Demised Premises as offices, design studios or
showrooms) or any part thereof, and any requirement of New York City Local Law
#16 of 1984 or any successor law of similar import if such compliance with said
Local Law #16 arises o ut of the act, omission or negligence of Tenant or
Tenant's manner of use of the Demised Premises (in contradistinction to the mere
use of the Demised Premises as offices, design studios or showrooms. Owner
hereby agrees that Tenant's mere use of the Demised Premises as offices, design
studios and showrooms in accordance with the provisions of Section 2.01, in
contradistinction to the manner of use of the Demised Premises, shall not be
deemed a violation of the provisions of subdivisions (i) through (iv) of the
immediately preceding sentence.
Section 6.03. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make up" of rates applicable to the Building or property
located therein issued by the New York Fire Insurance Rating Organization, or
other similar body fixing such fire insurance rates, shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates then applicable to the Building or property located
therein.
Section 6.04. If any alterations to the Building, including, but not
limited to, the Demised Premises, are made by Owner in order to comply with New
York City Local Law #5 of 1973 or any successor law of like import, at any time
after the date of this Lease and prior to the Expiration Date, the cost of any
such alterations shall, for the purposes of this Section, be deemed amortized by
Owner in accordance with an amortization schedule with a reasonable interest
factor included therein, determined by Owner, in Owner's reasonable judgement,
and during each calendar year which shall include any part of the Demised Term
for which such amortization shall be applicable,
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Tenant shall pay to Owner a sum equal to Tenant's Proportionate Share (as
defined in Article 23) of any such amortization and interest applicable to such
calendar year. To the knowledge of Owner, as of August 20, 1991, the Building is
in compliance with the current requirements of said Local Law #5 and Local Law
#16.
Section 6.05. Owner intends to supply and perform, on Tenant's behalf,
all materials and work necessary or required to be supplied or performed to the
floor of the Building on which the Demised Premises is located in order to
comply with New York City Local Law #16 of 1984 or any successor law of like
import. For each entire floor of the Building which comprises all or a portion
of the Demised Premises, Tenant shall pay to Owner, upon Owner's demand, a sum
equal to one hundred (100%) percent of all costs and expenses incurred by Owner
in connection with such work and materials with respect to such floor. For each
floor of the Building on which any portion of the Demised Premises is located
Tenant shall pay Owner, upon Owner's demand, a sum equal to Tenant's pro rata
share of all of the costs and expenses incurred by Owner in connection with such
work and materials with respect to such floor, which pro rata share shall be a
fraction in which the numerator shall be the number of rentable square feet of
that portion of the Demised Premises located on such floor and the denominator
shall be the number of rentable square feet on such floor. To the knowledge of
Owner, as of August 20, 1991, the Building is in compliance with the current
requirements of said Local Law #5 and Local Law #16.
(See Article 40)
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ARTICLE 7
SUBORDINATION, ATTORNMENT, ETC.
Section 7.01. This Lease and all rights of Tenant under this Lease are,
and shall remain, subject and subordinate in all respects to all ground or
underlying leases now or hereafter in effect, including, but not limited to, a
certain lease dated as of the 10th day of April, 1970 between the City of New
York, as landlord, and 41 Madison Company, as tenant, affecting the real
property immediately adjacent on the south to the plot of land upon which the
Building stands, which lease is recorded in the Office of the Register of the
City of New York, New York County, in Reel 174, page 798 (said lease is referred
to as the "Air Rights Lease") and to all mortgages which may now or hereafter
affect such leases and/or the Real Property, and to all advances made or
hereafter to be made under such mortgages, and to all renewals, modifications,
consolidations, correlations, replacements and extensions of, and substitutions
for, such leases and mortgages. The foregoing provisions of this Section shall
be self-operative and no further instrument of subordination shall be required.
In confirmation of such subordination, Tenant shall execute and deliver promptly
any certificate or other instrument which Owner, or any lessor under any ground
or underlying lease, or any holder of any such mortgage may request, and Tenant
hereby irrevocably constitutes and appoints Owner and all such lessors and
holders, acting jointly or severally, as Tenant's agent and attorney-in-fact to
execute any such certificate or other instrument for or on behalf of Tenant.
Tenant agrees that in the event of the enforcement by a holder of any such
mortgage of the remedies provided for by law or by such mortgage, no person
succeeding to the interest of Owner as a result of such enforcement shall be
bound by any payment of Fixed Rent or additional rent for more than one (1)
month in advance other than the Security referred to in Article 36. If, in
connection with obtaining financing for the Building, the Real Property, or the
interest of the lessee under any ground or underlying lease, any recognized
lending institution shall request reasonable modifications of this Lease as a
condition of such financing, Tenant covenants not unreasonably to withhold or
delay its agreement to such modifications upon Owner's request, provided that
such modifications do not increase the obligations, or materially and adversely
affect the rights, of Tenant under this Lease No act or failure to act on the
part of Owner which would entitle Tenant under the terms of this Lease, or by
law, to be relieved of Tenant's obligations hereunder or to terminate this Lease
shall result in a release or termination of such obligations or a termination of
this Lease unless (i) Tenant shall have first given written notice of Owner's
act or failure to act to the holder or holders of any mortgage affecting the
Real Property or the lessor under any ground or underlying lease affecting the
Real Property of whom Tenant has been given written notice specifying the act or
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failure to act on the part of Owner which could or would give basis to Tenant's
rights; and (ii) the holder or holders of such mortgages, after receipt of such
notice, have failed or refused to correct or cure the condition complained of
within a reasonable time thereafter, but nothing contained in this sentence
shall be deemed to impose any obligation on any such holder to correct or cure
such condition. "Reasonable Time" as used above means and includes a reasonable
time to obtain possession of the Building if any such holder elects to do so and
a reasonable time to correct or cure the condition of such condition is
determined to exist provided that such "Reasonable Time" shall not exceed a
period of one hundred twenty (120) days. Supplementing the provisions of this
Section 7.01, the word "mortgage" as used in this Section 7.01 shall be deemed
to mean and include: (i) all existing mortgages, and all renewals,
modifications, consolidations, correlations, replacements and extensions of, and
substitutions for said mortgages, and (ii) one or more mortgages made or
assigned to one or more savings banks, commercial banks, trust companies,
insurance companies, universities, pension funds, or similar first mortgage
lending institutions (referred to collectively, as "Institutional Lenders") and,
if there shall be more than one such mortgage, all of such mortgages which shall
be consolidated or correlated in a single instrument setting forth the manner of
payment of the total indebtedness secured thereby, it being intended that such
mortgage or mortgages as so consolidated or correlated, shall be of the
character commonly known as "first mortgage", and (iii) any other mortgage or
mortgages whether or not of the character commonly known as "first mortgage"
provided that any such other mortgage shall contain a provision, or the holder
thereof shall deliver an agreement to Tenant, in either case to the effect that
any steps or proceedings taken by reason of default in any such mortgage shall
not cut off this Lease, nor shall Tenant's possession be disturbed by virtue of
such steps or proceedings, so long as there shall be no default by Tenant under
any of the terms, covenants or conditions of this Lease, however, Tenant agrees
that Tenant shall have no right of set-off or other claim against the holder of
such mortgage (if it should become Tenant's lessor under this Lease), based upon
any act of Owner or any other circumstance or act occurring prior to the date
when such holder shall become Tenant's lessor under this Lease.
Section 7.02. If, at any time prior to the expiration of the Demised
Term, any ground or underlying lease under which Owner then shall be the lessee
shall terminate or be terminated for any reason, Tenant agrees, at the election
and upon demand of any owner of the Real Property, or of the holder of any
mortgage in possession of the Real Property or the Building, or of any lessee
under any other ground or underlying lease covering premises which include the
Demised Premises, to attorn, from time to time, to any such owner, holder, or
lessee, upon the then executory terms and conditions of this Lease, for the
remainder of the term originally demised in this Lease,
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provided that such owner, holder or lessee, as the case may be, shall then be
entitled to possession of the Demised Premises. The provisions of this Section
shall enure to the benefit of any such owner, holder, or lessee, shall apply
notwithstanding that, as a matter of law, this Lease may terminate upon the
termination of any such ground or underlying lease, shall be self-operative upon
any such demand, and no further instrument shall be required to give effect to
said provisions. Tenant, however, upon demand of any such owner, holder, or
lessee, agreed to execute, from time to time, instruments in confirmation of the
foregoing provisions of this Section, reasonably satisfactory to any such owner,
holder, or lessee, acknowledging such attornment and setting forth the terms and
conditions of its tenancy. Nothing contained in this Section shall be construed
to impair any right otherwise exercisable by any such owner, holder, or lessee.
Section 7.03. From time to time, within seven (7) days next following
Owner's request, Tenant shall deliver to Owner a written statement executed and
acknowledged by Tenant, in form reasonably satisfactory to Owner, (i) stating
that this Lease is then in full force and effect and has not been modified (or
if modified, setting forth the specific nature of all modifications), and (ii)
setting forth the date to which the Fixed Rent has been paid, and (iii) stating
whether or not, to the best knowledge of Tenant, Owner is in default under this
Lease, and, if Owner is in default, setting forth the specific nature of all
such defaults. Tenant acknowledges that any statement delivered pursuant to this
Section may be relied upon by any purchaser or owner of the Building, or the
Real Property, or Owner's interest in the Building or the Real Property or any
ground or underlying lease, or by any mortgagee, or by any assignee of any
mortgagee, or by any lessee under any ground or underlying lease.
ARTICLE 8
PROPERTY LOSS, ETC.
Section 8.01. Any Building employee to whom any property shall be
entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Owner nor Owner's agents shall
be liable for any loss of or damage to any such property by theft or otherwise.
Neither (i) the performance by Owner, Tenant or others of any decorations,
repairs, alterations, additions or improvements in or to the Building or the
Demised Premises, nor the failure of Owner or others to make any such
decorations, repairs, alterations, additions or improvements, nor (iii) any
damage to the Demised Premises or to the property of Tenant, nor any injury to
any persons, caused by other tenants or persons in the Building, or by
operations in the construction of any private, public or quasi-public work, or
by any other cause, nor (iv) any latent defect in the Building or in the Demised
Premises, nor (v) any temporary or
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permanent closing, darkening or bricking up of any windows, including show
windows, of the Demised Premises for any reason whatsoever including, but not
limited to, Owner's own acts, nor (vi) any inconvenience or annoyance to Tenant
or injury to or interruption of Tenant's business by reason of any of the events
or occurrences referred to in the foregoing subdivisions (i) through (v), shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Owner, or its agents,
or any lessor under any ground or underlying lease, other than such liability as
may be imposed upon Owner by law for Owner's negligence or the negligence of
Owner's agents, servants or employees in the operation or maintenance of the
Building or for the breach by Owner of any express covenant of this Lease on
Owner's part to be performed. Tenant's taking possession of the Demised Premises
shall be conclusive evidence, as against Tenant, that, at the time such
possession was so taken, the Demised Premises and the Building were in good and
satisfactory condition Subject to Owner's repair obligations under Article 39.
ARTICLE 9
DESTRUCTION - FIRE OR OTHER CASUALTY
Section 9.01. If the Demised Premises shall be damaged by fire or other
casualty and if Tenant shall give prompt notice to Owner of such damage, Owner,
at Owner's expense, shall repair such damage subject to Owner's options as
hereinafter provided and further subject to the provisions of Section 9.05.
However, Owner shall have no obligation to repair any damage to, or to replace,
Tenant's Personal Property or any other property or effects of Tenant. Except as
otherwise provided in Section 9.03, if the entire Demised Premises shall be
rendered untenantable by reason of any such damage, the Fixed Rent shall xxxxx
for the period from the date of such damage to the date when such damage shall
have been repaired, and if only a part of the Demised Premises shall be so
rendered untenantable, the Fixed Rent shall xxxxx for such period in the
proportion which the area of the part of the Demised Premises so rendered
untenantable bears to the total area of the Demised Premises. However, if, prior
to the date when all of such damage shall have been repaired, any part of the
Demised Premises so damaged shall be rendered tenantable and shall be used or
occupied by Tenant or any person or persons claiming through or under Tenant,
then the amount by which the Fixed Rent shall xxxxx shall be equitably
apportioned for the period from the date of any such use or occupancy to the
date when all such damage shall have been repaired. Tenant hereby expressly
waives the provisions of Section 227 of the New York Real Property Law, and of
any successor law of like import then in force, and Tenant agrees that the
provisions of this Article shall govern and control in lieu thereof.
Notwithstanding the
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foregoing provisions of this Section, if, prior to or during the Demised Term,
(i) the Demised Premises shall be totally damaged or rendered wholly
untenantable by fire or other casualty, and if Owner shall decide not to restore
the Demised Premises, or (ii) the Building shall be so damaged by fire or other
casualty that, in Owner's opinion, substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or not the Demised
Premises shall have been damaged or rendered untenantable), then, in any of such
events, Owner, at Owner's option, may give to Tenant, within ninety (90) days
after such fire or other casualty, a five (5) days' notice of termination of
this Lease and, in the event such notice is given, this Lease and the Demised
Term shall come to an end and expire (whether or not said term shall have
commenced) upon the expiration of said five (5) days with the same effect as if
the date of expiration of said five (5) days were the Expiration Date, the Fixed
Rent shall be apportioned as of such date and any prepaid portion of Fixed Rent
for any period after such date shall be refunded promptly by Owner to Tenant.
Section 9.02. Owner shall attempt to obtain and maintain, throughout
the Demised Term, in Owner's fire insurance policies covering the Building,
provisions to the effect that such policies shall not be invalidated should the
insured waive, in writing, prior to a loss, any or all right of recovery against
any party for loss occurring to the Building. In the event that at any time
Owner's fire insurance carriers shall exact an additional premium for the
inclusion of such or similar provisions. Owner shall give Tenant notice thereof.
In such event, if Tenant agrees, in writing, to reimburse Owner for such
additional premium for the remainder of the Demised Term, Owner shall require
the inclusion of such or similar provisions by Owner's fire insurance carriers.
As long as such or similar provisions are included in Owner's fire insurance
policies then in force, Owner hereby waives (i) any obligation on the part of
Tenant to make repairs to the Demised Premises necessitated or occasioned by
fire or other casualty that is an insured risk under such policies, and (ii) any
right of recovery against Tenant, any other permitted occupant of the Demised
Premises, and any of their servants, employees, agents or contractors, for any
loss occasioned by fire or other casualty that is an insured risk under such
policies. In the event that at any time Owner's fire insurance carriers shall
not include such or similar provisions in Owner's fire insurance policies, the
waivers set forth in the foregoing sentence shall, upon notice given by Owner to
Tenant, be deemed of no further force or effect.
Section 9.03. Except to the extent expressly provided in Section 9.02,
nothing contained in this Lease shall relieve Tenant of any liability to Owner
or to its insurance carriers which Tenant may have under law or the provisions
of this Lease in connection with any damage to the Demised Premises or the
Building by fire or other
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casualty. Notwithstanding the provisions of Section 9.01, if any such damage,
occurring after any date when the waivers set forth in Section 9.02 are no
longer in force and effect, is due to the fault or neglect of Tenant, any person
claiming through or under Tenant, or any of their servants, employees, agents,
contractors, visitors or licensees, then there shall be no abatement of Fixed
Rent by reason of such damage.
Section 9.04. Tenant shall attempt to obtain and maintain, throughout
the Demised Term, in Tenant's fire insurance policies covering Tenant's property
in the Demised Premises, and Tenant's use and occupancy of the Demised Premises,
and/or Tenant's profits (and shall cause any other permitted occupants of the
Demised Premises to attempt to obtain and maintain, in similar policies),
provisions to the effect that such policies shall not be invalidated should the
insured waive, in writing, prior to a loss, any or all right of recovery against
any party for loss occasioned by fire or other casualty which is an insured risk
under such policies. In the event that at any time the fire insurance carriers
issuing such policies shall exact an additional premium for the inclusion of
such or similar provisions, Tenant shall give Owner notice thereof. In such
event, if Owner agrees, in writing, to reimburse Tenant or any person claiming
through or under Tenant, as the case may be, for such additional premium for the
remainder of the Demised Term, Tenant shall require the inclusion of such or
similar provisions by such fire insurance carriers. As long as such or similar
provisions are included in such fire insurance policies then in force, Tenant
hereby waives (and agrees to cause any other permitted occupants of the Demised
Premises to execute and deliver to Owner written instruments waiving) any right
of recovery against Owner, any lessors under any ground or underlying leases,
any other tenants or occupants of the Building, and any servants, employees,
agents or contractors of Owner or of any such lessor, or of any such other
tenants or occupants, for any loss occasioned by fire or other casualty which is
an insured risk under such policies. In the event that at any time such fire
insurance carriers shall not include such or similar provisions in any such fire
insurance policy, the waiver set forth in the foregoing sentence shall, upon
notice given by Tenant to Owner, be deemed of no further force or effect with
respect to any insured risks under such policy from and after the giving of such
notice. During any period while the foregoing waiver of right of recovery is in
effect, Tenant, or any other permitted occupant of the Demised Premises, as the
case may be, shall look solely to the proceeds of such policies to compensate
Tenant or such other permitted occupant for any loss occasioned by fire or other
casualty which is an insured risk under such policies.
Section 9.05. A. Supplementing the provisions of Section 9.01, in the
event (a) the Demised Premises or Building shall be damaged by fire or other
casualty and Tenant shall be unable to use the Demised
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Premises or a substantial part thereof as a result of such damage and (b) Owner
shall not exercise the right to terminate this Lease in accordance with the
provisions of Section 9.01 and shall, accordingly, be obligated to repair any
such damage, then, if such damage is not repaired within eighteen (18) months
after the date of such fire or other casualty (such eighteen (18) month period
is referred to as the "Restoration Period"), Tenant shall have the following
options:
(i) to give to Owner within fifteen (15) days
next following the expiration of the Restoration Period a five (5) days' notice
of termination of this Lease, or
(ii) to extend the Restoration Period for a
further period of six (6) months by notice given to Owner within fifteen (15)
days after the expiration of the initial Restoration Period. In the event Tenant
shall have given such notice to Owner extending the initial Restoration Period
and if such damage shall not have been repaired by Owner within any extended
Restoration Period, Tenant shall have the options to (a) further extend the
Restoration Period for further successive periods of six (6) months, by notice
given to Owner within fifteen (15) days after the expiration of any extended
Restoration Period or (b) to give Owner, within fifteen (15) days after the
expiration of any such extended Restoration Period a five (5) days' notice of
termination of this Lease.
B. Notwithstanding anything to the
contrary contained in the provisions of Paragraph A of this Section 9.05, in the
event Owner, in Owner's opinion, shall determine that the repair of such damage
to the Demised Premises or Building will reasonably require a period longer than
eighteen (18) months, Owner may, within ninety (90) days after the date of such
fire or casualty, give a notice to Tenant extending the initial Restoration
Period to the date upon which Owner estimates that such repair to the Demised
Premises or Building shall be completed. In the event Owner shall give such a
notice under this Paragraph B, then, (a) the initial Restoration Period set
forth in Paragraph A of this Section 9.05, shall be so extended and (b) Tenant
shall have the further option to give to Owner a five (5) days' notice of
termination of this Lease within fifteen (15) days next following the giving of
such notice under this Paragraph B by Owner to Tenant extending the initial
Restoration Period.
C. Time is of the essence with respect
to the giving by Tenant to Owner of any notice in accordance with the provisions
of Paragraphs A and B of this Section 9.05 and in the event that Tenant shall
fail to give any such notice within the time periods set forth therein, Tenant
shall be deemed to have given to Owner a notice pursuant to subdivision (ii) of
Paragraph A of this Section 9.05 extending the Restoration Period provided,
however, that any five
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(5) days' notice of termination given by Tenant pursuant [text missing in
original].
ARTICLE 10
EMINENT DOMAIN
Section 10.01. If the whole of the Demised Premises shall be acquired
or condemned for any public or quasipublic use or purpose, this Lease and the
Demised Term shall end as of the date of the vesting of title with the same
effect as if said date were the Expiration Date. If only a part of the Demised
Premises shall be so acquired or condemned then, except as otherwise provided in
this Section, this Lease and the Demised Term shall continue in force and effect
but, from and after the date of the vesting of title, the Fixed Rent shall be
reduced in the proportion which the area of the part of the Demised Premises so
acquired or condemned bears to the total area of the Demised Premises
immediately prior to such acquisition or condemnation and the amount of
"Tenant's Proportionate Share" (defined in Section 23.01) shall be appropriately
adjusted to reflect that part of the Demised Premises so acquired or condemned.
If only a part of the Real Property shall be so acquired or condemned, then (i)
whether or not the Demised Premises shall be affected thereby, Owner, at Owner's
option, may give to Tenant, within sixty (60) days next following the date upon
which Owner shall have received notice of vesting of title, a five (5) days'
notice of termination of this Lease, and (ii) if the part of the Real Property
so acquired or condemned shall contain more than ten (10%) per cent of the total
area of the Demised Premises immediately prior to such acquisition or
condemnation, or if, by reason of such acquisition or condemnation, Tenant no
longer has reasonable means of access to the Demised Premises, Tenant, at
Tenant's option, may give to Owner, within sixty (60) days next following the
date upon which Tenant shall have received notice of vesting of title, a five
(5) days' notice of termination of this Lease. In the event any such five (5)
days' notice of termination is given, by Owner or Tenant, this Lease and the
Demised Term shall come to an end and expire upon the expiration of said five
(5) days with the same effect as if the date of expiration of said five (5) days
were the Expiration Date. If a part of the Demised Premises shall be so acquired
or condemned and this Lease and the Demised Term shall not be terminated
pursuant to the foregoing provisions of this Section, Owner, at Owner's expense,
shall restore that part of the Demised Premises not so acquired or condemned to
a self-contained rental unit in substantially the same condition as existed
prior to such acquisition or condemnation. In the event of any termination of
this Lease and the Demised Term pursuant to the provisions of this Section, the
Fixed Rent shall be apportioned as of the date of sooner termination and any
prepaid portion of Fixed Rent for any period after such date shall be refunded
by Owner to Tenant.
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Section 10.02. In the event of any such acquisition or condemnation of
all or any part of the Real Property, Owner shall be entitled to receive the
entire award for any such acquisition or condemnation, Tenant shall have no
claim against Owner or the condemning authority for the value of any unexpired
portion of the Demised Term and Tenant hereby expressly assigns to Owner all of
its right in and to any such award. Nothing contained in this Section shall be
deemed to prevent Tenant from making a claim in any condemnation proceedings for
the value of any items of Tenant's Personal Property which are compensable, in
law, as trade fixtures.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
Section 11.01. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, covenants that,
without the prior consent of Owner in each instance, it shall not (i) assign
whether by merger, consolidation or otherwise, mortgage or encumber its interest
in this Lease, in whole or in part, or (ii) sublet, or permit the subletting of,
the Demised Premises or any part thereof, or (iii) permit the Demised Premises
or any part thereof to be occupied, or used for desk space, mailing privileges
or otherwise, by any person other than Tenant. Except as otherwise provided to
the contrary in Section 11.05 and/or 11.06. The sale, pledge, transfer or other
alienation of (a) more than forty-nine percent of the issued and outstanding
capital stock of any corporate Tenant or (b) more than forty-nine percent of any
interest in any partnership or joint venture Tenant, however accomplished, and
whether in a single transaction or in a series of related or unrelated
transactions, shall be deemed for the purposes of this Section as an assignment
of this Lease which shall require the prior consent of Owner in each instance.
Notwithstanding the aforesaid provisions of this Section 11.01, the sale,
pledge, transfer or other alienation of more than forty-nine (49%) percent of
any of the issued and outstanding capital stock of Xxx Xxxx Designs, Ltd., (or
any subsidiary of affiliate of said Xxx Xxxx Designs, Ltd. to whom this Lease
has been assigned in accordance with the provisions of Section 11.05), (a) to or
among "Tenant's Existing Shareholders" (hereinafter defined) or the spouse,
children or parents (or trusts for the benefit of any of the foregoing persons)
of said Tenant's Existing Shareholders, or (b) upon the death of any of Tenant's
Existing Shareholders shall not be deemed an assignment of this Lease. Tenant's
Existing Shareholders are (i) Xx. Xxxxxxx Xxxxx, an individual residing at 000
Xxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 0000, (ii) Xx. Xxx Xxxx, an individual
residing at 000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000 and (iii) M. Xxxxxx
Xxxxxx-Valencienne, an individual residing at 00 Xxx xxx Xxxx, 00000,
Xxxxxxxx-Xxx-Xxxxx, Xxxxxx.
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Section 11.02. If Tenant's interest in this Lease is assigned, whether
or not in violation of the provisions of this Article, Owner may collect rent
from the assignee; if the Demised Premises or any part thereof are sublet to, or
occupied by, or used by, any person other than Tenant, whether or not in
violation of this Article, Owner, after default by Tenant under this Lease, may
collect rent from the subtenant, user or occupant. In either case, Owner shall
apply the net amount collected to the rents reserved in this Lease, but neither
any such assignment, subletting, occupancy, or use, whether with or without
Owner's prior consent, nor any such collection or application, shall be deemed a
waiver of any term, covenant or condition of this Lease or the acceptance by
Owner of such assignee, subtenant, occupant or user as tenant. The consent by
Owner to any assignment, subletting, occupancy or use shall not relieve Tenant
from its obligation to obtain the express prior consent of Owner to any further
assignment, subletting, occupancy or use. 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 in the Demised Premises, or be
deemed to constitute, or serve as a substitute for, any prior consent of Owner
required under this Article, and it is understood that any such listing shall
constitute a privilege extended by Owner which shall be revocable at Owner's
will by notice to Tenant. Tenant agrees to pay to Owner reasonable counsel fees
incurred by Owner in connection with any proposed assignment of Tenant's
interest in this Lease or any proposed subletting of the Demised Premises or any
part thereof. Neither any assignment of Tenant's interest in this Lease nor any
subletting, occupancy or use of the Demised Premises or any part thereof by any
person other than Tenant, nor any collection of rent by Owner from any person
other than Tenant as provided in this Section, nor any application of any such
rent as provided in this Section shall, in any circumstances, relieve Tenant of
its obligation fully to observe and perform the terms, covenants and conditions
of this Lease on Tenant's part to be observed and performed.
Section 11.03. As long as Tenant is not in default under any of the
material terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed, Owner agrees not to unreasonably withhold or delay
(subject to the following provisions of this Section 11.03) Owner's prior
consent to a subletting by Tenant of the entire Demised Premises to one (1)
subtenant for undivided occupancy by such subtenant, for the use permitted in
this Lease, or as offices and/or showrooms for the display and sale at wholesale
only directly by the proposed subtenant of products sold by either the "Table
Top" or "Home Furnishings" Industry except that the enumerated products set
forth in Section 2.01 shall be manufactured by or for such subtenant and sold by
such subtenant for its own account, and not as a representative or agent of any
other person. At least thirty (30) days prior to any
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proposed subletting, Tenant shall submit to Owner a statement containing the
name and address of the proposed subtenant and all of the principal terms and
conditions of the proposed subletting including, but not limited to, the
proposed commencement and expiration dates of the term thereof. Owner may,
however, arbitrarily withhold such consent if, in Owner's reasonable judgment,
the occupancy of the proposed subtenant will tend to impair the character or
dignity of the Building or impose any additional burden upon Owner in the
operation of the Building. In the event of any dispute between Owner and Tenant
as to the reasonableness of Owner's refusal to consent to any subletting, such
dispute shall be determined by arbitration in the City of New York in accordance
with the rules and regulations then obtaining of the American Arbitration
Association or its successor. Any such determination shall be final and binding
upon the parties, whether or not a judgment shall be entered in any court. If
the determination of any such arbitration shall be adverse to Owner, Owner,
nevertheless, shall not be liable to Tenant for a breach of Owner's covenant not
unreasonably to withhold such consent, and Tenant's sole remedy in such event
shall be to enter into the proposed subletting. Notwithstanding the foregoing
provisions of this Section, (1) in the event Tenant proposes to sublet the
Demised Premises, whether or not such subletting is for all or substantially all
of the remainder of the Demised Term, Owner, at Owner's option, may give to
Tenant, within twenty-five (25) days after the submission by Tenant to Owner of
the statement required to be submitted in connection with such subletting, a
notice terminating this Lease on the date (referred to as the "Earlier
Termination Date") immediately prior to the proposed commencement date of the
term of the proposed subletting, as set forth in such statement, and, in the
event such notice is given, this Lease and the Demised Term shall come to an end
and expire on the Earlier Termination Date with the same effect as if it were
the Expiration Date, the Fixed Rent shall be apportioned as of said Earlier
Termination Date and any prepaid portion of Fixed Rent for any period after such
date shall be refunded by Owner to Tenant or (2) in the event Tenant proposes to
sublet the Demised Premises for less than all or substantially all of the
remainder of the Demised Term, Owner, at Owner's option, may give to Tenant
within twenty-five (25) days after the submission by Tenant to Owner of the
statement required to be submitted in connection with such proposed subletting,
a notice electing to recapture the Demised Premises during the period (referred
to as the "Recapture Period") commencing on the date (referred to as the
"Recapture Date") immediately prior to the proposed commencement date of the
term of the proposed subletting, as set forth in such statement, and ending on
the proposed expiration date of the term of the proposed subletting, as set
forth in such statement, and in the event such notice is given (i) the Demised
Premises shall be recaptured by Owner during the Recapture Period; (ii) Tenant
shall surrender the Demised Premises to Owner on or prior to the Recapture Date
in the same manner as if said Date were the Expiration Date;
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(iii) during the Recapture Period Tenant shall have no rights with respect to
the Demised Premises nor any obligations with respect to the Demised Premises,
including, but not limited to, any obligations to pay Fixed Rent or any
increases therein or any additional rent, and any prepaid portion of Fixed Rent
allocable to the Recapture Period shall be refunded by Owner to Tenant; (iv)
there shall be an equitable apportionment of any increase in the Fixed Rent
pursuant to Article 23 for the Escalation Year and Tax Escalation Year (as
defined in Article 23) in which said Recapture Date shall occur; (v) upon the
expiration of the Recapture Period, the Demised Premises, in its then existing
condition, shall be deemed restored to Tenant and Tenant shall have all rights
with respect to the Demised Premises which are set forth in this Lease and all
obligations with respect to the Demised Premises which are set forth in this
Lease including, but not limited to, the obligations for the payment of Fixed
Rent and any increases therein and any additional rent (as they would have been
adjusted if Tenant occupied the Demised Premises during the Recapture Period)
during the period (referred to as the "Recapture Restoration Period") commencing
on the date next following the expiration of the Recapture Period and ending on
the Expiration Date, except in the event that Owner is unable to give Tenant
possession of the Demised Premises at the expiration of the Recapture Period by
reason of the holding over or retention of possession of any tenant or other
occupant, in which event (x) the Recapture Restoration Period shall not commence
and the Demised Premises shall not be deemed available for Tenant's occupancy
and Tenant shall not be required to comply with the obligations of Tenant under
this Lease until the date upon which Owner shall give Tenant possession of the
Demised Premises free of occupancies, (y) neither the Expiration Date nor the
validity of this Lease shall be affected, and (z) Tenant waives any rights under
Section 223-a of the Real Property Law of the State of New York, or any
successor statute of similar import, to rescind this Lease and further waives
the right to recover any damages which may result from the failure of Owner to
deliver possession of the Demised Premises at the end of the Recapture Period;
and (vi) there shall be an equitable apportionment of any increase in the Fixed
Rent pursuant to Article 23 for the Escalation Year and Tax Escalation Year in
which the Recapture Restoration Period shall commence. The failure by Owner to
exercise any option under this Section with respect to any subletting shall not
be deemed a waiver of such option with respect to any extension of such
subletting or any subsequent subletting of the Demised Premises. If (a) Owner
shall (i) fail or refuse to consent to any proposed subletting, or (ii) exercise
any of its options under this Section 11.03, or (b) any proposed subletting
shall fail to be consummated for any reason whatsoever, Tenant shall indemnify
Owner from all loss, cost, liability, damage and expense, including, but not
limited to, reasonable counsel fees and disbursements, arising from any claims
against Owner by any broker or other person, for a brokerage commission or other
similar compensation in connection with any such proposed subletting. Owner
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and Tenant agree that (i) any increase in the rental value of the Demised
Premises over and above the Fixed Rent payable pursuant to the provisions of
this Lease, as such Fixed Rent may be increased from time to time pursuant to
the provisions of this Lease, and (ii) any consideration paid to Tenant or any
subtenant or other person claiming through or under Tenant in connection with an
assignment of the Tenant's interest in this Lease or the interest of any
subtenant or other person claiming through or under Tenant under any sublease
shall accrue to the benefit of Owner and not to the benefit of Tenant. or of any
subtenant or other person claiming through or under Tenant, or of the creditors
of Tenant or of any such subtenant or other person claiming through or under
Tenant. Accordingly, it is agreed that if Owner shall fail to exercise its
option to sooner terminate this Lease or its option to recapture the Demised
Premises in connection with any proposed subletting by Tenant, or if any
subtenant or other person claiming through or under Tenant shall sublet all or
any portion of the Demised Premises. Tenant shall pay to Owner a sum equal to
any Subletting Profit, as such term is hereinafter defined. All rentals and
other sums (including, but not limited to, sums paid for the sale or rental of
any fixtures, leasehold improvements, equipment, furniture or other personal
property, less, in the case of the sale thereof, the then net unamortized [on a
straight-line basis over the term of this Lease or, in the event of a further
subletting, over the term of the initial sublease, as the case may be] cost
thereof, which were provided and installed in the sublet premises at the sole
cost and expense of Tenant or such subtenant or other person claiming through or
under Tenant and for which no allowance or other credit has been given) payable
by any subtenant to Tenant or to any subtenant or other person claiming through
or under Tenant in connection with any subletting in excess of the Fixed Rent
then payable by Tenant to Owner under this Lease are referred to, in the
aggregate, as "Subletting Profit"; and there shall be deducted the actual bona
fide brokerage commission paid by Tenant, if any such commission shall be
incurred by Tenant or any such subtenant or other person claiming through or
under Tenant in connection with such subletting which deduction for the actual
bona fide brokerage commission paid by Tenant shall be amortized on a straight
line basis over the entire term of such subletting. Owner and Tenant agree that
if Tenant, or any subtenant or other person claiming through or under Tenant,
shall assign or have assigned its interest as Tenant under this Lease or its
interest as subtenant under any sublease, as the case may be, Tenant shall pay
to Owner a sum equal to any consideration paid to Tenant or any subtenant or
other person claiming through or under Tenant for such assignment provided that
Tenant, or any such subtenant or other person as the case may be, shall be
entitled to deduct from such sum to be paid to Owner the following: (a) the
actual bona fide brokerage commission paid by Tenant in connection with such
assignment and (b) the amount paid to Tenant, or any such subtenant, for the
then net unamortized (on a straight-line basis over the term of this Lease) cost
of any
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fixtures, leasehold improvements, equipment, furniture and other personal
property sold by Tenant, or any such subtenant, to the assignee in connection
with such assignment (the "Sold Leasehold Improvements"), provided that (i) such
assignment shall expressly state the consideration allocated to the sale of such
Sold Leasehold Improvements, and (ii) such Sold Leasehold Improvements were
provided and installed in the Demised Premises at the sole cost and expense of
Tenant, or any such subtenant, and for which no allowance or other credit was
given by Owner. However, notwithstanding the aforesaid provisions of this
Section 11.03, an assignment of Tenant's interest in this lease made solely in
accordance with the provisions of Section 11.06 shall be deemed an assignment
without consideration and accordingly Owner shall not be entitled to the payment
of any sum referred to in the immediate preceding sentence. All sums payable
hereunder by Tenant shall be paid to Owner as additional rent immediately upon
the payment of such sums to Tenant or to any subtenant or other person claiming
through or under Tenant and, if requested by Owner, Tenant shall promptly enter
into a written agreement with Owner setting forth the amount of such sums to be
paid to Owner; however, neither Owner's failure to request the execution of such
agreement nor Tenant's failure to execute such agreement shall vitiate the
provisions of this Section. For the purposes of this Article, a trustee,
receiver or other representative of the Tenant's or any subtenant's estate under
any federal or state bankruptcy act shall be deemed a person claiming through or
under Tenant. Neither Owner's consent to any subletting nor anything contained
in this Section shall be deemed to grant to any subtenant or other person
claiming through or under Tenant the right to sublet all or any portion of the
Demised Premises or to permit the occupancy of all or any portion of the Demised
Premises by others. Neither any subtenant referred to in this Section nor its
heirs, distributees, executors, administrators, legal representatives,
successors nor assigns, without the prior consent of Owner in each instance,
shall (i) assign, whether by merger, consolidation or otherwise, mortgage or
encumber its interest in any sublease, in whole or in part, or (ii) sublet, or
permit the subletting of, that part of the Demised Premises affected by such
subletting or any part thereof, or (iii) permit such part of the Demised
Premises affected by such subletting or any part thereof to be occupied or used
for desk space, mailing privileges or otherwise, by any person other than such
subtenant. The sale, pledge, transfer or other alienation of more than
forty-nine (49%) of (a) any of the issued and outstanding capital stock of any
corporate subtenant or (b) any interest in any partnership or joint venture
subtenant, however accomplished, and whether in a single transaction or in a
series of related or unrelated transactions, shall be deemed for the purposes of
this Section as an assignment of such sublease which shall require the prior
consent of Owner in each instance.
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Section 11.04. In the event that, at any time after Tenant may have
assigned Tenant's interest in this Lease, this Lease shall be disaffirmed or
rejected in any proceeding of the types described in subsections 16.01(c) and
(d), or in any similar proceeding, or in the event of termination of this Lease
by reason of any such proceeding or by reason of lapse of time following notice
of termination given pursuant to Section 16.01 based upon any of the Events of
Default set forth in said subsections, Tenant, upon request of Owner given
within thirty (30) days next following any such disaffirmance, rejection or
termination (and actual notice thereof to Owner in the event of a disaffirmance
or rejection or in the event of termination other than by act of Owner), shall
(i) pay to Owner all Fixed Rent, additional rent and other charges due and owing
by the assignee to Owner under this Lease to and including the date of such
disaffirmance, rejection or termination, and (ii) as "tenant", enter into a new
lease with Owner of the Demised Premises for a term commencing on the effective
date of such disaffirmance, rejection or termination and ending on the
Expiration Date unless sooner terminated as in such lease provided, at the same
Fixed Rent and then executory terms, covenants and conditions as are contained
in this Lease, except that (a) Tenant's rights under the new lease shall be
subject to the possessory rights of the assignee under this Lease and the
possessory rights of any person claiming through or under such assignee or by
virtue of any statute or of any order of any court, and (b) such new lease shall
require all defaults existing under this Lease to be cured by Tenant with due
diligence, and (c) such new lease shall require Tenant to pay all increases in
the Fixed Rent reserved in this Lease which, had this Lease not been so
disaffirmed, rejected or terminated, would have accrued under the provisions of
Article 23 of this Lease after the date of such disaffirmance, rejection or
termination with respect to any period prior thereto. In the event Tenant shall
default in its obligation to enter into said new lease for a period of ten (10)
days next following Owner's request therefor, then, in addition to all other
rights and remedies by reason of such default, either at law or in equity, Owner
shall have the same rights and remedies against Tenant as if Tenant had entered
into such new lease and such new lease had thereafter been terminated as at the
commencement date thereof by reason of Tenant's default thereunder.
(See Article 38)
Section 11.05. A. Supplementing the provisions of Article 11, as long
as Tenant is not in default under any of the material terms, covenants or
conditions of this Lease on Tenant's part to be observed and performed, (1) Xxx
Xxxx Designs, Ltd., Tenant named herein, or (2) the direct and immediate
subtenant of Xxx Xxxx Designs, Ltd. in accordance with a subletting consented to
by Owner or expressly
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permitted by the provisions of this Lease (referred to herein as "Tenant's
Direct Subtenant") shall each have the right, without the prior consent of
Owner, to assign its interest in this Lease, for the use permitted in this
Lease, to any subsidiary or affiliate of Tenant named herein, or such Tenant's
Direct Subtenant, which is in the same general line of business as Tenant named
herein, or such Tenant's Direct Subtenant, and only for such period as it shall
remain such subsidiary or affiliate. For the purposes of this Article: (a) a
"subsidiary" of Tenant named herein, or such Tenant's Direct Subtenant, shall
mean any corporation not less than fifty-one (51%) percent of whose outstanding
voting stock at the time shall be owned by Tenant named herein, or such Tenant's
Direct Subtenant, and (b) an "affiliate" of Tenant named herein, or such
Tenant's Direct Subtenant, shall mean any corporation, partnership or other
business entity which controls or is controlled by, or is under common control
with Tenant, or such Tenant's Direct Subtenant. For the purpose of the
definition of "affiliate" the word "control" (including, "controlled by" and
"under common control with") as used with respect to any corporation,
partnership or other business entity, shall mean the possession of the power to
direct or cause the direction of the management and policies of such
corporation, partnership or other business entity, whether through the ownership
of voting securities or contract. No such assignment shall be valid or effective
unless, within ten (10) days after the execution thereof, Tenant, or such
Tenant's Direct Subtenant, shall deliver to Owner all of the following: (1) a
duplicate original instrument of assignment, in form and substance reasonably
satisfactory to Owner, duly executed by Tenant, or such Tenant's Direct
Subtenant, in which Tenant, or such Tenant's Direct Subtenant, shall (a) waive
all notices of default given to the assignee, and all other notices of every
kind or description now or hereafter provided in this Lease, by statute or rule
of law, and (b) acknowledge that Tenant's obligations with respect to this
Lease, or any obligations of such Tenant's Direct Subtenant under any sublease
or any agreement with Owner, shall not be discharged, released or impaired by
(i) such assignment, (ii) any amendment or modification of this Lease, or such
sublease or agreement with Owner, whether or not the obligations of Tenant, or
such Tenant's Direct Subtenant, are increased thereby, (iii) any further
assignment or transfer of Tenant's interest in this Lease or the interest of
such Tenant's Direct Subtenant under any sublease, (iv) any exercise,
non-exercise or waiver by Owner of any right, remedy, power or privilege under
or with respect to this Lease, (v) any waiver, consent, extension, indulgence or
other act or omission with respect to any other obligations of Tenant under this
Lease, or any obligations of such Tenant's Direct Subtenant under any sublease
or any agreement with Owner, (vi) any act or thing which, but for the provisions
of such assignment, might be deemed a legal or equitable discharge of a surety
or assignor, to all of which Tenant, or such Tenant's Direct Subtenant, shall
consent in advance, and (c) expressly waive and
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surrender any then existing defense to its liability hereunder as an assignor or
a surety it being the purpose and intent of Owner and Tenant that the
obligations of Tenant hereunder, or any obligations of such Tenant's Direct
Subtenant under any sublease or any agreement with Owner, with respect to its
status as assignor or a surety shall be absolute and unconditional under any and
all circumstances, and (II) an instrument, in form and substance reasonably
satisfactory to Owner, duly executed by the assignee, in which such assignee
shall assume the observance and performance of, and agree to be personally bound
by, all of the terms, covenants and conditions of this Lease on Tenant's part to
be observed and performed, and/or all of the terms, covenants and conditions of
any sublease or any agreement with Owner on the part of Tenant's Direct
Subtenant to be observed or performed.
B. Further supplementing the provisions of Article 11, as long as Tenant is not
in default under any of the material terms, covenants or conditions of this
Lease on Tenant's part to be observed and performed, (1) Xxx Xxxx Designs, Ltd.,
Tenant named herein, or (2) a Tenant's Direct Subtenant (defined in Paragraph A
hereof) shall have the right without the prior consent of Owner, to sublet to,
or permit the use or occupancy of, all or any part of the Demised Premises by
any subsidiary or affiliate (as said terms are defined in Section 11.05.A.) of
Tenant named herein, or such Tenant's Direct Subtenant, for the use permitted in
this Lease provided that such subsidiary or affiliate is in the same general
line of business as the Tenant named herein, or such Tenant's Direct Subtenant,
and only for such period as it shall remain such subsidiary or affiliate and in
the same general line of business as the Tenant named herein, or such Tenant's
Direct Subtenant. However, no such subletting shall be valid unless, prior to
the execution thereof, Tenant, or such Tenant's Direct Subtenant, shall give
notice to Owner of the proposed subletting, and within ten (10) days prior the
commencement of said subletting, Tenant, or such Tenant's Direct Subtenant,
shall deliver to Owner an agreement, in form and substance reasonably
satisfactory to Owner, duly executed by Tenant, or such Tenant's Direct
Subtenant, and said subtenant, in which said subtenant shall assume performance
of and agree to be personally bound by, all of the terms, covenants and
conditions of this Lease which are applicable to said subtenant and such
subletting. Tenant, or such Tenant's Direct Subtenant, shall give prompt notice
to Owner of any such use or occupancy of all or any part of the Demised Premises
and such use or occupancy shall be subject and subordinate to all of the terms,
covenants and conditions of this Lease. No such use or occupancy shall operate
to vest in the user or occupant any right or interest in this Lease or the
Demised Premises. For the purposes of determining the number of subtenants or
occupants in the Demised Premises, the occupancy of any such permitted
subsidiary or affiliate of Tenant, or such Tenant's Direct Subtenant, shall be
deemed the occupancy of Tenant, or such Tenant's Direct Subtenant, and such
subsidiary or affiliate shall not be counted as a subtenant or
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occupant for the purposes of Section 11.03 and the provisions of Section 11.03
relating to Owner's option to terminate this Lease and the provisions of Section
11.03 relating to Subletting Profits shall not be applicable to any proposed
subletting to any such subsidiary or affiliate of Tenant, or such Tenant's
Direct Subtenant, pursuant to the provisions of this Section.
Section 11.06. A. Further supplementing the provisions of Article 11,
as long as Tenant is not then in default under any of the material terms,
covenants or conditions of this Lease on Tenant's part to be observed or
performed, Tenant shall have the right (without the prior consent of Owner, but
subject to full and complete compliance with all of the terms and conditions of
this Section 11.06) to assign Tenant's interest in this Lease to any person,
corporation, partnership, or other business entity which is a successor of
Tenant, either by merger or consolidation or the purchase of all or
substantially all of the assets, business and goodwill of Xxx Xxxx Designs,
Ltd., Tenant named herein, (which may include the transfer of the outstanding
capital stock of Tenant) provided that all of the following requirements are
fully and completely complied with:
(a) Owner shall be given not less than thirty (30)
days prior notice of such proposed assignment (sometimes
referred to herein as "Tenant's Proposed Assignment Notice");
and
(b) Said person, corporation, partnership or other
business entity (sometimes referred to as the "Transferee")
shall either;
(i) have a net worth, as determined in
accordance with generally accepted accounting
principles consistently applied after consummation of
such merger, consolidation or purchase and such
assignment of Tenant's interest in this Lease which
is equal to the product of (1) the then Fixed Rent
and increases thereof and (2) the number of years or
partial year remaining in the Demised Term, beginning
on the date Owner is given Tenant's Proposed
Assignment Notice, but in no event shall such net
worth be required to exceed One Million Seven Hundred
Thousand ($1,700,000) Dollars or be less than One
Million ($1,000,000) Dollars; or
(ii) increase the Security under Article 36
to a sum equal to twelve (12x) times the monthly
installment of Fixed Rent and any increases thereof
payable for the month in which the aforesaid notice
of the proposed assignment is given to Owner, which
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increased Security shall thereafter be held by Owner
in accordance with and pursuant to the provisions of
Article 36 (in the event that at the time of such
notice Owner is no longer holding any Security, then,
Tenant shall deliver new Security in an amount equal
to the aforesaid sum which shall thereafter be held
by Owner in accordance with and pursuant to the
provisions of Article 36 which shall thereupon
continue to remain in full force and effect with
respect to said new Security); and
(c) The Transferee shall in good faith intend to
continue to operate Tenant's then present business, or a
substantial portion thereof, in the Demised Premises; and
(d) The interest of Tenant named herein, in this
Lease is not the sole or principal asset of Tenant named
herein at the time of such proposed assignment; and
(e) The transaction of which such assignment is a
part is made for a bona fide business purpose other than the
transfer of Tenant's interest in this Lease; and
(f) At the time of the Tenant's Proposed Assignment
Notice by Tenant to Owner of such proposed assignment, Tenant
shall deliver to Owner either
(i) detailed statements of the
financial condition of both Tenant and the proposed
Transferee; such statements shall be prepared in
accordance with generally accepted accounting
principles applied on a consistent basis, by a firm
of reputable independent certified public
accountants, and shall (x) reflect the total true
financial condition of Tenant and the proposed
Transferee as of a date which is no more than three
(3) months prior to the date of Tenant's Proposed
Assignment Notice and with respect to the proposed
Transferee upon consummation of such merger,
consolidation, purchase, and assignment and (y)
provide sufficient information so Owner may
reasonably determine if the net worth of the proposed
Transferee complies with the requirements of
subparagraph (b)(i) hereof; such statements with
regard to Tenant shall be sworn to as correct by a
general partner or an executive officer of Tenant and
such statements with regard to the proposed
Transferee shall be sworn to as correct by a general
partner or an executive officer of the proposed
Transferee and in any event all such
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statements (which are not certified) shall be
accompanied by a declaration from the accountants who
prepared same that such accountants have no knowledge
of any material inaccuracies in such statements;
Owner acknowledges and agrees that any such statement
with respect to the proposed Transferee upon
consummation of such merger, consolidation, purchase,
and assignment may be a so called "Proforma
Statement"; to the extent available Owner shall be
supplied with the most recent certified statements of
Tenant and the proposed Transferee and all interim
statements issued after the period of such certified
statement; Tenant and the proposed Transferee shall
promptly supply Owner with any additional information
reasonably requested by Owner in connection with the
statements so submitted to Owner; or
(ii) shall deliver to Owner a
certified or Bank check, in either case drawn on a
bank which is a member of the New York Clearing
House, payable to Owner in a sum which complies with
the increased Security requirement of subparagraph
(b)(ii) hereof.
Notwithstanding anything contained in this Section 11.06 to
the contrary, no such assignment to a Transferee shall be permitted, valid or
effective against Owner if Tenant shall then be in default under any of the
material terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed or if all of the aforesaid requirements in the aforesaid
subparagraphs (a) through (f) are not all fully and completely complied with. In
the event Owner believes that the requirements of the aforesaid subparagraphs
(a) through (f) have not all been fully and completely complied with or that
there is a default by Tenant under any of the material terms, covenants or
conditions of this Lease on Tenant's part to be observed or performed Owner must
give Tenant notice of such noncompliance (sometimes referred to herein as
"Owner's 11.06 Noncompliance Notice") within thirty (30) days of the date Tenant
gives Owner Tenant's Proposed Assignment Notice, time being of the essence with
respect thereto, and such dispute between Owner and Tenant as to the validity of
such Owner's 11.06 Noncompliance Notice shall be determined by arbitration in
the City of New York in accordance with the rules and regulations then obtaining
of the American Arbitration Association or its successor. However,
notwithstanding the determination of such dispute by arbitration as provided in
the immediate preceding sentence, upon the giving of such Owner's 11.06
Noncompliance Notice, Owner shall have the right to enjoin the consummation or
affect of such assignment upon its claim that the requirements of said
subparagraphs (a) through (f) have not all been fully and completely complied
with or that there then exists a default by Tenant under any
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of the material terms, covenants or conditions of the Lease on Tenant's part to
be observed or performed and thereupon such claim or dispute shall be submitted
to such arbitration. If upon the giving of Owner's 11.06 Noncompliance Notice
Tenant voluntary agrees without the necessity of a court injunction not to
consummate any such assignment of Tenant's interest in this Lease pending the
determination of such arbitration, then, Owner shall return to Tenant the new
Security or increased Security amount delivered to Owner under the provisions of
subsection A.(b)(ii) above pending the determination of such arbitration. Any
determination by such arbitration shall be final and binding upon the parties
whether or not a judgment shall be entered in any court. If the determination of
any such arbitration or application for a court ordered injunction shall be
adverse to Owner, Owner, nevertheless, shall not be liable to Tenant for a
breach of Owner's obligations and covenants hereunder, and Tenant's sole remedy
in such event shall be to enter into the proposed assignment.
B. In addition to the requirements and conditions of
subsection A of this Section 11.06, no assignment permitted under the provisions
of said subsection A shall be valid, unless, within ten (10) days after the
execution thereof, Tenant shall deliver to Owner (I) a duplicate original
instrument of assignment in form and substance reasonably satisfactory to Owner
duly executed by Tenant, acknowledged before a notary public, in which Tenant
shall (a) waive all notices of default given to the assignee and all other
notices of every kind or description, now or hereafter provided in this Lease,
by statute or by rule of law; (b) acknowledge that Tenant's obligations with
respect to this Lease shall not be discharged, released or impaired by (i) such
assignment; (ii) any amendment or modification of this Lease (whether or not the
obligations of Tenant are increased thereby); (iii) any further assignment or
transfer of Tenant's interest in this Lease; (iv) any exercise, non- exercise or
waiver by Owner of any right, remedy, power or privilege under or with respect
to this Lease; (v) any waiver, consent, extension, indulgence or other act or
omission with respect to any of the obligations of Tenant under this Lease; (vi)
any act or thing which, but for the provisions of such assignment, might be
deemed a legal or equitable discharge of a surety or assignor, to all of which
Tenant shall consent in advance; and (c) expressly waive and surrender any then
existing defense to its liability hereunder with respect to its status as an
assignor or surety it being the purpose and intent of Owner and Tenant that the
obligations of Tenant hereunder as assignor or surety shall be absolute and
unconditional under any and all circumstances; and (II) an instrument in form
and substance reasonably satisfactory to Owner, duly executed by the proposed
assignee, acknowledged before a notary public, in which such proposed assignee
shall assume observance and performance of, and agree to be personally bound by,
all of the terms, covenants and conditions of this Lease on Tenant's part to be
performed, Tenant shall, within ten (10) days of Owner's demand,
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reimburse Owner as additional rent for all reasonable cost and expense incurred
by Owner in connection with Owner's review of the proposed assignment and
proposed Transferee, if applicable, the preparation and execution of the
aforesaid assignment and assumption.
ARTICLE 12
ACCESS TO DEMISED PREMISES
Section 12.01. Owner and its agents shall have the following rights in
and about the Demised Premises: (i) to enter the Demised Premises at all times
to examine the Demised Premises or for any of the purposes set forth in this
Article or for the purpose of performing any obligation of Owner under this
Lease or exercising any right or remedy reserved to Owner in this Lease, and if
Tenant, its officers, partners, agents or employees shall not be personally
present or shall not open and permit an entry into the Demised Premises at any
time when such entry shall be necessary or permissible, to use a master key or
to forceably enter the Demised Premises; (ii) to erect, install, use and
maintain pipes, ducts and conduits in and through the Demised Premises; (iii) to
exhibit the Demised Premises to others; (iv) to make such decorations, repairs,
alterations, improvements or additions, and to perform such maintenance,
including, but not limited to, the maintenance of all heating, air conditioning,
elevator, plumbing, electrical and other mechanical facilities, as Owner may
deem necessary or desirable; (v) to take all materials into and upon the Demised
Premises that may be required in connection with any such decorations, repairs,
alterations, improvements, additions or maintenance; and (vi) to alter, renovate
and decorate the Demised Premises at any time during the Demised Term if Tenant
shall have removed all or substantially all of Tenant's property from the
Demised Premises. Owner shall have the right, from time to time, to change the
name, number or designation by which the Building is commonly known.
Section 12.02. All parts (except surfaces facing the interior of the
Demised Premises) of all walls, windows and doors bounding the Demised Premises
(including exterior Building walls, core corridor walls, doors and entrances),
all balconies, terraces and roofs adjacent to the Demised Premises, all space in
or adjacent to the Demised Premises used for shafts, stacks, stairways, chutes,
pipes, conduits, ducts, fan rooms, heating, air conditioning, plumbing,
electrical and other mechanical facilities, service closets and other Building
facilities, and the use thereof, as well as access thereto through the Demised
Premises for the purposes of operation, maintenance, alteration and repair, are
hereby reserved to Owner. Owner also reserves the right at any time to change
the arrangement or location of entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets and other public parts of the Building,
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provided any such change does not permanently and unreasonably obstruct Tenant's
access to the Demised Premises and provided further that, nothing contained in
the immediate preceding sentence shall permit Owner to materially diminish
access to the Demised Premises nor in any material way change the location of
the entrance to the Demised Premises with respect to the passenger elevators
serving the floor on which the Demised Premises is located. Nothing contained in
this Article shall impose any obligation upon Owner with respect to the
operation, maintenance, alteration or repair of the Demised Premises or the
Building.
Section 12.03. Owner and its agents shall have the right to permit
access to the Demised Premises, whether or not Tenant shall be present, to any
receiver, trustee, assignee for the benefit of creditors, sheriff, marshal or
court officer entitled to, or reasonably purporting to be entitled to, such
access for the purpose of taking possession of, or removing, any property of
Tenant or any other occupant of the Demised Premises, or for any other lawful
purpose, or by any representative of the fire, police, building, sanitation or
other department of the City, State or Federal Governments. Neither anything
contained in this Section, nor any action taken by Owner under this Section,
shall be deemed to constitute recognition by Owner that any person other than
Tenant has any right or interest in this Lease or the Demised Premises.
Section 12.04. The exercise by Owner or its agents of any right
reserved to Owner in this Article shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Owner, or its agents, or upon any lessor under any
ground or underlying lease, by reason of inconvenience or annoyance to Tenant,
or injury to or interruption of Tenant's business, or otherwise.
Section 12.05. A. Supplementing the provisions of Sections
13.01 and 13.02, Owner agrees that except in cases of emergency, any entry upon
the Demised Premises pursuant to the provisions of said Sections shall be made
at reasonable times, and only after reasonable advance notice (which may be
mailed, delivered or left at the Demised Premises, notwithstanding any contrary
provisions of Article 27), and any work performed or installations made pursuant
to said Section shall be made with reasonable diligence and any such entry, work
or installations shall be made in a manner designed to minimize interference
with Tenant's normal business operations (however, nothing contained in this
Section shall be deemed to impose upon Owner any obligation to employ
contractors or labor at so-called overtime or other premium pay rates).
B. Further supplementing the provisions of
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Section 13.01, Owner agrees that any pipes, ducts or conduits installed in or
through the Demised Premises during the Demised Term pursuant to the provisions
of Section 13.01, shall either be concealed behind, beneath or within
partitioning, columns, ceilings or floors, or completely furred at points
immediately adjacent to partitioning, columns or ceilings, and that when the
installation of such pipes, ducts or conduits shall be completed, such pipes,
ducts or conduits shall not reduce by more than an immaterial amount the usable
area of the Demised Premises.
ARTICLE 13
VAULT SPACE
ARTICLE 14
CERTIFICATE OF OCCUPANCY
Section 14.01. Tenant will not at any time use or occupy, or permit the
use or occupancy of, the Demised Premises in violation of any Certificate of
Occupancy covering the Demised Premises. Owner agrees that a temporary or
permanent Certificate of Occupancy covering the Demised Premises will be in
force on the Commencement Date permitting the Demised Premises to be used as
"offices and wholesale showroom". However, neither such agreement, nor any other
provision of this Lease, nor any act or omission of Owner, its agents or
contractors, shall be deemed to constitute a representation or warranty that the
Demised Premises, or any part thereof, may be lawfully used or occupied for any
particular purpose or in any particular manner, in contradistinction to mere use
as "offices and wholesale showroom".
ARTICLE 15
DEFAULT
Section 15.01. Upon the occurrence, at any time prior to or during the
Demised Term, of any one or more of the following events (referred to as "Events
of Default"):
(a) if Tenant shall default in the payment when due of any
installment of Fixed Rent or in the payment when due of any additional
rent, and such default shall continue for a period of ten (10) days after
notice by Owner to Tenant of such default; or
(b) if Tenant shall default in the observance or performance of any
term, covenant or condition of this Lease on Tenant's part to be observed
or performed (other than the
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covenants for the payment of Fixed Rent and additional rent) and Tenant
shall fail to remedy such default within thirty (30) days after notice by
Owner to Tenant of such default, or if such default is of such a nature
that it cannot be completely remedied within said period of thirty (30)
days and Tenant shall not commence within said period of thirty (30) days,
or shall not thereafter diligently prosecute to completion, all steps
necessary to remedy such default; or
(c) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under the present or any future federal bankruptcy act or any other
present or future applicable federal, state or other statute or law, or
shall make an assignment for the benefit of creditors, or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or of all or any part of Tenant's property; or
(d) if, within thirty (30) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or
otherwise, seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present
or any future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, such proceeding shall
not have been dismissed, or if, within thirty (30) days after the
appointment of any trustee, receiver or liquidator of Tenant, or of all or
any part of Tenant's property, without the consent or acquiescence of
Tenant, such appointment shall not have been vacated or otherwise
discharged, or if any execution or attachment shall be issued against
Tenant or any of Tenant's property pursuant to which the Demised Premises
shall be taken or occupied or attempted to be taken or occupied; or
(e) if Tenant shall default in the observance or performance of any
term, covenant or condition on Tenant's part to be observed or performed
under any other lease with Owner of space in the Building and such default
shall continue beyond any grace period set forth in such other lease for
the remedying of such default; or
(f) if the Demised Premises shall become vacant, deserted
or abandoned; or
(g) if (i) Tenant's interest in this Lease shall devolve upon or
pass to any person, whether by operation of law or
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otherwise, or (ii) there shall be any sale, pledge, transfer or other
alienation described in Section 11.01 of this Lease which is deemed an
assignment of this Lease for purposes of said Section 11.01, except as
expressly permitted under Article 11;
then, upon the occurrence, at any time prior to or during the Demised Term, of
any one or more such Events of Default, Owner, at any time thereafter, at
Owner's option, may give to Tenant a five (5) days' notice of termination of
this Lease and, in the event such notice is given, this Lease and the Demised
Term shall come to an end and expire (whether or not said term shall have
commenced) upon the expiration of said five (5) days with the same effect as if
the date of expiration of said five (5) days were the Expiration Date, but
Tenant shall remain liable for damages and all other sums payable pursuant to
the provisions of Article 17.
Section 15.02. If, at any time (i) Tenant shall be comprised of two (2) or
more persons, or (ii) Tenant's obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
Lease shall have been assigned, the word "Tenant", as used in subsections (c)
and (d) of Section 15.01, shall be deemed to mean any one or more of the persons
primarily or secondarily liable for Tenant's obligations under this Lease. Any
monies received by Owner from or on behalf of Tenant during the pendency of any
proceeding of the types referred to in said subsections (c) and (d) shall be
deemed paid as compensation for the use and occupation of the Demised Premises
and the acceptance of any such compensation by Owner shall not be deemed an
acceptance of rent or a waiver on the part of Owner of any rights under Section
15.01.
ARTICLE 16
REMEDIES
Section 16.01. If Tenant shall default in the payment when due of any
installment of Fixed Rent or in the payment when due of any additional rent and
if such default shall continue for a period of ten (10) days after notice by
Owner to Tenant of such default which ten (10) day notice may be given to Tenant
in the manner required or provided for in Article 7 of the Real Property Action
and Proceedings Law of the State of New York or any successor law thereto
notwithstanding any provisions of this Lease to the contrary, or if this Lease
and the Demised Term shall expire and come to an end as provided in Article 15:
(a) Owner and its agents and servants may immediately, or at any
time after such default or after the date upon which this Lease and the
Demised Term shall expire and come to an end, re-enter the Demised
Premises or any part thereof, without notice,
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either by summary proceedings or by any other applicable action or
proceeding, or by force or otherwise (without being liable to indictment,
prosecution or damages therefor), and may repossess the Demised Premises
and dispossess Tenant and any other persons from the Demised Premises and
remove any and all of their property and effects from the Demised
Premises; and
(b) Owner, at Owner's option, may relet the whole or any part or
parts of the Demised Premises, from time to time, either in the name of
Owner or otherwise, to such tenant or tenants, for such term or terms
ending before, on or after the Expiration Date, at such rental or rentals
and upon such other conditions, which may include concessions and free
rent periods, as Owner, in its sole discretion, may determine. Owner shall
have no obligation to relet the Demised Premises or any part thereof and
shall in no event be liable for refusal or failure to relet the Demised
Premises or any part thereof, or, in the event of any such reletting, for
refusal or failure to collect any rent due upon any such reletting, and no
such refusal or failure shall operate to relieve Tenant of any liability
under this Lease or otherwise to affect any such liability; Owner, at
Owner's option, may make such repairs, replacements, alterations,
additions, improvements, decorations and other physical changes in and to
the Demised Premises as Owner, in its sole discretion, considers advisable
or necessary in connection with any such reletting or proposed reletting,
without relieving Tenant of any liability under this Lease or otherwise
affecting any such liability.
Section 16.02. Tenant hereby waives the service of any notice of intention
to re-enter or to institute legal proceedings to that end which may otherwise be
required to be given under any present or future law. Tenant, on its own behalf
and on behalf of all persons claiming through or under Tenant, including all
creditors, does further hereby waive any and all rights which Tenant and all
such persons might otherwise have under any present or future law to redeem the
Demised Premises, or to re-enter or repossess the Demised Premises, or to
restore the operation of this Lease, after (i) Tenant shall have been
dispossessed by a judgment or by warrant of any court or judge, or (ii) any
re-entry by Owner, or (iii) any expiration or termination of this Lease and the
Demised Term, whether such dispossess, re-entry, expiration or termination shall
be by operation of law or pursuant to the provisions of this Lease. The words
"re-enter", "re-entry" and "re-entered" as used in this Lease shall not be
deemed to be restricted to their technical legal meanings. In the event of a
breach or threatened breach by Tenant, or any persons claiming through or under
Tenant, of any term, covenant or condition of this Lease on Tenant's part to be
observed or performed, Owner shall have the right to enjoin such breach and the
right to invoke any other remedy allowed by law or in equity as if re-entry,
summary
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proceedings and other special remedies were not provided in this Lease for such
breach. The right to invoke the remedies hereinbefore set forth is cumulative
and shall not preclude Owner from invoking any other remedy allowed by law or in
equity.
ARTICLE 17
DAMAGES
Section 17.01. If this Lease and the Demised Term shall expire and come to
an end as provided in Article 15, or by or under any summary proceeding or any
other action or proceeding, or if Owner shall re-enter the Demised Premises as
provided in Article 16, or by or under any summary proceeding or any other
action or proceeding, then, in any of said events:
(a) Tenant shall pay to Owner all Fixed Rent, additional rent and
other charges payable under this Lease by Tenant to Owner to the date upon
which this Lease and the Demised Term shall have expired and come to an
end or to the date of re-entry upon the Demised Premises by Owner, as the
case may be; and
(b) Tenant shall also be liable for and shall pay to Owner, as
damages, any deficiency (referred to as "Deficiency") between the Fixed
Rent reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the Demised Term and the net amount,
if any, of rents collected under any reletting effected pursuant to the
provisions of Section 16.01 for any part of such period (first deducting
from the rents collected under any such reletting all of Owner's expenses
in connection with the termination of this Lease or Owner's re-entry upon
the Demised Premises and with such reletting including, but not limited
to, all repossession costs, brokerage commissions, legal expenses,
attorney's fees, alteration costs and other expenses of preparing the
Demised Premises for such reletting). Any such Deficiency shall be paid in
monthly installments by Tenant on the days specified in this Lease for
payment of installments of Fixed Rent, Owner shall be entitled to recover
from Tenant each monthly Deficiency as the same shall arise, and no suit
to collect the amount of the Deficiency for any month shall prejudice
Owner's right to collect the Deficiency for any subsequent month by a
similar proceeding. Solely for the purposes of this subsection (b), the
term "Fixed Rent" shall mean the Fixed Rent in effect immediately prior to
the date upon which this Lease and the Demised Term shall have expired and
come to an end, or the date of re-entry upon the Demised Premises by
Owner, as the case may be, adjusted, from time to time, to reflect any
increases which would have been payable pursuant to any of the provisions
of this Lease including, but not limited to, the
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provisions of Article 23 of this Lease if the term hereof had not been
terminated; and
(c) At any time after the Demised Term shall have expired and come
to an end or Owner shall have re-entered upon the Demised Premises, as the
case may be, whether or not Owner shall have collected any monthly
Deficiencies as aforesaid, Owner shall be entitled to recover from Tenant,
and Tenant shall pay to Owner, on demand, as and for liquidated and agreed
final damages, a sum equal to the amount by which the Fixed Rent reserved
in this Lease for the period which otherwise would have constituted the
unexpired portion of the Demised Term exceeds the then fair and reasonable
rental value of the Demised Premises for the same period, both discounted
to present worth at the rate of four (4%) per cent per annum in
calculating the aforesaid damages due Owner from Tenant, the amount of any
Deficiencies actually paid by Tenant to Owner shall be taken into account.
If, before presentation of proof of such liquidated damages to any court,
commission or tribunal, the Demised Premises, or any part thereof, shall
have been relet by Owner for the period which otherwise would have
constituted the unexpired portion of the Demised Term, or any part
thereof, 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 Demised Premises so relet during the term of the
reletting. Solely for the purposes of this subsection (c), the term "Fixed
Rent" shall mean the Fixed Rent in effect immediately prior to the date
upon which this Lease and the Demised Term shall have expired and come to
an end, or the date of re-entry upon the Demised Premises by Owner, as the
case may be, adjusted to reflect any increases pursuant to the provisions
of Article 23 for the Escalation Year and Tax Escalation Year immediately
preceding such event.
Section 17.02. If the Demised Premises, or any part thereof, shall be
relet together with other space in the Building, the rents collected or reserved
under any such reletting and the expenses of any such reletting shall be
equitably apportioned for the purposes of this Article 17. Tenant shall in no
event be entitled to any rents collected or payable under any reletting, whether
or not such rents shall exceed the Fixed Rent reserved in this Lease. Nothing
contained in Articles 15, 16 or this Article shall be deemed to limit or
preclude the recovery by Owner from Tenant of the maximum amount allowed to be
obtained as damages by any statute or rule of law, or of any sums or damages to
which Owner may be entitled in addition to the damages set forth in Section
17.01.
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ARTICLE 18
FEES AND EXPENSES; INDEMNITY
Section 18.01. If Tenant shall default in the observance or performance of
any term, covenant or condition of this Lease on Tenant's part to be observed or
performed, Owner, at any time thereafter and without notice in cases of
emergency, or in any other case after thirty (30) days notice (which may be
mailed, delivered or left at the Demised Premises notwithstanding any contrary
provisions of Article 26), may remedy such default for Tenant's account and at
Tenant's expense, without thereby waiving any other rights or remedies of Owner
with respect to such default.
Section 18.02. Tenant agrees to indemnify and save Owner harmless of and
from all loss, cost, liability, damage and expense including, but not limited
to, reasonable counsel fees, penalties and fines, incurred in connection with or
arising from (i) any default by Tenant in the observance or performance of any
of the terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed, or (ii) the use or occupancy or manner of use or
occupancy of the Demised Premises by Tenant or any person claiming through or
under Tenant, or (iii) any acts, omissions or negligence of Tenant or any such
person, or the contractors, agents, servants, employees, visitors or licensees
of Tenant or any such person, in or about the Demised Premises or the Building
either prior to, during, or after the expiration of, the Demised Term,
including, but not limited to, any acts, omissions or negligence in the making
or performing of any Alterations. Tenant further agrees to indemnify and save
harmless Owner, Owner's agents, and the lessor or lessors under all ground or
underlying leases, of and from all loss, cost, liability, damage and expense,
including, but not limited to, reasonable counsel fees, incurred in connection
with or arising from any claims by any persons by reason of injury to persons or
damage to property occasioned by any use, occupancy, act, omission or negligence
referred to in the preceding sentence. If any action or proceeding shall be
brought against Owner or Owner's agents, or the lessor or lessors under any
ground or underlying lease, based upon any such claim and if Tenant, upon notice
from Owner, shall cause such action or proceeding to be defended at Tenant's
expense by counsel acting for Tenant's insurance carriers in connection with
such defense or by other counsel reasonably satisfactory to Owner, without any
disclaimer of liability by Tenant in connection with such claim, Tenant shall
not be required to indemnify Owner, Owner's agents, or any such lessor for
counsel fees in connection with such action or proceeding. Tenant shall maintain
comprehensive public liability insurance against any claims by reason of
personal injury, death and property damage occurring in or about the Demised
Premises covering, without limitation, the operation of any private elevators,
escalators or conveyors in or
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serving the Demised Premises or any part thereof, whether installed by Owner,
Tenant or others, and shall furnish to Owner duplicate original policies of such
insurance at least ten (10) days prior to the Commencement Date and at least ten
(10) days prior to the expiration of the term of any such policy previously
furnished by Tenant, in which policies Owner, its agents and any lessor under
any ground or underlying lease shall be named as parties insured, which policies
shall be issued by companies, and shall be in form and amounts, satisfactory to
Owner provided that the companies, form and amount shall be reasonably
consistent with the requirements imposed on other tenants of the Building
leasing space reasonably similar in size to the Demised Premises.
Section 18.03. Tenant shall pay to Owner, within five (5) days next
following rendition by Owner to Tenant of bills or statements therefor: (i) sums
equal to all expenditures made and monetary obligations incurred by Owner
including, but not limited to, expenditures made and obligations incurred for
reasonable counsel fees, in connection with the remedying by Owner, for Tenant's
account pursuant to the provisions of Section 18.01, of any default of Tenant,
and (ii) sums equal to all losses, costs, liabilities, damages and expenses
referred to in Section 18.02, and (iii) sums equal to all expenditures made and
monetary obligations incurred by Owner including, but not limited to,
expenditures made and obligations incurred for reasonable counsel fees, in
collecting or attempting to collect the Fixed Rent, any additional rent or any
other sum of money accruing under this Lease after default in the payment
thereof beyond applicable grace periods or in enforcing or attempting to enforce
any rights of Owner under this Lease or pursuant to law, whether by the
institution and prosecution of summary proceedings or otherwise; and (iv) all
other sums of money (other than Fixed Rent) accruing from Tenant to Owner under
the provisions of this Lease. Any sum of money (other than Fixed Rent) accruing
from Tenant to Owner pursuant to any provision of this Lease whether prior to or
after the Commencement Date, may, at Owner's option, be deemed additional rent,
and Owner shall have the same remedies for Tenant's failure to pay any item of
additional rent when due as for Tenant's failure to pay any installment of Fixed
Rent when due. Tenant's obligations under this Article shall survive the
expiration or sooner termination of the Demised Term.
Section 18.04. If Tenant shall fail to make payment of any installment of
Fixed Rent or any additional rent within ten (10) days after the date when such
payment is due, Tenant shall pay to Owner, in addition to such installment of
Fixed Rent or such additional rent, as the case may be, as a late charge and as
additional rent, a sum equal to two (2%) percent per annum above the then
current prime rate, as hereinafter defined, of the amount unpaid computed from
the date such payment was due to and including the date of payment. The term
"prime
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rate" shall mean the rate of interest announced publicly by Citibank, N.A. or
its successor, from time to time, as Citibank, N.A.'s or such successor's base
rate, or if there is no such base rate, then the rate of interest charged by
Citibank N.A. or such successor to its most creditworthy customers on commercial
loans having a ninety (90) day duration.
ARTICLE 19
ENTIRE AGREEMENT
Section 19.01. Except for "Tenant's Existing Lease" (defined in Section
37.01) This Lease contains the entire agreement between the parties and all
prior negotiations and agreements are merged in this Lease. Neither Owner nor
Owner's agents have made any representations or warranties with respect to the
Demised Premises, the Building, the Real Property or this Lease except as
expressly set forth in this Lease and no rights, easements or licenses are or
shall be acquired by Tenant by implication or otherwise unless expressly set
forth in this Lease. This Lease may not be changed, modified, or discharged in
whole or in part, orally and no executory agreement shall be effective to
change, modify or discharge, in whole or in part, this Lease or any obligations
under this Lease, unless such agreement is set forth in a written instrument
executed by the party against whom enforcement of the change, modification or
discharge is sought. All references in this Lease to the consent or approval of
Owner shall be deemed to mean the written consent to Owner, or the written
approval of Owner, as the case may be, and no consent or approval of Owner shall
be effective for any purpose unless such consent or approval is set forth in a
written instrument executed by Owner.
ARTICLE 20
END OF TERM
Section 20.01. On the date upon which the Demised Term shall expire and
come to an end, whether pursuant to any of the provisions of this Lease or by
operation of law, and whether on or prior to the Expiration Date, Tenant, at
Tenant's sole cost and expense, (i) shall quit and surrender the Demised
Premises to Owner, broom clean and in good order and condition, ordinary wear
excepted, and (ii) shall remove all of Tenant's Personal Property and all other
property and effects of Tenant and all persons claiming through or under Tenant
from the Demised Premises and the Building, and (iii) shall repair all damage to
the Demised Premises occasioned by such removal, and (iv) shall, at Owner's
election, remove any private interior staircases in the Demised Premises or
connecting the Demised Premises or any part thereof with any other space
(referred to herein as the "Other Space") in the Building occupied by Tenant,
and restore those portions of the
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Demised Premises, the Other Space and the Building affected by any such
staircases (including, but not limited to, the slabbing over of any openings) to
the condition of each which existed prior to the installation of any such
staircases. and repair any damage to the Demised Premises, Other Space and the
Building occasioned by such removal. Notwithstanding the provisions of
subdivision (iv) of the foregoing sentence, in the event Owner does not elect to
have removed any such staircase referred to therein, any such staircase shall be
and remain the property of Owner at no cost or expense to Owner. Owner shall
have the right to retain any property and effects which shall remain in the
Demised Premises after the expiration or sooner termination of the Demised Term,
and any net proceeds from the sale thereof, without waiving Owner's rights with
respect to any default by Tenant under the foregoing provisions of this Section.
Tenant expressly waives, for itself and for any person claiming through or under
Tenant, any rights which Tenant or any such person may have under the provisions
of Section 2201 of the New York Civil Practice Law and Rules and of any
successor law of like import then in force, in connection with any holdover
summary proceedings which Owner may institute to enforce the foregoing
provisions of this Article. If said date upon which the Demised Term shall
expire and come to an end shall fall on Sunday or holiday, then Tenant's
obligations under the first sentence of this Section shall be performed on or
prior to the Saturday or business day immediately preceding such Sunday or
holiday. Tenant's obligations under this Section shall survive the expiration or
sooner termination of the Demised Term.
ARTICLE 21
QUIET ENJOYMENT
Section 21.01. Owner covenants and agrees with Tenant that upon Tenant
paying the Fixed Rent and additional rent reserved in this Lease and observing
and performing all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the Demised Premises during the Demised Term, subject, however, to the
terms, covenants and conditions of this Lease including, but not limited to, the
provisions of Section 36.01, and subject to the ground and underlying leases and
the mortgages referred to in Section 7.01.
ARTICLE 22
ESCALATION
Section 22.01. In the determination of any increase in the Fixed Rent
under the provisions of this Article, Owner and Tenant agree as follows:
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A. The term "Tax Escalation Year" shall mean each fiscal year commencing
July 1st and ending on the following June 30th which shall include any part of
the Demised Term.
B. The term "Escalation Year" shall mean any calendar year which shall
include any part of the Demised Term.
C. The term "Taxes" shall be deemed to include all real estate taxes and
assessments, special or otherwise, upon or with respect to (i) the Real Property
and (ii) the Real Property affected by the Air Rights lease and payable by the
Tenant thereunder in accordance with the provisions of the Air Rights lease,
imposed by the City or County of New York or any other taxing authority,
provided that the tax assessed by any other taxing authority is to create a new
or additional source of revenue through taxation of real estate as such. If, due
to any change in the method of taxation, any franchise, income, profit, sales,
rental, use and occupancy, or other tax shall be substituted for, or levied
against Owner or any owner of the Building or the Real Property, or the Real
Property affected by the Air Rights lease, in lieu of any real estate taxes or
assessments upon or with respect to (i) the Real Property or (ii) the Real
Property affected by the Air Rights lease which would otherwise have been
payable by the Tenant thereunder in accordance with the Provisions of the Air
Rights lease, such tax shall be included in the term Taxes for the purposes of
this Article.
D. The term "Owner's Basic Tax Liability" shall mean a sum equal to Taxes
payable for the fiscal tax year commencing July 1, 1992 and ending June 30,
1993.
E. The term "Demised Premises Area" shall mean 7,000 square feet.
F. The term "Building Area" shall mean 527,815 square feet.
G. The term "Tenant's Proportionate Share" shall mean the fraction, the
denominator of which is the Building Area and the numerator of which is the
Demised Premises Area.
H. The term "R.A.B." shall mean the Realty Advisory Board on Labor
Relations, Incorporated, or its successor.
I. The term "Local 32B-32J" shall mean Local 32B-32J of the Service
Employees International Union, AFL-CIO, or its successor.
J. The term "Class A Office Buildings" shall mean office buildings in the
same class or category as the Building under any agreement between R.A.B. and
Local 32B-32J, regardless of the designation given to such office buildings in
any such agreement.
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K. The term "Labor Rates" shall mean a sum equal to the regular hourly
wage rate including fringe benefits required to be paid to or for the benefit of
Others employed in Class A Office Buildings pursuant to an agreement between
R.A.B. and Local 32B-32J; provided, however, that if, as of January 1st of any
Escalation Year, any such agreement shall require Others in Class A Office
Buildings to be regularly employed on days or during hours when overtime or
other premium pay rates are in effect pursuant to such agreement, then the term
"regular hourly wage rate" including fringe benefits, as used in this subsection
K, shall mean the average hourly wage rate including fringe benefits for the
hours in a calendar week during which Others are required to be regularly
employed; and provided, further, that if no such agreement is in effect as of
January 1st of any Escalation Year with respect to Others, then the term
"regular hourly wage rate" including fringe benefits, as used in this subsection
K, shall mean the regular hourly wage rate including fringe benefits actually
paid to or for the benefit of Others employed in the Building by Owner or by an
independent contractor engaged by Owner. As used herein the term "fringe
benefits" shall mean all fringe benefits, including, but not limited to, amounts
for, allocable to or attributable to, pensions, welfare funds, dental and
training fund contributions, holidays, absent fund, social security,
unemployment, disability benefits, health, life, accident, workmen's
compensation and other types of insurance. If length of service shall be a
factor in determining any element of fringe benefits such as vacation pay, it
shall be conclusively presumed that all employees have two years of service. The
hourly cost of fringe benefits shall be computed by dividing the annual total
amount so payable by Owner to or for the benefit of Others for fringe benefits
by the number of hours (including any mandatory overtime) that Others are
actually required to work in that Escalation Year, after first subtracting all
the paid time off, including, but not limited to, vacations, sick days,
birthdays, jury duty, lunch hours, medical check up, relief time and absentee
hours and other paid time off, to which Others may be entitled pursuant to an
agreement between R.A.B. and Local 32B-32J or if there is no such agreement in
effect as of January 1st of any Escalation Year with respect to Others, pursuant
to any agreement with Others by Owner or by an independent contractor engaged by
Owner.
L. The term "Others" shall mean that classification of employee engaged in
the general maintenance and operation of Class A Office Buildings most nearly
comparable to the classification now applicable to "others" in the current
agreements between R.A.B. and Local 32B-32J.
M. The term "Owner's Tax Statement" shall mean an instrument containing a
computation of any increase in the Fixed Rent pursuant to the provisions of
Section 22.02. A. of this Article.
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N. The term "Owner's Labor Rate Statement" shall mean an instrument
containing a computation of any increase in the Fixed Rent pursuant to the
provisions of Section 22.04 of this Article.
Section 22.02. A. If Taxes payable in any Tax Escalation Year shall be in
such amount as shall constitute an increase above Owner's Basic Tax Liability,
the Fixed Rent for such Tax Escalation Year shall be increased by a sum equal to
Tenant's Proportionate Share of any such increase in Taxes.
B. Unless the Commencement Date shall occur on a July 1st, any increase in the
Fixed Rent pursuant to the provisions of subsection A of this Section 23.02 for
the Tax Escalation Year in which the Commencement Date shall occur shall be
apportioned in that percentage which the number of days in the period from the
Commencement Date to June 30th of such Tax Escalation Year, both inclusive,
shall bear to the total number of days in such Tax Escalation Year. Unless the
Demised Term shall expire on a June 30th, any increase in the Fixed Rent
pursuant to the provisions of said subsection A for the Tax Escalation Year in
which the date of the expiration of the Demised Term shall occur shall be
apportioned in that percentage which the number of days in the period from July
1st of such Tax Escalation Year to such date of expiration, both inclusive,
shall bear to the total number of days in such Tax Escalation Year.
Section 22.03. A. Owner shall render to Tenant, either in accordance with
the provisions of Article 26 or by personal delivery at the Demised Premises, an
Owner's Tax Statement with respect to each Tax Escalation Year, either prior to
or during such Tax Escalation Year. Owner agrees that the first such Owner's Tax
Statement shall not be rendered more than sixty (60) days prior to the date the
Taxes which are the subject matter of such Owner's Tax Statement are due to be
paid. Owner's failure to render an Owner's Tax Statement with respect to any Tax
Escalation Year shall not prejudice Owner's right to recover any sums due to
Owner hereunder with respect to such Tax Escalation Year, nor shall it deprive
Tenant of any credit to which it otherwise might be entitled for such Tax
Escalation Year pursuant to the provisions of subsection D of this Section
22.03. The obligations of Owner and Tenant under the provisions of Section 22.02
and this Section 22.03 with respect to any increase in the Fixed Rent or any
credit to which Tenant may be entitled shall survive the expiration or any
sooner termination of the Demised Term. Within ten (10) days next following
rendition of the first Owner's Tax Statement which shows an increase in the
Fixed Rent for any Tax Escalation Year, Tenant shall pay to Owner one half (1/2)
of the amount of the increase shown upon such Owner's Tax Statement for such Tax
Escalation Year (in the event that the Commencement Date shall occur during such
Tax Escalation Year on a date other than a July 1st, such one half (1/2) shall
be apportioned so that Tenant shall pay that percentage thereof which the
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number of days in the period from the Commencement Date to the date upon which
the next installment of Taxes is required to be paid by Owner shall bear to one
hundred eighty (180) days thereby giving effect to the apportionment provisions
of subsection B of Section 22.02). In order to provide for current payments on
account of (i) the next installment of Taxes payable by Owner for such Tax
Escalation Year, if any, and (ii) future potential increases in the Fixed Rent
which may be payable by Tenant pursuant to the provisions of subsection A of
Section 22.02 for future Tax Escalation Years. Tenant shall (a) pay to Owner, on
the first day of the calendar month next following the rendition of such Owner's
Tax Statement, a sum equal to one-twelfth (1/12th) of the increase in the Fixed
Rent shown upon such Owner's Tax Statement for such Tax Escalation Year (before
any apportionment pursuant to the provisions of subsection B of Section 22.02)
multiplied by the number of months which may have elapsed between either (x)
July 1st of such Tax Escalation Year if such Owner's Tax Statement is rendered
between July 1st and December 31st of such Tax Escalation Year or (y) January
1st of such Tax Escalation Year if such Owner's Tax Statement is rendered
between January 1st and June 30th of such Tax Escalation Year and the month in
which such payment is made, and (b) thereafter pay to Owner on the first day of
each month of the Demised Term (until rendition by Owner of a new Owner's Tax
Statement) a sum equal to one-twelfth (1/12) of the increase in the Fixed Rent
payable pursuant to the provisions of subsection A of Section 22.02 for the Tax
Escalation Year with respect to which Owner has most recently rendered an
Owner's Tax Statement (before any apportionment pursuant to the provisions of
subsection B of Section 22.02); each such monthly installment shall be added to
and payable as part of each monthly installment of Fixed Rent.
B. Following rendition of each subsequent Owner's Tax Statement a
reconciliation shall be made as follows: Tenant shall be debited with any
increase in the Fixed Rent shown upon such Owner's Tax Statement and credited
with the aggregate amount, if any, paid by Tenant in accordance with the
provisions of subsection A of this Section on account of potential future
increases in the Fixed Rent pursuant to subsection 22.02.A. which has not
previously been credited against increases in the Fixed Rent shown upon Owner's
Tax Statements. Tenant shall pay any net debit balance to Owner within thirty
(30) days next following rendition by Owner, either in accordance with the
provisions of Article 26 or by personal delivery at the Demised Premises of an
invoice for such net debit balance; any net credit balance shall be applied as
an adjustment against the next accruing monthly installment as provided in
subdivision (b) of subsection A of this Section 22.03. Upon Tenant's request,
Owner shall furnish to Tenant a photocopy of the government xxxx for Taxes
relevant to Owner's Tax Statement rendered to Tenant.
C. Tenant acknowledges that under the present law Taxes are
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payable by Owner (i) with respect to a fiscal year commencing July 1st and
ending on the following June 30th and (ii) in two (2) installments, in advance,
the first of which is payable on July 1st and the second and final payment of
which is payable on the following January 1st. Tenant further acknowledges that
it is the purpose and intent of this Section 22.03 to provide Owner with
Tenant's Proportionate Share of the increase in the Fixed Rent pursuant to the
provisions of subsection A of Section 22.02 at or about the time such
installment of Taxes is required to be paid by Owner without penalty or
interest. Accordingly, Tenant agrees that if the number of such installments,
and/or the time for payment thereof, and/or the fiscal year used for purposes of
Taxes, is changed, then, (a) at the time that any such revised installment is
payable by Owner, Tenant shall pay to Owner the amount which shall provide Owner
with Tenant's Proportionate Share of the increase in the Fixed Rent pursuant to
the provisions of Section 22.02.A applicable to the revised installment of Taxes
then required to be paid by Owner and (b) this Article shall be appropriately
adjusted to reflect such change and the time for payment by Tenant to Owner of
Tenant's Proportionate Share of any increase in Taxes as provided in this
Article shall be appropriately revised so that Owner shall always be provided
with Tenant's Proportionate Share of the increase in the Fixed Rent prior to the
installment of Taxes required to be paid by Owner.
D. If, as a result of any application or proceeding brought by or on
behalf of Owner, Owner's Basic Tax Liability shall be decreased, Owner's Tax
Statement next following such decrease shall include any adjustment of the Fixed
Rent for all prior Tax Escalation Years reflecting a debit to Tenant equal to
the amount by which (a) the aggregate Fixed Rent payable with respect to all
such prior Tax Escalation Years (as increased pursuant to the operation of the
provisions of subsection A of Section 22.02) based upon such reduction of
Owner's Basic Tax Liability shall exceed (b) the aggregate Fixed Rent actually
paid by Tenant with respect to all such prior Tax Escalation Years. If, as a
result of any application or proceeding brought by or on behalf of Owner for
reduction of the assessed valuation of the Real Property for any fiscal tax year
subsequent to the fiscal tax year commencing July 1st, 1992, and expiring June
30th, 1993 there shall be a decrease in Taxes for any Tax Escalation Year with
respect to which Owner shall have previously rendered an Owner's Tax Statement,
Owner's Tax Statement next following such decrease shall include an adjustment
of the Fixed Rent for such Tax Escalation Year reflecting a credit to Tenant
equal to the amount by which (i) the Fixed Rent actually paid by Tenant with
respect to such Tax Escalation Year (as increased pursuant to the operation of
the provisions of subsection A of Section 22.02), shall exceed (ii) the Fixed
Rent payable with respect to such Tax Escalation Year (as increased pursuant to
the operation of the provisions of subsection A of Section 22.02) based upon
such reduction of the assessed valuation.
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Tenant shall not bring or cause to be brought any application or proceeding for
reduction of the assessed valuation of the Real Property. Tenant shall pay to
Owner within thirty (30) days after demand, as additional rent under this Lease,
a sum equal to Tenant's Proportionate Share of all costs and expenses,
including, without limitation, counsel fees, paid or incurred by Owner in
connection with any application or proceeding brought for reduction of the
assessed valuation of the Real Property or any other contest of Taxes upon the
Real Property for any Tax Escalation Year, whether or not such application,
proceeding or other contest was commenced and/or settled and/or determined prior
to the Tax Escalation Year in question.
Section 22.04. A. If Labor Rates in effect as of January 1st of any
Escalation Year shall be such as to constitute an increase above Labor Rates in
effect as of January 1, 1993 the Fixed Rent for such Escalation Year shall be
increased by a sum equal to the number of square feet of the Demised Premises
Area multiplied by one hundred (100%) percent of the number of cents (inclusive
of any fractions of a cent) of any such increase in Labor Rates.
B. Unless the Commencement Date shall occur on a January 1st, any increase
in the Fixed Rent pursuant to the provisions of subsection A of this Section
22.04 for the Escalation Year in which the Commencement Date shall occur shall
be apportioned in that percentage which the number of days in the period from
the Commencement Date to December 31st of such Escalation Year, both inclusive,
shall bear to the total number of days in such Escalation Year. Unless the
Demised Term shall expire on a December 31st, any increase in the Fixed Rent
pursuant to the provisions of Subsection A of this Section 22.04 for the
Escalation Year in which the date of the expiration of the Demised Term shall
occur shall be apportioned in that percentage which the number of days in the
period from January 1st of such Escalation Year to such date of expiration, both
inclusive, shall bear to the total number of days in such Escalation Year.
C. Owner shall render to Tenant, either in accordance with the provisions
of Article 26 or by personal delivery at the Demised Premises, an Owner's Labor
Rate Statement with respect to each Escalation Year, either delivery at the
Demised Premises, an Owner's Labor Rate Statement with respect to each
Escalation Year, either to any Escalation Year shall not prejudice Owner's right
to recover any sums due to Owner hereunder with respect to such Escalation Year.
The obligations of Tenant under the provisions of this Article with respect to
any increase in the Fixed Rent shall survive the expiration or any sooner
termination of the Demised Term. Following rendition of an Owner's Labor Rate
Statement which shows an increase in the Fixed Rent for any Escalation Year,
Tenant shall pay to Owner, on the first day of each month during such Escalation
Year, a sum equal to one-
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twelfth (1/12) of the increase in the Fixed Rent shown upon such Owner's Labor
Rate Statement for such Escalation Year (before any apportionment pursuant to
the provisions of subsection B of this Section). If any such Owner's Labor Rate
Statement shall be rendered after the commencement of any Escalation Year,
Tenant shall pay to Owner on the first day of the calendar month next following
the rendition of such Owner's Labor Rate Statement (in addition to the payment
required by the immediately preceding sentence) a sum equal to one-twelfth
(1/12) of the increase in the Fixed Rent for such Escalation Year shown on such
statement (before any apportionment pursuant to the provisions of subsection B
of this Section) multiplied by the number of months which may have elapsed
between January 1st of such Escalation Year and the month in which such payment
is required to be made.
Section 22.06. All sums payable by Tenant to Owner pursuant to the
provisions of this Article 22 shall be collectible by Owner in the same manner
as Fixed Rent.
ARTICLE 23
NO WAIVER
Section 23.01. Neither any option granted to Tenant in this Lease or in
any collateral instrument to renew or extend the Demised Term, nor the exercise
of any such option by Tenant, shall prevent Owner from exercising any option or
right granted or reserved to Owner in this Lease or in any collateral instrument
or which Owner may have by virtue of any law, to terminate this Lease and the
Demised Term or any renewal or extension of the Demised Term either during the
original Demised Term or during the renewed or extended term. Any termination of
this Lease and the Demised Term shall serve to terminate any such renewal or
extension of the Demised Term and any right of Tenant to any such renewal or
extension, whether or not Tenant shall have exercised any such option to renew
or extend the Demised Term. Any such option or right on the part of Owner to
terminate this Lease shall continue during any extension or renewal of the
Demised Term. No option granted to Tenant to renew or extend the Demised Term
shall be deemed to give Tenant any further option to renew or extend.
Section 23.02. No act or thing done by Owner or Owner's agents during the
Demised Term shall constitute a valid acceptance of a surrender of the Demised
Premises or any remaining portion of the Demised Term except a written
instrument accepting such surrender, executed by Owner. No employee of Owner or
of Owner's agents shall have any authority to accept the keys of the Demised
Premises prior to the termination of this Lease and the Demised Term, and the
delivery of such keys to any such employee shall not operate as a termination of
this Lease or a surrender of the Demised Premises; however, if
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Tenant desires to have Owner sublet the Demised Premises for Tenant's account,
Owner or Owner's agents are authorized to receive said keys for such purposes
without releasing Tenant from any of its obligations under this Lease, and
Tenant hereby relieves Owner of any liability for loss of, or damage to, any of
Tenant's property or other effects in connection with such subletting unless
caused by the negligence of Owner, agents and employees of Owner, provided that
any liability of Owner shall be subject to the waiver of subrogation in favor of
Owner referred to in Section 9.04. The failure of Owner to seek redress for
breach or violation of, or to insist upon the strict performance of, any term,
covenant or condition of this Lease on Tenant's part to be observed or
performed, shall not prevent a subsequent act or omission which would have
originally constituted a breach or violation of any such term, covenant or
condition from having all the force and effect of an original breach or
violation. The receipt by Owner of rent with knowledge of the breach or
violation by Tenant of any term, covenant or condition of this Lease on Tenant's
part to be observed or performed shall not be deemed a waiver of such breach or
violation. Owner's failure to enforce any Building Rule against Tenant or
against any other tenant or occupant of the Building shall not be deemed a
waiver of any such Building Rule. No provision of this Lease shall be deemed to
have been waived by Owner unless such waiver shall be set forth in a written
instrument executed by Owner. No payment by Tenant or receipt by Owner of a
lesser amount than the aggregate of all Fixed Rent and additional rent then due
under this Lease shall be deemed to be other than on account of the first
accruing of all such items of Fixed Rent and additional rent then due, no
endorsement or statement on any check and no letter accompanying any check or
other rent payment in any such lesser amount and no acceptance of any such check
or other such payment by Owner shall constitute an accord and satisfaction, and
Owner may accept any such check or payment without prejudice to Owner's right to
recover the balance of such rent or to pursue any other legal remedy.
ARTICLE 24
MUTUAL WAIVER OF TRIAL BY JURY
Section 24.01. Owner and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by Owner or Tenant against the other on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of landlord and tenant, the use or occupancy of the Demised
Premises by Tenant or any person claiming through or under Tenant, any claim of
injury or damage, and any emergency or other statutory remedy; however, the
foregoing waiver shall not apply to any action for personal injury or property
damage. The provisions of the foregoing sentence shall survive the expiration or
any sooner termination of the Demised Term. If Owner commences any summary
proceeding for non-payment of rent, Tenant agrees not to
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interpose any counterclaim of whatever nature or description in any such
proceeding unless such counterclaim is of the nature of a so called "compulsory
counterclaim" which would be waived if not interposed in such proceeding.
ARTICLE 25
INABILITY TO PERFORM
Section 25.01. A If, by reason of strikes or other labor disputes, fire or
other casualty (or reasonable delays in adjustment of insurance), accidents,
orders or regulations of any Federal, State, County or Municipal authority, or
any other cause beyond Owner's reasonable control, whether or not such other
cause shall be similar in nature to those hereinbefore enumerated, Owner is
unable to furnish or is delayed in furnishing any utility or service required to
be furnished by Owner under the provisions of Article 28 or any other Article of
this Lease or any collateral instrument, or is unable to perform or make or is
delayed in performing or making any installations, decorations, repairs,
alterations, additions or improvements, whether or not required to be performed
or made under this Lease or under any collateral instrument, or is unable to
fulfill or is delayed in fulfilling any of Owner's other obligations under this
Lease or any collateral instrument, no such inability or delay shall constitute
an actual or constructive eviction, in whole or in part, or entitle Tenant to
any abatement or diminution of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Owner or its agents
by reason of inconvenience or annoyance to Tenant, or injury to or interruption
of Tenant's business, or otherwise.
Section 25.02. If by reason of strikes or other labor disputes, fire or
other casualty (or reasonable delays in adjustment of insurance) accidents,
orders or regulations of any Federal, State, County or Municipal authority, or
any other cause beyond Tenant's reasonable control, Tenant is unable to fulfill
any of Tenant's obligations under this Lease or any collateral instrument (with
the exception of any obligations on Tenant's part to pay any sum of money due
Owner, including, without limitation, the payment of Fixed Rent or increases
thereof, or any additional rent, which monetary obligation shall remain
unaffected by the provisions of this Section 25.02), Tenant shall not be
required to fulfill such non-monetary obligations during the period that Tenant
is so unable to fulfill them by reason of the above, provided however, that
Tenant shall employ reasonable diligence to attempt to eliminate the cause of
such inability referred to in this Section.
ARTICLE 26
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NOTICES
Section 26.01. Except as otherwise expressly provided in this Lease, any
bills, statements, notices, demands, requests or other communications given or
required to be given under this Lease shall be effective only if rendered or
given in writing, sent by registered or certified mail (return receipt requested
optional) or by a nationally recognized overnight courier service with
guaranteed and documented evidence of delivery, addressed (a) to Tenant (i) at
Tenant's address set forth in this Lease if mailed prior to Tenant's taking
possession of the Demised Premises, or (ii) at the Building if mailed subsequent
to Tenant's taking possession of the Demised Premises, or (iii) at any place
where Tenant or any agent or employee of Tenant may be found if mailed
subsequent to Tenant's vacating, deserting, abandoning or surrendering the
Demised Premises; if Owner shall give Tenant a notice of an Event of Default,
then Owner shall also give a photocopy of such notice, sent in the same manner
as such notice is sent to Tenant, to Xxxx Xxxxxx, Esq., Xxxxxxxx, Xxxxxx &
Xxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, or (b) to Owner
at Owner's address set forth in this Lease, with a copy to Owner c/o Director,
New York Merchandise Mart, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or (c)
addressed to such other address as either Owner or Tenant may designate as its
new address for such purpose by notice given to the other in accordance with the
provisions of this Section. Any such xxxx, statement, notice, demand, request or
other communication shall be deemed to have been rendered or given on the (x)
date which is two (2) days after it shall have been mailed as provided in this
Section or (y) on the date when it shall have been given to such overnight
courier service as provided in this Section.
ARTICLE 27
PARTNERSHIP TENANT
Section 27.01. If Tenant is a partnership (or is comprised of two (2) or
more persons, individually and as co-partners of a partnership) or if Tenant's
interest in this Lease shall be assigned to a partnership (or to two (2) or more
persons, individually and as copartners of a partnership) pursuant to Article 11
(any such partnership and such persons are referred to in this Section as
"Partnership Tenant"), the following provisions of this Section shall apply to
such Partnership Tenant: (i) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, and (ii) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any written instrument which may hereafter be executed, changing,
modifying or discharging this Lease, in whole or in part, or surrendering all or
any part of the Demised Premises to Owner, and by any notices, demands, requests
or other communications which may hereafter be given by Partnership
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Tenant or by any of the parties comprising Partnership Tenant, and (iii) any
bills, statements, notices, demands, requests or other communications given or
rendered to Partnership Tenant or to any of the parties comprising Partnership
Tenant shall be deemed given or rendered to Partnership Tenant and to all such
parties and shall be binding upon Partnership Tenant and all such parties, and
(iv) if Partnership Tenant shall admit new partners, all of such new partners
shall, by their admission to Partnership Tenant, be deemed to have assumed
performance of all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed, and (v) Partnership Tenant shall
give prompt notice to Owner of the admission of any such new partners, and, upon
demand of Owner, shall cause each such new partner to execute and deliver to
Owner an agreement, in form satisfactory to Owner, wherein each such new partner
shall assume performance of all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed (but neither Owner's failure
to request any such agreement nor the failure of any such new partner to execute
or deliver any such agreement to Owner shall vitiate the provisions of
subdivision (iv) of this Section).
ARTICLE 28
UTILITIES AND SERVICES
Section 28.01. As long as Tenant is not in default under any of the
material terms. covenants or conditions of this Lease on Tenant's part to be
observed or performed, Owner, at Owner's expense, shall furnish necessary
passenger elevator facilities on business days from 8:00 A.M. to 6:00 P.M. and
on Saturdays from 8:00 A.M. to 1:00 P.M. and shall have a passenger elevator
subject to call at all other times. Tenant shall be entitled to the
non-exclusive use of the freight elevator in common with other tenants and
occupants of the Building from 8:00 A.M. to 6:00 P.M. on business days subject
to such reasonable rules as Owner may adopt for the use of the freight elevator.
At any time or times all or any of the elevators in the Building may, at Owner's
option, be automatic elevators, and Owner shall not be required to furnish any
operator service for automatic elevators. If Owner shall, at any time. elect to
furnish operator service for any automatic elevators, Owner shall have the right
to discontinue furnishing such service with the same effect as if Owner had
never elected to furnish such service.
Section 28.02. As long as Tenant is not in default under any of the
material terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed. Owner, at Owner's expense, shall furnish and distribute
to the Demised Premises through the Building heating, ventilating and air
conditioning (referred to as "HVAC") system, when required for the comfortable
occupancy of the Demised Premises, heated, cooled and outside air, at reasonable
temperatures,
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pressures and degrees of humidity and in reasonable volumes and velocities, on a
year round basis from 8:00 A.M. to 6:00 P.M. on business days and from 8:00 A.M.
to 1:00 P.M. on Saturdays. Notwithstanding the foregoing provisions of this
Section, Owner shall not be responsible if the normal operation of the Building
HVAC system shall fail to provide conditioned air at reasonable temperatures,
pressures or degrees of humidity or in reasonable volumes or velocities in any
portions of the Demised Premises (a) which shall have an electrical load in
excess of four (4) xxxxx per square foot of usable area for all purposes
(including lighting and power), or which shall have a human occupancy factor in
excess of one person per 100 square feet of usable area (the average electrical
load and human occupancy factors for which the Building HVAC system is designed)
or (b) because of any rearrangement of partitioning or other Alterations made or
performed by or on behalf of Tenant or any person claiming through or under
Tenant. Whenever said HVAC system is in operation, Tenant agrees to cause all
the windows in the Demised Premises to be kept closed and to cause the venetian
blinds in the Demised Premises to be kept closed if necessary because of the
position of the sun. Tenant agrees to cause all the windows in the Demised
Premises to be closed whenever the Demised Premises are not occupied. Tenant
shall cooperate fully with Owner at all times and abide by all regulations and
requirements which Owner may reasonably prescribe for the proper functioning and
protection of the HVAC system. In addition to any and all other rights and
remedies which Owner may invoke for a violation or breach of any of the
foregoing provisions of this Section, Owner may discontinue furnishing services
under this Section during the period of such violation or breach, and such
discontinuance shall not constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Owner, or its agents, by reason of inconvenience or annoyance to Tenant, or
injury to or interruption of Tenant's business, or otherwise.
Section 28.03. A. As long as Tenant is not in default under any of the
material terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed, Owner, at Owner's expense, shall cause the exterior of
the windows of the Demised Premises and the public corridors (exclusive of show
windows or other glass) and the public toilet rooms on the floor of the Building
on which the Demised Premises are located to be cleaned at regular intervals in
accordance with standards and practices adopted by Owner for the Building.
Tenant acknowledges and is aware that the cleaning services required to be
furnished by Owner pursuant to this Section may be furnished by a contractor or
contractors employed by Owner and agrees that Owner shall not be deemed in
default of any of its obligations under this Subsection unless such default
shall continue for an unreasonable period of time after notice from Tenant to
Owner setting
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forth the specific nature of such default.
B. Tenant, at Tenant's expense, shall keep the Demised Premises in order,
shall cause the Demised Premises, including the interior of the windows of the
Demised Premises and both sides of any show windows and other glass, to be
cleaned at regular intervals in accordance with the standards and practices
adopted by Owner for the Building, shall cause Tenant's refuse and rubbish to be
removed from the Building, and shall cause the Demised Premises to be
exterminated against infestation by vermin, roaches or rodents regularly and, in
addition, whenever there shall be evidence of any infestation. The removal of
such refuse and rubbish and the furnishing of such cleaning and exterminating
services shall be performed in accordance with such regulations and requirements
as, in Owner's judgement, are necessary for the proper operation of the
Building, and Tenant agrees that Tenant will not permit any person to enter the
Demised Premises or the Building for such purposes other than persons first
approved by Owner.
Section 28.04. A. As long as Tenant is not in default under any of the
material terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed, Owner, at Owner's expense, shall redistribute or furnish
electrical energy to or for the use of Tenant in the Demised Premises for the
operation of the lighting fixtures and the electrical receptacles installed in
the Demised Premises on the Commencement Date. There shall be no specific charge
by way of measuring such electrical energy on any meter or otherwise, as the
charge for the service of redistributing or furnishing such electrical energy
has been included in the Fixed Rent on a so-called "rent inclusion" basis. The
parties agree that although the charge for the service of redistributing or
furnishing electrical energy is included in the Fixed Rent on a so-called "rent
inclusion" basis, the value to Tenant of such service may not be fully reflected
in the Fixed Rent. Accordingly, Tenant agrees that Owner may cause an
independent electrical engineer or electrical consulting firm, selected by
Owner, to make a determination, following the commencement of Tenant's normal
business activities in the Demised Premises, of the full value to Tenant of such
services supplied by Owner, to wit: the potential electrical energy supplied to
Tenant annually based upon the estimated capacity of the electrical feeders,
risers and wiring and other electrical facilities serving the Demised Premises.
Such engineer or consulting firm shall certify such determination in writing to
Owner and Tenant. If it shall be determined that the full value to Tenant of
such service is in excess of NINETEEN THOUSAND TWO HUNDRED FIFTY and 00/100
($19,250.00) Dollars per annum (such sum is referred to as the "Electrical
Inclusion Factor"), the parties shall enter into a written supplementary
agreement, in form satisfactory to Owner, modifying this Lease as of the
Commencement Date by increasing the Fixed Rent and the Electrical Inclusion
Factor for the entire Demised Term by an annual amount equal to such excess.
However, if it
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shall be so determined that the full value to Tenant of such service does not
exceed the Electrical Inclusion Factor, no such agreement shall be executed and
there shall be no increase or decrease in the Fixed Rent or the Electrical
Inclusion Factor by reason of such determination. If either the quantity or
character of electrical service is changed by the public utility corporation
supplying electrical service to the Building or is no longer available or
suitable for Tenant's requirements, no such change, unavailability or
unsuitability shall constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Owner, or its agents, by reason of inconvenience or annoyance to Tenant, or
injury to or interruption of Tenant's business, or otherwise. Without limiting
the provisions of the immediate prior sentence, Owner shall use reasonable
efforts not to cause an adverse change in the quality or character of such
electric service and Owner will not change the electrical service to Tenant to a
generally greater degree than the change to other tenants in the Building.
B. Owner represents that the electrical feeder or riser capacity serving
the Demised Premises on the Commencement Date shall be adequate to serve the
lighting fixtures and electrical receptacles installed in the Demised Premises
on the Commencement Date. To Owner's knowledge Tenant's use of the electrical
energy in the Demised Premises as of August 20, 1991, does not exceed the
electrical feeder or riser capacity then serving the Demised Premises. Subject
to the provisions of subsection C(1) of this Section 28.04, any additional
feeders or risers to supply Tenant's additional electrical requirements, and all
other equipment proper and necessary in connection with such feeders or risers,
shall be installed by Owner upon Tenant's request, at the sole cost and expense
of Tenant, provided that, in Owner's reasonable judgment, such additional
feeders or risers are necessary and are permissible under applicable laws
(including, but not limited to, the New York State Energy Conservation
Construction Code) and insurance regulations and the installation of such
feeders or risers will not cause permanent damage or injury to the Building or
the Demised Premises or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations or repairs or interfere with or
disturb other tenants or occupants of the Building. Tenant covenants that at no
time shall the use of electrical energy in the Demised Premises exceed the
capacity of the existing feeders or wiring installations then serving the
Demised Premises. Tenant shall not make or perform, or permit the making or
performance of, any Alterations to wiring installations or other electrical
facilities in or serving the Demised Premises or any additions to the business
machines, office equipment or other appliances in the Demised Premises which
utilize electrical energy without the prior consent of Owner in each instance.
Any such Alterations, additions or consent by
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Owner shall be subject to the provisions of subsection C(1) of this Section
28.04, as well as to the other provisions of this Lease including, but not
limited to, the provisions of Article 3.
C. (1) If, at any time or times prior to or during the Demised Term,
electrical feeders, risers, wiring or other electrical facilities serving the
Demised Premises shall be installed by Owner, at the request of Tenant, Tenant
or others, on behalf of Tenant or any person claiming through or under Tenant in
addition to the feeders, risers, wiring or other electrical facilities necessary
to serve the lighting fixtures and electrical receptacles installed in the
Demised Premises on the Commencement Date, the Fixed Rent and the Electrical
Inclusion Factor shall be increased in an annual amount which shall reflect the
value to Tenant of the additional service to be furnished by Owner, to wit: the
potential additional electrical energy made available to Tenant annually based
upon the estimated capacity of such additional electrical feeders, risers,
wiring or other electrical facilities. The amount of any such increase in the
Fixed Rent and the Electrical Inclusion Factor shall be finally determined by an
independent electrical engineer or consulting firm selected by Owner who shall
certify such determination in writing to Owner and Tenant. Following any such
determination, Owner and Tenant shall enter into a written supplementary
agreement, in form reasonably satisfactory to Owner, modifying this Lease by
increasing the Fixed Rent and the Electrical Inclusion Factor for the remainder
of the Demised Term in an annual amount equal to the value of such additional
service as so determined. Any such increase shall be effective as of the date of
the first availability to Tenant of such additional service and shall be
retroactive to such date if necessary.
(2) If, at any time or times after June 13, 1991, the rates at which
Owner purchases electrical energy from the public utility corporation supplying
electrical service to the Building or any charges incurred or taxes payable by
Owner in connection therewith shall be increased or decreased, the Fixed Rent
and the Electrical Inclusion Factor shall be increased or decreased, as the case
may be, upon demand of either party, in an annual amount which shall fairly and
proportionately reflect the estimated increase or decrease, as the case may be,
in the annual cost to Owner of purchasing electrical energy for the Building
provided that notwithstanding anything to the contrary contained in the
provisions of this Section 29.04 in no event shall (a) the Electrical Inclusion
Factor ever be decreased below the original amount thereof set forth in
Subsection A of this Section and (b) the Fixed Rent ever be decreased by more
than such decrease in the Electrical Inclusion Factor as so limited by the
provisions of subdivision (a) of this subdivision C(2). If, within ten (10) days
after any such demand, Owner and Tenant shall fail to agree upon the amount of
such increase or decrease, as the case may be, in the Fixed Rent and the
Electrical Inclusion Factor then, in lieu of such
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agreement, such estimated increase or decrease, as the case may be, shall be
finally determined by an independent electrical engineer or consulting firm
selected by Owner who shall certify such determination in writing to Owner and
Tenant. Following any such agreement or determination, Owner and Tenant shall
enter into a written supplementary agreement, in form satisfactory to Owner,
modifying this Lease by increasing, or decreasing, as the case may be, the Fixed
Rent and the Electrical Inclusion Factor for the remainder of the Demised Term
in an annual amount equal to such estimated increase or decrease as so agreed or
determined. Any such increase or decrease in the Fixed Rent and the Electrical
Inclusion Factor shall be effective as of the effective date f such increase or
decrease, and shall be retroactive to such date if necessary.
(3) Any increase in the Fixed Rent pursuant to the provisions of
subsection A of this Section or this subsection C with respect to the period
from the effective date of such increase to the last day of the month in which
such increase shall be fixed by agreement or determination shall be payable by
Tenant upon demand of Owner. Any decrease in the Fixed Rent pursuant to the
provisions of this subsection C with respect to the period from the effective
date of such decrease to the last day of the month in which such decrease shall
be fixed by agreement or determination shall be credited to Tenant against the
next monthly installment of the Fixed Rent. The monthly installments of the
Fixed Rent payable after the date upon which any such increase or decrease is so
fixed shall be proportionately adjusted to reflect such increase or decrease in
the Fixed Rent.
D. Owner may, at any time, elect to discontinue the redistribution or
furnishing of electrical energy to the Demised Premises provided that (a) Owner
shall simultaneously discontinue such redistribution or furnishings to
substantially all of the other tenants of the Building and (b) such
discontinuance cannot occur until Tenant shall be able to receive electrical
service directly from the public utility corporation supplying electrical
service to the Building. In the event of any such election by Owner, (i) Owner
agrees to give reasonable advance notice of any such discontinuance to Tenant,
(ii) Owner agrees to permit Tenant to receive electrical service directly from
the public utility corporation supplying electrical service to the Building and
to permit the existing feeders, risers, wiring and other electrical facilities
serving the Demised Premises to be used by Tenant for such purpose to the extent
they are suitable and safely capable, (iii) Owner agrees to pay such charges and
costs, if any, as such public utility corporation may impose in connection with
the installation of Tenant's meters, (iv) the Fixed Rent shall be decreased, as
of the date of such discontinuance, by an amount equal to the Electrical
Inclusion Factor to reflect such discontinuance; and (v) this Lease shall remain
in full force and
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effect and such discontinuance shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent except as expressly provided in subdivision (iv) of this subsection D,
or relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Owner or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise.
E. The following method of computation shall be employed by any electrical
engineer or electrical consulting firm selected by Owner pursuant to the
provisions of subsection C(2) of this Section 28.04 in finally determining any
estimated increase or decrease in the Fixed Rent and the Electrical Inclusion
Factor, under the provisions of this Section resulting from public utility
corporation (referred to as "The Corporation") electrical rate and fuel charge
changes and taxes (collectively "Electrical Changes") payable in connection
therewith:
(1) Owner's bills from The Corporation for the Building for the twelve
(12) month period immediately preceding the Electrical Change in question shall
be averaged for demand and consumption (Kw and Kwh) and the rate structure in
effect immediately prior to the Electrical Change in question shall be applied
to such average demand and consumption factors of Owner's xxxxxxxx for the
Building for said twelve (12) month period resulting in an agreed determination
of the cost to Owner of electricity for the Building immediately prior to the
Electrical Change in question; and
(2) The new rate structure pursuant to which Owner is billed by The
Corporation, i.e., the rate structure which includes the Electrical Change in
question, shall be applied to the average demand and consumption factors of
Owner's xxxxxxxx for the Building for said twelve (12) month period resulting in
an agreed estimate of the cost to Owner by reason of the Electrical Change in
question; and
(3) The difference in the costs determined pursuant to the foregoing
subdivisions (1) and (2) shall be deemed the amount of the estimated annual
change in cost and the amount of such estimated annual change in cost shall be
divided by the cost determined pursuant to the foregoing subdivision (1); and
(4) The resulting quotient shall be applied to Tenant's then current
Electrical Inclusion Factor to produce the increase or decrease in the Fixed
Rent and Electrical Inclusion Factor.
(For example: Assume (1) an Electrical Change i.e. a rate increase; (2) an
application of the rate schedule in effect immediately prior to such Electrical
Change to the averaged electrical demand and consumption factors shown on
Owner's electrical bills for the twelve (12) month period immediately preceding
such Electrical
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Change resulting in an estimated annual cost of $100,000.00; (3) an application
of the new rate schedule to the averaged electrical demand and consumption
factors shown on the bills in question resulting in an estimated annual cost of
$110,000.00; (4) deduction of the sum of $100,000.00 referred to in step (2)
from said sum of $110,000.00 referred to in step (3), resulting in a difference
of $10,000.00; and (5) that Tenant's Electrical Inclusion Factor was $3,000.00.
The $10,000.00 annual estimated increase for the Building, when divided by
$100,000.00, the estimated annual cost to Owner of electricity for the Building
prior to the Electrical Change in question, results in a quotient of 10% which,
when applied to Tenant's Electrical Inclusion Factor increases the Fixed Rent
and the Electrical Inclusion Factor by $300.00.)
Section 28.05. If Tenant requires, uses or consumes water for any purpose
in addition to ordinary lavatory and drinking purposes, Owner may install a hot
water meter and a cold water meter and thereby measure Tenant's consumption of
water for all purposes. Tenant shall pay to Owner the cost of any such meters
and their installation, and Tenant shall keep any such meters and any such
installation equipment in good working order and repair, at Tenant's cost and
expense. Tenant agrees to pay for water consumed as shown on said meters and
sewer charges thereon, as and when bills are rendered. In addition to any sums
required to be paid by Tenant for hot water consumed and sewer charges thereon
under the foregoing provisions of this Section, Tenant agrees to pay to Owner,
for the heating of said hot water, an amount equal to three (3X) times the total
of said sums required to be paid by Tenant for hot water and sewer charges
thereon. For the purposes of determining the amount of any sums required to be
paid by Tenant under this Section, all hot and cold water consumed during any
period when said meters are not in good working order shall be deemed to have
been consumed at the rate of consumption of such water during the most
comparable period when such meters were in good working order.
Section 28.06. Owner agrees that, in addition to the elevator and HVAC
services required to be provided by Owner to Tenant pursuant to the foregoing
provisions of this Article 29, Owner shall keep the Building open and shall
provide such services to Tenant, at Owner's expense, on Saturdays and Sundays
from 8:00 A.M. to 6:00 P.M. during "market weeks", as such weeks are determined
by the Tenant's Association proposed to be formed pursuant to the provisions of
Article 34, such market weeks not to exceed, however, six (6) weeks in any
calendar year.
Section 28.07. Tenant agrees to pay Owner for any additional elevator or
HVAC services required by Tenant, at Building standard rates or, of there are no
such rates, at reasonable rates. Owner shall not be required to furnish any such
additional services unless Owner has received reasonable advance notice from
Tenant requesting such
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services.
Section 28.08. Owner reserves the right to stop the service of the HVAC,
elevator, plumbing, electrical or other mechanical systems or facilities in the
Building when necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements, which, in the judgment of Owner are
desirable or necessary, until said repairs, alterations, replacements or
improvements shall have been completed. The exercise of such right by Owner
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise. Supplementing the provisions of
this Section 28.08, Owner agrees to use reasonable efforts to restore any
interrupted services, without any obligation, however, to employ labor at
overtime or other premium pay rates. If practicable, Owner shall attempt to
advise Tenant as to the estimated length of time of any such interruption of
services.
Section 28.09. A. Supplementing the provisions of Section 28.05, in the
event (a) a separate air conditioning system to serve the Demised Premises is
installed by or on behalf of Tenant in accordance with the provisions of this
Lease (referred to herein as "Tenant's Supplemental A/C Unit"), (b) Tenant
requests that such Unit be hooked up to any Building cooling tower and
associated piping (referred to herein as the "Cooling Tower") and (c) Owner
consents to such hookup, then, in those events, Owner agrees, subject to the
provisions of Article 25 and Section 28.08, to supply condenser water to
Tenant's Supplemental A/C Unit and Tenant agrees that (i) Tenant shall pay to
Owner, upon demand, all costs and expenses incurred by Landlord in connection
with the hook up of such Unit to the Cooling Tower, including, but not limited
to, the Building standard hook up fee then charged by Owner, and (ii) from and
after the date the hook up is completed, the Fixed Rent reserved in this Lease
shall be increased by a sum (referred to herein as the "Tenant's Cooling Tower
Use Charge") equal to (x) the standard per ton charge then in effect in the
Building, multiplied by (xx) the number of tons of Tenant's Supplemental A/C
Unit.
B. If the regular hourly wage rate of operating engineers employed in the
Building shall be increased in any Escalation Year (as defined in Article 22)
over the rate in effect on the January 1st immediately preceding such hook up,
the Fixed Rent for such Escalation Year shall be increased by a sum equal to
that proportion of Tenant's Cooling Tower Use Charge which such increase in said
hourly wage rate bears to the hourly wage rate in effect on the January 1st
immediately preceding such hook up. The increase in Fixed Rent for any
Escalation Year pursuant to the provisions of the immediately preceding sentence
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shall be shown on the Owner's Statement with respect to such Escalation Year
rendered by Owner pursuant to the provisions of said Article 22, and shall be
payable by Tenant as if it were an increase in the Fixed Rent pursuant to the
provisions of said Article 22.
C. Any increase in Fixed Rent for Tenant's Cooling Tower Use Charge shall
be effective as of the date Tenant's Supplemental A/C Unit is hooked up to the
Cooling Tower and shall be retroactive to such date if necessary.
D. Owner and Tenant acknowledge and agree that an existing one an one-half
(1 1/2) ton Tenant's Supplemental A/C Unit is currently installed in the Demised
Premises (the "Existing A/C Unit") and the respective obligations of Owner and
Tenant with respect thereto are governed by the provisions of an Agreement
between Owner and Tenant's predecessor-in-interest, Fabriyaz Incorporated, dated
as of August 28, 1984. From and after the Commencement Date such Existing A/C
Unit shall be deemed a Tenant's Supplemental A/C Unit for the purposes of this
Section 28.09, and accordingly, as of the Commencement Date (i) the Fixed Rent
shall be increased by Tenant's Cooling Tower Use Charge in accordance with the
provisions of this Section 28.09 and (ii) the respective obligations of Owner
and Tenant with respect to such Existing A/C Unit shall be governed by the
provisions of this Lease, including, without limitation the provisions of this
Article 28. Owner and Tenant agree that Tenant shall have no obligation to pay
the "Building standard hook-up fee" referred to in subdivision (i) of Subsection
A of this Section 28.09 in connection with the Existing A/C Unit.
ARTICLE 29
CAPTIONS
Section 29.01. The captions preceding the Articles of this Lease have been
inserted solely as a matter of convenience and such captions in no way define or
limit the scope or intent of any provision of this Lease.
ARTICLE 30
MISCELLANEOUS DEFINITIONS AND SEVERABILITY PROVISIONS
Section 30.01. The term "business days" as used in this Lease shall
exclude Saturdays, Sundays and holidays, the term "Saturdays" as used in this
Lease shall exclude holidays and the term "holidays" as used in this Lease shall
mean all days observed as legal holidays by either the New York State Government
or the Federal Government.
Section 30.02. The terms "person" and "persons" as used in this
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Lease shall be deemed to include natural persons, firms, corporations,
associations and any other private or public entities, whether any of the
foregoing are acting on their own behalf or in a representative capacity.
Section 30.03. If any term, covenant or condition of this Lease or any
application thereof shall be invalid or unenforceable, the remainder of this
Lease and any other application of such term, covenant or condition shall not be
affected thereby.
ARTICLE 31
ADJACENT EXCAVATION
Section 31.01. If an excavation shall be made upon land adjacent to the
Real Property, 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 walls and other portions of the Building from injury
or damage and to support the same by proper foundations and no such entry shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Owner or said person.
ARTICLE 32
BUILDING RULES
Section 32.01. Tenant shall observe faithfully, and comply strictly with,
and shall not permit the violation of, the Building Rules set forth in Schedule
B annexed to and made a part of this Lease and such additional reasonable
Building Rules as Owner may, from time to time, adopt. All of the terms,
covenants and conditions of Schedule B are incorporated in this Lease by
reference and shall be deemed part of this Lease as though fully set forth in
the body of this Lease. The term "Building Rules" as used in this Lease shall
include those set forth in Schedule B and those hereafter made or adopted as
provided in this Section. In case Tenant disputes the reasonableness of any
additional Building Rule hereafter adopted by Owner, the parties hereto agree to
submit the question of the reasonableness of such Building Rule for decision to
the Chairman of the Board of Directors of the Management Division of the Real
Estate Board of New York, Inc., or its successor, or to such impartial person or
persons as he may designate, whose determination shall be final and conclusive
upon Owner and Tenant. Tenant's right to dispute the reasonableness of any
additional Building Rule shall be deemed waived unless asserted by service of a
notice upon Owner within ten (10) days after the date
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upon which Owner shall give notice to Tenant of the adoption of any such
additional Building Rule. Owner shall have no duty or obligation to enforce any
Building Rule, or any term, covenant or condition of any other lease, against
any other tenant or occupant of the Building, and Owner's failure or refusal to
enforce any Building Rule or any term, covenant or condition of any other lease
against any other tenant or occupant of the Building shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Owner or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise. Supplementing the provisions of this Section 32.01,
Owner agrees that Owner shall not enforce any Building Rules and Regulations
against Tenant and Tenant's servants, employees, agents, visitors and licensees
that Owner does not enforce generally against substantially all of the other
tenants (and said other tenants' servants, employees, agents, visitors and
licensees) in the Building.
ARTICLE 33
HOME FURNISHINGS--GIFTWARE INDUSTRY
Section 33.01 Owner agrees: A. To install and maintain a reception desk, a
lounge and checking facilities in the Building for buyers visiting the Building;
B. To require the installation and maintenance of generally uniform
partitions in the public corridors of all floors which are leased to home
furnishings and giftware tenants (referred to as "Industry Tenants"); and
C. To issue initially and revise periodically a directory listing the
various Industry Tenants in the Building; the principal products sold by each
Industry Tenant and the location of each Industry Tenant in the Building; and
D. To place advertising on a regular and periodic basis in publications of
the Home Furnishings--Giftware Industry intended to promote and maintain the
image of the Building.
Section 33.02 Tenant agrees to join the Tenant's Association, if any, and
maintain its membership in such Association throughout the Demised Term.
Section 33.03 Owner agrees that if provisions the same or substantially
the same as those contained in Section 33.02 are not contained in all leases
with Industry Tenants, Tenant shall not be required to comply with the
provisions of Section 33.02.
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ARTICLE 34
BROKER
Section 34.01. Tenant represents and warrants to Owner that no broker was
responsible for bringing about this Lease. Tenant shall indemnify Owner from all
loss, cost, liability, damage and expenses, including, but not limited to,
reasonable counsel fees and disbursements, arising from any breach of the
foregoing representation and warranty. Owner shall pay any broker any brokerage
commission or fee due said broker pursuant to a separate agreement with Owner if
said broker (i) dealt with Owner in connection with the bringing about of this
Lease or (ii) is entitled to such a brokerage commission or fee by reason of the
fact that this Lease is deemed a renewal of the "Existing Lease" (defined in
Section 37.01), provided that the aforesaid shall not limit Tenant's
representation, warranty, or obligations under the preceding sentence of this
Section 34.01., except to the extent that Tenant may have dealt with Xxxxxx
Xxxxxxx Xxxxx, Inc., in connection with the Existing Lease.
ARTICLE 35
SECURITY
Section 35.01. As security for the faithful performance and observance by
Tenant of the terms, covenants and conditions of "Tenant's Existing Lease"
(defined in Article 38) on Tenant's part to be observed and performed Owner
currently holds the sum of TWENTY FIVE THOUSAND SEVEN HUNDRED FIFTY SIX and
00/100 ($25,756.00) DOLLARS, together with interest thereon, if any, (referred
to herein as the "Existing Security"). Owner and Tenant agree that the amount
then constituting the Existing Security on the Commencement Date, if any, shall
be held by Owner as the security (sometimes referred to herein as the
"Security") under this Lease in accordance with the following provisions of
Article 36 hereof for the faithful performance and observance by Tenant of the
terms, conditions and covenants of this Lease on Tenant's part to be performed
and observed. In the event of any default by Tenant in the observance or
performance of any of the terms, covenants or conditions of this Lease on the
part of Tenant to be observed or performed including, but not limited to, any
default in the payment when due of any monthly installment of the Fixed Rent or
of any additional rent after applicable grace periods. Owner may use or apply
all or any part of the Security for the payment to Owner for Tenant's account of
any sum or sums due under this Lease, without thereby waiving any other rights
or remedies of Owner with respect to such default. Tenant agrees to replenish
all or any part of the Security so used or applied during the Demised Term.
After (i) the Expiration Date or any other date upon which the Demised Term
shall expire and come to an end, and (ii) the full observance and
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performance by Tenant of all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed. including, but not limited
to, the provisions of Article 20, Owner shall return to Tenant the balance of
the Security then held or retained by Owner. In addition, if during the period
from the Commencement Date to and including the first (1st) anniversary of the
Commencement Date Owner shall not have given Tenant notice of an Event of
Default with respect to any of Tenant's material obligations under this Lease,
then, upon the request of Tenant Owner shall promptly return to Tenant the
Security and all interest earned thereon, if any. However, if Owner shall have
given such a notice of an Event of Default with respect to any of Tenant's
material obligations under this Lease, then Owner shall have no obligation to
return the Security to Tenant under this provision and such Security shall
thereafter be held by Owner in accordance with the provisions of this Article
35. Owners agrees that, unless prohibited by law or by the general policies of
lending institutions in New York City, Owner shall deposit the Security in an
interest-bearing savings account with a bank selected by Owner, in which event
all interest accruing thereon shall be added to and become part of the Security
and shall be retained by Owner under the same conditions as the sum originally
deposited as Security. Tenant agrees that Tenant shall not assign or encumber
any part of the Security, and no assignment or encumbrance by Tenant of all or
any part of the Security shall be binding upon Owner, whether made prior to,
during, or after the Demised Term. Owner shall not be required to exhaust its
remedies against Tenant or against the Security before having recourse to any
other form of security held by Owner and recourse by Owner to any form of
security shall not affect any remedies of Owner which are provided in this Lease
or which are available to Owner in law or equity. In the event of any sale,
assignment or transfer by Owner named herein (or by any subsequent Owner) of its
interest in the Building as owner or lessee. Owner (or such subsequent owner)
shall have the right to assign or transfer the Security to its grantee, assignee
or transferee and, in the event of such assignment or transfer. Owner named
herein. (or such subsequent Owner) shall have no liability to Tenant for the
return of the Security and Tenant shall look solely to the grantee, assignee or
transferee for such return. A lease of the entire Building shall be deemed a
transfer within the meaning of the foregoing sentence. Owner shall be entitled
to retain the one (1%) per cent administrative fee permitted by law to be
retained by landlords with respect to security deposits.
ARTICLE 36
PARTIES BOUND
Section 36.01. The terms, covenants and conditions contained in this Lease
shall bind and inure to the benefit of Owner and Tenant
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and, except as otherwise provided in this Lease, their respective heirs,
distributees, executors, administrators, successors and assigns. However, the
obligations of Owner under this Lease shall no longer be binding upon Owner
named herein after the sale, assignment or transfer by Owner named herein (or
upon any subsequent Owner after the sale, assignment or transfer by such
subsequent Owner) of its interest in the Building as owner or lessee, and in the
event of any such sale, assignment or transfer, such obligations shall
thereafter be binding upon the grantee, assignee or other transferee of such
interest, and any such grantee, assignee or transferee, by accepting such
interest, shall be deemed to have assumed such obligations. A lease of the
entire Building shall be deemed a transfer within the meaning of the foregoing
sentence. Tenant shall look solely to the estate and interest of Owner, its
successors and assigns, in the Real Property and Building or the proceeds of any
fire or casualty insurance or condemnation award payable to Owner in connection
with the Real Property or Building for the collection of any judgment recovered
against Owner based upon the breach by Owner of any of the terms, conditions or
covenants of this Lease on the part of Owner to be performed, and no other
property or assets of Owner shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to either this Lease, the relationship of landlord and tenant hereunder,
or Tenant's use and occupancy of the Demised Premises. This Lease may be
executed in one (1) or more counterparts all of which shall be deemed an
original and all of which shall constitute one and the same lease.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed
this Lease as of the day and year first above written.
41 MADISON COMPANY
By /s/ Signature Illegible
-----------------------
a partner
Owner
WITNESS:
/s/ Signature Illegible
-----------------------
XXX XXXX DESIGNS, LTD.
By /s/ Xxx Xxxx
---------------------
Tenant
(CORPORATE SEAL)
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WITNESS:
ATTEST:
................................
(CORPORATE SEAL)
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CORPORATE TENANT ACKNOWLEDGMENT
STATE OF NEW YORK
SS.:
COUNTY OF NEW YORK
On this 29 day of OCTOBER, 1991, before me personally came XXX XXXX
to me known, who being by me duly sworn, did depose and say that he resides in
000 XXXXXXXXXX XXXX, Xxxx xx XXXXXX, Xxxxx of CT., that he is the PRESIDENT of
XXX XXXX DESIGNS, LTD., the corporation described in and which executed the
foregoing Lease, as Tenant; and that he signed his name thereto by authority of
the Board of Directors of said corporation.
/s/ Xxxxxxx X. Xxxx
-------------------
Notary Public
Xxxxxxx X. Xxxx
Notary Public State of New York
No. 00-0000000
Qualified in Richmond County
Commission Expires June 15, 1993
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SCHEDULE A
Article 37 Tenant's Existing Lease and
Existing Conditions
Section 37.01. The Demised Premises are presently affected by a
lease dated November 16, 1979 between Owner and Tenant's
predecessor-in-interest, Fabriyaz Incorporated (said lease, as modified by
various written agreements, including without limitation, agreements dated June
8, 1981, February 1, 1983, February 29, 1984, March 1, 1984 and August 28, 1984,
is referred to as "Tenant's Existing Lease"), for a term which shall expire on
November 30, 1992, unless sooner terminated pursuant to any of the terms,
covenants or conditions of said lease or pursuant to law. Nothing contained in
this Lease shall be deemed a waiver by Owner or Tenant of any rights or remedies
relating to Tenant's Existing Lease. Any default under Tenant's Existing Lease
shall be deemed an Event of Default under this Lease with the effect that the
termination of Tenant's Existing Lease pursuant to the provisions of Article 16
thereof (entitled "Default") or Article 17 thereof (entitled "Remedies") shall
automatically terminate this Lease, but Tenant shall remain liable for damages
as provided in Article 18 hereof with the same force and effect as if this Lease
had been terminated in accordance with the provisions of Articles 16 or 17
hereof. No provision of Tenant's Existing Lease shall be deemed carried over
into or made a part of this Lease except as expressly set forth in this Lease.
Occupancy of the Demised Premises or any part thereof by Tenant or any person
claiming through or under Tenant prior to the Commencement Date shall be deemed
to be occupancy under Tenant's Existing Lease and shall be subject to all of the
terms, covenants and conditions thereof; occupancy thereof by Tenant or any such
person on or after the Commencement Date shall be deemed to be occupancy under
this Lease and shall be subject to all of the terms, covenants and conditions
hereof. Continuing occupancy of all or any part of the Demised Premises by
Tenant or any person claiming through or under Tenant after the expiration of
the term of Tenant's Existing Lease shall be deemed to constitute delivery of
possession of the Demised Premises to Tenant on the Commencement Date under this
Lease. Any unpaid Fixed Rent, increases thereof, additional rent or other
charges due under Tenant's existing Lease shall at the option of Owner be deemed
additional rent under this Lease, payable in the same manner as Fixed Rent.
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Section 37.02. Tenant acknowledges that Owner has made no
representations to Tenant with respect to the condition of the Demised Premises
and Tenant, presently in possession of the Demised Premises, agrees to accept
possession of the Demised Premises in the condition which shall exist on the
Commencement Date "as is" without recourse to Owner provided and further agrees
that, subject to the provisions of Articles 38 and 39, Owner shall have no
obligation to perform any work or make any installations in order to prepare the
Demised Premises for Tenant's occupancy, except as provided in Section 37.03.
However, nothing contained in this Section 37.02 shall limit Owner's obligations
under Articles 38 and 39 hereof.
Section 37.03. A. Upon the request of Tenant made within the Demised
Term, Owner shall, at Owner's expense, paint the painted surfaces in the entire
Demised Premises, with a single coat of paint in flat finish, in colors selected
by Tenant from Building standard colors, but not more than one color in any room
or area.
B. Said work shall be equal to standards adopted by Owner for
the Building and shall constitute a single non-recurring obligation on the part
of Owner. In the event this Lease is renewed or extended for a further term by
agreement or operation of law, Owner's obligation to perform such work shall not
apply to such renewal or extension.
C. At any time after the Commencement Date, Owner may enter
the Demised Premises to perform said work, and entry by Owner, its agents,
servants, employees or contractors for such purpose shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Owner, or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business or otherwise. Owner agrees to employ reasonable diligence to avoid such
inconvenience or annoyance to Tenant in the performance of such work without any
obligation, however, to employ labor at overtime or other premium pay rates.
Tenant shall use all reasonable efforts to cooperate with Owner to facilitate
the performance of such work. Accordingly, Owner and Tenant shall each cooperate
with the other to formulate a schedule for such work at times mutually agreeable
to the other.
Article 38
Addendum to Article 5
---------------------
Section 38.01. Supplementing the provisions of Section 5.01,
Owner, at Owner's sole cost and expense, shall make the following
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repairs:
(i) all structural repairs to the Demised Premises as and when
required; and
(ii) all repairs necessary to furnish the plumbing, electrical, air
conditioning, ventilating, heating and elevator services required to be
furnished by Owner to Tenant under the provisions of Article 28; and
(iii) all repairs or replacements necessary to be made to the Class
E Fire Alarm and Communications system installed in the Demised Premises
(provided, however, that if such repairs or replacements are occasioned by the
acts, omissions or negligence of Tenant, including any Alterations, then, such
repairs or replacements shall be made at the sole cost and expense of Tenant);
and
(iv) all repairs and replacements necessary to be made to the
Building electrical panels servicing the equipment installed in the Demised
Premises as a result of New York City Local Law #16 (provided, however, that if
such repairs or replacements are occasioned by the acts, omissions or negligence
of Tenant, including any Alterations, then, such repairs or replacements shall
be made at the sole cost and expense of Tenant); and
(v) all repairs or replacements necessary to be made to any
sprinkler system which Owner is obligated to install pursuant to the provisions
of this Lease (provided, however, that if such repairs or replacements are
occasioned by the acts, omissions or negligence of Tenant, including any
Alterations, or if such sprinkler system is installed by or on behalf of Tenant
then, such repairs or replacements shall be made at the sole cost and expense of
Tenant); and
(vi) all necessary repairs to the public portions of the Building
which affect Tenant's use and enjoyment of the Demised Premises.
Notwithstanding the forgoing provisions of this Section 38.01, Owner shall not
be required to make any of the repairs referred to in subdivisions (i), (ii),
(iii), (iv), (v) or (vi) above if Tenant is obligated to make such repairs
pursuant to the provisions of Section 5.01, and Owner shall have no obligation
to make any repairs unless and until specific notice of the necessity therefor
shall have been given by Tenant to Owner.
Article 39
Addendum to Articles 3 and 6
----------------------------
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Section 39.01. A. In the event that, at any time during the Demised
Term, in connection with any Alterations proposed to be performed by Tenant in
the Demised Premises (1) Tenant is unable to obtain, without the removal or
encapsulation of any asbestos in the Demised Premises as of the date of this
Lease, a New York City Department of Environmental Protection Form ACP5 dated
10/88 (or any successor form), signed by a certified asbestos investigator, or
any other form or approval required by Federal, State, County or Municipal
authorities, indicating that said Alterations do not constitute an asbestos
project, or (2) Tenant is unable to proceed with such Alterations unless and
until there is compliance with a Legal Requirement as a result of the presence
of any asbestos or other hazardous material in the Demised Premises as of the
date of this Lease which was not installed by Tenant, or any person claiming
through or under Tenant, then, Owner agrees, upon notice from Tenant to such
effect, to perform such work as shall be required to enable Tenant to obtain any
such form or approval.
B. If any laws, orders, rules or regulations of any Federal,
State, County or Municipal authority require that any asbestos or other
hazardous material contained in or about the Demised Premises be removed or
dealt with in any particular manner, then it shall be Owner's obligation, at
Owner's expense, to remove or so deal with such asbestos or other hazardous
material in accordance with such laws, orders, rules and regulations. Any work
which Owner is obligated to perform pursuant to the provisions of either
subsections A or B of this Section 39.01. is sometimes referred to herein as
"Owner's Article 39 Work". Any such Owner's Article 39 Work shall be performed
by Owner at Owner's sole cost and expense (x) with reasonable promptness after
such notice from Tenant and (y) in accordance with the provisions of Section
12.05.A.
C. Notwithstanding the provisions of subsections A and B of
this Section, in the event that (a) any Owner's Article 39 Work performed by
Owner pursuant to the provisions of either or both of such subsections is in any
way disturbed or damaged by Tenant or any person claiming through or under
Tenant thereby causing what would be additional Owner's Article 39 Work, or (b)
any asbestos or other hazardous material is installed in the Demised Premises by
or on behalf of Tenant, or any person claiming through or under Tenant, Owner
shall have no responsibility or obligation in connection with what would have
been such additional Owner's Article 39 Work or such installed asbestos or
hazardous material and no obligation to perform any Owner's Article 39 Work with
respect thereto, but it shall be Tenant's obligation, at Tenant's expense, to
(i) perform such work as shall then be required to enable Tenant to obtain any
form or approval referred to in subsection A, and (ii) remove or so deal with
such asbestos or other hazardous material in accordance with all such laws,
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orders, rules and regulations referred to in subsection B. Any work required to
be performed by Tenant pursuant to the provisions of the foregoing sentence is
referred to as the "Compliance Work". In the event Tenant is required to perform
any Compliance Work then, notwithstanding anything to the contrary contained in
this subsection C, Owner, at Owner's election, shall have the option to itself
perform any Compliance Work and, in such event, Tenant shall pay to Owner all of
Owner's costs in connection therewith within ten (10) days next following the
rendition of a statement thereof by Owner to Tenant.
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SCHEDULE B
BUILDING RULES
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from the
premises demised to any tenant or occupant. Any tenant whose premises are
situate on the ground floor of the Building shall, at said tenant's own expense,
keep the sidewalks and curb directly in front of said premises clean and free
from ice and snow.
2. No awnings or other projections shall be attached to the outside walls
or windows of the Building without the prior consent of Owner. No curtains,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any exterior window or door of the premises demised to any
tenant or occupant, without the prior consent of Owner. Such awnings,
projections, curtains, blinds, shades, screens or other fixtures must be of a
quality, type, design and color, and attached in a manner, approved by Owner.
3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or inside of
the premises demised to any tenant or occupant or of the Building without the
prior consent of Owner. Interior signs on doors and directory tablets, if any,
shall be of a size, color and style approved by Owner.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls. passageways or other public places in the
Building shall not be covered or obstructed, nor shall any bottles. parcels, or
other articles be placed on any window xxxxx.
5. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors,
vestibules or other public parts of the Building.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. No tenant
shall bring or keep, or permit to be brought or kept, any inflammable,
combustible or explosive fluid, material, chemical or substance in or about the
premises demised to such tenant.
7. No tenant or occupant shall xxxx, paint, drill into, or in any way
deface any part of the Building or the premises demised to
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such tenant or occupant. No boring, cutting or stringing of wires shall be
permitted, except with the prior consent of Owner, and as Owner may direct. No
tenant or occupant shall install any resilient tile or similar floor covering in
the premises demised to such tenant or occupant except in a manner approved by
Owner.
8. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the premises demised to any tenant. No cooking shall be done or
permitted in the Building by any tenant without the approval of Owner. No tenant
shall cause or permit any unusual or objectionable odors to emanate from the
premises demised to such tenant.
9. Without the prior consent of Owner, no tenant shall use or occupy, or
permit any portion of the premises demised to such tenant to be used or occupied
for, the storage of merchandise (except for the storage of sample products to be
displayed in such tenant's showroom or storage which is merely incidental to
Tenant's permitted use of the Demised Premises in accordance with the provisions
of Article 2 hereof), or for the sale of merchandise, goods or property of any
kind at auction.
10. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
or neighboring buildings or premises whether by the use of any musical
instrument, radio, television set or other audio device, unmusical noise,
whistling, singing, or in any other way. Nothing shall be thrown out of any
doors or windows.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows, nor shall any changes be made in locks or the mechanism
thereof. Each tenant must, upon the termination of its tenancy, restore to Owner
all keys of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such tenant.
12. All removals from the Building, or the carrying in or out of the
Building or the premises demised to any tenant, of any safes, freight, furniture
or bulky matter of any description must take place at such time and in such
manner as Owner or its agents may reasonably determine, from time to time. Owner
reserves the right to inspect all freight to be brought into the Building and to
exclude from the Building all freight which violates any of the Building Rules
or the provisions of such tenant's lease.
13. No tenant shall use or occupy, or permit any portion of the premises
demised to such tenant to be used or occupied, as an office for a public
stenographer or typist, or as a xxxxxx or manicure shop, or as an employment
bureau. No tenant or occupant shall engage or pay
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any employees in the Building, except those actually working for such tenant or
occupant in the Building, nor advertise for laborers giving an address at the
Building.
14. No tenant or occupant shall purchase, lighting maintenance, cleaning,
towels, or other like service, from any company or persons not approved by
Owner.
15. Owner shall have the right to prohibit any advertising which mentions
the address or location of the Building by any tenant or occupant which, in
Owner's reasonable opinion, tends to impair the reputation of the Building or
its desirability as a building for offices, and upon notice from Owner, such
tenant or occupant shall refrain from or discontinue such advertising.
16. Owner reserves the right to exclude from the Building, between the
hours of 6 P.M. and 8 A.M. on business days and at all hours on Saturdays,
Sundays and holidays, all persons who do not present a pass to the Building
signed by Owner. Owner will furnish passes to persons for whom any tenant
requests such passes. Each tenant shall be responsible for all persons for whom
it requests such passes and shall be liable to Owner for all acts of such
persons.
17. Each tenant, before closing and leaving the premises demised to such
tenant at any time, shall see that all entrance doors are locked and all windows
closed.
18. Each tenant shall, at its expense, provide artificial light in the
premises demised to such tenant for Owner's agents, contractors and employees
while performing janitorial or other cleaning services and making repairs or
alterations in said premises.
19. No premises shall be used, or permitted to be used, for lodging or
sleeping or for any immoral or illegal purpose.
20. The requirements of tenants will be attended to only upon application
at the office of Owner. Building employees shall not be required to perform, and
shall not be requested by any tenant or occupant to perform, any work outside of
their regular duties, unless under specific instructions from the office of
Owner.
21. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate in seeking their prevention.
22. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt of
merchandise, freight or other matter, any hand trucks or other means of
conveyance except those equipped with rubber tires,
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rubber side guards and such other safeguards as Owner may require.
23. If the premises demised to any tenant become infested with vermin,
such tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Owner, and shall employ
such exterminators therefor as shall be approved by Owner.
24. No premises shall be used, or permitted to be used, at any time,
without the prior approval of Owner, for the sale, at retail, whether directly,
by mail order or otherwise, of goods, wares or merchandise of any kind, or as a
restaurant, shop, booth, bootblack or other stand, or for the conduct of any
business or occupation which predominantly involves direct patronage of the
general public in the premises demised to such tenant, or for manufacturing or
for other similar purposes.
25. No tenant shall clean, or permit to be cleaned, any window of the
Building from the outside in violation of Section 202 of the New York Labor Law
or any successor law or statute, or of the rules of the Board of Standards and
Appeals or of any other board or body having or asserting jurisdiction.
26. No tenant shall move, or permit to be moved, into or out of the
Building or the premises demised to such tenant, any heavy or bulky matter,
without the specific approval of Owner. If any such matter requires special
handling, only a person holding a Master Rigger's license shall be employed to
perform such special handling. No tenant shall place, or permit to be placed, on
any part of the floor of floors of the premises demised to such tenant, a load
exceeding the floor load per square foot which such floor was designed to carry
and which is allowed by law. Owner reserves the right to prescribe the weight
and position of safes and other heavy matter, which must placed so as to
distribute the weight.
27. No borrowed lights (display windows) in the partitioning separating
the premises demised to any tenant from the Building's public corridors shall be
obstructed in any manner by any tenant.
[IMAGE OMITTED]
EXHIBIT 1 - This floor plan of a portion of the thirtieth (30th) floor, 00
Xxxxxxx Xxxxxx, X.X.X., is annexed to this Lease and made a part hereof solely
to delineate by outlining and diagonal markings, the Demised Premises. All
areas, dimensions, conditions and locations are approximate.
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