Preview
FILED: NEW YORK COUNTY CLERK 05/29/2024 03:45 PM INDEX NO. 652753/2024
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/29/2024
ST AND ARD FORM OF STORE LEASE
The Real Eslale Boa, d of New York, Inc,
Februa
February ry
13th
13th
Agreement of Lease, made as of this _ _ _ _ _ day of January, 2017, between
EMPIRE BROOME LLC,
party of the first part, hereinafter referred to as OWNER and/or LANDLORD, and
DRAKE'S CROSBY LLC d/b/a DRAKE'S,
party of the second part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner -- APPROXIMATELY 1,000 SQUARE FEET ON GROUND
FLOOR TOGETHER WITH BASEMENT (EXCLUDING SUB-BASEMENT)
in the building known as 430 BROOME STREET a/k/a 39,5 CROSBY STREET
in the Borough ofManhallan, City of New York, for the term of five (5) Years (or until such term shall sooner cease and expire as hereinafter provided) to commence
on the first day of February, 2017, and to end on the las! day of January, 2022, both dates inclusive, al an Annual Rental Rate of
which Tenant agrees lo pay in lawful money oflhe United Slates, which shall be legal tende, 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 te1111, 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 Q!iE_monthly installment on the execution hereof(unless this Lease be a
renewal).
In the event that, al the commencement oflhe term of this Lease, or thereafter, Tenant shall be in default in the payment of Rent to Owner pursuant to the
lenns ofenother lease with Owner or with Owner's predecessor-in-interest, Owner may, al Owner's option and without notice to Tenant, add the amount of such
an-ea,s to any monthly installment of Rent payable hereunder and the same shall be payable lo Owner as Additional Rent.
The parties hereto, for themselves, their heirs, distribulees, 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 retail sale of menswear and women's apparel, accessories,
shoes, and/or items related to the foregoing, and associated Drake's products, and for no other purpose. Tenant shall, at all times, conduct its
business in a high grade and reputable manner, shall not violate Article 37 hereof, and shall keep show windows and signs in a neat and clean
condition.
Alterations: 3. Tenant shall make no changes in or to the Demised Premises of any nature without Owner's prior written
consent. Subject to the prior written consent of Owner, and to the provisions of this Article, Tenant, at Tenant's expense, may make alterations,
installations, additions or improvements which are 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, installations or improvements, at its expense, obtain all perm its, approvals and certificates required by any
governmental or quasi-governmental bodies and (upon completion) certificates of final approval thereof and shall promptly deliver duplicates of
all such permits, approvals and certificates to Owner, and Tenant agrees to carry and will cause Tenant's contractors and sub-contractors to carry
such workman's compensation, general liability, personal and property damage insurance as Owner may require. If any mechanic's lien is filed
against the Demised Premises, or the Building of which the same forms a part, for work claimed to have done for, or materials furnished to,
Tenant, whether or not done pursuant to this Article, the same shall be discharged by Tenant within thirty (30) days thereafter, at Tenant's
expense, by payment or 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 on Tenant's behalf, shall, upon installation, become the property of Owner and shall remain
upon and be surrendered with the Demised Premises unless Owner, by notice to Tenant no later than twenty (20) days prior to the date fixed as
the termination of this Lease, elects to relinquish Owner's rights 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. Nothing in this Article shall be construed to give
Owner title to or to prevent Tenant's removal of trade fixtures, moveable office furniture and equipment, but upon removal of any such from the
Premises or upon removal of other installations as may be required by Owner, Tenant shall immediately, and at its expense, repair and restore the
Premises to the condition existing prior to installation and repair any damage to the Demised Premises or the Building due to such removal. All
property permitted or required to be removed by Tenant at the end of the term remaining in the Premises after Tenant's removal shall be deemed
abandoned and may, at the election of Owner, either be retained as Owner's property or may be removed from the Premises by Owner at Tenant's
expense.
Repnirs: 4. Owner shall maintain and repair the public portions of the Building, both exterior and interior, except that if
Owner allows Tenant to erect on the outside of the Building a sign or signs, or a hoist, lift or sidewalk elevator for the exclusive use of Tenant,
Tenant shall maintain such exterior installations in good appearance and shall cause the same to be operated in a good and workmanlike manner
and shall make all repairs thereto necessary to keep same in good order and condition, at Tenant's own cost and expense; and shall cause the same
to be covered by the insurance provided for hereafter in Article 8. Tenant shall, throughout the term of this Lease, take good care of the Demised
Premises and the fixtures and appurtenances therein, and the sidewalks including maintenance and repair and snow removal and cleaning adjacent
thereto, and at its sole cost and expense, make all non-structural repairs thereto as and when needed to preserve them in good working order and
condition, reasonable wear and tear, obsolescence and damage from the elements fire or other casualty, excepted. If the Demised Premises be or
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become infested with vennin, Tenant shall at Tenant's expense, cause the same to be exterminated from time to time to the satisfaction of Owner,
Except as specifically provided in Article 9 or elsewhere in this Lease, there shall be no allowance to the Tenant for the diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or injury to business arising from Owner, Tenant or others making
or failing to make any repairs, alterations, additions or improvements in or to any portion of the Building, including the erection or operation of
any crane, derrick or sidewalk shed, or in or to the Demised Premises or the fixtures, appurtenances or equipment thereof. It is specifically agreed
that Tenant shall be not 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 ofan action for damages for breach of
Contract. The provisions of this Article 4 with respect to the making of repairs shall not apply in the case of fire or other Casualty 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 New York State Labor Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting jurisdiction.
Requirements
of Law, Fire
Insurance: 6. Prior to 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 ofany public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters or the Insurance Services Office, or any similar body which shall impose any
violation, order or duty upon Owner or Tenant with respect to the Demised Premises, and with respect to the portion of the sidewalk adjacent to
the Premises, if the Premises are on the street level, whether or not arising out of Tenant's use or manner of use thereof, or with respect to the
Building if arising out of Tenant's use or manner of use of the Premises or the Building (including the use permitted under the Lease). Except as
provided in Article 29 hereof, nothing herein shall require Tenant to make structural repairs or alterations unless Tenant has by its manner of use
of the Demised Premises or method of operation therein, violated any such laws, ordinances, orders, rules, regulations or requirements with
respect thereto. Tenant shall not do or permit any act or thing to be done in or to the Demised Premises which is contrary to law, or which will
invalidate or be in conflict with public liability, fire or other policies of insurance at any time carried by or, for the benefit of Owner. Tenant shall
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. If the fire insurance rate shall be, at the beginning of the Lease or at any time thereafter, 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 to comply with the terms of this Article. 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 a body making fire insurance rates
applicable to said Premises shall be conclusive evidence of the facts therein stated and of the several items and charges in the fire insurance rate
then applicable to said Premises.
Subordination: 7. This Lease is subject and subordinate to all ground or underlying leases and to all mortgages which may now
or hereafter affect such leases or the real property of which Demised Premises are a part and to all renewals, modifications, consolidations,
replacements and extensions of any such underlying leases and mortgages. This clause shall be self-operative and no further instrument of
subordination shall be required by any ground or underlying lessor or by any mortgagee, affecting any lease or the real property of which the
Demised Premises are a part. In confirmation of such subordination, Tenant shall from time to time execute promptly any certificate that Owner
may request.
Tenant's Liability
Insurance
Property Loss,
Damage, Indemnity: 8. Owner, or its agents, shall not be liable for any damage to property of Tenant or of others entrusted to
employees of the Building, nor for loss of or damage to any property of Tenant by theft or other wise, 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 Tenant agrees, at Tenant's sole cost and expense, to maintain general public
liability insurance in standard form in favor of Owner and Tenant against claims for bodily injury or death or property damage occurring in or
upon the Demised Premises, effective from the date Tenant enters into possession and during the term of this Lease. Such insurance shall be in an
amount and with carriers acceptable to the Owner. Such policy or policies shall be delivered to the Owner. On Tenant's default in obtaining or
delivering any such policy or policies or failure to pay the charges therefor, Owner may secure or pay the charges for any such policy or policies
and charge the Tenant as Additional Rent therefor. 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 agent, contractors, employees, invitees, or licensees, of any covenant on
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 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 Tenant's expense, resist or defend such action or proceeding by counsel approved by Owner in writing, such approval not to
be unreasonably withheld.
Casualty: 9. (a) If the Demised Premises, or any part thereof, shall be damaged by fire or other casualty, Tenant
shall give immediate notice thereof to Owner and this Lease shall continue in full force and effect except as hereinafter set forth.
(b) If the Demised Premises are partially damaged or rendered partially unusable by fire or other
casualty, the damages thereto shall be repaired by and at the expense of Owner and the Rent and other items of Additional Rent, until such repair
shall be substantially completed, shall be apportioned from the day following the casualty according to the part of the Premises which is usable.
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(c) If the Demised Premises are totally damaged or rendered wholly unusable by fire or other
casualty, then the Rent and other items of Additional Rent as hereinafter expressly provided shall be proportionately paid up to the time of the
casualty and thenceforth shall cease until the date when the Premises shall have been repaired and restored by Owner (or sooner reoccupied in
part by Tenant then Rent shall be apportioned as provided in subsection (b) above), subject to Owner's right to elect not to restore the same as
hereinafter provided
(d) If the Demised Premises are rendered wholly unusable or (whether or not the Demised Premises
are damaged in whole or in part) if the Building shall be so damaged that Owner shall decide to demolish it, then, in such events, Owner may
elect to terminate this Lease by written notice to Tenant given within ninety (90) days after such fire or casualty or thirty (30) days after
adjustment of the insurance claim for such fire or casualty, whichever is sooner, specifying a date for the expiration of the Lease, which date shall
not be more than sixty (60) days after the giving of such notice, and upon the date specified in such notice the term of this Lease shall expire as
fully and completely as if such date were the date set forth above for the termination of this Lease and Tenant shall forthwith quit, surrender and
vacate the Premises without prejudice however, to Owner's rights and remedies against Tenant under the Lease Provisions in effect prior to such
termination, and any Rent owing shall be paid up to such date and any payments of Rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant. Unless Owner shall serve a Termination Notice as provided for herein, Owner shall make the
repairs and restorations under the conditions of(b) and (c) hereof, with all reasonable expedition subject to delays due to adjustment of insurance
claims, labor troubles and causes beyond Owner's control. After any such casualty, Tenant shall cooperate with Owner's restoration by removing
from the Premises, as promptly as reasonably possible, all of Tenant's salvageable inventory and movable equipment, furniture, and other
property. Tenant's liability for Rent shall resume five (5) days after written notice from Owner that the Premises are substantially ready for
Tenant's occupancy.
(e) Nothing contained hereinabove shall relieve Tenant from liability that may exist as a result of
damage from fire or other casualty. Notwithstanding the foregoing, including Owner's obligation to restore under subparagraph (b) above, each
party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from
fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law, Owner and Tenant each
hereby releases and waives all right of recovery with respect to subparagraphs (b), (d) and (e) above, against the other or 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 in force only if both releasors' insurance policies contain a clause providing that such a release or waiver
shall not invalidate the insurance. 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.
(t) Tenant hereby waives the provisions of Section 227 of the Real Property Law and agrees that the
provisions of this Article shall govern and control in lieu thereof
Eminent
Domain: 10. If the whole or any part of the Demised Premises shall be acquired or condemned by Eminent Domain for
any public or quasi public use or purpose, then and in that event, the term of this Lease shall cease and terminate from the date of title vesting in
such proceeding and Tenant shall have no claim for the value of any unexpired term of said Lease. Tenant shall have the right to make an
independent claim to the condemning authority for the value of Tenant's moving expenses and personal property, trade fixtures and equipment,
provided Tenant is entitled pursuant to the terms of the Lease to remove such property, trade fixtures and equipment at the end of the term and
provided further such claim does not reduce Owner's award.
Assignment,
Mortgage, Etc.: 11. Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and
assigns expressly covenants that it shall not assign, mortgage or encumber this Agreement, nor underlet, or suffer or permit the Demised Premises
or any part thereof to be used by others without the prior written consent of Owner in each instance. Transfer of the majority of the stock of a
corporate tenant or the majority partnership interest ofa partnership tenant shall be deemed an assignment. If this Lease be assigned, or if the
Demised Premises or any part thereof be underlet or occupied by anybody other than Tenant, Owner may, after default by Tenant, collect Rent
from the assignee, under-tenant or occupant, and apply the net amount collected to the Rent herein reserved, but no such assignment, underletting,
occupancy or collection shall be deemed a waiver of the 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 sub-metering or Rent inclusion, as the case may be, to be added in RIDER
attached hereto Tenant covenants and agrees that at all times its use of electric current shall not exceed the capacity of existing feeders to the
Building or the risers or wiring installation and Tenant may not use any electrical equipment which, in Owner's opinion, reasonably exercised,
will overload such installations or interfere with the use thereof by other tenants of the Building. The change at any time of the character of
electric service shall in no way make Owner liable or responsible to Tenant for any loss, damages or expenses which Tenant may sustain.
Access to Premises: 13. Owner, or Owner's agents, shall have the right (but shall not be obligated) to enter the Demised Premises in
any emergency at any time, and at other reasonable times to examine the same and to make such repairs, replacements and improvements as
Owner may deem necessary and reasonably desirable to any portion of the Building, or which Owner may elect to perform in the Premises
following Tenant's failure to make repairs or perform any work which Tenant is obligated to perform under this Lease, or for the purpose of
complying with laws, regulations and other directions of governmental authorities. Tenant shall permit Owner to use and maintain and replace
pipes and conduits in and through the Demised Premises and to erect new pipes and conduits therein, provided they are concealed within the
walls, floors or ceiling wherever practicable. Owner may, during the progress of any work in the Demised Premises, take all necessary materials
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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 (6) months of the term for the purpose of showing the same to prospective tenants and may, during said six (6)
month period, place upon the Demised Premises the usual notice "To Let" and "For Sale" which notices Tenant shall permit to remain thereon
without molestation. If Tenant is not present to open and permit an entry into the Demised Premises, Owner, or Owner's agents, may enter the
same whenever such entry may be necessary or permissible by master key or forcibly and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Owner, or its agents, liable therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If, during the last month of 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. Owner shall have the right at any time,
without the same constituting an eviction and without incurring liability to Tenant therefor to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets, or other public parts of the building and to change the name, number
or designation by which the Building may be known,
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.
Occupancy: 15. Tenant will not, at any time, use or occupy the Demised Premises in violation of Articles 2 or 37 hereof, or
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 Rider annexed hereto with respect to Owner's Work, if any. In any event, Owner makes no representation as to the
condition of the Premises and Tenant agrees to accept the same subject to violations whether or not of record.
Bankruptcy: 16. (a) Anything elsewhere in this Lease to the contrary notwithstanding, this Lease may be cancelled by
Owner by the sending ofa written notice to Tenant within a reasonable time after the happening of anyone or more of the following events:
( 1) the commencement of a case in bankruptcy or under the laws of any state naming
Tenant as the debtor; or
(2) the making by Tenant of an assignment or any other arrangement for the benefit of
creditors under any state statute. Neither Tenant, nor any person claiming through or under Tenant, or by reason of any statute or order of court,
shall thereafter be entitled to possession of the Premises demised but shall forthwith quit and surrender the Premises. If this Lease shall be
assigned in accordance with its terms, the provisions of this Article 16 shall be applicable only to the party then owning Tenant's interest in this
Lease.
(b) It is stipulated and agreed that in the event of the termination of this Lease pursuant to
(16)(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 of said Lease, or any part thereof, before presentation ofproofof
such Iiquidated damages to any court, commission or tribunal, the amount of Rent reserved upon such re-letting 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. (I) 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 become vacant or deserted; or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the Demised Premises shall be taken or occupied by someone other than Tenant; or if this
Lease be rejected under Section 365 of Title II 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, of which fact Owner shall be the sole judge; then, in any one
or more of such events, upon Owner serving a written fifteen ( 15) days notice upon Tenant specifying the nature of said default and upon the
expiration of said fifteen (15) days, if Tenant shall have failed to comply with or remedy such default, or if the said default or omission
complained of shall be ofa 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 five (5) days notice of cancellation of upon Tenant, and upon
the expiration of said five (5) days, this Lease and the term thereunder shall end and expire as fully and completely as if the expiration of such
five (5) day period were the day herein definitely fixed for the end and expiration of this Lease and the term thereof and Tenant shall then quit
and surrender the Demised Premises to Owner but Tenant shall remain Iiable as hereinafter provided.
(2) If the Notice provided for in (17)(1) hereof shall have been given, and the term shall expire as
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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.
Remedies Of Owner
and Waiver of
Redemption: 18. In case of any such default, re-entry, expiration and/or dispossess by summary proceedings or otherwise:
(a) the Rent and Additional Rent shall become due thereupon and be paid up to the time of such re-
entry, dispossess and/or expiration;
(b) Owner may re-let the Premises, or any part or parts thereof, either in the name of Owner or
otherwise, for a term or terms, which may at Owner's option be less than or exceed the period which would otherwise have constituted the
balance of the term of this Lease and may grant concessions or free Rent or charge a higher rental than that in this Lease; 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 subsequent lease or leases of the Demised Premises for
each month of the period which would otherwise have constituted the balance of the term of this Lease.
The failure of Owner to re-let the Premises, or any part or parts thereof, shall not release or affect Tenant's
liability for damages. In computing such liquidated damages, there shall be added to the said deficiency such expenses as Owner may incur in
connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage, advertising and for keeping the Demised Premises in
good order or for preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day
specified in this Lease. 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 judgement, considers advisable
and necessary for the purpose of re-letting the Demised Premises, and the making of such alterations, repairs, replacements, and/or decorations
shall not operate or be construed to release Tenant from liability. Owner shall in no event be liable in any way whatsoever for failure to re-let the
Demised Premises, or in the event that the Demised Premises are re-let, for failure to collect the Rent thereof under such re-letting, and in no
event shall Tenant be entitled to receive any excess, if any, of such net Rent collected over the sums payable by Tenant to Owner hereunder. In
the event of a breach or threatened breach by Tenant or any of the covenants or provisions hereof, Owner shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for.
Mention in this Lease of any particular remedy shall not preclude Owner from any other remedy, in law or in equity. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or future laws.
Fees and Expenses: 19. If Tenant shall default in the observance or performance of any term or covenant on Tenant's part to be
observed or performed under or by virtue of any of the terms or provisions in any article of this Lease, after notice, ifrequired, and upon
expiration of any applicable grace period, if any, (except in an emergency) then, unless otherwise provided elsewhere in this Lease, Owner may
immediately, or at any time thereafter and without notice, perform the obligation of Tenant thereunder, and if Owner, in connection therewith or
in connection with any default by Tenant in the covenant to pay Rent hereunder, makes any expenditures or incurs any obligations for the
payment of money, including but not limited to reasonable attorney's fees, in instituting, prosecuting or defending any actions or proceeding and
prevails in any such action or proceeding, such sums so paid or obligations incurred with interest and costs shall be deemed to be Additional Rent
hereunder and shall be paid by Tenant to Owner within ten (10) days of rendition of any bill or statement to Tenant therefor, and 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.
No Representations
By Owner: 20. Neither Owner nor Owner's agent 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 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: 21. 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 excepted, and Tenant shall remove all its property. Tenant's
obligation to observe or perform this covenant shall survive the expiration or other termination of this Lease. If the last day of the term of this
Lease, or any Renewal thereof, falls on Sunday, this Lease shall expire at noon on the preceding Saturday unless it be a legal holiday, in which
case it shall expire at noon on the preceding business day.
Quiet Enjoyment: 22. 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
FILED: NEW YORK COUNTY CLERK 05/29/2024 03:45 PM INDEX NO. 652753/2024
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/29/2024
33 hereof, and to the ground leases, underlying leases and mortgages hereinbefore mentioned.
Failure to Give
Possession: 23. 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 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
way to extend the term of this Lease, but the Rent payable hereunder shall be abated (provided Tenant is not responsible for the inability to obtain
possession or complete construction) until after Owner shall have given Tenant written notice that the Owner is able lo deliver possession in the
condition required by this Lease. If permission is given to Tenant to enter into the possession of the Demised Premises or to occupy premises
other than the Demised Premises prior to the date specified as the commencement of the term of this Lease, Tenant covenants and agrees that
such possession and/or occupancy shall be deemed to be under all the terms, covenants, conditions and provisions of this Lease except the
obligation to pay the Fixed Annual Rent set forth in page one of this Lease. The provisions of this Article are intended to constitute "an express
provision to the contrary" within the meaning of Section 223-a of the New York Real Property Law.
No Waiver: 24. 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 ofan 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 ofa lesser amount than the monthly Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated
Rent, nor shall any endorsement or statement of any check or any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to Owner's right to recover the balance of such Rent or pursue any
other remedy in this Lease provided. No act or thing done by Owner, or Owner's agents, during the term hereby demised shall be deemed in
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: 25. 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 ofor occupancy of said Premises, and any emergency statutory or any other statutory remedy. It is further mutually
agreed that in the event Owner commences any proceeding or action for possession including a summary proceeding for possession of the
Premises, Tenant will not interpose any counterclaim of whatever nature or description in any such proceeding, including a counterclaim under
Article 4 except for statutory mandatory counterclaims.
Inability to
Perform: 26. This Lease, and the obligation of Tenant to pay Rent hereunder and perform all of the other covenants and
agreements hereunder on part of Tenant to be performed, shall in no way be affected, impaired or excused because Owner is unable to fulfill any
of its obligations under this Lease, or to supply, or is delayed in supplying, any service expressly or impliedly to be supplied, or is unable to
make, or is delayed in making any repair, additions, alterations or decorations, or is unable to supply, or is delayed in supplying, any equipment,
fixtures or other materials, or if Owner is prevented or delayed from so doing by reason of strike or labor troubles, 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 of which have been or are affected, either directly or i
Preview
FILED: NEW YORK COUNTY CLERK 05/29/2024 03:45 PM INDEX NO. 652753/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/29/2024 ST AND ARD FORM OF STORE LEASE The Real Eslale Boa, d of New York, Inc, Februa February ry 13th 13th Agreement of Lease, made as of this _ _ _ _ _ day of January, 2017, between EMPIRE BROOME LLC, party of the first part, hereinafter referred to as OWNER and/or LANDLORD, and DRAKE'S CROSBY LLC d/b/a DRAKE'S, party of the second part, hereinafter referred to as TENANT, Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner -- APPROXIMATELY 1,000 SQUARE FEET ON GROUND FLOOR TOGETHER WITH BASEMENT (EXCLUDING SUB-BASEMENT) in the building known as 430 BROOME STREET a/k/a 39,5 CROSBY STREET in the Borough ofManhallan, City of New York, for the term of five (5) Years (or until such term shall sooner cease and expire as hereinafter provided) to commence on the first day of February, 2017, and to end on the las! day of January, 2022, both dates inclusive, al an Annual Rental Rate of which Tenant agrees lo pay in lawful money oflhe United Slates, which shall be legal tende, 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 te1111, 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 Q!iE_monthly installment on the execution hereof(unless this Lease be a renewal). In the event that, al the commencement oflhe term of this Lease, or thereafter, Tenant shall be in default in the payment of Rent to Owner pursuant to the lenns ofenother lease with Owner or with Owner's predecessor-in-interest, Owner may, al Owner's option and without notice to Tenant, add the amount of such an-ea,s to any monthly installment of Rent payable hereunder and the same shall be payable lo Owner as Additional Rent. The parties hereto, for themselves, their heirs, distribulees, 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 retail sale of menswear and women's apparel, accessories, shoes, and/or items related to the foregoing, and associated Drake's products, and for no other purpose. Tenant shall, at all times, conduct its business in a high grade and reputable manner, shall not violate Article 37 hereof, and shall keep show windows and signs in a neat and clean condition. Alterations: 3. Tenant shall make no changes in or to the Demised Premises of any nature without Owner's prior written consent. Subject to the prior written consent of Owner, and to the provisions of this Article, Tenant, at Tenant's expense, may make alterations, installations, additions or improvements which are 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, installations or improvements, at its expense, obtain all perm its, approvals and certificates required by any governmental or quasi-governmental bodies and (upon completion) certificates of final approval thereof and shall promptly deliver duplicates of all such permits, approvals and certificates to Owner, and Tenant agrees to carry and will cause Tenant's contractors and sub-contractors to carry such workman's compensation, general liability, personal and property damage insurance as Owner may require. If any mechanic's lien is filed against the Demised Premises, or the Building of which the same forms a part, for work claimed to have done for, or materials furnished to, Tenant, whether or not done pursuant to this Article, the same shall be discharged by Tenant within thirty (30) days thereafter, at Tenant's expense, by payment or 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 on Tenant's behalf, shall, upon installation, become the property of Owner and shall remain upon and be surrendered with the Demised Premises unless Owner, by notice to Tenant no later than twenty (20) days prior to the date fixed as the termination of this Lease, elects to relinquish Owner's rights 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. Nothing in this Article shall be construed to give Owner title to or to prevent Tenant's removal of trade fixtures, moveable office furniture and equipment, but upon removal of any such from the Premises or upon removal of other installations as may be required by Owner, Tenant shall immediately, and at its expense, repair and restore the Premises to the condition existing prior to installation and repair any damage to the Demised Premises or the Building due to such removal. All property permitted or required to be removed by Tenant at the end of the term remaining in the Premises after Tenant's removal shall be deemed abandoned and may, at the election of Owner, either be retained as Owner's property or may be removed from the Premises by Owner at Tenant's expense. Repnirs: 4. Owner shall maintain and repair the public portions of the Building, both exterior and interior, except that if Owner allows Tenant to erect on the outside of the Building a sign or signs, or a hoist, lift or sidewalk elevator for the exclusive use of Tenant, Tenant shall maintain such exterior installations in good appearance and shall cause the same to be operated in a good and workmanlike manner and shall make all repairs thereto necessary to keep same in good order and condition, at Tenant's own cost and expense; and shall cause the same to be covered by the insurance provided for hereafter in Article 8. Tenant shall, throughout the term of this Lease, take good care of the Demised Premises and the fixtures and appurtenances therein, and the sidewalks including maintenance and repair and snow removal and cleaning adjacent thereto, and at its sole cost and expense, make all non-structural repairs thereto as and when needed to preserve them in good working order and condition, reasonable wear and tear, obsolescence and damage from the elements fire or other casualty, excepted. If the Demised Premises be or FILED: NEW YORK COUNTY CLERK 05/29/2024 03:45 PM INDEX NO. 652753/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/29/2024 become infested with vennin, Tenant shall at Tenant's expense, cause the same to be exterminated from time to time to the satisfaction of Owner, Except as specifically provided in Article 9 or elsewhere in this Lease, there shall be no allowance to the Tenant for the diminution of rental value and no liability on the part of Owner by reason of inconvenience, annoyance or injury to business arising from Owner, Tenant or others making or failing to make any repairs, alterations, additions or improvements in or to any portion of the Building, including the erection or operation of any crane, derrick or sidewalk shed, or in or to the Demised Premises or the fixtures, appurtenances or equipment thereof. It is specifically agreed that Tenant shall be not 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 ofan action for damages for breach of Contract. The provisions of this Article 4 with respect to the making of repairs shall not apply in the case of fire or other Casualty 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 New York State Labor Law or any other applicable law or of the Rules of the Board of Standards and Appeals, or of any other Board or body having or asserting jurisdiction. Requirements of Law, Fire Insurance: 6. Prior to 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 ofany public officer pursuant to law, and all orders, rules and regulations of the New York Board of Fire Underwriters or the Insurance Services Office, or any similar body which shall impose any violation, order or duty upon Owner or Tenant with respect to the Demised Premises, and with respect to the portion of the sidewalk adjacent to the Premises, if the Premises are on the street level, whether or not arising out of Tenant's use or manner of use thereof, or with respect to the Building if arising out of Tenant's use or manner of use of the Premises or the Building (including the use permitted under the Lease). Except as provided in Article 29 hereof, nothing herein shall require Tenant to make structural repairs or alterations unless Tenant has by its manner of use of the Demised Premises or method of operation therein, violated any such laws, ordinances, orders, rules, regulations or requirements with respect thereto. Tenant shall not do or permit any act or thing to be done in or to the Demised Premises which is contrary to law, or which will invalidate or be in conflict with public liability, fire or other policies of insurance at any time carried by or, for the benefit of Owner. Tenant shall 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. If the fire insurance rate shall be, at the beginning of the Lease or at any time thereafter, 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 to comply with the terms of this Article. 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 a body making fire insurance rates applicable to said Premises shall be conclusive evidence of the facts therein stated and of the several items and charges in the fire insurance rate then applicable to said Premises. Subordination: 7. This Lease is subject and subordinate to all ground or underlying leases and to all mortgages which may now or hereafter affect such leases or the real property of which Demised Premises are a part and to all renewals, modifications, consolidations, replacements and extensions of any such underlying leases and mortgages. This clause shall be self-operative and no further instrument of subordination shall be required by any ground or underlying lessor or by any mortgagee, affecting any lease or the real property of which the Demised Premises are a part. In confirmation of such subordination, Tenant shall from time to time execute promptly any certificate that Owner may request. Tenant's Liability Insurance Property Loss, Damage, Indemnity: 8. Owner, or its agents, shall not be liable for any damage to property of Tenant or of others entrusted to employees of the Building, nor for loss of or damage to any property of Tenant by theft or other wise, 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 Tenant agrees, at Tenant's sole cost and expense, to maintain general public liability insurance in standard form in favor of Owner and Tenant against claims for bodily injury or death or property damage occurring in or upon the Demised Premises, effective from the date Tenant enters into possession and during the term of this Lease. Such insurance shall be in an amount and with carriers acceptable to the Owner. Such policy or policies shall be delivered to the Owner. On Tenant's default in obtaining or delivering any such policy or policies or failure to pay the charges therefor, Owner may secure or pay the charges for any such policy or policies and charge the Tenant as Additional Rent therefor. 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 agent, contractors, employees, invitees, or licensees, of any covenant on 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 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 Tenant's expense, resist or defend such action or proceeding by counsel approved by Owner in writing, such approval not to be unreasonably withheld. Casualty: 9. (a) If the Demised Premises, or any part thereof, shall be damaged by fire or other casualty, Tenant shall give immediate notice thereof to Owner and this Lease shall continue in full force and effect except as hereinafter set forth. (b) If the Demised Premises are partially damaged or rendered partially unusable by fire or other casualty, the damages thereto shall be repaired by and at the expense of Owner and the Rent and other items of Additional Rent, until such repair shall be substantially completed, shall be apportioned from the day following the casualty according to the part of the Premises which is usable. FILED: NEW YORK COUNTY CLERK 05/29/2024 03:45 PM INDEX NO. 652753/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/29/2024 (c) If the Demised Premises are totally damaged or rendered wholly unusable by fire or other casualty, then the Rent and other items of Additional Rent as hereinafter expressly provided shall be proportionately paid up to the time of the casualty and thenceforth shall cease until the date when the Premises shall have been repaired and restored by Owner (or sooner reoccupied in part by Tenant then Rent shall be apportioned as provided in subsection (b) above), subject to Owner's right to elect not to restore the same as hereinafter provided (d) If the Demised Premises are rendered wholly unusable or (whether or not the Demised Premises are damaged in whole or in part) if the Building shall be so damaged that Owner shall decide to demolish it, then, in such events, Owner may elect to terminate this Lease by written notice to Tenant given within ninety (90) days after such fire or casualty or thirty (30) days after adjustment of the insurance claim for such fire or casualty, whichever is sooner, specifying a date for the expiration of the Lease, which date shall not be more than sixty (60) days after the giving of such notice, and upon the date specified in such notice the term of this Lease shall expire as fully and completely as if such date were the date set forth above for the termination of this Lease and Tenant shall forthwith quit, surrender and vacate the Premises without prejudice however, to Owner's rights and remedies against Tenant under the Lease Provisions in effect prior to such termination, and any Rent owing shall be paid up to such date and any payments of Rent made by Tenant which were on account of any period subsequent to such date shall be returned to Tenant. Unless Owner shall serve a Termination Notice as provided for herein, Owner shall make the repairs and restorations under the conditions of(b) and (c) hereof, with all reasonable expedition subject to delays due to adjustment of insurance claims, labor troubles and causes beyond Owner's control. After any such casualty, Tenant shall cooperate with Owner's restoration by removing from the Premises, as promptly as reasonably possible, all of Tenant's salvageable inventory and movable equipment, furniture, and other property. Tenant's liability for Rent shall resume five (5) days after written notice from Owner that the Premises are substantially ready for Tenant's occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability that may exist as a result of damage from fire or other casualty. Notwithstanding the foregoing, including Owner's obligation to restore under subparagraph (b) above, each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law, Owner and Tenant each hereby releases and waives all right of recovery with respect to subparagraphs (b), (d) and (e) above, against the other or 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 in force only if both releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance. 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. (t) Tenant hereby waives the provisions of Section 227 of the Real Property Law and agrees that the provisions of this Article shall govern and control in lieu thereof Eminent Domain: 10. If the whole or any part of the Demised Premises shall be acquired or condemned by Eminent Domain for any public or quasi public use or purpose, then and in that event, the term of this Lease shall cease and terminate from the date of title vesting in such proceeding and Tenant shall have no claim for the value of any unexpired term of said Lease. Tenant shall have the right to make an independent claim to the condemning authority for the value of Tenant's moving expenses and personal property, trade fixtures and equipment, provided Tenant is entitled pursuant to the terms of the Lease to remove such property, trade fixtures and equipment at the end of the term and provided further such claim does not reduce Owner's award. Assignment, Mortgage, Etc.: 11. Tenant, for itself, its heirs, distributees, executors, administrators, legal representatives, successors and assigns expressly covenants that it shall not assign, mortgage or encumber this Agreement, nor underlet, or suffer or permit the Demised Premises or any part thereof to be used by others without the prior written consent of Owner in each instance. Transfer of the majority of the stock of a corporate tenant or the majority partnership interest ofa partnership tenant shall be deemed an assignment. If this Lease be assigned, or if the Demised Premises or any part thereof be underlet or occupied by anybody other than Tenant, Owner may, after default by Tenant, collect Rent from the assignee, under-tenant or occupant, and apply the net amount collected to the Rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of the 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 sub-metering or Rent inclusion, as the case may be, to be added in RIDER attached hereto Tenant covenants and agrees that at all times its use of electric current shall not exceed the capacity of existing feeders to the Building or the risers or wiring installation and Tenant may not use any electrical equipment which, in Owner's opinion, reasonably exercised, will overload such installations or interfere with the use thereof by other tenants of the Building. The change at any time of the character of electric service shall in no way make Owner liable or responsible to Tenant for any loss, damages or expenses which Tenant may sustain. Access to Premises: 13. Owner, or Owner's agents, shall have the right (but shall not be obligated) to enter the Demised Premises in any emergency at any time, and at other reasonable times to examine the same and to make such repairs, replacements and improvements as Owner may deem necessary and reasonably desirable to any portion of the Building, or which Owner may elect to perform in the Premises following Tenant's failure to make repairs or perform any work which Tenant is obligated to perform under this Lease, or for the purpose of complying with laws, regulations and other directions of governmental authorities. Tenant shall permit Owner to use and maintain and replace pipes and conduits in and through the Demised Premises and to erect new pipes and conduits therein, provided they are concealed within the walls, floors or ceiling wherever practicable. Owner may, during the progress of any work in the Demised Premises, take all necessary materials FILED: NEW YORK COUNTY CLERK 05/29/2024 03:45 PM INDEX NO. 652753/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/29/2024 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 (6) months of the term for the purpose of showing the same to prospective tenants and may, during said six (6) month period, place upon the Demised Premises the usual notice "To Let" and "For Sale" which notices Tenant shall permit to remain thereon without molestation. If Tenant is not present to open and permit an entry into the Demised Premises, Owner, or Owner's agents, may enter the same whenever such entry may be necessary or permissible by master key or forcibly and provided reasonable care is exercised to safeguard Tenant's property, such entry shall not render Owner, or its agents, liable therefor, nor in any event shall the obligations of Tenant hereunder be affected. If, during the last month of 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. Owner shall have the right at any time, without the same constituting an eviction and without incurring liability to Tenant therefor to change the arrangement and/or location of public entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets, or other public parts of the building and to change the name, number or designation by which the Building may be known, 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. Occupancy: 15. Tenant will not, at any time, use or occupy the Demised Premises in violation of Articles 2 or 37 hereof, or 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 Rider annexed hereto with respect to Owner's Work, if any. In any event, Owner makes no representation as to the condition of the Premises and Tenant agrees to accept the same subject to violations whether or not of record. Bankruptcy: 16. (a) Anything elsewhere in this Lease to the contrary notwithstanding, this Lease may be cancelled by Owner by the sending ofa written notice to Tenant within a reasonable time after the happening of anyone or more of the following events: ( 1) the commencement of a case in bankruptcy or under the laws of any state naming Tenant as the debtor; or (2) the making by Tenant of an assignment or any other arrangement for the benefit of creditors under any state statute. Neither Tenant, nor any person claiming through or under Tenant, or by reason of any statute or order of court, shall thereafter be entitled to possession of the Premises demised but shall forthwith quit and surrender the Premises. If this Lease shall be assigned in accordance with its terms, the provisions of this Article 16 shall be applicable only to the party then owning Tenant's interest in this Lease. (b) It is stipulated and agreed that in the event of the termination of this Lease pursuant to (16)(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 of said Lease, or any part thereof, before presentation ofproofof such Iiquidated damages to any court, commission or tribunal, the amount of Rent reserved upon such re-letting 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. (I) 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 become vacant or deserted; or if any execution or attachment shall be issued against Tenant or any of Tenant's property whereupon the Demised Premises shall be taken or occupied by someone other than Tenant; or if this Lease be rejected under Section 365 of Title II 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, of which fact Owner shall be the sole judge; then, in any one or more of such events, upon Owner serving a written fifteen ( 15) days notice upon Tenant specifying the nature of said default and upon the expiration of said fifteen (15) days, if Tenant shall have failed to comply with or remedy such default, or if the said default or omission complained of shall be ofa 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 five (5) days notice of cancellation of upon Tenant, and upon the expiration of said five (5) days, this Lease and the term thereunder shall end and expire as fully and completely as if the expiration of such five (5) day period were the day herein definitely fixed for the end and expiration of this Lease and the term thereof and Tenant shall then quit and surrender the Demised Premises to Owner but Tenant shall remain Iiable as hereinafter provided. (2) If the Notice provided for in (17)(1) hereof shall have been given, and the term shall expire as FILED: NEW YORK COUNTY CLERK 05/29/2024 03:45 PM INDEX NO. 652753/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/29/2024 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. Remedies Of Owner and Waiver of Redemption: 18. In case of any such default, re-entry, expiration and/or dispossess by summary proceedings or otherwise: (a) the Rent and Additional Rent shall become due thereupon and be paid up to the time of such re- entry, dispossess and/or expiration; (b) Owner may re-let the Premises, or any part or parts thereof, either in the name of Owner or otherwise, for a term or terms, which may at Owner's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free Rent or charge a higher rental than that in this Lease; 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 subsequent lease or leases of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease. The failure of Owner to re-let the Premises, or any part or parts thereof, shall not release or affect Tenant's liability for damages. In computing such liquidated damages, there shall be added to the said deficiency such expenses as Owner may incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage, advertising and for keeping the Demised Premises in good order or for preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day specified in this Lease. 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 judgement, considers advisable and necessary for the purpose of re-letting the Demised Premises, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from liability. Owner shall in no event be liable in any way whatsoever for failure to re-let the Demised Premises, or in the event that the Demised Premises are re-let, for failure to collect the Rent thereof under such re-letting, and in no event shall Tenant be entitled to receive any excess, if any, of such net Rent collected over the sums payable by Tenant to Owner hereunder. In the event of a breach or threatened breach by Tenant or any of the covenants or provisions hereof, Owner shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy shall not preclude Owner from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws. Fees and Expenses: 19. If Tenant shall default in the observance or performance of any term or covenant on Tenant's part to be observed or performed under or by virtue of any of the terms or provisions in any article of this Lease, after notice, ifrequired, and upon expiration of any applicable grace period, if any, (except in an emergency) then, unless otherwise provided elsewhere in this Lease, Owner may immediately, or at any time thereafter and without notice, perform the obligation of Tenant thereunder, and if Owner, in connection therewith or in connection with any default by Tenant in the covenant to pay Rent hereunder, makes any expenditures or incurs any obligations for the payment of money, including but not limited to reasonable attorney's fees, in instituting, prosecuting or defending any actions or proceeding and prevails in any such action or proceeding, such sums so paid or obligations incurred with interest and costs shall be deemed to be Additional Rent hereunder and shall be paid by Tenant to Owner within ten (10) days of rendition of any bill or statement to Tenant therefor, and 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. No Representations By Owner: 20. Neither Owner nor Owner's agent 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 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: 21. 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 excepted, and Tenant shall remove all its property. Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of this Lease. If the last day of the term of this Lease, or any Renewal thereof, falls on Sunday, this Lease shall expire at noon on the preceding Saturday unless it be a legal holiday, in which case it shall expire at noon on the preceding business day. Quiet Enjoyment: 22. 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 FILED: NEW YORK COUNTY CLERK 05/29/2024 03:45 PM INDEX NO. 652753/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/29/2024 33 hereof, and to the ground leases, underlying leases and mortgages hereinbefore mentioned. Failure to Give Possession: 23. 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 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 way to extend the term of this Lease, but the Rent payable hereunder shall be abated (provided Tenant is not responsible for the inability to obtain possession or complete construction) until after Owner shall have given Tenant written notice that the Owner is able lo deliver possession in the condition required by this Lease. If permission is given to Tenant to enter into the possession of the Demised Premises or to occupy premises other than the Demised Premises prior to the date specified as the commencement of the term of this Lease, Tenant covenants and agrees that such possession and/or occupancy shall be deemed to be under all the terms, covenants, conditions and provisions of this Lease except the obligation to pay the Fixed Annual Rent set forth in page one of this Lease. The provisions of this Article are intended to constitute "an express provision to the contrary" within the meaning of Section 223-a of the New York Real Property Law. No Waiver: 24. 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 ofan 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 ofa lesser amount than the monthly Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement of any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Owner may accept such check or payment without prejudice to Owner's right to recover the balance of such Rent or pursue any other remedy in this Lease provided. No act or thing done by Owner, or Owner's agents, during the term hereby demised shall be deemed in 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: 25. 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 ofor occupancy of said Premises, and any emergency statutory or any other statutory remedy. It is further mutually agreed that in the event Owner commences any proceeding or action for possession including a summary proceeding for possession of the Premises, Tenant will not interpose any counterclaim of whatever nature or description in any such proceeding, including a counterclaim under Article 4 except for statutory mandatory counterclaims. Inability to Perform: 26. This Lease, and the obligation of Tenant to pay Rent hereunder and perform all of the other covenants and agreements hereunder on part of Tenant to be performed, shall in no way be affected, impaired or excused because Owner is unable to fulfill any of its obligations under this Lease, or to supply, or is delayed in supplying, any service expressly or impliedly to be supplied, or is unable to make, or is delayed in making any repair, additions, alterations or decorations, or is unable to supply, or is delayed in supplying, any equipment, fixtures or other materials, or if Owner is prevented or delayed from so doing by reason of strike or labor troubles, 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 of which have been or are affected, either directly or i