1
EXHIBIT 10.1
STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
2-8-84
Agreement of Lease, made as of this 24th day of March 1994, between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇,
party of the first part, hereinafter referred to as OWNER, and
MIKE'S ORIGINAL, INC., having an address of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇,
party of the second part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from
Owner Suite 402
in the building known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
for the term of three (3) years
(or until such term shall sooner cease and expire as hereinafter
provided) to commence on the
1st day of April nineteen hundred and ninety-four , and to end on the
30th day of June nineteen hundred and ninety-seven
both dates inclusive, at an annual rental rate as set forth in Paragraph 53
below
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that Tenant shall
pay the first monthly installment(s) on the execution hereof (unless this
lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
convenant as follows:
RENT 1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY 2. Tenant shall use and occupy demised premises for office use,
and for no other purpose.
2
TENANT ALTERATIONS:
3. Tenant shall make no changes in or to the demised premises of any
nature without Owner's prior written consent. Subject to the prior written
consent of Owner, and to the provisions of this article, Tenant at Tenant's
expense, may make alterations, installations, additions or improvements which
are non-structural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such ▇▇▇▇▇▇▇'▇ compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty days thereafter, at Tenant's
expense, by 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. Nothing in this Article shall be construed to give
Owner title to or to prevent Tenant's removal of trade fixtures, moveable office
furniture and equipment, but upon removal of any such from the premises or upon
removal of other installations as may be required by Owner, Tenant shall
immediately and at its expense, repair and restore the premises to the condition
existing prior to installation and repair any damage to the demised premises or
the building due to such removal. All property permitted or required to be
removed, by Tenant at the end of the term remaining in the premises after
Tenant's removal shall be deemed abandoned and may, at the election of Owner,
either be retained as Owner's property or 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 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
3
building, including the structural portions of its demised premises, and the
public portions of the building interior and the building plumbing, electrical,
heating and ventilating systems (to the extent such systems presently exist)
serving the demised premises. Tenant agrees to give prompt notice of any
defective condition in the 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, 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
4
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, others, 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 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
5
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 the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's judgement, to absorb and
prevent vibration, noise and annoyance.
SUBORDINATION:
7. This lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such leases or the
real property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request.
PROPERTY -- LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY:
8. Owner or its agents shall not be liable for any damage to property of
Tenant or of others entrusted to employees of the building, nor for loss of or
damage to any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by or due to the negligence of Owner, its agents, servants or
employees. Owner or its agents will not be liable for any such damage caused by
other tenants or persons in, upon or about said building or caused by operations
in construction of any private, public or quasi public work.
If at any time any windows of the demised premises are temporarily
closed, darkened or bricked up (or permanently closed, darkened or bricked up,
if required by law) for any reason whatsoever including, but not limited to
Owner's own acts, Owner shall not be liable for any damage Tenant may sustain
thereby and Tenant shall not be entitled to any compensation therefor nor
abatement or diminution of rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction. Tenant shall indemnify and
save harmless Owner against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses for which Owner shall not be reimbursed by
insurance, including reasonable attorneys fees, paid, suffered or incurred as a
result of any breach by Tenant, Tenant's agents, contractors, employees,
invitees, or licensees, of any covenant or condition of this lease, or the
carelessness, negligence or improper conduct of the Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
6
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give immediate notice thereof to Owner and
this lease shall continue in full force and effect except as hereinafter set
forth. (b) If the demised premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by and
at the expense of Owner and the rent, 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 decide to demolish
it or to rebuild it, then, in any of such events, Owner may elect to terminate
this lease by written notice to Tenant, given within 90 days after such fire or
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, and upon the date
specified in such notice the term of this lease shall expire as fully and
completely as if such date were the date set forth above for the termination of
this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Landlord's rights and remedies against Tenant
under the lease provisions in effect prior to such termination, and any rent
owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions of (b) and
(c) hereof, with all reasonable expedition, subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Owner's control. After any
such casualty, Tenant shall cooperate with Owner's restoration by removing from
the 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 issurance. If, and to the extent, that such waiver can be obtained only by
the payment of additional premiums, then the party benefitting from the waiver
shall pay such premium within ten days after written demand or shall be deemed
to have agreed that the party obtaining insurance coverage shall be free of any
further obligation under the provisions hereof with respect to waiver of
subrogation. Tenant acknowledges that Owner will not carry insurance on Tenant's
furniture and/or furnishings or any fixtures or equipment, improvements, or
appurtenances removable by Tenant and agrees that Owner will not be obligated to
repair any damage thereto or replace the same. (f) Tenant hereby 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.
7
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 other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment. underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, 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, to be added in RIDER attached hereto. Tenant covenants and
agrees that at all times its use of electric current shall not exceed the
capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
ACCESS TO PREMISES:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time, and, at
other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Owner may elect to perform. Tenant shall permit Owner to use and maintain
and replace pipes and conduits in and through the demised premises and to erect
new pipes and conduits therein provided they are concealed within the walls,
floor, or ceiling. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without
the same constituting an eviction nor shall the Tenant be entitled to 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
-------------------
Rider to be added if necessary.
8
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 cancelled by Owner by the sending of a written notice
to Tenant within a reasonable time after the happening of any one or
more of the following events: (1) the commencement of a case in
bankruptcy or under the laws of any state naming Tenant as the debtor;
or (2) the making by Tenant of an assignment or any other arrangement
for the benefit of creditors under any state statute. Neither Tenant
nor any person claiming through or under Tenant, or by reason of any
statute or order of court, shall thereafter be entitled to possession
of the premises demised but shall forthwith quit and surrender the
premises. If this lease shall be assigned in accordance with its terms,
the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
9
(b) it is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be
entitled to recover from Tenant as and for liquidated damages an amount
equal to the difference between the rent reserved hereunder for the
unexpired portion of the term demised and the fair and reasonable
rental value of the demised premises for the same period. In the
computation of such damages the difference between any installment of
rent becoming due hereunder after the date of termination and the fair
and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such
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 reletting 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 235 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, 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 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 during such
default within such five (5) day period, and shall not thereafter with
reasonable diligence and in good faith, proceed to remedy or cure such
default, then Owner may serve a written 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.
10
(2) If the notice provided for in (I) 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 shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, (b) Owner may re-let the premises or any part or parts thereof,
either in the name of Owner or otherwise, for a term or terms, which may at
Owner's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this lease and may grant concessions or
free rent or charge a higher rental than that in this lease, 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
convenants herein contained, any deficiency between the rent hereby reserved
and/or covenanted to be paid and the net amount, if any, of the rents collected
on account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the 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 for keeping the demised premises in
good order or for preparing the same for re-letting. Any such liquidated damages
shall be paid in monthly installments by Tenant on the rent day specified in
this lease and any suit brought to collect the amount of the deficiency for
any month shall not prejudice in any way the rights of Owner to collect the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency of any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws 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.
11
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 therefor, If Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT:
20. Owner shall have the right at any time without the same
constituting an eviction and without incurring liability to Tenant therefor to
change the arrangement and/or location of public entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets or other public parts of the
building and to change the name, number or designation by which the building may
be known. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
such controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
NO REPRESENTATIONS BY OWNER:
21. Neither Owner nor Owners'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 possesion of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
12
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, 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.
13
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 the balance of such rent or pursue any
other remedy in this lease provided. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of 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 counter claim 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 part of Tenant to
be performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment 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.
14
BILLS AND NOTICES:
28. Except as otherwise in this lease provided, a ▇▇▇▇, statement,
notice or communication which Owner may desire or be required to give to Tenant,
shall be deemed sufficiently given or rendered if, in writing, delivered to
Tenant personally or sent by registered or certified mail 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
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 OWNERS
29. As long as Tenant is not in default under any of the covenants of
this lease, Owners 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 a.m. 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 8:00a.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. RIDER to be added in respect to rates and conditions for such
additional service; (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.
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, 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 in this lease contained shall be construed to impose upon Owner any duty
or obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Owner shall not
be liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees.
16
SECURITY:
34. Tenant has deposited with Owner the sum of $4,068.00 as security
for the faithful performance and observance by Tenant of the terms, provisions
and conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent 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.
See (paragraph symbol) 56 for additional provisions.
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
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
SUCCESSORS AND ASSIGNS:
36. The covenants, conditions and agreements contained in this lease
shall bind and inure to the benefit of Owner and Tenant and their respective
heirs, distributees, executors, administrators, successors, and except as
otherwise provided in this lease, their assigns.
SEE RIDER ANNEXED HERETO.
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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ [SEAL]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ [L.S.]
---------------------------------- ---------------------------
Witness for Tenant: MIKE'S ORIGINAL, INC. [SEAL]
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ [L.S.]
---------------------------------- ---------------------------
17
ACKNOWLEDGMENTS
CORPORATE OWNER
STATE OF NEW YORK, ss.:
County of
On this day of , 19 , before me personaly came ,
to me known, who being by me duly sworn, did depose and say that he resides
in
that he is the of
the corporation described in and which executed the foregoing instrument, as
OWNER: that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
--------------------------------------------
INDIVIDUAL OWNER
STATE OF NEW YORK, ss.:
County of
On this day of , 19 , before me personaly came ,
to me known and known to me to be the individual
described in and who, as OWNER, executed the foregoing instrument and
acknowledged to me that he executed the same.
--------------------------------------------
CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of
On this day of , 19 , before me personaly came ,
to me known, who being by me duly sworn, did depose and say that he resides
in
that he is the of
the corporation described in and which executed the foregoing instrument, as
TENANT; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
--------------------------------------------
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.:
County of
On this day of , 19 . before me personally came ,
to me known and known to me to be the individual described in and who,
as TENANT, executed the foregoing instrument and acknowledged to me
that he executed the same.
--------------------------------------------
18
RIDER TO AGREEMENT OF LEASE
between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Landlord
and
MIKE'S ORIGINAL, INC., as Tenant
Dated: March 24, 1994
37. The terms of the within Lease shall be deemed enlarged or modified as the
case may be, by the provisions of this Rider, and in case of a conflict between
the provisions of this Lease and the provisions of this Rider, the provisions of
this Rider shall prevail.
38. Tenant represents that Tenant dealt with no broker other than United Realty
in connection with the making of this Lease and agrees to hold Landlord harmless
from any claim of any broker other than United Realty who claims commissions by
reason of having dealt with Tenant. Landlord agrees to pay the commission of
United Realty in accordance with separate letter agreement.
39. For the purposes of this Lease, wherever referred to herein the "base year"
shall be the twelve month period commencing January 1, 1994.
40. It is expressly agreed by the Tenant that in order for the air conditioning
system to function properly, Tenant is obliged to, and Tenant agrees to keep all
windows in the premises closed. The Landlord will service and maintain the air
conditioning for the premises generally during the hours of 8:00 am to 6:00 pm
on Monday through Friday of each week during the months of June, July, August
and September, exclusive of holidays, subject always to event and causes,
physical, mechanical and otherwise, beyond the reasonable control of Landlord
for failure of which Landlord shall not be liable in any event whatever. Any
damage caused to said appliances, equipment or appurtenance as a result of the
negligence of, or the careless operation by the Tenant or the agents, servants,
employees, licensees, invitees or visitors of the Tenant, shall be repaired by
the Landlord at the cost and expense of the Tenant. Any such expense shall
constitute additional rent.
41. The removal of extraordinary waste, such as wooden crates, and the
discarding of used furniture or equipment are deemed extraordinary waste, and
shall be removed from the building by the Tenant at Tenant's own cost and
expense. At no time shall the Tenant place any waste of any kind in any public
areas. If Tenant does so, the parties agree that everything so placed is
abandoned and of no value to Tenant, and Landlord may have the same removed and
disposed of at Tenant's expense. This remedy is in addition to any other
remedies the Landlord may have.
42. The basic rent payable by Tenant as heretofore provided herein shall be
subject to annual increases to cover increased real estate taxes and/or
operating expenses, if any, to be arrived at in the following manner:
(a) In the event that in any calendar year, the Landlord's real estate
taxes and/or operating expenses for the building of which the Demised Premises
forms a part shall exceed the real estate taxes and/or operating expenses for
the base year, the Tenant shall pay, as additional rent, such proportion of the
respective excess as the rentable area of the Demised Premises bears to the
total rentable area of said building, to wit: 4.3%.
-1-
19
(b) The real estate taxes shall be deemed to include school, real estate
taxes and assessments upon the land and building of which the Demised Premises
form a part. Tenant shall pay such excess of real estate taxes within thirty
(30) days after Landlord submits to Tenant evidence of Landlord's payment of the
tax and the Landlord's billing showing the computation of such excess. The tax
bills of the governing authority shall be deemed final and conclusive. Tenant
shall have no right to contest the amount or validity of any imposition.
However, in the event of a reduction in assessed valuation for a period for
which Tenant has paid excess real estate taxes, then Tenant shall be entitled to
a proportionate share of any reimbursement, less a proportionate share of any
expenses of the proceeding. In the event that Landlord does not receive separate
tax bills for the property of which the building and land containing the Demised
Premises are a part, the total tax ▇▇▇▇ shall be apportioned so that Tenant pays
his pro-rata share.
(c) For the purpose of determining any adjustments of the basic rent
under this Lease, the term "operating expenses" shall include the operating
expenses for the said building, its basement and sub-basement, the parking and
landscaped areas, and are defined to comprise the following, but only to the
extent that these items are paid for by the Landlord:
i. The wages and salaries of all employees engaged in the
operation, management and maintenance of the building, the
parking and landscaped areas, employees social security taxes
and any taxes which may be levied on such wages and salaries.
ii. All janitor and office supplies and materials used in the
operation and maintenance of the building.
iii. The cost of water and power, heating, lighting, ventilating
and air-conditioning the building.
iv. The cost of all maintenance and service agreements on
equipment including A.D.T. service, cleaning, window cleaning
and elevator maintenance.
v. Insurance premiums.
vi. The cost of repairs, improvements and general maintenance, of
the building, the parking and landscaped areas, exclusive of
expenses as alteration of premises for the accommodation of a
specific tenant or tenants.
vii. As soon as practicable after December 31st of each year
hereafter during the term of this Lease, Landlord shall cause
a certified public accountant to review its " operating
expenses" for the said building for said preceding 12 month
period and prepare a statement and computation of the
additional rental, if any, payable by the Tenant in accordance
with the provisions herein contained. A copy of such statement
of "operating expenses" and computation shall be delivered to
the Tenant. Tenant agrees to accept as final and determinative
the amount shown as due on said statement and agrees to pay
the same on present statement.
(d) All items of additional rent provided for in this agreement of lease
shall be payable when billed by Landlord to Tenant. Landlord may, at Landlord's
election, ▇▇▇▇ Tenant for one-twelfth (1/12th) of the anticipated increases
which shall be estimated by adding 8% to the expenses in the prior year.
Adjustment of the estimated increases shall be made at the end of each year when
the actual figures are available. Additional rent for the first and last year of
the term of the Lease shall be pro-rated. The obligation to pay the additional
rent accrued
-2-
20
during the last year of the term of the Lease shall survive the termination of
the Lease and be payable even though the calculations thereof are not made until
after the termination of the Lease. For the purpose of determining any
adjustments of the basic rent under this Lease, the term "operating expenses"
shall include the operating expenses for the said building, its basement and
sub-basement, the parking and landscaped areas, and are defined to comprise the
following, but only to the extent that these items are paid for by the Landlord.
43. Tenant shall require all of its personnel and visitors to park their
vehicles only in areas from time to time designated by Landlord as to areas for
such parking, if Landlord elects to so designate such areas. Tenant shall not
permit its employees, suppliers or invitees at all times to park trucks or
delivery vehicles in the parking areas. Landlord shall determine the area and
size of Tenant's parking. Tenant shall be allotted four (4) spaces for
automobiles.
44. All work that the Tenant does or shall do in the Demised Premises shall be
done with union labor and materials only, and shall at all times conform to the
standards for the buildings, and shall comply with all rules and regulations of
the municipal authorities having jurisdiction thereof and shall be free of all
mechanic's liens. Tenant shall not do any work without the prior written consent
of the Landlord.
45. Any partitions or installations that the Tenant may install, whether movable
or not, shall belong to the Landlord unless the Landlord advises to the
contrary, in which event the Tenant shall remove the same upon Tenant's removal
from the premises.
46. It is hereby expressly agreed and understood that no representations have
been made concerning this Lease and there have been no inducements by way of
statements or representations other than those contained herein, and that the
contents of any advertising brochures, literature or other media are hereby
expressly excluded from this Lease, and this Lease contains the entire agreement
between the parties.
47. Throughout the term of this Lease, the Tenant shall pay for electricity
consumed within the Demised Premises. The Landlord shall supply and pay for
electricity for those areas used in common by the Tenant herein and other
tenants. The Landlord shall similarly supply and pay for electricity consumed in
the heating, ventilating and air conditioning systems. In the event that
Tenant's consumption of electrical energy is not separately metered, Tenant
shall pay for Tenant's consumption of electrical energy as additional rent
hereunder in monthly installments in advance, in an amount based upon the
estimated electrical consumption of the Tenant. The estimated electrical
consumption may be compared as frequently as annually to the connected
electrical load within the Demised Premises, based upon full utilization during
the hours described in Paragraph 40, as calculated by a reputable independent
electrical engineer to be selected by the Landlord, at which time appropriate
adjustments shall be made to take effect retroactively. A copy of such
calculated electrical consumption and of the basic computations made in
calculating the same shall be delivered to the Tenant. Tenant agrees to accept
as final and determinative the calculated electrical consumption as prepared by
such engineer. Notwithstanding the foregoing, monthly installments of rent
attributable to Tenant's consumption of electric energy hereunder shall be
effective from the date electric service becomes available to the Tenant, at the
rate of $209.00 per month. Landlord may, at Landlord's election, install a
separate meter for the Tenant's premises, at Landlord's sole cost and expense,
in which event the Tenant shall pay for electricity as evidenced by such meter.
48. Tenant shall look solely to the estate and property of
-3-
21
Landlord in the land and buildings comprising the Demised Premises for the
collection of any judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default or breach by Landlord with respect
to any of the terms, covenants and conditions of this Lease to be observed
and/or performed by Landlord, and no other property or assets of Landlord shall
be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies in the event of a violation by Landlord of any
of the above specified provisions.
49. The Tenant acknowledges that it has been advised that the HVAC servicing the
Demised Premises is designed to operate based upon an occupancy of not more than
one person per 150 square feet of net useable area in the Demised Premises, and
agrees that Landlord shall not be liable for any failure to perform satisfactory
on the part of the HVAC in the event of any greater occupancy.
50. In measuring space within the Demised Premises, all measurements shall be to
the exterior of exterior walls and to the center line of interior walls.
Bathroom areas, elevator shafts, stairwells, elevator lobbies and duct space for
interfloor HVAC transmissions are excluded to determine the useable area and
that is divided by 85% to determine the rentable area.
51. In the event that the rental or additional rental reserved herein is not
received by the Landlord within five days after the date payment is due, Tenant
shall pay to Landlord as additional rent, 4% of the late rental payment as
compensation for the additional cost to Landlord resulting from such late
payment. This late charge shall apply despite any grace period provided for in
this Lease.
52. The rent for the first month of the term of the Lease for which rent is
payable shall be payable prior to Tenant's occupancy or prior to March 31, 1995,
whichever shall first occur.
53. The basic annual rental rate shall be payable as follows:
(a) For the period April 1, 1994 to March 31, 1995, the sum of SIXTEEN
THOUSAND TWO HUNDRED SEVENTY TWO DOLLARS ($16,272.00) per annum
($1,356.00 per month);
(b) For the period April 1, 1995 to March 31, 1996, the sum of TWENTY
ONE THOUSAND TWO HUNDRED SEVENTY SIX DOLLARS ($21,276.00) per
annum
($1,773.00 per month); and
(c) For the period April 1, 1996 to June 30, 1997, the sum of TWENTY
TWO THOUSAND FOUR HUNDRED TWENTY EIGHT DOLLARS ($22,428.00) per
annum
($1,869.00 per month).
54. Landlord agrees, at Landlord's sole cost and expense, to perform the
following work, labor and services and supply the material required therefor:
(a) Provide new carpeting throughout the entire space chosen by Tenant
from Landlord's building standard samples.
(b) Repaint entire suite in color selected by Tenant from Landlord's
building standard samples.
(c) Replace all stained ceiling tiles.
(d) Install pass-thru glass opening between two windowed offices.
(e) Secure door to unrented office with lock.
In all other respects, the Tenant accepts the premises in their "as is"
condition.
-4-
22
55. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 etc. or, where
permitted, pursuant to the terms of this Lease, shall be deemed without further
act or deed to have assumed all of the obligations arising under this Lease on
and after the date of such assignment. Any such assignee shall upon demand
execute and deliver to the Landlord an instrument confirming such assumption.
56. Tenant has deposited with Landlord by check subject to collection the sum of
$4,068.00 as security for the performance by the Tenant of the terms, covenants
and conditions of this Lease on the part of the Tenant to be performed. On
condition that the Tenant is not then in default under the terms of the Lease,
the sum of $522.00 is to be returned to the Tenant at the commencement of the
thirteenth (13th) month of the term of this Lease. The remaining $3,546.00
shall continue on deposit under this Lease for the balance of the Lease term in
accordance with the provisions of paragraph 34 above. In lieu of returning the
aforesaid sum of $522.00, the Landlord may apply the same on account of rent due
to the Landlord from the Tenant for the thirteenth (13th) month of the term of
the Lease.
57. Notwithstanding anything to the contrary in paragraph 47 above, payment at
the rate of $209.00 per month for the consumption by the Tenant of electric
energy shall be deemed included in the basic annual rent set forth in paragraph
53 for the period April 1, 1994 to March 31, 1995 only. Notwithstanding anything
heretofore said in this paragraph 57, this paragraph shall be deemed deleted and
of no further force or effect as if never written for the period commencing
April 1, 1995 and for the balance of the term of this Lease.
58. The provisions of paragraph 3 to the contrary notwithstanding:
(a) Landlord's approval of contractors or mechanics shall not
be unreasonably withheld or delayed.
(b) The Workmen's Compensation, general liability and
personal and property damage insurance shall be such as the Landlord may
reasonably require.
(c) Tenant may discharge any mechanic's lien filed by satisfying the
same.
59. The provisions of paragraph 4 to the contrary notwithstanding, Landlord
agrees to exercise due diligence and take reasonable measures to minimize any
inconvenience, annoyance or injury arising from the performance of any such
repairs, alterations, additions or improvements, but the foregoing shall not
required the Landlord to perform the same on an overtime basis.
60. To the last sentence of paragraph 8, there shall be added the following:
"which notice shall be given promptly following the commencement of any such
action or proceeding."
61. The provisions in paragraph 10 to the contrary notwithstanding, Tenant shall
have the right to make a claim (separate and apart from the claim of Owner), for
the value of: (i) improvements, alterations and additions made to the Demised
Premises by Tenant at Tenant's expense, as long as they are not replacements of
any improvements, alterations or additions previously existing in the Demised
Premises or for which Owner gave Tenant any credit or allowances; and (ii)
Tenant's furniture, fixtures, machinery and equipment contained in the Demised
Premises and for expenses (including but not limited to moving expenses and
attorneys' fees) incurred by Tenant as a result of any such proceedings.
Notwithstanding the foregoing, in no event shall any award to Tenant result in
Owner receiving an award in a lesser amount than it would have received if
Tenant had not applied for and received its award.
-5-
23
62. The provisions of paragraph 13 to the contrary notwithstanding, Landlord
hereby agrees that (except in the case of an emergency) Landlord shall not
exercise its right of entry under this Article without prior notice to Tenant
(which may be oral and telephonic) and, in any event, only during Tenant's
business hours. Landlord, in exercising any such right of entry or making such
repairs, replacements and improvements or performing any work in the Demised
Premises shall use reasonable efforts (but Landlord shall not be obligated to
perform work on an overtime or premium pay basis) to minimize its interference
with the conduct of Tenant's business in the Demised Premises.
63. The provisions of paragraph 16(a) and 17(1) to the contrary notwithstanding,
Tenant shall have twenty (20) days in which to have any involuntary bankruptcy
proceeding dismissed.
64. With respect to the discount rate set forth in paragraph 16(b), the
percentage shall be changed from four (4%) percent to eight (8%) percent.
65. The provisions of paragraph 18 and 19 to the contrary notwithstanding,
Tenant shall have fifteen (15) days after notice within which to cure any
violation of the Lease which does not require the payment of a sum of money only
provided that if the performance of such obligation, by its nature, cannot be
fully performed within such fifteen (15) day period, Tenant shall not be in
default if Tenant has promptly commenced or procured commencement of the same
and proceeds expeditiously and continually in good faith.
66. Tenant shall be entitled to ingress to, and egress from, the Demised
Premises through the public portions of the building, except at certain times as
may otherwise be specifically set forth in the Lease.
67. The provisions of paragraph 33 to the contrary
notwithstanding:
(a) Notice of any additional rules or regulations shall be in writing
and shall become effective on the tenth (10th) day following the giving of such
notice; and
(b) The Landlord agrees not to enforce the rules and regulations in a
manner which unreasonably discriminates against the Tenant.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
MIKE'S ORIGINAL, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇, President
----------------------------
-6-
24
AMENDMENT
AGREEMENT made as of the 6th day of February 1995 by and between ▇▇▇▇▇▇ ▇.
AZINN, having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Landlord") and MIKE'S ORIGINAL, INC., having an
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to
as "Tenant").
W I T N E S S E T H :
WHEREAS, the parties hereto as Landlord and Tenant respectively entered
into an Agreement of Lease (the "Lease") with respect to Suite 402 in the
building known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Original
Premises"), as more fully described in the Lease; and
WHEREAS, the parties hereto desire to expand the Original Premises and
modify the Lease as hereinafter provided.
NOW THEREFORE, in consideration of the premises, IT IS AGREED AS FOLLOWS:
1. The Original Premises are, as of the Effective Date hereof, expanded to
include the additional premises ("Additional Premises") shown on the plan
annexed hereto as Exhibit "A".
2. Commencing the Effective Date hereof , the annual basic rental rate
shall be increased by the sum of FIVE THOUSAND SEVEN HUNDRED TWENTY FOUR DOLLARS
($5,724.) ($477.00 per month).
3. On and after the Effective Date, Tenant's proportionate share as defined
in the Lease shall be increased by 1% to 5.3%, and Tenant's allocation of
parking shall be increased by space for 1 automobile.
4. Tenant represents to Landlord that Tenant dealt with no broker in
connection with this Expansion Agreement.
5. The Landlord shall not be required to perform any work, labor or
services or supply any materials to prepare the Additional Premises for Tenant's
occupancy, Tenant agreeing to accept the same in their "as is" condition, except
as set forth in the annexed work letter.
6. Notwithstanding anything aforesaid to the contrary, the Effective Date
hereof shall be the earlier of: (i) the date that Tenant takes occupancy in
whole or in part of the Additional Premises: or (ii) the date Landlord's work as
set forth in paragraph 5 hereof and the annexed work letter is substantially
completed and possession of the Additional Premises by the Landlord to the
Tenant shall be evidenced by written notice given by the Landlord to the Tenant
stating that the work to be performed in paragraph 5 hereof has been
substantially completed and the Additional Premises are ready for occupancy by
the Tenant. The parties shall execute an agreement setting forth the Effective
Date upon which the obligation of the Tenant for base annual rent as set forth
in paragraph 2 above with respect to the Additional Premises shall have
commenced. If such Effective Date is not the first day of a calendar month, the
Tenant shall pay pro rata rent in advance for the period from the Effective Date
to the first day of such following calendar month. On and after the first day of
such following calendar month, Tenant shall pay rent as provided in paragraph 2
of this Agreement. For the purposes of this paragraph, "substantial completion"
shall be defined and construed to mean completion of all work to be performed by
Landlord except such items as do not materially interfere with the use of the
Additional Premises by the Tenant for the purpose intended in the Lease. With
respect to "undone" items, Landlord agrees to pursue the completion of the same
continuously and in good faith.
7. The term of the Lease with respect to the Additional Premises shall
terminate and expire as provided in the Lease for the Original Premises.
8. Except as herein modified, the terms, covenants and conditions of the
Lease are hereby ratified, confirmed and agreed to and shall continue in full
force and effect with respect to the Original Premises and the Additional
Premises.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
first day above written.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
MIKE'S ORIGINAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
25
EXHIBIT B
Work Letter
Mike's Original - 259 rentable square feet
1. Create new door from new front office to existing open area, as shown on
attached plan.
2. Replace stained ceiling tiles.
3. Finish off (trim up) existing sheetrock wall that divided the two rooms,
as shown on attached plan.
4. Carpet entire cross-hatched area, as shown on the attached plan, to
match existing color. (Iced Blue #3007 - 20 oz.)
5. Print Walls in cross-hatched area, as shown on the attached plan, to
match existing color. (Atrium White -▇▇▇▇▇▇▇▇ ▇▇▇▇▇)
6. Provide that existing electric in cross - hatched area on attached plan
is in working order.
7. Separate electric to provide overhead lighting in each office with a
light switch in each office.