Exhibit 10.13
-------------
AGREEMENT OF LEASE
BETWEEN
RSK REALTY LTD
AND
Xxxxxx Wireless Technologies, Inc.
TABLE OF CONTENTS
SPACE ...........................................................1
TERM.............................................................1
RENT.............................................................3
USE OF PREMISES..................................................6
TAXES............................................................7
CONDITION OF PREMISES AND DELIVERY OF POSSESSION.................8
INITIAL CONSTRUCTION.............................................8
REPAIRS, MAINTENANCE, FLOOR LOADS AND PARKING RESTRICTION........9
TENANT'S ALTERATION.............................................12
UTILITIES.......................................................14
REQUIREMENTS OF LAW, SPRINKLERS.................................14
INSURANCE.......................................................17
DAMAGE OR DESTRUCTION...........................................19
SUBORDINATION...................................................21
INDEMNIFICATION.................................................23
EMINENT DOMAIN..................................................23
RIGHT TO SUBLET OR ASSIGN.......................................25
RIGHT TO INSPECT; POSTING SIGNS.................................28
DEFAULT.........................................................30
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REMEDIES OF LANDLORD............................................31
ATTORNEY'S FEES.................................................33
WAIVER OF REDEMPTION, COUNTERCLAIM, TRIAL BY JURY...............33
NO WAIVER.......................................................34
END OF TERM.....................................................35
BROKER..........................................................36
QUIET ENJOYMENT.................................................37
NONLIABIITY OF LANDLORD.........................................37
NO ABATEMENT....................................................38
APPLICABLE LAW AND CONSTRUCTION.................................38
CONSTRUCTION ON ADJACENT PREMISES OR BUILDINGS..................39
UTILITY EASEMENT................................................40
NOTICES.........................................................40
BINDING EFFECT OF LEASE.........................................40
UNAVOIDABLE DELAYS..............................................41
SANITARY SYSTEMS................................................41
COMMON AREA MAINTENANCE CHARGE..................................41
PARKING.........................................................42
CLEANING, RUBBISH REMOVAL.......................................42
EXHIBIT "A".....................................................45
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AGREEMENT OF LEASE
AGREEMENT OF LEASE made as of the 1st day of March, 2000
between RSK Realty LTD a limited partnership having its principal office at 00
Xxxxxxx Xxxx, Xxxxxxxxx Xxxxxx, Xxx Xxxx 00000 (hereinafter referred to as
"Landlord"), and Xxxxxx Wireless Technologies, Inc., a corporation having its
principal office at 000 Xxxxx Xxxxxx, Xxxxxxxxxxx, XX (hereinafter referred to
as "Tenant").
SPACE
1. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the real property and the building and other improvements thereon known
as and located at 000 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 as shown on
Exhibit "A" annexed hereto (such real property, building and improvements being
hereinafter referred to as the "Premises" and such building being hereinafter
referred to as the "Building"). The parties stipulate and agree that the
Premises contains 13,602 square feet in a Building containing 68,282 square feet
which constitutes 20.00 percent of the areas of the Building ("Tenant's
Proportionate Share").
The Premises are let subject to covenants, restrictions and
easements of record, governmental laws, rules, regulations and orders, and the
reservation by Landlord of all air rights above, around and about the Premises
and all rights to increase the sizes of surrounding buildings based on the air
rights appurtenant to the Premises, and, if and when permitted by any present or
future zoning laws, ordinances, orders or regulations.
TERM
2. (a) The term ("Term" or "Demised Term" or "term") of this lease
shall commence on the date of this lease (the "Term Commencement Date").
Tenant's obligation to pay Rent (as defined in Article 3) shall commence on
March. 1, 2000. The Term of this lease shall expire on the day (hereinafter
referred to as the "Expiration Date") which is ten (10) years after (i) the Rent
Commencement Date, if such date is the first day of a calendar month, or (ii)
the first day of the first full calendar month following the Rent Commencement
Date, if such date is not the first day of a calendar month.
(b) Tenant waives any right to rescind this lease under Section 223-a
of the New York Real Property Law or any successor statute of similar import
then in force and further waives the right to recover any damages which may
result from Landlord's failure to deliver possession of the Premises by the Rent
Commencement Date.
(c) Upon the request of Landlord, Tenant agrees to execute a writing,
prepared and executed by Landlord, setting forth the actual date on which the
Term Commencement Date, the Rent Commencement Date and the Expiration Date took
place or will take place. Notwithstanding anything to the contrary contained
herein, such writing shall be deemed a part of this lease and conclusive
evidence of such dates.
(d) A "Lease Year" shall comprise a period of twelve (12) consecutive
calendar months. The first Lease Year shall commence on the Rent Commencement
Date but, notwithstanding the first sentence of this paragraph, if the Rent
Commencement Date is not the first day of a month, then the first Lease Year
shall include the additional period from the Rent Commencement Date to the end
of the month in which the Rent Commencement Date shall take place. Each
succeeding Lease Year shall end on the anniversary date of the last day of the
preceding Lease Year. For example, if the Rent Commencement Date is January 1,
1999, the first Lease Year would begin on January 1, 1999 and end on December
31,1999 and each succeeding Lease Year would end on December 31st. If, however,
the Rent Commencement Date is January 2, 1999, the first Lease Year would begin
on January 2, 1999 and end on January 31, 2000, the second Lease Year would
begin on February 1, 2000, and each succeeding Lease Year would end on January
31st.
RENT
3. (a) Tenant covenants to pay to Landlord at its principal office, or
at such place as Landlord shall from time to time direct in writing, the minimum
annual rent set forth below, and the additional rent required to be paid
pursuant to the terms of this lease. Minimum annual rent and such other
additional rent and charges which Tenant shall be required to pay are
hereinafter sometimes referred to as "Rent". Minimum annual rent shall be as
follows:
During the first Lease Year, the minimum annual rent shall be
$91,813.50 payable in equal monthly installments of $7,651.13.
During the second Lease Year, the minimum annual rent shall be
$95,486.16 payable in equal monthly installments of $7,957.18
During the third Lease Year, the minimum annual rend shall be
$99,305.50 payable in equal monthly installments of $8,275.46.
During the fourth Lease Year, the minimum annual rent shall be
$103,277.74 payable in equal monthly installments of $8,606.48.
During the fifth Lease Year, the minimum annual rent shall be
$107,408.84
payable in equal monthly installments of $8,950.74.
During the sixth Lease Year, the minimum annual rent shall be
$110,631.08 payable in equal monthly installments of $9,219.26.
During the seventh Lease Year, the minimum annual rent shall be
$113,950.05 payable in equal monthly installments of $9,495.84.
During the eighth Lease Year, the minimum annual rent shall be
$117,938.31 payable in equal monthly installments of $9,828.19.
During the ninth Lease Year, the minimum annual rent shall be
$122,066.14 payable in equal monthly installments of $10,172.18
During the tenth Lease Year, the minimum annual rent shall be
$126,338.40 payable in equal monthly installments of $10,528.20.
(b) Tenant shall pay the minimum annual rent in equal monthly
installments in advance on the first day of each calendar month included in the
term, except that Tenant shall pay the first month's rent upon execution of this
lease.
(c) All Rent shall be paid 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 address of Landlord set forth in this
lease or at such other place as Landlord in writing may designate without any
set-off or deduction whatsoever and without any prior demand therefor.
(d) Unless another time shall be herein expressly provided,
any additional rent shall be due and payable on demand or together with the next
succeeding installment of minimum annual rent, whichever shall first occur; and
Landlord shall have the same remedies for failure to pay the additional rent as
for a non-payment of minimum annual rent.
(e) For any portion of a calendar month included at the
beginning or end of the term, Tenant shall pay 1/30th of the closest applicable
monthly installment of minimum annual rent (specifically excluding month one of
the first Lease Year and months eleven and twelve of the tenth Lease Year) for
each day of such portion, payable in advance at the beginning of such portion.
(f) In any case in which the minimum annual rent of additional
rent is not paid within five (5) days of the day when same is due, Tenant shall
pay a late charge equal to 8-1/2 cents for each dollar so due; and, in addition
thereto, the sum of $100.00 for the purpose of defraying expenses incident to
the handling of such delinquent account. Tenant further agrees that the late
charge imposed herein is fair and reasonable, complies with all laws,
regulations and statutes, and constitutes an agreement between Landlord and
Tenant as to the estimated compensation for costs and administrative expenses
incurred by Landlord due to the late payment of rent to Landlord by Tenant.
Tenant further agrees that the late charge assessed pursuant to this lease is
not interest, and the late charge assessed does not constitute a lender or
borrower/creditor relationship between Landlord and Tenant.
(g) If Tenant shall default in making any payment required to
be made by Tenant or in performing any obligation of Tenant under this lease
which shall require the expenditure of money, Landlord may, but shall not be
obligated to, make such payment on behalf of Tenant or expend such sum as may be
necessary to perform or fulfill such obligation. Any sums so paid by Landlord
shall be deemed Rent and shall be due and payable to Landlord at the time of
payment of the next installment of minimum annual rent.
USE OF PREMISES
4. (a) Tenant shall use and occupy the Premises solely for light
manufacturing of microwave components and products, and executive and
administrative offices related thereto and for no other purpose. Tenant shall
not use or permit the use of the Premises contrary to any applicable statute,
ordinance or regulation or in violation of the Certificate of Occupancy of the
Building, or in a manner which would cause structural injury to the Building.
(b) Tenant acknowledges that the value of the Premises and the
reputation of Landlord will be seriously injured if the Premises are used for
any obscene or pornographic purposes or if any obscene or pornographic material
is permitted on the Premises. Tenant further agrees that Tenant will not permit
any such uses by Tenant or a sublessee of the Premises or an assignee of this
lease. This Paragraph shall directly bind any successors in interest to Tenant.
Tenant agrees that, if at any time, Tenant violates any of the provisions of
this Paragraph, such violation shall be deemed a breach of a substantial
obligation of the terms of this lease and objectionable conduct. Pornographic
material is defined for purposes of this Paragraph as any written or pictorial
matter with prurient appeal or any objects or instruments that are primarily
concerned with lewd or prurient sexual activity. Obscene material is defined
here as it is in Penal Law ss.235.00.
TAXES
5. (a) During the term of this lease, Tenant covenants and
agrees to pay, in the manner set forth in this Article, all Real Estate Taxes,
as additional rent.
(b) The term "Real Estate Taxes" shall be deemed to mean all
taxes and assessments, special or otherwise, assessed upon or with respect to
the ownership and all other taxable interests in the land and improvements
thereon of which the Demised Premises are part, imposed by Federal, State or
local governmental authority or any other taxing authority having jurisdiction
over Landlord's tax lot or lots, but shall not include income, intangible,
franchise, capital stock, estate in inheritance taxes, or taxes based upon the
receipt of rentals (unless the same shall be in lieu of "Real Estate Taxes" as
herein defined by whatever name the tax may be designated).
(c) Commencing on the Rent Commencement Date and continuing
throughout the term of this lease, Tenant shall pay to Landlord the Real Estate
Taxes for each tax year occurring in whole or part during the term of this
lease. Any amount due to Landlord under the provisions of this Article shall be
paid within five (5) days after receipt by Tenant from Landlord of an invoice
therefor. Landlord shall furnish Tenant with evidence of the amount of such Real
Estate Taxes. A copy of the tax xxxx shall be sufficient evidence of the amount
of Real Estate Taxes imposed upon the Premises. Tenant shall also pay when due
any occupancy taxes arising under or in connection with this lease. In addition
to the foregoing, Tenant shall also be responsible for any increase in Real
Estate Taxes resulting from Tenant's improvements performed by or on behalf of
Tenant.
(d) Landlord's failure during the term of this lease to
prepare and deliver any of the foregoing invoices, tax statements, or other
demand for payment of Real Estate Taxes or Landlord's failure to make a demand
for any other item of additional rent due hereunder shall not in any way waive
or cause Landlord to forfeit or surrender its rights to collect any of the
foregoing items of additional rent which may have become due during the term of
this lease.
(e) If any mortgagee of the Premises requires that funds for
the payment of Real Estate taxes be escrowed with such mortgagee, Tenant shall
pay to such mortgagee, in a timely manner, the amounts required by such
mortgagee to be escrowed for the payment of Real Estate Taxes.
(f) Tenant shall pay to Landlord on demand any Real Estate
Taxes relating to the term of this lease which may have been prepaid by
Landlord. With respect to any period at the expiration of the term of this lease
which shall constitute a partial tax year, Tenant shall be responsible for the
Real Estate Taxes allocable to such partial tax year and Landlord's tax
statement shall apportion the amount of the additional rental due hereunder. The
obligation of Tenant in respect of such additional rent applicable for the last
year of the term of this lease or part thereof shall survive the expiration of
the term of this lease.
CONDITION OF PREMISES AND DELIVERY OF POSSESSION
6. (a) Except as otherwise specifically set forth in Article 7 hereof,
Tenant agrees to accept the Premises in its "as is" condition and understands
and agrees that Landlord shall not be required to perform any work, supply any
materials or incur any expense to prepare the Premises for Tenant's occupancy.
(b) If Landlord shall be unable to deliver possession of the
Premises by the Rent Commencement Date, Landlord shall not be subject to any
liability for such failure to give possession and Tenant hereby waives the
provisions of Section 223-a of the Real Property Law of the State of New York
and any other law of like import now or hereafter enacted.
INITIAL CONSTRUCTION
7. The heating, ventilating and air conditioning systems servicing the
Premises shall be in good working order as of the Rent Commencement Date. Tenant
shall, at Tenant's sole cost and expense, perform the work necessary to prepare
the Premises for Tenant's occupancy in accordance with and pursuant to the
provisions of Article 9 herein. Upon completion of the foregoing work and
Landlord's satisfactory inspection of same, Landlord shall provide Tenant with a
work allowance of Twenty Seven Thousand ($27,000.00) Dollars to be used by
Tenant in connection with the work necessary to prepare the Premises for
Tenant's occupancy.
REPAIRS, MAINTENANCE, FLOOR LOADS AND PARKING RESTRICTUION
8. (a) Tenant shall at all times keep and maintain the Premises in good
order, condition and repair, and shall make all nonstructural repairs to the
Premises, including, without limiting the generality of the foregoing, (i)
maintenance and repair of the electrical, plumbing, heating, air conditioning,
ventilation and all other mechanical systems servicing the Premises; (ii)
regularly-scheduled cleaning and maintenance of the interior of the Premises;
(iii) the repair and maintenance of all plate glass; (iv) all common areas,
landscaping, sidewalks, driveways and parking areas at the Building; and (vi)
keeping the exterior Premises clean and free of debris, snow and ice. Tenant
shall obtain and keep in full force and effect for the benefit of Landlord and
Tenant, with a responsible company doing business in Nassau or Suffolk County, a
service, repair and maintenance contract with respect to the heating,
ventilating and air conditioning systems of the Premises. A copy of such
contract and all renewals thereof shall, upon issuance and thereafter not later
than ten (10) days prior to expiration, be furnished to Landlord together with
evidence of payment. If Tenant fails to make any repairs or replacements
required to be made by Tenant, Landlord may, without obligation, perform same
for the account of Tenant at Tenant's expense and the cost thereof shall be due
and payable by Tenant to Landlord as additional rent. In the event that
structural repairs, replacements or alterations or any other repairs or
replacements included under Article 8 (b) hereof shall be necessitated or
occasioned, in whole or in part, by
the acts, omissions, or negligence of Tenant or any person claiming through or
under Tenant or any of their servants, employees, contractors, agents, visitors
or licensees, or by the use or occupancy or manner of use or occupancy of the
Premises by Tenant, or any such person, Landlord shall make such repairs,
replacements or alterations at Tenant's sole cost and expense.
(b) Landlord shall be responsible for maintenance and repair of the
structural elements of the Building, excluding the roof, which Tenant shall be
responsible to repair and maintain. In the event that maintenance and repair of
the structural elements of the Building are caused or necessitated by the
negligence or intentional acts of Tenant, its agents, servants, employees,
licensees or invitees, Landlord shall perform such repairs at Tenant's sole cost
and expense. Landlord shall not be required to commence any repairs required to
be performed by it until after notice from Tenant that same are necessary, which
notice, except in the case of emergency, shall be in writing and shall permit
Landlord ten (10) days in which to commence such repair. When necessary by
reason of accident or other casualty occurring in the Building or at the
Premises or in order to make any necessary repairs, alterations or improvements
in or relating to the Building or the Premises or other portions of Landlord's
property, Landlord reserves the right to interrupt, temporarily, and on written
notice to Tenant the supply of utility service until said repairs or
improvements shall have been completed. There shall be no abatement in Rent
because of any such interruption.
(c) Tenant shall not place a load upon any floor of the Premises which
exceeds the floor load per square foot area which such floor was designed to
carry. If tenant shall desire a floor load in excess of that for which the floor
of any portion of the Premises is designed, upon submission to Landlord of plans
showing the location of and the desired floor live load for the area in
question, Landlord may strengthen and reinforce the same, at Tenant's sole
expense, so as to carry the live load desired. Business machines and mechanical
equipment used by Tenant which cause vibration or noise that may be transmitted
to or through the Building shall be placed and maintained by Tenant, at its
expense, in settings of cork, rubber or spring-type vibration eliminators
sufficient to eliminate such vibration or noise.
(d) Tenant shall comply with the following restrictions with
respect to the Premises:
(i) Tenant shall store all trash and refuse in appropriate
sealed and covered containers either within the Premises or in a concealed
location at the rear of the Building and shall attend to the regular disposal
and removal thereof.
(ii) Tenant shall receive all deliveries, load and unload goods,
merchandise, supplies, fixtures, equipment, furniture and rubbish only through
proper service doors and loading docks serving the Building, but in no event
through the main front entrance thereof.
(iii) Tenant shall not change the exterior colors or
architectural treatment of the Premises or make any alterations or changes to
the exterior of the Building or to the grading, planting or landscaping of the
exterior of the Building without the consent of Landlord which shall not be
unreasonably withheld.
(iv) Tenant shall not place or install or suffer to be placed or
installed any sign upon the Building or the Premises unless such sign shall be
approved by Landlord and shall be harmonious with the signs of adjoining
properties. In any event, Tenant shall not place or cause to be placed upon the
Building any
awning, canopy, banner, flag, pennant, aerial, antenna or the like. All signs or
lettering on or about the Premises or the Building shall be neat and of
reasonable size. The following are strictly prohibited:
(x) Paper signs and stickers;
(y) Moving, flickering or flashing lights;
(z) Exposed neon or florescent tubes or other exposed light
sources.
(v) Tenant shall not permit the parking of any vehicle on the
streets and roadways adjoining or surrounding the Building and Tenant shall
require its employees, customers, invitees, licensees and visitors to park only
in the parking areas serving the Premises. Tenant agrees that any violators of
this parking restriction may be towed away by Landlord at Tenant's sole cost and
expense and Tenant shall indemnify, defend and hold Landlord harmless against
any claims or liabilities (including Landlord's attorneys' fees) arising by
reason of such towing by Landlord.
(vi) Tenant shall not manufacture or store any item which, in
the opinion of Landlord, causes offensive odors, irritations, or any discomfort
to occupants of the Building of which the Premises form a part.
TENANT'S ALTERATION
9. Tenant shall not make, without Landlord's prior written consent, any
installations, repairs, alterations, improvements or changes in or to the
Premises. All improvements, alterations and replacements, and all building
service equipment made or installed by or on behalf of Tenant, shall immediately
upon completion or installation thereof be and become the property of Landlord
(except for purposes of sales tax which shall remain Tenant's obligation) and
shall remain upon the Premises at the expiration or sooner termination of this
lease. Notwithstanding the foregoing, all trade fixtures, movable partitions,
furniture and furnishings installed at the expense of Tenant shall remain the
property of Tenant and Tenant may remove the same or any part thereof during the
term of this lease, or if the term shall end prior to the date herein
specifically fixed for such termination, then within a reasonable time
thereafter, but Tenant shall, at its expense, repair any and all damage to the
Premises resulting from or caused by such removal. Title to any property which
Tenant elects not to remove or which is abandoned by Tenant shall, at the end of
the term, vest in Landlord. Tenant shall not make any repairs, alterations or
improvements until it shall have first submitted to Landlord all drawings,
plans, layouts and specifications for such work (plans and specifications") and
Landlord shall have approved same. All such work to be performed by Tenant shall
be in accordance with the approved plans and specifications and Landlord shall
have the right at any time during the pendency of such work to inspect the
Premises and the manner of construction. All plans and specifications shall be
compatible with the Landlord's building plans; comply with all applicable laws,
including without limitation, the Americans with Disabilities Act of 1990, as
amended, and the rules, regulations, requirements and orders of any and all
government agencies, departments or bureaus having jurisdiction; and be fully
detailed, including
locations and complete dimensions. Tenant shall, at Tenant's expense, (i) cause
all plans and specifications to be filed with the governmental agencies having
jurisdiction thereover, (ii) obtain when necessary all governmental permits,
licenses and authorizations required for the work to be done in connection
therewith, and (iii) obtain all necessary certificates of occupancy, both
temporary and permanent. Landlord shall execute such documents as may be
reasonably required in connection with the foregoing and Landlord shall
otherwise cooperate with Tenant in connection with obtaining the foregoing, but
without any expense to Landlord. No work shall commence in the Premises until
(i) Tenant has procured all necessary permits therefor and has delivered copies
of same to Landlord, (ii) Tenant has procured a paid builder's risk insurance
policy with a combined single limit of Three Million ($3,000,000.00) Dollars for
personal injury, death and property damage claims arising out of any one
occurrence naming Landlord as an additional insured and has delivered to
Landlord a certificate of insurance evidencing such policy, and (iii) Tenant or
its contractor has procured a worker's compensation insurance policy covering
the activities of all persons working at the Premises and has delivered to
Landlord a certificate of insurance evidencing such policy. Tenant may use any
licensed architect or engineer, reasonably approved by Landlord, to prepare its
plans and specifications to file for permits. However, all such plans and permit
applications shall be subject to review, revision and approval by Landlord or
its architect. In the event of any such repairs, alterations or improvements,
Landlord shall have the option to require Tenant to deliver to Landlord at
Tenant's cost and expense a bond satisfactory to Landlord in the sum equal to
the cost of the work. Any mechanic's liens filed at any time against the
Premises, for work claimed to have been performed or for materials claimed to
have been furnished to Tenant or Tenants contractors or subcontractors, shall be
discharged by Tenant within ten (10) days after filing by bonding, payment or
otherwise, and upon Tenant's failure to timely discharge any such lien, Landlord
may discharge same through payment, bonding or otherwise and Tenant shall
reimburse Landlord, upon demand, for all costs incurred by Landlord in
connection therewith.
UTILITIES
10. (a) Tenant shall provide (through a provider selected by Landlord),
at its own expense, fuel, heat, water, electricity and all other utilities
required in connection with its use of the Premises. Landlord shall be obligated
only to make available to Tenant the utility lines and facilities servicing the
Premises in working order at the commencement of the term of this lease.
(b) Tenant shall be responsible for all deposits required by the
respective utilities for service. Tenant shall comply with all requirements of
the utilities supplying said service. Landlord shall have no responsibility for
the installation of telephone or data service.
REQUIREMENTS OF LAW, SPRINKLERS
11. (a) Tenant shall promptly execute and comply with all statutes, ordinances,
rules, orders, regulations and requirements (including those which require
structural alterations) of the federal, state, county and local government and
of any and all their departments and bureaus applicable to the Premises, for the
correction, prevention or abatement of nuisances or other grievances in, upon,
or connected with the Premises during the term; and shall also promptly comply
with and execute all rules, orders and regulations of the New York Board of Fire
Underwriters for the prevention of fires at the Tenant's own cost and expense.
In the event Tenant is required by the provisions of this paragraph to make a
structural alteration, Landlord shall perform such alteration at Tenant's sole
cost and expense.
b) Tenant shall keep and maintain any sprinkler system now or
hereafter installed in the Premises in good repair and working condition, and if
the New York Board of Fire Underwriters or the New York Fire Insurance Exchange
or any bureau, department or official of any federal, state or local
governmental or quasi-governmental authority shall require or recommend any
changes, modifications or alterations, including, without limitation, additional
sprinkler heads or other equipment, to be made or supplied by reason of the
Tenant's business or the location of partitions, trade fixtures, or other
contents of the Premises, or if such changes, modifications, alterations,
additional sprinkler heads or other equipment in the Premises are necessary to
prevent the imposition of a penalty or charge against the full allowance for a
sprinkler system in the fire insurance rate as fixed by said Exchange or by any
fire insurance company with respect to the Building, the Premises or any
adjoining or nearby buildings or improvements, Tenant shall at Tenant's sole
cost and expense, promptly make and supply such changes, modifications,
alterations, additional sprinkler heads or other equipment.
(c) If by reason of Tenant's use and occupancy or abandonment of the
Premises, or if by reason of the improper or careless conduct of any business
upon or use of the Premises, the fire insurance rates for the Building, or any
other tenants or occupants of the Building or any adjoining or nearby buildings
or improvements (including contents and equipment coverage) shall at any time be
higher than it otherwise would be, Tenant shall reimburse Landlord, as
additional rent hereunder, for that part of all fire insurance premiums charged
to such other owners, tenants or occupants because of the improper or careless
conduct of any business upon or use of the Premises, and shall make such
reimbursement upon the first day of the month following billing thereof by
Landlord. In any action or proceeding based upon or arising out of this
provision, a schedule or "make up" of rates of the Building or any other
affected insurance coverage purporting to have been issued by the New York Fire
Insurance Exchange, or other body making fire insurance rates, shall be prima
facie evidence of the facts therein stated.
(d) Tenant shall keep or cause the Premises to be kept free of
Hazardous Materials (hereafter defined). Without limiting the foregoing, Tenant
shall not cause or permit the Premises to be used to generate, manufacture,
refine, transport, treat, store, handle, dispose, transfer, produce or process
Hazardous Materials excepts in compliance with all applicable federal, state and
local laws or regulations, nor shall Tenant cause or permit, as a result of any
intentional or unintentional act or omission on the part of Tenant or any
subtenant,
a release of Hazardous Materials onto the Premises or onto any other property.
Tenant shall comply with and ensure compliance by all subtenants with all
applicable federal, state and local laws, ordinances, rules and regulations
whenever and by whomever triggered, and shall obtain and comply with and ensure
that all subtenants obtain and comply with, any and all approvals, registrations
or permits required thereunder. Tenant shall (A) conduct and complete all
investigations, studies, samplings, and testing, and all remedial removal, and
other actions necessary to clean up and remove all Hazardous Materials, on,
from, or affecting the Premises (i) in accordance with all applicable federal,
state and local laws, ordinances, rules, regulations, and policies, (ii) to the
satisfaction of Landlord, and (iii) in accordance with the orders and directives
of all federal, state, and local governmental authorities, and (B) defend,
indemnify, and hold harmless Landlord, its employees, agents, officers, and
directors from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs, or expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way related to, (i)
the presence, disposal, release or threatened release of any Hazardous Materials
which are on, from, or affecting the soil, water, vegetation, buildings,
personal property, persons, animals, otherwise; (ii) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
or related to such Hazardous Materials; (iii) any lawsuit brought or threatened,
settlement reached, or government order relating to such Hazardous Materials;
and/or (iv) any violation of laws, orders, regulations, requirements, or demands
of government authorities, or any policies or requirements of Landlord which are
based upon or in any way related to such Hazardous Materials, including, without
limitation, attorney and consultant fees, investigation and laboratory fees,
court costs, and litigation expenses. In the event this lease is terminated, or
Tenant is dispossessed, Tenant shall deliver the Premises to Landlord free of
any and all Hazardous Materials so that the conditions of the Premises shall
conform with all applicable Federal, State and Local laws, ordinances, rules or
regulations affecting the Premises. For purposes of this paragraph, "Hazardous
Materials" includes, without limit, any flammable explosives, radioactive
materials, hazardous materials, hazardous wastes, hazardous or toxic substances,
or related materials defined in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U. S.C. Sections 9601,
et seq.), the Hazardous Materials Transportation Act, as amended (49 U. S. C.
Sections 1801 et seq.), the Resource Conservation and Recovery Act, as amended
(42 U. S. C. Sections 9601, et seq.), and in the regulations adopted and
publications promulgated pursuant thereto, or any other federal, state or local
environmental law, ordinance, rule, or regulation.
INSURANCE
12. (a) Tenant shall obtain and keep in full force and effect during
the Term, at its own cost and expense, (i) General Comprehensive Commercial
Liability Insurance, such insurance to afford protection in an amount of not
less than Three Million $3,000,000) Dollars combined single limit coverage for
injury, death and property damage arising out of any one occurrence, protecting
Tenant as insured and Landlord as additional insured against any and all claims
for personal injury, death or property damage, such policy or
policies to cover the Premises, inclusive of sidewalks and parking facilities;
and (ii) Fire and Extended Coverage Insurance on Tenant's property, insuring
against damage by fire, and such other risks and hazards as are insurable under
present and future standard forms of fire and extended coverage insurance
policies, to Tenant's property for the full insurable value thereof, protecting
Tenant as insured and Landlord as additional insured.
(b) Said insurance is to be written in form and substance satisfactory
to Landlord by a good and solvent insurance company of recognized standing,
admitted to do business in the State of New York, which shall be reasonably
satisfactory to Landlord. Tenant shall procure, maintain and place such
insurance and pay all premiums and charges therefor and upon failure to do so
Landlord may, but shall not be obligated to, procure, maintain and place such
insurance or make such payments, and in such event the Tenant agrees to pay the
amount thereof, plus interest at the maximum rate permitted by law, to Landlord
on demand and said sum shall be in each instance collectible as additional rent
on the first day of the month following the date of payment by Landlord. Tenant
shall cause to be included in all such insurance policies a provision to the
effect that the same will be non-cancelable except upon twenty (20) days written
notice to landlord. At least ten (10) days prior to Tenant's occupancy of the
Premises, the original insurance policies or appropriate certificates shall be
deposited with landlord. Any renewals, replacements or endorsements thereto
shall also be deposited with Landlord to the end that said insurance shall be in
full force and effect during the Term.
(c) Each party agrees to use its best efforts to include in each of its
insurance policies (insuring the Building and Landlord's property , in the case
of Landlord, and insuring Tenant's property, in the case of Tenant, against
loss, damage or destruction by fire or casualty) a waiver of the insurer's right
of subrogation against the other party, or if such waiver should be unobtainable
or unenforceable (i) an express agreement that such policy shall not be
invalidated if the insured waives or has waived before the casualty, the right
of recovery against any party responsible for a casualty covered by the policy,
or (ii) any other form of permission for the release of the other party, or
(iii) the inclusion of the other party as an additional insured, but not a party
to whom any loss shall be payable. If such waiver, agreement or permission shall
not be, or shall cease to be, obtainable without additional charge or at all,
the insured party shall so notify the other party promptly after learning
thereof. In such case, if the other party shall agree in writing to pay the
insurer's additional charge therefor, such waiver, agreement or permission shall
be included in the policy, or the other party shall be named as an additional
insured in the policy, but not a party to whom any loss shall be payable. Each
such policy which shall so name a party hereto as an additional insured shall
contain, if obtainable, agreements by the insurer that the policy will not be
cancelled without at least twenty (20) days prior notice to both insureds and
that the act or omission of one insured will not invalidate the policy as to the
other insured.
(d) As long as Landlord's fire insurance policies then in force include
the waiver of subrogation or agreement or permission to release liability
referred to in Subsection (c) or name the tenant as an additional insured,
Landlord hereby waives (i) any obligation on the part of Tenant to make repairs
to the Premises necessitated or occasioned by fire or other casualty that is an
insured risk under such policies, and (ii) any right
of recovery against Tenant, any other permitted occupant of the Premises, and
any of their servants, employees, agents or contractors, for any loss occasioned
by fire or other casualty that is an insured risk under such policies. In the
event that at anytime Landlord's fire insurance carriers shall not include such
or similar provisions in Landlord's fire insurance policies, the waivers set
forth in the foregoing sentence shall be deemed of no further force or effect.
(e) As long as Tenant's fire insurance policies then in force include
the waiver or subrogation or agreement or permission to release liability
referred to in Subsection (c), or name the Landlord as an additional insured,
Tenant hereby waives (and agrees to cause any other permitted occupants of the
Premises to execute and deliver to Landlord written instruments waiving) any
right of recovery against Landlord, any other tenants or occupants of the
Building, and any servants, employees, agents or contractors of Landlord or of
any such other tenants or occupants for any; loss occasioned by fire or other
casualty which is an insured risk under such policies. In the event that at any
time Tenant's fire insurance carriers shall not include such or similar
provisions in Tenant's fire insurance policies, the waiver set forth in the
foregoing sentence shall, upon notice given by Tenant to Landlord, be deemed of
no further force or effect with respect to any insured risks under such policy
from and after the giving of such notice. During any period while the foregoing
waiver of right of recovery is in effect, Tenant, or any other permitted
occupant of the Premises, as the case may be, shall look solely to the proceeds
of such policies to compensate Tenant or such other permitted occupant for any
loss occasioned by fire or other casualty which is an insured risk under such
policies.
(f) Tenant shall reimburse Landlord, as additional rent, for one
hundred (100%) percent of all premiums payable by Landlord for fire insurance
upon the Building, including extended coverage, rental value, vandalism and
malicious mischief, to be maintained upon the Building during the Term of this
lease. The aforesaid charge shall be due and payable to Landlord as additional
rent on the Rent date next following the giving of notice to Tenant by Landlord
of the amount due for such premium. The parties shall apportion such premium at
the commencement and termination of the lease Term.
DAMAGE OR DESTRUCTION
13. (a) If the Building or the Premises or any part thereof shall be
damaged by fire or other casualty and Tenant gives prompt notice thereof to
Landlord, Landlord shall proceed with reasonable diligence to repair or cause to
be repaired such damage. The minimum annual rent shall be abated to the extent
that the Premises shall have been rendered untenantable, such abatement to be
from the date of such damage or destruction to the date the Premises shall be
substantially repaired or rebuilt, in proportion which the area of the part of
the Premises so rendered untenantable bears to the total area of the Premises.
(b) If the Premises shall be totally damaged or rendered wholly
untenantable by fire or other casualty, and Landlord has not terminated this
lease pursuant to Subsection (c) and Landlord has not completed making of the
required repairs and restored and rebuilt the Premises an/or access thereto
within twelve (12)
months from the date of such damage or destruction, and such additional time
after such date (but in no event to exceed six (6) months) as shall equal the
aggregate period Landlord may have been delayed in doing so by unavoidable
delays or adjustment of insurance, Tenant may serve notice on Landlord of its
intention to terminate this lease, and, if within thirty (30) days thereafter
Landlord shall not have completed the making of the required repairs and
restored and rebuilt the Premises, this lease shall terminate on the expiration
of such thirty (30) day period as if such termination date were the Expiration
Date, and the Rent shall be apportioned as of such date any prepaid portion of
Rent for any period after such date shall be refunded by Landlord to Tenant.
(c) If the Premises shall be totally damaged or rendered wholly
untenable by fire or other casualty or if the Building shall be so damaged by
fire or other casualty that substantial alteration or reconstruction of the
Building shall, in Landlord's opinion, be required (whether or not the Premises
shall have been damaged by such fire or other casualty), then in any of such
events Landlord may, at its option, terminate this lease and the Term and estate
hereby granted, by giving Tenant thirty (30) days notice of such termination
within ninety (90) days after the date of such damage. In the event that such
notice of termination shall be given, this lease and the Term and estate hereby
granted, shall terminate as of the date provided in such notice of termination
(whether or not the Term shall have commenced) with the same effect as if that
were the Expiration Date, and the Rent shall be apportioned as of such date or
sooner termination and any prepaid portion of minimum annual rent or additional
rent for any period after such date shall be refunded by Landlord to Tenant.
(d) Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
by fire or other casualty or the repair thereof. Landlord will not carry
insurance of any kind on Tenant's property, and Landlord shall not be obligated
to repair any damage thereto or replace the same.
(e) This lease shall be considered an express agreement governing any
case of damage to or destruction of the Building or any part thereof by fire or
other casualty, and Section 227 of the Real Property Law of the State of New
York providing for such a contingency in the absence of such express agreement,
and any other law of like import now or hereafter enacted, shall have no
application in such case.
SUBORDINATION
14. This lease shall be subject and subordinate at all times to the
lien of any mortgages (i) now encumbering the Building or the Premises and to
all advances made or hereafter to be made upon the security thereof, and (ii)
hereafter made provided same are made to a lending institution. Tenant shall
execute and deliver such further instrument or instruments subordinating this
lease to the lien of any such mortgage or mortgages as shall be desired by any
mortgagee or proposed mortgagee and Tenant hereby appoints Landlord the
attorney-in-fact of Tenant, irrevocably, to execute and deliver any such
instrument or instruments for the
Tenant. As used in this lease, the term "lending institution" shall mean savings
bank, savings and loan association, bank or trust company, real estates
investment trust, investment bank or an affiliate thereof, insurance company,
university, public or private, or employee, welfare, pension or retirement fund
or system.
(b) Upon demand, Tenant shall furnish to Landlord certified balance
sheets and operating statements for the past five (5) years and such other
information, financial or otherwise, concerning Tenant which may reasonably be
required by any prospective mortgagee.
(c) Tenant shall, upon not less than five (5) days' prior request by
Landlord, execute, acknowledge and deliver to Landlord a statement in writing
certifying (i) that the lease is unmodified and in full force and effect (or if
there have been modifications that the same are in full force and effect as
modified and identifying the modifications), (ii) the dates to which the Rent
and other charges have been paid, and (iii) that so far as the person making the
certificate knows, Landlord is not in default under any provision of this lease.
It is intended that any such statement may be relied upon by any person
proposing to acquire Landlord's interest in this lease, any prospective
purchaser of the Premises, or any prospective mortgagee, or assignee of any
mortgage upon the Premises.
(d) So long as there is a first mortgage lien encumbering the Premises,
Landlord and Tenant shall not, without first obtaining the written consent of
such mortgagee, enter into any agreement, the effect of which would be to (i)
modify, cancel, terminate or surrender this lease; (ii) grant any concession in
respect thereof; (iii) reduce the Rent or require the prepayment of any rent in
advance of the due date thereof; (iv) create any offsets or claims against Rent;
(v) assign in whole or in part any of the rents therefrom or Tenant's interests
in this lease or sublet the whole or any portion of the Premises except as
provided in this lease.
(e) Tenant shall, within ninety (90) days after the end of each fiscal
year of Tenant, furnish to Landlord and any first mortgagee of the Premises,
copies of balance sheets of Tenant for such fiscal year, certified by a
certified public accountant.
(f) In the event of any act or omission by Landlord which would give
Tenant the right to terminate this lease or to claim a partial or total
eviction, Tenant shall not exercise any such right until (i) it shall have
served written notice, by registered mail, of such act or omission, to Landlord
and to the holder of any mortgage whose name and address shall have been
furnished to Tenant in writing, at the last address so furnished, and (ii) a
reasonable period of time for remedying such act or omission shall have elapsed
following the serving of such notice; provided, however, that following the
serving of such notice, Landlord or said holder shall, with reasonable
diligence, have commenced and continued to remedy such act or omission or to
cause the same to be remedied.
INDEMNIFICATION
15. Tenant shall indemnify, defend, save and hold Landlord harmless
from and against any and all liability and damages and any and all injury, loss,
claim, damage or suite of every kind and nature, including Landlord's reasonable
counsel fees, to any person, firm, association or corporation or to any
property, arising
out of or based upon, related to, or in any way connected with, the use or
occupancy of the Premises or the conduct or operation of Tenant's business
unless such injury, loss, claim or damage is attributable solely to the
negligence of Landlord or its agents, servants or employees.
EMINENT DOMAIN
16. (a) If the whole of the Premises be taken under the power of
eminent domain for any public or quasi-public improvement or use, the term of
this lease shall expire as of the date of vesting of title in the condemning
authority.
(b) If 25% or more of the Building is taken under the power of eminent
domain or for any public or quasi-public purpose, Landlord shall have the option
of cancelling and terminating this lease by written notice served within sixty
(60) days after the taking, and this lease shall thereupon expire on the 90th
day after the serving by Landlord of said notice.
(c) If less than 25% of the Building is taken, this lease shall remain
in full force and effect, however, minimum annual rent shall be reduced in
proportion to the percentage of square feet of the Building so taken. If
Tenant's parking area only is taken, then (i) if 25% or less is taken, this
lease shall not terminate but minimum annual rent only shall be apportioned pro
rata in accordance with the size and usefulness of the portion taken, unless
Landlord provides substitute parking for Tenant within reasonable walking
distance of the Premises, substantially equal in size to that which was taken,
within sixty (60) days after the taking; or (ii) if more than 25% is taken,
then, unless Landlord provides substitute parking, substantially equal in size
to that which was taken, and within reasonable walking distance of the Premises,
within sixty (60) days after the taking, this lease shall, at the option of
either Landlord or Tenant, by written notice served between the 61st and 90th
day after the taking, be canceled and terminated effective (60) days from the
date of said taking and if such notice is not served, this lease shall not
terminate but minimal annual rent only shall be apportioned pro rata in
accordance with the size and usefulness of the portion taken.
(d) If this lease is not terminated or terminable under the provisions
of this Article 16, Landlord shall, with reasonable dispatch and at Landlord's
sole cost and expense, restore, reconstruct and rebuild the remaining portion of
the Premises and the Building and all the appurtenances, equipment, utilities,
facilities and installations to their condition prior to such taking, in such
manner that the resulting building and parking area and driveways; shall be a
complete and integrated structural, architectural and functional unit similar to
and of equal material and workmanship to the Building and parking area and
driveways prior to such taking, with all the appurtenances, equipment,
utilities, facilities and installations throughout in good working order so as
to put both the parking area and driveways and the Premises in proper condition
to be used by Tenant for the same purpose as at the time of such taking, all in
accordance with plans and specifications to be prepared by Landlord, at the sole
cost and expense of Landlord.
(e) If the nature of the work to be performed as a result of the taking
is such as to prevent the operation of the business then being conducted
thereon, or to make it impractical so to do, then the Rent and
other charges to be paid by Tenant under this lease shall xxxxx until
substantial completion of such work by Landlord.
(f) If in the event of any taking under the power of eminent domain,
Landlord shall be entitled to and shall receive the entire award, except that
Tenant shall be entitled to and shall receive any part of any award made for
Tenant's cost of moving Tenant's trade fixtures (provided same does not reduce
the amount of Landlord's award).
(g) In the event of any dispute under the provisions of this Article
16, it shall be resolved by arbitration in Suffolk County, New York before three
disinterested and impartial arbitrators, in accordance with the rules of the
American Arbitration Association. Each arbitrator shall have a minimum of then
(10) years experience in dealing with, renting or appraising industrial real
estate. All fees and expenses of the arbitrators and the American Arbitration
Association shall be borne equally by the parties.
RIGHT TO SUBLET OR ASSIGN
17. (a) Tenant covenants that it shall not assign this lease nor sublet
the Demised Premises or any part thereof by operation of law or otherwise,
including, without limitation, an assignment or subletting as defined in (d)
below, without the prior written consent of Landlord in each instance, except on
the conditions hereinafter stated. Tenant may assign this lease or sublet all or
a portion of the Demised Premises with Landlord's written consent, provided:
(i) That such assignment or sublease is for a use which
is in compliance with this lease and the then existing zoning regulations and
the Certificate of Occupancy;
(ii) That, at the time of such assignment or subletting,
there is no default under the terms of this lease on the Tenant's part;
(iii) That, in the event of an assignment, the assignee
shall assume in writing the performance of all of the terms and obligations of
the within lease;
(iv) That a duplicate original of said assignment or sublease
shall be delivered by certified mail to the Landlord at the address herein set
forth within ten (10) days from the said assignment or sublease and within
ninety (90) days of the date that Tenant first advises Landlord of the name and
address of the proposed subtenant or assignee, as required pursuant to
subparagraph (b) hereof;
(v) Such assignment or subletting shall not, however, release
the within Tenant or any successor tenant or any guarantor from their liability
for the full and faithful performance of all of the terms and conditions of this
lease;
(vi) If this lease be assigned, or if the Demised Premises or
any part thereof be underlet or occupied by anybody other than Tenant, Landlord
may after default by Tenant collect rent from the assignee, undertenant or
occupant, and apply the net amount collected to the rent herein reserved; and
(vii) That, in the event Tenant shall request Landlord's
consent to a proposed assignment of this lease or proposed sublease of all or a
portion of the Demised Premises, Tenant shall pay or reimburse to Landlord the
reasonable attorney fees incurred by Landlord in processing such request.
(b) Notwithstanding anything contained in this Article 17 to the
contrary, no assignment or underletting shall be made by Tenant in any event
until Tenant has offered to terminate this lease as of the last day of any
calendar month during the Term hereof and to vacate and surrender the Demised
Premises to Landlord on the date fixed in the notice served by Tenant upon
Landlord (which date shall be prior to the date of such proposed assignment or
the commencement date of such proposed lease). Simultaneously with said offer to
terminate this lease, Tenant shall advise the Landlord, in writing, of the name
and address of the proposed assignee or subtenant, a reasonably detailed
statement of the proposed subtenant/assignee's business, reasonably detailed
financial references, and all the terms, covenants, and conditions of the
proposed sublease or assignment.
(c) Tenant may, without the consent of Landlord, assign this lease to
an affiliated (i.e., a corporation 20% or more of whose capital stock is owned
by the same stockholders owning 20% or more of Tenant's capital stock), a parent
or subsidiary corporation of Tenant or to a corporation to which it sells or
assigns all or substantially all of its assets or stock or with which it may be
consolidated or merged, provided such purchasing, consolidated, merged,
affiliated or subsidiary corporation shall, in writing, assume and agree to
perform all of the obligations of Tenant under this lease and it shall deliver
such assumption with a copy of such assignment to Landlord within ten (10) days
thereafter, and provided further than Tenant shall not be released to discharged
from any liability under this lease by reason of such assignment.
(d) For purposes of this Article 17, (i) the transfer of a majority of
the issued and outstanding capital stock of any corporate tenant, or of a
corporate subtenant, or the transfer of a majority of the total interest in any
partnership tenant or subtenant, however accomplished, whether in a single
transaction or in a series of related or unrelated transactions, shall be deemed
an assignment of this lease, or of such sublease, as the case may be; (ii) any
person or legal representative of Tenant, to whom Tenant's interest under this
lease passes by operation of law or otherwise, shall be bound by the provisions
of this Article 17; and (iii) a modification or amendment of a sublease shall be
deemed a sublease.
(e) Whenever Tenant shall claim under this Article or any other part of
this lease that Landlord has unreasonably withheld or delayed its consent to
some request of Tenant, Tenant shall have no claim for damages by reason of such
alleged withholding or delay, and Tenant's sole remedy thereof shall be a right
to obtain specific performance or injunction but in no event with recovery of
damages.
(f) Tenant shall not mortgage, pledge, hypothecate or otherwise
encumber its interest under this lease without Landlord's prior written consent.
(g) Notwithstanding anything contained in this Article 17 to the
contrary, no assignment or underletting shall be made by Tenant to any brokerage
firm.
RIGHT TO INSPECT; POSTING SIGNS
18. (a) Tenant shall permit Landlord or Landlord's agents to enter the
Premises at all reasonable hours for the purpose of (i) inspecting the same;
(ii) making repairs required by the terms of this lease to be made by Tenant and
which Tenant neglects or refuses to make; (iii) exhibiting the Premises to
prospective purchasers and mortgagees; (iv) during the twelve (12) months
preceding the expiration of this lease, exhibiting the Premises to brokers and
prospective tenants; and (v) for the purpose of making any additions or
alterations to the Building or to any surrounding building provided, in each and
every case, Landlord shall use its reasonable effort not to unreasonably
interfere with the conduct of Tenant's business at the Premises. If, at
reasonable hours, admission to the Premises for the aforesaid purposes cannot be
obtained or, if at any time entry shall be deemed necessary for the inspection
or protection of the Premises or for making any repairs, whether for the benefit
of Tenant or not, Landlord or Landlord's agents may enter the Premises by any
lawful means without rendering Landlord or its agents liable to Tenant for
damages by reason thereof.
(b) During the twelve (12) months preceding the end of the term,
Landlord may post and maintain, without hindrance or molestation, signs or
notices indicating that the Premises are for sale and/or for rent; however, no
such sign shall be affixed to a door or window of the premises.
BANKRUPTCY
19. (a) If, at any time prior to the commencement of the term of this
lease, or if at any time during the term, there shall be filed by or against
Tenant in any court, pursuant to any statute, either of the United States of any
State, a petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of all or a portion of Tenant's property,
and within thirty (30) days thereof Tenant fails to secure a discharge thereof,
or if Tenant makes an assignment for the benefit of creditors or petition for or
enters into an arrangement, this lease at the option; of Landlord, exercised
within a reasonable time after notice of the happening of any one or more of
such events, may be canceled and terminated, in which event neither Tenant nor
any person claiming through or under Tenant by virtue of any statute or of any
order of any court, shall be entitled to possession or to remain in possession
of the Premises but shall forthwith quit and surrender the Premises, and
Landlord, in addition to any other rights, may retain any rent, security deposit
or monies received by it from Tenant or others in behalf of Tenant as partial
liquidated damages.
(b) In the event of the termination of this lease pursuant to paragraph
(a) of this Article 19, Landlord shall forthwith, notwithstanding any other
provision 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 and the then fair and
reasonable rental value of the 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 Premises for the period for which such installment was payable shall be
discounted to the date of termination
at the rate of 4% per annum. If the Premises, or any part thereof, be relet by
Landlord for the unexpired term of this lease, the amount of rent reserved upon
such reletting shall prima facie be the fair and reasonable rental value for the
part or the whole of the Premises so relet during the term of the reletting.
Nothing herein contained shall limit or prejudice the right of Landlord to prove
for and obtain as liquidated damages by reason of such termination an amount
equal to the maximum allowed by any statute or rule of law, in effect at the
time when, and governing the proceeding in which, such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
DEFAULT
20. (a) If Tenant shall fail to pay any installment of minimum annual
rent or any additional rent or other charges within five (5) days of the day on
which same are required to be paid hereunder, or if Tenant defaults in
fulfilling any of the other covenants of this lease and such default shall
continue for a period of ten (10) days after notice, or if Tenant shall dissolve
or liquidate or commence to dissolve or liquidate, or if the Premises become
vacant or deserted, or if the said default or omission complained of shall be
such 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 during
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,
then, in any one or more of such events, Landlord may serve a written three (3)
day notice of cancellation of this lease upon Tenant, and upon the expiration of
said three (3) days, this lease and the term thereunder shall end and expire as
fully and completely as if the date of expiration of such three (3) day period
were the day herein definitely fixed for the end and expiration of this lease,
and the term thereof, and Tenant shall then quit and surrender the Premises to
Landlord butTenant shall remain liable as hereinafter provided. If Tenant shall
default (i) in the timely payment of any item of Rent, and such default shall
continue or be repeated for two consecutive months for a total of four months in
any period of twelve months, or (ii) in the performance of any particular term,
condition or covenant of this lease more than six times in any period of twelve
months, then, notwithstanding that such defaults shall have each been cured
within the period after notice, if any, as provided in this lease, any further
similar default shall be deemed to be deliberate and Landlord thereafter may
serve a written ten (10) day notice of termination of this lease to Tenant
without affording Tenant an opportunity to cure such further default.
(b) If (i) the notice provided for in paragraph (a) above shall have
been given and the term shall expire as aforesaid, or (ii) if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the Premises or any part thereof shall be taken or occupied or attempted to be
taken or occupied by someone other than Tenant, or (iii) if Tenant shall make
default with respect to any other lease between Landlord and Tenant, or (iv) if
Tenant shall fail to move into or take possession of the Premises within fifteen
(15) days after the Premises are substantially complete, then, and in any of
such events Landlord may, without notice, re-enter the Premises either by force
or by any lawful means, and dispossess Tenant (or the
legal representative of Tenant or other occupant of the Premises) by summary
proceedings or otherwise and remove their effects and hold the Premises as if
this lease had not been made, and Tenant hereby waives the service of notice of
intention to re-enter or to institute legal proceedings to that end. If Tenant
shall be in default hereunder prior to the date fixed as the commencement of any
renewal or extension of this lease, Landlord may cancel and terminate such
renewal or extension agreement by written notice.
REMEDIES OF LANDLORD
21. (a) If this lease is terminated or if Landlord re-enters the
Premises under Article 20 or any other such default provision contained herein,
Tenant shall pay to Landlord as damages, at the election of Landlord, sums equal
to the minimum annual rent and additional rent that would have been payable by
Tenant through and including the Expiration date had this lease not terminated
or had Landlord not re-entered the Premises, payable upon the due dates therefor
specified in this lease; provided, that if Landlord shall relet all or any part
of the Premises for all or any part of the period commencing on the day
following the date of such termination or re-entry to and including the
Expiration date, Landlord shall credit Tenant with the net rents received by
Landlord from such reletting, such net rents to be determined by first deducting
from the gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this lease and of
re-entering the Premises and of securing possession thereof, as well as the
expenses of reletting, including, without limitation, altering and preparing the
Premises for new tenants, brokers' commissions, and all other expenses properly
chargeable against the Premises and the rental therefrom in connection with such
reletting, it being understood that any such reletting may; be for a period
equal to or shorter or longer than said period; provided, further, that (i) in
no event shall Tenant be entitled to receive any excess of such net rents over
the sums payable by Tenant to Landlord under this lease, (ii) in no event shall
Tenant be entitled, in any suit for the collection of damages pursuant to this
Article 21(a), to a credit in respect of any net rents from a reletting except
to the extent that such net rents are actually received by Landlord prior to the
commencement of such suit, and (iii) Landlord shall have not obligation to so
relet the Premises and Tenant hereby waives any right Tenant may have, at law or
in equity, to require Landlord to so relet the Premises.
At any time after the Demised Term shall have expired and come to an
end or Landlord shall have re-entered upon the premises, as the case may be,
whether or not Landlord shall have collected any monthly deficiencies as
provided below, Landlord shall be entitled to recover from Tenant, and Tenant
shall pay to Landlord, on demand, as and for liquidated and agreed final
damages, a sum equal to the amount by which the minimum annual rent and
additional rent reserved in this lease for the period which otherwise would have
constituted the unexpired portion of the Demised Term exceeds the then fair and
reasonable rental value of the Premises for the same period, both discounted to
present worth at the rate of four (4%) percent per annum. If, before
presentation of proof of such liquidated damages to any court, commission, or
tribunal, the Premises,
or any part thereof, shall have been relet by Landlord for the period which
otherwise would have constituted the unexpired portion of the Demised Term, or
any part thereof, the amount of Rent reserved upon such reletting shall be
deemed, prima facie, to be the fair and reasonable rental value for the part or
the whole of the Premises so relet during the term of the reletting.
Suit or suits for the recovery of any damages payable hereunder by
Tenant or any installments thereof, may be brought by Landlord from time to time
at its election, and nothing contained herein shall require Landlord to postpone
suit until the date when the Term would have expired but for such termination or
re- entry. In all cases hereunder, and in any suit, action or proceeding of any
kind between the parties, it shall be presumptive evidence of the fact of the
existence of a charge being due, if Landlord shall produce a xxxx, notice or
certificate of any public official entitled to give such xxxx, notice or
certificate to the effect that such charge appears of record on the books in his
or her office and has not been paid.
(b) Nothing contained in this lease shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any sums or damages to
which, in ddition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part of Tenant.
Anything in this lease to the contrary notwithstanding, during the continuation
of any default by Tenant, Tenant shall not be entitled to exercise any rights or
options, or to receive any funds or proceeds being held, under or pursuant to
this lease.
(c) The specified remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled, and Landlord may invoke
any remedy allowed at law or in equity as if specific remedies were not herein
provided for.
ATTORNEY'S FEES
22. If Tenant shall at any time be in default hereunder, and if
Landlord shall institute an action or summary proceeding against Tenant based
upon such default and Landlord shall be successful, or if Landlord shall
otherwise engage an attorney in connection with the enforcement of any provision
of this lease, then Tenant shall reimburse Landlord for the reasonable expenses
of attorney's fees and disbursements incurred by Landlord. The amount of such
expenses shall be deemed to be "additional rent" hereunder and shall be due from
Tenant to Landlord on the first day of the month following the incurring of such
expenses.
WAIVER OR REDEMPTION, COUNTERCLAIM, TRIAL BY JURY
23. Tenant hereby expressly (i) waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause or in the event of Landlord obtaining
possession of the Premises by reason of the violation by Tenant of any of the
covenants
and conditions of this lease or otherwise; (ii) waives all rights to stay
summary proceedings; and (iii) agrees that it shall not interpose any
counterclaim in any summary proceeding or any action based on non-payment of
Rent or any other payments or charges required to be made by Tenant to Landlord.
Landlord and Tenant hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of them against the other with respect to any
matters arising out of or connected with this lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the premises, and/or any claim
of injury or damage and any emergency statutory or any other statutory remedy.
NO WAIVER
24. 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 the
Premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the Premises prior to the termination
of this lease. The delivery of keys to any employee of Landlord or of Landlord's
agents shall not operate as a termination of this lease or a surrender of the
premises. 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 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. No provision of this lease
shall be deemed to have been waived by Landlord unless such waiver be in writing
signed by Landlord. The words "re-enter" and "re-entry" as used herein are not
restricted to their technical legal meaning.
END OF TERM
25. (a) On the last day of the term hereof or on the earlier
termination thereof, Tenant shall peaceably and quietly leave, surrender and
deliver the Premises up to Landlord, broom clean, together with any and all
alterations, changes, additions, and improvements which may have been made upon
the Premises (except movable furniture or movable trade fixtures installed at
the expense of Tenant) in good repair and good order and safe condition, except
for reasonable wear and tear and damage by; fire, other insured casualty or the
elements excepted, and Tenant shall remove all of its personal property from the
Premises and any property not so removed shall be deemed to have been abandoned
and may be appropriated, sold, stored, destroyed or otherwise disposed of by
Landlord without notice to Tenant and without obligations to account therefor.
Tenant's obligation under this Article 25 shall survive the expiration or other
termination of this lease.
(b) In the event of any holding over by Tenant after the expiration or
termination of this lease without the consent of Landlord, Tenant shall:
(i) pay as holdover rental for each month of the holdover
tenancy an amount equal to the
greater of (y) the fair market rental value of the Premises for such month (as
reasonably determined by Landlord) or (z) two hundred (200%) percent of the
minimum annual rent payable by Tenant for the third month prior to the
Expiration Date of the term of this lease, and otherwise observe, fulfill and
perform all of its obligations under this lease, including but not limited to,
those pertaining to additional rent, in accordance with its terms;
(ii) be liable to Landlord for any payment or rent concession
which Landlord may be required to make to any tenant in order to induce such
tenant not to terminate an executed lease covering all or any portion of the
Premises by reason of the holdover by Tenant; and
(iii) be liable to Landlord for any damages suffered by
Landlord as the result of Tenant's failure to surrender the Premises.
No holding over by Tenant after the Term shall operate to extend the
Term.
The holdover, with respect to all or any part of the Premises, of a
person deriving an interest in the Premises from or through Tenant, including,
but not limited to, an assignee or subtenant, shall be deemed a holdover by
Tenant.
Notwithstanding anything in this Article contained to the contrary, the
acceptance of any Rent paid by Tenant pursuant to this Paragraph 25 (b), shall
not preclude Landlord from commencing and prosecuting a holdover or eviction
action or proceeding or any action or proceeding in the nature thereof. The
preceding sentence shall be deemed to be an "agreement expressly providing
otherwise" within the meaning of Section 232-c of the Real Property Law of the
State of New York and any successor law of like import.
(c) If at any time during the last month of the term of this lease
Tenant shall have removed all or substantially all of Tenant's property from the
Premises, Landlord may, and Tenant hereby irrevocably grants to Landlord a
license to, immediately enter and alter, renovate and redecorate the Premises,
without elimination, diminution or abatement of minimum annual rent or
additional rent, or incurring liability to Tenant for any compensation, and such
acts shall have no effect upon this lease.
BROKER
26. Tenant represents that this lease was brought about by X. Xxxxxxx
Associates LLC as broker and all negotiations with respect to this lease were
conducted exclusively through said broker. Tenant agrees that if any claim is
made for commissions by any broker other than said broker, by, through or on
account of any acts of Tenant, Tenant will hold Landlord free and harmless from
any and all liabilities and expenses in connection therewith, including
Landlord's reasonable attorney's fees.
QUIET ENJOYMENT
27. Landlord covenants that if and so long as Tenant pays the minimum
annual rent and
additional rent and other charges reserved by this lease, and performs all the
terms, covenants and conditions of this lease on the part of Tenant to be
performed, Tenant shall quietly enjoy the premises subject, however, to the
terms of this lease and of any mortgage or mortgages to which this lease by its
terms is subject.
NONLIABILITY OF LANDLORD
28. (a) Landlord and Landlord's agents and employees shall not be
liable for, and Tenant waives all claims for, loss or damage to Tenant's
business or damage to person or property sustained by Tenant resulting from any
accident or occurrence (unless caused by or resulting from the negligence of
Landlord, its agents, servants or employees other than accidents or occurrences
against which Tenant is insured) in or upon the Premises or the Building,
including, but not limited to, claims for damage resulting from: (i) any
equipment or appurtenances becoming out of repair; (ii) injury done or
occasioned by wind; (iii) any defect in or failure of plumbing, heating or air
conditioning equipment, electric wiring or installation thereof, gas, water, or
steam pipes, stairs, porches, railings or walks; (iv) broken glass; (v) the
backing up of any sewer pipe or downspout; (vi) the bursting, leaking or running
of any tank, tub, washstand, water closet, waste pipe, drain or other pipe or
tank in, upon or about the Building or the Premises; (vii) the escape of steam
or hot water; (viii) water, snow or ice being upon or coming through the roof,
skylight, trapdoor, stairs, doorways, windows, walks or any other place upon or
near the Building or the Premises or otherwise; (ix) the falling of any fixture,
plaster, tile or stucco; and (x) any act, omission or negligence of other
tenants, licensees or of any other persons or occupants of the Building or of
adjoining or contiguous buildings or of owners of adjacent or contiguous
property.
(b) If Landlord or a successor in interest is an individual
(which term as used herein includes aggregates of individuals such as joint
ventures, general or limited partnerships, or associations), such individual
shall be under no personal liability with respect to its obligations under this
lease, Tenant shall look solely to the equity of such individual in the land and
building constituting the Premises for the satisfaction of Tenant's remedies,
and in no event shall Tenant attempt to secure any personal judgement against
any such individual or any principal, partner, employee or agent of Landlord by
reason of such default by Landlord.
(c) The word "Landlord" as used herein means only the owner in
fee for the time being of the Premises, and in the event of any sale of the
Premises, Landlord shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder and it shall be deemed and
construed without further agreement between the parties or between the parties
and the purchaser of the Premises, that such purchaser has assumed and agreed to
carry out any and all covenants and obligations of Landlord hereunder.
NO ABATEMENT
29. No diminution or abatement of Rent or other compensation shall be
claimed or allowed for inconvenience or discomfort arising from the Landlord's
making of additions, repairs or improvements to the Building or to its equipment
and fixtures, nor for any space taken to comply with any law, ordinance or order
of a governmental authority except as specifically provided in this lease.
APPLICABLE LAW AND CONSTRUCTION
30. The laws of the State of New York shall govern the validity,
performance and enforcement of this lease. The invalidity or unenforceability of
any provision of this lease shall not affect or impair any other provision. The
submission of this document to Tenant for examination does not constitute an
offer to lease, or a reservation of or option to lease, and becomes effective
only upon execution and delivery thereof by Landlord and Tenant. All
negotiations, considerations, representations and understandings between the
parties are incorporated in this lease. Landlord or Landlord's agents have made
no representations or promises with respect to the Building or the Premises
except as herein expressly set forth. The headings of the several articles and
sections contained herein are for convenience only and do not define, limit or
construe the contents of such articles or sections. Whenever herein the singular
number is used, the same shall include the plural, and the neuter gender shall
include the masculine and feminine genders. Neither this lease nor any provision
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
CONSTRUCTION ON ADJACENT PREMISES OR BUILDINGS
31. If any construction is in progress at, on or about the Building or
any excavation or other building operation shall be about to be made or shall be
made on any premises adjoining or above or below the Premises or on any portion
of the Building, Tenant shall permit Landlord or the adjoining owner or tenant
and their respective agents, employees, licensees and contractors, to enter the
Premises and to shore the foundations and/or walls thereof and to erect
scaffolding and/or protective barricades around and about the Premises (but not
so as to preclude entry thereto) and to do any act or thing necessary for the
safety or preservation of the Premises. Tenant's obligations under this lease
shall not be affected by any such construction or excavation work, shoring-up,
scaffolding or barricading. Landlord shall not be liable in any such case for
any inconvenience, disturbance, loss of business or any other annoyance arising
from such construction, excavation, shoring-up, scaffolding or barricades, but
Landlord shall use its best efforts so that such work will cause as little
inconvenience, annoyance or disturbance to Tenant as possible consistent with
accepted construction practice in the vicinity and so that such work shall be
expeditiously completed.
UTILITY EASEMENT
32. This lease is subject and subordinate to any utility, gas, water,
electric, or telephone line easements, now or hereafter granted, affecting the
Premises, the Building, or the land upon which they are located, provided that
the same do not unreasonably interfere with the Building nor unreasonably
interfere with the use of the Premises by Tenant.
NOTICES
33. All notices to be given hereunder shall be in writing and given by
hand delivery or by certified or registered mail addressed to either of the
parties at the address hereinabove given or at any other subsequent mailing
address they may indicate by written notice. Any notice given hereunder by mail
shall be deemed delivered when deposited in a United States general or branch
post office, addressed as above provided. Tenant hereby authorizes and
designates the manger of the Premises as an officer authorized to accept and
receive service of process.
BINDING EFFECT OF LEASE
34. The covenants, agreements and obligations contained in this Lease
shall, except as herein otherwise provided, extend to, bind and inure to the
benefit of the parties hereto and their respective personal representatives,
heirs, successors and permitted assigns. Each covenant, agreement, obligation or
other provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not
dependent on any other provision of this lease unless otherwise expressly
provided.
UNAVOIDABLE DELAYS
35. Whenever Landlord shall be required by the terms of this lease or
otherwise to make any improvements or repairs, to furnish any service, to
perform any construction or reconstruction, or to fulfill in other obligation
hereunder, and Landlord shall be delayed in, or prevented from, so doing,
Landlord shall not be deemed to be in default and this lease and the obligation
of Tenant to pay Rent hereunder and to perform all of the other covenants and
agreements hereunder on the part of Tenant to be performed shall not be
affected, impaired or excused, and any time limit herein fixed for Landlord's
performance thereof shall be extended if and so long as Landlord's
non-performance, delay or default shall be caused by reason of strike or labor
troubles, accidents, any rule, order, regulation or delay of any governmental
agency, or any department or subdivision thereof, governmental pre-emption in
connection with any national emergency or war, insurance claim or adjustment,
the conditions of supply and demand which have been or are affected by war or
other emergency, or any other cause beyond Landlord's reasonable control.
SANITARY SYSTEMS
36. Tenant shall only permit sanitary discharge into the sanitary
system servicing the Premises. Tenant shall comply with all requirements of the
County of Suffolk, Department of Public Works, as they relate to use of the
sanitary system, including the payment of any excess volume charges as
determined by the County of Suffolk.
PARKING
37. Tenant shall have the right to use the parking areas designated for
the Building. The parking
areas available for the use of Tenant herein are to be used by Tenant, its
servants, employees, agents, business invitees and patrons subject to the rules
and regulations of Landlord and it is also understood and agreed that Landlord
shall have the right at any time to modify or alter the parking layout and
traffic pattern in the parking areas and to diminish the available parking areas
without any liability to Tenant or any diminution or abatement of rent or
additional rent. Tenant shall not use nor permit any of its officers, agents or
employees to use any parking spaces in excess of Tenant's allotted number of
spaces therein.
CLEANING, RUBBISH REMOVAL
38. All janitorial work at the Premises shall be done at the cost and
expense of Tenant. Tenant shall provide for its own trash, rubbish and garbage
removal at its own expense and all rubbish, trash and garbage shall be kept at
the Premises subject to the rules and regulations of the appropriate municipal
authorities having jurisdiction thereof, and subject to the reasonable rules and
regulations set by Landlord, and shall at all times be kept in closed containers
reasonably acceptable to Landlord.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day and year first above written.
Landlord: ________________________
By: X. Xxxxxxx
Managing Agent
Tenant: ________________________
By: Xxxxxx X. Xxxxxxxx
Secretary, Treasurer
