Exhibit 10.12
Agreement of Lease, made as of this 22nd day of April 1997, between RECKSON FS
LIMITED PARTNERSHIP, a partnership having its principal office at 000
Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 party of the first part, hereinafter
referred to as OWNER, and LOGIMETRICS, INC., with an address of 000-00 Xxxxxx
Xxxxxx, Xxxxxxxxx, 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 14,000 square feet of space as indicated as cross-hatched on
Exhibit ___ in the building containing approximately 28,000 square feet known as
00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx for the term of seven (7) years (or until
such term shall sooner cease and expire as hereinafter provided) to commence as
provided in Paragraph 80 in the Rider annexed hereto, and to end on the 31st day
of July two thousand and four, both dates inclusive, at an annual rental rate of
as set forth in the 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
contained therein, if any, 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 installment(s) on the execution hereof (unless this
lease be a renewal).
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
1. Occupancy: Tenant shall pay the rent as above and as herein-after
provided.
2. Use: Tenant shall use and occupy demised premises for assembly,
distribution, light manufacturing and testing of communication and electronic
equipment, uses ancillary thereto and administrative offices associated
therewith, provided such use is in accordance with the Certificate of Occupancy
for the building, if any, and for no other purpose.
3. Alterations: Tenant shall make no changes in or to the demised premises of
any nature without Owner's prior written consent which consent shall not be
unreasonably withheld or delayed. Subject to the prior written consent of Owner,
and in 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, at its expense, before making any alterations,
additions, installments 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, 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, [garbled unintelligible
lauguage] 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 to 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.
4. Repairs: Subject to the provisions of Article 50 of the Rider
annexed hereto, 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 the windows and window frames and, the fixtures and appurtenances
therein and at Tenant's sole cost 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, neglect 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 or 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. Tenant shall give Owner prompt notice of any defective
condition in any plumbing, heating system or electrical lines located in the
demised premises and following such notice, Owner shall remedy the condition
with due diligence, but at the expense of Tenant, if repairs are necessitated by
damage or injury attributable to Tenant, Tenant's servants, agents, employees,
invitees or licensees as aforesaid. 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.
5. Window Cleaning: Tenant will not clean nor require, permit,
[garbled unintelligble language] 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.
6. Requirements of Law, Fire Insurance, Floor Loads: 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, whether or not arising out of
Tenant's use or manner of use thereof, or, with respect 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 any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all the 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 the 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 settlings sufficient, in Owner's judgment, to absorb and
prevent vibration, noise and annoyance.
7. Subordination: 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.
8. Property - Loss, Damage, Reimbursement, Indemnity: Owner or its
agents shall not be liable for any damages to property of Tenant or of others
entrusted to employees of the building, nor for loss of or damage to any
property of Tenant by theft or otherwise, not for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due in 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 (or 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 in 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, damages, 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' agents, contractors, employees, invitees or licensees. Tenant'
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' expense, resist
or defend such action or proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
9. Destruction, Fire and Other Casualty: (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 of the casualty and thenceforth shall cease until 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 tendered 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'
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 by 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. 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.
10. Eminent Domain: If the whole or any material 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.
12. Electric Current: 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 [garbled unintelligible language] to the
building or the [garbled unintelligble language] or 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.
13. Access to Premises:
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, 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 on 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 not 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 purchases 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. If during the last month of the
term Tenant shall have removed all or substantially all of Tenant's property
therefrom. Owner may immediately enter, alter, renovate or redecorate the
demised premises without limitation or abatement of rent, or incurring liability
to Tenant for any compensation and such act shall have no effect on this lease
or Tenant's obligations hereunder.
14. Vault, Vault Space, Areas: 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 the 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
any liability nor shall Tenant be entitled to any compensation or elimination 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.
15. Occupancy: 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, except as specifically provided elsewhere in this
Lease, 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, Tenant shall be responsible for and
shall procure and maintain such license or permit.
16. Bankruptcy: (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be canceled 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; 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 in any
court, commission or tribunal, the amount 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.
17. Defaults: (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 Section 365 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 have failed, after
thirty (30) 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; then in any one or more of such
events, upon Owner serving a written thirty (30) days notice upon Tenant
specifying the nature of said default and upon the expiration of said thirty
(30) 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 with said thirty (30) day period, and if
Tenant shall not have diligently commenced during such default within such
thirty (30) 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 of 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 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.
18. Remedies of Owner and Waiver of Redemption: 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 of Tenant to
observe and perform said Tenant's 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 access, if
any, of such net rents collected over the sum 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 the
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.
19. Fees and Expenses: 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 beyond the expiration of all applicable cure periods provided herein for
the cure thereof 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 Owners as damages.
20. Building Alterations and Management: 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. 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.
Such building alterations shall not materially affect Tenant's rights hereunder
and Owner hereby agrees to use its reasonable efforts to minimize its
interference with the operation of Tenant's business at the demised premises.
21. No Representations by Owners: Except as specifically provided
elsewhere in this Lease, 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 tendered 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 an 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.
22. End of Term: 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.
23. Quiet Enjoyment: 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.
24. Failure to Give Possession: 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 in 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 233-a of the New York Real Property Law.
25. No Waiver: 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 net 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 tendered 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 payer of such
rent or as a consent by Owner to an assignment or subletting by Tenant of the
demised premises to such payer, 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.
26. Waiver of Trial by Jury: 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 of whatever nature or description in any such proceeding.
27. Inability to Perform: 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 labor 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.
28. Bills and Notices: 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 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.
29. Water Charges: 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 or the demised premises or any part thereof 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 Tenant's Proportionate Share (hereinafter defined) % ($ ) 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 and collect any monies to be paid by Tenant or paid by Owner for any of
the reasons or purposes hereinabove set forth. Notwithstanding anything
contained herein to the contrary, Tenant shall not be obligated to pay for any
additional costs incurred in the event any other tenant uses the building water
supply for non-lavatory purposes.
30. Sprinklers: 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 in 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 Tenant's Proportionate Share 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.
33. Captions: 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.
34. Definitions: 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 relieved 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 IIVAC service.
35. Adjacent Excavation: If an excavation shall be made upon land
adjacent to the demised premises, or shall be authorized to be Sharing: 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 in
support the same by proper foundations without any claim for damages or
indemnity against Owner, or diminution or abatement of rent.
36. Rules and Regulations: 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 agents 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.
Landlord hereby agrees not to enforce the provisions of any rules and
regulations in a manner which discriminates against Tenant.
37. Glass: 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.
38. Estoppel Certificate: Either party at any time, and from time to
time, upon at least 10 days' prior notice by the other party shall execute,
acknowledge and deliver to such party, and/or to any other person, firm or
corporation specified by such party, 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 in which the rent and additional rent have been paid, and
stating whether or not there exists any default by such party under this Lease,
and, if so, specifying each such default.
39. Directory Board Listing: 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 at the consent by Owner to an assignment or
subletting by Tenant to such person or persons.
40. Successors and Assigns: 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.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
RECKSON FS LIMITED PARTNERSHIP
Witness for Owner: By: RECKSON FS INC.,
it general partner
______________________________ By:/s/Xxxxxxxx Xxxxxxx (L.S.)
_______________________________
Xxxxxxxx Xxxxxxx
Witness for Tenant: LOGIMETRICS, INC.
______________________________ By:/s/Xxxxxxx Xxxxxxx (L.S.)
_______________________________
Xxxxxxx Xxxxxxx
ACKNOWLEDGMENTS
CORPORATE TENANT
STATE OF NEW YORK, ss.:
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
in
that 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, ss.:
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.
__________________________________
IMPORTANT - PLEASE READ
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, stairways, 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 used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and slideguards.
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 tables 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.
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 [garbled
unintelligble language] of builders 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. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Owner the cost thereof.
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 LEASE dated April 22, 1997 between RECKSON FS LIMITED PARTNERSHIP, as
Owner, and LOGIMETRICS, INC., as Tenant
41. This lease shall not be recorded. No memorandum of this lease shall be
recorded without the express written consent of Owner.
42. The invalidity or unenforceability of any portion of this lease shall in no
way affect the validity or enforceability of any of the provisions
contained in this lease.
43. There are no oral agreements between the parties hereto affecting this
lease and this lease supersedes and cancels any and all previous
representations, negotiations, arrangements and understandings, if any,
between the parties hereto with respect to the subject matter hereof, and
shall not be used to interpret or construe this lease.
44. Tenant shall furnish and pay for, at its sole cost and expense, all
utilities supplied to the demised premises by any utility company, whether
public or private, including but not limited to gas, electricity and
telephone. Water shall be provided to the demised premises through a common
meter but Tenant shall pay for the cost thereof pursuant to Article 66
below.
45. With respect to all work performed by or on behalf of Tenant in the demised
premises, Tenant will deliver to the Owner certificates evidencing Worker's
Compensation Insurance and Contractor's General Liability Insurance in the
amounts set forth in Paragraph 75(a) herein.
46. It is understood and agreed that in the event that sewer lines are
installed or brought to the building of which the demised premises forms a
part, the Owner shall have no obligation to connect the demised premises to
such sewer lines; however, the Tenant may, at its own cost and expense,
connect to such sewer lines. In the event the Owner is required to connect
the building to such sewer lines, Tenant shall bear Tenant's Proportionate
Share (as hereinafter defined) of all costs and expenses incurred by the
Owner, directly or indirectly, in connection with the Owner's compliance
with such requirement. Notwithstanding the foregoing, if Owner is required
to connect the building to sewer lines during the term or any renewal term
hereunder, Tenant shall only pay for one-fifteenth (1/15) of the cost of
such sewer installation, as such installation would be capitalized in
accordance with GAAP. As of the date hereof, Owner has not received any
written notice that it is required to connect the building to any sewer
lines.
47. Wherever in this lease there is any conflict between the provisions of any
of the printed portions of the lease and the typewritten portions of the
lease, the typewritten provisions shall be deemed to supersede the printed
provisions.
48. Tenant shall pay to Owner, as additional rent, Tenant's Proportionate Share
of Owner's charges for providing sprinkler fireline service. For purposes
of this Lease, the term
"Tenant's Proportionate Share" shall mean fifty (50) percent, as the same
may be amended from time to time based upon the formula set forth in
Paragraph 51(c) hereof.
49. Any references in the printed portions of this lease to the City of New
York and the Administrative Code of the City of New York are deemed
deleted, and where applicable the town in which the demised premises is
located and other local governmental authorities and their ordinances shall
be substituted in lieu thereof.
50. During the full term of this lease, Owner shall make all structural repairs
to the demised premises except those which shall have been occasioned by
the acts of omission or commission of Tenant, its agents, employees or
invitees. Structural repairs are hereby defined to be repairs to the roof,
foundation footings, the bearing walls, foundation and the structural
steel. Except as aforesaid, Tenant shall, at its own cost and expense, keep
the demised premises in good condition, repair and appearance at all times
throughout the term of this lease including the electrical, heating,
plumbing, sprinkler and air-conditioning facilities exclusively servicing
the demised premises. Except as set forth elsewhere in this lease, Owner
shall be responsible for all electrical, heating, plumbing, sprinkler and
air-conditioning facilities servicing the building except for facilities
exclusively servicing the demised premises. Tenant shall at all times
obtain and keep in full force and effect for the benefit of Owner and
Tenant with a responsible company doing business in Suffolk County a
service repair and maintenance contract with respect to the heating,
ventilating and air-conditioning systems servicing the demised premises. A
copy of such contract and renewals thereof shall upon issuance and
thereafter not later than ten (10) days prior to expiration be furnished to
Owner together with evidence of payment. Owner represents and warrants to
Tenant that the demised premises and the electrical, heating, plumbing,
sprinkler, cesspool and air-conditioning facilities in or serving the
demised premises shall be in good working order and condition as of the
Term Commencement Date and, in connection with the HVAC system only, the
same shall be in good working order for one (1) year after the Term
Commencement Date. Owner shall, at Tenant's sole cost and expense, pump out
the cesspool as and when required. Tenant shall be responsible for the
entire cost and expense incurred in connection with Owner pumping out the
cesspool for as long as Tenant remains the only tenant in the building. In
the event there are other tenants occupying space in the building, Tenant
shall be responsible for Tenant's Proportionate Share of such cost and
expense.
51. If, in any year during the term of this lease or any renewal, extension or
modification thereof, real estate taxes (as hereinafter defined) shall
increase over and above Owner's basic tax liability (as hereinafter
defined), Tenant covenants and agrees to pay Tenant's Proportionate Share
of such increase as additional rental, on the rental installment date
immediately following receipt of "Owner's Statement" (hereinafter defined).
(a) The term "real estate taxes" shall be deemed to mean all taxes and
assessments, special or otherwise, assessed upon or with respect to the
ownership and all other taxable interests in the land and improvements
thereon of which the demised premises are part, imposed by Federal, State
or local governmental authority or any other taxing authority having
jurisdiction over Owner's tax lot or lots, but shall not include income,
intangible, franchise, capital stock, estate or inheritance taxes, or taxes
based upon the receipt of rentals (unless the same shall be in lieu of
"real estate taxes" as herein defined by whatever name the tax may be
designated).
(b) "Owner's basic tax liability" shall be a sum equal to the lesser of the
amount of taxes as assessed or the said taxes as reduced by appropriate
proceedings, against the land, buildings and improvements of which the
demised premises are part in the tax year 1996/97, excluding, however,
taxes for special assessments for local improvements not located on
property owned by Owner.
(c) "Formula" -
Tenant's total
square footage x Increase = Tenant's share of increase (50%)
Total square footage
of building
(d) "Owner's Statement" shall be that written statement which Owner may at
any time deliver to Tenant containing a computation of the increase above
Owner's basic tax liability and the amount of Tenant's proportionate share
thereof. Upon Tenant's written request, Owner shall provide Tenant with a
copy of the applicable tax xxxx with Owner's delivery of Owner's Statement.
The failure of Owner to deliver an Owner's Statement as provided above
shall not prejudice nor waive the right of Owner to deliver such statement
for any subsequent tax year, nor from including in said statement, as
additional rental, Tenant's Proportionate Share of any increase for any
year in which no Owner's Statement was delivered to Tenant, but for which
Tenant was otherwise obligated to pay such additional rental. In the event
Owners basic tax liability is reduced as a result of any appropriate
proceeding, Owner shall have the right to adjust the amount of additional
rental hereunder to reflect the new basic tax liability of the Owner, and
Tenant agrees to pay the amount of said adjustment on the next rent
installment day immediately following receipt of a written statement from
Owner setting forth the amount of said adjustment. In no event shall the
base year taxes be less than $44,821.80. Further, in no event shall the
rent due hereunder be reduced as a result of a reduction in the real estate
taxes assessed against the land and the improvements thereon of which the
demised premises forms a part.
(e) With respect to any period at the expiration of the term of this lease
which shall constitute a partial tax year, Owner's Statement shall
apportion the amount of the additional rental due hereunder. The obligation
of Tenant in respect of such additional rental applicable for the last year
of the term of this lease or part thereof shall survive the expiration of
the term and any renewal term of this lease; provided, however, that if
Owner fails to render such Owner's Statement within three (3) years
following the end of any term or renewal term hereunder, no payment of
Tenant's Proportionate Share of real estate taxes shall be due for such tax
year.
(f) Tenant shall not, without Owner's prior written consent, institute or
maintain any action, proceeding or application in any court or body or with
any governmental authority for the purpose of changing the real estate
taxes. However, if Owner has failed to commence such a proceeding by the
thirtieth (30th) day prior to the final date to file challenges for the tax
year in question and Owner has not provided to Tenant in writing upon
Tenant's written request a reasonable justification for not doing so prior
to such thirtieth (30th) day, then Tenant shall be permitted to commence
such a proceeding for the tax year in question at Tenant's sole cost and
expense and upon prior notice to Owner. In the event Tenant commences such
a proceeding as permitted by this Paragraph, Tenant shall furnish Owner
with copies of all documents delivered and received by or on behalf of
Tenant in connection with said proceeding. Owner agrees to cooperate with
Tenant in commencing such a proceeding in Owner's name and to execute any
documentation reasonably requested by Tenant in connection with said
proceeding. In the event any such action initiated by Owner or Tenant is
successful, then Tenant shall receive, or have credited against its rent
thereafter due (at Owner's option), or, following termination of or
expiration of this Lease (provided such termination is not a result of
Tenant's uncured default hereunder), Owner shall reimburse Tenant for any
tax refund or credit obtained thereby to the extent said real estate taxes
were actually paid by Tenant (after reimbursement to the appropriate party
for reasonable legal fees and other customary out of pocket expenses).
52. If any increase in real estate taxes shall be due to improvements made or
performed by or on behalf of Tenant, such increases shall be paid in full
by Tenant without apportionment.
53. At the request of Owner, Tenant agrees to furnish Owner with a current
financial statement prepared by a certified public accountant or such other
financial information regarding Tenant which is available to the public.
54. The acceptance of rent from any person, association, partnership or
corporation other than the Tenant herein named, shall in no way be deemed
to establish a tenancy with said person, association, partnership or
corporation for making such payment, and shall in no way be deemed to
relieve the Tenant from any and all obligations hereunder.
55. The mailing or delivery of a lease by the Owner to a possible Tenant, its
agent or attorney, shall not be deemed an offer nor shall any obligation or
liability be created on the part of Owner until such time as a lease, duly
executed by the Owner, is delivered to such possible Tenant, its agent or
attorney.
56. Tenant agrees to pay, as additional rent, Tenant's Proportionate Share of
Owner's cost of maintenance and repair of the landscaped and parking areas
which are used in common by all of the tenants of the building, including,
without limitation, snow and ice removal and the cost of the maintenance
and upkeep of the water drainage systems and landscape maintenance. Owner
shall provide the foregoing services throughout the term and any renewal
term hereunder.
57. If an institution furnishing a mortgage loan on the demised premises or the
building shall require a change or changes in this lease as a condition of
such financing and if Tenant should refuse to agree thereto, then Owner may
terminate this lease at any time, provided such changes shall not
substantially alter the obligations of Tenant or impose on Tenant any
conditions more burdensome than as otherwise exist hereunder (such as an
increase in any monetary obligation of Tenant hereunder or a modification
of the term or any of Tenant's option or offer rights hereunder).
58. Tenant covenants that the demised premises will not be used so as to
interfere with other tenants in the building. Tenant also covenants that no
noise or noxious fumes or odors will be created by Tenant so as to
interfere with the quiet enjoyment of the other tenants of their respective
demised portions of the building.
59. Tenant shall not obstruct or encumber, nor cause to be obstructed or
encumbered, the sidewalks, area ways or other public portions of the
building of which the demised premises forms a part, including, without
limitation, the parking area, driveways and access areas adjacent to the
demised premises and used in conjunction therewith and adjacent to the
building; nor shall Tenant use same nor permit same to be used for any
purpose other than ingress and egress to and from the demised premises.
However, Tenant may use the loading area for loading and unloading.
60. In the event Tenant does not vacate the demised premises upon the
expiration date of this lease, or upon the expiration of any option period
(whether such expiration date shall be the expiration date provided
hereunder or the date of the termination of this lease as provided
hereunder), then and in that event Tenant shall remain as a month to month
Tenant at the monthly rental of one hundred seventy-five (175%) percent of
the rent payable by Tenant for the third month prior to the Expiration Date
(hereinafter defined) in addition to the escalations or additional rent
payable pursuant to the terms of this lease.
61. It is agreed that Owner shall do certain work in and to the demised
premises at Owner's cost and expense prior to the commencement of the lease
term herein. Said items are set forth in Schedule "A" annexed hereto and
made a part hereof. Except for Owner's work, Tenant agrees to accept the
demised premises in its "as is" condition.
Notwithstanding anything contained in this lease to the contrary, subject
to such circumstances set forth in Article 27 hereof and subject further to
the provisions of this Article, Owner hereby agrees to substantially
complete the demised premises by the date which is sixty-three (63) days
from the date that this lease is fully and unconditionally executed by both
Owner and Tenant (the "SC Date"). "Substantially complete" as used herein
is defined to mean when the only items to be completed are those which do
not interfere with the Tenant's occupancy and substantially full enjoyment
of the demised premises; but if Owner shall be delayed in such "substantial
completion" as a result of (a) Tenant's failure to furnish plans and
specifications; (b) Tenant's request for materials, finishes or
installations other than Owner's standard; (c) Tenant's changes in said
plans; (d) the performance or completion of any work, labor or services by
a party employed by
Tenant; or (e) Tenant's failure to approve final plans or working drawings;
then the Rent Commencement Date (as hereinafter defined) shall be
accelerated by the number of days of such delay.
If Owner does not substantially complete the demised premises by the SC
Date, subject to such circumstances set forth in Article 27 hereof and
subject further to the provisions of this Article, Tenant shall receive, as
its sole and exclusive remedy, a rent credit of $354.00 per day for each
day thereafter until the date Owner substantially completes the demised
premises. In addition, if Owner does not substantially complete the demised
premises by the date which is one hundred and fifty (150) days from the
date that this lease is fully and unconditionally executed by both Owner
and Tenant, Tenant shall have, as its sole and exclusive remedy, the right
to terminate this lease upon its delivery of written notice thereof to
Owner by the date which is one hundred and sixty (160) days from the date
that this lease is fully and unconditionally executed by both Owner and
Tenant.
62. Tenant covenants that it shall not assign this lease nor sublet the demised
premises or any part thereof without the prior written consent of Owner in
each instance, which consent shall not be unreasonably withheld or delayed,
except on the conditions hereinafter stated. Tenant may assign this lease
or sublet the demised premises with Owner's written consent provided:
(a) That such assignment or sublease is for a use which is in compliance
with the then existing zoning regulations and the certificate of occupancy
for the building;
(b) That at the time of such assignment or subletting, there is no default
under the terms of this lease on Tenant's part which has not been cured
prior to the expiration of all applicable grace periods;
(c) That in the event of an assignment, the assignee assume in writing the
performance of all of the terms and obligations to be performed by Tenant
under this lease from and after the date of such assignment;
(d) That a duplicate original of said assignment or sublease be delivered
by certified mail to Owner at the address herein set forth within ten (10)
days from the said assignment or sublease;
(e) That, in the event Tenant shall request Owner's consent to a proposed
assignment of this lease or proposed sublease of all or a portion of the
Demised Premises, Tenant shall pay or reimburse to Owner the reasonable
attorney fees incurred by Owner in processing such request (not to exceed
one thousand ($1,000.00) dollars).
(f) Such assignment or subletting shall not, however, release Tenant from
its liability for the full and faithful performance of all of the terms and
conditions of this lease;
(g) 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 and additional rent from the
assignee, undertenant or occupant, and apply the net amount collected to
the rent and additional rent herein reserved;
(h) Notwithstanding anything contained in this Article 62 to the contrary,
no assignment or underletting shall be made by Tenant in any event until
Tenant has offered to terminate this lease as of the last day of any
calendar month during the term hereof and to vacate and surrender the
demised premises to Owner on the date fixed in the notice served by Tenant
upon Owner (which date shall be prior to the date of such proposed
assignment or the commencement date of such proposed sublease), and Owner,
within thirty (30) days after the receipt thereof, has not accepted in
writing the offer by Tenant to cancel and terminate this lease and to
vacate and surrender the demised premises. The provisions of this Article
62(h) shall not apply with respect to a sublease of the demised premises
for less than 1,400 square feet of space (an "Acceptable Sublease"). Owner
shall have no obligation whatsoever to alter the demised premises
(including, without limitation, the alteration of the bathrooms, utility
meters, entrances and corridors) in connection with an Acceptable Sublease.
(i) The provisions of the foregoing Paragraph 62(h) shall be inapplicable
and Owner's consent shall not be required as to any assignment or
subletting to any corporation which is a successor to Tenant by merger or
consolidation, or is the parent or a wholly owned subsidiary of Tenant or
such successor corporation, or as part of a bona fide sale or other
conveyance by Tenant of its entire business as a going concern or of all or
substantially all of its assets or to Tenant's shareholders in liquidation
or dissolution.
(j) Without affecting any of its other obligations under this lease, except
with respect to any permitted assignment or subletting under subparagraph
62(i) above, Tenant will pay Owner as additional rent any sums or other
economic consideration, which (i) are actually received by Tenant as a
result of an assignment or subletting whether or not referred to as rentals
under the assignment or sublease (after deducting therefrom the reasonable
costs and expenses incurred by Tenant in connection with the assignment or
subletting in question provided such costs were approved in writing by
Owner when it approved the assignment or sublease); and (ii) exceed in
total the sums which Tenant is obligated to pay Owner under this Lease
(prorated to reflect obligations allocable to that portion of the demised
premises subject to such assignment or sublease), it being the express
intention of the parties that Tenant shall not be in any manner whatsoever
be entitled to any profit by reason of such sublease or assignment. The
failure or inability of the assignee or subtenant to pay rent pursuant to
the assignment or sublease will not relieve Tenant from its obligations to
Owner under this Paragraph. Tenant will not amend the assignment or
sublease in such a way as to reduce or delay payment of amounts which are
provided in the assignment or sublease approved by Owner.
(k) Owner agrees that it shall not unreasonably withhold its consent to a
subletting or assignment in accordance with the terms of this Paragraph 62.
In determining reasonableness, there shall be taken into account the
character and reputation of the proposed subtenant or assignee, the
specific nature of the proposed subtenant's or assignee's business and
whether same is in keeping with other tenancies in the building; the
financial standing of the
proposed subtenant or assignee; and the impact of all of the foregoing upon
the building and the other tenants of Owner therein. Owner shall not be
deemed to have unreasonably withheld its consent if it refuses to consent
to a subletting or assignment to an existing tenant in any building in the
Bohemia area which is owned by Owner or its affiliate or to a proposed
subtenant or assignee with whom Owner is negotiating a lease or if at the
time of Tenant's request, Tenant is in default, beyond applicable grace and
notice periods provided herein for the cure thereof, of any of the terms,
covenants and conditions of this lease to be performed by Tenant. At least
thirty (30) days prior to any proposed subletting or assignment, Tenant
shall submit to Owner a written notice of the proposed subletting or
assignment, which notice shall contain or be accompanied by the following
information:
(i) the name and address of the proposed subtenant or assignee;
(ii) the nature and character of the business of the proposed
subtenant or assignee and its proposed use of the premises to be demised;
(iii) the most recent three (3) years of balance sheets and profit and
loss statements of the proposed subtenant or assignee, if available to Tenant,
or other financial information satisfactory to Owner; and
(iv) such shall be accompanied by a copy of the proposed sublease or
assignment of lease.
63. Tenant shall have the right to use fifty (50) percent of the parking spaces
allocated to the building. The parking areas available for the use of the
Tenant herein and the other tenants of the building of which the demised
premises form a part are to be used by Tenant, its servants, employees,
agents, business invitees and patrons subject to the reasonable rules and
regulations of Owner and it is also understood and agreed that Owner shall
have the right at any time to modify or alter the parking layout and
traffic pattern in the parking areas and to diminish the available parking
areas without any liability to Tenant or any diminution or abatement of
rent or additional rent, provided the same is required by any governmental
body or agency having jurisdiction thereof and provided the available
parking areas are diminished only by a de minimis amount.
64. All janitorial work at the demised premises shall be done at the cost and
expense of Tenant. Tenant shall provide for its own trash, rubbish and
garbage removal at its own expense and all rubbish, trash and garbage shall
be kept at the demised premises subject to the rules and regulations of the
appropriate municipal authorities having jurisdiction thereof, and shall at
all times be kept in closed containers and inside the demised premises
except when necessary for the removal therefrom by the trash and garbage
removal company. Tenant shall be permitted to maintain a dumpster for
garbage removal outside the two (2) doors located in the rear of the
building.
65. Paragraph 32 of the printed portion of this lease is hereby deleted.
66. Tenant shall pay, as additional rent, Tenant's Proportionate Share of
Owner's cost for water consumed in the building. Tenant shall not use water
for other than normal lavatory purposes.
67. Supplementing Article 3 of the preprinted portion of this lease, any and
all alterations, installations, additions and improvements to the demised
premises and any and all structures or fixtures, except movable trade
fixtures not attached to the realty, installed by or on behalf of Tenant
which shall attach to the realty shall be deemed attached to the freehold
and automatically become the property of Owner upon installation, unless
Owner shall elect otherwise, which election shall be made by giving notice
to Tenant not less than thirty (30) days prior to the expiration or other
termination of this lease. If Owner elects to have Tenant remove same,
Tenant shall do so and repair, at its own cost and expense, any damage to
the demised premises caused by said removal. All alterations,
installations, additions and improvements made to the demised premises,
which, in each instance costs more than $5,000.00, shall be subject to
Owner's supervisory fee of 10% of the cost thereof. There shall be no
supervisory fee due in connection with any construction performed in
initially preparing the demised premises for Tenant's occupancy. In
receiving such fee, Owner assumes no responsibility for the quality or
manner in which such work is performed.
68. Tenant shall indemnify and hold Owner harmless against any and all claims,
suits, damages or causes of action for damages and from and against any
orders or decrees or judgments which may be entered in any suit brought for
damages or alleged damages resulting from any injury to person and/or
property or loss of life sustained in and about the demised premises,
including the violation of any Environmental Law (hereinafter defined)
during the term hereby demised, and from any and all fines that may be
imposed by reason of any violations noted or issued by, any municipal
department or other governmental bureau or agency having jurisdiction, and
from any and all legal fees and other charges to which the Owner may be put
in defending the same.
69. Tenant shall, at is own cost and expense, procure all necessary
certificates, permits, orders or licenses which may be required for the
conduct of its business by any governmental statute, regulation, ordinance
or agency and that all governmental requirements relating to the use or
uses of the demised premises by the Tenant shall be complied with by the
Tenant at its own cost and expense. Notwithstanding the provisions of
Paragraph 6 or this Paragraph 69, it is understood and agreed that Owner
shall deliver the demised premises to Tenant in compliance with all
applicable laws, rules and regulations. Owner shall, at its own cost and
expense, procure all necessary certificates, permits, orders, or licenses
which may be required for the performance of Owner's Work or for the
occupancy of the demised premises by Tenant, except for any certificates,
permits, orders, or licenses which may be necessitated because of Tenant's
particular use of the demised premises, as opposed to the general uses
permitted under this Lease.
70. In any case in which the rent or additional rent is not paid within ten
(10) days of the day when same is due, Tenant shall pay a late charge equal
to 5 cents for each dollar so due, and in addition thereto, the sum of
$100.00 for the purpose of defraying expenses incident to the handling of
such delinquent account. Tenant further agrees that the late charge imposed
is fair and reasonable, complies with all laws, regulations and statutes,
and constitutes an agreement between Owner and Tenant as to the estimated
compensation for costs and administrative expenses incurred by Owner due to
the late payment of rent by Tenant. Tenant further agrees that the late
charge assessed pursuant to this lease is not interest, and the late charge
does not create a borrower/lender or borrower/creditor relationship between
Owner and Tenant. The demand and collection of the aforesaid late charges
shall in no way be deemed a waiver of any and all remedies that the Owner
may have under the terms of this lease by summary proceedings or otherwise
in the event of a default in payment of rent or additional rent.
71. Tenant shall cause each insurance policy carried by it and insuring its
fixtures and contents, or the betterments and improvements made by Tenant,
against loss by fire and other hazards to be written in a manner so as to
provide that the insurer waives all right of recovery by way of subrogation
against Owner in connection with any loss or damage covered by any such
policy or policies. Owner shall not be liable to the Tenant for any loss or
damage caused by fire or other hazards. If Tenant cannot obtain such waiver
of subrogation provision, or if same is obtainable only by the payment of
an additional premium, Tenant shall notify Owner of such fact and Owner
shall have a period of ten (10) days from the receipt of such notice to
either (a) place such insurance in companies which will carry such
insurance with waiver of subrogation against Owner and which are reasonably
acceptable to Tenant or (b) agree to pay such additional premium if such
subrogation waiver is obtainable at an additional cost, or (c) require
Tenant to name Owner as an additional insured.
72. Owner will cause each insurance policy carried by Owner and insuring the
building and demised premises against loss by fire and other hazards to be
written in such a manner so as to provide that the insurer waives all right
of recovery by way of subrogation against Tenant in connection with any
loss or damage covered by such policy or policies. Tenant shall not be
liable to Owner for any loss or damage caused by fire or other hazard. If
Owner cannot obtain such waiver of subrogation provision or if same is
obtainable only by payment of an additional premium, Owner shall notify
Tenant of such fact and Tenant shall have a period of ten (10) days from
the receipt of such notice to either (a) place such insurance in companies
which will carry such insurance with waiver of such subrogation against
Tenant and which are reasonably acceptable to Owner, or (b) agree to pay
such additional premium if such subrogation waiver is obtainable at
additional cost, or (c) require Owner to name Tenant as an additional
insured.
73. In addition to the rights and remedies set forth in Paragraphs 17 and 18
hereof, Owner shall have the right to cancel this lease in the manner
therein provided in the event that Tenant shall have failed to pay any
installment of rent provided herein within ten (10) days after written
notice and demand for payment thereof or shall have defaulted in payment of
additional rent set forth herein for a period of twenty (20) days after
written notice and demand for payment of same.
74. If Tenant shall have a sanitary waste system for Tenant's exclusive use,
then Tenant shall be required to maintain, repair and replace same at
Tenant's sole cost and expense. In such event, Tenant shall not be required
to share in the cost and expense of the maintenance, repair and replacement
of any other sanitary waste system used by other tenants of the building of
which the demised premises forms a part.
75. (a) During the term of this lease, Tenant agrees to carry liability
insurance at its own cost and expense in the amount of $1,000,000.00 for
bodily injury and $100,000.00 for property damage, which insurance shall
also name Owner as an additional insured, and Tenant shall furnish Owner
with a new certificate of insurance within ten (10) days after the
expiration of any such policy.
(b) Tenant shall, as additional rent, reimburse Owner for Tenant's
Proportionate Share of Owner's premium for a liability insurance policy in
the minimum amount of $1,000,000.00 for bodily injury and $100,000.00 for
property damage covering the entire building of which the demised premises
forms a part, including common areas and parking areas.
(c) Tenant shall, as additional rent, reimburse Owner for Tenant's
Proportionate Share of all premiums for fire insurance upon the building,
including extended coverage, rental value, vandalism and malicious
mischief, to be maintained upon the building during the term of this lease.
Owner shall obtain and maintain all such insurance throughout the term and
any renewal term hereunder. Said insurance shall be in amount not less than
the full replacement value of the building, but if required by a mortgagee
granting a mortgage or mortgages on the building, then in an amount as
required by said mortgagee. The aforesaid charge shall be due and payable
to Owner as additional rent on the rent date next following the giving of
notice to Tenant by Owner of the amount due toward such premium. Upon
Tenant's written request, Owner shall provide Tenant with bills and/or
invoices evidencing the cost of the premiums for the insurance to be
maintained by Owner hereunder. The parties shall apportion such premium at
the commencement and termination of the lease term.
(d) If a steam boiler is required by Tenant, then Tenant shall also
reimburse Owner for the full premium which Owner shall pay for a policy of
boiler insurance, said reimbursement to be made by Tenant as additional
rent at the same time as the next monthly installment of rent shall be due
from Tenant after a notice from Owner of the amount of the premium.
(e) All policies of insurance to be supplied by Tenant and Owner shall be
obtained only from insurance companies licensed to do business in the State
of New York and will carry thereon and have endorsed the following:
(i) In the event of cancellation or material change in the policy
which may affect the Owner's interest, at least twenty (20) days prior to
such cancellation or material change, written notice of same will be given
to Owner.
(ii) Owner shall be named as an "Additional Insured" on all of
Tenant's policies except contents policies.
76. Owner and Tenant represent each to the other that the sole broker who
negotiated or brought about this lease or who might be entitled to the
payment of commission is Xxxxxxxxx Realty, Inc. and that no other person or
firm is entitled to the payment of any commission. The parties agree that
except as otherwise provided herein, if any claim is made for commission by
any broker through or on account of any acts of a party, that party shall
hold the other party harmless from and against any and all liabilities and
expenses in connection therewith including reasonable attorneys' fees in
defending any such action. Owner agrees to pay a commission to such
aforenamed broker pursuant to a separate agreement.
77. Tenant shall not, without the express written consent of Owner, enter upon
the roof or attach or install anything thereon nor make any alterations
thereto. Tenant shall be permitted to penetrate the roof for purposes of
installing vent piping provided: (a) Tenant submits plans and
specifications for the installation of such piping to Owner for Owner's
prior written approval, which approval may be withheld by Owner if such
installation may damage the structural integrity of the roof or interfere
with any service to be provided by Owner, and (b) Tenant hires Owner's roof
contractors to perform all such installation work.
78. Any sums of money required to be paid by Tenant to Owner in addition to the
rent reserved under Article 81, shall be deemed additional rent, shall be
paid without deduction or offset, and in the event Tenant fails to pay such
additional rent, Owner shall be entitled to the same remedies under this
lease or by law, as are available to Owner for the nonpayment of rent,
including, without limitation, summary dispossess proceedings.
79. In the event that Owner shall bring any proceeding against Tenant for
recovery of money damages, or for possession of the demised premises by
reason of nonpayment of rent or additional rent, or for nonperformance by
Tenant of the terms and conditions of this lease, or for breach of lease,
and Owner shall incur costs and expenses by reason thereof or by reason of
such default, such charges, including legal fees, shall be due and payable
from Tenant as additional rent and shall become immediately due and payable
upon the incurrence of same. In the event that Owner shall institute
summary proceedings for nonpayment of rent or additional rent, the legal
fees therefor shall be 25% of the amount demanded in the petition or
$500.00, whichever is greater. Said amount may be included in the petition
and shall be deemed additional rent. In the event Owner shall at any time
be in default hereunder, and if Tenant shall institute an action against
Owner based upon such default and Tenant shall be successful, Owner shall
within thirty (30) days after request therefor, reimburse Tenant for the
expenses of reasonable attorneys' fees and disbursements incurred by
Tenant.
80. The term of this lease shall commence on the date on which Owner
substantially completes the demised premises in accordance with Article 61
hereof (the "Term Commencement Date"). The term of this lease shall
terminate on the day preceding the day which is seven
(7) years after the Rent Commencement Date, hereinafter referred to as the
"Expiration Date", unless the term shall sooner terminate or be extended
pursuant to any of the terms, covenants or conditions of this lease or
pursuant to law. Tenant's obligation to pay rent shall commence on the date
which is sixty (60) days from the Term Commencement Date, hereinafter
referred to as the "Rent Commencement Date" subject to the terms of Article
61 hereof.
81. During the term of this lease, Tenant shall pay minimum annual rent
("rent") as follows:
During the first year of the term of this lease commencing on the Rent
Commencement Date, the rent shall be $148,633.38 payable $31,850.01 for the
first month of such year and $10,616.67 for each of the second through
twelfth months.
During the second year, the rent shall be $132,495.96, payable in equal
monthly installments of $11,041.33.
During the third year, the rent shall be $137,795.88, payable in equal
monthly installments of $11,482.99.
During the fourth year, the rent shall be $143,307.72, payable in equal
monthly installments of $11,942.31.
During the fifth year, the rent shall be $149,040.00, payable in equal
monthly installments of $12,420.00.
During the sixth year, the rent shall be $155,001.60, payable in equal
monthly installments of $12,916.80.
During the seventh year, the rent shall be $139,968.30, payable $13,433.47
during each of the first through tenth months and $2,816.80 during each of
the eleventh and twelfth months.
The minimum annual rent hereinabove provided for shall be in addition to
all other payments to be made by Tenant as herein provided.
82. (a) Owner and Owner's agents and employees shall not be liable for, and
Tenant waives all claims for, loss or damage to Tenant's business or damage
to person or property sustained by Tenant resulting from any accident or
occurrence (unless caused by or resulting from the negligence of Owner, its
agents, servants or employees other than accidents or occurrences against
which Tenant is insured and except to the extent Tenant is contributorily
negligent) in or upon the demised premises or the building, including, but
not limited to, claims for damage resulting from: (i) any equipment or
appurtenances becoming out of repair; (ii) injury done or occasioned by
wind; (iii) any defect in or failure of plumbing, heating or air
conditioning equipment, electric wiring or installation thereof, gas,
water, or steam pipes, stairs, porches, railings or walks; (iv) broken
glass; (v) the backing up of any sewer pipe or
downspout;) (vi) the bursting, leaking or running of any tank, tub,
washstand, water closet, waste pipe, drain or other pipe or tank in, upon
or about the building or the demised premises; (vii) the escape of steam or
hot water; (viii) water, snow or ice being upon or coming through the roof,
skylight, trapdoor, stairs, doorways, show windows, walks or any other
place upon or near the building or the demised premises or otherwise; (ix)
the falling of any fixture, plaster, tile or stucco; and (x) any act,
omission or negligence of other tenants, licensees or of any other persons
or occupants of the building or of adjoining or contiguous buildings or of
owners of adjacent or contiguous property.
(b) If Owner or a successor in interest is an individual (which term as
used herein includes aggregates of individuals, such as joint ventures,
general or limited partnerships, or associations) such individual shall be
under no personal liability with respect to any of the provisions of this
lease, and if such individual is in breach or default with respect to its
obligations under this lease, Tenant shall look solely to the equity of
such individual in the land and building of which the demised premises form
a part for the satisfaction of Tenant's remedies and in no event shall
Tenant attempt to enforce any personal judgment against any other assets of
such individual or any principal, partner, employee or agent of Owner by
reason of such default by Owner.
83. INTENTIONALLY DELETED.
84. (a) Tenant shall not cause or permit the presence, use, disposal, storage,
or release of any Hazardous Substances (hereinafter defined) on or in the
demised premises or the land or building of which it is a part, except in a
manner and in quantities permitted under applicable law. Tenant shall not
do, nor allow anyone else to do, anything affecting the demised premises
that is in violation of any Environmental Law (hereinafter defined). Owner
shall have the right to inspect the demised premises and Tenant's
operations during normal business hours, after reasonable notice, for the
purpose of determining the existence or release of Hazardous Substances and
Tenant's compliance with Environmental Law. As used herein, "Hazardous
Substances" are those substances defined as toxic or hazardous substances
by Environmental Law, including, without limitation, the following
substances: gasoline, kerosene, other flammable or toxic petroleum
products, toxic pesticides and herbicides, volatile solvents, materials
containing asbestos or formaldehyde, and radioactive materials.
"Environmental Law" means federal and state laws and laws of the
jurisdiction where the demised premises are located that relate to health,
safety and environmental protection.
(b) Owner represents and warrants to Tenant that as of the Term
Commencement Date, the demised premises and the building shall be in
compliance with all applicable Environmental Law and that no Hazardous
Substances shall have been released at or disposed of at or about the
building or the demised premises, except in a manner and in quantities
permitted under applicable law.
85. The Owner shall furnish a security guard service for the building and other
structures. Tenant shall pay to Owner $1,120.00 during each year of the
term of this Lease (payable in
equal monthly installments of $93.34). Such charge shall be payable to the
Owner as additional rent with each installment of rent due hereunder.
86. Notwithstanding any provision in this lease to the contrary, the additional
rent which Tenant shall be required to pay to Owner pursuant to Paragraphs
48, 56, 75 and 85 of this lease in respect of amounts incurred by Owner
during the first year of the term (i.e., August 1, 1997 through July 31,
1998) of this lease only shall not exceed $5,600.00.
87. Owner hereby agrees that, upon execution of this lease and upon delivery by
the Tenant of the first month's rent and the insurance certificates
required hereunder, Tenant shall have the right to use and occupy the
demised premises prior to the Rent Commencement Date provided that Tenant
shall comply with all the obligations of Tenant under this lease with the
exception of the obligation to pay rent pursuant to Paragraph 81 of this
lease.
88. Tenant agrees that the value of the demised premises and the reputation of
the Owner will be seriously injured if the demised premises are used for
any obscene or pornographic purposes or if any obscene or pornographic
material is permitted on the premises. Tenant further agrees that Tenant
will not permit any of these uses by Tenant or a sublessee or assignee of
the demised premises. This Paragraph shall directly bind any successors in
interest to Tenant. Tenant agrees that if at any time Tenant violates any
of the provisions of this Paragraph, such violation shall be deemed a
breach of a substantial obligation of the terms of this lease and
objectionable conduct. Pornographic material is defined for purposes of
this Paragraph as any written or pictorial matter with prurient appeal or
any objects or instruments that are primarily concerned with lewd in or
prurient sexual activity. Obscene material is defined here as it is in
Penal Law Section 235.00.
89. Tenant shall not be permitted to store any items including, without
limitation, inventory, furniture and equipment, outside of the demised
premises or the building unless Tenant first obtains Owner's prior written
consent.
90. Owner shall, at Owner's sole cost and expense, and prior to the Rent
Commencement Date, convert the building from electric heat to gas heat.
91. The Tenant shall have the right to be exercised as hereinafter provided, to
extend the term of this lease for one period of five (5) years upon the
following terms and conditions:
(a) That at the time of the exercise of such right and at the time of the
commencement of such extension period, Tenant shall not be in default in
the performance of any of the terms, covenants or conditions which Tenant
is required to the right to lease the Partial Additional Premises, subject
to the terms and conditions of this Paragraph 92.
(b) In the event that Owner proposes to lease the Partial Additional
Premises and/or the Entire Additional Premises pursuant to the terms of
bona fide third party offer, Owner shall notify Tenant of the same by
written notice delivered to Tenant by certified mail, return receipt
requested (the "Offer Notice"). Tenant shall give written notice to Owner
of its
intent to exercise its right to lease the Partial Additional Premises
hereunder no later than seven (7) business days after Tenant's receipt of
the Offer Notice. Said written notice shall be delivered to Owner by
certified mail, return receipt requested; TIME BEING OF THE ESSENCE WITH
RESPECT TO ALL OF TENANT'S OBLIGATIONS HEREUNDER.
(c) In the event Tenant elects to lease the Partial Additional Premises,
the term "Combined Premises" shall, from and after the Effective Date (as
hereinafter defined), include both the Demised Premises and the Partial
Additional Premises. For purposes hereof, the term "Effective Date" shall
mean the date of delivery of possession of the Partial Additional Premises
to Tenant.
(d) Upon the exercise of Tenant's rights hereunder, Owner and Tenant shall
enter into a lease modification agreement effective as of the Effective
Date, which shall reflect the lease by Tenant of the Combined Premises in
accordance with all of the terms and conditions of the lease except that:
(i) Tenant shall accept the Partial Additional Premises in its then "as is"
condition; however, Owner shall provide an opening in the demising wall
connecting the Demised Premises and the Partial Additional Premises, (ii)
the rental rate shall be as set forth in subparagraph (e) hereof, (iii)
Tenant's Proportionate Share shall be equal to a fraction, the numerator of
which shall be the total number of rentable square feet contained in the
Combined Premises and the denominator of which shall be the total rentable
square feet contained in the Building, (iv) the number of parking spaces
available for use by Tenant shall be increased to reflect the increase in
Tenant's Proportionate Share and (v) Article 62(h) shall be modified to
provide that an Acceptable Sublease shall mean a sublease of the demised
premises for less than ten (10%) percent of the Combined Premises. In any
case, the base year for purposes of calculating Tenant's Proportionate
Share of real estate taxes due in accordance with Paragraph 51 hereof with
respect to the Partial Additional Premises shall be the tax year 1996/97.
Tenant shall pay the first month's rent and two additional months rent due
for the Partial Additional Premises prior to the Effective Date.
(e) The Offer Notice need not specify a rental rate for the Partial
Additional Premises nor shall Tenant be required to accept any rental rate
set forth therein. The initial rental rate for the Partial Additional
Premises shall be $8.50 per square foot of the Partial Additional Premises
if the Partial Additional Premises is leased to Tenant during the first
year of the term of this Lease. Thereafter, the initial rental rate for the
Partial Additional Premises shall escalate at a rate of four (4%) percent
compounded annually as of the commencement date of each succeeding lease
year during the term hereof. By way of example, if the Partial Additional
Premises is leased six (6) months into the first lease year of the initial
term of this Lease, the four (4%) percent escalation shall be effective six
(6) months thereafter on the commencement date of second lease year of the
initial term of this Lease.
(f) In the event Tenant leases the Partial Additional Premises, the renewal
option set forth in Article 91 hereof shall also apply to the Partial
Additional Premises. The rental rate for the Partial Additional Premises
shall reflect an eight (8%) percent increase over the rental rate for the
Partial Additional Premises which may have been due during the last year of
the initial term (adjusted to reflect any advanced rent paid by Tenant
hereunder) and, thereafter
the rental rate for the Partial Additional Premises shall escalate at a
rate of four (4%) percent compounded annually.
(g) Should Tenant fail to exercise its rights hereunder within the time and
in the manner required above, or waive such right in writing, Owner may
lease the Partial Additional Premises and/or the Entire Additional Premises
without any further obligations to Tenant; provided, however, that if Owner
does not consummate a lease of the Additional Premises with respect to the
first Offer Notice, Tenant's right of first refusal shall again apply with
respect to a second bona fide offer received by Owner only (the "Second
Offer"), which right shall be exercised by Tenant in strict accordance with
the provisions of this Paragraph 92. Should Tenant fail to exercise its
right hereunder with respect to the Second Offer within the time and in the
manner required above, or waive such right in writing, Owner may lease the
Partial Additional Premises and/or the Entire Additional Premises without
any further obligations to Tenant following such Second Offer.
(h) The right to lease the Partial Additional Premises is personal to
LogiMetrics, Inc. and shall not be transferable by operation of law or
otherwise.
93. Owner shall install, at Owner's sole cost and expense, Owner's standard
circular sign at the entrance of the demised premises. Owner shall also
furnish to Tenant one (1) listing on the building directory and one (1)
listing on the office park directory. The initial listings will be made at
Owner's expense and any subsequent changes by Tenant shall be made at
Tenant's expense.
94. Owner hereby represents and warrants that there presently are no mortgages
encumbering the demised premises and the building. Owner hereby agrees to
use its reasonable efforts to obtain a subordination, attornment and
nondisturbance agreement from Owner's future mortgagees on such future
mortgagee's standard form.
95. Owner hereby waives any lien on Tenant's personal property to which Owner,
in the absence of such waiver, might otherwise be entitled by statute,
common law or otherwise. Tenant covenants and agrees that no security
agreement, whether by way of conditional sales agreement, chattel mortgage,
title retention agreement, or other instrument of similar import (a
"Security Agreement") shall be placed upon any improvements made by Tenant
which are affixed to the realty. In the event that any of the machinery,
fixtures, furniture or equipment installed by Tenant in the demised
premises are purchased or acquired by Tenant subject to a Security
Agreement, Tenant undertakes and agrees (i) that no Security Agreement or
Uniform Commercial Code filing statement shall be permitted to be filed as
a lien against the building and/or the real property of which the demised
premises and the Building form a part, and (ii) to cause to be inserted in
any Security Agreement the following provision:
"Notwithstanding anything to the contrary herein,
this chattel mortgage, conditional sales agreement,
title retention agreement, or security agreement shall
not create or be filed as a lien against the land,
building and improvements comprising the real property
in which the
goods, machinery, equipment, appliances or other personal
property covered hereby are to be located or installed."
If any such lien, based on a Security Agreement or Uniform Commercial
Code filing statement is filed against the building or the real property of
which the demised premises and the building form a part, Tenant shall, within
thirty (30) days following notice thereof from Owner, cause such lien or notice
to be removed or discharged, at Tenant's cost and expense.
96. Notwithstanding anything contained in this lease to the contrary, Tenant
shall have access to the demised premises twenty four (24) hours a day,
seven (7) days a week.
RECKSON FS LIMITED PARTNERSHIP
BY: RECKSON FS, INC.,
its general partner
BY: /s/Xxxxxxxx Xxxxxxx
_____________________
Xxxxxxxx Xxxxxxx
LOGIMETRICS, INC.
BY: /s/Xxxxxxx Xxxxxxx
________________________
Xxxxxxx Xxxxxxx
April 22, 1997
LogiMetrics, Inc.
000-00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Re: Lease Agreement dated April 22, 1997 (the "Lease")
by and between Reckson FS Limited Partnership,
as landlord ("Landlord") and LogiMetrics, Inc.,
as tenant ("Tenant")
Gentlemen:
This letter shall confirm and memorialize the agreement between
Landlord and Tenant with respect to the installation of a satellite dish at the
building located at 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx (the "Building").
Landlord and Tenant agree as follows:
(1) In connection with Tenant entering into the Lease, Tenant may, at
its own cost and expense, install, operate, maintain and replace a satellite
dish (hereinafter the "Satellite Dish") on the roof of the Building from time to
time during the term of the lease.
(2) In consideration of the use of the space on the Building for the
installation, operation, maintenance and replacement of the Satellite Dish,
Tenant agrees to pay to Landlord, in addition to all sums payable by Tenant
under the Lease, the sum of $250.00 on the first day of each calendar month,
commencing on the first day of the first full calendar month immediately
following Landlord's approval of the initial installation and operation of the
Satellite Dish in accordance with the terms hereof and continuing on the first
day of each successive calendar month until such time as the Satellite Dish have
been permanently removed from the Building, and the roof of the Building has
been restored by Tenant, in accordance with the terms of this Agreement. Such
amounts shall be deemed to be additional rent under the Lease.
(3) Tenant shall not install, maintain or operate the Satellite Dish
until it receives the prior written approval of Landlord in each instance.
Landlord may approve or reject the installation, operation and replacement of
the Satellite Dish within a reasonable time after the Tenant submits: (a) plans
and specifications for the installation of the Satellite Dish, (b) copies of all
governmental and quasi-governmental permits, licenses and authorizations which
the Tenant will obtain at its own cost and expense; and (c) a certificate of
insurance evidencing insurance coverage as required by the Lease and any other
insurance reasonably required by the Landlord
for the installation, operation, maintenance and/or replacement of the Satellite
Dish. Landlord may withhold approval if the installation, operation, maintenance
and/or replacement of the Satellite Dish may damage the structural integrity of
the Building, interfere with any service provided by the Landlord or any tenant,
or reduce the amount of leasable space in the Building.
(4) Tenant covenants and agrees that neither Tenant nor its agents
will cause any damage to the roof during the installation, maintenance,
operation and/or replacement of the Satellite Dish. If Tenant hires contractors,
subcontractors or any other agent to install, maintain, operate or replace the
Satellite Dish, Tenant shall provide Landlord with a waiver of mechanics' lien
from all workers.
(5) If Landlord's insurance premium or real estate tax assessment
increases as a result of the Satellite Dish, Tenant shall pay such increase each
year, as additional rent under the Lease, upon receipt of a xxxx from the
Landlord.
(6) Tenant shall have no right to an abatement or reduction in the
amount of rent hereunder or under the Lease if for any reason the Tenant is
unable to use the Satellite Dish.
(7) Tenant covenants and agrees that the installation, operation,
maintenance, replacement and removal of the Satellite Dish will be at its sole
risk. Tenant agrees to indemnify and defend Landlord against all claims,
actions, damages, liability and expenses in connection with the loss of life,
personal injury, damage to property or business or any other loss or injury
arising out of the installation, operation, maintenance, replacement or removal
of the Satellite Dish. Tenant agrees to indemnify Landlord for all costs and
expenses (including reasonable attorneys' fees) incurred as a result of any
litigation concerning the Satellite Dish.
(8) Landlord, at its sole option, may require Tenant, at any time
prior to the expiration of this Agreement, to terminate the operation of the
Satellite Dish if it is causing physical damage to the structural integrity of
the Building, interfering with any other service provided by the Building, or
interfering with any other tenant's business.
If, however, Tenant can correct the damage caused by the Satellite
Dish to Landlord's reasonable satisfaction within sixty (60) days, Tenant may
restore its operation. If the Satellite Dish is not corrected and restored to
operation within sixty (60) days, Landlord, at its sole option, may require that
Tenant remove the Satellite Dish at its own expense.
(9) At the expiration or sooner termination of this Agreement or the
Lease or upon termination of the operation of the Satellite Dish, Tenant shall
be required to remove the Satellite Dish from the Building at its own cost.
Tenant shall remove and dispose of the Satellite Dish upon fifteen (15) days'
written notice. Tenant shall leave the portion of the Building where the
Satellite Dish was located, in good order and repair, reasonable wear and tear
excepted. If Tenant does not remove the Satellite Dish when so required, Tenant
hereby authorizes Landlord to remove and dispose of the Satellite Dish and
charge Tenant for all costs and expenses incurred. Tenant agrees that Landlord
shall not be liable for any property disposed or removed by Landlord.
(10) A default under the Lease shall be deemed to be a default under
this Agreement and a default under this Agreement shall be deemed to be a
default under the Lease.
Please sign in the space provided below to acknowledge your agreement
to the foregoing.
Very truly yours,
RECKSON FS LIMITED PARTNERSHIP
BY: RECKSON FS, INC.,
its general partner
BY: /s/Xxxxxxxx Xxxxxxx
_____________________
Xxxxxxxx Xxxxxxx
Agreed to this 22nd day of
April, 1997
LOGIMETRICS, INC.
By: /s/Xxxxxxx Xxxxxxx
____________________
Xxxxxxx Xxxxxxx
