EXHIBIT 10.10
AGREEMENT OF LEASE, made as of this 23 day of November, 2004 between
Bridge Street Properties LLC having an address at Xxx Xxxxxx Xxxxxx, Xxxxxxxxx.
Xxx Xxxx 00000, hereinafter referred to as OWNER, and Electro-Optical Sciences,
Inc., having an address at 0 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx
00000, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
certain premises known as Suite 201 (the "Demised Premises" or the "Premises"),
located on the second floor in the building known as 0 Xxxx Xxxx Xxxxxx] (the
"building") in the Village of Xxxxxxxxx, Xxxxx xx Xxx Xxxx 00000, for the term
as set forth in Article 39 of the Lease Rider (or until such term shall sooner
cease and expire as hereinafter provided) at an annual rental rate as set forth
in Article 37 of the Lease Rider 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 installment on the
execution hereof. Owner and Tenant agree, for the purposes of this Lease, that
the rentable square footage area of the Demised Premises and the building shall
be deemed to be [3,188 square feet subject to verification] and [24,600 square
feet subject to verification], respectively.
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, except as may be set forth
in this Lease.
Occupancy: 2. Tenant shall use and occupy the Demised
Premises for general office use and for other uses
ancillary thereto and for no other purpose.
Tenant: 3. Tenant shall make no changes in or to the
demised Premises of any nature without Owner's
prior written consent, not to be unreasonably
withheld, conditioned or delayed. Landlord hereby
approves the Plans for Tenant's initial
Alterations to the Premises (the "Initial
Alterations") set forth in Exhibit I attached
hereto and made a part hereof. Notwithstanding
anything to the contrary contained in this Lease,
Tenant shall have the right to construct the
Initial Alterations in accordance the approved
Plans. Following the Initial Alterations, subject
to the prior written consent of Owner, not to be
unreasonably withheld, conditioned or delayed, and
to the provisions of this article, Tenant at
Tenant's expense, may make alterations,
installations, additions or improvements
("Alterations") which are nonstructural, and which
do not adversely affect utility services or
plumbing and electrical lines, in the Building by
using contractors or mechanics first approved by
Owner, which approval shall not be unreasonably
withheld or delayed. Except as set forth herein
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 sub-contractors to carry such
xxxxxxx'x compensation, general ability, personal
and property damage insurance as Owner may
reasonably require. Landlord represents and
warrants that as of the date hereof, the Building
has all necessary permits and approvals, including
without limitation a Certificate of Occupancy, so
that Tenant, upon completion of the Initial
Alterations in compliance with applicable law,
will be able to obtain all necessary permits and
approvals for the Premises, including a
certificate of occupancy for the Premises, so that
upon completion of the Initial Alterations, Tenant
can occupy the Premises for the purposes permitted
by this Lease. 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 after Tenant receives notice
thereof, at Tenant's expense, by filing the bond
required by law. Tenant shall have the right to
cause the Landlord to perform the Initial
Alterations [at fixed price of $75,360] pursuant
to a separate contract to be mutually agreed upon
and executed by Landlord and Tenant (the "Initial
Alterations Agreement"). In the event that
Landlord or Landlord's contractor performs the
Initial Alterations, Landlord, as part of such
work, at its sole cost and expense shall be
responsible for obtaining all required permits,
approvals and certificates, including, without
limitation, a certificate of occupancy for the
Premises, before the Commencement Date. In
addition, in such case Landlord shall be
responsible for all mechanics liens. All fixtures
and all paneling, partitions, railings and like
installations, installed in the premises at any
time, either by Tenant or by Owner in Tenant's
behalf, shall, upon installation, become the
property of Owner and shall remain upon and be
surrendered with the Demised Premises. Nothing in
this Article shall be construed to give Owner
title to or to prevent Tenant's removal of trade
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fixtures, but upon removal of any such from the
premises, Tenant shall immediately and at its
expense, repair and restore the premises to the
condition existing prior to installation and]
repair any damage to the Demised Premises or the
building due to such removal, normal wear and tear
and casualty excepted. 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 may be removed from the premises by
Owner, at Tenant's expense. Notwithstanding
anything to the contrary set forth herein, Tenant
shall have the right to make interior
non-structural alterations which do not adversely
affect the building systems or structure, but only
after receiving Owner's written consent, not to be
unreasonably withheld or delayed.
Maintenance and
Repairs: 4. (a) Tenant shall; throughout the term of this
lease, take good care of the Demised Premises and
the fixtures and appurtenances therein. Subject to
the waiver of subrogation provisions, Tenant shall
be responsible for all damage or injury to the
Demised Premises or any other part of the building
and the systems and equipment thereof, whether
requiring structural or nonstructural repairs
caused by or resulting from the wrongful
intentional acts or negligence of Tenant, Tenant's
subtenants, agents, employees, or licensees,
unless caused by the act or omission or negligence
of Owner, its agents, employees or contractors.
Tenant shall also repair all damage to the
building and the Demised Premises caused by the
moving of Tenant's fixtures, furniture and
equipment. Tenant shall promptly make, at Tenant's
expense, all repairs in and to the Demised
Premises for which Tenant is responsible, using
contractors reasonably acceptable to Owner. Any
other repairs in or to the building or the
facilities and systems thereof for which Tenant is
responsible, shall be performed by Owner at the
Tenant's reasonable expense, following Tenant's
receipt of invoice and reasonable backup. Owner
shall maintain in good working order and repair
the, exterior and the structural portions of the
building, including the structural portions of its
Demised Premises, and the public portions of the
building interior and the building plumbing,
mechanical, electrical, heating and ventilating
systems serving or passing through the Demised
Premises. Tenant agrees to give prompt notice of
any defective condition in the Premises for which
Owner may be responsible hereunder after Tenant
has actual knowledge thereof. Provided Landlord
uses reasonable efforts to avoid interfering with
Tenant's business, without any obligation to incur
overtime, there shall be no allowance to
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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 others making 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. Except as set forth in this
Lease, it is specifically agreed that Tenant shall
not be entitled to any set off or reduction of
rent by reason of any failure of Owner to comply
with the covenants of this or any other article of
this Lease. Tenant agrees that Tenant's sole
remedy at law in such instance will be by way of
an action for damages for breach of contract,
except in connection with a major, sustained
interruption of services, or to a material,
uncorrected, Landlord default in performance of
its obligations hereunder. The provisions of this
Article 4 shall not apply in the case of fire or
other casualty which are dealt with in Article 9
hereof. Notwithstanding anything to the contrary
set forth herein: (a) Owner shall, at Owner's
expense, maintain and keep in good repair the
interior and exterior structural portions of the
building, the roof, floor slabs, foundation and
building systems and (b) Owner shall make all
structural or extraordinary alterations and
repairs to the building and the Demised Premises
that are required to be made by any local, state
or federal laws now or hereafter in effect ("Legal
Requirements"), unless due to Tenant's particular
manner or use of the Demised Premises and not to
general office use. Landlord represents and
warrants that on the date hereof, the building
complies with all applicable Legal Requirements.
Owner shall be solely responsible for the cost of
any such alterations and repairs unless same are
necessitated by Tenant's manner of use of the
Demised Premises and by general office use, (b)
(1) Owner hereby reserves the right at any time
and from time to time to make alterations or
additions to the building, the buildings adjoining
the same and any other buildings located on Bridge
Street owned by Owner (collectively, the "Bridge
Street Properties" {"BSP"}). Owner further
reserves the right at any time and from time to
time to construct, or permit to construct, other
buildings or improvements within the BSP. Such
rights set forth in two preceding sentences
include, without limitation, the right to
construct additional stories on any such building
or buildings, the right to build adjoining the
same, the right to construct multi-level,
elevated, underground and other parking facilities
within the BSP and the right to erect in
connection with any such construction or building
temporary scaffolds and other aids to such
construction or building. Landlord shall use
reasonable efforts to minimize the noise and
disturbance to Tenant's business in connection
with such work. Owner shall
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have the right at any time and from time to time
to change the street address of the Demised
Premises or to change the name of the building
without incurring any liability to Tenant. Tenant
acknowledges that the building. may be expanded to
include multiple levels (the "Expansion") and that
the Expansion may include office, retail and
residential uses provided that no such retail use
shall increase Tenant's Common Area maintenance
charges. (ii) If an excavation shall be made upon
land adjacent to the Demised Premises, Tenant
shall permit the person(s) authorized to do such
excavation to enter the Demised Premises for the
purpose of doing such work as such person(s) deems
necessary to preserve the building of which the
Demised Premises is a part and to support the same
by proper foundations without any claim for
damages or indemnification from Owner or abatement
of rental or other charges hereunder. (iii) There
shall be no allowance to Tenant for a diminution
in rental value and no liability on the part of
Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or others
making any changes, alterations, additions,
improvements, repairs or replacements in or to any
portion of the building, the Demised Premises or
the BSP, or in or to any fixtures, appurtenances
or equipment therein.
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 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 6. Prior to the commencement of the lease term, if
Tenant is then in possession (pursuant to an
agreement whereby Landlord has made Tenant
responsible for the build-out), and at all times
thereafter, Insurance, Floor Loads: but subject to
the provisions of this Lease, Tenant at Tenant's
sole cost and expense, shall 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 and
all regulations of the New York State Board of
fire Underwriters, Insurance Service office with
respect to the Demised Premises arising out of
tenant's unique manner of use thereof (and not to
general office use), or with respect to the
building if arising out of tenant's manner of use
of the premises or the building. Nothing herein
shall require Tenant to make structural repairs or
alterations unless Tenant has, by its manner of
use of the
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Demised Premises or method of operation therein,
violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto.
Tenant may, after securing Owner to Owner's
satisfaction against all damages, interest,
penalties and expenses, including, but not limited
to, reasonable attorney's fees, by cash deposit or
by surety bond in an amount and in a company
reasonably satisfactory to Owner, contest and
appeal any such laws, ordinances, orders, rules,
regulations or requirements provided same is done
with all reasonable promptness and provided such
appeal shall not subject Owner to prosecution for
a criminal offense or constitute a default under
any lease or mortgage under which Owner may be
obligated, or cause the Demised Premises or any
part thereof to be condemned or subject to an
official order that it be vacated. 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 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. 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 thereafter paid by Owner which
shall have been charged because of such failure by
Tenant. Landlord represents and warrants that
Tenant's use of the Premises for the permitted use
shall not violate the provisions of this Section
or cause insurance rates to increase. 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
f11'e insurance rates applicable to said premises'
shall be conclusive evidence of
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the facts therein stated and of the several Items
and charges in the fire insurance rates then
applicable to said premises. Tenant shall only be
liable for such increases if Tenant's use of the
Premises for uses other than the permitted use is
the sole and direct cause of such increase. Tenant
shall not place a load upon any Door 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 settings
sufficient, in Owner's reasonable judgment, to
absorb and prevent vibration, noise and annoyance.
Subordination: 7. Subject to the provisions below, 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. Landlord shall make
reasonable efforts to provide Tenant with an SNDA
reasonably satisfactory to Tenant. This clause
shall be self. operative and no further instrument
of 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 any
certificate that Owner may reasonably request that
is reasonably satisfactory to Tenant within five
(5) days after written demand.
Property Loss Damage
Reimbursement
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, nor for
loss of or damage to any property of Tenant by
theft 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
omissions or negligence of Owner, its agents,
servants contractors or employees. Unless due to
their omissions or negligence, 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
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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, 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, or
licensees, of any covenant or condition of this
lease, or the negligence or wrongful acts of the
Tenant, Tenant's agents, contractors, employees,
or licensees; provided, however, that Tenant shall
not be responsible for claims and the like not
covered by insurance if Owner has not maintained
in force insurance with limits at least equal to
the amount of insurance the Owner is required to
carry under any mortgage or the amount that a
reasonably prudent landlord of a class a bonding
in the greater New York suburban area should have
carried. Tenant's liability under this lease
extends to the acts and omissions of any
sub-tenant, and any agent, contractor, employee,
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, resist or
defend such action or proceeding by counsel
approved by Owner in writing, such approval not to
be unreasonably withheld, conditioned or delayed.
The attorney that Tenant is required to use by its
insurer shall be deemed reasonably acceptable to
the Owner. Tenant shall be entitled, at its
expense, to defend its interest in any such
litigation, and Owner shall not compromise the
action without Tenant's prior written consent.
Owner shall indemnify and save harmless Tenant
against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for
which Tenant shall not be reimbursed by insurance,
including reasonable attorneys fees, paid,
suffered or incurred as a result of any breach by
Owner, Owner's agents, contractors, employees, or
licensees, of any covenant or condition of this
lease, or the negligence or wrongful acts of the
Owner, Owner's agents, contractors, employees, or
licensees. The waiver of subrogation provided in
Article 9, below, shall be applicable as
appropriate in order to carry out the intent of
the provisions of this Article.
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 prompt notice except thereof to Owner
and this lease shall continue in foil as
hereinafter set forth. (b) If the Demised Premises
are
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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 of the casualty and thenceforth shall cease
until 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 the date of such
casualty, and any payments of rent made by Tenant
which were on account of any period subsequent to
the date of such casualty 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 by
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 [fifteen (15) days] after written notice
from Owner that the premises are substantially
ready for Tenant's occupancy. Notwithstanding the
foregoing, if the Premises are not fully restored
within 360 days, at Tenant's election this lease
may immediately be terminated. (e) Nothing
contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage
from fare or other casualty. Notwithstanding the
foregoing, each party shall look first to any
insurance in its favor before making any claim
against the
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other party for recovery for loss or damage
resulting from fire or other casualty, and to the
extent permitted by law, Owner and Tenant each
hereby releases and waives all right of recovery
against the other or anyone 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 releasers' insurance
policies contain a clause providing that such a
release or 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 party 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 Premises
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 and assigns to Owner, Tenant's
entire interest in any such award. 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 this 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 award.
Assignment Mortgage,
and Etc.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives,
successors 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, which consent shall not be
unreasonably withheld conditioned or delayed. If
this lease be assigned, or if the Demised
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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.
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 amounts set forth in
this Lease for Tenant's use and Tenant may not use
any electrical equipment which, in Owner's
opinion, reasonably exercised, will exceed the
amounts set forth in this Lease for Tenant's use
Unless due to Landlord's omissions or negligence,
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
Right Premises: 13. (a) 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 upon reasonable
prior notice and without interfering with Tenant's
business, to examine the same and to make such
repairs, replacements and improvements as 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.
Provided Owner does not interfere with Tenant's
business and ensures that the confidentiality of
Tenant's business is maintained, and provided that
Tenant receives reasonable prior notice and has
the right to have a representative of Tenant
present, Tenant shall permit Owner to show 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. If Tenant is not present to
open and permit an entry into the premises, during
an emergency, 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 and the
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confidentiality of Tenant's business, such entry
shall not render Owner or its agents liable
therefor, nor in any event shall the obligations
of Tenant hereunder be affected. If during the
last month of the term Tenant shall have removed
all or substantially all of Tenant's property
therefrom, Owner may immediately enter, alter,
renovate or redecorate the Demised Premises
without limitation or abatement of rent, or
incurring liability to Tenant for any compensation
and such act shall have no effect on this lease or
Tenant's obligations hereunder. (b) (i) Owner
shall have the exclusive right to use and obtain
access to all or any part of the roof, provided
that Tenant shall be entitled to erect one or two
small satellite antennas or antennas for wireless
telecom or similar communication with other space
leased by Tenant within BSP (in a location of
Owner's choosing, and provided that no roof
penetration shall be required, exterior side and
rear walls of the Demised Premises for any
purpose, including but not limited to, erecting
signs or other structures on or over all or any
part of the same, erecting scaffolds and other
aids to the construction and installation of the
same, and installing, maintaining, using,
repairing, and replacing pipes, ducts, conduits
and wires leading through, to or from the Demised
Premises and serving other parts of the BSP in
locations which do not materially interfere with
Tenant's use of the Demised Premises. Tenant shall
have no right whatsoever in the exterior of
exterior walls or the roof (excepting satellite
telecom as set forth above) of the Demised
Premises. (ii) Tenant shall permit Owner to
install, use and maintain pipes, ducts and
conduits within or through the Demised Premises,
or through the walls, columns and ceilings
therein, provided that the installation work is
performed at such times and by such methods as
will not materially interfere with Tenant's use
and occupancy of the Demised Premises. Where
access doors are required for [mechanical trades
in or adjacent to the Demised Premises, Owner
shall furnish and install such access doors and
confine their location, wherever practical, .to
closets, coat rooms, toilet rooms, corridors and
kitchen or pantry rooms. Notwithstanding the
foregoing, in performing any work in or about the
Demised Premises, Owner shall use all reasonable
efforts not to disturb Tenant's business
operations, including performing work after hours
if practicable. In no event shall any work or
renovations by Owner result in a reduction of the
size of the Demised Premises. Landlord shall
repair any damage to the Demised Premises,
including any finish work resulting from any such
work or renovations.
Vault, Vault
12
en-Space Area: 14. No Vaults, vault space or area, whether or,
not closed or covered, not within the property
line of the building is leased hereunder, anything
contained in or indicated on any sketch, blueprint
or plan, or anything contained elsewhere in this
lease to the contrary notwithstanding. Owner makes
no representation as to the 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 any
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.
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 , it being understood
and agreed that the use of the Premises for the
permitted use will not violate the certificate of
occupancy. Tenant has inspected the premises and
accepts them as is, subject to the riders annexed
hereto with respect to Owner's work, if any, and
subject to the provisions of this Lease (including
the provisions that relate to Legal Requirements
and Hazardous Substances) and subject to latent
defects. Notwithstanding the foregoing, Owner
represents that (i) there is a valid Certificate
of Occupancy covering the building, including the
Demised Premises, which permits the Permitted Use
in the Demised P remises (subject to the
requirement that any new construction may require
its own new certificate of occupancy or
completion) and (ii) there are no violations of
Legal Requirements affecting the Demised Premises
as of the date hereof.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the
contrary not withstanding, this lease may be
canceled by Owner by the sending of a written
notice to Tenant within a reasonable time after
the happening of anyone or more of the following
events: (i) the commencement of a case in
bankruptcy or under the laws of any state naming
Tenant as the debtor; or (ii) 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
13
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 rent 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 amount 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
role 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. (a) 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 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 II of
the U.S. Code (bankruptcy code); in anyone or more of
such events, upon Owner serving a written five (5) days
notice in the case of monetary defaults, and a written
ten (10) day notice in the case of non-monetary
defaults, and upon the expiration of said five (5) days
or ten (10) days, as the case may be, 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 or ten (10) day
period,
14
and if Tenant shall not have diligently commenced curing
such default within such five (5) day or ten (10) day
period, and shall not thereafter with reasonable
diligence and in good faith, provided. (b) If the notice
provided for in (a) 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 which default shall not be cured within ten
(10) days after notice; then and in any of such events
Owner may with notice, re-enter the Demised Premises
either by legal means, 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
Remedies of Owner
and otherwise Waiver
of paid Redemption: 18. In case of any default, reentry, and expiration
and/or dispossess summary, proceedings or by (a) the
rent shall become due thereupon and be up to the time of
such reentry, 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
(provided Tenant shall not be liable for any rental
obligations in excess of its obligations under this
Lease), and/or (c) Tenant or the legal representatives
of Tenant shall also pay Owner as liquidated damages for
the failure of Tenant to observe and perform said
Tenant's 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 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 reasonable expenses as Owner may pay in
connection with re-letting, such as reasonable legal
expenses and 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
15
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 reasonable
alterations, repairs, replacements, and/or decorations
in the Demised Premises as Owner, in Owner's sole
reasonable judgment, considers advisable and necessary
for the purpose of re-letting the Demised Premises, and
the making of such reasonable 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.
Notwithstanding the preceding, Landlord shall use
reasonable efforts to relet the Premises and mitigate
the damages. 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 the person
entitled to that remedy 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 in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Owner
obtaining possession of Demised Premises, by reason of
the default beyond any applicable grace or notice
periods by Tenant of any of the covenants and conditions
of this lease.
Fees and Expenses: 19. If Tenant shall default, beyond any applicable grace
and cure period in the observance or performance of any
term or covenant on Tenant's part to be observed or
performed under this Lease, then, unless otherwise
provided elsewhere in this lease, Owner may immediately
or at any time thereafter and with notice perform the
obligation of Tenant thereunder. If either party, in
connection with the foregoing or in connection with any
default beyond any applicable grace or notice period by
the other party in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the
payment of money, including but not limited to
reasonable attorney's fees, in instituting, prosecuting
or defending any action or proceeding, then the
prevailing party
16
will be reimbursed by the other party 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 rendition
thirty (30) days after notice thereof to Tenant (with
reasonable backup) 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 the
prevailing party as damages.
Building Alterations
and Management: 20. 0wner 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, provided any such changes described in this
Article 20 shall not adversely affect Tenant's access or
the rights and privileges granted under this Lease.
Owner shall use reasonable efforts to avoid interfering
with Tenant's business, and shall give reasonable prior
notice to Tenant, prior to making building alterations
that may affect Tenant. 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 Tenants making any repairs in the building or any
such alterations, additions and improvements that are
completed within a reasonably short period of time.
Furthermore, Tenant shall not have any claim against
Owner by reason of Owner's imposition of such reasonable
controls of the manner of access to the building by
Tenant's social or business visitors as the Owner may
deem reasonably necessary for the security of the
building and its occupants.
No Representations
by Owner: 21. Neither Owner nor Owner's agents have by any
representations or promises with respect to physical
condition of the building, the land upon which It is
erected or the Demised Premises, the rents, leases,
expenses of operation, the actual dimensions of the
Demised Premises or the building 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
Demised Premises and is thoroughly acquainted with its
condition and, subject to the provisions of
17
this Lease, agrees to take the same "as is" as of the
date hereof and subject to the Landlord's compliance
with its obligations as set forth in this Lease, and the
Premises being in the condition required by this Lease,
acknowledges that the taking of possession of the
Demised Premises by Tenant shall be conclusive evidence
that the said premises 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 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.
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 and casualty
accepted 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, 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
provided Tenant is not in default beyond any applicable
grace or notice periods, Tenant may peaceably and
quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease
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 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
18
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) until after Owner shall
have given Tenant written notice that the premises are
substantially ready for Tenant's occupancy.
Notwithstanding the foregoing, if Owner is unable to
deliver possession of the premises by April 1, 2005,
Tenant shall have the right to terminate this lease. 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 and additional 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. Notwithstanding the
foregoing, Owner shall give possession within 90 days
after a fully executed copy of this lease is exchanged
between the parties, subject, however, to the obligation
of the Tenant to perform any work it is to perform in a
timely manner.
No Waiver: 25. The failure of Owner or Tenant 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. Owner
shall enforce all such Rules and Regulations in a
uniform and non-discriminatory manner. The receipt by
Owner and the payment by Tenant 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 or
Tenant unless such waiver be in writing signed by the
party granting the waiver. 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. 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
19
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 and 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 an
summary proceeding for possession of the premises,
Tenant will not interpose any counterclaim of whatever
nature or description in any such proceeding including a
counterclaim under Article 4.
Inability to
Perform: 27. Except as otherwise set forth to the contrary
elsewhere in this Lease, this Lease and the obligation
of Tenant to pay rent here under, and both parties'
obligations to perform all of the other covenants and
agreements here under on their respective parts to be
performed shall in no wise be affected, impaired or
excused because the other party is unable to fulfill any
of its obligations under this lease or to supply or is
delayed in supplying any service expressly or implied 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 labor troubles or
any cause whatsoever 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 Xxxx Notices: 28. Except as otherwise in this lease provided, a
statement, notice or communication which Owner may
desire or be required to give to Tenant, shall be deemed
sufficiently given or rendered if, in writing, delivered
to Tenant personally or sent by registered or certified
man addressed to Tenant at the building of which the
Demised Premises form a part or at the
20
last known residence address or business address of
Tenant 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 by receipted
delivery, or if sent by courier, one business day after
delivery to such courier or if mailed, upon receipt or
rejection of such notice as herein provided. Any notice
by Tenant to Owner must be given to Owner personally or
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. Notwithstanding the foregoing: (i) notices shall
be deemed given on the day of delivery, or, if delivery
is refused, on the first business day on which delivery
is attempted, and (ii) in addition to the notice methods
specified above, notices given to or by Owner or Tenant
may be given by hand or by courier service (such as
Federal Express or Airborne) that provides a signed
receipt. Notices shall be given to Owner and Tenant at
their addresses set forth in Rider Paragraph 67.
Services Expenses: 29. Owner shall provide at Owners sole cost and expense:
(a) heat to the Demised Premises when and as required by
law, on business days from 8 a.m. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m.; (b) water for ordinary,
drinking and kitchen/pantry and lavatory purposes, but
if Tenant uses or consumes water for any other purposes
(of which fact Owner in its reasonable discretion shall
be the judge), Owner may install a water meter at
Owner's expense which Tenant shall thereafter maintain
at Tenant's expense in good working order and repair to
register such water consumption and Tenant shall pay for
water consumed for other purposes only, as shown on said
meter as additional rent thirty days after bills and
reasonable backup are rendered; (d) Air
conditioning/cooling will be furnished to tenant from
May 15th through September 30th or otherwise as the
design of the Building and its unique heating/cooling
system requires, on business days (Mondays through
Fridays, holidays excepted) from 8:00 a.m. to 6:00 p.m.,
and Saturdays from 8 a.m. to 1 p.m., and ventilation
will be furnished on business days during the aforesaid
hours except when air conditioning/cooling is being
furnished as aforesaid. If Tenant requires air
conditioning/cooling or ventilation for more extended
hours or on Sundays or on holidays, as defined under
Owner's contract with Operating Engineers Local 94-94A,
Owner will furnish the same at Tenant's expense. (e)
Owner reserves the right to stop services of the
heating, elevators, plumbing, air-conditioning, power
systems or cleaning or other services, if any, when
necessary by reason of accident or for repairs,
alterations, replacements
21
or improvements necessary or desirable in the judgment
of Owner for as long as may be reasonably required by
reason thereof, provided, however, that Owner shall
provide Tenant with' reasonable notice of any such
cessation of utilities to the extent reasonably
possible, and provided that this provision is not
intended to authorize a major, sustained interruption of
services. If the building of which the Demised Premises
are a part supplies manually operated elevator service,
Owner at, any time may substitute automatic control
elevator service and upon ten days' written notice to
Tenant, proceed with alterations necessary therefor
without in any wise affecting this lease or the
obligation of Tenant hereunder. The same shall be done
with a minimum of inconvenience to Tenant and Owner
shall pursue the alteration with due diligence. At least
one elevator shall be available at all times.
Captions: 30. 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 provisions thereof.
Definitions: 31. The term "office", or "offices", wherever used in
this lease, shall not be construed to mean premises used
as a store or stores, for the sale or display, at any
time, of goods, wares or merchandise, of any kind, or as
a restaurant, shop, booth, bootblack or other stand,
xxxxxx shop, or for other similar purposes. The term
"Owner" means a landlord or lessor, and as used in this
lease means only the owner, or the mortgagee in
possession, for the time being of the land and building
(or the owner of a lease of the building or of the land
and building) of which the Demised Premises form a part,
so that in the event of any sale or 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
relieved 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 for obligations arising
both before and after the transfer. The words "re-enter"
and "re-entry" as used in this lease are not restricted
to their technical legal meaning. The term "business
days" as
22
used in this lease shall exclude Saturdays (except
such portion thereof as is covered by specific hours in
Article 29 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.
Adjacent Excavation
Shoring: 32. 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 an opportunity at
reasonable times on reasonable notice 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: 33. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and
comply strictly with, the Roles and Regulations and such
other and further reasonable Roles and Regulations as
Owner or Owner's agents may from time to time adopt.
Notice of any additional rules or regulations shall be
given in [elect] the manner set forth in Article 28 and
Rider Paragraph 67. 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.
Landlord shall not enforce the Rules and Regulations in
a discriminatory manner. In case of a conflict between
the Rules and Regulations and the other provisions of
this Lease, the other provisions shall control.
23
Security: 34. Tenant has deposited with Owner the sum of
$17,002.67 as security for the faithful performance and
observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event
Tenant defaults in respect of any of the terms,
provisions and conditions of this lease, including, but
not limited to, the payment of rent and additional rent,
Owner may use, apply or retain the whole or any part of
the security so deposited to the extent required for the
payment of any rent and additional rent or any other sum
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
re-letting 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 or lessee and Owner shall
thereupon be released by Tenant from all liability for
the return of such security; and Tenant agrees to look
to the new Owner solely for the return of said security,
and it is agreed that the provisions hereof shall apply
to every transfer or assignment made of the security to
a new Owner. Tenant further covenants that 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.
Estoppel
upon Certificate: 35. Tenant, at any time, and from time to time, at least
10 days prior notice by Owner, shall execute,
acknowledge and deliver to Owner, and/or to any other
person, firm or corporation specified by Owner, a
statement certifying that this Lease is unmodified and
in full force and effect (or, if there have been
modifications, that the same is in full force and effect
as modified and stating the modifications), stating the
dates to which the rent and additional rent have been
paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so,
specifying each such default.
24
Successors and Assigns: 36. 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.
25
SEE RIDER ATTACHED HERETO AND INCORPORATED HEREIN
In Witness Whereof. Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: BRIDGE STREET PROPERTIES, LLC
By: /s/
---------------------------------
-------------------------------------- Managing Manager
Witness for Tenant: Electro-Optical Sciences, Inc.
By: By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------ ---------------------------------
CORPORATE OWNER CORPORATE OWNER
STATE OF NEW YORK, SS.: STATE OF NEW YORK, SS.:
County of County of
On this day of , 19 , before me On this day of , 19 , before me
Personal came Personal came
to me known, who being by me duly sworn, to me known, who being by me duly
did depose and say that he resides sworn, did depose and say that
he resides
in in
that he is the of that he is the of
the corporation described in and which the corporation described in and
executed the foregoing instrument, as which executed the foregoing
OWNER;, and that he signed his name instrument, as OWNER;, and that
thereto by order of the board of he signed his name thereto by
directors of the corporation. order of the board of directors.
---------------------------------------- ---------------------------------
INDIVIDUAL OWNER INDIVIDUAL OWNER
STATE OF NEW YORK, SS.: STATE OF NEW YORK, SS.:
County of County of
On this day of 19 , before On this day of 19 ,
me personally came before me personally came
to me known and known to me to be the to me known and known to me to be
individual described in and who, as the individual described in and
Owner, executed the foregoing who, as Tenant, executed the
instrument and acknowledged to me that foregoing instrument and
he executed same. acknowledged to me that he
executed same.
26
---------------------------------------- ---------------------------------
27
28
IMPORTANT PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or other 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 used in any space, or in the public ball of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any band trucks, except those equipped with rubber tires
and side guards. 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
purpose 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 Tenant who, or whose clerks, agents,
employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be bung 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 building 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 will be attached to the outside walls of the
building without prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall he 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. Except as the
parties may agree as part
29
of the construction agreement, 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 an
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/her 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 or which these Rules and Regulations are a part.
9. 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. and at all hours on Sundays, and legal holidays all persons who
do not present a pass to the building signed by the Owner. Owner will furnish
passes to persons for whom any Tenant requests such pass and shall be liable to
Owner for all acts of such persons.
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 building for offices, 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 to permeate in or emanate from the
Demised Premises.
13. If the building contains central air conditioning and ventilation, Tenant
agrees to abide by all rules and regulations issued by the Owner with respect to
such services. If Tenant requires air conditioning or ventilation after the
usual hours, Tenant shall give notice in writing to the building superintendent
prior to 3:00 P.M. in the case of services required on week days, and prior to
3:00 P.M. on the day prior in the case of after hours service required on
weekends or on holidays.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent. If such safe,
30
machinery, equipment; bulky matter or fixtures requires special handling, all
work in connection therewith shall comply with all laws and regulations
applicable thereto and shall be done during such hours as Owner may designate.
31
RIDER TO LEASE
Between
BRIDGE STREET PROPERTIES, LLC, Owner
and
'ELECTRO-OPTICAL SCIENCES, INC., Tenant
In the event any conflict between any of the provisions of this Rider and
any of the terms of the appended lease (including the Rules and Regulations),
such conflict will be resolved in every instance in favor of this Rider.
37. BASE RENT
Commencing as of the Lease Commencement Date, Tenant shall pay to Owner
the annual base rent, In equal monthly installments on the first day of each
month, as follows:
Annual Monthly
------ -------
Years 1 and 2 $102,016.00 $ 8,501.33
Years 3 and 4 $108,392.00 $ 9,032.67
Years 5 and 6 $114,768.00 $ 9,564.00
38. CONSTRUCTION
A. OWNER'S WORK - EXHIBIT B
i. As soon as practicable, but in any case within 15 days after
execution of this lease, Owner will commence and within 60
days thereafter will use reasonable efforts to complete the
work set forth in Exhibit B annexed hereto and made a part
hereof ("Owner's Work"). The scope and detail of Owner's Work
shall be limited solely to terms set forth in Exhibit B.
Owner's Work shall be performed in a good, safe and
xxxxxxx-like manner and in accordance with all Legal
Requirements, subject to the provisions of Paragraph #78
(Force Majeure) and any of Tenant's Work interfering with
Owner's Work. However, Owner shall not be liable to Tenant for
damages of any kind resulting from Owner's delay in delivering
possession of the premises to Tenant, for whatever reason,
provided that Owner is able to deliver possession by or before
April 1, 2004.
ii. The term "Substantial Completion" or "Substantially Complete"
shall mean that, with the exception of minor punch list items
that do not interfere with Tenant's Work or with the use and
occupancy of the Premises, Owner's Work shall have been
completed in accordance with the specifications set forth
herein and Owner shall have obtained a temporary or permanent
certificate of occupancy with respect thereto, if required.
OWNER WILL GIVE TENANT AT LEAST FIVE DAYS NOTICE OF
SUBSTANTIAL COMPLETION OF OWNER'S WORK AND THE PARTIES SHALL
SCHEDULE A WALK-THROUGH UPON ISSUANCE OF OWNER'S
32
NOTICE. IMMEDIATELY FOLLOWING THE WALK-THROUGH, THE PARTIES
SHALL AGREE UPON AND EXECUTE A "PUNCH LIST" OF ITEMS NECESSARY
OR DESIRABLE TO COMPLETE OWNER'S WORK, ALONG WITH A SCHEDULE
OF TIME WITHIN WHICH TO COMPLETE SUCH "PUNCH LIST" ITEMS,
WHICH SCHEDULE SHALL NOT EXCEED 30 DAYS EXCEPT TO THE EXTENT
ANY SUCH PUNCH LIST ITEM REQUIRES MATERIALS THAT WILL NOT BE
AVAILABLE WITHIN SUCH TIME.
iii. Except for the completion of the aforementioned punch list
items, Tenant's occupancy of the premises shall be deemed to
be its acknowledgment that it has examined and accepts the
Demised Premises in "as is" condition on the Lease
Commencement Date, latent defects, hazardous substances, and
Owner's obligations under the lease excepted. Further, Tenant
agrees that Owner shall have no obligation to perform any
additional work, supply any materials, incur any expense or
make any additional improvements, installations or alterations
to the Demised Premises, beyond Owner's Work, in order to
prepare the Demised Premises for Tenant's occupancy and use.
B. TENANT'S WORK
i. Subject to the provisions of Articles 3, 6l and 64 hereof,
Tenant shall perform or cause the performance of Alterations in and to the
Demised Premises to prepare same for Tenant's occupancy thereof including,
but not limited to, installation of all interior plumbing, and lighting
fixtures, ceiling treatments, interior partitions, window treatments,
floor and wall coverings, distribution of electric (Owner shall provide 6
xxxxx per rentable square foot connected load exclusive of HVAC) and
distribution of HVAC (Owner shall provide perimeter HVAC) ("Tenant's
Initial Alteration") and all furniture, furnishings and equipment to adapt
the Premises for the Permitted Use. All materials used in connection with
Tenant's Initial Alteration shall be new and first quality. Tenant shall
submit to Owner detailed architectural, mechanical and engineering plans
and specifications showing Tenant's Initial Alteration, which shall be
prepared by Tenant, at Tenant's expense, and to the extent not
pre-approved shall be submitted to Owner on or before ten days after the
date hereof for Owner's approval. The plans and specifications, as
approved by Owner, are hereinafter referred to as the "Final Plans", and
shall be deemed an authorization by Owner for Tenant to proceed after the
Commencement Date or such earlier date as Owner may permit Tenant to have
access to the Premises for Tenant's Initial Alteration, which shall be
performed by Owner (pursuant to Paragraph ii below) or by contractors
reasonably approved by Owner and otherwise in accordance with the terms of
this Lease. The approval of the Final Plans by Owner shall not be deemed
to create any liability on the part of Owner with respect to the design or
specifications set forth in the Final Plans or an acknowledgment on the
part of the Owner that the Final Plans are in compliance with all
applicable governmental laws, rules and regulations.
ii. Within 30 days after approval by Owner of the Final Plans, and
providing that Tenant has not already engaged Owner to perform the work,
Tenant
33
shall deliver to Owner a proposal by one or more contractors reasonably
approved by Owner. Owner shall have the right, by notice given to Tenant
within 30 days after receipt of such proposal, to elect to perform
Tenant's Initial Alteration upon the terms set forth in Contractor's
Proposal. Upon such election, Owner and Tenant shall enter into an
agreement for the performance of Tenant's Initial Alteration upon such
terms.
iii. In the event that Owner elects to perform Tenant's Initial
Alteration, Owner shall pay a portion of the total construction cost
thereof (including only hard construction costs, materials incorporated in
Tenant's Initial Alteration, filing and other government al fees and
charges, but not including costs of furniture, furnishings and decorative
items) (the "Initial Alteration Cost") equal to Owner's Contribution (as
defined below), as verified by Tenant through provision of receipted
invoices (or such other proof of payment as Tenant sha1l reasonably
require).
iv. In the event that Owner does not elect to perform Tenant's
Initial Alteration, Owner shall reimburse Tenant for a portion of the cost
of Tenant's Initial Alteration, as approved by Owner and made by Tenant,
in the amount of Owner's Contribution. Provided this Lease is then in full
force and effect and Tenant is not in default hereunder beyond any
applicable notice and grace period and Tenant has opened the Premises for
business to the public, Owner shall pay Owner's Contribution to Tenant,
less any amounts deducted therefrom pursuant to Subsection (v), within
thirty (30) days after satisfactory completion of Tenant's Initial
Alteration and submission by Tenant of (i) "as-built" drawings showing
Tenant's Initial Alteration, (ii) a detailed breakdown of Tenant's final
and total construction costs, together with receipted invoices (or such
other proof of payment as Owner shall reasonably require) showing payment
thereof, (iii) a written statement from Tenant's architect or engineer
that the work described on any such invoices has been completed in
accordance with the Pinal Plans, (iv) all required AIA forms, supporting
final lien waivers and releases executed by the general contractor and all
major subcontractors employed by Tenant in connection with Tenant's
Initial Alteration, (v) a copy of a certificate of occupancy or amended
certificate of occupancy required in respect of the Premises.
v. Tenant shall pay all of Owner's reasonable out-of-pocket costs
incurred in connection with Tenant's Initial Alteration, consisting of up
to $500 for each engineering, or other outside consulting fee incurred by
or on behalf of Owner for the review and approval of Tenant's Final Plans
and for approval of construction of Tenant's Initial Alteration. Owner, at
its option, may deduct such costs from Owner's Contribution.
vi. For the purposes of this Lease, "Owner's Contribution" shall
mean $63,760 [$20.00 per square foot] [subject to verification of square
footage], at Tenant's election to be applied against the cost of
construction (if performed by Owner) or against Rent otherwise owing.
39. COMMENCEMENT DATE AND TERM OF LEASE
34
A. THE COMMENCEMENT DATE OF THIS LEASE (THE "LEASE COMMENCEMENT DATE")
SHALL BE THE DATE ON WHICH THE DEMISED PREMISES IS DELIVERED TO TENANT IN
CONDITION FOR OCCUPANCY, WITH OWNER'S WORK SUBSTANTIALLY COMPLETE, WITH ONLY
PUNCH LIST ITEMS REMAINING TO BE COMPLETED. WITHIN TEN (10) DAYS AFTER OWNER'S
AND TENANT'S DETERMINATION OF THE LEASE COMMENCEMENT DATE, AND AFTER AGREEMENT
ON THE FINAL PUNCH LIST AFTER THE FINAL WALK-THROUGH, TENANT SHA1L EXECUTE A
NOTICE CONFIRMING SUCH DATE, BUT THE FAILURE OF OWNER OR TENANT TO EXECUTE SUCH
INSTRUMENT SHALL NOT AFFECT THE MUTUALLY-AGREED-UPON DETERMINATION OF THE LEASE
COMMENCEMENT DATE. THE TERM OF THIS LEASE SHALL EXPIRE ON THE LAST DAY OF THE
MONTH WHICH OCCURS SIX YEAR(s) AFTER THE LEASE COMMENCEMENT DATE (THE "LEASE
EXPIRATION DATE"), UNLESS SUCH TERM SHALL SOONER EXPIRE OR BE EXTENDED AS IN
THIS LEASE PROVIDED.
B. THE TENANT'S OBLIGATION TO PAY THE ANNUAL BASE RENT PROVIDED FOR
HEREIN SHALL COMMENCE ON THE LEASE COMMENCEMENT DATE AND END ON THE LEASE
EXPIRATION DATE.
40. REAL ESTATE TAX ESCALATIONS
A. FOR THE PURPOSES OF THIS SECTION 40, OWNER AND TENANT AGREE AS
FOLLOWS:
1. "Base Tax Amount" shall mean the Village Taxes for the Village
of Irvington for the 2004/05 Tax Year, the Town/County Tax for the Town of
Greenburgh and Westchester County for the 2004 Tax Year and the School
Taxes for the Irvington School District for the fiscal year 2004/05 Tax
Year, adjusted as appropriate for full assessment.
2. "Taxes" shall mean the amount of all real estate taxes, fees
and any assessments and governmental charges levied, whether by federal,
state, county, municipal, or other taxing districts or authorities
presently or hereafter created, assessed against BSP (Tax Lots Sec. 4,
Sheet 3, Lots PI02. P105, PI07, P109 and P4B) and any other taxes, fees,
charges or assessments attributable to the Property. If and to the extent
that due to a change in the method of taxation, any other tax or charge
shall be a substitute for or supplement to any of the foregoing, then all
such items shall be included within the term Taxes for the purposes of
this Lease. All actual expenses reasonably paid in contesting the validity
or amount of any Taxes or in obtaining a refund of Taxes shall be
considered as part of the Taxes for the year in which paid, but not to
exceed the amount saved thereby.
3. "Tax Year" shall mean the period(s) adopted by any applicable
governmental authorities as its fiscal year for real estate tax purposes.
4. "Owner's Tax Statement" shall mean an instrument or invoice
setting forth or adjusting Tenant's Tax Contribution (as defined in
Subparagraph C hereof) or any installment thereof for a specified Tax Year
pursuant to this Paragraph 39.
5. "Tenant's Share" shall mean 1.55%.
35
B. Tenant agrees to pay in addition to base rent as additional rent
during the term of this lease and any and all renewals, extensions, and
modifications hereof an amount ("Tenant's Tax Contribution") equal to Tenant's
Share of the amount by which the Taxes in any Tax Year exceed the Base Tax
Amount. All such payments shall be appropriately pro-rated for any partial tax
year occurring during the term hereof.
C. Tenant shall pay Owner on the first day of each calendar month
during the term and amount equal to one-twelfth (1/12th) of the amount Owner
reasonably estimates from time to time as necessary to pay Tenant's Tax
Contribution. Such estimates shall be based upon actual tax bills to the extent
available and Owner's reasonable estimate of projected increases in the amount
of the. Any such estimate shall be subject to adjustment when the actual amount
of Real Estate Taxes shall be determined, and payment by Tenant to Owner of any
deficiency, or payment by Owner to Tenant for any overpayment, shall be made
within 20 days after delivery by Owner to Tenant of Owner's Tax Statement. Only
Owner shall be eligible to institute or prosecute a tax certiorari proceedings
to reduce the assessed valuation of the premises.
41. COMMON AREA MAINTENANCE ESCALATIONS.
A. For the purposes of this Section 41, Owner and Tenant agree as
follows:
(1) "Common Area Maintenance Expenses" shall mean any or all
reasonable, actual, and competitive expenses paid by Owner in connection
with the operation, management, maintenance, cleaning, and repair in, of
and to the buildings and grounds included in BSP including, without
limitation the following: (i) costs of repairing, operating, lighting,
cleaning painting, decorating all exterior and common areas of the BSP
(including, without limitation, all floors, roofs, elevators, walls,
stairs, signs, landscaping and shrubbery, parking areas and sidewalks,
(ii) salaries, wages (including all vacation and disability payments,
insurance, retirement benefits and other benefits and similar expenses) of
employees which Owner may engage in the on-site operation and maintenance
of BSP up to the level of Building Manager; (iii) payroll taxes, workmen's
compensation; (iv) water waste line maintenance (including sewer rental)
furnished to BSP, together with any taxes on any such utilities .provided
that such taxes are not payable under any other provision of this lease;
(v) the cost of all insurance carried by Owner applicable to BSP
(including, without limitation, primary and excess liability, and further
including vehicle insurance (only for vehicles dedicated to BSP), fire and
extended coverage, vandalism and all broad form coverage including,
without limitation, riot, strike, and war risk insurance, flood insurance,
boiler insurance, plate glass insurance and sign insurance); (vi) the cost
of all building and cleaning supplies; (vii) the cost of all reasonable
and customary charges for service contracts with independent contractors
for all areas of the BSP; (viii) the cost of landscaping, site maintenance
and snow removal; (viii) sales and use taxes not payable under another
provision of this lease; (ix) security systems, security personnel; and
any other costs and expenses in connection with the operation, maintenance
and repair of BSP.
(2) "Base Expense Year" shall mean calendar year 2005, adjusted
for full occupancy and for any extra costs of start up and systems under
warranty.
36
(3) "Owner's Expense Statement" shall mean an instrument showing
in reasonable detail Tenant's Expense Payment for the previous Lease Year,
along with a reconciliation of estimated payments made by Tenant as
compared to the actual Tenant's Expense Contribution for such Lease Year,
plus reasonable backup.
(4) "Tenant's Expense Share" shall mean 1.55 % [PLEASE EXPLAIN].
B. Tenant agrees to pay in addition to base rent as additional rent
during the term of this lease and any and all renewals, extensions, and
modifications hereof an amount, an amount equal to Tenant's Expense Share of the
amount by which the Common Area Maintenance Expenses in any Lease Year exceed
the Common Area Maintenance Expenses for the Base Expense Year ("Tenant's
Expense Contribution").
C. Tenant shall pay Owner on the first day of each calendar month
during the term hereof, together with the monthly installment of Base Rent, the
amount estimated by Owner to be one-twelfth (l/12th) of Tenant's Expense
Contribution, as such estimate may be adjusted from time to time upon written
notice to Tenant. Any such adjusted estimates shall become effective as of the
next monthly payment of Tenant's Expense Contribution.
D. Following the end of each Lease Year, Owner will submit to Tenant
Owner's Expense Statement for such Lease Year. Within thirty (30) days after
receipt of Owner's Expense Statement, Tenant shall pay to Owner any additional
amounts owed to Owner as shown on Owner's Expense Statement. Every Owner's
Expense Statement given by Owner to Tenant as set forth herein shall be
conclusive and binding upon Tenant unless (a) within 30 days after the receipt
of such statement, Tenant shall notify Owner that it disputes the correctness
thereof, specifying the particular respects in which such statement is claimed
to be incorrect. and (b) if such dispute shall not have been settled by
agreement, Tenant shall have the right to conduct an audit using an outside
auditor reasonably acceptable to Owner. If the result of such audit fails to
resolve the dispute, either party may submit the dispute to arbitration before a
panel of three accountants, one chosen by the Owner, who may by the Owner's
regular accountants, one by the Tenant and a third chosen by the two previously
appointed accountants. Pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall, within fifteen (15) days after receipt
of the Owner's Expense Statement, pay additional rent in accordance with such
statement and such payment shall be without prejudice to Tenant's position. If
the dispute shall be determined in Tenant's favor, Owner shall forthwith credit
against future payments of Tenant's Expense Contribution (or if no further
payments are due from Tenant, shall pay to Tenant) the amount of Tenant's
overpayment of rents resulting from compliance with the Common Area Maintenance
Expense Statement. If the dispute shall be determined in Owner's favor, Tenant
shall pay all amounts owed to Owner within twenty (20) days after such
determination.
E. If during all or part of any Lease Year, including the base year,
less than ninety-five (95%) percent of the BSP is occupied or leased, then, for
the purpose of computing the additional rent payable hereunder, the amount of
the Common Area Maintenance Expenses for such Lease Year shall be deemed to be
an amount (as reasonably determined by Owner) equal to the Common Area
Maintenance Expenses which would have
37
been incurred during such period by Owner had such occupancy been ninety-five
(95%) percent throughout such Lease Year.
42. ADDITIONAL RENT
A. All of the rent and additional rent hereunder shall he payable
directly to the Owner unless the Owner notifies Tenant otherwise.
B. All sums whatsoever payable by Tenant under this Lease and not
otherwise included within rent or additional rent shall constitute additional
rent and shall be payable without set-off or deduction, except as so specified
elsewhere in this Lease.
C. Tenant shall have fifteen (15) days from the service of any
additional rent statement to notify Owner, by certified mail, return receipt
requested, that it disputes the correctness of such statement. After the
expiration of such fifteen (15) day period, such statement shall be binding and
conclusive upon Tenant. Any such dispute shall be settled by audit and
arbitration as set forth in Paragraph 41 above. If such dispute is finally
determined in Tenant's favor, Owner shall credit against future payments owed by
Tenant (or if no further payments are due from Tenant, shall pay to Tenant) the
amount of Tenant's overpayment. If such dispute is finally determined in Owner's
favor, Tenant shall pay all amounts owed to Owner within twenty (20) days after
such determination.
43. HOLDOVER
A. Tenant hereby indemnifies and agrees to hold Owner harmless from and
against any loss, cost, liability, claim, damage, fine, penalty and expense,
including reasonable attorney's fees and disbursements, resulting from delay
greater than 90 days by Tenant in surrendering the Demised Premises upon the
termination or expiration of this lease as provided herein. Tenant shall in such
case be responsible for the cost of necessary temporary quarters of a successor
tenant but not damages from business interruption.
B. In the event Tenant remains in possession of the Demised Premises
after termination or expiration of this lease without the execution of a new
lease and without Owner's permission, Tenant, at the option of Owner, shall be
deemed to be occupying the Demised Premises as a tenant from month to month, at
a monthly rental equal to 1.25 times the base rent and additional rent payable
during the last month of the term of this lease, subject to all the other terms
of this lease insofar as the same are applicable to a month to month tenancy.
44. GLASS ENTRANCE AND DOORS: PLATE GLASS INSURANCE.
Tenant shall replace, at Tenant's expense, any and all plate glass or
doors or windows including front and rear building entrance doors damaged or
broken by Tenant or its employees, agents or invitees by any cause whatsoever in
and about the Demised Premises. At Owner's written request, Tenant shall provide
to Owner a paid up policy of plate glass insurance, which policy names the Owner
as an additional insured to the extent of its interest and which covers the
glass windows and doors on the premises.
38
45. UTILITIES. ETC.
A. Except as otherwise provided in this Article 45, electric current
shall be supplied by Owner on a submetering basis. Tenant covenants and agrees
to purchase the same from Owner or Owner's designated agent, at the charges,
taxes, terms and rates paid by Owner from time to time in connection with the
supply of electric current to the Building plus ten percent (10%) (?). The
amount payable by Tenant shall increase in the same proportion as any increases
after the date hereof in the charges, taxes, terms or rates to Owner in
connection with the supply of electric current to the Building. All payments
shall be due within thirty (30) days after receipt of an invoice therefor from
Owner plus reasonable backup.
B. Owner may elect at any time during the Term to discontinue supplying
electric current to the Demised Premises. In such event, this Lease shall
continue in full force and effect and Tenant shall, at its sole cost and
expense, make its own arrangements with the utility company servicing the
Building for obtaining gas and electricity for the and for the payment of all
charges relating thereto. Should Owner elect thus to discontinue submetering
service, Owner shall not discontinue electricity until Tenant has completed
arrangements for direct supply of the same. Owner shall be responsible for the
cost of installation of the meter and any required additional risers required
for Tenant to obtain such electric current directly from the public utility
supplying same. Tenant agrees to pay for electricity and gas consumed, as shown
on said meter as and when bills are rendered, directly to the utility providing
such service, and on default in making such payment Owner may pay such charges
and collect the same from Tenant as additional rent. In the event that at any
time during the term hereof there is no meter measuring Tenant's consumption of
electricity or gas, Tenant's pro-rata portion of such expenses shall be based
upon square footage and actual use, as determined by Owner.
C. Owner shall not be responsible for service and/or charges for
electricity in or to the Demised Premises. Owner shall not in any way be liable
or responsible to Tenant for any loss or damage or expense which Tenant may
sustain or incur if either the quantity or character of electric service is
changed or is no longer available or suitable for Tenant's requirements, except
insofar as such deficiency is caused by Owner's negligence or intentional acts.
Except for such negligence or intentional acts, interruption or curtailment of
such service shall not constitute a constructive or partial eviction nor entitle
Tenant to any compensation or abatement of rent, unless due to the act or
omission of Owner, its employees, agents or contractors. Tenant shall keep the
sub-meter or meter measuring Tenant's utility consumption and any related
equipment in good working order and repair at Tenant's own cost and expense in
default of which Owner may cause such sub-meter or meter and equipment to be
replaced or repaired and collect the cost thereof from Tenant as additional
rent.
47. WATER CHARGES
If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory and kitchenette purposes (as determined by Owner in Owner's
reasonable discretion), Owner may install a water meter and thereby measure
Tenant's water consumption for all purposes. Throughout the duration of Tenant's
occupancy Tenant shall
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keep said meter and installation equipment in good working order and repair at
Tenant's own cost and expense in default of which Owners 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 in excess of
the "base" amount required for lavatory and kitchenette use , as shown on said
meter 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 thereafter 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.
48. XXXXX
Tenant shall not install or maintain any sign, symbol or advertisement on
the exterior of the Demised Premises, except on the main directory. All signs
are subject to Owners reasonable prior written consent and shall comply with
appropriate building codes and municipal requirements and shall be commercially
manufactured (no paper or hand -written signs). Tenant shall be entitled to
include its logo in its sign.
49. BROKER
Tenant and Owner mutually acknowledge and represent that they have dealt
with no person or corporation with respect to the negotiation of this Lease.
Each party agrees to indemnify and hold the other harmless from and against any
claims for brokerage commissions or other compensation from any person or
corporations with whom it has dealt.
50. INDEMNITY
(b) Tenant shall indemnify, defend and hold harmless Owner and its
members, managers, officers, directors, employees, attorneys and agents
(collectively, the "Indemnitees") from and against any and all claims, demands,
causes of action, judgments, damages, losses, costs and expenses (including
without limitation reasonable attorneys' fees and disbursements) for any damage
to any property or injury, illness or death of any person (a) occurring in, on,
or about the Demised Premises, or any part thereof, arising at any time and from
any cause whatsoever other than Owner's own actions; (b) occurring in, on or
about any part of BSP other than the Demised Premises, when such damage, injury,
illness or death shall be caused in whole or in part by any act or omission or
negligence or willful or criminal misconduct of Tenant, its agents, servants,
employees, or licensees; (c) arising out of or in any way related to claims for
work or labor performed or materials or supplies furnished to, or at the request
of, Tenant or in connection with the performance of any work done by or for the
account of Tenant, whether or not Tenant obtained. Owner's permission to have
such work done, labor performed or materials or supplies furnished; or (d)
arising out of or in any way related to any breach of a covenant or condition in
this Lease to be performed by Tenant. The provisions of this Paragraph shall
survive the expiration or sooner termination of this Lease.
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(c) Owner shall indemnify, defend and hold harmless Tenant and its
officers, directors, employees, attorneys and agents (collectively, the
"Indemnitees") from and against any and all claims, demands, causes of action,
judgments, damages, losses, costs and expenses (including without limitation
reasonable attorneys' fees and disbursements) for any damage to any property or
injury, illness or death of any person (a) occurring in, on, or about the
Demised Premises, or any part thereof, arising at any time and from Owner's own
actions; (b) occurring in, on or about any part of BSP other than the Demised
Premises, when such damage, injury, illness or death shall be caused in whole or
in part by any act or omission or negligence or willful or criminal misconduct
of Owner, its -agents, servants, employees, or licensees; (c) arising out of or
in any way related to claims for work or labor performed or materials or
supplies furnished to, or at the request of, Owner or in connection with the
performance of any work done by or for the account of Owner; or (d) arising out
of or in any way related to any breach of a covenant or condition in this Lease
to be performed by Owner. The provisions of this Paragraph shall survive the
expiration or sooner termination of this Lease.
51. Insurance
A. Tenant shall obtain and keep in full force at all times commencing
with Tenant's occupancy, and continuing throughout the term, at its own cost and
expense, comprehensive general liability insurance, such insurance to afford
protection initially in an amount of not less than $1,000,000 for injury or
death to anyone person, $1,000,000 for injury or death arising out of anyone
occurrence, and $500,000 for damage to property, protecting the Owner as
additional insured to the extent of its interest, and Tenant as insured against
any and all claims for personal injury, death or property damage occurring in,
upon, adjacent to, or in connection with the Demised Premises and any part
thereof and from time to time during the term for such higher limits, if any, as
are currently carried with respect to similar properties in the area where the
building is located. There shall be added to or included within such
comprehensive general liability insurance all other coverage's as may be usual
to Tenant's use of the Demised Premises, including without limitation, products
and completed operations liability, independent contractors liability, broad
form comprehensive general liability endorsements, and broad form property
damage liability, as appropriate in light of Tenant's use. Tenant shall carry at
all times:
1. Worker's compensation and employer's liability as required by
law, if applicable.
2. New York State disability benefits liability as required by
law, if applicable.
3. "All Risk" property insurance upon Tenant's Property,
including contents and trade fixtures; such coverage is to be written on a
replacement cost basis and in an amount of not less than 100% of the full
replacement value thereof.
B. All required insurance is to be written by insurance companies
licensed to do business in the State of New York which shall be reasonably
satisfactory to the Owner. The original insurance policies or appropriate
certificates shall be deposited with Owner together with any renewals,
replacements or endorsements to the end that said insurance shall be in
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full force and effect for the benefit of Owner during the term. In the event
Tenant shall fail to procure and place such insurance, the Owner may on
reasonable prior notice to Tenant, but shall not be obligated to, procure and
place same, in which event the amount of the premium paid shall be remitted by
Tenant to Owner upon demand and shall in each instance be collectible on the
first day of the month or any subsequent month following the date of payment by
Owner, as additional rent.
C. All required policies shall Include provisions insuring Tenant's
property and business interest in the Demised Premises (business interruption
insurance) against loss, damage or destruction by fire or other casualty, and a
waiver of the insurer's right of subrogation against the Owner, only if
obtainable without additional charge. If such waiver is not available without
additional charge or at all, the Tenant shall so notify the Owner promptly after
learning thereof. In such case, if the Owner shall so elect and shall pay the
insurer's additional charge therefor, such waiver shall be included in the
policy. Each policy which shall contain agreements by the insurer that the
policy will not be materially changed, amended or canceled without at least
twenty (20) days prior notice to Owner, and that the act or omission of one
insured will not invalidate the policy as to the other insured.
D. There shall be maintained deductibles in such amounts as Tenant
shall reasonably determine but in no event in excess of $5,000.00 with respect
to a property insurance policy and in no event in excess of $5,000.00 with
respect to a liability insurance policy.
E. At least 10 days prior to commencement of construction of any work
in the Demised Premises, Tenant and Tenant's contractor shall deliver to Owner
(and Owner's mortgagees, if required by them) certificates of insurance or
policies required by evidencing all insurance coverages provided in this
Article. Tenant's contractor shall be required to comply with all of such
insurance obligations only through final completion of all such work.
F. Except for insurance for Tenant's trade fixtures and personal
property at the premises, all property insurance policies shall cover the
interest of Tenant, Owner, and/or Owner's mortgagees, as their interest may
appear, and the policies therefor shall provide that adjustment of any losses
thereunder shall include in the negotiation, not be settled or finalized
without, and be payable to, Owner and Owner's mortgagees. All such property
insurance policies shall contain a provision allowing other insurance that is
provided to or for Owner.
G. All policies of insurance maintained by Tenant under this Article
shall be written as primary policies not contributing with, nor in excess of,
insurance coverage that Owner and its mortgagees may have. Tenant shall not
carry separate or additional insurance which, in the event of any loss or
damage, is concurrent in form or would contribute with the insurance required to
be maintained by Tenant under this Lease.
H. If Tenant shall not insure for business interruption, or, to the
extent that Tenant shall be a self insurer (including, without any limitation,
any deductible under any insurance policy) Tenant agrees that Owner shall be
released, and Tenant hereby releases Owner, from business interruption loss
which could have been covered by an insurance
42
policy if Tenant had chosen to purchase one, except insofar as is otherwise
provided for in this lease.
52. MAINTENANCE
A. Other than as elsewhere provided herein, Tenant is responsible for
all costs associated with the maintenance of the non-structural portions of the
Demised Premises and in keeping the Demised Premises in a proper manner and in a
general state of cleanliness and repair.
B. Tenant shall, at its own sole cost and expense, maintain and keep in
good order, condition and repair, all mechanical items, the use of which is
included herein or is required for the permitted use of the Demised Premises by
the health and building codes of the Village of Irvington, Town of Greenburgh or
Westchester County, as well as hot water heater, pumps, vents, ducts and
fixtures located within the Demised Premises, provided, however, that
notwithstanding anything else set forth in this paragraph, Owner shall have sole
responsibility for maintenance and repair or replacement of the HVAC system and
any components thereof.
C. Owner shall be responsible for all structural repairs to the
building, unless such repairs are necessitated by Tenant's wrongful acts or
negligence, including the acts or negligence of its agents or employees.
53. OWNER'S COSTS TO APPROVE OR CONSENT
If Tenant requests Owner's approval or consent to alterations, additions,
improvements, or assignment 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 it s attorneys, architect and/or engineer, then Owner,
as conditions precedent to granting its consent or approval, may require that
the Tenant pay the reasonable fee of Owner's attorneys, architect and/or
engineer in connection with the consideration of such request and/or the
preparation of any documents pertaining thereto; provided however that in anyone
alteration or other matter requiring Owner review, Tenant's liability for such
costs shall not exceed $500 per professional (attorney, architect or
engineer's).
54. USE AND OPERATION
A. The Demised Premises shall be used for general office use, uses
ancillary thereto, and no other purposes.
B. Any change from substantially the use as described herein shall
constitute a default under this Lease.
C. The Tenant shall not suffer or permit the Demised Premises to be
used in any manner, or anything to be done therein, or suffer or permit anything
to be brought into or kept therein, which would in any way (i) result in the
Demised Premises not being operated in a manner consistent with a first-class,
high quality office or which would be inconsistent
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with the nature and the operation of the building, or (ii) constitute a public
or private nuisance.
55. BREACH BY TENANT
A. In the event of a breach or threatened breach by Tenant of any of
the covenants or provisions of this Lease, Owner shall have the right to enjoin
any such breach or threatened breach.
B. Any and all rights and remedies which Owner may have under this
Lease and at law or in equity, shall be cumulative and shall not be deemed
inconsistent with each other, and any two or more or all of said rights and
remedies may be exercised at the same time or at different times and from time
to time. If any of the aforesaid provisions or any other provision of this lease
shall be unenforceable or void, said provision shall be deemed eliminated and of
no force and effect and the balance of this Lease shall continue in full force
and effect. If any notice is required by law to be given, such notice shall be
given.
C. The Tenant covenants and agrees to pay on demand Owner's expenses,
including reasonable attorneys' fees and disbursements, incurred in successfully
enforcing any obligation of the Tenant under the Lease or in curing any default
by Tenant under this Lease.
D. The Owner shall have a lien on Tenant's interest in this Lease to
secure the payment and performance of Tenant's obligations hereunder.
Furthermore, to secure: (i) the payment of all base rent and additional rent;
and (ii) Tenant's performance of all of its obligations under this Lease, Tenant
grants to Owner an express first and prior lien and security interest in all
fixtures and similar personal property which are and may be placed In the
Demised Premises after the date hereof, and the proceeds thereof, and upon all
proceeds of any insurance which may accrue to Tenant by reason of the
destruction or damage of any such property. Tenant will not remove such property
in which Owner has an interest as provided herein (except Tenant may remove
fixtures and similar personal property if same is replaced at the premises by
property of like quality and equivalent value) without the prior written consent
of Owner until Owner sha1l have released its lien, or this Lease is terminated
for reasons of Owner's default as determined by a court of competent
jurisdiction, or the termination of such security interest as provided in this
Lease, whichever first occurs. Tenant waives the benefit of all exemption laws
in favor of such lien and security interest. This lien and security interest is
given in addition to Owner's statutory lien and is cumulative with it. Upon the
occurrence of a default, which default is not cured within the applicable cure
period, these liens may be foreclosed with or without court proceedings by
public or private sale, so long as Owner gives Tenant at least fifteen (15) days
written notice of the time and place of the sale. Owner will have the right to
become the purchaser if it is the highest bidder at such sale. By executing this
Lease, Tenant is authorizing Owner to file Uniform Commercial Code Financing
statements in form and substance sufficient (upon proper filing) to perfect the
security interest granted in this section and any Uniform Commercial Code
continuation on statements as may be required in the future to reflect any
proper amendment of, modification in, or extension of the security interest
granted in this section. This section shall constitute a "security agreement" as
said term is defined in the New York Uniform Commercial Code. The security
interest
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and lien created by this subparagraph shall terminate, and Owner shall deliver
to Tenant one or more UCC-3 termination statements terminating such lien, upon
the earlier of: (i) The termination of this Lease by reason of Owner's default
as determined by a court of competent jurisdiction or (ii) the termination or
other expiration of this Lease pursuant to its terms.
E. Additionally, should the Premises not be occupied for a period of in
excess of 240 consecutive days absent Owner's consent, it shall be a non-curable
default hereunder. Notwithstanding foregoing, if the Premises are closed by
reason of a fire or other casualty, then the provisions herein shall not apply,
unless the same would result in the loss of the present use for the Premises.
56. ADDITIONAL SERVICES
Tenant covenants and agrees that, in the event any law, rule regulation or
judicial determination has the effect of increasing any of the services to be
furnished by Owner hereunder, Tenant agrees to pay to Owner, as additional rent,
the reasonable cost incurred or to be incurred by Owner to provide such
additional service to Tenant or Tenant's pro-rata share if provided to other
Tenants.
57. REFUSE
A. Tenant shall at all times keep the areas used by Tenant for ingress
and egress to the Demised Premises free and clear of all dirt, garbage, rubbish,
refuse (which such term "refuse" as used in the Lease shall mean and include
crates, boxes, merchandise, containers, bottles, paper, food and similar items),
snow and ice.
B. Tenant shall accumulate all garbage, rubbish and refuse for disposal
only within the interior of the Demised Premises and not in the common or
services area and in areas therein kept closed by a door and in well -covered
sanitary containers designed to prevent odors from emanating therefrom. No such
garbage, rubbish or refuse shall be removed, or be permitted to be removed, from
the interior of the Demised Premises, except in accordance with local law and
Building Rules and Regulations. Tenant shall be responsible for all costs and
expenses in connection with Tenant's garbage removal. Tenant shall also comply
with all laws and ordinances with regard to its garbage removal and be
responsible for any breach thereof.
58. EXTERMINATOR
Tenant shall, at its sole cost and expense, keep the Premises free from
vermin, rodents, or anything of like, objectionable nature which emanates from
the Premises or is caused by Tenant's use of the Premises, and shall employ only
a licensed exterminator at the request of Owner. In the event of Tenant's
failure to keep the Premises free from vermin, rodents or anything else of like
nature, Owner shall have the right, at Tenant's expense, to take all necessary
steps or measures to eradicate any and all vermin and rodents and other things
of like nature from the Demised Premises and the cost thereof shall be added as
additional rent to the installment of fixed minimum rent payable on the next
monthly rental payment date and Tenant shall pay on that date such additional
rent.
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59. OWNER'S LIMITED LIABILITY
Anything in this lease to the contrary notwithstanding, Tenant for itself,
its successors and assigns, covenants and agrees that the liability of the Owner
shall be limited so that only the assets and interest of the Owner in and to
One-Two Bridge Street, and the Bridge Street Property, Irvington, New York,
shall be available and/or liable for the satisfaction, or security for payment
of any judgment or claim against Owner or any indebtedness of Owner arising from
any default by Owner. Tenant for itself, its successors and assigns, covenants
and agrees that no other assets of any of the principals of Owner whether owned
by them jointly or severally, directly or indirectly, shall be liable to payor
satisfy any such judgment, claim, demand or indebtedness arising from any
default by Owner.
60. LATE PAYMENT
If Tenant shall fail to pay any installment of base rent or any amount of
additional rent for more than ten (10) days after the same shall have become due
and payable, and shall have received five days written notice without having
complied, Tenant shall pay Owner a late charge of five cents for each dollar of
the amount of such base rent or additional rent as shall not have been paid to
Owner within such ten (10) days after becoming due and payable. Such late
charges shall be without prejudice to any of Owner's rights and remedies
hereunder or at law or in equity for nonpayment or late payment of rent and
shall be in addition thereto.
61. ALTERATION
A. Prior to the commencement of any changes, improvements or
alterations to the Demised Premises, Tenant shall submit to Owner, for Owner's
approval, plans and specifications (to be prepared by and at the expense of
Tenant) for any proposed changes, improvements or alterations, in detail
reasonably satisfactory to Owner. Owner's approval of any plans and
specifications shall not indicate that such plans and specifications comply with
applicable laws, rules and regulations; Tenant shall have sole responsibility
for ensuring such compliance. Owner's consent shall not unreasonably be withheld
conditioned or delayed. If Owner shall give its approval to any such changes,
improvements and/or alterations as provided herein, the same shall be performed
by Tenant, at Tenant's sole cost and expense, in accordance with the approved
plans and in a good and workmanlike manner. 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. Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such worker's compensation, general
liability, personal and property damage insurance as Owner may reasonably
require. No amendments or additions to the approved plans and specifications
shall be made without the prior written consent of Owner. The standards of
quality, utility and appearance of the proposed changes, improvements or
alterations shall conform to the reasonable standards specified and/or to be
specified by Owner, and Tenant agrees that Tenant will conform to such
standards. Notwithstanding the foregoing, Tenant
46
shall be able to perform nonstructural alterations not costing more than one
hundred dollars ($100), of suitable quality, and not affecting the structure or
systems, without the necessity of prior consent of Owner.
B. Tenant covenants and agrees that all changes, improvements, and
alterations will be made with the least possible disturbance to the occupants of
other parts of the building. Tenant, in making such changes, improvements or
alterations, shall and will, at Tenant's own cost and expense, promptly comply
with all laws, rules and regulations, whether now or hereafter enacted
(including, without limitation, The Americans with Disabilities Act of 1990, all
regulations issued thereunder and the Accessibility Guidelines for Buildings and
Facilities issued pursuant thereto, as all of the foregoing may be amended from
time to time) of all public authorities having jurisdiction in the building
and/or the Demised Premises with reference to such changes, improvements or
alterations, whether ordinary or extraordinary, structural or otherwise,
foreseen or unforeseen, as applicable at the time of each such change,
improvement or alteration, and will not call up on Owner for any expenses
connected therewith, and will reimburse Owner for any expenses incurred on
account of failure by Tenant to comply with any requirement of law, rules and
regulations, and of any public authority, whether involving structural changes
or not.
C. Tenant shall promptly pay and discharge all costs and expenses of
such changes, improvements or alterations, and shall not do or fail to do any
act which shall or may render the building or BSP liable to any mechanic's lien
or other lien or charge or chattel mortgage or security interest or conditional
xxxx of sale or title retention agreement. If any such lien or liens or other
charge or chattel mortgage or security interest or conditional xxxx of sale or
title retention agreement is filed against the building or BSP, or against such
changes, improvements or alterations, or any part thereof, Tenant will, at
Tenant's sole cost and expense, promptly remove the same of record within thirty
(30) days after the filing of any such lien or liens or other charge or chattel
mortgage or security interest or conditional xxxx of sale or title retention
agreement and notice of such filing to Tenant by Owner or otherwise. In default
thereof, Owner may cause such lien or liens or other charge or chattel mortgage
or security interest or conditional xxxx of sale or title retention agreement to
be removed of record by payment or bond or otherwise, as Owner may elect, and
Tenant will reimburse Owner for all reasonable costs and expenses incidental to
the removal of any such lien or liens or other charge or chattel mortgage or
security interest or conditional xxxx of sale or title retention agreement
incurred by Owner. Tenant covenants and agrees to indemnify and save harmless
Owner of and from all claims, counsel fees, loss, damage and expenses whatsoever
by reason of any liens, charges, chattel mortgages, security interests,
conditional bills of sale, title retention agreements or payments of any kind
whatsoever that may be incurred or become chargeable against Owner, the building
or BSP, or said changes, improvements or alterations, or any part thereof, by
reason of any work done or to be done or materials furnished or to be furnished
to or upon the Demised Premises in connection with such changes, improvements or
alterations, except insofar as any of the same result from work performed by or
for Owner .
D. Subject to the provisions of Article 3 hereof dealing with Initial
Alterations, and provided that Owner is not performing or causing the
performance of the Work, Tenant hereby covenants and agrees to indemnify and
save harmless Owner of and from all claims, reasonable counsel fees, loss,
damage and expenses whatsoever by reason of any injury or
47
damage, howsoever caused, to any person or property occurring prior to the
completion of such changes, improvements or alterations or occurring after such
completion, as a result of anything done or omitted in connection therewith or
arising out of any fine, penalty or imposition or out of any other matter or
thing connected with any work done or to be done or materials furnished or to be
furnished in connection with such changes, improvements or alterations performed
by Tenant or at the request of Tenant. At any and all times during the period of
such changes, improvements or alterations, Owner shall be entitled to have a
representative or representatives on the site to inspect such changes,
improvements or alterations, and such representative or representatives shall
have free and unrestricted access to any and every part of the Demised Premises.
E. Tenant agrees that it will not, either directly or indirectly, use
any contractors, labor and/or materials if the use of such contractors, labor
and/or materials would or will create any difficulty with other contractors,
subcontractors and/or labor then engaged by Tenant or Owner or others in the
construction, maintenance and operation of the building or any part thereof.
Tenant and its contractors and mechanics may, prior to the commencement of the
term hereof, enter upon the Premises at all reasonable hours, at the sole risk
of Tenant, for the purpose of making such changes, improvements or alterations,
provided that Tenant and its contractors and mechanics do not interfere with
Owner, its contractors, or with the occupants of other parts of the building.
Such entry shall be upon all of the terms and conditions of this lease other
than Owner's obligation to provide services and Tenant's obligation to pay rent.
Any changes, improvements or alterations shall comply with all laws and
ordinances, and all rules, orders and regulations of all governmental and
quasi-governmental agencies, authorities, bureaus, departments and officials,
and of all insurance bodies, at any time duly issued or in force, applicable to
the building, the Demised Premises, or any part thereof.
62. TENANT'S ADDITIONAL COVENANTS
A. Tenant shall not make any exterior architecture change (whether by
alteration, replacement, rebuilding .or otherwise) or change the exterior color
and/or architectural treatment of the Demised Premises or of the building or any
part thereof.
B. Tenant shall not use the plumbing facilities for any purpose other
than that for which they were constructed, or dispose of any garbage or other
foreign substance therein, whether through the utilization of so called
"disposal" or similar units, or otherwise. The plumbing facilities shall not be
used for refrigeration purposes or for any other purposes other than that for
which they are constructed, no foreign substance of any kind shall be thrown
therein, and the expense of any breakage, stoppage, or damage resulting from a
violation of this provision shall be borne by Tenant;
C. Tenant shall not subject any fixtures or equipment in or on the
Demised Premises which are affixed to the realty, to any mortgage, liens,
conditional sales agreements, security interest or encumbrances, except as is
otherwise permitted hereunder; Notwithstanding the foregoing, Tenant shall have
the right to lease office equipment and supplies in the ordinary course of
Tenant's business, and shall have the right to grant liens and to enter security
agreements and conditional sales agreements in connection therewith.
48
D. Tenant shall not suffer, allow or permit any odor or any noise,
vibration or other effect to constitute a nuisance or otherwise interfere with
the safety, comfort or convenience of Owner or other Tenants in the building.
63. SECURITY
Supplementing the provisions of Article 34, Tenant has deposited with
Owner the sum of $17,002.67 as security hereunder, with a cash deposit. Tenant
shall increase the security in accordance with and at the same time base rent
increases are effective hereunder so that one (1) month's base rent shall be on
deposit at all times. If at any time Tenant shall be in default in the payment
of rent or in the keeping, observance or performance of any other covenant,
agreement, term, provision or condition, Owner may at its election apply the
security so on deposit with Owner, to the payment of any such rent or to the
payment of the costs incurred or to be incurred by Owner in curing such default,
as the case may be. If, as a result of any such application of all or any part
of such security, the amount of security so on deposit with Owner shall be less
than required, Tenant shall forthwith deposit with Owner an amount equal to the
deficiency. If at the expiration of the term of this lease Tenants shall not be
in default in the keeping, observance or performance of any such other covenant,
agreement, term, provision or condition, then Owner shall, within a reasonable
time after the expiration of said term, return to Tenant said security, if any,
then on deposit with Owner.
64. IMPROVEMENTS
All improvements, changes and alterations made by or on behalf of Tenant
in and/or to the Demised Premises (including work done by Owner at the request
of Tenant, but excluding items of personally not affixed to the real property
and Tenant's trade fixtures) shall, upon installation, become the property of
Owner and shall be surrendered by Tenant to Owner at the expiration or sooner
termination of the term of this Lease. If any security interest, chattel
mortgage or other lien or encumbrance shall attach to the Tenant's Initial
Improvements or any change, improvement or alteration thereto, Tenant will, at
Tenant's sole cost and expense, promptly cause same to be released of record
within ten (10) days after notice of the attachment thereof, failing which Owner
may cause same to be released by payment, bond or otherwise, as Owner may elect,
and Tenant will reimburse Owner for all reasonable costs and expenses incidental
to the removal of any such lien, security interest, chattel mortgage or other
lien or encumbrance, incurred by Owner. Upon failure of Tenant to so reimburse
Owner at its option shall become Owner thereof. Tenant further covenants and
agrees that, prior to opening for business at the Demised Premises, the entire
cost of all changes, improvements and alterations made by or on behalf of Tenant
at Tenant's expense (other than punch list items still to be completed,
reasonable hold-backs to ensure completion, or items reasonably in dispute) will
be fully paid for.
65. 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 provision
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
49
permitted by law. Each covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed, shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent on any other
provision of this Lease.
B. This Lease shall be governed in all respects by the laws of the
State of New York.
C. Without incurring any liability to Tenant, Owner may permit access
to the Demised Premises and open the same, whether or not Tenant shall be
present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, Xxxxxxxx or court officer entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, Tenant's property or for any other lawful purpose (but this
provision and any action by Owner hereunder shall not be deemed a recognition by
Owner that the person or official making such demand has any right or in or to
this Lease, or in or to the Demised Premises), or upon demand of any
representative of the fire, police, building, sanitation or other department of
the city, state or federal governments, in each case presenting appropriate
identification. Owner shall in such cases take reasonable steps to secure the
confidentiality of Tenant's business secrets.
D. 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 in cases of
assignment, sublet, and construction, provided that the parties submit to
arbitration as provided above on an expedited basis , unless Owner has acted in
bad faith.
E. This Lease shall not be binding upon Owner or Tenant unless and
until it is signed by Owner or Tenant and a fully executed copy thereof is
delivered to the other party.
F. This Lease shall be construed without regard to any presumption or
other role requiring construction against the party causing this Lease, or any
part thereof to be drafted.
66. CONDITION OF DEMISED PREMISES
A. Supplementing the provisions of Article 15 hereof Owner makes no
representations as to the size of the Demised Premises. Tenant shall give proper
notice to Owner of any notice it receives of the violation of any law or
requirement of any public authority with respect to the Demised Premises or the
use or occupation thereof. If any governmental authority having jurisdiction
over the Demised Premises shall require additional fire fighting equipment,
Tenant agrees to install and maintain such equipment at its sole cost and
expense.
B. Tenant covenants and agrees to conduct its business at the Demised
Premises so as to prevent any noxious or offensive odors from said Demised
Premises and Tenant further covenants and agrees to install, operate and
maintain proper and sufficient flue, ventilating and exhaust systems and any
other equipment, electrical and/or mechanical or any kind, all at Tenant's sole
cost and expense, as deemed necessary or desirable to prevent
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or xxxxx such odors, and in full compliance with all laws, codes, resolution,
rules, regulations of the premises and otherwise, requirements and
recommendations of all governmental and quasi-governmental agencies or
authorities.
67. NOTICE
Any xxxx, notice or other communication which either party may desire or
be required to give to the other under this lease shall be deemed sufficiently
given or rendered if in writing and delivered by registered or certified mail,
return receipt requested, as follows:
1. From Owner to Tenant at: 2. From Tenant to Owner at:
Electro-Optical Sciences, Inc. Bridge Street Properties, LLC
0 Xxxx Xxxx Xxxxxx Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxx Xxxx 00000
Attn: President
With a copy to: Xxxxxxx Xxxxxxx Attn: Xxxxxxx Xxxxxxxx
After the Commencement Date, either party shall have the right to substitute
addresses for such notices upon prior written notice to the other given in the
manner hereinabove set forth.
68. ASSIGNMENT AND SUBLETTING
A. Each time Tenant desires to assign this Lease or sublease its
interest in the Demised Premises, it shall submit in writing to Owner (i) the
name and address of the proposed assignee or sublessee, (ii) a counterpart of
the proposed agreement or sublease, (iii) information satisfactory to Owner as
to the nature and character of the business of the proposed assignee or
sublessee, and (iv) biographical, banking, financial, credit and other
information relating to the proposed assignee or sublessee reasonably sufficient
to enable Owner to determine the character and financial responsibility of the
proposed assignee or sublessee. Any such consent of Owner shall be subject to
the terms of this paragraph and conditioned upon (i) there being no default by
Tenant beyond any applicable grace or notice period under any of the terms,
covenants and conditions of this Lease at the time that Owner's consent is
requested and on the date of the commencement of the term of any sublease or the
effective date of any such proposed assignment, (ii) delivery to Owner of a
written statement duly executed by Tenant acknowledging that Tenant shall
continue to remain directly and primarily liable to Owner under this lease for
the remaining term notwithstanding such sublease or assignment, (iii) the
proposed use by such assignee or sublessee being in compliance with Articles 2
and 15 of the printed form of this lease, (iv) Tenant paying Owner the
reasonable out of pocket costs and expenses, including architect's engineer's
and attorneys' and brokerage fees, paid by Owner with respect to such
subletting. Further, and as an additional condition to Owner's approval of any
sublease, Tenant shall remit to Owner fifty (50%) percent of any and all rent
and additional rent Tenant receives, as and when received, pursuant to the
sublease, in excess of the rent and additional rent provided for in this lease
after deducting all reasonable costs and expenses including brokerage,
advertising, market concessions, fitup, legal and other professional fees.
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C. Upon receiving Owner's written consent, Tenant shall deliver to
Owner within ten (10) days after execution thereof a true copy of the duly
executed sublease or assignment agreement. Any such sublease shall provide that
the sublessee shall be subject to and shall comply with all applicable terms and
conditions of this lease to be performed by Tenant hereunder.
69. NO RECORDING
Tenant expressly warrants and represents that it will not record this
lease.
70. ATTORNEYS FEES & REIMBURSEMENT
Notwithstanding anything to the contrary contained in this lease, Tenant
shall reimburse Owner as additional rent for the reasonable expenses of
attorney's fees, and disbursements Owner incurs which arise out of or are caused
by (a) Tenant's default or threatened default under the terms of this lease,
whether an action, suit or proceeding is commenced based upon such default,
providing that Owner has substantially prevailed in such dispute, or (b)
Tenant's request of Owner to review or execute documents, including without
limitation, assignment, sublease, or occupancy documents in connection with this
lease.
71. ATTORNMENT
If the Demised Premises, building or land where the building is located is
or will be encumbered by a mortgage, and the mortgage is foreclosed, or if the
Demised Premises, building or property is sold pursuant to a foreclosure or by
reason of a default under a mortgage, the following shall apply notwithstanding
the foreclosure, the sale, or the default: (i) Tenant shall not disaffirm this
lease or any of its obligations under this lease; (ii) at the request of the
applicable mortgagee or purchaser at a foreclosure or sale, Tenant shall attorn
to the mortgagee or purchaser, and at the option of such mortgagee or purchaser
execute a new lease for the Demised Premises setting forth all the provisions of
this lease except that the term of the new lease shall be for the balance of
this lease. In confirmation of this attornment, Tenant shall promptly execute
and deliver at Its own cost and expense, any instrument, in recordable form, if
required, that Owner or any mortgagee may request to evidence such attornment,
and Tenant hereby constitutes and appoints Owner attorney-in-fact for Tenant to
executed any such instrument for and on behalf of Tenant.
72. ADDITIONAL REMEDIES
In the event that Owner shall pay any sum of money or do any act which
shall require the expenditure of any sums by reason of the failure of Tenant to
perform any of the covenants, terms or conditions contained in this lease,
Tenant covenants to repay immediately such sums to Owner within 20 days after
demand, together with interest thereon at the rate of twelve (12%) percent per
annum shall be added as additional rent to the next monthly installment of base
rent becoming due. Nothing contained herein shall be construed to postpone the
right of Owner immediately upon expending such sums, to collect such sums, with
interest at the aforesaid rate, by action or otherwise.
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73. MORTGAGES
If, in connection with obtaining, continuing or renewing financing for
which the Demised Premises, building or land or any interest therein represents
collateral in whole or in part, a lender or other mortgagee shall request
modifications of this lease as a condition of financing, Tenant will not
unreasonably withhold or delay its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or adversely
affect the Tenant's leasehold interest created hereunder or decrease the size of
the Demised Premises.
74. DEMISED PREMISES
If the general location, size and layout of the Demised Premises are
outlined in Exhibit A, such Exhibit A shall not be deemed to be a warranty,
representation or agreement on the part of Owner that the Demised Premises and
the building are as indicated thereon. Nothing in this lease shall be construed
as a grant or demise by Owner to Tenant of the roof or exterior walls of the
building, of the space above and/or below the Demised Premises, of the parcel of
land on which the Demised Premises is located, and/or any parking or other areas
adjacent to the building.
75. OWNER'S CONSENT
If in this lease it is provided that Owner's consent or approval as to any
matter will not be unreasonably withheld, and it is established by a court or
body having final jurisdiction thereof that Owner has been unreasonable, the
only effect of such finding shall be that Owner shall be deemed to have given
its consent or approval, but Owner shall not be liable to Tenant or any third
party in any respect for money damages by reason of withholding its consent,
unless Owner's refusal to grant consent or approval was done in bad faith.
76. NO LIENS
Notwithstanding anything contained in this lease to the contrary, Tenant
covenants and warrants that it shall not directly or indirectly create or permit
or suffer to be created or to remain, and will promptly after notice thereof
discharge or cause to be discharged, any mortgage, lien, encumbrance or charge
on pledge of, security interest in or conditional sale or other title retention
agreement with respect to the Demised Premises, except as expressly permitted
elsewhere in this lease.
77. PARKING
A. Owner shall provide Tenant, at no cost to Tenant, for the
convenience of its employees and invitees during regular business hours ten (10)
nonspecified parking space(s) located in area or areas adjacent to 0 Xxxxxx
Xxxxxx or 0 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx, designated by notice sent by
Owner from time to time throughout the term of this lease. Owner reserves the
express right to change the location of these parking spaces as in its sole
discretion it deems appropriate from time to time. Tenant's privilege and use of
these parking spaces are subject to the Owner's rules and regulations as set
forth herein or as
53
otherwise established by Owner and in conformity with all local rules,
regulations and ordinances of the Village of Irvington and any other government
entity having jurisdiction over the premises.
B. Tenant covenants and agrees that its employees and invitees shall
not at any time cause any vehicle to be parked, placed or remain within and
along the perimeter of the building, including any and all fire lanes, parking
spaces and areas, roadway and driveways or any other area controlled by Owner,
except in areas designated by Owner for Tenant's use.
C. Use of all parking spaces and any other parking areas, roadways and
driveways by Tenant, its employees or invitees will be at their own risk, and
Owner shall not be liable for any injury to person or property, or for loss of
damage to any automobile or its contents, resulting from theft, collision,
vandalism or any other cause whatsoever. Owner shall have no obligation
whatsoever to provide a security guard or any other personnel or device to
patrol, illuminate, monitor, guard or secure any parking area. If, however,
Owner does so provide such guard, personnel or device, it shall be solely for
Owner's convenience, and Owner shall not be liable for any act or omission of
such guard, personnel or device in failing to prevent any such theft, vandalism,
loss injury or damage.
D. There shall be no overnight parking. Tenant shall cause its
employees and invitees to remove their automobiles from all parking areas at the
end of the working day. If any vehicle owned or used by Tenant, its employees or
invitees remains in any parking area, all costs, expenses and liabilities
incurred by Owner in removing said vehicle, or any damages resulting to such
vehicle or to Tenant's property or property of others by reason of the presence
or removal of such vehicle shall be paid by Tenant to Owner as additional rent
as and when billed by Owner.
E. If space is available, Owner agrees to provide Tenant with an
unspecified number of additional parking spaces in consideration of Tenant's
payment of additional rent at the rate of $100 per space per month ("Parking
rent") upon the same terms and conditions as set forth in this Paragraph.
Notwithstanding the foregoing, at the end of the first year of the term of this
lease, the number of parking spaces and parking rent may be increases or
decreased at the discretion of the Owner. Each such installment of additional
rent shall be remitted at the same time and in the same manner as installments
of base annual rent.
78. FORCE MAIEURE
Time for performance by Owner and Tenant of any term, provision or
covenant of this lease shall be deemed extended by time lost. due to delays
resulting from acts of God, strikes, unavailability of materials, civil riots,
floods, material or labor restrictions, by government authority, and any other
cause not within the reasonable control of Owner. Financial inability of either
party shall not constitute a cause for delay hereunder.
79. RELOCATION
Notwithstanding anything to the contrary contained herein, provided Tenant
and Owner (or a company which controls, is controlled by or under common control
with
54
Owner) have entered into a lease or other commitment whereby Tenant will occupy
approximately 8700 gross rentable square feet, more or less, of space in 0
Xxxxxx Xxxxxx, within BSP (the "Other Lease"), Tenant shall have a one-time
option to surrender the Premises ("Termination Option") and relocate to such
other premises in accordance with the following terms and conditions:
a. If Tenant desires to exercise the Termination Option, Tenant shall
give Owner irrevocable written notice ("Termination Notice") of
Tenant's exercise of this Termination Option, which shall be
delivered by Federal Express or similar overnight courier, by hand
or by certified mail which Termination Notice must be received by
Owner no later than four months before the effective date. TIME IS
OF THE ESSENCE with respect to Landlord's receipt of the Termination
Notice and all other deadlines in this Article.
b. If Tenant gives the Termination Notice and complies with all the
provisions in this Article, the Lease as it applies to the Premises
only shall terminate at 11:59 p.m. on that date which shall be the
rent commencement date under a lease amendment or separate lease
between the parties or their affiliates for the occupancy by Tenant
of approximately 8,700 square feet of rentable space (or such other
amount as the parties may subsequently agree upon) in BSP located in
Two Bridge Street (the "Termination Date").
c. Tenant's obligations to pay Basic Rent, Additional Rent, and any
other costs or charges under this Lease, and to perform all other
Lease obligations for the period up to and including the Termination
Date, shall survive the termination of this Lease. Owner's
obligation to repay Tenant any overcharges shall survive the
termination of this Lease.
d. [Notwithstanding the foregoing, if at any time during the period on
or after the date on which Tenant shall exercise its Termination
Option, up to and including the Termination Date, Tenant shall be in
default of this Lease beyond any applicable notice and. cure period,
then Owner may elect, but is not obligated, to cancel and declare
null and void Tenant's exercise of the Termination Option and this
Lease shall continue in full force and effect for the full Term
hereof unaffected by Tenant's exercise of the Termination. If Owner
does not cancel Tenant's exercise of the Termination option after
Tenant's default, Tenant shall cure any default within the period of
time specified in this Lease and this obligation shall survive the
Termination Date.
e. In the event Tenant exercises the Termination Option, Tenant
covenants and agrees to surrender full and complete possession of
the Premises to Owner on or before the Termination Date vacant,
room-clean, in good . order and condition, and in accordance with
the provisions of this Lease, and, subject to any contrary provision
in the lease amendment or new lease referred to above, to reimburse
the Owner for the cost of tenant improvements in the Demised
Premises, and thereafter the Premises shall be free and clear of all
55
leases, tenancies, and rights of occupancy of any entity claiming by
or through Tenant.
f. If Tenant shall fail to deliver possession of the Premises on or
before the Termination Date in accordance with the terms hereof,
Tenant shall be deemed to be a holdover Tenant from and after the
Termination Date, and in such event all covenants and terms of the
holdover provisions of the original lease shall apply.
g. Tenant timely exercises the Termination Option in accordance with
this Agreement the Lease as it applies to the Premises shall cease
and expire on the Termination Date with the same force and effect as
if said Termination Date were the date originally provided in this
Lease as the Expiration Date of the Term hereof.
h. If this Lease has been assigned or all or a portion of the Premises
has been sublet, this Termination Option shall be deemed null and
void and neither Tenant nor any assignee or sublessee shall have the
right to exercise such option during the term of such assignment or
sublease.
80. RENEWAL OPTION
Provided that Tenant is then in compliance with all of the terms of this
lease, Tenant shall be allowed to extend this lease for an additional period of
six years commencing on the day following the last day of the term of this
lease. Such extended term shall be pursuant to all the terms and provisions of
this Lease, as the same may have been amended to that date, with the exception
of the amount of rent and determination of base year. The rental rate shall be
market rate or such other rate as the parties may agree upon.
81. ENVIRONMENTAL REPRESENTATION
Owner represents and warrants that Owner has taken no action to pollute or
to create any environmental contamination within the building or on or under the
land adjacent to it, and that Owner has no knowledge of the presence of any
pollution or contamination, including asbestos, within the Demised Premises.
Owner
BRIDGE STREET PROPERTIES LLC
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxx, Managing Member
Tenant
ELECTRO-OPTICAL SCIENCES, INC.
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By: /s/ Xxxxxxx X. Xxxxxxx, V.P.
----------------------------------
Name and Title
57
