EXHIBIT 10.6
STANDARD FORM OF LOFT LEASE The Real Estate Board of New York, Inc.
AGREEMENT OF LEASE, MADE AS OF THIS 18TH DAY OF FEBRUARY, BETWEEN FIRST
INDUSTRIAL , L.P., HAVING XX XXXXXX XX XXXXXXXXX XXXXXXXXX , XXXXX 000 XXXXXXX,
XXX XXXX 00000, PARTY OF THE FIRST PART, HEREINAFTER REFERRED TO AS OWNER, XXXXX
SYSTEMS, INC., HAVING XX XXXXXX XX 000 XXXXX XXXXXX, XXXXXXXXXX, XXX XXXX 00000,
PARTY OF THE SECOND PART, HEREINAFTER REFERRED TO AS TENANT.
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
approximately 15,722 square feet of space as shown on the attached sketch in the
building known as 00 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx, for the term of seven
(7) years and one (1) month (or until such term shall sooner cease and expire as
hereinafter provided) to commence on the commencement date and to end on the
expiration date and both dates inclusive, at an annual rental rate of See
Schedule "A" in Rider annexed hereto which Tenant agrees to pay in lawful money
of the United States which shall be legal tender in payment of all debts and
dues, public and private, at the time of payment, in equal monthly installments
in advance on the first day of each month during said term, at the office of
Owner or such other place as Owner may designate, without any set off or
deduction whatsoever, except that Tenant shall pay the first monthly xxxxxx
instalment(s) on the execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly instalment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent:
1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy: 2.
Tenant shall use and occupy demised premises for warehousing, offices and light
assembly of alarm systems and related uses provided such use is in accordance
with the certificate of occupancy for the building, if any, and for no other
purpose.
Alterations: 3.
Tenant shall make no changes in or to the demised premises of any nature without
Owner's prior written consent. Subject to the prior written consent of Owner,
and to the provisions of this article, Tenant at Tenant's expense, may make
alterations, installations, additions or improvements which are non-structural
and which do not affect utility services or plumbing and electrical lines, in or
to the interior of the demised premises using contractors or mechanics first
approved by Owner. Tenant shall, as its expense, before making any alterations,
additions, installations or improvements obtain all permits, approval and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to Owner. Tenant
agrees to carry and will cause Tenant's contractors and sub- contractors to
carry such xxxxxxx'x compensation, general liability, personal and property
damage insurance as Owner may require. If any mechanic's lien is filed against
the demised premises, or the building of which the same forms a part, for work
claimed to have been done for, or materials furnished to, Tenant, whether or not
done pursuant to this article, the same shall be discharged by Tenant within
thirty days thereafter, at Tenant's expense, by filing the bond required by law
or otherwise. All fixtures and all paneling, partitions, railings and like
installations, installed in the premises at any time, either by Tenant or by
Owner on Tenant's behalf, shall, upon installation, become the property of Owner
and shall remain upon and be surrendered with the demised premises unless Owner,
by notice to Tenant no later than twenty days prior to the date fixed as the
termination of this lease, elects to relinquish Owner's right thereto and to
have them removed by Tenant, in which event the same shall be removed from the
demised premises by Tenant prior to the expiration of the lease, at Tenant's
expense. Nothing in this Article shall be construed to give Owner title to or to
prevent Tenant's removal of trade [fixtures], moveable office furniture and
equipment, but upon removal of any such from the premises or upon removal of
other installations as may be required by Owner. Tenant shall immediately and at
its expense, repair and restore the premises so the condition existing prior to
installation and repair any damage to the demised premises or the building due
to such removal. All property permitted or required to be removed, by Tenant at
the end of the term remaining in the premises after Tenant's removal shall be
deemed abandoned and may, at the election of Owner, either be retained as
Owner's property or removed from the premises by Owner, at Tenant's expense.
Repairs:
4. Owner shall maintain and repair the exterior of and the public portions of
the building. Tenant shall, throughout the term of this lease, take good care of
the demised premises including the bathrooms and lavatory facilities (if the
demised premises encompass the entire floor of the building) and the windows and
window frames and the fixtures and appurtenances therein and at Tenant's sole
costs and expense promptly make all repairs thereto and to the building, whether
structural or non-structural in nature, caused by or resulting from the
carelessness, omission, neglects or improper conduct of Tenant, Tenant's
servants, employees, invitees, or licensees, and whether or not arising from
such Tenant conduct or omission, when required by other provisions of this
lease, including Article 6, Tenant shall also repair all damage to the building
and the demised premises caused by the moving of Tenant's fixtures, furniture or
equipment. All the aforesaid repairs shall be of quality of class equal to the
original work or construction. If Tenant fails, after ten days notice, to
proceed with due diligence to make repairs required to be made by Tenant, the
same may be made by the Owner at the expense of Tenant, and the expenses thereof
incurred by Owner shall be collectible, as additional rent, after rendition of a
xxxx or statement therefor. If the demised premises be or become infested with
vermin, Tenant shall, at its expense, cause the same to be exterminated. Except
as specifically provided in Article 9 or elsewhere in this lease, there shall be
no allowance to the Tenant for a diminution of rental value and no liability on
the part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner, Tenant or others making or failing to make any repairs,
alterations, additions or improvements in or to any portion of the building or
the demised premises or in and to the fixtures, appurtenances or equipment
thereof. The provisions of this Article 4 with respect to the making of repairs
shall not apply in the case of fire or other casualty with regard to which
Article 9 hereof shall apply.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the New York State Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals or of any other Board or body having or asserting
jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant shall, at Tenant's sole cost and expense,
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, or the
Insurance Services Office, or any similar body which shall impose any violation,
order or duty upon Owner or Tenant with respect to the demised premises, arising
out of Tenant's use or manner of use thereof, or, with respects to the building,
if arising out of Tenant's use or manner of use of the demised premises or the
building (including the use permitted under the lease). Except as provided in
Article 30 hereof, nothing herein shall require Tenant to make structural
repairs or alterations unless Tenant has, by its manner of use of the demised
premises or method of operation therein, violated any such laws, ordinances,
orders, rules, regulations or requirements with respect thereto. Tenant shall
not do or permit any act or thing to be done in or to the demised premises which
is contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner, Tenant shall not keep anything in the demised premises except
as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. If by reason of failure to comply with the foregoing the
fire insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of such
failure by Tenant. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" or rate for the building or demised premises
issued by a body making fire insurance rates applicable to said premises shall
be conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to said premises. Tenant
shall not place a load upon any floor of the demised premises exceeding the
floor load per square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to prescribe the weight and position of
all safes, business machines and mechanical equipment. Such installations shall
be placed and maintained by Tenant, at Tenant's expense, in setting sufficient,
in Owner's judgement, to absorb and prevent vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request.
Tenant's Liability Insurance Property Loss, Damage, Indemnity:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, not for loss of or damage
to any property of Tenant by thefts or otherwise, nor for any injury or damage
to persons or property resulting from any cause of whatsoever nature, unless
caused by or due to the negligence of Owner, its agents, servants or employees:
Owner or its agents shall not be liable for any damage caused by other tenants
or persons in, upon or about said building or caused by operations in connection
of any private, public or quasi public work. If at any time any windows of the
demised premises are temporarily closed, darkened or bricked up (permanently
closed, darkened or bricked up, if required by law) for any reason whatsoever
including, but not limited to Owner's own acts. Owner shall not be liable for
any damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction. Tenant
shall indemnify and save harmless Owner against and from all liabilities,
obligations, damaged, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable attorney's fees,
paid, suffered or incurred as a result of any breach by Tenant, Tenant's agents,
contractors, employees, invitees, or licensees, of any covenant or condition of
this lease, or the carelessness, negligence or improper conduct of the Tenant,
Tenant's Agents, contractors, employees, invitees or licensees. Tenant's
liability under this lease extends to the acts and omissions of any sub-tenant,
and any agent, contractor, employee, invitee or licensee of any sub- tenant. In
case any action or proceeding is brought against Owner by reason of any such
claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resign
or defend such action or proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner and this
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by and at the
expense of Owner and the rent, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the [time] the date when the premises
shall have been repaired and restored by Owner, subject to Owner's right to
elect not to restore the same as hereinafter provided. (d) If the demised
premises are rendered wholly unusable or (whether or not the demised premises
are damaged in whole or in part) if the building shall be so damaged that Owner
shall decide to demolish it or to rebuild it, then in any of such events, Owner
may elect to terminate this lease by written notice to Tenant, given within 90
days after such fire or casualty, specifying a date for the expiration of the
lease, which date shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the term of this lease shall
expire as fully and completely as if such date were the date set forth above for
the termination of this lease and Tenant shall forthwith quit, surrender and
vacate the premises without prejudice however, to Owner's rights and remedies
against Tenant under the lease provisions in effect prior to such termination,
and any rent owing shall be paid up to such date and any payments of rent made
by Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Owner shall serve a termination notice as provided
for herein. Owner shall make the repairs and restorations under the conditions
of (b) and (c) hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration for removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and movable equipment, furniture, and
other property. Tenant's liability for rent shall resume five (5) days after
written notice from Owner that the premises are substantially ready for Tenant's
occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law. Owner
and Tenant each hereby releases and waives all right of recovery against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
parts benefiting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
Eminent Domain: 10.
If the whole or any part of the demised premises shall be acquired or condemned
by Eminent Domain for any public or quasi public use or purpose, then and in
that event, the term of this lease shall cease and terminate from the date of
title vesting in such proceeding and Tenant shall have no claim for the value of
any unexpired term of said lease. Tenant shall have the right to make an
independent claim to the condemning authority for the value of Tenant's moving
expenses and personal property, trade fixtures and equipment, provided Tenant is
entitled pursuant to the terms of the lease to remove such property, trade
fixtures and equipment at the end of the term and provided further such claim
does not reduce Owner's reward.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant shall be deemed an assignment. If this lease be
assigned, or if the demised premises or any part thereof be underlet or occupied
by anybody other than Tenant, Owner may, after default by Tenant, collect rent
from the assignee, under tenant or occupant, and apply the net amount collected
to the rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting. See paragraph "55th"
in Rider.
Electric Current:
12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing leaders to the building or the risers of wiring installation and Tenant
may not use any electrical equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the building. The change at any time of the character of
electric service shall in no wise make Owner liable or responsible to Tenant,
for any loss, damages or expenses which Tenant may sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and, at other
reasonable times on reasonable notice to examine the same and to make such
repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to any portion of the building or which Owner may elect to
perform in the premises after Tenant's failure to make repairs or perform any
work which Tenant is obligated to perform under this lease, or for the purpose
of complying with laws, regulations and other directions of governmental
authorities. Tenant shall permit Owner to use and maintain and replace pipes and
conduits in and through the demised premises and to erect new pipes and conduits
therein provided, wherever possible, they are within walls or otherwise
concealed. Owner may, during the progress of any work in the demised premises,
take all necessary materials and equipment into said premises without the same
constituting an eviction nor shall the Tenant be entitled to any abatement of
rent while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof, Owner shall
have the right to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the building, and
during the last six months of the term for the purpose of showing the same to
prospective tenants and may, during said six months period, place upon the
premises the usual notices "To Let" and "For Sale" which notices Tenant shall
permit to remain thereon without molestation. If Tenant is not present to open
and permit an entry into the premises. Owner or Owner's agents may enter the
same whenever such entry may be necessary or permissible by master key or
forcibly and provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Owner or its agents liable therefor, nor
in any event shall the obligations of Tenant hereunder be affected.
Vault, Vault Space, Area:
14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to location of the property line of the building. All vaults
and vault space and all such areas not within the property line of the building,
which Tenant may be permitted to use and/or occupy is to be used and/or occupied
under a revocable license, and if any such license be revoked, or if the amount
of such space or area be diminished or required by any federal, state or
municipal authority or public utility. Owner shall not be subject to nay
liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are a part. Tenant has inspected the premises and accepts them as is,
subject to the riders annexed hereto with respect to Owner's work, if any. In
any event, Owner makes no representation as to the condition of the premises and
Tenant agrees to accept the same subject to violations, whether or not of
record. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenants shall be responsible for and
shall procure and maintain such license or permit.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by sending of a written notice to Tenant within
a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor which is not dismissed within 60 days of the
commencement thereof; or (2) the making by Tenant of an assignment or any other
arrangement for the benefit of creditors under any state statute. Neither Tenant
nor any person claiming through or under Tenant, or by reason of any statute or
order of court, shall thereafter be entitled to possession of the premises
demised but shall forthwith quit and surrender the premises. If this lease shall
be assigned in accordance with its terms, the provisions of this Article 16
shall be applicable only to the party then owning Tenant's interest in this
lease.
(b) It is stipulated and agreed that in the event of the termination of this
lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any other
provisions of this lease to the contrary be entitled to recover from Tenant as
and for liquidated damages an amount equal to the difference between the rental
reserved hereunder for the unexpired portion of the term demised and the fair
and reasonable rental value of the demised premises for the same period. In the
computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination and the fair and reasonable
rental value of the demised premises for the period for which such installment
was payable shall be discounted to the date of termination at the rate of four
percent (4%) per annum. If such premises or any part thereof be relet by the
Owner for the unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amounts of rent reserved upon such reletting shall be deemed to be
the fair and reasonable rental value for the part or the whole of the premises
so re-let during the term of the re-letting. Nothing herein contained shall
limit or prejudice the right of the Owner to prove for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises becomes vacant or deserted "or if this lease be rejected under
s. 235 of Title 11 of the U.S. Code (bankruptcy code);" or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; or
if Tenant shall make default with respect to any other lease between Owner and
Tenant; or if Tenant shall have failed, after five (5) days written notice, to
redeposit with Owner any portion of the security deposited hereunder which Owner
has applied to the payment of any rent and additional rent due and payable
hereunder or failed to move into or take possession of the premises within
fifteen (15) days after the commencement of the term of this lease, of which
fact Owner shall be the sole judge; then in any one or more of such events, upon
Owner serving a written five (5) days notice upon Tenant specifying the nature
of said default and upon the expiration of said five (5) days, if Tenant shall
have failed to comply with or remedy such default, or if the said default or
omission complained of shall be of a nature that the same cannot be completely
cured or remedied within said five (5) day period, and if Tenant shall not have
diligently commenced during such default within such five (5) day period, and
shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written three (3) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said three (3) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such three (3) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and the
term shall expire as aforesaid; or if Tenant shall make default in the payment
of the rent reserved herein or any item of additional rent herein mentioned or
any part of either or in making any other payment herein required; then and in
any of such events Owner may without notice, re-enter the demised premises
either by force or otherwise, and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other occupant of demised
premises and remove their effects and hold the premises as if this lease had not
been made, and Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end. If Tenant shall make
default hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease. Owner may cancel and terminate such renewal or
extension agreement by written notice.
Remedies of Owner and Waiver of Redemption 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent, and additional rent, shall become due thereupon and be paid up to the
time of such re-entry, dispossess and/or expiration, (b) Owner may re-let the
premises or any part or parts thereof, either in the name of Owner or otherwise,
for a term or terms, which may at Owner's option be less than or exceed the
period which would otherwise have constituted the balance of the term of this
lease and may grant concessions or free rent or charge a higher rental than that
in this lease, (c) Tenant or the legal representatives of Tenant shall also pay
Owner as liquidated damages for the failure or Tenant to observe and perform
said Tenant" covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the premises or any
part or parts thereof shall not release or affect Tenant's liability for damages
in computing such liquidated damages there shall be added to the said deficiency
such expenses as Owner may incur in connection with re-letting, such as legal
expenses, attorneys' fees, brokerage, advertising and for keeping the demised
premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws.
Fees and Expenses
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, then, unless otherwise
provided elsewhere in this lease. Owner may immediately or at any time
thereafter and without notice perform the obligation of Tenant thereunder. If
Owner, in connection with the foregoing or in connection with any default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceedings, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within five (5) days of rendition of any xxxx
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner as damages.
Building Alterations and Management:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenant making any repairs in the
building or any such alterations, additions and improvements.11 Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
any controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the demised premises or the
building except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" on the date possession is rendered and
acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between Owner
and Tenant and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect and [abandonment] of it in whole or in part,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
End of Term:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, [broom] clean, in good
order and condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property from the demised premises. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this Lease or any renewal thereof, falls
on Sunday, this lease shall expire at noon on the preceding Saturday unless it
be a legal holiday in which case it shall expire at noon on the preceding
business day.
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 34
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised premises on the date of
the commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or if Owner has
not completed any work required to be performed by Owner, or for any other
reason, Owner shall not be subject to any liability for failure to give
possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this lease, but the rent payable hereunder shall be abated (provided
Tenant is not responsible for Owner's inability to obtain possession or complete
any work required) until after Owner shall have given Tenant notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lease. Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. The provisions
of this article are intended to constitute "an express provision to the
contrary" within the meaning of Section 223.a of the New York Real Property Law.
No Waiver:
25. The failure of Owner to seek redress for violation of, or to insist upon the
strict performance of any covenant or condition of this lease or of any of the
Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent
a subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of rent
with knowledge of the breach of any covenant of this lease shall not be deemed a
waiver of such breach and no provision of this lease shall be deemed to have
been waived by Owner unless such waiver be in writing signed by Owner. No
payment by Tenant or receipt by Owner of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement of any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to
Owner's right to recover the balance of such rent or pursue any other remedy in
this lease provided. All checks rendered to Owner as and for the rent of the
demised premises shall be deemed payments for the account of Tenant. Acceptance
by Owner of rent from anyone other than Tenant shall not be deemed to operate as
an attornment to Owner by the payor of such rent or as a consent by Owner to an
assignment or subletting by Tenant of the demised premises to such payor, or as
a modification of the provisions of this lease. No act or thing done by Owner or
Owner's agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No employee of Owner or Owner's agent
shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
Waiver of Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further mutually agreed
that in the event Owner commences any summary proceeding for possession of the
premises, Tenant will not interpose any counterclaim under Article 4 except for
statutory mandatory counterclaims.
Inability to Perform: 27. 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 no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or delayed from so doing by reason
of strike or labour troubles or any cause whatsoever beyond Owner's sole control
including, but not limited to, government preemption in connection with a
National Emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
Bills and Notices:
28. Except as otherwise in this lease provided, a xxxx, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered it, in writing, delivered to Tenant
personally or sent by registered or certified mail addressed to Tenant at the
building of which the demised premises form a part or at the last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such xxxx or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
Water Charges:
29. If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes (of which fact Tenant constitutes Owner to be the
sole judge) Owner may install a water meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay Owner for the cost of the meter
and the cost of the installation, thereof and throughout the duration of
Tenant's occupancy Tenant shall keep said meter and installation equipment in
good working order and repair at Tenant's own cost and expense in default of
which Owner may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant, as additional rent. Tenant agrees to pay
for water consumed, as shown on said meter as and when bills are rendered, and
on default in making such payment Owner may pay such charges and collect the
same from Tenant, as additional rent. Tenant covenants and agrees to pay, as
additional rent, the sewer rent, charge or any other tax, rent, levy or charge
which now or hereafter is assessed, imposed or a lien upon the demised premises
or the realty of which they are part pursuant to law, order or regulation made
or issued in connection with the use, consumption, maintenance or supply of
water, water system or sewage or sewage connection or system. If the building of
the demised premises or any part therof is supplied with water through a meter
through which water is also supplied to other premises Tenant shall pay to Owner
as additional rent, on the first day of each month, ($25.00) of the total meter
charges as Tenant's portion. Independently of and in addition to any of the
remedies reserved to Owner hereinabove or elsewhere in this lease, Owner may xxx
for an collect any monies to be paid by Tenant of paid by Owner for any of the
reasons or purposes hereinabove set forth.
Sprinklers:
30. Anything elsewhere in this lease to the contrary notwithstanding, if the New
York Board of Fire Underwriters or the New York Fire Insurance Exchange or any
bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant's business,
or the location of partitions, trade fixtures, or other contents of the demised
premises, or for any other reason, or if any such sprinkler system
installations, modifications, alterations, additional sprinkler heads or other
such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system to the fire insurance
rate set by any said Exchange or by any fire insurance company. Tenant shall, at
Tenant's expense, promptly make such sprinkler system installations, changes,
modifications, alterations, and supply additional sprinkler heads or other
equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent the sum
of 7.15% on the first day of each month during the term of this lease, as
Tenant's portion of the contract price for sprinkler supervisory service.
Elevators, Heat, Cleaning:
31. As long as Tenant is not in default under any of the covenants of this lease
Owner shall: [(a) and (b)] omitted] (c) furnish heat to the demised premises,
when and as required by law, on business days from 8 a.m. to 6 p.m.; Owner
reserves the right to stop service of the heating, elevator, plumbing and
electric systems, when necessary, by reason of accident, or emergency, or for
repairs, alterations, replacements or improvements, in the judgment of Owner
desirable or necessary to be made, until said repairs, alterations, replacements
or improvements shall have been completed.
Security:
32. Tenant has deposited with Owner the sum of $20,350.00 as security of the
faithful provisions and conditions of this lease; it is agreed that in the event
Tenant defaults in respect of any of the terms, provision and conditions of this
lease, including, but not limited to, the payment of rent and additional rent,
Owner my use, apply or retain the whole or any part of the security so deposited
to the extent required for the payment of any rent and additional rent or any
other sum as to which Tenant is in default or for any sum which Owner may expend
or may be required to expend by reason of Tenant's default in respect of any of
the terms, covenants and conditions of this lease, including, but not limited
to, any damages or deficiency in the reletting of the premises, whether such
damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
Lease and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee of leasee and Owner shall thereupon be released by
Tenant from all liability solely for the return of said security, and it is
agreed that the provisions hereof shall apply to every transfer or assignment
made of the security to a new Owner. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Owner nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. See paragraph 89th in Rider.
Captions:
33. The Captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this lease nor the intent
of any provision thereof.
Definitions:
34. The term "Owner" as used in this lease means only the owner of the fee or of
the leasehold of the building, or the mortgagee in possession, for the time
being of the land and building (or the owner of a lease of the building or of
the land and building) of which the demised premises form a part, so that in the
event of any sale or sales of said land and building or of said lease, or in the
event of a lease of said building, or of the land and building, the said Owner
shall be and hereby is entirely freed and relived of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of Owner hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental rate whether so-expressed or expressed in monthly
installments, and "additional rent". "Additional rent" means all sums which
shall be due to new Owner from Tenant under this lease, in addition to the
annual rental rate. The term "business days" as used in this lease, shall
exclude Saturdays (except such portion thereof as is covered by specific hours
in Article 31 hereof), Sundays and all days observed by the State or Federal
Government as legal holidays and those designated as holidays by the applicable
building service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service. Wherever it is expressly
provided in this lease that consent shall not be unreasonably withheld, such
consent shall not be unreasonably delayed.
Adjacent Excavation - Sharing:
35. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of rent.
Rules and Regulations:
36. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply strictly with, the Rules and Regulations
annexed hereto and such other and further reasonable Rules and Regulations as
Owner or Owner's Agent may from time to time adopt. Notice of any additional
rules or regulations shall be given in such manner as Owner may elect. In case
Tenant disputes the reasonableness of any additional Rule or Regulation
hereafter made or adopted by Owner or Owner's agents, the parties hereto agree
to submit the question of the reasonableness of such Rule or Regulation for
decision to the New York office of the American Arbitration Association, whose
determination shall be final and conclusive upon the parties hereto. The right
to dispute the reasonableness of any additional Rule or Regulation upon Tenant's
part shall be deemed waived unless the same shall be asserted by service of a
notice, in writing upon Owner within ten (10) days after the giving of notice
thereof. Nothing in this lease contained shall be construed to impose upon Owner
any duty or obligation to enforce the Rules and Regulations or terms, covenants
or conditions in any other lease, as against any other tenant and Owner shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees.
Glass:
37. Owner shall replace, at the expense of the Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Owner may insure, and keep insured, at Tenant's expense, all plate and
other glass in the demised premises for and in the name of Owner. Bills for the
premiums therefor shall be rendered by Owner to Tenant at such times as Owner
may elect, and shall be due from, and payable by, Tenant when rendered, and the
amount thereof shall be deemed to be, and be paid, as additional rent.
Estoppel Certificate:
38. Tenant, at any time, and from time to time, upon at least 10 days' prior
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), stating the dates to which the rent and additional rent have
been paid, and stating whether or not there exists any default by Owner under
this Lease, and, if so, specifying each such default.
Directory Board Listing:
39. If, at the request of and as accommodation to Tenant, Owner shall place upon
the directory board in the lobby of the building, one or more names of persons
other than Tenant, such directory board listing shall not be construed as the
consent by Owner to an assignment or subletting by Tenant to such person or
persons.
Successors and Assigns:
40. The covenants, conditions and agreements contained in this lease shall bind
and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution, or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this lease, the relationship of Owner and Tenant hereunder, or Tenant's use and
occupancy of the demised premises.
SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF
IN WITNESS WHEREOF, Owner and Tanant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner:
--------------------------------
FIRST INDUSTRIAL, L.P. a Delaware Limited Partnership
BY: FIRST INDUSTRIAL REALTY TRUST, INC. a Maryland Corporation, General Partner
BY: ____________________________
Witness for Tenant
--------------------------------
XXXXX SYSTEMS, INC.
BY: ____________________________
ACKNOWLEDGMENTS
CORPORATE TENANT
STATE OF NEW YORK, no.:
County of
On this day
of , 19 , before me
personally came
to me known, who being by me duly sworn, did depose and say
that he resides
and he is the of
the corporation described in and which executed the foregoing instrument, as
TENANT: that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
board of Directors of said corporation, and that he signed his name thereto by
like order.
INDIVIDUAL TENANT
STATE OF NEW YORK no.:
County of
On this day
of , 19 , before me
personally came
to me known and known to me to be the individual described
in and who, as TENANT, executed
the foregoing instrument and acknowledged to me
that he executed the same.
* * * * * * * * * *
RULES AND REGULATIONS ATTACHED TO
AND MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 36
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
airways, corridors or halls shall not be obstructed or encumbered by any Tenant
or used for any purpose other than for ingress or egress from the demised
premises and for delivery of merchandise and equipment in a prompt and efficient
manner using elevators and passageways designated for such delivery by Owner.
There shall not be [ ] in any space, or in the public hall of the building,
either by any Tenant or by [ ] or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building.
Tenant thereof shall further, at Tenant's expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building; and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the buildings by reason of noise, odors, and or
vibrations, or interfere in any way, with other Tenants or those having business
therein, nor shall any animals or birds be kept in or about the building.
Smoking or carrying lighted cigars or cigarettes in the elevators of the
building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any part of the
demised premises or the building of which they form a part. No boring, cutting
or stringing of wires shall be permitted, except with the prior written consent
of Owner, and as Owner may direct. No Tenant shall lay linoleum, or other
similar floor covering, so that the same shall come in direct contact with the
floor of the demised premises, and, if linoleum or other similar floor covering
is desired to be used in interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. Omitted.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease of which these Rules and Regulations are a part.
9. No Tenant shall obtain for use upon the demised premises ice, drinking water,
towel and other similar services, or accept barbering or bootblacking services
in the demised premises, except from persons authorized by Owner, and at hours
and under regulations fixed by Owner. Canvassing, soliciting and peddling in the
building is prohibited and each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the hours of 6
p.m. and 8 a.m. on business days, after 1 p.m. on Saturdays, and at all hours on
Sundays and legal holidays all persons who do not present a pass to the building
signed by Owner. Owner will furnish passes to persons for whom any Tenant
requests same in writing. Each Tenant shall be responsible for all persons for
whom he requests such pass and shall be liable to Owner for all acts of such
persons. Notwithstanding the foregoing, Owner shall not be required to allow
Tenant or any person to enter or remain in the building, except on business days
from 8:00 a.m. to 6:00 p.m., and on Saturdays from 8:00 a.m. to 1:00 p.m. Tenant
shall not have a claim against Owner by reason of Owner excluding from the
building any person who does not present such pass.
11. Owner shall have the right to prohibit any advertising by any Tenant which
in Owner's opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from Owner, Tenant
shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable, combustible or explosive fluid, material, chemical or
substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the demised
premises.
13. Tenant shall not use the demised premises in a manner which disturbs or
interferes with other Tenants in the beneficial use of their premises.
RIDER TO LOFT LEASE BETWEEN
FIRST INDUSTRIAL., L. P. , AS LANDLORD
AND
XXXXX SYSTEMS, INC., AS TENANT
41st RIDER CONTROLS:
In case of a conflict between the provisions of this rider, and the printed
provisions of this lease, the provisions of this rider shall prevail.
42nd ADDITIONAL RENT / OPERATING EXPENSES:
Any sums of money required to be paid under this lease by Tenant in addition to
the rent herein provided, shall be deemed "additional rent due and payable." It
shall be paid after demand therefore with the rent next due or as may be
otherwise provided herein. Such additional rent shall be collectible in the same
manner and with the same remedies as if they had been rents originally reserved
herein. Tenant's obligation to pay additional rent shall survive the earlier
termination and/or expiration of the term of the lease. If Landlord receives
from Tenant any payment less than the sum of the annual rental rate, additional
rent, and other charges then due and owing, Landlord, in its sole discretion,
may allocate such payment in whole or in part to any annual rental rate, any
additional rent, and/or other charge to any combination thereof. Landlord's
failure to deliver to Tenant a statement showing Tenant liability for additional
rent for any portion of the term of this lease during the term of this lease
shall neither prejudice or waive Landlord's right to deliver any such statement
for a subsequent period or to include in such subsequent period a previous
period.
43rd LATE CHARGE/RETURNED CHECK CHARGE:
(a) Tenant shall pay a late charge of 4% of any payment of rent or additional
rent or any other sum of money or payment not received by Landlord within 10
days after the same shall become due. Such late charge shall be in addition to
all of Landlord's other rights and remedies hereunder in the event of Tenant's
default and shall be payable as additional rent.
(b) If any check tendered by Tenant to Landlord is returned by the bank for
non-payment for any reason whatsoever, there will be an administrative charge of
$50.00 per check, each time it is returned which amount shall be deemed
additional rent.
44th TAXES:
(a) In the event that the Real Estate Taxes payable with respect to the building
and the land on which it is located for any tax year in which this lease shall
be in effect, shall be greater than the Real Estate Taxes for the base year, the
Tenant shall pay to Landlord on the first day of the month after billing by
Landlord to Tenant, as additional rent, an amount equal to seven and fifteen
one-hundredths (7.15%) percent of the difference between the amount of such tax
or installment for the current year and the corresponding tax or installment
paid for the base year. Any increase in Real Estate Taxes due to an increase in
the assessed valuation of the land or building of which the demised premises
forms a part by reason of improvements made by a tenant shall be borne entirely
by such tenant. Any increase in Real Estate Taxes due to an increase in the
assessed valuation of the land or building by reason of improvements made by
Tenant shall be borne by Tenant and paid by Tenant upon demand by Landlord. The
base year for this tax increase computation shall be the Fiscal Year 1999/2000
for School Taxes and the Fiscal Year 2000 for General/Town Taxes.
(b) Real Estate Taxes shall mean any and all taxes, assessments, sewer and water
rents, rates and charges, license fees, impositions, liens, fines, penalties and
all other municipal and governmental charges of any nature whatsoever (except
only inheritance and estate taxes and income taxes not herein expressly agreed
to be paid by Tenant), whether general or special; ordinary or extraordinary
foreseen or unforeseen which may presently or in the future become due or
payable or which may be levied, assessed or imposed by any taxing authority on
or with respect to all or any part of the land and building of which the demised
premises forms a part, or upon the estate or interest of Landlord in the land or
building of which the demised premises forms a part, or any part thereof,
including without limitation, all taxes and assessments for improving any
streets, alleys, sidewalks, sidewalk vaults and alley vaults, if any.
45th INSURANCE:
(a) Tenant shall, at its sole cost and expense, at all times during the term of
this lease (and any extensions thereof) obtain and pay for and maintain in full
force and effect the insurance policy or policies described in Schedule D
attached hereto. Certified copies of all insurance policies required pursuant to
this lease (or certificates thereof, in form and substance acceptable to
Landlord), shall be delivered to Landlord not less than ten (10) days prior to
the commencement of the term of this lease. If Tenant fails to submit such
policies or certificates to Landlord within the specified time, or otherwise
fails to obtain and maintain insurance coverages in accordance with this
paragraph, then Landlord, at Landlord's sole option, may, but shall not be
obligated to, procure such insurance on behalf of, and at the expense of,
Tenant. Tenant shall reimburse Landlord for such amounts upon demand, it being
understood that any such sums for which Tenant is required to reimburse Landlord
shall constitute additional rent.
(b) Tenant is hereby notified that until further notice from Landlord, the name
and address of the holder of the required insurance certificate and all
additional insureds/loss payees are set forth in Schedule "E".
46th TENANT TO PROVIDE FINANCIAL STATEMENT:
Tenant agrees that upon request by Landlord or Agent it will furnish to Landlord
and to prospective or current mortgagees of the building, and/or land of which
it forms a part, such latest available financial statement as such current or
prospective mortgagees may request.
47th BROKER:
Each party to this lease represents and warrants that no broker other than
XXXXXX & XXXXXXX, INC. was involved in this leasing. Each party to this lease
agrees to indemnify, defend, and hold harmless the other party for any and all
costs, expenses, and liability including legal fees incurred by the other party
as a result of a breach of the aforementioned warranty or any inaccuracy or
alleged inaccuracy of the above representation. Landlord agrees to pay the
broker the brokerage commission earned pursuant to a separate agreement with
said broker.
48th TENANT'S REPAIRS/MAINTENANCE:
(a) TENANT REPAIRS:
(i) Tenant agrees that, from and after the commencement date of the term of this
lease and until the end of the term, it will, at its expense, keep and maintain
in good order, condition and repair (whether extraordinary, foreseen or
unforeseen), the interior of the demised premises and every part thereof,
including but not limited to, all heating, ventilation and air conditioning
equipment located in or servicing the demised premises (including the air
conditioner compressor, lines and ducts which may be located elsewhere in the
building or on the land), interior plumbing up to the exterior walls of the
demised premises, including changes or additions to the sprinkler system and
interior electrical repairs, and plate glass, excluding those repairs and
replacements for which Landlord is responsible, as herein expressly provided in
paragraph 49th below. In addition, Tenant shall make all repairs and
replacements of any kind and nature necessitated by any act or neglect of
Tenant, its contractors, its servants, agents or employees. Tenant shall
maintain service contracts with contractors approved by Landlord for the
maintenance of the heating and air condition systems throughout the term of this
lease and shall provide Landlord with copies of all such contracts.
(ii) If Tenant does not maintain or repair such elements as provided in this
Article, the Landlord may, but shall not be obligated to, after not less than
five (5) days additional notice (except in the case of emergency) make the
necessary repair or cure the defective condition at the expense of the Tenant
and the Tenant shall reimburse Landlord promptly upon request therefor. The
amount of such reimbursement shall be considered additional rent upon the
failure of the Tenant to reimburse Landlord within five (5) days of demand
thereof.
(b) VANDALISM:
Notwithstanding any contrary provision of this lease, Tenant, at its expense (to
the extent covered by its insurance), shall make any and all repairs including
structural repairs to the demised premises which may be necessitated by any
break-in, forcible entry or other trespass into or upon the demised premises,
regardless of whether or not such entry and damage is caused by the negligence
or fault of Tenant or occurs during or after business hours.
(c) WINDOWS:
Tenant shall, at its own cost and expense, clean and maintain, including repair
or replacement when necessary, all windows in the demised premises.
(d) RUBBISH REMOVAL AND REFUSE PICK-UP:
Tenant shall independently contract for and provide for the removal at least
biweekly of all garbage, refuse and rubbish, at its cost and expense. Garbage
and refuse shall be kept in containers or dumpsters to be placed in an area
designated by Landlord for such purpose. Garbage storage and removal shall be
subject to such rules and regulations as, in the reasonable judgment of
Landlord, are necessary for the proper operation of the Property.
(e) BUILDING CLEANING:
Tenant shall, at its cost and expense, take good care of and keep clean and free
from debris both the interior and exterior area in front of the demised premises
including exterior sidewalks adjacent the demised premises in a manner
reasonably satisfactory to Landlord.
49th LANDLORD'S REPAIRS, MAINTENANCE AND CLEANING:
(a) During the term of this lease, the Landlord shall make all structural
repairs to the demised premises except those which shall have been occasioned by
the acts of omission or commission of the Tenant, its agents, employees or
invitees. Tenant shall promptly give written notice to Landlord with respect to
any damages to the interior or exterior of the demised premises. Structural
repairs are hereby defined to be and limited to repairs to the roof deck, to the
bearing walls and foundation and major repairs and replacement to the heating,
air conditioning, ventilation, plumbing and electrical systems.
(b) Landlord shall, at its expense, maintain insurance for said building in such
amounts as Landlord deems appropriate, perform landscaping, snow removal and
parking lot maintenance and maintain public hallways and public portions of
building.
(c) STANDARD OF SERVICE:
The quality and level of service to be provided by Landlord shall be in
accordance with Landlord's standard for the Property.
50th LANDLORD'S WORK:
Landlord shall, if required hereunder, alter the demised' premises for the
Tenant in accordance with and subject to the terms of Landlord's Work Criteria
annexed hereto as Schedule B. Tenant shall submit a written list of incomplete
and incorrect items which Landlord is obligated to complete or correct within
ten (10) days after substantial completion of such work except for seasonable
items which shall be submitted to Landlord within thirty (30) days after same
are reasonably discoverable by Tenant. Failure to submit such list within the
time stated shall be deemed acceptance by Tenant of such incorrect or incomplete
items "as is". In all other respects, Tenant accepts the demised premises in "as
is" condition and Tenant acknowledges that Landlord makes no representation as
to the condition thereof, except as herein set forth.
5lst TENANT RESTRICTIONS:
(a) STORAGE/PARKING:
Tenant will not, at any time, use or occupy the area outside the demised
premises for storage of materials or for the overnight parking of vehicles of
any kind without the landlord's prior written consent which may be arbitrarily
withheld. Furthermore, Tenant will not at any time park vehicles in any manner
which will obstruct or interfere with the ingress or egress of other vehicles or
with the use by other tenants of their respective parking and loading facilities
or areas or cause any other parking problems.
(b) Tenant shall have the right to use in common with the other tenants in the
building parking spaces as provided by Landlord in the parking lot for the
parking of Tenant's automobiles and those of its employees and invitees subject
to the reasonable rules and regulations now or hereafter adopted by the
Landlord.
(c) NOISE/ODORS:
Tenant covenants and agrees that throughout the demised term it shall not
suffer, allow or permit any offensive or obnoxious vibration, noises, odor, or
other undesirable effect to emanate from the demised premises, to constitute a
nuisance or otherwise unreasonably interfere with the safety, comfort or
convenience of Landlord or of any other occupants of the building of which the
demised premises forms a part, and upon Landlord's notice thereof to Tenant,
Tenant shall, within five (5) days thereof, eliminate or control same. If any
such condition is not so remedied then Landlord may at its discretion either:
(a) remedy such condition and any cost and expense incurred by Landlord
therefore shall be deemed additional rent and paid by Tenant to Landlord
together with the next installment of rent due hereunder, or (b) treat such
failure on the part of the Tenant to remedy such condition as a material default
under the provisions of this lease on the part of the Tenant hereunder,
entitling Landlord to any of its remedies, pursuant to the terms of this lease.
In no event, however, shall the Tenant make any alteration, addition or
structural installation in or to the premises or any parts thereof to remedy or
cure such default without the prior written consent of the Landlord.
(d) TOXIC/HAZARDOUS WASTES:
(i) Tenant shall not cause or permit any Hazardous Material (as hereinafter
defined) to be brought upon, kept or used in or about the demised premises by
Tenant, its agents, employees, contractors or invitees. Tenant further covenants
and agrees that it shall not discharge any Hazardous Material in the ground or
sewer disposal system. If Tenant breaches the obligations stated in the
preceding sentences, or if the presence of Hazardous Material on the demised
premises permitted, caused or brought upon or kept by Tenant, its agents,
employees, contractors or invitees, results in contamination of the demised
premises or any other part of the building or land of which it forms a part or
if there is such a discharge, then Tenant shall (A) immediately give Landlord
written notice thereof, and (B) indemnify, defend and hold harmless Landlord
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses (including, without limitation, diminution in value of the
demised premises or the building or land of which it forms a part, loss or
restriction on use of space in the building of land of which it forms a part,
adverse impact on marketing, sums paid in settlement of claims, attorneys',
consultants' and other expert fees) which arise during or after the term as a
result of such breach, contamination, or discharge. The foregoing
indemnification includes, without limitation, costs incurred in connection with
any investigation of site conditions or any clean-up, remedial, removal or
restoration work requited by any federal, state or local governmental agency or
political subdivision. Without limiting the foregoing, if the presence of any
Hazardous Material within the demised premises caused or permitted by Tenant
results in any contamination of the demised premises or any other part of the
building or land of which it forms a part, Tenant shall promptly take all
actions at its sole expense as are necessary to return the demised premises or
any other part of the building or land of which it forms a part to the condition
existing prior to the introduction of any such Hazardous Material.
(ii) As used herein, the term "Hazardous Material" mean: (A) asbestos, petroleum
products, and polychlorinated biphenyls, and (B) hazardous or toxic materials,
wastes and substances which are defined, determined or identified as such
pursuant to all present and future federal, state or local laws, rules or
regulations and judicial or administrative interpretations thereof (collectively
"Governmental Laws").
(iii) Landlord and its agents shall have the right, but not the duty, to inspect
the demised premises at any time to determine whether Tenant is complying with
the terms of this Article. If Tenant is not in compliance with the provisions of
this Article, Landlord shall have the right to immediately enter upon the
demised premises to remedy said noncompliance at Tenant's expense and any
expense incurred by Landlord shall be paid by Tenant upon demand and shall be
deemed additional rent. Landlord shall use its best efforts to minimize
interference with Tenant's business, but shall not be liable for any
interference caused thereby.
52nd LIMITATION OF LANDLORD'S LIABILITY:
(a) Tenant shall look solely to the then interest of Landlord in the building
and land of which it forms a part or to the then interest of the owner therein
(if Landlord is the agent of such owner) for the satisfaction of any remedy of
Tenant for Landlord's or such owner's failure to perform any of the obligations
of the Landlord hereunder. Neither Landlord nor any disclosed or undisclosed
principal of Landlord (or officer, director, stockholder, partner or agent of
Landlord or of any such principal) shall have any personal liability for any
such failure under this lease or otherwise.
(b) There shall be no merger of Landlord's estate in the demised premises with
Tenant's estate therein by reason of the fact that the same individual,
partnership, firm or corporation or their entity may acquire or own such estates
directly or indirectly. No such merger shall occur until all individuals,
partnerships, firms, corporations and other entities having any interest in such
estates, including any mortgagee, join in a written instrument effecting such
merger and duly record it.
53rd UTILITIES:
(a) Upon the execution hereof, Tenant must make immediate application to the
appropriate utility company for electric and/or gas service and Tenant shall
forthwith deliver to Landlord a true copy of such application with proof of
payment of any deposit required by such utility company for electric service and
gas service. (b) Notwithstanding anything previously written anywhere in this
lease, Tenant shall bear the cost and expense of:
(i) all electricity in their demised premises.
(ii) fuel for heating purposes in their demised premises.
54th TENANT'S FAILURE TO VACATE:
In the event the Tenant does not vacate the demised premises upon the expiration
date of this lease, or upon the expiration of any extension or renewal thereof,
then and in that event the Tenant shall remain as a month to month Tenant at a
monthly rental double the monthly rent plus l/12 of the previous year's charges
for all additional rent due under this lease paid in the last month of the term
payable as aforesaid. The acceptance by the Landlord of such rental after the
expiration date of this lease shall not be construed as consent to such
continued occupancy.
55th ASSIGNMENT/SUBLET:
Tenant covenants that it shall not assign this lease nor sublet the demised
premises or any part thereof without the prior written consent of Landlord in
each instance, which consent shall not be unreasonably withheld to an assignment
or subletting provided:
(a) Such assignment or sublease shall be for a use which is in compliance with
the then existing zoning regulation's and the Certificate of Occupancy for the
demised premises or the building, and consistent with the use hereinabove set
forth;
(b) At the time of such assignment or subletting, Tenant shall not be in default
under the terms, covenants, agreements and conditions of this lease;
(c) In the event of an assignment, the assignee must assume in writing the
performance of all of the terms, covenants, conditions, agreements and
obligations of the within lease;
(d) A duly executed duplicate original of said assignment or sublease must be
delivered by Certified Mail, Return Receipt Requested to the Landlord at the
address herein set forth not less than ten (10) days before the date of said
assignment or sublease;
(e) Such assignment or subletting shall not, however, release the within Tenant
from its liability for the full and faithful performance of all of the terms
covenants, agreements, and conditions of this lease, including the payment of
rent and additional rent;
(f) If this lease shall be assigned, or if the demised, premises or any part
thereof be sublet, underlet or occupied by anyone other than Tenant, Landlord
may after default by Tenant, collect rent from the assignee, subtenant,
undertenant or occupant, and apply the net amount collected to the rent herein
reserved or additional rent due hereunder.
(g) Notwithstanding anything contained in this paragraph to the contrary, no
assignment, subletting, or underletting shall be made by the Tenant in any event
to an existing tenant of Landlord.
(h) Such notice of proposed assignment or proposed sublet shall be deemed
Tenant's offer to terminate this lease as of the last day of the calendar month
during the term hereof immediately preceding the commencement of such sublease
or the effective date of such assignment and to vacate and surrender the demised
premises to Landlord on the date fixed in the notice. If Landlord within thirty
(30) days after the receipt thereof has not accepted in writing the offer by
Tenant to cancel and terminate said lease and to vacate and surrender the
demised premises, the lease shall remain in full force and effect and Landlord
shall not unreasonably withhold its consent to the proposed assignment or
sublet.
(i) As additional security for the prompt payment of the rent herein reserved to
Landlord, and for the faithful performance and punctual observance of all the
other terms, covenants, agreements, and conditions herein contained, Tenant
hereby assigns to Landlord all of Tenant's rights, title, and interest in and to
any sublease which may be made by Tenant affecting the demised premises, or any
part thereof, and in and to the rents due or to become due under the terms of
any such sublease. The aforesaid assignment shall take effect, however, only in
the event of any default hereunder made or suffered by Tenant and after written
notice given by Landlord to the subtenant or subtenants, as the case may be, and
shall take effect as to such of said subleases as Landlord shall elect to
continue in full force and effect.
(j) If Tenant assigns this lease or sublets the demised premises in violation of
the provisions of this Article 55, Landlord may, without waiving any other
rights or remedies, elect to double the annual rental rate payable under the
terms of this lease for the period of such unlawful occupancy commencing with
the date of such assignment or subletting.
56th COMMENCEMENT DATE:
In the event that the term of this lease commences on a date other than the
first of the month, the rent for the second month shall be prorated, and the
rent for the third month shall commence on the first day of the month.
57th TERMINATION:
At the expiration of the term of this lease or upon the early termination of
this lease, Tenant shall deliver to Landlord any and all equipment belonging to
Landlord in working condition, ordinary wear and tear excepted, including
equipment installed or replaced by the Tenant. The Tenant further agrees to
deliver to Landlord any and all guarantees on new and replaced equipment.
58th DEFAULT:
Notwithstanding any provisions in the lease permitting Tenant to cure any
default within a specified period of time, if Tenant shall default (i) in the
timely payment of rent or additional rent, and such default shall continue or be
repeated for two consecutive months or for a total of four months in any period
of twelve months or (ii) in the performance of any material term, condition or
covenant of this lease more than two times in any period of six 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 cancel or terminate
this lease as provided in Article 17 hereof without affording to Tenant an
opportunity to cure such further default.
59th MISCELLANEOUS:
(a) This lease is transmitted for examination only and does not constitute an
offer to lease. This lease shall become effective only upon execution hereof by
the parties hereto and delivery of the executed lease to Landlord by Tenant.
(b) This instrument contains the entire and only agreement between the parties.
No oral statements or representations or prior written matter not contained
herein shall have any force or effect.
(c) This lease shall not be modified, changed, or amended in any way or
canceled, terminated or abridged except by a writing subscribed by both parties.
(d) Any reference in the printed portion of this lease to the City of New York
and the Administrative Code of the City of New York shall, where applicable, be
deemed to refer to the ordinances, rules and regulations of the county, town,
village and other governmental authorities with jurisdiction over the demised
premises.
(e) 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 enforced to the fullest extent permitted by law.
(f) This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(g) Neither this lease nor any memorandum hereof shall be recorded without
Landlord's prior written consent.
(h) Each provision of this Lease which requires the consent or approval of
Landlord shall be deemed to require the same in each instance in which such
provision may be applicable. Any consent or approval by Landlord to or of any
act or omission by Tenant requiring Landlord's consent or approval shall not be
deemed to waive any future requirement for such consent or approval to or of any
subsequent similar act or omission.
60th Not used.
61st Not used.
62nd LIEN PROHIBITION:
Nothing contained in this lease shall be deemed to be, or construed in any way
as constituting, the consent of Landlord to any person for the performance of
any labor or the furnishing of any materials at or to the demised premises or
the building and land of which the demised premises are a part, nor as giving
Tenant any right, power or authority to contract or permit the performance of
any labor or the furnishing of any material which might give rise to the right
to record or file a lien against the demised premises or the real property of
which the demised premises are a part or against the interests therein of
Landlord or Tenant, it being intended that all persons who may perform any labor
or furnish any materials to Tenant at the demised premises shall look only to
the credit of Tenant and such security as Tenant may furnish to such persons for
the payment of all such labor and materials. Landlord does not consent to the
recording or filing of any mechanics' or other liens against the leased premises
or the real property of which the demised premises are a part or the interest of
Landlord or Tenant therein.
63rd NOTICES:
Any notice required to be given by either party pursuant to this lease, shall be
in writing and shall be deemed to have been properly given, rendered or made
only if personally delivered, or if sent by Federal Express or other comparable
commercial overnight delivery service, addressed to the other party at the
addresses set forth below (or to such other address as Landlord or Tenant may
designate to each other from time to time by written notice), and shall be
deemed to have been given, rendered or made on the day so delivered or on the
first business day after having been deposited with the courier service:
If to Landlord: First Industrial, L.P.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxxxxx 00000
Attn: Vice President -Portfolio Management
With a copy to: First Industrial Realty Trust, Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attn: Regional Director
With a copy to: Barack, Xxxxxxxxxx, Xxxxxxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxx-Xxxxx
If to Tenant: At the demised premises or as set forth below.
64th RENT PAYMENTS:
All rent and additional rent and all other sums and charges due under this
lease, shall be paid to Landlord in accordance with the payment directions
attached hereto as Schedule C or pursuant to such other directions as Landlord
shall designate in this lease or otherwise.
65th SUBORDINATION AND ATTORNMENT:
(a) Subject to the provisions of paragraph 65th(d) below, this lease, and all
rights of Tenant hereunder, are subject and subordinate to all ground leases of
the land and building of which the demised premises forms a part (the
"Property") now or hereafter existing and to all mortgages or trust deeds or
deeds of trust and all renewals, modifications, replacements and extensions
thereof; and to all "Spreaders" and consolidations thereof (all of which are
hereafter referred to collectively as "Mortgages"), that may now or hereafter
affect or encumber all or any portion of Landlord's interest in the Property.
This subordination shall apply to each and every advance made, or to be made,
under such Mortgages. This paragraph shall be self-operative and no further
instrument of subordination shall be required, however, in confirmation of such
subordination, Tenant shall, from time to time, execute acknowledge and deliver
any instrument that Landlord may, from time to time, reasonably require in order
to evidence or confirm such subordination. If Tenant fails to execute,
acknowledge or deliver any such instrument within twenty (20) days after request
therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, which appointment is coupled with an interest, to
execute and deliver any such instruments for and on behalf of Tenant. Tenant
acknowledges that this lease and the rents due under this lease have been (and,
in the future, may be) assigned by Landlord to a Superior Mortgagee (defined
below) as additional collateral security for the loans secured by the Superior
Mortgage (defined below) held by such Superior Mortgagee. Any ground lease to
which this Lease is subject and subordinate is hereafter referred to as a
"Superior Lease", the Lessor under a Superior Lease is hereinafter referred to
as a "Superior Lessor," and the lessee thereunder, a "Superior Lessee" and any
Mortgage to which this Lease is subject and subordinate is hereinafter referred
to as a "Superior Mortgage" and the holder of a Superior Mortgage is hereinafter
referred to as a Superior Mortgagee.
(b) In the event that Landlord breaches or otherwise fails to timely perform any
of its obligations under this lease, Tenant shall give, by registered or
certified mail, return receipt requested, written notice of such alleged breach
or default to Landlord and to each Superior Mortgagee and Superior Lessor whose
name and address shall previously have been furnished, in writing, to Tenant.
Any or all of Landlord, a Superior Mortgagee or Superior Lessor may remedy or
cure such breach or default within thirty (30) days following the giving of such
notice; provided, however, that said thirty (30) day cure period shall be
automatically extended in the event that the breach or default cannot, by its
nature, be cured within thirty (30) days and one or more of Landlord, the
Superior Mortgagee or the Superior Lessor is diligently proceeding to cure said
default.
(c) If any Superior Lessor or Superior Mortgagee (whether by receiver or
otherwise) shall succeed to the rights of Landlord hereunder or comes into
possession of the Property or any part thereof, then, at the request of such
party (hereinafter referred to as a "Successor Landlord"), Tenant shall attorn
to and recognize each Successor Landlord as Tenant's landlord under this lease
and shall promptly execute and deliver any instrument such Successor Landlord
may reasonably request to further evidence such attornment. Tenant hereby
acknowledges that in the event of such succession, then from and after the date
on which the Successor Landlord acquires Landlord's rights and interest under
this lease (the "Succession Date"), the rights and remedies available to Tenant
under this Lease with respect to any obligations of any Successor Landlord shall
be limited to the equity interest of the Successor Landlord in the Property; and
the Successor Landlord shall not (i) be liable for any act, omission or default
of Landlord or other prior lessor under this lease if and to the extent that
such act, omission or default occurs prior to the Succession Date; (ii) except
as required under Paragraphs 49 and Paragraph 9 of this lease, be required to
make or complete any tenant improvements or capital improvements or to repair,
restore, rebuild or replace the demised premises or any part thereof in the
event of damage casualty or condemnation; or (c) be required to pay any amounts
to Tenant that are due and payable, under the express terms of this lease prior
to the Succession Date. Additionally, from and after the Succession Date.
Tenant's obligation to pay the annual rental, rate or additional rent or any
other sum due the Landlord under this lease, shall not be subject to any
abatement, deduction, set-off or counterclaim against the Successor Landlord
that arises as a result of, or due to, a default of Landlord or any other lessor
that occurs prior to the Succession Date. Moreover, no Successor Landlord shall
be bound by any advance payments of the annual rental rate or additional rent or
any other sum due the Landlord under this lease made prior to the calendar month
in which the Succession Date occurs nor by any Security that is not actually
delivered to, and received by, the Successor Landlord. The provisions of this
Paragraph 65th(c) shall be self operative upon demand of such Superior Lessor or
Superior Mortgage and no further instrument shall be required to give effect to
such provisions.
(d) It is agreed that as to any Superior Mortgage hereafter placed on the
demised premises, the subordination provided for above shall extend only to and
advances made thereunder under which the Superior Mortgagee by agreement in the
Superior Mortgage or in a separate instrument in form and substance reasonably
acceptable to such mortgagee and in such mortgagee's standard form (a "Non-
Disturbance Agreement") contracts to the effect that, if there shall be a
foreclosure of its mortgage, such mortgagee will not make Tenant a party
defendant to such foreclosure, evict Tenant, disturb Tenant's possession under
this lease or terminate or disturb Tenant's leasehold estate or rights provided
under this lease, provided no default beyond any applicable notice and grace has
occurred hereunder which remains uncured. Landlord shall use its reasonable
efforts to obtain such a Non-Disturbance Agreement from its present mortgagee.
Tenant shall bear the cost of such mortgagee in obtaining such agreement.
66th. The security referred to in paragraph 32 hereof shall bear interest at the
then money market account rate of Citibank, N.A. for commercial accounts less
Landlord's administrative fee of one (1%) percent and Landlord shall remit the
interest to Tenant annually.
67th The heating, ventilating, air-conditioning, electrical, plumbing, sprinkler
systems and overhead doors shall be in working order upon the commencement of
the term of this lease.
68th Landlord represents that the rated rentable area of the demised premises,
as calculated in the method approved by the Real Estate Board of New York, Inc.,
is approximately 15,722 square feet and the rated rentable area of the building
is approximately 220,000 square feet.
69th Supplementing Article 4 of this lease, if a vermin infestation arises from
outside of the demised premises, Landlord, not Tenant, shall exterminate same at
Landlord's expense.
70th In the exercise of any of its rights under paragraph 19, Landlord shall use
reasonable efforts to avoid interference with Tenant's use of the demised
premises and except in an emergency provide reasonable advance telephonic notice
before exercising such rights. Landlord agrees that if such repairs, other than
for repairs Landlord is making as a result of Tenant's failure to make such
repairs, damage any part of the demised premises, then Landlord shall repair and
restore the damaged portion of the demised premises.
71st Supplementing Article 10 hereof, Tenant may seek a separate award for
moving expenses, fixtures and movable equipment provided such claim shall not in
any way delay or diminish Landlord's award.
72nd Landlord, not Tenant, shall cure any violations that affect the demised
premises on the date of delivery of possession to Tenant of the demised
premises.
73rd If Landlord shall receive a refund of any portion of the Real Estate Taxes
payable during any lease year after the base year for the Real Estate Taxes as a
result of a reduction of said Real Estate Taxes by final determination of legal
proceedings, settlement or otherwise (for which Tenant shall have paid
additional rent, as provided in this lease), after receiving the refund,
Landlord shall pay to Tenant its proportionate share of the refund less all of
the expenses (including, but not limited to, attorneys' and appraisers' fees)
incurred in connection with obtaining the refund, provided Tenant is not in
default after notice and applicable grace period under this lease at the time of
receipt of such refund.
74th Anything to the contrary herein notwithstanding, the Tenant is given
permission to erect a sign over the entrance door of the demised premises
provided:
(a) Said sign shall comply with all rules and regulations of any governing
authorities having jurisdiction thereof.
(b) Said sign shall not interfere with the signs of any other tenants.
(c) Said sign shall be installed without damage to the building.
(d) Said sign shall be subject to the prior written approval of the Landlord
which approval shall not be unreasonable withheld or delayed, it being the
intention of the Landlord that the signs to be erected by the tenants of the
building shall conform to a uniform format and plan.
(e) Said sign may include Tenant's logo.
75th Tenant may make non-structural alterations in a good and workmanlike manner
using new materials and in the manner permitted by this lease without the
consent of Landlord (however, Tenant shall notify Landlord of such changes prior
to the commencement of any work), provided the cost of such alterations shall
aggregate in any instance or in any twelve month period is less than $15,000.00
and provided such alterations do not affect the systems of the building. In all
other instances, the Landlord shall not unreasonably withhold or delay its
consent to such non-structural alterations which do not increase the square
footage of the demised premises, will not endanger or impair the building or the
demised premises and do not diminish the value of the building. All plans
prepared by Tenant (where Landlord's consent is required) in connection with
such alterations shall be delivered to Landlord prior to commencement of any
work by Tenant. Tenant shall also obtain, when appropriate, final ''as built"
plans for all such work and provide copies thereof to Landlord. Landlord shall
cooperate with Tenant (but without being obligated to incur any expense thereby)
in connection with any application for permits, approvals and certificates and
shall execute the same upon request by Tenant. Tenant shall pay the reasonable
costs incurred by Landlord to review its plans and proposed alterations,
including, without limitation, Landlord's reasonable legal and architectural
expenses.
76th Tenant shall have the right, subject to the terms and conditions
hereinafter set forth without the consent of Landlord, to assign its interest in
this lease to (i) a corporation or other entity which shall (A) control Tenant;
(B) be under the control of or be under common control with Tenant and/or Xxxxx
Systems Inc.; or (C) any corporation or entity with which Tenant consolidates or
merges (any such entities or any corporation with which Tenant consolidates or
merges being a "Related Entity"). Tenant may also sublease all or any portion of
the demised premises to a Related Entity without the consent of Landlord. Any
assignment or subletting described above may only be made upon the condition
that (i) any such assignee or subtenant shall continue to use the demised
premises for uses permitted by Article 2; (ii) the principal purpose of such
assignment or sublease is not the acquisition of Tenant's interest in this lease
(except if such assignment or sublease is made to a Related Entity and is made
for a valid intracorporate business purpose and is not made to circumvent the
provisions of Article 2 or Article 55th).Tenant shall within ten (10) days after
execution thereof deliver to Landlord (i) a duplicate original instrument of
assignment in form and substance reasonably satisfactory to Landlord, duly
executed by Tenant; (ii) a duplicate original instrument of assignment in form
and substance reasonably satisfactory to Landlord, duly executed by the
assignee, in which such assignee shall assume observance and performance of, and
agree to be personally bound by, all of the terms, covenants and conditions of
this lease, on Tenant's part to be observed and performed from and after the
date of such assignment; or (iii) a duplicate original sublease in substance
reasonably satisfactory to Landlord, duly executed by Tenant and the subtenant.
77th In making repairs, alterations, additions or improvements under Article
0xx, Xxxxxxxx shall use commercially reasonable efforts to minimize disruption
of Tenant's business operations. If Landlord shall fail to comply with the
provisions of Article 4th other than for reasons beyond the control of Landlord
and solely by reason thereof, the conduct of Tenant's normal business operations
in all or part of the demised premises shall be materially impaired and such
impairment shall continue for more than ten successive days, then Tenant, if
Tenant shall vacate the affected portion of the demised premises, shall be
entitled to an abatement of all the annual rental rate and additional rent for
each day thereafter of such actual impairment, allocable, in the case of a
partial impairment, to the portion of the demised premises so affected, if and
only if, insurance cannot be obtained by Tenant to compensate Tenant for the
loss of the use of the demised premises during such period.
78th In the exercise of its rights under paragraph 13th, Landlord shall promptly
repair at Landlord's cost and expense, any damage caused by Landlord during the
course of such work and/or entry onto the demised premises and shall restore the
demised premises as nearly as practicable to the condition existing prior to
such installation, in keeping with the decor of the demised premises. In the
event that after the completion of any such work the usable square footage of
the demised premises shall be thereby reduced, then the annual rental rate shall
be proportionately reduced from and after the completion of such work according
to the part of the demised premises which remains usable. Landlord will use
commercially reasonable efforts in the performance of such work in the demised
premises to not unreasonably interfere with or disrupt Tenant's conduct of its
business in the demised premises.
79th Notwithstanding anything to the contrary in paragraph 35 hereof, if any
excavation materially obstructs the business of Tenant, then Tenant shall be
entitled to an abatement of the annual rental rate prorated for the portion of
the demised premises, which Tenant is unable to use during such period of
obstruction and which Tenant actually vacates during such period of obstruction.
80th The period stated in paragraph 36 as 15 days, is changed to 30 days.
81st In no event shall Landlord act as Tenant's attorney-in-fact in any case
referred to in this lease.
82nd Landlord represents that the use of the demised premises for warehousing,
light manufacture, assembly, and incidental offices complies with the
certificate of occupancy for the building. Landlord further represents that to
its knowledge such use will not cause an increase in the rate of insurance for
the demised premises. Any violation of the provisions hereof shall not entitle
Tenant to a claim of money damages (other than moving expenses) or consequential
damages against Landlord and shall not be enforceable against Landlord after the
first year of this lease. Tenant's sole remedy shall be the termination of this
lease after failure by Landlord to remedy such violation within thirty (30) days
after notice thereof or to commence to cure such violation within said thirty
(30) days and diligently pursue same to completion at Landlord's sole option.
83rd Notwithstanding anything to the contrary contained in this lease, no
modification, addition or improvement to the building or the common areas shall
permanently change the location, size, or configuration of the demised premises
or materially deny access to any portion of the demised premises to Tenant.
84th (a) Landlord agrees to indemnify and hold Tenant harmless from and against
any and all claims, demands, costs and expenses, including reasonable attorney's
fees and disbursements for the defense thereof, other than consequential
damages, arising from any breach or default on the part of Landlord in the
performance of any covenants or agreements to be performed by Landlord pursuant
to the terms of this lease, or from any negligent acts or omissions of Landlord,
its agents, contractors, employees, invitees or assigns. In case any such action
or proceeding is brought against Tenant by reason of such claim, promptly after
notice from Tenant of such claim, Tenant covenants to defend such action or
proceeding by legal counsel reasonably satisfactory to Landlord. Landlord shall
not be held harmless for its negligence or contributory negligence or willful
misconduct or that of its agents, contractors, employees, invitees or assigns.
(b) Tenant agrees to indemnify and hold Landlord harmless from and against any
and all claims, demands, costs and expenses, including reasonable attorney's
fees and disbursements for the defense thereof, other than consequential
damages, arising from any breach or default on the part of Tenant in the
performance of any covenants or agreements to be performed by Tenant pursuant to
the terms of this lease, or from any negligent acts or omissions of Tenant, its
agents, contractors, employees, invitees or assigns. In case any such action or
proceeding is brought against tenant by reason of such claim upon notice from
Landlord of such claim, Tenant covenants to defend such action or proceeding by
legal counsel reasonably satisfactory to Landlord. Landlord shall not be held
harmless for its negligence or contributory negligence or willful misconduct or
that of its agents, contractors, employees, invitees or assigns.
85th In the event the parties hereto become involved in a proceeding to enforce
this lease, or the rights, duties or obligations hereunder, then the prevailing
party in such proceeding shall be entitled to receive as part of any award,
reasonable attorney fees and disbursements.
86th Where Landlord's consent is required, in the event Landlord fails to
respond to a request for consent within thirty (30) days after written demand,
such request shall be deemed granted.
87th Wherever Landlord has reserved the right in this lease to enact rules and
regulations, such rules and regulations shall be reasonable and applied
uniformly and equally to all tenants.
88th All trade fixtures, machinery, equipment signs, inventory and personal
property of Tenant shall remain the sole property of Tenant throughout the term
of thus lease and shall not be subject to any liens by Landlord during the term
of this lease, unless this lease shall be terminated by Landlord and Tenant
shall not have removed same prior to such termination.
89th TRANSFER SECURITY FROM A PREVIOUS LEASE:
Tenant shall be credited with security in the amount of $20,350.00 heretofore
deposited with the Landlord pursuant to its lease dated January 19, 1995 for
premises at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx. No amount shall be deposited
at the time of execution of this lease.
90th Within a reasonable time after the Commencement Date, Landlord and Tenant
shall execute and exchange duplicate original instruments which shall fix for
all purposes the Commencement Date and Expiration Date, however, failure to
execute such instruments shall not affect, delay or impair the performance by
Landlord or Tenant of their obligations hereunder including the payment of all
rent.
91st TENANT'S PARKING:
Landlord shall provide Tenant with ten (10) reserved parking spaces in the
parking lot of the Property. Additionally, the use of these parking spaces by
Tenant is subject to compliance with all applicable provisions of this lease
including paragraph 51st(a) and (b).
92nd. Landlord states that the Property: to its knowledge, is free from
Hazardous Materials, including, without limitations, asbestos, which would
interfere with the use of the demised premises by Tenant as permitted by this
lease or which would affect the health or well being of its employees or
invitees. Landlord shall indemnify, defend and hold harmless Tenant from any and
all claims, judgments, damages, penalties, fines, costs, liabilities or losses
(other than consequential damages) Tenant may incur or suffer resulting from or
arising from any Hazardous Condition or Hazardous Materials presently in
existence at the Property or any Hazardous Condition or Hazardous Material
brought to the Property by Landlord, its employees, agents or invitees
hereafter.
FIRST INDUSTRIAL, L.P., a Delaware
Limited Partnership
BY: FIRST INDUSTRIAL REALTY TRUST, INC., a Maryland
Corporation, General Partner
BY: __________________________________
XXXXX SYSTEMS, INC.
BY: __________________________________
