LEASE
BETWEEN
65 RUSHMORE REALTY, LLC as Landlord
AND
DIONICS INC., as Tenant
Dated as of: July 27, 2005
Premises: 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
Table of Contents
Article Page
1 Premises -- Term of Lease 1
2 Definitions 2
3 Rent 5
4 Taxes and Other Charges (Impositions) 9
5 Late Charges 12
6 Insurance 12
7 Casualties, Restoration and Use of
Fire Insurance Proceeds 15
8 Tenant's Right to Make Alterations 16
9 General Requirements Regarding Alterations 16
10 Assignment and Subleasing 18
11 Mortgage 19
12 Repairs 20
13 Early Termination Of Lease 21
14 Compliance with Legal Requirements
And Insurance Requirements 21
15 Fixtures and Articles of Personal Property 21
16 Discharge of Liens 22
17 Condition and Title of the Premises 23
18 Leasehold Mortgages 24
19 Landlord Not Liable for Injury or Damage;
Indemnification of Landlord 24
20 Landlord's Right of Inspection 24
21 Landlord's Right to Perform Tenant's Covenants 25
22 Permitted Use; No Unlawful Occupancy 26
23 Defaults, Conditional Limitations, Remedies, etc. 26
24 Notices 29
25 Condemnation 30
26 Security Deposits 32
27 Limitation of Liability 32
28 Excavations and Shoring 32
29 Estoppel Certificates by Landlord and Tenant 33
30 Landlord's Consents 33
31 Surrender at End of Term 33
32 No Oral Agreements 34
33 Quiet Enjoyment 34
34 Compliance with Covenants, Restrictions
And Easements 34
35 Financial Reports 35
36 Intentionally Omitted 35
37 Recording of Memorandum 35
38 Miscellaneous 35
39 Broker 38
LEASE
THIS LEASE (the "Lease") made as of the 27th day of July 2005,
between 65 Rushmore Realty, LLC duly authorized to do business in the
State of New York, with an office at 00-00 Xxxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Landlord") and
Dionics, Inc. with an office at 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx (hereinafter referred to as "Tenant");
ARTICLE 1
Premises - Term of Lease
Section 1.01.
Landlord, in consideration of the premises and of the rents
hereinafter reserved and of the covenants, agreements and conditions
herein contained, to be kept and performed on the part of Tenant,
hereby leases to Tenant and Tenant hereby hires and leases from
Landlord all that certain lot, piece or parcel of land, together with
the "Building" (hereinafter defined) thereon, situate, lying and
being at Westbury in the County of Nassau, and State of New York
(collectively the "Premises"), known as and located at 00 Xxxxxxxx
Xxxxxx, together with the "Equipment" (hereinafter defined); together
with Landlord's interest in all strips and gores, if any, adjoining
the above described land; together with Landlord's interest, if any,
in and to any vault space and land lying in the bed of any street or
avenue in front of or adjoining the above described land; and
together with the rights, privileges and easements appurtenant to the
land subject to: (i) the terms and conditions of this Lease; and (ii)
Landlord's right to mortgage its fee estate in the Premises;
Subject, further, to the following:
1. Any state of facts an accurate survey would show.
2. All "Legal Requirements" (hereinafter defined) including,
without limitation, building restrictions and regulations now or
hereafter in force and present and future zoning laws, ordinances,
resolutions and regulations of all boards, and/or environmental
bureaus, commissions, and bodies of municipal, county, state or
federal sovereigns now or hereafter having or hereafter acquiring
jurisdiction of the Premises and the use and improvement thereof;
3. Presently existing rights, easements, licenses or privileges
to use or maintain vaults, areas, tunnels, ramps or structures under
xxxxxxxx, xxxxx, xxxxxxx, xxxxxxx or sidewalks on which the Premises
abut, and consents or grants prior to the date of this Lease for the
erection of any structures on, under or above said xxxxxxxx, xxxxx,
xxxxxxx, xxxxxxx or sidewalks, and any grants, licenses or consents
with respect to sewers, public utility lines, pipes, conduits and
equipment;
4. Violations of law, ordinances, regulations, orders or
requirements, if any, whether or not of record and whether or not the
same might be disclosed by an examination and inspection or search of
the Premises, by any federal, state, municipal or other governmental
department or authority having jurisdiction, as the same may exist on
the date hereof and/or on the date of the commencement of the term of
this Lease including without limitation violations of any Local Laws
of the City of New York;
5. The condition and state of repair of the Premises on the date
of the commencement of the term of this Lease;
6. All taxes, assessments, water charges, rates and rents accrued
or unaccrued, fixed or not fixed, subject to apportionment;
7. The revocable nature of any right to maintain vaults, vault
spaces, basements and basement spaces, marquees or signs;
8. Dedications, restrictions, covenants consents, easements and
agreements of record;
9. Any encroachments existing on the date of commencement of the
term of this Lease;
10. Unpaid franchise or business corporation taxes of any
corporation in the chain of title shall not be an objection to title
provided that Tenant's title company agrees to insure against
collection out of the Premises on Tenant's policy of leasehold title
insurance;
TO HAVE AND TO HOLD the Premises, subject as aforesaid unto
Tenant, and, subject to the provisions hereof, Tenant's successors
and permitted assigns, for a term of seven (7) years commencing on
the "Commencement Date" (as hereinafter defined) and expiring on the
last day of the month in which occurs the seventh anniversary of the
Commencement Date (unless the Commencement Date is the first of the
month in which event the term shall expire on the day preceding the
seventh anniversary of the Commencement Date) "Expiration Date,"
unless this Lease shall be sooner terminated or extensions are
granted as hereinafter provided.
ARTICLE 2
Definitions
Section 2.01.
The terms defined in this Article shall, for all purposes in
this Lease and all agreements supplemental hereto have the meanings
herein specified.
(a) "Land" shall mean the parcel of land described in section
1.01.
(b) "Premises" shall mean the premises described in Section
1.01. hereof.
(c) "Building" shall mean any and all improvements structures,
Equipment and fixtures, of every kind and description (other than
personal property of subtenants, property contractors servicing the
Building, and improvements for water, gas and electricity and other
similar equipment or improvements owned by any public utility company
or any governmental agency body) now or at any time hereafter
erected, constructed, affixed or attached to or placed in or placed
upon the Land or improvements or structures thereon, or used for or
adapted in any way to the use, enjoyment, occupancy and operation of
the land or the improvements and structures thereon, and any and all
alterations, renewals and replacements thereof, additions thereto and
substitutes therefore.
(d) "Commencement Date" shall mean July 27, 2005.
(e) "Equipment" shall mean Landlord's interest in any machinery,
apparatus, equipment, personal property and fixtures of every kind
and nature whatsoever heretofore or hereafter attached to or used in
connection with the operation or maintenance of the Building and
shall include, but shall not be limited to, all machinery, engines,
dynamos, boilers, elevators, air conditioning compressors, ducts,
pipes and conduits, units and equipment, heating and hot water
systems, pipes, plumbing, wiring, gas, steam, water and electrical
fittings, ranges and radiators and any and all alterations,
additions, improvements, restorations and replacements of any thereof
attached to or used in connection with the Land or any improvement
thereon.
(f) "Unavoidable Delays" shall mean delays due to causes and
conditions beyond the reasonable control of Tenant including, without
limitation, force majeure, acts of God, governmental restrictions or
preemption, including but not limited to inability to obtain
materials, acts of the public enemy, riot, civil commotion, storms,
fire, floods, earthquakes, strikes, and lockouts.
(g) "Landlord" on the date as of which this Lease made, shall
mean Landlord and its successors and/or assigns under any agreement
or by statute or by operation of law in equity or otherwise, but
thereafter Landlord shall mean only the holder of the Landlord's
interest in the Premises at the time in question, so that if Landlord
or any successor to its interest hereunder sells or transfers its
interest in fee title to the Premises, then Landlord or any successor
to his interest under this Lease at the time of such sale or transfer
shall be and hereby is entirely freed and relieved of all agreements,
covenants and obligations of Landlord hereunder from and after the
time Landlord's leasehold of the Premises is conveyed, and it shall
be deemed and construed without further agreement between the parties
or their successors in interest between the parties and the purchaser
or transferee on any sale or transfer that such purchaser or
transferee has assumed and agreed to carry out any and all
agreements, covenants and obligations of Landlord hereunder accruing
from and after the date of such conveyance, subject, however, to the
other applicable terms and conditions of this Lease. Notwithstanding
the foregoing, the Landlord under the Lease at the time of such sale
or transfer shall not be released by the Tenant for any claim of
Tenant against Landlord which arises out of Landlord's acts or
omissions during the period prior to such sale or transfer provided:
(i) a written notice of a claim is made by Tenant to Landlord by the
earlier of the expiration of the statute of limitation with respect
to such claim or six months after Tenant receives written notice of
the transfer by Landlord; and (ii) Landlord in any proper action
brought by Tenant against Landlord after such sale or transfer shall
be entitled to rely upon any and all of the protections, benefits and
provisions of this Lease as if Landlord had not sold or transferred
its interest in this Lease.
(h) "Tenant" shall mean Tenant as defined above and whenever
this Lease and the leasehold estate hereby created shall be assigned
or transferred by Tenant in the manner specifically permitted herein,
then from and after such assignment or transfer, the term "Tenant"
shall mean only the permitted assignee or transferee named therein
and that is the owner of Tenant's interest hereunder as if such
assignee or transferee has been named herein as Tenant. The
foregoing-provisions shall not be construed to relieve Tenant herein
named or any assignee or successor in interest of the Tenant herein
named from the covenants, obligations and conditions to be paid,
performed and observed by Tenant under this Lease.
(i) "this Lease" includes all amendments and modifications
hereof executed by the party against whom enforcement of the
amendments or modifications is sought.
(i) "Rental" shall mean collectively the net annual rental
specified in Section 3.01 hereof and Impositions plus all other such
costs, expenses, charges, payments and deposits which Tenant assumes
or agrees to pay hereunder.
(j) "Impositions" shall have the meaning provided in Section
4.01.
(k) The terms "Leasehold Mortgage" and "Leasehold Mortgagee"
shall have the meanings provided in Section 18.01.
(l) "Event of Default" shall have the meaning provided in
Section 23.01.
(m) "Default" shall mean any condition or event, which
constitutes or would, after expiration of applicable notice, grace
and/or cure or lapse of time, or both, constitute an Event of
Default.
(n) The words "herein," "hereof" and "hereunder" and words of
similar import refer to this Lease as a whole and not any particular
section or subdivision thereof.
(o) "Expiration Date" shall mean July 31, 2012.
(p) "Sublease" means any sublease, letting, written or oral, or
license, concession, easement, occupancy or any other agreement to
use all or any portion of the Premises.
(q) "Subtenant" means a sublessee, subtenant or licensee of the
Premises under any Sublease.
(r) "Legal Requirements" shall mean all federal, state, county,
city, municipal and other governmental and quasi-governmental
statutes, laws (including without limitation all Local Laws of the
City of New York), orders, regulations, ordinances, judgments,
requirements, decrees and injunctions affecting all or any part of
the Premises or the sidewalks, curbs or areas adjacent thereto, and
all permits, licenses, authorizations and regulations relating
thereto including certificate(s) of occupancy, if any, for the
Premises, and all easements, covenants, restrictions and similar
matters set forth in all instruments of record applicable to the
Premises or the Lease which either exist as of the date hereof or are
hereafter created by Tenant or consented to by Tenant in writing or
required by law.
(s) "Insurance Requirements" shall mean all requirements of any
insurance policy covering or applicable to all or any part of the
Premises or the use thereof required to be maintained under this
Lease by Tenant, all requirements of the issuer of any such policy
applicable to such policy, and any orders, rules, regulations,
recommendations and other requirements of the New York Board of Fire
Underwriters and/or the New York Fire Insurance Rating Organization
(or any other bodies exercising the same or similar functions)
applicable to affecting all or any part of the Premises.
ARTICLE 3
Rent
Section 3.01.
Tenant shall pay to Landlord at its office at 00-00 Xxxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 or such other place as
shall be designated from time to time by written notice from Landlord
to Tenant, a net annual rental ("Base Rent") amount of $83,286.00
payable in equal monthly installments in the amount of $6,940.50, in
advance without prior notice or demand, without diminution, deduction
or set-off whatsoever, on the first day of each calendar month for
the period commencing on the Commencement Date through the Expiration
Date. It is expressly agreed that the annual amount listed above
shall be the amount due to Landlord. The monthly amount is merely
listed for convenience and any discrepancy shall be ruled by the
annual amount.
For the purposes of this Article "Consumer Price Index" or the
"CPI-U" shall mean the Consumer Price Index for All Urban Consumers
of the United States Department of Labor's Bureau of Labor Statistics
in effect for New York, Northeastern NJ All Items (2004=100) and
generally published at the time the computation is to be made. "Base
Index" shall be the CPI-U for the month of July 2005 and the "Current
Index" shall be the CPI-U in effect for the month of July for each
year of the Term. In the event the CPI-U ceases to incorporate a
significant number of the items set forth in the Base Index or if a
substantial change is made in the method of establishing the CPI-U,
then the CPI-U shall be adjusted to the figure that would have
resulted had no change occurred in the manner of computing such CPI-
U. In the event that such CPI-U (or a successor or substitute index)
is not available, a reliable governmental or other nonpartisan
publication evaluation shall be used in lieu of the CPI-U.
Commencing on August 1, 2009 and on each anniversary of such
date thereafter for the term of this Lease the Base Rent shall be
increased in accordance with the changes in the Consumer Price Index
published by the Bureau of Labor Statistics of the United States
Department of Labor, as compared with the Base Index (as defined
herein) calculated by applying the formula set forth below (the
"Formula"); provided, however, that no increase in the Base Rent
shall exceed three percent (3%) on an annual basis. The annual
increase in the Base Rent set forth herein shall always be calculated
upon, and added to, the Base Rent of $83,286.00 but shall not exceed
three percent (3%) on an annual basis.
Formula =Current Index minus Base Index = percentage change in
CPI-U
Base Index
In the event that the rent shall have been increased pursuant to the
preceding paragraph of this article and at any time subsequently such
index shall be decreased, the rent shall thereafter be reduced by
such amount but in no event shall such decrease exceed three percent
(3%) on an annual basis. All increases or decreases shall be based
on the original Base Rent and not on any revision thereof due to an
increase or decrease, which may have become effective because of the
provisions of this article.
Section 3.02.
Tenant shall pay all net annual rental, additional rent and
other payments and deposits, which Tenant in any of the provisions of
this Lease assumes or agrees to pay, in such United States of America
coin or currency as at the time of payment shall be legal tender for
the payment of public or private debts.
Section 3.03.
Tenant shall also pay all Impositions required to be paid by
Tenant under Article 4 hereof, and all sums, costs, expenses,
payments and deposits which Tenant in any of the provisions of this
Lease assumes or agrees to pay and/or deposit, including without
limiting the generality of the foregoing, deposits for Impositions
and insurance under Article 5 hereof, and, in the event of any
nonpayment of net annual rental additional rent, or any of said
items, Landlord shall have (in addition to all other rights and
remedies) all the rights and remedies provided for herein or by law
in the case of nonpayment of rent.
Section 3.04.
Except as otherwise set forth in this Lease, it is the purpose
and intent of Landlord and Tenant that the net annual rent and
additional rent specified in Section 3.01 shall be absolutely net to
Landlord, so that this Lease shall yield net to Landlord the net
annual rent and additional rent specified above in this Article 3 and
that all costs, fees, Impositions and expenses and obligations of
every kind and nature whatsoever relating to the Premises now
existing or hereafter arising during the lease term or whether beyond
the contemplation of the parties, shall be paid or discharged by
Tenant, and Tenant agrees to indemnify and save Landlord harmless
from and against such costs, fees, charges, expenses, Impositions,
reimbursements and obligations and any interest thereon.
Notwithstanding the foregoing paragraph, except as otherwise set
forth in this Lease, Tenant shall have no obligation to pay (i) any
interest or principal due or to become due under any Mortgage or any
costs or charges due or to become due under any Mortgage (or any
other lien not including a Mortgage or encumbrance, right, estate or
instrument created or suffered by Landlord after the Commencement
Date and not by, through or under Tenant, or its subtenants, invitees
or employees thereof consented to or requested in writing by Tenant)
which may arise as the result of any act, omission, breach or default
by Landlord (as the mortgagor or otherwise) unless and to the extent
such costs or charges arise because Tenant has an equivalent
obligation under this Lease which Tenant has failed to perform within
the applicable notice, grace or cure period; (ii) the cost of
Landlord's office overhead and ordinary ministerial expenses
associated with the review of written materials and correspondence
submitted under this Lease by Tenant to Landlord; (iii) Landlord's
legal fees and expenses with respect to negotiation and preparation
of this Lease, the transaction contemplated hereby or any other
document, instrument or transaction negotiated prior to the date
hereof relating hereto; (iv) Landlord's expenses if Landlord shall
expend monies or incur obligations (including for professional fees)
for a purpose of Landlord, as opposed to a purpose of Tenant, and not
otherwise expressly requested by Tenant or expressly required to be
reimbursed under this Lease by Tenant; and (v) except as otherwise
set forth in this Lease or with respect to an Event of Default,
Landlord's expenses in administering this Lease.
Section 3.05.
All Rental which Tenant, pursuant to any provision of this
Lease, assumes or agrees to pay, shall be paid as in this Lease
provided, without notice or demand (except as may be required in this
Lease), and without abatement, deduction, counterclaim or set-off.
ARTICLE 4
Taxes and Other Charges
(Impositions)
Section 4.01.
Except as otherwise expressly provided to the contrary in this
Article hereof, Tenant covenants and agrees to pay, as hereinafter
provided, all of the following items which relate to any period of
the Term of this Lease: real estate taxes as set forth in Section
4.11, special real estate taxes, personal property taxes, use taxes
and the like, assessments, water charges, sewer rents, rates and
charges, vault charges, excise taxes, levies, license and permit
fees, charges for public utilities, fines, and all other governmental
charges and any penalties, interest or costs with respect thereto,
general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever which at any time
during the term of this Lease may be assessed, levied, confirmed,
imposed upon, or grow or become due and payable out of or in respect
of, or charged with respect to or become a lien on, the Premises, or
the sidewalks or streets in front of or adjoining the Premises, or
any vault, passageway or space in, over or under such sidewalk or
street, or any other appurtenances of the Premises, or any personal
property, equipment or other facilities used in the operation
thereof, or the rent or income received therefrom, or any use or
occupancy thereof, or the Rental payable hereunder or any document to
which Tenant is a party creating or transferring or surrendering an
interest or estate in the Premises (all such items being herein
called "Impositions"); each such Imposition, or installment thereof,
during the term of the Lease to be paid (subject to the provisions of
Section 4.04) when due but in any event prior to the day upon which
any fine, penalty, interest or cost may be added thereto or imposed
by law for the nonpayment thereof; provided, however, that if, by
law, any Imposition at the option of the taxpayer be paid in
installments (whether or not interest shall accrue on the unpaid
balance of such Imposition), Tenant may exercise the option to pay
the same in such installments. Landlord agrees to use its best
efforts to deliver copies of the bills received with respect to all
obligations of Tenant hereunder no later than fourteen (14) days
prior to the date that same would become delinquent. The failure of
Landlord to comply with this requirement in no way relieves Tenant of
its obligation to pay any taxes due under this Lease.
Section 4.02.
Nothing herein contained shall require Tenant to pay municipal,
state or federal or other income (including New York State real
property transfer or other capital gains taxes) profits, inheritance,
estate, succession, or gift or similar taxes of Landlord, or any
corporate franchise tax or a transfer tax (from a transfer of
Landlord's interest in this Lease and/or the Premises) imposed upon
Landlord or any successor of Landlord provided, however, that if at
any time during the term of this Lease the methods of taxation
prevailing on the date hereof shall be altered or changed so that in
lieu of or in addition to the whole or any part of the Impositions
now levied, assessed or imposed upon real estate and the improvements
thereon, there shall be imposed any tax, assessment (including but
not limited to any municipal, state or federal levy), imposition or
charge, or any part thereof, measured by or based in whole or in part
upon the Premises or Rental and imposed upon Landlord, then all such
taxes, assessments, levies, impositions or charges, or the part
thereof to the extent they are so measured or based, shall be deemed
to be included within the term "Impositions" for the purposes hereof,
to the extent that such Impositions would be payable if the Premises
were the only property of Landlord subject to such Impositions and
Tenant shall pay and discharge the same as herein provided in respect
of the payment of Impositions.
Section 4.03.
Any Imposition relating to a fiscal period of the taxing
authority, a part of which period is included within the term of this
Lease and a part of which is included in a period of time before the
Commencement Date shall (whether or not such Imposition shall be
assessed, levied, confirmed, imposed upon or in respect of or become
a lien upon the Premises, or shall become payable, during the term of
this Lease) be paid in full by Tenant, as Tenant was the owner of the
Building prior to the Commencement Date. All provisions of this
paragraph 4.03 shall survive six months after the Expiration Date or
the earlier termination of this Lease.
Any Imposition relating to a fiscal period of the taxing
authority, a part of which period is included within the term of this
Lease and a part of which is included in a period of time after the
Expiration Date shall (whether or not such Imposition shall be
assessed, levied, confirmed, imposed upon or in respect of or become
a lien upon the Premises, or shall become payable, during the term of
this Lease) be apportioned between Landlord and Tenant as of the
Expiration Date, so that Tenant shall pay that portion of such
Imposition which that part of such fiscal period is included in the
period of time before the Expiration Date to such fiscal period, and
Landlord shall pay the remainder thereof. All provisions of this
paragraph 4.03 shall survive six months after the Expiration Date or
the earlier termination of this Lease.
Section 4.04.
Tenant shall have the right at its own expense and on notice to
Landlord to contest, review or seek a reduction of the amount of or
validity, in whole in part, of any Imposition or the valuation of the
Premises assessed for tax purposes by appropriate proceedings
including but not limited to appropriate certiorari proceedings and
appeals from any judgments, decrees or orders diligently conducted in
good faith before or after payment of such Imposition (which be made
under protest), provided that if payment of an Imposition shall be
postponed, it shall be postponed only so long as:
(a) Neither the Premises nor any part thereof, would by
reason of such postponement or deferment be, in the judgment of
Landlord (which Landlord agrees shall be exercised reasonably), in
danger of being forfeited or lost;
(b) Landlord shall not be subject to criminal liability or
criminal penalty therefore.
Landlord will cooperate, at no cost to Landlord (except Landlord
will pay the overhead of Landlord's office and ordinary ministerial
expenses of administration, for a reasonable and ordinary amount of
time), as necessary in connection with any proceedings brought by
Tenant to contest or seek a reduction of any Impositions which would
include, but not be limited to, executing all necessary documents to
contest or seek a reduction of any Impositions.
Section 4.05.
Provided Tenant is not then in default, Tenant shall be
authorized to collect any refund of taxes obtained during the term of
this Lease and to retain the same subject to Tenant's obligation to
pay to Landlord, Landlord's pro rata share thereof pursuant to
Section 4.03. In the event Tenant shall be in default and Landlord
should collect any refund, then Landlord shall retain same subject to
Landlord's obligation to pay to Tenant, Tenant's pro rata share
thereof pursuant to the provisions of Section 4.03 hereof, provided
that Tenant has cured all defaults hereunder and has paid to Landlord
all amounts due under any provision hereof.
Section 4.06.
Landlord shall not be required to join in any proceeding
referred to in Section 4.04 hereof unless the provisions of any law,
rule or regulation at the time in effect shall require that such
proceedings be brought by and/or in the name of Landlord or any owner
of the Land, in which event Landlord shall, at Tenant's cost, join in
such proceedings or permit the same to be brought in its name.
Landlord shall not ultimately be subject to any liability for the
payment of any costs or expenses in connection with any such
proceedings (except for overhead of Landlord's office and ordinary
ministerial expenses of administration, for a reasonable and ordinary
amount of time), and Tenant will defend, indemnify and save harmless
Landlord from any such costs and expenses.
Section 4.07.
Landlord agrees that whenever Landlord's cooperation is required
in any of the proceedings brought by Tenant as aforesaid, and
provided there exists no material Event of Default which remains
uncured Landlord will reasonably cooperate therein (including
executing all documents reasonably required) and will not take any
action contrary to the best interests of Tenant in any of such
proceedings; and Tenant shall have the sole right to agree on its
behalf and Landlord's to any settlement, compromise or other
disposition of any such proceeding; all of the foregoing shall not
entail any cost or expense to Landlord (except for overhead of
Landlord's office and ordinary ministerial expenses for
administration, for a reasonable and ordinary amount of time).
Section 4.08.
Tenant will furnish to Landlord, within fifteen (15) days after
the date when any Imposition would become delinquent (or as soon as
reasonably obtainable), official receipts of the appropriate taxing
authority, or other evidence satisfactory to Landlord evidencing the
payment thereof.
Section 4.09.
Any certificate, advice or xxxx of the appropriate official
designated by law to make or issue the same or to receive payment of
any Imposition, of nonpayment of such Imposition shall be prima facie
evidence that such Imposition is due and unpaid at the time of the
making or issuance of such certificate, advice or xxxx, at the time
or date stated therein.
Section 4.10.
Inasmuch as Seller, as the present occupant of the
Premises, has paid all bills for the use and occupancy of the
Premises, and shall continue to do so, in accordance with the terms
and conditions of this Lease, there will be no adjustments as of the
Commencement Date for real estate taxes, water charges, sewer rents,
fuel and any other expenses which would have been adjusted between
Landlord and Tenant.
Section 4.11.
Tenant shall pay, as additional rent, any and all real estate
taxes covering the Premises.
ARTICLE 5
Late Charges
If Tenant shall fail to pay any sum due Landlord when the same
shall be due and payable, other than the interest hereinafter
provided for in this Article, then Tenant shall also pay to Landlord,
promptly on demand, interest upon the aforesaid sum at the rate of
five percent (5%) per month calculated from the date when said unpaid
sum was due and ending on the date when said sum is paid.
ARTICLE 6
Insurance
Section 6.01.
From the Commencement Date, and throughout the term of this
Lease, Tenant shall maintain or cause to be maintained at its sole
cost and expense policies of insurance as follows:
(a) All-risk insurance for the Building as herein defined, in an
amount equal to the full replacement cost thereof, including the full
replacement cost of Tenant's leasehold improvements (but excluding
Tenant's removable fixtures and personal property) but not less than
$1,000,000.00. Property insurance must include replacement cost
coverage which is defined as new construction "materials" without any
deduction for depreciation. If and when Tenant shall make leasehold
improvements, the foregoing minimum coverage shall be increased to
$2,000,000.00. The amount of both of the foregoing minimum coverages
("base coverages") shall be increased in July 2009 and in July of
each subsequent year during the term hereof by an amount equal to the
percentage increase in the Consumer Price Index, as defined in
Article 3, Section 3.01, using the same Base Index and Current Index
as set forth in that Section; provided, however, that if in any such
year the percentage increase in the Consumer Price Index, as
calculated according to the Formula set forth in Section 3.01, is
less than one percent (1%), no increase in the base coverages shall
be required in such year, but if in the next year or in any
subsequent year the total of such percentage increases in the
Consumer Price Index for such year, and for any prior year in which
no increase in coverage was required, equals or exceeds one percent
(1%), then notwithstanding the foregoing, the base coverages shall be
increased in such year by a percentage equal to the total of such
increases.
(b) At Tenant's option, all risk insurance in an amount equal to
the full replacement cost of Tenant's removable fixtures and personal
property;
(c) Broad form boiler and machinery insurance on a comprehensive
basis, inclusive, but not limited to, coverage for pressure vessels,
miscellaneous electrical equipment and air conditioning equipment
with such limits as from time to time may be reasonably required by
the Landlord but not less than $500,000 per occurrence, with
endorsement for actual replacement cost without depreciation;
(d) Loss of rents in the amount of $500,000;
(e) Commercial general liability insurance, including
contractual
liability, against claims for bodily injury, death and property
damage occurring in or about or arising out of the use of the
premises or any appurtenances thereto, including, but not limited to,
all elevators, streets, alleys, sidewalks and vaults adjoining or
appurtenant to the premises. Such insurance to be not less than
$1,000,000 combined single limit for death, injury and personal
property damage. In addition, Tenant shall maintain umbrella
coverage in the amount of $2,000,000.
Section 6.02.
All policies of insurance carried pursuant to Section 6.01 shall
name Landlord, its designated managers and agents, as additional
insured. In addition, Tenant shall extend Tenant's liability
insurance to cover Landlord as additional insured, and a certificate
of such coverage shall promptly be delivered to Landlord or its
agent.
Section 6.03.
(a) All insurance required by this Lease shall be
evidenced by valid and enforceable policies issued by companies (i)
licensed to do business in the State of New York and (ii) having a
financial size category of not less than XV and with general policy
holders rating of not less than "A" as rated by "Best's" insurance
reports. Prior to the time such insurance is first required to be
carried by Tenant and thereafter, at least 15 days prior to the
effective date of any such policy, Tenant shall deliver to Landlord
either a duplicate original of the aforesaid policies or a
certificate(s) evidencing such insurance. Said certificate(s) shall
contain an endorsement that such insurance may not be canceled except
upon 30 days' written notice to Landlord.
(b) All such policies shall include appropriate clauses
pursuant to which the insurance companies (i) waive all right of
subrogation against Tenant (or against Landlord in the case of
insurance under Section 6.01(b) with respect to losses payable under
such policies and (ii) agree that such policies shall not be
invalidated should the insured waive in writing prior to a loss any
or all right of recovery against any party for losses covered by such
policies.
Section 6.04.
Provided that Landlord's right of full recovery under its policy
or policies aforesaid is not adversely affected or prejudiced
thereby, Landlord hereby waives any and all right of recovery that it
might otherwise have against Tenant, its servants, agents and
employees, for loss or damage occurring to the Building and the
fixtures, appurtenances and equipment therein, to the extent of the
net proceeds of insurance actually received by Landlord as a result
of such loss or damage, notwithstanding that such loss or damage may
result from the negligence or fault of Tenant, its servants, agents
or employees. Provided that Tenant's right of full recovery under
its aforesaid policy or policies is not adversely affected or
prejudiced thereby, Tenant hereby waives any and all right of
recovery which it might otherwise have against Landlord, its
servants, agents and employees, for loss or damage to, Tenant's
furniture, furnishings, fixtures and other property removable by
Tenant under the provisions hereof to the extent of the net proceeds
of insurance actually received by Tenant as a result of such loss or
damage notwithstanding that such loss or damage may result from the
negligence or fault of Landlord, its servants, agents or employees.
Section 6.05.
Tenant shall not do, permit or suffer to be done any act or
thing upon the Premises that would invalidate or be in conflict with
New York standard fire and property damage insurance policies
covering the Building, and fixtures, equipment and property therein,
or that would increase the rate of insurance applicable to the
Building to an amount higher than it otherwise would be; and Tenant
shall not do nor shall Tenant permit to be done any act or thing upon
the Premises that shall or might subject Landlord to any liability or
responsibility for injury to any person or persons or to property by
reason of any business or operation being carried on within the
Premises.
ARTICLE 7
Casualty, Restoration and
Use of Fire Insurance Proceeds
Section 7.01.
If the Premises or any part thereof shall be damaged by
fire or other casualty Tenant shall give immediate notice thereof to
Landlord and this Lease shall continue in full force and effect
except as hereinafter set forth.
Section 7.02.
(a) If the Building shall be destroyed or damaged in whole
or in part by fire or other casualty (including any casualty for
which insurance was not obtained or obtainable) of any kind or
nature, ordinary or extraordinary, foreseen or unforeseen, Tenant
shall give to Landlord prompt notice thereof, and Tenant shall
utilize insurance proceeds for such repairs, restorations,
replacement and rebuilding, and shall promptly, to the extent of such
insurance proceeds, repair, restore and rebuild the same (subject to
Unavoidable Delays including delays in availability of insurance
proceeds due to delays caused by the insurer(s)), as nearly as
practicable to the condition and character of the Building existing
immediately prior to such occurrence subject to Legal Requirements
and subject to Tenant's right to make alterations in accordance with
this Lease. The Base Rent and the additional rent payable under this
Lease shall xxxxx from the day following the casualty according to
the part of the Premises that is untenantable until such repair shall
be substantially completed.
(b) Notwithstanding anything to the contrary contained
herein, if the Premises are substantially damaged (for the purposes
herein "substantially damaged" shall mean more that 50% of the
Premises are untenantable) then, in any such event, the Tenant may
elect to terminate this Lease by written notice to the Landlord.
Such notice shall be given within ninety (90) days after such fire or
casualty specifying a date for the expiration of the Lease, which
date shall not be more than sixty (60) days after the giving of such
notice, and upon the expiration date specified in such notice the
term of this Lease shall expire as fully and completely as if such
date were the Expiration Date of this Lease and Tenant shall
forthwith quit, surrender and vacate the Premises. Any rent owing
shall be paid up to such date (subject to abatement as provided in
this Article) and any payments of rent made by Tenant that were on
account of any period subsequent to such date shall be returned to
Tenant.
The provisions of this Article 7 shall be considered an express
agreement governing any cause of damage or destruction of the
Premises by fire or other casualty, and Section 227 of the Real
Property Law of the State of New York, providing for such a
contingency in the absence of an express agreement, and any other law
of like import, now or hereafter in force, shall have no application
in such case.
ARTICLE 8
Tenant's Right to Make Alterations
Tenant shall have the right at any time and from time to time
during the term of this Lease to make, at its sole cost and expense,
changes, alternations, additions, replacements or improvements
(hereinafter in this Article called an "Alteration") in or to the
Premises, without prior advance notice to Landlord, provided that all
Alterations shall be performed in accordance with all State, City and
local Legal Requirements and Insurance Requirements, and provided
further that any alteration performed within any twelve (12) month
period entailing an aggregate cost in excess of $100,000 shall be
subject to Landlord's prior written approval, which approval shall
not be unreasonably withheld; provided, however, Tenant shall furnish
Landlord evidence of readily available funds and/or financing
adequate to pay for such alterations, shall cause the person(s)
constructing such alterations to provide payment and performance
bonds in an amount equal to the total cost of such alterations,
naming Landlord as an additional obligee under said bonds and shall
disclose in writing to the person(s) constructing such alterations
the provisions of Section 16.03.
ARTICLE 9
General Requirements Regarding Alterations
Section 9.01.
For the purposes of this Article, repairs, restorations,
rebuilding, alterations and improvements, or every kind whatsoever,
including installations, excavations and demolition are called
"Work."
This Article applies to all Work that Tenant is required or
permitted by this Lease to perform, or which is otherwise consented
to by Landlord.
Section 9.02.
Whenever Tenant performs any Work, Tenant shall:
(1) perform the Work in a good and workmanlike manner;
(2) perform the Work in compliance with all Legal
Requirements and Insurance Requirements;
(3) perform the Work with diligence, commencing the Work as
soon as reasonably practicable and completing said Work within a
reasonable time, subject to Unavoidable Delays;
(4) pay for all costs incurred for or in connection with
the Work;
(5) retain if required by any Legal Requirement and/or if
reasonably prudent, for the preparation of the plans for the Work
and, also for the supervision, in accordance with such architect's
standard practices as to supervision, of the said Work, a qualified
architect, licensed to practice in the State of New York;
Section 9.03.
Prior to commencing the Work, Tenant shall comply with all of
the following requirements:
(1) Tenant shall obtain all permits, approvals and
certificates required by all governmental authorities having
jurisdiction, needed for the commencement and prosecution of the Work
except insofar as governmental practice and procedure requires that
such permits, approvals and certificates be issued in stages in which
case Tenant shall obtain such permits, approvals and certificates at
the designated stages;
(2) Tenant shall obtain or cause to be obtained by its
contractors, all insurance coverage required in connection with the
Work, including Workmen's Compensation insurance covering all persons
employed in connection with the Work, in an amount at least equal to
the minimum amount of such insurance required by any Legal
Requirement, which insurance shall name Landlord as an additional
insured and shall be issued by a company or companies licensed or
qualified in New York and in good standing to issue said insurance;
(3) The cost of all Work shall be paid promptly by Tenant,
so that the fee title to the Premises shall at all times be free from
(i) liens for labor or materials supplied or claimed to have been
supplied to the Premises or Tenant, (ii) chattel mortgages,
conditional sales contracts, title retention agreements, and (iii)
security interests and agreements, and financing agreements and
statements.
Section 9.04.
Upon the substantial completion of the Work or as soon as
reasonably practicable thereafter, Tenant shall deliver to Landlord
copies of the following:
(i) the final governmental approvals, including any
amended certificate of occupancy required in connection with the
completed Work;
(ii) the statement, from Tenant's architect, if any, to
Landlord, that the Work has, insofar as the architect can reasonably
determine, been completed substantially in accordance with the plans
and specifications and is in compliance with law;
(iii) releases or lien waivers, from all contractors
and other persons who would otherwise be entitled to file mechanic's
liens, of all claims and right to file claims for the furnishing of
Work, materials, labor or services in connection with the Work;
(iv) "as built" plans for the Work if required by any Legal
Requirement.
Section 9.04.
Upon completion of any alteration, said alteration (or
improvement, fixture, or the like) shall immediately become the
property of the Landlord.
ARTICLE 10
Assignment and Subleasing
Section 10.01.
Tenant shall not assign or sublet the Premises without first
obtaining the written consent of the Landlord, which consent shall
not be unreasonable withheld. Notwithstanding the foregoing, Tenant
shall have the right to assign this Lease or sublet any portion of
the Premises to an affiliate of Tenant or any other entity under the
control of Tenant.
Section 10.02.
Landlord reserves the right to require a personal guaranty of
any proposed sub-tenant or assignee as a condition of consenting to
any sublet or assignment request unless said proposed sub-tenant or
assignee is an affiliate of Tenant or other entity under the control
of Tenant.
ARTICLE 11
Mortgages
Section 11.01.
This Lease and all rights of Landlord and Tenant are subject and
subordinate to any Mortgages and to any and all renewals,
replacements, extensions, modifications, consolidations and
refinancings thereof, subject to the execution, acknowledgment and
delivery to the Tenant by the Mortgagee of each such Mortgage of an
agreement of such Mortgagee substantially as set forth in Section
11.02.
Section 11.02.
Landlord and Tenant agree that the execution of a Non-
disturbance Agreement by the Mortgagee is a requirement to any re-
financing by Landlord.
Landlord will use its best efforts to cause any Mortgagee to
enter into an agreement with Tenant, substantially as follows, and
Tenant agrees to enter into such an agreement to the extent
obtainable from such Mortgagee:
1. Tenant agrees that the Lease is and shall be
subordinate to the Mortgage.
2. Mortgagee agrees that unless there shall then be an
Event of Default under the Lease which remains uncured neither Tenant
nor any Leasehold Mortgagee shall be named or joined as a party
defendant in any action, suit or proceeding to foreclose the Mortgage
or to collect the debt secured thereby nor shall Tenant's rights of
possession be disturbed pursuant to such Agreement.
3. If, at any time, Mortgagee (or any person, or such
person's successors or assigns, who acquires the interest of Landlord
in the Lease through foreclosure of any Mortgage or deed in lieu of
foreclosure of such Mortgage or through any assignment of Landlord's
interest in the Lease given as collateral for a Mortgage or the debt
secured thereby) (herein sometimes called the "Successor Lessor")
shall succeed to the interest of Landlord in the Lease, then at
Successor Lessor's election Tenant shall attorn to and recognize such
person so succeeding to Landlord's rights as Tenant's Landlord under
the Lease. Upon such attornment and recognition, the Lease shall
continue in full force and effect as, or as if it were, a direct
lease between the Successor Lessor and Tenant upon all of the then
terms, conditions and covenants of the Lease, except as set forth
below, and Tenant and the Successor Lessor shall promptly execute and
deliver any instrument in recordable form, that either party may
reasonably request to evidence such attornment and recognition.
4. Landlord and any Leasehold Mortgagee (or its nominee)
upon becoming the Tenant under Article 18 hereof shall execute an
agreement containing the terms of the paragraphs in this Section
11.02.
5. No Successor Lessor shall be liable for any claimed
default of Landlord or be deemed to have assumed obligations of
Landlord with respect to the period prior to the effective date on
which the Successor Lessor shall have succeeded to the interest of
Landlord hereunder.
Section 11.03.
If, in connection with Landlord's obtaining financing or
refinancing for the Premises or this Lease, a lender shall request
minor modifications to this Lease as a condition to such financing or
refinancing, neither Landlord nor Tenant will withhold, delay or
defer its consent provided that such modifications: (i) do not
diminish either party's obligations or increase the rights of
Landlord or Tenant under this Lease; (ii) do not change any
substantive provisions of this Lease; (iii) do not add any
substantive burden or obligation to Landlord or Tenant under the
Lease; (iv) would not put Landlord or Tenant in default under any
Leasehold Mortgage or Landlord in default under any Mortgage.
ARTICLE 12
Repairs
Section 12.01.
Tenant shall, at its own cost and expense, keep clean and free
from dirt, snow, ice, rubbish, obstructions and encumbrances,
sidewalk areas, vaults, areaways, courtyard, garden and garden fence,
chutes, sidewalk hoists, railings, gutters, alleys and curbs in front
of or adjacent to the Premises.
Section 12.02.
The Tenant shall be solely responsible for making all non-
structural repairs and replacements and for all related costs and
expenses necessary to keep the Building in compliance with all Legal
Requirements and Insurance Requirements.
Section 12.03.
Landlord shall not be required to furnish any services or
facilities whatsoever to the Premises, such as, but not limited to,
water, steam, heat, gas, electricity, light and power. Tenant shall
pay for all of said services and facilities as the charges for same
become due. Tenant shall have all existing utility meters put into
its name.
ARTICLE 13
EARLY TERMINATION OF LEASE
Tenant shall have the right to terminate this Lease prior to the
Expiration Date upon one hundred twenty (120) days notice to
Landlord, delivered in the form and manner prescribed in Article 24
herein.
ARTICLE 14
Compliance with Legal Requirements and
Insurance Requirements
Section 14.01.
Except as otherwise provided for in this Lease, Tenant shall at
its own cost and expense, during the term of this Lease, promptly
comply with any and all Legal Requirements and Insurance
Requirements.
Section 14.02.
Tenant shall have the right to contest the validity of any such
Legal Requirements or Insurance Requirements or the application
thereof at Tenant's own expense.
ARTICLE 15
Fixtures and Articles of Personal Property
Section 15.01.
Tenant shall keep the Premises fully and adequately equipped
with all equipment, fixtures and articles of personal property (other
than any such property actually or customarily furnished by
Subtenants) reasonably necessary for the operation of the Premises.
Section 15.02.
Tenant shall expressly not have the right, power or authority to
remove from the Premises, except for replacement, repairs, cleaning
or other servicing, any of its, the Landlord's, or any other party's
equipment, fixtures or articles of personal property without the
prior written consent of Landlord. Any fixtures, Equipment and the
like installed by the Tenant in replacement of that which presently
exists which is not the business equipment or furnishings of Tenant,
shall immediately become the property of the Landlord, it being
agreed and understood that all business equipment and furnishings of
Tenant, whether attached to the Premises or movable, shall remain the
personal property of Tenant.
Section 15.03.
Tenant shall keep all Equipment and fixtures and articles of
personalty in good order and repair, reasonable wear and tear
excepted, and shall replace the same when necessary by items of
similar utility. All Equipment and fixtures and articles of
personalty shall upon installation forthwith become part of the
Building and shall be subject to all of the provisions of this Lease,
except as specifically set forth in Section 15.02 above.
Section 15.04.
Tenant's leasehold estate in the Building and its estate in the
land shall be non-separable.
ARTICLE 16
Discharge of Liens
Section 16.01.
(a) Tenant shall not create or permit to be created or to
remain, and shall discharge, any lien, encumbrance or charge which
might be or become a lien, encumbrance or charge upon the Premises or
any part thereof, other than (i) liens for Impositions so long as the
same are not yet payable without the addition of any fine, penalty or
interest, or (ii) liens resulting from Landlord's acts not consented
to in writing or requested in writing by Tenant or wrongful omissions
of Landlord after the Commencement Date.
(b) Subject to Article 18 hereof, Tenant shall not suffer any
matter or thing whereby the estate, rights and interest of Landlord
in the Premises or any part thereof might be impaired.
Section 16.02.
If any lien, encumbrance or charge included in paragraph (a) of
Section 16.01 or arising under Section 9.03(3) shall at any time be
filed against the Premises or any part thereof, Tenant within sixty
(60) days after notice of the filing thereof, shall cause the same to
be discharged of record by payment or posting of a bond. If Tenant
shall fail to cause such lien to be discharged within the period
aforesaid, or has failed to diligently commence a cure if same cannot
be reasonably removed within such time period, then in addition to
any other right or remedy, Landlord may, but shall not be obligated
to, discharge the same either by paying the amount claimed to be due
or by procuring the discharge of such lien by deposit or by bonding
proceedings, and in any such event Landlord shall be entitled, if
Landlord so elects, to compel the prosecution of an action for the
foreclosure of such lien by the lienor and to pay the amount of the
judgment in favor of the lienor with interest, costs and allowances.
Any amount so paid by Landlord and all costs and expenses incurred by
Landlord in connection therewith, shall constitute additional rent
payable by Tenant under this Lease payable by Tenant to Landlord
thirty (30) days after demand.
Section 16.03.
Nothing in this Lease contained shall be deemed or construed in
any way as constituting the consent or request of Landlord, express
or implied by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any
labor or the furnishing of labor or materials for any specific
improvement, alteration to or repair of the Premises or any part
thereof, nor as giving Tenant any right, power or authority to
contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of any
lien against Landlord's interest in the Premises or any part thereof.
Notice is hereby given that Landlord shall not be liable for any work
performed or to be performed at the Premises for Tenant or any
Subtenant, or any materials furnished or to be furnished at the
Premises for Tenant or any Subtenant, upon credit, and that no
mechanic's or other lien for such work or materials shall attach to
or affect the estate or interest of Landlord in and to the Premises.
ARTICLE 17
Condition and Title of the Premises
Tenant represents that the Premises, the title thereto, the
zoning thereof, the condition thereof, and the present uses and
non-uses thereof, have been examined by Tenant to Tenant's
satisfaction, and Tenant accepts them in the condition or state in
which they now are, AS IS. Landlord agrees to repair the roof if
necessary and all other structural components of the Premises, if
necessary.
ARTICLE 18
Leasehold Mortgages
Section 18.01
Tenant specifically has no right to mortgage Tenant's interest
in this Lease under one or more leasehold mortgages ("individually a
"Leasehold Mortgage" and collectively "Leasehold Mortgages") and
specifically has no right assign this Lease or any part or parts
thereof, as collateral security for any Leasehold Mortgages.
ARTICLE 19
Landlord Not Liable for Injury or
Damage; Indemnification of Landlord
Landlord shall not in any event whatsoever be liable (except for
Landlord's negligence or other tortious acts occurring after the
Commencement Date or those of its agents, contractors, servants,
employees or invitees and subject to the terms and conditions of
Article 6) for any injury or damage to any property or to any person
happening on, in or about the Premises and its appurtenances, nor for
any injury or damage to the Premises, whether belonging to Tenant or
any other person, caused by any fire, breakage, leakage, defect or
bad condition in any part or portion of the Premises, or from water,
rain, or snow that may leak into, issue or flow from any part of the
Premises from the drains, pipes, or plumbing work of the same or from
any place or quarter, or due to the use, misuse or abuse of all or
any of the elevators, hatches, openings, installations, stairways or
hallways of any kind whatsoever which may exist or hereafter be
erected or constructed on the Premises, or from any kind of injury
which may arise from any other cause whatsoever on the Premises. The
provisions of this Lease permitting Landlord to enter and inspect the
Premises are made for the purpose of enabling Landlord to become
informed as to whether Tenant is complying with the agreements,
terms, covenants and conditions hereof, and to do such acts as Tenant
shall fail to do, but Landlord shall have no liability or affirmative
obligation to do such acts.
ARTICLE 20
Landlord's Right of Inspection
Tenant shall permit Landlord and its agents or representatives
to enter the Premises at all reasonable times upon reasonable prior
written notice for the purpose of (i) inspecting the same and (ii)
making any necessary repairs thereto and performing any work therein
that may be necessary by reason of Tenant's failure to make any such
repairs or perform any such work provided, however, that except in
cases of emergency (as defined in Article 21 hereof) Landlord shall
give Tenant at least thirty (30) days' written notice of the
necessity of making repairs which notice shall include a description
of repairs Landlord shall undertake, the location of the repairs in
or about the Building and nature and scope of the repairs. In
making repairs, Landlord shall exercise reasonable diligence so as to
minimize any interference with the Tenant's business operations and
use of the Premises.
ARTICLE 21
Landlord's Right to Perform Tenant's Covenants
If Tenant shall any time fail to pay any Imposition in
accordance with the provisions hereof, or to take out, pay for,
maintain or deliver any of the insurance policies provided for
herein, or shall fail to make any other payment or perform any other
act on its part to be made or performed, then Landlord, after 15
days' written notice to Tenant (or without notice in case of an
emergency) and without waiving or releasing Tenant from any
obligation of Tenant contained in this Lease, may (but shall be under
no obligation to):
(i) pay any Imposition payable by Tenant pursuant to the
provisions hereof, unless Tenant is contesting same in accordance
with the provisions of this Lease,
(ii) take out, pay for and maintain any of the insurance
policies provided for herein,
(iii) make any other payment or perform any other act on
Tenant's part to be made or performed as in this Lease provided, and
may enter upon the Premises for the purpose and take all such action
thereon as may be necessary therefore.
All sums so paid by Landlord and all reasonable costs and
expenses incurred by Landlord in connection with the performance of
any such act, shall be paid by Tenant to Landlord within thirty (30)
days after demand. Any payment or performance by Landlord pursuant
to the foregoing provisions of this Article shall not be nor be
deemed to be a waiver or release of the breach or default of Tenant
with respect thereto or of Landlord's right to terminate this Lease,
institute summary proceedings and/or take such other action as may be
permissible hereunder in the event of breach or default by Tenant
unless the Tenant cures the breach or default prior to the date on
which such breach or default would be an Event of Default. Landlord
shall not be limited in the proof of any damages which Landlord may
claim against Tenant arising out of or by reason of Tenant's failure
to provide and keep in force insurance as aforesaid, to the amount of
the insurance premium or premiums not paid or incurred by Tenant and
which would have been payable upon such insurance, but Landlord shall
also be entitled to recover as damages for such breach, the uninsured
amount of any loss, to the extent of any deficiency in the insurance
required by the provisions of this Lease, unless agreed to by
Landlord, and damages, costs and expenses of suit suffered or
incurred by reason of damage to, or destruction of, the Premises,
occurring during any period when Tenant shall have failed or
neglected to provide insurance as aforesaid. "Emergency" means a
condition presenting imminent danger to (i) the health or safety of
persons or (ii) damage to property.
ARTICLE 22
Permitted Use; No Unlawful Occupancy
The parties agree that the use of the Premises shall be for
industrial/manufacturing or for any other legal use as permitted by
the Certificate of Occupancy for the Premises, and for no other
purpose, subject to the provisions of this Lease. Tenant shall not
use or occupy, nor permit or suffer, the Premises or any part thereof
to be used or occupied for any unlawful purpose, nor in such manner
as to constitute a nuisance of any kind, nor for any purpose or in
any way in violation of the then existing certificate of occupancy,
if any, or of any present or future Legal Requirements or Insurance
Requirements. Tenant shall promptly upon the discovery of any such
unlawful or illegal use take all necessary steps, legal and
equitable, to compel the discontinuance of such use.
ARTICLE 23
Defaults, Conditional Limitations, Remedies, etc.
Section 23.01.
Each of the following events shall be an "Event of Default"
hereunder:
(a) Failure to observe or perform one or more of the terms,
conditions, covenants or agreements of this Lease and the continuance
of such failure for a period of fifteen (15) days after written
notice by Landlord specifying such failure unless such failure
requires work to be performed, acts to be done, or conditions to be
removed which cannot by their nature reasonably be performed, done or
removed, as the case may be, within such 15-day period (including
reasonable time necessary to enforce rights against subtenants), in
which case no Event of Default shall be deemed to exist so long as
Tenant shall have commenced curing the same within such 15-day period
and shall diligently and continuously prosecute the same to
completion, subject to Unavoidable Delays;
(b) (i) The filing of an application by Tenant for or a
consent to the appointment of a receiver, trustee or liquidator of
itself or of all of its assets; or
(ii) The making by Tenant of a general assignment for the
benefit of creditors; or
(c) If this Lease or the estate of Tenant hereunder shall be
transferred to or assigned to or subleased to or shall pass to or
devolve upon any person or party, except in a manner herein
permitted, or if any of same is attempted;
(d) If a levy under execution or attachment shall be made
against Tenant or its property and such execution or attachment shall
not be vacated or removed by court order, bonding or otherwise within
a period of sixty (60) days;
Section 23.02.
If an Event of Default shall occur, Landlord, at any time
thereafter, may at its Option give written notice to Tenant stating
that this Lease and the term hereby demised shall expire and
terminate on the date specified in such notice, and upon the date
specified in such notice, which date shall not be less than fifteen
(15) days thereafter, this Lease and the term hereby demised, and all
rights of the Tenant under this Lease shall expire and terminate, as
if that date were the date herein definitely fixed for the
termination of the term of this Lease.
Section 23.03.
In the event of cancellation or termination of this Lease either
by operation of law, by issuance of a dispossessory warrant, by
service of notice of cancellation or termination as herein or under
law provided, or otherwise, Tenant shall quit and peacefully
surrender the Premises, and thereupon or at any time thereafter,
Landlord without further notice may, enter upon, possess, reenter and
repossess the Premises, or by summary proceedings, ejectment,
statutory action, claim of right, or otherwise, and may dispossess or
remove Tenant and the legal representatives of Tenant from the
Premises, and may have, hold, use, occupy and enjoy the Premises, and
the receipts and other benefits therefrom, and Tenant shall
nevertheless remain and continue liable to Landlord as hereinafter
provided.
In case of any such reentry, expiration and/or dispossess by
summary proceedings or otherwise, (except termination pursuant to
Section 25.01 (i) the Rental shall become due thereupon and be paid
for the period up to the time of such reentry, dispossess and/or
expiration; (ii) Landlord may relet the Premises or any part or parts
thereof, either in the name of Landlord or otherwise, for a term
which may at Landlord's option be less than or exceed the period
which would otherwise have constituted the balance of the term, and
may grant concessions or free rent; and (iii) Tenant or the legal
representative of Tenant shall also pay Landlord, as liquidated
damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, for each month of the period
which would otherwise have constituted the balance of the term, any
deficiency between (x) the sum of the Rental which would have been
due for such month if the term had not been terminated, and (y) the
net amount, if any, of the rents collected on account of the lease or
leases of the Premises for such month. In computing such liquidated
damages there shall be added to the said deficiency such expenses as
Landlord may incur in connection with reletting, such as court costs,
reasonable attorneys' fees and disbursements, brokerage and for
putting and keeping the Premises in good order or for preparing the
same for reletting as hereafter provided. If Landlord shall maintain
and operate the Premises there shall also be added to such
deficiency, to the extent not included in Rental, the cost and
expense (including capital expenditures) of operating and maintaining
the Premises.
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 Landlord to
collect the deficiency for any subsequent month by a similar
proceeding. Landlord at Landlord's option may make such alterations,
repairs, replacements and/or decorations in the Premises as Landlord
in Landlord's sole judgment considers advisable and necessary for the
purpose of reletting the Premises; and the making of such alterations
and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid.
Section 23.04.
No failure by either party to insist upon the strict performance
of any covenant, agreement, term or condition of this Lease or to
exercise any right or remedy consequent upon a breach thereof, and no
acceptance or payment of full or partial rent during the continuance
of any such breach, shall constitute a waiver of any such breach or
of such covenant, agreement, term or condition. No covenant,
agreement, term or condition of this Lease to be performed or
complied with by either party, and no breach thereof, shall be
waived, altered or modified except by a written instrument executed
by the other party. No waiver of any breach shall affect or alter
this Lease, but each and every covenant, agreement, term and
condition of this Lease shall continue in full force and effect with
respect to any other then existing or subsequent breach thereof.
Section 23.05.
In the event of any breach by either party of any of the
covenants, agreements, terms or conditions contained in this Lease,
the other party shall be entitled to enjoin such breach and shall
have the right to invoke any right and remedy allowed at law or in
equity or by statute or otherwise as though reentry, summary
proceedings, and other remedies were not provided for in this Lease.
Section 23.06.
Each right and remedy of either party provided for in this Lease
shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease or now or hereafter existing at law
or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by either party of any one or more of the
rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by that party of any or
all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.
Section 23.07.
Landlord or Tenant, as the case may be, shall pay to the other
party all reasonable costs and expenses, including reasonable
attorneys' fees, incurred by the other party in any action or
proceeding to which the other party may be made a party by reason of
any act or omission of Landlord or Tenant, respectively. Such party
shall also pay to the other party all reasonable costs and expenses,
including reasonable attorneys' fees, incurred by the other party in
enforcing any of the covenants and provisions of this Lease and
incurred in any action brought by the other party against such party
on account of the provisions hereof, and/or any default of such party
hereunder and all such costs, expenses, and attorneys' fees may be
included in and form a part of any judgment entered in any proceeding
brought by the other party against such party on or under this Lease.
All of the sums paid or obligations incurred by Landlord or Tenant,
respectively, as aforesaid with interest and costs shall be paid by
the other party to Landlord or Tenant, respectively, within thirty
(30) days of the rendition by such party to the other party of any
xxxx or statement therefore.
ARTICLE 24
Notices
Whenever it is provided herein that notice, demand, request
or other communication shall or may be given to or served upon either
of the parties by the other, and whenever either of the parties shall
desire to give or serve upon the other any notice, demand, request or
other communication with respect hereto or the Premises, each such
notice, demand, request or other communication shall be in writing
and, any law or statute to the contrary notwithstanding, shall be
effective for any purpose if given or served as follows:
(a) If by Landlord, by mailing the same to Tenant by registered
or certified mail, postage prepaid, return receipt requested, or by
overnight carrier, addressed to (i) Tenant at the Premises; and
similarly mailing, a copy to Tenant's attorney at Certilman Balin
Xxxxx & Xxxxx, LLP, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxx Xxxxxx, Xxx
Xxxx 00000, Attention: Xxxxxx X. Xxxxx, Esq., or at such other
addresses as Tenant may from time to time designate by notice given
to Landlord in accordance with this notice provision.
(b) If by Tenant to Landlord, by mailing the same by registered
or certified mail, postage prepaid, return receipt requested, or by
overnight carrier, addressed to (i) Landlord at 00-00 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000; and similarly mailing, a copy to
Landlord's attorney at Xxxxx Xxxxxx Xxxxxxx, P.C. at 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
addresses as Landlord may from time to time designate by notice given
to Tenant in accordance with this notice provision.
(c) Every notice, demand, request or other communication
hereunder shall be deemed to have been given or served three (3)
business days after the same shall be deposited in the United States
mails, postage prepaid, in the manner aforesaid.
(d) It is specifically agreed by the parties that the additional
mailings to attorneys set forth above in paragraph 24(a) and (b) are
solely as accommodations. The time in which service shall be
calculated shall run only from the date mailings were sent either to
Landlord or Tenant, and not the attorneys.
ARTICLE 25
Condemnation
Section 25.01.
If any time during the term of this Lease, title to the whole or
materially all of the Premises shall be taken for any public or
quasi-public purpose by any lawful power or authority by the exercise
of the right of condemnation or eminent domain or by agreement
between Landlord, Tenant and those authorized to exercise such right,
this Lease, the term hereby granted, any extension thereof and any
extension terms hereof, provided Tenant elects to terminate the
Lease, then in such event, it shall terminate and expire on the date
on which possession is taken and the Rental and other sum or sums of
money and other charges herein reserved and provided to be paid by
the Tenant shall be apportioned and paid to the date of such taking.
Nothing in this section, this Article, or anywhere else in this Lease
contained, however, shall be construed or deemed to vest in Tenant
any ownership or title of or to the Building or improvements
presently upon the Premises (or of, or, to any building or
improvements which may hereafter be placed on the Premises), it being
the understanding of the parties that the ownership of and title to
said Building and improvements now or hereafter to be located on the
Premises is in, and shall belong to, Landlord. The term "materially
all of the Premises" shall be deemed to mean more than twenty-five
percent (25%) of the Premises.
Section 25.02.
For the purpose of this Article 25, the Premises or a part
thereof, as the case may be, shall be deemed to have been taken or
condemned on the date on which actual possession of the Premises or a
part thereof, as the case may be, is acquired by any lawful power or
authority or the date on which title vests therein, whichever is
earlier.
Section 25.03.
If less than materially all of the Premises be so taken or
condemned, this Lease and the term thereof may continue upon the
election to continue of the Landlord, but the net annual rent due and
payable pursuant to Section 3.01 hereof shall be reduced in the same
proportion that the amount of the leasable space taken bears to the
total leasable space in the Premises, such reduction in rent to take
effect on and as of the date of the taking. Upon said election to
continue, Landlord shall proceed diligently (subject to Unavoidable
Delays) to repair and restore the remaining part of the Building on
the Premises not so taken so that the latter shall be a complete
rentable and self-contained architectural unit in good condition and
repair at Landlord's cost and expense.
Section 25.04.
(a) In the event of a total or material taking:
(i) Landlord shall be entitled to claim against the
condemning authority an amount equal to the value of its interest in
the Lease and the Premises (including compensation for the Building
or other improvements or portion thereof taken and damages if any to
the parts of the Building and other improvements not so taken) (after
deduction of expenses of collection therefore) as encumbered by this
Lease;
(ii) Tenant shall be entitled to make a separate claim
against the condemning authority for an amount equal to the value of
its interest in the Lease, its property and for moving and relocation
expenses.
(b) in the event of any such taking of less than materially all
of the Premises:
(i) Landlord shall be entitled to claim an amount equal to
what Landlord would claim under subparagraph 25.04 (a) (i) above on a
total or material taking multiplied by a fraction, the numerator of
which shall be the amount of square foot area taken and the
denominator of which shall be the amount of square foot area of the
Building prior to such taking;
(ii) Tenant shall be entitled to claim an amount equal to
what Tenant would claim under subparagraph 25.04(a)(ii) above
multiplied by a fraction, the numerator of which shall be the amount
of square foot area taken and the denominator of which shall be the
amount of square foot area of the Building prior to such taking.
ARTICLE 26
Security Deposit
At the signing of this Lease, Tenant shall provide Landlord with
a certified check in the amount of $20,821.50 representing an amount
equal to three (3) months of the Lease Term. Landlord shall hold
this amount as security deposit in a non-interest bearing account.
Upon any and all base rent increases, Tenant shall give Landlord such
additional sums as required so that at all times an amount equal to
three (3) months of the Lease Term shall be held as a security
deposit.
ARTICLE 27
Limitation of Liability
Notwithstanding anything to the contrary provided in this Lease,
whether express or implied, there shall be absolutely no personal
liability on the part of Landlord or Tenant, their successors or
assigns (under this agreement or by statute or operation of law or in
equity), with respect to any of the terms, covenants and conditions
of this Lease, and each party shall look solely to the interest of
the other, its successors or assigns (under any agreement or by
statute or operation of law or in equity or otherwise), in the
Premises or the proceeds thereof for the collection of any judgment
(or other judicial process) requiring the payment of money by either
party in the event of any breach or default by either party of any of
the terms, covenants and conditions of this Lease to be performed by
either party, such exculpation of personal liability to be absolute
and without any exception whatsoever, and no other property or assets
of the Landlord or Tenant or their directors, officers, shareholders,
partners or other principals (disclosed or undisclosed) shall be
subject hereunder to levy, execution or other enforcement procedures
for the satisfaction of any such judgment (or other judicial
process).
ARTICLE 28
Excavations and Shoring
If any excavation shall be made or contemplated to be made for
building or other purposes upon property adjacent to the Premises,
Tenant shall afford to the person or persons causing or authorized to
cause such excavating the right to enter upon the Premises for the
purpose of doing such work as such person or persons shall consider
to be necessary to preserve any of the walls or structures thereof
from injury or damage and to support the same by proper foundations.
Tenant shall not, by reason of any such excavation or work, have any
claim against Landlord for damages or indemnity or for suspension,
diminution, abatement or reduction of rent under this Lease.
ARTICLE 29
Estoppel Certificates by Tenant
Tenant agrees at any time and from time to time upon not less
than ten (10) business days' prior written notice by Landlord to
execute, acknowledge and deliver to Landlord or any other party
reasonably specified by Landlord, a statement in writing in from
delivered to Tenant for execution, certifying that this Lease is
unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified
and stating the modifications), setting forth the term hereof, any
offsets and defenses of the Tenant and the dates to which the net
rent, Impositions and other charges have been paid in advance, if
any, and stating whether or not to the best knowledge of the signer
of such certificate that Tenant or Landlord is in default in
performance of any covenant, agreement or condition contained in this
Lease and, if so, specifying each such default of which the signer
may have knowledge, and whether or not, to the best knowledge of the
signer of such certificate, that any event has occurred, which with
the passage of time or the giving of notice, or both, would
constitute such a default and, if so, specifying each such event. At
Landlord's request, Tenant shall also furnish such amendments thereto
and shall state in the aforesaid statement that to the best of
Tenant's knowledge no rights of Landlord under the Lease have been
waived and Landlord is not estopped to assert such rights (or if
there have been waivers or estoppels, the specifics thereof) and
shall set forth whether or not Tenant is in possession of the
Premises and is paying Rental as required by the Lease.
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ARTICLE 30
Landlord's Consents
It is understood and agreed that the granting of any consent
by Landlord to Tenant to perform any act of Tenant requiring
Landlord's consent under the terms of this Lease, or the failure on
the part of Landlord to object to any such action taken by Tenant
without Landlord's consent, shall not be deemed a waiver by Landlord
of its rights to require such consent for any further similar act by
Tenant, and Tenant hereby expressly covenants and warrants that as to
all matters requiring Landlord's consent under the terms of this
Lease, Tenant shall secure such consent for each and every happening
of the event requiring such consent, and shall not claim any waiver
on the part of Landlord of the requirement to secure such consent.
ARTICLE 31
Surrender at End of Term
On the last day of the term hereof or upon any earlier
termination of this Lease, or upon any reentry by Landlord upon the
Premises pursuant to Article 23 hereof, Tenant shall well and truly
surrender and deliver up to Landlord the Premises and Building and
Equipment without delay and in good order, condition and repair,
reasonable wear and tear and damage by casualty and condemnation
excepted, free and clear of all lettings and occupancies other than
subleases then terminable at the option of the Landlord thereof and
free and clear of all liens and encumbrances other than those, if
any, existing at the date hereof, or created by Landlord, or
subsequent owners of the Premises.
Title to all trade fixtures, furniture, equipment (other than
Equipment), installed in the Premises shall be in Landlord, and, upon
expiration or sooner termination of this Lease, the same shall not be
removed therefrom. The provisions of this Article shall survive the
termination of this Lease.
ARTICLE 32
No Oral Agreements
This Lease and any written agreements executed
contemporaneously herewith contain all the promises, agreements,
conditions, inducements and understandings between Landlord and
Tenant relative to the Premises and there are no prior promises,
agreements, conditions, understandings, inducements, warranties or
representations relative to the Premises, oral or written, expressed
or implied, between them other than as herein set forth or as set
forth in any written agreements executed contemporaneously herewith.
ARTICLE 33
Quiet Enjoyment
Tenant shall peacefully and quietly enjoy the Premises free of
any claim by any party arising by, through or under Landlord subject,
however, to the exceptions, reservations and conditions of this
Lease.
ARTICLE 34
Compliance with Covenants, Restrictions
and Easements
Tenant agrees that, throughout the term of this Lease, there
shall be no breach of any presently existing (or hereafter arising at
Tenant's request or with Tenant's acquiescence) covenant, easement or
restriction affecting the Premises.
ARTICLE 35
Intentionally Omitted
ARTICLE 36
Intentionally Omitted
ARTICLE 37
Recording of Memorandum
Landlord and Tenant may, at either party's request,
simultaneously with the execution of this Lease, join in the
execution of a memorandum of lease in proper form for recordation in
the appropriate office or offices in the county which the Premises is
situated, setting forth the existence and term of this Lease, and
Landlord and Tenant will each take such further action as may be
necessary to effect such recordation at the request of the other.
ARTICLE 38
Miscellaneous
Section 38.01.
The captions of this lease are for convenience of reference only
and in no way define, limit or describe the scope or intent of this
Lease nor in any way affect this Lease.
Section 38.02.
The table of contents preceding this Lease but under the same
cover is for the purpose of convenience of reference only and is not
to be deemed or construed in any way as part of this Lease, nor as
supplemental thereto or amendatory thereof.
Section 38.03.
The use herein of the neuter pronoun in any reference to
Landlord or Tenant shall be deemed to include any individual Landlord
or Tenant, and the use herein of the words "successors and assigns"
or "successors or assigns" of Landlord or Tenant shall be deemed to
include the heirs, legal representatives and assigns of any
individual Landlord or Tenant.
Section 38.04.
Subject to the provisions of Article 27, each person named as
Tenant shall be fully liable for all of the Tenant's obligations
hereunder. Any notice by the Landlord to any person named as Tenant
shall have the same force and effect as though given to all persons
named as Tenant.
Section 38.05.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Section 38.06.
No change to, surrender of, or waiver or estoppel regarding this
Lease or any of the terms hereof shall be valid unless in writing and
signed by the party against whom enforcement of the change, waiver or
estoppel is sought.
Section 38.07.
Except as otherwise provided in this Lease, the terms hereof
shall be binding upon and shall inure to the benefit of the heirs,
executors, administrators, successors and assigns, respectively, of
Landlord and Tenant. Each term and each provision of this Lease to
be performed by Tenant shall be construed to be both a covenant and a
condition.
Section 38.08.
Intentionally Omitted.
Section 38.09.
Each party represents to the other that the execution hereof by
the parties signing on behalf of such party has been duly authorized.
Section 38.10.
If any provision of this Lease, or its application to any
situation shall be invalid or unenforceable to any extent, the
remainder of this Lease, or the application thereof to situations
other than that as to which it is invalid or unenforceable, shall be
valid and enforceable to the fullest extent permitted by law unless
as a result thereof, the Rental payable hereunder is reduced, in
which case, Landlord shall have the right to terminate this Lease
upon written notice to Tenant.
Section 38.11.
Each party hereby agrees that any legal action or proceeding
with respect to the Lease may be brought in the courts of the State
of New York in the County of Nassau, as the party commencing the
action may elect. By execution and delivery of this Lease, each
party accepts with regard to any such action or proceeding, for
itself and in respect of its property, generally and unconditionally,
the jurisdiction of the aforesaid court. Nothing herein shall affect
the right of the party commencing the action to commence legal
proceedings or otherwise proceed against the other party in any other
jurisdiction in which assets of the party being sued are located or
to serve process in any manner permitted by applicable law. Each
party further agrees that final judgment against it in any such
action or proceeding shall be conclusive and, to the extent permitted
by applicable law, may be enforced in any other jurisdiction within
or outside the United States of America by suit on the judgment.
Section 38.12.
Tenant represents and warrants that Tenant is aware of the
requirements established for public accommodations under the
Americans with Disabilities Act of 1990 ("ADA") and Title 8 of the
New York City Administrative Code ("Code") and other governmental
requirements regarding accessibility of such accommodations by
disabled persons. Tenant agrees to bear sole responsibility for
complying with such laws, including the cost of making reasonable
accommodations to insure such accessibility, and to hold Landlord
harmless from and against any loss, claims, costs or expenses,
including reasonable attorneys' fees, associated with Tenant's
failure to comply with the ADA or the Code, so long as Landlord shall
have provided its reasonable cooperation in executing such
applications for government filings as may be necessary to achieve
compliance. The obligations of this Section shall survive
termination of this Lease.
Section 38.13.
Tenant covenants and agrees that neither it nor its permitted
assignees, subtenants or any other permitted occupant of the Premises
shall, during the term hereof, use, create or generate any material
or substance in the operation of its business which constitutes or
may constitute a hazardous substance under any applicable city, state
or federal laws, rules, regulations or ordinances which may now be in
effect or may hereafter be adopted unless Tenant shall make
appropriate and lawful arrangements for the handling, containment,
removal and disposition of such substances, nor shall Tenant allow
any such material or substance to remain in the Premises upon
expiration of this Lease or any extended term thereof. Tenant
further covenants and agrees for itself and its permitted successors
and assigns that it shall indemnify and hold harmless Landlord, any
mortgagee of the Building of which the Premises forms a part, or any
lessee of the entire Building of which the demised Premises forms a
part and any successors thereof, from and against any and all claims,
costs, causes of action or any other expenses of any kind or
character which may be incurred by them as a result of Tenant's
breach of this covenant. The provisions of this article shall
survive the expiration or sooner termination of this Lease.
ARTICLE 39
Broker
Landlord and Tenant represent to each other that they have not
dealt with any broker or finder other than Xxxxxxx Xxxxxxxx of
Prudential Xxxxxxx Xxxxxxx Real Estate, 110 Xxxx Xxxxxxx Road, Suite
105, South Huntington, New York 11746 in connection with this Lease.
Landlord and Tenant shall indemnify and hold each other harmless from
and against any and all claims, costs and expenses (including court
costs and reasonable attorneys' fees, that may be incurred by the
other as a result of claims made or suits brought by any brokers,
finders or consultants by reason of such party's dealings. The
provisions of this Section 39 shall survive the expiration or earlier
termination of this Lease.
IN WITNESS WHEREOF, the parties have executed this agreement the
date and year first above written.
Landlord:
65 RUSHMORE REALTY, LLC
By: /s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Member
Tenant:
DIONICS INC.
By: __/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, President
