Exhibit 10.3
2/94
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STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York, Inc.
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Agreement of Lease, made as of this 15th day of September 1997 between Clemons
Management Corp. c/o Bernstein Real Estate of 855 Avenue of the Americas, New
York, N.Y., party of the first part, hereinafter referred to as OWNER, and The
Star Media Network, Inc. party of the second part, hereinafter referred to as
TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner
Entire Fifth Floor
in the building known as 29 - 33 West 36th Street in the Borough 0f Manhattan,
City of New York, for the term of Five (5) Years
(or until such term shall sooner cease and expire as hereinafter provided) to
commence on the 1st day of September nineteen hundred and ninety seven, and to
end on the 31st day of August two thousand and two and both dates inclusive, at
an annual rental rate of See R5.
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 covenant
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 General offices for
multi-media company
provided such use is in accordance with the certificate of occupancy for the
building, if any, and for no other purpose.
Alterations:
3. Tenant shall make no structural 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
[Intentionally Omitted] affect utility services or plumbing and electrical
lines, in or to the interior of the demised premises using contractors or
mechanics first approved in each instance by Owner which approval shall not be
unreasonably withheld or delayed. Tenant shall, at its expense, before making
any alterations, additions, installations or improvements obtain all permits,
approval and certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval thereof and shall
deliver promptly duplicates of all such permits, approvals and certificates to
Owner. Tenant agrees to carry and will cause Tenant's contractors and
sub-contractors to carry such workman's compensation, general liability,
personal and property damage insurance as Owner may 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 thereafter, at Tenant's
expense, by payment or filing the bond required by law or otherwise. All
fixtures and all paneling, partitions, railings and like installations,
installed in the premises at any time, either by Tenant or by Owner on Tenant's
behalf, shall, upon installation, become the property of Owner and shall remain
upon and be surrendered with the demised premises. Nothing in this Article shall
be construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or removed from the
premises by Owner, at Tenant's expense. Notwithstanding anything to the contrary
contained in this Article 3 or elsewhere in this Lease, Tenant, shall be
entitled to make non-structural alterations of a decorative nature to the
Premises, from time to time, without Owner's consent, provided in each instance
the cost thereof shall not exceed $25,000.00, Landlord receives prior notice of
Tenant's intent and Tenant complies with Article 3 of this Lease.
Repairs:
4. Owner shall maintain and repair the exterior of and the public portions of
the building. Tenant shall, throughout the term of this lease, take good care of
the demised [Intentionally Deleted], including the bathrooms and lavatory
facilities (if the demised premises encompass the entire floor of the building)
and the windows and window frames and, the fixtures and appurtenances therein
and at Tenant's sole cost and expense promptly make all repairs thereto and to
the building, whether structural or non-structural in nature, caused by or
resulting from the carelessness, omission, neglect or improper conduct of
Tenant, Tenant's servants, employees, invitees, or licensees, and whether or not
arising from such Tenant conduct or omission, when required by other provisions
of this lease, including Article 6. Tenant shall also repair all damage to the
building and the demised premises caused by the moving of Tenant's fixtures,
furniture or equipment. All the aforesaid repairs shall be of quality or class
equal to the original work or construction. If Tenant fails, after ten days
notice, to proceed with due diligence to make repairs required to be made by
Tenant, the same may be made by the Owner at the expense of Tenant, and the
expenses thereof incurred by Owner shall be collectible, as additional rent,
after rendition of a bill or statement therefor. If the demised premises be or
become infested with vermin, Tenant shall, at its expense, cause the same to be
exterminated. Tenant shall give Owner prompt notice of any defective condition
in any plumbing, heating system or electrical lines located in the demised
premises and following such notice, Owner shall remedy the condition with due
diligence, but at the expense of Tenant, if repairs are necessitated by damage
or injury attributable to Tenant, Tenant's servants, agents, employees, invitees
or licensees as aforesaid. Except as specifically provided in Article 9 or
elsewhere in this lease, there shall be no allowance to the Tenant for a
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner, Tenant or
others making or failing to make any repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises or in
and to the fixtures, appurtenances or equipment thereof. It is specifically
agreed that Tenant shall not be entitled to any set off or reduction of rent by
reason of any failure of Owner to comply with the covenants of this or any other
article of this lease. Tenant agrees that Tenant's sole remedy at law in such
instance will be by way of any action for damages for breach of contract. The
provisions of this Article 4 with respect to the making of repairs shall not
apply in the case of fire or other casualty with regard to which Article 9
hereof shall apply. Notwithstanding anything to the contrary contained in
Articles 4, 20, 27, 31 or elsewhere in this Lease, if, as a result of (i)
repairs, alterations, additions or improvements made by or on behalf of Owner
(not required by compliance with any new law or regulation), (ii) the
interruption or stoppage of the plumbing, electric, heating, air-conditioning,
elevator or other systems serving the demised premises (other than any
interruption of stoppage because of inability to obtain parts or similar reason
beyond the reasonable control of Owner) Tenant shall be completely unable to
conduct business in the full demised premises for more than five (5) consecutive
business days, then and in such event, the fixed rental and additional rental
payable by Tenant under this Lease shall be abated from and after the sixth
(6th) day of such interruption and until the date on which Tenant is able to
conduct its business in the demised premises. Owner agrees to make any repairs
required as quickly as possible under the circumstances and to use its best
efforts not to interfere with Tenant's business operations.
Window
Cleaning:
5. Tenant will not clean nor require, permit. suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the New York State Labor Law or any other applicable law 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:
6. Prior to time commencement of the lease term, if Tenant is then in
possession, and at all times thereafter Tenant shall, at Tenant's sole cost and
expense, promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, or the Insurance Services Office, or any similar body which shall
impose any violation, order or duty upon Owner or Tenant with respect to the
demised premises, whether or not arising out of Tenant's use or manner of use
thereof or, with respect to the building, if arising out of Tenant's use or
manner of use of the demised premises of the building (including the use
permitted under the lease). Except as provided in Article 30 hereof, nothing
herein shall require Tenant to make structural repairs or alterations unless
Tenant has, by its manner of use of the demised premises or method of operation
therein, violated any such laws, ordinances, orders, rules, regulations or
requirements with respect thereto. Tenant shall not do or
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permit any act or thing to be done in or to the demised premises which is
contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner. Tenant shall not keep anything in the demised premises except
as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. If by reason of failure to comply with the foregoing the
fire insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of such
failure by Tenant. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" or rate for the building or demised premises
issued by a body making fire insurance rates applicable to said premises shall
be conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to said premises. Tenant
shall not place a load upon any floor of the demised premises exceeding the
floor load per square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to prescribe the weight and position of
all safes, business machines and mechanical equipment. Such installations shall
be placed and maintained by Tenant, at Tenant's expense, in settings sufficient,
in Owner's judgement, to absorb and prevent vibration, noise and annoyance.
Notwithstanding anything to the contrary in Article 6, Article 30, or elsewhere
in this Lease, it is understood that Tenant shall not be required to incur any
expense in connection with any improvements, repairs, additions, alterations or
changes (collectively, "changes") required to be made to the demised premises or
the building by reason of any departmental or governmental regulation, order or
law, including, but not limited to, installation of sprinkler systems or other
fire prevention or safety measures, and Owner shall be solely responsible
therefor, unless the same are required by reason of Tenant's particular manner
of use of the demised premises, provided, however, that Tenant, at Tenant's
expense, shall make any such changes required by Tenant's alterations to the
premises. Further notwithstanding anything to the contrary contained
hereinabove, Tenant will contribute up to $1,000 in any lease year towards
changes which would be the Owner's responsibility hereunder.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
Tenant's
Liability
Insurance
Property
Loss,
Damage,
Indemnity:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, nor for loss of or damage
to any property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence or willful acts of Owner, its contractors, agents,
servants or employees; Owner or its agents shall not be liable for any tenants
or persons in, upon or about said building or caused by operations in connection
of any private, public or quasi public work. If at any time any windows of the
demised premises are temporarily closed, darkened, Owner shall not be liable for
any damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor ababtement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction. Tenant
shall indemnify and save harmless Owner against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable attorney's fees,
paid, suffered or incurred as a result of any breach by Tenant, Tenant's agents,
contractors, employees, invitees, or licensees, of any covenant or condition of
this lease, or the carelessness, negligence or improper conduct of the Tenant,
Tenant's agents, contractors, employees, invitees or licensees. Tenant's
liability under this lease extends to the acts 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. Counsel selected by Tenant's
insurer shall be deemed accept able to Owner. Supplementing Article 8 and
notwithstanding anything to the contrary contained therein or elsewhere in this
Lease, Owner shall not be relieved from any liability to Tenant for, nor shall
Tenant indemnify Owner against, any injury to persons or property, or any loss
or damage, arising from the wilful misconduct or negligence of Owner, or its
agents, contractors or employees.
Destruction,
Fire and
Other
Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner and this
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by and at the
expense of Owner and the rent and other items of additional rent, until such
repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable by
fire or other casualty, then the rent and other items of additional rent as
hereinafter expressly provided shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when the premises shall
have been repaired and restored by Owner (or sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above), subject to
Owner's right to elect not to restore the same as hereinafter provided. (d) If
the demised premises are rendered wholly unusable or (whether or not the demised
premises are damaged in whole or in part) if the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant,
given within 90 days after such fire or casual or 30 days after adjustment of
the insurance claim for such fire or casualty, whichever is sooner, specifying a
date for the occupation of the lease, which date shall not be more than 60 days
after the giving of such notice, and upon the date specified in such notice the
term of this lease shall expire as fully and completely as if such date were the
date set forth above for the termination of this lease and Tenant shall
forthwith quit, surrender and vacate the premises without prejudice however, to
Owner's rights and remedies against Tenant under the lease provisions in effect
prior to such termination, and any rent owing shall be paid up to such date and
any payments of rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant. Unless Owner shall serve a
termination notice as provided for herein, Owner shall make the repairs and
restorations under the conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond Owner's control. After any such casualty, Tenant
shall cooperate with Owner's restoration by removing from the premises as
promptly as reasonably possible, all of Tenant's salvageable inventory and
movable equipment, furniture, and other property. Tenant's liability for rent
shall resume fifteen (15) days after written notice from Owner that the premises
are substantially ready for Tenant's occupancy. [Intentionally Deleted] (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, including Owners obligation to restore under subparagraph (b) above,
each party shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage resulting from
fire or other casualty, and to the extent that such insurance is in force and
collectible and to the extent permitted by law, Owner and Tenant each hereby
releases and waives all right of recovery with respect to subparagraphs (b), (d)
and (e) above, against the other or any one claiming through or under each of
them by way of subrogation or otherwise. The release and waiver herein referred
to shall be deemed to include any loss or damage to the demised premises and/or
to any personal property, equipment, trade fixtures, goods and merchandise
located therein. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefitting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof. Notwithstanding anything to the contrary contained
within this Article 9 or elsewhere within this Lease, except if the damage to
the demised premises or building is due to Tenant's or Tenant's agents fault,
carelessness, wilful misconduct or negligence, Tenant may terminate this Lease
if Landlord, in its sole determination and within ninety days (90) after such
casualty, determines that the premises or building cannot be repaired or
replaced or rendered usable within one hundred and twenty (120) days from
Landlord's determination.
In addition, if the demised premises or the building are, in Landlord's sole
determination, substantially damaged during the last year of the Lease and such
damage is not due to Tenant's or Tenant's agents fault, carelessness, wilful
misconduct or negligence, Tenant may cancel the Lease in accordance with this
Paragraph.
However, notwithstanding anything to the contrary contained herein, in the event
that Landlord shall have comparable space ("Temporary Premises") available,
accessible and useable in the Building within thirty (30) days of said casualty
then Tenant shall occupy the Temporary Premises in accordance with the same
terms, conditions, and covenants of this Lease until the demised premises are
restored and may not cancel this Lease.
In order to terminate the Lease according to this Article, Tenant shall, after
Landlord's determination as provided above, give Landlord thirty (30) days
written notice (registered mail, return receipt requested) of its intent to
terminate.
Eminent
Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease. Tenant shall have the right to make
an independent claim to the condemning authority for the value of Tenant's
moving expenses and personal property, trade fixtures and equipment, provided
Tenant is entitled pursuant to the terms of the lease to remove such property,
trade fixtures and equipment at the end of the term and provided further such
claim does not reduce Owner's award.
Assignment,
Mortgage,
Etc.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant or the majority partnership interest of a
partnership Tenant shall be deemed an assignment. If this lease be assigned, or
if the demised premises or any part thereof be underlet or occupied by any body
other than Tenant, Owner may, after default by Tenant, collect rent from the
assignee, under-tenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under-tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting shall not in
any way be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting. Notwithstanding
anything to the contrary contained in Article 11 hereof, or elsewhere in this
Lease, Owner hereby consents from time to time to the subletting of all or
portion of the demised premises, and the assignment of this Lease (i) to a
business entity fifty (50%) percent or more of the outstanding interests in
which are owned by Chase Capital Partners and/or Fernando Espuelas or entities
under common control, (ii) to a business entity succeeding (by merger,
consolidation or otherwise) to substantially all of Tenant's business assets at
the demised premises, and (iii) to a business entity to which Tenant has sold
substantially all of its business assets at the demised premises, provided, in
the case of an assignment of this Lease, the assignee(s) agree, in writing, to
observe the terms and conditions of this Lease to be performed by Tenant. Such
sublet/assignment in (i) - (iii) are contingent upon Tenant's successor having
an equal or greater net worth that Tenant as of the date hereof. Any such
subtenant shall have the right to list its name on the door to the premises and
on the lobby, floor and elevator directories (if any). Without limiting the
foregoing, Owner agrees that no right to recapture all or a portion of the
demised premises as set forth in subdivision B of Article R14, or any right to
share in the rent or other consideration (however characterized and whether or
not in excess of the rent and additional rent payable hereunder) received by
Tenant from the assignee or sublessee, shall be applicable with respect to the
assignments and sublettings contemplated in subdivisions (i) thru (iii) above.
Tenant shall give written notice to Owner of the name and address of the
assignee or sublessee, as the case may be, following any exercise of Tenant's
rights herein. With respect to any other proposed sublettings or assignments,
Tenant shall have the right to withdraw its notice of proposed assignment or
subletting in the event that Owner elects to exercise any of its rights pursuant
to said Article R14. The offering and/or sale or transfer of the stock of Tenant
pursuant to any private placement memorandum or in connection with and following
any public offering shall not be deemed an assignment of this Lease.
Electric
Current:
12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation and Tenant
may not use any electrical equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the building. The change at any time of the character of
electric service shall in no way make Owner liable or responsible to Tenant, for
any loss, damages or expenses which Tenant may sustain, unless arising from the
negligence or willful misconduct of Owner, its agents, employees or contractors.
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 after reasonable notice and during normal business hours to
examine the same and to make such repairs, replacements and improvements as
Owner may reasonably deem necessary and reasonably desirable to any portion of
the building and do not materially and adversely affect Tenant's business
operation or require the removal or relocation of any of Tenant's improvements,
or which Owner may elect to perform in the premises after Tenant's failure to
make repairs or perform any work which Tenant is obligated to perform under this
lease, or for the purpose of complying with laws, regulations and other
directions of governmental authorities. Tenant shall permit Owner to use and
maintain and replace pipes and conduits in and through the demised premises and
to erect new pipes and conduits therein provided, wherever possible, they are
within walls or otherwise concealed. Owner may, during the progress of any work
in the demised premises, take all necessary materials and equipment into said
premises without the same constituting an eviction nor shall the Tenant be
entitled to any abatement of rent while such work is in progress nor to any
damages by reason of loss or interruption of business or otherwise. Throughout
the term hereof Owner shall have the right to enter the demised premises at
reasonable hours after reasonable notice and during normal business hours for
the purpose of showing the same to prospective purchasers or mortgagees of the
building, and during the last six months of the term for the purpose of showing
the same to prospective tenants and may, during said six months period, place
upon
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[GRAPHIC OMITTED] Rider to be added if necessary.
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the demised premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised premises, Owner or Owner's
agents may enter the same whenever such entry may be necessary or permissible by
master key or forcibly and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
substantially all of Tenant's property therefrom. Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligation hereunder.
Notwithstanding the foregoing, except in event of emergency, as aforesaid, Owner
shall not enter the demised premises except during regular business hours, upon
reasonable notice to Tenant, accompanied by Tenant or its representative.
Further supplementing Articles 4, 13, 18 and 20, and notwithstanding anything to
the contrary contained therein or elsewhere herein, Owner agrees: (i) that in
the exercise of its various rights under this Lease to make repairs,
improvements, replacements, etc., and/or to have access to the demised premises,
Owner agrees to make any repairs required as quickly as possible under the
circumstances and to use all reasonable efforts so as not to interfere with the
operation of Tenant's business, and Owner shall promptly repair any damage to
the demised premises arising therefrom, and (ii) whenever it is provided in this
Lease that Owner may recover from Tenant (or be indemnified by Tenant as to)
attorneys' fees, costs and/or expenses, such fees, costs and expenses shall be
reasonable in amount.
Vault,
Vault Space,
Area:
14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are a part. Tenant has inspected the premises and accepts them as is,
subject to the riders annexed hereto with respect to Owner's work, if any. In
any event, Owner makes no representation as to the condition of the premises and
Tenant agrees to accept the same subject to violations, whether or not of
record. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenant shall be responsible for and
shall procure and maintain such license or permit. [Intentionally Omitted]
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by sending of a written notice to Tenant within
a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor; or (2) the making by Tenant of an assignment
or any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised but shall forthwith quit and surrender the premises. If this
lease shall be assigned in accordance with its terms, the provisions of this
Article 16 shall be applicable only to the party then owning Tenant's interest
in this lease.
(b) It is stipulated and agreed that in the event of the termination of this
lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any other
provisions of this lease to the contrary, be entitled to recover from Tenant as
and for liquidated damages an amount equal to the difference between the rental
reserved hereunder for the unexpired portion of the term demised and the fair
and reasonable rental value of the demised premises for the same period. In the
computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination and the fair and reasonable
rental value of the demised premises for the period for which such installment
was payable shall be discounted to the date of termination at the rate of four
percent (4%) per annum. If such premises or any part thereof be relet by the
Owner for the unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall be deemed to be
the fair and reasonable rental value for the part or the whole of the premises
so re-let during the term of the re-letting. Nothing herein contained shall
limit or prejudice the right of the Owner to prove for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises becomes vacant or deserted "or if this lease be rejected under
ss.235 of Title 11 of the U.S. Code (bankruptcy code);" or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; or
if Tenant shall have failed, after seven (7) days notice days written notice, to
redeposit with Owner any portion of the security deposited hereunder which Owner
has applied to the payment of any rent and additional rent due and payable
hereunder or failed to move into or take possession of the premises within
[Intentionally Omitted] days after the commencement of the term of this lease,
of which fact Owner shall be the sole judge; then in any one or more of such
events, upon Owner serving a written fifteen (15) days notice upon Tenant
specifying the nature of said default and upon the expiration of said fifteen
(15) days, if Tenant shall have failed to comply with or remedy such default, or
if the said default or omission complained of shall be of a nature that the same
cannot be completely cured or remedied within said fifteen (15) day period, and
if Tenant shall not have diligently commenced during such default within such
fifteen (15) day period, and shall not thereafter with reasonable diligence and
in good faith, proceed to remedy or cure such default, then Owner may serve a
written five (5) days' notice of cancellation of this lease upon Tenant, and
upon the expiration of said five (5) days this lease and the term thereunder
shall end and expire as fully and completely as if the expiration of such five
(5) day period were the day herein definitely fixed for the end and expiration
of this lease and the term thereof and Tenant shall then quit and surrender the
demised premises to Owner but Tenant shall remain liable as hereinafter
provided.
(2) If the notice provided for in (1) hereof shall have been given, and the term
shall expire as aforesaid; or if Tenant shall make default in the payment of the
rent reserved herein or any item of additional rent herein mentioned or any part
of either or in making any other payment herein required: within seven (7) days
after written notice from Owner then and in any of such events Owner may without
notice, re-enter the demised premises and dispossess Tenant by summary
proceedings, and the legal representative of Tenant or other occupant of demised
premises and remove their effects and hold the premises as if this lease had not
been made, and Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end. If Tenant shall make
default hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease, Owner may cancel and terminate such renewal or
extension agreement by written notice.
Remedies of
Owner and
Waiver of
Redemption:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the premises or any part or parts
thereof; either in the name of Owner or otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this lease, (c) Tenant or
the legal representatives of Tenant shall also pay Owner as liquidated damages
for the failure of Tenant to observe and perform said Tenant's covenants herein
contained, any deficiency between the rent hereby reserved and or covenanted to
be paid and the net amount, if any, of the rents collected on account of the
subsequent lease or leases of the demised premises for each month of the period
which would otherwise have constituted the balance of the term of this lease.
The failure of Owner to re-let the premises or any part or parts thereof shall
not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner may incur in connection with re-letting, such as legal expenses,
reasonable attorneys' fees, brokerage, advertising and for keeping the demised
premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant he entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof. Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws.
Fees and
Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, after notice if
required and upon expiration of any applicable grace period if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately or at any time thereafter and without notice perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing or
in connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorney's fees, in instituting,
prosecuting or defending any action or proceedings, and prevails in any such
action or proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within ten (10) days of rendition of any bill
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner as damages.
Building
Alterations and
Management:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and or location of public entrances, passageways, doors. doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenant making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
any controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants. [Intentionally Omitted]
Page 3 of 6
No Repre-
sentations by
Owner:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the demised premises or the
building except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" on the date possession is tendered (except for
the electrical, heating, and air-conditioning equipment and systems which shall
be in good working order on the date of delivery of possession, and except as
may otherwise be set forth herein), and acknowledges that the taking of
possession of the demised premises by Tenant shall be conclusive evidence that
the said premises and the building of which the same form a part were in good
and satisfactory condition at the time such possession was so taken, except as
to latent defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought. [Intentionally Omitted)
End of
Term:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, broom clean, in good
order and condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property from the demised premises. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this Lease or any renewal thereof, 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 34
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
No Waiver:
25. The failure of Owner to seek redress for violation of, or to insist upon the
strict performance of any covenant or condition of this lease or of any of the
Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent
a subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of rent
with knowledge of the breach of any covenant of this lease shall not be deemed a
waiver of such breach and no provision of this lease shall be deemed to have
been waived by Owner unless such waiver be in writing signed by Owner. No
payment by Tenant or receipt by Owner of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement of any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to
Owner's right to recover the balance of such remit or pursue any other remedy in
this lease provided. All checks tendered to Owner as and for the rent of the
demised premises shall be deemed payments for the account of Tenant. Acceptance
by owner of rent from anyone other than Tenant shall not be deemed to operate as
an attornment to Owner by the payor of such rent or as a consent by Owner as an
assignment or subletting by Tenant of the demised premises to such payor, or as
a modification of the provisions of this lease. No act or thing done by Owner or
Owner's agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No employee of Owner 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 termination of the lease or a surrender of the premises.
Waiver of
Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further mutually agreed
that in the event Owner commences any proceeding or action for possession
including a summary proceeding for possession of the premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding including a counterclaim under Article 4 except for statutory
mandatory counterclaims.
Inability to
Perform:
27. This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no way be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment,
fixtures or other materials if Owner is prevented or delayed from doing so by
reason of strike or labor troubles or any cause whatsoever beyond Owner's sole
control including, but not limited to, government preemption or restrictions or
by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions which have been
or are affected, either directly or indirectly, by war or other emergency.
Bills and
Notices:
28. Except as otherwise in this lease provided, a bill statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant by
registered or certified mail addressed to Tenant at the building of which the
demised premises form a part, 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 two (2) business days after the date of mailing of the same in the manner
hereinabove required. A copy of any notice to Tenant shall be sent
simultaneously, by certified mail, return receipt requested, Tenant's attorneys,
Stern, Wiener & Levy, (Attention: Robert N. Pellegrino, Esq.), at 950 Third
Avenue, New York, New York 10022. Notices to Owner shall also be deemed given
two (2) business days after the date the same are mailed in accordance with the
following sentence. Any notice by Tenant to Owner must be served by registered
or certified mail addressed to Owner at the address first hereinabove given or
at such other address as Owner shall designate by written notice.
Water
Charges:
29. If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes (of which fact Tenant constitutes Owner to be the
sole judge) Owner may install a water meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay Owner fur the cost of the meter
and the cost of the installation thereof and throughout the duration of Tenant's
occupancy Tenant shall keep said meter and installation equipment in good
working order and repair at Tenant's own cost and expense in default of which
Owner may cause such meter and equipment to be replaced or repaired and collect
the cost thereof from Tenant as additional rent. Tenant agrees to pay for water
consumed, as shown on said meter as and when bills are rendered, and on default
in making such payment Owner may pay such charges and collect the same from
Tenant as additional rent. [Intentionally Omitted] Tenant covenants and agrees
to pay, as additional rent, the sewer rent, charge or any other tax, rent, levy
or charge which now or hereafter is assessed, imposed or a lien upon the demised
premises or the realty of which they are part pursuant to law, order or
regulation made or issued in connection with the use, consumption, maintenance
or supply of water, water system or sewage or sewage connection or system. If
the building or the demised premises or any part thereof is supplied with water
through a meter through which water is also supplied to other premises Tenant
shall pay to Owner, as additional rent, on the first day of each month %
($25.00) of the total meter charges as Tenant's portion. Independently of and in
addition to any of the remedies reserved to Owner hereinabove or elsewhere in
this lease, Owner may sue for and collect any monies to be paid by Tenant or
paid by Owner for any of the reasons or purposes hereinabove set forth.
Sprinklers:
30. Anything elsewhere in this lease to the contrary notwithstanding, if the New
York Board of Fire Underwriters or the New York Fire Insurance Exchange or any
bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant's business,
or the location of partitions, trade fixtures, or other contents of the demised
premises, or for any other reason, or if any such sprinkler system
installations, modifications, alterations, additional sprinkler heads or other
such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate set by any said Exchange or by any fire insurance company, Tenant shall, at
Tenant's expense, promptly make such sprinkler system installations, changes,
modifications, alterations, and supply additional sprinkler heads or other
equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent the sum
of $25.00, on the first day of each month during the term of this lease, as
Tenant's portion of the contract price for sprinkler supervisory service.
Elevators,
Heat,
Cleaning:
31. Owner shall: (a) provide necessary passenger elevator facilities on business
days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m.; (b) if
freight elevator service is provided, same shall be provided only on regular
business days Monday through Friday inclusive, and on those days only between
the hours of 9 a.m. and 12 noon and between 1 p.m. and 5 p.m.; (c) furnish heat,
water and other services supplied by Owner to the demised premises, when and as
required by law, on business days from 8 a.m. to 6 p.m. and on Saturdays from 8
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Page 4 of 6
a.m. to 1 p.m.; (d) clean the public halls and public portions of the building
which are used in common by all tenants. Tenant shall, at Tenant's expense, keep
the demised premises, including the windows, clean and in order, to the
reasonable satisfaction of Owner, and for that purpose shall employ the person
or persons, or corporation approved by Owner. Tenant shall pay to Owner the cost
of removal of any of Tenant's refuse and rubbish from the building. Bills for
the same shall be rendered by Owner to Tenant at such time as Owner may elect
and shall be due and payable hereunder, and the amount of such bills shall be
deemed to be, and be paid as, additional rent. Tenant shall, however, have the
option of independently contracting for the removal of such rubbish and refuse
in the event that Tenant does not wish to have same done by employees of Owner.
Under such circumstances, however, the removal of such refuse and rubbish by
others shall be subject to such rules and regulations as, in the judgment of
Owner, are necessary for the proper operation of the building. Owner reserves
the right to stop service of the heating, elevator, plumbing and electric
systems, when necessary, by reason of accident, or emergency, or for repairs,
alterations, replacements or improvements, in the judgment of Owner desirable or
necessary to be made, until said repairs, alterations, replacements or
improvements shall have been completed. If the building of which the demised
premises are a part supplies manually operated elevator service, Owner may
proceed diligently with alterations necessary to substitute automatic control
elevator service without in any way affecting the obligations of Tenant
hereunder.
Security:
32. Tenant has deposited with Owner the sum of $14,083,34 as security for the
faithful performance observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency in the reletting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall shall not then be in default of this Lease
(beyond any applicable grace and notice period, if any), the security shall be
returned to Tenant [Intentionally Omitted] after the date fixed as the end of
the Lease and after delivery of entire possession of the demised premises to
Owner. In the event of a sale of the land and building or leasing of the
building, of which the demised premises form a part, Owner shall have the right
to transfer the security to the vendee or lessee and Owner shall thereupon be
released by Tenant from all liability for the return of such security; and
Tenant agrees to look to the new Owner solely for the return of said security,
and it is agreed that the provisions hereof shall apply to every transfer or
assignment made of the security to a new Owner. Tenant further covenants that it
will not assign or encumber or attempt to assign or encumber the monies
deposited herein as security and that neither Owner nor its successors or
assigns shall he bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
Captions:
33.The Captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this lease nor the intent
of any provision thereof.
Definitions:
34. The term "Owner" as used in this lease means only the owner of the fee or of
the leasehold of the building, or the mortgagee in possession, for the time
being of the land and building (or the owner of a lease of the building or of
the land and building) of which the demised premises 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 "rent"
includes the annual rental rate whether so expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to Owner from Tenant under this lease, in addition to the annual
rental rate. The term "business days" as used in this lease, shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service, Wherever it is expressly
provided in this lease that consent shall not be unreasonably withheld, such
consent shall not be unreasonably delayed.
Adjacent
Excavation-
Shoring:
35. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises 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:
36. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply strictly with, the Rules and Regulations
annexed hereto and such other and further reasonable and non-discriminatory
Rules and Regulations as Owner or Owner's agents may from time to adopt. Notice
of any additional rules or regulations shall be given in such manner as Owner
may elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within fifteen (15) days
after the giving of notice thereof. Nothing in this lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against any
other tenant and Owner shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees. All
rule and regulations shall be enforced against Tenant in a non-discriminatory
manner. In the event of any conflict between the terms and conditions of any
Rules and Regulations now or hereafter adopted by Owner and any other provisions
of this Lease, the other provisions of this Lease shall control.
Glass:
37. Owner shall replace any and all plate and other glass damaged or broken from
any cause whatsoever in and about the demised premises other than arising from
the negligence or willful acts of Tenant, its employees, agents, contractors,
licensees and/or invitees.
Estoppel
Certificate:
38. Tenant, at any time, and from time to time, upon at least 10 days' prior
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), stating the dates to which the rent and additional rent have
been paid, and stating whether or not there exists any default by Owner under
this Lease, and, if so, specifying each such default. Owner, from time to time,
upon at least ten (10) days prior notice from Tenant, shall execute, acknowledge
and deliver such certificate to Tenant, and/or to any such other person, firm or
corporation as aforesaid.
Directory
Board Listing:
39. If, at the request of and as accommodation to Tenant, Owner shall place upon
the directory board in the lobby of the building, one or more names of persons
other than Tenant, such directory board listing shall not be construed as the
consent by Owner of an assignment or subletting by Tenant to such person or
persons.
Successors
and Assigns:
40. The covenants, conditions and agreements contained in this lease shall bind
and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building for the satisfaction of Tenant's remedies
for the collection of a judgement (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
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[GRAPHIC OMITTED] Space to be filled in or deleted.
Riders, exhibits and annotations attached hereto are made a part of this Lease.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written. Clemons Management Corp. by
Bernstein Management Corp. d/b/a Bernstein Real Estate, as Agent
[CORP.
SEAL]
Witness for Owner: --------------------------------
By: /s/ Vincent Terranova
- ------------------------------- --------------------------------
Vincent Terranova,
Executive Vice President
[CORP.
SEAL]
Witness for Tenant:
Star Media Network, Inc.
/s/ Donna A. Morales By: [ILLEGIBLE]
- -------------------------------- --------------------------------
DONNA A. MORALES
Notary Public, State of New York
No. O1MO5062926
Qualified in Kings County
Commission Expires July 8, 1998
Page 5 of 6
ID#
--------------------------------
ACKNOWLEDGEMENTS
CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of
On this day of , 19 , before me personally came
to me known, who being by me duly sworn, did depose and say
that he resides in that he is the of
the corporation described in and which executed the foregoing
instrument, as TENANT; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he signed his name
thereto by like order.
--------------------------
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.:
County of
On this day of , 19 , before me personally
came to be known and known to me to be the individual
described in and who, as TENANT, executed the foregoing instrument and
acknowledged to me that he executed the same.
--------------------------
[GRAPHIC OMITTED] IMPORTANT - PLEASE READ [GRAPHIC OMITTED]
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS
LEASE IN ACCORDANCE WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewall
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 he 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 of halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the buildings by reason of noise,
odors, and or vibrations, or interfere in any way, with other Tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish, or
birds be kept in or about the building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove 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 he used an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease of which these Rules and Regulations are a part.
9. No Tenant shall obtain for use upon the demised premises ice, drinking
water, towel and other similar services, or accept barbering or bootblacking
services in the demised premises, except from persons authorized by Owner, and
at hours and under regulations fixed by Owner. Canvassing, soliciting and
peddling in the building is prohibited and each Tenant shall cooperate to
prevent the same.
10. Owner reserves the right to exclude from the building all persons who
do not present a pass to the building signed by Owner. Owner will furnish passes
to persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such persons. Notwithstanding the foregoing, Owner
shall not be required to allow Tenant or any person to enter or remain in the
building, except on business days from 8:00 a.m. to 6:00 p.m. and on Saturdays
from 8:00 a.m. to 1:00 p.m. Tenant shall not have a claim against Owner by
reason of Owner excluding from the building any person who does not present such
pass.
11. Owner shall have the right to prohibit any advertising by any Tenant
which in Owner's opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from Owner, Tenant
shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible, or explosive, or hazardous
fluid, material, chemical or substance, or cause or permit any odors of cooking
or other processes, or any unusual or other objectionable odors to permeate in
or emanate from the demised premises.
13. Tenant shall not use the demised premises in a manner which disturbs
or interferes with other Tenants in the beneficial use of their premises.
Address 29-33 West 36th Street
Premises Entire Fifth Floor
================================================================================
TO
================================================================================
STANDARD FORM OF
[SEAL] Loft [SEAL]
Lease
The Real Estate Board or New York, Inc.
(C) Copyright 1994. All rights Reserved.
Reproduction in whole or in part prohibited.
================================================================================
Dated September 15, 1997
Rent Per Year See R5.
Rent Per Month See R5.
Term Five (5) Years
From 09/01/97
To 08/31/2002
Drawn by
-------------------------------
Checked by
-------------------------------
Entered by
-------------------------------
Approved by
-------------------------------
================================================================================
Page 6 of 6
RIDER ANNEXED TO LEASE BETWEEN CLEMONS MANAGEMENT CORP., As Landlord, and THE
STARMEDIA NETWORK, INC., as Tenant, Dated September 15, 1997, for the Entire
Fifth Floor (the "demised premises") in the building known as 29-33 WEST 36TH
STREET, New York, New York (the "Building").
- ---------------------------------------------------------
R1. RIDER.
To the extent that any provisions of any Rider to this Lease are in any way
inconsistent or conflict with any of the preceding provisions of the Lease, or
of the rules and regulations appended to this Lease, regardless of whether or
not such inconsistency is expressly noted in the Rider, the provisions of the
Rider shall be controlling.
R2. CAPTIONS.
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 provision thereof.
R3. DEFINITIONS.
As used in this Lease and when required by the context, each number (singular
and plural) shall include all numbers, and each gender shall include all
genders. The captions, headings and marginal notes throughout this Lease are for
convenience of reference only and the words contained therein shall in no way be
held or deemed to define, limit, explain, modify, amplify, or add to the
interpretation, construction or meaning of any provision of, or the scope or
intent of, this Lease, nor in any way affect this Lease. Except as otherwise
expressly stated, each payment provided to be made by the Tenant shall be in
addition to, and not in substitution for, all other payments to be made by the
Tenant to the Landlord. The term "PERSON" used herein means person, firm,
association, or corporation, as the case may be. The term "Landlord" or "Owner"
are synonymous.
R4. GOVERNING LAW.
The laws of the State of New York shall govern the validity, performance, and
enforcement of this Lease. The invalidity or unenforceability of any provision
of this Lease shall not affect or impair any other provision. If any provision
of this Lease is capable of two constructions, one of which would render the
provision invalid and the other of which would make the provision valid, then
the provision shall have the meaning which renders it valid. The submission of
this Lease for examination does not constitute an offer to lease and becomes
effective only upon execution and delivery thereof by Landlord and Tenant.
R5. ANNUAL RENT.
A. The annual rental rate ("Base Annual Rent") shall be:
Eighty four thousand five hundred and four ($84,504.00) dollars from
09/01/97 through 08/31/98
Eighty seven thousand four hundred and sixty eight ($87,468.00)
dollars from 09/01/98 through 08/31/99
Ninety thousand five hundred and twenty eighty ($90,528.00) dollars
from 09/01/99 through 08/31/2000
Ninety three thousand six hundred and ninety six ($93,696.00)
dollars from 09/01/2000 through 08/31/2001
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Ninety six thousand nine hundred and seventy two ($96,972.00)
dollars from 09/01/2001 through 08/31/2002
R6. ELECTRIC.
A. The demised premises are separately metered for electricity. Tenant
shall pay directly for all electric current used in the demised
premises for light or power or any other purpose for the exclusive
use of the demised premises and the operation of fans and other
devices in the heating, air conditioning and ventilating which may
exclusively serve the demised premises.
B. Tenant shall keep all electric meters at the demised premises and
all installation equipment in good working order and repair at
Tenant's own cost and expense, in default of which Landlord may
cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant. Provided that Tenant is not
then in default hereunder, Landlord shall assign to Tenant any
guaranty and warranty, covering such required repair, the Landlord
may have obtained. Tenant shall pay for all such items consumed as
shown on said meters within ten (10) days of the rendition of bills
thereof, and on default in making such payment, Landlord may pay
such bills and charges and rents and collect the same from Tenant as
additional rent. Any such costs or expenses incurred or payments
made by Landlord for any reasons or purposes hereinabove stated
shall be paid by Tenant to Landlord on demand or, at Landlord's
election, may be added to any subsequent installment or installments
of Annual Rent.
C. Landlord shall not be responsible for the maintenance or repair of
the Tenant's electrical system from the point beyond and including
the panel box serving the Tenant, air conditioning and ventilation
systems including all mechanical equipment which serves the Tenant
and piping and ducting within Tenants space, and lighting and
lighting fixtures within Tenants space. Said repairs and maintenance
shall be at Tenants sole cost and expense.
D. Landlord shall not be liable to Tenant for any loss or damage or
expense which Tenant may sustain or incur if either the quantity or
character of electric service is changed or is no longer available
or suitable for Tenant's electrical requirements. Any riser or
risers to supply Tenant's electrical requirements, upon written
request of Tenant, will be installed by Landlord, at the sole cost
and expense of Tenant, if, in Landlord's reasonable judgment, the
same will not cause permanent damage or injury to the building or
demised premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations, repairs
or expense or interfere with or disturb other Tenants or occupants.
In addition to the installation of such riser or risers, Landlord
will also at the sole cost and expense of Tenant, install all other
equipment proper and necessary in connection therewith subject to
the aforesaid terms and conditions. Tenant covenants and agrees that
at all times its use of electric current shall never exceed the
capacity of existing feeders to the building or the risers of wiring
installations.
E. Tenant shall make no alteration or additions to the electric
equipment and/or appliances without the prior written consent of
Landlord in each instance, which consent shall not be unreasonably
withheld. Rigid conduit only will be allowed.
R7. REAL PROPERTY TAX.
A. Tenant shall pay, as Additional Rent, eight point three three
(8.33%) percent of any and all increases in real estate taxes or
assessments for public betterments covering the land and the
building of which the demised premises form a part. Said increases
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shall be the amount charged during any Tax Year above the amount
charged during the Base Tax Year.
B. "Tax Year" shall mean each period of twelve (12) months commencing
on the first day of July in which occurs any part of the term of
this Lease or such other period of twelve (12) months occurring
during the term of this Lease as hereafter may be adopted as the
fiscal year for real estate tax purposes of the City of New York or
any other governmental authority.
C. "Base Tax Year" shall mean the Tax Year 1997/1998.
D. Tenant shall pay, as additional rent, eight point three three
percent (8.33%) of any reasonable costs and expenses including,
without limitation, counsel fees incurred by Landlord in contesting
the validity or amount of any taxes or in obtaining a reduction of
the assessed value of the land and building or in attempting to
prevent an increase in the taxes as proposed by the City of New York
or any other governmental authority for any Tax Year after the Base
Tax Year to the extent the same do not exceed the amount of any
refund obtained, if any, as a result of Landlord's efforts.
Provided that Tenant is not then in default of any terms, conditions
or covenants of this Lease, that Tenant is not in stipulation of
settlement with Landlord, that Tenant is not operating under a
rental reduction and further provided that Tenant has paid its
proportionate share of the real estate tax increase for which a
refund has been awarded to Landlord, Tenant shall be entitled to its
proportionate share of said refund, less any costs or expenses
incurred in achieving refund. However, in no event shall Landlord be
required to refund to Tenant more than the amount Tenant paid to
Landlord as its proportionate share of the real estate tax increase
for each year such refund was obtained.
E. Payment of Additional Rent pursuant to paragraphs "(A)" and "(D)"
above shall be made within fifteen (15) days after demand based upon
a statement furnished by Landlord to Tenant with each such demand.
F. The term "real estate taxes" shall mean all taxes and assessments
levied, assessed or imposed at any time by the City of New York or
by any other governmental authority upon or against the land and/or
building of which the demised premises form a part, and also any tax
or assessment levied, assessed or imposed at any time by any
governmental authority in connection with the receipt of income or
rents from said land and/or Building. If, due to a future change in
the method of taxation, or in the taxing authority, a franchise,
license, income, transit, profit or other tax, fee, or governmental
imposition, however designated, shall be levied, assessed or imposed
against Landlord in substitution, in whole or in part, for the said
real estate taxes, or in lieu of additional real estate taxes, then
such franchise, license, income, transit, profit, or other tax, fee,
or governmental imposition shall be deemed to be included within the
definition of "real estate taxes" for the purposes hereof.
G. Any delay or failure of Landlord in billing any amount payable under
this Article shall not constitute a waiver or in any way impair the
continuing obligation of Tenant to make all payments hereunder.
H. Photostatic copies of real estate tax bills and assessments, for the
tax year 1997/1998, and for the tax year in which the increase is
claimed, shall be conclusive evidence of increased real estate taxes
or assessments.
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R8. INSURANCE AND REQUIREMENTS OF LAW.
Supplementing Article 6.
A. Tenant, at its sole cost and expense, shall maintain at all times
during the term of this Lease and at all times when Tenant is in
possession of the demised premises, a comprehensive policy of
general liability insurance in which Landlord, Landlord's managing
agent, any Superior Lessor (as hereinafter defined), any mortgagees
designated by Landlord, and Tenant, are the additional insured, for
any and all claims arising during the term of this Lease for damages
or injuries to goods, wares, merchandise and property and/or for any
personal injury or loss of life, in, upon or about the demised
premises; protecting Landlord, Landlord's managing agent, any
Superior Lessor, any mortgagees designated by Landlord, and Tenant
against any liability whatsoever occasioned by accidents on or about
the demised premises or any appurtenances thereto. Such policy is to
be written by a good and solvent insurance company, satisfactory to
Landlord, in the amount of TWO MILLION AND
00/100---($2,000,000.00)---DOLLARS per occurrence (combined single
limit), THREE MILLION AND 00/100 ($3,000,000.00) DOLLARS in
aggregate. Tenant agrees to deliver to Landlord a certificate of
endorsement of the aforesaid insurance policy and upon Tenant's
failure to provide and keep in force the aforementioned insurance,
it shall be regarded as a material default, entitling Landlord to
exercise any or all of the remedies as provided in this Lease.
B. Tenant shall deliver to Landlord such policies or certificates of
such policies prior to the commencement of the term of this Lease.
Tenant shall procure and pay for renewals of such insurance from
time to time before the expiration thereof, and Tenant shall deliver
to Landlord and any additional insured such renewal policy or
certificate at least thirty (30) days before the expiration of any
existing policy. All such policies shall be for a period of not less
than one year and shall contain a provision whereby the same cannot
be canceled or modified unless Landlord and any additional insured
are given at least thirty (30) days prior written notice of such
cancellation or modification, including, without limitation, any
such cancellation resulting from the nonpayment of premiums.
Landlord shall have the right at any time and from time to time, but
not more frequently than once every year, to require Tenant to
increase the amount of the insurance maintained by Tenant under this
Article, so that the amount thereof, as reasonably determined by
Landlord, adequately protects the interest of Landlord.
C. Tenant shall secure an appropriate clause in, or an endorsement
upon, each insurance policy obtained by it and covering or
applicable to the demised premises or the personal property,
fixtures, and equipment located therein or thereon, pursuant to
which the insurance company waives subrogation or permits the
insured, prior to any loss, to agree with a third party to waive any
claim it might have against said third party without invalidating
the coverage under the insurance policy. The waiver of subrogation
or permission for waiver of any claim shall extend to Landlord and
its agents and their respective employees.
D. Tenant shall also obtain, at its own cost and expense, naming both
Landlord, Landlord's managing agent, any Superior Lessor, any
mortgagees designated by Landlord, and Tenant as additional insured,
fire insurance for all personal property which may be affixed to the
realty now located in the demised premises and including any future
installations.
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E. Notwithstanding anything herein to the contrary, nothing herein
shall prevent Landlord from recovering in the event of fire or other
loss under Landlord's fire or other insurance coverage for all
betterments and improvements by Tenant so affixed to the demised
premises as to be considered part of the realty under law.
F. Tenant hereby releases Landlord, Landlord's partners or principals,
disclosed or undisclosed, and its agents and their respective
employees in respect to any claim occurring during the term of this
Lease and normally covered under a fire insurance policy with
extended coverage endorsement in the form normally used in respect
to similar property in New York County. This Waiver shall include
any claim which Tenant might otherwise have against Landlord,
Landlord's partners or principals, disclosed or undisclosed, and its
agents and their employees for loss, damage or destruction with
respect to Tenant's property by fire or other casualty (including
rental value or business interest, as the case may be).
R9. EXCULPATORY CLAUSE.
Tenant shall look only to Landlord's estate and property in the Building for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default or breach by Landlord hereunder. Tenant agrees that no other property or
assets of Landlord or its partners or principals, disclosed or undisclosed,
shall be subject to lien, levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the demised premises. Furthermore, Tenant agrees that if Tenant shall acquire a
lien on such other property or assets by judgment or otherwise, Tenant shall
promptly release such lien by executing and delivering to Landlord an instrument
to that effect prepared by Landlord or else be deemed in material default of
this Lease.
R10. WAIVER OF COUNTERCLAIM.
Tenant shall and hereby does waive its right and agrees not to interpose any
counterclaim or set off, of whatever nature or description, in any proceedings
or action which may be constituted by Landlord against Tenant to recover Base
Annual Rent, Additional Rent, other charges, or for damages, or in connection
with any matters or claims whatsoever arising out of or in any way connected
with this Lease, or any renewal, extension, holdover, or modification thereof,
the relationship of Landlord and Tenant, or Tenant's use or occupancy of the
demised premises. This Clause, as well as the "waiver of jury trial" provision
of this Lease, shall survive the expiration, early termination, or cancellation
of this Lease or the term thereof. Nothing herein contained, however, shall be
construed as a waiver of Tenant's right to commence a separate action on a
bonafide claim against Landlord.
R11. DESIGNATION OF ARREARS.
If Tenant is in arrears in payment of Base Annual Rent or Additional Rent
(altogether called the "Rent"), Tenant waives Tenant's rights, if any, to
designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items Landlord sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items against which any such payments
shall be credited.
R12. DIRECTORY LISTINGS.
If, at the request of and as an accommodation to Tenant, Landlord shall place
upon such directory board, as Landlord may from time to time maintain in the
lobby of the Building, one or more names or persons, firms or corporations other
than Tenant, this shall not be deemed to operate as an
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attornment or as a consent by Landlord to an assignment or sublet by Tenant of
all or any portion of the demised premises to such persons, firms or
corporations.
Landlord reserves the right at all times to limit the number of listings which
Tenant can have on the building directory.
R13. ESTOPPEL CERTIFICATE.
Supplementing Article 7.
A. If, in connection with obtaining financing for the Building, a bank,
insurance company or other lending institution shall request
reasonable modifications to this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay, or defer
its consent thereto, provided that such modifications do not
increase the obligations of Tenant hereunder or materially and
adversely affect the leasehold interest hereby created.
B. Tenant agrees, at any time and from time to time, as requested by
Landlord, upon not less than ten (10) days prior notice, to execute
and deliver a statement certifying the following:
1. That this Lease is unmodified and in full force and effect (or
if there have been modifications that the same is in full
force as modified and stating the modifications);
2. Certifying the dates to which the Base Annual Rent and
Additional Rent have been paid;
3. Stating whether or not, to the best knowledge of Tenant, any
party has defaulted under the Lease;
4. And, if a party has defaulted under the Lease, specifying each
such default, stating whether or not to the best of knowledge
of Tenant any event has occurred which with the giving of
notice or passage of time, or both, would constitute such a
default, and if so, specifying each such event, it being
intended that any such statement delivered pursuant thereto
shall be deemed a representation and warranty to be relied
upon by Landlord and by others with whom Landlord may be
dealing, regardless of independent investigation.
R14. ASSIGNMENT AND SUBLETTING.
Supplementing Article 11.
A. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, or mortgage or
otherwise encumber, all or any part of its interest in this Lease,
sublet the demised premises, in whole or in part, or suffer or
permit the demised premises or any part thereof to be used by other,
without the prior written consent of Landlord in each instance.
B. If Tenant shall desire to assign its interest in this Lease or to
sublet all or any portion of the demised premises, Tenant shall
submit to Landlord a written request for Landlord's consent to such
assignment or subletting, which request shall be accompanied by the
following information: (i) the name and address of the proposed
assignee or subtenant; (ii) If Tenant desires to sublet a portion of
the demised premises, a description of the portion to be sublet,
together with a floor plan thereof; (iii) the terms and conditions
of the proposed assignment or sublet; (iv) the nature
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and character of the business of the proposed assignee or subtenant
and its proposed use of the demised premises; and (v) current
financial information and any other information Landlord may
reasonably request with respect to the proposed assignee or
subtenant.
By notice given to Tenant within thirty (30) days after receipt of
Tenant's request for consent to either sublet the entire demised
premises or to assign the Lease, Landlord may terminate this Lease
on a date to be specified in said Notice (the "Termination Date"),
which date shall be not earlier than one (1) day before the
effective date of the proposed assignment or sublet nor later than
sixty-one (61) days after said effective date. Tenant shall vacate
and surrender the demised premises on or before the Termination Date
as if it were the lease expiration date (the "Lease Expiration
Date").
However, if Tenant proposes to sublet any portion of the demised
premises, Landlord, by notice given to Tenant within thirty (30)
days after receipt of Tenant's request for consent thereto, may
elect to eliminate such portion of the of the demised premises (said
portion hereinafter called the "Eliminated Space") from the demised
premises during the period (hereinafter called the "Elimination
Period") commencing on the date (hereinafter called the "Elimination
Date") immediately prior to the proposed commencement date of the
term of the proposed sublet, and ending on the proposed expiration
date of the term of the proposed sublet (the "Sublet Expiration
Date"). In the event that Landlord gives notice to Tenant that it
elects to eliminate said portion then:
1. The Eliminated Space shall be eliminated from the demised
premises during the Elimination Period;
2. Tenant shall surrender the Eliminated Space to Landlord on or
prior to the Elimination Date in the same manner as if said
Date were the Lease Expiration Date;
3. If the Eliminated Space shall constitute less than an entire
floor, Landlord shall, at Landlord's sole cost and expense,
have the right to (i) make any alterations and installations
in the demised premises required, in Landlord's sole and
reasonable judgement, to make the Eliminated Space a
self-contained rental unit with access through corridors to
the elevators and core toilets serving the Eliminated Space,
(ii) if the demised premises shall contain any core toilets or
any corridors (including any corridors proposed to be
constructed by Landlord pursuant to this Subparagraph 2(3)),
provide access from the Eliminated Space to the core area,
(iii) provide any tenant or other occupant of the Eliminated
Space shall have the right to use such toilets in the
corridors in common with Tenant and any other permitted
occupants of the demised premises, and (iv) the right to
install signs and directional indicators in or about such
corridors indicating the name and location of such tenant or
other occupant;
4. During the Elimination Period, the Base Annual Rent shall be
reduced in the proportion to which the area of the Eliminated
Space bears to the total area of the demised premises
immediately prior to the Elimination Date (including an
equitable portion of the area of any corridors referred to in
subparagraph B(3) of this Article as part of the area of the
Eliminated Space for the purpose of computing such reduction),
Tenant's percentage shall be reduced proportionately, and any
prepaid portion of Base Annual Rent and Additional
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Rent for any period after the Elimination Date allocable to
the Eliminated Space shall be refunded by Landlord to Tenant;
5. There shall be an equitable apportionment of any Additional
Rent payable hereunder for any Tax Year in which said
Elimination Date shall occur;
6. If the Elimination Period shall end prior to the Lease
Expiration Date, the Eliminated Space, in its then existing
condition, shall be deemed restored to and once again become a
part of the demised premises during the period (hereinafter
called the "Restoration Period") commencing on the date
immediately following the expiration of the Elimination Period
and ending on the Lease Expiration Date (except if Landlord is
unable to give Tenant possession of the Eliminated Space at
the expiration of the Elimination Period by reason of the
holding over or retention of possession of any tenant or any
other occupant, then, in that case, (i) the Restoration Period
shall not commence, and the Eliminated Space shall not be
deemed restored to the demised premises, until the date upon
which Landlord shall give Tenant possession of such Eliminated
Space free of all occupancies, (ii) neither the Lease
Expiration Date nor the validity of this Lease shall be
affected, and (iii) Tenant waives any rights under Section
223-a of the Real Property Law of New York, or any successor
statute of similar import, to rescind this Lease and Tenant
further waives the right to recover any damages which may
result from the failure of Landlord to deliver possession of
the Eliminated Space to Tenant at the end of the Elimination
Period);
7. During the Restoration Period, if any, the Base Annual Rent
shall be increased in the proportion to which the area of the
Eliminated Space bears to the total area of the demised
premises immediately prior to the commencement of the
Restoration Period (including an equitable portion of the area
of any corridors referred to in subparagraph B(3) of this
Article as part of the area of the Eliminated Space for the
purpose of computing such increase) and Tenant's Percentage
shall be increased proportionately; and
8. There shall be an equitable apportionment of any Additional
Rent payable hereunder for any Tax Year in which the
Restoration Period, if any, shall commence. At the request of
Landlord, Tenant shall execute and deliver an instrument(s),
in a form satisfactory to Landlord, setting forth any
modifications to this Lease contemplated in or resulting from
the operation of the foregoing provision of this subsection;
(however, neither Landlord's failure to request any such
instrument nor Tenant's failure to execute or deliver any such
instrument shall vitiate the effect of the forgoing provisions
of this subsection B).
C. If Landlord shall not exercise its option to terminate this Lease or
eliminate the Eliminated Space from the demised premises pursuant to
subsection B above, then Landlord shall not unreasonably withhold
its consent to the proposed assignment or sublet for the use
permitted in this Lease, provided that:
1. The demised premises shall not, without Landlord's prior
consent, have been listed or otherwise publicly advertised for
assignment or sublet at a rental rate lower than the higher
of (a) the Base Annual Rent and all Additional Rent then
payable, or (b) the then prevailing rental rate for other
space in the Building, and Tenant shall not enter into any
sublease at a lower rental rate than the Base Annual Rent and
all Additional Rent then payable;
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2. Tenant shall not then be in default hereunder beyond the
expiration of any applicable grace period;
3. The proposed assignee or subtenant shall have a financial
standing, be of a character, be engaged in a business, and
propose to use the demised premises in a manner consistent
with the permitted use(s) and in keeping with the standards of
the Building;
4. The proposed assignee or subtenant shall not then be a tenant,
subtenant or assignee of any space in the Building, nor shall
the proposed assignee or subtenant be a person or entity with
whom Landlord is then negotiating to lease space;
5. The character of the business to be conducted in the demised
premises by the proposed assignee or subtenant shall not
substantially increase operating expenses or building energy
costs or the burden on existing cleaning services or elevators
in the Building.
6. In case of a sublet, the subtenant shall be expressly subject
to all of the obligations of Tenant under this Lease and the
further condition and restriction that such sublease shall not
be assigned, encumbered or otherwise transferred or the
demised premises further sublet by the subtenant in whole or
in part, or any part thereof suffered or permitted by the
subtenant to be used or occupied by others, without the prior
written consent of Landlord in each instance.
7. No subletting shall end later than one (1) day before the
Lease Expiration Date nor shall any sublet be for a term of
less than two (2) years unless it commences less than two (2)
years before the Lease Expiration Date.
8. At no time shall there be more than two occupants, including
Tenant, in the demised premises.
9. Any portion of the demised premises proposed to be sublet
shall not comprise less than twenty five (25%) percent
contiguous square feet of area and shall be of a shape or
configuration such that both the area proposed to be sublet
and the remainder of the demised premises shall in Landlord's
judgment constitute commercially marketable separate rental
units.
10. Tenant shall reimburse Landlord on demand for any costs,
including attorney's fees and disbursements, that may be
incurred by Landlord in connection with said assignment or
sublease.
D. Every sublet hereunder is subject to the express condition, and by
accepting a sublease hereunder and each subtenant shall be
conclusively deemed to have agreed, that if this Lease should be
terminated prior to the Lease Expiration Date or if Landlord should
succeed to Tenant's estate in the demised premises, then at
Landlord's election such subtenant shall either surrender the
demised premises to Landlord within sixty (60) days of Landlord's
request therefor, or shall attorn to and recognize Landlord as such
subtenant's Landlord under such sublease, and such subtenant shall
promptly execute and deliver any instrument Landlord may reasonably
request to evidence such attornment.
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E. Tenant shall deliver to Landlord a copy of each sublease or
assignment made hereunder within ten (10) days after the date of its
execution. Tenant shall remain fully liable for the performance of
all of Tenant's obligations hereunder notwithstanding any sublet or
assignment and, without limiting the generality of the foregoing,
shall remain fully responsible and liable to Landlord for all acts
and/or omissions of any subtenant, assignee or anyone claiming by,
through or under any subtenant or assignee which shall be in
violation of any of the obligations of this Lease, and any such
violation shall be deemed to be a violation by Tenant itself.
Notwithstanding any assignment and assumption by the assignee of the
obligations of Tenant hereunder, this Tenant, and each
successor-in-interest of this Tenant, shall remain liable jointly
and severally (as a primary obligor) with its assignee and all
subsequent assignees for the performance of Tenant's obligations
hereunder, and shall remain fully and directly responsible and
liable to Landlord for all acts and/or omissions on the part of any
assignee subsequent to it in violation of any of the obligations of
this Lease.
F. Notwithstanding anything to the contrary contained in this Lease, no
assignment of Tenant's interest in this Lease shall be binding upon
Landlord unless the assignee, (and, if the assignee is a
partnership, the individual partners thereof), shall execute and
deliver to Landlord an agreement, to be later described, in
recordable form. In such agreement, the assignee shall agree
unconditionally to be personally bound by and to perform all of the
obligations of Tenant hereunder and shall further expressly agree
that, notwithstanding such assignment, the provisions of this
Article shall continue to be binding upon such assignee with respect
to all future assignments and transfers.
G. If Tenant shall enter into any assignment, sublease or other
agreement of occupancy permitted under this Lease, of or affecting
all or any portion of the demised premises, or if there is any
transfer of this Lease by operation of law or otherwise, and if
Tenant shall receive any consideration from its assignee, subtenant
or licensee for or in connection with the assignment of Tenant's
interest in this Lease or the sublet or occupancy of all or any part
of the demised premises, as the case may be (including, but not
limited to, sums paid for the sale or rental of Tenant's leasehold
improvements, less, in the case of a sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns) or, if Tenant shall sublet or
otherwise permit occupancy of the demised premises at a rental rate
(including Additional Rent) or other periodic consideration which
shall exceed the Base Annual Rent and Additional Rent then payable
hereunder, then Tenant shall pay to Landlord, as Additional Rent
hereunder, one-half (1/2) of such consideration or such excess.
H. Any transfer, by operation of law or otherwise of the interest of
Tenant in this Lease (in whole or in part) or of a fifty (50%)
percent or greater interest in Tenant (whether stock, partnership
interest or otherwise) shall be deemed an assignment of this Lease
within the meaning of this Article. If there has been a previous
transfer of less than a fifty (50%) percent interest in Tenant, any
other transfer of an interest in Tenant which would then result in
an aggregate transfer of greater than fifty (50%) percent interest
in Tenant shall be deemed an assignment of the interest of Tenant in
this Lease within the meaning of this Article. Anything contained
herein to the contrary notwithstanding the provisions of this
section H shall not apply to the sale of shares by persons other
than those deemed "insiders" within the meaning of the Securities
Exchange Act of 1934, as amended, where such sale is effected
through any recognized exchange or through the "over-the-counter"
market, unless the same to be related to, result in or be the result
of any merger, consolidation, tender offer,
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takeover or other activity involving the acquisition of control of
Tenant by another unrelated corporation or legal entity. All
references to "Tenant" in this section H shall also be deemed to
refer to any immediate or remote subtenant or assignee of Tenant.
I. The consent of Landlord to an assignment or a subletting shall not
relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or sublet.
J. If Tenant's interest in this Lease be assigned, or if the demised
premises or any part thereof be sublet or occupied by anyone other
than Tenant, Landlord may collect Rent from the assignee, subtenant
or occupant and apply the net amount collected to the Base Annual
Rent and all Additional Rent herein reserved, but no such
assignment, sublet, occupancy or collection shall be deemed a waiver
of the provisions of this Article or of any default hereunder or the
acceptance of the assignee, subtenant or occupant as Tenant, or a
release of Tenant from the further observance or performance by
Tenant of all of the covenants, conditions, terms and provisions on
the part of Tenant to be performed or observed under this Lease.
K. Tenant shall notify such managing agent of its desire to assign this
Lease or sublet the premises. Upon obtaining a proposed assignee or
sublessee, Tenant shall submit to Landlord in writing (i) the name
of the proposed assignee or subtenant; (ii) the terms and conditions
of the proposed assignment or sublease; (iii) the nature or
character of the business of the proposed assignee or subtenant or
(iv) any other information reasonably requested by Landlord.
L. If there is a dispute between Landlord and Tenant as to the
reasonableness of Landlord's refusal to consent to any sublease or
assignment, such dispute shall be determined by arbitration in The
City of New York in accordance with the prevailing rules of the
American Arbitration Association, The arbitrators shall be bound by
the provisions of this Lease and shall not add to, subtract from or
otherwise modify such provisions. Notwithstanding any contrary
provisions hereof, Landlord shall not be liable to Tenant for a
breach of Landlord's covenant not unreasonably to withhold such
consent and Tenant's sole remedy in such event shall be to enter
into the proposed sublet or assignment.
R15. LATE FEES
In every case in which Tenant is required by the terms of this Lease to pay to
Landlord a sum of money (including, without limitation, payment of Base Annual
Rent and Additional Rent) and payment is not made within ten (10) days after the
same shall become due, Tenant shall pay as Additional Rent hereunder, a late
charge of seventy five ($75.00) dollars in addition to interest on such sum of
money or so much thereof as shall be unpaid from the date it becomes due until
it is paid. Such interest shall be computed at a rate which shall be one and
one-half (l.5%) percent per month; provided, however, in no event shall such
interest be in excess of the highest rate of interest which shall from time to
time be permitted under the laws of the State of New York to be charged on late
payments of sums of money due pursuant to the terms of a lease.
R16. TENANT HOLDOVER.
In the event that Tenant does not surrender all of the demised premises to
Landlord upon the expiration or other earlier termination of this Lease, Tenant
shall pay, as a use and occupation charge during such "hold-over period", a
monthly amount equal to the sum of two (2) times the Base Annual Rent being due
and payable during the last month of the term.
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Tenant agrees it shall indemnify and save Landlord harmless against all costs,
claims, loss or liability resulting from delay by Tenant in surrendering the
demised premises upon the expiration or earlier termination of this Lease,
including, without limitation, any claims made by any succeeding tenant founded
on such delay.
R17. LIMITING LAW.
If any law, decision, order, rule or regulation (collectively called "Limiting
Law") of any governmental authority shall have the effect of limiting, for any
period of time, the amount of Rent or other amounts payable by Tenant to
Landlord to any amount less than the amount required by the Lease, then:
A. Throughout the period of limitation, Tenant shall remain liable for
the maximum amount of Rent and other amounts which are legally
payable; and
B. When the period of limitation ends or the amount allowed under a
later Limiting Law is increased, or if the Limiting Law is repealed,
or following any order or ruling that substantially restrains or
prohibits the enforcement of the Limiting Law, then Tenant shall pay
to Landlord, in twelve (12) equal consecutive monthly installments
(to the extent that payment of such amounts is not prohibited by
law), all amounts that would have been due from Tenant to Landlord
during the period of limitation but which were not paid because of
the Limiting Law; and thereafter Tenant shall pay to Landlord Rent
and all other amounts due pursuant to this Lease, all calculated as
though there had been no intervening period of limitation.
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R18. TENANT DEFAULT.
Supplementing Article 17.
Any default by Tenant under any other lease of space in the Building shall be
deemed a default of the same nature under this Lease.
R19. BROKER.
Tenant represents to Landlord that no broker or other person other than
Bernstein Real Estate and Williamson, Picket, Gross, Inc. had any part or was
instrumental in any way in bringing about this Lease and Landlord alone shall
pay any commission or fee due to Bernstein Real Estate and Williamson, Picket,
Gross, Inc.. Tenant agrees to indemnify and hold Landlord harmless from and
against any claims made by any other broker or other person seeking a brokerage
commission, finder's fee, or similar compensation, by reason of or connection
with this Lease, and any loss, liability, costs and expense (including
reasonable attorney's fee) paid or incurred by Landlord in connection therewith,
if the same shall arise by, through or on account of any act of Tenant or
Tenant's agents, employees or representatives. Landlord represents that it knows
of no claims by any other brokers.
R20. UTILITIES.
A. Tenant acknowledges and agrees that no utilities or other services,
except as may be specifically provided herein, have been included in
Tenant's Rent and that Landlord shall have no obligation to furnish
or supply air conditioning, ventilation, or any other utility or
service to or for the demised premises or as may be required by
Tenant for its use and occupancy thereof
B. Except as otherwise provided in this Lease, all utilities and
services, other than heat (subject to the provisions of Section C of
this Article), required for the use and occupancy of the demised
premises shall be provided by Tenant, at its own cost and expense.
C. Supplementing the provisions of Section B above, provided that
Tenant is not in default under the terms of this Lease, Landlord
shall permit Tenant to obtain heat for Tenant's use in the demised
premises as, when and to the extent that same shall be furnished to
the other tenants of the Building from the Building's central
system. Tenant acknowledges and agrees that:
1. Tenant shall be entitled to receive such heat in the demised
premises only during such times and in such quantities as heat
is being furnished to the other tenants of the Building;
2. Landlord shall not be liable or responsible for the
distribution of heat within the demised premises; and
3. Landlord has made no representation as to the sufficiency,
adequacy or condition of the Building's central system heat
facilities or boiler or of the heat for Tenant's use and
occupancy of the demised premises.
D. Notwithstanding anything to the contrary contained within this
Lease, Landlord shall provide utilities in accordance with Article
31. In addition, Tenant shall have key access to the demised
premises twenty four (24) hours a day, seven (7) days a week.
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Tenant understands that a lobby attendant is not supplied at all
times during such access period.
R21. TENANT REPAIRS AND IMPROVEMENTS.
Supplementing Article 3.
Tenant understands and agrees that no changes in or to the demised premises, of
whatever nature, may be made without the prior written consent of Landlord.
R22. ARBITRATION.
Landlord may at any time request arbitration, and Tenant may at any time when
not in default in the payment of any Rent request arbitration, of any matter in
dispute, but only where arbitration is expressly provided for in this Lease such
as in R.14. The party requesting arbitration shall do so by giving written
notice to that effect to the other party, specifying in said notice the nature
of the dispute, and said dispute shall be determined in New York City, before a
panel of three arbitrators, in accordance with the rules of the American
Arbitration Association or its successor, then obtaining, and any proceeding
relating to such arbitration shall be brought in the Supreme Court of New York,
County of New York, and any judgment upon the award rendered by the arbitrators
may be entered in the same Court. The parties shall have the right to avail
themselves of disclosure in aid of arbitration hereunder. Such rules
notwithstanding, the arbitrators sitting in any arbitration arising hereunder
shall be bound by the laws of the State of New York and shall not have the
authority or power to modify or alter any express condition or provision of this
Lease, to declare any such condition or provision unconscionable or otherwise
inapplicable or unenforceable or to render an award which has the effect of
altering or modifying any express condition or provision hereof or deeming in
inapplicable or unenforceable for any reason whatsoever.
R23. INTENTIONALLY OMITTED.
R24. TENANT'S SQUARE FOOTAGE, PERCENTAGE AND SHARE.
The square footage, share, and percentage set forth in this Lease are
approximate only and the Landlord and Tenant hereby agree that same shall not be
deemed a representation of Landlord. Furthermore, Landlord and Tenant agree that
any square footage, share or percentage has been determined solely for the
purposes of computing Tenant's contribution to escalation charges.
R25. LANDLORD'S APPROVAL.
If Tenant shall request Landlord's approval or consent and Landlord shall fail
or refuse to give such approval or consent, Tenant shall not be entitled to any
damages for any withholding or delay of such approval or consent by Landlord, it
being intended that Tenant's sole remedy shall be an action for injunction
without bond or specific performance (the rights to money damages or other
remedies being hereby specifically waived), and that such remedy shall be
available only in those cases where Landlord shall have expressly agreed in
writing not to unreasonably withhold its consent or approval or where as a
matter of law Landlord may not unreasonably withhold its consent or approval.
R26. PROHIBITED USES.
A. Tenant agrees that the value of the demised premises and the
reputation of the Landlord will be seriously injured if the premises
are used for any obscene or pornographic purposes or any sort of
commercial sex establishment. Tenant Agrees that tenant will not
bring or permit any obscene or pornographic material on the
premises, and shall not permit or conduct any obscene, nude, or
semi-nude live
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performances on the premises, nor permit use of the premises for
nude modeling, or as a so-called rubber goods shops, or as a sex
club of any sort, or as a "massage parlor." Tenant agrees further
that Tenant will not permit any of these uses by any sublessee or
assignee of the premises. This Article shall directly bind any
successors in interest to the Tenant. Tenant agrees that if at any
time Tenant violates any of the provisions of this Article, such
violation shall be deemed a breach of a substantial obligation of
the terms of this Lease and objectionable conduct. Pornographic
material is defined for purposes of this Article as any written or
pictorial matter with prurient appeal or any objects of instrument
that are primarily concerned with lewd or prurient sexual activity.
Obscene material is defined here as it is in Penal Law Section
235.00.
B. It is specifically understood and agreed that at no time shall the
demised premises be used for living, sleeping, or any other
residential purpose.
C. Notwithstanding anything in Article 2 or elsewhere in this Lease to
the contrary, Tenant shall not use or permit all or any part of the
demised premises to be used for the: (i) storage for purpose of sale
of any alcoholic beverage in the demised premises; (ii) storage for
retail sale of any product or material in the demised premises;
(iii) 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); (iv) 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; (v) conduct of the business of an employment agency or
executive search firm; (vi) conduct of any public auction,
gathering, meeting or exhibition; (vii) conduct of banking and
related financial business operations (except for a credit union
and/or benefit plans for Tenant's employees) or a stock brokerage
office or business, if such banking, financial or brokerage
operations result in the presence of the general public in the
demised premises.
D. 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 additional burden upon Landlord in its
operation.
E. 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 for any party not theretofore approved by the
Landlord (which party's charges shall not be excessive). Such
services shall be furnished only at such hours, in such places
within the demised premises and pursuant to such regulations as
Landlord prescribes.
R24. CONDITIONAL OFFER.
It is specifically understood and agreed that this Lease is offered to the
Tenant for signature by the Managing Agent of the building solely in its
capacity as such Agent and subject to the Landlord's acceptance and approval and
that the Tenant has hereunto affixed its signature with the understanding that
the said Lease shall not in any way bind the Landlord or its Agent until such
time as the Landlord has approved said Lease and same is fully-executed and
delivered to Tenant by an authorized agent of Landlord.
R27 ADDITIONAL RENT.
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Notwithstanding anything to the contrary contained in this Lease, any monies due
Landlord other than the Base Annual Rent are deemed to be additional rent
("Additional Rent"), and any default in the payment of Additional Rent shall
give to Landlord the same remedies as it has with respect to a default in the
payment of Base Annual Rent.
R28. RENT CONCESSION.
Anything contained herein to the contrary notwithstanding, Tenant may occupy the
demised premises Base Annual Rent free for the period beginning September 1,
1997 through to and inclusive of February 28, 1998. During this period the
Tenant shall be responsible and shall pay for any and all Additional Rent
charges provided for within the Lease for which Tenant will be billed on a
monthly basis.
R29. SECURITY.
Supplementing Article 34.
If Landlord applies or retains any part of the security so deposited, Tenant,
within ten (10) days of Landlord's demand, shall pay to Landlord as Additional
Rent the amount so applied or retained so that Landlord shall have the full
deposit as stated in Article 31. at all times during the term of this Lease.
Failure to replenish the Security Account within ten (10) days shall be deemed a
material default under this Lease.
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R30. NOTICE.
All notices required under this Agreement shall be in writing and shall be sent
by Certified Mail, Return Receipt Requested to the address of party set forth
below. Notice shall be deemed given five (5) business days after said notice,
contained in a sealed properly addressed postage paid and certified envelope, is
deposited in any official depository for United States Mail. Any party hereto
may change the below set forth address to which notice addressed to said party
is to be thereafter sent, by sending notice of said new address to the other
party to this Lease. The addresses to which notices are to be sent (until said
addresses are changed as herein authorized) are:
LANDLORD: CLEMONS MANAGEMENT CORP.
c/o Bernstein Real Estate
855 Avenue of the Americas
New York, NY 10001
TENANT: At the Premises;
(see also Insert 24)
In lieu of sending notice by certified mail, notice may be delivered by hand to
the addressee at its address set forth herein (or at any new address as herein
provided), in which event such notice shall be deemed given on the next business
day following said actual delivery of said notice by hand.
R31. SIGNS.
A. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by 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 can be seen from the outside of
the demised premises, without the prior written consent of Landlord
in each instance. Tenant shall comply with all of the laws, orders,
rules and regulations of the governmental authorities having
jurisdiction thereof, including zoning laws, building codes and as
required by insurance underwriters. Tenant shall obtain and pay for
all permits required therefor. In the event of the violation of the
foregoing by Tenant and if Tenant has refused to remove same after
reasonable notice from Landlord, Landlord may remove same without
any liability to Tenant therefor, Landlord may charge the expense
incurred by such removal to Tenant as Additional Rent. In the event
that Tenant desires to make changes to their signage, Tenant must
give Landlord written request of its intent, including a description
of the alterations desired, such change is subject to the sole and
absolute discretion of Landlord. Should Landlord consent to such
change then the change shall be made by Landlord at Tenant's sole
cost and expense.
B. In the event Landlord or Landlord's representatives shall deem it
necessary to remove any sign or signs in order to paint or to make
any other repairs, alterations or improvements in or upon said
premises, or the Building wherein the same is situated, or any part
thereof, Landlord shall have the right to do so, provided the same
be removed and replaced promptly at the Landlord's expense.
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R32. HEALTH AND SAFETY.
As a material condition of this Lease Tenant, at its sole cost and expense,
covenants and agrees:
C. PEST CONTROL.
To employ an exterminator, as may be necessary, to keep the demised
premises free of insects and mice as necessary.
D. RUBBISH.
To provide private carting for the removal of, and promptly dispose
of all garbage, refuse, ashes and waste arising from the conduct of
its business in the demised premises in accordance with any and all
applicable municipal codes and regulations and in accordance with
any rules and regulations of the Building which, in the judgment of
Landlord, are necessary for the proper operation of the Building.
All garbage that is retained in the premises shall be kept in
covered receptacles. Any and all other reasonable safeguards that
may be necessary so as to prevent the accumulation of such garbage
or refuse from becoming a nuisance or interfering with the comfort
of the other occupants of the Building of which the demised premises
form a part shall be provided by Tenant at its own cost and expense.
F. FIRE CONTROL.
To furnish and install in the demised premises all fire fighting
equipment and all appurtenances thereto required by the government
authorities having jurisdiction of the demised premises which may be
required by the use of the demised premises.
D. DEMISED PREMISES.
To maintain or cause to be maintained the demised premises in a
clean and uncluttered, neat, sanitary and safe manner, and shall, at
Tenant's sole cost and expense, provide or cause to be provided all
maintenance supplies, materials and equipment necessary to maintain
the demised premises in such a manner. Tenant further agrees, at its
sole cost and expense, to keep the floors of the demised premises in
a clean and condition.
E. ODORS.
At all times to operate its business in the demised premises in such
a manner so that no offensive odors shall be permitted to emanate
therefrom or to be produces beyond the walls of the demised
premises. For that purpose, Tenant will, at its sole cost and
expense, install, utilize, maintain and replace, where necessary, an
adequate ventilation system in the demised premises and any other
equipment suitable to keep the Building, including the hallways,
lobbies, other common areas, and the adjacent sidewalk, if
applicable, free from offensive odors and fumes.
R33. NOISE.
Tenant's right of QUIET ENJOYMENT as set forth in Article 23 of this Lease is
modified as follows:
Tenant or Tenant's successor-in-interest shall not create any noise levels
which shall interfere with the quiet enjoyment of any tenants occupying
other portions of the Building of which
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Landlord Tenant
18
the demised premises are a part, nor of the neighbors of the Building.
Tenant agrees to promptly notify Landlord in writing of all noise
complaints or summons's which it receives in writing, and to submit a
proposal reasonably satisfactory to Landlord as to how to handle same and
assure that such complaints shall not recur. In the event that any legal
action is brought against Landlord by any municipal authority having
jurisdiction, arising out of noise emanating from the demised premises
Tenant shall pay Landlord, as Additional Rent, all of the attorney's fees
and disbursements incurred by Landlord in defending such an action.
R34. MISCELLANEOUS.
F. Tenant covenants and agrees that it shall not permit any loitering
by its agents, servants or employees on the sidewalk or street in
front of the demised premises.
G. Supplementing the provisions of Article 17. hereof, if, at any time
during the term hereof, Tenant suspends or otherwise discontinues
operation of its business at the demised premises for a period of
thirty (30) consecutive days as a result of Tenant's acts, Landlord
may, in its sole discretion, treat same as a default on the part of
Tenant of Tenant's obligations hereunder and Landlord shall be
entitled to exercise the rights set forth in said Article 17. All of
the remaining terms and provisions of Article 17. hereof shall
remain unchanged.
R35. TENANTS ALTERATIONS.
H. Tenant covenants and agrees that it shall make only non-structural
alterations to the demised premises ("Tenant's Alterations"). Tenant
acknowledges and agrees that Landlord shall have no obligation to
perform any work or make installations in the demised premises and
that Tenant has fully inspected the demised premises and accepts the
demised premises in its "as is" and "where is" condition.
I. Tenant covenants and agrees that all material, work, labor, fixtures
and installations required for completion of the demised premises
and the continuous operation of Tenant's business thereat
(collectively "Tenant's Alterations") shall be promptly performed
and provided by Tenant, at Tenant's own cost and expense. Tenant's
Alterations shall comply with all rules and regulations of
governmental authorities having jurisdiction thereover and Tenant
shall, at its own cost and expense, promptly procure all necessary
and required permits, approvals and licenses in connection with
Tenant's Alterations and the operation of Tenant' business.
J. Plans and specifications for the demised premises and Tenant's
installations therein (collectively "Tenant's Plans") shall be
prepared by Tenant, at Tenant's own cost and expense, and all
Tenant's Plans shall be subject to the prior written approval of
Landlord and submitted to Bernstein Real Estate or Landlord's then
managing agent. Tenant shall submit Tenant's Plans to Landlord for
such approval such approval not to be unreasonably withheld or
delayed. Landlord's approval of Tenant's Plans shall not be deemed a
representation or warranty of any kind to the effect that Tenant's
Plans satisfy the requirements or standards of any governmental
authority having jurisdiction thereover.
K. Within ten (10) days following Landlord's advice to Tenant that
Tenant's Plans have been approved by Landlord, Tenant shall notify
Landlord in writing of the names of the contractors who are to
perform the Tenant's Alterations in the demised premises
(individually or collectively "Tenant's Contractor"), and shall
thereafter promptly furnish Landlord with such other information
relating to Tenant's alterations as landlord may require. Tenant
acknowledges that it shall not be permitted to
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Landlord Tenant
19
commence Tenant's Alterations unless and until Tenant's Contractor
shall have complied with Landlord's insurance requirements. Tenant
agrees that, within twenty (20) days following Landlord's advice to
Tenant that Tenant's Plans have been approved by Landlord, Tenant
shall cause Tenant's Contractor to (i) comply with said insurance
requirements, and (ii) commence performing Tenant's Alterations,
which shall be diligently pursued to completion.
L. 1. As a precondition to Tenant being permitted to perform any
Tenant's Alterations, and throughout the entire period
Tenant's Alterations is being performed, it shall be the
obligation of Tenant to require Tenant's Contractor to carry
and maintain, at no expense to Landlord:
a) Comprehensive general liability insurance, including,
but not limited to, contractor's liability coverage,
contractual liability coverage, completed operations
coverage, broad form property damage endorsement and
contractor's protective liability coverage, to afford
protection with limits, for each occurrence, of not less
than $3,000,000 with respect to personal injury or
death, and $1,000,000 with respect to property damage;
and
b) Worker's compensation or similar insurance in form and
amounts required by law.
2. All policies of insurance required under Subsection E.1. of
this Article shall name Landlord and Managing Agent as
additional insureds, and certificates thereof shall be
delivered to Landlord c/o Bernstein Real Estate or its then
managing agent prior to the commencement of Tenant's
Alterations.
3. Tenant shall furnish Landlord a waiver of lien from each of
Tenant's Contractor (in the form set forth on Exhibit B
annexed hereto).
F. Tenant covenants and agrees that Tenant shall (i) indemnify Landlord
from, and hold Landlord harmless against, all claims, actions,
proceedings, suits of any nature whatsoever including, but not
limited to, property damage and/or personal injury and/or wrongful
death, resulting from Tenant's Alterations at the demised premises
and (ii) satisfy and pay any violations, summons, fines, notices,
orders imposed against the Landlord, the demised premises and/or the
Building by any governmental authority having jurisdiction
thereover, resulting from Tenant's Alterations at the demised
premises.
G. Except with respect to the time periods set forth in Sections C and
D of this Article, all of the remaining provisions of Sections B, E,
F and G of this Article shall also apply to any and all alterations,
installations, additions or improvements with Tenant is permitted to
make in or to the demised premises pursuant to Article 3 hereof.
R36. INTENTIONALLY OMMITED.
R37. AIR CONDITIONING.
Prior to installing new or additional air conditioning unit or units in the
demised premises, the Tenant shall first obtain the written consent of the
Landlord or its Managing Agent. Tenant shall pay for all electrical current
consumed in the operation thereof. In the event such unit or units utilize
circulating water, it shall be equipped with an approved water conserving device
and in connection therewith, Tenant shall install and maintain in good working
order, at its own cost and expense, a
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Landlord Tenant
20
water meter which shall meter all make-up water used in such air conditioning
equipment and shall pay for such water as per meter reading and in addition
thereto, sewerage or any other charge, tax, or levy which now or hereafter is
imposed by the City of New York in connection with said use of water. Any charge
for electricity or water consumed as herein provided, shall be in addition to
any other such charges as may be specified elsewhere in this Lease and shall be
deemed to be additional rent and payable as such.
There now exists in the demised premises central air conditioning units and the
appurtenant duct work for the demised premises. Landlord shall deliver the
existing air conditioning unit in good working order at the start of this Lease.
In the event that it becomes necessary to repair any part of the air
conditioning unit during the term of this Lease, provided that said repair is
not due to Tenant's improper use or negligence, and Tenant undertakes said
repairs using Landlord's approved contractor, then upon Landlord's agent having
determined that such repair was necessary and has been properly completed,
Landlord shall reimburse Tenant for the amount that such repairs exceed one
thousand dollars ($1,000.00) in any given year excluding routine maintenance and
filters which is Tenant's sole responsibility and cost. Additionally, Tenant
shall contract with Landlord's air conditioning contractor for annual service.
The service contract must remain in full force and effect during the term of the
Lease.
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Landlord Tenant
21
Exhibit B
WAIVER OF LIEN
Dated:
STATE OF NEW YORK
BOROUGH OF MANHATTAN
KNOW ALL MEN BY THESE, PRESENT, that the Undersigned being duly authorized by
__________________ , for and in consideration of $ __________ representing the
accumulated amount paid to the Undersigned, receipt whereof is hereby
acknowledged does hereby WAIVE, RELEASE, and SURRENDER, any and all lien or
claim or right of lien, to the date of this Waiver, for labor, materials, and/or
services furnished upon the Premises situated in the Borough of Manhattan, State
of New York and as described below:
- ----------------------------
By:
------------------------
Subscribed and sworn to before me this ___ day of ____ My Commission expires
___________________
Notary Public ____________
Notary Public
[ILLEGIBLE] RE
INSERTS TO PRINTED FORM AND SUPPLEMENTAL RIDER PARAGRAPHS TO LEASE AGREEMENT,
DATED AS OF SEPTEMBER 15, 1997, BETWEEN CLEMONS MANAGEMENT CORP., AS OWNER, AND
THE STAR MEDIA NETWORK, INC., AS TENANT, COVERING PREMISES AT 29-33 WEST 36TH
STREET, NEW YORK NY
- --------------------------------------------------------------------------------
Inserts to Printed Form
1A. structural
1B. which consent shall not be unreasonably withheld or delayed.
1C. [Intentionally Omitted]
1D. which approval shall not be unreasonably withheld or delayed
2A. reasonably
2B. Notwithstanding anything to the contrary contained in this Article 3 or
elsewhere in this Lease, Tenant, shall be entitled to make non-structural
alterations of a decorative nature to the Premises, from time to time,
without Owner's consent, provided in each instance the cost thereof shall
not exceed $25,000.00, Landlord receives prior notice of Tenant's intent
and Tenant complies with Article 3 of this Lease.
3. [Intentionally Deleted]
4. Notwithstanding anything to the contrary contained in Articles 4, 20, 27,
31 or elsewhere in this Lease, if, as a result of (i) repairs,
alterations, additions or improvements made by or on behalf of Owner (not
required by compliance with any new law or regulation), (ii) the
interruption or stoppage of the plumbing, electric, heating,
air-conditioning, elevator or other systems serving the demised premises
(other than any interruption of stoppage because of inability to obtain
parts or similar reason beyond the reasonable control of Owner) Tenant
shall be completely unable to conduct business in the full demised
premises for more than five (5) consecutive business days, then and in
such event, the fixed rental and additional rental payable by Tenant under
this Lease shall be abated from and after the sixth (6th) day of such
interruption and until the date on which Tenant is able to conduct its
business in the demised premises. Owner agrees to make any repairs
required as quickly as possible under the circumstances and to use its
best efforts not to interfere with Tenant's business operations.
5. Notwithstanding anything to the contrary in Article 6, Article 30, or
elsewhere in this Lease, it is understood that Tenant shall not be
required to incur any expense in connection with any improvements,
repairs, additions, alterations or changes
(collectively, "changes") required to be made to the demised premises or
the building by reason of any departmental or governmental regulation,
order or law, including, but not limited to, installation of sprinkler
systems or other fire prevention or safety measures, and Owner shall be
solely responsible therefor, unless the same are required by reason of
Tenant's particular manner of use of the demised premises, provided,
however, that Tenant, at Tenant's expense, shall make any such changes
required by Tenant's alterations to the premises. Further notwithstanding
anything to the contrary contained hereinabove, Tenant will contribute up
to $1,000 in any lease year towards changes which would be the Owner's
responsibility hereunder.
6. or willful acts
7. , contractors,
8. Counsel selected by Tenant's insurer shall be deemed accept able to Owner.
Supplementing Article 8 and notwithstanding anything to the contrary
contained therein or elsewhere in this Lease, Owner shall not be relieved
from any liability to Tenant for, nor shall Tenant indemnify Owner
against, any injury to persons or property, or any loss or damage, arising
from the wilful misconduct or negligence of Owner, or its agents,
contractors or employees.
9A. fifteen (15)
9B. [Intentionally Deleted]
9C. Notwithstanding anything to the contrary contained within this Article 9
or elsewhere within this Lease, except if the damage to the demised
premises or building is due to Tenant's or Tenant's agents fault,
carelessness, wilful misconduct or negligence, Tenant may terminate this
Lease if Landlord, in its sole determination and within ninety days (90)
after such casualty, determines that the premises or building cannot be
repaired or replaced or rendered usable within one hundred and twenty
(120) days from Landlord's determination.
In addition, if the demised premises or the building are, in Landlord's
sole determination, substantially damaged during the last year of the
Lease and such damage is not due to Tenant's or Tenant's agents fault,
carelessness, wilful misconduct or negligence, Tenant may cancel the Lease
in accordance with this Paragraph.
However, notwithstanding anything to the contrary contained herein, in the
event that Landlord shall have comparable space ("Temporary Premises")
available, accessible and useable in the Building within thirty (30) days
of said casualty then Tenant shall occupy the Temporary Premises in
accordance with the same terms, conditions, and covenants of this Lease
until the demised premises are restored and may not cancel this Lease.
In order to terminate the Lease according to this Article, Tenant shall,
after Landlord's determination as provided above, give Landlord thirty
(30) days written notice (registered mail, return receipt requested) of
its intent to terminate.
10. Notwithstanding anything to the contrary contained in Article 11 hereof,
or elsewhere in this Lease, Owner hereby consents from time to time to the
subletting of all or portion of the demised premises, and the assignment
of this Lease (i) to a business entity fifty (50%) percent or more of the
outstanding interests in which are owned by Chase Capital Partners and/or
Fernando Espuelas or entities under common control, (ii) to a business
entity succeeding (by merger, consolidation or otherwise) to substantially
all of Tenant's business assets at the demised premises, and (iii) to a
business entity to which Tenant has sold substantially all of its business
assets at the demised premises, provided, in the case of an assignment of
this Lease, the assignee(s) agree, in writing, to observe the terms and
conditions of this Lease to be performed by Tenant. Such sublet/assignment
in (i) - (iii) are contingent upon Tenant's successor having an equal or
greater net worth that Tenant as of the date hereof. Any such subtenant
shall have the right to list its name on the door to the premises and on
the lobby, floor and elevator directories (if any). Without limiting the
foregoing, Owner agrees that no right to recapture all or a portion of the
demised premises as set forth in subdivision B of Article R14, or any
right to share in the rent or other consideration (however characterized
and whether or not in excess of the rent and additional rent payable
hereunder) received by Tenant from the assignee or sublessee, shall be
applicable with respect to the assignments and sublettings contemplated in
subdivisions (i) thru (iii) above. Tenant shall give written notice to
Owner of the name and address of the assignee or sublessee, as the case
may be, following any exercise of Tenant's rights herein. With respect to
any other proposed sublettings or assignments, Tenant shall have the right
to withdraw its notice of proposed assignment or subletting in the event
that Owner elects to exercise any of its rights pursuant to said Article
R14. The offering and/or sale or transfer of the stock of Tenant pursuant
to any private placement memorandum or in connection with and following
any public offering shall not be deemed an assignment of this Lease.
11. , unless arising from the negligence or willful misconduct of Owner, its
agents, employees or contractors.
12. after reasonable notice and during normal business hours
13. reasonably
14. and do not materially and adversely affect Tenant's business operation or
require the removal or relocation of any of Tenant' s improvements.
15. Notwithstanding the foregoing, except in event of emergency, as aforesaid,
Owner shall not enter the demised premises except during regular business
hours, upon reasonable notice to Tenant, accompanied by Tenant or its
representative.
Further supplementing Articles 4, 13, 18 and 20, and notwithstanding
anything to the contrary contained therein or elsewhere herein, Owner
agrees: (i) that in the exercise of its various rights under this Lease to
make repairs, improvements, replacements, etc., and/or to have access to
the demised premises, Owner agrees to make any repairs required as quickly
as possible under the circumstances and to use all reasonable efforts so
as not to interfere with the operation of Tenant's business, and Owner
shall promptly repair any damage to the demised premises arising
therefrom, and (ii) whenever it is provided in this Lease that Owner may
recover from Tenant (or be indemnified by Tenant as to) attorneys' fees,
costs and/or expenses, such fees, costs and expenses shall be reasonable
in amount.
16. [Intentionally Omitted]
17. seven (7) days notice
18. [Intentionally Omitted]
19. fifteen (15)
20. within seven (7) days after written notice from Owner
21. [Intentionally Omitted]
22. (except for the electrical, heating, and air-conditioning equipment and
systems which shall be in good working order on the date of delivery of
possession, and except as may otherwise be set forth herein),
23. [Intentionally Omitted)
24. two (2) business days after the date of mailing of the same in the manner
hereinabove required. A copy of any notice to Tenant shall be sent
simultaneously, by certified mail, return receipt requested, Tenant's
attorneys, Stern, Wiener & Levy, (Attention: Robert N. Pellegrino, Esq.),
at 950 Third Avenue, New York, New York 10022. Notices to Owner shall also
be deemed given two (2) business days after the date the same are mailed
in accordance with the following sentence.
25. [Intentionally Omitted]
26. shall not then be in default of this Lease (beyond any applicable grace
and notice period, if any)
27. [Intentionally Omitted]
28. and non-discriminatory
4
29. All rule and regulations shall be enforced against Tenant in a
non-discriminatory manner. In the event of any conflict between the terms
and conditions of any Rules and Regulations now or hereafter adopted by
Owner and any other provisions of this Lease, the other provisions of this
Lease shall control.
30. other than arising from the negligence or willful acts of Tenant, its
employees, agents, contractors, licensees and/or invitees.
31. Owner, from time to time, upon at least ten (10) days prior notice from
Tenant, shall execute, acknowledge and deliver such certificate to Tenant,
and/or to any such other person, firm or corporation as aforesaid.
----------
Supplemental Rider Paragraphs
1. Notwithstanding anything to the contrary contained in Paragraph R7, the term
"real estate taxes" shall not include any additional real estate taxes arising
from any enlargement of the demised premises or to the building of which the
demised premises forms a part, it being agreed that Tenant shall have the burden
of proving the existence of any increase attributable to any such enlargement.
2. Notwithstanding anything to the contrary contained in the Guaranty annexed
hereto or anywhere else in this Lease, one time during the term of this
Lease and provided that Tenant is not then in default of this Lease beyond
any grace or applicable cure period, if any, Owner agrees to release the
Guarantor from any further liability under the
Guaranty from and after the date on which Tenant elects to tender to
Landlord an additional three (3) months Base Annual Rent("Extra Security")
as security (based on the then current rental rate). In that event only,
Owner agrees to return to Tenant one month of the Extra Security in
September 2000 and one month of the Extra Security in September 2001 in
the form a rental credit. (ie. If Tenant tendered $21,000.00 of Extra
Security in accordance with this Paragraph, then in September 2000
Landlord would return $7,000.00 and in September 2001 Landlord would
return $7,000.00 with Landlord retaining the remaining $7,000.00 of Extra
Security as security.)
Guaranty
A. As an inducement to Clemons Management Corp. ("Landlord"), to enter
into an agreement of lease dated as of September 15, 1997 (the
"Lease") with The Star Media Network, Inc. ("Tenant") for the
premises located on the Entire Fifth Floor of the building known as
29--33 West 36th, New York, New York, (the "demised premises") the
undersigned hereby absolutely, unconditionally and irrevocably
guarantees to Landlord all Base Annual Rent and Additional Rent and
other charges payable by Tenant under the Lease (hereinafter
collectively referred to as "Accrued Rent"), up to the "Surrender
Date". The "Surrender Date" means the date that Tenant shall have
performed all of the following: (a) vacated and surrendered the
demised premises to Landlord (or its managing agent) free of all
subleases or licensees and in broom clean condition, and Tenant has
so notified Landlord or such agent in writing and (b) delivered the
keys to the doors to the demised premises to Landlord (or its
managing agent).
B. Guarantor shall not be liable under this Guaranty for any Base
Annual Rent, Additional Rent or other charges or payments accruing
under the Lease after the Surrender Date. Any security deposit under
the Lease shall not be credited against amounts payable by Tenant,
or by Guarantor under the terms of this Guaranty. The acceptance by
Landlord of payments under this Guaranty or the acceptance of a
surrender of the demised premises shall not be deemed a release or
waiver by Landlord of any obligation of the Tenant under the Lease,
and Tenant's obligations shall survive such acceptance and
surrender.
C Notwithstanding any payments made by Guarantor hereunder, the
Guarantor shall not be subrogated to any of the rights of Landlord
against Tenant for any payment, nor shall the Guarantor seek any
reimbursement from Tenant in respect of payments made by such
Guarantor hereunder until all of the amounts due or becoming due to
Landlord under the Lease have been paid.
D. This Guaranty is absolute and unconditional and is a guaranty of
payment and performance, not of collection. This Guaranty may be
enforced without the necessity of resorting to or exhausting any
other security or remedy, and without the necessity at any time of
having recourse to Tenant. The validity of this Guaranty shall not
be affected or impaired by reason of the assertion by Landlord
against Tenant of the rights or remedies reserved to Landlord under
the Lease. Guarantor agrees that this Guaranty shall remain in force
and effect as to
any assignment, transfer, renewal, modification or extension of the
Lease (excepting a public offering of the stock of Tenant or any
entity which wholly controls Tenant as provided herein in Paragraph
I below) whether or not Guarantor shall have received any notice of
or consented to such renewal, modification, extension, assignment or
transfer.
E. The granting of any extension of time or the forbearance or failure
of Landlord to insist upon strict performance or observance of any
of the terms of The Lease, or otherwise to exercise any right
therein contained, shall not be construed as a waiver as against
Tenant or Guarantor of any such term or right and the same shall
continue and remain in full force and effect. Receipt by Landlord of
Rent with knowledge of the breach of any provision of the Lease
shall not be deemed a waiver of such breach. The Guarantor waives
notice of any and all defaults by Tenant in the payment of Base
Annual Rent, Additional Rent, or other charges, and waives notice of
any and all defaults by Tenant in the performance of any of the
terms, of the Lease on Tenant's part to be performed.
F. Guarantor further agrees that if Tenant becomes insolvent or shall
be adjudicated a bankrupt or shall file for reorganization or
similar relief or if such petition is filed by creditors of Tenant,
under any present or future Federal or State law, Guarantor's
obligations hereunder may nevertheless be enforced against the
Guarantor. The termination of the Lease pursuant to the exercise of
any rights of a trustee or receiver in any of the foregoing
proceedings, shall not affect Guarantor's obligation hereunder or
create in Guarantor any setoff against such obligation. Neither
Guarantor's obligation under this Guaranty nor any remedy for
enforcement thereof, shall be impaired, modified or limited in any
manner whatsoever by any impairment, modification, waiver or
discharge resulting from the operation of any present or future
provision under the National Bankruptcy Act or any other statute or
decision of any court. Guarantor further agrees that its liability
under this Guaranty shall be primary and that in any right of action
which may accrue to Landlord under the Lease, Landlord may, at its
option, proceed against Guarantor or Tenant without having commenced
any action against or having obtained any judgment against Tenant or
Guarantor.
G. Guarantor will pay reasonable attorneys' fees, court costs and other
expenses incurred by Landlord in enforcing or attempting to enforce
this Guaranty.
H. This Guaranty is made and delivered in New York, New York and shall
be governed by, and construed and interpreted
in accordance with, the internal laws of the State of New York,
without regard to the conflicts of laws principles thereof.
Guarantor hereby waives any right to trial by jury in any action or
proceeding arising out of This Guaranty.
I. Notwithstanding anything to the contrary contained hereinabove,
Guarantor's liability hereunder shall extend only to the payment of
Base Annual Rent and Additional Rent as set forth in R7 and Article
30 of the Lease until the sooner of (i) the Surrender Date or (ii)
the date on which Tenant deposits additional security in strict
accordance with Supplemental Rider Paragraph 2, or (iii) the date on
which a public offering of the stock of Tenant or an entity which
wholly controls Tenant is registered for a public offering and such
public offering commences.
J. All terms and provisions herein shall inure to the benefit of the
assigns and successors of Landlord and shall be binding upon the
assigns and successors of Guarantor.
IN WITNESS WHEREOF, the Guarantors have signed this Guaranty on the _______ day
of
[ILLEGIBLE]
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Guarantor
SS#: 044729976
On the 16th day of September 1997 before me personally came to me known and
known to me to be the individual described in, and who executed the foregoing
guaranty, and he duly acknowledged to me that he executed the same.
/s/ Donna A. Morales
---------------------
DONNA A. MORALES
Notary Public, State of New York
No. 01M05062926
Qualified in Kings County
Commission Expires July 8, 1998
AMENDMENT TO LEASE
This Agreement made as of the April 8, 1998, between Clemons Management Corp.
c/o Bernstein Real Estate, 855 Avenue of the Americas, New York, NY 10001,
("Landlord"), and Star Media Network, Inc., having offices at 29-33 West 36th
Street, New York, NY, ("Tenant").
WITNESSETH
WHEREAS, by Lease dated September 15, 1997 Landlord leased to Tenant, the Entire
Fifth (5th) Floor ("demised premises") as presently occupied by Tenant in the
building known as 29-33 West 36th Street, New York, NY, for a term of five (5)
years beginning 9/01/97 and ending on 08/31/02 (as modified hereby, altogether
the "Lease"); and
WHEREAS, Tenant presently occupies the demised premises and is now the owner and
holder of the aforesaid Lease, and
WHEREAS, Landlord, and Tenant are desirous of modifying the Lease:
NOW, THEREFORE, in consideration of the mutual covenants herein contained, ten
dollars ($10.00) (the receipt and sufficiency of which is hereby acknowledged)
and other good and valuable consideration, it is agreed between the parties that
the Lease shall be amended as follows:
1. Demised Premises: Effective as of the date first set forth above, the
demised premises shall also include the Entire 3rd Floor ("Additional
Space") of the Building. Landlord shall deliver possession of the
Additional Space in "as is" condition upon the execution of this
Agreement.
2. Rent: Supplementing R5. of the Lease and effective 5/1/98, the
Base Annual Rent for the Additional Space shall be as follows:
$84,504.00 from 5/1/98 to 4/30/99 ($7,042.00 per month)
$87,458.00 from 5/1/99 to 4/30/00 ($7,288.25 per month)
$90,519.00 from 5/1/00 to 4/30/01 ($7,543.25 per month)
$93,687.00 from 5/1/01 to 4/30/02 ($7,807.25 per month)
$96,966.00 from 5/1/02 to 4/30/03 ($8,080.50 per month)
The term for the Additional Space shall end on 8/31/02, if not earlier
terminated by operation of law, in accordance with the Lease or otherwise.
3. Real Estate Taxes: Supplementing Article R7(A) and R7(D) of the Lease and
effective 5/1/98, Tenant shall pay eight point three three percent (8.33%)
as Additional Rent for the Additional Space. Supplementing R7(C) of the
Lease and effective 5/1/98, Tenant's Base Tax Year for the Additional
Space only shall be 1998/1999.
4. Security Deposit: Supplementing Article 32 of the Lease and upon the
execution of this Agreement, Tenant shall deposit with Landlord fourteen
thousand eighty three dollars and thirty four cents ($14,083.34) as
security for the Additional Space so that Landlord shall now hold a total
of twenty eight thousand one hundred sixty six dollars and sixty eight
cents ($28,166.68) as security under the Lease.
5. Loan and Default:
A.
(i) As a material inducement to Landlord to enter into this
Amendment to the Lease, Tenant has agreed to spend not less
than eighty thousand dollars ($80,000.00) in making certain
leasehold improvements (collectively the "Improvements") to
the demised premises, which Improvements are more specifically
described in Exhibit A attached hereto and made a part hereof
and which shall be made in accordance with the Lease,
including but not limited to Article 3, 6 and R35 thereof.
(ii) In connection with the Improvements, Landlord has agreed to
make, and Tenant has agreed to accept, a loan (the "Loan")
from Landlord in the principal sum of eighty thousand dollars
($80,000.00) to be paid out in accordance with Paragraph B
below (the "Note") and as evidenced by a certain Promissory
Note of an even date herewith (see Exhibit B1 attached hereto
and made a part hereof). Tenant hereby specifically
acknowledges and agrees that the Note and this Lease are
hereby cross-defaulted so that any default under the Note
shall constitute a default under this Lease and any default
under this Lease shall constitute a default under the Note
entitling Landlord, in its capacity as Landlord under this
Lease or a Holder under the Note, in either event without
limitation, to exercise such rights and remedies as set forth
in this Lease and the Note and/or which may be available to
Landlord at law or in equity.
(iii) Upon execution of this Agreement, Tenant shall deposit with
Landlord a sum of fifteen thousand dollars ($15,000.00) as
security for the Loan either in the form of a clear,
irrevocable, self-renewing sight draft or an "evergreen"
letter of credit substantially in the form of exhibit C
annexed hereto and made a part hereof ("Letter of Credit").
Said Letter of Credit shall be issued by any commercial bank
in the State and City of New York ("Issuing Bank") and shall
be capable of being presented for payment in the City of New
York. Payment under the Letter of Credit shall be made to
Landlord upon Landlord's written notice to the Issuing Bank of
Tenant's default under the Lease and/or the Note. Provided
that Tenant is not in default of all the terms, conditions and
covenants of this Lease at the time Tenant repays the Note as
set forth in this Article said $15,000.00 shall be returned to
Tenant.
B. (i) All sums advanced pursuant to the Note shall be deemed
advances of the Loan and shall be advanced by Landlord to
Tenant, from time-to-time, at Landlord's option, whether to
Tenant or directly to the General Contractor or to any other
contractor(s) or subcontractor(s) against the requisitions by
Tenant for payment for work ("Work") completed by the
respective General Contractor, contractor(s) and/or
subcontractor(s). Each advance by
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Landlord Tenant
Landlord shall be subject to receipt by Landlord of the
following:
(a) Approval by Landlord of the contractor and/or
subcontractors;
(b) Verifiable invoices for the Work;
(c) Certification signed by an authorized officer of Tenant
stating that (1) the Work has been completed in
accordance with Exhibit A; (2) the amount of the invoice
is consistent with Tenant's construction contract with
the contractor and/or subcontractor submitting the
invoice; and (3) that is was completed to Tenant's
satisfaction;
(d) Certification by Tenant architect that the Work has been
completed accordance with Exhibit A;
(ii) Payment for Work completed is hereby made expressly contingent
upon delivery by Tenant to Landlord of a Partial Lien Waiver
in the amount of the payment and a Final Lien Waiver and
General Release upon completion of the Work (or the
Improvement, as the case may be). Each Partial Lien Waiver,
Final Lien Waiver and General Release to be executed in
recordable form by the respective General Contractor,
contractor(s) and subcontractor(s). The form of the Partial
Lien Waiver and the Final Lien Waiver and General Release
shall be substantially in the form of Exhibit B annexed hereto
and made a part hereof. Neither Landlord or Tenant shall
deliver payment for the Work without delivery to Landlord of
the appropriate Partial Lien Waiver, Final Lien Waiver or
General Release. The failure by Tenant to furnish Landlord
with the aforesaid Waiver's or General Release shall be deemed
a material default under this Lease.*
*Shall be in form reasonably acceptable to Landlord's
attorney.
6. Landlord's Work: Adding Article R38 to the Lease and pertaining solely to
the Additional Space,
1. Demolition as per Tenant's Plans (see attached Exhibit A);
2. Upgrade restrooms to make similar to restrooms on 5th Floor of the
Building;
3. Deliver 200 amp 3 phase electrical service to the panel box located
on the 3rd Floor;
4. Patch ceiling, columns, beams and walls (including the closing of
the easterly wall window openings);
5. Deliver and install one fifteen (15) ton air-cooled air conditioning
unit. Tenant shall provide duct work and maintain and repair both
unit and ducts throughout term of Lease;
6. Patch and repair floor to make ready for carpet;
7. Repair and seal rear windows, as needed; and
8. Reverse direction of nine (9) sprinkler heads.
9. Paint shell as needed
Landlord's Work, as described above, shall be a one-time, non-recurring
obligation of Landlord.
7. Guaranty: Supplementing the Guaranty attached to the Lease for the demised
premises,
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Landlord Tenant
dated 9/15/97 and signed by Fernando Espoulas, individually, effective
5/1/98, the Guaranty shall also include the Additional Space.
8. Water Charges: Supplementing Article 29 of the Lease and effective 5/1/98,
Tenant shall pay an additional twenty five ($25.00) as water charges for
the Additional Space.
9. Option to Expand, Adding Article R39 to the Lease:
As of the date of this Amendment and for the purposes of this Article
Olivieri Footwear, Inc. ("Olivieri") is the current tenant-in-possession
of 6th and 12th Floors under a lease dated 12/22/95 and as amended on
7/30/97 ("Documents"). Under such Documents, Tenant understands that
Olivieri has the right to elect to cancel its possession of either the 6th
or 12th Floor ("Canceled Space") on or about 7/31/98, Olivieri's notice to
be given to Landlord on or about 4/30/98. Landlord and Tenant agree that,
in the event that Olivieri properly exercises its right to cancel either
the 6th or the 12th Floor then Landlord shall give Tenant notice of such
cancellation ("Cancellation Notice"). Provided that (i) Tenant is not in
default of any of the terms, covenants or conditions of the Lease, (ii)
this Lease shall not have been terminated or transferred and (iii) Tenant
is in possession of the demised premises (iv) Tenant is not is bankruptcy,
then in that event only Tenant shall have the one-time option to expand
the demised premises by entering into a lease for the Canceled Space
("Option"). The Option for such Canceled Space, if any, shall remain open
for a period of fourteen (14) days only beginning on the day that Landlord
or its agent gives Cancellation Notice to Tenant. Tenant must enter into a
lease amendment expanding the demised premises within fourteen (14) days
after Landlord supplies Tenant with the pertinent lease amendment
document.
In the event that Tenant properly exercises its Option to Expand under
this Article, if any, and Landlord and Tenant enter into a lease amendment
addition the Canceled Space to the demised premises then the Base Annual
Rent shall be increased by $13.00 per square foot multiplied by the square
footage of such Canceled Space. Additionally, Tenant's proportionate share
for Real Estate Taxes under R5 of the Lease shall be increased by an
additional 8.33% effective as of the date which is the first day of such
lease amendment. The Base Tax Year for the Canceled Space shall be
1998/1999. Landlord agrees that, in the event of such a lease amendment,
it shall demolish the Canceled Space and complete the same work as set
forth in Article R38 hereof to the Canceled Space except that Landlord
shall not be required to install a new air conditioning unit in the
Canceled Space if an air conditioning unit is serving the Canceled Space
and is in good working order, in Landlord's sole and unreviewable
judgment. Rent shall commence five (5) days after Landlord substantially
completes the work set forth above to the Canceled Space and delivers
possession thereof to Tenant.
10. Option to Renew, Adding Article R40 to the Lease:
A. Provided that (i) Tenant is not in default of any of the terms,
conditions or covenant of this Lease, (ii) that this Lease shall not
have been terminated or transferred (iii)
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Landlord Tenant
that Tenant is still in possession of the entire demised premises (plus
additional space, if any, added under Article R39 above), (iv) that Tenant
is not in bankruptcy, and (v) that Tenant gave to Landlord written notice
of its intent to renew under this Article at least six (6) months prior to
the Lease Expiration Date, then in that event only, Landlord and Tenant
shall enter into a written lease amendment to extend the term of this
Lease for a term of five (5) years only ("Renewal Period") on the same
terms and conditions as are contained in this Lease except that the Base
Annual Rent for the Renewal Period shall be at Fair Market Value, as
determined below. However, in no event shall the Base Annual Rent for the
Renewal Period be lower than the combined Base Annual Rent and Additional
Rent due at the end of the term of this Amendment.
B. For the purposes of this Article only, the fair market value ("Fair Market
Value" or "FMV") of the demised premises for the Renewal Period shall be
determined in the following manner:
1. Landlord and Tenant shall seek to agree as to the fair market rental
value of the demised premises by taking into consideration the fair
market rental value of untenanted space of a similar size and in
similar condition in comparable Manhattan office buildings,
including this Building, for a comparable term.
2. In the event that Landlord and Tenant cannot agree to the FMV of
the demised premises under Paragraph 1 above within two (2) weeks of
Tenant's notice to Landlord of Tenant's intent to renew, then both
Landlord and Tenant, no later than one (1) week thereafter, shall
give written notice to the other party setting forth the party's
proposed annual fair market rental value that such party asserts is
the basis for the Base Annual Rent which should be paid by Tenant
hereunder. In addition, the party's shall include in such notice the
name and address of the person that party elects to designate as an
arbitrator on its behalf (notice altogether "Designation Notice").
If either party fails to make such designation then that arbitrator
shall be appointed by the American Arbitration Association in
accordance with Paragraph 3 below. In such an event, the FMV shall
be determined by arbitration as hereinafter provided.
3. In the event of an arbitration to decide the FMV as set forth in
Paragraph 2 above, the arbitrators shall be licensed real estate
brokers or appraisers doing business in the City and State of New
York and shall have not less than 10 years active experience as
such. In making their determinations, the arbitrators shall consider
the same factors as set forth in Paragraph 1 above and shall select
either the annual fair market rental value proposed by Landlord or
Tenant in notices required in Paragraph 2 above. The arbitration
shall proceed in accordance with the below.
4. In the event that the FMV has not been determined at the time that
the Renewal Period under R40 is to begin then Tenant shall occupy
the pertinent space at the rate proposed by Landlord under Paragraph
2 above pending the
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[ILLEGIBLE] RE
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Landlord Tenant
12. In all other respects, the terms covenants, provisions and conditions of
the Lease are hereby ratified and confirmed.
IN WITNESS THEREOF, the parties hereto have hereunto set their hands and seals
as of the date and year first above written.
Clemons Management Corp.
By Bernstein Management Corp.
D/b/a Bernstein Real Estate, as Agent
By: /s/ Vincent Terranova
--------------------------
Vincent Terranova,
Executive Vice President
Star Media Network, Inc.
By: /s/ [ILLEGIBLE]
--------------------------
On the day of March, 1998, before me personally came the above person who is
known to me and who did acknowledge to me that he is an officer of Star Media
Network, Inc. and he executed this Agreement.
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[ILLEGIBLE] RE
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Landlord Tenant
PROMISSORY NOTE
$ 80,000.00 April , 1998
New York, N.Y.
FOR VALUE RECEIVED, STAR MEDIA NETWORK, INC., a New York corporation,
having an office at 29 33 West 36th Street, New York, N.Y. (hereinafter referred
to as "Maker"), promises to pay to the order of CLEMONS MANAGEMENT CORP., a New
York corporation, having an office at c/o Bernstein Real Estate, 855 Avenue of
the Americas, New York, N.Y. (hereinafter referred to as "Holder") the principal
sum of Eighty Thousand and 00/100 ($80,000.00) with interest thereon at the rate
of nine percent (9.0%) per annum with principal and interest to be paid in
forty-eight (48) equal and consecutive monthly installments of One-Thousand
Nine-Hundred Ninety and 81/100ths ($1,990.81) Dollars each on the 1st day of
each month commencing on August 1, 1998 through and including July 1, 2002, when
any then unpaid balance of the principal and interest shall be due and payable.*
The payment due hereunder shall be made payable to the order of Clemons
Management Corp., or the then holder hereof, and payment shall be made by
delivery of a check of Maker to Holder drawn on any bank, savings bank, trust
company or savings and loan association having a banking office in the State of
New York, or at such other place as the Holder hereof may designate from time to
time in writing.
This Note is issued pursuant to and is entitled to the benefits of the
provisions of a certain Lease ("Lease") dated the date hereof between Holder, as
Owner, and Maker, as Tenant, for the promises located at the Entire Third and
Fifth Floors in the building located at 29-33 West 36th Street, New York, N.Y.
In addition to the security set forth in the Lease, the payment of this Note is
further occured by a certain irrevocable sight draft "evergreen" Letter of
Credit in the sum of fifteen thousand ($15,000.00) dollars as more specifically
described in the Lease. The Letter of Credit has been issued by a commercial
bank located in the State, City and County of New York and may be presented for
payment at a location within the State, City and County of New York.
The entire amount of this Note shall become immediately due
* In the event if the eighty thousand dollars has not been advanced by July 1,
1998, then the payments under the note will be adjusted so that interest only
shall be payable on the amount advanced and when the eighty thousand dollars has
been advanced the 48 equal monthly installments shall commence and run
consecutively. If there shall not be remaining 48 months in the term of the
lease at the time the eighty thousand dollars has been fully advanced then the
installment due in the last month of the term shall include the balance of
principal then remaining and any unpaid interest.
and payable upon the the failure of Maker to make a payment due hereunder or the
occurrence of an Event of Default under the Lease. An Event of Default under
this Note shall have the same meaning as an Event of Default as specified in the
Lease.
Upon the occurrence of an Event of Default, whether upon maturity,
acceleration or otherwise, interest shall thereafter accrue upon the unpaid
principal balance at the highest rate per annum permissible by law; however,
this provision shall not be construed to extend the maturity date.
The Holder hereof may collect a "late charge" in an amount equal to six
percent (6%) of any installment of interest, which is not received by the Holder
hereof at the place designated herein for payment on or before the tenth (10th)
day of the month in which such payment is due. The failure, or delay, by the
Holder to enforce its rights under this Note, including, but not limited to,
requiring Maker to pay immediately in full any and all sums due and owing under
this Note following an event of default by Maker, shall not result in a waiver,
or loss, by Holder of its rights under this Note nor shall such failure, or
delay, by Holder in enforcing its rights under this Note relieve Maker of any of
her obligations hereunder. The Holder may waive or delay enforcing a right under
this Note without waving other rights the Holder may have hereunder. The Holder
need not give Maker notice of its waiver or delay, of its rights under this
Note.
All payments hereunder shall be made 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.
If the Holder, or then holder hereof, retains counsel for the purpose of
collecting any money which may be due under this Note, or to protect its
interests herein, then and in that event, Maker hereby agrees to pay to the
Holder, or then Holder hereof, counsel fees, the amount of which is hereby
expressly fixed at fifteen percent (15%) of the then unpaid balance of this
Note, and such counsel fees and all disbursements incurred by the Holder, or
then holder hereof, shall be added to the indebtedness and shall be and are
hereby made part of the debt due under this Note, and shall be payable on
demand. Said counsel fees are in no event to affect, but are to be paid in
addition to, any statutory court costs and disbursements.
2
The Maker reserves the right to prepay this Note in whole or in part
without any premiums or penalties.
All payments received by the Holder shall be applied first on account of
interest; second, to pay unpaid late charges; and third on account of principal.
If a law which applies to this loan and which sets maximum loan charges is
finally interpreted so that the interest or other loan charges collected or to
be collected in connection with this loan exceed the permitted limits, then (i)
any such loan charge shall be reduced by the amount necessary to reduce the
charge to the permitted limit; and any sums already collected from Maker by
Holder which exceeded permitted limits will be applied to the reduction of
principal due under this Note and shall be treated by the Holder as a partial
prepayment under this Note.
The Maker hereby waives diligence, demand, presentment, notice of
non-payment and protest, dishonor and non-payment and consents to any extension
of time or payment hereof made after maturity by Agreement with Maker, with or
without notice.
This Note has been executed and delivered in the County, City and State of
New York and shall be construed and interpreted in accordance with, and governed
by, the laws off the State of New York, without application of the principles of
conflicts of law.
All notices or demands to be given under this Note shall be in writing and
shall be served by personal delivery or registered or certified mail, return
receipt requested, addressed as follows: (i) to the Holder at the address first
set forth above, and (ii) to the Maker at The Fifth Floor, 29-33 West 36th
Street, New York, N.Y. or to such other address as each party may hereafter
designate by notice delivered in accordance herewith. All notice, demands, or
other communications required hereunder shall be deemed given on the third day
following deposit thereof in the U.S. mail or, in the case of personal delivery,
on the date of such delivery.
Star Media Network, Inc.
By: /s/ [ILLEGIBLE]
----------------------------
3
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 15th day of April, 1998 before me personally appeared Fernando
Espuelas to me known, who being by me duly sworn, did depose and say that he
resides at 156 Everett Rd., Easton CT 06612; that he is he CEO of Star Media
Network, Inc., the corporation described in and which executed the foregoing
instrument; 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.
/s/ William S. Marbit
------------------------------------
Notary
WILLIAM S. MARBIT
Notary Public, State of New York
No. 31-4653555
Qualified in New York County
Certificate Filed in New York County
Commission Expires November 30, 1999
4
Exhibit "C"
[NAME OF BANK]
Clemons Management Corp. Irrevocable Letter of Credit
[Date]
[ADDRESS]
Dear Sirs:
We hereby authorize you to draw, at any time and from time to time on
(name of bank), New York, New York
FOR ACCOUNT OF Star Media Network, Inc.
UP TO THE AGGREGATE OF Fifteen thousand ($15,00.00) DOLLARS U.S. Currency
AVAILABLE BY YOUR DRAFTS AT SIGHT, accompanied by:
Your written statement that you are entitled to draw against the Letter of
Credit by reason of a default pursuant to a lease dated as of September
15, 1997 and as modified by an amendment dated March 13, 1998 between
Clemons Management Corp., Landlord and Star Media Network, Inc., Tenant.
It is a condition of this Letter of Credit that it shall be extended for
an additional period of one year from the present or future expiration
date hereof unless thirty days prior to such date we shall notify you in
writing by certified mail, return receipt requested, that we elect not to
renew this Letter of Credit for such additional period. Upon receipt by
you of such notice you may draw hereunder by means of your draft on us at
sight accompanied by your written statement that you have not received an
appropriate renewal of this Letter of Credit. All drafts drawn under this
Credit must bear on their face the clause "DRAWN UNDER (name of bank)
CREDIT NO."
This standby Letter of Credit and the payment is irrevocable and not
otherwise conditional and shall not be subject to any defense,
counterclaim or offset nor shall the payment thereof be subject to any
restraint, injunction or other delay in payment.
Except so far as otherwise expressly stated, this Credit is subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision)
International Chamber of Commerce, Publication No. 500.
We hereby agree with the drawers of drafts drawn in compliance with the
terms of this Letter of Credit, that the same shall be duly honored on
presentation to the drawee.
Yours very truly,
/s/ [ILLEGIBLE]
------------------------
AUTHORIZED SIGNATURE
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[INITIALS] [INITIALS]
-------------------------
Landlord Tenant
SECOND AMENDMENT TO LEASE
This Agreement made as of the August 27, 1998, between Clemons Management Corp.
c/o Bernstein Real Estate, 855 Avenue of the Americas, New York, NY 10001,
("Landlord"), and Star Media Network, Inc., having offices at 29-33 West 36th
Street, New York, NY, ("Tenant").
WITNESSETH
WHEREAS, by Lease dated September 15, 1997 Landlord leased to Tenant, the Entire
Fifth (5th) Floor in the building known as 29-33 West 36th Street, New York, NY,
for a term of five (5) years beginning 9/01/97 and ending on 08/31/02; and
WHEREAS, by Amendment to Lease dated April 8, 1998 Landlord leased to Tenant the
Entire Third Floor in addition to the Entire Fifth Floor;
WHEREAS, Tenant presently occupies the demised premises and is now the owner and
holder of the aforesaid Lease, and
WHEREAS, Landlord, and Tenant are desirous of modifying the Lease:
NOW, THEREFORE, in consideration of the mutual covenants herein contained, ten
dollars ($10.00) (the receipt and sufficiency of which is hereby acknowledged)
and other good and valuable consideration, it is agreed between the parties that
the Lease shall be amended as follows (altogether, as modified, the "Lease"):
1. Demised Premises: Effective as of the date first set forth above, the
demised premises shall now also include the Entire Eighth Floor ("Second
Additional Space") (altogether the "demised premises") of the Building.
Landlord shall deliver possession of the Additional Space in "as is"
condition upon the execution of this Agreement.
2. Term for the Entire demised premises and Rent for Third Floor and Fifth
Floor: Effective as of the date first set forth above, the term under the
Lease shall be extended from 08/31/02 to 8/31/03 (8/31/03 now being the
"Lease Expiration Date" under the Lease as amended). The Base Annual Rent
due in the last year of the Lease for the 3rd and 5th Floors,
respectively, shall be as follows:
3rd Floor 5/1/02 - 4/30/03 $96,966.00 ($8,030.50 per month)
3rd Floor 5/1/03-- 8/31/03 $100,359.81 ($8,363.32 per month)
5th Floor 9/1/02-- 8/31/03 $100,366.02 ($3,363.83 per month)
3. Rent for the Eighth Floor: Supplementing R5. of the Lease and effective as
of the date hereof, the Base Annual Rent for the Second Additional Space
shall be as follows:
$91,000.00 from 9/1/98 to 8/31/99 ($7,583.34 per month)
$94,185.00 from 9/1/99 to 8/31/00 ($7,848.75 per month)
$97,481.00 from 9/1/00 to 8/31/01 ($8,123.42 per month)
$100.893.00 from 9/1/01 to 8/31/02 ($8,407.75 per month)
$104,424.00 from 9/1/02 to 8/31/03 ($8,702.00 per month)
Notwithstanding the foregoing and provided that Tenant is not in default
of any of the terms of the Lease, is not in bankruptcy and is in
possession of the demised premises, Tenant shall occupy the Second
Additional Space Base Annual Rent free from 9/1/98 through to and
including 10/31/98. Tenant, however, shall be responsible for all other
charges and additional rent such as utilities due under the Lease.
4. Real Estate Taxes: Supplementing Article R7(A) and R7(D) of the Lease and
effective 7/1/99, Tenant shall pay eight point three three percent (8.33%)
as Additional Rent for the Second Additional Space. Supplementing R7(C) of
the Lease and effective 7/1/99, Tenant's Base Tax Year for the Second
Additional Space shall be 1998/1999, Notwithstanding the foregoing, Tenant
shall not be required to pay any escalation for Real Estate Taxes for the
Second Additional Space prior to 9/1/99.
5. Loan and Default:
A.
(i) As a material inducement to Landlord to enter into this
Amendment to the
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[INITIALS] [INITIALS]
-------------------------
Landlord Tenant
Lease, Tenant has agreed to spend not less than eighty
thousand dollars ($80,000.00) in making certain leasehold
improvements (collectively the "Improvements") to the Second
Additional Space, which Improvements are more specifically
described in Exhibit A attached hereto and made a part hereof
and which shall be made in accordance with the Lease,
including but not limited to Article 3, 6 and R35 thereof.
(ii) In connection with the Improvements, Landlord has agreed to
make, and Tenant has agreed to accept, a loan (the "Loan")
from Landlord in the principal sum of eighty thousand dollars
($80,000.00) to be paid out in accordance with Paragraph B
below (the "Note") and as evidenced by a certain Promissory
Note of an even date herewith (see Exhibit B attached hereto
and made a part hereof). Tenant hereby specifically
acknowledges and agrees that the Note and this Lease are
hereby cross-defaulted so that any default under the Note
shall constitute a default under this Lease and any default
under this Lease shall constitute a default under the Note
entitling Landlord, in its capacity as Landlord under this
Lease or a Holder under the Note, in either event without
limitation, to exercise such rights and remedies as set forth
in this Lease and the Note and/or which may be available to
Landlord at law or in equity.
(iii) No later than five (5) days prior to the requested date of any
loan advance hereunder, Tenant shall deposit with Landlord a
sum of fifteen thousand dollars ($15,000.00) as security for
the Loan either in the form of a clear, irrevocable,
self-renewing sight draft or an "evergreen" letter of credit
substantially in the form of exhibit C annexed hereto and made
a part hereof ("Letter of Credit"). Said Letter of Credit
shall be issued by any commercial bank in the State and City
of New York ("Issuing Bank") and shall be capable of being
presented for payment in the City of New York. Payment under
the Letter of Credit shall be made to Landlord upon Landlord's
written notice to the Issuing Bank of Tenant's default under
the Lease and/or the Note. Provided that Tenant is not in
default of all the terms, conditions and covenants of this
Lease at the time Tenant repays the Note as set forth in this
Article said $15,000.00 shall be returned to Tenant.
B. (i) All sums advanced pursuant to the Note shall be deemed
advances of the Loan and shall be advanced by Landlord to
Tenant, from time-to-time, at Landlord's option, whether to
Tenant or directly to the General Contractor or to any other
contractor(s) or subcontractor(s) against the requisitions by
Tenant for payment for work ("Work") completed by the
respective General Contractor, contractor(s) and/or
subcontractor(s). Each advance by Landlord shall be subject to
receipt by Landlord of the following:
(a) Approval by Landlord of the contractor and/or
subcontractors;
(b) Verifiable invoices for the Work;
(c) Certification signed by an authorized officer of Tenant
stating that (1) the Work has been completed in accordance
with Exhibit A; (2) the amount of the invoice is
consistent with Tenant's construction contract with the
contractor and/or subcontractor submitting the invoice;
and (3) that is was completed to Tenant's satisfaction;
(d) Certification by Tenant architect that the Work has been
completed accordance with Exhibit A;
(ii) Payment for Work completed is hereby made expressly contingent
upon delivery by Tenant to Landlord of a Partial Lien Waiver
in the amount of the payment and a Final Lien Waiver and
General Release upon completion of the Work (or the
Improvement, as the case may be). Each Partial Lien Waiver,
Final Lien Waiver and General Release to the executed in
recordable form by the respective General Contractor,
contractor(s) and subcontractor(s). The form of the Partial
Lien Waiver and the Final Lien
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[INITIALS] [INITIALS]
-------------------------
Landlord Tenant
Waiver and General Release shall be substantially in the form
of Exhibit B annexed hereto and made a part hereof. Neither
Landlord or Tenant shall deliver payment for the Work without
delivery to Landlord of the appropriate Partial Lien Waiver,
Final Lien Waiver or General Release. The failure by Tenant to
furnish Landlord with the aforesaid Waiver's or General
Release shall be deemed a material default under this Lease.
6. Landlord's Work: Adding Article R38 to the Lease and pertaining solely to
the Second Additional Space,
1. Demolition as per Tenant's Plans (see attached Exhibit A);
2. Upgrade restrooms to make similar to restrooms on Third Floor of the
Building;
3. Deliver 200 amp 3 phase electrical service to the panel box located
on the 8th Floor;
4. Patch ceiling, columns, beams and walls (including the closing of
the easterly wall window openings);
5. Deliver and install one fifteen (15) ton air-cooled air conditioning
unit. Tenant shall provide duct work and maintain and repair both
unit and ducts throughout term of Lease;
6. Patch and repair floor to make ready for carpet;
7. Paint the entire demised premises if so requested;
8. Put all sprinkler heads in a upward facing position, if necessary;
and
9. Repair and seal rear windows, as needed.
Landlord's Work, as described above, shall be a one-time, non-recurring
obligation of Landlord. Landlord shall use Building standard materials and
supplies when performing said Work.
7. Guaranty: Supplementing the Guaranty attached to the Lease for the demised
premises, dated 9/15/97 and signed by Fernando Espuelas, individually,
effective 8/11/98, the Guaranty shall also include this Second Additional
Space.
8. Water Charges: Supplementing Article 29 of the Lease and effective
8/11/98, Tenant shall pay an additional twenty five ($25.00) as water
charges for this Second Additional Space.
9. Option to Renew, Supplementing Article R40 of the Lease: The Option to
Renew shall apply to this Second Additional Space.
10. Building Flag: Adding Article R42 to the Lease: Tenant may, subject to
Landlord's written consent, install and mount one (1) building flag
similar in appearance to previously renditions submitted and approved by
Landlord (such approval not to be unreasonably withheld) including
requested dimensions (see Exhibit D attached hereto for an example of such
approved rendition). Tenant shall, at its sole cost and expense, obtain
all permits and comply with all applicable laws and regulations.
Furthermore, Tenant shall assume all liability for such flag, obtaining
insurance, if applicable, and shall keep such flag is good and safe
repair. Tenant agrees to indemnify and hold Landlord harmless for any and
all damages, loss and injuries which may result from such flag. In the
event that Landlord elects to have the flag removed upon the termination
of this Lease (at Landlord's sole option) or in the event that Tenant
itself elects (with Landlord's written consent) to remove said flag during
its tenancy, then Tenant shall repair any and all damage to the Building's
facade at its own cost and expense. Tenant's flag may not interfere with
any other tenant's windows or light into the tenant's space.
11. Telecommunications: Supplementing Article 41 of the Lease: The
Telecommunications clause shall also apply to this Second Additional
Space.
12. Security Deposit: Supplementing Article 32 of the Lease and upon the
execution of this Agreement, Tenant shall deposit with Landlord fourteen
thousand eight three dollars and thirty four cents ($14,083.34) as
security for the Second Additional Space so that Landlord shall now hold a
total of forty two thousand two hundred fifty dollars and two cents.
-------------------------
[INITIALS] [INITIALS]
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Landlord Tenant
($42,250.02) as security under the Lease.
13. Assignment and Subletting: Supplementing Article R14 of the Lease.
Paragraph R14C(8) and R14C(9) shall now apply on a per floor basis.
Paragraph C shall now permit, under the conditions and provisions set
forth in R14 such as Landlord's prior written consent, the subletting or
assignment to another whose use is general offices.
14. Request for Information: Adding Article R43 to the Lease. Tenant may, from
time to time, but not more often than two (2) times per year, request in
writing that Landlord disclose space which is available or may be coming
available in the next twelve (12) months. Landlord shall respond to such
request in good faith.
15. Supplementing and Modifying Paragraph 5 the first Amendment to Lease dated
April 8, 1998: Landlord and Tenant acknowledge that, as of the date of
this Amendment, Tenant has not drawn down on the above-referenced loan
with respect to the Third Floor. Notwithstanding anything to the contrary
contained within the first Amendment to Lease, the Letter of Credit for
the Third Floor loan shall be required no later than five (5) days prior
to the requested date of the loan advance therefor.
16. Supplementing Insert No. 10 of the annotations attached to the Lease and
entitled "Inserts to Printed Form and Supplemental Rider Paragraphs":
There shall be inserted a new insert (iv) which shall read as follows:
(iv) to "Affiliates" as hereinafter defined. ("Affiliates" shall mean any
entity which controls or is controlled by, or is under common control
with, Tenant or any of Tenant's principal shareholders.)
17. In all other respects, the terms covenants, provisions and conditions of
the Lease are hereby ratified and confirmed.
IN WITNESS THEREOF, the parties hereto have hereunto set their hands and seals
as of the date and year first above written.
Clemons Management Corp. Star Media Network, Inc.
By Bernstein Management Corp.
D/b/a Bernstein Real Estate, as Agent
By: By:
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
- -------------------------------------- -----------------------------------
Vincent Terranova,
Executive Vice President
On the day of August, 1998, before me personally came the above person who is
known to me and who did acknowledge to me that he is an officer of Star Media
Network, Inc. and he executed this Agreement.
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[INITIALS] [INITIALS]
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Landlord Tenant
Exhibit C
[NAME OF BANK]
Clemons Management Corp. Irrevocable Letter of Credit
[Date]
[ADDRESS]
Dear Sirs:
We hereby authorize you to draw, at any time and from time to time on
(name of bank), New York, New York
FOR ACCOUNT OF Star Media Network, Inc.
UP TO THE AGGREGATE OF Fifteen thousand ($15,000.00) DOLLARS U.S. Currency
AVAILABLE BY YOUR DRAFTS AT SIGHT, accompanied by:
Your written statement that you are entitled to draw against the Letter of
Credit by reason of a default pursuant to a lease dated as of September
15, 1997 and as modified by an amendment dated April 8, 1998 and again on
August 27, 1998 between Clemons Management Corp., Landlord and Star Media
Network, Inc., Tenant.
It is a condition of this Letter of Credit that it shall be extended for
an additional period of one year from the present or future expiration
date hereof unless thirty days prior to such date we shall notify you in
writing by certified mail, return receipt requested, that we elect not to
renew this Letter of Credit for such additional period. Upon receipt by
you of such notice you may draw hereunder by means of your draft on us at
sight accompanied by your written statement that you have not received an
appropriate renewal of this Letter of Credit. All drafts drawn under this
Credit must bear on their face the clause "DRAWN UNDER (name of bank)
CREDIT NO."
This standby Letter of Credit and the payment is irrevocable and not
otherwise conditional and shall not be subject to any defense,
counterclaim or offset nor shall the payment thereof be subject to any
restraint, injunction or other delay in payment.
Except so far as otherwise expressly stated, this Credit is subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision)
International Chamber of Commerce, Publication No. 500.We hereby agree
with the drawers of drafts drawn in compliance with the terms of this
Letter of Credit, that the same shall be duly honored on presentation to
the drawee.
Yours very truly,
- -----------------------------------
AUTHORIZED SIGNATURE
New York
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[INITIALS] [INITIALS]
-------------------------
Landlord Tenant
PROMISSORY NOTE
$ 80,000.00 August 1998
New York, N.Y.
FOR VALUE RECEIVED, STAR MEDIA NETWORK, INC., a New York corporation,
having an office at 29-33 West 36th Street, New York, N.Y. (hereinafter referred
to as "Maker"), promises to pay to the order of CLEMONS MANAGEMENT CORP., a New
York corporation, having an office at c/o Bernstein Real Estate, 855 Avenue of
the Americas, New York, N.Y. (hereinafter referred to as "Holder") the principal
sum of Eighty Thousand and 00/100 ($80,000.00) with interest thereon at the rate
of nine percent (9.0%.) per annum with principal and interest to be paid in
forty-eight (48) equal and consecutive monthly installments of One-Thousand
Nine-Hundred Ninety and 81/100ths ($1,990.81) Dollars each on the 1st day of
each month commencing on September 1,1998 through-and including
__________________ when any then unpaid balance of the principal, and interest
shall be due and payable.
The payment due hereunder shall be made payable to the order of Clemons
Management Corp., or the then holder hereof, and payment shall be made by
delivery of a check of Maker to Holder drawn on any bank, savings bank, trust
company or savings and loan association having a banking office in the State of
New York, or at such other place as the Holder hereof may designate from time to
time in writing.
This Note is issued pursuant to and is entitled to the benefits of the
provisions of a certain Lease ("Lease") dated the date hereof between Holder, as
Owner, and Maker, as Tenant, for the premises located at the Entire Third, Fifth
and Eighth Floors in the building located at 29-33 West 36th Street, New York,
N.Y. in addition to the security set forth in the Lease, the payment of this
Note is further secured by a certain irrevocable, sight draft "evergreen" Letter
of Credit in the sum of fifteen thousand ($15,000.00) dollars as more
specifically described in the Lease. The Letter of Credit has been issued by a
commercial bank located in the State, City and County of New York and may be
presented for payment at a location within the State, City and County of New
York.
The entire amount of this Note shall become immediately due and payable
upon the failure of Maker to make a payment due hereunder or the occurrence of
an Event of Default under the Lease. An Event of Default under this Note shall
have the same meaning as an Event of Default as specified in the Lease.
Upon the occurrence of an Event of Default, whether upon maturity,
acceleration or otherwise, interest shall thereafter accrue upon the unpaid
principal balance at the highest rate per annum permissible by law; however,
this provision shall not be construed to extend the maturity date.
The Holder hereof may collect a "late charge" in an amount equal to six
percent (6%) of any installment of interest, which is not received by the Holder
hereof at the place
designated herein for payment on or before the tenth (10th) day of the month in
which such payment is due. The failure, or delay, by the Holder to enforce its
rights under this Note, including, but not limited to, requiring Maker to pay
immediately in full any and all sums due and owing under this Note following an
event of default by Maker, shall not result in a waiver, or loss, by Holder of
its rights under this Note nor shall such failure, or delay, by Holder in
enforcing its rights under this Note relieve Maker of any of her obligations
hereunder. The Holder may waive or delay enforcing a right under this Note
without waiving other rights the Holder may have hereunder. The Holder need not
give Maker notice of its waiver or delay, of its rights under this Note.
All payments hereunder shall be made 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.
If the Holder, or then holder hereof, retains counsel for the purpose of
collecting any money which may be due under this Note, or to protect its
interests herein, then and in that event, Maker hereby agrees to pay to the
Holder, or then Holder hereof, counsel fees, the amount of which is hereby
expressly fixed at fifteen percent (15%) of the then unpaid balance of this
Note, and such counsel fees and all disbursements incurred by the Holder, or
then holder hereof, shall be added to the indebtedness and shall be and are
hereby made part of the debt due under this Note, and shall be payable on
demand. Said counsel fees are in no event to affect, but are to be paid in
addition to, any statutory court costs and disbursements.
The Maker reserves the right to prepay this Note in whole or in part
without any premiums or penalties.
All payments received by the Holder shall be applied first on account of
interest; second, to pay unpaid late charges: and third on account of principal.
If a law which applies to this loan and which sets maximum loan charges is
finally interpreted so that the interest or other loan charges collected or to
be collected in connection with this loan exceed the permitted limits, then (i)
any such loan charge shall be reduced by the amount necessary to reduce the
charge to the permitted limit; and any sums already collected from Maker by
Holder which exceeded permitted limits will be applied to the reduction of
principal due under this Note and shall be treated by the Holder as a partial
prepayment under this Note.
The Maker hereby waives diligence, demand, presentment, notice of
non-payment and protest, dishonor and non payment and consents to any extension
of time or payment hereof made after maturity by Agreement with Maker, with or
without notice.
This Note has been executed and delivered in the County, City and State of
New York and shall be construed and interpreted in accordance with, and governed
by, the laws of the State of New York. without application of the principles of
conflicts of law.
2
All notices or demands to be given under this Note shall be in writing and
shall be served by personal delivery or registered or certified mail, return
receipt requested, addressed as follows: (i) to the Holder at the address first
set forth above, and (ii) to the Maker at The Fifth Floor, 29-33 West 36th
Street, New York, N.Y. or to such other address as each party may hereafter
designate by notice delivered in accordance herewith. All notice, demands, or
other communications required hereunder shall be deemed given on the third day
following deposit thereof in the U.S. mail or, in the case of personal delivery,
on the date of such delivery.
Star Media-Network, Inc.
By: /s/ [ILLEGIBLE]
-----------------------
3
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28 day of August, 1998 before me personally appeared Steve Heller
to me known, who being by me duly sworn, did depose and say that he resides at
__________________________; that he is the_____________________ of Star Media
Network, Inc., the corporation described in and which executed the foregoing
instrument; 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.
/s/ William S. Marbit
------------------------------------
Notary
WILLIAM S. MARBIT
Notary Public, State of New York
No. 31-4653555
Qualified in New York County
Certificate Filed in New York County
Commission Expires November 30, 1999
4