EXHIBIT 10.8
STANDARD FORM OF LOFT LEASE The Real Estate Board of New York, Inc.
Agreement of Lease, made as of this 23rd DAY OF July, 2002, between XXXXX REALTY
LLC, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx party of the first
part, hereinafter referred to as OWNER or LANDLORD, and SYSTEMS SERVICE
TECHNOLOGIES INC., a New York corporation having its principal offices at its
principal offices at 000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
party of the second part, hereinafter referred to as TENANT.
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
south portion of 11th floor, as shown on the attached plan known as Exhibit A,
in the building known as 000 Xxxx 00xx Xxxxxx in the Borough of Manhattan, City
of New York, for the term of seven (7) years and five and one half months (or
until such term shall sooner cease and expire as hereinafter provided) to
commence on the commencement date and to end on the 31st day of December Two
Thousand and Eight and both dates inclusive, at an annual rental rate of See
Schedule "A" in Rider annexed hereto which Tenant agrees to pay in lawful money
of the United States which shall be legal tender in payment of all debts and
dues, public and private, at the time of payment, in equal monthly installments
in advance on the first day of each month during said term, at the office of
Owner or such other place as Owner may designate, without any set off or
deduction whatsoever, except that Tenant shall pay the first monthly xxxxxx
instalment(s) on the execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly instalment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent:
1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy: 2.
Tenant shall use and occupy demised premises for executive and general offices
and parts department of Tenant engaged in the wholesale slae of electronic
equipment and servicing of same provided such use is in accordance with the
certificate of occupancy for the building, if any, and for no other purpose.
Alterations: 3.
Tenant shall make no changes in or to the demised premises of any nature without
Owner's prior written consent. Subject to the prior written consent of Owner,
and to the provisions of this article, Tenant at Tenant's expense, may make
alterations, installations, additions or improvements which are non-structural
and which do not affect utility services or plumbing and electrical lines, in or
to the interior of the demised premises using contractors or mechanics first
approved by Owner. Tenant shall, as its expense, before making any alterations,
additions, installations or improvements obtain all permits, approval 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 Owner. Tenant
agrees to carry and will cause Tenant's contractors and sub- contractors to
carry such xxxxxxx'x compensation, general liability, personal and property
damage insurance as Owner may require. If any mechanic's lien is filed against
the demised premises, or the building of which the same forms a part, for work
claimed to have been done for, or materials furnished to, Tenant, whether or not
done pursuant to this article, the same shall be discharged by Tenant within
thirty days thereafter, at Tenant's expense, by filing the bond required by law
or otherwise. All fixtures and all paneling, partitions, railings and like
installations, installed in the premises at any time, either by Tenant or by
Owner on Tenant's behalf, shall, upon installation, become the property of Owner
and shall remain upon and be surrendered with the demised premises unless Owner,
by notice to Tenant no later than twenty days prior to the date fixed as the
termination of this lease, elects to relinquish Owner's right thereto and to
have them removed by Tenant, in which event the same shall be removed from the
demised premises by Tenant prior to the expiration of the lease, at Tenant's
expense. Nothing in this Article shall be construed to give Owner title to or to
prevent Tenant's removal of trade [fixtures], moveable office furniture and
equipment, but upon removal of any such from the premises or upon removal of
other installations as may be required by Owner. Tenant shall immediately and at
its expense, repair and restore the premises so the condition existing prior to
installation and repair any damage to the demised premises or the building due
to such removal. All property permitted or required to be removed, by Tenant at
the end of the term remaining in the premises after Tenant's removal shall be
deemed abandoned and may, at the election of Owner, either be retained as
Owner's property or removed from the premises by Owner, at Tenant's expense.
Repairs:
4. Owner shall maintain and repair the exterior of and the public portions of
the building. Tenant shall, throughout the term of this lease, take good care of
the demised premises including the bathrooms and lavatory facilities (if the
demised premises encompass the entire floor of the building) and the windows and
window frames and the fixtures and appurtenances therein and at Tenant's sole
costs and expense promptly make all repairs thereto and to the building, whether
structural or non-structural in nature, caused by or resulting from the
carelessness, omission, neglects or improper conduct of Tenant, Tenant's
servants, employees, invitees, or licensees, and whether or not arising from
such Tenant conduct or omission, when required by other provisions of this
lease, including Article 6, Tenant shall also repair all damage to the building
and the demised premises caused by the moving of Tenant's fixtures, furniture or
equipment. All the aforesaid repairs shall be of quality of class equal to the
original work or construction. If Tenant fails, after ten days notice, to
proceed with due diligence to make repairs required to be made by Tenant, the
same may be made by the Owner at the expense of Tenant, and the expenses thereof
incurred by Owner shall be collectible, as additional rent, after rendition of a
xxxx or statement therefor. If the demised premises be or become infested with
vermin, Tenant shall, at its expense, cause the same to be exterminated. Except
as specifically provided in Article 9 or elsewhere in this lease, there shall be
no allowance to the Tenant for a diminution of rental value and no liability on
the part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner, Tenant or others making or failing to make any repairs,
alterations, additions or improvements in or to any portion of the building or
the demised premises or in and to the fixtures, appurtenances or equipment
thereof. The provisions of this Article 4 with respect to the making of repairs
shall not apply in the case of fire or other casualty with regard to which
Article 9 hereof shall apply.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the New York State Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals or of any other Board or body having or asserting
jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant shall, at Tenant's sole cost and expense,
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, or the
Insurance Services Office, or any similar body which shall impose any violation,
order or duty upon Owner or Tenant with respect to the demised premises, arising
out of Tenant's use or manner of use thereof, or, with respects to the building,
if arising out of Tenant's use or manner of use of the demised premises or the
building (including the use permitted under the lease). Except as provided in
Article 30 hereof, nothing herein shall require Tenant to make structural
repairs or alterations unless Tenant has, by its manner of use of the demised
premises or method of operation therein, violated any such laws, ordinances,
orders, rules, regulations or requirements with respect thereto. Tenant shall
not do or permit any act or thing to be done in or to the demised premises which
is contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner, Tenant shall not keep anything in the demised premises except
as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. If by reason of failure to comply with the foregoing the
fire insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of such
failure by Tenant. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" or rate for the building or demised premises
issued by a body making fire insurance rates applicable to said premises shall
be conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to said premises. Tenant
shall not place a load upon any floor of the demised premises exceeding the
floor load per square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to prescribe the weight and position of
all safes, business machines and mechanical equipment. Such installations shall
be placed and maintained by Tenant, at Tenant's expense, in setting sufficient,
in Owner's judgement, to absorb and prevent vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request.
Tenant's Liability Insurance Property Loss, Damage, Indemnity:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, not for loss of or damage
to any property of Tenant by thefts or otherwise, nor for any injury or damage
to persons or property resulting from any cause of whatsoever nature, unless
caused by or due to the negligence of Owner, its agents, servants or employees:
Owner or its agents shall not be liable for any damage caused by other tenants
or persons in, upon or about said building or caused by operations in connection
of any private, public or quasi public work. If at any time any windows of the
demised premises are temporarily closed, darkened or bricked up (permanently
closed, darkened or bricked up, if required by law) for any reason whatsoever
including, but not limited to Owner's own acts. Owner shall not be liable for
any damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction. Tenant
shall indemnify and save harmless Owner against and from all liabilities,
obligations, damaged, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable attorney's fees,
paid, suffered or incurred as a result of any breach by Tenant, Tenant's agents,
contractors, employees, invitees, or licensees, of any covenant or condition of
this lease, or the carelessness, negligence or improper conduct of the Tenant,
Tenant's Agents, contractors, employees, invitees or licensees. Tenant's
liability under this lease extends to the acts and omissions of any sub-tenant,
and any agent, contractor, employee, invitee or licensee of any sub- tenant. In
case any action or proceeding is brought against Owner by reason of any such
claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resign
or defend such action or proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner and this
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by and at the
expense of Owner and the rent, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the [time] the date when the premises
shall have been repaired and restored by Owner, subject to Owner's right to
elect not to restore the same as hereinafter provided. (d) If the demised
premises are rendered wholly unusable or (whether or not the demised premises
are damaged in whole or in part) if the building shall be so damaged that Owner
shall decide to demolish it or to rebuild it, then in any of such events, Owner
may elect to terminate this lease by written notice to Tenant, given within 90
days after such fire or casualty, specifying a date for the expiration of the
lease, which date shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the term of this lease shall
expire as fully and completely as if such date were the date set forth above for
the termination of this lease and Tenant shall forthwith quit, surrender and
vacate the premises without prejudice however, to Owner's rights and remedies
against Tenant under the lease provisions in effect prior to such termination,
and any rent owing shall be paid up to such date and any payments of rent made
by Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Owner shall serve a termination notice as provided
for herein. Owner shall make the repairs and restorations under the conditions
of (b) and (c) hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration for removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and movable equipment, furniture, and
other property. Tenant's liability for rent shall resume five (5) days after
written notice from Owner that the premises are substantially ready for Tenant's
occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law. Owner
and Tenant each hereby releases and waives all right of recovery against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
parts benefiting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
Eminent Domain: 10.
If the whole or any part of the demised premises shall be acquired or condemned
by Eminent Domain for any public or quasi public use or purpose, then and in
that event, the term of this lease shall cease and terminate from the date of
title vesting in such proceeding and Tenant shall have no claim for the value of
any unexpired term of said lease. Tenant shall have the right to make an
independent claim to the condemning authority for the value of Tenant's moving
expenses and personal property, trade fixtures and equipment, provided Tenant is
entitled pursuant to the terms of the lease to remove such property, trade
fixtures and equipment at the end of the term and provided further such claim
does not reduce Owner's reward.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant shall be deemed an assignment. If this lease be
assigned, or if the demised premises or any part thereof be underlet or occupied
by anybody other than Tenant, Owner may, after default by Tenant, collect rent
from the assignee, under tenant or occupant, and apply the net amount collected
to the rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting. See paragraph "55th"
in Rider.
Electric Current:
12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing leaders to the building or the risers of wiring installation and Tenant
may not use any electrical equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the building. The change at any time of the character of
electric service shall in no wise make Owner liable or responsible to Tenant,
for any loss, damages or expenses which Tenant may sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and, at other
reasonable times on reasonable notice to examine the same and to make such
repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to any portion of the building or which Owner may elect to
perform in the premises after Tenant's failure to make repairs or perform any
work which Tenant is obligated to perform under this lease, or for the purpose
of complying with laws, regulations and other directions of governmental
authorities. Tenant shall permit Owner to use and maintain and replace pipes and
conduits in and through the demised premises and to erect new pipes and conduits
therein provided, wherever possible, they are within walls or otherwise
concealed. Owner may, during the progress of any work in the demised premises,
take all necessary materials and equipment into said premises without the same
constituting an eviction nor shall the Tenant be entitled to any abatement of
rent while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof, Owner shall
have the right to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the building, and
during the last six months of the term for the purpose of showing the same to
prospective tenants and may, during said six months period, place upon the
premises the usual notices "To Let" and "For Sale" which notices Tenant shall
permit to remain thereon without molestation. If Tenant is not present to open
and permit an entry into the premises. Owner or Owner's agents may enter the
same whenever such entry may be necessary or permissible by master key or
forcibly and provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Owner or its agents liable therefor, nor
in any event shall the obligations of Tenant hereunder be affected.
Vault, Vault Space, Area:
14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to location of the property line of the building. All vaults
and vault space and all such areas not within the property line of the building,
which Tenant may be permitted to use and/or occupy is to be used and/or occupied
under a revocable license, and if any such license be revoked, or if the amount
of such space or area be diminished or required by any federal, state or
municipal authority or public utility. Owner shall not be subject to nay
liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are a part. Tenant has inspected the premises and accepts them as is,
subject to the riders annexed hereto with respect to Owner's work, if any. In
any event, Owner makes no representation as to the condition of the premises and
Tenant agrees to accept the same subject to violations, whether or not of
record. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenants shall be responsible for and
shall procure and maintain such license or permit.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by sending of a written notice to Tenant within
a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor which is not dismissed within 60 days of the
commencement thereof; or (2) the making by Tenant of an assignment or any other
arrangement for the benefit of creditors under any state statute. Neither Tenant
nor any person claiming through or under Tenant, or by reason of any statute or
order of court, shall thereafter be entitled to possession of the premises
demised but shall forthwith quit and surrender the premises. If this lease shall
be assigned in accordance with its terms, the provisions of this Article 16
shall be applicable only to the party then owning Tenant's interest in this
lease.
(b) It is stipulated and agreed that in the event of the termination of this
lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any other
provisions of this lease to the contrary be entitled to recover from Tenant as
and for liquidated damages an amount equal to the difference between the rental
reserved hereunder for the unexpired portion of the term demised and the fair
and reasonable rental value of the demised premises for the same period. In the
computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination and the fair and reasonable
rental value of the demised premises for the period for which such installment
was payable shall be discounted to the date of termination at the rate of four
percent (4%) per annum. If such premises or any part thereof be relet by the
Owner for the unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amounts of rent reserved upon such reletting shall be deemed to be
the fair and reasonable rental value for the part or the whole of the premises
so re-let during the term of the re-letting. Nothing herein contained shall
limit or prejudice the right of the Owner to prove for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises becomes vacant or deserted "or if this lease be rejected under
s. 235 of Title 11 of the U.S. Code (bankruptcy code);" or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; or
if Tenant shall make default with respect to any other lease between Owner and
Tenant; or if Tenant shall have failed, after five (5) days written notice, to
redeposit with Owner any portion of the security deposited hereunder which Owner
has applied to the payment of any rent and additional rent due and payable
hereunder or failed to move into or take possession of the premises within
fifteen (15) days after the commencement of the term of this lease, of which
fact Owner shall be the sole judge; then in any one or more of such events, upon
Owner serving a written five (5) days notice upon Tenant specifying the nature
of said default and upon the expiration of said five (5) days, if Tenant shall
have failed to comply with or remedy such default, or if the said default or
omission complained of shall be of a nature that the same cannot be completely
cured or remedied within said five (5) day period, and if Tenant shall not have
diligently commenced during such default within such five (5) day period, and
shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written three (3) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said three (3) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such three (3) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and the
term shall expire as aforesaid; or if Tenant shall make default in the payment
of the rent reserved herein or any item of additional rent herein mentioned or
any part of either or in making any other payment herein required; then and in
any of such events Owner may without notice, re-enter the demised premises
either by force or otherwise, and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other occupant of demised
premises and remove their effects and hold the premises as if this lease had not
been made, and Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end. If Tenant shall make
default hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease. Owner may cancel and terminate such renewal or
extension agreement by written notice.
Remedies of Owner and Waiver of Redemption 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent, and additional rent, shall become due thereupon and be paid up to the
time of such re-entry, dispossess and/or expiration, (b) Owner may re-let the
premises or any part or parts thereof, either in the name of Owner or otherwise,
for a term or terms, which may at Owner's option be less than or exceed the
period which would otherwise have constituted the balance of the term of this
lease and may grant concessions or free rent or charge a higher rental than that
in this lease, (c) Tenant or the legal representatives of Tenant shall also pay
Owner as liquidated damages for the failure or Tenant to observe and perform
said Tenant" covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the premises or any
part or parts thereof shall not release or affect Tenant's liability for damages
in computing such liquidated damages there shall be added to the said deficiency
such expenses as Owner may incur in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage, advertising and for keeping the demised
premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws.
Fees and Expenses
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, then, unless otherwise
provided elsewhere in this lease. Owner may immediately or at any time
thereafter and without notice perform the obligation of Tenant thereunder. If
Owner, in connection with the foregoing or in connection with any default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceedings, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within five (5) days of rendition of any xxxx
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner as damages.
Building Alterations and Management:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenant making any repairs in the
building or any such alterations, additions and improvements.11 Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
any controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the demised premises or the
building except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" on the date possession is rendered and
acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between Owner
and Tenant and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect and [abandonment] of it in whole or in part,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
End of Term:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, [broom] clean, in good
order and condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property from the demised premises. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this Lease or any renewal thereof, falls
on Sunday, this lease shall expire at noon on the preceding Saturday unless it
be a legal holiday in which case it shall expire at noon on the preceding
business day.
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 34
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised premises on the date of
the commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or if Owner has
not completed any work required to be performed by Owner, or for any other
reason, Owner shall not be subject to any liability for failure to give
possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this lease, but the rent payable hereunder shall be abated (provided
Tenant is not responsible for Owner's inability to obtain possession or complete
any work required) until after Owner shall have given Tenant notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lease. Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. The provisions
of this article are intended to constitute "an express provision to the
contrary" within the meaning of Section 223.a of the New York Real Property Law.
No Waiver:
25. The failure of Owner to seek redress for violation of, or to insist upon the
strict performance of any covenant or condition of this lease or of any of the
Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent
a subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of rent
with knowledge of the breach of any covenant of this lease shall not be deemed a
waiver of such breach and no provision of this lease shall be deemed to have
been waived by Owner unless such waiver be in writing signed by Owner. No
payment by Tenant or receipt by Owner of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement of any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to
Owner's right to recover the balance of such rent or pursue any other remedy in
this lease provided. All checks rendered to Owner as and for the rent of the
demised premises shall be deemed payments for the account of Tenant. Acceptance
by Owner of rent from anyone other than Tenant shall not be deemed to operate as
an attornment to Owner by the payor of such rent or as a consent by Owner to an
assignment or subletting by Tenant of the demised premises to such payor, or as
a modification of the provisions of this lease. No act or thing done by Owner or
Owner's agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No employee of Owner or Owner's agent
shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
Waiver of Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further mutually agreed
that in the event Owner commences any summary proceeding for possession of the
premises, Tenant will not interpose any counterclaim under Article 4 except for
statutory mandatory counterclaims.
Inability to Perform: 27. This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or delayed from so doing by reason
of strike or labour troubles or any cause whatsoever beyond Owner's sole control
including, but not limited to, government preemption in connection with a
National Emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
Bills and Notices:
28. Except as otherwise in this lease provided, a xxxx, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered it, in writing, delivered to Tenant
personally or sent by registered or certified mail addressed to Tenant at the
building of which the demised premises form a part or at the last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such xxxx or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
Water Charges:
29. If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes (of which fact Tenant constitutes Owner to be the
sole judge) Owner may install a water meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay Owner for the cost of the meter
and the cost of the installation, thereof and throughout the duration of
Tenant's occupancy Tenant shall keep said meter and installation equipment in
good working order and repair at Tenant's own cost and expense in default of
which Owner may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant, as additional rent. Tenant agrees to pay
for water consumed, as shown on said meter as and when bills are rendered, and
on default in making such payment Owner may pay such charges and collect the
same from Tenant, as additional rent. Tenant covenants and agrees to pay, as
additional rent, the sewer rent, charge or any other tax, rent, levy or charge
which now or hereafter is assessed, imposed or a lien upon the demised premises
or the realty of which they are part pursuant to law, order or regulation made
or issued in connection with the use, consumption, maintenance or supply of
water, water system or sewage or sewage connection or system. If the building of
the demised premises or any part therof is supplied with water through a meter
through which water is also supplied to other premises Tenant shall pay to Owner
as additional rent, on the first day of each month, ($25.00) of the total meter
charges as Tenant's portion. Independently of and in addition to any of the
remedies reserved to Owner hereinabove or elsewhere in this lease, Owner may xxx
for an collect any monies to be paid by Tenant of paid by Owner for any of the
reasons or purposes hereinabove set forth.
Sprinklers:
30. Anything elsewhere in this lease to the contrary notwithstanding, if the New
York Board of Fire Underwriters or the New York Fire Insurance Exchange or any
bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant's business,
or the location of partitions, trade fixtures, or other contents of the demised
premises, or for any other reason, or if any such sprinkler system
installations, modifications, alterations, additional sprinkler heads or other
such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system to the fire insurance
rate set by any said Exchange or by any fire insurance company. Tenant shall, at
Tenant's expense, promptly make such sprinkler system installations, changes,
modifications, alterations, and supply additional sprinkler heads or other
equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent the sum
of 7.15% on the first day of each month during the term of this lease, as
Tenant's portion of the contract price for sprinkler supervisory service.
Elevators, Heat, Cleaning:
31. As long as Tenant is not in default under any of the covenants of this lease
Owner shall: [(a) and (b)] omitted] (c) furnish heat to the demised premises,
when and as required by law, on business days from 8 a.m. to 6 p.m.; Owner
reserves the right to stop service of the heating, elevator, plumbing and
electric systems, when necessary, by reason of accident, or emergency, or for
repairs, alterations, replacements or improvements, in the judgment of Owner
desirable or necessary to be made, until said repairs, alterations, replacements
or improvements shall have been completed.
Security:
32. Tenant has deposited with Owner the sum of $20,350.00 as security of the
faithful provisions and conditions of this lease; it is agreed that in the event
Tenant defaults in respect of any of the terms, provision and conditions of this
lease, including, but not limited to, the payment of rent and additional rent,
Owner my use, apply or retain the whole or any part of the security so deposited
to the extent required for the payment of any rent and additional rent or any
other sum as to which Tenant is in default or for any sum which Owner may expend
or may be required to expend by reason of Tenant's default in respect of any of
the terms, covenants and conditions of this lease, including, but not limited
to, any damages or deficiency in the reletting of the premises, whether such
damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. 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 after the date fixed as the end of the
Lease and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee of leasee and Owner shall thereupon be released by
Tenant from all liability solely for the return of said security, and it is
agreed that the provisions hereof shall apply to every transfer or assignment
made of the security to a new Owner. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Owner nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. See paragraph 89th in Rider.
Captions:
33. The Captions are inserted 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 provision thereof.
Definitions:
34. The term "Owner" as used in this lease means only the owner of the fee or of
the leasehold of the building, 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 sales of said land and building or of said lease, or in the
event of a lease of said building, or of the land and building, the said Owner
shall be and hereby is entirely freed and relived of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of Owner hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental rate whether so-expressed or expressed in monthly
installments, and "additional rent". "Additional rent" means all sums which
shall be due to new Owner from Tenant under this lease, in addition to the
annual rental rate. The term "business days" as used in this lease, shall
exclude Saturdays (except such portion thereof as is covered by specific hours
in Article 31 hereof), Sundays and all days observed by the State or Federal
Government as legal holidays and those designated as holidays by the applicable
building service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service. Wherever it is expressly
provided in this lease that consent shall not be unreasonably withheld, such
consent shall not be unreasonably delayed.
Adjacent Excavation - Sharing:
35. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of rent.
Rules and Regulations:
36. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply strictly with, the Rules and Regulations
annexed hereto and such other and further reasonable Rules and Regulations as
Owner or Owner's Agent may from time to time adopt. Notice of any additional
rules or regulations shall be given in such manner as Owner may elect. In case
Tenant disputes the reasonableness of any additional Rule or Regulation
hereafter made or adopted by Owner or Owner's agents, the parties hereto agree
to submit the question of the reasonableness of such Rule or Regulation for
decision to the New York office of the American Arbitration Association, whose
determination shall be final and conclusive upon the parties hereto. The right
to dispute the reasonableness of any additional Rule or Regulation upon Tenant's
part shall be deemed waived unless the same shall be asserted by service of a
notice, in writing upon Owner within ten (10) days after the giving of notice
thereof. Nothing in this lease contained shall be construed to impose upon Owner
any duty or obligation to enforce the Rules and Regulations or terms, covenants
or conditions in any other lease, as against any other tenant and Owner shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees.
Glass:
37. Owner shall replace, at the expense of the Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Owner may insure, and keep insured, at Tenant's expense, all plate and
other glass in the demised premises for and in the name of Owner. Bills for the
premiums therefor shall be rendered by Owner to Tenant at such times as Owner
may elect, and shall be due from, and payable by, Tenant when rendered, and the
amount thereof shall be deemed to be, and be paid, as additional rent.
Estoppel Certificate:
38. [DELETED]
Directory Board Listing:
39. If, at the request of and as accommodation to Tenant, Owner shall place upon
the directory board in the lobby of the building, one or more names of persons
other than Tenant, such directory board listing shall not be construed as the
consent by Owner to an assignment or subletting by Tenant to such person or
persons.
Successors and Assigns:
40. The covenants, conditions and agreements contained in this lease shall bind
and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution, or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this lease, the relationship of Owner and Tenant hereunder, or Tenant's use and
occupancy of the demised premises.
(CONTINUED ON RIDER CONTAINING ARTICLES 41 THROUGH 66, INCLUSIVE, ATTACHED
HERETO AND MADE A PART HEREOF.)
IN WITNESS WHEREOF, Owner and Tanant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: XXXXX REALTY LLC
- ----------------- By: /s/ XXXXXX X. XXXXXXX
Xxxxxx X. Schulsky, Member
Witness for Tenant
- ----------------- SYSTEMS SERVICE TECHNOLOGIES, INC.
BY: /s/XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
Chief Financial Officer
ACKNOWLEDGMENTS
CORPORATE TENANT
STATE OF NEW YORK, no.:
County of
On this day
of , 19 , before me
personally came
to me known, who being by me duly sworn, did depose and say
that he resides
and he is the of
the corporation described in and which executed the foregoing instrument, as
TENANT: that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
board of Directors of said corporation, and that he signed his name thereto by
like order.
INDIVIDUAL TENANT
STATE OF NEW YORK no.:
County of
On this day
of , 19 , before me
personally came
to me known and known to me to be the individual described
in and who, as TENANT, executed
the foregoing instrument and acknowledged to me
that he executed the same.
* * * * * * * * * *
IMPORTNT PLEASE READ
RULES AND REGULATIONS ATTACHED TO
AND MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 36
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
airways, corridors or halls shall not be obstructed or encumbered by any Tenant
or used for any purpose other than for ingress or egress from the demised
premises and for delivery of merchandise and equipment in a prompt and efficient
manner using elevators and passageways designated for such delivery by Owner.
There shall not be [ ] in any space, or in the public hall of the building,
either by any Tenant or by [ ] or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building.
Tenant thereof shall further, at Tenant's expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building; and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the buildings by reason of noise, odors, and or
vibrations, or interfere in any way, with other Tenants or those having business
therein, nor shall any animals or birds be kept in or about the building.
Smoking or carrying lighted cigars or cigarettes in the elevators of the
building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any part of the
demised premises or the building of which they form a part. No boring, cutting
or stringing of wires shall be permitted, except with the prior written consent
of Owner, and as Owner may direct. No Tenant shall lay linoleum, or other
similar floor covering, so that the same shall come in direct contact with the
floor of the demised premises, and, if linoleum or other similar floor covering
is desired to be used in interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease of which these Rules and Regulations are a part.
9. No Tenant shall obtain for use upon the demised premises ice, drinking water,
towel and other similar services, or accept barbering or bootblacking services
in the demised premises, except from persons authorized by Owner, and at hours
and under regulations fixed by Owner. Canvassing, soliciting and peddling in the
building is prohibited and each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the hours of 6
p.m. and 8 a.m. on business days, after 1 p.m. on Saturdays, and at all hours on
Sundays and legal holidays all persons who do not present a pass to the building
signed by Owner. Owner will furnish passes to persons for whom any Tenant
requests same in writing. Each Tenant shall be responsible for all persons for
whom he requests such pass and shall be liable to Owner for all acts of such
persons. Notwithstanding the foregoing, Owner shall not be required to allow
Tenant or any person to enter or remain in the building, except on business days
from 8:00 a.m. to 6:00 p.m., and on Saturdays from 8:00 a.m. to 1:00 p.m. Tenant
shall not have a claim against Owner by reason of Owner excluding from the
building any person who does not present such pass.
11. Owner shall have the right to prohibit any advertising by any Tenant which
in Owner's opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from Owner, Tenant
shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable, combustible or explosive fluid, material, chemical or
substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the demised
premises.
13. Tenant shall not use the demised premises in a manner which disturbs or
interferes with other Tenants in the beneficial use of their premises.
THE SUBMISSION OF THIS LEASE TO TENANT FOR EXAMINATION OR FOR SIGNATURE
SHALL NOT BE DEEMED TO CREATE OR EVIDENCE A RESERVATION OR OPTION OR ANY RIGHT
WITH RESPECT TO THE DEMISED PREMISES OR ANY OTHER SPACE IN THE BUILDING AND IT
IS UNDERSTOOD THAT THIS LEASE SHALL NOT BE EFFECTIVE AND NEITHER PARTY SHALL BE
BOUND THEREUNDER UNLESS IT IS EXECUTED AND DELIVERED BY BOTH PARTIES.
INSERTS TO AGREEMENT OF LEASE DATED AS OF JULY 9, 2002, BETWEEN XXXXX REALTY
LLC, AS OWNER, AND SYSTEMS SERVICE TECHNOLOGIES, INC., AS TENANT, COVERING THE
SOUTH PORTION OF 11TH FLOOR IN THE BUILDING KNOWN AS 000 XXXX 00XX XXXXXX, XXX
XXXX, XXX XXXX
(0X) , together with the right to store parts incidental thereto)
(1) reasonably
(2) Intentionally Deleted Prior to Execution
(3) after notice
(3A) or bonded
(3B) Notwithstanding the foregoing, financing statements may be filed in
connection with the financing of Tenant's trade fixtures, machinery,
equipment, signs, inventory and personal property.
(4) (collectively, "Requirements")
(5) which would otherwise be
(6) reasonable
(6A) Tenant shall not be responsible to correct any violation issued against the
Demised Premises prior to the date of this Lease.
(6B) or willful misconduct
(6C) Nothing contained herein shall be deemed to obligate Tenant to indemnify
Owner from any cost, loss, liability or expense resulting from Owner's own
negligence or willful misconduct or that of its employees, agents or
contractors.
(7) or totally inaccessible
(8) proceeding with reasonable diligence
(9) , and the rents shall be prorated
(10) upon at least twenty-four (24) hours notice (which notice may be oral)
(11) , upon at least twenty-four (24) hours prior notice (except in the event of
an emergency or if required pursuant to Requirements), which notice may be
oral,
(11A)Owner shall to the extent reasonably practicable install such pipes, ducts
and conduits by such methods and at such locations as will not result in a
reduction of the material useable space of the Demised Premises (except to
a de minimus degree). If the installation of such pipes, ducts and conduits
results in the reduction of the material usable portion of the Demised
Premises, the fixed rent under Article 64 hereunder and additional rents
under Article 41 hereunder shall be abated in an amount thereof apportioned
according to the area of the Demised Premises so reduced.
(12) business
(13) (or at other times in the event of an emergency or if required pursuant to
Requirements)
(14) (in the event of an emergency or if required pursuant to Requirements)
(14A) (except pursuant to a permissible assignment or sublet of this Lease)
(14B) sixty (60)
(14C) provided the same do not prevent Tenant's access to the Demised Premises
(15) Except as expressly provided herein, neither
(16) and damage by fire or other insurable casualty
(17) either party
(18) or payment by Tenant (19) or Tenant
(20) such party
(21) or by reason of any other cause beyond Owner's reasonable control
(22) The same shall be done with a minimum of inconvenience to Tenant and Owner
shall pursue the alteration with due diligence; provided that except in the
case of an emergency or if pursuant to Requirements, Owner will notify
Tenant in advance, if possible, of any such stoppage and if ascertainable,
its right of entry or making such repairs, replacements or improvements or
performing any work in the Demised Premises which might interrupt any
services provided to Tenant, Owner shall use its reasonable efforts to
minimize interference with Tenant's use and occupancy of the Demised
Premises in making any such repairs, replacements or improvements or
performing any such work; provided, however, that Owner shall have no
obligation to employ contractors or labor at so-called overtime or other
premium pay rates or to incur any other overtime costs or expenses
whatsoever. However, at Tenant's reasonable request, Owner shall employ
contractors or labor at so-called overtime or other premium pay rates and
incur any other overtime costs or expenses in connection with such entry or
making such repairs, alterations, additions or improvements or performing
any work in the Demised Premises, and Tenant shall pay to Owner, as
additional rent, within ten (10) business days after demand, an amount
equal to the difference between the overtime or other premium pay rates and
the regular pay rates for such labor and any other overtime costs or
expenses so incurred.
(23) or by local 32B-32J, Building Service Employees Union, AFL-CIO or any
successor thereto,
(24) , upon reasonable prior notice to Tenant (except in the event of an
emergency or if required pursuant to Requirements),
(25) by informal arbitration pursuant to Article 48 hereof.
(25A)All rules and regulations hereinafter instituted by Owner shall be applied
substantially uniformly against all similarly situated tenants in the
Building.
(26) , unless caused by Tenant, Tenant's subtenants, agents, employees or
invitees.
(27) Owner shall hold any cash security hereunder on an interest-bearing basis,
the interest on which, less one (1%) percent of the principal deducted by
Owner for its administrative costs, shall be remitted to Tenant when such
security is returned to Tenant.
(A) Notwithstanding anything to the contrary in this Lease, Owner makes no
representation as to (i) the legal use of the Demised Premises, or (ii)
whether the use complies with the Certificate of Occupancy, a copy of
which is attached hereto known as Exhibit D, or any applicable zoning
requirements or regulations. Tenant warrants and represents that no
express or implied warranties, representations or agreements on the
part of Owner with reference to the usability of the Demised Premises
or for the purposes for which Tenant intends to use same.
RIDER ANNEXED TO AND MADE A PART OF THE LEASE DATED AS OF JULY 9, 2002, BETWEEN
XXXXX REALTY LLC, AS OWNER, AND SYSTEMS SERVICE TECHNOLOGIES, INC., AS TENANT,
COVERING SOUTH PORTION OF 11TH FLOOR IN THE BUILDING KNOWN AS 000 XXXX 00XX
XXXXXX, XXX XXXX, XXX XXXX
41. Adjustments of Rents
(a) As used in this Article 41, the words and terms which follow mean and
include the following:
(1) "Tax Year" shall mean each period of twelve (12) months, commencing on
the first day of July of each such period, in which occurs any part of the term
of this Lease or such other period of twelve months occurring during the term of
this Lease as hereafter may be duly adopted as the fiscal year for real estate
tax purposes of the City of New York.
(2) "Tenant's Proportionate Share" shall mean 3.90%.
(3) "Real Estate Taxes" shall mean the real estate taxes and assessments
(including special or extraordinary assessments) and sewer and water rents
imposed upon the building and the land. If, due to a future change in the method
of taxation, any franchise, income, profit or other tax, however designated,
shall be levied against Owner in substitution for, in whole or in part, or in
lieu of any tax which would otherwise constitute a Real Estate Tax, such
franchise, income, profit or other tax shall be deemed to be included in the
term "Real Estate Taxes".
(4) "Real Estate Tax Base" shall mean the average of the Real Estate Taxes
for the Tax Year commencing July 1, 2001, and ending June 30, 2002, and the Real
Estate Taxes for the Tax Year commencing July 1, 2002, and ending June 30, 2003,
as finally determined.
(5) "Escalation Statement" shall mean a statement in writing signed by
Owner, setting forth the amount payable by Tenant for a specified Tax Year
pursuant to this Article 41.
(b) In addition to the sums payable under the provisions of the printed
form of the Lease, Tenant shall pay as additional rent for each Tax year a sum
(hereinafter referred to as "Tenant's Tax Payment") equal to Tenant's
Proportionate Share of the amount by which the Real Estate Taxes for such Tax
Year exceed the Real Estate Tax Base. Tenant's Tax Payment for each Tax Year
shall be due and payable in two (2) equal installments, in advance, on the first
day of each June and December during each Tax year, based upon the Escalation
Statement furnished prior to the commencement of such Tax Year, until such time
as a new Escalation Statement for a subsequent Tax Year shall become effective.
If an Escalation Statement is furnished to Tenant after the commencement of a
Tax Year in respect of which such Escalation Statement is rendered, Tenant
shall, within fifteen (15) days thereafter, pay to Owner an amount equal to the
amount of any underpayment of Tenant's Tax Payment with respect to such Tax Year
and, in the event of any overpayment, Owner shall permit Tenant to credit
against subsequent payments under this paragraph the amount of Tenant's
overpayment. If there shall be any increase in Real Estate Taxes for any Tax
Year, whether during or after such Tax Year, and Tenant's Tax Payment for such
Tax Year shall be adjusted and paid substantially in the same manner as provided
in the preceding sentence. If during the term of this Lease, Real Estate Taxes
are required to be paid (either to the appropriate taxing authorities or as tax
escrow payments to a superior mortgagee) in full or in monthly, or other
installments, on any other date or dates than as presently required, then at
Owner's option, Tenant's Tax Payments shall be correspondingly accelerated or
revised so that said Tenant's Tax Payments are due at least thirty (30) days
prior to the date payments are due to the taxing authorities or the superior
mortgagee. The benefit of any discount for any early payment or prepayment of
Real Estate Taxes shall accrue solely to the benefit of Owner and such discount
shall not be subtracted from Real Estate Taxes. If the Building is or becomes
part of a Business Improvement District or a similar type association, Tenant
shall pay its proportionate share of any fees or assessments levied by said
association as additional rent. If the real estate tax fiscal year of The City
of New York shall be changed during the term of this Lease, any Real Estate
Taxes for such fiscal year, a part of which is included within a particular Tax
Year and a part of which is not so included, shall be apportioned on the basis
of the number of days in such fiscal year included in the particular Tax Year
for the purpose of making the computations under this paragraph. Tenant shall
pay, as additional rent on demand, its proportionate share of any and all
expenses incurred by Owner in contesting the validity of, in seeking a reduction
in, or in seeking to prevent an increase in any Real Estate Taxes. In the event
of a reduction of the Real Estate Taxes after Tenant shall have paid Tenant's
Proportionate Share of such payment, Tenant shall be entitled to receive its
Proportionate Share of such reduction (less any expenses, including but not
limited to counsel fees, incurred by Owner in connection with such reduction).
(c) In the event that (i) the date of the expiration or other termination
of this Lease shall be a day other than the last day of a Tax Year or (ii) there
is any increase or decrease in the size of the Demised Premises (as may be
provided in this Lease), then in such event in applying the provisions of this
Article 41 with respect to any Tax Year in which such event shall have occurred,
appropriate adjustments shall be made to reflect the occurrence of such event on
a basis consistent with the principles underlying the provisions of this Article
41 taking into consideration (y) the portion of such Tax Year which shall have
elapsed prior to the date of such expiration or termination and, (z) in the case
of any such increase or decrease, the portion of the Demised Premises to which
the same relates.
(d) Payments shall be made pursuant to this Article 41 notwithstanding the
fact that an Escalation Statement is furnished to Tenant after the expiration of
the term of this Lease.
(e) In no event shall the annual rental rate ever be reduced by operation
of this Article 41 and the rights and obligations of Owner and Tenant under the
provisions of this Article 41 with respect to any additional rent shall survive
the termination of this Lease.
(f) Owner's failure to render an Escalation Statement with respect to any
Tax Year shall not prejudice Owner's right to thereafter render an Escalation
Statement with respect thereto or with respect to any subsequent Tax Year.
(g) Each Escalation Statement shall be conclusive and binding upon Tenant
unless within sixty (60) days after receipt of such Escalation Statement, Tenant
shall notify Owner that it disputes the correctness of such Escalation
Statement, specifying the particular respects in which such Escalation Statement
is claimed to be incorrect. Any dispute relating to any Escalation Statement not
resolved within ninety (90) days after the giving of such Escalation Statement
may be submitted to arbitration by either party pursuant to Article 48 hereof.
Pending the determination of such dispute, Tenant shall pay additional rent in
accordance with the Escalation Statement that Tenant is disputing, without
prejudice to Tenant's position.
(h) Upon Tenant's written request, which request may be made no more than
once in any Tax Year, Owner shall provide Tenant with a copy of the tax xxxx for
such Tax Year provided Owner is in actual possession of a copy of the tax xxxx
for such Tax Year.
(i) Notwithstanding anything to the contrary contained in this Article 41,
Tenant shall not be required to pay any portion of Tenant's Tax Payment
attributable to the period commencing on the Commencement Date and ending on
June 30, 2003.
42. Intentionally Deleted Prior to Execution
43. Electricity
(a) Tenant agrees to make its own arrangements with the public utility
company (the "Utility") servicing the Demised Premises for electric service and
for the payment of all charges for electricity consumed by Tenant in the Demised
Premises. In no event shall Owner be responsible for the supply of electricity
or for the charges for electricity consumed at the Demised Premises by Tenant.
Owner represents that the Demised Premises are directly metered, that a meter is
currently existing for the Demised Premises for use by Tenant and that such
meter is in working order. Tenant shall keep all electric meters and electrical
equipment exclusively serving the Demised Premises in good order and repair, at
it own cost and expense.
(b) Owner shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric service furnished to the Demised
Premises by reason of any requirement, act or omission of the Utility or for any
other reason not attributable to the negligence of Owner, whether electricity is
provided by public or private utility or by any electricity generation system
owned and operated by Owner.
(c) Tenant shall at all times comply with the rules and regulations
applicable to service, equipment, wiring and requirements of the Utility. Tenant
shall not use any electrical equipment which, in Owner's reasonable judgment,
would exceed the capacity of the existing risers, conductors and equipment
serving the Demised Premises or interfere with the electrical service to other
tenants of the Building. Tenant shall not make or perform or permit the
performing of any alterations to wiring installation for other electrical
facilities in or serving the Demised Premises without the prior consent of Owner
in each instance, which consent shall not be unreasonably withheld or delayed.
Should Owner grant any such consent, all additional risers or other equipment
required therefor shall be installed by Owner and the cost thereof shall be paid
by Tenant as additional rent, payable upon demand. Tenant shall furnish and
install, at its expense, all replacement lighting tubes, lamps, bulbs and
ballasts required in the Demised Premises.
(d) The Utility currently serving the Demised Premises (the "Electric
Service Provider") is Con Edison. Owner shall have the right (subject to any
applicable laws), at any time and from time to time, to contract for electrical
service to the Building from a different utility company or companies providing
electrical service (the "Alternate Service Provider"). In such event, Tenant
shall (i) contract for electricity from the Alternate Service Provider, and (ii)
cooperate with Owner, the Electric Service Provider and any Alternate Service
Provider and shall (subject to the provisions of Article 13) provide access to
the Demised Premises, electric lines, feeders, risers, wiring and any other
machinery or equipment in the Demised Premises. Unless the use of an Alternate
Service Provider is required under any Requirement, Owner shall pay all costs
and expenses incurred by Tenant in connecting to and obtaining electrical
service from the Alternate Service Provider (including, without limitation, the
cost of installation of any additional electrical lines, feeders and risers in
connection therewith). In no event, however, shall Owner be required to pay for
any portion of the cost of Tenant's electric service.
(e) The electrical wiring conductors, feeders, meters and disconnect
switches serving the Demised Premises shall have a nominal capacity of not less
than 150 amps, three phase, 208 volts in accordance with the New York City
electrical code and other similar Requirements.
44. Addendum to Article 3
(a) Anything contained in this Article 3 to the contrary notwithstanding,
Owner's consent shall not be unreasonably withheld or delayed with respect to
any cosmetic, nonstructural Tenant's Changes, provided that (x) consent for such
Tenant's Change is not required by any third party (such as, by way of example,
a mortgagee or ground lessor), and (y) such Tenant's Change (i) is not visible
from the outside of the Building, (ii) does not affect any part of the Building
other than the Demised Premises, (iii) does not affect any service required to
be furnished by Owner to any other tenant or occupant of the Building, (iv) does
not affect the proper functioning of any Building Systems (hereinafter defined),
(v)) does not impair or diminish the value or utility of the Building, and (vi)
does not affect the Certificate of Occupancy for the Building or the Demised
Premises. Owner's consent shall not be required with respect to those
nonstructural Tenant's Changes which are merely cosmetic or decorative in
nature, comply with the provisions of clauses (i) - (vi) above, and the cost of
which are less than THIRTY-FIVE THOUSAND & 00/100 ($35,000.00) DOLLARS,
provided, however, that such Tenant's Changes shall otherwise be performed in
accordance with the provisions of this Lease. With respect to mere cosmetic
and/or decorative Tenant's Changes, Tenant shall only be required to submit to
Owner a reasonably detailed schematic design or description and such other
information as shall be reasonably requested by Owner. The term "Building
Systems" shall mean the mechanical, gas, electrical, sanitary, heating, air
conditioning, ventilating, elevator, plumbing, life-safety and other service
systems of the Building.
(b) In addition to Owner's right to require Tenant to remove its
installations and additions contained in Article 3 hereof, Owner shall, if it so
elects, remove the same after the expiration of the term hereof and the cost
incurred by Owner in connection therewith shall be reimbursed by Tenant to Owner
promptly after written demand therefor.
45. Addendum to Article 9
Anything contained in Article 9 hereof to the contrary notwithstanding, in
the event of partial damage to the Demised Premises by fire or other cause,
Owner shall make such repairs resulting from such damage as provided in Article
9. In the event of such partial damage by fire or other cause, the rent until
such repairs shall be made shall be apportioned only if: (1) such partial damage
is not due to fault or neglect of Tenant, Tenant's servants, employees, agents,
visitors or licensees, and (ii) the Demised Premises are rendered untenantable
at least in part as a result of such damage; if such apportionment is made of
rental because of partial damage in accordance with the foregoing, such
apportionment shall be measured by and according to the part of the Demised
Premises which is usable by Tenant and such apportionment shall be for the
period from the date of the occurrence of the damage to the date that Owner
substantially completes the repairs required to be made by Owner pursuant to the
foregoing. If there is no apportionment, then Tenant shall be responsible for
the annual rental rate and additional rent as if said damage did not occur.
Tenant shall not interfere with any of the work by Owner which Owner may be
required to perform hereunder in the event of partial damage. Except as
specifically modified herein the terms, conditions and provisions set forth in
Article 9 hereof shall remain in full force and effect.
46. Amendment to Article 11
(a) Supplementing Article 11 hereof, a transfer of fifty (50%) percent or
greater interest (whether stock, partnership or otherwise) of Tenant shall be
deemed to be an assignment of this Lease, either in one transaction or in any
series of transactions within a thirty-six (36) month period.
(b) Notwithstanding anything hereinbefore contained in Article 11 or
Paragraph (a) hereof, in the event Tenant desires Owner's consent to an
assignment or subletting of all of the Demised Premises, Tenant, by notice in
writing, (i) shall notify Owner of the name of the proposed assignee or
subtenant and furnish to Owner such information as to the proposed assignee's or
subtenant's financial responsibility and standing as Owner may require, (ii)
shall deliver to Owner an executed copy of the proposed assignment or sublease,
as Owner may require, and (iii) shall offer to vacate the Demised Premises and
to surrender the same to Owner as of a date (the "Surrender Date") specified in
said offer which shall be the last day of any calendar month during the term
hereof, provided, however, that the Surrender Date shall not be earlier than the
date occurring 60 days after the giving of such notice nor be later than the
effective date of the proposed assignment or the commencement date of the term
of the proposed sublease. Owner may accept such offer by notice to Tenant given
within 30 days after the receipt of such notice from Tenant. If Owner accepts
such offer, Tenant shall surrender to Owner, effective as of the Surrender Date,
all Tenant's right, title and interest in and to the entire Demised Premises. If
the entire Demised Premises be so surrendered by Tenant, this Lease shall be
canceled and terminated as of the Surrender Date with the same force and effect
as if the Surrender Date were the date hereinbefore specified for the expiration
of the full term of this Lease.
In the event of any such surrender by Tenant of the Demised Premises, Owner
and Tenant shall, at the request of either party, execute and deliver an
agreement in recordable form to the effect(s) hereinbefore stated.
(c) In the event Owner does not accept such offer of Tenant referred to in
Paragraph (b) hereof, Owner covenants not to unreasonably withhold or delay its
consent to such proposed assignment or subletting by Tenant of such space to the
proposed assignee or subtenant on said covenants, agreements, terms, provisions
and conditions set forth in the copy of the proposed assignment or sublease
delivered to Owner as described in clause (ii) of the first sentence of
subparagraph (b) hereof; provided, however, that Owner shall not in any event be
obligated to consent to any such proposed assignment or subletting unless:
(1) The proposed assignee, or subtenant, is (i) of a financial standing
(and in this regard, Tenant shall furnish Owner with such information as Owner
shall require as to the proposed assignee's or subtenant's financial
responsibility and standing) and (ii) is engaged in a business satisfactory to
Owner, and will use the Demised Premises in a manner which is in keeping with
the then standards of the building and in such a manner as to not violate any
negative covenants as to use contained in any other lease made between Owner and
other tenant(s) of the building;
(2) the proposed assignee or subtenant is a reputable entity;
(3) the proposed assignee, or subtenant, is not then a tenant or occupant
of any part of the building or a corporation or other entity which controls or
is controlled by such tenant or occupant or is under common control with such
tenant or occupant;
(4) Owner shall have the right upon five (5) days' notice to Tenant, to
require Tenant thereafter to pay to Owner a sum equal to (i) any rent or other
consideration paid to Tenant by any subtenant which is in excess of the annual
rental rate and additional rent then being paid by Tenant to Owner pursuant to
the terms of this Lease after the deduction of any brokerage commission and
reasonable attorneys' fees, and (ii) any other profit or gain realized by Tenant
from any such assignment or subletting; all sums payable hereunder by Tenant
shall be paid to Owner as additional rent immediately upon receipt thereof by
Tenant and if requested by Owner, Tenant shall promptly enter into a written
agreement with Owner setting forth the amount of additional rent to be paid to
Owner pursuant to this Paragraph (c) (4), (if only part of the Demised Premises
is sublet, then the rent paid therefor by Tenant to Owner shall be deemed to be
that fraction thereof that the area of said sublet space bears to the entire
Demised Premises);
(5) there shall be no default (beyond the expiration of any applicable
notice or cure periods) by Tenant under any of the terms, covenants and
conditions of this Lease at the time that Owner's consent to any such assignment
or subletting is requested and on the effective date of the assignment or the
proposed sublease;
(6) the proposed assignee or subtenant shall not be (i) a government or any
subdivision or agency thereof, (ii) a school, college, university or educational
institution of any type, whether for profit or non-profit, (iii) an employment
or recruitment agency, or (iv) a travel agency;
(7) Tenant shall reimburse Owner for any reasonable expenses that may be
incurred by Owner in connection with the proposed assignment of sublease,
including without limitation the reasonable costs of making investigations as to
the acceptability of a proposed assignee or subtenant and reasonable legal
expenses incurred in connection with the granting of any requested consent to
the assignment or sublease;
(8) in no event shall Tenant advertise or list with brokers at a rental
rate less than the rental rates then being charged under leases being entered
into by Owner for comparable space in the building and for a comparable term;
and
(9) with respect to an assignment, the proposed assignee shall, by no later
than ten (10) days prior to the date of such assignment, pay to Owner an amount
(the "Increased Security Sum") equal to two-twelfths (2/12th) of the annual rent
then in effect for the calendar year in which such assignment occurs. Any
payment of Increased Security Sum(s) pursuant to this subparagraph (9) shall be
held by Owner in accordance with the terms of Article 32 of this Lease; and the
security deposit set forth in such Article 32 of this Lease shall thereupon be
increased by the amount of any such Increased Security Sum(s).
(d) Each subletting pursuant to this Article 46, and any sublease agreement
entered into in connection therewith, shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this Lease; and any
assignment instrument entered into by and between Tenant and any proposed
assignee, shall contain a clause pursuant to which assignee assumes all of the
obligations of the tenant under this Lease. Tenant covenants and agrees that,
notwithstanding such assignment or any such subletting to any subtenant and/or
acceptance of rent or additional rent by Owner from any subtenant, Tenant shall
and will remain fully liable for the payment of the annual rental rate and
additional rent due and to become due hereunder and for the performance of all
the covenants, agreements, terms, provisions and conditions contained in this
Lease on the part of Tenant to be performed. Tenant further covenants and agrees
that notwithstanding any such assignment or subletting, no other and further
assignment, underletting or subletting of the Demised Premises or any part
thereof shall or will be made except upon compliance with and subject to the
provisions of this Article 46. Tenant shall promptly furnish to Owner a fully
executed copy of each such sublease or assignment.
(e) If this Lease be assigned, or if the Demised Premises be sublet or
occupied by anybody other than Tenant, Owner may, after default by Tenant,
collect rent from the assignee, subtenant or occupant, and apply the net amount
collected to the rent herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver by Owner of any of Tenant's
covenants contained in this Article 46 or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained.
(f) Any sublease permitted under this Lease shall contain a provision
specifying that upon termination of the Lease by reason of eviction, Owner shall
have the option to either terminate any sublease permitted hereunder or to
require the subtenant thereunder to enter into a new lease directly with Owner
on the same terms and conditions as the sublease. At Owner's request, the
subtenant under any sublease permitted hereunder shall enter into a written
agreement with Owner confirming the provisions of this clause (f).
(g) Notwithstanding anything contained in this Lease to the contrary, and
provided Tenant is not in default, beyond any applicable notice and grace
periods, in complying with the terms and conditions of this Lease, it is agreed
that this Lease may be assigned or the Demised Premises may be sublet, in whole
or in part, without the consent of Owner (and without the application of Section
46(c) thereof), to any entity which controls, is controlled by or is under
direct or indirect common control with Tenant, or to any entity resulting from
the merger or consolidation with Tenant, or to any person or entity which
acquires all the assets (an "Asset Acquisition") of Tenant as a going concern of
the business that is being conducted at the Demised Premises (each of which is
referred to as a "Permitted Party") provided, that (a) in the case of an
assignment, the assignee shall assume in writing, the terms and conditions of
this Lease, (b) within fifteen (15) days after the execution of such assignment
or sublease, Tenant shall deliver an original fully executed counterpart of such
writing to Owner, in recordable form, (c) upon written request of Owner, any
guaranty of or relating to this Lease is reaffirmed in a form reasonably
acceptable to Owner, (d) prior to the effectiveness of any assignment or
subletting, to an affiliate, Tenant provides to Owner documentation, reasonably
satisfactory to Owner, demonstrating the affiliate relationship between Tenant
and such affiliate, and (e) prior to the effectiveness of any assignment or
subletting in connection with the merger, consolidation or Asset Acquisition of
Tenant, Tenant provides to Owner such documentation, reasonably satisfactory to
Owner, detailing such merger, consolidation of Asset Acquisition (including,
without limitation, financial statements and acquisition agreements). In the
event of either an Asset Acquisition or a stock acquisition, the entity which
has acquired said assets or stock shall guaranty this Lease (which guaranty
shall be in a form reasonably acceptable to Owner), such guaranty to be
delivered to Owner no later than ten (10) days following the closing of such
acquisition. For purposes of this Article, the term "control" shall mean the
power to direct the management and policies of such entity, directly or
indirectly, whether through the ownership of securities, by contract or
otherwise. At least ten (10) days prior to the effective date of any assignment,
or the commencement of any sublease, effected pursuant to this Section 46(g),
Tenant shall provide to Owner documentation reasonably satisfactory to Owner (i)
as to the affiliate relationship between Tenant and any affiliate occupying the
Demised Premises, or (ii) with respect to any entity occupying the Demised
Premises as the result of a merger, consolidation or Asset Acquisition.
47. Addendum to Article 22
At the expiration of the term of this Lease, Tenant will, unless Owner
shall otherwise direct, remove, at Tenant's own cost and expense, all wallpaper,
cork and other covering which Tenant has placed upon the Demised Premises,
and/or all wallpaper which was already placed in the Demised Premises at the
time that Tenant first entered therein, and which Tenant allowed to remain
therein. In the event that the wallpaper, cork or other wall covering is removed
by Tenant, Tenant will cause the walls to be restored to good order and
appearance.
48. Informal Arbitration
(a) Every dispute between the parties which is specifically provided in
this Lease to be determined by informal arbitration shall be submitted to
Chairman of the Board of Directors of the Management Division of the Real Estate
Board of New York, Inc. (or to such officer of said Real Estate Board or any
similar organization then successor thereto, having like authority or duties),
for determination by him or by such other, impartial person or persons as he may
designate, and such determination, when made and rendered to the parties in
writing, shall be final and conclusive on the parties. Such submission may be
made by either party on notice to the other ("Notice of Dispute") and the other
party may then, within ten (10) days after receipt of the Notice of Dispute
present its statement of the matter in dispute (the "Reply") to such arbitrator,
upon notice to the first party. The expenses of such informal arbitration shall
be borne by the parties equally.
(b) If at the time such dispute is to be submitted neither the Real Estate
Board of New York, Inc. nor any such successor organization shall exist, or if
at such time the appropriate officer of said Real Estate Board or such successor
organization shall be unwilling or unable to accept the submission, or if
despite diligent efforts made in good faith by either party, the arbitrator is
not appointed or does not commence hearing the matter within thirty (30) days
after the receipt of the Reply, or if the arbitrator to whom the matter is
submitted shall fail to render his decision to the parties in writing within
sixty (60) days after the receipt of the Reply, then in any such event, at the
instance of either party, if the event shall not be due to its fault or neglect,
the matter in dispute shall be determined by arbitration in the City and County
of New York in accordance with the Commercial Arbitration Rules then obtaining
of the American Arbitration Association (or any organization then successor
thereto). The expenses of such procedure shall be borne by the parties equally.
49. Late Payment Charge
If Tenant shall make any payment of the annual rental rate, additional rent
or other charges more than ten (10) days after the same is due and payable,
Tenant shall pay a late payment charge on the amount due equal to the Lesser of
(i) an interest factor (calculated on a per diem basis from the date on which
payment was due) equal to six (6%) percent above the prime commercial lending
rate of the Chase Manhattan Bank, N.A. charged to its customers of the highest
credit standing for 90-day unsecured notes in effect at the time of such late
payment or (ii) the maximum applicable legal rate. Such amounts shall be payable
as additional rent hereunder.
50. Change of Conditions
Owner shall not be liable for any change of condition in the Demised
Premises caused by the compliance with the present or future laws, rules,
orders, ordinances, requirements, or regulations of any Federal, State, County
or Municipal authority or government, including any change required by law for
off-street parking or similar legislation, or by revocation by any such
authority or authorities of any permit or license heretofore granted, or by
construction or operation of any public or quasi-public work, or by the erection
of any building or buildings upon any adjacent property, or by change of
environment. Owner shall not be liable for interference with or loss of light or
other incorporeal hereditaments caused by anybody other than Owner, or caused by
or for the City of New York or any governmental or quasi-governmental agency or
authority in connection with the construction of any public or quasi-pubic work.
51. Insurance
(a) Tenant shall at all times keep Tenant's Property and all other
alterations, installations and improvements made by Tenant in the Demised
Premises now or hereinafter included in the Demised Premises insured for damages
by fire and lighting, vandalism, malicious mischief and all other risks and
hazards comprehended by the full "extended coverage" endorsements and against
such other hazards and risks as Owner may from time to time reasonably
designate, for the "full replacement cost" thereof. Such full replacement cost
shall be determined from time to time but not more frequently than once in any
twelve (12) calendar month period at the request of Owner or any superior
Mortgagee or Lessee by an appraiser, engineer, architect or contractor
designated by Owner or such Mortgagee or Lessee.
(b) In addition to fire, lightning and extended coverage insurance, Tenant
will maintain personal injury or property damage insurance, under a policy of
commercial general liability insurance, with such limits as may reasonably be
requested by Owner from time to time, but not less than $1,000,000/$2,000,000 in
respect to bodily injury or death and $500,000/$1,000,000 for property damage,
and $10,000,000 umbrella coverage for bodily injury, death and property damage,
and the policy or policies evidencing such insurance shall, include Owner,
Owner's managing agent and any Lessor or Mortgagee as additional insureds, but
only with respect to liability arising out of the ownership, maintenance or use
of the Demised Premises.
(c) All policies required to be maintained pursuant to the provisions of
this Lease shall be issued by an insurance company or companies having a Best's
rating of at least A/AAA and pursuant to the provisions of this Lease shall have
a written undertaking from the insurer to notify all insureds thereunder at
least thirty (30) days prior to cancellation thereof. Tenant may provide any
insurance required pursuant to the provisions of this Lease under a so-called
blanket policy or policies covering other parties and locations so long as the
coverage under such policy or policies is not thereby diminished. Upon request,
Tenant shall furnish Owner with a certificate of insurance evidencing any such
policy or a certificate naming Owner, Owner's managing agent and any Lessor or
Mortgagee, as additional insureds.
52. Indemnification and Liability of Owner
(a) Tenant shall indemnify and save harmless Owner against and from (a) any
and all claims (i) arising from (x) the conduct of business in or management
(other than by Owner) of the Demised Premises or (y) any work or thing
whatsoever done, or any condition created (other than by Owner) in or about the
Demised Premises during the term of this Lease or during the period of time, if
any, prior to the Commencement Date that Tenant may have be given access to the
Demised Premises pursuant to this Lease, or (ii) arising from any act or
omission of Tenant or any of its subtenants or licensees or its or their
employees, agents or contractors, and (b) all costs, expenses and liabilities
incurred in or in connection with each such claim or action or proceeding
brought thereon. In case any action or proceeding be brought against Owner by
reason of such claim, Tenant, upon notice from Owner, shall resist and defend
such action or proceeding by counsel chosen by Tenant who shall be reasonably
satisfactory to Owner. Tenant or its counsel shall keep Owner fully apprised at
all times of the status of such defense. Counsel for Tenant's insurer shall be
deemed satisfactory to Owner.
(b) Tenant shall look only to Owner's estate(s) in the Land and Building
(or the proceed thereof) for the satisfaction of Tenant's remedies for the
collection of any judgment (or other judicial process) requiring the payment of
money by Owner in the event of any default by Owner under this Lease, and no
other property or other assets of Owner shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Tenant's remedies under or
with respect to this Lease, the relationship of Owner and Tenant hereunder or
Tenant's use and occupancy of the Demised Premises.
53. Miscellaneous
(a) If any of the provisions of this Lease, or the application thereof to
any person or circumstances, shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such provisions or provisions
to persons or circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected thereby, and every provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
Law.
(b) This Lease shall be governed in all respects by the laws of the State
of New York.
(c) If, in connection with obtaining financing for the building, a bank,
insurance company or other lending institution shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or materially
adversely affect the leasehold interest hereby created.
(d) If Owner shall consent to the omission or removal of any part of, or
the insertion of any door or other opening in, any wall separating the Demised
Premises from adjoining space leased to another tenant, then (i) Tenant shall be
responsible for all risk or damage to, or loss of theft of, property arising as
an incident to such omission or removal or the use of such door or other
opening, or because of the existence thereof, and shall indemnify and save Owner
harmless from and against any claim, demand or action for, or on account of, any
such loss, theft or damage and (ii) in the event o the termination of this Lease
or the lease of said other tenant, Owner may enter the Demised Premises and
Owner, at Tenant's expense, may close up such door or other opening by erecting
a wall to match the wall separating the Demised Premises from said adjoining
space, and Tenant shall not be entitled to any diminution or abatement of rent
or other compensation by reason thereof.
(e) Tenant shall not be entitled to exercise any right of termination or
other option granted to it by this Lease (if any) at any time when Tenant is in
default (beyond the expiration of any applicable notice or cure period) in the
performance or observance of any of the covenants, terms, provisions or
conditions on its part to be performed or observed under this Lease.
(f) Tenant shall not place or permit to be placed any vending machines in
the Demised Premises, except with the prior written consent of Owner in each
instance, provided Tenant may install such vending machines if the use thereof
is confined to Tenant's employees.
(g) Tenant shall not occupy any space in the building (by assignment,
sublease or otherwise) other than the Demised Premises, except with the prior
written consent of Owner in each instance.
(h) Tenant agrees that its sole remedies in cases where Owner's
reasonableness in exercising its judgment or withholding its consent or approval
is applicable pursuant to a specific provision of this Lease, or any rider or
separate agreement relating to this Lease, if any, shall be those in the nature
of an injunction, declaratory judgment, or specific performance, the rights to
money damages or other remedies being hereby specifically waived.
(i) The Article headings of this Lease are for convenience only and are not
to be given any effect whatsoever in construing this Lease.
(j) This Lease shall not be binding upon Owner unless and until it is
signed by Owner and an executed copy thereof is delivered to Tenant.
(k) The Schedules and/or Exhibits annexed to this Lease shall be deemed
part of this Lease with the same force and effect as if such Schedules and/or
Exhibits were numbered Articles of this Lease.
(l) If the commencement date hereunder shall commence on any day other than
the first day of a calendar month, the rent for such calendar month shall be
prorated.
(m) Tenant agrees that Tenant will not at any time during said term, either
directly or indirectly, use any 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 Owner or
others in the maintenance and/or operation of the building or any part thereof.
(n) In connection with any work, changes, alterations, additions or other
matters or things undertaken, done or performed by, or on behalf of, Tenant in
accordance with the provisions of Article 3, and any other Article of this Lease
governing the performance by Tenant in the Demised Premises of any such work,
changes, alterations, or additions, or otherwise, the following terms and
provisions shall apply:
(1) All of such work, alterations, installations, additions and
improvements, etc. (including any work initially undertaken by Tenant to prepare
the Demised Premises for Tenant's occupancy) (i) shall only be performed by or
on behalf of Tenant during those hours and days as Owner shall reasonably
designate, and (ii) shall be undertaken and conducted in such manner as to cause
the least possible interference with other tenants at the building. Tenant shall
submit to Owner, by no later than thirty (30) days after the completion of any
work, installations, improvements, additions and alterations, a full set of "as
built" plans and specifications.
(2) Tenant shall retain Owner's engineer/code consultant with respect to
the preparation and filing of Tenant's plans and applications in connection with
Tenant's work.
(3) Tenant shall not perform or permit to be performed any electrical work,
alterations or modifications at the Demised Premises unless (i) the same is
performed by a licensed electrical engineer or contractor, and (ii), if required
by applicable Requirements, plans therefor have been filed with and approved by
the City of New York and the New York Board of Fire Underwriters.
(o) If at the commencement of, or at any time or times during the term of
this Lease, the rents reserved in this Lease shall not be fully collectable by
reason of any Federal, State, County or City law, proclamation, order or
regulation, or direction of a public officer or body pursuant to law, Tenant
shall enter into such agreements and take such other steps (without additional
expense to Tenant) as Owner may request and as may be legally permissible to
permit Owner to collect the maximum rents which may from time to time during the
continuance of such legal rent restriction be legally permissible (and not in
excess of the amounts reserved therefor under this Lease). Upon the termination
of such legal rent restriction prior to the expiration of the term of this
lease, (a) the rents shall become and thereafter be payable hereunder in
accordance with the amounts reserved in this Lease for the periods following
such termination and (b) Tenant shall pay to Owner, if legally permissible, an
amount equal to (1) the rents which would have been paid pursuant to this Lease
but for such legal rent restriction less (2) the rents paid by Tenant to Owner
during the period of periods such legal rent restriction was in effect.
(p) Tenant shall, at Tenant's sole cost and expense, obtain and maintain
licenses and permits, and pay all fees and charges, in connection with the
existence of any air-conditioning equipment and/or any other equipment in or
upon the Demised Premises.
(q) In the event that Owner determines that it shall be necessary to have
Tenant execute any documents (including, but not limited to, a zoning lot merger
agreement, and/or declaration of restrictions) in connection with the creation
of a single zoning lot (for purposes of the transfer or acquisition of air
rights or development rights, or otherwise), or in order to effectuate a zoning
lot merger, Tenant agrees to promptly execute such document or instrument and
return the same (fully acknowledged if and where so required) to Owner within
ten (10) days of Owner's request therefor. Tenant hereby expressly waives and
relinquishes any rights Tenant may have (at law or in equity) in any to any air
rights or development rights, and Tenant disclaims any right to be deemed or
considered a party-in-interest under any zoning lot merger agreement,
declaration of restrictions, or other document relating to the creation of any
combined or new zoning lot affecting the property, or the transfer, sale or
assignment of air rights or development rights.
(r) Tenant shall, at Tenant's expense, cause the inside and outside of all
windows at the Demised Premises to be washed no less than three (3) times each
year. Tenant shall retain Owner's cleaning contractor to provide office cleaning
and window washing services at the Demised Premises provided that said
contractor's rates are competitive with similarly qualified contractors for
similar work in midtown Manhattan first-class office buildings.
(s) If Tenant or (with Tenant's authorization) any subtenant requests
Owner's consent or approval to alterations (including, but not limited to, in
connection with restoration upon casualty and condemnation), subletting or any
other matter or thing requiring Owner's consent or approval under this Lease,
and if in connection with such request Owner seeks the advice of its attorneys,
architect engineer, or other third party, then Owner, as a condition precedent
to granting its consent or approval, may require (in addition to any other
requirements of Owner in connection with such request) that Tenant pay the
actual, reasonable, out of pocket, third party costs of Owner's attorneys,
architect engineer and/or other third party in connection with the consideration
of such request and/or the preparation of any documents pertaining thereto, and
Tenant shall pay such costs within thirty (30) days from demand, whether or not
the requested consent or approval is granted. If requested by Tenant, Owner
shall deliver to Tenant copies of invoices received by Owner with respect
thereto.
(t) Subject to Owner's approval and in accordance with the provisions of
this Lease including, without limitation, Articles 3 and 44 hereof, Tenant may
install (i) a security system in the Demised Premises conditioned upon Owner
being provided, at no charge, with the cards, keys or codes necessary to allow
Building personnel to access the Demised Premises, and (ii) signs within the
Demised Premises (provided that Owner may, in its sole discretion, withhold
consent to any sign that may be viewed from outside of the Demised Premises).
54. Estoppel Certificate
Each party shall, at any time and from time to time, at the request of the
other party, upon not less than five (5) days' notice, if given in person, or
ten (10) days' notice, if given by mail, execute and deliver to the other a
statement certifying that this Lease is unmodified and in full force and effect
[or if there has been any modification, that the same is in full force and
effect as modified and stating the modification(s)] certifying the dates to
which the fixed rent, additional rent and escalation rent have been paid, and
stating whether or not, to the best knowledge of the signer, the other party is
in default in performance of any of its obligations under 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 others with whom the party requesting such certificate may be dealing.
55. Addendum to Article 13
Supplementing and modifying Article 13, entry upon the Demised Premises
pursuant to Article 13 shall be accomplished at such times and in such manner,
and (except in the case of emergency) upon such reasonable notice, which notice
may be oral, as to minimize to the extent practicable (without the necessity of
incurring any additional monetary expense) under the circumstances interference
with Tenant's use of the Demised Premises or inconvenience to Tenant. Except in
the case of emergency or if due to Requirement, and except for access for
cleaning and maintenance and repairs, Tenant shall be given reasonable
opportunity, if practical, to have a representative of Tenant accompany anyone
entering the Demised Premises pursuant to such access. In the case of an
emergency or if due to Requirements, Owner shall use reasonable efforts to
contact Tenant prior to any forcible entry by Owner pursuant to Article 13. 56.
Building Security
Tenant acknowledges that it has been informed that Owner has contracted for
a security guard or security guard service to improve the security of the
building, in consideration of which Tenant shall pay to Owner in accordance with
Owner's statement(s) therefor, as additional rent, together with each monthly
installment of annual rental, Tenant's proportionate share equal to Four &
18/100 (4.18%) percent of the annual cost for such security guard or service
which said costs shall include, without limitation, the cost of employee
benefits, social security taxes and any other expenses incurred by Owner in
connection therewith. In no event shall Owner have any liability to Tenant or
Tenant's employees, guests, or invitees for any damage, loss, or injury claimed
to have resulted from the acts or omissions of any security guard or service,
and Tenant acknowledges that Owner shall have no responsibility for, or
liability connected with, the furnishing or discontinuance of security or guard
service at the building.
57. Holdover Provision
Tenant acknowledges that possession of the Demised Premises must be
surrendered to Owner at the expiration or sooner termination of the term of this
Lease. Tenant agrees to indemnify and save Owner harmless against all costs,
claims, loss , consequential damages, or liability resulting from delay by
Tenant in so surrendering the Demised Premises including, without limitation,
any claims made in connection with succeeding Tenant or prospective Tenant
founded on such delay. The parties recognize and agree that the damage to Owner
resulting from any failure by Tenant to timely surrender possession of the
Demised Premises as aforesaid will be extremely substantial, will exceed the
amount of the monthly rent and additional rent theretofore payable hereunder,
and will be impossible to accurately measure. Tenant, therefore, agrees that if
possession of the Demised Premises is not surrendered to Owner within
twenty-four (24) hours after the date of the expiration or sooner termination of
the Lease, then Tenant shall pay to Owner as liquidated damages for each month
and for each portion of any month during which Tenant holds over in the Demised
Premises after the expiration or sooner termination of the term of this Lease, a
sum equal to two (2) times the aggregate of the fixed annual rent and additional
rent which was payable under this Lease during the last month of the term
hereof. Nothing herein contained shall be deemed to permit Tenant to retain
possession of the Demised Premises after the expiration or sooner termination of
the term of this Lease. The aforesaid provisions of this Article shall survive
the expiration or sooner termination of the term of this Lease.
58. Access to Demised Premises
Owner will provide Tenant with up to fifteen (15) magnetic cards for the
front door of the building for Tenant's use to gain access to the Demised
Premises other than during usual business hours. In addition, if required for
after hours access to the passenger elevator, Owner shall supply Tenant with
fifteen (15) keys to the passenger elevator. Tenant shall advise Owner by
registered or certified mail of the names and home addresses of persons to be
supplied keys to the front door of the building and the elevator. Tenant shall
not permit any duplicates of such keys to be made. Where reasonably practicable,
Tenant shall advise Owner when Tenant will require access other than during
normal business hours, and Owner will provide a self-service passenger elevator
to be available for the use of Tenant in common with other tenants in the
building every day, twenty-four (24) hours per day.
59. Security Deposit Interest
Owner agrees to deposit any sums paid by Tenant as security deposit under
the Lease (pursuant to Article 32 hereof) in a one (1) year Certificate of
Deposit in Owner's name, as selected by Owner at Owner's sole discretion. Any
interest earned on such security, less a one (1%) percent fee to be retained by
Owner for managing the same, shall accrue and be added to the original, or any
subsequent, security deposit hereunder. Subject to Article 32 of the Lease, the
Certificate of Deposit (together with accrued interest thereon) shall be "rolled
over" and reinvested, or a new one (1) year certificate of deposit purchased, at
the expiration of each twelve-month period from the date of original deposit
thereof.
60. Condition of Demised Premises
(a) Tenant has examined the Demised Premises and agrees to accept the same
in their condition and state of repair existing as of the date hereof subject to
normal wear and tear and agrees that the Owner shall not be required to perform
any work, supply any materials or incur any expense to prepare the Demised
Premises for Tenant's occupancy; provided, however, that Owner agrees to (i)
complete, at its own cost and expense, the work set forth in Exhibit B attached
hereto and made a part hereof (hereinafter referred to as "Owner's Work"), and
(ii) within the initial ninety (90) days of the term of the Lease, in connection
with the two (2) westerly bathrooms, Owner shall (w) remove existing partitions
and replace with new partitions, (x) remove existing mechanically suspended
ceiling, repair all walls and ceilings and install new 6"x6" type flourescent
lighting fixtures on stems, (y) replace existing toilets with new toilets, and
(z) furnish and install new vinyl composition tile flooring and paint all walls,
doors and trim. Tenant's Work and work done by Owner under subparagraph (iii)
(x)-(z) shall be coordinated and each shall use reasonable efforts to coordinate
their respective work and avoid undue interference with the work of the other
party. No substitution shall be permitted on building standard work except when
specifically approved in writing. No credit shall be given for omissions or
reductions which Tenant may request to standard installation. Notwithstanding
the foregoing, Tenant may select materials or increase the number of electrical
fixtures, outlets or switches which would otherwise be initially furnished by
Owner provided that (i) such selection is indicated on Tenant's plans prior to
commencement of construction and (ii) such additions or substitutions shall not
increase the cost of construction. Any other changes made after commencement of
construction shall be made by Owner at Owner's option but at Tenant's sole cost
and expense.
(b) Tenant represents that it shall install Building Standard (i)
electrical wiring and receptacles (in accordance with the terms of this Lease),
and (ii) voice and data wiring, which installations shall be coordinated with,
and shall not interfere with or impede, Owner's installation of partitions in
the Demised Premises, provided that such wiring in new and existing Building
Standard partitions shall be concealed, and in all other areas installed in such
a manner as to be as inconspicuous as possible (e.g. at inside corners of walls,
and ceilings at beams).
(c) (i) The term of this Lease shall commence on the date the Demised
Premises are ready for Tenant's occupancy (as provided in subparagraph (ii)
below), or such earlier date as Tenant shall occupy any portion of the Demised
Premises for the conduct of its business (the "Commencement Date") (but Tenant's
occupancy for the purpose of doing its work described in subparagraph (b)
hereinabove shall not be considered occupancy by Tenant for the purposes of this
subparagraph).
(ii) The Demised Premises shall be deemed ready for occupancy on the date
that Owner's Work (referred to in subparagraph (a)(i) hereinabove) shall have
been substantially completed; and it shall be so deemed notwithstanding the fact
that minor or insubstantial details of construction, mechanical adjustment or
decoration remain to be performed, the non-completion of which do not materially
interfere with Tenant's use of the Demised Premises.
(iii) If the occurrence of the conditions set forth in this Section 60(c)
and thereby the making of the Demised Premises ready for occupancy shall be
delayed due to any act or omission of Tenant or any of its employees, agents or
contractors, the Demised Premises shall be deemed ready for occupancy on the
date when they would have been ready but for such delay.
61. Floor Load
Tenant shall not place a load upon any floor of the Demised Premises that
exceeds the floor load per square foot which such floor was designed to carry or
which is allowed by law. Owner reserves the right to prescribe the weight and
position of all safes, business machines, heavy equipment and installations
which Tenant wishes to place in the Demised Premises. Business machines and
mechanical equipment in the Demised Premises shall be placed and maintained by
Tenant, at Tenant's sole cost and expense, and in such manner as shall be
sufficient, in Owner's sole judgment, to absorb and prevent vibration, noise,
annoyance or inconvenience to Owner and other tenants.
62. Brokerage
(a) Each party represents and warrants to the other that it has not dealt
with any broker or person in connection with this Lease except XXXXXXXX REAL
ESTATE CO., INC., located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, which
broker shall be paid its commission in connection with this Lease by Owner. The
execution and delivery of this Lease by each party shall be conclusive evidence
that such party has relied upon the foregoing representation and warranty.
Tenant shall indemnify and hold Owner harmless from and against any and all
claims for commission, fee or other compensation by any other person who shall
claim to have dealt with Tenant in connection with this Lease and for any and
all costs incurred by Owner in connection with such claims, including, without
limitation, reasonable attorneys' fees and disbursements. Owner shall indemnify
and hold Tenant harmless from and against any and all claims for commission, fee
or other compensation by any person who shall claim to have dealt with Owner in
connection with this Lease and for any and all costs incurred by Tenant in
connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements. The provisions of this Article shall survive
the expiration or prior termination of this Lease.
(b) Tenant agrees that in the event it shall during the term of this Lease,
seek to lease from the Owner any additional premises in the building or to
extend or renew this Lease, it shall seek to do so directly from the Owner
without the intervention of any broker or brokers and, if Owner and Tenant shall
enter into any lease with respect to any such premises, Tenant shall be required
to indemnify and hold harmless Owner from and against any and all claims or
demand for brokerage commissions in connection therewith. Tenant shall have the
right, notwithstanding the foregoing, to engage the services of a broker in
connection with any leasing referred to in this Article 62, provided, however,
that in such event Tenant shall be solely responsible for the payment of any and
all brokerage commissions in connection therewith and shall pay the same.
63. Air-Conditioning Equipment
(a) It is understood and agreed that the 20-ton Trane air-conditioning
unit, Model #SAU-C106-D, Serial #CA5L-50939 (the "Air-Conditioning Unit")
presently serving the Demised Premises shall remain Owner's property; provided,
however, that Tenant shall, nevertheless, keep maintain and repair, restore and
replace the Air-Conditioning Unit and all of the ducts, dampers, registers,
grilles and appurtenances utilized in connection therewith; and, in addition,
Tenant shall at all times during the term hereof, contract for and maintain
regular services of said Air-Conditioning Unit and related equipment pursuant to
an all-labor contract with a recognized maintenance company and shall forward to
the Owner duplicate executed original copies of such contract and all renewals
and modifications thereof. Said contract shall include the thorough overhauling
of the system and chemical cleaning of the condenser coils at least once each
year and shall be kept in full force and effect during the term of this Lease by
Tenant. If Tenant fails to make such repairs, restoration or replacements to,
and maintain such Air-Conditioning Unit and related equipment, or if Tenant
fails to obtain or keep the aforesaid service contract in force and effect, the
same may be made, performed, obtained or maintained by Owner at the expense of
Tenant and such expense shall be collectible as additional rent and shall be
paid by Tenant within fifteen (15) days after rendition of a xxxx therefor. Any
restoration or replacement of all or any part of the Air-Conditioning Unit and
related equipment shall be in quality and class equal to the original work or
installations. Tenant shall retain Owner's air-conditioning service contractor
provided that said contractor's rates are competitive with similarly qualified
contractors for similar work in midtown Manhattan first-class office buildings.
Said equipment shall be delivered to the Tenant in good operating order. A
letter from the Owner's air-conditioning service contractor to such effect shall
be deemed compliance therewith. Owner represents that the Air-Conditioning Unit
will be in working order on the Commencement Date.
(b) The Air-Conditioning Unit will be capable of maintaining seventy eight
(78) degrees Fahrenheit inside when outside conditions are ninety five (95)
degrees Fahrenheit, provided that (i) the electrical load in the Demised
Premises does not exceed four (4) xxxxx of electrical consumption per square
foot of usable area in each such area for all purposes (including light and
power), and (ii) the occupancy of the Demised Premises does not exceed one (1)
person per one hundred (100) square feet of usable area therein.
(c) Provided and upon condition that the Lease is in full force and effect
and the Tenant has been in full and faithful compliance with all of the terms
and conditions contained herein, including but not limited to all of the
provisions of subparagraph (a) of this Article 63, in the event that any of the
compressors must be replaced during the term hereof, the Tenant shall furnish
Owner with written notice setting forth the need for such replacement, and upon
receipt of such notice, Owner will, at its option, either direct Tenant to
replace such compressor with a new one (in which event Owner will reimburse the
Tenant for the reasonable cost for said replacement) or Owner will, at its
option, direct its air-conditioning contractor to replace said compressor. At
such time as said new compressor is installed, the party installing same shall
deliver to the other party, Owner or Tenant as the case may be, copies of all
warranties and guarantees furnished with the compressor and the Owner shall be
relieved of any responsibility in regard to said compressor.
64. Fixed Rent
Notwithstanding anything contained herein to the contrary, the fixed annual
installments of rental shall be payable as follows:
(a) EIGHTY-FOUR THOUSAND & 00/100 ($84,000.00) DOLLARS per year
during the period commencing on the Commencement Date, and
ending June 30, 2003;
(b) EIGHTY-FIVE THOUSAND SIX HUNDRED EIGHTY & 00/100 ($85,680.00)
DOLLARS per year during the period commencing July 1, 2003,
and ending June 30, 2004;
(c) EIGHTY-SEVEN THOUSAND THREE HUNDRED NINETY-FOUR & 00/100
($87,394.00) DOLLARS per year during the period commencing
July 1, 2004, and ending June 30, 2005;
(d) EIGHTY-NINE THOUSAND ONE HUNDRED FORTY-ONE 00/100 ($89,141.00)
DOLLARS per year during the period commencing July 1, 2005,
and ending June 30, 2006;
(e) NINETY THOUSAND NINE HUNDRED TWENTY-FOUR 00/100 ($90,924.00)
DOLLARS per year during the period commencing July 1, 2006,
and ending June 30, 2007;
(f) NINETY-TWO THOUSAND SEVEN HUNDRED FORTY-THREE & 00/100
($92,743.00) DOLLARS per year during the period commencing
July 1, 2007, and ending June 30, 2008;
(g) NINETY-FOUR THOUSAND FIVE HUNDRED NINETY-EIGHT & 00/100
($94,598.00) DOLLARS per year during the period commencing
July 1, 2008, and ending June 30, 2009;
(h) NINETY-SIX THOUSAND FOUR HUNDRED NINETY & 00/100 ($96,490.00)
DOLLARS per year during the period commencing July 1, 2009,
and ending December 31, 2009.
65. Rent Credit
It is understood and agreed that the Owner shall credit Tenant in the sum
of THREE THOUSAND FIVE HUNDRED & 00/100 ($3,500.00) DOLLARS toward each monthly
installments of fixed annual rent due on September 1, 2002, through and
including, June 1, 2003, provided that Tenant has been in full compliance of all
of the terms and conditions of the Lease including, but not limited to, the
timely payment of rent and additional rent.
66. As further security for the faithful performance and observance by Tenant of
the terms, provisions and conditions of the Lease, Tenant shall cause the
Guaranty, attached hereto and made a part hereof as Exhibit C, to be executed
and delivered simultaneously with the execution of this Lease.
