Agreement of Lease, made as of this 31st day of January 2006, between
Agreement
of Lease,
made as
of this 31st day
of
January 2006,
between
CONSTITUTION
REALTY LLC,
a New
York limited liability company having an office at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, party of the first part, hereinafter referred to
as
Owner,
and
MMC
ENERGY NORTH AMERICA, LLC, a
domestic corporation, having an office at 1114 Avenue of the Xxxxxxxx,
00xx
Xxxxx,
Xxx Xxxx, 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
Space
Numbered 907
in
the
building known as 26
Broadway,
hereinafter referred to as the "Building",
in
the
Borough of Manhattan, City of New York, for the term of one
(1) year
(or
until such term shall sooner cease and expire as hereinafter provided) to
commence on the
first
day of
March
2006,
and to
end on the
twenty-eighth
day of
February
2007
both
dates inclusive, at an annual rental rate of
FOUR
THOUSAND TWO HUNDRED EIGHTY-SIX AND 76/100 ($4,286.76)
DOLLARS
per
annum, payable in equal monthly installments of THREE
HUNDRED FIFTY-SEVEN AND 23/100 ($357.23) DOLLARS
for the
period from the commencement of the term hereof through the 28th
day of
February 2006, and then:
THIRTY-EIGHT
THOUSAND FIVE HUNDRED EIGHTY AND 84/100 ($38,580.84)
DOLLARS
per
annum, payable in equal monthly installments of THREE
THOUSAND TWO HUNDRED FIFTEEN AND 07/100 ($3,215.07) DOLLARS
from
the
1st
day of
March 2006 through the balance of the term hereof.
All
monthly installments of rent shall be due and payable on the first day of each
and every month in advance without notice during said term and Tenant agrees
to
pay said monthly installments of rent and any additional rent that becomes
due
pursuant to this Lease or otherwise in lawful money of the United States which
shall be legal tender in payment of all debts and dues, public and private,
at
the time of payment at the 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).
In
the
event that, at the commencement of the term of this Lease, or thereafter, Tenant
shall be in default in the payment of rent or additional rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder
and
the same shall be payable to Owner as additional rent.
Lease
Page
1
The
parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent:
1. Tenant
shall pay the rent as above and as hereinafter provided.
Occupancy:
2. Tenant
shall use and occupy demised premises for general
and executive offices for Tenant’s energy merchant bank and asset management
business
and for
no other purpose.
Tenant
Alterations:
3. Tenant
shall make no changes in or to the demised premises of any nature without
Owner's prior written consent. Subject to the prior written consent of Owner,
and to the provisions of this numbered Article, Tenant at Tenant's expense,
may
make alterations, installations, additions or improvements which are
non-structural and do not affect utility services or plumbing and electrical
lines, in or to the interior of the demised premises by using contractors or
mechanics first approved by Owner. Tenant shall, before making any alterations,
additions, installations or improvements, at its expense, obtain all permits,
approvals 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 and Tenant agrees to carry and will cause Tenant's contractors and
sub-contractors to carry such worker's 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 for work claimed to have
been done for, or materials furnished to, Tenant, whether or not done pursuant
to this numbered Article, the same shall be discharged by Tenant within thirty
(30) days thereafter, at Tenant's sole cost and expense, by filing the bond
required by law. All fixtures and all paneling, partitions, railings and like
installations, installed in the demised premises at any time, either by Tenant
or by Owner in 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 (20) 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 numbered 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 trade
fixtures, moveable office furniture and equipment from the demised premises
or
upon removal of other installations as may be required by Owner, Tenant shall
immediately and at Tenant's sole cost and expense, repair and restore the
demised premises to the condition existing prior to any such 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 hereof, remaining in the demised premises after Tenant's removal shall
be
deemed abandoned and may, at the election of Owner, either be retained as
Owner's property or may be removed from the premises by Owner, at Tenant's
sole
cost and expense.
Lease
Page
2
Maintenance
and Repairs:
4. Tenant
shall, throughout the term of this Lease, take good care of the demised premises
and the fixtures and appurtenances therein. Tenant shall be responsible for
all
damage or injury to the demised premises or any other part of the Building
and
the systems and equipment thereof, whether requiring structural or nonstructural
repairs caused by or resulting from carelessness, omission, neglect or improper
conduct of Tenant, Tenant's subtenants, agents, employees, invitees or
licensees, or which arise out of any work, labor, service or equipment done
for
or supplied to Tenant or any subtenant or arising out of the installation,
use
or operation of the property or equipment of Tenant or any subtenant. Tenant
also shall repair all damage to the Building and the demised premises caused
by
the moving of Tenant's fixtures, furniture and equipment. Tenant promptly shall
make, at Tenant's expense, all repairs in and to the demised premises for which
Tenant is responsible, using only the contractor for the trade or trades in
question, selected from a list of at least two (2) contractors per trade
submitted by Owner. Any other repairs in or to the Building or the facilities
and systems thereof for which Tenant is responsible shall be performed by Owner
at Tenant's expense. Owner shall maintain in good working order and repair
the
exterior and structural portions of the building, including the structural
portions of the demised premises, and the public portions of the building
interior and the building plumbing, electrical, heating and ventilating systems
(to the extent such systems presently exist) serving the demised premises.
Tenant agrees to give prompt notice of any defective condition in the premises
for which Owner may be responsible hereunder. 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
others making 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. It is specifically agreed that Tenant shall
not be entitled to any setoff or reduction of rent by reason of any failure
of
Owner to comply with the covenants of this or any other article of this Lease.
Tenant agrees that Tenant's sole remedy at law in such instance will be by
way
of an action for damages for breach of contract. The provisions of this numbered
Article shall not apply in the case of fire or other casualty which are dealt
with in Article "9" hereof.
Window
Cleaning:
5. Tenant
will not clean nor require, permit, suffer or allow any window in the demised
premises to be cleaned from the outside in violation of Section 202 of the
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.
Lease
Page
3
Requirements
of Law, Fire Insurance, Floor Loads:
6. Prior
to
the commencement of the term hereof, if Tenant is then in possession, and at
all
times thereafter, Tenant, at Tenant's sole cost and expense, shall 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, 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, (including Tenant's permitted use)
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 this
Lease). 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 may, after securing
Owner to Owner's satisfaction against all damages, interest, penalties and
expenses, including, but not limited to, reasonable attorney's fees, by cash
deposit or by surety bond in an amount and in a company satisfactory to Owner,
contest and appeal any such laws, ordinances, orders, rules, regulations or
requirements provided same is done with all reasonable promptness and provided
such appeal shall not subject Owner to prosecution for a criminal offense or
constitute a default under any lease or mortgage under which Owner may be
obligated, or cause the demised premises or any part thereof or the Building
to
be condemned or vacated. Tenant shall not do or permit any act or thing to
be
done in or to the demised premises or the Building which is contrary to law,
or
which will invalidate or be in conflict with public utility, fire or other
policies of insurance at any time carried by or for the benefit of Owner with
respect to the demised premises or the Building, or which shall or might subject
Owner to any liability or responsibility to any person or entity or for property
damage. Tenant shall not keep anything in the demised premises or the Building
except as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization or 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
demised 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. Tenant shall pay all costs, expenses, fines,
penalties or damages, which may be imposed upon Owner by reason of Tenant's
failure to comply with the provisions of this numbered Article and if by reason
of such failure the fire insurance rate shall, at the beginning of this Lease
or
at any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. In any action or proceeding wherein Owner
and
Tenant are parties, a schedule or "make-up" of rate for the Building or demised
premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to the Building and the demised 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 the Building and the
demised premises. Tenant shall not place a load on 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 settings sufficient, in Owner's judgment, to absorb and prevent
vibration, noise and annoyance.
Lease
Page
4
Subordination:
7. This
Lease is subject and subordinate to all ground or underlying leases and to
all
mortgages which may now or hereafter affect such leases or the real property
of
which the demised premises are a part and to all renewals, modifications,
consolidations, replacements and extensions of any such underlying leases and
mortgages. This numbered Article shall be self-operative and no further
instrument of 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.
Property
- Loss, Damage, Reimbursement, Indemnity:
8. Owner
and
its agents shall not be liable for any damage to the 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, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence of Owner, its agents, servants or employees. Owner
and its agents will not be liable for any such damage caused by other tenants
or
persons in, upon or about the Building or caused by operations in construction
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 to any
compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction. Tenant
shall indemnify and save harmless Owner against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable attorneys 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 Tenant,
Tenant's agents, contractors, employees, invitees or licensees. Tenant's
liability under this Lease extends to the acts and omissions of any subtenant,
and any agent, contractor, employee, invitee or licensee of any subtenant.
In
case any action or proceeding is brought against Owner by reason of any such
claim, Tenant, upon written notice from Owner, will, at Tenant's sole cost
and
expense, resist or defend such action or proceeding by counsel approved by
Owner
in writing, which approval shall not be unreasonably withheld.
Destruction,
Fire and Other Casualty:
9. (a) If
the
demised premises or any part thereof shall be damaged by fire or other casualty,
Tenant shall give immediate notice thereof to Owner and this Lease shall
continue in full force and effect except as hereinafter set forth.
(b) If
the
demised premises are partially damaged or rendered partially unusable by fire
or
other casualty, the damages thereto shall be repaired by and at the expense
of
Owner and the rent, until such repair shall be substantially completed, shall
be
apportioned from the day following the casualty according to the part of the
demised premises which is usable.
Lease
Page
5
(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 demised
premises shall have been repaired or restored by Owner, subject to Owner's
right
to elect not to restore the same as hereinafter provided.
(d) If
the
demised premises are rendered wholly unusable or (whether or not the demised
premises are damaged in whole or in part) if the Building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this Lease by written notice to Tenant,
given within ninety (90) days after such fire or other casualty, specifying
a
date for the expiration of the Lease, which date shall not be more than sixty
(60) days after the giving of said notice, and upon the date specified in said
notice the term of this Lease shall expire as fully and completely as if said
date were the date set forth above for the termination of this Lease and Tenant
shall forthwith quit, surrender and vacate the demised premises without
prejudice however, to Owner's rights and remedies against Tenant under the
provisions of this Lease 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 demised premises as promptly, as reasonably possible, all of Tenant's
salvageable inventory and moveable equipment, furniture and other property.
Tenant's liability for rent shall resume five (5) days after written notice
from
Owner that the demised premises are substantially ready for Tenant's
occupancy.
(e) Nothing
contained hereinabove shall relieve Tenant from liability that may exist as
a
result of damage from fire or other casualty. Notwithstanding the foregoing,
each party shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage resulting from
fire or other casualty, and to the extent permitted by law, Owner and Tenant
each hereby releases and waives all right of recovery against the other or
any
one claiming through or under each of them by way of subrogation or otherwise.
The foregoing release and waiver shall be in force only if both releasors'
insurance policies contain a clause providing that such a release or waiver
shall not invalidate the insurance. If, and to the extent, that such waiver
can
be obtained only by the payment of additional premiums, then the party
benefiting from the waiver shall pay such premium within ten (10) days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
of this numbered Article with respect to waiver of subrogation. Tenant
acknowledges that Owner will not carry insurance on Tenant's furniture and/or
furnishings or any fixtures or equipment, improvements or appurtenances
removable by Tenant and agrees that Owner will not be obligated to repair any
damage thereto or to replace the same.
Lease
Page
6
(f) Tenant
hereby waives the provisions of Section 227 of the Real Property Law and agrees
that the provisions of this numbered Article shall govern and control in lieu
thereof.
Eminent
Domain:
10. If
the
whole or any part of the demised premises shall be acquired or condemned by
Eminent Domain for any public or quasi-public use or purpose, then and in that
event, the term of this Lease shall cease and terminate from the date of title
vesting in such proceeding and Tenant shall have no claim for the value of
any
unexpired term of this Lease and assigns to Owner Tenant's entire interest
in
any such award.
Assignment,
Mortgage, Etc.:
11. Tenant,
for itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall
not
assign, mortgage or encumber this Lease, nor underlet, or suffer or permit
the
demised premises or any part thereof to be used by others, without the prior
written consent of Owner in each instance,
which
consent shall not be unreasonably withheld or delayed.
Transfer of the majority of the stock of a corporate Tenant shall be deemed
an
assignment. If this Lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant and
the
expiration of the applicable cure period,
if any,
collect rent from the assignee, undertenant or occupant, and apply the net
amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of the provisions
of this numbered Article, or a release of Tenant from the further performance
by
Tenant of covenants on the part of Tenant herein contained. The consent by
Owner
to an assignment or underletting shall not in any way be construed to relieve
Tenant from obtaining the express consent in writing of Owner prior to any
further assignment or underletting. Notwithstanding anything to the contrary
above, Tenant may assign this Lease at any time, or sublease all or part of
the
property, without receipt of Owner’s consent, to any entity which acquires all
or part of Tenant, or which is acquired in whole or in part by Tenant, or which
is controlled directly or indirectly by Tenant, or which entity controls,
directly or indirectly, Tenant (“Affiliate”), or which owns or is owned by the
Affiliate, so long as such transaction was not entered into as a subterfuge
to
avoid the obligations and restrictions of this Lease. In any such case the
net
asset value of the assignee shall be greater on the day after such assignment
than that of Tenant on the day before such assignment and Tenant shall provide
Owner with written notice of any such assignment within ten (10) days of such
assignment.
Lease
Page
7
Electric
Current:
12. The
parties hereto agree that Tenant will have the right to use electricity on
a
rent inclusion basis for ordinary office equipment and lighting, subject to
adjustments in the event that there is an increase or decrease in the rate
schedule of the utility company serving the building of which the demised
premises are a part, or Tenant materially changes the consumption of current
within its space. In order that the personal safety and property of the tenants,
occupants and owner of the said premises may not be imperiled by the overtaxing
of the capacity of the existing electrical distribution system and in
consideration of like agreements by other tenants, Tenant agrees not to connect
any additional electrical equipment of any type without Owner's prior written
consent, nor to permit the consumption of electricity to overtax the capacity
of
the said system. Owner shall not be liable to Tenant for any loss, damage or
expense resulting from change in the quantity or character of the electric
service or its being no longer suitable for Tenant's requirements, or due to
cessation or interruption of the supply of current. Upon thirty (30) days prior
written notice to Tenant, Owner may discontinue service of electricity to Tenant
without affecting the tenancy or Tenant's liability hereunder and without
liability for loss or damage caused Tenant by such discontinuance; except that
in the event of the discontinuance of such service, Tenant shall be entitled
to
an appropriate rent adjustment. Owner, in that event, shall permit Tenant to
purchase electricity directly from the public utility servicing the area where
the building is located and permit Owner's electrical distribution system to
be
used for that purpose to the extent that it is available, suitable, and may
safely be so used. The amount of rent provided herein as shown on the cover
of
this lease that is to be deemed attributable to electricity is FOUR THOUSAND
TWO
HUNDRED EIGHTY-SIX AND 76/100 ($4,286.76) DOLLARS per annum, or THREE HUNDRED
FIFTY-SEVEN AND 23/100 DOLLARS ($357.23) per month.
Access
to Premises:
13. Owner
and
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 the demised premises or
to
any other portion of the Building or which Owner may elect to perform. Tenant
shall permit Owner to use and maintain and replace pipes and conduits therein
provided they are concealed within the walls, floor or ceiling. Owner may,
during the progress of any work in the demised premises without the same
constituting an eviction nor shall the Tenant be entitled to any abatement
of
rent while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof Owner shall
have the right to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the Building,
and
during the last six (6) months of the term hereof for the purpose of showing
the
demised premises to prospective tenants. 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 hereof Tenant shall have removed all or substantially all of
Tenant's property from the demised premises, Owner may immediately enter, alter,
renovate or redecorate the demised premises without limitation or abatement
of
rent, or reincurring liability to Tenant for any compensation and such act
shall
have no effect on this Lease or Tenant's obligations hereunder.
Lease
Page
8
Vault,
Vault Space, Area:
14. No
vaults, vault space or area, whether or not enclosed or covered, not within
the
property line of the Building is leased hereunder, anything contained in or
indicated on any sketch, blue print or plan, or anything contained elsewhere
in
this Lease to the contrary notwithstanding. Owner makes no representation as
to
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 diminution or abatement of
rent,
nor shall such revocation, diminution or requisition be deemed constructive
or
actual eviction. Any tax, fee or charge of municipal authorities for such vault
space or area shall be paid by Tenant.
Occupancy:
15. Tenant
will not at any time use or occupy the demised premises in violation of the
Certificate of Occupancy issued for the Building. Tenant has inspected the
demised premises and accepts them as is, subject to the riders annexed hereto
as
with respect to Owner's work, if any. In any event, Owner makes no
representation as to the condition of the demised premises and Tenant agrees
to
accept the same subject to violations, whether or not of record.
Bankruptcy:
16. (a) Anything
elsewhere in this Lease to the contrary notwithstanding, this Lease may be
canceled by Owner by the sending of a written notice to Tenant within a
reasonable time after the happening of any one or more of the following
events:
(i) the
commencement of a case in bankruptcy or under the laws of any state naming
Tenant as the debtor; or
(ii) 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
demised premises but shall forthwith quit and surrender the demised premises.
If
this Lease shall be assigned in accord with its terms, the provisions of this
numbered Article 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 paragraph (a) of this numbered Article, 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 rent reserved hereunder for the unexpired portion of
the
term hereof 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 ten (10%) percent per annum. If said demised premises
or any part thereof are relet by Owner for the unexpired term of said Lease,
or
any part thereof, before presentation of proof of such liquidated damages to
any
court, commission or tribunal, the 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 relet during the term of the reletting. Nothing herein
contained shall limit or prejudice the right of Owner to prove for or 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 is greater, equal to or less than the amount of the difference referred
to above.
Lease
Page
9
Default:
17. (a) If
Tenant
defaults in fulfilling any of the covenants in this Lease other than the
covenants for the payment of rent or additional rent; or if the demised premises
become vacant or deserted; 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 this Lease is rejected
under Section 365 of Title 11 of the U.S. Code (bankruptcy code); or if Tenant
shall fail to move into or take possession of the demised premises within
fifteen (15) days of the commencement of the term hereof, then, in any one
or
more of such events, upon Owner serving a written five (5) day notice upon
Tenant specifying the nature of said default and upon the expiration of said
five (5) days, if Tenant shall have failed to comply with or remedy such
default, or if the said default or omission complained of shall be of a nature
that the same cannot be completely cured or remedied within said five (5) day
period, and if Tenant shall not have diligently commenced curing said default
within said five (5) day period, and shall not thereafter with reasonable
diligence and in good faith, proceed to remedy or cure said 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
said three (3) day period were the day herein definitely fixed for the end
and
expiration of this Lease and the term hereof and Tenant shall then quit and
surrender the demised premises to Owner but Tenant shall remain liable as
hereinafter provided.
(b) If
the
notice provided for in paragraph (a) of this numbered Article shall have been
given, and the term shall expire as aforesaid; or if Tenant shall default in
the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and the legal representative of Tenant
or
other occupant of the demised premises and remove their effects and hold the
demised 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.
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Remedies
of Owner and Waiver of Redemption:
18. In
case
of any such default, re-entry, expiration and/or dispossess by summary
proceedings or otherwise;
(a) the
rent
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 otherwise would have constituted the balance of the
term
of this Lease and may grant concessions or free rent or charge a higher rental
value than that in this Lease; and/or
(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 by Tenant and the net amount, if any, of the rents collected on account
of the lease or leases of the demised premises for each month of the period
which otherwise would have constituted the balance of the term of this
Lease.
The
failure of Owner to re-let the demised premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In computing said
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
to 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, for
failure to collect the rent thereof under any such re-letting, and in no event
shall Tenant be entitled to receive any excess, if any, of such net rents
collected over the sums payable by Tenant to Owner hereunder. In the event
of a
breach or threatened breach by Tenant of any of the covenants or provisions
hereof, Owner shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if re-entry, summary proceedings and
other
remedies were not provided for herein. Mention in this Lease of any particular
remedy shall not preclude Owner from any other rights of redemption granted
by
or under any present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Owner obtaining possession of
the
demised premises, by reason of the violation by Tenant of any of the covenants
and conditions of this Lease, or otherwise.
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Fees
and Expenses:
19. If
Tenant
shall default in the observance or performance of any term or covenant on
Tenant's part to be performed under or by virtue of any of the terms or
provisions in any Article of 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
proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations 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 the making of such expenditures or
incurring of such obligations, such sums shall be recoverable by Owner as
damages.
Building
Alterations and Management:
20.
Owner
shall have the right at any time without the same constituting an eviction
and
without incurring liability to Tenant therefor to change the arrangement and/or
location of public entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or other public parts of the building and to change
the name, number or designation by which the building may be known. There shall
be no allowance to Tenant for diminution of rental value and no liability on
the
part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner or other tenants 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 such controls of
the
manner of access to the building by Tenant's social or business visitors as
Owner may deem necessary for the security of the building and its
occupants.
No
Representations by Owner:
21. (a) 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 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"
and acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that said demised premises and the Building 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.
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(b) Tenant
agrees to look solely to Owner's interest in the Property for the satisfaction
of any right or remedy of Tenant for the collection of a judgment (or other
judicial process) requiring the payment of money by Owner, its partners,
officers, shareholders or members, in the event of any liability by Owner,
and
no other property or assets of Owner, its partners, officers, shareholders
or
members shall be subject to levy, execution, attachment or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this Lease, the relationship of Owner, its partners, officers, shareholders
or
members and Tenant hereunder, or Tenant's use and occupancy of the demised
premises, or any other liability of Owner, its partners, officers, shareholders
or members to Tenant.
End
of Term:
22. Upon
the
expiration or other termination of the term of this Lease, Tenant shall quit
and
surrender to Owner the demised premises, broom clean, in good order and
condition, ordinary wear and damages which Tenant is not required to repair
as
provided elsewhere in this Lease excepted, and Tenant shall remove all its
property. 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 a Sunday, this Lease shall expire
at noon on the preceding Saturday unless it be a legal holiday in which case
it
shall expire at noon on the preceding business day.
Quiet
Enjoyment:
23. Owner
covenants and agrees with Tenant that upon Tenant paying the rent and additional
rent and observing and performing all the terms, covenants and conditions,
on
Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the premises hereby demised, subject, nevertheless, to the terms and
conditions of this Lease including, but not limited to Article "31" hereof
and
to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure
to Give Possession:
24. If
Owner
is unable to give possession of the demised premises on the date of the
commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not
been
sufficiently completed to make the demised premises ready for occupancy or
because of the fact that a Certificate of Occupancy has not been procured 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) until
after Owner shall have given Tenant written notice that the demised premises
are
substantially ready for Tenant's occupancy. If permission is given to Tenant
to
enter into possession of the demised premises or to occupy premises other than
the demised premises prior to the date specified as the commencement of the
term
of this Lease, Tenant covenants and agrees that such occupancy shall be deemed
to be under all the terms, covenants, conditions and provisions of this Lease,
except as to the covenant to pay rent. The provisions of this numbered Article
are intended to constitute "an express provision to the contrary" within the
meaning of Section 223(a) of the New York Real Property Law.
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No
Waiver:
25. The
failure of Owner to seek redress for violation of, or to insist upon the strict
performance of any covenant or condition of this Lease or of any of the Rules
or
Regulations, set forth or hereafter adopted by Owner, shall not prevent a
subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of
rent
with knowledge of the breach of any covenant of this Lease shall not be deemed
a
waiver of such breach and no provision of this Lease shall be deemed to have
been waived by Owner unless such waiver be in writing signed by Owner. No
payment by Tenant or receipt by Owner of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement of any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice
to
Owner's right to recover the balance of such rent or pursue any other remedy
in
this Lease provided. 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 the demised
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 demised premises prior to the expiration or
other termination of this Lease and the delivery of keys to any such agent
or
employee shall not act as a termination of this Lease or a surrender of the
demised premises.
Waiver
of Trial by Jury:
26. It
is
mutually agreed by and between Owner and Tenant that the respective parties
hereto shall and they hereby do waive trial by jury in any action, proceeding
or
counterclaim brought by either of the parties hereto against the other (except
for personal injury or property damage) on any matters whatsoever arising out
of
or in any way connected with this Lease, the relationship of Owner and Tenant,
Tenant's use of or occupancy of said demised premises, and any emergency
statutory or other statutory remedy. It is further mutually agreed that in
the
event Owner commences any summary proceeding for possession of the demised
premises, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding including a counterclaim under Article "4"
hereof.
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Inability
to Perform:
27. This
Lease and the obligation of Tenant to pay rent hereunder and perform all of
the
other covenants and agreements hereunder on the part of Tenant to be performed
shall in no way 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 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 governmental
agency or by reason of the conditions of supply and demand which have been
or
are affected by war or other emergency.
Bills
and Notices:
28. Except
as
otherwise in this Lease specifically provided, a notice or communication which
either party is required to give to the other shall be in writing by Certified
Mail, Return receipt Requested, addressed to the other at the address below
set
forth or to such other address as either party may be from time to time direct
by written notice given in the manner herein prescribed, and the time of mailing
such notice or communication shall be deemed to be the time when such notice
is
given:
To
Owner: CONSTITUTION
REALTY LLC
000
XXXXXXXXX XXXXXX
XXX
XXXX, XXX XXXX 00000-0000
To
Tenant: MMC
ENERGY NORTH AMERICA, LLC
00
XXXXXXXX
XXX
XXXX, XXX XXXX 00000
Services
Provided by Owner:
29. Owner
shall provide;
(a) necessary
elevator facilities on business days from 8:00 A.M. to 6:00 P.M. and on
Saturdays from 8:00 A.M. to 1:00 P.M. and have one (1) elevator subject to
call
at all other times;
(b) heat
to
the demised premises when and as required by law, on business days from 8:00
A.M. to 6:00 P.M.;
(c) water
for
ordinary lavatory purposes, but if Tenant uses or consumes water for any other
purpose or in unusual quantities (of which fact Owner shall be the sole judge),
Owner may install a water meter(s) at Tenant's expense which Tenant shall
thereafter maintain at Tenant's expense in good working order and repair to
register such water consumption and Tenant shall pay for water consumed as
shown
on said meter(s) as additional rent as and when bills are rendered;
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(d) cleaning
service for the demised premises on business days at Owner's expense provided
that said demised premises are kept in order by Tenant. If, however, said
demised premises are to be kept clean by Tenant, it shall be done at Tenant's
sole expense, in a manner satisfactory to Owner and no one other than persons
approved by Owner shall be permitted to enter said demised premises or the
Building for such purpose. Tenant shall pay Owner the cost of removal of any
of
Tenant's refuse and rubbish from the building:
(e) (i) Owner
at
its own expense shall, through the use of the Building's air conditioning
equipment, furnish and distribute in the demised premises cool air from May
1st
to October 31st of each year on business days from 8:30 A.M. to 5:30 P.M.
prevailing time. Tenant agrees to cause to be closed, and to keep closed, all
windows in the demised premises whenever the air conditioning system is in
operation and at all times to cooperate with Owner and to abide by all
reasonable regulations and requirements which Owner may prescribe for the proper
functioning and protection of the air conditioning equipment.
(ii) Owner
shall have free and unrestricted access to all air conditioning equipment.
Owner
reserves the right to interrupt, curtail, stop or suspend air conditioning
when
necessary because of accident, repairs, alterations or improvements which in
the
judgment of Owner are desirable or necessary, or to comply with government
restrictions in the use of materials or in the use of the air conditioning
system or because of difficulty or inability to secure supplies or labor because
of strikes or other cause or causes beyond the reasonable control of Owner,
whether such other cause or causes are similar or dissimilar to those
hereinbefore mentioned, and no diminution or abatement of rent or other
compensation shall or will be claimed by Tenant nor shall this Lease or any
of
the obligations of Tenant be affected or reduced by reasons of the
interruptions, curtailment, stoppage or suspension of air conditioning. If
Tenant requests air conditioning, by timely notice, on days or hours other
than
the regular days or hours as above provided, then Tenant shall pay Owner's
charges at the then current rate per hour for providing such additional air
conditioning upon being billed by Owner and such charges shall be collectible
as
"additional rent". Owner shall have the right to decline to furnish air
conditioning on hours or days other than the regular hours and days if, in
the
opinion of Owner, the furnishing of such service would be impractical or
detrimental to the operation of the building. Whenever in this numbered Article
the phrase "timely notice" is used, it shall be deemed to mean notice of at
least 24 hours prior to the time when additional air conditioning is desired
by
Tenant.
(f) Owner
reserves the right to stop services of the heating, elevators, plumbing, air
conditioning, power systems or cleaning or other services, if any, when
necessary by reason of accident or for repairs, alterations, replacements or
improvements necessary or desirable in the judgment of Owner for so long as
may
be reasonably required by reason thereof. If the Building supplies manually
operated elevator service, Owner at any time may substitute automatic control
elevator service and upon ten (10) days' written notice to Tenant, proceed
with
alterations necessary therefor without in any way affecting this Lease or the
obligations of Tenant hereunder. The same shall be done with a minimum of
inconvenience to Tenant and Owner shall pursue the alteration with due
diligence.
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Captions:
30. 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
provisions hereof.
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Definitions:
31. (a) The
term
"office" or "offices", wherever used in this Lease, shall not be construed
to
mean premises used as a store or stores, for the sale or display, at any time,
of goods, wares or merchandise, of any kind, or as a restaurant, shop, booth,
bootblack or other stand, xxxxxx shop, or for other similar purposes or for
manufacturing.
(b) The
term
"Owner" means a landlord or lessor, and as used in this Lease means only the
owner, 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),
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.
(c) Wherever
in this Lease the word Owner or the word Landlord appear, the reference shall
be
deemed to mean the party of the first part hereunder.
(d) The
words
"re-enter" and "re-entry" as used in this Lease are not restricted to their
technical legal meaning.
(e) The
term
"business days" as used in this Lease shall exclude Saturdays (except such
portion thereof as is covered by specific hours in Article "29" hereof), Sundays
and all days observed by the State or Federal Government as legal holidays
and
those designated as holidays by the applicable building service union employees
service contract or by the applicable Operating Engineers contract with respect
to HVAC service.
Adjacent
Excavation - Shoring:
32. If
an
excavation shall be made upon land adjacent to the Building, or shall be
authorized to be made, Tenant shall afford to the person causing or authorized
to cause such excavation, license to enter upon the demised premises for the
purpose of doing such work as said person shall deem necessary to preserve
the
wall or the Building from injury or damage and to support the same by proper
foundations without any claim for damages or indemnity against Owner, or
diminution or abatement of rent.
Rules
and Regulations:
33. Tenant
and Tenant's servants, employees, agents, visitors and licensees shall observe
faithfully and comply strictly with the Rules and Regulations 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.
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Security:
34. (a) Tenant
has deposited with Owner the sum of $9,645.21
as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease. It is agreed that in the event Tenant
defaults in respect of any of the terms, provisions or conditions of this Lease
including, but not limited to, the payment of rent and additional rent, Owner
may use, apply or retain the whole or any part of the security so deposited
to
the extent required for the payment of any rent and additional rent or any
other
sum as to which Tenant is in default or for any sum which Owner may expend
or
may be required to expend by reason of Tenant's default in respect of any of
the
terms, covenants or conditions of this Lease, including but not limited to,
any
damages or deficiency in the re-letting of the demised premises, whether such
damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all the terms, provisions, covenants and conditions of this Lease, the
security shall be returned to Tenant after the date fixed as the end of the
Lease and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and Building or leasing of the Building
Owner
shall have the right to transfer the security to the vendee or lessee and Owner
shall thereupon be released by Tenant from all liability for the return of
said
security and Tenant agrees to look to the new Owner solely for the return of
said security and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Owner. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited hereunder as security and that neither Owner nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
(b) Supplementing
the provisions of paragraph (a) of this numbered Article, Owner agrees to hold
the security deposited by Tenant hereunder in an interest bearing account.
Owner
shall be entitled to a part of any of the interest earned as and for a service
fee. The amount of said service fee shall be limited to the rate permitted
which
is presently one (1%) percent. The balance of any interest earned shall be
retained in the account and be paid over to Tenant at such time when, as and
if
the original amount of security is to be returned to Tenant.
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Estoppel
Certificate:
35. Tenant,
at any time, and from time to time, upon at least ten (10) days' prior written
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to
any
other person, firm or corporation specified by Owner, a statement certifying
that this lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and
stating the modification), stating the dates to which the rent and additional
rent have been paid and stating whether or not there exists any default by
Owner
under this Lease, and, if so, specifying each such default.
Successors
and Assigns:
36. 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.
Late
Charge:
37. Without
prejudice to any of the other rights or remedies available to Owner by the
terms
of this Lease or by operation of law, Tenant agrees that if any installment
of
rent is not paid within ten (10) days after the date on which it is due, an
additional charge of ONE HUNDRED ($100.00) DOLLARS shall become due and payable
to Owner as and for a "late charge" and Tenant agrees to pay such charge as
additional rent hereunder.
Real
Estate Tax Escalation:
38. (a) In
the
event that the amount of real estate taxes, assessments, sewer rents, rates
and
charges, county taxes, transit taxes, or any other governmental charge, general,
special, ordinary or extraordinary, foreseen or unforeseen (hereinafter
collectively called taxes) which may now or hereafter be levied or assessed
against the land upon which the Building stands and upon the Building
(hereinafter collectively called the real property) attributable to any tax
year
(July 1 to June 30) shall be greater than the amount of taxes on the real
property attributable to the tax year 2005/06 (hereinafter referred to as the
base year) during the term hereof, then Tenant shall pay Owner as additional
rent TWO TENTHS OF ONE PER CENTUM (0.2%) of the increase in taxes for such
tax
year.
(b) Owner
may
take the benefit of the provisions of any statute or ordinance permitting any
assessment to be paid over a period of time and the installments of any such
assessment as shall become due and payable during any years of the term of
this
Lease or any renewal hereof shall be included in the calculation of Tenant's
share of the tax increase provided. Any amount due Owner under the provisions
of
this numbered Article shall be paid within thirty (30) days after Owner shall
have submitted a xxxx and statement to Tenant showing in reasonable detail
the
computation of the amount due Owner, but such xxxx shall not be payable prior
to
the payment by Owner of the installment upon which Owner's xxxx to Tenant is
based. Any such tax increase for the tax year in which this Lease shall end
shall be apportioned so that Tenant shall pay its aforesaid share of only that
portion thereof which corresponds with the portion of said tax year which is
within the term hereby demised. The amount of taxes for the base year, against
which Tenant's liability for additional rent in subsequent years is determined,
shall be the amount thereof finally determined to be legally payable by legal
proceedings or otherwise.
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(c) If
Owner
shall receive any tax refund in respect of any tax year following the base
year
with respect to which Tenant shall have paid any moneys pursuant to subdivision
"(a)" of this numbered Article, Owner may retain out of such tax refund any
reasonable expense incurred by it in obtaining such refund and out of any of
the
then remaining balance of such tax refund, Owner shall pay to Tenant, provided
Tenant is not in default under the covenants or provisions of this Lease, the
percentage specified in subdivision "(a)" of this numbered Article of such
remaining balance of such tax refund.
Xxxxxx'x
Wage Escalation:
39. (a) At
any
time and each time during the term of this Lease that the minimum regular hourly
wage rate, hereinafter referred to as the RAB Labor Rate, prescribed for Porters
in office buildings such as the one of which the demised premises forms a part,
shall be increased by agreement between the Realty Advisory Board on Labor
Relations, Incorporated (or its successor), hereinafter referred to as the
RAB,
and Local 32B-J of the Building Service Employees International Union, AFL-CIO,
(or its successor), hereinafter referred to as the "Union", above the minimum
regular hourly wage rate for such employees in effect as of the date hereof,
Tenant shall pay to Owner as additional annual rent hereunder an amount equal
to
the result of the multiplying of the hourly wage increase in terms of cents
by
1,319. Said additional rent is to be paid in equal monthly installments of
1/12
the annual rate starting with and along with the next monthly installment of
rent due after the effective date of such increase and shall continue to be
paid
along with each monthly installment of rent due until another such increase,
if
any, shall become effective in accord with the provisions hereof. Owner shall
give Tenant written notice of each change in the RAB Labor Rate which will
effectively change Tenant's obligation for the payment of additional rent and
the amount of such additional rent pursuant to the provisions of this Article.
If said notice is given to Tenant after the date upon which such a change in
the
RAB Labor Rate shall have become effective (whether prospectively or
retroactively), then Tenant shall within ten (10) days after the notice, pay
to
Owner such additional rent for any period which shall have elapsed prior to
the
giving of said notice. Any additional rent due pursuant to the provisions of
this numbered Article shall be collectible by Owner in the same manner as the
regular installments of rent due under this Lease. The obligations to make
any
payments pursuant to this numbered Article shall survive the expiration or
other
termination of this Lease.
(b) Any
and
all the benefits required by law or by the applicable union agreement to be
paid
to or for Porters or imposed upon or measured by their wages, such as paid
vacations and holidays, hospital, disability, medical, welfare, pension and
retirement payments and Social Security, payroll and other taxes, shall be
apportioned as an average hourly wage rate and shall be included as part of
the
RAB Labor Rate.
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21
(c) In
the
event the regular working time of Porters in the building of which the demised
premises forms a part shall occur on days or during hours when overtime or
other
premium pay rates are in effect pursuant to the RAB-Union agreement, then the
RAB Labor Rate as used in this numbered Article shall mean the average hourly
wage rate for the hours in a calendar week during which Porters are regularly
employed. (e.g., if, pursuant to the RAB-Union agreement the regular employment
of Porters for forty hours during a calendar week is at the hourly wage rate
of
$7.00 for the first thirty hours and at $10.50 for the remaining 10 hours,
then
the RAB Labor Rate under this numbered Article shall be the total weekly wage
rate of $315.00 divided by 40, or $7.875).
(d) If
Owner
has negotiated a separate agreement with the Union apart from the RAB or has
become part of an industry group other than the RAB that has negotiated an
agreement with the Union covering the Employees formerly covered by the RAB
Labor Rate, then the minimum regular hourly wage rate prescribed for Porters
in
any such new agreement made apart from the RAB shall be considered to be the
new
RAB labor rate for the purposes of this Article.
(e) "Porters"
as used herein shall mean that classification of employee engaged in the general
maintenance and operation of Office Buildings which is the same or most nearly
comparable to that classification now applicable to Porters in the current
RAB-Union agreement. (Under the present agreement such classification is termed
"Others".)
(f) No
payments of additional rent shall accrue or become due pursuant to this numbered
Article before January 1, 2007.
40. INTENTIONALLY
OMITTED.
Brokerage:
41. Tenant
warrants to Owner that the only brokers with whom it dealt concerning this
Lease
and the Demised Premises were New York Commercial Realty Services, through
Zara
Xxxxx, and Xxxxxxx Companies LLC. Owner agrees to pay leasing commissions to
said brokers pursuant to separate agreements between Owner and said
brokers.
Relocation-Termination:
42. It
is
expressly understood and agreed that Owner, at Owner's sole cost and expense,
shall have the right to relocate Tenant from the demised premises to comparable
or better space within the Building in the event that Owner requires the demised
premises as part of a larger lease transaction. Any such relocation shall not
unreasonably upset or disturb the normal conduct of Tenant's business and the
lay-out of the new space shall provide work area(s) that are similar to those
then in the demised premises. In the event that Tenant does not accept the
relocation space offered by Owner, Owner may at Owner's sole option terminate
this Lease by giving ninety (90) days written notice to Tenant.
Lease
Page
00
Xxxxx
Xxxxxxxxx Real Property Tax Abatement:
43. It
is
understood by Owner and Tenant that:
(a) (i) an
application for abatement of real property taxes will be made for the demised
premises;
(ii) the
rent
including amounts payable by Tenant for real property taxes will accurately
reflect any abatement of real property taxes;
(iii) at
least
$10.00 per square foot or $35.00 per square foot in the Title 4 abatement zone,
or at least $5.00 per square foot or $25.00 per square foot in the Title 4A
abatement zone must be spent on improvements to the demised premises and/or
the
common areas, the amount being dependent upon the length of the lease and
whether it is a new, renewal or expansion lease;
(iv) all
abatements granted will be revoked if, during the benefit period, real estate
taxes, water or sewage charges or other lienable charges are unpaid for more
than one (1) year, unless such delinquent amounts are paid as provided in the
relevant law.
(b) The
lease
for the eligible premises does not provide for an option to terminate the
lease prior
to
the initial lease term except as provided for in the applicable
law.
Lower
Manhattan Energy Program:
44. Owner
and
Tenant acknowledge that Owner may be applying for benefits available pursuant
to
the Lower Manhattan Energy Program (LMEP). In the event that the Building is
eligible the LMEP benefits will be passed on to Tenant as specified by the
law.
Landmark
Status:
45. Pursuant
to Local Law 92 of the City of New York, which was signed into law on December
13,1996, the notice required thereby that the facade of the Building of which
the demised premises form a part has been given landmark designation by the
Landmarks Preservation Commission of the City of New York. In accord with said
local law, Owner hereby gives Tenant further notice that in accord with the
administrative code, Tenant must obtain a permit from the Landmarks Preservation
Commission prior to commencing any exterior or interior work on the improvement
or the property, except for ordinary repair and maintenance as defined in the
code. Any lease or sublease commencing on or after December 13, 1996 must
contain the language contained in this numbered Article.
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23
Smoking:
46. Tenant
represents to Owner that Tenant is fully knowledgeable regarding the
"No-Smoking" laws for commercial office buildings promulgated by the City of
New
York. Tenant throughout the term of this Lease shall comply with all laws
regarding smoking in office buildings and prevent its employees and invitees
from smoking anywhere within the public areas inside the Building or the demised
premises (including but not limited to bathrooms, fire stairs etc…) except
within a smoking room within the demised premises that complies with any and
all
City, State or Federal laws and regulations regarding smoking rooms and Tenant
shall use its best efforts to prevent its employees who smoke, if any, to stand
in or near the interior or exterior sides of the Building
entrances/exits.
Insurance:
47. Tenant
covenants to provide, on or before the commencement date of the term hereof,
and
keep in force during the term of this Lease for the benefit of the Owner, a
comprehensive Liability policy of insurance covering the demised premises and
any appurtenances thereto. Such policy is to be written by a good and solvent
insurance company authorized to do business in the State of New York in a
minimum amount of One Million ($1,000,000.00) Dollars Combined Single Limit
Coverage on a per occurrence basis covering both personal liability and property
damage.
48. In
the
event of a monetary default or other material default which continues beyond
any
applicable notice and or cure period, Xxxx Xxxxxx of 000 Xxxxxxx Xxxxx Xxxxx
Xxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000; SSN ###-##-####, covenants and agrees
to
be liable for both the payment of all amounts of rent and any additional rent
that accrue and remain unpaid from the time of the original uncured monetary
or
other material default through the last day of the month in which Tenant vacates
the demised premises and delivers possession of same to Owner (in accord with
the terms hereof) and for the performance of the terms and conditions hereunder
through the last day of the month in which Tenant vacates the demised premises
and delivers possession of same to Owner (in accord with the terms hereof).
The
provisions of this numbered Article shall survive the termination of this Lease,
unless the named individual has made all payments required to be made up to
the
vacating and delivery of possession of the demised premises or performed the
obligation(s) to be performed prior to said vacating and delivery of possession
of the demised premises, and said provisions shall not be effected in any manner
by the provisions contained in Article "34" hereof. The security described
in
said Article "34" shall not be used or considered as a set-off against any
amounts due under this numbered Article. During the term hereof, the
aforementioned individual shall notify Owner within thirty (30) days of any
change in his/her address as shown above. Failure to give the requisite notice
of an address change shall be deemed a material event of default hereunder.
The
Social Security Number provided herein only shall be used by Owner in connection
with the enforcement of Owner’s rights pursuant to the provisions of this
numbered Article. Other than as used by Owner pursuant to the provisions of
this
numbered Article Owner shall not disclose the Social Security Number unless
pursuant to governmental or court order and in any such case shall give the
party responsible pursuant to this numbered Article notice of any governmental
request or court order prior to any disclosure.
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24
In
Witness Whereof,
Owner
and Tenant have respectively signed and sealed this Lease as of the day and
year
first above written.
|
CONSTITUTION
REALTY LLC
Owner
|
||
| |
|
|
| BY: | /s/ Xxxxx X. Xxxxxxx | |
|
Xxxxx X. Xxxxxxx, Manager-Member |
||
|
MMC
ENERGY NORTH AMERICA, LLC
Tenant |
||
| |
|
|
| BY: | /s/ Xxxx Xxxxxx | |
|
Xxxx Xxxxxx, Managing Partner |
||
| As to the provisions of Article “48” only: | ||
| |
|
|
| X: | /s/ Xxxx Xxxxxx | |
|
Xxxx Xxxxxx |
||
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25
ACKNOWLEDGMENTS
Owner
XXXXX
XX XXX XXXX,
XXXXXX
XX XXX XXXX
Xx
the
________ day
of
January in the year 2006 before me, the undersigned, a Notary Public in and
of
said State, personally appeared Xxxxx X. Xxxxxxx, personally known to me
or
proved to me on the basis of satisfactory evidence to be the individual(s)
whose
name(s) is (are) subscribed to the within instrument and acknowledged to
me that
he/she/they executed the same in his/her/their capacity (ies), and that by
his/her/their signature (s) on the instrument, the individual (s), or the
person
upon behalf of which the individual (s) acted, executed the
instrument.
| |
|
|
|
Notary Public |
||
Tenant
STATE
OF NORTH CAROLINA,
COUNTY
OF
On
the
________ day
of
January in the year 2006 before me, the undersigned, a Notary Public in and
of
said State, personally appeared Xxxx
Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence
to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity (ies), and that by his/her/their signature (s) on the instrument,
the
individual (s), or the person upon behalf of which the individual (s) acted,
executed the instrument.
| |
|
|
|
Notary Public |
||
Lease
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26
As
to the provisions of Article “48” only:
STATE
OF NORTH CAROLINA,
COUNTY
OF
On
the________ day
of
January in the year 2006 before me, the undersigned, a Notary Public in and
of
said State, personally appeared Xxxx
Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence
to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity (ies), and that by his/her/their signature (s) on the instrument,
the
individual (s), or the person upon behalf of which the individual (s) acted,
executed the instrument.
| |
|
|
|
Notary Public |
||
Lease
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27
IMPORTANT
- PLEASE READ
RULES
AND REGULATIONS ATTACHED TO AND FORMING A PART OF THIS LEASE IN
ACCORD WITH
ARTICLE "33" HEREOF.
1. The
sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls of the building 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 side guards. If said premises are situated on the ground floor
of the Building, Tenant thereof shall further, at Tenant's expense, keep the
sidewalk and curb in front of said premises clean and free from ice, snow,
dirt
and rubbish.
2. The
water
and wash closets and plumbing fixtures shall not be used for any purposes other
than those for which they were designed or constructed and no sweepings,
rubbish, rags, acids or other substances shall be deposited therein, and the
expense of any breakage, stoppage, or damage resulting from the violation of
this rule shall be borne by the Tenant who, or whose clerks, agents, employees
or visitors, shall have caused it.
3. No
carpet, rug or other article shall be hung or shaken out of any window of the
Building; and no tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the Building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the Building 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 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 demised premises without the prior written consent
of
Owner, except that the name of Tenant may appear on the entrance door of the
demised premises. In the event of the violation of any of the foregoing by
any
tenant, Owner may remove same without any liability, and may charge the expense
incurred by such removal to the tenant or tenants violating this rule. Interior
signs on doors and directory tablet shall be inscribed, painted or affixed
for
each tenant by Owner at the expense of such tenant, and shall be of a size,
color and style acceptable to Owner.
6. No
tenant
shall xxxx, paint, drill into, or in any way deface any part of the demised
premises or the Building. No boring, cutting or stringing of wires shall be
permitted, except with the prior written consent of Owner, and as Owner may
direct. No tenant shall lay linoleum, or other similar floor covering, so that
the same shall come in direct contact with the floor of the demised premises,
and, if linoleum or other similar floor covering is desired to be used an
interlining of builder's deadening felt shall be first affixed to the floor,
by
a paste or other material, soluble in water, the use of cement or other similar
adhesive material being expressly prohibited.
7. 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 its 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.
Lease
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28
8. Freight,
furniture, business equipment, merchandise and bulky matter of any description
shall be delivered to and removed from the demised premises only on the freight
elevators and through the service entrances and corridors, and only during
hours
and in a manner approved by Owner. Owner reserves the right to inspect all
freight to be brought into or out of the Building and to exclude from the
Building all freight which violates any of these Rules and Regulations or the
Lease of which these Rules and Regulations are a part.
9. Canvassing,
soliciting and peddling in the Building is prohibited and each Tenant shall
cooperate to prevent the same.
10. Owner
reserves the right to exclude from the Building between the hours of 6:00 P.M.
and 8:00 A.M. and at all hours on Sundays, and legal holidays all persons who
do
not present a pass to the Building signed by Owner. Owner will furnish passes
to
persons for whom any tenant requests same in writing. Each tenant shall be
responsible for all persons for whom it requests such pass and shall be liable
to Owner for all acts of such persons.
11. Owner
shall have the right to prohibit any advertising by any tenant which in Owner's
opinion, tends to impair the reputation of the Building or its desirability
as a
building for offices, and upon written notice from Owner, Tenant shall refrain
from or discontinue such advertising.
12. Tenant
shall not bring or permit to be brought or kept in or on the demised premises
any inflammable, combustible or explosive fluid, material, chemical or
substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the demised
premises.
13. If
the
Building contains central air conditioning and ventilation, Tenant agrees to
keep all windows closed at all times and to abide by all rules and regulations
issued by Owner with respect to such services. If Tenant requires air
conditioning or ventilation after the usual hours, Tenant shall give notice
in
writing to the Building superintendent prior to 3:00 P.M. in the case of
services required on weekdays, and prior to 3:00 P.M. on the business day prior
in the case of after hours service required on weekends or on
holidays.
14. Tenant
or
Tenant's agent(s) shall not move any safe, heavy machinery, heavy equipment,
bulky matter, or fixtures into or out of the Building without Owner's prior
written consent. If such safe, machinery, equipment, bulky matter or fixtures
requires special handling, all work in connection therewith shall comply with
the Administrative Code of the City of New York and all other laws and
regulations applicable thereto and shall be done during such hours as Owner
may
designate.
Lease
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29
EXHIBIT
“A”
Owner
and
Tenant hereby agree as follows:
1. Owner
shall perform all of the following work (collectively, the “Owner’s Work”) at
Owner’s sole cost and expense. Owner's Work shall be:
a)
Installation of carpet throughout the Demised Premises in Tenant’s choice of
color and style to be chosen from samples provided by Owner. The allowance
for
carpet shall be $20.00 per square yard. Any upgrades in the carpet shall be
at
Tenant’s sole cost and expense.
b) Patching,
preparation and painting of walls, doors, trim and using Xxxxxxxx Xxxxx or
similar quality paint in Tenant’s choice of building standard color to be chosen
from samples provided by Owner.
c) Removal
of extraneous cabling/wiring and stove from the Demised Premises.
d) Demolition
of wall.
Lease
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30
