STANDARD FORM OF OFFICE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
Agreement of Lease, made as of this 4th day of May, 1994, between 40th
Associates, a New York Limited Partnership having an address at 110 East 59th
Street, New York, New York 10022 party of the first part, hereinafter referred
to as OWNER, and/or LANDLORD, and LONDON FOG CORPORATION, a Delaware Corporation
with offices located at 1332 Londontown Boulevard, Eldersburg, Maryland
21784-5399 party of the second part, hereinafter referred to as Tenant,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from
Owner the entire 18th, 19th, 20th, 21st and Penthouse Floors (the "demised
premises" or "Demised Premises") (See ARTICLE 62)
in the building known as 8 West 40th Street (the "Building") in the Borough of
Manhattan, City of New York, for a term of Fifteen (15) Years ("Term") (or until
the Term shall sooner cease or expire pursuant to the terms of this lease or
pursuant to law) to commence on October 1, 1994 (the "Commencement Date") and to
end on September 30, 2009 (the "Expiration Date") at the fixed annual rent (the
"Base Rent") of: See ARTICLE 43
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that Tenant shall
pay the first monthly installment(s) on the execution hereof (unless
this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs distributees, executors,
administrators, legal representatives, successors and assigns, hereby convenant
as follows:
RENT OCCUPANCY: 1. Tenant shall pay the rent as above and as hereinafter
provided. 2. Tenant shall use and occupy demised premises for Executive and
General Offices and Showrooms, and for no other purpose.
TENANT ALTERATIONS: 3. Tenant shall make no changes in or to the demised
premises of any nature without Owner's prior written consent. Subject to the
prior written consent of Owner, which consent shall not be unreasonably withheld
or delayed, and to the provisions of this article, Tenant at Tenant's expense,
may make alterations, installations, additions or improvements which are
nonstructural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner which consent shall not be
unreasonably withheld or delayed. Tenant shall, before making any alterations,
additions, installations or improvements, at its expense, obtain all permits,
approvals and certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval thereof and shall
deliver promptly duplicates of all such permits, approvals and certificates to
Owner and Tenant agrees to carry and will cause Tenant's contractors and
sub-contractors to carry such workman's compensation, general liability,
personal and property damage insurance as Owner may reasonably 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 after notice thereof, at
Tenant's expense, by filing the bond requried by law. All fixtures and all
paneling, partitions, railings and like installations, installed in the premises
at any time, either by Tenant or by Owner in Tenant's behalf, shall, upon
installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises. Nothing in this Article shall be
construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises, Tenant shall immediately and at its expense, repair nad
restore the premises to the condition existing prior to installation and repair
any damage to the demised premises or the building due to such removal. All
property premitted to be removed, by Tenant at the end of the term remaining in
the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the premises by Owner, at Tenant's expense.
MAINTENANCE and REPAIRS 4. Tenant shall, throughout the term of this lease, take
good care of the demised premises and fixtures and appurtenances therein. Tenant
shall be responsible for all damage or injury to the demised premises or any
other part of the building and the systems and equipment thereof, whether
requiring structural or nonstructural repairs caused by or resulting from
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licensees, or
which arise out of any work, labor, service or equipment done for or supplied to
Tenant or any subtenant or arising out of the installation, use or operation of
the propety or equipment of Tenant or any subtenant. Tenant shall also repair
all damage to the building and the demised premises caused by the moving of
Tenant's fixtures, furniture and equipment. Tenant shall promptly make, at
Tenant's expense, all repairs in and to the demised premises for which Tenant is
responsible, using only the contractor for the trade or trades in question,
selected from a list of at least four contractors per trade submitted by Owner.
Any other repairs in or to the building or the facilities and systems thereof
for which Tenant is responsible shall be performed by Owner at the Tenant's
reasonable expense. Owner shall maintain in good working order and repair the
exterior and the structural portions of the building, including the structural
portions of its demised premises, and the public portions of the building
interior and the building plumbing, electrical, heating and ventilating systems
(to the extent such systems presently exist) serving the demised premises.
Tenant agrees to give prompt notice of any defective condition in the premises
for which Owner may be responsible hereunder. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Owner by
reason of inconvenience, annoyance or injury to business arising from Owner or
others making repairs, alterations, additions or improvements in or to any
portion of the building or the demised premises or in and to the fixtures,
appurtenances or equipment thereof. Owner agrees to perform any repair required
pursuant to this Article with reasonable efforts to the extent practicable to
minimize interference with Tenant's business, provided Owner shall not thereby
be required to incur any additional expense for overtime labor, or otherwise. It
is specifically agreed that Tenant shall not be entitled to any setoff or
reduction of rent by reason of any failure of Owner to comply with the covenants
of this or any other article of this Lease. Tenant agrees that Tenant's sole
remedy at law in such instance wil be by way of an action for damages for breach
of contract. The provisions of this Article 4 shall not apply in the case of
fire or other casualty which are dealt with in Article 9 hereof
WINDOW CLEANING: 5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned from the outside in violation
of Section 202 of the Labor Law or any other applicable law or of the Rules of
the Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
REQUIREMENTS of LAW, FIRE INSURANCE, FLOOR LOADS: 6. Prior to the commencement
of the lease term, if Tenant is then in possession, and at all times thereafter,
Tenant, at Tenant's sole cost and expense, shall promptly comply after notice
from Owner with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, Insurance
Services office, or any similar body which shall impose any violation, order or
duty upon Owner or Tenant with respect to the demised premises, whether or not
arising out of Tenant's manner of use (but not Tenant's mere use) thereof,
(including Tenant's permitted use) or, with respect to the building if arising
out of Tenant's
manner of use (but not Tenant's mere use) of the premises or the building
(including the use permitted under the lease). Nothing herein shall require
Tenant to make structural repairs or alterations unless Tenant has, by its
manner of actual use of the demised premises or method of operation therein,
violated any such laws, ordinances, orders, rules, regulations or requirements
with respect thereto. Tenant may, after securing Owner to Owner's reasonable
satisfaction against all damages, interest, penalties and expenses, including,
but not limited to, reasonable attorney's fees, by cash deposit or by surety
bond in an amount and in a company reasonably satisfactory to Owner, contest and
appeal any such laws, ordinances, orders, rules, regulations or requirements
provided same is done with all reasonable promptness and provided such appeal
shall not subject Owner to prosecution for a criminal offense or constitute a
default under any lease or mortgage under which Owner may be obligated, or cause
the demised premises or any part thereof to be condemned or vacated. Tenant
shall not do or permit any act or thing to be done in or to the demised premises
which is contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner with respect to the demised premises or the building of which
the demised premises form a part, or which shall or might subject Owner to any
liability or responsibility to any person or for property damage. Tenant shall
not keep anything in the demised premises except as now or hereafter permitted
by the Fire Department, Board of Fire Underwriters, Fire Insurance Rating
Organization or other authority having jurisdiction, and then only in such
manner and such quantity so as not to increase the rate for fire insurance
applicable to the building, nor use the premises in a manner which will increase
the insurance rate for the building or any property located therein over that in
effect or the dates possession of any portion of the demised premises is given
to Tenant. Tenant shall pay all costs, expenses, fines penalties, or damages,
which may be imposed upon Owner by reason of Tenant's failure to comply with the
provisions of this article and if by reason of such failure the fire insurance
rate shall, at the beginning of this lease or at any time thereafter, be higher
than it otherwise would be, then Tenant shall reimburse Owner, as additional
rent hereunder, for that portion of all fire insurance premiums thereafter paid
by Owner which shall have been charged because of such failure by Tenant. In any
action or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up" of rate for the building or demised premises issued by the New York
Fire Insurance Exchange, or other body making fire insurance rates applicable to
said premises shall be conclusive evidence of the facts therein stated and of
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, heavy business machines and mechanical
equipment. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's reasonable judgment, to
absorb and prevent vibration, noise and annoyance.
Subordination: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request. Owner
agrees that it shall promptly obtain and submit to Tenant a non-disturbance
agreement for the benefit of the Tenant from the holders of any mortgages
presently affecting the demised premises or hereafter created during the Term.
Such non-disturbance agreement shall be in form and content then used by such
holder, but shall provide, among other things, that so long as Tenant is not in
default in the payment of rent or any other covenant or condition of this lease,
(i) its right as Tenant hereunder shall not be affected or terminated, (ii) its
possession of the demised premises shall not be disturbed, (iii) no action or
proceedings shall be commenced to remove or evict Tenant, and (iv) this lease
shall continue in full force and effect notwithstanding the foreclosure of the
mortgage prior to the expiration or termination of this lease. Owner shall pay
all costs and expenses incurred by Owner in connection with such non-disturbance
agreement. The inability of the Owner to obtain such non-disturbance agreement
shall not be deemed a default of Owner's obligations under this lease or impose
any claim in favor of Tenant against Owner by reason thereof or affect the
validity of this lease; provided, however, that this lease shall not be
subordinate to any mortgage unless and until such non-disturbance agreement is
obtained from the holder of any mortgage and submitted to Tenant.
With respect to the existing Mortgage currently held by The Dime Savings Bank of
New York, FSB (the "Dime"), in the event such non-disturbance agreement is not
received from Dime within sixty (60) days from Lease execution, Tenant shall
have the right to terminate and end this Lease (and the term hereby created is
limited accordingly), by giving written notice to Landlord at the address
designated in this Lease, sent by registered or certified mail, return receipt
requested, and, upon the expiration of the time fixed in such notice, this Lease
and the term hereby granted and all the rights of Landlord, shall terminate and
come to an end without any other or further notice or act on the part of the
Tenant, with the same force and effect as though the day fixed in said notice
were the expiration of the original term of the instant Lease herein.
Property--Loss, Damage, Reimbursement, Indemnity: 8. Owner or its agents shall
not be liable for any damage to property of Tenant or of others entrusted to
employees of the building, nor for loss of or damage to any property of Tenant
by theft or otherwise, nor for any injury or damage to persons or property
resulting from any cause of whatsoever nature, unless caused by or due to the
negligence or wilful act of Owner, its contractors, agents, servants or
employees. Owner or its agents will not be liable for any such damage caused by
other tenants or persons in, upon or about said building or caused by operations
in construction of any private, public or quasi public work.
If at any time any windows of the demised premises are temporarily closed or
darkened due to requirements of law, Owner shall not be liable for any damage
Tenant may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement or diminution of rent nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction. Tenant shall
indemnify and save harmless Owner against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which Owner shall not be
reimbursed by insurance, including reasonable attorneys fees, paid, suffered or
incurred as a result of any breach by Tenant, Tenant's agents, contractors,
employees, invitees, or licensees of any covenant or condition of this lease, or
the carelessness, negligence or wilful act of the Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
Destruction, Fire and Other Casualty: 9. (a) If the demised premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give immediate
notice thereof to Owner and this lease shall continue in full force and effect
except as hereinafter set forth. (b) If the demised premises are partially
damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent, until
such repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable for
the conduct of Tenant's business by fire or other casualty, then the rent shall
be proportionately paid up to the time of the casualty and thenceforth shall
cease until the
date when the premises shall have been repaired and restored by Owner, subject
to Owner's right to elect not to restore the same as hereinafter provided. (d)
If the demised premises are rendered wholly unusable or (whether or not the
demised premises are damaged in whole or in part) if the building shall be so
damaged that Owner shall decide to demolish it or to rebuild it, then, in any of
such events, Owner or Tenant may elect to terminate this lease by written notice
to the other party given within sixty (60) days after such fire or casualty,
specifying a date for the expiration of the lease, which date shall not be more
than thirty (30) days after the giving of such notice. If this lease shall not
be terminated pursuant to the foregoing provisions of this Article 9, then
within sixty (60) days after the date when all or more than 30% of the demised
premises are rendered unusable by Tenant for the ordinary conduct of its
business due to a fire or other casualty, Owner shall deliver to Tenant a
certification from a licensed architect or reputable contractor selected by
Owner setting forth an estimate as to the time after such fire or other casualty
reasonably required to repair the damage caused thereby. If the period set forth
in any such estimate exceeds one (1) year, Tenant may elect to terminate this
lease by notice to Owner given not later than thirty (30) days following
Tenant's receipt of such estimate, time being of the essence with respect to
such notice. If Tenant shall not have had the right to terminate this lease due
to the estimated time for completion being not greater than one (1) year and
Owner fails to complete the restoration within such one (1) year period (subject
to the delay provisions of this Article 9), then Tenant shall have the right to
terminate this lease by notice to Owner given not later than thirty (30) days
following the expiration of such one (1) year period, time being of the essence
with respect to such notice. If the demised premises are damaged by fire or
other casualty during the last eighteen (18) months of the term of the lease,
and such damage will require more than sixty (60) days to repair, Landlord or
Tenant may terminate this lease by notice to the other party given not later
than thirty (30) days following the occurrence of the fire or other casualty.
Upon the date specified in any notice of termination given by Owner or Tenant
pursuant to this Article 9 the term of this lease shall expire as fully and
completely as if such date were the date set forth above for the termination of
this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Landlord's rights and remedies against Tenant
under the lease provisions in effect prior to such termination, and any rent
owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be promptly
returned to Tenant. Unless the party 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 fifteen days after
written notice from Owner that the premises are substantially ready for Tenant's
occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right of recovery against the
other or any claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party 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 and assigns to
Owner, Tenant's entire interest in any such award. Anything in this Article 10
to the contrary notwithstanding, Tenant shall have the right to make a separate
claim in any such eminent domain proceeding for its property and moving
expenses, provided that Tenant's claim shall not impair the ability of Owner to
make its claim or reduce the amount of Owner's reward.
ASSIGNMENT, MORTGAGE, ETC.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. Transfer of the majority of the stock of a corporate Tenant shall be
deemed an assignment. If this lease be assigned, or if the demised premises or
any part thereof be underlet or occupied by anybody other than Tenant, Owner
may, after default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, underletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in no wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
ELECTRIC CURRENT: 12. 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, rasonably exercised, will
overload such installations or interfere with the use thereof by other tenants
of the building. The change at any time of the character of electric service
shall in no wise make Owner liable or responsible to Tenant, for any loss,
damages or expenses which Tenant may sustain unless caused by Owner's or its
agents', employees', or contractors' negligence or wilful act.
ACCESS TO PREMISES 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any time,
and, at other reasonable times upon advance notice to Tenant (which need not be
written) the same and to make such repairs, replacements and improvements as
Owner may deem necessary and reasonably desirable to the demised premises or to
any other portion of the building or which Owner may elect to perform. Tenant
shall permit Owner to use and maintain and replace pipes and conduits in and
through the demised premises and to erect new pipes and conduits therein
provided they are concealed within the walls, floor, or ceiling. Owner may,
during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. Owner agrees to use reasonable efforts to the extent
practicable to minimize interference with Tenant's business in connection with
any work performed pursuant to Articles 13 and 20; provided Owner shall not
thereby be required to incur any additional expense for overtime labor or
otherwise. Owner agrees, at its expense, to repair and restore the demised
premises subsequent to conducting any work therein to the condition existing
prior thereto. Throughout the term hereof Owner shall have the right to enter
the demised premises at reasonable hours for the purpose of showing the
same to prospective purchasers or mortgagees of the building, and during the
last six months of the term for the purpose of showing the same to prospective
tenants. If Tenant is not present to open and permit an entry into the premises,
after notice (except in an emergency when no notice shall be required), 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 of
Tenant's propety therefrom Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation and such act shall have no
effect on this lease or Tenant's obligations hereunder.
VAULT, VAULT SPACE, AREA: 14. No Vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder, anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, not shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant.
OCCUPANCY: 15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Owner covenants that the uses of the demised
premises are permitted pursuant to Article 2 hereof. Tenant has inspected the
premises and accepts them as is, subject to the riders annexed hereto with
respect to Owner's work, if any. In any event, Owner makes no representation as
to the condition of the premises and Tenant agrees to accept the same subject to
violations, whether or not of record.
BANKRUPTCY: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor which case shall not
have been dismissed within sixty (60) days after the commencement thereof; 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 rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of six (6%) percent 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 or if the demised premises become vacant or deserted; or if any execution
or attachment shall be issued against Tenant or any of Tenant's property
whereupon the demised premises shall be taken or occupied by someone other than
Tenant; or if this lease be rejected under Section 235 of Title 11 of the U.S.
Code (bankruptcy code); or if Tenant shall fail to take possession of the
premises within sixty (60) days after the commencement of the term of this
lease, then, in any one or more of such events, upon Owner serving a written
five (5) days' notice in the case of any monetary default and twenty (20) days'
notice in the case of any non monetary default days notice upon Tenant
specifying the nature of said default and upon the expiration of said five (5)
or twenty (20) days, as the case may be, 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 twenty (20) day period, and if Tenant shall not have diligently commenced
curing such default within such twenty (20) 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, then and in any of such events Owner may
without further notice, re-enter the demised premises and dispossess Tenant by
summary proceedings or otherwise, and the legal representative of Tenant or
other occupant of demised premises and remove their effects and hold the premise
as if this lease had not been made, and Tenant hereby waives the service of
notice of this lease had not been made, and Tenant hereby waives the service of
notice of intention to re-enter or to institute legal proceedings to that end.
If Tenant shall make default hereunder prior to the date fixed as the
commencement of any renewal or extension of this lease, Owner may cancel and
terminate such renewal or extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION: 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, (b) Owner may re-let the premises or any part or
parts thereof, either in the name of Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in this lease,
and/or (c) Tenant or the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the demised premises for each
month of the period which would otherwise have constituted the balance of the
term of this lease. The failure of Owner to re-let the 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
reasonable legal expenses, attorneys' fees, brokerage, advertising and for
keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease and any suit brought to collect
the amount of the deficiency, for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any 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
reasonable judgment, considers advisable and necessary for the purpose of
re-letting the demised premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid Owner shall in no event be liable
in any way whatsoever for failure to re-let the demised premises, or in the
event that the demised premises are re-let, for failure to collect the rent
thereof under such re-letting, and in no event shall Tenant be entitled to
receive any excess, if any, of such net rents collected over the sums payable by
Tenant to Owner hereunder. In the event of a breach or threatened breach by
Tenant of any of the covenants or provisions hereof, Owner shall have the right
of injunction and the right to invoke any remedy allowed at law or in equity as
if re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this lease of any particular remedy, shall not preclude Owner
from any other remedy, in law or in equity. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future laws in
the event of Tenant being evicted or dispossessed for any cause, or in the event
of Owner obtaining possession of demised premises, by reason of the violation by
Tenant of any of the covenants and conditions of this lease, or otherwise.
FEES AND EXPENSES 19. If Tenant shall default after notice and applicable grace
period in the observance or performance of any term or covenant on Tenant's part
to be observed or performed under or by virtue of any of the terms or provisions
in any article of this lease, then, unless otherwise provided elsewhere in this
lease, Owner may immediately or at any time thereafter and without notice
perform the obligation of Tenant thereunder. If Owner, in connection with the
foregoing or in connection with any default by Tenant in the covenant to pay
rent hereunder, makes any expenditures or incurs any obligations for the payment
of money, including but not limited to attorney's fees, in instituting,
prosecuting or defending any action or proceeding, then, to the extent that
Owner prevails thereunder, Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within five (5) days of rendition of any 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 (provided that, at all times, Tenant shall have
reasonable access to the demised premises) and to change the name, number or
designation by which the building may be known. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Owner by
reason of inconvenience, annoyance or injury to business arising from Owner or
other Tenants making any repairs in the building or any such alterations,
additions and improvements. Owner agrees to use reasonable efforts to the extent
practicable to minimize interference with Tenant's business in connection with
any work performed pursuant to Articles 13 and 20; provided Owner shall not
thereby be required to incur any additional expense for overtime labor or
otherwise. Owner agrees, at its expense, to repair and restore the demised
premises subsequent to conducting any work therein to the condition existing
prior thereto. Furthermore, Tenant shall not have any claim against Owner by
reason of Owner's imposition of such controls of the manner of access to the
building by Tenant's social or business visitors as the Owner may deem necessary
for the security of the building and its occupants.
NO REPRESENTATIONS BY OWNER: 21. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which
tion or any other matter or thing affecting or related to the premises except as
herein expressly set forth and no rights, easements or licenses are acquired by
Tenant by implication or otherwise except as expressly set forth in the
provisions of this lease. Tenant has inspected the demised premises and is
thoroughly acquainted with their condition and agrees to take the same "as is"
and acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects and reasonable matters not
ascertainable after due diligence. 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
exectory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
END OF TERM: 22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If the
last day of the term of this Lease or any renewal thereof, falls on Sunday, this
lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
QUIET ENJOYMENT: 23. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed. Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 31 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
FAILURE TO GIVE POSSESSION: 24. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof, because of
the holding-over or retention of possession of any tenant, undertenant or
occupants or if the demised premises are located in a building being
constructed, because such building has not been sufficiently completed to make
the premises ready for occupancy or because of the fact that a certificate of
occupancy has not been procured or for any other reason, Owner shall not be
subject to any liability for failure to give possession on said date and the
validity of the lease shall not be impaired under such circumstances, nor shall
the same be construed in any wise to extend the term of this lease, but the rent
payable hereunder shall be abated (provided Tenant is not responsible for
Owner's inability to obtain possession) until after Owner shall have given
Tenant written notice that the premises are substantially ready for Tenant's
occupancy. If permission is given to Tenant to enter into the possession of the
demised premises or to occupy premises other than the demised premises prior to
the date specified as the commencement of the term of this lease, Tenant
covenants and agrees that such occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease, except as to the
covenant to pay rent. The provisions of this article are intended to constitute
"an express provision to the contrary" within the meaning of Section 223-a of
the New York Real Property Law.
NO WAIVER: 25. The failure of Owner or Tenant 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 either party
unless such waiver be in writing signed by the other party. No payment by Tenant
or receipt by Owner of a lesser amount than the monthly rent herein stipulated
shall be deemed to be other than on account of the earliest stipulated rent, nor
shall any endorsement or statement of any check or any letter accompanying any
check or payment as rent be deemed an accord and satisfaction, and Owner may
accept such check or payment without prejudice to Owner's right to recover the
balance of such rent or pursue any other remedy in this lease provided. No act
or thing done by Owner or Owner's agents during the term hereby demised shall be
deemed an acceptance of a surrender of said premises, and no agreement to accept
such surrender shall be valid unless in writing signed by Owner. No employee of
Owner or Owner's agent shall have any power to accept the keys of said premises
prior to the termination of the lease and the delivery of keys to any such agent
or employee shall not operate as a termination of the lease or surrender of the
premises.
WAIVER OF TRIAL BY JURY: 26. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall and they hereby do waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use of or occupancy of
said premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any summary proceeding
for possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a counterclaim
under Article 4 except for any compulsory counterclaim.
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 the Tenant to be performed shall in no wise be affected, impaired or
excused because Owner is unable to fulfill any of its obligations under this
lease or to supply or is delayed in supplying any service expressly or impliedly
to be supplied or is unable to make, or is delayed in making any repair,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Owner is prevented or delayed from so
doing by reason of strike or labor troubles or any cause whatsoever including,
but not limited to, government preemption in connection with a National
Emergency or by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the conditions of
supply and demand which have been or are affected by war or other emergency.
Owner shall exercise reasonable efforts to eliminate such inability, delay or
prevention and to minimize its effect on Tenant's business.
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.
SERVICES PROVIDED BY OWNERS 29. As long as Tenant is not in default under any of
the covenants of this lease, Owner shall provide: (a) necessary elevator
facilities on business days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m.
to 1 p.m. and have one elevator subject to call at all other times; (b) heat to
the demised premises when and as required by law, on business days from 8 a.m.
to 6 p.m.; (c) water for ordinary lavatory purposes and for Tenant's pantry but
if Tenant uses or consumes water for any other purposes or in unusual quantities
(of which fact Owner shall be the sole judge), Owner may install a water meter
at Tenant's reasonable expense which Tenant shall thereafter maintain at
Tenant's expense in good working order and repair to register such water
consumption and Tenant shall pay for water consumed as shown on said meter as
additional rent as and when bills are rendered; (d) cleaning service for the
demised premises on business days at Owner's expense provided that the same are
kept in order by Tenant. (f) Owner reserves the right to stop services of the
heating, elevators, plumbing, air-conditioning, power systems or cleaning or
other services, if any, when necessary by reason of accident or for repairs,
alterations, replacements or improvements necessary or desirable in the
reasonable judgment of Owner for as long as may be reasonably required by reason
thereof. If the building of which the demised premises are a part supplies
manually-operated elevator service, Owner at any time may substitute
automatic-control elevator service and upon ten days' written notice to Tenant,
proceed with alterations necessary therefor without in any wise affecting this
lease or the obligation of Tenant hereunder. The same shall be done with a
minimum of inconvenience to Tenant and Owner shall pursue the alteration with
due diligence.
CAPTIONS: 30. The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provisions thereof.
DEFINITIONS: 31. The term "office", or "offices", wherever used in this lease,
shall not be construed to mean premises used as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, barber shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays
(except such portion thereof as is covered by specific hours in Article 29
hereof), Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
FOOTNOTES TO THE LEASE BETWEEN 40TH ASSOCIATES, as Landlord, and LONDON FOG
CORPORATION, as Tenant dated May 4th, 1994
================================================================================
1. which consent shall not be unreasonably withheld or delayed,
2. which approval shall not be unreasonably withheld or delayed.
3. reasonably
4. after notice thereof,
4a. four
4b. reasonable
5. Owner agrees to perform any repair required pursuant to this Article 4 with
reasonable efforts to the extent practicable to minimize interference with
Tenant's business, provided Owner shall not thereby be required to incur
any additional expense for overtime labor, or otherwise.
5a. after notice from Owner
5b. (but not Tenant's mere use)
6. actual
6a. reasonable
6b. reasonably
7. on the dates possession of any portion of the demised premises is given to
Tenant.
7a. heavy
7b reasonable
8. Owner agrees that it shall promptly obtain and submit to Tenant a
non-disturbance agreement for the benefit of the Tenant from the holders of
any mortgages presently affecting the demised premises or hereafter created
during the Term. Such non-disturbance agreement shall be in form and
content then used by such holder, but shall provide, among other things,
that so long as Tenant is not in default in the payment of rent or any
other covenant or condition of this lease, (i) its right as Tenant
hereunder shall not be affected or terminated, (ii) its possession of the
demised premises shall not be disturbed, (iii) no action or proceedings
shall be commenced to remove or evict Tenant, and (iv) this lease shall
continue in full force and effect notwithstanding the foreclosure of the
mortgage prior to the expiration or termination of this lease. Owner shall
pay all costs and expenses incurred by Owner in connection with such
non-disturbance agreement. The inability of the Owner to obtain such
non-disturbance agreement shall not be deemed a default of Owner's
obligations under this lease or impose any claim in favor of Tenant against
Owner by reason thereof or affect the validity of this lease; provided,
however, that this lease shall not be subordinate to any mortgage unless
and until such non-disturbance agreement is obtained from the holder of any
mortgage and submitted to Tenant.
- i -
With respect to the existing Mortgage currently held by The Dime Savings
Bank of New York, FSB (the "Dime"), in the event such non-disturbance
agreement is not received from Dime within sixty (60) days from Lease
execution, Tenant shall have the right to terminate and end this Lease (and
the term hereby created is limited accordingly), by giving written notice
to Landlord at the address designated in this Lease, sent by registered or
certified mail, return receipt requested, and, upon the expiration of the
time fixed in such notice, this Lease and the term hereby granted and all
the rights of Landlord, shall terminate and come to an end without any
other or further notice or act on the part of the Tenant, with the same
force and effect as though the day fixed in said notice were the expiration
of the original term of the instant Lease herein.
9. or wilful act
9a. or
9b. due to requirements of law
10. contractors,
11. wilful act
12. for the conduct of Tenant's business
12a. or Tenant
12b. the other party
13. sixty (60)
14. thirty (30)
15. If this lease shall not be terminated pursuant to the foregoing provisions
of this Article 9, then within sixty (60) days after the date when all or
more than 30% of the demised premises are rendered unusable by Tenant for
the ordinary conduct of its business due to a fire or other casualty, Owner
shall deliver to Tenant a certification from a licensed architect or
reputable contractor selected by Owner setting forth an estimate as to the
time after such fire or other casualty reasonably required to repair the
damage caused thereby. If the period set forth in any such estimate exceeds
one (1) year, Tenant may elect to terminate this lease by notice to Owner
given not later than thirty (30) days following Tenant's receipt of such
estimate, time being of the essence with respect to such notice. If Tenant
shall not have had the right to terminate this lease due to the estimated
time for completion being not greater than one (1) year and Owner fails to
complete the restoration within such one (1) year period (subject to the
delay provisions of this Article 9), then Tenant shall have the right to
terminate this lease by notice to Owner given not later than thirty (30)
days following the expiration of such one (1) year period, time being of
the essence with respect to such notice. If the demised premises are
damaged by fire or other casualty during the last eighteen (18) months of
the term of the lease, and such damage will require more than sixty (60)
days to repair, Landlord or Tenant may terminate this lease by notice to
the other party given not later than thirty (30) days following the
occurrence of the fire or other casualty.
16. any notice of termination given by Owner or Tenant pursuant to this Article
9
- ii -
16a promptly
17. either party
18. fifteen
19. Anything in this Article 10 to the contrary notwithstanding, Tenant shall
have the right to make a separate claim in any such eminent domain
proceeding for its property and moving expenses, provided that Tenant's
claim shall not impair the ability of Owner to make its claim or reduce the
amount of Owner's reward.
20. unless caused by Owner's or its agents', employees' or contractors'
negligence or wilful act
21. upon advance notice to Tenant (which need not be written)
22. Owner agrees to use reasonable efforts to the extent practicable to
minimize interference with Tenant's business in connection with any work
performed pursuant to Articles 13 and 20; provided Owner shall not thereby
be required to incur any additional expense for overtime labor or
otherwise. Owner agrees, at its expense, to repair and restore the demised
premises subsequent to conducting any work therein to the condition
existing prior thereto.
23. after notice (except in an emergency, when no notice shall be required),
23a. Owner covenants that the uses of the demised premises are permitted
pursuant to Article 2 hereof.
24. which case shall not have been dismissed within sixty (60) days after the
commencement thereof;
25. six (6%) percent
25a. sixty (60)
26. five (5) days' notice in the case of any monetary default and twenty (20)
days' notice in case of any non-monetary default
27. five (5) or twenty (20) days, as the case may be,
28. twenty (20)
29. five (5)
30. further
31. reasonable
32. after notice and applicable grace period
33. to the extent that Owner prevails thereunder,
33a. (provided that, at all times, Tenant shall have reasonable access to the
demised premises)
34. and seasonable matters not ascertainable after due diligence
35. or Tenant
35a. either party
35b. the other party
- iii -
36. except for any compulsory counterclaim.
36a. Owner shall exercise reasonable efforts to eliminate such inability, delay
or prevention and to minimize its effect on Tenant's business.
36b. and for Tenant's pantry
36c. reasonable
37. to Tenant at least thirty (30) days prior to the proposed implementation
date thereof.
38. twenty (20)
- iv -
RIDER TO LEASE between 40TH ASSOCIATES, Landlord, and LONDON FOG CORPORATION,
Tenant, dated as of the 4th day of May, 1994
Re: 8 West 40th Street
New York, New York
18th, 19th, 20th, 21st
and Penthouse Floors
================================================================================
If and to the extent that any of the provisions of this Rider conflict or are
otherwise inconsistent with any of the printed provisions of this lease, whether
or not such inconsistency is expressly noted in this Rider, the provisions of
this Rider shall prevail.
37. Definitions
The following terms contained in this Article 37 shall have the meanings
hereinafter set forth as such terms are used throughout this lease, including
the exhibits, schedules and riders hereto (if any):
(A) "Base Tax Year" shall mean the Real Estate Taxes, as finally
determined for the calendar year 1995 (to wit, the average of the Real
Estate Taxes, as finally determined for the fiscal years July 1, 1994
through June 30, 1995 and July 1, 1995 through June 30, 1996).
(B) "Tenant's Proportionate Share" shall mean 22.52%, subject to
adjustment if additional space is leased to Tenant.
(C) "Base Operating Expenses" shall mean the Operating Expenses incurred
for 1995.
(D) "Operational Year" shall mean each calendar year during the Term
commencing with 1995.
(E) "Operational Year Operating Expenses" shall mean the Operating
Expenses incurred during the applicable Operational Year.
(F) "Electric Factor" initially shall mean $60,000.00 per annum, subject
to adjustment in accordance with the terms of Article 42.
(G) "Net Rent" shall mean (i) $624,000 per annum from October 1, 1994
through September 30 1997; (ii) $696,000 per annum from October 1,
1997 through September 30, 2001; (iii) $768,000 per annum from October
1, 2001 through September 30, 2004; and the annual sum set forth in
Article 45 from October 1, 2004 through September 30, 2009.
(H) "Base Electric Date" shall mean April 1, 1994.
(I) "Rent Commencement Date" shall mean April 1, 1995.
38. Rental Payments
(A) All payments other than Base Rent to be made by Tenant pursuant to this
lease shall be deemed additional rent and, in the event of any non-payment
thereof, Landlord shall have all rights and remedies provided for herein or by
law for non-payment of rent.
Re: 18th, 19th, 20th, 21st
and Penthouse Floors
8 West 40th Street
(B) All payments of Base Rent and additional rent to be made by Tenant
pursuant to this Lease shall be made by checks drawn upon a bank located in New
York City which is a member of the New York Clearing House Association or any
other bank, provided the checks of such bank are required to clear within the
same time periods as banks which are members of the New York Clearing House
Association or any successor thereto.
(C) If Landlord receives from Tenant any payment less than the sum of the
Base Rent and additional rent then due and owing pursuant to this lease, Tenant
hereby waives its right, if any, to designate the items to which such payment
shall be applied and agrees that Landlord, in its sole discretion, may apply
such payment in whole or in part to any Base Rent, any additional rent or to any
combination thereof then due and payable hereunder.
(D) Unless Landlord shall otherwise expressly agree in writing, acceptance
of Base Rent or additional rent from anyone other than Tenant shall not relieve
Tenant of any of its obligations under this lease, including the obligation to
pay Base Rent and additional rent, and Landlord shall have the right at any
time, upon notice to Tenant, to require Tenant to pay the Base Rent and
additional rent payable hereunder directly to Landlord (provided that Landlord
shall not be entitled to double payment of any Base Rent or additional rent).
Furthermore, such acceptance of Base Rent or additional rent shall not be deemed
to constitute Landlord's consent to an assignment of this lease or a subletting
or other occupancy of the demised premises by anyone other than Tenant, nor a
waiver of any of Landlord's rights or Tenant's obligations under this lease.
(E) Landlord's failure to timely bill all or any portion of any amount
payable pursuant to this lease for any period during the Term shall neither
constitute a waiver of Landlord's right to ultimately collect such amount or to
bill Tenant at any subsequent time retroactively for the entire amount so
unbilled, which previously unbilled amount shall be payable within thirty (30)
days after being so billed. Notwithstanding the foregoing, Landlord's failure to
bill Tenant for any amount payable pursuant to this Lease for a period in excess
of two (2) years shall constitute a waiver by Landlord of its right to collect
such amounts, provided Landlord received bills or other proof of the items of
which Tenant is being billed at least two (2) years prior to any such Tenant
billing.
39. Tax Escalation
(A) For purposes hereof:
(1) "Real Estate Taxes" shall mean all the real estate taxes and
assessments imposed by any governmental authority having jurisdiction upon the
Building and land upon which it is located ("Land") or any tax or assessment
hereafter imposed in whole or in part in substitution for such real estate taxes
and/or assessments.
(2) "Base Year Taxes" shall mean the Real Estate Taxes as finally
determined for the Base Tax Year.
Re: 18th, 19th, 20th, 21st
and Penthouse Floors
8 West 40th Street
(3) "Subsequent Tax Year" shall mean any tax fiscal year commencing
after the expiration of the Base Tax Year, except that Tenant shall be required
to pay any increase in Real Estate Taxes under this Article 39 commencing as of
July 1, 1995.
(B) If the Real Estate Taxes for any Subsequent Tax Year during the Term
exceed the Base Year Taxes (as initially imposed, if not finally determined
when a payment is due pursuant to Section (C)), Tenant shall pay Landlord
Tenant's Proportionate Share of such excess within fifteen (15) days after
Landlord shall furnish to Tenant a statement setting forth the amount thereby
due and payable by Tenant. If Real Estate Taxes are payable by Landlord to the
applicable taxing authority in installments, then Landlord shall bill Tenant for
Tenant's Proportionate Share of the Real Estate Taxes in corresponding
installments, such that Tenant's payment is due not more than five (5) days
prior to the date when Landlord is obligated to pay the Real Estate Taxes to the
applicable taxing authority. If the actual amount of Real Estate Taxes are not
known to Landlord as of the date of Landlord's statement, then Landlord may
nevertheless bill Tenant for such installment on the basis of a good faith
estimate, in which event Tenant shall pay the amount so estimated within fifteen
(15) days after receipt of such bill, subject to prompt refund by Landlord, or
payment by Tenant, upon a supplemental billing by Landlord once the amount
actually owed by Tenant is determined. Together with its first bill for Real
Estate Taxes for any Subsequent Tax Year, Landlord shall provide Tenant with a
copy of the current New York City tax bill for the Land and Building which was
used in the preparation of the settlement or other reasonable proof thereof.
Together with its first bill for Real Estate Taxes, Landlord shall also provide
Tenant with copies of the New York City tax bills for the Land and Building for
the Base Year Taxes or other reasonable proof of the Base Year.
(C) If the Base Year Taxes ultimately are less than the Real Estate Taxes
initially imposed upon the Land and the Building for the Base Tax Year, Tenant
shall pay Landlord, promptly upon demand, any additional amount thereby payable
pursuant to Section (B) for all applicable Subsequent Tax Years.
(D) If Landlord receives any refund of Real Estate Taxes for any Subsequent
Tax Year for which Tenant has made a payment pursuant hereto, Landlord shall
(after deducting from such refund all reasonable expenses incurred in connection
therewith) pay Tenant, Tenant's Proportionate Share of the net refund. If
Landlord succeeds in reducing any assessed valuation for the Land and the
Building prior to the billing of Real Estate Taxes for any Subsequent Tax Year,
Tenant shall pay Landlord Tenant's Proportionate Share of the reasonable
expenses so incurred by Landlord. Landlord shall bring a certiorari proceeding
for each Subsequent Tax Year in order to attempt to reduce the assessed
valuation of the Land and the Building for such year, unless Landlord, has
reasonable cause not to bring a certiorari proceeding for any Subsequent Year.
(E) If any Subsequent Tax Year is only partially within the Term, all
payments pursuant hereto shall be appropriately prorated, based on the portion
of the Subsequent Tax Year which is within the Term. Except as otherwise
provided herein: (1) Tenant's obligation to make the payments required by
Sections (B),
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(C) and (D) shall survive the Expiration Date or any sooner termination of this
lease; and (2) Landlord's obligation to make the payments required by Section
(D) shall survive the Expiration Date or any sooner termination of this lease.
(F) Where a "transition assessment" is imposed by the City .of New York for
any tax (fiscal) year, then the phrases "assessed valuation" and "assessments"
shall mean the transition or actual assessment, whichever is lower, for that tax
(fiscal) year.
40. Expense Escalation
(A) For all purposes of this lease "Operating Expenses" shall mean all
expenses incurred by Landlord, on an accrual basis, for the operation, cleaning
and maintenance of the Building and its plazas, sidewalks and curbs
(collectively, "Landlord's Property"), including all expenses incurred as a
result of Landlord's compliance with any of its obligations hereunder, and shall
include the following items (without limitation and without duplication):
(i) salaries, wages, medical, surgical and general welfare benefits
(including group life and medical insurance) and pension payments, payroll
taxes, workmen's compensation, union benefits paid by employer, unemployment
insurance, social security and other similar taxes of or with respect to
employees of Landlord and/or independent contractors engaged in operation and
maintenance;
(ii) payments made to independent contractors for maintenance,
cleaning and/or operation;
(iii) the cost of uniforms, including dry cleaning thereof, for
employees;
(iv) the cost of all gas, steam, heat, ventilation, air conditioning
and water (including sewer rental) for public areas of the Building, together
with any taxes thereon;
(v) the cost of all rent, casualty, war risk (if obtainable),
liability, excess liability, property damage, indemnification, plate glass,
multi-risk and other insurance covering Landlord and/or all or any portion of
Landlord's Property;
(vi) the cost of all supplies (including cleaning supplies), tools,
materials and equipment;
(vii) the cost of all charges to Landlord for electricity consumed for
the public areas of the Building and Building systems and equipment, together
with any taxes thereon;
(viii) repairs or replacements of non-capital items made by Landlord,
at its expense;
(ix) straight line depreciation or amortization (including interest at
the rate of two (2%) percent in excess of the "prime rate" or "base rate" of
Citibank, N .A . at the time such expenditure is made) of any expenditure for a
capital improvement which results in a reduction of Operating Expenses but only
to the extent of such reduction;
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(x) management fees customarily charged for similar office buildings
in the Grand Central area of midtown Manhattan;
(xi) vault, sales, use and frontage taxes;
(xii) dues and fees for trade and industry associations relating to
Land1ord's Property;
(xiii) Building and home-office (reasonably allocable to the Building
in accordance with generally acceptable accounting principles) administrative
costs for bookkeeping and telephone;
(xiv) attorney's fees and fees paid to other professionals for
services rendered in connection with the maintenance and/or operation of
Landlord's Property;
(xv) any and all expenses incurred by Landlord in connection with
compliance with any law, rule, order, ordinance, regulation or requirement of
any governmental authority having or asserting jurisdiction or any order, rule,
requirement or regulation of any utility company, insurer of Landlord or the
Board of Fire Underwriters (or successor organization); and
(xvi) any and all other expenses incurred by Landlord for operation
and maintenance of Landlord's Property which are customary for similar buildings
in New York City.
(B) For purposes of this Lease, the term "Operating Expenses" shall not
include:
(i) expenses related to leasing space in the Building (including the
cost of tenant improvements, leasing commissions, legal fees and advertising and
promotional expenses);
(ii) fees and disbursements of attorneys, accountants and other
consultants incurred for the collection of tenant accounts, the negotiation of
leases, disputes between Landlord and tenants or occupants of the Building or
disputes with brokers with respect to brokerage commissions;
(iii) the cost of electricity and other utilities and services
furnished directly to the Demised Premises or to other space leased or available
for lease in the Building;
(iv) the cost of repairs or replacements incurred by reason of fire or
other casualty or condemnation;
(v) expenditures for refinancing and for mortgage debt service;
(vi) Real Estate Taxes;
(vii) costs and expenses otherwise includable in Operating Expenses,
to the extent that Landlord is reimbursed from other sources for such costs and
expenses;
(viii) salaries, fringe benefits and bonuses for executives above the
grade of building manager;
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(ix) costs incurred with respect to removal or encapsulation of
asbestos and other hazardous materials;
(x) costs incurred in the transfer or disposition of all or any part
of the Building or any interest herein;
(xi) fees or expenditures paid by Landlord to any affiliate of
Landlord to the extent that such payment exceeds the amount which would have
been payable in the absence of such a relationship;
(xii) basic rent, additional rent and other charges payable by
Landlord under any lease or sublease to or assumed by Landlord;
(xiii) arbitration expenses unrelated to the operation, cleaning and
maintenance of the Building or in connection with leasing space, determining
rentals or resolving disputes with tenants; and
(xiv) costs and expenses incurred in relocating tenants within the
Building.
(C) In determining the amount of the Base Operating Expenses or the
Operating Expenses for any Operational Year, if less than ninety-five (95%)
percent of the rentable area of the Building shall have been occupied by tenants
at any time during any such year, the Base Operating Expenses or the Operating
Expenses for any such Operating Year shall be adjusted to an amount equal to the
like expenses which would normally be expected to be incurred had the occupancy
of the Building been ninety-five (95%) percent throughout the applicable year.
All such adjustments shall be made by Landlord in a reasonable and consistent
manner and a copy of Landlord's calculation shall be provided to Tenant upon
written request.
(D) If Landlord is not furnishing any particular work or service (the cost
of which if performed by Landlord would constitute an Operating Expenses) to a
tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, the Operational Year Operating Expenses for
each Operational Year during which such situation shall occur shall be increased
by an amount equal to the additional Operating Expense which reasonably would
have been incurred during such period by Landlord if it had at its own expense,
furnished such service or services to such tenant. All such increases shall be
computed by Landlord in a reasonable and consistent manner and a copy of
Landlord's calculation shall be provided to Tenant.
(E) In any Operational Year in which Operational Year Operating Expenses
exceed Base Operating Expenses, Tenant shall pay to Landlord Tenant's
Proportionate Share of such excess.
(F) During or after the first Operational Year, Landlord shall forward
Tenant an itemized statement prepared by Landlord's accountants ("Statement") of
the Base Operating Expenses. Thereafter, during each succeeding Operational Year
during the Term, Landlord shall forward to Tenant a Statement of the Operational
Year Operating Expenses for the prior Operational Year and
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a computation of the amount payable by Tenant pursuant to this Article for such
Operational Year.
(G) With each installment of Base Rent payable during the Operational Year
1996, Tenant shall pay Landlord the monthly sum of $750.00 on account of the
amount due pursuant to this Article for such Operational Year.
With each installment of Base Rent payable during the Term during and
after the Operational Year 1997, Tenant shall pay to Landlord on account of the
amount payable pursuant to this Article for the then Operational Year:
(a) until Landlord forwards the applicable Statement for the preceding
Operational Year, the amount of the monthly payment due during December of such
Operational Year; and
(b) after Landlord forwards the applicable Statement for the preceding
Operational Year, one-twelfth (1/12th) of 105% of the amount payable pursuant to
this Article for such preceding Operational Year.
(H) Once Landlord forwards the applicable Statement for the preceding
Operational Year, Landlord and/or Tenant, as the case may be, promptly shall
make appropriate payment to the other (without interest) of any amount overpaid
by Tenant or owing to Landlord for such Operational Year based on the amount due
pursuant to such Statement and amounts theretofore paid by Tenant for such
preceding Operational Year.
(I) The parties' obligation to make any payment pursuant to this Article
shall survive the Expiration Date or any sooner termination of this lease and
shall be appropriately prorated for any Operational year which is only partially
within the Term.
(J) Each Statement given by Landlord pursuant to Section (E) shall be
binding upon Tenant unless, within 180 days after its receipt of such Statement,
Tenant notifies Landlord of its disagreement therewith, specifying the portion
thereof with which Tenant disagrees. Pending resolution of such dispute, Tenant
shall, without prejudice to its rights, pay all amounts determined by Landlord
to be due, subject to prompt refund by Landlord (without interest) upon any
contrary determination.
(K) Tenant shall have the right, during the regular business hours of
Landlord, on not less than five (5) days' notice, to examine the Landlord's
books and records with respect to any Operating Expenses designated in
accordance with the terms hereof, provided such examination is commenced within
180 days of such notice and completed within 240 days of rendition of Landlord's
statements.
41. Name of Building
At such time as this Lease is executed by Landlord and delivered to Tenant
and continuing so long as Tenant occupies at least 18,500 square feet in the
Building, the Building shall be known as "The London Fog Building" and Tenant
shall be permitted to install, at Tenant's expense, a non-illuminating
identification
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plaque at the Building entrance containing Tenant's name, subject to Landlord's
prior written approval as to type, nature of appearance and location, which
approval shall not be unreasonably withheld or delayed ("Tenant's Name Period").
At all other times during the Term other than Tenant's Name Period, Landlord
shall have the sole right to designate and change the name of the Building. In
the event Landlord grants any such consent, said installation and the
maintenance thereof throughout the Term of this Lease, shall be borne at
Tenant's sole cost and expense as otherwise set forth in the instant Lease
herein. Approval or disapproval by Landlord shall be given within ten (10) days
after written request by Tenant.
It shall be Tenant's obligation to comply, at Tenant's sole cost and
expense, with all the laws, orders, rules and regulations of governmental
authorities having jurisdiction thereof in connection with the installation and
maintenance of such plaque.
In the event Landlord or Landlord's representative shall deem it necessary
to remove such plaque in order to paint or to make any repairs, alterations or
improvements in or upon the Building or any part thereof, Landlord shall have
the right to do so, provided same be removed and promptly reinstalled when the
painting, repairs, alterations or improvements have been completed, at
Landlord's expense.
Tenant shall, at all times, keep the plaque in a neat and orderly condition
and in such a manner as Landlord may reasonably approve.
42. Electricity
(A) As an incident to this lease and as part of the Base Rent payable
hereunder, Landlord shall furnish to Tenant, through transmission facilities
installed by it in the Building, alternating electric current to be used by the
Tenant in, or in connection with, the lighting fixtures and electrical
receptacles installed in the demised premises. Landlord shall not be liable in
any way to Tenant for any failure or defect in supply or character of electric
current furnished to the demised premises, except where such failure or defect
is attributable to the act or omission of Landlord. Landlord shall furnish and
install all lighting tubes, ballasts, lamps and bulbs used in the demised
premises and Tenant shall pay, promptly upon demand, Landlord's reasonable
charges therefor. Tenant shall use said electric current for lighting and,
insofar as applicable laws and insurance regulations permit, for operation of
such equipment as is normally used in connection with the operation of a
business office.
(B) At all times during the term of this Lease, Landlord shall make
available eleven (11) watts (connected load) of electrical energy per rentable
square foot of the Demised Premises or the applicable Expansion Space, as the
case may be to the Demised Premises (including any Expansion Space) to
accommodate Tenant's Initial Installation. Tenant's use of electric current in
the demised premises shall not at any time exceed the capacity of any of the
electrical conductors and equipment in or otherwise serving the demised
premises. Tenant shall not make or perform, or
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permit the making or performing of, any alterations to wiring installations or
other electrical facilities in or serving the demised premises or any
substantial additions to the business machines, office equipment or other
appliances which it initially uses in the demised premises which utilize
electrical energy without the prior written consent of Landlord in each
instance, which consent shall not be unreasonably withheld or delayed. Should
Landlord grant any such consent, all additional risers or other equipment
required therefor, if any, shall be installed by Landlord and the reasonable
cost thereof shall be paid by Tenant promptly upon demand. As a condition to
granting any such consent, Landlord may require that Tenant agree to an increase
in the Electric Factor (and the Base Rent) payable hereunder by an amount which
will reflect the additional electricity to be used by Tenant for its additional
business machines, office equipment or other appliances. If Landlord and Tenant
cannot agree thereon, such amount shall be determined by a reputable independent
electrical engineer or consultant, to be selected and paid by Landlord . The
findings of the consultant or engineer in all such instances shall be conclusive
upon the parties. When the amount of such increase is so determined, the parties
shall execute and exchange an agreement supplementary hereto to reflect the
increase in the amount of the Electric Factor (and the Base Rent) payable
hereunder, effective from the date such additional electricity is used by
Tenant, but such increase shall be effective from such date even if such
supplementary agreement is not executed.
(C) Landlord or Tenant may, at any time, retain a reputable independent
electrical engineer or consultant, mutually selected and paid by Landlord and
Tenant to make a survey of the electrical wiring and power load to determine
what the value would be to Tenant if it were purchasing electricity directly
from the utility company at Landlord's rate schedule. If the Electric Factor
(and the Base Rent) then payable hereunder does not fairly reflect such value as
determined by the consultant or engineer, the Electric Factor (and the Base
Rent) shall be increased or decreased (but not below $2.50 per rentable square
foot) by a sufficient amount such that the same shall fairly reflect such value.
The findings of the consultant or engineer in all such instances shall be
conclusive upon the parties. When the amount of such value is so determined, the
parties shall execute and exchange an agreement supplementary hereto to reflect
any appropriate increase or decrease in the amount of the Electric Factor (and
the Base Rent) payable hereunder, effective from the date of such survey.
(D) If any tax is imposed upon Landlord in connection with the furnishing
of electric current to Tenant by any Federal, State or Local Government
subdivision or authority, Tenant shall pay Landlord an amount equal to such tax,
where permitted by law.
(E) If, subsequent to the Base Electric Date, the public utility rate
schedule or any portion of the charge for the supply of electric current to the
Building is increased, or decreased or such rate schedule is superseded by
another rate schedule, the Electric Factor (and the Base Rent) shall be
increased or decreased by the percentage of increase or decrease in Landlord's
cost for purchasing electricity for the Building provided, however, that in no
event shall the Electric Factor be reduced to less than the amount set forth in
Article 37, as such amount may be increased from time to time as a result of the
addition of space to the
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premises initially demised by this lease. If Landlord and Tenant cannot agree
thereon, the amount of such adjustment shall be determined by a reputable
independent electrical engineer or consultant, to be selected and paid by
Landlord . The findings of the consultant or engineer, in all such instances,
shall be conclusive upon the parties. Whenever the amount of any such adjustment
is so determined, the parties shall execute and exchange an agreement
supplementary hereto to reflect such adjustment in the amount of the Electric
Factor (and the Base Rent) payable hereunder, effective from the effective date
of such increase, decrease or change in such rate schedule or charge, but such
adjustment shall be effective from such date whether or not a supplementary
agreement is executed.
(F) Anything in this Article to the contrary notwithstanding, if Tenant
disputes any determination made by Landlord's electrical consultant or engineer
("Landlord's Electrical Consultant"), Tenant may challenge such determination
only (but not any prior determination of Landlord's Consultant), within one
hundred twenty (120) days after receipt thereof (time being of the essence), by
submitting a different computation of the percentage of increase or decrease, if
made pursuant to subsection (B) or (E), or by submitting a contrary survey, if
made pursuant to subsection (C), made by Tenant's reputable independent
electrical engineer or consultant ("Tenant's Electrical Consultant"), which
shall be paid by Tenant. If Landlord's Electrical Consultant and Tenant's
Electrical Consultant agree on a determination, such agreement shall be
conclusive upon the parties. If Landlord's Electrical Consultant and Tenant's
Electrical Consultant cannot agree, they shall select a third reputable
independent electrical engineer or consultant to be paid equally by both
parties, to make a binding determination with respect to such dispute. If
Landlord's Electrical Consultant and Tenant's Electrical Consultant cannot agree
upon a third electrical engineer or consultant, within thirty (30) days, upon
the application of either party the same shall be selected by the Presiding
Judge of the Appellate Division of the Supreme Court of the State of New York,
First Department. No delay in the resolution of any such dispute shall affect
the effective date of any such determination.
(G) In no event shall the Base Rent be less than the Net Rent.
(H) Landlord reserves the right to discontinue furnishing electric current
to Tenant in the demised premises at any time upon not less than thirty (30)
days' written notice to Tenant (or such longer period as Tenant reasonably
requires to arrange for direct electrical service from the public utility
company furnishing electric current to the Building), provided that Landlord
also discontinues furnishing electric current to substantially all other
similarly situated tenants in the Building. In addition, Tenant shall have the
right, at any time upon not less than thirty (30) days prior written notice to
Landlord, to arrange to obtain electric current directly from the public utility
company furnishing electric current to the Building. If either party exercises
such right of termination, this lease shall continue in full force and effect
and shall not be affected thereby, except that, from and after the effective
date of such termination, Landlord shall not be obligated to furnish electric
current to Tenant and the Base Rent payable hereunder shall be reduced to and
become the Net Rent. If
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such electric service is so discontinued, Tenant shall arrange to obtain
electric current directly from the public utility company furnishing electric
current to the Building. Such electric current may be furnished to Tenant by
means of the then existing Building system feeders, risers and wiring to the
extent that the same are available, suitable and safe for such purposes. All
meters and additional panel boards, feeders, risers, wiring and other conductors
and equipment which may be required to obtain electric current directly from
such public utility company shall be installed and maintained by Tenant, at its
expense.
(I) Tenant shall pay to Landlord a sum equal to one-twelfth (1/12th) of the
Electric Factor (the "Interim Electric Charge") on or after the later to occur
of July 1, 1994 or the date Tenant commences construction in the Demised
Premises ("Electrical Commencement Date") and on the first day of each calendar
month thereafter until the Rent Commencement Date, as additional rent
representing the charge for electricity consumed within the demised premises for
such period. If the Electrical Commencement Date occurs on a date other than the
first day of a calendar month, the Interim Electric Charge for such month shall
be an amount equal to such portion of the Interim Electric Charge as the number
of days from and including the Commencement Date bears to the total number of
days in such calendar month.
43. Restrictions on Use
(A) Anything in Article 2 to the contrary notwithstanding, Tenant shall not
use or permit all or any part of the demised premises to be used for the: (1)
storage for purpose of sale of any alcoholic beverage in the demised premises;
(2) storage for retail sale of any product or material in the demised premises;
(3) conduct of a manufacturing, printing or electronic data processing business,
except that Tenant may operate business office reproducing equipment, electronic
data processing equipment and other business machines for Tenant's own
requirements (but shall not permit the use of any such equipment by or for the
benefit of any party other than Tenant); (4) rendition of any health or related
services, conduct of a school or conduct of any business which results in the
presence of the general public in the demised premises; (5) conduct of the
business of an employment agency or executive search firm; (6) conduct of any
public auction, gathering, meeting or exhibition; (7) conduct of a stock
brokerage office or business; and (8) occupancy of a foreign, United States,
state, municipal or other governmental or quasi-governmental body, agency or
department or any authority or other entity which is affiliated therewith or
controlled thereby.
(B) Tenant shall not use or permit all or any part of the demised premises
to be used so as to impair the Building's character or dignity or impose any
unreasonable additional burden upon Landlord in its operation.
(C) Tenant shall not obtain or accept for use in the demised premises ice,
drinking water, food, beverage, towel, barbering, boot blacking, floor
polishing, lighting maintenance, cleaning or other similar services from any
party not theretofore approved by the Landlord (which party's charges shall not
be
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excessive). Such services shall be furnished only at such hours, in such places
within the demised premises and .pursuant to such regulations a Landlord
reasonably prescribes. Nothing contained in the foregoing shall prevent Tenant
or its employees from bringing into the Building for consumption therein food or
beverages purchased outside the Building.
44. Assignment, Etc.
Supplementing Article 11:
(A) Tenant shall neither: (i) publicly advertise to assign, sublet or
permit the occupancy of all or any part of the demised premises at a rental rate
less than the rental rate at which Landlord is then offering to lease comparable
space in the Building (provided that such rental may be indicated in flyers
circulated to the brokerage community); or (ii) assign this lease to or sublet
to or permit the occupancy of all or any part of the demised premises by any
other party which is then a tenant, subtenant, licensee or occupant of any space
in the Building or which has negotiated with Landlord for space in the Building
within the two (2) month period preceding the date of Landlord's receipt of
Tenant's Notice pursuant to Section (B).
(B) If Tenant wishes to assign this lease (a transfer of more than a fifty
(50%) percent beneficial interest in Tenant, whether such transfer occurs at one
time, or in a series of related transactions, and whether of stock, partnership
interest or otherwise, by any party in interest being deemed an assignment of
this lease, except where such transfers occur through trades on a recognized
stock exchange or on the "over-the-counter" market), sublet all or any part of
the demised premises or permit the demised premises to be occupied by any other
party, Tenant shall first notify Landlord ("Tenant's Notice"), specifying the
name of the proposed assignee, sublessee or occupant, the name of and character
of its business, the terms of the proposed assignment, sublease or occupancy
(including, without limitation, the commencement and expiration dates thereof)
and current information as to the financial responsibility and standing of the
proposed assignee, sublease or occupant and shall provide Landlord with such
other information as it reasonably requests. If only a portion of the demised
premises (not constituting an entire floor of the Building) is to be so sublet
or occupied, Tenant's Notice shall be accompanied by a reasonably accurate floor
plan, indicating such portion. The portion of the demised premises to which such
proposed assignment, sublease or occupancy is to be applicable is hereinafter
referred to as the "Space"
(C) In the event Tenant desires to assign its lease or sublet all of the
demised premises for the entire balance of the term of the Lease, Landlord may,
within twenty (20) days after its receipt of Tenant's Notice, by notice to
Tenant ("Landlord's Notice"), require Tenant to (i) sublease the demised
premises to Landlord or its nominee, on the terms set forth in Section (D), or
(ii) terminate this lease as of the proposed commencement date for such
assignment, sublease or occupancy. If Tenant desires to sublet all of the
demised premises for less than the entire balance of the term of the Lease or if
Tenant desires to sublet a portion of the demised premises or if Landlord fails
to exercise the
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options set forth in this Section (C), Landlord shall not unreasonably withhold
its consent to the proposed assignment, sublease or occupancy, but such consent
shall be deemed of no effect if such assignment, sublease or occupancy is not
consummated substantially upon the terms set forth in Tenant's Notice and within
sixty (60) days after such consent is given.
(D) If Landlord requires Tenant to execute a sublease ("Sublease") pursuant
to clause (C) (i), the Sublease shall be upon the terms set forth in Tenant's
Notice, except for such terms thereof as are inapplicable and except that: (i)
the subtenant under the Sublease shall have the unrestricted right to assign the
Sublease or any interest therein, to further sublet all or any part of the
demised premises and/or to make any alterations, decorations, additions or
improvements in and to the demised premises (all or any part of which may be
removed, at Landlord's option, at any time, provided Landlord repairs all damage
caused by such removal); (ii) the Sublease shall provide that the termination of
this lease by merger is not thereby intended; and (iii) at the expiration of the
Sublease, the demised premises shall be returned to Tenant as then existing (and
Tenant, in turn, shall have the right to return the demised premises to Landlord
as then existing). Landlord shall hold Tenant harmless from any claims, etc.
relating to the demised premises during the term of the sublease; also, Landlord
shall include Tenant as an additional insured under its insurance policies
covering the demised premises during the term of the sublease.
(E) Anything herein to the contrary notwithstanding, Tenant may not assign
this Lease or sublet all or any part of the demised premises prior to the
expiration of the first year of the Term.
(F) No assignment of this lease shall be effective unless and until Tenant
delivers to Landlord duplicate originals of the instrument of assignment
(wherein the assignee assumes the performance of Tenant's obligations under this
lease) and any accompanying documents.
(G) In the event of any such assignment, Landlord and the assignee may
modify this lease in any manner, without notice to Tenant or Tenant's prior
consent, without thereby terminating Tenant's liability for the performance of
its obligations under this lease, except that any such modification which, in
any way, increases any of such obligations shall not, to the extent of such
increase only, be binding upon Tenant.
(H) No sublease of all or any part of the demised premises (except a
Sublease) shall be effective unless and until Tenant delivers to Landlord
duplicate originals of the instrument of sublease (containing the provision
required by Section (I)) and any accompanying documents. Any such sublease shall
be subject and subordinate to this lease.
(I) Any such sublease shall contain substantially the following provisions:
(i) "In the event of a default under any underlying lease of all or
any portion of the premises demised hereby which results in the termination of
such lease, the
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subtenant hereunder shall, at the option of the lessor under any such lease
("Underlying Lessor"), attorn to and recognize the Underlying Lessor as landlord
hereunder and shall, promptly upon the Underlying Lessor's request, execute and
deliver all instruments necessary or appropriate to confirm such attornment and
recognition. Notwithstanding such attornment and recognition, the Underlying
Lessor shall not (i) be liable for any previous act or omission of the landlord
under this sublease, (ii) be subject to any offset, not expressly provided for
in this sublease, which shall have accrued to the subtenant hereunder against
said landlord, or (iii) be bound by any modification of this sublease or by any
prepayment of more than one month's rent, unless such modification or prepayment
shall have been previously approved in writing by the Underlying Lessor. The
subtenant hereunder hereby waives all rights under any present or future law to
elect, by reason of the termination of such underlying lease, to terminate this
sublease or surrender possession of the premises demised hereby."
(ii) "This sublease may not be assigned or the premises demised
hereunder further sublet, in whole or in part, without the prior written consent
of the Underlying Lessor."
(J) Landlord's consent to any assignment or sublease shall neither release
Tenant from its liability for the performance of Tenant's obligations hereunder
during the balance of the Term nor constitute its consent to any (i) further
assignment of this lease or of any permitted sublease or (ii)further sublease of
all or any portion of the premises demised hereunder or under any permitted
sublease, but such consent shall not be unreasonably delayed or withheld
provided that the proposed further assignment or further sublease satisfies all
of the requirements therefor set forth in this Lease. If a sublease to which
Landlord has consented is assigned or all or any portion of the premises demised
thereunder is sublet without the consent of Landlord in each instance obtained,
Tenant shall immediately terminate such sublease, or arrange for the termination
thereof, and proceed expeditiously to have the occupant thereunder dispossessed.
(K) Tenant shall pay to Landlord, promptly upon demand therefor, all
reasonable out-of-pocket costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements) incurred by Landlord in connection
with any assignment of this lease or sublease of all or any part of the demised
premises.
(L) If Landlord shall give its consent to any assignment of this lease or
to any sublease or if Tenant shall otherwise enter into any assignment or
sublease permitted hereunder, Tenant shall, in consideration therefor, pay to
Landlord, as and when payable to Tenant:
(i) in the case of an assignment, fifty (50%) percent of all sums and
other considerations paid to Tenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale of Tenant's
leasehold improvements, after deduction of all reasonable and customary expenses
incurred by Tenant in connection with the assignment, including, without
limitation, advertising expenses, brokerage commissions and legal fees and
disbursements); and
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(ii) in the case of a sublease, fifty (50%) percent of the amount, if
any, by which (1) any rents, additional charges or other consideration payable
under the sublease to Tenant by the subtenant (including, but not limited to,
sums paid for the sale or rental of Tenant's leasehold improvements, after
deduction of (a) all reasonable and customary expenses incurred by Tenant in
connection with the sublease, including, without limitation, advertising
expenses, brokerage commissions and legal fees and disbursements and (b) the
cost of any rent concessions and construction allowances granted to the
subtenant) exceeds (2) the Base Rent and additional rent accruing during the
term of the sublease in respect of the Space (at the rate per square foot
payable by Tenant hereunder) pursuant to the terms of this lease.
(M) Assignment to an Affiliate with Assumption
Notwithstanding the provisions contained in Articles 11 and this Article 44
herein, and provided Tenant is not in default under the terms and provisions of
the Lease, Tenant shall have the right to assign this Lease or sublet the
Demised Premises to any corporation into or with which Tenant may be merged or
consolidated or to any corporation which shall be an affiliate, subsidiary,
parent or successor of Tenant or of a corporation into or with which Tenant may
be merged or consolidated or to a partnership, the majority interest of which
shall be owned by stockholders of Tenant or of any such corporation. For the
purpose of this Article "subsidiary" or "affiliate" or a "successor" of Tenant
shall mean the following:
(a) An "affiliate" shall mean any corporation which, directly or
indirectly, controls or is controlled by or is under common control with Tenant.
For this purpose, "control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such corporation, whether through the ownership or voting securities or by
contract or otherwise;
(b) A "subsidiary" shall mean any corporation not less than 50% of whose
outstanding stock shall, at the time, be owned directly or indirectly by Tenant;
(c) A "successor" of Tenant shall mean:
(i) a corporation in which or with which Tenant, its corporate
successors or assigns, is merged or consolidated, in accordance with applicable
statutory provisions for merger or consolidation of corporations, provided that
by operation of law or by effective provisions contained in the instruments of
merger or consolidation, the liabilities of the corporations participating in
such merger or consolidation are assumed by the corporation surviving such
merger or created by such consolidation, or
(ii) a corporation acquiring this Lease and the term hereby demised
and a substantial portion of the property and assets of Tenant, its corporate
successors or assigns,or
(iii) any corporate successor to a successor corporation becoming such
by either of the methods described in (i) or (ii), provided that on the
completion of such merger, consolidation, acquisition or assumption, the
successor shall have a net
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worth no less than Tenant's net worth immediately prior to such merger,
consolidation, acquisition or assumption.
Acquisition by Tenant, its corporate successors or assigns, of a substantial
portion of the assets, together with the assumption of all or substantially all
the obligations and liabilities of any corporation, shall be deemed a merger of
such corporation into Tenant for purpose of this Article.
45. Base Rent and Possession
(A) The basic annual rental (Base Rent) due and payable under this Lease as
provided on page 1 of the sleeve herein shall be as follows:
(a) for the period commencing October 1, 1994 through and including
September 30, 1997 at an annual rental rate of Six Hundred Eighty-four
Thousand and 00/100 ($684,000.00) Dollars;
(b) for the period commencing October 1, 1997 through and including
September 30, 2001 at an annual rental rate of Seven Hundred Fifty-six
Thousand and 00/100 ($756,000.00) Dollars; and
(c) for the period commencing October 1, 2001 through and including
September 30, 2004 at an annual rental rate of Eight Hundred Twenty-eight
Thousand and 00/100 ($828,000.00) Dollars.
(B) For the period commencing October 1, 2004 through and including
September 30, 2009, the Base Rent shall be at the annual rental rate equivalent
to ninety (90%) percent of the annual fair market rentable value, which fair
market rental value shall be agreed upon by the parties by on or before April 1,
2004 or failure of the parties to so agree, then such fair market value shall be
determined by arbitration as hereinafter set forth.
(C) For the purposes of this Article, the annual fair market rental value
of the Demised Premises shall be deemed to be the rental which a third party who
wished to lease the Demised Premises for its own use and occupancy (highest and
best use as Executive Offices and Showrooms) would pay the Owner of the Building
of which the Demised Premises form a part, and which the Owner would accept,
taking into consideration the following factors among others: (a) that Tenant
will not receive any "free-rent", construction allowance or other rent
concessions; (b) that Tenant will be required to pay, during the term of the
Lease, its proportionate share of Real Estate Taxes and other escalations on the
basis of the base years set forth in Paragraph (E) below and as otherwise set
forth in this Lease and to perform the other obligations of Tenant under this
Lease; (c) that a reduced brokerage commission will be payable in connection
with the Lease transaction; (d) that Tenant shall not incur any moving or
equipment relocation expenses by reason of its leasing the Demised Premises
during the extended period involved herein; (e) that Landlord will be able to
rent the demised premises without incurring the usual expenses of locating a new
tenant and without any "down time" (i.e., time between the expiration of the old
lease
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and the start of the new lease); and (f) in no event, however, shall the annual
Base Rent and additional rental due and payable under this Lease during the
period October 1, 2004 through September 30, 2009, be less than the annual Base
Rent and additional rent due and payable hereunder for the annual period ending
on September 30, 2004, regardless of whether the annual fair market rental is
determined by agreement between the parties or by arbitration. .
(D) In the event that the parties are unable to agree on the fair market
rental value by no later than April 1, 2004, either Landlord or Tenant may
initiate the arbitration procedure specified in Article 61 below, by giving
written notice to that effect and designating its arbitrator. Landlord and
Tenant agree to cooperate so that any final determination by arbitration can be
made expeditiously. When the fair market rental value of the Demised Premises is
to be determined by agreement or arbitration in the circumstances described in
this Article, such fair market rental value of the Demised Premises shall be as
of October 1, 2004. In the event that a final determination of the fair market
rental value has not been made or agreed upon on or before October 1, 2004,
Tenant shall continue to pay its Base Rent and additional rent in the amount
then in effect on September 30, 2004. Thereafter, once the fair market rental
value is determined, Tenant shall pay to Landlord, within fifteen (15) days of
its receipt of a statement therefor from Landlord, all amounts for the period
from October 1, 2004 to the date of determination which would have been paid by
Tenant, as Base Rent and additional rent, in excess of the Base Rent and
additional rent actually paid by Tenant, if such fair market rental value, as
finally determined, had been agreed upon or determined as of October 1, 2004.
(E) Once the fair market rental value is determined, either by agreement
between the parties or by arbitration as set forth above, Tenant shall
thereafter continue to pay the escalations as set forth in Articles 39 and 40
and elsewhere in the instant Lease herein, except that the Taxes for the Base
Year referred to in Article 39(A) (3) shall mean the Real Estate Taxes, as
finally determined, for the fiscal years beginning July 1, 2004 and ending June
30, 2005 and July 1, 2005 through June 30, 2006, and the Base Operating Expenses
referred to in Article 37(C) shall mean the Operating Expenses incurred for the
calendar year 2005.
(F) Notwithstanding the provisions of subparagraph (A) (a) above, Tenant
shall be permitted to occupy the Demised Premises at such time as this Lease is
executed and exchanged between Landlord and Tenant. At such time as Tenant
occupies the Demised Premises for any reason whatsoever, Tenant shall otherwise
comply with all the other terms and provisions of this Lease, except as
otherwise set forth in this Articles 45 and 64 and elsewhere in this Lease,
provided however, that Tenant's obligation to commence paying monthly Base Rent
shall not commence until the Rent Commencement Date.
46. Broker
Landlord and Tenant each represent that it has dealt with no broker in
connection with the negotiations for the execution of
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this Lease, except JULIEN J. STUDLEY, INC. and JACK RESNICK & SONS, INC.
Landlord and Tenant each represent that it has dealt only with the
aforementioned brokers in connection with this Lease and Landlord shall pay the
Brokers' commission therefor pursuant to separate agreement. Each party shall
indemnify the other party against any liability and expense (including
reasonable attorney's fees) for any other claims for brokerage commission or
finder's fee based on alleged actions of such party or its agents or
representatives. Landlord's and Tenant's liability hereunder shall survive any
expiration or termination of this Lease.
47. Building Directory
(A) Landlord shall, upon Tenant's request, list on the Building's directory
("Directory") the names of the Tenant, any assignee or subtenant or any other
party occupying any part of the demised premises pursuant hereto and their
officers or employees, provided the number of Directory lines so provided by
Landlord does not exceed Tenant's Proportionate Share of the Directory's
capacity.
(B) The listing of any party's name other than Tenant's shall neither grant
such party any right or interest in this lease and/or the demised premises nor
constitute Landlord's consent to any assignment or sublease to or occupancy by
such party. Such listing may be terminated by Landlord at any time, without
prior notice. The initial listing(s) in the Directory shall be provided by
Landlord without charge to Tenant. Thereafter, Tenant shall pay Landlord's
standard fee (which shall be reasonable) for any work performed in connection
with any additions, deletions or changes to the Directory.
48. Exculpatory Clause
(A) Anything herein to the contrary notwithstanding, the liability of
Landlord and the partners of Landlord for negligence, failure to perform lease
obligations or otherwise under or in connection with this lease shall be limited
to their respective interests in the Land and Building. Tenant shall neither
seek to enforce nor enforce any judgment or other remedy against any other asset
of Landlord, any partner of Landlord or any party that holds any interest in
Landlord.
(B) In any claim made by Tenant against Landlord alleging that Landlord has
acted unreasonably where Landlord had an obligation to act reasonably, Tenant's
sole and exclusive recourse against landlord shall be an action seeking specific
performance of Landlord's obligations under this lease.
49. Submission to Jurisdiction, Etc.
(A) This lease shall be deemed to have been made in New York County, New
York, and shall be construed in accordance with the laws of the State of New
York. All actions or proceedings relating, directly or indirectly, to this lease
shall be litigated
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only in courts located within the County of New York. Landlord, Tenant, any
guarantor of the performance of Tenant's obligations hereunder ("Guarantor") and
their successors and assigns hereby subject themselves to the jurisdiction of
any state or federal court located within such county, waive the personal
service of any process upon them in any action or proceeding therein and consent
that such process be served by certified or registered mail, return receipt
requested, directed to the Landlord or Tenant and/or any successor at its
address hereinabove set forth, to Guarantor and any successor at the address set
forth in the instrument of guaranty and to any assignee at the address set forth
in the instrument of assignment. Such service shall be deemed made two days
after such process is so mailed.
(B) Whenever any default by Tenant beyond any applicable notice and cure
period causes Landlord to incur attorneys' fees and/or any other costs or
expenses, Tenant agrees that it shall pay and/or reimburse Landlord for such
reasonable fees, costs or expenses within ten (10) days after being billed
therefor.
(C) If any monies owing by Tenant under this lease are paid more than
fifteen (15) days after the date such monies are payable pursuant to the
provisions of this lease, Tenant shall pay Landlord interest thereon, at nine
(9%) percent per annum, for the period from the date such monies were payable to
the date such monies are paid.
(D) The submission of this lease to Tenant shall not constitute an offer by
Landlord to execute and exchange a lease with Tenant and is made subject to
Landlord's acceptance, execution and delivery thereof.
50. Modifications Requested by Mortgagee
(A) If any prospective mortgagee of the Land, Building or any leasehold
interest therein requires, as a condition precedent to issuing its loan, the
modification of this lease in such manner as does not lessen Tenant's rights or
increase its obligations hereunder except to a de minimis extent, Tenant shall
not unreasonably delay or withhold its consent to such modification and shall
execute and deliver such confirming documents therefor as such mortgagee
requires.
(B) In the event of the enforcement by Mortgagee of any of its remedies
provided for by law or under the Mortgage, Tenant agrees that, on the request of
Mortgagee or any person succeeding to the interest of Landlord as a result of
such enforcement, to automatically become the tenant of any such successor in
interest without any change in the terms or other provisions of this lease;
provided, however, that any such successor in interest shall not be (i) bound by
any payment of rent or additional rent for more than one month in advance; (ii)
bound by any amendment or modification of this lease entered into subsequent to
such party becoming a Mortgagee or successor in interest, made without the
consent of Mortgagee or such successor in interest; (iii) liable for any act or
omission of any prior landlord; or (iv) subject to any offset or defenses which
Tenant may have against any prior landlord. Upon the request by any such
successor in interest, Tenant agrees to
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execute and deliver an instrument or instruments confirming such attornment.
51. "As Is"
Supplementing Article 21 the demised premises shall be leased to Tenant in
their "as is" condition on the date hereof, reasonable wear and tear excepted,
and Landlord shall not be required to perform any work to prepare the demised
premises for Tenant's occupancy other than as set forth in Article 65 below. The
taking of possession of the demised premises by Tenant shall be conclusive
evidence as against Tenant that, at the time such possession was so taken, the
demised premises were in good and satisfactory condition except (a) as notified
by Tenant to Landlord within thirty (30) days of its taking of possession of the
demised premises or (b) latent structural defects or defects which cannot then
be determined due to the season of the year.
52. Insurance
During the Term Tenant shall pay for and keep in force general liability
policies in standard form protecting against any and all liability occasioned by
accident or occurrence, subject to customary exclusions, such policies to be
written by recognized and well-rated insurance companies authorized to transact
business in the State of New York. The minimum limits of liability shall be a
combined single limit with respect to each occurrence in an amount of not less
than $5,000,000 for injury (or death) and damage to property. If at any time
during the Term it appears that public liability or property damage limits in
the City of New York for premises similarly situated, due regard being given to
the use and occupancy thereof, are higher than the foregoing limits, then, at
the written request of Landlord, Tenant shall increase the foregoing limits
accordingly. Landlord shall be named as an additional insured in the aforesaid
insurance policies and the policies shall provide that Landlord shall be
afforded thirty days prior notice of cancellation of said insurance. Tenant
shall deliver certificates of insurance evidencing such policies. All premiums
and charges for the aforesaid insurance shall be paid by Tenant and if Tenant
shall fail to make such payment when due, Landlord may make it and the amount
thereof shall be repaid to Landlord by Tenant on demand and the amount thereof
may, at the option of Landlord, be added to and become a part of the additional
rent payable hereunder. Tenant shall not violate or permit to be violated any
condition of any of said policies and Tenant shall perform and satisfy the
requirements of the companies writing such policies.
53. Bankruptcy
Without limiting any of the provisions of Articles 16, 17 or 18 hereof, if
pursuant to the Bankruptcy Code, as the same may be amended, Tenant is permitted
to assign this lease in disregard of the obligations contained in Articles 11
and 44 hereof, Tenant agrees that adequate assurance of future performance by
the assignee permitted under such Code shall mean the deposit of cash security
with Landlord in an amount equal to the sum of one year's Base Rent then
reserved hereunder, plus an amount equal to all
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additional rent payable under this lease for the calendar year preceding the
year in which such assignment is intended to become effective, which deposit
shall be held by Landlord, without interest, for the balance of the Term as
security for the full and faithful performance of all of the obligations under
this lease on the part of Tenant yet to be performed. If Tenant receives or is
to receive any valuable consideration for such an assignment of this lease, such
consideration, after deducting therefrom (A) the brokerage commissions, if any,
and other expenses reasonably incurred by Tenant for such assignment and (B) any
portion of such consideration reasonably designated by the assignee as paid for
the purchase of Tenant's property in the demised premises, shall be and become
the sole and exclusive property of Landlord and shall be paid over to Landlord
directly by such assignee. In addition, adequate assurance shall mean that any
such assignee of this lease shall have a net worth, exclusive of good will,
equal to at least fifteen (15) times the aggregate of the Base Rent reserved
hereunder, plus all additional rent for the preceding calendar year as
aforesaid.
54. Local Law 5
Supplementing Article 6,
(A) All work performed or installations made by Tenant (or by Landlord at
Tenant's request and expense) in and to the demised premises shall be done in a
fashion such that the demised premises and the Building shall be in compliance
with the requirements of Local Law 5 of 1973 of The City of New York, as then in
effect ("Local Law 5"). The foregoing shall include, without limitation, (i)
compliance with the compartmentalization requirements of Local Law 5, (ii)
relocation of existing fire detection devices, alarm signals and/or
communication devices necessitated by the alteration of the demised premises,
and (iii) installation of such additional fire control or detection devices as
may be required by applicable governmental or quasi-governmental rules,
regulations or requirements (including, without limitation, any requirements of
the New York Board of Fire Underwriters) as a result of Tenant's manner of use
of the demised premises. In addition, Tenant shall cause the demised premises to
be connected to the Building Class "E" system and arrange to have the demised
premises and Tenant added to the "Class E" computer.
(B) Landlord shall not be responsible for any damage to Tenant's fire
control or detection devices (except for damage caused by Landlord) nor shall
Landlord have any responsibility for the maintenance or replacement thereof.
Tenant shall indemnify Landlord from and against all loss, damage, cost,
liability or expense (including, without limitation, reasonable attorneys' fees
and disbursements, but not including special or consequential damages) suffered
or incurred by Landlord by reason of the installation and/or operation of any
such devices.
(C) All work and installations required to be undertaken by Tenant pursuant
to this Article shall be performed at Tenant's sole cost and expense and in
accordance with plans and specifications and by contractors previously approved
by Landlord, which approval shall not be unreasonably withheld or delayed.
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(D) The fact that Landlord shall have heretofore consented to any
installations or alterations made by Tenant in the demised premises shall not
relieve Tenant of its obligations pursuant to this Article with respect to such
installations or alterations.
55. Tenant's Alterations
(A) Tenant shall not make or perform, or permit the making or performance
of, any alterations, installations, improvements, additions or other physical
changes (except decorative changes) in or about the demised premises
(collectively, "Alterations") without Landlord's prior consent. Landlord agrees
not to unreasonably withhold its consent to any Alterations which are
nonstructural or for the staircases between Tenant's floors, or which do not
affect the Building's systems and facilities proposed to be made by Tenant to
adapt the demised premises for those business purposes permitted by Article 2
hereof, provided that such Alterations, do not affect any part of the Building
other than the demised premises or for the staircases between Tenant's floors,
do not adversely affect any service required to be furnished by Landlord to
Tenant or to any other tenant or occupant of the Building and do not reduce the
value or utility of the Building. Except as otherwise provided herein, all
Alterations(including the staircases and bathrooms located on Tenant's floors)
shall be done at Tenant's expense and at such times and in such manner as
Landlord may from time to time reasonably designate pursuant to the conditions
for Alterations prescribed by Landlord for the Building and shall comply with
all laws, ordinances, orders, rules and regulations of each and every department
and bureau of the City and State of New York and of the United States of
America, and any other lawful authority asserting jurisdiction in the premises,
including, but not limited to, compliance with the Americans With Disabilities.
Act of 1990, as same may be amended from time to time ("ADA") and shall
reimburse Landlord for any reasonable expenses incurred on account of the
failure by Tenant to comply with any such requirements and promptly after
completion of any work Tenant shall obtain and furnish to Landlord all required
sign-offs, and any reasonable expenses so incurred by Landlord as aforesaid
shall be deemed additional rent under this Lease and due and payable by Tenant
to Landlord on the first day of the month immediately following the payment and
request of the same by Landlord.
Except as set forth above, it shall be Landlord's responsibility to
comply with ADA as same relates to access to the Building and the common areas
of the Building.
Prior to making any Alterations, Tenant (i) shall submit to Landlord
detailed plans and specifications (including layout, architectural, mechanical
and structural drawings) for each proposed Alteration and shall not commence any
such Alteration without first obtaining Landlord's approval of such plans and
specifications, (ii) shall, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi- governmental bodies, and
(iii) shall furnish to Landlord duplicate original policies of worker's
compensation insurance (covering all persons to be employed by Tenant, and
Tenant's contractors and subcontractors in connection with such Alteration) and
comprehensive public liability (including property damage coverage)
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insurance in such form, with such companies, for such periods and in such
amounts as Landlord may reasonably require, naming Landlord and its agents as
additional insureds. Upon completion of such Alteration, Tenant, at Tenant's
expense, shall obtain certificates of final approval of such Alteration required
by any governmental or quasi-governmental bodies and shall furnish Landlord with
copies thereof and shall, within thirty (30) days of such completion, deliver a
set of final "as built" drawings to Landlord reflecting the Alteration. All
Alterations shall be made and performed in accordance with the Rules and
Regulations; all materials and equipment to be incorporated in the demised
premises as a result of all Alterations shall be new and first quality; no such
materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage, title retention or security agreement. Tenant shall not, at any time
prior to or during the Term, directly or indirectly employ, or permit the
employment of, any contractor, mechanic or laborer in the demised premises,
whether in connection with any Alteration or otherwise, if, in Landlord's sole
discretion, such employment will interfere or cause any conflict with other
contractors, mechanics or laborers engaged in the construction, maintenance or
operation of the Building by Landlord, Tenant or others. In the event of any
such interference or conflict, Tenant, upon demand of Landlord, shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately. Notwithstanding anything contained herein to the
contrary, Landlord's approval to Tenant's plans and specifications shall be
deemed granted if Landlord fails to respond within seven (7) business days after
submission of complete plans and specifications, provided that along with such
complete submission for approval, Tenant notifies Landlord, in writing, using
bold lettering that Landlord's failure to respond within seven (7) business days
will be deemed approval of the submitted plans and specifications.
(B) No approval of any plans or specifications by Landlord or consent by
Landlord allowing Tenant to make any Alterations or any inspection of
Alterations made by or for Landlord shall in any way be deemed to be an
agreement by Landlord that the contemplated Alterations comply with any legal
requirements or insurance requirements or the certificate of occupancy for the
Building nor shall it be deemed to be a waiver by Landlord of the compliance by
Tenant of any provision of this lease.
(C) Tenant shall promptly reimburse Landlord for all reasonable
out-of-pocket fees, costs and expenses including, but not limited to, those of
attorneys, architects and engineers, incurred by Landlord in connection with
inspecting the Alterations, including Tenant's inter-floor staircases, to
determine whether the same are being or have been performed in accordance with
the approved plans and specifications therefor and with all legal requirements
and insurance requirements, provided, however, such amount shall not exceed
$1,000 if such Alterations consist of non-structural improvements and the
staircases.
56. Estoppel Certificate
Either party shall, at any time, and from time to time, upon at least
fifteen (15) days' prior notice from the other party, shall execute, acknowledge
and deliver to the requesting party,
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and/or to any other person, firm or corporation specified by Landlord or Tenant
("Recipient"), a statement prepared by the Recipient or requesting party
certifying that this lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect
modified and stating the modifications), stating the dates to which the Base
Rent and additional rent have been paid, stating whether or not there exists any
defaults by Landlord or Tenant under this lease and, if so, specifying each such
default and any other matters reasonably requested by Landlord, Tenant or the
Recipient.
57. Holdover
In the event Tenant shall hold over for more than sixty (60) days after the
expiration of the Term, the parties hereby agree that Tenant's occupancy of the
demised premises after the expiration of the Term shall be upon all of the terms
set forth in this lease, except Tenant shall pay as use and occupancy charge for
the holdover period an amount equal to the higher of (A) an amount equal to one
and one-half (1-1/2) times the sum of (i) the pro rata Base Rent payable by
Tenant during the last year of the Term and (ii) all monthly installments of
additional rent payable by Tenant pursuant to the terms of this lease that would
have been billable monthly by Landlord had the Term not expired; or (B) an
amount equal to the then market rental value for the demised premises as shall
be established by Landlord giving notice to Tenant of Landlord's good faith
estimate of such market rental value (such estimate to be subject to challenge
by Tenant and in such event, if the parties are unable to agree thereon, the
then market rental value for the demised premises shall be established by
arbitration).
58. Conditional Limitation
In the event that twice in any twelve (12) month period (A) a default of
the kind set forth in Section 17(1) shall have occurred or (B) Tenant shall have
defaulted in the payment of Base Rent or additional rent, or any part of either,
and Landlord shall have commenced a summary proceeding to dispossess Tenant in
each such instance, then, notwithstanding that such defaults may have been cured
at any time after the commencement of such summary proceeding, any further
default by Tenant within such twelve (12) month period shall be deemed to be a
violation of a substantial obligation of this lease by Tenant and Landlord may
serve a written three (3) day notice of cancellation of this lease upon Tenant
and, upon the expiration of said three (3) days, this lease and the Term shall
end and expire as fully and completely as if the expiration of such three (3)
day period were the day herein definitely fixed for the end and expiration of
this lease and the Term and Tenant shall then quit and surrender the demised
premises to Landlord, but Tenant shall remain liable as elsewhere provided in
this Lease.
59. Limitation on Rent
If on the Commencement Date, or at any time during the Term, the Base Rent
or additional rent reserved in this lease is not fully collectible by reason of
any Federal, State, County or
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and Penthouse Floors
8 West 40th Street
City law, proclamation, order or regulation, or direction of as public officer
or body pursuant to law (collectively, "Law"), Tenant agrees to take such steps
as Landlord may request to permit Landlord to collect the maximum rents which
may be legally permissible from time to time during the continuance of such
legal rent restriction (but not in excess of the amounts reserved therefor under
this lease). Upon the termination of such legal rent restriction, Tenant shall
pay to landlord, to the extent permitted by Law, an amount equal to the
additional Base Rent and additional rent which would have been payable by Tenant
to Landlord under this Lease during the period such legal rent restriction was
in effect had such legal rent restriction not been in effect.
60. Acceptance of Keys
If Landlord or Landlord's managing or rental agent accepts from Tenant one
or more keys to the demised premises in order to assist Tenant in showing the
demised premises for subletting or other disposition or for the performance of
work therein for Tenant or for any other purpose, the acceptance of such key or
keys shall not constitute an acceptance of a surrender of the demised premises
nor a waiver of any of Landlord's rights or Tenant obligations under this lease
including, without limitation, the provisions relating to assignment and
subletting and the condition of the demised premises.
61. Arbitration
(A) In each case in which arbitration is provided for in the Lease, such
arbitration shall be conducted as provided in this Article 61. The party
desiring such arbitration shall give written notice to that effect to the other
party, specifying in said notice the name and address of the person designated
to act as arbitrator on its behalf, which arbitrator shall have the
qualifications described in the last sentence of this Article 61. Within ten
(10) days after the service of such notice, the other party shall give written
notice to the first party specifying the name and address of the person
designated to act as arbitrator on its behalf, which arbitrator shall have the
qualifications described in the last sentence of this Article 61. If the second
party fails to so notify the first party of the appointment of its arbitrator,
as aforesaid, within or by the time above specified, then appointment of the
second arbitrator shall be made in the same manner as hereinafter provided for
appointment of a third arbitrator in a case where neither the two arbitrators
nor the parties are able to agree upon appointment of a third arbitrator. The
arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed and if, within fifteen (15) days after the second
arbitrator is appointed, such two arbitrators shall not agree upon the question
in dispute, each shall make a written determination of the issue being
arbitrated and they shall themselves appoint a third arbitrator who shall be a
competent and impartial person, which arbitrator shall have the qualifications
described in the last sentence of this Article 61; and in the event of their
being unable to agree upon such appointment within ten (10) days after the time
aforesaid, the third arbitrator shall be selected by the parties themselves if
they can agree thereon within a further period of fifteen (15) days. If the
parties do not so agree, then
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either party, on behalf of both, may apply to the American Arbitration
Association in New York County or its successor for appointment of such third
arbitrator, and the other party shall not raise any question as to the
Association's full power and jurisdiction to entertain the application and make
the appointment. Such third arbitrator shall select the determination of the one
of the initial arbitrators which he considers most correct. The decision of the
third arbitrator so chosen shall be given within a period of thirty (30) days
after the appointment of such third arbitrator. A decision in which any two
arbitrators so appointed and acting hereunder concur or the determination of the
third arbitrator shall in all cases be binding and conclusive upon the parties.
Each party shall pay the fees and expenses of the one of the two original
arbitrators appointed by such party, or in whose stead as above provided, such
arbitrator was appointed, and the fees and expenses of the third arbitrator, if
any, shall be borne equally by both parties. In the case of any arbitration
provided for in this Lease each arbitrator selected shall be engaged in leasing,
owning, operating and/or selling commercial office space in the Borough of
Manhattan, either as a Landlord, managing agent, broker or a consultant, and
shall have been continuously so engaged for at least five (5) years prior to his
or her selection.
(B) Whenever Tenant alleges that Landlord has acted unreasonably with
respect to a matter where arbitration is provided for, Tenant may send a notice
to Landlord ("Hearing Notice"), specifying the matter with respect to which it
alleges that Landlord has acted unreasonably ("Dispute") and electing to have
the dispute resolved by an informal hearing ("Hearing") upon and subject to the
terms and conditions hereinafter set forth:
(a) The Hearing shall be held at the offices of an individual mutually
selected by Landlord and Tenant within five (5) days after receipt of the
Hearing Notice or, if the parties cannot so agree on such individual, then such
selection shall be made by the then President of the Bar Association of the City
of New York, or its successor, or if no such successor, or if such selection is
not made within ten (10) days of a request therefor, then by the American
Arbitration Association ("Hearing officer");
(b) The Hearing shall be held on the date specified in the Hearing Notice
(which shall be no less than seven (7) nor more than ten (10) days after the
selection of the Hearing officer ) and pursuant to substantive and procedural
rules to be established by the Hearing officer;
(c) The determination by the Hearing officer shall be conclusive upon the
parties and shall be made within seven (7) days after the Hearing is completed
whether or not a judgment of such determination shall be entered in any court;
and
(d) If Landlord is determined to have acted properly, Tenant shall pay the
fees of the Hearing Officer. If Landlord is determined to have acted improperly,
Landlord shall pay such fees.
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and Penthouse Floors
8 West 40th Street
62. Definitions of "Landlord" and "Owner"
The terms "Owner" and "Landlord", whenever used in this lease (including,
without limitation, in Article 31), shall have the same meaning.
63. Landlord's Contribution
(A) Tenant shall submit to Landlord complete and detailed architectural,
mechanical and engineering plans and specifications showing the alterations and
improvements required by Tenant to the demised premises to prepare the same for
Tenant's occupancy ("Tenant's Initial Installation") consistent with the
provisions of Article 55. Tenant shall provide Landlord with a copy of the final
contract with the general contractor (or, if Tenant is performing Tenant's
Initial Installation without a general contractor, then a copy of all contracts
relating to Tenant's Initial Installation), which contract(s) shall be certified
by Tenant and the general contractor (or contractors) as being true and
complete.
(B) Subject to the terms and conditions set forth below, Landlord shall
reimburse Tenant up to a maximum amount of One Million Two Hundred Ten Thousand
and 00/100 ($1,210,000.00) Dollars ("Landlord's Contribution") for costs
incurred by Tenant in connection with Tenant's Initial Installation (inclusive
of architectural, engineering, legal and other consulting fees, moving expenses,
permit fees and interest). Landlord shall disburse from time to time, but not
more often than once in any thirty (30) day period, within ten (10) business
days of receipt of each Tenant's request, that portion of Landlord's
Contribution equal to ninety percent (90%) of the amount set forth in Tenant's
requisition, provided, however, that no advance shall be made if and so long as
Tenant shall be in default under this lease beyond any applicable notice and
cure period. No advance shall be made until receipt of a request therefor from
Tenant and the submission by Tenant of the following:
(i) A certificate signed by Tenant and Tenant's architect dated not
more than fifteen (15) days prior to such request setting forth (a) the sum then
justly due to contractors, subcontractors, materialmen, engineers, architects
and other persons who have rendered services or furnished materials in
connection with Tenant's Initial Installation, (b) a brief description of such
services and materials and the amounts paid or to be paid from such requisition
to each of such persons in respect thereof, (c) that the work described in the
certificate has been completed substantially in accordance with the Final Plans,
(d) that there has not been filed with respect to the demised premises or the
Building or any part thereof or any improvements thereon, any vendor's,
mechanic's, laborer's, materialmen's or other like liens arising out of Tenant's
Initial Installation which has not been discharged of record or which Tenant is
proceeding with diligence to have discharged of record, and (e) that Tenant has
complied with all of the conditions set forth in Articles 3, 54 and 55 of this
lease, including the requirement that Tenant comply with all applicable
governmental and quasi-governmental laws, rules and regulations; and
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and Penthouse Floors
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(ii) Partial lien waivers, paid receipts or such other proof of
payment as Landlord shall reasonably require for all work done and material
supplied prior to the current requisition. Upon the substantial completion of
Tenant's Initial Installation, Landlord shall, upon receipt of all of the
foregoing, disburse to Tenant the amount, if any, equal to the amount by which
ninety percent (90%) of the portion of Landlord's Contribution for which Tenant
has submitted payment requests exceeds the amount of Landlord's Contribution
theretofore disbursed. Landlord shall disburse the remaining ten percent (10%)
balance of the portion of Landlord's Contribution for which Tenant has submitted
payment requests upon receipt of all of the foregoing plus (w) final "as built"
plans of the demised premises showing Tenant's Initial Installation, (x)
delivery of Building Department filing documents, permits, approvals and
Building and Fire Department signoffs, (y) delivery of lien waivers by the
general contractor and all major subcontractors involved with the installation,
and (z) the completion of an inspection by Landlord confirming that the work set
forth in the Final Plans has been completed, which Landlord agrees to conduct
within three (3) business days after Tenant's request. Notwithstanding the
foregoing, Tenant's right to collect Landlord's Contribution shall exist only
with respect to work performed by Tenant during the first twelve (12) months of
the Term subject to delays beyond Tenant's control; to the extent not utilized
within such period, Landlord's Contribution shall be deemed waived by Tenant and
Landlord shall be under no further obligation to make any further payments to
Tenant for Landlord's Contribution or otherwise with respect to Tenant's Initial
Installation.
(C) Notwithstanding anything to the contrary contained in this Article 63,
Tenant may defer the 19th Floor portion of Tenant's Initial Installation until
Landlord shall have delivered the possession of the entire 19th Floor to Tenant,
and Tenant shall be entitled to receive all disbursements of Landlord's
Contribution, including the final ten (10%) percent of Landlord's Contribution,
even though the 19th Floor portion of Tenant's Initial Installation shall not be
complete on the date of Tenant's request therefor. In the event that Tenant does
not otherwise expend an amount sufficient to receive the entire amount of
Landlord's Contribution, Tenant shall be entitled to apply the remaining balance
of Landlord's Contribution to the 19th Floor portion of Tenant's Initial
Installation and any request for disbursement in connection therewith may be
made within twelve (12) months after the date on which Landlord has delivered
possession of the entire 19th Floor to Tenant, subject to delays beyond Tenant's
control.
64. Delivery of the 19th Floor Premises
(A) Notwithstanding the reference on Page 1 of the sleeve of the Lease to
the 19th Floor premises as being part of the Demised Premises, Tenant has been
advised, and is fully aware, that the 19th Floor is currently leased to other
tenants, as follows:
1. Consumer Graphic Resources (New York), Inc. (3,450 rentable
square feet); lease expiration date May 31, 1994
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and Penthouse Floors
8 West 40th Street
2. Residential Capital Corp. (1,100 rentable square feet); lease
expiration date June 30, 1995
3. Richard L. Purnick (950 rentable square feet); lease expiration
date April 30, 1996
(B) Landlord agrees not to renew or extend any of the above captioned
leases and to exercise its best efforts to obtain vacant, broom-clean and
unencumbered possession of each such applicable space as soon as possible after
the date of this Lease and deliver each unit to Tenant as same becomes
available. Landlord agrees that, promptly after the date of this Lease, it will
attempt to relocate Residential Capital Corp. and Richard L. Purnick within the
Building by offering them attractive rents and/or other incentives. In the event
that any of the present 19th Floor tenants fails to vacate its space immediately
upon the expiration date of its lease (as set forth above), Landlord shall
promptly commence holdover proceedings against such tenant(s) and diligently
prosecute such proceedings until it obtains vacant, broom-clean and unencumbered
possession of such space(s). Landlord shall not consent to any stay or extension
of any time in any eviction proceeding(s) it may bring against any such
tenant(s), without the prior written consent of Tenant, which consent Tenant
agrees not to unreasonably withhold, condition or delay.
(i) In the event Landlord is unable to deliver any portion of the 19th
Floor premises to Tenant by July 1, 1994, at the request of Tenant,
Landlord agrees to make available to Tenant temporary space ("Temporary
Space") in the Building of approximately similar size of each unit which
Landlord is unable to deliver possession of, for Tenant's use. Tenant shall
pay to Landlord for any such Temporary Space rent at the rate of $12.50 per
rentable square foot, including electricity, commencing ninety (90) days
after actual possession of each such Temporary Space by Tenant, payable on
the 1st day of each month. Each such Temporary Space shall be delivered to
Tenant in its then "AS IS" condition and Landlord shall not be required to
perform any work in connection therewith.
(ii) Tenant agrees to, and shall, surrender such Temporary Space to
Landlord at such time as Landlord obtains possession of the applicable
space on the 19th Floor, demolishes same and completes removal of ACM in
said applicable space on the 19th Floor in accordance with the provisions
of Article 65. After completion of such work, Landlord shall promptly
deliver possession of the applicable space to Tenant.
(iii) In the event Landlord is unable to deliver possession of any
portion of the 19th Floor premises on or before July 1, 1994, the Base Rent
applicable to the 19th Floor premises shall be reduced at the rate of
$28.50 per rentable square foot and additional rent in the form of Taxes
and Operating Expenses shall be abated, applicable to such portion of the
19th Floor space which Landlord has not been able to deliver possession of
to Tenant. The Commencement Date for each space shall be
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four (4) months from the date possession for each such space is delivered
to Tenant (the "19th Floor Commencement Date") and the Base Rent shall be
increased at the same rate as the reduction referred to above as of the
applicable 19th Floor Commencement Date, except that the Rent Commencement
Date of each applicable 19th Floor Premises shall commence six (6) months
after each applicable 19th Floor Commencement Date.
(iv) Anything herein to the contrary notwithstanding, provided this
lease shall be in full force and effect and Tenant shall not be in default
of any material provision hereunder beyond any applicable notice and grace
period, the Base Rent attributable to the 19th Floor shall abate from the
Commencement Date through the date that is one day prior to the Rent
Commencement Date, subject to the provisions of subparagraph (B) (iii)
above.
65. Landlord's Work
(A) Landlord agrees, within fifteen (15) days after the execution and
delivery of this Lease to commence to demolish the Demised Premises and complete
same and remove all asbestos-containing material ("ACM") therefrom within twenty
(20) days thereafter, at Landlord's sole cost and expense and deliver to Tenant
the required New York City DEP Form ACP5 in connection with Tenant's Initial
Installation in the Demised Premises, executed by a New York City Certified
Asbestos Investigator, certifying, with respect to the Demised Premises, either
(i) the "surfaces of relevant structure(s) affected by an alteration are free of
any known asbestos-containing material ('ACM')", i.e., material containing
greater than 1% asbestos by weight or (ii) "cumulative surfaces of relevant
structure(s) affected by an alteration contain 10 square feet or less and 25
linear feet or less of friable ACM or of normally nonfriable ACM that alteration
may make friable" (neither (i) nor (ii) above shall be deemed to include floor
tile or asbestos (ACM) enclosed behind plaster or similar type construction at
columns and core areas not impacted by Tenant's construction), so as to enable
Tenant to obtain its Building Department permit for Tenant's Initial
Installation.
(B) If, at any time Tenant discovers ACM materials or products, which would
cause the certification described above to be untrue (unless installed by
Tenant), Landlord will cause same to be promptly removed, at Landlord's expense.
Landlord's sole obligation shall be to remove and dispose of such ACM as set
forth above and to provide (i) any necessary fireproofing as required by law at
the time of such removal, with reasonable diligence and (ii) the certificate
referred to above. Such removal may be performed simultaneously with Tenant's
Initial Installation.
66. Expansion Space Option(s)
(A) Provided this Lease is then in full force and effect, Tenant shall have
the right to lease from Landlord up to four (4) additional full floors,
consisting of (i) any two (2) contiguous floors as designated by Landlord of
floors 11, 12 and 14, plus (ii) either the 16th and/or 17th floors
(collectively, the
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and Penthouse Floors
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"Expansion Space"), provided Tenant notifies Landlord of its option with respect
to each Expansion Space, in writing, by registered or certified mail, return
receipt requested, addressed to Landlord at its offices hereinbefore set forth,
time being of the essence, by no later than July 31, 1994. Any such notice shall
be deemed irrevocable.
(B) Landlord has advised Tenant that the 11th, 12th and 14th floors are
currently under lease to other tenants in the Building, whose leases, by their
terms, expire on July 31, 1994.
(C) In addition, portions of the 16th and 17th floor premises are currently
occupied by the following Tenants:
I. 16th Floor Premises:
a. Classic Travel Service, Inc. (1,285 rentable square feet); lease
expiration date 12/31/94;
b. Mahandra Sheth (465 rentable square feet); lease expiration date
12/31/94;
c. 1,090 vacant rentable square feet facing the 40th Street side of
the Building;
d. A.W.B., Ltd. (2,660 rentable square feet covering the rear half
of the floor); lease expiration date 12/31/97.
II. 17th Floor Premises:
a. Overnite Transportation Company (2,495 rentable square feet in
the front portion of the floor); lease expiration date 3/31/95;
b. Brittany Fabrics, Inc. (940 rentable square feet covering the
middle portion of the floor); lease expiration date 5/31/94, with
one (1) option to extend through May 31, 1996;
c. Initial Funding Corp. (2,065 rentable square feet covering the
rear portion of the floor); lease expiration date 8/31/2000.
(D) Provided Tenant has timely exercised its option to lease the applicable
floors referred to in subparagraph (A) above, Landlord agrees to take reasonable
efforts to obtain vacant, broom-clean and unencumbered possession of each such
applicable space effective after the applicable lease expiration date(s) and
deliver each unit to Tenant as same becomes available. In the event that the
tenant of any such space fails to vacate its space immediately upon the
expiration of its lease, Landlord shall promptly commence holdover proceedings
against such tenant(s) and diligently prosecute such proceedings until it
obtains vacant, broom-clean and unencumbered possession of such space(s). Upon
obtaining possession of any such space, Landlord shall promptly demolish same
and deliver to Tenant the ACP Certificates in accordance with the provisions of
Article 65. Landlord shall not consent to any stay or extension of any time in
any eviction proceeding it may bring against any such tenant(s), without the
prior written consent of
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and Penthouse Floors
8 West 40th Street
Tenant, which consent Tenant agrees not to unreasonably withhold, condition or
delay.
67. Base Rent Commencement Date, Etc. With Respect to Expansion Space
(A) Landlord agree's to deliver possession of each applicable Expansion
Space to Tenant promptly after (i) Landlord obtains possession of such Expansion
Space from the then existing tenant(s) and (ii) Landlord demolishes such space,
removes all ACM therefrom and delivers to Tenant the applicable ACP5
Certificate referred to in Article 65.
The Commencement Date of each such applicable Expansion Space shall
commence four (4) months after delivery of possession to Tenant and the Rent
Commencement Date of each such Expansion Space shall commence six (6) months
after each applicable Commencement Date.
Except as set forth above, each such Expansion Space shall be
delivered to Tenant, vacant, unencumbered, broom-clean and otherwise in their
then "as is" condition.
(B) If, as and when each Expansion Space shall become part of the Demised
Premises, the Base Rent and additional rent per annum then in effect under this
Lease shall be increased as to such Expansion Space as of the respective Rent
Commencement Dates and the Base Rent step up dates of each Expansion Space shall
be at the same rate per rentable square foot and the same dates as is then being
charged for the 18th, 19th, 20th, 21st and Penthouse floors, but reduced by the
sum of One ($1.00) Dollar per annum per rentable square foot applicable to each
floor of Expansion Space or portion thereof, and shall also include the same
Base Years and the additional allocable Proportionate Share(s) for purposes of
Articles 39 and 40, and the additional allocable Electric Factor.
By way of example: If Tenant timely and validly exercises its option
to lease the entire 16th Floor Premises effective as of January 1, 1995, the
annual Base Rent for the 16th Floor Premises shall be as follows: (a) for the
period from January 1, 1995 through and including September 30, 1997 at an
annual rate of $151,250.00, (b) for the period from October 1, 1997 through and
including September 30, 2001 at an annual rate of $167,750.00 and (c) for the
period October 1, 2001 through and including September 30, 2004 at an annual
rate of $184,250. The Base Year for Real Estate Taxes and for Operating Expenses
shall be calendar year 1995.
The parties agree that each floor of Expansion Space (i) contains
5,500 rentable square feet, and (ii) has a Proportionate Share of 5.16% and an
Electrical Factor of $13,750.
(C) Such leasing shall otherwise be on the same terms and conditions as
contained in this Lease for the remainder of the Lease Term herein, except that
Tenant shall be allowed a work allowance in the sum of Forty ($40.00) Dollars
per rentable square feet for each such rentable square foot of Expansion Space
that becomes part of the Demised Premises, same to be payable to Tenant
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and Penthouse Floors
8 West 40th Street
by Landlord in accordance with the terms and provisions of Article 64.
68. Execution of Expansion Space Documents
If Tenant exercises its option to lease any such Expansion Space referred
to in this Lease, then, Landlord and Tenant shall execute and exchange
amendment(s) to this Lease confirming the inclusion of such space in the Demised
Premises and the consequent changes in Base Rent and additional rent which are
provided above, within thirty (30) days after same are submitted by Landlord
("Landlord's Notice"), in form reasonably acceptable to Landlord and Tenant for
such applicable space(s). Failure of Tenant to execute any such documents shall
not affect Tenant's obligations hereunder, including Tenant's obligation to pay
the Base Rent and additional rent applicable to each such Expansion Space as
herein set forth.
69. Stoppage or Suspension of Building Services
If (i) any services to be provided to the Demised Premises are not provided
(x) for five (5) consecutive Business Days because of a failure of Building
systems or any other Building condition due to events arising or causes
originating within the Building (and not due to the Tenant's acts, omissions or
negligence) or (y) for ten (10) consecutive Business Days because of a failure
of Building systems due to events arising or causes originating outside of the
Building, and (ii) the Demised Premises or any portion thereof are rendered
untenantable thereby, then Base Rent and additional rent shall be abated in
proportion to the rentable area rendered untenantable from and after the day
following such fifth or tenth Business Day, as the case may be, until such
service is restored. For the purposes of this Article 69, if forty (40%) percent
of the Demised Premises is rendered untenantable by virtue of the causes
referred to in this Article 69 and the Tenant ceases to occupy the entire
Demised Premises, then the entire Demised Premises shall be deemed to be
untenantable and the Rent shall abate. If the entire Demised Premises is
rendered untenantable by virtue of any of the causes referred to in this Article
69 for one hundred eighty (180) consecutive days, the Tenant may terminate this
Lease upon thirty (30) days prior written notice given within thirty (30) days
after the expiration of such 180-day period.
Adjacent Excavation - Shoring 32. If an excavation shall be made upon land
adjacent to the demised premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the demised premises for the purpose of doing such work as
said person shall deem necessary to preserve the wall or the building of which
demised premises form a part from injury or damage and to support the same by
proper foundations without any claim for damages or indemnity against Owner, or
diminution or abatement of rent.
Rules And Regulations 33. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given to Tenant at least thirty
(30) days prior to the proposed implementation date thereof. 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 twenty (20) 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.
Estoppel Certification 35. Tenant, at any time, and from time to time, upon at
lease 10 days' prior notice by Owner, shall execute, acknowledge and deliver to
Owner, and/or to any other person, firm or corporation specified by Owner, a
statement certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as modified and stating the modifications,) stating the dates to which the rent
and additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
Successors And Assigns: 36. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns.
SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
40th ASSOCIATES, Landlord
BY: 8 W. 40th CORP.,
General Partner
-------------------------------
Witness For Owner:
BY: /s/ SCOTT RESNICK
- ---------------------------------- -------------------------------
SCOTT RESNICK, V.P.
LONDON FOG CORPORATION, Tenant
Witness For Tenant:
BY: /s/ ARNOLD P. COHEN
- ---------------------------------- -------------------------------
ARNOLD P. COHEN, CHAIRMAN
ACKOWLEDGEMENTS
CORPORATE OWNER
STATE OF NEW YORK, ss.:
County of
On this ____ day of _______________, 19__, before me presonally came
__________________________ to me known, who being by me duly sworn, did depose
and say that he resides in _____________________________________ that he is the
__________________ of ______________________ the corporation described in and
which executed the foregoing instrument, as OWNER: that he knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
- --------------------------------------------------------------------------------
INDIVIDUAL OWNER
STATE OF NEW YORK, ss.:
County of
On this __________ day of ________________, 19__, before me personally came
_______________________________ to me known and known to me to be the individual
___________________________ decribed in and who, as OWNER, executed the
foregoing instrument and acknowledged to me that ___________________ he executed
the same.
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CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of
On this ____ day of _______________, 19__, before me presonally 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.
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INDIVIDUAL TENANT
STATE OF NEW YORK, ss.:
County of
On this __________ day of ________________, 19__, before me personally came
_______________________________ to me known and known to me to be the individual
___________________________ decribed in and who, as TENANT, executed the
foregoing instrument and acknowledged to me that ___________________ he executed
the same.
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GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to
Owner making the within lease with Tenant, the undersigned guarantees to Owner.
Owner's successors and assigns, the full performance and observance of all the
covenants, conditions and agreements, therein provided to be performed and
observed by Tenant, including the "Rules and Regulations" as therein provided,
without requiring any notice of non-payment, non-performance, or non-observance,
or proof, or notice, or demand, whereby to charge the undersigned therefor, all
of which the undersigned hereby expressly waives and expressly agrees that the
validity of this agreement and the obligations of the guarantor hereunder shall
in no wise be terminated, affected or impaired by reason of the assertion by
Owner against Tenant of any of the rights or remedies reserved to Owner pursuant
to the provisions of the within lease. The undersigned further covenants and
agrees that the guaranty shall remain and continue in full force and effect as
to any renewal, modification or extension of this lease and during any period
when Tenant is occupying the premises as a "statutory tenant." As a further
inducement to Owner to make this lease and in consideration thereof, Owner and
the undersigned covenant and agree that in any action or proceeding brought by
either Owner or the undersigned against the other on any matters whatsoever
arising out of, under, or by virtue of the terms of this lease or of this
guarantee that Owner and the undersigned shall and do hereby waive trial by
jury.
Dated 19
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Guarantor
--------------------------
Witness
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Guarantor's Residence
Business Address
Firm Name
STATE OF NEW YORK ) ss.:
COUNTY OF )
On this day of , 19 , before me
personally came to me known and known to
me to be the individual described in, and who executed the foregoing Guaranty
and acknowledged to me that he executed the same.
------------------------------
Notary
IMPORTANT PLEASE READ
RULES AND REGULATIONS ATTACHED
TO AND MADE A PART OF
THIS LEASE IN ACCORDANCE
WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibles, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said premises clean and free from ice, snow, dirt and
rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the 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 animals or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same in visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability, and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall 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 comment or other similar adhesive material being expressly
prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the
hours of 6 P.M. and 8 A.M. and at all hours on Sundays, and legal holidays all
persons who do not present a pass to the building signed by Owner. Owner will
furnish passes to persons for whom any Tenant requests same in writing. Each
Tenant shall be responsible for all persons for whom he requests such pass and
shall be liable to Owner for all acts of such persons.
11. Owner shall have the right to prohibit any advertising by any Tenant
which in Owner's opinion, tends to impair the reputation of the building or its
desirability as a as a building for offices, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
13. If the building contains central air conditioning and ventilation,
Tenant agrees to keep all windows closed at all times and to abide by all rules
and regulations issued by the Owner with respect to such services. If Tenant
requires air conditioning or ventilation after the usual hours, Tenant shall
give notice in writing to the building superintendent prior to 3:00 P.M. in the
case of services required on week days, and prior to 3:00 P.M. on the day prior
in the case of after hours service required on weekends or on holidays.
14. Tenant shall not move any safe, heavy machinery, heavy equipment,
bulky matter, or fixtures into or out of the building without Owner's prior
written consent. If such safe, machinery, equipment, bulky matter or fixtures
requires special handing, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours as Owner may designate.