STANDARD OFFICE/LOFT LEASE FORM
STANDARD
OFFICE/LOFT LEASE FORM
Agreement
of Lease, made
as
of this 1st
day of
September, in the year 2007, by and between WASHINGTON
GROUP L.L.C.,
a
limited liability company, and 30
MAIN LLC,
a
limited liability company, as tenants in common, each having a mailing address
c/o Two Trees Management Co. LLC, 00 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxx
Xxxx
00000, collectively as landlord, (collectively “Landlord”), and
FUTURE NOW, INC.,
a
Delaware corporation, doing business in the State of New York as Future
Now Group,
having
an address of 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxxxxxxx, Xxx Xxxx 00000, as tenant (“Tenant”).
Witnesseth:
Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord certain premises
known as Suite 419 on the fourth (4th)
floor
of that certain building (the “Building”) known as 00
Xxxxxxxxxx Xxxxxx in the Borough of Brooklyn, County of Kings and City and
State
of New York (which premises are herein the “demised premises” and are located in
the approximate location of said floor shown on the drawing designated
Exhibit
A
attached
hereto and hereby made a part hereof) at the rents provided herein for a
term (the
“Term”) of three (3) years (unless such term shall sooner cease, terminate or
expire as hereinafter provided). The Term shall commence on December
15, 2007 (the “Commencement Date”), and end on December 14, 2010 (the
“Expiration Date”), both dates inclusive.
The
parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
and agree as follows:
Use:
1. The
demised premises shall be used by Tenant, subject to the terms of this Lease,
solely as and for executive and administrative offices for a company that
provides consulting services regarding the internet, marketing, software
development and product licensing, and provides seminars in locations for people
to attend in places other than the demised premises and edits and writes
material for publishing and distribution in places other than the demised
premises, and for no other purposes. Tenant shall not suffer or permit the
demised premises or the Building or any part of either to be used in any manner,
nor suffer or permit anything to be done therein or anything to be brought
into
or kept therein, which, in the judgment of Landlord, shall in any way: impair
the character, reputation or appearance of the Building as a high quality office
building, impair or interfere with any of the Building’s services or the proper
and economic heating, cleaning, air conditioning, ventilating or other servicing
of the Building or the demised premises, impair or interfere with the use of
any
part of the Building, or cause discomfort, inconvenience or annoyance to any
of
the other tenants or occupants of the Building. Tenant shall not use nor permit
the use of the demised premises or the Building or any part of either in
violation of the certificate of occupancy for the demised premises or the
Building, if any, or any ground or underlying lease for the Building and/or
the
land of which the demised premises form a part, if any.
Notwithstanding
anything to the contrary contained herein, Tenant shall not use or permit all
or
any part of the demised premises to be used for any of the following: (1)
overnight stays or residential use of any kind (and Tenant hereby agrees to
provide Landlord following request made therefor with such documentation as
Landlord requests which proves that Tenant is not residing at or living in
the
demised premises, including, without limitation, paperwork filed with the
Internal Revenue Service, utility bills, and/or a copy of a residential lease);
(2) retail sale of any goods that involves the presence of the general public
in
the demised premises; (3) real estate brokerage or property management; (4)
an
employment, personnel or executive search agency; (5) any health care,
rehabilitation, massage, clinic, counseling or exercise facility of any kind,
including, but not limited to, a medical or dental office; (6) any foreign
or
domestic government or any subdivision, agency, department, or instrumentality
thereof, including, without limitation, any foreign, federal, state or local
governmental or quasi-governmental body, agency or department, or any other
authority or entity that is affiliated therewith or controlled thereby, or
any
person, group or entity that enjoys diplomatic, sovereign or any other form
of
immunity from civil or criminal process; (7) any political, labor,
not-for-profit, religious, charitable, eleemosynary, school or educational
entity, or any other similar type of organization; (8) the sale or distribution
of any goods, services or merchandise not expressly permitted by the terms
of
this Lease; (9) the live performance of any form of entertainment, including,
but not limited to, singing and/or the playing of any musical instrument of
any
kind in any manner whatsoever at any time, without regard to whether or not
admission is charged for any live vocal or musical performance; (10) cooking,
other than the warming of prepared foods for employee’s lunches and snacks in a
small microwave oven; (11) a messenger service; (12) banking, cash machine,
check cashing and the like; (13) a recording studio; (14) sale, display or
distribution of lewd or pornographic materials, alcohol, tobacco products or
firearms of any kind; (15) the manufacture of any product; (16) any activity
which involves the storage, use or generation of medical waste, corrosive or
toxic solids, liquids or gasses and/or any hazardous materials; and (17) any
occupancy or use which makes excessive demands on the Building’s services or
facilities beyond what is ordinary, typical and usual for typical office tenants
in the Building.
Base
Rent:
2.
Tenant shall pay Landlord during the Term hereof “annual base rent” (the minimum
rent due and payable under this Lease) without prior demand, offset or deduction
at the rates set forth below (dates inclusive):
|
Dates
|
annual
base rent
|
monthly
installment
|
|||||
|
12/15/07
to 12/14/08
|
$
|
75,264.00
|
$
|
6,272.00
|
|||
|
12/15/08
to 12/14/09
|
$
|
77,521.92
|
$
|
6,460.16
|
|||
|
12/15/09
to 12/14/10
|
$
|
79,847.58
|
$
|
6,653.97
|
|||
Provided
Tenant is not in default under its obligations under this Lease on January
1,
2008, and February 1, 2008, Tenant shall be entitled to a rent credit in the
sum
of $12,544.00 which shall be applied by Landlord in equal installments of
$6,272.00 against the monthly installments of the annual base rent payable
under
this Lease with respect to January, 2008 and February, 2008. In no event shall
the rent credit payable under this paragraph exceed $12,544.00. Notwithstanding
the foregoing, if, prior to the Expiration Date (as the same may be amended
from
time to time), the demised premises are surrendered by Tenant or if Landlord
obtains possession of the demised premises prior to the Expiration Date due
to
default(s) by Tenant under this Lease, then, in either case, Tenant shall
immediately pay Landlord $12,544.00 as additional rent hereunder and such
payment obligation shall expressly survive the expiration or termination of
this
Lease.
Annual
base rent shall be paid in monthly installments in advance on the first day
of
each month during the Term hereof, except that Tenant shall pay the first
monthly installment thereof in advance on the execution hereof by certified
check. Unless and until otherwise designated by Landlord in writing, all annual
base rent and additional rent payable under this Lease shall be paid to
“TTMC
as Nominee for 00-00 Xxxxxxxxxx Xx.”,
c/o
Two Trees Management, 00 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000.
Monthly installments of annual base rent payable for a partial month shall
be
prorated on a per diem basis based upon the number of days in the relevant
month. All taxes, charges, costs, expenses and sums other than annual base
rent
payable by Tenant hereunder are deemed additional rent. Tenant shall pay annual
base rent and additional rent as provided in this Lease 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, at the office of Landlord or such
other place as Landlord may designate, without any set-off or deduction
whatsoever. Any delay or failure of Landlord or its agent to prepare and deliver
any xxxx, statement or invoice shall not constitute a waiver of the right to
collect any payment that may have become due during the term of this Lease,
including, without limitation, retroactive payments for any and all amounts
unbilled. If no date shall be set forth herein for the payment of additional
rent, then such sum shall be due and payable within ten (10) days after the
date
upon which Landlord demands such payment. If additional rent is not paid when
due, Landlord shall have all the rights and remedies with respect to the
collection of the same and the enforcement of the Tenant’s obligation to pay the
same as in this Lease provided, and such rights and remedies as are available
at
law, equity or otherwise, in the case of non-payment of annual base rent.
Although this Article is intended to facilitate the collection rights and
remedies of Landlord under this Lease, it is not intended to alter the principle
of reimbursable items by Tenant to Landlord, which reimbursable items shall
in
no event be deemed “income” to Landlord under any provisions of relevant tax
law, or otherwise. If any out of state check of Tenant is dishonored, all
subsequent checks shall be either certified checks or a check drawn upon a
New
York City Bank that is a member of the New York Clearing House Association
(or
its successor).
Please
Initial: Landlord _____ Tenant _____
Page
1
Security
Deposit:
3.
Tenant has deposited with Landlord the sum of $33,369.85
as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease. It is agreed that Landlord may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any amount payable hereunder as to which Tenant
is
in default under this Lease, or for any sum which Landlord 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 demised premises, whether
such damages or deficiency accrued before or after summary proceedings or
re-entry by Landlord. If Landlord uses, applies or retains any part or all
of
said security, as permitted hereunder, Tenant shall within five (5) days
following demand, deposit with Landlord such amount as is necessary to restore
the security to the amount Tenant is required to deposit with Landlord under
this Article. If Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this Lease, the security Landlord is
then holding shall be returned to Tenant after the date fixed as the end of
the
term hereof and after delivery of possession of the demised premises to
Landlord. If the Building is sold or leased, Landlord shall have the right
to
transfer the security to the purchaser or lessee for the benefit of Tenant
and
Landlord, after giving notice to Tenant, shall be deemed released by Tenant
from
all liability for the return of such security and Tenant shall look solely
to
the new owner or lessee for the return thereof. 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 Landlord nor its successors
or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
Real
Estate Taxes:
4. If
the “Real Estate Taxes” (hereinafter defined) in any twelve (12) month period
commencing July 1st
and
ending the following June 30th
(dates
inclusive) occurring, in whole or in part, during the term hereof (any such
July
to June twelve month period being herein a “Tax Year”) exceed the amount of the
Real Estate Taxes, as finally determined, for the Tax Year commencing July
1,
2007 and ending on June 30, 2008 (the “Base Tax Year”), then Tenant agrees to
pay Landlord 0.931% (“Tenant’s Percentage”) of the difference between such
amounts (the “Tax Escalation Payment”) within ten (10) days after demand made
therefor as additional rent. Tenant’s Tax Escalation Payment shall be prorated
for any Tax Year during the Term which does not consist of twelve (12) full
calendar months. Landlord shall have the right, but not the obligation, to
xxxx
Tenant in one or more installments for the amounts payable under this Article.
Tenant’s obligation to pay additional rent under this Article shall survive the
termination of this Lease and Tenant shall pay all amounts payable under this
Article notwithstanding the fact that an invoice is sent after the Expiration
Date or sooner termination of the Term hereof.
“Real
Estate Taxes” shall mean, for the purposes of this Lease, all taxes, assessments
and impositions (general or special, foreseen or unforeseen, ordinary or
extraordinary) levied, assessed or imposed (including, but not limited to,
real
property taxes and any building improvement district charges and assessments)
by
federal, state or local governments and their political subdivisions upon all
or
part of the improvements and land of which the demised premises forms a part,
including the Building, and any sidewalks, curbs, plazas, air rights and the
like appurtenant to them (the land, improvements and appurtenances collectively
being the “Real Property”), but shall exclude any transfer, income, inheritance
or gift taxes and any tax that does not relate to the Real Property. If, for
any
reason whatsoever, a new tax, charge or assessment of any type, including,
without limitation, a real estate tax, franchise, income, school, capital,
or
use and occupancy tax, shall be assessed, confirmed, imposed or levied against
Landlord and/or all or any part of the Real Property in addition to, or in
substitution in whole or in part for, any tax which would constitute “Real
Estate Taxes”, then such tax or imposition shall be deemed to be included within
the term “Real Estate Taxes”. If Landlord incurs any expenses (including, but
not limited to, reasonable attorneys’ fees) in its efforts to reduce or minimize
the Real Estate Taxes and/or the assessed valuation of the Real Property, any
and all such expenses shall be added to, and made a part of Real Estate Taxes.
If the Real Estate Taxes for any Tax Year during the term hereof, including
the
Base Tax Year, shall be adjusted, corrected or reduced, then all of the Tax
Escalation Payments payable hereunder shall be recalculated using the revised
Real Estate Taxes and Landlord shall credit or refund to Tenant any excess
amount paid by Tenant and Tenant shall pay Landlord any amounts due hereunder
within ten (10) days following demand. Tenant shall have no right to institute
or participate in any real estate tax proceedings relating in whole or in part
to the Real Property, it being understood that the commencement, maintenance,
settlement or conduct thereof shall be in the sole discretion of Landlord.
Tenant shall be liable for all taxes on or against property and trade fixtures
and equipment placed by Tenant in or about the demised premises, and all taxes
on Tenant’s right to occupy the demised premises. If any such taxes are levied
against Landlord or Landlord’s property, and if Landlord pays same, or if the
assessed valuation of Landlord’s property is increased by the inclusion therein
of a value placed upon such property, and if the Landlord pays the taxes based
on such increased assessment, Tenant, upon demand, shall repay to Landlord
the
taxes so paid by Landlord or the portion of such taxes resulting from such
increase in assessment.
Electricity:
5.
Tenant shall pay for all electric current furnished to and/or consumed in the
demised premises. Electric current is provided to the demised premises as
specified in the rider attached to this Lease. Tenant agrees that at all times
its use of electric current shall not exceed the capacity of the Building’s
existing feeders, risers or wiring installation, and Tenant may not use any
equipment which, in Landlord’s reasonable opinion, will overload such feeders,
risers or installations or interfere with the businesses of other tenants or
occupants of the Building. Landlord shall not be liable or responsible to Tenant
for any loss, damages or expenses which Tenant may sustain as a result of any
change in the character of electric service provided to the demised premises.
Utilities
& Other Services:
6.
Unless expressly provided elsewhere in this Lease to the contrary, Tenant shall
pay for any and all utility services furnished to and/or consumed in the demised
premises at any time during the Term. As used herein, “utility services” shall
include, but not be limited to, energy charges, any internet access fees, cable
company services, and local and long distance wired and wireless telephone
charges for voice and/or data. Such obligation shall expressly survive the
expiration or termination of this Lease. Tenant shall indemnify, defend and
hold
Landlord harmless from and against any liability of Landlord for Tenant’s
failure to timely pay for utility services furnished to and/or consumed in
the
demised premises during the Term. Tenant shall pay for cleaning services, trash
collection and air-conditioning as provided in the rider attached hereto.
Building
Services:
7.
Landlord shall: (a) provide passenger elevator service twenty-four hours a
day,
seven days a week; (b) provide freight elevator service only on regular business
days between the hours of 8 a.m. and 4 p.m.; (c) furnish heat, on business
days
between the calendar months of November 1st
and
April 30th
from 8
a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m. and other services which
Landlord has expressly agreed to supply, if any, to the demised premises, when
and as required by law; and (d) clean the public halls and public portions
of
the Building which are used in common by the Building’s tenants. Landlord
reserves the right to stop the aforesaid services when necessary, by reason
of
accident or emergency or for repairs, alterations, replacements or improvements.
As
Is:
8.
Tenant acknowledges that Landlord has afforded Tenant the opportunity for a
full
and complete investigation, examination and inspection of the demised premises
and the Building and Tenant has examined and has made a complete inspection
of
the same and is familiar with the physical condition thereof and agrees to
accept the demised premises and the Building in “as is” condition subject to all
violations, whether or not of record, except as may be expressly set forth
in
the rider hereof to the contrary. Landlord has not made and does not make any
representation as to the physical condition or any other matter affecting or
relating to the demised premises and the Building, except as specifically set
forth in this Lease and Tenant specifically acknowledges that no such
representation has been made. No rights, easements or licenses are acquired
by
Tenant by implication or otherwise except as expressly set forth in the
provisions of this Lease. If one or more governmental licenses or permits shall
be required for the proper and lawful conduct of Tenant’s business in the
demised premises, Tenant shall be responsible for, and shall procure and
maintain, such license or permit.
Please
Initial: Landlord _____ Tenant _____
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Failure
to Give Possession:
9. If
Landlord is unable to deliver possession of all or part of the demised premises
to Tenant on the Commencement Date hereof because of any reason whatsoever,
including, without limitation, the holding-over or failure to surrender
possession by any tenant, subtenant or occupant, construction or work in the
Building or in all or part of the demised premises, or the failure to obtain
a
certificate of occupancy, then Landlord shall not, in any such event, be subject
to any liability for failure to give possession on said date and the validity
of
this Lease shall not be impaired under such circumstances, nor shall the same
be
construed to extend the term of this Lease, but the annual base rent payable
hereunder shall xxxxx equitably according to that part of the demised premises
which has not been delivered (provided Tenant is not responsible for Landlord’s
inability to deliver possession of the demised premises to Tenant or complete
any work) until Landlord delivers to Tenant possession of all of the demised
premises. If Tenant is given possession of all or part of the demised premises
or any other premises prior to the Commencement Date hereof, Tenant covenants
and agrees that such possession and occupancy shall be deemed to be under all
the terms, covenants, conditions and provisions of this Lease, except the
obligation to pay annual base rent. The provisions of this article are intended
to constitute “an express provision to the contrary” within the meaning of
§223-a of the New York Real Property Law.
Alterations:
10.
Tenant shall make no changes in or to the demised premises of any nature without
Landlord’s prior written consent. Landlord’s prior written consent shall not be
unreasonably withheld or delayed if Tenant wants to paint all or any portion
of
the demised premises any color other than black and make other similar cosmetic
minor non-structural interior changes which do not require permit(s) from any
governmental authority and do not affect the quality or structure of the demised
premises’ floor slab and do not affect any system serving the demised premises
and/or the Building, provided Tenant complies with all of the conditions,
provisions and covenants of this Lease and provided Tenant pays Landlord at
the
end of term of this Lease upon demand the amount it will cost Landlord to
restore the demised premises to the condition the demised premises were in
as of
the Commencement Date; except that if Tenant extends to the ceiling with
sheetrock the interior walls that are within the demised premises as of October
1, 2007 and Tenant shall make no other changes to said walls, then at the end
of
the term of this Lease Tenant shall not be obligated to pay Landlord the cost
to
remove said sheetrock extensions to the ceiling. Tenant’s obligation to pay
Landlord to restore the demised premises shall expressly survive the expiration
and/or termination of this Lease. In no event, however, shall Tenant install
or
permit the installation of any art in the demised premises that an artist could
prevent the removal of pursuant to a governmental or court law, code, rule,
regulation or order. In no event shall Landlord be required to consent to any
Tenant Changes that would adversely affect the structure of the Building, the
exterior thereof, any part of the Building outside of the demised premises
or
the mechanical, electrical, heating, ventilation, air-conditioning, sanitary,
plumbing or other service systems and facilities of the Building. Tenant shall,
at its expense, before making any alterations, additions, installations or
improvements: (a) obtain and promptly deliver to Landlord a copy of all permits,
approvals and certificates required by any governmental or quasi-governmental
bodies (and upon completion, certificates of final approval thereof) and (b)
submit to Landlord, for Landlord’s prior written approval, plans, drawings and
specifications of all changes, alterations, additions, improvements and work
(herein “Tenant Changes”) Tenant wants to perform in the demised premises or the
Building. Tenant shall make all revisions to its plans, drawings and
specifications requested by Landlord and shall provide Landlord with all
Landlord requested details. Tenant shall, promptly upon demand, reimburse
Landlord for all reasonable out-of-pocket fees, expenses and other charges
incurred by Landlord and/or its agent in connection with the approval of the
plans, drawings and specifications (including fees paid to other parties for
their opinion and comments).
Immediately
following approval by Landlord, Tenant (or, at Landlord’s option, Landlord at
Tenant’s expense) shall file the approved plans and drawings with the
appropriate governmental and quasi-governmental authorities having jurisdiction.
If requested by Landlord, Tenant shall use an expeditor designated or approved
in advance by Landlord to assist with the filings. Notwithstanding the foregoing
or anything to the contrary contained herein, no consent or approval issued
by
Landlord shall constitute an express or implied representation by Landlord
that
the Building or the demised premises (with or without any Tenant Change) will
be
suitable, feasible or lawful for any general or specific use, purpose or
requirement of Tenant. Tenant shall, at its sole cost and expense, in making
any
Tenant Change, comply with all Legal Requirements (hereinafter defined),
including, without limitation, all requirements of Local Law No. 5 of 1973
of
the City of New York and The Americans With Disabilities Act of 1990, as amended
to date. All materials and equipment used in connection with Tenant Changes
shall be new and first quality and no materials or equipment shall be subject
to
any lien, encumbrance, chattel mortgage, title retention or security agreement.
If any Tenant Change is to be made to the fire safety system, Tenant shall
use
only a contractor (or, if necessary, contractors) reasonably approved by
Landlord and upon the completion of such work, Tenant shall deliver to Landlord
a letter issued by the Building’s fire safety system vendor/service provider
indicating that all fire safety system devices located on the demised premises’
floor are functioning properly and a schedule indicating the dates for the
pre-testing and final testing of the fire safety system (and which final testing
must be within six (6) months of the date the plans for the Tenant Change were
filed with the New York City Department of Buildings). Tenant agrees to carry,
and will cause its contractors and sub-contractors to carry, such worker
compensation, general liability, personal and property damage insurance as
Landlord may require in form, amount, carriers and coverages satisfactory to
Landlord (including, but not limited to, adequate Builder’s Risk coverage). Such
insurance shall be in addition to and not in lieu of any other insurance
required under this Lease. Tenant shall not, at any time prior to or during
the
term of this Lease, directly or indirectly employ, or permit the employment
of,
any contractor, mechanic or laborer in the demised premises, whether in
connection with any Tenant Changes or otherwise, if, in Landlord’s sole
discretion, such employment will interfere or cause any conflict with other
contractors, mechanics, or laborers engaged in the construction, maintenance
or
operation of all or part of the Building. In the event of any interference
or
conflict, Tenant, upon demand of Landlord, shall cause all contractors,
mechanics or laborers causing such interference or conflict to leave the
Building immediately and shall replace such contractors, mechanics and laborers
with contractors, mechanics and laborers who, in Landlord’s reasonable judgment,
will not interfere or conflict with the construction, maintenance or operation
of all or part of the Building and, in such event, Landlord may require that
Tenant use union labor.
Nothing
in this Lease is intended to constitute a consent by Landlord to the subjection
of Landlord’s or Tenant’s interest in the Building, the demised premises and/or
the Real Property to any lien or claim by any person that performs and/or
supplies any work, labor, material, service or equipment to Tenant and/or the
demised premises. Landlord hereby notifies all such persons of such intent
and
each such person agrees, to the extent permitted by law, that by performing
any
work for or supplying any materials to Tenant it accepts that Landlord has
not
granted such consent and that such person shall not have a right to file any
lien or claim against any interest of Landlord in the demised premises, the
Building and/or the Real Property. If any mechanic’s lien is filed against the
demised premises, the Building and/or the Real Property 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 (30)
days
thereafter, at Tenant’s expense, by payment or filing a bond as permitted by
law.
All
fixtures and all paneling, partitions, railings and like installations,
installed in the demised premises at any time, either by Tenant or by Landlord
on Tenant’s behalf, shall, upon installation, become the property of Landlord
and shall remain upon and be surrendered with the demised premises unless
Landlord, by notice to Tenant, elects to relinquish Landlord’s right thereto and
to have them removed by Tenant, in which event the same shall be removed from
the demised premises by Tenant prior to the end of the term of this Lease,
at
Tenant’s expense. Nothing in this article shall be construed to give Landlord
title to, or to prevent Tenant’s removal of, trade fixtures, moveable office
furniture and equipment, but in no event shall Tenant remove any fixtures and
equipment which are part of the operation of the demised premises and/or the
Building. Upon removal of Tenant’s trade fixtures, moveable office furniture and
equipment from the demised premises as permitted herein, or upon removal of
other installations as may be required by Landlord, Tenant shall immediately,
and at its expense, repair and restore the demised premises to the condition
existing prior to any such installations upon removal of same from the demised
premises, or upon removal of other installations as may be required by Landlord,
Tenant shall immediately, and at its expense, repair and restore the demised
premises to the condition existing prior to any such installations, and repair
any damage to the demised premises or the Building due to such removal. All
property permitted or required to be removed by Tenant at the end of the term
which remains in the demised premises after Tenant surrenders possession of
the
demised premises to Landlord shall be deemed abandoned and may, at the election
of Landlord, either be retained as Landlord’s property or removed from the
demised premises by Landlord, at Tenant’s expense. Tenant’s obligations under
this Article shall expressly survive the expiration or sooner termination of
this Lease.
Please
Initial: Landlord _____ Tenant _____
Page
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Repairs:
11.
Subject to Landlord’s rights in Article
18
of this
Lease, Landlord shall maintain and repair the exterior of and the lobby,
elevators and other public portions of the Building relating to the demised
premises and those portions of the electrical system, fire safety system,
sprinkler system and heating system which serve the demised premises but are
outside of the demised premises to the extent necessary so that said systems
are
in good working order at the point where they enter the demised premises;
provided, however, that if such maintenance is due to the acts, omissions,
negligence or willful misconduct of Tenant, then such maintenance shall be
performed at Tenant’s cost and expense and Tenant shall reimburse Landlord for
the cost thereof within ten (10) days following demand made therefor as
additional rent hereunder. Tenant shall, during the term hereof, at its expense,
take good care of, maintain, clean, replace and repair the demised premises
(including all bathrooms and lavatory facilities located within the demised
premises, if any, and, as of September 27, 2007, there are no bathrooms in
Suite
419 in the Building), the windows and window frames, entrance door and the
fixtures and appurtenances therein, and promptly make all non-structural repairs
thereto. Tenant shall make, at its expense, all non-structural repairs to the
Building caused by, or resulting from, moving any of its property and/or caused
by the carelessness, omission, neglect or improper conduct of Tenant, Tenant’s
servants, employees, invitees, or licensees, and whether or not arising from
Tenant’s conduct or omission, when required by other provisions of this Lease.
If any structural repairs are necessary to the Building as a result of Tenant’s
use or manner of use of the demised premises or as a result of moving its
property or as a result of the acts, omissions, negligence or willful misconduct
of Tenant, Tenant’s servants, employees, invitees, or licensees or if any
structural repairs are necessary for any reason in the demised premises, Tenant
shall immediately notify Landlord of the need for such repairs and Landlord
shall make such structural repairs at Tenant’s cost and expense. In no event
shall Landlord have any obligation to perform any work hereunder at overtime
or
premium rates. Tenant shall pay Landlord for the cost and expense of such
structural repairs within ten (10) days following demand therefor as additional
rent hereunder. All maintenance, repairs and replacements to be made to the
fire
safety system serving the demised premises by Tenant shall be made only by
contractors reasonably approved in advance by Landlord. All parties employed
by
Tenant to clean, maintain and/or repair the demised premises shall be approved
in advance by Landlord. Tenant will not clean nor require, permit, suffer or
allow any window in the demised premises to be cleaned from the outside in
violation of Section 202 of the New York State Labor Law or any other applicable
law, or of the Rules of the Board of Standards and Appeals, or of any other
board or body having or asserting jurisdiction. Landlord shall replace, at
Tenant’s expense, any and all plate and other glass damaged or broken from any
cause whatsoever in and about the demised premises; provided, however, that
if
Landlord or its agents through willful misconduct or gross negligence break
any
glass in any windows in the demised premises, then Landlord shall replace such
glass at its expense. If Tenant does not obtain and maintain insurance on all
plate and other glass in the demised premises, Landlord may insure, and keep
insured, at Tenant’s expense, all plate and other glass in the demised premises
for and in the name of Landlord and, in such event, Tenant shall pay Landlord,
as additional rent, for the costs of the premium for said insurance within
ten
(10) days following demand made therefor. Notwithstanding anything to the
contrary set forth herein, Tenant may “self insure” the plate glass insurance
required under this paragraph. All repairs made by Tenant or on behalf of Tenant
shall be of quality or class equal to the original work or construction. If
Tenant fails, after ten (10) days notice, to proceed with due diligence to
make
repairs required to be made by Tenant, the same may be made by Landlord at
the
expense of Tenant, and the expenses thereof incurred by Landlord shall be
collectible, as additional rent, after rendition of a xxxx or statement
therefor. Tenant shall give Landlord prompt notice of any defective condition
in
any plumbing, heating system or electrical lines located in the demised premises
and following such notice, Landlord shall remedy the condition with due
diligence at the expense of Tenant; provided, however, that if the defective
condition was solely and directly caused by Landlord or Landlord’s agent,
employee, contractor or subcontractor, then Landlord shall remedy the condition
at the expense of Landlord. Except as specifically provided elsewhere in this
Lease, there shall be no allowance to Tenant for a diminution of rental value
and no liability on the part of Landlord by reason of inconvenience, annoyance
or injury to business arising from Landlord, Tenant or others making or failing
to make any repairs, alterations, additions or improvements in or to any portion
of the Building or the demised premises, or in and to the fixtures,
appurtenances or equipment thereof. Except as may be expressly set forth herein
to the contrary, it is specifically agreed that Tenant shall not be entitled
to
any set-off or reduction of rent by reason of any failure of Landlord 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.
Landlord’s
Access to Demised Premises:
12.
Landlord and its agents and designees shall each have the right to enter the
demised premises, at all times in the event of an emergency and otherwise at
reasonable times, following reasonable verbal communication or written
correspondence to Tenant, which may be sent or given by an agent or
representative of Landlord, to examine the same, and/or to make such repairs
or
alterations as Landlord may deem necessary or reasonably desirable for the
Building or which Landlord shall be required to or shall have the right to
make
by the provisions of this Lease or any other lease in the Building (and Landlord
may for that purpose erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed). Landlord
and
its agents and designees shall be allowed to take all material into and upon
the
demised premises that may be required for the repairs or alterations above
mentioned as the same is required for such purpose, without the same
constituting an eviction of Tenant in whole or in part, actual or constructive,
and the rent payable hereunder shall in no wise xxxxx while said repairs or
alterations are being made by reason of loss or interruption of the business
of
Tenant because of the prosecution of any such work. Landlord shall use
commercially reasonable efforts to minimize the disturbance but nothing
contained herein shall be deemed to require Landlord to perform the same on
an
overtime or premium pay basis, unless Tenant agrees to pay the cost thereof.
Tenant shall permit Landlord and Landlord’s agents and designees to use,
maintain and replace pipes and conduits in and through the demised premises,
and
to erect new pipes and conduits therein. If Tenant is not present to open and
permit an entry into the demised premises, Landlord or Landlord’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; although such entry shall not render Landlord 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, Landlord may immediately
enter, alter, renovate or redecorate the demised premises without limitation
or
abatement of rent, or incurring liability to Tenant for any compensation, and
such act shall have no effect on this Lease or Tenant’s obligation hereunder.
Tenant acknowledges and agrees that it and its employees, guests, invitees,
and
agents shall not, at any time, for any reason whatsoever, use, access, enter
or
have any rights in or to the roof or roof top area of the Building. Tenant’s
failure to abide by the terms of the foregoing sentence shall be deemed a
material default of the Lease. Landlord shall also have the right to enter
the
demised premises for the purpose of exhibiting them to prospective purchasers
or
lessees of the Building or to prospective mortgagees or to prospective assignees
of any such mortgages or to the holder of any mortgage on the Landlord’s or
ground lessors, if any, interest in the Real Property, its agents or designees.
During the last six (6) months of the term, Landlord may enter the demised
premises at reasonable times for the purpose of showing the same to prospective
tenants and place upon the demised premises the usual notices “To Let” and “For
Sale” which Tenant shall permit to remain without molestation.
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Compliance
with Laws, Building Insurance, Floor Loads:
13. The
term “Legal Requirements” means all laws, statutes, ordinances, codes, orders,
rules, regulations, directives and requirements of all federal, state, county,
city and borough departments, bureaus, boards, agencies, offices, commissions
and other subdivisions thereof, or any official thereof, or of any other
governmental public or quasi-public authority, or of any insurance companies
providing coverage for all or part of the Building, or of any utility company
providing service to all or part of the Building, in any case, whether now
or
hereafter in force, which are applicable to all or part of the Real Property
and
all requirements, obligations and conditions of all instruments of record as
of
the date hereof. Tenant shall, immediately following receipt of the same,
deliver to Landlord a copy of any and all notices Tenant receives of any Legal
Requirement violation pertaining to Tenant, the demised premises, the Building
and/or the Real Property.
During
the term hereof and at all times prior that Tenant is in possession of the
demised premises, Tenant shall, at Tenant’s sole cost and expense, promptly
comply with all present and future Legal Requirements, including, without
limitation, the rules and regulations of the Landmarks Preservation Commission
or a historic preservation district, if applicable. If Tenant has, by its manner
of use of the demised premises or method of operation therein, violated any
Legal Requirements and structural repairs and/or alterations are necessary
to
cure such violations, then, and, in such event, Landlord shall make such
structural repairs and alterations and Tenant shall reimburse Landlord for
the
cost of such work within ten days following demand therefor as additional rent.
For the purposes hereof the cost of any alteration or improvement shall be
deemed to include the cost of labor and materials and the cost to prepare and
file plans for such alteration and improvements. Tenant shall not place a load
upon any floor of the demised premises exceeding the floor load per square
foot
area which it was designed to carry and which is allowed by law. Landlord
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 Landlord’s
judgment, to absorb and prevent vibration, noise and annoyance.
For
purposes of this Lease, “hazardous materials” means any explosives, radioactive
materials, hazardous wastes, or hazardous substances, including, without
limitation, substances defined as “hazardous substances” in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
42
U.S.C. §§ 9601-9657; the Hazardous Materials Transportation Act of 1975, 49
U.S.C. §§ 1801-1812; the Resource Conservation and Recovery Act of 1976, 42
U.S.C. §§ 6901-6987; or any other similar laws (collectively, “hazardous
materials laws”). Supplementing the foregoing parts of this Article, Tenant will
not cause or permit the storage, use, generation, or disposition of any
“hazardous materials” in, on, or about the demised premises or the Building.
Further Tenant will not permit the demised premises to be used or operated
in a
manner that may cause all or part of the Real Property to be contaminated by
any
hazardous materials. Tenant shall be solely responsible for and will defend,
indemnify and hold Landlord, its agents and employees harmless from and against
all claims, costs and liabilities, including, but not limited to, attorneys’
fees and costs, arising out of or in connection with Tenant’s breach of its
obligations in this Article, including, but not limited to, the removal,
cleanup, and restoration work and materials necessary to return the demised
premises and any other property of whatever nature located within the Real
Property to their condition existing prior to the appearance of Tenant’s
hazardous materials. Such indemnity and all obligations under this Article
shall
expressly survive the expiration, cancellation or termination of this Lease.
Tenant will immediately advise Landlord in writing of (1) any and all
enforcement, cleanup, remedial, removal, or other governmental or regulatory
actions instituted, completed, or threatened with respect to any hazardous
materials affecting the demised premises or Real Property; and (2) all claims
made or threatened by any third party against Tenant, Landlord, or the demised
premises relating to damage, contribution, cost recovery, compensation, loss,
or
injury resulting from any hazardous materials in or about the demised premises.
Without Landlord’s prior written consent, Tenant will not take any remedial
action or enter into any agreements or settlements in response to the presence
of any hazardous materials in, on, or about the demised premises or Real
Property. Tenant’s obligations under this Article shall expressly survive the
expiration or other termination of this Lease. Tenant acknowledges and agrees
that Landlord shall have no liability to Tenant for bad air, mold, or “sick
building syndrome”.
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 Landlord. Tenant shall not keep anything in the demised premises
except as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and in such quantity so as not to
increase the rate for fire insurance applicable to the Building, nor use the
demised premises in a manner which will increase the insurance rate for the
Building or any property located therein over that in effect prior to the
commencement of Tenant’s occupancy. If by reason of failure to comply with the
foregoing the fire insurance rate shall, at the beginning of this Lease or
at
any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Landlord, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Landlord which shall have been charged
because of such failure by Tenant. In any action or proceeding wherein Landlord
and Tenant are parties, a schedule or “makeup” or rate for the Building or
demised premises issued by a body making fire insurance rates applicable to
said
premises shall be conclusive evidence of the facts therein stated and of the
several items and charges in the fire insurance rates then applicable to said
premises.
Anything
in this Lease to the contrary notwithstanding, if the New York Board of Fire
Underwriters or the New York Fire Insurance Exchange or any bureau, department
or official of the federal, state or city government recommend or require the
installation of a sprinkler system, or require any changes, modifications or
alterations, or additional sprinkler heads or other equipment be made or
supplied in an existing sprinkler system by reason of Tenant’s business, the
location of partitions, trade fixtures, or other contents of the demised
premises, or for any other reason, or if any such sprinkler system
installations, modifications, alterations, additional sprinkler heads or other
such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate set by any of the aforesaid entities, or by any fire insurance company,
Landlord or Landlord’s agent shall, at Tenant’s expense, promptly make such
sprinkler system installations, changes, modifications and alterations and
supply additional sprinkler heads or other equipment as required, whether the
work involved shall be structural or non-structural in nature. Tenant shall
pay
to Landlord, as additional rent hereunder, for Landlord’s expenses within ten
(10) days following demand made therefor and Tenant shall pay Landlord Tenant’s
proportionate share of the contract price for any sprinkler supervisory service
provided to the demised premises.
Irrespective
of the place of execution or performance, this Lease shall be governed and
construed in accordance with the laws of the State of New York. Tenant hereby
agrees to be subject to in personam jurisdiction in any court of appropriate
subject matter jurisdiction located in the City, County and State of New York
or
located in Brooklyn, Kings County, New York for any action brought by Landlord
against the Tenant arising out of, or relating to this Lease.
Signs: 14.
Tenant shall obtain Landlord’s prior consent for all signs, advertisements,
notices or other lettering that Tenant wants to exhibit, inscribe, paint or
affix on any part of the outside of the demised premises, or in the common
areas
or the outside of the Building, including, without limitation, on the entrance
door to the demised premises and/or in the common hallway adjacent to the
demised premises, or on the inside of the demised premises if the same is
visible from the outside of the demised premises. No awnings or other
projections shall be attached to the Building’s outside walls. Landlord may
remove any such signs, advertisements, notices, lettering, awning and
projections which it did not consent to in advance and Tenant shall pay Landlord
upon demand for the expense incurred by such removal as additional rent
hereunder.
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Garbage:
15.
Tenant shall remove all refuse and rubbish from the demised premises and shall
deposit the same in the receptacles and in the locations designated and in
the
manner described by Landlord. Tenant shall, at its sole cost and expense, comply
with all Legal Requirements regarding the collection, sorting, separation and
recycling of waste products, garbage, refuse and trash. Tenant shall sort and
separate such waste products, garbage, refuse and trash into such categories
as
provided by law and as requested by Landlord. Each separately sorted category
of
waste products, garbage, refuse and trash shall be placed in separate
receptacles reasonably approved by Landlord. Tenant shall remove, or cause
to be
removed, at its expense, by a contractor reasonably acceptable to Landlord,
at
Landlord’s sole discretion, such items as Landlord may expressly designate.
Landlord may, at its option, refuse to collect or accept from Tenant waste
products, garbage, refuse or trash (a) that is not separated and sorted as
required by Legal Requirements or (b) which consists of items which are not
ordinary, typical and usual for typical office tenants in the Building or if
ordinary, typical and usual, if such items are in such quantities and amounts
as
are not ordinary, typical and usual for typical office tenants in the Building
who occupy the same rentable square footage as Tenant, and to require Tenant
to
arrange for such collection at Tenant’s sole cost and expense, utilizing a
contractor satisfactory to Landlord. If so required, Tenant shall immediately
thereafter arrange for such collection at Tenant’s sole cost and expense,
utilizing a contractor satisfactory to Landlord. Tenant shall pay all costs,
expenses, fines, penalties, or damages that may be imposed on Landlord or Tenant
by reason of Tenant’s failure to comply with the provisions of this Article,
and, at Tenant’s sole cost and expense, shall indemnity, defend and hold
Landlord harmless (including reasonable legal fees and expenses) from and
against any actions, claims and suits arising from such noncompliance, utilizing
counsel reasonably satisfactory to Landlord. If the demised premises be or
become infested with vermin, Tenant shall, at its expense, cause the same to
be
exterminated.
Additional
Covenants: 16.
Tenant covenants and agrees for itself, its officers, employees, contractors,
agents, servants, licensees, invitees, subtenants, concessionaires, and all
others doing business with Tenant (hereinafter for the purposes of this Article,
collectively referred to as “Tenant”) that:
1. Tenant
shall not obstruct or encumber the Building’s common areas, including, without
limitation, the sidewalks, entrances, driveways, passages, courtyards,
elevators, vestibules, stairways, corridors or halls, nor use them for any
purpose other than going to and from the demised premises. All deliveries shall
be made in a prompt and efficient manner using elevators and passageways
designated for such type of delivery by Landlord and hand trucks equipped with
rubber tires and sideguards.
2. Tenant
shall not use the bathrooms, sinks, toilets and plumbing fixtures for any
purposes other than those for which they were designed or constructed, and
no
sweepings, rubbish, rags, acids, liquids, chemicals or other substances shall
be
poured or deposited therein. If Tenant violates the foregoing, Tenant shall
pay
Landlord for all resulting repairs as additional rent hereunder and such
obligation shall survive the expiration of the term of this Lease.
3. Tenant
shall not hang, shake, sweep or throw anything out of any Building window,
nor
sweep or throw, or permit to be swept or thrown, from the demised premises,
any
dirt or other substances into any of the Building’s common areas, elevators,
stairwells or halls.
4.
Tenant
shall not disturb or interfere in any way with other Building tenants or those
having business in the Building. Tenant shall not use, keep, or permit to be
used or kept, any foul or noxious gas or substance in the demised premises,
nor
permit or suffer the demised premises to be occupied or used in a manner
offensive or objectionable to Landlord or other Building occupants by reason
of
noise, odors, and or vibrations. Further, Tenant shall not permit the emission
from the demised premises of any objectionable noise or odor. Tenant shall
not
install or use any equipment that could have, in Landlord’s reasonable judgment,
an adverse effect on the demised premises, the Building and/or the comfort
or
convenience of other tenants and occupants of the Building. Tenant shall not
injure, overload, deface, commit waste, nuisance or otherwise harm the demised
premises or any part thereof.
5.
No
bicycles, vehicles, animals, fish or birds may be kept in or about the Building.
Tenant covenants and agrees that there shall be no smoking in or on any portion
of the Building.
6. Freight,
furniture, business equipment, merchandise and bulky matter of any description
shall be delivered to and removed from the demised premises only on the freight
elevators and only during hours, and in a manner approved by Landlord. Landlord
reserves the right to inspect all freight to be brought into the Building,
and
to exclude from the Building all freight which it deems a security risk or
a
violation of any of the terms of this Lease.
7. Canvassing,
soliciting and peddling in the Building is prohibited and Tenant shall cooperate
to prevent the same. Tenant shall not have barbering or boot-blacking services
provided in the demised premises.
8. Landlord
shall have the right to maintain any reasonable security system it deems
necessary in the Building, including, without limitation, a system requiring
Building passes, metal detectors and identification checks. Tenant shall not
have a claim against Landlord by reason of Landlord excluding from the Building
any person who does not pass Landlord’s reasonable security requirements.
Landlord may prevent access to the Building at all times, except on business
days from 8:00 a.m. to 6:00 p.m. and on Saturdays from 8:00 a.m. to 1:00 p.m.,
provided that Tenant is provided with a means of accessing the demised premises
before and after said hours, such as, by way of example only, a key to the
front
door of the Building.
9.
Landlord shall have the right to prohibit any advertising by Tenant which in
Landlord’s opinion, tends to impair the reputation of the Building or its
desirability, and upon written notice from Landlord, Tenant shall refrain from
and discontinue such advertising.
Rules
and Regulations:
17.
Tenant and Tenant’s servants, employees, agents, visitors, and licensees shall
observe faithfully, and comply strictly with such reasonable rules and
regulations as Landlord or Landlord’s agents may from time to time adopt. Notice
of any rules or regulations shall be given in such manner as Landlord may elect.
Nothing in this Lease shall be construed to impose upon Landlord 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 Landlord shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees.
Building
Alterations:
18.
Tenant acknowledges that from time to time, throughout the term of this Lease,
Landlord may perform or have performed work in and about the Building and such
work may result in noise and disruption to Tenant’s business. Landlord shall
have the right, at any time, without the same constituting an eviction and
without incurring liability to Tenant therefor, to change (i) the arrangement,
number and/or location of the Building’s entrances, hallways, passageways,
doors, doorways, corridors, elevators, stairs, toilets and other public parts,
provided that in so doing, Landlord does not deny Tenant reasonable means of
access to the demised premises for the conduct of Tenant's business, (ii) the
Building’s facade and exterior and/or (iii) the name, number and/or designation
by which the Building may be known. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Landlord by reason
of
inconvenience, annoyance or injury to business arising from Landlord performing
or causing to be performed any work in the Building and/or making any of the
aforesaid changes and/or arising from another tenant or occupant making any
repairs in the Building. Landlord’s rights under this Article shall be
exercised, as far as commercially reasonable and practicable, in such manner
as
to avoid unreasonable interference with Tenant's use of the demised premises;
provided, however that Landlord shall not be obligated to pay overtime or
premium rates. If an elevator shaftway or vault is located in whole or in part
within the demised premises, Tenant expressly acknowledges to Landlord that
it
understands that said elevator shaftway and any elevator therein and such vault
are not included within and are not a part of the demised premises. Tenant
hereby acknowledges and agrees that Landlord may at any time and from time
to
time seal up any elevator shaftway and vault in the Building, including, without
limitation, any elevator shaftway and/or vault located within all or part of
the
demised premises and Landlord reserves the right to remove the elevator from
said shaftway and deck over any shaftway at any time at its sole option.
Excavation
Shoring:
19. If
an excavation shall be made upon land adjacent to or under the Building, or
shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, a license to enter upon the demised
premises for the purpose of doing such work as said person shall deem necessary
to preserve the Building’s walls from injury or damage and to support the same
by proper foundations, without any claim for damages or indemnity against
Landlord, or diminution or abatement of rent.
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Property
Loss, Indemnity, Tenant’s Insurance:
20.
Landlord,
its officers, agents, employees, subsidiaries and affiliated entities and
corporations shall not be liable for any loss of, theft of, damage to or
destruction of any of Tenant’s goods, merchandise, fixtures, furniture or other
property of whatsoever nature, caused by fire, theft, carelessness or any other
cause whatsoever, except for Landlord’s negligence or willful misconduct, and
Tenant hereby releases and waives any right of recovery against Landlord, its
officers, agents, employees, subsidiaries and affiliated entities and
corporations for any such loss other than for losses caused by Landlord’s
negligence or willful misconduct. Tenant
shall procure a waiver of subrogation on the part of the insurer against such
parties by an endorsement to all insurance policies whereby the insurer
recognizes the provisions of this Article. The foregoing waiver shall be in
force only if the insurance policies contain a clause providing that such a
waiver shall not invalidate the insurance. Landlord and its agents shall not
be
liable for any damage caused by other tenants or persons in, upon or about
said
Building or caused by operations in connection with any private, public or
quasi
public work. If at any time any windows of the demised premises are temporarily
or permanently closed, or bricked up for any reason whatsoever, Landlord shall
not be liable for any damage Tenant may sustain thereby and Tenant shall not
be
entitled to any compensation therefor, nor abatement of rent, nor shall the
same
release Tenant from its obligations hereunder nor constitute an eviction;
however, Landlord shall not have the right to permanently close or brick up
any
of the demised premises’ windows except where and when required by law.
Tenant
hereby indemnifies and saves harmless Landlord from and against any claims
and
all loss, cost, liability, damage and/or expense, including, but not limited
to,
reasonable counsel fees, penalties and fines, incurred in connection with or
arising from (i) any default by Tenant in the observance or performance of
any
of the provisions, covenants or conditions of this Lease on Tenant’s part to be
observed or performed, (ii) the use or occupancy or manner of use or occupancy
of the demised premises by Tenant or any person claiming through or under
Tenant, or (iii) any acts, omissions, or negligence of Tenant or any contractor,
agent, servant, employee, visitor or licensee of Tenant, or any person claiming
through or under Tenant, in or about the demised premises. If any action or
proceeding shall be brought against Landlord based upon any such claim, Tenant,
upon notice from Landlord, shall cause such action or proceeding to be defended,
at Tenant’s expense, by counsel acting for Tenant’s insurance carriers in
connection with such defense or by other counsel reasonably satisfactory to
Landlord. This indemnity shall not require any payment by Landlord as a
condition precedent to recovery. In addition, if any person not a party to
this
Lease shall institute any other type of action against Tenant in which Landlord
shall be made a party defendant, Tenant shall indemnify, hold Landlord harmless
from and defend Landlord from all liabilities and costs by reason thereof.
If,
on account of the failure of Tenant to comply with the provisions of this
Article, Landlord is adjudged a co-insurer by its insurance carrier, then any
loss or damage Landlord shall sustain by reason thereof shall be borne by Tenant
and shall be immediately paid by Tenant upon receipt of a xxxx therefor and
evidence of such loss.
To
the
extent not covered by the insurance required to be carried by Tenant hereunder
and not covered by any other insurance then maintained by Tenant, Landlord
hereby indemnifies and saves harmless Tenant from and against any claims and
all
loss, cost, liability, damage and/or expense, including, but not limited to,
reasonable counsel fees, penalties and fines, to the extent incurred in
connection with or arising from (i) any default by Landlord in the observance
or
performance of any of the provisions, covenants or conditions of this Lease
on
Landlord’s part to be observed or performed, or (ii) any acts, omissions, or
negligence of Landlord, or any contractor, agent, servant, employee or visitor
of Landlord, in or about the Building. If any action or proceeding shall be
brought against Tenant based upon any such claim, Landlord, upon notice from
Tenant, shall cause such action or proceeding to be defended, at Landlord’s
expense, by counsel acting for Landlord’s insurance carriers in connection with
such defense or by other counsel reasonably satisfactory to Tenant. This
indemnity shall not require any payment by Tenant (other than with respect
to
insurance premiums) as a condition precedent to recovery.
Commencing
on the date Tenant is given possession of the demised premises and thereafter
during the term of this Lease, Tenant shall provide and maintain comprehensive
general liability policies with broad form endorsements and water damage legal
liability coverage against any and all liability occasioned by accident or
occurrence, such policies to be written by recognized and well-rated insurance
companies authorized to transact business in the State of New York, and shall
have a limit of not less than $1,000,000 per occurrence for bodily or personal
injury (including death), $2,000,000 for more than one occurrence and $500,000
for loss and damage to property. Tenant shall obtain and maintain “All Risk”
insurance having extended coverage for fire and other casualties for its
personal property, fixtures and equipment for the full replacement value thereof
and plate glass insurance covering all plate glass in the demised premises.
If
at any time during the term of this Lease it appears, in Landlord’s reasonable
judgment, that public liability or property damage limits in New York City
for
premises similarly situated, due regard being given to the use and occupancy
thereof, are higher than the foregoing limits, then Tenant shall increase the
foregoing limits accordingly. Landlord, its managing agent, leasing agent and
mortgagee(s) and ground lessors, as appropriate, shall be named as additional
insureds in the aforesaid general liability insurance policies. All policies
shall provide that Landlord shall be given thirty (30) days’ prior notice of
cancellation of such insurance. Tenant shall deliver to Landlord evidence of
such insurance policies prior to occupying the demised premises. All premiums
and charges for the aforesaid insurance shall be paid by Tenant and if Tenant
shall fail to make such payment when due, Landlord may pay it (after notice
and
expiration of period to cure) and the amount thereof shall be repaid to Landlord
by Tenant on demand and the amount thereof may, at the option of Landlord be
added to and become a part of the additional rent payable hereunder. Tenant
shall not violate or permit to be violated any condition of any of said policies
and Tenant shall perform and satisfy the requirements of the companies writing
such policies.
Destruction,
Fire and Other Casualty:
21. If
the demised premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give immediate notice thereof to Landlord and this Lease
shall continue in full force and effect except as hereinafter set forth. If
the
demised premises shall be partially damaged by fire or other casualty, the
damages shall be repaired by and at the expense of Landlord and the annual
base
rent, until such repairs shall be made, shall xxxxx equitably according to
the
part of the demised premises which is unusable by Tenant or, if by reason
thereof, the demised premises are rendered untenantable, said annual base rental
shall totally xxxxx until the demised premises are tenantable. After any such
casualty, Tenant shall cooperate with Landlord by removing from the demised
premises as promptly as reasonably possible, all of Tenant’s salvageable
inventory and movable equipment, furniture, and other property so that Landlord
may make repairs. Notwithstanding the foregoing, if the demised premises or
the
Building shall be damaged to such extent that Landlord shall decide to demolish
same, or not to rebuild same, then, and in such event, Landlord may terminate
this Lease upon notice to Tenant given within ninety (90) days following such
event, and upon the date specified in such notice, which date shall not be
less
than thirty (30) days nor more than sixty (60) days following the giving of
said
notice, this Lease shall terminate and Tenant shall vacate and surrender the
demised premises to Landlord. Any annual base rent prepaid by Tenant beyond
said
date shall be promptly refunded to Tenant. Notwithstanding any of the foregoing
provisions of this Article, if Landlord or the holder of any superior mortgage
shall be unable to collect all of the insurance proceeds (including rent
insurance proceeds) applicable to damage or destruction of the demised premises
or the Building by fire or other cause, by reason of some action or inaction
on
the part of the Tenant or any of its employees, agents or contractors, then,
without prejudice to any other remedies which may be available against Tenant,
the abatement of Tenant’s rents provided for in this Article shall not be
effective to the extent of the uncollected insurance proceeds. If this Lease
shall not be terminated as provided above in this Article, Landlord shall,
at
its expense, proceed with the restoration of the demised premises; provided
Landlord’s obligations hereunder shall not exceed the scope of Landlord’s
initial construction obligations under this Lease and further provided, that
Landlord’s restoration obligations shall be subject to building and zoning laws
then in effect. No penalty shall accrue for reasonable delay which may arise
by
reason of adjustment of insurance, labor troubles and causes beyond Landlord’s
control. If Landlord shall so restore the demised premises, Tenant shall repair,
restore and redecorate the demised premises and reoccupy and reopen the demised
premises, within thirty (30) days following restoration, in a manner and to
the
condition existing prior to the event of damage, except to the extent that
Landlord is obligated above, and Tenant shall hold in trust the proceeds of
all
insurance carried by Tenant on its property for the purpose of such repair
and
restoration. 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. Tenant’s right to an abatement of rent hereunder shall
not be construed to limit or affect Landlord’s right to payment under any rental
loss coverage carried by Landlord.
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Eminent
Domain:
22. If
the whole 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. If only a part of the demised premises shall be condemned
or
taken, then, effective as of the date of vesting of title or taking possession,
the rent shall be abated in an amount thereof apportioned according to the
area
of the demised premises so condemned or taken and Tenant’s Percentage shall be
amended to reflect the new rentable square footage of the demised premises
and
the new square footage of the Building. If only a part of the Building shall
be
so condemned or taken, then (a) Landlord may, at its option, terminate this
Lease as of the date of such vesting of title, by notifying Tenant in writing
of
such termination, or (b) if such condemnation or taking shall be a permanent
condemnation or taking of a substantial part of the demised premises in Tenant’s
reasonable judgment, Tenant may, at Tenant’s option, by delivery of written
notice to Landlord within thirty (30) days following the date on which Tenant
shall have received notice of vesting of title or taking possession, terminate
this Lease as of the date of vesting of title or taking possession, or (c)
if
neither Landlord nor Tenant elects to terminate this Lease, as aforesaid, this
Lease shall be and remain unaffected by such condemnation or taking, except
that
the rent shall be abated in an amount thereof apportioned according to the
area
of the demised premises so condemned or taken and Tenant’s Percentage shall be
amended to reflect the new rentable square footage of the demised premises
and
the new square footage of the Building and Landlord, at its expense, subject
to
building codes then in effect and subject to the extent of proceeds actually
received by Landlord for such taking, shall proceed with reasonable diligence
to
repair, alter and restore the remaining parts of the Building and the demised
premises to substantially their former condition (which in no event shall exceed
Landlord’s pre-term construction obligations and which shall not include
Tenant’s Work, if any) to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and demised premises. If this
Lease is terminated by Landlord or Tenant under this Article, this Lease and the
term and estate hereby granted shall expire as of the date of such termination
with the same effect as if that were the Expiration Date, and the rent payable
hereunder shall be apportioned as of such date. It is expressly understood
and
agreed that, at Landlord’s option exercised in Landlord’s sole discretion, the
provisions of this Article shall not be applicable to any condemnation or taking
for governmental occupancy for a limited period. Landlord shall be entitled
to
receive the entire award in any condemnation proceeding, including any award
made for the value of the estate vested by this Lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest
of
Tenant now or hereafter arising in or to any such award or any part thereof,
and
Tenant shall be entitled to receive no part of such award, provided, however
that 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 hereof
to remove such property, trade fixtures and equipment at the end of the term,
and provided further such claim does not reduce Landlord’s award.
Relocation/Surrender/Demolition: 23.
A.
Landlord shall have the right to relocate Tenant, at Landlord’s expense, from
the demised premises to other office premises (the “Substitute Space”) of equal
or greater size and comparable improvements located in the Building on at least
sixty (60) days’ prior written notice thereof; and if such notice is given,
Tenant shall surrender the demised premises and relocate to the Substitute
Space
identified therein on the date specified in such notice; provided, however,
that
the Substitute Space shall be reasonably acceptable to Tenant. If, however,
Tenant shall determine that the proposed Substitute Space is not reasonably
acceptable to it, then Tenant shall have the right to terminate this Lease
by
written notice given to Landlord (such writing is hereinafter referred to as
a
“Dissatisfaction Notice”) within ten (10) days of the date Landlord gave Tenant
notice of such Substitute Space (such notice from Landlord is hereinafter
referred to as a “Shift Notice”) (time of the essence with regard to Tenant's
obligations hereunder). If Tenant shall fail to give a Dissatisfaction Notice
timely, then Tenant shall be deemed to have determined that the Substitute
Space
is reasonably acceptable to it. If Tenant shall timely give a Dissatisfaction
Notice to Landlord, then, as of that date which is ninety (90) days following
the date that Landlord shall have given Tenant a Shift Notice, this Lease shall
terminate and Tenant shall, on or prior to such date, vacate and surrender
the
demised premises to Landlord as if such date were the date originally set forth
in the Lease as the Expiration Date and all annual base rent prepaid by Tenant
beyond said date shall be promptly refunded to Tenant; provided, however that
Landlord may nullify such termination of this Lease under this Article
23A
by
providing written notice to Tenant within thirty (30) days following the date
that Landlord has received a Dissatisfaction Notice and upon the giving of
such
nullification notice the Shift Notice and the Dissatisfaction Notice given
under
this Article
23A
shall be
deemed null and void and this Lease shall continue in full force and effect
as
if such Shift Notice and Dissatisfaction Notice were never given. If Tenant
shall relocate to the Substitute Space, Landlord shall reimburse Tenant for
Tenant’s reasonable relocation costs. From and after the relocation date
specified by Landlord in its relocation notice, the Substitute Space shall
be
the demised premises under this Lease and this Lease shall otherwise be
unchanged.
B.
If in
connection with improvements or work to be performed in the Building, including,
without limitation, installing an elevator shaft, Landlord needs Tenant to
surrender a portion of the demised premises to Landlord and if the balance
of
the demised premises shall be tenantable following such surrender, then Landlord
shall have the right to give Tenant a minimum of 30 days prior written notice
to
surrender to Landlord said portion of the demised premises. If Landlord
exercises its option, Tenant shall surrender the requested portion of the
demised premises to Landlord and give Landlord access to the balance of the
demised premises for the purpose of erecting walls and related work. From and
after the date on which Landlord commences such work in accordance with said
notice, the rent shall be adjusted on a $/rsf basis and Tenant’s Percentage
shall be adjusted to reflect the new rentable square footage of the demised
premises.
C.
If the
demised premises abut or are contiguous with an elevator shaft and/or stairwell
and if Landlord elects to remove said elevator shaft or stairwell, then,
following the removal of said elevator shaft or stairwell, Landlord shall have
the right to elect, by giving written notice to Tenant, that the demised
premises include all or a portion of the area formerly comprising an elevator
shaft and/or stairwell. If Landlord exercises its option, Tenant shall give
Landlord access to the balance of the demised premises for the purpose of
related work and from and after the date Landlord substantially completes its
work in the demised premises with respect to the elevator shaft and/or
stairwell, the rent shall be increased on a $/rsf basis based upon the then
current $/rsf rate Tenant is paying hereunder, the other additional rent charges
based on the rentable square footage of the demised premises, (such as, by
way
of example only, the trash charge and air-conditioning charge) and Tenant’s
Percentage shall be increased each to reflect the new rentable square footage
of
the demised premises.
D.
At any
time after December 14, 2010 (if the term of this Lease is extended beyond
December 14, 2010 and Tenant acknowledges that it has no right to extend this
Lease beyond December 14, 2010) or if, on or before December 14, 2010, the
demised premises is no longer Suite 419 as described in this original Lease
(prior to any amendments, modifications or supplements) because Tenant moves,
relocates or leases additional premises or for any other reason, Landlord shall
be entitled, on at least one hundred eighty (180) days’ prior written notice
thereof, to terminate this Lease for the purpose of (i) demolishing the Building
or (ii) renovating the Building for a conversion to residential use, and, in
either case, this Lease shall come to an end on the date in such notice
specified with the same force and effect as if such date were the date
originally specified for the expiration of the term of this Lease.
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Assignments
& Subleases:
24.
Tenant expressly covenants that it shall not assign, mortgage or encumber this
Lease, nor sublet or underlet, or suffer or permit the demised premises or
any
part thereof to be used by others, without the prior written consent of Landlord
in each instance. Transfer of the majority of the stock of a corporate Tenant
or
the majority partnership interest of a partnership Tenant or the majority
interest of any other Tenant entity shall be deemed an assignment. If Tenant
desires to assign this Lease or sublet all or a portion of the demised premises,
Tenant shall first notify Landlord in writing of its intention, and such notice
shall include the amount of consideration paid for the assignment and/or
sublease, the rents to be paid with respect to a sublease, the name of the
proposed assignee or subtenant, together with its full address and a description
of its proposed use (but nothing contained herein shall permit, nor obligate
Landlord to permit, a use other than the use permitted by Article 1 of this
Lease, it being understood that any change in use shall be subject to Landlord’s
consent, which Tenant agrees may, notwithstanding anything contained herein
to
the contrary, be unreasonably withheld). Tenant shall include with such
notification such financial information as may be available concerning the
proposed assignee or subtenant, including, without limitation, current updated
financial statements (which financial information shall be supplemented on
demand if required by Landlord). If this Lease be assigned, or if the demised
premises or any part thereof be sublet or occupied by anybody other than Tenant,
Landlord may, after default by Tenant, collect rent from the assignee, subtenant
or occupant, and apply the net amount collected to the rent herein reserved,
but
no such assignment, subletting, occupancy or collection shall be deemed an
acceptance of the assignee, subtenant or occupant as tenant, or a waiver or
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. The consent by Landlord to an assignment or
subletting shall not be construed to relieve Tenant from obtaining the express
consent in writing of Landlord to any further assignment or subletting. Tenant
shall pay Landlord, promptly upon demand therefor, for all reasonable costs
and
expenses (including, but not limited to, reasonable attorneys’ fees and
disbursements) incurred by Landlord in connection with any assignment, transfer
of interest or subletting (whether or not Landlord consents thereto) as
additional rent hereunder. If this Lease is assigned or all or any portion
of
the demised premises is sublet, the obligations of Tenant and any guarantor
of
this Lease or any guarantor of the obligations of Tenant under this Lease as
a
primary obligor shall be unaffected and shall remain in full force and effect.
No assignment, sublease or transfer of interest shall be effective unless and
until the assignee, transferee or subtenant shall execute, acknowledge and
deliver to Landlord a recordable agreement, in form and substance satisfactory
to Landlord and counsel for Landlord, whereby the assignee, transferee or
subtenant shall assume for the benefit of Landlord the obligations and
performance of this Lease and agree to be personally bound by all of the
covenants, agreements, terms, provisions and conditions hereof on the part
of
Tenant to be performed or observed, and whereby Tenant (and all guarantors
of
this Lease or of the Tenant’s obligations hereunder) covenants and agrees to
remain liable as a primary obligor for the due performance of all of the
covenants, agreements, terms, provisions and conditions of this Lease on the
part of Tenant to be performed or observed, including, without limitation
Article 1 hereof. Notwithstanding anything contained in this Lease to the
contrary, in the event that it shall be found by a court of competent
jurisdiction that Landlord was unreasonable in withholding its consent to the
assignment of this Lease or the subletting of all or any portion of the demised
premises, Tenant’s sole remedy shall be limited to specific performance and
Tenant shall not be entitled to damages or any other affirmative relief or
remedy as a result thereof. In the event of a leveraged buy-out or other
take-over of Tenant, Landlord’s consent to an assignment of this Lease or
subletting of the demised premises to the successor entity shall not be deemed
to have been unreasonably withheld if said successor entity shall not have
a net
worth (in the event of a corporate entity, on a market value basis) as certified
to by a certified public accountant at least equal to the net worth of Tenant
upon the date of execution of this Lease. Every sublease of the demised
premises, in whole or in part, shall be subject and subordinate to this Lease.
Tenant
shall promptly pay to Landlord, as additional rent hereunder, all consideration
paid for all assignments of this Lease and all rent or additional rent or sum
which Tenant shall receive from or on behalf of any assignee(s) or subtenant(s)
or any occupant by, through or under Tenant, which is in excess of the rent
and
additional rent payable by Tenant in accordance with the provisions of this
Lease (or in the event of a subletting of less than the whole of the demised
premises, the rent and additional rent allocable to that portion of the demised
premises affected by such sublease).
In
no
event shall an assignee or sublessee be any of the following: a prospective
tenant (or its designee) who is discussing or has discussed in the last six
(6)
months with Landlord (or Landlord’s agent) its need for space in the Building; a
current tenant, subtenant or occupant of space in the Building or any other
building owned by Landlord or an entity under common control with Landlord
or a
subsidiary, affiliate, parent, or successor thereof; any party not financially
responsible or unable to adequately evidence financial responsibility to
Landlord’s reasonable satisfaction; any party that will be engaged in a business
or use that will require services from Landlord, or place demands on facilities
in the Building of a different nature or to a greater extent than Landlord
was
required to afford before under this Lease, that is likely to adversely affect
(or increase burdens on) any operation of Landlord or any tenant or occupant
of
the Building, breach this Lease or violate a restrictive covenant of Landlord,
contravene any provision of a mortgage, net lease or any other agreement of
Landlord’s; any party with whom Landlord has been involved in litigation; any
party that is a domestic or foreign governmental entity; and/or any party who
may claim diplomatic immunity.
Anything
contained in this Lease to the contrary notwithstanding, within thirty (30)
days
after Landlord’s receipt of all information required by Landlord under this
Article with respect to a proposed assignment or subletting, Landlord may give
notice electing to terminate this Lease effective as of the last day of the
month occurring sixty (60) days after such notice of termination is given;
provided, however, that for the purposes of this paragraph only, Landlord may
not terminate this Lease under this paragraph with respect to a proposed license
of an individual office or desk within the demised premises to a person who
is,
or an entity which is, in the same business as Tenant, so long as the sum of
the
rentable square footage of the space licensed plus the rentable square footage
of all other space licensed in the demised premises does not exceed ten (10%)
percent of the total rentable square footage of the demised premises at the
time
of the proposed license and so long as Tenant retains direct control and
supervision of such licensee. If Landlord shall give its termination notice
as
provided in this paragraph, the Term shall end on the effective date of
termination as if such date had been the original Expiration Date hereof;
provided, however, that Tenant may nullify such termination of this Lease under
this Article
24
by
providing written notice to Landlord within ten (10) business days following
the
date of Landlord’s termination notice and upon the giving of such nullification
notice the proposed assignment or sublease and the termination notice shall
each
be deemed null and void and this Lease shall continue in full force and effect
as if such assignment or sublease request and termination notice were never
given.
Subordination:
25.
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
and to all renewals, modifications, consolidations, replacements and extensions
of any such underlying leases and mortgages. This clause shall be self-operative
and no further instrument of subordination shall be required by any ground
or
underlying lessor or by any mortgagee. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate or agreement
that Landlord may request. Tenant agrees that if any holder of a superior lien
succeeds to Landlord’s interest in the demised premises, Tenant will pay to such
holder all rents subsequently payable under this Lease. Further, Tenant agrees
that in the event of the enforcement by the holder of a superior lien of the
remedies provided for by law or by such superior lien, Tenant will, upon request
of any person or party succeeding to the interest of Landlord as a result of
such enforcement, automatically (at the option of such holder) become the tenant
of and attorn to such successor in interest without change in the terms or
provisions of this Lease. Such successor in interest will not be bound by:
any
payment of rent or additional rent paid more than one month in advance; any
amendment or modification of this Lease made without the written consent of
such
successor in interest; any claim against Landlord arising prior to the date
on
which such successor in interest succeeded to Landlord’s interest, including,
without limitation, any claim for equitable or legal relief against such
successor in interest for Landlord’s failure or inability to complete
construction required to be done by Landlord under this Lease; and any security
deposit required hereunder, unless said sums have actually been received by
such
successor in interest as security for Tenant’s performance of this
Lease.
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Estoppel
Certificate:
26.
Tenant, at any time and from time to time, upon at least ten (10) days prior
notice by Landlord, shall execute, acknowledge and deliver to Landlord, and/or
to any other person, firm or corporation specified by Landlord, a statement
certifying (i) that this Lease is unmodified and in full force and effect (or,
if there have been modifications, that this Lease is in full force and effect
as
modified and stating the modifications), (ii) the dates to which the rent and
additional rent have been paid, (iii) whether or not there exists a default
by
Landlord or Tenant under this Lease, and, if so, specifying each such default,
and (iv) any other matters reasonably requested.
Bankruptcy:
27.
Anything elsewhere in this Lease to the contrary notwithstanding, this Lease
may
be cancelled by Landlord by sending a written notice to Tenant within a
reasonable time after the happening of any one or more of the following events:
(1) the commencement of a case in bankruptcy or under the laws of any state
naming Tenant or a guarantor of Tenant’s obligations under this Lease or any
other party who is primarily liable for Tenant’s obligations under this Lease,
as the debtor; or (2) the making by Tenant or a guarantor of Tenant’s
obligations under this Lease or any other party who is primarily liable for
Tenant’s obligations under this Lease of an assignment or any other arrangement
for the benefit of creditors under any state statute. Neither Tenant nor any
person claiming through or under Tenant, or by reason of any statute or order
of
court, shall thereafter be entitled to possession of the premises demised,
but
shall forthwith quit and surrender the demised premises. If this Lease shall
be
assigned in accordance with its terms, the provisions of this Article shall
be
applicable to the party then owning Tenant’s interest in this Lease. It is
stipulated and agreed that if this Lease is terminated pursuant to this Article,
Landlord shall, 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 the demised premises or any part thereof be relet by Landlord 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 of the part or the whole of the demised premises so re-let during
the term of the re-letting. Nothing herein contained shall limit or prejudice
the right of the Landlord to prove and/or obtain as liquidated damages by reason
of such termination, an amount equal to the maximum allowed by any statute
or
rule of law in effect at the time when 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. Without limiting any of the provisions hereof, if pursuant
to
the U.S. Bankruptcy Code, as the same may be amended, Tenant is permitted to
assign this Lease in disregard of the restrictions contained in Article
24
or any
other provisions of this Lease, Tenant agrees that adequate assurance of future
performance by the assignee permitted under such code shall mean, in addition
to
all of the other requirements of the code, the payment to Landlord of all rent,
additional rent and other amounts then due and payable under this Lease, the
curing of all defaults by Tenant under this Lease and the deposit of cash
security with Landlord in an amount equal to the sum of one (1) year’s annual
base rent payable hereunder at the then current rate plus an amount equal to
all
additional rent payable under the provisions of this Lease for the calendar
year
preceding the year in which such assignment is intended to become effective,
which deposit shall be held by Landlord, without interest, for the balance
of
the term of this Lease as security for the full and faithful performance of
all
of the obligations under this Lease on the part of Tenant yet to be performed.
If Tenant receives or is to receive any valuable consideration for such an
assignment of this Lease, such consideration, after deducting therefrom (A)
the
brokerage commissions, if any, and other expenses reasonably incurred by Tenant
for such assignment and (B) any portion of such consideration reasonably
designated by the assignee as paid for the purchase of Tenant’s property in the
demised premises, shall be and become the sole and exclusive property of
Landlord and shall be paid over to Landlord directly by such assignee. In
addition, adequate assurance shall mean that any such assignee of this Lease
shall have a net worth, exclusive of good will, equal to at least fifteen (15)
times the aggregate of all of the annual base rent payable hereunder during
the
term of this Lease, plus all additional rent for the preceding calendar year
as
aforesaid.
Default,
Remedies of Landlord, Fees and Waiver of Redemption:
28. If
(a) Tenant shall default in the observance of any of the provisions, covenants
and conditions of this Lease (other than a default for the payment of rent
or
additional rent); or if Tenant shall fail to occupy the demised premises and
open for business at the commencement of the term of this Lease, as above
provided; or if the demised premises shall be abandoned, deserted or vacated;
or
if Tenant shall sublet the demised premises or assign this Lease, except as
herein provided; or if Tenant shall be in default under any other obligations
of
Tenant to Landlord of any nature whatsoever, including in connection with any
other lease between Tenant and any of the Landlords or between Tenant and any
entity in which any partner of Landlord holds an interest; or if this Lease
be
rejected under §365 of Title 11 of the U.S. Bankruptcy Code); or if any
execution or attachment shall be issued against Tenant or any of Tenant’s
property whereupon the demised premises shall be taken or occupied by someone
other than Tenant; or if Tenant shall have failed, after five (5) days written
notice, to redeposit with Landlord any portion of the security deposited
hereunder which Landlord has applied to the payment of any rent and additional
rent due and payable hereunder; THEN,
in any
of the foregoing events, if such default shall continue for more than ten (10)
days after written notice of such default or if said default or omission
complained of shall be of a nature that the same cannot be completely cured
or
remedied within said ten (10) day period, and if Tenant shall not have
diligently commenced to cure such default within such ten (10) day period,
and
shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default; or (b) if Tenant shall default in the payment
of
annual base rent or any item(s) of additional rent or other monies due
hereunder, or any part of same, and any such default shall continue for more
than three (3) days after written notice of such default; or (c) if twice in
any
twelve (12) month period Tenant shall have defaulted under its lease
obligations, monetary or otherwise, and Landlord shall have commenced a summary
proceeding to dispossess Tenant in each such instance (notwithstanding that
such
defaults may have been cured after the commencement of such summary proceeding,
and then Tenant defaults a third time within such twelve (12) month period;
THEN,
in the
event of (a), (b) or (c) above, Landlord may give Tenant a written five (5)
day
notice of termination of this Lease and, upon the expiration of said five (5)
days, this Lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day herein
definitely fixed for the end and expiration of this Lease and the term hereof,
and Tenant shall immediately quit and surrender the demised premises to
Landlord, but Tenant shall remain liable as hereinafter provided. If said five
(5) day notice of termination shall have been given, and the term shall have
expired as aforesaid, then Landlord may, without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant and all occupants
of the demised premises by summary proceedings or otherwise and remove their
effects and property and hold the demised premises as if this Lease had not
been
made; Tenant hereby waiving the service of notice of intention to re-enter
or to
institute legal proceedings to that end.
In
case
of any default, event, re-entry, expiration, termination and/or dispossession
by
summary proceedings, or otherwise, Tenant shall, nevertheless, remain and
continue liable to Landlord in a sum equal to all annual base rent and
additional rent herein reserved for the balance of the term of this Lease as
the
same may become due and payable pursuant to the provisions of this Lease as
if
it were not terminated. Landlord may repair or alter the demised premises in
such manner as to Landlord may seem necessary or advisable, and/or let or re-let
the demised premises and any and all parts thereof for the whole or any part
of
the remainder of the original term hereof or for a longer period, in Landlord’s
name, or as the agent of Tenant, and, out of any rent so collected or received,
Landlord shall, first, pay to itself, the expense and cost of retaking,
repossessing, repairing and/or altering the demised premises, and the expense
of
removing all persons and property therefrom, second, pay to itself, any cost
or
expense sustained in securing any new tenant or tenants, and third, pay to
itself, any balance remaining on account of the liability of Tenant to Landlord
for the sum equal to the annual base rent and additional rent reserved herein
and unpaid by Tenant for the remainder of the term herein demised. The failure
of Landlord to re-let the demised premises or any part or parts thereof shall
not release or affect Tenant’s liability for damages. Any entry or re-entry by
Landlord, whether had or taken under summary proceedings or otherwise, shall
not
absolve or discharge Tenant from liability hereunder. Should any rent so
collected by Landlord after the payment aforesaid be insufficient fully to
pay
to Landlord a sum equal to all annual base rent and additional rent herein
reserved, the balance or deficiency shall be paid by Tenant on the rent days
herein specified; that is, upon each of such rent days Tenant shall pay to
Landlord the amount of the deficiency then existing and Tenant shall be and
remain liable for any such deficiency, and the right of Landlord to recover
from
Tenant the amount thereof, or a sum equal to the amount of all annual base
rent
and additional rent herein reserved if there shall be no re-letting, shall
survive the issuance of any dispossessory warrant or other termination hereof.
Tenant hereby expressly waives service of any notice of intention to re-enter
subsequent to the giving of the aforesaid notices. Tenant hereby expressly
waives any and all right to recover or regain possession of the demised premises
or to reinstate or to redeem this tenancy or this Lease as is permitted or
provided by or under any statute, law, or decision now or hereafter in force
and
effect. Tenant also waives the provisions of any law now or hereafter in effect
relating to notice and delay in levy of execution in case of an eviction or
dispossess of a tenant for non-payment of rent. Tenant shall reimburse Landlord,
within five (5) days following written demand, for any counsel fees or
collection charges incurred or expended by Landlord by reason of Tenant’s
default in the performance of any provision, covenant, or condition of this
Lease and any such amounts, at the option of Landlord, may be recovered in
the
same action or proceeding forming the basis of the default or in another action
or proceeding.
Please
Initial: Landlord _____ Tenant _____
Page
10
Notwithstanding
any other remedy provided for hereunder and without the requirement of notice,
except as provided in this article, if Tenant shall not comply with any of
its
obligations hereunder, Landlord shall have the right, at Landlord’s sole option,
at any time in the event of an emergency and otherwise after three (3) days
notice to Tenant, to cure such breach at Tenant’s expense. Tenant shall
reimburse Landlord, within three (3) days following demand, as additional rent,
for all costs and expenses incurred by Landlord in curing such breach, together
with interest computed thereon at the maximum rate permitted by law.
Notwithstanding anything contained in this Lease, if Tenant fails to pay any
monetary items due hereunder on the date the same are due and payable, a late
charge of four ($.04) cents for each ONE ($1.00) DOLLAR so overdue shall become
immediately due and payable to the Landlord as damages in compensation for
the
additional administrative, bookkeeping and collection expenses incurred by
Landlord by reason of such failure to make prompt payment and the same shall
be
considered as additional rent hereunder payable together with the next
installment of monthly rent. In addition, all such unpaid monetary items shall
bear interest at the maximum rate permitted by law from the date such monies
were due and payable until the date on which Landlord shall receive payment.
Notwithstanding anything contained in this Lease, if Tenant fails to pay any
monetary items due hereunder on the date the same are due and payable and a
default notice is sent by Landlord, Tenant shall pay Landlord $500.00 as
additional rent to compensate Landlord for charges incurred by Landlord relating
to issuing a default notice and the same shall be payable together with the
next
installment of monthly base rent.
The
rights and remedies whether herein or elsewhere provided in this Lease shall
be
cumulative and the exercise of any one right or remedy shall not preclude the
exercise of or act as a waiver of any other right or remedy of Landlord
hereunder, or which may be existing at law, or in equity, by statute or
otherwise. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws.
No
Waiver:
29. The
failure of Landlord to seek redress for violation of, or to insist upon the
strict performance of, any covenant or condition of this Lease, or of any of
the
rules and regulations, set forth or hereafter adopted by Landlord, shall not
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt
by
Landlord of rent with knowledge of the breach of any covenant of this Lease
shall not be deemed a waiver of such breach, and no provision of this Lease
shall be deemed to have been waived by Landlord unless such waiver be in writing
signed by Landlord. No payment by Tenant, or receipt by Landlord, of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other
than
on account of the earliest stipulated rent, 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 Landlord may accept such check or
payment without prejudice to Landlord’s right to recover the balance of such
rent or pursue any other remedy in this Lease provided. All checks tendered
to
Landlord as and for the rent of the demised premises shall be deemed payments
for the account of Tenant. Landlord may apply such payment to any sums then
due
and payable by Tenant to Landlord as Landlord shall determine in its sole
discretion. Acceptance by Landlord of rent from anyone other than Tenant shall
not be deemed to operate as an attornment to Landlord by the payor of such
rent,
or as a consent by Landlord to an assignment or subletting by Tenant of the
demised premises to such payor, or as a modification of the provisions of this
Lease. No act or thing done by Landlord or Landlord’s agents during the term
hereby demised shall be deemed an acceptance of a surrender of said premises,
and no agreement to accept such surrender shall be valid unless in writing
signed by Landlord. No employee of Landlord or Landlord’s agent shall have any
power to accept the keys of said premises prior to the termination of this
Lease, and the delivery of keys to any such agent or employee shall not operate
as a termination of this Lease or a surrender of the demised
premises.
Landlord’s
Defaults:
30. If
Landlord defaults in any of its obligations under this Lease, Tenant shall
give
Landlord written notice of such default and Landlord shall have thirty (30)
days
following receipt of such notice to cure such default or, if such default cannot
reasonably be cured within a thirty (30) day period, Landlord shall commence
the
cure of such default within thirty (30) days following receipt of such notice
and thereafter shall proceed diligently to cure such alleged default. Tenant
shall send a duplicate notice to any holder of a mortgage or other superior
lien
on the Building or this Lease of which Tenant has been notified in writing,
and
any such holder shall have the right to cure such alleged default within the
same time period. Notwithstanding anything to the contrary contained herein,
in
no event shall Landlord be liable to Tenant for any consequential, indirect,
special, exemplary or punitive damages.
Consents
and Approvals:
31. If
Tenant shall request Landlord’s consent or approval and Landlord shall fail or
refuse to give such consent or approval, Tenant shall not be entitled to any
damages for any withholding by Landlord of its consent or approval, it being
agreed that Tenant’s sole remedy shall be an action for specific performance or
an injunction, and that such remedy shall be available only in those cases
where
Landlord has expressly agreed in writing not to unreasonably withhold its
consent or approval or where as a matter of law Landlord may not unreasonably
withhold its consent or approval.
Inability
to Perform:
32.
Except as otherwise provided herein, this Lease and the obligation of Tenant
to
pay rent hereunder and perform all of the other covenants and agreements
hereunder on the part of Tenant to be performed shall in no wise be affected,
impaired or excused because Landlord is unable to fulfill any of its obligations
under this Lease or to supply or is delayed in supplying any service expressly
or impliedly to be supplied or is unable to make, or is delayed in making any
repair, additions, alterations or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures, if, in any such case, Landlord
is prevented or delayed from so doing by reason of strike or labor troubles
or
any cause whatsoever beyond Landlord’s reasonable control, including, but not
limited to, government pre-emption in connection with a national emergency
or by
reason of any Legal Requirements or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency. If there
shall
be a delay in the construction, repair or restoration of the demised premises
or
the Building or any portion thereof caused by strike, riots, acts of God,
shortages of labor or materials, national emergency, governmental restrictions,
laws or regulations, the act of, or failure to act by, Tenant, or for any other
cause or causes beyond Landlord’s control, at Landlord’s option such delay shall
not be a violation of this Lease, and the time periods set forth in this Lease
for any such work shall at Landlord’s option be extended for a period of time
equal to the period of delay.
Waiver
of Trial by Jury:
33. It
is mutually agreed by and between Landlord 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
the
parties as landlord and tenant, Tenant’s use of or occupancy of the demised
premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that if Landlord commences any proceeding or action
for
possession, including a summary proceeding for possession of the demised
premises, Tenant will not interpose any counterclaim, of whatever nature or
description, in any such proceeding, except for statutory mandatory
counterclaims.
Please
Initial: Landlord _____ Tenant _____
Page
11
End
of Term:
34.
Upon the expiration or other termination of the term of this Lease, Tenant
shall
quit and surrender to Landlord the demised premises vacant, “broom-clean”, in
good order and condition, ordinary wear and damages which Tenant is not required
to repair as provided elsewhere in this Lease excepted, and Tenant shall deliver
to Landlord all keys required for access to the demised premises and the
Building (including, without limitation, all keys provided to Tenant for access
to the entrance, elevator, bathrooms and other Building common areas), disable
and remove all security systems covering the demised premises and remove all
of
its property from the demised premises as required and as permitted by this
Lease. Tenant shall assign to Landlord all warranties that are in effect at
the
end of the term of this Lease for all alterations, property and equipment which
remain in the demised premises, with Landlord’s consent, after Tenant has
surrendered possession thereof to Landlord. Tenant’s obligation to observe or
perform this covenant shall survive the expiration or other termination of
this
Lease. Tenant acknowledges that it must surrender possession of the demised
premises to Landlord at the expiration or sooner termination of the term of
this
Lease; time being of the essence with respect to Tenant’s obligation to do so.
If, however, Tenant remains in possession of the demised premises at the
expiration or earlier termination of the term hereof, Tenant, at Landlord’s
option, shall be deemed to be occupying the demised premises as a tenant from
month to month, at a monthly rental equal to twice the sum of (a) the monthly
installment of the annual base rent payable during the last month of the term
hereof plus (b) all additional rent due hereunder. Acceptance by Landlord of
rent after the expiration or earlier termination of the Term hereof shall not
constitute a consent to a month-to-month tenancy or result in a renewal. In
the
event of such holdover, Tenant’s occupancy of the demised premises, except as
aforesaid, shall be subject to all other conditions, provisions and obligations
of this Lease, but only insofar as the same are applicable to a month to month
tenancy. Such month to month tenancy shall be terminable by Landlord upon one
(1) month’s notice to Tenant, and if Landlord shall give such notice, Tenant
shall quit and surrender the demised premises to Landlord as provided in this
article. In the event that (a) Tenant shall remain in possession of the demised
premises at the expiration or earlier termination of the Term hereof and
Landlord shall not have elected to deem Tenant to be occupying the demised
premises as a tenant from month-to-month or (b) Landlord shall terminate any
month-to-month tenancy of the demised premises and Tenant shall fail to quit
and
surrender the demised premises to Landlord upon the termination date as provided
in this article, then, in either such event, Tenant shall be liable to Landlord
for all losses, damages, claims, costs and/or expenses incurred by Landlord
by
reason of Tenant’s failure to deliver timely possession of the demised premises
to Landlord, including, without limitation, any consequential and incidental
damages so incurred by Landlord, including, without limitation, all legal fees
and court costs incurred by Landlord and all losses, damages, claims, costs
and/or expenses incurred in connection with or arising from the inability of
Landlord to lease and deliver possession of the demised premises, or any portion
thereof, to any third party and/or the termination or cancellation of any lease
of the demised premises, or any portion thereof to any third party.
Quiet
Enjoyment:
35. So
long as Tenant timely pays all annual base rent and additional rent due
hereunder and performs all of Tenant’s other obligations hereunder within the
time periods permitted under this Lease, Tenant shall peaceably and quietly
hold
and enjoy the demised premises during the term without hindrance or ejection
by
Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease.
Notices:
36.
Except as otherwise in this Lease provided, all notices to be given pursuant
to
this Lease shall be in writing and sent by prepaid certified or registered
U.S.
mail, return receipt requested, or by a recognized overnight courier service
which requires acknowledgment of receipt of delivery from addressee, to the
address of the parties below specified or at such other address as may be given
by written notice in the manner prescribed in this paragraph or, if to Tenant,
by personal delivery to the demised premises. Notice shall be deemed to be
given
upon delivery to the U.S. Postal Service or recognized overnight courier service
or if personal delivery, to the demised premises. Landlord’s address for notice
shall be the address first set forth above for Landlord. Tenant’s address for
notices given prior to the Commencement Date shall be the address first set
forth above for Tenant. Tenant’s address for notices given on or subsequent to
the Commencement Date shall be the address of the demised premises. Tenant
covenants and agrees to give any mortgagee and/or ground lessor of the Building
and/or Real Property notice of any default of Landlord under this Lease and
the
right to cure any default of Landlord within such reasonable period of time
as
may be required by such mortgagee and/or ground lessor. Notwithstanding the
foregoing, rent bills, invoices and statements may be sent by ordinary mail
or
personal delivery. Landlord’s leasing and/or managing agent and/or counsel may
each give statements, invoices, notices and/or other communication on behalf
of
Landlord and any such statements, invoices, notices and/or communications shall
be deemed to have been given by Landlord.
Captions
& Counterparts:
37. The
Captions are inserted only as a matter of convenience and for reference, and
in
no way define, limit or describe the scope of this Lease nor the intent of
any
provision thereof. This Lease may be executed in any number of counterparts,
each of which shall be an original, but which together shall constitute one
and
the same instrument.
Definitions,
Successors & Assigns:
38. The
words “re-enter” and “re-entry” as used in this Lease are not restricted to
their technical legal meaning. The term “rent” includes the annual base rent,
the annual rental rate whether so expressed or expressed in monthly
installments, and additional rent payable hereunder. All provisions herein
contained shall bind and inure to the benefit of the respective parties hereto,
their heirs, personal representatives, successors and assigns, as the case
may
be. In the event Landlord or any successor-lessor (owner) of the demised
premises shall convey or otherwise dispose of the demised premises and/or the
Building and/or the Real Property, all liabilities and obligations of Landlord
or such successor-lessor (owner), as Landlord under this Lease shall terminate
upon such conveyance or disposal and written notice thereof to Tenant. If
Landlord, or any successor in interest to Landlord, shall be an individual,
joint venture, executor, estate, personal representative, conservator,
tenancy-in-common, trustee, trust, limited liability company, limited liability
partnership, partnership, general or limited, firm or corporation, there shall
be no personal liability on the part of such individual or on the part of any
members of such joint venture, tenancy-in-common, trustee, trust, company,
partnership, firm or corporation, or its shareholders, members, managers,
officers or directors, or on the part of such joint venture, estate,
tenancy-in-common, trustee, trust, company, partnership, firm or corporation
as
to any of the provisions, covenants or conditions of this Lease. Tenant hereby
acknowledges that it shall look solely to the real property interest of Landlord
in the Building for the satisfaction or assertion of any claims, rights and
remedies of Tenant against Landlord, in the event of breach by Landlord of
any
of the provisions, covenants or conditions of this Lease.
Entire
Agreement:
39.
This Lease contains the entire and only agreement between the parties concerning
the demised premises. No prior oral or written statements or representation,
if
any, of any party hereto or any representative of a party hereto, not contained
in this instrument, shall have any force or effect. This Lease shall not be
modified in any way, except by a writing executed by Landlord and Tenant. No
oral agreement or representations shall be deemed to constitute a lease other
than this agreement. This agreement shall not be binding unless and until it
shall have been executed and delivered by Landlord and Tenant. The submission
of
this Lease to Tenant prior to its execution by Landlord shall not be an offer
to
lease.
Memorandum
of Lease:
40.
Tenant shall not record this Lease or any memorandum of this Lease without
Landlord’s prior written consent. The parties hereto agree that if a memorandum
shall be recorded with respect to this Lease, then (i) such memorandum shall
contain those provisions of this Lease as shall be mutually desired in the
reasonable discretion of counsel for the parties hereto, provided that in no
event shall such memorandum contain any provisions relevant to the base rent
and/or additional rent payable under this Lease, and (ii) Tenant shall, upon
Landlord’s request, execute and deliver to Landlord any and all documentation
necessary to release such memorandum from record upon the expiration or sooner
termination of the term of this Lease (and Tenant’s obligation to execute and
deliver such a release shall survive the expiration or sooner termination of
this Lease).
Federal
Tax Identification Number:
41.
Tenant hereby agrees that it shall provide to Landlord Tenant’s social security
number or, if Tenant is or becomes an entity, Tenant’s federal employer
identification number, within three (3) days following Landlord’s request
therefor. Tenant hereby represents and warrants to Landlord that Tenant’s
federal employer tax identification number is 00-0000000.
Please
Initial: Landlord _____ Tenant _____
Page
12
Directory:
42.
Landlord shall upon Tenant’s request, post on the Building’s directory (the
“Directory”) Tenant’s name and a maximum of six (6) individuals’ names who are
officers or employees of Tenant. If Landlord shall list any individual or entity
name other than that of Tenant, such listing shall neither grant such party
any
right or interest in this Lease and/or the demised premises, nor constitute
Landlord’s consent to an assignment or sublease to, or occupancy by, such party.
Such listing may be terminated by Landlord at any time in Landlord’s reasonable
judgment, without prior notice, and Landlord may charge Tenant a reasonable
charge for any changes in listings requested by Tenant.
See
rider and exhibits attached hereto and hereby made a part
hereof.
In
Witness Whereof,
Landlord
and Tenant have respectively signed and sealed this Lease as of the day and
year
first above written.
|
WASHINGTON
GROUP L.L.C.
|
||
| By: | DW Associates, L.P., as managing member | |
| |
|
|
| By: | ||
|
|
||
| 30 MAIN LLC | ||
| By: | DW Associates, L.P., as managing member | |
| |
|
|
| By: | ||
|
(collectively Landlord) |
||
| Witness for Tenant: |
FUTURE
NOW, INC., a
Delaware corporation, doing business in the State of New York as
Future
Now Group
|
|
| |
|
|
| By: | ||
|
|
(Tenant) |
|
ACKNOWLEDGEMENT
STATE
OF
NEW YORK
SS.:
COUNTY
OF
On the
________ day of October in the year 2007, before me, the undersigned, a Notary
Public in and for said State, personally appeared ________________________
,
personally known to me or proved to me on the basis of satisfactory evidence
to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
|
NOTARY PUBLIC |
Please
Initial: Landlord _____ Tenant _____
Page
13
LEASE
FORM INDEX
|
Clause
|
Page
|
|
|
Additional
Covenants
|
6
|
|
|
Alterations
|
3
|
|
|
As
Is
|
2
|
|
|
Assignments
& Subleases
|
9
|
|
|
Bankruptcy
|
10
|
|
|
Base
Rent
|
1
|
|
|
Building
Alterations
|
6
|
|
|
Building
Services
|
2
|
|
|
Captions
& Counterparts
|
12
|
|
|
Casualty
|
7
|
|
|
Consents
and Approvals
|
11
|
|
|
Definitions,
Successors & Assigns
|
12
|
|
|
Demolition
|
8
|
|
|
Directory
|
13
|
|
|
Electricity
|
2
|
|
|
Eminent
Domain
|
8
|
|
|
End
of Term
|
12
|
|
|
Entire
Agreement
|
12
|
|
|
Estoppel
Certificate
|
10
|
|
|
Excavation
Shoring
|
6
|
|
|
Failure
to Give Possession
|
3
|
|
|
Federal
Tax Identification Number
|
12
|
|
|
Garbage
|
6
|
|
|
Inability
to Perform
|
11
|
|
|
Landlord’s
Access to Demised Premises
|
4
|
|
|
Landlord’s
Defaults
|
11
|
|
|
Laws,
Compliance With
|
5
|
|
|
Memorandum
of Lease
|
12
|
|
|
No
Waiver
|
11
|
|
|
Notices
|
12
|
|
|
Partial
Surrender
|
8
|
|
|
Quiet
Enjoyment
|
12
|
|
|
Real
Estate Taxes
|
2
|
|
|
Relocation
|
8
|
|
|
Repairs
|
4
|
|
|
Rules
and Regulations
|
6
|
|
|
Security
Deposit
|
2
|
|
|
Signs
|
5
|
|
|
Subordination
|
9
|
|
|
Tenant
Defaults
|
10
|
|
|
Tenant’s
Insurance
|
7
|
|
|
Use
|
1
|
|
|
Utilities
& Other Services
|
2
|
|
|
Waiver
of Trial by Jury
|
11
|
Please
Initial: Landlord _____ Tenant _____
Page
14
|
RIDER
ATTACHED TO AND FORMING A PART OF LEASE DATED AS OF SEPTEMBER 1,
2007 BY
AND BETWEEN WASHINGTON GROUP L.L.C. AND 30 MAIN LLC (COLLECTIVELY
“LANDLORD”) AND FUTURE NOW, INC. (“TENANT”) FOR PREMISES KNOWN AS SUITE
419 IN THE BUILDING KNOWN AS 00 XXXXXXXXXX XXXXXX, XXXXXXXX,
XX
|
In
the
event of any inconsistency between the provisions of this rider and the
provisions of the Lease to which this rider is attached, the provisions of
this
rider shall control.
43.
Water
Charges:
If
Tenant requires, uses or consumes water for any purpose in the demised premises
other than ordinary lavatory purposes (of which fact Landlord shall be the
sole
judge), Landlord may install a water meter and thereby measure Tenant’s water
consumption for all purposes. Tenant shall pay Landlord for the cost of the
meter and the cost of the installation. Throughout the duration of Tenant’s
occupancy, Tenant shall keep said meter and installation equipment in good
working order and repair at Tenant’s own cost and expense. In the event Tenant
fails to maintain the meter and installation equipment in good working order
and
repair (of which fact Landlord shall be the sole judge) Landlord may cause
such
meter and equipment to be replaced or repaired, and collect the cost thereof
from Tenant as additional rent. Tenant agrees to pay for water consumed as
shown
on said meter as and when bills are rendered, and in the event Tenant defaults
in the making of such payment, Landlord 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 or levy which
now
or hereafter is assessed, imposed or a lien upon the demised premises, or the
realty of which they are a part, pursuant to any law, order or regulation made
or issued in connection with the use, consumption, maintenance or supply of
water, the water system or sewage or sewage connection or system. If the demised
premises is supplied with water through a meter which measures the water
consumption of other tenants as well as the demised premises, Tenant shall
pay
to Landlord, as additional rent, on the first day of each month, that portion
of
the meter charges that relate to Tenant’s use. Independently of, and in addition
to, any of the remedies reserved to Landlord hereinabove or elsewhere in this
Lease, Landlord may xxx for and collect any monies to be paid by Tenant, or
paid
by Landlord, for any of the reasons or purposes hereinabove set
forth.
44. Electric
Current:
A.
Supplementing
Article
5
hereof,
electricity shall be furnished to Tenant on a “submetering” basis. Tenant shall
pay Landlord (or at Landlord’s option, Landlord’s agent) as additional rent
within ten (10) days following demand made therefor for all electricity
furnished to and/or consumed in the demised premises on a submetering basis
from
and after the date possession of the demised premises is delivered to Tenant
at
charges, terms and rates, including, without limitation, fuel adjustments and
taxes, equal to the SC-4 rate for Consolidated Edison plus eleven percent (11%)
for transmission line loss and other redistribution costs. If, in Landlord’s
judgment, Tenant’s use shall require more than one (1) submeter in the demised
premises, Landlord shall install additional submeter(s) in the demised premises
at Tenant’s sole cost and expense. If there is more than one submeter in the
demised premises, each meter may be computed and billed separately in accordance
with the rates and terms set forth herein. If any tax is imposed upon Landlord’s
receipt from the sale or resale of electrical energy or gas or telephone service
to Tenant by any federal, state or municipal authority, Tenant covenants and
agrees that where permitted by law, Tenant’s pro-rata share of such taxes shall
be passed on to and included in the amount charged to, and paid by Tenant to
Landlord as additional rent. If there are problems with the demised premises’
submeters and/or the submeters cannot be used, Landlord shall promptly and
diligently perform such work as is necessary so that such submeters can be
used,
and the parties agree that, at Landlord’s option, if it cannot reasonably be
determined what Tenant’s usage was while such submeters were not in use,
Tenant’s annual actual cost for electricity shall be deemed to be a sum equal to
$3.00 times the agreed rentable square foot area of the demised premises,
changed in the same percentage as any increases in the cost to Landlord for
electricity for the entire Building subsequent to January 1, 2004 because of
electric rate, time of day charges, service classification or market price
changes. Tenant, shall not, without Landlord’s prior written consent in each
instance, connect any fixtures, appliances or equipment (other than a reasonable
number of table and floor lamps, typewriters, personal computers and similar
small office machines using comparable electric current) to the Building’s
electric distribution system nor make any alteration or addition to the
electrical system of the demised premises. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided
by
Landlord upon notice to Tenant, and all reasonable and out-of-pocket cost and
expenses of Landlord in connection therewith shall be paid by Tenant as
additional rent upon demand by Landlord.
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B.
Landlord
reserves the right to discontinue furnishing electric current to Tenant on
a
submetering basis at any time upon not less than sixty (60) days’ notice to
Tenant. If Landlord elects not to furnish electric current to Tenant on a
submetering basis, Tenant shall arrange to obtain electric current directly
from
the public utility company supplying electric current to the Building; and
in
that event, all risers, equipment and other facilities which may be required
for
Tenant to obtain electric current directly from such public utility corporation
and may already be in the Building, may be used by Tenant at no additional
charge to Tenant. If Landlord exercises its right to discontinue furnishing
electric current to Tenant, this Lease shall continue in full force and effect
and shall be unaffected thereby, except only that, from and after the effective
date of such discontinuance, Landlord shall not be obligated to furnish electric
current to Tenant on a submetering basis; however, if Tenant is unable to obtain
direct electric service by the effective date of such discontinuance, so long
as
Tenant continues to make reasonable efforts to obtain direct electric service,
Landlord shall continue to provide electric service until Tenant has obtained
direct electric service. If, in Landlord’s reasonable judgment, additional
risers are required, such risers shall be installed by Landlord at Tenant’s
reasonable expense, payable in advance to Landlord upon demand, provided same
will not cause damage or injury to the Building or any part thereof or create
a
hazardous condition or entail excessive alterations, repairs or expense or
unreasonably interfere with or disturb any other tenants or occupants of the
Building, and in any event, any such installation shall be maintained by Tenant,
at its expense and shall be subject to such reasonable conditions as Landlord
and/or the utility company may require. Landlord’s election to not furnish
electric current to Tenant shall not be deemed a lessening or diminution of
services within the meaning of any law, rule or regulation now or hereafter
enacted, promulgated or issued.
45. As
Is; Landlord’s Work:
Notwithstanding anything to the contrary contained herein, Landlord shall,
at
its expense, perform, or cause to be performed, all work necessary so that
a
third (3rd)
window
air conditioning unit has been installed in the demised premises at a location
designated by Landlord (such work is herein referred to as “Landlord’s Work”).
Tenant shall perform all other work (“Tenant’s Work”) necessary for it to use
the demised premises as contemplated in this Lease and such work shall be
performed in accordance with the Legal Requirements, at Tenant’s sole expense,
pursuant to plans, drawings and specifications therefor prepared by Tenant
and
submitted to, and approved by Landlord and subject to the terms of this Lease,
including, without limitation, Article
10 hereof.
46. Air
Conditioning:
Tenant
shall, at its own cost and expense, operate, maintain, repair and replace the
air-conditioning equipment (hereinafter called the “AC System”) now or hereafter
located in or servicing the demised premises. If there is a warranty on the
AC
System, Landlord shall either assign such warranty to Tenant or reasonably
cooperate with Tenant so that Tenant may have the benefit of such warranty.
The
electricity consumed by the AC System shall be paid for by Tenant as set forth
in the applicable provisions of Article
44
hereof.
Installation of any additional air-conditioning equipment is considered an
alteration and as such shall be subject to the provisions of Article 10 hereof.
If
any
permit or license is required for the operation of the AC System, Tenant shall,
at Tenant’s expense, obtain and maintain any such permit or license unless
Landlord elects to obtain the same on Tenant’s behalf and at Tenant’s expense.
47. Cleaning/Trash
Services:
Tenant
shall obtain and pay for cleaning services for the demised premises at Tenant’s
sole cost and expense. Tenant shall pay Landlord $52.27 per month as additional
rent hereunder on or before the 1st
day of
each month during the Term hereof and during all additional periods Tenant
is in
possession of the demised premises and/or in occupancy of the demised premises
for ordinary office trash collection from a location designated by Landlord,
subject to reasonable adjustment from time to time, to reflect Landlord’s
standard trash collection charges based upon the relative size of the space
occupied by a tenant.
48.
No
Broker:
Tenant
warrants and represents to Landlord that Tenant has not had any conversations,
correspondence or dealings with any real estate broker, agent or finder in
connection with this Lease and/or concerning the renting or leasing of premises
located in the Building and Tenant covenants and agrees to indemnify, defend
and
hold Landlord harmless on demand from and against any and all costs, expenses
or
liability (including reasonable attorneys’ fees) for any compensation,
commissions, fees and charges claimed by any broker, agent or finder in
connection with this Lease and/or concerning the renting or leasing of premises
located in the Building due to conversations, correspondence or dealings of
Tenant with the claimant.
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Initial: Landlord _____ Tenant _____
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49. ICIP/CEP/ECSP:
A.
Tenant’s percentage share of the Building is: 0.931%. Landlord and Tenant
acknowledge that Landlord may apply for or has already applied for a certificate
of eligibility from the Department of Finance of the City of New York
determining that Landlord is eligible to apply for exemption from tax payments
for the Building pursuant to the provisions of Section 11-256 through 11-267
(the “ICIP Program”) of the Administrative Code of the City of New York and the
regulations promulgated pursuant to the ICIP Program. Any such tax exemption
for
the Building is referred to as “Tax Exemption” and the period of such Tax
Exemption is referred to as the “Tax Exemption Period”. Landlord agrees that
Tenant shall not be required to (a) pay Taxes or charges which become due
because of the willful neglect or fraud by Landlord in connection with the
ICIP
Program or (b) otherwise relieve or indemnify Landlord from any personal
liability arising under the ICIP Program, except where imposition of such Taxes,
charges or liability is occasioned by actions of Tenant in violation of this
Lease. Tenant agrees (i) to report to Landlord, as often as is necessary under
such regulations, the number of workers engaged in employment in the demised
premises, the nature of each worker’s employment and the residency of each
worker and to provide access to the demised premises by employees and agents
of
the Department of Finance of the City of New York at all reasonable times at
the
request of Landlord, (ii) that any work performed by Tenant or any person or
entity claiming through or under Tenant shall be subject to the requirements
of
Executive Order No. 50 (April 25, 1980) and the Rules and Regulations
promulgated thereunder (collectively, “EO 50”) and the ICIP Program and (iii)
that Tenant will comply with and cause its general contractor, construction
manager, and all other subcontractors (collectively, the “Contractors”) to
comply with EO 50 and the ICIP Program. Tenant represents to the Landlord that,
within the seven (7) years immediately preceding the date of this Lease, Tenant
has not been adjudged by a court of competent jurisdiction to have been guilty
of (x) an act, with respect to a building, which is made a crime under the
provisions of Article 150 of the Penal Law of the State of New York or any
similar law of another state, or (y) any act made a crime or violation by the
provisions of Section 235 of the Real Property Law of the State of New York,
nor
is any charge for a violation of such laws presently pending against Tenant.
Upon request of Landlord, from time to time, Tenant agrees to update said
representation when required because of the ICIP Program and regulations
thereunder. Tenant further agrees to cooperate with Landlord in compliance
with
such ICIP Program and regulations to aid Landlord in obtaining and maintaining
the Tax Exemption and, if requested by Landlord, to post a notice in a
conspicuous place in the demised premises and to publish a notice in a newspaper
of general circulation in the City of New York, in such form as shall be
prescribed by the Department of Finance stating that persons having information
concerning any violation by Tenant of Section 235 of the Real Property Law
or
any Section of Article 150 of the Penal Law or any similar law of another
jurisdiction may submit such information to the Department of Finance to be
considered in determining Landlord’s eligibility for benefits. Tenant
acknowledges that its obligations may be greater if Landlord fails to obtain
a
Tax Exemption, and agrees that Landlord shall have no liability to Tenant nor
shall Tenant be entitled to any abatement or diminution of rent if Landlord
fails to obtain a Tax Exemption.
B.
Landlord has applied or may hereafter apply to make the demised premises
eligible for the New York City Commercial Enhancement Program (“CEP”). If Tenant
is deemed eligible for CEP, any reduction in real property taxes on the Tenant’s
Percentage thereof will be passed through to the tenant after deducting the
fee
payable in connection with the CEP application. Tenant understands that the
minimum required expenditure for any given space to be eligible for CEP is
$2.50
per square foot or $25 per square foot, depending on the length and nature
of
this Lease. Tenant also understands that all abatements granted under CEP are
contingent upon Landlord’s payment of real estate taxes, water or sewer charges,
and/or other lienable charges during the benefit period. Benefits will be
revoked if such charges are not paid as provided in the relevant
law.
C.
Tenant
agrees to submit a complete Energy Cost Savings Program (“ECSP”) application to
the New York City Department of Business Services (“DBS”) as directed by
Landlord or Landlord’s representative. Tenant agrees to comply with ECSP and DBS
rules and regulations regarding same. This includes the submission of all
appropriate documentation required for the ECSP approval including, but not
limited to, one week of payroll information current at the time of application
submittal, disclosing the identity of all company principals, and the like.
Landlord will cooperate with Tenant’s application process as it may pertain to
the supplying of Landlord requisite information. If Tenant has an existing
lease
at the time of ECSP building approval, it must submit the completed ECSP
application to DBS within ninety (90) days of such approval and notification
by
Landlord.
D.
In no
event shall Landlord have any liability to Tenant if Landlord fails to obtain
the benefits, in whole or in part, of any tax abatement, credit or exemption
described in this Article or otherwise.
END
OF
RIDER
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Initial: Landlord _____ Tenant _____
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Exhibit
A - demised premises drawing
Please
Initial: Landlord _____ Tenant _____
