A 35 - Lease, Business Premises,
Loft, Office or Store 3-98
THIS LEASE made the day of between 40 MARCUS REALTY ASSOCIATES
hereinafter referred to as LANDLORD, and ELECTROGRAPH SYSTEMS, INC. a domestic
corporation with its principal offices located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxx Xxxx 00000
hereinafter jointly, severally and collectively referred to as TENANT.
WITNESSETH, that the Landlord hereby leases to the Tenant, and the Tenant
hereby hires and takes from the
Landlord
in the building and property known as 00 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx,
(as more particularly set forth on survey annexed hereto as Schedule "A") to be
used and occupied by the Tenant for all uses permitted by the Building Code and
Zoning Regulations of the Town of Smithtown,
and for no other purpose, for a term to commence on June 1, 2002
and to end
on May 31, 2007 unless sooner terminated as hereinafter provided, at the ANNUAL
RENT OF
as set forth in Paragraph 34 of the Rider to this Lease all payable in equal
monthly installments in advance on the first day of each and every calendar
month during said term, except the first installment, which shall be paid upon
the execution hereof.
THE TENANT JOINTLY AND SEVERALLY COVENANTS:
FIRST. - That the Tenant will pay the rent as above provided.
SECOND. - That , throughout said term the Tenant will take good care of
the demised premises, fixtures and appurtenances, and all alterations, additions
and improvements to either; make all repairs in and about the same necessary to
preserve them in good order and condition, which repairs shall be, in quality
and class, equal to the original work; promptly pay the expense of such repairs;
suffer no waste or injury; give prompt notice to the Landlord of any fire that
may occur; execute and comply with all laws, rules, orders, ordinances and
regulations at any time issued or in force (except those requiring structural
alterations), applicable to the demised premises or to the Tenant's occupation
thereof, of the Federal, State and Local Governments, and of each and every
department, bureau and official thereof, and of the New York board of Fire
Underwriters; permit at all times during usual business hours, the Landlord and
representatives of the Landlord to enter the demised premises for the purpose of
inspection, and to exhibit them for purposes of sale or rental; suffer the
Landlord to make repairs and improvements to all parts of the building, and to
comply with all orders and requirements of governmental authority applicable to
said building or to any occupation thereof; suffer the Landlord to erect, use,
maintain, repair and replace pipes and conduits in the demised premises and to
the floor above and below; forever indemnify and save harmless the Landlord for
and against any and all liability, penalties, damages, expenses and judgments
arising from injury during said term to person or property of any nature,
occasioned wholly or in part by any act or acts, omission or omissions of the
Tenant, or of the employees, guests, agents, assigns or undertenants of the
Tenant and also for any matter or thing growing out of the occupation of the
demised premises or of the streets, sidewalks or vaults adjacent thereto;
permit, during the six months next prior to the expiration of the term the usual
notice "To Let" to be placed and to remain unmolested in a conspicuous place
upon the exterior of the demised premises; repair, at or before the end of the
term, all injury done by the installation or removal of furniture and property;
and at the end of the term, to quit and surrender the demised premises with all
alterations, additions and improvements in good order and condition.
THIRD. - That the Tenant will not disfigure or deface any part of the
building, or suffer the same to be done, except so far as may be necessary to
affix such trade fixtures as are herein consented to by the Landlord; the Tenant
will not obstruct, or permit the obstruction of the street or the sidewalk
adjacent thereto; will not do anything, or suffer anything to be done upon the
demised premises which will increase the rate of fire insurance upon the
building or any of its contents, or be liable to cause structural injury to said
building; will not permit the accumulation of waste or refuse matter, and will
not, without the written consent of the Landlord first obtained in each case,
either sell, assign, mortgage or transfer this lease, underlet the demised
premises or any part thereof, permit the same or any part thereof to be occupied
by anybody other than the Tenant and the Tenant's employees, make any
alterations in the demised premises, use the demised premises or any part
thereof for any purpose other than the one first above stipulated, or for any
purpose deemed extra hazardous on account of fire risk, nor in violation of any
law or ordinance. That the Tenant will not obstruct or permit the obstruction of
the light, halls, stairway or entrances to the building, and will not erect or
inscribe any sign, signals or advertisements unless and until the style and
location thereof have been approved by the Landlord; and if any be erected or
inscribed without such approval, the Landlord may remove the same. No water
cooler, air conditioning unit or system or other apparatus shall be installed or
used without the prior written consent of Landlord.
IT IS MUTUALLY COVENANTED AND AGREED, THAT
FOURTH. - If the demised premises shall be partially damaged by fire or
other cause without the fault or neglect of Tenant, Tenant's servants,
employees, agents, visitors or licensees, the damages shall be repaired by and
at the expense of Landlord and the rent until such repairs shall be made shall
be apportioned according to the part of the demised premises which is usable by
Tenant. But if such partial damage is due to the fault or neglect of Tenant,
Tenant's servants, employees, agents, visitors or licensees, without prejudice
to any other rights and remedies of Landlord and without prejudice to the rights
of subrogation of Landlord's insurer, the damages shall be repaired by Landlord
but there shall be no apportionment or abatement of rent. No penalty shall
accrue for reasonable delay which may arise by reason of adjustment of insurance
on the part of Landlord and/or Tenant, and for reasonable delay on account of
"labor troubles", or any other cause beyond Landlord's control. If the demised
premises are totally damaged or are rendered wholly untenantable by fire or
other cause, and if Landlord shall decide not to restore or not to rebuild the
same, or if the building shall be so damaged that Landlord shall decide to
demolish it or to rebuild it, then or in any of such events Landlord may, within
ninety (90) days after such fire or other cause, give Tenant a notice in writing
of such decision, which notice shall be given as in Paragraph Twelve hereof
provided, and thereupon the term of this lease shall expire by lapse of time
upon the third day after such notice is given, and Tenant shall vacate the
demised premises and surrender the same to Landlord. If Tenant shall not be in
default under this lease then, upon the termination of this lease under the
conditions provided for in the sentence immediately preceding, Tenant's
liability for rent shall cease as of the day following the casualty. Tenant
hereby expressly waives the provisions of Section 227 of the Real Property Law
and agrees that the foregoing provisions of this Article shall govern and
control in lieu thereof. If the damage or destruction be due to the fault or
neglect of Tenant the debris shall be removed by, and at the expense of, Tenant.
FIFTH. - If the whole or any part of the premises hereby demised shall
be taken or condemned by any competent authority for any public use or purpose
then the term hereby granted shall cease from the time when possession of the
part so taken shall be required for such public purpose and without
apportionment or award, the Tenant hereby assigning to the Landlord all right
and claim to any such award, the current rent, however, in such case to be
apportioned.
SIXTH. - If, before the commencement of the term, the Tenant be
adjudicated a bankrupt, or make a "general assignment," or take the benefit of
any insolvent act, or if a Receiver or Trustee be appointed for the Tenant's
property, or if this lease or the estate of the Tenant hereunder be transferred
or pass to or devolve upon any other person or corporation, or if the Tenant
shall default in the performance of any agreement by the Tenant contained in any
other lease to the Tenant by the Landlord or by any corporation of which an
officer of the Landlord is a Director, this lease shall thereby, at the option
of the Landlord, be terminated and in that case, neither the Tenant nor anybody
claiming under the Tenant shall be entitled to go into possession of the demised
premises. If after the commencement of the term, any of the events mentioned
above in this subdivision shall occur, or if Tenant shall make default in
fulfilling any of the covenants of this lease, other than the covenants for the
payment of rent or "additional rent" or if the demised premises become vacant or
deserted, the Landlord may give to the Tenant ten days' notice of intention to
end the term of this lease, and thereupon at the expiration of said ten days'
(if said condition which was the basis of said notice shall continue to exist)
the term under this lease shall expire as fully and completely as if that day
were the date herein definitely fixed for the expiration of the term and the
Tenant will then quit and surrender the demised premises to the Landlord, but
the Tenant shall remain liable as hereinafter provided.
If the Tenant shall make default in the payment of the rent reserved
hereunder, or any item of "additional rent" herein mentioned, or any part of
either or in making any other payment herein provided for, or if the notice last
above provided for shall have been given and if the condition which was the
basis of said notice shall exist at the expiration of said ten days' period, the
Landlord may immediately, or at any time thereafter, re-enter the demised
premises and remove all persons and all or any property therefrom, either by
summary dispossess proceedings, or by any suitable action or proceeding at law,
or by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and re-possess and enjoy said premises together with all
additions, alterations and improvements. In any such case or in the event that
this lease be "terminated" before the commencement of the term, as above
provided, the Landlord may either re-let the demised premises or any part or
parts thereof as the agent of the Tenant, and receive the rents therefor,
applying the same first to the payment of such expenses as the Landlord may have
incurred, and then to the fulfillment of the covenants of the Tenant herein, and
the balance, if any, at the expiration of the term first above provided for,
shall be paid to the Tenant. Landlord may rent the premises for a term extending
beyond the term hereby granted without releasing Tenant from any liability. In
the event that the term of this lease shall expire as above in this subdivision
"sixth" provided, or terminate by summary proceedings or otherwise, and if the
Landlord shall not re-let the demised premises for the Landlord's own account,
then, whether or not the premises be re-let, the Tenant shall remain liable for,
and the Tenant hereby agrees to pay to the Landlord, until the time when this
lease would have expired but for such termination or expiration, the equivalent
of the amount of all of the rent and "additional rent" reserved herein, less the
avails of reletting, if any, and the same shall be due and payable by the Tenant
to the Landlord on the several rent days above specified, that is, upon each of
such rent days the Tenant shall pay to the Landlord the amount of deficiency
then existing. The Tenant hereby expressly waives any and all right of
redemption in case the Tenant shall be dispossessed by judgment or warrant of
any court or judge, and the Tenant waives and will waive all right to trial by
jury in any summary proceedings hereafter instituted by the Landlord against the
Tenant in respect to the demised premises. The words "re-enter" and "re-entry"
as used in this lease are not restricted to their technical legal meaning.
In the event of a breach or threatened breach by the Tenant of any of
the covenants or provisions hereof, the Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity, as if
re-entry, summary proceedings and other remedies were not herein provided for.
SEVENTH. - If the Tenant shall make default in the performance of any
covenant herein contained, the Landlord may immediately, or at any time
thereafter, without notice, perform the same for the account of the Tenant. If a
notice of mechanic's line be filed against the demised premises or against
premises of which the demised premises are part, for, or purporting to be fore,
labor or material alleged to have been furnished, or to be furnished to or for
the Tenant at the demised premises, and if the Tenant shall fail to take such
action as shall cause such lien to be discharged within fifteen days after the
filing of such notice, the Landlord may pay the amount of such lien or discharge
the same by deposit or by bonding proceedings, and in the event of such deposit
or bonding proceedings, the Landlord may require the lienor to prosecute an
appropriate action to enforce the lienor's claim. In such case, the Landlord may
pay any judgment recovered on such claim. Any amount paid or expense incurred by
the Landlord as in this subdivision of this lease provided, and any judgment
recovered on such claim. Any amount paid or expense incurred by the Landlord as
in this subdivision of this lease provided, and any amount as to which the
Tenant shall at any time be in default for or in respect to the use of water,
electric current or sprinkler supervisory service, and any expense incurred or
sum of money paid by the Landlord by reason of the failure of the Tenant to
comply with any provision hereof, or in defending any such action, shall be
deemed to be "additional rent" for the demised premises, and shall be due and
payable by the Tenant to the Landlord on the first day of the next following
month, or, at the option of the landlord, on the first day of any succeeding
month. The receipt by the Landlord of any installment of the regular stipulated
rent hereunder or any of said "additional rent" shall not be a waiver of any
other "additional rent" then due.
EIGHTH. - The failure of the Landlord to insist, in any one or more
instances upon a strict performance of any of the covenants of this lease, or to
exercise any option herein contained, shall not be construed as a waiver or a
relinquishment for the future of such covenant or option, but the same shall
continue and remain in full force and effect. The receipt by the Landlord of
rent, with knowledge of the breach of any covenant hereof, shall not be deemed a
waiver of such breach and no waiver by the Landlord of any provision hereof
shall be deemed to have been made unless expressed in writing and signed by the
Landlord. Even though the Landlord shall consent to an assignment hereof no
further assignment shall be made without express consent in writing by the
Landlord.
NINTH. - If this lease be assigned, or if the demised premises or any
part thereof be underlet or occupied by anybody other than the Tenant, the
Landlord may collect rent from the assignee, under-tenant or occupant, and apply
the net amount collected to the rent herein reserved, and no such collection
shall be deemed a waiver of the covenant herein against assignment and
under-letting, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of the Tenant from the further performance by the Tenant of
the covenants herein contained on the part of the Tenant.
TENTH. - This lease shall be subject and subordinate at all times, to
the lien of the mortgages now on the demised premises, and to all advances made
or hereafter to be made upon the security thereof, and subject and subordinate
to the lien of any mortgage or mortgages which at any time may be made a lien
upon the premises. The Tenant will 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. The Tenant
hereby appoints the Landlord the attorney-in-fact of the Tenant, irrevocable, to
execute and deliver any such instrument or instruments for the Tenant.
ELEVENTH. - All improvements made by the Tenant to or upon the demised
premises, except said trade fixtures, shall when made, at once be deemed to be
attached to the freehold, and become the property of the Landlord, and at the
end or other expiration of the term, shall be surrendered to the Landlord in as
good order and condition as they were when installed, reasonable wear and
damages by the elements excepted.
TWELFTH. - Any notice or demand which under the terms of this lease or
under any statute must or may be given or made by the parties hereto shall be in
writing and shall be given or made by mailing the same by certified or
registered mail addressed to the respective parties at the addresses set forth
in this lease.
THIRTEENTH. - The Landlord shall not be liable for any failure of water
supply or electrical current, sprinkler damage, or failure of sprinkler service,
nor for injury or damage to person or property caused by the elements or by
other tenants or persons in said building, or resulting from steam, gas,
electricity, water, rain or snow, which may leak or flow from any part of said
buildings, or from the pipes, appliances or plumbing works of the same, or from
the street or sub-surface, or from any other place, nor for interference with
light or other incorporeal hereditaments by anybody other than the Landlord, or
caused by operations by or for a governmental authority in construction of any
public or quasi-public work, neither shall the Landlord be liable for any latent
defect in the building.
FOURTEENTH. - No diminution or abatement of rent, or other compensation
shall be claimed or allowed for inconvenience or discomfort arising from the
making of repairs or improvements to the building or to its appliances, nor for
any space taken to comply with any law, ordinance or order of a governmental
authority. In respect to the various "services," if any, herein expressly or
impliedly agreed to be furnished by the Landlord to the Tenant, it is agreed
that there shall be no diminution or abatement of the rent, or any other
compensation, for interruption or curtailment of such "service" when such
interruption or curtailment shall be due to accident, alterations or repairs
desirable or necessary to be made or to inability or difficulty in securing
supplies or labor for the maintenance of such "service" or to some other cause,
not gross negligence on the part of the Landlord. No such interruption or
curtailment of any such "service" shall be deemed a constructive eviction. The
Landlord shall not be required to furnish, and the Tenant shall not be entitled
to receive, any of such "services" during any period wherein the Tenant shall be
in default in respect to the payment of rent. Neither shall there be any
abatement or diminution of rent because of making of repairs, improvements or
decorations to the demised premises after the date above fixed for the
commencement of the term, it being understood that rent shall, in any event,
commence to run at such date so above fixed.
FIFTEENTH. - The Landlord may prescribe and regulate the placing of
safes, machinery, quantities of merchandise and other things. The Landlord may
also prescribe and regulate which elevator and entrances shall be used by the
Tenant's employees, and for the Tenant's shipping. The Landlord may make such
other and further rules and regulations as, in the Landlord's judgment, may from
time to time be needful for the safety, care or cleanliness of the building, and
for the preservation of good order therein. The Tenant and the employees and
agents of the Tenant will observe and conform to all such rules and regulations.
SIXTEENTH. - In the event that an excavation shall be made for building
or other purposes upon land adjacent to the demised premises or shall be
contemplated to be made, the Tenant shall afford to the person or persons
causing or to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person or persons shall deem to be
necessary to preserve the wall or walls, structure or structures upon the
demised premises from injury and to support the same by proper foundations.
SEVENTEENTH. - No vaults or space not within the property line of the
building are leased hereunder. Landlord makes no representation as to the
location of the property line of the building. Such vaults or space as Tenant
may be permitted to use or occupy are to be used or occupied under a revocable
license and if such license be revoked by the Landlord as to the use of part or
all of the vaults or space Landlord shall not be subject to any liability;
Tenant shall not be entitled to any compensation or reduction in rent nor shall
this be deemed constructive or actual eviction. Any tax, fee or charge of
municipal or other authorities for such vaults or space shall be paid by the
Tenant for the period of the Tenant's use or occupancy thereof.
EIGHTEENTH. - That during seven months prior to the expiration of the
term hereby granted, applicants shall be admitted at all reasonable hours of the
day to view the premises until rented; and the Landlord and the Landlord's
agents shall be permitted at any time during the term to visit and examine them
at any reasonable hour of the day, and workmen may enter at any time, when
authorized by the Landlord or the Landlord's agents, to make or facilitate
repairs in any part of the building; and if the said Tenant shall not be
personally present to open and permit an entry into said premises, at any time,
when for any reason an entry therein shall be necessary or permissible
hereunder, the Landlord or the Landlord's agents may forcibly enter the same
without rendering the Landlord or such agents liable to any claim or cause of
action for damages by reason thereof (if during such entry the Landlord shall
accord reasonable care to the Tenant's property) and without in any manner
affecting the obligations and covenants of this lease; it is, however, expressly
understood that the right and authority hereby reserved, does not impose, nor
does the Landlord assume, by reason thereof, any responsibility or liability
whatsoever for the care or supervision of said premises, or any of the pips,
fixtures, appliances or appurtenances therein contained or therewith in any
manner connected.
NINETEENTH. - The Landlord has made no representations or promises in
respect to said building or to the demised premises except those contained
herein, and those, if any contained in some written communication to the Tenant,
signed by the Landlord. This instrument may not be changed, modified, discharged
or terminated orally.
TWENTIETH. - If the Tenant shall at any time be in default hereunder,
and if the Landlord shall institute an action or summary proceeding against the
Tenant based upon such default, then the Tenant will reimburse the Landlord for
the expense of attorneys' fees and disbursements thereby incurred by the
Landlord, so far as the same are reasonable in amount. Also so long as the
Tenant shall be a tenant hereunder the amount of such expenses shall be deemed
to be "additional rent" hereunder and shall be due from the Tenant to the
Landlord on the first day of the month following the incurring of such
respective expenses.
TWENTY-FIRST. - Landlord shall not be liable for failure to give
possession of the premises upon commencement date by reason of the fact that
premises are not ready for occupancy, or due to a prior Tenant wrongfully
holding over or any other person wrongfully in possession or for any other
reason: in such event the rent shall not commence until possession is given or
is available, but the term herein shall not be extended.
THE TENANT FURTHER COVENANTS:
TWENTY-SECOND. - If the demised premises or any part thereof consist of
a store, or of a first floor, or of any part thereof, the Tenant will keep the
sidewalk and curb in from thereof clean at all times and free from snow and ice,
and will keep insured in favor of the Landlord, all plate glass therein and
furnish the Landlord with policies of insurance covering the same.
TWENTY-THIRD. - If by reason of the conduct upon the demised premises
of a business not herein permitted, or if by reason of the improper or careless
conduct of any business upon or use of the demised premises, the first insurance
rate shall at any time be higher than it otherwise would be, then the Tenant
will reimburse the Landlord, as additional rent hereunder, for that part of all
fire insurance premiums hereafter paid out by the Landlord which shall have been
charged because of the conduct of such business not so permitted, or because of
the improper or careless conduct of any business upon or use of the demised
premises, and will make such reimbursement upon the first day of the month
following such outlay by the Landlord; but this covenant shall not apply to a
premium for any period beyond the expiration date of this lease, first above
specified. In any action or proceeding wherein the Landlord and Tenant are
parties, a schedule or "make up" of rate for the building on the demised
premises, purporting to have been issued by New York Fire Insurance Exchange, or
other body making fire insurance rates for the demised premises, shall be prima
facie evidence of the facts therein stated and of the several items and charges
included in the first insurance rate then applicable to the demised premises.
TWENTY-FOURTH. - If a separate water meter be installed for the demised
premises, or any part thereof, the Tenant will keep the same in repair and pay
the charges made by the municipality or water supply company for or in respect
to the consumption of water, as and when bills therefor are rendered. If the
demised premises, or any part thereof, be supplied with water through a meter
which supplies other premises, the Tenant will pay to the Landlord, as and when
bills are rendered therefor, the Tenant's proportionate part of all charges
which the municipality or water supply company shall make for all water consumed
through said meter, as indicated by said meter. Such proportionate part shall be
fixed by apportioning the respective charge according to floor area against all
of the rentable floor area in the building (exclusive of the basement) which
shall have been occupied during the period of the respective charges, taking
into account the period that each part of such area was occupied. Tenant agrees
to pay as additional rent the Tenant's proportionate part, determined as
aforesaid, of the sewer rent or charge imposed or assessed upon the building of
which the premises are a part.
TWENTY-FIFTH. - That the Tenant will purchase from the Landlord, if the
Landlord shall so desire, all electric current that the Tenant requires at the
demised premises, and will pay the Landlord for the same, as the amount of
consumption shall be indicated by the meter furnished therefor. The price for
said current shall be the same as that charged for consumption similar to that
of the Tenant by the company supplying electricity in the same community.
Payments shall be due as and when bills shall be rendered. The Tenant shall
comply with like rules, regulations and contract provisions as those prescribed
by said company for a consumption similar to that of the Tenant.
TWENTY-SIX. - If there now is or shall be installed in said building a
"sprinkler system" the Tenant agrees to keep the appliances thereto in the
demised premises in repair and good 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 the State or local government requires or recommends
that any changes, modifications, alterations or additional sprinkler heads or
other equipment be made or supplied by reason of the Tenant's business, or the
location of partitions, trade fixtures, or other contents of the demised
premises, or if such changes, modifications, alterations, additional sprinkler
heads or other equipment in the demised premises are necessary to prevent the
imposition of a penalty or charge against the full allowance for a sprinkler
system in the first insurance rate as fixed by said Exchange, or by any Fire
Insurance Company, the Tenant will at the Tenant's own expense, promptly make
and supply such changes, modifications, alterations, additional sprinkler heads
or other equipment. As additional rent hereunder the Tenant will pay to the
Landlord, annually in advance, throughout the term
$________________________________, toward the contract price for sprinkler
supervisory service.
TWENTY-SEVENTH. - The sum of $00 Dollars is deposited by the Tenant
herein with the Landlord herein as security for the faithful performance of all
the covenants and conditions of the lease by the said Tenant. If the Tenant
faithfully performs all the covenants and conditions on his part to be
performed, then the sum deposited shall be returned to said Tenant.
TWENTY-EIGHTH. - This lease is granted and accepted on the especially
understood and agreed condition that the Tenant will conduct his business in
such a manner, both as regards noise and kindred nuisances, as will in no wise
interfere with, annoy, or disturb any other tenants, in the conduct of their
several businesses, or the landlord in the management of the building; under
penalty of forfeiture of this lease and consequential damages.
TWENTY-NINTH. - The Landlord hereby recognizes as the broker who
negotiated and consummated this lease with the Tenant herein, and agrees that
if, as, and when the Tenant exercises the option, if any, contained herein to
renew this lease, or fails to exercise the option, if any, contained therein to
cancel this lease, the Landlord will pay to said broker a further commission in
accordance with the rules and commission rates of the Real Estate Board in the
community. A sale, transfer, or other disposition of the Landlord's interest in
said lease shall not operate to defeat the Landlord's obligation to pay the said
commission to the said broker. The Tenant herein hereby represents to the
Landlord that the said broker is the sole and only broker who negotiated and
consummated this lease with the Tenant.
THIRTIETH. - The Tenant agrees that it will not require, permit,
suffer, nor allow the cleaning of any window, or windows, in the demised
premises from the outside (within the meaning of Section 202 of the Labor Law)
unless the equipment and safety devices required by law, ordinance, regulation
or rule, including, without limitation, Section 202 of the New York Labor Law,
are provided and used, and unless the rules, or any supplemental rules of the
Industrial Board of the State of New York are fully complied with; and the
Tenant hereby agrees to indemnify the Landlord, Owner, Agent, Manager and/or
Superintendent, as a result of the Tenant's requiring, permitting, suffering, or
allowing any window, or windows in the demised premises to be cleaned from the
outside in violation of the requirements of the aforesaid laws, ordinances,
regulations and/or rules.
THIRTY-FIRST. - The invalidity or unenforceability of any provision of this
lease shall in no way affect the validity or enforceability of any other
provision hereof.
THIRTY-SECOND. - In order to avoid delay, this lease has been prepared
and submitted to the Tenant for signature with the understanding that it shall
not bind the Landlord unless and until it is executed and delivered by the
Landlord.
THIRTY-THIRD. - The Tenant will keep clean and polished all metal,
trim, marble and stonework which are a part of the exterior of the premises,
using such materials and methods as the Landlord may direct, and if the Tenant
shall fail to comply with the provisions of this paragraph, the Landlord may
cause such work to be done at the expense of the Tenant.
THIRTY-FOURTH. - The Landlord shall replace at the expense of the
Tenant any and all broken glass in the skylights, doors and walls in and about
the demised premises. The Landlord may insure and keep insured all plate glass
in the skylights, doors and walls in the demised premises, for and in the name
of the Landlord and bills for the premiums therefor shall be rendered by the
Landlord to the Tenant at such times as the Landlord may elect, and shall be due
from and payable by the Tenant when rendered, and the amount thereof shall be
deemed to be, and shall be paid as, additional rent.
THIRTY-FIFTH. - This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in nowise be affected, impaired or excused
because Landlord is unable 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 repairs, additions, alterations or decorations or is unable to supply
or is delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of governmental preemption in connection with a
National Emergency declared by the President of the United States or in
connection with any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency.
THE LANDLORD COVENANTS
FIRST. - That if and so long as the Tenant pays the rent and
"additional rent" reserved hereby, and performs and observes the covenants and
provisions hereof, the Tenant shall quietly enjoy the demised premises, subject,
however, to the terms of this lease, and to the mortgages above mentioned,
provided however, that this covenant shall be conditioned upon the retention of
title to the premises by Landlord.
And it is mutually understood and agreed that the covenants and
agreements contained in the within lease shall be binding upon the parties
hereto and upon their respective successors, heirs, executors and
administrators.
IN WITNESS WHEREOF, the Landlord and Tenant have respectively signed
and sealed these presents the day and year first above written.
40 MARCUS REALTY ASSOCIATES
_ By: s/Xxxxx Xxxxxxxxx [L.S.]
-----------------------------
Landlord
IN PRESENCE OF:
ELECTROGRAPH SYSTEMS, INC.
s/ Xxxxxxxx X., Xxxxxxxxx
------------------------- By: s/ Xxx Xxxxxx
-----------------
Tenant
Date: 4/29/02
-------------
State of New York County of ss.:
On 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.
----------------------------------------------------
(Signature and office of person taking
acknowledgment)
State of New York County of ss.:
On before me, the undersigned, a Notary Public in and
for said State, personally appeared
the subscribing witness(es) to the foregoing instrument, with whom I am
personally acquainted, who, being by me duly sworn, did depose and say that
he/she/they reside(s) in (if the place of residence is in a city, include the
street and street number, if any, thereof);
that he/she/they know(s)
to be the individual(s) described in and who executed the foregoing
instrument; that said subscribing
witness(es) was (were) present and say said
execute the same; and that said witness(es) at the same time subscribed
his/her/their name(s) as a witness(es) thereto.
----------------------------------------------------
(Signature and office of person taking
acknowledgment)
BUILDING......................................................................
Premises......................................................................
Landlord
To
Tenant
===============================================
LEASE
==============================================
GUARANTY
In consideration of the letting of the premises within mentioned to the
Tenant within named, and of the sum of One Dollar, to the undersigned in hand
paid by the Landlord within names, the undersigned hereby guarantees to the
Landlord and to the heirs, successors and/or assigns of the Landlord, the
payment by the Tenant of the rent, within provided for, and the performance by
the Tenant of all of the provisions of the within lease. Notice of all defaults
is waived, and consent is hereby given to all extensions of time that any
Landlord may grant.
Dated,
State of New York County of ss.:
On 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.
-----------------------------------------------------
(Signature and office of person taking
acknowledgment)
RIDER TO LEASE dated June 1, 2002 between 40 Marcus Realty Associates, as
Landlord, and Electrograph Systems, Inc., as Tenant.
--------------------------------------------------------------------------------
1. Anything herein, to the contrary notwithstanding, Tenant shall, at
Tenant's own cost and expense, secure and pay for all interior repairs,
replacements, utilities, maintenance and services required by Tenants or for
preservation of the demised premises, including but not limited to: gas
electricity, telephone, light, janitorial services, plumbing, wiring, carpentry,
mechanical, plate glass, electrical, air-conditioning, store front, painting,
decorating and maintenance services, heat, fuel, garbage and waste disposal,
snow removal, water, hot water and sewer rent. Any fees or deposits for permits
or licenses for machinery, meters, signs or any other equipment or usage, shall
be made, secured, and/or paid for by Tenant at Tenant's own cost and expense.
Except as expressly provided in this Lease, Landlord shall have no obligation to
furnish or perform interior repairs, maintenance or services; provided however,
that Landlord shall be responsible for so-called "structural" repairs, defined
as exterior walls, structural members and foundation. As designated in the
within paragraph, "utilities" refers solely to those utilities consumed by other
Tenants if any, in the building in which the demised premises are located.
2. Anything herein to the contrary notwithstanding, Tenant is hereby
given permission to erect any sign or signs in and about the demised premises at
Tenant's own cost and expense, provided: (a) Any such sign shall comply with all
rules and regulations of any governmental authority having jurisdiction thereof;
(b) Said sign or signs shall be installed without damage to Landlord's building
including signs on each exterior wall; (c) Upon the removal of any such signs,
all damage occasioned thereby shall be repaired by Tenants at Tenants' own cost
and expense.
3. Tenant shall secure, pay for and maintain during the term of this
Lease, a policy of general liability insurance, (having limits:
$1,000,000/2,000,000 for bodily injury; $100,000 for property damage) from a
financially responsible insurer licensed to do business in the State of New
York; which said policy shall name as protected, the Tenant and Landlord as the
fee owner, as their respective interests shall appear, and any other parties
designated by Tenant, and shall contain a waiver of subrogation as against the
Landlord as fee owner. Tenant shall deliver to the Landlord a certificate of
such insurance policy on or before the beginning of the term of this Lease. In
any such policy, the bodily injury coverage shall be written on an "Occurrence"
basis and shall include personal injury coverage; and shall also provide that no
modification, termination or cancellation thereof shall be effective until after
ten (10) days prior written notice has been given to Landlord by the insurance
carrier, to be forwarded by Certified or Registered Mail, Return Receipt
Requested. In the event of the failure of the Tenant to secure, maintain and pay
for such policy and to provide a certificate thereof to Landlord, Landlord may,
in Landlord's sole discretion, order such policy and the premium cost thereof
shall be due from Tenant as additional rent hereunder or Landlord may elect to
treat such failure as a default hereunder, in which case, Tenant agrees such
default is a material default of the Lease.
4. Tenant, at its cost, shall maintain a policy of standard fire and
extended coverage insurance with vandalism and malicious mischief endorsements
to the extent of at least eighty [80%] percent of full replacement value as to
the demised structure and its environs, defined as follows: $1,200,000.00. The
insurance policy shall be issued in the name of Landlord, Tenant and Landlord's
lender, if any, now or in the future, as their interests appear. The insurance
policy shall provide that any proceeds shall be made payable to the Landlord or
Landlord's lender, as Landlord may designate. The Tenant agrees to assign and
deliver at the commencement of this Lease said insurance policy to the Landlord
and the said policy and renewal thereof shall be held by said Landlord. In the
event the Tenants do not pay the premiums as they fall due on said policy,
Landlord shall have the option of paying said premiums on behalf of Tenants, and
adding the cost thereof to the next month's rent due Landlord under the terms of
this Lease as additional rent and to collect same as "additional rent".
The foregoing insurance policy shall provide that no
modification, termination or cancellation thereof shall be effective until after
thirty [30] days prior written notice has been given to the Landlord by the
insurance carrier, certified mail, return receipt.
If any extraordinary or excessive insurance premium cost is
charged to Landlord as the result of the nature of Tenant's business, or its use
and occupancy of the demised premises or an installation, condition or
alteration made or maintained by Tenant therein, the full cost of such excess
premium or extraordinary charge shall be borne by and paid by Tenant. The
finding or "make-up" of rate established by the New York Fire Rating
Organization [or such other agency having jurisdiction and responsibility for
rating the building for insurance purposes] shall be admissible as evidence in
any action and proceeding and shall be deemed conclusive evidence of the facts
therein stated and of the items and charges then applicable to the building and
the demised premises located therein. The total costs of insurance and the
totality of coverage shall not exceed that which is reasonable and customary.
5. The Tenant agrees to indemnify the Landlord, and the respective
officers, directors, agents, servants and employees thereof against and to
defend, save and hold them harmless of and from, any and all liability, cost and
damage for or arising by reason of any and all claims, suits or causes of action
for bodily injury, personal injury, death or property damage to any and all
persons in any manner caused by acts, negligence or omissions of, or any
condition created, caused, permitted or suffered by, the Tenant, its officers,
directors, agents, servants, and employees.
6. Except for injury, loss or damage occasioned directly and
specifically as the result of the Landlord's negligence, the Landlord shall not
be liable or responsible to the Tenant for the safekeeping of any goods or other
property of the Tenant, nor for injury to any person or persons or any damage to
or loss of merchandise or other property of the Tenant occasioned by theft,
fire, water, power failure, accident or the bursting, leaking or running in the
demised premises of any plumbing, heating, electrical apparatus, gas, steam or
pipes of any nature, or from any other cause whatsoever; and except for injury,
loss or damage due to Landlord's negligence, anything herein to the contrary
notwithstanding, the Tenant, for itself and its insurers, releases Landlord of
and from any and all such liability and responsibility.
7. It is understood and agreed that under any and all circumstances,
the liability of the Landlord shall not be personal and whenever Tenant, its
agents, servants or employees seek or recover any money judgment or other award
of damages against the Landlord from any Court, administrative body or tribunal
of competent jurisdiction, that satisfaction thereof shall be solely and
expressly limited to levy of execution against and collection out of the
interest of the Landlord in and to the demised premises and/or the land and
building of which the demised premises forms a part, and the Tenant for
themselves, their agents, servant and employees, heirs, successors and assigns,
expressly and specifically relinquishes, waives and releases any and all rights
to seek, secure, recover or collect any portion of such judgment, damages or
award against or from the Landlord personally or from any other property, assets
or estate of the Landlord, its heirs, successors, officers, directors,
shareholders, legal representatives, agents, servant, employees or assigns.
8. In lieu of the Landlord not requiring the Tenant to maintain a
policy of plate glass insurance, it is specifically agreed that the Tenant shall
be solely responsible for the replacement of any and all plate glass damage at
the Tenant's cost and expense. In the event the Tenant fails to replace and or
repair plate glass within a reasonable time after damage thereto, the Landlord
shall have the right to repair said plate glass damage, and in such event, the
landlord is hereby authorized to add the cost of such repair to any regular
installment of rent thereafter becoming due, as additional rent.
9. Tenants shall bear and pay to the Landlord as additional rent during
each Lease year, the cost to Landlord of the following:
A. Commencing with the rental due June 1, 2002, the fixed
annual rent hereinbefore set forth for each fiscal year of this Lease
(hereinafter a "lease year") shall be increased by additional rental in an
amount equal to one hundred [100%] percent of the amount expended for taxes, [as
hereinafter defined], in such Lease year.
For information purposes only: The 2001-2002 tax xxxx for the
demised premises is in the amount of $25,440.85.
Such additional rent shall be paid by the Tenants within fifteen (15)
days after the Landlord shall have served upon Tenants a written statement
thereof. The Tenants or their authorized representative shall have the right to
inspect the books of the Landlord during its regular business hours for the
purpose of verifying the information set forth in the statement submitted by the
Landlord pursuant to this paragraph provided that written request for such
inspection shall be made by the Tenants within ten (10) days after the receipt
of such statement. For purposes of this paragraph, the term "Taxes" means real
estate taxes, transfer taxes, vault charges and other governmental taxes or
charges, special, ordinary or extraordinary, foreseen or unforseen (but not
income, franchise, inheritance or capital stock taxes) which may now or
hereafter be levied or assessed against the lands and buildings of which the
demised premises form a part thereof. In the event the tax year does not
correspond with a Lease year, equitable proration shall be made in determining
the amount expended in respect of such period.
(a) Every "lease year' during the term hereof shall be for a
period of twelve (12) full calendar months, except that the last Lease year
shall terminate on the date this Lease expires or is otherwise terminated.
(b) In the event that as the result of changes in the laws,
enabling statutes or other code, rules or regulations, including but not limited
to the Internal Revenue Code, taxes or other levies or assessments against gross
rental income shall be substituted in whole or in part for any real property
taxes or assessments presently applicable to real property, then and to the
extent that such taxes shall be and constitute a substitute for the real
property taxes against the premises of which the demised premises forms a part,
such substitute tax or assessment shall be included in and considered part of
the real property taxes for the purposes of calculating the portion thereof to
be paid by Tenants as additional rent hereunder.
10. A. The amount of all such additional rent shall be due and payable with
the next regular monthly installment of rent following the submission to Tenant
of a xxxx, together with the calculation of additional rent due, therefor by
Landlord.
B. A copy of the official tax xxxx, insurance premium xxxx or
other statement or invoice for a charge or expense to Landlord shall be deemed
sufficient and conclusive evidence of the amount of such charge or expense, a
percentage of which is payable by Tenant to Landlord as additional rent.
C. If any extraordinary or excessive insurance premium cost is
charged to Landlord as the result of the nature of Tenant's business, or its use
and occupancy of the demised premises or an installation, condition or
alteration made or maintained by Tenant therein, the full cost of such excess
premium or extraordinary charge shall be borne by and paid by Tenants. The
finding or "make-up" of rate established by the New York Fire Rating
Organization (or such other agency having jurisdiction and responsibility for
rating the building for insurance purposes) shall be admissible as evidence in
any action and proceeding and shall be deemed conclusive evidence of the facts
therein stated and of the items and charges then applicable to the building and
the demised premises located therein. The total costs of insurance and the
totality of coverage shall not exceed that which is reasonable and customary.
D. The portion of the Landlord's costs or charges payable as
additional rent by Tenant shall be apportioned on the basis that the first Lease
year, the last Lease year or any Lease year does not coincide with the fiscal
year to which any such charge is applicable.
11. Tenant agrees that if Landlord shall pay or be compelled to pay a
sum of money or to perform any act that requires the payment of money, by reason
of the failure of the Tenant to keep, observe, or perform any of the terms,
covenants and provisions herein contained to be kept, observed or performed by
the Tenant, other than the payment of rent, then and in such event, the sum or
sums so paid by the Landlord shall, upon Landlord's demand, be paid by Tenant to
Landlord as additional rent, with interest thereon at the maximum rate of
interest allowable on the date of such demand, together with the installment of
the monthly base rent next due from date of said demand.
12. Any and all notices, consents and other communications which either
party may desire or be required to give to the other shall be in writing and,
except as otherwise herein specifically provided, shall be sent by Certified
Mail, Return Receipt Requested, addressed to the party for whom intended at the
address first herein above set forth or at such other address as such party may
designate for such purpose by notice duly given to the other. All such notices
shall be deemed to have been duly given on the third business day following the
date of the deposit thereof, securely enclosed in a postpaid wrapper addressed
as above, in an official depository maintained for mailing purposes by the U. S.
Post Office Department (or its successor postal agency).
13. If any term, condition or provision of the printed portion of this
Lease shall be inconsistent with a provision of this Rider, then the
inconsistent portions of the printed Lease form shall be deemed superseded by
the provisions set forth in this Rider. Wherever appropriate for good usage or
meaningful interpretation, terms expressed in the neuter, masculine or feminine
gender shall be deemed interchangeable, as shall terms expressed in the singular
or plural be deemed interchangeable.
14. In the event that any payment provided to be made hereunder shall
become overdue in excess of ten (10) days as additional rent, Tenant shall pay
to the Landlord a late charge of five (.05) cents for each dollar so overdue to
compensate Landlord for expenses incurred in handling such delinquent payment or
payments. The charges hereunder shall be due and owing regardless of application
of security pursuant to paragraph "10".
15. On the written request of either party, the Landlord and the Tenant
each covenant and agree to execute, seal, acknowledge and deliver unto the
other, within ten (10) days of written request, a certificate attesting: (a)
Whether this Lease is current and in full and continuing force and effect; (b)
Whether there are any defaults, arrears, set-offs, claims, counter-claims or
defenses to or against the full enforcement of any of the terms, covenants and
conditions to be paid and performed hereunder; (c) To the amount of the rent
then being paid and the dates of the commencement and expiration of the term
hereof; (d) To the period for which and the amount of the rent which has then
been prepaid; and (e) Whether the other party has fully performed all
obligations on its part to be performed.
16. It is specifically understood and agreed that any item required to
be paid by Tenant, including additional rent or payments for defaults, shall be
deemed rent, and upon the failure of Tenant to pay the same when due, it shall
be deemed equivalent to a default in the payment of rent and shall entitle
Landlord to invoke any and all remedies as in the case of non-payment of rent.
17. In any case where Landlord brings any action or summary proceeding
for any default of the Tenant hereunder, whether for the non-payment of rent or
additional rent or any other default, Landlord shall be entitled to reasonable
attorney's fees if successful; plus filing fees, sheriff's fees, if any, for any
one action or proceeding. Parties each waive trial by jury in any summary
proceeding.
18. The Tenant shall have the right to contest any real estate tax,
special assessments or other governmental charges levied against the real
property of which the demised premises are a part, by writ of certiorari, or
otherwise, in the same manner as provided by law for the owner of the property
to contest the same upon condition that the Tenant shall pay, immediately upon
billing, such real estate taxes, special assessments or other government charges
(looking to the taxing authorities for a refund thereafter), and upon the
further condition that the cost of such proceeding shall be borne solely by the
Tenant and the Tenant shall hold the Landlord free and harmless from any cost,
penalties, interest, damages or other liability otherwise incurred as the result
thereof. Landlord shall, at Tenant's request, execute such documents as are
reasonably necessary to carry out the foregoing. In the event the Tenant should
be successful in contesting as aforesaid, the result of which creates a refund
to the Landlord, the following shall apply:
Upon receipt by the Landlord of such refund, the Landlord
shall return to the Tenant the costs and expenses incurred by the Tenant in
obtaining such refund. The Tenant shall have a similar right to contest
insurance costs and any other costs charged pursuant to paragraphs "8" and "9".
19. Ceiling lighting fixtures shall not be deemed trade fixtures, and
upon installation, the same shall become, be and remain Landlord's sole
property. All light bulbs, tubes, ballasts, starters, switches, lenses and
grills for such ceiling fixtures, and the servicing and maintenance thereof
shall at all times be solely the obligation of Tenant.
20. A. Tenant covenants and agrees that it will occupy the entire
demised premises, and will conduct its business in the regular and usual manner,
throughout the term of this Lease. Tenant acknowledges that Landlord is
executing this Lease in reliance upon these covenants, and that these covenants
are a material element of consideration inducing the Landlord to execute this
Lease. Tenant further agrees that if it vacates the demised premises or fails to
so conduct its business therein, at any time during the term of this Lease,
without the prior written consent of the Landlord, then all rent and additional
rent reserved in this Lease from the date of such breach to the expiration date
of this Lease, shall become immediately due and payable to Landlord.
B. The parties recognize and agree that the damage to Landlord
resulting from any breach of the covenants in subdivision (a) hereof will be
substantial and will be greater than the rent payable for the balance of the
term of this Lease, and will be impossible of ascertainment. The parties,
therefore, agree as follows:
1. In the event of a breach or threatened
breach of the said covenants, in addition to all of Landlord's other rights and
remedies, at law or in equity or otherwise, Landlord shall have the right of
injunction to preserve Tenant's occupancy and use. The words "become vacant or
deserted" as used elsewhere in this Lease shall include Tenant's failure to
occupy or use as by this Article required.
2. If Tenant breaches either of the covenants
in subdivision (a) above, and this Lease be terminated because of such default,
then, anything in this Lease as to the contrary notwithstanding:
(a) Landlord shall have the right to
re-enter the demised premises, and to alter, reconstruct and rent all or any
part of the premises, at any rental to which Landlord shall agree, for any
portion of or beyond the original term of this Lease.
(b) Any income received by Landlord on
any such re-rental shall be the property of the Landlord alone, as compensation
for the expenses in connection with the preparation and re-renting of the
demised space, and, together with the rents and additional rents payable as
aforesaid, as liquidated damages for the breach of Tenant, which damages cannot
be computed, as aforesaid. Tenant shall have no right to any portion of such
income.
21. In any action or summary proceeding brought by Landlord against
Tenant under this Lease (or any renewal, extension, holdover or modification
thereof), for non-payment of rent or additional rent, the Tenant hereby waives
the right to interpose, and expressly covenants and agrees not to interpose, any
counterclaim or set-off of whatever nature or description. The foregoing,
however, shall not be deemed or constitute a waiver of the Tenant's right to
commence and prosecute a separate action against Landlord on a bona-fide claim.
22. Every "Lease Year" during the term hereof shall be for a period of
twelve (12) full calendar months, except that the last Lease year shall
terminate on the date this Lease expires or is otherwise terminated.
23. The fixed annual rent hereinafter provided is intended to be and
shall be absolutely net to Landlord. It is the intention of the parties hereto
that all expenses, costs and obligations of the parties hereto, all expenses,
costs and obligations of every kind and nature whatsoever relating to the
demised premises, (with the exception of the base real estate taxes and
structural repairs as defined herein), shall be paid by Tenant either directly
or as additional rent so that this Lease shall yield to Landlord the net fixed
annual rent specified during the term of this Lease.
24. If any term or provision of this Lease or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
25. Tenant agrees not to allow or permit during the demised term, any
mechanic's or other lien for work, labor and services and/or materials furnished
or otherwise to attach to and become a lien upon the premises as a result of any
work done by or on behalf of Tenant. If such lien shall so attach, Tenant shall
within thirty (30) days after notice thereof, either pay or satisfy the same or
procure the discharge thereof of record in such manner as may be permitted or
provided by law. Should Tenant fail or refuse to discharge any such lien within
the period herein provided, then Landlord is hereby authorized to add the amount
of the said lien to any regular installment of rent thereafter becoming due as
additional rent.
26. During the entire term of this Lease, the Tenant shall be required
to keep in full force and effect all necessary Certificates of Occupancy for the
purposes for which the demised premises are rented, permits and other approvals
or consents required by any governmental authority having jurisdiction over the
business conducted by the Tenant as set forth in the purpose clause of this
Lease. The Landlord represents that the present zoning of the demised premises
is "C8".
27. Should any conflict in language or interpretation occur between the
printed provisions of this Lease, the parties agree that the provisions in the
Rider shall prevail. All reference to paragraphs as set forth in the Rider shall
refer to paragraphs so indicated in the Rider and not to paragraphs in the
printed portion of this Lease, unless so designated or unless the context of the
Rider is intended to designate the printed portion of this Lease.
28. This Lease contains all of the agreements and understandings of the
parties and cannot be amended or modified except by a written agreement.
29. The unenforceability, invalidity or illegality of any provision of the
Lease shall not render the other provisions unenforceable, invalid or illegal.
30. This Lease shall not be recorded. No Memorandum shall be recorded
without the express written consent of the Landlord.
31. Tenant covenants that the demised premises will not be used so as to
interfere with other Tenants in the same building.
32. In the event the Tenant does not vacate the premises upon the
expiration date of this Lease, then and in that event, the Tenant shall remain
as month to month Tenant at a monthly rental 100% greater than the last monthly
rental paid during the term of the Lease. Nothing herein shall grant the Tenant
a right to holdover after the expiration of the Lease term.
33. The annual base rent for the years of the term of the within Lease
shall be as follows:
Annual
June 1, 2002 to May 31, 2003 $209,540.00- monthly $17,461.67
June 1, 2003 to May 31, 2004 $220,017.00- monthly $18,334.75
June 1, 2004 to May 31, 2005 $231,017.85- monthly $19,251.49
June 1, 2005 to May 31, 2006 $242,568.74- monthly $20,214.06
June 1, 2006 to May 31, 2007 $254,697.17- monthly $21,224.76
34. Notwithstanding any provision of the within Lease to the contrary,
written consent of the Landlord to an assignment of the within Lease, and/or
sub-Lease of a portion of the demised premises, shall be required. The Landlord
shall not unreasonably withhold its consent to such assignment or sub-Lease
provided the then Tenant has complied with the following terms and conditions:
(a) The within Tenant shall not be in default as to any of the
terms and conditions of the within Lease, and the Lease shall be in full force
and effect.
(b) The within Tenant shall notify the Landlord of the
proposed assignment, or sub-Lease, which notice shall be forwarded to the
Landlord by Certified Mail, Return Receipt. Said notice shall be mailed to the
Landlord no less than thirty (30) days prior to the proposed assignment or
sub-Lease. Said notice shall contain the name and address of the proposed
assignee or sub-Lessee, and if said assignee or sub-Lessee is a corporation, the
name of the principal of said corporation, the date of the proposed assignment
or sub-Lease, and the proposed use of the premises by the assignee.
(c) The use of the demised premises by the proposed assignee
or sub-Lessee shall be substantially similar to the Tenant's use and purpose
provided for in the within Lease.
(d) The assignment of Lease or sub-Lease shall be delivered to
the Landlord accompanied by an Assumption Agreement, if an assignment, both in
proper form for recording, said delivery to the Landlord to be mailed Certified
Mail, Return Receipt, within one (1) week of such assignment.
(e) Such assignment or sub-Lease shall in no manner discharge
the Tenant or any subsequent Tenants herein from any liability or obligation
whatsoever created by the within Lease, and such liability and obligation shall
continue for the remainder of the within Lease.
(f) If the Tenant is a corporation, any dissolution, merger,
consolidation or reorganization of Tenant or the sale or other transfer of fifty
(50%) percent or more of the capital stock of the Tenant shall be deemed an
assignment under the terms of this paragraph subject to all of the terms and
conditions specified herein; provided, however, that transfers of capital stock
of the Tenant between presently existing shareholders of the Tenant, or
transfers of capital stock to members of the immediate family of the present
shareholders of the Tenant, shall not be deemed an assignment pursuant to the
terms of the within paragraph.
(g) If the Tenant is a corporation, or this Lease is
subsequently assigned to a corporation, the Tenant shall furnish the Landlord
with a true copy of a resolution duly adopted by the Board of Directors of such
corporation authorizing the corporation to enter into this Lease.
(h) The Tenant shall be responsible for the payment of
reasonable attorney's fees to the Landlord's attorney for review of all
documents and the preparation of any additional documents, if necessary, which
attorney's fees will not exceed $1,000.00, plus any and all disbursements
incurred.
(i) That simultaneously with said assignment there shall be
paid to the Landlord, as additional security, a sum equal to two (2) months of
the then applicable rent, and same shall be held by the Landlord pursuant to the
same terms as the security recited herein in Lease paragraph "27". This
provision shall apply to each and every assignment or sub-Lease of the within
Lease.
35. Defaults and remedies. A. If (1) Tenant default in the payment of
any rent or any additional rent and such default continues for five (5) days
after written notice from Landlord or its agent or (2) Tenant defaults in
fulfilling any of the covenant or agreements or any rules or regulations of this
Lease on its part to be kept or performed and such default is not made good
within ten (10) days after written notice from Landlord or its agent, or within
such additional time as Tenant may be prevented from making good the default as
is caused by delays attributable to strikes, labor troubles, acts of God,
governmental prohibitions and similar causes beyond Tenant's control, or (3) If
this Lease is transferred to or devolve upon any person or corporation other
than Tenant, except as may be specifically permitted by this Lease, or if this
Lease is mortgaged or assigned without the written consent of the Landlord, then
and in any of such events mentioned in this subparagraph "A" the term thereof,
shall thereupon ipso facto expire and come to an end as if such expiration was
so fixed by the terms of this Lease on the fifth (5th) or tenth (10th) day of
such default as mentioned in (1) and (2) above and upon the occurrence mentioned
in (3) above and Landlord may re-enter upon the demised premises either with or
without process of law and remove all persons therefrom and Tenant shall quit
and surrender the same to Landlord and Tenant shall remain liable as hereinafter
provided. In the event Tenant shall fail, neglect or refuse to quit and
surrender the demised premises upon receipt of notice from Landlord declaring
the term hereof at an end, then Landlord may commence a summary proceeding to
remove Tenant from the premises as a holdover. If pursuant to (2) the default is
of such a nature that it cannot be cured within ten (10) days, if Tenant
commences to cure such default within ten (10) days and proceeds diligently to
remedy such default, the Landlord shall not have the right to terminate this
Lease.
B. If Tenant shall abandon the demised premises or if the premises
become and remain vacant or deserted for a period of fifteen (15) days, or if
the term of this Lease shall expire as hereinabove provided, or if Tenant fails
to take possession of the demised premises within forty-five (45) days after
commencement of the term of this Lease, Landlord may re-enter the demised
premises and remove Tenant or its legal representatives or other occupant by
summary proceedings or otherwise and Tenant hereby waives the service of notice
of intention or to institute legal proceedings to that end.
C. In case of any re-entry, expiration and/or dispossess by summary
proceedings or otherwise, the rent shall become due thereupon and be paid up to
the time of such re-entry, dispossess and/or expiration, together with such
expenses as Landlord may incur for legal expenses, attorneys fees, brokerage
and/or putting the demised premises in good order, or for preparing the same for
re-rental; Landlord may relet the premises or any part or parts thereof either
in the name of Landlord or otherwise, for a term or terms which may at the
Landlord's option be less than or exceed the period which may otherwise have
constituted the balance of the term of this Lease and may grant reasonable
concessions, or free rent; and Tenant or the legal representatives of Tenant
shall also pay Landlord as liquidated damages for the failure of Tenant to
observe and perform said Tenant's covenants herein contained, and deficiency
between all rent or additional rent hereby reserved and/or covenanted to be
paid, with percentage rental computed for the balance of the term for the
purpose of this article at the average annual percentage rent for the two (2)
full Lease years preceding the default or re-entry and the net amount, if any,
of the rents collected on account of the Lease of the demised premises, for each
month of the period which would otherwise have constituted the balance of the
terms of this Lease. In computing such liquidated damages there shall be added
to the said deficiency such expenses as Landlord may incur in connection with
reletting, such as reasonable legal expenses, attorneys fees, brokerage and for
keeping the demised premises in good order or for preparing the same for
reletting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent days specified in this Lease. Any suit brought to collect the
amount of the deficiency for any month shall not prejudice in any way the rights
of Landlord to collect the deficiency for any subsequent month by a similar
proceeding. Landlord at Landlord's option may make such alterations, repairs,
replacements and/or decorations in the demised premises; and the making of such
alterations, repairs, replacement and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Landlord
shall not be liable for failure to relet the demised premises. The words
"re-enter" or "re-entry" as used in this Lease shall not be restricted to their
technical legal meaning. Any rents or other income received by Landlord on any
such re-rental shall be the property of Landlord alone and Tenant shall have no
right to any portion of such income. In the event that the Tenant is successful
in any proceeding brought pursuant to the provisions hereof, it shall be
entitled to its reasonable legal fees.
D. In the event of a breach or threatened breach by Tenant of any of
the covenants or provisions of this Lease, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or equity as if
re-entry, summary proceedings and other remedies were not herein provided for.
Mention in this Lease of any particular remedy shall not preclude Landlord from
any other remedy, in law or in equity. Tenant hereby expressly waives any and
all rights of redemption granted by order or any present or future laws in the
event of Tenant being evicted or dispossessed, or in the event of Landlord
obtaining possession of the demised premises by reason of Tenant's violation of
the provisions of this Lease. Tenant further waives the provisions of Section
749, Subparagraph 3 of the Real Property Actions and Proceedings Law and any
successor statute thereto.
E. In the event Tenant shall default in the payment of any rent or
additional rent as above provided, and such default shall continue for ten (10)
days after written notice from Landlord, or its agent and not be made good
within said ten (10) day period, then and in such event, Landlord may, at its
election, and in addition to any other remedy herein afforded, declare this term
at an end and accelerate the rent due for the entire Lease period. In such
event, the balance of the minimum rent reserved from the date of such default
until the last day of the Lease period, shall thereupon be forthwith due and
payable. Failure by Landlord to relet the premises shall not be deemed an offset
or defense to recovery of the aforesaid minimum rent due for the balance of the
term accelerated by reason of Tenant's default above mentioned. Landlord shall
be required to give the notice provisions contained in paragraph "12" hereof.
F. If Tenant shall default in the performance of any provision,
covenant or condition on its part to be performed under this Lease, Landlord
may, at its option, perform the same for the account and at the expense of
Tenant. If Landlord at any time shall be compelled to pay or elected to pay any
sum of money by reason of the failure of the Tenant to comply with any provision
of this Lease, or if Landlord incurs any expense, including reasonable
attorney's fees in prosecuting or defending any action or proceeding by reason
of any default of Tenant under this Lease, the sums so paid by Landlord with
legal interest, costs, and damages shall be due from and be paid by Tenant to
Landlord on demand. All such sums, including all payments required to be made by
Tenant of any kind under this Lease, shall be deemed additional rent and
Landlord shall have all remedies for the collection thereof that Landlord may
have for non-payment of minimum rent. In the event that the Tenant is successful
in any proceedings brought pursuant to the provisions hereof, it shall be
entitled to its reasonable legal fees and costs.
36. The Tenant represents, warrants and declares that it has been
afforded the opportunity to make exterior and interior inspection of the
premises which are the subject of this Lease, that they have either made such
inspection of the said premises, or has caused such inspection of the said
premises to be made, and the Tenant distinctly understand that the premises are
being leased in their present condition and state of repair, and tenants agree
that at the time of closing Tenant will accept the premises in their present
condition and state of repair.
37. Prior to the commencement of any alterations contemplated by the
Tenant during the term of this Lease, the Tenant shall furnish written plans and
specifications therefor to the Landlord and obtain the Landlord's written
consent thereto, which consent will not be unreasonably withheld.
(a) The Tenant will apply for an obtain any and all permits
therefor as same may be required by any municipal agency or authority having
jurisdiction, prior to the commencement of such alterations, and will apply for
and secure any and all requisite certificates of occupancy or certificates of
completion therefor.
(b) The Landlord and Tenant acknowledge that the Tenant
contemplates causing extensive alterations and renovations to the demised
premises, at the Tenant's sole cost and expense.
The Tenant shall notify the Landlord upon the completion of the foregoing
alterations and renovations. Upon inspection by the Landlord that same have been
performed in a workmanlike and satisfactory manner, and of all requisite
permits, completion certificates and/or Certificates of Occupancy, are to be
furnished to the Landlord.
38. Tenant represents and warrants that Tenant did not consult with any
broker with regard to this transaction, and the Tenant agrees to indemnify and
save harmless the Landlord of any and all liability, expense, loss, cost or
damage that may arise by reason of any brokerage claims or demands by reason of
Tenant's acts, and makes this covenant as an express inducement to the Landlord,
intending that Landlord shall rely thereon entering into this Lease. This
covenant and representation is irrevocable, and shall survive the execution of
the within Lease.
39. Tenant shall promptly at its sole cost and expense:
(a) Comply with all laws, statutes, codes, ordinances, orders,
judgments, decrees, injunctions, rules and regulations, permits, licenses,
authorizations, directions and requirements of, and agreements with, all
governments, departments, commissions, boards, courts, authorities, agencies,
officials and officers, foreseen or unforeseen, ordinary or extraordinary, and
all requirements and obligations arising from any restrictions or agreements of
record, which now or at any time hereafter may be applicable to the Demised
Premises or any part thereof or any use or condition of the Demised Premises or
any part thereof ("Legal Requirements"). Tenant acknowledges and agrees that its
obligation to comply with all Legal Requirements shall include, but not be
limited to, The Americans with Disabilities Act of 1990 and similar present or
future laws, and rules and regulations issued pursuant thereto;
(b) Keep the Demised Premises free of Hazardous Materials (as
hereinafter defined). Neither Tenant or any other occupant of the Demises
Premises shall, nor shall permit, anyone to use, transport, store, dispose or
deal with, in any manner, Hazardous Materials on the Demised Premises except in
compliance with all Legal Requirements. In the event that Tenant receives any
notice or advice from any governmental agency or any source whatsoever with
respect to the existence of Hazardous Materials on, or affecting the Demised
Premises, Tenant shall immediately notify Landlord. If Tenant shall cause or
permit Hazardous Materials to be placed on the Demised Premises, Tenant shall
conduct and complete all investigations, sampling and testing and all remedial
actions necessary to clean up and remove all Hazardous Materials from the
Demised Premises in accordance with all Legal Requirements. The term "Hazardous
Materials", as used in this Lease, shall mean gasoline, petroleum and other
hydrocarbons, explosives, radioactive materials, heavy metals, polychlorinated
biphenyls, and all other materials, solid, liquid or gas, whether similar or
dissimilar to those enumerated above, which are defined as hazardous or toxic by
any federal, state or local law, ordinance or regulation, now in existence or
hereafter adopted.
40. If any provision of this Rider shall be in conflict with any
provision of the printed form of this Lease, the provisions of this Rider shall
control.
In the Presence of: 40 Marcus Realty Associates
BY:________________________________
___________________ President
Electrograph Systems, Inc.
-------------------
BY:_______________________________
Xxx Xxxxxx
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