LEASE
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LEASE, made this 15th day of December, 1998, between:
XXXX XXXXXXXX, D/B/A MONTEBELLO PARK
(hereinafter referred to interchangeably as "Lessor, Landlord, or
Owner")
AND
SEAK, INTERNATIONAL
(hereinafter referred to interchangeably as "Lessee or Tenant")
1. DESCRIPTION.
Lessor hereby leases to Lessee and Lessee hereby hires from Lessor the
following space:
Approximately 633 gross square feet (hereinafter referred to as the
"Demised Premises or Premises") as shown on the plan or plans,
initialed by the parties hereto, marked "Exhibit A" and made a part of
this Lease in the building located at 00 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxx
Xxxx 00000 (hereinafter referred to as the "Building"), which is
situated on that certain parcel of land (hereinafter referred to as the
"Office Building Area"), together with the right to use in common with
other Lessees of the Building, their invitees, customers, and
employees, the lobby, stairways, elevators, if any, halls, toilet and
sanitary facilities; and all other general common facilities contained
in the Building and such parking as in Paragraph 41, provided. The
above computation includes 2.51% percent of the total building area.
2. TERM.
The premises are leased for a term of THREE(3) YEARS to commence on
January 1, 1999 and end at 12:00 midnight on December 31, 200l provided
that if Lessor, for any reason whatsoever, cannot deliver possession of
the Premises to Lessee at the commencement of the agreed term, this
Lease shall not be void or voidable, nor shall Lessor be liable to
Lessee for any loss or damage resulting therefrom, but, in that event,
the Lease term shall be for the full term as specified above to
commence from and after the date Lessor shall have delivered possession
of the Premises and to terminate midnight of the day immediately
preceding said third anniversary of the commencement date and Lessor
and Lessee shall, by a writing signed by the parties, ratify and
confirm said commencement and
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termination dates. Notwithstanding anything to the contrary contained
herein, if the Premises are not delivered to Lessee on or before
January 1, 1999 for any reason whatsoever (except for the reasons due
to the acts or omissions of Lessee), then Lessee may cancel this Lease
on thirty (30) days prior notice to Lessor of its intent to do so,
which notice may be given on or after January 1, 1999 and unless
possession is delivered prior to the expiration of said thirty (30) day
period this Lease shall terminate, and any advance rent and security
shall he promptly returned to Lessee.
If permission is given to Tenant to enter into the possession of 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 terms, covenants, conditions, and
provisions of this Lease, except as to the covenant to pay rent. The
provisions of this article are included to constitute "an express
provision to the contrary" within the meaning of Section 223a of the
New York Real Property Law.
3. BASIC RENT.
The Lessee shall pay to the Lessor during the term, basic rent in the
amount of THIRTEEN THOUSAND, SIX HUNDRED NINE DOLLARS AND NO 50/100
($13,609.50), per annum, or FORTY THOUSAND, EIGHT HUNDRED TWENTY-EIGHT
DOLLARS AND 50/100 ($40,828.50) for the entire term (hereinafter
referred to as "rent or basic rent"), payable in equally monthly
installments of ONE THOUSAND, ONE HUNDRED THIRTY-FOUR DOLLARS AND
12/100 ($1,134.12) on the first day of each month.
The rent shall be due and payable on the first day of each calendar
month, in such coin of currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts.
The basic rent shall accrue at the rate as described above, except that a
proportionately lesser sum may be paid for the first and last month of the term
of this Lease, if the term commences on the date other than the first day of the
month. The basic rent shall be payable at the office of the Lessor, at the
address set forth, or as may otherwise be directed by notice from the Lessor to
the Lessee. Lessor acknowledges receipt from Lessee of the sum of ONE THOUSAND
EIGHT HUNDRED FORTY-FOUR DOLLARS AND 05/100 ($l,844.05) which represents the
first month's rent, two months security, LESS A CREDIT of ONE THOUSAND, FIVE
HUNDRED FIFTY-EIGHT DOLLARS AND 32/100 ($1,558.32) for security under the
Tenant's existing lease from a different space in the building.
Upon the expiration or other termination of the term of this Lease,
Tenant shall quit and surrender to Owner the Demised Premises, broom cleat, in
good order and condition, ordinary wear and tear, damage which Landlord is
required to repair damages which Tenant is not required to repair as provided
elsewhere in this Lease excepted, and Tenant shall remove all its property.
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,
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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.
4. USE AND OCCUPANCY.
Lessee shall use and occupy the Premises as a management consulting
company.
5. COVENANT TO PAY RENT.
Lessee shall pay basic tent in equal monthly installments, and any
additional rent, as hereinafter provided, to Lessor at Lessor's above
stated address, or at such other place as Lessor may designate in
writing, without demand and without counterclaim, deduction, or set
off.
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, and such default remains uncured beyond the
expiration of the applicable grace period Owner may, at Owner's option
and without notice to Tenant, add the amount of such arrears to any
monthly installment of rent payable hereunder and the same shall be
payable to Owner as additional rent.
6. CARE AND REPAIR OF PREMISES.
Lessee shall commit no act of waste and shall take good care of the
Premises and the fixtures and appurtenances therein, and shall, in the
use and occupancy of the Premises, conform to all laws, orders, and
regulations of the federal, state, and municipal governments or any of
their departments. Lessor shall make all necessary repairs to the
Premises, except where the repair has been made necessary by misuse or
neglect by Lessee or Lessee's agents, servants, visitors, or licensees.
All improvements made by Lessee to the Premises, which are so attached
to the Premises that they cannot be removed without material injury to
the Premises, shall become the property of Lessor upon installation.
Not later than the last day of the term, Lessee shall, at Lessee's
expense, remove all of Lessee's personal property and those
improvements made by Lessee which have not become the property of the
Lessor, including trade fixtures, cabinet work, movable paneling,
partitions, and the like; repair all injury done by or in connection
with the installation of removal of said property and improvements; and
surrender the Premises in as good condition as they were at the
beginning of the term, reasonable wear and tear, damage required to be
repaired by Landlord, damage not required to be repaired by Tenant and
damage by fire, the elements, casualty, or other cause not due to the
misuse or neglect by Lessee, Lessee's agents, servants, visitors, or
licensees, excepted. All other property of Lessee
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remaining on the Premises after the last day of the term of this Lease
shall be conclusively deemed abandoned and may be removed by Lessor,
and Lessee shall reimburse Lessor for the cost of such removal. Lessor
may have any such property stored at Lessee's risk and expense.
Notwithstanding the foregoing, Tenant shall have no obligation to
perform any structural alterations or alternations which affect any
building system in order to comply with any laws.
Notwithstanding anything to the contrary contained herein, Lessee shall
have the right to require that Lessor elect, prior to the installation
of any item not becoming Lessor's property pursuant to this Paragraph,
whether Lessor will require the removal of any such item or items by
Lessee at the end of the Lease and Lessor shall notify Lessee of its
election without unreasonable delay.
7. WINDOW CLEANING.
Tenant till not clan nor require, permit, suffer, or allow any window
in the Disclosed Premises to be cleaned from the outside in violation
of Section 202 of the Labor Law or any other applicable law or of the
Rules of any Board or body having or asserting jurisdiction hereof.
8. ALTERATIONS, ADDITIONS, OR IMPROVEMENTS.
Lessee shall not, without first obtaining the written consent of
Lessor, which consent will not be unreasonably withheld or delayed,
make any, additions, or improvements in, to, or about the Premises.
Subject to the prior written consent of Owner, and co the provisions of
this article. Tenant, at Tenant's expense may make alterations,
installations, additions, or improvements which are nonstructural and
which do not affect utility services or plumbing and electricity lines,
in or to the interior of the Demised Premises by using contractors or
mechanics first approved by Owner. Tenant shall, before making any
alterations, additions, installations, or improvements, at its expense,
obtain all permits, approvals, and certificates required by any
governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals, and certificates to Owner,
and Tenant agrees to carry and will cause Tenant's contractors and
subcontractors to carry such xxxxxxx'x compensation, general liability,
personal and property damage insurance, as Owner may reasonably
require. Notwithstanding the foregoing, there shall generally be no
alterations or changes to this space, this being designated as "the
chapel space", without the express written consent of the Landlord.
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9. ACTIVITIES INCREASING FIRE INSURANCE RATES.
Lessee shall not do or suffer anything to be done on the Premises which
will increase the rate of fire insurance on the Building.
Tenant shall not do or permit any w 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 with
respect to the Demised Premises or the Building of which the Demised
Premises form a part, or which shall or might subject Owner to any
liability or responsibility to any person or for property damage.
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 or 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 when the
premises were occupied. Tenant shall pay all costs, expenses, fines,
penalties or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this article and if
by reason of such failure 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
therefor 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" of rate for the Building or
Demised Premises issued by the New York Fire Insurance Exchange, or
other 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.
10. ABANDONMENT.
Lessee shall not, without first obtaining the written consent of the
Lessor, abandon the Premises, or allow the Premises to become vacant or
deserted. Lessor shall consent to Lessee abandoning the Premises or
allowing the same to become vacant or deserted provided Lessor's
insurance is nor jeopardized and provided further that any additional
premiums resulting therefrom are borne by Lessee.
11. ASSIGNMENT AND SUBLEASE.
Lessee may assign or sublease the within Lease to any party subject to
the following:
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A. In the event that the Lessee desires to sublease, or assign the
Premises to any other party, the terms and conditions of such sublease
or assignment shall be communicated to the Lessor in writing prior to
the effective date of any such sublease or assignment, and, the Lessor
shall have the option, exercisable in writing to the Lessee, to
recapture the within Lease so that such prospective sublessee or
assignee shall then become the sole Lessee of Lessor hereunder and the
within Lessee shall be fully released from any and all obligations
hereunder. Lessor shall have fifteen (15) business days after
submission of the proposed sublease or assignment complete in all
respects and conditioned only on Lessor's approval to elect the rights
afforded Lessor pursuant to this Subparagraph A.
B. In the event that the Lessor elects not to recapture the Lease as
hereinabove provided, the Lessee may nevertheless assign this Lease or
sublet the whole or any portion of the Premises, subject to the
Lessor's prior written consent, which consent shall not unreasonably
withheld on the following terms and conditions:
(1) The Lessee shall provide to the Lessor the name and address of
the assignee or sublessee.
(2) The assignee shall assume, by written instrument, all of the
obligations of this Lease, and a copy of such assumption
agreement shall be furnished to the Lessor within ten (10)
days of its execution.
(3) The Lessee and each assignee shall be and remain liable for
the observance of all of the covenants and provisions of this
Lease including, but not limited to, the payment of rent
reserved herein, through the entire term of this Lease.
(4) In any event, the acceptance by the Lessor of any rent from
the assignee or from any of the subtenants or the failure of
Lessor to insist upon strict performance of any of the terms,
conditions, and covenants herein shall not release the Lessee
herein, nor any assignee assuming this Lease, from any and all
of the obligations herein during and for the entire term of
this Lease.
C. Transfer of the majority of the stock of a corporate Tenant shall be
deemed an assignment.
D. If Tenant assigns and/or sublets the space, as described herein, with
Landord's consent, and the sublessee elects to exercise the option to
renew provision described herein, then for the second term of the
lease, the primary tenants liability shall cease upon said initial
term.
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12. COMPLIANCE WITH RULES AND REGULATIONS.
Lessee shall observe and comply with the rules and regulations
hereinafter set forth in Exhibit B which are made a part hereof and
with such further reasonable rules and regulations as Lessor may
prescribe, on written notice to the Lessee, for the safety, care, and
cleanliness of the Building and the comfort, quiet, and convenience of
other occupants of the Building. Lessee 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. Lessor
reserves the right to prescribe the weight and position of all safes
and other heavy machines, and mechanical equipment. Such installations
shall be placed and maintained by Lessee, at Lessee's expense, in
settings sufficient, in Lessor's reasonable judgment, to absorb and
prevent vibration, noise, and annoyance.
In the event Tenant disputes the reasonableness of additional rule or
regulation hereinafter imposed or adopted by the Landlord, the parties
agree to submit the question of reasonableness of such rule or
regulation to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the
parties hereto. If there is any conflict between this Lease and any
rule or regulation, the terms of this Lease will prevail.
13. DAMAGE TO THE BUILDING.
If the Building is damaged by fire or other cause to such extent that
the cost or restoration, as reasonably estimated by Lessor, will equal
or exceed twenty-five (25%) percent of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence of the
damage, then, Lessor may, no later than the sixtieth (60th) day
following the damage, give Lessee a notice of election to terminate
this Lease, or, if the Premises shall not be reasonably usable for the
purpose for which they are leased hereunder for a period in excess of
90 days, then Lessee may, no later than the sixtieth (60th) day
following the damage, give Lessor a notice of election to terminate
this Lease. In either said event of election, this Lease shall be
deemed to terminate on the thirtieth (30th) day after the giving of
said notice, and lessee shall surrender possession of the Premises
within a reasonable time thereafter, and the basic rent, and any
additional rent paid for any period beyond said date shall be repaid to
Lessee. If the cost of restoration as estimated by Lessor shall amount
to less than twenty-five (25%) percent of replacement value of the
Building, or if, despite the cost, Lessor does not elect to terminate
this Lease, Lessor shall restore the building and the Premises with
reasonable promptness, subject to delays beyond Lessor's control, and
delays in the making of insurance adjustments between Lessor and his
insurance carrier, and Lessee shall have no right to terminate this
Lease. Lessor need not restore fixtures and
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improvements owned by Lessee.
Tenant waives the provisions of Section 227 of the Real Property Law
and agrees that the provisions of this Paragraph shall govern and
control in lieu thereof.
In any case in which use of all or any portion the Premises is affected
by any damage to the Building, there shall be either an abatement or an
equitable reduction in basic rent depending on the period for which and
the extent to which the Premises are not reasonably usable for the
purpose for which they are leased hereunder. The words "restoration"
and "restore" as used in this Paragraph 12 shall include repairs. If
the damage results from the fault of the Lessee, or Lessee's agents,
servants, visitors, or licensees, Lessee shall not be entitled to any
abatement or reduction in such basic rent.
The Lessor or its agents shall not be liable for any damage to property
of the Tenant or of others entrusted to employees of the Building, nor
for loss of or damage to persons or property resulting from any cause
of whatsoever nature, unless caused by or due to the negligence or
willful misconduct of Owner, its agents, servants, or employees. Owner
or its agents will not be liable for any such damage caused by other
Tenants or persons in, upon or about said Building or caused by
operations in construction 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 (or 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 form its obligations hereunder
not constitute an eviction. Tenant shall indemnify and save harmless
Owner against and from liabilities, obligations, damages, penalties,
claims, costs, and expenses for which Owner shall not be reimbursed by
insurance, including reasonable attorneys 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 negligence 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 by counsel selected
by Tenant and approved by Owner in writing, such approval not to be
unreasonably withheld.
14. WAIVERS OF SUBROGATION.
Notwithstanding the provision of Paragraph 12 of this Lease, in any
event of loss or damage to the Building, the Premises and/or any
contents, each
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party shall look first to any insurance in its favor before making any
claim against the other party, and to the extent possible without cost,
each party shall obtain, for each policy of insurance, provisions
permitting waiver of any claim against the other party for loss or
damage within the scope of such insurance, and each party, to such
extent as permitted by law and, if possible, without any additional
premiums, for itself and its insurers waives all such insured claims
against the other party, by way of Subrogation or otherwise.
The foregoing release and waiver shall be enforced only if both
releasors' insurance policies contain a clause providing that such a
release or waiver shall not invalidate the insurance.
15. EMINENT DOMAIN.
If Lessee's use of the Premises is adversely affected due to the taking
by eminent domain of (a) the Premises or any part thereof or any estate
therein; or (b) any other part of the Building or any part of the
parking area; then, in either event, this Lease shall terminate on the
date when title vests pursuant to such taking. The rent, and any
additional rent, shall be apportioned as of said termination date and
any basic or additional rent paid for any period beyond said date shall
be repaid to Lessee. Lessee shall not be entitled to any part of the
award for such taking or any payment in lieu thereof, but Lessee may
file a claim for any taking of fixtures and improvements owned by
Lessee which have not become the Lessor's property, and for moving
expenses. In the event of a partial taking which does not effect a
termination of this Lease, but does deprive Lessee of the use of a
portion of the Demised Premises, there shall either be an abatement or
an equitable reduction of the basic rent, and an equitable adjustment
of the Base Costs depending on the period for which and the extent to
which the Premises so taken are not reasonable usable for the purposes
for which they are leased hereunder.
16. INSOLVENCY OF LESSEE.
Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Lessee, or (b) a general assignment
by Lessee for the benefit of creditors, or (c) any action taken or
suffered by Lessee under any insolvency or bankruptcy act, shall
constitute a default of this Lease by lessee, and Lessor may terminate
this Lease forthwith, and upon written notice of such termination,
Lessee's right to possession of the Demised Premises shall cease, and
Lessee shall then quit and surrender the Premises to Lessor, but Lessee
shall remain liable as hereinafter provided in Paragraph 17.
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17. LESSOR'S REMEDIES ON DEFAULT.
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 in violation of this
Lease; 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 this Lease be
rejected under Section 235 of Title 11 of the U.S. Code (bankruptcy
code); or if Tenant shall fail to move into or take possession of the
premises within thirty (30) days after the commencement of the term of
this Lease, then, in any one or more of such events, upon Owner serving
a written fifteen (15) days notice upon Tenant specifying the nature of
said default and upon the expiration of said fifteen (15) 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 fifteen
(15) day period, and if Tenant shall not have diligently commenced
during such default within such fifteen (15) 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. If the notice provided above
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 and such default remains
uncured for ten 10) days after written notice from Landlord; then and
in any 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 institute
legal proceedings to that end. If Tenant shall make default hereunder
beyond the expiration of the applicable grace period 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. If this Lease shall have been so terminated by Lessor
pursuant to Paragraph 15 or 16 hereof, Lessor may, at any time
thereafter, resume possession of the Premises by any lawful means and
remove Lessee or other occupants and their effects.
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IF LANDLORD IS REQUIRED TO PROCESS FOR COLLECTION OR POSSESSION OR IS
CAUSED TO EXPEND LEGAL RESOURCES AS A RESULT OF LESSEE'S DEFAULT UNDER
THIS LEASE, THEN LESSEE SHALL BE RESPONSIBLE FOR ALL REASONABLE LEGAL
FEES AND COSTS AS A RESULT OF SAID DEFAULT.
18. DEFICIENCY.
In any case where Lessor has recovered possession of the Premises by
reason of Lessee's default, Lessor may, at Lessor's option, occupy the
Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining premises, or otherwise changed or
prepared for reletting, and may relet the Premises or any part thereof
as agent of Lessee or otherwise, for a term or terms to expire prior
to, at the same time as, or subsequent to, the original expiration date
of this Lease, at Lessor's option, and receive the rent thereof. Rent
so received shall be applied first to the payment of such expenses as
Lessor may have incurred in connection with the recovery of possession,
redecorating, altering, dividing, consolidating with other adjoining
premises, or otherwise changing or preparing for reletting, and the
reletting, including brokerage and reasonable attorney's fees, and then
to the payment of damages in amounts equal to the rent hereunder and to
the costs and expenses of performance of other covenants of the Lessee
as herein provided.
Lessee agrees, in any such case, whether or not Lessor has relet, to
pay to Lessor damages equal to the basic and additional rent and other
sums herein agreed to be paid by Lessee, less the net proceeds of the
reletting, if any, as ascertained from time to time, and the same shall
be payable by Lessee on the several rent days above specified. Lessee
shall not be entitled to any surplus accruing as a result of such
reletting. In reletting the Premises, as aforesaid, Lessor may grant
rent concessions, and Lessee shall not be credited therewith. No such
reletting shall constitute a surrender and acceptance or be deemed
evidence thereof. If Lessor elects, pursuant hereto, actually to occupy
and use the Premises or any part thereof during any part of the balance
of the term as originally fixed or since extended, there shall be
allowed against the Lessee's obligation for rent or damages as herein
defined, during the period of Lessor's occupancy, the reasonable value
of such occupancy, not to exceed in any event the basic and additional
rent herein reserved and such occupancy shall not be construed as a
release of Lessee's liability hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default beyond the expiration of the
applicable grace period, Lessor may, at Lessor's option and at any time
thereafter, and without notice or action by Lessor, and without
prejudice to any other rights or remedies it may have hereunder or at
law or equity, become entitled to recover from Lessee, as damages for
such breach, in addition to such other sums herein agreed to be paid by
Lessee, to the date
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of re-entry, expiration and/or dispossess an amount equal to the
difference between the rent and additional rents reserved in this Lease
from the date of such default to the date of expiration of the original
term demised and the then fair and reasonable rental value of the
Premises for the same period. Said damages shall become due and payable
to the Lessor immediately upon such breach of this Lease and without
regard to whether this Lease be terminated or not, and if this Lease be
terminated, without regard to the manner in which it is terminated. In
the computation of such damages, the difference between any
installments of rent (basic and additional) thereafter becoming due and
the fair and reasonable rental value of the Premises for the period for
which such installment was payable shall be discounted to the date of
such default at the rate of a three year T-xxxx.
The failure of Owner to relet the premises or any parts thereof shall
not release or affect Tenant's liability for damages. In computing
damages there shall be deducted from the net proceeds of any reletting
such expenses as Lessor may incur in connection with reletting, such as
legal expenses, attorneys' fees, brokerage, advertising, and for
keeping the demised premises in good order or for preparing the same
for reletting. Owner shall in no event be liable in any way whatsoever
for failure to relet the demised premises, or in the event that the
demised premises are relet for failure to collect the rent thereof
under such reletting. In the event of a breach or threatened breach by
Tenant of any of the covenants or provisions in this Lease, lessor
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.
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
Lessee hereby waives all right of redemption to which Lessee or any
person claiming under Lessee might be entitled by any law now or
hereafter in force.
19. SUBORDINATION OF LEASE.
This Lease shall be subject and subordinate to any underlying leases
and to any first mortgage and trust deed which may now or hereafter
affect such leases or the real property of which the Premises form a
part, and also to all renewals, modifications, consolidations, and
replacements of said underlying leases and said first mortgage and
trust deed. Although no instrument or act on the part of Lessee shall
be necessary to effectuate such subordination, Lessee will,
nevertheless, execute and deliver such further instruments confirming
such subordination of this Lease as may be reasonably desired by the
holders of said first mortgage and trust deeds or by any of the Lessors
under such underlying leases. If any underlying lease to which this
Lease is subject terminates, Lessee shall, on timely
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request, attorn to the owner of the reversion. Lessor shall use its
best efforts to obtain a non-disturbance agreement from the holder of
any underlying leases, first mortgage, or trust deed.
If Lessor applies any part of said deposit to cure any default
of Lease, Lessee shall, on demand, deposit with Lessor the
amount so applied so that Lessor shall have the full deposit
on hand at all times during the term of this Lease. Lessor, in
the event that the Demised Premises are sold, shall transfer
and deliver the security, as such, to the purchaser of the
Demised Premises and shall notify Lessee thereof, and
thereupon Lessor shall be discharged from any further
liability in reference thereto. Lessee covenants and agrees
that, upon the increase in rental pursuant to this Lease, or
any option period, Lessee shall deposit with Lessor such
additional security to the number of months security required.
Nothing in this Paragraph shall require Lessor to place security
deposit funds into an escrow account. Lessor's sole obligation is to
return said funds at the expiration of the lease term, assuming that
there is no legitimate setoff for same.
20. SECURITY DEPOSIT.
Lessee shall deposit with the Lessor on the signing of this Lease, the
sum of $709.93, which represents additional security representing two
(2) months total security, giving a credit of $1,558.32 from the
Tenant's previous Lease. (The total security requirement is $2,268.25).
If Lessor applies any part of said deposit to cure any default of
Lessee, Lessee shall, on demand, deposit with Lessor the amount so
applied so that Lessor shall have the full deposit on hand at all times
during the term of this Lease. Lessor, in the even that the Demised
Premises are sold, shall transfer and deliver the security, as such, to
the purchaser of the Demised Premises and shall notify Lessee thereof,
and thereupon Lessor shall be discharged from any further liability in
reference thereto. Lessee covenants and agrees that, upon the increase
in rental pursuant to this Lease, or any option period, Lessee shall
deposit with Lessor such additional security to the number of months
security required.
Nothing in this Paragraph shall require Lessor to place security
deposit funds into an escrow account without interest. Lessor's sole
obligation is to return said funds at the expiration of the lease term,
assuming that there is no legitimate setoff for same.
21. RIGHT TO CURE LESSEE'S BREACH.
If Lessee breaches any covenant or condition of this Lease, Lessor may,
on reasonable notice to Lessee (except that no notice need be given in
case
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of emergency), cure such breach at the expense of Lessee and the
reasonable amount of all expenses, including attorneys' fees, incurred
by Lessor in so doing (whether paid by Lessor or not) shall be deemed
additional rent payable. Said rent shall be payable within fifteen days
of rendition of any billing statement to tenant therefore.
22. MECHANIC'S LIENS.
Lessee shall, within fifteen (15) days after notice from Lessor,
discharge or satisfy by bonding or otherwise, any mechanic's liens for
materials or labor claims to have been furnished to the Premises on
Lessee's behalf.
23. NOTICES.
Any notice by either party to the other shall be in writing and shall
be deemed to have been duly given only if delivered personally or sent
by registered mail or certified mail return receipt requested in a
postpaid envelope addressed, if to Lessee, at the above described
Building with a copy to:___________________________________________ or,
to Lessor as specified in this Lease, or to either at such other
address as Lessor or Lessee, respectively, may designate in writing.
Notice shall be deemed to have been duly given, if delivered
personally, on delivery thereof, and if mailed, upon the tenth (10th)
day after mailing thereof. Facsimile transmittals with accompanying
confirmation statements shall be proper notice under the Lease.
24. NO WAIVER.
The failure of either party to insist on strict performance of any
covenant or condition hereof, or to exercise any option herein
contained, shall not be construed as a waiver of such covenant or
condition or option in any other insurance. This Lease cannot be
changed or terminated orally.
Specifically, the failure of Lessor 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 and Regulations, set forth or
hereafter adopted by Lessor, 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 Lessor 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 Lessor, unless such waiver be in writing
signed by Lessor. No payment by Tenant or receipt by Lessor 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
Lessor may accept such check or
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payment without prejudice to Lessor's right to recover the balance of
such rent or pursue any other remedy in this Lease provided. No act or
thing done by Lessor or Lessor'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 sin writing
signed by Lessor. no employee of Lessor or Lessor's agent shall have
any power to accept the keys of said premises prior to the termination
of the lease and the delivery of the keys to any such agent or employee
shall not operate as a termination of the Lease or a surrender of the
Premises.
25. INTERRUPTION OF SERVICES OR USE.
Interruption or curtailment of any service maintained in the Building,
if caused by strikes, mechanical difficulties, government preemption in
connection with a national emergency, conditions of supply and demand
affected by any governmental emergency or any causes beyond Lessor's
control, whether similar or dissimilar to those enumerated, shall not
entitle Lessee to any claim against Lessor or to any abatement in rent,
and shall not constitute constructive or partial eviction, unless
Lessor fails to take such measures as may be reasonable in the
circumstances to restore the service without undue delay. If the
Premises are rendered untenantable in whole or in part, for a period of
five (5) consecutive business days, by the making of repairs,
replacement, or additions, other than those made with Lessee's consent
or caused by misuse or neglect by Lessee or Lessee's agents, servants,
visitors, or licensees or because of Landlord's failure to perform its
obligations hereunder, there shall be a proportionate abatement of rent
during, from and after said fifth (5th) consecutive business day and
continuing for the period of such untenantability. Notwithstanding the
above, Lessor 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 provided that Tenants access to the
premises and Tenants use of the premises is not adversely affected 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's
making any repairs in the Building or any such alterations, additions,
and improvements, provided, however, that said alterations shall be
done with a minimum of inconvenience to Tenant and Landlord shall
pursue any alterations with due diligence. Furthermore, Tenant shall
not have any claim against Owner by reason of Owner's imposition of
such 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.
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26. CONDITIONS OF LESSOR'S LIABILITY.
Lessee shall not be entitled to claim a constructive eviction from the
Premises unless Lessee shall have first notified Lessor in writing of
the condition or conditions giving rise thereto, and, if the complaints
be justified, unless Lessor shall have failed within a reasonable time
after receipt of such notice to remedy, or commence and proceed with
due diligence to remedy, such condition or conditions.
27. RIGHT TO SHOW PREMISES.
Lessor may show the Premises to prospective purchasers and mortgagees;
and during the six (6) months prior to termination of this Lease, to
prospective tenants, during business hours on reasonable notice to
Lessee.
28. NO OTHER REPRESENTATIONS.
No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some
future writing signed by the party making such representation(s) or
promise(s). Specifically, 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 operations, or any other
matter or thing affecting or related to the Premises 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
except as otherwise provided in Article 33 agrees to take the same "as
is" and acknowledges that the taking of possession of the Demised
Premises by Tenant shall be conclusive evidence that the said Premises
and 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 except as otherwise provided in Article 33. All
understandings and agreements heretofore made between the parties
hereto are merged in this Lease, which alone fully and completely
expresses the agreement between the Owner and Tenant and any executory
agreement hereafter made shall be ineffective to change, modify,
discharge, or effect an 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. Landlord does represent that there is an existing
Certificate of Occupancy for an office building use permitting such
uses in the Premises.
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29. LESSOR OPTION TO BUY OUT LEASE.
If the Lessor shall sell the building of which this leased premises
forms a part, then landlord shall have the option to within thirty (30)
after the date of such sale to buyout the Lessee's lease, and Lessee
shall be obligated to vacate the premises in accordance with the terms
and conditions promulgated herein. These terms and conditions are:
A. Lessor must provide at least four (4) months written notice, either by
Certified Mail Return Receipt OR by personal delivery for one (1) year
lease Lessee's and six (6) months notice to Lessees whose leases exceed
one year. A Lessee with an option to renew shall be considered a "more
than one year Lessee." A Lease with one year or less remaining on its
lease with no option to renew shall be considered a "one year lease"
Lessee.
B. The buyout price of a more than one year Lessee shall be equal to the
first year's base rental plus Tenants moving cost; the buyout price for
a one year Lessee shall be one-half (1/2) of the first years base
rental.
C. Payment shall be made by Lessor tendering certified bank funds equal to
10% of the buyout price into an escrow account to be maintained by a
title agency licensed by the State of New York (or some other third
party fiduciary acceptable to both parties), at the date of initial
notice to the Lessee. The balance of said funds shall be tendered on
the date Lessee vacates the premises, provided that no funds are to be
released to Lessee by the escrow agent until such time as Lessee does
actually vacate, AND Lessee executes a release in form reasonably
satisfactory to Lessor.
30. QUIET ENJOYMENT.
Lessor covenants that if, and so long as, Lessee pays the rent, and any
additional rent as herein provided, and performs the covenants hereof,
Lessor shall do nothing to affect and no person claiming by through or
under Landlord shall affect Lessee's right to peaceably and quietly
have, hold, and enjoy the Premises for the term herein mentioned,
subject to the provisions of this Lease.
31. LESSEE'S ESTOPPEL.
Lessee shall, from time to time, on not less than twenty (20) days
prior written notice by Lessor, execute, or acknowledge, and deliver to
Lessor a written statement certifying that the Lease is unmodified and
in full force and effect, or that the Lease is in full force and effect
as modified and listing the instruments of modifications; the dates to
which the rents and charges have been paid, and, whether or not, to the
best of Lessee's knowledge, Lessor is in default hereunder, and if so,
specifying the nature of the default. It is intended that any such
statement delivered pursuant to
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this Paragraph 29 may be relied on by a prospective purchaser of
Lessor's interest or mortgagee of Lessor's interest or assignee of any
mortgage of Lessor's interest in the Building.
32. HOLDOVER TENANCY.
If Lessee holds possession of the Premises after the term of this
Lease, Lessee shall become a Tenant from month to month under the
provisions herein provided, but a monthly basic rental of one hundred
fifty (150%) percent of the basic rent for the last month of the term
or any renewal term, payable in advance on the first (1st) day of each
month, and such tenancy shall continue until terminated by Lessor, or
until Lessee shall have given to Lessor a written notice, at least
thirty (30) days prior to the intended date of termination of Lessee's
intent to terminate such tenancy.
33. LESSOR'S WORK - LESSEE'S DRAWINGS.
There is no obligation on the part of the Lessor to do any work or make
any repairs as a prerequisite to Lessee occupying the space under this
Lease.
34. SERVICES TO BE PROVIDED BY LESSOR.
While Lessee is not in default under any of the provisions of this
Lease, Lessor agrees to furnish the particular services, set forth on
Exhibit D attached hereto and made apart hereof, and subject to the
conditions therein stated. If Lessee shall default hereunder, Landlord
shall not terminate services described in Exhibit D, until fifteen (15)
day notice grace period has expired. Except as set forth in said
Exhibit D, Lessee shall pay the cost of all other services required by
Lessee. Notwithstanding the requirements of said Exhibit D, Lessor
shall not be liable for failure to furnish to furnish any of the
foregoing when such failure is caused by conditions beyond the control
of Lessor including, but not limited to, acts of God, accident,
repairs, or strikes; such failure shall not constitute an eviction.
Lessor shall not be liable, under any circumstances, for loss of, or
injury to property, however occurring, through or in connection with or
incidental to the furnishing of or failure to furnish any of the
services required by said Exhibit D, unless caused by the negligence or
willful misconduct of Landlord or its agents, employees or contractors
or by Landlord's breach of obligations under this Lease.
35. ELECTRIC.
A. Landlord shall furnish the electric energy that Tenant shall require on
a rent inclusion basis to be used by Tenant in the Demised Premises in
such reasonable quantities as may be required by Tenant to service its
computers and other ordinary office equipment, air conditioning, and
lighting in the Demised Premises. Landlord shall provide unlimited
access
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to the building on the part of the Tenant 24 hours a day or 7 days a
week, with no obligation to provide heating and air conditioning
services at no charge to tenant during overtime hours. There shall be
no charge to Tenant for electric energy by way of measuring same on any
meter or otherwise, such electric energy being included in Landlord's
services which are covered by the annual rental reserved herein.
Landlord shall not be liable in any event to Tenant for failure or
defect in the supply or character of electric energy furnished to the
Demised Premises by reason of any requirement, act, or omission of the
public utility servicing the Building with electricity or for any
reason not attributable to the negligence of the Landlord.
B. Landlord shall furnish and install all replacement lighting tubes,
lamps, bulbs, and ballasts required in the Demised Premises, at
Tenant's sole cost and expense, except for labor which shall be done by
the Landlord. Tenant agrees that it will make no electrical
installations, alterations, or additions, without the prior written
consent of Landlord in each instance.
C. Tenant will, at all times, comply with the rules, regulations, terms
and conditions applicable to the service, equipment, wiring, and
requirements of the public utility supplying to electricity to the
Building. Tenant covenants and agrees that, at all times, it s use of
electric current will not exceed the capacity of existing feeders to
the Building or the risers or wiring installation, and the Tenant will
not use any electrical equipment which, in Landlord's reasonable
judgment, will overload such installations or interfere with the use
thereof by other Tenants of the Buildings. In the event that, in
Landlord's reasonable judgment, Tenant's electrical requirements
necessitate installation of additional riser, risers, feeders, or other
proper and necessary equipment, the same shall be installed by Landlord
at Tenant's sole expense, which same shall be chargeable and
collectable as additional rent and paid within twenty (20) days after
the rendition of a xxxx to Tenant therefore.
D. Tenant covenants and agrees that it shall not suffer to waste said
electrical service, and expressly agrees all lights in the Demised
Premises shall be turned off, except during the hours of its operation.
Any lights required for security or safety may be left on.
The change at any time of the character of electric service by the
utility company serving the Building shall in no fashion make Owner
liable or responsible to Tenant, for any loss, damages, or expenses
which Tenant may sustain.
36. ADDITIONAL RENT
It is expressly agreed that Lessee will pay, in addition to the basic
rent, provided in Paragraph 3 above, an additional rental to cover
Lessee' s
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proportionate share of the increased cost to Lessor, for the categories
enumerated herein, over the "Base Costs" (as hereinafter defined) for
said categories.
A. Operating Cost Escalation.
--------------------------
If the Operating Costs incurred for the Building in which the Demised
Premises are located, and Office Building Area, for any calendar year
or proportionate part thereof during the Lease term, shall be greater
than the Base Operating costs (adjusted proportionately for periods
less than a lease year), then Lessee shall pay to Lessor as additional
rent its proportionate share of all such excess Operating Costs.
Operating Costs shall include, by way of illustration and not of
limitation, management fees, provided same do not exceed 4% of the
gross rentals of the building, labor, including all wages and salaries,
social security taxes, and other taxes which may be levied against
Lessor upon wages and salaries (except salaries for partners of the
Landlord and/or management personnel of the Landlord), supplies,
repairs and maintenance, maintenance and service contracts, painting,
wall and window washing, laundry and towel service, tools and equipment
(which are not required to be capitalized for federal income tax
purposes), fire and other insurance (except for health, accident and
group life insurance for partners of the Landlord and/or management
personnel of the Landlord), trash removal, lawn care, snow removal, and
all other items properly constituting direct operating costs according
to standard accounting practices (hereinafter collectively referred to
as the "Operating Costs"), but not including depreciation of Building
or equipment, interest, and amortization on any mortgage or other debt
service not in the ordinary course of operating the facility, income or
excess profit taxes, cost of maintaining the Lessor's corporate
existence, franchise taxes, any expenditures required to be capitalized
for federal income tax purposes or office expenses, manager fees or
salaries of the Lessor's executive officers, providing that the good
and services provided by the Landlord to the building are of comparable
costs to other suppliers, and that the repairs to and the physical
maintenance of the premises shall not include any capital improvements
or replacement of the plant, parking lot, utility and air conditioning
systems. As used in this Paragraph 34 "A", the Base Operating Costs
shall be the Operating Costs incurred during the first (1st) twelve
(12) months of Lessee's occupancy, projected as though said building
was fully occupied, if same is not fully occupied during said first
(1st) twelve (12) months of Lessee's occupancy. NOTWITHSTANDING THE
FOREGOING, OPERATING COSTS SHALL EXCLUDE THE FOLLOWING: ALL CAPITAL
EXPENDITURES OR IMPROVEMENTS, REAL ESTATE TAXES, WAGES AND BEFITS OF
EMPLOYEES ABOVE THE LEVEL OF BUILDING MANAGER, ALL COSTS FOR WHICH
LANDLORD IS REIMBURSED BY INSURANCE, OTHER TENANTS OR OTHERWISE, COSTS
OF LEASING SPACE IN THE BUILDING AND COSTS TO CURE EXISTING VIOLATIONS
OF LAW.
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B. Fuel, Utilities, and Electric Cost Escalation.
----------------------------------------------
If the Utility and Energy Costs, including any rate increase, fuel
surcharge or adjustment with respect thereto, incurred for the Building
in which the Demised Premises are located and Office building Area for
any lease year or part thereof during the lease term shall be more than
the Base Utility and Energy Costs, then the Lessee shall pay the
Lessor, as additional rent, its proportionate share of all, such excess
Utility and Energy Costs. As used in this Paragraph, the Base Utility
and Energy Costs shall be the water sewer, electricity and gas usage
incurred for the Building and Office Building Areas during the first
(1st) twelve (12) months of the Lessee's occupancy multiplied by the
average of the rates in effect during said base year. In the event the
Building is not fully occupied during the base year, projections shall
be made with respect to usage as though the Building were fully
occupied in arriving at the cost of fuel, utilities and electric cost
during said base year.
C. Tax Escalation.
---------------
If the Real Estate Taxes for the Building and Office building Are at
which the Demised Premises are located for any lease year or
proportional part thereof, during the lease term, shall be greater than
the Base Real Estate Taxes (adjusted proportionately for periods less
than a lease year), then Lessee shall pay to Lessor as additional rent
its proportionate share of all such excess real estate taxes.
As used in this Paragraph 34 "C", the words and terms which follow mean
and include the following:
(1) "Base Real Estate Taxes" shall mean state, country, and town
taxes levied against the entire Building and the land of which
the Demised Premises form a part for the calendar year January
1, 1998 and school taxes for the fiscal year, September 1,
1998 to August 31, 1999.
(2) "Real Estate Taxes" shall mean all property taxes as described
above and assessments imposed upon the Building and the land
upon which it stands. If due to a future change in the method
of taxation, any franchise, income or profit tax shall be
levied against Lessor in substitution for, or in lieu of, or
in addition to, any tax which would otherwise constitute a
Real Estate Tax, such franchise, income or profit tax shall be
deemed to be Real Estate Tax for the purposes hereof.
D. Lease Year.
-----------
As used in this Paragraph 34, Lease year shall mean the twelve (12)
month period commencing when possession is delivered, and each twelve
(12)
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month period thereafter. Once the base costs are established, in the
event any lease period is less than twelve (12) months, then the Base
Period Costs for the categories listed above shall be adjusted to equal
the proportion that said period bears to twelve (12) months, and Lessee
shall pay to Lessor as additional rent for such period, an amount equal
to Lessee's proportionate share of the excess for said period over the
adjusted base with respect to each of the aforesaid categories.
E. Proportionate Share.
--------------------
Lessee's Proportionate Share of the additional rent, as defined in
Subparagraphs A, B, and C hereof, shall be (2.51%) percent thereof,
which the parties agree is the Lessee's share of the total of the
additional rent, which Proportionate Share reflects and will be
continually adjusted to reflect the ratio of the gross square feet of
the rentable area of the entire Building measured outside wall to
outside wall.
F. Payment.
--------
Within sixty (60) days after the expiration of the time period, and
after the establishment of the Base Period Costs for each of the
categories referred to above, Lessor shall advise the Lessee in writing
of Lessee's proportionate share with respect to each of the categories,
in reasonable detail, as estimated for the next twelve (12) month
period subsequent to the Base Period, in a comparative statement
accompanied with the Landlords statement for any additional rent due
under this article (and for each succeeding twelve (12) month period or
proportionate part thereof if the last period prior to the Lessee's
termination is less than twelve (12) months as then known to the
Lessor) and, thereafter, the Lessee shall pay as additional rent, its
proportionate share of these costs for the then current period affected
by such advice (as same may be periodically revised by Lessor as
additional costs are incurred) in equal monthly installments, such new
rates being applied to any months for which the rental shall have
already been paid which are affected by the Operating Cost Escalation
and/or Utility and Energy Cost Escalation, and/or Tax Escalation Costs
above referred to, as well as the unexpired months of the current
period, the adjustment for the then expired months to be made at the
payment of the next succeeding monthly rental all subject to final
adjustment at the expiration of each Lease Year as defined in
Subparagraph D hereof (as proportionate part thereof, if the last
period prior to the lease's termination is less than twelve (12)
months). However, Lessor shall be reimbursed by Lessee monthly during
the first year of the Lease Term for additional Utility and Energy Cost
Escalations resulting from an increase in the monthly rate over the
Base Utility Rate as estimated above.
Notwithstanding anything herein contained to the contrary, in the event
the last period to the Lease's termination is less than twelve (12)
months,
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the Base Period Costs shall be proportionately reduced to correspond to
the duration of said final period.
If, after Tenant shall have made payment of additional rent based on an
increase of taxes, Landlord shall receive a refund of any portion of
the taxes on which such payment shall have been based as a result of
any application filed by or on behalf of the Landlord for the reduction
in the assessed valuation of the building and the land, or from any
proceeding instituted by or on behalf of the Landlord in a court of
competent jurisdiction for judicial review of said assessed valuation,
Landlord shall pay to the tenant, the tenant's share of the fund, after
all expenses incurred by the Landlord in processing a claim for refund
are appropriately and reasonably deducted.
G. Books and Records.
------------------
For the protection of the Lessee, the Lessor shall maintain books of
account which shall be open to the Lessee and its representatives, at
all reasonable times so that the Lessee can determine that such
Operating, Utility, and Energy and Tax Costs have, in fact, been paid
or incurred. Any disagreement with respect to any one (1) or more of
said charges if not satisfactorily settled between the Lessor and the
Lessee shall be referred by either party to an independent certified
public accountant cannot be agreed upon, the American Arbitration
Association may be asked by either party to select an arbitrator whose
decision on the dispute will be final and binding upon both parties,
who shall jointly share any cost of such arbitration.
Landlord agrees to make any reasonable extracts of such books and
records at Tenants expense. The payment of any additional rent under
this article without such examination or inspection shall not be deemed
as waiver of any error revealed by a subsequent examination and
inspection for the year for which the payment shall have been made. If
in respect to any subsequent lease year for which additional rent may
be currently payable, the books and records are not made promptly
available upon demand by the Tenant, then any additional rent for that
year shall in no event be due and payable earlier than thirty (30) days
after such demand is honored.
37. WAIVER OF TRIAL BY JURY.
To the extent such waiver is permitted by law, the parties waive trial
by jury in any action or proceeding brought in connection with this
Lease or the Premises.
38. LATE CHARGE.
Anything in this Lease to the contrary notwithstanding, at Lessor's
option,
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Lessee shall pay a "Late Charge" of five (5%) percent of any
installment of rent or additional rent paid more than ten (10) days
after the due date thereof, to cover the extra expense involved in
handling delinquent payments. The five (5%) percent number shall
compound in the event of consecutive delinquencies.
39. PARAGRAPH HEADINGS.
The paragraph headings in the Lease and position of its provisions are
intended for convenience only and shall not be taken into consideration
in any construction or interpretation of this Lease or any of its
provisions.
40. APPLICABILITY TO HEIRS AND ASSIGNS.
The provisions of this Lease shall apply to, bind and inure to the
benefit of Lessor and Lessee, and their respective heirs, successors,
legal representatives and assigns. It is understood that the term
"Lessor" as used in this Lease means only the owner, a mortgagee in
possession or a term lessee of the entire Building, so that in the
event of any sale of the Building or of any lease thereof, or if a
mortgagee shall take possession of the Premises, the Lessor named
herein shall be and hereby is entirely freed and relieved of all
covenants and obligations of Lessor hereunder accruing thereafter, and
it shall be deemed without further agreement that the purchaser, the
term lessee of the Building, or the mortgagee in possession has assumed
and agreed to carry out any an all covenants and obligations of the
Lessor hereunder.
41. PARKING SPACES.
Lessee's occupancy of the Demised Premises shall include the use of
three (3) parking spaces only, all of which shall unassigned. Tenant
shall not be permitted to park in the front of the building, which
spaces shall be reserved for visitors to the Building. All parking
spaces in the rear lot of the Building (other than those for visitors
or handicapped) shall be unassigned.
42. LESSOR'S LIABILITY FOR LOSS OF PROPERTY.
Lessor shall not be liable for any loss of property from any cause
whatsoever including, but not limited to, theft or burglary from the
Demised Premises and Lessee covenants and agrees to make no claim for
any such loss at any time, unless such liability is the result of the
gross negligence or intentional acts on the part of the Landlord, or
any of Landlord's agents employees or contractors.
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43. BROKER. NO BROKER HAS BEEN INVOLVED IN THIS TRANSACTION
44. PERSONAL LIABILITY.
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary
consideration for the execution of this lease by Lessor, that there
shall be absolutely no personal liability on the part of the Lessor,
its successors, assigns, or any mortgagee in possession (for the
purposes of this Paragraph, collectively referred to as "Lessor"), with
respect to any of the terms, covenants, and conditions of this Lease,
and that Lessee shall look solely to the equity of Lessor in the
Building for the satisfaction of each and every remedy of Lessee in the
event of any breach by Lessor of any of the terms, covenants, and
conditions of this Lease to be performed by Lessor, such exculpation of
liability to be absolute and without any exceptions whatsoever.
45. NO OPTION.
The submission of this Lease Agreement for examination does not
constitute a reservation of, or option for, the premises, and this
Lease Agreement becomes effective as a Lease Agreement only upon
execution and delivery thereof by Lessor and Lessee.
46. SHORT FORM MEMO.
Either party shall have the right, once Lessee is in possession of the
Premises, to require the recording of a memorandum of Lease stating
anything contained in the Lease sought by either party other than the
specific rent or additional rent provisions. The party requesting said
memorandum of lease shall pay for its preparation and recording.
47. ACCESS.
Lessor shall provide Lessee with a key to the Building as required by
Lessee.
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
after attempting to give notice, and, at other situations during
business hours upon reasonable prior notice to examine the same and to
make such repairs, replacements and improvements s Owner may deem
necessary and reasonably desirable to the Demised Premises or to any
other portion of the Building or which Owner may elect to perform.
Tenant shall permit Owner to use and maintain and replace pipes and
conduits in and that are behind the walls, floors, ceiling of the
Demised Premises and to erect new pipes and conduits therein provided
they are concealed within the existing
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walls, floor, or ceiling. 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. All of the aforesaid repairs shall be of
professional quality and those expected in a first class office space.
The repair shall be of professional quality an those expected in a
first class office space. The repair shall be completed with all due
diligency by the Landlord. Whenever the Landlord is performing any work
or storing any materials in the Premises pursuant to this Article 48 or
any other provision of this Lease, Landlord shall use its best efforts
to minimize interference with Tenant's use and enjoyment of the
Premises.
48. INSURANCE
Tenant shall, at its own expense, during the term hereof and any
extended term, maintain and deliver to the Landlord, public liability
and property damage insurance policies with respect to the Demised
Premises, in which both Landlord and Tenant shall be named as insures,
with limits of at least FIFTY THOUSAND AND 00/100 ($50,000.00) DOLLARS
for property damage, FIVE HUNDRED THOUSAND AND 00/100 ($500,000.00)
DOLLARS for injury or death to any one (1) person, and ONE MILLION AND
00/100 ($1,000,000.00) DOLLARS for any one (1) accident. Such policy or
policies shall be in such form and with such insurance companies as
shall be reasonably satisfactory to the Landlord with provision for at
least ten (10) days notice to Landlord or cancellation. At least ten
(10) days before the expiration of any such policy, Tenant shall supply
Landlord with a substitute therefore, with evidence of payment of the
premiums thereof. If such premiums shall not be so paid by Landlord,
shall be added to the installment of monthly rent becoming due on the
first of the next succeeding month and shall be collected and deemed as
rent.
49. TENANT LOCKS
In the event Tenant installs its own locks upon the subject Premises,
it will deliver to the Landlord a copy of keys to all doors and alarm
systems, so the Landlord may have access to the Demised Premises in
accordance with the terms of this Lease.
50. LANDLORD REPRESENTATIONS.
Landlord represents Tenant that to the best of Landlord's knowledge (a)
the existing certificate of occupancy for the Building permits office
use in the Premises, (b) Landlord shall maintain the existing
certificate of occupancy to permit Tenant to use the premises as office
space, (c) the Premises, all parking areas and all common spaces and
building systems
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of the Building are in compliance with all applicable laws and contains
(d) all building systems are in reasonable working order.
51. RENEWAL OPTION
There is no renewal option included in this Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
WITNESS For Owner/Lessor
MONTEBELLOW PARK
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
WITNESS/ATTEST For Tenant/Lessee
SEAK INTERNATIONAL
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx, President
