PROPRIETARY LEASE, made as of , 20 , between 511 WEST 232ND OWNERS CORP., a New York corporation, having an office at 511 West 232nd Street, Riverdale, New York, hereinafter called the Lessor, and
hereinafter called the Lessee.
WHEREAS, the Lessor is the owner of the land and the building erected thereon in the Borough of the Bronx, City of New York, known as and by the street number 511 West 232nd Street, (the "Building"); and
WHEREAS, the Lessee is the owner of shares of the Lessor to which this lease is appurtenant and which have been allocated to Apartment in the Building;
Demised Premises; Term
NOW, THEREFORE, in consideration of the premises, the Lessor hereby leases to the Lessee, and the Lessee hires from the Lessor, subject to the terms and conditions hereof, Apartment in the Building (hereinafter referred to as "the apartment" for a term from , 20 , until September 30, 2086 (unless sooner terminated as hereinafter provided). As used herein "the apartment" means the rooms in the Building as partitioned on the date of the execution of this lease designated by the above-stated apartment number, together with their appurtenances and fixtures and any closets, terraces, balconies, roof, or portion thereof outside of said partitioned rooms, which are allocated exclusively to the occupant of the apartment.
Rent (Maintenance); How Fixed
1. (a) The rent (sometimes called "maintenance") payable by the Lessee for each year, or portion of a year, during the term shall equal that proportion of the Lessor's cash requirements for such year, or portion of a year, which the number of shares of the Lessor allocated to the apartment bears to the total number of shares of the Lessor issued and outstanding on the date of the determination of such cash requirements. Such maintenance shall be payable, without notice or demand, in equal monthly installments, in advance, on the first day of each month, unless the Board of Directors of the Lessor (hereinafter called "Directors") at the time of its determination of the cash requirements shall otherwise direct. The Lessee shall also pay when due such additional rent as may be provided for herein. If Lessor has not received the rent due for any month from Lessee on or before the tenth of the month, the Lessor may impose a late charge of $50.00 on Lessee in order to reimburse Lessor for the increased costs of collection and processing. The fee shall be payable in the next month's installment as additional rent.
Accompanying Shares to Be Specified in Proprietary Lease
(b) In every Proprietary Lease heretofore executed by the Lessor there has been specified, and in every Proprietary Lease hereafter executed by it there will be specified, the number of shares of the Lessor issued to a Lessee simultaneously therewith, which number, in relation to the total number of shares of the Lessor issued and outstanding, shall constitute the basis for fixing, as hereinbefore provided, the proportionate share of the Lessor's cash requirements which shall be payable as rent by the Lessee.
Cash Requirements Defined
(c) "Cash requirements" whenever used herein shall mean the estimated amount in cash which the Directors shall from time to time in its judgment determine to be necessary or proper for (1) the operation, maintenance, care alteration and improvement of the corporate Property during the year or portion of the year in which such determination is made; (2) the creation of such reserve for contingencies as it may deem proper; (3) the payment of, or the establishment of a reserve for, any rentals and other sums payable under any ground leases covering the Property owned by the payable under any ground leases covering the Property owned by the Lessor; and (4) the payment of any obligations, liabilities or expenses incurred (even though incurred during a prior period) or to be incurred, after giving consideration to (i) income expected to be received during such period (other than rent from proprietary lessees), and (ii) cash on hand which the Directors in discretion may choose to apply. The Directors may from time to time modify its prior determination and increase or diminish the amount previously determined as cash requirements of the corporation for a year or portion thereof. No determination of cash requirements shall have any retroactive effect on the amount of the rent payable by the Lessee for any period prior to the date of such determination. All determinations of cash requirements shall be conclusive as to all Lessees.
Authority Limited to Board of Directors
(d) Whenever in this paragraph, or in any other paragraph of this Lease, a power or privilege is given to the Directors, the same may be exercised only by the Directors, and in no event may any such power or privilege be exercised by a creditor, receiver or trustee.
Issuance of Additional Shares
(e) If the Lessor shall hereafter issue shares (whether now or hereafter authorized) in addition to those issued on the date of the execution of this Lease, the holders of the shares hereafter issued shall be obligated to pay rent at the same rate as the other proprietary lessees from and after the date of issuance. If any such shares be issued on a date other than the first or last day of the month, the rent for the month in which issued shall be apportioned. The cash requirements as last determined shall, upon the issuance of such shares, be deemed increased by an amount equal to such rent.
(f) The Directors may from time to time as may be proper determine how much of the maintenance and other receipts, when received (but not more than such amount as represents payments on account of principal of mortgages on the Property and other capital expenditures), shall be credited on the corporate accounts to "Paid-in-Surplus". Unless the Directors shall determine otherwise, the amount of payments on account of principal of any mortgages shall be credited to Paid-in-Surplus.
Failure to Fix Cash Requirements
(g) The failure of the Directors to determine the Lessor's cash requirements for any year or portion thereof shall not be deemed a waiver or modification in any respect of the covenants and provisions hereof, or a release of the Lessee from the obligation to pay the maintenance or any installment thereof, but the maintenance computed on the basis of the cash requirements as last determined for any year or portion thereof shall thereafter continue to be maintenance until a new determination of cash requirements shall be made.
2. The Lessor shall at its expense keep in good repair all of the Building including all of the apartments, the sidewalks and courts surrounding the same, and its equipment and apparatus except those portions the maintenance and repair of which are expressly stated to be the responsibility of the Lessee pursuant to Paragraph 18 hereof.
Services by Lessor
3. The Lessor shall maintain and manage the Building as a first-class apartment building, and shall keep the elevators and the public halls, cellars and stairway clean and properly lighted
and heated, and shall provide the number of attendants requisite, in the judgment of the Directors, for the proper care and service of the Building, and shall provide the apartments with a proper and sufficient supply of hot and cold water and of heat, and if there be central air-conditioning equipment supplied by the Lessor, air conditioning when deemed appropriate by the Directors. The covenants by the Lessor herein contained are subject, however, to the discretionary power of the Directors to determine from time to time what services and what attendants shall be proper and the manner of maintaining and operating the Building, and also what existing services shall be increased, reduced, changed, modified or terminated.
Damage to Apartment or Building
4. (a) If the apartment or the means of access thereto or the Building shall be damaged by fire or other cause covered by multiperil policies commonly carried by corporations owning "cooperative apartment buildings" in New York City (any other damage to be repaired by the Lessor or the Lessee pursuant to Paragraphs 2 and 18, as the case may be), the Lessor shall at its own cost and expense, with reasonable dispatch after receipt of notice of said damage, repair or replace or cause to be repaired or replaced, with materials of a kind and quality then customary in buildings of the type of the Building, the Building, the apartment, and the means of access hereto, including the walls, floors, ceilings, pipes, wiring and conduits in the apartment. Anything in this Paragraph or Paragraph 2 to the contrary notwithstanding, the Lessor shall not be required to repair or replace, or cause to be repaired or replaced, equipment, fixtures, furniture, furnishings or decorations installed by the Lessee or any of his predecessors in title nor shall the Lessor be obligated to repaint or replace wallpaper or other decorations in the apartment, repair or replace parquet tile, or other floor coverings or to refinish floors located therein.
(b) In case the damage resulting from fire or other cause shall be so extensive as to render the apartment partly or wholly untenantable, or if the means of access thereto shall be destroyed, the rent hereunder shall proportionately abate until the apartment shall again be rendered wholly tenantable or the means of access restored; but if said damage shall be caused by the act or negligence of the Lessee or the agents, employees, guests or members of the family of the Lessee or any occupant of the apartment, such rental shall abate only to the extent of the rental value insurance, if any, collected by the Lessor with respect to the apartment.
Expiration of Lease Due to Damage
(c) If the Directors shall determine that (i) the Building is totally destroyed by fire or other cause, or (ii) the Building is so damaged that it cannot be repaired within nine (9) months after the loss shall have been adjusted with the insurance carriers, or (iii) the destruction or damage was caused by hazards which were not covered under the Lessor's insurance policies then in effect, and if in any such case the record holders of at least two-thirds (2/3) of the issued and outstanding shares, at a shareholders' meeting duly called for the purpose held within 120 days after the determination by the Directors, shall vote not to repair, restore or rebuild, then upon the giving of notice pursuant to Paragraph 31 hereof, this Lease and all other proprietary leases and all right, title and interest of the parties thereunder and the tenancies thereby created shall thereupon wholly cease and expire and rent shall be paid to the date of such destruction or damage. The Lessee hereby waives any and all rights under Section 227 of the Real Property Law and in no event shall the Lessee have any option or right to terminate this Lease except as provided herein.
Waiver of Subrogation
(d) The Lessor and the Lessee hereby release each other from any and all liability or responsibility to the other or anyone claiming through or under the Lessor or the Lessee by way of subrogation or otherwise for any loss or damage to property caused by fire or any of the extended coverage casualties, even if such fire or other casualty shall have been caused by the fault or negligence of the Lessor or the Lessee or anyone for whom the Lessor or the Lessee may be responsible, provided, however, that this release shall be applicable and in force and effect only with respect to loss or damage occurring during such time as the Lessor's or Lessee's insurance policies shall contain a clause or endorsement to the effect that any such release shall not adversely affect or impair such insurance policies or prejudice the right of the Lessor and the Lessee to recover thereunder and further provided that such waiver shall be limited to the proceeds of such insurance policies. Lessor and Lessee agree that they will request their insurance carriers to include in each of their policies a suitable clause or endorsement, as aforesaid, provided that no extra cost shall be charged therefor, and upon request, Lessor and Lessee shall each advise the other whether or not it has been able to obtain such a clause or endorsement in its policies.
Inspection of Books of Account and Annual Report
5. The Lessor shall keep full and correct books of account at its principal office or at such other place as the Directors
may from time to time determine, and the same shall be open during all reasonable hours to inspection by the Lessee or a representative of the Lessee. The Lessor shall deliver to the Lessee within a reasonable time after the end of each fiscal year an annual report of corporate financial affairs, including a balance sheet and a statement of income and expenses, certified by an independent certified public accountant.
Changes in Terms and Conditions of Proprietary Leases
6. Each Proprietary Lease made by the Lessor shall be in the form of this Lease, except with respect to the statement as to the number of shares owned by the Lessee, unless a variation of any Lease is authorized by Lessees owning at least two-thirds (2/3) of the Lessor's shares then issued and executed by the Lessor and Lessee affected. The form and provisions of all the Proprietary Leases then in effect and thereafter to be executed may be changed by the approval of Lessees owning at least two-thirds (2/3) of the Lessor's shares then issued and outstanding, and such changes shall be binding on all Lessees even if they did not vote for such changes except that (i) the proportionate share of rent or cash requirements payable by any Lessee may not be increased, (ii) the right of any Lessee to cancel his lease under the conditions set forth in Paragraph 35 may not be eliminated or impaired, without, in each of the foregoing instances, the express consent of the affected shareholder, and (iii) the provisions hereof are subject to the provisions of Paragraph 38(c)of this Lease. Approval by Lessees as provided for herein shall be evidenced by written consent or by affirmative vote taken at a meeting called for such purpose.
Penthouse, Terraces and Balconies
7. If the apartment includes a terrace, balcony, or a portion of the roof adjoining a penthouse, the Lessee shall have and enjoy exclusive use of the terrace or balcony or that portion of the roof appurtenant to the penthouse, subject to the applicable provisions of this lease and to the use of the terrace, balcony or roof by the Lessor to the extent herein permitted. The Lessee's use thereof shall be subject to such regulations as may, from time to time, be prescribed by the Directors. The Lessor shall have to right to erect equipment on the roof, including radio and television aerials and antennae, for its use and the use of the Lessees in the Building and shall have the right of access thereto for such installations and for the repair thereof. The Lessee shall keep the terrace, balcony, or portion of the roof appurtenant to his apartment clean and free from snow, ice, leaves and other debris and shall maintain all screens and drain boxes in good condition. No planting, fences, structures or lattices shall be erected or installed on the terraces, balconies, or roof of the
Building without the prior written approval of the Lessor. No cooking shall be permitted on any terraces, balconies or the roof of the Building, nor shall the walls thereof be painted by the Lessee without the prior written approval of the Lessor. Any planting or other structures erected by the Lessee or his predecessor in interest may be removed and restored by the Lessor at the expense of the Lessee for the purpose of repairs, upkeep or maintenance of the Building. Nothing in this Section 7 contained shall be construed to grant to the Lessee any right to use the roof of the Premises unless expressly provided for elsewhere in this lease.
Assignment of Lessor's Rights Against Occupant
8. If at the date of the commencement of this Lease, any third party shall be in possession or have the right to possession of the apartment, then the Lessor hereby assigns to the Lessee all of the Lessor's rights against said third party from and after the date of the commencement of the term hereof, and the Lessee by the execution hereof assumes all of the Lessor's obligations to said third party from said date. The Lessor agrees to cooperate with the Lessee, but at the Lessee's expense, in the enforcement of the Lessee's rights against said third party.
Cancellation of Prior Agreements
9. If, at the date of the commencement of this Lease, the Lessee has the right to possession of the apartment under any agreement or statutory tenancy, this Lease shall supersede such agreement or statutory tenancy which shall be of no further effect after the date of commencement of this Lease, except for claims theretofore arising thereunder.
10. The Lessee, upon paying the rent and performing the covenants and complying with the conditions on the part of the Lessee to be performed as herein set forth, shall, at all times during the term hereby granted, quietly have, hold and enjoy the apartment without any let, suit, trouble or hindrance from the Lessor, subject, however, to the rights of present tenants or occupants of the apartment, and subject to any and all mortgages and underlying leases of the land and Building, as provided in Paragraph 22 below.
11. The Lessee agrees to save the Lessor harmless from all liability, loss, damage and expense arising from injury to person or property occasioned by the failure of the Lessee to comply with
any provision hereof, or due wholly or in part to any act, default or omission of the Lessee or of any person dwelling or visiting in the apartment, or by the Lessor, its agents, servants or contractors when acting as agent for the Lessee as in this lease provided. This paragraph shall not apply to any loss or damage when the Lessor is covered by insurance which provides for waiver or subrogation against the Lessee.
Payment of Rent
12. The Lessee will pay the rent to the Lessor upon the terms and at the times herein provided, without any deduction on account of any set-off or claim which the Lessee may have against the Lessor, and if the Lessee shall fail to pay any installment of rent promptly, the Lessee shall pay interest thereon at the rate of ten percent (10%) per annum from the date when such installment shall have become due to the date of the payment thereof, and such interest shall be deemed additional rent hereunder.
13. The Lessor has adopted House Rules which are appended hereto, and the Directors may alter, amend or repeal such House Rules which, when a copy thereof has been furnished to the Lessee, shall be taken to be part hereof, and the Lessee hereby covenants to comply with all such House Rules and see that they are faithfully observed by the family, guests, employees and subtenants of the Lessee. Breach of a house rule shall be a default under this lease. The Lessor shall not be responsible to the Lessee for the nonobservance or violation of House Rules by any other Lessee or person.
Use of Premises
14. (a) Lessee shall not, without the written consent of the Lessor on such conditions as Lessor may prescribe, occupy or use the apartment or permit the same or any part thereof to be occupied or used for any purpose other than (i) as a private dwelling for Lessee and such other individuals with whom Lessee permanently resides, but in no event shall the number of occupants exceed a number which Lessor may reasonably determine, on a non-discriminatory basis, will not impair the Building's services, violate any law or interfere with the use and enjoyment of the Building by other lessees; or (ii) for such professional uses, as may be consistent with the requirements of all governmental authorities having jurisdiction over the Building, Lessor's insurance policies and the residential use of the Building, provided that such uses do not result in the creation of traffic or noises which disturb other lessees of the Building, or of any condition which would constitute a nuisance within the Building.
(b) Notwithstanding the foregoing: (i) the apartment may be occupied from time to time by guests of Lessee for a period of time not exceeding one month, unless a longer period is approved in writing by Lessor, but no guests may occupy the apartment unless one or more of the permitted adult residents are then in occupancy or unless consented to in writing by Lessor; and (ii) Lessor shall cooperate with Lessee at Lessee's expense to permit the apartment to be used for dwelling purposes under applicable zoning laws, provided Lessee complies with all other requirements of this Lease.
15. Except as provided in Paragraphs 38 and 39 of this Lease, the Lessee shall not sublet the whole or any part of the apartment or renew or extend any previously authorized sublease, unless consent thereto shall have been duly authorized by a resolution of the Directors, or given in writing by a majority of the Directors or, if the Directors shall have failed or refused to give such consent, then by Lessees owning at least two-thirds (2/3) of the then issued and outstanding shares of the Lessor. Consent by Lessees as provided for herein shall be evidenced by written consent or by affirmative vote taken at a meeting called for such purpose. Any consent to subletting may be subject to such conditions as the Directors or Lessees, as the case may be, may impose. There shall be no limitation on the right of the Directors or Lessees to grant or withhold consent, for any reason or for no reason, to a subletting.
16. (a) The Lessee shall not assign this lease or transfer the shares to which it is appurtenant or any interest therein, and no such assignment or transfer shall take effect as against the Lessor for any purpose, until:
(i) An instrument of assignment in form approved by the Lessor executed and acknowledge by the assignor shall be delivered to the Lessor; and
(ii) An agreement executed and acknowledged by the assignee in form approved by Lessor assuming and agreeing to be bound by all the covenants and conditions of this lease to be performed or complied with by the Lessee on and after the effective date of said assignment shall have been delivered to the Lessor, or, at the request of the Lessor, the assignee shall have surrendered the assigned Lease and shall have entered into a new lease in the same form for the remainder of the term, in which case the Lessee's lease shall be deemed cancelled as of the effective date of said assignment; and
(iii) All shares of the Lessor to which this lease is appurtenant shall have been transferred to the assignee, with proper transfer taxes paid and stamps affixed; and
(iv) All sums due from the Lessee shall have been paid to the Lessor, together with a sum to be fixed by the Directors to cover reasonable legal and other expenses of the Lessor and its managing agent in connection with such assignment and transfer of shares; and
(v) A search or certification from a title insurance or abstract company as the Directors may require; and
(vi) Except in the case of an assignment, transfer or bequest to the Lessee's spouse of the shares and this Lease, and except as provided in Paragraphs 38 and 39 of this Lease, consent to such assignment shall have been authorized by resolution if the Directors, or given in writing by a majority of the Directors; or, if the Directors shall have failed or refused to give such consent within thirty (30) days after submission of references to them or the Lessor's managing agent, then by Lessees owning of record at least two-thirds (2/3) of the then issued shares of the Lessor. Consent by Lessees as provided for herein shall be evidenced by written consent or by affirmative vote taken at a meeting called for such purpose in the manner as provided in the By-laws.
Consents: On Death of Lessee
(b) If the Lessee shall die, consent shall not be unreasonably withheld or delayed to an assignment of the lease and shares to a financially responsible member of the Lessee's family (other than the Lessee's spouse as to whom no consent is required).
Consents Generally: Stockholders' and Directors' Obligations to Consent
(c) There shall be no limitation, except as above specifically provided, on the right of the Directors or Lessees to grant or withhold consent, for any reason or for no reason, to an assignment.
Release of Lessee Upon Assignment
(d) If the Lease shall be assigned in compliance herewith, the Lessee-assignor shall have no further liability on any of the covenants of this Lease to be thereafter performed.
Further Assignment or Subletting
(e) Regardless of any prior consent theretofore given, neither the Lessee nor his executor, nor administrator, nor any trustee or receiver of the property of the Lessee, nor anyone to whom the interests of the Lessee shall pass by law shall be entitled further to assign this Lease, or to sublet the apartment or any part thereof, except upon compliance with the requirements of this Lease. The restrictions of the assignment of this Lease, as hereinbefore set forth, are an especial consideration and inducement for the granting of this Lease by the Lessor to the Lessee. No demand or acceptance of rent from any assignee hereof shall constitute or be deemed to constitute a consent to or approval of any assignment.
Statement by Lessor
(f) If this Lease is then in force and effect, the Lessor will, upon request of the Lessee, deliver to the assignee a written statement that this Lease on the date thereof remains in force and effect; but no such statement shall be deemed an admission that there is default under the Lease.
Pledge of Shares and Lease
17. The execution and delivery of a leasehold mortgage and/or the creation of a security interest in the lease and the shares to which this Lease is appurtenant shall not be a violation of this Lease; but, except as provided in Paragraph 39 of this Lease, neither the secured party nor the leasehold mortgagee, nor any transferee of the security shall be entitled to have transferred the shares of record on the books of the Lessor, nor to vote such shares, nor to occupy or permit the occupancy by others of the apartment, nor to sell such shares or this Lease, without first complying with all of the provisions of Paragraphs 15 and 16 of this Lease except subparagraphs (a)(iv) and (vi) and (c) of Paragraph 16. The acceptance by the Lessor of payments by the secured party or leasehold mortgagee or any transferee of the security on account of rent or additional rent shall not constitute a waiver of the aforesaid provision.
Repairs by the Lessee
18. (a) The Lessee shall take possession of the apartment and its appurtenances and fixtures "as is" as of the commencement of the term hereof. Subject to the provisions of Paragraph 4 hereof, the Lessee shall keep the interior of the apartment (including interior walls, floors, and ceilings, but excluding windows, window panes, window frames, sashes, sills, entrance and terrace doors, frames and saddles) in good repair, shall do all of
the painting and decorating required for his apartment, including the interior of window frames, sashes and sills, and shall be solely responsible for the maintenance, repair, and replacement of plumbing, gas and heating fixtures and equipment and such refrigerators, dishwashers, removable and through-the-wall air conditioners, washing machines, ranges and other appliances, as may be in the apartment. Plumbing, gas and heating fixtures as used herein shall include exposed gas, steam and water pipes attached to fixtures, appliances and equipment and the fixtures, appliances and equipment to which they are attached, and any special pipes or equipment which Lessee may install within the wall or ceiling, or under the floor, but shall not include gas, steam, water or other pipes or conduits with the walls, ceilings or floors or air conditioning or heating equipment which is part of the standard Building equipment. The Lessee shall be solely responsible for the maintenance, repair and replacement of all lighting and electrical fixtures, appliances, and equipment. The Lessee shall be solely responsible for the maintenance, repair and replacement of all lighting and electrical fixtures, appliances and equipment, and all meters, fuse boxes, or circuit breakers and electrical wiring and conduits from the junction box at the riser into and through the Lessee's apartment. Any ventilator or air conditioning device which shall be visible from the outside of the Building shall at all times be painted by Lessee in a standard color which the Lessor may select for the building.
Odors and Noises
(b) The Lessee shall not permit unreasonable cooking or other odors to escape into the Building. The Lessee shall not permit or suffer any unreasonable noises or anything which will interfere with the rights of other Lessees or unreasonably annoy them or obstruct the public halls or stairways.
Equipment and Appliances
(c) If, in the Lessor's sole judgment, any of the Lessee's equipment or appliances shall result in damage to the Building or poor quality or interruption of service to other portions of the Building, or overloading of, or damage to facilities maintained by the Lessor for the supplying of water, gas, electricity or air conditioning to the Building, or if any such appliances visible from the outside of the Building shall become rusty or discolored, the Lessee shall promptly, on notice from the Lessor, remedy the condition and, pending such remedy, shall cease using any appliances or equipment which may be creating the objectionable condition.
Rules and Regulations and Requirements of Mortgage
(d) The Lessee will comply with all the requirements of the Board of Fire Underwriters, insurance authorities and all governmental authorities and with all laws, ordinances, rules and regulations with respect to the occupancy or use of the apartment. If any mortgage affecting the Building or the land on which it stands shall contain any provisions pertaining to the right of the Lessee to make changes or alterations in the apartment, or to remove any of the fixtures, appliances, equipment or installations, the Lessee herein shall comply with the requirements of such mortgage or mortgages relating thereto. Upon the Lessee's written request, the Lessor will furnish the Lessee with copies of applicable provisions of each and every such mortgage.
Lessor's Right to Remedy Lessee's Defaults
19. If the Lessee shall fail for thirty (30) days after notice to make repairs to any part of the apartment, its fixtures or equipment as herein required, or shall fail to remedy a condition which has become objectionable to the Lessor for reasons above set forth, or if the Lessee or any person dwelling in the apartment shall request the Lessor, its agents or servants to perform any act not hereby required to be performed by the Lessor, the Lessor may make such repairs, or arrange for others to do the same, or remove such objectionable condition or equipment, or perform such act, without liability on the Lessor, provided that, if the condition requires prompt action, notice of less than thirty (30) days may be given or, in case of emergency, no notice need be given. In all such cases the Lessor, its agents, servants and contractors shall, as between the Lessor and the Lessee, be conclusively deemed to be acting as agents of the Lessee and all contracts therefor made by the Lessor shall be so construed whether or not made in the name of the Lessee. If Lessee shall fail to perform or comply with any of the other covenants or provisions of this Lease within the time required by a notice from the Lessor (not fewer than five  days), then the Lessor may, but shall not be obligated to, comply therewith, and for such purpose may enter upon the apartment of the Lessee. The Lessor shall be entitled to recover from the Lessee all expenses incurred or for which it has contracted hereunder, such expenses to be payable to the Lessee on demand as additional rent.
Increase in Rate of Fire Insurance
20. The Lessee shall not permit or suffer anything to be done or kept in the apartment which will increase the rate of fire insurance on the Building or the contents thereof. If, by reason of the occupancy or use of the apartment by the Lessee, the rate of fire insurance on the Building or an apartment or the contents
of either shall be increased, the Lessee shall (if such occupancy or use continues for more than 30 days after written notice from the Lessor specifying the objectionable occupancy or use) become personally liable for the additional insurance premiums incurred by the Lessor or any Lessee or Lessees of apartments in the Building on all policies affected, and the Lessor shall have the right to collect the same for its benefit or the benefit of any such Lessees as additional rent for the apartment due on the first day of the calendar month following written demand therefor by the Lessor.
21. (a)(i) The Lessee shall not, without first obtaining the written consent of the Lessor, which consent shall not be unreasonably withheld or delayed, make in the apartment or the Building, or on any roof, penthouse, terrace or balcony appurtenant thereto, any alteration, enclosure or addition or any alteration of or addition to the water, gas, or steam risers or pipes, heating or air-conditioning system or units, electrical conduits, wiring or outlets, plumbing fixtures, intercommunication or alarm system or any other installation or facility in the apartment or Building, or except as hereinafter authorized, remove any additions, improvements or fixtures from the apartment. The performance by Lessee of any work in the apartment shall be in accordance with any applicable rule and regulations of the Lessor and governmental agencies having jurisdiction thereof. The Lessee shall not in any case install any appliances which will overload the existing wires or equipment in the Building.
(ii) Anything contained herein or in subparagraph (b) below to the contrary notwithstanding, the written consent of the Lessor shall not be required for any of the foregoing alterations, enclosures, additions made by, or the removal of any additions, improvements or fixtures from the apartment by a holder of "Unsold Shares" (as defined in Paragraph 38).
Removal of Fixtures
(b) If the Lessee, or a prior Lessee; shall have heretofore placed, or the Lessee shall hereafter place, in the apartment, at the Lessee's own expense, any additions, improvements, appliances or fixtures, including but not limited to fireplace mantels, lighting fixtures, refrigerators, air conditioners, dishwashers, washing machines, ranges, woodwork, wall paneling, ceilings, special doors or decorations, special cabinet work, special stair railings or other built-in ornamental items, which can be removed without structural alterations or permanent damage to the apartment, then title thereto shall remain in the Lessee and the Lessee shall have the right, prior to the termination of this
Lease, to remove the same at the Lessee's own expense, provided (i) that the Lessee at the time of such removal shall not be in default in the payment of rent or in the performance or observance of any other covenants or conditions of this Lease; and (ii) that prior to any such removal, the Lessee shall give written notice thereof to the Lessor; and (iii) that the Lessee shall, at the Lessee's own expense, prior to the termination of this lease, repair all damage to the apartment which shall have been caused by either the installation or removal of any such additions, improvements, appliances or fixtures; and (iv) that if the Lessee shall have removed from the apartment any articles or materials owned by the Lessor or its predecessor in title, or any fixtures or equipment necessary for the use of the apartment, the Lessee shall either restore such articles and materials and fixtures and equipment and repair any damage resulting from their removal and restoration, or replace them with others of a kind and quality customary in comparable buildings and satisfactory to the Lessor; and (v) that if any mortgagees had acquired a lien on any such property prior to the execution of this Lease, the Lessor shall have first procured from such mortgagee its written consent to such removal, and any cost and expense incurred by the Lessor in respect thereof shall have been paid by the Lessee.
Surrender on Expiration of Term
(c) On the expiration or termination of this Lease, the Lessee shall surrender to the Lessor possession of the apartment with all additions, improvements, appliances and fixtures then included therein, except as hereinabove provided. Any additions, improvements, fixtures or appliances not removed by the Lessee on or before such expiration or termination of this Lease shall, at the option of the Lessor, be deemed abandoned and shall become the property of the Lessor and may be disposed of by the Lessor without liability or accountability to the Lessee. Any other personal property not removed by the Lessee at or prior to the termination of this Lease may be removed by the Lessor to any place of storage and Lessor in any way being liable for trespass, conversion or negligence by reason of any acts of the Lessor or of the Lessor's agents, or of any carrier employed in transporting such property to the place of storage, or by reason of the negligence of any person in caring for such property while in storage.
Lease Subordinate to Mortgages and Ground Leases
22. This Lease is and shall be subject and subordinate to all present and future ground or underlying leases and to any mortgages now or hereafter liens upon such leases or on the Building and the land on which it stands, and to any and all extensions, modifications, consolidations, renewals and replacements thereof. This clause shall be self-operative and no further instrument of
subordination shall be required by any such mortgagee or ground or underlying lessee. In confirmation of such subordination the Lessee shall at any time, and from time to time, on demand, execute any instruments that may be required by any mortgagee, or by the Lessor, for the purpose of more formally subjecting this Lease to the lien of any such mortgage or mortgages or ground or underlying leases, and the duly elected officers, for the time being, of the Lessor are and each of them is hereby irrevocably appointed the attorney-in-fact and agent of the Lessee to execute the same upon such demand, and the Lessee to execute the same upon such demand, and the Lessee hereby ratifies such instrument hereafter executed by virtue of the power of attorney hereby given.
In the event that a ground or underlying lease is executed and delivered to the holder of a mortgage or mortgages on such ground or underlying lease or to a nominee or designee of or a corporation formed by or for the benefit of such holder, the Lessee hereunder will attorn to such mortgagee or the nominee or designee of such mortgagee or to any corporation formed by or for the benefit of such mortgagee.
23. In case a notice of mechanic's lien against the Building shall be filed purporting to be for labor or material furnished or delivered at the Building or the apartment to or for the Lessee, or anyone claiming under the Lessee, the Lessee shall forthwith cause such lien to be discharged by payment, bonding or otherwise; and if the Lessee shall fail to do so within ten (10) days after notice from the Lessor, then the Lessor may cause such lien go be discharged by payment, bonding or otherwise, without investigation as to the validity thereof or of any offsets or defenses thereto, and shall have the right to collect, as additional rent, all amounts so paid and all costs and expenses paid or incurred in connection therewith, including reasonable attorneys' fees and disbursements, together with interest thereon from the time or times of payment.
24. The Lessee shall always in good faith endeavor to observe and promote the cooperative purposes for the accomplishment of which the Lessor is incorporated.
Right of Entry
25. The Lessor and its agents and their authorized workmen shall be permitted to visit, examine, or enter the apartment and any storage space assigned to the Lessee at any reasonable hour of the day upon notice, or at any time and without notice in case of
emergency, to make or facilitate repairs in any part of the Building or to cure any default by the Lessee and to remove such portions of the walls, floors and ceilings of the apartment and storage space as may be required for any such purpose, but the Lessor shall thereafter restore the apartment and storage space to its proper and usual condition at the Lessor's expense if such repairs are the obligation of the Lessor, or at the Lessee's expense if such repairs are the obligation of the Lessee or are caused by the act or omission of the Lessee or any of the Lessee's family, guests, agents, employees or subtenants. In order that the Lessor shall at all times have access to the apartment or storage rooms for the purposes provided for in this Lease, the Lessee shall provide the Lessor with a key to each lock providing access to the apartment or storage rooms, and if any lock shall be altered or new lock installed, the Lessee shall provide the Lessor with a key thereto immediately upon installation. If the Lessee shall not be personally present to open and permit an entry at any time when an entry therein shall be necessary or permissible hereunder and shall not have furnished a key to the Lessor, the Lessor or the Lessor's agents (but, except in an emergency, only when specifically authorized by an officer of the Lessor or an officer of the managing agent) may forcibly enter the apartment or storage space without liability for damages by reason thereof (if during such entry the Lessor shall accord reasonable care to the Lessee's property), and without in any manner affecting the obligation and covenants of this Lease. The right and authority hereby reserved do not impose, nor does the Lessor assume by reason thereof, any responsibility or liability for the care or supervision of the apartment, or any of the pipes, fixtures, appliances or appurtenances therein contained, except as herein specifically provided.
26. The failure of the Lessor to insist, in any one or more instances, upon a strict performance of any of the provisions of this Lease, or to exercise any right or option herein contained, or to serve any notice, or to institute any action or proceeding, shall not be construed as a waiver, or a relinquishment for the future, of any such provisions, options or rights, but such provision, option or right shall continue and remain in full force and effect. The receipt by the Lessor of rent, with knowledge of the breach of any covenant hereof, shall not be deemed a waiver of such breach, and no waiver by the Lessor of any provision hereof shall be deemed to have been made unless in a writing expressly approved by the Directors.
27. Any notice by or demand from either party to the other shall be duly given only if in writing and sent by certified or
registered mail, return receipt requested: if by the Lessee, addressed to the Lessor at the Building with a copy sent by regular mail to the Lessor's managing agent; if to the Lessee, addressed to the Building. Either party may be noticed served in accordance herewith designate a different address for service of such notice or demand. Notices or demands shall be deemed given on the date when mailed.
Reimbursement of Lessor's Expenses
28. If the Lessee shall at any time be in default hereunder and the Lessor shall incur any expense (whether paid or not) in performing acts which the Lessee is required to perform, or in instituting any action or proceeding based on such default, or defending, or asserting a counterclaim in any action or proceeding brought by the Lessee, the expense therof to the Lessor, including reasonable attorneys' fees and disbursements, shall be paid by the Lessee to the Lessor, on demand, as additional rent.
29. (a) The Lessor shall not be liable, except by reason of the Lessor's negligence, for any failure or insufficiency of heat, or of air conditioning (where air conditioning is supplied or air conditioning equipment is maintained by the Lessor), water supply, electric current, gas, telephone, or elevator service or other service to be supplied by the Lessor hereunder, or for interference with light, air, view or other interests of the Lessee. No abatement of rent or other compensation or claim of eviction shall be made or allowed because of the making or failure to make or delay in making any repairs, alterations or decorations to the Building, or any fixtures or appurtenances therein, or for space taken to comply with any law, ordinance or governmental regulation, or for interruption or curtailment of any service agreed to be furnished by the Lessor, due to accidents, alterations or repairs, or to difficulty or delay in securing supplies or labor or other cause beyond Lessor's control, unless due to the Lessor's negligence. Nothing herein shall be deemed to relieve the Lessor of any obligations which it may have pursuant to the statutory warranty of habitability set forth in Section 235-b of the Real Property Law.
Storage Space and Laundry
(b) If the Lessor shall furnish to the Lessee any storage bins or space, the use of the laundry, or any facility outside the apartment, including but not limited to television antenna, the same shall be deemed to have been furnished gratuitously by the Lessor under a revocable license. The Lessee shall not use such storage space for the storage of valuable or perishable
property and such storage space assigned to the Lessee shall be kept by the Lessee clean and free of combustibles. If washing machines or other equipment are made available to the Lessee, the Lessee shall use the same on the understanding that such machines or equipment may or may not be in good order and repair and that the Lessor is not responsible for such equipment, nor for any damage caused to the property of the Lessee resulting from the Lessee's use thereof, and that any use that the Lessee may make of such equipment shall be at his own cost, risk and expense.
Automobiles and Other Property
(c) The Lessor shall not be responsible for any damage to any automobile or other vehicle left in the care of any employee of the Lessor by the Lessee, and the Lessee hereby agrees to hold the Lessor harmless from any liability arising from any injury to person or property caused by or with such automobile or other vehicle while in the care of such employee. The Lessor shall not be responsible for any property left with or entrusted to any employee of the Lessor, or for the loss of or damage to any property within or without the apartment by theft or otherwise.
30. The Lessee will not require, permit, suffer or allow the cleaning of any window in the premises from the outside (within the meaning of Section 202 of the New York Labor Law) unless the equipment and safety devices required by law, ordinance, rules and regulations, including, without limitation, Section 202 of the New York Labor Law, are provided and used, and unless the industrial code of the State of New York is dully complied with; and the Lessee hereby agrees to indemnify the Lessor and its employees, other lessees, and the managing agent, for all losses, damages or fines suffered by them as a result of the Lessee's requiring, permitting, suffering or allowing any window in the premises to be cleaned from the outside in violation of the requirements of the aforesaid laws, ordinances, regulations and rules.
Termination of Lease by Lessor
31. If upon, or at any time after, the happening of any of the events mentioned in subdivisions (a) to (i) inclusive of this Paragraph 31, the Lessor shall give to the Lessee a notice stating that the term hereof will expire on a date at least five (5) days thereafter, the term of this lease shall expire on the date so fixed in such notice as fully and completely as if it were the date herein definitely fixed for the expiration of the term, and all right, title and interest of the Lessee hereunder shall thereupon wholly cease and expire, and the Lessee shall thereupon quit and surrender the apartment to Lessor, it being the intention of
the parties hereto to create hereby a conditional limitation, and thereupon the Lessor shall have the right to re-enter the apartment and to remove all persons and personal property therefrom, either by summary dispossess proceedings, or by any suitable action or proceeding at law or in equity, or by force or otherwise, and to repossess the apartment in its former estate as if this Lease had not been made, and no liability whatsoever shall attach to the Lessor by reason of the exercise of the right of re-entry, repossession and removal herein granted and reserved.
Lessee Ceasing to Own Accompanying Shares
(a) If the Lessee shall cease to be the owner of the shares to which this Lease is appurtenant, or if this Lease shall pass or be assigned to anyone who is not then the owner of all said shares;
Lessee Becoming a Bankrupt; Appointment of Receiver; Assignment for Creditors; Levy On Shares; Transfer by Operation of Law; Transfer Pursuant to Pledge, Mortgage or Security Agreement
(b) If at any time during the term of this Lease (i) the then holder hereof shall be adjudicated a bankrupt under the laws of the United States; or (ii) a receiver of all of the property of such holder or of this Lease shall be appointed under any provision of the laws of the State of New York, or under any statute of the United States, or any statute of any state of the United States and the order appointing such receiver shall not be vacated within thirty (30) days; or (iii) such holder shall make a general assignment for the benefit of creditors; or (iv) any of the shares owned by such holder to which this Lease is appurtenant shall be duly levied upon under the process of any court whatever unless such levy shall be discharged within (30) days; or (v) this Lease or any of the shares to which it is appurtenant shall pass by operation of law or otherwise to anyone other than the Lessee herein named or a person to whom such Lessee has assigned this Lease in the manner herein permitted, but this subsection (vi) shall not be applicable if this Lease shall devolve upon the executors or administrators of the Lessee and provided that within eight (8) months (which period may be extended by the Directors) after the death said Lease and shares shall have been transferred to any assignee in accordance with Paragraph 16 hereof; or (vii) this Lease or any of the shares to which it is appurtenant shall pass to anyone other than the Lessee herein named by reason of a default by the Lessee under a pledge or security agreement or a leasehold mortgage made by the Lessee;
Assignment, Subletting or Unauthorized Occupancy
(c) Subject to the provisions of Paragraph 39 hereof, if there be an assignment of this Lease, or any subletting hereunder,
without full compliance with the requirements of Paragraphs 15 or 16 hereof; or if any person not authorized by Paragraph 14 shall be permitted to use or occupy the apartment, and the Lessee shall fail to cause such unauthorized person to vacate the apartment within ten (10) days after written notice from the Lessor;
Default in Rent
(d) If the Lessee shall be in default for a period of one (1) month in the payment of any rent or additional rent or of any installment thereof and shall fail to cure such default within ten (10) days after written notice from the Lessor;
Default in Other Covenants
(e) If the Lessee shall be in default in the performance of any covenant or provision hereof, other than the covenant to pay rent, and such default shall continue for thirty (30) days after written notice from the Lessor, provided, however, that if said default consists of the failure to perform any act the performance of which requires any substantial period of time, then if within said period of thirty (30) days such performance is commenced and thereafter diligently prosecuted to conclusion without delay and interruption, the Lessee shall be deemed to have cured said default;
(f) If at any time the Lessor shall determine, upon the affirmative vote of (i) 80% of the members of the then Board of Directors and (ii) the record holders of at least two-thirds (2/3) in amount of its then issued and outstanding shares, at a shareholders' meeting duly called for that purpose, that because of objectionable conduct on the part of the Lessee, or of a person dwelling or visiting in the apartment, repeated after written notice from the Lessor, the tenancy of the Lessee is undesirable (it being understood, without limiting the generality of the foregoing, that repeatedly to violate or disregard the House Rules hereto attached or hereafter established in accordance with the provisions of this Lease, or to permit or tolerate a person of dissolute, loose or immoral character to enter or remain in the Building or the apartment, shall be deemed to be objectionable conduct);
Termination of All Proprietary Leases
(g) If at any time the Lessor shall determine, upon the affirmative vote of two-thirds (2/3) of its then Board of Directors at a meeting of such Directors duly called for that purpose,
and the affirmative vote of the record holders of at least two-thirds (2/3) in amount of its then issued and outstanding shares, at a shareholders' meeting duly called for that purpose, to terminate all Proprietary Leases;
Destruction of Building
(h) If the Building shall be destroyed or damaged and the shareholders shall decide not to repair or rebuild as provided in Paragraph 4;
(i) If at any time the Building or a substantial portion thereof shall be taken by condemnation proceedings.
Lessor's Rights After Lessee's Default
32. (a) In the event the Lessor resumes possession of the apartment, either by summary proceedings, action of ejectment or otherwise, because of default by the Lessee in the payment of any rent or additional rent due hereunder, or on the expiration of the term pursuant to a notice given as provided in Paragraph 31 hereof upon the happening of any event specified in subsections (a) to (f) inclusive of Paragraph 31, the Lessee shall continue to remain liable for payment of a sum equal to the rent which would have become due hereunder and shall pay the same in installments at the time such rent would be due hereunder. No suit brought to recover any installment of such rent or additional rent shall prejudice the right of the Lessor to recover any subsequent installment. After resuming possession, the Lessor may, at its option, from time to time (i) relet the apartment for its own account, or (ii) relet the apartment as the agent of the Lessee, in the name of the Lessee or in its own name, for a term or terms which may be less than or greater than the period which would otherwise have constituted the balance of the term of this Lease, and may grant concessions or free rent, in its discretion. Any reletting of the apartment shall be deemed for the account of the Lessee, unless within ten (10) days after such reletting the Lessor shall notify the Lessee that the premises have been relet for the Lessor's own account. The fact that the Lessor may have relet the apartment as agent for the Lessee shall not prevent the Lessor from thereafter notifying the Lessee that it proposes to relet the apartment for its own account. If the Lessor relets the apartment as agent for Lessee, it shall, after reimbursing itself for its expenses in connection therewith, including leasing commissions and a reasonable amount for attorneys' fees and expenses, and decorations, alterations and repairs in and to the apartment, apply the remaining avails of such reletting against the Lessee's continuing obligations
hereunder. There shall be a final accounting between the Lessor and the Lessee upon the earliest of the four (4) following dates: (A) the date of expiration of the term of this Lease as stated on page 1 hereof; (B) the date as of which a new Proprietary Lease covering the apartment shall have become effective; (C) the date the Lessor gives written notice to the Lessee that it has relet the apartment for its own account; (D) the date upon which all Proprietary Leases of the Lessor terminate. From and after the date upon which the Lessor becomes obligated to account to the Lessee, as above provided, the Lessor shall have no further duty to account to the Lessee for any avails of reletting and the Lessee shall have no further liability for sums thereafter accruing hereunder, but such termination of the Lessee's liability shall not affect any liabilities theretofore accrued.
Collection of Rent from Subtenants
(b) If the Lessee shall at any time sublet the apartment and shall default in the payment of any rent or additional rent, the Lessor may, at its option, as long as such default shall continue, demand and receive from the subtenant the rent due or becoming due from such subtenant to the Lessee, and apply the amount to pay sums due and to become due from the Lessee to the Lessor. Any payment by a subtenant to the Lessor shall constitute a discharge of the obligation of such subtenant to the Lessee, to the extent of the amount so paid. The acceptance of rent from any subtenant shall not be deemed a consent to or approval of any subletting or assignment by the Lessee, or a release or discharge of any of the obligations of the Lessee hereunder.
Sales of Shares
(c) Upon the termination of this lease under the provision of subdivisions (a) to (f) inclusive of Paragraph 31, the Lessee shall surrender to the corporation the certificate for the shares of the corporation owned by the Lessee to which this lease is appurtenant. Whether or not said certificate is surrendered, the Lessor may issue a new Proprietary Lease for the apartment and issue a new certificate for the shares of the Lessor owned by the Lessee and allocated to the apartment when a purchaser therefor is obtained, provided that the issuance of such shares and such lease to such purchaser is authorized by a resolution of the Directors, or by writing signed by a majority of the Directors or by Lessees owning, of record, at least a majority of the shares of the Lessor accompanying Proprietary Leases then in force. Upon such issuance the certificate owned or held by the Lessee shall be automatically cancelled and rendered null and void. The Lessor shall apply the proceeds received for the issuance of such shares towards the payment of the Lessee's indebtedness hereunder,
including interest, attorneys' fees and other expenses incurred by the Lessor, and, if the proceeds are sufficient to pay the same, the Lessor shall pay over any surplus to the Lessee, but, if insufficient, the Lessee shall remain liable for the balance of the indebtedness. Upon the issuance of any such new Proprietary Lease and certificate, the Lessee's liability hereunder shall cease and the Lessee shall only be liable for rent and expenses accrued to that time. The Lessor shall not, however, be obligated to sell such shares and appurtenant lease or otherwise make any attempt to mitigate damages.
Waiver of Right of Redemption
33. The Lessee hereby expressly waives any and all right of redemption in case the Lessee shall be dispossessed by judgment or warrant of any court or judge. The words "enter", "re-enter" and "re-entry" as used in this lease are not restricted to their technical legal meaning.
Surrender of Possession
34. Upon the termination of this lease under the provisions of subdivisions (a) to (f), inclusive, of Paragraph 31, the Lessee shall remain liable as provided in Paragraph 32 of this lease. Upon the termination of this lease under any other of its provisions, the Lessee shall be and remain liable for all rent, additional rent and other charges due or accrued and to perform all covenants and agreements of the Lessee up to the date of such termination. On or before any such termination the Lessee shall vacate the apartment and surrender possession thereof to the Lessor or its assigns, and upon demand of the Lessor or its assigns, shall execute, acknowledge and deliver to the Lessor or its assigns any instrument which may reasonably be required to evidence the surrendering of all estate and interest of the Lessee in the apartment, or in the Building of which it is a part.
Lessee's Option to Cancel
35. (a) This lease may be cancelled by the Lessee on September 30, 1988 or any September 30th thereafter, upon complying with all the provisions hereinafter set forth. Irrevocable written notice of intention to cancel must be given by the Lessee to the Lessor on or before April 1 in the calendar year in which such cancellation is to occur. At the time of the giving of such notice of intention to cancel there must be deposited with the Lessor by the Lessee:
(i) the Lessee's counterpart of this lease with a written assignment in form required by the Lessor, in blank, effective as of August 31 of the year of cancellation, free from all subleases, tenancies, liens, encumbrances and other charges whatsoever (except rights of occupancy of third parties existing on the date the Lessor acquired title to the Building);
(ii) the Lessee's certificate for his shares of the Lessor, endorsed in blank for transfer and with all necessary transfer tax stamps affixed and with payment of any transfer taxes due thereon;
(iii) a written statement setting forth in detail those additions, improvements, fixtures or equipment to which the Lessee has under the terms of this lease, the right to and intends to remove.
Removal of Fixtures; Possession
(b) All additions, improvements, appliances and fixtures which are removable under the terms of this lease and which are enumerated in the statement made as provided in subdivision (iii) above shall be removed by the Lessee prior to August 31st of the year of cancellation, and on or before said August 31st the Lessee shall deliver possession of the apartment to the Lessor in good condition with all required equipment, fixtures and appliances installed and in proper operating condition and free from all subleases and tenancies, liens, encumbrances and other charges (except as aforesaid) and pay to the Lessor all rent and other charges which shall be payable under this lease up to and including the following September 30th.
Permission to Show and Occupy Premises
(c) The Lessor and its agents may show the apartment to prospective lessees, contractors and architects at reasonable times after notice of the Lessee's intention to cancel. After August 31st or the earlier vacating of the apartment, the Lessor and its agents, employees and lessees may enter the apartment, occupy the same and make such alterations and additions therein as the Lessor may deem necessary or desirable without diminution or abatement of the rent due hereunder.
Effective Date of Cancellation
(d) If the Lessee is not otherwise in default hereunder and if the Lessee shall have timely complied with all of the provisions
of subdivisions (a) and (b) hereof, then this lease shall be cancelled and all rights, duties and obligations of the parties hereunder shall cease as of the September 30th fixed in said notice, and the shares of Lessor shall become the absolute property of the Lessor, provided, however, that the Lessee shall not be released from any indebtedness owing to the Lessor on said last mentioned date.
Rights on Lessee's Default
(e) If the Lessee shall give the notice but fail to comply with any of the other provisions of this paragraph, the Lessor shall have the option at any time prior to September 30th of (i) returning to the Lessee this lease, the certificate for shares and other documents deposited, and thereupon the Lessee shall be deemed to have withdrawn the notice of intention to cancel this lease, or (ii) treating this lease as cancelled as of the September 30th named in the notice of intention to cancel as the date for the cancellation of such lease, and bringing such proceedings and actions as it may deem best to enforce the covenants of the Lessee is required to make hereunder, together with reasonable attorneys' fees and expenses.
Extension of Option to Cancel
36. (a) If on April 1st in any year the total number of shares owned by Lessees holding Proprietary Leases for apartments in the building who have given notice pursuant to Paragraph 35 of intention to cancel such proprietary leases on September 30th of said year shall aggregate ten percent (10%) or more of the Lessor's outstanding shares, exclusive of treasury shares, then the Lessor shall, prior to April 30th in such year, give a written notice to the holders of all issued and outstanding shares of the Lessor, stating the total number of shares then outstanding and in its treasury and the total number of shares owned by Lessees holding proprietary leases who have given notice of intention to cancel. In such case the Proprietary Lessees to whom such notice shall have been given shall have the right to cancel their leases in compliance with the provisions of Paragraph 35 thereof, provided only that written notice of the intention to cancel such leases shall be given on or before July 1st instead of April 1st.
Right of Lessees to Cancel
(b) If lessees owning at least two-thirds (2/3) of the then issued and outstanding shares of the Lessor shall exercise the option to cancel their leases in one year, then this and all other Proprietary Leases shall thereupon terminate on the September 30th of the year in which such options shall have been exercised, as though every Lessee had exercised such option.
In such event none of the Lessees shall be required to surrender his shares to the Lessor and all certificates for shares delivered to the Lessor by those who had, during that year, served notice of intention to cancel their leases under the provisions hereof shall be returned to such Lessees.
Continuance of Cooperative Management of Building After All Lease Terminated
37. No later than thirty (30) days after the termination of all Proprietary Leases for space in the Building, whether by expiration of their terms or otherwise, a special meeting of shareholders of the Lessor shall take place to determine whether (a) to continue to operate the Building as a residential apartment building, (b) to alter, demolish or rebuild the Building or any part thereof, or (c) to sell the Building and liquidate the assets of the Lessor, and the Directors shall carry out the determination made by the holders of a majority of the shares of the Lessor then issued and outstanding at said meeting of shareholders of the Lessor, and all of the holders of the then issued and outstanding shares of the Lessor shall have such rights as enure to shareholders of corporations having title real estate.
38. (a) The term "Unsold Shares" means and refers to shares of the Lessor which have been issued or transferred either to individuals produced by the Sponsor of the Offering Statement - A Plan to Convert to Cooperative Ownership the premises owned by Lessor ("Plan") (including, without limitation, individual partners of the Sponsor or individual shareholders of any such partner) to acquire Unsold Shares as provided ins Section 17 of the Plan, or by a nominee(s) or designee(s) of individuals; and all shares which are Unsold Shares retain their character as such (regardless of transfer) until the holder thereof purchases for occupancy (by himself or a member of his family) the apartment to which such shares are allocated.
Subletting Apartment and Sale of Shares
(b) Neither the subletting of the apartment from time to time nor the assignment of this lease by the holder of Unsold Shares allocated to the apartment, or by a Purchaser for Investment of Resale, as that term is defined in the Plan, shall require the consent of the Directors or shareholders to which reference is made in paragraph 15 and 16 of this lease. A holder of Unsold Shares and/or a Purchaser for Investment or Resale shall not be required to pay any sums for expenses of the Lessor and its managing agent as set forth in subparagraph (a) (iv) of said Paragraph 16,
pay any other tax, fee or charge, administrative or otherwise, in connection with a sublease of the Apartment or assignment of the Proprietary Lease or furnish a search or certificate as set forth in subparagraph (a) (v) of said Paragraph 16.
Change in Form of Lease
(c) Without the Lessee's consent, no change in the form, terms or conditions of this lease, as permitted by Paragraph 6, shall (i) affect the rights of a (x) holder of Unsold Shares allocated to the apartment and/or (y) Purchaser for Investment or Resale, to sublet the apartment or to assign this lease, as hereinbefore provided in this Paragraph 38, or (ii) eliminate or modify any other rights, privileges or obligations of such holder of Unsold Shares or Purchaser for Investment or Resale.
(d) At the request of Lessee, Lessor shall enter into an agreement (commonly known as recognition agreement) with any lender designated by Lessee who has agreed to extend financing to Lessee or to a purchaser to whom a block of Unsold Shares is to be resold, without charge to Lessee, the purchaser buying such block of Unsold Shares or the proposed lender.
Non-Interference with Unsold Shareholders
(e) Lessee hereby designates the "Sponsor" (as defined in the Plan) as holder of Unsold Shares, and any other holder of Unsold Shares designated by the Sponsor, severally as its attorney-in-fact with respect to all matters requiring the cooperation of the Apartment Corporation which relate to the exercise or protection of rights of the holders of Unsold Shares under the Plan, the Lease or the accompanying By-Laws. Lessor agrees that if Lessor fails to fulfill any obligation required in order to implement or protect the rights of holders of Unsold Shares under the Plan or this Lease or the By-Laws, any person holding the power of attorney will have the right to act as the attorney-in-fact for Lessor in order to facilitate the fulfillment of those obligations. The holder of the power of attorney shall have the right (among others) to draft, present, execute and record documents as attorney-in-fact for and on behalf of the Apartment Corporation. This power of attorney is assignable to any holder of Unsold Shares in connection with the offering. The power of attorney is coupled with an interest and is irrevocable.
Restriction on Cancellation
(f) The provisions of Paragraph 35 may not be availed of by a Lessee who is the holder of a block of Unsold Shares
accompanying this lease unless (i) Lessees owning a majority of Lessor's outstanding shares shall have given notice of intention to cancel pursuant to Paragraphs 35 or 36 or (ii) all Unsold Shares constitute fifteen percent (15%) or less of Lessor's outstanding shares, at least five (5) years have elapsed since Lessor acquired title to the Building and on the effective date of cancellation Lessee shall pay to Lessor a sum equal to the product of the then current rent (maintenance charges) payable under this lease multiplied by 24.
Right to Show Premises
(g) Anything contained in this lease and the House Rules annexed hereto the contrary notwithstanding, Lessor shall not prevent nor unreasonably impede or interfere with the sale of any block of Unsold Shares or the subletting of an apartment to which a block of Unsold Shares is allocated and agrees that a holder of Unsold Shares shall have the right to display "For Sale" and "For Rent" signs and similar promotional signs and material on or about the exterior of the building, the lobby and apartments leased by a holder of Unsold Shares. In addition, such holders, their employees, and prospective purchasers of Unsold Shares shall be given access to the public areas of the Property, including (without limitation) the lobbies, elevators and hallways, for purposes of ingress and egress, without being subject to any charge or fee therefor.
Rights of a Secured Party
39. (a) The Lessor agrees that it shall give to any holder of a security interest in the shares of the Lessor specified in the recitals of this lease or mortgage of this lease ("Secured Party"), who so requests, a copy of any notice of default which the Lessor gives to the Lessee pursuant to the terms of this lease, and if the Lessee shall fail to cure the default specified in such notice within the time and in the manner provided for in this lease, then the Secured Party shall have an additional period of time, equal to the time originally given to the Lessee, to cure said default for the account of the Lessee or to cause same to be cured, and the Lessor will not act upon said default unless and until the time in which the Secured Party may cure said default or cause same to be cured as aforesaid shall have elapsed, and the default shall not have been cured.
(b) If this lease is terminated by the Lessor as provided in Paragraphs 31 or 35 of this lease, or by agreement with the Lessee, (1) the Lessor promptly shall give notice of such termination to the Secured Party and (2) upon request of the Secured Party made within thirty (30) days of the giving of such notice
the Lessor (i) shall commence and prosecute a summary dispossess proceeding to obtain possession of the apartment, all at the expense of the Secured Party, and (ii) shall within sixty (60) days of its receipt of the aforesaid request by the Secured Party, reissue the aforementioned shares to, and shall enter into a new Proprietary Lease for the apartment with, any individual designated by the Secured Party, or the individual nominee of the individual so designated by the Secured Party, all without the consent of the Directors or the shareholders to which reference is made in Paragraphs 16(a) (vi) and 32(c), provided, however, that the Lessor shall have received payment, on behalf of the Lessee, of all rent, additional rent and other sums owed by the Lessee to the Lessor under this lease for the period ending on the date of re-issuance of the aforementioned shares of the Lessor including, without limitation, sums owed under Paragraph 32 (a) and (c) of this lease; the individual designated by the Secured Party (if and as long as such individual [by himself or a member of his family] does not actually occupy the apartment) shall have all of the rights provided for in Paragraphs 15, 16, 21, and 38 of this lease as if he were a holder of Unsold Shares; and accordingly, no surplus shall be payable by the Lessor to the Lessee as otherwise provided in Paragraph 32(c).
(c) If the purchase by the Lessee of the shares allocated to the apartment was financed by a loan made by an institution or at any time held by an institution (which shall mean any bank, savings or commercial bank, Savings and Loan Association, trust company or life insurance company), the Sponsor of the Plan or any principal thereof, and a default or an event of default shall have occurred under the terms of the security agreement leasehold mortgage or either of them entered into between the Lessee and the Secured Party, and if (i) notice of said default or event of default shall have been given to the Lessor, (ii) an individual designated by the Secured Party, or the individual nominee of the individual so designated by the Secured Party, shall be entitled to become the owner of the shares and the Lessee under this lease pursuant to the terms of said security agreement leasehold mortgage, either of them (iii) not less than five (5) days written notice of an intended transfer of the shares and this lease shall have been given to the Lessor and the Lessee. (iv) there has been paid, on behalf of the Lessee, all rent, additional rent and other sums owed by the Lessee to the Lessor under this lease for the period ending on the date of transfer of the aforementioned shares as hereinafter provided, and (v) the Lessor shall be furnished with such affidavits, certificates, and opinions of counsel, in form and substance reasonably satisfactory to the Lessor, indicating that the foregoing conditions (i) through (iv) have been met, then (A) a transfer of the shares and the Proprietary
Lease shall be made to such individuals, upon request, and without the consent of the Directors or the shareholders to which reference is made in Paragraph 16, provided such transfer is approved by the Lessor's then managing agent (such approval not to be unreasonably withheld or delayed) and (B) the individual to whom such transfer is made (if and as long as such individual [by himself or a member of his family] does not actually occupy the apartment) shall have all of the rights provided for in Paragraphs 15, 16, 21 and 38 of this lease as if he were a holder of Unsold Shares.
(d) Without the prior written consent of any Secured Party who has requested a copy of any notice of default as herein before provided in subparagraph (a) of this Paragraph 39, (i) the Lessor and the Lessee will not enter into any agreement modifying or canceling this lease; (ii) no change in the form, terms or conditions of this lease, as permitted by Paragraph 6, shall eliminate or modify any rights, privileges or obligations of a Secured Party as set forth in this Paragraph 39; (iii) the Lessor will not terminate or accept a surrender of this lease, except as provided in paragraphs 31 or 35 of this lease and in subparagraph (a) of this Paragraph 39; (iv) the Lessee will not assign this lease or sublet the apartment; (v) any modification, cancellation, surrender, termination or assignment of this lease or any sublease of the apartment not made in accordance with the provisions hereof shall be void and of no effect; (vi) the Lessor will not consent to any further mortgage on this lease or security interest created in the shares; (vii) the Lessee will not make any further mortgage or create any further security interest in the shares or this lease, and (viii) any such further mortgage or security interest shall be void and of no effect.
(e) Any designee of the Secured Party to whom a transfer of a lease shall have been made pursuant to the terms of subparagraphs (b) and (c) hereof may cancel this lease under the terms of Paragraph 35 hereof; except that such designee (i) may cancel this lease at any time after the designee acquires this lease and the shares appurtenant hereto due to foreclosure of the security agreement-leasehold mortgage; (ii) need give only thirty (30) days notice of its intention to cancel; and (iii) may give such notice at any time during the calendar year.
(f) Lessor shall not unreasonably refuse or delay to enter into an agreement ("Recognition Agreement") between Lessor and a Secured Party (to which Lessee may also be a party), in which the foregoing provisions and other additional provisions as may be agreed upon are contained, provided that (i) the Secured Party is a bank, savings and loan association, trust company,
insurance company or other institutional lender, or the Sponsor or holder of Unsold Shares; and (ii) the proposed Recognition Agreement is reasonable in its terms, and is not materially more onerous to Lessor than other Recognition Agreements then customarily used by financial institutions in the City of New York.
Foreclosure - Receiver of Rents
40. Notwithstanding anything to the contrary contained in this lease, if any action shall be instituted to foreclose any mortgage on the land or the Building or the leasehold of the land or Building, the Lessee shall, on demand, pay to the receiver of the rents appointed in such action rent, if any, owing hereunder on the date of such appointment and shall pay thereafter to such receiver in advance, on the first day of each month during the pendency of such action, as rent hereunder, the rent for the apartment as last determined and established by the Directors prior to the commencement of said action, and such rent shall be paid during the period of such receivership, whether or not the Directors shall have determined and established the rent payable hereunder for any part of the period during which such receivership may continue. The provisions of this Paragraph are intended for the benefit of present and future mortgagees of the land or the Building or the leasehold of the land or Building and may not be modified or annulled without the prior written consent of any much mortgage holder.
To Whom Covenants Apply
41. The references herein to the Lessor shall be deemed to include its successors and assigns, and the references herein to the Lessee or to a shareholder of the Lessor shall be deemed to include the executors, administrators, legal representatives, legatees, distributees, and assigns of the Lessee or of such shareholder; and the covenants herein contained shall apply to, bind and enure to the benefit of the Lessor and its successors and assigns, and the Lessee and the executors and administrators, legal representatives, legatees, distributees and assigns of the Lessee, except as hereinabove stated.
Waiver of Trial by Jury
42. To the extent permitted by law, 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 on any matters whatsoever arising out of or in any way connected with this lease, the Lessee's use or occupancy of the apartment, or any claim of damage resulting from any act or omission of the parties in any way connected with this lease or the apartment.
Lessor's Additional Remedies
43. In the event of a breach or threatened breach by Lessee of any provision hereof, the Lessor shall have the right of injunction and the right to invoke any remedy at law or in equity, as if re-entry, summary proceedings and other remedies were not herein provided for, and the election of one or more remedies shall not preclude the Lessor from any other remedy.
Lessee More Than One Person
44. If more than one person is named as Lessee hereunder, the Lessor may require the signatures of all such persons in connection with any notice to be given or action to be taken by the Lessee hereunder, including, without limiting the generality of the foregoing, the surrender or assignment of this lease, or any request for consent to assignment or subletting. Each person named as Lessee shall be jointly and severally liable for all of the Lessee's obligations hereunder. Any notice by the Lessor to any person named as Lessee shall be sufficient, and shall have the same force and effect as though given to all persons named as Lessee.
Notice of Default to Lessor
45. The Lessee may not institute an action or proceeding against the Lessor or defend or make a counterclaim in any action by the Lessor related to the Lessee's failure to pay rent, if such action, defense or counterclaim is based upon the Lessor's failure to pay rent, if such action, defense or counterclaim is based upon the Lessor's failure to comply with its obligations under this lease or any law, ordinance or governmental regulation unless such failure shall have continued for thirty (30) days after the giving of written notice thereof by the Lessee to the Lessor.
Unity of Shares and Lease
46. The shares of the Lessor held by the Lessee and allocated to the apartment have been acquired and are owned subject to the following conditions agreed upon with the Lessor and with each of the other proprietary lessees for their mutual benefit:
(a) the shares represented by each certificate are transferable only as an entirety;
(b) the shares shall not be sold except to the Lessor or to an assignee of this lease after compliance with all of the provisions of Paragraph 16 of this lease relating to assignments; and
(c) the shares represented by each certificate and the accompanying proprietary lease are subject to a first lien of the corporation, as described in the by-laws.
Effect of Partial Invalidity
47. If any clause or provision herein contained shall be adjudged invalid, the same shall not affect the validity of any other clause or provision of this lease, or constitute any cause of action in favor of either party as against the other.
48. The marginal headings of the several paragraphs of this lease shall not be deemed a part of this lease, nor used as evidence of the intent of the parties.
Changes to be in Writing
49. The provisions of this lease cannot be changed orally.
50. Lessor will not discriminate against any person because of race, creed, religion, color, national origin, ancestry, sex, disability or other ground proscribe by law when exercising any right reserved to it in this lease.
Limitations on Increase in Cash Requirements
51. As long as Unsold Shares constitute twenty-five percent (25%) or more of the outstanding shares of Lessor and not more than three (3) years have elapsed since the Lessor acquired title to the Building, Lessor shall not take any of the following actions unless Lessees owning at least seventy-five percent (75%) of all issued and outstanding shares of Lessor approve the same in writing, or by vote at a duly constituted meeting called for such purpose:
(a) Increase the number or change the type of employees from that described in the Plan;
(b) Provide for additional services not provided for in the Plan unless the annual cost of such additional services, when added to the annual cost of all other services being provided, is not greater than the expenses provided for in the Plan, adjusted for inflation by the lesser of (a) seven percent (7%) per year or (b) the yearly percentage of increase of the Bureau of Labor Statistics Consumer Price Index for all Urban Consumers for New York City-Northeastern New Jersey;
(c) Impose any maintenance or other charges or assessments relating to making any capital or major improvements other than ordinary and necessary repairs to the Building unless required by Law or Lessor's insurer or to prevent a default under a mortgage, or increase the Reserve Fund or Working Capital Fund; or
(d) Increase the amount of reserve for contingencies over the amount set forth in the Schedule of Projected Receipts and Expenses for the First Year of Cooperative Operation, provided that any unused portion of such reserve for any year may be added to the reserve for the following years.
Purchaser for Investment or Resale
52. (a) As used in this Section, the term "Purchaser for Investment or Resale" means a purchaser, other than a Holder of Unsold Shares (as described in Section 19 of the Plan) who purchases shares allocated to three (3) or more apartments, which apartments are not for occupancy by such purchaser or persons related by blood, marriage or adoption to such purchaser.
(b) A Purchaser for Investment or Resale shall not sell the shares allocated to an Apartment unless the Purchaser for Investment or Resale provides the following documents to a prospective purchaser at least three (3) business days before entering into a Purchase Agreement:
(i) Copy of the most recent financial statement of the Lessor, if any.
(ii) Copy of the most recent notice from the Lessor of the interest and taxes deductible for income tax purposes, if any.
(iii) Copies of notices from the Lessor concerning changes in maintenance charges, potential assessments, planned major capital improvements and proposed refinancing of the building's mortgage(s), if any.
(iv) Copies of pleadings in pending lawsuits or proceedings the outcome of which may affect the offering of the apartment, the seller's capacity to perform all of its obligations under the purchase agreement or the rights of an existing tenant of the Apartment, if any.
(v) If the apartment is occupied, a copy of the tenant's lease and a representation of the tenant's status under any applicable rent law and, if applicable, the tenant's status as an Eligible Senior Citizen or Eligible Disabled Person.
(vi) Copies of the By-Laws of Lessor and this lease, as amended.
(vii) Copies of notices, if any, of uncured violations of record in the apartment that are the responsibility of the Lessee to cure, if any.
(c) A Purchaser for Investment or Resale shall be subject to all the other provisions of this lease as if the Purchaser for Investment or Resale were the owner of shares allocated to an apartment which he, or a person related by blood, marriage or adoption is occupying.
Designation of Managing Agent
53. If the apartment is occupied by a non-purchasing tenant as that term is used in Section 352-eeee(3) of the General Business Law of the State of New York and Lessee is not a holder of Unsold Shares (as defined in paragraph 38), then Lessee designates the Lessor's managing agent as the Lessee's agent to provide to the non-purchasing tenant all services and facilities required by law on a non-discriminatory basis. The Lessee shall reimburse the managing agent for all reasonable costs incurred in the provision of any such services which are not provided to all lessees of Lessor under the management agreement between Lessor and the managing agent. In order to secure the obligations of Lessee under this paragraph, Lessee shall be obligated to deposit a sum equal to two months maintenance charges (up to $1,000) with the Managing Agent to be used as working capital to furnish such services. Reimbursement shall be made by Lessee to the managing agent within thirty (30) days of receipt by Lessee of a notice that the fund has been reduced by more than one month's maintenance charges or the cost of the service exceeds the amount of the fund. Any such reimbursement which is not made within said thirty-day period may be paid by the Lessor and assessed to the Lessee as additional rent.
54. If the apartment is occupied by a non-purchasing tenant as defined in Section 352-eeee(1) (e) of the General Business Law,
the Lessee may not commence an action or proceeding to recover possession of the apartment from such non-purchasing tenant on the ground that the Lessee seeks the apartment for the use and occupancy of himself or his family. Such limitation is for the benefit of non-purchasing tenants and in no way abrogates or limits any rights of the Lessee as against the Lessor. The Lessee may commence eviction proceedings against a non-purchasing tenant who occupies the apartment on the grounds of non-payment of rent, illegal use or occupancy of the apartment, refusal or reasonable access to the Lessee or a similar breach by the non-purchasing tenant of his obligations to the Lessee. Any non-purchasing tenant residing in the apartment who was subject to government regulation as to rentals and continued occupancy prior to the conversion of the Building to cooperative ownership shall continue to be subject thereto. If any non-purchasing tenant residing in the apartment is not subject to government regulation as to rental and continued occupancy or if such governmental regulation was or at any time is eliminated or becomes inapplicable after the Plan was accepted for filing by the Attorney general, such non-purchasing tenant shall not be subject to unconscionable increases beyond ordinary rentals for comparable apartments during the period of his occupancy. This Section of this lease may not be amended or deleted.
Charges for Gas and Electricity
55. If at any time or times during the term of this lease the consumption of gas or electricity, or both, in the apartment is measured by a meter which also measures consumption outside the apartment, the Lessor may determine from time to time by resolution of the Board of Directors thereof, the charges, if any, to be paid by the Lessee on account of such consumption of gas or electricity, or both, and any such charges shall be payable monthly in advance or in such payments or installments as shall be required by the Directors, and at such times as shall be provided in such resolution.
Cooperation to Procure Amended Certificate of Occupancy
56. If the apartment is currently used legally for professional purposes and Lessee notifies Lessor that Lessee wishes to procure an amended certificate of occupancy to permit the apartment to be used for residential purposes, Lessor shall cooperate with Lessee to procure the amended certificate, including preparing and executing documents and appearing before agencies of appropriate governmental jurisdiction. All expenses in connection with procuring the amended certificate, including fees and disbursements of attorneys and other experts retained by Lessor, shall be paid by Lessee. In all other respects the Lease shall remain in full force and effect.
57. If any provision of this lease conflicts with the laws of the State of New York, the laws of the State of New York shall prevail. The conflicting provision of this lease shall be void to the extent that it varies from applicable law. Except for the conflicting provision, this lease shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this lease.
511 WEST 232ND OWNERS CORP.
STATE OF NEW YORK )
COUNTY OF )
On the day of , in the year 20 , before me personally appeared , to me known, who being by me duly sworn, did depose and say that he resides at ; that he is the (Vice) President (Secretary) of 511 West 232nd Owners Corp., the corporation described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation; and that he signed h name thereto by like order.
STATE OF NEW YORK )
COUNTY OF )
On the day of , in the year 20 , before me personally appeared , to me personally known and known to be the individual described in and who executed the foregoing instrument, and duly acknowledged to me that he executed the same.