STANDARD FORM OF OFFICE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
AGREEMENT OF LEASE, made as of this 24th day of October in the year 2000,
between ▇▇▇▇▇▇ ▇. DAY REALTY CORP., as Agent for Owner (Ronbet ▇▇▇▇ ▇▇▇▇▇▇
LLC), a New York Corporation having its offices at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, party of the first part, hereinafter referred to as OWNER, and
BRAND MANUFACTURING CORP., a New York corporation with executive offices at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ party of the second part, hereinafter
referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
Suite 3110 in the building known as ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ in the Borough of
Manhattan, City of New York, for the term of 8 years, 2 months (or until such
term shall sooner cease and expire as hereinafter provided) to commence on the
15th day of November in the year two thousand, and to end on the 14th day of
January, in the year two thousand nine, and both dates inclusive, at an annual
rental rate of
(See attached Rent Schedule)
which Tenant agrees to pay in lawful money of the United States, which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any setoff or deduction whatsoever, except that Tenant shall
pay the first monthly installment(s) on the execution hereof (unless this lease
be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest. Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
RENT:
1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY:
2. Tenant shall use and occupy the demised premises for General & Executive
Offices.
Tenant Alterations:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent. Subject to the prior written consent of
Owner which will not be unreasonably withheld, and to the provisions of this
article, Tenant, at Tenant's expense, may make alterations, installations,
additions or improvements which are non-structural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises, by using contractors or mechanics first approved in each
instance by Owner, Tenant shall, before making any alterations, additions,
installations or improvements, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof, and shall deliver promptly
duplicates of all such permits, approvals and certificates to Owner, and Tenant
agrees to carry, and will cause Tenant's contractors and sub-contractors to
carry, such worker's compensation, general liability, personal and property
damage insurance as Owner may require. If any mechanic's lien is filed against
the demised premises, or the building of which the same forms a part, for work
claimed to have been done for, or materials furnished to, Tenant, whether or not
done pursuant to this article, the same shall be discharged by Tenant within
thirty days thereafter, at Tenant's expense, by payment or filing a bond as
permitted by law. All fixtures and all paneling, partitions, railings and like
installations, installed in the demised premises at any time, either by Tenant
or by Owner on Tenant's behalf, shall, upon installation, become the property of
Owner and shall remain upon and be surrendered with the demised premises unless
Owner, by notice to Tenant no later than twenty days prior to the date fixed as
the termination of this lease, elects to relinquish Owner's right thereto and to
have them removed by Tenant, in which event the same shall be removed from the
demised premises by Tenant prior to the expiration of the lease, at Tenant's
expense. Nothing in this article shall be construed to give Owner title to, or
to prevent Tenant's removal of, trade fixtures, movable office furniture and
equipment, but upon removal of same from the demised premises or upon removal,
of other installations as may be required by Owner, Tenant shall immediately,
and at its expense, repair and restore the demised premises to the condition
existing prior to any such installations, and repair any damage to the demised
premises or the building due to such removal. All property permitted or required
to be removed by Tenant at the end of the term remaining in the demised premises
after Tenant's removal shall be deemed abandoned and may, at the election of
Owner, either be retained as Owner's property or may be removed from the demised
premises by Owner, at Tenant's expense.
Maintenance and Repairs:
4. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by, or resulting from, carelessness,
omission, neglect or improper conduct of Tenant. Tenant's subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor, service
or equipment done for, or supplied to, Tenant or any subtenant, or arising out
of the installation, use or operation of the property or equipment of Tenant or
any subtenant. Tenant shall also repair all damage to the building and the
demised premises caused by the moving of Tenant's fixtures, furniture and
equipment. Tenant shall promptly make, at Tenant's expense, all repairs in and
to the demised premises for which Tenant is responsible, using only the
contractor for the trade or trades in question, selected from a list of at least
two contractors per trade submitted by Owner. Any other repairs in or to the
building or the facilities and systems thereof, for which Tenant is responsible,
shall be performed by Owner at the Tenant's expense. Owner shall maintain in
good working order and repair the exterior and the structural portions of the
building, including the structural portions of the demised premises, and the
public portions of the building interior and the building plumbing, electrical,
heating and ventilating systems (to the extent such systems presently exist)
serving the demised premises. Tenant agrees to give prompt notice of any
defective condition in the demised premises for which Owner may be responsible
hereunder. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or others making repairs, alterations,
additions or improvements in or to any portion of the building or the demised
premises, or in and to the fixtures, appurtenaces or equipment thereof. It is
specifically agreed that Tenant shall not be entitled to any setoff or reduction
of rent by reason of any failure of Owner to comply with the covenants of this
or any other article of this lease. Tenant agrees that Tenant's sole remedy at
law in such instance will be by way of an action for damages for breach of
contract. The provisions of this Article 4 shall not apply in the case of fire
or other casualty, which are dealt with in Article 9 hereof.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the Labor Law or any other applicable law, or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting
jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, Insurance
Services Office, or any similar body which shall impose any violation, order or
duty upon Owner or Tenant with respect to the demised premises, whether or not
arising out of Tenant's use or manner of use thereof, (including Tenant's
permitted use) or, with respect to the building if arising out of Tenant's use
or manner of use of the demised premises or the building (including the use
permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of us of the
demised premises or method of operation therein, violated any laws, ordinances,
orders, rules, regulations or requirements with respect thereto. Tenant may,
after securing Owner to Owner's satisfaction against all damages, interest,
penalties and expenses, including, but not limited to, reasonable attorneys'
fees, by cash deposit or by surety bond in an amount and in a company
satisfactory to Owner, contest and appeal any such laws, ordinances, orders,
rules, regulations or requirements provided same is done with all reasonable
promptness and provided such appeal shall not subject Owner to prosecution for a
criminal offense, or constitute a default under any lease or mortgage under
which Owner may be obligated, or cause the demised premises or any part thereof
to be condemned or vacated. Tenant
shall not do or permit any act or thing to be done in or to the demised premises
which is contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner with respect to the demised premises or the building of which
the demised premises form a part, or which shall or might subject Owner to any
liability or responsibility to any person, or for property damage. Tenant shall
not keep anything in the demised premises, except as now or hereafter permitted
by the Fire Department, Board of Fire Underwriters, Fire Insurance Rating
Organization or other authority having jurisdiction, and then only in such
manner and such quantity so as not to increase the rate for fire insurance
applicable to the building, nor use the demised premises in a manner which will
increase the insurance rate for the building or any property located therein
over that in effect prior to the commencement of Tenant's occupancy. Tenant
shall pay all costs, expenses, fines, penalties, or damages, which may be
imposed upon Owner by reason of Tenant's failure to comply with the provisions
of this article, and if by reason of such failure the fire insurance rate shall,
at the beginning of this lease, or at any time thereafter, be higher than it
otherwise would be, then, Tenant shall reimburse Owner, as additional rent
hereunder, for that portion of all fire insurance premiums thereafter paid by
Owner which shall have been charged because of such failure by Tenant. In any
action or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up" of rate for the building or the demised premises issued by the New
York Fire Insurance Exchange, or other body making fire insurance rates
applicable to said premises shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's judgement, to absorb and
prevent vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which the demised premises are a part, and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
Property Loss, Damage Reimbursement Indemnity:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, nor for loss of or damage
to any property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by, or due to, the negligence of Owner, its agents, servants or employees. Owner
or its agents will not be liable for any such damage caused by other tenants or
persons in, upon or about said building, or caused by operations in construction
of any private, public or quasi public work. If at any time any windows of the
demised premises are temporarily closed, darkened or bricked up (or permanently
closed, darkened or bricked up, if required by law) for any reason whatsoever
including, but not limited to, Owner's own acts, Owner shall not be liable for
any damage Tenant may sustain thereby, and Tenant shall not be entitled to any
compensation therefor, nor abatement or diminution of rent, nor shall the same
release Tenant from its obligations hereunder, nor constitute an eviction.
Tenant shall indemnify and save harmless Owner against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable attorneys' fees,
paid, suffered or incurred as a result of any breach by Tenant, Tenant's agents,
contractors, employees, invitees, or licensees, of any covenant or condition of
this lease, or the carelessness, negligence or improper conduct of the Tenant,
Tenant's agents, contractors, employees, invitees or licensees. Tenant's
liability under this lease extends to the acts and omissions of any subtenant,
and any agent, contractor, employee, invitee or licensee of any subtenant. In
case any action or proceeding is brought against Owner by reason of any such
claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resist
or defend such action or proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner, and this
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by, and at the
expense of, Owner, and the rent and other items of additional rent, until such
repair shall be substantially completed, shall be apportioned from the day
following the casualty, according to the part of the demised premises which is
usable. (c) If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the rent and other items of additional
rent, as hereinafter expressly provided, shall be proportionately paid up to the
time of the casualty, and thenceforth shall cease until the date when the
demised premises shall have been repaired and restored by Owner (or if sooner
reoccupied in part by Tenant then rent shall be apportioned as provided in
subsection (b) above), subject to Owner's right to elect not to restore the same
as hereinafter provided. (d) If the demised premises are rendered wholly
unusable or (whether or not the demised premises are damaged in whole or in
part) if the building shall be so damaged that Owner shall decide to demolish it
or to rebuild it, then, in any of such events, Owner may elect to terminate this
lease by written notice to Tenant, given within ninety (90) days after such fire
or casualty, whichever is sooner, specifying a date for the expiration of the
lease, which date shall not be more than fifteen (15) days after the giving of
such notice, and upon the date specified in such notice the term of this lease
shall expire as fully and completely as if such date were the date set forth
above for the termination of this lease, and Tenant shall forthwith quit,
surrender and vacate the demised premises without prejudice however, to
Landlord's rights and remedies against Tenant under the lease provisions in
effect prior to such termination, and any rent owing shall be paid up to such
date, and any payments of rent made by Tenant which were on account of any
period subsequent to such date shall be returned to Tenant. Unless Owner shall
serve a termination notice as provided for herein, Owner shall make the repairs
and restorations under the conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond Owner's control. After any such casualty, Tenant
shall cooperate with Owner's restoration by removing from the demised premises
as promptly as reasonably possible, all of Tenant's salvageable inventory and
moveable equipment, furniture, and other property. Tenant's liability for rent
shall resume five (5) days after written notice from Owner that the demised
premises are substantially ready for Tenant's occupancy. (e) Nothing contained
hereinabove shall relieve Tenant from liability that may exist as a result of
damage from fire or other casualty. Notwithstanding the foregoing, including
Owner's obligation to restore under subparagraph (b) above, each party shall
look first to any insurance in its favor before making any claim against the
other party for recovery for loss or damage resulting from fire or other
casualty, and to the extent that such insurance is in force and collectible, and
to the extent permitted by law, Owner and Tenant each hereby releases and waives
all right of recovery with respect to subparagraphs (b), (d), and (e) above,
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The release and waiver herein referred to shall be
deemed to include any loss or damage to the demised premises and/or to any
personal property, equipment, trade fixtures, goods and merchandise located
therein. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefiting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant, and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then,
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding, and Tenant shall have no claim for the
value of any unexpired term of said lease, and assigns to Owner, Tenant's entire
interest in any such award. Tenant shall have the right to make an independent
claim to the condemning authority for the value of Tenant's moving expenses and
personal property, trade fixtures and equipment, provided Tenant is entitled
pursuant to the terms of the lease to remove such property, trade fixture and
equipment at the end of the term, and provided further such claim does not
reduce Owner's award.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant or the majority partnership interest of a
partnership Tenant shall be deemed an assignment. If this lease be assigned, or
if the demised premises or any part thereof be underlet or occupied by anybody
other than Tenant, Owner may, after default by Tenant, collect rent from the
assignee, undertenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, undertenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting.
Electric Current:
12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation, and
Tenant may not use any electrical equipment which, in Owner's opinion,
reasonably exercised, will overload such installations or interfere with the use
thereof by other tenants of the building. The change at any time of the
character of electric service shall in no wise make Owner liable or responsible
to Tenant, for any loss, damages or expenses which Tenant may sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and, at other
reasonable times, to examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to the demised
premises or to any other portion of the building or which Owner may elect to
perform. Tenant shall permit Owner to use and maintain and replace pipes and
conduits in and through the demised premises and to erect new pipes and conduits
therein, provided they are concealed within the walls, floor, or ceiling. Owner
may, during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction, nor shall the Tenant be entitled to an abatement of rent while such
work is in progress, nor to any damages by reason of loss or interruption of
business or otherwise. Throughout the term hereof, Owner shall have the right to
enter the demised premises at reasonable hours for the purpose of showing to
same to prospective purchasers or mortgagees of the building, and during the
last six months of the term, for the purpose of showing the same to prospective
tenants. If Tenant is not present to open and permit an entry into the demised
premises, Owner or Owner's agents may enter the same whenever such entry may be
necessary or permissible by master key or forcibly, and provided reasonable care
is exercised to safeguard Tenant's property, such entry shall not render Owner
or its agents liable therefor, nor in any event shall the obligations of Tenant
hereunder be affected. If during the last month of the term Tenant shall have
removed all or substantially all of Tenant's property therefrom, Owner may
immediately enter, alter, renovate or redecorate the demised premises without
limitation or abatement of rent, or incurring liability to Tenant for any
compensation, and such act shall have no effect on this lease or Tenant's
obligations hereunder.
Vault, Vault Space Area:
14. No vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building, is leased hereunder, anything
contained in or indicated on any sketch, blue print or plan, or anything
contained elsewhere in this lease to the contrary notwithstanding. Owner makes
no representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability, nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are a part. Tenant has inspected the demised premises and accepts them
as is, subject to the riders annexed hereto with respect to Owner's work, if
any. In any event, Owner makes no representation as to the condition of the
demised premises, and Tenant agrees to accept the same subject to violations,
whether or not of record.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by the sending of a written notice to Tenant
within a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor; or (2) the making by Tenant of an assignment
or any other arrangement for the benefit of creditors under any state statue.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised but shall forthwith quit and surrender the demised premises. If
this lease shall be assigned in accordance with its terms, the provisions of
this Article 16 shall be applicable only to the party then owning Tenant's
interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages, an amount equal to the difference between
the rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination, and
the fair and reasonable rental value of the demised premises for the period for
which such installment was payable, shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such demised premises
or any part thereof be re-let by the Owner for the unexpired term of said lease,
or any part thereof, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the amount of rent reserved upon such
re-letting shall be deemed to be the fair and reasonable rental value for the
part or the whole of the demised premises so re-let during the term of the
reletting. Nothing herein contained shall limit or prejudice the right of the
Owner to prove for and obtain as liquidated damages, by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than, the amount of the difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises become vacant or deserted; or if any execution or attachment
shall be issued against Tenant or any of Tenant's property, whereupon the
demised premises shall be taken or occupied by someone other than Tenant; or if
this lease be rejected under Section 365 of Title 11 of the U.S. Code
(Bankruptcy Code); or if Tenant shall fail to move into or take possession of
the demised premises within thirty (30) days after the commencement of the term
of this lease, then, in any one or more of such events, upon Owner serving a
written fifteen (15) days notice upon Tenant specifying the nature of said
default, and upon the expiration of said fifteen (15) days, if tenant shall have
failed to comply with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be completely cured or
remedied within said fifteen (15) day period, and if Tenant shall not have
diligently commenced curing such default within such fifteen (15) day period,
and shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written five (5) days notice
of cancellation of this lease upon Tenant, and upon the expiration of said five
(5) days this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof,
and Tenant shall then quit and surrender the demised premises to Owner, but
Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein, or any item of additional rent herein
mentioned, or any part of either, or in making any other payment herein
required; then, and in any of such events, Owner may re-enter the demised
premises and dispossess Tenant by summary proceedings or other legal process and
the legal representative of Tenant or other occupant of the demised premises,
and remove their effects and hold the demised premises as if this lease had not
been made. If Tenant shall make default hereunder prior to the date fixed as the
commencement of any renewal or extension of this lease, Owner may cancel and
terminate such renewal or extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent shall become due thereon and be
paid up to the time of such re-entry, dispossess and/or expiration, (b) Owner
may re-let the demised premises or any part or parts thereof, either in the name
of Owner or otherwise, for a term or terms, which may at Owner's option be less
than or exceed the period which would have otherwise constituted the balance of
the term of this lease, and may grant concessions or free rent or charge a
higher rental than that in this lease, and/or (c) Tenant or the legal
representatives of Tenant shall also pay to Owner as liquidated damages for the
failure of Tenant to observe and perform said Tenant's covenants herein
contained, any deficiency between the rent hereby reserved and/or covenanted to
be paid and the net amount, if any, of the rents collected on account of the
lease or leases of the demised premises for each month of the period which would
otherwise have constituted the balance of the term of this lease. The failure
of Owner to re-let the demised premises, or any part or parts thereof, shall not
release or affect Tenant's liability for damages. In computing such liquidated
damages there shall be added to the said deficiency such expenses as Owner may
incur in connection with re-letting, such, as legal expenses, reasonable
attorneys' fees, brokerage, advertising and for keeping the demised premises in
good order or for preparing the same for re-letting. Any such liquidated
damages shall be paid in monthly installments by Tenant on the rent day
specified in this lease, and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgement,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of
the covenants or provisions hereof, Owner shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if re-entry,
summary proceedings and other remedies were not herein provided for. Mention in
this lease of any particular remedy, shall not preclude Owner from any other
remedy, in law or in equity. Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed or for any cause, or in the event of Owner
obtaining possession of the demised premises, by reason of the violation by
Tenant of any of the covenants and conditions of this lease, or otherwise.
Fees and Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under, or by virtue of,
any of the terms or provisions in any article of this lease, after notice, if
required, and upon expiration of any applicable grace period, if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately, or at any time thereafter and without notice, perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing, or
in connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorneys' fees, in instituting,
prosecuting or defending any action or proceeding, and prevails in any such
action or proceeding, then Tenant will reimburse Owner for such sums so paid, or
obligations incurred, with interest and costs. The foregoing expenses incurred
by reason of Tenant's default shall be deemed to be additional rent hereunder,
and shall be paid by Tenant to Owner within ten (10) days of rendition of any
▇▇▇▇ or statement to Tenant therefor. If Tenant's lease term shall have expired
at the time of making of such expenditures or incurring of such obligations,
such sums shall be recoverable by Owner, as damages.
Building Alterations and Management:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor, to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building, and
to change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
such controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
No Representations Owner:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the by physical condition of the building, the land upon which
it is erected or the demised premises, the rents, leases, expenses of operation
or any other matter or thing affecting or related to the demised premises,
except as herein expressly set forth, and no rights, easements or licenses are
acquired by Tenant by implication or otherwise except as expressly set forth in
the provisions of this lease. Tenant has inspected the building and the demised
premises and is thoroughly acquainted with their condition and agrees to take
the same "as-is", and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant, and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
END OF TERM:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises "broom-clean" in good
order and condition, ordinary wear and tear and damages which Tenant is not
required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If the
last day of the term of this lease or any renewal thereof, falls on a Sunday,
this lease shall expire at noon on the preceding Saturday, unless it be a legal
holiday, in which case it shall expire at noon on the preceding business day.
QUIET ENJOYMENT:
23. Owner covenant and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless,
to the terms and condition of this lease including, but not limited to,
Article 31 hereof, and to the ground leases, underlying leases and mortgages
hereinbefore mentioned.
FAILURE TO GIVE POSSESSION:
24. If Owner is unable to give possession of the demised premises on the date of
the commencement of the term hereof because of the holding-over or retention of
possession of any tenant undertenant or occupants, or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the demised premises ready for occupancy, or
because of the fact that a certificate of occupancy has not been procured, or
for any other reason, Owner shall not be subject to any liability for failure to
give possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this lease, but the rent payable hereunder shall be abated (provided
Tenant is not responsible for Owner's inability to obtain possession or complete
construction) until after Owner shall have given Tenant written notice that the
Owner is able to deliver possession in condition required by this lease. If
permission is given to Tenant to enter into possession of the demised premises,
or to occupy premises other than the demised premises, prior to the date
specified as the commencement of the term of this lease, Tenant covenants and
agrees that such possession and/or occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease, except the obligation
to pay the fixed annual rent set forth in the preamble to this lease. The
provisions of this article are intended to constitute "an express provision to
the contrary" within the meaning of Section 223-a of the New York Real Property
Law.
NO WAIVER:
25. The failure of Owner to seek redress for violation of, or to insist upon the
strict performance of, any covenant or condition of this lease or of any of the
Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent
a subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of rent
and/or additional rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such a breach, and no provision of this
lease shall be deemed to have been waived by Owner unless such waiver be in
writing signed by Owner. No payment by Tenant or receipt by Owner of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement of any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Owner may accept such check or payment
without prejudice to Owner's right to recover the balance of such rent or pursue
any other remedy in this lease provided. No act or thing done by Owner or
Owner's agents during the term hereby demised shall be deemed an acceptance of a
surrender of the demised premises, and no agreement to accept such surrender
shall be valid unless in writing signed by Owner. No employee of Owner or
Owner's agent shall have any power to accept the keys of said premises prior to
the termination of the lease, and the delivery of keys to any such agent or
employee shall not operate as a termination of the lease or a surrender of the
demised premises.
WAIVER OF TRIAL BY JURY:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall, and they hereby do, waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of, or in any way connected with, this lease, the relationship of
Owner and Tenant, Tenant's use of, or occupancy of, the demised premises, and
any emergency statutory or any other statutory remedy. It is further mutually
agreed that in the event Owner commences any proceeding or action for
possession, including a summary proceeding for possession of the demised
premises, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding, including a counterclaim under Article 4,
except for statutory mandatory counterclaims.
INABILITY TO PERFORM:
27. This lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease, or to supply, or is
delayed in supplying, any service expressly or impliedly to be supplied, or is
unable to make, or is delayed in making, any repair, additions, alterations, or
declarations, or is unable to supply, or is delayed in supplying, any equipment,
fixtures, or other materials, if Owner is prevented or delayed from so doing by
reason of strike or labor troubles or any cause whatsoever including, but not
limited to, government preemption or restrictions, or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency, or by reason of the conditions which have been or are affected, either
directly or indirectly, by war or other emergency.
BILLS AND NOTICES:
28. Except as otherwise in this lease provided, a ▇▇▇▇, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently, given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail or recognized overnight
courier addressed to Tenant at the building of which the demised premises form a
part, or at the last known resident address or business address of Tenant, or
left at any of the aforesaid premises addressed to Tenant, and the time of the
rendition of such ▇▇▇▇ or statement and of the giving of such notice or
communication shall be deemed to be the time when the same is delivered to
Tenant, mailed, or left at the premises as herein provided. Any notice by Tenant
to Owner must be served by registered or certified mail or recognized overnight
courier addressed to Owner at the address first hereinabove given or at such
other address as Owner shall designate by written notice.
SERVICES PROVIDED BY OWNERS:
29. As long as Tenant is not in default under any of the covenants of this lease
for the curing of such defaults, Owner shall provide: (a) necessary elevator
facilities on business days from 8 a.m. to 6 p.m. and have one elevator subject
to call at all other times; (b) heat to the demised premises when and as
required by law, on business days from 8 a.m. to 6 p.m.; (c) water for ordinary
lavatory purposes, but if Tenant uses or consumes water for any other purposes
or in unusual quantities (of which Owner shall be the sole judge), Owner may
install a water meter at Tenant's expense, which Tenant shall thereafter
maintain at Tenant's expense in good working order and repair, to register such
water consumption, an Tenant shall pay for water consumed as shown on said meter
as additional rent as and when bills are rendered; (d) cleaning service for the
demised premises on business days at Owner's expense provided that the same are
kept in order by Tenant. No one other than persons approved by Owner shall be
permitted to enter said premises or the building of which they are a part for
such purpose. Tenant shall pay Owner the cost of removal of any of Tenant's
refuse and rubbish from the building in excess of standard office rubbish (f)
Owner reserves the right to stop services of the heating, elevators, plumbing
air-conditioning, electric, power systems or cleaning or other services, if any,
when necessary by reason of accident, or for repairs, alterations, replacements
or improvements necessary or desirable in the judgement of Owner, for as long as
may be reasonably required by reason thereof. If the building of which the
demised premises are a part supplies manually operated elevated service, Owner
at any time may substitute automatic control elevator service and proceed
diligently with alterations necessary therefor without in any wise affecting
this lease or the obligations of Tenant hereunder.
CAPTIONS:
30. The Captions are inserted only as a matter of convenience and for reference,
and in no way define, limit or describe the scope of this lease nor the intent
of any provisions thereof.
DEFINITIONS:
31. The term "office", or "offices", wherever used in this lease, shall not be
construed to mean premises used as a store or stores, for the sale or display,
at any time, of goods, wares or merchandise, of any kind, or as a restaurant,
shop, booth, bootblack or other stand, ▇▇▇▇▇▇ shop, or for other similar
purposes, or for manufacturing. The term "Owner" means a landlord or lessor, and
as used in the lease means only the owner, or the mortgagee in possession for
the time being, of the land and building (or the owner of a lease of the
building or of the land and building) of which the demised premises form a part,
so that in the event of any sale or sales of said land and building, or of said
lease, or in the event of a lease of said building, or of the land and building,
the said Owner shall be, and hereby is, entirely freed and relieved of all
covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays,
Sundays and all days as observed by the State or Federal Government as legal
holidays and those designated as holidays by the applicable building service
union employees service contract, or by the applicable Operating Engineers
contract with respect to HVAC service. Wherever it is expressly provided in this
lease that consent shall not be unreasonably withheld, such consent shall not be
unreasonably delayed.
ADJACENT EXCAVATION-SHORING:
32. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, a license to enter upon the demised
premises for the purpose of doing such work as said person shall deem necessary
to preserve the wall or the building, of which demised premises form a part,
from injury or damage, and to support the same by proper foundations, without
any claim for damages or indemnity against Owner, or diminution or abatement of
rent.
RULES AND REGULATIONS:
33. Tenants and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply strictly with, the Rules and Regulations
and such other and further reasonable Rules and Regulations as Owner or Owner's
agents may from time to time adopt. Notice of any additional Rules or
Regulations shall be given in such manner as Owner may elect. In case Tenant
disputes the reasonableness of any additional Rules or Regulations hereafter
made or adopted by Owner or Owner's agents, the parties hereto agree to submit
the question of the reasonableness of such Rules or Regulations for decision to
the New York Office of the American Arbitration Association, whose determination
shall be final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rules or Regulations upon Tenant's part shall
be deemed waived unless the same shall be asserted by service of a notice, in
writing, upon Owner, within fifteen (15) days after the giving of notice
thereof. Nothing in this lease contained shall be construed to impose upon Owner
any duty or obligation to enforce the Rules and Regulations or terms, covenants
or conditions in any other lease, as against any other tenant, and Owner shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees.
SECURITY:
34. Tenant has deposited with Owner the sum of $56,250.00* as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent or additional rent, or any other sum as to
which Tenant is in default, or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including, but not limited to, any
damages or deficiency in the re-letting of the demises premises, whether such
damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
lease and after delivery of the entire possession of the demised premises to
Owner. In the event of a sale of the land and building, or leasing of the
building, of which the demised premises form a part, Owner shall have the right
to transfer the security to the vendee or lessee, and Owner shall thereupon be
released by Tenant from all liability for the return of such security; and
Tenant agrees to look to the new Owner
solely for the return of said security, and it is agreed that the provisions
hereof shall apply to every transfer or assignment made of the security to a new
Owner. Tenant further covenants that it will not assign or encumber, or attempt
to assign or encumber, the monies deposited herein as security, and that neither
Owner nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
Estoppel Certificate:
35. Tenant, at any time, and from time to time, upon at least ten (10) days
prior notice by Owner, shall execute, acknowledge and deliver to Owner, and/or
to any other person, firm or corporation specified by Owner, a statement
certifying that this lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this lease, and, if so, specifying each such default.
Successors and Assigns:
36. The covenants, conditions and agreements contained in this lease shall bind
and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building, for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under, or with respect to, this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written. Additional Articles #37
through #70 attached hereto and made a part hereof.
▇▇▇▇▇▇ ▇. DAY REALTY CORP.,
as Agent for Owner
Witness for Owner: --------------------------------------
By:
------------------------------ --------------------------------------
BRAND MANUFACTURING CORP.
Witness for Tenant: --------------------------------------
By:
------------------------------ --------------------------------------
ACKNOWLEDGEMENT
STATE OF NEW JERSEY
SS.:
COUNTY OF BERGEN
On the 3rd day of November in the year 2000, before me, the undersigned, a
Notary Public in and said for said State, personally appeared ▇▇▇▇ ▇▇▇▇▇▇▇,
personally know to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by Tenant or
used for any purpose other than for ingress or egress from the demised premises,
and for delivery of merchandise and equipment in a prompt and efficient manner
using elevators and passageways designated for such delivery by Owner. There
shall not be used in any spaces, or in the public hall of the building, either
by Tenant or by jobbers or other in the delivery or receipt of merchandise, any
hand trucks, except those equipped with rubber tires and sideguards. If said
premises are situated on the ground floor of the building, Tenant thereof shall
further, at Tenant's expense, keep the sidewalk and curb in front of said
premises clean and free from ice, snow, dirt, and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes, other than those for which they were designed or constructed, and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant, whether or not caused by
the Tenant, or its clerks, agents, employees or visitors.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building and Tenant shall not sweep or throw, or permit to be swept or
thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building, and Tenant shall not use, keep or permit to be used or kept, any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the building by reason of noise,
odors, and/or vibrations, or interfere in any way with other tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish, or
birds be kept in or about the building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
demised premises or the building, or on the inside of the demised premise if
the same is visible from the outside of the demised premises, without the prior
written consent of Owner, except that the name of Tenant may appear on the
entrance door of the demised premises. In the event of the violation of the
foregoing by Tenant, Owner may remove same without any liability, and may charge
the expense incurred by such removal to Tenant. Interior signs on doors and
directory tablet shall be inscribed, painted or affixed for Tenant by Owner at
the expense of Tenant, and shall be of a size, color and style acceptable to
Owner.
6. Tenant shall not ▇▇▇▇, paint, drill into, or in any way deface, any part of
the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct. Tenant shall not lay linoleum, or
other similar floor covering, so that the same shall come in direct contact with
the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in existing locks or
mechanism thereof. Tenant must, upon the termination of his tenancy, restor to
Owner all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, Tenant and in the event of the loss of any keys, so
furnished, Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the demised premises only on
the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease, or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and Tenant
shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building all persons who do not
present a pass to the building signed by Owner. Owner will furnish passes to
persons for whom Tenant requests same in writing. Tenant shall be responsible
for all persons for whom he requests such pass, and shall be liable to Owner for
all acts of such persons. Tenant shall not have a claim against Owner by reason
of Owner excluding from the building any person who does not present such pass.
11. Owner shall have the right to prohibit any advertising by Tenant which in
Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for offices, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any flammable, combustible, explosive, or hazardous fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors, to permeate in, or
emanate from, the demised premises.
13. If the building contains central air conditioning and ventilation, Tenant
agrees to keep all windows closed at all times and to abide by all rules and
regulations issued by Owner with respect to such services. If Tenant requires
air conditioning or ventilation after the usual hours, Tenant shall give notice
in writing to the building superintendent prior to 3:00 p.m. in the case of
services required on weekdays, and prior to 3:00 p.m. on the day prior in case
of after hours service required on weekends or on holidays. Tenant shall
cooperate with Owner in obtaining maximum effectiveness of the cooling system by
lowering and closing venetian blinds and/or drapes and curtains when the sun's
rays fall directly on the windows of the demised premises.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto, and shall be done during such hours as Owner may designate.
15. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and
agrees, at its sole cost and expense, to comply with all present and future
laws, orders, and regulations, of all state, federal, municipal, and local
governments, departments, commissions and boards regarding the collection,
sorting, separation and recycling of waste products, garbage, refuse and trash.
Tenant shall sort and separate such waste products garbage, refuse and trash
into such categories as provided by law. Each separately sorted category of
waste products, garbage, refuse and trash shall be placed in separate
receptacles reasonably approved by Owner. Such separate receptacles may, at
Owner's option, be removed from the demised premises in accordance with a
collection schedule prescribed by law. Tenant shall remove, or cause to be
removed by a contractor acceptable to Owner, at Owner's sole discretion, such
items as Owner may expressly designate. (2) Owner's Rights in Event of
Noncompliance. Owner has the option to refuse to collect or accept from Tenant
waste products, garbage, refuse or trash (a) that is not separated and sorted as
required by law or (b) which consists of such items as Owner may expressly
designate for Tenant's removal, and to require Tenant to arrange for such
collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Owner. Tenant shall pay all costs, expenses, fines, penalties,
or damages that may be imposed on Owner or Tenant by reason of Tenant's failure
to comply with the provisions of this Building Rule 15, and, at Tenant's sole
cost and expense, shall indemnity, defend and hold Owner harmless (including
reasonable legal fees and expenses) from and against any actions, claims and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to Owner.
RENT SCHEDULE
===============================================================================
YEAR 1: TWO HUNDRED TWENTY FIVE THOUSAND AND 00/100 ($225,000.00) DOLLARS.
YEAR 2: TWO HUNDRED THIRTY ONE THOUSAND SEVEN HUNDRED FIFTY AND 00/100
($231,750.00) DOLLARS.
YEAR 3: TWO HUNDRED THIRTY EIGHT THOUSAND SEVEN HUNDRED TWO AND 50/100
($238,702.50) DOLLARS.
YEAR 4: TWO HUNDRED FORTY FIVE THOUSAND EIGHT HUNDRED SIXTY THREE AND 57/100
($245,863.57) DOLLARS.
YEAR 5: TWO HUNDRED SIXTY TWO THOUSAND TWO HUNDRED THIRTY NINE AND 47/100
($262,239.47) DOLLARS.
YEAR 6: TWO HUNDRED SEVENTY THOUSAND ONE HUNDRED SIX AND 65/100
($270,106.65) DOLLARS.
YEAR 7: TWO HUNDRED SEVENTY EIGHT THOUSAND TWO HUNDRED NINE AND 84/100
($278,209.84) DOLLARS.
YEAR 8: TWO HUNDRED EIGHTY SIX THOUSAND FIVE HUNDRED FIFTY SIX AND 13/100
($286,556.13) DOLLARS.
YEAR 9: TWO HUNDRED NINETY FIVE THOUSAND ONE HUNDRED FIFTY TWO AND 81/100
($295,152.81) DOLLARS.
STANDARD LEASE RIDER
37. RIDER PROVISIONS PARAMOUNT
If and to the extent that any of the provisions of this Rider conflict or are
otherwise inconsistent with any of the preceding printed provisions of this
Lease, whether or not such inconsistency is expressly noted in this Rider, the
provisions of this Rider shall prevail, and in case of inconsistency with the
Rules and Regulations, shall be deemed a waiver of such Rules and Regulations
with respect to this Tenant to the extent of such inconsistency.
38. BINDING EFFECT
It is specifically understood and agreed that this Lease is offered to Tenant
for signature by the managing Agent of the Building solely in its capacity as
such Agent and subject to Owner's acceptance and approval, and that Tenant shall
have affixed its signature hereto with the understanding that such act shall
not, in any way, bind Owner or its Agent until such time as this Lease shall
have been approved and executed by the managing Agent or the Owner and delivered
to Tenant. If on the signing or at any time during the term of this lease, the
"Owner" is acting as such in fiduciary capacity or capacities, then such "Owner"
shall not be bound hereby or be liable hereunder or for any covenant or
warranty, expressed or implied, otherwise than in such capacity or capacities.
The managing agent, ▇▇▇▇▇▇ ▇. Day Realty Corp., has the authority to bind the
Owner by signing this Lease on behalf of Owner.
39. REAL ESTATE TAX ESCALATION
Tenant shall pay Owner as additional rents the amounts as set forth in this
Article 39. Tenant shall be allowed to pay the annual increase in two equal
installments in August and December of each calendar year.
A. The following definitions shall apply:
1. "Taxes" shall mean the real estate taxes and assessments and special
assessments imposed upon the Building and/or the land ("the Building") by any
governmental bodies or authorities for any purpose whatsoever or any other
governmental charges whether general or special, ordinary or extraordinary,
foreseen or unforeseen, which may be levied or assessed with respect to the
Building during the term of this Lease or any renewal thereof whether the
increase results from a higher tax rate or an increase in the assessed value of
the Building or both or other means of increase. If at any time after the date
hereof the methods of taxation prevailing on the date hereof shall be altered so
that in lieu of, or as an addition to or as a substitute for the whole or any
part of the taxes, assessments, levies, impositions or charges now levied,
assessed or imposed on real estate and the improvements thereof, there shall be
levied, assessed and imposed (i) a tax, assessment, levy or otherwise on the
rents received therefrom, or (ii) a license fee measured by the rent payable by
Tenant to Owner, or (iii) any other additional or substitute tax, assessment,
levy, imposition or charge, then all such taxes, assessments, levies,
impositions or charges or the part thereof so measured or based shall be deemed
to be included within the term "Taxes" for the purpose hereof. Taxes shall not
include any inheritance, estate, succession, transfer, gift, franchise,
corporation, income or profit tax or excess profits or interest, penalties or
late charges due to late payment of Taxes by Owner that is or may be imposed
upon Owner. Tenant agrees to pay Tenant's Share of the actual costs incurred by
Owner in any tax protest or reduction proceedings, including attorneys,
accountants and appraiser's fees and any other filing or court fees or other
costs, disbursement or expenses incurred with relation to each Tax Year during
the term of this Lease.
2. "Base Tax" shall mean Taxes, as finally determined by
settlement, court decision or otherwise, for the calendar Year 2001.
3. "Tax Year" shall mean the fiscal year for which Taxes are levied by
the governmental authority.
4. "Tenant's Shares" shall mean 1.29 percent (1.29%) throughout the term
of this Lease irrespective of the bulk of the Building and the Demised Premises
and any additions or demolition at any time during the term hereof.
5. "Building" shall mean the land and building known as ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ in the borough of Manhattan, city and state of New York of which the
Demised Premises form a part.
B. 1. If, for any reason, the Taxes for any Tax Year shall be more than the
Base Tax, Tenant shall pay as additional rent for such Tax Year an amount equal
to Tenant's Share of the amount by which the Taxes for such Tax Year are greater
than the Base Tax. (The amount payable by Tenant is hereinafter called the "Tax
Payment") Owner or Agent shall furnish Tenant with a statement showing the
calculations for any year in which a Tax Payment is due and if requested with
copies of the tax bills.
2. In the event the Base Tax is reduced as a result of settlement, court
decision or of any other appropriate proceeding or agreement. Owner shall have
the right to adjust the amount of Tax Payment due from Tenant for any Tax Year
in which Tenant is or was obligated to pay a Tax Payment hereunder to reflect
the new Base Tax, and Tenant agrees to pay the amount of said adjustment on the
next rental installment day immediately following receipt of a rent statement
from Owner setting forth the amount of said adjustment.
C. With respect to any period at the commencement or expiration of the
term, which shall constitute a partial Tax Year, Owner's statement shall
apportion the amount of the Tax Payment due hereunder.
D. Beginning with the first Tax Year in which Taxes are greater than the
Base Tax, the Tax Payment for that year shall be paid in full promptly after
billing.
E. Owner shall be under no obligation to contest the Taxes or the
assessed valuation of the land and the Building for any Tax Year or to refrain
from contesting the same, and may settle any such contest on such terms as Owner
in its sole judgment considers proper.
F. Owner's failure during the Lease term to prepare and deliver any
statements or ▇▇▇▇ for Tax Payment, or Owner's failure to make a demand under
this Article 39 or under any other provisions of this Lease shall not in any way
be deemed to be a waiver of or cause Owner to forfeit or surrender its right to
collect any items of additional rent which may have become due pursuant to this
Article 39 or any other article of this Lease during the term of this Lease.
Tenant's liability for the additional rent due under this Article 39 shall
survive the expiration or sooner termination of this Lease.
G. In no event shall any adjustment of Tax Payments hereunder result in
a decrease of the fixed rent or additional rent payable pursuant to any other
provisions of this Lease, it being agreed that the payment of additional rent
under this Article 39 is an obligation supplemental and in addition to Tenant's
obligation to pay fixed rent.
H. It is understood by Tenant that Owner may obtain and accept
reductions in the proposed assessed valuation of the Building in a settlement in
a Tax Year during the term of this Lease before the Owner has paid the Taxes and
such reduction will substantially reduce the real estate tax escalation for the
Tax Year due from Tenant under this Article. Tenant therefore agrees the
expenses of the Owner in obtaining such reduction, including reasonable legal
fees, accounting fees, appraisal fees and other expenses shall be deemed to be
Taxes paid for the Tax Year of said reduction.
In the event the Taxes for any Tax Year during the term of this Lease shall be
reduced after Tenant shall have paid Tenant's Share of any excess thereof in
respect of such Tax Year pursuant to this Article, Owner shall allow Tenant a
credit against future rent, or issue a refund to Tenant (if the term of this
Lease shall have expired) in the amount of Tenant's Share of the refund
(including any interest paid on such refund by the taxing authority) of Taxes
received by Owner (after deduction of expenses, including legal fees, accounting
fees, appraisal fees and other expenses incurred by Owner in obtaining such
refund).
40. HEATING COSTS
Anything to the contrary notwithstanding and in addition to billing pursuant to
this Lease. Tenant agrees that in the event Heating Costs for any calendar year
shall be greater than the Heating Costs for the calendar year 2001 as a result
of but not limited to increases in or additions to the number of units used,
rates, fuel adjustments, taxes, surcharges, energy charges or charges of any
kind, Tenant agrees to pay to Owner within ten (10) days after receipt of
Owner's statement, 1.29 percent (1.29%) of such excess for the particular
calendar year. In the event that Owner exercises its option pursuant herein and
during such Lease years, this Article 40 shall not apply. Heating Costs as used
in this Article 40 shall mean fuel costs if Owner continues to use its own
heating plant or the cost of outside heating or steam if the Owner uses an
off-premises heating service. In no event shall Tenant's annual increases exceed
$1,000.00 over the prior years charge.
41. LOCAL LAWS
If any alterations, installations, changes or improvements 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 No. 5 (fire protection) and New York City
Law No. 10 (building condition) as each may be amended or any successor or law
of like import, at any time after the date of this Lease and prior to the
expiration date of this Lease, the cost of any such alterations shall, for
purposes of this Article 41, be deemed amortized by Owner in accordance with an
amortization schedule with a reasonable interest factor included therein,
determined by
Owner in Owner's judgement, and during each calendar year which shall include
any part of the demised term for which such an amortization shall be applicable,
Tenant shall pay to Owner a sum equal to 1.29 percent (1.29%) of such
amortization and interest applicable to such calendar year. Tenant shall not be
required to make any payment under this Article by reason of alterations
required to be made by laws in effect as of the date of execution of this Lease.
42. ADDITIONAL RENT
All escalation rents, additional rent and any and all other payments, charges
and sums due by the Tenant to the owner under this Lease whether or not
designated as such shall be deemed rent for all purposes hereunder and by law,
and the failure to pay any such amount shall subject the Tenant to the same
rights and remedies of the Owner including the right to commence summary
proceedings for nonpayment of rent as if such escalation rent, additional rent
and other payments, charges and sums due were Fixed Annual Base Rent hereunder.
43. ACCEPTANCE OF RENT
If Tenant is in arrears in the payment of fixed rent or additional rent, Tenant
waives its rights, if any, to designate the items in arrears against which any
payments made by Tenant are to be credited, and Owner may apply any of such
payments to any such items in arrears as Owner, in its sole discretion, shall
determine, irrespective of any designation or request by Tenant as to the items
against which any such payments shall be credited. No payment by Tenant nor
receipt by Owner of a lesser amount than may be required to be paid hereunder
shall be deemed to be other than on account of any payment nor shall any
endorsement or statement on any check or any letter accompanying any check
tendered as payment be deemed as accord and satisfaction and Owner may accept
such check or payment without prejudice to Owner's right to recover the balance
of such payment due or pursue any other remedy in this Lease provided or at law.
No receipt of monies by Owner from Tenant, after any reentry or after the
cancellation or termination of this Lease in any lawful manner shall reinstate
this Lease; and after the service of notice to terminate this Lease, or after
the commencement of any action, proceeding or other remedy, Owner may demand,
receive and collect any monies due and apply this on account of Tenant's
obligations under this Lease but without in any respect affecting such notice,
action, proceeding or remedy, except that if a money judgement is being sought
in any such action or proceeding, the amount of such judgement shall be reduced
by such payment. All checks rendered to the Owner as and for the rent of the
Demised Premises shall be deemed payments for the account of the Tenant.
Acceptance by the Owner of rent from anyone other than the Tenant shall not be
deemed to operate as an attornment to the Owner by the payor of such rent or as
a consent by the Owner to an assignment or subletting by the Tenant to the
Demised Premises to such payor, or as a modification of the provisions of this
Lease.
44. LATE PAYMENT
If Tenant shall fail to pay any installment of rent, additional rent or other
charges when first due hereunder (irrespective of any grace period as may be
applicable thereto) and such payment was not received in the office of the
Owner's Agent on or before the tenth (10th) business day after such payment was
first due, then interest at the rate of one and one half percent (1-1/2%) per
month for each month or portion of a month may be charged on such sum not paid
when first due and payable hereunder, and such interest shall be deemed to
accrue as additional rent hereunder and shall be paid to Owner upon demand made
from time to time, but in any event no later than the time of payment of the
delinquent sum. If such interest from time to time shall exceed the rate
permitted under the laws of the State of New York to be charged on late payments
of sums of money due pursuant to a lease, then the interest shall be reduced to
said legal maximum rate. Such late charge shall be without prejudice to any of
Owner's rights and remedies hereunder for nonpayment of rent and shall be in
addition thereto.
45. RENT CONTROL
If the annual base rental or any additional rent shall be or become
uncollectible, reduced or required to be refunded by virtue of any law,
governmental order or regulation, or direction of any public officer or body
pursuant to law, Tenant shall within ten (10) business days of request enter
into an agreement or agreements and take such other action as Owner may request,
as may be legally permissible, to permit Owner to collect the maximum annual
base rent and additional rent which may from time to time during the continuance
of such rent restriction be legally permissible, but not in excess of the
amounts of annual based rent or additional rent payable under this Lease. Upon
the termination of such rent restriction prior to the termination of the term of
this lease, (a) the annual base rent and additional rent, after such
termination, shall become payable under this Lease in the amount of the annual
base rent and additional rent set forth in this Lease for the period following
such termination, and (b) Tenant shall pay to Owner, to the maximum extent
legally permissible, an amount equal to (i) the annual base rent and additional
rent which would have been paid pursuant to this Lase but for such rent
restriction less (ii) the annual base rent and additional rent paid by Tenant to
Owner during the period that such rent restriction was in effect. This provision
shall survive the expiration or earlier termination of this Lease to the maximum
enforceable extent.
46. TENANT'S SECURITY
Owner shall unless prohibited by law or by the general policies of lending
institutions in New York City deposit the security in an interest-bearing
account with a bank selected by Owner. All interest which shall accrue on the
security shall be held as additional security in accordance with this Lease.
Owner shall be entitled to an administrative fee of 1% per year upon the
security deposited by the Tenant.
In the event that Tenant either (a) is more than 10 days late in the payment of
rent, rent escalation or additional rent more than two times in any 12-month
period, (b) makes any such payment which is dishonored more than two times
during any 12-month period, or (c) is more than one month behind in payment of
any rent, rent escalation or additional rent then regardless of whether or not
the default has been cured and in addition to any other remedies herein or at
law or in equity, Owner may give notice to Tenant requiring that the Tenant
deposit an additional two month's rent and rent escalations as additional
security under the Lease and any failure to deposit the aforesaid security shall
be deemed a substantial default under this Lease.
47. AIR CONDITIONING
It is understood and agreed that there has been installed in said Demised
Premises one (10) and one (3) ton air-cooled air conditioning unit complete with
ducts and registers and delivered in good working order. The air conditioning
system shall be operated and maintained during the term of this Lease by the
Tenant at the sole expense of the Tenant and at the expiration or sooner
termination of this Lease, the Tenant agrees to surrender said air conditioning
system to the Owner in good order and condition, reasonable wear and tear
expected. The Tenant agrees to enter into and keep in full force and effect at
all times during the term of this Lease a contract for the proper servicing and
maintenance of said air conditioning system with a contractor approved by the
Owner which approval as to a contractor already doing work in the Building will
not be unreasonably withheld or delayed and to pay the charges for said
maintenance contract and the air conditioning permit fees. Any air conditioning
units, ducts and registers installed by Tenant (other than window units which do
not replace existing window units) shall upon installation, become the property
of Owner and be left in the Demised Premises upon the termination of this Lease,
and Tenant shall maintain said units, as set forth aforesaid in this Article.
Any window air conditioners if permitted pursuant to this Lease shall be
installed so as not to project beyond the Building line. It is further
understood and agreed that the installation and operation of any such window air
conditioning unit or units in the Demised Premises by the Tenant shall be in
accordance with all governmental regulations that apply thereto and in
accordance with building regulations, and that all costs and expense in
connection therewith shall be borne by the Tenant.
48. TENANT'S CLEANING
The Tenant agrees to employ such office cleaning and maintenance contractor so
long as said contractor's prices are competitive with industry standards as the
Owner may from time to time designate for all waxing, polishing and maintenance
work in the Demised premises above any cleaning services which may be provided
by Owner pursuant to this Lease. The Tenant shall not employ any other
contractor or individual without the owner's prior written consent which consent
shall be in Owner's sole discretion. Tenant recognizes that this provision is
for the security of the Building. The foregoing shall not preclude Tenant or its
employees from performing any of the foregoing work. In connection with all
refuse, Tenant agrees to comply with all governmental rules and regulations and
rules of the building ▇▇▇▇▇▇ as to separation of refuse and other refuse
recycling requirements and in connection therewith to pay for any required
refuse bags.
49. RESTRICTIONS ON USAGE
A. Tenant covenants and agrees that during the term of this Lease neither
Tenant, assignee nor any subtenant (if the same are permitted pursuant to this
Lease) will use as its name or as part of its name (under which it conducts
business) any name which, regardless of the spelling thereof, has the same or
similar sound or meaning as the words "MEDICAL CENTER", MEDICAL GROUP" or
"MEDICAL TREATMENT CENTER".
B. Notwithstanding anything to the contrary contained in this Lease, Tenant
covenants and agrees that Tenant will not use the Demised Premises or any part
thereof or permit the Demised Premises or any part thereof to be used:
(a) for banking, trust company or safe deposit business:
(b) as or by a commercial or savings bank, as or by a trust company,
as or by a savings and loan association, as or by a loan company
or as or by a credit union;
(c) for the sale of traveler's checks and/or foreign exchange;
(d) as a restaurant and/or bar, and/or for the sale of soda and/or
beverages and/or food or sandwiches and/or ice cream and/or baked
goods;
(e) as a diagnostic medical center and/or for the practice of medicine
or health services;
(f) as a school of any kind including but not limited to the teaching
of or instructions or giving courses in either secretarial skills,
and/or languages and/or the operation of office equipment and/or
business machines;
(g) for telephone answering, messenger, photocopying, express mail
services for other than Tenant;
(h) as an employment, placement or recruiting agency or similar
activity.
50. INDEMNIFICATION AND INSURANCE
Tenant agrees to indemnify and save Owner harmless from and against all damages,
liabilities, claims, costs and expenses, including reasonable attorneys' fees,
arising out of the use of the Demised Premises or the Building or the adjacent
sidewalks by Tenants or its employees, licensees, invitees, agents or
contractors or any work or thing done, or any condition created by Tenant or its
employees, licensees, Agents or contractors whether or not caused by negligence
or breach of an obligation by Tenant. This provision shall survive the
termination of this Lease. The Tenant shall, at full replacement cost, insure
its alterations, improvements, inventory, trade fixtures, personal property and
equipment against property damage for the Tenant and the Owner's benefit, as
their respective interest may appear.
Tenant covenants to provide (and deliver proof thereof) on or before the
commencement date of the term hereof and to keep in force during the whole time
period Tenant occupies Demised Premises a fully paid comprehensive general
liability insurance policy covering but not limited to all the above mentioned
items in respect of the Demised Premises and the conduct and operation of
business therein (and the sidewalks adjacent thereto) naming the Owner as a
named insured with limits of $2,000,000 for bodily injury and $250,000 property
damage including water damage and sprinkler leakage legal liability. At least
15 days prior to the expiration date of such policy, Tenant shall deliver to
Owner a fully paid renewal policy or insurance certificate.
Tenant agrees to deliver certificates of the insurance required by Article 3 of
the lease from contractors or subcontractors in reasonable amounts unless
otherwise required pursuant to Article 3.
All such policies shall be issued by companies of recognized responsibility
licensed to do business in the State of New York and shall contain a provision
whereby the same cannot be canceled or modified unless Owner is given at least
twenty (20) days' prior written notice by certified or registered mail of such
cancellation or modification.
If Tenant defaults in obtaining or delivering any such policy or policies or
fails to pay the premiums therefor, Owner may (but shall not be required to)
secure or pay for any such policy or policies and charge Tenant as additional
rent therefor. Such additional rent shall be payable by Tenant to Owner with the
fixed rent then next accruing. If Tenant defaults in paying the same with
interest to date of payment, Owner shall have the same rights and remedies on
account thereof as it has with respect to a default in the payment of the fixed
rent, including summary proceedings.
51. COST AND EXPENSES
All costs and expenses, including reasonable attorney's fees incurred by Owner
in and about enforcing any of the covenants and conditions of this Lease shall
be paid by Tenant as additional rent, and if not previously paid, shall be
included in any judgment rendered in Owner's favor in any court of competent
jurisdiction and against Tenant herein.
52. SERVICE CART
Tenant expressly agrees that it shall not permit or obtain or accept the
delivery of any food or beverage by any vendor operating a service cart or
similar means of conveyance to the Demised Premises, except by any vendor as
shall be approved in advance by Owner in writing.
53. BROKER
Owner and Tenant each covenants, warrants and represents that there was no
broker except the managing Agent ▇▇▇▇▇▇ ▇. DAY REALTY CORP. and DAKOTA REALTY
INC. instrumental in consummating this Lease and that no conversations or
negotiations were had with any broker except ▇▇▇▇▇▇ ▇. DAY REALTY CORP. and
DAKOTA REALTY INC. concerning the renting of the premises. Owner and Tenant each
agrees to hold the other harmless against any claims for brokerage commission
arising out of any conversations or negotiations had by the indemnifying party
with any broker except ▇▇▇▇▇▇ ▇. DAY REALTY CORP. and DAKOTA REALTY INC. Owner
agrees to pay the brokerage commission of ▇▇▇▇▇▇ ▇. DAY REALTY CORP. and DAKOTA
REALTY INC. pursuant to separate agreements.
54. CONSTRUCTION: GOVERNING LAW
If any of the provisions of this Lease or the application thereof to any person
or circumstances, shall, to any extent, be invalid or unenforceable, the
remainder of this Lease or the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is held invalid
or unenforceable shall not be affected thereby, and every provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
This Lease shall be governed in all respects by the laws of the State of New
York.
55. ATTORNMENT
Tenant agrees that if a superior lessor or a mortgagee shall enter into and
become possessed of the real property of which the Demised Premises form a part,
or any part or parts of such real property either through possession or
foreclosure action or proceedings, or through the issuance and delivery of a new
lease of the premises covered by the Lease to the mortgagee, then, if this Lease
is in full force and effect at such time, Tenant shall attorn to the superior
lessor or the mortgagee, as its Owner, if such superior lessor or such mortgagee
requests Tenant to do so. In such event, such lessor or mortgagee shall not be
liable to Tenant for any defaults theretofore committed by Owner, and no such
default shall give rise to any rights or offset or deduction against the rents
payable under this Lease. If any superior lessor or any mortgagee to which
Tenant agrees to attorn, as aforesaid, reasonably requests a further instrument
expressing such attornment, Tenant agrees to execute the same promptly, and if
Tenant fails to do so, Tenant hereby appoints Owner Tenant's attorney-in-fact
to execute any such instrument for and on behalf of Tenant. This appointment is
coupled with an interest and is irrevocable.
56. TENANT'S CERTIFICATE
A. At any time and from time to time upon at least ten (10) days' prior
written notice by the Owner to the Tenant, the Tenant shall without charge
execute, acknowledge and deliver to the Owner a statement in writing, in
recordable form, addressed to such party as the Owner may designate prepared by
the Owner or in form satisfactory to the Owner certifying any of the following
information as may be requested (a) that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), (b) whether the
term of the Lease has commenced and the rent and additional rent have become
payable hereunder
and, if so, the dates to which they have been paid, (c) whether or not, to the
best knowledge of the Tenant, the Owner is in default in the performance of any
of the terms of this Lease and, if so, specifying each such default of which the
Tenant may have knowledge, (d) whether the Tenant has accepted possession of
the Demised Premises, (e) whether the Tenant has made any uncollected claims
against the Owner under this Lease and, if so, the nature thereof and the
dollar amount, if any, of such claims, (f) whether there exist any offsets or
defenses against enforcement of any of the terms of this Lease upon the part of
the Tenant to be performed and, if so, specifying the same and (g) such further
information with respect to the Lease or the Demised Premises as the Owner may
reasonably request, it being intended that any such statement delivered
pursuant hereto may be relied upon by any prospective purchaser of the Building
or any part thereof or of the interest of the Owner in any part thereof, by any
mortgagee or prospective mortgagee thereof, by any lessor or prospective lessor
thereof, by any lessee or any prospective lessee thereof or by any prospective
assignee of any mortgage thereof.
B. The failure of the Tenant to execute, acknowledge and deliver to the
Owner a true statement in accordance with the provisions of Article 56 A. with
the aforesaid ten (10) day period shall constitute an acknowledgment by the
Tenant, which may be relied upon by any person who would be entitled to rely
upon any such statement that such statement as submitted by the Owner is true
and correct.
57. TENANT'S REMEDIES
With respect to any provision of this Lease whereby Owner's consent or approval
is required or as to any other matter where Owner's consent is requested, Tenant
in no event shall be entitled to make nor shall Tenant make, any claim (and
Tenant hereby waives any such claim) for money damages; nor shall Tenant claim
any money damages by way of set off, counterclaim or defense, based upon any
claim or assertion by Tenant that Owner has unreasonably withheld or
unreasonably delayed any consent or approval, but Tenant's sole remedy shall be
an action or proceeding in equity to enforce any such provision or for specific
performance, injunction or declaratory judgement. Tenant will not seek to
consolidate any claim or counterclaim in any summary proceeding brought by Owner
for possession of the premises.
59. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not, by operation of law or otherwise, assign, mortgage or
encumber this Lease, nor sublet all or any part of the Demised Premises or
permit the Demised Premises or any part thereof to be used by others, without
Owner's reasonable prior written consent in each instance which will not be
unreasonably withheld as set forth in subparagraph (d) below. The consent by
Owner to any assignment or subletting in no way shall be construed to relieve
Tenant from obtaining Owner's express written consent to any other or further
assignment or subletting.
(b) If Tenant requests Owner's consent to the assignment of this Lease or
the subletting of all of the Demised Premises, it shall submit in writing to
Owner, at the time it requests such consent the following material relating to
the proposed assignee or subtenant:
(i) the name and address;
(ii) the terms and conditions of the proposed assignment or
subletting;
(iii) the nature and character of the business to be conducted in the
Demised Premises;
(iv) an executed copy of the assignment or sublease;
(v) financial statement for the preceding two (2) years if it has
been a business for that period;
(vi) banking, financial and other credit information reasonably
sufficient to enable Owner to determine the proposed assignee's
or subtenant's financial responsibility; and
(vii) such other business or financial information reasonably
requested by Owner.
(c) Owner shall have the following options, exercisable by written notice
to Tenant within fifteen (15) business days after Tenant's aforesaid request for
Owner's consent and the furnishing of all requested information:
(i) Owner may require Tenant to execute an assignment or sublease
to Owner or to anyone designated by Owner on the same terms as
the proposed assignment or sublease without payment of any
premium therefor;
(ii) Owner may elect to terminate Tenant's Lease on the effective
date of the proposed assignment or sublease, and Owner shall
execute and deliver an instrument releasing and discharging the
Tenant from all obligations under this Lease accruing after the
effective date of such proposed assignment or sublease, and
Tenant shall vacate and surrender possession of the entire
Demised Premises in accordance with the Lease on or before said
effective date.
(d) If the Owner shall not exercise either of its foregoing options in
subparagraph (c) hereinabove within the time set forth above, its consent to the
proposed assignment or subletting of all of the Demised Premises shall not be
unreasonably withheld, provided, however, that it may withhold consent therein
if in the reasonable exercise of its judgment it determines that:
1. The financial condition and/or general reputation of the
proposed assignee or subtenant are not consistent with the
extent of the obligations undertaken by the proposed assignment
or sublease.
2. The proposed use of the Demised Premises is not appropriate for
the Building or in keeping with the character of the existing
tenancies or permitted by the Tenant's Lease.
3. The nature of the occupancy of the proposed assignee or
subtenant is not in accordance with the use provision of the
Lease or will cause excessive density of employees or traffic or
make excessive demands on the Building's services or facilities
or be an assignment or sublease to a school or employment or
replacement agency.
4. The Tenant proposes to assign or sublet to one who at the time
is a Tenant in possession of premises in the Building of which
the Demised Premises are a part. Unless Owner has similar space
available for direct lease.
(e) If Owner shall not exercise an option set forth in subparagraph (c)
above within the time limit provided therefor and if Owner shall not have
withheld its consent pursuant to subparagraph (d) above, its consent to the
proposed assignment or subletting shall not be withheld provided, however, that
each of the following conditions first are complied with:
(i) Tenant then shall not be in default under this Lease or Tenant
shall have cured such default;
(ii) The assignee shall execute an agreement, in form reasonably
satisfactory to the Owner, whereby such proposed assignee
assumes performance of Tenant's obligations under this Lease and
shall become jointly and severally liable with the Tenant for
the performance thereof. The subletting Agreement shall provide
that it is expressly subject to the terms and provisions of the
Lease.
(iii) A duplicate original of the instrument of assignment and
assumption agreement or sublease duly executed by the
appropriate party, shall be delivered to the Owner before the
assignee or subtenant shall be let into possession of the
Demised Premises.
(iv) Tenant shall pay any expense, including, but not limited to,
attorney's fees and fees for financial investigation incurred in
connection with the review and/or preparation and/or execution
of any documents submitted to Owner relating to the proposed
assignment or subletting including preparation of the consent.
This provision shall not apply if owner elects to terminate the
Lease pursuant to subparagraph (c) herein.
(f) If the Owner shall give its consent to any assignment of this Lease or
to any sublease, Tenant, in consideration therefor, shall pay to Owner, as
additional rent:
(i) In the case of an assignment, an amount equal to 75% of all sums
and other considerations paid to Tenant by the assignee for or
by reason of such assignment (including, but not limited to,
sums paid for the sale of Tenant's fixtures, leasehold
improvements, equipment, furniture furnishings or other personal
property, less, in the case of a sale thereof, the then net
undepreciated cost thereof determined on the basis of Tenant's
Federal income tax returns) less brokerage commissions incurred
in such transaction; and
(ii) In the case of a sublease 75% of any rents, additional charges
or other consideration payable under the sublease and related
agreements to Tenant by the subtenant which is in excess of the
fixed annual rent and additional rent accruing during the term
of the sublease pursuant to the terms of this Lease (including,
but not limited to, sums paid for the sale or rental of Tenant's
fixtures, leasehold improvements, equipment, furniture or other
personal property, less, in the case of the sale thereof, the
then undepreciated cost thereof determined on the basis of
Tenant's Federal income tax returns) less brokerage commissions
incurred in such transaction.
The sums payable under this subparagraph (f) shall be paid by Tenant to Owner as
and when paid by the assignee or subtenant to Tenant.
(g) Each of the foregoing provisions and conditions shall apply to each and
every further assignment or subletting. An assignment of Lease or a subletting
as above provided shall not discharge or release from liability under the Lease
the Tenant or any other person, firm or corporation which previously shall have
assumed Tenant's obligations hereunder, such liability to remain and continue
for the balance of the term and any option to renew contained in the Lease with
the same force and effect as though no assignment had been effected.
(h) Any transfer or issuance of shares which shall cause in the aggregate
fifty percent (50%) or more of the stock of Tenant or any assignee to be owned
by any party other than those parties who were Tenant's shareholders or
assignee's shareholders on the date of execution of this Lease to the effective
date of the assignment shall be deemed an assignment of this Lease and shall
require Owner's prior written consent in accordance with this Article 59.
(i) In the event that Owner exercises either of its options under
subparagraph (c) above, Owner shall have the absolute right to, and in no way
shall be liable to Tenant if it shall, lease or further sublease the Demised
Premises to Tenant's prospective assignee or subtenant, as the case may be.
(j) If Owner does not exercise its option and also withholds its consent to
the proposed assignment or subletting and it is established by a court or body
having final jurisdiction thereover that Owner has been unreasonable, the only
effect of such finding shall be that Owner shall be deemed to have given its
consent; but Owner shall not be liable to Tenant in any respect for money or
compensatory damages by reason of withholding its consent. In the case of a
claim by Tenant that Owner unreasonably withheld or delayed a request for
consent to any sublease or assignment, Owner and Tenant hereby agree that the
following provisions shall apply: (i) upon the written request of Tenant, the
dispute shall be submitted to the American Arbitration Association (the
"Association") for disposition pursuant to the "Expedited Procedures" of the
Association; (ii) each party shall make any requisite appointments of an
arbitrator within five (5) days of submission of such dispute and the
arbitrators shall meet to decide such dispute within three (3) business days
following their appointment (it being agreed that if either party shall fail to
so designate such an appointment within such five (5) day period then the
dispute shall be resolved by the single arbitrator appointed by the party which
complied with its obligations hereunder in timely fashion); (iii) the decision
of the Association shall be final, and all actions necessary to implement the
decision of the Association shall be undertaken as soon as possible, but in no
event later than ten (10) business days after the rendering of such decision;
(iv) judgment upon the decision or any award rendered may be entered in any
court having jurisdiction thereof; and (v) all fees payable to the Association
of services rendered in connection with the resolution of the dispute shall be
paid for by the party suffering the adverse decision of the Association. For
purposes of this Article, the phrase "Expedited Procedures of the Association"
shall mean those procedures set forth in paragraphs 54 through 58 of that
certain booklet published by the Association and titled "Commercial Arbitration
Rules", as amended and in effect March 1, 1986.
(k) For a minimum of ninety (90) days in each instance of sublease, in the
event that Tenant or any assignee or sublessee desires to assign or sublet, it
hereby designates the managing Agent as Tenant's sole and exclusive Agent to
effect such assignment or subletting and agrees to pay said managing Agent upon
the consent to assignment or sublease a commission computed in accordance with
the commission rates then in effect. Tenant acknowledges that it is aware that
the managing Agent represents the Owner and may also act with respect to other
competing space in the building and Tenant waives any right to make claim for
conflict of interest or for other damages. The exclusive set forth in this
Article 59(k) shall continue for 90 days and if within 270 days after the
expiration of the aforesaid 90 day period there is an assignment or sublease to
a party introduced by the managing Agent within the exclusive 90 day period,
then the managing Agent shall be entitled to a commission in accordance with its
usual rates. In the event that Tenant assigns or subleases without advertising
(except in trade and professional journals) and without utilizing the services
of a broker, finder or consultant, then the provisions of this Article 59(k)
shall not apply.
(m) No action or consent by Owner to listing of names on the Building
directory nor acceptance of rent from any party other than Tenant shall be
deemed a consent to any assignment or sublease of the Demised Premises nor a
waiver of any of the provisions hereof.
(n) Anything herein to the contrary notwithstanding, conversion of Tenant
or any successor tenant to a limited liability partnership or company during the
term of this lease constitutes an assignment of the lease which requires the
Owner's consent in its sole discretion.
60. END OF TERM
A. Tenant hereby agrees to indemnify and save Owner harmless against all
costs, expenses, claims, losses or liability resulting from delay by Tenant in
surrendering the Demised Premises upon the expiration or earlier termination of
this Lease, (Tenant's Holdover) including without limitation (i) any payment or
rent concession which Landlord may be required to make to any tenant obtained by
Landlord for all or any part of the Premises in order to induce such tenant not
to terminate its lease by reason of the holding-over by Tenant and (ii) the loss
of the benefit of the bargain if any such tenant shall terminate its lease by
reason of the holding-over by Tenant and (iii) any claims made by any succeeding
tenant founded on such delay. Such indemnity shall survive the expiration or
earlier termination of this Lease.
B. Tenant agrees that losses to Owner resulting from Tenant's Holdover will
be very substantial, exceed the amount of Fixed Annual Base Rent as adjusted
and additional rent payable hereunder and be difficult of accurate measurement.
Therefore, if Tenant shall fail to vacate and surrender the Demised Premises as
required hereunder, it shall be deemed a holdover Tenant on a month-to-month
basis at a fixed monthly rent equal to one and one half (1-1/2) times the
monthly rate of all Fixed Annual Base Rent as adjusted and additional rent
payable for the last month of the term hereof. The collection of the aforesaid
rent shall not act to limit Owner's rights to institute summary proceedings to
obtain possession or pursuant to this Article 60 or in the Lease or at law, but
any such rent collected will be non-refundable and shall be applied against any
such damages.
61. EXHIBIT
Tenant acknowledges and agrees that the diagram of the Demised Premises annexed
hereto as Exhibit A has not been drawn to scale, is an approximation of the
actual size and location of the space involved and is not meant to be a
representation of the actual size and location of the space involved. Tenant has
had the opportunity to and has made such inspection of the leased premises as
Tenant
deems necessary.
62. HEAD NOTES
The Article headings herein are only for convenience and are in no way to be
construed as a part of the agreement or as a limitation on the scope of any
provision thereof.
63. RULE OF INTERPRETATION
For purposes of this Lease, whenever the words "include", "includes", or
"including" are used, they shall be deemed to be followed by the words "without
limitation" and, whenever the circumstances or the context requires, the
singular shall be construed as the plural, the masculine shall be construed as
the feminine and/or the neuter and vice versa. This Lease and any provisions
therein shall be interpreted and enforced without the aid of any presumption,
canon, custom or rule of law requiring or suggesting construction against the
party drafting or causing the drafting of the provision in question.
65. ELECTRICITY
If the Owner furnished electricity to the Tenant based on the method of
including the use thereof within the rent, then and in that event, the Tenant
agrees to have the rent reserved herein increased to compensate the Owner for
supplying the current as an additional service as hereinafter provided. The
Owner will furnish electricity to the Tenant through presently installed
electricity facilities for Tenant's reasonable use of such lighting, electrical
appliances and equipment as the Owner may permit to be installed in the
premises. Owner represents there is adequate electricity for normal office use.
The Tenant agrees that an electrical consultant selected by the Owner, may make
a survey of the electrical lighting and power used to determined the average
monthly electric current consumption in the Demised Premises. The findings of
the consultant as to the proper rent increase based on such average monthly
electric consumption shall be conclusive and binding upon the parties (except as
set forth below) and the Tenant shall pay the same additional rent, monthly on
the first day of each month from the commencement of the demised term. In the
event Tenant disagrees with the result of Owner's electrical survey, Tenant
shall nevertheless pay the increase as billed until the dispute has been
resolved. If the amount is subsequently reduced as hereinafter set forth, Tenant
shall be allowed a credit against rent for any overpayment. Tenant's electrical
consultant (paid by Tenant) and Owner's electrical consultant (paid by Owner)
shall attempt to resolve the dispute. In the event they are unable to do so,
they shall select a third electrical consultant (to be paid one half by Owner
and one half by Tenant) whose determination shall be binding on both parties. If
the Owner's electric rates and/or charges be increased or decreased, then the
aforesaid additional rent shall be increased or decreased in the same percentage
but in no event below the amount set forth below. Tenant shall make no
alterations or additions to the electric equipment, and/or appliances without
first obtaining written consent from the Owner in each instance. This provision
is to prevent the Tenant from possible overloading of the Building's electrical
distribution facilities. The Owner, his Agent, or consultant, is given the right
to make surveys from time to time in the Tenant's premises covering the
electrical equipment and fixtures and use of current. Owner shall not in any way
be liable or responsible to Tenant for any loss or damage or expense which
Tenant may sustain or incur if either the quality or character of electric
service is changed or is no longer available or suitable for Tenant's
requirements. Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing leaders to the Building, or
the risers or wiring installation. Owner shall install at Tenant's expense any
rise or risers to supply Tenant's electrical requirements, upon written request
of the Tenant, if, in Owner's sole judgement, the same are necessary and will
not cause or create dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expense or interfere with or disturb other
Tenants or occupants. In addition to the installation of such riser or risers
Owner will also, at the sole cost and expense of the Tenant, install all other
equipment proper and necessary in connection therewith subject to the aforesaid
terms and conditions. The Owner reserves the right to terminate the furnishing
of electricity at any time, upon thirty (30) days written notice to Tenant, in
which event, the Tenant may make application directly to the utility company
servicing the Building for the Tenant's entire separate supply. Such electric
energy may be furnished to Tenant by means of the then existing Building system
feeders, risers and wiring to the extent that the same are available, suitable
and safe for such purposes. All meters and additional panel boards, feeders,
risers, wiring and other conductors and equipment which may be required to
obtain electric energy directly from such public utility company shall be
installed by Owner at Tenant's expense. The Owner, upon the expiration of the
aforesaid thirty (30) days written notice to the Tenant may discontinue
furnishing the electric current, in which latter event, the Tenant's liability
for additional rent provided for in this Article shall terminate as of the date
of discontinuance of the supply of electric current but this lease shall
otherwise remain in full force and effect.
Tenant agrees that pending a survey as above provided that its base minimum
rental shall be increased by the amount of $1,106.25 per month payable on the
first day of each and every month, and, for and in consideration of such
increase in the rental, the Owner is to supply the Tenant with free
electricity.
66. RENT CREDIT
A. Notwithstanding anything herein to the contrary, and provided that Tenant is
not in default under the Lease, Owner and Tenant agree that Tenant shall have no
obligation to pay monthly installments of annual rental (the monthly rent) as
set forth in the introduction to this Lease for a two month period beginning on
the first through second month of the lease term for a rent credit totaling
$37,500.00.
B. As used in this clause, "Monthly Rent" does not include any other rent or
additional rental payment due under this lease, such as, but not limited to,
operating expenses, real estate tax payments, escalations and utility payments.
67. OWNER'S WORK
Tenant understands and agrees that no materials whatever are to be furnished by
Landlord and no work whatever is to be performed by Landlord in connection with
the demised premises or any part thereof, except as specifically set forth in
this Lease, and Tenant agrees to accept the demised premises in their condition
existing on the commencement date of the term of this lease. All Tenant work
shall be subject to the consent of Owner, upon Owner's consent all Tenant work
shall be performed in accordance with Exhibit "A".
68. MOVE-IN
Tenant will not be charged for up to eight (8) hours of overtime for freight
elevator time during their move-in to the premises.
69. CONDITION
Owner will supply Tenant with an ACP-5 certificate in the event Tenant
undertakes construction.
70. WINDOWS
Owner will, at Owner's cost, replace all windows with new thermopane tilt and
turn within the first four (4) months of the lease term.