Exhibit 10.39
STANDARD FORM OF OFFICE LEASE
(The Real Estate Board of New York, Inc. 3/1/86)
AGREEMENT OF LEASE, made as of this 23rd day of May, 2005, between
386 PAS PARTNERS, L.L.C., party of the first part, hereinafter
referred to as
Owner, and SENDTEC, INC., party of the second part, hereinafter
referred to as
Tenant.
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires
from Owner
PORTION OF 7TH FLOOR COMPRISING 2,500 SQUARE FEET, AS SHOWN ON
EXHIBIT A
ATTACHED HERETO, IN THE BUILDING KNOWN AS 386 PARK AVENUE SOUTH IN
THE BOROUGH
OF MANHATTAN, CITY OF NEW YORK,
FOR THE TERM BEGINNING UPON SUBSTANTIAL COMPLETION OF OWNER'S WORK
DESCRIBED IN
ARTICLE 46 HEREOF AND TO END ON THE 31ST DAY OF DECEMBER, 2009,
BOTH DATES
INCLUSIVE (OR UNTIL SUCH TERM SHALL SOONER CEASE AND EXPIRE AS
HEREINAFTER
PROVIDED),
at a rental rate as set forth in Article 38 hereof, which Tenant
agrees to pay
in lawful money of the United States which shall be legal tender in
payment of
all debts and dues, public and private, at the time of payment, in
equal monthly
installments in advance on the first day of each month during said
term, at the
office of Owner or such other place as Owner may designate, without
any set off
or deduction whatsoever, except that Tenant shall pay the first
monthly
installment on the execution hereof (unless this lease be a
renewal). In the
event that, at the commencement of the term of this lease, or
thereafter, Tenant
shall be in default in the payment of rent to Owner pursuant to the
terms of
another lease with Owner or with Owner's predecessor in interest,
Owner may at
Owner's option and without notice to Tenant add the amount of such
arrears to
any monthly installment of rent payable hereunder and the same
shall be payable
to Owner as additional rent.
The parties hereto, for themselves, their heirs, 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 the demised premises for general and
executive offices and for no other purpose.
TENANT ALTERATIONS:
3. Tenant shall make no changes of any nature in or to the demised
premises without Owner's prior written consent. Subject to the
prior written
consent of Owner, and to the provisions of this Article, Tenant, at
Tenant's
expense, may make alterations,
installations, additions or improvements which are nonstructural
and which do
not affect utility services or plumbing and electrical lines, in or
to the
interior of the demised premises by using contractors or mechanics
first
approved by Owner. Tenant shall, before making any alterations,
additions,
installations or improvements, at its expense, obtain all permits,
approvals and
certificates required by any governmental or quasi-governmental
bodies and (upon
completion) certificates of final approval thereof and shall
deliver promptly
duplicates of all such permits, approvals and certificates to
Owner, and Tenant
agrees to carry and will cause Tenant's contractors and
subcontractors to carry
such workman's compensation, general liability, personal and
property damage
insurance as Owner may require. If any mechanics' lien is filed
against the
demised premises, or the building of which the same forms a part,
for work
claimed to have been done for, or materials furnished to, Tenant,
whether or not
done pursuant to this Article, the same shall be discharged by
Tenant within
thirty days thereafter, at Tenant's expense, by filing the bond
required by law.
All fixtures and all paneling, partitions, railings and like
installations,
installed in the premises at any time, either by Tenant or by Owner
in Tenant's
behalf, shall, upon installation, become the property of Owner and
shall remain
upon and be surrendered with the demised premises unless Owner, by
notice to
Tenant no later than twenty days prior to the date fixed as the
termination of
this lease, elects to relinquish Owner's right thereto and to have
them removed
by Tenant, in which event the same shall be removed from the
premises by Tenant
prior to the expiration of the lease, at Tenant's expense;
provided, however,
that Tenant shall not be obligated to remove any walls or permanent
partitions
constructed in the demised premises. Nothing in this Article shall
be construed
to give Owner title to, or to prevent Tenant's removal of, trade
fixtures,
moveable office furniture and equipment, but upon removal of any
such items from
the premises or upon removal of other installations as may be
required by Owner,
Tenant shall immediately and at its expense, repair and restore the
premises to
the condition existing prior to installation and repair any damage
to the
demised premises or the building due to such removal. All property
permitted or
required to be removed, by Tenant at the end of the term remaining
in the
premises after Tenant's removal shall be deemed abandoned and may,
at the
election of Owner, either be retained as Owner's property or may be
removed from
the premises by Owner, at Tenant's expense.
MAINTENANCE AND REPAIRS:
4. Tenant shall, throughout the term of this lease, take good care
of
the demised premises and the fixtures and appurtenances therein.
Tenant shall be
responsible for all damage or injury to the demised premises or any
other part
of the building and the systems and equipment thereof, whether
requiring
structural or nonstructural repairs caused by or resulting from
carelessness,
omission, neglect or improper conduct of Tenant, Tenant's
subtenants, agents,
employees, invitees or licensees, or which arise out of any work,
labor, service
or equipment done for or supplied to Tenant or any subtenant or
arising out of
the installation, use or operation of the property or equipment of
Tenant or any
subtenant. Tenant shall also repair all damage to the building and
the demised
premises caused by the moving of Tenant's fixtures, furniture and
equipment.
Tenant shall promptly make, at Tenant's expense, all repairs in and
to the
demised premises for
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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, the building plumbing, electrical, heating and
ventilating
systems (to the extent such systems presently exist) serving the
demised
premises and the air conditioning compressor presently serving the
demised
premises and certain other premises. Tenant agrees to give prompt
written notice
of any defective condition in the premises for which Owner may be
responsible
hereunder. There shall be no allowance to Tenant for diminution of
rental value
and no liability on the part of Owner by reason of inconvenience,
annoyance or
injury to business arising from Owner or others making repairs,
alterations,
additions or improvements in or to any portion of the building or
the demised
premises or in and to the fixtures, appurtenances or equipment
thereof. It is
specifically agreed that Tenant shall not be entitled to any setoff
or reduction
of rent by reason of any failure of Owner to comply with the
covenants of this
or any other Article of this Lease. Tenant agrees that Tenant's
sole remedy at
law in such instance will be by way of an action for damages for
breach of
contract. The provisions of this Article 4 shall not apply in the
case of fire
or other casualty which are dealt with in Article 9 hereof.
WINDOW CLEANING:
5. Tenant will not clean nor require, permit, suffer or allow any
window in the demised premises to be cleaned from the outside in
violation of
Section 202 of the Labor Law or any other applicable law or of the
Rules of the
Board of Standards and Appeals, or of any other Board or body
having or
asserting jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS:
6. Prior to the commencement of the lease term, if Tenant is then
in
possession, and at all times thereafter, Tenant, at Tenant's sole
cost and
expense, shall promptly comply with all present and future laws,
orders and
regulations of all state, federal, municipal and local governments,
departments,
commissions and boards and any direction of any public officer
pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, Insurance Services Office, or any similar body which
shall impose
any violation, order or duty upon Owner or Tenant with respect to
the demised
premises, whether or not arising out of Tenant's use or manner of
use thereof,
(including Tenant's permitted use) or, with respect to the building
if arising
out of Tenant's use or manner of use of the premises or the
building (including
the use permitted under the lease). Nothing herein shall require
Tenant to make
structural repairs or alterations unless Tenant has, by its manner
of use of the
demised premises or method of operation therein, violated any such
laws,
ordinances, orders, rules, regulations or requirements with respect
thereto.
Tenant may, after securing Owner to Owner's satisfaction against
all damages,
interest, penalties and expenses, including, but not limited to,
reasonable
attorney's fees, by cash deposit or by surety bond in an amount and
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in a company satisfactory to Owner, contest and appeal any such
laws,
ordinances, orders, rules, regulations or requirements provided
same is done
with all reasonable promptness and provided such appeal shall not
subject Owner
to prosecution for a criminal offense or constitute a default under
any lease or
mortgage under which Owner may be obligated, or cause the demised
premises or
any part thereof to be condemned or vacated. Tenant shall not do or
permit any
act or thing to be done in or to the demised premises which is
contrary to law,
or which will invalidate or be in conflict with public liability,
fire or other
policies of insurance at any time carried by or for the benefit of
Owner with
respect to the demised premises or the building of which the
demised premises
form a part, or which shall or might subject Owner to any liability
or
responsibility to any person or for property damage. Tenant shall
not keep
anything in the demised premises except as now or hereafter
permitted by the
Fire Department, Board of Fire Underwriters, Fire Insurance Rating
Organization
or other authority having jurisdiction, and then only in such
manner and such
quantity so as not to increase the rate for fire insurance
applicable to the
building, nor use the premises in a manner which will increase the
insurance
rate for the building or any property located therein over that in
effect 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 rate shall, at the beginning of
this lease or
at any time thereafter; be higher than it otherwise would be, then
Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of
all fire
insurance premiums thereafter paid by Owner which shall have been
charged
because of such failure by Tenant. In any action or proceeding
wherein Owner and
Tenant are parties, a schedule or "make-up" of rate for the
building or demised
premises issued by the New York Fire Insurance Exchange, or other
body making
fire insurance rates applicable to said premises shall be
conclusive evidence of
the facts therein stated and of several items and charges in the
fire insurance
rates then applicable to said premises. Tenants 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 positions of all safes, business
machines and
mechanical equipment. Such installations shall be placed and
maintained by
Tenant, at Tenant's expense, in settings sufficient, in Owner's
judgment, to
absorb and prevent vibration, noise and annoyance.
SUBORDINATION:
7. This lease is subject and subordinate to all ground or
underlying
leases and to all mortgages which may now or hereafter affect such
leases or the
real property of which demised premises are a part and to all
renewals,
modifications, consolidations, replacements and extensions of any
such
underlying leases and mortgages. This clause shall be
self-operative and no
further instrument of subordination shall be required by any ground
or
underlying lessor or by any mortgage, affecting any lease or the
real property
of which the demised premises are a part. In confirmation of such
subordination,
Tenant shall execute promptly any certificate that Owner may
request. Owner
represents that
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there are no ground leases affecting the real property of which the
demised
premises are a part.
PROPERTY--LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY:
8. Owner or its agents shall not be liable for any damage to
property
of Tenant or of others entrusted to employees of the building, nor
for loss of
or damage to any property of Tenant by theft or otherwise, nor for
any injury or
damage to persons or property resulting from any cause of
whatsoever nature,
unless caused by or due to the negligence of Owner, its agents,
servants or
employees. Owner or its agents will not be liable for any such
damage caused by
other tenants or persons in, upon or about said building or caused
by operations
in construction of any private, public or quasi-public work. If at
any time any
windows of the demised premises are temporarily closed, darkened or
bricked up
(or permanently closed, darkened or bricked up, if required by law)
for any
reason whatsoever including, but not limited to Owner's own acts,
Owner shall
not be liable for any damage Tenant may sustain thereby and Tenant
shall not be
entitled to any compensation therefore nor abatement or diminution
of rent nor
shall the same release Tenant from its obligations hereunder nor
constitute an
eviction. Tenant shall indemnify and save harmless Owner against
and from all
liabilities, obligations, damages, penalties, claims, costs and
expenses for
which Owner shall not be reimbursed by insurance, including
reasonable
attorneys' fees, paid, suffered or incurred as a result of any
breach by Tenant,
Tenant's agents, contractors, employees, invitees, or licensees, of
any covenant
or condition of this lease, or the carelessness, negligence or
improper conduct
of the Tenant, Tenant's agents, contractors, employees, invitees or
licensees.
Tenant's liability under this lease extends to the acts and
omissions of any
subtenant, and any agent, contractor, employee, invitee or licensee
of any
sub-tenant. In case any action or proceeding is brought against
Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at
Tenant's
expense, resist or defend such action or proceeding by counsel
approved by Owner
in writing, such approval not to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice
hereof to Owner
and this lease shall continue in full force and effect except as
hereinafter set
forth. (b) If the demised premises are partially damaged or
rendered partially
unusable by fire or other casualty, the damages thereto shall be
repaired by and
at the expense of Owner and the rent, until such repair shall be
substantially
completed, shall be apportioned from the day following the casualty
according to
the part of the premises which is usable. (c) If the demised
premises are
totally damaged or rendered wholly unusable by fire or other
casualty, then the
rent shall be proportionately paid up to the time of the casualty
and
thenceforth shall cease until the date when the premises shall have
been
repaired and restored by Owner, subject to Owner's right to elect
not to restore
the same as hereinafter provided. (d) If the demised premises are
rendered
wholly unusable or (whether or not the demised premises are damaged
in whole or
in part) if the building shall be so damaged that Owner shall
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decide to demolish it or to renovate or rebuild it, then, in any of
such events,
Owner may elect to terminate this lease by written notice to
Tenant, given
within 60 days after such fire or casualty, specifying a date for
the expiration
of the lease, which date shall not be more than 60 days after the
giving of such
notice. In addition, if the demised premises are rendered wholly
unusable and
Owner determines that the demised premises cannot reasonably be
repaired and
restored to substantially the same condition as the demised
premises were in
immediately prior to such fire or casualty within 180 days after
such fire or
casualty, Tenant may elect to terminate this lease by written
notice to Owner,
given within 60 days after such fire or casualty, specifying a date
for the
expiration of the lease, which date shall not be more than 10 days
after the
giving of such notice. Upon the date specified in any such notice
of termination
from Owner or Tenant, the term of this lease shall expire as fully
and
completely as if such date were the date set forth above for the
termination of
this lease and Tenant shall forthwith quit, surrender and vacate
the premises
without prejudice however, to Landlord's rights and remedies
against Tenant
under the lease provisions in effect prior to such termination, and
any rent
owing shall be paid up to such date and any payments of rent made
by Tenant
which were on account of any period subsequent to such date shall
be returned to
Tenant. Unless Owner or Tenant shall serve a termination notice as
provided for
herein, Owner shall make the repairs and restorations under the
conditions of
(b) and (c) hereof, with all reasonable expedition, subject to
delays due to
adjustment of insurance claims, labor troubles and causes beyond
Owner's
control. After any such casualty, Tenant shall cooperate with
Owner's
restoration by removing from the premises as promptly as reasonably
possible,
all of Tenant's salvageable inventory and movable equipment,
furniture, and
other property. Tenant's liability for rent shall resume five (5)
days after
written notice from Owner that the premises are substantially ready
for Tenant's
occupancy. (e) Nothing contained hereinabove shall relieve Tenant
from liability
that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any
insurance in
its favor before making any claim against the other party for
recovery for loss
or damage resulting from fire or other casualty, and to the extent
that such
insurance is in force and collectible and to the extent permitted
by law, Owner
and Tenant each hereby releases and waives all right of recovery
against the
other or any one claiming through or under each of them by way of
subrogation or
otherwise. The foregoing release and waiver shall be in force only
if both
releasors' insurance policies contain a clause providing that such
a release or
waiver shall not invalidate the insurance. 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 ten
days after
written demand or shall be deemed to have agreed that the party
obtaining
insurance coverage shall be free of any further obligation under
the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges
that Owner
will not carry insurance on Tenant's furniture and/or furnishings
or any
fixtures or equipment, improvements, or appurtenances removable by
Tenant and
agrees that Owner will not be obligated to repair any damage
thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of
the Real
Property Law and agrees that the provisions of this Article shall
govern and
control in lieu thereof.
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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.
ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns,
expressly
covenants that it shall not assign, mortgage or encumber this
agreement, nor
underlet, or suffer or permit the demised premises or any part
thereof to be
used by others, without the prior written consent of Owner in each
instance.
Transfer of the majority of the stock of a corporate Tenant shall
be deemed an
assignment. If this lease be assigned, or if the demised premises
or any part
thereof be underlet or occupied by anybody 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, are to be added in the RIDER attached hereto.
Tenant
covenants and agrees that at all times its use of electric current
shall not
exceed the capacity of existing feeders to the building or the
risers or wiring
installation and Tenant may not use any electrical equipment which,
in Owner's
opinion, reasonably exercised, will overload such installations or
interfere
with the use thereof by other tenants of the building. The change
at any time of
the character of electric service shall in no 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 demised premises in any emergency at any
time, and, at
other reasonable times upon reasonable notice to Tenant, to examine
the same and
to make such repairs, replacements and improvements or additions
and alterations
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
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necessary materials and equipment into said premises without the
same
constituting an eviction, nor shall the Tenant be entitled to any
abatement of
rent while such work is in progress nor to any damages by reason of
loss or
interruption of business or otherwise. Throughout the term hereof
Owner shall
have the right to enter the demised premises at reasonable hours
for the purpose
of showing the same to prospective purchasers or mortgagees of the
building, and
during the last six months of the term for the purpose of showing
the same to
prospective tenants. If Tenant is not present to open and permit an
entry into
the premises, Owner or Owner's agents may enter the same whenever
such entry may
be necessary or permissible, by master key or forcibly, and,
provided reasonable
care is exercised to safeguard Tenant's property, such entry shall
not render
Owner or its agents liable therefor, nor in any event shall the
obligations of
Tenant hereunder be affected. If during the last month of the term
Tenant shall
have removed all or substantially all of Tenant's property
therefrom, Owner may
immediately enter, alter, renovate or redecorate the demised
premises without
limitation or abatement of rent, or incurring liability to Tenant
for any
compensation, and such act shall have no effect on this lease or
Tenant's
obligations hereunder.
VAULT, VAULT SPACE, AREA:
14. No vaults, vault space or area, whether or not enclosed or
covered, not within the property line of the building is leased
hereunder,
anything contained in or indicated on any sketch, blue print or
plan, or
anything contained elsewhere in this lease to the contrary
notwithstanding.
Owner makes no representation as to the location of the property
line of the
building. All vaults and vault space and all such areas not within
the property
line of the building, which Tenant may be permitted to use and/or
occupy, is to
be used and/or occupied under a revocable license, and if any such
license be
revoked, or if the amount of such space or area be diminished or
required by any
federal, state or municipal authority or public utility, Owner
shall not be
subject to any liability, nor shall Tenant be entitled to any
compensation or
diminution or abatement of rent, nor shall such revocation,
diminution or
requisition be deemed constructive or actual eviction. Any tax, fee
or charge of
municipal authorities for such vault or area shall be paid by
Tenant.
OCCUPANCY:
15. Tenant will not at any time use or occupy the demised premises
in
violation of the certificate of occupancy issued for the building
of which the
demised premises are a part. Tenant has inspected the premises and
accepts them
as is, subject to the riders annexed hereto with respect to Owner's
work, if
any. In any event, Owner makes no representation as to the
condition of the
premises and Tenant agrees to accept the same subject to
violations, whether or
not of record.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be canceled 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
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the debtor; or (2) the making by Tenant of an assignment or any
other
arrangement for the benefit of creditors under any state statute;
or (3) the
appointment of a receiver, trustee, custodian or similar officer
for Tenant or
for all or a substantial portion of Tenant's assets. Neither Tenant
nor any
person claiming through or under Tenant, or by reason of any
statute or order of
court, shall thereafter be entitled to possession of the premises
demised but
shall forthwith quit and surrender the premises. If this lease
shall be assigned
in accordance with its terms, the provisions of this Article 16
shall be
applicable only to the party then owning Tenant's interest in this
lease.
(b) It is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall
forthwith,
notwithstanding any other provisions of this lease to the contrary,
be entitled
to recover from Tenant as and for liquidated damages an amount
equal to the
difference between the rent and additional rent reserved hereunder
for the
unexpired portion of the term demised and the fair and reasonable
rental value
of the demised premises (including the additional rent) for the
same period
(conclusively presuming the additional rent for each year thereof
to be the same
as was payable for the year immediately preceding the termination
of this
lease). In the computation of such damages the difference between
any
installment of rent becoming due hereunder after the date of
termination and the
fair and reasonable rental value of the demised premises for the
period for
which such installment was payable shall be discounted to the date
of
termination at the rate of four percent (4%) per annum. If such
premises or any
part thereof be relet by the Owner for the unexpired term of said
lease, or any
part thereof, before presentation of proof of such liquidated
damages to any
court, commission or tribunal, the amount of rent reserved upon
such relating
shall be deemed to be the fair and reasonable rental value for the
part or the
whole of the premises so re-let during the term of the re-letting.
Nothing
herein contained shall limit or prejudice the right of the Owner to
prove for
and obtain as liquidated damages by reason of such termination, an
amount equal
to the maximum allowed by any statute or rule of law in effect at
the time when,
and governing the proceedings in which, such damages are to be
proved, whether
or not such amount be greater, equal to, or less than the amount of
the
difference referred to above.
DEFAULT:
17. (1) If Tenant defaults in fulfilling any of the covenants of
this
lease other than the covenants for the payment of rent or
additional rent; or if
the demised premises, becomes vacant or deserted; or if any
execution or
attachment shall be issued against Tenant or any of Tenant's
property whereupon
the demised premises shall be taken or occupied by someone other
than Tenant; or
if this lease be rejected under Section 365 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 fifteen (15) days after the commencement of the
term of this
lease; or if Tenant shall be in default under any other lease for
space in the
building, then, in any one or more of such events, upon Owner
serving a written
five (5) days notice upon Tenant specifying the nature of said
default and upon
the expiration of said five (5) days, if Tenant shall have failed
to comply with
or remedy such default, or if
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the said default or omission complained of shall be of a nature
that the same
cannot be completely cured or remedied within said five (5) day
period, and if
Tenant shall not have diligently commenced curing such default
within said five
(5) day period, or shall not thereafter with reasonable diligence
and in good
faith, proceed to remedy or cure such default, then Owner may serve
a written
three (3) days' notice of cancellation of this lease upon Tenant,
and upon the
expiration of said three (3) days this lease and the term
thereunder shall end
and expire as fully and completely as if the expiration of such
three (3) day
period were the day herein definitely fixed for the end and
expiration of this
lease and the term 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 of this lease, Owner may cancel and
terminate such
renewal or extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the rent and
additional rent
shall become due thereupon and be paid up to the time of such
re-entry,
dispossess and/or expiration, (b) Owner may (but shall not be
obligated to)
re-let the demised premises or any part or parts thereof, either in
the name of
Owner or otherwise, for a term or terms, which may at Owner's
option be less
than or exceed the period which would otherwise have constituted
the balance of
the term of this lease and may grant concessions or free rent or
charge a higher
rental than that in this lease, and/or (c) Tenant or the legal
representatives
of Tenant shall also pay Owner as liquidated damages for the
failure of Tenant
to observe and perform said Tenant's covenants herein contained,
any deficiency
between the rent and additional rent hereby reserved and/or
covenanted to be
paid and the net amount, if any, of the rent and additional rent
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 demised premises or any
part or parts
thereof shall not release or affect Tenant's liability for damages.
In computing
such liquidated damages there shall be added to the said deficiency
such
expenses as Owner may incur in connection with re-letting, such as
legal
expenses, attorneys' fees, brokerage, advertising and alteration
costs and for
keeping the demised premises in good order or for preparing the
same for
re-letting. Any such liquidated
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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 or necessary for the purpose of re-letting the
demised
premises, and the making of such alterations, repairs,
replacements, and/or
decorations shall not operate or be construed to release Tenant
from liability
hereunder as aforesaid. Owner shall in no event be liable in any
way whatsoever
for failure to re-let the demised premises, or in the event that
the demised
premises are re-let, for failure to collect the rent and additional
rent thereof
under such re-letting, and in no event shall Tenant be entitled to
receive any
excess, if any, of such net rents collected over the sums payable
by Tenant to
Owner hereunder. In the event of a breach or threatened breach by
Tenant of any
of the covenants or provisions hereof, Owner shall have the right
of injunction
and the right to invoke any remedy allowed at law or in equity as
if re-entry,
summary proceedings and other remedies were not herein provided
for. Mention in
this lease of any particular remedy, shall not preclude Owner from
any other
remedy, in law or in equity. Tenant hereby expressly waives any and
all rights
of redemption granted by or under any present or future laws in the
event of
Tenant being evicted or dispossessed for any cause, or in the event
of Owner
obtaining possession of demised premises, by reason of the
violation by Tenant
of any of the covenants and conditions of this lease, or otherwise.
FEES AND EXPENSES:
19. If Tenant shall default in the observance or performance of any
term or covenant on Tenant's part to be observed or performed under
or by virtue
of any of the terms or provisions in any Article of this lease,
then, unless
otherwise provided elsewhere in this lease, Owner may immediately
or at any time
thereafter and without notice perform the obligation of Tenant
thereunder. If
Owner, in connection with the foregoing or in connection with any
default by
Tenant in the covenant to pay rent hereunder, makes any
expenditures or incurs
any obligations for the payment of money, including but not limited
to
attorney's fees, in instituting, prosecuting or defending any
action or
proceeding, then Tenant will reimburse Owner for such sums so paid
or
obligations incurred with interest and costs. The foregoing
expenses incurred by
reason of Tenant's default shall be deemed to be additional rent
hereunder and
shall be paid by Tenant to Owner within five (5) days of rendition
of any bill
or statement to Tenant thereof. 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, upon reasonable notice
to
Tenant, 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
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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 or
business visitors as the Owner may deem necessary for the security
of the
building and its occupants.
Owner reserves the right to change the address of the building
and/or
to place signs above the entrances to the building at any time and
from time to
time. Neither this Lease nor any use by Tenant shall give Tenant
any easement or
other right in or to the use of any door or any passage or any
concourse or any
plaza connecting the building with any subway or any other building
or to any
public conveniences, or to any particular entrance ways to public
streets, and
the use of such doors, passages, concourses, plazas, entrance ways
and
conveniences may without notice to Tenant, be regulated or
discontinued at any
time by Landlord.
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 this lease. Tenant has inspected the building
and the
demised premises and is thoroughly acquainted with their condition
and agrees to
take the same "as is" and acknowledges that the taking of
possession of the
demised premises by Tenant shall be conclusive evidence that the
said premises
and the building of which the same form a part were in good and
satisfactory
condition at the time such possession was so taken, except as to
latent defects.
All understandings and agreements heretofore made between the
parties hereto are
merged in this contract, which alone fully and completely expresses
the
agreement between Owner and Tenant and any executor 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 the
last day of the term of this Lease or any renewal thereof,
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falls on Sunday, this lease shall expire at noon on the preceding
Saturday,
unless it be a legal holiday, in which case it shall expire at noon
on the
preceding business day.
QUIET ENJOYMENT:
23. Owner covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the
terms,
covenants and conditions, on Tenant's part to be observed and
performed, Tenant
may peaceably and quietly enjoy the premises hereby demised,
subject,
nevertheless, to the terms and conditions of this lease including,
but not
limited to, Article 30 hereof and to the ground leases, underlying
leases and
mortgages hereinbefore mentioned.
FAILURE TO GIVE POSSESSION:
24. If Owner is unable to give possession of the demised premises
on
the date of the commencement of the term hereof, because of the
holding-over or
retention of possession of any tenant, undertenant or occupants or
if the
demised premises are located in a building being constructed,
because such
building has not been sufficiently completed to make the premises
ready for
occupancy or because of the fact that a certificate of occupancy
has not been
procured or for any other reason, Owner shall not be subject to any
liability
for failure to give possession on said date and the validity of the
lease shall
not be impaired under such circumstances, nor shall the same be
construed in any
wise to extend the term of this lease, but the rent payable
hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to
obtain
possession) until after Owner shall have given Tenant written
notice that the
premises are substantially ready for Tenant's occupancy. If
permission is given
to Tenant to enter into the possession of the demised premises or
to occupy
premises other than the demised premises prior to the date
specified as the
commencement of the term of this lease, Tenant covenants and agrees
that such
occupancy shall be deemed to be under all the terms, covenants,
conditions and
provisions of this lease, except as to the covenant to pay rent.
The provisions
of this Article are intended to constitute "an express provision to
the
contrary" within the meaning of Section 223-a of the New York Real
Property Law.
NO WAIVER:
25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of
this lease or
of any of the Rules or Regulations set forth or hereafter adopted
by Owner,
shall not prevent a subsequent act which would have originally
constituted a
violation from having all the force and effect of an original
violation. The
receipt by Owner of rent with knowledge of the breach of any
covenant of this
lease shall not be deemed a waiver of such breach and no provision
of this lease
shall be deemed to have been waived by Owner unless such waiver be
in writing
signed by Owner. No payment by Tenant or receipt by Owner of a
lesser amount
than the monthly rent herein stipulated shall be deemed to be other
than on
account of the earliest stipulated rent, nor shall any endorsement
or statement
of any check or any letter accompanying any check or payment as
rent be deemed
an accord and satisfaction, and Owner may accept such check or
payment without
prejudice to Owner's right to recover
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the balance of such rent or pursue any other remedy provided in
this lease. No
act or thing done by Owner or Owner's agents during the term hereby
demised
shall be deemed an acceptance of a surrender of said premises, and
no agreement
to accept such surrender shall be valid unless in writing signed by
Owner. No
employee of Owner or Owner's agent shall have any power to accept
the keys of
said premises prior to the termination of the lease and the
delivery of keys to
any such agent or employee shall not operate as 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, Tenant's use of or occupancy of
said premises,
and any emergency statutory or any other statutory remedy. It is
further
mutually agreed that in the event Owner commences any summary
proceeding for
possession of the premises, Tenant will not interpose any
counterclaim of
whatever nature or description in any such proceeding including a
counterclaim
under Article 4.
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 the
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 expressed or implied to be
supplied or
is unable to make, or is delayed in making, any repair, additions,
alterations
or decorations or is unable to supply, or is delayed in supplying,
any equipment
or fixtures if Owner is prevented or delayed from so doing by
reason of strike
or labor troubles or any cause whatsoever including, but not
limited to,
government preemption in connection with a national emergency or by
reason of
any rule, order or regulation of any department or subdivision
thereof of any
government agency or by reason of the conditions of supply and
demand which have
been or are affected by war or other emergency.
BILLS AND NOTICES:
28. Except as otherwise provided in this lease, 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
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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 OWNER:
29. As long as Tenant is not in default under any of the covenants
of
this lease, Owner shall provide: (a) necessary elevator facilities
on business
days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m.
and have one
elevator subject to call at all other times; (b) heat to the
demised premises
when and as required by law, on business days from 8 am. to 6 p.m.
and on
Saturdays from 8 a.m. to 1 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
in good working order and repair, to register such water
consumption, and Tenant
shall pay for water consumed as shown on said meter as additional
rent as and
when bills are rendered; (d) cleaning service for the demised
premises on
business days at Owner's expense provided that the same are kept in
order by
Tenant. If, however, said premises are to be kept clean by Tenant,
it shall be
done at Tenant's so
