Exhibit 10.4
Lease made as of the 28th day of September 1999, between ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
ASSOCIATES
hereinafter referred to as "Landlord" or "Lessor", and TOYMAX INC.
a New York Corporation
hereinafter referred to as "Tenant" or "Lessee".
Witnesseth: Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord
ROOMS 622 through 654
(said space is hereinafter called the "premises") in the building known as THE
INTERNATIONAL TOY CENTER South located at ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇ , with a mailing
address of THE INTERNATIONAL TOY CENTER, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ("▇▇▇ building") in
the County of ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, for a term of ten (10) years
and five (5) months , to commence on the 1st day of December 1999, and to expire
on the 30th day of April 2010 , or until such term shall sooner end as in
Article 12 and elsewhere herein provided, both dates inclusive, at a fixed
annual rental (subject to Articles 23 and 41) at the annual rate of
(As more particularly described in Article 42 hereof)
payable in equal monthly installments in advance on the first day of each month,
except that the first installment of rent due under this lease shall be paid by
Tenant upon its execution of this lease, unless this lease, be a renewal.
Landlord and Tenant covenant and agree:
PURPOSE.
1. Tenant shall use and occupy the premises only for offices and wholesale
showrooms relating to Tenant's toy business for no other purpose.
RENT AND ADDITIONAL RENT.
2. Tenant agrees to pay rent as herein provided at the office of Landlord or
such other place as Landlord may designate, payable in United States legal
tender, by cash, or by good and sufficient check drawn on a New York City
Clearing House Bank, and without any set off or deduction whatsoever. Any
sum other than fixed rent payable hereunder shall be deemed additional rent
and due on demand.
ASSIGNMENT.
3. Neither Tenant nor Tenant's legal representatives or successors in interest
by operation of law or otherwise, shall assign, mortgage or otherwise
encumber this lease, or sublet or permit all or part of the premises to be
used by others, without the prior written consent of Landlord in each
instance. The transfer of a majority of the issued and outstanding capital
stock of any corporate tenant or sublessee of this lease or a majority of
the total interest in any partnership tenant or sublessee, however
accomplished, and whether in a single transaction or in a series of related
or unrelated transactions, and the conversion of a tenant or sublessee
entity to either a limited liability company or a limited liability
partnership shall be deemed an assignment of this lease or of such sublease.
The merger or consolidation of a corporate tenant or sublessee where the net
worth of the resulting corporation is less than the net worth of the tenant
or sublessee immediately prior to such merger or consolidation shall be
deemed an assignment of this lease or of such sublease. If without
Landlord's written consent this lease is assigned, or the premises are
sublet or occupied by anyone other than Tenant, Landlord may accept the rent
from such assignee, subtenant or occupant, and apply the net amount thereof
to the rent herein reserved, but no such assignment, subletting, occupancy ,
or acceptance of rent shall be deemed a waiver of this covenant. Consent by
Landlord to an assignment or subletting shall not relieve Tenant from the
obligation to obtain Landlord's written consent to any further assignment or
subletting. In no event shall any
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permitted sublessee assign or encumber its sublease or further sublet all or
any ortion of its sublet space, or otherwise suffer or permit the sublet
space or any part thereof to be used or occupied by others, without
Landlord's prior written consent in each instance. A modification, amendment
or extension of a sublease shall be deemed a sublease.
DEFAULT.
4. Landlord may terminate this lease on five (5) days' notice: (a) if rent or
additional rent is not paid within five (5) days after written notice form
Landlord; if Tenant shall have failed to cure a default in the performance
of any covenant of this lease (except the payment of rent), or any rule or
regulation hereinafter set forth, within ten (10) days after written notice
thereof from Landlord, or if default cannot be completely cured in such
time, if Tenant shall not promptly proceed to cure such default within said
ten (10) days, or shall not complete the curing of such default with due
diligence; or (c) when and to the extent permitted by law, if a petition in
bankruptcy shall be filed or against Tenant or if Tenant shall make a
general assignment for the benefit of creditors, or receive the benefit of
any insolvency or reorganization act; or (d) if a :receiver or trustee is
appointed for any portion of Tenant's property and such appointment is not
vacated within twenty (20) days; or (e) if an execution or attachment shall
be issued under which the premises shall be taken or occupied or attempted
to be taken or occupied by anyone other than Tenant; or (f) if the premises
become and remain vacant or deserted for a period often (10) days; or (g) if
Tenant shall default beyond any grace period under any other lease between
Tenant and Landlord; or (h) if Tenant shall fail to move into or take
possession of the premises within fifteen (15) days after commencement of
the term of this lease.
At the expiration of the five (5) day notice period, this lease and any
rights of renewal or extension thereof shall terminate as completely as if
that were the date originally fixed for the expiration of the term of this
lease, but Tenant shall remain liable as hereinafter provided.
RELETTING, ETC.
5. If Landlord shall re-enter the premises on the default of Tenant, by summary
proceedings or otherwise: (a) Landlord may relet the premises or any part
thereof as Tenant's agent, in the name of Landlord, or otherwise, for a term
shorter or longer than the balance of the term of this lease, and may grant
concessions or free rent. (b) Tenant shall pay Landlord any deficiency
between the rent hereby reserved and the net amount of any rents collected
by Landlord for the remaining term of this lease, through such reletting.
Such deficiency shall become due and payable monthly, as it is determined.
Landlord shall have no obligation to re-let the premises, and its failure or
refusal to do so, or failure to collect rent on reletting, shall not affect
Tenant's liability hereunder. In computing the net amount of rents collected
through such re-letting, Landlord may deduct all expenses incurred in
obtaining possession or reletting the premises, including legal expenses and
fees, brokerage fees, the cost of restoring the premises to good order, and
the cost of all alterations and decorations deemed necessary by Landlord to
effect re-letting. In no event shall Tenant be entitled to a credit or
repayment for rerental income which exceeds the sums payable by Tenant
hereunder or which covers a period after the original term of this lease.
(c) Tenant hereby expressly waives any right of redemption granted by any
present or future law. "Re-enter" and "reentry" as used in this lease are
not restricted to their technical legal meaning. In the event of a breach or
threatened breach of any of the covenants or provisions hereof Landlord
shall have the right of injunction. Mention herein of any particular remedy
shall not preclude Landlord from any other available remedy (d) Landlord
shall recover as liquidated damages, in addition to accrued rent and other
charges, if Landlord's re-entry is the result of Tenant's bankruptcy,
insolvency, or reorganization, the full rental for the maximum period
allowed by any act relating to bankruptcy, insolvency or reorganization.
If Landlord re-enters the premises for any cause, or if Tenant abandons or
vacates the premises, and after the expiration of the term of this lease,
any property left in the premises by Tenant shall be deemed to have been
abandoned by Tenant, and Landlord shall have the right to retain or dispose
of such property in any manner without any obligation to account therefor to
tenant. If Tenant shall at any time default hereunder, and if
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Landlord shall institute an action or summary proceedings against Tenant
based upon such default, then Tenant will reimburse Landlord for the legal
expenses and fees thereby incurred by Landlord.
LANDLORD MAY CURE DEFAULTS.
6. If Tenant shall default in performing any covenant or conditions of this
lease, Landlord may perform the same for the account of Tenant, and if
Landlord, in connection therewith, or in connection with any default by
Tenant, makes any expenditures or incurs any obligations for the payment of
money, including but not limited to attorney's fees, such sums so paid or
obligations incurred shall be deemed to be additional rent hereunder, and
shall be paid by Tenant to Landlord within five (5) days of rendition of any
▇▇▇▇ or statement therefor, and if Tenant's lease term shall have expired at
the time of the making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Landlord as damages.
ALTERATIONS.
7. Tenant shall make no decoration, alteration, addition or improvement in the
premises, without the prior written consent of Landlord, and then only by
contractors or mechanics and in such manner and with such materials as shall
be approved by Landlord. All alterations additions or improvements to the
premises, including window and central air-conditioning equipment and duct
work, except movable office furniture and equipment installed at the expense
of Tenant, shall, unless Landlord elects otherwise in writing, become the
property of Landlord, and shall be surrendered with the premises at the
expiration or sooner termination of the term of this lease. Any such
alterations, additions and improvements which Landlord shall designate,
shall be removed by Tenant and any damage repaired, at Tenant's expense,
prior to the expiration of the term of this lease.
LIENS.
8. Prior to commencement of its work in the demised premises, Tenant shall
obtain and deliver to Landlord a written letter of authorization, in form
satisfactory to Landlord's counsel, signed by architects, engineers and
designers to become involved in such work, which shall confirm that any of
their drawings or plans are to be removed from any filing with governmental
authorities, on request of Landlord, in the event that said architect,
engineer, or designer thereafter no longer is providing services with
respect to the demised premises. With respect to contractors,
subcontractors, materialmen and laborers, and architects, engineers and
designers, for all work or materials to be furnished to Tenant at the
premises, Tenant agrees to obtain and deliver to Landlord written and
unconditional waiver of mechanics lien upon the premises or the building,
after payments to the contractors, etc., subject to any then applicable
provisions of the Lien law. Notwithstanding the foregoing, Tenant at its
expense shall cause any lien filed against the premises or the building, for
work or material claimed to have been furnished to Tenant, to be discharged
of record within twenty (20) days after notice thereof.
REPAIRS.
9. Tenants shall take good care of the premises and the fixtures and
appurtenances therein, and shall make all repairs necessary to keep them in
good working order and conditions, including structural repairs when those
are necessitated by the act, omission or negligence of Tenant or its agents,
employees or invitees. During the term of this lease, Tenant may have the
use of any air-conditioning equipment located in the premises, and Tenant,
at its own cost and expense, shall maintain and repair such equipment and
shall reimburse Landlord, in accordance with Article 41 of this lease, for
electricity consumed by the equipment. The exterior walls of the building,
the windows and the portions of all window ▇▇▇▇▇ outside same and areas
above any hung ceiling are
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not part of the premises demised by this lease, and Landlord hereby reserves
all rights to such parts of the building. LESSOR SHALL MAINTAIN THE
STRUCTURAL PORTIONS OF THE PREMISES IN GOOD REPAIR AT ITS EXPENSE EXCEPT IN
THE CASES OF DAMAGE CAUSED BY LESSEE NEGLIGENCE.
DESTRUCTION.
10. If the premises shall be partially damaged by fire or other or other
casualty, the damage Shall be repaired at the expense of Landlord, without
prejudice to the rights of subrogation, if any, of Landlord's insurer.
Landlord shall not be required to repair or restore any of the Tenant's
property or any alteration, or leasehold improvement made by or for Tenant
at Tenant's expense. The rent shall ▇▇▇▇▇ in proportion to the portion of
the premises not usable by Tenant. Landlord shall not be liable to Tenant
for any delay in restoring the premises, Tenant's sole remedy being the
right to an abatement of rent, as above provided. If the premises are
rendered wholly untenantable by fire or other casualty and if Landlord shall
decide not to restore the premises, or if the building shall be so damaged
that Landlord shall decide to demolish it or to rebuild it (whether or not
the premises have been damaged), Landlord my within ninety (90) days after
such fire or other cause give written notice to Tenant of its election that
the term of this lease shall automatically expire no less than ten (10) days
after such notice is given. 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, Landlord 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 and also, provided that such a policy can
be obtained without additional premiums. Tenant hereby expressly waives the
provisions of Section 227 of the Real Property law and agrees that the
foregoing provisions of this Article shall govern and control in lieu
thereof.
END OF TERM.
11. Tenant shall surrender the premises to Landlord at the expiration or sooner
termination of this lease in good order and condition, except for reasonable
wear and tear and damage by fire or other casualty, and Tenant shall remove
all of its property. Tenant agrees it shall indemnify and save Landlord
harmless against all costs, claims, loss or liability resulting from delay
by Tenant in so surrendering the premises, including, without limitation,
any claims made by any succeeding tenant founded on such delay.
Additionally, the parties recognize and agree that other damage to Landlord
resulting from any failure by Tenant timely to surrender the premises will
be substantial, will exceed the amount of monthly rent theretofore payable
hereunder, and will be impossible of accurate measurement. Tenant therefore
agrees that if possession of the premises is not surrendered to Landlord
within one (1) day after the date of the expiration or sooner termination of
the term of this lease, then Tenant will pay Landlord as liquidated damages
for each month and for each portion of any month during which Tenant holds
over in the premises after expiration or termination of the term of this
lease, a sum equal to three times the average rent and additional rent which
was payable per month under this lease during the last six months of the
term thereof. The aforesaid obligations shall survive the expiration or
sooner termination of the term of this lease. At any time during the term of
this lease, Landlord may exhibit the premises to prospective purchasers or
mortgagees of Landlord's interest therein. During the last year of the term
of this lease, Landlord may exhibit the premises to prospective tenants upon
reasonable advance notice and without interfering in Lessee normal business
activities.
SUBORDINATION AND ESTOPPEL, ETC.
12. Tenant has been informed and understands that Landlord is the Tenant under a
lease of the land and entire building of which the premises form a part
(hereinafter called the "Master Lease"). This lease is and shall be
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subject and subordinate to the Master Lease and all other ground and
underlying leases and to all mortgage which may now or hereafter affect such
leases or the real property of which the premises form a part, and to all
renewals, modifications, consolidations, replacements and extensions
thereof. This Article shall be self-operative and no further instrument of
subordination shall be necessary. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Landlord may request.
Tenant hereby appoints Landlord as tenant's irrevocable attorney-in-fact to
execute any document of subordination on behalf of Tenant. In the event that
the Master Lease or any other ground or underlying lease is terminated or
any mortgage foreclosed, this lease shall not terminate or be terminable by
Tenant (except as hereinafter provided as to Master Lease expiration of
term) unless Tenant was specifically named in any termination or foreclosure
judgment or final order. In the event that the Master Lease or any other
ground or underlying lease is terminated as aforesaid, or expires ( as
hereinafter provided), or if the interest of Landlord under this lease are
transferred by reason of or assigned in lieu of foreclosure or other
proceedings for enforcement of any mortgage, or if the holder of any
mortgage acquires a lease in substitution therefore, then tenant will, at
the option to be exercised in writing by the landlord under the Master Lease
or such purchaser, assignee or lessee, as the case may be, (I) attorn to it
and will perform for its benefit all the terms, covenants and conditions of
this lease on the Tenant's part to be performed with the same force and
effect as if said landlord or such purchaser, assignee or lessee, were the
landlord originally named in this lease, or (ii) enter into a new lease with
said lessor or such purchaser, assignee or lessee, as landlord, for the
remaining term of this lease and otherwise on the same terms, conditions and
rentals as herein provided. If the current term of the Master Lease shall
expire prior to the date set forth herein for the expiration of this lease,
then, unless Landlord, at its sole option, shall have elected to extend or
renew the term of the Master Lease, or unless the lessor under the Master
Lease elects that the Tenant attorn or enter into a new lease as aforesaid,
the term of this lease shall expire on the date of expiration of the Master
Lease, notwithstanding the later expiration date hereinabove set forth. If
the Master Lease is renewed, then the term of this lease shall expire as
hereinabove set forth. From time to time, Tenant, on at least ten (10) days'
prior written request by Landlord will deliver to Landlord a statement in
writing certifying that this lease is unmodified and in full force and
effect (or if there shall have, been modifications, that the same is in full
force and effect as modified and stating the modification) and the dates to
which the rent and other charges have been paid and stating whether or not
the Landlord is in default in performance of any covenant, agreement, or
condition contained in this lease and, if so, specifying each such default
of which Tenant may have knowledge.
CONDEMNATION.
13. If the whole of any substantial part of the premises shall be condemned by
eminent domain or acquired by private purchase in lieu thereof for any
public or quasi-public purpose, this lease shall terminate on the date of
the vesting of title through such proceeding or purchase, and Tenant shall
have no claim against Landlord for the value of any unexpired portion of the
term of this lease, nor shall Tenant be entitled to any part of the
condemnation award or private purchase price. If less than a substantial
part of the premises is condemned, this lease shall not terminate, but rent
shall ▇▇▇▇▇ in proportion to the portion of the premises condemned.
REQUIREMENTS OF LAW.
14. (a) Tenant at its expense shall comply with all laws, orders and regulations
of any governmental authority having or asserting jurisdiction over the
premises, which shall impose any violation, order or duty upon Landlord or
Tenant with respect to the premises or the use or occupancy thereof
including, without limitation, compliance in the premises with all City,
State and Federal laws, rules and regulations on the disabled or
handicapped, on fire safety and on hazardous materials. The foregoing shall
not require Tenant to do structural work.
(b) Tenant shall require every person engaged by him to clean any window in
the premises, from the outside, to use the equipment and safety devices
required by Section 202 of the labor law and the rules of any governmental
authority having or asserting jurisdiction.
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(c) Tenant at its expense shall comply with all requirements of the New York
Board of Fire Underwriters, or any other similar body affecting the premises
and shall not use the premises in a manner which shall increase the rate of
fire insurance of Landlord or any other tenant, over that in effect prior to
this lease. If Tenant's use of the premises increases the fire insurance
rate, Tenant shall reimburse Landlord for all such increased costs. That the
premises are being used for the purpose set forth in Article I hereof shall
not relieve Tenant from the foregoing duties, obligations and expenses.
CERTIFICATE OF OCCUPANCY.
15. Tenant will at no time use or occupy the premises in violation of the
certificate of occupancy issued for the building. 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 Landlord that such use
is lawful or permissible in the premises under the certificate of occupancy
for the building.
POSSESSION.
16. If Landlord shall be unable to give possession of the premises on the
commencement date of the term because of the retention of possession of any
occupant thereof alteration construction work, or for any other reason
except as hereinafter provided, Landlord shall not be subject to any
liability for such failure. In such event, this lease shall stay in full
force and effect, without extension of its term. However, the rent hereunder
shall not commence until the premises are available for occupancy by Tenant.
If delay in possession is due to work, changes or decorations being made by
or for Tenant, or is otherwise caused by Tenant, there shall be no rent
abatement and the rent shall commence on the date specified in this lease.
If permission is given to Tenant to occupy the demised premises or other
premises prior to the date specified as the commencement of the term, such
occupancy shall be deemed to be pursuant to the terms of this lease, except
that the parties shall separately agree as to the obligation of Tenant to
pay rent for such occupancy. The provisions of this Article are intended to
constitute an "express provision to the contrary" within the meaning of
Section 223 (a), New York Real Property Law.
QUIET ENJOYMENT.
17. Landlord covenants that if Tenant pays the rent and performs all of Tenant's
other obligations under this lease, Tenant may peaceably and quietly enjoy
the demised premises, subject to the terms, covenants and conditions of this
lease and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
RIGHT OF ENTRY.
18. Tenant shall permit Landlord to erect and maintain pipes and conduits in and
through the premises. Landlord or its agents shall have the right to enter
or pass through the premises at all times, by master key, by reasonable
force or otherwise, to examine the same, and to make such repairs,
alterations or additions as it may deem necessary or desirable to the
premises or the building, and to take all material into and upon the
premises that may be required therefor. Such entry and work shall not
constitute an eviction of Tenant in whole or in part, shall not be grounds
for any abatement of rent, and shall impose no liability on Landlord by
reason of inconvenience or injury to Tenant's business. Landlord shall have
the right at any time, without the same constituting an actual or
constructive eviction, and without incurring any liability to Tenant, to
change the arrangement and/or location of entrances or passageways, windows,
corridors,
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elevators, stairs, toilets, or other public parts of the building, and to
change the name or number by which the building is known.
VAULTSPACE.
19. Anything contained in any plan or blueprint to the contrary notwithstanding,
no vault or other space not within the building property line is demised
hereunder. Any use of such space by Tenant shall be deemed to be pursuant to
a license, revocable at will by Landlord, without diminution of the rent
payable hereunder. If Tenant shall use such vault space, any fees taxes or
charges made by any governmental authority for such space shall be paid by
Tenant.
INDEMNITY.
20. Tenant shall indemnify, defend and save Landlord harmless from and against
any liability or expense arising from the use or occupation of the premises
by Tenant, or anyone on the premises with Tenant's permission, or from any
breach of this lease.
LANDLORD'S LIABILITY
21. This lease and the obligations of Tenant hereunder shall in no way be
affected because Landlord is unable to fulfill any of its obligations or to
supply any service, by reason of strike or other cause not within Landlord's
control. Landlord shall have the right, without incurring any liability to
Tenant, to stop any service because of accident or emergency, or for
repairs, alterations or improvements, necessary or desirable in the judgment
of Landlord, until such repairs, alterations or improvements shall have been
completed. Landlord shall not be liable to Tenant or anyone else, for any
loss or damage to person, property or business, unless due to the negligence
of Landlord nor shall Landlord be liable for any latent defect in the
premises or the building. Tenant, during the term of this lease, shall carry
public liability and property damage insurance, from a company authorized to
do business in New York, with limitations acceptable to Landlord, which
policy or policies shall name the Landlord and its designees as additional
insureds. Evidence of the policies, and of their timely renewal, shall be
delivered to Landlord. All such insurance shall contain an agreement by the
insurance company that the policy or policies will not be canceled for the
coverage changed, without thirty (30) days' prior written notice to the
Landlord. Tenant agrees to look solely to Landlord's estate and interests in
the land and building, or the lease of the building or of the land and
building, and the demised premises, for the satisfaction any right or remedy
of Tenant for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord, in the event of any liability 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 under or with respect to this lease, the relationship of
landlord and tenant hereunder, or Tenant's use and occupancy of the demised
premises or any other liability of Landlord to Tenant (except for
negligence).
CONDITION OF PREMISES.
22. Tenant acknowledges that Landlord has made no representation or promise,
except as herein expressly se forth. Tenant agrees to accept the premises
"as is", except for any work which Landlord has expressly agreed in writing
to perform.
COST OF LIVING ADJUSTMENTS.
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23. The fixed annual rent reserved in this lease and payable hereunder shall be
adjusted, as of the times and in the manner set forth in this Article;
(a) Definitions: For the purpose of this Article, the following definitions
shall apply:
(i) The term "Base Year" shall mean the full calendar year during which
the term of this lease commences.
(ii) The term "Price Index" shall mean the "Consumer Price Index"
published by the Bureau of Labor Statistics of the U.S. Department
of Labor, All Items, New York, N.Y.--Northeastern, N.J., all urban
consumers (presently denominated "CPI-U), or a successor or
substitute index appropriately adjusted.
(iii) the term "Price Index" for the Base Year" shall mean the average
of the monthly All Items Price Indexes for each of the 12 months of
the Base Year.
(b) Effective as of each January and July subsequent to the Base YEAR, there
SHALL be made A COST of living adjustment of the fixed annual rental
rate payable hereunder. The July adjustment shall be based on the
percentage difference between the Price Index for the preceding month of
June and the Price Index for the Base Year. The January adjustment shall
be based on such percentage difference between the Price Index for the
preceding month of December and the Price Index for the Base Year.
(i) In the event the Price Index for June in any calendar year during
the term of this lease reflects an increase over the Price Index for
the Base Year, then the fixed annual rent herein provided to be paid
as of July 1st following such month of June (unchanged by any
adjustments under this Article) shall be multiplied by the
percentage difference between the Price Index for June and the Price
Index for the Base Year, and the resulting sum shall be added to
such fixed annual rent, effective as of such July 1st. Said adjusted
fixed annual rent shall thereafter be payable hereunder, in equal
monthly installments, until it is readjusted pursuant to the terms
of this lease.
(ii) In the event the Price Index for December in any calendar year
during the term of this lease reflects an increase over the Price
Index for the Base Year `, then the fixed annual rent herein
provided to be paid as of the January 1st following such month of
December (unchanged by any adjustments under this Article) shall be
multiplied by the percentage difference between the Price Index for
December and the Price Index for the Base Year, and the resulting
sum shall be added to such fixed annual rent effective as of such
January 1st. Said adjusted fixed annual rent shall thereafter be
payable hereunder, in equal monthly installments, until it is
readjusted pursuant to the terms of this lease.
The following illustrates the intentions of the parties hereto as to the
computation of the aforementioned cost of living adjustment in the annual rent
payable hereunder.
Assuming that said fixed annual rent is $10,000, that the Price Index
for the Base Year was 102.0 and the Price Index for the month of June in a
calendar year following the Base Year was 105.0, then the percentage
increase thus reflected, i.e. 2.941% (3.0/102) would be multiplied by
$10,000, and said fixed annual rent would be increased by $294.10 effective
as of July 1st of said calendar year.
In the event that the Price Index ceases to use 1982-84=100 as the basis of
calculation, or if a substantial change is made in the terms or number of items
contained in the Price Index, then the Price Index shall be adjusted to the
figure that would have been arrived at had the manner of computing the Price
Index in effect at the date of this lease not been altered. In the event such
Price Index (or a successor or substitute index) is not available, a reliable
governmental or other non-partisan publication evaluating the information
theretofore used in determining the Price Index shall be used.
(c) Landlord will cause statements of the cost of living adjustments
provided for in subdivision (b) to be prepared in reasonable detail and
delivered to Tenant.
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(d) In no event shall the fixed annual rent originally provided to be paid
under this lease (exclusive of the adjustments under this Article) be
reduced by virtue of this Article.
(e) Any delay or failure of Landlord, beyond July or January of any year,
computing or billing for the rent adjustments hereinabove provided,
shall not constitute a waiver of or in any way impair the continuing
obligations of Tenant to pay such rent adjustments hereunder.
(f) Notwithstanding any expiration or termination of this lease prior to the
lease expiration date (except in the
case of a cancellation by mutual agreement) Tenant's obligation to pay
rent as adjusted under this Article shall continue and shall cover all
periods up to the lease expiration date, and shall survive any
expiration or termination of this lease.
TAX ESCALATION.
24. Tenant shall pay to Landlord, as additional rent, tax escalation in
accordance with this Article:
(a) For purposes of this lease the rentable square foot area of the
presently demised premises shall be deemed to be 14,546 square feet.
(b) Definitions: For the purposes of this Article, the following definitions
shall apply:
(i) The term "base tax year" as hereinafter set forth for the
determination of real estate tax escalation, shall mean the New York
City real estate tax year commencing JULY 1, 1999 and ending June
30, 2000.
(ii) The term "The Percentage", for purposes of computing tax
escalation, shall mean two decimal four one four (2.414%). The
percentage has been computed on the basis of a fraction, the
numerator of which is the rentable square foot area of the office
and commercial space in the building project. The parties
acknowledge and agree that the total rentable square foot area of
the demised premises and the denominator of which is the total
rentable square foot area of the office and commercial space in the
building project shall be deemed to be 602,419 Sq. Ft.
(iii) The term "the building project" shall mean the aggregate combined
parcel of land on a portion of which are the improvements of which
the demised premises form a part, with all the improvements thereon,
said improvements being a part of the block and lot for tax purposes
which are applicable to the aforesaid land.
(iv) The term "comparative year" shall mean the twelve (12) months
following the base tax year, and each subsequent Period of twelve
(12) months (or such other Period of twelve (12) months occurring
during the term of this lease as hereafter may be duly adopted as
the tax year for real estate tax purposes by the City of New York).
(v) The term "real estate taxes" shall mean the total of all taxes and
special or other assessments levied, assessed or imposed at any time
by any governmental authority upon or against the building project,
and also any tax or assessment levied, assessed or imposed at any
time by any governmental authority in connection with the receipt of
income or rents from said building project to the extent that same
shall be in lieu of all or a portion of any of the aforesaid taxes
or assessments, or additions or increases thereof, upon or against
said building project. If, due to a future change in the method of
taxation or in the taxing authority, or for any other reason, a
franchise, income, transit, profit or other tax or governmental
imposition, however designated, shall be levied against landlord in
substitution in whole or in part for the real estate taxes, or in
lieu of additions to or increases of said real estate taxes, then
such
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franchise, income, transit, profit or other tax or governmental
imposition shall be deemed to be included within the definition of
"real estate taxes" for the purposes hereof. As to special
assessments which are payable over a period of time extending beyond
the term of this lease, only a pro rata portion thereof covering the
portion of the term of this lease unexpired at the time of the
imposition of such assessment, shall be included in "real estate
taxes". If by law, any assessment may be paid in installments, then,
for the purposes hereof (a) such assessment shall be deemed to have
been payable in the maximum number of installments permitted by law
and (b) there shall be included in real estate taxes, for each
comparative year in which such installments may be paid, the
installments of such assessment so becoming payable during such
comparative year, together with interest payable during such
comparative years.
(vi) Where more than one assessment is imposed by City of New York for
any tax year, whether denominated an "actual assessment" or a
"transitional assessment" or otherwise, then the phrases herein
"assessed value" and "assessments" shall mean whichever of the
actual, transitional or other assessment is designated by the City
of New York as the taxable assessment for that tax year.
(vii) The phrase "real estate taxes payable during the base tax year"
shall mean that amount obtained by multiplying the assessed value of
the land and buildings of the building project for the base tax year
by the tax rate for the base tax year for each $ 1 00 of such
assessed value.
(c) 1. In the event that the real estate taxes payable for any comparative
year shall exceed the amount of the real estate taxes payable during the
base tax year, tenant shall pay to landlord, as additional rent for such
comparative year, an amount equal to The Percentage of the excess.
Before or after the start of each comparative year Landlord shall
furnish to Tenant a statement of the real estate taxes payable for such
comparative year, and a statement of the real estate taxes payable
during the base tax year. If the real estate taxes payable for such
comparative tear exceed the real estate taxes payable during the base
tax year , additional rent for such comparative year, in an amount equal
to The Percentage of the excess, shall be due from Tenant to Landlord
within ten (10) days after receipt of the aforesaid statement. The
benefit of any discount for any earlier payment or prepayment of real
estate taxes shall accrue solely to the benefit of Landlord, and such
discount shall not be subtracted from the real estate taxes payable for
any comparative year.
Additionally, Tenant shall pay to Landlord, on demand, a sum equal to The
Percentage of any business improvement district assessment payable by the
building project.
2. Should the real estate taxes payable during the base tax year be reduced
by final determination of legal proceedings, settlement or otherwise,
then, the real estate taxes payable during the base tax year shall be
correspondingly revised, the additional rent theretofore paid or payable
hereunder for all comparative years shall be recomputed on the basis of
such reduction, and tenant shall pay to Landlord as additional rent,
within ten (10) days after being billed therefor, any DEFICIENCY BETWEEN
THE AMOUNT OF such ADDITIONAL RENT AS THERETOFORE computed and the
amount thereof due as the result of such recomputations. Should the real
estate taxes payable during the base tax year be increased by such final
determination of legal proceedings, settlement or otherwise, then
appropriate recomputation and adjustment also shall be made.
3. If after Tenant shall have made a payment of additional rent under this
subdivision -C- Landlord shall receive a refund of any portion of the
real estate taxes payable for any comparative year after the base tax
year on which such payment of additional rent shall have been based, as
a result of a reduction of such real estate taxes by final determination
of legal proceedings, settlement or otherwise, Landlord shall within ten
(10) days after receiving the refund pay to Tenant The Percentage of the
refund less The Percentage of expenses (including attorneys' and
appraisers' fees) incurred by Landlord in
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connection with any such application or proceeding. If prior to the
payment of taxes for any comparative year, Landlord shall have obtained
a reduction of that comparative year's assessed valuation of the
building project, and therefore of said taxes, then the term "real
estate taxes" for the comparative year shall be deemed to include the
amount of Landlord's expenses in obtaining such reduction in assessed
valuation, including attorney's and appraisers' fees.
4. The statements of the real estate taxes to be furnished by Landlord as
provided above shall be certified by Landlord and shall constitute a
final determination as between Landlord and Tenant of the real estate
taxes for the Periods represented thereby, unless Tenant within thirty
(30) days after they are furnished shall give a written notice to
Landlord that it disputes their accuracy or their appropriateness, which
notice shall specify the particular respects in which the statement is
inaccurate or inappropriate. If Tenant shall so dispute said statement
then, pending the resolution of such dispute, tenant shall pay the
additional rent to Landlord in accordance with the statement furnished
by Landlord.
5. In no event shall the fixed annual rent under this lease (exclusive of
the additional rents under this Article) be reduced by virtue of this
Article.
6. If the commencement date of the term of this lease is not the first day
of the first comparative year, then the additional rent due hereunder
for such first comparative year shall be a proportionate share of said
additional rent for the entire comparative year, said proportionate
share to be based upon the length of time that the lease term will be in
existence during such first comparative year. Upon the date of any
expiration or termination of this lease (except termination because of
Tenant's default) whether the same be the date hereinabove set forth for
the expiration of the term or any prior or subsequent date, a
proportionate share of said addition rent for the comparative year
during which such expiration or termination occurs shall immediately
become due and payable by Tenant to Landlord, if it was not theretofore
already billed and paid. The said proportionate share shall be based
upon the length of time that this lease shall have been in existence
during such comparative year. Landlord shall promptly cause statements
of said additional rent for that comparative year to be prepared and
furnished to lessee. Landlord and Tenant shall thereupon make
appropriate adjustments of amounts then owing.
7. Landlord's and Tenant's obligations to make the adjustments referred to
in subdivision (6) above shall survive any expiration or termination of
this lease.
8. Any delay or failure of lessor in billing any tax escalation hereinabove
provided shall not constitute a waiver of or in any way impair the
continuing obligation of lessee to pay such tax escalation hereunder.
SERVICES.
25. Tenant acknowledges that it has been advised that the cleaning contractor
for the building may be a division or affiliate of Landlord. Tenant agrees
to employ said contractor, or such other contractor as Landlord may from
time to time designate, for any waxing, polishing and other maintenance work
of the demised premises and of the Tenant's furniture, fixtures and
equipment, provided that the prices charged by said contractor are
comparable to the prices charged by other contractors for the same work.
Tenant agrees that it shall not employ any other cleaning and maintenance
contractor nor any individual, firm or organization for such purpose without
Landlord's prior written consent. If Landlord and Tenant cannot agree on
whether the prices being charged by the contractor designated by the
Landlord are comparable to those charged by other contractors, Landlord and
Tenant shall each obtain two bona fide bids for such work from reputable
contractors, and the average of the four bids thus obtained shall be the
standard of comparison.
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JURY WAIVER.
26. Landlord and Tenant hereby waive trial by jury in any ACTION, PROCEEDING OR
COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER arising out of or in any way
connected with this lease, the relationship of landlord and tenant, Tenant's
use or occupancy of the premises (except for personal injury or property
damage) or involving the right to any statutory relief or remedy. Tenant
will not interpose any counterclaim of any nature in any summary proceeding.
NO WAIVER, ETC.
27. No act or omission of Landlord or its agents shall constitute an actual or
constructive eviction, unless Landlord shall have first received written
notice of Tenant's claim and shall have had a reasonable opportunity to meet
such claim. In the event that any payment herein provided for by Tenant to
Landlord shall become overdue for a period in excess of ten (10) days, then
at Landlord's option a "late charge" shall become due and payable to
Landlord, as additional rent, from the date it was due until payment is made
at the following rates: for individual and partnership Tenants, said late
charge shall be computed at the maximum legal rate of interest; for
corporate or governmental entity Tenants the late charge shall be computed
at two percent per month unless there is an applicable maximum legal rate of
interest which then shall be used. No act or omission of Landlord or its
agents shall constitute an acceptance of a surrender of the premises, except
a writing signed by Landlord. The delivery of keys to Landlord or its agents
shall not constitute a termination of this lease or a surrender of the
premises. Acceptance by Landlord of less than the rent herein provided shall
at Landlord's option be deemed on account of earliest rent remaining unpaid.
No endorsement on any check, or letter accompanying rent, shall be deemed an
accord and satisfaction, and such check may be cashed without prejudice to
Landlord. No waiver of any provision of this lease shall be effective,
unless such waiver be in writing signed by Landlord. This lease contains the
entire agreement between the parties, and no modification thereof shall be
binding unless in writing and signed by the party concerned. Tenant shall
comply with the rules and regulations printed in this lease, and any
reasonable modifications thereof or additions thereto. Landlord shall not be
liable to Tenant for the violation of such rules and regulations by any
other tenant. Failure of Landlord to enforce any provision of this lease, or
any rule or regulation, shall not be construed as a waiver or any subsequent
violation of a provision of this lease, or any rule or regulation. This
lease shall not be affected by nor shall Landlord in any way be liable for
the closing, darkening or bricking up of windows in the premises, for any
reason, including as the result of construction on any property of which the
premises are not a part or by Landlord's own acts.
OCCUPANCY AND USE BY TENANT.
28(A). Tenant acknowledges that its continued occupancy of the demised premises,
and the regular conduct of its business therein, are of utmost importance to
the Landlord in the renewal of other leases in the building, in the renting
of vacant space in the building, in the providing of electricity, air
conditioning, steam and other services to the tenants in the building, and
in the maintenance of the character and quality of the tenants in the
building. Tenant therefore covenants and agrees that it will occupy the
entire demised premises, and will conduct its business therein in the
regular and usual manner, throughout the term of this lease. Tenant
acknowledges that Landlord is executing this lease in reliance upon these
covenants, and that these covenants are a material element of consideration
inducing the Landlord to execute this lease. Tenant further agrees that if
it vacates the demised premises or fails to so conducts its business
therein, at any time during the term of this lease, without the prior
written consent of the Landlord, then all rent and additional rent reserved
in this lease from the date of such breach to the expiration date of this
lease shall become immediately due and payable to Landlord.
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(B) The parties recognize and agree that the damage to Landlord resulting
from any breach of the covenants in subdivision (A) hereof will be
extremely substantial, will be far greater than the rent payable for the
balance of the term of this lease, and will be impossible of accurate
measurement. The parties therefore agree that in the event of a breach
or threatened breach of the said covenants, in addition to all of
Landlord's other rights and remedies, at law or in equity or otherwise,
Landlord shall have the right of injunction to preserve Tenant's
occupancy and use. The words "become vacant or deserted" as used
elsewhere in this lease shall include Tenant's failure to occupy or use
by this Article required.
(C) If Tenant breaches either of the covenants in subdivision (A) above,
and this lease be terminated because of such default, then, in addition
to Landlord's rights of reentry, restoration, preparation for and
rerental, and anything elsewhere In this lease to the contrary
notwithstanding, Landlord shall retain its right to judgment on and
collection of Tenant's aforesaid obligation to make a single payment to
Landlord of a sum equal to the total of all rent and additional rent
reserved for the remainder of the original term of this lease, subject
to future credit or repayment to Tenant in the event of any rerenting
of the premises by Landlord, after first deducting from rerental income
all expenses incurred by Landlord in reducing to judgment or otherwise
collecting Tenant's aforesaid obligation, and in obtaining possession
of restoring, preparing for and re-letting the premises. In no event
shall Tenant be entitled to a credit or repayment for rerental income
which exceeds the sums payable by Tenant hereunder or which covers a
period after the original term of this lease.
NOTICES.
29. Any ▇▇▇▇, notice or demand from Landlord to Tenant, may be delivered
personally at the premises or sent by registered or certified mail. Such
▇▇▇▇, notice or demand shall be deemed to have been given at the time of
delivery or mailing. Any notice from Tenant to Landlord must be sent by
registered or certified mail to the address designated in writing by
Landlord.
WATER.
30. Tenant shall pay the amount of Landlord's cost for all water used by Tenant
for any purpose other than ordinary lavatory use, and any sewer rent or tax
based thereon. Landlord may install a water meter to measure Tenant's water
consumption for all purposes and Tenant agrees to pay for the installation
and maintenance thereof and for water consumed as shown on said meter. If
water is made available to Tenant in the building or the demised premises
through a meter which also supplies other premises, or without a meter, then
Tenant shall pay to Landlord $ A REASONABLE AMOUNT per month for water.
SPRINKLER SYSTEM.
31. If there shall be a "sprinkler system" in the demised premises for any
period during this lease, Tenant shall pay $ A REASONABLE AMOUNT per month,
for sprinkler supervisory service. If such sprinkler system is damaged by
any act or omission of Tenant or its agents, employees, licensees or
visitors, Tenant shall restore the system to good working condition at its
own expense. If the New York Board of Fire Underwriters, the New York Fire
Insurance Exchange, the Insurance Services Office or any governmental
authority requires the installation or any alteration to a sprinkler system
by reason of Tenant's occupancy or use of the premises, including any
alteration necessary to obtain the full allowance for a sprinkler system in
the fire insurance rate of Landlord, or for any other reason, Tenant shall
make such installation or alteration promptly, and as its own expense.
HEAT, ELEVATOR, ETC.
19
32. Landlord shall provide elevator service during all usual business hours
including Saturdays until I P.M., except on Sundays, State holidays, Federal
holidays, or Building Service Employees Union Contract holidays. Landlord
shall furnish heat to the premises during the same hours on the same days in
the cold season in each year. Landlord shall cause the premises to be kept
clean in accordance with Landlord's customary standards for the building,
provided they are kept in order by Tenant. Landlord, its cleaning contractor
and their employees shall have after hours access to the demised premises
and the use of Tenant's light, power, and water in the demised, premises as
may be reasonably required for the purpose of cleaning the demised premises.
Landlord may remove Tenant's extraordinary refuse from the building and
Tenant shall pay the cost thereof. If the elevators in the building are
manually operated, Landlord may convert to automatic elevators at any time,
without in any way affecting Tenant's obligation hereunder.
SECURITY DEPOSIT.
33. Tenant has deposited with Landlord the sum of $33,335 as security for the
performance bt Tenant of the terms of this lease. Landlord may use any part
of the Security to satisfy any default of Tenant and expenses arising from
such default, including but not limited to any damages or rent deficiency
before or after re-entry by Landlord. Tenant shall, upon demand, deposit
with Landlord the full amount so used, in order that Landlord shall have the
full security deposit on hand at all times during the term of this lease. If
Tenant shall comply fully with the terms of this lease, the security shall
be returned to Tenant after the date fixed at the end of the lease. In the
event of a sale or lease of the building containing the premises, Landlord
may transfer the security to the purchaser or tenant, and Landlord shall
thereupon be released from all liability for the return of the security.
This provision shall apply to every transfer or assignment of the security
to a now Landlord. Tenant shall have no legal power to assign or encumber
the security herein described.
ELECTRICITY.
34. Terms and condition with respect to electricity rent inclusion, or with
respect to sub-metering, as the case may be, and general conditions with
respect to either, are set forth in Article 41 in the Rider annexed to and
made part of this lease.
RENT CONTROL.
35. In the event the fixed annual rent or additional rent or any part thereof
provided to be paid by Tenant under the provisions of this lease during the
demised term shall become uncollectible or shall be reduced or required to
be reduced or refunded by virtue of any Federal, State, County or City law,
order or regulation, or by any direction of a public officer or body
pursuant to law, or the orders, rules, code or regulations of any
organization or entity formed pursuant to law, whether such organization or
entity be public or private, then Landlord, at its option, may at any time
thereafter terminate this lease, by not less than thirty (30) day's written
notice to Tenant, on a date set forth in said notice, in which event this
lease and the term hereof shall terminate and come to an end on the date
fixed in said notice as if the said date were the date originally fixed
herein for the termination of the demised term. Landlord shall not have the
right so to terminate this lease if Tenant within such period of thirty (30)
days shall in writing lawfully agree that the rentals herein reserved are a
reasonable rental and agree to continue to pay said rentals, and if such
agreement by Tenant shall then be legally enforceable by Landlord.
SHORING.
20
36. Tenant shall permit any person authorized to make an excavation of land
adjacent to the building containing the premises to do any work within the
premises necessary to preserve the wall of the building from injury or
damage, and Tenant shall have no claim against Landlord for damages or
abatement of rent by reason thereof
EFFECT OF CONVEYANCE, ETC.
37. If the building containing the premises shall be sold, transferred or
leased, or the lease thereof transferred or sold, Landlord shall be relieved
of all future obligations and liabilities hereunder and the purchaser,
transferee or tenant of the building shall be deemed to have assumed and
agreed to perform all such obligations and liabilities of Landlord
hereunder. In the event of such sale, transfer or lease, Landlord shall also
be relieved of all existing obligations and liabilities hereunder, provided
that the purchaser, transferee or tenant of the building assumes in writing
such obligations and liabilities.
RIGHTS OF SUCCESSORS AND ASSIGNS
.
38. This lease shall bind and inure to the benefit of the heirs, executors,
administrators, successors, and, except as otherwise provided herein, the
assigns of the parties hereto. If any provision of any Article of this lease
or the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of that Article, or the
application of such provision to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected
thereby, and each provision of said Article and of this lease shall be valid
and be enforced to the fullest extent permitted by law.
CAPTIONS.
39. The captions herein are inserted for only convenience, and are in no way to
be construed as a part of this lease or as a limitation of the scope of any
provision of this lease.
LEASE SUBMISSION.
40. Landlord and tenant agree that this lease is submitted to tenant on the
understanding that it shall not be considered an offer and shall not bind
landlord in any way unless and until (I) Tenant has duly executed and
delivered duplicate originals thereof to landlord and (ii) Landlord has
executed and delivered one of said originals to Tenant
RIDER ANNEXED TO AND MADE A PART OF LEASE BETWEEN
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, LANDLORD
AND TOYMAX INC., TENANT
RULES AND REGULATIONS REFERRED TO IN THIS LEASE
1. No animals, birds, bicycles or vehicles shall be brought into or kept in the
premises. The premises shall not be used for manufacturing or commercial
repairing or for sale or display of merchandise or as a lodging place, or
for any immoral or illegal purpose. Nor shall the premises be used for a
public stenographer or
21
typist; ▇▇▇▇▇▇ or beauty shop, telephone, secretarial or messenger service,
employment, travel or tourist agency, school or classroom; commercial
document reproduction; or for any business other than specifically provided
for in the tenant's lease. Lessee shall not cause or permit in the premises
any disturbing noises which may interfere with occupants of this or
neighboring buildings, any cooking or objectionable odors, or any nuisance
of any kind, or any inflammable or explosive fluid, chemical or substance.
Canvassing, soliciting and peddling in the building are prohibited, and each
Lessee shall cooperate so as to prevent the same.
2. The toilet rooms and other water apparatus shall not be used for any
purposes other than those for which they were constructed, and no sweepings,
rags, ink, chemicals or any unsuitable substances shall be thrown therein.
Lessee shall not throw anything out of doors, windows or skylights, or into
hallways, stairways or elevators, nor place food or objects on outside
window ▇▇▇▇▇. Lessee shall not obstruct or cover the halls, stairways and
elevators, or use them for any purpose other than ingress and egress to or
from Lessee's premises, nor shall skylights, windows, doors and transoms
that reflect or admit light into the building be covered or obstructed in
any way.
3. Lessee shall not place a load upon any floor of the premises in excess of
the load per square foot which such floor was designed to carry and which is
allowed by law. Lessor reserves the right to prescribe the weight and
position of all safes in the premises. Business machines and mechanical
equipment shall be placed and maintained by Lessee, at Lessee's expense,
only with Lessor's consent and in settings approved by Lessor to control
weight, vibration, noise and annoyance. Smoking or carrying lighted cigars,
pipes or cigarettes in the elevators of the building is prohibited. If the
premises are on the ground floor of the building the tenant thereof at its
expense shall keep the sidewalks and curb in front of the premises clean and
free from ice, snow, dirt and rubbish.
4. Lessee shall not move any heavy or bulky materials into or out of the
building without Lessor's prior written consent, and then only during such
hours and in such manner as Lessor shall approve. If any material or
equipment requires special handling, Lessee shall employ only persons
holding a Master Rigger's License to do such work, and all such work shall
comply with all legal requirements. Lessor reserves the right to inspect all
freight to be brought into the building, and to exclude any freight which
violates any rule, regulation or other provision of this lease.
5. No sign, advertisement, notice or thing shall be inscribed. painted or
affixed on any part of the building, without the prior written consent of
Lessor. Lessor may remove anything installed in violation of this provision,
and Lessee shall pay the cost of such removal. Interior signs on doors and
directories shall be inscribed or affixed by Lessor at Lessee's expense.
Lessor shall control the color. size, style and location of all signs,
advertisements and notices. No advertising of any kind by Lessee shall refer
to the building. unless first approved in writing by Lessor.
6. No article shall be fastened to, or holes drilled or nails or screws driven
into, the ceilings, walls, doors or other portions of the premises, nor
shall any part of the premises be painted, papered or otherwise covered, or
in any way marked or broken without the prior written consent of Lessor.
7. No existing locks shall be changed, nor shall any additional locks or bolts
of any kind be placed upon any door or window by Lessee, without the prior
written consent of Lessor. At the termination of this lease, Lessee shall
deliver to Lessor all keys for any portion of the premises or building.
Before leaving the premises at any time, Lessee shall close all windows and
close and lock all doors.
8. No Lessee shall purchase or obtain for use in the premises any spring water,
ice, towels, food, bootlacking, barbering or other such service furnished by
any company or person not approved by Lessor. Any
22
necessary exterminating work in the premises shall be done at Lessee's
expense, at such times, in such manner and by such company as Lessor shall
require. Lessor reserves the right to exclude from the building, from 6:00
p.m. to 8:00 a.m., and at all hours on Sunday and legal holidays, all
persons who do not present a pass to the building signed by Lessor. Lessor
will furnish passes to all persons reasonably designated by Lessee. Lessee
shall be responsible for the acts of all persons to whom passes are issued
at Lessee's request.
9. Whenever Lessee shall submit to Lessor any plan, agreement or other document
for Lessor's consent or approval, Lessee agrees to pay Lessor as additional
rent, on demand. an administrative fee equal to the sum of the reasonable
fees of any architect, engineer or attorney employed by Lessor to review
said plan, agreement or document and Lessor's administrative costs for same.
10. The use in the demised premises of auxiliary heating devices, such as
portable electric heaters, heat lamps or other devices whose principal
function at the time of operation is to produce space heating, is
prohibited.
In case of any conflict or inconsistency between provisions of this lease and
any of the rules and regulations as originally or as hereafter adopted, the
provisions of this lease shall control per rentable square foot. Any
installation and use of equipment other than Ordinary Equipment and/or any
connected load and/or any energy usage by Tenant in excess of the foregoing
shall result in adjustment of the ERIF as hereinafter provided. For purposes of
this lease the rentable square foot area of the presently demised premises shall
be deemed to be 14,546 square feet.
If the cost to Landlord of electricity shall have been, or shall be,
increased or decreased subsequent to May 1, 1996 (whether such change occurs
prior to or during the term of this lease), by change in Landlord's electric
rates or service classifications, or electricity charges, including changes in
market prices, or by any increase, subsequent to the last such electric rate or
service classification change, in fuel adjustments or charges of any kind, or by
taxes, imposed on Landlord's electricity purchases, or on Landlord's electricity
redistribution, or for any other such reason, then the aforesaid ERIF portion of
the fixed annual rent, shall be changed in the same percentage as any such
change in cost due to changes in electric rates or service classifications, and,
also, Tenant's payment obligation, for electricity redistribution, shall change
from time to time so as to reflect any such increase in fuel adjustments or
charges, and taxes. Any such percentage change in Landlord's cost due to change
in Landlord's electric rates or service classifications shall be computed on the
basis of the average consumption of electricity for the building for the twelve
full months immediately prior to the rate change, or other such changes in cost,
energy and demand, and any changed methods of or rules on billing for same, on a
consistent basis to the new electric rate or service classification or market
price and to the immediately prior existing electric rate or service
classification or market price. If the average consumption (energy and demand)
for the entire building for said prior twelve (12) months cannot reasonably be
applied and used with respect to changed methods of or rules on billing, then
the percentage increase shall be computed by the use of the average consumption
(energy and demand) for the entire building for the first three (3) months after
such change, projected to a full twelve (12) months, so as to reflect the
different seasons; and that same consumption, so projected, shall be applied to
the rate and/or service classification or market price which existed immediately
prior to the change. The parties agree that a reputable, independent electrical
consultant firm, selected by Landlord ("Landlord's electrical consultant"),
shall determine the percentage change for the changes in the ERIF due to
Landlord's changed costs, and that Landlord's electrical consultant may from
time to time make surveys in the demised premises of the electrical equipment
and fixtures and the use of current. (I) If such survey shall reflect a
connected electrical load in the demised premises in excess of 41/2watts of
electricity for all purposes per rentable square foot and/or energy usage in
excess of ordinary business hours (each such excess is hereinafter called
"excess electricity") then the connected electrical load and/or the hours of use
portion(s) of the then existing ERIF shall each be increased by an amount which
is equal to a fraction of the then existing ERIF, the numerator of which is the
excess electricity (i.e., excess connected load and/or excess usage) and the
denominator of which is the connected load and/or the energy usage which was the
basis for the computation of the then existing ERIF. Such fractions shall be
determined by Landlord's electrical consultant. The fixed annual rent shall then
be appropriately adjusted, effective as of the date of any such change in
connected load and/or usage, as disclosed by said survey. (II) If such survey
shall disclose installation and use of other than Ordinary Equipment, then
effective as
23
of the date of said survey, there shall be added to the ERIF portion of the
fixed annual rent (computed and fixed as hereinbefore described) an additional
amount equal to what would be paid under the SC-4 Rate I Service Classification
in effect on May 1, 1996 (and not the time-of-day rate schedule) for such load
and usage of electricity, with the connected electrical load deemed to be the
demand (KW) and the hours of use thereof deemed to be the energy (KWH), as
hereinbefore provided, (which addition to the ERIF shall be increased or
decreased by all electricity cost changes of Landlord, as hereinabove provided,
from May 1. 1996 through the date of billing).
In no event, whether because of surveys or for any other reason, is the
originally specified $2.95 per rentable square foot ERIF portion of the fixed
annual rent (plus any net increase thereof, but not decrease, by virtue of all
electricity rate, service classification or market price changes of Landlord
subsequent to May 1, 1996) to be reduced.
-C-. GENERAL CONDITIONs: The determinations by Landlord's electrical
consultant shall be binding and conclusive on Landlord and on Tenant from and
after the delivery of copies of such determinations to Landlord and Tenant,
unless, within fifteen (15) days after delivery thereof, Tenant disputes such
determination. If Tenant so disputes the determination, it shall, at its own
expense, obtain from a reputable, independent electrical consultant its own
determinations in accordance with the provisions of this Article. Tenant's
consultant and Landlord's consultant then shall seek to agree. If they cannot
agree within thirty (30) days they shall choose a third reputable electrical
consultant, whose cost shall be shared equally by the parties, to make similar
determinations which shall be controlling. (If they cannot agree on such third
consultant within ten (10) days, then either party may apply to the Supreme
Court in the County of New York for such appointment.) However, pending such
controlling determinations, Tenant shall pay to Landlord the amount of
additional rent or ERIF in accordance with the determinations of Landlord's
electrical consultant. If the controlling determinations differ from Landlord's
electrical consultant, then the parties shall promptly make adjustment for any
deficiency owed by Tenant or overage paid by Tenant.
At the option of Landlord, Tenant agrees to purchase from Landlord or its
agents all lamps and bulbs used in the demised premises and to pay for the cost
of installation thereof. Supplementing Article 35 hereof, if all or part of the
submetering additional rent or the ERIF payable in accordance with Subdivision
(A) or (B) of this Article becomes uncollectible or reduced or refunded by
virtue of any law, order or regulation, the parties agree that, at Landlord's
option, in lieu of submetering additional rent or ERIF, and in consideration of
Tenant's use of the building's electrical distribution system and receipt of
redistributed electricity and payment by Landlord of consultant's fees and other
redistribution costs, the fixed annual rent rate(s) to be paid under this lease
shall be increased by an "alternative charge" which shall be a sum equal to
$2.95 per year per rentable square foot of the demised premises, changed in the
same percentage as any increases in the cost to Landlord for electricity for the
entire building subsequent to May 1, 1996 because of electric rate, service
classification or market price changes, such percentage change to be computed as
in Subdivision(B) provided.
Landlord shall not be liable to Tenant for any loss or damage or expenses
which Tenant may sustain or incur if either the quantity or character of
electric service is changed or is no longer available or suitable for Tenant's
requirements. Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing feeders to the building or
the risers or wiring installation. Tenant agrees not to connect any additional
electrical equipment to the building electric distribution system, other than
lamps, typewriters and other small office machines which consume comparable
amounts of electricity, without Landlord's prior written consent, which consent
shall not be unreasonably withheld. Any riser or risers to supply Tenant's
electrical requirements, upon written request of Tenant, will be installed by
Landlord, at the sole cost and expense of Tenant, if, in Landlord's sole
judgment, the same are necessary and will not cause permanent damage or injury
to the building or demised premises or 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 riser or risers, Landlord 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 parties
acknowledge that they understand that it is anticipated that electric rates,
charges, etc., may be changed by virtue of time-of-day rates or other methods of
billing, and/or electricity purchases and the redistribution thereof, and
fluctuation in the market
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price of electricity, and that the references in the foregoing paragraphs to
changes in methods of or rules on billing are intended to include any such
changes. Anything hereinabove to the contrary notwithstanding, in no event is
the submetering additional rent or ERIF, or any "alternative charge", to be less
than an amount equal to the total of Landlord's payments to public utilities
and/or other providers for the electricity consumed by Tenant (and any taxes
thereon or on redistribution of same) plus 5% thereof for transmission line
loss, plus 15% thereof for other redistribution costs. The Landlord reserves the
right, at any time upon thirty (30) days, written notice, to change its
furnishing of electricity to Tenant from a rent inclusion basis to a submetering
basis, or vice versa or to change to the distribution of less than all the
components of the existing service to Tenant. The Landlord reserves the right to
terminate the furnishing of electricity on a rent-inclusion, submetering, or any
other basis at any time, upon thirty (30) days' written notice to the Tenant, in
which event the Tenant may make application directly to the public utility for
the Tenant's entire separate supply of electric current and Landlord shall
permit its wires and conduits, to the extent available and safely capable, to be
used for such purpose, but only to the extent of Tenant's then authorized load.
Any meters, risers or other equipment or connections necessary to furnish
electricity on a submetering basis or to enable Tenant to obtain electric
current directly from such utility shall be installed at Tenant's sole cost and
expense. Only rigid conduit or electricity metal tubing (EMT) will be allowed.
The Landlord, upon the expiration of the aforesaid thirty (30) days' written
notice to the Tenant may discontinue furnishing the electric current but this
lease shall otherwise remain in full force and effect. If Tenant was provided
electricity on a rent inclusion basis when it was so discontinued, then
commencing when Tenant receives such direct service and as long as Tenant shall
continue to receive such service, the fixed annual rental rate payable under
this lease shall be reduced by the amount of the ERIF which was payable
immediately prior to such discontinuance of electricity on a rent inclusion
basis.
RIDER ANNEXED TO AND MADE A PART OF LEASE BETWEEN
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, LANDLORD
AND TOYMAX INC. , TENANT
ELECTRICITY
41. Tenant agrees that Landlord may furnish electricity to Tenant on a
"submetering" basis or on a "rent inclusion" basis. Electricity and electric
service, as used herein, shall mean any element affecting the generation,
transmission, and/or distribution or redistribution of electricity,
including but not limited to services which facilitate the distribution of
service.
(A).SUBMETERING: If and so long as Landlord provides electricity to the
demised premises on a submetering basis, Tenant covenants and agrees to
purchase the same from Landlord or Landlord's designated agent at charges,
terms and rates set, from time to time, during the term of this lease by
Landlord but not more than those specified in the service classification in
effect on January 1, 1970 pursuant to which Landlord then purchased
electric current from the public utility corporation serving the part of
the city where the building is located; provided, however, said charges
shall be increased in the same percentage as any percentage increase in the
billing to Landlord for electricity for the entire building, by reason of
increase in Landlord's electric rates or service classifications,
subsequent to January 1, 1970, and so as to reflect any increase in
Landlord's electric charges, fuel adjustment, or by taxes or charges of any
kind imposed on Landlord's electricity purchases, or for any other such
reason, subsequent to said date. Any such percentage increase in Landlord's
billing for electricity due to changes in rates or service classifications
shall be computed by the application of the average consumption (energy and
demand) of electricity for the entire building for the twelve (12) full
months immediately prior to the rate and/or service classification change,
or any changed methods of or rules on billing for same, on a consistent
basis to the new rate and/or service classification and to the service
classification in effect on January 1, 1970. If the average consumption of
electricity for the entire building for said prior twelve (12) months
cannot reasonably be applied and used with respect to changed methods of or
rules on billing, then the percentage increase shall be computed by the use
of the average consumption (energy and demand) for the entire building for
the first three (3) months after such change, projected to a full twelve
(12) months; and that same consumption, so projected, shall be applied to
the service classification in effect on January 1, 1970. Where more than
one meter measures the service of Tenant in the building, the service
rendered through each
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meter may be computed and billed separately in accordance with the rates
herein. Bills therefore shall be rendered at such times as Landlord may
elect and the amount, as computed from a meter, shall be deemed to be, and
be paid as, additional rent. In the event that such bills are not paid
within five (5) days after the same are rendered, Landlord may, without
further notice, discontinue the service of electric current to the demised
premises without releasing Tenant from any liability under this lease and
without Landlord or Landlord's agent incurring any liability for any damage
or loss sustained by Tenant by such discontinuance of service. If any tax is
imposed upon Landlord's receipt from the sale or resale of electrical energy
or gas or telephone service to Tenant by any Federal, State or Municipal
Authority, Tenant covenants and agrees that where permitted by law, Tenant's
pro-rata share of such taxes shall be passed on to, and included in the ▇▇▇▇
of, and paid by, Tenant to Landlord.
(B). RENT INCLUSION: If and so long as Landlord provides electricity to the
demised premises on a rent inclusion basis, Tenant agrees that the fixed annual
rent shall be increased by the amount of the Electricity Rent Inclusion Factor
("ERIF"), as hereinafter defined. Tenant acknowledges and agrees (i) that the
fixed annual rent hereinabove set forth in this lease does not yet, but is to
include an ERIF of $2.95 per rentable square foot to compensate Landlord for
electrical wiring and other installations necessary for, and for its obtaining
and making available to Tenant the redistribution of, electric current as an
additional service; and (ii) that said ERIF, which shall be subject to periodic
adjustments as hereinafter provided, has been partially based upon an estimate
of the Tenant's connected electrical load, which shall be deemed to be the
demand (KW), and hours of use thereof, which shall be deemed to be the energy
(KVM), for ordinary lighting and light office equipment and the operation of the
usual small business machines, including Xerox or other copying machines (such
lighting and equipment are hereinafter called "Ordinary Equipment") during
ordinary business hours ("ordinary business hours" shall be deemed to mean 50
hours per week), with Landlord providing an average connected load of 4/2 ▇▇▇▇▇
of electricity for all purposes
42. The fixed annual rental rate (without electricity) payable hereunder shall
be:
(a) From December 1, 1999, through November 30, 2002, the annual rent shall
be $400,020 payable in equal monthly installments of $33,335, EXCEPT
DECEMBER 1999 AND JANUARY THROUGH MAY 2000 FROM WHICH LESSEE SHALL BE
EXCUSED FROM THE MONTHLY RENT PAYMENTS OF $33,335;
(b) From December 1, 2002, through November 30, 2006, the annual rent shall
be $421,836 payable in equal monthly installments of $35,153;
(c) From December l, 2006,throughApril 30, 2010, the annual rent Shall be
$443,664 payable in equal monthly installments of $36,972;
(d) Lessee acknowledges that the fixed annual rental rates, hereinabove set
forth, are intended to create an average rental rate over the term of
the lease of $422,707. Lessee therefore agrees that if, by default the
term of this lease is ended prior to April 30, 2010, then and in such
event, in addition to any other liability to Lessor from Lessee, and
remedies of Lessor under this lease and under the law, Lessee shall be
obligated forthwith to pay to Lessor, as additional rent, a sum equal to
the difference between the average rental rate of $422,707 a year (as
adjusted under Article 23) theretofore paid by Lessee to Lessor.
Additional clauses attached to and forming a part of lease dated September 28,
1999 (rev. 11/99) Between ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Associates and TOYMAX INC. For Rooms
622 through 654 at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
43. If Lessor shall consummate a lease with Lessee in the building known as ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ or the building known as ▇▇▇▇ ▇▇▇▇▇▇▇▇ for vacant space larger
than the premises demised hereunder, Lessee shall have the right to cancel
this lease but such cancellation right shall be effective only upon strict
compliance with the following terms and conditions:
26
(a) Lessee shall notify Lessor within five (5) days after consummating such
lease of its intention to cancel this lease which notice shall be sent
to Lessor by Registered or Certified Mail addressed c/o Helmsley-Spear,
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, The International Toy Center South, or at such
other place hereafter designated in writing by Lessor. Time shall be of
the essence in connection with the exercise of any election to cancel
hereunder and the cancellation date shall be either:
(i) Within ninety (90) days of the effective date of the new lease for
larger space; or
(ii) Any April 30, or October 31 during the remaining period of the term
of this lease:
(b) It is understood and agreed that the aforesaid cancellation right is
conditioned upon Lessee's not being in default under any of the terms,
covenants and conditions of this lease, beyond any grace period, at the
date of delivery of any such cancellation notice and on the cancellation
date. Notwithstanding any such cancellation by Lessee hereunder, Lessee
shall remain liable to cure any default under any of the terms,
covenants and conditions of this lease existing on the cancellation
date. Such liability of Lessee shall survive any such cancellation.
(c) Lessee shall vacate the premises demised hereunder and surrender
possession thereof to Lessor on or prior to the cancellation date.
Additional clauses attached to and forming a part of lease dated September 28,
1999 (rev. 11/99) Between ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Associates and TOYMAX INC. For Rooms
622 through 654 at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
27
