THE VERMEER OWNERS, INC.
PROPRIETARY LEASE
PROPRIETARY LEASE, made as of [DATE] by and between The Vermeer
Owners, Inc., a New York corporation
having an office at 77 Seventh Avenue, New York, New York, 10011,
hereinafter called the Lessor, and [YOUR NAME], residing at [YOUR
ADDRESS] -hereinafter called the Lessee.
Whereas, the
Lessor is the owner of the land and building erected thereon in
the City of New York, known as The Vermeer, 77 Seventh Avenue, New
York, New York 10011; 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;
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 [YOUR APT
NUMBER] in the building (hereinafter referred to as the
"apartment") for a term from [DATE OF INITIAL LEASE] - until
July 1, 2020 (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.
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 requirement. Such maintenance
shall be payable 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 such additional rent
as may be provided for herein where due.
(b) In every
proprietary lease heretofore executed by the Lessor there has been
specified, and in every proprietary lease hereafter executed
Proprietary
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 here in
before provided, the proportionate share of the Lessor's cash
requirements which shall be payable as rent by the Lessee.]
(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 for proper for (i) the
operation, maintenance, care, alteration and improvement
of the corporate property during the year or portion of the
year for which such determination is made; (ii) the creation of
such reserve for contingencies as it may deem proper; (iii) the
payment of, or the establishment of a reserve for, any rentals and
other sums payable under any ground leases covering the property
owned the Lessor; and (iv) the payment of any obligations,
liabilities or expenses incurred (even though incurred during a
prior period) or to be incurred, after giving consideration to (1)
income expected to be received during such period (other than rent
from proprietary leases), and (2) cash on hand which the Directors
in its 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.
(d) Whenever
in this paragraph or 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.
(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, if any, of the maintenance and other receipts 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 of
"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.
(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 the maintenance until a new
determination of cash requirements shall be made.
2. The Lessor
shall at its expense keep in good repair all 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.
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 stairways 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 apartment 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.
4. (a) If the
apartment or the means of access thereto or the building shall be
damaged by fire or
other cause covered by multiple policies commonly carried by
corporations owning "cooperative apartment buildings" in New York
State (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, 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 there- to, 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 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.
(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 a reasonable time after the loss
shall have been adjusted with the insurance carriers, or (iii) the
destruction or damage was caused by hazards which
are 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 of the issued and out- standing shares of the capital
stock of the Lessor, at a shareholders' meeting duly called for
that 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.
(d) The Lessor
agrees to use its best efforts to obtain a provision in all
insurance policies carried by it waiving the right of subrogation
against the Lessee, and, to the extent that any loss or damage is
covered by any insurance policies payable to the Lessor which
contain such waiver of subrogation, the Lessor releases the Lessee
from any liability with respect to such loss or damage. In the
event that the Lessee suffers loss or damage for which the Lessor
would be liable, and the Lessee carries insurance which covers
such loss or damage and such insurance policy or policies contain
a waiver of subrogation against the Lessor then in such event the
Lesee releases the Lessor from any liability with respect to such
loss or damage.
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 the corporate financial affairs, including a
balance sheet and a statement of income and expenses, certified by
an independent certified public accountant.
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 66 2/3% of the Lessor's
shares then issued and outstanding, and executed by the Lessor and
the affected lessee. 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 66 2/3%
of the Lessor's shares then issued and outstanding, 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
lessee affected and (iii) the provisions hereof are subject to the
provisions of Paragraphs 38(c) and 39(d) 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.
7. If the
apartment includes a terrace, balcony, or a portion of the roof
adjoining the apartment, the Lessee shall have and enjoy the
exclusive use of the terrace or balcony or that portion of the
roof appurtenant to his apartment, 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 pre- scribed by the Directors and subject to the
Lessor's right of access thereto when necessary for building
maintenance. The Lessor shall have the 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
screen 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.
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 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.
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 affect after the date of commencement of this lease,
except for claims theretofore arising thereunder.
10. The
Lessee, upon paying the rent and per- forming 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 lawsuit,
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.
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, working 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 to the extent
the Lessor is covered by insurance which provides for waiver of
subrogation against the Lessee.
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 maximum legal rate 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 and adopt
new House Rules. This lease shall be in all respects subject to
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 convenants 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 non-observance or violation of House Rules by
any other lessee or person.
14. The 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 as
a private dwelling for the Lessee and members of the Lessee's
family, but no apartment may be occupied by more than one family
at a time without the
written consent of Lessor. As used herein, members of the family
shall include spouse, parents, children, parents in law, brothers,
sisters, grandchildren or no more than three persons unrelated by
blood or marriage. The term "spouse" as used herein shall also
include a member of the same or opposite sex with whom the Lessee
actually resides. In addition to the foregoing, the apartment may
be occupied from time to time by guests of the Lessee for a period
of time not exceeding one month, unless a longer period is
approved in writing by the 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 the Lessor.
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,
(which consent shall not be unreasonably withheld) 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 66 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, except that
the Directors (acting as a Board) may not impose unreasonable
conditions.
16. (a) Except
as provided otherwise in this lease, 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 acknowledged 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 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 canceled 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
Section iv
updated Sept 1, 2005
(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;
The fee to be charged by the cooperative corporation in
addition to expenses and attorney's fees
is the sum of $32.00 per share
imposed upon each share being transferred. Such fee shall be
deemed an administrative fee. Such administrative fee of $32.00 per share is payable by the Seller
in advance of, or simultaneously with the transfer of such shares
in cash, certified check or bank funds as a condition of such
assignment.
said administrative fee of
$32.00 per share is not imposed,
however, on holders of unsold shares. This
administrative fee is required for transfers where an application
for permission to sell is filed with the Managing Agent of the
apartment corporation on and after the 1st
day of September, 2005. The
Board of Directors of the cooperative corporation shall have the
authority to establish, modify or remove such administrative or
transfer fee by vote of two-thirds (2/3) of its members; and
(v)
A "Tax Status Determination" (as defined in Paragraph 50) is
obtained; and
(vi) A search
or certification is obtained from a title insurance or abstract
company as the Directors may require; and
(vii)
Except in the case of an assignment
transfer or bequest to the Lessee's spouse (as that term is
defined in Paragraph 14), of the shares and this lease, and except
as provided in Paragraphs 17, 38 or 39 of this lease, consent to
such assignment shall have been
authorized by 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 within 30 days after
submission of references to them or the Lessor's managing agent,
then by lessees owning of record at least 66 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 in the manner as provided in the
bylaws.
(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 that term is defined in Paragraph 14 as to whom no
consent is required).
(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, where such consent is required, except that the
Directors (acting as a Board) shall not unreasonably withhold
their consent to an 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.
(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 on the assignment of this lease, as hereinbefore set
forth, are
a special 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.
(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 remains on the date thereof in force and effect; but no
such statement shall be deemed an admission that there is no
default under the lease.
17. (a) The
execution and delivery of a leasehold mortgage and/or the creation
of a security interest in the lease by pledge or otherwise 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 the
shares transferred 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 of this lease, without
first complying with all of the provisions of Paragraphs 14, 15,
and 16 of this lease. 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.
(b) In the
event that the Lessee shall have pledged this lease and the shares
to which it is
appurtenant, and provided
that the pledgee (hereinafter called "the Lender") shall have
given the Lessor's managing agent by ordinary mail notice of the
existence of such pledge, which notice shall be accompanied by (i)
a copy of the note, security agreement and any other relevant
documents, (ii) an undertaking by the Lender,
in form and substance satisfactory to the Lessor, to notify the
Lessor by registered mail (with a copy to the Lessor's managing
agent by ordinary mail) as soon as the loan has been repaid, and
(iii) an undertaking by the Lender, in form and substance
satisfactory to the Lessor, to indemnify the Lessor, its
directors, officers, agents and employees for loss, liability or
expense (including reasonable counsel fees) arising out of any
claims by the Lessee or others because of any action or failure to
take action pursuant to the terms of this paragraph (but such
undertaking may be conditioned upon the Lender having been given
prompt notice by registered mail of such claim and the opportunity
to contest such claim at the Lender's sole cost and expense with
the cooperation of the person or persons against whom the claim is
asserted), then, during the existence of such pledge, the Lessor
shall (notwithstanding any other provision of this lease):
(i) Not take
any action to terminate this lease in the event of a default
unless:
(A) requested
by the Lender to do so; or
(B) the Lender
shall have failed for 20 days after notice to it of the existence
of any default on the part of the Lessee to pay to the Lessor all
sums owing to the Lessor and to cure all other defaults specified
in said notice; or
(C) the Lender
shall after such 20 day period fail to make any payment coming due
after the date of such notice or promptly cure any violation of
which it shall thereafter receive notice.
(ii) reject a
surrender or cancellation of this lease by the Lessee unless
consented to by the Lender.
(iii) withhold
its consent to any assignment by the Lessee of such stock and this
lease unless consented to by the Lender (if such consent is
required under the terms of the pledge).
(iv) accept
from the Lender payment of the rent and other amounts due under
the terms of this lease.
(v) upon the
termination of this lease and the sale of the apartment by the
Lessor, pay to the Lender any sums realized in excess of the
amounts owing to the Lessor (including reasonable expenses
incurred in connection with the sale).
(vi) not
unreasonably withhold its consent to any assignment of such stock
and this lease or a subletting of the apartment at the request of
the Lender.
(c) Anything
to the contrary notwithstanding, the Lessor shall not be liable to
the Lender if through oversight or negligence on its part or the
part of its agents or employees it fails to comply with its
obligations to the Lender under subparagraph (a) or (b)
of this paragraph, provided that (i) the Lessor shall promply
notify the Lender upon discovery of such failure and (ii) the
Lessor shall thereafter insofar as possible comply with such
obligations.
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 to which they are attached, and any
special pipes or equipment which the Lessee may install within the
wall or ceiling, or under the floor, but shall not include gas,
steam, water or other pipes or
conduits within 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, 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 the Lessee in a standard color which
the Lessor may select for the building.
(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 stairway.
(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
services 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 appliance or
equipment which may be creating the objectionable condition.
(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.
19. If the
Lessee shall fail for 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 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 less than 5 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 to be payable by
the Lessee on demand as additional rent.
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 so 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) 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 therto, 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, as may be owned by
the Lessor 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 rules 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. Anything contained herein or
in subparagraph (b) herein below to the contrary not-
not be required for any of the foregoing alterations,
enclosures, additions made by, or the removal of any additions,
improvements of fixtures from the apartment
by a holder of "Unsold Shares," provided the holder does not
permanently encroach upon any public area and complies with any
applicable provisions of local law.
(b) Without
Lessor's written consent, the Lessee shall not remove any
fixtures, appliances, additions or improvements from the apartment
except as hereinafter provided. 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 convenants or conditions of this lease;
and (ii) 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 of such additions,
improvements, appliances or fixtures; (iii) 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 (iv) that if any mortgagee 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.
(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 stored for the account of
the Lessee without the 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.
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 and/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 of 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 hereby ratifies any 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 days after notice from the Lessor, then the
Lessor may cause such lien to 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 alway in good faith endeavor to observe and promote the
cooperative purposes for the accomplishment of which the Lessor is
incorporated.
25. The Lessor
and its agents and their authorized workmen shall be permitted to
visit, examine, or enter the apartment, areas appurtenant thereto,
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 faciliate
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, licensees, agents, employees or subtenants. In order that
the Lessor shall at all times have access to the apartment,
appurtenant area and 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, appurtenant area or
the 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
provisions, options or rights 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 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 Lessee
at the building. Either party may by notice 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.
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
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 thereof 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 from interruption or curtailment of any service
agreed to be furnished by the Lessor, due to accidents,
alterations or repair, or to difficulty or delay in securing
supplies or labor or other cause beyond
Lessor's control, unless due to the Lessor's negligence.
(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 any such storage space
assigned to the Lessee shall be kept by the Lessee clean and free
of toxic, inflammable and combustible materials. 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.
(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, including storage areas, by theft or other- wise.
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 fully 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 law, ordinances,
regulation and rules.
31. If upon,
or at any time after the happening of any of the events mentioned
in subdivisions (a) to (j) 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 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 here- under shall thereupon
wholly cease and expire, and the
Lessee shall thereupon quit and surrender the apartment to the
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, re-possession and removal
herein granted and reserved:
(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;
(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 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 thirty 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 (v) 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 (vi) this lease or any of the shares
to which it is appurtenant shall pass to anyone other than the
Lessee under a pledge or security agreement or a leasehold
mortgage made by the Lessee;
(c) Subject to
the provisions of Paragraphs 38 and 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 days after written
notice from the Lessor;
(d) If the
Lessee shall be in default for a period of one month in the
payment of any rent or additional rent or of any installment
thereof and shall fail to cure such default within ten days after
written notice from the Lessor;
(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 days after written notice from
the Lessor; provided, however, that if said default consists of
the failure to perform any action the performance of which
requires any substantial period of time, then if within said
period of thirty 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 the
record holders of at least 66 2/5% in amount of its then issued
and outstanding shares, at a shareholder's 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 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 provision of
this lease, or to permit or tolerate a person of loose or immoral
character to enter or remain in the building or the apartment,
shall be deemed to be objectionable conduct];
(g) If at any
time the Lessor shall determine, upon the affirmative vote of
two-thirds 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 66 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;
(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; or
(j) If the
Lessee shall be in default in the payment of any note or the
terms, covenants and conditions of any loan security agreement
secured by a pledge of this lease and the shares allocated to the
apartment.
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 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
the 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
Lessee upon the earliest of the four following dates: (A) the date
of expiration of the term of this lease as stated on page I
hereof; (B) the date as of which a new proprietary lease covering
the apartment shall have become effective; (C) the date the Lessor
gives writen 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.
(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
a subletting or assignment by the Lessee, or a release or
discharge of any of the obligations of the Lessee hereunder.
(c) Upon the
termination of this lease under the provisions of subdivisions (a)
to (j) 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 therfor 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
canceled and rendered
null and void. The
Lessor shall apply the proceeds received for the issuance of such
shares toward 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.
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 of judge. The words "enter," re-enter," and "re-entry" as
used in this lease are not restricted to their technical legal
meaning.
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 to pay 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.
35. (a) This
lease may be canceled by the Lessee on any thirtieth of September
after the second anniversary after the date on which the shares of
the Lessor were first issued, 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
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 which the Lessee has, under
the terms of this lease, the right to and intends to remove.
(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 (ii) 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.
(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 lessee 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.
(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 canceled
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.
(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 (i) of 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) of
treating this lease as canceled 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 hereinabove contained and to collect from
the Lessee the payments which the Lessee is required to make
hereunder, together with reasonable attorneys' fees and expenses.
36. (a) If on
April lst 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 hereof, provided
only that written notice of the intention to cancel such leases
shall be given on or before July lst instead of April lst.
(b) If Lessees
owning at least 66 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 37.
go later than thirty 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. 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 then issued and outstanding shares of the Lessor shall
have such rights as enure to shareholders of corporations having
title to real estate.
38. (a) The
Term "Unsold Shares" means and refers to
shares of the Lessor which have been issued or transferred to the
Sponsor or to an Individual or Individuals produced by the Sponsor
as provided in Section P of the Offering Plan - A Plan to Convert
to Cooperative Ownership - The Vermeer: Premises 77 Seventh
Avenue, New York, New York 10011, dated , 1979 (the "Plan") to
acquire Unsold Shares or to a nominee or designee of such Sponsor
or Individual(s); and all shares
which are Unsold Shares retain their character as such (regardless
of transfer) until an Individual purchases same for use and
occupancy by himself or a member of his family. In the event the
Sponsor is not
an individual, it shall be
required to transfer its shares to an Individual(s) not later than
three years from the date it acquired the 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 shall
require the consent of the Directors or shareholders to which
reference is made in Paragraphs 15 and 16(a)(vi) of this lease;
and a holder of Unsold Shares shall not be required to pay any
sums for
expenses of the Lessor or of its
managing agent set
forth in subparagraph
(a) (iv) of said Paragraph 16.
(c) Without
the consent of a holder of Unsold Shares, no change in the form,
terms or conditions of this proprietary lease, as permitted by
Paragraph 6, shall (1) affect the rights of the holder of Unsold
Shares allocated to the apartment to sublet the apartment or to
assign this lease, as hereinbefore provided in this Paragraph 38,
or (2) eliminate or modify any other rights, privileges or
obligations of such holder of Unsold Shares.
(d) The
provisions of Paragraph 35 of this Lease shall not be applicable
to a holder of Unsold Shares.
39. Where the
provisions of Paragraph 17(b) are deemed inapplicable, the
following provisions shall apply with respect to rights of secured
parties:
(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 mortgagee of this lease who so
requests (any such holder being hereinafter referred to as a
"Secured Party"), 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 at the Secured Party's sole expense to
obtain possession of the apartment, 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), but the
consent only of the Lessor's then managing agent which shall not
be unreasonably withheld or delayed, 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
reissuance of the aforementioned shares of the Lessor including,
without limitation, sums owed under Paragraphs 32(a) and (c) of
this lease; the individual designated 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 a
bank, savings bank or savings and loan association 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 (1) notice
of said default or event of default shall have been given to the
Lessor, (2) 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, or either of them, (3) not less
than five days' written notice of an intended transfer of the
shares and this lease shall have been given to the
Lessor and the Lessee, (4) there has been paid, on
behalf of the Lessee, all
