AGREEMENT OF LEASE
made as
of this 10 day of April, 2010, by and between JQ1 ASSOCIATES, LLC, a New
York limited liability company, having its principal office at 000 Xxxxxxx
Xxxxxxxxxx, Xxxxxxx, Xxx Xxxx 00000, hereinafter referred to as “Landlord” and INTELLICHECK MOBILISA, INC.,
with offices located at 000 Xxxx Xxxxxx, Xxxx Xxxxxxxx, XX 00000,
hereinafter referred to as “Tenant”.
WITNESSETH: Landlord
and Tenant hereby covenant and agree as follows:
SPACE
1. Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord the space
consisting of Suite 202 substantially as shown on the rental plan initialed by
the parties and made part hereof as Exhibit 1 in
the building known as 000 Xxxxxxx Xxxxxxxxxx, Xxxxxxx, Xxx Xxxx,
00000 (the “Building”),
hereinafter referred to as the “Demised Premises”.
The parties agree that for all purposes of this lease the Demised Premises
consist of 9,233 rentable square feet. Tenant shall also be permitted
to use, on a non-exclusive basis, in common with other tenants at the Building,
the common facilities of the Building. Such use of such facilities shall be
subject to such reasonable rules, regulations and procedures governing the use
thereof as Landlord shall from time to time promulgate.
TERM
2. A. The
term of this lease (“Lease”) shall
commence on September 1, 2010, hereinafter referred to as the “Term Commencement
Date”, and shall terminate on March 31, 2018, hereinafter referred to as
the “Expiration
Date”, unless earlier terminated or extended as provided
herein.
B. If,
on the foregoing date specified for the Term Commencement Date, "Landlord's Initial
Construction" (as defined in Article 5 hereof) shall not be
"substantially completed" in accordance with Schedule A annexed
hereto, then the Term Commencement Date shall be postponed until the date on
which Landlord's Initial Construction shall be "substantially completed" and the
term of this Lease (hereinafter referred to as the "Demised Term") shall
be extended so that the Expiration Date shall be seven (7) years and seven (7)
months after the last day of the month in which the Term Commencement Date
occurs. "Substantially
completed" as used herein is defined to mean when the only items of
Landlord's Initial Construction to be completed are those which do not
materially interfere with Tenant's use and occupancy of the Demised
Premises. Should the Term Commencement Date be a date other than the
first day of the month, Tenant shall pay a pro rata portion of the rent from
such date to the first day of the following month.
C. Notwithstanding
anything to the contrary contained herein, Tenant shall have reasonable access
to the Demised Premises at least three (3) weeks prior to the Term Commencement
Date for the purpose of installing cable, equipment, furniture and fixtures and
for readying the Demised Premises for Tenant’s occupancy, provided that such
access does not interfere with or delay the implementation and completion of
Landlord’s Initial Construction. Said occupancy during such three (3)
week prior access period shall be subject to all rights and obligations of this
Lease except the obligation to pay rent, additional rent or other financial
obligations under the terms of the Lease.
RENT
3. A. Tenant
agrees to pay the base annual rental and electricity rate in equal monthly
installments in advance, on the first day of each calendar month during the
Demised Term at the office of Landlord, except that Tenant shall pay the first
monthly installment on execution hereof. Tenant shall pay the rent as
above and as hereinafter provided, without any set off or deduction
whatsoever. As used herein, the term “Lease Year” shall
mean each consecutive twelve (12) calendar month period, the first such period
commencing on the Rent Commencement Date (as hereinafter defined) and ending on
the day immediately preceding the first anniversary of the Rent Commencement
Date; provided, however, if the Rent Commencement Date shall be a date other
than the first day of a calendar month, then the first Lease Year shall commence
on the Rent Commencement Date and shall end on the last day of the month in
which the first anniversary of the Rent Commencement Date shall
occur. The “Rent Commencement
Date” shall be seven (7) months after the Term Commencement
Date.
B. The
base annual rental and electricity rate payable by Tenant shall be as set forth
below:
|
Total Base
|
Monthly Base
|
|||||||||||||||
|
Base Annual
|
Base Annual
|
Annual Rental and
|
Annual Rental and
|
|||||||||||||
|
Rental Rate (1)
|
Electric Rate (2)
|
Electricity Rate (1, 2)
|
Electricity Rate (1, 2)
|
|||||||||||||
|
Lease
Year 1
|
$ | 267,757.00 | $ | 30,930.55 | $ | 298,687.55 | $ | 24,890.63 | ||||||||
|
Lease
Year 2
|
275,789.71 | 30,930.55 | 306,720.26 | 25,560.02 | ||||||||||||
|
Lease
Year 3
|
284,063.40 | 30,930.55 | 314,993.95 | 26,249.50 | ||||||||||||
|
Lease
Year 4
|
292,585.30 | 30,930.55 | 323,515.85 | 26,959.65 | ||||||||||||
|
Lease
Year 5
|
301,362.86 | 30,930.55 | 332,293.41 | 27,691.12 | ||||||||||||
|
Lease
Year 6
|
310,403.75 | 30,930.55 | 341,334.30 | 28,444.52 | ||||||||||||
|
Lease
Year 7
|
319,715.86 | 30,930.55 | 350,646.41 | 29,220.53 | ||||||||||||
|
Renewal
Period:
|
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|
Lease
Year 8
|
$ | 329,307.34 | $ | 30,930.55 | $ | 360,237.89 | $ | 30,019.82 | ||||||||
|
Lease
Year 9
|
339,186.56 | 30,930.55 | 370,117.11 | 30,843.09 | ||||||||||||
|
Lease
Year 10
|
349,362.15 | 30,930.55 | 380,292.70 | 31,691.06 | ||||||||||||
|
Lease
Year 11
|
359,843.02 | 30,930.55 | 390,773.57 | 32,564.46 | ||||||||||||
|
Lease
Year 12
|
370,638.31 | 30,930.55 | 401,568.86 | 33,464.07 | ||||||||||||
|
(1)
|
Subject
to tax escalations pursuant to Article
11.
|
|
(2)
|
$30,930.55
included electric is subject to escalations pursuant to Schedule
C.
|
C. If
Tenant shall fail to pay when due any installment of base annual rent or any
payment of additional rent for a period of five (5) business days after such
installment or payment shall have become due, Tenant shall pay interest thereon
at the lesser rate of (i) four percent (4%) per annum in excess of the prime
interest rate of Citibank, N.A., as publicly announced from time to time or, if
Citibank, N.A. shall cease to exist or announce such rate, any similar rate
designated by Landlord which is publicly announced from time to time by any
other bank in the City of New York having combined capital and surplus in excess
of One Hundred Million and 00/100 Dollars ($100,000,000) ("Prime Rate"), or (ii)
the maximum rate of interest, if any, which Tenant may legally contract to pay,
from the date when such installment or payment shall have become due to the date
of the payment thereof, and such interest shall be deemed additional rent. In
addition, Tenant shall pay to Landlord a late fee in the amount of five percent
(5%) of such overdue amount to compensate Landlord for its administrative costs
associated with such failure to timely pay after such five (5) business day
grace period hereinabove provided. Such fee shall be deemed additional rent and
shall be payable immediately upon demand. This provision is in
addition to all other rights or remedies available to Landlord for nonpayment of
base annual rent or additional rent under this Lease and at law and in
equity.
D. Anything
contained herein to the contrary notwithstanding, Tenant shall be entitled to
occupy the Demised Premises without any obligations to pay base annual rent for
the first, second, third, fourth, sixth, eighth, and tenth months of the Demised
Term, commencing on the Term Commencement Date. Such occupancy shall
be subject to all of the other terms, covenants and conditions set forth in this
Lease.
USE
4. Tenant
shall use and occupy the Demised Premises only as executive and administrative
offices for its business and for no other purpose. Neither Tenant,
nor its successors, subtenants or assigns shall utilize the Demised Premises to
conduct a “boiler room” operation as such term is understood in the securities
business or a financial services business that is not a member of the New York
Stock Exchange.
LANDLORD’S
ALTERATIONS FOR TENANT
5. Landlord,
at its expense, will perform the work and make the installations as set forth in
the Plan and Schedule
A annexed hereto, which is sometimes herein referred to as the "Landlord's Initial
Construction". Tenant shall not alter, demolish or remove
Landlord's Initial Construction, or any part thereof, unless Tenant shall, prior
to the commencement thereof, obtain Landlord's written consent thereto, and pay
to Landlord a sum, fixed by Landlord, for the restoration
thereof.
UTILITIES
6. Landlord,
during the hours of 8:00 A.M. to 6:00 P.M. on weekdays and on Saturdays from
9:00 A.M. to 1:00 P.M. (“Working Hours”),
excluding legal holidays (presently, New Year’s Day, Xxxxxx Xxxxxx Xxxx’x
Birthday, President’s Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day), shall furnish the Demised Premises with
heat and air-conditioning (excluding supplemental air conditioning) in the
respective seasons, furnish elevator service to the Demised Premises and provide
the Demised Premises with electricity for lighting and usual office equipment
pursuant to Schedule
C.
LANDLORD'S
REPAIRS AND MAINTENANCE
7. Landlord,
at its expense, will make all repairs to and provide the maintenance for the
common areas and base systems of the Building as set forth in Schedule B, except
such repairs (whether structural or otherwise) and maintenance as may be
necessitated by the negligence, improper care or use of such premises and
facilities by Tenant, its agents, employees, licensees or invitees, which will
be made by Tenant at Tenant's expense as provided in Article 12 hereof. Tenant
acknowledges that Landlord shall have no obligation to perform its repair and
maintenance obligations hereunder, except during Landlord’s regular working
hours, except in the event of an emergency. If Tenant desires Landlord to
perform any such repair and maintenance obligations at any hours other than
Landlord’s regular working hours, Landlord shall use its reasonable efforts to
accommodate Tenant’s request, provided, however, that Tenant shall pay to
Landlord, as additional rent, any overtime charges incurred by Landlord as a
result thereof.
WATER
SUPPLY
8. Landlord,
at its expense, shall furnish hot and cold water for Building lavatory purposes
and cold water for pantry purposes. Landlord shall install in the
Demised Premises a hot water heater for Tenant’s pantry and
lavatories. Such hot water heater(s) shall be maintained and serviced
by or at Tenant’s expense.
PARKING
FIELD
9. Tenant
shall have the right to use forty-six (46) parking spaces, of which five (5)
shall be in the reserved executive area, for the parking of automobiles of
Tenant, its employees and invitees, in the parking area reserved for tenants of
the Building (hereinafter sometimes referred to as “Building Parking
Area”) subject to the Rules and Regulations now or hereafter adopted by
Landlord. Tenant shall not use nor permit any of its officers, agents
or employees to use any parking area other than the Building Parking Area, nor
use in excess of Tenant’s allotted number of spaces therein. Tenant
further acknowledges that a violation of the provisions of this Article 9 shall
constitute a material breach of this Lease.
DIRECTORY
10. Landlord
will furnish in the lobby of the Building a directory which will contain
listing(s) requested by Tenant not to exceed twenty (20)
listings. There will be a charge for the replacement of
listing(s).
TAXES
11. A. If
the Taxes which would be assessable to Landlord in any escalation year (without
taking into consideration any reductions or abatements granted to Landlord by
the taxing authorities by reason of vacancies or other hardships or provisions
of law) shall be increased above the Tax Base, then Tenant shall pay to Landlord
as additional rent for such escalation year a sum equal to 3.398% of such
increases in Taxes (based on the ratio of the Demised Premises area of 9,233
square feet to the Building Area of 271,740 square feet). The Tax
Base shall be the Taxes actually payable by Landlord (subject to adjustment as
provided in the next succeeding sentence) during the current tax year (School:
7/1/10-6/30/11 Town: 2010. Should the Taxes payable during the
current tax year (School: 7/1/10-6/30/11 Town: 2010) be reduced by final
determination of legal proceedings, settlement or otherwise, then the Tax Base
shall be correspondingly revised, the additional rent theretofore paid or
payable hereunder for all escalation years shall be recomputed on the basis of
such reduction, and Tenant shall pay to Landlord, as additional rent within ten
(10) days after being billed therefor, any deficiency between the amount of such
additional rent as theretofore computed and the amount thereof due as the result
of such recomputations. Any refund due to Tenant shall be debited by
Tenant’s proportionate share of all legal, experts, administrative and other
costs, fees or expenses incurred in connection with obtaining such
reduction. Should the Taxes payable by Landlord in any future tax
year be reduced by final determination of legal proceedings, settlement, or
otherwise prior to payment by Landlord of such Taxes, Tenant shall pay to
Landlord, as additional rent, Tenant’s proportionate share of all legal,
experts, administrative and other costs, fees or expenses incurred in connection
with obtaining such reduction.
DEFINITIONS
B. As
used in and for the purposes of this Article 11, the following definition shall
apply:
The term “Taxes” shall be
deemed to include all real estate taxes and assessments, special or otherwise
and sewer rents, upon or with respect to the Building and the land allocated to
it including all parking areas (hereinafter called the “Real
Property”). If, due to any change in the method of taxation,
any franchise, income, profit, sales, rental use and occupancy, or other tax
shall be substituted for, or levied against Landlord or any owner of the
Building or the Real Property in lieu of, any real estate taxes, assessments or
sewer rents upon or with respect to the Real Property, such tax shall be
included in the term Taxes for the purposes of this Article.
PROCEDURE
FOR INVOICING AND PAYMENT OF ADDITIONAL RENT
C. i. Landlord
shall render to Tenant a statement containing a computation of additional rent
due under this Article (“Landlord's
Statement”) at any time and from time to time as such becomes
due. Within fifteen (15) days after the rendition of Landlord's
Statement which shows additional rent to be payable, Tenant shall pay to
Landlord the amount of such additional rent. On the first day of each
month following rendition of each Landlord's Statement, Tenant shall pay to
Landlord, on account of the prospective additional rent, a sum equal to
one-twelfth (1/12th) of the annualized additional rent last paid by
Tenant.
ii. Following
each Landlord's Statement, Tenant shall be debited with any additional rent
shown on such Landlord's Statement to be payable, and credited with the
aggregate amount paid by Tenant in accordance with the provisions of subsection
11.C.i above on account of the potential additional rent.
iii. The
obligations of Landlord and Tenant under the provisions of this Article 11 with
respect to any additional rent for any Lease Year shall survive the expiration
or any sooner termination of the Demised Term.
iv. In
the event that Tenant challenges the amount of additional rent payable pursuant
to this Article 11, then, as a condition precedent to the submission of a
dispute as to such amount to judicial review, and pending the determination of
any dispute, Tenant shall promptly pay the additional rent as demanded by
Landlord. After such determination, any adjustment in the disputed
amount shall be made within thirty (30) days.
TENANT'S
REPAIRS
12. A. Except
for replacements and repairs to the base Building systems, Tenant shall be
responsible for all replacements and repairs within the Demised
Premises. In furtherance thereof, Tenant shall, throughout the
Demised Term, take good care of the Demised Premises and the fixtures and
appurtenances therein and, at Tenant's sole cost and expense, make all
non-structural repairs thereto, and, as required, non-structural replacements
thereof, as and when needed to preserve the same in good working order and
condition, reasonable wear and tear, obsolescence and damage from the elements,
fire or other casualty, excepted. Notwithstanding the foregoing, all
damage or injury to any part of the Building, or to the fixtures, equipment and
appurtenances thereof, whether requiring structural or non-structural repairs,
caused by or resulting from carelessness, omission, neglect or improper conduct
of Tenant, Tenant's servants, employees, invitees or licensees, shall be
repaired promptly by Tenant at its sole cost and expense, to the reasonable
satisfaction of Landlord. Tenant shall also repair all damage to the
Building caused by the moving of Tenant's fixtures, furniture or
equipment. Any repairs or replacements to be made by Tenant shall be
made with reasonable diligence, in a good and workmanlike manner and so as not
to unreasonably interfere with other tenants’ use and occupancy of the
Building.
B. Except
as provided in Article 25 hereof, there shall be no allowance to Tenant for a
diminution of rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord, Tenant or
others making any repairs, alterations, additions or improvements in or to any
portion of the Building or the Demised Premises, or in or to fixtures,
appurtenances, or equipment thereof, and no liability upon Landlord for failure
of Landlord or others to make any repairs, alterations, additions or
improvements in or to any portion of the Building or of the Demised Premises, or
in or to the fixtures, appurtenances or equipment thereof. Any
repairs which Tenant may be required to carry out pursuant to the terms hereof
may, at Landlord's option, be made by Landlord at the expense of Tenant, on the
basis of cost plus fifteen (15%) percent of such cost and expense for overhead
which shall be collectible as additional rent after the rendition of a xxxx or
statement therefore.
FLOOR
LOADING
13. The
emplacement of any equipment which will impose an evenly distributed floor load
in excess of 50 pounds per square foot shall be done only after written
permission is received from Landlord. Such permission will be granted
only after adequate proof is furnished by a professional engineer that such
floor loading will not endanger the structure.
FIXTURES
AND INSTALLATIONS
14. All
appurtenances, fixtures, improvements, additions and other property attached to
or built into the Demised Premises, whether by Landlord or Tenant or others, and
whether at Landlord's expense, or Tenant's expense, or the joint expense of
Landlord and Tenant, shall become and remain the property of Landlord, and shall
remain upon and be surrendered with the Demised Premises unless Landlord, by
notice to Tenant no later than twenty days prior to the date fixed as the
termination of this Lease, elects to have them removed by Tenant, in which
event, the same shall be removed from the premises by Tenant forthwith, at
Tenant's expense. Nothing in this Article shall be construed to prevent Tenant's
removal of trade fixtures, but upon removal of any such trade fixtures from the
premises or upon removal of other installations as may be required by Landlord,
Tenant shall immediately and at its expense, repair and restore the premises to
the condition existing prior to installation and repair any damage to the
Demised Premises or the Building due to such removal. All property
permitted or required to be removed by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Landlord, either be retained as Landlord's property or may be
removed from the premises at Tenant's expense. All the outside walls
of the Demised Premises including corridor walls and the outside entrance doors
to the Demised Premises, any balconies, terraces or roofs adjacent to the
Demised Premises, and any space in the Demised Premises used for shafts, stacks,
pipes, conduits, ducts or other building facilities, and the use thereof, as
well as access thereto in and through the Demised Premises for the purpose of
operation, maintenance, decoration and repair, are expressly reserved to
Landlord, and Landlord does not convey any rights to Tenant
therein. Notwithstanding the foregoing, Tenant shall enjoy full right
of access to the Demised Premises through the public entrances, public corridors
and public areas within the Building.
ALTERATIONS
15. A. Tenant
shall make no alterations, decorations, installations, additions or improvements
in or to the Demised Premises without Landlord's prior written consent (which
consent shall not be unreasonably withheld), and then only by contractors or
mechanics approved by Landlord and at such times and in such manner as Landlord
may from time to time designate. Tenant shall notify Landlord as to
when such work will commence, such notice to be given at least five (5) business
days prior to the commencement thereof. Landlord shall have the right
to make inspections of any such work being carried out by Tenant or on Tenant's
behalf at any reasonable time during the progress of such
work. Anything herein contained to the contrary notwithstanding, this
Article 15A. shall not apply to non-structural alterations and/or decorations
costing less than $10,000 in the aggregate.
B. All
installations or work done by Tenant shall be done in a good and workmanlike
manner and shall at all times comply with:
i. Laws, rules, orders and regulations
of governmental authorities having jurisdiction thereof.
ii. Rules and regulations of Landlord, as
promulgated from time to time.
iii. Plans and specifications prepared by and
at the expense of Tenant theretofore submitted to Landlord for its prior written
approval; no installations or work shall be undertaken, started or begun by
Tenant, its agents, servants or employees, until Landlord has approved such
plans and specifications and shall be subject to Landlord’s supervisory fee
charge of (a) five percent (5%) percent of the total value of non-mechanical and
non-electrical work to be performed and (b) ten percent (10%) percent of the
total value of mechanical and electrical work to be performed; and no amendments
or additions to such plans and specifications shall be made without the prior
written consent of Landlord, and shall be subject to Landlord's supervisory fee
charge of (a) five percent (5%) percent of the total value of non-mechanical and
non-electrical work to be performed and (b) ten (10%) percent of the total value
of mechanical and electrical work to be performed .
Tenant agrees that, other than for
(a) furniture delivery and installation, (b) information technology and telecom
wiring and installation and (c) business machine delivery and
installation, it will not, either directly or indirectly, use, suffer
or permit any contractors, sub-contractors and/or labor and/or materials if the
use of such contractors and/or labor and/or materials would or will create any
difficulty with other contractors and/or labor engaged by Tenant or Landlord or
others in the construction, maintenance and/or operation of the Building or any
part thereof. Tenant shall, before making any alterations, additions,
installations or improvements, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to Landlord and
Tenant agrees to carry and will cause Tenant's contractors and sub-contractors
material persons to carry such workmen's compensation, general liability,
personal and property damage insurance as Landlord may
require. Tenant agrees to obtain and deliver to Landlord, written and
unconditional waivers of mechanic's liens upon the real property in which the
Demised Premises are located, for all property in which the Demised Premises are
located, for all work, labor and services performed and materials furnished in
connection with such work after payment therefore, signed by all contractors,
sub-contractors, materialmen and laborers involved in such
work. Notwithstanding the foregoing, if any mechanic's lien is filed
against the Demised Premises, or the Building, for work claimed to have been
done for, or materials furnished to, Tenant, whether or not done pursuant to
this Article the same shall be discharged by Tenant within ten (10) business
days thereafter, at Tenant's expense, by payment or filing the bond required by
law. Failure to so discharge any mechanic’s lien shall be a material
default under this Lease.
C. Anything
contained herein to the contrary notwithstanding, Tenant shall make no
alterations, decorations, installations, additions or improvements in or to the
Demised Premises which shall in any way affect utility services or plumbing and
electrical lines. Moreover, Landlord shall not be deemed to have
acted unreasonably for withholding consent to any alterations, decorations,
installations, additions or improvements which: (i) involve or might affect any
structural or exterior element of the Building outside the Demised Premises or
the Building, or (ii) will require unusual expense to readapt the Demised
Premises to normal office use on the expiration of the Demised Term or increase
the cost of construction or of insurance or taxes on the Building or of the
services called for hereunder unless Tenant first gives assurances acceptable to
Landlord for payment of such increased cost and that such readaption will be
made prior to the Expiration Date without expense to Landlord.
REQUIREMENTS
OF LAW
16. A. Tenant,
at Tenant's cost, shall comply with all laws and governmental rules and
regulations arising out of or relating to Tenant’s use and occupancy of the
Demised Premises.
B. Tenant
shall not permit any “Hazardous Materials” (as defined below) in the Demised
Premises. The term “Hazardous Materials”
shall mean any biologically or chemically active or other toxic or hazardous
wastes, pollutants or substances, including, without limitation, asbestos, PCBs,
petroleum products and by-products, and substances defined or listed as
“hazardous substances” or “toxic substances” or similarly identified in or
pursuant to laws or governmental rules and regulations.
C. Tenant
shall indemnify, defend and hold Landlord harmless from or against any and all
claims, actions or proceedings arising from Tenant’s failure to comply with
Article 16.A and/or 16.B and all costs, expenses and liabilities incurred in
connection with any such claim or action or proceeding brought
thereon. Tenant, upon notice from Landlord, agrees that Tenant, at
Tenant's expense, will resist or defend such action or proceeding and will
employ counsel therefor reasonably satisfactory to Landlord. Tenant's
liability under this Lease extends to the acts and omissions of any subtenant,
and any agent, contractor, employee, invitee or licensee of Tenant or any
subtenant.
END
OF TERM
17.
A. Upon the expiration or
other termination of the Demised Term, Tenant shall quit and surrender to
Landlord the Demised Premises, broom clean, in good order and condition,
ordinary wear excepted, and Tenant shall remove all of its property (excluding
such property stated to remain the property of Landlord pursuant to Article 14),
and shall repair all damage to the Demised Premises or the Building occasioned
by such removal. Any property not removed from the premises shall be deemed
abandoned by Tenant and may be disposed of in any manner deemed appropriate by
Landlord at Tenant’s expense. Tenant expressly waives, for itself and
for any person claiming through or under Tenant, any rights which Tenant or any
such person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules and of any successor law of like import then in force, in
connection with any holdover summary proceedings which Landlord may institute to
enforce the foregoing provisions of this Article. Tenant's obligation
to observe or perform this covenant shall survive the expiration or other
termination of the Demised Term. If the last day of the Demised Term
or any renewal hereof falls on Sunday or a legal holiday, this Lease shall
expire on the business day immediately preceding.
B. Tenant
acknowledges that possession of the Demised Premises must be surrendered to
Landlord at the expiration or sooner termination of the Demised
Term. Tenant hereby agrees to indemnify and save Landlord harmless
against any and all costs, damages, claims, loss or liability resulting from
delay by Tenant in so surrendering the Demised Premises, including, without
limitation, any claims made by any succeeding tenant, founded on such
delay. The parties recognize and agree that the damage to Landlord
resulting from any failure by Tenant timely to surrender possession of the
Demised Premises as aforesaid will be extremely substantial, will exceed the
amount of monthly rent theretofore payable hereunder, and will be impossible of
accurate measurement. Tenant therefore agrees that if possession of
the Demised Premises is not surrendered to Landlord on or before the date of the
expiration or other termination of the Demised Term, time being of the essence
with respect thereto, then, in addition to any other remedies and/or damages
otherwise available to Landlord hereunder or at law, Tenant agrees to pay
Landlord, for each month and for each portion of any month during which Tenant
holds over in the Demised Premises after expiration or other termination of the
Demised Term, a sum equal to one and one half (1½) times the rent and additional
rent (inclusive of escalations) that was payable per month under this Lease
during the last month of the term thereof for the first two (2) months of such
holdover, and, thereafter, a sum equal to two (2) times the rent and additional
rent (inclusive of escalations) that was payable per month under this Lease
during the last month of the term thereof. Nothing contained herein shall be
construed to constitute Landlord's consent to Tenant remaining in possession of
the Demised Premises after the expiration or other termination of the Demised
Term. Landlord shall be entitled to pursue any action necessary to
recover immediate possession of the Demised Premises notwithstanding Tenant's
payment of the aforementioned sum. The aforesaid provisions of this
paragraph shall survive the expiration or sooner termination of the Demised
Term.
QUIET
ENJOYMENT
18. Landlord
covenants and agrees with Tenant that upon Tenant paying the rent and additional
rent and observing and performing all the terms, covenants and conditions on
Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the Demised Premises during the Demised Term without hindrance or
molestation by anyone claiming by or through Landlord, subject, nevertheless, to
the terms, covenants and conditions of this Lease including, but not limited to,
Article 23. Tenant acknowledges that Landlord is granting similar
quiet enjoyment to other tenants in the Building. Tenant covenants
and agrees not to do, suffer or permit anything that would breach any such
similar covenant.
SIGNS
19. No
signs may be put on or in the public corridors nor any window nor on the
exterior of the Building by Tenant. Any signs, company logo, or
lettering on the entry door, or at the entrance, to the Demised Premises must be
submitted to Landlord for approval before installation, which approval shall not
be unreasonably withheld.
RULES
AND REGULATIONS
20. Tenant
and Tenant's agents, employees, visitors, and licensees shall faithfully comply
with the Rules and Regulations set forth on Schedule D annexed
hereto and made part hereof, and with such further reasonable Rules and
Regulations as Landlord at any time may make and communicate in writing to
Tenant which, in Landlord's judgment, shall be necessary for the reputation,
safety, care or appearance of the Building and land allocated to it or the
preservation of good order therein, or the operation or maintenance of the
Building, its equipment and such land, or the more useful occupancy or the
comfort of the tenants or others in the Building. Landlord shall not be liable
to Tenant for the violation of any of said Rules and Regulations, or the breach
of any covenant or condition of any lease by any other tenant (including their
agents, guests, employees and invitees) in the Building. Rules and
Regulations shall be uniformly applied where possible.
ASSIGNMENT
AND SUBLETTING
21.
A. Tenant, for itself, its
successors, undertenants and assigns (all of the foregoing hereinafter referred
to as the “Tenant”), expressly covenants that it shall not assign, mortgage or
encumber this Lease, nor underlet the Demised Premises or any part thereof, or
license or permit the Demised Premises or any part thereof to be used by others,
without the prior written consent of Landlord in each instance and upon due
compliance with the provisions of this Article 21. Notwithstanding
anything in the preceding sentence to the contrary, Tenant shall have the right
to sublet all or a portion of the Demised Premises to any wholly owned
subsidiary, parent or wholly owned subsidiary of any parent of Tenant
(“Affiliate Transfer”), without Landlord’s prior approval or consent but with
prior written notice to Landlord.
B. Tenant
shall have no right to assign this Lease or sublet all or any portion of the
Demised Premises until Tenant has been in possession of the Demised Premises for
at least two (2) months.
C. Prior
to requesting the approval of Landlord to an assignment or subletting as
hereinafter provided, Tenant shall, by notice as provided in Article 35, advise
Landlord of all the terms, covenants and conditions of Tenant's proposed
sublease or assignment, including providing Landlord with a true, accurate and
complete copy of the agreement with the proposed assignee/subtenant, and shall
offer to Landlord the option: (i) to terminate the Lease as of the last day of
any calendar month of the term hereof, which day shall be prior to the effective
date of such proposed sublease or assignment, and after Landlord’s Acceptance
Period (as such phrase is hereinafter defined), and to vacate and surrender the
Demised Premises to Landlord; or (ii) to execute a sublease for the said space
with Landlord on the same terms and conditions as are contained in the proposed
sublease or assignment. Landlord shall have fifteen (15) business
days after the receipt of such offer to accept in writing either or neither of
such offers ("Landlord’s Acceptance
Period"). If Landlord shall fail to have delivered a written
acceptance of either such offer within Landlord’s Acceptance Period, then
Landlord shall be deemed to have rejected said offers.
D. Upon
Tenant's due compliance with the aforesaid provisions of this Article 21, and if
Landlord shall not accept either of Tenant’s aforesaid offers, Landlord agrees
not to unreasonably withhold or delay its consent to an assignment or
subletting, provided that Tenant is not then in default under this Lease and
that the proposed assignee or undertenant is financially responsible, of good
reputation and engaged in a business compatible with the business generally
carried on in the Building and that the proposed assignment or sublease would
not be inconsistent with any agreement previously made with any other tenant or
mortgagee, and further provided that such assignee or undertenant shall execute
and deliver to Landlord an assumption agreement wherein it agrees to perform all
the obligations of Tenant under this Lease in form appropriate for
recording.
E. No
assignment of this Lease or underletting of the Demised Premises shall release
or discharge Tenant hereunder from any of its obligations to be performed under
this Lease. Notwithstanding the foregoing sentence, Tenant
may request permission and consent from Landlord to assign this Lease and,
in connection with such assignment, to be released and discharged from any of
Tenant’s obligations to be performed under this Lease; provided, however, that
such assignment shall require the prior written consent of Landlord, which
consent shall be in Landlord’s sole discretion, Landlord shall have no
obligation to consent to such assignment, and the language of subparagraph “D.”
of this Article 21 that “Landlord agrees not to unreasonably withhold or delay
its consent to an assignment” shall not apply to Landlord's consideration of any
such a request by Tenant. The consent by Landlord to an assignment or
underletting shall not in any way be construed to relieve Tenant from obtaining
the express consent in writing of Landlord to any further assignment or
underletting.
F.
If Tenant is a corporation, Tenant may assign this Lease to any successor by
merger or consolidation, provided (i) that a copy of said assignment, in
recordable form, is delivered to Landlord containing a full assumption by the
assignee of all Tenant’s obligations hereunder and (ii) that such successor
shall have had, for each of its prior two (2) fiscal years, a net worth equal to
or greater than Tenant’s net worth. In the event that such successor
shall be unable to satisfy the provisions of sub-clause (ii) above, as a
condition to such assignment, such successor shall post additional security
equal to four (4) months of the then current total base annual rent and
additional rent.
G. Except
as expressly otherwise provided in Section 21.F hereof, the following shall be
deemed an "assignment" of this
Lease for the purposes of Article 21:
i. an assignment of a part
interest in this Lease;
ii. one or more sales or
transfers, by operation of law or otherwise, or creation of new stock or
issuance of additional shares of stock, resulting in a transfer of at least
fifty-one (51%) percent of the outstanding stock of Tenant, if Tenant is a
corporation, or of any corporate subtenant, except that the transfer of the
outstanding capital stock of any corporate tenant, or subtenant, shall be deemed
not to include the sale of such stock by persons or parties, other than those
deemed “affiliates” of Tenant within the meaning of Rule 144 promulgated under
the Securities Act of 1933, as amended, through the “over-the-counter market” or
through any recognized stock exchange;
iii. one or more sales or transfers, by
operation of law or otherwise, resulting in a transfer of at least fifty-one
(51%) percent of the total interests in Tenant, if Tenant is a partnership,
limited liability company or partnership, or in any partnership subtenant;
or
iv. Tenant's entering into a takeover
agreement affecting this Lease.
For the purposes of this Article 21,
a modification, amendment or extension of a sublease shall be deemed a
sublease.
H. If
Tenant assigns, sells, conveys, transfers, mortgages, pledges or sublets this
Lease, the Demised Premises, or any portion thereof in violation of this Article
21, or if the Demised Premises are occupied by anybody other than Tenant,
Landlord may collect rent from any assignee, sublessee or anyone who claims a
right to this Agreement or letting or who occupies the Demised Premises, and
Landlord shall apply the net amount collected to the annual rental herein
reserved; and no such collection shall be deemed a waiver by Landlord of the
covenants contained in this Article nor an acceptance by Landlord of any such
assignee, sublessee, claimant or occupant as Tenant, nor a release of Tenant
from the further performance by Tenant of the covenants contained
herein.
I.
Tenant shall pay to Landlord, as additional rent,
the sum of $1,000 to cover cost of Landlord's attorneys' fees and administration
costs in connection with any permitted subletting or assignment pursuant to this
Article 21.
LANDLORD'S
ACCESS TO PREMISES
22. A. Landlord
or Landlord's agents shall have the right to enter and/or pass through the
Demised Premises at all times, upon
reasonable prior notice by telephone to Tenant (except in the case of
emergency), to examine the same, to show them to mortgagees, ground lessors,
prospective purchasers or lessees or mortgagees of the Building, adjusters or
any other persons, and to make such repairs, improvements or additions as
Landlord may deem necessary or desirable and Landlord shall be allowed to take
all material into and upon and/or through said Demised Premises that may be
required therefor. During the nine (9) months prior to the expiration
of the Demised Term, or any renewal term, upon reasonable prior notice by
telephone to Tenant (except in the case of emergency), Landlord may exhibit the
Demised Premises to prospective tenants or purchasers at all reasonable hours
and without unreasonably interfering with Tenant's business. If
Tenant shall not be personally present to open and permit an entry into said
premises, at any time, when for any reason an entry therein shall be necessary
or permissible, Landlord or Landlord's agents may enter the same by a master
key, without rendering Landlord or such agent liable therefor (if during such
entry Landlord or Landlord's agents shall accord reasonable care to Tenant's
property). If during the last month of the Demised Term, Tenant shall
have removed all or substantially all of Tenant's property therefrom, Landlord
may immediately enter, alter, renovate or redecorate the Demised Premises
without limitation or abatement of rent, or incurring liability to Tenant for
any compensation and such act shall have no effect on this Lease or Tenant's
obligations hereunder.
B. Landlord
shall also have the right at any time to use, maintain and replace pipes and
conduits in and through the Demised Premises and to erect new pipes and conduits
therein, to change the arrangement and/or location of entrances or passageways,
doors and doorways, and corridors, elevators, stairs, toilets or other public
parts of the Building, provided, however, that Landlord shall make no change in
the arrangement and/or location of entrances or passageways or other public
parts of the Building which will adversely affect in any material manner
Tenant's use and enjoyment of the Demised Premises unless required by law or
governmental authority. Landlord shall also have the right, at any
time, to name the Building, to display appropriate signs and/or lettering on any
or all entrances to the Building, and to change the name, number or designation
by which the Building is commonly known.
C. Neither
this Lease nor any use by Tenant shall give Tenant any right or easement to the
use of any door or passage or concourse connecting with any other building or to
any public conveniences, and the use of such doors and passages and concourse
and of such conveniences may be regulated and/or discontinued at any time and
from time to time by Landlord without notice to Tenant.
D. The
exercise by Landlord or its agents of any right reserved to Landlord in this
Article shall not constitute an actual or constructive eviction, in whole or in
part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Landlord, or its agents, or upon any lessor under any ground or underlying
lease, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
SUBORDINATION
23.
A. This Lease
is subject and subordinate in all respects to all ground leases and/or
underlying leases and to all mortgages which may now or hereafter be placed on
or affect such leases and/or the real property of which the Demised Premises
form a part, or any part or parts of such real property, and/or Landlord's
interest or estate therein, and to each advance made and/or hereafter to be made
under any such mortgages, and to all renewals, modifications, consolidations,
replacements and extensions thereof and all substitutions
therefor. This subsection shall be self-operative and no further
instrument of subordination shall be required. In confirmation of
such subordination, Tenant shall execute and deliver promptly any certificate
that Landlord and/or any mortgagee and/or the lessor under any ground or
underlying lease and/or their respective assigns, and/ or successors in interest
may request.
B. Without
limitation of any of the provisions of this Lease, in the event that any
mortgagee or its assigns shall succeed to the interest of Landlord or of any
successor-Landlord and/or shall have become lessee under a new ground or
underlying lease, then, at the option of such mortgagee, this Lease shall
nevertheless continue in full force and effect and Tenant shall and does hereby
agree to attorn to such mortgagee or its assigns and to recognize such mortgagee
or its respective assigns as its Landlord.
C. Tenant
shall, at any time and from time to time upon not less than five (5) business
days' prior notice by Landlord, execute, acknowledge and deliver to Landlord a
statement in writing certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), and the dates to which
the rent, additional rent and other charges have been paid in advance, if any,
and stating whether or not to the best knowledge of the signer of such
certificate Landlord is in default in performance of any covenant, agreement,
term, provision or condition contained in this Lease and, if so, specifying each
such default of which the signer may have knowledge, it being intended that any
such statement delivered pursuant hereto may be relied upon by any prospective
purchaser or lessee of said real property or any interest or estate therein, any
mortgagee or prospective mortgagee thereof or any prospective assignee of any
mortgage thereof. If, in connection with obtaining financing or
refinancing for the Building and the land allocated to it, a banking, insurance
or other recognized institutional lender shall request reasonable modifications
in this Lease as a condition to such financing, Tenant will not unreasonably
withhold, condition, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or materially
adversely affect the leasehold interest hereby created. Failure by
Tenant to comply with this Article 23.C shall be a material default under this
Lease.
D. Landlord
shall use commercially reasonable efforts to obtain an agreement from the holder
of any mortgage now or hereafter encumbering the Building, in such holder’s
standard form, in favor of Tenant, providing in substance that so long as Tenant
is not in default under the terms of this Lease beyond any applicable notice and
cure periods, the right of possession of Tenant to the Demised Premises shall
not be affected or disturbed by such holder in the exercise of any of its rights
under the mortgage or any note secured thereby, and any sale of the Building
pursuant to the exercise of any rights and remedies under the mortgage or
otherwise shall be made subject to Tenant’s right of possession under this
Lease. Landlord shall incur no liability, nor shall this Lease or the
obligations of Tenant hereunder be affected in any manner, in the event Landlord
shall be unable to obtain a Non-Disturbance Agreement from the holder of any
mortgage in favor of Tenant. Furthermore, Landlord shall not be
required to pay any consideration or to commence any action or proceeding in
order to obtain any Non-Disturbance Agreement in favor of Tenant
PROPERTY
LOSS, DAMAGE, REIMBURSEMENT
24. A. Landlord
or its agents shall not be liable for any damage to property of Tenant or of
others entrusted to employees of the Building, nor for the loss of or damage to
any property of Tenant by theft or otherwise. Landlord or its agents shall not
be liable for any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, electrical disturbance,
water, rain or snow or leaks from any part of the Building or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature, unless
caused by or due to the negligence of Landlord, its agents, servants or
employees; nor shall Landlord or its agents be liable for any such damage caused
by other tenants or persons in the Building or caused by operations in
construction of any private, public or quasi public work; nor shall Landlord be
liable for any latent defect in the Demised Premises or in the
Building. If at any time any windows of the Demised Premises are
temporarily closed or darkened incident to or for the purpose of repairs,
replacements, maintenance and/or cleaning in, on, to or about the Building or
any part or parts thereof, Landlord shall not be liable for any damage Tenant
may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement of rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction. Tenant shall
reimburse and compensate Landlord as additional rent for all expenditures made
by, or damages or fines sustained or incurred by Landlord due to non-performance
or non-compliance with or breach or failure to observe any term, covenant or
condition of this Lease upon Tenant's part to be kept, observed, performed or
complied with. Tenant shall give immediate notice to Landlord in case
of fire or accidents in the Demised Premises or in the Building or of defects
therein or in any fixtures or equipment.
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TENANT'S
INDEMNITY
B. Tenant
shall indemnify and save harmless Landlord against and from any and all claims
by and on behalf of any person or persons, firm or firms, corporation or
corporations arising from the conduct or management of or from any work or thing
whatsoever done (other than by Landlord or its contractors or the agents or
employees of either) in and on the Demised Premises during the Demised Term and
during the period of time, if any, prior to the Term Commencement
Date that Tenant may have been given access to the Demised Premises for the
purpose of making installations, and will further indemnify and save harmless
Landlord against and from any and all claims arising from any condition of the
Demised Premises due to or arising from any act or omission or negligence of
Tenant or any of its agents, contractors, servants, employees, licensees or
invitees, and against and from all costs, expenses and liabilities incurred in
connection with any such claim or claims or action or proceeding brought
thereon; and in case any action or proceeding be brought against Landlord by
reason of any such claim, Tenant, upon notice from Landlord, agrees that Tenant,
at Tenant's expense, will resist or defend such action or proceeding and will
employ counsel therefor reasonably satisfactory to Landlord. Tenant's
liability under this Lease extends to the acts and omissions of any subtenant,
and any agent, contractor, employee, invitee or licensee of any
subtenant.
DESTRUCTION-FIRE
OR OTHER CASUALTY
25. If
the Demised Premises shall be damaged by fire or other casualty and if Tenant
shall give prompt notice to Landlord of such damage, Landlord, at Landlord's
expense, shall repair such damage. However, Landlord shall have no
obligation to repair any damage to, or to replace, Tenant's personal property or
any other property or effects of Tenant, including (without limitation)
furnishings and equipment of Tenant or its employees, agents and
clients. If the entire Demised Premises shall be rendered
untenantable by reason of any such damage, the rent shall xxxxx for the period
from the date of such damage to the date when such damage shall have been
repaired, and if only a part of the Demised Premises shall be so rendered
untenantable, the rent shall xxxxx for such period in the proportion which the
area of the part of the Demised Premises so rendered untenantable bears to the
total area of the Demised Premises. However, if prior to the date
when all of such damage shall have been repaired any part of the Demised
Premises so damaged shall be rendered tenantable and shall be used or occupied
by Tenant or any person or persons claiming through or under Tenant, then the
amount by which the rent shall xxxxx shall be equitably apportioned for the
period from the date of any such use or occupancy to the date when all such
damage shall have been repaired. Tenant hereby expressly waives the
provisions of Section 227 of the New York Real Property Law, and of any
successor law of like import then in force, and Tenant agrees that the
provisions of this Article shall govern and control in lieu
thereof. Notwithstanding the foregoing provisions of this Article,
if, prior to or during the Demised Term, (i) the Demised Premises shall be
totally damaged or rendered wholly untenantable by fire or other casualty, and
if Landlord shall decide not to restore the Demised Premises, or (ii) the
Building shall be so damaged by fire or other casualty that, in Landlord's
opinion, substantial alteration, demolition, or reconstruction of the
Building shall be required (whether or not the Demised Premises shall be damaged
or rendered untenantable), then, in any of such events, Landlord at Landlord's
option, may give to Tenant, within sixty (60) days after such fire or other
casualty, a thirty (30) days' notice of termination of this Lease and, in the
event such notice is given, this Lease and the Demised Term shall come to an end
and expire (whether or not said term shall have commenced) upon the expiration
of said thirty (30) days with the same effect as if the date of expiration of
said thirty (30) days were the Expiration Date, the rent shall be apportioned as
of such date and any prepaid portion of rent for any period after such date
shall be refunded by Landlord to Tenant.
SUBROGATION
26. Each
of the parties hereto and their successors or assigns hereby waives any and all
rights of action for negligence against the other party hereto which may
hereafter arise for damage to the premises or to property therein resulting from
any fire or other casualty of the kind covered by standard fire insurance
policies with extended coverage, regardless of whether or not, or in what
amounts, such insurance is now or hereafter carried by the parties hereto, or
either of them. The foregoing release and waiver shall be in force
only if both releasors' insurance policies contain a clause providing that such
a release or waiver shall not invalidate the insurance and also provided that
such a policy can be obtained without additional premiums. Both parties agree to
use their best efforts to obtain and maintain a waiver of subrogation from their
respective carriers if they are insured.
EMINENT
DOMAIN
27. A. In
the event that the whole of the Demised Premises shall be lawfully condemned or
taken in any manner for any public or quasi-public use, this Lease and the term
and estate hereby granted shall forthwith cease and terminate as of the date of
vesting of title. In the event that only one part of the Demised
Premises shall be so condemned or taken, then, effective as of the date of
vesting of title, the rent hereunder shall be abated in an amount thereof
apportioned according to the area of the Demised Premises so condemned or
taken. In the event that only a part of the Building shall be so
condemned or taken, then (i) Landlord (whether or not the Demised Premises be
affected) may, at its option, terminate this Lease and the term and estate
hereby granted as of the date of such vesting of title by notifying Tenant in
writing of such termination within 60 days following the date on which Landlord
shall have received notice of vesting of title, and (ii) if such condemnation or
taking shall be of a substantial part of the Demised Premises or of a
substantial part of the means of access thereto, Tenant shall have the right, by
delivery of notice in writing to Landlord within 60 days following the date on
which Tenant shall have received notice of vesting of title, to terminate this
Lease and the term and estate hereby granted as of the date of vesting of title
or (iii) if neither Landlord nor Tenant elects to terminate this Lease, as
aforesaid, this Lease shall be and remain unaffected by such condemnation or
taking, except that the rent shall be abated to the extent, if any, hereinabove
provided in this Article 27. In the event that only a part of the
Demised Premises shall be so condemned or taken and this Lease and the term and
estate hereby granted are not terminated as hereinbefore provided, Landlord
will, at its expense, restore the remaining portion of the Demised Premises as
nearly as practicable to the same condition as it was in prior to such
condemnation or taking.
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B. In
the event of a termination in any of the cases hereinabove provided, this Lease
and the term and estate granted shall expire as of the date of such termination
with the same effect as if that were the date hereinbefore set for the
expiration of the Demised Term, and the rent hereunder shall be apportioned as
of such date.
C. In
the event of any condemnation or taking hereinabove mentioned of all or a part
of the Building, Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in Tenant, and Tenant hereby expressly assigns to Landlord
any and all right, title and interest of Tenant now or hereafter arising in or
to any such award or any part thereof, and Tenant shall be entitled to receive
no part of such award, except that Tenant may file a claim for any taking of
removable fixtures owned by Tenant and for moving expenses incurred by
Tenant.
It is expressly understood and
agreed that the provisions of this Article 27 shall not be applicable to any
condemnation or taking for governmental occupancy for a limited
period.
CERTIFICATE
OF OCCUPANCY
28. Tenant
will not at any time use or occupy the Demised Premises in violation of the
certificate of occupancy (temporary or permanent) issued for the Building or
portion thereof of which the Demised Premises form a part.
DEFAULT
29. A. Upon
the occurrence at any time prior to or during the Demised Term, of any one or
more of the following events (referred to as “Events of
Default”):
i. if Tenant shall default
in the payment when due of any installment of rent or in the payment when due of
any additional rent, and such default shall continue for a period of five (5)
business days after notice by Landlord to Tenant of such default;
or
ii. if Tenant shall default in
the observance or performance of any term, covenant or condition of this Lease
on Tenant's part to be observed or performed (other than the covenants for the
payment of rent and additional rent) and Tenant shall fail to remedy such
default within ten (10) days after notice by Landlord to Tenant of such default,
or if such default is of such a nature that it cannot be completely remedied
within said period of ten (10) days and Tenant shall not commence within said
period of ten (10) days, or shall not thereafter diligently prosecute to
completion, all steps necessary to remedy such default; or
iii. if Tenant or Tenant's guarantor
hereunder (if any) shall file a voluntary petition in bankruptcy or insolvency,
or shall be adjudicated a bankrupt or become insolvent, or shall file any
petition or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, or shall make an assignment for the
benefit of creditors or shall seek or consent to or acquiesce in the appointment
of any trustee, receiver or liquidator of Tenant or of all or any part of
Tenant's property; or
iv. if, within thirty (30) days after
the commencement of any proceeding against Tenant, whether by the filing of a
petition or otherwise, seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or other present or future applicable federal,
state or other statute or law, such proceeding shall not have been dismissed, or
if, within thirty (30) days after the appointment of any trustee, receiver or
liquidator of Tenant, or of all or any part of Tenant's property, without the
consent or acquiescence of Tenant, such appointment shall not have been vacated
or otherwise discharged, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property pursuant to which the Demised
Premises shall be taken or occupied or attempted to be taken or occupied;
or
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v. if Tenant shall default in the
observance or performance of any term, covenant or condition on Tenant's part to
be observed or performed under any other lease with Landlord of space in the
Building and such default shall continue beyond any grace period set forth in
such other lease for the remedying of such default; or
vi. if the entire Demised Premises
shall become vacant, deserted or abandoned; or
vii. if Tenant's interest in this Lease shall
devolve upon or pass to any person, whether by operation of law or otherwise,
except as expressly permitted under Article 21;
then,
upon the occurrence, at any time prior to or during the Demised Term, of any one
or more of such Events of Default, Landlord, at any time thereafter, at
Landlord's option, may give to Tenant a five (5) business days' notice of
termination of this Lease and, in the event such notice is given, this Lease and
the Demised Term shall come to an end and expire (whether or not said term shall
have commenced) upon the expiration of said five (5) business days with the same
effect as if the date of expiration of said five (5) business days were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 30.
B. If,
at any time, (i) Tenant shall be comprised of two (2) or more persons, or (ii)
Tenant's obligations under this Lease shall have been guaranteed by any person
other than Tenant, or (iii) Tenant's interest in this Lease shall have been
assigned, the word “Tenant”, as used in subsection (iii) and (iv) of Article
29.A, shall be deemed to mean any one or more of the persons primarily or
secondarily liable for Tenant's obligations under this Lease. Any
monies received by Landlord from or on behalf of Tenant during the pendency of
any proceeding of the types referred to in said subsections (iii) and (iv) shall
be deemed paid as compensation for the use and occupation of the Demised
Premises and the acceptance of any such compensation by Landlord shall not be
deemed an acceptance of rent or a waiver on the part of Landlord of any rights
under Article 29.A.
REMEDIES
30. A. If
Tenant shall default in the payment when due of any installment of rent or in
the payment when due of any additional rent and such default shall continue for
a period of five (5) business days after notice by Landlord to Tenant of such
default, or if this Lease and the Demised Term shall expire and come to an end
as provided in Article 29:
i. Landlord and its agents
and servants may immediately, or at any time after such default or after the
date upon which this Lease and the Demised Term shall expire and come to an end,
re-enter the Demised Premises or any part thereof, without notice, either by
summary proceedings or by any other applicable action or proceeding, or by force
or otherwise (without being liable to indictment, prosecution or damages
therefor), and may repossess the Demised Premises and dispossess Tenant and any
other persons from the Demised Premises and remove any and all of their property
and effects from the Demised Premises; and
ii. Landlord, at Landlord's
option, may relet the whole or any part or parts of the Demised Premises from
time to time, either in the name of Landlord or otherwise, to such tenant or
tenants, for such term or terms ending before, on or after the Expiration Date,
at such rental or rentals and upon such other conditions, which may include
concessions and free rent periods, as Landlord, in its sole discretion, may
determine. Landlord shall have no obligation to relet the Demised
Premises or any part thereof and shall in no event be liable for refusal or
failure to relet the Demised Premises or any part thereof, or, in the event of
any such reletting, for refusal or failure to collect any rent due upon any such
reletting, and no such refusal or failure shall operate to relieve Tenant of any
liability under this Lease or otherwise to affect any such
liability. Landlord, at Landlord's option, may make such repairs,
replacements, alterations, additions, improvements, decorations and other
physical changes in and to the Demised Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any such liability.
B. Tenant,
on its own behalf and on behalf of all persons claiming through or under Tenant,
including all creditors, does hereby waive any and all rights which Tenant and
all such persons might otherwise have under any present or future law to redeem
the Demised Premises, or to re-enter or repossess the Demised Premises, or to
restore the operation of this Lease, after (i) Tenant shall have been
dispossessed by a judgment or by warrant of any court or judge, or (ii) any
re-entry by Landlord, or (iii) any expiration or termination of this Lease and
the Demised Term, whether such dispossess, re-entry, expiration or termination
shall be by operation of law or pursuant to the provisions of this
Lease. In the event of a breach or threatened breach by Tenant, or
any persons claiming through or under Tenant, of any term, covenant or condition
of this Lease on Tenant's part to be observed or performed, Landlord shall have
the right to enjoin such breach and the right to invoke any other remedy allowed
by law or in equity as if re-entry, summary proceedings and other special
remedies were not provided in this Lease for such breach. The rights to invoke
the remedies hereinbefore set forth are cumulative and shall not preclude
Landlord from invoking any other remedy allowed at law or in
equity.
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DAMAGES
31. A. If
this Lease and the Demised Term shall expire and come to an end as provided in
Article 29 or by or under any summary proceeding or any other action or
proceeding, or if Landlord shall re-enter the Demised Premises as provided in
Article 30 or by or under any summary proceeding or any other action or
proceeding, then, in any of said events:
i. Tenant shall pay to
Landlord all rent, additional rent and other charges payable under this Lease by
Tenant to Landlord to the date upon which this Lease and the Demised Term shall
have expired and come to an end or to the date of re-entry upon the Demised
Premises by Landlord, as the case may be; and
ii. Tenant shall also be liable
for and shall pay to Landlord, as damages, any deficiency (referred to as “Deficiency”) between
the rent and additional rent reserved in this Lease for the period which
otherwise would have constituted the unexpired portion of the Demised Term and
the net amount, if any, of rents collected under any reletting effected pursuant
to the provisions of Section 30.A for any part of such period (first deducting
from the rents collected under any such reletting all of Landlord's expenses in
connection with the termination of this Lease or Landlord's re-entry upon the
Demised Premises and such reletting including, but not limited to, all
repossession costs, brokerage commissions, legal expenses, attorney's fees,
alteration costs and other expenses of preparing the Demised Premises for such
reletting). Any such Deficiency shall be paid in monthly installments
by Tenant on the days specified in this Lease for payment of installments of
rent. Landlord shall be entitled to recover from Tenant each monthly
Deficiency as the same shall arise, and no suit to collect the amount of the
Deficiency for any month shall prejudice Landlord's right to collect the
Deficiency for any subsequent month by a similar proceeding; and
iii. At any time after the Demised Term
shall have expired and come to an end or Landlord shall have re-entered upon the
Demised Premises, as the case may be, whether or not Landlord shall have
collected any monthly Deficiencies as aforesaid, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, as and for
liquidated and agreed final damages, a sum equal to the amount by which the rent
and additional rent reserved in this Lease for the period which otherwise would
have constituted the unexpired portion of the Demised Term exceeds the then fair
and reasonable rental value of the Demised Premises for the same period, both
discounted to present worth at the rate of four (4%) percent per
annum. If, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the Demised Premises, or any part thereof,
shall have been relet by Landlord for the period which otherwise would have
constituted the unexpired portion of the Demised Term, or any part thereof, the
amount of rent reserved upon such reletting shall be deemed, prima facie, to be
the fair and reasonable rental value for the part or the whole of the Demised
Premises so relet during the term of the reletting.
B. If
the Demised Premises, or any part thereof, shall be relet together with other
space in the Building, the rents collected or reserved under any such reletting
and the expenses of any such reletting shall be equitably apportioned for the
purposes of this Article 31. Tenant shall in no event be entitled to
any rents collected or payable under any reletting, whether or not such rents
shall exceed the rent reserved in this Lease. Solely for the purposes
of this Article, the term rent as used in Article 31.A shall mean the rent in
effect immediately prior to the date upon which this Lease and the Demised Term
shall have expired and come to an end, or the date of re-entry upon the Demised
Premises by Landlord, as the case may be, plus any additional rent payable
pursuant to the provisions of Article 11 for the Lease Year immediately
preceding such event. Nothing contained in Articles 29 and 30 or this
Article shall be deemed to limit or preclude the recovery by Landlord from
Tenant of the maximum amount allowed to be obtained as damages by any statute or
rule of law, or of any sums or damages to which Landlord may be entitled in
addition to the damages set forth in Section 31.A.
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FEES
AND EXPENSES
32. If
Tenant shall default in the performance of any covenant on Tenant's part to be
performed in this Lease contained, Landlord may immediately, or at any time
thereafter, without notice, perform the same for the account of
Tenant. If Landlord at any time is compelled to pay or elects to pay
any sum of money, or do any act which will require the payment of any sum of
money, by reason of the failure of Tenant to comply with any provision hereof,
or, if Landlord is compelled to or does incur any expense including reasonable
attorneys' fees, instituting, prosecuting and/or defending any action or
proceeding instituted by reason of any default of Tenant hereunder, the sum or
sums so paid by Landlord with all interest, costs and damages, shall be deemed
to be additional rent hereunder and shall be due from Tenant to Landlord on the
first day of the month following the incurring of such respective expenses, or
at Landlord's option on the first day of any subsequent month. In the
event that Landlord shall institute any such action or proceeding by reason of a
default by Tenant hereunder, and Tenant shall thereafter cure such default
before judgment is entered in such action or proceeding, the sum of $1,000 shall
immediately become due and payable from Tenant to Landlord as and for liquidated
damages on account of Landlord's attorneys' fees and other costs and expenses in
connection therewith (said sum not to be deemed to be, or construed as, a
limitation on Landlord's right to obtain reasonable attorneys' fees in a greater
amount where such default is not so cured or where expenses were incurred prior
to curing). Any sum of money (other than rent) accruing from Tenant
to Landlord pursuant to any provision of this Lease, whether prior to or after
the Term Commencement Date, may, at Landlord's option, be deemed additional
rent, and Landlord shall have the same remedies for Tenant's failure to pay any
item of additional rent when due as for Tenant's failure to pay any installment
of rent when due. Tenant’s obligations under this Article shall
survive the expiration or sooner termination of the Demised Term.
NO
WAIVER
33. A. No
act or thing done by Landlord or Landlord's agents during the term hereby
demised shall be deemed an acceptance of a surrender of said Demised Premises,
and no agreement to accept such surrender shall be valid unless in writing
signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of said Demised Premises prior to the
termination of this Lease. The delivery of keys to any employee of
Landlord or of Landlord's agents shall not operate as a termination of this
Lease or a surrender of the Demised Premises. In the event of Tenant
at any time desiring to have Landlord underlet the Demised Premises for Tenant's
account, Landlord or Landlord's agents are authorized to receive said keys for
such purposes without releasing Tenant from any of the obligations under this
Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such
underletting. The failure of Landlord to seek redress for violation
of, or to insist upon the strict performance of, any covenant or condition of
this Lease, or any of the Rules and Regulations annexed hereto and made a part
hereof, or hereafter adopted by Landlord, shall not prevent a subsequent act,
which would have originally constituted a violation, from having all the force
and effect of an original violation. The receipt by Landlord of rent
with knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the
Rules and Regulations annexed hereto and made a part hereof, or hereafter
adopted, against Tenant and/or any other tenant in the Building shall not be
deemed a waiver of any such Rules and Regulations. No provision of
this Lease shall be deemed to have been waived by Landlord, unless such waiver
be in writing signed by Landlord. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent then owing
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment as rent be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy in this Lease
provided.
B. Landlord's
failure to render a Landlord's Statement with respect to any Lease Year per
Article 11 or Schedule
C shall not prejudice Landlord's right to render a Landlord's Statement
with respect to any subsequent Lease Year. The obligations of
Landlord and Tenant under the provisions of Article 11 or Schedule C with
respect to any additional rent for any Lease Year shall survive the expiration
or any sooner termination of the Demised Term.
WAIVER
OF TRIAL BY JURY
34. To
the extent such waiver is permitted by law, Landlord and Tenant hereby waive
trial by jury in any action, proceeding or counterclaim brought by Landlord or
Tenant against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of landlord and tenant, the use or
occupancy of the Demised Premises by Tenant or any person claiming through or
under Tenant, any claim of injury or damage, and any emergency or other
statutory remedy. The provisions of the foregoing sentence shall
survive the expiration or any sooner termination of the Demised
Term. If Landlord commences any summary proceeding for nonpayment of
rent or otherwise to recover possession of the Demised Premises, Tenant agrees
not to interpose any counterclaim of any nature or description in any such
proceeding, except if mandatory or compulsory.
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BILLS
AND NOTICES
35. Except
as otherwise expressly provided in this Lease, any bills, statements, notices,
demands, requests or other communications given or required to be given under
this Lease shall be effective only if rendered or given in writing, sent by
registered or certified mail (return receipt requested optional), or by Federal
Express, UPS, or any similar national overnight delivery service, addressed (A)
to Tenant (i) at Tenant's address set forth in this Lease if mailed prior to
Tenant's taking possession of the Demised Premises, or (ii) at the Building if
mailed subsequent to Tenant's taking possession of the Demised Premises, or
(iii) at any place where Tenant or any agent or employee of Tenant may be found
if mailed subsequent to Tenant's vacating, deserting, abandoning or surrendering
the Demised Premises, or (B) to Landlord at Landlord's address set forth in this
Lease, or (C) addressed to such other address as either Landlord or Tenant may
designate as its new address for such purpose by notice given to the other in
accordance with the provisions of this Article. Any such xxxx,
statement, notice, demand, request or other communication shall be deemed to
have been rendered or given on the date when it shall have been mailed as
provided in this Article. Notices on behalf of Landlord may be signed
and sent by Landlord’s attorneys.
INABILITY
TO PERFORM
36. A. If,
by reason of strikes or other labor disputes, fires or other casualty (or
reasonable delays in adjustment of insurance), accidents, orders or regulations
of any Federal, State, County or Municipal authority, or any other cause beyond
Landlord's reasonable control, whether or not such other cause shall be similar
in nature to those hereinbefore enumerated, Landlord is unable to furnish or is
delayed in furnishing any utility or service required to be furnished by
Landlord under the provisions of this Lease or any collateral instrument, or is
unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions or improvements,
whether or not required to be performed or made under this Lease or under any
collateral instrument, or is unable to fulfill or is delayed in fulfilling any
of Landlord's other obligations under this Lease or any collateral instrument,
no such inability or delay shall constitute an actual or constructive eviction,
in whole or in part, or impose any liability upon Landlord or its agents by
reason of inconvenience or annoyance to Tenant, or injury to or interruption of
Tenant's business, or otherwise, nor shall any such delay or inability to
perform on the part of Landlord in any way affect this Lease and the obligation
of Tenant to pay rent hereunder and to perform all of the other covenants and
agreements to be performed by Tenant hereunder.
INTERRUPTION
OF SERVICE
B. Landlord
reserves the right to stop the services of the air conditioning, elevator,
escalator, plumbing, electrical or other mechanical systems or facilities in the
Building when necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements which in the judgment of Landlord are
desirable or necessary, until such repairs, alterations, replacements or
improvements shall have been completed. If Tenant is in default in
the payment of rent or additional rent, or in the performance of any other
provisions of this Lease, and such default continues for ten (10) business days
after notice by Landlord to Tenant without any resolution, then Landlord
reserves the right to discontinue any or all of the services to the Demised
Premises during the continuance of such default. The exercise of such
rights by Landlord shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of rent, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or
otherwise.
CONDITIONS
OF LANDLORD'S LIABILITY
37. A. Tenant
shall not be entitled to claim a constructive eviction from the Demised Premises
unless Tenant shall have first notified Landlord of the condition or conditions
giving rise thereto, and if the complaints be justified, unless Landlord shall
have failed to remedy such conditions within a reasonable time after receipt of
such notice.
B. If
Landlord shall be unable to give possession of the Demised Premises on any date
specified for the commencement of the term by reason of the fact that the
Demised Premises have not been sufficiently completed to make same ready for
occupancy, or for any other reason, Landlord shall not be subject to any
liability for the failure to give possession on said date, nor shall such
failure in any way affect the validity of this Lease or the obligations of
Tenant hereunder. The provisions of this Article are intended to
constitute “an express provision to the contrary” within the meaning of Section
223-a of the New York Real Property Law.
TENANT'S
TAKING POSSESSION
38. Tenant
by entering into occupancy of the premises shall be conclusively deemed to have
agreed that Landlord up to the time of such occupancy has performed all of its
obligations hereunder and that the premises were in satisfactory condition as of
the date of such occupancy, unless within ten (10) business days after such date
Tenant shall give written notice to Landlord specifying the respects in which
the same were not in such condition.
LIABILITY
INSURANCE
39. A. Tenant
will keep in force, at Tenant's expense at all times during the Demised Term and
during such other times as Tenant occupies the Demised Premises or any part
thereof:
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(i) commercial
general liability insurance or comprehensive general liability insurance with
broad form endorsement with respect to the Demised Premises and the operations
of Tenant and any persons under Tenant’s control in, on or about the Demised
Premises in which the limits of coverage shall be not less than Six Million
Dollars ($6,000,000) combined (general liability and umbrella) single limit per
occurrence;
(ii) statutory
workers' compensation coverage and employers' liability as required by state
law;
(iii) business
interruption insurance for a period of not less than one year and such other
insurance as Tenant deems necessary to protect its property and its business
against all perils commonly insured against by prudent tenants;
(iv) such
other insurance with respect to the Demised Premises and in such amounts as
Landlord may from time to time reasonably require against such other insurable
hazards or risks which at the time are commonly insured against in the case of
property similar to the Demised Premises and used as provided
herein.
B. The
foregoing limits shall be increased from time to time in the event that
Landlord, in its reasonable judgment, shall determine that the amounts of
insurance are inadequate to pay any claims that may be brought under the
foregoing policies. All policies required by this Lease shall be written on an
occurrence basis. Such policies are to be written by a company having a general
policy holder's rating of not less than A and a rating in financial size of not
less than XI, as rated in the most current “Best's” insurance reports, and
authorized and licensed to issue such policies in the State of New York. Any
such insurance required of Tenant hereunder may be furnished by Tenant under any
blanket policy carried by it, providing the policy properly allocates the
required limits to the Demised Premises, or under a separate policy thereof.
Each policy evidencing insurance as required to be carried by Tenant pursuant to
this Article shall contain the following provisions and/or clauses: (i) a
cross-liability clause; (ii) a provision in such policy that the coverage
carried by Landlord shall be excess insurance; (iii) a provision including
Landlord, Landlord's managing agent and other parties (including mortgagees)
designated by Landlord as additional insureds (primary status, if available)
(except with respect to workers' compensation insurance); (iv) a waiver by the
insurer of any right of subrogation against Landlord, its agents, employees and
representatives which arises or might arise by reason of any payment under such
policy or by reasons of any act or omission of Landlord, its agents, employees,
or representatives; (v) a severability clause; and (vi) a provision that the
insurer will not cancel, materially change, reduce aggregates or coverage or
fail to renew the coverage provided by such policy without first giving Landlord
and all additional insureds thirty (30) days' prior written notice.
C. A
copy of each paid-up policy or certificate of insurance accompanied by original
endorsements signed by the insurance company evidencing the policies required
hereunder, along with evidence of payment and appropriately authenticated by the
insurer or its authorized agent certifying that such policy has been issued
providing the coverage required by this Article, and containing provisions
specified herein, shall be delivered to Landlord not less than fifteen (15) days
prior to the earlier of (x) the Term Commencement Date, or (y) the date Tenant
shall first take possession of the Demised Premises for any purpose, and, upon
renewals, not less than thirty (30) days prior to the expiration of such
coverage.
D. If
Tenant fails to deliver to Landlord on time any required evidence of insurance
coverage, or fails to carry any insurance required hereunder, or by law or
governmental regulations, then Landlord may (but is not obligated to) purchase
the required coverage on behalf of Tenant, as provided above, in which event
Tenant shall pay to Landlord on demand the cost of such insurance coverage plus
ten percent (10%) of the amount of such cost as a service charge to Landlord. No
such purchase by Landlord shall be deemed a waiver of Tenant's default and
Landlord may pursue its full rights and remedies on account of such
default.
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ENTIRE
AGREEMENT
40. This
Lease contains the entire agreement between the parties and all prior
negotiations and agreements are merged herein. Neither Landlord nor
Landlord's agent or representative has made any representation, or statement, or
promise, upon which Tenant has relied regarding any matter or thing relating to
the Building, the land allocated to it, (including the Building Parking Area) or
the Demised Premises, or any other matter whatsoever, except as is expressly set
forth in this Lease, including, but without limiting the generality of the
foregoing, any statement, representation or promise as to the fitness of the
Demised Premises for any particular use, the services to be rendered to the
Demised Premises or the prospective amount of any item of additional
rent. No oral or written statement, representation or promise
whatsoever with respect to the foregoing or any other matter made by Landlord,
its agents or any broker, whether contained in an affidavit, information
circular, or otherwise shall be binding upon Landlord unless expressly set forth
in this Lease. No rights, easements or licenses are or shall be
acquired by Tenant by implication or otherwise unless expressly set forth in
this Lease. This Lease may not be changed, modified or discharged, in
whole or in part, orally, and no executory agreement shall be effective to
change, modify or discharge, in whole or in part, this Lease or any obligations
under this Lease, unless such agreement is set forth in a written instrument
executed by the party against whom enforcement of the change, modification or
discharge is sought. All references in this Lease to the consent or
approval of Landlord shall be deemed to mean the written consent of Landlord, or
the written approval of Landlord, as the case may be, and no consent or approval
of Landlord shall be effective for any purpose unless such consent or approval
is set forth in a written instrument executed by Landlord. Landlord
and Tenant understand, agree, and acknowledge that (i) this Lease has been
freely negotiated by both parties; (ii) Tenant is sophisticated in
real estate matters or has employed professionals to assist Tenant in the
negotiation of this Lease; and (iii) that, in any controversy, dispute, or
contest over the meaning, interpretation, validity, or enforceability of this
Lease or any of its terms or conditions, there shall be no inference,
presumption, or conclusion drawn whatsoever against either party by reason of
that party having drafted this Lease or any portion thereof.
DEFINITIONS
41. The
term “Landlord” as used in this Lease means only the owner, or the mortgagee in
possession, for the time being of the land and Building (or the owner of a lease
of the Building or of the land and Building) of which the Demised Premises form
a part, so that in the event of any sale or other transfer of said land and
Building or of said lease, or in the event of a lease of the Building, or of the
land and Building, the said Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder, and it shall be
deemed and construed as a covenant running with the land without further
agreement between the parties or their successors in interest, or between the
parties and the purchaser or other transferee at any such sale, or the said
lessee of the Building, or of the land and Building, provided that the
purchaser, transferee or the lessee of the Building assumes and agrees to carry
out any and all covenants and obligations of Landlord hereunder. The
words “re-enter”, “re-entry” and “re-entered” as used in this Lease are not
restricted to their technical legal meanings. The term “business days” as
used in this Lease shall exclude Saturdays, (except such portion thereof as is
covered by specific hours in Article 6 hereof), Sundays and all days observed by
the State and Federal Government as legal holidays.
The terms “person” and “persons” as used in
this Lease shall be deemed to include natural persons, firms, corporations,
associations and any other private or public entities, whether any of the
foregoing are acting on their own behalf or in a representative
capacity.
PARTNERSHIP
TENANT
42. If
Tenant is a partnership (or is comprised of two (2) or more persons,
individually and as co-partners of a partnership) or if Tenant's interest in
this Lease shall be assigned to a partnership (or to two (2) or more persons,
individually and as co-partners of a partnership ) pursuant to Article 21 (any
such partnership and such persons being referred to in this Section as “Partnership Tenant”),
the following provisions of this Section shall apply to such Partnership Tenant:
(a) the liability of each of the parties comprising Partnership Tenant shall be
joint and several, and (b) each of the parties comprising Partnership Tenant
hereby consents in advance to, and agrees to be bound by, any modifications of
this Lease which may hereafter be made and by any notices, demands, requests or
other communications which may hereafter be given, by Partnership Tenant or by
any of the parties comprising Partnership Tenant, and (c) any bills, statements,
notices, demands, requests or other communications given or rendered to
Partnership Tenant or to any of the parties comprising Partnership Tenant shall
be deemed given or rendered to Partnership Tenant and to all such parties and
shall be binding upon Partnership Tenant and all such parties, and (d) if
Partnership Tenant shall admit new partners, all of such new partners shall, by
their admission to Partnership Tenant, be deemed to have assumed performance of
all of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed, and (e) Partnership Tenant shall give prompt notice to
Landlord of the admission of any such new partners, and upon demand of Landlord,
shall cause each such new partner to execute and deliver to Landlord an
agreement in form satisfactory to Landlord, wherein each such new partner shall
assume performance of all of the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed (but neither Landlord's failure to
request any such agreement nor the failure of any such new partner to execute or
deliver any such agreement to Landlord shall vitiate the provisions of
subdivision (d) of this Article).
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SUCCESSORS,
ASSIGNS, ETC.
43. The
covenants, conditions and agreements contained in this Lease shall bind and
inure to the benefit of Landlord and Tenant and their respective heirs,
distributees, executors, administrators, successors, and, except as otherwise
provided in this Lease, their respective assigns.
APPLICATION
OF INSURANCE PROCEEDS, WAIVER OF SUBROGATION
44. In
any case in which Tenant shall be obligated under any provisions of this Lease
to pay to Landlord any loss, cost, damage, liability or expense suffered or
incurred by Landlord, Landlord shall allow to Tenant as an offset against the
amount thereof the net proceeds of any insurance collected by Landlord for or on
account of such loss, cost, damage, liability or expense, provided that the
allowance of such offset does not invalidate or prejudice the policy or policies
under which such proceeds were payable. In any case in which Landlord
shall be obligated under any provisions of this Lease to pay to Tenant any loss,
cost, damage, liability or expense suffered or incurred by Tenant, Tenant shall
allow to Landlord as an offset against the amount thereof the net proceeds of
any insurance collected by Tenant for or on account of such loss, cost, damage,
liability or expense, provided that the allowance of such offset does not
invalidate or prejudice the policy or policies under which such proceeds were
payable.
CAPTIONS
AND INDEX
45. The
captions and the index at the beginning of this Lease, if any, are included only
as a matter of convenience and for reference, and in no way define, limit or
describe the scope of this Lease nor the intent of any provisions
thereof.
RECOVERY
FROM LANDLORD
46. A. Tenant
shall look solely to the estate and property of Landlord in the land and
building of which the Demised Premises are a part, for the satisfaction of
Tenant's remedies for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord in the event of any default or breach
by Landlord with respect to any of the terms, covenants and/or conditions of
this Lease to be observed and/or performed by Landlord, and no other property or
assets of such Landlord shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies.
B. With
respect to any provision of this Lease which provides for Landlord's approval
and/or consent, Tenant, in no event, shall be entitled to make, nor shall Tenant
make any claim, and Tenant hereby waives any claim, for money damages; nor shall
Tenant claim any money damages by way of set-off, counterclaim or defense, based
upon any claim or assertion by Tenant that Landlord has unreasonably withheld or
unreasonably delayed any such consent or approval.
BROKER
47. Tenant
represents and warrants to Landlord that Newmark of Long Island, LLC d/b/a
Newmark Xxxxxx Xxxxx is the sole broker who brought the Demised Premises to
Tenant's attention and with whom Tenant has negotiated in bringing about this
Lease. Tenant agrees to indemnify, defend and save Landlord harmless
of, from and against any and all claims (and all expenses and fees, including
attorneys fees, related thereto) for commissions or compensation made by any
other broker or entity, arising out of or relating to the breach by Tenant of
the foregoing representation. As, if and when this Lease shall be fully executed
and unconditionally delivered by both Landlord and Tenant, Landlord agrees to
pay any commission that may be due the above-named broker in connection with
this Lease in accordance with a separate agreement between Landlord and said
broker.
SECURITY
DEPOSIT
48. A. Tenant
has deposited with Landlord the sum of $58,300.00, 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, Landlord may use, apply or
retain the whole or any part of the security so deposited to the extent required
for the payment of any sum as to which Tenant is in default. In the
event that Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Lease, the security shall be
returned to Tenant within sixty (60) days after the date fixed as the end of
this Lease and after delivery of entire possession of the Demised Premises to
Landlord. In the event of a sale of the land and Building or leasing
of the Building, Landlord shall have the right to transfer the security to the
vendee or lessee and Landlord shall thereupon be released by Tenant from all
liability for the return of such security.
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SEVERABILITY OF PROVISIONS
49. If
any provision or any portion of any provision of this Lease or the application
of any such provision or any portion thereof to any person or circumstance,
shall be held invalid or unenforceable, the remaining portion of such provision
and the remaining provisions of this Lease, or the application of such provision
or portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and such provision or portion of any provision as
shall have been held invalid or unenforceable shall be deemed limited or
modified to the extent necessary to make it valid and enforceable; in no event
shall this Lease be rendered void or unenforceable.
RENEWAL
OPTION
50. A.
Tenant shall have the option, to be exercised as hereinafter provided, to extend
the Demised Term for a period of five (5) years upon the following terms and
conditions:
B.
That at the time of the exercise of such option Tenant shall not be in default
in the performance of any of the terms, covenants or conditions herein contained
with respect to a matter as to which notice of default has been given hereunder
and which has not been remedied within the time limited in this
Lease.
C.
That at the time of the exercise of such option and at the time of the
commencement of such extended period Tenant shall not have assigned this Lease
or sublet any portion of the Demised Premises (except per subsection 21. F
hereof).
D.
That such extension shall be upon the same terms, covenants and conditions as in
this Lease provided, except that (i) there will be no further privilege of
extension for the Demised Term beyond the period referred to above; (ii) during
the renewal period, the annual rental payable by Tenant to Landlord shall
continue to be the base annual rent as calculated pursuant to Article 3 hereof
(including the provisions of Section 3. B hereof); and (iii) during
the extension period, the base year for determining additional rent under the
escalation clause, Article 11, shall remain unchanged and continue to be the
base year established at the commencement of the Demised Term.
E.
Notwithstanding anything in this Article contained to the contrary, Tenant shall
not be entitled to an extension, if at the time of the commencement of the
extended period Tenant shall be in default under any of the terms, covenants or
conditions of this Lease with respect to a matter as to which notice of default
has been given hereunder and which has not been remedied within the time limited
in this Lease, or if this Lease shall have terminated prior to the commencement
of said period.
F.
Tenant shall exercise its option to the extension of the Demised Term by
notifying Landlord of Tenant's election to exercise such option at least twelve
(12) months prior to the expiration of the initial Demised Term. Upon
the giving of this notice, this Lease shall be deemed extended for the specified
period, subject to the provisions of this Article, without execution of any
further instrument.
TENANT'S
RIGHT OF FIRST OFFER
51. Provided
this Lease is in full force and effect, and that Tenant shall not be in default
beyond any applicable notice and cure periods in the performance of any of the
terms, covenants or conditions herein contained with respect to a matter as to
which notice of default has been given hereunder and which has not been remedied
within the time specified in this Lease, on and after the Term Commencement
Date, subject and subordinate to (i) any rights of first offer, rights of first
refusal, or any similar such rights of any existing tenants in the Building,
(ii) any renewal rights of any tenants in the Building, and (iii) the right of
Landlord to negotiate a renewal or extension of a lease with any tenants in the
Building, Tenant shall have the right of first offer with respect to the leasing
of space in the Building contiguous to the Demised Premises (an “Expansion Space”)
during the term of the Lease. Such right of first offer shall be
exercisable, and shall be subject to the conditions following:
A.
Before offering a lease for an Expansion Space to a third party, Landlord shall
send to Tenant written notice of its intention to rent an Expansion Space (a
"Landlord's
Notice"). Tenant shall have ten (10) business days from the
date of delivery of such Landlord’s Notice to deliver to Landlord written notice
(an “Acceptance
Notice") wherein Tenant may agree to lease the Expansion Space on the
terms specified herein.
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B. If
Tenant declines to lease an Expansion Space or fails to reply to Landlord's
Notice within said ten (10) business day period, Landlord may lease such
Expansion Space to any third party upon any terms as Landlord may
desire.
C. If
Tenant timely delivers an Acceptance Notice to Landlord, the parties shall
promptly enter into a modification of lease agreement for the Expansion Space
reflecting the terms herein, and shall make appropriate pro rata adjustments
with respect to all items of additional rent which depend on the amount of space
occupied by Tenant, including, but not limited to, tax escalations pursuant to
Article 11, electric rent pursuant to Schedule C, and the
number of parking spaces to be used by the Tenant pursuant to Article
9.
D. If
Tenant timely exercises its right of first offer Landlord shall prepare and
renovate such Expansion Space for use and occupancy by the Tenant (the “Expansion Space
Work”) subject to a mutually agreeable plan and using building standard
materials, and at a cost to Landlord not to exceed the “Pro Rata Work Letter”
based upon the remaining term of this Lease. The Pro Rata Work Letter
shall be calculated by multiplying (i) the cost per rentable square foot of
Landlord’s Initial Construction, including Landlord’s general contractor’s
overhead and profit, paid by Landlord, multiplied by the rentable square feet of
such Expansion Space times (ii) the remaining term of this Lease (at the time of
the substantial completion of the Expansion Space Work) divided by the Demised
Term.
E. Upon
substantial completion of the Expansion Space Work, the base annual rental rate,
electricity rate and additional rent for the Demised Premises shall be increased
by the rent allocable to such Expansion Space (the “Expansion Space
Rent”). The initial Expansion Space Rent shall be computed by
multiplying (i) the total number of rentable square feet comprising such
Expansion Space times (ii) the amount of base annual rental rate, electricity
rate and additional rent per square foot then being paid by Tenant for the
original Demised Premises hereunder, as theretofore escalated as in Articles “3”
and “11” and Schedule
C hereof provided, and otherwise on the same terms and conditions as set
forth in this Lease.
F. In
the event Tenant exercises its right of first offer as hereinabove provided,
upon substantial completion of such Expansion Space Work, should the Expiration
Date be a date less than five (5) years from the date Landlord completes such
Expansion Space Work, the Demised Term of this Lease shall be deemed amended and
extended to terminate five (5) years from the date Landlord completes such
Expansion Space Work, it being intention of Landlord and Tenant that the term of
the Lease for the Demised Premises and the Expansion Space (including the
expiration dates thereof) shall for all purposes be co-terminus. The Renewal
Option set forth in Article 50 shall remain unaffected by an exercise of
Tenant’s right of first offer.
G. The
exercise of the Right of First Offer as set forth in this Article 51 shall
render the Termination Option as set forth in Article 52 null and void and of no
further force or effect.
H.
If Tenant declines to lease an Expansion Space,
Tenant acknowledges and agrees that Landlord may grant such tenants of such
Expansion Space renewal options therefor and that the right of first offer set
forth in this Article 51 shall be subject and subordinate thereto.
I.
Landlord does not warrant the
availability of Expansion Space.
EXERCISE
FACILITY
52. Tenant
and its employees shall be permitted to use the exercise facility of the
Building subject to Rules and Regulations of Landlord now or hereafter imposed,
of which Tenant receives written notice. Tenant agrees to carry
insurance to cover the risk of injury, claims, losses and liabilities arising
from the use of the Exercise Facility; and Tenant agrees to indemnify, defend
and hold Landlord harmless from and against any such claims, losses or
liabilities. All users shall use the Exercise Facility at their own
risk and all users of the Exercise Facility will be required to execute an
appropriate disclaimer form provided by Landlord. Landlord, at its sole cost and
expense, shall maintain, repair and replace the equipment within the Exercise
Facility so as to keep same in good condition and repair. Tenant’s
employees desiring use of the Exercise Facility will be required to pay to
Landlord an annual fee of $125.00 (subject to reasonable increases in the sole
discretion of Landlord). Anything herein contained to the contrary
notwithstanding, Landlord does not represent, warrant, covenant, or agree that
the presently existing exercise facility at the Building will continue to be in
existence, available or operational during the Demised Term.
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CONFERENCE
FACILITY
53. Subject
to availability and Rules and Regulations of Landlord now or hereafter imposed
regarding use of the Building’s conference facility, Tenant shall be permitted
to use the Building’s lower level conference facility for one (1) business day
per annum during each year of the Demised Term without a fee imposed by Landlord
for such use. Anything herein contained to the contrary
notwithstanding, Landlord does not represent, warrant, covenant, or agree that
the presently existing conference facility at the Building will continue to be
in existence, available or operational during the Demised Term.
IN WITNESS WHEREOF, Landlord and
Tenant have executed this Lease as of the date first above written.
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LANDLORD:
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TENANT:
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JQ1
ASSOCIATES, LLC
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INTELLICHECK
MOBILISA, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
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Xxxxxx X. Xxxxxx
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Name:
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Xxxxx X. Xxxxx
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Title:
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Manager
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Title:
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CFO
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Mobilisa, Inc.
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State
of
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)
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)ss.:
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County
of
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)
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On the ____ day of April, 2010, before
me, the undersigned, a Notary Public in and for said State, personally appeared
_________________________, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
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State
of
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)
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)ss.:
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County
of
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)
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On the ____ day of April, 2010, before
me, the undersigned, a Notary Public in and for said State, personally appeared
_________________________, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
Intellicheck
Mobilisa, Inc.
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