Exhibit 10.88
AGREEMENT OF LEASE
XXXX BUILDING ASSOCIATES L.L.C., Landlord
and
AROTECH CORPORATION, Tenant
Premises: Xxx Xxxx Xxxxxxxx - Xxxxx 000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Date: As of March 22, 2004
LEASE made as of the 22nd day of March, 2004, between XXXX BUILDING ASSOCIATES
L.L.C., a New York limited liability company, with an address at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereinafter referred to as "Landlord", and
AROTECH CORPORATION, a Delaware corporation, with an address at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereinafter referred to as "Tenant".
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord those
certain premises known as Suites 310, described on Exhibit A annexed hereto and
made part hereof (said premises are hereinafter referred to as the "demised
premises" or the "premises"), in the building known as 000 Xxxx 00xx Xxxxxx
("the building"), in the County of New York, City of New York, for a term to
commence on the 15th day of April, 2004, and to expire on the 30th day of June,
2009, or until such term shall sooner end as herein provided, both dates
inclusive, upon the terms and conditions hereinafter provided.
Landlord and Tenant covenant and agree:
1. PURPOSE
Tenant shall use and occupy the demised premises only for general and
executive offices relating to Tenant's technology business, and for no other
purpose. Without limiting the generality of the foregoing, it is expressly
understood that no portion of the demised premises shall be used as, by or for
(a) retail operations of any retail or branch bank, trust company, savings bank,
industrial bank, savings and loan association, credit union or personal loan
operation, or (b) a public stenographer or typist, (c) xxxxxx shop, beauty shop,
beauty parlor or shop, (d) telephone or telegraph agency, (e) telephone or
secretarial service, (f) messenger service, (g) travel or tourist agency, (h)
employment agency, (i) restaurant or bar, (j) commercial document reproduction
or offset printing service, (k) public vending machines, (l) retail, wholesale
or discount shop for sale of books, magazines, audio or video tapes, CD ROM, DVD
ROM or other devices for the recording or transmitting of audio or visual
signals, images, music or speech, electronic equipment and accessories or any
other merchandise, (m) retail service shop, (n) labor union, (o) school or
classroom, (p) governmental or quasi-governmental bureau, department or agency,
including an autonomous governmental corporation, embassy or consular office of
any country or other quasi-autonomous or sovereign organization, (q) an
advertising agency, (r) a firm whose principal business is real estate
brokerage, (s) a company engaged in the business of renting office or desk space
or (t) any person, organization, association, corporation, company, partnership
entity or other agency immune from service or suit in the courts of the State of
New York or the assets of which may be exempt from execution by Landlord in any
action for damages. Tenant shall not affix any sign to any window or exterior
surface of the demised premises nor install or place any sign within the demised
premises that may be seen from the outside.
2. RENT
Tenant agrees to pay each of the types of rent set forth in this
Article 2, as herein provided, at the office of Landlord or such other place as
Landlord may designate, payable in United States legal tender by good and
sufficient check drawn on a bank having a branch in the Borough of Manhattan,
City of New York, and without any notice (except as specifically set forth
herein), set off or deduction whatsoever. Any sum other than fixed annual rent
payable under this lease shall be deemed additional rent and due on demand
unless otherwise specifically provided. Landlord shall have the same rights and
remedies hereunder with respect to Tenant's non-payment of additional rent as it
has with respect to Tenant's non-payment of fixed annual rent.
A. Fixed Annual Rent: There is herein reserved to Landlord for the
entire term of this lease fixed annual rent equal to the aggregate amount of the
sums hereinafter set forth. Fixed annual rent shall be paid in advance as
follows: Commencing on April 15, 2004, and on the first day of each month
thereafter throughout the term of this lease, Tenant shall pay to Landlord,
without notice, deduction, set off or reduction (except as specifically set
forth herein), monthly payments of fixed annual rent equal to one-twelfth
(1/12th) of each of the following annual amount (except that the first month and
a half of fixed annual rent (including electricity), in the amount of $4,045.02,
is being paid upon the execution hereof):
April 15, 2004 through April 30, 2005: Forty-Three Thousand
Two Hundred and 00/100 ($43,200.00) Dollars per annum
($3,600.00 per month);
May 1, 2005 through April 30, 2006: Forty-Four Thousand Six
Hundred Ninety-Six and 00/100 ($44,696.00) Dollars per annum
($3,708.00 per month);
May 1, 2006 through April 30, 2007: Forty-Five Thousand Eight
Hundred Thirty and 88/100 ($45,830.88) Dollars per annum
($3,819.24 per month);
May 1, 2007 through April 30, 2008: Forty-Seven Thousand Two
Hundred Five and 81/100 ($47,205.81) Dollars per annum
($3,933.82) per month); and
May 1, 2008 through June 30, 2009: Forty-Eight Thousand Six
Hundred Twenty-One and 98/100 ($48,621.98) Dollars per annum
($4,051.83 per month).
If and so long as Tenant is not in default of any obligation on its
part to be performed hereunder, Tenant shall receive a rent credit of Ten
Thousand Eight Hundred and 00/100 ($10,800.00) Dollars, to be applied in three
(3) equal monthly installments of Three Thousand Six Hundred and 00/100
($3,600.00) Dollars each against the third, fifteenth and twenty-eighth monthly
installments of fixed annual rent (without electricity) payable hereunder (i.e.
June, 2004; May, 2005; and May, 2006).
B. Tax Escalation: Tenant shall pay to Landlord, as additional rent,
tax escalation in accordance with this paragraph B:
(i) Definitions: For the purpose of this Article, the following
definitions shall apply:
(a) The term "base tax year" as hereinafter set forth for the
determination of real estate tax escalation, shall mean the
New York City real estate tax year commencing July 1, 2004 and
ending June 30, 2005.
(b) The term "The Percentage", for purposes of computing tax
escalation, shall mean .227 percent (.227%).
(c) The term "the building project" shall mean the aggregate
combined parcel of land on a portion on which the building is
constructed and the building.
(d) The term "comparative year" shall mean the twelve (12)
months following the base tax year, and each subsequent period
of twelve (12) months (or such other period of twelve (12)
months occurring during the term of this lease as hereafter
may be duly adopted as the tax year for real estate tax
purposes by the City of New York).
(e) The term "real estate taxes" shall mean the total of all
taxes and special or other assessments levied, assessed or
imposed at any time by any governmental authority upon or
against the building project, and also any tax or assessment
levied, assessed or imposed at any time by any governmental
authority in connection with the receipt of income or rents
from said building project to the extent that same shall be in
lieu of all or a portion of any of the aforesaid taxes or
assessments, or additions or increases thereof, upon or
against said building project. If, due to a future change in
the method of taxation or in the taxing authority, or for any
other reason, a franchise, income, transit, profit or other
tax or governmental imposition, however designated, shall be
levied against landlord in substitution in whole or in part
for the real estate taxes, or in lieu of additions to or
increases of said real estate taxes, then such franchise,
income, transit, profit or other tax or governmental
imposition shall be deemed to be included within the
definition of "real estate taxes" for the purposes hereof. As
to special assessments which are payable over a period of time
extending beyond the term of this lease, only a pro rata
portion thereof covering the portion of the term of this lease
unexpired at the time of the imposition of such assessment,
shall be included in "real estate taxes." If by law, any
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assessment may be paid in installments, then, for the purposes
hereof (a) such assessment shall be deemed to have been
payable in the maximum number of installments permitted by law
and (b) there shall be included in real estate taxes, for each
comparative year in which such installments may be paid, the
installments of such assessment so becoming payable during
such comparative year, together with interest payable during
such comparative year.
(f) Where more than one assessment is imposed by the City of
New York for any tax year, whether denominated an "actual
assessment" or "transitional assessment" or otherwise, then
the phrases herein "assessed value" and "assessments" shall
mean whichever of the actual, transitional or other assessment
is designated by the City of New York as the taxable
assessment for that tax year.
(g) The phrase "real estate taxes payable during the base tax
year" shall mean that amount obtained by multiplying the
assessed value of the land and buildings of the building
project for the base tax year by the tax rate for the base tax
year for each $100 of such assessed value.
(ii) (a) In the event that the real estate taxes payable for any
comparative year shall exceed the amount of the real estate
taxes payable during the base tax year, Tenant shall pay to
Landlord, as additional rent for such comparative year, an
amount equal to The Percentage of the excess. Before or after
the start of each comparative year, Landlord shall furnish to
Tenant a statement of the real estate taxes payable for such
comparative year, and a statement of the real estate taxes
payable during the base tax year. If the real estate taxes
payable for such comparative year exceed the real estate taxes
payable during the base tax year, additional rent for such
comparative year, in an amount equal to The Percentage of the
excess, shall be due from Tenant to Landlord, and such
additional rent shall be payable by Tenant to Landlord within
ten (10) days after receipt of the aforesaid statement. The
benefit of any discount for any earlier payment or prepayment
of real estate taxes shall accrue solely to the benefit of
Landlord, and such discount shall not be subtracted from the
real estate taxes payable for any comparative year.
Additionally, Tenant shall pay to Landlord, on
demand, a sum equal to The Percentage of any business
improvement district assessment payable by the building
project.
(b) Should the real estate taxes payable during the base tax
year be reduced by final determination of legal proceedings,
settlement or otherwise, then, the real estate taxes payable
during the base tax year shall be correspondingly revised, the
additional rent theretofore paid or payable hereunder for all
comparative years shall be recomputed on the basis of such
reduction, and Tenant shall pay to Landlord as additional
rent, within ten (10) days after being billed therefor, any
deficiency between the amount of such additional rent as
theretofore computed and the amount thereof due as the result
of such recomputations. Should the real estate taxes payable
during the base tax year be increased by such final
determination of legal proceedings, settlement or otherwise,
then appropriate recomputation and adjustment also shall be
made.
(c) As long as Tenant is a tenant and is not in default of any
material obligation hereunder, if Tenant shall have made a
payment of additional rent under this paragraph, Landlord
shall receive a refund of any portion of the real estate taxes
payable for any comparative year after the base tax year on
which such payment of additional rent shall have been based,
as a result of a reduction of such real estate taxes by final
determination of legal proceedings, settlement or otherwise,
Landlord shall promptly after receiving the refund pay to
Tenant The Percentage of the refund less The Percentage of
expenses (including attorneys' and appraisers' fees) incurred
by Landlord in connection with any such application or
proceeding. If prior to the payment of taxes for any
comparative year, Landlord shall have obtained a reduction of
that comparative year's assessed valuation of the building
project, and therefore of said taxes, then the term "real
estate taxes" for that comparative year shall be deemed to
include the amount of Landlord's expenses in obtaining such
reduction in assessed valuation, including attorneys' and
appraisers' fees.
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(d) The statement of the real estate taxes to be furnished by
Landlord as provided above shall be certified by Landlord and
shall constitute a final determination as between Landlord and
Tenant of the real estate taxes for the Periods represented
thereby, unless Tenant within thirty (30) days after they are
furnished shall give a written notice to Landlord that it
disputes their accuracy or their appropriateness, which notice
shall specify the particular respects in which the statement
is inaccurate or inappropriate. If Tenant shall so dispute
said statement then, pending the resolution of such dispute,
Tenant shall pay the additional rent to Landlord in accordance
with the statement furnished by Landlord.
(e) In no event shall the fixed annual rent under this lease
(exclusive of the additional rents under this Article) be
reduced by virtue of this Article.
(f) If the commencement date of the term of this lease is not
the first day of the first comparative year, then the
additional rent due hereunder for such first comparative year
shall be a proportionate share of said additional rent for the
entire comparative year, said proportionate share to be based
upon the length of time that the lease term will be in
existence during such first comparative year. Upon the date of
any expiration or termination of this lease (except
termination because of Tenant's default) whether the same be
the date hereinabove set forth for the expiration of the term
or any prior or subsequent date, a proportionate share of said
additional rent for the comparative year during which such
expiration or termination occurs shall immediately become due
and payable by Tenant to Landlord, if it was not theretofore
already billed and paid. The said proportionate share shall be
based upon the length of time that this lease shall have been
in existence during such comparative year. Landlord shall
promptly cause statements of said additional rent for that
comparative year to be prepared and furnished to Tenant.
Landlord and Tenant shall thereupon make appropriate
adjustments of amounts then owing.
(g) Landlord's and Tenant's obligations to make the
adjustments referred to in subdivision (f) above shall survive
any expiration or termination of this lease.
(h) Any delay or failure of Landlord in billing any tax
escalation hereinabove provided shall not constitute a waiver
of or in any way impair the continuing obligation of Tenant to
pay such tax escalation hereunder.
C. Failure to Xxxx: Landlord's failure to xxxx on a timely basis all or
any portion of any amount payable pursuant to this lease for any period during
the term hereof shall neither constitute a waiver of Landlord's right to
ultimately collect such amount or to xxxx Tenant at any subsequent time
retroactively for the entire amount so un-billed. Landlord's failure to render
an Escalation Statement with respect to any comparative year shall not prejudice
Landlord's right to thereafter render an Escalation Statement with respect
thereto or with respect to any subsequent comparative year. Tenant's obligation
to pay any fixed annual rent and additional rent shall survive the expiration or
earlier termination of this lease.
D. No Right to Apply Security: Tenant shall not have the right to apply
any security deposited to assure Tenant's faithful performance of Tenant's
obligation hereunder to the payment of any installment of fixed annual rent or
additional rent.
E. No Reduction in Fixed Annual Rent: In no event shall the fixed
annual rent under this lease be reduced by virtue of any decrease in the amount
of any additional rent payment under this Article or any other provision of this
lease. If Landlord receives from Tenant any payment less than the sum of the
fixed annual rent and additional rent then due and owing pursuant to this lease,
Tenant hereby waives its right, if any, to designate the items to which such
payment shall be applied and agrees that Landlord in its sole discretion may
apply such payment in whole or in part to any fixed annual rent, additional rent
or to any combination thereof then due and payable hereunder. Unless Landlord
shall otherwise expressly agree in writing, acceptance of any portion of the
fixed annual rent or additional rent from anyone other than Tenant shall not
relieve Tenant of any of its other obligations under this lease, including the
obligation to pay other fixed annual rent and additional rent, and Landlord
shall have the right at any time, upon notice to Tenant, to require Tenant
(rather than someone other than Tenant) to pay the fixed annual rent and
additional rent payable hereunder directly to Landlord. Furthermore, such
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acceptance of fixed annual rent and additional rent shall not be deemed to
constitute Landlord's consent to an assignment of this lease or a subletting or
other occupancy of the demised premises by anyone other than Tenant, nor a
waiver of any of Landlord's right or Tenant's obligations under this lease.
F. Partial Comparative Year: If the commencement date of the term of
this lease is not the first day of the first comparative year commencing prior
to the date hereof, then the additional rent due under any paragraph of this
Article for the first comparative year (as defined in the relevant paragraph)
shall be a proportionate share of said additional rent for the entire
comparative year, said proportionate share to be based upon the length of time
that the Lease term will be in existence during such first comparative year.
Upon the date of any expiration or termination of this lease (except termination
because of Tenant's default) whether the same be the date herein above set forth
for the expiration of the term or any prior or subsequent date, a proportionate
share of said additional rent for such comparative year during which such
expiration or termination occurs shall immediately become due and payable by
Tenant to Landlord, if it was not theretofore already billed and paid. The said
proportionate share shall be based upon the length of time that this lease shall
have been in existence during such comparative year. Landlord shall, as soon as
reasonably practicable, compute the additional rent due from Tenant, as
aforesaid, which computations shall either be based on that comparative year's
actual figures or be an estimate based upon the most recent statements
theretofore prepared by Landlord and furnished to Tenant as may be required
under any paragraph above. If an estimate is used, then Landlord shall cause
statements to be prepared on the basis of the comparative year's actual figures
promptly after they are available, and thereupon, Landlord and Tenant shall make
appropriate adjustments of any estimated payments theretofore made.
G. Survival of Obligations: Landlord's and Tenant's obligation to make
the adjustments and payments referred to in the preceding paragraphs of this
Article shall survive any expiration or termination of this lease.
H. No Waiver: Any delay or failure of Landlord in billing any tax
escalation hereinabove provided shall not constitute a waiver of or in any way
impair the continuing obligation of Tenant to pay the same hereunder.
3. ELECTRICITY
Tenant agrees that Landlord may furnish electricity to the demised
premises on, at Landlord's option, a "rent inclusion" basis or on a
"submetering" basis. Electricity and electric service, as used herein, shall
mean any element affecting the generation, transmission, and/or redistribution
of electricity, including but not limited to, services which facilitate the
distribution of service.
A. Rent Inclusion: (i) If and so long as Landlord provides electricity
to the demised premises on a rent inclusion basis, Tenant agrees that the fixed
annual rent shall be increased by the amount of the Electricity Rent Inclusion
Factor ("ERIF"), as hereinafter defined. Tenant acknowledges and agrees (a) that
the fixed annual rent herein above set forth in this lease does not yet, but is
to include an ERIF of $3.20 per rentable square foot per annum to compensate
Landlord for electrical wiring and other installations necessary for, and for
its obtaining and making available to Tenant the redistribution of, electric
current as an additional service; and (b) that said ERIF, which shall be subject
to periodic adjustments as hereinafter provided, has been partially based upon
an estimate of Tenant's connected electrical load, which shall be deemed to be
the demand (KW), and hours of use thereof, which shall be deemed to be the
energy (KWH), for ordinary lighting and light office equipment and the operation
of typical small business machines, including copying machines, personal
computers and peripheral equipment such as printers, telephone switching
equipment, facsimile transmission machines (such lighting, machines and
equipment are hereinafter called "Ordinary Equipment") during ordinary business
hours ("ordinary business hours" shall be deemed to mean forty-five (45) hours
per week, 8:00 a.m. to 5:00 p.m., Mondays through Fridays, including holidays),
with Landlord providing an average connected load of 4 1/2 xxxxx of electricity
for all purposes per rentable square foot. Any installation and use of equipment
other than Ordinary Equipment and/or any connected load and/or any energy usage
by Tenant in excess of the foregoing shall result in adjustment of the ERIF as
hereinafter provided. For purposes of this lease the rentable square foot area
of the demised premises shall be deemed to be 1,128 rentable square feet.
(ii) If the cost to Landlord of electricity shall have been,
or shall be, increased subsequent to May 1, 1996 (whether such change occurs
prior to or during the term of this lease), (a) by change in Landlord's electric
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rates or service classifications, or electricity charges, including changes in
market prices, or (b) by any increase in fuel adjustments or (c) by charges of
any kind, or (d) by taxes, imposed or which may be imposed on Landlord's
electricity purchases, or on Landlord's electricity redistribution, or (e) by
virtue of any other cause, then (x) the ERIF, which is a portion of the fixed
annual rent, shall be changed in the same percentage as any such change in cost
due to changes in electric rates, service classifications, or market prices and,
also, (y) Tenant's payment obligation, for electricity redistribution, shall
change from time to time so as to reflect any such increase in any of the items
listed in (b) through (e) of this paragraph. Sales taxes collectible by Landlord
under applicable law in connection with the sale or re-distribution of
electricity to Tenant shall be paid by Tenant to Landlord as additional rent
when billed. Any such percentage change in Landlord's cost due to changes in
electric rates, service classifications or market prices shall be computed by
the application of the average consumption (energy and demand) of electricity
for the entire building for the twelve (12) full months immediately prior to the
rate and/or service classification and/or market price change, or any changed
methods of or rules on billing for same, on a consistent basis to the new rate
and/or service classification and/or market price and to the immediately prior
existing rate and/or service classification and/or market price. If the average
consumption of electricity for the entire building for said prior twelve (12)
months cannot reasonably be applied and used with respect to changed methods of
or rules on billing, then the percentage increase shall be computed by the use
of the average consumption (energy and demand) for the entire building for the
first three (3) months after such change, projected to a full twelve (12)
months, so as to reflect the different seasons; and that same consumption, so
projected, shall be applied to the rate and/or service classification and/or
market price which existed immediately prior to the change. The parties agree
that a reputable, independent electrical consultant, selected by Landlord
("Landlord's electrical consultant"), shall determine the percentage change for
the changes in the ERIF due to Landlord's changed costs, and that Landlord's
electrical consultant may from time to time make surveys in the demised premises
of the electrical equipment and fixtures and the use of current. If any such
survey shall reflect a connected load in the demised premises in excess of 4 1/2
xxxxx of electricity for all purposes per rentable square foot and/or energy
usage in excess of ordinary business hours (each such excess is hereinafter
called "excess electricity") then the connected load and/or the hours of use
portion(s) of the then existing ERIF shall each be increased by an amount which
is equal to the product derived from multiplying the then existing ERIF by a
fraction, the numerator of which is the excess electricity (i.e., excess
connected load and/or excess usage) and the denominator of which is the
connected load and/or the energy usage which was the basis for the computation
of the then existing ERIF. Such fractions shall be determined by Landlord's
electrical consultant. The fixed annual rent shall then be appropriately
adjusted, effective as of the date of any such change in connected load and/or
usage, as disclosed by said survey. If such survey shall disclose installation
and use of other than Ordinary Equipment, then effective as of the date of said
survey, there shall be added to the ERIF portion of the fixed annual rent
(computed and fixed as hereinbefore described) an additional amount equal to
what would be paid under the SC-4 Rate I Service Classification in effect on the
date of this lease (and not the time-of-day rate schedule) for such load and
usage of electricity, with the connected electrical load deemed to be demand
(KW) and the hours of use thereof deemed to be the energy (KWH), as hereinbefore
provided, (which addition to the ERIF shall be increased by all electricity cost
increases of Landlord, as herein above provided, from May 1, 1996 through the
date of billing).
(iii) In no event, whether because of surveys or for any other
reason, is the originally specified per rentable square foot ERIF portion of the
fixed annual rent (plus any net increase thereof, but not decrease, by virtue of
all electric rate or service classification changes subsequent to May 1, 1996)
to be reduced.
B. Submetering: If and so long as Landlord provides electricity to the
demised premises on a submetering basis, Tenant covenants and agrees to purchase
the same from Landlord or Landlord's designated agent at charges, terms and
rates set, from time to time, during the term of this lease by Landlord but not
less than those specified in the service classification in effect on the date of
this lease pursuant to which Landlord then purchased electric current from the
public utility corporation serving the part of the city where the building is
located; provided, however, said charges shall be increased in the same
percentage as any percentage increase in the billing to Landlord for electricity
for the entire building, (a) by reason of increase in Landlord's electric rates
or service classifications, subsequent to January 1, 1970, and so as to reflect
any increase in Landlord's electric charges, including changes in market prices
for electricity from utilities and/or other providers, or (b) by fuel
adjustment, or (c) by taxes or charges of any kind imposed or which may be
imposed on Landlord's electricity purchases, or on Landlord's electricity
redistribution, or (d) by virtue of any other cause subsequent to January 1,
1970. Sales taxes collectible by Landlord under applicable law in connection
with the sale or re-distribution of electricity to Tenant shall be paid by
Tenant to Landlord as additional rent when billed. Any such percentage increase
in Landlord's billing for electricity due to changes in rates or service
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classifications or market prices shall be computed by the application of the
average consumption (energy and demand) of electricity for the entire building
for the twelve (12) full months immediately prior to the rate and/or service
classification change, or any changed methods of or rules on billing for same,
on a consistent basis to the new rate and/or service classification and to the
service classification in effect on January 1, 1970. If the average consumption
of electricity for the entire building for said prior twelve (12) months cannot
reasonably be applied and used with respect to changed methods of or rules on
billing, then the percentage increase shall be computed by the use of the
average consumption (energy and demand) for the entire building for the first
three (3) months after such change, projected to a full twelve (12) months; and
that same consumption, so projected, shall be applied to the service
classification in effect on January 1, 1970. Where more than one meter measures
the service of Tenant in the building, the service rendered through each meter
may be computed and billed separately in accordance with the rates herein. Bills
therefor shall be rendered at such times as Landlord may elect and the amount,
as computed from a meter, shall be deemed to be, and be paid as, additional
rent. In the event that such bills are not paid within five (5) days after the
same are rendered, Landlord may, without further notice, discontinue the service
of electric current to the demised premises without releasing Tenant from any
liability under this lease and without Landlord or Landlord's agent incurring
any liability for any damage or loss sustained by Tenant by such discontinuance
of service. If any tax is imposed upon Landlord's receipt from the sale or
resale of electrical energy or gas or telephone service to Tenant by any
Federal, State or Municipal Authority, Tenant covenants and agrees that where
permitted by law, Tenant's pro rata (based on consumption or estimated
consumption) share of such taxes shall be passed on to, and included in the xxxx
of, and paid by, Tenant to Landlord.
C. General Conditions: (i) The determinations by Landlord's electrical
consultant shall be binding and conclusive on Landlord and on Tenant from and
after the delivery of a copy of each such relevant determination to Landlord and
Tenant, unless, within fifteen (15) days after delivery thereof, Tenant disputes
such determination. If Tenant so disputes the determination, it shall, at its
own expense, obtain from a reputable, independent electrical consultant its own
determinations in accordance with the provisions of this Article. Tenant's
consultant and Landlord's consultant then shall seek to agree. If they cannot
agree within thirty (30) days, they shall choose a third reputable electrical
consultant, whose cost shall be shared equally by the parties, to make similar
determinations which shall be controlling. (If they cannot agree on such third
consultant within ten (10) days, then either party may apply to the Supreme
Court in the County of New York for such appointment.) However, pending such
controlling determinations, Tenant shall pay to Landlord the amount of
additional rent or ERIF in accordance with the determinations of Landlord's
electrical consultant. If the controlling determinations differ from Landlord's
electrical consultant, then the parties shall promptly make adjustment for any
deficiency owed by Tenant or overage paid by Tenant.
(ii) At the option of Landlord, Tenant agrees to purchase from
Landlord or its agents all lamps and bulbs used in the demised premises and to
pay for the cost of installation thereof. If all or part of the submetering
additional rent or the ERIF payable in accordance with this Article becomes
uncollectible or reduced or refunded by virtue of any law, order or regulation,
the parties agree that, at Landlord's option, in lieu of submetering additional
rent or ERIF, and in consideration of Tenant's use of the building's electrical
distribution system and receipt of redistributed electricity and payment by
Landlord of consultants' fees and other redistribution costs, the fixed annual
rental rate(s) to be paid under this lease shall be increased by an "alternative
charge" which shall be a sum equal to $3.20 per rentable square foot of the
demised premises per year, changed in the same percentage as any increases in
the cost to Landlord for electricity for the entire building subsequent to May
1, 1996 because of electric rate or service classification or market price
changes, as hereinabove provided.
(iii) Landlord shall not be liable to Tenant for any loss or
damage or expense which Tenant may sustain or incur if either the quantity or
character of electric service is changed or is no longer available or suitable
for Tenant's requirements. Tenant covenants and agrees that at all times its use
of electric current shall never exceed the capacity of existing feeders to the
building or the risers or wiring installation. Tenant agrees not to connect any
additional electrical equipment to the building electric distribution system
which shall increase consumption or demand beyond the capacity and rating of the
electrical system directly servicing the demised premises without the Landlord's
prior written consent, which shall not be unreasonably withheld. Any riser or
risers to supply Tenant's electrical requirements, upon written request of
Tenant, will be installed by Landlord, at the sole cost and expense of Tenant,
if, in Landlord's sole judgment, the same are necessary and will not cause
permanent damage or injury to the building or demised premises or cause or
create a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants. In addition to the installation of such riser or risers, Landlord
will also at the sole cost and expense of Tenant, install all other equipment
7
proper and necessary in connection therewith subject to the aforesaid terms and
conditions. The parties acknowledge that they understand that it is anticipated
that electric rates, charges, etc., may be changed by virtue of time-of-day
rates, or other methods of billing, electricity purchases and the redistribution
thereof, and fluctuations in the market price of electricity, and that the
references in the foregoing paragraphs to changes in methods of or rules on
billing are intended to include any such changes. Anything herein above to the
contrary notwithstanding, in no event is the submetering additional rent or
ERIF, or any "alternative charge", to be less than an amount equal to the total
of Landlord's payments to public utilities and/or others for the electricity
consumed by Tenant (and any taxes on Landlord's purchase of the same or on
redistribution of same) plus five (5%) percent for transmission line loss, plus
fifteen (15%) percent for other redistribution costs. Landlord reserves the
right, at any time upon thirty (30) days' written notice, to change its
furnishing of electricity to Tenant from a rent inclusion basis to a submetering
basis, or vice versa. Landlord reserves the right to terminate the furnishing of
electricity on a rent inclusion, submetering, or any other basis at any time,
upon thirty (30) days' written notice to Tenant, in which event Tenant may make
application directly to the public utility and/or other providers for Tenant's
entire separate supply of electric current and Landlord shall permit its wires
and conduits, to the extent available and safely capable, to be used for such
purpose and only to the extent of Tenant's then authorized connected load. Any
meters, risers or other equipment or connections necessary to furnish
electricity on a submetering basis or to enable Tenant to obtain electric
current directly from such utility shall be installed at Tenant's sole cost and
expense. Only rigid conduit or electricity metal tubing (EMT) will be allowed.
Landlord, upon the expiration of the aforesaid thirty (30) days' written notice
to Tenant may discontinue furnishing the electric current but this lease shall
otherwise remain in full force and effect. If Tenant was provided electricity on
a rent inclusion basis when it was so discontinued, then commencing when Tenant
receives such direct service and as long as Tenant shall continue to receive
such service, the fixed annual rental rate payable under this lease shall be
reduced by the amount of the ERIF which was payable immediately prior to such
discontinuance of electricity on a rent inclusion basis.
(iv) Alternative Service Providers: Landlord on the date
hereof obtains electric service for the building from Consolidated Edison
Company. Notwithstanding anything herein set forth to the contrary, if permitted
by law, Landlord may contract separately with Consolidated Edison Company and/or
one or more other providers ("Alternative Service Providers") to provide one or
more of the component services which together make up the entire package of
electric service (e.g., transmission, generation, distribution and ancillary
services) to the building. If Landlord elects to contract with any Alternative
Service Provider, Tenant shall cooperate with Landlord and each such Alternative
Service Provider to effect any change to the method or means of providing and
distributing electricity service to the demised premises or any other portion of
the building by reason of such change in the provision of electricity. Such
cooperation shall include but not be limited to providing Landlord or any such
Alternative Service Provider and any other person unimpeded access to the
demised premises and to all wiring, conduit, lines, feeders, cable and risers,
electricity panel boxes and any other component of the electrical distribution
system within or adjacent to the demised premises. Landlord shall not be liable
to Tenant for any loss or damage or expense which Tenant may sustain or incur if
such change shall interfere with Tenant's business or either the quantity or
character of electric service is changed, interrupted or is no longer available
or suitable for Tenant's requirements by reason of such change in the provision
of electric service nor shall any such interference, change, interruption,
unavailability or unsuitability constitute an actual or constructive eviction of
Tenant.
4. ASSIGNMENT
A. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this lease, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used or occupied by others, without the prior written consent of Landlord in
each instance. The transfer of a majority of the issued and outstanding capital
stock of any corporate tenant or subtenant of this lease or a majority of the
total interests in any partnership tenant or subtenant or any other form of
entity or organization, however accomplished, and whether in a single
transaction or in a series of transactions, and the conversion of a tenant or
subtenant entity to either a limited liability company or a limited liability
partnership, shall be deemed on assignment of this lease or of such sublease.
The merger or consolidation of a tenant or subtenant, whether a corporation,
partnership, limited liability company or other form of entity or organization,
where the net worth of the resulting or surviving corporation, partnership,
limited liability company or other form of entity or organization, is less than
the net worth of Tenant or subtenant immediately prior to such merger or
consolidation shall be deemed an assignment of this lease or of such sublease.
If this lease be assigned, or if the demised premises or any part thereof be
underlet or occupied by anybody other than Tenant, Landlord may, after default
8
by Tenant, collect rent from the assignee, undertenant or occupant, and apply
the net amount collected to the rent herein reserved, but no assignment,
underletting, occupancy or collection shall be deemed a waiver of the provisions
hereof, the acceptance of the assignee, undertenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. The consent by Landlord to an assignment or
underletting shall not in any way be construed to relieve Tenant from obtaining
the express consent in writing of Landlord to any further assignment or
underletting. In no event shall any permitted subtenant assign or encumber its
sublease or further sublet all or any portion of its sublet space, or otherwise
suffer or permit the sublet space or any part thereof to be used or occupied by
others, without Landlord's prior written consent in each instance. A
modification, amendment or extension of a sublease shall be deemed a sublease.
If any lien is filed against the demised premises or the building of which the
same form a part for brokerage services claimed to have been performed for
Tenant, whether or not actually performed, the same shall be discharged by
Tenant within ten (10) days thereafter, at Tenant's expense, by filing the bond
required by law, or otherwise, and paying any other necessary sums, and Tenant
agrees to indemnify Landlord and its agents and hold them harmless from and
against any and all claims, losses or liability resulting from such lien for
brokerage services rendered. For the purposes of this Article, an "interest"
shall mean a right to participate, directly or indirectly, through one or more
intermediaries, nominees, trustees or agents, in any of the profits, losses,
dividends, distributions, income, gain, losses or capital of any entity or other
organization.
B. (i) If Tenant desires to assign this lease or to sublet all or any
portion of the demised premises, it shall first submit in writing to Landlord
the documents described in paragraph C below, and shall offer in writing, (a)
with respect to a prospective assignment, to assign this lease to Landlord
without any payment of moneys or other consideration therefor, or, (b) with
respect to a prospective subletting, to sublet to Landlord the portion of the
demised premises involved ("Leaseback Area") for the term specified by Tenant in
its proposed sublease or, at Landlord's option, for the balance of the term of
the Lease less one (1) day, and at the lower of (x) Tenant's proposed subrental
and (y) at the same rate of fixed rent and additional rent, and otherwise on the
same terms, covenants and conditions (including provisions relating to
escalation rents), as are contained herein and as are allocable and applicable
to the portion of the demised premises to be covered by such subletting. The
offer shall specify the date when the Leaseback Area will be made available to
Landlord, which date shall be in no event earlier than forty-five (45) days nor
later than one hundred eighty (180) days following the acceptance of the offer.
If an offer of sublease is made, and if the proposed sublease will result in all
or substantially all of the demised premises being sublet, then Landlord shall
have the option to extend the term of its proposed sublease for the balance of
the term of this lease less one (1) day.
(ii) Landlord shall have a period of thirty (30) days from the
receipt of such offer (and all documents required under paragraph C below) to
either accept or reject the same. If Landlord shall accept such offer (a) Tenant
shall then execute and deliver to Landlord, or to anyone designated or named by
Landlord, an assignment or sublease, as the case may be, in either case in a
form reasonably satisfactory to Landlord's counsel; and (b) if the proposed
transaction is a sublease and Landlord accepts such offer, Tenant, on demand,
shall pay to Landlord or its managing agent (as Landlord shall elect) an amount
equal to the brokerage commissions and any work contribution which would have
been incurred by Tenant but for Landlord's accepting such offer.
(iii) If a sublease is so made it shall expressly:
(a) permit Landlord to make further subleases of all or any
part of the Leaseback Area and (at no cost or expense to
Tenant) to make and authorize any and all changes,
alterations, installations and improvements in such space as
necessary;
(b) provide that Tenant will at all times permit reasonably
appropriate means of ingress to and egress from the Leaseback
Area;
(c) negate any intention that the estate created under such
sublease be merged with any other estate held by either of the
parties;
(d) provide that Landlord shall accept the Leaseback Area "as
is" except that Landlord, at Tenant's expense, shall perform
all such work and make all such alterations as may be required
9
physically to separate the Leaseback Area from the remainder
of the demised premises and to permit lawful occupancy;
(e) provide that at the expiration of the term of such
sublease Tenant will accept the Leaseback Area in its then
existing condition, subject to the obligations of Landlord to
make such repairs thereto as may be necessary to preserve the
Leaseback Area in good order and condition, ordinary wear and
tear excepted;
(f) provide that Landlord shall indemnify and save Tenant
harmless from all obligations under this lease as to the
Leaseback Area during the period of time it is so sublet,
except for fixed annual rent and additional rent, if any, due
under the within Lease, which are in excess of the rents and
additional sums due under such sublease.
(iv) Subject to the foregoing, performance by Landlord, or its
designee, under a sublease of the Leaseback Area shall be
deemed performance by Tenant of any similar obligation under
this lease and any default under any such sublease shall not
give rise to a default under a similar obligation contained in
this lease, nor shall Tenant be liable for any default under
this lease or deemed to be in default hereunder if such
default is occasioned by or arises from any act or omission of
the subtenant under such sublease or is occasioned by or
arises from any act or omission of any occupant holding under
or pursuant to any such sublease.
C. If Tenant requests Landlord's consent to a specific assignment or
subletting, it shall submit in writing to Landlord (i) the name and address of
the proposed assignee or subtenant, (ii) a duly executed counterpart of the
proposed agreement of assignment or sublease, (iii) reasonably satisfactory
information as to the nature and character of the business of the proposed
assignee or subtenant, and as to the nature of its proposed use of the space,
and (iv) banking, financial or other credit information relating to the proposed
assignee or subtenant reasonably sufficient to enable Landlord to determine the
financial responsibility and character of the proposed assignee or subtenant.
D. If Landlord shall not have accepted Tenant's offer, as provided in
paragraph B, then Landlord will, subject to paragraph F below, not unreasonably
withhold or delay its consent to Tenant's request for consent to such specific
assignment or subletting, where Tenant will not move the conduct of its business
to another building in New York City. Any consent of Landlord under this Article
shall be subject to the terms of this Article and the effectiveness of any
assignment or sublease under this Article shall be conditioned upon there being
no default by Tenant, beyond any grace period, under any of the terms, covenants
and conditions of this lease at the time that Landlord's consent to any such
subletting or assignment is requested and on the date of the commencement of the
term of any proposed sublease or the effective date of any proposed assignment.
E. Tenant understands and agrees that no assignment or subletting shall
be effective unless and until Tenant, upon receiving any necessary Landlord's
written consent (and unless it was theretofore delivered to Landlord) causes a
duly executed copy of the sublease or assignment to be delivered to Landlord
within ten (10) days after execution thereof. Any such sublease shall provide
that the subtenant shall comply with all applicable terms and conditions of this
lease to be performed by Tenant hereunder. Any such assignment of lease shall
contain an assumption by the assignee of all of the terms, covenants and
conditions of this lease to be performed by Tenant.
F. Anything herein contained to the contrary notwithstanding:
(i) Tenant shall not advertise (but may list with brokers) its
space for assignment or subletting at a rental rate lower than the greater of
the then building rental rate for such space or the rental rate then being paid
by Tenant to Landlord.
(ii) The transfer of outstanding capital stock of any
corporate tenant, for purposes of this Article, shall not include sale of such
stock by persons other than those deemed "insiders" within the meaning of the
Securities Exchange Act of 1934 as amended, and which sale is effected through
"over-the-counter market" or through any recognized stock exchange.
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(iii) No assignment or subletting shall be made:
(a) To any person or entity which shall at that time be a
tenant, subtenant or other occupant (or an affiliate
thereof) of any part of the building of which the
demised premises form a part, or who dealt with
Landlord or Landlord's agent (directly or through a
broker) with respect to space in the building during
the twelve (12) months immediately preceding Tenant's
request for Landlord's consent;
(b) By the legal representatives of Tenant or by any person
to whom Tenant's interest under this lease passes by
operation of law, except in compliance with the
provisions of this Article;
(c) To any person or entity for the conduct of a business
which is not in keeping with the standards and the
general character of the building of which the demised
premises form a part.
(iv) Tenant shall retain the building's managing agent as
Tenant's broker in connection with any assignment or subletting, except in
connection with a transaction described in paragraph G or paragraph H.
(v) The listing of any names other than that of Tenant,
whether on the doors of the demised premises or on the building directory shall
not be construed as consent to the occupancy or subletting of all or any portion
of the demised premises or to an assignment of this lease.
G. Anything herein above contained to the contrary notwithstanding, the
offer back to Landlord provisions of paragraph B above shall not apply to, and
Landlord will not unreasonably withhold or delay its consent to an assignment of
this lease, or sublease of all or part of the demised premises, to the parent of
Tenant or to a wholly-owned subsidiary of Tenant or of said parent of Tenant,
provided the net worth of the transferee or subtenant, after such transaction,
is equal to or greater than the greater of Tenant's net worth on the date hereof
or immediately prior to such transaction, and provided, also, that any such
transaction complies with the other provisions of this Article.
H. Anything herein above contained to the contrary notwithstanding, the
offer back to Landlord provisions of paragraph B above shall not apply to, and
Landlord will not unreasonably withhold or delay its consent to an assignment of
this lease, or sublease of all or part of the demised premises, to any
corporation (a) to which substantially all the assets of Tenant are transferred
or (b) into which Tenant may be merged or consolidated, provided that the net
worth, experience and reputation of such transferee or of the resulting or
surviving corporation, as the case may be, is equal to or greater than the net
worth, experience and reputation of Tenant and of any guarantor of this lease
immediately prior to such transfer, and provided, also, that any such
transaction complies with the other provisions of this Article.
I. No consent from Landlord shall be necessary under paragraphs G and H
above where (a) reasonably satisfactory proof is delivered to Landlord that the
net worth and other provisions of paragraphs G or H, as the case may be, and the
other provisions of this Article, have been satisfied and (b) Tenant, in a
writing reasonably satisfactory to Landlord's attorneys, agrees to remain
primarily liable jointly and severally with any transferee or assignee, for the
obligations of Tenant under this lease.
J. If Landlord shall not have accepted any required Tenant's offer
and/or Tenant effects any assignment or subletting, then Tenant thereafter shall
pay to Landlord a sum equal to (i) any rent or other consideration paid to
Tenant by any subtenant which (after deducting the costs of Tenant, if any, in
effecting the subletting, including reasonable alteration costs, commissions and
legal fees) is in excess of the rent allocable strictly on a per square foot
basis, without regard to any other allocation of value, by dividing aggregate
consideration by the rentable square feet of the area so sublet) to the
subleased space which is then being paid by Tenant to Landlord pursuant to the
terms hereof, and (ii) any other profit or gain (after deducting any necessary
expenses incurred) realized by Tenant from any such subletting or assignment.
All sums payable hereunder by Tenant shall be payable to Landlord as additional
rent upon receipt thereof by Tenant.
K. 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 such subletting to any subtenant and/or acceptance of
11
rent or additional rent by Landlord from any subtenant, Tenant shall and will
remain fully liable for the payment of the fixed annual rent and additional rent
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 observed and performed and for all the acts and omissions of any
licensee, subtenant, or any other person claiming under or through any subtenant
that 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 further subletting (including,
without limitation, any extensions or renewals of any initial sublettings) of
the demised premises by Tenant, or any person claiming through or under Tenant
shall, or will be, made, except upon compliance with, and subject to, the
provisions of this Article.
L. Any assignment or transfer 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, whereby
the assignee shall assume all of the obligations of this lease on the part or
Tenant to be performed or observed and whereby the assignee shall agree that the
provisions contained herein shall, notwithstanding such assignment or transfer,
continue to be binding upon it in respect of all future assignments and
transfers. The original named Tenant covenants that, notwithstanding any
assignment or transfer whether or not in violation of the provisions hereof, and
notwithstanding the acceptance of fixed annual rent and/or additional rent by
Landlord from an assignee, transferee or any other party, the original named
Tenant shall remain fully liable for the payment of the fixed annual rent and
additional rent and for the other obligations of this lease on the part of
Tenant to be performed or observed.
M. If Landlord shall decline to give consent to any proposed assignment
or sublease, or if Landlord shall exercise Landlord's option under paragraph B
of this Article, Tenant shall indemnify, defend and hold Landlord harmless from
and against any and all losses, liabilities, costs and expenses (including
reasonable attorneys' fees) resulting from any claims that may be made against
Landlord by the proposed assignee or subtenant or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease. This provision shall survive the expiration or
sooner termination of this lease.
N. The joint and several liability of Tenant and any immediate or
remote successor in interest to 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 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.
5. DEFAULT
Landlord may terminate this lease on three (3) days' notice: (a) if
fixed annual rent or additional rent or any other payment due hereunder is not
paid within five (5) business days after written notice from Landlord; or (b) if
Tenant shall have failed to cure a default in the performance of any covenant of
this lease (except the payment of rent), or any rule or regulation hereinafter
set forth, within five (5) business days after written notice thereof from
Landlord, or if default cannot be completely cured in such time, if Tenant shall
not promptly proceed to cure such default within said five (5) business days, or
shall not complete the curing of such default with due diligence; or (c) when
and to the extent permitted by law, if a petition in bankruptcy shall be filed
by or against Tenant or if Tenant shall make a general assignment for the
benefit of creditors, or receive the benefit of any insolvency or reorganization
act; or (d) if a receiver or trustee is appointed for any portion of Tenant's
property and such appointment is not vacated within twenty (20) business days;
or (e) if an execution or attachment shall be issued under which the premises
shall be taken or occupied or attempted to be taken or occupied by anyone other
than Tenant; or (f) if the premises become and remain vacant or deserted for a
period over ten (10) business days; or (g) if Tenant shall default beyond any
grace period under any other lease between Tenant and Landlord; or (h) if Tenant
shall fail to move into or take possession of the premises within fifteen (15)
business days after commencement of the term of this lease. Notwithstanding
anything herein to the contrary set forth, Tenant shall not commit waste or
cause any damage to any portion of the building irrespective of whether within
or without the demised premises. The willful infliction of damage on any
property or the interference with the quiet enjoyment by any other occupant of
the building shall be deemed to be a conditional limitation of the term of this
lease. Tenant shall not create any nuisance or other disturbance within the
building.
12
At the expiration of the three (3) day notice period, this lease and
any rights of renewal or extension thereof shall terminate as completely as if
that were the date originally fixed for the expiration of the term of this
lease; but Tenant shall remain liable as hereinafter provided.
6. RE-LETTING, ETC.
If Landlord shall re-enter the premises on the default of Tenant, by
summary proceedings or otherwise: (a) Landlord may re-let the premises or any
part thereof as Tenant's agent, in the name of Landlord, or otherwise, for a
term shorter or longer than the balance of the term of this lease, and may grant
concessions or free rent; (b) Tenant shall pay Landlord any deficiency between
the rent herein reserved and the net amount of any rents collected by Landlord
for the remaining term of this lease, through such re-letting. Such deficiency
shall become due and payable monthly, as it is determined. Landlord shall have
no obligation to re-let the premises, and its failure or refusal to do so, or
failure to collect rent on re-letting, shall not affect Tenant's liability
hereunder. In computing the net amount of rents collected through such
re-letting, Landlord may deduct all expenses incurred in obtaining possession or
re-letting the premises, including legal expenses and fees, brokerage fees, the
cost of restoring the premises to good order, and the cost of all alterations
and decorations deemed necessary by Landlord to effect re-letting. In no event
shall Tenant be entitled to a credit or repayment for rerental income which
exceed the sums payable to Tenant hereunder or which covers a period after the
original term of this lease; (c) Tenant hereby expressly waives any right of
redemption granted by any present or future law. "Re-enter" and "re-entry" as
used in this lease are not restricted to their technical legal meaning. In the
event of a breach or threatened breach of any of the covenants or provisions
hereof Landlord shall have the right of injunction. Mention herein of any
particular remedy shall not preclude Landlord from any other available remedy;
and (d) Landlord shall recover as liquidated damages, in addition to accrued
rent and other charges, if Landlord's re-entry is the result of Tenant's
bankruptcy, insolvency, or reorganization, the full rental for the maximum
period allowed by any act relating to bankruptcy, insolvency or reorganization.
If Landlord re-enters the premises for any cause, or if Tenant abandons
or vacates the premises, and after the expiration of the term of this lease, any
property left in the premises by Tenant shall be deemed to have been abandoned
by Tenant, and Landlord shall have the right to retain or dispose of such
property in any manner without any obligation to account therefor to Tenant. If
Tenant shall at any time default hereunder, and if Landlord shall institute an
action or summary proceeding against Tenant based upon such default, then Tenant
will reimburse Landlord for the legal expenses and fees thereby incurred by
Landlord.
7. LANDLORD MAY CURE DEFAULTS
If Tenant shall default in performing any covenant or condition of this
lease, Landlord may perform the same for the account of Tenant, and if Landlord,
in connection therewith, or in connection with any default by Tenant, makes any
expenditures or incurs any obligations for the payment of money, including but
not limited to attorneys' fees and disbursements, such sums so paid or
obligations incurred shall be deemed to be additional rent hereunder, and shall
be paid by Tenant to Landlord together with interest at an annual rate equal to
the average of all prime rates published from time to time in The Wall Street
Journal (Eastern Edition) plus three (3%) percent calculated from the date of
each expenditure by Landlord, within five (5) days of rendition of any xxxx or
statement therefor, and if Tenant's lease term shall have expired at the time of
the making of such expenditures or incurring such obligations, such sums shall
be recoverable by Landlord as damages.
8. ALTERATIONS
A. Tenant shall make no decoration, alteration, addition or improvement
("alteration") in the premises, without the prior written consent of Landlord,
and then only by contractors or mechanics and in such manner and with such
materials as shall be approved by Landlord. All alterations, additions or
improvements to the premises, including window and central air conditioning
equipment and duct work, if any, and fixtures, equipment and built-ins, except
movable office furniture and equipment installed at the expense of Tenant,
shall, unless Landlord elects otherwise in writing, become the property of
Landlord, and shall be surrendered with the premises at the expiration or sooner
termination of the term of this lease. Any such alterations, additions and
13
improvements which Landlord shall designate, shall be removed by Tenant and any
damage repaired, at Tenant's expense prior to the expiration of the term of this
lease.
B. Anything in this Article to the contrary notwithstanding, Landlord
shall not unreasonably withhold or delay approval of written requests of Tenant
to make nonstructural interior alterations in the demised premises, provided
that such alterations do not affect utility services or plumbing and electrical
lines or other systems of the building. All alterations shall be performed in
accordance with the following conditions:
(i) All alterations requiring the submission of plans to any
governmental agency (including the department of buildings of the City of New
York) shall be performed in accordance with plans and specifications first
submitted to Landlord for its prior written approval. Landlord shall be given,
in writing, a good description of all other alterations.
(ii) All alterations shall be done in a good and workmanlike manner.
Tenant shall, prior to the commencement of any such alterations, at its sole
cost and expense, obtain and exhibit to Landlord any governmental permit
required in connection with such alterations.
(iii) All alterations shall be done in compliance with all other
applicable provisions of this lease, all building regulations (including
specifications for construction material and finishes criteria adopted by
Landlord for the building) and with all applicable laws, ordinances, directions,
rules and regulations of governmental authorities having jurisdiction,
including, without limitation, the Americans with Disabilities Act of 1990, as
amended, New York City Local Law No. 5/73 and New York City Local Law No. 58/87
and similar present or future laws, and regulations issued pursuant thereto, and
also New York City Local Law No. 76 and similar present or future laws, and
regulations issued pursuant thereto, on abatement, storage, transportation and
disposal of asbestos, which work, if required, shall be effected at Tenant's
sole cost and expense, by contractors and consultants approved by Landlord and
in strict compliance with the aforesaid rules and regulations and with
Landlord's rules and regulations thereon. Notwithstanding anything to the
contrary herein contained, Tenant agrees not to penetrate or disrupt the
structural columns of the building located within the demised premises or any
area within three feet of any such structural column, in connection with any
alteration performed for or on behalf of Tenant.
(iv) All work shall be performed with union labor having the proper
jurisdictional qualifications by contractors and subcontractors approved by
Landlord.
(v) Tenant shall keep the building and the demised premises free and
clear of all liens for any work or material claimed to have been furnished to
Tenant or to the demised premises.
(vi) All work to be performed by Tenant shall be done in a manner which
will not interfere with or disturb other tenants and occupants of the building.
No demolition or core drilling or welding shall be permitted between the hours
of 7:00 a.m. and 6:00 p.m. on Mondays through Fridays.
(vii) All alterations or other work and installations in and for the
demised premises, which shall be consented to by Landlord as provided herein,
including without limitation, Tenant's Initial Installations (as hereinafter
defined), if any, and any further changes in or additions to the demised
premises after said initial work has been completed, shall, at Landlord's
option, be effected on Tenant's behalf by Landlord, its agents or contractors,
and Tenant shall pay to Landlord, as additional rent promptly when billed, all
costs for such work, including labor, materials and general conditions, plus,
for supervising and coordinating such work (regardless of whether Landlord, its
agents or contractors perform such work), ten percent (10%) of the cost of such
work (including overhead) for profit plus ten percent (10%) of the cost of such
work for overhead.
(viii) Notwithstanding anything herein set forth to the contrary,
within thirty (30) days after final completion of any alteration, Tenant shall
deliver to the Landlord final record drawings of the alteration including, as
may be pertinent to the work performed, a reflected ceiling plan, mechanical and
electrical drawings, partition plan and any other drawings which may be required
to indicate accurately the layout and systems of the demised premises. Tenant
shall require its architect to load and maintain such record plans on a CADD
system.
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9. LIENS
Prior to commencement of its work in the demised premises, Tenant shall
obtain and deliver to Landlord a written letter of authorization, in form
reasonably satisfactory to Landlord's counsel, signed by architects, engineers,
designers and consultants to become involved in such work, which shall confirm
that any of their drawings or plans are to be removed from any filing with
governmental authorities, on request of Landlord, in the event that said
architect, engineer or designer thereafter no longer is providing services with
respect to the demised premises. With respect to contractors, subcontractors,
materialmen and laborers, and architects, engineers and designers, for all work
or materials to be furnished to Tenant at the premises, Tenant agrees to obtain
and deliver to Landlord written and unconditional waivers of mechanics liens
upon the premises or the building, after payments to the contractors, their
subcontractors and vendors, Tenant's architects, engineers, designers and
consultants, subject to any then applicable provisions of the Lien law.
Notwithstanding the foregoing, Tenant at its expense shall cause any lien filed
against the premises or the building, for work or materials claimed to have been
furnished to Tenant, to be discharged of record within thirty (30) days after
notice thereof.
10. REPAIRS
Tenant shall take good care of the premises and the fixtures and
appurtenances therein, and shall make all repairs necessary to keep them in good
working order and condition, including structural repairs when those are
necessitated by the act, omission or negligence of Tenant or its agents,
employees or invitees. The exterior walls of the building, the windows and the
portions of all window xxxxx outside same and areas above any hung ceiling are
not part of the premises demised by this lease, and Landlord hereby reserves all
rights to such parts of the building. Landlord shall replace, at the expense of
Tenant, any plate glass and other glass damaged or broken from any cause
whatsoever in and about the demised premises. Landlord may insure, and keep
insured, at Tenant's expense, all plate and other glass in the demised premises
for and in the name of Landlord. Bills for the premium therefor shall be
rendered by Landlord to Tenant at such times as Landlord may elect and shall be
due from and payable by Tenant when rendered and the amount thereof shall be
deemed to be and paid as additional rent.
11. DESTRUCTION
If the premises shall be partially damaged by fire or other casualty,
the damage shall be repaired at the expense of Landlord, but without prejudice
to the rights of subrogation, if any, of Landlord's insurer. Landlord shall not
be required to repair or restore any of Tenant's property or any alteration or
leasehold improvement made by or for Tenant at Tenant's expense. Tenant shall
give Landlord prompt notice of any damage or destruction to the premises. The
rent shall xxxxx in proportion to the portion of the premises not usable by
Tenant. Landlord shall not be liable to Tenant for any delay in restoring the
premises, Tenant's sole remedy being the right to an abatement of rent, as above
provided. If (i) the premises are rendered wholly untenantable by fire or other
casualty and if Landlord shall decide not to restore the premises, (ii) the
premises are rendered wholly untenantable by fire or other casualty during the
last twenty-four (24) months of the term hereof, or (iii) if the building shall
be so damaged that Landlord shall decide to demolish it or to rebuild it
(whether or not the premises have been damaged), Landlord may within ninety (90)
days after such fire or other cause give written notice to Tenant of its
election that the term of this lease shall automatically expire no less than ten
(10) days after such notice is given. Tenant hereby expressly waives the
provisions of Section 227 of the Real Property Law and agrees that the foregoing
provisions of this Article shall govern and control in lieu thereof.
12. END OF TERM.
Tenant shall surrender the premises to Landlord at the expiration or
sooner termination of this lease in good order and condition, except for
reasonable wear and tear and damage by fire or other casualty, and Tenant shall
remove all of its property. Tenant agrees that any personal property remaining
in the demised premises following the expiration of the term of this lease (or
such earlier date as of which the term hereof may have been terminated) shall
for all purposes be deemed conveyed to and to be the property of Landlord who
shall be free to dispose of such property, at Tenant's cost, in any manner
Landlord deems desirable. Landlord may retain or assign any salvage or other
residual value of such property. In consideration of Landlord's disposing of
such property, Tenant shall reimburse Landlord or pay to Landlord any cost which
Landlord may incur in disposing of such property within ten (10) days after
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demand therefor. Tenant shall indemnify and save Landlord harmless against all
costs, claims, loss or liability resulting from delay by Tenant in so
surrendering the premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay. Additionally, the parties recognize and
agree that other damage to Landlord resulting from any failure by Tenant timely
to surrender the premises will be substantial, will exceed the amount of monthly
rent theretofore payable hereunder, and will be impossible of accurate
measurement. Tenant therefore agrees that if possession of the premises is not
surrendered to Landlord within one (1) day after the expiration or sooner
termination of the term of this lease, then Tenant will pay Landlord as
liquidated damages for each month and for each portion of any month during which
Tenant holds over in the premises after expiration or termination of the term of
this lease, a sum equal to three times the average rent and additional rent
which was payable per month under this lease during the last six months of the
term thereof. The aforesaid obligations shall survive the expiration or sooner
termination of the term of this lease. Anything in this lease to the contrary
notwithstanding, the acceptance of any rent shall not preclude Landlord from
commencing and prosecuting a holdover or summary eviction proceeding, and the
preceding sentence shall be deemed to be an agreement expressly "providing
otherwise" within the meaning of Section 232-c of the Real Property Law of the
State of New York and any successor law of like import. Tenant expressly waives,
for itself and for any person claiming through or under the Tenant, any rights
which the 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 successor law of
like import then in force in connection with any holdover summary proceedings
which the Landlord may institute. Tenant's obligations under this paragraph
shall survive the expiration or sooner termination of the term of this lease. At
any time during the term of this lease, Landlord may exhibit the premises to
prospective purchasers or mortgagees of Landlord's interest therein. During the
last year of the term of this lease, Landlord may exhibit the premises to
prospective tenants.
13. SUBORDINATION AND ESTOPPEL, ETC.
A. This lease and Tenant's rights hereunder are and shall be subject
and subordinate to any and all master leases of the building project, ground or
underlying leases and to all mortgages, building loan agreements, leasehold
mortgages, spreader and consolidation agreements and other similar documents and
instruments (individually, a "Superior Interest" and collectively, "Superior
Interests"), which may now or hereafter affect such leases or the real property
of which the premises form a part and to all renewals, modifications,
consolidations, replacements, extensions, assignments, spreaders, consolidations
and refinancings thereof and to all advances made or hereafter made thereunder.
This Article shall be self-operative and no further instrument of subordination
shall be necessary. In confirmation of such subordination, Tenant shall within
ten (10) days after written request execute any instrument in recordable form
that Landlord or the holder of any Superior Interest may request. Tenant hereby
appoints Landlord as Tenant's irrevocable attorney-in-fact to execute any
document of subordination on behalf of Tenant. The foregoing power of attorney
is a power coupled with an interest and not revocable during the term of this
lease. In the event that the Master Lease or any other ground or underlying
lease is terminated, or any mortgage foreclosed, this lease shall not terminate
or be terminable by Tenant unless Tenant was specifically named in any
termination or foreclosure judgment or final order for the purposes of
terminating this lease or the interest of Tenant in the premises.
B. Any holder of a Superior Interest may elect that this lease shall
have priority over such Superior Interest and, upon notification by such holder
of a Superior Interest to Tenant, this lease shall be deemed to have priority
over such Superior Interest, whether this lease is dated prior to or subsequent
to the date of such Superior Interest. In the event that any master lease or any
other ground or underlying lease is terminated as aforesaid, or if the interests
of Landlord under this lease are transferred by reason of or assigned in lieu of
foreclosure or other proceedings for enforcement of any mortgage, or if the
holder of any mortgage acquires a lease in substitution therefor, or if the
holder of any Superior Interest shall otherwise succeed to Landlord's estate in
the lease or the building, or the rights of Landlord under this lease, then
Tenant will, at the option to be exercised in writing by the lessor under any
such master lease or other ground or underlying lease, the holder of any other
Superior Interest or such purchaser, assignee or lessee, as the case may be, (i)
attorn to it and will perform for its benefit all the terms, covenants and
conditions of this lease on the Tenant's part to be performed with the same
force and effect as if said lessor, mortgagee or such purchaser, assignee or
lessee, were the landlord originally named in this lease, or (ii) enter into a
new lease with said lessor, mortgagee or such purchaser, assignee or lessee, as
landlord, for the remaining term of this lease and otherwise on the same terms,
conditions and rentals as herein provided. The foregoing provisions shall inure
to the benefit of any such successor landlord, shall apply notwithstanding that,
as a matter of law, this lease may terminate upon the termination of any
Superior Interest, shall be self-operative upon any such request and no further
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instrument shall be required to give effect to said provisions; provided,
however, that upon request of any such successor landlord, Tenant shall promptly
execute and deliver, from time to time, any instrument in recordable form that
any successor landlord may reasonably request to evidence and confirm the
foregoing provisions of this paragraph, in form and content reasonably
satisfactory to each such successor landlord, acknowledging such attornment and
setting forth the terms and conditions of its tenancy. Upon such attornment,
this lease shall continue in full force and effect as a direct lease between
such successor landlord and Tenant upon all of the then executory terms of this
lease except that such successor landlord shall not be: (a) liable for any
previous act or omission or negligence of any prior landlord under this lease
(including, without limitation, Landlord); (b) subject to any counterclaim,
demand, defense, deficiency, credit or offset which Tenant might have against
any prior landlord under this lease (including, without limitation, Landlord);
(c) bound by any modification, amendment, cancellation or surrender of this
lease or by any prepayment of more than one month's rent or additional rent,
unless such modification, cancellation, surrender or prepayment shall have been
approved in writing by the successor landlord; (d) bound by any security
deposit, cleaning deposit or other prepaid charge which Tenant might have paid
in advance to any prior landlord under this lease (including, without
limitation, Landlord), unless such payments have been received by the successor
landlord; and (e) bound by any agreement of any landlord under the lease
(including, without limitation, Landlord) with respect to the completion of any
improvements affecting the premises, the building, the land or any part thereof
or for the payment or reimbursement to Tenant of any contribution to the cost of
the completion of any such improvements.
C. If the then current term of any master, ground or other underlying
lease to which this lease is subordinate shall expire prior to the date set
forth herein for the expiration of this lease, then, unless (i) the term of such
underlying or other lease shall have been extended, which extension Landlord may
arbitrarily decline to enter into or (ii) the holder of any Superior Interest
shall elect, in writing, to have Tenant attorn to it, the term of this lease
shall expire on the date of the expiration of any master, ground or other
underlying lease to which this lease is subordinate, notwithstanding the later
termination date herein above set forth. If any such master, ground or other
underlying lease is renewed or if the holder of any Superior Interest shall
elect, in writing, to have Tenant attorn to it, then the term of this lease
shall expire as herein above set forth and, Tenant shall attorn to the holder of
such Superior Interest on the terms and conditions set forth in paragraph B
above for attornment.
D. From time to time, Tenant, on ten (10) days' prior written request
by Landlord, will deliver to Landlord and the holder of any Superior Interest a
statement in writing certifying that this lease is unmodified and is 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) and the dates to
which the rent and other charges have been paid, stating the date of expiration
of the term hereof and whether any renewal options exists (and if so, the terms
thereof), stating whether any defense or counterclaim to the payment of any rent
exists, whether any allowance or work is due to Tenant from Landlord, stating
whether or not the Landlord is in default in performance of any covenant,
agreement or condition contained in this lease and, if so, specifying each such
default of which Tenant may have knowledge and containing such other information
as the holder of any Superior Interest may request. If Tenant shall fail to
deliver such a statement within such ten (10) day period, Landlord is hereby
appointed the true and lawful attorney-in-fact of Tenant, coupled with an
interest, for the purpose of executing and delivering such statement on behalf
of Tenant. Nothing contained herein will be deemed to impair any right,
privilege or option of the holder of any Superior Interest. If, in connection
with obtaining, continuing or renewing financing or refinancing for the building
and/or the land, the lender shall request reasonable modifications to this lease
as a condition to such financing or refinancing, Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such modifications
do not materially and adversely increase the obligations of Tenant hereunder
(except, perhaps, to the extent that Tenant may be required to give notices of
any defaults by Landlord to such lender with the granting of such additional
time for such curing as may be required for such lender to get possession of the
said building and/or land) or materially and adversely affect the leasehold
interest hereby created or the rights of Tenant thereunder. If any act or
omission by Landlord shall give Tenant the right, immediately or after the lapse
of time, to cancel or terminate this lease or to claim a partial or total
eviction, Tenant shall not exercise any such right until: (a) it shall have
given written notice of such act or omission to each holder of any Superior
Interest of which it has written notice, and (b) a reasonable period for
remedying such act or omission shall have elapsed following such notice (which
reasonable period shall be equal to the period to which Landlord would be
entitled under this lease to effect such remedy, plus an additional thirty (30)
day period), provided such holder or lessor shall, with reasonable diligence,
give Tenant notice of its intention to remedy such act or omission and shall
commence and continue to act upon such intention.
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14. CONDEMNATION
A. In the event that the whole of the demised premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use or
purpose, this lease and the term and estate hereby granted shall forthwith cease
and terminate as of the date of vesting of title (hereinafter referred to as the
"date of taking"), and Tenant shall have no claim against Landlord for, or make
any claim for, the value of any unexpired term of this lease, and the rent and
additional rent shall be apportioned as of such date.
B. In the event that any part of the demised premises shall be so
condemned or taken, then this lease shall be and remain unaffected by such
condemnation or taking, except that the rent and additional rent allocable to
the part so taken shall be apportioned as of the date of taking, provided,
however, that Tenant may elect to cancel this lease in the event more than
twenty-five (25%) percent of the demised premises should be so condemned or
taken, provided such notice of election is given by Tenant to Landlord not later
than thirty (30) days after the date when title shall vest in the condemning
authority. Landlord shall promptly give Tenant copies of any notice received
from the condemning authority as to vesting. Upon the giving of such notice,
this lease shall terminate on the thirtieth day following the date of such
notice and the rent and additional rent shall be apportioned as of such
termination date. Upon such partial taking and this lease continuing in force as
to any part of the demised premises, the rent and additional rent shall be
diminished by an amount representing the part of said rent and additional rent
properly applicable to the portion or portions of the demised premises which may
be so condemned or taken. If as a result of the partial taking (and this lease
continuing in force as to the part of the demised premises not so taken), any
part of the demised premises not taken is damaged, Landlord agrees with
reasonable promptness to commence the work necessary to restore the damaged
portion to the condition existing immediately prior to the taking (subject to
paragraph D below), and prosecute the same with reasonable diligence to its
completion. In the event Landlord and Tenant are unable to agree as to the
amount by which the rent and additional rent shall be diminished, the matter
shall be determined by arbitration in New York City.
C. Nothing herein provided shall preclude Tenant from appearing,
claiming, proving and receiving in the condemnation proceeding, Tenant's moving
expenses, and the value of Tenant's fixtures, or Tenant's alterations,
installations and improvements which do not become part of the building, or
property of Landlord; or, in the case of temporary taking, so long as rent
hereunder is paid to Landlord, Tenant may make a claim for rental value and
damages to the demised premises (which are of a nature that Tenant is obligated
hereunder to repair same) or damages to Tenant's furniture and fixtures.
D. In the event that only a part of the demised premises shall be so
taken and Tenant shall not have elected to cancel this lease as above provided,
the entire award for a partial taking shall be paid to Landlord, and Landlord,
at Landlord's own expense, shall to the extent of the net proceeds (after
deducting reasonable expenses including attorneys' and appraisers' fees) of the
award restore the unaffected part of the building to substantially the same
condition and tenability as existed prior to the taking.
E. Until said unaffected portion is restored, Tenant shall be entitled
to a proportionate abatement of rent for that portion of the premises which is
being restored and is not usable until the completion of the restoration or
until the said portion of the premises is used by Tenant, whichever occurs
sooner. Said unaffected portion shall be restored within a reasonable time but
not more than six (6) months after the taking; provided, however, if Landlord is
delayed by strike, lockout, the elements, or other causes beyond Landlord's
control, the time for completion shall be extended for a period equivalent to
the delay. Should Landlord fail to complete the restoration within the said six
(6) months or the time as extended, Tenant may elect to cancel this lease and
the term hereby granted provided such notice of election is given by Tenant to
Landlord not later than thirty (30) days after the end of said six (6) months of
time or the time as extended.
15. REQUIREMENTS OF LAW
A. Tenant at its expense shall comply with all laws, orders and
regulations of any governmental authority having or asserting jurisdiction over
the demised premises, which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the premises or the use or occupancy thereof
including, without limitation, compliance in the demised premises with New York
City Local Law No. 5/73, and all City, State and Federal laws, rules and
18
regulations on the disabled or handicapped, on fire safety and on hazardous
materials. The foregoing shall not require Tenant to do structural work but
shall require Tenant to perform work, including asbestos abatement and abatement
of any other hazardous or toxic material that may become necessary by reason of
any Tenant installation, alteration, improvement or work.
B. Tenant shall require every person engaged by him to clean any window
in the premises from the outside, to use the equipment and safety devices
required by Section 202 of the Labor Law and the rules of any governmental
authority having or asserting jurisdiction.
C. Tenant at its expense shall comply with all requirements of the New
York Board of Fire Underwriters, or any other similar body affecting the
premises and shall not use the premises in a manner which shall increase the
rate of fire insurance of Landlord or of any other tenant, over that in effect
prior to this lease. If Tenant's use of the premises increases the fire
insurance rate, Tenant shall reimburse Landlord for all such increased costs.
That the premises are being used for the purpose set forth in Article 1 hereof
shall not relieve Tenant from the foregoing duties, obligations and expenses.
16. CERTIFICATE OF OCCUPANCY
Tenant will at no time use or occupy the premises in violation of any
certificate of occupancy issued for or statute governing the use of the
building. The statement in this lease of the nature of the business to be
conducted by Tenant shall not be deemed to constitute a representation or
guaranty by Landlord that such use is lawful or permissible in the premises
under the certificate of occupancy for the building or any such statute.
17. POSSESSION
If Landlord shall be unable to give possession of the premises on the
commencement date of the term because of the retention of possession of any
occupant thereof, alteration or construction work, or for any other reason,
except as hereinafter provided, Landlord shall not be subject to any liability
for such failure. In such event, this lease shall stay in full force and effect,
without extension of its term. However, the rent hereunder shall not commence
until the demised premises are available for occupancy by Tenant. If delay in
possession is due to work, changes or decorations being made by or for Tenant,
or is otherwise caused by Tenant, there shall be no rent abatement and the rent
shall commence on the date specified in this lease. If permission is given to
Tenant to occupy the demised premises or other premises prior to the date
specified as the commencement of the term, such occupancy shall be deemed to be
pursuant to the terms of this lease, except that the parties shall separately
agree as to the obligation of Tenant to pay rent for such occupancy. The
provisions of this Article are intended to constitute an "express provision to
the contrary" within the meaning of Section 223(a), New York Real Property Law.
18. QUIET ENJOYMENT
Landlord covenants that if Tenant pays the rent and additional rent and
performs all of Tenant's other obligations under this lease, Tenant may
peaceably and quietly enjoy the demised premises, subject to the terms,
covenants and conditions of this lease and to the Master Lease and other
Superior Interests.
19. RIGHT OF ENTRY
Tenant shall permit Landlord to erect and maintain pipes and conduits
in and through the demised premises. Landlord or its agents shall have the right
to enter or pass through the demised premises at all times, by master key, by
reasonable force or otherwise, to examine the same, to exhibit the space to
prospective tenants, purchasers, investors and lenders, and to make such
repairs, installations, alterations or additions as to the building or the
demised premises as may be required by law or as Landlord may deem necessary or
desirable, and to take into and store within and upon the demised premises all
material that may be used in connection with any such repair, installation,
alteration or addition work. Such entry, storage and work in connection with any
such repair, installation, alteration or addition shall not constitute an
eviction (whether actual or constructive) of Tenant in whole or in part or
breach of the covenant of quiet enjoyment, shall not be grounds for any
abatement of rent, and shall not impose any liability on Landlord to Tenant by
reason of inconvenience or injury to Tenant's business or to the demised
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premises. Landlord shall have the right at any time, without the same
constituting an actual or constructive eviction, and without incurring any
liability to Tenant, to change the arrangement and/or location of entrances or
passageways, windows, corridors, elevators, stairs, toilets, or other public
parts of the building, and to change the name or number by which the building is
known.
20. VAULT SPACE
Anything contained in any plan or blueprint to the contrary
notwithstanding, no vault or other space not within the building property line
is demised hereunder. Any use of such space by Tenant shall be deemed to be
pursuant to a license, revocable at will by Landlord, without diminution of the
rent payable hereunder. If Tenant shall use such vault space, any fees, taxes or
charges made by any governmental authority for such space shall be paid by
Tenant.
21. INDEMNITY
Tenant shall defend, indemnify and hold harmless Landlord, its agents,
officers, directors, shareholders, partners, principals, employees and tenants
in common (whether disclosed or undisclosed) (hereinafter collectively the
"Landlord Parties") from and against any and all claims, demands, liability,
losses, damages, costs and expenses (including reasonable attorneys' fees and
disbursements) arising from or in connection with: (a) any breach or default by
Tenant in the full and prompt payment and performance of Tenant's obligations
hereunder; (b) the use or occupancy or manner of use or occupancy of the demised
premises by Tenant or any person claiming under or through Tenant; (c) any act,
omission or negligence of Tenant or any of its subtenants, assignees or
licensees or its or their partners, principals, directors, officers, agents,
invitees, employees, guests, customers or contractors during the term hereof;
(d) any accident, injury or damage occurring in or about the demised premises
during the term hereof; (e) the performance by Tenant of any alteration in the
demised premises including, without limitation, Tenant's failure to obtain any
permit, authorization or license or failure to pay in full any contractor,
subcontractor or materialmen performing work on such alteration; and (f)
mechanics lien filed, claimed or asserted in connection with any alteration or
any other work, labor, services or materials done for or supplied to, or claimed
to have been done for or supplied to, or claimed to have been done for or
supplied to Tenant, or any person claiming through or under Tenant. If any
claim, action or proceeding is brought against any of the Landlord Parties for a
matter covered by this indemnity, Tenant, upon notice from the indemnified
person or entity, shall defend such claim, action or proceeding with counsel
reasonably satisfactory to Landlord and the indemnified person or entity. The
provisions of this Article shall survive the expiration or sooner termination of
this lease.
22. LANDLORD'S LIABILITY
This lease and the obligations of Tenant hereunder shall in no way be
affected because Landlord is unable to fulfill any of its obligations or to
supply any service (e.g., heat, electricity, air conditioning (if Landlord is
obligated hereunder to furnish the same), elevators, water), by reason of strike
or other cause not within Landlord's control. Landlord shall have the right,
without incurring any liability to Tenant, to stop any service because of
accident or emergency, or for repairs, alterations or improvements, necessary or
desirable in the judgment of Landlord to the building or the demised premises,
until such repairs, alterations or improvements shall have been completed.
Landlord shall not be liable to Tenant or anyone else, for any loss or damage to
person, property or business, unless due to the negligence of Landlord nor shall
Landlord be liable for any latent defect in the demised premises or the
building. Landlord or its agents shall not be liable for any damage to property
of Tenant or of others entrusted to employees of the building nor for the loss
of or damage to any property of Tenant by theft or otherwise. Landlord or its
agents shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling ceilings, falling plaster, steam, gas,
electricity, water, rain or snow or leaks from any part of said building or from
the pipes, appliances or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause or whatsoever
nature, including but not limited to the making or repairs and improvements,
unless caused by or due to the negligence of Landlord, its agents, servants or
employees; nor shall Landlord or its agents be liable for any such damage caused
by other tenants or persons in said building or caused by operations in
construction of any private, public or quasi public work; nor shall Landlord be
liable for any latent defect in the demised premises or in the building. Tenant
shall give immediate notice to Landlord in case of fire or accidents in the
demised premises or in the building or of defects therein or in any fixtures or
equipment. TENANT AGREES TO LOOK SOLELY TO LANDLORD'S ESTATE AND INTEREST IN THE
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LAND AND BUILDING, OR THE LEASE OF THE BUILDING OR OF THE LAND AND BUILDING, AND
THE DEMISED PREMISES, FOR THE SATISFACTION OF ANY RIGHT OR REMEDY OF TENANT FOR
THE COLLECTION OF A JUDGMENT (OR OTHER JUDICIAL PROCESS) REQUIRING THE PAYMENT
OF MONEY BY LANDLORD, IN THE EVENT OF ANY LIABILITY BY LANDLORD, AND NO OTHER
PROPERTY OR ASSETS OF LANDLORD SHALL BE SUBJECT TO LEVY, EXECUTION OR OTHER
ENFORCEMENT PROCEDURE FOR THE SATISFACTION OF TENANT'S REMEDIES UNDER OR WITH
RESPECT TO THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER, OR
TENANT'S USE AND OCCUPANCY OF THE DEMISED PREMISES OR ANY OTHER LIABILITY OF
LANDLORD TO TENANT (EXCEPT FOR NEGLIGENCE, IN WHICH CASE TENANT MAY ALSO LOOK TO
THE PROCEEDS OF ANY INSURANCE CARRIED BY LANDLORD AND NOT PAYABLE UNDER
INSURANCE TO BE MAINTAINED BY TENANT PURSUANT TO THE TERMS HEREOF). IN NO EVENT
SHALL TENANT BE ENTITLED TO MAKE, NOR SHALL TENANT MAKE, ANY CLAIM, AND TENANT
HEREBY WAIVES ANY CLAIM, FOR MONEY DAMAGES (NOR SHALL TENANT CLAIM ANY MONEY
DAMAGES BY WAY OF SET-OFF, COUNTERCLAIM OR DEFENSE) BASED UPON ANY CLAIM OR
ASSERTION BY TENANT THAT LANDLORD HAS UNREASONABLY WITHHELD OR UNREASONABLY
DELAYED ITS CONSENT OR APPROVAL TO A PROPOSED ASSIGNMENT OR SUBLETTING AS
PROVIDED FOR IN THIS LEASE. TENANT'S SOLE REMEDY SHALL BE AN ACTION OR
PROCEEDING TO ENFORCE ANY SUCH PROVISION, OR FOR SPECIFIC PERFORMANCE,
INJUNCTION OR DECLARATORY JUDGMENT.
23. CONDITION OF PREMISES
Tenant expressly acknowledges that it has inspected the demised
premises and is fully familiar with the physical condition thereof. Tenant
agrees to accept the demised premises in their "as is" condition. Tenant
acknowledges that Landlord (i) has made no representation respecting the
physical condition of the demised premises, including the existence or
non-existence of any hazardous substances, any defects or other matters
concerning their physical condition and (ii) shall have no obligation to do any
work in and to the demised premises in order to make them suitable and ready for
occupancy and use by Tenant.
24. SERVICES
Landlord shall provide no services, except as specifically set forth in
this lease. Tenant acknowledges that it has been advised that the cleaning
contractor for the building may be a subdivision or affiliate of Landlord.
Tenant agrees to employ said contractor, or such other contractor as Landlord
may from time to time designate, for any waxing, polishing and other maintenance
work in or to the demised premises and Tenant's furniture, fixtures and
equipment, provided that the prices charged by said contractor are comparable to
the prices charged by other contractors for the same work. Tenant agrees that it
shall not employ any other cleaning and maintenance contractor, nor any
individual, firm or organization for such purpose without Landlord's prior
written consent. If Landlord and Tenant cannot agree on whether the prices being
charged by the contractor designated by the Landlord are comparable to those
charged by other contractors, Landlord and Tenant shall each obtain two bona
fide bids for such work from reputable contractors, and the average of the four
bids thus obtained shall be the standard of comparison. Landlord shall not be
obligated to provide cleaning services in excess of the specifications set forth
in Exhibit B annexed hereto and made part hereof.
25. JURY WAIVER, DAMAGES
THE PARTIES HERETO HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW,
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF
SUCH PARTIES AGAINST THE OTHER WITH RESPECT TO 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 DEMISED PREMISES, OR FOR THE
ENFORCEMENT OF ANY REMEDY WHETHER PURSUANT TO STATUTE, IN CONTRACT OR TORT, AND
IRRESPECTIVE OF THE NATURE OR BASIS OF THE CLAIM INCLUDING BREACH OF AN
OBLIGATION TO MAKE ANY PAYMENT, FRAUD, DECEIT, MISREPRESENTATION OF FACT,
FAILURE TO PERFORM ANY ACT, NEGLIGENCE, MISCONDUCT OF ANY NATURE OR VIOLATION OF
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STATUTE, RULE, REGULATION OR ORDINANCE. IF LANDLORD COMMENCES AGAINST TENANT ANY
SUMMARY PROCEEDING OR OTHER ACTION TO RECOVER POSSESSION OF THE DEMISED PREMISES
OR TO RECOVER ANY RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF WHATEVER
NATURE OR DESCRIPTION IN ANY SUCH PROCEEDING OR ACTION. NO DAMAGES SHALL BE
AWARDED AND TENANT HEREBY WAIVES ANY CLAIM FOR DAMAGES (WHETHER ACTUAL,
COMPENSATORY, CONSEQUENTIAL, SPECIAL OR PUNITIVE) IN ANY ACTION OR PROCEEDING
(WHETHER JUDICIAL OR AN ARBITRATION) RELATING TO LANDLORD'S WITHHOLDING,
DELAYING OR CONDITIONING ANY CONSENT OR APPROVAL OR THE REASONABLENESS OF ANY
SUCH WITHHOLDING, DELAY OR CONDITION.
26. NO WAIVER, ETC.
No act or omission of Landlord or its agents shall constitute an actual
or constructive partial or total eviction or give rise to a right of Tenant to
terminate this Lease or receive an abatement of any portion of its rent, or to
be relieved of any other obligation hereunder or to be compensated for any loss
or injury suffered by it, except as otherwise explicitly set forth herein. In
the event that any payment herein provided for by Tenant to Landlord shall
become overdue for a period in excess of ten (10) days, then at Landlord's
option a "late charge" shall become due and payable to Landlord, as additional
rent, from the date it was due until payment is made at the following rates: for
individual and partnership Tenants, said late charge shall be computed at the
maximum legal rate of interest; for corporate or governmental entity Tenants the
late charge shall be computed at two (2%) percent per month unless there is an
applicable maximum legal rate of interest which then shall be used. No act or
omission of Landlord or its agents shall constitute acceptance of a surrender of
the demised premises, except a writing signed by Landlord. The delivery of keys
to Landlord or its agents shall not constitute a termination of this lease or a
surrender of the demised premises. Acceptance by Landlord of less than the rent
herein provided shall at Landlord's option be deemed on account of earliest rent
remaining unpaid. No endorsement on any check, or letter accompanying rent,
shall be deemed an accord and satisfaction, and such check may be cashed without
prejudice to Landlord. No waiver of any provision of this lease shall be
effective, unless such waiver be in writing signed by Landlord. This lease
contains the entire agreement between the parties, and no modification thereof
shall be binding unless in writing and signed by the party concerned. Tenant
shall comply with the rules and regulations set forth in the Rider attached
hereto and made a part hereof, and any reasonable modifications thereof or
additions thereto. Landlord shall not be liable to Tenant for the violation of
such rules and regulations by any other tenant. Failure of Landlord to enforce
any provision of this lease, or any rule or regulation, shall not be construed
as the waiver of any subsequent violation of a provision of this lease, or any
rule or regulation. This lease shall not be affected by nor shall Landlord in
any way be liable for the closing, darkening or bricking up of windows in the
demised premises, for any reason, including as the result of construction on any
property of which the demised premises are not a part or by Landlord's own acts.
27. OCCUPANCY AND USE BY TENANT
A. Tenant acknowledges that its continued occupancy of the demised
premises, and the regular conduct of its business therein, are of utmost
importance to the Landlord in the renewal of other leases in the building, in
the renting of vacant space in the building, in the providing of electricity,
air conditioning, steam and other services to the tenants in the building, and
in the maintenance of the character and quality of the tenants in the building.
Tenant therefore covenants and agrees that it will occupy the entire demised
premises, and will conduct its business therein in the regular and usual manner,
throughout the term of this lease. Tenant acknowledges that Landlord is
executing this lease in reliance upon these covenants, and that these covenants
are a material element of consideration inducing the Landlord to execute this
lease. Tenant further agrees that if it vacates the demised premises or fails to
so conduct its business therein, at any time during the term of this lease,
without the prior written consent of the Landlord, then all rent and additional
rent reserved in this lease from the date of such breach to the expiration date
of this lease shall become immediately due and payable to Landlord.
B. The parties recognize and agree that the damage to Landlord
resulting from any breach of the covenants in paragraph A hereof will be
extremely substantial, will be far greater than the rent payable for the balance
of the term of this lease, and will be impossible of accurate measurement. The
parties therefore agree that in the event of a breach or threatened breach of
the said covenants, in addition to all of Landlord's other rights and remedies,
at law or in equity or otherwise, Landlord shall have the right of injunction to
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preserve Tenant's occupancy and use. The words "become vacant or deserted" as
used elsewhere in this lease shall include Tenant's failure to occupy or use as
by this Article required.
C. If Tenant breaches either of the covenants in paragraph A above, and
this lease shall be terminated because of such default, then, in addition to
Landlord's right of reentry, restoration, preparation for and rerental, and
anything elsewhere in this lease to the contrary notwithstanding, Landlord shall
retain its right to judgement on and collection of Tenant's aforesaid obligation
to make a single payment to Landlord of a sum equal to the total of all rent and
additional rent reserved for the remainder of the original term of this lease,
subject to future credit or repayment to Tenant in the event of any rerenting of
the demised premises by Landlord, after first deducting from rerental income all
expenses incurred by Landlord in reducing to judgment or otherwise collecting
Tenant's aforesaid obligation, and in obtaining possession of restoring,
preparing for and re-letting the demised premises. In no event shall Tenant be
entitled to a credit or repayment for rerental income which exceeds the sums
payable by Tenant hereunder or which covers a period after the original term of
this lease.
D. Tenant shall not obstruct or permit the obstruction of the
light, halls, areas, roof, stairway or entrances to the building, and will not
affix, erect or inscribe any signs, projections, awnings, signals or
advertisements of any kind to any part of the demised premises including the
inside or outside of the windows or doors thereof and will not paint the outside
of the doors thereof or the inside or outside of the windows thereof unless and
until the style, size, color, construction and location thereof have been
approved in writing by Landlord. Landlord shall have the right to withdraw such
approval at any time and to require Tenant to remove any such signs,
projections, awnings, signals or advertisements. Landlord also reserves to
itself the sole right to designate the person, firm or corporation which shall
do the work of lettering and erecting of any and all signs to be affixed to the
demised premises or the building. In the event that said work is done by Tenant
through any person, firm or corporation, other than that designated by Landlord,
Landlord is hereby given the right to remove said signs without being liable to
Tenant by reason thereof and to charge the cost of so doing to Tenant as
additional rent payable on the first day of the next following month, or at
Landlord's option, on the first day of any subsequent month.
28. NOTICES
Any xxxx, notice or demand from Landlord to Tenant, may be delivered
personally at the demised premises or sent by registered or certified mail. Such
xxxx, notice or demand shall be deemed to have been given at the time of
delivery or mailing. Any notice from Tenant to Landlord must be in writing and
sent by registered or certified mail to the last address designated in writing
by Landlord and shall be deemed to have been given when received.
29. WATER
Tenant shall pay the amount of Landlord's cost for all water used by
Tenant for any purpose other than ordinary lavatory uses, and any sewer rent or
tax based thereon. Landlord may install a water meter to measure Tenant's water
consumption for all purposes and Tenant agrees to pay for the installation and
maintenance thereof and for water consumed as shown on said meter. If water is
made available to Tenant in the building or the demised premises through a meter
which also supplies other premises, or without a meter, then Tenant shall pay to
Landlord a reasonable charge per month for water.
30. SPRINKLER SYSTEM
If there shall be a "sprinkler system" in the demised premises for any
period during this lease, Tenant shall pay a reasonable charge per month, for
sprinkler supervisory service. If such sprinkler system is damaged by any act or
omission of Tenant or its agents, employees, licensees or visitors, Tenant shall
restore the system to good working condition at its own expense. If the New York
Board of Fire Underwriters, the New York Fire Insurance Exchange, the Insurance
Services Office or any governmental authority requires the installation or any
alteration to a sprinkler system by reason of Tenant's occupancy or use of the
demised premises, including any alteration necessary to obtain the full
allowance for a sprinkler system in the fire insurance rate of Landlord, or for
any other reason, Tenant shall make such installation or alteration promptly,
and at its own expense.
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31. HEAT, AIR-CONDITIONING, ELEVATOR, ETC.
A. Landlord shall provide elevator service during all usual business
hours including Saturdays until 1 P.M., except on Sundays, State holidays,
Federal holidays, or Building Service Employees Union Contract holidays;
provided, however, at least one (1) passenger or freight elevator shall be
available on a call basis at all times. Landlord shall furnish heat to the
demised premises during the same hours on the same days in the cold season in
each year. Landlord shall cause the demised premises to be kept clean in
accordance with the cleaning specifications set forth on Exhibit B annexed
hereto and made part hereof, provided they are kept in order by Tenant.
Landlord, its cleaning contractor and their employees shall have after-hours
access to the demised premises and the use of Tenant's light, power and water in
the demised premises as may be reasonably required for the purpose of cleaning
the demised premises. Landlord may remove Tenant's extraordinary refuse from the
building and Tenant shall pay the cost thereof. If the elevators in the building
are manually operated, Landlord may convert to automatic elevators at any time,
without in any way affecting Tenant's obligations hereunder.
B. During the term of this lease, Tenant may use any air-conditioning
equipment located in the demised premises. Landlord shall at Tenant's expense,
inspect, maintain, repair and replace as necessary any such equipment and shall
xxxx Tenant for each such repair and replacement work performed by or on behalf
of Landlord at rates that are competitive in the market and Tenant shall pay the
same upon demand as additional rent hereunder. All such equipment is and shall
remain the property of Landlord. Tenant shall not abuse or use any such
equipment, except in accordance with the instructions that may accompany such
equipment and the design and performance specifications therefor. Tenant shall
reimburse Landlord upon demand for any damage to such equipment caused by Tenant
or any invitee of Tenant and for any replacement equipment made necessary by
reason of Tenant's breach of the covenant contained in the preceding sentence.
This obligation shall survive the expiration or earlier termination of the term
hereof. Notwithstanding the preceding provisions of this paragraph, if
air-conditioning is provided to the demised premises by means of a central
system or package or other units that also provide air-conditioning to any
portion of the building other than the demised premises, Landlord shall
maintain, repair and replace the same as hereinabove provided but the charges
therefor shall be prorated among all persons who are the recipients of such
service based upon the ratio of rentable square feet leased to each such
recipient of service and the aggregate rentable square feet serviced by such
equipment. For the purposes of this paragraph, rentable square feet shall be
determined pursuant to standards then being applied throughout the building by
Landlord for new leases. In any case where Landlord is providing
air-conditioning or if Landlord is providing chilled water or condensor water
for air-conditioning units serving only the demised premises, Landlord shall
supply such service between May 15, and October 15, each year throughout the
term and Tenant shall reimburse Landlord, in accordance with Article 3 of this
lease, for electricity consumed by the equipment.
C. In no event shall Landlord be required to furnish heat,
air-conditioning or ventilation during hours other than those as set forth in
paragraphs A or B above, as applicable; provided, however, that Landlord shall
provide after-hours air-conditioning or after-hours heating at Landlord's then
existing schedule of rates for overtime air-conditioning and after-hours heating
for tenants in the Building, provided that Tenant shall give notice to Landlord,
requesting such after-hours air-conditioning or heating, prior to 3:00 p.m. in
the case of after hours service on weekdays and prior to 1:00 p.m. on Fridays in
the case of after-hours service on weekends.
D. Tenant shall be permitted access to the demised premises on a
twenty-four hour per day, seven day a week basis, subject to emergencies,
requirements of law and the provisions of this lease.
32. SECURITY DEPOSIT
A. Tenant has deposited with Landlord the sum of $7,200.00 as security
for the performance by Tenant of the terms of this lease. Landlord may use any
part of the security to satisfy any default of Tenant and any expenses arising
from such default, including but not limited to any damages or rent deficiency
before or after re-entry by Landlord. Tenant shall, upon demand, deposit with
Landlord the full amount so used, in order that Landlord shall have the full
security deposit on hand at all times during the term of this lease. If Tenant
shall comply fully with the terms of this lease, the security shall be returned
to Tenant after the date fixed as the end of this lease. In the event of a sale
or Lease of the building containing the demised premises, Landlord may transfer
the security to the purchaser or tenant, and Landlord shall thereupon be
released from all liability for the return of the security. This provision shall
24
apply to every transfer or assignment of the security to a new Landlord. Tenant
shall no legal power to assign or encumber the security herein described.
B. Landlord may, in its sole discretion, hold such security in an
interest-bearing savings account, in which case Tenant shall be entitled to the
interest earned thereon annually, less the maximum administrative fee allowed by
law to which Landlord shall be entitled under law.
C. It is agreed that in the event Tenant defaults in respect of any of
the terms, provisions and conditions of this lease, including, but not limited
to, the payment of fixed annual rent and additional rent, Landlord may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any fixed annual rent and additional rent 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 in respect of
any of the terms, covenants and conditions of this lease, including, but not
limited to, any damages or deficiency in the reletting of the demised premises,
whether such damages or deficiency accrued before or after summary proceedings
or other re-entry by Landlord. In the event that Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this lease, the security deposit shall be returned to Tenant after the date
fixed as the end of the Lease and after delivery of entire possession of the
demised premises to Landlord in the condition required hereunder. In the event
of a sale of the land and building or leasing of the building, Landlord shall
have the right to transfer the security to the vendee or lessee and Landlord
shall thereupon be released by Tenant from all liability for the return of such
security; and Tenant agrees to look solely to the new owner for the return of
said security, and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new owner. Tenant further
covenants that it shall not assign or encumber or attempt to assign or encumber
the monies or the letter to credit deposited herein as security and that neither
Landlord nor its successors or assigns shall be bound be any such assignment,
encumbrance, attempted assignment or attempted encumbrance. In the event
Landlord applies or retains any portion or all of the security deposited, Tenant
shall forthwith restore the amount so applied or retained so that at all times
the amount deposited shall be the amount herein above then required to be
maintained as the security deposit, exclusive of accrued interest.
33. RENT CONTROL
In the event the fixed annual rent or additional rent or any part
thereof provided to be paid by Tenant under the provisions of this lease during
the demised term shall become uncollectible or shall be reduced or required to
be reduced or refunded by virtue of any Federal, State, County or City law,
order or regulation, or by any direction of a public officer or body pursuant to
law, or the orders, rules, codes or regulations of any organization or entity
formed pursuant to law, whether such organization or entity be public or
private, then Landlord, at its option, may at anytime thereafter terminate this
lease, by not less than thirty (30) days' written notice to Tenant, on a date
set forth in said notice, in which event this lease and the term hereof shall
terminate and come to an end on the date fixed in said notice as if the said
date were the date originally fixed herein for the termination of the demised
term. Landlord shall not have the right so to terminate this lease if Tenant
within such period of thirty (30) days shall in writing lawfully agree that the
rentals herein reserved are a reasonable rental and agree to continue to pay
said rentals, and if such agreement by Tenant shall then be legally enforceable
by Landlord.
34. SHORING
Tenant shall permit any person authorized to make an excavation on land
adjacent to the building containing the demised premises to do any work within
the demised premises necessary to preserve the wall of the building from injury
or damage, and Tenant shall have no claim against Landlord for damages or
abatement of rent by reason thereof.
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35. EFFECT OF CONVEYANCE, ETC.
If the building containing the demised premises shall be sold,
transferred or leased, or the lease thereof transferred or sold, Landlord shall
be relieved of all future obligations and liabilities hereunder and the
purchaser, transferee or tenant of the building shall be deemed to have assumed
and agreed to perform all such obligations and liabilities of Landlord
hereunder. In the event of such sale, transfer or lease, Landlord shall also be
relieved of all existing obligations and liabilities hereunder, provided that
the purchaser, transferee or tenant of the building assumes in writing such
obligations and liabilities.
36. RIGHTS OF SUCCESSORS AND ASSIGNS
This lease shall bind and inure to the benefit of the heirs, executors,
administrators, successors, and, except as otherwise provided herein, the
assigns of the parties hereto. If any provision of any Article of this lease or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of that Article, or the application of
such provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each provision
of said Article and of this lease shall be valid and be enforced to the fullest
extent permitted by law.
37. CAPTIONS
The captions herein are inserted only for convenience, and are in no
way to be construed as a part of this lease or as a limitation of the scope of
any provision of this lease.
38. LEASE SUBMISSION
Landlord and Tenant agree that this lease is submitted to Tenant on the
understanding that it shall not be considered an offer and shall not bind
Landlord in any way unless and until (i) Tenant has duly executed and delivered
duplicate originals thereof to Landlord and (ii) Landlord has executed and
delivered one of said originals to Tenant.
39. ELEVATORS AND LOADING
A. There shall be no major loading or unloading in the building between
7:30 a.m. and 6:00 p.m. or on any Saturday, Sunday or holiday. Tenant
acknowledges it has been advised that the freight elevators servicing the
building can be used from 7:30 a.m. to 4:45 p.m. on business days only for less
than truck load deliveries which will not unreasonably interfere with use of the
freight elevator by or on behalf of Landlord and the other tenants of the
building.
B. It is the intention of Landlord to maintain in the building,
operatorless automatic control elevators. However, Landlord may, at its option,
maintain in the building either manually operated elevators or operatorless
automatic control elevators or part one and part the other, and Landlord shall
have the right from time to time during said term, to change, in whole or in
part, from one to the other without notice to Tenant and without in any way
constituting an eviction of Tenant or affecting the obligations of Tenant
hereunder or incurring any liability to Tenant hereunder.
40. BROKERAGE
Tenant represents and warrants that it neither consulted nor negotiated
with any broker or finder with regard to the demised premises other than Xxxxxxx
& Xxxxxxxxx, Inc. and Manhattan Office Space (Xxxx Xxxxxxx). Tenant agrees to
indemnify, defend and save Landlord harmless from and against any claims for
fees or commissions from anyone other than Xxxxxxx & Xxxxxxxxx, Inc. and
Manhattan Office Space (Xxxx Xxxxxxx) with whom Tenant has dealt in connection
with the demised premises or this lease. Landlord agrees to pay any commission
or fee owing to the aforesaid Xxxxxxx & Xxxxxxxxx, Inc. and Manhattan Office
Space (Xxxx Xxxxxxx) pursuant to separate agreements with them. Nothing in this
Article 40 shall be construed to be a third party beneficiary contract.
26
41. ARBITRATION
In each case specified in this lease in which resort to arbitration
shall be required, such arbitration (unless otherwise specifically provided in
other Sections of this Lease) shall be in Manhattan in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and the
provisions of this lease, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
42. INSURANCE
The following requirements (collectively, the "Insurance Requirements")
shall be complied with by Tenant at all times during the term hereof:
A. At all times during the term hereof, Tenant shall maintain, at
Tenant's expense, the following insurance coverage:
(i) all risk property insurance, including theft and, if
applicable, boiler and machinery coverage, written at replacement cost value in
an adequate amount to avoid coinsurance and a replacement cost endorsement
insuring Tenant's trade fixtures, furnishings, equipment and all items of
personal property of Tenant and including property of Tenant's customers or
clients, as the case may be, located in the demised premises;
(ii) broad form commercial general liability insurance written
on a per occurrence basis with a per occurrence limit of not less than
$2,000,000 and with other limits reasonably satisfactory to Landlord;
(iii) business interruption insurance covering risk of loss
due to the occurrence of any of the hazards covered by the insurance to be
maintained by Tenant described in paragraph A(i) with coverage in a face amount
of not less than the aggregate amount, for a period of 12 months following the
insured-against peril, of 100% of all fixed annual rent and additional rent to
be paid by Tenant under this Lease;
(iv) worker's compensation insurance and employer's liability
coverage in statutory limits, and New York State disability insurance as
required by law, covering all employees; and
(v) such other coverage as Landlord may reasonably require
with respect to the demised premises, its use and occupancy and the conduct or
operation of business therein.
Landlord may, from time to time, but not more frequently than
once every year, adjust the minimum limits set forth above.
B. All insurance policies to be maintained as set forth above (i) shall
be issued by companies of recognized responsibility, licensed and admitted to do
business in the State of New York, reasonably acceptable to Landlord, and
maintaining a rating of A-/XII or better in Best's Insurance
Reports-Property-Casualty (or an equivalent rating in any successor index
adopted by Best's or its successor), (ii) shall provide that they may not be
canceled or modified unless Landlord and all additional insureds and loss payees
thereunder are given at least thirty (30) days prior written notice of such
cancellation or modification, (iii) shall name, as additional insureds,
Landlord, the managing agent of the building and any other person or entity
whose name and address shall have been furnished to Tenant and (iv) shall be
primary and non-contributory in all respects. All policies providing fire and
extended coverage property insurance coverage pursuant to paragraph A(i) shall
name Landlord as loss payee with respect to improvements and alterations, and
shall name Tenant as loss payee with respect to Tenant's property.
C. Prior to the commencement date of the term hereof, Tenant shall
deliver to Landlord certificates of insurance for the insurance coverage
required by paragraph A and, if required by Landlord, copies of the policies
therefore, in each case in form and providing for deductibles reasonably
satisfactory to Landlord. Tenant shall procure and pay for renewals of such
insurance from time to time before the expiration thereof, and Tenant shall
deliver to Landlord certificates of renewal at least thirty (30) days before the
expiration of any existing policy. If Tenant fails to procure or maintain any
insurance required by this Lease and to pay all premiums and charges therefor,
Landlord may (but shall not be obligated to) pay the same, and Tenant shall
reimburse Landlord, within twenty (20) days after demand, for all such sums paid
27
by Landlord. Any such payment shall not cure or waive any default by Tenant in
the performance of its obligations hereunder, nor shall the foregoing right of
Landlord to make such payment in any way limit, reduce, diminish or impair the
rights of Landlord under the terms of this Lease or at law or in equity arising
as a result of any such default.
D. Tenant shall not carry separate or additional insurance, concurrent
in form or contributing in the event of any loss or damage with any insurance
required to be obtained by Tenant under this Lease unless the parties required
by paragraph B above to be named as additional insureds or loss payees
thereunder are so named. Tenant may carry any insurance coverage required of it
hereunder pursuant to blanket policies of insurance so long as the coverage
afforded Landlord and the other additional insureds or loss payees thereunder,
as the case may be, shall not be less than the coverage that would be provided
by direct policies.
E. Tenant agrees to include, if obtainable at no additional cost, in
its fire insurance policy or policies on its furniture, furnishings, fixtures
and other property removable by Tenant under the provisions of its lease of
space in the building appropriate clauses pursuant to which the insurance
company or companies (i) waive the right of subrogation against Landlord and/or
any tenant of space in the building with respect to losses payable under such
policy or policies and/or (ii) agree that such policy or policies shall not be
invalidated should the insured waive in writing prior to a loss any or all right
of recovery against any party for losses covered by such policy or policies. But
should any additional premium be exacted for any such clause or clauses, Tenant
shall be released from the obligation hereby imposed unless Landlord or the
other tenants shall agree to pay such additional premium.
43. CHANGE OF LOCATION
A. Tenant covenants and agrees that Landlord shall have the absolute
and unqualified right, upon notice to Tenant, to designate as the demised
premises that part of any other floor in the building that approximately
corresponds to the premises demised hereunder; provided, however, that (a) such
substituted space (hereinafter called "Substituted Space") shall be
substantially the equivalent in the appearance of the demised premises upon
completion of Landlord's work, if any, to make the Substitute Space ready for
Tenant's occupancy and (b) Landlord shall move Tenant to the Substituted Space
at Landlord's cost. Such notice shall specify and designate the Substituted
Space so substituted for the demised premises. Notwithstanding such substitution
of space, this lease and all the terms, provisions, covenants and conditions
contained in this lease shall remain and continue in full force and effect,
except that the demised premises shall be and be deemed to be such substituted
space, with the same force and effect as if the Substituted Space were
originally specified in this lease as the premises demised hereunder.
B. In the event of the substitution of space as provided in paragraph A
above, Tenant, upon three (3) months' prior written notice given by Landlord to
Tenant, shall move to the Substituted Space at Landlord's expense, and upon
failure of Tenant to so move to the Substituted Space, Landlord may, as Tenant's
agent, remove Tenant from the demised premises to the Substituted Space. Failure
of Tenant to move to the Substituted Space pursuant to this Article shall be
deemed a substantial breach of this lease.
C. Following such substitution of space (pursuant to this Article) if
any, Landlord and Tenant shall, promptly at the request of either party, execute
and deliver an agreement in recordable form setting forth such substitution of
space and the effective date thereof.
44. LATE CHARGES
If Tenant shall fail to pay all or any part of any installment of fixed
annual rent or additional rent for more than ten (10) days after the same shall
have become due and payable, Tenant shall pay, upon demand, as additional rent
hereunder to Landlord a late charge of four ($.04) cents for each dollar of the
amount of such fixed annual rent or additional rent which shall not have been
paid to Landlord within such ten (10) days after becoming due and payable.
Tenant acknowledges that the payment of rent after the date when first due shall
result in loss and injury to Landlord the exact amount of which is not
susceptible of reasonable calculation and that the aforesaid amount of late
charge represents a reasonable estimate of such losses and injury under the
circumstances, especially after taking into account the grace period hereby
afforded Tenant before such late charge is to be imposed. The late charge
payable pursuant to this Article 44 shall be without prejudice to any of
Landlord's rights and remedies hereunder at law and equity for non-payment or
28
late payment of rent or other sums and in addition to any such rights and
remedies, including the right to institute and prosecute a proceeding under
Article 7 of the Real Property Actions and Proceedings Law. No failure by
Landlord to insist upon the strict performance by Tenant of Tenant's obligation
to pay late charges as provided in this Article shall constitute a waiver by
Landlord of its right to enforce the provisions of this Article in any instance
thereafter occurring. The provisions of this Article shall not be construed in
any way to extend the grace periods or notice periods provided for elsewhere in
this lease.
45. ENVIRONMENTAL COMPLIANCE
A. (i) Tenant shall comply with all federal, state and local
environmental protection and regulatory laws applicable to the demised premises.
(ii) Tenant shall not use, generate, manufacture, store or
dispose of any hazardous substance on, under or about the demised premises or
the building nor transport any hazardous substance thereto. Tenant shall
immediately advise the Landlord, in writing of any and all enforcement,
clean-up, remediation, removal or other governmental or regulatory actions
instituted, completed or threatened pursuant to any applicable laws relating to
any hazardous substances; and all claims, made or threatened by any person
(including a governmental authority) against the demised premises, Tenant or
Landlord relating to any damage, injury, costs, remedial action or cost recovery
compensation arising out of or due to the existence of any hazardous substance
in or about the demised premises or the building.
B. Tenant shall defend, indemnify and hold Landlord harmless from and
against all actions, causes of action, claims, lawsuits, administrative
proceedings, hearings, judgments, awards, fines, penalties, costs (including
legal, engineers', experts', investigatory and consulting fees), damages,
remediation activities and clean-up costs, liens, and all other liabilities
incurred by Landlord whenever incurred, arising out of any Tenant's act or
failure to act resulting in (i) the existence or presence (or alleged existence
or presence) on or about the building of any hazardous substance or the release
of any hazardous substance into the environment; (ii) any personal injury or
property damage resulting from any hazardous substance in or about the building;
(iii) the violation of any federal, state or municipal environmental protection
or regulatory law; or (iv) the commencement or prosecution of any judicial or
administrative procedure arising out of any claims under any federal, state or
municipal environmental protection or regulatory law or common law cause of
action in which Landlord is named a party or in which it may intervene. The
obligations of Tenant under this paragraph B shall survive the expiration or
earlier termination of the term hereof.
C. "Hazardous substance" means any hazardous substance as defined in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. xx.xx. 9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986; hazardous waste as defined in the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. xx.xx. 6901 et seq., as any of
the foregoing may be amended or superseded; oil; petroleum product, derivative,
compound or mixture; mineral, including asbestos; chemical; gas; medical waste;
polychlorinated biphenyls (pcb's); methane; radon; radioactive material;
volatile hydrocarbons; or other material, whether naturally occurring, man-made
or the by-product of any process, which is toxic, harmful or hazardous or
acutely hazardous to the environment or public health or safety; or any other
substance the existence of which on or at any property would be the basis for a
claim for damages, clean-up costs or remediation costs, fine, penalty or lien
under any federal, state or municipal environmental protection or regulatory law
or applicable common law.
46. LEASE FULLY NEGOTIATED
In construing this lease, it shall be deemed to be a document fully
negotiated and drafted jointly by counsel to Landlord and counsel to Tenant and
the authorship of any term or provision hereof shall not be deemed germane to
its meaning. The existence or non-existence in any prior draft hereof of any
term or provision whether included herein or not shall not be relevant to the
establishment of the intent of the parties hereto or the meaning of any term or
provision hereof and may not be used as evidence to establish any such intent or
meaning.
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47. SMOKING RESTRICTIONS
Landlord hereby prohibits all smoking of cigarettes, cigars, other
tobacco products or any other substances and the use of pipes and other
paraphernalia for such purposes within the building and the premises. Without
limiting Landlord's rights under the preceding sentence, Tenant shall enforce
within the demised premises all applicable laws, rules and regulations regarding
smoking.
48. ADDITIONAL DEFINITIONS
The term "real estate taxes" shall, in addition to the items referred
to in Article 2, include assessments, impositions and levies imposed by business
special tax districts. "Business days" shall mean all days, except Saturdays,
Sundays, and all days celebrated as holidays under union contracts applicable to
the building. The words "herein," "hereof," "hereto," "hereunder" and similar
words shall be interpreted as being references to this lease as a whole and not
merely the clause, paragraph, Section or Article in which such word appears. The
term "demised premises" is used interchangeably with the term "premises". The
words "shall" and "will" are interchangeable, each imposing a mandatory
obligation upon the party to whom such verb applies. The words ""include" and
"including" shall be interpreted to mean "including, without limitation." The
word "control" and the variations thereof used in this lease shall have the
meanings ascribed to them under the Securities Act of 1933, as amended, and the
regulations promulgated under it. Wherever appropriate in this lease, personal
pronouns shall be deemed to include the other genders and the singular or plural
of any defined term or other word shall, as the context may require, be deemed
to include, as the case may be, either the singular or the plural. All Article
and paragraph and subsection references set forth herein shall, unless the
context otherwise specifically requires, be deemed references to the Articles,
paragraphs and subsections of this lease. Wherever herein Tenant is required to
comply with laws, orders and regulations of any governmental authority having or
asserting jurisdiction over the demised premises, such laws, orders and
regulations shall include, as and where applicable to the demised premises: the
Americans with Disabilities Act of 1990, Local Law 5/1973, Local Laws 16/1984,
and 16/1987, Local Law 58/1987, Local Law 76/1985 and Local Law 80/1985, as each
may be amended and any successor statutes of like or similar import. References
to Landlord as having no liability to Tenant or being without liability to
Tenant shall mean that, except as otherwise provided in this lease, Tenant is
not entitled to terminate this lease, or to claim actual or constructive
eviction, partial or total, or to receive any abatement or diminution of rent,
or to be relieved in any manner of any of its other obligations hereunder, or to
be compensated for loss or injury suffered or to enforce any other kind of
liability whatsoever against Landlord under or with respect to this lease or
with respect to tenant's use or occupancy of the demised premises.
50. SUBSTITUTE LEASE
If Tenant shall consummate a lease with Landlord in the building for
vacant space at least fifty percent (50%) larger than the premises demised
hereunder, Tenant shall have the right to cancel this lease but such
cancellation right shall be effective only upon strict compliance with the
following terms and conditions:
(a) Tenant shall notify Landlord within five (5) days after
consummating such new lease of its intention to cancel this lease. The
cancellation date shall be either: (i) within ninety (90) days of the effective
date of the new lease for larger space; or (ii) any April 30 or October 31,
during the remaining period the term of this lease.
(b) It is understood and agreed that the aforesaid cancellation right
is conditioned upon Tenant's not being in default under any of the terms,
covenants and conditions of this lease, beyond any grace period, at the date of
delivery of any such cancellation notice and on the cancellation date.
Notwithstanding any such cancellation by Tenant hereunder, Tenant shall remain
liable to cure any default under any of the terms, covenants and conditions of
this lease existing on the cancellation date. Such liability of Tenant shall
survive any such cancellation.
(c) Tenant shall vacate the premises demised hereunder and surrender
possession thereof to Landlord, in broom clean condition and otherwise in
accordance with all terms, conditions and covenants of this lease on or prior to
the cancellation date.
30
IN WITNESS WHEREOF, Landlord and Tenant have executed this lease as of
the day and year first above written.
LANDLORD:
XXXX BUILDING ASSOCIATES L.L.C.
By: Xxxxxxx & Wakefield, Inc., as Agent
By:
-----------------------------
Name:
Title:
TENANT:
AROTECH CORPORATION
By:
-----------------------------
Name:
Title:
31
EXHIBIT A
to lease
between
Xxxx Building Associates L.L.C., Landlord
and
Arotech Corporation, Tenant
Diagram of Demised Premises
EXHIBIT B
to lease
between
Xxxx Building Associates L.L.C., Landlord
and
Arotech Corporation, Tenant
Cleaning Schedule
-----------------
1. General
All flooring swept nightly.
All carpeted areas and rugs carpet-swept nightly and vacuum cleaned
weekly.
Wastepaper baskets and ashtrays emptied nightly (excluding kitchen and
kitchenette areas and all so-called "wet" garbage) and damp dusted when
necessary.
All baseboards, chair rails and trim dusted nightly.
All water fountains washed clean nightly.
2. Lavatories (other than Tenant's private and executive lavatories)
All flooring swept and washed nightly.
All basins, bowls, urinals and toilet seats (both sides) washed
nightly. All partitions, tile walls, dispensers and receptacles dusted
nightly.
Paper towel and sanitary disposal receptacles emptied and cleaned
nightly (and replenished at Tenant's expense).
3. High Dusting - Office Area
Do all high dusting approximately once a month, including the
following:
Dust all pictures, frames, charts, graphs and panel wall hangings not
reached in nightly cleaning.
Dust all vertical surfaces such as walls, partitions, ventilating
louvres and other surfaces not reached in nightly cleaning.
Dust all lighting fixtures (exterior only).
Dust all overhead pipes, sprinklers, etc.
Dust all Venetian blinds and window frames approximately once every two
months.
4. Periodic Cleaning - Office Area
Wipe clean all interior metal as necessary.
Dust all door louvres and other ventilating louvres within reach
weekly.
5. Periodic Cleaning - Lavatories (other than Tenant's private and
executive lavatories)
Machine-scrub flooring when necessary.
Wash all partitions, tile walls and enamel surfaces monthly with proper
disinfectant when necessary.
Dust exterior of lighting fixtures monthly.
6. Windows
Clean outside windows, when necessary, approximately 2 times a year, weather and
scaffold conditions permitting.
SCHEDULE A
RULES AND REGULATIONS REFERRED
TO IN THIS LEASE
1. No animals, birds, bicycles or vehicles shall be brought into or kept in
the premises. The premises shall not be used for manufacturing or
commercial repairing or for sale or display or merchandise or as a lodging
place, or for any immoral or illegal purpose, nor shall the premises be
used for a public stenographer or typist; xxxxxx or beauty shop; telephone,
secretarial or messenger service; employment, travel or tourist agency;
school or classroom; commercial document reproduction; or for any business
other than specifically provided for in the tenant's lease. Tenant shall
not cause or permit in the premises any disturbing noises which may
interfere with occupants of this or neighboring building, any cooking or
objectionable odors, or any nuisance of any kind, or any inflammable or
explosive fluid, chemical or substance. Canvassing, soliciting and peddling
in the building are prohibited, and each tenant shall cooperate so as to
prevent the same.
2. The toilet rooms and other water apparatus shall not be used for any
purposes other than those, for which they were constructed, and no
sweepings, rags, ink, chemicals or other unsuitable substances shall be
thrown therein. Tenant shall not throw anything out of doors, windows or
skylights or into hallways, stairways or elevators, nor place food or
objects on outside windowsills. Tenant shall not obstruct or cover the
halls, stairways and elevators, or use them for any purpose other than
ingress and egress to or from tenant's premises, nor shall skylights,
windows, doors and transoms that reflect or admit light into the building
be covered or obstructed n any way.
3. Tenant shall not place a load upon any floor of the premises in excess of
the load per square foot, which such floor was designed to carry and which
is allowed by law. Landlord reserves the right to prescribe the weight and
position of all safes in the premises. Business machines and mechanical
equipment shall be placed and maintained by tenant, at tenant's expense,
only with Landlord's consent and in settings approved by Landlord to
control weight, vibration, noise and annoyance. Smoking or carrying lighted
cigars, pipes or cigarettes in the elevators of the building is prohibited.
If the premises are on the ground floor of the building the tenant thereof
at its expense shall keep the sidewalks and curb in front of the premises
clean and free from ice, snow, dirt and rubbish.
4. Tenant shall not move any heavy or bulky materials into or out of the
building without Landlord's prior written consent, and then only during
such hours and in such manner as landlord shall approve. If any material or
equipment requires special handling, tenant shall employ only persons
holding a Master Rigger's License to do such work, and all such work shall
comply with all legal requirements. Landlord reserves the right to inspect
all freight to be brought into the building, and to exclude any freight
which violates any rule, regulation or other provision of this lease.
5. No sign, advertisement, notice or thing shall be inscribed, painted or
affixed on any part of the building, without the prior written consent of
Landlord. Landlord may remove anything installed in violation of this
provision, and Tenant shall pay the cost of such removal. Interior signs on
doors and directories shall be inscribed or affixed by Landlord at Tenant's
expense. Landlord shall control the color, size, style and location of all
signs, advertisement and notices. No advertising of any kind by Tenant
shall refer to the building, unless first approved in writing by Landlord.
6. No article shall be fastened to, or holes drilled or nails or screws driven
into, the ceilings, walls, doors or other portions of the premises, nor
shall any part of the premises be painted, papered or otherwise covered, or
in any way marked or broken, without the prior written consent of Landlord.
7. No existing locks shall be changed, nor shall any additional locks or bolts
of any kind be placed upon any door or window by Tenant, without the prior
written consent of Landlord. At the termination of this lease, Tenant shall
deliver to Landlord all keys for any portion of the premises or building.
Before leaving the premises at any time, Tenant shall close all windows and
close and lock all doors.
8. No Tenant shall purchase or obtain for use in the premises any spring
water, ice, towels, food, bootblacking, barbering, or other such services
furnished by any company or person not approved by Landlord. Any necessary
exterminating work in the premises shall be done at Tenant's expenses, at
such times, in such manner and by such company as Landlord shall require.
Landlord reserves the right to exclude from the building, from 6:00 p.m. to
8:00 a.m., and at all hours on Sunday and legal holidays, all persons who
do not present a pass to the building signed by Landlord. Landlord will
furnish passes to all persons reasonably designated by Tenant. Tenant shall
be responsible for the acts of all persons to whom passes are issued at
Tenant's request.
9. Whenever Tenant shall submit to Landlord any plan, agreement or other
document for Landlord's consent or approval, Tenant agrees to pay Landlord
as additional rent, on demand, and administrative fee equal to the sum of
the reasonable fees of any architect, engineer or attorney employed by
Landlord review said plan, agreement or document and Landlord's
administrative costs for same.
10. The use in the demised premises of auxiliary heating devices, such as
portable electric heaters, heat lamps or other devices whose principal
function at the time of operation is to produce space heating, is
prohibited.
In case of any conflict or inconsistency between any provisions of this lease
and any of the rules and regulations as originally or as hereafter adopted, the
provisions of this lease shall control.
