50 ENGINEERS ROAD H LLC,
Landlord
and
HIRSCH INTERNATIONAL CORP.
Tenant
LEASE
Suffolk County, New York
TABLE OF CONTENTS
Article
1 - Demise and Rent and Definitions
2 - Use
3 - Condition of Premises
4 - Tax Payments
5 - Operating Expense Payments
6 - Subordination, Notice to Superior
- Lessors and Superior Mortgagees
7 - Quiet Enjoyment
8 - Assignment, Subletting and Mortgaging
9 - Compliance With Legal and Insurance Requirements
10 - Insurance
11 - Rules and Regulations
12 - Alterations
13 - Landlord's and Tenant's Property
14 - Repairs and Maintenance
15 - Electric Energy
16 - Heat, Ventilation and Air-Conditioning
17 - Other Services; Service Interruption
18 - Access and Name of Project
19 - Notice of Occurrences
20 - Non-Liability and Indemnification
21 - Damage or Destruction
22 - Eminent Domain
23 - Surrender and Holding Over
24 - Default
25 - Re-entry by Landlord
26 - Damages
27 - Affirmative Waivers
28 - No Waivers
29 - Curing Tenant's Defaults
30 - Broker
31 - Notices
32 - Estoppel Certificates
33 - Execution and Delivery of Lease
34 - Recording of Lease
35 - Parking
36 - Environmental Compliance
37 - Signs
38 - Approval Contingency
39 - Relocation of Premises
40 - Partnership or Multi-Person Tenant
41 - Security Deposit
42 - Miscellaneous
EXHIBITS
Exhibit A - Plan of Premises
Exhibit B - Schedule of Fixed Rent
Exhibit C - Description of Landlord's Work
Exhibit D - Form of SNDA
Exhibit E - Rules and Regulations
Exhibit F - Parking Area Exhibit G - Option to Renew
LEASE, dated as of _, 2006 between 50 ENGINEERS ROAD H, LLC, a New York
limited liability company having an office at Suite 100, 45 Research Way, East
Setauket, New York 17733 (herein called "Landlord") and HIRSCH INTERNATIONAL
CORP., INC., a corporation having an office at , ,
New York (herein called Tenant").
WITNESSETH:
ARTICLE 1 - Demise and Rent and Definitions
1.01. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises (as defined in Section 1.02) in the building known as 50
Engineers Road (herein called the "Building") on Landlord's land (herein called
"Land") located at 50 Engineers Road, in Hauppauge, in the Town of Smithtown, in
the County of Suffolk and State of New York and called "50 Engineers Road." The
Land and all of the buildings and other improvements presently and hereafter
located thereon are herein collectively called the "Project." The buildings and
other improvements presently and hereafter located on the Land are herein
collectively called the "Improvements."
1.02. The premises (herein called the "Premises") leased to Tenant consist
of approximately 14,967 rentable square feet (of which no more than 8,038
rentable square feet shall be office space, and the balance warehouse space),
and are shown on Exhibit A. Tenant shall have, as appurtenant to the Premises,
the non-exclusive right to use in common with others, subject to the terms and
conditions of this Lease, including the Rules and Regulations (as hereinafter
defined): (a) the common lobbies, corridors, stairways and elevators of the
Building, if any, and the parking areas (except those marked for use by a
particular tenant) and (b) if the Premises includes less than the rentable floor
area of any floor, the common toilets, corridors and lobby, if any, of such
floor.
1.03. The term of this Lease (herein called the "Term") shall commence on
the Commencement Date and shall end at 11:59 p.m. on the last day of the month
in which the fifth year annual anniversary of the Commencement Date occurs or on
such earlier date upon which the Term shall expire or be canceled or terminated
pursuant to any of the conditions or covenants of this Lease or pursuant to law,
or as extended pursuant to the Renewal Option granted Tenant in Exhibit G
attached hereto and made a part hereof. The targeted Commencement Date is 120
days from the date of execution of the lease. If for any reason the Commencement
Date shall be other than a specific date set forth in the definition thereof,
then, promptly following the Commencement Date the parties hereto shall enter
into an agreement in form and substance satisfactory to Landlord and Tenant
setting forth the Commencement Date. If this Lease contains any renewal option
or options, then upon the valid exercise of any renewal option, the word "Term"
shall be deemed to include the renewal period for which said option or options
was or were exercised.
1.04. The rents shall be and consist of (a) fixed rent (herein called the
"Fixed Rent") at the rate of $164,637.00 per annum which shall be payable in
equal monthly installments of $13,719.75 each, in advance on the first day of
each and every calendar month during the Term, commencing on the fifth monthly
anniversary of the Commencement Date, except that the first month's rent shall
be paid upon the execution of this Lease by Tenant, and (b) additional charges
(herein called the "Additional Charges") consisting of all other sums of money
as shall become due from and payable by Tenant to Landlord hereunder. All the
Fixed Rent and Additional Charges shall be paid in lawful money of the United
States to Landlord at its office, Suite 100, 45 Research Way, East Setauket, New
York 17733, or such other place, or to Landlord's agent and at such other place,
as Landlord shall designate by notice to Tenant. The Fixed Rent shall increase,
on a cumulative basis, by three and one half (3.50%) percent on each annual
anniversary of the Commencement Date. A Schedule of Fixed Rent is attached
hereto as Exhibit "B".
1.05. Tenant shall pay the Fixed Rent and Additional Charges promptly when
due without notice or demand therefor and without any abatement, deduction or
setoff for any reason whatsoever, except as may be expressly provided for in
this Lease or by law. If the Commencement Date occurs on a day other than the
first day of a calendar month, the Fixed Rent for the partial calendar month at
the commencement of the Term shall be prorated.
1.06. No payment by Tenant or receipt or acceptance by Landlord of a lesser
amount than the correct Fixed Rent or Additional Charges shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance or pursue any other remedy in this Lease
or provided at law.
1.07. Tenant shall pay the Fixed Rent and Additional Charges as above and
as herein provided, by good and sufficient check (subject to collection) drawn
on a New York City bank which is a member of the New York Clearing House or a
successor thereto, or by wire as provided above in Section 1.04.
1.08. If Tenant fails to make any payment of Fixed Rent or Additional
Charges on or before the due date thereof, Tenant shall pay to Landlord a late
charge of 5% of the amount of such payment and, in addition, commencing thirty
(30) days from the due date, such unpaid amount shall bear interest at a rate
(herein called the "Lease Interest Rate") equal to the lesser of (a) the rate
announced by Citibank, N.A. or its successor from time to time as its prime or
base rate, plus 4%, or (b) the maximum applicable legal rate, if any, from the
date such amount became due and payable to the date of payment thereof by
Tenant. Such late charge and interest shall be due and payable on demand.
1.09. If any of the Fixed Rent or Additional Charges shall be or become
uncollectible, reduced or required to be refunded because of any Legal
Requirements (as defined in Section l.l0(i)), Tenant shall enter into such
agreement(s) and take such other steps (without additional expense to Tenant) as
Landlord may request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of such
legal rent restriction may be legally permissible (and not in excess of the
amounts reserved therefor under this Lease). Upon the termination of such legal
rent restriction, (a) the rent shall become and thereafter be payable in
accordance with the amounts reserved herein for the periods following such
termination and (b) Tenant shall pay to Landlord, to the maximum extent legally
permissible, an amount equal to (i) the rent which would have been paid pursuant
to this Lease but for such legal rent restriction, less (ii) the rent actually
paid by Tenant during the period such legal rent restriction was in effect.
1.10. The following terms, whenever used in this Lease, shall have the
meanings:
(a) The term "and/or" when applied to two or more matters or things shall
be construed to apply to any one or more or all thereof as the circumstances
warrant at the time in question.
(b) The term "Business Days" shall mean all days except Saturdays, Sundays
and days observed by the Federal or New York State governments as legal
holidays.
(c) The term "Business Hours" shall mean 8:00 a.m. to 6:00 p.m. on a
Business Day
(d) The term "Commencement Date" shall be the date that the shell Building
and the work, if any, to be performed by Landlord for Tenant prior to the
commencement of this Lease is substantially completed (meaning when the work, if
any, has been completed to the extent that it may used for its intended purpose,
with the exception of punch list or other similar type work). If Tenant shall be
permitted to have access to the Premises, or any portion thereof prior to the
Commencement Date, all provisions of this Lease shall apply, other than the
payment of Fixed Rent and Additional Charges.
(e) The terms "herein" and "hereunder," and words of similar import, shall
be construed to refer to this Lease as a whole, and not to any particular
Article or Section, unless expressly so stated.
(f) The term "Insurance Requirements" shall mean the rules, regulations,
orders and requirements of the New York Board of Underwriters and/or the New
York Fire Insurance Rating Organization and/or any other similar body performing
the same or similar functions and having jurisdiction or cognizance over the
Building and/or the Premises, whether now or hereafter in force, and the
requirements of any insurance policy maintained by Landlord.
(g) The term "Landlord" shall mean only the owner at the time in question
of the Building or of a lease of the Building, so that in the event of any
transfer or transfers of title to the Building or of Landlord's interest in a
lease of the Building, to the extent such obligations are assumed by the
transferee from and after the date of each such transfer, the transferor shall
be and hereby is relieved and freed of all obligations of Landlord under this
Lease accruing after such transfer, and it shall be deemed, without further
agreement that such transferee has assumed and agreed to perform and observe all
obligations of Landlord herein during the period it is the holder of Landlord's
interest under this Lease.
(i) The term "Lease Year" shall mean the 12-month period beginning with the
calendar year in which the Commencement Date occurs and the 12 month period
commencing on any annual anniversary of the month in which the Commencement Date
occurs.
(j) The term "Legal Requirements" shall mean laws and ordinances of any or
all of the federal, state, city, town, county, borough and village governments
and rules, regulations, orders and directives of any and all departments,
subdivisions, bureaus, agencies or offices thereof, and of any other
governmental, public or quasi-public authorities having jurisdiction over the
Building and/or the Premises, and the direction of any public officer pursuant
to law, whether now or hereafter in force.
(k) The term "person" shall mean any natural person or persons, a
partnership, a limited liability company, a corporation, and any other form of
business or legal association or entity.
(l) The term "Tenant" shall mean the Tenant herein named or any assignee or
other successor in interest (immediate or remote) of the Tenant herein named,
which at the time in question is the owner of the Tenant's estate and interest
granted by this Lease; but the foregoing provisions of this subsection shall not
be construed to permit any assignment of this Lease or to relieve the Tenant
herein named or any assignee or other successor in interest (whether immediate
or remote) of the Tenant herein named from the full and prompt payment,
performance and observance of the covenants, obligations and conditions to be
paid, performed and observed by Tenant under this Lease.
ARTICLE 2 - Use
2.01. Tenant shall use and occupy the Premises for general office space
(not more than 8,038 rentable square feet) and the balance as warehouse space.
2.02. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business in the Premises or any part
thereof (other than the certificate of occupancy for the Premises if any,
required for Tenant's original occupancy, and Landlord is to perform the work
required to obtain such certificate or for the Building), Tenant, at its
expense, shall duly procure and thereafter maintain such license or permit and
submit the same to Landlord for inspection. Tenant shall at all times comply
with the terms and conditions of each such license or permit. Tenant shall not
at any time use or occupy, or suffer or permit anyone to use or occupy, the
Premises, or any part thereof, in any manner (a) which violates the certificate
of occupancy for the Premises or for the Building or any other permit or license
issued pursuant to any Legal Requirements; (b) which causes or is liable to
cause injury to the Building or any equipment, facilities or systems therein;
(c) which constitutes a violation of the Legal Requirements or Insurance
Requirements; (d) which impairs or tends to impair the character, reputation or
appearance of the Building as a first class office building; (e) which impairs
or tends to impair the proper and economic maintenance, operation and repair of
the Building and/or its equipment, facilities or systems; or (f) which annoys or
inconveniences or tends to annoy or inconvenience other tenants or occupants of
the Project. Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Premises, or any part thereof, for the production
or disposal of any toxic chemicals.
ARTICLE 3 - Condition of Premises
3.01. Except as otherwise expressly provided for in this Lease, Tenant is
leasing the Premises "as is" on the date hereof, except for reasonable wear and
tear; and the taking of possession by Tenant of the Premises shall be conclusive
evidence as against Tenant that the Premises and the Building were in good and
satisfactory condition at the time such possession was taken.
3.02. Upon the parties agreeing upon the floor plan for Tenant's
improvements for the space and construction drawings and specifications are
complete, and approved by both parties, Landlord shall contract with TRITEC
Building Company, Inc. (TBC) to act as construction manager for Landlord's Work
(the work required by the construction drawings plus the erection of demising
walls, updating the landscaping and striping the spaces in the parking lot).
Landlord's Work will be divided into two categories, Landlord's Work At
Landlord's Expense and Landlord's Work At Tenant's Expense. The description of
Landlord's Work is attached hereto, along with a copy of the approved floor plan
as Exhibit "C". TBC will invite bids on Landlord's Work At Tenant's Expenses and
covered by such construction drawings. If requested by Tenant, specific
subcontractors will be invited to bid. Once the bids are received, Landlord
shall submit a price to Tenant. This total shall be referred to as the "Cost of
the Work At Tenant's Expense". All architectural and engineering services,
permits, filing fees and other documents and approvals necessary or appropriate
to construct Landlord's Work shall be secured by Landlord, with the assistance
of Tenant where necessary. Tenant shall be granted an allowance of up to Two
Hundred Seventy Thousand Dollars ($270,000.00) (Approximately $18.00 per
rentable square foot) for the cost of Landlord's Work At Tenant's Expense,
including all permits, filing fees and preparation of all Construction Drawings
("Landlord's Allowance"). If the Cost of the Work exceeds the Landlord's
Allowance then progress payments will be made based on monthly invoicing from
Landlord to Tenant to reflect Tenant's pro-rata share of the percentage of the
work completed. For example, if the Cost of the Work is $568,746.00 then Tenant
would pay 50% of each monthly invoice. If Landlord completes $20,000.00 of the
work in the first month then Tenant would pay $10,000.00 to Landlord as its
pro-rata share of the Cost of the Work completed to that date.. If Landlord
wishes to utilize certain subcontractors but Tenant requests certain major work
to be performed by other subcontractors of their naming, Landlord shall utilize
such subcontractors but Landlord shall have no responsibility for such
designated subcontractors's work nor for the timeliness with which such work is
performed. Additionally, any delays caused by such designated subcontractors,
Tenant, or Tenant's architect shall result in Landlord's Work being deemed to
have been completed and a certificate issued when such events would have
occurred but for such delays. Once Tenant has accepted the price of the work,
Landlord shall commence having the work performed. Any changes to the Cost of
the Work At Tenant's Expense caused by delays, errors, omissions or additions
from Tenant or Tenant's architect, consultants or agents shall be paid for by
Tenant plus a 7% Construction Manager fee and any applicable general conditions.
Once the Landlord's Work At Tenant's Expense is completed (subject to adjustment
for any changes ordered or consented to by Tenant) if the Landlord's Work At
Tenant's Expense is less than $270,000.00 and Tenant is not in default
hereunder, Landlord shall pay to Tenant the difference between such costs and
$270,000.00
The term "Substantially Completed" shall mean the completion of Landlord's
Work in accordance with the approved plans, except for minor details of
construction, mechanical adjustments or decorations or other punch list items
which do not materially adversely affect Tenant's use of the Premises for their
intended purpose; provided that, for purposes of relevant portions of this
Lease, the Premises shall be deemed to have been Substantially Completed one day
earlier for each day of Tenant Delay. (A Tenant Delay shall mean delays in the
completion of construction of Landlord's Work which are caused by Tenant, its
architects, engineers or consultants and (ii) delays in the completion of
construction of any Tenant extra work (which shall mean any additional or
changes to the work specified in approved plans) beyond the date the remainder
of the Landlord's Work could have been completed absent such Tenant extra work
due to limited supplies or suppliers, delays in fabrication, installation or
delivery, labor problems or other presently unforseeable circumstances ).
Landlord agrees to complete such punch list items within sixty (60) days of
Landlord's receipt of notice of such punch list items from Tenant unless such
work requires materials or work not reasonably capable of being installed or
completed within such period in which event Landlord shall commence such work or
order the necessary materials within such time period and thereafter diligently
prosecute the same until completion..
ARTICLE 4 - Tax Payments
4.01. For the purposes of this Article 4 and other provisions of this
Lease:
(a) The term "Taxes" shall mean (i) the real estate taxes, assessments and
special assessments imposed upon the Project by any federal, state, municipal or
other governments or governmental bodies or authorities (including any payment
in lieu of taxes pursuant to any Payment-In-Lieu-Of-Tax Agreement or similar
agreement ("PILOT") but, (A) any expenses incurred by Landlord or any other
tenant in contesting such taxes or assessments and/or the assessed value of the
Improvements and/or the Land, which expenses shall be allocated to the Tax Year
to which such expenses relate. If at any time during the Term the methods of
taxation prevailing on the date hereof shall be altered so that in lieu of, or
as an addition to or as a substitute for, the whole or any part of such real
estate taxes, assessments and special assessments now imposed on real estate
there shall be levied, assessed or imposed (x) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (y) any other such additional or
substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Taxes" for the
purposes hereof.
(b) The term "Tax Year" shall mean the period of 12 calendar months
beginning on January 1 of the year in which the Term commences, and each
succeeding 12 month period thereafter.
The term "Base Tax Year" shall mean the First Tax Year.
(c) The term "Tenant's Proportionate Share" shall mean 50%, subject to
change as provided in Section 4.06 and subject to change as provided below in
this subdivision (c). If any building or buildings is or are enlarged,
demolished or removed from the Land or any new building or buildings is or are
erected on the Land, the term "Tenant's Proportionate Share" shall mean the
percentage that represents a fraction the numerator of which is the number of
square feet of gross rentable area in the Premises and the denominator of which
is the aggregate number of square feet of gross rentable area of all the
buildings on the Land, subject to change as provided in Section 4.06, prorated
proportionately for any Tax Year in which the change may occur.
4.02. Any Taxes for a real estate fiscal tax year, a part of which is
included within a particular Tax Year and a part of which is not so included,
shall be apportioned on the basis of the number of days in the real estate
fiscal tax year included in the particular Tax Year for the purpose of making
the computations under Section 4.03.
4.03. For each Tax Year, any part of which shall occur during the Term,
Tenant shall pay to Landlord an amount (prorated to the extent provided in
Section 4.05, if applicable) (herein called the "Tax Payment") equal to Tenant's
Proportionate Share of (a) the Taxes for such Tax Year . The Tax Payment for
each Tax Year shall be due and payable in monthly installments in an amount
estimated by Landlord and payable together with each installment of Fixed Rent.
Landlord shall bill Tenant for any Tax Payment installment(s) payable by Tenant
pursuant to this Article, such bill to set forth in reasonable detail the
computation of the estimated Tax Payment, which amounts shall be payable
thereafter by Tenant unless and until Landlord issues a future bill changing the
estimated payments. In the event of any increase in the Taxes for any Tax Year,
whether during or after such Tax Year, or any decrease in the Taxes during such
Tax Year, the Tax Payment for such Tax Year shall be appropriately adjusted and
paid or refunded, as the case may be, in accordance therewith. Within 120 days
after the end of each Tax Year Landlord shall furnish to Tenant a statement for
such Tax Year including a copy of the tax bill for the Project. If the statement
shows that the sums paid by Tenant under this Section 4.03 exceeded the Tax
Payment to be paid by Tenant for such Tax Year, Landlord shall promptly refund
to Tenant the amount of such excess; and if the statement for such Tax Year
shows that the sums so paid by Tenant were less than the Tax Payment to be paid
by Tenant for such Tax Year, Tenant shall pay to Landlord the amount of such
deficiency within 10 days after demand therefor
4.04. If Landlord shall receive a refund of the Taxes for any Tax Year ,
Landlord shall pay to Tenant, Tenant's Proportionate Share of the net refund
(after deducting from such total refund the costs and expenses, including, but
not limited to, appraisal, accounting and legal fees of obtaining the same, to
the extent that such costs and expenses were not included in the Taxes for such
Tax Year); provided, however, (a) such payment or credit to Tenant shall in no
event exceed Tenant's Tax Payment paid for such Tax Year.
4.05. If a Tax Year ends after the expiration or termination of the Term,
the Tax Payment therefor shall be prorated to correspond to that portion of such
Tax Year occurring within the Term.
The provisions of this Article 4 shall survive termination of this Lease.
ARTICLE 5 - Operating Expense Payments
5.01. For the purposes of this Article 5 and other provisions of this
Lease:
(a) The term "Operating Expenses" shall mean all expenses paid or incurred
by Landlord or on Landlord's behalf in respect of the repair, maintenance and
operation of the Project, including, without limitation, all expenses paid or
incurred as a result of Landlord complying with its obligations under this Lease
(except for Landlord's Work in connection with getting the Premises ready for
Tenant `s initial occupancy). . Operating Expenses shall include, without
limitation, (i) salaries, wages, medical, surgical, union and general welfare
benefits (including, without limitation, group life insurance and pension and
welfare payments and contributions and all other fringe benefits paid to, for or
with respect to all persons (whether employees of Landlord or its managing
agent) engaged in the repair, operation and maintenance of the Project; (ii)
payroll taxes, workers' compensation, uniforms, dry cleaning, and related
expenses for such persons; (iii) the cost of all charges for gas, steam,
electricity, heat, ventilation, air-conditioning, water and other utilities
furnished to the buildings within the Project (including, without limitation,
the common areas thereof) together with any taxes on such utilities (excluding
however, the cost of electricity, heat, ventilating and air-conditioning
described in clause (9) of this definition); (iv) the cost of painting; (v) the
cost of replacements for tools and equipment used in the operation, maintenance,
and repair of the Property and charges for telephone service for the Property;
(vi) financial expenses incurred in connection with the operation of the
Project, such as insurance premiums (including, without limitation, liability
insurance, fire and casualty insurance, rent insurance and any other insurance),
attorneys' fees and disbursements (exclusive of any such fees and disbursements
incurred in applying for any reduction of Taxes or in connection with the
leasing of space in the Project or the enforcement of leases), auditing,
accounting and other professional fees and expenses, association dues and any
other ordinary and customary financial expenses incurred in connection with the
operation of the Project; (vii) the cost or rentals of all supplies and
equipment (including, without limitation, building and cleaning supplies),
tools, materials and equipment, and sales and other taxes thereon; (viii) cost
of hand tools and other movable equipment used in the repair, maintenance or
operation of the Project; (ix) the cost of all charges for window and other
cleaning and janitorial and security services; (x) charges of independent
contractors; (xi) the cost of repairs and replacements made by Landlord; (xii)
the cost of alterations and improvements to the Project made by reason of Legal
Requirements or Insurance Requirements; (xiii) payments under service contracts;
(xiv) management fees or, if no managing agent is employed by Landlord, a sum in
lieu thereof which is not in excess of the then prevailing rates for management
fees of similar properties in Suffolk County (but not less than 4% of the rents
and additional charges of the Project); (xv) the reasonable costs of opening and
operating an on-site management office in the Project, including, without
limitation, the fair market rental value thereof; (xvi) all other charges
properly allocable to the repair, operation and maintenance of the Project in
accordance with generally accepted accounting principles; and (xvii) 15% of all
of the foregoing expenses to cover Landlord's administrative supervision,
overhead and general conditions; excluding, however, (1) depreciation, (2)
interest on and amortization of debts, (3) ground rent, (4) leasehold
improvements made for existing or future tenants of the Project, (5) brokerage
commissions, (6) refinancing costs, (7) costs and expenses in connection with
the construction of new buildings, (8) Taxes and (9) the cost of electricity
furnished to the Premises or to other tenants of the Project. The cost of any
capital improvement (excluding any new buildings) or machinery or equipment
shall be included in Operating Expenses for the Operating Year in which such
improvement was made or machinery or equipment was purchased, provided that to
the extent the cost of such capital improvement or machinery or equipment is
required to be capitalized for federal income tax purposes, such cost shall be
amortized on a straight-line basis over the useful life thereof utilized for
federal income tax purposes, and the annual amortization of such capital
improvement or machinery or equipment, together with interest on the unamortized
balance of such cost at the Lease Interest Rate, shall be included in Operating
Expenses. Any cost or expense shall be included in Operating Expenses for any
Operating Year no more than once, notwithstanding that such cost or expense may
fall under more than one of the categories listed above. Landlord may use
related or affiliated entities to provide services or furnish materials for the
Project provided that the rates or fees charged by such entities are competitive
with those charged by unrelated or unaffiliated entities for the same services
or materials. If during any Operating Year the tenant or occupant of any space
in the Project undertook to perform work or services therein in lieu of having
Landlord perform the same and the cost thereof would have been included in
Operating Expenses if done by Landlord, then, in any such event(s), provided
Landlord has given consideration for such tenant or occupant to perform such
work or services, the Operating Expenses for such Operating Year shall include
the amount that would have been incurred if Landlord had performed such work or
services, as the case may be. Operating Expenses shall be calculated on the
accrual basis of accounting.
(b) The term "Operating Year" shall mean the calendar year beginning on
January 1 of the year in which the Term commences, and each succeeding calendar
year thereafter.
(c) The term "Operating Statement" shall mean a written statement prepared
by Landlord or its agent, setting forth Landlord's computation of the sum
payable by Tenant under this Article for a specified Operating Year.
5.02. For each Operating Years (for which Commencement Date Operating Year
Operating Expenses shall be annualized by Landlord [if it is not a full year]
for a full year), any part of which occurs during the Term, Tenant shall pay to
Landlord an amount (prorated to the extent provided in Section 5.06, if
applicable) (herein called the "Operating Payment") equal to the greater of (a)
Tenant's Proportionate Share of the Operating Expenses for such Operating Year,
or (b) the Operating Payment for the prior Operating Year. Said payments shall
be made as provided in Section 5.03.
5.03. Landlord shall furnish to Tenant, prior to the commencement of each
Operating Year, a written statement setting forth Landlord's estimate of the
Operating Payment for such Operating Year. Tenant shall pay to Landlord on the
first day of each month during such Operating Year an amount equal to
one-twelfth of Landlord's estimate of the Operating Payment for such Operating
Year. If, however, Landlord shall furnish any such estimate for an Operating
Year subsequent to the commencement thereof, then (a) until the first day of the
month following the month in which such estimate is furnished to Tenant, Tenant
shall pay to Landlord on the first day of each month an amount equal to the
monthly sum payable by Tenant to Landlord under this Section in respect of the
last month of the preceding Operating Year; (b) after such estimate is furnished
to Tenant or included in or together with such estimate, Landlord shall give
notice to Tenant stating whether the installments of the Operating Payment
previously made for such Operating Year were greater or less than the
installments of the Operating Payment to be made for such Operating Year in
accordance with such estimate, and (i) if there shall be a deficiency, Tenant
shall pay to Landlord the amount thereof within 10 days after demand therefor,
or (ii) if there shall have been an overpayment, Landlord shall promptly either
refund to Tenant the amount thereof; and (c) on the first day of the month
following the month in which such estimate is furnished to Tenant, and monthly
thereafter throughout the remainder of such Operating Year, Tenant shall pay to
Landlord an amount equal to one-twelfth of the Operating Payment shown on such
estimate. Landlord may, at any time during each Operating Year, furnish to
Tenant a revised statement of Landlord's estimate of the Operating Payment for
such Operating Year; and in such case, the Operating Payment for such Operating
Year shall be adjusted and paid or refunded, as the case may be, substantially
in the same manner as provided in the preceding sentence.
5.04. Within 120 days after the end of each Operating Year after the
Operating Year in which the Commencement Date occurs, Landlord shall furnish to
Tenant an Operating Statement for such Operating Year. If the Operating
Statement shows that the sums paid by Tenant under Section 5.03 exceeded the
Operating Payment to be paid by Tenant for such Operating Year, Landlord shall
promptly refund to Tenant the amount of such excess; and if the Operating
Statement for such Operating Year shows that the sums so paid by Tenant were
less than the Operating Payment to be paid by Tenant for such Operating Year,
Tenant shall pay to Landlord the amount of such deficiency within 10 days after
demand therefor.
5.05. Tenant, upon notice given within 60 days of the receipt of such
Operating Statement, may elect to have Tenant's designated (in such notice)
certified public accountant (who may be an employee of Tenant) examine such of
Landlord's books and records as are directly relevant to the Operating Statement
in question. If Tenant shall not give such notice within such 60-day period,
then the Operating Statement as furnished by Landlord shall be conclusive and
binding upon Tenant. Pending the resolution of any contest, Tenant shall
continue to pay all sums as determined to be due in the first instance by
Landlord's Operating Statement; and, upon the resolution of such contest,
suitable adjustment shall be made in accordance therewith with appropriate
refund to be made by Landlord to Tenant (or credit allowed Tenant against the
Fixed Rent and Additional Charges becoming due). The provisions of this Section
5.05 shall survive the expiration or termination of this Lease.
5.06. If the Commencement Date shall occur other than on the first day of
an Operating Year or an Operating Year ends after the expiration or termination
of this Lease, any Additional Charges in respect thereof payable under this
Article shall be equitably prorated to correspond to that portion of the
Operating Year occurring within the Term.
ARTICLE 6 - Subordination, Notice to Superior
Lessors and Superior Mortgagees
6.01. The holder of any mortgage which may now or hereafter affect the Land
and/or the Building and/or any Superior Lease (as hereinafter defined) may elect
that this Lease and all rights of Tenant hereunder shall have priority over such
mortgage and, upon notification by such holder to Tenant, this Lease shall be
deemed to have priority over such mortgage, whether this Lease is dated prior to
or subsequent to the date of such mortgage. Except for any mortgage where the
holder gave the aforesaid notification that this Lease shall have priority over
such mortgage, this Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all ground leases, overriding leases and underlying
leases of the Land and/or the Improvements now or hereafter existing and to all
mortgages which may now or hereafter affect the Land and/or the Improvements
and/or any of such leases, including, without limitation, that certain Mortgage
dated May 21, 2004, between Landlord, as Mortgagor, and Wells Fargo Bank, N.A.
(herein called "Mortgagee"), as Mortgagee, whether or not such mortgages shall
also cover other lands and/or buildings and/or leases, to each and every advance
made or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such leases and such mortgages and
spreaders and consolidations of such mortgages. This Section shall be
self-operative and no further instrument of subordination or priority (as
described in the first sentence of this Section) shall be required. In
confirmation of such subordination or priority (as described in the first
sentence of this Section), Tenant shall promptly execute, acknowledge and
deliver any instrument that Landlord, the lessor under any such lease or the
holder of any such mortgage or any of their respective successors in interest
may reasonably request to evidence such subordination or priority; and if Tenant
fails to execute, acknowledge or deliver any such instruments within 10 days
after request therefor, Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact, coupled with an interest, to execute and
deliver any such instruments for and on behalf of Tenant. Any lease to which
this Lease is, at the time referred to, subject and subordinate is herein called
a "Superior Lease," and the lessor of a Superior Lease or its successor in
interest, at the time referred to, is herein called a "Superior Lessor". Any
mortgage (a) to which this Lease is, at the time referred to, subject and
subordinate or (b) to which this Lease shall have priority due to the effect of
the first sentence of this Section is herein called a "Superior Mortgage" and
the holder of a Superior Mortgage is herein called a "Superior Mortgagee."
Notwithstanding the foregoing, the subordination of this Lease to the
present Superior Mortgage is subject to the condition that Landlord shall obtain
from the present mortgagee on the Project. (herein called "Mortgagee"), a
written agreement from the Mortgagee, that, so long as Tenant is not in default
under this Lease beyond all applicable grace, notice and cure periods, the
Mortgagee will not disturb Tenant's occupancy, including, but not limited to, in
the event of any foreclosure of such mortgage. A copy of the form of
subordination agreement for the current Superior Mortgagee is attached hereto as
Exhibit "__". Additionally, Landlord shall acquire from any future Superior
Mortgagee or Superior Lessor a written agreement to the same effect. However
failure to obtain such "Subordination, Attornment and Non Disturbance Agreement
will not affect the subordination of this Lease to any future Superior Mortgages
or Superior Leases, nor entitle Tenant to any reduction or abatement of any
payments hereunder. Landlord's obligation to procure a subordination agreement
from a future Superior Mortgagee or Superior Lessor shall only be enforced in an
action for specific performance or damages as allowed herein. Such
"Subordination, Attornment and Non Disturbance Agreement" will be on the
Mortgagee's, Superior Mortgagee's or Superior Lessor's standard form and may
contain provisions not provided for hereunder (which provisions shall not cause
Tenant to incur any material, additional cost or obligations or reduce any
rights provided Tenant by this Lease, but which will include the non-disturbance
provision provided for in the preceding sentence) and which shall be reasonably
agreed to between Tenant, Superior Mortgagee, Superior Lessor and Landlord..
6.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease, as the case may be, to remedy the same (which reasonable period
shall in no event be less than r the period to which Landlord would be entitled
under this Lease or otherwise, after similar notice, to effect such remedy),
provided such Superior Mortgagee or Superior Lessor shall with due diligence
give Tenant notice of intention to, and commence and continue to, remedy such
act or omission. The current address of Mortgagee, a Superior Mortgagee, is:
Wells Fargo Bank, N.A., New York, New York .
6.03. If any Superior Mortgagee or Superior Lessor shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights (herein called a "Successor Landlord") and upon
such Successor Landlord's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize such Successor Landlord as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence such adornment.
Upon such adornment this Lease shall continue in full force and effect as a
direct lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Lease except that the
Successor Landlord shall not (a) be liable for any previous act or omission of
Landlord under this Lease; (b) be subject to any offset, not expressly provided
for in this Lease, which theretofore shall have accrued to Tenant against
Landlord; (c) be obligated to complete any work to prepare the Premises for
Tenant's occupancy; (d) be obligated to make any payment to or on behalf of
Tenant; (e) be required to account for any security deposit other than any
actually delivered to the Successor Landlord; or (f) be bound by any previous
modification of this Lease or by any previous prepayment of more than one
month's Fixed Rent, unless such modification or prepayment shall have been
expressly approved in writing by the lessor of the Superior Lease or the holder
of the Superior Mortgage through or by reason of which the Successor Landlord
shall have succeeded to the rights of Landlord under this Lease.
6.04. If any prospective or actual Superior Mortgagee or Superior Lessor
requires any modification of this Lease, Tenant shall, upon notice thereof from
Landlord, promptly execute and deliver to Landlord an instrument reasonably
acceptable to Tenant accompanying said notice from Landlord to effect such
modification if such modification does not adversely affect in any material
respect any of Tenant's rights under this Lease and does not increase in any
material respect any of Tenant's obligations under this Lease.
ARTICLE 7 - Quiet Enjoyment
7.01. So long as Tenant pays all of the Fixed Rent and Additional Charges
and performs all of Tenant's other obligations hereunder, Tenant shall peaceably
and quietly have, hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord or any person lawfully claiming through or under
Landlord, subject, nevertheless, to the provisions of this Lease and to any
Superior Leases and Superior Mortgages. This covenant shall be construed as a
covenant running with the Land, and is not, nor shall it be construed as, a
personal covenant of Landlord, except to the extent of Landlord's interest in
this Lease and only so long as such interest shall continue, and thereafter this
covenant shall be binding only upon subsequent successors in interest of
Landlord's interest in this Lease, to the extent of their respective interests,
as and when they shall acquire the same, and so long as they shall retain such
interest.
ARTICLE 8 - Assignment, Subletting and Mortgaging
8.01. Tenant shall not, whether voluntarily, involuntarily, or by operation
of law or otherwise (a) assign or otherwise transfer this Lease, or offer or
advertise to do so, (b) sublet the Premises or any part thereof, or offer or
advertise to do so, or allow the same to be used, occupied or utilized by anyone
other than Tenant, or (c) mortgage, pledge, encumber or otherwise hypothecate
this Lease or the Premises or any part thereof in any manner whatsoever, without
in each instance obtaining the prior consent of Landlord (which consent shall
not be unreasonably withheld, conditioned or delayed) and all Superior
Mortgagees, if required. No consent of Landlord shall be required for any
assignment or subletting to any subsidiary, affiliate or related company of
Tenant with a similar net worth to Tenant and for the same use as provided for
herein. In the event at any time Landlord's consent is required hereunder and it
is determined that such consent was unreasonably withheld, Landlord shall not be
liable for consequential or punitive damages, Tenant's sole remedy to be to
obtain an order requiring Landlord's consent to such assignment or subletting.
8.02. If and so long as Tenant is a corporation, a limited liability
company, or a partnership, the following shall be deemed to be an assignment of
this Lease under Section 8.01 prohibited by said Section unless Tenant obtains
the prior consent of Landlord and all Superior Mortgagees: one or more sales or
transfers of stock, limited liability company interests, or partnership
interests, voluntarily, involuntarily, by operation of law or otherwise, or the
issuance of new stock, limited liability company interests or partnership
interests, by which an aggregate of more than 50% of Tenant's stock or limited
liability company interests or partnership interests shall be vested in a party
or parties who are not stockholders, members or partners as of the date hereof.
This Section shall not apply to transactions with a corporation, limited
liability company or partnership into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are transferred or
to any corporation, limited liability company or partnership which controls or
is controlled by Tenant or is under common control with Tenant if (a) the
successor to Tenant has a tangible net worth computed in accordance with
generally accepted accounting principles at least equal to the greater of (i)
the tangible net worth of Tenant immediately prior to such merger, consolidation
or transfer, or (ii) the tangible net worth on the date of this Lease of the
original Tenant herein named, and (b) proof satisfactory to Landlord of such
tangible net worth is delivered to Landlord at least 10 days prior to the
effective date of any such transaction. The provisions of this Section shall not
apply to any corporation all the outstanding voting stock of which is listed on
a national securities exchange (as defined in the Securities Exchange Act of
1934, as amended) or is traded in the over-the-counter market with quotations
reported by the National Association of Securities Dealers through its automated
system for reporting quotations.
8.03. If this Lease is assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof are sublet or used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such default, collect
rent from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the Fixed Rent and Additional Charges herein reserved, but
no such assignment, subletting, occupancy or collection shall be deemed a waiver
of any of the provisions of Section 8.01, or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord and any
Superior Mortgagee to assignment, mortgaging, subletting or use or occupancy by
others shall not in any way be considered to relieve Tenant from obtaining the
consent of Landlord and all Superior Mortgagees to any other or further
assignment, mortgaging, subletting or use or occupancy by others not expressly
permitted by this Article. References in this Lease to use or occupancy by
others (that is, anyone other than Tenant) shall not be construed as limited to
subtenants and those claiming under or through subtenants but as including also
licensees and others claiming under or through Tenant, immediately or remotely.
8.04. Any assignment or transfer, whether made with Landlord's and all
Superior Mortgagees' consent pursuant to Section 8.01 or without the requirement
of Landlord's and all Superior Mortgagees' consent pursuant to Section 8.02,
shall be made only if, and shall not be effective until, the assignee shall
execute, acknowledge and deliver to Landlord an agreement in form and substance
reasonably satisfactory to Landlord and all Superior Mortgagees whereby the
assignee shall assume the obligations of this Lease on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
in Section 8.01 shall, notwithstanding such assignment or transfer, continue to
be binding upon it in respect of all future assignments and transfers.
Notwithstanding any assignment or transfer, whether or not in violation of the
provisions of this Lease, and notwithstanding the acceptance of the Fixed Rent
or Additional Charges by Landlord from an assignee, transferee, or any other
party, the original named Tenant shall remain fully liable for the payment of
the Fixed Rent and Additional Charges and for the other obligations of this
Lease on the part of Tenant to be performed or observed.
8.05. The liability of Tenant and any immediate or remote successor in
interest of Tenant and the due performance of the obligations of this Lease on
Tenant's part to be performed or observed shall not be discharged, released or
impaired in any respect by any agreement or stipulation made by Landlord with
the then Tenant extending the time of, or modifying any of the obligations of,
this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations of this Lease.
8.06. Neither the listing of any name other than that of Tenant, whether on
the door of the Premises or on any directory, or otherwise, nor the acceptance
by Landlord of any check not drawn by Tenant in payment of Fixed Rent or
Additional Charges, shall operate to vest any right or interest in this Lease or
in the Premises, nor shall it be deemed to be the consent of Landlord to any
assignment or transfer of this Lease or to any sublease of the Premises or to
the use or occupancy thereof by others.
8.07. Except as specifically provided to the contrary in this Article 8, if
Tenant shall at any time or times during the Term desire to assign this Lease or
sublet all or any part of the Premises, and the Tenant is required to obtain
Landlord's consent to same, Tenant shall give notice thereof to Landlord and all
Superior Mortgagees, which notice shall be accompanied by (a) a copy of the
proposed assignment or sublease, the effective or commencement date of which
shall be at least 60 days after the giving of such notice, (b) a statement
setting forth in reasonable detail the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Premises, and
(c) current financial information with respect to the proposed assignee or
subtenant, including, without limitation, its most recent financial report. Such
notice shall be deemed an offer from Tenant to Landlord whereby Landlord (or
Landlord's designee) may, at its option, (i) sublease such space from Tenant
upon the terms and conditions hereinafter set forth or (ii) terminate this Lease
(if the proposed transaction is an assignment or a sublease of all or
substantially all of the Premises). Said options may be exercised by Landlord by
notice to Tenant at any time within 60 days after such notice has been given by
Tenant to Landlord; and during such 60-day period Tenant shall not assign this
Lease or sublet such space to any person.
8.08. If Landlord exercises its option to terminate this Lease in the case
where Tenant desires either to assign this Lease or sublet all or substantially
all of the Premises, and the Tenant is required to obtain Landlord's consent to
same, then this Lease shall end and expire on the date that such assignment or
sublet was to be effective or commence as if such date was the date set for the
termination of this Lease by its terms, as the case may be, and the Fixed Rent
and Additional Charges shall be paid and apportioned to such date and Tenant
shall have no further liability or obligations under this Lease accruing after
such date.
8.09. If Landlord exercises its option to sublet the Premises which Tenant
desires to sublet, such sublease to Landlord or its designee (as subtenant)
shall be at the rentals set forth in the proposed sublease, and shall be for the
same term as that of the proposed subletting, and:
(a) the sublease shall be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease except such as are
irrelevant or inapplicable, and except as otherwise expressly set forth to the
contrary in this Section;
(b) such sublease shall be upon the same terms and conditions as those
contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in this
Section;
(c) such sublease shall give the sublessee the unqualified and unrestricted
right, without Tenant's permission, to assign such sublease or any interest
therein and/or to further sublet the Premises or any part or parts thereof and
to make any and all changes, alterations, and improvements in the Premises;
(d) such sublease shall provide that any assignee or further subtenant of
its designee may, at the election of Landlord, be permitted to make alterations,
decorations and installations in such space or any part thereof and shall also
provide in substance that any such alterations, decorations and installations in
such space therein made by any assignee or subtenant of Landlord or its designee
may be removed, in whole or in part, by such assignee or subtenant, at its
option, prior to or upon the expiration or other termination of such sublease
provided that such assignee or subtenant, at its expense, shall repair any
damage and injury to such space so sublet caused by such removal; and
(e) such sublease shall provide that (i) the parties to such sublease
expressly negate any intention that any estate created under such sublease be
merged with any other estate held by either of said parties, (ii) any assignment
or further subletting by Landlord or its designee (as the sublessor) may be for
any purpose or purposes that Landlord, in Landlord's uncontrolled discretion,
shall deem suitable or appropriate, and (iii) at the expiration of the term of
such sublease, Tenant will accept the space covered by such sublease in its then
existing condition, subject to the obligations of the subtenant to make such
repairs thereto as may be necessary to preserve the premises demised by such
sublease in good order and condition, ordinary wear and tear and damage by fire
or other casualty excepted.
8.10. If Landlord does not exercise its options pursuant to Section 8.07 to
so sublet the Premises or terminate this Lease and providing that Tenant is not
in default of any of Tenant's obligations under this Lease, Landlord's consent
(which shall be in form reasonably satisfactory to Landlord) to the proposed
assignment or sublease shall not be unreasonably withheld, delayed or
conditioned, provided and upon condition that:
(a) Tenant shall have complied with the provisions of Section 8.07 and
Landlord shall not have exercised any of its options under said Section 8.07
within the time permitted therefor;
(b) in Landlord's judgment the proposed assignee or subtenant is engaged in
a business and the Premises will be used in a manner which (i) is in keeping
with the then standards of the Building, (ii) is limited to the use expressly
permitted under Section 2.01, and (iii) will not violate any negative covenant
as to use contained in any other lease of space in the Project;
(c) the proposed assignee or subtenant is a reputable person of good
character and with sufficient financial worth considering the responsibility
involved, and Landlord has been furnished with reasonable proof thereof;
(d) neither (i) the proposed assignee or sublessee nor (ii) any person
which, directly or indirectly, controls, is controlled by, or is under common
control with, the proposed assignee or sublessee or any person who controls the
proposed assignee or sublessee, is then an occupant of any part of the Project
or any other building in the County of Suffolk owned or operated under a ground
or underlying lease by Landlord or any person which, directly or indirectly,
controls, is controlled by, or is under common control with Landlord or any
person who controls Landlord;
(e) the proposed assignee or sublessee is not a person with whom Landlord
is then negotiating or in the prior six-month period was negotiating to lease
space in the Project;
(f) the form of the proposed sublease (if Tenant proposes to sublease all
of the Premises) shall be in form reasonably satisfactory to Landlord and shall
comply with the applicable provisions of this Article; and
(g) the consent of any Superior Mortgagee whose Superior Mortgage requires
the consent of the Superior Mortgagee shall have been obtained.
8.11. Tenant shall reimburse Landlord on demand for any costs that may be
incurred by Landlord in connection with any proposed assignment or sublease
whether consented to by Landlord or not, including, without limitation, the
costs of making investigations as to the acceptability of the proposed assignee
or subtenant, and legal costs up to a maximum of $2,000.00, incurred in
connection with the granting of any requested consent.
8.12. The amount of the aggregate rent per rentable square foot to be paid
by a proposed subtenant under a proposed sublease shall not be less than the
then current market rent per rentable square foot for the Premises as though the
Premises were vacant. The rental and other terms and conditions of any actual
sublease shall be the same as those contained in the proposed sublease furnished
to Landlord pursuant to Section 8.07. Tenant shall not (a) advertise or
publicize in any way the availability of the Premises without prior notice to
and approval by Landlord, or (b) list the Premises for subletting, whether
through a broker, agent, representative or otherwise at a rental rate less than
the Fixed Rent and Additional Charges at which Landlord is then offering to
lease comparable space in the Project.
8.13. Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article, each subletting pursuant to this
Article shall be subject to all of the covenants, agreements, terms, provisions
and conditions contained in this Lease. Notwithstanding any subletting or any
such subletting to any subtenant and/or acceptance of rent or additional rent by
Landlord from any subtenant, Tenant shall and will remain fully liable for the
payment of the Fixed Rent and Additional Charges due and to become due hereunder
and for the performance of all the covenants, agreements, terms, provisions and
conditions contained in this Lease on the part of Tenant to be performed and all
acts and omissions of any licensee or subtenant or anyone claiming under or
through any subtenant which shall be in violation of any of the obligations of
this Lease, and any such violation shall be deemed to be a violation by Tenant.
Tenant further agrees that notwithstanding any such subletting, no other and
further subletting of the Premises by Tenant or any person claiming through or
under Tenant (except as provided in Section 8.09) shall or will be made except
upon compliance with and subject to the provisions of this Article. If Landlord
shall decline to give its consent to any proposed assignment or sublease, or if
Landlord shall exercise any of its options under Section 8.07, Tenant shall
indemnify, defend and hold harmless Landlord against and from any and all loss,
liability, damages, costs and expenses (including reasonable counsel fees)
resulting from any claims that may be made against Landlord by the proposed
assignee or sublessee or by any brokers or other persons claiming a commission
or similar compensation in connection with the proposed assignment or sublease.
8.14. If (a) Landlord fails to exercise all of its options under Section
8.07 and Landlord consents to a proposed assignment or sublease, and (b) Tenant
fails to execute and deliver the assignment or sublease to which Landlord
consented within 45 days after the giving of such consent, then Tenant shall
again comply with all of the provisions and conditions of Section 8.07 before
assigning this Lease or subletting all or any part of the Premises.
8.15. With respect to each and every sublease or subletting authorized by
Landlord under the provisions of this Lease, it is further agreed that:
(a) no subletting shall be for a term ending later than one day prior to
the expiration date of this Lease;
(b) no sublease shall be valid, and no subtenant shall take possession of
the Premises or any part thereof, until an executed counterpart of such sublease
has been delivered to Landlord, and
(c) each sublease shall provide that it is subject and subordinate to this
Lease and to the matters to which this Lease is or shall be subordinate, and
that in the event of termination, reentry or dispossess by Landlord under this
Lease Landlord may, at its option, take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, and such subtenant shall,
at Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not (i) be liable for
any previous act or omission of Tenant under such sublease, (ii) be subject to
any offset which theretofore accrued to such subtenant against Tenant, (iii) be
obligated to complete any work to prepare the Premises for the subtenant's
occupancy; (iv) be obligated to make any payment to or on behalf of Tenant or
subtenant; (v) be required to account for any security deposit other than any
actually delivered to the Landlord; or (vi) be bound by any previous
modification of such sublease or by any previous prepayment of more than one
month's rent.
8.16. If Landlord gives its consent to any assignment of this Lease or to
any sublease, Tenant shall, in consideration therefor, pay to Landlord, as
Additional Charges:
(a) in the case of an assignment, an amount equal to 50% of all sums and
other considerations paid to Tenant by the assignee for or by reason of such
assignment (including, without limitation, sums paid for the sale of Tenant's
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property, less the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax returns); and
(b) in the case of a sublease, any rents, additional charges or other
consideration payable under the sublease to Tenant by the subtenant which is in
excess of the Fixed Rent and Additional Charges accruing during the term of the
sublease in respect of the subleased space (at the rate per square foot payable
by Tenant hereunder) pursuant to the terms hereof (including, without
limitation, sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property,
less, in the case of the sale thereof, the then net unamortized or undepreciated
cost thereof determined on the basis of Tenant's federal income tax returns,
which net unamortized or undepreciated cost shall be deducted from the sums paid
in connection with such sale in equal monthly installments over the balance of
the term of the sublease). The sums payable under this subdivision (b) shall be
paid to Landlord as and when paid by the subtenant to Tenant.
ARTICLE 9 - Compliance With Legal and Insurance Requirements
9.01. Tenant and Landlord shall give prompt notice to the other of any
notice it receives of the violation of any Legal Requirements or Insurance
Requirements with respect to the Premises or the use or occupation thereof.
Tenant shall, at Tenant's expense, comply with all Legal Requirements and
Insurance Requirements which shall, in respect of the Premises or the use and
occupation thereof, or the abatement of any nuisance in, on or about the
Premises, impose any violation, order or duty on Landlord or Tenant, arising
from (a) Tenant's use of the Premises, (b) the manner of conduct of Tenant's
business or operation of its installations, equipment or other property therein,
(c) any cause or condition created by or at the instance of Tenant, or (d)
breach of any of Tenant's obligations hereunder, and Tenant shall pay all the
costs, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor or Superior Mortgagee by reason of or arising out of
Tenant's failure to fully and promptly comply with and observe the provisions of
this Section. However, Tenant need not comply with any such Legal Requirements
and Insurance Requirements so long as Tenant is contesting the validity thereof,
or the applicability thereof to the Premises, in accordance with Section 9.02.
Subject to the provisions of Section 9.03, Landlord, at its expense, shall
comply with all other Legal Requirements and Insurance Requirements as shall
affect the Premises, but may similarly defer compliance so long as Landlord
shall be contesting the validity or applicability thereof.
9.02. Tenant, at its expense, after notice to Landlord, may contest, by
appropriate proceedings prosecuted diligently and in good faith, the validity,
or applicability to the Premises, of any Legal Requirements and Insurance
Requirements, provided that (a) neither Landlord nor any Superior Mortgagee or
Superior Lessor shall be subject to criminal penalty or to prosecution for a
crime, nor shall the Premises or any part thereof be subject to being condemned
or vacated, by reason of noncompliance or otherwise by reason of such contest;
(b) before the commencement of such contest, Tenant shall furnish to Landlord
such security as shall be satisfactory to Landlord and all Superior Mortgagees,
and Tenant shall indemnify Landlord and any Superior Mortgagees and Superior
Lessors against the cost thereof and against all liability for damages,
interest, penalties and expenses (including reasonable attorneys' fees and
expenses), resulting from or incurred in connection with such contest or
noncompliance; (c) such noncompliance or contest shall not constitute or result
in any violation of any Superior Lease or Superior Mortgage, or if any such
Superior Lease or Superior Mortgage shall permit such noncompliance or contest
on condition of the taking of action or furnishing of security by Landlord, such
action shall be taken and such security shall be furnished at the expense of
Tenant; and (d) Tenant shall keep Landlord advised as to the status of such
proceedings. Without limiting the application of the above, Landlord and/or a
Superior Mortgagee and/or Superior Lessor shall be deemed subject to prosecution
for a crime if Landlord or the Superior Mortgagee or Superior Lessor or any
managing agent for the Project, or any member, manager, officer, director,
partner, shareholder or employee of Landlord or a Superior Mortgagee or Superior
Lessor or any managing agent for the Project, as an individual, is charged with
a crime of any kind or degree whatever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or the Superior
Mortgagee or Superior Lessor or any managing agent for the Project, or such
member, manager, officer, director, partner, shareholder or employee of Landlord
or the Superior Mortgagee or Superior Lessor or any managing agent for the
Project (as the case may be) is required to plead or answer thereto.
9.03. Omitted
ARTICLE 10 - Insurance
10.01. Tenant shall not violate, or permit the violation of, any Insurance
Requirements and shall not do, or permit anything to be done, or keep or permit
anything to be kept in the Premises which would subject Landlord or any Superior
Mortgagee or Superior Lessor to any liability or responsibility for bodily
injury or death or property damage, or which would increase any insurance rate
in respect of insurance maintained by or for the benefit of Landlord over the
rate which would otherwise then be in effect or which would result in insurance
companies of good standing refusing to insure all or any part of the Project or
any contents thereof in amounts reasonably satisfactory to Landlord, or which
would result in the cancellation of or the assertion of any defense by the
insurer in whole or in part to claims under any policy of insurance in respect
of the Project.
10.02. If, by reason of any failure of Tenant to comply with the provisions
of Section 9.01 or Section 10.01, the premiums on insurance maintained by or for
the benefit of Landlord shall be higher than they otherwise would be, Tenant
shall reimburse Landlord, on demand, for that part of such premiums attributable
to such failure on the part of Tenant. A schedule or "make up" of rates for
insurance maintained by or for the benefit of Landlord issued by the New York
Fire Insurance Rating Organization or other similar body making rates for such
insurance shall be conclusive evidence of the facts therein stated and of the
several items and charges in the insurance rate then applicable to such
insurance.
10.03. Tenant, at its expense, shall maintain at all times during the Term
(a) "all risk" property insurance covering the Tenant's Property (hereinafter
defined) with a limit of not less than 100% of the replacement cost thereof, and
(b) commercial general liability insurance, including a contractual liability
endorsement, in respect of the Premises and the conduct or operation of business
therein, with Landlord and its managing agent, if any, and any Superior Lessors
and Superior Mortgagees, whose names and addresses shall have been furnished to
Tenant, as additional insureds, with limits of not less than $5,000,000 combined
single limit bodily injury and property damage liability. The limits of such
insurance shall not limit the liability of Tenant hereunder. Tenant shall
deliver to Landlord and any additional insureds certificates and copies of the
binders for such insurance in form reasonably satisfactory to Landlord issued by
the insurance company or its authorized agent no later than 10 days before the
Commencement Date and prior to the commencement of any work by Tenant. Tenant
shall procure and pay for renewals of such insurance from time to time before
the expiration thereof, and Tenant shall deliver to Landlord and any additional
insureds certificates and copies of the binders for such renewal policy issued
by the insurance company or its authorized agent at least 30 days before the
expiration of any existing policy. All such policies shall be issued by
companies licensed to do business in New York State and reasonably satisfactory
to Landlord. All such policies shall be noncancellable in respect of Landlord
and any additional insureds unless 30 days' prior written notice is given to
Landlord and all additional insureds and all such policies shall provide that no
act or omission of Tenant shall affect or limit the obligations of the insurer
in respect of Landlord and the additional insureds.
Additionally, during any construction, alterations or renovations by or on
behalf of Tenant at the Leased Premises, Tenant shall maintain insurance in the
so-called "All Risk Builders Risk Completed Value Non-Reporting Form",
including, without limitation, collapse coverage, in amounts to be reasonably
determined by Landlord, but in no event less than the amount of $300,000.00.
Such insurance shall be subject to the other provisions of Article 10. of this
Lease, as applicable.
10.04. Each party agrees to have included in each of its insurance policies
(insuring the Building and Landlord's property therein in the case of Landlord,
and insuring the Tenant's Property in the Premises in the case of Tenant,
against loss, damage or destruction by fire or other casualty) a waiver of the
insurer's right of subrogation against the other party during the Term or, if
such waiver is unobtainable or unenforceable, (a) an express agreement that such
policy shall not be invalidated if the insured waives the right of recovery
against any party responsible for a casualty covered by the policy before the
casualty, or (b) any other form of permission for the release of the other
party. If such waiver, agreement or permission shall not be, or shall cease to
be, obtainable from either party's then current insurance company, the insured
party shall so notify the other party promptly after learning thereof, and shall
use its best efforts to obtain the same from another insurance company described
in Section 10.03. If such waiver, agreement or permission is obtainable only by
payment of an additional charge, the insured party shall so notify the other
party promptly after learning thereof, and the insured party shall not be
required to obtain said waiver, agreement or permission unless the other party
pays the additional charge therefor. Each party hereby releases the other, in
respect of any claim (including a claim for negligence) which it might otherwise
have against the other for loss, damage or destruction in respect of its
property occurring during the Term to the extent to which it is insured under a
policy or policies containing a waiver of subrogation or permission to release
liability, as provided in the preceding sentences of this Section. Nothing
contained in this Section shall be deemed to relieve either party of any duty
imposed elsewhere in this Lease to repair, restore or rebuild or to nullify any
abatement of rents provided for elsewhere in this Lease.
10.05. Landlord may from time to time, but not more frequently than once
every year, require that the amount of commercial general liability insurance to
be maintained by Tenant under Section 10.03 be reasonably increased, so that the
amount thereof adequately protects Landlord's interest.
ARTICLE 11- Rules and Regulations
11.01. Tenant and its employees and agents shall faithfully observe and
comply with the rules and regulations attached hereto as Exhibit C, and such
reasonable changes therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter makes and communicates to Tenant in
writing, which, in Landlord's reasonable judgment, shall be necessary for the
reputation, safety, care and appearance of the Project, or the preservation of
good order therein, or the operation or maintenance of the Project or its
equipment and fixtures, and which do not unreasonably affect the conduct of
Tenant's business in the Premises (such rules and regulations as changed from
time to time being herein called the "Rules and Regulations"); provided,
however, that in case of any conflict or inconsistency between the provisions of
this Lease and any of the Rules and Regulations, the provisions of this Lease
shall control.
11.02. Nothing in this Lease shall be construed to impose upon Landlord any
duty or obligation to enforce the Rules and Regulations against any other tenant
or any employees or agents of any other tenant, and Landlord shall not be liable
to Tenant for violation of the Rules and Regulations by any other tenant or its
employees, agents, invitees or licensees.
ARTICLE 12 - Alterations
12.01. Tenant may from time to time, at its expense, make alterations
(herein called the "Alterations") in and to the Premises, excluding structural
changes, provided and upon condition that: (a) the outside appearance of the
Building shall not be affected; (b) the Alterations are nonstructural and the
strength of the Building shall not be affected; (c) the Alterations are to the
interior of the Premises and no part of the Building outside of the Premises
shall be affected; (d) the proper functioning of the mechanical, electrical,
sanitary and other service systems of the Building shall not be adversely
affected and the usage of such systems by Tenant shall not be increased; (e)
before proceeding with any Alteration, other than decorations which otherwise
comply with this Section Tenant shall submit to Landlord for Landlord's approval
(which shall not be unreasonably withheld if the approval of all Superior
Mortgagees or Superior Lessors which Superior Mortgages or Superior Leases if
the Superior Mortgages or Superior Leases require the approval of the Superior
Mortgagee or Superior Lessor shall have been obtained) two sets of plans and
specifications for the work to be done, and Tenant shall not proceed with such
work until it obtains such approval; (f) Tenant shall pay to Landlord upon
demand the reasonable cost and expense of Landlord in (i) reviewing said plans
and specifications and (ii) inspecting the Alterations to determine whether the
same are being performed in accordance with the approved plans and
specifications and all Legal Requirements and Insurance Requirements, including,
without limitation, the fees or cost of any architect, engineer or draftsman,
including the cost, based upon the actual salaries and fringe benefits of
architects, engineers or draftsmen who are employees of Landlord up to a maximum
of $1,500 in each instance, for such purposes; (g) before proceeding with any
Alteration which will cost more than $50,000 (exclusive of the costs of
decorating work and items constituting the Tenant's Property), as estimated, at
Tenant's expense, by a reputable contractor reasonably satisfactory to Landlord
and all Superior Mortgagees [or Superior Lessors], Tenant shall obtain and
deliver to Landlord such security as shall be satisfactory to Landlord and all
Superior Mortgagees [or Superior Lessors]; and (h) Tenant shall fully and
promptly comply with and observe the Rules and Regulations of Landlord then in
force with respect to the making of the Alterations. Tenant agrees that any
review or approval by Landlord of any plans and/or specifications with respect
to any Alterations is solely for Landlord's benefit, and without any
representation or warranty whatsoever to Tenant with respect to the adequacy,
correctness or efficiency thereof or otherwise.
12.02. Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of the Alterations
and for final approval thereof upon completion, and shall cause the Alterations
to be performed in compliance therewith and with all applicable Legal
Requirements and Insurance Requirements. The Alterations shall be diligently
performed in a good and workmanlike manner, using new materials and equipment at
least equal in quality and class to the original installations. The Alterations
shall be performed by contractors first approved by Landlord under the
supervision of a licensed architect. The Alterations shall be performed in such
a manner as not to violate union contracts affecting the Project, or create any
work stoppage, picketing, labor disruption or dispute or any interference with
the business of Landlord or any tenant of the Project. In addition, the
Alterations shall be performed in such a manner as not to otherwise unreasonably
interfere with or delay and as not to impose any additional expense upon
Landlord in the construction, maintenance, repair, operation or cleaning of the
Project, and if any such additional expense shall be incurred by Landlord as a
result of Tenant's performance of the Alterations, Tenant shall pay such
additional expense to Landlord on demand. Throughout the performance of the
Alterations, Tenant shall carry, or cause its contractors to carry, workers'
compensation insurance in statutory limits, "Builder's Risk" insurance
reasonably satisfactory to Landlord, and commercial general liability insurance,
with completed operation endorsement, for any occurrence in or about the
Project, under which Landlord and its managing agent and any Superior Lessors
and Superior Mortgagees, whose names and addresses were furnished to Tenant,
shall be named as additional insureds, in such limits as Landlord may reasonably
require, with insurers reasonably satisfactory to Landlord. Tenant shall furnish
Landlord with reasonably satisfactory evidence that such insurance is in effect
before the commencement of the Alterations and, on request, at reasonable
intervals during the continuance of the Alterations. If any Alterations involve
the removal of any fixtures, equipment or other property in the Premises which
are not Tenant's Property, such fixtures, equipment or other property shall be
replaced prior to the end of the Term at Tenant's expense with new fixtures,
equipment or other property of like utility and at least equal value. Upon
completion of any Alterations (other than mere decorations) Tenant shall deliver
to Landlord scaled and dimensioned reproducible mylars of "as-built" plans for
such Alteration(s).
12.03. Tenant shall have no right or power to do any act or make any
contract which may create or be the foundation for any lien, mortgage or other
encumbrance upon the estate of Tenant or of Landlord, or of any interest of
Landlord in the Building, the Land or the Premises, it being agreed that should
Tenant cause any such alterations, changes, additions, improvements or repairs
to be made to the Premises, or material furnished or labor performed therein or
thereon, neither Landlord nor the Land, the Building nor the Premises shall,
under any circumstances be liable for the payment of any expense incurred or for
the value of any work done or material furnished to the Premises or any part
thereof, but all such alterations, changes, additions, improvements and repairs,
and materials and labor shall be at Tenant's expense, and Tenant shall be solely
and wholly responsible to contractors, laborers and materialmen furnishing labor
and material to the Premises or any part thereof; and every contractor, laborer
and materialman is put on notice that no consent is given by Landlord for such
work to be performed or materials to be furnished on or for the account of
Landlord or which may subject Landlord to any liability or subject Landlord's
interest in the Land, Building or Premises to any lien. Tenant, at its expense,
and with diligence and dispatch, shall procure the cancellation or discharge of
all notices of violation arising from or otherwise connected with the
Alterations, or any other work, labor, services or materials done for or
supplied to Tenant, or any person claiming through or under Tenant, which shall
be issued by the County of Suffolk or the Town of Smithtown or any other public
authority having or asserting jurisdiction. Tenant shall indemnify and save
harmless Landlord and any Superior Mortgagees and Superior Lessors from and
against any and all mechanics' and other liens and encumbrances filed in
connection with the Alterations, or any other work, labor, services or materials
done for or supplied to Tenant, or any person claiming through or under Tenant,
including, without limitation, security interests in any materials, fixtures or
articles so installed in and constituting part of the Premises and against all
costs, expenses and liabilities incurred in connection with any such lien or
encumbrance or any action or proceeding brought thereon. Tenant, at its expense,
shall procure the satisfaction or discharge of record of all such liens and
encumbrances within 10 days after the filing thereof. However, nothing herein
contained shall prevent Tenant from contesting, in good faith and at its own
expense, any notice of violation, provided that Tenant shall comply with the
provisions of Section 9.02.
ARTICLE 13 - Landlord's and Tenant's Property
13.01. All fixtures, equipment, improvements and appurtenances, including,
without limitation, utility lines and equipment, attached to or built into the
Premises at the commencement of or during the Term, whether or not by or at the
expense of Tenant, shall be and remain a part of the Premises, shall be deemed
the property of Landlord and shall not be removed by Tenant, except as provided
in Section 13.02. Further, any carpeting or other personal property in the
Premises on the Commencement Date, unless installed and paid for by Tenant,
shall be and shall remain Landlord's property and shall not be removed by
Tenant.
13.02. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment, whether or not
attached to or built into the Premises, which are installed in the Premises by
or for the account of Tenant without expense to Landlord and can be removed
without structural damage to the Building, and all furniture, furnishings and
other articles of movable personal property owned by Tenant and located in the
Premises (herein collectively called the "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Premises or to the
Building resulting from the installation and/or removal thereof. Any equipment
or other property for which Landlord shall have granted any allowance or credit
to Tenant shall not be deemed to have been installed by or for the account of
Tenant without expense to Landlord, shall not be considered the Tenant's
Property, and shall be deemed the property of Landlord.
13.03. At or before the expiration date of this Lease, or within 15 days
after the date of any earlier termination of this Lease, Tenant, at its expense,
shall remove from the Premises all of the Tenant's Property (which shall also
include any and all wiring and cable in the Premises or Building installed by or
for Tenant), and Tenant shall repair any damage to the Premises or the Building
resulting from any installation and/or removal of the Tenant's Property. Any
other items of the Tenant's Property which shall remain in the Premises after
the expiration date of this Lease, or after a period of 15 days following an
earlier termination date, may, at the option of Landlord, be deemed to have been
abandoned, and in such case such items may be retained by Landlord as its
property or disposed of by Landlord, without accountability, in such manner as
Landlord shall determine at Tenant's expense.
ARTICLE 14 - Repairs and Maintenance
14.01. Tenant shall, at its expense, throughout the Term, take good care of
the Premises, the fixtures and appurtenances therein and the Tenant's Property.
Tenant shall be responsible for all repairs and replacements, interior and
exterior, structural and nonstructural, ordinary and extraordinary, in and to
the Premises and the Building and the facilities and systems thereof, the need
for which arises out of (a) the performance or existence of any work by Tenant
or Alterations, (b) the installation, use or operation of the Tenant's Property
in the Premises, (c) the moving of the Tenant's Property in or out of the
Premises or the Building, or (d) the act, omission, misuse or neglect of Tenant
or any of its subtenants or its or their employees, agents, contractors or
invitees. Tenant, at its expense, shall promptly repair or replace all
scratched, damaged or broken doors and glass in and about the Premises and shall
be responsible for all repairs, painting, maintenance and replacement of wall
and floor coverings in the Premises and for the repair and maintenance of all
sanitary and electrical fixtures and equipment therein. Tenant shall promptly
make, at Tenant's expense, all repairs in or to the Premises for which Tenant is
responsible. Any repairs required to be made by Tenant to the mechanical,
electrical, sanitary, heating, ventilating, air-conditioning or other systems of
the Building shall be performed only by contractor(s) approved by Landlord. Any
other repairs in or to the Building and the facilities and systems thereof for
which Tenant is responsible, may be performed by Landlord at Tenant's expense.
14.02. Landlord shall make all repairs and replacements, structural and
otherwise, interior and exterior, as and when needed in or about the Premises,
except for those repairs and replacements for which Tenant is responsible
pursuant to any of the provisions of this Lease, including the common areas, as
Class C office/industrial building in the Hauppauge Office Park. Landlord shall
use commercially reasonable effort to not unduly interfere with Tenant's
occupancy or operations in connection with the foregoing, but shall not be
required to utilize overtime or non business day or non business hours work. If
such work substantially prevents Tenant to use the Premises for its work (or if
a portion is affected them as to the proportioned represented by such portion as
against the entire Premises), is necessitated by acts or omissions of Landlord
and is not a result of those matters sect forth in Section 42.04, and continues
for at least 15 consecutive days, Tenant `s Fixed Rent shall abate commencing
with the sixteenth day until the repairs or replacements are substantially
completed.
14.03. Except as otherwise expressly provided in this Lease, Landlord shall
have no liability to Tenant, nor shall Tenant's covenants and obligations under
this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease, or required by law, to make in or to any portion of the Building
or the Premises, or in or to the fixtures, equipment or appurtenances of the
Building or the Premises.
ARTICLE 15 - Electric Energy
15.01. (a) Tenant, at its sole cost and expense, shall arrange with the
public utility company servicing the Building of which the Premises are a part
for electric and gas service at the Premises. Lessor shall arrange with such
utility company for the furnishing and installation (at Tenant's expense) of an
electric and gas meter or meters to measure the consumption of electricity and
gas solely at the Premises, and for the supply, but not the payment for (which
shall be Tenant's sole responsibility), electric and gas service to each portion
of the Premises.
(b) Landlord shall not be liable in any event to Tenant for any failure or
defect in the supply or character of electric energy or gas furnished to the
Premises by reason of any requirement, act or omission of the public utility
serving the Building with electric energy or gas or for any other reason.
15.02. Landlord shall furnish and install all replacement lighting tubes,
lamps, bulbs and ballasts required in the Premises, and Tenant shall pay to
Landlord or its designated contractor upon demand the then established charges
therefor of Landlord or its designated contractor, as the case may be.
15.03. Tenant's use of electric energy in the Premises shall not at any
time exceed the capacity of any of the electrical conductors and equipment in or
otherwise serving the Premises. In order to insure that such capacity is not
exceeded and to avert possible adverse effect upon the Building's distribution
of electricity via the Building's electric system, Tenant shall not, without
Landlord's prior consent in each instance (which shall not be unreasonably
withheld, based upon availability of electric energy in the Building as
allocated by Landlord to various areas of the Building) connect any fixtures,
appliances or equipment (other than normal business machines, including personal
computers which do not materially increase Tenant's electrical consumption) to
the Building's electric system or make any alterations or additions to the
electric system of the Premises existing on the Commencement Date. Should
Landlord grant such consent, all additional risers or other equipment required
therefor shall be provided by Landlord and the cost thereof shall be paid by
Tenant to Landlord on demand. Landlord shall have the right to require Tenant to
pay sums on account of such cost prior to the installation of any such risers or
equipment.
ARTICLE 16 - Heat, Ventilation and Air-Conditioning
16.01. Landlord shall maintain and operate the heating, ventilating and
air-conditioning systems serving the Premises, and shall furnish heat,
ventilating and air-conditioning in the Premises as may be reasonably required
(except as otherwise provided in this Lease and except for any special
requirements of Tenant arising from its particular use of the Premises and for
Tenant's obligations to pay for all electricity and gas consumed) for reasonably
comfortable occupancy of the Premises during Business Hours of Business Days and
on Saturdays from 8:00 a.m. to 1:00 p.m. If Tenant shall require heat or
air-conditioning service at any other time, Landlord shall furnish such service
for such times ("Overtime Hours") upon not less than 48 hours advance notice
from Tenant. Tenant shall pay Landlord for heat, ventilating and
air-conditioning as Additional Charges, within ten days after Landlord bills
Tenant therefor, which bills shall be rendered not more often than monthly. The
amount of such Additional Charges for a given period of time shall be equal to
110% of the total cost to Landlord of delivering such services for the Premises
for the Business Hours and Overtime Hours of Tenant in such period.
16.02. The performance by Landlord of its obligations under Section 16.01
is subject to Tenant's compliance with the conditions of occupancy and connected
load established by Landlord. Use of the Premises, or any part thereof, in a
manner exceeding the heating, ventilating and/or air-conditioning design
conditions (including occupancy and connected electrical load), or rearrangement
of partitioning which interferes with normal operation of the heating,
ventilating and/or air-conditioning in the Premises, or the use of computer or
data processing machines or other machines or equipment in excess of normal
office usage including personal computers, may require changes in the heating,
ventilating and/or air-conditioning systems servicing the Premises, in order to
provide comfortable occupancy. Such changes, so occasioned, shall be made by
Tenant, at its expense, as Alterations in accordance with the provisions of
Article 12, but only to the extent permitted and upon the conditions set forth
in that Article.
ARTICLE 17 - Other Services; Service Interruption
17.01. Landlord shall furnish adequate hot and cold water to the Premises
for drinking, lavatory and cleaning purposes. If Tenant uses water for any other
purpose, Landlord may install and maintain, at Tenant's expense, meters to
measure Tenant's consumption of cold water and/or hot water for such other
purposes. Tenant shall reimburse Landlord for the quantities of cold water and
hot water shown on such meters on demand.
17.02. Landlord shall cause the Premises, including the exterior and the
interior of the windows thereof but excluding any laboratory space, to be
cleaned on each Business Day in accordance with Tenant's specifications and at
Tenant's sole cost and expense.
17.03. Landlord, its cleaning contractor and their employees shall have
access to the Premises after 5:30 p.m. and before 8:00 a.m. and shall have the
right to use, without charge therefore, all light, power and water in the
Premises reasonably required to clean the Premises as required under Section
17.02.
17.04. If Landlord shall furnish either gas or steam to the Premises,
Landlord shall not be liable in any event to Tenant for any failure or defect in
the supply or character of the gas or steam furnished to the Premises by reason
of any requirement, act or omission of the public utility serving the Building
with steam or for any other reason not attributable solely to Landlord's willful
misconduct or gross negligence. Tenant's use of gas or steam in the Premises
shall not at any time exceed the capacity of any of the gas lines and equipment
or steam lines and equipment in or otherwise then serving the Premises.
17.05. Landlord reserves the right, without any liability to Tenant and
without affecting Tenant's covenants and obligations hereunder, to stop or
interrupt or reduce service of any of the heating, ventilating,
air-conditioning, electric, sanitary, elevator, gas, steam, water or other
Building systems serving the Premises, or to stop or interrupt or reduce any
other services required of Landlord under this Lease (whether or not specified
in Article 16 or this Article 17), whenever and for so long as may be necessary,
by reason of (a) accidents, emergencies, strikes or the occurrence of any of the
other events described in Section 41.04, (b) the making of repairs or changes
which Landlord is required or is permitted by this Lease or by law to make or in
good faith deems necessary, (c) difficulty in securing proper supplies of fuel,
gas, steam, water, electricity, labor or supplies, or (d) any other cause beyond
Landlord's reasonable control, whether similar or dissimilar. Landlord shall use
commercially reasonable effort to not unduly interfere with Tenant's occupancy
or operations in connection with the foregoing, but shall not be required to
utilize overtime or non business day or non business hours work. If such
stoppage or interruption substantially prevents Tenant to use the Premises for
its work (or if a portion is affected them as to the proportioned represented by
such portion as against the entire Premises), is necessitated by acts or
omissions of Landlord and is not a result of those matters set forth above or in
Section 42.04, and continues for at least 15 consecutive days, Tenant `s Fixed
Rent shall abate commencing with the sixteenth day until the stoppage or
interruptions are substantially ended.
ARTICLE 18 - Access and Name of Project
18.01. Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the Premises, all of the Building,
including, without limitation, exterior Building walls, core corridor walls and
doors and any core corridor entrances, any terraces or roofs adjacent to the
Premises and any space in or adjacent to the Premises used for shafts, stacks,
pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, and the use thereof, as well as reasonable access thereto
through the Premises for the purposes of operation, maintenance, decoration and
repair, are reserved to Landlord.
18.02. Landlord reserves the right, and Tenant shall permit Landlord, to
install, erect, use and maintain pipes, ducts and conduits in and through the
Premises behind walls, above ceilings or under floors.
18.03. Landlord and its agents shall have the right to enter and/or pass
through the Premises at any time or times upon reasonably prior notice to Tenant
except in the case of an emergency (a) to examine the Premises and to show them
to actual and prospective Superior Lessors, Superior Mortgagees, or prospective
purchasers, mortgagees or lessees of the Building and (b) to make such repairs,
alterations, additions and improvements in or to the Premises and/or in or to
the Building or its facilities and equipment as Landlord is required or desires
to make. Landlord shall be allowed to take all materials into and on the
Premises that may be required in connection therewith, without any liability to
Tenant and without any reduction of Tenant's covenants and obligations
hereunder. In connection therewith, Landlord will use commercially reasonable
efforts not to unduly interfere with Tenant's business but Landlord shall not be
required to utilize overtime, non business hours or non business days work in
connection therewith.
18.04. If at any time any windows of the Premises are temporarily darkened
or obstructed by reason of any repairs, improvements, maintenance and/or
cleaning in or about the Building, or if any part of the Building, other than
the Premises, is temporarily or permanently closed or inoperable, the same shall
be without any reduction or diminution of Tenant's obligations under this Lease.
18.05. During the period of 18 months prior to the expiration date of this
Lease, Landlord and its agents may exhibit the Premises to prospective tenants.
18.06. If, during the last month of the Term, Tenant has removed all or
substantially all of the Tenant's Property from the Premises, Landlord may,
without notice to Tenant, immediately enter the Premises and alter, renovate and
decorate the same, without reducing or diminishing Tenant's obligations under
this Lease.
18.07. Landlord reserves the right, at any time, without incurring any
liability to Tenant therefor, and without affecting or reducing or diminishing
any of Tenant's obligations hereunder, to make such changes, alterations,
additions and improvements in or to the Building and the fixtures and equipment
thereof, as well as in or to the entrances, doors, halls, passages, elevators,
escalators and stairways thereof, and other public parts of the Building, as
Landlord shall deem necessary or desirable.
18.08. Landlord may adopt any name for the Project. Landlord reserves the
right to change the name and/or address of the Project at any time.
18.09. Landlord and its agents shall have the right to permit access to the
Premises at any time, whether or not Tenant shall be present, (a) by any
receiver, trustee, sheriff, marshal or other public official entitled to, or
purporting to be entitled to, such access (i) for the purpose of taking
possession of or removing any property of Tenant or of any other occupant of the
Premises, or (ii) for any other lawful purpose, or (b) by any representative of
the fire, police, building, sanitation or other department or instrumentality of
any town, county, city, state or federal government. Nothing contained in, nor
any action taken by Landlord under this Section, shall be deemed to constitute
recognition by Landlord that any person other than Tenant has any right or
interest in this Lease or the Premises.
18.10. If Tenant is not present when for any reason entry into the Premises
is necessary or permissible, Landlord or Landlord's agents may enter same by a
master key, or may forcibly enter same, without rendering Landlord or such
agents liable therefor (if during such entry Landlord or such agents accord
reasonable care to the Tenant's Property), and such entry shall not be deemed an
actual or constructive eviction and shall have no effect upon Tenant's
obligations under this Lease.
18.11 Except in case of emergencies, acts beyond Landlord's reasonable
control or other matters provided for in this Lease, Tenant shall have access to
the Premises from exterior doors 24 hours a day, 7 days a week. In connection
therewith, Landlord does not warrant or agree that, in the event of adverse
weather conditions, acts beyond Landlord's control or similar conditions, that
the parking areas or common areas will be cleared of snow or other
matters.
ARTICLE 19 - Notice of Occurrences
19.01. Tenant shall use best efforts to give prompt notice to Landlord of
(a) any occurrence in or about the Premises for which Landlord might be liable,
(b) any fire or other casualty in the Premises, (c) any damage to or defect in
the Premises, including the fixtures, equipment and appurtenances thereof, for
the repair of which Landlord might be responsible, and (d) any damage to or
defect in any part or appurtenance of the Building's sanitary, electrical,
heating, ventilating, air-conditioning, elevator or other systems located in or
passing through the Premises or any part thereof.
ARTICLE 20 - Non-Liability and Indemnification
20.01. Neither Landlord nor any Superior Lessor or Superior Mortgagee shall
be liable to Tenant for any loss, injury or damage to Tenant or to any other
person, or to its or their property, irrespective of the cause of such injury,
damage or loss, unless caused by or resulting from the gross negligence or
willful misconduct of Landlord or the Superior Lessor or Superior Mortgagee, in
the operation or maintenance of the Premises or the Project without contributory
negligence on the part of Tenant, any subtenant or licensee of Tenant or their
respective employees, agents, contractors or invitees. Neither Landlord nor any
Superior Lessor or Superior Mortgagee shall be liable (a) for any damage caused
by other tenants or persons in, on or about the Project, or (b) even if
resulting from negligence or willful misconduct, for consequential damages of
Tenant or any subtenant or licensee of Tenant.
20.02. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Project in the event
of any claim against Landlord or any member, manager, partner, director,
officer, agent or employee of Landlord arising out of or in connection with this
Lease, the relationship of Landlord and Tenant or Tenant's use of the Premises,
and the liability of Landlord arising out of or in connection with this Lease,
the relationship of Landlord and Tenant or Tenant's use of the Premises, shall
be limited to such estate and property of Landlord. No other properties or
assets of Landlord or any partner, member, director, officer, agent or employee
of Landlord shall be subject to levy, execution or other enforcement procedures
for the satisfaction of any judgment (or other judicial process) or for the
satisfaction of any other remedy of Tenant arising out of or in connection with
this Lease, the relationship of Landlord and Tenant or Tenant's use of the
Premises, and if Tenant acquires a lien on or interest in any other properties
or assets by judgment or otherwise, Tenant shall promptly release such lien on
or interest in such other properties and assets by executing, acknowledging and
delivering to Landlord an instrument to that effect prepared by Landlord's
attorneys. Tenant hereby waives the right of specific performance and any other
remedy allowed in equity if specific performance or such other remedy could
result in any liability of Landlord for the payment of money to Tenant or any
court or governmental authority (by way of fines or otherwise) for Landlord's
failure or refusal to perform or observe a judicial decree or determination.
20.03. Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and all Superior Mortgagees, and its and their respective partners,
members, managers, directors, officers, agents and employees from and against
any and all claims arising from or in connection with (a) the conduct or
management of the Premises or of any business therein, or any work or thing
whatsoever done, or any condition created (other than by Landlord) in or about
the Premises during the Term or during the period of time, if any, prior to the
Commencement Date that Tenant may have been given access to the Premises; (b)
any act, omission or negligence of Tenant or any of its subtenants or licensees
or its or their employees or contractors; (c) any accident, injury or damage
whatever (unless caused by Landlord's negligence or willful misconduct)
occurring in, at or upon the Premises; (d) any breach or default by Tenant in
the full and prompt payment and performance of Tenant's obligations under this
Lease; and (e) the failure of Tenant or any of its subtenants or licensees or
its or their employees or contractors to comply with all Legal Requirements and
Insurance Requirements; together with all costs, expenses and liabilities
incurred in or in connection with each such claim or action or proceeding
brought thereon, including, without limitation, all attorneys' fees and
expenses. In case any action or proceeding is brought against Landlord and/or
any Superior Lessor or Superior Mortgagee and/or its or their members, managers,
partners, directors, officers, agents and/or employees by reason of any such
claim, Tenant, upon notice from Landlord or such Superior Lessor or Superior
Mortgagee, shall resist and defend such action or proceeding (by counsel
reasonably satisfactory to Landlord).
ARTICLE 21 - Damage or Destruction
21.01. If the Building or the Premises shall be partially or totally
damaged or destroyed by fire or other casualty (and if this Lease shall not be
terminated as provided in this Article) Landlord shall repair the damage and
restore and rebuild the Building and/or the Premises (except for the Tenant's
Property) with reasonable dispatch after notice to it of the damage or
destruction and the collection of the insurance proceeds attributable to such
damage.
21.02. Subject to the provisions of Section 21.05, if all or part of the
Premises is damaged or destroyed or rendered completely or partially
untenantable on account of fire or other casualty, the Fixed Rent and Additional
Charges under Article 4 and Article 5 shall be reduced in the proportion that
the untenantable area of the Premises bears to the total area of the Premises,
for the period from the date of the damage or destruction to (a) the date the
damage to the Premises is substantially repaired, or (b) if the Building and not
the Premises is so damaged or destroyed, the date on which the Premises is made
tenantable; provided, however, should Tenant reoccupy a portion of the Premises
during the period the repair work is taking place and prior to the date the
Premises are substantially repaired or made tenantable, the Fixed Rent and
Additional Charges under Article 4 and Article 5 allocable to such reoccupied
portion, based upon the proportion which the area of the reoccupied portion of
the Premises bears to the total area of the Premises, shall be payable by Tenant
from the date of such occupancy.
21.03. If the Premises shall be materially (i.e.,30% or more) damaged or
destroyed by fire or other casualty, or if the Building shall be so damaged or
destroyed by fire or other casualty (whether or not the Premises are damaged or
destroyed) that its repair or restoration requires the expenditure (as estimated
by a reputable contractor or architect designated by Landlord) of more than 20%
of the full insurable value of the Building immediately prior to the casualty,
then in either such case Landlord may terminate this Lease by giving Tenant
notice to such effect within 180 days after the date of the fire or other
casualty and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of the date of termination.
21.04. Tenant shall not be entitled to terminate this Lease and no damages,
compensation or claim shall be payable by Landlord for inconvenience, loss of
business or annoyance arising from any repair or restoration of any portion of
the Premises or of the Building pursuant to this Article. Landlord shall use
commercially reasonable efforts to make such repair or restoration promptly and
in such manner as not unreasonably to interfere with Tenant's use and occupancy
of the Premises, but Landlord shall not be required to do such repair or
restoration work except during Business Hours on Business Days. Notwithstanding
the foregoing, if the repairs or restoration is not substantially completed
within one hundred and eighty days of the damage or destruction, Tenant may give
not less than thirty days prior written notice to Landlord commencing with the
date of receipt of such notice by Landlord, terminating this Lease at any time
thereafter, provided the repairs or restoration are not substantially completed
within such notice period.
21.05. Landlord will not carry insurance of any kind on the Tenant's
Property and shall not be obligated to repair any damage to or replace the
Tenant's Property.
21.06. The provisions of this Article shall be deemed an express agreement
governing any case of damage or destruction of the Premises by fire or other
casualty, and Section 227 of the Real Property Law of the State of New York,
providing for such a contingency in the absence of an express agreement, and any
other law of like import, now or hereafter in force, shall have no application
in such case.
ARTICLE 22 - Eminent Domain
22.01. Except as otherwise provided in Section 22.05, if the whole of the
Building or the Premises shall be taken by condemnation or in any other manner
for any public or quasi public use or purpose, this Lease shall terminate as of
the date of vesting of title on such taking (herein called the "Date of the
Taking"), and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of such date.
22.02. Except as otherwise provided in Section 22.05, if any part of the
Building or the Land shall be so taken, this Lease shall be unaffected by such
taking, except that (a) Landlord may, at its option, terminate this Lease by
giving Tenant notice to that effect within 60 days after the Date of the Taking,
and (b) if any part of the Premises shall be so taken and the remaining area of
the Premises shall not be reasonably sufficient for Tenant to continue feasible
operation of its business, or, (c) as reasonably determined by Tenant, if the
remainder of the Building shall be taken so that it shall not be reasonably
feasible for Tenant to continue operation of its business, or (d) fifty percent
or more of the parking areas is taken, Tenant may terminate this Lease by giving
Landlord notice to that effect within 60 days after the Date of the Taking. This
Lease shall terminate on the date that such notice from Landlord or Tenant to
the other shall be given, and the Fixed Rent and Additional Charges shall be
prorated and adjusted as of such termination date. Upon such partial taking and
this Lease continuing in force as to any part of the Premises, the Fixed Rent
and Additional Charges shall be adjusted according to the rentable area
remaining.
22.03. Except as otherwise provided in Section 22.05, Landlord shall be
entitled to receive the entire award or payment in connection with any taking
without deduction therefrom for any estate vested in Tenant by this Lease and
Tenant shall receive no part of such award. Tenant hereby expressly assigns to
Landlord all of its right, title and interest in and to every such award or
payment. Tenant, however, may make a separate claim for value of Tenant's
personal property and fixtures and moving expenses if permitted by law, and if
such claim would not reduce or delay any award to which Landlord would otherwise
be entitled.
22.04. Except as otherwise provided in Section 22.05, in the event of any
taking of less than the whole of the Building and/or the Land which does not
result in termination of this Lease, Landlord, at its expense, and whether or
not any award or awards shall be sufficient for the purpose, shall proceed with
reasonable diligence to repair the remaining parts of the Building and the
Premises (other than those parts of the Premises which are the Tenant's
Property) to substantially their former condition to the extent that the same
may be feasible (subject to reasonable changes which Landlord shall deem
desirable) and so as to constitute complete and tenantable the Building and the
Premises.
22.05. If the temporary use or occupancy of all or any part of the Premises
is taken by condemnation or in any other manner for any public or quasi-public
use or purpose, this Lease and the Term shall remain unaffected by such taking
and Tenant shall continue to be responsible for all of its obligations under
this Lease (except to the extent prevented from so doing by reason of such
taking). In such event Tenant shall be entitled to claim, prove and receive the
entire award unless the period of temporary use or occupancy extends beyond the
expiration date of this Lease, in which event Landlord shall be entitled to
claim, prove and receive that portion of the award attributable to the
restoration of the Premises, and the balance of such award shall be apportioned
between Landlord and Tenant as of the expiration date of this Lease. If such
temporary use or occupancy terminates prior to the expiration date of this
Lease, Tenant, at its own expense, shall restore the Premises as nearly as
possible to its condition prior to the taking.
ARTICLE 23 - Surrender and Holding Over
23.01. On the last day of the Term, or upon any earlier termination of this
Lease, or upon any reentry by Landlord upon the Premises, Tenant shall quit and
surrender the Premises to Landlord "broom-clean" and in good order, condition
and repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under this Lease, and Tenant shall
remove all of the Tenant's Property therefrom except as otherwise expressly
provided in this Lease. No act or thing done by Landlord or its agents shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
23.02. If Tenant remains in possession of the Premises after the
termination of this Lease without the execution of a new lease, Tenant, at the
option of Landlord, shall be deemed to be occupying the Premises as a tenant
from month to month, subject to all of the other terms and conditions of this
Lease insofar as the same are applicable to a month-to-month tenancy, but at a
monthly rental equal to one and one half times for the first thirty days and at
two times the monthly Fixed Rent last payable by Tenant hereunder thereafter,
plus all Additional Charges payable hereunder. Nothing contained in this Section
shall (i) imply any right of Tenant to remain in the Premises after the
termination of this Lease without the execution of a new lease, (ii) imply any
obligation of Landlord to grant a new lease or (iii) be construed to limit any
right or remedy that Landlord has against Tenant as a holdover tenant or
trespasser.
23.03. Tenant expressly waives, for itself and for any person claiming
through or under Tenant, any rights which Tenant or any such person may have
under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may institute to enforce
the terms and conditions of this Lease.
ARTICLE 24 - Default
24.01. This Lease and the Term are subject to the limitation that whenever
Tenant, makes an assignment for the benefit of creditors, or files a voluntary
petition under any bankruptcy or insolvency law, or an involuntary petition
alleging an act of bankruptcy or insolvency is filed against Tenant under any
bankruptcy or insolvency law, or whenever a permanent receiver of Tenant, or of
or for the property of Tenant, is appointed, then (a) if such event occurs
without the acquiescence of Tenant, as the case may be, at any time after the
event continues for 60 days, or (b) in any other case at any time after the
occurrence of any such event, Landlord may give Tenant a notice of intention to
end the Term at the expiration of five days from the date of service of such
notice of intention, and upon the expiration of said five-day period this Lease,
whether or not the Term shall theretofore have commenced, shall terminate with
the same effect as if that day were the expiration date of this Lease, but
Tenant shall remain liable for damages as provided in Article 26.
24.02. This Lease is subject to the further limitations that:
(a) if Tenant defaults in the payment of any Fixed Rent or Additional
Charges, and such default continues for five days, or
(b) if Tenant, whether by action or inaction, is in default of any of its
obligations under this Lease (other than a default in the payment of Fixed Rent
or Additional Charges) and such default continues and is not remedied within 30
days after Landlord gives to Tenant a notice specifying the same, or, in the
case of a default which cannot with due diligence be cured within a period of 30
days and the continuance of which for the period required for cure will not (i)
subject Landlord or any Superior Lessor or Superior Mortgagee to prosecution for
a crime (as more particularly described in Section 9.02) or (ii) result in a
default under any Superior Lease or any Superior Mortgage, if Tenant does not,
(1) within said 30-day period advise Landlord of Tenant's intention to take all
steps necessary to remedy such default, (2) duly commence within said 30-day
period, and thereafter diligently prosecute to completion all steps necessary to
remedy the default and (3) complete such remedy within a reasonable time (and in
any event within one hundred twenty [120] days), after the date of said notice
of Landlord, or
(c) if any event occurs or any contingency arises whereby this Lease or the
estate hereby granted or the unexpired balance of the Term would, by operation
of law or otherwise, devolve upon or pass to any person, firm or corporation
other than Tenant, except as expressly permitted by Article 8, or
(d) if Tenant vacates or abandons the Premises, or
(e) if Tenant (or any person which, directly or indirectly, controls, is
controlled by, or is under common control with Tenant) defaults under any other
lease with Landlord (or any person which, directly or indirectly, controls, is
controlled by, or is under common control with Landlord) and such default is not
remedied within the applicable grace period, if any, provided therefor under
such other lease,
then in any of said cases Landlord may give to Tenant a notice of intention to
end the Term at the expiration of five days from the date of the service of such
notice of intention, and upon the expiration of said five days this Lease,
whether or not the Term theretofore had commenced, shall terminate with the same
effect as if that day were the expiration date of this Lease, but Tenant shall
remain liable for damages as provided in Article 26.
ARTICLE 25 - Re-entry by Landlord
25.01. If Tenant defaults in the payment of any Fixed Rent or Additional
Charges, and such default continues for five days, or if this Lease terminates
as provided in Article 24, Landlord or Landlord's agents and employees may
immediately or at any time thereafter re-enter the Premises, or any part
thereof, either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
person therefrom, to the end that Landlord may have, hold and enjoy the
Premises. The word "re-enter," as used herein, is not restricted to its
technical legal meaning. If this Lease is terminated under the provisions of
Article 24, or if Landlord re-enters the Premises under the provisions of this
Article 25, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord the Fixed Rent and Additional Charges payable up to
the time of such termination of this Lease, or of such recovery of possession of
the Premises by Landlord, as the case may be, and shall also pay to Landlord
damages as provided in Article 26.
25.02. In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
25.03. If this Lease terminates under the provisions of Article 24, or if
Landlord re-enters the Premises under the provisions of this Article, or in the
event of the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant, Landlord shall be entitled to retain
all monies, if any, paid by Tenant to Landlord, whether as advance rent,
security or otherwise, but such monies shall be credited by Landlord against any
Fixed Rent or Additional Charges due from Tenant at the time of such termination
or re-entry or, at Landlord's option, against any damages payable by Tenant
under Article 26 or pursuant to law.
ARTICLE 26 - Damages
26.01. If this Lease is terminated under the provisions of Article 24, or
if Landlord re-enters the Premises under the provisions of Article 25. or in the
event of the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant, Tenant shall pay to Landlord as
damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the then
value of the excess, if any, of (i) the aggregate amount of the Fixed Rent and
the Additional Charges under Article 4 and Article 5 which would have been
payable by Tenant (conclusively presuming the average monthly Additional Charges
under Article 4 and Article 5 to be the same as were payable for the year, or if
less than 365 days have then elapsed since the Commencement Date, the partial
year, immediately preceding such termination or re-entry) for the period
commencing with such earlier termination of this Lease or the date of any such
re-entry, as the case may be, and ending with the date contemplated as the
expiration date hereof if this Lease had not so terminated or if Landlord had
not so re-entered the Premises, over (ii) the aggregate rental value of the
Premises for the same period, or
(b) sums equal to the Fixed Rent and the Additional Charges which would
have been payable by Tenant had this Lease not so terminated, or had Landlord
not so reentered the Premises, payable upon the due dates therefor specified
herein following such termination or such re-entry and until the date
contemplated as the expiration date hereof if this Lease had not so terminated
or if Landlord had not so re-entered the Premises; provided, however, that if
Landlord shall relet the Premises during said period, Landlord shall credit
Tenant with the net rents received by Landlord from such reletting, such net
rents to be determined by first deducting from the gross rents as and when
received by Landlord from such reletting the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Premises and in
securing possession thereof, as well as the expenses of reletting, including,
without limitation, altering and preparing the Premises for new tenants,
brokers' commissions, legal fees, and all other expenses properly chargeable
against the Premises and the rental therefrom, it being understood that any such
reletting may be for a period shorter or longer than what would have been the
remaining Term, but in no event shall Tenant be entitled to receive any excess
of such net rents over the sums payable by Tenant to Landlord hereunder, nor
shall Tenant be entitled in any suit for the collection of damages pursuant to
this subdivision to a credit in respect of any net rents from a reletting,
except to the extent that such net rents are actually received by Landlord. If
the Premises or any part thereof should be relet in combination with other
space, then proper apportionment on a square foot basis shall be made of the
rent received from such reletting and of the expenses of reletting.
Additionally, Landlord shall also be entitled to recover from Tenant the (i) the
unamortized cost of Landlord's Work (if any) and any transaction costs incurred
by Landlord in connection with the negotiation, preparation, operation,
interpretation and termination of this Lease, as of the time of termination ,
(amortized over the scheduled initial term of this Lease) and the unamortized
portion of real estate brokerage commissions paid on behalf of this Lease
(amortized over the scheduled initial term of this Lease).
If the Premises or any part thereof is or are relet by Landlord for what would
have been the unexpired portion of the Term, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Premises, or part thereof, so relet during the
term of the reletting. Landlord shall not be liable in any way whatsoever for
its failure or refusal to relet the Premises or any part thereof, or if the
Premises or any part thereof are relet, for its failure to collect the rent
under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant's liability for damages or otherwise
under this Lease.
26.02. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the Term would have expired if it had not been so terminated
under the provisions of Article 24, or under any provisions of law, or had
Landlord not re-entered the Premises. Nothing herein contained shall be
construed to limit or preclude recovery by Landlord against Tenant of any sums
or damages to which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the part
of Tenant. Nothing herein contained shall be construed to limit or prejudice the
right of Landlord to prove and obtain as damages by reason of the termination of
this Lease or re-entry on the Premises for the default of Tenant under this
Lease 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 than, equal to, or less
than any of the sums referred to in Section 26.01.
26.03. In addition, if this Lease is terminated under the provisions of
Article 24, or if Landlord re-enters the Premises under the provisions of
Article 25, Tenant agrees that:
(a) the Premises then shall be in the same condition as that in which
Tenant has agreed to surrender the same to Landlord at the expiration of the
Term;
(b) Tenant shall have performed prior to any such termination any covenant
of Tenant contained in this Lease for the making of any Alteration or for
restoring or rebuilding the Premises or the Building, or any part thereof; and
(c) for the breach of any covenant of Tenant set forth above in this
Section 26.03, Landlord shall be entitled immediately, without notice or other
action by Landlord, to recover, and Tenant shall pay, as and for liquidated
damages therefor, the reasonable cost of performing such covenant (as estimated
by an independent contractor selected by Landlord).
ARTICLE 27 - Affirmative Waivers
27.01. Tenant, on behalf of itself and any and all persons claiming through
or under Tenant, does hereby waive and surrender all right and privilege which
it, they or any of them might have under or by reason of any present or future
law, to redeem the Premises or to have a continuance of this Lease after being
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as provided in this Lease.
27.02. If Tenant is in arrears in payment of Fixed Rent or Additional
Charges, Tenant waives Tenant's right, if any, to designate the items to which
any payments made by Tenant are to be credited, and Landlord may apply any
payments made by Tenant to such items as Landlord sees fit, irrespective of and
notwithstanding any designation or request by Tenant as to the items to which
any such payments shall be credited.
27.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
including, without limitation, any claim of injury or damage, and any emergency
and other statutory remedy with respect thereto.
27.04. Tenant shall not interpose any counterclaim of any kind, other than
mandatory counterclaims which if not interposed will be forfeited, in any
summary proceeding commenced by Landlord to recover possession of the Premises
and shall not seek to consolidate such proceeding with any action which may have
been or will be brought by Tenant or any other person.
ARTICLE 28 - No Waivers
28.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent or
Additional Charges with knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.
ARTICLE 29 - Curing Tenant's Defaults
29.01. If Tenant defaults in the performance of any of Tenant's obligations
under this Lease beyond any applicable notice and grace periods, Landlord,
without thereby waiving such default, may (but shall not be obligated to)
perform the same for the account and at the expense of Tenant, without notice in
a case of emergency, and in any other case only if such default continues after
the expiration of 15 days from the date Landlord gives Tenant notice of the
default.
29.02. Bills for any expenses incurred by Landlord in connection with any
such performance by it for the account of Tenant, and bills for all costs,
expenses and disbursements, including reasonable counsel fees, involved in
collecting or endeavoring to collect the Fixed Rent or Additional Charges or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, including any cost, expense and disbursement involved in
instituting and prosecuting summary proceedings or in recovering possession of
the Premises after default by Tenant or upon the expiration or sooner
termination of this Lease, and interest on all sums advanced by Landlord under
this Section and/or Section 29.01 at the Lease Interest Rate may be sent by
Landlord to Tenant monthly, and such amounts shall be due and payable in
accordance with the terms of such bills.
ARTICLE 30 - Broker
30.01. Tenant represents that no broker except Newmark of Long Island
(herein collectively called the "Broker") was instrumental in bringing about or
consummating this Lease and that Tenant had no conversations or negotiations
with any broker except the Broker concerning the leasing of the Premises. Tenant
shall indemnify and hold harmless Landlord against and from any claims for any
brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, attorneys' fees and expenses, arising
out of any conversations or negotiations had by Tenant with any broker other
than the Broker. Landlord shall pay any brokerage commissions due the Broker as
per a separate agreement between Landlord and the Broker.
ARTICLE 31 - Notices
31.01. Any notice, consent, approval or other communication required or
permitted to be given, rendered or made by either party to the other shall be in
writing (whether or not so stated elsewhere in this Lease) and shall be deemed
to have been properly given, rendered or made only if either (a) sent by
registered or certified mail, return receipt requested, posted in a United
States post office station or letter box in the continental United States, (b)
hand delivered, or (c) delivered by recognized national overnight courier, in
any of which events addressed to the other party at the address hereinabove set
forth (except that after the Commencement Date, Tenant's address, unless Tenant
shall give notice to the contrary, shall be the Premises), and shall be deemed
to have been given, rendered or made either (i) on the first day after the day
so mailed, unless mailed outside of the State of New York, in which case it
shall be deemed to have been given, rendered or made on the third business day
after the day so mailed, or (ii) on the day received or delivery refused if
delivered by nationally recognized national courier or hand delivered. Either
party may, by notice as aforesaid, designate a different address or addresses
for notices, statements, demands, consents, approvals or other communications
intended for it. A duplicate original of any notice given to Landlord shall be
simultaneously and similarly sent by Tenant to the attention of Morton R. Ruden,
Esq., 19 Ludlow Road, Westport, Connecticut 06880, and a copy of any notice to
Tenant shall be simultaneously and similarly sent by Landlord to the attention
of: .
ARTICLE 32 - Estoppel Certificates
32.01. Each party shall, at any time and from time to time, if requested by
the other party with not less than 10 days' prior notice, execute and deliver to
the other 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 modifications), certifying the dates to
which the Fixed Rent and Additional Charges have been paid, stating whether or
not, to the best knowledge of the signer, the other party is in default in
performance of any of its obligations under this Lease, and, if so, specifying
each such default of which the signer shall have knowledge, and stating whether
or not, to the best knowledge of the signer, any event has occurred which with
the giving of notice or passage of time, or both, would constitute such a
default, and, if so, specifying each such event, it being intended that any such
statement delivered pursuant hereto shall be deemed a representation and
warranty to be relied upon by the party requesting the certificate and by others
with whom such party may be dealing, regardless of independent investigation.
Tenant also shall include in any such statement such other information
concerning this Lease as Landlord may reasonably request.
ARTICLE 33 - Execution and Delivery of Lease
33.01. Submission by Landlord of the within Lease for review and execution
by Tenant shall confer no rights nor impose any obligations on either party
unless and until both Landlord and Tenant shall have executed this Lease and
duplicate originals thereof shall have been delivered to the respective parties.
ARTICLE 34 - Recording of Lease
34.01. At the request of Landlord, Tenant shall promptly execute,
acknowledge and deliver to Landlord a memorandum in respect of this Lease and/or
any amendment or modification of this Lease sufficient for recording, setting
forth only the matters required to be set forth pursuant to Section 291 -c of
the New York Real Property Law as such section exists on the date of request.
Such memorandum shall not in any circumstance be deemed to change or otherwise
affect any of the terms of this Lease. Tenant shall not record this Lease or
said memorandum or any other document related hereto.
ARTICLE 35 - Parking
35.01. Landlord shall, without charge to Tenant (except as consequence of
the cost thereof being included in Operating Expenses), provide and maintain,
for the non-exclusive use of Tenant's employees and invitees, parking areas
sufficient to accommodate at least 40standard size automobiles in the area(s)
shown as "parking" on the plan attached hereto as Exhibit D. Landlord will not
police any of said parking areas and will not be responsible, nor shall there be
any reduction or abatement of rent, if such spaces are used by others or if, at
times, adequate parking is not available due to others parking in the parking
areas. In the event Landlord utilizes such parking areas for Landlord's
development purposes, Landlord will provide Tenant with substantially equivalent
parking facilities. If handicapped parking changes are required by virtue of
Tenant's use of the Premises, Landlord will cooperate with Tenant to modify
handicapped parking. However, any and all expenses or any delays occasioned by
such changes shall be at the sole cost and be the sole responsibility of Tenant
and there shall be no abatement or reduction of rent or other charges hereunder
by virtue of any costs or delays as a result thereof.
ARTICLE 36 - Environmental Compliance
36.01. Tenant assumes sole and full responsibility for compliance with all
applicable Federal, state and local environmental statutes, regulations and
ordinances (including licensing and permitting) (herein called the
"Environmental Laws") in respect of the Premises and agrees to indemnify,
defend, save and hold harmless Landlord and all Superior Lessors and Superior
Mortgagees, and its and their respective members, managers, partners, directors,
officers, agents and employees from and against any and all claims, demands,
losses and liability (including reasonable attorneys' fees) resulting from any
alleged or actual violation of Environmental Laws in respect of the Building or
the Project by Tenant or any of its subtenants or licensees or its or their
employees or contractors. Tenant assumes sole and full responsibility for all
present and future acts or omissions of Tenant or any of its subtenants or
licensees or its or their employees or contractors while at, near or on the
Project at the request or on behalf of Tenant and covenants and agrees to
indemnify, defend, save and hold harmless Landlord and all Superior Lessors and
Superior Mortgagees, and its and their respective partners, directors, officers,
agents and employees, from and against any and all claims, demands, losses, and
liability (including reasonable attorneys' fees) resulting from any alleged or
actual violation thereof, including, but not limited to, personal injury (and
death resulting therefrom), property damage, damage to natural resources, and
strict liability under Environmental Laws. The provisions of this Section 36.01
shall survive the expiration or termination of this Lease.
ARTICLE 37 - Signs
37.01. Tenant may not place signs anywhere in the Project, including on
the exterior of the Building, without the prior written consent of Landlord. All
signage is subject to Landlord's prior written approval of size, design
(including lettering and type) and color/ Subject to the foregoing, Tenant may
install its name on the door(s) to their office suite. Tenant will be identified
on any monument and interior building directory.
For exterior signage, and subject to the Landlord's approval, both parties
shall work with Tenant's architect to create mutually agreeable exterior suite
identification within the following parameters:
a. It must comply with local municipal codes and regulations.
b. It must fit within the esthetics of the Building.
c. It does not and will not limit Landlord's ability to install and
permit or have installed other exterior signage on the Building.
ARTICLE 38 - Approval Contingency
38.01. This Lease shall not be effective until and unless approved in
writing by Mortgagee. If Mortgagee disapproves this Lease, then this Lease shall
be deemed null and void and of no effect. Any such approval in accordance with
the provisions of this Article 38 shall be deemed retroactive to the
Commencement Date. Notwithstanding any provision to the contrary, if Tenant
occupies the Premises or causes any work to be performed thereon prior to
receipt of Mortgagee's approval or disapproval, then as between Tenant and
Landlord the provisions of this Lease shall be applicable and enforceable. If
Mortgagee does not give its approval or disapproval within 20 days after the
date hereof, either party may give notice of cancellation of this Lease to the
other after said 20-day period but prior to the giving of said approval, and if
either party gives such cancellation notice timely, this Lease shall be deemed
null and void and of no effect.
ARTICLE 39 - Relocation of Premises
39.01. Landlord may, at its option, before or after the Commencement Date,
elect by notice to Tenant to substitute for the Premises other equivalent space
in the Project (herein called the "Substitute Premises") designated by Landlord,
provided that the Substitute Premises contains at least the same usable square
foot area as the Premises. Landlord's notice shall be accompanied by a plan of
the Substitute Premises, and such notice or the plan shall set forth the usable
square foot area of the Substitute Premises. Tenant shall vacate and surrender
the Premises and shall occupy the Substitute Premises promptly (and, in any
event, not later than 15 days) after Landlord has substantially completed the
work to be performed by Landlord in the Substitute Premises pursuant to Section
39.02. Tenant shall pay the same Fixed Rent and Additional Charges under Article
4 and Article 5 with respect to the Substitute Premises as were payable with
respect to the Premises, without regard to the usable square foot area of the
Substitute Premises.
39.02. Tenant shall not be entitled to any compensation for any
inconvenience or interference with Tenant's business, nor to any abatement or
reduction of Fixed Rent or Additional Charges, but Landlord shall, at Landlord's
expense, do the following: (a) furnish and install in the Substitute Premises
fixtures, equipment, improvements and appurtenances at least equal in kind and
quality to those contained in the Premises at the time such notice of
substitution is given by Landlord, (b) provide to Tenant personnel to perform
under Tenant's direction the moving of Tenant's Property from the Premises to
the Substitute Premises, (c) promptly reimburse Tenant for Tenant's actual and
reasonable out-of-pocket costs incurred by Tenant in connection with the
relocation of any telephone or other communications equipment from the Premises
to the Substitute Premises, and (d) promptly reimburse Tenant for any other
actual and reasonable out-of-pocket costs incurred by Tenant in connection with
the Tenant's move from the Premises to the Substitute Premises provided such
costs are approved by Landlord in advance, which approval shall not be
unreasonably withheld or delayed. Tenant shall cooperate with Landlord so as to
facilitate the prompt completion by Landlord of its obligations under this
Section and the prompt surrender by Tenant of the Premises. Without limiting the
generality of the preceding sentence, Tenant shall provide to Landlord promptly
any approvals or instructions, and any plans and specifications or any other
information reasonably requested by Landlord.
39.03. From and after the date that Tenant actually vacates and surrenders
the Premises, this Lease (a) shall no longer apply to the Premises, except in
respect of obligations which accrued on or prior to such surrender date, and (b)
shall apply to the Substitute Premises as if the Substitute Premises had been
the space originally demised under this Lease.
ARTICLE 40 - Partnership or Multi-Person Tenant
40.01. If the original Tenant herein named is a partnership or limited
liability company (or is comprised of two or more persons, individually or as
co-partners of a partnership or members of a limited liability company) or if
Tenant's interest in this Lease is assigned to a partnership or limited
liability company (or to two or more persons, individually or as co-partners of
a partnership or members of a limited liability company), the following
provisions shall apply: (a) the liability of each of the persons at any time
comprising Tenant shall be joint and several, (b) each of the persons at any
time comprising Tenant shall be bound by (i) any written instrument executed by
Tenant or any successor Tenant changing, modifying, extending or discharging
this Lease, in whole or in part, or surrendering all or any part of the Premises
to Landlord, (ii) any Notices given by Tenant or by any of the persons
comprising Tenant, and (iii) any statement executed by Tenant or any of the
persons comprising Tenant, pursuant to Section 32.01, (c) any notices given to
Tenant or to any of such persons shall be binding on Tenant and all such
persons, (d) if Tenant admits new partners, or members, all of such new partners
or members, shall, by their admission to Tenant, be deemed to have assumed joint
and several liability for the performance of all of Tenant's obligations under
this Lease, (e) Tenant shall give prompt notice to Landlord of the admission of
any such new partners or members, and on demand of Landlord shall cause each
such new partner or member to execute and deliver to Landlord an agreement in
form satisfactory to Landlord wherein each such new partner or member assumes
joint and several liability for the performance of all of Tenant's obligations
under this Lease (but neither Landlord's failure to request any such agreement
nor the failure of any such new partner or member to execute or deliver any such
agreement to Landlord shall vitiate the provisions of clause (d) of this
Section), and (f) the death, adjudication of incompetency or withdrawal of an
individual comprising Tenant or of an individual partner or member shall not
relieve him or his personal representatives of any liability for the performance
of Tenant's obligations under this Lease.
ARTICLE 41 - Security Deposit
41.01. Tenant has deposited with Landlord the sum of $27,500.00 as security
for the faithful performance and observance by Tenant of the terms, covenants
and conditions of this Lease. It is agreed that in the event Tenant defaults in
respect of any of the terms, covenants and conditions of this Lease (and such
default continues beyond the expiration of any applicable grace period),
including, but not limited to, the payment of any of the Fixed Rent and
Additional Charges, Landlord may, but shall not be obligated to, use, apply, or
retain the whole or any part of the security so deposited to the extent required
for payment of the Fixed Rent or Additional Charges or any other sum as to which
Tenant is in default or for any sum which Landlord may expend or may be required
to expend by reason of Tenant's default, including but not limited, to any
damages or deficiency in reletting of the Premises (or any part thereof),
whether such damages or deficiency accrued before or after summary proceedings
or other reentry by Landlord. Tenant shall, upon demand, deposit with Landlord
the full amount so used, applied or retained in order that Landlord shall have
the full security deposit on hand at all times during the term of this Lease.
41.02. In the event that Tenant shall fully and faithfully comply with all
of the terms, covenants and conditions of this Lease, the security shall be
returned to Tenant within thirty (30) days after the date fixed as the end of
this Lease and after the later of delivery, of entire possession of the Premises
to Landlord in the conditions as then required by this Lease and after
compliance by Tenant with all of the terms and conditions of this Lease
(provided that Landlord may retain a reasonable amount thereof pending payment
of Additional Charges for Operating Expenses and Taxes for any final period of
this Lease).
41.03. Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber, moneys deposited herein as security, and that
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
41.04. The security shall be held in a separate non interest-bearing
account with a bank located in the State of New York and Landlord shall notify
Tenant of the location of such bank.
ARTICLE 42 - Miscellaneous
42.01 . Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement which may be made between the parties concurrently with the
execution and delivery of this Lease and which expressly refer to this Lease.
All understandings and agreements heretofore had between the parties are merged
in this Lease and any other written agreements made concurrently herewith, which
alone fully and completely express the agreement of the parties and which are
entered into after full investigation, neither party relying upon any statement
or representation not embodied in this Lease or any other written agreements
made concurrently herewith.
42.02. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing, refers expressly to this Lease and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of the abandonment is
sought. If Tenant shall at any time request Landlord to relet the Premises for
Tenant's account, Landlord or its agent is authorized to receive keys for such
purpose without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Landlord of any liability for loss or damage to any
of the Tenant's Property in connection with such reletting.
42.03. Except as otherwise expressly provided in this Lease, the
obligations of this Lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; provided, however, that (a) no violation of the
provisions of Article 8 shall operate to vest any rights in any successor or
assignee of Tenant and (b) the provisions of this Article shall not be construed
as modifying the conditions of limitation contained in Article 24. No provision
in this Lease shall be construed for the benefit of any third party except as
expressly provided herein.
42.04. The obligations of Tenant hereunder shall not be affected, impaired
or excused, nor shall Landlord have any liability to Tenant, because (a)
Landlord is unable to fulfill, or is delayed in fulfilling, any of its
obligations under this Lease by reason of strike, other labor trouble,
governmental preemption of priorities or other controls in connection with a
national or other public emergency, or shortage of fuel, supplies or labor, or
any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b) of any failure or defect in the supply, quantity or character of
electricity, steam, oil, gas or water furnished to the Premises, by reason of
any requirement, act or omission of the public utility or other entity serving
the Building with electric energy, steam, oil, gas or water, or for any other
reason whether similar or dissimilar, beyond Landlord's reasonable control.
42.05. All references in this Lease to the consent or approval of Landlord
shall be deemed to mean only the written consent or approval of Landlord, and no
consent or approval of Landlord shall be effective for any purpose unless such
consent or approval is set forth in a written instrument executed by Landlord.
If Tenant requests Landlord's consent and Landlord fails or refuses to give such
consent, Tenant shall not be entitled to any damages for any withholding by
Landlord of its consent, it being intended that Tenant's sole remedy shall be an
action for specific performance or injunction, and that such remedy shall be
available only in those cases where this Lease provides that Landlord may not
unreasonably withhold its consent or where as a matter of law Landlord may not
unreasonably withhold its consent.
42.06. If an excavation is made upon land adjacent to or under the
Building, or is authorized to be made, Tenant shall afford to the person causing
or authorized to cause such excavation, license to enter the Premises for the
purpose of performing such work as said person shall deem necessary or desirable
to preserve and protect the Building from injury or damage and to support the
same by proper foundations, without any claim for damages or liability against
Landlord and without reducing or otherwise affecting Tenant's obligations under
this Lease.
42.07. Tenant agrees that the exercise of its rights pursuant to the
provisions of Article 12 or of any other provisions of this Lease or the
Exhibits hereto shall not be done in a manner which would violate Landlord's
union contracts affecting the Project, nor create any work stoppage, picketing,
labor disruption or dispute or any interference with the business of Landlord or
any tenant or occupant of the Project.
42.08. Irrespective of the place of execution or performance, this Lease
shall be governed by and construed in accordance with the laws of the State of
New York. If any provision of this Lease or the application thereof to any
person or circumstances shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of that provision
to other persons or circumstances shall not be affected but rather shall be
enforced to the extent permitted by law. The table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. Each covenant, agreement, obligation or other
provision of this Lease on Landlord's or Tenant's part to be performed, shall be
deemed and construed as a separate and independent covenant of Landlord or
Tenant, as the case may be, not dependent on any other provision of this Lease.
All terms and words used in this Lease, regardless of the number or gender in
which they are used, shall be deemed to include any other number and any other
gender as the context may require.
42.09 Tenant warrants and represents that all financial statements and
materials furnished to Landlord by or on behalf of Tenant of any obligations of
Tenant are true, accurate and complete. Tenant shall furnish to Landlord upon
demand, in each instance prepared in accordance with generally accepted
accounting principles consistently applied and otherwise in form and substance
satisfactory to Landlord, annual financial statements of Tenant, including,
without limitation, statements of financial condition, income and cash flows, a
reconciliation of net worth, a listing of all contingent liabilities, notes to
financial statements, and any other information requested by Landlord, prepared
on a compilation basis by a certified public accountant acceptable to Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
LANDLORD:
50 ENGINEERS ROAD H. LLC
By:
a member
TENANT:
HIRSCH INTERNATIONAL CORP.
By:
Name:
Title:
Tenant's Federal Employer Identification Number
FORM OF ACKNOWLEDGMENT TO BE TAKEN WITHIN NEW YORK STATE
State of New York )
) ss.:
County of )
On the day of , in the year , before me personally appeared
, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
----------------------
Notary Public
FORM OF ACKNOWLEDGMENT TAKEN OUTSIDE NEW YORK STATE
State of )
) ss.:
County of )
On the day of , in the year , before me, the undersigned,
personally appeared , personally known to me or proved to me
on the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), 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, and that
such individual made such appearance before the undersigned in the (City) (Town)
of , State of .
-------------------------
Notary Public
EXHIBIT A
PLAN OF PREMISES
EXHIBIT B
SCHEDULE OF FIXED RENT
LEASE YEAR ONE
FIXED RENT
PER ANNUM $164,637.00 PAYABLE $13,719.75 PER MONTH
LEASE YEAR TWO
FIXED RENT
PER ANNUM $170,399.30 PAYABLE $14,199.94 PER MONTH
LEASE YEAR THREE
FIXED RENT
PER ANNUM $176,363.27 PAYABLE $14,696.94 PER MONTH
LEASE YEAR FOUR
FIXED RENT
PER ANNUM $182,535.98 PAYABLE $15,211.33 PER MONTH
LEASE YEAR FIVE
FIXED RENT
PER ANNUM $188,924.74 PAYABLE $15,743.73 PER MONTH
AS SET FORTH IN SECTION 1.04 OF THE LEASE
EXHIBIT C
LANDLORD'S WORK
I. LANDLORD'S WORK AT LANDLORD'S EXPENSE
Landlord will provide the following work to the Premises, Building and/or Land
at Landlord's Expense:
1. Exterior site work required by the approved site plan, including
landscaping, parking lot resurfacing and striping, new curbs and sidewalks
and new site lighting estimated at $100,000.00 .
2. Install three new windows on west side of building servicing the new office
area estimated at $6,000.00. 3. Power wash front exterior of the Building
and repair dent in metal panel above door (or at option of Landlord,
replace the panel).
II. LANDLORD'S WORK AT TENANT'S EXPENSE
Landlord will perform and manage the permitting and construction of the Premises
per the attached Floor Plan and following Work Letter. If the attached Floor
Plan conflicts with the written Work Letter, then the Floor Plan will govern.
Base building costs relating to the following shall be performed by Landlord at
Tenant's expense:
1. Demolition of space
2. Installation of demising walls if not existing
3. Introduction of sub-metered utilities to space envelope
4. Installation of exterior windows and skin improvements, if applicable
5. Installation or refurbishment of HVAC units with drops to office spaces
6. Installation of the following if any exist: common lobby, elevator, common
entrance and common restrooms.
7. Completion of Architectural and Engineering, including Construction
Drawings to complete the site, Premises and Building improvements to
complete the Premises
8. Completion and filing of all permit applications, including filing fees
9. Procuring the Building Permit
10. Procuring, with Tenant's assistance, the Certificate of Occupancy
LANDLORD shall furnish all labor, equipment and materials (except for specific
exclusions attached hereto) as required to construct tenant-demised premises
according to NYS Building Code and NYS Fire Prevention Code. All work to be
building standard and from building standard samples.
SPECIFICATIONS
1. PARTITIONS
A. Demising walls shall be constructed of 3 5/8" 25 gauge steel studs
with 2 layers of 5/8" fire code drywall (one each side) and insulation
required for fire rating from floor to underside of steel roof deck in
quantities as listed.
B. LANDLORD will erect lineal interior office partitions with 3 5/8" 25
gauge steel studs, 16" on center with a single layer of 5/8" drywall
on both sides to bottom of the hung acoustical ceiling grid. Joints to
be taped and spackled, three coats. Exterior corners shall be
furnished with metal corner beads. Drywall installation to be in
accordance with U.S. Gypsum specifications. Tenant shall be provided
with one linear foot of drywall partitioning for every 20 square feet
of usable office space rented.
C. Sound Baffles and Filler Panels
Where any type of partition intersects a window mullion, a filler
panel shall be provided. Sound baffles and filler panels shall have
the same sound transfer coefficient of material of which the partition
is constructed.
2. DOOR FRAMES AND HARDWARE
A. Ordinary Doors
Doors will be 1 3/4" Rotary Birch Veneer solid core wood doors
standard to building doors. Such doors shall be set in a knock down
hollow metal door buck equipped with one and one half pair 4 1/2" door
butts and include a passage set of standard building finish. All doors
shall be undercut as required.
B. Hardware
1. Door closers shall be provided for all doors opening on public
corridors and at other locations where closers are required by
building codes.
2. A heavy-duty floor or wall stop shall be provided for every door.
3. All lockset hardware shall be lever style Sargent 7 line or equal.
4. TENANT shall be provided with one lock set per entrance door.
Keying shall be supplied by TENANT.
C. Door Saddles and Reducing Strips
Door saddles or reducing strips shall be furnished between carpeted
and non-carpeted areas.
3. CEILINGS
A. Ceiling Heights
The ceiling heights throughout the entire office area shall be 8'-6"
from the finished floor or as high as possible due to constraints
caused by mechanical ductwork, piping or fixtures. Ceiling shall be
2'x4' non-directional fissured acoustical ceiling tile by Armstrong
with 15/16" hung grid system finished in standard white color.
4. FLOORING
LANDLORD will provide Tenant with the option of 1/8" vinyl composition tile
(Armstrong or equal) in standard colors or 22oz. Building Standard
Carpeting as manufactured by Shaw Industries in colors as selected from
samples provided by Landlord. A 4" cove vinyl wall base will be provided
throughout in manufacturer's standard colors.
5. WALL TREATMENT
A. Painting
1. Painting of all walls, vertical furring, non-acoustical ceilings,
doors, frames, and all metal surfaces not having a factory finish to
consist of one coat primer and two finish coats of paint, egg shell
finish (doors and trim may be in semi-gloss finish) in not more than 2
TENANT selected colors. Paint to be selected by TENANT from owner
supplied samples.
6. LIGHTING
A. Fixtures
1. Furnish recessed lighting fixtures with energy efficient rapid
start ballasts and an acrylic prismatic plastic diffuser where
required by design conditions, with a maximum of 1 per 85 square feet,
a 2'x4' fixture designed to contain (3) 20 watt fluorescent lamps will
be installed. Where air conditioning ducts or other obstructions will
not permit the use of standard depth fluorescent fixtures, a shallow
type fixture will be substituted so as to maintain adjacent ceiling
levels. The number of fixtures furnished and installed will be
adequate to furnish a lighting level of 50-foot candles in office and
work areas, and 40-foot candles in hallways and lavatories.
2. Miscellaneous fluorescent fixtures shall be provided, complete with
lamps, for such areas as mechanical rooms, bathrooms (if applicable)
and exits, in quantities to conform to building codes and/or good
practice.
3. Emergency and egress lighting shall be provided as required to
comply with all applicable codes.
B. Switches
All single poles switches, or 3-way switches and associated wiring
facilities required to service the lighting fixtures shall be provided in
locations and quantities shown. Breaker control shall be provided to
lighting fixtures except when otherwise directed by TENANT.
7. ELECTRICAL
A. Metering
If separate metering of electrical consumption by the TENANT is
required, Landlord shall furnish, install and connect all wiring,
cabinets, switches and sub-meter equipment in order to perform the
metering function by the Landlord/utility. Meter shall be located in
the building meter room or another room deemed necessary and
established by the LANDLORD.
B. Distribution System
1. Distribution panels for lighting and electrical equipment shall be
of the circuit breaker type including counter-pulsation equipment and shall
contain 20% spare capacity in each panel with space necessary for future
circuit breakers.
2. Electrical power and distribution panels shall be installed with
circuit breakers, safety switches, conduit, transformers and required
wiring facilities to such panel for TENANT's use in connection with its
special business machines, employee lunch room (if applicable) and other
special electrical requirements on approved plan. Landlord shall provide
electrical outlets within office space. One outlet for every 60 square feet
of useable space shall be provided in locations as required by Tenant or as
determined by best practice. Specific code required outlets will be located
and balance will be for Tenant's use.
3. All circuit wiring from the lighting and power panels to the
various outlets shall be as selected by LANDLORD as building standard and
in accordance with local electrical codes.
4. Electrical receptacles shall be circuited separately from the
lighting fixtures and in accordance with local codes but no more than ten
duplex receptacles shall be included on one circuit.
4. Low voltage wiring without conduits may be run in peripheral
enclosures and/or hung ceilings to the extent practicable and permitted by
local codes and Verizon.
5. LANDLORD shall provide (2) dedicated outlets and circuits in
locations as selected by TENANT for use by special office equipment as
applicable (i.e.: copiers, refrigerator, etc)
8. HEATING, VENTILATING and AIR CONDITIONING
A. Office Area Air Conditioning/Heating/Ventilating
1. Connection to HVAC units sized appropriately for the space
including all ductwork for complete distribution throughout premises.
2. Galvanized steel ductwork for air distribution including:
a. Supply ductwork, return plenum
b. Fresh air intake
c. Registers, grilles, diffusers and balancing dampers
d. Return air ductwork not used, ceiling plenum return system
utilized
e. All ductwork design and construction as per ASHRAE.
3. Provide exhaust sufficient to comply with code for Tenant bathrooms
(if applicable).
B. Design Criteria
1. Cooling: Maintain 78 degrees during the summer, maximum DB
temperature with a relative humidity of 50 percent and outside conditions
95 degrees with a prevailing wind velocity not exceeding 15 MPH.
2. Heating: Maintain 72 degrees during the winter, minimum temperature
with outside conditions of zero degrees and a prevailing wind velocity not
exceeding 15 MPH.
9. FIRE ALARM & SPRINKLER SYSTEM
A. Fire Alarm System
A code compliant fire alarm system complete with all devices and
remote annunciator panel shall be provided for typical office
occupancy. Any additional requirements due to special uses shall be
borne directly by Tenant.
B. Fire Sprinkler System
Fire sprinklers, if required by code shall be provided in accordance
with code for typical office occupancy. Any additional requirements
due to special uses shall be borne directly by the Tenant.
10. PLUMBING
A. All plumbing fixtures shall be included within the common area as
constructed by the Landlord. No provision for private facilities has
been included within the Tenant's demised premise.
11. ADDITIONAL WORK
A. Items included in specification
1. TENANT shall have the right to request additional work of the
LANDLORD, additional quantities or upgrades of fixtures or finish
materials such as are provided for in this work letter. LANDLORD
shall provide these as extras to be provided upon request, at
cost of the work plus 15% overhead, profit and general
conditions. Architectural, expediting or permitting costs
relating to such changes shall be further added if applicable.
Payment shall be due up possession of leased premises by TENANT
unless otherwise provided for in the lease.
2. LANDLORD's cost shall mean LANDLORD's contract or purchase price,
or where LANDLORD acts as contractor, LANDLORD's cost of labor
directly employed by LANDLORD and materials.
B. Approval of Costs
1. Unless expressly so authorized in writing by TENANT, LANDLORD
shall not proceed with any item of work or material at TENANT's
expense until TENANT has received and approved an estimate of the
cost thereof.
2. Landlord shall have the right to reject tenant requests for
additional work if LANDLORD determines such additional work will
unreasonably delay or complicate the construction in a material
manner.
10. OTHER
LANDLORD will make reasonable efforts to keep TENANT informed of construction
progress. LANDLORD shall not bear responsibility for decisions made on behalf of
TENANT when TENANT has failed to make timely approval decisions or selections on
TENANT option items as outlined herein. Furthermore, LANDLORD shall not be
expected to unreasonably delay or reschedule work in order to accommodate work
performed by TENANT's contractors.
EXCLUSIONS FROM STANDARD WORK LETTER
Items excluded from the work letter but available as an option to if approved by
Landlord.
- Telephone equipment or cabling. - Computer equipment or cabling.
- Installation of tenant supplied equipment.
- Signage (interior or exterior), other than code compliant.
- Special or upgraded lighting fixtures.
- Reception counter.
- Security or card access systems.
- Internal music systems.
- Upgraded wall and floor treatments.
- Specialized Carpet Patterns or Mosaic work.
- Upgraded ceiling systems and soffits.
- Furniture, built-in furniture systems or modular furniture or
associated wiring.
- Interior glass windows, door panes or similar.
- Upgraded lighting.
- Special, updated or repainted Warehouse flooring (if applicable).
- Special partitions, racking or shelving systems for storage rooms.
- Upgraded window treatments.
- Specialized HVAC equipment (i.e., for year round data room cooling).
- Exterior site work of any type. - Private bathrooms, showers, kitchens
or kitchenettes.
- Costs for architectural changes once plans are filed on behalf of
TENANT.
- Anything specifically requested by the TENANT.
EXHIBIT D
FORM OF SNDA FROM CURRENT SUPERIOR MORTGAGEE
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
WELLS FARGO BANK, NATIONAL ASSOCIATION
Real Estate Merchant Banking (AU #AU NO.)
555 Montgomery Street, 16th Floor
San Francisco, CA 94111
Attn: ___________________
Loan No. ____________
- ------------------------------------------------------------------------------
SUBORDINATION AGREEMENT; ACKNOWLEDGMENT OF LEASE ASSIGNMENT, ESTOPPEL,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT
(Lease To Deed of Trust)
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN
THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN
OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS SUBORDINATION AGREEMENT; ACKNOWLEDGMENT OF LEASE ASSIGNMENT, ESTOPPEL,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT ("Agreement") is made May 20, 2004 by
and between 50 Engineers Road H, LLC ("Owner"), Hirsch International, Inc.
("Lessee") and WELLS FARGO BANK, NATIONAL ASSOCIATION ("Lender").
R E C I T A L S
A. Pursuant to the terms and provisions of a lease dated DATE OF LEASE HERE
("Lease"), Owner, as "Lessor", granted to Lessee a leasehold estate in and
to a portion of the property described on Exhibit A attached hereto and
incorporated herein by this reference (which property, together with all
improvements now or hereafter located on the property, is defined as the
"Property").
B. Owner has executed a deed of trust with absolute assignment of leases and
rents, security agreement and fixture filing ("Deed of Trust") securing,
among other things, a promissory note ("Note") in the principal sum of
Seven Hundred Thirty Five Thousand and NO/100THS DOLLARS ($735,000.), dated
May 20, 2004, in favor of Lender, which Note is payable with interest and
upon the terms and conditions described therein ("Loan"). .
C. As a condition to making the Loan secured by the Deed of Trust, Lender
requires that the Deed of Trust be unconditionally and at all times remain
a lien on the Property, prior and superior to all the rights of Lessee
under the Lease and that the Lessee specifically and unconditionally
subordinate the Lease to the lien of the Deed of Trust.
D. Owner and Lessee have agreed to the subordination, attornment and other
agreements herein in favor of Lender.
NOW THEREFORE, for valuable consideration and to induce Lender to make the Loan,
Owner and Lessee hereby agree for the benefit of Lender as follows:
SUBORDINATION. Owner and Lessee hereby agree that:
Prior Lien. The Deed of Trust securing the Note in favor of Lender, and any
modifications, renewals or extensions thereof, shall unconditionally be and at
all times remain a lien on the Property prior and superior to the Lease;
Subordination. Lender would not make the Loan without this agreement to
subordinate; and
Whole Agreement. This Agreement shall be the whole agreement and only
agreement with regard to the subordination of the Lease to the lien of the Deed
of Trust and shall supersede and cancel, but only insofar as would affect the
priority between the Deed of Trust and the Lease, any prior agreements as to
such subordination, including, without limitation, those provisions, if any,
contained in the Lease which provide for the subordination of the Lease to a
deed or deeds of trust or to a mortgage or mortgages.
AND FURTHER, Lessee individually declares, agrees and acknowledges for the
benefit of Lender, that:
Use of Proceeds. Lender, in making disbursements pursuant to the Note, the
Deed of Trust or any loan agreements with respect to the Property, is under no
obligation or duty to, nor has Lender represented that it will, see to the
application of such proceeds by the person or persons to whom Lender disburses
such proceeds, and any application or use of such proceeds for purposes other
than those provided for in such agreement or agreements shall not defeat this
agreement to subordinate in whole or in part;
Waiver, Relinquishment and Subordination. Lessee intentionally and
unconditionally waives, relinquishes and subordinates all of Lessee's right,
title and interest in and to the Property to the lien of the Deed of Trust and
understands that in reliance upon, and in consideration of, this waiver,
relinquishment and subordination, specific loans and advances are being and will
be made by Lender and, as part and parcel thereof, specific monetary and other
obligations are being and will be entered into which would not be made or
entered into but for said reliance upon this waiver, relinquishment and
subordination.
ASSIGNMENT. Lessee acknowledges and consents to the assignment of the Lease
by Lessor in favor of Lender.
ESTOPPEL. Lessee acknowledges and represents that:
Lease Effective. The Lease has been duly executed and delivered by Lessee
and, subject to the terms and conditions thereof, the Lease is in full force and
effect, the obligations of Lessee thereunder are valid and binding and there
have been no modifications or additions to the Lease, written or oral;
No Default. To the best of Lessee's knowledge, as of the date hereof: (i)
there exists no breach, default, or event or condition which, with the giving of
notice or the passage of time or both, would constitute a breach or default
under the Lease; and (ii) there are no existing claims, defenses or offsets
against rental due or to become due under the Lease;
Entire Agreement. The Lease constitutes the entire agreement between Lessor
and Lessee with respect to the Property and Lessee claims no rights with respect
to the Property other than as set forth in the Lease; and
No Prepaid Rent. No deposits or prepayments of rent have been made in
connection with the Lease, except as follows: (if none, state "None") Deposit of
$27,500.00 .
ADDITIONAL AGREEMENTS. Lessee covenants and agrees that, during all such
times as Lender is the Beneficiary under the Deed of Trust:
Modification, Termination and Cancellation. Lessee will not consent to any
modification, amendment, termination or cancellation of the Lease (in whole or
in part) without Lender's prior written consent and will not make any payment to
Lessor in consideration of any modification, termination or cancellation of the
Lease (in whole or in part) without Lender's prior written consent;
Notice of Default. Lessee will notify Lender in writing concurrently with
any notice given to Lessor of any default by Lessor under the Lease, and Lessee
agrees that Lender has the right (but not the obligation) to cure any breach or
default specified in such notice within the time periods set forth below and
Lessee will not declare a default of the Lease, as to Lender, if Lender cures
such default within fifteen (15) days from and after the expiration of the time
period provided in the Lease for the cure thereof by Lessor; provided, however,
that if such default cannot with diligence be cured by Lender within such
fifteen (15) day period, the commencement of action by Lender within such
fifteen (15) day period to remedy the same shall be deemed sufficient so long as
Lender pursues such cure with diligence;
No Advance Rents. Lessee will make no payments or prepayments of rent more
than one (1) month in advance of the time when the same become due under the
Lease; and
Assignment of Rents. Upon receipt by Lessee of written notice from Lender
that Lender has elected to terminate the license granted to Lessor to collect
rents, as provided in the Deed of Trust, and directing the payment of rents by
Lessee to Lender, Lessee shall comply with such direction to pay and shall not
be required to determine whether Lessor is in default under the Loan and/or the
Deed of Trust.
ATTORNMENT. In the event of a foreclosure under the Deed of Trust, Lessee
agrees for the benefit of Lender (including for this purpose any transferee
of Lender or any transferee of Lessor's title in and to the Property by
Lender's exercise of the remedy of sale by foreclosure under the Deed of
Trust) as follows:
Payment of Rent. Lessee shall pay to Lender all rental payments required to
be made by Lessee pursuant to the terms of the Lease for the duration of the
term of the Lease;
Continuation of Performance. Lessee shall be bound to Lender in accordance
with all of the provisions of the Lease for the balance of the term thereof, and
Lessee hereby attorns to Lender as its landlord, such attornment to be effective
and self-operative without the execution of any further instrument immediately
upon Lender succeeding to Lessor's interest in the Lease and giving written
notice thereof to Lessee;
No Offset. Lender shall not be liable for, nor subject to, any offsets or
defenses which Lessee may have by reason of any act or omission of Lessor under
the Lease, nor for the return of any sums which Lessee may have paid to Lessor
under the Lease as and for security deposits, advance rentals or otherwise,
except to the extent that such sums are actually delivered by Lessor to Lender;
and
Subsequent Transfer. If Lender, by succeeding to the interest of Lessor
under the Lease, should become obligated to perform the covenants of Lessor
thereunder, then, upon any further transfer of Lessor's interest by Lender, all
of such obligations shall terminate as to Lender.
NON-DISTURBANCE. In the event of a foreclosure under the Deed of Trust, so
long as there shall then exist no breach, default, or event of default on the
part of Lessee under the Lease, Lender agrees for itself and its successors and
assigns that the leasehold interest of Lessee under the Lease shall not be
extinguished or terminated by reason of such foreclosure, but rather the Lease
shall continue in full force and effect and Lender shall recognize and accept
Lessee as tenant under the Lease subject to the terms and provisions of the
Lease except as modified by this Agreement; provided, however, that Lessee and
Lender agree that the following provisions of the Lease (if any) shall not be
binding on Lender: any option to purchase with respect to the Property; any
right of first refusal with respect to the Property; any provision regarding the
use of insurance proceeds or condemnation proceeds with respect to the Property
which is inconsistent with the terms of the Deed of Trust.
MISCELLANEOUS.
Heirs, Successors, Assigns and Transferees. The covenants herein shall be
binding upon, and inure to the benefit of, the heirs, successors and assigns of
the parties hereto; and
Notices. All notices or other communications required or permitted to be
given pursuant to the provisions hereof shall be deemed served upon delivery or,
if mailed, upon the first to occur of receipt or the expiration of three (3)
days after deposit in United States Postal Service, certified mail, postage
prepaid and addressed to the address of Lessee or Lender appearing below:
"OWNER" "LENDER"
50 Engineers Road H, LLC WELLS FARGO BANK, NATIONAL ASSOCIATION
STREET ADDRESS Real Estate Merchant Banking (AU #AU NO.)
CITY, STATE ZIP 40 West 57th St, Floor 21
New York, NY 10019
Attn: _______________________________--
Loan No. ______________
"LESSEE"
NAME OF LESSEE HERE
LESSEE'S ADDRESS (STACKED) HERE
provided, however, any party shall have the right to change its address for
notice hereunder by the giving of written notice thereof to the other party
in the manner set forth in this Agreement; and
Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute and be construed as one and the same instrument; and
Remedies Cumulative. All rights of Lender herein to collect rents on behalf
of Lessor under the Lease are cumulative and shall be in addition to any and all
other rights and remedies provided by law and by other agreements between Lender
and Lessor or others; and
Paragraph Headings. Paragraph headings in this Agreement are for
convenience only and are not to be construed as part of this Agreement or in any
way limiting or applying the provisions hereof.
INCORPORATION. Exhibit A and Lease Guarantor's Consent are attached hereto and
incorporated herein by this reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH ALLOWS
THE PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A
LOAN A PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN
IMPROVEMENT OF THE LAND.
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS AGREEMENT, THE PARTIES
CONSULT WITH THEIR ATTORNEYS WITH RESPECT HERETO.
"OWNER"
50 Engineers Road H, LLC
By:____________________________________________
Its:_____________________________________________
"LENDER"
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:____________________________________________
Signee's Name
Its: Signee's Title
"LESSEE"
NAME OF LESSEE HERE
LESSEE SIGNATURE BLOCK HERE
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
LEASE GUARANTOR'S CONSENT
The undersigned ("Lease Guarantor") consents to the foregoing Subordination
Agreement; Acknowledgment of Lease Assignment, Estoppel, Attornment and
Non-Disturbance Agreement and the transactions contemplated thereby and
reaffirms its obligations under the lease guaranty ("Lease Guaranty") dated DATE
OF LEASE GUARANTY HERE. Lease Guarantor further reaffirms that its obligations
under the Lease Guaranty are separate and distinct from Lessee's obligations.
AGREED:
Dated as of: DATE OF DOCUMENTS "LEASE GUARANTOR"
LEASE GUARANTOR BLOCK HERE
EXHIBIT A
DESCRIPTION OF PROPERTY
EXHIBIT A to Subordination Agreement; Acknowledgment of Lease Assignment,
Estoppel, Attornment and Non-Disturbance Agreement dated as of DATE OF
DOCUMENTS, executed by 50 Engineers Road H, LLC, as "Owner", NAME OF LESSEE
HERE, as "Lessee", and WELLS FARGO BANK, NATIONAL ASSOCIATION, as "Lender".
All that certain real property located in the County of Suffolk, State of New
York, described as follows:
INSERT PROPERTY DESCRIPTION
APN
STATE OF New York
COUNTY OF Suffolk SS.
On this ___ day of ________________ , 20__ , before me, ______________________ a
Notary Public in and for the State of California, personally appeared
__________________________ personally known to me (or proved on the basis of
satisfactory evidence) to be the person(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 authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal
Signature
--------------------------------------------------------
My commission expires
--------------------------------------------
EXHIBIT E
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors and elevators
servicing the Building are limited to ingress to and egress from such tenant's
premises for the tenant and its employees, licensees and invitees, and no tenant
shall use, or permit the use of, the entrances, corridors or elevators for any
other purpose. No tenant shall invite to the tenant's premises, or permit the
visit of, persons in such numbers or under such conditions as to interfere with
the use and enjoyment of any of the plazas, entrances, corridor, elevators and
other facilities of the Building by any other tenants. Fire exits and stairways
are for emergency use only, and they shall not be used for any other purpose by
the tenants, their employees, licensees or invitees. No tenant shall encumber or
obstruct, or permit the encumbrance or obstruction of any of the sidewalks,
plazas, entrances, corridors, elevators, fire exits or stairways of the
Building. Landlord reserves the right to control and operate the public portions
of the Building and the public facilities, as well as facilities furnished for
the common use of the tenants, in such manner as it in its reasonable judgment
deems best for the benefit of the tenants generally.
2. Landlord may refuse admission to the Building outside of Business Hours
on Business Days (as such terms are defined in the lease to which this Exhibit
is attached) to any person not known to the security person in charge or not
having a pass issued by Landlord or the tenant whose premises are to be entered
or not otherwise properly identified, and Landlord may require all persons
admitted to or leaving the Building outside of Business Hours on Business Days
to provide appropriate identification. Landlord will supply identification cards
and be reimbursed by Tenant at Landlord's cost plus 5%. Tenant shall be
responsible for all persons for whom it issues any such pass and shall be liable
to Landlord for all acts or omissions of such persons. Tenant shall promptly
notify Landlord in writing of any lost identification cards and will reimburse
Landlord at cost plus 5% for replacement of identification cards. Any person
whose presence in the Building at any time shall, in the judgment of Landlord,
be prejudicial to the safety, character or reputation of the Building or of its
tenants may be denied access to the Building or may be ejected therefrom. During
any invasion, riot, public excitement or other commotion, Landlord may prevent
all access to the Building by closing the doors or otherwise for the safety of
the tenants and protection of property in the Building.
3. No tenant shall obtain or accept for use in its premises towel,
barbering, bootblacking, floor polishing, cleaning or other similar services
from any persons reasonably prohibited by Landlord in writing from furnishing
such services. Such services shall be furnished only at such hours, and under
such reasonable regulations, as may be fixed by Landlord from time to time.
4. The cost of repairing any damage to the public portions of the Building
or the public facilities or to any facilities used in common with other tenants,
caused by a tenant or its employees, agents, contractors, licensees or invitees,
shall be paid by such tenant.
5. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens which are different from
the standards adopted by Landlord for the Building shall be attached to or hung
in, or used in connection with, any exterior window or door of the premises of
any tenant, without the prior written consent of Landlord. Such curtains,
blinds, shades or screens must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
6. No lettering, sign, advertisement, notice or object shall be displayed
in or on the exterior windows or doors, or on the outside of any tenant's
premises, or at any point inside any tenant's premises where the same might be
visible outside of such premises, without the prior written consent of Landlord.
In the event of the violation of the foregoing by any tenant, Landlord may
remove the same without any liability, and may charge the expense incurred in
such removal to the tenant violating this rule. Interior signs, elevator cab
designations and lettering on doors and the Building directory shall, if and
when approved by Landlord, be inscribed, painted or affixed for each tenant by
Landlord at the expense of such tenant, and shall be of a size, color and style
acceptable to Landlord.
7. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window sills or on the
peripheral air conditioning enclosures, if any.
8. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
9. No noise, including, but not limited to, music or the playing of musical
instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted in the premises of
any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any other space in the Building.
10. Additional locks or bolts of any kind which shall not be operable by
the Grand Master Key for the Building shall not be placed upon any of the doors
or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said Grand Master
Key. Additional keys for a tenant's premises and toilet rooms shall be procured
only from Landlord who may make a reasonable charge therefor. Each tenant shall,
upon the termination of its tenancy, turn over to Landlord 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 furnished by Landlord, such
tenant shall pay to Landlord the cost thereof.
11. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators, and in such
manner as Landlord or its agent may determine from time to time. The persons
employed to move safes and other heavy objects shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a Master Rigger's license.
Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All labor and
engineering costs incurred by Landlord in connection with any moving specified
in this rule, including a reasonable charge for overhead and profit, shall be
paid by tenant to Landlord, on demand.
12. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or the lease of which
this Exhibit is a part. Landlord may require any person leaving the Building
with any package or other object or matter to submit a pass, listing such
package or object or matter, from the tenant from whose premises the package or
object or matter is being removed, but the establishment and enlargement of such
requirement shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of such tenant.
Landlord shall in no way be liable to any tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the premises
or the Building under the provisions of this Rule or of Rule 2 hereof.
13. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
storage, manufacture, or sale of liquor, narcotics, dope, tobacco in any form,
or as a barber, beauty or manicure shop, or as a school. No tenant shall use or
permit its premises or any part thereof to be used for manufacturing or the sale
at retail or auction of merchandise, goods or property of any kind.
14. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's reasonable judgment, tends
to impair the reputation of the Building or its desirability as a building for
others, and upon written notice from Landlord, such tenant shall refrain from
and discontinue such advertising or identifying sign.
15. Landlord shall have the right to prescribe the weight and position of
safes and other objects of excessive weight, and no safe or other object whose
weight exceeds the lawful load for the area upon which it would stand shall be
brought into or kept upon any tenant's premises. If, in the judgment of
Landlord, it is necessary to distribute the concentrated weight of any heavy
object, the work involved in such distribution shall be done at the expense of
the tenant and in such manner as Landlord shall determine.
16. No machinery or mechanical equipment other than ordinary portable
business machines may be installed or operated in any tenant's premises without
Landlord's prior written consent which consent shall not be unreasonably
withheld or delayed, and in no case (even where the same are of a type so
excepted or as so consented to by Landlord) shall any machines or mechanical
equipment be so placed or operated as to disturb other tenants; but machines and
mechanical equipment which may be permitted to be installed and used in a
tenant's premises shall be so equipped, installed and maintained by such tenant
as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
17. Landlord, its contractors, and their respective employees, shall have
the right to use, without charge therefor, all light, power and water in the
premises of any tenant while cleaning or making repairs or alterations in the
premises of such tenant.
18. No premises of any tenant shall be used for lodging or sleeping or for
any immoral or illegal purpose.
19. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
20. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
21. No tenant shall cause or permit any unusual or objectionable odors to
emanate from its premises which would annoy other tenants or create a public or
private nuisance. No cooking shall be done in the premises of any tenant except
as is expressly permitted in such tenant's lease.
22. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, ventilating, air conditioning, cleaning or other servicing of
the Building or the premises, or the use or enjoyment by any other tenant of any
other premises, nor shall there be installed by any tenant any ventilating,
air-conditioning, electrical or other equipment of any kind which, in the
reasonable judgment of Landlord, might cause any such impairment or
interference.
23. No acids, vapors or other materials shall be discharged or permitted to
be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenant who, or
whose contractors, employees, agents, visitors or licensees shall have, caused
the same. Any cuspidors or containers or receptacles used as such in the
premises of any tenant or for garbage or similar refuse, shall be emptied, cared
for and cleaned by and at the expense of such tenant.
24. All entrance doors in each tenant's premises shall be left locked and
all windows shall be left closed by the tenant when the tenant's premises are
not in use. Entrance doors shall not be left open at any time. Each tenant,
before closing and leaving its premises at any time, shall turn out all lights.
25. Hand trucks not equipped with rubber tires and side guards shall not be
used within the Building.
26. All windows in each tenant's premises shall be kept closed, and all
blinds therein above the ground floor shall be lowered as reasonably required
because of the position of the sun, during the operation of the Building
air-conditioning system to cool or ventilate the tenant's premises. If Landlord
shall elect to install any energy saving film on the windows of any premises or
to install energy saving windows in place of the present windows, each tenant
shall cooperate with the reasonable requirements of Landlord in connection with
such installation and thereafter the maintenance and replacement of the film
and/or windows and permit Landlord to have access to the tenant's premises at
reasonable times during Business Hours to perform such work.
27. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its reasonable
judgment, it deems it necessary, desirable or proper for its best interest and
for the best interests of the tenants generally, and no alteration or waiver of
any rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. Landlord shall not be responsible to any
tenant for the nonobservance or violation by any other tenant of any of the
rules and regulations at any time prescribed for the Building.
EXHIBIT F
PARKING AREA
EXHIBIT G
OPTION TO RENEW
RENEWAL OPTION
As long as Tenant is not in default in the performance of its covenants under
this lease, beyond all applicable notice and cure periods, at the time of the
giving of notice and of the commencement of the renewal term, Tenant is hereby
granted one option to renew the term of this lease for a period of FIVE (5)
additional years (the "Renewal Term"), to commence at the expiration of the
initial term of this lease. Tenant shall exercise the option to renew by
delivering written notice of such election to Landlord no later than six months
prior to the expiration of the initial term of this lease, TIME BEING OF THE
ESSENCE THEREFOR. The renewal of this lease shall be upon the same terms and
conditions of this lease, except (a) the annual Fixed Rent during the Renewal
Term shall be the Fixed Rent for the last year of the original term of this
Lease, plus three and one half (3 1/2%) per cent, and which Fixed Rent shall
increased by three and one half (3 1/2%) percent on each annual anniversary of
the commencement date of the Renewal Term, (b) For purposes of the Renewal Term,
"Tax Year" shall mean the period of 12 calendar months beginning on January 1 of
the year in which the Renewal Term commences, and each succeeding 12 month
period thereafter and the term "Base Tax Year" for each Renewal Term shall mean
the First Tax Year of the particular Renewal Term. Tenant shall have no option
to renew this lease beyond the expiration of the Renewal Term, and (c) the
leasehold improvements will be provided in their then existing condition (on an
"as is" basis) at the time the Renewal Term commences with no allowance or other
payment to or for Tenant.