EXHIBIT 10.2
RIDER ANNEXED TO LEASE
DATED OCTOBER 20, 1998
BY AND BETWEEN
45-18 COURT SQUARE, LIC, AS LANDLORD
AND
COAXICOM, INC. (DBA COMMUNITY TELEPHONE/COMMUNITY NETWORK),
AS TENANT
Landlord is defined as 00-00 Xxxxx Xxxxxx, LLC, its partners, and successors in
interest.
40. Minimum Annual Rent
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A. Possession of the Demised Premises shall be deemed to have been
delivered upon delivery of keys by Landlord to Tenant at the address
earlier set forth, the premises to be broom clean and January 1, 1999
or upon substantial completion as hereinafter set forth (hereinafter
the "Possession Delivery Date"). Tenant to take occupancy and pay
rent as of December 15, 1998. Please see paragraph 92.
B. Left Blank Intentionally.
C. Tenant covenants and agrees to pay to Landlord as Minimum Annual Rent
on the first day of each month during the term hereof, the following
sums:/1/
(i) Years 1 through 3 - one hundred forty-one thousand one hundred
eighteen dollars ($141,118.00) and no cents payable in equal
monthly installments of Eleven thousand seven hundred fifty-nine
dollars and ($11,759.83) eighty-three cents per month.
D. Rent due for partial month(s) shall be prorated.
E. The above annual sum shall be paid in equal monthly installments, in
advance, on the first day of each month during said term at the office
of Owner or at such other place as Owner may designate, without offset
or deduction whatsoever.
F. Tenant shall pay the first month's rent, in the sum of $11,759.83 upon
the execution of this lease, the receipt of which is hereby
acknowledged. The payment of the first month's' rent will be applied
to the first full month following expiration of the abatement period.
/1 To the extent the tenant is not delivered the space (possession) on or-
before 2/15/98, the Landlord may grant 1 day free rent for every day
possession is not delivered (fully completed) after 12/15/98.
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41. Security Deposit
----------------
Simultaneous with entry into possession of the Demised Premises, Tenant
shall deposit with Owner the sum of $23,519.66 as security for the faithful
performance and observance by Tenant of the terms, provisions and
conditions of this Lease. It is agreed that in the event Tenant defaults
in respect of any of the terms, provisions and conditions of this Lease,
including, but not limited to, the payment of rent and additional rent,
owner may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional
rent or any other sum to which Tenant is in default or for any sum which
Owner may expend or may be required by reason of Tenant's default in
respect of any of the terms, covenants and conditions of this Lease,
including but not limited to, any damages or deficiency in the re-letting
of the premises, whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Owner. Within thirty (30) days
after receipt of written notice that Owner has made application of all or
any part of the said security deposit, Tenant shall deposit with Owner such
additional funds as are necessary to restore the security deposit to its
original amount. In the event that Tenant shall fully and faithfully
comply with all of the non-monetary terms, provisions, covenants and
conditions of this Lease, the security not required to cure any monetary
default or otherwise deducted as a result of the physical condition of the
premises shall be returned to Tenant after the date fixed as the end of the
Lease and after delivery of entire possession of the Demised Premises to
Owner. In the event of a sale of the land and building or leasing of the
building, of which the Demised Premises form a part, Owner shall have the
right to transfer the security to the vendee or lessee and Owner shall
thereupon be released by Tenant from all liability for the return of such
security, and Tenant agrees to look to the new Owner solely for the return
of said security; and it is agreed that the provisions hereof shall apply
to every transfer or assignment made of the security to a new Owner.
Tenant further covenants that, other than in connection with a valid
disposition of this Lease in compliance with the terms of Article 64
hereof, it will not assign or encumber or attempt to assign or encumber the
monies deposited herein as security and that neither Owner nor its
successor or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
Tenant shall, at all times, maintain a rent security deposit equal to two
(2) month's rent. On each base rent increase date, Owner shall invoice
Tenant for, and Tenant shall deposit, such further sums with Owner as are
necessary to satisfy this obligation.
42. Restrictions on Use of the Demised Premises
-------------------------------------------
A. Subject to the provisions of this Lease, Tenant shall use the Demised
Premises only as offices in accordance with the Certificate of
Occupancy and for no other purposes.
B. Tenant shall not use or permit the use of the Demised Premises or any
part thereof in any way that would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or for any
unlawful purpose or in any unlawful manner
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or in violation of the Certificate of Occupancy for the Demised
Premises or the Building, and Tenant shall not suffer or permit the
Demised Premises or any part thereof to be used in any manner or for
anything to be done therein or anything to be brought into or be kept
therein that, in the judgment of Owner, shall in any way threaten to
impair or adversely affect the character, reputation or appearance of
the Building, the proper and economical operation of the Building or
any systems, facilities or services used to operate or clean all or
any part of the Building or the Demised Premises, or the use of any of
the areas of the Building by Owner or any of the other Tenants or
occupants of the Building. Tenant shall not install or use any
equipment that, in the judgment of Landlord, could cause any adverse
effect on the Demised Premises, the Building and/or the comfort and
convenience of other Tenants and occupants of the Building.
43. Landlord shall construct offices in accordance with layout drawn by
_________; Tenant to provide sketch presented to the Milowitz Group on or
before 10/30/98, in accordance with the attached sketch, all finishes to
building standard and in accordance with Building Codes. Any
additions/changes required by Tenant must be agreed to in writing by both
parties and shall be Tenant's sole cost to be paid upon written agreement.
[Document illegible ]
A. Landlord shall supply and install carpet and base at Landlord's cost.
Tenant shall have option of choosing carpet from Landlord's samples.
B. Left Blank Intentionally.
C. Any work performed by Tenant or Tenant's contractors shall be
performed in a good and workmanlike manner and shall comply with all
rules and regulations of all Governmental Authorities having
jurisdiction therein.
If Tenant is providing build-out of space or makes any alterations to
the space, the following paragraphs apply:
D. Tenant, or any contractor or contractors employed by Tenant, or any
other persons who will do work or install equipment for Tenant, shall
be fully covered by Workmen's Compensation Insurance, and the
Certificate by Tenant or any such contractor or persons as aforesaid.
Tenant further covenants, at its own cost and expense, to take out and
maintain at all times during the progress of such work and until
completion thereof, public liability insurance policies covering Owner
in compliance with the limits and such other conditions as set forth
in Article 49 hereof, and certificates evidencing the policies shall
be delivered to Owner prior to the commencement of any work hereunder.
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E. Tenant's contracts with its contractors and/or other persons who will
perform work for the Tenant shall require said persons to look solely
to the Tenant for payment and will hold Owner and the Building free
from all liens and claims of all persons furnishing labor or materials
therefor.
F. Subject to the provisions of this Article, any and all machinery,
equipment and fixtures installed by Tenant, which are not replacements
of fixtures either furnished by Owner as part of Owner's work or pre-
existing in the Demised Premises at the time of the commencement of
this Lease (sometimes herein referred to as "Tenant's Property") shall
remain personally, notwithstanding the fact that it may be affixed or
attached to the realty, and shall, during the term of this Lease or
any extension thereof, belong to and be removable by Tenant, provided
that (a) Tenant shall remove said installations prior to the
expiration of such term, and shall repair any damage caused by said
removal and shall deliver the Demised Premises to Owner in the same,
or better condition, as upon the commencement of the term hereof,
reasonable wear and tear excepted. Prior to the expiration of the
term or sooner termination thereof, Tenant shall at its own cost and
expense remove, from the Demised Premises, all of Tenant's property,
except such items thereof as Tenant shall have expressly agreed in
writing with Owner are to become the property of the Owner and Tenant
shall repair any damage to the Demised Premises resulting from such
removal. Any Tenant's property remaining in the Demised Premises
after termination of this Lease (except such items as Owner and Tenant
have expressly agreed in writing are to remain and become the property
of Owner) shall be deemed to have been abandoned by Tenant or any sub-
Tenant and either may be retained by Owner as its property or may be
removed from the premises by Owner at Tenant's expense.
G. Machinery, fixtures, chattels or equipment, if any, furnished or
installed by Tenant, the cost of which is borne by Owner, shall become
the property of Owner upon payment therefor by Owner, or reimbursement
of Tenant by Owner, as the case may be, and shall not be removed by
Tenant. Anything herein contained to the contrary notwithstanding, it
is understood and agreed that all structural improvements, all
plumbing lines and equipment (other than fixtures), all electrical
wiring, conduit and equipment (other than free-standing lighting
fixtures), all heating and ventilating installations made by Tenant,
whether with or without contribution or reimbursement by Owner, shall
forthwith become part of the Building and property of Owner.
Tenant's failure to comply with any of the items and conditions of
this Article will be deemed a default pursuant to Article 17 hereof.
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44. Utilities
---------
A. Electricity Service
-------------------
(1) Landlord shall contract directly with the public utility company
for electric service for the Demised Premises. Tenant shall be
responsible for the payment of the cost of such electric service.
Such electric service may be furnished to Tenant by means of the
then existing electrical facilities serving the Premises to the
extent that the same are available, suitable and safe for such
purposes. Landlord will, prior to the commencement date, install
a sub-meter to measure Tenant's electric usage and Tenant shall
pay for such electric usage at the rate charged to Landlord by
the utility company plus a five percent administrative fee.
(2) Any additional feeders or risers to be installed to supply
Tenant's additional electrical requirements, and all other
equipment proper and necessary in connection with such feeders or
risers shall be, at Landlord's option, installed by Landlord upon
Tenant's request, at the sole cost and expense of Tenant
(including a connection fee of Three Hundred Fifty Dollars
($350.00) per kilovolt ampere, provided that, in Landlord's
reasonable judgment, such additional feeders or risers are
necessary and are permissible under applicable laws and insurance
regulations and the installation of such feeders or risers will
not cause permanent damage or injury to the Building or the
Premises or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations or materially
interfere with or disturb other tenants or occupants of the
Building. Tenant covenants that, at no time, shall the use of
electrical energy in the Premises exceed the capacity of the
existing feeders or wiring installations then serving the
Premises. Tenant shall not make or perform or permit the making
or performance of any alterations to wiring installations or
other electrical facilities in or serving the Premises or any
additions to the business machines, office equipment or other
appliances in the Premises which utilize electrical energy
without the prior consent of Landlord in each instance, which
consent shall not be unreasonably withheld or delayed.
(3) Landlord shall not be liable to Tenant in any way for any
interruption, curtailment or failure, or defect in the supply or
character of electricity furnished to the Premises by reason of
any requirement, act or omission of Landlord or of any public
utility or other company servicing the Building with electricity
or for any other reason, except if caused by Landlord's
negligence or willful misconduct.
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Landlord reserves the right to estimate electric costs and Tenant
specifically agrees to pay estimated costs per submeter which
shall be confirmed by an outside source monthly.
45. Services
--------
(1) Cleaning services by Landlord at the additional charges of $1.50 per
square foot, to building standards plus actual increases from outside
cleaning company. No medical waste shall be removed by Landlord.
(2) HVAC - Landlord shall install the HVAC system and Landlord shall
maintain and repair same during the term of the Lease at the
Landlord's sole cost and expense and on the termination of the Lease,
Tenant shall deliver the Premises with the HVAC system in working
order, free and clear of all liens and encumbrances. Tenant shall pay
for electricity for its own cooling, at its sole cost and expense,
through the HVAC system.
(3) Service elevator other than Monday through Friday, 8:00 AM through
4:00 PM, at the rate of $50.00 per hour, subject to 48-hour written
notice.
46. Security Agreements
-------------------
A. Tenant covenants and agrees that no security agreement, whether by way
of conditional xxxx of sale, chattel, mortgage or instrument of
similar import, shall be placed upon any improvement made by Tenant
which is affixed to the realty.
B. In the event that any of the machinery, fixtures, furniture and
equipment installed by Tenant in the Demised Premises are purchased or
acquired by Tenant subject to a chattel, mortgage, conditional sale
agreement or other title retention or security agreement, Tenant
undertakes and agrees (1) that no such chattel, mortgage, conditional
sales agreement or other title retention or security agreement or
Uniform Commercial Code filing statement shall be permitted to be
filed as a lien against the building and real property of which the
Demised Premises form a part, and (2) to cause to be inserted in any
of the above-described title retention, chattel, mortgage or security
agreements the following provision:
"Notwithstanding anything to the contrary herein, this chattel,
mortgage, conditional sale agreement, title retention agreement or
security agreement shall not create or be filed as a lien against the
land, building and improvements comprising the real property in which
the goods, machinery, equipment, appliances or other personal property
covered hereby are to be located or installed."
C. If any such lien or UCC financing statement, based on an agreement as
above described, is filed against the building and improvements, of
which the Demised
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Premises form a part, Tenant will, upon at least ten (10) days' prior
written notice thereof from Owner, cause such lien or notice to be
removed or discharged at Tenant's cost and expense, and Tenant's
failure ' to do so shall constitute a breach of a material provision
of this Lease.
47. Mechanic's Liens
----------------
A. Tenant shall have no power to do any act or make any contract which
may create or be the foundation for any lien upon the reversion of
Owner, the Premises herein Demised or Owner's building and
improvements, it being agreed that should Tenant cause any
alterations, changes, additional improvements or repairs to be made to
the Demised Premises, or material furnished or labor performed therein
or thereon, neither Owner for the Demise Premises shall, under any
circumstances, be liable for the payment of any expenses incurred or
for the value of any such work done or material furnished to the
Demised Premises or any part thereof, but all such alterations,
changes, additions, improvements and repairs and materials and labor
shall be at Tenant's expense, and Tenant shall be solely and wholly
responsible to contractors, laborers, and materialmen furnishing labor
and material to said premises and building, or any part thereof, for
or on behalf of Tenant.
B. Tenant shall not suffer or permit any mechanic's liens to be filed
against the fee ownership of the Demised Premises nor against Tenant's
leasehold interest in said premises, by reason of work, labor,
services or materials supplied or claimed to have been supplied to
Tenant or to any occupant of the Demised Premises. If any such
mechanic's lien shall at any time be filed against the Demised
Premises or the building and improvements thereon, Tenant shall, at
its own cost and expense, cause the same to be canceled and discharged
of record by surety bond or appropriate cash deposit within thirty
(30) days after the date of filing the same and notice thereof to
Tenant, and Tenant shall indemnify and save harmless Owner from and
against any and all costs, expenses, claims, losses or damages
resulting therefrom or by reasons thereof.
C. Tenant shall also defend on behalf of Owner, at Tenant's sole cost and
expense, any action, suit or proceedings which may be brought thereon
or for the enforcement of such liens or orders, and Tenant shall pay
any damages and satisfy and discharge any judgment entered thereon and
save harmless Owner from any claim or damage resulting therefrom.
D. If Tenant shall fail to discharge such mechanic's lien within such
period, then, in addition to any other right or remedy of Owner, Owner
may, but shall not be obligated to, discharge the same, either by
paying the amount claimed to be due or by procuring the discharge of
such lien by deposit in court or bonding, and in any such event, Owner
shall be entitled, if Owner so elects, to compel the prosecution of an
action for the foreclosure of such mechanic's lien by the lienor and
to pay the
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amount of the judgment, if any, in favor of the lienor, with interest,
costs and allowances.
E. Any amount paid by Owner for any of the aforesaid charges and all
reasonable legal and other expenses of Owner, including reasonable
counsel fees, in defending any such action in procuring the discharge
of said lien, with all necessary disbursements in connection
therewith, with interest thereon at the then legal rate of imputed
interest from the date of payment, shall be repaid within a period of
twenty (20) days after written demand therefor by Owner to Tenant, and
may be treated as Additional Rent payable with the next installment of
Annual Basic Rent.
F. Prior to the commencement of any work in the Demised Premises by any
general contractor employed by Tenant or by any sub-contractors
employed by such general contractor, or sub-contractors employed by
Tenant, Tenant shall:
(1) furnish Owner with Tenant's written statement setting forth the
name and business address of the Tenant's general contractor or
sub-contractors employed by Tenant;
(2) obtain and furnish to Owner a written list of all sub-contractors
employed or to be employed by Tenant's general contractor and
certified by the general contractor.
48. Owner's Exculpation/No Recourse
-------------------------------
If the Owner or any successor-in-interest be an individual, joint venture,
tenancy-in-common, co-partnership, unincorporated association, limited
partnership or other unincorporated group of individuals, or a corporation
(all of which are referred to below, individually, and collectively, as an
"Owner Entity"), then, anything herein to the contrary notwithstanding,
Tenant shall look solely to the interest of such Owner Entity in the
building in satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by
Owner, in the event of any default or breach by Owner with respect to any
of the terms, covenants and conditions of this Lease to be observed and/or
performed by Landlord, and no other property or assets of such Owner Entity
or any member thereof, shall be subject to levy, execution or, other
enforcement procedure for the satisfaction of Tenant's remedies.
49. Parties' Certificates
---------------------
The Parties each shall, without charge at any time, and from time to time,
within ten (10) days after request by the other, certify to any mortgagee,
proposed assignee of any mortgagee, or proposed purchaser or any other
person, firm or corporation specified by the requesting party:
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a) That this Lease is unmodified and in full force and effect (or, if
there has been modification, that the same is in full force and effect
as modified and stating the modifications);
b) Whether or not there are then existing any set-offs or defenses
against the enforcement of any of the agreements, terms, covenants or
conditions hereof upon the part of the Tenant to be performed or
complied with (and, if so, specifying the same); and
c) The dates, if any, to which the rental and other charges hereunder
have been paid in advance.
50. Liability Insurance and Indemnification
---------------------------------------
A. During the term hereof, Tenant shall, at its own cost and expense:
(1) Obtain, maintain and keep in force, for the benefit of Owner,
Managing Agent and Tenant, comprehensive general liability
insurance covering the risks in the limits set forth below, on or
about the Demised Premises (which shall include Tenant's signs,
if any):
a) Bodily Injury:
Each person $1,000,000.00
Each Occurrence $1,000,000.00
b) Property Damage:
Each Occurrence $ 500,000.00
c) Completed operations and contractual liability with the same
bodily injury and property damage limits stated in (a) and
(b) above.
d) Fire and extended coverage for Tenant's fixtures,
alterations and inventory in an amount adequate to cover the
cost of replacement, but not less than $100,000.00.
B. Owner and its managing agent, Et-Al Management Corp., shall be named
as an additional insured in said policies, as their interests may
appear, and shall be protected against all liability occasioned by an
occurrence insured against. All said policies of insurance shall be
issued by insurance companies reasonably satisfactory to Owner and
which are authorized to do business in the State of New York. Tenant
shall deliver to Owner the policies of insurance, together with
evidence of the payment of premiums thereon within ten (10) days of
taking occupancy of the
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Demised Premises and furnish to Owner at least twenty (20) days prior
to the expiration of any such policies, a new policy, with evidence of
the payment or premiums thereon. The parties hereto agree that the
payment of said premiums may be financed, as long as same are made and
kept current. Said policies shall also provide that the insurer will
give Owner at least thirty (30) days' prior written notice of
cancellation of said policy.
C. Notwithstanding the limits of insurance specified in this Article,
Tenant agrees to indemnify Owner, its agents, servants and employees
against all damage, loss or liability resulting from any of the risks
referred to in this Article. Such indemnification shall operate
whether or not Tenant has placed and maintained the insurance
specified in this Article and whether or not such proceeds from such
insurance actually are collectible from one or more of the insurance
companies; provided, however, that Tenant shall be relieved of its
obligations of indemnity herein Pro Tanto of the amount actually
recovered from one or more of the insurance companies by reason of
injury or damage to, or loss sustained on the Premises.
D. Tenant shall pay all premiums and charges for all of said policies,
and if Tenant shall fail to make any payment when due or carry any
such policy, Owner may, but shall not be obligated to, make such
payment or carry such policy, and the amount paid by Owner, with
interest thereon, shall be repaid to Owner by Tenant on demand, and
all such amounts so repayable, together with such interest, shall be
considered as Additional Rent payable hereunder for the collection of
which Owner shall have all of the remedies herein or by law provided
for the collection of rent. Payment by Owner of any such premium or
the carrying by Owner of any such policy, shall not be deemed to waive
or release the default of Tenant with respect thereto.
Tenant must provide evidence of coverages prior to taking occupancy of
leased space.
E. Tenant acknowledges that Owner will not carry insurance of any kind on
Tenant's furniture, furnishings, finishes, or wall coverings and/or
fixtures, equipment, and improvements, and agrees that Owner shall not
be obligated to repair any damage thereto or to replace the same.
F. Landlord will maintain same type of liability insurance for all public
spaces in building and will indemnify and defend Tenant for events
which occur in the buildings common space due to Landlord/Owner's
negligence.
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51. Tenant's Conduct of Business
----------------------------
Tenant covenants and agrees:
A. To do all things necessary to keep the Demised Premises clean,
orderly and neat at all times, and to prevent odors, all at
Tenant's sole cost and expense, and to conduct its business in a
proper manner.
B. That Tenant shall conduct its operations in the Demised Premises
in an orderly and proper manner so as not to annoy, disturb or be
offensive to others.
C. That Tenant shall not, at any time, discharge into the plumbing,
sewage or drainage system, any waste materials which will result
in the creation of a blockage in said system or otherwise
adversely affect the proper and clean maintenance and operation
thereof.
D. That Tenant, at its sole cost and expense, shall provide regular
exterminating and pest control services using Landlord's
exterminator in the Demised Premises at regular intervals, in
order to prevent the occurrence of any vermin in or about the
Demised Premises.
52. Adjustment of Rent for Increases in Real Estate Tax
---------------------------------------------------
See Paragraph 83.
53. Assignment and Sub-letting Provisions
-------------------------------------
Tenant may not assign this Lease under any circumstances without the prior
written consent of Owner, which consent may be withheld for any reason or
for no reason whatsoever.
54. Rent Arrears, Etc. Supplementing Article 25 of the printed form of lease:
------------------
A. Owner, at Owner's option, shall have the right, when Tenant is in
default in the payment of Fixed Rent or Additional Rent, to
demand payment by certified, bank or teller's check, or by postal
money order.
B. In the event that any payment under this Lease shall be made in
the form of a check from any person, firm or corporation other
than the person, firm or corporation named in this Lease, the
acceptance of same by Owner shall not, under any circumstances,
be deemed recognition of a sub-letting or any assignment of this
Lease, regardless of the number of times that such payment shall
be made by such other person, firm or corporation.
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C. Late Charge. If Tenant shall fail to pay all or any part of any
installment of Fixed Rent or Additional Rent for more than ten
(10) days after the same shall have become due and payable
(including the dishonor of a payment made by check, even if such
check was tendered in a timely manner), Tenant shall pay as
Additional Rent hereunder to Owner a late charge of six (6) cents
for each dollar of the amount of such Fixed Rent or Additional
Rent which shall not have been paid to Owner within said ten (10)
day period, in addition to any other right or remedy available
due to such late payment.
D. In the event that any check paid by or for the benefit of Tenant
to Owner is dishonored, Tenant shall pay Owner as Additional Rent
hereunder a charge of One Hundred Dollars ($100.00) in addition
to any other late charge or right or remedy available due to such
dishonored payment.
55. Additional Rent
---------------
A. All payments, other than Minimum Annual Rent required to be made by
Tenant pursuant to this Lease (including, but not limited to,
escalation charges, and any and all damages, interest, costs, fees and
expenses caused by Tenant's default) shall be deemed additional rent
and, in the event of any non-payment thereof, Owner shall have all
rights and remedies provided for herein and by law for non-payment of
Minimum Annual Rent in addition to whatever other remedies may be
available to Owner.
B. Unless expressly provided otherwise in this Lease, the amount shown as
due to Owner (or Owner's agent) in all bills, invoices and statements
to Tenant shall be due and payable by Tenant upon receipt without
further demand. Any delay or failure of Owner or its agent to prepare
and deliver any xxxx, statement or invoice shall not constitute a
waiver of the right to collect any payment which may have become due
during the term of this Lease, including without limitation,
retroactive payments for any and all amounts unbilled.
C. All payments of Minimum Annual Rent and additional rent pursuant to
this Lease shall be made by Tenant with checks drawn upon a New York
City bank. If Owner receives from Tenant any payment less than the
full amount of the Minimum Annual Rent and additional rent then due
and owing, Tenant hereby waives its right, if any, to designate the
items to which such payment shall be applied and agrees that Owner, in
its sole discretion, may apply such payment in whole or in part to any
Minimum Annual Rent, any additional rent or to any combination thereof
then due and payable hereunder.
D. The losing party in any action or proceeding between Owner and Tenant
shall pay the reasonable attorneys' fees, costs and disbursements of
the prevailing party for such action or proceeding upon the assignment
thereof by the Court or on demand.
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If a default of Tenant causes Owner to prosecute or defend an action
or proceeding with a third party, Tenant shall pay the reasonable
attorneys' fees, costs and disbursements of Owner for such action or
proceeding on demand. If Owner suffers, pays or incurs any damages,
losses, fees or expenses (including without limitation, reasonable
attorneys' fees and disbursements) due to a default, act, omission or
request of Tenant, Tenant shall pay the total amount thereof to Owner
on demand.
E. If all rent is not paid in full and actually received by Owner within
fifteen (15) days after it is due and payable hereunder, Tenant shall
pay Owner a late fee of 2% per month as additional rent. However, if
the collection of such late fee at the rate specified herein would be
usurious or otherwise unenforceable, interest on late payments shall
accrue at the highest enforceable rate.
F. References in this Lease to "rent," "Rent," "rents," "Rents,"
"rental," "Rental," "rentals" and "Rentals" shall mean and include
Minimum Annual Rent and additional rent. The Minimum Annual Rent is
the minimum rental due and payable without prior demand, offset or
deduction. No decrease in any additional rent for any period shall
yield an offset or deduction in any other rental or for any other
period. References in this Lease to Tenant being "in default" and/or
Tenant's "breach" or "default" shall mean and include each and every
default, breach, misfeasance, nonfeasance, non-payment, or any other
failure of Tenant to perform any of its obligations hereunder. If
Owner gives notice of default and Tenant seeks declaratory relief and
Tenant's time to cure is extended pending the outcome of such
declaratory judgment action, Tenant shall be deemed to be "in default"
under this Lease during the pendency of such action for the purposes
of those rights that are exercisable by Tenant only if it is not "in
default." All of Tenant's obligations to pay rent, to indemnify Owner
and to obtain insurance shall survive the expiration of the term or
sooner termination of this Lease.
G. Owner's managing agent, Et-Al Management Corp., may give notices,
demands, invoices, statements and/or bills to Tenant in Owner's
behalf; any such notice, statement, invoice, demand or xxxx shall be
deemed to have been given by Owner.
H. The provisions of this Article shall supplement (not limit) other
provisions of this Lease pertaining to the same matters as this
Article and related matters.
56. Owner's Right of Entry
----------------------
A. Tenant shall permit Owner to erect, use, maintain and repair pipes,
cables, conduits, plumbing, vents and wiring in, to and through the
Demised Premises, as and to the extent that Owner may now or hereafter
deem to be necessary or appropriate for the proper operation and
maintenance of the building of which the Demised Premises are a part.
All such work shall be done, so far as practicable, in such manner as
to avoid interference with Tenant's use of the Demised Premises, and
as expeditiously as
13
possible. The liability of Owner, if any, under this Article shall be
limited to the prompt repair, at the sole cost and expense of Owner,
of any damage caused to the Demised Premises by the Owner in the
course of doing work under this paragraph.
B. Upon providing forty-eight (48) hours advance written notice, Owner,
or its agents or assignees, shall have the right to enter the Demised
Premises during business hours for the purpose of making such repairs
or alterations as Owner shall be required or shall have the right to
make by the provision of this Lease. Owner shall attempt to do all
such work at a time, and in a manner, that will not unreasonably
inconvenience Tenant, significantly diminish Tenant's floor area or
significantly disrupt Tenant's architectural layout. Owner shall be
allowed to take all material into and upon the Demised Premises that
may be required for repairs or alterations, without constituting an
eviction of Tenant, in whole or in part, so long as any repair work by
Owner is diligently prosecuted to completion. Owner shall also have
the right, without prior written notice, to enter the Demised Premises
at such other times as such entry may be required by circumstances of
emergency affecting the Demised Premises or the building containing
the same. In addition, Owner, or its agents or assignees, shall have
the right to enter the Demised Premises upon providing twenty-four
(24) hours' prior written notice during business hours for the purpose
of inspecting the general condition and state of repair of the
Premises and the showing of the Premises to any prospective purchaser
or mortgagee, such entry and inspection to be conducted in a manner
calculated to not unreasonably interfere with the operation of
Tenant's business or its customers.
C. The rights granted to Owner by the terms of this Article shall be
deemed supplementary to the provisions set forth in Article 13 of the
printed portion of this Lease.
57. Suspension of Services
----------------------
Anything in this Lease to the contrary notwithstanding, Owner reserves the
right to suspend the service of any utilities, when necessary by reason of
accident or of repairs, alterations or improvements necessary to be made in
the Demised Premises or the building of which it is a part, until such
repairs, alterations or improvements shall have been completed, and Owner
shall have no responsibility or liability for such suspension of services,
provided Owner proceeds with diligence and continuity to complete such
repairs, alterations or improvements and uses its best efforts to restore
such services as soon as practicable. The foregoing shall not be deemed to
impose upon Owner any obligations for the furnishing of any service,
maintenance or repair other than is specifically set forth in this Lease.
Owner will provide 72 hours advance notice of any planned service
suspension which is for regular maintenance purposes. No notice shall be
required for emergency suspension of service resulting from an accident or
other unanticipated event.
14
58. Condemnation
------------
A. If the whole of the Demised Premises shall be taken under the power of
eminent domain of any public or private authority, then this Lease and
the term thereof shall cease and terminate, as of the date of such
taking and any unearned rent or other charges, if any, paid in
advance, shall be refunded to Tenant.
B. In the event that only a portion of the Demised Premises shall be
taken under the power of eminent domain by any public or private
authority, then this Lease and the term thereof shall continue in full
force and effect, at option of either the Owner or the Tenant,
provided, however, that Owner shall, at its expense forthwith restore
what may remain of the Demised Premises to substantially the same
condition as prior to the condemnation. There shall be a pro rata
abatement of basic rent hereunder to the extent that the amount of
floor space so taken compares to the amount of floor space prior to
such condemnation, to compensate Tenant for its loss of use of such
portion of the Demised Premises. The minimum rent reserved herein,
and any other charges payable to Tenant hereunder, shall be suspended
(provided Tenant is not then using the Demised Premises) for the
period from the date of the taking until the remainder of the Demised
Premises shall have been restored as aforesaid.
C. Tenant shall not be entitled to any award for the loss of or loss in
value of the leasehold, but only to an award for loss of or damage to
its fixtures and/or equipment and to moving expenses, all to the
extent allowed and solely in the event that such allowance does not,
in any way, diminish the award to Owner. The respective damages to
which Owner and Tenant are entitled by reason of any such taking shall
be fixed and paid, respectively, to Owner and Tenant, as their
interests appear, and in no event shall there be a merger of interest.
D. Within fifteen (15) days after Owner receives written notice of any
such taking or intention to take under power of eminent domain, Owner
shall forward a copy thereof to Tenant.
59. Damage or Destruction
---------------------
A. If the Demised Premises shall be partially damaged by fire or other
casualty, the damaged portions of the Demised Premises (but not
Tenant's trade fixtures or personal property) shall be repaired by and
at the expense of Owner (unless such fire or casualty resulted, in
whole or in part, from any act or omission, whether negligent or
otherwise, of Tenant or his agents, servants, contractors, employees,
invitees, or assigns, in which case such repairs shall be at the cost
and expense of Tenant), and the rent until such repairs shall be made
shall be apportioned according to the part of the Demised Premises
which is usable by Tenant. If Tenant shall have paid rent
15
in advance, Owner shall repay to Tenant an amount equal to that
portion of rent so paid in advance, payment of which is abated.
B. If the Demised Premises are totally damaged or are rendered wholly
untenantable by fire or other casualty, Owner shall, within sixty (60)
days after such fire or other casualty, give Tenant written notice of
Owner's election whether:
1) To terminate this Lease and thereupon the term of this Lease
shall expire by lapse of time upon the third (3rd) day after such
notice is given, and Tenant shall vacate the Demised Premises and
surrender the same to Owner. If Tenant shall not be in default
under this Lease, or if any monetary default existing at the time
of the giving of such a notice is cured in full within three (3)
days after delivery of said notice, then upon the termination of
this Lease under the conditions provided for in the sentence
immediately preceding, Tenant's liability for rent accruing
subsequent to the fire or casualty shall cease and be apportioned
as of the day following such fire or casualty, or
2) To restore or rebuild the Demised Premises in character, layout,
area and equipment (but not Tenant's trade fixtures or personal
property) substantially equal to the premises damaged or
destroyed immediately prior to such damage or destruction, and it
is agreed that in such event, this Lease shall continue in full
force and effect, but the rent, the additional rent, and all
other payments and obligations of Tenant shall xxxxx as of the
date of such fire or other casualty, until the Demised Premises
shall have been fully and completely restored or rebuilt by Owner
and possession thereof shall have been delivered to Tenant.
Should Owner elect to send Tenant written notice under
subparagraph (1) of this Article 56B, and thereafter, within one
(1) year of the giving of such notice, act nevertheless to
restore or rebuild the Demised Premises in character, layout,
area and equipment (but not Tenant's trade fixtures or personal
property) substantially equal to the premises damaged or
destroyed immediately prior to such damage or destruction, then
and in such event, Owner agrees to give Tenant a thirty (30) day
unilateral option to be exercised by Tenant in the method and
manner otherwise set forth in this Lease, to resume occupancy for
the remaining balance of the original lease term under all of the
other terms and conditions set forth in this Lease.
C. Owner shall not be liable for reasonable delay under the foregoing
subparagraphs A or B if such delay arises by reason of adjustment of
insurance on the part of Owner and/or Tenant or the reasonable delay
on account of any cause beyond the control of Owner or contractors
employed by Owner, including, but not limited to strikes, labor
disputes and shortages of material.
16
D. Tenant hereby expressly waives the provisions of Section 227 of the
Real Property Law and of any law now in force or hereafter enacted
which, in substance, provides for termination of a lease of real
property by reason of destruction or untenantability of the Premises
demised thereunder caused by fire or other casualty and agrees that
the provisions of this Article 57 shall govern and control in lieu of
any such provisions of law.
60. Signs
-----
A. Tenant shall not, without Owner's prior written consent, place or
install any sign on the exterior of the Demised Premises, or the
building of which it is a part, or on the inner or outer faces of the
windows or doors of the Demised Premises. Tenant shall be permitted
to install and maintain, at its own cost and expense, an exterior
sign, provided the same receives the prior approval of Owner as to
dimensions, shape, design, size, color, wording, material of
composition and location. Tenant agrees that any exterior sign
approved by Owner shall not be installed until all approvals and
permits are first obtained by Tenant from governmental agencies having
jurisdiction thereover and that all fees payable in connection with
such installation, maintenance and permits shall be paid by Tenant.
B. Tenant shall not place in the window's or in any display or other area
visible to public view from the outside of the Demised Premises any
flashing, blinking or animated sign or one which otherwise has
variations in the intensity of illumination without first obtaining
Owner's prior written approval.
C. Tenant shall not, after having obtained the approval of Owner, change
or alter any sign in any respect whatsoever, including but not limited
to size, material of composition or location, without first obtaining
the prior written approval of Owner, except that Tenant may change the
phraseology in a sign previously approved by Owner without additional
approval.
D. In the event that Owner shall deem it necessary to remove any sign of
Tenant in order to make any repairs, alterations or improvements in,
to or upon the Demised Premises, or the building of which it is a
part, Owner shall have the right to do so, provided the same be
removed and replaced at Owner's expense, promptly upon completion of
such repair, alteration or improvements.
61. Replacement of Plate Glass
--------------------------
Tenant shall, at its own cost and expense, replace any and all plate or
other glass damaged or broken from any cause whatsoever in and about the
Demised Premises. Tenant shall, at its own cost and expense, either insure
and keep insured all such glass in stock companies authorized to do
business in the State of New York, naming the Owner as a party insured
thereunder, or may act as a self-insurer for plate glass.
17
62. Holdover by Tenant
------------------
Tenant will have no right to remain in possession of all or any part of the
Demised Premises after the expiration of the term. If Tenant remains in
possession of all or any part of the Demised Premises after the end of said
term, with the express or implied consent of Owner: (a) such tenancy will
be deemed to be a periodic tenancy from month-to-month only; (b) such
tenancy will not constitute a renewal or extension of this Lease for any
further term; and (c) such tenancy may be terminated by Owner upon the
earlier of thirty (30) days' prior written notice or the earliest date
permitted by law. In such event, monthly rent (the reasonable value of use
and occupancy) will be increased to an amount equal to one-half (1/2) of
the sum of the Minimum Annual Rent plus all additional rentals payable
during the last year of the term, and any other sums due for additional
rent under this Lease will be payable in the amount and at the times
specified in this Lease. Such month-to-month tenancy will be subject to
every other term, condition and covenant contained in this Lease. Neither
the billing nor the collection of use and occupancy in the above amount
shall be deemed a waiver or any right of Owner to collect damages for
Tenant's failure to vacate the Demised Premises after the expiration or
sooner termination of this Lease. The provisions of this Article shall
survive the expiration or sooner termination of this Lease. In the event a
renewal lease is executed by all parties within ninety (90) days of the
expiration date and all rent has been paid timely, the rent will be
adjusted retroactively to the renewal rate.
63. Broker
------
Tenant and Owner covenant, warrant and represent to each other that neither
has had any dealings with any real estate broker, agent or finder in
consummating the Lease other than Aegis Realty, Equis, and Xxxxxx &
Zuckerbrot and that no conversation or prior negotiations were had with any
individual or entity other than Aegis Realty, Equis, and Xxxxxx &
Zuckerbrot concerning the renting of the Demised Premises. In reliance
upon such representation, Owner agrees to pay any commission due to Aegis
Realty, Equis, Xxxxxx & Zuckerbrot. The parties agree to hold each other
harmless from and against any claims for brokerage commissions arising out
of any conversation of negotiations had by the Tenant with any other
broker./2/
__________________
/2/ Based on conversation w/ Xxxx Xxxxxxxx, he has agreed to split the Broker
- Commission equally amongst the above names brokers. Additionally Xx.
Xxxxxxxx agreed to give [ document illegible ]
---------------------------------------------------------------------------
18
64. Subordination and Attornment
----------------------------
A. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all mortgages and building
loan agreements, including without limitation, mortgages and building
loan agreements and leasehold mortgages which may now or hereafter
affect the Land and/or the Building and/or any of such Leases, whether
or not such mortgages shall also cover other lands and/or buildings,
to each and every advance made or hereafter to be made under such
mortgages and/or building loan agreements, and to all renewals,
modifications, replacements, assignments, and extensions of such
Leases, building loan agreements, mortgages and spreaders and
consolidations of such mortgages. This Article shall be self-
operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall
promptly, at its sole cost and expense, execute and deliver any
instrument in recordable form that Owner, the lessor of any such Lease
or the holder of any such mortgage or any of their respective assigns
or successors in interest may reasonably request evidence such
subordination and the Tenant hereby constitutes and appoints Owner the
attorney-in-fact for Tenant to execute any such instrument for and on
behalf of Tenant in the event Tenant fails to execute such instrument
within ten (10) days following delivery of written request therefor.
The Leases to which this Lease is, at the time referred to, subject
and subordinate pursuant to this Article, are hereinafter sometimes
called "Superior Leases" and the mortgages to which this Lease is, at
the time referred to, subject and subordinate, are hereinafter called
"Superior Mortgages" and the Lessor of a Superior Lease or its
successor in interest at the time referred to is sometimes hereinafter
called a "Lessor" and the holder of a Superior Mortgage or its
successor in interest at the time referred to is sometimes hereinafter
called a "Holder." This provision supplements Article 7 of this
Lease.
B. In the event of any act or omission of Owner which would give Tenant
the right, immediately or after lapse of a period of time, to cancel
or terminate this lease, or to claim a partial or total eviction,
Tenant shall not exercise such right (1) until it has given written
notice of such act or omission to the holder of each Superior Mortgage
of record as of the date of the execution of this Lease, or of which
Owner has given Tenant written notice, and (2) unless such act or
omission shall be one which is not capable of being remedied by Owner
or such Holder within a reasonable period of time, until reasonable
period of time for remedying such act or omission shall have elapsed
following the giving of such notice and following the time when such
Holder shall have become entitled under such Superior Mortgage to
remedy the same (which reasonable period shall in no event be less
than the period to which Owner would be entitled under this Lease or
otherwise, after similar notice, to effect such remedy), provided such
Holder shall, with due diligence give Tenant written notice of its
intention to, and commence and continue to, remedy such act or
omission. As of the date hereof, the parties entitled to receive
notice under this Paragraph 63C are as follows:
19
00-00 Xxxxx Xxxxxx LLC and 45-18 Equity, at
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
In the event of any changes, notification will be given to tenant.
C. If the fee owner of the building which includes the Demised Premises,
or the Holder of a Superior Mortgage, shall succeed to the rights of
Owner under this Lease, whether through possession or foreclosure
action or through termination for any reason of the leasehold estate
covering the building which includes the Demised Premises or by
delivery of a new lease or deed, then, at the request of such party so
succeeding to Owner's rights (herein sometimes called "Successor
Owner") and upon such Successor Owner's written agreement to accept
Tenant's attornment, Tenant shall attorn to and recognize such
Successor Owner as Tenant's Landlord under this Lease. The foregoing
provisions shall inure to the benefit of any such Successor Owner, and
shall be self-operative upon any such demand, without requiring any
further instrument to give effect to said provisions. Tenant,
however, upon demand of any such Successor Owner, agrees to execute,
from time to time, an instrument in confirmation of such attornment
which is satisfactory to such Successor Landlord. Upon such
attornment, this Lease shall continue in full force and effect for the
remainder of the term originally demised under this Lease, as or as if
it were a direct lease between the Successor Owner and Tenant upon all
of the terms, covenants, conditions, agreements and provisions, as are
set forth in this Lease, except that the Successor Owner shall not:
1) be subject to any offset not expressly provided for in this
Lease.
2) be bound by any previous modification of this Lease not expressly
provided for in this Lease, or by any previous pre-payment of
more than one month's rent, unless such modification or
prepayment shall have been expressly approved in writing by the
Successor Owner through or by reason of which the Successor
Landlord shall have succeeded to the rights of Owner under this
lease.
D. Owner covenants and represents that it knows of no outstanding
lawsuits, claims or judgments affecting or limiting Owner's right or
authority to perform under this lease.
65. Left Blank Intentionally
------------------------
20
66. Modification - Financing
------------------------
If, in connection with Owner's obtaining financing for the Real Property or
any portion thereof, a bank, insurance company or other lending institution
shall request reasonable modifications of this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or defer its
consent thereto, provided that such modifications do not increase the
obligations of Tenant hereunder or adversely affect the leasehold interest
hereby created or otherwise and adversely affect Tenant's rights hereunder.
67. Conditional Limitation
----------------------
In the event that in any twelve (12) month period (A) a non-monetary
default of the kind set forth in Article 17(l) shall have occurred or (B)
Tenant shall have defaulted in the prompt payment of Minimum Annual Rent or
Additional Rent, or any part of either, and Owner shall have commenced a
summary proceeding to dispossess Tenant in each such instance, then,
notwithstanding that such defaults may have been cured at any time after
the commencement of such summary proceeding, any two (2) further defaults
by Tenant within the ensuing twenty-four (24) month period shall be deemed
to be a violation of a substantial obligation of this Lease by Tenant and
Owner may serve a written three (3) days' notice of cancellation of this
Lease upon Tenant and, upon the expiration of said three (3) days, this
Lease and the term shall end and expire as fully and completely as if the
expiration of such three (3) day period were the day herein definitely
fixed for the end and expiration of this Lease and the term and Tenant
shall then quit and surrender the Demised Premises to Owner, but Tenant
shall remain liable as elsewhere provided in this Lease. Tenant's payment
of Minimum Annual Rent and/or Additional Rent shall be considered "prompt"
if received by Owner within ten (10) days of the date that same is due.
68. Bankruptcy
----------
Without limiting any of the provisions of Article 16, 17 or 18 hereof, if
pursuant to the Bankruptcy Code of 1978 and the Bankruptcy Code of 1986, as
the same may be amended, Tenant is permitted to assign this Lease in
disregard of the restrictions contained in Article 11 or any other
provision of this Lease. Tenant agrees that adequate assurance of future
performance by the assignee permitted under such Code shall mean deposit of
cash security with Owner in an amount equal to the sum of one year's
Minimum Base Rent then reserved hereunder plus an amount equal to all
additional rent payable under the provisions of this Lease for the calendar
year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Owner, without interest, for the
balance of the term of this Lease as security for the full and faithful
performance of all of the obligations under this Lease on the part of
Tenant yet to be performed. If Tenant receives or is to receive any
valuable consideration for such an assignment of this Lease, such
consideration, after deducting therefrom (A) the brokerage commissions, if
any, and other expenses reasonably incurred by Tenant for such assignment
and (B) any portion of such consideration reasonably designated by the
assignee as paid for the purchase of Tenant's
21
property in the demised premises, shall be and become the sole and
exclusive property of Owner and shall be paid over to Owner directly by
such assignee. In addition, adequate assurance shall mean that any such
assignee of this Lease shall have a net worth, exclusive of good will,
equal to at least fifteen (15) times the aggregate of the Minimum Annual
Rent reserved hereunder plus all additional rent for the preceding calendar
year as aforesaid.
69. Hazardous Materials
-------------------
A. For purposes of this Lease, "hazardous materials" means any
explosives, radioactive materials, hazardous wastes, or hazardous
substances, including without limitation, substances defined as
"hazardous substances" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. #9601-
9657; the Hazardous Materials Transportation Act of 1975, 49 U.S.C.
#1801-1812; the Resource Conservation and Recovery Act of 1976, 42
U.S.C. #6901-6987; or any other similar laws (collectively, "hazardous
materials laws").
B. Tenant will not cause or permit the storage, use, generation, or
disposition of any hazardous materials in, on, or about the demised
premises or the Building by Tenant, its agents, employees or
contractors. Tenant will not permit the Demised Premises to be used
or operated in a manner that may cause the Demised Premises or the
Building to be contaminated by any hazardous materials in violation of
any hazardous materials laws. Tenant will immediately advise Owner in
writing of (1) any and all enforcement, cleanup, remedial, removal, or
other governmental or regulatory actions instituted, completed or
threatened pursuant to any hazardous materials laws relating to any
hazardous materials affecting the Demised Premises; and (2) all claims
made or threatened by any third party against Tenant, Owner, or the
Demised Premises relating to damage, contribution, cost recovery,
compensation, loss, or injury resulting from any hazardous materials
on or about the Demised Premises. Without Owner's prior written
consent, Tenant will not take any remedial action or enter into any
agreements or settlements in response to the presence of any hazardous
materials in, on or about the Demised Premises.
C. Tenant will be solely responsible for and will defend, indemnify and
hold Owner, its agents and employees, harmless from and against all
claims, costs and liabilities, including attorneys' fees and costs,
arising out of or in connection with Tenant's breach of its
obligations in this Article, including, but not limited to, the
removal, cleanup and restoration work and materials necessary to
return the Demised Premises and any other property of whatever nature
located on the Building to their condition existing prior to the
appearance of Tenant's hazardous materials on the Demised Premises.
Tenant's obligations under this Article will survive the expiration or
other termination of this Lease.
22
70. Left Blank Intentionally
------------------------
71. Occupancy Prior to Commencement Date
------------------------------------
In the event that Owner permits Tenant to occupy the Demised Premises prior
to the commencement date, such occupancy shall be upon all of the terms and
conditions contained in this Lease except that Tenant shall pay a pro-rated
rent for the period to the commencement date and shall be responsible for
all other charges provided for under the Lease.
72. Waste Removal, Etc.
-------------------
Tenant shall, at its own cost and expense, promptly dispose of all garbage,
ashes and waste arising from the conduct of its business in the Demised
Premises at such times and in such manner so as to avoid any obnoxious or
offensive smells or odors therefrom or otherwise materially interfering
with the comfort and quiet enjoyment of the other occupants of the
building. Tenant further covenants and agrees, at the Tenant's own cost
and expense, to keep the drain waste and connections with mains free from
obstruction to the reasonable satisfaction of the Landlord, its agents and
all authorities having jurisdiction thereof. Tenant further covenants and
agrees that Tenant will, at Tenant's own cost and expense, keep and
maintain the interior in good order and repair. (See paragraph 45(i) of
Rider).
73. Irrespective of the place of execution or performance, this agreement shall
be governed by and construed in accordance with the laws of the State of
New York. This agreement shall be construed without regard to any
presumption or other rules requiring construction against the party causing
this agreement to be drafted. If any words or phrases in this agreement
shall have been stricken out or otherwise eliminated, whether or not any
other words or phrases have been added, this agreement shall be construed
as if the words or phrases so stricken out or otherwise eliminated were
never included in this agreement and no implication or inference shall be
drawn from the fact that said words or phrases were so stricken out or
otherwise eliminated. All terms and words used in this agreement,
regardless of the number or gender in which they are used, shall be deemed
to include any other number and any other gender, as the context may
require.
74. Left Blank Intentionally
------------------------
75. Notice of Owner's Default
-------------------------
In the event of any alleged default in the obligation of Owner under this
Lease, Tenant will deliver to Owner written notice listing the reasons for
Owner's default and Owner will have thirty (30) days following receipt of
such notice to cure such alleged default or, in the event that the alleged
default cannot reasonably be cured within a thirty (30) day period, to
commence action and proceed diligently to cure such alleged default. A
copy of such notice to Owner will be sent to any holder of a mortgage or
other superior lien on the Building or
23
this Lease of which Tenant has been notified in writing, and any such
holder will also have the same time periods to cure such alleged default.
76. Modifications Requested by Mortgagee
------------------------------------
If any actual or prospective holder of a fee or mortgage interest in the
Building, the improvements thereon, the land thereunder or any leasehold
interest in either, requires the modification of this Lease in such manner
as does not materially lessen Tenant's rights or increase its obligations
hereunder, Tenant shall not withhold or delay its consent to such
modification and shall execute and deliver such confirming documents
therefor as such holder requires.
77. Conflict Between Rider and Printed Lease
----------------------------------------
If and to the extent that any of the provisions of any Rider to this Lease
conflict or are otherwise inconsistent with any of the printed provisions
of this Lease, whether or not such inconsistency is expressly noted in the
Rider, the provisions of the Rider shall prevail. The description of a
particular right or remedy of Owner shall not be deemed exclusive or
otherwise limit, waive or impair Owner's resort to any or all other rights
and remedies available. The terms "Owner" and "Landlord" whenever used in
this Lease shall have the same meaning. The meaning and effect of this
Lease shall not be determined subject to any presumption against Owner as
drafter. The doctrine of "ejusdem generis" shall not be applied to limit a
general description to the same class or category of things or matters
contained in the list (or specific description) which the general
description follows or otherwise relates to. If a word or phrase contained
in a prior draft of this Lease was deleted intentionally, the meaning and
effect of this Lease shall be determined as if the language stricken had
not been included in any prior draft.
78. Rider Governs
-------------
If any provision contained in this Rider is inconsistent or in conflict
with any printed provision of this Lease, the provision contained in this
Rider shall supersede said printed provision and shall be paramount and
superior.
79. Partial Invalidity/Joint Liability
----------------------------------
If any provision of this Lease or the application thereof to any person or
circumstance shall, to any extent be held void, unenforceable or invalid,
then the remainder of this Lease or the application of such provisions to
persons or circumstances other than those to which it is held void,
unenforceable or invalid shall be valid and enforced to the fullest extent
permitted by law. If there shall be more than one Tenant, they shall all
be bound, jointly and severally, by the terms, covenants and conditions of
this Lease.
24
80. Indemnity: Supplementing Article 8 of the printed form of this lease.
---------
A. Tenant agrees to indemnify and save harmless Owner from and against
(a) all claims of whatever nature against Owner arising from any
negligent or improper act or omission of Tenant, its contractors,
licensees, agents, servants, employees, invitees or visitors, (b) all
claims against Owner arising from any accident, injury or damage
whatsoever caused to any person or to the property of any person and
occurring during the Term in or about the Demised Premises, and (c)
all claims against Owner arising from any accident, injury or damages
which result or are claimed to have resulted from an act or omission
of Tenant or Tenant's contractors, agents, servants, employees,
invitees or visitors. This indemnity shall not apply to the extent
that any of the claims described above are caused by the negligent act
or omission of Landlord, its contractors, agents, servants or
employees. This indemnity and hold harmless agreement shall include
indemnity from and against any and all liabilities, fines, suits,
demands, costs and expenses (including without limitation, reasonable
attorneys' fees) of any kind or nature incurred in or in conjunction
with any such claim or proceeding brought thereon, and the defense
thereof.
B. Tenant's indemnity set forth in this Article 80 shall extend and apply
to each Superior Lessor and Superior Mortgagee.
81. Requirements of Law
-------------------
Supplementing Article 6 of the printed form of Lease, Tenant's obligation
to comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions
and boards relating to Tenant's manner of use of the Demised Premises shall
include, but shall not be limited to, all requirements relating to
environmental matters by reason of Tenant's manner of use of the Demised
Premises (whether or not such requirement would otherwise be the
responsibility of Owner under said laws, orders or regulations) including,
but not limited to, the storage, treatment, handling or transportation of
hazardous waste.
82. Restrictions on Tenant's Use
----------------------------
Under no circumstances may the Demised Premises or any portion thereof be
used for residential purposes. Tenant understands that any such use shall
be a material default under the Lease and, notwithstanding anything herein
to the contrary, shall entitle Landlord to immediately send Tenant a notice
of cancellation of this Lease. Tenant further understands and acknowledges
that the Building is not, has not been and is not intended to be an Interim
Multiple Dwelling within the meaning of Section 280 et seq. of the New York
Multiple Dwelling Law or any other type of multiple dwelling.
25
83. Tax Escalation
--------------
The rent payable by Tenant during each lease year shall be adjusted in
accordance with this Article:
A. Definitions: For the purpose of this Article, the following
definitions shall apply:
1. The term "Base Tax Year" shall mean the fiscal year commencing
July 1, 1998 and ending June 30, 1999.
The term "Tax Year" shall mean any year commencing July 1st and
ending June 30th which covers any portion of the term of this
Lease.
2. The term "Percentage" shall mean 6%.
3. The term "Building" shall mean the land and building known as:
00-00 Xxxxx Xxxxxx, Xxxxxx, X.X. a/k/a 00-00 Xxxxxxx Xxxxxx,
Xxxxxx, N.Y.
4. The term "Real Estate Taxes" shall mean all taxes levied,
assessed or imposed at any time by any governmental authority
upon or against the Building and also any tax or assessment
levied, assessed or imposed at any time by any governmental
authority in connection with the receipt of income or rents from
the Building to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes upon or against the
Building.
B. Real Estate Taxes
1. In the event that the Real Estate Taxes payable during any Tax
Year subsequent to the Base Tax Year shall exceed the amount of
Real Estate Taxes payable during the Base Tax Year (whether any
such excess results from a higher tax rate or an increase in the
assessed valuation of the Building, or both), Tenant shall pay to
Landlord, as additional rent for such subsequent Tax Year, an
amount equal to The Percentage of the excess. After receipt of
the tax bills which indicate that Real Estate Taxes payable for
any subsequent Tax Year will exceed the Real Estate Taxes for the
Base Year, Landlord shall furnish to Tenant a statement of the
additional rent payable under this subdivision (B).
The percentage is defined as Tenant's portion of space in
building, specifically, 6%.
Such statement shall set forth the Real Estate Taxes payable for
such subsequent Tax Year and shall show an amount equal to the
Percentage of the said excess, which amount shall be due from
Tenant to Landlord, as
26
additional rent, within ten (10) business days after receipt of
the aforesaid statement; copies of the tax bills of the City of
New York shall be sufficient evidence of the amount due under
this Article, upon request.
2. The amount of Real Estate Taxes actually payable by Landlord
during the Base Tax Year shall be used in the computation of the
amount of additional rent payable under this subdivision (B)
until the amount of the Real Estate Taxes payable during the Base
Tax Year be reduced by final determination of legal proceedings,
settlement or otherwise. In the event of such reduction, the
reduced amount of such taxes shall thereafter determine the
amount of additional rent payable by Tenant pursuant to this
subdivision (B), the additional rent theretofore paid or payable
hereunder shall be recompute on the basis of such reduction.
3. If Landlord shall receive a refund of any portion of the Real
Estate Taxes payable during any Tax Year after the Base Tax Year,
based upon which Tenant shall have paid additional rent as
provided in this subdivision (B), then as a result of such a
reduction of said Real Estate Taxes by final determination of
legal proceedings, settlement or otherwise, Landlord shall,
within ten (10) business days after receiving the refund, pay to
Tenant the percentage of the refund, less the percentage of
reasonable expenses (including but not limited to attorneys' and
appraisers' fees) incurred in connection with any such
application or proceeding.
C. In no event shall the annual fixed rent under the Lease (exclusive of
the additional rents under this Article) be reduced.
D. All of the additional rent payments required under this Article shall
be appropriately prorated for any partial Tax Year occurring during
the first and last years of the term of this Lease. Landlord's
failure to prepare and deliver any of the foregoing tax bills,
statements or bills of Landlord's failure to make a demand, shall not
in any way waive or cause the Landlord to forfeit or surrender its
rights to collect the additional rent required to be paid under this
Article.
E. In the event of a default by Tenant of any of the terms, covenants and
conditions of the Lease on the part of Tenant to be performed,
Landlord shall terminate the Lease as a result thereof, Landlord shall
have any and all of the rights and remedies available to Landlord
under the provisions of the Lease or otherwise with regard to the
collection of the additional rent required to be paid by Tenant under
the terms of this Article "83."
27
84. A. "Operating Expenses" shall consist of expenses that are directly
------------------
attributable to the operation, maintenance, management and repair of
the Real Property. Tenant shall pay 6% of the increase in Operating
Expenses ("Expense Increase") incurred in connection with the Real
Property over the base year of the calendar year 1998 as and for
additional rent.
B. Operating Expenses shall exclude:
a. Capital Improvements.
b. The cost of any repair made by the Landlord because of the total
or partial destruction of the Real Property or the condemnation
of a portion of the Real Property.
c. Any costs which are reimbursed by insurance proceeds or any other
source.
d. Expenses of Landlord in curing its defaults or performing work
expressly provided for in the Lease to be borne at Landlord's
expense (including work for other tenant(s) in the Real
Property).
e. The cost of marketing and leasing the Real Property, including
leasing commissions, advertising and other marketing costs, and
related legal, accounting and other professional services; costs
to prepare space for occupancy by any tenants of the Real
Property and for renovating, repainting, decorating,
redecorating, planning, designing space for any tenants
(including Tenant) and the cost of any credits, allowances, or
other payments or rent waivers or concessions granted to any
tenant (including Tenant).
f. Landlord's cost of electricity and other services sold to
tenants, including retail tenants and the parking garage
operator, if any, which services are not standard for the
Premises, or are not available to Tenant without the necessity of
paying a separate additional charge.
g. Costs incurred by Landlord in exercising remedies against tenants
of the Real Property who violate terms of their leases.
h. Sums paid by Landlord for any indemnity, damages, fines, late
charges, penalties or interest for late payment, or to correct
violations of building codes or other laws or regulations
relative to the Real Property which are not Tenant's obligation
under the Lease.
i. Any costs incurred to remedy defects in the structure or systems
of the building located on the Real Property which are not
Tenant's obligations under the Lease.
28
j. Costs incurred to investigate and respond to hazardous materials
contamination, exposure or release (including hazardous
substances in the ground water or soil, provided the hazardous
material was not stored, used or disposed of by Tenant in
violation of law).
k. Any employee salaries and other compensation and/or health
benefits or other such benefits for the personnel of Landlord
above the level of building manager.
l. Costs of goods or services furnished by entities affiliated with
Landlord to the extent that such costs exceed the cost that would
have been incurred in an arm's length transaction with an
unrelated party.
m. Costs of Landlord's general overhead and general administrative
expenses (individual, partnership or corporate, as the case may
be), which costs would not be chargeable to operating expenses
of the Real Property under generally accepted accounting
principles consistently applied.
n. Payments of principal, interest, ground rent or any other
financing or refinancing costs on any mortgages, deeds of trust,
ground leases or other encumbrances, whether secured or unsecured
on the Real Property, including any equipment, fixtures or
improvements therein, or any penalties or late charges relating
thereto.
o. Depreciation and amortization of the building or any fixtures or
improvements located on the Real Property; and
C. Upon request, Landlord will provide accountant's breakdown of
operating costs compared against Base Year for any year in which an
additional charge is billed to Tenant.
D. Any additional rent charged may be used as an estimate for the next
year's xxxxxxxx and will be paid by Tenant in twelve (12) equal
installments together with all other rent charges. Any adjustments
will be made based upon the following year's actual costs.
E. If Tenant disputes figures provided by Landlord's accountant, Tenant,
at Tenant's sole cost, upon reasonable notice, may review the books
and records within thirty (30) days' receipt of accountants'
certification of costs. All reviews shall take place at Landlord's
place of business during normal working hours. The books and records
shall be kept in accord with generally accepted accounting principles
consistently applied.
29
In no event shall any rent adjustment hereunder result in a decrease
in the fixed/minimum annual rent.
85. ICIP Abatement
--------------
The Landlord and Tenant agree to cooperate in an application for ICIP
Abatement of Taxes.
86. Capital Improvements
--------------------
In the event any new law, rule, ordinance or regulation takes effect after
the date hereof and requires the Landlord to do any work of a capital
nature in the Demise Premises and/or the building, the Tenant shall pay, in
equal monthly installments over the remainder of the lease term to the
Landlord, 1/6th of the cost multiplied by the remaining months under the
Lease divided by one hundred twenty (120). The monthly payments shall
commence within thirty (30) days after written demand together with a copy
of the applicable invoice as for additional rent.
87. Notices
-------
Supplementing the terms of Article 27 hereof, a copy of any notice by
Tenant to Owner shall be sent to:
Et-Al Management Corp.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
and to:
Xxxxxxx Xxxxxxx, Esq.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and a copy of any notice by Owner to Tenant shall also be sent to:
Coaxicom, Inc. (dba Community Telephone)
00-00 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, X.X. 00000
88. Lease Not Binding Unless Executed and Delivered
-----------------------------------------------
This lease shall not bind Owner unless and until it has been (i) signed and
delivered by Tenant; (ii) received and accepted by Owner; and (iii) then
countersigned and redelivered by Owner to Tenant. The execution and
delivery of this Lease by Tenant shall constitute its irrevocable offer to
enter into this Lease. The Owner warrants and represents, upon which
30
warranty and representation that he understands that the Tenant shall rely
in the execution of this Lease, that Owner has the full right and lawful
authority to execute this Lease for the term thereof.
At Tenant's option, lease shall not be binding and all deposits and all
advance payments will be returned to Tenant if space is not ready for
occupancy by August 1 due to Landlord's unexcusable delay. Landlord agrees
to make best efforts to provide space as soon as possible.
89. Tenant's Federal Tax I.D. Number
--------------------------------
Tenant states that its Federal Tax Identification Number (the "Number") is
00-000-0000. From time to time, upon Owner's request, Tenant shall confirm
in writing that the Number provided by Tenant is correct and, if it is
missing or incorrect, what the correct number is. Tenant shall indemnify
Owner from and against any and all liability for any claim, fine, penalty,
cost or expense (including attorneys' fees) paid, suffered or incurred by
reason of Tenant's failure to comply with this Article.
90. Miscellaneous
-------------
A. No Offer.
This Lease is offered to signature by Tenant and it is understood that
this Lease shall not be binding upon Landlord unless and until
Landlord shall have executed and delivered a fully executed copy of
this Lease to Tenant.
B. Signatories.
If more than one person executes this Lease as Tenant, each of them
understands and hereby agrees that the obligations of each of them
under this Lease are and shall be joint and several, that the term
"Tenant" as used in this Lease shall mean and include each of them
jointly and severally and that the act of or notice from, or notice or
refund to, or the signature of, any one or more of them, with respect
to the tenancy and/or this Lease, including, but not limited to any
renewal, extension, expiration, termination or modification of this
Lease, shall be binding upon each and all of the persons executing
this Lease as Tenant with the same force and effect as if each and all
of them had so acted or so given or received such notice or refund or
so signed.
C. Authority.
If Tenant is a corporation or partnership, each individual executing
this Lease on behalf of Tenant hereby represents and warrants that
Tenant is a duly formed and validly existing entity qualified to do
business in the State of New York and that
31
Tenant has full right and authority to execute and deliver this Lease
and that each person signing on behalf of Tenant is authorized to do
so.
D. Merger.
This Lease represents the entire understanding of the parties hereto
and all prior understandings or agreements between the parties are
merged in this agreement.
E. Pornographic Uses Prohibited.
Tenant agrees that the value of the Demised Premises and the
reputation of the Owner will be seriously injured if the premises are
used for any obscene or pornographic purposes or any sort of
commercial sex establishment or for certain other purposes. Tenant
agrees that Tenant will not bring or permit any obscene or
pornographic material on the premises and shall not permit or conduct
any obscene, nude or semi-nude live performances on the premises, nor
permit use of the premises for nude modeling, rap sessions, or as a
so-called "rubber goods shop", or as a sex club of any sort, or as a
"massage parlor", nor shall the Demised Premises be used for erotic
dancing, a night club or for the preparation or serving of food or
beverages. Tenant further agrees that Tenant will not permit any of
these uses by any sublessee or assignee of the premises. This Article
shall directly bind any successors in interest to the Tenant. Tenant
agrees that if, at any time, Tenant violates any of the provisions of
this Article, such violation shall be deemed a breach of a substantial
obligation of the terms of this Lease and objectionable conduct.
"Pornographic material" is defined for purposes of this Article as any
written or pictorial matter with prurient appeal or any objects or
instruments that are primarily concerned with lewd or prurient sexual
activity.
91. Left Blank Intentionally.
-------------------------
92. Rent Commencement. The sooner of January 1, 1999 or upon substantial
-----------------
completion of Tenant's installation. See Paragraph 40.
93. Left Blank Intentionally.
------------------------
94. Left Blank Intentionally.
------------------------
95. Left Blank Intentionally.
------------------------
96. Building Services. Building shall be operated with all services and common
-----------------
area maintenance as normally provided for similar office buildings in the
area during normal business hours (including HVAC, janitorial services,
electric current, etc.). Tenant shall have 24-hours access seven (7) days
a week except for freight elevator as indicated hereinabove. Building is
managed by Landlord.
32
97. Left Blank Intentionally.
------------------------
98. Landlord covenants and agrees to reasonably maintain the building in a
neat, orderly, safe, and sanitary manner, including but not limited to,
cleaning and maintaining the common areas and exterior of the building, bag
and remove all garbage, snow and ice removal, pest and rodent extermination
for common areas.
99. Landlord has installed a central security system in the building with
electronic card entry. Landlord shall provide sufficient entry cards to
Tenant and Tenant's employees, not to exceed 10, at no charge to Tenant.
Additional cards can be purchased by Tenant at ten (10%) percent above
Landlord's cost. Landlord shall also provide to Tenant, upon Tenant's
request, security printouts and videotape, if any, at no charge to Tenant -
not to exceed three (3) times per year.
100. Landlord represents to the best of its knowledge that the Building
currently complies with the American Disabilities Act of 1990, and any
amendments or regulations promulgated thereunder or any related or similar
law (the "ADA"), and that throughout the term of this Lease Landlord shall
make any and all necessary repairs and alterations to the Building,
including the Demised Premises, required to comply with the ADA.
101. Left Blank Intentionally.
------------------------
102. By executing this lease, Owner represents that as of the date hereof, it
has the resources to fulfill its obligations hereunder.
103. By executed this lease, Tenant represents that as of the date hereof, it
has the resources to full its obligations hereunder.
104. With the signing of the lease, Tenant shall pay first month's rent in the
amount of $11,759.83 and two month's security in the amount of $23,519.66
as agreed.
105. Landlord will furnish additional security at each entry door, if possible,
completed by 12/15/98, to Tenant's spaces in the form of card swipe or
keypad systems, the cost of which to be shared equally by Landlord and
Tenant.
a. Landlord agreed to give his "Best effort" to have a security guard in
place by 3/1/99. The Landlord also agreed to position security cameras
at the front and rear entrance of the building. (within a reasonable
time after lease commencement).
106. The walls for the new offices will be gypsum board to slab for improved
acoustical privacy.
33
WITNESSES: OWNER: 00-00 XXXXX XXXXXX, LLC
____________________________ BY: ______________________________
TENANT: COAXICOM, Inc.
(dba COMMUNITY TELEPHONE)
____________________________ BY: _______________________________
1
RIDER TO LEASES BETWEEN 00-00 XXXXX XXXXXX ASSOC., LANDLORD AND COAXICOM, INC.
(DBA COMMUNITY TELEPHONE), AS TENANTS TO BE ATTACHED TO LEASES FOR OFFICE 502
AND OFFICE 403.
It is hereby agreed that Paragraph 101 is deleted from both leases dated May 27,
1998 and March 27, 1997 for offices located at 00-00 Xxxxx Xxxxxx, Xxxx Xxxxxx
Xxxx.
45-18 SQUARE, LLC
BY: _______________________
LANDLORD
COAXICOM, INC.
DBA COMMUNITY TELEPHONE,
BY: _______________________
TENANT
2
RIDER ANNEXED TO LEASE
DATED OCTOBER 20, 1998
BY AND BETWEEN
45-18 COURT SQUARE, LIC, AS LANDLORD
AND
COAXICOM, INC. (DBA COMMUNITY TELEPHONE/COMMUNITY NETWORK),
AS TENANT
Landlord is defined as 00-00 Xxxxx Xxxxxx, LLC, its partners, and successors in
interest.
40. Minimum Annual Rent
-------------------
A. Possession of the Demised Premises shall be deemed to have been
delivered upon delivery of keys by Landlord to Tenant at the
address earlier set forth, the premises to be broom clean and
January 1, 1999 or upon substantial completion as hereinafter set
forth (hereinafter the "Possession Delivery Date"). Tenant to take
occupancy and pay rent as of December 15, 1998. Please see
paragraph 92.
B. Left Blank Intentionally.
C. Tenant covenants and agrees to pay to Landlord as Minimum Annual
Rent on the first day of each month during the hereof, the
following sums:
(i) Years 1 through 3 - One hundred forty-one thousand
one hundred eighteen dollars ($141,118.00) and no cents
payable in equal monthly installments of Eleven thousand
seven hundred fifty-nine dollars and ($11,759.83) eighty-
three cents per month.
D. Rent due for partial month(s) shall be prorated.
E. The above annual sum shall be paid in equal monthly installments,
in advance, on the first day of each month during said term at the
office of Owner or at such other place as Owner may designate,
without offset or deduction whatsoever.
F. Tenant shall pay the first month's rent, in the sum of $11,759.83
upon the execution of this lease, the receipt of which is hereby
acknowledged. The payment of the first month's rent will be
applied to the first full month following expiration of the
abatement period.
1
41. Security Deposit
----------------
Simultaneous with entry into possession of the Demised Premises, Tenant
shall deposit with Owner the sum of $23,519.66 as security for the faithful
performance and observance by Tenant of the terms, provisions and conditions
of this Lease. It is agreed that in the event Tenant defaults in respect of
any of the terms, provisions and conditions of this Lease, including, but
not limited to, the payment of rent and additional rent, owner may use,
apply or retain the whole or any part of the security so deposited to the
extent required for the payment of any rent and additional rent or any other
sum to which Tenant is in default or for any sum which Owner may expend or
may be required by reason of Tenant's default in respect of any of the
terms, covenants and conditions of this Lease, including but not limited to,
any damages or deficiency in the re-letting of the premises, whether such
damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. Within thirty (30) days after receipt of written notice
that Owner has made application of all or any part of the said security
deposit, Tenant shall deposit with Owner such additional funds as are
necessary to restore the security deposit to its original amount. In the
event that Tenant shall fully and faithfully comply with all of the non-
monetary terms, provisions, covenants and conditions of this Lease, the
security not required to cure any monetary default or otherwise deducted as
a result of the physical condition of the premises shall be returned to
Tenant after the date fixed as the end of the Lease and after delivery of
entire possession of the Demised Premises to Owner. In the event of a sale
of the land and building or leasing of the building, of which the Demised
Premises form a part, Owner shall have the right to transfer the security to
the vendee or lessee and Owner shall thereupon be released by Tenant from
all liability for the return of such security, and Tenant agrees to look to
the new Owner solely for the return of said security; and it is agreed that
the provisions hereof shall apply to every transfer or assignment made of
the security to a new Owner. Tenant further covenants that, other than in
connection with a valid disposition of this Lease in compliance with the
terms of Article 64 hereof, it will not assign or encumber or attempt to
assign or encumber the monies deposited herein as security and that neither
Owner nor its successor or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
Tenant shall, at all times, maintain a rent security deposit equal to two
(2) month's rent. On each base rent increase date, Owner shall invoice
Tenant for, and Tenant shall deposit, such further sums with Owner as are
necessary to satisfy this obligation.
2
42. Restrictions on Use of the Demised Premises
-------------------------------------------
A. Subject to the provisions of this Lease, Tenant shall use the Demised
Premises only as offices in accordance with 3 the Certificate of
Occupancy and for no other purposes.
B. Tenant shall not use or permit the use of the Demised Premises or any
part thereof in any way that would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or for any
unlawful purpose or in any unlawful manner or in violation of the
Certificate of Occupancy for the Demised Premises or the Building, and
Tenant shall not suffer or permit the Demised Premises or any part
thereof to be a used in any manner or for anything to be done therein
or anything to be brought into or be kept therein that, in the judgment
of Owner, shall in any way threaten to impair or adversely affect the
character, reputation or appearance of the Building, the proper and
economical operation of the Building or any systems, facilities or
services used to operate or clean all or any part of the Building or
the Demised Premises, or the use of any of the areas of the Building by
Owner or any of the other Tenants or occupants of the Building. Tenant
shall not install or use any equipment that, in the judgment of
Landlord, could cause any adverse effect on the Demised Premises, the
Building and/or the comfort and convenience of other Tenants and
occupants of the building.
43. Landlord shall construct offices in accordance with layout drawn by Milowitz
Group in accordance with the attached sketch, all finishes to building
standard and in accordance with Building Codes. Any additions/changes
required by Tenant must be agreed to in writing by both parties and shall be
at Tenant's sole cost to be paid upon written agreement.
A. Landlord shall supply and install carpet and base at Landlord's cost.
Tenant shall have option of choosing carpet from Landlord's samples.
B. Left Blank Intentionally.
C. Any work performed by Tenant or Tenant's contractors shall be
performed in a good and workmanlike manner and shall comply with all
rules and regulations of all Governmental Authorities having
jurisdiction therein.
If Tenant is providing build-out of space or makes any alterations to
the space, the following paragraphs apply:
Tenant, or any contractor or contractors employed by Tenant, or any
other persons who will do work or install
3
equipment for Tenant, shall be fully covered by Workmen's Compensation
Insurance, and the Certificate by Tenant or any such contractor or
persons as aforesaid. Tenant further covenants, at its own cost and
expense, to take out and maintain at all times during the progress of
such work and until completion thereof, public liability insurance
policies covering Owner in compliance with the limits and such other
conditions as set forth in Article 49 hereof, and certificates
evidencing the policies shall be delivered to Owner prior to the
commencement of any work hereunder.
E. Tenant's contracts with its contractors and/or other persons who will
perform work for the Tenant shall require said persons to look solely
to the Tenant for payment and will hold Owner and the Building free
from all liens and claims of all persons furnishing labor or materials
therefor.
F. Subject to the provisions of this Article, any and all machinery,
equipment and fixtures installed by Tenant, which are not replacements
of fixtures either furnished by Owner as part of Owner's work or pre-
existing in the Demised Premises at the time of the commencement of
this Lease (sometimes herein referred to as "Tenant's Property") shall
remain personally, notwithstanding the fact that it may be affixed or
attached to the realty, and shall, during the term of this Lease or
any extension thereof, belong to and be removable by Tenant, provided
that (a) Tenant shall remove said installations prior to the
expiration of such term, and shall repair any damage caused by said
removal and shall deliver the Demised Premises to Owner in the same,
or better condition, as upon the commencement of the term hereof,
reasonable wear and tear excepted. Prior to the expiration of the term
or sooner termination thereof, Tenant shall at its own cost and
expense remove, from the Demised Premises, all of Tenant's property,
except such items thereof as Tenant shall have expressly agreed in
writing with Owner are to become the property of the Owner and Tenant
shall repair any damage to the Demised Premises resulting from such
removal. Any Tenant's property remaining in the Demised Premises after
termination of this Lease (except such items as Owner and Tenant have
expressly agreed in writing are to remain and become the property of
Owner) shall be deemed to have been abandoned by Tenant or any sub-
Tenant and either may be retained by Owner as its property or may be
removed from the premises by Owner at Tenant's expense.
G. Machinery, fixtures, chattels or equipment, if any, furnished or
installed by Tenant, the cost of which is
4
borne by Owner, shall become the property of Owner upon payment
therefor by Owner, or reimbursement of Tenant by Owner, as the case
may be, and shall not be removed by Tenant. Anything herein contained
to the contrary notwithstanding, it is understood and agreed that all
structural improvements, all plumbing lines and equipment (other than
fixtures), all electrical wiring, conduit and equipment (other than
free-standing lighting fixtures), all heating and ventilating
installations made by Tenant, whether with or without contribution or
reimbursement by Owner, shall forthwith become part of the Building
and property of Owner.
Tenant's failure to comply with any of the items and conditions of
this Article will be deemed a default pursuant to Article 17 hereof.
44. Utilities
---------
A. Electricity Service
-------------------
(1) Landlord shall contract directly with the public utility
company for electric service for the Demised Premises. Tenant
shall be responsible for the payment of the cost of such
electric service. Such electric service may be furnished to
Tenant by means of the then existing electrical facilities
serving the Premises to the extent that the same are available,
suitable and safe for such purposes. Landlord will, prior to
the commencement date, install a sub-meter to measure Tenant's
electric usage and Tenant shall pay for such electric usage at
the rate charged to Landlord by the utility company plus a five
percent administrative fee.
(2) Any additional feeders or risers to be installed to supply
Tenant's additional electrical requirements, and all other
equipment proper and necessary in connection with such feeders
or risers shall be, at Landlord's option, installed by Landlord
upon Tenant's request, at the sole cost and expense of Tenant
(including a connection fee of Three Hundred Fifty Dollars
($350.00) per kilovolt ampere, provided that, in Landlord's
reasonable judgment, such additional feeders or risers are
necessary and are permissible under applicable laws and
insurance regulations and the installation of such feeders or
risers will not cause permanent damage or injury to the
Building or the Premises or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable
alterations or materially interfere with or disturb other
tenants or
5
occupants of the Building. Tenant covenants that, at no time,
shall the use of electrical energy in the Premises exceed the
capacity of the existing feeders or wiring installations then
serving the Premises. Tenant shall not make or perform or
permit the making or performance of any alterations to wiring
installations or other electrical facilities in or serving the
Premises or any additions to the business machines, office
equipment or other appliances in the Premises which utilize
electrical energy without the prior consent of Landlord in each
instance, which consent shall not be unreasonably withheld or
delayed.
(3) Landlord shall not be liable to Tenant in any way for any
interruption, curtailment or failure, or defect in the supply
or character of electricity furnished to the Premises by reason
of any requirement, act or omission of Landlord or of any
public utility or other company servicing the Building with
electricity or for any other reason, except if caused by
Landlord's negligence or willful misconduct.
Landlord reserves the right to estimate electric costs and
Tenant specifically agrees to Pay estimated costs per submeter
which shall be confirmed by an outside source monthly.
45. Services
--------
(1) Cleaning services by Landlord at the additional charges of $1.50 per
square foot, to building standards plus actual increases from outside
cleaning company. No medical waste shall be removed by Landlord.
(2) HVAC - Landlord shall install the HVAC system and Landlord shall
maintain and repair same during the term of the Lease at the
Landlord's sole cost and expense and on the termination of the Lease,
Tenant shall deliver the Premises with the HVAC system in working
order, free and clear of all liens and encumbrances. Tenant shall pay
for electricity for its own cooling, at its sole cost and expense,
through the HVAC system.
(3) Service elevator other than Monday through Friday, 8:00 AM through
4:00 PM, at the rate of $50.00 per hour, subject to 48-hour written
notice.
6
46. Security Agreements
-------------------
A. Tenant covenants and agrees that no security agreement, whether by way
of conditional xxxx of sale, chattel, mortgage or instrument of
similar import, shall be placed upon any improvement made by Tenant
which is affixed to the realty.
B. In the event that any of the machinery, fixtures, furniture and
equipment installed by Tenant in the Demised Premises are purchased or
acquired by Tenant subject to a chattel, mortgage, conditional sale
agreement other title retention or security agreement, Tenant
undertakes and agrees (1) that no such chattel, mortgage, conditional
sales agreement or other title retention or security agreement or
Uniform Commercial Code filing statement shall be permitted to be
filed as a lien against the building and real property of which the
Demised Premises form a part, and (2) to cause to be inserted in any
of the above-described title retention, chattel, mortgage or security
agreements the following provision:
"Notwithstanding anything to the contrary herein, this chattel,
mortgage, conditional sale agreement, title retention agreement or
security agreement shall not create or be filed as a lien against the
land, building and improvements comprising the real property in which
the goods, machinery, equipment, appliances or other personal property
covered hereby are to be located or installed."
C. If any such lien or UCC financing statement, based on an agreement as
above described, is filed against the building and improvements, of
which the Demised Premises form a part, Tenant will, upon at least ten
(10) days' prior written notice thereof from Owner, cause such lien or
notice to be removed or discharged at Tenant's cost and expense, and
Tenant's failure to do so shall constitute a breach of a material
provision of this Lease.
47. Mechanic's Liens
----------------
A. Tenant shall have no power to do any act or make any contract which
may create or be the foundation for any lien upon the reversion of
Owner, the Premises herein Demised or Owner's building and
improvements, it being agreed that should Tenant cause any
alterations, changes, additional improvements or repairs to be made to
the Demised Premises, or material furnished or labor performed therein
or thereon, neither Owner for the
7
Demise Premises shall, under any circumstances, be liable for the
payment of any expenses incurred or for the value of any such work
done or material furnished to the Demised Premises or any part
thereof, but all such alterations, changes, additions, improvements
and repairs and materials and labor shall be at Tenant's expense and
Tenant shall be solely and wholly responsible to contractors,
laborers, and materialmen furnishing labor and material to said
premises and building, or any part thereof, for or on behalf of
Tenant.
B. Tenant shall not suffer or permit any mechanic's liens to be filed
against the fee ownership of the Demised Premises nor against Tenant's
leasehold interest in said premises, by reason of work, labor,
services or materials supplied or claimed to have been supplied to
Tenant or to any occupant of the Demised Premises. If any such
mechanic's lien shall at any time be filed against the Demised
Premises or the building and improvements thereon, Tenant shall, at
its own cost and expense, cause the same to be cancelled and
discharged of record by surety bond or appropriate cash deposit within
thirty (30) days after the date of filing the same and notice thereof
to Tenant, and Tenant shall indemnify and save harmless Owner from and
against any and all costs, expenses, claims, losses or damages
resulting therefrom or by reasons thereof.
C. Tenant shall also defend on behalf of Owner, at Tenant's sole cost and
expense, any action, suit or proceedings which may be brought thereon
or for the enforcement of such liens or orders, and Tenant shall pay
any damages and satisfy and discharge any judgment entered thereon and
save harmless Owner from any claim or damage resulting therefrom.
D. If Tenant shall fail to discharge such mechanic's lien within such
period, then, in addition to any other right or remedy of Owner, Owner
may, but shall not be obligated to, discharge the same, either by
paying the amount claimed to be due or by procuring the discharge of
such lien by deposit in court or bonding, and in any such event, Owner
shall be entitled, if Owner so elects, to compel the prosecution of an
action for the foreclosure of such mechanic's lien by the lienor and
to pay the amount of the judgment, if any, in favor of the lienor,
with interest, costs and allowances.
E. Any amount paid by Owner for any of the aforesaid charges and all
reasonable legal and other expenses of Owner, including reasonable
counsel fees, in defending any such
8
action in procuring the discharge of said lien, with all necessary
disbursements in connection therewith, with interest thereon at the
then legal rate of imputed interest from the date of payment, shall be
repaid within a period of twenty (20) days after written demand
therefor by Owner to Tenant, and may be treated as Additional Rent
payable with the next installment of Annual Basic Rent.
F. Prior to the commencement of any work in the Demised Premises by any
general contractor employed by Tenant or by any sub-contractors
employed by such general contractor, or sub-contractors employed by
Tenant, Tenant shall:
(1) furnish Owner with Tenant's written statement setting forth the
name and business address of the Tenant's general contractor or
sub-contractors employed by Tenant;
(2) obtain and furnish to Owner a written list of all sub-
contractors employed or to be employed by Tenant's general
contractor and certified by the general contractor.
48. Owner's Exculpation/No Recourse
-------------------------------
If the Owner or any successor-in-interest be an individual, joint venture,
tenancy-in-common, co-partnership, unincorporated association, limited
partnership or other unincorporated group of individuals, or a corporation
(all of which are referred to below, individually, and collectively, as an
"Owner Entity"), then, anything herein to the contrary notwithstanding,
Tenant shall look solely to the interest of such Owner Entity in the
building in satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by
Owner, in the event of any default or breach by Owner with respect to any
of the terms, covenants and conditions of this Lease to be observed and/or
performed by Landlord, and no other property or assets of such Owner Entity
or any member thereof, shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies.
49. Parties' Certificates
---------------------
The Parties each shall, without charge at any time, and from time to time,
within ten (10) days after request by the other, certify to any mortgagee,
proposed assignee of any mortgagee, or proposed purchaser or any other
person, firm or corporation specified by the requesting party:
9
a) That this Lease is unmodified and in full force and effect (or, if
there has been modification, that the same is in full force and effect
as modified and stating the modifications);
b) Whether or not there are then existing any set-offs or defenses
against the enforcement of any of the agreements, terms, covenants or
conditions hereof upon the part of the Tenant to be performed or
complied with (and, if so, specifying the same); and
c) The dates, if any, to which the rental and other charges hereunder
have been paid in advance.
50. Liability Insurance and Indemnification
---------------------------------------
A. During the term hereof, Tenant shall, at its own cost and expense:
1) Obtain, maintain and keep in force, for the benefit of Owner,
Managing Agent and Tenant, comprehensive general liability
insurance covering the risks in the limits set forth below, on
or about the Demised Premises (which shall include Tenant's
signs, if any):
a) Bodily Injury:
Each person...........$1,000,000.00
Each Occurrence ......$1,000,000.00
b) Property Damage:
Each Occurrence.......$ 500,000.00
c) Completed operations and contractual liability with the
same bodily injury and property damage limits stated in
(a) and (b) above.
d) Fire and extended coverage for Tenant's fixtures,
alterations and inventory in an amount adequate to cover
the cost of replacement, but not less than $100,000.00.
B. Owner and its managing agent, Et-Al Management Corp., shall be named
as an additional insured in said policies, as their interests may
appear, and shall be protected against all liability occasioned by an
occurrence insured against. All said policies of insurance shall be
issued by insurance companies reasonably satisfactory to Owner and
which are authorized to do business in the State of New York. Tenant
shall deliver to Owner the policies of
10
insurance, together with evidence of the payment of premiums thereon
within ten (10) days of taking occupancy of the Demised Premises and
furnish to Owner at least twenty (20) days prior to the expiration of
any such policies, a new policy, with evidence of the payment or
premiums thereon. The parties hereto agree that the payment of said
premiums may be financed, as long as same are made and kept current.
Said policies shall also provide that the insurer will give Owner at
least thirty (30) days prior written notice of cancellation of said
policy.
C. Notwithstanding the limits of insurance specified in this Article,
Tenant agrees to indemnify Owner, its agents, servants and employees
against all damage, loss or liability resulting from any of the risks
referred to in this Article. Such indemnification shall operate
whether or not Tenant has placed and maintained the insurance
specified in this Article and whether or not such proceeds from such
insurance actually are collectible from one or more of the insurance
companies; provided, however, that Tenant shall be relieved of its
obligations of indemnity herein Pro Tanto of the amount actually
recovered from one or more of the insurance companies by reason of
injury or damage to, or loss sustained on the Premises.
D. Tenant shall pay all premiums and charges for all of said policies,
and if Tenant shall fail to make any payment when due or carry any
such policy, Owner may, but shall not be obligated to, make such
payment or carry such policy, and the amount paid by Owner, with
interest thereon, shall be repaid to Owner by Tenant on demand, and
all such amounts so repayable, together with such interest, shall be
considered as Additional Rent payable hereunder for the collection of
which Owner shall have all of the remedies herein or by law provided
for the collection of rent. Payment by Owner of any such premium or
the carrying by Owner of any such policy, shall not be deemed to waive
or release the default of Tenant with respect thereto.
Tenant must provide evidence of coverages prior to taking occupancy of
leased space.
E. Tenant acknowledges that Owner will not carry insurance of any kind on
Tenant's furniture, furnishings, finishes, or wall coverings and/or
fixtures, equipment, and improvements, and agrees that Owner shall not
be obligated to repair any damage thereto or to replace the same.
11
F. Landlord will maintain same type of liability insurance for all public
spaces in building and will indemnify and defend Tenant for events
which occur in the buildings common space due to Landlord/Owner's
negligence.
51. Tenant's Conduct of Business
----------------------------
Tenant covenants and agrees:
A. To do all things necessary to keep the Demised Premises clean,
orderly and neat at all times, and to prevent odors, all at Tenant's
sole cost and expense, and to conduct its business in a proper
manner.
B. That Tenant shall conduct its operations in the Demised Premises in
an orderly and proper manner so as not to annoy, disturb or be
offensive to others.
C. That Tenant shall not, at any time, discharge into the plumbing,
sewage or drainage system, any waste materials which will result in
the creation of a blockage in said system or otherwise adversely
affect the proper and clean maintenance and operation thereof.
D. That Tenant, at its sole cost and expense, shall provide regular
exterminating and pest control services using Landlord's exterminator
in the Demised Premises at a regular intervals, in order to prevent
the occurrence of any vermin in or about the Demised Premises.
52. Adjustment of Rent for Increases in Real Estate Tax
---------------------------------------------------
See Paragraph 83.
53. Assignment and Sub-letting Provisions
-------------------------------------
Tenant may not assign this Lease under any circumstances without the prior
written consent of Owner, which consent may be withheld for any reason or
for no reason whatsoever.
54. Rent Arrears, Etc.: Supplementing Article 25 of the printed form of lease:
-------------------
A. Owner, at Owner's option, shall have the right, when Tenant is in
default in the payment of Fixed Rent or Additional Rent, to demand
payment by certified, bank or teller's check, or by postal money
order.
B. In the event that any payment under this Lease shall be made in the
form of a check from any person, firm or corporation other than the
person, firm or corporation named in this Lease, the acceptance of
same by Owner shall not, under any circumstances, be deemed
recognition
12
of a sub-letting or any assignment of this Lease, regardless of the
number of times that such payment shall be made by such other person,
firm or corporation.
C. Late Charge. If Tenant shall fail to pay all or any part of any
installment of Fixed Rent or Additional Rent for more than ten
(10) days after the same shall have become due and payable (including
the dishonor of a payment made by check, even if such check was
tendered in a timely manner), Tenant shall pay as Additional Rent
hereunder to Owner a late charge of six (6) cents for each dollar of
the amount of such Fixed Rent or Additional Rent which
shall not have been paid to Owner within said ten (10) day period, in
addition to any other right or remedy available due to such late
payment.
D. In the event that any check paid by or for the benefit of Tenant to
Owner is dishonored, Tenant shall pay Owner as Additional Rent
hereunder a charge of One Hundred Dollars ($100.00) in addition to any
other late charge or right or remedy available due to such dishonored
payment.
55. Additional Rent
---------------
A. All payments, other than Minimum Annual Rent required to be made by
Tenant pursuant to this Lease (including, but not limited to,
escalation charges, and any and all damages, interest, costs, fees and
expenses caused by Tenant's default) shall be deemed additional rent
and, in the event of any non-payment thereof, Owner shall have all
rights and remedies provided for herein and by law for non-payment of
Minimum Annual Rent in addition to whatever other remedies may be
available to Owner.
B. Unless expressly provided otherwise in this Lease, the amount shown as
due to Owner (or Owner's agent) in all bills, invoices and statements
to Tenant shall be due and payable by Tenant upon receipt without
further demand. Any delay or failure of Owner or its agent to prepare
and deliver any xxxx, statement or invoice shall not constitute a
waiver of the right to collect any payment which may have become due
during the term of this Lease, including without limitation,
retroactive payments for any and all amounts unbilled.
C. All payments of Minimum Annual Rent and additional rent pursuant to
this Lease shall be made by Tenant with checks drawn upon a New York
City bank. If Owner receives from Tenant any payment less than the
full amount of the Minimum Annual Rent and additional rent then due
and owing, Tenant hereby waives its right, if
13
any, to designate the items to which such payment shall be applied
and agrees that Owner, in its sole discretion, may apply such payment
in whole or in part to any Minimum Annual Rent, any additional rent or
to any combination thereof then due and payable hereunder.
D. The losing party in any action or proceeding between Owner and Tenant
shall pay the reasonable attorneys' fees, costs and disbursements of
the prevailing party for such action or proceeding upon the assignment
thereof by the Court or on demand. If a default of Tenant causes Owner
to prosecute or defend an action or proceeding with a third party,
Tenant shall pay the reasonable attorneys' fees, costs and
disbursements of Owner for such action or proceeding on demand. If
Owner suffers, pays or incurs any damages, losses, fees or expenses
(including without limitation, reasonable attorneys' fees and
disbursements) due to a default, act, omission or request of Tenant,
Tenant shall pay the total amount thereof to Owner on demand.
E. If all rent is not paid in full and actually received by Owner within
fifteen (15) days after it is due and payable hereunder, Tenant shall
pay Owner a late fee of 2% per month as additional rent. However, if
the collection of such late fee at the rate specified herein would be
usurious or otherwise unenforceable, interest on late payments shall
accrue at the highest enforceable rate.
F. References in this Lease to "rent," "Rent," "rents," "Rents,"
"rental," "Rental," "rentals" and "Rentals" shall mean and include
Minimum Annual Rent and additional rent. The Minimum Annual Rent is
the minimum rental due and payable without prior demand, offset or
deduction. No decrease in any additional rent for any period shall
yield an offset or deduction in any other rental or for any other
period. References in this Lease to Tenant being "in default" and/or
Tenant's "breach" or "default" shall mean and include each and every
default, breach, misfeasance, nonfeasance, non-payment, or any other
failure of Tenant to perform any of its obligations hereunder. If
Owner gives notice of default and Tenant seeks declaratory relief and
Tenant's time to cure is extended pending the outcome of such
declaratory judgment action, Tenant shall be deemed to be "in
default" under this Lease during the pendency of such action for the
purposes of those rights that are exercisable by Tenant only if it is
not "in default". All of Tenant's obligations to pay rent, to
indemnify Owner and to obtain insurance shall survive the expiration
of the term or sooner termination of this Lease.
14
G. Owner's managing agent, Et-Al Management Corp., may give notices,
demands, invoices, statements and/or bills to Tenant in Owner's
behalf; any such notice, statement, invoice, demand or xxxx shall be
deemed to have been given by Owner.
H. The provisions of this Article shall supplement (not limit) other
provisions of this Lease pertaining to the same matters as this
Article and related matters.
56. Owner's Right of Entry
----------------------
A. Tenant shall permit Owner to erect, use, maintain and repair pipes,
cables, conduits, plumbing, vents and wiring in, to and through the
Demised Premises, as and to the extent that Owner may now or hereafter
deem to be necessary or appropriate for the proper operation and
maintenance of the building of which the Demised Premises are a part.
All such work shall be done, so far as practicable, in such manner as
to avoid interference with Tenant's use of the Demised Premises, and
as expeditiously as possible. The liability of Owner, if any, under
this Article shall be limited to the prompt repair, at the sole cost
and expense of Owner, of any damage caused to the Demised Premises by
the Owner in the course of doing work under this paragraph.
B. Upon providing forty-eight (48) hours advance written notice, Owner,
or its agents or assignees, shall have the right to enter the Demised
Premises during business hours for the purpose of making such repairs
or alterations as Owner shall be required or shall have the right to
make by the provision of this Lease. Owner shall attempt to do all
such work at a time, and in a manner, that will not unreasonably
inconvenience Tenant, significantly diminish Tenant's floor area or
significantly disrupt Tenant's architectural layout. Owner shall be
allowed to take all material into and upon the Demised Premises that
may be required for repairs or alterations, without constituting an
eviction of Tenant, in whole or in part, so long as any repair work by
Owner is diligently prosecuted to completion. Owner shall also have
the right, without prior written notice, to enter the Demised Premises
at such other times as such entry may be required by circumstances of
emergency affecting the Demised Premises or the building containing
the same. In addition, Owner, or its agents or assignees, shall have
the right to enter the Demised Premises upon providing twenty-four
(24) hours prior written notice during business hours for the purpose
of inspecting the general condition and state of repair of the
Premises and the showing of the Premises to any prospective purchaser
or
15
mortgagee, such entry and inspection to be conducted in a manner
calculated to not unreasonably interfere with the operation of
Tenant's business or its customers.
C. The rights granted to Owner by the terms of this Article shall be
deemed supplementary to the provisions set forth in Article 13 of the
printed portion of this Lease.
57. Suspension of Services
----------------------
Anything in this Lease to the contrary notwithstanding, Owner reserves the
right to suspend the service of any utilities, when necessary by reason of
accident or of repairs, alterations or improvements necessary to be made in
the Demised Premises or the building of which it is a part, until such
repairs, alterations or improvements shall have been completed, and Owner
shall have no responsibility or liability for such suspension of services,
provided Owner proceeds with diligence and continuity to complete such
repairs, alterations or improvements and uses its best efforts to restore
such services as soon as practicable. The foregoing shall not be deemed to
impose upon Owner any obligations for the furnishing of any service,
maintenance or repair other than is specifically set forth in this Lease.
Owner will provide 72 hours advance notice of any planned service
suspension which is for regular maintenance purposes. No notice shall be
required for emergency suspension of service resulting from an accident or
other unanticipated event.
58. Condemnation
------------
A. If the whole of the Demised Premises shall be taken under the power of
eminent domain of any public or private authority, then this
Lease and the term thereof shall cease and terminate, as of the date
of such taking and any unearned rent or other charges, if any,
paid in advance, shall be refunded to Tenant.
B. In the event that only a portion of the Demised Premises shall be
taken under the power of eminent domain by any public or private
authority, then this Lease and the term thereof shall continue in full
force and effect, at option of either the Owner or the Tenant,
provided, however, that Owner shall, at its expense forthwith restore
what may remain of the Demised Premises to substantially the same
condition as prior to the condemnation. There shall be a pro rata
abatement of basic rent hereunder to the extent that the amount of
floor space so taken compares to the amount of floor space prior to
such condemnation, to compensate Tenant for its loss of use of such
portion of the Demised Premises. The minimum rent reserved herein, and
any
16
other charges payable to Tenant hereunder, shall be suspended
(provided Tenant is not then using the Demised Premises) for the
period from the date of the taking until the remainder of the Demised
Premises shall have been restored as aforesaid.
C. Tenant shall not be entitled to any award for the loss of or loss in
value of the leasehold, but only to an award for loss of or damage to
its fixtures and/or equipment and to moving expenses, all to the
extent allowed and solely in the event that such allowance does not,
in any way, diminish the award to Owner. The respective damages to
which Owner and Tenant are entitled by reason of any such taking shall
be fixed and paid, respectively, to Owner and Tenant, as their
interests appear, and in no event shall there be a merger of interest.
D. Within fifteen (15) days after Owner receives written notice of any
such taking or intention to take under power of eminent domain, Owner
shall forward a copy thereof to Tenant.
59. Damage or Destruction
---------------------
A. If the Demised Premises shall be partially damaged by fire or other
casualty, the damaged portions of the Demised Premises (but not
Tenant's trade fixtures or personal property) shall be repaired by and
at the expense of Owner (unless such fire or casualty resulted, in
whole or in part, from any act or omission, whether negligent or
otherwise, of Tenant or his agents, servants, contractors, employees,
invitees, or assigns, in which case such repairs shall be at the cost
and expense of Tenant), and the rent until such repairs shall be made
shall be apportioned according to the part of the Demised Premises
which is usable by Tenant. If Tenant shall have paid rent in advance,
Owner shall repay to Tenant an amount equal to that portion of rent so
paid in advance, payment of which is abated.
B. If the Demised Premises are totally damaged or are rendered wholly
untenantable by fire or other casualty, Owner shall, within sixty (60)
days after such fire or other casualty, give Tenant written notice of
Owner's election whether:
1) To terminate this Lease and thereupon the term of this Lease
shall expire by lapse of time upon the third (3rd) day after such
notice is given, and Tenant shall vacate the Demised Premises and
surrender the same to Owner. If Tenant shall not be in default
under this Lease, or if any monetary
17
default existing at the time of the giving of such a notice is cured
in full within three (3) days after delivery of said notice, then upon
the termination of this Lease under the conditions provided for in the
sentence immediately preceding, Tenant's liability for rent accruing
subsequent to the fire or casualty shall cease and be apportioned as
of the day following such fire or casualty, or
2) To restore or rebuild the Demised Premises in character, layout, area
and equipment (but not Tenant's trade fixtures or personal property)
substantially equal to the premises damaged or destroyed immediately
prior to such damage or destruction, and it is agreed that in such
event, this Lease shall continue in full force and effect, but the
rent, the additional rent, and all other payments and obligations of
Tenant shall xxxxx as of the date of such fire or other casualty,
until the Demised Premises shall have been fully and completely
restored or rebuilt by Owner and possession thereof shall have been
delivered to Tenant.
Should Owner elect to send Tenant written notice under subparagraph
(1) of this Article 56B, and thereafter, within one (1) year of the
giving of such notice, act nevertheless to restore or rebuild the
Demised Premises in character, layout, area and equipment (but not
Tenant's trade fixtures or personal property) substantially equal to
the premises damaged or destroyed immediately prior to such damage or
destruction, then and in such event, Owner agrees to give Tenant a
thirty (30) day unilateral option to be exercised by Tenant in the
method and manner otherwise set forth in this Lease, to resume
occupancy for the remaining balance of the original lease term under
all of the other terms and conditions set forth in this Lease.
C. Owner shall not be liable for reasonable delay under the foregoing
subparagraphs A or B if such delay arises by reason of adjustment of
insurance on the part of Owner and/or Tenant or the reasonable delay on
account of any cause beyond the control of Owner or contractors employed by
Owner, including, but not limited to strikes, labor disputes and shortages
of material.
D. Tenant hereby expressly waives the provisions of Section 227 of the Real
Property Law and of any law now in force or hereafter enacted which, in
substance, provides for termination of a lease of real property by reason
of
18
destruction or untenantability of the Premises demised thereunder
caused by fire or other casualty and agrees that the provisions of
this Article 57 shall govern and control in lieu of any such
provisions of law.
60. Signs
-----
A. Tenant shall not, without Owner's prior written consent, place or
install any sign on the exterior of the Demised Premises, or the
building of which it is a part, or on the inner or outer faces of the
windows or doors of the Demised Premises. Tenant shall be permitted to
install and maintain, at its own cost and expense, an exterior sign,
provided the same receives the prior approval of Owner as to
dimensions, shape, design, size, color, wording, material of
composition and location. Tenant agrees that any exterior sign
approved by Owner shall not be installed until all approvals and
permits are first obtained by Tenant from governmental agencies having
jurisdiction thereover and that all fees payable in connection with
such installation, maintenance and permits shall be paid by Tenant.
B. Tenant shall not place in the windows or in any display or other area
visible to public view from the outside of the Demised Premises any
flashing, blinking or animated sign or one which otherwise has
variations in the intensity of illumination without first obtaining
Owner's prior written approval.
C. Tenant shall not, after having obtained the approval of Owner, change
or alter any sign in any respect whatsoever, including but not limited
to size, material of composition or location, without first obtaining
the prior written approval of Owner, except that Tenant may change the
phraseology in a sign previously approved by Owner without additional
approval.
D. In the event that Owner shall deem it necessary to remove any sign of
Tenant in order to make any repairs, alterations or improvements in,
to or upon the Demised Premises, or the building of which it is a
part, Owner shall have the right to do so, provided the same be
removed and replaced at Owner's expense, promptly upon completion of
such repair, alteration or improvements.
61. Replacement of Plate Glass
--------------------------
Tenant shall, at its own cost and expense, replace any and all plate or
other glass damaged or broken from any cause whatsoever in and about the
Demised Premises. Tenant shall, at its own cost and expense, either insure
and keep insured
19
all such glass in stock companies authorized to do business in the State of
New York, naming the Owner as a party insured thereunder, or may act as a
self-insurer for plate glass.
62. Holdover by Tenant
------------------
Tenant will have no right to remain in possession of all or any part of the
Demised Premises after the expiration of the term. If Tenant remains in
possession of all or any part of the Demised Premises after the end of said
term, with the express or implied consent of Owner: (a) such tenancy will
be deemed to be a periodic tenancy from month-to-month only; (b) such
tenancy will not constitute a renewal or extension of this Lease for any
further term; and (c) such tenancy may be terminated by Owner upon the
earlier of thirty (30) days prior written notice or the earliest date
permitted by law. In such event, monthly rent (the reasonable value of use
and occupancy) will be increased to an amount equal to one-half (l/2) of
the sum of the Minimum Annual Rent plus all additional rentals payable
during the last year of the term, and any other sums due for additional
rent under this Lease will be payable in the amount and at the times
specified in this Lease. Such month-to-month tenancy will be subject to
every other term, condition and covenant contained in this Lease. Neither
the billing nor the collection of use and occupancy in the above amount
shall be deemed a waiver of any right of Owner to collect damages for
Tenant's failure to vacate the Demised Premises after the expiration or
sooner termination of this Lease. The provisions of this Article shall
survive the expiration or sooner termination of this Lease. In the event a
renewal lease is executed by all parties within ninety (90)days of the
expiration date and all rent has been paid timely, the rent will be
adjusted retroactively to the renewal rate.
63. Broker
------
Tenant and Owner covenant, warrant and represent to each other that neither
has had any dealings with any real estate broker, agent or finder in
consummating the Lease other than Aegis Realty, Equis, and Xxxxxx
& Zuckerbrot and that no conversation or prior negotiations were had with
any individual or entity other than Aegis Realty, Eguis, and Xxxxxx
& Zuckerbrot concerning the renting of the Demised Premises. In reliance
upon such representation, Owner agrees to pay any commission due to Aegis
Realty, Eguis, Shalom & Zuckerbrot. The parties agree to hold each other
harmless from and against any claims for brokerage commissions arising out
of any conversation of negotiations had by The Tenant with any other
broker.
20
64. Subordination and Attornment
----------------------------
A. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all mortgages and building
loan agreements, including without limitation, mortgages and building
loan agreements and leasehold mortgages which may now or hereafter
affect the Land and/or the Building and/or any of such Leases, whether
or not such mortgages shall also cover other lands and/or buildings,
to each and every advance made or hereafter to be made under such
mortgages and/or building loan agreements, and to all renewals,
modifications, replacements, assignments, and extensions of such
Leases, building loan agreements, mortgages and spreaders and
consolidations of such mortgages. This Article shall be self-operative
and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly, at its sole
cost and expense, execute and deliver any instrument in recordable
form that Owner, the lessor of any such Lease or the holder of any
such mortgage or any of their respective assigns or successors in
interest may reasonably request to evidence such subordination and the
Tenant hereby constitutes and appoints Owner the attorney-in-fact for
Tenant to execute any such instrument for and on behalf of Tenant in
the event Tenant fails to execute such instrument within ten (10)
days following delivery of written request therefor. The Leases to
which this Lease is, at the time referred to, subject and subordinate
pursuant to this Article, are hereinafter sometimes called "Superior
Leases" and the mortgages to which this Lease is, at the time
referred to, subject and subordinate, are hereinafter called "Superior
Mortgages" and the Lessor of a Superior Lease or its successor in
interest at the time referred to is sometimes hereinafter called a
"Lessor" and the holder of a Superior Mortgage or its successor in
interest at the time referred to is sometimes hereinafter called a
"Holder". This provision supplements Article 7 of this Lease.
B. In the event of any act or omission of Owner which would give Tenant
the right, immediately or after lapse of a period of time, to cancel
or terminate this lease, or to claim a partial or total eviction,
Tenant shall not exercise such right (l) until it has given written
notice of such act or omission to the holder of each Superior Mortgage
of record as of the date of the execution of this Lease, or of
which Owner has given Tenant written notice, and (2) unless such act
or omission shall be one which is not capable of being remedied by
Owner or such Holder within a reasonable period of time, until a
21
reasonable period of time for remedying such act or omission shall
have elapsed following the giving of such notice and following the
time when such Holder shall have become entitled under such Superior
Mortgage to remedy the same (which reasonable period shall in no event
be less than the period to which Owner would be entitled under this
Lease or otherwise, after similar notice, to effect such remedy),
provided such Holder shall, with due diligence give Tenant written
notice of its intention to, and commence and continue to, remedy such
act or omission. As of the date hereof, the parties entitled to
receive notice under this Paragraph 63C are as follows:
00-00 Xxxxx Xxxxxx LLC and 45-18 Equity, at
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
In the event of any changes, notification will be given to tenant.
C. If the fee owner of the building which includes the Demised Premises,
or the Holder of a Superior Mortgage, shall succeed to the rights of
Owner under this Lease, whether through possession or foreclosure
action or through termination for any reason of the leasehold estate
covering the building which includes the Demised Premises or by
delivery of a new lease or deed, then, at the request of such party so
succeeding to Owner's rights (herein sometimes called "Successor
Owner") and upon such a Successor Owner's written agreement to accept
Tenant's attornment, Tenant shall attorn to and recognize such
Successor Owner as Tenant's Landlord under this Lease. The foregoing
provisions shall inure to the benefit of any such Successor Owner, and
shall be self-operative upon any such demand, without requiring any
further instrument to give effect to said provisions. Tenant, however,
upon demand of any such Successor Owner, agrees to execute, from time
to time, an instrument in confirmation of such attornment which is
satisfactory to such Successor Landlord. Upon such attornment, this
Lease shall continue in full force and effect for the remainder of the
term originally demised under this Lease, as or as if it were a direct
lease between the Successor Owner and Tenant upon all of the terms,
covenants, conditions, agreements and provisions, as are set forth in
this Lease, except that the Successor Owner shall not:
1) be subject to any offset not expressly provided for in this
Lease.
22
2) be bound by any previous modification of this Lease not expressly
provided for in this Lease, or by any previous pre-payment of
more than one month's rent, unless such modification or
prepayment shall have been expressly approved in writing by the
Successor Owner through or by reason of which the Successor
Landlord shall have succeeded to the rights of Owner under this
lease.
D. Owner covenants and represents that it knows of no outstanding
lawsuits, claims or judgments affecting or limiting Owner's right or
authority to perform under this lease.
65. Left Blank Intentionally
------------------------
66. Modification - Financing
------------------------
If, in connection with Owner's obtaining financing for the Real Property or
any portion thereof, a bank, insurance company or other lending institution
shall request reasonable modifications of this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or defer its
consent thereto, provided that such modifications do not increase the
obligations of Tenant hereunder or adversely affect the leasehold interest
hereby created or otherwise and adversely affect Tenant's rights hereunder.
67. Conditional Limitation
----------------------
In the event that in any twelve (12) month period (A)a nonmonetary default
of the kind set forth in Article 17(l) shall have occurred or (B) Tenant
shall have defaulted in the prompt payment of Minimum Annual Rent or
Additional Rent, or any part of either, and Owner shall have commenced a
summary proceeding to dispossess Tenant in each such instance, then,
notwithstanding that such defaults may have been cured at any time after
the commencement of such summary proceeding, any two (2) further defaults
by Tenant within the ensuing twenty-four (24) month period shall be deemed
to be a violation of a substantial obligation of this Lease by Tenant and
Owner may serve a written three (3) days, notice of cancellation of this
Lease upon Tenant and, upon the expiration of said three (3) days, this
Lease and the term shall end and expire as fully and completely as if the
expiration of such three (3) day period were the day herein definitely
fixed for the end and expiration of this Lease and the term and Tenant
shall then quit and surrender the Demised Premises to Owner, but Tenant
shall remain liable as elsewhere provided in this Lease. Tenant's payment
of Minimum Annual Rent and/or Additional Rent shall be considered "prompt"
if received by Owner within ten (10) days of the date that same is due.
23
68. Bankruptcy
----------
Without limiting any of the provisions of Article 16, 17 or 18 hereof, if
pursuant to the Bankruptcy Code of 1978 and the Bankruptcy Code of 1986, as
the same may be amended, Tenant is permitted to assign this Lease in
disregard of the restrictions contained in Article 11 or any other
provision of this Lease. Tenant agrees that adequate assurance of future
performance by the assignee permitted under such Code shall mean deposit of
cash security with Owner in an amount equal to the sum of one year's
Minimum Base Rent then reserved hereunder plus an amount equal to all
additional rent payable under the provisions of this Lease for the calendar
year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Owner, without interest, for the
balance of the term of this Lease as security for the full and faithful
performance of all of the obligations under this Lease on the part of
Tenant yet to be performed. If Tenant receives or is to receive any
valuable consideration for such an assignment of this Lease, such
consideration, after deducting therefrom (A) the brokerage commissions, if
any, and other expenses reasonably incurred by Tenant for such assignment
and (B) any portion cf such consideration reasonably designated by the
assignee as paid for the purchase of Tenant's property in the demised
premises, shall be and become the sole and exclusive property cf Owner and
shall be paid over to Owner directly by such assignee. In addition,
adequate assurance shall mean that any such assignee of this Lease shall
have a net worth, exclusive of good will, equal to at least fifteen
(15) times the aggregate of the Minimum Annual Rent reserved hereunder plus
all additional rent for the preceding calendar year as aforesaid.
69. Hazardous Materials
-------------------
A. For purposes of this Lease, "hazardous materials" means any explosives,
radioactive materials, hazardous wastes, or hazardous substances,
including without limitation, substances defined as "hazardous substances"
in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. #9601-9657; the Hazardous Materials
Transportation Act of 1975, 49 U.S.C. #1801-1812; the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. #6901-6987; or any other similar laws
(collectively, "hazardous materials laws").
B. Tenant will not cause or permit the storage, use, generation, or
disposition of any hazardous materials in, on, or about the demised
premises or the Building by Tenant, its agents, employees or contractors.
Tenant will not permit the Demised Premises to be used or operated in a
manner that may cause the Demised Premises
24
or the Building to be contaminated by any hazardous materials in violation
of any hazardous materials laws. Tenant will immediately advise Owner in
writing of (1) any and all enforcement, cleanup, remedial, removal, or
other governmental or regulatory actions instituted, completed or
threatened pursuant to any hazardous materials laws relating to any
hazardous materials affecting the Demised Premises; and (2) all claims made
or threatened by any third party against Tenant, Owner, or the Demised
Premises relating to damage, contribution, cost recovery, compensation,
loss, or injury resulting from any hazardous materials on or about the
Demised Premises. Without Owner's prior written consent, Tenant will not
take any remedial action or enter into any agreements or settlements in
response to the presence of any hazardous materials in, on or about the
Demised Premises.
C. Tenant will be solely responsible for and will defend, indemnify and hold
Owner, its agents and employees, harmless from and against all claims,
costs and liabilities, including attorneys' fees and costs, arising out
of or in connection with Tenant's breach of its obligations in this
Article, including, but not limited to, the removal, cleanup and
restoration work and materials necessary to return the Demised Premises and
any other property of whatever nature located on the Building to their
condition existing prior to the appearance of Tenant's hazardous
materials on the Demised Premises. Tenant's obligations under this Article
will survive the expiration or other termination of this Lease.
70. Left Blank Intentionally
------------------------
71. Occupancy Prior to Commencement Date
------------------------------------
In the event that Owner permits Tenant to occupy the Demised Premises prior
to the commencement date, such occupancy shall be upon all of the terms and
conditions contained in this Lease except that Tenant shall pay a pro-rated
rent for the period to the commencement date and shall be responsible for
all other charges provided for under the Lease.
72. Waste Removal, Etc.
------------------
Tenant shall, at its own cost and expense, promptly dispose of all garbage,
ashes and waste arising from the conduct of its business in the
Demised Premises at such times and in such manner so as to avoid any
obnoxious or offensive smells or odors therefrom or otherwise
materially interfering with the comfort and quiet enjoyment of the other
occupants of the
25
building. Tenant further covenants and agrees, at the Tenant's own cost
and expense, to keep the drain waste and connections with mains free from
obstruction to the reasonable satisfaction of the Landlord, its agents and
all authorities having jurisdiction thereof. Tenant further covenants and
agrees that Tenant will, at Tenant's own cost and expense, keep and
maintain the interior in good order and repair. (See paragraph 45(i) of
Rider).
73. Irrespective of the place of execution or performance, this agreement shall
be governed by and construed in accordance with the laws of the State of
New York. This agreement shall be construed without regard to any
presumption or other rules requiring construction against the party causing
this agreement to be drafted. If any words or phrases in this agreement
shall have been stricken out or otherwise eliminated, whether or not any
other words or phrases have been added, this agreement shall be construed
as if the words or phrases so stricken out or otherwise eliminated were
never included in this agreement and no implication or inference shall be
drawn from the fact that said words or phrases were so stricken out or
otherwise eliminated. All terms and words used in this agreement,
regardless of the number or gender in which they are used, shall be deemed
to include any other number and any other gender, as the context may
require.
74. Left Blank Intentionally
------------------------
75. Notice of Owner's Default
-------------------------
In the event of any alleged default in the obligation of Owner under this
Lease, Tenant will deliver to Owner written notice listing the reasons for
Owner's default and Owner will have thirty (30) days following receipt of
such notice to cure such alleged default or, in the event that the alleged
default cannot reasonably be cured within a thirty (30) day period, to
commence action and proceed diligently to cure such alleged default. A copy
of such notice to Owner wil1 be sent to any holder of a mortgage or other
superior lien on the Building or this Lease of which Tenant has been
notified in writing, and any such holder will also have the same time
periods to cure such alleged default.
76. Modifications Requested by Mortgagee
------------------------------------
If any actual or prospective holder of a fee or mortgage interest in the
Building, the improvements thereon, the land thereunder or any leasehold
interest in either, requires the modification of this Lease in such manner
as does not materially lessen Tenant's rights or increase its obligations
26
hereunder, Tenant shall not withhold or delay its consent to such
modification and shall execute and deliver such confirming documents
therefor as such holder requires.
77. Conflict Between Rider and Printed Lease
----------------------------------------
If and to the extent that any of the provisions of any Rider to this Lease
conflict or are otherwise inconsistent with any of the printed provisions
of this Lease, whether or not such inconsistency is expressly noted in the
Rider, the provisions of the Rider shall prevail. The description of a
particular right or remedy of Owner shall not be deemed exclusive or
otherwise limit, waive or impair Owner's resort to any or all other rights
and remedies available. The terms "Owner" and "Landlord" whenever used
in this Lease shall have the same meaning. The meaning and effect of this
Lease shall not be determined subject to any presumption against Owner as
drafter. The doctrine of "ejusdem generis" shall not be applied to limit a
general description to the same class or category of things or matters
contained in the list (or specific description) which the general
description follows or otherwise relates to. If a word or phrase contained
in a prior draft of this Lease was deleted intentionally, the meaning and
effect of this Lease shall be determined as if the language stricken had
not been included in any prior draft.
78. Rider Governs
-------------
If any provision contained in this Rider is inconsistent or in conflict
with any printed provision of this Lease, the provision contained in this
Rider shall supersede said printed provision and shall be paramount and
superior.
79. Partial Invalidity/Joint Liability
----------------------------------
If any provision of this Lease or the application thereof to any person or
circumstance shall, to any extent be held void, unenforceable or invalid,
then the remainder of this Lease or the application of such provisions to
persons or circumstances other than those to which it is held void,
unenforceable or invalid shall be valid and enforced to the fullest extent
permitted by law. If there shall be more than one Tenant, they shall all be
bound, jointly and severally, by the terms, covenants and conditions of
this Lease.
80. Indemnity: Supplementing Article 8 of the printed form of this lease.
---------
A. Tenant agrees to indemnify and save harmless Owner from and against
(a) all claims of whatever nature against Owner arising from any
negligent or improper act or omission of Tenant, its contractors,
licensees, agents,
27
servants, employees, invitees or visitors, (b) all claims against
Owner arising from any accident, injury or damage whatsoever caused to
any person or to the property of any person and occurring during the
Term in or about the Demised Premises, and (c) all claims against
Owner arising from any accident, injury or damages which result or are
claimed to have resulted from an act or omission of Tenant or Tenant's
contractors, agents, servants, employees, invitees or visitors. This
indemnity shall not apply to the extent that any of the claims
described above are caused by the negligent act or omission of
Landlord, its contractors, agents, servants or employees. This
indemnity and hold harmless agreement shall include indemnity from and
against any and all liabilities, fines, suits, demands, costs and
expenses (including without limitation, reasonable attorneys' fees) of
any kind or nature incurred in or in conjunction with any such claim
or proceeding brought thereon, and the defense thereof.
B. Tenant's indemnity set forth in this Article 80 shall extend and apply
to each Superior Lessor and Superior Mortgagee.
81. Requirements of Law
-------------------
Supplementing Article 6 of the printed form of Lease, Tenant's obligation
to comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions
and boards relating to Tenant's manner of use of the Demised Premises shall
include, but shall not be limited to, all requirements relating to
environmental matters by reason of Tenant's manner of use of the Demised
Premises (whether or not such requirement would otherwise be the
responsibility of Owner under said laws, orders or regulations) including,
but not limited to, the storage, treatment, handling or transportation of
hazardous waste.
82. Restrictions on Tenant's Use
----------------------------
Under no circumstances may the Demised Premises or any portion thereof be
used for residential purposes. Tenant understands that any such use shall
be a material default under the Lease and, notwithstanding anything herein
to the contrary, shall entitle Landlord to immediately send Tenant a notice
of cancellation of this Lease. Tenant further understands and acknowledges
that the Building is not, has not been and is not intended to be an Interim
Multiple Dwelling within the meaning of Section 280 et seq. of the New York
Multiple Dwelling Law or any other type of multiple dwelling.
28
83. Tax Escalation
--------------
The rent payable by Tenant during each lease year shall be adjusted in
accordance with this Article:
A) Definitions: For the purpose of this Article, the following
definitions shall apply:
1. The term "Base Tax Year" shall mean the fiscal year commencing
July 1, 1998 and ending June 30, 1999.
The term "Tax Year" shall mean any year commencing July 1st and
ending June 30th which covers any portion of the term of this
Lease.
2. The term "Percentage" shall mean 6%.
3. The term "Building" shall mean the land and building known as:
00-00 Xxxxx Xxxxxx, Xxxxxx, X.X. a/k/a 00-00 Xxxxxxx Xxxxxx,
Xxxxxx, N.Y.
4. The term "Real Estate Taxes" shall mean all taxes levied,
assessed or imposed at any time by any governmental authority
upon or against the Building and also any tax or assessment
levied, assessed or imposed at any time by any governmental
authority in connection with the receipt of income or rents from
the Building to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes upon or against the
Building.
B. Real Estate Taxes
1. In the event that the Real Estate Taxes payable during any Tax
Year subsequent to the Base Tax Year shall exceed the amount of
Real Estate Taxes payable during the Base Tax Year (whether
any such excess results from a higher tax rate or an increase
in the assessed valuation of the Building, or both), Tenant shall
pay to Landlord, as additional rent for such subsequent Tax Year,
an amount equal to The Percentage of the excess. After receipt of
the tax bills which indicate that Real Estate Taxes payable for
any subsequent Tax Year will exceed the Real Estate Taxes for the
Base Year, Landlord shall furnish to Tenant a statement of the
additional rent payable under this subdivision (B).
The percentage is defined as Tenant's portion of space in
building, specifically, 6%.
29
such statement shall set forth the Real Estate Taxes payable for such
subsequent Tax Year and shall show an amount equal to The Percentage
of the said excess, which amount shall be due from Tenant to Landlord,
as additional rent, within ten (10) business days after receipt of the
aforesaid statement; copies of the tax bills of the City of New York
shall be sufficient evidence of the amount due under this Article,
upon request.
2. The amount of Real Estate Taxes actually payable by Landlord during
the Base Tax Year shall be used in the computation of the amount of
additional rent payable under this subdivision, (B) until the amount
of the Real Estate Taxes payable during the Base Tax Year be reduced
by final determination of legal proceedings, settlement or otherwise.
In the event of such reduction, the reduced amount of such taxes shall
thereafter determine the amount of additional rent payable by Tenant
pursuant to this subdivision (B), the additional rent theretofore paid
or payable hereunder shall be recomputed on the basis of such
reduction.
3. If Landlord shall receive a refund of any portion of the Real Estate
Taxes payable during any Tax Year after the Base Tax Year, based upon
which Tenant shall have paid additional rent as provided in this
subdivision (B), then as a result of such a reduction of said Real
Estate Taxes by final determination of legal proceedings, settlement
or otherwise, Landlord shall, within ten (10) business days after
receiving the refund, pay to Tenant the Percentage of the refund, less
the percentage of reasonable expenses (including but not limited to
attorneys' and appraisers' fees) incurred in connection with any such
application or proceeding.
C. In no event shall the annual fixed rent under the Lease (exclusive of the
additional rents under this Article) be reduced.
D. All of the additional rent payments required under this Article shall be
appropriately prorated for any partial Tax Year occurring during the first
and last years of the term of this Lease. Landlord's failure to prepare and
deliver any of the foregoing tax bills, statements or bills of Landlord's
failure to make a demand, shall not in any way waive or cause the Landlord
to forfeit or surrender its rights to collect the additional rent required
to be paid under this Article.
30
E. In the event of a default by Tenant of any of the terms, covenants and
conditions of the Lease on the part of Tenant to be performed,
Landlord shall terminate the Lease as a result thereof, Landlord shall
have any and all of the rights and remedies available to Landlord
under the provisions of the Lease or otherwise with regard to the
collection of the additional rent required to be paid by Tenant under
the terms of this Article "83".
84. A. "Operating Expenses" shall consist of expenses that are directly
--------------------
attributable to the operation, maintenance, management and repair of
the Real Property. Tenant shall pay 6% of the increase in Operating
Expenses ("Expense Increase") incurred in connection with the Real
Property over the base year of the calendar year 1998 as and for
additional rent.
B. Operating Expenses shall exclude:
a. Capital Improvements.
b. The cost of any repair made by the Landlord because of the
total or partial destruction of the Real Property or the
condemnation of a portion of the Real Property.
C. Any costs which are reimbursed by insurance proceeds or any other
source.
d. Expenses of Landlord in curing its defaults or performing work
expressly provided for in the Lease to be borne at Landlord's
expense (including work for other tenant(s) in the Real
Property).
e. The cost of marketing and leasing the Real Property, including
leasing commissions, advertising and other marketing costs, and
related legal, accounting and other professional services;
costs to prepare space for occupancy by any tenants of the Real
Property and for renovating, repainting, decorating,
redecorating, planning, designing space for any tenants
(including Tenant) and the cost of any credits, allowances, or
other payments or rent waivers or concessions granted to any
tenant (including Tenant).
f. Landlord's cost of electricity and other services sold to
tenants, including retail tenants and the
31
parking garage operator, if any, which services are not standard
for the Premises, or are not available to Tenant without the
necessity of paying a separate additional charge.
g. Costs incurred by Landlord in exercising remedies against tenants
of the Real Property who violate terms of their leases.
h. Sums paid by Landlord for any indemnity, damages, fines, late
charges, penalties or interest for late payment, or to correct
violations of building codes or other laws or regulations
relative to the Real Property which are not Tenant's obligation
under the Lease.
i. Any costs incurred to remedy defects in the structure or systems
of the building located on the Real Property which are not
Tenant's obligations under the Lease.
j. Costs incurred to investigate and respond to hazardous materials
contamination, exposure or release (including hazardous
substances in the ground water or soil, provided the hazardous
material was not stored, used or disposed of by Tenant in
violation of law).
k. Any employee salaries and other compensation and/or health
benefits or other such benefits for the personnel of Landlord
above the level of building manager.
l. Costs of goods or services furnished by entities affiliated with
Landlord to the extent that such costs exceed the cost that would
have been incurred in an arm's length transaction with an
unrelated party.
m. Costs of Landlord's general overhead and general administrative
expenses (individual, partnership or corporate, as the case may
be), which costs would not be chargeable to operating expenses of
the Real Property under generally accepted accounting principles
consistently applied.
n. Payments of principal, interest, ground rent or any other
financing or refinancing costs on any mortgages, deeds of trust,
ground leases or other
32
encumbrances, whether secured or unsecured on the Real Property,
including any equipment, fixtures or improvements therein, or any
penalties or late charges relating thereto.
o. Depreciation and amortization of the building or any fixtures or
improvements located on the Real Property; and
C. Upon request, Landlord will provide accountant's breakdown of
operating costs compared against Base Year for any year in which an
additional charge is billed to Tenant.
D. Any additional rent charged may be used as an estimate for the next
year's xxxxxxxx and will be paid by Tenant in twelve (12) equal
installments together with all other rent charges. Any adjustments
will be made based upon the following year's actual costs.
E. If Tenant disputes figures provided by Landlord's accountant, Tenant,
at Tenant's sole cost, upon reasonable notice, may review the books
and records within thirty (30) days receipt of accountants'
certification of costs. All reviews shall take place at Landlord's
place of business during normal working hours. The books and records
shall be kept in accord with generally accepted accounting principles
consistently applied.
In no event shall any rent adjustment hereunder result in a decrease
in the fixed/minimum annual rent.
85. ICIP Abatement
--------------
The Landlord and Tenant agree to cooperate in an application for ICIP
Abatement of Taxes.
86. Capital Improvements
--------------------
In the event any new law, rule, ordinance or regulation takes effect after
the date hereof and requires the Landlord to do any work of a capital
nature in the Demise Premises and/or the building, the Tenant shall pay, in
equal monthly installments over the remainder of the lease term to the
Landlord, 1/6th of the cost multiplied by the remaining months under the
Lease divided by one hundred twenty (120). The monthly payments shall
commence within thirty (30) days after written demand together with a copy
of the applicable invoice as for additional rent.
33
87. Notices
-------
Supplementing the terms of Article 27 hereof, a copy of any notice by
Tenant to Owner shall be sent to:
Et-Al Management Corp.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
and to:
Xxxxxxx Xxxxxxx, Esq.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and a copy of any notice by Owner to Tenant shall also be sent to:
Coaxicom, Inc. (dba Community Telephone)
00-00 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, X.X. 00000
88. Lease Not Binding Unless Executed and Delivered
-----------------------------------------------
This lease shall not bind Owner unless and until it has been (i) signed and
delivered by Tenant; (ii) received and accepted by Owner; and (iii) then
countersigned and redelivered by Owner to Tenant. The execution and
delivery of this Lease by Tenant shall constitute its irrevocable offer to
enter into this Lease. The Owner warrants and represents, upon which
warranty and representation that he understands that the Tenant shall rely
in the execution of this Lease, that Owner has the full right and lawful
authority to execute this Lease for the term thereof.
At Tenant's option, lease shall not be binding and all deposits and all
advance payments will be returned to Tenant if space is not ready for
occupancy by August 1 due to Landlord's unexcusable delay. Landlord agrees
to make best efforts to provide space as soon as possible.
89. Tenant's Federal Tax I.D. Number
---------------------------------
Tenant states that its Federal Tax Identification Number (the "Number") is
00-000-0000. From time to time, upon Owner's request, Tenant shall confirm
in writing that the Number provided by Tenant is correct and, if it is
missing or incorrect, what the correct number is. Tenant shall indemnify
Owner from and against any and all liability for any claim, fine, penalty,
cost or expense (including attorneys' fees) paid, suffered or incurred by
reason of Tenant's failure to Comply with this Article.
34
90. Miscellaneous
-------------
A. No Offer.
This Lease is offered to signature by Tenant and it is understood that
this Lease shall not be binding upon Landlord unless and until
Landlord shall have executed and delivered a fully executed copy of
this Lease to Tenant.
B. Signatories.
If more than one person executes this Lease as Tenant, each of them
understands and hereby agrees that the obligations of each of them
under this Lease are and shall be joint and several, that the term
"Tenant" as used in this Lease shall mean and include each of them
jointly and severally and that the act of or notice from, or notice
or refund to, or the signature of, any one or more of them, with
respect to the tenancy and/or this Lease, including, but not limited
to any renewal, extension, expiration, termination or modification of
this Lease, shall be binding upon each and all of the persons
executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted or so given or received such notice
or refund or so signed.
C. Authority.
If Tenant is a corporation or partnership, each individual executing
this Lease on behalf of Tenant a hereby represents and warrants that
Tenant is a duly formed and validly existing entity qualified to do a
business in the State of New York and that Tenant has full right and
authority to execute and deliver this a Lease and that each person
signing on behalf of Tenant is authorized to do so.
D. Merger.
This Lease represents the entire understanding of the parties hereto
and all prior understandings or agreements between the parties are
merged in this agreement.
E. Pornographic Uses Prohibited.
Tenant agrees that the value of the Demised Premises and the
reputation of the Owner will be seriously injured if the premises are
used for any obscene or pornographic purposes or any sort of
commercial sex establishment or
35
for certain other purposes. Tenant agrees that Tenant will not bring
or permit any obscene or pornographic material on the premises and
shall not permit or conduct any obscene, nude or semi-nude live
performances on the premises, nor permit use of the premises for nude
modeling, rap sessions, or as a so-called "rubber goods shop", or as a
sex club of any sort, or as a "massage parlor", nor shall the Demised
Premises be used for erotic dancing, a night club or for the
preparation or serving of food or beverages. Tenant further agrees
that Tenant will not permit any of these uses by any sublessee
or assignee of the premises. This Article shall directly bind any
successors in interest to the Tenant. Tenant agrees that if, at any
time, Tenant violates any of the provisions of this Article, such
violation shall be deemed a breach of a substantial obligation of the
terms of this Lease and objectionable conduct. "Pornographic material"
is defined for purposes of this Article as any written or pictorial
matter with prurient appeal or any objects or instruments that are
primarily concerned with lewd or prurient sexual activity.
91. Left Intentionally Blank.
92. Rent Commencement. The sooner of January 1, 1999 or upon substantial
-----------------
completion of Tenant's installation. See Paragraph 40.
93. Left Intentionally Blank.
94. Left Intentionally Blank.
95. Left Intentionally Blank.
96. Building Services. building shall be operated with all services and common
-----------------
area maintenance as normally provided for similar office buildings in the
area during normal business hours (including HVAC, janitorial services,
electric current, etc.). Tenant shall have 24-hours access seven (7) days a
week except for freight elevator as indicated hereinabove. Building is
managed by Landlord.
97. Left Intentionally Blank.
98. Landlord covenants and agrees to reasonably maintain the building in a
neat, orderly, safe, and sanitary manner, including but not limited to,
cleaning and maintaining the common areas and exterior of the building, bag
and remove all garbage, snow and ice removal, pest and rodent extermination
for common areas.
36
99. Landlord has installed a central security system in the building with
electronic card entry. Landlord shall provide sufficient entry cards to
Tenant and Tenant's employees, not to exceed 10, at no charge to Tenant.
Additional cards can be purchased by Tenant at ten (10%)percent above
Landlord's cost. Landlord shall also provide to Tenant, upon Tenant's
request, security printouts and videotape, if any, at no charge to Tenant--
not to exceed three (3)times per year.
100. Landlord represents to the best of its knowledge that the Building
currently complies with the American Disabilities Act of 1990, and any
amendments or regulations promulgated thereunder or any related or similar
law (the "ADA"), and that throughout the term of this Lease Landlord shall
make any and all necessary repairs and alterations to the Building,
including the Demised Premises, required to comply with the ADA.
101. Left Blank Intentionally.
102 By executing this lease, Owner represents that as of the date hereof, it
has the resources to fulfill its obligations hereunder.
103 By executed this lease, Tenant represents that as of the date hereof, it
has the resources to full its obligations hereunder.
104. With the signing of the lease, Tenant shall pay first month's rent in the
amount of $11,759.83 and two month's security in the amount of $23,519.66
as agreed.
105. Landlord will furnish additional security at each entry door to Tenant's
space in the form of card swipe or keypad systems, the cost of which to be
shared equally by Landlord and Tenant.
a. Landlord agreed to give his "Best effort" to have a security guard in
place by 3/1/99. The landlord also agreed to position security cameras
at the front and rear entrance of the building (within a relative time
after lease commencement.)
106. The walls for the new offices will be gypsum board to slab for improved
acoustical privacy.
37
WITNESSES: OWNER: 00-00 XXXXX XXXXXX, LLC
/s/
_____________________________ BY: --------------------------
TENANT: COAXICOM, INC.
(dba COMMUNITY TELEPHONE)
/s/ /s/
_____________________________ BY: --------------------------
38
RIDER TO LEASES BETWEEN 00-00 XXXXX XXXXXX ASSOC., LANDLORD AND COAXICOM, INC.
(DBA COMMUNITY TELEPHONE), AS TENANTS TO BE ATTACHED TO LEASES FOR OFFICE 502
AND OFFICE 403.
It is hereby agreed that Paragraph 101 is deleted from both leases dated May 27,
1998 and March 27, 1997 for offices located at 00-00 Xxxxx Xxxxxx, Xxxx Xxxxxx
Xxxx.
00-00 XXXXX XXXXXX, LLC
/s/
BY: -------------------------
LANDLORD
COAXICOM, INC.
DBA COMMUNITY TELEPHONE
/s/
BY: -------------------------
TENANT
2
