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EXHIBIT 10.16
STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York, Inc.
AGREEMENT OF LEASE, made as of this 17th day of February 2000, between 19TH
STREET ASSOCIATES c/o Kaufman Management Company, LLC with offices located at:
450 Seventh Avenue, New York, NY 10123 party of the first part, hereinafter
referred to as OWNER, and LAUNCH MEDIA, INC. with offices located at: 1370
Avenue of the Americas, New York, NY 10019, party of the second part,
hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
space consisting of the entire second (2nd) floor in the building known as 121
West 19th Street, New York, NY 10011 in the Borough of Manhattan, City of New
York, for the term of eight (8) years and four (4) months (or until such term
shall sooner cease and expire as hereinafter provided) to commence on the (*see
par. #41.) day of _________________, and to end on the______________________
____________ day of _________________________and both dates inclusive, at an
annual rental rate of (see rental schedule in paragraph #42) 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 even that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant, add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
RENT:
1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY:
2. Tenant shall use and occupy demised premises for offices and music
studios provided such use is in accordance with the certificate of occupancy
for the building, if any, and for no other purpose.
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 nonstructural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises using
contractors or mechanics first approved in each instance by Owner. Tenant
shall, at its expense, before making any alterations, additions, installations
or improvements obtain all permits, approval 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. Tenant agrees to carry and will
cause Tenant's contractors and sub-contractors to carry such workman's
compensation, general liability, personal and property damage insurance as
Owner may require. If any mechanic's lien is filed against the demised
premises, or the building of which the same forms a part, for work claimed to
have been done for, or materials furnished to, Tenant, whether or not done
pursuant to this article, the same shall be discharged by Tenant within thirty
days thereafter, at Tenant's expense, by payment or filing the bond required by
law or otherwise. All fixtures and all paneling, partitions, railings and like
installations, installed in the premises at any time, either by Tenant or by
Owner on Tenant's behalf, shall, upon installation, become the property of
Owner and shall remain upon and be surrendered with the demised premises unless
Owner, by notice to Tenant no later than twenty days prior to the date fixed as
the termination of this lease, elects to relinquish Owner's right thereto and
to have them removed by Tenant, in which event the same shall be removed from
the demised premises by Tenant prior to the expiration of the lease, at
Tenant's expense. Nothing in this Article shall be construed to give Owner
title to or 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 damages 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 removed from the
premises by Owner, at Tenant's expense.
REPAIRS:
4. Owner shall maintain and repair the exterior of and the public portions
of the building. Tenant shall, throughout the term of this lease, take good
care of the demised premises including the bathrooms and lavatory facilities
(if the demised premises encompass the entire floor of the building) and the
windows and window frames and, the fixtures and appurtenances therein and at
Tenant's sole cost and expense promptly make all repairs thereto and to the
building, whether structural or non-structural in nature, caused by or resulting
from the carelessness, omission, neglect or improper conduct of tenant,
Tenant's servants, employees, invitees, or licensees, and whether or not
arising from such Tenant conduct or omission, when required by other provisions
of this lease, including Article 6. Tenant shall also repair all damage to the
building and the demised premises caused by the moving of Tenant's fixtures,
furniture or equipment. All the aforesaid repairs shall be of quality or class
equal to the original work or construction. If Tenant fails, after ten days
notice, to proceed with due diligence to make repairs required to be made by
Tenant, the same may be made by the Owner at the expense of Tenant, and the
expenses thereof incurred by Owner shall be collectible, as additional rent,
after rendition of a bill or statement therefor. If the demised premises be or
become infested with vermin, Tenant shall, at its expense, cause the same to be
exterminated. Tenant shall give Owner prompt notice of any defective condition
in any plumbing, heating system or electrical lines located in the demised
premises and following such notice, Owner shall remedy the condition with due
diligence, but at the expense of Tenant, if repairs are necessitated by damage
or injury attributable to Tenant, Tenant's servants, agents, employees, invitees
or licensees as aforesaid. Except as specifically provided in Article 9 or
elsewhere in this lease, there shall be no allowance to the Tenant for a
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner, Tenant or
others making or failing to make any 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 set off 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 any action for damages for breach of contract.
The provisions of this Article 4 with respect to the making of repairs shall
not apply in the case of fire or other casualty with regard to which Article 9
hereof shall apply.
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 New York State Labor Law or any other applicable law 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:
6. Prior to the commencement of the lease term, if tenant is then in
possession, and at all times thereafter Tenant shall, at Tenant's sole cost and
expense, 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, or the 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, or, with respect to the building, if arising out of Tenant's use or
manner of use of the demised premises of the building (including the use
permitted under the lease). Except as provided in Article 30 hereof, nothing
herein shall require Tenant to make structural repairs or alterations unless
Tenant has, by its manner of use of the demised premises or method of operation
therein, violated any such laws, ordinances, orders, rules, regulations or
requirements with respect thereto. Tenant shall not do or
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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. 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 and 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. If by reason of failure to comply with the foregoing the
fire insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of such
failure by Tenant. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" or rate for the building or demised premises
issued by a 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 or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
TENANT'S LIABILITY INSURANCE PROPERTY LOSS, DAMAGE, 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 shall not be liable for any damage caused by
other tenants or persons in, upon or about said building or caused by operations
in connection 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
attorney's 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 or 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.
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give immediate notice thereof to Owner and
this lease shall continue in full force and effect except as hereinafter set
forth. (b) If the demised premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by and
at the expense of Owner and the rent and other items of additional rent, until
such repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable by
fire or other casualty, then the rent and other items of additional rent as
hereinafter expressly provided shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when the premises shall
have been repaired and restored by Owner (or sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above, subject to
Owner's right to elect not to restore the same as hereinafter provided. (d) If
the demised premises are rendered wholly unusable or (whether or not the demised
premises are damaged in whole or in part) if the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant,
given within 90 days after such fire or casualty, or 30 days after adjustment of
the insurance claim for such fire or casualty, whichever is sooner, 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
Owner'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. (c) Nothing contained hereinabove
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, including Owner's
obligation to restore under subparagraph (b) above, each party shall look first
to any insurance in its favor before making any claim against the other party
for recovery for loss or damage resulting from fire or other casualty, and to
the extent that such insurance is in force and collectible and to the extent
permitted by law, Owner and Tenant each hereby releases and waives all right of
recovery with respect to subparagraphs (b), (d) and (e) above, against the other
or any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include
any loss or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein. The foregoing
release and waiver shall be in force only if both releasors' insurance policies
contain a clause providing that such a release or waiver shall not invalidate
the insurance. If, and to the extent, that such waiver can be obtained only by
the payment of additional premiums then the party 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.
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. Tenant shall have the right to make
an independent claim to the condemning authority for the value of Tenant's
moving expenses and personal property, trade fixtures and equipment, provided
Tenant is entitled pursuant to the terms of the lease to remove such property,
trade fixtures and equipment at the end of the term and provided further such
claim does not reduce Owner's award.
ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used by others, without the prior written consent of Owner in each instance.
Transfer of the majority of the stock of a corporate Tenant or the majority
partnership interest of a partnership Tenant shall be deemed an assignment. If
this lease be assigned, or if the demised premises or any part thereof be
underlet or occupied by anybody other than Tenant, Owner may, after default by
Tenant, collect rent from the assignee, 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, undertenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. The consent by Owner to an assignment or
underletting shall not in any way 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 way 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 any portion of the building or which Owner may elect to perform in
the premises after Tenant's failure to make repairs or perform any work, which
Tenant is obligated to perform under this lease, or for the purpose of
complying with laws, regulations and other directions of governmental
authorities. 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, whereever possible, they are within walls or otherwise
concealed. 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 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 and may, during said six months period, place upon
- ------------------
* RIDER TO BE ADDED IF NECESSARY.
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the demised premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised premises, Owner or Owner's
agents may enter the same whenever such entry may be necessary or permissible by
master key or forcibly and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
substantially all of Tenant's property therefrom. Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligation 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 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, if used by
Tenant, whether or not specifically leased hereunder.
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. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenant shall be responsible for and
shall procure and maintain such license or permit.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by 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.
(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 rental 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 or 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 or rent or additional rent, or
if the demised premises becomes vacant or deserted "or if this lease be rejected
under Section 235 of Title 11 of the U.S. Code (bankruptcy code)," 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 Tenant shall make default with respect to any other
lease between Owner and Tenant, or if Tenant shall have failed, after five (5)
days written notice, to redeposit with Owner any portion of the security
deposited hereunder which Owner has applied to the payment of any rent and
additional rent due and payable hereunder or failed to move into or take
possession of the premises within thirty (30) days after the commencement of
the term of this lease, of which fact Owner shall be the sole judge, then in
any one or more of such events, upon Owner serving a written fifteen (15) days
notice upon Tenant specifying the nature of said default and upon the
expiration of said fifteen (15) days, if Tenant shall have failed to comply
with or remedy such default, or if the said default or omission complained of
shall be of a nature that the same cannot be completely cured or remedied
within said fifteen (15) day period, and if Tenant shall not have diligently
commenced during such default within such fifteen (15) day period, and shall
not thereafter with reasonable diligence and in good faith, proceed to remedy
or cure such default, then Owner may serve a written five (5) days' notice of
cancellation of this lease upon Tenant, and upon the expiration of said five
(5) days this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof
and Tenant shall then quit and surrender the demised premises to Owner but
Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid, or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required,
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant in 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 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 other wise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may 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; (c)
Tenant or the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent 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, reasonable attorneys' fees, brokerage, advertising and for
keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any subsequent month by a similar
proceeding. Owner, in putting the demised premises in good order or preparing
the same for re-rental may, at Owner's option, make such alterations, repairs,
replacements, and/or decorations in the demised premises as Owner, in Owner's
sole 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.
FEES AND EXPENSES:
19. If Tenant shall default in the observance or performance of any term
or covenant on Tenant's part to be observed or performed under or by virtue of
any of the terms or provisions in any article of this lease, after notice if
required and upon expiration of any applicable grace period if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately or at any time thereafter and without notice perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing or
in connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonably attorney's fees, in instituting,
prosecuting or defending, then Tenant will reimburse Owner for such sums so paid
or obligations incurred with interest and costs. The foregoing expenses incurred
by reason of Tenant's default shall be deemed to be additional rent hereunder
and shall be paid by Tenant to Owner within ten (10) days of rendition of any
bill 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 Tenant 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 any 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.
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NO REPRESENTATIONS BY OWNER:
21. Neither Owner nor Owner's agents have made any representations or
promises with respect to the physical condition of the building, the land upon
which is created or the demised premises, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the demised
premises or the building 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" on the date possession is
tendered and acknowledges that the taking of possession of the demised premises
by Tenant shall be conclusive evidence that the said premises and the building
of which the same form a part were in good and satisfactory condition at the
time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of
it in whole or in part, unless such executory agreement is in writing and
signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
END OF TERM:
22. Upon the expiration or other termination of the term of this lease,
Tenant shall quit and surrender to Owner the demised premises, broom clean, in
good order and condition, ordinary wear and damages which Tenant is not required
to repair as provided elsewhere in this lease excepted, and Tenant shall remove
all its property from the demised premises. 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, fails
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 34 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 if Owner has not completed any work required to be performed by
Owner, 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
way to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession or complete any work required) until after Owner shall have given
Tenant notice that Owner is able to deliver possession in the condition
required by this lease. 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 possession and/or occupancy shall
be deemed to be under all the terms, covenants, conditions and provisions of
this lease, except the obligation to pay the fixed annual rent set forth in page
one of this lease. The provisions of this article are intended to constitute
"an express provision to the contrary" within the meaning of Section 223-a of
the New York Real Property Law.
NO WAIVER:
25. The failure of Owner to seek redress for violation of, or to insist
upon the strict performance of any covenant or condition of this lease or of
any of the Rules or Regulations, set forth or hereafter adopted by Owner, shall
not prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Owner of rent 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. All checks tendered to Owner as
and for the rent of the demised premises shall be deemed payments for the
account of Tenant. Acceptance by Owner of rent from anyone other than Tenant
shall not be deemed to operate as an attornment to Owner by the payor of such
rent or as a consent by Owner to an assignment or subletting by Tenant of the
demised premises to such payor, or as a modification of the provisions of this
lease. No act or thing done by Owner or Owner's agents during the term hereby
demised shall be deemed an acceptance of a surrender of said premises and no
agreement to accept such surrender shall be valid unless in writing signed by
Owner. No employee of Owner of Owner's agent shall have any power to accept the
keys of said premises prior to the termination of the lease and the delivers of
keys to any such agent or employee shall not operate as a termination of the
lease or a surrender of the premises.
WAIVER OF TRIAL BY JURY:
26. It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any
matters whatsoever arising out of or in any way connect 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 proceeding or action for
possession including a 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 except for
statutory mandatory counterclaims.
INABILITY TO PERFORM:
27. This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant
to be performed shall in no way 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,
fixtures or other materials if Owner is prevented or delayed from doing so by
reason of strike or labor troubles or any cause whatsoever beyond Owner's sole
control including, but not limited to government preemption or restrictions or
by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions which have been
or are affected, either directly or indirectly, by war or other emergency.
BILLS AND NOTICES:
28. Except as otherwise in this lease provided, a bill 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 bill 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.
WATER CHARGES:
29. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory purposes (of which fact Tenant constitutes Owner
to be the sole judge) Owner may install a water meter and thereby measure
Tenant's water consumption for all purposes. Tenant shall pay Owner for the cost
of the meter and the cost of the installation, thereof and throughout the
duration of Tenant's occupancy Tenant shall keep said meter and installation
equipment in good working order and repair at Tenant's own cost and expense in
default of which Owner may cause such meter and equipment to be replaced or
repaired and collect the cost thereof from Tenant, as additional rent. Tenant
agrees to pay for water consumed, as shown on said meter as and when bills are
rendered, and on default in making such payment Owner may pay such charges and
collect the same from Tenant, as additional rent. Tenant covenants and agrees to
pay, as additional rent, the sewer rent, charge or any other tax, rent, levy or
charge which now or hereafter is assessed, imposed or a lien upon the demised
premises or the realty or which they are part pursuant to law, order or
regulation made or issued in connection with the use, consumption, maintenance
or supply of water, water system or sewage or sewage connection or system. If
the building or the demised premises or any part thereof is supplied with water
through a meter through which water is also supplied to other premises Tenant
shall pay to Owner, as additional rent, on the first day of each month, %
($50.00) of the total meter charges as Tenant's portion. Independently of and in
addition to any of the remedies reserved to Owner hereinabove or elsewhere in
this lease. Owner may sue for and collect any monies to be paid by Tenant or
paid by Owner for any of the reasons or purposes hereinabove set forth.
SPRINKLERS:
30. Anything elsewhere in this lease to the contrary notwithstanding, if
the New York Board of Fire Underwriters or the New York Fire Insurance Exchange
or any bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any
changes, modifications, alterations, or additional sprinkler heads or other
equipment be made or supplied in an existing sprinkler system by reason of
Tenant's business, or the location of partitions, trade fixtures, or other
contents of the demised premises, or for any other reason, or if any such
sprinkler system installations, modifications, alterations, additional sprinkler
heads or other such equipment, become necessary to prevent the imposition of a
penalty or charge against the full allowance for a sprinkler system in the fire
insurance rate set by any said Exchange or by any fire insurance company.
Tenant shall, at Tenant's expense, promptly make such sprinkler system
installations, changes, modifications, alterations, and supply additional
sprinkler heads or other equipment as required whether the work involved shall
be structural or non-structural in nature. Tenant shall pay to Owner as
additional rent the sum of $50.00, on the first day of each month during the
term of this lease, as Tenant's portion of the contract price for sprinkler
supervisory service.
ELEVATORS, HEAT, CLEANING:
31. As long as Tenant is not in default under any of the covenants of
this lease beyond the applicable grace period provided in this lease for the
curing of such defaults, Owner shall (a) provide necessary passenger elevator
facilities on business days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m.
to 1 p.m. (b) if freight elevator service is provided, same shall be provided
only on regular business days Monday through Friday inclusive, and on those
days only between the hours of 9 a.m. and 12 noon and between 1 p.m. and 5 p.m.,
(c) furnish heat, water and other services supplied by Owner 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
Page 4 of 14
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a.m. to 1. p.m.; (d) clean the public halls and public portions of the building
which are used on common by all tenants. Tenant shall, at Tenant's expense keep
the demised premises, including the windows, clean and in order, to the
reasonable satisfaction of Owner, and for that purpose shall employ the person
or persons, or corporation approved by Owner. tenant shall pay to Owner the
cost of removal of any of Tenant's refuse and rubbish from the building. Bills
for the same shall be rendered by Owner to Tenant at such time as Owner may
elect and shall be due and payable hereunder, and the amount of such bills
shall be deemed to be, and be paid as, additional rent. Tenant shall, however,
have the option of independently contracting for the removal of such rubbish
and refuse in the event that Tenant does not with to have same done by
employees of Owner. Under such circumstances, however, the removal of such
refuse and rubbish by others shall be subject to such rules and regulations as
in the judgment of Owner are necessary for the proper operation of the
building. Owner reserves the right to stop service of the heating, elevator,
plumbing and electric systems, when necessary, by reason of accident, or
emergency, or for repairs, alterations, replacements or improvements, in the
judgment of Owner desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed. If the
building of which the demised premises are a part supplies manually operated
elevators service, Owner may proceed diligently with alterations necessary to
substitute automatic control elevator service without in any way affecting the
obligations of Tenant hereunder.
SECURITY:
32. Tenant has deposited with Owner the sum of $68,664.16 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 deficiencies in the reletting of the premises,
whether such damages or deficiency accrued before or after summary proceeding
or other re-entry by Owner. If 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.
CAPTIONS:
33. 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:
34. The term "Owner" as used in this lease means only the owner of the fee
or of the leasehold of the building, 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 for 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 our 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 "rent"
includes the annual rental rate whether so expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to Owner from Tenant under this lease, in addition to the annual
rental rate. The term "business days" as used in this lease, shall exclude
Saturdays, 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. Wherever it is expressly
provided in this lease that consent shall not be unreasonably withheld, such
consent shall not be unreasonably delayed.
ADJACENT EXCAVATION - SHORING:
35 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 for 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:
36. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations annexed hereto and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
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 fifteen (15) days
after the giving of notice thereof. Nothing in this lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against
any other tenant and Owner shall not be liable to Tenant for violation of the
same by any other tenant, its servants, employees, agents, visitors or
licensees.
GLASS:
37. Owner shall replace, at the expense of the Tenant, any and all plate
and other glass damaged or broken from any cause whatsoever in and about the
demised premises. Owner may insure, and keep insured, at Tenant's expense, all
plate and other glass in the demised premises for and in the nema of Owner.
Bills for the premiums therefor shall be rendered by Owner to Tenant at such
times as Owner may elect, and shall be due from, and payable by, Tenant when
rendered, and the amount thereof shall be deemed to be, and be paid, as
additional rent.
ESTOPPEL CERTIFICATE:
38. 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 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.
DIRECTORY BOARD LISTING:
39. If, at the request of and as accommodation to Tenant, Owner shall place
upon the directory board in the lobby of the building, one or more names of
persons other than Tenant, such directory board listing shall not be construed
as the consent by Owner to an assignment or subletting by Tenant to such person
or persons.
SUCCESSORS AND ASSIGNS:
40. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Owner ant Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's
estate and interest in the land and building for the satisfaction of Tenant's
remedies for the collection of a judgement (or other judicial process) against
Owner in the event of any default by Owner hereunder, and no other property or
assets of such Owner (or any partner, member, officer or director thereof,
disclosed or undisclosed), shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this lease, the relationship of Owner and Tenant hereunder, or
Tenant's use and occupancy of the demised premises.
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Space to be filled in or deleted.
AS PER RIDER ATTACHED AND MADE PART OF LEASE DATED: February 7th, 2000
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the say and year first above written.
19TH STREET ASSOCIATES
Witness for Owner: BY: /s/ [SIGNATURE ILLEGIBLE] L.S.
-----------------------------
- ----------------------------- -----------------------------
LAUNCH MEDIA, INC.
Witness for Owner: BY: /s/ JEFF MICKEAL L.S.
-----------------------------
Jeff Mickeal, C.F.O.
- ----------------------------- -----------------------------
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ACKNOWLEDGEMENTS
CORPORATE TENANT
STATE OF NEW YORK, ss.:
COUNTY OF
On this day of , 19 , before me personally 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 be 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.
IMPORTANT -- PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE IN
ACCORDANCE WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said premises clean and free from ice, snow, dirt and
rubbish.
2. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed
and no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from
the violation of this rule shall be borne by the Tenant who or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other articles shall be hung or shaken out of any
window of the building, and no Tenant shall sweep or throw or permit to be
swept or thrown from the demised premises any dirt or other substances into any
of the corridors or halls, elevators, or out of the doors or windows or
stairways of the building and Tenant shall not use, keep or permit to be used or
kept any foul or noxious gas or substance in the demised premises, or permit or
suffer the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the building by reason of noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish or
birds be kept in or about the building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside
walls of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if
the same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance
door of the premises. In the event of the violation of the foregoing by any
Tenant, Owner may remove the same without any liability and may charge the
expense incurred by such removal to Tenant or Tenants violating this rule.
Interior signs on doors and directory tablet shall be inscribed, painted or
affixed for each Tenant by Owner at the expense of such Tenant, and shall be of
a size, color and style acceptable to Owner.
6. No Tenant shall mark, paint, drill into, or in any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Owner, and as Owner may direct. No Tenant shall lay
linoleum, or other similar floor covering, so that the same shall come in
direct contact with the floor of the demised premises, and, if linoleum or
other similar floor covering is desired to be used an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar adhesive being
expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the premises only on
the freight elevators and through the service entrances and corridors and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease of which these Rules and Regulations are a part.
9. No Tenant shall obtain for use upon the demised premises ice,
drinking water, towel and other similar services, or accept barbering or
bootblacking services in the demised premises, except from persons authorized
by Owner, and at hours and under regulations fixed by Owner. Canvassing,
soliciting and peddling in the building is prohibited and each Tenant shall
cooperate to prevent the same.
10. Owner reserves the right to exclude from the building all persons who
do not present a pass to the building signed by Owner. Owner will furnish passes
to persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such persons. Notwithstanding the foregoing, Owner
shall not be required to allow Tenant or any persons to enter or remain in the
building, except on business days from 8:00 a.m. to 6:00 p.m. and on Saturdays
from 8 a.m. to 1 p.m. Tenant shall not have a claim against Owner by reason of
Owner excluding from the building any person who does not present such pass.
11. Owner shall have the right to prohibit any advertising by any Tenant
which in Owner's opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from Owner, Tenant
shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible, or explosive, or hazardous
fluid, material, chemical or substance, or cause or permit any odors of cooking
or other processes, or any unusual or other objectionable odors to permeate in
or emanate from the demised premises.
13. Tenant shall not use the demised premises in a manner which disturbs
or interferes with other Tenants in the beneficial use of their premises.
Address
Premises
- --------------------------------------------------------------------------------
TO
- --------------------------------------------------------------------------------
STANDARD FORM OF
[SEAL] LOFT [SEAL]
LEASE
The Real Estate Board of New York, Inc.
(c) Copyright 1994. All rights Reserved.
Reproduction in whole or in part prohibited.
- --------------------------------------------------------------------------------
Dated 19
Rent Per Year
Rent Per Month
Term
From
To
Drawn by ___________________________________
Checked by _________________________________
Entered by _________________________________
Approved by ________________________________
- --------------------------------------------------------------------------------
Page 6 of 14
7
AMENDMENTS TO LEASE DATED: FEBRUARY 7, 2000
BETWEEN
19TH STREET ASSOCIATES
AND
LAUNCH MEDIA, INC.
AMENDMENTS TO PARAGRAPH #3 ARE AS FOLLOWS:
1. Landlord shall not unreasonably withhold or delay consent to
Tenant to perform alterations in the demised premises
2. Tenant shall not be required to restore demised premises at the
end of term
AMENDMENTS TO PARAGRAPH #4 ARE AS FOLLOWS:
1. Owner is responsible to maintain and repair public portions of
the building including the roof and to maintain heating system
in good repair
AMENDMENTS TO PARAGRAPH #6 ARE AS FOLLOWS:
1. Tenant shall not be required to make any structural changes to
the demised premises as a result of other Tenant improvements,
which are made in the building or for any reason other than the
Tenant's specific use and alteration
AMENDMENTS TO PARAGRAPH #7 ARE AS FOLLOWS:
1. Owner shall request and make good faith efforts to obtain a
non-disturbance agreement from the mortgagee
AMENDMENTS TO PARAGRAPH #9 ARE AS FOLLOWS:
1. Landlord shall carry an all risk policy of casualty insurance in
the amount of full replacement cost of the building
AMENDMENTS TO PARAGRAPH #11 ARE AS FOLLOWS:
1. Landlord's consent to any assignment shall not be unreasonably
withheld or delayed. The Tenant has the right to assign or
sublease upon any merger or consolidation or to any affiliated
corporation. Landlord has the right to reclaim the space within
30 days of Tenant notice to sublease to any non-merger,
non-consolidated or non-affiliated entity.
AMENDMENTS TO PARAGRAPH #17 ARE AS FOLLOWS:
1. Owner shall provide notice of at least five- (5) business days
with respect to any rent default
Page 7 of 14
8
AMENDMENTS TO PARAGRAPH #20 ARE AS FOLLOWS:
1. Any building alterations made by Owner shall be done in a manner
which minimizes interference with Tenant's business
AMENDMENTS TO PARAGRAPH #31 ARE AS FOLLOWS:
1. Tenant shall have 24-hour, 7-day a week access to the building
and to the demised premises
2. Tenant shall have 24-hour, 7-day a week access to the automatic
passenger elevator
AMENDMENTS TO PARAGRAPH #32 ARE AS FOLLOWS:
1. Tenant shall receive interest on security deposit paid annually
at commercial bank savings account rates minus one (1)%.
Page 8 of 14
9
February 7th, 2000
LAUNCH MEDIA, INC.
1370 AVENUE OF THE AMERICAS
NEW YORK, NY 10109
Re: Premises - 121 West 19th Street
Entire 2nd. Floor
New York, NY 10011
GENTLEMEN:
CONFIRMING OUR UNDERSTANDING WITH REFERENCE TO THE LEASE THIS DAY EXECUTED BY
YOU (THE "TENANT") WITH US (THE "OWNER"), FOR SPACE CONSISTING OF THE ENTIRE
SECOND (2ND) FLOOR IN THE BUILDING KNOWN AS 121 WEST 19TH STREET, NEW YORK, NY,
10018, WE HEREBY AGREE AT OUR OWN COST AND EXPENSE TO DO THE FOLLOWING WORK
("OWNER'S WORK") IN ACCORDANCE WITH ALL APPLICABLE LAWS AND BUILDING STANDARDS:
1. PAINT ENTIRE PREMISES;
2. DEMOLISH ENTIRE PREMISES;
3. INSTALL NEW FULL HEIGHT WINDOWS;
4. REFINISH FLOOR WHERE REQUIRED; LEAVE CONCRETE AREAS;
5. SUPPLY ELECTRICITY AS FOLLOWS: 600 amps, 3 PHASE WILL BE DELIVERED TO
PREMISES. ADDITIONAL 200 amps WILL BE AVAILABLE IN BUILDING OR IN 111
WEST 19TH STREET BASEMENT;
6. SUPPLY NEW RADIATORS.
7. SUPPLY NEW BATHROOMS IN COMPLIANT WITH ADA
IT IS ALSO UNDERSTOOD THE AFORESAID WORK WILL BE COMMENCED PROMPTLY AFTER
EXECUTION OF SAID LEASE AND VACATING OF THE PRESENT TENANT FROM THE DEMISED
PREMISES. YOU DO HEREBY GRANT US AN IRREVOCABLE LICENSE TO ENTER THE PREMISES
FOR THE PURPOSE OF DOING THE AFORESAID WORK. IT IS ALSO UNDERSTOOD YOU ARE TO
RECEIVE NO ABATEMENT OR DIMINUTION OF RENT, NOR ARE YOU TO MAKE ANY CLAIM FOR
INJURY TO PERSON, OR DAMAGE TO PROPERTY, FOR INTERRUPTION OR LOSS OF BUSINESS,
OR DISTURBANCE IN POSSESSION RESULTING DIRECTLY OR INDIRECTLY FROM THE DOING OF
THE AFORESAID WORK BY US. IT IS ALSO UNDERSTOOD THAT THE DOING OF SAID WORK IS
SUBJECT TO STRIKES AND/OR LOCKOUTS AND ALL OTHER CAUSES BEYOND THE OWNER'S
CONTROL.
VERY TRULY YOURS,
19th STREET ASSOCIATES
BY: /s/ [SIGNATURE ILLEGIBLE] L.S.
-------------------------
ACCEPTED & AGREED:
LAUNCH MEDIA
BY: /s/ JM MICKEAL L.S.
--------------------------
JEFF MICKEAL
C.F.O.
Page 9 of 14
10
RIDER ATTACHED AND MADE PART OF LEASE DATED: FEBRUARY 7TH, 2000
- BETWEEN -
19th STREET ASSOCIATES
OWNER
- AND -
LAUNCH MEDIA, INC.
TENANT
FOR SPACE CONSISTING OF THE ENTIRE SECOND (2ND) FLOOR in THE BUILDING KNOWN AS
121 WEST 19TH STREET,
NEW YORK, NY 10011
#41. TERM & COMMENCEMENT OF LEASE: Owner hereby leases to Tenant and Tenant
hereby hires from Owner space consisting of the entire second (2nd) floor (the
"Demised Premises") in the Building known as 121 West 19th Street in the Borough
of Manhattan, City of New York (the "Building"), for the term of approximately
eight (8) years and four (4) months or until such term shall sooner cease and
expire as hereinafter provided) to commence as provided in the Work Letter
hereof and ending on the last day of the calendar month eight (8) years and four
(4) months following the commencement date (the "Expiration Date"), both dates
inclusive, at annual rental rates, as provided in Article #42 (the "Fixed
Rent"), 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.
For the purpose of this Article, Owner's work shall be deemed to be
substantially completed when all major construction is completed although minor
items are not completed, including, but not limited to touch-up painting or any
other uncompleted construction or improvement which does not unreasonably
interfere with Tenant's ability to carry on its business in the Demised
Premises. Tenant shall periodically inspect Owner's work and make any objections
thereto, if called for, without delay, so as to mitigate changes, delays and
costs.
The term of this Lease shall commence on a date fixed by Owner in a
written notice to Tenant, which notice shall (a) state that on or prior to that
date set forth in said notice, Owner's work shall be deemed substantially
completed and (b) notice which shall not be given earlier than five (5) days
prior to the substantial completion date.
#42. RENTAL SCHEDULE: Tenant shall pay base annual rental to Tenant as follows:
First (4) months - Free Rent;
Year 1 --- $324,000.00 per annum ($27,000.00 per mo.);
Year 2 --- $333,720.00 per annum ($27,810.00 per mo.);
Year 3 --- $343,731.00 per annum ($28,674.25 per mo.);
Year 4 --- $354,043.00 per annum ($29,503.58 per mo.);
Year 5 --- $377,024.00 per annum ($31,418.67 per mo.);
Year 6 --- $388,335.00 per annum ($32,361.25 per mo.);
Year 7 --- $399,985.00 per annum ($33,332.08 per mo.);
Year 8 --- $411,985.00 per annum ($34,332.08 per mo.).
(plus additional rental hereafter provided)
#43. REAL ESTATE TAX: The term Real Estate Taxes shall mean all the Real Estate
Taxes and assessments, special or otherwise, levied, assessed or imposed by the
federal, state or local governments against or upon the building of which the
Demised Premises form a part or the land upon which it is erected, and any
improvements or additions to the land or building whether existing now, or in
the future. If due to a future change in the method of taxation, any franchise,
income, profit or other tax, or other payment, shall be levied against Owner in
whole or in part in substitution for or in lieu of any tax which
Page 10 of 14
11
would otherwise constitute a Real Estate Tax, such franchise, income, profit, or
other tax or payment, shall be deemed to be Real Estate Taxes for purposes
hereof.
In the event that the Real Estate Taxes levied on the property of which
the demised premises are a part shall for any year after the fiscal year
2000/2001 be in excess of the Real Estate Taxes levied against the said property
for the fiscal year 2000/2001 hereafter known as the "base tax year", the Tenant
shall pay to the Owner as additional rent an amount equal to 10% ("Tenant's
Share") of such excess, if any. In addition, Tenant shall pay for each and every
tax year, Tenant's Share of the business improvement district or special
assessment taxes levied against Owner for the district in which the building is
located. The submission of a duplicate original tax bill of the Owner shall be
deemed conclusive evidence of the amount of the taxes paid by the Owner for each
year and shall be the basis for the computation of any excess so to be paid by
the Tenant. Such excess in the case of Real Estate Taxes, and Tenant's share of
the business improvement district taxes shall each be payable within ten (10)
days of receipt of the bill. The obligation to make any payments of additional
rent pursuant to this Article shall survive the expiration or other termination
of this Lease.
#44. FIXTURES: All hanging fluorescent light fixtures and any other light
fixtures installed by the Tenant or Owner shall become the property of the Owner
and shall remain within the demised premises at the termination of this Lease
unless the Owner grants specific permission to the Tenant to remove said light
fixtures.
Any and all central air-conditioning unit(s) including duct work and window
air-conditioning unit(s) installed by the Tenant or the Owner, shall become the
property of the Owner and may not be removed unless the Owner grants specific
permission to the Tenant to remove said central air-conditioning unit(s) or
window air conditioning unit(s).
#45. INSURANCE: Tenant at its own cost and expense, shall maintain at all times
from the date that it shall first enter the premises for the mutual benefit of
Owner and Tenant comprehensive public liability insurance against claims for
personal injury or death or property damage occurring in or about the Demised
Premises or resulting directly or indirectly from any change, alteration,
construction, improvement or repair, or any installation thereat made by or on
behalf of the Tenant, with $1,000,000 combined single limit. The insurance
required hereunder shall be effected valid and enforceable policies issued by
insurance companies of recognized responsibility, authorized and licensed to do
business in the State of New York.
Prior to Tenant's entry into the Demised Premises and at hereafter no
less than thirty (30) days prior to the expiration date of any expiring policy,
originals of each such policy or renewal policy, as the case may be, shall be
delivered by Tenant to Owner with proof of payment of the respective premiums
therefore. Each such policy or renewal policy shall contain a requirement that
the same may not be cancelled without giving written notice to Owner at least
fifteen (15) days prior to the proposed date of cancellation.
In the event Tenant fails to furnish any such policy on the date
therefore, Owner may obtain the same, all at Tenant's expense, and the cost
thereof shall be deemed additional rent and shall be paid within ten (10) days
after the rendition of a bill therefore.
#46. BROKER: Tenant warrants and represents to Owner that it has had no dealings
with any broker or agent except Kaufman Management Company, LLC and the broker
listed below, if any, in connection with this Lease and covenants and agrees to
hold harmless and indemnify Owner and Kaufman Management Company, LLC from and
against any and all costs and expenses or liability for any compensation,
commissions, fees and charges claimed by any other broker or an agent with
respect to this Lease or the negotiation thereof. The obligation of Tenant
contained in this Article shall survive the expiration or earlier termination of
this Lease.
Broker: Legacy Real Estate/Kenneth Fishel
#47. CONCESSION: Tenant shall be granted a rent abatement period for the first
four (4) months of this Lease. However, Tenant shall be responsible for the
payment of additional rent and all other charges including electricity
commencing immediately upon Tenant having access to the demised premises.
Payment of rent commences upon the fifth (5th) month of Lease.
Page 11 of 14
12
#48. HOLDOVER: If the Demised Premises are not surrendered and vacated as and at
the time required by this lease whether it be a natural expiration or an
expiration due to default (time being of the essence), Tenant shall be liable to
Owner for (a) all losses, costs, liabilities and damages which Owner may incur
by reason thereof, including without limitation, reasonable attorneys fees, and
Tenant shall indemnify, defend and hold harmless Owner against all claims made
by any succeeding tenants against Owner or otherwise arising out of or resulting
from the failure of tenant to timely surrender and vacate the Demised Premises
in accordance with the provisions of this Lease, and (b) per them use and
occupancy with respect to the Demised Premises equal to two times the fixed rent
and additional rent payable under this Lease for the last year of the term of
this Lease (which amount Owner and Tenant presently agree is the minimum to
which Owner would be entitled, is presently contemplated by them as being fair
and reasonable under such circumstances and is not a penalty). In no event,
however, shall this Article be construed as permitting Tenant to hold over in
possession of the Demised Premises after the expiration or termination of the
term of this Lease.
#49. RIGHT OF FIRST REFUSAL: Owner agrees, subject to any pre-existing options
which have been granted to any other Tenant and provided Tenant is not then in
default under this Lease, before Owner shall initially lease space consisting of
Store, basement and mezzanine and the third (3rd) floor located at 121 West 19th
Street (the "Offered Space"), Owner shall first send a notice ("Owner's Notice")
to Tenant, offering to lease the Offered Space to Tenant upon the rental rates
and such other terms as Owner shall wish to include ("Offered Term").
Tenant shall have the right, exercisable only by written notice received
by Owner within five (5) days after the date Owner shall have given Owner's
Notice, to notify Owner that Tenant accepts the offer contained in Owner's
Notice and is willing to execute formal lease documents within ten (10) days
thereafter, upon the Offered Terms and otherwise upon all of the same provisions
as are contained in this Lease (except there shall be no broker). In the event
Tenant shall lease the Offered Space, Tenant shall and does hereby agree to,
indemnify and hold harmless Owner of and from all claims and demands for
commission or other compensation made by any real estate broker, including
without limitation the broker named in the lease, in connection with such
leasing, but excluding any exclusive Building renting agent.
#50. EXECUTION & DELIVERY: The submission of this Lease to Tenant shall not be
construed as an offer, nor shall Tenant have any rights with respect thereto
unless and until Owner shall execute a copy of this Lease and deliver the same
to Tenant. Until such execution and delivery, any action taken or expense
incurred by Tenant shall be at its sole risk and account.
19TH STREET, ASSOCIATES
BY: /s/ [SIGNATURE ILLEGIBLE] L.S.
--------------------------
LAUNCH MEDIA, INC.
BY: /s/ JEFF MICKEAL L.S.
---------------------------------
JEFF MICKEAL
C.F.O.
Page 12 of 14
13
RIDER TO LEASE DATED FEBRUARY 7TH, 2000 BETWEEN
LAUNCH MEDIA, INC. AS TENANT AND
19TH STREET ASSOCIATES AS LANDLORD,
FOR SPACE CONSISTING OF THE ENTIRE SECOND (2ND) FLOOR IN THE BUILDING KNOWN AS
121 WEST 19TH STREET, NEW YORK, NY 10018
#53. The Tenant agrees to purchase from Consolidated Electric Meter Co., Inc.
hereinafter referred to as the Meter Company supplying electric current to the
building, all electric current consumed, used or to be used in the demised
premises, and all bulbs, lamps or electric fixtures and to pay for the
installation thereof. The amount to be paid by the Tenant for current consumed
shall be determined by the meter or meters on the premises, or to be installed
and billed according to each meter. Bills for current consumed shall be rendered
by the meter company to the Tenant at such times as the Meter Company may elect.
The Meter Company shall have the right, in the event of any non-payment by the
Tenant of such bill within three (3) days after rendition, to discontinue and
cut off the use of electric current to the Tenant without further notice and
without releasing the Tenant from any liability under this lease, and without
the Landlord or said Meter Company incurring any liability for any damage caused
by such discontinuance of service. The Tenant further agrees, on demand by the
Meter Company, to sign an application for electric service and to place with the
Meter Company, a cash deposit sufficient to secure a two (2) month payment for
the peak current consumed by the Tenant in the demised premises, as estimated by
the Meter Company. Tenant agrees to pay for all electric current consumed, at a
rate specified as the Tenant's base rate as of the date of this lease, as
designed and established by the Meter Company supplying electric current to the
building. If any increased utility rate, component of the utility rate,
component of the utility bill, charge or cost, is imposed on the building at any
time from any source after the date of this lease, such increase or increases
shall be charged to and paid by the Tenant to the Meter Company at a sum equal
to the same percentage of increase as received by the building and said same
percentage of increase shall be charged to the Tenant over and above the
Tenant's base rate in effect as of the date of such increase provided such
increase, if any, results in a higher yield to the Meter Company. The Tenant
also agrees to pay its proportionate share of the building's monthly public
light and power electric consumption and usage as determined by the Meter
Company based upon the building's monthly utility bill as received from
Consolidated Edison Company of New York, Inc., its successors or any other
company supplying electrical current to the building, and said proportionate
electrical consumption and usage shall be added to the Tenant's monthly bill.
If, in the opinion of the Meter Company, the Tenant's installation overloads any
riser or risers, and/or switch or switches, and/or meter or meters in the
building of which the demised premises are a part, the Tenant will at the
Tenant's own expense, provide, install and maintain any riser or risers, and/or
any or all switch and/or switches or meter or meters that may be necessary, but
no riser or risers, and/or switch or switches or meter and/or meters will be
installed without the written permission of the Meter Company. All meters to be
installed will be purchased from the Meter Company and all risers, switches and
meters so installed shall be, become and remain the property of the building but
the building may, at its option, demand of the Tenant and the Tenant shall, upon
such demand remove all such meters, switches or related equipment at Tenant's
own cost and expense. Any tax or charge now in effect or hereinafter imposed
upon the receipts of the Meter Company from the sale or resale of electrical
energy to the Tenant by any Municipal, State or Federal agency shall be passed
on to the Tenant and included in the bill and paid by the Tenant to the Meter
Company. In the event that permission is granted by the Meter Company for any
alternating current installations, the Tenant will, at its own expense, furnish
and install all equipment, risers, service wiring, switches and meters that may
be necessary for such installation and will at its own cost and expense maintain
and keep in good repair all such riser, risers, wiring and/or switch or
switches, and/or meter or meters. The Meter Company and/or the Landlord shall
not in any way be liable or responsible to the Tenant for any loss or damage or
expense which Tenant may sustain or incur if either the quantity, quality or
character of electric service is changed, is not available or suitable for
Tenant's requirements. In the event any legislature, order of the Public Service
Commission, any judicial or governmental body enacts any law, ruling or
regulation to effect the service classification, rate or charge under which the
Tenant now purchases electric current from the Meter Company, then and in such
event, Tenant will pay, in addition to such newly promulgated rate or change,
such additional or further payments to the Meter Company for the rental, use
maintenance and amortization of the building electrical distribution system in
an amount as, together with such newly promulgated rates or charges shall equal
the rates or charges in effect prior to the rates or charges as set forth by any
legislature, order of the Public Service Commission or any judicial or
governmental body after date hereof. In the event any legislature, order of the
Public Service Commission, or any judicial or governmental body, or any
executive order or decree from any governmental body after the date hereof
establishes, enacts, orders or decrees any wage and price controls of any kind,
establishing, limiting, freezing or reducing the rates charged by the public
utility company supplying electric current to the building containing the
demised premises, then the Meter Company, at its option, may increase its
charges from and after the effective date of said order or decree, by the same
percentage of increase as the United States Consumer Price Index for Urban
Consumers prepared by the United States Government, Department of Labor, Bureau
of Labor Statistics, or successor thereto is increased over and above the index
in effect on the effective date of such order or decree, such increase(s) to be
billed to tenant monthly or for any greater period not exceeding every six
months, but in no event shall a decrease in said Consumer Price Index reduce the
rates charged by the Meter Company below the rate in effect at the time of such
order or decree.
In the event the sale of the electric current in the building containing the
demised premises is hereafter prohibited and/or regulated by any law hereinafter
enacted, or by any order or ruling of the Public Service Commission of the State
of New York, or by any judicial decision of any appropriate court, then the
Meter Company, by reason of such prohibition, and/or regulation and/or for any
other reason whatsoever, may, at its option and in its sole and absolute
discretion, elect to terminate the practice of submetering in the building
containing the demised premises; and upon such election, the Tenant will, upon
notice from the Meter Company, apply within five (5) days thereafter to the
appropriate Public Service Corporation servicing the building containing the
demised premises for electric service, and comply with all the rules and
regulations of such Public Service Corporation, and all costs associated with
and pertaining thereto, and the Meter Company shall be relieved of any further
obligation to furnish electric current to the Tenant pursuant to this rider. The
Meter Company may, however, if it so elects, furnish unmetered current to the
Tenant, and the Tenant shall pay to the Meter Company on the first day of the
month next following such furnishing of unmetered current to be pro rated to the
first of the month and monthly thereafter during the term of this lease, so long
as unmetered electric current is furnished to the Tenant, a sum equal to
one-twelfth of the invoices billed to the Tenant for all electric current
consumed in the demised premises for the twelve month period directly preceding
the month in which the furnishing of unmetered current to the Tenant is
commenced by the Meter Company and/or as estimated at any time by the Meter
Company as hereinabove and below provided. The Tenant also agrees to pay its
proportionate share of the building's monthly public light and power electric
consumption and usage as determined by the Meter Company based upon the
building's monthly utility bill as received from Consolidated Edison Company of
New York, Inc., its successor or any other company supplying electrical current
to the building and said proportionate electrical consumption and usage shall be
added to the Tenant's monthly bill. In the event the Meter Company supplies
unmetered electric current to the Tenant, any and all applications and security
already on deposit with the Meter Company from the Tenant, to secure payment for
current consumed, shall be held by the Meter Company to secure payment of
Tenant's monthly charge for the supply of unmetered current to the Tenant by the
Meter Company plus additions thereto, including new applications, from tenants
receiving unmetered electric current in the demised premises, as may be demanded
by the Meter Company to secure two month's payment of Tenant's monthly charge as
estimated by the Meter Company. The Meter Company shall have the right, in the
event of any non-payment by the Tenant of such bill within three (3) days after
rendition, to discontinue and cut off the use of electric current to the Tenant
without further notice without releasing the Tenant from any liability under
this lease, and without the Landlord or said Meter Company incurring any
liability for any damage caused by such discontinuance of service. Tenant will
not install or use any electrically operated equipment, machinery
Page 13 of 14
14
or appliances which were not in the demised premises during the twelve month
period immediately preceding the Meter Company supplying unmetered electric
current to the demised premises, as aforesaid, nor shall Tenant make any change
in the wiring of the demised premises without the prior written consent of the
Meter Company first obtained. If after the date the Meter Company commences
supplying unmetered current to the Tenant, any additional electrically operated
equipment is installed in the premises or the hours of usage of the electric
installation are increased in the demised premises, then the monthly payment to
the Meter Company shall be increased to equal the value of the additional
electric current consumed by such newly installed electrically operated
equipment and/or increased hours of usage of the electric installation, such
increased value to be determined by the Tenant's base rate in effect at the time
of such installation of additional electrically operated equipment and/or
increased hours of usage, same to be determined by the Meter Company. Tenant
shall pay the amount of such increase or increases retroactively to the date of
the installation of all newly installed electrically operated equipment and/or
the increase in usage by the Tenant. If after the date the Meter Company
commences supplying unmetered electric current to the Tenant there is any
increase in the utility bill, charge or cost is imposed upon the building at any
time from any source, such increase or increases shall be charged to and paid by
the Tenant to the Meter Company at a sum equal to the same percentage of
increase as received by the building and said same percentage of the increase
shall be charged to the Tenant over and above the Tenant's monthly base rate
then in effect as of the date of such increase, provided such increase, if any,
results in a higher yield to the Meter Company. In the event any legislature,
order of the Public Service Commission, or any judicial or governmental body, or
any executive order or decree from any governmental body after the date hereof
establishes, enacts, orders or decrees any wage and price controls, of any kind,
establishing, limiting, freezing or reducing the rates charged by the public
utility company supplying electric current to the building containing the
demised premises, then the Meter Company, at its option, may increase the
monthly charges for supplying unmetered current from and after the effective
date of said order or decree by the same percentage of increase as the United
States Consumer Price Index for Urban Consumers prepared by the United States
Government, Department of Labor, Bureau of Labor Statistics, or successor
thereto is increased over and above the index in effect on the effective date of
such order or decree; such increase(s) to be billed to tenant monthly or for any
greater period not exceeding every six months, but in no event shall a decrease
in Consumer Price Index reduce the monthly charges for the supply of unmetered
current by the Meter Company below the charges in effect at the time of such
order or decree. If for any reason the Meter Company, within it sole and
absolute discretion, elects or is required to terminate the furnishing or
unmetered current, as hereinabove described, or in the event permission is
granted to the Tenant by the Meter Company for direct service from the utility,
the Tenant will, at its own cost and expense, furnish and install all risers,
service wiring, switches, meter equipment and meters and any and all other
equipment or related expenses, charges or costs that may be necessary for such
installation and will, at its own cost and expense, maintain and keep in good
repair, all such riser or risers, wiring and/or switch or switches, metering
equipment and/or meter or meters; and all such wiring and/or and/or switches
and/or meters so installed shall be, become and remain the property of the
building but the building may, at its option, demand of the Tenant and the
Tenant shall, upon such demand, remove all such meters or switches at Tenant's
own cost and expense. In the event any legislature, order of the Public Service
Commission or any judicial or governmental body enacts an law, ruling or
regulation to effect the service classification, rate or charge under which the
Tenant receives unmetered electric current from the Meter Company, then and in
such event Tenant will pay to the Meter Company that rate or charge as set forth
by said legislature, order of the Public Service Commission or judicial or
governmental body and an additional amount as determined by the Meter Company
for the rental, use maintenance and amortization of the building electrical
distribution system including any and all switches, risers, meters, wiring and
other equipment that together with the rate set forth by said legislature, order
of the Public Service Commission shall equal the rates or charges hereinabove
described and set forth for furnishing unmetered electric current.
Notwithstanding anything hereinabove set forth, the Tenant agrees to pay the
Meter Company for metered or unmetered electric current a minimum service charge
of $25.00 a month, in addition to any and all rates and charges billed to
tenant. Anything to the contrary notwithstanding, if at any time the Meter
Company elects to furnish unmetered current or sell electric current from any
source whatsoever to the Tenant, then and in either of such events, Tenant
agrees to discontinue the purchase of electric service within ten (10) days from
the date of notice thereof from the Public Service Company servicing the part of
the city where the building is located, or from any other source, and to sign a
release, or any other necessary papers required by said utility company for the
discontinuance of electric service; and the Tenant agrees to purchase from or
pay to the Meter Company, as the case may be, the cost and installation of all
meters as may be necessary in the sole discretion of the Meter Company and for
all electric current consumed in the demised premises subject to all of the
terms and conditions as set forth above. No current shall be furnished until the
equipment of the Tenant has been approved by the proper public authorities, the
New York Board of Fire Underwriters and the New York Fire Insurance Rating
Organization or similar organization having jurisdiction, and no changes shall
be made in such equipment without the consent of the Meter Company. The Tenant
shall make no changes in and/or additions to the electrical equipment, wiring
and/or appliances in the demised premises, without the written consent of the
Meter Company first had and obtained. Rigid conduit only will be allowed by the
Landlord for exposed work.
Tenant's rate for electric shall be Con Edison's Service Classification #4 + 10%
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