Exhibit 10.3
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STANDARD FORM OF OFFICE LEASE
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Agreement of
Lease, made as of this 1st day of May 2002, between
LONG ISLAND INDUSTRIAL GROUP LLC, having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
party of the; first part, hereinafter referred to as OWNER and/or Landlord, and
PORTA SYSTEMS CORP., having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
party of the second part, herein referred to as TENANT, Witnesseth: Owner
hereby leases to Tenant and Tenant hereby hires from Owner Suite 110
(Substantially as shown on the attached sketch)
in the building known as ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Building"), for the term of five (5) years
(or until such term shall sooner cease and expire as hereinafter provided) to
commence on the Commencement Date
and to end on the Expiration Date, both dates inclusive, at an annual
rental rate as shown on Schedule "A" annexed hereto, and made a part
hereof, which sets forth the Commencement Date, the Expiration Date and
the annual rent payable by Tenant to Landlord hereunder,
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that Tenant shall
pay the first 1st monthly installment(s) on the execution hereof (unless this
lease be a renewal)
In the event that, at the commencement of the term of this lease, or thereafter,
Tenant shall be in default in the payment of rent to Owner pursuant to the terms
of another lease with Owner or with Owner's predecessor in interest, Owner may
at Owner's option and without notice to Tenant add the amount of such arrears to
any monthly installment of rent payable hereunder and the same shall be payable
to Owner as additional rent. The parties hereto, for themselves, their heirs,
distributes, executors, administrators, legal representatives, successors and
assigns, hereby covenant as follows:
Rent: 1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy: 2. Tenant shall use and occupy demised premises for executive and
administrative offices for Tenant's telecommunications business and for light
assembly of telecommunication devices incidental thereto, and for no other
purpose.
Tenant Alterations:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent. Subject to the prior written consent of
Owner, and to the provisions of this article, Tenant at Tenant's expense, may
make alterations, installations, additions or improvements which are
non-structural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approval and certificates required by any governmental or
quasi-governmental bodies and (upon completion). certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such ▇▇▇▇▇▇▇'▇ compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien Is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty days thereafter, at Tenant's
expense, by filing the bond required by law. All fixtures and all paneling,
partitions, railings and like installations, installed in the premises at any
time, either by Tenant or by Owner on Tenants behalf, shall, upon installation
become the property of the Owner and shall remain upon and be, surrendered with
the demised premise unless Owner, by notice to Tenant no later than twenty days
prior to the date fixed as the termination of this lease, elects to relinquish
Owner's right thereto and to have them removed by Tenant, in which event the
same shall be removed from the premises by Tenant prior to the expiration of the
lease, at Tenant's expense. Nothing In this Article shall be construed to give
Owner title to or prevent Tenants removal of trade fixtures, moveable office
furniture and equipment, but upon removal of any such from the premises or upon
removal of other installations as may be required by Owner, tenant shall
immediately and at its expense, repair and restore the premises to the condition
existing prior to Installation and repair any damage to the demised premises or
the building due to such removal. All property permitted or required to be
removed, by Tenant at the end of the term remaining in the premises after
Tenant's removal shall be deemed abandoned and may, at the election of Owner,
either be retained as Owner's property or removed from the premises by Owner, at
Tenant's expense.
Maintenance and Repairs:
4. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant, Tenants subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor, service
or equipment done for or supplied to Tenant or any subtenant or arising out of
the installation, use or operation of the property or equipment of Tenant or any
subtenant. Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture and equipment.
Tenant shall promptly make, at Tenant's expense, all repairs in and to the
demised premises for which Tenant is responsible, using only the contractor for
the trade or trades in question, selected from a list of at least two
contractors per trade submitted by Owner. Any other repairs in or to the
building or the facilities and systems thereof for which Tenant is responsible
shall be performed by Owner at the Tenant's expense. Owner shall maintain in
good working order and repair the exterior and the structural portions of the
building, including the structural portions of its demised premises, and the
public portions of the building Interior and the building plumbing and
electrical systems (to the extent such systems presently exist) serving the
demised premises. Tenant agrees to give prompt notice of any defective condition
in the premises for which Owner nay be responsible hereunder. There shall be no
allowance to Tenant for diminution of rental value and no liability on the part
of Owner by reason of inconvenience, annoyance or injury to business arising
from Owner or others making repairs, alterations, additions or improvements in
or to any portion of the building or the demised premises or in and to the
fixtures, appurtenances or equipment thereof. It is specifically agreed that
Tenant shall not be entitled to any set off or reduction of rent by reason of
any failure of Owner to comply with the covenants of this or any other article
of this Lease. Tenant agrees that Tenant's sole remedy at law in such instance
will be by way of an action or damages for breach of contract. The provisions of
this Article 4 shall not apply in the case of fire or other casualty which are
dealt with in Article 9 hereof.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the labor law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting
jurisdiction.
Requirements of Law, Fire Insurance Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, Insurance
Services Office, or any similar body which shall impose any violation, order or
duty upon Owner or Tenant with respect to the demised. premises, whether or not
arising out of Tenant's use or manner of use thereof, (including Tenant's
permitted use) or, with respect to the building if arising out of Tenant's use
or manner of use of the premises or the building (including the use permitted
under the lease). Nothing herein shall require Tenant to make structural repairs
or alterations unless Tenant has, by its manner of use of the demised premises
or method of operation therein, violated any such laws, ordinances, orders,
rules, regulations or requirements with respect thereto. Tenant may, after
securing Owner to Owner's satisfaction against all damages, interest, penalties
and expenses, including, but not limited to, reasonable attorney's fees, by cash
deposit or by surety bond in an amount and in a company satisfactory to Owner,
contest and appeal any such laws, ordinances, orders, rules, regulations or
requirements provided same is done with all reasonable promptness and provided
such appeal shall not subject Owner to prosecution for a criminal offense or
constitute a default under any lease or mortgage under which Owner may be
obligated, or cause the demised premises or any part thereof to be condemned or
vacated. Tenant shall not do or permit any act or thing to be done in or to the
leased premises which is contrary to law, or which wi11 invalidate or be in
conflict with public liability, fire or other policies of insurance at my time
carried by or for the benefit of Owner with respect to the demised premises or
the building of which the demised premises form a part, or
which shall or might subject Owner to any liability or responsibility to any
person or for property damage. Tenant shall not keep anything in the demised
premises except as now or hereafter permitted by the Fire Department, Board of
Fire Underwriters, Fire Insurance Rating Organization or other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenants occupancy. Tenant shall pay all costs, expenses, fines, penalties, or
damages, which may be imposed upon Owner by reason of Tenants failure to comply
with the provisions of this article and if by reason of such failure the fire
insurance rate shall, at the beginning of this lease, or at any time thereafter,
be higher than it otherwise would be, then Tenant shall reimburse Owner, as
additional rent hereunder, for that portion of all fire insurance premium
thereafter paid by Owner which shall have been charged because of such failure
by Tenant. In any action or proceeding wherein Owner and Tenant are parties, a
schedule or "make-up" of rate for the building or demised premises issued by the
New York Fire Insurance Exchange, or other body making fire insurance rates
applicable to said premises shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's judgment, to absorb and
prevent vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner nay request.
Property Loss, Damage Reimbursement, Indemnity:
8. Owner 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 loss of or damage
to any property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence of Owner, Its agents, servants or employees. Owner
or its agents will not be liable for any such damage caused by other tenants or
persons in, upon or about said building or caused by operations in construction
of any private, public or quasi public work. If at any time any windows of the
demised premises are temporarily closed, darkened or bricked up (or permanently
closed, darkened or bricked up, if required by law) for any reason whatsoever
including, but not limited to Owner's own acts, Owner shall not he liable for
any damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefore nor abatement or diminution of rent nor shall the same
release. Tenant from its obligations hereunder nor constitute an eviction.
Tenant shall indemnify and save harmless Owner against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable attorney's fees,
paid, suffered or incurred as a result of any breach by Tenant, Tenant's agents,
contractors, employees, invitees, or licensees, of any covenant or condition of
this lease, or the carelessness, negligence or improper conduct of the Tenant,
Tenant's agents, contractors, employees, invitees or licensees. Tenant's
liability under this lease extends to the acts and omissions of any sub-tenant,
and any agent, contractor, employee, invitee or licensee of any sub-tenant. In
case any action or proceeding is brought against Owner by reason of any such
claim, Tenant upon written notice from Owner, will, at Tenant's expense, resist
or defend such action or proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner and this
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by and at the
expense of Owner and the rent, until such repair shall be substantially
exculpated, shall be apportioned from the day following the casualty according
to the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the premises shall have been
repaired and restored by Owner, subject to Owner's right to elect not to restore
the same as hereinafter provided. (d) If the demised premises are rendered
wholly unusable or (whether or not the demised premises are damaged in whole or
in part) if the building shall be so damaged that Owner shall decide to demolish
it or to rebuild it, then, in any of such events, Owner may elect to terminate
this lease by written notice to Tenant, given within 90 days after such fire or
casualty, specifying a date for the expiration of the lease, which date shall
not be more than 60 days after the giving of such notice, and upon the date
specified in such notice the term of this lease shall expire as fully and
completely as if such date were time date set forth above for the termination of
this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Landlord's rights and remedies against Tenant
under the lease provisions in effect prior to such termination, and any remit
owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions of (b) and
(c) hereof, with all reasonable expedition, subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Owner's control. After any
such casualty, Tenant shall cooperate with Owner's restoration by removing from
the premises as promptly as reasonably possible, all of Tenant's salvageable
inventory and movable equipment, furniture, and other property. Tenant's
liability for rent shall resume five (5) days after written notice from Owner
that the premises are substantially ready for Tenant's occupancy. (e) Nothing
contained hereinabove shall relieve Tenant from liability that may exist as a
result of damage from fire or other casualty. Notwithstanding the foregoing,
each party shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage resulting from
fire or other casualty, and to the extent that such insurance is in force and
collectible and to the extent permitted by law, Owner and Tenant each hereby
releases
and waives all right of recovery against the other or any one claiming through
or under each of them by way of subrogation or otherwise. The foregoing release
and waiver shall be in force only if both releasers' insurance policies contain
a clause providing that such a release or waiver shall not invalidate the
insurance. If, and to the extent, that such waiver can be obtained only by the
payment of additional premiums, then the party bone-fitting from the waiver
shall pay such premium within ten days after written demand or shall be deemed
to have agreed that the party obtaining insurance coverage shall be free of any
further obligation under the provisions hereof with respect to waiver of
subrogation. Tenant acknowledges that Owner will not carry insurance on Tenant's
furniture and/or furnishings or any fixtures or equipment, improvements, or
appurtenances removable by Tenant and agrees that Owner will not be obligated to
repair any damage thereto or replace the same. (f) Tenant hereby waives the
provisions of Section 227 of the Real Property Law and agrees that the
provisions of this article shall govern and control in lien thereof.
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired tern: of said lease and assigns to Owner, Tenant's entire
interest in any such award.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, its heirs, distributes, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage or encumber this agreement, nor underlet, or suffer or permit
the demised premises or any part thereof to be used by others, without the prior
written consent of Owner in each instance. If this lease be assigned, or if the
demised premises or any part thereof be underlet or occupied by anybody other
than Tenant, Owner may, after default by Tenant, collect rent from the assignee,
under-tenant or occupant, arid apply the net amount collected to the rent herein
reserved, hut no such assignment, underletting, occupancy or collection shall
be deemed a waiver of this covenant, or the acceptance of the assignee,
under-tenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on tire part of Tenant herein contained. The
consent by Owner to an assignment or underletting shall not in any wise be
construed to relieve Tenant from obtaining the express consent in writing of
Owner to any further assignment or underletting. See Paragraph 55th in Rider.
Electric Current:
12. Tenant covenants and agrees that at all times its use of electric current
shall not exceed the capacity of existing feeders to the building or the risers
or wiring installation arid Tenant may not use any electrical equipment which,
in Owner's opinion, reasonably exercised, will overload such installations or
interfere with the use thereof by other tenants of the building. Tire change at
any time of the character of electric service shall in no wise make Owner liable
or responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and, at other
reasonable times, to examine the same and to make such repairs, replacements and
improvements as Owner may deem it necessary and reasonably desirable to the
demised premises or to any other portion of the building or which Owner may
elect to perform. Tenant shall permit Owner to use and maintain and replace
pipes and conduits in and through this demised premises and to erect new pipes
and conduits therein provided they are concealed within the walls, floor, or
ceiling. Owner may, during the progress of any work in the demised premises,
take all necessary materials and equipment into said premises without the same
constituting an eviction nor shall the Tenant be entitled to any abatement of
rent while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof Owner shall
have the right to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the building, and
during the last six months of the term for the purpose of showing the same to
prospective tenants. If Tenant is not present to open and permit an entry Into
the premises, Owner or Owners agents may enter the same whenever such entry
may be necessary or permissible by master key or forcibly and provided
reasonable care is exercised to safeguard Tenant O5 property, such entry shall
not render Owner or its agents liable therefor, nor in any event shall the
obligations of Tenant hereunder be affected. If during the last month of the
term Tenant shall have removed all or substantially all of Tenant's property
therefrom Owner nay immediately enter, alter, renovate or redecorate the
demised premises without limitation or abatement of rent, or incurring liability
to Tenant for any compensation and such act shall have no effect on this lease
or Tenant's obligations hereunder.
Vault, Vault Space, Area:
14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall riot he
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant.
Occupancy:
15. Tenant will. riot at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises and accepts them
as is, subject to the riders annexed hereto with respect to Owner's work, if
any. In any event, Owner makes no representation as to the conditions of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, thus
lease may he canceled by Owner by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as tire debtor; or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) it is stipulated and agreed that in the event of the termination of this
lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any other
provisions of this lease to the contrary, be entitled to recover from Tenant as
and for liquidated damages an amount equal to the difference between the rent
reserved hereunder for the unexpired portion of the term demised and the fair
and reasonable rental value of the demised premises for the same period. In the
computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination and the fair and reasonable
rental value of the demised premises for the period for which such installment
was payable shall be discounted to the date of termination at the rate of four
percent (4%) per annum. If such premises or any part thereof be relet by the
Owner for the unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall be deemed to be
the fair and reasonable rental value for the part or the whole of the premises
so re-let during the term of the re-letting. Nothing herein contained shall
limit or prejudice time right of the Owner to prove for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises become vacant or deserted; or if any execution or attachment
shall be issued against Tenant or any of Tenant's property whereupon the demised
premises shall be taken or occupied by someone other than Tenant; or if this
lease be rejected under * 235 of Title 11 of the U.S. Code (bankruptcy code); or
if Tenant shall make default with respect to any other lease between Landlord
and Tenant or if Tenant shall fail to move into or take possession of the
premises within fifteen (15) days after the commencement of the terms of this
lease, then, In any one or more of such events, upon Owner serving a written ten
(10) days notice upon Tenant specifying the nature of said default and upon the
expiration of said ten (10) days, if Tenant shall have failed to comply with or
remedy such default, or if the said default or omission complained of shall be
of a nature that the samne cannot be completely cured or remedied within said
ten (10) day period, and if Tenant shall not have diligently commenced during
such default within such ten (10) day period, amid shall not thereafter with
reasonable diligence and in good faith, proceed to remedy or cure such default,
then Owner may serve a written five (5) days' notice of cancellation of this
lease upon Tenant, and upon the expiration of said five (5) days this lease and
the term thereunder shall end and expire as fully and completely as if the
expiration of such five (5) day period were the day herein definitely fixed for
the end and expiration of this lease and the term thereof and Tenant shall then
quit and surrender the demised premises to Owner but Tenant shall remain liable
as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and the
terms shall expire as aforesaid; then and in any of such events Owner may
without notice, re-enter the demised premises either by force or otherwise, and
dispossess Tenant by summary proceedings or otherwise, and the legal
representative of Tenant or other occupant of demised premises and remove their
effects and hold the premises as if this lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to institute
legal proceedings to that end. If Tenant shall make default hereunder prior to
the date fixed as the commencement of any renewal or extension of this lease,
Owner nay cancel and terminate such renewal or extension agreement by written
notice.
Remedies of Owner and Waiver of Redemption:
18. In case of any such default, re-entry, expiration and or dispossess by
sunrmary proceedings or otherwise, (a) the rent shall became due thereupon and
be paid up to the time of such re-entry, dispossess and/or expiration, (b) Owner
may re-let the premises or any part or parts thereof, either in the name of
Owner or otherwise, for a term or terms, which may at Owner's option be less
than or exceed the period which would otherwise have constituted the balance of
the term of this lease and may grant concessions or free rent or charge a higher
rental than that in this lease, and/or (c) Tenant or the legal representatives
of Tenant shall also pay Owner as liquidated damages for time failure of Tenant
to observe and perform said Tenant's covenants herein contained, any deficiency
between time rent hereby reserved and/or covenanted to be paid and the net
amount, if any, of the rents collected on account of tire lease or leases of the
demised premises for each month of the period which would otherwise have
constituted the balance of the term of this lease. The failure of Owner to
re-let the premises or any part or parts thereof shall not release or affect
Tenants liability for damages. In computing such liquidated damages there shall
be added to the said deficiency such expenses as Owner may incur in connection
with re-letting, such as legal expenses, attorneys' fees, brokerage, advertising
and for keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any subsequent month by a similar
proceeding. Owner, in putting the demised premises in good order or preparing
the same for re-rental may, at Owner's option, sake such alterations, repairs,
replacements, and/or decorations in the demised premises as Owner, in Owner's
sole judgment, considers advisable and necessary for the purpose of re-letting
tire demised premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or he construed to release
Tenant from liability hereunder as aforesaid. Owner shall in no event be liable
in any way whatsoever for failure to re-let the demised premises, or in time
event that the demised premises are re-let, for failure to collect the rent
thereof under such re-lettinig, and in no event shall Tenant be entitled to
receive any excess, if any, of such net rents collected over the sums payable by
Tenant to Owner hereunder. In the event of a breach or threatened breach by
Tenant of any of the covenants or provisions hereof, Owner shall have the right
of injunction and the right to invoke any remedy allowed at law or in equity as
if re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this lease of any particular remedy, shall riot preclude Owner
from any other remedy, in law or in equity. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future laws in
the event
of Tenant being evicted or dispossessed for any cause, or in the event of Owner
obtaining possession of demised premises, by reason of the violation by Tenant
of any of the covenants and conditions of this lease, or otherwise.
Fees and Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, then, unless otherwise
provided elsewhere in this lease, Owner may immediately or at any time
thereafter and without notice performs the obligation of Tenant thereunder. If
Owner, in connection with the foregoing or in connection with any default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceeding, the Tenant will reimburse Owner for such sums so paid or obligations
incurred with interest and costs. The foregoing expenses incurred by reason of
Tenant's default shall be deemed to be additional rent hereunder and shall be
paid by Tenant to Owner within five (5) days of rendition of any ▇▇▇▇ or
statement to Tenant therefor. If Tenant's lease term shall have expired at the
time of making of such expenditures or incurring of such obligations, such sums
shall be recoverable by Owner as damages.
Building Alterations and Management:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change name, number or designation by which the building may be known. There
shall be no allowance to Tenant for diminution of rental value and no liability
or the part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner or other Tenants making any repairs in the building or any
such alterations, additions and improvements. Furthermore, Tenant shall not have
any claims against Owner by reason of Owner's imposition of such controls of the
manner of access to the building by Tenant's social or business visitors as time
Owner may deem necessary for the security of the building and its occupants.
No Representations by Owner:
21. Neither Owner nor Owners's agents have made any representations or promises
within respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to thine premises except as
herein expressly set forth and no rights, easements or licenses are acquired by
Tenant by implication or otherwise except as expressly set forth in the
provisions of thus lease. Tenant has inspected the building and time demised
premises and is thoroughly acquainted with their condition and agrees to take
the same "as is" and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged In this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement
of Tenant being evicted or dispossessed for any cause, or in the event of Owner
obtaining possession of demised premises, by reason of the violation by Tenant
of any of the covenants and conditions of this lease, or otherwise.
Fees and Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, then, unless otherwise
provided elsewhere in this lease, Owner may immediately or at any time
thereafter and without notice perform the obligation of Tenant thereunder. If
Owner, in connection with tire foregoing or in connection with army default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceeding, the Tenant will reimburse Owner for such sums so paid or obligations
incurred with interest and costs. This foregoing expenses incurred by reason of
Tenant's default shall be deemed to be additional rent hereunder and shall be
paid by Tenant to Owner within five (5) days of rendition of any ▇▇▇▇ or
statement to Tenant therefor. If Tenant's lease term shall have expired at the
time of making of such expenditures or incurring of such obligations, such sums
shall be recoverable by Owner as damages.
Building Alterations and Management:
20. Owner shall have the right at any time without the same constituting an and
eviction and without incurring liability to Tenanmt therefor to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have army claims against Owner by reason of Owner's imposition
of such controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
No Representations by Owner:
21. Neither Owner nor Owners's agents have made any representations or promises
within respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the premises except as herein
expressly set forth and no rights, easements or licenses are acquired by Tenant
by implication or otherwise except as expressly set forth in the provisions of
thus lease. Tenant has inspected the building and thine demised premises and is
thououghly acquainted with their condition and agrees to take the same "as is"
and acknowledges that the taking of possession of the demised premises by Tenant
shall he conclusive evidence that the said premises and the building of which
tire same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in thus
contract, which alone fully and completely expresses the agreement between Owner
and Tenant and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of it in whole or in part,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
End of Term:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, broom clean, in good
order and condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property. Tenant's obligation to observe or perform thus covenant shall
survive the expiration or other termination of this lease. if the last day of
the term of this Lease or any renewal thereof, falls on Sunday, this lease shall
expire at noon on the preceding Saturday unless it be a legal holiday in which
case it shall expire at noon on the preceding business day.
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing arid performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 31
hereof and to thine ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to give Possession:
24. If Owner is unable possession of to give the demised premises on the date of
the commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or If the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or for any other
reason, Owner shall not be subject to any liability for failure to give
possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of thus lease, but the rent payable hereunder shall he abated (provided
Tenant is not responsible for Owner's inability to obtain possession) until
after Owner shall have given Tenant written notice that the premises are
substantially ready for Tenant's occupancy. If permission is given to Tenant to
enter into the possession of the demised premises or to occupy premises other
than the demised premises prior to the date specified as the commencement of the
term of this lease, Tenant covenants and agrees that such occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions of this
lease. The provisions of thus article are intended to constitute "arm express
provision to the contrary" within the meaning of Section 223 -a of the New York
Real Property Law.
No Waiver:
25. The failure of Owner to seek redress for violation of, or to insist upon the
strict performance of any covenant or condition of this lease or of any of the
Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent
a subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of rent
within knowledge of the breach of any covenant of this lease shall not be deemed
a waiver of such breach and no provision of this lease shall be deemed to have
been waived by
Owner unless such waiver be in writing signied by Owner. No payment by Tenant or
receipt by Owner of a lesser amount than tire monthly rent herein stipulated
shall be deemed to be other than one account of the earliest stipulated rent,
nor shall any endorsement or statement of any check or any letter accompanying
any check or payment as rent be deemed an accord and satisfaction, and Owner may
accept such check or payment without prejudice to Owner's right to recover the
balance of such rent or pursue any other remedy in this lease provided. No act
or timing done by Owner or Owner's agents during the term hereby demised shall
be deemed an acceptance of a surrender of said premises, and no agreement to
accept such surrender shall be valid unless in writing signed by Owner. No
employee of Owner or Owner's agent shall have any power to accept the keys of
said premises prior to the termination of the lease and the delivery of keys to
any such agent or employee shall not operate as a termination of the lease or a
surrender of the premises.
Waiver of Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant use of or occupancy of said premises and army emergency
statutory or any other statutory remedy. It is further mutually agreed that in
the event Owner commences any summary proceeding for possession of the premises,
Tenant will not interpose any counterclaim of whatever nature or description in
any such proceeding including a counterclaims under Article 4.
27. This Lease and the Inability to obligation of Tenant to pay Perform: rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or delayed from so doing by reason
of strike or labor troubles or any cause whatsoever including, but not limited
to, government preemption in connection with a National Emergency or by reason
of any rule, order or regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
Bills and Notices:
28. Except as otherwise in this lease provided, a ▇▇▇▇, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail addressed to Tenant at the
building of which the demised premises form a part or at time last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such ▇▇▇▇ or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
Services Provided by Owners:
29. As long as Tenant is not in default under any of the covenants of this
lease, Owner shall provide: (a) intentionally omitted; (b) heat to the demised
premises when and as required by law, on business days (i.e., Mondays through
Fridays, Federal State, City, Municipal and Building union holidays excepted)
from from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 2p.m.; (c) water for
ordinary lavatory purposes, but if Tenant uses or consumes water for any other
purposes or in unusual quantities (of which fact Owner shall be the sole judge),
Owner may install a water meter at Tenant expense which Tanant shall thereafter
maintain at Tenant's expense in good working order and repair to register such
water consumption and Tenant shall pay for water sonsumed as shown on said meter
as additional rent as and when bills are rendered; (d) Anything to the contrary
contained herein notwithstanding, Landlord shall not be responsible to provide
any cleaning service for the demised premises. As said premises are to be kept
clean by Tenant, it shall be done at Tenant's sole expense, in a manner
satisfactory to Owner and no one other than persons approved by Owner shall be
permitted to enter said premises or the building of which they are a part for
such purpose. Tenant shall pay Owner the cost of removal of any of Tenant's
refuse and rubbish from the building; (e) If the demised premises are serviced
by Owner's air conditioning/cooling and ventilating system, air
conditioning/cooling will be furnished to tenant from May 15th through September
30thm on business days (Mondays through Fridays, holidays excepted)
from8:▇▇▇.▇▇. to 6:OOp.m. and on Saturdays from 8 p.m. to 2 p.m., and
ventilation will be furnished on business days and Saturdays during the
aforesaid hours except when air conditioning/cooling is being furnished as
aforesaid. Nothing contained herein shall be deemed to require Landlord to
furnish at Landlord's expense such electric energy, gas or fuel as is required
to operate the heating, ventilating and air-conditioning systems. All such
electricity (and other utilities) shall be furnished to Tenant at Tenant's cost
and expense as provided in Paragraph 53rd hereof. If Tenant requires air
conditioning/cooling or ventilation for more extended hours or on Sundays or on
holidays, as defined under Owner's contract within Operating Engineers Local
94-94A, Owner will furnish the same at Tenant's expense. RIDER to be added in
respect to rates and conditions for such additional service; (f) Owner reserves
the right to stop services of the heating, elevators, plumbing,
air-conditioning, power systems or cleaning or other services, if any, when
necessary by reason of accident or for repairs, alterations, replacements or
improvements necessary or desirable in the judgment of Owner for as long as may
be reasonably required by reason thereof. If the building of which the demised
premises are a part supplies manually-operated elevator service, Owner at any
time say substitute automatic-control elevator service and upon ten days'
written notice to Tenant, proceed within alterations necessary therefor without
in any wise affecting this lease or the obligation of Tenant hereunder
Captions:
30. The Captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this lease nor the intent
of any provisions thereof.
Definitions:
31. The term "office", or "offices", wherever used in this lease, shall not be
construed to mean premises used as a store or stores, for the sale
used in this lease means only the owner, or the mortgagee in possession, for the
time being of the land and building (or the owner of a lease of the building or
of the land and building) of which the demised premises form a part, so that in
the event of any sale or sales of said land and building or of said lease, or in
the event of a lease of said building, or of the land and building, the said
Owner shall be amid hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
entire building has assumed and agreed to carry out any and all covenants and
obligations of Owner, hereunder. The words "re-enter" and "reentry" as used in
this lease are not restricted to their technical legal meaning. The term
"business days" as used in this lease shall exclude Saturdays (except such
portion thereof as is covered by specific hours in Article 29 hereof), Sundays
and all days observed by the State or Federal Governnment as legal holidays and
those designated as holidays by the applicable building service union employees
service contract or by the applicable Operating Engineers contract with respect
to HVAC service.
Adjacent Excavation-Shoring
32. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deems necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of ernt.
Rules and Regulations:
33. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply strictly within, the Rules and Regulations
and such other arid further reasonable Rules and Regulations as Owner or Owner's
agents may from time to time adopt. Notice of any additional rules or
regulations shall be given in such manner as Owner may elect. Nothing in thus
lease contained shall be construed to impose upon Owner any duty or obligation
to enforce the Rules and Regulations or terms, covenants or conditions in any
other lease, as against any other tenant and Owner shall not be liable to Tenant
for violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees.
Security:
34. Tenant HAS deposited with owner the sum of $35,695.00 as security for the
faithful performance and observance by Term- ant of the terms, provision and
conditions of thus lease; 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 rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant is in default or for any sums which Owner may expend or may be
required to expend by reason of Tenants 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 re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully amid faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises forms a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shal1 thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be hound by
any such ass assignment, encumbrance, attempted assignment or attempted
encumbrance. SEE PARAGRAPh 70TH OF RIDER
Estoppel Certificate:
35. Tenant, at any time, and from time to time, upon at least 10 days' prior
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), stating the dates to which the rent and additional
rent have been paid, and stating whether or not there exists any default by
Owner under this Lease, and, if so, specifying each such default.
Successors
36. The covenants, conditions and agreements contained in this lease shall bind
and inure to thine benefit of Owner amid Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns.
SEE RIDER CONTAINING PARAGRAPHS 41ST THROUGH ______ AND SCHEDULES A-E ANNEXED
HERETO AND MADE A PART HEREOF
--------------------------------------------------------------------------------
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: LONG ISLAND INDUSTRIAL GROUP LLC........................SEAL
................... BY /s/ ▇▇▇▇▇ B [ILLEGIBLE]............................(L.S.)
---------------------------------------
WITNESS FOR TENANT: PORTA SYSTEMS CORP......................................SEAL
................... BY /s/ ▇▇▇▇▇▇▇ [ILLEGIBLE]............................(L.S.)
---------------------------------------
RIDER TO OFFICE LEASE BETWEEN
LONG ISLAND INDUSTRIAL GROUP LLC, AS LANDLORD
AND
PORTA SYSTEMS CORP., AS TENANT
41st. RIDER CONTROLS:
In case of a conflict between the provisions of this rider, and the
printed provisions of this lease, the provisions of this rider shall prevail.
42nd. ADDITIONAL RENT/OPERATING EXPENSES REIMBURSEMENT AMOUNTS:
(a) Any sums of money required to be paid under this lease by Tenant in
addition to the rent herein provided, shall be deemed "additional rent due and
payable." It shall be paid after demand therefore with the rent next due or as
may be otherwise provided herein. Such additional rent shall be deemed to be and
shall constitute rent hereunder and shall be collectible in the same manner and
with the same remedies as if they had been rents originally reserved herein.
Tenants obligation to pay additional rent shall survive the earlier termination
and/or expiration of the term of this lease. If Landlord receives from Tenant
any payment less than the sum of the annual rental rate, additional rent, and
other charges then due and owing, Landlord, in its sole discretion, may allocate
such payment in whole or in part to any annual rental rate, any additional rent,
and/or other charge or to any combination thereof. Landlords failure to deliver
to Tenant a statement showing Tenant liability for additional rent for any
portion of the term of this lease during the term of this lease shall neither
prejudice or waive Landlords right to deliver any such statement for a
subsequent period or to include in such subsequent period a previous period.
(b) For the purposes of this lease:
(i) The term "Operating Year" shall mean each calendar year which
shall include any part of the term of this lease.
(ii) The term "Property" shall mean the building of which the
demised premises forms a part and the land on which it is
located, including, without limitation, all areas ("Common
Areas") of the Property that are available for the common use
of the tenants of the Property and that are not leased to any
tenant of the Property (e.g., parking areas, driveways,
sidewalks, loading areas, access roads, corridors, landscaping
and planted areas)
(iii) The term "Tenant's Share" shall mean ten and seven-tenths
Percent (3.1%)
(c) If, at any time during the term of this lease, Landlord expends any
sums for alterations, improvements or work to or with respect to the Property
which are required to be made pursuant to any federal, state or local law, rule
or regulation, including, without limitation any Governmental Law (as such term
is defined in paragraph 51st hereof) or any modification or amendment thereto,
Tenant shall pay to Landlord, as additional rent, Tenant's Share of such cost(s)
within ten (10) days after demand therefor. If, however, the cost of such
alteration or improvement or work is one which is required to be amortized over
a period of time pursuant to applicable governmental regulations, Tenant shall
pay to Landlord, as additional rent, during each year in which occurs any part
of this lease term, Tenant's Share of the reasonable annual
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work performed. For the purposes of this subparagraph (c), the cost of any
alteration or improvement made or work performed shall be deemed to include the
cost of preparing any necessary plans and the fees for filing such plans.
(d) Anything elsewhere in this lease to the contrary notwithstanding, if
the New York Board of Fire Underwriters or the New York Fire Insurance Exchange
or any bureau, department or official of the federal, state or city government
recommend or require that any changes, modifications, alterations, or additional
sprinkler heads or other equipment be made or supplied in an existing sprinkler
system by reasons of Tenant's business or the location of partitions, trade
fixtures, or other contents of the demised premises, Tenant shall at Tenant's
expense promptly make such sprinkler system installations, changes,
modifications and/or alterations and supply additional sprinkler heads or other
equipment as required whether the work involved shall be structural or
non-structural in nature.
43rd. LATE CHARGE/RETURNED CHECK CHARGE:
(a) Tenant shall pay a late charge of 5% of any payment of rent or
additional rent or any other sum of money or payment not received by Landlord
within five (5) days after the same shall become due as compensation for
Landlord's additional administrative expenses relating to such late payment.
Such late charge shall be payable as additional rent on demand.
(b) If Tenant shall fail to pay when due any installment of rent or
additional rent and such failure shall continue beyond the five (5) day period
specified in (a) above, Tenant shall pay in addition to the late charge provided
for in (a) above, interest on such amounts at an annual rate equal to the lesser
of (i) five (5) percentage points above the prime commercial lending rate of
Citibank N.A. (or its successors or assigns) charged to its customers of highest
credit standing for ninety (90) day unsecured loans, in effect from time to
time, or (ii) the maximum rate permitted by applicable law, from the date when
such installment or payment shall have become due to the date the same is paid,
and such interest shall be deemed additional rent.
(c) If any check tendered by Tenant to Landlord is returned by the bank
for non-payment for any reason whatsoever, there will be an administrative
charge of $100.00 per check, each time it is returned which amount shall be
deemed additional rent.
(d) The provisions of this paragraph 43rd are in addition to the other
rights and remedies available to Landlord for non-payment of rent or additional
rent.
44th. TAXES:
(a) In the event that the Real Estate Taxes payable with respect to the
Property for any tax year in which this lease shall be in effect, shall be
greater than the Real Estate Taxes for the base year, the Tenant shall pay to
Landlord on the first day of the month after billing by Landlord to Tenant, as
additional rent, an amount equal to Tenant's Share of the difference between the
amount of such tax or installment for the current year and the corresponding tax
or installment paid for the base year. Any increase in Real Estate Taxes due to
an increase in the assessed valuation of the land or building of which the
demised premises forms a part by reason of improvements made by a tenant shall
be borne entirely by such tenant. Any increase in Real Estate Taxes due to an
increase in the assessed valuation of the land or building by reason of
improvements made by Tenant shall be borne by Tenant and paid by Tenant upon
demand by Landlord. The base year for this tax increase computation shall be the
Fiscal Year 2002/2003 for School Taxes and the calendar year 2-0-0-2 for
General/Town Taxes.
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144;9 02D (b) Real Estate Taxes shall mean any and all taxes, assessments,
sewer and water rents, rates and charges, license fees, impositions, liens,
fines, penalties and all other municipal and governmental charges of any nature
whatsoever (except only inheritance and estate taxes and income taxes not herein
expressly agreed to be paid by Tenant), whether general or special, ordinary or
extraordinary foreseen or unforeseen which may presently or in the future become
due or payable or which may be levied, assessed or imposed by any taxing
authority on or with respect to all or any part of the land and building of
which the demised premises forms a part-, or upon the estate or interest of
Landlord in the land or building of which the demised premises forms a part, or
any part thereof, including without limitation, all taxes and assessments for
improving any streets, alleys, sidewalks, sidewalk vaults and alley vaults, if
any.
45th. INSURANCE:
(a) Tenant shall, at its sole cost and expense, at all times during the
term of this lease (and any extensions thereof) obtain and pay for and maintain
in full force and effect the insurance policy or policies described in Schedule
D attached hereto. Certified copies of all insurance policies required pursuant
to this lease (or certificates thereof, in form and substance acceptable to
Landlord), shall be delivered to Landlord not less than ten (10) days prior to
the commencement of the term of this lease. Tenant shall provide Landlord with
evidence that all such insurance policies have the coverages provided herein and
Tenant shall provide Landlord with an endorsement from the insurance company
providing the insurance indicating that Landlord, Agent, and at Landlord's
request, any Senior Interest Holder (as hereinafter defined in paragraph 65th),
have been named as additional insured(s) covered by such policies. If Tenant
fails to submit such policies or certificates to Landlord within the specified
time, or otherwise fails to obtain and maintain insurance coverages in
accordance with this paragraph, then Landlord, at Landlords sole option, may,
but shall not be obligated to, procure such insurance on behalf of, and at the
expense of, Tenant. Tenant shall reimburse Landlord for such amounts upon
demand, it being understood that any such sums for which Tenant is required to
reimburse Landlord shall constitute additional rent.
(b) Tenant is hereby notified that until further notice from the name and
address of the holder of the required certificate and all additional
insureds/loss payees are on Schedule E.
(c) The parties hereto (a) shall use all reasonable efforts to procure an
appropriate clause in, or endorsement on, any all-risk insurance covering the
demised premises, the Property and personal property, fixtures and equipment
located thereon or therein, pursuant to which the insurance companies issuing
same waive subrogation or consent to a waiver of right of recovery, and (b)
subject to obtaining such clause or endorsement of waiver of subrogation or
consent to a waiver of right of recovery, hereby agree not to make any claim
against or seek to recover from the other for any loss or damage to its property
or the property of others resulting from fire or other hazards covered by such
fire and extended coverage insurance; provided, however, that the release,
discharge, exoneration and covenant not to ▇▇▇ herein contained shall be limited
by and coextensive with the terms and provisions of the waiver of subrogation
clause or endorsement or clause or endorsement consenting to a waiver of right
of recovery. If either party shall be unable to obtain the inclusion of such
waiver of subrogation or consent to waiver clause even with the payment of any
additional premium, then such party shall attempt to name the other party as an
additional insured but not a loss payee) under the policy. Tenant acknowledges
that Landlord shall not carry insurance on, and shall not be responsible for
damage, to Tenant's Property (as hereinafter defined in Schedule D), that
Landlord may not carry insurance on, and shall not be responsible for damage to,
any Alterations, and that Landlord shall not carry insurance against, or be
responsible for any loss suffered by Tenant due to, interruption of Tenant's
business.
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46th. TENANT TO PROVIDE FINANCIAL STATEMENT:
Tenant agrees that upon request by Landlord or any managing agent
("Agent") retained by Landlord to manage the Property it will furnish to
Landlord and to prospective or current mortgagees of the building, and/or land
of which it forms a part, such latest available financial statement as such
current or prospective mortgagees may request.
47th. BROKER:
(a) Tenant represents and warrants that no broker was involved in this
leasing. Tenant agrees to indemnify, defend, and hold harmless Landlord for any
and all costs, expenses, and liability including legal fees incurred by Landlord
as a result of a breach of the aforementioned warranty or any inaccuracy or
alleged inaccuracy of the above representation.
(b) If any lien shall be filed against the demised premises, or the
building of which same is a part, by any other broker based upon dealings with
Tenant, such lien shall be discharged by Tenant within ten (10) days thereafter,
at Tenant s expense, by payment or by filing the bond required by law.
(c) The obligations of Tenant under this paragraph 47th shall survive the
expiration or sooner termination of this lease.
48th. SUPPLEMENT TO ARTICLE 4:
(a) TENANT REPAIRS:
(i) Tenant agrees that, from and after the commencement date of
the term of this lease and until the end of the term, it will,
at its expense, keep and maintain in good order, condition and
repair (whether extraordinary, foreseen or unforeseen), the
interior of the demised premises and every part thereof,
including but not limited to, all heating, ventilation and air
conditioning equipment (sometimes hereinafter referred to as
"HVAC Equipment") located in and/or exclusively servicing the
demised premises (whether installed by Landlord or by or on
behalf of Tenant), interior plumbing up to the exterior walls
of the demised premises, including changes or additions to the
sprinkler system, the interior electrical system servicing the
demised premises, the life safety and/or any other systems to
the point at which same join the main vertical risers for the
Building and Tenant's Property, excluding those repairs and
replacements for which Landlord is responsible, as herein
expressly provided in Article 4. In addition, Tenant shall
make all repairs and replacements of any kind and nature
necessitated by any act or neglect of Tenant, its contractors,
its servants, agents or employees. Tenant shall maintain
service contracts with contractors approved by Landlord for
the maintenance of the HVAC Equipment throughout the term of
this lease arid shall provide Landlord with copies of all such
contracts and related maintenance records. If Tenant fails to
maintain such service contracts, the Landlord may, but shall
not be obligated to, after not less than five (5) days notice
obtain such service contracts at the expense of the Tenant and
the Tenant shall reimburse the Landlord promptly upon request
therefor.
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(ii) Tenant agrees that any and all IIVAC Equipment installed in
the demised premises by Landlord or by or on behalf of Tenant
shall be and remain, or become, as the case may be, the sole
property of Landlord and shall remain upon and be surrendered
to Landlord with the demised premises as a part thereof at the
end of the term, and may not be removed by Tenant.
(iii) If Tenant does not maintain or repair such elements as
provided in Article 4 of the Lease, as supplemented by this
paragraph 48th, the Landlord may, but shall not be obligated
to, after not less than five (5) days notice (except in the
case of emergency) make the necessary repair or cure the
defective condition at the expense of the Tenant and the
Tenant shall reimburse Landlord promptly upon request therefor
which amount shall include the charge for overhead and
supervision pursuant to paragraph 60th below. The amount of
such reimbursement shall be considered additional rent upon
the failure of the Tenant to reimburse Landlord within five
(5) days of demand thereof.
(b) VANDALISM:
Notwithstanding any contrary provision of this lease, Tenant, at its
expense, shall make any and all repairs excluding structural repairs to the
demised premises which may be necessitated by any break-in, forcible entry or
other trespass into or upon the demised premises, regardless of whether or not
such entry and damage is caused by the negligence or fault of Tenant or occurs
during or after business hours; it being specifically agreed and understood by
Tenant that Landlord shall have no responsibility for security or for the
safeguarding of Tenant's Property or employees, all of which shall be the
responsibility of Tenant. In addition, Landlord reserves the right to
discontinue or modify, at any time, any security system, device or procedure
presently in effect or operation at the Property, without liability to Tenant.
49th. INTENTIONALLY OMITTED:
50th. LANDLORD'S WORK:
Landlord shall alter the demised premises for the Tenant in accordance
with and subject to the terms of Landlords Work Criteria annexed hereto as
Schedule B. All such work shall be deemed to have been substantially completed,
notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment, decoration, and other work remain to be completed. In all
other respects, Tenant accepts the demised premises in "as is" condition and
Tenant acknowledges that Landlord makes no representation as to the condition
thereof, except as herein expressly set forth. The taking of occupancy of the
whole or any part of the demised premises by Tenant shall be (A) conclusive
evidence, as against Tenant, that Tenant accepts possession of the same and that
the demised premises so occupied and the Building equipment, if any, servicing
the demised premises, were in good and satisfactory condition at the time such
occupancy was so taken, and (B) deemed to be a representation by Tenant that the
demised premises are in the condition agreed to by Landlord and Tenant for
commencement of the term hereof. Thereafter, Landlord shall have no obligation
to do any further work in order to make the demised premises suitable and ready
for occupancy and use by Tenant, excepting any minor punch list items. Any work
to be performed by Tenant shall be subject to compliance with the terms and
conditions of this lease. Promptly following the substantial completion of the
such work by Landlord, the parties shall within fifteen (15) days thereafter, at
Landlord's request, execute a writing acknowledging the Commencement Date (the
"Commencement Date Agreement)". Notwithstanding anything to the contrary
contained herein, the term of the lease shall commence on
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the Commencement Date as defined herein, and any failure of the parties to
execute such Commencement Date Agreement shall not affect the validity of the
Commencement Date as fixed and determined by Landlord as aforesaid.
51st. TENANT RESTRICTIONS:
(a) STORAGE/PARKING:
Tenant will not, at any time, use or occupy the area outside the demised
premises for storage of materials or for the overnight parking of vehicles of
any kind without the Landlords prior written consent which may be arbitrarily
withheld. Furthermore, Tenant will not at any time park vehicles in any manner
which will obstruct or interfere with the ingress or egress of other vehicles or
with the use by other tenants of their respective parking and loading facilities
or areas or cause any other parking problems. In addition to Landlord's other
rights and remedies provided in this Lease, Landlord shall have the right, at
Tenant's expense, to have towed any vehicle which is parked or left by Tenant or
any of Tenant's employees in violation of this paragraph 51st, without
accountability therefor.
(b) Tenant shall have the right to use in common with the other tenants in
the building parking spaces as provided by Landlord in the parking lot for the
parking of Tenants automobiles and those of its employees and invitees subject
to the rules and regulations now or hereafter adopted by the Landlord. Landlord
may at any time close temporarily any parking lot or area to make repairs or
changes, to prevent the acquisition of public rights in such areas and to
discourage non-tenant use, provided the same shall not materially interfere with
access to the demised premises. In addition, Landlord may modify, from time to
time, the traffic flow pattern and layout of parking spaces and the
entrances-exits to adjoining public streets or walkways.
(c) NOISE/ODORS:
Tenant covenants and agrees that throughout the demised term it shall not
suffer, allow or permit any offensive or obnoxious vibration, noises, odor, or
other undesirable effect to emanate from the demised premises, to constitute a
nuisance or otherwise unreasonably interfere with the safety, comfort or
convenience of Landlord or of any other occupants of the building of which the
demised premises forms a part, and upon Landlords notice thereof to Tenant,
Tenant shall, within five (5) days thereof, eliminate or control same. If any
such condition is not so remedied then Landlord may at its discretion either:
(a) remedy such condition and any cost and expense incurred by Landlord
therefore shall be deemed additional rent and paid by Tenant to Landlord
together with the next installment of rent due hereunder, or (b) treat such
failure on the part of the Tenant to remedy such condition as a material default
under the provisions of this lease on the part of the Tenant hereunder,
entitling Landlord to any of its remedies, pursuant to the terms of this lease.
In no event, however, shall the Tenant make any alteration, addition or
structural installation in or to the premises or any parts thereof to remedy or
cure such default without the prior written consent of the Landlord.
(d) TOXIC/HAZARDOUS WASTES:
(i) Tenant shall not cause or permit any Hazardous Material as
hereinafter defined) to be brought upon, kept or used in or
about the demised premises by Tenant, its agents, employees,
contractors or invitees. Tenant further covenants and agrees
that it shall not discharge any Hazardous Material in the
ground or sewer disposal system. If Tenant breaches the
obligations stated in the preceding sentences, or if the
presence of Hazardous Material on the demised premises results
in contamination of the demised premises or any
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other part of the building or land of which it forms a part or
if there is such a discharge, then Tenant shall (A)
immediately give Landlord written notice thereof, and (B)
indemnify, defend and hold harmless Landlord from any and all
claims, judgments, damages, penalties, fines, costs,
liabilities or losses (including, without limitation,
diminution in value of the demised premises or the building or
land of which it forms a part, loss or restriction on use of
space in the building of land of which it forms a part,
adverse impact on marketing, sums paid in settlement of
claims, attorneys, consultants' and other expert fees) which
arise during or after the term as a result of such breach,
contamination, or discharge. The foregoing indemnification
includes, without limitation, costs incurred in connection
with any investigation of site conditions or any clean-up,
remedial, monitoring, removal or restoration work required by
any federal, state or local governmental agency or political
subdivision, as well as costs incurred in connection with any
follow-up or subsequent testing, investigation, monitoring
and/or reporting. Without limiting the foregoing, if the
presence of any Hazardous Material within the demised premises
caused or permitted by Tenant results in any contamination of
the demised premises or any other part of the building or land
of which it forms a part, Tenant shall promptly take all
actions at its sole expense as are necessary to return the
demised premises or any other part of the building or land of
which it forms a part to the condition existing prior to the
introduction of any such hazardous Material.
(ii) As used herein, the term "Hazardous Material "mean: (A)
asbestos, petroleum products, and polychlorinated biphenyls,
and (B) hazardous or toxic materials, wastes and substances
which are defined, determined or identified as such pursuant
to all present and future federal, state or local laws, rules
or regulations and judicial or administrative interpretations
thereof (collectively "Governmental Laws)
(iii) Landlord and its agents shall have the right, but not the
duty, to inspect the demised premises at any time to determine
whether Tenant is complying with the terms of this Article. If
Tenant is not in compliance with the provisions of this
Article, Landlord shall have the right to immediately enter
upon the demised premises to remedy said noncompliance at
Tenant m s expense and any expense incurred by Landlord shall
be paid by Tenant upon demand and shall be deemed additional
rent. Landlord shall use reasonable efforts to minimize
interference with Tenants business, but shall not be liable
for any interference caused thereby and Landlord shall not be
required to perform any such work on an overtime, after-hours
or premium pay basis.
(iv) The obligations of Tenant under this clause (d) of paragraph
51st shall survive the expiration or sooner termination of
this lease.
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52nd. LIMITATION OF LANDLORD'S LIABILITY:
(a) Tenant shall look solely to the then interest of Landlord in the
building and land of which it forms a part or to it-he then interest of the
owner therein (if Landlord is the agent of such owner) for the satisfaction of
any remedy of Tenant for Landlord's or such owners failure to perform any of the
obligations of the Landlord hereunder. Neither Landlord nor any disclosed or
undisclosed principal of Landlord (or officer, director, stockholder, partner or
agent of Landlord or of any such principal) shall have any personal liability
for any such failure under this lease or otherwise.
(b) There shall be no merger of Landlord's estate in the demised premises
with Tenant's estate therein by reason of the fact that the same individual,
partnership, firm or corporation or their entity may acquire or own such estates
directly or indirectly. No such merger shall occur until all individuals,
partnerships, firms, corporations and other entities having any interest in such
estates, including any mortgagee, join in a written instrument effecting such
merger and duly record it.
53rd. UTILITIES:
(a) Upon the execution hereof, Tenant must make immediate application to
the appropriate utility company for electric and/or gas service and Tenant shall
forthwith deliver to Landlord a true copy of such application with proof of
payment of any deposit required by such utility company for electric service and
gas service.
(b) Notwithstanding anything previously written anywhere in this lease,
Tenant shall bear the cost and expense of:
(i) all electricity in or for their demised premises.
(ii) gas service and/or fuel in or for their demised premises.
54th. TENANT'S FAILURE TO VACATE:
In the event of any holding-over by Tenant after expiration or termination
of this lease without the consent of Landlord, Tenant shall:
(a) pay as holdover rental for each month of the holdover tenancy an
amount equal to the greater of (i) the fair market rental value of the demised
premises for such month (as reasonably determined by Landlord) or (ii) two
hundred percent (200%) of the rent and additional rent which Tenant was
obligated to pay for the month immediately preceding the end of the term; and
(b) be liable to Landlord for any payment or rent concession which
Landlord may be required to make to any tenant obtained by Landlord for all or
any part of the demised premises (a "New Tenant") in order to induce such New
Tenant not to terminate its lease by reason of the holding-over by Tenant
(including, without being limited to, any holdover expenses, rent or damages
that a New Tenant shall be responsible for), and (ii) the loss of the benefit of
the bargain if any New Tenant shall terminate its lease by reason of the
holding-over by Tenant.
No holding-over by Tenant after the term of this lease shall operate to
extend the term. In the event of any unauthorized holding-over, Tenant shall
indemnify and hold harmless Landlord against all claims for damages by any new
Tenant to whom Landlord may have leased all or any part of the demised premises
effective upon the termination of this lease. Anything in this paragraph 54th to
the contrary notwithstanding, the acceptance of any rent paid by Tenant pursuant
to this paragraph 54th 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
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Property Law of the State of New York and any successor law of like import.
55th. ASSIGNMENT/SUBLET:
55.01 Assignment: Etc. Subject to the terms and procedures set forth in
Section 55.02, neither this lease nor the term and estate hereby granted, nor
any part hereof or thereof, shall be assigned or otherwise transferred, and
neither the demised premises nor any part thereof shall be subleased or be
encumbered in any manner by reason of any act or omission on the part of Tenant
without the prior consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Transfer of a controlling interest in the stock or other
ownership interests of Tenant shall be deemed to be a transfer of this lease
excepting only where such transfers of stock are effected through the
"over-the-counter" market or through any recognized stock exchange or in
connection with a public offering of shares of Tenant. No consent of Landlord to
any assignment or other transfer of this lease and the term and estate hereby
granted, and no consent by Landlord to any subletting of all or any portion of
the demised premises, shall be construed to relieve Tenant of its liability
hereunder or of the obligation to obtain such consent to any further assignment,
other transfer or subletting. Tenant may permit any corporation or other
business entity which controls, is controlled by or is under common control (and
which at all times so remains) with Tenant including but not limited to a bona
fide merger or other consolidation of Tenant's business where the resulting
entity is at least as strong financially as Tenant (a "Related Corporation") to
sublet all or part of the demised premises upon prior written notice to Landlord
setting forth the name of such Related Corporation and the providing of
reasonably satisfactory evidence to Landlord that such subtenant is a Related
Corporation. Such subletting shall not vest in any such Related Corporation any
right or interest in this lease nor shall it discharge any of Tenant's
obligations hereunder. For purposes hereof, "control" means ownership and/or
control of 50% or more of the equitable or beneficial interest in such entity
and/or control or participation in or management of such entity.
55.02 Assignment and Subletting Procedures. (a) Provided Tenant is not
then or thereafter in default in the payment of rent and/or additional rent or
is otherwise not in default under this lease, if Tenant intends to assign this
lease or to sublet the demised premises or any part thereof, Tenant shall give
Landlord notice of such intent. Tenant's notice shall be accompanied by (i) a
certified description of all material terms of the proposed agreement between
Tenant and the proposed assignee or subtenant, (ii) a statement setting forth in
reasonable detail the identity of the proposed assignee or sublessee, the nature
of its business and its proposed use of the demised premises and (iii) current
financial information with respect to the proposed assignee or subtenant. Tenant
shall provide Landlord with any additional information or documents requested by
Landlord.
(b) Landlord shall then have tile option, exercisable by notice to Tenant
within thirty (30) days after receipt of such additional information (or the
date of Tenant's original notice if Landlord does not timely request additional
information) to:
(i) sublease the applicable space on the terms and conditions set
forth in this lease, to the extent applicable, or, in the case
of a proposed assignment or a proposed subletting for all or
substantially all of the term of this lease, to accept an
assignment of this lease, in either case as of the date so
specified by Tenant (but in no event earlier than one hundred
fifty (150) days after the date of receipt by Landlord of such
notice), or
(ii) permit Tenant to assign this lease or sublet such space,
subject, however, to Landlord's prior approval of the proposed
assignee or sublessee,
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which approval shall not be withheld or delayed so long as:
(A) the use of the demised premises by such proposed assignee or sublessee
would be permitted under Article 2;
(B) the proposed assignee or sublessee is of sound financial condition as
determined by Landlord given the obligations to be assumed by such assignee or
sublessee under this lease;
(C) in the case of a subletting, such subletting shall be at rent no less
than (x) the rental rate then being accepted by Landlord with respect to
comparable available space in the Building or (y) if there is no comparable
available space in the Building at such time, the fair rental value of the
sublet space;
(D) the proposed sublessee or assignee is a reputable person or entity of
good character and J1andlord has been furnished with evidence thereof;
(E) neither the proposed subtenant or assignee nor any one controlling,
controlled by or under common control with such proposed subtenant or assignee
is then an occupant of any portion of the Building or the Property or is a
person with whom Landlord (or anyone which, directly or indirectly, controls, is
controlled by, or is under common control with Landlord) is then negotiating to
lease space in the Building or the Property or in any other building owned or
operated under a ground or underlying lease by Landlord or any one which,
directly or indirectly, controls, is controlled by, or is under common control
with Landlord;
(F) the form of the proposed sublease or assignment is satisfactory to
Landlord;
(G) there shall be no more than two (2) occupants within the demised
premises, including Tenant; and
(H) the proposed subtenant shall not be (1) entitled, directly or
indirectly, to diplomatic or sovereign immunity unless effectively waived and
shall be subject to the service of process in, and the jurisdiction of the
courts of the State of New York or (2) a charitable, religious, union or other
not-for-profit organization or any tax exempt entity within the meaning of
Section 168(j) (4) (A) of the Internal Revenue Code of 1986, as amended, or any
successor or substitute statute, or rule or regulation applicable thereto (as
the same may be amended).
(c) If the aggregate amount payable as base rent and additional rent by a
subtenant under a sublease of any part of the demised premises shall be in
excess of Tenant's Basic Cost (as hereinafter defined) therefor at that time,
then, within ten (10) days after the collection thereof, Tenant shall pay to
Landlord, as additional rent, such excess. Tenant shall deliver to Landlord
within thirty (30) days after the end of each calendar year and within thirty
(30) days after the expiration or earlier termination of this lease a statement
specifying each sublease in effect at any time during such calendar year or
partial calendar year, the number of square feet of rentable area demised
thereby, the term thereof and a computation in reasonable detail showing the
calculation of the amounts paid and payable by Tenant to Landlord with respect
to such sublease for the period covered by such statement. "Tenant's Basic Cost"
for sublet space at any time means the sum of (x) the portion of the base rent
and additional rent under paragraphs 42nd and 44th hereunder which is
attributable to the sublet space at such time, plus (y) the amount of any costs
reasonably incurred by Tenant in making changes in the layout and finish of the
sublet space for the subtenant amortized on a straight-line basis over the term
of the sublease plus (z) the amount of any customary brokerage commissions and
legal fees and disbursements paid by Tenant in connection with the sublease
amortized on a straight-line basis over the term of the sublease.
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(d) Upon any assignment of this lease pursuant to the terms hereof, Tenant
shall pay to Landlord the Net Consideration (as hereinafter defined) received by
Tenant in respect of such assignment or otherwise from such assignee. For
purposes hereof, "Net Consideration" means all sums paid by the assignee in
consideration of such assignment minus all customary and reasonable closing
expenses (including, without limitation, customary and reasonable legal and
brokerage expenses) incurred in connection with such assignment. "Net
Consideration" shall include any sums paid for the purchase or rental of any of
Tenant's Property (as hereinafter defined in Schedule D), less, in the case of a
sale thereof, the then net, unamortized or undepreciated cost thereof determined
on the basis of Tenant's Federal income tax returns.
(e) No assignment made pursuant to this Section 55.02 shall be valid
unless, within ten (10) days after the execution thereof, Tenant shall deliver
to Landlord a duplicate original instrument of assignment and assumption, duly
executed by Tenant and by the assignee and in form and substance reasonably
satisfactory to Landlord, wherein such assignee shall assume performance of all
terms of this lease on Tenant's part to be performed.
(f) Tenant shall, within ten (10) days after the commencement of the term
of a permitted sublease, give Landlord notice of such commencement, or, in the
case of permitted assignment, notice of the effectiveness of such assignment.
(g) If Landlord consents to a proposed sublease or assignment and the same
does not become effective within ninety (90) days after the giving of such
consent, then Tenant shall again comply with all of the provisions and
conditions of this Paragraph 55th before assigning this lease or subletting all
or any part of the demised premises.
(h) If Landlord shall decline to consent to any proposed assignment or
sublease as permitted by this lease, or if Landlord shall exercise its option
under this Section to terminate or accept an assignment of this lease from
Tenant, Tenant hereby agrees to indemnify Landlord against any and all liability
arising from any claims that may be made against Landlord by the proposed
assignee or subtenant or by any broker, finder or other person claiming a
commission or other compensation in connection with the proposed assignment or
sublease.
55.03 Additional Subleasing Conditions. (a) If this lease is assigned,
whether or not in violation of the terms of this lease, Landlord may collect
rent from the assignee. If the demised premises or any part thereof is sublet or
used or occupied by anybody other than Tenant, Landlord may, after default by
Tenant, collect rent from such subtenant or occupant. In either event, Landlord
may apply the net amount collected to the rents herein reserved. The consent by
Landlord to an assignment, transfer, mortgage, pledge, encumbering or subletting
pursuant to any provision of this lease shall not relieve Tenant or any assignee
or subtenant from obtaining the express prior consent of Landlord to any other
or further assignment, transfer, mortgage, pledge, encumbering or subletting.
Tenant agrees to pay to Landlord reasonable attorneys' fees and disbursements
incurred by Landlord in connection with any proposed assignment or subletting.
Neither any assignment of this lease nor any subletting, occupancy or use of the
demised premises or any part thereof by any person other than Tenant, nor any
collection of rent by Landlord from any person other than Tenant, nor any
application of any such rent as provided in this Paragraph 55th, shall be deemed
a waiver of any of the provisions of this Paragraph 55th or relieve, impair,
release or discharge Tenant of its obligation fully to perform the terms of this
lease on Tenant's part to be performed, and Tenant shall remain fully and
primarily liable hereunder.
(b) No subletting shall be for a term ending later than the day prior to
the Expiration Date and any portion of a proposed term of any sublease or any
renewal or extension thereof which purports
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to extend beyond such date, or the date of sooner termination of the term of
this lease, is hereby deemed to be a nullity.
(c) If Landlord shall recover or came into possession of the demised
premises before the Expiration Date, Landlord shall have the right to take over
any sublease made by Tenant and to succeed to all rights of Tenant thereunder,
Tenant hereby assigning (effective as of the date of Landlord's succession to
Tenant's estate in the demised premises) such subleases as Landlord may elect to
take over. Every subletting hereunder shall be subject to the condition that,
from and after the termination of this lease or re-entry by Landlord hereunder
or other succession by Landlord to Tenant's estate in the demised premises, the
subtenant shall waive any right to surrender possession or to terminate the
sublease and, at Landlord's election, shall be bound to Landlord for the balance
of the term thereof and shall attorn to and recognize Landlord, as its landlord,
under all of the then executory terms of such sublease, except that Landlord
shall not (i) be liable for any previous act, omission or negligence of Tenant,
as sublandlord, under such sublease, (ii) be subject to any counterclaim,
defense or offset theretofore accruing to such subtenant against Tenant, (iii)
be bound by any previous modification or amendment of such sublease made without
Landlord's consent or by any previous prepayment of more than one month's rent
and additional rent unless paid as provided in the sublease, or (iv) be
obligated to perform any repairs or other work in the subleased space or the
Building beyond Landlord's obligations under this lease. Each subtenant shall
promptly execute and deliver such instruments as Landlord may reasonably request
to evidence and confirm such attornment.
55.04 Mortgage. Except as otherwise provided herein, Tenant, for itself,
its heirs, distributees, executors, administrators, legal representatives,
successors and assigns, expressly covenants that it shall not mortgage,
hypothecate, pledge or otherwise encumber this lease without the prior written
consent of Landlord in each instance.
56th. PERMITS:
(a) If any governmental license or any permit shall be required for the
proper and lawful conduct of Tenant's business or that of any of its subtenants
in the demised premises and if failure to secure such license or permit would in
any way adversely affect Landlord, the Building or the Property, then Tenant, at
its expense, shall duly procure and thereafter maintain such license or permit
and submit the same to Landlord for inspection. Tenant shall at all times comply
with the terms and conditions of each such license or permit. In no event shall
Tenant's failure to procure or maintain such license or permit relieve Tenant
from its obligations under this lease.
(b) Anything to the contrary contained in the lease notwithstanding,
Tenant agrees to pay the cost of any and all permits and fees required by any
branch or department of the town, village, county, state or federal government
or other municipality in connection with any air conditioning or other equipment
now or thereafter located in tile demised premises whether or not installed by
Landlord or Tenant.
57th. TERMINATION:
At the expiration of the term of this lease or upon the early termination
of this lease, Tenant shall deliver to Landlord in accordance with Article 3 of
this lease any and all equipment and fixtures belonging to Landlord or which is
to be surrendered to Landlord as part of the demised premises in working
condition, including, without limitation, equipment and fixtures installed or
replaced by the Tenant. The Tenant further agrees to deliver to Landlord any and
all guarantees on new and replaced equipment.
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58th. DEFAULT:
(a) Notwithstanding any provisions in the lease permitting Tenant to cure
any default within a specified period of time, if Tenant shall default (i) in
the timely payment of rent or additional rent, and such default shall continue
or be repeated for two consecutive months or for a total of four months in any
period of twelve months or (ii) in the performance of any term, condition or
covenant of this lease more than two times in any period of six months then,
notwithstanding that such defaults shall have each been cured within the period
after notice, if any, as provided in this lease, any further similar default
shall be deemed to be deliberate and Landlord thereafter may cancel or terminate
this lease as provided in Article 17 hereof without affording to Tenant an
opportunity to cure such further default.
(b) It is specifically understood and agreed that if Landlord commences a
Summary Proceedings or any other action against Tenant due to any violation
and/or defaults by Tenant in the observance or performances of the terms,
covenants, conditions or agreements to be performed or observed by Tenant under
this lease, including but not limited to non-payment of rent or additional rent,
Tenant shall bear the cost of Landlord's attorney fees, which shall be an amount
equal to ten percent of the amount of unpaid rent and additional rent but not
less than $500.00. Such fee shall be deemed additional rent and Landlord, at its
option, may include such amount in said proceedings as an unpaid item of rent.
59th. MISCELLANEOUS:
(a) This lease is transmitted for examination only and does not constitute
an offer to lease. This lease shall become effective only upon execution hereof
and delivery by the parties hereto.
(b) This instrument contains the entire and only agreement between the
parties. No oral statements or representations or prior written matter not
contained herein shall have any force or effect.
(c) This lease shall not be modified, changed, or amended in any way or
canceled, terminated or abridged except by a writing subscribed by both parties.
(d) Any reference in the printed portion of this lease to the City of New
York and the Administrative Code of the City of New York shall, where
applicable, be deemed to refer to the ordinances, rules and regulations of the
county, town, village and other governmental authorities with jurisdiction over
the demised premises.
(e) If any term or provision of this lease or the application thereof to
any person or circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
lease shall be valid and enforced to the fullest extent permitted by law.
(f) This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
(g) Neither this lease nor any memorandum hereof shall be recorded without
Landlord's prior written consent. Tenant shall keep the provisions of this lease
confidential.
(h) Each provision of this Lease which requires the consent or approval of
Landlord shall be deemed to require the same in each instance in which such
provision may be applicable. Any consent or approval by Landlord to or of any
act or omission by Tenant requiring Landlord's consent or approval shall not be
deemed to waive any future requirement for such consent or approval to or of any
subsequent similar act or omission.
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(i) With respect to any provision of this lease which provides, in effect,
that Landlord shall not unreasonably withhold or unreasonably delay any consent
or any approval, Tenant, in no event, shall be entitled to make, nor shall
Tenant make, any claim for, and Tenant hereby waives any claim for money damages
nor shall Tenant claim any money damages by way of setoff, counterclaim or
defense, based upon any claim or assertion by Tenant that Landlord has
unreasonably withheld or unreasonably delayed any consent or approval; but
Tenant's sole remedy shall be an action or proceeding to enforce any such
provision, or for specific performance, injunction or declaratory judgment.
60th. LANDLORD'S OVERHEAD AND SUPERVISION CHARGES:
(a) Whenever Landlord or its Agent performs work or furnishes services for
Tenant at separate charge, or on Tenant's behalf performs work which Tenant
should have performed but failed to perform prior to the expiration of the time
period applicable thereto; then, in addition to all other charges that Tenant
may be required to pay under this lease, Tenant shall pay Landlord (or
Landlord's Agent if so directed by Landlord), within ten (10) days of Landlord's
submission of the ▇▇▇▇ therefor, an amount equal to 21% of the total amount
expended by or on behalf of Landlord in connection with the same (representing a
charge of 10% of said total amount for overhead and thereafter 10% of said total
amount plus the overhead charge for supervision)
(b) Whenever Tenant, or on Tenant's behalf any contractor or vendor
performs construction, alteration or repair work, including, but not limited to,
furnishing labor, materials or services in connection therewith and/or in
connection with the construction of any Alterations (as such term is defined in
paragraph 66th), then, in addition to all other charges that Tenant may be
required to pay under this lease, Tenant shall pay Landlord (or Landlord's Agent
if so directed by Landlord), within ten (10) days of Landlord's submission of
the ▇▇▇▇ therefor, an amount equal to ten percent (10%) of the amount expended
by or on behalf of Tenant, for Landlord's indirect costs, field inspection and
coordination in connection with such work.
61st. BUILDING ACCESS:
Subject to the terms and conditions of this lease, including, without
limitation, the Rules and Regulations, the Tenant shall enjoy access to the
building only on weekdays from 8:00 a.m. to 6:00 p.m. and on Saturdays from 8:00
a.m. to 2:00 p.m., excluding legal holidays.
62nd. LIEN PROHIBITION:
Nothing contained in this lease shall be deemed to be, or construed in any
way as constituting, the consent of Landlord to any person for the performance
of any labor or the furnishing of any materials at or to the demised premises or
the building and land of which the demised premises are a part, nor as giving
Tenant any right, power or authority to contract or permit the performance of
any labor or the furnishing of any material which might give rise to the right
to record or file a lien against the demised premises or the real property of
which the demised premises are a part or against the interests therein of
Landlord or Tenant, it being intended that all persons who may perform any labor
or furnish any materials to Tenant at the demised premises shall look only to
the credit of Tenant and such security as Tenant may furnish to such persons for
the payment of all such labor and materials. Landlord does not consent to the
recording or filing of any mechanics" or other liens against the leased premises
or the real property of which the demised premises are a part or the interest of
Landlord or Tenant therein.
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63rd. NOTICES: 63rd. NOTICES:
Any notice required to be given by either party pursuant to this lease,
shall be in writing and shall be deemed to have been properly given, rendered or
made only if sent by registered or certified mail or by Federal Express or other
comparable commercial overnight delivery, service, postage prepaid, addressed to
the other party at the addresses set forth below (or to such other address as
Landlord or Tenant may designate to each other from time to time by written
notice), and shall be deemed to have been given, rendered or made on the day so
delivered; or in the case of failure to deliver by reason of changed address of
which no notice was given, or refusal to accept delivery, as of the date of such
failure as indicated on the return receipt or by notice of the postal
department.
If to Landlord: LONG ISLAND INDUSTRIAL GROUP LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to: Long Island Industrial Management LLC
c/o Cammeby's Management Company, LLC
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to Tenant: At the demised premises or as set forth below.
64th. RENT PAYMENTS:
All rent and additional rent and all other sums and charges due under this
lease, shall be paid to Landlord in accordance with the payment directions
attached hereto as Schedule C or pursuant to such other directions as Landlord
shall designate in this lease or otherwise. If the term of this lease commences
on a date other than the first of the month, the rent for the second month shall
be prorated, and the rent for the third month shall commence on the first day of
the month.
65th. SUBORDINATION AND ATTORNMENT:
65.01 Subordination (a) This lease and Tenant's rights hereunder are
subject and subordinate to: (i) all present and future ground leases, operating
leases, superior leases, overriding leases and underlying leases and grants of
term of the Building, or the Property, or any portion thereof (collectively,
including the applicable items set forth in clause (iv) of this subsection (a),
"Superior Leases"); (ii) all mortgages and building loan agreements, including
leasehold mortgages and spreader and consolidation agreements, which may now or
hereafter affect all or any portion of the Property, or any Superior Lease
(collectively, including the applicable items set forth in clauses (iii) and
(iv) of this subsection (a), "Superior Mortgages"), whether or not a Superior
Mortgage shall also cover other lands or buildings or leases, except that a
mortgage on the land only shall not be a Superior Mortgage so long as there is
in effect a Superior Lease which is not subordinate to such mortgage; (iii) each
advance made under any Superior Mortgage; and (iv) all renewals, modifications,
replacements, substitutions and extensions of any Superior Lease or Superior
Mortgage. The provisions of this subsection shall be self-operative and no
further instrument of subordination shall be required.
(b) Tenant shall, within ten (10) days after request therefor, execute and
deliver, at its expense, any instrument, in recordable form if requested, that
Landlord, any holder of a Superior Mortgage (a "Superior Mortgage") or any
lessor under a Superior Lease (a "Superior Lessor") may reasonably request, from
time to time, to "evidence and confirm the subordination provided in subsection
(a) of this Section 65.01.
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(c) Any Superior Mortgagee may elect that this lease shall have priority
over the mortgage held by such Superior Mortgagee (such mortgage, upon such
election by the applicable Superior Mortgagee, is referred to herein as a
"Subordinated Mortgage") and, upon notification by such Superior Mortgagee to
Tenant, this lease shall be deemed to have priority over such Subordinated
Mortgage, whether this lease is dated prior to or subsequent to the date of such
Subordinated Mortgage and, to the extent that an election is made by a Superior
Mortgagee, the provisions of Section 65.01 (a) hereof shall not be applicable to
such Subordinated Mortgage (except as otherwise provided), but such Superior
Mortgagee shall remain a Superior Mortgagee for the purpose of all other
provisions of this lease. Tenant and such Superior Mortgagee shall promptly,
upon the notification by such Superior Mortgagee, execute and deliver an
instrument in recordable form to evidence and confirm such priority.
(d) If, in connection with obtaining, continuing or renewing financing for
which the Building, the underlying land, the Property, or the interest of the
lessee under any Superior lease represents collateral, in whole or in part, the
Superior Mortgagee or proposed Superior Mortgagee (including any which may elect
that this lease shall have priority over such Superior Mortgage) shall request
reasonable modifications of this lease as a condition of such financing, Tenant
shall not withhold its consent thereto, provided that such modifications do not
increase Tenant's obligation to pay rent or additional rent, shorten or lengthen
the term of this lease and do not materially increase any other obligations or
materially diminish any other rights of Tenant under this lease.
65.02 Attornment. (a) If at any time any Superior Lessor, Superior
Mortgagee (each a "Senior Interest Holder") or any other person or the
successors or assigns of any of the foregoing (such Senior Interest Holder and
any such other person being herein collectively referred to as "Successor
Landlord") shall succeed to the rights of Landlord under this lease, Tenant
agrees, at the election and upon the request of any such Successor Landlord,
from time to time, fully and completely to attorn to and recognize any such
Successor Landlord as Tenant's landlord under this lease upon the then executory
terms of this lease, ~ such Successor Landlord shall agree in writing to accept
Tenant's attornment. The foregoing provisions of this Section 65.02 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 the
Superior Lease and shall be self-operative upon any such request, and no further
instrument shall be required to give effect to said provisions. Upon the request
of any such Successor Landlord, Tenant shall execute and deliver, from time to
time, instruments reasonably satisfactory to any such Successor Landlord, in
recordable form if requested, to evidence and confirm the foregoing provisions
of this Section 65.02, acknowledging such attornment and setting forth the terms
and conditions of its tenancy.
(b) 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: (i) liable for any act or omission or negligence of any prior Landlord
(other than to cure any default of a continuing nature); (ii) subject to any
counterclaim, defense or offset which theretofore shall have accrued to Tenant
against any prior Landlord; (iii) bound by the payment of any rent or additional
rent for more than one month in advance (unless actually received by such
Successor Landlord); (iv) bound by any modification or amendment of this lease
unless (A) such modification or amendment shall have been approved in writing by
the Senior Interest Holder, of which Tenant has been given notice, through or by
reason of which the Successor Landlord shall have succeeded to the rights of
Landlord under this lease or (B) the modification or amendment shall have
occurred prior to the creation of such Senior Interest; (v) obligated to
construct any improvements or to grant any credit toward the cost of any
improvements; (vi) in the event of damage to the Building or the Property, by
fire or other
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casualty, obligated to repair the demised premises or the Building or the
Property, or any part thereof beyond such repair as may be reasonably
accomplished from the net proceeds of insurance actually made available to
Landlord; or (vii) in the event of partial condemnation, obligated to repair the
demised premises or the Building or the Property, or any part thereof beyond
such repair as may be reasonably accomplished from the net proceeds of any award
actually made available to Landlord as consequential damages allocable to the
part of the demised premises or the Building or the Property, not taken. Nothing
contained in this Section 65.02 shall be construed to impair any right otherwise
exercisable by any such Successor Landlord.
65.03 Right to Cure. 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 in whole or in part or to claim such cancellation or termination on the
basis of 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
Senior Interest Holder whose name and address shall have been previously
furnished to Tenant, and (b) a reasonable period for remedying such act or
omission shall have elapsed following such notice and following the time when
such Superior Mortgagee or Superior Lessor shall have become entitled under such
Superior Mortgage, Subordinated Mortgage or Superior Lease, as the case may be,
to remedy the same (which reasonable period shall be not less than sixty (60)
days and, if such act or omission is of such a nature that it cannot be
completely remedied within such sixty (60) day period, such reasonable period
shall be such longer period as may be required provided~ such Senior Interest
holder shall have within such sixty (60) day period given Tenant notice of its
intention to remedy such act or omission, and has commenced and thereafter
continues to act upon such intention). It is agreed, however, that if such
Senior Interest Holder requires possession of the demised premises in order to
effect a remedy, then such Senior Interest holder shall have such further period
of time as is necessary to obtain possession in addition to the reasonable
period referred to in the preceding sentence, provided such Senior Interest
Holder shall give Tenant notice of its intention to obtain possession and remedy
such act or omission and shall promptly commence and continue to pursue, through
appointment of a receiver or foreclosure, summary proceedings or other
procedures, steps necessary to obtain possession. For the purposes of this
Section 65.03, if there shall be more than one Senior Interest Holder, the
provisions of this Section 65.03 shall be applicable only to the holder of the
Superior Mortgage or the Subordinated Mortgage which constitutes the first
mortgage lien on the Building
66th. SUPPLEMENT TO ARTICLE 3:
(a) Tenant shall not make or allow to be made any alterations or physical
additions, including, without limitation, fixtures, to the demised premises
other than normal painting, carpeting, wall-coverings and office decorations
("Alterations") or place safes, vaults, filing systems, libraries or other heavy
furniture or equipment within the demised premises without first obtaining the
consent of Landlord, which consent shall not be unreasonably withheld in the
case of an Alteration which (i) has no adverse effect on the Building's
structure or systems, including, without limitation, the electrical, and
plumbing systems of the Building (collectively, "Building Systems"); (ii) is not
visible from the exterior of the demised premises; (iii) does not result in a
violation of, or require a change in, any certificate of occupancy for the
Building; (iv) does not affect any area of the Building outside of the demised
premises; and (v) does not, in Landlord's sole judgment, adversely affect the
character or value of the Property
(b) Landlord shall be entitled to retain independent consultants to review
the plans and specifications for and the progress of construction of Alterations
and to reimbursement from Tenant, within ten (10) days after request therefor,
for all of the
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fees of such consultants and other out-of-pocket costs incurred by Landlord in
connection with such proposed Alteration. Tenant shall, prior to commencing any
work in the demised premises in connection with any Alteration, the nature of
which would under good construction industry practice or Legal Requirements (as
such term is hereinafter in this paragraph 66th defined) involve the preparation
of plans and specifications, furnish Landlord with three (3) sets of complete
plans and specifications for such work. Landlord agrees to use reasonable
efforts, consistent with industry practice and the scope of such proposed
Alteration, to respond to Tenant's request for consent to its plans and
specifications for Alterations within (i) fifteen (15) Business Days after
submission thereof to Landlord in the case of the original submission and (ii)
ten (10) Business Days in the case of any resubmission of disapproved plans.
Landlord reserves the right to disapprove any plans and specifications in part,
to reserve approval of items shown thereon pending its review and approval of
other plans and specifications, and to condition its approval upon Tenant making
revisions to the plans and specifications or supplying additional information.
Any Alterations for which consent has been received shall be performed in
accordance with plans and specifications approved by Landlord, and no amendments
or additions thereto shall be made without the prior written consent of Landlord
in each instance, which consent shall be granted or withheld in accordance with
the same provisions and within the same time frames in granting initial consent
to the applicable Alterations.
(c) Tenant agrees that all Alterations shall at all times comply with all
applicable governmental and quasi-governmental rules and regulations and the
rules and regulations of any Board of Fire Underwriters or similar agency having
jurisdiction ("Legal Requirements") and any rules and regulations which Landlord
may adopt from time to time with respect to the making of Alterations. Tenant,
at its expense, shall cause all Alterations to be performed in a good and
first-class workmanlike mariner, using new materials and equipment.
(d) Landlord or its agent, at Tenant's expense and upon request of Tenant,
shall execute any applications for any permits, approvals or certificates
required to be obtained by Tenant (wherein such Landlord signature is required)
in connection with any permitted Alteration (provided that the provisions of the
applicable Legal Requirement require that Landlord execute such application) and
shall otherwise cooperate with Tenant in connection therewith, provided that if
Landlord shall incur any cost or liability in connection therewith, Tenant shall
reimburse Landlord for all such costs, expenses and liabilities within ten (10)
days after receipt of Landlord's invoice therefor.
(e) Tenant agrees that all Alterations shall be promptly commenced and
completed and shall be performed only in a manner so as not to interfere with
the occupancy of any other tenant or delay Landlord in the construction,
maintenance, management or operation of the Building or the rest of the Property
or the space of any other tenant in the Building, and if any additional expense
shall be incurred by Landlord as a result of Tenant's making of any Alterations,
Tenant shall pay such additional expense within ten (10) days after demand
therefor.
(f) No Alterations shall be constructed (i) except under the supervision
of a licensed architect or licensed professional engineer reasonably
satisfactory to Landlord and (ii) in the event of an Alteration in excess of
$50,000.00 prior to Tenant delivering to Landlord either (y) a performance bond
and a labor and materials payment bond (issued by a surety company reasonably
satisfactory to Landlord and licensed to do business in the State of New York)
each in an amount equal to one hundred twenty-five percent (125%) of such
estimated cost and otherwise in form satisfactory to Landlord or (z) such other
security as shall be satisfactory to Landlord.
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(g) All contractors retained by Tenant shall be subject to the prior
written approval of Landlord. Tenant shall not permit the use of any
contractors, labor, material or equipment in the performance of any work if such
use, in Landlord's sole judgment, will disturb harmony with any trade engaged in
performing any other work in and about the Building and/or the rest of the
Property or contribute to any labor dispute. Landlord may require the use of
designated Building engineers or contractors for specified work which will or
may affect any Building Systems.
(h) Tenant shall indemnify and hold Landlord harmless from and against all
costs (including, without limitation, attorneys' fees and disbursements),
losses, liabilities or causes of action arising out of or relating to any
Alteration, including, without limitation, any mechanics' or materialmen's liens
asserted in connection with such Alteration.
(i) Landlord's review and/or approval of plans or specifications or
consent to the making of Alterations in the demised premises shall not be deemed
to be (i) an agreement by Landlord that the contemplated Alterations comply with
any Legal Requirements, or any certificate of occupancy for the Building; (ii)
an approval of the sufficiency, completeness or any other aspect of the proposed
Alteration; or (iii) a waiver by Landlord of compliance by Tenant with any of
the other terms of this lease and any other agreements or other documents
relating thereto.
67th. INABILITY TO PERFORM:
(a) This lease and the obligations of Tenant to pay rent and additional
rent and perform all of the other terms of this lease on the part of Tenant to
be performed shall in no way be affected because Landlord is unable or delayed
in fulfilling any of its obligations under this lease by reason of Force
Majeure. Landlord shall in each instance exercise reasonable diligence to effect
performance when and as soon as reasonably possible; provided, however, that
Landlord shall be under no obligation to employ overtime or premium labor.
(b) For purposes of this lease, "Force Majeure" shall mean any and all
causes beyond the reasonable control of Landlord or Tenant, as the case may be,
including delays caused by the other party hereto or other tenants, Legal
Requirements and other forms of governmental restrictions, regulations or
controls (including energy and water conservation measures), labor disputes,
accidents, mechanical breakdowns, shortages or inability to obtain labor, fuel,
steam, water, electricity or materials through ordinary sources, acts of God,
war, sabotage, embargo, enemy action, civil commotion, fire or other casualty,
but shall not include lack of funds or financial inability to perform.
68th. DEVELOPMENT DEMOLITION AND RELOCATION RIGHTS:
(a) Tenant acknowledges that it has no rights to any development rights,
"air rights" or comparable rights appurtenant to the Building, and/or the
Property, and consents, without further consideration, to any utilization of
such rights by Landlord and agrees to promptly execute and deliver any
instruments which may be requested by Landlord, including instruments merging
zoning lots, evidencing such acknowledgment and consent. The provisions of this
Section shall be deemed to be and shall be construed as an express waiver by
Tenant of any interest Tenant may have as a "party in interest" in the Building,
and/or the Property.
(b) (1) Anything to the contrary contained in this lease notwithstanding,
Landlord, upon not less than thirty (30) days prior written notice to Tenant,
shall have the right at any time and from time to time during the term of this
lease, to substitute, as of a date specified in said notice (the "Effective
Date"), other space (the "Substitute Space") in the Building of which the
demised premises forms a part
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as the demised premises hereunder in lieu of the space (the "Prior Space") then
constituting the demised premises hereunder immediately prior to the giving of
such notice.
(2) Prior to the Effective Date, Landlord, at Landlord's expense and with
Tenant's reasonable cooperation (but at no cost to Tenant), shall furnish
necessary moving labor to move Tenant and Tenant's equipment and personal
property to the Substitute Space, which Substitute Space shall be substantially
equivalent in area and build-out to the Prior Space and have substantially
equivalent parking accommodations available for Tenant's use.
(3) Automatically on the Effective Date, the Substitute Space shall
constitute the demised premises hereunder and all of the terms of this lease
shall apply thereto (except that Landlord shall not be required to perform any
work or furnish any materials with respect to Tenant's installation in the
Substitute Space, other than as hereinabove specifically provided), and the
Prior Space shall automatically be deleted from the coverage of this lease and
the term of this lease insofar as the Prior Space only is concerned shall be
deemed to have ceased and expired with the same force and effect as if the
Effective Date were originally provided in this lease as the expiration date
hereof but this lease shall continue in full force and effect for the full term
hereof with respect to tile Substitute Space.
(4) Tenant covenants and agrees to quit and surrender vacant full
possession of the Prior Space to Landlord on the Effective Date free and clear
of any leases, tenancies and rights of occupancy of anyone claiming by or
through Tenant. If Tenant shall fail or refuse to surrender such vacant full
possession of the Prior Space to Landlord on or before the Effective Date (for
any reason other than failure to furnish moving labor to Tenant), then and in
such event Tenant shall pay to Landlord for each day or fraction thereof that
Tenant; shall fail to surrender such vacant full possession of the Prior Space
to Landlord (in addition to all rent and additional rent provided to be paid
under this lease which is applicable from and after the Effective Date to the
Substitute Space) an agreed-upon sum equal to three (3) times the quotient
obtained by dividing (i) the sum of the monthly installment of rent then payable
under this lease plus one-twelfth (1/12) of all additional rent then payable
under this lease by (ii) thirty (30) (the "Daily Rate for the Prior Space").
Such Daily Rate for the Prior Space is in the nature of liquidated damages to
Landlord for Tenant's failure to surrender such vacant full possession of the
Prior Space to Landlord on or before the Effective Date. The foregoing provision
for payment by Tenant of the Daily Rate for the Prior Space shall be without
prejudice to Landlord's instituting summary or such other proceedings as
Landlord may desire in order to obtain as promptly as possible vacant full
possession of the Prior Space. The foregoing provision for payment by Tenant of
the Daily Rate for the Prior Space relates solely to Landlord and Tenant's
mutual agreement to the daily value of the Prior Space to each of Landlord and
Tenant taking into consideration Tenant's agreement to comply with the terms of
this paragraph 68th and to surrender vacant full possession of the Prior Space
to Landlord on or before the Effective Date, time being deemed of the essence;
therefore, in addition to Tenant's agreement to make payment of the Daily Rate
for the Prior Space for each subject day, Tenant agrees to pay Landlord the
total amount of any loss, damage, cost or injury (including attorneys' fees and
disbursements) suffered by Landlord with regard to any existing or potential
transaction which is adversely affected by Tenant's failure or refusal to timely
surrender the Prior Space.
(c) If Landlord shall at any time during the term of this lease decide to
demolish or substantially renovate the Building, including but not limited to a
change of use of the Building and/or that portion of the Building in which the
demised premises are a part, then Landlord shall have the right to terminate
this lease as
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of the last day of any month thereafter upon not less than six (6) months prior
written notice by Landlord to Tenant. In the event that Landlord shall give such
notice, then upon the date specified in such notice for the termination of this
lease, this lease and the term and estate hereby granted shall terminate as
though such date were the date originally set forth in this lease for the
expiration of the term hereof, and Tenant shall, on or before such date, vacate
and remove from the demised premises in accordance with the provisions of this
lease.
69th. CLEANING AND DUMPSTER:
(a) RUBBISH REMOVAL AND REFUSE PICK-UP:
Tenant shall independently contract for and provide for the removal at
least biweekly of all garbage, refuse, waste and rubbish, at its cost and
expense. Garbage and refuse shall be kept in containers or dumpsters to be
provided by Tenant and placed in an area designated by Landlord for such
purpose. Garbage storage and removal shall be subject to such rules and
regulations as, in the reasonable judgment of Landlord, are necessary for the
proper operation of the Property.
(b) PREMISES AND BUILDING CLEANING:
(i) Tenant shall, at its cost and expense, take good care of and keep
clean and free from debris the interior of the demised premises, including,
without limitation, all restrooms therein which shall include replacement of
papergoods, in a manner reasonably satisfactory to Landlord. No one other than
persons approved by Landlord shall be permitted to enter the demised premises or
the building of which it forms a part for the purpose of cleaning the demised
premises.
(ii) cleaning of public hallways, public lobbies, public vestibules, and
public restrooms, including replacement of paper goods shall be the obligation
of Landlord.
LANDLORD:
LONG ISLAND INDUSTRIAL GROUP LLC
By: /s/ [ILLEGIBLE]
---------------------------------
Managing Member
TENANT:
PORTA SYSTEMS CORP.
By: /S/ [ILLEGIBLE]
---------------------------------
Title
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SCHEDULE "A"
RENTAL SCHEDULE
COMMENCEMENT DATE:. The day after substantial completion of Landlord's Work set
forth in Landlord's Work Criteria in accordance with Paragraph 50th of this
Lease.
EXPIRATION DATE: The last day of the Fifth Lease Year.
LEASE YEAR: The term "Lease Year" shall mean a period of time conforming to the
following: The first "Lease Year" of the term of this lease shall mean the
period beginning on the Commencement Date and ending on the date twelve (12)
months after the first day of the first month following the Commencement Date,
unless the Commencement Date is the first day of a month, in which case the
first Lease Year shall terminate on the date twelve (12) months after the
Commencement Date; the second Lease Year of the term of this lease shall
commence on the day following the last day of the first Lease Year and end
twelve (12) months thereafter; and succeeding Lease Years during the term of
this lease shall commence and end on dates corresponding to those on which the
second Lease Year begins and ends.
TERM ANNUALLY
FIRST LEASE YEAR $ 62,835.00 per annum
SECOND LEASE YEAR $ 64,720.05 per annum
THIRD LEASE YEAR $ 66,661.65 per annum
FOURTH LEASE YEAR $ 68,661.50 per annum
FIFTH LEASE YEAR $ 70,721.35 per annum
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Schedule "B"
LANDLORD'S WORK CRITERIA
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PORTA SYSTEMS CORP.
09-10-02
Tenant acknowledges and agrees to accept the Demised Premises in its "as is"
condition in all respects as of the date hereof, except for "Landlords Work."
Landlord's work shall mean and be strictly limited to the construction as
indicated on the plans attached to this lease (if applicable) and made part of
thereof and as described below. In the event of a discrepancy between the plan
and this work letter, the work letter shall take precedence. Landlord, at
landlord's expense, shall initially (one time only) perform Landlords work
within the demised premises in a building standard manner utilizing building
standard materials (or equivalent) and labor selected by Landlord.
1. Utility service to demised Premises:
a. Electric Individually metered service
b. Gas Existing common service.
c. Sanitary Existing.
2. Remove existing flooring and cove base. Remove all debris from premises.
Premises to be left in broom clean condition.
3. Landlord to construct offices as per attached plan
4. Existing acoustical ceiling grid and tile is to remain throughout. Replace
any damaged, stained or broken tiles.
5 Existing lighting and electrical outlets are to remain as is, in working
order throughout. Replace any damaged, stained or broken lens covers as
may be required.
6 Existing IIVAC is to be delivered in working order.
7. All doors to be delivered in working order.
8. Prep and paint all office walls with building standard paint finish. Color
selection by Tenant from samples provided by Landlord. Limited to a
maximum of three (3) colors with a Limit of one (1) color per room or
contiguous open area. Existing wood doors to be refinished as required.
9. Building standard carpeting throughout the office area. Color selection by
Tenant from samples provided by Landlord. Limited to a maximum of two (2)
colors with a Limit of (1) color per room or contiguous open area. Vinyl
cove base throughout.
10. Landlord is not responsible for telephone, computer, data or communication
wiring and all associated conduit and equipment required (for such.
Landlord is not responsible for the winning or connecting of Tenants
equipment. Elimination of any or all of the items of work listed above
will not constitute a credit.
Landlord shall diligently perform and complete all such portions of Landlord's
Work as soon as reasonably practicable.
Landlord's Work shall be deemed substantially completed notwithstanding the fact
that (I) minor or insubstantial details of construction, mechanical adjustment
or decoration remain to be performed or (II) portions of Landlord's Work have
not been completed because under good construction scheduling, such work should
not be done until after still incomplete finishing or other work to be done by
Tenant is completed. If the substantial completion of Landlord's Work shall be
delayed (lime to any act or omission of Tenant or its employees, agents or
contractors (including but not limited to any delays due to any additional work
that Tenant authorizes the Landlord to perform) or the inclusion in Landlord's
work of any work that is long-lead in nature, then, the substantial completion
of Landlords Work shall be deemed to have occurred on date when Landlord's Work
would have been substantially completed but for said delay.
Any additional work that Tenant authorizes the Landlord to perform will be at
the sole cost and expense of the Tenant and will include a fee of 21% of the
actual cost to the Landlord for the Landlord's supervision and overhead. Tenant
will execute a Work Authorization Form prepared by the Landlord and issue a
check for the full amount of the cost of such work (including 21%) PRIOR to the
Landlord performing any such work. Failing the execution of such Work
Authorization Form and payment, Landlord small perform only such work as is
presently shown on this Schedule B. However, nothing contained herein shall
obligate Landlord to perform any such additional work absent Landlord agreeing
to do so.
SCHEDULE "C"
RENT PAYMENT DIRECTIONS
MAILING DIRECTIONS:
Rent sent through the U.S. Postal Service shall be addressed as follows:
LONG ISLAND INDUSTRIAL GROUP LLC
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Tenant shall make all lease payments to this account until it is given written
instructions from Landlord to do otherwise.
NOTE: ALL CHECKS SHOULD BE MADE PAYABLE TO LONG ISLANID INDUSTRIAL GROUP, LLC
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LEASE SCHEDULE ODO
REQUIRED INSURANCE
(a) "All-Risk" Property arid Loss of Income Coverage for Tenant's
Property. "All Risk" (i) property insurance on a replacement cost basis,
covering all merchandise, movable non-structural partitions, business and trade
fixtures, machinery and equipment, communications equipment and office
equipment, whether or not attached to, or built into, the demised premises,
which are installed in the demised premises by, or for the account of, Tenant
without expense to Landlord and that can be removed without structural damage to
the Property, and all furniture, furnishings and other articles of movable
personal property owned by Tenant and located in the demised premises
(collectively, the "Tenant's Property"), all in an amount not less than the full
replacement cost of all such property and (ii) loss-of-income insurance in an
amount sufficient to assure that Landlord shall recover the loss of any rental
income due and owing to Landlord from Tenant under the terms of this lease,
which coverage shall provide such protection to Landlord for a period of not
less than twelve (12) consecutive months. The total amount of the deductible
required under each policy providing such coverage shall be no more than
$1,000.00 per loss. Landlord, Agent and any other parties designated by Landlord
(including, but not limited to, its beneficiary, its general and limited
partners, and Superior Mortgagees and/or Superior Lessors) shall be included as
loss payee(s)
(b) Liability Coverage. Commercial general. public liability and
comprehensive automobile liability (and, if necessary to comply with any
conditions of this Lease, umbrella liability insurance) covering Tenant against
any claims arising out of liability for bodily injury and death and personal
injury and advertising injury and property damage occurring in and about the
demised premises, and/or the Property and otherwise resulting from any acts and
operations of Tenant, its agents and employees, with limits of not less than
total limits of $2,000,000.00 per occurrence and $5,000,000.00 annual general
aggregate, per location. The total amount of a deductible or otherwise
self-insured retention with respect to such coverage shall be not more than
$1,000.00 per occurrence. Such insurance shall include, inter alia:(i)
"occurrence" rather than "claims made" policy forms unless such "occurrence"
policy forms are not available; (ii) any and all liability assumed by Tenant
under the terms of this lease, to the extent such insurance is available; (iii)
premises medical-operations expenses in an amount not less than $5,000.00 per
person, per accident; (iv) Landlord, Agent and any other parties designated by
Landlord or Agent (including, but not limited to, its beneficiary, its general
and limited partners, and Superior Mortgagees and/or Superior Lessors) shall be
desi9nated as Additional Insured(s) with respect to (x) the demised premises,
and (y) all operations of Tenant, and (z) any property and areas and facilities
of Landlord used by Tenant, its employees, invitees, customers or guests; and
(v) severability of insured parties and cross-liability so that the protection
of such insurance shall be afforded to Landlord and its designees in the same
manner as if separate policies had been issued to each of the insured parties.
(c) Workers' compensation and employer's liability insurance in the state
in which the demised premises and any other operations of Tenant are located and
any other state in which Tenant or its contractors or subcontractors may be
subject to any statutory or other liability arising in any manner whatsoever out
of the actual or alleged employment of others. The total limits of the
employer's liability coverage shall be not less than the amounts specified in
Subparagraph (b) above.
(d) Other Coverage. Such other policy or policies as are either: (i)
reasonably required of Landlord by any Superior Mortgagee, Superior Lessor, or
any other party having any interest in the Property; or (ii) deemed reasonably
necessary by Landlord; or
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(iii) required by insurers by reasons of a change in Tenant's use of, or
activities at, the demised premises.
All insurance policies required under this lease Schedule shall: (i) be issued
by companies licensed to do business in the State in which the Property is
located and acceptable to Landlord and any Superior Mortgagees, Superior Lessors
and any other party having any interest in the Property; (ii) not be subject to
cancellation or material change or non-renewal without at least thirty (30)
days' prior written notice to Landlord and any other parties designated by
Landlord (A) to be loss payee(s) or additional insured(s) under the insurance
policies required from Tenant, or (B) to receive such notices; (iii) be deemed
to be primary insurance in relation to any other insurance maintained by
Landlord or Agent; and (iv) at the sole option and discretion of Landlord,
include other appropriate endorsements or extensions of coverage as would be
required of Landlord by any Superior Mortgagees, Superior Lessors or any other
party having any interest in the Property.
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SCHEDULE "E"
INSURANCE CERTIFICATE HOLDER/ADDITIONAL INSUREDS/LOSS PAYEES
CERTIFICATE HOLDER:
LONG ISLAND INDUSTRIAL GROUP LLC
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▇▇▇▇▇ ▇▇▇
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LOSS PAYEE BUSINESS INTERRUPTION COVERAGE
LONG ISLAND INDUSTRIAL GROUP LLC
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▇▇▇▇▇ ▇▇▇
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ADDITIONAL INSUREDS:
LONG ISLAND INDUSTRIAL MANAGEMENT, LLC
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GMAC COMMERCIAL MORTGAGE CORPORATION
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