Exhibit 10.39
STANDARD FORM OF OFFICE LEASE
(The Real Estate Board of New York, Inc. 3/1/86)
AGREEMENT OF LEASE, made as of this 23rd day of May, 2005, between
386 PAS PARTNERS, L.L.C., party of the first part, hereinafter referred to as
Owner, and SENDTEC, INC., party of the second part, hereinafter referred to as
Tenant.
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires
from Owner
PORTION OF 7TH FLOOR COMPRISING 2,500 SQUARE FEET, AS SHOWN ON EXHIBIT A
ATTACHED HERETO, IN THE BUILDING KNOWN AS ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ THE BOROUGH
OF MANHATTAN, CITY OF NEW YORK,
FOR THE TERM BEGINNING UPON SUBSTANTIAL COMPLETION OF OWNER'S WORK DESCRIBED IN
ARTICLE 46 HEREOF AND TO END ON THE 31ST DAY OF DECEMBER, 2009, BOTH DATES
INCLUSIVE (OR UNTIL SUCH TERM SHALL SOONER CEASE AND EXPIRE AS HEREINAFTER
PROVIDED),
at a rental rate as set forth in Article 38 hereof, which Tenant agrees to pay
in lawful money of the United States which shall be legal tender in payment of
all debts and dues, public and private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said term, at the
office of Owner or such other place as Owner may designate, without any set off
or deduction whatsoever, except that Tenant shall pay the first monthly
installment 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, distributes,
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 and
executive offices and for no other purpose.
TENANT ALTERATIONS:
3. Tenant shall make no changes of any nature in or to the demised
premises without Owner's prior written consent. Subject to the prior written
consent of Owner, and to the provisions of this Article, Tenant, at Tenant's
expense, may make alterations,
installations, additions or improvements which are nonstructural and which do
not affect utility services or plumbing and electrical lines, in or to the
interior of the demised premises by using contractors or mechanics first
approved 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 subcontractors to carry
such ▇▇▇▇▇▇▇'▇ compensation, general liability, personal and property damage
insurance as Owner may require. If any mechanics' 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 filing the bond required by law.
All fixtures and all paneling, partitions, railings and like installations,
installed in the premises at any time, either by Tenant or by Owner in Tenant's
behalf, shall, upon installation, become the property of Owner and shall remain
upon and be surrendered with the demised premises unless Owner, by notice to
Tenant no later than twenty days prior to the date fixed as the termination of
this lease, elects to relinquish Owner's right thereto and to have them removed
by Tenant, in which event the same shall be removed from the premises by Tenant
prior to the expiration of the lease, at Tenant's expense; provided, however,
that Tenant shall not be obligated to remove any walls or permanent partitions
constructed in the demised premises. Nothing in this Article shall be construed
to give Owner title to, or to prevent Tenant's removal of, trade fixtures,
moveable office furniture and equipment, but upon removal of any such items from
the premises or upon removal of other installations as may be required by Owner,
Tenant shall immediately and at its expense, repair and restore the premises to
the condition existing prior to installation and repair any damage to the
demised premises or the building due to such removal. All property permitted or
required to be removed, by Tenant at the end of the term remaining in the
premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the 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
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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 its demised premises, and the public portions of the
building interior, the building plumbing, electrical, heating and ventilating
systems (to the extent such systems presently exist) serving the demised
premises and the air conditioning compressor presently serving the demised
premises and certain other premises. Tenant agrees to give prompt written notice
of any defective condition in the premises for which Owner may be responsible
hereunder. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or others making repairs, alterations,
additions or improvements in or to any portion of the building or the demised
premises or in and to the fixtures, appurtenances or equipment thereof. It is
specifically agreed that Tenant shall not be entitled to any setoff or reduction
of rent by reason of any failure of Owner to comply with the covenants of this
or any other Article of this Lease. Tenant agrees that Tenant's sole remedy at
law in such instance will be by way of an action for damages for breach of
contract. The provisions of this Article 4 shall not apply in the case of fire
or other casualty which are dealt with in Article 9 hereof.
WINDOW CLEANING:
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 premises or the building (including
the use permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of use of the
demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant may, after securing Owner to Owner's satisfaction against all damages,
interest, penalties and expenses, including, but not limited to, reasonable
attorney's fees, by cash deposit or by surety bond in an amount and
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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 premises in a manner which will increase the insurance
rate for the building or any property located therein over that in effect prior
to the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this Article and if by reason
of such failure the fire insurance rate shall, at the beginning of this lease or
at any time thereafter; be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. In any action or proceeding wherein Owner and
Tenant are parties, a schedule or "make-up" of rate for the building or demised
premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to said premises shall be conclusive evidence of
the facts therein stated and of several items and charges in the fire insurance
rates then applicable to said premises. Tenants 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 positions of all safes, business machines and
mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Owner's judgment, to
absorb and prevent vibration, noise and annoyance.
SUBORDINATION:
7. This lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such leases or the
real property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgage, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request. Owner
represents that
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there are no ground leases affecting the real property of which the demised
premises are a part.
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 therefore nor abatement or diminution of rent nor
shall the same release Tenant from its obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against and from all
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable
attorneys' fees, paid, suffered or incurred as a result of any breach by Tenant,
Tenant's agents, contractors, employees, invitees, or licensees, of any covenant
or condition of this lease, or the carelessness, negligence or improper conduct
of the Tenant, Tenant's agents, contractors, employees, invitees or licensees.
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
sub-tenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing, such approval not to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice hereof 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, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the premises shall have been
repaired and restored by Owner, 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
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decide to demolish it or to renovate or rebuild it, then, in any of such events,
Owner may elect to terminate this lease by written notice to Tenant, given
within 60 days after such fire or casualty, specifying a date for the expiration
of the lease, which date shall not be more than 60 days after the giving of such
notice. In addition, if the demised premises are rendered wholly unusable and
Owner determines that the demised premises cannot reasonably be repaired and
restored to substantially the same condition as the demised premises were in
immediately prior to such fire or casualty within 180 days after such fire or
casualty, Tenant may elect to terminate this lease by written notice to Owner,
given within 60 days after such fire or casualty, specifying a date for the
expiration of the lease, which date shall not be more than 10 days after the
giving of such notice. Upon the date specified in any such notice of termination
from Owner or Tenant, the term of this lease shall expire as fully and
completely as if such date were the date set forth above for the termination of
this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Landlord's rights and remedies against Tenant
under the lease provisions in effect prior to such termination, and any rent
owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Owner or Tenant shall serve a termination notice as provided for
herein, Owner shall make the repairs and restorations under the conditions of
(b) and (c) hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and movable equipment, furniture, and
other property. Tenant's liability for rent shall resume five (5) days after
written notice from Owner that the 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, 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 against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. 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.
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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.
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 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 than Tenant, Owner may, after default
by Tenant, collect rent from the assignee, under-tenant or occupant, and apply
the net amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, under-tenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. The consent by Owner to an assignment or
underletting shall not in any wise be construed to relieve Tenant from obtaining
the express consent in writing of Owner to any further assignment or
underletting.
ELECTRIC CURRENT:
12. Rates and conditions in respect to submetering or rent inclusion,
as the case may be, are to be added in the 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 upon reasonable notice to Tenant, to examine the same and
to make such repairs, replacements and improvements or additions and alterations
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
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necessary materials and equipment into said premises without the same
constituting an eviction, nor shall the Tenant be entitled to any abatement of
rent while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof Owner shall
have the right to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the building, and
during the last six months of the term for the purpose of showing the same to
prospective tenants. If Tenant is not present to open and permit an entry into
the 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 premises and accepts them
as is, subject to the riders annexed hereto with respect to Owner's work, if
any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be canceled 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
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the debtor; or (2) the making by Tenant of an assignment or any other
arrangement for the benefit of creditors under any state statute; or (3) the
appointment of a receiver, trustee, custodian or similar officer for Tenant or
for all or a substantial portion of Tenant's assets. Neither Tenant nor any
person claiming through or under Tenant, or by reason of any statute or order of
court, shall thereafter be entitled to possession of the premises demised but
shall forthwith quit and surrender the premises. If this lease shall be assigned
in accordance with its terms, the provisions of this Article 16 shall be
applicable only to the party then owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent and additional rent reserved hereunder for the
unexpired portion of the term demised and the fair and reasonable rental value
of the demised premises (including the additional rent) for the same period
(conclusively presuming the additional rent for each year thereof to be the same
as was payable for the year immediately preceding the termination of this
lease). In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such relating
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
DEFAULT:
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, becomes 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 premises within fifteen (15) days after the commencement of the term of this
lease; or if Tenant shall be in default under any other lease for space in the
building, then, in any one or more of such events, upon Owner serving a written
five (5) days notice upon Tenant specifying the nature of said default and upon
the expiration of said five (5) days, if Tenant shall have failed to comply with
or remedy such default, or if
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the said default or omission complained of shall be of a nature that the same
cannot be completely cured or remedied within said five (5) day period, and if
Tenant shall not have diligently commenced curing such default within said five
(5) day period, or shall not thereafter with reasonable diligence and in good
faith, proceed to remedy or cure such default, then Owner may serve a written
three (3) days' notice of cancellation of this lease upon Tenant, and upon the
expiration of said three (3) days this lease and the term thereunder shall end
and expire as fully and completely as if the expiration of such three (3) day
period were the day herein definitely fixed for the end and expiration of this
lease and the term thereof and Tenant shall then quit and surrender the demised
premises to Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given,
and the term shall expire as aforesaid, or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required,
then and in any of such events, Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the date fixed as the commencement
of any renewal or extension of this lease, Owner may cancel and terminate such
renewal or extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the rent and additional rent
shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, (b) Owner may (but shall not be obligated to)
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 otherwise have constituted the balance of
the term of this lease and may grant concessions or free rent or charge a higher
rental than that in this lease, and/or (c) Tenant or the legal representatives
of Tenant shall also pay Owner as liquidated damages for the failure of Tenant
to observe and perform said Tenant's covenants herein contained, any deficiency
between the rent and additional rent hereby reserved and/or covenanted to be
paid and the net amount, if any, of the rent and additional rent 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, attorneys' fees, brokerage, advertising and alteration costs and for
keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated
-10-
damages shall be paid in monthly installments by Tenant on the rent day
specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for
re-rental, may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable or 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 and additional rent thereof
under such re-letting, and in no event shall Tenant be entitled to receive any
excess, if any, of such net rents collected over the sums payable by Tenant to
Owner hereunder. In the event of a breach or threatened breach by Tenant of any
of the covenants or provisions hereof, Owner shall have the right of injunction
and the right to invoke any remedy allowed at law or in equity as if re-entry,
summary proceedings and other remedies were not herein provided for. Mention in
this lease of any particular remedy, shall not preclude Owner from any other
remedy, in law or in equity. Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed for any cause, or in the event of Owner
obtaining possession of demised premises, by reason of the violation by Tenant
of any of the covenants and conditions of this lease, or otherwise.
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, 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
attorney's fees, in instituting, prosecuting or defending any 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 five (5) days of rendition of any ▇▇▇▇
or statement to Tenant thereof. 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, upon reasonable notice to
Tenant, without the same constituting an eviction and without incurring
liability to Tenant therefore, to change the arrangement and/or location of
public entrances, passageways, doors, doorways, corridors, elevators, stairs,
toilets or other public parts of the building
-11-
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.
Owner reserves the right to change the address of the building and/or
to place signs above the entrances to the building at any time and from time to
time. Neither this Lease nor any use by Tenant shall give Tenant any easement or
other right in or to the use of any door or any passage or any concourse or any
plaza connecting the building with any subway or any other building or to any
public conveniences, or to any particular entrance ways to public streets, and
the use of such doors, passages, concourses, plazas, entrance ways and
conveniences may without notice to Tenant, be regulated or discontinued at any
time by Landlord.
NO REPRESENTATIONS BY OWNER:
21. Neither Owner nor Owner's agents have made any representations or
promises with respect to the physical condition of the building, the land upon
which it is erected or the demised premises, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the 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 executor agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
END OF TERM:
22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. 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,
-12-
falls on Sunday, this lease shall expire at noon on the preceding Saturday,
unless it be a legal holiday, in which case it shall expire at noon on the
preceding business day.
QUIET ENJOYMENT:
23. Owner covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 30 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
FAILURE TO GIVE POSSESSION:
24. If Owner is unable to give possession of the demised premises on
the date of the commencement of the term hereof, because of the holding-over or
retention of possession of any tenant, undertenant or occupants or if the
demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or for any other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. 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 with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover
-13-
the balance of such rent or pursue any other remedy provided in this lease. No
act or thing done by Owner or Owner's agents during the term hereby demised
shall be deemed an acceptance of a surrender of said premises, and no agreement
to accept such surrender shall be valid unless in writing signed by Owner. No
employee of Owner or Owner's agent shall have any power to accept the keys of
said premises prior to the termination of the lease and the delivery of keys to
any such agent or employee shall not operate as a termination of the lease or a
surrender of the premises.
WAIVER OF TRIAL BY JURY:
26. It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of said premises,
and any emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Owner commences any summary proceeding for
possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a counterclaim
under Article 4.
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 the 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 expressed or implied to be supplied or
is unable to make, or is delayed in making, any repair, additions, alterations
or decorations or is unable to supply, or is delayed in supplying, any equipment
or fixtures 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 in connection with a national emergency 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 of supply and demand which have
been or are affected by war or other emergency.
BILLS AND NOTICES:
28. Except as otherwise provided in this lease, 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 addressed to Tenant at
the building of which the demised premises form a part or at the last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such ▇▇▇▇ 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
-14-
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
SERVICES PROVIDED BY OWNER:
29. As long as Tenant is not in default under any of the covenants of
this lease, Owner shall provide: (a) necessary elevator facilities on business
days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 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 am. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m.; (c) water for ordinary lavatory purposes, but
if Tenant uses or consumes water for any other purposes or in unusual quantities
(of which fact Owner shall be the sole judge), Owner may install a water meter
at Tenant's expense which Tenant shall thereafter maintain at Tenant's expense
in good working order and repair, to register such water consumption, and Tenant
shall pay for water consumed as shown on said meter as additional rent as and
when bills are rendered; (d) cleaning service for the demised premises on
business days at Owner's expense provided that the same are kept in order by
Tenant. If, however, said premises are to be kept clean by Tenant, it shall be
done at Tenant's sole expense, in a manner satisfactory to Owner and no one
other than persons approved by Owner shall be permitted to enter said premises
or the building of which they are a part for such purpose. Tenant shall pay
Owner the cost of removal of any of Tenant's refuse and rubbish from the
building; (e) If the demised premises is serviced by Owner's air
conditioning/cooling and ventilating system, air conditioning/cooling will be
furnished to tenant from May 15th through September 30th on business days
(Mondays through Fridays, holidays excepted) from 8:00 a.m. to 6:00 p.m., and
ventilation will be furnished on business days during the aforesaid hours except
when air conditioning/cooling is being furnished as aforesaid. If Tenant
requires air conditioning/cooling or ventilation for more extended hours or on
Saturdays, Sundays or on holidays, as defined under Owner's contract with
Operating Engineers Local 94-94A, Owner will furnish the same, at Tenant's
expense, based on a charge of $350 for every hour (or portion of an hour) that
the same is furnished to the demised premises, provided that Tenant requests the
same at least twelve (12) hours in advance; (f) Owner reserves the right to stop
services of the heating, elevators, plumbing, air-conditioning, power systems or
cleaning or other services, if any, when necessary by reason of accident or for
repairs, alterations, replacements or improvements necessary or desirable in the
judgment of Owner for as long as may be reasonably required by reason thereof.
If the building of which the demised premises are a part supplies
manually-operated elevator service, Owner at any time may substitute
automatic-control elevator service and upon ten days' written notice to Tenant,
proceed with alterations necessary therefor without in any wise affecting this
lease or the obligation of Tenant hereunder. The same shall be done with a
minimum of inconvenience to Tenant and Owner shall pursue the alteration with
due diligence. Tenant shall have access to the demised premises twenty-four
hours per day, seven days per week. Anything to the contrary notwithstanding,
Tenant shall control the air conditioning servicing the demised premises
twenty-four hours per day, seven days per week.
-15-
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 this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at 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
(except such portion thereof as is covered by specific hours in Article 29
hereof), Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
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, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form a
part from injury or damage and to support the same by proper foundations without
any claim for damages or indemnity against Owner, or diminution or abatement of
rent.
RULES AND REGULATIONS:
33. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations and such other and further reasonable Rules and Regulations as Owner
or Owner's agents may from time to time adopt. Notice of any additional rules or
regulations shall be given in such manner as Owner may elect. In case Tenant
disputes the reasonableness of any additional Rule or Regulation hereafter made
or adopted by Owner or Owner's agents,
-16-
the parties hereto agree to submit the question of the reasonableness of such
Rule or Regulation for decision to the New York office of the American
Arbitration Association, whose determination shall be final and conclusive upon
the parties hereto. The right to dispute the reasonableness of any additional
Rule or Regulation upon Tenant's part shall be deemed waived unless the same
shall be asserted by service of a notice in writing upon Owner within ten (10)
days after the giving of notice thereof. Nothing contained in this lease 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 $11,770.83 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,
upon notice to Tenant, may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any rent and
additional rent or any other sum as to which Tenant is in default or for any sum
which Owner may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this lease,
including but not limited to, any damages or deficiency in the re-letting of the
premises, whether such damages or deficiency accrued before or after summary
proceedings or other re-entry by Owner. In the event that Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this lease, the security shall be returned to Tenant after the date fixed as the
end of the Lease and after delivery of entire possession of the demised premises
to Owner. In the event of a sale of the land and building or leasing of the
building, of which the demised premises form a part, Owner shall have the right
to transfer the security to the vendee or lessee and Owner shall thereupon be
released by Tenant from all liability for the return of such security; and
Tenant agrees to look to the new Owner solely for the return of said security,
and it is agreed that the provisions hereof shall apply to every transfer or
assignment made of the security to a new Owner. Tenant further covenants that it
will not assign or encumber or attempt to assign or encumber the monies
deposited herein as security and that neither Owner nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
ESTOPPEL CERTIFICATE:
35. Tenant, at any time, and from time to time, upon at least 10
days' prior notice by Owner, shall execute, acknowledge and deliver to Owner,
and/or to any other person, firm or corporation specified by Owner, a statement
on a form prepared by Owner 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,
-17-
and stating whether or not there exists any default by Owner under this Lease,
and, if so, specifying each such default Tenant's failure to promptly deliver
such certificate shall be conclusive upon Tenant: (a) that this lease is in full
force and effect, without modification except as may be represented by Owner;
and (b) that there are 110 uncured defaults in Owner's performance and Tenant
has no right of offset, counterclaim, defenses or deduction against basic rent
or additional rent due hereunder or against Owner. Tenant's failure to comply
with the requirements of this Article 35 shall constitute a material default
under this Lease.
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.
SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
Witness for Owner:
/s/------------------------- 386 PAS PARTNERS, LLC
By: 386 PAS PARTNERS, LLC
its member
By: MONDAY PROPERTIES GROUP, LLC
its member
By: /s/-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
SENDTEC, INC.
Witness for Owner:
----------------------------
By: /s/-----------------------------
Name: -------------------------
Title: -------------------------
PARK SOUTH CONTROL, L.L.C.
Witness for Owner:
---------------------------- By: /s/-----------------------------
Name: -------------------------
Title: -------------------------
SENDTEC, INC.
Witness for Owner:
/s/-------------------------
By: /s/-----------------------------
Name: /s/----------------------
Title: -------------------------
-18-
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner, using elevators and passageways designated for such delivery
by Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said premises clean and free from ice, snow, dirt and
rubbish.
2. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed
and no 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 who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep 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 buildings by reason of noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any animals 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 any Tenant on any part of the
outside of the demised premises or the building or on the inside of the demised
premise if the same is visible from the outside of the premises without the
prior written consent of Owner, except that the name of Tenant may appear on the
entrance door of the premises. In the event of the violation of the foregoing by
any Tenant, Owner may remove same without any liability, and may charge the
expense incurred by such removal to Tenant or Tenants violating this rule.
Interior signs on doors and directory tablet shall be inscribed, painted or
affixed for each Tenant by Owner at the expense of such Tenant, and shall be of
a size, color and style acceptable to Owner.
6. No Tenant shall ▇▇▇▇, 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
-19-
direct. No Tenant shall lay linoleum, or other similar floor covering, so that
the same shall come in direct contact with the floor of the demised premises,
and, if linoleum or other similar floor covering is desired to be used, 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 any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky
matter of any description shall be delivered to and removed from the premises
only on the freight elevators and through the service entrances and corridors,
and only during hours and in a manner approved by Owner. Owner reserves the
right to inspect all freight to be brought into the building and to exclude from
the building all freight which violates any of these Rules and Regulations of
the lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited
and each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the
hours of 6 p.m. and 8 a.m., and at all hours on Sundays, and legal holidays, all
persons who do not present a pass to the building, signed by Owner. Owner will
furnish passes to persons for whom any Tenant requests same in writing. Each
Tenant shall be responsible for all persons for whom he requests such pass and
shall be liable to Owner for all acts of such persons.
11. Owner shall have the right to prohibit any advertising by any
Tenant which in Owner's opinion, tends to impair the reputation of the building
or its desirability as a building for offices, and upon written notice from
Owner, Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on
the demised premises, any inflammable, combustible or explosive 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 the Owner with respect to such services.
If Tenant requires air conditioning or ventilation after the usual hours, Tenant
shall give notice in writing to the building superintendent prior to 3:00 p.m.,
in the case of services required on week days, and prior to 3:00 p.m. on the day
prior in the case of after hours service required on weekends or on holidays.
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
-20-
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.
-21-
RIDER ATTACHED TO AND FORMING PART OF
LEASE DATED MAY , 2005 BETWEEN
386 PAS PARTNERS, L.L.C., AS OWNER AND
SENDTEC, INC., AS TENANT
Premises: Portion of 7th Floor, comprising 2,500 rentable square feet, at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
1. In the event that there are any discrepancies, duplications or
contradictions between the provisions contained in this Rider and the printed
lease form, it is understood and agreed that the provisions of this Rider shall
be controlling and supersede anything similar or to the contrary contained in
the printed lease form
2. The Tenant shall pay annual base rent as follows:
For the period from the commencement of the term of this lease
through May 31, 2006, Sixty-Two Thousand Five Hundred and 00/100 ($62,500.00)
Dollars per annum ($5,208.33 per month) plus electricity and additional rent as
set forth herein. Anything to the contrary notwithstanding, as a concession to
Tenant, provided that Tenant is not in default under any of the terms of this
lease, Tenant shall not be required to pay base rent during the first ninety
(90) days of the term of this lease. The date after such period shall constitute
the rent commencement date.
For the period June 1, 2006 through May 31, 2007, Sixty-Four Thousand
Sixty Two and 25/100 ($64,062.25) Dollars per annum ($5,338.54 per month) plus
electricity and additional rent as set forth herein.
For the period June 1, 2007 through May 31, 2008, Sixty-Five Thousand
Six Hundred Sixty-Three and 80/100 ($65,663.80) Dollars per annum ($5,471.98 per
month) plus electricity and additional rent as set forth herein.
For the period June 1, 2008 through May 31, 2009, Sixty-Seven
Thousand Three Hundred Five and 40/100 ($67,305.40) Dollars per annum ($5,608.78
per month) plus electricity and additional rent as set forth herein.
For the period June 1, 2009 through December 31, 2009, Sixty-Eight
Thousand Nine Hundred Eighty-Eight and 04/100 ($68,988.04) Dollars per annum
($5,749.00 per month) plus electricity and additional rent as set forth herein.
Tenant shall pay such base rent, additional rent as provided in
Article 39, and electricity charges as provided in Article 40 promptly when due,
without notice or demand therefore without any set-off, offset, credit,
abatement or deduction of any kind whatsoever.
No payment by Tenant or receipt or acceptance by Owner of a lesser
amount than the correct rental shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Owner may accept such check or payment without prejudice to Owner's right to
recover the balance or pursue any other remedy in this Lease or at law provided.
Any apportionments or proportions of rental to be made under this
Lease shall be computed on the basis of a 360-day year consisting of twelve (12)
months of thirty (30) days each.
3. Tenant agrees to pay as additional rent annually during the term
of this lease 1.25% of any increase in the Real Estate Taxes (as such term is
hereinafter defined) above those for the fiscal year 2005/2006. Such additional
rent shall be paid when the tax becomes fixed and within ten (10) days after
demand therefor by the Owner and shall be collectable as additional rent. For
the final year of the lease term, the Tenant shall be obligated to pay only a
pro rata share of such taxes. Tax bills (except as hereinafter provided) shall
be conclusive evidence of the amount of such taxes and shall be used for the
calculations of the amounts to be paid by the Tenant.
The term "Real Estate Taxes" shall mean all the real estate taxes and
assessments, special or otherwise, levied, assessed or imposed by Federal, State
or Local Governments against or upon the building of which the demised premises
form a part and the land upon which it is erected. If due to a future change in
the method of taxation, any franchise, income, profit or other tax, or other
payment, shall be levied against Owner in whole or in part in substitution for
or in lieu of any tax which would otherwise constitute a Real Estate Tax, such
franchise, income, profit, or other tax or payment shall be deemed to be a Real
Estate Tax for the purposes hereof. If Owner should incur expenses in connection
with Owners endeavor to reduce or prevent increase in assessed valuation, Tenant
shall be obligated to pay as additional rent the amount computed by multiplying
the percent set forth in line 1 hereof times such expenses of Owner, and such
amount shall be due and payable upon demand by Owner and collectable in the same
manner as annual rent and Tenant shall be entitled to a proportionate reduction,
if any, in future tax bills. The obligation to make any payments of additional
rent pursuant to this Article shall survive the expiration or other termination
of this lease. Anything to the contrary notwithstanding, no escalations under
this Article shall be due during the first twelve months of the lease term.
4. If the Owner furnishes 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.
Tenant covenants and agrees that the rate used in determining the amount to be
added to the base rent will be at the same service classification under which
the Owner purchases electric current from the public utility corporation serving
the part of the city where the building is located, however, in no event will
the amount to be added to the base rent be less than $3.25 per square foot. The
Owner will furnish electricity to the Tenant through presently installed
electrical facilities for Tenant's reasonable use of such lighting, electrical
appliances and equipment as the Owner may permit to be installed in the
premises. The Tenant agrees that an electrical consultant, selected by the Owner
may make a survey of the electric lighting and powerload to determine 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
and the Tenant shall pay the same as additional rent, monthly on the first day
of each and every month in advance for each month from the commencement of the
demised term, 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. Tenant shall make no alterations or additions to
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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 buildings 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 wise be liable or responsible to
Tenant for any loss or damage or expense which Tenant may sustain or incur if
either the quantity or character of electric service is changed or is no longer
available for Tenants requirements. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity of existing
feeders to the building or the risers or wiring installation. Any riser or
risers to supply Tenant's electrical requirements, upon written request of
Tenant, will be installed by Owner, at the sole cost and expense of Tenant, if,
in Owner's sole judgment, the same are necessary and will not cause or create a
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 risers Owner will also at the
sole cost and expense of 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 the Tenant, in which event, the
Tenant may make application directly to the utility company servicing the
building for the Tenant's entire separate supply. The Owner upon the expiration
of the aforesaid (30) days written notice to the Tenant may discontinue
furnishing the electric current, in which latter event, the Tenants liability
for additional rent provided for this Article shall terminate as of the date of
discontinuance of the supplying of electric current but this lease shall
otherwise remain in frill force and effect and be otherwise unaffected.
5. In the event that any installment of rent or additional rent is
not received by Owner within ten (10) days of the due date, a late charge of
four cents (.04) for each dollar ($1.00) of the installment so overdue may be
charged by the Owner for the purpose of defraying the expense incident to
handling such delinquent installments. In addition to the foregoing late charge,
interest shall accrue on such overdue installment of rent or additional rent
from the due date thereof until the date of payment at a rate per annum equal to
the prime rate as published in the Wall Street Journal plus four percent (4%).
Such late charge and any accrued interest shall be in addition to any reasonable
counsel fees and necessary disbursement incurred by Owner in collecting said
installments. In the event a check delivered to Owner for installments of rent
is dishonored, a reasonable service charge may be made for the handling of such
check.
6. If Owner receives from Tenant any payment ("Partial Payment") less
than the sum of fixed rent, additional rent or other charges then due and owing
pursuant to the terms and conditions of this Lease, Owner, in its sole
discretion, may accept such Partial Payment and allocate the same in whole or in
part to any fixed rent, additional rent and/or any other charges or to any
combination thereof and, the acceptance of such Partial Payment shall not be
deemed a waiver of the remaining amounts due and owing.
7. A. Tenant shall obtain and keep in full force and effect during
the term of this Lease:
(1) a policy of commercial general public liability insurance,
including bodily injury and property damage coverage, with a broad form
contractual liability endorsement or its equivalent,
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naming Tenant as insured and protecting Owner, Owners employees and managing
agent, and any mortgagees or lessors having an interest in the building, as
additional insureds (issued on an `occurrence' basis and not a `claims made'
basis) against claims for personal injury, death and/or third- party property
damage occurring in or about the Premises or the Building, and under which the
insurer agrees to waive any right of recovery such insurer may have had against
Owner, Owner's employees and managing agent, and any mortgagees or lessors
having an interest in the Building and to indemnify, defend and hold Owner
harmless from and against, among other things, all cost, expense and/or
liability (including, without limitation, reasonable attorneys' fees) arising
out of or based upon any and all claims, accidents, injuries and damages
occurring in, on or about the premises (whether or not such claims, accidents,
injuries and damages occurred as a result of Owner's negligence) The minimum
limits of liability applicable exclusively to the Premises shall be at least
$2,000,000 combined single limit bodily injury and property damage (or in any
increased amount (or in the form of an umbrella liability policy for "excess"
liability coverage) required by Owner in the exercise of Owner's commercially
reasonable discretion); and
(2) insurance against loss or damage by fire and such other risks and
hazards (including burglary, theft, vandalism, sprinkler leakage, water damage,
explosion, breakage of glass within the Premises and, if the Premises are
located at or below grade, broad form flood insurance) as are insurable under
then available standard forms of "all risk" (or special form) insurance
policies, to Tenant's personal property and business equipment and fixtures
(hereinafter "Tenant's Property") and, whether or not such alterations or tenant
improvements had been paid for or performed by Tenant, any alterations and
tenant improvements in and to the Premises (hereinafter, `Tenant's work") for
the full replacement cost value thereof (with such policy having a deductible
not in excess of an amount to be determined by Owner in the exercise of owner's
commercially reasonable discretion) protecting Tenant, Owner, Owners employees
and managing agent, and any mortgagees or lessors having an interest in the
Building.
B. At least thirty (30) days prior to the expiration or other
termination of any such policies, and prior to occupancy of the demised
premises, Tenant agrees to deliver to Owner evidence of payment for the policies
and certificates evidencing such insurance. All such policies shall contain
endorsements that (a) such insurance may not be modified or cancelled or allowed
to lapse except upon thirty (30) days' written notice to Owner by certified
mail, return receipt requested, containing the policy number and the names of
the insured and the certificate holder, and (b) Tenant shall be solely
responsible for payment of all premiums under such policies and Owner shall have
no obligation for the payment thereof notwithstanding that Owner shall be named
as an additional insured. Tenant's failure to provide and keep in force the
aforementioned insurance shall be regarded as a material default hereunder,
entitling Owner to exercise any or all of the remedies as provided in this Lease
in the event of Tenant's default. All insurance required to be carried by Tenant
pursuant to the terms of this Lease shall be effected under valid and
enforceable policies issued by reputable and independent insurers permitted to
do business in the State of New York which rate, in Best's Insurance Guide, or
any successor thereto (or if there be none, an organization having a national
reputation), as having a general policy-holder rating of at least "A-XIII."
C. The parties hereto shall procure an appropriate clause into or
endorsement on, any "all risk" (or special form) or fire or extended coverage
insurance covering the Premises, the
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Building, the personal property, fixtures or equipment located thereon or
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery by the insured prior to any loss. The waiver of
subrogation or permission for waiver of the right of recovery in favor of Tenant
shall also extend to all other persons or entities occupying or using the
Premises in accordance with the terms of the Lease. If the payment of an
additional premium is required for the inclusion of such waiver of subrogation
provisions or consent to a waiver of right of recovery, each party shall advise
the other of the amount of any such additional premiums by written notice and
the other party shall pay the same or shall be deemed to have agreed that the
party obtaining the insurance coverage in question shall be free of any further
obligations under the provisions hereof relating to such waiver or consent. It
is expressly understood and agreed that Owner will not be obligated to carry
insurance on Tenant's Property or Tenant's Work or insurance against
interruption of Tenant's business.
D. Each party hereby waives all rights of recovery, claim, action,
cause of action and releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damage or destruction with respect to its property
(including rental value or business interruption) occurring during the term of
this Lease to the extent to which such party is insured under a policy
containing a waiver of subrogation or naming the other party as an additional
assured, as provided in this Article. If notwithstanding the recovery of
insurance proceeds by either party for loss, damage or destruction of its
property (or rental value or business interruption) the other party is liable to
the first party with respect thereto or is obligated under this Lease to make
replacement, repair or restoration, then provided the first party's right of
full recovery under its insurance policies is not thereby prejudiced or
otherwise adversely affected, the amount of the net proceeds of the first
party's insurance against such loss, damage or destruction shall be offset
against the second party's liability to the first party therefor, or shall be
made available to the second party to pay for the replacement, repair or
restoration, as the case may be. Tenant shall advise insurers of the foregoing
and such waiver shall be part of each policy maintained by Tenant which applies
to the Premises, any part of the Real Property or Tenant's use and occupancy of
any part thereof.
8. This lease shall not be binding upon the Owner and Tenant unless
and until it is executed by Owner and Tenant and delivered to each other or to
their respective attorneys.
9. Tenant represents that it has dealt with no Broker in connection
with this Lease other than ▇▇▇▇▇▇▇ & Company LLC. Tenant shall indemnify and
hold Owner harmless from and against any cost, claim or expense arising out of a
breach of this representation by Tenant. Owner represents that it has dealt with
no Broker in connection with this Lease other than ▇▇▇▇▇▇▇ & Company LLC, and
Owner shall pay the brokerage commission due such Broker pursuant to separate
agreement. Owner shall indemnify and hold Tenant harmless from and against any
cost, claim or expense arising out of a breach of this representation by Owner.
The aforesaid provisions of this Article shall survive the expiration or sooner
termination of this lease.
10. The Tenant acknowledges that it has inspected the premises leased
hereunder and accepts the same "as-is" Should the Tenant at its sole cost and
expense seek to alter such premises or provide any other service to said
premises, the same must first be approved by the Owner in writing and in all
events, such changes being at the sole expense of the Tenant, must
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and shall conform with all rules, regulations and laws of governmental
authorities having jurisdiction over the same. Anything to the contrary
notwithstanding, Owner at its sole cost and expense will paint and re-carpet the
demised premises, Tenant to choose style and color from building standard
materials, replace any damaged ceiling tiles, and demolish the office walls in
the locations shown on Exhibit B attached hereto and made a part hereof.
Further, Landlord will deliver the demised premises with all systems, including
HVAC, plumbing, and electrical, and existing kitchen appliances, in good working
order.
11. Other than Owner's work as set forth in Article 46, the Tenant
shall, at its own expense, redecorate, paint and renovate the said premises as
it may deem necessary, to keep them in good appearance, permission being given
by the Owner to the Tenant to make, at Tenants own expense, such necessary
alteration, additions or improvements to said premises as Tenant may require,
consistent with the use for which the premises are being leased, provided,
however, that any major alterations, including storefront, which may affect the
fundamental structure of the building on the premises shall not be made without
prior written consent of the Owner therefor. All erections, alterations,
additions, replacements and improvements, whether temporary or permanent in
character, including any additional electric lighting fixtures which may be made
or installed upon the premises by the Tenant during the term of this lease or of
any renewal thereof, shall be removed by Tenant at Tenant's sole expense upon
the expiration of the term hereof or of any renewal period provided Tenant shall
restore the premises to its original condition as existed at the commencement of
this lease and if the same shall not be so removed, they shall remain upon and
be surrendered with the premises as a part thereof at the termination of this
lease, or any renewal thereof, without compensation to the Tenant. All furniture
of, or trade fixtures installed by the Tenant (excepting as aforesaid any
shelving or fixtures replacing those now in the premises) shall be removed by
the Tenant upon the expiration of the term hereof provided in so doing, no
material injury is done to the premises. The Tenant further agrees to keep said
premises and all parts thereof in a clean and sanitary condition and free from
trash, inflammable material and other objectionable matter.
12. In any action brought to enforce the obligations of Owner under
this lease, any judgment or decree shall be enforceable against Owner only to
the extent of Owner's interest in the building of which the demised premises
form a part and no such judgment shall be the basis of execution on, or be a
lien on assets of Owner or any assets of any party being a partner or
stockholder in Owner, other than the interest in said building.
13. Supplementing Article 22 of the lease, upon the expiration or
other termination of this lease, Tenant shall quit and surrender to Owner the
demised premises, vacant, broom clean and in good order and condition, ordinary
wear and tear, repairs and damage for which Tenant is responsible under the
terms of this Lease excepted. Tenant shall remove all of its property. Tenant
expressly waives, for itself and for any person claiming through or under
Tenant, any rights which Tenant or any such person may have under the provisions
of Section 2201 of the New York Civil Practice Law and Rules and of any
successor law of like import then in force in connection with any holdover
summary proceedings which Landlord may institute to enforce the foregoing
provisions of this Article 49.
14. Should the Tenant hold over in possession after the expiration or
sooner termination of the original term or of any extended term of this lease,
such holding over shall not
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be deemed to extend the term or renew the lease, but such holding over
thereafter shall continue upon the covenants and conditions herein set forth
except that the charge for use and occupancy of such holding over for each
calendar month or part thereof (even if such part shall be a small fraction of a
calendar month) shall be the sum of:
(a) 1/12 of the then current annual rent rate set forth on page one
of this lease, times 3, plus
(b) 1/12 of the net increase, if any, in annual fixed rental due
solely to increases in the cost of the value of electric service furnished to
the premises in effect on the last day of the term of the lease, plus
(c) 1/12 of all other items of annual additional rental which annual
additional rental would have been payable pursuant to this lease had this lease
not expired or terminated, plus
(d) those other items of additional rent (not annual additional rent)
which would have been payable monthly pursuant to this lease, had this lease not
expired or terminated, which total sum tenant agrees to pay to Owner promptly
upon demand, in full without set off.
In addition to the foregoing, Tenant shall indemnify and hold Owner
harmless from and against any and all costs and expenses including, without
limitation, reasonable attorney's fees, loss of income and all consequential
damages it may suffer or incur as a result of Tenant's holdover. The aforesaid
provisions of this Article shall survive the expiration or sooner termination of
this lease.
The provisions of this Article do not exclude Owner's right of
re-entry or any other right under this lease or at law or in equity, including,
without limitation, all rights given at law or in equity, in the case of
holdovers, to remove Tenant and anyone claiming through or under Tenant.
15. In the event Owner gives its approval for alteration work of the
demised premises pursuant to Articles "3" and "46" hereof, Liability Insurance
in the sum of $1,000,000/$2,000,000 and $100,000 property damage and Worker's
Compensation must be carried by any contractor performing services in the
demised premises and Certificates of same must be transmitted to Owner prior to
the commencement of any alterations. Owner, Owner's employees and managing
agent, and any mortgagees or lessors having any interest in the building, shall
be named as additional insureds under all such liability insurance policies.
16. Supplementing Article 47 (and except with respect to Owner's work
set forth in Article 46), all improvements and changes to the Premises desired
by the Tenant, shall be furnished by Tenant at Tenant's sole cost and expense.
All such improvements at any time made shall be subject to the following
conditions:
(i) Plans and specifications shall be prepared by a licensed
architect and/or by a licensed engineer selected and paid by Tenant for any
structural alterations, and for any alterations, whether or not structural, in
connection with which plans are required to be filed by law with governmental
authorities. Such plans and specifications shall be submitted to Owner for
approval in advance of the commencement of work, which approval shall not be
unreasonably withheld. Owner agrees to respond to said plans and specifications,
and any revisions thereof,
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within 15 days of their receipt, and Owner's approval thereto shall be deemed
given in the event Owner shall not have responded within said 15-day period.
(ii) In performing Tenant's work in, on or upon the premises, Tenant
covenants and agrees to use only first-class materials and to do, or cause to be
done, all work in a workmanlike manner, employing contractors approved by Owner,
which approval shall not be unreasonably withheld. All such work shall be
performed in compliance with the plans and specifications therefore, if any, as
approved by Owner.
(iii) Tenant covenants and agrees that all work performed in, or upon
the Premises shall be in strict compliance with applicable laws, ordinances,
regulations and orders of any Federal, State, County, municipal or other
governmental authorities having or acquiring jurisdiction thereof. Without
limiting the generality of the foregoing, Tenant covenants and agrees, other
than in connection with Owner's work, to procure and pay for all necessary
governmental licenses and permits in advance of the performance of the work, and
to procure all necessary governmental approvals and certificates, including
approvals of the New York Board of Fire Underwriters (or any successor
organization thereto). Owner agrees to cooperate with Tenant, at Tenant's sole
cost and expense, in procuring the foregoing licenses, permits, and approvals
and in filing the plans and specifications referred to above.
(iv) All of the Tenant's work shall, upon completion, be inspected by
a representative of Owners fire insurer. In the event that any such work results
in an increased premium, Tenant covenants and agrees to pay the amount of such
increase in premium for Owner's fire and extended coverage insurance policy and
any renewals thereof, as additional rent, on demand.
(v) Tenant assumes the entire responsibility and liability, including
statutory and common law liability, for any and all injuries or death of any or
all persons, including Tenant's contractors and subcontractors and their
respective employees, and for any and all damages to property caused by, or
resulting from or arising out of any act or omission on the part of Tenant,
Tenant's contractors or subcontractors' or their respective employees, in the
prosecution of Tenants Work, and with respect to such work, agrees to indemnify
and save harmless Owner, from and against all losses and/or expenses including
reasonable legal fees and actual expenses, which it may suffer or pay as the
result of claims or lawsuits due to, because of, or arising out of any and all
such injuries or death and/or damage.
(vi) In the event that Tenant suffers or permits any mechanic's or
similar lien to be filed against the premises, the building and/or the land on
which it is located, which remains undischarged by bonding, legal proceedings or
otherwise for more than ten (10) days, for work performed or claimed to have
been performed for Tenant, or for materials furnished or claimed to have been
furnished to Tenant, in addition to all other rights and remedies Owner may have
at law and under this lease, Owner shall have the right to discharge said lien
by bonding, legal proceedings or otherwise, or to settle or compromise the same,
and to be reimbursed by Tenant for any actual expenses incurred in connection
therewith, and any interest thereon in accordance with Article 41, as additional
rent, payable within 10 days of demand.
(vii) All alterations, fixtures and equipment, when installed in or
on the Premises, shall be free and clear of purchase money mortgages, chattel
mortgages, conditional sales obligations
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and any and all other liens provided, however, that this provision shall not
prohibit Tenant from leasing equipment not affixed to or installed as part of
the Premises.
(viii) Whenever Tenant shall enter into any contract for the
performance of work all such contractors and subcontractors shall be acceptable
to Owner. Tenant shall cause Tenant's contractors and subcontractors to maintain
in effect statutory workmen's compensation insurance in connection with such
work and furnish to Owner a certificate of such insurance.
17. Tenant, at its sole cost and expense, shall procure and maintain
any and all license or licenses, permit or permits, required from any source
whatsoever for the operation and/or maintenance of the demised premises during
the term of this Lease. In the event that Tenant shall fail to apply for and/or
maintain any and all of such licenses and/or permits, Owner may, but shall not
be obligated to, apply therefore, and if Owner receives such licenses and/or
permits, Tenant agrees to pay to Owner, as additional rent, a sum equal to the
license and/or permit fees paid by Owner for such licenses and/or permits.
18. It is hereby agreed and understood that any and all reasonable
attorney's fees and/or legal expenses incurred by the Owner in any successful
proceedings instituted by reason of the Tenant's default of any of the terms or
conditions of this Lease shall be deemed to be additional rent and such
attorney's fees and/or legal expenses shall be recovered from the Tenant.
19. The statement in this lease of the nature of the business to be
conducted by Tenant shall not be deemed to constitute a representation or
guaranty by Owner that such use is lawful or permissible in the premises under
the certificate of occupancy for the building.
20. Notwithstanding the provisions of Article 11 and in modification
and amplification thereof, Owner shall not unreasonably withhold its consent to
an assignment or sublet of the demised premises.
A. If Tenant shall desire to assign this Lease or to sublet all or a
portion of the demised premises, Tenant shall submit to Owner a written request
for Owner's consent to such assignment or subletting, which request shall
contain or be accompanied by the following information: (i) the name and address
of the proposed assignee or subtenant; (ii) a description identifying the space
to be sublet and Tenant's improvements included therein; (iii) the terms and
conditions of the proposed assignment or subletting; (iv) the nature and
character of the business of the proposed assignee or subtenant and of its
proposed use of the demised premises; and (v) current financial information and
any other information Owner may reasonably request with respect to the proposed
assignee or subtenant. Owner may then, by notice to such effect given to Tenant
within fifteen (15) business days after receipt of Tenant's request for consent
and of such further information as Owner may reasonably request to elect to
terminate the Lease, only if the entire demised premises are to be assigned or
sublet. The termination of the Lease shall be set forth in the notice and shall
take place on a date not earlier than one (1) day before the effective date of
the proposed assignment or subletting or later than thirty-one (31) days after
said effective date. Tenant shall then vacate or surrender the demised premises
on or before the termination date and the term of this Lease shall end on the
termination date as if that were the
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expiration date. Anything to the contrary notwithstanding, the provisions of
this Article 56 shall not apply to the sub-let of desk space only in the demised
premises.
B. Tenant shall not list or otherwise publicly advertise for
assignment or subletting, without Owner's prior written consent at a rental rate
less than the rate of fixed rent and additional rent then payable hereunder for
such space.
C. If Owner consents to a subletting, it shall be expressly subject
to all of the obligations of Tenant under this lease and the further condition
and restriction that the sublease shall not be assigned, encumbered or otherwise
transferred or the subleased premises further sublet by the sublessee in whole
or in part, or any part thereof suffered or permitted by the sublessee to be
used or occupied by others, without the prior written consent of Owner in each
instance. No subletting shall end later than one day before the Expiration Date
of this lease.
D. Any subletting approved hereunder is subject to the express
condition, and by accepting a sublease hereunder each subtenant shall be
conclusively deemed to have agreed, that if this lease should be terminated
prior to the Expiration Date or if Owner shall succeed to Tenants estate in the
demised premises, then at Owner's election the subtenant shall attorn to and
recognize Owner as the subtenant's Owner under the sublease and the subtenant
shall promptly execute and deliver any instruction Owner may reasonably request
to evidence such attornment.
E. Tenant shall furnish Owner with a counterpart (which may be a
conformed or reproduced copy) of each sublease or assignment made hereunder
within ten (10) days after the date of its execution. Tenant shall remain fully
liable for the performance of all of Tenant's obligations hereunder
notwithstanding any subletting provided for herein, and without limiting the
generality of the foregoing, shall remain fully responsible and liable to Owner
for all acts and omissions of any subtenant or anyone claiming under or through
any subtenant which shall be in violation of any of the obligations of this
lease and any such violation shall be deemed to be a violation by Tenant. Tenant
shall pay Owner on demand any expense which Owner may reasonably be required to
incur in acting upon any request for consent to assignment or subletting
pursuant to this Article.
F. Notwithstanding any assignment and assumption by the assignee of
the obligations of Tenant hereunder, Tenant herein named, shall remain liable
jointly and severally (as a primary obligor) with its assignee and all
subsequent assignees for the performance of Tenants obligations hereunder, and,
without limiting the generality of the foregoing, shall remain fully and
directly responsible and liable to Owner for all acts and omissions on the part
of any assignee subsequent to it in violation of any of the obligations of this
lease.
G. Notwithstanding anything to the contrary hereinabove set forth, no
assignment of this lease shall be binding upon Owner unless the assignee shall
execute and deliver to Owner an agreement, in recordable form, whereby such
assignee agrees unconditionally to be personally bound by and to perform all of
the obligations of Tenant hereunder and further expressly agrees that
notwithstanding such assignment the provisions of this Article shall continue to
be binding upon such assignee with respect to all future assignments and
transfers. A failure or refusal of such assignee to execute or deliver such an
agreement in recordable form shall not release the
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assignee from its liability for the obligations of Tenant hereunder assumed by
acceptance of the assignment of this lease.
H. For the purpose of this lease, any sale, transfer, or assignment
of a majority of the direct or indirect equity interests of Tenant (whether
stock or partnership or membership interests), or sale or other transfer of
substantially all of its assets, shall be deemed an assignment.
I. Notwithstanding anything to the contrary hereinabove set forth
Tenant may not assign or sublet all or any portion the demised premises to any
tenant or subtenant in the building of which the demised premises form a part or
to any third party who has been shown space or inquired about space in the
building of which the demises premises form a part within the six (6) month
period immediately preceding the written request for consent as set forth in
part A above.
J. If Owner shall consent to any assignment or subletting and Tenant
shall (i) in the case of an assignment of this Lease, receive any consideration
from its assignee in connection therewith, Tenant shall pay over to Owner as
additional rent hereunder, fifty (50%) percent of such consideration or (ii) in
the case of a sublet of all or any portion of the demised premises for rents
which for any period shall exceed the rents payable for the subleased space
under this Lease for the same period, or receive any consideration over and
above such rents then payable, Tenant shall pay Owner as additional rent
hereunder fifty (50%) percent of any "net profits" (as hereinafter defined) that
Tenant may derive from such subletting. "Net profits" shall consist of such
excess rent and/or such other consideration received by Tenant for such
subletting.
K. Without limiting any of the foregoing provisions of this Article,
if pursuant to the Bankruptcy Code, as the same may be amended, Tenant is
permitted to assign or otherwise transfer this Lease (whether in whole or in
part in disregard of the restrictions contained in Article 57 and/or Article
16),Tenant agrees that adequate assurance of future performance by the assignee
or transferee permitted under such Code shall mean the deposit of cash security
with Owner in an amount equal to the sum of one (1) year's fixed rent then
reserved hereunder plus an amount equal to all additional rent payable by Tenant
pursuant to this Lease for the calendar year preceding the year in which such
assignment is intended to become effective, which deposit shall be held by
Owner, without interest, for the balance of the term as a security for the full
and faithful performance of all of the obligations under this Lease on the part
of Tenant yet to be performed. If Tenant receives or is to receive any valuable
consideration for such an assignment or transfer (in part or in whole) of this
Lease, such consideration, after deducting therefrom any portion of such
consideration reasonably designated by the assignee or transferee as paid for
the purchase of Tenant's personal property in the demised premises, shall be and
become the sole exclusive property of Owner and shall be paid aver to Owner
directly by such assignee or transferee. Any such assignee or transferee may
only use the demised premises as executive offices for an assignee or transferee
whose main business is the same as Tenant's and such occupancy may not increase
the number of individuals occupying the demised premises at the time a petition
for bankruptcy (or reorganization) is filed by or against Tenant. In addition,
adequate assurance shall mean that any such assignee or transferee of this Lease
shall have a net worth (exclusive of good will) equal to at least fifteen (15)
times the aggregate of the annual Fixed Rent reserved hereunder plus all
additional rent for the preceding calendar year as
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aforesaid. Such assignee or transferee shall expressly assume this Lease by an
agreement in recordable form.
21. Tenant shall pay to Owner as additional rent the sum of FIFTY TWO
AND 08/100 ($52.08) DOLLARS on the first day of each month during the term of
this lease, as Tenant's portion of the contract price for the sprinkler
supervisory service.
22. With reference to Articles 3, 47 and 51 all alterations,
renovations, installations and decorations to be done by Tenant in the demised
premises shall be done only by a general contractor acceptable to Owner and a
supervisor is required to be at the premises at all times while such work is
being performed.
23. Anything herein contained to the contrary notwithstanding, the
demised premises will be delivered in AS IS condition (except for Owner's work
set forth in Article 46).
24. Because of requirements of Local Law 5 regarding certain fire
safety regulations, it is necessary that Owner know at all times the approximate
number of persons within the demised premises after normal business hours (i.e.
after 6:00 p.m. on weekdays and on weekends and holidays). Accordingly, within
thirty (30) days after the date hereof, Tenant shall submit to Owner its best
estimate of the number of Tenant's employees, agents, visitors and other persons
which Tenant expects to occupy the demised premises at any time after normal
business hours. Prior to 5:00 p.m. of each weekday or prior to 5:00 p.m., on the
day preceding a weekend or holiday, Tenant shall inform the building manager's
office whenever Tenant knows, or has reason to believe, that the number of its
employees, agents, visitors and other persons occupying the demised premises
after normal working or business hours that evening or the next day(s), as the
case may be, will exceed this estimate. Tenant also shall keep reasonable
records which indicate the number of persons entering and leaving the demised
premises after normal business hours, and shall provide copies of such records
to Owner at Owner's request.
25. Tenant shall not cause or permit any Hazardous Materials (as
defined below) to be used, transported, stored, released, handled, produced or
installed in, on or from, the Demised Premises or the Building, except for such
Hazardous Materials (such as cleaning and photocopying fluids) that are
customarily used in the operation of offices, provided that such Hazardous
Materials are used in compliance with all laws and/or requirements of public
authorities. The term "Hazardous Materials" shall mean any flammable, explosive,
or radioactive materials, or hazardous wastes, hazardous and toxic substances,
or related materials, asbestos or any material, containing asbestos or any other
such substance or material, as defined by any federal, state or local
environmental law, ordinance, rule or regulation including, without limitation,
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing. In the event of a
breach by Tenant of the provisions of this Article 61, Owner shall in addition
to all of its rights and remedies under this Lease and pursuant to law, require
Tenant to remove any such Hazardous Materials from the demised premises or the
Building in the manner prescribed for such removal by all requirements of law.
The provisions of this Article 61 shall survive the expiration or sooner
termination of this Lease.
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26. With reference to Article 34 and Tenant's security deposit, it is
understood and agreed that (a) the security deposit shall not be held by Owner
as a trust fund and (b) Owner shall deposit the security deposit in an
interest-bearing account and any interest thereon, less Owner's reasonable
administrative fee associated therewith, shall be added to and become a part of
the security deposit. No act or thing done by Owner or Owner's agents during the
Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such surrender shall be valid unless in writing signed by
Owner.
27. Tenant acknowledges that Owner may need to recover possession of
the leased premises in connection with construction related to the releasing or
renovation of the building or a substantial portion thereof. As such, Tenant
acknowledges and agrees Owner shall have the right, at any time after the second
anniversary of the date of this lease, to terminate this lease upon nine (9)
months prior written notice (the "Termination Notice"). Upon termination by
Owner, this lease shall end and expire on the date (the "Termination Date") set
forth in the Termination Notice as if such date were the date originally set
forth in this lease for the expiration of the term demised hereunder. The
termination of this lease in accordance with the terms and provisions of this
Article shall not constitute a release or discharge of Tenant with respect to
any outstanding and unsatisfied obligation or liability, whether unbilled or
calculated, accrued or incurred applicable to the leased premises, such as, but
not limited to, basic rent, additional rent and/or other charges payable by
Tenant up to and including the Termination Date. In the event of any such
termination, Owner will use reasonable efforts to relocate Tenant pursuant to
Article 65 below if space is available and such relocation is consistent with
the renovations and/or leasing program of Owner.
28. Tenant hereby waives trial by jury in any action, proceeding or
counterclaim brought by or against Tenant on any action, proceeding or
counterclaim brought by or against Tenant on any matter whatsoever arising out
of or in any way connected with this Lease the relationship of Owner and Tenant,
and Tenant's use or occupancy of the Premises, including, without limitation,
any claim or injury or damage, and any emergency and other statutory remedy with
respect thereto.
29. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Owner to recover possession of the Premises,
unless the failure by Tenant to interpose such counterclaim in any such action
or proceeding would preclude Tenant from asserting the subject matter of such
counterclaim in a separate action or proceeding with any other action which may
have been or will be brought in any other court by Tenant.
30. A. Owner shall have the right, at its sole option, upon at least
thirty (30) days' prior written notice to Tenant (the "Relocation Notice") to
relocate Tenant to, and to substitute for the leased premises, other space
within the Building (the "Substitute Premises") provided the gross rentable area
of the Substitute Premises shall be the same as or within ten percent (10%) of
(plus or minus) the gross rentable area of the leased premises and are otherwise
substantially similar to the Leased Premises.
B. The Substitute Premises shall be improved by Owner at its expense,
with decorations and improvements that are substantially comparable in quantity
and quality to those that existed as of the Commencement Date of this Lease.
Owner shall pay the actual,
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documented, necessary and reasonable expenses incurred by Tenant in connection
with such substitution, such as costs of moving, door lettering and telephone
relocation, provided Owner has first approved in writing all of said expenses
before Tenant incurs same.
C. The Substitute Premises shall become the "leased premises" for
purposes of this Lease on the date, as determined solely by Owner, when Owner
has substantially completed the Substitute Premises. All of the obligations,
commitments, responsibilities, duties and liabilities of Tenant set forth in
this Lease shall apply to Tenant with respect to the Substitute Premises
beginning on said substantial completion date, as established solely by Owner.
31. Tenant represents, warrants and covenants that neither Tenant nor
any of its partners, members or shareholders (i) is listed on the Specially
Designated Nationals and Blocked Persons List maintained by the Office of
Foreign Asset Control, Department of the Treasury ("OFAC") pursuant to Executive
Order No. 13224, 66 Fed. Reg. 49079 (Sept 25, 2001) ("Order") and all applicable
provisions of Title III of the USA PATRIOT ACT (Public Law No. 107-56 (October
26, 2001)); (ii) is listed on the Denied Persons List and Entity List maintained
by the United States Department of Commerce; (iii) is listed on the List of
Terrorists and List of Disbarred Parties maintained by the United States
Department of State, (iv) is listed on any list or qualification of "Designated
Nationals" as defined in the Cuban Assets Control Regulations 31 C.F.R. Part
515; (v) is listed on any other publicly available list of terrorists, terrorist
organizations or narcotics traffickers maintained by the United States
Department of State, the United States Department of Commerce or any other
governmental authority or pursuant to the Order, the rules and regulations of
OFAC (including without limitation the Trading with the Enemy Act, 50 U.S.C.
App. 1-44; the International Emergency Economic Powers Act, 50 U.S.C. ▇▇.▇▇.
1701-06; the unrepealed provision of the Iraqi Sanctions Act, Publ.L. No.
101-513; the United Nations Participation Act, 22 U.S.C. ss. 2349 aa-9; The
Cuban Democracy Act, 22 U.S.C. ▇▇.▇▇. 60-01-10; The Cuban Liberty and Democratic
Solidarity Act, 18.U.S.C. ▇▇.▇▇. 2332d and 233; and The Foreign Narcotic Kingpin
Designation Act, Publ. L. No. 106-201, all as may be amended from time to time);
or any other applicable requirements contained in any enabling legislation or
other Executive Orders in respect of the Order (the Order and such other rules,
regulations, legislation or orders are collectively called the "ORDERS"); (vi)
is engaged in activities prohibited in the Orders; or (vii) has been convicted,
pleaded nolo contendere, indicted, arraigned or custodially detained on charges
involving money laundering or predicate crimes to money laundering, drug
trafficking, terrorist-related activities or other money laundering predicate
crimes or in connection with the Bank Secrecy Act (31 U.S.C. ▇▇.▇▇. 5311 et.
seq.).
32. If Tenant is in arrears in the payment of rent or additional
rent, Tenant waives Tenant's right, if any, to designate the items against which
any payments made by Tenant are to be credited, and Owner may apply any payments
made by Tenant to any items Owner sees fit.
33. Supplementing Article 18 of this lease:
A. In case of any default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, as provided in Article 17 of this lease,
Tenant (and all other occupants) shall vacate and surrender to Owner the demised
premises in accordance with this lease.
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B. Owner may recover from Tenant, and Tenant shall pay Owner on
demand, in lieu of any further deficiency pursuant to subsection (c) of Article
18 hereof, as and for liquidated damages, an amount equal to the difference
between the rent and additional rent reserved hereunder for the unexpired
portion of the term demised and the fair and reasonable rental value of the
demised premises (including the additional rent) for the same period
(conclusively presuming the additional rent for each year thereof to be the same
as was payable for the year immediately preceding the default, re-entry,
expiration and/or dispossession). In the computation of such damages the
difference between any installment of rent and additional rent becoming due
hereunder and the fair and reasonable rental value of the demised premises for
the period for which such installment was payable shall be discounted at the
rate of four percent (4%) per annum. If the demised premises or any part thereof
be relet by Owner for the unexpired term of this lease, or any part thereof,
before presentation of proof of such liquidated damages to any court, commission
or tribunal, the amount of rent reserved upon such reletting shall be deemed 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 re-letting. Nothing herein contained
shall limit or prejudice the right of Owner to prove for and obtain as
liquidated damages 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.
C. Nothing contained in this lease shall be considered to limit or
preclude the recovery by Owner from Tenant of the maximum amount allowed to be
obtained as damages or otherwise at law or in equity.
34. A. All legal actions relating to this lease shall be adjudicated
in the state courts of the State of New York, or the federal courts, in either
case having jurisdiction in the county in which the building is located. Tenant
irrevocably consents to the personal and subject matter jurisdiction of those
courts in any legal action relating to this lease. This consent to jurisdiction
is self-operative and no further instrument or legal action, other than service
of process in any manner permitted by law or this Section, is necessary in order
to confer jurisdiction upon the person of Tenant and the subject matter in
question in any such court.
B. Tenant irrevocably waives and shall not assert, by way of motion,
as a defense or otherwise (i) any objection to any such court being the venue of
any legal action relating to this lease, (ii) any claim that any legal action
relating to this lease brought in any such court has been brought in an
inconvenient forum or (iii) any claim that Tenant is not personally subject to
the jurisdiction of that court.
C. Service in any legal action relating to this lease may be made
upon Tenant by delivery of the summons and complaint, or the petition and notice
of petition, by certified or registered mail, return receipt requested, sent to
Tenant at the demised premises or the last known business address of Tenant.
[Signature Page to Follow]
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Witness for Owner: SENDTEC, INC.
--------------------
/s/ By: /s/--------------------------------
Name: --------------------------
Title: --------------------------
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Witness for Owner:
/s/----------------- 386 PAS PARTNERS, LLC
By: 386 PAS MONDAY, LLC
its member
By: MONDAY PROPERTIES GROUP, LLC
its member
By: /s/--------------------------------
Name: --------------------------
Title: --------------------------
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EXHIBIT A
Demised Premises
EXHIBIT B
Office Walls to be Demolished