2194
STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
Agreement of License, made as of this day of June 2000, between 33 WEST 54TH
REALTY, INC., party of the first part, hereinafter referred to as OWNER. and
REGENESIS HOLDINGS, INC., party of the second part, hereinafter referred to as
TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner
the second and third floors at 33 West 54th street, New York, NY in the
building known as 33 West 54th Street, New York, NY in the borough of , City
of New York, for the term of Five (5) Years and Three (3) months (or until
such term shall sooner cease and expire as hereinafter provided) to commence
on the 1st day of August, 2000, and to end on the 31st day of October 2005
(subject to Section 41 of the attached rider) both dates inclusive, at an
annual rental rate of as per Section 37 of the attached Rider which Tenant
agrees to ray 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, of 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 is additional rent.
The parties hereto, for themselves, their heirs, distributes, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent: 1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy. 2. Tenant shall use and occupy demised premises for Executive and
Administrative offices and for no other purpose.
Tenant Alterations: 3. Tenant shall make no changes in or to the demised
premises of any nature without Owner's prior written consent. Subject to the
prior written consent of Owner and to the provisions of this article. Tenant,
at Tenant's expense, may make alterations, installations, additions and
improvements which are non structural and which do not affect utility services
or plumbing and electrical lines, in or to the interior of the demised premises
by using contractors or mechanics first approved in each instance by Owner.
Tenant shall, before making any alterations, additions, installments or
improvements at its expense, obtain all permits, approvals and certificates
required by any governmental or equal governmental bodies and (upon completion)
certificates of final approval thereof and shall deliver promptly duplicates of
all such permits, approval and certificates to Owner and Tenant's agrees to
carry and will cause Tenant's contractors and sub contractors to carry such
workman's compensation, general liability, personal and property damage
insurance as Owner may require. If any mechanics lean is filed against the
demised premises or the building of which the same forms a part for work claims
to have been done for, or material furnished to, Tenant, whether or not done
pursuant to this Article, the same shall be discharged by Tenant within 30
(thirty) days thereafter, at Tenant's expense, by payment or filing the bond
required by law. All fixtures and all paneling, partitions, railings and like
installments, installed in the premises at any time, either by Tenant or by
Owner on Tenant's behalf, shall, upon installation, become the property of
Owner and shall remain upon and be surrendered with the demised premises
unless Owner, by notice to Tenant, no later than 20 (twenty) days prior to the
date fixed as the termination of this Lease, elects to relinquish Owner's
rights therefore and to have them removed by Tenant, in which event the same
shall be removed from the premises by Tenant prior to the expiration of the
Lease, at Tenant's expense.
Maintenance and Repairs: 4. Tenant shall, throughout the term of this Lease,
take good care of the demised premises and the fixtures and the appearances
therein. Tenant shall be responsible for all damage or injury to the demise
premises or any other part of the building and the systems and equipment
thereof, whether requiring structural or non structural repairs or caused by
resulting from carelessness, omission, and neglect or improper conduct of
Tenant, or Tenant's subtenants, agents, employees, invitees and licensees, or
which arise out of any work, labor, service or equipment done for or supplied
to Tenant or any subtenant or arising out of the installation use or operation
of the property or equipment of Tenant or any subtenant. Tenant shall also
repair all damage to the building and the demise premises caused by the
removing of Tenant's fixtures, furniture and equipment. Tenant shall promptly
make at Tenant's expense, all repairs and into the demise premises for which
Tenant is responsible using only the contractor for the trade or trades in
question, selected from a list of at least two contractors per trade submitted
by Owner. Any other repairs in or to the building or the facilities and
systems thereof for which Tenant is responsible shall be performed by Owner at
the Tenant's expense. Owner shall maintain in good working order and repair
the exterior and the structural portions of the building, including the
structural portions of its demised premises, and the public portions of the
building interior and the building plumbing, electrical, heating, ventilating
systems, (to the extent such systems presently exist) serving the demised
premises. Tenant agrees to give prompt notice of any defective condition in
the premises for which Owner may be responsible hereunder. There shall be no
allowance to Tenant for diminution of rental value and no liability on the
part of Owner by reason of inconvenience, annoyance or injury to the business
arising from Owner or others making repairs, alterations, additions to
improvements in or to any portion of the building or the demise premises or in
and to the fixtures, appearances 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 or damages for breach of
Contract. The provisions for this Article 4 shall not apply in the case of
fire or other casualty which are dealt with in Article 9 hereof.
Window Cleaning: 5. Tenant will not clean nor require, permit, suffer or
allow any window in the demised premises to be cleaning from the outside in
violation of Section 202 of the Labor Law or any other applicable law or of
the Rules of the Board of Standard and Appeals, or any other Board or body
having or asserting jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads: 6. Prior to the
commencement of the Lease term if Tenant is then in possession, and at all
times thereafter, Tenant, at Tenant's sole cost and expense, shall promptly
comply with all present and future laws, orders and regulations of all state,
federal, municipal and local governments, departments, commissions and the
boards and any direction of any public office pursuant to law, and all orders,
rules and regulations of the New York Board of Fire underwriters, Insurance
Services Office, or any similar body which shall impose any violation, order
or duty upon Owner or Tenant with respect to the demised premises, whether or
not arising out of Tenant's use or matter of use thereof (including Tenant's
permitted use), with respect to the building if arising out of Tenant's use or
manner of use of the premises or the buildings (including the use permitted
under the Lease). Nothing herein shall require Tenant to make structural
repairs or alterations unless Tenant has, by its manner of use of the demised
premises or method of operation therein, violated any such law, ordinances,
orders, rules, regulations or requirements with respect thereto. Tenant may,
after securing Owner to Owner's satisfaction against all damages, interest,
penalties and expenses. Including but not limited to, reasonable attorney's
fees, by cash deposits or by surety bond in an amount and in a company
satisfactory to Owner, to attest and appeal any such laws, ordinances, orders,
rules, regulations or requirements provided same if done with all reasonable
promptness and provided such appeal shall not subject Owner to prosecution for
a criminal offence or constitute a default under any lease or mortgage under
which Owner may be obligated, or cause the demise premises or any part thereof
to be condemned or vacated. Tenant shall not do or permit any act or thing to
be done in or to the demised premises which is contrary to law, or which will
invalidate or be in conflict with public liability, fire or other policies of
insurance of any time carried by or for the benefit of the Owner with respect
to the demised premises or the building of which the demised premises form a
part, or which shall or might subject Owner to any liability or responsibility
to any person or for property damage. Tenant shall not keep anything in the
demised premises except as now or hereafter permitted by the fire department,
Board of Fire Underwriters, Fire Insurance Rating Organization or other
authority having jurisdiction, and then only in such manner and such quantity
so as not to increase the rates for fire insurance applicable to the building,
nor use the premises in a manner which will increase the insurance rates for
the building or any property located therein although that in affect prior to
the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this Article and if by
reason of such failure the fire insurance rates shall, at the beginning of
this lease or at anytime thereafter, be hire than it otherwise would be, then
Tenant shall reimburse Owner, and additional rent hereinunder, for the portion
of all fire insurance premiums thereafter paid by Owner which have been charged
because of such failure by Tenant. In any action or proceeding wherein Owner
and Tenant are parties, a schedule or "makeup" of rates for the building or
demised premises issued by the New York Fire Insurance Exchange, or other body
making fire insurance rates applicable to said premises shall be conclusive
evidence of 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 provision of all
safes, business machines and mechanical equipment such installations shall be
placed and maintained by Tenant, by Tenant's expense, in settings sufficient
in Owner's judgment, to absorb and prevent vibration, noise and annoyance.
Subordination: 7. This lease is subject and subordinate to all grounds or
underlying leases and to all mortgages which may now or hereinafter affect
such leases or the real property of which demised premises are a part and to
all renewals, modifications, consolidations, replacements and extensions if
any such underlying leases and mortgages period. This clause shall be self-
operative and no further instrument of subordination shall be required by any
ground or underlying lessor or by any mortgagee, affecting any lease or the
real property of which the demised premises are a part. In confirmation of
such subordination, Tenant shall from time to time execute promptly any
certificate that Owner may request.
Property Loss, Damage Reimbursement Indemnity: 8. Owner or its Agent's shall
not be liable for any damage to property or Tenant or of others entrusted to
employees of the building, nor for loss or damage of 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 do to the
negligence of Owner, its agents, servants or employees. Owner or its agents
shall not be liable for nay such damage caused by another Tenant, tenant's or
persons in, upon or about said building or cause by operation in construction
of any private, public or quasi public work. If at any time any windows of
the demised premises are temporarily closed, darkened or bricked up, (or
permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to Owner's own act, Owner shall
not be liable for any damage Tenant may sustain thereby and Tenant shall not
be entitled to any compensation therefore nor abatement or diminution of rent,
nor shall the same release Tenant from its obligation hereunder nor constitute
on eviction. Tenant shall indemnify and stay harmless Owner against and from
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable
attorney's fees, paid, suffer or incurred as a result of any breach by Tenants,
tenants agents, contractors, employees, invitees, or licensees, of any
covenants or condition of this lease, or the carelessness, negligence or
improper conduct of Tenant, tenants agents, contractors, employees, invitees,
or licensees. Tenants liability under this lease extends to the acts and
omissions of any subtenants, and any agent, contractor, employee, invitee or
licensee or any subtenant. In case any action or proceeding is brought
against Owner by reason of any such claim, Tenant, upon written notice from
Owner, will at Tenants expense, resist or defend such actions or proceeding by
counsel approved by Owner in writing, such approval not be unreasonably
withheld.
Destruction, Fire and Other Casualty: 9. (a) If the demised premises or any
partner of shall be damaged by fire or other casualty, Tenant shall get
immediate notice thereof to Owner and this lease shall continue in full force
in effect except as hereinafter set forth. (b) if the demised premises are
partially damaged or tendered 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 decide to
demolish it or to rebuild it, then, in any as such events, Owner may elect to
terminate this lease by written notice to Tenant, given within 90 days after
such fire or casualty, or 30 days after adjustments of the insurance claim for
such fire or casualty, whichever is sooner, specifying a date for the
expiration of the lease, which date shall not be more than 60 days after the
giving of such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date or the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however to landlord's
rights and remedies against Tenants under the lease provisions in effect prior
to such termination, and any rent owing shall be paid up to such date and any
payment 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) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance claims, labor
troubles and clauses 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
moveable equipment, furniture, and other property. Tenant's liability for
rent shall resume five (5) days after written notice from Owner that the
premises are substantially ready for Tenant's occupancy. (c) Nothing contained
hereinabove shall relieve Tenant from liability that may exist as a result of
damage from fire or other casualty. Notwithstanding the foregoing, including
Owner's obligation to restore under subparagraph (b) above, each party shall
look first to any insurance in its favor before making any claim against the
other party for recovery, or 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 such hereby releases and
waives all rights of recovery with respect to subparagraphs (b), (d) and (e)
above, against the other or anyone 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 enforced only if
both releasors insurance policy 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 benefiting from the waiver shall pay such premium within 10 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 at the appurtenances removable
by Tenant and agrees that Owner will not be obligated to repair any damage
thereto or replace the same. (f) Tenant hereby waves the provisions of
Section 227 of the Real Property Law and agrees that the provisions of this
Article shall govern and control in lieu thereof.
Eminent Domain: 10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease and assigns to
Owner, Tenant's entire interest in any such award. Tenant shall have the right
to make an independent claim to the condemning authority for the value of the
Tenant's moving expenses and personal property, trade fixture 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, distributes,
executors, administrators, legal representative, successor and assigns,
expressly covenants that it shall not assign, mortgage or other 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 as
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under tenant or occupant,
and apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, under tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further
assignment or underletting.
Electric Current: 12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the rises or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time
of the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
Access to Premises: 13. Owner or Owner's agents shall have the right (but
shall not be obligated) to enter the demises premises in any emergency at any
time, and, at other reasonable times, to examine the same and to make such
repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to the demised premises or to any other portion of the
building or which Owner may elect to perform. Tenant shall permit Owner to use
and maintain and replace pipes and conduits in and through the demised premises
and to erect new pipes and conduits therein provided they are concealed within
the walls, floor, or ceiling. Owner may, during the progress of any work in
the demised premises, take all necessary materials and equipment into said
premises without the same constituting an eviction nor shall the Tenant be
entitled to any abatement of rent while such work is in progress nor to any
damages by reason or loss or interruption of business or otherwise. Throughout
the term hereof Owner shall have the right to enter the demised premises at
reasonable hours for the purpose of showing the same to prospective purchasers
or mortgages of the building, and during the last six months of the term for
the purpose of showing the same to prospective tenants. If Tenant is not
present to open and permit an entry into the 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 therefore, nor in any event shall the obligations of Tenant hereunder
be affected. If during the last the last month of the term Tenant shall have
removed all or substantially all of Tenant's property therefrom Owner may
immediately enter, alter, renovate or redecorate the demised premises without
limitation or abatement of rent, or incurring liability to Tenant for any
compensation and such act shall have no effect on this lease or Tenant's
obligations hereunder.
Vault, Vault Space, Area: 14. No Vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder, anything contained in or indicated on any sketch, blue print or
plan, or anything contained elsewhere in this lease to the contrary
notwithstanding. Owner makes no representation as to the location of the
property line of the building. All vaults and vault space and all such areas
not within the property line of the building, which Tenant may be permitted to
se and/or occupy, is to be used and/or occupied under a revocable license, and
if any such lease 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 or diminution or requisition be deemed constructive or actual
eviction. Any tax, fee or charge of municipal authorities for such vault or
area shall be paid by Tenant.
Occupancy: 15. Tenant will not at any time use or occupy the demised premises
in violation of the certificate of occupancy issued for the building of which
the demised premises are a part. Tenant has inspected the premises and accepts
them as is, subject to the riders annexed hereto with respect to Owner's work,
if any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject violations, whether or
not of record.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary notwith-
standing, this lease may be cancelled by Owner by the sending of a written
notice to Tenant within a reasonable time after the happening of any one or
more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as 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 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 owing Tenant's interest in this lease. (b) it is stipulated and agreed
that in the event of the termination of this lease pursuant to (a) hereof,
Owner shall forthwith notwithstanding any other provisions of this lease to
the contrary, be entitled to recover from Tenant as and for liquidated damages
an amount equal to the difference between the rent reserved hereunder for the
unexpired portion of the term demised and the fair and reasonable rental value
of the demised premises for the same period. In the computation of such damages
the difference between any installment of rent becoming due hereunder after
the date of termination and the fair and reasonable rental value of the
demised premises for the period for which such installment was payable shall
be discounted to the date of termination at the rate of four percent (4%) per
annum. If such premises or any part thereof be re-let by the Owner for the
unexpired term and said lease, or any part thereof, before presentation or
proof of such liquidated damages to any court, commission or tribunal, the
amount of rent reserved upon such 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 of this lease for the payment of rent or
additional rent: or if the demised premises become vacant or deserted; or if
any execution or attachment shall be issued against Tenant or Tenant's
property whereupon the demised premises shall be taken or occupied by someone
other than Tenant or if the lease be rejected under sec. 235 of Title 11 of
the
U.S. Code (bankruptcy code); or if Tenant shall fail to move into or take
possession of the premises within thirty (30) days after the commencement of
the term of this lease, 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 date 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 curing 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 (5) five 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
of the expiration of this lease and the term thereof and Tenant shall then
quit and surrender the demised premises to Owner but Tenant shall remain
liable as hereinafter provided. (2) if the notice provided for in (1) hereof
shall have been given, and the term shall expire as aforesaid; or if Tenant
shall make default in the payment of the rent reserved herein or any item of
additional rent herein mentioned or any part of either or in making any other
payment herein required; then and in any of such events Owner may without
notice, re enter the demised premises either by force or otherwise, and
dispossess Tenant by summary proceedings or otherwise, and the legal
representative of Tenant or other occupant of demised premises and remove
their effects and hold the premises as if this lease had not been made, and
Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end. If Tenant shall make default hereunder
prior to the date fixed as the commencement of any renewal or extension
agreement by written notice.
Remedies of Owner and Waiver of Redemption: 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or other wise,
(a) the rent 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 the Owner or otherwise, for a
term or terms, which may at Owner's option be less than or exceed the period
which would otherwise have constituted the balance of the term of this lease
and may grant concessions or free rent or charge a higher rental than that in
this lease, and/or (c) Tenant or the legal representatives of Tenant shall
also pay Owner as liquidated damages for the failure of Tenant to observe and
perform said Tenant's covenants herein contained, any deficiency between the
rent hereby reserved and/or covenanted to be paid and the net amount, if any,
of the rents collected on account of the lease or leases of the demised
premises for each month of the period which would otherwise have constituted
the balance of the term of this lease. The failure of Owner to re let the
premises or any part or parts thereof shall not release or affect Tenant's
liability for a\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 attorney's 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 demises premises, and the
making of such alterations, repairs, replacements, and/or decorations shall
not operate or be construed to release Tenant from liability hereunder
aforesaid. Owner shall in no event be liable in any way whatsoever for failure
to re let the demised premises, or in the event that the demised premises are
re-let, for failure to collect the rent thereof under such re-letting, and in
no event shall Tenant be entitled to receive any excess, if any, or such net
rents collected over the sums payable by Tenant to Owner hereunder. In the
event of a breach or threatened breach by Tenant of any of the covenants or
provisions hereof, Owner shall have the right of injunction and the right to
invoke any remedy allowed at law or in equity as if re entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed for any cause, or in the event of Owner
obtaining possession of demised premises, by reason of the violation by Tenant
of any of the covenants and conditions of this lease, or otherwise.
Fees and Expenses: 19. If Tenant shall default 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 terms or provisions in any article of this
lease, after notice if any (except in an emergency), then, unless otherwise
provided elsewhere in this lease, Owner may immediately or at any time there-
after and without notice perform the obligation of Tenant thereunder, makes any
expenditures or incurs any obligations for payment of money, including but not
limited to reasonable attorneys' fees, in instituting, prosecuting or
defending any action or proceeding, and prevails in any such action 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'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 state-
ment to Tenant therefore. 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 therefore to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or other public parts of the building and to change the name, number or
designation by which the building may be known. There shall be no allowance
to Tenant for diminution of rental value and no liability on the part of Owner
by reason of inconvenience, annoyance or injury to business arising from Owner
or other Tenants making any repairs in the building or any such alterations,
additions and improvements. Furthermore, Tenant shall not have any claim
against Owner by reason of Owner's imposition of such controls of the manner
of access to the building by Tenant's social business visitors as the Owner
may deem necessary for the security of the building and its occupants.
No Representations by Owner: 21. Neither Owner nor Owner's agents have made
any representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the premises except as herein expressly set forth and no rights, easements
or licenses are acquired by Tenant by implication or otherwise except as
expressly set forth in the provisions of the lease. Tenant has inspected the
building and the demised premises and is thoroughly acquainted with their
condition and agrees to take the same "as is" and acknowledges that the taking
of possession of the demised premises by Tenant shall be conclusive evidence
that the said premises and the building of which the same possessions was so
taken, except as to the latest defects. All understandings and agreements
heretofore made between the parties hereto are merged in this contract, which
alone fully and completely expresses the agreement between Owner and Tenant and
any executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in part, unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
End of Term: 22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If
this lease shall expire at noon on the preceding Saturday unless it is a legal
holiday in which case it 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 performing all
the terms, covenants peaceably and quietly enjoy the premises hereby demised,
subject, nevertheless, to the terms and conditions of this lease including,
but not limited in, Article 31 hereof and to the ground leases, underlying
leases and mortgages hereinbefore mentioned.
Failure to Give Possession: 24. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof, because of
the holding over or retention of possession of any tenant, undertenant or
occupants or if the demised premises are located in a building being
constructed, because such building has not been sufficiently completed to make
the premises ready for occupancy or because of the fact that a certificate of
occupancy has not been procured or for any other reason, Owner shall not be
subject to any liability for failure to five possession on said date and the
validity of the lease shall not be impaired under such circumstances, nor shall
the same be construed in any wise to extend the term of this lease, but the
rent payable hereunder shall be abated (provided Tenant is not responsible for
Owner's inability to obtain possession or complete construction) until after
Owner shall have given Tenant written notice that the Owner is able to deliver
possession in condition required by this lease. If permission is given to
Tenant to enter into the possession of the demises premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lese, Tenant covenants and agrees that such
possession and/or occupancy shall be deemed to be under all the terms,
covenants, conditions and provisions of this lease except the obligation to pay
the fixed annual rent set forth in the preamble to this lease. The provisions
of this article are intended to constitute "an express provision to the
contrary " within the meaning of Section 223-a of the New York Real Property
Law.
No Waiver: 25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease
or of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent and/or additional rent with knowledge of the breach
of any covenant of this lease shall not be deemed a waiver of such breach and
no provision of this lease shall be deemed to have been waived by Owner unless
such waiver be in writing signed by Owner. No payment by Tenant or receipt by
Owner of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement of any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction, and Owner may accept
such check or payment without prejudice to Owner's right to recover the balance
of such rent or pursue any other remedy in this lease provided. No act or
thing done by Owner or Owner's agent during the term hereby demised shall be
deemed an acceptance of a surrender shall be valid unless in writing signed by
Owner. No employee of Owner or Owner's agent shall have any power to accept
the keys of said premises prior to the termination of the lease and the delivery
of keys to any such agent or employee shall not operate as a termination of the
lease or a surrender of the premises.
Waiver of Trial by Jury: 26. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall and they hereby do waive trial
by jury in any action proceeding or 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 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 wise be affected, impaired or
excused because Owner is unable to fulfill any of its obligations under this
lease or to supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make, or is delayed in making any
repair, additions, alterations or decorations or is unable to supply or is
delayed in supplying any equipment, fixtures, or other materials if Owner is
prevented or delayed from so doing by reason of strike or labor troubles or any
cause whatsoever including, but not limited to, government preemption or
restrictions or by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the conditions
which have been or are affected, either directly or indirectly, by war or other
emergency.
Bills and Notices: 28. Except as otherwise in this lease provided, a bill,
statement, notice or communication which Owner may desire or be required to
give to Tenant, shall be deemed sufficiently given or rendered if, in writing,
delivered to Tenant personally or sent by registered or certified mail
addressed to Tenant at the building of which the demised premises form a part
or at the last known residence address or business address of Tenant or left
at any of the aforesaid premises addressed to Tenant, and the time of the
rendition of such bill or statement and of the giving of such notice or
communication shall be deemed to be the time when the same is delivered to
Tenant, mailed, or left at the premises as herein provided. Any notice by
Tenant to Owner must be served by registered or certified mail addressed to
Owner at the address first hereinabove given or at such other address as Owner
shall designate by written notice.
Services Provided by Owners: 29. As long as Tenant is not in default under any
of the covenants of this lease beyond the applicable grace period provided in
this lease for the curing of such defaults, Owner shall provide: (a) necessary
elevator facilities on business days from 8 a.m. to 6 p.m. and have one
elevator subject to call at all other times; (b) heat to the demised premises
when and as required by law, on business days from 8 a.m. to 6 p.m.; (c) water
for ordinary lavatory purposes, but if Tenant uses or consumes water for any
other purposes or in unusual quantities (of which fact Owner shall be the sole
judge), Owner may install a water meter at Tenant's expense which Tenant shall
thereafter maintain at Tenant's expense which Tenant shall thereafter maintain
at Tenant's expense in food working order and repair to register such waster
consumption and Tenant shall pay for water consumed as shown on said meter as
additional rent as and when bills are rendered; (d) cleaning service for the
demised premises on business days at Owner's expense provided that the same
are kept in order by Tenant. If, however, said premises are to be kept clean
by Tenant, it shall be done at Tenant's sole expense, in a manner reasonably
satisfactory to Owner and no one other than persons approved by Owner shall be
permitted to enter said premises or the building of which they are a part for
such purpose. Tenant shall pay Owner the cost of removal of any of Tenant's
refuse and rubbish from the building; (e) If the demised premises are serviced
by Owner's air conditioning/cooling and ventilating system, air conditioning/
cooling will be furnished to tenant from may 15th through September 30th on
business days (Mondays through Fridays, holidays excepted) from 8:00 a.m. to
6:00 p.m. and ventilation will be furnished on business days during aforesaid
hours except when air conditioning/cooling is being furnished as aforesaid.
If Tenant requires air conditioning/cooling or ventilation for more extended
hours or on Saturdays, Sundays or on holidays, as defined under Owner's
contract with Operating Engineers Local 94-94A, Owner will furnish the same at
Tenant's expense. RIDER to be added in respect to rates and conditions for
such additional service; (f) Owner reserves the right to stop services of the
heating, elevators, plumbing, air conditioning, electric, power systems or
cleaning or other services, if any, when necessary by reason of accident or for
repairs, alterations, replacements or improvements necessary or desirable in
the judgement of Owner for as long as may be reasonably required by reason
thereof. If the building of which the demised premises are a part supplies
manually operated elevator service, Owner at any time may substitute automatic
control elevator service and proceed diligently with alterations necessary
therefor without in any wise affecting this lease or the obligation of Tenant
hereunder.
Captions: 30. The Captions are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope of this lease
nor the intent of any provisions thereof.
Definitions: 31. The term "office" or "offices", wherever used in this lease,
shall not be construed to man premises uses as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, barber shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a
lease of the building or of the land and building) of which the demised
premises form a part, so that in the event of any sale or sales of said land
and building or of said lease, or in the event of a lease of said building, or
of the land and building, the said Owner shall be and hereby is entirely freed
and relieved of all covenants and obligations of Owner hereunder, and it shall
be deemed and construed without further agreement between the parties or their
successors in interest, or between the parties and the purchaser, at any such
sale, or the said lessee of the building, or of the land and building, that the
purchaser or lessee of the building has assumed and agreed to carry out any
and all covenants and obligations of Owner, hereunder. The words "re-enter"
and "re-entry" as used in this lease are not restricted to their technical
legal meaning. The term "business days" as used in this lease shall exclude
Saturdays, Sundays and all days as observed by the State or Federal applicable
Operating Engineers contract with respect to IIVAC 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: 32. If an excavation shall be make upon land
adjacent to the demised premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the demised premises for the purpose of doing such work
as said person shall deem necessary to preserve the wall or the building of
which demised premises form a part from injury or damage and to support the
same by proper foundations without any claim for damages or indemnity against
Owner, or diminution or abatement of rent.
Rules and Regulations: 33. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with,
the Rules and Regulations and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter make 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, convenants 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.
Security: 34. Tenant has deposited with Owner the sum of
$21,000.00 as security for the faithful performance and observance by Tenant of
the terms, provisions and conditions of this lease; it is agreed that in the
event Tenant defaults I respect of any of the terms, provisions and conditions
of this lease, including, but not limited to, the payment of rent and additional
rent, Owner may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional
rent or any other sum as to which Tenant is in default or for any sum which
Owner may expend or may be required to expend by reason of Tenant's default
in respect of any of the terms, covenants and conditions of this lease,
including but not limited to, any damages or deficiency in the re-letting of
the premises, whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Owner. In the event that Tenant shall
fully and faithfully comply with all of the terms, provisions, convenants and
conditions of this lease, the security shall be returned to Tenant after the
date fixed as the end of the Lease and after delivery of entire possession of
the demised premises to Owner. In the event of a sale of the land and building
or leasing of the building, of which the demised premises form a part, Owner
shall have the right to transfer the security to the vendee or lessee and Owner
shall thereupon be release 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 make of the security to a new Owner. Tenant further
convenant that it will not assign or encumber or attempt to assign or
encumber the monies deposited herein as security and that neither Owner now its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
Estoppel Certificate: 35. Tenant, at any time, and from time to time, upon
at least 10 days' prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or corporation specified by
Owner, a statement certifying that this Lease is unmodified and in full force
and effect (as modified and stating the modifications), stating the dates to
which the rent and additional rent have been paid, and stating whether or not
there exists any default by Owner under this Lease, and, if so, specifying each
such default.
Successors and Assigns: 36. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns. 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.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: 33 West 54th Street
Reality, Inc.
By Kellogg Properties, Inc.
Managing Agent
By:
__________________________________
Witness for Tenant: Regenesis Holdings, Inc.
By:
__________________________________
ACKNOWLEDGEMENTS
CORPORATE OWNER
STATE OF NEW YORK,
County of
On this day of , 19 , before me personally came to me
know, who being by me duly sworn, did depose and say that he resides in ;
that he is the of the corporation described in and which executed
the foregoing instrument, as OWNER; that he knows the seal of said corporation;
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.
CORPORATE TENANT
STATE OF NEW YORK,
County of
On this day of , 19 , before me personally
came to me known, who being by me duly sworn,
did depose and say the 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; the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
INDIVIDUAL OWNER
STATE OF NEW YOURK,
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 OWNER, executed the
foregoing instrument and acknowledged to me that he executed the same.
INDIVIDUAL TENANT
STATE OF NEW YORK,
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.
GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to Owner
making the within lease with Tenant, the undersigned guarantees to Owner,
Owner's successors and assigns, the full performance and observance of all the
covenants, conditions and agreements, therein provided to be performed and
observed by Tenant, including the "Rules and Regulations" as therein provided,
without requiring any notice of non payment, non performance, or non observance
or proof, or notice, or demand, whereby to charge the undersigned therefor, all
of which the undersigned hereby expressly waives and expressly agrees that the
validity of this agreement and the obligations of guarantor hereunder shall in
no wise be terminated, affected or impaired by reason of the assertion by Owner
against Tenant of any of the rights or remedies reserved to Owner pursuant to
the provisions of the within lease.; The undersigned further covenants and
agrees that this guaranty shall remain and continue in full force and effect as
to any renewal, modification or extension of this lease and during any period
when Tenant is occupying the premises as a "statutory tenant." As a further
inducement to Owner to make this lease and in consideration thereof, Owner and
the undersigned covenant and agree that in any action or proceeding brought by
either Owner or the undersigned against the other on any matters whatsoever
arising out of, under, or by virtue of the terms of this lease or of this
guarantee that Owner and the undersigned shall and do hereby waive trial by
jury.
Dated: ..................... 19.....
.......................
Guarantor
.......................
Witness
.......................
Guarantor's Residence
.......................
Business Address
.......................
Firm Name
STATE OF NEW YORK
COUNTY OF
On this day of , 19 ,
before me personally came ................
to me known and known to me to be the individual described in, and who executed
the foregoing Guaranty and acknowledged to me that he executed the same.
.......................
Notary
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
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,
r in the public hall of the building, either by any Tenant or by jobbers or
other in the delivery or receipt of merchandise, any hand trucks, except those
equipped with rubber tires and sideguards. If said premises are situated on
the ground floor of the building, Tenant thereof shall further, at Tenant's
expense, keep the sidewalk and curb in front of said premises clean and free
from ice, sow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of corridors or
halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the building by reason of noise, odors, and/or vibrations,
or interfere in any way with other Tenants or those having business therein,
nor shall any bicycles, vehicles, animals, fish, or birds be kept in or about
the building. Smoking or carrying lighted cigars or cigarettes in the elevators
of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of
the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of demised premise. 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 table 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 by 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 make in existing looks
or mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and each
Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building 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. 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 building for offices, and upon written notice from Owner.
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable, combustible, explosive, or hazardous fluid,
material, chemical or substance, or cause or emit any odors of cooking or
other processes, or any unusual or other objectionable odors to permeate in or
emanate from the demised premises.
13. If the building contains central air conditioning and ventilation, Tenant
agrees to keep all windows closed at all times and to abide by all rules and
regulations issued by Owner with respect to such services. If Tenant requires
air conditioning or ventilation after the usual hours, Tenant shall give notice
in writing to the building superintendent prior to 3:00 p.m. in the case of
services required on week days, and prior to 3:00 p.m. on the day prior incase
of after hours service required on weekends or on holidays. Tenant shall
cooperate with Owner in obtaining maximum effectiveness of the cooling system
by lowering and closing venetian blinds and/or drapes and curtains when the
sun's rays fall directly on the windows of the demised premises.
14. Tenant shall not move any safe, heavy machinery, heave equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection there with shall comply with the
Administrative Code of the City of New Your and all other laws and regulations
applicable therein and shall be done during such hours as Owner may designate.
15. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and agrees,
at its sole cost and expense, to comply with all present and future laws,
orders, and regulations of all state, federal, municipal, and local governments,
departments, commissions and boards regarding the collection, sorting,
separation and recycling of waste products, garbage, refuse and trash. Tenant
shall sort and separate such waste predicts, garbage, refuse and trash into
such categories as provided by law. Each separately sorted category of waste
products, garbage, refuse and trash shall be placed in separate receptacles
reasonably approved by Owner. Such separate receptacles may, at Owner's option,
be removed from the demised premises in accordance with a collection schedule
prescribed by law. Tenant shall remove, or cause to be removed by a contractor
acceptable to Owner, at Owner's sole discretion, such items as Owner may
expressly designate. (2) Owner's Rights in Event of Noncompliance. Owner has
the option to refuse to collect or accept from Tenant waste products, garbage,
refuse or trash (a) that is not separated and sorted as required by law or (b)
which consists of such items as Owner may expressly designate for Tenant's
removal, and to require Tenant to arrange for such collection at Tenant's sole
cost and expense, utilizing a contractor satisfactory to Owner Tenant shall pay
all costs, expenses, fines, penalties, or damages that may be imposed on Owner
or Tenant by reason of Tenant's failure to comply with the provisions of this
Building Rule 15, and, at Tenant's sole cost and expense, shall indemnity,
defend and hold Owner harmless (including reasonable legal fees and expenses)
from and against any actions, claims and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to Owner.
ACKNOWLEDGEMENTS
Tenant covenants and agrees to pay as Additional Rent, without set-off or
deduction, 50% of any "heat charges" during the term of this Lease. "Heat
charges" shall be defined as the cost to Owner of fuel furnished by either
Owner, oil company or the utility company now or hereafter supplying heat to
the building of which the demised premises are a part for heat and hot water.
39. Electric Charges
Tenant covenants and agrees to pay as Additional Rent, without set-off or
deduction, 50% of the electricity charges as billed by the public utility
company (Consolidated Edison) for electricity used in the building and
registered by the building meter.
40. Cleaninly and Garbage Removal
As long as Tenant is not in default under any covenants of this Lease, Owner
shall provide cleaning and garbage removal for the Demised Premises. Tenant
covenants and agrees topay as Additional Rent without set-off for declaration,
50% of Owner's cost for said services.
41. Landlord Work
The Tenant has inspected the premises and takes them in "as is" condition
except for the following work to be completed by Owner prior to commencement
of the term of this Lease:
a. Painting the Demised Premises at building standards;
b. Carpeting the Demised Premises at building standards;
c. Upgrading lighting fixtures to building standards;
d. Upgrade hallways and common areas.
In the event Owner is unable to complete such work prior to August 1, 2000,
Tenant shall be entitled to an abatement of Basic Rent until the date of
completion and delivery of the Demised Premises (the "Completion Date"). In
such event, the Commencement Date shall be amended to be the date three (3)
days after the Completion Date and all other dates during the Term of this
Lease shall be amended accordingly to provide a full term of five (5) years
and three (3) months and Tenant shall execute a Commencement Letter evidencing
the same. If and when Tenant shall take actual possession of the Demised
Premises, it shall be conclusively presumed that the same are in satisfactory
condition.
42. Additional Rent
All sums whatsoever not included within Basic Rent and payable by Tenant under
this Lease constitute Additional Rent and are payable monthly without set-off
or deduction, whether or not so specified elsewhere in this lease. All sums in
arrears under this Lease will bear interest, at the then maximum annual rate of
interest chargeable to individuals in New York State, from their respective due
dates until received by Owner, but this in no way limits any claim for damages
or any other rights and remedies available to Owner for any breach or default
by Tenant. Owner's and Tenant's obligations under this Lease will survive the
expiration or sooner termination of the Term.
43. Insurance
Tenant agrees to obtain insurance coverage for the Demised Premises for general
liability in the sums of Five Hundred Thousand Dollars ($500,000.00) at least,
for bodily injury, and One Hundred Thousand Dollars ($100,000.00) for property
damage, and shall also insure the plate glass on the premises. The Owner and
Tenant shall both be named as insureds. The certificate of this insurance
coverage shall be furnished to the Owner within ten (10) days after the
execution of this Lease. Should the Tenant fail to maintain this insurance
coverage at any time, the Owner may procure such insurance for the Tenant and
the premium shall be immediately due and payable by Tenant as Additional Rent.
44. Maintenance and Repairs
Supplementing the provisions of Section 4 hereof, the Tenant shall, during the
term hereof, at its own cost and expense, maintain and keep in good condition
and repair the Demised
Premises, all parts thereof and improvements now or hereafter erected thereon,
and their full equipment and appurtenances, whether the same be structural or
non-structural, ordinary or extraordinary; howsoever the necessity or
desirability therefor may occur, ordinary war and tear and insured casualty
excepted. Tenant shall promptly pay any and all fines, penalties and other
charges incurred or imposed by reason of the Tenant's failure so to do. Any
reference herein to or including structural repairs or latent defects shall
only be applicable to that portion of the premises which Tenant shall have
altered structurally, or which results from Tenant's fault. Owner, at its
expense, shall make. all repairs and replacements, structural or otherwise
necessary or desirable, in order to keep in good order and repair the exterior
of the Demised Premises and of the building of which the form a part,
including the sidewalks and curbs in front and adjacent thereto and the public
halls, stairways and other public portions thereof, and shall make all
structural repairs of any kind to the plumbing and other fixtures (excepting
Tenant's trade fixtures) and the pipes, sprinklers, ducts, conduits, wiring
and other equipment and facilities, unless such repairs are provided in this
Section 4 to be made by Tenant.
45. Alterations
Tenant shall not make any alterations, installations, improvements or additions
to the Demised Premises or any part thereof or to any areas adjacent to the
Demised Premises (collectively "Alterations"), without the prior written
consent of Owner. Notwithstanding the foregoing, Owner shall not unreasonably
withhold its consent to any interior alterations. All Alterations shall become
part of the realty and belong to Owner upon expiration or other termination of
this Lease, unless Owner elects to have Tenant remove such Alterations.
Alterations shall be free and clear of all liens and encumbrances, including,
without limitation, mechanic's and materialmen's liens, conditional bills of
sale, chattel mortgages and UCC financing statements (collectively, the
"Encumbrances").
Tenant shall furnish plans and specifications (the "Plans") to Owner for any
Alterations, and work shall not commence until such Plans have been approved by
Owner. All Alterations shall be made with all possible dispatch in a first-
class manner with first-class materials and workmanship and in conformity and
compliance with the Plans.
Tenant shall be responsible, at its won cost and expense, prior to the commence
of any alterations, for procuring all necessary licenses, permits, approvals or
other authorizations from any and all governmental authorities.
Alterations shall be performed by contractors approved by Owner in its
reasonable discretion, and in compliance and conformity with all applicable
laws and ordinances.
46. Air Conditioning
Tenant agrees to keep all air conditioners in good operating condition and
shall undertake all repairs at its sole cost and expense in order to ensure
this.
47. Mechanic's Lien
Tenant will not permit, during the term of this Lease, any Mechanic's Lien or
other lien or order for payment of work, labor, services or materials furnished
or to be furnished to attach to or affect the Demised Premises or any portion
thereof, and agrees that no such lien or order shall under any circumstances
attach to or affect the fee, Leasehold, or other estate of the Owner herein or
the building. The Tenant's obligation to keep the Demised Premises in repair,
and its right to make alterations therein shall not be construed as the consent
of the Owner to the furnishing of such work, labor or materials within the
meaning of any present or future lien law. Notice is hereby given that the
Tenant has no power, authority or right to do any act or to make any contract
with may create, or be the foundation for any lien upon the fee or Leasehold
estate of the Owner in the Demised Premises or upon the land or building of
which they are a part. The Tenant shall within thirty (30) days after notice,
discharge said lien or order payments by deposit or by bond fixed in a proper
proceeding according to law. If the Tenant shall fail to take such action, or
shall not cause such lien or order to be discharged within thirty (30) days
after the notice of fling thereof, the Owner may pay the amount of such lien or
discharge the same by deposit or by bond or in any other manner according to
law, and pay any judgment recovered in any action to establish or foreclose
such lien or order, and any amount so paid, together with the expenses
incurred by the Owner, including all reasonable attorney's fees and
disbursements incurred in any defense of such action, bonding or other
proceeding, shall be deemed Additional Rent.
48. Liabilities
Whenever in this Lease there is reference to obligations and covenants of
Owner, it is understood that Tenant pursuant to this Lease, will look solely
to the real property at 33 West 54th Street, New York, NY for enforcement
thereof, limited in all events to fifty percent (50%) of the value thereof,
and that no personal liability on behalf of the Owner or assigns shall accrue
in favor of the Tenant hereunder. The Tenant waives the right to seek any
monetary damages or other legal relief personally against the officers and
directors of owner or Managing Agent, or any individual Owner, hereunder.
49. Noise. Odors
Tenant agrees to conduct itself and its use of the Demised Premises so that it
will not interfere with any of the other tenants in the building and that there
will be no unreasonable noise, odors, or other disturbance inconveniencing any
of the other tenants. Tenant recognizes that the Demised Premises are directly
above a first class restaurant and that any excess noise may materially
adversely effect the use of such restaurant tenant and cause such restaurant
tenant considerable damage. Accordingly, Tenant shall take all reasonable
measures including the installation of carpeting over not less than 80% of the
floor space of the Demised Premises over said restaurant space to assure against
unreasonable noise and disturbance. Tenant shall not use any amplification
equipment which would create unreasonable noise or vibration. Tenant shall
indemnify and hold Landlord and the other tenants of the Building harmless from
any damage they may incur as a result of its breach of this covenant.
50. Signs
Tenant may place at his/her sole cost and expense a sign setting forth his/her
name on the door of the Demised Premises and one brass plaque on the directory
of the building of which the Demised Premises is part. The brass plaque shall
conform in color and design to other plaques on the Directory. There are to be
no other signs than those stated herein.
51. Access to Premises
The Owner retains all rights to enter the premises for the purpose of making
repairs or alterations to the structure of the building, and agrees to have
such work performed to inconvenience the Tenant as little as is reasonably
possible in the operation of its business. Owner's right of access, except in
emergencies, shall be exercised only on reasonable advance notice, oral or
written, during usual business hours.
52. Security Deposit
Supplementing the provisions of Article 34, Tenant has deposited Twenty-One
Thousand Dollars ($21,000.00) as security hereunder. Security will earn Bank
Deposit Interest. Interest will follow principal.
53. Broker
Owner and Tenant represent that they have not dealt with any person or entity
concerning this Lease other than Kellogg Properties, Inc. and Collins Tuttle &
Co., and know of no other person or entity making claim therefor. Owner shall
pay said broker a commission pursuant to separate agreement. Tenant and Owner
mutually agree to defend and hold each other harmless against the claims of any
person or entity involving a breach of the representations contained in this
paragraph to the extent of the damage caused the other party, including a
reasonably attorney's fees and costs of suit. In the event of a claim by any
person or entity, the party against whom the claim is made or the litigation is
commenced shall give reasonable notice to the other party with opportunity to
said other party to defend against any claim for which indemnity will be sought
under this paragraph.
54. Late Charges
If Tenant shall fail to make payment of any installment of Monthly Rent or any
Additional Rent within fifteen (15) days after the date when such payment is
due, Tenant shall pay to Owner, in addition a late charge equal to the lesser
of (i) two percent (2%) per month, or (ii) the maximum rate permitted by
applicable law, of the amount unpaid computed from the date such payment was
due, to and including the date of payment.
55. Compliance with Laws
Tenant shall, at its own cost, comply with all laws, ordinances, rules and
regulations, and orders of any city or state agencies pertaining to the
operating of the business in the Demised Premises.
56. Effect of Rider
The provisions of this Rider are in addition to and not in limitation of the
provisions of the printed portion of this Lease to which this Rider is attached
and forms a part. In each instance in which a provision of this. Rider shall
contradict or otherwise by inconsistent with the provisions of the printed form
of this Lease to which this Rider is annexed, the provisions of this Rider
shall govern and the contradicted or inconsistent provision of the printed form
shall be deemed amended accordingly.
57. End of Term
Upon the expiration or other termination of the term hereof, Tenant shall quit
and surrender to Owner the Demised Premises, broom clean, in good order and
condition, ordinary wear and tear and damage for which Tenant is not
responsible under the terms of this Lease excepted, and Tenant may remove all
of its property pursuant to Article 3 hereof. Tenant's obligation to observe or
perform this covenant shall survive the expiration or sooner termination of the
term hereof. Tenant agrees that if possession of the Demised Premises is not
surrendered to Owner within twenty-four (24) hours after the expiration date or
sooner termination of the term, in addition to any other rights or remedy Owner
may have hereunder or at law, Tenant shall pay to Owner for each month and for
each portion of any month during which Tenant holds over in the Demised Premises
after the expiration date or sooner termination of this lease, a sum equal to
one and one half (1-1/2) times the aggregate of that portion of the Rent which
was payable under this Lease during the last month of the term.
58. Notices
All notices and demands, legal or otherwise, incidental to or required by this
Lease, or the occupancy of the Premises, shall be in writing. If the Owner or
its agent desires to give or serve upon the Tenant any notice or demand, it
shall be sufficient to send a copy thereof by certified mail, return receipt
requested, addressed to the Tenant at 33 West 54th Street, New York, NY. Notices
from the tenant to the Owner shall be sent by certified mail, return receipt
requested, or delivered to the Owner at 33 West 54th Realty, Inc., c/o Kellogg
Properties, Inc., 40 West 57th Street, New York, NY 10019, or to such other
party or place as the Owner or Tenant may from time to time designate in
writing. The date of receipt of any such notice shall be considered as the date
of service.
59. Assignment. Subletting
Supplementing the provisions of Section 11 hereof, the Tenant shall not,
without first obtaining the written consent of the Owner, assign, mortgage,
pledge or encumber this Lease in whole or in part, or sublease the Premises or
any part thereof, which consent shall not be unreasonably withheld.
60. Services Provided by Owner
Supplementing the provisions of Section 29 hereof, as long as Tenant is not in
default under any of the covenants of this Lease, Owner shall provide (a) heat
as required by Law; (b) hot and cold water for bathroom and kitchen sink. Owner
shall provide these services on weekdays and weekends during the period allowed
by Law.
61. Further Provisions as to Default.
a. All sums of money, other than the Basic Rent reserved in this Lease, that
shall become due from and payable from Tenant to Owner hereunder shall
constitute additional rent, for default in the payment of which Owner shall
have the same remedies as for a default in the payment of Basic Rent.
b. If Tenant is late in making any payment due to Owner from Tenant under this
Lease for five (5) or more business days, then Tenant shall pay to Owner, as
Additional Rent and as a late charge, the greater of $300.00 or the amount
equal to the interest on such payment from the date upon which it was due until
paid, which interest shall be computed at the rate equal to two (2%) percent
per annum over the then prime rate of The Chase Manhattan Bank, N.A., but in
no event in excess of the maximum lawful rate of interest chargeable to
corporations in the State of New York.
c. Bills for any expenses incurred by Owner in connection with any performance
by it for the account of Tenant, and bills for all costs, expenses and
disbursements of every kind and nature whatsoever, including reasonable
counsel fees, involved in collecting or endeavoring to collect the Basic Rent
or Additional Rent or any part thereof or, enforcing or endeavoring to enforce
any rights against Tenant, under or in connection with this Lease or pursuant
to law, including any such cost, expense and disbursement involved in
instituting and prosecuting summary proceedings, as well as bills for any
property, material, labor or services provided, furnished, or rendered by Owner,
or at its instance to Tenant, may be sent by Owner to Tenant monthly, or
immediately, at Owner's option, and shall be due and payable in accordance with
the terms of such bills.
62. Arbitration.
a. Either party may request arbitration of any matter in dispute with respect
to which arbitration is expressly provided in this lease as the appropriate
remedy. The party requesting arbitration shall do so by giving notice to that
effect to the other party, and both parties shall promptly thereafter jointly
apply to the American Arbitration Association (or any organization successor
thereto) in the City and County of New York for the appointment of a single
arbitrator.
b. The arbitration shall be conducted in accordance with the then prevailing
rules of the American Arbitration Association (or any organization successor
thereto) in the City and County of New York and, subject to the terms of the
immediately succeeding sentence, judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. In
rendering such decision and award, the arbitrator shall not add to, subtract
from, or otherwise modify the provisions of this Lease.
c. If, for any reason whatsoever, a written decision and award of the
arbitrator shall not be rendered within sixty (60) days after the appointment
of such arbitrator, then, at any time thereafter before such decision and
award shall have been rendered, either party may apply to the Supreme Court of
the State ofNew York or to any other court having jurisdiction and exercising
the functions similar to those now exercised by such court, by action,
proceeding, or otherwise (but not by a new arbitration proceeding) as may be
proper to determine the question in dispute consistently with the provisions
of this Lease.
d. All the expenses of the arbitration shall be borne by the parties equally.
63. Non-liability and Indemnification.
a. Neither Owner nor any agent or employee of Owner shall be liable to Tenant
for any injury or damage to Tenant or of any other person or for any damage to,
or loss (by theft or otherwise) of, any property of Tenant or of any other
person, irrespective of the cause of such injury, damage or loss, unless caused
by or due to the gross negligence of Owner, its agents or employees occurring
within the scope of their respective employments without negligence on the
part of Tenant (and only to the extent of Owner's interest in the building),
it being understood that no property, other than such as might normally be
brought upon or kept in the demised premises as an incident to the reasonable
use of the Demised Premises for the purpose herein permitted, will be brought
upon or be kept in the Demised Premises.
b. Tenant shall indemnify and save harmless Owner and its agents against and
from (a) any and all claims (i) arising from (x) the conduct or management of
the Demised Premises or of any business therein, or (y) any work or thing
whatsoever done, or any condition created (other than by Owner for Owner's or
Tenant's account) in or about the Demised Premises during the term of this
Lease or during the period of time, if any, prior to the commencement date of
the term of this Lease that Tenant may have been given access to the Demised
Premises, or (ii) arising from any negligent or otherwise wrongful act or
omission of Tenant or any of its subtenants, occupants or licensees or its
employees, agents or contractors, and (b) all costs, expenses and liabilities
incurred in or in connection with each such claim or action or proceeding
brought thereon. In case any action or proceeding be brought against Owner by
reason of any such claim, Tenant, upon notice from Owner, shall resist and
defend such action or proceeding.
c. This Lease and the obligations of Tenant hereunder shall be in no way
affected, impaired or excused because Owner is unable to fulfill, or is
delayed in fulfilling, any of its obligations under this lease by reason of
strike, other labor trouble, governmental preemption or priorities or other
controls in connection with a national or other public emergency or shortages
of fuel, supplies or labor resulting therefrom, acts of God or other like cause
beyond Owner's reasonable control.
64. Additional Default Remedies. It is hereby agreed that in the event of the
termination of this lease pursuant to the provisions of Article 17,
notwithstanding the provisions of Article 18, that Owner may, at Owner's
option, forthwith be entitled to recover from Tenant as and for liquidated
damages with respect to any such Lease termination, an amount equal to the
Fixed Rent provided hereunder for the unexpired portion of the term demised.
Upon the computation of such damages, all fixed rent payable hereunder after
the date of termination, shall be discounted from the date of termination at
the rate of four (4%) percent per annum.
In the event that the premises demised hereunder are relet after the date of
such termination and the date of the collection of the aforesaid liquidated
damages, then Owner agrees that on the date (the "Normal Expiration Date")
which would otherwise have been the normal expiration of this Lease but for
the termination of this lease pursuant to the provisions of Article 17, Owner
shall pay to Tenant a sum equal to the minimum rent actually paid Owner
(exclusive of any escalation payments, tax payments, fuel payments, operating
cost payments, percentage payments and the like whether denominated as rent or
otherwise) from the date of such termination to the Normal Expiration Date,
less any and all expenses of any type, kind or nature incurred by Owner in
connection with the reletting of the Demised Premises whether foreseen or
unforeseen and whether ordinary or extraordinary as conclusively determined
by Owner, provided, however, that such payment shall in no event exceed the
amount of liquidated damages actually paid by Tenant as aforesaid. The
foregoing, however, shall not imply any obligation upon Owner to relet the
premises demised hereunder in the event of any termination pursuant to the
provisions of Article 17, nor shall it constitute Owner as Tenant's agent
with respect to any reletting of such demised premises hereunder. Nothing
herein contained shall, however, limit or prejudice the right of Owner to
prove for and obtain as liquidated damages by reason of any 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 than, equal to, or
less than the amount referred to above.
65. Holding over. Notwithstanding any terms or conditions of this Lease to the
contrary, in the event that the term hereof shall expire or be terminated
pursuant to the terms hereof, by operation of law, or otherwise, and Tenant
shall become a holdover tenant thereupon, the use and occupancy payable by
Tenant hereunder shall be twice the last monthly installment of all rent due
and payable pursuant to this Lease prior to such expiration or termination of
the term. Nothing herein contained shall be deemed to create a month to month,
year to year or other periodic tenancy during any period in which Tenant is a
holdover tenant.
66. Addendum to Article 9. If the Demised Premises are totally damaged or
rendered wholly untenantable by fire or other casualty or if the building is so
damaged by fire or other casualty that access to the demised premises shall be
materially interfered with, and said damage or tenantability, as the case may
be, is not substantially corrected within 270 days after said fire or other
casualty, then, provided said fire or other casualty was not caused by the act
or omission of Tenant or any of Tenant's employees, agents or contractors,
Tenant, at Tenant's option, may elect to terminate this lease by written notice
to Owner given within fifteen (15) days after the expiration of said 270 day
period, time being of the essence, in which event, the term of this Lease shall
expire as fully and completely on the date which is thirty (30) days after the
date on which Tenant gives Owner such notice, as if such date were the
Expiration Date and Tenant shall forthwith quit, surrender and vacate the
Demised Premises without prejudice, however, to Owner's rights and remedies
against Tenant under the Lease provisions in effect prior to such termination,
and any fixed rent and/or additional rent owing shall be paid up to such date
and any payment or fixed rent and/or additional rent made by Tenant which were
on account of any period subsequent to such date shall be returned to Tenant.
If Tenant fails to give Owner such notice in the manner and in the time period
set forth above or if said fire or other casualty was caused by the act or
omission of Tenant or any of Tenant's employees, agents or contractors, then
Tenant's option to cancel this lease shall be null and void, and of no further
force or effect, and this Lease shall continue in full force and effect,
subject to the other provisions of this lease.
OWNER
33 West 54th Street Realty, Inc.
BY: KELLOGG PROPERTIES, MANAGING AGENT
By:
REGENESIS HOLDINGS, INC.
By:
GOOD GUY GUARANTY
Les Garland, Lawrence Gallow and Russell Adler (collectively, "Guarantors"),
each having an address at have requested 33 West 54`" Realty, Inc. ("Landlord"),
having an office c/o Kellogg Property, Inc., 40 West 54 Street, New York, New
York 10019 to enter into that certain Lease (hereinafter called the "Lease")
dated as of June -, 2000 between Landlord and Regenesis Holdings, Inc.
("Tenant"), covering certain space in the building known as 33 West 54' Street,
New York, New York, and in order to induce Landlord to enter into the Lease.
Guarantors hereby jointly and severally guarantee, unconditionally and
absolutely, to Landlord, its successors and assigns (without requiring any
notice of nonpayment, nonkeeping, nonperformance or nonobservance or proof of
notice or demand whereby to charge Guarantors, all of which Guarantors hereby
expressly waives), the full and faithful keeping, performance and observance
of all the covenants, agreements, terms, provisions and conditions of the
Lease provided to be kept, performed and observed by Tenant (expressly
including, without being limited to, the payment of any and all other damages
for which Tenant shall be liable by covenants, agreements,terms, provisions or
conditions).
As a further inducement to Landlord to enter into the Lease and in consideration
thereof, Guarantors represents and warrant that Guarantors are and except for
any transfers expressly permitted by Landlord pursuant to the Lease shall,
throughout the term of the Lease, remain the owner and holder of all the
capital stock of Landlord.
As a further inducement to Landlord to consent to the Assignment and in
consideration thereof, Guarantors hereby expressly covenant and acknowledge as
follows:
(1) The obligations of Guarantors hereunder shall not be terminated, reduced
or affected in any way or manner whatsoever by reason of any action or
inaction, (other than payment, satisfaction and performance of the obligations
of Guarantors hereunder) including without limitation Landlord's resort, or
Landlord's omission to resort, to any summary or other proceedings, actions or
remedies for the enforcement of any of (Landlord's rights under the Lease or
with respect to the premises thereby demised or by reason of any extensions of
time or indulgences granted by Landlord, or by reason of the assignment or
surrender of all or any part of the Lease or the term and estate thereby
granted or all or any part of the premises demised thereby unless and to the
extent Guarantors are expressly released in writing by Landlord from any
obligation in connection with any such assignment or surrender. The liability
of Guarantors are coextensive with that of Tenant and anyone else who is
liable under the Lease and also joint and several with their liability and
action or suit may be brought against Guarantors and darned to final judgment
and/or completion and recovery had, either with or without making Tenant or
anyone else a party thereto. This guaranty is a guaranty of payment and not of
collection and shall remain in full force and effect until payment in full to
Landlord of all sums payable under the Lease and expiration of any period
within which Landlord may be obligated to return such sums under any
bankruptcy or other laws. Guarantors waive any right to require that any action
be brought against Tenant, or anyone else or to require that resort be had to
any security or to any other credit in favor of Tenant.
(2) If the Lease shall be renewed or its term extended for any period beyond
the date presently specified in the Lease for the expiration of said term, or
if additional space shall be included in, or substituted for all or any part
of, the premises demised by the Lease, or if the Lease be modified by
agreement between Landlord and Tenant in any other similar or dissimilar
respect, the obligations hereunder of Guarantors shall extend to such additional
obligations and apply with respect to all of Tenant's obligations thereunder.
(3) Neither the giving nor the withholding by Landlord of any consent or
approval provided for in the Lease shall affect in any way the obligations
hereunder of Guarantors.
(4) Neither Guarantors' obligation to make payment in accordance with the
terms of this guaranty nor any remedy for the enforcement thereof shall be
impaired, modified, changed, stayed, released or limited in any manner
whatsoever by any impairment, modification change, release, limitation or stay
of the liability of Tenant or its estate in bankruptcy or any remedy for the
enforcement thereof, resulting from the operation of any present or future
bankruptcy or similar statute or from the decision of any court interpreting
any of the same, and Guarantors shall be obligated under this Guaranty as if
no such impairment, stay, modification, change, re-lease or limitation had
occurred.
(5) This Guaranty and all of the terms hereof, are binding on Guarantors and
the successors, assigns, and legal representatives of Guarantors.
(6) Guarantors hereby waive the right to trial by jury in any action or
proceeding that may hereafter be instituted by Tenant against Guarantors in
respect of this guaranty.
(7) The Lease and this Guaranty shall be interpreted under the laws of the
State of New York.
(8) Guarantors' liability pursuant to this Guaranty shall be limited to the
reimbursement of Landlord for such rent, additional rent and other charges and
damages as accrue under the Lease from the Date of Default under the Lease to
the date on which Tenant vacates the premises demised under the Lease in the
condition required thereunder and to the extent required under the Lease,
delivers the keys to Landlord an gives written notice to Landlord that it is
surrendering possession of the premises. In addition, Guarantors shall be
liable for an amount equal to the sum of: (i) the costs and expenses referred
to in paragraph (9) below, (ii) all costs and expenses incurred by and
Landlord, including without limitation, reasonable attorneys' fees and expenses,
in connection with successfully enforcing the terms and provisions of the
Lease or successfully exercising any remedy permitted thereunder or at law or
in equity as against Tenant.
(9) Guarantors will pay to Landlord all of Landlord's expenses, including,
but not limited to, reasonable attorneys' fees, in successfully enforcing this
Guaranty.
Dated, June-, 2000
Les Garland
Lawrence Gallow
Russell Adler
